Copyright © 2016 Albuquerque Journal
FOR THE RECORD: This story identified Democratic Bernalillo District Attorney candidate Edmund Perea as a former prosecutor. He works on contract as a special prosecutor in the 13th Judicial District, covering Valencia, Sandoval and Cibola counties.
In 2012, a federal judge accused an up-and-coming assistant U.S. attorney in New Mexico of trying to “unfairly alter” a transcript of a recorded encounter between drug agents and an Amtrak train passenger suspected of carrying a stash of crack cocaine.
Weeks later, in an unusual action, the U.S. Attorney’s Office asked the judge to withdraw her negative written comments about prosecutor Raúl Torrez, contending her findings could lead to an internal U.S. Justice Department inquiry and possible disciplinary action.
The U.S. Attorney’s Office denied that Torrez acted in bad faith but acknowledged in a court filing that there were “imperfections” in how the evidence was prepared and presented for a pretrial hearing on whether the search of train passenger Billie Tiea Vaughn was illegal.
Torrez, who left the U.S. Attorney’s Office in 2013, is a candidate in the June 7 primary election for the Democratic nomination for state district attorney for Bernalillo County.
Torrez said in a recent interview that he regrets there was a “misunderstanding” of a transcript he initially offered at the October 2011 hearing on a defense motion to suppress the evidence. He said he never intentionally tried to mislead anyone.
In her final ruling, Chief U.S. District Judge M. Christina Armijo found that Vaughn had been “coerced” into submitting to the search by two drug agents. But heeding the U.S. Attorney’s Office request, she removed this paragraph that appeared in her original order:
“Based on the foregoing, the Court finds that the Government attempted to unfairly alter the content of the official transcript and thus the substance of what is purported to be represented on the audio recording in the case. Specifically, the Court finds that the Government attempted to take advantage of the obviously poor quality of the audio recording and the chaotic environment in the train car by having its witnesses … make substantive changes to the official transcription of the recording in a manner that favored the government’s case.”
She also deleted other language that faulted the testimony of the two drug agents during the suppression hearing as being “colored or influenced by the government’s efforts.”
The day after Armijo filed her amended ruling in January 2013, prosecutors dismissed the felony drug possession case against Vaughn.
Torrez resigned six months later to work as a civil attorney in private practice in Albuquerque.
Torrez said he was never disciplined or asked to leave the U.S. Attorney’s Office and said his departure was unrelated to the Vaughn case. He spent about 2½ years as a federal prosecutor.
In hindsight, Torrez told the Journal, he wouldn’t have used any transcript in the Vaughn case – and would have relied on the audio recording, which was unintelligible at times, and on the testimony of the two agents who arrested Vaughn on April 18, 2011.
“I could have done a better job … but I had no idea there were going to be any kind of findings (from the judge),” Torrez said. As for the problems in preparing the evidence, Torrez noted he “had 50 other cases going on (at the time).”
“I was pretty surprised and upset (at the judge’s initial ruling),” Torrez told the Journal. “I’m pretty protective of my professional reputation. I’ve worked extremely hard both in school and my professional life. And the idea that I would jeopardize all of that, and my law license, for a drug case? That, frankly … doesn’t make any sense.”
Judge Armijo didn’t respond to a request for comment about the Vaughn case. The U.S. Attorney’s Office declined to comment, saying it was a personnel matter.
Kenneth Gonzales, who was U.S. attorney in New Mexico at the time of the case and is now a U.S. district judge, referred the Journal to “the publicly-filed briefs” and the U.S. Attorney’s Office.
Steve Yarbrough, who was first assistant U.S. attorney and signed the court motion asking the judge to withdraw her remarks about Torrez, declined to comment. He is now a U.S. magistrate.
Torrez, 39, said he left the U.S. Attorney’s Office to broaden his legal experience, which previously included a one-year stint as a White House fellow and working as a prosecutor in the Valencia County District Attorney’s Office and the state Attorney General’s Office. He has been a lawyer for 11 years.
Torrez faces special prosecutor and retired Albuquerque Police Department officer Edmund Perea in the Democratic primary for district attorney.
Torrez characterized the Vaughn prosecution as a “run-of-the-mill train case.” When Amtrak trains stop in Albuquerque, the U.S. Drug Enforcement Administration routinely checks passenger train ticket stubs for signs of drug couriers or traffickers.
Vaughn and her cousin, both from Connecticut, had purchased one-way tickets from Los Angeles to Chicago with cash on the same day the train departed.
That raised red flags for DEA Agent Jarrell Perry, he later testified, so he approached the two women on the train to ask if they would allow their bags to be searched. Working with Perry was APD officer Jeannette Tate, who was on hand to conduct pat-downs of female suspects.
During Tate’s search of Vaughn, she found 43 grams of crack cocaine inside the woman’s sweatpants.
At issue in the October 2011 suppression hearing was whether Vaughn gave full, knowing consent to the search.
Perry wore a recorder on his belt to document such encounters, but Torrez told the judge at the hearing that an initial transcript of Perry’s recording by a professional court reporting service left questions about who was saying what.
So before the hearing, Torrez said, he asked both Perry and Tate to review that transcript and make changes based on their recollection of what occurred.
Torrez made a new transcript that combined their changes and informed the judge during the hearing that he wasn’t offering it as evidence but an “aid” for listening to the recording.
Defense attorney Cliff McIntrye objected, telling the judge, “They’re trying to make an illegal search legal by making changes in the transcript.”
Torrez ultimately withdrew the revised transcript from consideration.
Judge Armijo concluded Vaughn was too distracted, in part by being on her cellphone, to have unequivocally given consent to the search.
Both the defendant and DEA Agent Perry testified at the suppression hearing that Vaughn was talking on the phone when Perry asked her whether she would agree to a pat-down.
He made the request after an earlier search of the cousins’ luggage turned up no contraband.
Perry had also identified Vaughn as the unidentified woman heard on the audio recording saying, “Can I call you back?”
But the revised transcript presented by Torrez showed that APD officer Tate, not the defendant, asked the question, “Can I call you back?”
At the hearing, Tate also testified that Vaughn wasn’t on her cellphone when Perry asked for her consent.
Tate had been elsewhere on the train when Perry went to find her so she could perform a pat-down of Vaughn and her cousin.
Tate testified she got a call from her office “during the time I was following agent Perry to meet – talk with the females.”
Later in the hearing, however, Torrez told the judge he understood Tate’s testimony was that she received the phone call “probably when the pat-down’s happening.”
At one point in the hearing, defense attorney McIntyre interjected, “It’s just clearly unreasonable to think that (Tate) was talking on her cellphone while she was searching somebody.”
He argued that Tate’s version of events would “save the day” for the government, which could argue Vaughn wasn’t distracted by the phone and therefore “could understand” that Perry asked for her consent to search.
After the judge pressed the issue at the hearing, Torrez said, “They’re both on the phone.”
“Well, why didn’t the tape recording then pick up both phone calls?” Armijo asked, according to a 202-page transcript of the pretrial hearing.
Torrez eventually stipulated that the defendant was on the telephone. But he dismissed the issue as “irrelevant,” telling the judge that even if Vaughn was on the phone, she “can clearly understand what’s going on.”
Torrez told the Journal that he changed the transcript before the suppression hearing because Tate had reviewed the audio recording and identified herself as the woman on the phone. “She knows what her voice sounds like … so I changed that,” he said.
Tate, who couldn’t be reached for comment, retired from APD in 2014. Perry didn’t return a phone call seeking comment.
In ruling the search illegal in November 2012, Armijo found that Vaughn couldn’t have freely consented because she was distracted not only by being on her cellphone, but by the multiple overlapping conversations occurring at the same time and the train noise.
Vaughn did say “yes” when Perry asked her about the pat-down, the judge noted. But “without any break in her speech,” Vaughn then inquired why she and her cousin were being singled out. The “yes” was an acknowledgment that Perry had spoken to her, rather than an affirmative consent to submit to a search, the judge wrote in her ruling.
Agent Perry also never clarified that the defendant didn’t have to consent to the search, the ruling also said. The judge concluded the drug agent initially “misrepresented” his reason for the search, telling the cousins he was looking for passengers carrying weapons or explosive devices.
“Thus the official misconduct was significant,” the judge wrote.