THE BORDER REPORT

The lawyer for an Operation Lively Green defendant argued in court today that the FBI plied his client with cash, beer and sex to get him to run a load of cocaine.

The case of the latest defendant gives some pause to thought about the FBI’s motives behind the cocaine sting operation.

It’s the largest corruption sting in the history of the FBI; the agency told Congress that they were up to 99 cases now. But rather than an investigation, the sting case operated more like a peer-to-peer computer virus, spreading from one person to the next, flashing cash, setting up a drug run, then “flipping” the guilty into a snitch to co-opt yet more colleagues.

The entire sting has the air of a numbers-pump, beefing up the stats for Justice Department, or maybe a Milgram experiment, to see how far a person will go when presented with the depraved.

The formula was simple: take a group of young people, not too bright, ply them with booze and sex, then flash some cash around and see who takes the bait.Consider the case of Phillip Varona, sentenced this morning to 30 months in prison. A silvery chain manacled his ankles, his hands clasped behind him, his body shrouded in a bright orange prison jumpsuit, Varona apologized to U.S. District Court Judge Cindy Jorgenson for a growing string of crimes.

“You’re out of control,” Jorgenson said. Varona, 24, is the meter-maid of the Nogales, Ariz. Police Department, convicted on conspiracy to commit bribery of a public official. He’s a mess and, on a side note, perhaps Justice Department should be looking at the hiring standards of municipal police departments instead of busting low-end suckers.

According to his sentencing: On June 12, 2002, Varona ran ten keys of cocaine from Tucson to Phoenix, in uniform, for which he was paid $7,000. A month later, he did it again, running another ten keys from Nogales to Tucson for $8,000. Then he recruited another cop, Eddie Rosas, to run more loads. Then in June 2004, he was sentenced to probation on a domestic assault charge. To top it off, Varona is currently facing charges in superior court for possession with intent to sell 120 pounds of dope; he was arrested in February 2005 on that charge. It’s hard to be sympathetic.

Until you consider the Lively Green set-up. Defense attorney Roberto Montiel argued that Varona was 19 at the time of the set-up. He was approached by Leslie Hidalgo, 26, a private first class in the Arizona Air National Guard. One thing led to another and soon, an informant named “Frank” and another man who claimed to be Hidalgo’s uncle (he was also a snitch), joined Hidalgo and Varona in Nogales, Sonora, drinking beer and setting up the deal. (Frank, I presume, is Frank Arvizu, identified in investigative reports as the informant who led a group of guys like Varona to Las Vegas where a woman was “possibly” sexually assaulted.)A few days later, Hidalgo called Varona and – depending on whom you believe, the United States or Varona’s lawyer – she either fell for Hidalgo and started sleeping with him, or, desperate perhaps to get out of her own hole, started sleeping with him under the encouragement of the FBI, using her body to ply him when he wavered.

“I’m not trying to excuse Philip, but the bait that was used, 19 years old, young man, alcohol; Phillip took the bait and he swallowed it, hook, line and sinker,” Montiel said.

“That makes Phillip guilty but I think the government should not be involved in baiting,” Montiel said.

Jorgenson dismissed Montiel’s claim that Varona suffered a learning disability, saying, “it was probably immaturity and impulisivity.”

But, she did call on prosecutor John W. Scott of the Public Integrity Section of the Criminal Division, to answer the charges of the trip to Mexico.

Scott, who’s been working this case ever since former U.S. Attorney Paul Charlton refused to take the case because of the dirty snitches the government was using, gave an interesting interpretation.

“Mrs. Hidalgo is a private citizen and Mr. Varona is a private citizen,” Scott said. “What they did together was their business.”

The arguments are shaky all around in Operation Lively Green. The defense argues that Varona was plied with liquor, cash and warm thighs. The prosecutor argues that Varona chose for himself when he took the money.

The premises are even more shaky. The defense argues that his client suffers from a learning disability and repeatedly referred to Varona as a child. The prosecutor argues that Varona was in control of his own decisions and demonstrated complicity by pointing out that Varona picked a spot in his own police cruiser where the cocaine could be safely stashed.

But Jorgenson chose an interesting argument with which to sentence Varona.Starting at level 32 of the sentencing guidelines, she could have subtracted three because he accepted responsibility, then added one for his prior criminal history (because he still hasn’t been sentenced for the weed offense, she couldn’t take that sentencing into consideration).Under normal guidelines, Varona faced 7.25 to 9 years in prison.

But the plea agreement called for a maximum 5 years while probation recommended a little over three. The low-end sentence was given, two-and-a-half years in prison, a $15,000 fine and three years probation.Her premise was fascinating, and seemed to acknowledge heavy government intervention in a fake coke sting.

“There was no risk of circulation of the cocaine … and it occurred in 2002 and here we are in 2007,” Jorgenson said.

In the end, Jorgenson fell beautifully between what Varona and the United States wanted.

Her acceptance of the plea agreement suggests two realities were at issue in the FBI sting:1) Operation Lively Green was never a corruption issue, it was a set-up by the FBI.2) In his mind, Varona thought he was running loads of coke for a drug cartel; his immaturity and foolishness makes him corrupt.

Operation Lively Green flashed a lot of cash around. The, ummm, less brilliant, took the bait. But does it weed out corrupt public officials or simply snatch the weak?

Attorney General Alberto Gonzales once compared Lively Green to the busting of Jack Abramoff and the prosecution of former Qwest CEO Joseph Nacchio.

I disagree; Lively Green fell dangerously close to entrapment and suckered a lot of people prone to stupid decisions. Varona is no Abramoff.

Stay tuned for Part Four, where we look at how desperate the FBI became to build Operation Lively Green.

-- Michel Marizco