Border agent says China ordered his prosecution

Now seeks $25 million from government after acquittal on excessive force charge

A Customs and Border Protection agent who was acquitted of a charge of using excessive force during a 2004 arrest of a Chinese national on suspicion of drug smuggling is suing the U.S. Department of Homeland Security for $25 million. And in a companion lawsuit, Robert Rhodes is seeking another $25 million from three Immigration and Customs Enforcement agents with the Office of Professional Responsibility.

He says the agents disregarded their oaths by pursuing a politically motivated prosecution against him to appease their superiors, who allegedly were seeking to do what communist China wanted. "I was involved in a political prosecution that our government began at the demand of the government of communist China," Rhodes told WND. "The prosecution was promised to China by then-Secretary of State Colin Powell and then-Secretary of the Department of Homeland Security Tom Ridge."

His lawyer, Steven Cohen, concurs. "My client's prosecution was ordered by the Bush administration to appease the Chinese government," Cohen told WND.

WND requests for comment from the U.S. Department of Justice and U.S. Customs and Border Protection in the Department of Homeland Security did not produce a response from either agency. But it's not the only time there have been indications that U.S. prosecutors have agreed to file a case against a border agent at the direction of a foreign government. WND has reported that Border Patrol agents Ignacio Ramos and Jose Compean were prosecuted only after the Mexican Consulate intervened and presented Osvaldo Aldrete-Davila, the Mexican national drug smuggler who had illegally entered the U.S. in the Ramos-Compean incident, and demanded the Border Patrol agents who shot Davila be prosecuted.

WND also reported Rocksprings, Texas, Deputy Sheriff Gilmer Hernandez was only prosecuted at the insistence of the Mexican Consulate. WND has printed copies of a series of letters the Mexican Consulate wrote demanding that the U.S. government protect the civil rights of the Mexican national illegal immigrants who were in the fleeing van that Hernandez shot at, after the van allegedly tried to run Hernandez over in the process of fleeing from a routine traffic stop.

In Rhodes' case, the record shows that Powell and Ridge both apologized to China over the incident and promised to investigate the border agents involved. "By filing this lawsuit," Andy Ramirez, chairman of the Friends of the Border Patrol, a national advocacy group for federal border patrol agencies, explained to WND, "Robert Rhodes is standing up to the government and saying you cannot continue doing to my fellow ... officers what you did to me."

The July 21, 2004, incident that led to Rhodes' prosecution involved Zhao Yan, a Chinese national woman who was arrested by Rhodes at the Rainbow Bridge in the Port of Buffalo, New York. Zhao Yan was with two other female suspects who fled when Rhodes and 13 other border agents attempted to arrest them. Rhodes grabbed Zhao Yan, who proceeded to punch, kick, and scratch Rhodes as he attempted to subdue her. Even though Rhodes was armed with a duty-issued Glock 9 mm weapon, he chose to use non-lethal pepper spray to subdue Zhao Yan. But within a day of the Rainbow Bridge incident, Rhodes was arrested and charged with violating Zhao Yan's civil rights by having used excessive force in arresting her.

Other border officers who had assisted Rhodes in the arrest gave inconsistent statements to investigators, claiming that Rhodes had forcefully grabbed Zhao Yan by the hair and smashed her head against the ground. At his trial in August and September 2005, the jury acquitted Rhodes of all charges, after deliberating less than three hours.

Rhodes' allegations he was prosecuted at the insistence of the Chinese government are backed by postings yet archived on Chinese Consulate websites. The Consulate-General of the People's Republic of China in Houston, Texas, continues to document on their website that Powell wrote a letter to the Chinese government promising that the U.S. government would "thoroughly investigate the beating case" of Zhao Yan. The Chinese Consulate in Houston argued that Zhao Yan was "a business woman from China's northern coastal city of Tianjin," who was on her first U.S. business trip when "she was attacked at Niagara Falls near the U.S.-Canadian border on July 21 by Rhodes and other officers of U.S. Customs and Border Protection." The Consulate went on to claim that six days after Zhao Yan was "brutally attacked," she "was still suffering from a bad headache, swollen eyes and mental trauma. She also had a broken tooth and severe back pains which forced her to ride in a wheelchair."

But nowhere does the Chinese Consulate in Houston say she was suspected of drug smuggling. Instead, the Consulate emphasized that Powell apologized because the U.S. is an "open society" that welcomes visitors. "Our goal is to ensure that visitors from around the world have a safe and enjoyable stay in the United States," the Consulate quoted Powell as saying. "The United States will continue to work that incidents such as this one do not occur again."

The Consulate-General of the People's Republic of China in New York still posts the apology from Ridge, who is quoted as expressing his "great regret" over "the beating of Chinese businesswoman Zhao Yan by officers of the U.S. Customs and Border Protection last week." Ridge is further quoted as saying, "We have communicated to the Chinese Government that the U.S. customs officer was arrested by Customs and Border Patrol police and his case referred for criminal prosecution."

Even though he was acquitted at his trial, Rhodes paid a huge price for being indicted. "Since the incident," Rhodes told WND, "I've lost my house, I've lost my pension. I have tried to find a job and I always get turned down. I feel like I have been black-balled by the government. I am on food stamps and public assistance. Right now, I have no health care insurance." "Many Border Patrol agents tell us they're truly concerned about what will happen to them if they get into a struggle with someone trying to enter the country illegally," said Cohen. "How many terrorists and criminals will enter our country because our government won't support its own border enforcement officers?"

A complicating factor is Rhodes' admitted homosexuality. He earlier had complained to the Equal Employment Opportunity that Customs and Border Protection harassed him for minor offenses.

Cohen contended that every aspect of Rhodes' trial was political. "Every day," he told WND, "the entire front row of the courtroom would be taken up by Chinese government officials and outside the courtroom Asian students picketed against Rhodes." Cohen told WND that for two years after his trial Rhodes pursued unsuccessfully administrative paths to get his job back. "Robert was suspended without pay immediately, right when the incident occurred," Cohen told WND, "But he wasn't formally terminated until a few months ago."

He said Rhodes legal fees including lawyers, expert witnesses, and investigators amounted to more than $200,000. "The vast majority of the legal fees have gone unpaid," Cohen told WND. "Rhodes was tremendously outgunned by the government. The government brought a staggering amount of resources to the job, not of searching for the truth, but making sure Rhodes was convicted, regardless what it cost."

Michael Battle was the U.S. attorney whose office prosecuted Rhodes. In the controversy surrounding Attorney General Alberto Gonzales, Battle resigned his position as the director of the executive office of U.S. Attorneys. Cohen said Rhodes' lawsuit against DHS alleges that the government investigators knowingly disregarded pertinent information and violated standard investigation procedures to pursue a politically motivated prosecution.

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