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Judge Rules Against Ex-DEA Informant, Shows How The System Is Designed To Screw Sources

The Huffington Post The Huffington Post 29/03/2016 Nick Wing
ATHENA IMAGE © Courtesy of Carlos Toro ATHENA IMAGE

A federal judge sided with the U.S. government on Friday, dismissing a lawsuit brought by a former confidential informant for the Drug Enforcement Administration who claimed the agency owed him for 29 years of undercover work. 

The DEA and other federal law enforcement agencies use such informant programs extensively. A judge's decision to grant the government's motion to dismiss the $5 million lawsuit in the U.S. Court of Federal Claims demonstrates how officials take advantage of confidential sources without worrying about potential legal or financial liability.

Carlos Toro, a 66-year-old Colombian national who has lived in the U.S. for nearly 50 years, began working for the DEA in the 1980s. He used his former position with the Medellín cartel in South Florida to help build investigations.

For nearly three decades, Toro worked on and off as an informant, providing intelligence in a number of big-name drug trafficking cases and going undercover in the U.S., South America and Europe.

Toro first told his story to The Huffington Post for a piece published last year, which marked the end of his involvement with the DEA.

In the complaint he filed in September, Toro claimed the U.S. government had failed to compensate him for his services. Toro said he expected to be paid under the terms of an implied-in-fact contract -- but those terms were never put in writing.

The DEA is notoriously tight-lipped about the rules of its confidential source program, but agents don't typically make promises to their informants, and are discouraged from putting any agreement on paper, experts told HuffPost last year.

Last week, Judge Thomas C. Wheeler ruled that Toro had not provided evidence to "establish the existence of a binding contract." Wheeler also suggested Toro's claim could be barred by a six-year statute of limitations.

Wheeler then went on to list a set of criteria that he said Toro had failed to meet.

"To show a plausible claim of an implied-in-fact contract, Mr. Toro must plead facts to demonstrate: (1) mutuality of intent; (2) consideration; (3) lack of ambiguity in the offer and acceptance; and (4) the government representative whose conduct is relied upon had actual authority to bind the United States," Wheeler wrote.

Those standards are typical in cases regarding contracts with the U.S. government. But they're far less practical in the shadowy world of confidential sources, which includes an estimated 4,000 operatives who often assume great risk, with few legal protections and little promise of fair treatment. Such obscurity doesn't translate well into legal settings.

“The whole world of informant use is built on fuzzy ethics, the toleration of hypocrisy, inequitable treatment and often coercion,” Alexandra Natapoff,  a professor at Loyola Law School and an expert on informants in the criminal justice system, told HuffPost last year. “So that is a tricky world to ask people to do the right thing.”

Like many informants, Toro was never given explicit terms for how much he could expect to be compensated, or when. Furthermore, he initially agreed to work with the DEA to get himself out of legal trouble, as he was facing a potential charge for conspiracy to traffic cocaine stemming from his role in the cartel. Toro wasn't exactly in a position to negotiate.

Toro helped put away Carlos Lehder, the cartel's second in command, in the late '80s, and says he continued to help the DEA because he was led to believe he would eventually get paid. At worst, Toro says he was confident that his work would engender some goodwill with the federal government should he need it. Instead, the DEA refused to help him get permanent citizenship toward the end of his career, and actually used his immigration status as leverage to keep him working.

The cards were always stacked against Toro, and he says Wheeler's ruling is evidence that this is true in the court system as well.

"This is deliberate. This is a conspiracy that works from day one back to many years of DEA working with informants -- they want to make sure that if this goes to court, it doesn't get any traction," Toro told HuffPost in an interview on Tuesday.

"The judge's ruling is an embarrassment to the U.S. government," he continued. "If you're working in an undercover capacity for any federal law enforcement agency, how in the world does the judge expect to have a contract in writing? This is a decision that hasn't been well thought about and examined. The judge, in my opinion, just picked up the file and put a stamp on it without reading and giving value to the argument."

Toro said he now wants to take his complaint to the court of appeals. If the core injustices of the informant program are being used as legal reasoning to dismiss his case, he said, he hopes to challenge the program more broadly.

Toro's attorney, Michael L. Avery Sr., was not immediately available for comment. The DEA also did not return a request for comment.

For now, however, Toro is preoccupied with another concern: that the federal government might try to deport him as retribution for his troublemaking. Although he has lived here since the 1960s, Toro lacks American citizenship. For years, he was only able to remain in the U.S. on the condition that he continue helping the DEA. Toro says he has had nagging health problems in recent years, and is still suffering because he lacks access to Medicare benefits or legal employment.

Toro filed for asylum last year, but hasn't received a decision on whether his application has been accepted or denied. That means his legal status is still in limbo, and he could technically be sent back to Colombia.

"That would be a death sentence," said Toro, explaining that his high-profile work for the DEA would likely make him a target for remnants of the cartel. "Not that I care about a death sentence, but if I'm gonna die, I want to die in my house next to my wife and kids. That's not far from happening, but until that happens, I want to fight until the end."

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