Prosecutors: Deputy's excessive force, false reports were not investigated

The State Attorney's Office has concluded that the actions of former Marion County sheriff's deputy Eduardo Bustamante are so out of line he cannot be trusted and they cannot accept any of his testimony in criminal cases.

In a lengthy report about Bustamante, prosecutors appeared troubled by the growing number of deputies who have ended up on the wrong side of the law. In this latest example, the SAO has sent to their report to the FBI.

“While the vast majority of law enforcement officers are honest, trustworthy individuals who do hard, and often dangerous work, we cannot ignore the fact that there have now been over a dozen Marion County deputy sheriffs who have been convicted, indicted, fired, demoted, suspended, or are currently under investigation for actions that involve, in part or in whole, false reports or testimony,” according to the 14-page document prepared by Chief Assistant State Attorney Ric Ridgway.

Equally troubling to prosecutors are the use-of-force complaints and other examples of apparent improprieties involving Bustamante for which no internal affairs reports were done and nothing was documented in the deputy's file.

SAO officials noted that, aside from them, “judges and members of the defense bar have expressed concern about cases involving Deputy Bustamante.”

Ridgway's report has been sent to the FBI, the Public Defender's Office and the president of the Marion County Criminal Defense Bar.

State Attorney Brad King, in a letter addressed to Sheriff Chris Blair, said his office “will not accept any case for prosecution if the testimony of Deputy Bustamante is required.

“In over thirty years as a prosecutor, I have been forced to take this action only once before. However, given the facts set forth in this memo, this action is necessary to protect the integrity of the criminal justice system,” King stated in the letter.

In a prepared statement released Tuesday, Blair said he is "extremely disappointed and disheartened" to receive the SAO's report. He underlined Ridgway's point that the vast majority of deputies "are honest, trustworthy individuals who do hard and often dangerous work."

He added: "We are all human. That is why we have multiple safeguards in our criminal justice system — to make sure the truth prevails. I respect the thorough process the SAO has gone through in this investigation to identify any issues of concern and stand behind their findings that may affect our agency."

Blair wrote that "of the dozen MCSO employees that have been involved in some form of trouble for providing some sort of false information, it is important to note that nearly all of those cases (9 of the 12) were self discovered by the MCSO through our customary case review process and nearly half of those individuals came from a single case."

"In my 38 years in law enforcement," Blair wrote," I have never personally had any use of force or misconduct issues, nor have I tolerated any such issues by those under my command. Similarly, as Sheriff, I will not and have not tolerated employee dishonesty. It is my hope that these types of issues are identified where they exist. And, where they are identified, I assure you that as Sheriff they will be promptly dealt with."

Bustamante was hired by the agency in August 2011 and, two years later, was a member of Blair's Tactical Investigation Unit – a specialized unit formed in 2013 to reduce crime. In April 2014, Bustamante was sent to the Patrol Division. Last Friday, Bustamante resigned.

The report is part of prosecutors' Case Integrity Review Team, created by them after the beating of drug suspect Derrick Price in August 2014. In that case, five former deputies were criminally charged by the federal government for violating Price's civil rights. Four have pleaded guilty. A trial is pending for the fifth man.

Since then, the SAO team has been combing through old and new cases looking for any evidence of falsified reports or unnecessary use of force.

The SAO's extensive document on Bustamante is divided into five sections.

USE-OF-FORCE CONCERNS

Ridgway wrote that the first phase of their review into Bustamante's cases examined allegations of excessive force used by the former deputy. During their probe, Ridgway and other prosecutors said they uncovered several instances of questionable behavior by Bustamante.

The behavior includes traffic stops that were based on trivial, or non-existent, traffic violations; questionable searches coming from Bustamante's allegations of smelling marijuana and reports that either did not include important details about searches or were "false as to a material fact."

Most of the arrests made by Bustamante were misdemeanor marijuana offenses, officials said.

As for the use-of-force complaints, the report states that, although two separate incidents were reported to the Sheriff's Office, "there was no formal internal affairs report prepared in either case."

In the case of State vs. Johnny Ostane, on July 8, 2013, Bustamante was working an off-duty detail at the Waffle House off West State Road 40. He reported that Ostane came to the restaurant with another man. Bustamante said he was talking with Ostane and later asked him for his driver's license. The report states the former deputy did not give a reason why Bustamante and Ostane talked or why it was necessary for Bustamante to ask Ostane for his driver's license.

Ostane told Bustamante he did not have a driver's license. When Bustamante tried detaining Ostane, Bustamante said he was punched in the face. Losing his grip, Ostane ran into a wooded area.

While Ostane's account of the events was similar in some respects, Ostane said he was beaten by the former deputy.

Continuing with his report, Bustamante said that in the woods Ostane "took a fighting stance and began swinging his arms" at him. Bustamante said he took out his baton and hit Ostane on his upper right arm and upper thigh. Despite the blows, Bustamante said Ostane continued to fight him. He said he had to hit him again in the right upper arm and Ostane fell down. Bustamante said Ostane continued to fight him and he had to keep "punching the defendant in order to take him into custody." At that point, Bustamante said Ostane wanted to surrender and was handcuffed.

Bustamante's deposition and the MCSO green team report — the standard review in cases involving use of force — were clear about how many times he hit Ostane. However, when prosecutors talked with Ostane, they heard a different story.

Running into the woods, Ostane said he tripped and fell. On the ground, Ostane said Bustamante repeatedly hit him with the baton and yelled at him "to stop resisting." Ostane said he begged Bustamante to stop hitting him, but "the beating continued." Ostane insists he was never punched by Bustamante.

Ostane allowed prosecutors to view pictures of his injuries and officials said "Ostane was clearly struck in his arms, back and head with the baton." At least two of the blows were to the right side of Ostane's head, three were to his back and there were multiple hits to his right arm.

Prosecutors determined the blows were consistent with a right-handed person, which the former deputy is. They also concluded that Ostane was hit from behind and that Bustamante was “not truthful in his report or deposition about the number of times Mr. Ostane was struck with the baton.” Bustamante, they added, was not “truthful about where he struck Mr. Ostane.”

A complaint was filed at the MCSO for excessive use of force and the complaint was documented as received. The report states the investigation was put on hold until Ostane's criminal charges were completed.

“None of the documents produced pursuant to our subpoena show the investigation was completed,” SAO's case integrity report states.

On Nov. 30, 2015, prosecutors issued a subpoena to the MCSO for copies of Bustamante's personnel file, internal review files, complaints made about him, and all his in-car camera and body camera videos.

Although Ostane wanted a jury trial, he acted on advice from his attorney that if he went to trial and was found guilty he might receive a harsh sentence. He pleaded guilty to battery on a law enforcement officer, resisting an officer with violence and driving while license was suspended or revoked.

State records show Ostane was sentenced in May of last year and is scheduled to be released in August.

Ostane's case was forwarded to the U.S. Attorney's Office for its review. Last month the FBI notified the Sheriff's Office that they are investigating the incident. A spokeswoman for the U.S. Attorney's Office said they cannot confirm or deny whether an individual is under investigation.

On Sept. 10, 2013, Bustamante, then assigned to the TIU, was in a vehicle with a colleague when they saw the windows of a vehicle that looked too dark. They tried stopping the vehicle, but it didn't immediately stop and instead pulled into a driveway. The deputies, along with the driver of the other vehicle, Courtney Carpenter, then got out.

According to the other deputy's' report and Bustamante's trial testimony, Carpenter refused to listen to them and was “escorted” to the ground. Once there, the deputies said he refused to be handcuffed. Carpenter was charged with fleeing and eluding and resisting arrest without violence.

Prosecutors talked with Carpenter and he admitted he didn't immediately stop because it was an unmarked vehicle. He said he put his hands out the window and waved to let the deputies know he saw them and wanted to stop somewhere safe. He said he pulled into his grandmother's home.

Carpenter said he got out of his car and that, when he tried asking the deputies what he did, he said they yelled at him to get on the ground and then threw him on the ground. He said he gave Bustamante's partner one of his hands. Carpenter said he was unable to give them his other hand because he had two deputies on him. Carpenter said Bustamante punched him several times in the face.

At the Marion County Jail, Carpenter said Bustamante wanted him to sign paperwork to forfeit his vehicle to the MCSO, which he refused to do. Asked why he was hit, he said Bustamante told him, "You're lucky you didn't get the stick."

There was no internal investigation about the allegations of excessive use of force, and the green team report obtained by prosecutors doesn't mention Carpenter being hit in the head.

At trial, both deputies testified. Two witnesses testified they saw Bustamante hit Carpenter. Bustamante admitted at trial he struck the man in the face with his fist “in order to force him to comply.”

The jury found Carpenter not guilty, and jurors told the judge they "were concerned about what the deputies did after Mr. Carpenter got out of the car," Ridgway's report states.

After the trial, prosecutors interviewed one of the witnesses, who said she saw Bustamante punch Carpenter in the head several times.

The judge was also concerned and met with prosecutors. A meeting was arranged so the judge and sheriff's officials could talk. At the meeting, the judge told them about the jury's concerns and sheriff's officials removed Bustamante from the TIU.

Prosecutors said Bustamante's file mentioned his removal from the TIU and transfer to patrol "for failing to appear at two depositions." However, it doesn't mention anything about meeting with the judge, the juror concerns, “nor any indication Mr. Carpenter's complaint was followed up on after the trial.”

PROBLEMS WITH POLICE WORK

Sections two, three, four and five of Ridgway's report address what he described as “invalid traffic stops, coercive tactics, misleading police reports after illegal stops, searches and questioning and material misrepresentations.”

For example, Bustamante stopped a vehicle for allegedly driving over the yellow line while making a turn. The driver was told to go to the side of the patrol car – out of camera range – where the individual was told by Bustamante that he smelled marijuana and was going to search the vehicle.

The driver and two passengers were searched and Bustamante found a small amount of marijuana in the trunk. One of the occupants said the weed belonged to him and was given a notice to appear.

“First, it is unlikely a search would be upheld when it is based upon a claim of a 'strong odor of fresh marijuana emitting from inside the vehicle (even if true),” Ridgway wrote. He argued that the small amount of marijuana was found in a plastic bag, inside a gym bag that was in the back in the trunk of a car.

Another instance highlighted by prosecutors was that Bustamante stopped a car going 40 mph in a 55 mph zone. He told the driver "he was being stopped for impeding the flow of traffic." The report states that “once the traffic stop occurred, it was over 5 minutes before any car going in the same direction came by.

“The only traffic being impeded was Deputy Bustamante."

According to the report, shortly before the stop, the car Bustamante was following had to almost stop so it wouldn't hit a car that pulled out from a side street. The second car was not stopped. Bustamante ticketed the driver of the car he was following for having an expired driver's license.

A third instance shows Bustamante was following a car on a two-lane road and the driver used his left turn signal and turned left. Then, when making a right turn, the driver drove for 23 seconds before turning right. Bustamante stopped the vehicle and, according to the SAO report, told the driver: "You had your blinker on that you were going to make a left turn, right turn, what not. You passed several streets without making a turn. I didn't know how far you were traveling with your light on and other traffic behind me trying to figure out where this guy is going.” The driver did not receive a ticket.

And, in a fourth example, Bustamante stopped a vehicle though the video doesn't show why. It was determined the driver didn't have a driver's license and she was given a citation. Butamante spent more than 10 minutes trying to persuade the driver to allow a search of the car. The woman asked if she was free to go each time. Eventually, Bustamante released her.

Ridgway pointed to several reasons why their office never suspected Bustamante. First, he said the former deputy's cases were given to many prosecutors, with each unaware of cases that posed problems. Secondly, he said, prosecutors relied on a deputy's "presumption of correctness" to reports they received "much like a judge does at first appearance."

The report notes that "having reason to question the accuracy of the reports prepared by law enforcement is a fairly recent development."

Contact Austin L. Miller at 867-4118, austin.miller@starbanner.com or @almillerosb.