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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF NEW MEXICO




AARON ROMERO,
Plaintiff,

v. Case No. 14 CV 640

UNITED STATES OF AMERICA,
and
JOHN R.CASTLEBERRY, Special Agent
Drug Enforcement Administration, in his individual capacity,
PATRICIA G. WHELAN a.k.a. PATRICIA YAZZIE a.k.a. TRISH YAZZIE,
Special Agent Drug Enforcement Administration, in her individual capacity,
MATTHEW B. MAYFIELD, Group Supervisor (GS)
Drug Enforcement Administration, in his individual capacity
RAYMOND KEITH BROWN, Assistant Special Agent in Charge (ASAC)
Drug Enforcement Administration, in his individual capacity and
JOSEPH M. ARABIT, Special Agent in Charge (SAC)
Drug Enforcement Administration, in his individual capacity

Defendants.



COMPLAINT FOR MONETARY DAMAGES FOR PERSONAL INJURY
PURSUANT TO THE FEDERAL TORT CLAIMS ACT (FTCA), 28 U.S.C. 1346(b);
28 C.F.R. 14.2(a) AND FOR VIOLATIONS OF CONSTITUTIONAL RIGHTS, UNDER
THE FIRST AMENDMENT, SUBSTANTIVE DUE PROCESS UNDER THE FIFTH
AMENDMENT TO THE UNITED STATES CONSTITUTION AND CIVIL
CONSPIRACY, PURSUANT TO Bivens v. Six Unknown Named Agents of Federal Bureau
of Narcotics, 403 US 388 (1971)

COMES NOW, Plaintiff Aaron Romero, by and through his Counsel of Record, Erlinda
O. J ohnson, Esq., and hereby brings this action on his own behalf (in his individual and personal
capacity) and alleges as his Complaint as follows
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:

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In accordance with Fed. R. Civ. P. 10(a), the Defendants (the United States under the FTCA and the Federal
Government Employees by name under the Bivens claim in their individual capacities) are listed on page 1 of this
Complaint. Furthermore, the allegations set forth herein demonstrate the Defendants acted wrongfully and the
prayer for relief described herein seeks monetary damages.

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INTRODUCTION
1. This is an action arising out of the Tortious Acts of Negligence and Intentional Infliction
of Emotional Distress under the Federal Tort Claims Act (FTCA) as well as a separate action
arising out of the Constitutional Torts under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 US 388 (1971)(claims under the First Amendment and Due Process
Clause of Fifth Amendment to the United States Constitution) committed against Plaintiff Aaron
Romero by the United States Government and the Defendants (in part, in the form of a Civil
Conspiracy under Bivens) from November 2011 through August 2012 in Las Vegas, New
Mexico.
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2. Upon information and belief, from on or about October 2011 through August 2012, the
United States and the Defendants created, organized, implemented, supervised, and participated
in Operation Smack City an Organized Crime Drug Enforcement Task Force (OCDETF) and
High Intensity Drug Trafficking Area (HIDTA) investigation in Las Vegas, New Mexico.
3. Upon information and belief, during the operation, the United States and the Defendants
formed an agreement to deliberately restart and intentionally utilize Plaintiff Aaron Romeros
(and others) crippling addiction to Crack Cocaine, in order to further the investigative goals,

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It is important to note the relationship between the Federal Tort Claims Act (FTCA) and Bivens actions in which a
Bivens action was created judicially to impose liability against Federal officials in their individual capacities (rather
than official capacities) and the FTCA was created statutorily to impose liability directly upon the United States, and
the Supreme Court determined that Bivens Actions and FTCA Claims (arising from the same wrongful acts or
omissions) may exist simultaneously as parallel, complementary Causes of Action against individual Defendants
under a Bivens suit and against the United States under a FTCA action, see U.S. v Smith, 499 U.S. 160, 111 S. Ct.
1180, 113 L. Ed. 2d 134 (1991), Carlson v. Green, 446 U.S. 14, 100 S. Ct. 1468, 64 L. Ed. 2d 15 (1980). Also see
28 U.S.C. 2679(b)(2)(A). However, a Bivens action is distinct generally from an FTCA claim based on, but not
limited to, (1) a Bivens action serves the purpose as an effective deterrent in the sense Federal officials are liable as
an individual, (2) Punitive Damages are available under a Bivens action but Punitive Damages are not available
under an FTCA claim, (3) Plaintiffs in Bivens actions are entitled to a trial by J ury, and (4) Bivens actions are
controlled by Federal Law and FTCA Claims are predominantly governed by State law.
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accumulate arrest related statistics in Operation Smack City and to stack drug related charges
against Plaintiff Aaron Romero.
4. The United States Government (specifically, the Drug Enforcement Administration
(DEA)) and the Defendants (Employees of the United States as Agents of the Drug Enforcement
Administration acting under the color of Federal Law) conducted an investigation of drug
trafficking targets in Las Vegas, New Mexico from November 2011 through August 2012.
5. However, the DEA investigation was saturated with: 1) Outrageous Government
Conduct, 2) Negligence by the United States, 3) Recklessness with Deliberate Indifference by
Defendants, 4) Misrepresentations, False Statements, Material Omissions, Tortious Acts by the
United States, 5) Violations of DEA Policy by the United States and the Defendants, 6) Breaches
of the Attorney Generals Guidelines Regarding Use of Confidential Informants by the United
States and the Defendants, and 7) Constitutional Torts/Violations by the Defendants.
6. Evidence of the foregoing conduct includes demonstrable Misrepresentations and False
Statements depicted in the DEA Reports of Investigation by the United States and the
Defendants to conceal the actual amounts of Crack Cocaine obtained during the undercover
transactions with Plaintiff Aaron Romero and other individuals (Theresa Saiz).
7. Further evidence of the misconduct and violation consists of the defendant United States
use of Omissions regarding the distribution of Crack Cocaine to Plaintiff Aaron Romero and
another individual (Theresa Saiz)(for consumption).
8. Defendants conduct was in clear breach of DEA Policy, specifically DEA Manual,
Standards of Conduct, Section 2735.19 Penalty Guidelines, 22: Falsification, misstatement,
exaggeration, or concealment of material fact in connection with any records, investigation, or
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other proper proceedings. Importantly, Theresa Saiz is not included as a Plaintiff or Party in
this Complaint.
9. Furthermore, the United States established and continued a pattern of Negligence.
10. The Defendants established and continued a pattern of Recklessness with Deliberate
Indifference that included the failure to follow DEA Policy regarding Informant Handling,
specifically DEA Manual, Chapter 66, 6612 Confidential Sources: 6612.31 General Policies,
Section G Where an informant is to participate in an undercover purchase in which he may
come into contact with either official funds, controlled drugs, or anything else of potential
evidentiary value, he will be searched both before and after the undercover encounter.
11. Indeed, during this specific investigation, the United States and the Defendants failed
to search the DEA Informants/ Confidential Sources during each undercover operation (both
before and after the undercover encounter) during which the DEA Informants/Confidential
Sources were utilized to obtain evidence on more than 7 separate occasions through Plaintiff
Aaron Romero and Patrick Vigil in clear violation of DEA Policy regarding Informant
Handling.
12. Most notably, the investigation resulted in the reckless and intentional distribution of
Crack Cocaine by the United States Government and the Defendants to Plaintiff Aaron Romero
and his girlfriend (Theresa Saiz) for their consumption, in order to cause Emotional Distress to
Plaintiff Aaron Romero and to restart the addiction to Crack Cocaine by Plaintiff Aaron Romero.
13. The defendants acts effectively caused physical and emotional harm to Plaintiff Aaron
Romero to which he otherwise would not have been exposed.
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Notably, the provision of controlled substances to individuals by DEA is a clear breach of DEA Policy,
specifically, DEA Manual, Appendix B, Section III Undercover Operations, subsection D (DEA may furnish an
item necessary to the commission of an offense other than a controlled substance) and subsection E and the
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14. Moreover, as set forth herein, the United States Government and the Defendants
subsequently utilized Plaintiff Aaron Romeros newly rehabilitated addiction to Crack Cocaine
to further the investigation of drug traffickers in Las Vegas, New Mexico and to stack drug
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
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15. As a result of the Outrageous Government Conduct, Recklessness with Deliberate
Indifference, Misrepresentations, False Statements, and Material Omissions, Tortious Acts by the
United States, and Constitutional Torts/Violations by the Defendants, the following
Cases/Indictments were dismissed by the United States Attorneys Office for the District of New
Mexico (EXHIBIT 2 Dismissal Orders):
US vs. Aaron Romero CR-12-1909
US vs. George Barela CR-12-1909
US vs. Ruby Aragon CR-12-1909
US vs. Gilbert Aragon CR-12-1909
US vs. Patrick Vigil CR-12-1912

16. Despite the foreseeable certainty of emotional and physical harm and in complete
disregard of the Compensatory Damages and Non-Economic Damages that include severe
mental health consequences (Mental Anguish, Pain, and Suffering) and physical condition
effects (Physical Injury, Pain, and Suffering), as well as damage to familial and intimate
relationships (Loss of Consortium, Loss of Society, and Companionship) and the aggravated
addiction consequences (Mental Anguish, Physical Injury, and Pain and Suffering) resulting
from distribution of a controlled substance to individuals suffering from (specifically, Plaintiff

controlling Attorney Generals Guidelines Regarding the Use of Confidential Informants, specifically Section I.
General Provisions: (E) Duty of Candor and Section III. Responsibilities Regarding Registered Confidential
Informants: (C) Authorization of Otherwise Illegal Activity, (1) General Provisions: (a) and (b)(ii), (2)
Authorization: (a)(i)(ii), and (4) Instructions: (a)(i) and (a)(iii)(B) see Footnote 40 below for a detailed illustration
of the violations of the Attorney Generals Guidelines by the United States relative to the claims set forth herein.
4
UnitedStatesvs.AaronRomeroetal.,DistrictofNewMexicoCR121909.
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Aaron Romero, Theresa Saiz, and Patrick Vigil individuals known by the United States
Government and the Defendants to suffer from severe addiction to Crack Cocaine), the United
States Government and the Defendants affirmatively and intentionally established a pattern of
distribution of Crack Cocaine to Plaintiff in order to utilize his addiction to Crack Cocaine to
further the investigation and to stack drug related charges against him.
17. The defendants acts during the course of the investigation from November 2011
through August 2012 are in clear violation of the Free Association Clause of the First
Amendment (Constitutional protection of citizens liberty interest in familial companionship
from violation of Federal Government actions) and Due Process Clause (Substantive Due
Process Rights) under the Fifth Amendment [Constitutional protection of citizens liberty
interest in bodily integrity and freedom from deprivation of liberty interests without due
processes of law (or corruption of the processes of law that shocks the conscience by the United
States Government)] to the Constitution.
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18. Furthermore, as set forth herein, the United States Government caused the Emotional
Distress to Plaintiff Aaron Romero through commission of the Intentional Tort of Intentional
Infliction of Emotional Distress (a Tortious Act recognized as an Intentional Tort and as a
Private Person Liability in the State of New Mexico) and the Tortious Act of Negligence (a
Tortious Act recognized as a Private Person Liability in the State of New Mexico) against

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Beyond the boundaries of a custodial environment, Substantive Due Process Rights (rather than Procedural Rights)
form the fundamental liberty interests in the United States, as generally but precisely described in Board of Regents
v. Roth, 408 U.S. 564, 577 (1972): Without a doubt it denotes not merely freedom from bodily restraint but also
the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful
knowledge, to marry, to establish a home and bring up children, to worship God according to the dictates of his own
conscience, and generally to those privileges long recognized as essential to the orderly pursuit of happiness by
free men.

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Plaintiff Aaron Romero through intentional distribution of Crack Cocaine to Plaintiff Aaron
Romero on at least six (6) occasions during the course of the investigation.
19. As a result, the adverse addictive effects of the distribution of Crack Cocaine to
Plaintiff Aaron Romero continued after the conclusion of the pattern of distribution of Crack
Cocaine to Plaintiff was terminated at the end of the investigation by the United States
Government and the Defendants at the beginning of May 2012.
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20. Most notably, the Tortious Acts and Constitutional Torts of the deliberate distribution
of Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the United States Government
and the Defendants reignited Plaintiff Aaron Romeros addiction to Crack Cocaine and
simultaneously provided a reliable path or system (not previously available or within the
capacity of Plaintiff Aaron Romero to establish) for him to obtain Crack Cocaine for
consumption.
21. This in turn, severely deepened Plaintiff Aaron Romeros addiction to Crack Cocaine.
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22. Consequently, Plaintiff Aaron Romero continued unwittingly to procure controlled
substances (Crack Cocaine and Heroin) for the United States Government and the Defendants in
order to obtain Crack Cocaine for Plaintiffs consumption, rather than monetary benefit.
23. Importantly, as noted in the Background section below, Plaintiff Aaron Romero had
been in the recovery process from severe addiction to Crack Cocaine for nearly 4 months when
the United States Government and the Defendants intentionally and recklessly caused Plaintiffs
relapse.

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Plaintiff Aaron Romero was charged in indictment CR-12-1909 on 08-07-12 and later arrested and incarcerated
approximately 5 months after the conclusion of the distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption by
Plaintiff Aaron Romero) by the United States Government and the Defendants.
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It is important to note that DEA Informant (CS Cesario) continued to utilize Plaintiff Aaron Romero as a broker to
obtain Crack Cocaine from others in Las Vegas, New Mexico on a regular and consistent basis beyond the 6
documented undercover transactions, and DEA Informant (CS Cesario) would provide Crack Cocaine to Plaintiff
Aaron Romero for consumption as a broker payment for the procurement of Crack Cocaine.
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24. The United States and defendants restarted Plaintiffs addiction to Crack Cocaine,
through deliberate assignment of a DEA Informant (referred to as CS Cesario herein) to
accomplish the mission to renew a former Crack Cocaine brokerage and consumption
relationship between CS Cesario and Plaintiff Aaron Romero.
25. The United States Government provided the reliable system, to include the
dependable stream of funds, to acquire Crack Cocaine through Plaintiff Aaron Romero.
26. What followed was the United States Government and the Defendants intentional
Infliction of Plaintiffs relapse of addiction to Crack Cocaine.
27. The United States Government and the Defendants would distribute Crack Cocaine to
Plaintiff Aaron Romero for consumption as brokerage payments for the procurement of Crack
Cocaine from other drug trafficking targets in Las Vegas, New Mexico.
28. The foregoing was done regardless of the foreseeable Compensatory Damages and
Non-Economic Damages that include severe mental health consequences (Mental Anguish,
Pain, and Suffering) and physical condition effects (Physical Injury, Pain, and Suffering)
endured by Plaintiff Aaron Romero - as well as the predictable damage to newly rehabilitated
familial relationships (Loss of Consortium, Loss of Society and Companionship) and the
aggravated addiction consequences (Mental Anguish, Physical Injury, Pain and Suffering)
experienced by Plaintiff Aaron Romero.
PARTIES

29. Plaintiff Aaron Romero is a Citizen of the United States and a Resident of the State of
New Mexico.
30. Plaintiff Aaron Romero brings Claims against the United States for Personal Injury
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under the FTCA (specifically, the Tortious Acts of Negligence and Intentional Infliction of
Emotional Distress).
31. Separately, Plaintiff Aaron Romero also brings separate Claims against the Defendants
(in their individual capacities) for Constitutional Torts under Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 US 388 (1971) specifically, violation of the
Substantive Due Process Clause of the Fifth Amendment (Constitutional protection of citizens
liberty interest in bodily integrity and freedom from deprivation of liberty interests without due
processes of law (or corruption of the processes of law that shocks the conscience) by the United
States Government) and the Free Association Clause of the First Amendment (Constitutional
protection of citizens liberty interest in familial companionship from violation of Federal
Government actions).
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32. The United States is the sole and proper Defendant relative to the Claims for Personal
Injury set forth herein pursuant to the FTCA, 28 U.S.C. 1346(b), 2674.
33. J ohn R. Castleberry, Patricia G. Whelan aka Patricia Yazzie aka Trish Yazzie (Patricia
G. Whelan hereinafter), Matthew B. Mayfield, Raymond Keith Brown, and J oseph M. Arabit
(the Defendants collectively) are the proper Defendants (all of whom acted under the color of
Federal Law during commission of the Constitutional Torts set forth herein) in their individual
capacity (rather than their official capacity) pursuant to Bivens v. Six Unknown Named Agents
of Federal Bureau of Narcotics, 403 US 388 (1971); see also FDIC v. Meyer, 510 U.S. 471, 485

8
Blacks Law Dictionary, 9
th
Edition defines Oppression as The act or an instance of unjustly exercising
authority or power and An offense consisting in the abuse of discretionary authority by a public officer who has an
improper motive, as a result of which a person is injured. As it relates to Plaintiff Aaron Romero, the deliberate
relapse and use of the addiction to Crack Cocaine, coupled with the stacking of drug-related charges against Plaintiff
Aaron Romero, by the Defendants would be considered oppression or abuse of authority actions by the
Defendants that corrupted the processes of law and shocked the conscience - clear violations of the Right to
Substantive Due Process under the Fifth Amendment. See Morales v. Ramirez, 906 F.2d 784 (1
st
Cir. 1990).
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(1994) (internal citation omitted) (It must be remembered that the purpose of Bivens is to deter
the officer. If we were to imply a damages action directly against federal agencies there would
be no reason for aggrieved parties to bring damages against individual officers) and Laury v.
Greenfield, 87 F. Supp. 2d 1210 (D. Kan. 2000) (Officials are liable in their individual
capacities).
34. At all times material hereto, Defendants J ohn R. Castleberry, Patricia G. Whelan,
Matthew B. Mayfield, and Raymond Keith Brown were (and upon information and belief
continue to be) employed by the United States Government, U.S. Department of J ustice, Drug
Enforcement Administration as Federal Law Enforcement Officers in Albuquerque, New Mexico
(DEA Albuquerque District Office).
35. During November 2011 through August 2012 ,the time frame of the commission of the
Tortious Acts and Constitutional Torts/Violations against Plaintiff Aaron Romero, it is believed
(upon information and belief) that each individual Defendant is a Citizen of the United States
and a Resident of the State of New Mexico.
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36. Notably, the Gross Misconduct and affirmative actions of the Defendants were willful,
wanton, and undertaken with reckless and conscious disregard of the substantial foreseeable
likelihood of the risk of physical and emotional harm suffered by Plaintiff Aaron Romero to
include harm to his familial relationships.
37. As a result, Plaintiff Aaron Romero is entitled to an award of Punitive Damages under
New Mexico State Law and Federal Law from the Defendants (in their individual capacity) in
the aggregate amount of $5,000,000.00 ($5 million dollars) or an amount attributable to each
individual Defendant to be determined at trial.

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Presently, Defendant Raymond Keith Brown is the Special Agent in Charge of the DEA Field Division Office in
New Orleans, Louisiana.
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38. At all times material hereto, specifically during the time frame (November 2011
through May 2012) of the commission of the Tortious Acts and Constitutional Torts/Violations
against Plaintiff Aaron Romero, Defendant J oseph M. Arabit was (and upon information and
belief continues to be) employed by the United States Government, U.S. Department of J ustice,
Drug Enforcement Administration as a Federal Law Enforcement Officer - specifically as
Special Agent in Charge of the DEA El Paso Field Division with management and control duties
of the DEA Albuquerque District Office.
39. Defendant J oseph Arabit is also believed (upon information and belief) to be a Citizen
of the United States and a Resident of the State of Texas.
40. As described immediately above, Defendant J oseph M. Arabit (in his individual
capacity) is liable to Plaintiff Aaron Romero for Punitive Damages under New Mexico State
Law and Federal Law in the aggregate amount of $5,000,000.00 ($5 million dollars) or an
amount attributable to each individual Defendant to be determined at trial.
41. At all times material hereto (upon information and belief), Defendants J ohn R.
Castleberry, Patricia G. Whelan, Matthew B. Mayfield, Raymond Keith Brown, and J oseph M.
Arabit were acting as Employees of the United States of America (Defendant).
42. Defendants J ohn R. Castleberry, Patricia G. Whelan aka Patricia Yazzie aka Trish
Yazzie, Matthew B. Mayfield, Raymond Keith Brown, and J oseph M. Arabit were also acting
in an individual capacity in the course and scope of employment, and under the color of Federal
law.
43. At all times material hereto (upon information and belief), the Defendants, each of
which, were the agents, servants, joint venturers, partners, employees, employers, or
representatives of each other and, participants in the acts and omissions alleged herein, were
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acting within the scope of their authority and with the permission, agreement, and consent of the
each other (the Defendants).
44. Upon information and belief, other Employees of the United States Government or
State or Local Law Enforcement Personnel assigned as Deputized Task Force Officers (TFO) to
the United States Government may be Liable to Plaintiff Aaron Romero (as set forth herein).
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45. Furthermore, upon discovery of the involvement of other Defendants, Plaintiff Aaron
Romero will ask leave of the Court to amend this Complaint to name the individual as a
Defendant and to specify the relationship of the Defendant to the events at issue in this
Complaint in accordance with the information and facts set forth herein at this time.
46. The Drug Enforcement Administration Agents (the Defendants) relevant to this
Complaint are:
a. DEA Agent John Robert Castleberry As demonstrated in the Factual Basis Section
and Liability under Bivens Section below, Defendant J ohn R. Castleberry (as primary
Case Agent, along with Defendant Patricia G. Whelan, in Operation Smack City), in
conjunction and agreement with the other Defendants, was involved in the Intentional
and Reckless (with Deliberate Indifference) relapse of Plaintiff Aaron Romeros
addiction to Crack Cocaine, for the singular purpose of causing Emotional Distress to
Plaintiff Aaron Romero.
b. Defendants utilized the Emotional Distress and the newly relapsed companion addiction
to Crack Cocaine by Plaintiff Aaron Romero to target drug trafficking suspects in Las
Vegas, New Mexico through undercover operations in which Plaintiff Aaron Romero was
exploited (unwittingly) as a broker to target drug trafficking suspects.
c. In return, DEA informants (as authorized by Defendant J ohn Castleberry and the other
Defendants) provided to Plaintiff Aaron Romero broker payments in the form of Crack
Cocaine (for consumption by Plaintiff Aaron Romero), as compensation for an
introduction to the other drug trafficking targets.

10
See Romero v. Peterson, 930 F.2d. 1502 (10
th
Cir. 1991) regarding liability of federally deputized State or Local
officials under Bivens. Notably, in Romero v. Peterson, the Tenth Circuit Court of Appeals established several
factors that may be considered to determine liability of State or Local actors that are deputized as Federal officials,
specifically, (1) the source of funding of the local officials, (2) the extent of any Federal Regulation of their actions,
(3) the interdependence of the local officials and the Federal Government, (4) the responsibility for the local
officials supervision, and (5) whether the cross-deputization extended to the locale where the alleged
unconstitutional incident took place.
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d. Simultaneously, Defendant J ohn Castleberry Intentionally, Recklessly, and with


Deliberate Indifference authorized DEA informants continued distribution of Crack
Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff Aaron Romero) in order
to stack drug related charges against Plaintiff Aaron Romero (EXHIBIT 1).
e. Additionally, Defendant J ohn R. Castleberry also distributed Crack Cocaine to Theresa
Saiz (for consumption by Theresa Saiz) on two separate occasions during undercover
transactions.

f. DEA Agent Patricia G. Whelan/ aka Patricia Yazzie/ aka Trish Yazzie As
demonstrated in the Factual Background Section and Liability under Bivens Section
below, Defendant Patricia G. Whelan (as primary Case Agent, along with Defendant
J ohn R. Castleberry, in Operation Smack City), in conjunction and agreement with the
other Defendants, was involved in the Intentional and Reckless (with Deliberate
Indifference) relapse of Plaintiffs addiction to Crack Cocaine for the singular purpose of
causing his Emotional Distress.
g. In order to target drug trafficking suspects in Las Vegas, New Mexico through
undercover operations, Plaintiff Aaron Romero was exploited (unwittingly) as a broker.
h. In return, DEA informants (as authorized by Defendant Patricia G. Whelan and the other
Defendants) provided to Plaintiff Aaron Romero broker payments in the form of Crack
Cocaine (for consumption by Plaintiff Aaron Romero),as compensation for introductions
to the other drug trafficking targets.
i. Simultaneously, Defendant Patricia G. Whelan, in conjunction and agreement with the
other Defendants, Intentionally, Recklessly, and with Deliberate Indifference authorized
DEA informants continued distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption by Plaintiff Aaron Romero), in order to stack drug related charges against
Plaintiff Aaron Romero (EXHIBIT 1).
j. Additionally, Defendant Patricia G. Whelan also authorized DEA informants
distribution of Crack Cocaine to Patrick Vigil (for consumption by Patrick Vigil), on one
occasion during an undercover meeting between Defendant Patricia G. Whelan, the DEA
Informant, and Patrick Vigil.

k. DEA Group Supervisor Matthew Bruce Mayfield As demonstrated in the Factual
Background Section and Liability under Bivens Section below, Defendant Matthew B.
Mayfield (as Group Supervisor and manager of the investigation, Operation Smack City)
was involved in Management of Defendant J ohn R. Castleberry and Defendant Patricia
G. Whelan to include Review and Approval of DEA Reports and Forms regarding
distribution of Crack Cocaine to Plaintiff Aaron Romero.
l. Defendant Mayfield was also involved in the Management of Debriefings and
Supervision of the subject DEA Informants from November 2011 through August 2012
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or later, and First Line Supervisory Approval of Operation Plans regarding Plaintiff
Aaron Romero and others.
m. Overall, 1) Defendant Matthew B. Mayfield, in conjunction and agreement with the other
Defendants, was involved in the Intentional and Reckless (with Deliberate Indifference)
relapse of Plaintiffs addiction to Crack cocaine, for the singular purpose of causing
Emotional Distress to Plaintiff Aaron Romero; 2) Defendant Matthew B. Mayfield, in
conjunction and agreement with the other Defendants, deliberately utilized the Emotional
Distress and the newly relapsed companion addiction to Crack Cocaine by Plaintiff
Aaron Romero to target drug trafficking suspects in Las Vegas, New Mexico through
undercover operations in which Plaintiff Aaron Romero was utilized (unwittingly) as a
broker to target drug trafficking suspects.
n. In return, DEA informants (as authorized by Defendant Matthew B. Mayfield and the
other Defendants) provided Plaintiff Aaron Romero broker payments in the form of
Crack Cocaine (for consumption by Plaintiff Aaron Romero) as compensation for
introduction to the other drug trafficking targets; and 3) Simultaneously, Defendant
Matthew Mayfield, in conjunction and agreement with the other Defendants,
Intentionally, Recklessly, and with Deliberate Indifference authorized DEA informants
continued distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption by
Plaintiff Aaron Romero), in order to stack drug related charges against Plaintiff Aaron
Romero (EXHIBIT 1).
o. Notably, the personal involvement of Defendant Matthew B. Mayfield is demonstrable
and supported by the failure of Defendant Matthew B. Mayfield to set a Prohibition (in
accordance with DEA Policy, the Attorney Generals Guidelines Regarding Use of
Confidential Informants, fundamental law enforcement principles, and clearly established
law) against distribution of controlled substances to Plaintiff Aaron Romero, Theresa
Saiz, and Patrick Vigil (for consumption).
p. The foregoing is based on review and approval of DEA Reports regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero, First Line Supervisory Approval of Operation
Plans regarding Plaintiff Aaron Romero and others, and attendance at one or more post
undercover transaction debriefings of a DEA Informant regarding distribution of Crack
Cocaine to Plaintiff Aaron Romero.

q. DEA Assistant Special Agent in Charge (ASAC) Raymond Keith Brown As
demonstrated in the Factual Background Section and Liability under Bivens Section
below, Defendant Raymond Keith Brown (as the 2
nd
Line Manager of the investigation
regarding Plaintiff Aaron Romero and others in Operation Smack City) was involved in
Management of Defendant Matthew B. Mayfield, Defendant J ohn R. Castleberry, and
Defendant Patricia G. Whelan, to include Case File Review of DEA Reports and Forms
regarding distribution of Crack Cocaine to Plaintiff Aaron Romero, DEA Informant File
Reviews that included DEA Reports of Investigation relative to distribution of Crack
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Cocaine to Plaintiff Aaron Romero, Management of Debriefings and Supervision of the


subject DEA Informants from November 2011 through August 2012 or later.

r. Defendant Brown was also responsible for providing second Line Supervisory Approval
of Operation Plans regarding Plaintiff Aaron Romero and others.
s. Overall, Defendant Raymond Keith Brown, in conjunction and agreement with the
other Defendants, was involved in the Intentional and Reckless (with Deliberate
Indifference) relapse of the addiction to Crack Cocaine by Plaintiff Aaron Romero for the
singular purpose of causing Emotional Distress to Plaintiff Aaron Romero.
t. Additionally, Defendant Raymond Keith Brown, in conjunction and agreement with
the other Defendants, deliberately utilized Plaintiffs Emotional Distress and newly
relapsed companion addiction to Crack Cocaine, to target drug trafficking suspects in Las
Vegas, New Mexico through undercover operations in which Plaintiff Aaron Romero was
utilized (unwittingly) as a broker to target drug trafficking suspects.
u. In return for introduction to other drug trafficking targets, DEA informants (as authorized
by Defendant Raymond Keith Brown and the other Defendants) provided Plaintiff
Aaron Romero with broker payments in the form of Crack Cocaine (for consumption by
Plaintiff Aaron Romero).
v. In conjunction and agreement with the other Defendants, Defendant Raymond Keith
Brown, Intentionally, Recklessly, and with Deliberate Indifference authorized DEA
informants continued distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption by Plaintiff Aaron Romero), in order to stack drug related charges against
Plaintiff Aaron Romero (EXHIBIT 1).
w. Notably, the personal involvement of Defendant Raymond Keith Brown is
demonstrable and supported by his failure to set a Prohibition (in accordance with DEA
Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants,
fundamental law enforcement principles, and clearly established law) against distribution
of controlled substances to Plaintiff Aaron Romero, Theresa Saiz, and Patrick Vigil,
based on review of DEA Reports regarding distribution of Crack Cocaine to Plaintiff
Aaron Romero contained in both the investigative Case File and the DEA Informant files
regarding Plaintiff Aaron Romero and 2nd Line Supervisory Approval of Operational
Plans regarding Plaintiff Aaron Romero and others.

x. DEA Special Agent in Charge (SAC) Joseph M. Arabit As demonstrated in the
Factual Backgraound Section and Liability under Bivens Section below, Defendant
J oseph M. Arabit (as the overall Manager of the investigation regarding Plaintiff Aaron
Romero and others in Operation Smack City) was involved in Management and
Supervision of Defendant Raymond Keith Brown, Defendant Matthew B. Mayfield,
Defendant J ohn R. Castleberry, and Defendant Patricia G. Whelan - to include Annual
and Quarterly Review of investigative case files containing DEA Reports and Forms
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 15 of 175
16

regarding distribution of Crack Cocaine to Plaintiff Aaron Romero and Annual and
Quarterly Review of DEA Informant Files that included DEA Reports of Investigation
relative to distribution of Crack Cocaine to Plaintiff Aaron Romero from November 2011
through August 2012 or later.
y. Overall, 1) Defendant J oseph M. Arabit, in conjunction and agreement with the other
Defendants, was involved in the Intentional and Reckless (with Deliberate Indifference)
relapse of Plaintiffs addiction to Crack Cocaine, for the singular purpose of causing
Emotional Distress to Plaintiff Aaron Romero; 2) Defendant J oseph M. Arabit, in
conjunction and agreement with the other Defendants, deliberately utilized the Emotional
Distress and Plaintiffs newly relapsed companion addiction to Crack Cocaine to target
drug trafficking suspects in Las Vegas, New Mexico through undercover operations in
which Plaintiff Aaron Romero was utilized (unwittingly) as a broker to target drug
trafficking suspects.
z. In return, DEA informants (as authorized by Defendant J oseph M. Arabit and the other
Defendants) provided Plaintiff Aaron Romero broker payments in the form of Crack
Cocaine (for consumption by Plaintiff Aaron Romero) as compensation for introduction
to other drug trafficking targets; and 3).
aa. Simultaneously, Defendant J oseph M. Arabit, in conjunction and agreement with the
other Defendants, Intentionally, Recklessly, and with Deliberate Indifference authorized
DEA informants continued distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption by Plaintiff Aaron Romero), in order to stack drug related charges against
Plaintiff Aaron Romero (EXHIBIT 1).
bb. Notably, the personal involvement of Defendant J oseph M. Arabit is demonstrable and
supported by the failure of Defendant J oseph M. Arabit to set a Prohibition (in
accordance with DEA Policy, the Attorney Generals Guidelines Regarding Use of
Confidential Informants, fundamental law enforcement principles, and clearly established
law) against distribution of controlled substances to Plaintiff Aaron Romero, Theresa
Saiz, and Patrick Vigil based on review of DEA Reports regarding distribution of Crack
Cocaine to Plaintiff Aaron Romero contained in both the investigative Case File and the
DEA Informant files regarding Plaintiff Aaron Romero.

47. The Drug Enforcement Administration Informants/Confidential Sources relevant to this
Complaint are:
a. CS Jason (Last Name Unknown to Plaintiff Aaron Romero). Motivation:
Confidential Source based on Monetary Compensation for provision of information and
service. CS J ason is depicted as CS-1 in related Wiretap Applications/Affidavits. CS
J ason is depicted as CS-2 in the DEA Reports of Investigation regarding other
defendants. CS J ason is depicted as CS-1 or CS in the DEA Reports of Investigation
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 16 of 175
17

regarding Plaintiff Aaron Romero. CS J ason is also referred to as Pat, J ason, and/or
Diablo in the relative DEA Audio Recording Exhibits. As demonstrated below, CS
J ason distributed Crack Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff
Aaron Romero) as payment for procurement of Crack Cocaine during undercover
operations on two occasions as authorized by the Defendants.

b. CS Cesario (Last Name Unknown to Plaintiff Aaron Romero). Motivation:
Confidential Source based on Monetary Compensation for provision of information and
service. CS Cesario is depicted as CS-2 in related Wiretap Applications/Affidavits. CS
Cesario is depicted as CS-2 or CS in the DEA Reports of Investigation regarding Plaintiff
Aaron Romero, Patrick Vigil, and others. CS Cesario is also referred to as Cesario in
the relative DEA Audio Recording Exhibits. As demonstrated below, CS Cesario
distributed Crack Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff Aaron
Romero) and Patrick Vigil (for consumption by Patrick Vigil. Notably, Patrick Vigil is
not a named plaintiff in this complaint) as payment for procurement of Crack Cocaine
during undercover operations on numerous occasions - as authorized by the Defendants.

JURISDICTION, VENUE, AND ADMINISTRATIVE REMEDIES
48. This Complaint and J urisdiction arise, in the first part, under the provisions of the
Federal Tort Claims Act (FTCA), 28 U.S.C. 1346(b), 28 U.S.C. 2671-2680 et.seq., 28
U.S.C. 1402(b), and 28 U.S.C. 1331 with pendent jurisdiction over any State law claims.
49. This Complaint and J urisdiction also arise, in the second part, from a civil action for
the deprivation of rights secured by the United States Constitution under Bivens v. Six Unknown
Named Agents of Federal Narcotics Bureau, 403 US 388 (1971) (a private cause of action for
violation of rights under the Constitution acknowledged ) and 28 U.S.C. 1331. Accordingly,
the Court has J urisdiction regarding this matter pursuant to 28 U.S.C. 1331.
50. Moreover, the Court has supplemental J urisdiction over any Claims arising under the
Law of the State of New Mexico - pursuant to 28 U.S.C. 1367.
51. The Tortious Acts and Constitutional Torts/Violations committed against Plaintiff
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 17 of 175
18

Aaron Romero by the United States (Defendant) and the Defendants occurred in the State of
New Mexico and accordingly, the Causes of Action relative to Plaintiff Aaron Romero are
established properly in the State of New Mexico and the District of New Mexico through the
factual and non-conclusory basis (as set forth herein).
52. The location and dates of the Tortious Acts and Constitutional Torts/Violations
described herein are as follows:
(1) November 30, 2011 Las Vegas, New Mexico
(2) December 8, 2011 Las Vegas, New Mexico
(3) December 29, 2011 Las Vegas, New Mexico
(4) J anuary 6, 2012 Las Vegas, New Mexico
(5) J anuary 12, 2012 Las Vegas, New Mexico
(6) May 9, 2012 Las Vegas, New Mexico

53. On November 26, 2013, Plaintiff Aaron Romero filed an Administrative Claim for
Relief for Personal Injury through submission of Standard Form-95 to both the U.S. Department
of J ustice and Drug Enforcement Administration for proper and timely Presentment to the United
States pursuant to the FTCA, 28 U.S.C. 2675(a).
11

54. Furthermore, pursuant to 28 U.S.C. 2401(b), the expiration date for the United
States Government regarding response to the FTCA Administrative Claim was May 31, 2014
(FTCA 6-month Administrative Period concluded and Federal J udicial J urisdiction is
recognized) and pursuant to 28 U.S.C. 2675(a), filing of the J udicial Complaint as a Claim for
Relief under the FTCA is permitted after May 31, 2014 and prior to December 3, 2014.
55. Presently, Plaintiff Aaron Romero has exhausted the administrative remedies relative

11
The final FTCA Date of Accrual of the Presentment of the Administrative Claim for Personal Injury to the United
States (specifically Drug Enforcement Administration) was Monday, December 2, 2013 - pursuant to Federal Rules
of Civil Procedure 6(a). Consequently, the Presentment of the Administrative Claim for Personal Injury to the
United States by Plaintiff Aaron Romero was both timely and proper.
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 18 of 175
19

to the Claim for Relief for Personal Injury against the United States Government - as required by
both the FTCA, 28 U.S.C. 2675(a) which states, the failure of an agency to make final
disposition of a claim within six months after it is filed shall, at the option of the claimant any
time thereafter, be deemed a final denial of the claim for purposes of this section and the
Supreme Court that clarified 2675(a) as a clear statutory command. See McNeil v. United
States, 508 U.S. 106, 113, 113 S. Ct. 1980, 124 L. Ed. 2d 21 (1993).
56. Accordingly, Plaintiff Aaron Romero has deemed the administrative claim against
the United States to be a final denial and pursuant to 2675(a), Plaintiff Aaron Romero files
this Complaint for Relief for monetary damages with the Court properly and timely under the
FTCA. Therefore, J urisdiction and Venue are proper in the District of New Mexico regarding
the Claims for Personal Injury pursuant to the FTCA, 28 U.S.C. 1402(b).
57. In the State of New Mexico, the Statute of Limitations for Personal Injury claims is
Three (3) years. See N.M. Stat. Ann. 37-1-8.
58. In Bivens Actions and 42 U.S.C. 1983 Claims, the Statute of Limitations is drawn
from the Personal Injury Statute in which the Federal District Court sits.
12
Wilson v. Garcia,
471 U.S. 261, 269, 105 S. Ct. 1938, 85 L.Ed.2d 254 (1985) (overruled on other grounds, see
Jones v. R.R. Donnelly & Sons, 541 U.S. 369, 124 S. Ct. 1836 (2004)); see also, Wallace v. Kato,
549 U.S. 384, 387 (2007); Van Tu v. Koster, 364 F.3d 1196, 1199 (10
th
Cir. 2004); and Hunt v.
Bennett, 17 F.3d 1263, 1265 (10
th
Cir. 1994). However, the Accrual Date is determined by
Federal Law. See Mondragon v. Thompson, 519 F.3d 1078, 1082 (10
th
Cir. 2008).

12
The Statute of Limitations period for aBivens Action is the same period which is appropriate for a Claim under 42
U.S.C. 1983. See Van Strum v. Lawn, 929 F.2d 1384 (9
th
Cir. 1991), opinion amended and superseded, 940 F.2d
406 (9
th
Cir. 1991).

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20

59. Under Federal Law, A Civil rights action accrues when facts that would support a
cause of action are or should be apparent. See Fratus v. Deland, 49 F.3d 673, 675 (10
th
Cir.
1995).
60. Finally, claims arising out of police actions toward a criminal suspect, such as
arrest, interrogation, or search and seizure, are presumed to have accrued when the actions
actually occurred. See Johnson v. Johnson Cnty. Commn Bd., 925 F.2d 1299, 1301 (10th Cir.
1991).
13

61. It is important to note, the date of the first Constitutional Tort/Violation (and
Tortious Act) committed against Plaintiff Aaron Romero by the Defendants (as set forth herein)
occurred on November 30, 2011 approximately 2 years and 8 months prior to the date of filing
of this Complaint and within the State of New Mexico Statute of Limitations for Personal
Injuries of three (3) years.
62. Therefore, J urisdiction is proper in the District of New Mexico regarding the Claims
for Relief (as set forth herein) based on Constitutional Torts/Violations (which occurred in the
State of New Mexico) under Bivens v. Six Unknown Named Agents of Federal Narcotics
Bureau, 403 US 388 (1971).
63. Venue is proper pursuant to 28 U.S.C. 1391(b). See Stafford v. Briggs, 444 U.S. 527,
544-45 (1980) and Valdes v. Gordon, 949 F. Supp. 21 (D.D.C 1996), order affd, 1997 WL
404719 (D.C. Cir. 1997) (regarding control of Venue by 28 U.S.C. 1391(b) relative to Bivens
Actions for claims against officials in their individual capacities.)
64. As illustrated above, Plaintiff Aaron Romero has exhausted the administrative remedies

13
Notably, Tolling for Bivens Actions and 42 U.S.C. 1983 Claims are governed by State Law, see Braxton v.
Zavaras, 614 F.3d 1156, 1159 (10
th
Cir. 2010). However, the Claims set for herein do not require Tolling based on
timely and proper filing of this Complaint within the statutory requirement mandated by the Statute of Limitations of
the State of New Mexico regarding Personal Injury lawsuits (i.e. Three Years).
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 20 of 175
21

relative to the Claim for Relief for Personal Injury against the United States Government - as
required by the FTCA, 28 U.S.C. 2675(a).
65. Exhaustion of administrative remedies is a perquisite to bringing an action in Federal
Court, but when Congress has not specifically required exhaustion, whether to require exhaustion
is a matter of sound judicial discretion and the Supreme Court of the United States has held
that exhaustion of administrative remedies is not absolutely required as a condition to pursuing a
Bivens Action in Federal court. See McCarthy v. Maddigan, 914 F.2d 1411 (10
th
Cir. 1990),
cert. granted, 499 U.S. 974, 111 S. Ct. 1618, 113 L. Ed. 2.d 716 (1991) and judgment reversed
on other grounds, 503 U.S. 140, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992).
66. Regardless, on November 26, 2013, Plaintiff Aaron Romero Presented Notice of
Intent to file a Bivens Action (against Defendants J ohn R. Castleberry, Patricia G. Whelan, and
Matthew B. Mayfield) to Drug Enforcement Administration and to the U.S. Department of
J ustice (Presented on November 27, 2013) in order to allow for sufficient time to address an
Administrative Remedy to the Constitutional Torts/Violations set forth herein.
14

67. On April 8, 2014, Plaintiff Aaron Romero again Presented to the DEA and to the U.S.
Department of J ustice (Presented on April 10, 2014) Notice of Intent to file a Bivens Action
against the Defendants, in order to allow for sufficient time to address an Administrative
Remedy to the Constitutional Torts/Violations set forth herein.
15

68. On May 30, 2014, Plaintiff Aaron Romero again Presented to the DEA a Notice of

14
The FTCA Claim and Bivens Notice were Presented via United States Postal Service, Priority Mail Express,
Return Receipt Article Number EG514830390US (Drug Enforcement Administration) dated November 26, 2013
and Article Number EU985327120US (Department of J ustice) dated November 27, 2013.

15
The Supplemental FTCA Claim (which added the Tortious Act of Negligence to the original FTCA Claim) and
Bivens Notice were Presented via United States Postal Service, Priority Mail Express, Return Receipt Article
Number EK226029262US (Drug Enforcement Administration) dated April 8, 2014 and Article Number
EK226029262US (Department of J ustice) dated April 10, 2014.

Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 21 of 175
22

Intent to file a Bivens Action against the Defendants, in order to allow for sufficient time to
address an Administrative Remedy to the Constitutional Torts/Violations set forth herein.
16

69. As of the date of this Complaint, Plaintiff Aaron Romero and Defendants J ohn R.
Castleberry, Patricia G. Whelan and Matthew B. Mayfield, have not resolved the Constitutional
Torts/Violations (set forth herein) administratively.
17

70. The Bivens action set forth herein is not restricted explicitly by Congress or through
other congressionally created and equally effective alternative remedies (declared as substitutes
by Congress for recovery under the Constitution - e.g. Social Security Act, Privacy Act,
Taxpayer Bill of Rights Act) to seek damages for violations of individual rights that in the
absence of affirmative action by Congress would produce special factors to counsel
hesitation. See Carlson v. Green, 446 U.S. 14 (1980); Bush v. Lucas, 462 U.S. 367 (1983);
Schweiker v. Chilicky, 487 U.S. 412, 423 (1988), and Correctional Services Corp. v. Malesko,
534 U.S. 61 (2001).
18

71. The Supreme Court has stated the Federal Tort Claims Act (FTCA) is not an alternative
remedy or an act of Congress that prohibits aBivens claim based on the legislative history of the
amendments to the FTCA. See Carlson v. Green, 446 U.S. 14 (1980), 100 S. Ct. 1468, 64 L. Ed.
2d 15 (1980) (legislative history of amendments to Federal Tort Claims Act specifically

16
The FTCA Claim and Bivens Notice were Presented via United States Postal Service, Priority Mail Express,
Return Receipt Article Number EG514831188US (Drug Enforcement Administration) dated May 30, 2014.

17
Defendants J ohn R. Castleberry, Patricia G. Whelan, and Matthew B. Mayfield are the original Defendants which
are listed in the three (3) separate Bivens Action Notices presented to Drug Enforcement Administration and
Department of J ustice. In this Compliant, Raymond Keith Brown and Joseph M. Arabit are also included as
Defendants based on the discovery of additional information (regarding personal involvement and supervisory roles)
relative to the Claims for Relief set forth herein.
18
Notably, a Defendant bears the burden to demonstrate that a Complaint does not state a Bivens claim based on the
existence of alternative remedies or special factors counseling hesitation, see Carlson v. Green, 446 U.S. 14, 100 S.
Ct. 1468, 64 L. Ed. 2d 15 (1980). Preemptively, Plaintiff Aaron Romero has demonstrated theBivens claimset
forth herein is the proper remedy based (in-part) on the absence of alternative remedies or special factors counseling
hesitation.

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23

demonstrated intent to allow both Bivens actions and FTCA actions in same lawsuit as
complimentary counterparts) and Bush v. Lucas, 462 U.S. 367 (1983).
19

72. Accordingly, the Court should infer properly that the remedy in the form of monetary
damages for the Constitutional Torts/Violations set forth herein lies in a Bivens claim against the
Defendants in their individual capacities.
20

73. The absence of other Constitutional remedy substitutes to a Bivens claim and a lack of
special factors counseling hesitation, coupled with Presentment of three (3) separate Bivens
Action Notices to Drug Enforcement Administration (DEA) and the U.S. Department of J ustice
regarding the Defendants (J ohn R. Castleberry, Patricia G. Whelan, and Matthew B. Mayfield) to
address an Administrative Remedy to the Constitutional Torts/Violations set forth herein, as well
as the failure of the Defendants to engage in an administrative resolution in the last eight (8)
months since the initial Presentment of the Bivens Notice on November 26, 2013, Plaintiff Aaron

19
Notably, 28 U.S.C. 2679(b)(1) (amended by the 1988 Amendment to the FTCA also known as the Westfall
Act of 1988) also establishes: (1) The remedy against the United States provided by sections 1346 (b) and 2672 of
this title for injury or loss of property, or personal injury or death arising or resulting from the negligent or wrongful
act or omission of any employee of the Government while acting within the scope of his office or employment is
exclusive of any other civil action or proceeding for money damages by reason of the same subject matter against
the employee whose act or omission gave rise to the claim or against the estate of such employee. Any other civil
action or proceeding for money damages arising out of or relating to the same subject matter against the employee or
the employees estate is precluded without regard to when the act or omission occurred. However, 28 U.S.C.
2679(b)(2)(A) declares: Paragraph (1) does not extend or apply to a civil action against an employee of the
Government (A) which is brought for a violation of the Constitution of the United States. Furthermore, in
Senate Report No. 93-588 dated November 29, 1973, the Committee on Government Operations added an
Amendment to the Reorganization Plan No. 2 of 1973 in which a Proviso was added to the Intentional Tort
Exception of the Federal Tort Claims Act (28 U.S.C. 2680(h)) to deprive the Federal Government of the defense of
sovereign immunity in cases in which Federal law enforcement agents, acting within the scope of their employment,
or under color of Federal Law, commit any of the following torts: assault, battery, false imprisonment, false arrest,
malicious prosecution, or abuse of process and the provision should be viewed as a counterpart to the Bivens
case and progeny, in that it waives the defense of sovereign immunity so as to make the Government independently
liable in damages for the same type of conduct that is alleged to have occurred in Bivens (and for which that case
imposes liability upon the individual Government officials involved), see S. Rep.93-588, S. Rep. No.588, 93th
Cong., 2
nd
Sess. 1974, 1974 U.S.C.C.A.N. 2789, 1973 WL 12539.
20
Indeed, the Supreme Court in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics determined
the proper remedy for violations of rights under the United States Constitution by Federal Law Enforcement
officials was in the form of monetary damages against each Federal Law Enforcement official in their individual
capacity as liability to Plaintiff Bivens.
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 23 of 175
24

Romero has exhausted all administrative remedies regarding the Claims for Relief under Bivens
as set forth herein.
74. The proper remedy for the Constitutional Torts/Violations set forth herein is a Bivens
claim against the Defendants in their individual capacity for monetary damages.
75. The Constitutional Torts/Violations committed against Plaintiff Aaron Romero by the
Defendants occurred in the State of New Mexico and Plaintiff Aaron Romero was a resident (and
continues to be a resident) of the State of New Mexico during the time frame of the commission
of the Constitutional Torts/Violations.
76. The Defendants J ohn R. Castleberry, Patricia G. Whelan, Matthew B. Mayfield, and
Raymond Keith Brown were residents of the State of New Mexico during the time frame of
the commission of the Constitutional Torts/Violations against Plaintiff Aaron Romero.
77. Ostensibly, J oseph M. Arabit resided in El Paso, Texas (outside the State of New
Mexico) during the time frame of the commission of the Constitutional Torts/Violations against
Plaintiff Aaron Romero.
78. However, J oseph Arabit, as Special Agent in Charge of the El Paso Field Division,
assumed the responsibility of management and supervision of the DEA Office in Albuquerque
and Las Cruces to include supervision of the other Defendants.
79. Accordingly, Plaintiff Aaron Romero has established the burden of proof to
demonstrate that the United States District Court in the State of New Mexico is authorized to
exercise Personal Jurisdiction over all the Defendants (to include J oseph M. Arabit) based on
establishment of a Constitutionally sufficient relationship between the Defendants and the Forum
(the Minimum Contacts Standard) following proper personal service of summons to each
Defendant in accordance with Fed R Civ P 4(d)(1). See Stephens v. Coleman, 712 F. Supp. 1571
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 24 of 175
25

(N.D. Ga. 1989), judgment affd, 901 F.2d 1571 (11 Cir. 1990) and International Shoe Company
v. State of Washington, Office of Unemployment Compensation & Placement, et al., 326 U.S.
310 66 S. Ct. 154 (1945).

RELATED/ASSOCIATED CLAIMS
FTCA ADMINISTRATIVE CLAIM FOR WRONGFUL DEATH AND
PERSONAL INJURY and BIVENS ACTION NOTICE FOR CONSTITUTIONAL
TORTS/VIOLATIONS
(Does not apply to the Claims for Relief set forth herein regarding Plaintiff Aaron Romero)

80. It is important to note that on February 5, 2014, the Law Office of Erlinda O.
J ohnson presented independent Administrative Claims and a Bivens Action Notice to DEA and
the U.S. Department of J ustice regarding Wrongful Death and Personal Injury as well as
Constitutional Torts/Violations relative to separate Claimants (other than and not applicable
Plaintiff Aaron Romero) committed and caused by the DEA and the SAME Defendants listed
herein, specifically, Defendants J ohn R. Castleberry, Patricia G. Whelan, Matthew B. Mayfield,
Raymond Keith Brown, and J oseph M. Arabit.
81. More precisely, the Law Office of Erlinda O. J ohnson Presented Claims for Relief on
behalf of: (A) Claimant JGE, a 6-year old minor through his Guardian Ad Litem Peter Tasso
(referred to as Claimant Minor J GE hereinafter) and legal biological son of Decedent J ason
Estrada, (B) Claimant Gabriela Gallegos, legal spouse of Decedent J ason Estrada and
biological mother of Claimant Minor J GE, (C) Claimant Joyce Estrada, biological mother of
Decedent J ason Estrada, (D) Claimant Jolene Estrada, biological sibling of Decedent J ason
Estrada, and (E) Claimant - The Estate of Decedent Jason Estrada: represented by
Gabriela Gallegos and Jolene Estrada (collectively the Claimants) for:
(1) the Wrongful Death of Jason Julian Estrada (Decedent J ason Estrada) arising out
of the DEAs Tortious Act of Negligence with the aggravated element of
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 25 of 175
26

Recklessness/Reckless Disregard, which produced the Proximate and Factual Cause of


Death of Decedent J ason Estrada on April 04, 2013, by (and in the active capacity) DEA
Defendant Confidential Source Edward Quintana (DEA Informant Edward
Quintana) in Albuquerque, New Mexico;
21

(2) Personal Injury arising out of the DEAs Tortious Act of Negligence with the
aggravated element of Recklessness/Reckless Disregard, which resulted in the
commission of the Intentional Tortious Acts of Assault (specifically, Criminal Sexual
Penetration of a Minor, Criminal Sexual Contact of a Minor, and Child Abuse), False
Imprisonment (Kidnapping), Intentional Infliction of Emotional Distress (IIED - also
known as Mental Distress in lieu of Emotional Distress), and Negligent Infliction of
Emotional Distress (NIED) against Minor J GE (Age 5 at the time of the commission of
the Tortious Acts) by DEA Informant Edward Quintana from on or about September
1, 2012 through April 3, 2013, in Albuquerque, New Mexico;
22

(3) Loss of Parent-Child Consortium arising out of the Wrongful Death of J ason J ulian
Estrada (biological father of Claimant Minor J GE) based on the Law of the State of New
Mexico under which A child may bring a Loss of Consortium Claim separately from
Claim of Wrongful Death of Parent. See State Farm Mutual Auto Ins. Co. v. Luebbers,
138 N.M. 289 2005-NMCA-112 (Ct. App. 2005).
(4) Personal Injury arising out of the DEAs Tortious Act of Negligence with the
aggravated element of Recklessness/Reckless Disregard, which resulted in the
commission of the Intentional Tortious Acts of Assault and Battery (specifically,
intentional infliction of blunt force trauma to the head (facial area) of J ason Estrada
followed by intentional infliction of four (4) gunshot wounds to the testicles, legs, lower
abdominal area, and right upper arm (noted as probable ricochet in the Office of Medical
Investigator Report) of J ason Estrada by DEA Informant Edward Quintana, causing
calculated intentional Conscious Pain and Suffering) and Intentional Infliction of
Emotional Distress (IIED) against J ason Estrada, on April 3, 2013 (prior to the
Wrongful Death of J ason Estrada on April 4, 2013);

21
DEA Informant Edward Quintana (aka Sweat, aka Lil Sweat) was Recruited, Established, Activated,
Managed, Supervised, utilized and Controlled by DEA and the SAME Defendants listed herein in Albuquerque and
Las Vegas, New Mexico from on or before September 27, 2011 to on or about April 4, 2013 as a Defendant
Confidential Source. Notably, DEA Informant Edward Quintana was deactivated on 04-04-13 by DEA in
Albuquerque upon revelation of DEA Informant Edward Quintanas commission of the homicide of J ason
Estrada on April 3, 2013. Furthermore, DEA Informant Edward Quintana was an Active Defendant Confidential
Source for DEA and the SAME Defendants listed herein in Operation Smack City in Las Vegas, N.M. (November
2011 through August 2012). DEA Informant Edward Quintana was also an active defendant confidential source
during the commission of the Intentional Tortious Acts of Wrongful Death (Homicide of J ason Estrada) on April 3,
2013, Assault (to include Sexual Assault of a Minor and Child Abuse), Battery, False Imprisonment, Intentional
Infliction of Emotional Distress, and Negligent Infliction of Emotional Distress, against The Claimants from
September 2012 through April 3, 2013 in Albuquerque, New Mexico.

22
The Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm, Volume 1, 19 Comment
(a) declares Negligence as a Tortious Act by indicating, An actors foreseeable negligence may be improper
conduct that imperils another person; if so, the foreseeable negligence is tortious.
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27

(5) Personal Injury arising out of the DEAs Tortious Act of Negligence with the
aggravated element of Recklessness/Reckless Disregard, which resulted in the
commission of the Intentional Tortious Act of Negligent Infliction of Emotional
Distress (NIED) against Claimant Gabriela Gallegos by DEA Informant Edward
Quintana, from on or about February 20, 2013 through April 3, 2013, in Albuquerque,
New Mexico, based on the revelation of the commission of the Assault (specifically,
Criminal Sexual Penetration of a Minor, Criminal Sexual Contact of a Minor, and Child
Abuse), False Imprisonment (Kidnapping), Intentional Infliction of Emotional
Distress (IIED) against Minor J GE (age 5 at the time of the commission of the Tortious
Acts by DEA Informant Edward Quintana).
(6) Compensatory and Punitive Damages concerning Violations of Constitutional Rights
[independent of the FTCA Claims depicted above in (1) through (5)] under the Fifth
Amendment to the United States Constitution and Bivens v. Six Unknown Federal
Narcotics Agents, 403 US 388 (1971) which acknowledged a Private Cause of Action
for violations of rights afforded under the Constitution, specifically the Violation of the
Right to Due Process.

82. Importantly, the intent and purpose of including the foregoing separate but related
FTCA Claim and Independent Bivens Action Notice regarding The Claimants is to
demonstrate the pattern of Outrageous Government Conduct, Negligence, and recklessness
/Reckless disregard by the United States (Drug Enforcement Administration - DEA) and the
SAME Defendants listed herein.
83. More specifically, the same DEA Agents and Managers (the Defendants) that were
involved in the commission of Tortious Acts (Intentional Tort of Intentional Infliction of
Emotional Distress and Negligence), Misrepresentations, Material Omissions, Outrageous
Government Conduct, and Constitutional Torts/Violations that factually and proximately caused
Personal Injury to Plaintiff Aaron Romero in the form of Emotional Distress, Pain and Suffering,
and Mental Anguish were the same DEA Agents and Managers that factually and proximately
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caused (through Negligence and Recklessness) the Personal Injuries to The Claimants and the
Wrongful Death of J ason J ulian Estrada - as expressly described immediately above.
23

FACTUAL BACKGROUND

84. Plaintiff Aaron Romero (referred to as Aaron in this section) was born on May
1, 1976, in Las Vegas, New Mexico to the union of Cheryl Romero and Al Romero.
85. Aaron was described as a good baby. He was quiet, active but cautious. As a child,
Aaron required a lot of attention.
86. Aaron was strong willed, happy and energetic.
87. In school, Aaron was an average student and had a lot of friends while he was
growing up.
88. Aaron had a close relationship with his mother, father, and siblings.
89. In early high school, Aaron began experimenting with alcohol and marijuana.
Aarons alcohol use became so serious that his parents sought the intervention of the courts in
order to have him ordered to attend an inpatient treatment program. Unfortunately, court
intervention failed based on a lack of pending charges relative to Aaron.
90. In May 1994, Aaron graduated from Robertson High School in Las Vegas, New
Mexico.
91. The night before he graduated from high school, a friend of Aarons introduced him
to Crack Cocaine, and from that day forward, the addiction to Crack Cocaine began to dominate
Aarons life for the next 17 years up to the summer of 2011.

23
The Complaint regarding the FTCA Claim for Relief and Bivens Action relative to The Claimants will be filed
in the District of New Mexico on or shortly following Monday, August 4, 2014 pursuant to 28 U.S.C. 2675(a)
and Bivens.
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92. Shortly, after graduating from high school, Aaron went to work at his fathers
business in the parts department of Quality Motors in Las Vegas, New Mexico.
93. At the same time, Aaron and his girlfriend moved in together and started a family and
within a few years, a son and daughter were born to Aaron and his girlfriend.
94. During the summer of 1994, Aaron was using Crack Cocaine every other weekend.
However, his addiction continually grew.
95. Aaron began to use Crack Cocaine a couple of times per week.
96. The addiction to Crack Cocaine evolved into daily usage by Aaron. By 1996, Aaron
was taking Crack Cocaine to work and consuming the Crack Cocaine during his work day.
97. In 1998, Aaron was promoted to parts manager at Quality Motors. However, Aarons
addiction was severe and uncontrollable, and eventually, Aarons girlfriend and children
departed and severed the family relationship with Aaron based on Aarons severe and
dominant addiction to Crack Cocaine.
98. By 1999, Aaron was using Crack Cocaine several times per day.
99. In early 1999, Aaron obtained a loan for approximately $500 and spent the entire loan
amount to purchase Crack Cocaine and subsequently consumed the Crack Cocaine in less than
two days. At that time, Aaron approached his father and confessed that Aaron was battling drug
addiction to Crack Cocaine.
100. On May 6, 1999, Aaron checked into the Turquoise Lodge In-Patient Drug
Treatment Program at 6000 Isleta Blvd. S.W., in Albuquerque, New Mexico. While in
treatment, Aaron received a diagnosis of substance abuse. After treatment, Aaron was
discharged from Turquoise Lodge on May 29, 1999, and returned to Las Vegas, New Mexico.
101. Within one week of returning to Las Vegas, Aaron began to use Crack Cocaine
on a daily basis again.
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102. Over the next 7-8 years, Aaron continued to work for his father at Quality Motors
with his two brothers. However, Aaron continued to use Crack Cocaine on a daily basis. As a
result, Aarons performance was poor and ineffective while working at the family business and
the relationship with his father and two brothers (who also worked for the family business)
deteriorated to a nearly irreparable level.
103. In 2007, Aaron met Theresa Saiz and they moved in together as boyfriend and
girlfriend.
104. At that time, Theresa had separated from her husband and was in self-recovery to
end drug addiction to Crack Cocaine. In response, Aaron ceased using Crack Cocaine and both
Aaron and Theresa were clean for a long period of time between 2007 and 2008.
105. However, in 2008, Theresa succumbed to the addiction and obtained Crack
Cocaine which both Aaron and Theresa consumed. At age 32, Aaron began to use Crack
Cocaine on a daily basis again.
106. In 2008, the addiction to Crack Cocaine eventually resulted in the decision by
Aarons father to force Aaron to resign his employment at the family business based on the
deterioration of Aarons job performance and the destruction of the relationship between Aaron
and his family.
107. Subsequently, Aaron was unable to maintain regular employment between 2008
through 2012, based on his addiction to Crack Cocaine.
108. In order to earn money to maintain his addiction to Crack Cocaine, Aaron would
scour the neighborhood for a handful of side jobs to repair vehicles and Aaron would beg,
borrow, and steal money from his father and mother to sustain the addiction to Crack Cocaine.
109. Furthermore, Aaron would also complete side jobs for known drug traffickers in
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an effort to obtain Crack Cocaine as payment for the completed work or receive payment in the
form of cash which Aaron would utilize immediately to purchase Crack Cocaine for
consumption (by Aaron).
110. In 2010, Aaron met an individual named Cesario through a local drug trafficker.
111. It is important to note that Cesario is the same individual that was
established and utilized as a DEA Confidential Source (CS)/Informant (referred to as CS
Cesario herein) by the United States Government and the Defendants during the course of
the investigation from November 2011 through August 2012.
112. CS Cesario was utilized by DEA to purchase Crack Cocaine and other
controlled substances in an undercover capacity.
113. CS Cesario was also the same individual that distributed Crack Cocaine to
Plaintiff Aaron Romero as authorized by the Defendants.
114. CS Cesario was a crack cocaine customer of a local drug trafficker.
115. Toward the end of 2010, the local drug trafficker removed 2 grams of Crack
Cocaine from his vehicle and left the 2 grams of Crack Cocaine at Aarons residence in an effort
to avoid detection from law enforcement.
116. The local drug trafficker directed Aaron not to consume, sell, or touch
the Crack Cocaine.
117. However, in line with his severe addiction to Crack Cocaine, Aaron immediately
(and without hesitation) smoked/ingested the 2 grams of Crack Cocaine regardless of the
consequences.
118. The following day, the local drug trafficker returned to retrieve the 2 grams of
Crack Cocaine only to learn that Aaron had consumed the entire 2 grams of Crack Cocaine.
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119. As a result, the local drug trafficker became furious with Aaron and demanded
immediate payment from Aaron for the 2 grams of Crack Cocaine.
120. Consequently, Aaron had to borrow money from his mother and father again to
pay the 2 gram Crack Cocaine debt to the local drug trafficker.
121. After that incident, Aaron attempted to continue to obtain Crack Cocaine to
support his addiction from the same local drug trafficker through work or other means necessary.
122. However, based on the severe addiction to Crack Cocaine by Aaron, the local
drug trafficker refused to provide or sell Crack Cocaine to Aaron.
123. In a desperate response to the crippling addiction to Crack Cocaine, Aaron
contacted Cesario and suggested that Cesario should not purchase Crack Cocaine from the same
local drug trafficker.
124. Instead, in an effort to establish a reliable process to obtain Crack Cocaine for
consumption, Aaron suggested that Cesario purchase Crack Cocaine through Aaron from
different local drug traffickers and provide a small amount of Crack Cocaine as payment to
Aaron (for consumption by Aaron) for the brokered Crack Cocaine transactions.
125. In reaction, Cesario agreed to the suggestion and at the end of 2010 or early 2011,
Cesario began to utilize Aaron as a broker to purchase Crack Cocaine 2-3 times or more per
week for Cesario.
126. As payment for the brokered transaction, Cesario would supply a small portion of
Crack Cocaine to Aaron for consumption, and that small amount of Crack Cocaine would
provide a one-to-two day supply of Crack Cocaine for ingestion by Aaron.
127. Notably, this Crack Cocaine brokerage and consumption pattern between Cesario
and Aaron continued for 6-7 months to mid-summer 2011.
128. Throughout the Crack Cocaine brokerage and consumption relationship, Aarons
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addiction consisted of daily use of Crack Cocaine.


129. However, in mid-summer 2011, Cesario suddenly stopped visiting Aaron and the
Crack Cocaine brokerage and consumption relationship between Cesario and Aaron ceased
abruptly.
130. In a frantic response, Aaron attempted to obtain Crack Cocaine for consumption
over a period of several days to a week, without involvement of Cesario, in order to support the
crippling addiction to Crack Cocaine by Aaron.
131. However, Aaron was unable to acquire Crack Cocaine for consumption from any
local drug traffickers or drug users based on a lack of money (and the means to obtain money)
and refusal of the local drug traffickers to supply Aaron with Crack Cocaine without involvement
of Cesario and the reliable stream of money to purchase Crack Cocaine.
132. At this point, without involvement of Cesario and the reliable system to acquire
Crack Cocaine, Aaron was unable to obtain Crack Cocaine for consumption, and after several
days to a week of a period of dryness, Aaron spiraled into a terrifying seemingly-inescapable
depression that was filled with anguish, self-loathing, remorse, fear, and guilt for the nearly two
decades of his addiction to Crack Cocaine that wreaked havoc upon his family and the long
established family business (Quality Motors in Las Vegas, New Mexico), to include the
relationship with his children, his parents, and his siblings, as well as the destruction to his
mental and physical health.
133. As the fog of addiction to Crack Cocaine receded gradually over a period of
several weeks during the summer of 2011, coupled with the enduring failure to obtain Crack
Cocaine for consumption, Aaron began to focus slowly on the hope and belief of recovery from
addiction to Crack Cocaine.
134. More importantly, Aaron began to attempt to rehabilitate gradually his
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relationships with his parents, siblings, and children.


135. Over the course of several months from mid-summer 2011 to mid-November
2011, Aaron had ceased consumption of Crack Cocaine completely and although the incredibly
daunting and alluring craving of addiction persisted daily (and at times, hourly), Aaron was able
to refrain from continued, desperate attempts to procure Crack Cocaine for consumption.
136. Remarkably, by mid-October 2011, Aaron believed in his self-rehabilitation
through the forced cessation of consumption of Crack Cocaine and a renewed effort to repair his
mental and physical health enhanced by the inspiration of reconciliation of his personal
relationships.
137. Indeed, Aaron believed that the key to complete recovery from the addiction to
Crack Cocaine was the absence of the seductive exposure and availability of Crack Cocaine to
Aaron and the therapeutic nature of the restoration of his personal relationships.
138. However, most surprisingly to Aaron, the healing of his relationships with his
children, and to a lesser extent his parents and siblings, was a more difficult undertaking than
Aaron had imagined but in a recharged recovery effort, Aaron continued the revitalization of his
relationships with his family.
139. In mid-November 2011, the high degree of distrust exhibited by Aarons family
members (regarding the potential relapse of addiction to Crack Cocaine by Aaron) receded
slightly and the persistent craving for Crack Cocaine moderated to a tolerable level.
140. As Aaron continued his focus to recover from years of addiction to Crack Cocaine,
Aaron began to face the difficulties and the subsequent stress of the realities of life that included
the search for employment, payment of bills, and other routine tasks.
141. As Aaron was struggling to meet the demands of everyday life, together with the
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grueling but increasingly successful effort to heal the relationship with his children and other
family members, DEA brought Cesario (CS Cesario) back to Las Vegas to work as a DEA
informant.
142. Upon his return in mid-November, CS Cesario contacted Aaron and informed Aaron
that he had been busy taking care of his grandmother at the ranch and he was in town for the
day.
143. CS Cesario continued by asking Aaron to restart the Crack Cocaine brokerage and
consumption relationship and CS Cesario would start coming in for bigger amounts because he
had sold a trailer.
144. Notably, Aaron rejected the invitation by CS Cesario to restart the Crack Cocaine
brokerage and consumption relationship and Aaron informed CS Cesario that Aaron was clean
and intended to remain clean.
145. Undeterred and presumably directed by DEA as an informant, CS Cesario continued
to engage Aaron numerous times over the next few days and weeks to restart the Crack Cocaine
brokerage and consumption relationship.
146. During the week of Thanksgiving, CS Cesario again approached Aaron with the
seductive and alluring offer of if you score (crack) for me (Cesario), I will hook you up sick
referring to the payment of large amount of Crack Cocaine to Aaron (as a broker) for
consumption based on the acquisition of Crack Cocaine for Cesario.
147. As a result of the seductive allure of the offer of a large amount of Crack Cocaine
(generated and fueled by nearly two decades of addiction to Crack Cocaine by Aaron),
compounded by the stress to meet the demands of everyday life and the arduous effort to heal the
relationship with his children and other family members, Aaron agreed to act as a broker to
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obtain Crack Cocaine in return for payment of a large amount of Crack Cocaine (characterized
by Cesario as Hook you up sick) for consumption.
148. Consequently, on November 30, 2011 (as outlined in the below Counts), CS Cesario
and Aaron engaged in a Crack Cocaine transaction in which Aaron acquired ounce of Crack
Cocaine as a broker for CS Cesario and in return, CS Cesario provided a large portion of the
Crack Cocaine to Aaron for consumption.
149. Notably, the portion of Crack Cocaine provided to Aaron by CS Cesario was the
largest quantity of Crack Cocaine CS Cesario had supplied to Aaron as payment for the
procurement of Crack Cocaine during the previous Crack Cocaine brokerage and consumption
relationship between Aaron and CS Cesario.
24

150. As a consequence of the distribution of the large portion of Crack Cocaine to
Aaron by the United States Government, Aaron consumed the Crack Cocaine over a period of
two days which resulted in the resurrection of the crippling addiction to Crack Cocaine by
Aaron.
151. Furthermore, during the Crack Cocaine transaction, Cesario (acting in the capacity
of a DEA Confidential Source) introduced another Confidential Source named J ason (acting in
the capacity of a DEA Confidential Source and referred to as CS J ason herein) to expand the
Crack Cocaine brokerage and consumption relationship between Cesario and Aaron in order to
include J ason.

24
As corroborative evidence of the provision of large amount of Crack Cocaine - Hook you up sick to Plaintiff Aaron Romero,
the weight of the subject Crack Cocaine (DEA Drug Exhibit 1) submitted to the DEA Laboratory for analysis is listed as 0.9
grams (DEA Form-7, DEA Drug Exhibit 1). However, the submitted weight of 0.9 grams of Crack Cocaine is in contrast to the
DEA report that indicates CS Cesario purchased ounce of Crack Cocaine from Plaintiff Aaron Romero (for $200.00).
Indeed, one-quarter () of an ounce of Crack Cocaine would result in (1 ounce) 28 grams/4 =7 grams of Crack Cocaine rather
than the 0.9 grams of Crack Cocaine (less than a gram) provided to CS Cesario through Plaintiff Aaron Romero - a discrepancy
of 6.1 grams of Crack Cocaine. As result, Cesario, based upon prior approval by the United States and the Defendants (refer to
the Counts below), provided approximately 6.1 grams of Crack Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff
Aaron Romero).
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152. Within a few days following the transaction on November 30, 2011, Cesario
returned to Las Vegas, New Mexico and contacted Aaron to arrange for the acquisition of $40-
$50 worth of Crack Cocaine in exchange for payment of Crack Cocaine to Aaron for
consumption.
153. After consumption of the large amount of Crack Cocaine distributed to Aaron on
November 30, 2011 by the United States Government and the subsequent related relapse of
addiction to Crack Cocaine, Aaron agreed to arrange for the acquisition of $40-$50 worth of
Crack Cocaine in exchange for payment of Crack Cocaine to Aaron for consumption.
154. Consequently, this pattern of arrangement of the acquisition of $40-$50 worth of
Crack Cocaine to ounce of Crack Cocaine for Cesario in exchange for payment of Crack
Cocaine to Aaron for consumption continued 2-3 times per week from early December 2011
through May 2012.
155. Furthermore, Cesario would often smoke Crack Cocaine with Aaron but notably,
Cesario would not smoke Crack Cocaine with Aaron following transactions that consisted of
amounts of Crack Cocaine larger than $40-$50 worth of Crack Cocaine, specifically ounce of
Crack Cocaine or larger.
25

156. In December 2011 and J anuary 2012, J ason (under the direction and control of DEA)
utilized Aaron to arrange for the acquisition of ounce of Crack Cocaine in exchange for
payment of Crack Cocaine to Aaron for consumption on two separate occasions.
157. After the United States Government deliberately and intentionally restarted the

25
The transactions that consisted of amounts of Crack Cocaine larger than $40-$50 worth of Crack Cocaine, specifically ounce
of Crack Cocaine or larger, most likely occurred as controlled buys under the direction and control of DEA and as a result,
Cesario would not consume Crack Cocaine with Aaron.
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addiction to Crack Cocaine by Plaintiff Aaron Romero on November 30, 2011, Aarons life
devolved again into a situation in which Aaron was penniless and unable to escape from his
addiction, to seek employment.
158. Aaron once more suffered the loss of his relationships with his girlfriend (Theresa
Saiz), siblings, parents, and children.
159. The governments calculated provision of a reliable system of distribution of Crack
Cocaine to Plaintiff Aaron Romero (for his consumption and in order to maintain his addiction to
Crack Cocaine) and the utilization of his addiction to Crack Cocaine was done for the purpose of
furthering the investigation of drug trafficking targets in Las Vegas, New Mexico and stacking
drug related charges against Plaintiff Aaron Romero.
160. In a significantly shocking and painful event, Aarons father was involved in an
accident in April 2012 which required the use of a wheelchair and continuous care from his
family and Aaron.
161. However, the continued Crack Cocaine brokerage and consumption relationship
between Cesario and Aaron, coupled with Aarons severe addiction to Crack Cocaine, interfered
with Aarons responsibility to care for his father, and as a result, Aarons father directed Aaron
not to participate in his care any longer.
162. As a result of the severance of the relationship with his father (based on Aarons
severe addiction to Crack Cocaine), Aaron was heartbroken and suffered severe mental anguish
and pain and suffering.
163. On August 8, 2012, approximately 9 months after the United States Government
deliberately and intentionally restarted Plaintiff Aaron Romeros addiction to Crack Cocaine on
November 30, 2011, Aaron was arrested based on charges outlined in the attached indictment
(EXHIBIT 1).
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164. As a result, Aaron spent the next five months in various levels of confinement.
165. After restricted Pre-Trial release, Aaron returned to Las Vegas, New Mexico on
J anuary 18, 2013.
166. At this point, Aaron did not have a home, any money, or employment. Aaron had
completely lost his relationships with his brothers, children, and father.
167. Indeed, Aarons mother provided the only source of minimal assistance to Aaron.
168. As before, during the summer and fall of 2011, Aaron had to start over again to
rebuild his very strained relationships with his parents and siblings.
169. However, most heartbreakingly, Aaron has been unable to rehabilitate his
relationship with his children relationships which Aaron had begun to heal during the summer
and fall of 2011 until the United States Government deliberately caused his relapse to the
addiction to Crack Cocaine on November 30, 2011.
170. Currently, Aaron has not used Crack Cocaine or any controlled substance since his
arrest in August 2012.
171. Aaron continues to work through drug recovery and repair his relationships with his
family, to include continued but unsuccessful efforts to restore his relationship with his children,
most notably his son.
COUNT I --
TORTIOUS ACTS OF NEGLIGENCE UNDER THE FTCA
AGAINST DEFENDANT UNITED STATES OF AMERICA


172. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
173. Defendant United States is liable to plaintiff under the FTCA (28 U.S.C.
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1346(b)) for the tortious act of negligence committed against Plaintiff that caused personal injury
to plaintiff by causing the deliberate relapse of his addiction to crack cocaine and by distributing
crack cocaine to Plaintiff for consumption.
174. Pursuant to 28 U.S.C. 1346(b), six (6) conditions must be satisfied in order to
impose liability upon the United States under the FTCA for claims against the United States,
specifically:
(1) A Claim for money damages
(2) A claim for Loss of Property, or Personal Injury, or Wrongful Death
(3) A claim arising out of a Negligent or Wrongful Act or Omission of any Federal
Employee of the Government
(4) The Negligence or Wrongful Act or Omission committed by the Federal Employee
occurred while the Federal Employee was acting within the scope of his or her office
or employment
(5) The Negligence or Wrongful Act or Omission committed must be considered under
circumstances where the United States, if a Private Person, would be liable to the
Plaintiff, specifically, 28 U.S.C. 2674 states, The United States shall be liable,
respecting the provisions of this Title relating to Tort claims, in the same manner and
to the same extent as a private individual under like circumstances.
(6) The Negligence or Wrongful Act or Omission committed is in accordance with the
law of the place where the Act or Omission occurred (referring to Law of the State)

175. To begin, Defendant United States of America owed a duty of care as a private person
under New Mexico state law to prevent harm to Plaintiff.
176. The Tortious Act of Negligence is recognized under the Law of the State of New
Mexico as a Tortious Act and as a Liability of Private Persons (Private Person Liability). See
Southern Union Gas Co. v. Briner Rust Proofing Co., 65 N.M. 32, 331 P.2d 531 (1958); Herrera
v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181 (N.M. 2003); Chavez v. Desert Eagle
Distributing Co. of N.M., 2007-NMCA-018, 151 P.3d 77 (N.M. Ct. App. 2006); and Romero v.
Stop-N-Go of New Mexico, Inc., 2009-NMCA-059, 212 P.3d 408 (N.M. Ct. App. 2009).
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177. As a result of Negligence (while acting within the scope of employment), the
United States Government is liable as a Private Person in the State of New Mexico to Plaintiff
Aaron Romero for personal injury or death caused by the negligent or wrongful act or omission
of any employee of the Government while acting within the scope of his office or employment,
under circumstances where the United States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or omission occurred. 28 U.S.C.
1346(b).
178. Under the Law of the State of New Mexico, the elements of Negligence regarding
Liability relative to Private Persons are defined as:
(1) Negligence claim requires the existence of a duty from a Defendant to a Plaintiff,
breach of that duty, which is typically based upon a standard of reasonable care, and
the breach being the proximate cause and cause in fact of the plaintiffs damages,
Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181 (N.M. 2003); Chavez v.
Desert Eagle Distributing Co. of N.M., 2007-NMCA-018, 151 P.3d 77 (N.M. Ct.
App. 2006).

(2) Negligence encompasses the concepts of Foreseeability of harm to the person
injured and of a duty of care toward that person. See Herrera v. Quality Pontiac,
2003-NMSC-018, 73 P.3d 181 (N.M. 2003).

(3) Negligence involving harm caused by criminal acts of third parties requires the
existence of a Special Relationship between the Actor and another in order to
establish grounds for a Claim of Negligence, specifically a person does not have a
duty to protect another from harm caused by the criminal acts of third parties unless
the person has a special relationship with the other giving rise to the duty. See
Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181 (N.M. 2003); Chavez v.
Desert Eagle Distributing Co. of N.M., 2007-NMCA-018, 151 P.3d 77 (N.M. Ct.
App. 2006); Romero v. Stop-N-Go of New Mexico, Inc., 2009-NMCA-059, 212 P.3d
408 (N.M. Ct. App. 2009).

(4) In addition to the Special Relationship exception, the general rule that one does not
have a duty to protect another from criminal harm caused by criminal acts of third
person does not apply if the defendant should have recognized that his or her actions
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were likely to lead to that criminal activity (Foreseeability). See Chavez v. Desert
Eagle Distributing Co. of N.M., 2007-NMCA-018, 151 P.3d 77 (N.M. Ct. App.
2006).

(5) Criminal Acts of a third person will not relieve a negligent defendant of liability if
the defendant should have recognized that his or her actions were likely to lead to that
criminal activity. See Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181
(N.M. 2003).

(6) Act of third person in committing an intentional tort or crime is superseding cause of
harm to another resulting therefrom, although the actors negligent conduct created a
situation which afforded an opportunity to the third person to commit such a tort or
crime, unless the actor at the time of his or her negligent conduct realized or should
have realized the likelihood that such a situation might be created, and that a third
person might avail himself or herself of the opportunity to commit such a tort or
crime. See Herrera v. Quality Pontiac, 2003-NMSC-018, 73 P.3d 181 (N.M. 2003).

179. On November 30, 2011, CS J ason (referred to as CS-1 in the DEA Report) and CS
Cesario (referred to as CS-2 in the DEA Report) purchased ounce of Crack Cocaine (DEA
Drug Exhibit 1) through Plaintiff Aaron Romero for $200.00 at the residence of Plaintiff Aaron
Romero recorded as DEA Audio Exhibit N-3, File 2.
180. In this undercover operation, the United States demonstrated the knowledge and
belief of the United States regarding the addiction to Crack Cocaine by Plaintiff Aaron Romero
and DEA subsequently distributed Crack Cocaine to Plaintiff Aaron Romero for his
consumption.
181. Most notably, during the recording of the November 30, 2011,
26
undercover
purchase of Crack Cocaine by CS J ason and CS Cesario through Plaintiff Aaron Romero, DEA
Agent J ohn R. Castleberry (prior to the acquisition of Crack Cocaine through Plaintiff Aaron
Romero) authorized CS J ason and CS Cesario to distribute Crack Cocaine to Plaintiff Aaron

26
At approximate Time Mark 13:23.22 of DEA Audio Exhibit N-3, File 2
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Romero as a broker payment for the procurement of Crack Cocaine by stating (DEA Agent J ohn
Castleberry acting under the color of Federal Law as employee of the United States), Hes
waiting to get a little, all right, thats fine and CS Cesario responded, Hes going to skim off
the sack and fucking go smoke it.
182. In response, Agent Castleberry (in the background) stated again, Thats fine.
183. In this conversation, CS Cesario indicates that Plaintiff Aaron Romero will remove
an unidentified portion of the Crack Cocaine for consumption (by Plaintiff Aaron Romero) as
payment for the procurement of the Crack Cocaine for the DEA Informants (and the United
States).
184. In response, the United States authorized the distribution of Crack Cocaine for
consumption by Plaintiff Aaron Romero.
185. More importantly, the United States failed to set a prohibition of this procedure of
providing Crack Cocaine to Plaintiff Aaron Romero (for consumption) .
186. The United States also failed to set a prohibition of the alteration and destruction
of the drug evidence exhibit (in accordance with DEA Policy and the Attorney Generals
Guidelines Regarding Use of Confidential Informants, fundamental Law Enforcement principles,
and clearly established law as described above) allowing it to be used as broker payments to
Plaintiff, by CS J ason and CS Cesario in the undercover operations.
27

187. Rather, the United States continued to utilize Plaintiffs addiction to Crack
Cocaine to further the investigation of drug traffickers in Las Vegas.

27
As noted above in the Introduction, the provision of controlled substances to individuals by DEA is a clear breach
of DEA Policy, specifically, DEA Manual, Appendix B, Section III Undercover Operations, subsection D (DEA
may furnish an item necessary to the commission of an offense other than a controlled substance) and subsection E
and in a manner that violated the Attorney Generals Guidelines Regarding Use of Confidential Informants and
Tampering with Evidence.
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44

188. Moreover, prior to authorization by the United States to CS Cesario to distribute


Crack Cocaine to Plaintiff Aaron Romero, as a broker payment for the procurement of Crack
Cocaine on November 30, 2011, the United States was aware of Plaintiffs severe addiction to
Crack Cocaine.
189. Defendant United States was aware of Plaintiffs severe addiction through
statements of CS Cesario and inferentially local law enforcement officers in Las Vegas.
190. As a result, the United States Government Intentionally and Negligently caused the
Emotional Distress to Plaintiff Aaron Romero based on the commission of the Tortious Act of
Negligence against Plaintiff Aaron Romero through the deliberate relapse of Plaintiffs addiction
to Crack Cocaine and the intentional distribution of Crack Cocaine to Plaintiff Aaron Romero on
at least six (6) occasions during the course of the investigation as set forth herein the Factual
Basis.
191. Finally, it is important to note, the weight of the November 30, 2011Crack Cocaine
(DEA Drug Exhibit 1) submitted to the DEA Laboratory for analysis is listed as 0.9 grams
(DEA Drug Exhibit 1).
192. However, the submitted weight of 0.9 grams of Crack Cocaine is in contrast to
the DEA Report of Investigation that indicates CS J ason and CS Cesario purchased ounce of
Crack Cocaine from Plaintiff Aaron Romero (for $200.00).
193. Indeed, one-quarter () of an ounce of Crack Cocaine would result in (1 ounce)
28 grams/4 =7 grams of Crack Cocaine rather than the 0.9 grams of Crack Cocaine (less than a
gram) provided to CS J ason and CS Cesario by Plaintiff Aaron Romero - a discrepancy of 6.1
grams of Crack Cocaine.
194. Consequently, the discrepancy of the weight of the Crack Cocaine depicted as
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45

purchased ounce of Crack Cocaine from Plaintiff Aaron Romero (for $200.00) and the
actual weight of the Crack Cocaine (0.9 grams) submitted to the DEA Laboratory for analysis
establishes corroborative evidence that CS J ason and CS Cesario distributed a large portion of
the Crack Cocaine as payment to Plaintiff Aaron Romero for his consumption.
195. Most notably, the United States authorized the distribution of Crack Cocaine as
payment to Plaintiff Aaron Romero for consumption as indicated in DEA Audio Recording
Exhibit N-3, File 2.
28

196. Plaintiff Aaron Romero was charged in Count 1 of the Indictment (CR-12-1901
EXHIBIT 1) for the November 30, 2011, Distribution of Cocaine Base within 1,000 Feet of a
Schools or Colleges.
197. As a result of Count 1 of the Indictment, the sentence range for Plaintiff Aaron
Romero was a Minimum Mandatory term of 1 year of imprisonment for Distribution within
1,000 Feet of a school or university and the sentence range for the underlying offense of
Distribution under 21 U.S.C. 841(a)(1) and (b)(1)(C) would be calculated as twice the
maximum penalty under Federal Law essentially a sentence range of up to 40 years.
198. Moreover, the sentencing J udge is authorized under Federal Law to impose the
sentence on the underlying Distribution charge to be served consecutively to the 1 year
minimum mandatory leading to a potential sentence range of 1 year to 40 years of
imprisonment relative to Count 1 of the Indictment.

28
The information and evidence were extracted from DEA Form-6 Report of Investigation titled Acquisition of Exhibit 1
by CS-(redacted) and CS-(redacted) from Aaron Romero in Las Vegas, NM [on 11-30-11] dated 12-01-11 by Special Agent
J ohn Castleberry and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011, DEA Form-7 (Laboratory
Submission Form) dated 12-01-11 regarding Exhibit 1 by Special Agent Patricia Yazzie [Patricia G. Whelan] and approved by
Group Supervisor Matthew Mayfield; and DEA Audio Recording Exhibit N-3, File 2. The reports and audio recording are
available to the Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were
generated by the United States and therefore, the reports and audio recordings are in possession of the United States.

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46

199. Most notably, Plaintiff Aaron Romero was also charged in six (6) additional
Counts for Distribution within 1,000 Feet of a school or university in Counts 2, 4, 6, 7, 8, and 9
of the Indictment (EXHIBIT 1) leading to a potential sentence range of 1 year to 40 years
of imprisonment relative to each Count of the Indictment.
200. Therefore, the sentence range for Plaintiff Aaron Romero regarding Counts 1, 2,
4, 6, 7, 8, and 9 was a Minimum Mandatory Sentence of 7 years of imprisonment to a
Maximum sentence of 40 years of imprisonment based on a total number of seven (7) Counts
of Distribution within 1,000 Feet of a school or university in the Indictment.
201. Plaintiff Aaron Romero was also charged in Count 13 of the Indictment
(EXHIBIT 1) with Maintaining a Place for Distribution of Controlled Substances.
202. As a result of Count 13 of the Indictment, the sentence range for Plaintiff Aaron
Romero was a term of up to 20 years of imprisonment and a Fine of up to $500,000.00 for
Maintaining a Place for Distribution of a Controlled Substance.
203. The Tortious Act of Negligence of the United States committed against Plaintiff
Aaron Romero is further based on the following affirmative act:
204. On December 8, 2011, CS J ason (referred to as CS-1 in the DEA Report) and CS
Cesario (referred to as CS-2 in the DEA Report) purchased ounce of Crack Cocaine (DEA
Drug Exhibit 2) through Plaintiff Aaron Romero for $200.00 at the residence of Plaintiff Aaron
Romero.
29

205. In this undercover operation, the United States demonstrated the knowledge and belief
of the United States regarding the addiction to controlled substances by Plaintiff Aaron Romero

29
This transaction was recorded as DEA Audio Exhibit N-5

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47

and his girlfriend Theresa Saiz, and the United States subsequently distributed Crack Cocaine to
Plaintiff Aaron Romero for his consumption, in furtherance of the investigation.
30

206. The December 8, 2011, recording of the undercover purchase of Crack Cocaine by CS-
J ason and CS Cesario through Plaintiff Aaron Romero shows (prior to acquisition of the Crack
Cocaine from Plaintiff Aaron Romero), CS Cesario describing Plaintiff Aaron Romero and his
girlfriend Therese Saiz as, Like I told you, if his chick is there, shes going, shes the smart
onenot him Hes like a dumb motherfucker.
31

207. In response, DEA Agent J ohn Castleberry stated, Hopefully, we can catch it when
theyre both high, smashing on that shit, so well see.
208. In this segment of the conversation, CS Cesario explains that Theresa Saiz is more
cautious than Plaintiff Aaron Romero as it relates to activities associated with controlled
substances.
209. In response, the United States demonstrated knowledge and the belief of the United
States regarding the addiction to controlled substances (referred to as both high, both smashing
on that shit) by Plaintiff Aaron Romero and Theresa Saiz by stating, Hopefully, we can catch it
when theyre both high, smashing on that shit, so well see.
210. Most shockingly, the statement by DEA Agent John Castleberry indicates the
Negligent umbrella strategy of the United States as it related to Plaintiff Aaron Romero

30
The information and evidence were extracted from DEA Form-6 Report of Investigation titled Acquisition of Exhibit 2
by CS-(redacted) and CS-(redacted) from Aaron Romero in Las Vegas, NM [on 12-08-11] dated 12-09-11 by Special Agent
J ohn Castleberry and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011, DEA Form-7 (Laboratory
Submission Form) dated 12-09-11 regarding Exhibit 2 by Special Agent J ohn R. Castleberry and approved by Group Supervisor
Matthew Mayfield; and DEA Audio Recording Exhibit N-5, File 3 and File 4. The reports and audio recording are available to
the Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated by the
United States and therefore, the reports and audio recordings are in possession of the United States.
31
at approximate Time Mark 12:40.45 of DEA Audio Exhibit N-5, File 3
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48

and other individuals (Theresa Saiz, Patrick Vigil, and others as yet identified or known)
that are addicted to controlled substances.
211. The United States utilized the addiction (with Negligent and Deliberate
Indifference to subsequent physical and emotional harms) to further the investigation
(Operation Smack City) in Las Vegas, New Mexico as well as to stack drug-related charges
against Plaintiff Aaron Romero.
212. Furthermore, at the end of the December 8, 2011, undercover meeting between CS
Cesario and Plaintiff, CS Cesario states to plaintiff, Finders fee, huh?
32

213. In this segment of the conversation, CS Cesario indicates the action of distribution of
Crack Cocaine to Plaintiff Aaron Romero by referring to the amount of Crack Cocaine
(distributed to Plaintiff Aaron Romero) as Finders Fee.
214. In addition, CS Cesario explained to the United States (presumably the controlling
DEA Case Agents J ohn R. Castleberry and Patricia G. Whelan) that we got it goodI
introduced, he gave him his number.He should call him wheneverYeah, and then I
usually give them a little finder fee, so I had to give him a little tiny (inaudible) out of itSo
I am just letting you knowAlrightOkay.
215. In this final segment of the conversation, CS Cesario explains to the United States
that CS Cesario had introduced CS J ason to Plaintiff Aaron Romero for the future purchases of
Crack Cocaine, through Plaintiff Aaron Romero, from other drug trafficking targets in Las
Vegas, New Mexico.

32
DEA Audio Exhibit N-5, File 4,
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49

216. In response, the United States authorized CS Cesario and CS J ason to distribute
Crack Cocaine to Plaintiff Aaron Romero as a broker payment for the procurement of Crack
Cocaine after the fact but in conformity with the narratives outlined herein.
217. More importantly, the United States failed to set a prohibition of this procedure of
providing Crack Cocaine to Plaintiff Aaron Romero and the subsequent alteration and
destruction of the drug evidence (in accordance with DEA Policy and the Attorney Generals
Guidelines Regarding Use of Confidential Informants, fundamental Law Enforcement principles,
and clearly established law at the time as described above).
218. The United States failed to set up a prohibition of allowing the provision of broker
payments by CS J ason and CS Cesario in the undercover operations regarding acquisitions of
controlled substances through Plaintiff Aaron Romero and others (Theresa Saiz, Patrick Vigil,
and others as yet identified or known) during the course of the investigation.
219. Rather, the United States continued to utilize the addiction to Crack Cocaine by
Plaintiff Aaron Romero to further the investigation of drug traffickers in Las Vegas, New
Mexico through distribution of Crack Cocaine to Plaintiff Aaron Romero for his consumption.
220. The United States provided crack cocaine to plaintiff as a broker payment for the
procurement of Crack Cocaine from the drug traffickers and to stack drug related charges
against Plaintiff Aaron Romero (refer to EXHIBIT 1 and Count I above for detailed description
of stacking drug-related charges against Plaintiff Aaron Romero).
221. The United States was aware of Plaintiffs severe addiction to Crack Cocaine at
the time through statements of CS Cesario as well as prior distribution of Crack Cocaine to
Plaintiff Aaron Romero (for consumption) by the United States.
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50

222. The United States authorized CS Cesario and CS J ason to distribute Crack Cocaine
to Plaintiff Aaron Romero as a broker payment for the procurement of Crack Cocaine on
December 8, 2011.
223. As a result, the United States Government Intentionally and Negligently caused
the Emotional Distress to Plaintiff Aaron Romero based on the commission of the Tortious Act
of Negligence against Plaintiff Aaron Romero.
224. These acts were committed by causing the deliberate relapse of Plaintiffs
addiction to Crack Cocaine and the intentional distribution of Crack Cocaine to Plaintiff Aaron
Romero on at least six (6) occasions during the course of the investigation as set forth herein
the Factual Basis.
225. Notably, the weight of the December 8, 2011 Crack Cocaine (DEA Drug Exhibit
2) submitted to the DEA Laboratory for analysis is listed as 2.6 grams (DEA Form-7, Exhibit 2 -
attached as reference).
226. However, the submitted weight of 2.6 grams of Crack Cocaine is in contrast to the
DEA report that indicates CS J ason and CS Cesario purchased ounce of Crack Cocaine from
Aaron Romero (for $200.00) (Page 1, Paragraph 1).
227. Indeed, one-quarter () of an ounce of Crack Cocaine would result in (1 ounce)
28 grams/4 =7 grams of Crack Cocaine rather than the 2.6 grams of Crack Cocaine (less than a
gram) provided to CS J ason and CS Cesario by Aaron Romero - a discrepancy of 4.4 grams of
Crack Cocaine.
228. Consequently, the discrepancy of the weight of the Crack Cocaine depicted as
purchased ounce of Crack Cocaine from Aaron Romero (for $200.00) and the actual weight
of the Crack Cocaine (2.6 grams) submitted to the DEA Laboratory for analysis establishes
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51

corroborative evidence that CS J ason and CS Cesario provided a portion of the Crack Cocaine as
payment to Plaintiff Aaron Romero for his consumption.
229. Most notably, the United States authorized the payment of Crack Cocaine to
Plaintiff Aaron Romero (for consumption by Plaintiff Aaron Romero and in furtherance of the
addiction of Plaintiff Aaron Romero) as indicated in DEA Audio Exhibit N-5.
230. On December 29, 2011, DEA Agent Patricia G. Whelan, DEA Agent Carlos
Bernal-Vega, and DEA Group Supervisor Matthew Mayfield debriefed CS Cesario regarding a
meeting with Plaintiff Aaron Romero on December 28, 2011 in which CS Cesario arranged for
the purchase of Crack Cocaine through Plaintiff Aaron Romero to occur the following day on
December 29, 2011.
231. Notably, during the debriefing, the United States again learned that Plaintiff
Aaron Romero suffered from severe addiction to controlled substances, specifically illustrated in
the Debriefing Report regarding the meeting between Aaron Romero and the CS on 12-28-11.
232. During the debriefing, CS Cesario stated that over Christmas, Ulibarri had left
an unreported amount of crack cocaine with Romero to sell and Romero sold a small amount but
smoked the majority of it
233. The CS advised that Romero gave Ulibarri the S-10 as payment for the cocaine
he smoked.
234. Consequently, CS Cesario informed the United States (again) that Plaintiff Aaron
Romero suffered from an addiction to crack cocaine as evidenced by his consumption of
Ulibarris crack cocaine and the loss of the vehicle (S-10) given as payment to Kenneth Ulibarri
for the amount of crack cocaine consumed by Plaintiff.
33

33
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Debriefing of CS-(redacted) in reference to meeting with Aaron Romero on December 28,
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52

235. Most shockingly, the United States demonstrated the Deliberate Indifference to
the plight and suffering of Plaintiff Aaron Romero caused by the crippling addiction to Crack
Cocaine.
236. The United States was warned time and again regarding Plaintiffs addiction to
Crack Cocaine and the anguish the addiction caused him. And yet, the United States continued
Negligently (and with evident Deliberate Indifference to subsequent physical and emotional
harms) to feed Plaintiffs addiction to Crack Cocaine in order to cause him and other
individuals (Theresa Saiz, Patrick Vigil, and others as yet identified or known) that are
addicted to controlled substances to suffer severe emotional distress (as outlined in Count
II below regarding the Intentional Tort of Intentional Infliction of Emotional Distress).
Importantly, Patrick Vigil and Theresa Saiz are not Plaintiffs or Parties relative to this
Complaint.
237. The United States utilized the addiction to further the investigation
(Operation Smack City) in Las Vegas, New Mexico as well as to stack drug-related charges
against Plaintiff Aaron Romero.
238. On December 29, 2011, CS J ason (referred to as CS-1 in the DEA Report) and CS

2011 dated 01-03-12 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group Supervisor
Matthew Mayfield; Case Number MM-12-0011 - DEA Form-6 Report of Investigation titled Surveillance of
Acquisition of Exhibit 3 by CS-(redacted) and CS- redacted) from Aaron Romero and Ruby Aragon on December
29, 2011 dated 12-30-11 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group Supervisor
Matthew Mayfield; Case Number MM-12-0011 - DEA Form-6 Report of Investigation titled Acquisition of Exhibit
3 by CS-(redacted) and CS-(redacted) from Aaron Romero and Ruby Aragon on December 29, 2011 dated 12-30-
11 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group Supervisor Matthew Mayfield;
Case Number MM-12-0011 - DEA Form-7 (Laboratory Submission Form) dated 12-30-11 regarding Exhibit 3 by
Special Agent J ohn R. Castleberry and approved by Acting Group Supervisor J eff Armijo; and Case Number MM-
12-0011 - DEA Audio Recording Exhibit N-6, File 3. The reports and audio recording are available to the Court
through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated by the
United States and therefore, the reports and audio recordings are in possession of the United States.
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Cesario (referred to as CS-2 in the DEA Report) purchased 14 Rocks/3.6 grams of Crack
Cocaine (DEA Drug Exhibit 3) through Plaintiff Aaron Romero for $200.00 at the residence of
Plaintiff Aaron Romero recorded as DEA Audio Exhibit N-6.
239. In this undercover operation, the United States again demonstrated its
knowledge and belief regarding Plaintiffs addiction to controlled substances based on the
Debriefing of CS Cesario.
240. Despite knowing of Plaintiffs addiction, the United States subsequently
distributed Crack Cocaine to Plaintiff Aaron Romero for his consumption, in furtherance of the
investigation.
241. Most notably, the DEA Report (regarding Acquisition of Exhibit 3) indicates that
CS J ason obtained the Crack Cocaine (DEA Drug Exhibit 3) from Plaintiff Aaron Romero and
CS J ason distributed 1 Rock of Crack Cocaine to Plaintiff Aaron Romero as payment for the
procurement of Crack Cocaine depicted as Once inside the residence, Romero pulled the
baggie with 14 tin foil wrapped balls from his front pant pocket Romero handed the crack
cocaine to CS-1 and asked CS-1 if he was going to get finders feeBoth CS-1 and CS-2
advised that CS-1 provided one of the 14 foil wrapped crack cocaine balls to Romero.
242. Indeed, at approximate Time Mark 13:50.30 of DEA Audio Exhibit N-6,
File 3 of the recording of the undercover purchase of Crack Cocaine by CS-J ason and CS
Cesario from Plaintiff Aaron Romero, (prior to acquisition of the Crack Cocaine from Plaintiff
Aaron Romero) CS J ason described individuals addicted to controlled substances as nice and
healthy, nice and in control, and then you see them two months later and theyre all., and in
reply, CS Cesario completed the sentence of CS J ason by describing Plaintiff Aaron Romero as
looking like Aaron.
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54

243. In response, CS J ason stated, Thats because hes using. In this segment of the
conversation, CS J ason reinforces the knowledge and understanding of the United States
regarding the addiction to controlled substances by Plaintiff Aaron Romero.
244. Moreover, following the undercover meeting between CS Cesario, CS J ason, and
Plaintiff Aaron Romero, CS J ason states to CS Cesario, Is there still a Finders Fee on top?
34

245. In reply, CS Cesario stated, Thats the way it is. CS J ason then stated, Tell
her about the Finders Fee, right and CS Cesario answered, Right.
246. In this segment of the conversation, CS Cesario indicates the action of distribution
of Crack Cocaine to Plaintiff Aaron Romero by referring to the amount of Crack Cocaine
(distributed to Plaintiff Aaron Romero) as Finders Fee and CS J ason explained the act of
distribution of Crack Cocaine to Plaintiff Aaron Romero as payment for the procurement of
Crack Cocaine for the United States (DEA Agent Patricia G. Whelan - referred to as Tell Her).
247. In response, the United States again authorized the DEA Informants to continue to
distribute Crack Cocaine to Plaintiff Aaron Romero (for consumption) as broker payments for
the procurement of Crack Cocaine after the fact but in conformity with the narratives set forth
herein.
248. The United States failed to set a prohibition of this procedure of providing Crack
Cocaine to Plaintiff Aaron Romero.
249. The United States also failed to set a prohibition of the subsequent alteration and
destruction of the drug evidence (in accordance with DEA Policy and the Attorney Generals
Guidelines Regarding Use of Confidential Informants, fundamental Law Enforcement principles,
and clearly established law at the time as described above).

34
at the end of DEA Audio Exhibit N-6, File 3
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55

250. The United States authorized the broker payments by CS J ason and CS Cesario to
plaintiff, in the undercover operations regarding acquisitions of controlled substances through
Plaintiff and others (Theresa Saiz, Patrick Vigil, and others as yet identified or known) during
the course of the investigation.
251. The United States continued to utilize Plaintiffs addiction to Crack Cocaine to
further the investigation of drug traffickers in Las Vegas, New Mexico.
252. The United States distributed Crack Cocaine to Plaintiff Aaron Romero (for
consumption by Plaintiff Aaron Romero) as a broker payment for the procurement of Crack
Cocaine for the purpose of ensnaring the drug traffickers and to stack drug related charges
against Plaintiff Aaron Romero ( EXHIBIT 1).
253. The United States was aware of the severe addiction to Crack Cocaine
by Plaintiff Aaron Romero at the time through statements of CS Cesario and CS J ason as well as
prior distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the United
States.
254. The United States was aware of Plaintiffs addiction preceding the authorization
by the United States for CS Cesario and CS J ason to distribute Crack Cocaine to Plaintiff Aaron
Romero as a broker payment for the procurement of Crack Cocaine on December 29, 2011.
255. On J anuary 6, 2012, CS J ason (referred to CS in the DEA Reports) purchased
ounce of crack cocaine (DEA Drug Exhibit 4) for $450.00 and ounce of heroin (DEA Drug
Exhibit 5) for $350.00 through Plaintiff Aaron Romero from Paul Ulibarri at the residence of
Plaintiff Aaron Romero (recorded as DEA Audio Exhibit N-8).
256. In this undercover operation, the United States again distributed a controlled
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56

substance to Plaintiff Aaron Romero based on CS J asons acquisition of Crack Cocaine (DEA
Drug Exhibit 4) through Plaintiff Aaron Romero from Paul Ulibarri and CS J asons subsequent
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption), as payment for the
procurement of Crack Cocaine.
35

257. Specifically, at approximate Time Mark 13:34.20 of DEA Audio Exhibit N-8,
File 7, CS J ason acquired the Crack Cocaine (DEA Drug Exhibit 4) from Paul Ulibarri through
Plaintiff Aaron Romero and immediately following the transaction, Plaintiff Aaron Romero
stated All good, Bro and CS J ason responded sure.
258. Plaintiff Aaron Romero then asked, Hook me up with a little bit of that and CS
J ason replied, Um okay. Notably, at this point of the audio recording, a rustling of plastic
or other material is clearly audible and a short time later, Plaintiff Aaron Romero states,
Business, business.
259. As a result, the audio recording clearly indicates that Plaintiff Aaron Romero
requested Crack Cocaine from CS J ason and CS J ason distributed Crack Cocaine to Plaintiff
Aaron Romero as payment for the procurement of Crack Cocaine from Paul Ulibarri.
260. Furthermore, during the transaction, Paul Ulibarri informs CS J ason that the

35
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 4 and Exhibit 5 by CS-(redacted) from Aaron Romero and Paul Ulibarri on
J anuary 6, 2012 dated 01-09-12 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group
Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-6 Report of Investigation titled
Surveillance of Acquisition of Exhibit 4 and 5 by CS-(redacted) Aaron Romero and Paul Ulibarri on J anuary 6,
2012 dated 01-06-12 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group Supervisor
Matthew Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 01-09-12 regarding Exhibit 4 and Exhibit 5 by
Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by Group Supervisor Matthew; and Case Number
MM-12-0011 - DEA Audio Recording Exhibit N-8, File 7. The reports and audio recording are available to the
Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated
by the United States and therefore, the reports and audio recordings are in possession of the United States.
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 56 of 175
57

Crack Cocaine (DEA Drug Exhibit 4) weighs 15 net grams by stating, Check it out Carnal
supposed to be 14, its a 15 (approximate Time Mark 13:33.35 of DEA Audio Exhibit N-8,
File 7).
36

261. However, the DEA Laboratory Report regarding DEA Drug Exhibit 4 indicates
the net weight of the Crack Cocaine as 12.5 grams. Consequently, the net weight of the Crack
Cocaine depicted by Paul Ulibarri as 15 referring to 15 grams and the net actual weight of
the Crack Cocaine depicted by the DEA Laboratory as 12.5 grams indicates a difference of
approximately 2.5 grams of Crack Cocaine.
262. As a result, the difference of 2.5 grams of the subject Crack Cocaine, coupled with
the recorded statements of Plaintiff Aaron Romero and CS J ason, establish corroborative
evidence that CS J ason distributed a portion of the Crack Cocaine as payment to Plaintiff Aaron
Romero for his consumption.
263. Overall, the United States again authorized the DEA Informants to continue to
distribute Crack Cocaine to Plaintiff Aaron Romero (for consumption) as a broker payments for
the procurement of Crack Cocaine in conformity with the narratives set forth herein.
264. Preceding authorization by the United States for CS J ason to distribute Crack
Cocaine to Plaintiff Aaron Romero as a broker payment for the procurement of Crack Cocaine
on J anuary 8, 2012, the United States was aware of Plaintiffs severe addiction to Crack Cocaine
at the time through statements of CS Cesario and CS J ason as well as prior distribution of Crack
Cocaine to Plaintiff Aaron Romero (for consumption).
265. On J anuary 12, 2012, CS Cesario (referred to CS in the DEA Reports) purchased

36
NetWeightindicatestheactualweightofthecontrolledsubstance(withoutanypackagingorcontainer).
GrossWeightindicatestheactualweightofthecontrolledsubstancethatincludespackagingoracontainer.
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 57 of 175
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Five (5) Rocks of Crack Cocaine (DEA Drug Exhibit 13) for $100.00 through Plaintiff Aaron
Romero at the residence of Aaron Romero - recorded as DEA Audio Exhibit N-12.
266. In this undercover operation, the United States again distributed a controlled
substance to Plaintiff Aaron Romero based on acquisition of Crack Cocaine (DEA Drug Exhibit
13) through Plaintiff Aaron Romero by CS Cesario and the subsequent distribution of Crack
Cocaine to Plaintiff Aaron Romero (for consumption and furtherance of the addiction) by CS
Cesario as payment for the procurement of Crack Cocaine.
37

267. Specifically, at the end of DEA Audio Exhibit N-12, CS Cesario informs the
United States (DEA Agents) that CS Cesario had acquired the Crack Cocaine (DEA Drug
Exhibit 13) from Plaintiff Aaron Romero by stating, He gave me five of them for a
hundredTheyre pretty fat, too and I gave him one for finders All right.
268. As a result, the United States again authorized the DEA Informants to continue
to distribute Crack Cocaine to Plaintiff Aaron Romero (for consumption) as a broker payments
for the procurement of Crack Cocaine in conformity with the narratives set forth herein.
269. Furthermore, in the DEA Report of Investigation titled Acquisition of Exhibit
13 and N-12 by CS from Aaron Romero on J anuary 12, 2012 dated 01-14-12, DEA Agent J ohn
Castleberry writes, Romero and the CS walked to the front door of Romeros residence and
walked inside. Romero gave the CS 4 crack rocks individually wrapped in tin foil.

37
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 13 and N-12 by CS-(redacted) from Aaron Romero J anuary 12, 2012
dated 01-16-12 by Special Agent John Castleberry and approved by Group Supervisor Matthew Mayfield; Case
Number MM-12-0011 - DEA Form-6 Report of Investigation titled Surveillance of CS Buy from Aaron Romero on
J anuary 12, 2012 dated 01-17-12 by Special Agent David Howell and approved by Group Supervisor Matthew
Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 01-13-12 regarding Exhibit 13 by Special Agent John
Castleberry and approved by Group Supervisor Matthew Mayfield; and Case Number MM-12-0011 - DEA Audio
Exhibit N-12. The reports and audio recording are available to the Court through Counsel for Plaintiff Aaron
Romero. Furthermore, the reports and audio recordings were generated by the United States and therefore, the
reports and audio recordings are in possession of the United States.
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59

270. However, DEA Audio Exhibit N-12 indicates Aaron Romero provided Five (5)
rocks of Crack Cocaine to CS Cesario for $100.00 and in return, CS Cesario distributed a single
(1) rock of Crack Cocaine to Plaintiff Aaron Romero (for consumption) as a broker payment for
the procurement of Crack Cocaine.
271. Additionally, DEA Agent J ohn Castleberry omitted the distribution of Crack
Cocaine to Plaintiff Aaron Romero by CS Cesario in the DEA Report of Investigation and
consequently, DEA Agent J ohn Castleberry misrepresented the credibility of the evidence and
falsely stated the actual amount of Crack Cocaine acquired through Plaintiff Aaron Romero
during the subject undercover transaction as 4 Rocks of Crack Cocaine rather than the actual
amount of Five (5) Rocks of Crack Cocaine obtained through Plaintiff Aaron Romero.
272. As a result, the United States attempted to conceal the overall strategy of
Negligently (with Deliberate Indifference) and intentionally causing continuous emotional
distress to Plaintiff Aaron Romero (through provision of Crack Cocaine to Plaintiff Aaron
Romero for his consumption and in furtherance of the addiction) in order to utilize the addiction
to further the investigation and to stack drug-related charges against Plaintiff Aaron Romero
(EXHIBIT 1).
273. On May 9, 2012, CS Cesario (referred to as CS in the DEA Reports) and DEA
Agent Patricia G. Whelan purchased 7 grams of Crack Cocaine (DEA Drug Exhibit 32) for
$250.00 through Plaintiff Aaron Romero at the residence of Plaintiff Aaron Romero - recorded
as DEA Audio Exhibit N-47.
274. In this undercover operation, the United States again distributed a controlled
substance to Plaintiff Aaron Romero based on acquisition of Crack Cocaine (DEA Drug Exhibit
32) through Plaintiff Aaron Romero by CS Cesario and DEA Agent Patricia G. Whelan and the
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subsequent distribution of Crack Cocaine to Plaintiff Aaron Romero by CS Cesario as payment


for the procurement of Crack Cocaine.
38

275. Specifically, the DEA Report of Investigation regarding Acquisition of Exhibit
32 prepared by DEA Agent Patricia G. Whelan depicts The CS stated Romero grabbed one (1)
of the five (5) bags and handed it to the CSThe CS advised Romero asked for a finders fee
and a cigaretteThe CS said he/she broke off a $20-$30 rock amount which he/she provided to
Romero along with a cigarette.
276. Furthermore, a short time prior to the acquisition of Crack Cocaine (DEA Drug
Exhibit 32) from Plaintiff Aaron Romero, at approximate Time Mark 14.38 of DEA Audio
Exhibit N-47, File 1, CS Cesario (referring to Plaintiff Aaron Romero) stated (to DEA Agent
Patricia G. Whelan), I think hes tweaking, ey and in response, DEA Agent Patricia G. Whelan
stated, Yeah, he doesnt look good.It looks like he lost some weight. In reply, CS Cesario
stated, This dudes a Crack Head.
277. Notably, at the end of the DEA Audio Exhibit N-47, File 1 and immediately after
the acquisition of Crack Cocaine (DEA Drug Exhibit 32) from Plaintiff Aaron Romero, CS
Cesario stated (to DEA Agent Patricia G. Whelan), Fuck no and I broke him off his finders
fee.

38
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 32 by CS-(redacted) and SA Yazzie [Patricia G. Whelan] from Aaron
Romero on May 9, 2012 dated 05-10-12 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by
Group Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-6 Report of Investigation titled
Surveillance of meetings between CS (redacted), SA Yazzie [Patricia G. Whelan], Aaron Romero and Pat Vigil on
May 9, 2012, and the Acquisition of N-47, N-48, and N-49 dated 05-11-12 by Special Agent Kevin Mondragon
and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 05-10-12
regarding Exhibit 32 by Special Agent Patricia Yazzie (Patricia G. Whelan] and approved by Group Supervisor
Matthew Mayfield; and Case Number MM-12-0011 DEA Audio Exhibit N-32. The reports and audio recording
are available to the Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio
recordings were generated by the United States and therefore, the reports and audio recordings are in possession of
the United States.

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61

278. In response, DEA Agent Patricia G. Whelan stated, Okay, does it look like he
and CS Cesario completed or interrupted the sentence of DEA Agent Patricia G. Whelan by
stating, They were smoking, I mean that whole fucking place stunk.They blew it up
(referring to consumption of the Crack Cocaine (provided by CS Cesario) by Plaintiff Aaron
Romero and inferentially, Theresa Saiz).
279. Most disturbingly, the United States again demonstrated the Deliberate
Indifference to the plight and suffering of Plaintiff Aaron Romero caused by the crippling
addiction to Crack Cocaine which in turn, [the relapse of the addiction] was caused
intentionally by the United States and the addiction was furthered purposefully by the United
States through distribution of the Crack Cocaine to Plaintiff Aaron Romero for consumption.
280. Indeed, the remark by DEA Agent Patricia G. Whelan that Yeah, he doesnt look
good.It looks like he lost some weight indicates a particular physical harm of the relapse of
Plaintiffs addiction to Crack Cocaine that was caused by the United States and furthered by the
United States in order to utilize said addiction to expand the investigation in Las Vegas, New
Mexico and to stack drug-related charges against Plaintiff Aaron Romero.
281. Moreover, the United States was warned time and again regarding the addiction to
Crack Cocaine and the anguish and suffering that the addiction caused to Plaintiff Aaron
Romero. And yet, the United States continued Negligently (and with evident Deliberate
Indifference to subsequent physical and emotional harms) to feed the addiction of Crack
Cocaine to Plaintiff Aaron Romero in order to cause severe emotional distress (Intentional
Infliction of Emotional Distress) to Plaintiff Aaron Romero and other individuals (Theresa
Saiz, Patrick Vigil, and others as yet identified or known) that are addicted to controlled
substances in order to utilize their addiction to further the investigation (Operation Smack
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62

City) in Las Vegas, New Mexico as well as to stack drug-related charges against Plaintiff
Aaron Romero.
282. The Negligence (with the aggravated element of recklessness /Reckless
Disregard) of the United States caused factually and proximately the Personal Injury to Plaintiff
Aaron Romero under the Law of the State of New Mexico, specifically,
a. A Special Relationship existed between the United States and Plaintiff Aaron Romero
in the form undercover transactions through Plaintiff Aaron Romero at the direction
of the United States and the distribution of Crack Cocaine to Plaintiff Aaron Romero
by the United States.
b. The United States owed a Duty of Care to Plaintiff Aaron Romero based on the
Special Relationship.
c. A Special Relationship existed between the United States and the DEA
Informants/Confidential Sources (specifically, CS Cesario and CS J ason) in the form
of a contractual agreement for the provision of information and service to the United
States by the DEA Informants/Confidential Sources.
d. The United States owed a Duty of Care to Plaintiff Aaron Romero based on the
Special Relationship between the United States and the DEA Informants/Confidential
Sources.
e. The adverse results of the intentional restart (by the United States) of the addiction to
Crack Cocaine by Plaintiff Aaron Romero and the continued distribution of Crack
Cocaine to Plaintiff Aaron Romero (in furtherance of the addiction) were clearly
Foreseeable and Recognizable to the United States
f. The United States Breached the Duty and Reasonable Standard of Care to protect
Plaintiff Aaron Romero from the deliberate relapse of the addiction to Crack Cocaine
by Plaintiff Aaron Romero and the furtherance of the addiction of Crack Cocaine to
Plaintiff Aaron Romero through continued distribution of Crack Cocaine to Plaintiff
Aaron Romero for consumption (by Plaintiff Aaron Romero).

283. As a result, the United States is liable as a Private Person in the State of New
Mexico for the Personal Injury to Plaintiff Aaron Romero based on Negligence under the Federal
Tort Claims Act.


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63

COUNT II
TORTIOUS ACTS OF INTENTIONAL INFLICTION OF
EMOTIONAL DISTRESS UNDER THE FTCA
AGAINST DEFENDANT UNITED STATES OF AMERICA

284. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
285. Defendant United States is liable to plaintiff under the FTCA (28 U.S.C.
1346(b)) for the tortious act of intentional infliction of emotional distress committed against
Plaintiff that caused personal injury to plaintiff by causing the deliberate relapse of his addiction
to crack cocaine and by distributing crack cocaine to Plaintiff for consumption.
286. The Intentional Tort of Intentional Infliction of Emotional Distress in the State
of New Mexico requires the existence and satisfaction of four (4) elements that include: (1) the
conduct in question was extreme and outrageous, (2) the conduct of the defendant was
intentional or in reckless disregard of the plaintiff, (3) the plaintiffs mental distress was extreme
and severe, and (4) there is a causal connection between the defendants conduct and the
Plaintiffs mental distress. See Wilcox v. Homestake Mining Co., 401 F. Supp. 2d. 1196 (D.N.M.
1998)(applying New Mexico Law) and Baldonado et al. v. El Paso Natural Gas Company, 143
N.M. 297, 176 P.3d 286 (Ct.App. 2006).
287. Additionally, in order to prevail on a claim of Intentional Infliction of Emotional
Distress, under New Mexico Law, plaintiff must show that defendants conduct was extreme and
outrageous, and was done recklessly or with intent to cause severe emotional distress. See
Schuler v. McGraw Hill Companies, Inc., 989 F. Supp. 1377 (D.N.M. 1997).
288. Accordingly, the Claim set forth herein satisfies the four elements of Intentional
Infliction of Emotional Distress required by the State of New Mexico as follows:

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(1) The conduct of the United States to cause Emotional Distress purposefully to Plaintiff
Aaron Romero and to restart deliberately his addiction to Crack Cocaine as well as
the conduct of the United States to continue intentionally to distribute Crack Cocaine
to Plaintiff Aaron Romero (in furtherance of the addiction to Crack Cocaine) to
expand the investigation in Las Vegas, New Mexico was extreme and outrageous

(2) The conduct of the United States to cause Emotional Distress purposefully to Plaintiff
Aaron Romero and to restart deliberately his addiction to Crack Cocaine as well as
the conduct of the United States to continue intentionally to distribute Crack Cocaine
to Plaintiff Aaron Romero (in furtherance of the addiction to Crack Cocaine) to
expand the investigation in Las Vegas, New Mexico was intentional and reckless,
and in in complete disregard for the infliction of severe mental health consequences
(Mental Anguish, Pain, and Suffering) and physical condition effects (Physical
Injury, Pain, and Suffering), as well as damage to familial and intimate
relationships (Loss of Consortium, Loss of Society and Companionship) and the
aggravated addiction consequences (Mental Anguish, Physical Injury, Pain and
Suffering) endured by Plaintiff Aaron Romero

(3) The consequences of the Plaintiff Aaron Romeros mental distress was extreme and
severe that resulted in severe Mental Anguish, Pain, and Suffering as described in
detail in the Factual Background section above

(4) The causal connection between the conduct of the United States Government
(Defendant) and mental distress of Plaintiff Aaron Romero is clear, deliberate, and
demonstrable (as set forth in the Factual Basis section below), specifically the
intentional restoration by the United States of Plaintiffs addiction to Crack Cocaine
and the deliberate continued distribution of Crack Cocaine to Plaintiff Aaron Romero.

289. The United States Government is liable to Plaintiff Aaron Romero for the
Intentional Tort of Intentional Infliction of Emotional Distress committed against Plaintiff
Aaron Romero on at least six (6) occasions - based both on recognition of the Intentional Tort of
Intentional Infliction of Emotional Distress in the State of New Mexico as a Private Person
Liability and satisfaction of the four (4) elements of Intentional Infliction of Emotional
Distress required by the State of New Mexico.
290. More precisely, the FTCA states that Liability is determined by reference to law
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65

of the place where the act or omission occurred.


291. Generally, other factors (General Other Factors) can be considered to gauge the
Conduct of the United States regarding the commission of the Intentional Infliction of
Emotional Distress against Plaintiff Aaron Romero, specifically but not limited to,
(1) The conduct would cause a reasonable person to exclaim Outrageous in response
(i.e. intentional restoration by United States of the addiction to Crack Cocaine by
Plaintiff Aaron Romero and the subsequent continued distribution of Crack Cocaine
to Plaintiff Aaron Romero by the United States)

(2) A pattern of conduct existed (i.e. continued distribution of Crack Cocaine to Plaintiff
Aaron Romero by the United States)

(3) The target of the Intentional Infliction of Emotional Distress was vulnerable and
the executor was aware of the vulnerability [i.e. United States was clearly and
demonstrably aware of the historical addiction to Crack Cocaine by Plaintiff Aaron
Romero and the conduct of the United States resulted in the intentional restoration
(by the United States) of the addiction to Crack Cocaine by Plaintiff Aaron Romero
and the subsequent continued distribution of Crack Cocaine to Plaintiff Aaron
Romero by the United States]

(4) The perpetrator of the Intentional Infliction of Emotional Distress was in a position
of power and/or authority (i.e. the United States was in the position of power and
authority to continue distribution of Crack Cocaine to Plaintiff Aaron Romero and to
maintain the addiction to Crack Cocaine by Plaintiff Aaron Romero). See Wilkinson
v. United States, 564 F.3d 927 (8
th
Cir. 2009)(anguish amplified by BIAs position
of power over landowners)

292. Consequently, Plaintiff Aaron Romero has demonstrated satisfaction of the
General Other Factors relevant to the Intentional Tort of Intentional Infliction of Emotional
Distress, and coupled with establishment that Plaintiff Aaron Romero has satisfied the burden of
proof to demonstrate the Claim set forth herein is allowed under the Waiver of Sovereign
Immunity, the United States Government is liable to Plaintiff Aaron Romero for the Intentional
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Tort of Intentional Infliction of Emotional Distress committed against Plaintiff Aaron Romero
on at least six (6) occasions.
293. From November 2011 through May 2012 [refer to EXHIBIT 1: Grand J ury
Indictment U.S. vs. Aaron Romero (D.N.M. CR-12-1909)], Defendant United States caused the
Personal Injury to Plaintiff Aaron Romero as set forth above, by restarting Plaintiffs addiction
and exploiting said addiction by distributing crack to him on at least six (6) occasions.
294. As a result, pursuant to 28 U.S.C. 1346(b), the United States Government is
liable as a Private Person to Plaintiff Aaron Romero for personal injury or death caused by
the negligent or wrongful act or omission of any employee of the Government while acting
within the scope of his office or employment, under circumstances where the United States, if a
private person, would be liable to the claimant in accordance with the law of the place where the
act or omission occurred.
295. Defendant United States of Americas actions as set forth above were both the
cause in fact and proximate cause of plaintiffs damages and injuries. These damages include
physical pain and suffering and psychological and emotional distress. As a result, the Sum
Certain Monetary Demand is $3,500,000.00 (3.5 million dollars) based on the Claim for Relief
set forth herein under the FTCA based on commission of Tortious Acts of Negligence and the
Intentional Tort of Intentional Infliction of Emotional Distress committed against Plaintiff
Aaron Romero by the United States.
296. Accordingly, as set forth above in Counts I and II, the claims described herein by
Plaintiff Aaron Romero satisfy the required six (6) conditions of the FTCA outlined above in
paragraph 174, specifically,
(1) Plaintiff Aaron Romero is seeking Money Damages in the Sum Certain amount of
$3.500,000.00 (3.5 million dollars)
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67


(2) Plaintiff Aaron Romero has submitted the Claim for Presentment to the United States
set forth herein for Personal Injury caused by the Tortious Acts committed against
Plaintiff Aaron Romero by the United States Government (DEA) on at least six (6)
occasions, specifically the Tortious Act of Negligence and the Intentional Tort of
Intentional Infliction of Emotional Distress. However, the Claim has been deemed
to be a final denial under 28 U.S.C. 2675(a).

(3) The Claim set forth herein by Plaintiff Aaron Romero is based on the Wrongful Acts
(specifically the Tortious Act of Negligence and the Intentional Tort of Intentional
Infliction of Emotional Distress) of Employees of the United States committed
against Plaintiff Aaron Romero on at least six (6) occasions - namely, DEA Special
Agent J ohn R. Castleberry, DEA Special Agent Patricia G. Whelan, Group
Supervisor Matthew B. Mayfield, Assistant Special Agent in Charge Raymond
Keith Brown, and Special Agent in Charge J oseph M. Arabit

(4) The Claim set forth herein by Plaintiff Aaron Romero is based on the Wrongful Acts
(specifically the Tortious Act of Negligence and the Intentional Tort of Intentional
Infliction of Emotional Distress) of Employees of the United States committed
against Plaintiff Aaron Romero on at least six (6) occasions (namely, DEA Special
Agent J ohn R. Castleberry, DEA Special Agent Patricia G. Whelan, Group
Supervisor Matthew B. Mayfield, Assistant Special Agent in Charge Raymond
Keith Brown, and Special Agent in Charge J oseph M. Arabit) while the
employees were acting within the scope of his or her office or employment
during the course of the investigation in Las Vegas, New Mexico from November
2011 through August 2012. 28 U.S.C. 1346(b)(I), 2672, 2675, and 2679.

(5) The Claim set forth herein by Plaintiff Aaron Romero is based on the Wrongful Acts
(specifically the Tortious Act of Negligence and the Intentional Tort of Intentional
Infliction of Emotional Distress) committed against Plaintiff Aaron Romero. The
Tortious Act of Negligence and the Intentional Tort of Intentional Infliction of
Emotional Distress are both recognized as a liability of Private Persons (Private
Person Liability) and accordingly, the United States Government is liable as a
Private Person to Plaintiff Aaron Romero for the Tortious Act of Negligence and
the Intentional Tort of Intentional Infliction of Emotional Distress committed
against Plaintiff Aaron Romero on at least six (6) occasions.

(6) The Claim set forth herein by Plaintiff Aaron Romero demonstrates clearly that the
Tortious Act of Negligence and the Intentional Tort of Intentional Infliction of
Emotional Distress are both recognized under the Law of the State of New Mexico
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68

as Tortious Acts and as a liability of Private Persons (Private Person Liability). As a


result, the United States Government is liable as a Private Person in the State of
New Mexico to Plaintiff Aaron Romero in accordance with the law of the place
where the Act or Omission occurred (referring to Law of the State) for the Tortious
Act of Negligence and the Intentional Tort of Intentional Infliction of Emotional
Distress committed against Plaintiff Aaron Romero on at least six (6) occasions.

THE DISCRETIONARY FUNCTION EXCEPTION AND
DUE CARE CLAUSE DO NOT APPLY


297. Plaintiff incorporates all of the preceding paragraphs as though fully set forth herein.
298. 28 U.S.C. 2680(a) sets forth an Exception under the FTCA known as the
Discretionary Function and/or the Due Care Clause that reads as follows:
(a) Any claim based upon an act or omission of an employee of the Government,
exercising due care, in the execution of a statute or regulation, whether or not such statute
or regulation be valid, or based upon the exercise or performance or the failure to
exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused.

299. Plaintiff Aaron Romero bears the burden of proof to demonstrate the Claim set
forth herein is allowed under the Waiver of Sovereign Immunity established by the FTCA but
the United States bears the ultimate burden of proving the applicability of the Discretionary
Function Exception (28 U.S.C. 2680(a) of the FTCA to the Claim set forth herein. See
Green V. U.S., 630 F.3d 1245 (9
th
Cir. 2011)(Plaintiff in action under FTCA has the burden of
showing that there are genuine issues of material fact as to whether the discretionary function
exception should apply, but the Government bears the ultimate burden of establishing that the
exceptions applies); Fothergill v. United States, 566 F.3d 248 (1
st
Cir. 2009); Cestonaro v.
United States, 211 F.3d 749 (3
rd
Cir. 2000), Prescott v. United States, 973 F.3d 676, 701-702 (9
th

Cir. 1992); Faber v. United States, 56 F.3d 1122, 1124 (9
th
Cir. 1995).
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300. In essence, the Discretionary Function Exception exempts application of the


Waiver of Sovereign Immunity regarding the United States under the FTCA meaning the
United States is immune from liability from Claims based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty [28 U.S.C. 2680(a)]. As
such, the Discretionary Function Exception is to prevent judicial, second guessing of legislative
and administrative decisions grounded in social, economic, and political policy through the
medium of an action in tort. the exception protects only governmental actions and decisions
based on considerations of public policy. See Gaubert v. United States, 499 U.S. 315, 322-323
(1991)(quoting United States v. Varig Airlines, 467 U.S. 797, 813 (1984) and Berkovitz v. United
States, 486 U.S. 531 (1988)).
301. However, when the governments action is contrary to established governmental
policy, as expressed or implied by statute, regulation, or agency guidelines, the no discretionary
function can apply. See 499 U.S. at 324.
302. More importantly, when federal investigations go so far afield from established
policy and lawful authority as to endanger citizens rights and safety, discretionary immunity
unquestionably does not apply. See Birnbaum v. United States, 588 F.2d. 319, 330-333 (2d Cir.
1978)(stating that CIAs opening of private citizens letters was not a discretionary act entitled to
immunity); Glickman v. United States, 626 F. Supp. 171, 175 (S.D.N.Y. 1985)(holding that CIA
operation involving surreptitious drugging of citizen with LSD was of such serious and
malevolent nature as to be beyond any reasonable discretion on the part of a Government
agency).
303. Accordingly, analysis of the Discretionary Function set forth in 28 U.S.C.
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2680(a) is based on a Two-Prong Test to determine the applicability of the Discretionary


Function Exception, and in the event both prongs are satisfied, the Discretionary Function
Exemption is applied and the Court of Venue will lack subject matter J urisdiction. See U.S.
Aviation Underwriters, Inc. v. United States, 562 F.3d 1297, 1299 (11
th
Cir. 2009).
304. The First Prong determines whether or not the challenged acts are discretionary
in nature- meaning whether or not the acts involve an element judgment or choice. See
Gaubert v. United States, 499 U.S. 315, 322 (1991).
305. However, the First Prong is not satisfied if the Federal statute, regulation, or
policy specifically prescribes a course of action for an employee to follow. See OSI v. United
States, 285 F. 3d 947, 952 (11
th
Cir. 2002)(quoting Berkowitz v. United States, 486 U.S. 531, 534
(1988))(when statutes, policy, or mandatory regulations dictate the actions of employees, there
is not discretion to deviate from the prescribed course of action and the exception does not
apply).
306. In the event the First Prong is satisfied and the challenged act involves
discretion or choice, the Second Prong is then applied.
307. The Second Prong determines whether or not the decision is subject to
considerations of public policy meaning the Discretionary Function Exception protects only
governmental actions and decisions based on considerations of public policy. See 499 U.S. at
323.
308. More precisely, the focus of the inquiry is not on the Agents subjective intent in
exercising the discretion conferred by statute or regulation, but on the nature of the actions taken
and on whether they are susceptible to policy analysis. See 499 U.S. at 325.
309. In addition, in the event the subject decision could objectively be based on policy
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71

grounds within the discretion afforded to the decision-maker, then the presumption is the act
was grounded in policy whenever that discretion is employed. See 285 F.3d at 951.
310. Furthermore, analysis of the Due Care Clause exception set forth in
28 U.S.C. 2680(a) is based on two questions or steps: The first question is whether or not the
challenged act set forth in the Claim is prescribed specifically by Federal Law or Regulation.
311. In the event the answer is in the affirmative, the second question is then directed at
the Claim to determine whether or not the government employee(s) exercised Due Care in
implementation and execution of the challenged act - and again, in the event the answer is in the
affirmative, then the United States Government is immune from the Claim. See Welch v. United
States, 409 F.3d 646 (4
th
Cir. 2005); Crumpton v. Stone, 59 F.3d 1400, 1403 (D.C Cir.
1995)(citing Gaubert v. United States, 499 U.S. 315, 322 (1991)).
39

312. However, as it relates to both the Discretionary Function Exception and the Due
Care Clause, the United States Government is not authorized by Federal Statute, Regulation, or
Policy, whether exercising Due Care or not, to commit the Intentional Tort of Intentional
Infliction of Emotional Distress against citizens, residents, or non-residents of the United States
and therefore, commission of the Intentional Tort of Intentional Infliction of Emotional
Distress by employees of the United States Government is not a Discretionary Function or duty
on the part of a federal agency or an employee.
313. As a result, the United States Government is not immune from liability under 28
U.S.C. 2680(a).

39
Federal Law rather than State Law determines whether or not the government employee exercised Due Care in the execution
of the Federal Statute, Regulation, or Policy. See Hydrogen Technology Corp. v. United States, 831 F.2d 1155 (1
st
Cir. 1987),
cert. denied, 486 U.S. 102 (1988).
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72

314. Furthermore, the provision of controlled substances to individuals by employees


of the United States, Drug Enforcement Administration (namely, DEA Special Agent J ohn R.
Castleberry, DEA Special Agent Patricia G. Whelan, DEA Group Supervisor Matthew B.
Mayfield, Assistant Special Agent in Charge Raymond Keith Brown, and Special Agent in
Charge J oseph M. Arabit) is a clear breach of DEA Policy, specifically, DEA Manual, Appendix
B, Section III Undercover Operations, subsection D (DEA may furnish an item necessary to
the commission of an offense other than a controlled substance) and subsection E.
315. Moreover, the provision of controlled substances to individuals by employees of
the United States, Drug Enforcement Administration (namely, DEA Special Agent J ohn R.
Castleberry, DEA Special Agent Patricia G. Whelan, DEA Group Supervisor Matthew B.
Mayfield, Assistant Special Agent in Charge Raymond Keith Brown, and Special Agent in
Charge J oseph M. Arabit) is a clear breach of the controlling Attorney Generals Guidelines
Regarding the Use of Confidential Informants, specifically Section I. General Provisions: (E)
Duty of Candor and Section III. Responsibilities Regarding Registered Confidential Informants:
(C) Authorization of Otherwise Illegal Activity, (1) General Provisions: (a) and (b)(ii), (2)
Authorization: (a)(i)(ii), and (4) Instructions: (a)(i) and (a)(iii)(B).
40

40
The Attorney Generals Guidelines Regarding Use of Confidential Informants, Section I. General Provisions: E -
Duty of Candor states, Employees of the entities to which these Guidelines apply have a duty of candor in the
discharge of their responsibilities pursuant to these Guidelines. However, as it relates to use of the Confidential
Informants by the employees of the United States (named herein) [specifically, Drug Enforcement
Administration: a Department of J ustice Law Enforcement Agency (J LEA) as defined by Section I. General
Provisions: (B) Definitions, (1)] regarding distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption), the employees negligently and willfully failed to follow the Duty of Candor requirements of the
Attorney Generals Guidelines. In particular, the employees failed to follow Section III. Responsibilities
Regarding Registered Confidential Informants: (C) Authorization of Otherwise Illegal Activity, (1) General
Provisions: (a) which states, A J LEA shall not authorize a CI to engage in any activity that otherwise would
constitute a misdemeanor or felony under Federal, State, or Local law if engaged in by a person acting without
authorization, except as provided in the Authorization Provisions in paragraph III(C)(2) (Authorization). In turn,
paragraph III(C)(2), Authorization (a)(i) and (ii) state, Tier 1 Otherwise Illegal Activity must be authorized in
advance and in writing for a specified period, not to exceed 90 days, by a J LEAs Special Agent in Charge (or the
equivalent); and the appropriate Chief Federal Prosecutor - and (b)(ii) which states, A JLEA is never permitted to
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316. Therefore, the Negligent Acts and Omissions of the United States regarding the
distribution of Crack Cocaine to Plaintiff Aaron Romero by employees of the United States

authorize a CI to participate in an act that constitutes obstruction of justice (e.g. perjury, witness tampering, witness
intimidation, entrapment, or the fabrication, alteration, or destruction of evidence). In contrast, the employees of
the United States (named herein) violated the Attorney Generals Guidelines through failure to obtain written
authorization from the Chief Federal Prosecutor at the United States Attorneys Office in New Mexico (defined as
the United States Attorney under the Guidelines, I. General Provisions: B Definitions, (5) Chief Federal
Prosecutor is the Head of the Federal Prosecuting Office) in order to allow distribution of Crack Cocaine to Plaintiff
Aaron Romero and others (for consumption) by the DEA Informants on numerous occasions in accordance with
Tier 1 Otherwise Illegal Activity. Moreover, the employees (named herein) authorized the DEA Informants to
commit the alteration and destruction of evidence through removal of portions of Crack Cocaine from purchased
drug exhibits (purchased from other drug trafficking targets) for distribution to Plaintiff Aaron Romero for
consumption effectively altering and destroying the drug exhibit evidence. Notably, the relevant Tier 1 Otherwise
Illegal Activity is defined in the Guidelines, General Provisions: Definitions, (10)(a)(b)(v) and (vi) as a
Confidential Informant providing to any person (other than a J LEA agent) any item, service, or expertise that is
necessary for the commission of a Federal, State, or Local offense, which the person otherwise would have difficulty
obtaining and any activity that would constitute a misdemeanor or felony under Federal, State, or Local law if
engaged in by a person acting without authorization that involves a Confidential Informant providing to any person
(other than a J LEA agent) any quantity of a controlled substance, with little or no expectation of its recovery by the
J LEA. Clearly, Plaintiff Aaron Romero relied unwittingly upon the United States to obtain Crack Cocaine for
consumption in furtherance of his addiction. Indeed, as noted in the Background of Plaintiff Aaron Romero section
below, Plaintiff Aaron Romero was unable to obtain Crack Cocaine for consumption without the involvement of
DEA Informant CS Cesario indicating CS Cesario satisfied the Attorney Generals Guidelines, Tier1Otherwise
Illegal Activity (10)(a)(b)(v) a Confidential Informant providing to any person (other than a J LEA agent) any item,
service, or expertise that is necessary for the commission of a Federal, State, or Local offense, which the person
otherwise would have difficulty obtaining. Furthermore, CS Cesario satisfied the Attorney Generals Guidelines,
Tier 1 Otherwise Illegal Activity (10)(a)(b)(vi) any activity that would constitute a misdemeanor or felony under
Federal, State, or Local law if engaged in by a person acting without authorization that involves a Confidential
Informant providing to any person (other than a J LEA agent) any quantity of a controlled substance, with little or no
expectation of its recovery by the J LEA in the sense the provision of the Crack Cocaine to Plaintiff Aaron Romero
for consumption would clearly result in little or no expectation of its recovery by the J LEA. In other words, the
employees of the United States (named herein) violated the Attorney Generals Guidelines through failure to obtain
written authorization from the Chief Federal Prosecutor at the United States Attorneys Office in New Mexico in
order to allow distribution of Crack Cocaine to Plaintiff Aaron Romero and others (for consumption) by the DEA
Informants on numerous occasions in accordance with Tier 1 Otherwise Illegal Activity requirement as evidenced
by the dismissal of the Indictment against Plaintiff Aaron Romero by the United States Attorneys Office based on
the Gross Misconduct regarding distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the
employees (named herein) of the United States. Lastly, the employees of the United States (named herein) violated
the Attorney Generals Guidelines through failure to instruct the DEA Informants not to engage in the alteration
or destruction of evidence in accordance with Section III. (C) Authorization of Otherwise Illegal Activity:
(4)(iii)(B) Instructions which states, at least one agent of the J LEA, along with one additional agent or other law
enforcement official present as a witness, shall review with the CI written instructions that state, at a minimum, that
under no circumstances may a CI participate in an act that constitutes obstruction of justice (e.g. perjury, witness
tampering, witness intimidation, entrapment, or the fabrication, alteration, or destruction of evidence) of the
Attorney Generals Guidelines as evidenced by the dismissal of the Indictment against Plaintiff Aaron Romero by
the United States Attorneys Office based on the Gross Misconduct regarding distribution of Crack Cocaine to
Plaintiff Aaron Romero (for consumption) by the employees (named herein) of the United States that effectively
altered and destroyed the drug exhibit evidence purchased from other drug traffickers.

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74

Government, in violation of DEA Policy and the Attorney Generals Guidelines Regarding the
Use of Confidential Informants, are not together or separately, a Discretionary Function or duty
on the part of a federal agency or an employee whether or not the government employee(s)
exercised Due Care.
317. Indeed, the First Step of the application of Due Care Clause Exception is to
determine whether or not challenged act set forth in this Claim (Complaint) is prescribed
specifically by Federal Law or Regulation.
318. The distribution of Crack Cocaine to Plaintiff Aaron Romero was a clear breach
of DEA Policy (regulation) and the failure of the DEA employees (named herein) to obtain prior
written authorization from the United States Attorney to distribute Crack Cocaine to Plaintiff
Aaron Romero (to include authorization by the DEA employees to alter and destroy evidence by
the DEA Informants) was a clear breach of the Attorney Generals Guidelines Regarding the Use
of Confidential Informants (regulation).
319. Undeniably, the employees of the United States (named herein) did not exercise
Due Care in following the prescribed regulations of DEA Policy and the Attorney Generals
Guidelines Regarding Use of Confidential Informants.
320. As a result, the Discretionary Function Exception and Due Care Clause Exception
do not apply and consequently, the United States Government is not immune from liability under
28 U.S.C. 2680(a) for the Tortious Act of Negligence regarding the distribution of Crack
Cocaine to Plaintiff Aaron Romero. Therefore, the Court has Subject Matter J urisdiction
regarding the FTCA Claim set forth herein.
321. Accordingly, Plaintiff Aaron Romero has satisfied the burden of proof to
demonstrate the Claims set forth herein are allowed under the Waiver of Sovereign Immunity
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75

and the United States Government is liable to Plaintiff Aaron Romero under the FTCA for the
Tortious Act of Negligence and the Intentional Tort of Intentional Infliction of Emotional
Distress committed against Plaintiff Aaron Romero on at least six (6) occasions in Las Vegas,
New Mexico.
THE INTENTIONAL TORT EXCEPTION DOES NOT APPLY
322. 28 U.S.C. 2680(h) sets forth another Exception to the FTCA regarding
Intentional and Willful Torts that includes a Proviso for Federal Law Enforcement and
Investigative Officers/Agents of the United States. The Exception of Intentional and Willful
Torts (Intentional Tort Exception) is depicted as:
The provisions of this chapter and section 1346(b) of this Title 28 USC 1346(b) shall
not apply to: (h) Any claim arising out of assault, battery, false imprisonment, false
arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit,
or interference with contract rights: Provided that, with regard to acts or omissions of
investigative or law enforcement officers of the United States government, the
provisions of this chapter and 1346(b) of this Title 28 USC 1346(b) shall apply to any
claim arising out of assault, battery, false imprisonment, false arrest, abuse of process or
malicious prosecution. For the purpose of this subsection, investigative or law
enforcement officer means any officer of the United States who is empowered by law to
execute searches, to seize evidence, or to make arrests for violations of Federal Law.

323. Importantly, as it relates to the Law Enforcement Proviso of 28 U.S.C. 2680(h),
in Millbrook v. United States, ---U.S.---, 133 S.Ct. 1441 (2013), the Supreme Court held the law
enforcement proviso extends to law enforcement officers acts or omissions that arise within the
scope of their employment, regardless of whether the officers are engaged in investigative or law
enforcement activity, or executing a search, seizing evidence, or making an arrest and nothing
in 2680(h)s text supports further limiting the proviso to conduct arising out of searches,
seizures of evidence, or arrests.
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324. Consequently, the Law Enforcement Proviso of 28 U.S.C. 2680(h) extends to


any claim arising out of assault, battery, false imprisonment, false arrest, abuse of process or
malicious prosecution by a Federal Law Enforcement Officer whether or not the Intentional Tort
was committed during the process of executing a search, seizing evidence, or making an arrest
and as a result, relevant claims are not barred from the FTCA and the United States is subject to
liability under the Waiver of Sovereign Immunity.
41

325. Notably, the claim of the Intentional Tort of Intentional Infliction of Emotional
Distress committed against Plaintiff Aaron Romero by the United States Government set forth
herein is not listed in the Exceptions to the FTCA [28 U.S.C. 2680(h)] regarding Intentional
and Willful Torts (Intentional Tort Exception) and therefore, the United States Government is
not immune from liability under the Intentional Tort Exception [28 U.S.C. 2680(h)].
326. In essence, Section 2680(h) only applies to listed Intentional Torts within Section
2680(h) and does not bar Claims based on other Intentional Torts such as but not limited to,
Trespass, see Ira S. Bushey & Sons, Inc v. United States, 276 F. Supp. 518 , 526 (E.D.N.Y.
1967)]; affirmed, 398 F2d. 167 (2
nd
Cir. 1968)]; Conversion, see Preston v. United States, 596
F.2d 232, 239-240 (7
th
Cir. 1979)]; Invasion of Privacy and Trespass, see Birnbaum v. United
States, 588 F.2d 319, 328 (2
nd
Cir. 1978)(proclaiming the torts of trespass and invasion of
privacy do not fall within the exception of 2680(h)), and most applicable to the Claim set forth
herein, Intentional Infliction of Emotional Distress. See Truman v. United States, 26 F.3d 592
(5
th
Cir. 1994); Gross v. United States, 676 F.2d 295, 298 (8
th
Cir. 1982); Cruikshank v. United

41
Similarlybutexpandedmorebroadly,intheStateofNewMexico,theimmunitygrantedtoemployeesoftheState
ofNewMexico(pursuanttoSubsectionAofSection4144NMSA1978)doesnotapplytoliabilityforpersonal
injury,bodilyinjury,wrongfuldeathorpropertydamageresultingassault,battery,falseimprisonment,falsearrest,
maliciousprosecution,abuseofprocess,libel,slander,defamationofcharacter,violationofpropertyrightsor
deprivationofanyrights,privilegesorimmunitiessecuredbytheconstitutionandlawsoftheUnitedStatesorNew
Mexicowhencausedbylawenforcementwhileactingwithinthescopeoftheirduties.
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77

States, 431 F. Supp. 1355, 1360 (D. Haw. 1977); Limone v. United States, 579 F.3d 79 (1
st
Cir.
2009).
327. Consequently, the United States Government is not immune from liability under
the Intentional Tort Exception and the United States Government is liable to Plaintiff Aaron
Romero for the Intentional Tort of Intentional Infliction of Emotional Distress committed
against Plaintiff Aaron Romero on at least six (6) occasions. It is also important to note that the
Tortious Act of Negligence is not considered an Intentional Tort in the State of New Mexico or
in any jurisdiction. Therefore, the Intentional Tort Exception does not apply to the Tortious
Act of Negligence and the United States Government is not immune from liability under the
Intentional Tort Exception.
COUNT III-
SUBSTANTIVE DUE PROCESS CLAIM
TO BE FREE OF BODILY HARM, UNDER BIVENS
AGAINST DEFENDANT JOHN R. CASTLEBERRY

328. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
329. This cause of action is brought by plaintiff in his individual and personal capacity
against defendant Castleberry for deprivation of Plaintiffs constitutional rights to be free of
bodily harm under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
330. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest in their own bodily security from violation by federal
government action. Defendant Castleberry violated Plaintiffs constitutionally protected liberty
interest in bodily security by knowingly causing the deliberate relapse of Plaintiffs crack
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cocaine addiction and the continued intentional distribution of crack cocaine to plaintiff. Indeed,
the affirmative acts of Defendant Castleberry caused severe emotional and physical harm to
Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been
exposed).
331. A Bivens claim is filed against Federal officials in the actors personal capacity
(rather than official capacity) and therefore, the claim is not considered an action against the
United States and subsequently barred under Sovereign Immunity, see Nuclear Transport &
Storage, Inc. v. U.S. Through Dept. of Energy, 703 F. Supp. 660 (E.D. Tenn. 1988), order affd,
890 F.2d 1348 (6
th
Cir. 1989). Also see Pleasant v. Lovell, 876 F.2d 787 (10
th
Cir.
1989)(sovereign immunity does not apply to a Bivens action against a Federal official in his or
her individual capacity); Laury v Greenfield, 87 F. Supp. 2d 1210 (D. Kan. 2000)(holding that
Federal officials could be liable in their individual capacities but not in their official capacities)
332. In a Bivens action, the Plaintiff must demonstrate an illegal or inappropriate
conduct of a Federal official or agent that violates a clearly established constitutional right
(refer to Liability under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics
Section below regarding Clearly Established Constitutional Rights), see Davis v. Passman, 442
U.S. 228, 99 S. Ct. 2264, 60 L. Ed. 2d 846 (1979); Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388, 91 S. Ct. 1999, 29 L. Ed. 2d 619 (1971); Jacob v.
Curt, 721 F. Supp. 1536 (D.R.I. 1989), judgment affd, 898 F.2d 838 (1
st
Cir. 1990); Deutsch v.
Federal Bureau of Prisons, 737 F. Supp. 261 (S.D.N.Y. 1990), affd, 930 F.2d 909 (2
nd
Cir.
1991); Patterson v. F.B.I., 705 F. Supp. 1033 (D.N.J . 1989), judgment affd, 893 F.2d 595 (3
rd

Cir. 1990); and Cameron v. I.R.S., 773 F.2d 126 (7
th
Cir. 1985).
42

42
It is important to note the Federal Court recognized relationship between Bivens actions and the Federal Civil
Rights Act, 42 U.S.C.A. 1983, specifically, the Supreme Court has concluded the Constitutional Torts that are
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333. Notably, a Bivens claim is not limited to Constitutional Torts under the Fourth
Amendment (which formed the basis of the Supreme Court decision in Bivens) rather Federal
courts have also permitted Bivens claims for violations of the First Amendment, Fifth
Amendment, Sixth Amendment, and Eighth Amendment to the United States Constitution. See
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1948 (2009)(assuming that a First Amendment
claim is actionable under Bivens); Hartman v. Moore, 547 U.S. 250 (2006) (viability of Bivens
claims under the First Amendment); Hill v. Lappin, 630 F.3d 468 (6
th
Cir. 2010); Kenna v. U.S.
Depart. of Justice, 727 F. Supp. 64 (D.N.H. 1989); Allen v. Scribner, 812 F.2d 426 (9
th
Cir.
1987), opinion amended, 828 F.2d 1445 (9
th
Cir. 1987); Bush v. Lucas, 462 U.S. 367 (1983)(for
First Amendment Bivens claims); see also Davis v. Passman, 442 U.S. 228, 99 S. Ct. 2264, 60 L.
Ed. 2d 846 (1979); Morales v. Ramirez, 906 F.2d 784 (1
st
Cir. 1990); Cale v. Johnson, 861 F.2d
943 (6
th
Cir. 1988)(for Bivens Substantive Due Process claims under the Fifth Amendment.
334. In addition to the conduct already described herein, the Defendant (J ohn R.
Castleberry) who acted under the color of Federal Law and is liable in his individual capacity
caused severe harm to Plaintiff Aaron Romero in the form of Constitutional Torts/Violations by
causing the deliberate relapse of Plaintiffs addiction to Crack Cocaine, in order to utilize that
addiction to further the investigation into other drug traffickers in Las Vegas, New Mexico as
part of Operation Smack City.
335. More specifically, on November 30, 2011, CS J ason (referred to as CS-1 in the
DEA Report) and CS Cesario (referred to as CS-2 in the DEA Report) purchased ounce of

actionable under 42 U.S.C.A. 1983 are of no greater magnitude than those for which Federal officials and agents
may be responsible under Bivens, Federal officials should enjoy no greater zone of protection when they violate
Federal Constitutional rules than State officials do when they violate the same rules, and a difference does not exist
between 42 U.S.C.A. 1983 and Bivens actions in their application of qualified and absolute immunity, see Butz
v. Economou, 438, U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978) and Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct.
1683, 40 L. Ed. 2d 90 (1974). Most notably, the availability of Punitive Damages in 1983 actions has been
extended to Bivens actions, see Ramirez v. Webb, 719 F. Supp. 610 (W.D. Mich. 1989).
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Crack Cocaine (DEA Drug Exhibit 1) through Plaintiff Aaron Romero for $200.00 at the
residence of Plaintiff Aaron Romero recorded as DEA Audio Exhibit N-3, File 2. In this
undercover operation, Defendant Castleberry demonstrated his knowledge and belief regarding
the addiction to Crack Cocaine by Plaintiff Aaron Romero and Defendant Castleberry
subsequently caused the distribution of Crack Cocaine to Plaintiff Aaron Romero for
consumption (by Plaintiff Aaron Romero).
336. Most notably, at approximate Time Mark 13:23.22 of DEA Audio Exhibit N-3,
File 2 of the recording of the undercover purchase of Crack Cocaine by CS J ason and CS Cesario
through Plaintiff Aaron Romero indicates Defendant J ohn R. Castleberry (prior to the acquisition
of Crack Cocaine through Plaintiff Aaron Romero) authorized CS J ason and CS Cesario to
distribute Crack Cocaine to Plaintiff Aaron Romero as a broker payment for the procurement of
Crack Cocaine.
337. Defendant Castleberry, acting under the color of Federal Law as employee of the
United States, said, [h]es waiting to get a little, all right, thats fine and CS Cesario
responded, [h]es going to skim off the sack and fucking go smoke it. In response,
Defendant Castleberry (in the background) stated again, Thats fine. In this November 30,
2011, conversation, CS Cesario indicates that Plaintiff Aaron Romero will remove an
unidentified portion of the Crack Cocaine for consumption (by Plaintiff Aaron Romero) as
payment for the procurement of the Crack Cocaine for the DEA Informants (and the
Defendants).
338. In response, Defendant J ohn Castleberry authorized the distribution of Crack
Cocaine for consumption by Plaintiff Aaron Romero. More importantly, Defendants Castleberry
failed to set a prohibition of this procedure of providing Crack Cocaine to Plaintiff Aaron
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Romero (in accordance with DEA Policy and the Attorney Generals Guidelines Regarding Use
of Confidential Informants, fundamental Law Enforcement principles, and clearly established
law at the time as described above).
339. Rather, Defendant Castleberry continued to utilize Plaintiffs addiction to Crack
Cocaine to further the investigation of drug traffickers in Las Vegas, New Mexico through
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff Aaron
Romero) as a broker payment for the procurement of Crack Cocaine from other drug traffickers
and to stack drug related charges against Plaintiff Aaron Romero.
340. Moreover, Defendant Castleberry was aware of the severe addiction to Crack
Cocaine by Plaintiff Aaron Romero through statements of CS Cesario and inferentially, local law
enforcement officers in Las Vegas prior to Castleberrys authorization to CS Cesario to
distribute Crack Cocaine to Plaintiff Aaron Romero as a broker payment for the procurement of
Crack Cocaine on November 30, 2011.
341. As a result, Defendant Castleberry caused the severe emotional and physical
harm to Plaintiff Aaron Romero based on the commission of Constitutional Torts/Violations
against Plaintiff Aaron Romero, inter alia,
a. through the deliberate relapse of the addiction to Crack Cocaine by Plaintiff
Aaron Romero;
b. the intentional distribution of Crack Cocaine to Plaintiff Aaron Romero on at
least six (6) occasions during the course of the investigation; and
c. the stacking of drug-related charges against Plaintiff Aaron Romero as set
forth in Count IV herein.

342. Finally, as illustrated above in Count I, the weight of the November 30,
2011 Crack Cocaine (DEA Drug Exhibit 1) submitted to the DEA Laboratory for analysis is
listed as 0.9 grams (DEA Drug Exhibit 1). However, the submitted weight of 0.9 grams of
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Crack Cocaine is in contrast to the DEA Report of Investigation that indicates CS J ason and CS
Cesario purchased ounce of Crack Cocaine from Plaintiff Aaron Romero (for $200.00).
343. Indeed, one-quarter () of an ounce of Crack Cocaine would result in (1 ounce)
28 grams/4 =7 grams of Crack Cocaine rather than the 0.9 grams of Crack Cocaine (less than a
gram) provided to CS J ason and CS Cesario by Plaintiff Aaron Romero - a discrepancy of 6.1
grams of Crack Cocaine.
344. Consequently, the discrepancy of the weight of the Crack Cocaine depicted as
purchased ounce of Crack Cocaine from Plaintiff Aaron Romero (for $200.00) and the
actual weight of the Crack Cocaine (0.9 grams) submitted to the DEA Laboratory for analysis
establishes corroborative evidence that CS Jason and CS Cesario distributed a large portion
of the Crack Cocaine (6.1 grams) as payment to Plaintiff Aaron Romero for consumption
(by Plaintiff Aaron Romero)
345. Most notably, Defendant Castleberry authorized the distribution of Crack
Cocaine as payment to Plaintiff Aaron Romero for consumption as indicated in DEA Audio
Recording Exhibit N-3, File 2.
43
It is also important to note, Plaintiff Aaron Romero was
charged in Count 1 of the Indictment (CR-12-1901 EXHIBIT 1) for Distribution of Cocaine
Base within 1,000 Feet of a Schools or Colleges.
346. As a result of Count 1 of the Indictment, the sentence range for Plaintiff Aaron

43
The information and evidence were extracted from DEA Form-6 Report of Investigation titled Acquisition of Exhibit 1
by CS-(redacted) and CS-(redacted) from Aaron Romero in Las Vegas, NM [on 11-30-11] dated 12-01-11 by Special Agent
J ohn Castleberry and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011, DEA Form-7 (Laboratory
Submission Form) dated 12-01-11 regarding Exhibit 1 by Special Agent Patricia Yazzie and approved by Group Supervisor
Matthew Mayfield; and DEA Audio Recording Exhibit N-3, File 2. The reports and audio recording are available to the Court
through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated by the United States
and therefore, the reports and audio recording are in possession of the United States.

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Romero was a Minimum Mandatory term of 1 year of imprisonment for Distribution within
1,000 Feet of a school or university and the sentence range for the underlying offense of
Distribution under 21 U.S.C. 841(a)(1) and (b)(1)(C) would be calculated as twice the
maximum penalty under Federal Law essentially a sentence range of up to 40 years.
347. On December 8, 2011, CS J ason (referred to as CS-1 in the DEA Report) and CS
Cesario (referred to as CS-2 in the DEA Report) purchased ounce of Crack Cocaine (DEA
Drug Exhibit 2) through Plaintiff Aaron Romero for $200.00 at the residence of Plaintiff Aaron
Romero recorded as DEA Audio Exhibit N-5. In this undercover operation, Defendant
Castleberry demonstrated the knowledge and belief regarding the addiction to controlled
substances by Plaintiff Aaron Romero and his girlfriend Theresa Saiz, and the Defendant
subsequently caused the distribution of Crack Cocaine to Plaintiff Aaron Romero for
consumption (by Plaintiff Aaron Romero) in furtherance of the investigation.
44

348. Notably, at approximate Time Mark 12:40.45 of DEA Audio Exhibit N-5,
File 3 of the recording of the December 8, 2011, undercover purchase of Crack Cocaine by CS-
J ason and CS Cesario through Plaintiff Aaron Romero indicates (prior to acquisition of the Crack
Cocaine from Plaintiff Aaron Romero), CS Cesario described Plaintiff Aaron Romero and his
girlfriend Theresa Saiz as, [l]ike I told you, if his chick is there, shes going, shes the smart
onenot him Hes like a dumb motherfucker.
349. In response DEA Agent J ohn Castleberry stated, Hopefully, we can catch it
when theyre both high, smashing on that shit, so well see.

44
The information and evidence were extracted from DEA Form-6 Report of Investigation titled Acquisition of Exhibit 2
by CS-(redacted) and CS-(redacted) from Aaron Romero in Las Vegas, NM [on 12-08-11] dated 12-09-11 by Special Agent
J ohn Castleberry and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011, DEA Form-7 (Laboratory
Submission Form) dated 12-09-11 regarding Exhibit 2 by Special Agent J ohn R. Castleberry and approved by Group Supervisor
Matthew Mayfield; and DEA Audio Recording Exhibit N-5, File 3 and File 4. The reports and audio recording are available to
the Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated by the
United States and therefore, the reports and audio recordings are in possession of the United States.
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350. In this segment of the conversation, CS Cesario explains that Theresa Saiz is
more cautious than Plaintiff Aaron Romero as it relates to activities associated with controlled
substances and in response, Defendant Castlebrry demonstrated his knowledge and belief
regarding the addiction to controlled substances (referred to as both high, both smashing on that
shit) by Plaintiff Aaron Romero and Theresa Saiz by stating, Hopefully, we can catch it when
theyre both high, smashing on that shit, so well see.
351. Most shockingly, the statement by Defendant Castleberry indicates
the calculated umbrella strategy, recklessness and deliberate indifference of the Defendant to use
the Plaintiff and other individuals (Theresa Saiz, Patrick Vigil, and others as yet identified or
known that are addicted to controlled substances) addiction to Crack Cocaine to further the
investigation (Operation Smack City in Las Vegas, New Mexico).
352. Furthermore, during the undercover meeting between CS Cesario and Plaintiff
Aaron Romero, at the end of DEA Audio Exhibit N-5, File 4, CS Cesario states, Finders fee,
huh? to Plaintiff Aaron Romero.
353. In this segment of the conversation, CS Cesario indicates the action of
distribution of Crack Cocaine to Plaintiff Aaron Romero by referring to the amount of Crack
Cocaine (distributed to Plaintiff Aaron Romero) as Finders Fee.
354. Upon information and belief, CS Cesario explained to Defendant Castleberry
that we got it goodI introduced, he gave him his number.He should call him
wheneverYeah, and then I usually give them a little finder fee, so I had to give him a little
tiny (inaudible) out of itSo I am just letting you knowAlrightOkay.
355. In this final segment of the conversation, CS Cesario explains to the Defendants
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that CS Cesario had introduced CS J ason to Plaintiff Aaron Romero for the future purchases of
Crack Cocaine through Plaintiff Aaron Romero from other drug trafficking targets in Las Vegas,
New Mexico.
356. Upon information and belief, in response, Defendant Castleberry authorized CS
Cesario and CS J ason to distribute Crack Cocaine to Plaintiff Aaron Romero as a broker
payment for the procurement of Crack Cocaine after the fact but in conformity with the
narratives herein.
357. More importantly, Defendant Castleberry failed to set a prohibition of this
procedure of providing Crack Cocaine to Plaintiff Aaron Romero and the subsequent alteration
and destruction of the drug evidence (in accordance with DEA Policy and the Attorney Generals
Guidelines Regarding Use of Confidential Informants, fundamental Law Enforcement principles,
and clearly established law at the time as described above) as a broker payment by CS J ason
and CS Cesario in the undercover operations regarding acquisitions of controlled substances
through Plaintiff Aaron Romero and others (Theresa Saiz, Patrick Vigil, and others as yet
identified or known) during the course of the investigation.
358. Rather, Defendant Castleberry continued to utilize Plaintiffs addiction to Crack
Cocaine to further the investigation of drug traffickers in Las Vegas, New Mexico through
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption by Plaintiff Aaron
Romero) as a broker payment for the procurement of Crack Cocaine from other drug traffickers
and to stack drug related charges against Plaintiff Aaron Romero (refer to EXHIBIT 1).
359. Defendant Castleberry was aware of the severe addiction to Crack Cocaine by
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Plaintiff Aaron Romero at the time through statements of CS Cesario and CS J ason as well as
prior distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the
Defendants.
360. Notably, the weight of the December 8, 2011, Crack Cocaine (DEA Drug
Exhibit 2) submitted to the DEA Laboratory for analysis is listed as 2.6 grams (DEA Form-7,
Exhibit 2 - attached as reference).
361. However, the submitted weight of 2.6 grams of Crack Cocaine is in contrast to
the DEA report that indicates CS J ason and CS Cesario purchased ounce of Crack Cocaine
from Aaron Romero (for $200.00) (Page 1, Paragraph 1).
362. Indeed, one-quarter () of an ounce of Crack Cocaine would result in (1 ounce)
28 grams/4 =7 grams of Crack Cocaine rather than the 2.6 grams of Crack Cocaine (less than a
gram) provided to CS J ason and CS Cesario by Aaron Romero - a discrepancy of 4.4 grams of
Crack Cocaine.
363. Consequently, the discrepancy of the weight of the Crack Cocaine depicted as
purchased ounce of Crack Cocaine from Aaron Romero (for $200.00) and the actual weight
of the Crack Cocaine (2.6 grams) submitted to the DEA Laboratory for analysis establishes
corroborative evidence that CS J ason and CS Cesario provided a portion of the Crack Cocaine as
payment to Plaintiff Aaron Romero for consumption (by Plaintiff Aaron Romero)
364. Most notably, Defendant Castleberry authorized the payment of Crack Cocaine to
Plaintiff Aaron Romero (for consumption by Plaintiff Aaron Romero and in furtherance of the
addiction of Plaintiff Aaron Romero) as indicated in DEA Audio Exhibit N-5.
365. Subsequently, the Defendant Castleberry continued to feed Plaintiffs addiction
to Crack Cocaine through distribution of Crack Cocaine to Plaintiff Aaron Romero (for
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87

consumption) by DEA Confidential Informants as broker payment for procurement of Crack


Cocaine and Heroin from other drug traffickers in Las Vegas, New Mexico.
366. As set forth above, defendant Castleberry caused the distribution of crack cocaine
to Plaintiff on at least six occasions essentially, establishing a reliable system in which Plaintiff
Aaron Romero would procure Crack Cocaine from other individuals in exchange for distribution
of Crack Cocaine from the Defendants (through the DEA Confidential Informants) for Plaintiffs
consumption.
367. Defendant Castleberry utilized Plaintiffs addiction to Crack Cocaine by Plaintiff
Aaron Romero to stack drug-related charges against Plaintiff Aaron Romero.
368. Defendant Castleberry caused severe emotional and physical harm to Plaintiff
Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed)
in clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
369. Indeed, the affirmative actions of Defendant Castleberry produced Plaintiffs
relapse of the addiction to Crack Cocaine with reckless and deliberate indifference and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by Defendant Castleberry with reckless and
deliberate indifference shocks the conscience and offends the publics sense of morality and
justice.
370. In addition, on December 29, 2011, CS J ason (referred to as CS-1 in the DEA
Report) and CS Cesario (referred to as CS-2 in the DEA Report) purchased 14 Rocks/3.6
grams of Crack Cocaine (DEA Drug Exhibit 3) through Plaintiff Aaron Romero for $200.00 at
the residence of Plaintiff Aaron Romero recorded as DEA Audio Exhibit N-6.
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371. In this undercover operation, Defendant Castleberry demonstrated his


knowledge and belief regarding the addiction to controlled substances by Plaintiff Aaron Romero
based on the Debriefing of CS Cesario.
372. Most notably, the DEA Report (regarding Acquisition of Exhibit 3) indicates that
CS J ason obtained the Crack Cocaine (DEA Drug Exhibit 3) from Plaintiff Aaron Romero and
CS J ason distributed 1 Rock of Crack Cocaine to Plaintiff Aaron Romero as payment for the
procurement of Crack Cocaine depicted as Once inside the residence, Romero pulled the
baggie with 14 tin foil wrapped balls from his front pant pocket Romero handed the crack
cocaine to CS-1 and asked CS-1 if he was going to get finders feeBoth CS-1 and CS-2
advised that CS-1 provided one of the 14 foil wrapped crack cocaine balls to Romero.
373. Furthermore, at approximate Time Mark 13:50.30 of DEA Audio Exhibit N-6,
File 3 of the recording of the undercover purchase of Crack Cocaine by CS-J ason and CS
Cesario from Plaintiff Aaron Romero indicates (prior to acquisition of the Crack Cocaine from
Plaintiff Aaron Romero) CS J ason describe individuals addicted to controlled substances as nice
and healthy, nice and in control, and then you see them two months later and theyre all., and
in reply, CS Cesario completed the sentence of CS J ason by describing Plaintiff Aaron Romero
as looking like Aaron.
374. On J anuary 12, 2012, CS Cesario (referred to CS in the DEA Reports)
purchased Five (5) Rocks of Crack Cocaine (DEA Drug Exhibit 13) for $100.00 through
Plaintiff Aaron Romero at the residence of Aaron Romero - recorded as DEA Audio Exhibit N-
12.
375. In this undercover operation, Defendant Castleberry caused the distribution of a
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controlled substance to Plaintiff Aaron Romero based on acquisition of Crack Cocaine (DEA
Drug Exhibit 13) through Plaintiff Aaron Romero by CS Cesario and the subsequent distribution
of Crack Cocaine to Plaintiff Aaron Romero (for consumption and furtherance of the addiction)
by CS Cesario as payment for the procurement of Crack Cocaine.
45

376. Specifically, at the end of DEA Audio Exhibit N-12, CS Cesario informs
Defendant Castleberry that CS Cesario had acquired the Crack Cocaine (DEA Drug Exhibit 13)
from Plaintiff Aaron Romero by stating, He gave me five of them for a hundredTheyre
pretty fat, too and I gave him one for finders All right.
377. In the DEA Report of Investigation titled Acquisition of Exhibit 13
and N-12 by CS from Aaron Romero on J anuary 12, 2012 dated 01-14-12, Defendant
Castleberry writes, Romero and the CS walked to the front door of Romeros residence and
walked inside. Romero gave the CS 4 crack rocks individually wrapped in tin foil.
378. However, DEA Audio Exhibit N-12 indicates Aaron Romero provided Five
(5) rocks of Crack Cocaine to CS Cesario for $100.00 and in return, CS Cesario distributed a
single (1) rock of Crack Cocaine to Plaintiff Aaron Romero (for consumption) as a broker
payment for the procurement of Crack Cocaine.
379. Defendant Castleberry omitted the distribution of Crack Cocaine to Plaintiff
Aaron Romero by CS Cesario in the DEA Report of Investigation and consequently, Defendant

45
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 13 and N-12 by CS-(redacted) from Aaron Romero J anuary 12, 2012
dated 01-16-12 by Special Agent John Castleberry and approved by Group Supervisor Matthew Mayfield; Case
Number MM-12-0011 - DEA Form-6 Report of Investigation titled Surveillance of CS Buy from Aaron Romero on
J anuary 12, 2012 dated 01-17-12 by Special Agent David Howell and approved by Group Supervisor Matthew
Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 01-13-12 regarding Exhibit 13 by Special Agent John
Castleberry and approved by Group Supervisor Matthew Mayfield; and Case Number MM-12-0011 - DEA Audio
Exhibit N-12. The reports and audio recording are available to the Court through Counsel for Plaintiff Aaron
Romero. Furthermore, the reports and audio recordings were generated by the United States and therefore, the
reports and audio recordings are in possession of the United States.
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Castleberry misrepresented the credibility of the evidence and falsely stated the actual amount of
Crack Cocaine acquired through Plaintiff Aaron Romero during the subject undercover
transaction as 4 Rocks of Crack Cocaine rather than the actual amount of Five (5) Rocks of
Crack Cocaine obtained through Plaintiff Aaron Romero.
380. As a result, Defendant Castleberry attempted to conceal the overall strategy of
Recklessly (with Deliberate Indifference) and utilizing the addiction to Crack Cocaine by
Plaintiff Aaron Romero in order to further the investigation and to stack drug-related charges
against Plaintiff Aaron Romero (EXHIBIT 1).
381. Defendant Castleberrys actions deprived Plaintiff of his Constitutionally protected
liberty interest in bodily integrity caused him harm.
382. Defendant Castleberrys gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
383. Defendant Castleberrys gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT IV
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
DEPRIVATION OF LIBERTY INTERESTS WITHOUT DUE PROCESS OF
LAW UNDER BIVENS AGAINST DEFENDANT JOHN R. CASTLEBERRY


384. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
385. This claim is brought by plaintiff in his individual and personal capacity against
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defendant Castleberry for deprivation of Plaintiffs constitutional rights to be free from


deprivation of liberty interests without due process of law (or corruption of the processes of law
that shocks the conscience) under the Due Process Clause of the Fifth Amendment to the United
States Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 US 388 (1971).
386. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests
without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government.
46

387. The actions of Defendant Castleberry to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero and the continued and intentional
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in furtherance of
the addiction) by Defendant Castleberry violated Plaintiffs Fifth Amendment Constitutional
right to be free from deprivation of liberty without due process of law as well as shocks the
conscience and offends the publics sense of morality and justice.
388. The affirmative actions of Defendant Castleberry to utilize the addiction to
Crack Cocaine by Plaintiff Aaron Romero in order to stack drug-related charges against

46
The Fifth Amendment to the Constitution establishes that [n]o person shall be deprived of life, liberty, or
property without due process of law under the Fifth Amendment to the United States Constitution. The Due
Process Clause stands as a bar to the Government invoking judicial process to obtain a conviction when its conduct
is outrageous, see United States v. Russell, 411 U.S. 423, 431-32 (1973). And scrutiny by the Courts is centered
exclusively on the Governments actions not the alleged actions of the criminal defendant, see United States v.
Restrepo, 930 F.2d 705, 712 (9
th
Cir. 1991). Accordingly, the United States Attorneys Office in Albuquerque
dismissed the Indictment against Plaintiff Aaron Romero based on scrutiny of the outrageous conduct of the
Defendants - and not based on the actions of Plaintiff Aaron Romero. See also United States v. Gardner, 658 F.
Supp. 1573 (W.D. Penn. 1987)(the undisputed facts spell out outrageous governmental conduct which shocks the
conscience of this Court) citing the Supreme Court decision in Hampton v. United States, 425 U.S. 484, 96 S. Ct.
1646, 48 L.Ed. 2. 113 (1976)(majority of the Court recognized the potential availability of an outrageous police
conduct defense no matter what the defendants criminal disposition, Id. at 497 S. Ct. at 1653).

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Plaintiff (EXHIBIT 1) with reckless and deliberate indifference also shocks the conscience and
is a clear violation of the Fifth Amendment (Right to Due Process Clause).
389. The Constitutional Right of Due Process regarding the substance addiction of
individuals and relevant Government action was clearly established in the Tenth Circuit Court
of Appeals at the time of the violations. See United States v. Harris, 997 F.2d 812 (10 Cir.
1993)(holding that any rule that permits unlimited sales of narcotics to known addicts would
also lack merit. at a certain threshold, the governments conduct would violate due process
and where the evidence shows, however, that law enforcement personnel rely on a known
addiction to carry out multiple transactions with the primary purpose of stacking charges, the
government has engaged in outrageous conduct violative of the defendants due process rights);
see also United States v. Mosley, 965 F. 2d 906 (10
th
Cir. 1992).
390. It is also important to note, in United States v. Valona, 834 F.2d 1334, 1344-1345
(7
th
Cir. 1987), the Seventh Circuit established that the Court should closely examine
government conduct when the government supplies the contraband).
47

391. The Gross Misconduct of Defendant Castleberry in the form of Recklessness,
Conscious Disregard, and Deliberate Indifference to the physical and emotional harm suffered by
Plaintiff Aaron Romero based on the affirmative actions of Defendant Castleberry in the form of
(1) intentionally causing relapse of addiction to Crack Cocaine by Plaintiff Aaron Romero, (2)
the continued distribution of Crack Cocaine to Plaintiff Aaron Romero for consumption and in
furtherance of his addiction, and (3) the subsequent stacking of drug-related charges regarding

47
It is important to note that a particular right may be clearly established based on a trend of relevant case law
which indicates that recognition of the specific right is inevitable, see Cleveland-Purdue v. Brutsche, 881 F.2d 427
(7
th
Cir. 1989)(in absence of controlling precedent court seeks to determine whether there was such clear trend in
case that recognition of right by controlling precedent was merely questions of time, precluding official from
escaping liability by fortuity that court particular jurisdiction had not yet addressed issue).
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Plaintiff Aaron Romero together and separately shock the conscience and distort and
corrupt the processes of law.
392. Defendant Castleberrys actions deprived Plaintiff of his Constitutionally
protected liberty interest in freedom from deprivation of liberty interests without due processes
of law and caused him harm.
393. Defendant Castleberrys gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
394. Defendant Castleberrys gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT V
CLAIM FOR VIOLATION TO PLAINTIFFS FIRST AMENDMENT RIGHT TO
A CONTINUING RELATIONSHIP WITH HIS FAMILY
UNDER BIVENS AGAINST DEFENDANT JOHN R. CASTLEBERRY

395. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
396. This claim is brought by plaintiff in his individual and personal capacity against
defendant Castleberry for deprivation of Plaintiffs constitutional right to a constitutional right to
a relationship with his family under the Due Process Clause of the Fifth Amendment and free
association clause of the First Amendment, pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388 (1971).
397. The Constitution specifically the Fifth and First Amendments protects citizens
liberty interests in familial companionship from violation of federal government action.
398. Defendant Castleberry violated Plaintiffs liberty interest in familial
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94

companionship by knowingly causing plaintiffs relapse of his addiction to crack cocaine,


distributing crack cocaine to plaintiff, and by stacking charges against Plaintiff, as described
herein. Indeed, the affirmative actions of Defendant Castleberry to produce the deliberate
relapse of the addiction to Crack Cocaine by Plaintiff with reckless and deliberate indifference
and the continued and intentional distribution of Crack Cocaine to Plaintiff (for consumption and
in furtherance of the addiction) by Defendant Castleberry with reckless and deliberate
indifference caused the destruction of the familial companionship (family relationships) of
Plaintiff (harm to which Plaintiff otherwise would not have been exposed).
399. Defendant Castleberry knew that by distributing crack cocaine to Plaintiff and
deepening his addiction, plaintiffs familial relationships would be adversely affected as his
family had isolated him.
400. Defendant Castleberrys actions deprived Plaintiff of his Constitutionally
protected liberty interest in familial companionship.
401. Defendant Castleberrys gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
402. Defendant Castleberrys gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

QUALIFIED IMMUNITY DOES NOT APPLY TO DEFENDANT CASTLEBERRY
403. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
404. There are two separate types of immunity available as affirmative defenses
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in Bivens actions that include Absolute Immunity and Qualified Immunity. See Mitchell v.
Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d 411, 2 Fed. R. Serv. 3d 221 (1985), Harlow
v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982), Butz v. Economou, 438
U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978), and Bivens v. Six Unknown Named Agents of
the Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 619 (1971).
405. Absolute Immunity applies to Federal officials that perform specific functions
such as J udges, Prosecutors, Legislators, and the President of the United States provided that
the Officeholders are engaged in traditional activities there are not beyond the scope of their
duties and responsibilities. See Mitchell v. Forsyth, 472 U.S. 511, 105 S. Ct. 2806, 86 L. Ed. 2d
411, 2 Fed. R. Serv. 3d 221 (1985)(noting that a Federal official may have availability of
Qualified Immunity in the absence of Absolute Immunity protection); Butz v. Economou, 438
U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978).
406. Qualified Immunity applies to Federal officials and Agents that perform
discretionary functions as long as the officials or Agents conduct does not violate clearly
established Constitutional Rights of which a reasonable person would have known. See
Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Creighton v.
Anderson, 724 F. Supp. 654 (D. Minn. 1989), judgment affd, 922 F.2d 443 (8
th
Cir. 1990).
48

Importantly, Qualified Immunity is an affirmative defense, see Crawford-El v. Britton, 523 U.S.
574, 586-587 (1998); Gomez v. Toledo, 446 U.S. 635, 640 (1980).
407. Furthermore, the significance of the Qualified Immunity defense is to balance

48
Notably, Federal officials enjoy Absolute Immunity from State Law Tort actions levied against the Federal
officials provided that (1) the alleged State common-law tortious act falls within the officials scope of authority
(also known as the Outer Perimeter of the line of duty) and (2) the Federal official exercised judgment or
discretion in the exercise of his or her official duties that gave rise to the claim, see Westfall v. Erwin, 484 U.S. 292,
108 S. Ct. 580, 98 L. Ed. 2d 619 (1988) and Friedman v. Young, 702 F. Supp. 433 (S.D.N.Y. 1988).

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the following competing values: (1) the importance of damages remedy to protect the rights of
citizens, (2) the need to protect officials who are required to exercise discretion, and (3) the
related interest in encouraging the vigorous exercise of official authority, see Harlow v.
Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982); Butz v. Economou, 438 U.S.
478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978); Scheuer v. Rhodes, 416 U.S., 232, 94 S. Ct. 1683,
40 L. Ed. 2d 90 (1974).
49

408. However, a Plaintiff may recover damages if he can establish that there was a
clear violation of his established Constitutional Rights and the officials acted unreasonably and
contrary to establish law. Ramirez v. U.S., 81 F. Supp. 2d 532 (D.N.J . 2000).
409. The Supreme Court established the 2-Pronged Saucier Test to evaluate a
Qualified Immunity defense to Constitutional Rights claims. The first prong is the
Constitutional Inquiry to determine whether or not (1) when taken in the light most favorable
to the non-moving party, the facts alleged show the officials conduct violated a Constitutional
Right and the objective legal reasonableness of the Defendant Federal officials conduct in
light of the information the Defendant possessed at the time of the alleged violation and (2) the
second inquiry is the Qualified Immunity Inquiry to determine whether or not the
Constitutional Right was clearly established at the time of the violation. See Saucier v.
Katz, 533 U.S. 194, 201 (2001); Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L. Ed.

49
It is important to note that Qualified Immunity is the same regardless of whether the Plaintiff brings the suit as a
Bivens claim or for violation of 1983, see Abreu-Guzman v. Ford, 241 F.3d 69 (1
st
Cir. 2001). Also see Rivera-
Rodriguez v. Beninato, 469 F.3d 1 (1
st
Cir. 2006)(noting that for qualified immunity purposes, Bivens and 1983
actions would be treated in the same manner); Van Strum v. Lawn, 40 F.2d 406, 409-10 (9
th
Cir. 1991)(Actions
under 1983 and those under Bivens are identical save for the replacement of a State actor under 1983 by a
Federal actor under Bivens); Butz v. Economou, 438 U.S. 478, 98 S. Ct. 2894, 57 L. Ed. 2d 895 (1978)([W]e deem
it untenable to draw a distinction for the purpose of immunity law between suits brought against state officials under
1983 and suits brought directly under the Constitution against Federal officials).
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2d 523 (1987), Ginter v. Stallcup, 869 F.2d 384 (8


th
Cir. 1989); Creighton v. Anderson, 724 F.
Supp. 654 (D. Minn. 1989), judgment affd, 922 F.2d 443 (8
th
Cir. 1990).
50

410. Under the Qualified Immunity test, an Objective evaluation is applied, and
subjective intent is irrelevant, see Anderson v. Creighton, 483 U.S. 635, 107 S. Ct. 3034, 97 L.
Ed. 2d 523 (1987); Creighton v. Anderson, 724 F. Supp. 654 (D. Minn. 1989), judgment affd,
922 F.2d 443 (8
th
Cir. 1990); Washington Square Post No. 1212 American Legion v. Maduro,
907 F.2d 1288 (2
nd
Cir. 1990)(defendants subjective beliefs in Bivens action irrelevant for
purposes of qualified immunity analysis); Ecclesiastical Order of the Ism of Am. Inc. v. Chasin,
845 F.2d 113, 10 Fed.R Serv. 3d 1137 (6
th
Cir. 1988)(good faith actions of defendants in Bivens
actions are irrelevant since objective standard must be applied); Mitchell v. Forsyth, 472 U.S.
511, 105 S. Ct. 2806, 86 L. Ed. 2d 411, 2 Fed. R. Serv. 3d 221 (1985); Harlow v. Fitzgerald,
457 U.S. 800, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). See also Crawford-El v. Britton, 523
U.S. 574, 586-587 (1998)(explaining that evidence concerning the defendants subjective intent
is simply irrelevant).
411. Plaintiff Aaron Romero has established that Defendant Castleberry is not entitled
to any immunity in the Bivens action set forth herein, specifically Qualified Immunity based on
the 2-Pronged Saucier Qualified Immunity Test:
412. The 1
st
Prong of the Saucier Test is the Constitutional Inquiry (establishment of
the Right): The violation of Free Association Clause of First Amendment of Plaintiff Aaron
Romero is clear, specifically, the affirmative actions of Defendant J ohn R. Castleberry,
individually and together with the other Defendants, to produce the deliberate relapse of the

50
In Pearson v. Callahan, 555 U.S. 223, 241-42 (2009), the Supreme Court stated that the two steps established in
the 2-Pronged Saucier Test for evaluation of Qualified Immunity may be taken in either order at the reviewing
Courts discretion.
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addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference,
and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by the Defendant J ohn R. Castleberry (in direct
violation of DEA Policy and in a manner that constituted a breach of the Attorney Generals
Guidelines) caused the destruction of the familial companionship (family relationships) of
Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been
exposed) in clear violation of the Right to Free Association Clause (Constitutional protection
of citizens liberty interest in familial companionship from violation of Federal Government
actions) under the First Amendment.
51

413. The violation of the Due Process Clause of the Fifth Amendment of Plaintiff
Aaron Romero is clear.
414. Specifically, the affirmative actions of Defendant J ohn R. Castleberry,
individually and together with the other Defendants, to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference
and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by the Defendant J ohn R. Castleberry with
reckless and deliberate indifference (in direct violation of DEA Policy and in a manner that
constituted a breach of the Attorney Generals Guidelines) caused severe emotional and physical
harm to Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not
have been exposed) in clear in violation of the Fifth Amendment (Right to Due Process Clause

51
It is important to note Defendant J ohn R. Castleberry, acting in an undercover capacity, also distributed Crack
Cocaine (personally) to Theresa Saiz (for consumption as a an individual known to Defendant John R. Castleberry
to suffer from severe addiction to Crack Cocaine) during two separate undercover operations in Las Vegas, New
Mexico (as payment for procurement of Crack Cocaine from another individual for Defendant John R. Castleberry)
and Defendant J ohn R. Castleberry omitted the distribution of Crack Cocaine to Theresa Saiz in the relevant DEA
Reports of Investigation. Refer to the following Factual Basis Section (FTCA and Bivens Claims) below.
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Substantive Due Process Constitutional protection of citizens liberty interest in bodily


integrity).
415. Indeed, the affirmative actions of Defendant J ohn R. Castleberry, individually and
together with the other Defendants, to produce the deliberate relapse of the addiction to Crack
Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference and the continued
and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction) by the Defendant J ohn R. Castleberry with reckless and deliberate
indifference shocks the conscience and offends the publics sense of decency and fair play.
416. In addition, the affirmative actions of Defendant J ohn R. Castleberry, individually
and together with the other Defendants, to utilize the addiction to Crack Cocaine by Plaintiff
Aaron Romero in order to stack drug-related charges against Plaintiff Aaron Romero
(EXHIBIT 1) with reckless and deliberate indifference that also shocks the conscience is a clear
violation of the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in freedom from deprivation of those
liberty interests without due processes of law (or corruption of the processes of law that shocks
the conscience) by the Federal Government).
417. The 2nd Prong of the Saucier Test is the Qualified Immunity Inquiry
(reasonable official [Law Enforcement] comparison to the Constitutional Tort and clearly
established right at the time of the Constitutional violations):
418. Patently, the training and experience of Defendant J ohn R. Castleberry as a Drug
Enforcement Administration (DEA) Special Agent, together with the collective training and
experience of the other DEA Special Agent Defendants, indicates the knowledge possessed by
Defendant J ohn R. Castleberry at the time regarding the harms to individuals and families caused
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by severe addiction to controlled substances that includes, but not limited to, (i) destruction of
physical and mental health to both the addict and to the addicts family and friends, (ii)
alienation and disintegration of family relationships and friendships, (iii) mental anguish,
humiliation, and suffering of the addict and family of the addict, (iv) loss of income, benefits,
and employment, and (v) collapse of the general or particular aspirations, ambitions, and life
purpose of the addict.
419. Moreover, the training and experience of Defendant J ohn R. Castleberry as a
Drug Enforcement Administration (DEA) Special Agent, together with the collective training
and experience of the other DEA Special Agent Defendants, indicates the knowledge of
Defendant J ohn R. Castleberry at the time regarding the illegality of distribution of controlled
substances in general.
420. Indeed, the very essence of the position of a Drug Enforcement Administration
Special Agent is to enforce the Federal Drug Laws of the United States in order to prevent such
terrible harms to individuals and families caused by severe addiction to controlled substances.
421. In this instance, Defendant J ohn R. Castleberry, individually and together with the
other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and
deliberate indifference regarding the purposeful relapse of the addiction to Crack Cocaine by
Plaintiff Aaron Romero and the continued and intentional distribution of Crack Cocaine to
Plaintiff Aaron Romero (for consumption and in furtherance of the addiction) by the Defendants
in order to further the investigation.
422. Moreover, Defendant J ohn R. Castleberry, individually and together with the
other Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
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anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
423. Plainly, the acts of Defendant J ohn R. Castleberry, individually and together with
the other Defendants, are against fundamental law enforcement principles, DEA Training and
Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants, and
clearly established law of the Right to Due Process rooted in Supreme Court precedent, Tenth
Circuit precedent, other Circuit Court precedent, and the First Amendment and Fifth Amendment
to the United States Constitution (at the time of the wrongful acts).
424. As result, the aforementioned factors and clearly established law at the time
provided abundant notice to Defendant J ohn R. Castleberry and the other Defendants regarding
the unlawful nature of the violations of the Constitutional Rights of Plaintiff Aaron Romero
under the First Amendment and Fifth Amendment as set forth herein.
425. Consequently, the acts of Defendant J ohn R. Castleberry, individually and
together with the other Defendants, are conscience shocking and performed with recklessness
and deliberate indifference to the unlawful harms caused to Plaintiff Aaron Romero by the
Defendants, and in utter opposition to the core duty of an official bearing obligations under the
Due Process Clause to refrain from creating or elevating the risk of harm to others particularly
in a manner that shocks the conscience and corrupts the processes of law).
426. Objectively, notwithstanding the abuses of fundamental law enforcement
principles, breaches of agency policy and regulations, and violations of clearly established law
of the Right to Due Process rooted in Supreme Court precedent, Circuit Court precedent, and the
First Amendment and Fifth Amendment to the United States Constitution, (a) no reasonable
Law Enforcement Official, Agent, or Officer possessing simple knowledge of the harms of
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addiction to controlled substances would recklessly and with deliberate indifference cause injury
through the purposeful relapse of a controlled substance addiction of an individual in order to
utilize the addiction to further an investigation.
427. Based on the premise of shocking the conscience of the reasonable official and
offending the publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; (b) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through continued distribution of a controlled substance to an
individual in order to utilize the addiction to further an investigation.
428. Based on the premise of shocking the conscience of the official and offending
the publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; and (c) no reasonable Law Enforcement Official, Agent, or Officer possessing
simple knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury in the form of mental anguish through use of addiction to
controlled substances to stack drug-related charges based on the premise of shocking the
conscience of the official and offending the publics sense of morality and justice regarding
higher standards of duties of Law Enforcement.
429. Therefore, Defendant J ohn R. Castleberry is not entitled to Qualified Immunity
based on application of the Supreme Court mandated 2-Pronged Saucier Qualified Immunity
Test.
430. Defendant J ohn R. Castleberry is liable in his individual capacity to Plaintiff
Aaron Romero for Compensatory and Punitive Monetary Damages based on commission of the
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Constitutional Torts set forth herein - under any fair reading of the United States Constitution,
Supreme Court controlling and binding precedent.
COUNT VI-
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
BODILY HARM UNDER BIVENS
AGAINST DEFENDANT PATRICIA G. WHELAN

431. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
432. This cause of action is brought by plaintiff in his individual and personal capacity
against defendant Patricia G. Whelan for deprivation of Plaintiffs constitutional rights to be free
of bodily harm under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
433. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest in their own bodily security from violation by federal
government action.
434. Defendant Whelan violated Plaintiffs constitutionally protected liberty interest in
bodily security by knowingly causing the deliberate relapse of Plaintiffs crack cocaine addiction
and the continued intentional distribution of crack cocaine to plaintiff. Indeed, the affirmative
acts of Defendant Whelan caused severe emotional and physical harm to Plaintiff Aaron Romero
(harm to which Plaintiff Aaron Romero otherwise would not have been exposed).
435. In addition to the conduct already described herein, the Defendant (Patricia G.
Whelan) who acted under the color of Federal Law and is liable in her individual capacity caused
severe harm to Plaintiff Aaron Romero in the form of Constitutional Torts/Violations by causing
the deliberate relapse of Plaintiffs addiction to Crack Cocaine, in order to utilize that addiction
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to further the investigation into other drug traffickers in Las Vegas, New Mexico as part of
Operation Smack City.
436. More specifically, on December 29, 2011, Defendant Patricia G. Whelan, and
other agents debriefed CS Cesario regarding a meeting with Plaintiff Aaron Romero on
December 28, 2011 in which CS Cesario arranged for the purchase of Crack Cocaine through
Plaintiff Aaron Romero to occur the following day on December 29, 2011.
437. Notably, during the debriefing, Defendant Whelan again learned that Plaintiff
Aaron Romero suffered from severe addiction to controlled substances, specifically illustrated in
the Debriefing Report regarding the meeting between Aaron Romero and the CS on 12-28-11.
438. CS Cesario informed Defendant Whelan (again) that Plaintiff Aaron Romero
consumed crack cocaine by stating he smoke(d) the majority of it.
439. Defendant Whelan demonstrated the Deliberate Indifference to the plight and
suffering of Plaintiff Aaron Romero caused by the crippling addiction to Crack Cocaine in the
sense the Defendant was warned time and again regarding the addiction to Crack Cocaine and
the anguish the addiction caused Plaintiff Aaron Romero.
440. Defendant Whelan continued (with evident Recklessness and Deliberate
Indifference to subsequent physical and emotional harms) to feed Plaintiff Romeros addiction
to Crack Cocaine in order to carry-out the calculated umbrella strategy of using Plaintiffs
and other individuals(Theresa Saiz, Patrick Vigil, and others as yet identified or known
that are addicted to controlled substances) addiction to Crack Cocaine to further the
investigation (Operation Smack City in Las Vegas, New Mexico).
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441. In addition, on December 29, 2011, CS J ason purchased 14 Rocks/3.6 grams of


Crack Cocaine (DEA Drug Exhibit 3) through Plaintiff Aaron Romero for $200.00 at the
residence of Plaintiff Aaron Romero.
442. In this undercover operation, Defendant Whelan again demonstrated her
knowledge and belief of the Defendants regarding the addiction to controlled substances by
Plaintiff Aaron Romero based on the Debriefing of CS Cesario.
443. Most notably, the DEA Report indicates that CS J ason obtained the Crack
Cocaine from Plaintiff Aaron Romero and CS J ason distributed 1 Rock of Crack Cocaine to
Plaintiff Aaron Romero as payment for the procurement of Crack Cocaine.
444. During this crack cocaine purchase, CS J ason acknowledges that Plaintiff Romero
is using drugs and does not look good.
445. During the same conversation between CS J ason and CS Cesario, CS J ason stated,
tell her about the finders fee, right.
446. CS J asons statements refers to reminding Defendant Yazzie about the finders
fee which refers to the distribution of crack cocaine to Plaintiff as broker payments for the
procurement of Crack Cocaine.
447. As set forth above, defendant Whelan caused the distribution of crack cocaine to
Plaintiff on several occasions essentially, establishing a reliable system in which Plaintiff Aaron
Romero would procure Crack Cocaine from other individuals in exchange for distribution of
Crack Cocaine from the Defendants (through the DEA Confidential Informants) for Plaintiffs
consumption.
448. Defendant Whelan utilized Plaintiffs addiction to Crack Cocaine by Plaintiff
Aaron Romero to stack drug-related charges against Plaintiff Aaron Romero.
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449. On May 9, 2012, CS Cesario and Defendant Whelan purchased 7 grams of Crack
Cocaine for $250.00 through Plaintiff Aaron Romero at his residence.
450. In this undercover operation, Defendant Whelan again distributed a controlled
substance to Plaintiff Aaron Romero based on acquisition of Crack Cocaine through Plaintiff
Aaron Romero by CS Cesario and Defendant Whelan and the subsequent distribution of Crack
Cocaine to Plaintiff Aaron Romero by CS Cesario as payment for the procurement of Crack
Cocaine.
52

451. Specifically, the DEA Report of Investigation prepared by Defendant Whelan
depicts The CS stated Romero grabbed one (1) of the five (5) bags and handed it to the
CSThe CS advised Romero asked for a finders fee and a cigaretteThe CS said he/she broke
off a $20-$30 rock amount which he/she provided to Romero along with a cigarette.
452. Furthermore, a short time prior to the acquisition of Crack Cocaine, CS Cesario
(referring to Plaintiff Aaron Romero) stated to Defendant Whelan, I think hes tweaking, ey.
453. In response, Defendant Whelan stated, Yeah, he doesnt look good.It looks
like he lost some weight.
454. In reply, CS Cesario stated, This dudes a Crack Head.

52
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 32 by CS-(redacted) and SA Yazzie [Patricia G. Whelan] from Aaron
Romero on May 9, 2012 dated 05-10-12 by Special Agent Patricia Yazzie (Patricia G. Whelan) and approved by
Group Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-6 Report of Investigation titled
Surveillance of meetings between CS (redacted), SA Yazzie [Patricia G. Whelan], Aaron Romero and Pat Vigil on
May 9, 2012, and the Acquisition of N-47, N-48, and N-49 dated 05-11-12 by Special Agent Kevin Mondragon
and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 05-10-12
regarding Exhibit 32 by Special Agent Patricia Yazzie (Patricia G. Whelan] and approved by Group Supervisor
Matthew Mayfield; and Case Number MM-12-0011 DEA Audio Exhibit N-32. The reports and audio recording
are available to the Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio
recordings were generated by the United States and therefore, the reports and audio recordings are in possession of
the United States.

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455. At the end of the recording of the transaction, and immediately after the
acquisition of Crack Cocaine from Plaintiff Aaron Romero, CS Cesario stated to Defendant
Whelan, Fuck no and I broke him off his finders fee.
456. In response, Defendant Whelan stated, Okay, does it look like he and CS
Cesario completed or interrupted the sentence of Defendant Whelan by stating, They were
smoking, I mean that whole fucking place stunk.They blew it up (referring to consumption of
the Crack Cocaine (provided by CS Cesario) by Plaintiff Aaron Romero and inferentially,
Theresa Saiz).
457. Most disturbingly, Defendant Whelan again demonstrated the Deliberate
Indifference to the plight and suffering of Plaintiff Aaron Romero caused by the crippling
addiction to Crack Cocaine which in turn, [the relapse of the addiction] was caused
intentionally by Defendant.
458. Plaintiffs addiction was furthered purposefully by the Defendant through
distribution of the Crack Cocaine to Plaintiff Aaron Romero for consumption.
459. Indeed, the remark by Defendant Whelan that Yeah, he doesnt look good.It
looks like he lost some weight indicates one particular physical harm of the relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero that was caused by the Defendant.
460. Undeniably, Defendant Whelan with the other defendants continued to utilize
Plaintiffs addiction to Crack Cocaine to further the investigation of drug traffickers in Las
Vegas, New Mexico through distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption) as a broker payment for the procurement of Crack Cocaine from the drug
traffickers and to stack drug related charges against Plaintiff Aaron Romero.
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461. Defendant Whelan caused severe emotional and physical harm to Plaintiff Aaron
Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in
clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
462. Indeed, the affirmative actions of Defendant Whelan produced Plaintiffs relapse
of the addiction to Crack Cocaine with reckless and deliberate indifference and the continued and
intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction) by Defendant Whelan with reckless and deliberate indifference
shocks the conscience and offends the publics sense of morality and justice.
463. Defendant Whelans actions deprived Plaintiff of his Constitutionally protected
liberty interest in bodily integrity caused him harm.
464. Defendant Whelans gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
465. Defendant Whelans gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT VII
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
DEPRIVATION OF LIBERTY INTERESTS WITHOUT DUE PROCESS OF
LAW UNDER BIVENS AGAINST DEFENDANT PATRICIA G. WHELAN

466. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
467. This claim is brought by plaintiff in his individual and personal capacity against
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defendant Whelan for deprivation of Plaintiffs constitutional rights to be free from deprivation
of liberty interests without due process of law (or corruption of the processes of law that shocks
the conscience) under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
468. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests
without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government.
469. The actions of Defendant Whelan to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero and the continued and intentional
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in furtherance of
the addiction) by Defendant Whelan violated Plaintiffs Fifth Amendment Constitutional right to
be free from deprivation of liberty without due process of law as well as shocks the
conscience and offends the publics sense of morality and justice.
470. Moreover, the affirmative actions of Defendant Whelan to utilize the addiction to
Crack Cocaine by Plaintiff Aaron Romero in order to stack drug-related charges against
Plaintiff (EXHIBIT 1) with reckless and deliberate indifference also shocks the conscience is a
clear violation of the Fifth Amendment (Right to Due Process Clause).
471. The Gross Misconduct of Defendant Whelan in the form of Recklessness,
Conscious Disregard, and Deliberate Indifference to the physical and emotional harm suffered by
Plaintiff Aaron Romero based on the affirmative actions of Defendant Whelan in the form of (1)
intentionally causing relapse of addiction to Crack Cocaine by Plaintiff Aaron Romero, (2) the
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continued distribution of Crack Cocaine to Plaintiff Aaron Romero for consumption and in
furtherance of his addiction, and (3) the subsequent stacking of drug-related charges regarding
Plaintiff Aaron Romero together and separately shock the conscience and distort and
corrupt the processes of law.
472. Defendant Whelans actions deprived Plaintiff of his Constitutionally
protected liberty interest in freedom from deprivation of liberty interests without due processes
of law and caused him harm.
473. Defendant Whelans gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
474. Defendant Whelans gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT VIII
CLAIM FOR VIOLATION TO PLAINTIFFS FIRST AMENDMENT RIGHT TO
A CONTINUING RELATIONSHIP WITH HIS FAMILY
UNDER BIVENS AGAINST DEFENDANT PATRICIA G. WHELAN

475. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
476. This claim is brought by plaintiff in his individual and personal capacity against
defendant Whelan for deprivation of Plaintiffs constitutional right to a constitutional right to a
relationship with his family under the Due Process Clause of the Fifth Amendment and free
association clause of the First Amendment, pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388 (1971).
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477. The Constitution specifically the Fifth and First Amendments protects citizens
liberty interests in familial companionship from violation of federal government action.
478. Defendant Whelan violated Plaintiffs liberty interest in familial companionship
by knowingly causing plaintiffs relapse of his addiction to crack cocaine, distributing crack
cocaine to plaintiff and by stacking charges, as described herein. Indeed, the affirmative actions
of Defendant Whelan to produce the deliberate relapse of the addiction to Crack Cocaine by
Plaintiff with reckless and deliberate indifference and the continued and intentional distribution
of Crack Cocaine to Plaintiff (for consumption and in furtherance of the addiction) by Defendant
Whelan with reckless and deliberate indifference caused the destruction of the familial
companionship (family relationships) of Plaintiff (harm to which Plaintiff otherwise would not
have been exposed).
479. Defendant Whelan knew or should have known that by distributing crack cocaine
to Plaintiff and deepening his addiction, plaintiffs familial relationships would be adversely
affected as his family had isolated him.
480. Defendant Whelans actions deprived Plaintiff of his Constitutionally
protected liberty interest in familial companionship.
481. Defendant Whelans gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
482. Defendant Whelans gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.


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QUALIFIED IMMUNITY DOES NOT APPLY TO DEFENDANT WHELAN


483. The 1
st
Prong of the Saucier Test is the Constitutional Inquiry (establishment of
the Right).
484. The violation of the Plaintiffs right pursuant to the Free Association Clause of
First Amendment is clear, specifically, the affirmative actions of Defendant Patricia G. Whelan,
individually and together with the other Defendants, to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference.
485. Defendant Whelans continued and intentional distribution of Crack Cocaine to
Plaintiff Aaron Romero (for consumption and in furtherance of the addiction), with reckless and
deliberate indifference (in direct violation of DEA Policy and in a manner that constituted a
breach of the Attorney Generals Guidelines) caused the destruction of Plaintiffs familial
companionship (family relationships) (harm to which Plaintiff Aaron Romero otherwise would
not have been exposed) in clear violation of the Right to Free Association Clause.
486. Under the First Amendment,
53
citizens have a constitutionally protected liberty
interest in familial companionship to be free from government violations.
487. The violation of Plaintiffs right under the Due Process Clause of the Fifth
Amendment is clear, specifically, the affirmative actions of Defendant Patricia G. Whelan,
individually and together with the other Defendants, to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference.

53
It is also important to note that Defendant Patricia G. Whelan, acting in an undercover capacity, authorized
distribution of Crack Cocaine to Patrick Vigil (for consumption as a an individual known to Defendant Patricia G.
Whelan to suffer from severe addiction to Crack Cocaine) by a DEA Confidential Informant (in the presence of
Defendant Patricia G. Whelan) as a broker payment for the procurement of Crack Cocaine from another individual
in Las Vegas, New Mexico. Refer to the following Factual Basis Section (FTCA and Bivens Claims) below.
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488. Plaintiff also established a violation by Defendant Whelans continued and


intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction), with reckless and deliberate indifference (in direct violation of
DEA Policy and in a manner that constituted a breach of the Attorney Generals Guidelines).
489. Defendants reckless acts caused severe emotional and physical harm to Plaintiff
Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed)
in clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
490. Indeed, the affirmative actions of Defendant Patricia G. Whelan, individually and
together with the other Defendants, to produce the deliberate relapse of the addiction to Crack
Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference and Defendant
Whelans continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) shocks the conscience and offends the
publics sense of decency and fair play.
491. In addition, the affirmative actions of Defendant Patricia G. Whelan, individually
and together with the other Defendants, to utilize the addiction to Crack Cocaine by Plaintiff
Aaron Romero in order to stack drug-related charges against Plaintiff Aaron Romero
(EXHIBIT 1) with reckless and deliberate indifference that also shocks the conscience is a clear
violation of the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in freedom from deprivation of those
liberty interests without due processes of law (or corruption of the processes of law that shocks
the conscience) by the Federal Government).
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492. The 2nd Prong of the Saucier Test is the Qualified Immunity Inquiry
(reasonable official [Law Enforcement] comparison to the Constitutional Tort and clearly
established right at the time of the Constitutional violations).
493. The training and experience of Defendant Patricia G. Whelan as a DEA Special
Agent, together with the collective training and experience of the other DEA Special Agent
Defendants, indicates the knowledge possessed by Defendant Patricia G. Whelan at the time
regarding the harms to individuals and families caused by severe addiction to controlled
substances that includes, but not limited to, (i) destruction of physical and mental health to both
the addict and to the addicts family and friends, (ii) alienation and disintegration of family
relationships and friendships, (iii) mental anguish, humiliation, and suffering of the addict and
family of the addict, (iv) loss of income, benefits, and employment, and (v) collapse of the
general or particular aspirations, ambitions, and life purpose of the addict.
494. Moreover, the training and experience of Defendant Patricia G. Whelan as DEA
Special Agent, together with the collective training and experience of the other DEA Special
Agent Defendants, indicates the knowledge of Defendant Patricia G. Whelan at the time
regarding the illegality of distribution of controlled substances in general.
495. Indeed, the very essence of the position of a DEA Special Agent is to enforce the
Federal Drug Laws of the United States in order to prevent such terrible harms to individuals and
families caused by severe addiction to controlled substances.
496. In this instance, Defendant Patricia G. Whelan, individually and together with the
other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and
deliberate indifference regarding the purposeful relapse of the addiction to Crack Cocaine by
Plaintiff Aaron Romero and the continued and intentional distribution of Crack Cocaine to
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Plaintiff Aaron Romero (for consumption and in furtherance of the addiction) by the Defendants
in order to further the investigation.
497. Moreover, Defendant Patricia G. Whelan, individually and together with the other
Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
498. Plainly, the acts of Defendant Patricia G. Whelan, individually and together with
the other Defendants, are against fundamental law enforcement principles, DEA Training and
Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants, and
clearly established law of the Right to Due Process rooted in Supreme Court precedent, 10
th

Circuit precedent, other Circuit Court precedent, and the First Amendment and Fifth Amendment
to the United States Constitution (at the time of the wrongful acts).
499. As result, the aforementioned factors and clearly established law at the time
provided abundant notice to Defendant Patricia G. Whelan and the other Defendants regarding
the unlawful nature of the violations of the Constitutional Rights of Plaintiff Aaron Romero
under the First Amendment and Fifth Amendment as set forth herein.
500. Consequently, the acts of Defendant Patricia G. Whelan, individually and together
with the other Defendants, are conscience shocking and performed with recklessness and
deliberate indifference to the unlawful harms caused to Plaintiff Aaron Romero by the
Defendants, and in utter opposition to the core duty of an official bearing obligations under the
Due Process Clause to refrain from creating or elevating the risk of harm to others particularly
in a manner that shocks the conscience and corrupts the processes of law).
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501. Objectively, notwithstanding the abuses of fundamental law enforcement


principles, breaches of agency policy and regulations, and violations of clearly established law
of the Right to Due Process rooted in Supreme Court and Circuit precedent, and the First
Amendment and Fifth Amendment to the United States Constitution, (a) no reasonable Law
Enforcement Official, Agent, or Officer possessing simple knowledge of the harms of
addiction to controlled substances would recklessly and with deliberate indifference cause injury
through the purposeful relapse of a controlled substance addiction of an individual in order to
utilize the addiction to further an investigation.
502. Based on the premise of shocking the conscience of the official and offending
the publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; (b) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through continued distribution of a controlled substance to an
individual in order to utilize the addiction to further an investigation.
503. Based on the premise of shocking the conscience of the official and offending
the publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; and (c) no reasonable Law Enforcement Official, Agent, or Officer possessing
simple knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury in the form of mental anguish through use of addiction to
controlled substances to stack drug-related charges.
504. Based on the premise of shocking the conscience of the official and offending
the publics sense of morality and justice regarding higher standards of duties of Law
Enforcement.
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505. Therefore, Defendant Patricia G. Whelan is not entitled to Qualified Immunity


based on application of the Supreme Court mandated 2-Pronged Saucier Qualified Immunity
Test and Defendant Patricia G. Whelan is liable in her individual capacity to Plaintiff Aaron
Romero for Compensatory and Punitive Monetary Damages based on commission of the
Constitutional Torts set forth herein - under any fair reading of the United States Constitution,
Supreme Court controlling and binding precedent.

COUNT IX
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
BODILY HARM UNDER BIVENS
AGAINST DEFENDANT MATTHEW BRUCE MAYFIELD

506. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
507. This cause of action is brought by plaintiff in his individual and personal capacity
against defendant Matthew Bruce Mayfield for deprivation of Plaintiffs constitutional rights to
be free of bodily harm under the Due Process Clause of the Fifth Amendment to the United
States Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 US 388 (1971).
508. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest in their own bodily security from violation by federal
government action.
509. Defendant Mayfield violated Plaintiffs constitutionally protected liberty interest
in bodily security by knowingly causing the deliberate relapse of Plaintiffs crack cocaine
addiction and the continued intentional distribution of crack cocaine to plaintiff. Indeed, the
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affirmative acts of Defendant Mayfield caused severe emotional and physical harm to Plaintiff
Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed).
510. In addition to the conduct already described herein, the Defendant (Matthew
Bruce Mayfield) who acted under the color of Federal Law and is liable in his individual
capacity caused severe harm to Plaintiff Aaron Romero in the form of Constitutional
Torts/Violations by causing the deliberate relapse of Plaintiffs addiction to Crack Cocaine, in
order to utilize that addiction to further the investigation into other drug traffickers in Las Vegas,
New Mexico as part of Operation Smack City.
511. More specifically, on December 29, 2011, Defendant Matthew Mayfield, and
other agents debriefed CS Cesario regarding a meeting with Plaintiff Aaron Romero on
December 28, 2011 in which CS Cesario arranged for the purchase of Crack Cocaine through
Plaintiff Aaron Romero to occur the following day on December 29, 2011.
512. Notably, during the debriefing, Defendant Mayfield again learned that Plaintiff
Aaron Romero suffered from severe addiction to controlled substances, specifically illustrated in
the Debriefing Report regarding the meeting between Aaron Romero and the CS on 12-28-11.
513. CS Cesario informed Defendant Mayfield and other defendants (again) that
Plaintiff Aaron Romero consumed crack cocaine by stating he smoke(d) the majority of it.
514. Defendant Mayfield demonstrated the Deliberate Indifference to the plight and
suffering of Plaintiff Aaron Romero caused by the crippling addiction to Crack Cocaine in the
sense the Defendant was warned time and again regarding the addiction to Crack Cocaine and
the anguish the addiction caused Plaintiff Aaron Romero.
515. Defendant Mayfield continued (with evident Recklessness and Deliberate
Indifference to subsequent physical and emotional harms) to cause the feeding of Plaintiffs
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addiction of Crack Cocaine, in order to carry-out the calculated umbrella strategy of using
Plaintiffs and other individuals(Theresa Saiz, Patrick Vigil, and others as yet identified or
known that are addicted to controlled substances) addiction to Crack Cocaine to further
the investigation (Operation Smack City in Las Vegas, New Mexico) through Recklessness
and Deliberate Indifference as well as to stack drug-related charges against Plaintiff Aaron
Romero.
516. Upon information and belief, Defendant Mayfield was present during the
undercover operation of December 29, 2011, during which CS J ason purchased 14 Rocks/3.6
grams of Crack Cocaine (DEA Drug Exhibit 3) through Plaintiff Aaron Romero for $200.00 at
the residence of Plaintiff Aaron Romero.
517. During this operation, CS J ason and co-Defendant Whelan distributed crack
cocaine to Plaintiff Aaron Romero for his consumption.
518. Upon information and belief, Defendant Mayfield utilized Plaintiffs addiction to
Crack Cocaine by Plaintiff Aaron Romero to stack drug-related charges against Plaintiff Aaron
Romero.
519. Upon information and belief, during the course of Operation Smack City,
Defendant Mayfield was present during debriefings and operational plans wherein the objectives
of the investigation were discussed.
520. Defendant Mayfield ostensibly signed off on numerous reports authored by co-
defendants Whelan and Castleberry detailing the investigation, including the distribution of crack
cocaine to Plaintiff.
521. Defendant Mayfield failed to set a prohibition of this procedure of
providing Crack Cocaine to Plaintiff Aaron Romero.
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522. Defendant Mayfield failed to establish a prohibition of alteration and destruction


of the drug evidence (in accordance with DEA Policy and the Attorney Generals Guidelines
Regarding Use of Confidential Informants, fundamental Law Enforcement principles, and clearly
established law at the time as described above).
523. Rather, Defendant Mayfield and the other defendants continued to utilize the
addiction to Crack Cocaine by Plaintiff Aaron Romero to further the investigation of drug
traffickers in Las Vegas, New Mexico.
524. Defendant Mayfield exploited Plaintiffs addiction through distribution of Crack
Cocaine to Plaintiff (for consumption by Plaintiff Aaron Romero) as a broker payment for the
procurement of Crack Cocaine from the drug traffickers and to stack drug related charges
against Plaintiff Aaron Romero.
525. Defendant Mayfield caused severe emotional and physical harm to Plaintiff
Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed)
in clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
526. Indeed, the affirmative actions of Defendant Mayfield produced Plaintiffs
relapse of the addiction to Crack Cocaine with reckless and deliberate indifference and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by Defendant Mayfield with reckless and
deliberate indifference shocks the conscience and offends the publics sense of morality and
justice.
527. Defendant Mayfields actions deprived Plaintiff of his Constitutionally protected
liberty interest in bodily integrity caused him harm.
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528. Defendant Mayfields gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
529. Defendant Mayfields gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT X
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
DEPRIVATION OF LIBERTY INTERESTS WITHOUT DUE PROCESS OF
LAW UNDER BIVENS AGAINST DEFENDANT MATTHEW B. MAYFIELD

530. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
531. This claim is brought by plaintiff in his individual and personal capacity against
defendant Mayfield for deprivation of Plaintiffs constitutional rights to be free from deprivation
of liberty interests without due process of law (or corruption of the processes of law that shocks
the conscience) under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
532. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests
without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government.
533. The actions of Defendant Mayfield to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero and the continued and intentional
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in furtherance of
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the addiction) by Defendant Mayfield violated Plaintiffs Fifth Amendment Constitutional right
to be free from deprivation of liberty without due process of law as well as shocks the
conscience and offends the publics sense of morality and justice.
534. Moreover, the affirmative actions of Defendant Mayfield to utilize the addiction
to Crack Cocaine by Plaintiff Aaron Romero in order to stack drug-related charges against
Plaintiff (EXHIBIT 1) with reckless and deliberate indifference also shocks the conscience and
is a clear violation of the Fifth Amendment (Right to Due Process Clause).
535. The Gross Misconduct of Defendant Mayfield in the form of Recklessness,
Conscious Disregard, and Deliberate Indifference to the physical and emotional harm suffered by
Plaintiff Aaron Romero based on the affirmative actions of Defendant Mayfield in the form of
(1) intentionally causing relapse of addiction to Crack Cocaine by Plaintiff Aaron Romero, (2)
the continued distribution of Crack Cocaine to Plaintiff Aaron Romero for consumption and in
furtherance of his addiction, and (3) the subsequent stacking of drug-related charges regarding
Plaintiff Aaron Romero together and separately shock the conscience and distort and
corrupt the processes of law.
536. Defendant Mayfields actions deprived Plaintiff of his Constitutionally
protected liberty interest in freedom from deprivation of liberty interests without due processes
of law and caused him harm.
537. Defendant Mayfields gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
538. Defendant Mayfields gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.
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COUNT XI
CLAIM FOR VIOLATION TO PLAINTIFFS FIRST AMENDMENT RIGHT TO
A CONTINUING RELATIONSHIP WITH HIS FAMILY
UNDER BIVENS AGAINST DEFENDANT MATTHEW B. MAYFIELD

539. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
540. This claim is brought by plaintiff in his individual and personal capacity against
defendant Mayfield for deprivation of Plaintiffs constitutional right to a constitutional right to a
relationship with his family under the Due Process Clause of the Fifth Amendment and free
association clause of the First Amendment, pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388 (1971).
541. The Constitution specifically the Fifth and First Amendments protects citizens
liberty interests in familial companionship from violation of federal government action.
542. Defendant Mayfield violated Plaintiffs liberty interest in familial companionship
by knowingly causing plaintiffs relapse of his addiction to crack cocaine, distributing crack
cocaine to plaintiff and by stacking charges, as described herein. Indeed, the affirmative actions
of Defendant Mayfield to produce the deliberate relapse of the addiction to Crack Cocaine by
Plaintiff with reckless and deliberate indifference and the continued and intentional distribution
of Crack Cocaine to Plaintiff (for consumption and in furtherance of the addiction) by Defendant
Mayfield with reckless and deliberate indifference caused the destruction of the familial
companionship (family relationships) of Plaintiff (harm to which Plaintiff otherwise would not
have been exposed).
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543. Defendant Mayfield knew or should have known that by distributing crack
cocaine to Plaintiff and deepening his addiction, plaintiffs familial relationships would be
adversely affected as his family had isolated him.
544. Defendant Mayfields actions deprived Plaintiff of his Constitutionally
protected liberty interest in familial companionship.
545. Defendant Mayfields gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
546. Defendant Mayfields gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

QUALIFIED IMMUNITY DOES NOT APPLY TO DEFENDANT MAYFIELD
547. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
548. The affirmative actions of Defendant Matthew B. Mayfield, individually and
together with the other Defendants, to produce the deliberate relapse of the addiction to Crack
Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference, and the continued
and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction) by the Defendant Matthew B. Mayfield (in direct violation of DEA
Policy and in a manner that constituted a breach of the Attorney Generals Guidelines) caused
the destruction of the familial companionship (family relationships) of Plaintiff Aaron Romero
(harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in clear
violation of the Right to Free Association Clause (Constitutional protection of citizens liberty
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interest in familial companionship from violation of Federal Government actions) under the
First Amendment.
549. The violation of plaintiffs right under the Due Process Clause of the Fifth
Amendment is clear, specifically, the affirmative actions of Defendant Matthew B. Mayfield,
individually and together with the other Defendants, to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference
and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by the Defendant Matthew B. Mayfield (in
direct violation of DEA Policy and in a manner that constituted a breach of the Attorney
Generals Guidelines) caused severe emotional and physical harm to Plaintiff Aaron Romero
(harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in clear in
violation of the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in bodily integrity).
550. Indeed, the affirmative actions of Defendant Matthew B. Mayfield, individually
and together with the other Defendants, to produce the deliberate relapse of the addiction to
Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by the Defendant Matthew B. Mayfield with
reckless and deliberate indifference shocks the conscience and offends the publics sense of
decency and fair play.
551. In addition, the affirmative actions of Defendant Matthew B. Mayfield,
individually and together with the other Defendants, to utilize the addiction to Crack Cocaine by
Plaintiff Aaron Romero in order to stack drug-related charges against Plaintiff Aaron Romero
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(EXHIBIT 1) with reckless and deliberate indifference that also shocks the conscience is a clear
violation of the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in freedom from deprivation of those
liberty interests without due processes of law (or corruption of the processes of law that shocks
the conscience) by the Federal Government).
552. The 2nd Prong of the Saucier Test is the Qualified Immunity Inquiry
(reasonable official [Law Enforcement] comparison to the Constitutional Tort and clearly
established right at the time of the Constitutional violations).
553. The training and experience of Defendant Matthew B. Mayfield as a DEA Special
Agent and Group Supervisor, together with the collective training and experience of the other
DEA Special Agent Defendants, indicates the knowledge possessed by Defendant Matthew B.
Mayfield at the time regarding the harms to individuals and families caused by severe addiction
to controlled substances that includes, but not limited to, (i) destruction of physical and mental
health to both the addict and to the addicts family and friends, (ii) alienation and disintegration
of family relationships and friendships, (iii) mental anguish, humiliation, and suffering of the
addict and family of the addict, (iv) loss of income, benefits, and employment, and (v) collapse
of the general or particular aspirations, ambitions, and life purpose of the addict.
554. Moreover, the training and experience of Defendant Matthew B. Mayfield as a
DEA Special Agent, together with the collective training and experience of the other DEA
Special Agent Defendants, indicates the knowledge of Defendant Matthew B. Mayfield at the
time regarding the illegality of distribution of controlled substances in general.
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555. Indeed, the very essence of the position of a DEA Special Agent is to enforce the
Federal Drug Laws of the United States in order to prevent such terrible harms to individuals and
families caused by severe addiction to controlled substances.
556. In this instance, Defendant Matthew B. Mayfield, individually and together with
the other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and
deliberate indifference regarding the purposeful relapse of Plaintiffs addiction to Crack Cocaine
and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) by the Defendants in order to further the
investigation.
557. Defendant Matthew B. Mayfield, individually and together with the other
Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
558. Plainly, the acts of Defendant Matthew B. Mayfield, individually and together
with the other Defendants, are against fundamental law enforcement principles, DEA Training
and Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants, and
clearly established law of the Right to Due Process rooted in Supreme Court precedent, 10
th

Circuit precedent, and the First Amendment and Fifth Amendment to the United States
Constitution (at the time of the wrongful acts).
559. As result, the aforementioned factors and clearly established law at the time
provided abundant notice to Defendant Matthew B. Mayfield and the other Defendants regarding
the unlawful nature of the violations of the Constitutional Rights of Plaintiff Aaron Romero
under the First Amendment and Fifth Amendment as set forth herein.
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560. Consequently, the acts of Defendant Matthew B. Mayfield, individually and


together with the other Defendants, are conscience shocking and performed with recklessness
and deliberate indifference to the unlawful harms caused to Plaintiff Aaron Romero by the
Defendants, and in utter opposition to the core duty of an official bearing obligations under the
Due Process Clause to refrain from creating or elevating the risk of harm to others particularly
in a manner that shocks the conscience and corrupts the processes of law).
561. Objectively, notwithstanding the abuses of fundamental law enforcement
principles, breaches of agency policy and regulations, and violations of clearly established law
of the Right to Due Process rooted in Supreme Court precedent, and the First Amendment and
Fifth Amendment to the United States Constitution,
(a) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through the purposeful relapse of a controlled
substance addiction of an individual in order to utilize the addiction to further an
investigation based on the premise of shocking the conscience of the official and
offending the publics sense of morality and justice regarding higher standards of duties
of Law Enforcement;
(b) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through continued distribution of a controlled
substance to an individual in order to utilize the addiction to further an investigation
based on the premise of shocking the conscience of the official and offending the
publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; and
(c) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury in the form of mental anguish through use of
addiction to controlled substances to stack drug-related charges based on the premise
of shocking the conscience of the official and offending the publics sense of morality
and justice regarding higher standards of duties of Law Enforcement.

562. Therefore, Defendant Matthew B. Mayfield is not entitled to Qualified Immunity
based on application of the Supreme Court mandated 2-Pronged Saucier Qualified Immunity
Test.
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563. Defendant Matthew B. Mayfield is liable in his individual capacity to Plaintiff


Aaron Romero for Compensatory and Punitive Monetary Damages based on commission of the
Constitutional Torts set forth herein - under any fair reading of the United States Constitution,
Supreme Court controlling precedent, and Circuit Court binding opinions.
564. DEA Policy, expressly DEA Manual Chapter 66, Subsection Chapter 661
6612: 6612.6 - Management Review of Confidential Sources, 6612.61(A) Immediate
Supervisor: requires The immediate supervisor is responsible for assuring that all handling of
confidential sources by employees under his supervision is in compliance with the Domestic
Operations Guidelines.
565. Factors that will be routinely considered by the immediate supervisor in carrying
out this responsibility include that: [factors 1, 2, 4-8 are not relevant] (3) Any required external
approvals for utilization are properly and fully obtained (e.g. Written Authority Letter from the
United States Attorney and the Special Agent in Charge to authorize distribution of controlled
substances through DEA Confidential Informants to Plaintiff Aaron Romero and others) and (9)
Any appropriate requirements pertaining to review by the SAC, prosecutor, or DEA
Headquarters are met insofar as it is his responsibility to do so.
566. There will be no separate reporting system by which the Supervisor documents
his adherence to the foregoinghis written approval of investigative reports signifies his
adherence.
567. Consequently, Defendant Matthew B. Mayfield, bearing responsibility as Group
Supervisor with direct superintendent duties regarding investigation Operation Smack City and
supervision of the Case Agents (Defendant J ohn R. Castleberry and Defendant Patricia G.
Whelan) approved:
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(1) Establishment, use, debriefings, and supervision of the DEA Confidential Informants
(CS Cesario and CS J ason) to include distribution of Crack Cocaine to Plaintiff Aaron
Romero and others for consumption and in furtherance of the addiction,
(2) DEA Reports of Investigation, Forms, and Operational Plans regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero and others for consumption and in furtherance
of the addiction,
(3) Memoranda, Hard copies of emails, Letters, Teletypes, Handwritten Notes, and/or
other Forms of Correspondence or case file specific documents regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero and others for consumption and in furtherance
of the addiction, and
(4) on-site supervision of the undercover operations regarding distribution of Crack
Cocaine to Plaintiff Aaron Romero and others for consumption and in furtherance of the
addiction. Moreover, Defendant Matthew B. Mayfield (as Group Supervisor) recklessly
and with deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed
both to warn the other Defendants to cease the wrongful acts and to establish a
prohibition of the distribution in accordance with DEA Policy and to conform to the
Attorney Generals Guidelines.


COUNT XII
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
BODILY HARM UNDER BIVENS
AGAINST DEFENDANT RAYMOND KEITH BROWN

568. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
569. This cause of action is brought by plaintiff in his individual and personal capacity
against defendant Raymond Keith Brown for deprivation of Plaintiffs constitutional rights to be
free of bodily harm under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
570. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest in their own bodily security from violation by federal
government action.
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571. In this instance, Defendant Raymond Keith Brown, individually and together
with the other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness
and deliberate indifference regarding the purposeful relapse of the addiction to Crack Cocaine by
Plaintiff Aaron Romero. Indeed, the affirmative acts of Defendant Brown caused severe
emotional and physical harm to Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero
otherwise would not have been exposed).
572. Defendant Raymond Keith Brown, individually and together with the other
Defendants, directly caused harm to Plaintiff Aaron Romero with the continued and intentional
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in furtherance of
the addiction) in order to further the investigation.
573. Defendant Raymond Keith Brown, individually and together with the other
Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
574. Importantly, the contents of the Confidential Source Files regarding the relevant
DEA Confidential Informants (CS Cesario and CS J ason) are required to contain DEA Reports
of Investigation and other documents (internal memoranda, notes, etc.) regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the DEA Informants.
575. Upon information and belief, Defendant Raymond Keith Brown (as ASAC)
either approved or was aware through Quarterly Review of the Confidential Source Files of CS
Cesario and CS J ason specifically annotated in the Memoranda titled Quarterly Review of
Confidential Source related to CS Cesario and CS J ason.
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576. Upon information and belief, Defendant Raymond Keith Brown recklessly (as
ASAC) and with deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed
both to warn the other Defendants to cease the wrongful acts and establish a prohibition of the
distribution in accordance with DEA Policy and to conform to the Attorney Generals
Guidelines.
577. The Investigative Case Files regarding Operation Smack City are required to
contain the DEA Reports of Investigation, Forms, and Operational Plans regarding distribution
of Crack Cocaine to Plaintiff Aaron Romero of which Defendant Raymond Keith Brown (as
ASAC) approved or was aware.
578. Defendant Raymond Keith Brown (as ASAC) recklessly and with deliberate
indifference to the harm caused to Plaintiff Aaron Romero, failed both to warn the other
Defendants to cease the wrongful acts and to establish a prohibition of the distribution in
accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
579. The Investigative Case Files regarding Operation Smack City are required to
contain Memoranda, Hard copies of emails, Letters, Teletypes, Handwritten Notes, and/or other
Forms of Correspondence or case file specific documents regarding distribution of Crack
Cocaine to Plaintiff Aaron Romero in which Defendant Raymond Keith Brown (as ASAC)
approved or was aware.
580. Defendant Raymond Keith Brown (as ASAC) recklessly and with deliberate
indifference to the harm caused to Plaintiff Aaron Romero, failed to warn the other Defendants
to cease the wrongful acts and to establish a prohibition of the distribution in accordance with
DEA Policy and to conform to the Attorney Generals Guidelines.
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581. The contents of the Confidential Source Files regarding the relevant DEA
Confidential Informants (CS Cesario and CS J ason) are required to contain the Written
Authority Letter or other document from the United States Attorneys Office and the Special
Agent in Charge (or designee) that authorizes distribution of controlled substances through
DEA Confidential Informants to Plaintiff Aaron Romero and others in accordance with
requirement of the Tier 1 Otherwise Illegal Activity requirement of the Attorney General
Guidelines Regarding Use of Confidential Informants (see Footnote 33 above).
582. Upon information and belief Defendant Raymond Keith Brown (as ASAC) was
aware of the existence of the Written Authority Letter - or in contrast, Defendant Raymond
Keith Brown (as ASAC) was aware of the absence of the Written Authority Letter and
Defendant Raymond Keith Brown (as ASAC) recklessly and with deliberate indifference to
the harm caused to Plaintiff Aaron Romero, failed to obtain written authorization in the form of a
Written Authority Letter from the United States Attorney and the Special Agent in Charge in
order to distribute controlled substances (through the DEA Informants) to Plaintiff Aaron
Romero in accordance with DEA Policy (specifically, 6612.62(A)(4) Special Agent in Charge:
Whether the appropriate initial or ongoing approval requirements are being met) and to
conform to the Attorney Generals Guidelines.
583. Defendant Brown violated Plaintiffs constitutionally protected liberty interest in
bodily security by knowingly causing the deliberate relapse of Plaintiffs crack cocaine addiction
and the continued intentional distribution of crack cocaine to plaintiff.
584. In addition to the conduct already described herein, the Defendant (Raymond
Keith Brown) who acted under the color of Federal Law and is liable in his individual capacity
caused severe harm to Plaintiff Aaron Romero in the form of Constitutional Torts/Violations by
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causing the deliberate relapse of Plaintiffs addiction to Crack Cocaine, in order to utilize that
addiction to further the investigation into other drug traffickers in Las Vegas, New Mexico as
part of Operation Smack City.
585. Defendant Brown caused severe emotional and physical harm to Plaintiff Aaron
Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in
clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
586. Defendant Browns actions deprived Plaintiff of his Constitutionally protected
liberty interest in bodily integrity caused him harm.
587. Defendant Browns gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
588. Defendant Browns gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

COUNT XIII
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
DEPRIVATION OF LIBERTY INTERESTS WITHOUT DUE PROCESS OF
LAW UNDER BIVENS AGAINST DEFENDANT RAYMOND KEITH BROWN

589. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
590. This claim is brought by plaintiff in his individual and personal capacity against
defendant Brown for deprivation of Plaintiffs constitutional rights to be free from deprivation of
liberty interests without due process of law (or corruption of the processes of law that shocks the
conscience) under the Due Process Clause of the Fifth Amendment to the United States
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Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
591. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests
without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government.
592. The actions of Defendant Brown to allow the co-defendants to cause the
deliberate relapse of the addiction to Crack Cocaine by Plaintiff Aaron Romero and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) violated Plaintiffs Fifth Amendment
Constitutional right to be free from deprivation of liberty without due process of law as well as
shocks the conscience and offends the publics sense of morality and justice.
593. Moreover, the affirmative actions of Defendant Brown to utilize the addiction to
Crack Cocaine by Plaintiff Aaron Romero in order to stack drug-related charges against
Plaintiff (EXHIBIT 1) with reckless and deliberate indifference also shocks the conscience and
is a clear violation of the Fifth Amendment (Right to Due Process Clause).
594. Defendant Browns actions deprived Plaintiff of his Constitutionally protected
liberty interest in freedom from deprivation of liberty interests without due processes of law and
caused him harm.
595. Defendant Browns gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
596. Defendant Browns gross misconduct described herein entitles plaintiff to an
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award of punitive damages, in an amount to be determined at trial.



COUNT XIV
CLAIM FOR VIOLATION TO PLAINTIFFS FIRST AMENDMENT RIGHT TO
A CONTINUING RELATIONSHIP WITH HIS FAMILY
UNDER BIVENS AGAINST DEFENDANT RAYMOND KEITH BROWN

597. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
598. This claim is brought by plaintiff in his individual and personal capacity against
defendant Brown for deprivation of Plaintiffs constitutional right to a constitutional right to a
relationship with his family under the Due Process Clause of the Fifth Amendment and free
association clause of the First Amendment, pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388 (1971).
599. The Constitution specifically the Fifth and First Amendments protects citizens
liberty interests in familial companionship from violation of federal government action.
600. Defendant Brown violated Plaintiffs liberty interest in familial companionship by
knowingly authorizing co-defendants to cause plaintiffs relapse of his addiction to crack
cocaine, distributing crack cocaine to plaintiff and by stacking charges, as described herein.
601. Defendant Brown knew or should have known that by distributing crack cocaine
to Plaintiff and deepening his addiction, plaintiffs familial relationships would be adversely
affected as his family had isolated him. Indeed, the affirmative actions of Defendant Brown to
produce the deliberate relapse of the addiction to Crack Cocaine by Plaintiff with reckless and
deliberate indifference and the continued and intentional distribution of Crack Cocaine to
Plaintiff (for consumption and in furtherance of the addiction) by Defendant Brown with reckless
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and deliberate indifference caused the destruction of the familial companionship (family
relationships) of Plaintiff (harm to which Plaintiff otherwise would not have been exposed).
602. Defendant Browns actions deprived Plaintiff of his Constitutionally
protected liberty interest in familial companionship.
603. Defendant Browns gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
604. Defendant Browns gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

QUALIFIED IMMUNITY DOES NOT APPLY TO RAYMOND KEITH BROWN
605. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
606. The violation of Free Association Clause of First Amendment of Plaintiff Aaron
Romero is clear, specifically, the affirmative actions of Defendant Raymond Keith Brown,
individually and together with the other Defendants, to produce the deliberate relapse of
Plaintiffs addiction to Crack Cocaine, with reckless and deliberate indifference, and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction).
607. Defendant Brown acted with reckless and deliberate indifference (in direct
violation of DEA Policy and in a manner that constituted a breach of the Attorney Generals
Guidelines) caused the destruction of the familial companionship (family relationships) of
Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero otherwise would not have been
exposed) in clear violation of the Right to Free Association Clause (Constitutional protection
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of citizens liberty interest in familial companionship from violation of Federal Government


actions) under the First Amendment.
608. The violation of Plaintiffs right to the Due Process under the Fifth Amendment is
clear.
609. The affirmative actions of Defendant Raymond Keith Brown, individually and
together with the other Defendants, to produce the deliberate relapse of the addiction to Crack
Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference and the continued
and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction) by the Defendant Raymond Keith Brown caused severe
emotional and physical harm to Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero
otherwise would not have been exposed) in clear in violation of the Fifth Amendment (Right to
Due Process Clause Substantive Due Process Constitutional protection of citizens liberty
interest in bodily integrity).
610. Indeed, the affirmative actions of Defendant Raymond Keith Brown,
individually of continuing the intentional distribution of Crack Cocaine to Plaintiff Aaron
Romero (for consumption and in furtherance of the addiction) shocks the conscience and
offends the publics sense of decency and fair play.
611. The affirmative actions of Defendant Raymond Keith Brown, individually and
together with the other Defendants, to utilize the addiction to Crack Cocaine by Plaintiff Aaron
Romero in order to stack drug-related charges against Plaintiff Aaron Romero (EXHIBIT 1)
with reckless and deliberate indifference that also shocks the conscience is a clear violation of
the Fifth Amendment (Right to Due Process Clause Substantive Due Process Constitutional
protection of citizens liberty interest in freedom from deprivation of those liberty interests
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without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government).
612. The 2nd Prong of the Saucier Test is the Qualified Immunity Inquiry
(reasonable official [Law Enforcement] comparison to the Constitutional Tort and clearly
established right at the time of the Constitutional violations).
613. The training and experience of Defendant Raymond Keith Brown as a DEA
Special Agent and as Assistant Special Agent in Charge, together with the collective training and
experience of the other DEA Special Agent Defendants, indicates the knowledge possessed by
Defendant Raymond Keith Brown at the time regarding the harms to individuals and families
caused by severe addiction to controlled substances that includes, but not limited to,
(i) destruction of physical and mental health to both the addict and to the addicts family
and friends, (ii) alienation and disintegration of family relationships and friendships, (iii)
mental anguish, humiliation, and suffering of the addict and family of the addict, (iv) loss
of income, benefits, and employment, and (v) collapse of the general or particular
aspirations, ambitions, and life purpose of the addict.
614. The training and experience of Defendant Raymond Keith Brown as a DEA
Special Agent and as Assistant Special Agent in Charge, together with the collective training and
experience of the other DEA Special Agent Defendants, indicates the knowledge of Defendant
Raymond Keith Brown at the time regarding the illegality of distribution of controlled
substances in general. Indeed, the very essence of the position of a Drug Enforcement
Administration Special Agent is to enforce the Federal Drug Laws of the United States in order
to prevent such terrible harms to individuals and families caused by severe addiction to
controlled substances.
615. Defendant Raymond Keith Brown, individually and together with the other
Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and deliberate
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indifference regarding the purposeful relapse of the addiction to Crack Cocaine by Plaintiff
Aaron Romero and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron
Romero (for consumption and in furtherance of the addiction) by the Defendants in order to
further the investigation.
616. Defendant Raymond Keith Brown, individually and together with the other
Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
617. Plainly, the acts of Defendant Raymond Keith Brown, individually and together
with the other Defendants, are against fundamental law enforcement principles, DEA Training
and Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants, and
clearly established law of the Right to Due Process rooted in Supreme Court and Circuit
precedent and the First Amendment and Fifth Amendment to the United States Constitution (at
the time of the wrongful acts).
618. The aforementioned factors and clearly established law at the time provided
abundant notice to Defendant Raymond Keith Brown and the other Defendants regarding the
unlawful nature of the violations of the Constitutional Rights of Plaintiff Aaron Romero under
the First Amendment and Fifth Amendment as set forth herein.
619. Consequently, the acts of Defendant Raymond Keith Brown, individually and
together with the other Defendants, are conscience shocking and performed with recklessness
and deliberate indifference to the unlawful harms caused to Plaintiff Aaron Romero by the
Defendants, and in utter opposition to the core duty of an official bearing obligations under the
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Due Process Clause to refrain from creating or elevating the risk of harm to others particularly
in a manner that shocks the conscience and corrupts the processes of law).
620. Objectively, notwithstanding the abuses of fundamental law enforcement
principles, breaches of agency policy and regulations, and violations of clearly established law
of the Right to Due Process rooted in Supreme Court and Circuit precedent, and the First
Amendment and Fifth Amendment to the United States Constitution,
(a) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through the purposeful relapse of a controlled
substance addiction of an individual in order to utilize the addiction to further an
investigation based on the premise of shocking the conscience of the official and
offending the publics sense of morality and justice regarding higher standards of duties
of Law Enforcement;
(b) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through continued distribution of a controlled
substance to an individual in order to utilize the addiction to further an investigation
based on the premise of shocking the conscience of the official and offending the
publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; and
(c) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury in the form of mental anguish through use of
addiction to controlled substances to stack drug-related charges based on the premise
of shocking the conscience of the official and offending the publics sense of morality
and justice regarding higher standards of duties of Law Enforcement.

621. Therefore, Defendant Raymond Keith Brown is not entitled to Qualified
Immunity based on application of the Supreme Court mandated 2-Pronged Saucier Qualified
Immunity Test.
622. Defendant Raymond Keith Brown is liable in his individual capacity to
Plaintiff Aaron Romero for Compensatory and Punitive Monetary Damages based on
commission of the Constitutional Torts set forth herein - under any fair reading of the United
States Constitution, Supreme Court controlling precedent, and Circuit Court binding opinions.
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623. DEA Policy, expressly DEA Manual Chapter 66, Subsection Chapter 661
6612: 6612.6 - Management Review of Confidential Sources, 6612.62 Special Agent in
Charge: requires a Quarterly Review of Confidential Source Files by the Assistant Special
Agent in Charge (ASAC) and Special Agent in Charge (SAC).
624. Specifically, On a Quarterly basis, the SAC (or ASAC) shall conduct a review of
all active confidential sources with the supervisors under his command this review will cover
the following points: [points 1& 2 are not relevant] (3) Whether the debriefings have been
completed and fully reported, (4) Whether the appropriate initial and ongoing approval
requirement are being met, and (5) After completion of the review, the SAC shall certify in a
brief memorandum to AO Quarterly Review of Confidential Sources that this review has been
completed.
625. Importantly, the contents of the Confidential Source Files regarding the relevant
DEA Confidential Informants (CS Cesario and CS J ason) are required to contain DEA Reports
of Investigation and other documents (internal memoranda, notes, etc.) regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero (for consumption) by the DEA Informants.
626. Defendant Raymond Keith Brown (as ASAC) either approved or was aware of
the distribution of crack cocaine to Plaintiff, through Quarterly Review of the Confidential
Source Files of CS Cesario and CS J ason specifically annotated in the Memoranda titled
Quarterly Review of Confidential Source related to CS Cesario and CS J ason.
627. Most notably, Defendant Raymond Keith Brown recklessly (as ASAC) and
with deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed both to warn
the other Defendants to cease the wrongful acts and establish a prohibition of the distribution in
accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
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628. Furthermore, the Investigative Case Files regarding Operation Smack City are
required to contain the DEA Reports of Investigation, Forms, and Operational Plans regarding
distribution of Crack Cocaine to Plaintiff Aaron Romero in which Defendant Raymond Keith
Brown (as ASAC) approved or was aware.
629. Moreover, Defendant Raymond Keith Brown (as ASAC) recklessly and with
deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed both to warn the
other Defendants to cease the wrongful acts and to establish a prohibition of the distribution in
accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
630. Additionally, the Investigative Case Files regarding Operation Smack City are
required to contain Memoranda, Hard copies of emails, Letters, Teletypes, Handwritten Notes,
and/or other Forms of Correspondence or case file specific documents regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero in which Defendant Raymond Keith Brown (as
ASAC) approved or was aware.
631. Likewise, Defendant Raymond Keith Brown (as ASAC) recklessly and with
deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed to warn the other
Defendants to cease the wrongful acts and to establish a prohibition of the distribution in
accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
632. Finally and most notably, the contents of the Confidential Source Files regarding
the relevant DEA Confidential Informants (CS Cesario and CS J ason) are required to contain the
Written Authority Letter or other document from the United States Attorneys Office and the
Special Agent in Charge (or designee) that authorizes distribution of controlled substances
through DEA Confidential Informants to Plaintiff Aaron Romero and others in accordance
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with requirement of the Tier 1 Otherwise Illegal Activity requirement of the Attorney General
Guidelines Regarding Use of Confidential Informants.
633. Defendant Raymond Keith Brown (as ASAC) was aware of the existence of the
Written Authority Letter - or in contrast, Defendant Raymond Keith Brown (as ASAC) was
aware of the absence of the Written Authority Letter and Defendant Raymond Keith Brown
(as ASAC) recklessly and with deliberate indifference to the harm caused to Plaintiff Aaron
Romero, failed to obtain written authorization in the form of a Written Authority Letter from the
United States Attorney and the Special Agent in Charge in order to distribute controlled
substances (through the DEA Informants) to Plaintiff Aaron Romero in accordance with DEA
Policy (specifically, 6612.62(A)(4) Special Agent in Charge: Whether the appropriate initial or
ongoing approval requirements are being met) and to conform to the Attorney Generals
Guidelines.
634. In accordance with discretion of the Court under Federal Rules of Civil Procedure
Rule 56(f) in which a District Court has the discretion to grant leave to take further discovery
when the party opposing a motion for summary judgment cannot for good reason supply facts
essential to justify the challenge to the motion. See Franco-de-Jerez v. Burgos, 876 F.2d 1038
(1
st
Cir. 1989); see also Lion Boulos v. Wilson, 834 F.2d 504 (5
th
Cir. 1987)(discovery in a case
may be narrowly tailored to uncover only those facts needed to rule on the immunity claim).

COUNT XV
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
BODILY HARM UNDER BIVENS
AGAINST DEFENDANT JOSEPH M. ARABIT

635. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs as
though fully set forth herein.
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636. This cause of action is brought by plaintiff in his individual and personal capacity
against defendant J oseph M. Arabit for deprivation of Plaintiffs constitutional rights to be free
of bodily harm under the Due Process Clause of the Fifth Amendment to the United States
Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
637. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest in their own bodily security from violation by federal
government action.
638. In this instance, Defendant J oseph M. Arabit, individually and together with the
other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and
deliberate indifference regarding the purposeful relapse of the addiction to Crack Cocaine by
Plaintiff Aaron Romero. Indeed, the affirmative acts of Defendant Arabit caused severe
emotional and physical harm to Plaintiff Aaron Romero (harm to which Plaintiff Aaron Romero
otherwise would not have been exposed).
639. Defendant J oseph M. Arabit, individually and together with the other Defendants,
directly caused harm to Plaintiff Aaron Romero with the continued and intentional distribution of
Crack Cocaine to Plaintiff Aaron Romero (for consumption and in furtherance of the addiction)
in order to further the investigation.
640. Defendant J oseph M. Arabit, individually and together with the other Defendants,
directly caused elevated harm to Plaintiff Aaron Romero in the form of mental anguish and
suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-related charges
against Plaintiff Aaron Romero (EXHIBIT 1).
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641. Importantly, the contents of the Confidential Source Files regarding the relevant
DEA Confidential Informants (CS Cesario and CS J ason) are required to contain DEA Reports
of Investigation documents (internal memoranda, notes, etc) regarding distribution of Crack
Cocaine to Plaintiff Aaron Romero (for consumption) by the DEA Informants.
642. Upon information and belief, Defendant J oseph M. Arabit (as SAC) either
approved or was aware of the distribution of crack cocaine to Plaintiff, through Quarterly
Review of the Confidential Source Files of CS Cesario and CS J ason specifically annotated in
the Memoranda titled Quarterly Review of Confidential Source related to CS Cesario and CS
J ason.
643. Most notably, Defendant J oseph M. Arabit (as SAC) recklessly and with
deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed both to warn the
other Defendants to cease the wrongful acts and establish a prohibition of the distribution in
accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
644. Furthermore, the Investigative Case Files regarding Operation Smack City are
required to contain the DEA Reports of Investigation, Forms, and Operational Plans regarding
distribution of Crack Cocaine to Plaintiff Aaron Romero.
645. Upon information and belief Defendant J oseph M. Arabit (as SAC) approved or
was aware DEA Reports of Investigation, Forms, and Operational Plans regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero.
646. Upon information and belief Defendant J oseph M. Arabit (as SAC) recklessly and
with deliberate indifference to the harm caused to Plaintiff Aaron Romero, failed both to warn
the other Defendants to cease the wrongful acts and to establish a prohibition of the distribution
in accordance with DEA Policy and to conform to the Attorney Generals Guidelines.
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647. Additionally, the Investigative Case Files regarding Operation Smack City are
required to contain Memoranda, Hard copies of emails, Letters, Teletypes, Handwritten Notes,
and/or other Forms of Correspondence or case file specific documents regarding distribution of
Crack Cocaine to Plaintiff Aaron Romero.
648. Upon information and belief, Defendant J oseph M. Arabit (as SAC) approved or
was aware of investigative Case Files regarding Operation Smack City are required to contain
Memoranda, Hard copies of emails, Letters, Teletypes, Handwritten Notes, and/or other Forms
of Correspondence or case file specific documents regarding distribution of Crack Cocaine to
Plaintiff Aaron Romero.
649. Likewise, Defendant J oseph M. Arabit recklessly and with deliberate indifference
to the harm caused to Plaintiff Aaron Romero, failed to warn the other Defendants to cease the
wrongful acts and to establish a prohibition of the distribution in accordance with DEA Policy
and to conform to the Attorney Generals Guidelines.
650. Finally and most notably, the contents of the Confidential Source Files regarding
the relevant DEA Confidential Informants (CS Cesario and CS J ason) are required to contain the
Written Authority Letter or other document from the United States Attorneys Office and
Defendant J oseph M. Arabit (as the Special Agent in Charge - SAC) that authorizes
distribution of controlled substances through DEA Confidential Informants to Plaintiff
Aaron Romero and others in accordance with requirement of the Tier 1 Otherwise Illegal
Activity requirement of the Attorney General Guidelines Regarding Use of Confidential
Informants (see Footnote 33 above) in which Defendant J oseph M. Arabit (as SAC) was aware
of the existence of the Written Authority Letter (based on personal issuance of the Written
Authority Letter in conjunction with the United States Attorney)- or in contrast, Defendant
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J oseph M. Arabit (as SAC) was aware of the absence of the Written Authority Letter (through
failure of issuance of the Written Authority Letter as required by Defendant J oseph M. Arabit as
SAC).
651. Defendant J oseph M. Arabit (as SAC) recklessly and with deliberate indifference
to the harm caused to Plaintiff Aaron Romero, failed to obtain written authorization in the form
of a Written Authority Letter from the United States Attorney and subsequently issue the Written
Authority Letter (as SAC) to the other Defendants in order to distribute controlled substances
(through the DEA Informants) to Plaintiff Aaron Romero in accordance with DEA Policy
(specifically, 6612.62(A)(4) Special Agent in Charge: Whether the appropriate initial or
ongoing approval requirements are being met) and to conform to the Attorney Generals
Guidelines.
652. Defendant J oseph M. Arabit (as SAC) recklessly and with deliberate indifference
to the harm caused to Plaintiff Aaron Romero, failed both to warn the other Defendants to cease
the wrongful acts and to establish a prohibition of the distribution in accordance with DEA
Policy and to conform to the Attorney Generals Guidelines.
653. Defendant Arabit violated Plaintiffs constitutionally protected liberty interest in
bodily security by knowingly causing the deliberate relapse of Plaintiffs crack cocaine addiction
and the continued intentional distribution of crack cocaine to plaintiff.
654. In addition to the conduct already described herein, the Defendant (J oseph M.
Arabit) who acted under the color of Federal Law and is liable in his individual capacity caused
severe harm to Plaintiff Aaron Romero in the form of Constitutional Torts/Violations by causing
the deliberate relapse of Plaintiffs addiction to Crack Cocaine, in order to utilize that addiction
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to further the investigation into other drug traffickers in Las Vegas, New Mexico as part of
Operation Smack City.
655. Defendant Arabit caused severe emotional and physical harm to Plaintiff Aaron
Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in
clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
656. Defendant Arabits actions deprived Plaintiff of his Constitutionally protected
liberty interest in bodily integrity caused him harm.
657. Defendant Arabits gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
658. Defendant Arabits gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.


COUNT XVI
SUBSTANTIVE DUE PROCESS CLAIM TO BE FREE OF
DEPRIVATION OF LIBERTY INTERESTS WITHOUT DUE PROCESS OF
LAW UNDER BIVENS AGAINST DEFENDANT JOSEPH M. ARABIT

659. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
660. This claim is brought by plaintiff in his individual and personal capacity against
defendant Arabit for deprivation of Plaintiffs constitutional rights to be free from deprivation of
liberty interests without due process of law (or corruption of the processes of law that shocks the
conscience) under the Due Process Clause of the Fifth Amendment to the United States
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Constitution pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,
403 US 388 (1971).
661. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests
without due processes of law (or corruption of the processes of law that shocks the conscience)
by the Federal Government.
662. The actions of Defendant Arabit to allow the co-defendants to cause the
deliberate relapse of the addiction to Crack Cocaine by Plaintiff Aaron Romero and the
continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction) violated Plaintiffs Fifth Amendment
Constitutional right to be free from deprivation of liberty without due process of law as well as
shocks the conscience and offends the publics sense of morality and justice.
663. Moreover, the affirmative actions of Defendant Arabit to utilize the addiction to
Crack Cocaine by Plaintiff Aaron Romero in order to stack drug-related charges against
Plaintiff (EXHIBIT 1) with reckless and deliberate indifference also shocks the conscience and
is a clear violation of the Fifth Amendment (Right to Due Process Clause).
664. Defendant Arabits actions deprived Plaintiff of his Constitutionally
protected liberty interest in freedom from deprivation of liberty interests without due processes
of law and caused him harm.
665. Defendant Arabits gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
666. Defendant Arabits gross misconduct described herein entitles plaintiff to an
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award of punitive damages, in an amount to be determined at trial.



COUNT XVII
CLAIM FOR VIOLATION TO PLAINTIFFS FIRST AMENDMENT RIGHT TO
A CONTINUING RELATIONSHIP WITH HIS FAMILY
UNDER BIVENS AGAINST DEFENDANT JOSEPH M. ARABIT

667. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
668. This claim is brought by plaintiff in his individual and personal capacity against
defendant Arabit for deprivation of Plaintiffs constitutional right to a constitutional right to a
relationship with his family under the Due Process Clause of the Fifth Amendment and free
association clause of the First Amendment, pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 US 388 (1971).
669. The Constitution specifically the Fifth and First Amendments protects citizens
liberty interests in familial companionship from violation of federal government action.
670. Defendant Arabit violated Plaintiffs liberty interest in familial companionship by
knowingly authorizing co-defendants to cause plaintiffs relapse of his addiction to crack
cocaine, distributing crack cocaine to plaintiff and by stacking charges, as described herein.
Indeed, the affirmative actions of Defendant Arabit to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff with reckless and deliberate indifference and the
continued and intentional distribution of Crack Cocaine to Plaintiff (for consumption and in
furtherance of the addiction) by Defendant Arabit with reckless and deliberate indifference
caused the destruction of the familial companionship (family relationships) of Plaintiff (harm to
which Plaintiff otherwise would not have been exposed).
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671. Defendant Arabit knew or should have known that by distributing crack cocaine
to Plaintiff and deepening his addiction, plaintiffs familial relationships would be adversely
affected as his family had isolated him.
672. Defendant Arabits actions deprived Plaintiff of his Constitutionally
protected liberty interest in familial companionship.
673. Defendant Arabits gross misconduct as described herein was wanton, willful
and undertaken with reckless and conscious disregard for the substantial probability that those
acts and omissions could create a substantial risk of significant harm to plaintiff.
674. Defendant Arabits gross misconduct described herein entitles plaintiff to an
award of punitive damages, in an amount to be determined at trial.

QUALIFIED IMMUNITY DOES NOT APPLY TO JOSEPH M. ARABIT
675. Plaintiffs incorporate all of the preceding paragraphs as though fully set forth
herein.
676. The 1
st
Prong of the Saucier Test is the Constitutional Inquiry (establishment of
the Right).
677. The violation of Free Association Clause of First Amendment of Plaintiff Aaron
Romero is clear, specifically, the affirmative actions of Defendant J oseph M. Arabit, individually
and together with the other Defendants, to produce the deliberate relapse of the addiction to
Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference.
678. The violation of Free Association Clause is also established by the continued and
intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
furtherance of the addiction) by the Defendant J oseph M. Arabit with reckless and deliberate
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indifference (in direct violation of DEA Policy and in a manner that constituted a breach of the
Attorney Generals Guidelines).
679. These acts by Defendant Arabit caused the destruction of the familial
companionship (family relationships) of Plaintiff Aaron Romero (harm to which Plaintiff Aaron
Romero otherwise would not have been exposed) in clear violation of the Right to Free
Association Clause (Constitutional protection of citizens liberty interest in familial
companionship from violation of Federal Government actions) under the First Amendment.
680. The violation of the Due Process Clause of the Fifth Amendment of Plaintiff
Aaron Romero is clear, specifically, the affirmative actions of Defendant J oseph M. Arabit,
individually and together with the other Defendants, to produce the deliberate relapse of the
addiction to Crack Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference
and the continued and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for
consumption and in furtherance of the addiction).
681. The acts of Defendant J oseph M. Arabit were done with reckless and deliberate
indifference (in direct violation of DEA Policy and in a manner that constituted a breach of the
Attorney Generals Guidelines) caused severe emotional and physical harm to Plaintiff Aaron
Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed) in
clear in violation of the Fifth Amendment (Right to Due Process Clause Substantive Due
Process Constitutional protection of citizens liberty interest in bodily integrity).
682. Indeed, the affirmative actions of Defendant J oseph M. Arabit, individually and
together with the other Defendants, to produce the deliberate relapse of the addiction to Crack
Cocaine by Plaintiff Aaron Romero with reckless and deliberate indifference and the continued
and intentional distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption and in
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furtherance of the addiction) by the Defendant J oseph M. Arabit with reckless and deliberate
indifference shocks the conscience and offends the publics sense of decency and fair play.
683. In addition, the affirmative actions of Defendant J oseph M. Arabit, individually
and together with the other Defendants, to utilize the addiction to Crack Cocaine by Plaintiff
Aaron Romero in order to stack drug-related charges against Plaintiff Aaron Romero
(EXHIBIT 1) with reckless and deliberate indifference that also shocks the conscience is a clear
violation of the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in freedom from deprivation of those
liberty interests without due processes of law (or corruption of the processes of law that shocks
the conscience) by the Federal Government).
684. The 2nd Prong of the Saucier Test is the Qualified Immunity Inquiry
(reasonable official [Law Enforcement] comparison to the Constitutional Tort and clearly
established right at the time of the Constitutional violations).
685. The training and experience of Defendant J oseph M. Arabit as a DEA Special
Agent and as Special Agent in Charge, together with the collective training and experience of the
other DEA Special Agent Defendants, indicates the knowledge possessed by Defendant J oseph
M. Arabit at the time regarding the harms to individuals and families caused by severe addiction
to controlled substances that includes, but not limited to,
(i) destruction of physical and mental health to both the addict and to the addicts family
and friends, (ii) alienation and disintegration of family relationships and friendships, (iii)
mental anguish, humiliation, and suffering of the addict and family of the addict, (iv) loss
of income, benefits, and employment, and (v) collapse of the general or particular
aspirations, ambitions, and life purpose of the addict.
686. Moreover, the training and experience of Defendant J oseph M. Arabit as a DEA
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Special Agent and as Special Agent in Charge, together with the collective training and
experience of the other DEA Special Agent Defendants, indicates the knowledge of Defendant
J oseph M. Arabit at the time regarding the illegality of distribution of controlled substances in
general. Indeed, the very essence of the position of a Drug Enforcement Administration Special
Agent is to enforce the Federal Drug Laws of the United States in order to prevent such terrible
harms to individuals and families caused by severe addiction to controlled substances.
687. In this instance, Defendant J oseph M. Arabit, individually and together with the
other Defendants, directly caused harm to Plaintiff Aaron Romero through recklessness and
deliberate indifference regarding the purposeful relapse of the addiction to Crack Cocaine by
Plaintiff Aaron Romero and the continued and intentional distribution of Crack Cocaine to
Plaintiff Aaron Romero (for consumption and in furtherance of the addiction) by the Defendants
in order to further the investigation.
688. Moreover, Defendant J oseph M. Arabit, individually and together with the other
Defendants, directly caused elevated harm to Plaintiff Aaron Romero in the form of mental
anguish and suffering through use of the addiction of Plaintiff Aaron Romero to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
689. Plainly, the acts of Defendant J oseph M. Arabit, individually and together with
the other Defendants, are against fundamental law enforcement principles, DEA Training and
Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants, and
clearly established law of the Right to Due Process rooted in Supreme Court and Circuit
precedent, other Circuit Court precedent, and the First Amendment and Fifth Amendment to the
United States Constitution (at the time of the wrongful acts).
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690. As result, the aforementioned factors and clearly established law at the time
provided abundant notice to Defendant J oseph M. Arabit and the other Defendants regarding the
unlawful nature of the violations of the Constitutional Rights of Plaintiff Aaron Romero under
the First Amendment and Fifth Amendment as set forth herein.
691. Consequently, the acts of Defendant J oseph M. Arabit, individually and together
with the other Defendants, are conscience shocking and performed with recklessness and
deliberate indifference to the unlawful harms caused to Plaintiff Aaron Romero by the
Defendants, and in utter opposition to the core duty of an official bearing obligations under the
Due Process Clause to refrain from creating or elevating the risk of harm to others particularly
in a manner that shocks the conscience and corrupts the processes of law).
692. Objectively, notwithstanding the abuses of fundamental law enforcement
principles, breaches of agency policy and regulations, and violations of clearly established law
of the Right to Due Process rooted in Supreme Court and Circuit precedent, and the First
Amendment and Fifth Amendment to the United States Constitution,
(a) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through the purposeful relapse of a controlled
substance addiction of an individual in order to utilize the addiction to further an
investigation based on the premise of shocking the conscience of the official and
offending the publics sense of morality and justice regarding higher standards of duties
of Law Enforcement;
(b) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury through continued distribution of a controlled
substance to an individual in order to utilize the addiction to further an investigation
based on the premise of shocking the conscience of the official and offending the
publics sense of morality and justice regarding higher standards of duties of Law
Enforcement; and
(c) no reasonable Law Enforcement Official, Agent, or Officer possessing simple
knowledge of the harms of addiction to controlled substances would recklessly and with
deliberate indifference cause injury in the form of mental anguish through use of
addiction to controlled substances to stack drug-related charges based on the premise
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of shocking the conscience of the official and offending the publics sense of morality
and justice regarding higher standards of duties of Law Enforcement.

693. Therefore, Defendant J oseph M. Arabit is not entitled to Qualified Immunity
based on application of the Supreme Court mandated 2-Pronged Saucier Qualified Immunity
Test and Defendant J oseph M. Arabit is liable in her individual capacity to Plaintiff Aaron
Romero for Compensatory and Punitive Monetary Damages based on commission of the
Constitutional Torts set forth herein - under any fair reading of the United States Constitution,
Supreme Court controlling precedent, and Circuit Court binding opinions.
694. DEA Policy, expressly DEA Manual Chapter 66, Subsection Chapter 661
6612: 6612.6 - Management Review of Confidential Sources, 6612.62 Special Agent in
Charge: requires a Quarterly Review of Confidential Source Files by the Assistant Special
Agent in Charge (ASAC) and Special Agent in Charge (SAC), specifically, On a Quarterly
basis, the SAC (or ASAC) shall conduct a review of all active confidential sources with the
supervisors under his command this review will cover the following points: [points 1 & 2 are
not relevant] (3) Whether the debriefings have been completed and fully reported, (4) Whether
the appropriate initial and ongoing approval requirement are being met, and (5) After completion
of the review, the SAC shall certify in a brief memorandum to AO Quarterly Review of
Confidential Sources that this review has been completed.

COUNT XVIII
(CIVIL CONSPIRACY UNDER BIVENS AGAINST DEFENDANTS
CASTLEBERRY, WHELAN, MAYFIELD, BROWN AND ARABIT)
Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 US 388 (1971)

695. Plaintiff Aaron Romero incorporates by reference all preceding paragraphs
as though fully set forth herein.
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696. This claim is brought by plaintiff in his individual and personal capacity against
Defendants Castleberry, Whelan, Mayfield, Brown and Arabit for deprivation of Plaintiffs
constitutional right under the Due Process Clause of the Fifth Amendment to be free of
outrageous government conduct, pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 US 388 (1971).
697. The Constitution, specifically the Due Process Clause of the Fifth Amendment,
protects citizens liberty interest specifically, freedom from deprivation of liberty interests by
outrageous government conduct (or corruption of the processes of law that shocks the
conscience) by the Federal Government.
698. A Plaintiff may establish a Bivens action based on Conspiracy (Civil
Conspiracy) through demonstration of the existence of an express or implied agreement among
the Defendants to deprive him or her of the constitutional rights and an actual deprivation of
those constitutional rights resulting from the agreement. See Ting v. U.S., 927 F.2d 1504 (9
th

Cir. 1991).
54

699. Notably, the significance of a Conspiracy renders responsibility as a joint
tortfeasor for all damages to each participant in the wrongful act irrespective of whether or not
he was a direct actor and regardless of the degree of his activity. See Howard v. Superior

54
In an alternative theory (and in similarity with a Civil Conspiracy), the Concert of Action theory is based on an
agreement among a group of actors, whether explicitly or tacitly, to conduct risk-creating behavior and as a result,
each of the actors are held liable (severally and jointly) in the event the risk-creating behavior causes injury to
another, see Restatement (Second) of Torts 876(a)(1979). Additionally, the cases in which the Concert of Action
theory of liability has been applied involve conduct by a small number of individuals whose actions resulted in a
tort against a single Plaintiff, usually over a short span of time, see Chavers v. Gatke Corp., 132 Cal. Rptr. 2d 198,
204 (Cal. Ct. App. 2003) (quoting Sindell v. Abbot Labs, 607 P.2d 924 (Cal. 1980)). Also see Ryan v. Eli Lilly Co.,
514 F. Supp. 1004, 1015 (D.S.C. 1981) (noting that Concert of Action theory cases have involved an extremely
narrow fact pattern). In this Complaint, Plaintiff Aaron Romero states a Claim for Relief against the Defendants
(in their individual capacities) based on violations of the First Amendment, the Fifth Amendment, and Civil
Conspiracy under Bivens. However, in event the Discovery Process reveals an extremely narrow fact pattern,
Plaintiff Aaron Romero may ask leave from the Court to Amend the Complaint in order to replace the theory of
Civil Conspiracy with the theory of Concert of Action incorporating by reference all preceding allegations and
facts as though fully set forth therein.
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Court, 2 Ca. Rptr. 2d 575, 576 (Cal. Ct. App. 1992)(quoting Mox inc. v. Woods, 262 P.302, 303
(Cal. 1927)).
700. It is also important to note a conspiracy of two or more people involved in an
action presents a greater risk of harm than a single individual involved in the same action. See
29 Yale L.J . 795, 809-10 (1920)(The only difference between the civil liability for acts done in
pursuance of a conspiracy and for acts of the same character done by a single person is the
greater probability that such acts where [sic] done by many in combination will cause injury).
701. As set forth in the Restatement (Second) of Torts 876(a) (1979): For harm
resulting to a third person from the tortious conduct of another, one is subject to liability if he (a)
does a tortious act in concert with the other or pursuant to a common design with him and
876(b): For harm resulting to a third person from the tortious conduct of another, one is
subject to liability if he knows that the others conduct constitutes a breach of duty and gives
substantial assistance or encouragement to the other so to conduct himself.
702. In addition, in the State of New Mexico, the Court of Appeals defined Civil
Conspiracy as follows,
In order to state a claim for Civil Conspiracy, a Plaintiff must allege: (1) that conspiracy
between two or more individuals existed; (2) that specific wrongful acts were carried out
by the defendants pursuant to the conspiracy; and (3) that the plaintiff was damaged as a
result of such acts
See Valles v. Silverman, 135 N.M. 91 (2003), 84 P.3d 1056, 2004-NMCA-019 (cert. denied
2004).
703. The existence of a Civil Conspiracy must be pled by direct allegations or be
allegation of circumstances from which a conclusion of the existence of a conspiracy may be
reasonably inferred. Id.
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704. Accordingly, the Defendants are liable for Punitive Damages under Bivens in the
aggregate amount of $5,000,000.00 (5 million dollars) to Plaintiff Aaron Romero for
establishment and commission of the Civil Conspiracy (together with the individual Bivens
Claims for the Constitutional Torts relative to the First Amendment and Fifth Amendment as
set forth herein) to violate the First Amendment and Fifth Amendment Rights of Plaintiff Aaron
Romero based on the following:
a) State of New Mexico Civil Conspiracy Element (1) Conspiracy between two or more
individuals existed: Defendants J ohn R. Castleberry, Patricia G. Whelan aka Patricia
Yazzie, and Matthew B. Mayfield agreed, expressly or tacitly, to restart the addiction
to Crack Cocaine by Plaintiff Aaron Romero and Defendants J ohn R. Castleberry,
Patricia G. Whelan aka Patricia Yazzie, and Matthew B. Mayfield agreed, expressly
or tacitly, to distribute Crack Cocaine to Plaintiff Aaron Romero (for consumption)
on a consistent basis in order to utilize the addiction of Plaintiff Aaron Romero to
further the investigation (Operation Smack City) in Las Vegas, New Mexico and to
stack drug-related charges against Plaintiff Aaron Romero, and Defendants
Raymond Keith Brown and J oseph M. Arabit were aware of the distribution of
Crack Cocaine to Plaintiff Aaron Romero (for consumption) based on, but not limited
to, review of DEA Reports of Investigation relative the distribution of Crack Cocaine
to Plaintiff Aaron Romero (for consumption) and Defendants Raymond Keith
Brown and J oseph M. Arabit agreed, explicitly or tacitly, to continue the distribution
of Crack Cocaine to Plaintiff Aaron Romero (for consumption) through a failure to
set a prohibition of the harmful act in accordance with DEA Policy and the
Constitutional Liberty Interest of Plaintiff Aaron Romero - as set forth below in the
Overview and Summary Section, the Background of Plaintiff Aaron Romero Section,
and the Factual Basis Section.

b) State of New Mexico Civil Conspiracy Element (2) Specific wrongful acts were
carried out by the defendants pursuant to the conspiracy: Defendants J ohn R.
Castleberry, Patricia G. Whelan aka Patricia Yazzie, and Matthew B. Mayfield
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deliberately restarted the addiction to Crack Cocaine by Plaintiff Aaron Romero and
Defendants J ohn R. Castleberry, Patricia G. Whelan aka Patricia Yazzie, and
Matthew B. Mayfield continued to distribute Crack Cocaine to Plaintiff Aaron
Romero (for consumption) on a consistent basis in order to utilize the addiction of
Plaintiff Aaron Romero to further the investigation (Operation Smack City) in Las
Vegas, New Mexico and to stack drug-related charges against Plaintiff Aaron
Romero, and Defendants Raymond Keith Brown and J oseph M. Arabit were aware
of the distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption)
based on, but not limited to, review of DEA Reports of Investigation relative the
distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption) and
Defendants Raymond Keith Brown and J oseph M. Arabit continued to authorize
the distribution of Crack Cocaine to Plaintiff Aaron Romero (for consumption)
through a failure to set a prohibition of the harmful act in accordance with DEA
Policy and the Constitutional Liberty Interest of Plaintiff Aaron Romero - as set forth
below in the Overview and Summary Section, the Background of Plaintiff Aaron
Romero Section, and the Factual Basis Section.

c) State of New Mexico Civil Conspiracy Element (3) The plaintiff was damaged as a
result of such acts: The actions of Defendants J ohn R. Castleberry, Patricia G.
Whelan aka Patricia Yazzie, Matthew B. Mayfield, Raymond Keith Brown, and
J oseph M. Arabit to produce the deliberate relapse of the addiction to Crack Cocaine
by Plaintiff Aaron Romero and the continued and intentional distribution of Crack
Cocaine to Plaintiff Aaron Romero (for consumption) by the Defendants caused the
destruction of the familial companionship (family relationships) relative to Plaintiff
Aaron Romero in clear violation of the Right to Free Association Clause
(Constitutional protection of citizens liberty interest in familial companionship from
violation of Federal Government actions) under the First Amendment and caused
severe emotional and physical harm to Plaintiff Aaron Romero in violation of the
Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in bodily integrity). In addition,
the actions of the Defendants to utilize the addiction to Crack Cocaine by Plaintiff
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Aaron Romero in order to stack drug-related charges against Plaintiff Aaron


Romero is a clear violation of the Fifth Amendment (Right to Due Process Clause
Substantive Due Process Constitutional protection of citizens liberty interest in
freedom from oppression or corruption of the processes of law by the Federal
Government that shocks the conscience) - as set forth below in the Overview and
Summary Section, the Background of Plaintiff Aaron Romero Section, and the
Factual Basis Section.

705. In summary, the Constitution Torts/Violations and Civil Conspiracy set forth
herein arise from Outrageous Government Conduct and Agreement among the Defendants
regarding the intentional Distribution of Crack Cocaine to Plaintiff Aaron Romero (an individual
known by the Defendants to suffer historically from severe addiction to Crack Cocaine) in order
to cause the relapse of the addiction to Crack Cocaine by Plaintiff Aaron Romero (as illustrated
in the Background of Plaintiff Aaron Romero section and the Factual Section below) and in
order to stack drug related charges against Plaintiff Aaron Romero by the Defendants from
November 2011 through May 2012.
706. Notably, in United States v. Gardner, 658 F. Supp. 1573 (W.D. Penn. 1987),
another drug investigation with similar circumstances of Outrageous Government Conduct, the
Court stated, [t]he defendant is entitled to the granting of his Motion to Dismiss the Indictment
against him since the Court finds that the conduct of the law enforcement officials is so
outrageous that due process of law principles would bar the government from securing
conviction. Id.(citing United States v. Russell, 411 U.S. 423, 431-432, 93 S. Ct. 1637, 1642-
1643 (1973)); United States v. Jannotti, 673 F2d. 578, 606 (3
rd
Cir. 1982), and United State v.
Twigg, 588 F.2d 373, 379 (3
rd
Cir. 1978).
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707. In similarity with the Indictment against Plaintiff Aaron Romero (EXHIBIT 1)
and the subsequent dismissal of the Indictment of Plaintiff Aaron Romero (EXHIBIT 2) by the
United States Attorneys Office for the District of New Mexico, the Gardner case was dismissed
based on Outrageous Government Conduct of Law Enforcement.
708. The basis of Outrageous Government Conduct in the form of a Civil Conspiracy
(in-part) by the Defendants and Violations of First Amendment and Due Process Clause of the
Fifth Amendment (by the Defendants) relative to Plaintiff Aaron Romero (as set forth herein) is
well-established in Case Law and on the merits of this Bivens Action Complaint.
709. From on or about October 1, 2011 through August 2012, in the State of New
Mexico, the Defendants (J ohn R. Castleberry, Patricia G. Whelan aka Patricia G. Yazzie aka
Trish Yazzie, Matthew B. Mayfield, Raymond Keith Brown, and J oseph M. Arabit) as agents,
servants, joint venturers, partners, employees, employers, or representatives of each other that
involved participation in the acts and omissions, inter alia, alleged in Counts III XVIII
(Pursuant to Bivens) herein, were acting within the scope of their authority under the color of
Federal Law.
710. The defendants, as such agents, servants, joint venturers, partners, employees,
employers, or representatives with the tacit or express permission, agreement, and consent of
each other, to conspire, confederate, and collaborate with Recklessness and Deliberate
Indifference to produce the deliberate relapse of the addiction to Crack Cocaine by Plaintiff
Aaron Romero and subsequently continue the addiction to Crack Cocaine by Plaintiff Aaron
Romero through intentional distribution of Crack Cocaine (for consumption and in furtherance of
the addiction) to Plaintiff Aaron Romero by the Defendants (contrary to DEA Policy, the
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Attorney Generals Guidelines Regarding Use of Confidential Informants, fundamental law


enforcement principles, and clearly established law at the time)
711. The acts of the defendants were committed in order to expand and further the
investigation (Operation Smack City) in Las Vegas, New Mexico as well as to stack drug-
related charges against Plaintiff Aaron Romero (EXHIBIT 1).
712. The defendants acts resulted in
(1) the destruction of the familial companionship (family relationships) of Plaintiff Aaron
Romero (harm to which Plaintiff Aaron Romero otherwise would not have been exposed)
in clear violation of the Right to Free Association Clause (Constitutional protection of
citizens liberty interest in familial companionship from violation of Federal
Government actions) under the First Amendment,
(2) severe emotional and physical harm to Plaintiff Aaron Romero (harm to which
Plaintiff Aaron Romero otherwise would not have been exposed) in clear in violation of
the Fifth Amendment (Right to Due Process Clause Substantive Due Process
Constitutional protection of citizens liberty interest in bodily integrity) which shocks
the conscience and offends the publics sense of morality and justice, and
(3) the clear violation of the Fifth Amendment (Right to Due Process Clause
Substantive Due Process Constitutional protection of citizens liberty interest in
freedom from deprivation of those liberty interests without due processes of law (or
corruption of the processes of law that shocks the conscience) by the Federal
Government) that also affronts the communitys sense of decency and fair play (and
which enhanced greatly the mental anguish and suffering of Plaintiff Aaron Romero).


OTHER RELATED AND RELEVANT MISCONDUCT BY DEFEDANTS
DURING THE TIMES RELEVANT TO THIS COMPLAINT

713. Plaintiff incorporates all of the preceding paragraphs as though fully set forth
herein.
714. At all times relevant to this complaint, the United States and the Defendants,
individually and together, continued to utilize the addiction of others (specifically, Theresa Saiz
and Patrick Vigil individuals known by the United States and the Defendants to suffer from
severe addiction to controlled substances) to expand the investigation (Operation Smack City) in
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Las Vegas, New Mexico through distribution of Crack Cocaine to Theresa Saiz and Patrick Vigil
(for consumption and in furtherance of the addiction).
715. The defendants distribution of controlled substances to these known addicts was
done as broker payments for procurement of Crack Cocaine from other drug traffickers (contrary
to DEA Policy, the Attorney Generals Guidelines Regarding Use of Confidential Informants,
fundamental law enforcement principles, and clearly established law at the time).
716. On March 19, 2012, the United States (DEA Agent J ohn Castleberry) purchased
7.6 grams of Crack Cocaine (DEA Drug Exhibit 21) for $300.00 through Theresa Saiz from
Gilbert Aragon in Las Vegas, New Mexico.
55

717. In this undercover operation, the United States and the Defendants again
distributed Crack Cocaine to an individual (Theresa Saiz) suffering from addiction to controlled
substances based on acquisition of Crack Cocaine (DEA Drug Exhibit 21) through Theresa Saiz
from Gilbert Aragon and the subsequent distribution of Crack Cocaine to Theresa Saiz by the
United States and the Defendants (expressly, DEA Agent J ohn Castleberry) as payment for the
procurement of Crack Cocaine.
56

718. Specifically, on the recording of the transaction, Theresa Saiz states, J ust give
me a little piece, and well call it even.
719. DEA Agent J ohn Castleberry replied, All right I may hit you up (inaudible).

55
recorded as DEA Audio Exhibit N-32 and memorialized on Transcript N-32. Notably, Gilbert Aragon was charged in the
Indictment with Aaron Romero and the charges were later dismissed by the US Attorneys Office inferentially based on the
Outrageous Government Conduct of the United States and the Defendants.
56
GilbertAragonwasnotpresentduringthetransactionbetweenDEAAgentJohnCastleberryandTheresaSaiz
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720. In response, Theresa Saiz stated, You tell me what you want to give me and
DEA Agent J ohn Castleberry answered, No, you go ahead, you did me the favorIm from out
of townIm on your turf.
721. In response, Theresa Saiz stated, I took that from you right therethat cool?
DEA Agent J ohn Castleberry replied, Yeah, yupI hope itll be good.
722. In reply, Theresa Saiz stated, Oh fuck yeah this shits good and a short time
later, Theresa Saiz reiterated, And one hit of this, youre fucking off the wall, dude. In
response, DEA Agent J ohn Castleberry stated, All right.
723. Consequently, in this instance, the United States and the Defendants distributed
Crack Cocaine to Theresa Saiz (for consumption by Theresa Saiz) as payment for procurement
of the Crack Cocaine (from Gilbert Aragon).
724. Most notably, the United States and the Defendants were aware of the addiction
to controlled substances by Theresa Saiz based demonstrably on the narratives outlined herein
and the statements of Theresa Saiz to DEA Agent J ohn Castleberry regarding personal addiction
of Theresa Saiz to controlled substances during the course of the undercover transaction.
725. Furthermore, the United States and the Defendants, through DEA Agent J ohn
Castleberry, elevated the awareness of the United States and the Defendants regarding the
addiction to controlled substances by Theresa Saiz by stating (DEA Agent J ohn Castleberry),
Yeah, yup.I hope it will be good referring to the resulting euphoric (illegal and harmful)
high that Theresa Saiz would experience through consumption of the Crack Cocaine to feed
her addiction that had been distributed to Theresa Saiz by the United States and the Defendants a
few seconds earlier.
726. In the DEA Form-6 Report of Investigation titled Acquisition of Exhibit 21
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167

and N-32 from Theresa Saiz on March 19, 2012 dated March 22, 2012 by Special Agent J ohn
Castleberry regarding the undercover purchase of ounce of Crack Cocaine through Theresa
Saiz from Gilbert Aragon on March 19, 2012, DEA Agent J ohn Castleberry did NOT depict the
payment of Crack Cocaine to Theresa Saiz for procurement of the Crack Cocaine.
727. In contrast, DEA Agent J ohn Castleberry omitted the distribution of Crack
Cocaine to Theresa Saiz in the DEA Report of Investigation.
728. Consequently, the United States and the Defendants misrepresented the actual
amount of Crack Cocaine acquired through Theresa Saiz from Gilbert Aragon during the subject
undercover transaction (contrary to DEA Policy, fundamental law enforcement principles, and
clearly established law at the time regarding alteration and destruction of evidence).
729. As a result, the United States and the Defendants again attempted to conceal the
overall umbrella strategy of utilizing addiction to controlled substances by individuals
(specifically, Plaintiff Aaron Romero, Theresa Saiz, Patrick Vigil, and others not yet identified
or known) to expand the investigation (Operation Smack City) in Las Vegas, New Mexico
through distribution of Crack Cocaine to those individuals for consumption and in furtherance of
the addiction.
57

730. On March 20, 2012, DEA Agent J ohn Castleberry purchased 5.6 grams of
Crack Cocaine (DEA Drug Exhibit 22) for $270.00 through Theresa Saiz from an unidentified
source of supply in Las Vegas, New Mexico.

57
TheinformationandevidencewereextractedfromCaseNumberMM120011DEAForm6Reportof
InvestigationtitledAcquisitionofExhibit21andN32fromTheresaSaizonMarch19,2012dated032212by
SpecialAgentJohnCastleberryandapprovedbyGroupSupervisorMatthewMayfield;CaseNumberMM120011
DEAForm7dated032112regardingExhibit21bySpecialAgentJohnCastleberryandapprovedbyGroup
SupervisorMatthewMayfield;andDEAAudioExhibitN32.Thereportsandaudiorecordingareavailabletothe
CourtthroughCounselforPlaintiffAaronRomero.Furthermore,thereportsandaudiorecordingsweregenerated
bytheUnitedStatesandtherefore,thereportsandaudiorecordingsareinpossessionoftheUnitedStates.
Case 1:14-cv-00640-MV-RHS Document 1 Filed 07/14/14 Page 167 of 175
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731. In this undercover operation, the United States and the Defendants again
distributed Crack Cocaine to an individual (Theresa Saiz) suffering from addiction to controlled
substances based on acquisition of Crack Cocaine (DEA Drug Exhibit 22) through Theresa Saiz
from an unidentified source of suppy.
732. The United States and Defendants distributed of Crack Cocaine to Theresa Saiz
as payment for the procurement of Crack Cocaine.
58

733. Specifically, the recording of this transaction depicts Theresa Saiz stating,
Okay, this is what they had left they gave you 13 and in response, DEA Agent J ohn
Castleberry stated, 13? Theresa Saiz then replied, Yeah.
734. However, in DEA Form-6 Report of Investigation titled Acquisition of Exhibit
22 and N-33 from Theresa Saiz on March 20, 2012 dated 03-20-12, DEA Agent J ohn
Castleberry depicted, Saiz removed approximately 12 crack rocks wrapped in tin foil and gave
them to SA Castleberry.
735. Consequently, the United States and the Defendants depicted falsely the amount
of Crack Cocaine as 12 Crack Rocks rather than the actual amount of 13 Rocks of Crack
Cocaine in the DEA Report of Investigation.
736. Moreover, the United States and the Defendants misrepresented the actual
amount of Crack Cocaine acquired through Theresa Saiz from an unidentified source of supply
during the subject undercover transaction (contrary to DEA Policy, fundamental law
enforcement principles, and clearly established law at the time regarding alteration and
destruction of evidence).
737. As a result, the United States and the Defendants again attempted to conceal the

58
TheunidentifiedsourceofsupplywasnotpresentduringthetransactionbetweenDEAAgentJohnCastleberry
andTheresaSaiz
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169

overall umbrella strategy of utilizing addiction to controlled substances by individuals


(specifically, Plaintiff Aaron Romero, Theresa Saiz, Patrick Vigil, and others not yet identified
or known) through distribution of Crack Cocaine to those individuals for consumption and in
furtherance of the addiction in order to expand the investigation (Operation Smack City) in Las
Vegas, New Mexico.
738. Notably, a few minutes later in the conversation, Theresa Saiz asked, but could
you pass me one (referring to the distribution of a single Rock of Crack Cocaine to Theresa
Saiz by DEA Agent J ohn Castleberry) and in response, DEA Agent J ohn Castleberry stated,
Yeah absolutely.
739. At this point in the audio recording, a plastic or other material rustling sound is
audible.
740. Theresa Saiz continued by stating, So I could do it before my son gets home.I
dont like to do it in front of them and in reply, DEA Agent J ohn Castleberry stated
emphatically, Oh yeah! In response, Theresa Saiz stated, Im just gonna take one, J ohn and
DEA Agent J ohn Castleberry answered, Yeah. At this point in the audio recording, a plastic
or other material rustling sound is audible again.
741. Overall, in this instance, the United States and the Defendants distributed Crack
Cocaine to Theresa Saiz (for consumption by Theresa Saiz) as payment for procurement of the
Crack Cocaine (from an unidentified source of supply).
742. Most notably, the United States and the Defendants were aware of the addiction
to controlled substances by Theresa Saiz based on the statements of Theresa Saiz to DEA
Agent J ohn Castleberry regarding the personal addiction of Theresa Saiz to controlled substances
during the course of the previous undercover transaction on March 19, 2012 (regarding DEA
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Drug Exhibit 21) and during the subject undercover transaction on March 20, 2012 (regarding
DEA Drug Exhibit 22), and the investigation as a whole.
743. Furthermore, DEA Agent J ohn Castleberry again elevated the awareness and
knowledge of the United States and the Defendants regarding the addiction to controlled
substances by Theresa Saiz by stating (DEA Agent J ohn Castleberry), Oh Yeah emphatically
in response to the statement of Theresa Saiz So I could do it before my son gets home.I dont
like to do it in front of them referring to the surreptitious nature of the consumption of the
Crack Cocaine by Theresa Saiz that had been distributed to Theresa Saiz by the United States
and the Defendants a few seconds earlier.
59

744. On May 9, 2012, CS Cesario (referred to as CS in the DEA Report) and DEA
Agent Patricia G. Whelan purchased 1 gram of Crack Cocaine (DEA Drug Exhibit 33) for
$100.00 through Plaintiff Pat Vigil from an unidentified source of supply in Las Vegas, New
Mexico - recorded as DEA Audio Exhibit N-49.
60

745. In this undercover operation, the United States and the Defendants again
distributed Crack Cocaine to an individual (Patrick Vigil) suffering from addiction to controlled
substances based on acquisition of Crack Cocaine (DEA Drug Exhibit 33) through Patrick Vigil
from an unidentified source of supply by CS Cesario and DEA Agent Patricia G. Whelan.

59
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 22 and N-33 from Theresa Saiz on March 20, 2012 dated 03-20-12 by
Special Agent J ohn Castleberry and approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011
DEA Form-7 dated 03-21-12 regarding Exhibit 22 by Special Agent John Castleberry and approved by Group
Supervisor Matthew Mayfield; and DEA Audio Exhibit N-33. The reports and audio recording are available to the
Court through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated
by the United States and therefore, the reports and audio recordings are in possession of the United States.
60
On 03-20-13, the charges relative to Pat Vigil were dismissed by the US Attorneys Office inferentially based
on the Outrageous Government Conduct of the United States and the Defendants.

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746. The subsequent distribution of Crack Cocaine to Patrick Vigil by CS Cesario and
DEA Agent Patricia G. Whelan was payment for the procurement of Crack Cocaine.
61

747. Specifically, in DEA Form-6 Report of Investigation titled Acquisition of
Exhibit 33 by CS (redacted) and DEA Agent Patricia Yazzie [Patricia G. Whelan] from Pat Vigil
on May 9, 2012 dated May 10, 2012 (by Special Agent Patricia G. Whelan), DEA Agent
Patricia G. Whelan writes, Upon getting into the UC vehicle, Vigil handed the CS a tin foil ball
as witnessed by SA Yazzie Vigil also told the CS he/she needed to hook him up for
brokering the deal CS confirmed and the CS opened the tin foil and broke off a small piece
from crack rock and provided it to Vigil.
748. Furthermore, during the undercover transaction with Patrick Vigil (at
approximate Time Mark 14.05 of DEA Audio Exhibit N-49), CS Cesario referred to Patrick
Vigil by stating (to DEA Agent Patricia G. Whelan) that So Crackheads do it for crack, right
and in response, DEA Agent Patricia G. Whelan stated, I know, its just amazing.
62

749. Consequently, in this instance, the United States and the Defendants distributed
Crack Cocaine to Patrick Vigil (for consumption by Patrick Vigil) as payment for procurement
of the Crack Cocaine (from an unidentified source of supply).

61
The unidentified source of supply was not present during the transaction between CS Cesario, DEA Agent Patricia Yazzi, and
Defendant Pat Vigil.

62
The information and evidence were extracted from Case Number MM-12-0011 - DEA Form-6 Report of
Investigation titled Acquisition of Exhibit 33 by CS (redacted) and DEA Agent Patricia Yazzie [Patricia G.
Whelan] from Pat Vigil on May 9, 2012 dated 05-10-12 by Special Agent Patricia Yazzie [Patricia G. Whelan] and
approved by Group Supervisor Matthew Mayfield; Case Number MM-12-0011 - DEA Form-7 dated 05-09-12
regarding Exhibit 33 by Special Agent Patricia Yazzie (Patricia G. Whelan] and approved by Group Supervisor
Matthew Mayfield; and DEA Audio Exhibit N-49. The reports and audio recording are available to the Court
through Counsel for Plaintiff Aaron Romero. Furthermore, the reports and audio recordings were generated by the
United States and therefore, the reports and audio recordings are in possession of the United States.

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172

750. Most notably, the United States and the Defendants were aware of the addiction
to controlled substances by Patrick Vigil based demonstrably on the narratives outlined herein
and the statements of CS Cesario to DEA Agent Patricia Yazzie regarding the personal addiction
of Patrick Vigil to controlled substances during the course of the undercover operation,
specifically in DEA Audio N-49.
JURY TRIAL DEMAND
751. Plaintiff Aaron Romero requests a trial by jury in this matter relative to the
Bivens action set forth herein regarding Constitutional Torts/Violations committed against
Plaintiff Aaron Romero by the Defendants in Las Vegas, New Mexico from November 30, 2011
through August 2012. In order to address the deprivation of Plaintiff Aaron Romeros liberty
interests in the form of Constitutional Torts committed by the Defendants, Plaintiff Aaron
Romero requests the Court to schedule and preside over the Bivens action matter first - prior to
proceeding on the claims against Defendant United States of America pursuant to the FTCA.

PRAYER
WHEREFORE, Plaintiff Aaron Romero prays for judgment and relief against the United
States under the Federal Tort Claims Act (FTCA) in the Sum Certain Amount of $3,500,000.00
($3.5 million dollars) as follows:
A. Compensatory Damages to compensate Plaintiff Aaron Romero for loss of income,
future wages and salary, and present and future medical expenses incurred.
B. Non-Economic Damages to compensate Plaintiff Aaron Romero for loss of
Consortium, love, familial relationships, and companionship, loss of guidance from familial
relationships, loss of society, physical pain, suffering, mental anguish, sorrow, disability, stress
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and shock experienced by Plaintiff Aaron Romero (to include the value of continued suffering by
Plaintiff Aaron Romero) as a result of the commission of the Tortious Acts of Intentional
Infliction of Emotional Distress and Negligence by the United States.
C. For other general and special damages available under law.
D. For such other and further relief as the Court deems just and proper.
Plaintiff Aaron Romero further prays for separate judgment and relief against the
Defendants in their individual capacities under Bivens in the aggregate amount of $5,000,000.00
($5 million dollars) or an amount attributable to each Defendant at trial as follows:
A. Compensatory Damages to compensate Plaintiff Aaron Romero for loss of income,
future wages and salary, and present and future medical expenses incurred.
B. Punitive Damages to compensate Plaintiff Aaron Romero for loss of
Consortium, love, familial relationships, and companionship, loss of guidance from familial
relationships, loss of society, physical pain, suffering, mental anguish, sorrow, disability, stress
and shock experienced by Plaintiff Aaron Romero (to include the value of continued suffering by
Plaintiff Aaron Romero) as a result of the commission of the Constitutional Torts/Violations by
the Defendants.
C. For other general and special damages available under law.
D. For such other and further relief as the Court deems just and proper.

PRESERVATION OF RECORDS AND EVIDENCE
Finally, Plaintiff Aaron Romero respectfully requests the Court to issue a Preservation
Order to the United States and to each Defendant to preserve and not to alter, destroy, remove,
conceal, erase, delete, recycle, insert data, append newly created documents or files, or otherwise
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change, amend, add, or omit any and all evidence and information regarding the Investigative
Files (Federico Gonzalez et al. DEA Case Number MM-12-0011) and related Investigative Case
Files and Prosecution Files relative to Operation Smack City and related investigations as well as
the Confidential Source Files concerning CS Cesario (known to the United States and the
Defendant as an established DEA Confidential Source utilized in Operation Smack City and
related investigations), CS Jason (known to the United States and the Defendant as an
established DEA Confidential Source utilized in Operation Smack City and related
investigations), and other DEA Confidential Sources utilized in Operation Smack City or related
investigations to include DEA Confidential Source (CS) Edward Quintana (known to the
United States and the Defendant as an established DEA Confidential Source utilized in
Operation Smack City and related investigations) which includes but not limited to all
(1) documents, reports, forms, evidence, electronic files, communications (to include
letters, internal and external teletypes, internal and external memoranda, internal and
external emails in hard copy and electronic format, notations, facsimiles, and any other
electronic or paper communication formats) regarding Operation Smack City and other
related investigations,

(2) any and all contents of the DEA Investigative Case File(s) regarding the investigation
Operation Smack City and other related investigations,

(3) any and all contents, to include Naddis printouts, of each DEA-5 File
J acket/Confidential Source File(s) of CS Cesario, CS J ason, CS Edward Quintana, and
any other Confidential Source File relative to Operation Smack City or related
investigations that are stored at the Albuquerque District Office, El Paso Field Division,
and DEA Headquarter (AMRI),

(4) copies of the Sign-out Logs for each Confidential Source File location of CS
Cesario, CS J ason, CS Edward Quintana, and any other Confidential Source File relative
to Operation Smack City or related investigations which indicates the date, Confidential
Source Number, time-in and time-out, and the name and signature of the person
reviewing the file,

(5) any and all contents of the DEA Investigative Case File(s) regarding Aaron Romero et
al. and Anthony Greenier et al.,

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(7) and any and all contents of the Personnel Files, to include Performance Ratings and
Standards of Conduct Certifications (DEA Form 460 or equivalent) and any
applicable Office of Professional Responsibility (OPR) Files, of Special Agent in
Charge (SAC) J oseph M. Arabit (Defendant), Assistant Special Agent in Charge
(ASAC) Raymond Keith Brown (Defendant), Group Supervisor (GS) Matthew B.
Mayfield (Defendant), Special Agent J ohn R. Castleberry (Defendant), and Special
Agent Patricia G. Whelan aka Patricia G. Yazzie aka Trish Yazzie (Defendant).


DATED this 14
th
Day of July, 2014.


Respectfully Submitted,

LAW OFFICE OF ERLINDA O. J OHNSON
By __electronically filed on 7/14/14____________
Erlinda O. J ohnson, Esq.
1110 2
nd
Street, NW
Albuquerque, New Mexico 87102
Telephone: 505-792-4048
Facsimile: 505-792-7268
Email: erlindajohnsonlaw@comcast.net
Attorney for Plaintiff Aaron Romero

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) No. CR 12-1909 J B
)
AARON ROMERO, )
)
Defendant. )
ORDER TO DISMISS WITHOUT PREJUDICE CHARGES OF
INDICTMENT AGAINST DEFENDANT AARON ROMERO
THIS MATTER having come before the Court on the United States motion to dismiss
without prejudice Counts 1, 2, 4, 6, 7, 8, 9, and 13 and the forfeiture allegation of the Indictment
(Doc. 2) as to defendant Aaron Romero and the Court being fully advised in the premises, FINDS
that the motion is well-taken and should be granted.
NOW, THEREFORE, IT IS HEREBY ORDERED that the above-listed counts and the
forfeiture allegation of the Indictment (Doc. 2) in this case are hereby dismissed without prejudice
as to defendant Aaron Romero.

UNITED STATES DISTRICT J UDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) Cr. No. 12-1912 WJ
)
PATRICK VIGIL, )
)
Defendant. )
ORDER TO DISMISS WITHOUT PREJUDICE
INDICTMENT AGAINST DEFENDANT PATRICK VIGIL
THIS MATTER having come before the Court on the United States motion to dismiss
without prejudice the Indictment (Doc. 2) as to defendant Patrick Vigil and the Court being fully
advised in the premises, FINDS that the motion is well-taken and should be granted.
NOW, THEREFORE, IT IS HEREBY ORDERED that the Indictment (Doc. 2) in this
case is hereby dismissed without prejudice as to defendant Patrick Vigil.

THE HONORABLE WILLIAM P. JOHNSON
UNITED STATES DISTRICT JUDGE
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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA, )
)
Plaintiff, )
)
vs. ) No. CR 12-1909 J B
)
RUBY ARAGON, )
)
Defendant. )
ORDER TO DISMISS WITHOUT PREJUDICE CHARGE OF
INDICTMENT AGAINST DEFENDANT RUBY ARAGON
THIS MATTER having come before the Court on the United States motion to dismiss
without prejudice Count 5 of the Indictment (Doc. 2) as to defendant Ruby Aragon and the Court
being fully advised in the premises, FINDS that the motion is well-taken and should be granted.
NOW, THEREFORE, IT IS HEREBY ORDERED that the above-listed count of the
Indictment (Doc. 2) in this case is hereby dismissed without prejudice as to defendant Ruby Aragon.

UNITED STATES DISTRICT J UDGE
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