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U.S. calls border agent as witness for its defense; Initially said Rhodes beat Chinese woman

Robert Rhodes lost his job, his house, his retirement savings and a good part of his reputation when the federal government, from Colin Powell on down, accused him of instigating an international dispute with China.

Rhodes beat back a criminal prosecution that accused him of beating up a woman tourist from China, a prosecution his attorney called one of the most aggressive and vicious in decades.

He also won back his job, with full back pay, as a border patrol agent.

The only thing left for Rhodes was his civil suit against the government, the last leg in his three-legged plan for becoming whole again.

A federal judge dismissed Rhodes' suits in early March, a development not entirely surprising, except for what happened next.

The government, the same government that charged Rhodes criminally, fired him from his job and fought his civil claims, is calling on him to be a witness in its defense against the woman it once accused Rhodes of assaulting.

"He's their star witness," said Steven M. Cohen of Hogan & Willig, Rhodes' longtime attorney. "Now it's the gospel according to Rob."

Cohen is not shy about suggesting the federal government is being hypocritical. How can it initially paint Rhodes as the aggressor, a violent criminal capable of assaulting an innocent tourist from China, and then turn around and say he was simply doing his job as a border patrol officer?

One of the ironies of Rhodes winning his job back -- he returned in 2008 after four years without pay -- is that he's now in the position of having to testify on the government's behalf. As a government employee, he has no choice.

Nevertheless, he can't help questioning how the government handled his arrest of Zhao Yan on that July night in 2004.

"What has been taken away from me is lost forever," Rhodes said during a recent interview with The Buffalo News. "I believe there are people in Washington who used me for the sake of U.S.-China relations, and I still feel that way, even today."

>Political pressure

The accounts of what happened the night he and Zhao crossed paths differ greatly, but one thing is clear. Over the course of a few days, maybe even hours, the federal government's focus switched from Zhao to Rhodes.

It's also no secret the change in focus came after top U.S. and Chinese officials intervened on Zhao's behalf.

Within days of Zhao's confrontation with customs officers, Secretary of State Colin L. Powell and Chinese Foreign Minister Li Zhaoxing had discussed the incident and agreed on the need for an investigation.

Chinese newspapers ran photos of Zhao, her face bruised and eyes swollen nearly shut, with quotes from her suggesting the United States was a "barbarous" and "brutal" place.

Rhodes was charged a few days later with using excessive force and was suspended from his job. Investigators said other officers saw Rhodes throw Zhao into a wall, grab her hair and strike her head on the ground.

"We regret the apparent mistreatment of a Chinese national by a U.S. customs officer in Niagara Falls," the U.S. State Department said in a statement at the time.

Washington, eager to calm the outrage in China, went out of its way to cast the spotlight on Rhodes.

Homeland Security Secretary Tom Ridge publicly apologized to Zhao and described her altercation on the Rainbow Bridge as "a horrible incident" that was "totally unacceptable."

Within weeks, a federal grand jury had indicted Rhodes on charges of violating Zhao's civil rights, again citing the eyewitness testimony of his fellow officers.

"They went after Rob at every turn," Cohen says. "Rob was the object of one of the most aggressive prosecutions in decades."

But, in the end, Rhodes won.

A jury acquitted him of the criminal charges in September 2005 after a three-week trial and less than four hours of deliberation.

Despite his acquittal, Rhodes had to fight another three years to get back his job as a border patrol officer. A federal arbitrator ordered him returned to work in June 2008.

>The price he paid

He's been back on the job for four years, and he takes pride in knowing he took on the government and won.

He also knows the price he paid was huge.

"I lost my house. I was brought before the world and villainized. I had to decimate my 401(k) to pay legal bills," he said. "Customs made every attempt to ostracize me."

Even worse, perhaps, was the impact on Rhodes' health. He suffers from kidney disease, an illness he said his doctors attribute to the stress of an eight-year legal battle with his employer -- the United States of America.

Rhodes says there was never any doubt he would prove his innocence. But proving that the government threw him under the bus as part of a campaign to appease the Chinese government is another thing.

He made that exact claim as part of a wrongful termination suit against the government, one of two civil suits he still has pending on appeal in federal court. He also is suing three of the federal agents who investigated the allegations against him eight years ago.

From the day he was charged, Rhodes has argued that he was targeted because of his sexual orientation -- he's been openly gay for years -- and because the government needed a political scapegoat.

He also says in his court papers that Zhao was never properly investigated and that she may have a criminal history. He said Zhao was once suspected by federal investigators of being a "snakehead," a term used for people who smuggle illegal aliens into the country.

>Intent to harm at issue

Chief U.S. District Judge William M. Skretny dismissed both of Rhodes' suits last month and concluded that, even if the court accepted his argument that the United States succumbed to pressure from China, Rhodes did not prove there was an effort to harm him.

Rhodes is appealing both decisions, but, while he waits for a higher-court ruling, he finds himself in the position of testifying for the same government that fought him.

Cohen said the government compounded the insult by waiting until after Skretny ruled against Rhodes in both suits.

"The ink isn't even dry," he said, "and they contact Rob and say, 'We want you to be our star witness.' "

Cohen says the government's flip-flop on what happened that night in 2004 could cause problems for its defense in the Zhao suit. He also said it could help an appeals court reconsider Skretny's rulings against Rhodes in his civil suits.

"Absolutely," Cohen said. "I think we have a good argument to make. How can the U.S. attorney take two opposite positions?"

U.S. Attorney William J. Hochul Jr., who was not in charge of the local office at the time of the Rhodes prosecution, said he could not comment on the case or its outcome. He did, however, defend the government's reliance on Rhodes in the Zhao case.

"The government uses witnesses to get at the facts," Hochul said. "The government can never pick witnesses. Witnesses tend to be picked by the time and location of an incident."

>Zhao's reaction

In court papers, Hochul's staff is now taking the position that Zhao may have caused her own injuries by resisting the efforts by Rhodes and other officers to detain her.

Zhao, who was deposed by government attorneys in August, says the government's defense is a new one that is being "sprung on her" and therefore should not be allowed by the court.

"We deny the new allegations," said Philipp L. Rimmler, one of Zhao's Buffalo attorneys.

Zhao, in her court papers, dismisses the government's new defense as untimely and suggests the bottom line is the beating she suffered on the Rainbow Bridge.

"We don't think he acted reasonably under the circumstances," Rimmler said of Rhodes' actions that night in 2004.

Rhodes is confident his account of what happened that night will be viewed as believable.

After he was deposed by government attorneys three weeks ago, Rhodes said, they thanked him for his testimony and said it could prove crucial to their case.

"She said, 'You did amazing,' " Rhodes said of the lawyer handling the case, "and because of my testimony, they're taking it to trial."

In Rhodes' eyes, it's one more chance to tell the truth and regain some of what he's lost.

email: pfairbanks@buffnews.com