Appeals Court Upholds Border Agent Convictions
July 29, 2008 - 10:02 AMA federal appeals court in New Orleans on Monday upheld most of the convictions that gave two former Border Patrol agents lengthy prison sentences.
Ignacio Ramos and Jose Compean received 11- and 12-year sentences, respectively, for shooting an illegal alien drug smuggler in the buttocks as he ran toward the Mexican border.
The U.S. 5th Circuit Court of Appeals in New Orleans vacated the obstruction charges that alleged the agents tried to cover up the crime and sent their case back for re-sentencing.
Their sentences are unlikely to be reduced, however, because the appeals court affirmed their conviction on one of the most controversial grounds -- discharging a firearm during the commission of a crime, which carries a mandatory minimum sentence of 10 years.
The incident happened on February 17, 2005, when Ramos and Compean encountered Osvaldo Aldrete-Davila as he tried to smuggle 743 pounds of marijuana from Mexico into Fabens, Texas. As he tried to flee, Compean fired his gun 14 times but did not hit Aldrete-Davila. Ramos shot once and hit him in the buttocks. Both agents said they saw him holding a gun.
The controversial case has prompted congressional hearings and calls for President Bush to pardon the two men.
The appeals court decision was a long time coming. A three-judge panel heard the case in December 2007, and it was expected to have a decision within 60 days, according to lawyers involved in the case.
“For the most part, the trial of this case was about credibility, and although the jury could have gone either way, it chose not to believe the defendants’ version of the crucial events of February 17. The trial of the case was conducted fairly and without reversible error,” the appeals panel said in a 46-page opinion.
The opinion said there were no legal grounds to dismiss the firearms charge.
“[T]here is no question but that a police officer’s unjustifiable shooting of a victim qualifies as a crime of violence; there is no question but that a police officer’s shooting a victim who poses no physical threat to the safety of the officer or the public is unjustifiable; there is no question but that during this conduct each of the defendants used a firearm,” the opinion said. “The facts relating to these postulates were decided by the jury based upon credibility determinations that we, as an appellate court, may not disturb.”
The other major contention by the defense was that the subsequent drug smuggling offense committed by Aldrete-Davila in October 2005 -- while he still had immunity to testify against the border agents -- should have been admitted as evidence in the trial. The defense argued that Aldrete-Davila was not an amateur “mule” in the drug trade, as federal prosecutors argued, and therefore probably had a gun as the agents claimed.
Aldrete-Davila -Davila was arrested in October 2007 for the offense he committed two years earlier. In April this year, he pleaded guilty to attempting to smuggle more than 700 pounds of marijuana into the country. His sentencing will be on August 6.
The evidence of the October 2005 drug smuggling was not compelling enough to have vacated the jury’s verdict, the appeals court ruled.
“The evidence would show one incident a number of months later—not earlier—in which he was acting in a similar low-level position as a transporter of a load of drugs. And it would have shown no indication that he was carrying a weapon on this occasion,” the court ruled. “… Aldrete-Davila -Davila’s guilt of a subsidiary, unadjudicated crime could quickly have become a mini-trial within the trial and a proxy for the defendants’ guilt, a point relied on by the district court in excluding the evidence.”
U.S. Attorney Johnny Sutton of the Western District of Texas, whose office prosecuted the case, was pleased with the outcome.
“With today’s decision, I would ask that those who have criticized the prosecution, generally relying upon misleading and at times false versions of what happened, will re-evaluate their positions in light of the court record, including the description of the evidence provided by the Fifth Circuit opinion,” Sutton said in a statement.
“I believe that those who understand the record and the evidence introduced at trial will realize that the actions of Compean and Ramos in shooting an unarmed and fleeing suspect were serious crimes which had to be prosecuted in order to maintain the rule of law.”
However Rep. Dana Rohrabacher (R-Calif.) one of the leading advocates for the agents in Congress was appalled at the ruling.
“Unfortunately, the court has sided with the prosecutors who threw the book at the good guys and the good guys have lost this round,” Rohrabacher said in a statement. “I renew my call for the President to do the right thing and immediately pardon Ramos and Compean.”
David Botsford, Ramos' attorney, was glad the cover-up charges were dropped, even though it didn’t provide much in the way of relief.
“They never should have been in there, and that colored the jury's entire consideration of this case,” Botsford told the Associated Press.
Bob Baskett, Compean's lawyer, said this is not the end of the case.
“I think the court is wrong in a couple of the major points and we will be filing a motion for rehearing about those points,” he told the AP.