Legal Brief Says Border Agents Were Charged With 'Non-Existent Crime'

July 7, 2008 - 8:23 PM

(CNSNews.com) - Two Border Patrol agents whose prosecution and sentences to lengthy prison terms triggered a political storm this year may have been charged with a "non-existent crime," according to a legal brief submitted to a federal appeals court in May, and obtained by Cybercast News Service.

Ignacio Ramos and Jose Compean are serving 11- and 12-year sentences respectively for shooting and wounding a Mexican national who was trying to escape after attempting to smuggle 743 pounds of marijuana across the Mexico-Texas border in February 2005.

Although they were convicted on 11 counts, the crime carrying the lengthiest penalty was for the "discharge of a firearm in relation to a crime of violence," a violation of section 924(c)(1)(a) of the U.S. Code. It carries a minimum 10-year prison sentence.

Cybercast News Service
obtained a copy of an amicus curiae ("friend of the court") legal brief filed by Reps. Walter Jones (R-N.C.), Virgil Goode (R-Va.), and Ted Poe (R-Texas) in the former agents' appeal before the Fifth Circuit Court in New Orleans.

They accuse the prosecution of "creating a purported criminal offense never enacted into law by Congress," and of charging Ramos and Compean with a "non-existent crime."

Simply discharging a firearm near a violent crime is not illegal, the brief argued, saying the law they were convicted under is not a law at all, but a sentencing factor used to help a jury determine jail time after a conviction.

The brief cited several cases as precedent, including United States v. Barton in which the Fifth Circuit Court ruled that "discharging a firearm during and in relation to a crime of violence" could be used only as a sentencing factor, not as an element of a conviction. In Harris v. United States, the Supreme Court made a similar ruling.

The brief argued that, for a 10-year sentence, a defendant must be convicted under the specific terms laid out in section 924(c)(1)(a) (see section).

This provision is applicable, the section says, to "any person who, during and in relation to any crime of violence or drug trafficking crime ... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm ..." If, and only if, these conditions apply can a defendant be sentenced to ten years in prison for the "discharge" of a firearm.

The brief argued that the shooting of drug smuggler Osvaldo Aldrete-Davila was not "in relation to" the drug crime because Ramos and Compean were themselves not participants in the drug crime.

Furthermore, Border Patrol Agents are authorized to carry and use firearms as law enforcement officers.

"By narrowing the issue to the discharge of the firearm," the brief said, "the prosecution and the trial court actions adversely affected the fairness of the entire trial, depriving defendants of any opportunity to present to the jury that they were using and carrying their firearms during and in relation to their employment as Border Agents."

The brief also criticized the prosecution.

"The criminal code cannot be treated by the prosecution as a legal chameleon, changing elements to fit the circumstances of the case that the government, in its discretion, wants to present to the judge and jury," it said.

One of the brief's authors, Larry Pratt of Gun Owners for America, told Cybercast News Service that this case could set an alarming precedent under which any law enforcement officer who fired a gun at the scene of a drug crime could be prosecuted under Section 924(c).

He also criticized U.S. Attorney Johnny Sutton, the lead prosecutor in the case.

"What [Sutton] was apparently trying to do is avoid the little detail that there was no underlying crime of carrying a gun because [Ramos and Compean] were authorized to carry guns," Pratt said. "So I think he tried to slide around and use the sentencing provision as an underlying crime."

'Perverse'

Rep. Jones conceded in a statement that Ramos and Compean may have been guilty of violating Border Patrol policy by shooting Aldrete-Davila and failing to file a subsequent report.

But Jones also blasted Sutton, saying the prosecutor "had no business charging [Ramos and Compean] with a crime that Congress clearly designed to apply only to the individuals who are possessing, using, or carrying firearms for the purpose of facilitating the commission of a crime - not to federal law enforcement agents."

"How perverse it is that this statute is now being used against law enforcement officers who were trying to stop drug trafficking," he added.

Sutton told the Senate Judiciary Committee on July 17 that it was his trial team that made the decision to bring the "discharge of a firearm in relation to a crime of violence" charge, and that he was not consulted on the issue.

"We have a deliberative process that goes on inside our office that I cannot describe," he said.

Sutton could not be reached for comment, and his spokeswoman said she did not think anyone else in the office would comment on the brief until it responds to the appeal in early August.

Asked about the appeal, Pratt said he was worried that it may be denied because the cited evidence had not been presented previously.

"The thing that concerns me most is that, because [the alleged misuse of Section 924(c)] wasn't brought up at the first trial, the Fifth Circuit Court could play legal games and say, well, too bad," he said.

Still, Pratt described himself as "hopeful" and warned that Sutton's tactics would eventually catch up with him.

"[Sutton] can only hide in the tall grass for so long and, Lord willing, the lawnmower's on the way in," he said.

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