EDITOR’S NOTE: WND has obtained redacted copies of the appellate briefs filed in the case of convicted Border Patrol agents Ignacio Ramos and Jose Compean.

The two men are in solitary confinement in federal prison, serving 11- and 12-year sentences respectively over a Feb. 17, 2005, incident in which they fired on Osvaldo Aldrete-Davila, an illegal Mexican alien who was fleeing back into Mexico after smuggling 750 pounds of marijuana over the Mexican border near Fabens, Texas.

In their appeal, Ramos was represented by attorney David L. Botsford. Compean was represented by attorneys Robert T. Basket and Edgar A. Mason.

The Ramos-Compean appeal is scheduled to be heard by the Fifth Circuit U.S. Court of Appeals in Louisiana next Monday.

WND was unable to obtain a copy of the government’s brief filed in the appeal, and the briefs filed remain under seal, unavailable for public examination.

The copies of the appellate briefs examined by WND were redacted prior to being filed in the Fifth Circuit under seal. Removed were references to materials the District Court ordered sealed, which presumably included a second smuggling offense in October 2005 in which Aldrete-Davila brought another 750 pound load of marijuana across the border.

Aldrete-Davila evidently made the second smuggling attempt while he was under immunity from prosecutor U.S. Attorney Johnny Sutton to testify in the Ramos-Compean trial. He apparently used a border-crossing pass issued by the Department of Homeland Security.

References to arguments in the Ramos-Compean brief are made without distinguishing which lawyer made the argument.

The appellate court is hearing the appeals together and will make a decision whether to reverse the convictions and demand a new trial.

This is the first of a three part WND series analyzing the appellate briefs filed in the case.

Ignacio Ramos and Jose Compean

The appellant briefs filed on behalf of convicted Border Patrol agents Ignacio Ramos and Jose Compean argue the case was “overzealously prosecuted by the government,” thereby sending “a message to every law enforcement agent that if you shoot in the line of duty and cannot prove that you were justified in using deadly force – regardless of whether you were mistaken in your belief – you will be prosecuted and receive at least 10 years incarceration under 18 U.S.C. Section 924(c), stacked on top of other sentences.”

WND previously reported 18 U.S.C. Section 924(c) was written to increase the penalties when a violent criminal, such as a drug trafficker or a rapist, carries or uses a weapon during the commission of a crime.

The appellants argue the law was never written to be applied to law enforcement officers who discharge their weapons within the scope of their official duties.

The appellant briefs note the legislative history of 18 U.S.C. Section 924(c) was set forth in Muscarello v. United States, 524 U.S. 125 (1998), in which Justice Stephen Breyer, delivering the opinion of the Supreme Court wrote, “And the provision’s chief legislative sponsor has said that the provision seeks ‘to persuade the man who is tempted to commit a Federal felony to leave his gun at home.'”

So, the appellant briefs argue Ramos and Compean were not given “fair notice,” any reason in advance to believe the harsh mandatory 10-year sentencing penalties of 18 U.S.C. Section 924(c) would be applied to them, as law enforcement officers, discharging their weapons based “upon reasonably apprehended sense of necessity as it appeared at the time.”

“To apply 18 U.S.C. Section 924(c) in this case (and like cases),” the appellants argue, “would have an unwarranted and dangerous effect on law enforcement officers everywhere. It would mean officers act at peril of lengthy federal sentences every time they draw a weapon. It very well could mean that officers will hesitate to act for fear of legal action against them, with potentially deadly results to themselves and others.”

The appellants also argue the government prosecuted Ramos and Compean as criminals for what amounted to no more than violations of administrative policy, which at most were civil infractions of law warranting only minor penalties, not 11- and 12-year federal prison sentences for criminal violations.

Again, this argument supports previous assertions that, at most, failure to report shooting at the drug smuggler, Osvaldo Aldrete-Davila, should have resulted in suspension without pay for a few days.

The appellants wrote, “The government’s entire case was premised upon extensive direct examination of virtually every witness it called regarding violations of four Border Patrol policies on Feb. 17, 2005,” namely:

  • The policy requiring agents to obtain permission from a supervisor before engaging in a “pursuit of a vehicle, and thereafter prepare a “pursuit form” reflecting the particulars of the situation;

  • The policy outlining the requirements for the use of deadly force, which does not contain language regarding an officer’s mistaken belief that the use of force was necessary under all of the circumstances;

  • The policy requiring an oral report of the discharge of a weapon to a supervisor within one hour (regardless of whether the agent discharged the weapon or merely heard the discharge or even heard about the discharge) and the corresponding significant incident report which the supervisor would generate after such a report; and

  • The policy requiring the Border Patrol’s “Sector Evidence Team” to investigate any significant incident report, including the discharge of a weapon.

The appellants object that the government used these policies to form the basis of a criminal prosecution, even though the regulations only demanded administrative penalties.

So, while the policies may have been “admissible for limited purposes,” the appellants argued “the government focused upon them and used them to bootstrap administrative violations into criminal violations.”

This argument, they contend, undermines the government’s main contention, denying that Ramos and Compean had done anything criminal, even conceding government arguments that Ramos and Compean failed to file oral reports of the shootings.

The appellants wrote:

The government consistently and persistently elicited testimony regarding violations of four Border Patrol policies on Feb. 17, 2005, which violations formed the basis not only of some of the counts, but also formed the platform for the government’s opening and closing arguments. This constituted a due process violation because it allowed the government to bootstrap violations of policies into criminal convictions, thereby impermissibly infecting the very purpose for which the trial was being conducted.

The appellants stressed, “From the opening statement onward, every Border Patrol agent who was called by the government was cross examined about one or more of the four policies.”

The appellants searched the 10 volumes of the trial testimony and arguments and found the dominant emphasis was placed on alleged violations of these policies:

  • The word “policy” is used 267 times;

  • The word “policies” 33 times;

  • The word “regulation” 34 times;

  • The word “rules” 74 times;

  • The word “report” 746 times;

  • The word “pursuit” 429 times;

  • The word “high speed” 57 times;

  • The words “failure to report” 30 times;

  • The words “duty to report” 13 times;

  • The words “sector evidence” 83 times;

  • The word “force” 195 times;

  • The words “deadly force” 34 times; and

  • The word “weapon” 289 times.

The appellants’ lawyers relied on United States v. Christo, 614 F.2d 486 (5th Cir. 1980), a prosecution for misapplication of bank funds, in which the court held that criminal convictions based upon civil violations constituted plain error.

The result, the appellants’ lawyers argued, was to deny Ramos and Compean due process rights to a fair trial.

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Previous stories:

‘Pardon Ramos and Compean now!’

Arrest prompts call for release of Ramos, Compean

Bush won’t get involved in Ramos, Compean review

Lawmaker: Terrorists treated better than Ramos, Compean

Texas deputy freed from prison

Jailed Texas deputy scheduled for release

Gil Hernandez ‘fears for his life’

Border Patrol agent vindicated

Sheriff sees pattern in border agents’ cases

Feds seeking 7 years for another Texas cop

Justice urged to release Ramos-Compean documents

Records prompt call for new Ramos-Compean trial

Congressman: Bush ‘doesn’t give a damn’

Cop called ‘double agent’ in Ramos-Compean case

Ramos, Compean release on bond nixed

Border agents’ case inspires song

Feinstein still probing Ramos-Compean case

Judicial Watch seeks records in Ramos-Compean case

Sheriff: Deputy prosecuted by Mexico’s demand

Senate hearings on Ramos-Compean postponed

Smuggler’s 2nd drug case confirmed by accomplice

Ramos attorney calls for mistrial

Smuggler’s 2nd delivery of marijuana confirmed

Congressman: Probe Mexico’s role in prosecutions

Mexico demanded U.S. prosecute sheriff, agents

Discrepancies in case against Border Patrol unresolved

Compean reports reading half of Bible already

How cozy was Border Patrol with smuggler?

Border Patrol agents fired for changing testimonies

Drug smuggler left cell phone in van

Border-agent investigator had tie to smuggler

Author of DHS border-agent report lied to Congress

Officials urged to resign for lie about border agents

Government admits lying about jailed border agents

Imprisoned border agent did report shooting

Imprisoned border agent beaten by fellow inmates

Prosecutor had evidence against drug smuggler

Poe seeks ‘public’ documents on border agents

Prosecutor accused of hiding smuggler’s 2nd drug bust

Homeland Security memos contradict U.S. attorney

Uproar over border agents to get White House review

Feds ‘knew smuggler’ in Border Patrol case

Ballistics data don’t support charge against border agents

Funds set up for Border Patrol agents

Congressman: Feds stonewalling on border agents

Border agent’s wife at State of the Union

Revolt builds as Republicans seek to toss border agents’ convictions

Border Patrol agent held in solitary confinement

Imprisoned agent’s wife: President is a hypocrite

Border agents’ prosecutor responds to critics

Border agents sent to prison

Border agents plead for ‘Christmas pardon’

White House clarifies ‘nonsensical’ comment’

12 congressmen demand pardon for border agents

Snow says question on agents’ prison time ‘nonsensical’

Border Patrol agents sentenced to prison

National Guard units to be armed, close to the border

Gang expert backs Tancredo charge

National Guard units to be armed, close to the border

No militarization of U.S.-Mex border

Not even killer flu to shut U.S. border

Chertoff downplays Mexican military incursions

‘Shoot illegals’ comment earns host FCC complaint

Another armed incursion on U.S.-Mexico border

Texas border standoff with Mexican military

Border Patrol warned: Brace for violence

Feds to border agents: Assassins targeting you

Armed standoff on Rio Grande

Border sheriff warns: We’re overwhelmed

Mexican drug commandos expand ops in 6 U.S. states

It’s war between cops in Mexico

The threat from Mexico

‘It’s a war’ along Mexican border

Mexican commandos seek control of border

Mexican commandos new threat on border

Border Patrol agents shot in Laredo

Mexicans shoot at Border Patrol

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