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.