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 last of a three part WND series analyzing the appellate briefs filed in the case. Part Two examined the officers’ fear for their lives and Part One concerned defense lawyers’ allegations of an overzealous prosecution.
Ignacio Ramos and Jose Compean
Briefs filed in an appeal seeking to overturn the prison sentences of convicted U.S. Border Patrol agents Ignacio Ramos and Jose Compean allege the prosecution’s star witness, drug smuggler Osvaldo Aldrete-Davila, “had 5 million reasons” to lie.
WND has reported Aldrete-Davila hired a U.S. lawyer and sued the U.S. Border Patrol for $5 million for violating his civil rights in the shooting incident with Ramos and Compean at the border on Feb. 17, 2005.
“It is doubtful that absent the criminal conviction, Davila could overcome a defense motion for summary judgment based on qualified good faith immunity in his $5.0 million dollar civil law suit against the United States,” the appellants’ briefs commented.
“There are only three witnesses who testified whether Davila had anything in his left hand while he was running across the vega and turning back toward Compean: Davila, Compean and Ramos,” the briefs continued.
“Davila, of course, fled and escaped,” the briefs added. “Thus, the real truth will never be known whether he had something in his left hand as he turned around toward the agents.”
“Davila had 5 million reasons to lie,” the briefs concluded, “and was certainly prompted by his lifelong friend, Rene Sanchez, to seek immunity, obtain counsel and sue the United States.”
WND previously has reported Border Patrol agent Rene Sanchez in Wilcox, Ariz., was the first to learn Aldrete-Davila was the drug smuggler in the Feb. 17, 2005, incident involving Ramos and Compean.
Rene Sanchez grew up in San Isidro, Mexico, as did Aldrete-Davila. He learned of Aldrete-Davila’s involvement through telephone conversations between his mother-in-law and Aldrete-Davila’s mother.
A major issue raised in the appeal is the argument the immunity extended to Aldrete-Davila waived Aldrete-Davila’s Fifth Amendment rights to refuse to testify about other drug incidents, including the alleged “second load” in October 2005 involving another 750 pounds of marijuana brought to a safe house operated by Cipriano Ortiz-Hernandez in Clint, Texas.
WND also has reported U.S. Attorney Johnny Sutton, who directed the prosecution of the agents, had been notified eleven months before the start of the Ramos-Compean trial by DEA and DHS investigative reports that named Aldrete-Davila as the drug smuggler in the case of the drugs brought to Ortiz-Hernandez’s safe house in October 2005.
Sutton decided to continue pursuing the Ramos-Compean cases even though the credibility of the star prosecution witness against Ramos and Compean apparently was compromised by the October 2005 incident, which happened while Aldrete-Davila had immunity from Sutton to testify at the Ramos-Compean trial as well as a border pass from the Department of Homeland Security.
Instead, prosecutor Debra Kanof successfully persuaded Judge Cardone at the Ramos-Compean trial to withhold all information regarding the second load from the jury, even threatening the families of the agents with prosecution should they leak word of the second load to the press.
At issue in the Ramos-Compean appeal is whether Aldrete-Davila could refuse to answer questions about the second load, so as to avoid incriminating himself with his testimony.
WND has reported Aldrete-Davila received a “letter of limited use immunity” signed by U.S. Attorney J. Brandy Gardes on March 16, 2005.
“Use immunity” involves a narrowly granted form of immunity in that the words of the witness cannot be used by prosecutors to charge or convict the witness of the crime for which the testimony immunity has been given.
The complication in this case comes from DHS Special Agent Christopher Sanchez, a different person than Border Patrol agent Rene Sanchez who knew Aldrete-Davila from growing up in San Ysidro, Mexico.
DHS Special Agent Christopher Sanchez delivered the letter of limited immunity to Davila and explained it to Davila in Spanish at the American consulate in Mexico.
In so doing, Sanchez gave Davila the impression that he was getting what is known as “transactional immunity,” or immunity for any and all actions Aldrete-Davila may have committed on Feb. 17, 2005.
At the trial, prosecutor Debra Kanof repeatedly sought to limit Aldrete-Davila’s testimony, arguing he would risk incriminating himself if the cross-examination strayed into Aldrete-Davila’s drug smuggling history, including the October 2005 second load, for which he was arrested only after the two agents were convicted and imprisoned.
This was important because Aldrete-Davila was the only witness at the Ramos-Compean trial who contradicted the testimony of Ramos and Compean that they saw and believed Davila had a gun or shiny object in his left hand as he was turning around toward the Border Patrol agents as he fled across the vega back to Mexico.
Also, at the trial, Aldrete-Davila had minimized his role in the incident, attempting to portray himself as the victim.
Aldrete-Davila told the jury under oath that he was not a professional drug smuggler, but he agreed to this one incident because he had lost his commercial driver’s license in Mexico and he needed money to buy medicine for his sick mother.
Aldrete-Davila testified that he was paid $1,000 to walk across the Rio Grand and find a van with the keys in the vehicle. He was told he would meet someone in Texas who would instruct him where to drive the van.
He further testified he had no idea what was in the bundles and he did not know how Mexican drug cartels packed drugs, if they came in big bundles, or if this load might have been cocaine, or some other drug.
The prosecution also objected that the trial was not about Davila’s drug-trafficking or about him being a “bad guy,” arguing to keep from the jury even information about the amount of marijuana involved in the Feb. 17, 2005, incident.
Ramos and Compean had argued at trial they should not be denied confrontation and cross-examination as to Davila’s “deal” with the government and that his illegal entry into the U.S. and the amount of marijuana being smuggled had an impact upon potential punishment and the nature of the immunity grant Aldrete-Davila had been given.
“Davila was less than candid with the jury in discussing his expertise in narcotics dealing,” the appellate attorneys wrote.
“He testified he simply walked across the river, got into the van with the keys already in it, drove to a point as instructed, did not know the identity of the person he was to meet, did not know the destination of the marijuana, and did not know how marijuana was processed and packaged,” the appellate attorneys continued. “Such testimony left a false impression that he was a novice.”
The appellant attorneys objected that many of these issues were relevant to jury determinations of the reasonableness of the suspicions held by Ramos and Compean, which then would support their actions.
“The suspicions of the Border Patrol agents were reasonable,” the appellant attorneys wrote. “While it is true that Ramos did not have actual knowledge of the content or amount of drugs in the van at the time of the incident, he did possess a reasonable suspicion to detain and inquire at the border under the Fourth Amendment.”
“Indeed, Compean’s first impression when he observed the activities at the river to the effect that there was a load of drugs being smuggled into the United States was right on target,” the attorneys continued.
Compean had testified that he first suspected a drug run was in the making on Feb. 17, 2005, when he observed around 1:00 p.m. a white sedan on the Mexican side of the river, riding low, as if the trunk was heavily loaded.
Next, Compean observed two people coming out of the river on the Mexican side and he observed marks in the river bed where something had been dragged out of the river. Nearby was a van.
When Compean heard surveillance sensors going off, he gave a radio alert that the van was leaving the area at a high rate of speed.
The appellants’ lawyers argued it was reasonable for Ramos and Compean to believe drug dealers would protect their illegal cargo and their vehicles, even if violence were necessary.
The concerns of the Border Patrol agents that they were dealing with a drug smuggler hauling a large load of illegal drugs was heightened by Aldrete-Davila’s reckless and dangerous flight, the appeal documents argue.
The appellants’ lawyers argued questions about the value and weight of the drugs went directly to Aldrete-Davila’s motive to flee, to protect his investment and to escape prosecution for his crime, and justified Ramos and Compean’s reasonable belief that the perpetrator might engage in violence to do so.
Kanof argued to Judge Cardone that Aldrete-Davila would invoke his Fifth Amendment privileges against self-incrimination and refuse to answer any questions about his involvement in the October 2005 second load involving Ortiz-Hernandez.
Defense attorneys at the trial argued such cross-examination was critical to impeaching Aldrete-Davila’s testimony he was an inexperienced “first-time” drug offender who was a victim of his own unfortunate circumstances losing his commercial driver’s license and thus being unable to earn the money he needed to buy medicine for his sick mother.
“Obviously, Davila’s credibility was the key to the prosecution’s case,” the appellants’ attorneys wrote, “without him, there could be no conviction.”
The appellants’ attorneys cited United States v. Jimenez, 464 F3d 555, 562-63 (5th Cir. 2006) to argue that the trial court’s ruling that Ramos and Compean could not cross-examine, or adduce testimony from Aldrete-Davila concerning his prior experience, or cross-examine Aldrete-Davila about his subsequent experience in the October 2005 second load precluded Ramos and Compean from establishing facts vital to their case.
The appellants’ attorneys argued these rulings by the trial court denied Ramos and Compean their rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.
The trial court erred, the attorneys argued, in restricting the ability of the Ramos and Compean defense attorneys from questioning Davila as to his involvement in drug dealings, “which was an inseparable part of the criminal episode.”
Further, by minimizing and denying any guilty knowledge, Davila opened the door for proof of his involvement in the October 2005 second load, which would demonstrate in depth his knowledge and deep involvement in drug smuggling operations, they said.
The appellants’ attorneys also cited Kastigar v. United States, 406 U.S. 441 (1972), in which the Supreme Court held that a grant of use immunity was co-extensive with the Fifth Amendment.
In other words, even if Aldrete-Davila had incriminated himself by testifying about the October 2005 second load, the government would have been prohibited from using those statements to prosecute him.
The appellants’ attorneys stressed that Kastigar v. United States established Aldrete-Davila could not use his Fifth Amendment privileges against self-incrimination as a shield to hide behind, once he had been granted use immunity.
The protection established by letter of limited use immunity signed by U.S. Attorney J. Brandy Gardes on March 16, 2005, would itself protect anything Aldrete-Davila testified about at the Ramos-Compean trial.
“In order to protect the witness and render the statute constitutional, the Supreme Court in Kastigar v. United States held that in a subsequent criminal prosecution of a person who had testified under a grant of immunity, the prosecution bears the burden of proving affirmatively that evidence used or proposed to be used to obtain an indictment at trial and at sentencing is ‘derived from a legitimate source wholly independent’ of the immunized testimony and information.”
The argument is the District Court at the trial of Ramos and Compean abused its discretion by holding that Davila could properly take the Fifth Amendment as to the events of the Oct. 2005 second load.
Further, the appellants’ briefs alleged Judge Cardone erred at trial by concluding Aldrete-Davila could exercise a Fifth Amendment self-incrimination privilege after receiving use immunity.
The appellants’ briefs charged Cardone’s decision “was influenced by the prosecutor’s inaccurate if not misleading representations of the immunity agreement.”
As WND has previously reported, Andy Ramirez, chairman of the Friends of the Border Patrol, has gone so far as to charge that Sutton and Kanof suborned perjury by allowing Aldrete-Davila to tell his patently false story at trial.