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Wrong law used to convict Border agents

What crime is committed when two Border Patrol agents shoot in the buttocks a fleeing drug smuggler who has abandoned a van containing 743 pounds of marijuana?

Rep. Walter B. Jones, R-N.C., has on record a letter written to Attorney General Alberto Gonzales on Oct.11, 2006, charging that Border Patrol Agents Ignacio Ramos and Jose Alonso Compean were charged under a statute that did not apply to the facts of the case. As previously reported by WND, the interview I conducted on Friday, Jan. 17, 2007 with the prosecutor, U.S. Attorney Johnny Sutton, adds strong support to Rep. Jones's contention.

Jones notes that Ramos and Compean were convicted of violating 18 U.S.C. Section 924(c). This statute 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 the crime. Law enforcement officers, including Border Patrol agents, are issued weapons by the Border Patrol to carry in the normal pursuit of their duties.

Ironically, Ramos and Compean were trying to apprehend an escaping suspect who was a drug smuggler. How is it that a law meant to punish armed drug smugglers is applied to prosecute the two Border Patrol agents who attempted to apprehend a person U.S. Attorney Johnny Sutton properly characterizes as a drug-dealing ''dirt-bag?''

Jones notes that 18 U.S.C. Section 18 U.S.C. Section 924(c) has only been applied to law enforcement officers who themselves commit heinous crimes, such as sexual assault, outside the scope of their official duties. As Jones writes, ''Ramos and Compean were within the scope of their official duties when they fired at an illegal drug smuggler they believe to be armed and dangerous.''

Besides, Sutton never argues that Ramos and Compean were committing a crime they aggravated by discharging weapons. Sutton's contention is that Ramos and Compean's crime was that they discharged weapons at all. This is a distinct fact situation from the one 18 U.S.C. Section 924(c) was passed to involve.

Consider this exchange from my interview with Sutton:

    WND: But one of the things here is that the law was passed, as I understand it, to basically punish criminals who in the process of committing crimes also fire weapons. The law was never intended to punish law enforcement officers who may have fired their weapons inappropriately when somebody else was committing a crime.

    Sutton: The law applies to everyone. And there is no exception for law enforcement officers made.

Sutton misses the point. Sure, 18 U.S.C. Section 924(c) applies to law enforcement officers, but only when law enforcement officers themselves smuggle drugs or commit rapes and carry a firearm in the commission of those crimes. 18 U.S.C. Section 924(c) was never written to define the rights and responsibilities of officers who carry weapons in the normal course of their law enforcement duties and decide to discharge those weapons at fleeing drug dealers.

Again, let's examine the next exchange in the interview with Sutton:

    WND: But the original intent of that law, as I understand it, was to increase the punishment for criminals who when perpetrating their crimes discharge weapons. Is that not correct?

    Sutton: I can't speak to what the Congressional intent was. All I can speak to is what the law says and the law says what it says, and it doesn't make any exception for law enforcement officers. It says that if you commit a crime of violence and you use a firearm during a crime of violence, it's ten year mandatory minimum stacked on top of what time you already have. No exception is made for law enforcement officers. The judge applied the law and if people want to change the law, then you can talk to their representatives.

What crime were Ramos and Compean committing, during which they decided to fire their weapons? Surely, Sutton does not consider it a crime for Border Patrol agents to stop and seek to arrest a person they suspect of smuggling drugs across the border.

As Jones rightly concludes, ''The application of Section 924(c) in this case is overly broad, setting a dangerous precedent of application to law enforcement officers trying to act within the scope of their official duties.'' Jones is correct. On appeal, the convictions should be dismissed because the prosecutor charged these Border Patrol agents under a law whose scope was clearly misapplied.

The real issue in this case should have been whether Ramos and Compean had justification for discharging their weapons in this situation. The applicable law would seem to first involve the INS Firearms Policy. In that policy, there appears to be the following.

    Section 7(A). Discharging a firearm shall be done only with the intent of stopping a person or animal from continuing the threatening behavior which justifies the use of deadly force. When deadly force is justified, an officer may use any level of force necessary up to and including deadly force.

    Section 7(B). Firearms may be discharged under the following circumstances:

    (1) When the officer reasonably believes that the person at whom the firearm is to be discharged possesses the means, the intent, and the opportunity of causing death or grievous bodily harm upon the officer or another person.

Again, my interview with Sutton was informative. In explaining why agent Compean discharged 14 rounds and failed to hit the fleeing suspect, Sutton explained that agent Compean was experiencing a heightened physiological reaction that is commonly identified as a normal physical response to a perceived sense of imminent danger:

    WND: So, Compean shot 14 times and missed everybody, but Ramos shot one time and hit the drug dealer in the buttocks?

    Sutton: That's correct.

    WND: Is Ramos that much better a shot than Compean?

    Sutton: Ramos is a marksman.

    WND: And Compean doesn't seem very competent?

    Sutton: Well, get your adrenalin pumping some day and go to the target range one day and try to hit the target. It's sometimes harder than you think.

If the Border Patrol agents experienced adrenalin pumping, it is reasonable to conclude that they felt the drug smuggler, Osbaldo Aldrete-Davila, was armed and dangerous. The pumping adrenalin that Sutton admits impaired the aim of agent Compean should be prima facie evidence that agent Compean was experiencing an emotional response that could reasonably be associated with fear that the fleeing suspect yet possessed a weapon.

cont'd

Moreover, in the interview, Sutton repeats almost as a litany a series of faults he has with the Border Patrol agents' conduct, including Sutton's conclusion that since Osbaldo Aldrete-Davila had his arms up at one point in the exchange, evidently wanting to surrender, the suspect must have been unarmed. Yet, when agent Compean slips in the mud, Aldrete-Davila takes off trying to escape. Simply because Aldrete-Davila did not fire a weapon back at the agents does not allow us to conclude that he did not have a concealed weapon at the time.

Maybe Osbaldo Aldrete-Davila had a concealed weapon he decided not to use, thinking that he only had a brief window where he could flee the scene and it would be better to keep running than to stop so he could shot back at the agents.

Maybe Aldrete-Davila judged that if he had stayed to engage in a gun battle with the Border Patrol, he might have been himself killed or injured in the gun fire.

Certainly, Aldrete-Davila had reason to fear he was going to prison if he got apprehended. Sutton himself accepts this conclusion as evidenced by the interview:

    Question: Why did Aldrete-Davila run?

    Sutton: I'm sure he ran because he didn't want to go to jail. He's like all these other dirt-bag drug dealers; they don't want to get caught. We catch them every day and they know that when we catch them, they're going to go to prison.

How much time in the dirt and bush on the U.S. side of the Rio Grande did Aldrete-Davila feel he had before other Border Patrol agents would have an increased opportunity to apprehend him? Maybe it was simply better to keep running than to take the time to shot back at the agents.

An additional indisputable conclusion we must finalize is this: Since Osbaldo Aldrete-Davila managed to run away and escape back into Mexico across the border and was never apprehended by the U.S. Border Patrol, truthfully nobody will ever know if he did or did not have a concealed weapon on him at the time.

From that conclusion follows this corollary: Because Osbaldo Aldrete-Davila got away, there is no argument the government can make that would prove beyond a shadow of a doubt that Aldrete-Davila was unarmed.

If Border Patrol Agents Ramos and Compean had properly been prosecuted under the relevant provisions of the INS Firearms Policy, the issue before the jury would have been limited to an investigation of the reasonableness of their firing at a fleeing suspect they had reason to believe was an armed drug dealer. Let's face it – how many drug dealers smuggle drugs unarmed?

The trial testimony shows that electronic sensors had warned Compean that Aldrete-Davila's van had crossed the Rio Grande illegally and was headed into the United States. Why was Osbaldo Aldrete-Davila driving a suspicious van on a route the Border Patrol agents knew from previous experience was a route routinely used by drug smugglers along our largely wide-open border with Mexico?

Next, why did Aldrete-Davila turn his vehicle around after Border Patrol Agent Oscar Juarez began pursuing him if his goal wasn't to try to escape back to Mexico on the dirt farm roads that headed back to the river?

How many job-seeking illegal aliens drive their cars into the U.S., only to turn and lead a wild pursuit along back roads in a desperate attempt to get across the Rio Grande before they're arrested?

Instead of presuming that Border Patrol Agents Ramos and Compean were guilty of criminal behavior, as the indictment suggested, the inquiry at the trial should have focused on how reasonable their assumption was that they were pursuing an armed and dangerous drug smuggler who had tried to escape first in his van, then on foot.

Clearly, this was not the case where experienced Border Patrol agents such as Ramos and Compean would have thought they were dealing with an obviously unarmed Mexican who crossed the Rio Grande illegally only because he wanted to get work to feed his starving family. Yet, from the trial record, this preposterous theory was what the government wanted the jury to presuppose. The government dared to suggest to the jury with a straight face that Aldrete-Davila might have been a harmless, unarmed Mexican who crossed the Rio Grande merely to find work. Moreover, the prosecution proposed that in running from the vicious Border Patrol, all Aldrete-Davila wanted to do was to go back home to his poor family. As ridiculous as these assertions seem, there are statements in the trial where the prosecutors asserted exactly this, virtually word for word. Too bad for the prosecutors that Aldrete-Davila just happened to run away from and leave behind a van with the 743 pounds of dope packed inside, instead of newspapers with ''Help Wanted'' ads circled.

The U.S. Army doctor who removed the bullet testified at the trial that the drug smuggler was not shot from behind, but that he removed the bullet from the side, with the bullet piercing the left side of his left buttock and traveled to his right groin. The doctor stated that Aldrete-Davila was in a running position when he was shot, consistent with pointing back toward the agents with his left arm and hand when the bullet hit him in the rear end. This is consistent with the testimony of the agents that they saw Aldrete-Davila pointing something back at them which they believed to be a gun.

Moreover, why would Ramos or Compean have any reason to believe Aldrete-Davila was hit by any of their shots? From the testimony at the trial, Aldrete-Davila got across the Rio Grande and disappeared into the tall, thick brush along the river. A short time later, Border Patrol agents observed Aldrete-Davila running across the dry river bed where he jumped into a waiting vehicle with two other suspects.

Yet, from the get-go, Sutton cleverly reframed the issue to bias the trial in the government's favor. This was the point of charging Ramos and Compean inappropriately under 18 U.S.C. Section 924(c). The statute presumes those charged, namely Border Patrol Agents Ramos and Compean, were involved in the commission of a crime when they fired their weapons. This is totally inaccurate and misleading given the facts of the case. Yet, the presumption of 18 U.S.C. Section 924(c) – that criminal behavior was already being conducted by the accused – appears precisely suited to the impression Sutton wanted to create. The criminals here, according to Sutton, are the law enforcement officers. Every presumption Sutton made was sympathetic to the drug dealer in this case.

If any criminal action were ever to be brought in this issue, an unbiased prosecutor would have brought charges accusing the Border Patrol defendants of discharging their weapons inappropriately under the provisions of the INS Firearms Policy, not for violating 18 U.S.C. Section 924(c). The suggestion in the indictment itself was that the Border Patrol agents were somehow already criminals when they fired their weapons.

By charging the agents under an inappropriate statute, prosecutor Sutton focused the inquiry on the supposed criminal behavior of the agents, rather than on the narrow issue of whether the Border Patrol agents had reasonable cause to believe the fleeing suspect was a drug-smuggling criminal who most likely did have a concealed weapon on his person.

There is a long and involved body of law that has evolved over decades concerning whether law enforcement agents are justified in discharging their weapons at fleeing suspects. The limits of credibility are stretched in this case to believe that Border Patrol Agents Ramos and Compean acted in a criminally inappropriate manner, especially when the fleeing perpetrator (described now by the prosecutor as ''scum'') was found to have driven a van with 743 pounds of marijuana across our border with Mexico.

cont'd

There is nothing in this case, except the subtle presumption framed by the indictment, to suggest that Aldrete-Davila was anything but a criminal perpetrator. How can anyone fail to notice that the U.S. Attorney's office has in this case managed to transform a drug-smuggling perpetrator into the victim?

We should also note that one reason the prison terms of 11 and 12 years served up to Ramos and Compean respectively seem excessively harsh is because 10 years is the mandatory prison term attached to violations of 18 U.S.C. Section 924(c), as my interview with Sutton also made clear. This is the added penalty which the legislators who wrote 18 U.S.C. Section 924(c) felt anyone already committing a serious crime, such as drug smuggling or rape, should have to pay as an add-on for the additional offense of carrying or discharging a firearm in the omission of the drug smuggling offense or rape. In other words, the excessive jail terms given Ramos and Compean is additional evidence that prosecutor Sutton brought the indictments under an inappropriate statute.

Sutton had the option of investigating in Mexico to find the perpetrator, even if the evidence on the scene was minimal. Again, a section of the interview with Sutton is relevant.

    Question: People are going to say that 700 pounds of marijuana is a serious offense.

    Sutton: Absolutely. This is what my office is dedicated to. We think smuggling drugs into this country is a serious crime. We prosecute those cases every day. We are one of the highest producing U.S. Attorneys offices in the United States, if not the highest for drug prosecutions. We are very aggressive. We prosecute drug smugglers every day. I'd much prefer to be having that discussion, but unfortunately, the criminal behavior of these two agents brought us to this point.

Earlier in the interview, Sutton had mentioned in passing during the interview that Department of Homeland Security investigators were involved with Osbaldo Aldrete-Davila's family. We are separately told that Homeland Security's Christopher Sanchez was in Mexico investigating Aldrete-Davila when the U.S. Attorney's office decided it was best to give him immunity. What was that all about?

Clearly, the drug cartels knew who Osbaldo Aldrete-Davila was. Where did Aldrete-Davila get the drugs in the first place? We can imagine that a different prosecutor who was totally focused on stopping drug trafficking from Mexico could have used the facts of this case to begin a sweeping investigation into the Mexican drug traffic. But U.S. Attorney Johnny Sutton chose not to go that route.

That Sutton was drawn to the presumption that the Border Patrol agents in this case were the bad guys weighs heavily upon the credibility of the Bush administration to be serious about protecting U.S. citizens by securing our border. We strongly believe that with Ramos and Compean in prison, U.S. Attorney Sutton has given Osbaldo Aldrete-Davila the upper hand in suing the Border Patrol for $4 million for violating his civil rights.

If Osbaldo Aldrete-Davila, a drug smuggling ''dirt bag'' from Mexico, ends up being rewarded $4 million while Border Patrol Agents Ramos and Compean are in federal prison, we believe President George W. Bush will once and for all lose the sympathy and credibility of the American people on the issue of border security.

We will then rightly conclude that George W. Bush has always had only one intention and that is to do anything necessary to force another ''guest-worker amnesty'' down the throat of the American people. This is the bill the Bush administration supported in the 109th Congress and it is the bill we suspect the Bush administration will force once more in the 110th Congress.

Meanwhile, the clever attorneys for Osbaldo Aldrete-Davila will be preparing to collect by calling the U.S. Attorney's office forward to testify as they pursue their client's claim for damages against the imprisoned Border Patrol agents.