Last week, I went back and forth several times with a commenter who offered the below statements (and my responses) to this piece I posted back on October 24, 2006. It is indicative of and mirrors the argument that U.S. Attorney Johnny Sutton used as one of the central assertions to convict former border patrol agents, and currently interred federal inmates, Ignacio “Nacho” Ramos and Jose Compean.
First reader comment:
The officers shot at a man they knew was unarmed and had committed no wrong doing that they knew about at that point other than refusing to stop his van and then fleeing back toward the Mexican border. The officers knew he was without a weapon and that there was absolutely no threat to their lives. The man held up his hands in surrender yet he was fired at. Not only that but they attempted to cover up their mistakes and failed to report the incident; a clear case of obstruction of justice. How could anyone reasonably call these men heroes?
The central issue I have with your comment is your statement that Ramos and Compean knew the illegal alien didn’t have a weapon. How do you know that? They claim they thought he had a gun in their testimony.
The lawyers for the illegal would like you to believe that the officers shot wily-nily knowing he didn’t have a gun, but they can’t prove what someone believes, in this case, whether the officer in question believed the alien had a weapon and was going to use it against him. Testimony during the trial stated the officers believed the alien might have had a weapon in his hand, and that he was turning to use it. What would you do in that situation? Wait to see if what he had expelled a bullet in your direction? I would not.
His response to my response:
They said that they believed he had a gun but other than their testimony that he appeared to be reaching back for a weapon, absolutely nothing indicated that he was armed. The evidence suggests that the officers knew there was no gun: [U.S. Attorney Johnny Sutton] …questioned the agents’ claim that they thought the smuggler had a gun. “The evidence reflects something completely different,” he said. “The agents did not take cover and did not tell other agents to Get down. Someone has a gun.’” If they truly thought he had a gun they would have properly responded by hitting the ground or taking cover.
The fact that agents attempted to collect all of the shells fired and did not report the incident gives further creedence to the idea that they knew they had acted rashly because the man was unarmed.
I’m just shocked that so many people are defending these guys. Not only did these men make a mistake but they attempted to cover it up as well and filed a false report.
Their sentence, by federal law, must be 10 years at least. I would hope that they could at least be kept in partial isolation away from other prisoners to avoid harm coming to them in that manner, but frankly, they don’t deserve a full pardon. Their actions were beyond incompetent; they were deliberately deceitful.
And my final response to his response to my response to his comment:
Your statement is an almost identical quote of Sutton’s interview last week on a San Diego radio station. Of course, the concept that ‘absolutely nothing indicated that he [Davila] was armed’ is what the prosecution wanted everyone to believe as part of their case, but you simply cannot tell the border agent that the alien did not have a gun if he, the agent, felt otherwise. Period.
I do not discount the fact that the agents acted improperly by collecting shells and filing false paperwork, but any amount of jail time for a paperwork violation is preposterous. At the most, these men should simply have lost their jobs for their dishonesty (sort of like what should have happened to President Bush for lying to the American people in order to get us into Iraq–unfortunately, Bush is still our President.) The fact of the matter remains that Davila did not ship that particular van-load of drugs because of the efforts of Ramos and Compean. Thank god for their diligence.
The only part of my last response I would change is the statement that Ramos and Compean at most should have lost their jobs due to their perceived cover-up by collecting shells and not filling a proper report. I now believe they should only have been given possible suspensions. Even losing their jobs is too harsh a punishment for the supposed crime they committed, as will be discussed by Jerome Corsi more eloquently and in more detail via the World Net Daily story below.
Stampeding forward on “conspiracy” violations, as Sutton has explained ad nauseum in dozens of interviews–at the root, the agents picking up shells, and not filing proper paperwork–has been discovered, in actuality, a falsehood. Ramos and Compean did in fact provide an oral report to their commanding officer. The border patrol manual states agents are not required to de facto file physical paperwork as long as they provide an accurate oral report of the incident in question, which is what Ramos and Compean did, even disclosing the shooting of Davila. Unfortunately, their supervising officer did not submit a written report based upon the statements provided to him by the two border agents. Too bad for them.
So all those who view Johnny Sutton as the beacon of truth and justice in the case against Ramos and Compean should here realize that Sutton himself is the one who is lying, at least concerning the accusations of false reporting and false paperwork. The agents conducted themselves properly in this matter according to border patrol policies. Sutton, on the other hand, seems to have conducted himself rather inappropriately. The fact that Sutton in conjunction with the Department of Homeland Security are stonewalling the release of investigative documents that could markedly assist Ramos and Compean in their case is quite telling–they are hiding something
But what about the shooting of illegal alien drug-smuggler Osbaldo Aldrete-Davila? Isn’t that the axial reason for putting Ramos and Compean behind bars? Yes. Didn’t they act malapropos by firing their gun and shooting Davila? No.
The former agents did not act unreasonably nor did they mishandle the confrontation with the illegal alien drug-smuggler by discharging their weapons at him and subsquently striking him in the ass. The law used to try Ramos and Compean was apparently either misconstrued by Sutton and his team, or it was intentionally perverted in order to ensure two men and their families would be destroyed–guaranteed maximum jail time for the former agents. The border agents were charged with 18 U.S.C. Section 924(c) which states the following:
Whoever, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime which provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which he may be prosecuted in a court of the United States, uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime, be sentenced to imprisonment for five years, and if the firearm is a short-barreled rifle, short-barreled shotgun, or semiautomatic assault weapon, to imprisonment for ten years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to imprisonment for thirty years. In the case of his second or subsequent conviction under this subsection, such person shall be sentenced to imprisonment for twenty years, and if the firearm is a machinegun, or a destructive device, or is equipped with a firearm silencer or firearm muffler, to life imprisonment without release. (FOOTNOTE 1) Notwithstanding any other provision of law, the court shall not place on probation or suspend the sentence of any person convicted of a violation of this subsection, nor shall the term of imprisonment imposed under this subsection run concurrently with any other term of imprisonment including that imposed for the crime of violence or drug trafficking crime in which the firearm was used or carried.
This statute was erroneously used to convict Ramos and Compean for discharging their weapons against the illegal alien drug-smuggler, Davila. While this statute applies to criminals who use weapons whilst committing a crime, it only applies to officers of the law if they use their service weapons in the process of committing a crime (robbery, rape, murder, etc.) Since Ramos and Compean were simply performing their job with no extraneous outrageous actions on their part, 18 U.S.C. Section 924(c) cannot be applied to their particular case, and Sutton’s continued, parrot-like ramblings that the law applies equally all the time is false.
Regardless, we are at day nine of the Ramos/Compean political imprisonment. Their straight-to-jail railroading to me, is a clear message from Bush and his administration (of whom Sutton was a member, including the White House transitional team, when Bush was governor of Texas, even though Bush has claimed he doesn’t know Sutton.) The President wants to eradicate any willingness on border agents to do their job. He has ensured that Ramos and Compean would be the poster-boys for the border patrol–do your job and you will see serious jail time, but let the illegals flow over the border unfettered, and you will be fine.
If this comes back on Sutton though, which could happen, he could see some serious charges brought against him.
Wrong law used to convict Border agents
Posted: January 22, 2007
1:00 a.m. Eastern
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.
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 shoot 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.
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.
Phoenix Wright: Ace Attorney