Border Agents Appeal Verdict

Border agents appeal verdict

By Jerry Seper and Sara A. Carter
The Washington Times
December 3, 2007

Attorneys for two former U.S. Border Patrol agents sentenced to lengthy prison terms for shooting a drug-smuggling suspect in the buttocks as he fled to Mexico will ask a federal appeals court today to overturn the convictions, saying the men were the victims of an “overzealous” government prosecution.

“This case was not only overzealously prosecuted by the government, it sends a message to every law-enforcement agent that if you shoot in the line of duty and cannot prove you were justified is using deadly force … you will be prosecuted and receive about 10 years incarceration,” attorney David L. Botsford said in a brief filed in the 5th U.S. Circuit Court of Appeals in New Orleans.

The Austin, Texas-based defense attorney, in the 92-page brief, said former agents Ignacio Ramos and Jose Alonso Compean were convicted under a federal statute that was “never intended by Congress to be used to punish law-enforcement officers who use their weapons in the line of duty.”

Mr. Botsford, who represents Ramos, said his client was denied a fair trial, adding that the court “should not hesitate to rectify the tragedy which has fallen upon Ramos in no small part due to overzealous prosecutors and legal errors of an unprecedented magnitude.”

He also argued that Ramos was not given an opportunity to cross-examine Osvaldo Aldrete-Davila, the drug-smuggling suspect, about other loads that he might have brought into the country. He said that because Mr. Aldrete-Davila was given immunity by the government to testify against the agents, the court erred in allowing him to assert his Fifth Amendment rights when asked about other loads.

Mr. Aldrete-Davila has since been indicted by a federal grand jury in El Paso, charged with conspiring to distribute hundreds of pounds of marijuana into the United States.

Houston defense attorney J. Mark Brewer, who represents Compean, said in a motion that the government”s indictment against the agents was “improperly crafted” and misfocused the agents, counsel and jury on a nonexistent crime of unlawful discharge of a firearm because the agents were authorized to possess, carry and use a firearm in the normal course of their job.

Mr. Brewer said that in order to charge a crime under the government”s 10-year mandatory sentence statute, an indictment “must allege that a defendant either has used or carried a firearm … during and in relation to any crime of violence or has possessed a firearm in furtherance of such a crime.”

He said the prosecution “misstated” the crime defined by federal statute, adding that the U.S. District Court in El Paso, which sentenced the agents, “erroneously told the jury the federal statute made it a crime for anyone to discharge a firearm during and in relation to a crime of violence.”

“This is an outrageous case of prosecutorial abuse,” said Paul Kamenar, senior executive counsel for the Washington Legal Foundation, a watchdog group among eight organizations and persons who have filed briefs in support of the agents. “The Justice Department filed a dozen felony charges against two agents trying to do their job.”