DRJ Pores Through the Border Patrol Trial Transcripts – Cross-Examination of Jose Compean (Volumes XIII-XIV):
The testimony of the last witness, Jose Alonso Compean, concluded late Friday evening and the parties rested.
Compean was a weak witness because he was unable to explain many of his actions, but his story was more consistent than I expected. It seems clear that this case came down to whether the jury believed Aldrete-Davila or Agents Ramos and Compean. The agents’ failure to report the shooting could have been a big factor in who the jury believed.
One of the factors the prosecutor focused on was that Compean should have realized Aldrete-Davila did not pose a threat that day. Hindsight suggests it’s true Aldrete-Davila was just trying to get to Mexico but I wouldn’t be as certain as the prosecutor in a real-life situation.
Finally, the sealed testimony was recorded and redacted at the beginning of Transcript Volume XIV. Based on various references in the transcript, I think it’s likely the subjects of the sealed testimony were Aldrete-Davila’s alleged second offense in October 2005 and Rene Sanchez.
From Transcript Volume XIII:
Compean Witness #1 – Jose Compean:
Government cross-examination (by Jose Luis Gonzalez):
180-181 – Compean saw a small white sedan going east on the Mexican side of the levee. Compean hasn’t seen an exhibit in the case that shows the car’s location, and Compean doesn’t remember showing his attorneys a map of the location.
181 – Compean told his attorneys about the white car but he never told anyone else about it before today because he was never asked about it before. He never told any Border Patrol agents about the car, although Mendoza was there with him.
181 – Compean did not put the white car in his I-44 report.
181-186 – [Compean’s counsel objected and requested a bench conference to discuss the content and scope of the I-44 report:]
The defense contended that, first, Ramos’ counsel was prohibited from cross-examining an earlier witness about a December 2004 shooting that was not covered in the I-44. Thus, if the prosecution wants to question Compean about why the I-44 did not include factual details, the defense asserted consistency requires that the defense be allowed to question the earlier witness why there was no mention of a shooting in the December 2004 I-44. Second, an I-44 is a form to report a seizure of evidence and is not the place to detail probable cause or shootings.
The prosecution responded that this argument was ridiculous because the issue is what Compean did in this incident, and Compean never told the story of the white car before. The prosecution wanted to impeach Compean to show he made up the white car, and they want to question Compean about the I-44 because he can put anything he wants to in that report.
Prosecutor Kanof responded that defense counsel was “remembering another time, not this trial. We have never, in this trial — she’s remembering one of the hearings. The hearing in the motion in limine is when we said a shooting doesn’t go in an I-44. In this courtroom, we have never –
MR. ANTCLIFF: Yes, you have.”
[NOTE from DRJ: I did not find any discussion of an I-44 in the pretrial matters reported in the transcript but I may have missed it and there may be other pretrial matters that were not included in the transcript. The term I-44 was mentioned several times in the transcript but the content of the I-44 was discussed briefly in Chief Barker’s testimony (Vol 11 p 155 where he testified that an I-44 outlines the facts of an incident. The question of content also arose regarding the December 2004 incident in Richards’ voir dire testimony in Volume 10 p 315-326. At p 326, prosecutor Kanof argued that the government had not opened the door regarding the content of I-44s in prior questions, presumably to support her contention that the defense should be prevented from questioning Richards about why the December 2004 I-44 did not mention a reported shooting and a possible failure to pick up shell casings.]
Compean’s counsel did not want to object in front of the jury but the Court refused to rule before hearing the question. The Court ruled that it was clear Compean did not report the shooting – “it’s been said ad nauseum” – but the prosecution could question Compean about the white car.
186 – [End of bench conference.]
186 – Compean heard the testimony in the trial about a white car dropping off or picking up Aldrete-Davila, but that’s not where he got the idea for his story.
186-187 – Compean mentioned the white car to Mendoza when they were out there. He doesn’t recall if he mentioned it to anyone else. Compean heard Mendoza testify and Mendoza never mentioned a white car, but Compean said it did occur.
187 – When he saw the white car dragging along, Compean told Mendoza, “almost as a joke. I said, There’s probably our load right there.” By “our load,” Compean meant a load of marijuana. He didn’t believe there were undocumented immigrants in the car because there was only the driver and no one in the passenger or back seat of the car.
187-188 – The Mexican military patrolled the area south of Fabens because the Juarez police didn’t cover that area. Compean believed that when the Mexican military was there, it kept the drug smugglers from using that area. He believed that because the BP had loads of marijuana and undocumented immigrants whenever they didn’t see the Mexican military.
“Q. So they’ve actually helped you deter the importation of marijuana and other drugs, is that correct, their presence?
A. I really don’t know. It may have.”
188-189 – Compean was assigned to patrol a certain area of the levee called zone 3. They had sensor activations in that area before 1 PM that day. Mendoza was patrolling area 3A. Area 3A begins at the Grijalva headgates which is on the edge of where Compean’s area started.
189-191 – Compean and Mendoza were talking on the radio about how they had not seen anyone, including the Mexican military, all day. They were parked next to each other, a few feet away, facing in opposite directions. Compean was facing east. They talked for about 5-10 minutes. Compean and Mendoza were not parked on the levee, they were parked on the vega. [Compean could not indicate where they were parked on the photo identified as GOV EXH 26, apparently because it did not show the vega, but he did indicate which directions their vehicles were facing.] Compean’s driver’s seat was closest to Mendoza’s [driver’s] seat, and they were about 5 feet apart.
191-192 – Compean and Mendoza were passing the time when Compean looked out his passenger side window and saw the white car. Compean got his binoculars after they lost sight of the car. Mendoza left the levee and headed toward the main road.
192 – Compean didn’t say “There’s the load we were waiting for.” He said it was “probably our load.”
192 – Mendoza left so he could stage and wait for the vehicle. Compean didn’t see exactly where Mendoza went but he thought it was near Island Road. The 76 road goes up and hits Island Road, and once you hit that you can only go east or west. Mendoza was covering the west side.
192-193 – The white car was on the Mexican levee. Compean wasn’t sure about the distances but it looked like the American and Mexican levees were the same distance from the river.
193 – Compean saw the white car between 12:30 and 1 PM, but he’s not sure of the exact time. He did not relay information about a suspicious vehicle (because it was riding low) to sector or anyone else.
193-194 – Compean and Mendoza saw the white car continue on the Mexican levee eastbound until they lost sight of it. Compean doesn’t know for sure if whatever was in that car ended up in the van he was chasing. “We thought it could be.”
194 – Compean believed the marijuana in the van could have been transported in 15-30 minutes. He had seen 1,300 pounds of marijuana loaded up in less than one minute.
194-195 – The agents knew where the [white] car was heading and the area where drugs are crossed so they set up in that area. At first, Compean didn’t see anything but the sensors started going off again, and that’s when he saw the van. Compean was watching the area and he had his binoculars, but he couldn’t see the river because the river bends and you can’t see the levee road.
195-196 – Compean thought it was a marijuana load. He mentioned it to Mendoza but did not call it in to sector communications. Compean
didn’t know the load was coming across and he doesn’t remember if he mentioned it to anyone else. If he did, it was on the direct radio because there was nothing on the repeater. There is no record of the direct radio communications.
196 – Compean cannot explain how the van came across or was loaded up on the American side.
196 – Compean did not know where the dope would be brought across but he thought it was obviously going to be in his area.
196 – The van is a “good-sized” van but Compean didn’t see it sitting on the American side. He did see it leave the area.
197 – When asked why he never saw the van or see it loaded, Compean explained the van was about 30 yards north of the ditch and he couldn’t see the ditch from where he was located. Compean opened the driver’s side door of his truck and stood up on the edge to get a higher vantage point, but he did not get out of his vehicle and walk to get a better look. Compean could have moved his truck closer to get a better view but he didn’t.
197-198 – Compean kept getting sensor hits and he continued to look at the road. He could not see the ditch or the river. Compean is not sure how far he was from the 76 sensors – “At least a mile.” It’s February so there were lots of plowed fields and nothing growing, but it was a windy and hazy day so he couldn’t get a good look without his binoculars.
198-199 – Compean isn’t sure how far he can see with binoculars. He never measured but it’s a pretty far distance. He should easily be able to see the area between the drainage ditch and the Rio Grande.
199-200 – Compean never saw the van come in, even with his binoculars. The van may not have come in through that road. Compean saw the van leave but he did not see it come in on that road.
200 – Even though he didn’t see the van arrive, Compean wants the jury to believe that he saw a gun after someone had thrown dirt in his eyes. It makes sense to him because that’s what he saw.
200-201 – Compean saw the van leave the area northbound. He checked to make sure the radio was on the repeater so he could call it out, because he wanted to make sure there were agents close by and the repeater travels a longer distance.
201 – Compean also testified that the used the local communications so everyone could hear him. He only used the repeater in that [first] instance and when he called out a 10-23 to sector radio. He used the repeater to let sector radio know to stop all of their sensors, because he wanted the radio waves cleared for emergency traffic so he could talk to fellow agents in the field.
202 – Compean’s purpose was to clear the repeater channel so they could talk, but other agents repeatedly asked for 10-23 on the same channel and the channel wasn’t cleared.
“Q. And you’re not saying that there are a lot of conversations on the repeater that were not — that were not recorded, are you?
A. I’m not sure. There’s –
Q. You’re not sure about what, what you’re saying or –
A. There’s not — there isn’t always — not all of the communication on the repeater is — is recorded. If you hit dead spots, people won’t hear you, and it doesn’t get — it doesn’t get transmitted.”
203 – Compean gave a description of the van and Compean agreed to a [compound question] that he didn’t give a very good description and that Juarez asked if it was a minivan. Compean didn’t remember what Juarez asked until he read the transcript, but he’s sure it’s the same van he saw.
203-204 – Compean first saw the van leaving the area on the dirt road directly north of the sensor. It was approximately a mile – could be more or less. Compean saw it leave with his binoculars and at first he called out a blue van because he wanted to call it out quickly.
204 – Juarez and other agents responded and Compean could tell from their transmission they were close. By then, Compean had switched to direct. Then Juarez, as he testified, asked if it was a minivan. Compean responded it was either a light blue or gray full-sized van. He could tell that because he saw the outline of the windows on the van.
204-205 – [Bench conference requested by the prosecution regarding scheduling. The defense wanted to continue but the prosecutor indicated he was starting a new line of questioning and the Court decided to recess for the day.]
206 – [After the jury left, the Court provided the parties with a rough draft of the Charge and asked for comments – presumably the following day. The Court said the Charge was 60 pages long and it would take 30-40 minutes to read it to the jury. The prosecution asked for 1-1/2 hour to argue the case and the defense asked for an hour – apparently for each defendant. The Court indicated she would make a decision but if she gave the defense an hour, it would be split 30 minutes each. The Court also stated that if they finished the testimony the following morning, arguments would be that afternoon.]
[End of Transcript Volume XIII.]
From Transcript Volume XIV:
3 – [Sealed hearing omitted by Court Order.]
4 – [Court in session; Jury present.]
Compean Witness #1 – Jose Compean:
Government cross-examination, continued (by Jose Luis Gonzalez):
4-6 – Compean attended the Border Patrol academy in Charleston SC for approximately five to six months where the agents were taught “firearms, driver’s training, immigration law, naturalization law, physical techniques, PT.” Firearms training included how to load and unload a magazine, fire a weapon and shoot at a target (including target practice). The agents did this almost on a daily basis.
6 – Agents at the academy are taught about handguns, shotguns and an M-4, which is a smaller version of an M-16 rifle.
6-7 – Batons are taught in PT – Physical Techniques. PT teaches “how to arrest suspects, handcuffing, do handcuffing techniques, … and baton training.”
7 – When they are taught how to arrest, agents are given different scenarios such as how to confront a compliant and noncompliant suspect. “Compliant is when they obey all your commands. Noncompliant is when they do not.”
7-8 – Baton training is part of PT and involves learning different positions or different areas of the body where you could strike an individual. You can strike an individual on the thigh or behind the legs. Compean wasn’t sure but he thought he was taught to use the baton on the legs but not the arms and hands.
8-9 – Agents are taught to use batons in certain situations and other weapons in different situations, depending on whether the suspect is compliant. If the person does not comply, the agent can escalate the level of force to defend himself.
9 – Any agent who was certified to carry a baton at the academy can use the baton. Compean believes that all agents get certified now but he isn’t sure if they used to. Compean was certified and has maintained his certification.
9-10 – Agents get refresher training on firearms every 3 months by qualifying (shooting) with the handgun, shotgun and M-4. They shoot each weapon once for score, without any practice. Compean wasn’t sure how many rounds they shoot but he agreed it might be around 60-70 rounds for the handgun and the M-4. [No estimate was given for the shotgun.]
11 – Agents have to maintain a certain proficiency to be able to use their weapons. Compean maintained his proficiency but “just barely.” Compean qualified approximately every 3 months, which would be around 15 times total in his career.
11 – Refresher training on the baton is done yearly, so Compean has done that 5 years.
11-12 – Firearms training involves shooting and classroom training of an hour or two. Sometimes the agents watched videos on things that have happened to officers or different scenarios. Compean agreed they also discuss policies like the firearms policy and the pursuit policy. Agents review the firearms policy each time they qualify.
12-13 – When asked what the firearms policy is, Compean stated “it’s in the manual, I guess” and agreed it say that “any time there’s a reportable shooting you have to report it within an hour.” Agents review this policy every time they qualify so Compean has heard the reporting requirement at least 15 times.
13-14 – [The prosecutor referred to Compean’s earlier testimony about water spots:] Compean saw water spots and what appeared to be drag marks on the dirt road, like something heavy was being dragged across the road. Compean described the water spots he saw as “like when you get out of the shower and have water dripping off of you.” Compean saw this near the 76 area.
14-16 – [Compean identified GOV EXH 101, a photo of the 76 road where the van was. Compean agreed the photo looked like the scene on February 17, 2005.] Compean agreed that GOV EXH 101 included several marked locations: Fabens, San Elizario TX, the 76 road – the dirt road that leads from the ditch to Island, the drag road – a road that parallels the ditch where Compean saw the water marks, and a different section of the Sierra Delta ditch.
15-16 – [Compean identified GOV EXH 101A, a photo of the same area “without all the commentary.” The Court admitted GOV EXHS 101 and 101A without objection.]
16-17 – Compean thinks the 76 area is about 3 miles from where the van ended up on Jess Harris Road.
17-18 – Compean was not able to identify on either GOV EXH 101 or 101A his approximate location when he called in the blue van on February 17, 2005, at 1:11 PM. His location was further west than the photos showed. Compean thought he was about a mile west of the location in the photos. GOV EXH 101 shows the location where the sensors were activated and the location Compean and his fellow agents were reacting to. It is the approximate area where Compean saw the water spots.
18-19 – In response to a question about how much water was in the water spot, Compean stated there was enough for him to see it. Compean went there because he heard the sensor activation so he went to the location to check the sensor and see what was there.
19-20 – Compean also saw drag marks near the water spots. Drag marks are the marks made by the heavy bags or bundles as they are dragged out of the ditch and onto the vehicle that is picking up the load. The bundles and people get wet as they go through the water in the ditch. The drag marks are the marks they leave when they climb out of the water.
20 – Learning about these marks and spots are like reading sign. It is not taught at the BP academy. Compean learned it from working out in the field for 5 years. It’s helpful to know what happened and what’s going on. Compean agreed that, similarly, “casings would have helped this jury know what happened.”
20-21 – [Referring to GOV EXH 92, the repeater transcript:] The incident started at 1311 or 1:11 PM when Compean called out a blue van leaving area 76 pretty quick. Compean’s transmission was also in the repeater transcript on page 2 when he called out a 10-23: “It says, Compean, 10-23, rim rock.”
21-22 – In the repeater transcript at 1315:07, Vasquez asked Joe if the van was dark blue. He was probably talking to Compean. If Compean answered, it was because he had switched to local since there wasn’t an answer in the transcript.
22-23 – In the repeater transcript at 1317:34, Juarez asked if it was an older model van or a new model. Compean believes that question was to him but his answers weren’t recorded because he was using a local or direct channel. Compean agreed that since he didn’t use the repeater channel, that “evidence” was gone.
23 – Compean started on the repeater but he got off the repeater so he could communicate more quickly with the other agents.
23 – Compean did not hear a description of the driver given over the radio.
23-24 – Compean was primarily listening to the other communications during this time period as agents were talking to orient themselves.
24 – Compean didn’t see the license plate. There was nothing on the radio about the license plate.
24 – Compean doesn’t usually use the repeater. No one told him not to. It’s his personal practice.
24-25 – Compean doesn’t agree this was a chase or a pursuit in Fabens. They were looking for the van. That happened at 1318 or 1:18 PM, or about 6-7 minutes after Compean’s initial callout. Compean thinks he was already on the levee road at that time.
25 – Compean did not get off the levee to check for drag marks and water marks. He could see it from the levee road by walking to the edge of the ditch. Compean was on the south side of the ditch but he could see the marks on the north side of the ditch from where he was. It was pretty obvious something had happened there.
26-27 – Compean got back in his vehicle and was monitoring the radio traffic after the callout. For the 6-7 minutes it took to locate the van, he was listening to the radio communications. He did not move at first – he stated where he was so he could watch two people go back over the levee: “When I approached the area, they were climbing out of the river.” He thought they might have been guides, smugglers or escorts who had dropped some people off and showed them where the van was. When Compean saw them, they were on the river going back south.
27-28 – Compean wasn’t sure if they were dangerous people. He was looking at them [to decide] and to check for others in the area. Compean doesn’t remember if he called in a report of 2 suspicious people but it wasn’t in the transcript.
28-29 – Compean has been in the Fabens area for 6 years and is familiar with it. [Compean identified GOV EXH 46, a photo of Fabens Road about a block-and-a-half from downtown just south of the lights.] The speed limit at this location is 45 mph and Compean has driven there many times.
29-30 – [Compean identified GOV EXH 48, a photo of a 55 mph speed limit sign.] Compean could not identify where this speed limit sign was located.
30-31 – The further away from town you drive, the speed limit increases. [The Court sustained the defense objection to a question regarding the speed limit in town as outside the scope of direct examination and not in evidence because Compean wasn’t in town during this incident.]
31 – Compean saw the van before he saw Ramos’ vehicle.
31-32 – [Compean identified GOV EXH 7, a photo of the north view of Jess Harris Road; GOV EXH 6D, a similar photo that shows more of the gravel road on the south side of the levee; and GOV EXH 6C, a photo from the south side of the levee. The Court admitted without objection GOV EXHS 6C, 6D, and 7.]
32-33 – [Compean reviewed GOV EXH 6, a photo of Jess Harris Road from the edge of the lip of the drainage ditch.] Compean wasn’t sure if the location looked that way on February 17, 2005, but “it looks like it.”
33 – [Compean identified GOV EXH 6A as a photo of a street sign for Wingo Reserve Road and GOV EXH 6B as a photo of where Wingo Reserve Road ends, Jess Harris Road begins, and where the dirt road begins.]
33-34 – [The Court admitted without objection GOV EXHS 6, 6A and 6B.]
34-35 – Compean realized at some point that Ramos was coming back south. He heard Ramos’ [radio transmission] before he saw him. Compean isn’t sure what time that was – maybe 1:20 PM – and all he heard was they were coming back south. At that point, Compean was still driving east on the levee heading towards the Jess Harris area. As Compean was pulling up, he looked up and saw the van and the dust trail.
35-37 – The van was traveling a little bit fast. You hit the dirt road past Wingo Reserve Road shown in GOV EXH 6A. [Compean identified his location on GOV EXH 6A.]
37 – Compean estimated it is about a quarter mile from Wingo Reserve Road (where Jess Harris Road becomes a dirt road) to the end of the road where it meets the ditch. That’s where he saw the van and the cloud of dust headed in his direction. Compean was still driving when he saw that.
37-38 – Compean’s shotgun was in his gun rack as he drove. His shotgun was basically locked next to the driver’s seat so it would remain in place as he drove. The shotgun was pointing up.
38-39 – Compean had his baton on that day. He carries it all the time and it’s part of his uniform. When he’s in uniform, Compean also carries keys for the gates, handcuffs, and magazines for the pistol. There is no requirement as to how many magazines he carries. Compean usually carries two. Compean also carried a shotgun and 4 shells that are in the shotgun. He didn’t carry extra shells.
40 – Compean wears a thick belt that carries all these things but it’s not very heavy.
41 – Compean has standard issue boots. They aren’t heavy. Compean doesn’t know if the BP allowed sneakers or tennis shoes but he always wore boots.
41 – Compean wasn’t sure but he agreed this gear (boot, belt, weapons) might add about 10 pounds.
41-42 – [The prosecution marked Defendant Ramos’ Beretta that had already been admitted as GOV EXH 39A but was not marked. The magazine was GOV EXH 39B.] Compean estimated the Beretta weighs about 1 pound. Compean believes the magazine holds 11 rounds.
43-44 – Compean currently weighs 180 pounds but he weighed a lot less in February 2005. He recently gained a lot of weight. [Compean identified GOV EXH 100 as his arrest photo taken in March 2005.] Compean admitted the arrest photo was an accurate reflection of what he looked like in February, so he was close to 180 pounds in February 2005 and that he weighed close to 190 pounds with his gear. Compean is 5 feet 4 inches tall.
44-46 – [The prosecution offered GOV EXH 100 for admission. Following a bench conference, the Court took under advisement a defense objection to GOV EXH 10. The prosecution had offered the photo to show how unlikely it was that a 5’4” 190 pound agent could chase and tackle a 6’ 160 pound suspect, and stated that Compean had lost weight since his arrest. The defense objected because the picture was prejudicial – it was taken in the jail at 1-3 AM and, from the conversation, the picture was apparently unattractive.]
46-47 – Compean was in his pickup truck on the levee road as the van and dust cloud came toward him. He was concerned but he was not in fear.
47-49 – Compean got out of his pickup truck. He reached for his shotgun. His handgun was on his belt. Compean took his shotgun even though he wasn’t afraid. He hit the button and unlocked his shotgun in 2-3 seconds or less. [Compean demonstrated for the jury how he held the shotgun as he got out of his truck. There was no verbal description provided other than Compean released the shotgun, grabbed it, and climbed out.]
49-50 – Compean started walking to the end of the ditch. He doesn’t know the distance from the levee to the end of the ditch. [Compean referred to GOV EXH 32, which contained measurements from the levee road where Compean stood with the shotgun to the slope of the ditch.] Compean agreed that distance was 73 feet on the exhibit even though it didn’t seem that far to him.
50-51 – [Compean demonstrated how he held his shotgun although it wasn’t described in the transcript.] Compean held his shotgun in the port arms stance. He doesn’t recall if he walked straight to the lip of the ditch but he did walk towards the ditch. As he walked, Compean saw the van on the other side of the ditch. It has slowed down a little bit.
51-52 – [At this point, the shotgun fell over in the Courtroom:]
“BY MR. GONZALEZ:
Q. This is not loaded, correct? Is it?
A. I don’t know.
Q. Okay. So you’re walking around with this shotgun, of course a lot better than I am, correct?
52-53 – Compean can see the van and the dust cloud but he doesn’t see any other vehicles in pursuit. He did not see the emergency headlights on Ramos’ vehicle or any other vehicle, and Compean doesn’t believe he testified to that earlier.
53 – Compean was almost to the edge of the ditch as the van came right at him. Compean thought the van was going to keep going straight into the ditch.
53-55 – As the van approached, Compean looked at the driver and the driver was looking at Compean. [Referring to GOV EXH 32, a photo of the drainage ditch area:] Point C to Point B is 43 feet and Point B to Point A (the canal road) is an additional 15 feet. Compean agreed he was no closer than 58 feet from the driver when he saw the driver’s eyes. It seemed closer than that to Compean.
55 – Compean did not see anyone else in the van.
55 – The driver was looking at Compean. The van was not racing toward Compean but it didn’t look like he was slowing down. Compean thought the van was going to “jump the ditch or fall in the ditch or something.”
55-56 – Compean was looking at the driver but he was not looking in his eyes. He was looking at his face. Compean saw the driver open the door and jump out of the van.
56-57 – [Referring to GOV EXH 6E, a photo of Jess Harris Road where it meets the ditch:] The area where the driver jumped out of the van is shown in GOV EXH 6E. [Compean indicated the area on GOV EXH 6E. The Court admitted GOV EXH 6E without objection.]
57 – [Court in recess for lunch.]
58-61 – [Conference outside the presence of the jury: Mr. Antcliff, Compean’s counsel, clarified that Compean’s arrest photo should be excluded as prejudicial under Rule 403 and requested that the Court do a balancing test. The Court agreed and indicated she took the matter under advisement for that reason. After lunch, the Court sustained in part and overruled in part, requiring that the lower portion of the mug shot depicting three views be cut off and only the upper portion of the mug shot should be used. The Court held that Compean opened the door in his testimony about his physical appearance and the photo was the best evidence of his appearance on that date. In light of that ruling, Compean’s counsel preferred using all 4 pictures because the upper portion was the worst photo. Therefore, the objection was withdrawn and GOV EXH 100 was admitted.]
61 – [Jury present; Court in session.]
62 – Compean identified GOV EXH 100 as his picture taken the day he was arrested. It was around 2 AM and “not a great picture.” After looking at his picture, Compean isn’t sure how much he weighed in February and March 2005. If his booking slip said 180 pounds, it might be correct.
62-64 – Compean stood on the lip of the ditch as the van approached. He had the shotgun and was walking down towards the end of the ditch. Compean saw the driver’s face and they made eye contact. Then the driver looked left (to the right from where Compean stood) and opened his door. He turned and climbed out. The van was slowing by then and the driver jumped out.
64-66 – Compean isn’t sure how far the van was from the edge of the ditch but he thought it was 10-15 feet. After referring to GOV EXH 6E, Compean estimated the driver jumped out 15-20 feet from the ditch. Compean indicated on GOV EXH 6E where the van was when the driver jumped out of the moving vehicle. Compean estimated the van was traveling around 30 mph right before that point.
66 – Compean testified earlier that the driver jumped out and raised his hand to surrender once he was further down the ditch. At first, he jumped out and ran towards the ditch.
66-67 – The van was going 30 mph when he jumped out 10-15 feet from the edge of the ditch, but it stopped because there was extra dirt that held the van in place and prevented it from going into the ditch.
67 – The driver did not fall as he came out of his vehicle and he continued running to his side. Compean yelled at him, “Stop, put your hands up.” The driver looked at Compean, stopped for a second, and then put his hands up. The momentum of running did not push the driver over the ditch. Instead, he stopped and raised his hands.
67-68 – Compean had his shotgun pointed at the driver as he stood with his hands raised. No one else was there yet. Compean could hear a vehicle but he didn’t see anyone yet. Many vehicles arrived later but Compean wasn’t sure how many he heard at first.
68-69 – Compean identified GOV EXH 9 as a photo of the van. Compean is trained in detecting sign, called sign cutting. He identified the tire tracks behind the van’s tires in GOV EXH 9. After looking at the photo, Compean agreed that the van might have been braking.
69-70 – Compean identified GOV EXH 15 as a photo of the van and tire tracks from another angle. You are more likely to leave tire tracks when you are braking rather than when you are driving, and Compean could see the tire tracks.
70 – In response to a question whether it would be hard for the driver to jump out while he was braking and not fall down, Compean stated the van was moving when the driver jumped out.
70-71 – Compean isn’t sure if the tire tracks indicate the driver was braking because he doesn’t know about tire tracks, but he thought it was possible. Compean agreed they don’t know for sure since the scene wasn’t preserved on February 17, and that the scene wasn’t preserved because Compean didn’t tell anyone what occurred so evidence other than this photo was destroyed.
71 – Compean had his shotgun and his baton that day but he didn’t have O/C spray, a pepper spray.
71-72 – The driver was at the edge of the ditch with his hands up – holding them with each hand to the side of his head. Part of Compean’s training is to look at hands and he is sure he did not see anything in the driver’s hand at that time.
72-73 – Compean looked at the driver and the driver looked at him. They were about 43 feet apart. The driver was running toward the ditch and Compean yelled out in Spanish for him to stop and put his hands up. Compean is fluent in Spanish. [At the prosecutor’s request, Compean said in Spanish what he said to the driver that day.]
73 – At that point, the driver stopped and looked at Compean. Then the driver put his hands down at his side and started climbing down into the ditch.
73-79 – [Compean identified GOV EXH 51B, a photo of the drainage ditch where the incident occurred. He also looked at GOV EXH 51C, a photo and diagram with arrows depicting where Compean and the driver were that day. Compean described where the diagram was correct and where it was incorrect. The Court admitted GOV EXH 51B without objection. With regard to GOV EXH 51C, defense counsel requested that Compean’s corrections be made before the exhibit could be admitted. Compean corrected the diagram to show the positions and movement of the parties and the Court admitted GOV EXH 51C.]
79-80 – The driver got to the edge of the ditch with his hands raised, but then he put his hands down at his sides and climbed into the ditch. The driver didn’t reach for anything. Compean still had the shotgun pointed at him and continued to yell at him in Spanish to stop and put his hands up, but he didn’t. Compean was tracking him [with his shotgun] the entire time.
80-82 – Compean knew Ramos was behind the driver based on the local radio traffic, so he assumed it was Ramos who arrived first. Compean didn’t see anyone else until the driver was on the north side of the ditch, although the driver hadn’t gone across the water yet. Compean was focused on the driver and the driver’s hands but could see somebody approaching from the waist down. He didn’t see Ramos’ face or know who it was, but he knew he had reinforcement.
82-83 – When Compean first saw the agent that he knows now was Ramos, Ramos was running towards the ditch. When Ramos got to the ditch, he stood on the edge a little bit off to the left. Ramos was not within touching distance of the driver. The ditch is at least 11 feet deep.
83 – Compean doesn’t remember if Ramos issued commands. Compean was still yelling at the driver to stop and put his hands up. Compean didn’t change his command when this command didn’t work.
83 – Compean did not yell “Parate, Mexicano, de mierda” — “Stop, you Mexican shit.” Compean never heard anyone say that.
83-85 – At this point, the driver was at the bottom of the ditch. The driver looked back and maybe that’s when he saw Ramos or the other agents. Then the driver turned around, looked at the water, and went right through. The driver waded into the water (it’s not deep but you sink because it’s soft) and crossed the ditch. Compean realized the driver wasn’t going to stop and he got ready for him. Compean thought the driver wanted to go back south to Mexico. Compean realized the entire time that the driver’s intent was to get back to Mexico.
85 – The driver jumped across the water and got to the south side of the ditch. Compean is still pointing [his shotgun] at the driver. That’s when Compean heard someone yell “Hit him.” Compean doesn’t know why they yelled that.
86 – Compean thinks that the driver climbed up the ditch without using his hands. Compean doesn’t recall if that’s what OAD testified.
86-87 – [The prosecutor asked Compean to pretend he was the driver and demonstrate
how he held the shotgun. Compean stated he pointed the shotgun at the driver but he did not point it at the prosecutor in the courtroom for safety reasons.]
87-88 – The driver had his hands at his sides and ran toward Compean, trying to get up the side of the ditch. The driver was moving at a medium speed. Compean was still pointing his shotgun at the driver. When the driver got to a point about 7-8 feet down in the ditch, he looked at the shotgun and then he looked at Compean. Compean thought the driver was going to go for the shotgun.
88-89 – The driver was still below Compean. The driver raised his hands and Compean thought the driver was going to lunge at him.
89 – Compean could have stepped back but he didn’t want to. Compean didn’t want the driver to be able to climb out of the ditch because, “at the top of the ditch, I had the advantage. I wanted to keep that advantage on him at all times.” The person on top has the advantage.
89-90 – The driver’s hands were not up when he approached Compean. His hands were still at his sides but he was bringing them up towards Compean and it looked like he was going to lunge. He was reaching up.
90 – Compean was standing at the edge and had already moved the weapon away from the driver. When the driver was 4-5 feet (or closer), Compean tried to step forward and push him back down.
90-91 – Compean stepped forward with his right foot. The driver was reaching for Compean but he was too far away to grab the gun.
91-92 – [Compean demonstrated what he and the driver did, and what he did with the gun, but these actions are not clear in the transcript.]
92 – Compean brought the gun “straight across.” Compean didn’t think the driver was quick. He wasn’t worried the driver could reach the trigger of his gun.
92-93 – [The Court sustained a defense objection to the prosecutor’s statement that “I guess that's why you have him flying out of the van, because that's how you get him limping later. Is that your explanation as to why he's moving out -- he's jumping out of a flying van?”]
93-97 – Compean pushed the shotgun in the direction of the driver’s face. He lost his footing as he brought his right foot forward and slipped. The sand was loose in some spots on the ditch, and that’s what occurred here. [Compean identified GOV EXHS 102 and 103, photos that show the general area of the ditch. C. Sanchez was shown in GOV EXH 103 but his position did not accurately depict the area where the driver was standing. In response to defense counsel’s objection, Compean corrected the photo by placing an X where the driver was standing. The Court then admitted GOV EXHS 102, 103, and 104 (which was apparently discussed but not identified on the record) without objection.]
97-98 – Compean was on the edge of the ditch. Compean’s left foot was on the ditch. His right foot was slightly lower and it slipped a little bit lower as the driver approached. Compean didn’t move back to prevent himself from slipping because he didn’t want to give the driver the opportunity to climb out.
98-99 – Compean used a “pushing/striking motion” at the driver as he got closer and that’s when he lost his footing:
“A. I stepped down, I took that step forward, and my foot went on the other side of the slope on the ditch.
Q. Because it is very slippery there, correct?
A. Yes, sir.
Q. And how far did you go do down?
A. I just dropped down to one knee. My left knee stayed right about maybe the edge, or maybe a little — right along the side.”
99 – Compean still had his shotgun in his hand.
99-100 – Compean slipped when he was about 2-3 feet from the driver, and the driver ran around him. First, the driver stepped to the side. He did not push or kick Compean as he went around. The driver knew Compean had lost his balance but he did nothing to Compean.
100 – [The Court overruled an objection:] The driver might have had an opportunity to push Compean down if he wanted, but he didn’t come at Compean. The driver was still just trying to get away.
101 – The driver did not have a weapon in his hands as he came around Compean.
101-102 – Compean dropped down at the edge of the ditch and was vulnerable at that time. Compean doesn’t know if Ramos saw this from the other side of the ditch because he [Compean] was looking at the driver. Compean believes that Juarez has arrived but he thought that from listening. He didn’t see Juarez and Compean agreed that Juarez did not come to his rescue.
102-103 – Compean saw the driver go around him and run sideways up north on the levee. The driver went around on Compean’s left side about 8-10 feet away. The driver wasn’t in arms’ length. Compean and the driver had been within 2-3 feet but when Compean slipped, the driver ran sideways to the right (Compean’s left) to put more distance between them. Compean isn’t sure how far the driver ran but it was too far for Compean to reach him.
103-104 – The driver ran south toward the river. Compean watched the driver and then got up when he saw the driver start to come up out of the ditch. Compean felt threatened at that point because the driver had not obeyed his commands. Compean was in fear for his life.
104-105 – Compean saw the driver running to Mexico. Compean got up and threw down his shotgun. The driver was almost to the edge of the ditch on the south side as Compean was getting up. The driver was 5-10 feet away from Compean and he was climbing out of the ditch.
106 – Compean threw his shotgun down on the edge of the ditch.
106-107 – The driver had about a second head start but it wasn’t more than a second. The driver didn’t run straight north or straight south, so Compean had time to recover.
107 – Compean weighed about 180 pounds and had 10 pounds of gear that day. The driver is tall and thin. Compean doesn’t know if the driver moved quickly or how much he weighed.
107-108 – Compean thought he could catch the driver and he was able to catch up to him on the south edge of the levee. [Compean identified GOV EXHS 106 and 106A, photos of the area where Compean chased the driver. GOV EXH 106 was a photo of the area where Compean caught up to the driver, and GOV EXH 106A showed a close-up angle. The Court admitted GOV EXHS 106 and 106A without objection.]
108-110 – [Compean indicated on GOV EXH 106A where he slipped in the ditch, where the driver ran around him and then ran south, and where Compean caught up to the driver. Compean ran from Point C to the ditch at Point D (73 feet) and then from Point D to the south side of the levee road at Point E (17 feet) for a total of 100 feet --sic.]
110-112 – Compean caught the driver and grabbed him by “the back area of the top of his shirt” near his collar. Compean agreed the driver is at least 6 feet tall but he was able to reach near his collar. Compean grabbed the driver and pulled him but he didn’t slow down. At first Compean grabbed with one hand but then he was able to reach over with his other hand and grab his back or side. [Compean demonstrated:] His first hand was in the driver’s shoulder and neck area, and his second hand was a little higher than his waist.
112-113 – Compean jumped on the driver and was trying to tackle him.
113-114 – [Compean identified GOV EXHS 30 and 31 as topographic maps of the area where he and the driver were. Compean also identified GOV EXH 108 as a blown-up map of GOV EXH 30. The Court admitted GOV EXH 108 without objection.]
114 – [Referring to the topographic map:] Compean agree the ditch was 11 feet deep with a 31-degree pitch. This is the area where Compean tried to strike and push the driver away. Then the driver ran 53 feet from the ditch to the levee road. The slope of the levee road is 24-degrees.
114-116 – Compean was wearing his work boots. He didn’t notice what kind of shoes the driver was wearing. Compean caught the driver on the south edge of the levee road as he was going down the south slope. The south slope of the levee is another 24 degrees down. Compean grabbed the driver “right near the edge” [of the levee road].
116-117 – The north and south slopes of the levee road are slippery because of sand and rocks. As the driver ran down the south slope, Compean grabbed him and then they both fell down. Compean isn’t sure how far they fell but he was running as fast as he could and they had good momentum. That’s what caused them to fall.
117 – Compean lost his grip on the driver’s shirt as they fell. Compean isn’t sure how but he was able to but he grabbed the driver’s ankle. Compean hung on, hoping and waiting for the other agents to come across and help him out.
117-118 – The area is rocky and Compean agreed that he could have gotten some cuts and scratches from the momentum of the fall. Compean’s clothing wasn’t torn at all that afternoon.
118-119 – Compean and the driver were on flat ground after they fell. They were at the bottom wrestling. Compean was able to grab the driver’s ankle – he believes it was the right ankle. The driver was trying to kick Compean with his left foot and break free so he can get back south.
119-120 – The driver tried to get up and Compean is still on the ground, holding him by the ankle. As he tried to get up off the ground, the driver “kicked the dirt back with his hand.” [Compean demonstrated what happened:] The driver pushed his left hand down, grabbed some sand, and threw it in Compean’s face.
120-121 – The driver had the advantage and superior position at this point because he was higher.
121-122 – Compean let go of the driver’s ankle when he threw the dirt in Compean’s face. The driver continued running south. Compean’s gun was on his belt. The driver did not reach for Compean’s gun, but Compean had put both his hands on his weapon. Compean was exposed but he doesn’t know if that’s the reason the driver didn’t reach for his gun.
122 – Compean didn’t see the driver pull a weapon out of his clothing there. If the driver wanted to kill Compean, he may have been able to shoot then.
122-123 – Compean turned his face as the driver threw the dirt. He got some in his face but no dirt got in his eyes. Compean told Yrigoyen that the driver threw dirt in his eyes because he threw it at Compean’s eyes but it didn’t go inside.
123-125 – The driver was running to Compean’s left. [Compean identified GOV EXH 3 as a photo of the levee road area. Compean indicated on GOV EXH 3 the levee road where he and the driver wrestled and fell down.] The driver ran off at a 45-degree angle to the southeast.
125-126 – [Compean reviewed GOV EXH 54 that contained different points marked 1-4.] Compean’s testified that the exhibit showed the opposite direction from where the driver ran that day. Compean agreed that the driver testified he ran the direction marked on GOV EXH 54, but Compean disagreed that he ran that way.
126-127 – Compean was on the ground and reached down to cover his weapon. He looked up and saw the driver running: “I looked up. I was watching him, and I saw him — he slowed down a little bit, and then I saw him turn around and look at me, and he moved his hand — his hand back.”
127 – Compean was on the ground and came up to one knee. He drew his weapon.
127-128 – The distance from the top of the levee road to the bottom vega area is 10 feet. That’s where Compean was when he came up on one knee.
128 – No weapon had been fired at that point. Compean fired first because he thought the driver was pointing something at him. Compean was on one knee and began firing. He doesn’t know where Ramos was and he hadn’t seen him at that point.
129 – Compean shot 10 or 11 rounds. He almost emptied his magazine. The magazine has 11 rounds plus one in the chamber for a total of 12. Compean didn’t empty his gun but he did reload as he came up to his feet. Compean doesn’t think Juarez could have seen him because he was at the bottom of the levee road, and the levee road is 10 feet tall.
129-130 – Compean didn’t count his shots but he knows he fired for a while. He didn’t count his shots until later on.
130 – Compean didn’t see Ramos but as he stood up and was going for his magazine to reload, Compean heard a shot. Compean saw Ramos standing a few feet ahead of him.
130-132 – Compean believes that Ramos responded to hearing Compean shooting. Compean doesn’t know what Ramos saw but he was on one knee as he shot.
132 –Compean started to reload after shooting at the driver but he couldn’t get the magazine pouch out of his belt. That’s when he started to stand up. Compean was still at the bottom of the slope so no one can see him. Compean doesn’t know what Juarez saw, although he claimed to see Compean reload. Compean agreed he was trying to reload his magazine and Compean didn’t tell Juarez before the trial he tried to reload.
132-133 – Compean didn’t tell anyone about all the shooting he had done.
133-135 – Compean shot 10-11 times and then reloaded a new magazine. Compean did not exchange magazines but he did reload: “What I did, I released the magazine. Well, there’s a button on the weapon. I released it, and that’s when I brought out the — the other one … and I — I dropped it. I let it drop” and then put in a new one with 11 rounds in it. Compean left the empty magazine on the ground, and he retrieved it as he walked back to the levee. Compean picked up the magazine because it was his magazine.
135-136 – Compean heard Ramos fire a shot. He looked over and Ramos was standing 7-8 feet ahead of Compean, to Compean’s left. Compean was still pointing his weapon.
136 – Compean doesn’t remember if Ramos was yelling although he knows Ramos testified he yelled “Stop” and the driver looked around and Ramos shot him. Compean didn’t hear anything even though he was only 7 feet away from Ramos.
136 – The last time Compean saw the driver, he was running near the edge of the river on the vega.
136-137 – Ramos ran past Compean. Ramos didn’t say anything to Compean like “Hey, Joe, are you okay?” By that point, Compean was standing up.
137 – Compean didn’t see any other agents on the scene at that point. Compean agrees that Juarez and Vasquez were both there by then, because they both testified they heard firing. No one except Ramos came to the rescue.
137 – Compean wasn’t sure how far Ramos was in the vega when he shot, but he was ahead of Compean because he could see half of Ramos’ back. Compean picked up the casings later – not when Ramos had his back turned.
138 – When Compean heard Ramos shoot, he looked toward Ramos and then he looked for the driver but didn’t see him. Compean did not see the driver fall when he was shot.
138-139 – [The prosecutor provided Compean GOV EXH 107, his 3-page statement. At that point, the Court declared a recess for the afternoon break. After the jury left, the Court indicated the parties would stay until the case was completed this evening - Friday night.]
140 – Compean fired less than 12 rounds when he was on his knee. Compean changed his magazine because he wasn’t sure how many rounds he had but he knew it was close to being empty. He reloaded because he still thought the driver was a threat.
140-141 – Ramos ran to the left side of Compean and Compean heard 1 shot. Compean didn’t see Ramos but he turned to look when he heard a shot. Compean saw Ramos has got his gun pointed straight ahead.
141 – Compean started walking toward Ramos. Compean was still looking for the driver, and Ramos was looking, too. They did not see the driver at first but they did see him again at some point. Compean isn’t sure how much time elapsed.
141-143 – As he watched, Compean was standing still in the middle of the vega with his gun drawn. The driver was somewhere in the river. It would be fair to say the driver had a clear show at Ramos and Compean since there are no trees or cover. Compean was standing next to Ramos and both were looking south. They saw the driver climb out from the river.
143-144 – The driver started walking back south, slowly. It looked like he could have been limping but Compean wasn’t sure if they had shot him. It crossed his mind but Compean didn’t think they shot the driver because he didn’t see any blood. Compean denied he ever thought the driver had been hit.
144 – Ramos and Compean kept their weapons pointed at the driver. Once Compean saw the driver wasn’t turning around, he brought his weapon down and holstered it.
144-145 – To recap, Ramos ran to Compean’s left but he wasn’t 7-10 feet past. It was closer. Ramos shot and Compean looked at Ramos. Compean walked up to Ramos and they stayed there. Later, it looked like the driver was limping but Compean wasn’t sure. Then Ramos and Compean holstered their weapons when the driver was going back over the levee, because they weren’t in fear at that time.
145-146 – Ramos and Compean started going back north to the levee road. Both of them stopped a few times and looked back. Compean heard Ramos’ testimony that he was blading and keeping his weapon drawn, but Compean doesn’t remember that and didn’t see that.
146 – As they walked back, Ramos was ahead of Compean about 5-10 feet. He’s not sure of the distance because he’s “not really good with distance.”
147-148 – After Compean holstered his weapon, Ramos asked Compean if he was okay and patted him down. Compean was still looking south. Then they walked back and Ramos was walking in front. Ramos was concerned for Compean’s safety but he was okay because he hadn’t been hit. Compean wasn’t shot but he wasn’t sure if he had been shot at.
148 – Compean knew where the driver was standing but he didn’t go look for shell casings to see if he had shot at Compean. Compean wasn’t going anywhere near the river.
148-149 – Ramos was ahead of Compean as they walked back to the levee. They had gone about half the distance on the vega before they turned back, so it took some time. Ramos went ahead when Compean told him he was okay.
149 – Compean was not blading his body as he walked. He stopped and turned.
149 – Compean saw his empty magazine and some casings as he walked toward the levee. He picked them up.
150-152 – [The prosecutor showed Compean GOV EXH 110, a little metal container that contained .40 caliber casings, and GOV EXH 111, nine rounds. The Court admitted GOV EXHS 110 and 111 without objection.] The casings and rounds are like the ones the Border Patrol agents use in their .40 caliber Berettas, the weapon Compean used on February 17, 2005.
152-153 – Compean just started grabbing any casings he saw. He didn’t count how many casings he picked up that day, but after reviewing his statement he thinks he picked up 10 or 11. When Compean gave his statement to C. Sanchez, he approximated on page 2 that he picked up 10 or 11 casings.
153 – Compean knows from Arturo Vasquez’s testimony that he looked for and picked up five casings. With the 10-11 casings that Compean picked up, that makes 14 or 15 total casings.
153-154 – Compean denied that he fired from the second clip. Compean doesn’t know whether Vasquez found casings that weren’t part of this shooting or if he found Ramos’ casings.
154 – Vasquez told Compean that he picked up 5 casings. Compean also heard Juarez testify that Compean exchanged rounds [magazines]. Compean agreed that the only way he could fire 15 rounds was if he changed clips.
154-155 – On page 2 of his statement, Compean said, “Agents Mendoza and Jacquez asked what had happened. I told them, I think Nacho might have hit him.” Compean wrote that but it’s not what he meant to write.
155-156 – Compean’s intent as he shot at the driver was “to stop the threat, to kill him, because he had a gun, and he was pointing it at me.” Compean’s intent was to kill because he thought that was the only way to stop him. He said in his statement, “My intent was to kill the alien” because he thought the driver had a gun.
156 – Compean knew the casings were evidence but he picked them up as he saw them. There was no reason. He saw them and “just automatically picked them up.” Compean held them in his hand and walked to the levee.
156-157 – Yrigoyen and Mendez arrived at the levee as Compean walked to his vehicle to secure his shotgun. Juarez, Vasquez, and Mendoza were on the south side of the ditch. Compean tossed the casings in the ditch in front of everyone. Compean doesn’t know if anyone saw him do this.
157 – Compean didn’t walk to the ditch to throw away the casings. He went to pick up his shotgun and tossed the casings in the ditch.
157-158 – The casings aren’t available for the jury to see because Compean threw them in the ditch.
158 – Compean only heard Ramos shot once. Compean doesn’t know if he picked up Ramos’ casing or not. He might have if it was near the other casings. Ramos was slightly ahead of Compean but it wasn’t as far as 8-10 feet ahead. Compean doesn’t know if he picked up Ramos’ casing but he might if it was near his magazine.
158-159 – Richards yelled out to Compean and asked, “Are you okay?” and Compean said, “I’m okay” and “I’m fine.” Compean was fine because the dirt didn’t go in his eyes.
160 – Compean got in his vehicle and drove to the CC Bills crossing. [Compean reviewed GOV EXHS 21 and 22, photos of the levee and the slope with little cans denoting where Vasquez said he picked up the 5 shell casings.] Compean didn’t shoot in that area so he doesn’t know how casings ended up in that area.
161 – [Compean reviewed GOV EXH 83B, a photo of the CC Bills gate.] Compean and Vasquez met at the CC Bills gate. Vasquez stopped on the south side of the gate and Compean stopped alongside him. They were in their trucks. Vasquez said he heard shots and asked Compean what happened. Compean said he wrestled with the guy and had to fire some rounds. Compean did not say the person had been shot or that he was limping away because Nacho hit him. At that time, Compean didn’t think the driver had been hit.
162 – Compean’s statement said he thought Nacho hit the driver but that’s not what he meant to put down.
162 – Compean was talking to Vasquez and they heard on the radio that Vasquez was to wait on the levee for the tow truck. Compean told Vasquez if he was going to be there, he would probably see some casings. Compean knew Vasquez would be on the levee and he thought Vasquez might see some up there.
162-163 – Compean did not tell Yrigoyen and Mendez about the casings because he left the area about the time they arrived.
163 – Compean mentioned the casings to Vasquez because he already knew about the shooting. It was idle conversation – “You’re probably going to see some casings up there.”
163-164 – [Compean reviewed GOV EXH 107, his statement.] Page 2 said, “I asked Art Vasquez if he could look for some rounds, if he could.” Compean agreed that statement was different than what Compean just testified to, but he reaffirmed that he did not ask Art Vasquez to pick up his casings.
164-165 – [Compean tried to explain his inconsistent statement and testimony by noting that his statement was given at 1:30-2 AM in the morning. Defense counsel objected when the prosecutor cut off Compean’s explanation. The Court overruled the objection, noting it was 5 PM.]
165-166 – Vasquez somehow got it into his head to pick up Compean’s casings and then call Compean about it, but Compean never asked him to do either. Compean was reloading his empty magazine [that he picked up at the scene] as he talked to Vasquez. Compean heard Vasquez testify he saw casings in Compean’s hand and that he saw Compean counting from his clip, but that did not occur. Compean thought Vasquez might have been confused between casings and rounds, because Compean had rounds in his hands – not casings.
166 – Compean went back to the station. He had not talked to Ramos since Ramos asked him on the vega if he was okay.
166-167 – Vasquez has been an agent 2-3 years and has had firearms training Compean isn’t saying Vasquez is confused but Compean was reloading his magazine.
167-168 – Compean went to the restroom when he arrived at the station. Compean saw FOS Richards in the processing area when he was working on the I-44. Richards asked Compean, “Joe, are you sure you — you’re — you weren’t assaulted? Because if you were, then we’re going to have to call — then I’m going to have to do an SIR. I’m going to have to call the FBI. They’re going to have to come down here. They’re going to have to come down here and interview you and everybody else that was out there, and we’re going to be here for a long time.” Compean thought Richards wanted him to say no, so he said no.
168 – In response to a question that he didn’t want the FBI or anyone else to investigate this case on February 17, 2005, Compean stated he wasn’t thinking about that.
168-169 – Compean agreed that the evidence was unavailable for investigation because of his actions.
169 – [Compean identified GOV EXH 75, the firearms policy manual.] Compean agreed that page 21 of 64, Number 2 on that page requires that he report a shooting within one hour. Compean knew that was his responsibility but he didn’t do it. Twenty-nine days passed before anyone knew he shot that day.
169-170 – Page 14 of the firearms policy manual [GOV EXH 71] states that agents are not allowed to shoot warning shots “in any situation where it appears likely that an innocent person will be injured.”
170 – Page 5 of the firearms policy manual [GOV EXH 69] states that “a reportable shooting incident means any incident involving the discharge of a firearm which occurs as described in Subsection 3H14.” The incident on February 17 was a reportable shooting incident.
170 – Compean discharged a Beretta .40 caliber firearm on February 17, 2005, but he never reported it. Compean found out a month later that someone suffered serious bodily injury as a result.
171 – [The Court sustained defense objections to the prosecutor’s duplicate question whether the casings were disposed of by Compean’s actions and whether the evidence was available for a grand jury to hear.]
Compean re-direct examination (by Chris Antcliff):
171-172 – The agents came to Compean’s house a little before midnight when Compean was asleep. Compean’s statement was given after 1 AM. No one helped Compean when he wrote his statement, and he wrote it in his own words. Agent C. Sanchez was in the room with Compean and he told Compean to write down what he remembered.
173 – Compean wrote in his statement that “Agents Mendoza and Jacquez asked what had happened. I told them, I think Nacho might have hit him.” Compean didn’t recall writing that until he read it.
173 – Compean recalled speaking to Jacquez in the processing room and he saw Mendoza in the processing room. He mentioned Mendoza’s name in the statement because he had seen Mendoza in the room earlier, but he didn’t specifically speak with him. Compean spoke with Jacquez and told him they had fired shots at the driver. Compean may have told Jacquez that he thought Nacho might have hit him.
173-174 – Compean said earlier in his statement that “I did not report the shooting, because I didn’t think anything had happened to the guy. I was afraid I was going to get in trouble.” Compean thought he would get in trouble because he didn’t think anyone would believe him once the driver was already back south. At Fabens “the agents are
always guilty until proven innocent.”
174-175 – Compean wrote in his statement that “I asked Art Vasquez if he could look for some rounds, if he could.” Compean meant that he told Vasquez he might see rounds up there on the levee. He did not ask Vasquez to pick them up or throw them away.
175 – Compean knew he didn’t have to give a statement but he did anyway because he did nothing wrong.
Government recross-examination (by Jose Luis Gonzalez):
175 – [The Court sustained a defense objection to the prosecution question whether agents are always guilty until proven innocent.] Compean stated that agents are always to blame for anything that goes wrong. Compean told Chief Barker that “Yes, I know that the agents are always to blame, and I also know that they’re always cleared.” Even though when shoots have been reported and investigated and found to be good shoots, Compean was still afraid no one would believe him because the driver was not there.
176-177 – Compean agreed that Ramos was there and could corroborate Compean’s story that the driver had a gun, and that the physical evidence would be there as corroboration.
177-178 – Compean didn’t tell anyone that the driver had a gun.
Compean re-direct examination (by Chris Antcliff):
178 – It looked to Compean like the driver had a gun.
178 – [Witness excused.]
178-179 – [All parties closed.]
180 – [The Court released the jury for the weekend and instructed them to return Monday morning for arguments and the Charge.]