Patterico's Pontifications


Ramos-Compean Update

Filed under: Law — DRJ @ 12:14 pm

[Guest post by DRJ]

Christopher Antcliff, who I believe was one of the attorneys representing convicted Border Patrol agent Jose Compean, has been appointed a District Court Judge for El Paso County by Texas Governor Rick Perry. I’m sure his appointment has nothing to do with the Ramos-Compean trial but if it did, it was only because Antcliff did an excellent job in that case. In fact, of all the attorneys, I thought he did the best job examining witnesses.

In addition, oral argument in the Ramos-Compean appeal has been set for Monday, December 3, 2007, at 9:00 A.M., before the Fifth Circuit Court of Appeals in New Orleans. The panel of judges hearing the case will be available the week prior to oral argument.

Update 11/15/2007: Osvaldo Aldrete-Davila was arrested today on 2005 drug charges. More on that here.


116 Responses to “Ramos-Compean Update”

  1. I could look this up, but maybe you can save me some time. Do you have a link to the appeal briefs?

    WLS (bafbcb)

  2. I so don’t get this. Why was their prosecution wrong again?

    Christoph (92b8f7)

  3. Christoph,
    Perhaps because the star witness lied like a rug. The only question I can see is if it can be proved that Sutton knew he was going to lie and thus suborned perjury.

    Ken Hahn (7742d5)

  4. This is perfect demonstration of what was wrog with the Ramos-Compean legal team. The defense needed to go after the throats of these corrupt prosecutors and judge but because they were Texas attorneys, they had a self interest in not rocking the boat. There would be no future appointments for any of them if they gave Ramos and Compean sufficient representation.

    j curtis (8bcca6)

  5. j curtis — and your evidence of corruption on the part of the prosecutors and judge is …..?

    That’s a bold allegation. Hopefully you’ve got something for us.

    WLS (bafbcb)

  6. I’ve written an encyclopedia’s worth about it these threads here. You can buy the book when I get it published.

    j curtis (8bcca6)

  7. WLS,

    I don’t think the appellate briefs are available online unless the defense posted them at a site I can’t find. The US Attorney posted his press releases and the trial transcript here (to his credit – he didn’t have to post the transcript) but I don’t see any appellate documents. In addition, the documents are almost certainly available through PACER but I can’t access that for anything other than business reasons.

    DRJ (9578af)

  8. Actually, DOJ has a nice little arrangement with Westlaw where we can access filed briefs in all the Circuits. It helps the appellate chiefs in the various offices keep track of the positions being taken across the circuits — but more importantly its an easy place to go find stuff to plagarize for one’s own brief.

    I just tried to find the briefs using the case number, but there is nothing up yet. When I find them I might be able to make judicious use of the contents here.

    WLS (bafbcb)

  9. j curtis — I take that to mean that you have nothing to back up your comment.

    Just like I remember.

    WLS (bafbcb)

  10. Hear, hear, WLS.

    Christoph (92b8f7)

  11. WLS,

    That would be great, not only to see the appeals points and arguments but also to confirm who is representing defendants on appeal and if there have been any amicus briefs filed. I’m also interested in the sealed trial testimony and whether the prosecution might ask to seal the appellate documents if they involve ongoing investigations.

    DRJ (9578af)

  12. 9

    Okay, WLS, you asked for it.

    They covered up the second load and still refuse to discuss Davila’s involvment more than two years after the incident.

    What everyone isn’t fully grasping yet is the reason why they covered up that second load. To withhold evidence so that they could convict Ramos and Compean was just part of the reason why it was covered up. Davila was able to bring the dope to Cipriano Ortiz because Ortiz was not in jail after being busted before that with hundreds of pounds of dope at his house. Sutton kept him open for business, he did not prosecute.

    j curtis (8bcca6)

  13. They didn’t cover up the second load. It was disclosed to the court and to the defense counsel.

    The defense counsel wanted to admit evidence of the second load to impeach Davila, but the Judge said no. There are perfectly valid legal reasons that are well-established in the laws of evidence that prohibit the introduction of ALLEGATIONS about uncharged and unproven criminal conduct against a witness. The judge followed that law.

    Go find a source other than Jerome Corsi for your information.

    WLS (bafbcb)

  14. “Okay, WLS, you asked for it.”

    Ummm, j curtis, maybe you misunderstood what WLS said. He wasn’t asking you for you to make an assertion in the format of grabbing facts from your ass and stating they are true. He actually wanted you to provide some proof we should believe the facts you allege are true.

    Christoph (92b8f7)

  15. Go find a source other than Jerome Corsi for your information.

    My source is PACER. Guess where Corsi got the court documents?

    j curtis (8bcca6)

  16. j curtis, PACER is not a source, it is a repository of Federal court filings. If you have read a particular filing, then the author of the filing is your source. If you are repeating Corsi’s representation of what a filing says, then Corsi is your source.

    SPQR (26be8b)

  17. I read the documents. They cost me 8 cents a page. Anymore questions?

    j curtis (8bcca6)

  18. I was under the impression that Jerome Corsi also got information from family members of one or both defendants and/or from their investigator(s).

    j curtis, What documents are on PACER in this appeal?

    DRJ (9578af)

  19. Well, j curtis, if you read something written by someone else who you haven’t named, and these documents actually cost you money, why… that is completely inadequate proof that the prosecutors and judge are corrupt.

    However, in your defense, we all know prosecutors and judges like to take politically unpopular stances against agents the American people consider heroes. It couldn’t possibly be that they thought there was a crime and each fulfilled their respective roles honorably.

    You say they didn’t. Why don’t you provide some proof — even 8¢ worth?

    Christoph (92b8f7)

  20. Why don’t you provide some proof — even 8¢ worth?

    Well, if you want to read the actual court document that supports my claim that Cipriano Ortiz was busted with 998 pounds of dope at his house on March 11, 2004, a year and a half prior to the “October load” incident, and that he wasn’t prosecuted for it, Corsi posted the actual pdf document that shows this over at WND. Here is a link to the page that shows this:

    This page has all the documents of the complaint and indictment against Ortiz:

    I can verify that the documents posted there say exactly what the originals on my hard drive say, in case you want to desperately whine that the documents at WND are forgeries that Corsi cooked up.

    DRJ: I’ll look into the appeals thing for you.

    j curtis (8bcca6)

  21. Interestingly, j curtis, you are proving the part of your allegations that people are not disputing.

    That would be called “the easy part”.

    SPQR (26be8b)

  22. you are proving the part of your allegations that people are not disputing.

    Oh really? So we are all in agreement that Johnny Sutton kept Cipriano Ortiz’s stash house open for business after refusing to prosecute a half-ton drug bust? Sutton’s guardianship of Ortiz’s drug running operation would have been dropped like a bomb on the court. Sutton had to prevent that from happening.

    j curtis (8bcca6)

  23. No, now you are getting back to unsupported allegations again. Allegations your links don’t support.

    Amusing how you do that.

    SPQR (26be8b)

  24. j curtis — here’s what’s missing in all the stuff you’ve posted. Maybe I didn’t see it in looking through your stuff, so point it out to me if I’m wrong:

    What is the EVIDENCE that Davila was the driver of the Oct. 2005 load?

    So far as I can tell, everything relies upon Cipiano-Ortiz’s claim to DEA that Davila was the driver of the second load.

    Is there any evidence to back up that claim?

    If not, is it really your contention that Compean and Ramos should have been allowed to put Cipriano-Ortiz on the stand to say

    “The 1000 pounds of MJ found in my house, which has been used as a stash house in the past, weren’t my 1000 pounds of MJ, but were delivered to my house by this guy I didn’t know but he knew my brother so I let him store his stuff at the house when his truck broke down, and he’s the guy with a the tube stuck in his peepee just like me because he was shot by the BP.”

    The fact that the judge didn’t allow this testimony is your basis for claiming the judge was corrupt?

    WLS (bafbcb)

  25. So far as I can tell, everything relies upon Cipiano-Ortiz’s claim to DEA that Davila was the driver of the second load.

    Is there any evidence to back up that claim?

    There is a ton of evidence which I’ve provided for you on several occasions. I know you like to play dumb, dumb-play is pretty much all you have in your arsenal at this point. It would be nice if there was a “ramos and compean” category on the sidebar so I could just link the stuff for you every time you feign ignorance.

    j curtis (8bcca6)

  26. Well, j curtis — how about indulging me.

    I read what you posted, and it all comes back to Cipriano-Ortiz telling the DEA that Davila had delivered the load.

    No one seems to have seen Davila (other than Cirpriano), and he wasn’t arrested at the house.

    So, what is the EVIDENCE that Cirpriano is telling the truth?

    WLS (bafbcb)

  27. Just type “ramos compean” in this site’s search engine to the right of comment #7.

    nk (09a321)

  28. Evidently, people who don’t share j curtis’ opinion of the weight of the evidence are “corrupt”.

    SPQR (26be8b)

  29. j curtis is at this moment following nk’s suggestion to use the search engine and I expect j curtis to return at any moment with a mountain of compelling evidence that could and should have actually been introduced in court.

    Christoph (92b8f7)

  30. Oh, and by the way, j curtis, that search box on the right is interesting because it shows that in July when you supposedly showed so much evidence here, that you got your tail end handed back to you on several issues where you took Corsi’s word on facts that weren’t so.

    SPQR (26be8b)

  31. SPQR — I’m having a bit of a senior moment, and not remembering the details, but I recall catching Corsi in a huge mistake with respect to dates on one of his documents, and the discrepancy completely undercut the point he supposedly made in one of his columns. I’ve gone back and looked at a couple of those old threads, but they’re too dense to find a needle in a haystack like that.

    But, I clearly have the recollection that none of the Davila bashers have ever been able to point to any fact that backed-up Cipriano-Ortiz’s claim that it was Davila that drove the Oct. 2005 load to his house.

    The dispute at trial was simply that the defense wanted to ask Davila if he drove the Oct. 2005 load to show that he was a liar when he claimed that when he was shot in Feb. 2005 it was his first time and he needed the money to pay his mother’s medical expenses.

    The prosecution simply pointed out to the court that Davila would assert his Fifth Amendment rights if questioned about criminal conduct for which he had never been charged. That’s not taking a position on whether he was or wasn’t involved, since guilt may not be inferred under the law from the invocation of one’s Fifth Amendment right. Because he would invoke, there was no purpose in asking him the question in front of the jury.

    Since he doesn’t answer the question in front of the jury, there is no purpose for bringing in another witness to contradict a non-answer by Davila, so there is nothing for Cipriano-Ortiz to testify about. The most he could have been worth would have been to show that Davila was a drug smuggler — but I don’t think the jury was ever in doubt on that point since 750 lbs of MJ were found in the van he was driving just prior to getting shot.

    WLS (bafbcb)

  32. I’m not trying to foreclose or reopen discussion on the merits, especially since there may be appeal briefs available soon that will yield a much better discussion.

    However, I believe there are at least two issues addressed in the sealed testimony. One involves Osvaldo Aldrete-Davila’s alleged second drug offense but the second involves Nolan Blanchette’s testimony about Rene Sanchez. I think defendants will argue that these issues, together with the scope and nature of the benefits and protection provided to OAD by the prosecutors and the trial court, raise similar concerns to those raised in the Sipe case. Although it’s not exactly on point, Sipe has enough similarities that I’m interested in if/how the Court will distinguish it.

    DRJ (9578af)

  33. DRJ,

    I just sent Patterico’s email the PACER stuff for you. Hopefully he can forward or you can access his email.

    Desperate Sutton Defenders,

    Sutton is still refusing to comment on Davila’s involvemnt in the October load more than two years after the incident. You think that as long as Sutton continues to evade the question that you can say Davila wasn’t involved in that drug delivery. It’s just like the Kerry backers who get to say that the Swift Boat Vets are wrong just as long as Kerry can prevent his military records from being made public. Well guess what, the Swift Boat Vets were right about Kerry and I’m right about Sutton.

    j curtis (8bcca6)

  34. j curtis,

    I can’t access Patterico’s email but I know he will forward it if possible. Thanks for sending it.

    DRJ (9578af)

  35. SPQR — I’m having a bit of a senior moment, and not remembering the details, but I recall catching Corsi in a huge mistake with respect to dates on one of his documents,

    He had a date wrong concerning when some affidavit was signed or some detail like that. Red herring that has nothing to with Sutton’s involvment with Cipriano Ortiz. I understand your desperation though.

    j curtis (8bcca6)

  36. WLS, you will find your work on that on a July 17 thread about Ramos-Compean.

    j curtis, WLS is not desperate here. In the July 17 thread, you attempted to undercut the credibility of the investigation by claiming that one of the officers had been lied to about a ballistic match of his weapon – which itself was a red herring on your part. You were repeating dates given by Corsi that fell apart.

    SPQR (26be8b)

  37. Just so DRJ, WLS, Patterico, or even Justin knows, the PACER stuff can be reprinted at will so don’t be shy in filling us all in, j curtis. You can do it yourself by copy and paste or, better yet, hosting it on a web server somewhere.

    Christoph (92b8f7)

  38. Just so DRJ, WLS, Patterico, or even Justin knows, the PACER stuff can be reprinted at will [link provided previously, but ate up by the spam filter] so don’t be shy in filling us all in, j curtis. You can do it yourself by copy and paste or, better yet, hosting it on a web server somewhere. Point being do share the knowledge and let us judge for ourselves.

    [Edit: I found your comment. It’s now #37. — DRJ]

    Christoph (92b8f7)

  39. Cut and pasted it into the email but then did another cut and paste since so I don’t have it anymore. There was no evidence or anything that looked interesting but I spent a buck twelve so I figured I’d send it to DRJ just in case she could see something in it that looked interesting. Lots of phone numbers of politicians and such. I don’t think you’re missing out on anything.

    j curtis (8bcca6)

  40. “There was no evidence or anything that looked interesting but I spent a buck twelve…”

    j curtis

    Bless you, man. I haven’t laughed that hard since I don’t know when.

    Christoph (92b8f7)

  41. Someone asked for some proof of corruption. There is an interesting article here.

    An interesting article on the failure to prosecute
    Osvaldo Aldrete-Davila at

    Bud Dickman (7cfd24)

  42. I’d like to weigh in. If anyone questions Sutton’s motivation behind protecting drug smugglers, just research the “House of Death” case. He sanctioned a murderous informant to continue working for the feds who ended up compromising undercover DEA agents and their families in Mexico, just so he could save his case. Not to mention the 4 other cases against law enforcement officers he pursued while maintaining a cozy relationship with the Mexican Consul.

    I’d also like address the 5th amendment issue. That is a major point in the appeal (which i’ve read the defense’t response is sealed, surprise surprise.) If you’ve read the transcripts, you’ll see there is serious discussion about the type of immunity agreement actually given to Davila. Kanof finally concedes that it was “a weird, kinda hybrid immunity.” What the hell does that mean? Even though Judge Kardone expressed frustration over the fact the prosecution couldn’t fully explain what type of immunity Davila had, she still ruled in their favor to keep the testimony out. But if Davila had full immunity, then there was no reason to invoke 5th amendment right. It’s redundant, therefore it violates the defendants’ right to thoroughly cross examine the witness.

    Or how about the fact that Sutton can’t explain why he granted Davila unconditional border crossing cards even AFTER they knew about the 2nd October load. He changed his story 3 times from the Senate hearing to media stories. First he answsered Sen. Feinstein by saying they would have absolutely pulled the border cards once the 2nd allegation was known. But the actual cards so dates issued 3 more times AFTER the 2nd load occurred. Then Sutton tried to blame DHS for giving the cards and then he said the cards were made out but never physically given to Davila. C’mon, which is it Mr. Sutton?

    One more point…why did Sutton add the 924c gun charge 6 months after the fact if it wasn’t strictly a vindictive act? If you research the historic intent of that statute, it is NOT intended to be applied in situations like this case. Two amicus briefs have been filed on this.

    Last point…prosecutors flat out lied and misrepresented Davila and his knowledge of what he was transporting during the grand jury proceedings. I’ve read them and it’s dispicable what they said and did to get the indictment. They allowed Davila to say he didn’t know what was in the van when he testified in front of the grand jury, yet in the DHS-OIG report issued by Christopher Sanchez, he says the reason Davila initally lied about smuggling drugs was because he was afraid of getting prosecuted which is why his childhood buddy and current border patrol agent Rene Sanchez advised Davila to ask for immunity.

    GOP Princess (28da4a)

  43. GOP Princess,

    Is there a transcript available for the grand jury proceedings?

    j curtis (8bcca6)

  44. This amicus brief is very interesting. The firearms enhancement has always bothered me in this case. These agents were not only lawfully armed they were obligated to be armed and armed by the government itself. The amici argue that the enhancement was improperly charged in the indictment.

    nk (09a321)

  45. Ihope both these agents get clemency and are restored to their full jobs and that drug trafficer is aresed and sent to prison where he belongs and tell mexico to TAKE A HIKE

    krazy kagu (6b296a)

  46. I’ve just come back to this thread and found GOP Princess’s post. I’ll be responding to it later today.

    But, as for the gov’t brief being under seal, I doubt that is the case. A portion of the brief may be under seal if it deals with matters that were sealed in the district court, and that sealing order hasn’t been lifted. We know what those conversations concerned — the ongoing investigation into the loads continuing to come.

    The defense may have been able to make their points in their brief without relying on anything in the sealed portions of the trial transcript. If the gov’t could not do that, then the gov’t was compelled by court order to seal some (maybe all) of its brief.

    I would be interested to know if the defense brief which GOP Princess read is available online. I’d simply like to know what claims of error are raised.

    wls (a6fede)

  47. WLS, would you comment specifically on the firearms enhancements which bothers nk and which many people have said they thought was, at least, a vindictive and petty bit of prosecution?

    My position at the moment is the prosecution was justified and it’s fortunate these two agents were taken off the streets so they can’t shoot other fleeing suspects, quite maliciously. Yet I remain open to arguments on the other side.

    Christoph (92b8f7)

  48. *enhancement

    Christoph (92b8f7)

  49. As to Christoph’s post — the firearms counts were not “enhancements.” 924(c) is a stand-alone provision passed by Congress that says using a firearm in the commission of certain crimes (crime of violence or felony drug offense) is more serious than not using a gun, and Congress deemed that such use warranted a much longer sentence than if a knife or club was used.

    The principal crime with which the defendants were charged was a violation of Sec. 242 — deprivation of civil rights under color of law. The civil right at issue was the right to be free from unreasonable seizure — protected by the 4th Amendment. Shooting someone who poses not threat to the officer or another person is an “unreasonable seizure.” Whether Davila was a threat to Compean or Ramos was a question the jury had to decide, and they decided he was not.

    Sec. 242 has long been defined as a “crime of violence” by courts all across the US.
    I repeat — it is a CRIME — and law enforcement agents are subject to it because it applies to actions “under color of law.” The statute protects any “person” in any “State.”

    Section 924(c) states, in pertinent part: “any person who, during and in relation to a crime of violence… for which the person may be prosecuted in a court of the United States, uses … a firearm … shall, in addition to the punishment provided for such crime of violenceif the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

    I don’t really care what sophistry or legislative history the defendants and amicus briefs try to employ. This statute is clear and unambiguous on its face. It 100% applies to the situation at hand. The defendant’s committed a crime of violence, and they did so using a firearm, not a knife, rock, club, or screwdriver.

    It is EXTREMELY COMMON for federal prosecutors to not charge every crime for which they have evidence in an initial indictment, and to attempt to leverage a guilty plea by threatening more severe charges if the defendant does not plead guilty to the pending indictment. This saves time and resources since 95% of all cases end in pleas. There is no reason why every indictment has to be 50 pages long and 4 hours of grand jury time, when a more abbreviated indictment that can result in a guilty plea might take only 10 pages and 30 minutes of grand jury time.

    Same thing was done to Michael Vick.

    I’m going to do the same thing in about 4 hours.

    If a defendant opts to stand on his plea of innocence, and face a jury of his peers, putting the prosecutor to the burden imposed by the constitution to prove the defendant’s guilt beyond a reasonable doubt, then the prosecutor is entitled to admit into evidence at trial the full scope of the admissible evidence against the defendant, and to have the defendant fact the most serious charges warranted by the evidence.

    That’s the way the system has worked for a couple hundred years. Just because people have political objections to the outcome here isn’t an indictment of the system.

    WLS (bafbcb)

  50. In response to WLS and Christoph,

    The grand jury proceedings are not available online. I have an inside track on this case. And yes, the Government’s response is absolutely SEALED. They asked for it to be sealed over the summer when they filed their brief.

    As far as these guys being guilty of shooting an unarmed man or fleeing suspect. If you read the trial transcripts you will see that Davila took the agents on a high speed chase throughout the town of Fabens. He then abandoned the van full of drugs and took off running. Compean even radioed in the call sign for suspected drug trafficking because of the weight of the van and the location, which was his hunch as an experienced agent that Davila was smuggling drugs. And guess what, he was RIGHT.

    Now, they was a physical scuffle before Compean shot at Davila. Where I’m from that’s called resisting arrest. If Davila was such an innocent guy why didn’t he just give up? Why run? And he absconded into Mexico so there’s no way of ever knowing whether he was armed or not. The testimony of the other agents who claim they saw what happened is completely not credible. They were pressured by the prosecution to tell the stories that made their case and they were threatened with prosecution which is why all the other agents who testified AGAINST Ramos & Compean were given immunity. Also, if you’ve ever been to the scene of the shooting, it’s a physical impossiblity to see what they claim they saw from that vantage point. There’s a levy, a vega and drainage ditch.

    The 924c charge is in fact called a SENTENCE ENHANCEMENT. It cannot be brought on its own. There was no reason to add that on other than as a threat. The original co-sponsor of that statute said his intent was to send a message to criminals to “leave their guns at home.” That is clearly counter to what a law enforcement officer is tasked to do in the line of duty. They have to make split second decisions in life threatening situations and the border is not exactly Sesame Street and there’s mountains of evidence that proves how dangerous the border is. However, the idiot Judge Kardone didn’t not permit the dangerousness of the border to be allowed into the trial because that would have established the agents reasonableness in believe Davila was armed.

    I have a real issue with the Justice Department approving the Civil Rights charge in the first place. All 242 charges must be approved through the DOJ office of Civil Rights, so don’t tell me this wasn’t a politically motivated prosecution. That was added late on as well, even after they knew about Davila’s 2nd drug smuggling incident. This makes a mockery of what civil rights laws were truly intended to protect.

    And when a Judge keeps out such vitally important information during motions in limine, then a jury isn’t fully aware of all the circumstances of the case. 3 Jurors already went on record and in signed affidavits and said if they had known about Davila’s 2nd drug load they wouldn’t have voted guilty. And they also said the jury foreman misintructed them by saying they couldn’t have a hung jury.

    GOP Princess (28da4a)

  51. Margarita Crispin has a court date tomorrow. Guess who the investigator is?

    The Bush people are constructing an alibi for their crimes. They will say that there has been a four year investigation. Somehow they will claim that this investigation required them to leave stash houses open for business and dirty customs agents letting drugs pass through the border for years after learning of these operations. Davila will be said to be an informant. Sutton, R.Sanchez, and especially C.Sanchez will be shown to be heroes! C.Sanchez will be given an award, presented by Chertoff or perhaps Bush himself, and he’ll get a promotion.

    j curtis (8bcca6)

  52. “Section 924(c) states, in pertinent part: “any person who, during and in relation to a crime of violence… for which the person may be prosecuted in a court of the United States, uses … a firearm … shall, in addition to the punishment provided for such crime of violence … if the firearm is discharged, be sentenced to a term of imprisonment of not less than 10 years.

    “I don’t really care what sophistry or legislative history the defendants and amicus briefs try to employ. This statute is clear and unambiguous on its face. It 100% applies to the situation at hand. The defendant’s committed a crime of violence, and they did so using a firearm, not a knife, rock, club, or screwdriver.

    This, plus the rest of your comment, was very helpful in my learning more about your system of law, these specific charges, and why the prosecutor acted the way he did — and how you will personally be acting in the next couple hours.”

    I can’t disagree that the statute is very clear on its face.

    GOP Princess says, “The 924c charge is in fact called a SENTENCE ENHANCEMENT.” Which would explain why nk used that term. I don’t know enough about your legal practice to be aware of which one is the correct term. Standalone crime or sentence enhancement. Are they mutually contradictory or both accurate?

    To me, that’s a semantic point. The statute itself seems clear and I believe, in my position as interested layperson, was likely applied correctly. In this case I have never understood why the hue and cry against the prosecution. It always made sense to me.

    Gop Princess seems to be REALLY stretching. She says (as one of many examples of thinking I disagree with):

    “I have a real issue with the Justice Department approving the Civil Rights charge in the first place. All 242 charges must be approved through the DOJ office of Civil Rights, so don’t tell me this wasn’t a politically motivated prosecution.”

    So, because they followed the process they have to follow, ergo, it has to be politically motivated? (And what’s more, she goes the extra step of saying you can’t even tell her it might not have been?)

    It’s that kind of unreasonable bias that leads me not to want to take her many assertions at face value and instead to want hard facts for her very strong and largely unsupported claims.

    Christoph (92b8f7)

  53. GOP Princess — I don’t know where you came from on this thread, but you should take some time to use the Search button here and go back to last March and then in the summer for threads started by DRJ on this topic.

    DRJ summarized EVERY DAY of trial testimony from the transcripts. I then went through the transcripts themselves and explained — from my perspective as an AUSA with 15 years experience and 3 dozen federal criminal trials just like this one — why the jury believed the gov’t witnesses and rejected the nonsense claims made by Compean and Ramos in their testimony.

    You comments are right out of a defense talking points memo. You only ignore the fact that nearly every claim you make was rejected by the jury which heard all the evidence.

    As for 924(c) — its not a “Sentence Enhancement” and its not titled as such. Sec. 924 is the penalty section for all firearms offenses. Sec. 924(c) is a sentencing provision that relates to other crimes committed with a firearm. And, it is NOT necessary to prosecute the defendant for the underlying crime in order to bring a 924(c) count. I can’t think of a reason why a prosecutor wouldn’t want to prosecute both, but by its own language the statute says it applies to the use or carrying of a firearm during and in relation to a crime of violence for which the person MAY be prosecuted in a court of the United States. It doesn’t say the person must be prosecuted for that crime.

    The prosecutor has to prove that it was used “in during and in relation to” the other crime, so that other crime must be established in the evidence, but that’s not the same as saying the person must be charged with that crime.

    And, since you seem to know so much about the defense theory of the case, please answer the qeustion that I have put to j curtis —

    What EVIDENCE is there — other than the statement of Cipiriano-Ortiz — that Davila was the driver of the Oct. 2005 load that Cipriano claims Davila left at his house?

    If its possible that Cipriano was lying — and there is no proof of what he says beyond his statement — what basis would there be for asking Davila the question in front of the jury?

    Now go read Evid. Rule 608(b) and tell me how a judge is supposed to let that question come in?

    WLS (bafbcb)

  54. “You comments are right out of a defense talking points memo. You only ignore the fact that nearly every claim you make was rejected by the jury which heard all the evidence.”

    — WLS

    And therein lies my feeling. I haven’t analyzed the case as you have, DRJ has, the prosecution, defence, GOP Princess, etc., has… but no one, not WND, not Sean Hannity, not the many Ramos-Compean advocates have given me any reason to doubt the jury. The jury — 12 of them — devoted a significant portion of their lives to finding the truth in this situation and I simply can’t believe they had it out for two border guards, in support of a foreign drug dealer no less.

    So, barring something actually resembling evidence — particularly evidence that could be admitted into trial per the evidentiary rule WLS refers to and any others applicable — I support the jury’s verdict, the judge’s honor, and the prosecutor’s sincerity.

    And I don’t do this in every single case, but you gotta throw me a big meaty bone if you expect me to do otherwise.

    Christoph (92b8f7)

  55. I accept WLS correction about 924(c). (We have a catch-all “armed violence” statute in Illinois which is similarly a stand-alone crime although in recent years the legislature has passed more specific laws involving firearms and bodily harm, or especially protected victims such as school-children.)

    nk (09a321)

  56. P.S. However, under Illinois’s one-act-one-crime rule the sentences for the civil rights violation and the use of a firearm would have run concurrently. 😉

    nk (09a321)

  57. I highly recommend NK’s amicus brief link from his comment #44. In fact, here it is again.

    Beginning at page 10 of the link, the brief addresses the elements of the offense vs the offense as a sentencing factor. If I’m reading the brief correctly, WLS and GOP Princess may both be right. Specifically, WLS is right that this is normally a separate offense. However, if the amicus brief is correct, GOP Princess may be correct that because of the way it was charged the offense can only be used as a sentencing factor provided there is also a conviction for an offense under a preceding subsection (which there was not in this case).

    DRJ (9578af)

  58. DRJ — that analysis requires more brain power than I can muster right now — my attention is elsewhere.

    But, my recollection is that the amicus brief takes a Supreme Court decision a few years ago (Harris, I think) on armed bank robber v. bank robbery, but turns the analysis from that case on its head. There are lots of things different in Harris than in Compean — the most significant of which is that “armed bank robbery” and “bank robbery” are part of the same statute, unlike Sec. 242 and Sec. 924(c).

    When I’ve got some more time I’ll read that brief again. My recollection, however, is that the rationale seemed tortured to reach the desired outcome — which is true in about 99% of all appeal briefs.

    WLS (bafbcb)

  59. from my perspective as an AUSA with 15 years experience

    A strange and desperate appeal to authority. Does being a member of the club of one of the sides make your arguments somehow less biased than other arguments?

    You only ignore the fact that nearly every claim you make was rejected by the jury which heard all the evidence.

    An embarrassingly absurd appeal to authority. Would you say that in a forum discussion about the OJ Simpson case? If not, why not?

    Would you even say that in a forum about the Charles Manson trial if someone there was claiming that Manson was innocent? Punt it over to the jury? If not, why not?

    j curtis (8bcca6)

  60. j curtis, what is embarrassing is your words.

    Christoph (92b8f7)

  61. No – but it gives me a lot more insight into how these cases play out in a courtroom and how juries react to evidence they hear than you will ever have.

    I read the transcripts. I understand the rules of evidence. I read the law enforcement reports what have been posted on the internet.

    You, on the other hand, had trouble telling the difference between a “Bullet Analysis” and a “Ballistics Report,” and you couldn’t understand how a Criminal Complaint could be file-stamped by the Court on March 21 if it had been signed by the judge on March 18 (after first relying on Corsi’s claim that it was March 15) — other than to opine that Homeland Security had somehow altered the document.

    A big difference in the Simpson case was the fact that Simpson never took the stand and exposed himself by lying.

    Some of the best evidence the government had against Compean and Ramos was their own pathetic efforts to lie-away their conduct on the witness stand.

    Why is it, do you think, that prosecutors live for the opportunity to actually cross-examine a defendant since we don’t have the ability to put them on the stand?

    Why? Because they’re usually our best witnesses against them.

    WLS (bafbcb)

  62. WLS,

    The brief does rely on Harris and I defer to your opinion that the application is questionable. However, it also relies on United States v. McGilberry, 480 F.3d 326, 328-329 (5th Cir. 2007), a Fifth Circuit case decided this year. I haven’t read McGilberry (nor do I have time right now) so I don’t know if the amicus brief’s reliance on that case is well-placed.

    DRJ (9578af)

  63. 60

    Thanks for your important contributions to the discussion.

    j curtis (8bcca6)

  64. j curtis, I have added to the discussion at various points. You make strong allegations then helpfully point out you have no evidence for them after claiming you do. Then you insult someone vastly more experienced (and if I may say it, intelligent) than you are are. Such is your contribution.

    Christoph (92b8f7)

  65. I was reading about McGillbery a bit yesterday. He was involved in a drug bust at a hotel room and the police broke down the door and McGillberry was sitting at a table and his gun was on the table. He didn’t use the gun in the commission of any crime, he just had the gun on him, or near him. It didn’t strike me as the right example to compare Ramos and Compean to but I suppose it does show extenuating circumstances can invalidate the same charge.

    j curtis (8bcca6)

  66. You, on the other hand, had trouble telling the difference between a “Bullet Analysis” and a “Ballistics Report,”

    Can you give me a link to that ballistics analysis? I don’t want to have trouble “telling the difference” so I want to see ballistics report to help me understand the distinctions.

    j curtis (8bcca6)

  67. Some of the best evidence the government had against Compean and Ramos was their own pathetic efforts to lie-away their conduct on the witness stand.

    So your punt to the jury was based on the jury’s feelings about the defendants’ testimony? How do you know that?

    j curtis (8bcca6)

  68. Well, j curtis, I find 65 to be an interesting observation on your part because you recognize an issue that has perplexed courts and prosecutors for a few years now.

    Congress amended 924(c) a few years back. The statute formerly convered only “using or carrying” a firearm. A couple different courts ruled that unless the weapon was “carried” on the person of the defendant, the statute didn’t apply. Thus, a few convictions were overturned where a gun was found in a car during a drug deal.

    Congress amended the statute to include the language “possess in furtherance of”, and the legislative history made clear that “constructive” possession was sufficient. “Possession” has long been defined in the law as having control over some thing, and does not require physical possession of the object. So, a gun on the floor of a car during a drug deal is “possessed in furtherance of” the drug deal even though it is not “used” or “carried” by the defendant.

    I suspect the MCGillbery case is simply a Fifth Circuit decision tackling that issue — whether a gun on a table in a room where a drug deal takes place is “possessed” by an occupant of the room “in furtherance of” the drug deal.

    WLS (bafbcb)

  69. No, as best as I can tell, McGilberry stands for the proposition that a flaw in the indictment, which is plain error, can be cured by a proper jury instruction and otherwise fair proceedings.

    nk (09a321)

  70. Here’s the free link to Gilberry although you might want to print it out because the pages are a little bit mixed up on the .pdf.

    nk (09a321)

  71. re the ballistics report — I don’t think it has ever been posted online. But what you called a “ballistics report” was captioned “Bullet Analysis” and the content of the report simply said the slug removed from Davila was a .40 caliber hollow point from a brass jacket (if I recall correctly). It said nothing about its ballistics and what gun it matched.

    Sanchez’s criminal complaint affidavit says he received a ballistics report that matched the slug to a slug fired from Ramos’ service weapon.

    Federal Rule of Criminal Procedure 16(a)(1)(F) requires “Upon a defendant’s request, the government MUST permit a defendant to inspect and to copy or photograph the results or reports of any physical or mental examination and of any scientific test or experiment ….

    The defense stipulated that the slup removed from Davila was fired by Ramos using his service weapon.

    The defense has never claimed that it did not receive a ballistics report that reflected what Sanchez said in his affidavit. The fact that no one has ever posted it on the internet is not evidence that it doesn’t exist.

    Until you point to some FACT or piece of EVIDENCE that supports your claim that no ballistics report was ever given to the defense, this argument is at an end.

    WLS (bafbcb)

  72. There are two comments of mine with a free link to McGilberry in electronic limbo.

    [I found your comment in the spam filter and it should show up here. Thanks for the link. — DRJ]

    nk (09a321)

  73. Okay, the description of the incident was plain error for bringing of the charge. Does it have nothing to do with the 924c in both cases?

    j curtis (8bcca6)

  74. re the ballistics report — I don’t think it has ever been posted online.

    But we can assume that the defense team has seen the ballistics analysis report with all the data about how the Ramos weapon fired the bullet, right? I actually suspect that you must be right about that because the defendants’ lawyers would have been raising bloody hell if that report wasn’t available to them. Curious that it’s not available to me though. I would like to see it.

    j curtis (8bcca6)

  75. 68

    That sounds like a good topic for lawyers to debate…I ain’t a lawyer.

    j curtis (8bcca6)

  76. McGilberry is a simple case, and it goes to the point I made about the change in the language of the statute a few years ago.

    Here the prosecutor was careless in the language he/she used in drafting the indictment on the 924(c) count. As I noted above, there are two descriptions of conduct in 924(c) that can support a conviction:

    1) using or carrying a firearm during and in relation to a crime of violence or drug traffickign crime.

    2) possessing a firearm in furtherance of a crime of violence or drug trafficking crime.

    There has been a lot of head-scratching by prosecutors and judges over why Congress decided to write the new statute in this fashion rather than simply add “possess” to the “use and carry” language of the old statute.

    But what happened in McGilberry is that the prosecutor in the indictment charged the defendant with “possessing a firearm … during and in relation to a drug trafficking crime”. That is a hybrid, and it does not track the language of the statute.

    The jury instructions told the jury that the defendant could be convicted if they found that he “carried a firearm during and in relation to” a drug trafficking crime — a correct characterization of the language of the statute.

    The defendant had failed to object to the language of the indictment at trial. This means that the “plain error” rule applied — his conviction would only be reversed if the claimed error was “plain” AND if “affected substantial rights”. The second part of that test is a very heavy burden for a defendant. Even if there was an error, the defendant must show and the court must agree that the error “seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”

    Because the evidence against the defendant was “virtually uncontroverted” and because the jury instruction given to the jury correctly described the elements they had to find to render a guilty verdict, the Court determined that the error did not, in this case, “seriously affect the fairness, integrity, or public reputation of judicial proceedings.”

    Trials need not be free of all error, only prejudicial or unfair error. The error in McGilberry was neither in light of the evidence.

    WLS (bafbcb)

  77. 73 — yes j curtis, the defense lawyers and all the advocates for Ramos and Compean would be screaming from the rooftops of the courthouse if they had never been provided a ballistics report showing that the slug in Davila came from Ramos’ service weapon. If the bullet didn’t match it would have been a slam-dunk defense verdict.

    If the ballistics analyst wasn’t able to say whether it matched or not, it would have been s slam-dunk defense verdict.

    So, the defense had EVERY MOTIVE to see that report, and the Rules entitled them to the report.

    If there was ANYTHING fishy about that report, the world would know it by now.

    That’s why I put so little credence in the comments coming out of the defense camp because they trumpet so much stuff that is simply blatantly and demonstrably false.

    WLS (bafbcb)

  78. WLS, I’m curious about something as a layperson that doesn’t know much more about the legal system than I see on TV or read about.

    Why does the defense try things that are blatantly and demonstrably false? This seems to happen a lot. And it gets them a lot of publicity and street cred, yet if I’m not mistaken, it almost always fails with appeals courts, doesn’t it? Or am I missing something?

    Do judges fall for this stuff a lot like they do on Law and Order? Or do they mostly get it and not let the wool be pulled over their eyes?

    Christoph (92b8f7)

  79. 76

    There is still the problem that it’s not available to ME. And the concerns raised in comment #4 would express my concerns about the facts being acknowledged outside of that immediate councel.

    j curtis (8bcca6)

  80. Sometimes because they have nothing to work with.

    99% of the people who get indicted are guilty of the crimes for which they are indicted.

    Defending guilty people when they insist on a defense being put forward for them can be taxing and tricky. Many times the attorney ends up looking like an idiot.

    WLS (bafbcb)

  81. Does anyone know of a link to the indictment itself in this case?? I’d like to see what it is the amicus brief is arguing with respect to the way the 924(c) count is worded.

    WLS (bafbcb)

  82. 78 — why should it be available to you?

    My files aren’t available to you either.

    Why do you think you’re entitled to look at them?

    WLS (bafbcb)

  83. Sometimes because they have nothing to work with.

    Yes, but just a rhetorical question here: If they have nothing to work with, isn’t their obligation as officers of the court not to “work with” blatantly and demonstrably information and theories?

    Christoph (92b8f7)

  84. 81 — why should it be available to you?

    The bullet report is available, why not the ballistics report?

    j curtis (8bcca6)

  85. There were many reports and other documents that were appended to Sanchez’s OIG report, but were not made PDF’s for the internet.

    I don’t know why. So what?

    WLS (bafbcb)

  86. 84

    So what? I’d like to see it.

    j curtis (8bcca6)

  87. What is the big problem with me seeing the ballistics analysis?

    j curtis (8bcca6)

  88. How about because it is irrelevant to the criminal trial and appeal because the defense agreed that it was his bullet in the victim.

    SPQR (26be8b)

  89. How about because it is irrelevant to the criminal trial and appeal because the defense agreed that it was his bullet in the victim.

    That doesn’t cut it because the stipulation was agreed to on the premise of ballistics evidence that hasn’t been proven to me to exist. It may well exist…it may even be the defense that is responsible for the ballistics report not reaching my eyes. I’m considering the evidence from my point of view and only my point of view.

    j curtis (8bcca6)

  90. WLS,

    The point raised by NK in his comment #44 and in the amicus brief is that Counts 4 and 5 of the charge do not conform to the criminal law statute. As you noted, the statute requires an allegation that the firearm was used, carried or possessed in relation to a crime of violence.

    This indictment apparently alleged none of those things, stating only that it was discharged in relation to a crime of violence. We not only have the amicus brief’s statement regarding the indictment wording, we also have the argument by the prosecutor during closing argument (Vol. 15, p. 10):


    So, first of all, as you’ll notice when you go back to deliberate, the Counts 1, 2, and 3 are the assault counts. They are then followed by the discharge of a firearm, in relation to a crime of violence, and then they are followed with a tampering with official proceeding counts; that’s Counts 6 through 10. And Counts 11 and 12 are the civil rights violation counts.”

    EDIT: Here’s the amicus brief on the wording of Counts 4 and 5 of the indictment (pp. 8-9):

    “On or about the February 17, 2005 … defendant … knowingly discharged a firearm, to wit: a Beretta 40 caliber firearm, during and in relation to a crime of violence for which he may be prosecuted in a court of the United States, to wit: Assault with Intent to Commit
    Murder … Assault with a Dangerous Weapon … and, Assault with Serious Bodily Injury … in violation of Title 18, United States Code, Section 924(c)(1)(A). [Document No. 66 (emphasis added).]”

    DRJ (9578af)

  91. Honestly, WLS, that seems like a serious error to me. Ramos and Compean had a legal right to use, carry and possess a weapon. To eliminate that as an issue and focus only on the discharge of their weapons was beneficial to the prosecution.

    DRJ (9578af)

  92. That makes no sense, j curtis. None at all. The people most interested in its meaning found nothing in it to dispute.

    DRJ, but is it a serious error? Or is “discharge” merely a specific subset of “use” ?

    SPQR (26be8b)

  93. mens rea? guilty mind? Even WLS doesn’t believe that they were guilty minded.

    Isn’t that so, WLS?

    j curtis (8bcca6)

  94. DRJ #90,

    I also thought the prosecutor’s “they are only trying to feed their families” was at the very least arguing facts not in evidence and, given that he was “only trying to feed his family” by smuggling 745 lbs. of marijuana into the U.S., a fraud on the jury. But I saw no objection by the defense. It is to be hoped that the Fifth Circuit will look at the totality of the record to determine whether Compean and Ramos received a fair trial. There is indisputably a substantial question whether the errors “seriously affect the … public reputation of judicial proceedings.”

    nk (09a321)

  95. SPQR,

    “Discharge” as a subset of “use” was addressed in cases cited in the amicus brief. If the interpretation of those cases in the brief is correct, this issue has already decided by both the Supreme Court and the Fifth Circuit. The decisions apparently hold that the indictment (or, at a minimum, the charge) must track the statutory language. The amicus brief argued (convincingly, to me) why this particular language change made a difference.

    Note that we don’t know what the charge said on this issue because it wasn’t reproduced in the transcript that was posted online. However, based on the prosecutor’s closing argument it must have tracked the indictment language.

    Finally, this issue was not raised at trial. In one sense, I recognize it’s easy to miss something – even big issues – that only seem clear in hindsight. In addition, the main Fifth Circuit case relied on in the amicus brief wasn’t decided until this year, long after the Ramos-Compean trial occurred. Still, because this wasn’t raised at trial, the defense must satisfy a “plain error” requirement to raise this issue on appeal. I think that’s going to be a big sticking point.

    DRJ (9578af)

  96. Comment by nk — 11/14/2007 @ 9:06 pm

    I think they’re guilty.

    Christoph (92b8f7)

  97. They are, for a fact, guilty of shooting someone who smuggled 745 lbs. of marijuana into the United States, and then fought them and tried to escape back across the border, in the buttocks, severing his machismo. Just like I am guilty of sweeping up a broken bottle off the sidewalk.

    nk (09a321)

  98. DRJ — I’ll look more closely at this later. But my initial thought is, as you point out, “discharge” is a form of “use”. All the prosecution really did was narrow the case it could prove — it couldn’t prove any other form of “use” other than “discharge.”

    Re whether they are authorized by law to possess, carry, or use a firearm is irrelevant because those phrases are married to the criminal act of doing so in furtherance of/during and in relation to a crime of violence.

    And, if the issue wasn’t raised in the district court, then they have the same problem that McGilberry had — the plain error rule applies and they will have to make a showing that the error was tantamount to a miscarriage of justice.

    I don’t suspect that Fifth Circuit law — probably the most conservative circuit — is too friendly to them on that question.

    wls (a6fede)

  99. That should be “Fifth Circuit law ISN’T too friendly to them.”

    wls (a6fede)

  100. j curtis — its a general intent crime, not a specific intent crime. They didn’t fire their handguns on accident.

    wls (a6fede)

  101. NK,

    I’ve tried to be objective in this case, primarily because my assigned task was to summarize and not pontificate, but also because this was a jury trial. As you know, juries see the evidence and witnesses first-hand. Reading a transcript isn’t the same as seeing evidence and hearing testimony as a juror. Further, I believe there was evidence to support the verdict.

    However, I have very little doubt that if this case had been tried in any other West Texas town, defendants would not have been convicted of the more serious offenses and might not have been convicted at all. Why? Because OAD, the main witness, was a drug smuggler. The prosecutor hinted in her closing argument why an El Paso jury would convict these defendants. To quote Debra Kanof (Vol. 15, p. 102): “Ladies and gentlemen, we live in El Paso, Texas. There is a substantial likelihood that somebody in your neighborhood is a dope dealer. That is even more likely in San Isidro, Mexico.”

    How many people live in a large American city (El Paso has a population of over 700,000) and have a “substantial likelihood” that there is a dope dealer in every neighborhood? That may be true in specific neighborhoods and perhaps even widespread in some high-crime towns, but this suggests it’s a city-wide phenomenon in El Paso. If you live in a community where there are that many dope dealers, it’s probably true most people would find them as credible as law enforcement officers. That may be tolerant, fair, and unbiased but it defies logic.

    As for this appeal, I hope the Fifth Circuit reverses this case based on the totality of the circumstances as it did in the Sipe case. OAD’s alleged second offense raises red flags but I’m equally concerned by the trial court’s restrictions in questioning OAD, the Rene Sanchez/Nolan Blanchette sealed testimony, and the legal issue presented by Counts 4/5. It also bothers me (even though I don’t think it could be an appeal issue) that the prosecution represented that drug smugglers don’t carry guns (Vol. 3, p. 56) while the El Paso Border Patrol warns residents to be careful in areas like Fabens because drug smugglers often carry guns in remote areas.

    DRJ (9578af)

  102. Speaking of violence on the border:

    “Alien and drug smugglers along the U.S.-Mexico border have spawned a rise in violence against federal, state and local law enforcement authorities, who say they are outmanned and outgunned.

    “They’ve got weapons, high-tech radios, computers, cell phones, Global Positioning Systems, spotters and can react faster than we are able to,” said Shawn P. Moran, a 10-year U.S. Border Patrol veteran who serves as vice president of the National Border Patrol Council Local 1613 in San Diego.

    “And they have no hesitancy to attack the agents on the line, with anything from assault rifles and improvised Molotov cocktails to rocks, concrete slabs and bottles,” he said. “There are so many agent ‘rockings’ that few are even reported anymore. If we wrote them all up, that’s all we would be doing.”

    DRJ (9578af)

  103. The parties’ briefs were placed under seal by Court Orders dated 6/6/2007 (as to appellants Ramos and Compean) and 8/17/2007 (as to appellee USA). In addition, there was another amicus brief filed in the Ramos-Compean case.

    (Thanks to j curtis for obtaining this information via PACER.)

    DRJ (9578af)

  104. WLS its a general intent crime, not a specific intent crime. They didn’t fire their handguns on accident.

    I think you have already admitted that Ramos fired his gun on accident. This was the one thing we came to an agreement on in these threads.

    There have been many cases when cops have squeezed the trigger with intent and the results have been found to be accidents.

    That aside, I don’t like the approach the defense is taking here. If an officer did shoot at someone because they “wanted to kill some Mexicans” or “wanted to kill some gringos” for that matter, I’d want 924c to apply to the discharge and I would be mocking the defense’s attempts to say that discharge isn’t a subset of use.

    j curtis (8bcca6)

  105. j curtis — I never admitted firing a gun on accident. An “accident” would be if he was cleaning his gun and it discharged without him intending for it to do so.

    When he aimed and pulled the trigger, it may have been based on mistaken facts, but it wasn’t accidental. He meant to hit the person he was aiming at. Whether he should have been aiming at that person or not isn’t relative to the question of specific or general intent.

    wls (a6fede)

  106. This is an interesting discussion made moot by this:

    Jay Curtis (8f6541)

  107. Serious? Your name is Jay Curtis?

    j curtis (8bcca6)

  108. Let’s see how Sutton tries to weasel out of this.

    j curtis (8bcca6)

  109. Thanks, Jay Curtis #106. I would not say moot, though. Definitely not moot. Vindication is more appropriate.

    nk (09a321)

  110. 106 does change the commentary to the effect that Davila did drive the second load in Oct. 2005.

    Now we need to know what question specifically it was that Compean and Ramos’ attorneys wanted to ask him that the Judge said they couldn’t.

    There are three things it doesn’t change, however.

    1) It doesn’t mean that Davila lied about the Feb. 2005 being his first load.

    2) It doesn’t change the fact that Rule 608(b) precludes a WITNESS from being asked about uncharged criminal conduct for purposes of impeaching that witness.

    3) It doesn’t change the fact that an attorney is not allowed to ask any witness on the stand AND IN FRONT OF A JURY a question where the attorney knows the witness is going to invoke his Fifth Amendment right. The invokation is evidence of nothing, and asking that question and getting that answer in front of the jury only leads to jury speculation about why the witness won’t answer the question.

    So, Compean and Ramos advocates now have a point to crow about in their pursuit of Davila, but it doesn’t change the legal issues surrounding Davila’s testimony.

    WLS (bafbcb)

  111. WLS,

    The appeals points also complain that defense counsel weren’t allowed to ask OAD questions about the load he brought in on the day he was shot. The questions were intended to undermine OAD’s claim that he had never done this before and was just an innocent guy trying to care for his family. Those facts also bear on whether OAD might have been armed.

    Edit: On further thought, it might also bear on the nature and scope of OAD’s immunity. OAD testified he understood he only had immunity for smuggling, etc., that occurred on the day of the shooting. However, the written immunity agreement was much broader. The trial court precluded further questions based on OAD’s testimony but I feel sure this is an appeal issue.

    DRJ (9578af)

  112. Yes, that is my name.

    I guess what I would like to know is how does this affect the “truthful testimony” argument that Johnny Sutton is constantly harping about. Did the prosecutor have knowledge that Aldrete-Davila was in violation of his immunity when he was allowed to testify against the agents? Did the prosecutor have reason to believe that he was lying under oath? What did the prosecutor know that was not made availabe to the jury?

    I guess as a layman, this whole case stinks because, as far as I can see, every person who testified against them had reason to lie.

    Jay Curtis (8f6541)

  113. Jay Curtis,

    Thanks for the information about Aldrete-Davila’s arrest. I’ve started a new post on this here.

    I don’t think the fact of OAD’s arrest will materially change the appeal issues. I’m sure the attorneys for Ramos and Compean will mention it during oral argument in connection with the sealed testimony concerning OAD’s second arrest. However, the sealed testimony stands on its own and I suspect it already contains the details of OAD’s subsequent drug offenses. In other words, I hope most of the information we learned today was already in the sealed testimony.

    However, judges are people, too, and learning of OAD’s arrest may get this issue a smidgeon more interest at oral argument.

    DRJ (9578af)

  114. WLS,

    So after all these months of defending the precluding of testimony regarding Davila’s involvement with the October load on the premise that it never happened, you suddenly have a new defense for Sutton a few minutes after learning for a fact that it did happen?

    j curtis (8bcca6)

  115. Oh, come on, WLS,

    Maybe prosecutorial misconduct is too much to say but prosecutorial cynicism isn’t. Sutton made a deal with the devil to convict two of his adversaries.

    nk (09a321)

  116. nk — I’m going to move my comments on this subject to DRJ’s new post. But, for your comment, why are Compean and Ramos “his adversaries”?

    I think Sutton would have been perfectly happy to have never had to confront the question of whether Compean and Ramos should have been prosecuted. Why would you think a US Attorney would take any pleasure at all in prosecuting two well-liked BP agents? Do you think it made his work easier with BP and other law enforcement agencies?

    No. He prosecuted them because the evidence was there that they committed a crime.

    And, as for my “defense” of Sutton vis-a-vis Davila, I have asked j curtis to post evidence other than Cipriano-Ortiz’s statements that Davila drove the second load in Oct.

    Until this indictment was announced, there was no evidence on the internet that I was able to find that supported C-O claim. But its clear now that the US Attorney’s Office and DEA were investigating the case.

    So, the facts have now changed. But the legal issues confronting the court and the prosecution in February 2006 concerning Davila’s testimony are the same. I have said all along that the law clearly precludes a witness in a federal trial from being asked a question about specific instances of criminal conduct for which the witness has never been charged. Its tantamount to the “when did you stop beating your wife” kind of question.

    That’s APPARENTLY what it was the defense wanted to question Davila about. I say apparently because the efforts by the defense to get into that line of questioning, and the Court’s rulings are under seal.

    wls (a6fede)

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