Patterico's Pontifications

2/17/2007

DRJ Pores Through the Border Patrol Trial Transcripts — Testimony of Osvaldo Aldrete-Davila (From Vols. VII and VIII)

Filed under: Crime,General,Immigration — DRJ @ 11:39 am



Thank you, Patterico, for letting me post here.

Volume VII is the first time we hear directly from Osvaldo Aldrete-Davila and his testimony concludes in Volume VIII. We learn more about the nature of the immunity agreement between the government and Aldrete-Davila and there may even be a mini-Perry Mason moment (or, for the younger crowd, a Law and Order moment) regarding whether Aldrete-Davila is right-handed. And, at the conclusion of Volume VII, we get a glimpse of what defense counsel called the “October load.” Finally, I think there is an interesting appeal issue presented in the extended bench conference appearing in the first section of Volume VIII.

By the way, the jury wasn’t told this but Aldrete-Davila was apparently in government custody during the trial.

Here is the Government’s direct examination of Osvaldo Aldrete-Davila and the cross-examination by defense counsel:

(more …)

From Vol VII.:

Witness #3 – Osvaldo Aldrete-Davila:

56-59 – [Bench conference regarding interpreters and the possibility that the interpreter provided by the government is not certified.]

59-60 – [Chambers conference with counsel and Walter Boyaki, attorney for Aldrete-Davila. No transcript provided.]

60-61 – [Jury not present. The Court notified Aldrete-Davila that he could talk with his attorney at any time because he has certain Constitutional rights and she wanted to make sure he understood those rights. The parties were admonished not to mention that Aldrete-Davila’s attorney was in the courtroom.]

62-63 – [Bench conference regarding an objection to the interpreter’s method of translating Aldrete-Davila’s responses.]

64-66 – [Interpreter advised the Court she is not a certified interpreter. Court recessed until they could obtain a certified interpreter.]

Government direct:

67-70 – Osvaldo Aldrete-Davila was at the traffic light in Fabens on February 17, 2005, at approximately 1:15 PM. As depicted in several photos, he was driving a van [shown in GOV EXS 9 and 15] at the stoplight in Fabens [shown in GOV EXS 41, 42, and 43]. All exhibits were offered and admitted.

71-75 – Aldrete-Davila turned left at the stoplight onto Alameda when he saw the BP patrol cars. He went another block and turned left on Main to return to Fabens Road and to Mexico. Aldrete-Davila verified that his route through Fabens was shown on a map [GOV EX 40] and the map was offered and admitted into evidence.

75-77 – There were 2 BP agents following Aldrete-Davila as he drove through Fabens. One of the agents turned on his overhead emergency lights. Aldrete-Davila’s intent was to get to the river and return to Mexico.

77-79 – Aldrete-Davila was “racing” back to Mexico and the BP agents were following him. There were no traffic lights on Fabens Road but Aldrete-Davila identified photos of signs for speed limits and curves that were on the road February 17, 2005. [GOV EX 50.] The BP vehicles were going the same speed as Aldrete-Davila. They were together about 10 meters behind Aldrete-Davila.

80 – Aldrete-Davila identified pictures of more road signs on Fabens Road, including a school bus loading and unloading sign. [GOV EX 45, 46, and 47.] There was not school bus on the road when Aldrete-Davila was there on February 17, 2005.

80-81 – [Defense counsel objected to the prosecution’s question as leading, and the Court sustained the objection. Defense counsel stipulated to the admission of GOV EXS 45-51, traffic signs on Fabens Road, and they were admitted.]

82-83 – The BP vehicle turned off its emergency lights. Aldrete-Davila estimated he was traveling at 60-65 mph. The speedometer in his van did not work but he estimated the speed. They weren’t obeying the traffic signs and posted speed limits, which at one place on Fabens Road was as low as 10 mph.

83-86 – Aldrete-Davila identified a map and an aerial map of the Fabens area [GOV EXHS 1 and 84] and they were offered and admitted. Using the maps, he described the path he drove through Fabens on Fabens Road and then toward the river after it turned into Jess Harris Road. Aldrete-Davila’s plan was to get to the ditch and walk across the river into Mexico.

86-87,94 – Aldrete-Davila identified photos of his van in the ditch on Jess Harris Road. [GOV EXHS 9 and 15.] These photos were taken on February 17, 2005. He did not intend to drive into the ditch but he was unable to stop due to the dirt road.

87-94 – Aldrete-Davila identified a photo of tire tracks after the van was removed. [GOV EXH 51A.] He also identified 3 photos that depict the area with the road names provided. [GOV EXHS 26, 28, and 29.] These photos were taken after February 17, 2005. Exhibits 26, 28, 29, and 51A were admitted.

94-96 – In a series of leading questions, Aldrete-Davila identified various landmarks shown on GOV EXH 28, including the drainage ditch, the levee road, and the Rio Grande. Using GOV EXH 9, he also identified a BP vehicle and the area where he first saw the BP vehicle.

97-99 – Aldrete-Davila got out of the van and crossed the drainage ditch. [Repeated objections to leading questions. All sustained.] As he ran up the south side of the drainage ditch, he turned and saw 2-3 people. They were wearing uniforms; 1 had glasses; and all 3 had their “arms drawn.” After repeated questioning, he changed it to 2 people had their weapons drawn.

100 – [Court interpreter clarified that the witness did not say that “all 3 people had their arms drawn.” The correct translation should have been “all had their arms drawn.” In addition, defense counsel objected that the translation was incorrect because the witness stated all had their “weapons” drawn, not “arms.” The Court overruled the objection, holding that arms means weapons.]

100-103 – The agents behind him were holding pistols that were aimed at Aldrete-Davila. When he saw this, Aldrete-Davila was running upwards [up the ditch] and raised his hands. There was another BP car on the levee road and an agent slightly below the road in front of Aldrete-Davila. Aldrete-Davila identified GOV EX 51A, a photo of the area taken after February 17, 2005, including the place marked with a “1” where Aldrete-Davila first saw that agent on the levee. Aldrete-Davila then ran to the left and the agent also ran and ended up in the place marked “2.” GOV EXH 51A was offered and admitted.

103-105 – When the agent on the levee moved to location “2,” he was aiming a rifle at Aldrete-Davila. Aldrete-Davila identified GOV EXH 13 as a photo of the rifle. He did not know if it was a rifle or a shotgun. [GOV EXH 13 offered but Compean’s counsel objected based on the lack of identification of the weapon. Objection sustained.]

106-107 – The agent on the levee continued to point the rifle at Aldrete-Davila, who had his hands raised because he thought he would be apprehended. Aldrete-Davila said twice “Take it easy, man, don’t hit me” and the agent responded twice or more, “Stop, you shit Mexican.” Aldrete-Davila stopped with both hands up. His hands were empty and he intended to give up and be arrested.

107 – Aldrete-Davila is right-handed.

107-111 – As the agent approached, he turned the gun over and tried to hit Aldrete-Davila with the butt of the rifle. Aldrete-Davila stopped him by getting in “this position.” [Aldrete-Davila demonstrated the position but I can’t tell exactly what it was from the transcript. In an effort to clarify what happened, the government asked a series of leading questions. The defense objected and the Court sustained the objections.] Ultimately, Aldrete-Davila testified that he blocked the agent as he swung the rifle butt. The rifle missed Aldrete-Davila and he ran off and around the agent to the right.

111-113 – Aldrete-Davila identified GOV EX 54 as a photo of the area where the altercation with the agent occurred. The agent did not attempt to use pepper spray or a baton on Aldrete-Davila.

112-113 – Aldrete-Davila fell down after he ran around the agent. “[B]ullets were picking up dust” around him as he ran on the vega toward the river, about halfway between the levee and the river.

114 – GOV EX 54 offered and admitted provided the unidentified handwriting on the bottom is redacted.

115-116 – Aldrete-Davila identifies GOV EX 56A, a photo depicting the area near the river where Aldrete-Davila was running to the river. Even though they were shooting bullets, he did not think they would shoot to kill. When they started shooting bullets, he put his hands up to cover his head. [After several objections to leading questions, all sustained:] Aldrete-Davila stated he was looking for a place to cross the river to go to Mexico.

117 – Aldrete-Davila fell down when he was shot in the buttocks.

117-120 – [Government offered and the court admitted GOV EXHS 33, 34, 35, 36, 37 38, 39A, and 39B:]

GOV EXH 33 is the “Stipulation of facts, bullet and firearm” entered into between the government and Defendant Ignacio Ramos. GOV EXHS 34-39B are exhibits to the Stipulation. The Stipulation provides that:

1. Joseph James Correa, the government’s witness, is an expert in firearms and tool marks identification.
2. A proper chain of custody was maintained.
3. The bullet fragment is a .40 caliber bullet.
4. The bullet fragment was expelled by a Beretta .40 caliber firearm described in GOV EXH 39.
5. The .40 caliber firearm described in GOV EXH 39 was functional and operational.
6. The .40 caliber firearm described in GOV EHX 39 was issued to Ignacio Ramos by the BP.
7. The bullet fragment was removed from Aldrete-Davila’s thigh on March 16, 2006. [The parties orally agreed to correct the date to March 16, 2005.]

121-122 – [After 2 leading questions, to which defense counsel objected and the Court sustained,] GOV EXHS 56A and 56B were offered and admitted without objection. The photos depict the area where Aldrete-Davila fell. C. Sanchez appears in the photos.

122-125 – After Aldrete-Davila was shot in the buttocks, he fell to the ground. He thought they had used a rubber bullet. He felt a burning sensation and saw blood. He waited for them to come arrest him. He looked back at the agents but they turned and left. [Further objections to leading questions were sustained.] Aldrete-Davila wanted to shout obscenities at them. He was surprised they left because they had time to come get him. When he saw they weren’t coming, he “got up, got ready to jump into Mexico.”

125-126 – [Bench conference during which the government attorney advised the Court that “Our agent thinks that maybe he [Aldrete-Davila] needs to go empty his bag.” The Court announced a recess.

126-132 – [The Court reconvened after an hour break for lunch, at which point there was a bench conference regarding Aldrete-Davila’s immunity agreement, the pending Motion in limine issues, and the extent of cross-examination that would be allowed. The Court reserved ruling until the questions were propounded. Ms. Kanoff for the government volunteered that Aldrete-Davila had legally been in the US as a truck driver pursuant to a laser visa, but it had expired. Counsel also discussed that the government would not keep Aldrete-Davila in the US for recall. The defense would have to pay for his lodging costs and arrange for a permiso [visa]. The Court stated that Aldrete-Davila should remain available pursuant to the permiso during trial, but the defense may have to pay his lodging costs.]

132 – Aldrete-Davila did not see what happened to the agent after he ran past him.

132 – Aldrete-Davila was not wearing a watch, jewelry or anything shiny in his hands on February 17, 2005.

133-134 – Aldrete-Davila identified GOV EXH 57 as a photo depicting the entrance to the river where he crossed on his return. He also identified GOV EXH 58, a photo looking at where he fell from the Mexican side towards the US, as well as GOV EXHS 60 and 61 – a normal view and close up of the river and the Mexican levee. [GOV EXHS 57, 58, 60, and 61 were offered and admitted without objection.]

135-138 – Aldrete-Davila felt a burning sensation after he was shot and his buttock hurt a lot when he walked. Aldrete-Davila identified GOV EXHS 62-68 as photos depicting the injuries to his thigh, buttocks, and urethra. [GOV EXHS 62-68 were offered and admitted without objection.] Aldrete-Davila also described the injuries to his urethra and his need for a catheter and external bladder.

Ramos cross-examination:

138-141 – Aldrete-Davila is testifying under a grant of immunity that prohibits the US government from charging him for offenses he may have committed on February 17, 2005. The immunity was conveyed to him orally and in writing. Aldrete-Davila identified DEF RAMOS EXH 2 as his immunity agreement he signed at the US Consulate in Juarez. The agreement does not promise not to prosecute. Aldrete-Davila’s understanding is that there will be no charges against him as long as he tells the truth about what happened. He also cannot withhold information or try to protect anyone.

141-143 – [Bench conference regarding questions about the document and use of the interpreter.]

143-144 – Aldrete-Davila believes that the immunity agreement says he will not be prosecuted for anything he did on February 17, 2005, if he tells the truth. After the interpreter read the immunity agreement to him, Aldrete-Davila agreed that the immunity agreement does not state that the government will not use his statements or testimony against him and that the government does not promise not to prosecute him.

145 – Aldrete-Davila agreed that, according to the immunity agreement, if the government had other evidence that he committed a crime on February 17, 2005, they could prosecute him. But that was not his understanding based on his discussions with C. Sanchez.

145-147 – Aldrete-Davila would not talk to C. Sanchez until he had the immunity agreement. Aldrete-Davila did not want to talk to anyone because he did not want problems. He first said that the immunity agreement was C. Sanchez’s idea. Then he clarified that the immunity agreement was Rene Sanchez’s idea but later Aldrete-Davila talked to C. Sanchez about immunity.

147-151 – [Bench conference regarding the nature and scope of Aldrete-Davila’s immunity:]

“THE COURT: That’s my concern. So I just want to make sure that we are talking about prosecutorial versus use immunity.
MS. STILLINGER: I think Agent Sanchez was very clear he orally communicated the instructions, Brandy Gardes’ instructions, that he has prosecutorial or transactional immunity for anything that happened that day.
THE COURT: I understand that maybe that’s what he communicated. That’s my understanding. Okay. That’s my understanding of what was communicated. But that is not in the letter. And I am just concerned that if some charges come up later, there’s some misunderstanding of what he was given or not given in that letter, as opposed to orally. And so I just want to — number one, I want it on the record, and I want to be clear before I rule. So does anybody want to enlighten me? Is it prosecutorial, use, some combination?
MS. KANOF: Your Honor, it’s a weird hybrid, that the written immunity letter is use immunity. What she had the agent communicate to him was an expansion of that use immunity, specifically saying, not that he wouldn’t be prosecuted for anything he did on that day, but he wouldn’t be prosecuted if he told the truth for anything he told us he did on that day. And that’s a distinction. Okay? Because —
THE COURT: Well, it’s a big distinction.
***
MS. STILLINGER: I understand Ms. Kanof to be saying that the hybrid is he’s getting transactional immunity, but only for those events that he discloses. So if it turns out he murdered somebody on that day, he doesn’t have immunity for that. But he does have transactional immunity for every event he told them about.
MS. KANOF: As long as he tells the truth. As long as he tells the truth.
MS. STILLINGER: So it was an expansion on what’s written.
THE COURT: So immunity from prosecution on those.
MS. STILLINGER: The prosecutorial, as long as it’s an event he disclosed to them honestly about.
THE COURT: Okay. So, given that, you can go into what he did on that day.
MS. KANOF: What about the amount?
THE COURT: I think they can go into what he did that day, including the amount.”

152-154 – Aldrete-Davila wanted immunity because he was worried about being prosecuted for transporting drugs in the van he was driving on February 17, 2005. He first got the van about 5 minutes before he got to the traffic light in Fabens. Aldrete-Davila crossed the river walking “a little bit to the side of Ysleta” in Colorado.

154-158 – [Bench conference regarding scope of questioning that would be allowed regarding Aldrete-Davila’s drug transport.]

158-161 – Aldrete-Davila was told to drive the van and that he would be paid $1,000 to $1,500 after he did it. He knew the van contained drugs but he didn’t know if it was marijuana, heroin, cocaine, or anything else. He could see the van from Mexico and the keys were on the ignition. He did not look in the back of the van, although he may have seen some bundles.

162-163 – [Bench conference regarding whether defense counsel could tender exhibits showing marijuana bundles in the back of the van. The Court allowed the use of the exhibits as modified.]

164-165 – Aldrete-Davila identified DEF RAMOS EXH 8 as the interior of the van he was driving on February 17, 2005, that shows the driver’s seat and several large bundles. [DEF RAMOS EXH 8 offered and admitted without objection.] Aldrete-Davila did not know it was marijuana because “a lot of different types of drugs” get crossed. He doesn’t know how different drugs are packaged but he knew it was drugs. He did not think about whether it was a large quantity of drugs but he knew it was illegal.

166-167, 175 – Aldrete-Davila is familiar with the streets in Fabens. He used to shop in Fabens when he had his border crossing card, but he never lived there. On February 17, 2005, Aldrete-Davila was supposed to go to the traffic light in Fabens, turn left, and await a signal from a car that was supposed to be waiting there. He was supposed to follow the car that signaled him. The people gave him instructions on how to get from the river to the asphalt road in Fabens, but he knew the paved roads. After he crossed the river, he drove at 35-40 mph on the dirt roads and the speed limit on the asphalt road.

167-172 – Aldrete-Davila reviewed the map [DEF RAMOS EXH 9] and the route he traveled into Fabens. He affirmed that he first saw a BP agent when he came to the traffic light in Fabens. He did not see a BP agent behind him but he did see an agent pass him, do a U-turn and get behind him.

172 – Aldrete-Davila’s use of his right hand:

“Q. Okay. Mr. Aldrete, I noticed when you’re using the pointer you’re holding your right hand up with your left. Do you have a problem with your right hand?
A. I don’t have — I don’t have a — my hand doesn’t hold steady.
Q. Okay. Because I thought I saw you earlier holding it with your left hand.
A. No. It’s my right.”

174-177 – When he saw the BP vehicle, Aldrete-Davila decided to go back to Mexico. He did not go fast in town because of the narrow, sharp corners. He did not worry about the van. He wanted to get back to Mexico so he wouldn’t be arrested and put in jail. He drove very fast toward Mexico but he didn’t see any other vehicle except the BP cars.

178-179 – Aldrete-Davila knew the emergency lights mean the BP agents want you to stop, but he did not stop because he had already decided he was going back to Mexico.

179-181 – Aldrete-Davila saw a parked BP car after the S curve as he drove back toward Mexico. He was still on the asphalt road. He located the parked car on a map labeled DEF RAMOS EXH 7. There were already 2 BP cars following Aldrete-Davila, and he did not notice if the parked BP car followed, too.

181-183 – [Court in recess for afternoon break. Bench conference regarding scheduling with Walter Boyaki, attorney for Aldrete-Davila. Testimony continued after break.]

183-186 – Aldrete-Davila identified where his van stopped at the drainage ditch shown in GOV EXH 9. He had originally picked up the van on the north side of the ditch, but he knew it was there. Aldrete-Davila was planning to cross the ditch but he did not plan to try to jump it with the van. He said he doesn’t “have suicidal tendencies either.” He wasn’t driving 60 or 70 but he was driving fast enough that he wasn’t able to stop on the dirt road. Once he got close to the ditch, he didn’t notice how close the BP cars were.

186-187 – When he got to the ditch, Aldrete-Davila saw the other BP agent on the other side of the ditch but he decided he was going to go south and get around this person. He did not get out of the van with his hands in the air. Aldrete-Davila did not tell C. Sanchez that he got out of the van with his hands up – he told him he raised his hands after he crossed the water and saw the other agent.

187-188 – The ditch is deep with water about to your knees. The edge is steep and covered with foliage. The ditch is deeper than Aldrete-Davila’s height. When you are in the ditch, you are below the level of the ground.

188-189 – As Aldrete-Davila ran beyond the ditch, he turned and saw 2-3 BP agents. They were yelling obscenities at him. They were not telling him to stop, but then:

“When I stopped, when they yelled at me to stop, I stopped, and I raised my hands, and I remained stopped. And that’s when I saw the agent — and that’s when I saw the agent in front. And then I walked up towards the agent with my hands up, and that’s when he came closer with the rifle. That was the lapse of time that I walked with my hands up.”

190-191 – In response to a question about whether he did or didn’t stop:

190 – He stopped and took one step.

191 – “A. If we’re talking about two seconds before, when I was coming out, I turned around and I saw the armed people, and they were aiming at me. But I didn’t think that those agents could shoot to kill there at that point. And so that’s why I didn’t stop. It wasn’t until I saw the third agent who was pointing directly at me that I stopped. But I never thought that they could shoot to kill. That’s why I didn’t stop.”

192 – “A. Well, I didn’t think they were going to kill me, and so that’s why I thought that I was going to run to Mexico. But then when I saw the other agent, I started to give up and let him arrest me, and then he tried to hit me. And so I got scared, and then that’s when I took off running.”

192 – Aldrete-Davila did not run straight to the river. He ran slanted to the right because he wanted to avoid the BP car.

193-196 – Aldrete-Davila left his cell phone in the van. He did not have another cell phone. The people that had him drive the van did not give him a cell phone to call with. They called him on his cell phone. He did not call them to pick him up. He walked until his friend came by and picked him up. Another car passed him by and left without helping him. Aldrete-Davila did not have to wait for his friend – his friend was there first. He thinks they were watching him. After his surgery, he learned that they watch from the hill with binoculars. “They watch everything.”

196-197 – When he was in the van and saw the BP cars, he did not use his cell phone to call for someone to wait for him by the river. They had given him the phone because he doesn’t have one. It’s a Nextel cellphone and radio. They used the radio to communicate.

198-199 – Aldrete-Davila would not have taken the job if they had told him to take a weapon, because it would be too dangerous. He knew there was a risk but he didn’t think about it.

199 – Aldrete-Davila’s description of running toward the river:

“Q. Okay. Let me get back to what you do when you’re running away there at the border. You said that you were running with your head down and your hands behind your head?
A. Yeah. I was leaning forward a little bit, and I had my hands on my head, trying to keep them from — well, you know, what protection can the hands give me? But I was trying to keep them from shooting me in the head.
Q. Okay. You weren’t trying to run as fast as you possibly could?
A. Yes.
Q. Okay. Well, wouldn’t you agree that running like that is not going to be the fastest way you can run?
A. Yeah, but at that time, you’re not going to think about what’s the most practical manner to get there at fast as possible. I wanted to protect myself, and that’s how I was running.”

199-200 – Aldrete-Davila was running as fast as he could. He did not look behind him as he ran. He was shot as he got near the river and fell in the grass. He then crossed through the bushes and the river. He fell 3 times and crossed on hands and knees.

201-204 – After he crossed the river, Aldrete-Davila walked to the highway and his friend picked him up and took him to a clinic.

204-206 – Did Aldrete-Davila tell C. Sanchez his friend’s name? [Bench conference regarding whether Aldrete-Davila’s refusal to name his friend was a violation of his immunity agreement and/or subject to the motion in limine. Defense counsel argued that the government’s grant of immunity was expanding and the jury should know that. The Court allowed the question.]

207 – Aldrete-Davila refused to tell C. Sanchez the name of the friend that picked him up. He did not understand that to be a violation of his immunity agreement and he still has immunity.

207-208 – Aldrete-Davila has known Rene Sanchez all his life. He has not seen him in half a year. The last time he saw him at Aldrete-Davila’s mother’s house in San Isidro. They talked about Aldrete-Davila’s bullet wound but not about the case.

208-209 – Aldrete-Davila talked to Rene Sanchez in February-March 2005 about his shooting. His mother told Sanchez’s mother-in-law that he was shot trying to enter the US. Aldrete-Davila told Sanchez that he was driving a van with drugs into the US and he was shot coming back to Mexico.

209-212 – Aldrete-Davila told C. Sanchez he was afraid he would be prosecuted for bringing in a load of marijuana. He learned the van was carrying marijuana because of news reports about the BP getting the van. He doesn’t remember if he knew the quantity. He never thought about whether it was a lot of marijuana. He didn’t know if it was a lot of drugs or a lot of packaging. He wanted immunity for transporting drugs.

212-214 – [Bench conference regarding whether the witness has opened the door to further questions regarding his knowledge of marijuana. The government objected and the Court sustained the objection.]

214-215 – R. Sanchez suggested that Aldrete-Davila ask for immunity. He also talked about getting medical treatment in the US and about filing a lawsuit against the BP. Sanchez helped Aldrete-Davila find a lawyer to file the lawsuit.

215 – Aldrete-Davila is angry he was shot.

215-216 – Question asked regarding whether Aldrete-Davila’s friends were angry he was shot and threatened revenge. [Bench conference to consider the government’s objection to this question. Defense counsel argued that this issue goes to bias, because if Aldrete-Davila is angry and wants revenge on the people who shot him he might also offer perjured testimony. The government responded that anger alone is not enough and evidence of threats by others is too prejudicial. The Court sustained the government’s objection.]

216-217 – Aldrete-Davila was given a permit to enter the US on March 16 to get medical treatment at William Beaumont Hospital. The permit was good for a month. During that month, he could enter the US at any time and for any lawful reason. The government renewed his permit every month until 3-4 months ago.

218-219 –In the last 3-4 months, Aldrete-Davila has used Mexican clinics for his medical needs instead of coming to the US. The US government has arranged for Aldrete-Davila to have surgery to repair his urethra but it has been delayed because it is more serious surgery than they first thought and because of the trial. The government is providing the surgery at no cost.

219 – Aldrete-Davila does not have a job in Mexico but he paints cars. He stays in Mexico for medical treatment because sometimes he needed to come to the US for medical treatment at the same time he had a job to paint a car and he would lose the work.

219-222 – Aldrete-Davila had a commercial driver’s license but it expired in 2004. Aldrete-Davila identified his commercial driver’s license marked DEF RAMOS EXH 10. It shows it was issued in December 2003 and has multiple expiration dates of 2005, 2007, 2009, 2011, and 2013. Aldrete-Davila stated this license was for hazardous materials so he could drive trucks with gas. It expired in 2005 because he did not renew it. His commercial driver’s license and his permission to enter PEMEX expired in 2004, and he told C. Sanchez he needed money to renew them.

222 – Aldrete-Davila is going to have the surgery to repair his urethra if it can be done.

222-230 – [Bench conference regarding time and scheduling, as well as Aldrete-Davila’s intention to take the Fifth Amendment on matters not covered by his immunity agreement. The nature of Aldrete-Davila’s immunity – use vs. testimonial – was discussed, as was the status of his legal issues from October:]

MS. STILLINGER: Mary Stillinger. The only thing that I would like to ask him, also, for the purpose of making the bill, is whether he knows that they know about that October load. Because if he knows about it, then he would apparently — he’s assuming he’s getting a walk on it.
MS. KANOF: I can respond to that. Wait a minute. The Government has not discussed it with him, and has no knowledge that he has knowledge. In addition to that, I believe Mr. Boyaki is standing here, so he can also tell you, also, he has not discussed it with him. As far as I know, he doesn’t know that we know.
MR. BOYAKI: That’s correct.
MS. KANOF: Right. Your Honor, he —
MS. STILLINGER: I’m not sure he can take the Fifth on whether he knows he’s been under investigation, Your Honor.
THE COURT: So what’s the specific question you want to ask him that you’re telling me that you’re not sure?
MS. STILLINGER: Making a bill, is he aware he’s been implicated? He’s discovered at the house of Cipriano Ortiz in September 2005.
MS. KANOF: He can take the Fifth on that question.
THE COURT: Well, my concern is that that’s an investigation, and to my knowledge, ongoing investigation. That has no relevance to him, other than his ability to be impeached for the purposes of bias, if he thought somehow his immunity agreement extends to that. So I don’t have a problem, if you want to know what his thoughts are. I don’t have a problem with the questions such as: Do you think the immunity agreement extended – went on forever, or for any subsequent illegal activities, a general question. But I have a huge problem with going into specifics of any investigation without some information that he believes would extend beyond that day. Because he has said at least — I was sitting here counting — at least five times, I had immunity from that day, for that day — for that day. And the record is replete with that day, nothing about subsequent. So unless he says, you know, he thought he was just immune from any prosecution forever, then I don’t think whether they were investigating him has any relevance. And certainly,
it’s an ongoing investigation, to my knowledge.
MS. KANOF: I don’t believe the Government has said this for the record. But we have not offered him immunity or any benefit for anything he did on any day other than that day.
***
THE COURT: Well, let me say I would prefer to get the record clear that you ask him that outside of the presence of the jury. And he may say, no, he thought he was immune from everything forever. If he says that, then we may have a different issue. But let’s clear that one. If he says that — if he says that he believes that he’s only immune for that day, he’s entitled to invoke the Fifth. Once he says that, then we’re talking about a subsequent investigation.”

227-228 – [The jury was dismissed for the evening.]

231-233 – [Voir Dire examination of Aldrete-Davila:]

231-232 – Aldrete-Davila did not believe he has immunity or that the government would give him favorable treatment for any criminal act since February 17, 2005. Just for that day.

232 – For the record, Aldrete-Davila would invoke the Fifth Amendment if questioned about other specific conduct. Defense counsel are not allowed to ask about any other dates.

233 – [Court in recess for the evening.]

235-237 – [Index to Admitted Exhibits.]

From Vol VIII.:

Witness #3 – Osvaldo Aldrete-Davila:

1-16 – [Extended bench conference regarding Aldrete-Davila’s right to claim a Fifth Amendment privilege as to events that occurred outside of February 17, 2005. Defense counsel requested that the Court grant Aldrete-Davila testimonial immunity because the terms of the immunity agreement are not expressly limited to February 17, 2005, [DEF RAMOS EXH 2 – the immunity agreement – offered again for admission] and because the effect of this unusual immunity agreement results in a skewed view of the facts presented to the jury and hampers the defense because they can’t even discover if there is admissible Brady or Giglio material. In support of this request, defense counsel cited US vs Bustamante, 45 F.3rd 933. Defense counsel want the latitude to inquire further into Aldrete-Davila’s prior activities, including how involved he was in drug trafficking, because this bears on his credibility and whether he lied about having a gun. The Court was concerned about the prejudicial aspects of this information, but defense counsel pointed out that Aldrete-Davila is not on trial and the concern should be the rights of the accused. The government responded that, absent a Court ruling that the prosecutors had acted in bad faith, the immunity agreement must control. The government has no knowledge or information that Aldrete-Davila was involved in drug trafficking prior to February 17, 2005. After a recess to review the cited case law, the Court denied the defense request that Aldrete-Davila be granted testimonial immunity. The Court presumably also denied the request to admit DEF RAMOS EXH 2.]

16 – [Jury returns.]

Compean cross-examination:

18-19 – Aldrete-Davila was given a cell phone right before he crossed into the US illegally. There was only one other person with Aldrete-Davila before he went to the van. He was told to get in the van and drive north to Fabens. Once he got to Alameda road/street, he saw the BP vehicles and made a U-turn to return to Mexico.

19-20 – Aldrete-Davila testified yesterday that he was in unfamiliar territory outside of Fabens, but he used a different route to return to Mexico than the route he drove into Fabens on. He testified he took the alternate route because he could see the drainage ditch and he drove straight to it.

20-21 – Aldrete-Davila agreed that GOV EXHS 47, 48, 49, and 50 show that you can’t see the drainage ditch from the road Aldrete-Davila was using on February 17, 2005.

21-23 – Aldrete-Davila stated it took him between 5-10 minutes to travel from the river to Alameda in Fabens. He got in the van, turned on the ignition, and drove. He did not smell marijuana or an odor.

23-24 – [Bench conference regarding the scope of questions permitted under the motion in limine regarding marijuana.]

24-25 – Review of Aldrete-Davila’s previous testimony that he did not know what drugs were in the packages in the van, but he learned it was marijuana from the news.

25-27 – Aldrete-Davila denied that said he knew it was marijuana when he got in the van. He saw it on television but doesn’t remember on what news report. He did recall hearing a description of the BP agent on the news report, and he did not give C. Sanchez a description of the agent when he talked to him on March 11.

27-29 – Aldrete-Davila does not recall talking to C. Sanchez about a description of a BP agent.

29-30 – Aldrete-Davila met with C. Sanchez on March 16, 2005, in Juarez. He did not bring an attorney, nor did he tell C. Sanchez he was bringing an attorney. He commented to C. Sanchez that he might take an attorney. R. Sanchez had suggested he get an attorney.

30-31 – During his meeting with C. Sanchez in Juarez, Aldrete-Davila looked at a photo line-up that C. Sanchez had brought. He could not identify any BP agent as someone he had seen in the ditch on February 17, 2005.

31-32 – Aldrete-Davila stated that the BP vehicles that followed him from Fabens to the drainage ditch were approximately 10-15 meters behind his van. He could see the emergency lights for about a minute and then they turned off. He could also see the headlights. He did not panic “100%” when he saw the BP units. He just wanted to get to Mexico.

33-36 – How panicked was he? He was in fear but not enough to make mistakes. He was afraid but not to the degree that he didn’t know what he was doing. He did violate the laws by speeding and by refusing to stop for the BP units. He did not want to get arrested but he became panicked and terrorized when he was shot. He was afraid from the moment he saw the BP units until he got to the clinic.

36-38 – [General discussion regarding Aldrete-Davila’s actions in driving to the ditch and running toward the river.] Aldrete-Davila stated he drove to the ditch, stopped, got out, and walked or ran down the ditch. The ditch was deeper than he is tall. It is approximately 2-1/2 meters. He doesn’t know what that is in feet. [12 feet?] He is approximately 1-1/2 meters tall [6 feet?]. The water in the ditch came up to his knees.

39-40 – Aldrete-Davila climbed out of the ditch but he did not use his hands to climb out. Then he confronted the BP agent with the rifle. He ran as fast as he could to the left because he was afraid he would be arrested for a crime.

40-41 – The BP agent did not tell Aldrete-Davila to Parate [Stop], he said Parate, Mexicano de mierda.

41-43 – [Court in recess.]

43-44 – On March 16, Aldrete-Davila does not recall discussing with C. Sanchez whether the BP agents had their weapons drawn.

45 – There was no physical contact between Aldrete-Davila and the BP agent with the rifle.

45-46 – [Discussion regarding translation issues with interpreter.]

46-47 – Aldrete-Davila did not look back as he ran toward the river. He never turned when he was running. He looked back when he was on the ground.

48-49 – Aldrete-Davila fell twice after he was shot. He was taken, unconscious, to a clinic in Mexico for medical treatment. He sold his truck to get medical treatment. He borrowed money, and his sister sold two vehicles and used her savings to pay for treatment.
49-52 – Aldrete-Davila needed money because his Pemex license [DEF COMPEAN EXH 3] had expired in 2004. It was issued in March 2004 and expired in September 2004. [DEF COMPEAN EXH 3 admitted without objection.]

54-55 – [Compean offered DEF COMPEAN EXH 4 – a government translation of the license. The government objected on the basis that it was not a certified translation. The Court sustained the objection.]

55-57 – Aldrete-Davila had a local border rossing card since he was a child, but he lost it. He also has a voter egistration card and he was able to use that with the permits that Chris [Sanchez] gave him to enter the US. He does not remember when his last permit expired – the one before the permit to enter for this trial.

57-58 – Aldrete-Davila doesn’t remember how many times R. Sanchez’s mother brought him to the US hospital for treatment. He was scheduled for surgery but it was cancelled. [Defense counsel suggested it was scheduled for October 2005, about 6 months prior to the trial.]

58-59 – The last time Aldrete-Davila saw R. Sanchez was around 6 months ago. R. Sanchez and Aldrete-Davila’s brother Sergio have been friends since childhood.

59-61 – On February 17, 2005, Aldrete-Davila was trying to get to Mexico. No BP agent touched him at the Sierra ditch. At the Sierra ditch, he ran around the BP agent to the right. It would have been faster to run straight to the Rio Grande, but he elected to run at an angle. When he reached the edge of the Rio Grande, he turned and saw 2 BP agents on the vega.

61 – Aldrete-Davila will not serve one day in prison for the offenses he committed February 17, 2005, and he is suing the US government for $5M. Mr. Boyaki is his attorney. Aldrete-Davila hired Boyaki in March 2005. Aldrete-Davila just found out about the lawsuit until he saw it in the paper and saw his attorney yesterday.

Ramos re-cross:

62-63 – Aldrete-Davila hired Boyaki to recover his medical expenses. He didn’t know the US would be sued for millions and millions. R. Sanchez and Sanchez’s mother-in-law told him he could sue.

63-65 – The US paid for Aldrete-Davila’s health care, except for the past 3 months when he stayed in Mexico. He could have come to the US for free medical care but he needed to stay in Mexico for his work and to care for his children. He preferred to get his catheter changed in Mexico because it was faster, less painful, and had fewer side effects when he had it done in Mexico so he spent less time afterwards in bed. His decision to have medical check-ups and care in Mexico had nothing to do with the fact his permit wasn’t renewed.

64-65 – Surgery is inferior in Mexico so Aldrete-Davila wanted to have his surgery done in the US.

65-68 – Aldrete-Davila knew the clinic where he had been treated in Mexico because “we went [to the clinic] and made those payments.” At first, he didn’t know where he had been treated because he was unconscious. Now he knows where the clinic is but he doesn’t know its name. Only Aldrete-Davila’s sister knows the name of the clinic because she arranged for payment and did all the paperwork. Aldrete-Davila did not see the paperwork. C. Sanchez did not ask Aldrete-Davila the name of the clinic. He talked to Aldrete-Davila’s sister about that.

69-70 – Aldrete-Davila identified DEF RAMOS EXH 10 as a note from his Mexican doctor referring him to a urologist. The urologist was too expensive so Aldrete-Davila went to another urologist. [The Court admonished Aldrete-Davila to listen to the questions. His answers were non-responsive.] DEF RAMOS EXH 10 was given by Aldrete-Davila and his sister to C. Sanchez. The document does not have the name of a doctor or clinic on it, but Aldrete-Davila stated he was not trying to conceal this information from C. Sanchez. [DEF RAMOS EXH 10 offered and admitted without objection.]

71-72 – Aldrete-Davila calls C. Sanchez “Chris” because he has met with him many times. C. Sanchez met Aldrete-Davila at the bridge on his last crossing to attend this trial, and Sanchez is holding Aldrete-Davila’s permit.

72 – [Defense counsel questioned whether other times Aldrete-Davila had carried his own permit but the government objected to this as repetitive and the Court sustained the objection.]

72-73 – [Defense counsel questioned whether Aldrete-Davila had been in C. Sanchez’s custody since he crossed the border for this trial. The government objected based on the Motion in limine. There followed a bench conference discussion in which the government claimed defense counsel was trying to inject that Aldrete-Davila is in government custody even though that’s part of the Motion in limine. Government counsel stated that Aldrete-Davila is in custody but that C. Sanchez is not responsible for that custody. The Court ruled that Aldrete-Davila could be questioned about his contacts with C. Sanchez but not regarding whether he’s in custody.]

73-74 – Aldrete-Davila has seen C. Sanchez during the trial but he is with another agent most of the time. Aldrete-Davila spent a lot more time with Sanchez before the trial. Sanchez helped him at the hospital and translated for him.

74-75 – Aldrete-Davila did not smell anything in the van at all. He did not know what was in the van but, whatever it was, he was willing to bring it into the US.

75-76 – [Bench conference following defense counsel’s question whether Aldrete-Davila was worried about a Mexican prosecution. The government objected based on relevance and defense counsel noted that Aldrete-Davila had told C. Sanchez he was worried about being prosecuted in Mexico and the US for his actions on February 17, 2005. The Court ruled defense counsel could ask Aldrete-Davila what he was aware of because it goes to bias.]

76-77 – Aldrete-Davila was worried about being prosecuted in Mexico. C. Sanchez did not help him get immunity in Mexico.

“Q. So, as you sit here today, your belief is you could still be prosecuted in Mexico?
A. It could be.
Q. Okay. And you also know that you could be prosecuted by the State of Texas, correct?
A. Well, yes.
Q. Okay. And do you know whether Agent Sanchez or anybody else has arranged for you to get immunity from the State of Texas?
A. No, I don’t know.
Q. Okay. So, as you sat here today and admitted a serious offense, for all you know, you could be arrested for that offense by the El Paso County Sheriff when you leave here?
A. Yes.”

77 – C. Sanchez told Aldrete-Davila that he could return to Mexico without any charges being filed against him when the trial was over. C. Sanchez didn’t ask Aldrete-Davila to answer questions about anything that happened before or after February 17, 2005.

78-79 – Aldrete-Davila saw R. Sanchez once when Sanchez was stationed in McAllen and not at all when he was stationed in Arizona. He did not talk to Sanchez on the phone until after he was shot. Sanchez did not talk to Aldrete-Davila about his work and they did not share information about work.

79-80 – Aldrete-Davila did not charge the cell phone they gave him with the phone charger in the van.

[Pass the witness.]

81-83 – [Bench conference regarding Aldrete-Davila’s request that he be allowed to return to Mexico to work. Defense counsel were concerned he might not return. The Court was inclined to grant the request, subject to recall, and inquired if the government had problems with Aldrete-Davila being where he was asked to be. Government counsel yielded to C. Sanchez, who stated the government had experienced problems with Aldrete-Davila returning when they needed him to return because he’s hard to get a hold of by phone. The Court ordered that Aldrete-Davila remain available during the trial.]

35 Responses to “DRJ Pores Through the Border Patrol Trial Transcripts — Testimony of Osvaldo Aldrete-Davila (From Vols. VII and VIII)”

  1. Wow! “Skewed” is not sufficient. “Perversion of justice” almost makes it. A confessed drug smuggler “who is only trying to feed his children” being protected from questioning on what else he has done to poison our children, in the trial of people we have hired to prevent people like him from poisoning our children for shooting him as they are trying to prevent him from poisoning our children.

    nk (57e995)

  2. Patterico,

    Mary Stillinger seems to think that Aldrete-Davila would have been at risk for prosecution had he admitted that he had a gun on that day without full testimonial immunity. What do you think?

    [Given that he already said he didn’t have a gun, that’s right. But he would have been free to tell prosecutors about the gun *from the beginning*, as I understand the grant of immunity. — P]

    Jerri Lynn Ward (9f83e6)

  3. Patterico,

    Do you think her point is that she might have been able to break him on the stand into admitting he had a gun and that he had lied to the prosecutors?

    Is there anything strange about this situation given that, most of the time, those who are given immunity are not victims but rather co-conspirators and the like? Wouldn’t it have been more fair to give him complete immunity and let the chips fall where they may given his victim status?

    Jerri Lynn Ward (9f83e6)

  4. Jerri

    First – it was stupid tactic because other agents would testify that AD was unarmed, second, she went away from a split second decision by her client to an all or nothing did he or didn’t he have a weapon?

    A guns a pretty big deal – it was obvious to the jury when she kept asking him if he had a gun that she ws really answering the question for him

    He didn’t

    the Transcripts here are not telling you the body language the tone of voice

    EricPWJohnson (405d78)

  5. Eric,

    How could the other agents know he was unarmed?

    That said, I agree with you. She didn’t show fortitude. It really didn’t matter that he was unarmed. It mattered that Ramos thought he was armed and heard shots which made him think Compean was in trouble.

    Do you think it was a bad shoot?

    Jerri Lynn Ward (9f83e6)

  6. What the heck was going on here?

    11 BY MS. STILLINGER:
    12 Q. Mr. Aldrete-Davila, let me show you what I’ve marked as
    13 Defendant Ramos Exhibit 10, and ask you if you know what that
    14 is.
    15 MS. STILLINGER: Your Honor, I’m sorry, but I would
    16 ask you to instruct the witness just to answer the question.
    17 He’s being nonresponsive at this point.
    18 THE INTERPRETER: For the record, the answer is not on
    19 the record.
    20 THE COURT: Okay. Go ahead and answer, and then I
    21 will deal with your objection.

    What was the question?
    What was the answer?
    Why is the interpreter saying “For the record, the answer is not on the record”?
    What was the objection?

    And here’s the exchange that leads me to believe that Davila might be a US citizen:

    4 Q. Okay. And then did you get a border crossing card?
    5 A. No, I’ve had my local crossing card since I was a child.
    6 Q. Okay.
    7 A. And I lost it.
    8 Q. So you got some other type of parole document to come into
    9 the United States to get your medical care?
    10 A. No, only with the permit that Chris gave me, and with my
    11 voter’s card. That was the — that Chris gave me to come in,
    12 and with my voter registration card, that was all.
    13 Q. Okay. And that was effective until November of ’05. Is
    14 that correct?
    15 A. Well, what was the — in effect, my voter registration
    16 card?

    This caught my eye:

    22 Q. Now, let me direct your attention to Government’s Exhibit
    23 58. What does that show, sir?
    24 A. That’s the view of where I fell, looking at it from the
    25 Mexican side, towards the United States.

    It occurred to me now that this is the spot where three people witnessed the shooting incident. Davila refused to tell the government who these very important witnesses are.

    Ms. Kanoff for the government volunteered that Aldrete-Davila had legally been in the US as a truck driver pursuant to a laser visa, but it had expired

    Laser visas were first issued in 1998 and are good for 10 years so no laser cards have expired. I don’t think he had one or needed one.

    They are saying that this known drug smuggler was driving trucks legally back and forth between Mexico and the US?

    This raises so many questions that I don’t know where to start.

    For one thing, I knew Bush was trying to open the border to Mexican truckers but I didn’t know he was opening the border to Mexican truck driving drug smugglers. I didn’t think Bush’s plan had received its final authorization. This oughta kill that policy.

    If he was driving a truck here legally, it was probably for PEMEX. There was all that talk about his PEMEX card that he had to get renewed. PEMEX is the Mexican government. The drug smuggler was driving trucks into the US for the Mexican government. Knowing that, the Mexican government hasn’t put him in jail and thrown away the key.

    The Department of Homeland Security, that agency that was created a few years ago to protect Americans, has anointed this Mexican truck driver who had a hazzardous load permit and who likes to smuggle poison into the US, while at the same time destroying the lives of those who would stand in his way. Feel secure?

    J Curtis (d21251)

  7. J Curtis,

    I’ll try to respond, if I can, but I’m going to do it in parts.

    First, with regard to the photo labeled Exhibit 58, I think it was taken about a month or more after this occurred. Any people in the photo weren’t there when the incident occurred on February 17, 2005. Is that what you were talking about, or are you referring to the Border Patrol agents at the scene? I don’t think there were any accomplices across the river who were witnesses, although Aldrete-Davila did say he learned later that the people who contacted him were watching through binoculars from the hill.

    Second, regarding the voter registration card, I’m confused by that, too. It is possible Aldrete-Davila was born in the US (like Rene Sanchez) and grew up in Mexico (also like Rene Sanchez), and he is an American citizen. However, I find that hard to believe since, if he were a citizen, he would not need a border pass at all. More likely, I think Aldrete-Davila was using his Mexican voter registration card as an ID that, in conjunction with his border crossing permiso, enabled him to cross the border. I don’t think it’s enough to have a border pass – you also have to have ID. Most of us use driver’s licenses for IDs but he said his had expired, so perhaps he had to use something else.

    DRJ (605076)

  8. First, with regard to the photo labeled Exhibit 58, I think it was taken about a month or more after this occurred. Any people in the photo weren’t there when the incident occurred on February 17, 2005. Is that what you were talking about

    No. I’m talking about the two Mexicans in the car and the one in the van who helped Davila out of the river. They were watching the whole thing go down from that very spot at the time of the shooting.

    As for the citizenship. If he has dual citizenship, I’m guessing he would still need to show some kind of border pass to go back and forth. It could have been revoked after the incident or, as he said, he lost it.

    J Curtis (d21251)

  9. J Curtis,

    Regarding the “nonresponsive” issue: This testimony occurs in Volume VIII, pp 69-70. Ramos’ attorney was asking Aldrete-Davila where he had gone for medical treatment in Mexico and why he did not (or would not) tell Agent Christopher Sanchez the name of the clinic. Aldrete-Davila’s answers were rambling and/or evasive, and in legal jargon that’s called being nonresponsive. The remedy for nonresponsiveness is to ask the Judge to tell the witness to respond to (answer) your question.

    In addition, however, there was more than one person asking questions during those pages of the transcript. In addition to Ramos’ attorney, the Judge also asked a question and the questions and answers became disjointed. This was complicated by the fact that everything was being translated. I suspect it was a little like a video recording where the audio and video are out-of-sync.

    Thus, when the interpreter said “the answer is not on the record,” she was providing Aldrete-Davila’s answer to a question that had been asked by the Judge on a prior page, but there had been intervening discussion so that wasn’t clear. Apparently the people there understood because the next line is the Judge saying, “Okay.”

    Okay? (In other words, I agree, it’s confusing.)

    DRJ (605076)

  10. J Curtis #8,

    That may be, but Aldrete-Davila refused to name the people who gave him the van or the friend who picked him up; and the US Attorney refused to rescind his immunity agreement because he failed to provide that information; and the Judge refused to grant him testimonial immunity so he would have to provide that information. These will probably be issues on appeal but, for the purpose of the trial, it was a dead end.

    DRJ (605076)

  11. In any event, J Curtis, even if we knew who those people were and could bring them to the US to testify, I doubt their testimony would have helped these agents. My guess is that their story would have supported the version told by Osvaldo, their friend and/or co-conspirator.

    DRJ (605076)

  12. and there may even be a mini-Perry Mason moment (or, for the younger crowd, a Law and Order moment)

    Hey now… That hurts me man…

    Scott Jacobs (a1de9d)

  13. 6

    I could be wrong, but I think what happened is the attorney speaks Spanish and objected to the answer before the translator had a chance to translate it to English. The translator is pointing this out. The judge then tells him to translate the answer before she rules on the objection.

    James B. Shearer (c97df2)

  14. What James B. Shearer said in #13.

    The translator is saying it isn’t on the record because she/he hadn’t translated it yet. The Attorney speaks Spanish and is objecting before the translator has begun to translate the statement.

    Dwilkers (4f4ebf)

  15. Jerri

    What I think is different than what I know

    what I think is they were trying to kill him

    What I know is that they missed

    When a fellow LEO is in trouble fires a clip reloads fire another everyone comes running and shooting

    everytime, all the time, your brother officer is your number one priority, no one did but Ramos and they had nine months to come up with a stroy and still couldn’t

    this was definitely something else

    What, we will never know

    EricPWJohnson (405d78)

  16. 11

    Right, but that can’t be assumed. The jury could evaluate their credibility. In any other case where a victim is known to be hiding material witnesses, the case would be dismissed.

    It’s like there was a black hole near where the incident occurred that was swallowing the defendants’ due process.

    The defense was hamstrung on discovery, by circumstance. They could only investigate the matter up to a line in the sand.

    Then they were hamstrung by the court, given no latitude with inquiries during the trial. What they did manage to learn, they were usually forbidden to mention.

    J Curtis (d21251)

  17. Davila testified that the van was waiting for him on the U.S. side of the border. Now that brings us a few questions I have not seen addressed: did the van have license plates? If not, that would give cause for the BP to follow the van. If it did, where were the plates from, Mexico or the U.S.? If they were from the U.S. was there a make ran on those plates to determine who the van belonged to?
    I can’t see that during the investigation no one would try to determine the owner of the van, the description of the interceptor vehicle that was going to lead Davila to the drop zone (he had to be told something, not just that someone was goint to wave at him. Hell, in Texas driver’s wave at people they don’t know all the time. It’s tradition). One other thing; why was the van left at the scene for so long before the BP had it towed?

    retire05 (8536d6)

  18. 17

    The license plates were Texas 9GSW89. I gotta believe that the defense looked into this and found a dead end.

    It took my a while to figure out how the smuggling operation worked. Here’s how I see it:

    Two vans meet up on opposite sides of the Rio Grande in a remote area. They arrive in sync because they need to do it fast. Rene Sanchez, using BPETS, possibly lets them know when and exactly where it’s safe to this.

    They move the load from the Mexican van to the Texas van. It only takes a minute with 4 people moving 750lbs of packages. Then they get a move on.

    Davila was driving the Texas van and never was in Mexico on that day, until his escape. I suspect he was living in the US at this point and was the American side transporter because he had a Texas driver’s licence ( perhaps under an alias ). Although, if the smugglers were concerned about appearances, maybe they weren’t using junk yard plates.

    I’m not sure if the government ever took a finger print from Davila and ran it through their data bank to find hits under an alias. He probably would have had people on the inside who would have purged that data anyway. And wouldn’t they have had his prints on file if he was legally authorized to drive truck loads back and forth?

    So many questions, so few answers.

    J Curtis (d21251)

  19. Here’s another scenario.

    Ramos and Compean were co-conspirators in this drug operation. They became enraged when Davila tried to cheat them out of their share of the profits and shot him. That’s why they couldn’t report this shoot, because their criminal scheme would have been discovered.

    And we know Agent Ramos has definite anger problems because he’s a wife beater. It’s too bad the jury couldn’t know that because it certainly would have convinced them Ramos is a violent person. But that corrupt judge wouldn’t allow this critical and important evidence.

    Now, I have no proof to support these baseless and slanderous allegations. In fact, I made them up. But we graduates of the Perry Mason/Jim Rockford School of Law are allowed to do that.

    lc (1401be)

  20. Here’s another scenario.

    Ramos and Compean were co-conspirators in this drug operation. They became enraged when Davila tried to cheat them out of their share of the profits and shot him.
    lc

    I’ve already considered that. Here’s where that theory falls apart:

    Davila had ample opportunity to surrender. The first guy he had the opportunity to surrender to was Oscar Juarez.

    At this point, you might theorize that Juarez was in on your conspiracy. The problem with that is that this was a public area with all sorts of civilian witnesses. Davila would have spilled the beans on his co-conspirators if they arrested him.

    And after he was shot by a co-conspirator, he certainly would have revealed their part in the conspiracy. He had already confessed that he was a drug smuggler.

    I’m happy to consider your scenarios but at least try to make them reasonable.

    J Curtis (d21251)

  21. Scott Jacobs and LC,

    I think we may be from the same Perry Mason/Jim Rockford generation. Good thing Patterico has us on the case. (By the way, LC, Ramos apparently had Tourette’s. That may involve anger issues but it’s not your typical anger management problem.)

    J Curtis,

    I agree with James B. Shearer #13 and Dwilkers #14.

    Retire05,

    The license plate was given in the next Transcript thread in the testimony by Oscar Benavides.

    DRJ (605076)

  22. Thanks, DRJ.

    I know you understood what I was doing. But I’ll behave from now on.

    lc (1401be)

  23. LC,

    My comment wasn’t intended as a critique. I understood your point and I’m glad you made it, and it was especially effective the way you made it. So don’t change anything based on my comment.

    I brought this up because I think Tourette’s is an important aspect of this case. I obviously don’t know exactly how the disease affects Ramos but my experience (limited, I admit) is that it produces unusual involuntary tics and nervous, ADD-type behaviors. I suspect that impacted the jury.

    This case was in part about whether the agents behaved appropriately at the scene. It appears the evidence will show that Compean fired 14 shots and that he had to reload his magazine to do that. Ramos, the senior agent on the scene, only fired one shot. Based on that information alone, a jury might reasonably conclude that Compean panicked but Ramos provided a stabilizing influence. On the other hand, the jury might have believed both officers were out-of-control after watching Ramos’ Tourette’s behavior over the course of the 2+ week trial. Perhaps the jury’s verdict was justified and based solely on the evidence, but I wonder if it might be based in part on his Tourette’s.

    DRJ (605076)

  24. DRJ,

    I didn’t take it as a critique. Thanks for the encouragement, though.

    You may be right about the Tourette’s affecting the jury. And, rightly or wrongly, if his Tourette’s tics and gestures were frequent in front of the jury, and if Tourette’s affects judgement and behavior (and I know almost nothing about Tourette’s), they may have wondered why BP hired him in the first place.

    And thanks for everything you’re doing here. I think we all appreciate it. That radio-transmission testimony was a real snooze.

    lc (1401be)

  25. Heh. So I’m putting you to sleep? Maybe I should post these at bedtime from now on …

    I’m didn’t mean to imply that Tourette’s affects judgment but I think it does affect mannerisms and juries pick up on that. Jurors are a captive audience and they don’t have much to do other than watch and listen to the Judge, the witnesses, the attorneys, and the defendant(s). My experience has been that they rely a great deal on what they see.

    DRJ (605076)

  26. Now, DRJ, I said the testimony was a snooze, not you.

    lc (1401be)

  27. LC,

    I like doing this and I might have done it even if Patterico hadn’t asked, but it is time-consuming and tedious at times. Thanks for letting me know at least one person is reading some of it.

    DRJ (605076)

  28. I appreciate it too, DRJ, because I cannot read the transcripts for myself. My primitive little browser crashes at around the eighteenth page.

    nk (50d578)

  29. I’ve been reading your posts with great interest, DRJ.

    Thank you very much for the time and effort expended.

    regards,
    JG

    Josef Gerbils (a7527e)

  30. Thanks for the really nice responses. Please let me know what I can do to improve this as I go along – what will make it more readable, easier to understand, etc. Would it be better if I use the attorneys’ names rather than identify them by who they represent, so you can get a feel for the individuals involved? Should I use more abbreviations or less? Any suggestions are welcome.

    In the meantime, I better get back to work …

    DRJ (605076)

  31. I think the voter ID Aldrete’s talking about is the MEXICAN voter ID or “cedula”. We don’t have anything like that in the US, but it’s common in Latin American countries.

    Tracy (b404ed)

  32. BTW, I also want to thank DRJ.

    Tracy (b404ed)

  33. 2 A. No, I didn’t wait. He got there first, as a matter of
    3 fact, before I got to the road.
    4 Q. Okay. And you’re saying this is just coincidence?
    5 A. No, it wasn’t a coincidence. I imagine that people that
    6 hired me were watching to see — I mean, they weren’t going to
    7 give me that merchandise and not be watching. So I imagine
    8 they saw me get shot
    . How could it be a coincidence that they
    9 just happened to find me?
    10 Q. Well, they certainly couldn’t see you the whole way driving
    11 into Fabens, could they? They couldn’t see you from the river,
    12 could they?
    13 A. No. What I’ve known is that they have glasses, and they
    14 can tell when all that goes on.

    15 Q. Okay. So you’re saying they could have watched with
    16 binoculars from the river up all the way into Fabens?
    17 A. Not from the river. After I had my surgery, I found out
    18 that they actually get up on the hills and watch with
    19 binoculars. They watch everything.

    Has there ever been a criminal case in the US where a “victim” has been allowed to shield material witnesses to the crime?

    note: he was still in contact with his criminal buddies months after the incident and immunity ( after his surgery )

    J Curtis (d21251)

  34. I think if I were interested in making sure that Mexican drug-lords have not corrupted our legal system would be to look at those who obviously have been swayed their legal ethics in the Border Patrol cases. Let us start with the judge, U.S. District Court Judge Kathleen Cardone in El Paso, Texas. Why would this woman go overboard and give such a harsh sentence of 11 and 12-years respectfully to the two Border Patrol agents? Why did she fail to allow evidence to support the drug-dealers real job, move drugs for hire? Why didn’t she allow the agents to remain out of jail while an appeal is being sought? Why such a rush to get these two into jail? What is she doing when she heard evidence had been withheld by the prosecution? NOTHING! Why would a judge who has justice at heart fail the justice system?

    What about Assistant U.S. Attorney Debra Kanof, who prosecuted the case? In an article written by Jerry Seper, Washington Times, October 20, 2006, Border agents sentenced in shooting wrote, Defense attorney Mary Stillinger argued in a motion for the convictions to be set aside and a new trial ordered after three jurors — Robert Gourley, Claudia Torres and Edine Woods — signed sworn affidavits saying they were pressured to return guilty verdicts after being told by the jury foreman that the judge would not accept a hung jury.
    “Essentially … they conceded their votes, believing that they did not have the option to stick to their guns and prevent an unanimous verdict,” Ms. Stillinger said in the motion.

    Assistant U.S. Attorney Debra Kanof told the court that the motion was not timely and lacked merit because “it does not constitute newly discovered evidence.” She said the affidavits were obtained six months after the defense said it had done what it could to obtain juror affidavits and after the court had denied an extension of time for filing new motions.
    The judge denied the motion before passing sentence.

    I am always amazed when federal attorneys fail, time and time again, when it comes getting at the truth of the matter instead of going for a win. It appears Ms. Kanof is also guilty of withholding evidence in this case. What is the judge doing? What is US Attorney Johnny Sutton doing?

    How many cases has Johnny Sutton’s district prosecurted since his arrival? How many major errors have occurred? Why would his office award drug smugglers amnesty for their testimony on stupid cases against Border Patrol agents? What is motivating him to work this hard in breaking the law by having evidence withheld from the defense? Is he on the take or just has his nose so far up someone’s tail he will do about anything for a win.

    Who was the jury foreman and why did he make such statements?

    Why doesn’t the State of Texas prosecute Aldrete-Davila for drug smuggling?
    Why do we not hear for the Senate and House Judiciary Committees?

    Frank Livingston (ff44b6)

  35. Why would this woman go overboard and give such a harsh sentence of 11 and 12-years respectfully to the two Border Patrol agents?

    Federal sentencing does not leave judges with much discretion. Cardone actually gave the agents the lowest sentence she could under mandatory guidelines. It was actually the least harsh sentence she could give them. If you have a problem with that, you should be writing to your senators and congressmen letting them know that you think sentencing guidelines should be abolished and greater discretion should returned to the judges.

    Why didn’t she allow the agents to remain out of jail while an appeal is being sought?

    Two reasons:

    First, the standard for release on bail pending appeal is very hard to meet. Under 18 U.S.C. § 3143(b)(1, it must be shown that the appeal raises a substantial question of law or fact likely to result in —
    (i) reversal,
    (ii) an order for a new trial,
    (iii) a sentence that does not include a term of imprisonment, or
    (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process.

    Second, where the sentence is longer than ten years, defendants are statutorily ineligible for release unless “it is clearly shown that there are exceptional reasons why detention would not be appropriate.” 18 U.S.C. § 3145(c). “Exceptional reasons” are: (1) the nature of violent act itself, including unusual circumstances surrounding the act; (2) the length of the sentence imposed; (3) and whether defendant’s arguments on appeal present highly unusual issues or issues not previously decided by the appellate court. See United States v. Garcia (2003) 340 F.3d 1013, 1018-1019.

    It may be that the appellate lawyers can find creative reasons why bail should be reconsidered. But those are really high hurdles.

    Tracy (4b4242)


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