The 11th witness of the trial and Monday’s third witness took the stand just after the lunch recess. Here is the testimony of Lorenzo Lucero Yrigoyen:
From Transcript X:
Witness #11 – Lorenzo Lucero Yrigoyen:
Government direct examination (by Jose Luis Gonzalez):
119 – Yrigoyen has been an agent with the Border Patrol for 16 years. His duties include patrolling the US-Mexico border south of Fabens TX. He has been assigned to Fabens since 2001.
119-120 – While in Fabens, Yrigoyen was initially in a regular unit patrolling in a car or truck. For about 2-1/2 years, he was assigned to a horse patrol unit that patrolled north of I-10 in the desert. He completed horse patrol in late January-early February 2005. He returned to line watch duties for about 8 months, from February through September 2005.
120-121 – There are 2 horse patrols in Fabens. They do not have much interaction with the marked BP units because they are further north. Interaction with units patrolling the river are slim, except at the station level.
121-122 – The agents meet every morning at the station for muster (morning briefing) and then for processing.
122-123 – Yrigoyen knows Ramos and Compean as fellow agents at the Fabens station. He identified them in the courtroom. They did not gather socially but Yrigoyen knows both of them well from work. Yrigoyen does not socialize with any BP agents.
123-124 – Yrigoyen received training from Ramos in the use of firearms and the side handle baton, also known as the asp. They teach defensive techniques and work on keeping proficiency up with the asp.
124-125 – Yrigoyen heard a radio call from Compean on February 17, 2005, around 1:11 PM. Compean said he saw a van leave the river heading north. At the time, Yrigoyen was east of the Fabens port-of-entry. Using GOV EXH 27, Yrigoyen located his position 1-2 miles east of the port-of-entry.
125-126 – Yrigoyen was riding with Rene Mendez, a trainee/probationary employee who had recently graduated from the BP academy and was assigned to the Fabens station. Yrigoyen was Mendez’s field training officer for the day, helping him become familiar with the area and with “service policy, station policy, procedures.”
126-127 – Yrigoyen and Mendez were riding in a BP drop-in unit — a pickup truck with a holding area in the back made to transport people. Yrigoyen identified his unit in GOV EXHS 9 and 15 as the vehicle adjacent to Compean’s unit.
127-128 – Yrigoyen and Mendez heard Compean put out the initial call. Several agents answered they were either already in the area or were headed that way to locate the van. Yrigoyen decided to hold his position after he heard Ramos radio that he had located the van and it was southbound towards Mexico. Upon hearing that, Yrigoyen decided to head to the area. It took a few minutes because his unit was high-profile (due to lights, antennas, 4-wheel drive) and he had to drive off the levee road onto the vega to go under the port-of-entry bridge.
128-130 – When Yrigoyen arrived at the scene, Ramos and Compean were standing toward the front of Compean’s vehicle. Yrigoyen identified the location of Compean’s unit on GOV EXH 11. Yrigoyen’s vehicle was further north, closer to the ditch.
130-131 – Yrigoyen observed Ramos and Compean standing in the front of Compean’s vehicle on the western side. Yrigoyen identified the location they were standing on GOV EXH 11. They were standing close enough to be talking but Yrigoyen is not sure what they were doing.
131-132 – As he drives up, Yrigoyen is observing the area to make sure it is safe for himself and his trainee. Yrigoyen is primarily looking south, because that’s where he would expect he might have a problem. When he’s on the levee road, Yrigoyen’s high-profile vehicle could be seen “pretty well” from Mexico and could be described as a “sitting duck.”
132-133 – As he got out of his vehicle, Yrigoyen looked around for threats and to be sure the area was secured. He was concerned for himself, his trainee, and for his fellow officer Compean, especially because he was in a [highly visible] high-profile vehicle and because he wanted “to go home at the end of the day.” It was a clear area. Yrigoyen didn’t see any danger to the south and there were several BP units to the north.
133 – Yrigoyen viewed GOV EXHS 9, 10, 12 and 15. He does not recall whether this incident occurred on a gray, overcast day, but it would be unusual because the area doesn’t get much rain.
134-136 – Yrigoyen saw Ramos and Compean and did not notice anything out of the ordinary. Eventually, trainee Mendez pointed out to Yrigoyen an individual moving southbound a couple of agricultural fields to the south. Yrigoyen identified GOV EXH 28 as a photo of the area where he first saw the individual in a center section above the Rio Grande, near the levee on the Mexican side.
136-138 – Yrigoyen observed the individual moving southbound. He wasn’t walking or running. He was moving at a decent pace through what looked like a cultivated or plowed field. Yrigoyen did not believe the individual was limping. He thought he was walking through an uneven field but it was also consistent with the walk of a person who had been shot in the lower body. [The Court overruled defense counsel’s objection to this question as speculative, but the government offered to rephrase and the Court concurred. The government moved on to another line of questioning after 2 subsequent attempts were ruled objectionable.]
138-139 – Yrigoyen believes Compean saw the individual that he and Mendez had seen, but Yrigoyen wasn’t 100% sure. Ramos had already returned to the north side of the irrigation canal. Compean doesn’t say anything about the individual/driver at that time.
139 – A white car pulled up on the roadway south of the field where Yrigoyen saw the individual. An individual in the car got out, walked northbound to the individual in the field, and appeared to assist him in returning to the car. Yrigoyen thought the individual from the car grabbed or was assisting him in some manner. Compean was still present when this happened.
139-140 – Eventually a blue van pulled up on the Mexican roadway and the 2 individuals got inside and the van went westbound out of view.
140 – At the same time, the agents on the north side of the irrigation canal are “taking care of” things.
140-142 – Field Operations Supervisor Richards yelled across the canal asking if there had been an assault. Yrigoyen responded he wasn’t sure and that Richards would have to ask Compean. Yrigoyen was taken aback, because any assault he had seen had been reported to management and proper channels. Yrigoyen thought that maybe an assault had occurred because, once Richards asked that, Yrigoyen asked Compean if something had taken place:
“A. I remember I turned around, and I asked Mr. Compean – I kind of was — like I said, I wasn’t really sure. And he asked — I asked Mr. Compean, An assault? I didn’t think you could have an assault without an assailant in custody.
Q. What did he say?
A. That’s when he told me that I — when the individual was running southbound across the levee, and he attempted to apprehend the individual, and with their momentum, they both tumbled down the south side of the levee into the vega area.”
142 – Yrigoyen identified the location on GOV EXH 28 where Compean and the driver struggled as the south bank of the levee road.
142-143 – Compean told Yrigoyen that he made an attempt to grab the driver as he was running south past Compean:
“A. That in — well, in an attempt to apprehend the individual, as he ran — was running south past Mr. Compean, he made an attempt to grab onto him.
Q. Who made an attempt to grab onto him?
A. Mr. Compean. And, with the momentum, with — I guess he did grab him. With the momentum, they both tumbled down the side of the levee road, down into the vega area, where the individual threw dirt in his face, and was able to break free, and ran back into Mexico.
Q. When you heard that, did that alarm you?
A. Yes, it did.
Q. So what did you do?
A. I made sure — I asked Mr. Compean, and made sure he was okay.
Q. Okay. And did Agent Compean, at any time on February 17th, 2005, indicate to you that the driver of that van had a gun on him?
A. No, sir.
Q. Or that he had seen something in his hand, a shiny object, that looked like a gun?
A. No, sir.
A. No, sir.”
143-144 – After his conversation with Compean, Yrigoyen told Richards that Compean had dirt thrown in his face. Yrigoyen thought that any report or documentation of an assault was between Compean and Richards.
Ramos cross-examination (by Stephen G. Peters):
144 – Yrigoyen doesn’t know how long it was between the time the driver jumped out of the van and ran south and Yrigoyen arrived at the scene. Maybe just a few minutes.
144-146 – Referring to GOV EXH 32, Yrigoyen agreed “the levee road on the Mexican side of the river is approximately the same distance from the river as the levee road on the American side of the river.” Yrigoyen also confirmed the government’s diagram that the approximate distance from the levee road to the river on the American side is 230 feet. Yrigoyen thought the river might be 20-30 yards (70-90 feet) wide. The approximate distance from the river to the levee road on the Mexican side is another 230 feet. Yrigoyen agree that when he saw the individual on the Mexican levee road, he had traveled at least 600 feet. For Yrigoyen to see the individual, he had to “break north” of where Yrigoyen’s vision was impaired by the south levee.
146 – Yrigoyen never spoke to Ramos because Ramos was already crossing over to the north side as Yrigoyen was exiting his vehicle.
147 – Yrigoyen thinks he would notice something unusual laying around, because he would be concerned about officer safety. He thinks he would notice a person laying on the bank of the river.
148-149 – Yrigoyen told Richards that the driver threw dirt in Compean’s eyes. As Yrigoyen said in his statement, he thinks that would be assault. There are forms to fill out when an assault occurs. One of those forms is a SIR – Significant Incident Report. If an agent reports being assaulted, Yrigoyen believes the supervisor should fill out a SIR. Yrigoyen is not a supervisor and is not sure what [a supervisor’s] responsibility would be, but that is his understanding.
149-150 – Yrigoyen did not believe the individual crossing the field was injured and that thought never occurred to him. Yrigoyen thought the individual was crossing a cultivated field, and it’s not easy to walk in a plowed field.
150-151 – Yrigoyen believes that a BP officer has a right to defend himself if he’s attacked. Yrigoyen has been assaulted but never with a firearm. Yrigoyen’s understanding is that an officer can use his firearm – deadly force – as a “last resort” when he is “in fear for his life or the life of an innocent third party”:
“Q. … And does the officer — does the — whether or not the officer was justified in using that force, is that determined after the fact, in hindsight, or is that determined by what the officer reasonably perceives at the time he makes that decision?
A. It is supposed to be what the officer perceives at the time.”
151-152 – [The Court sustained the government’s objections to defense counsel’s 2 questions regarding how the agent’s decision to use deadly force is evaluated.]
152-153 – Yrigoyen is familiar with and has been trained in the BP’s use of deadly force guidelines. Yrigoyen agreed that the following are accurate statements regarding the use of deadly force, although he doesn’t know if that’s the policy:
“The use of deadly force may be used — is justified when the officer reasonably believes that the person at whom the firearm is to be discharged possesses the means, the intent, and the opportunity of causing death or grievous bodily harm upon the officer or another person.”
“An officer can use deadly force when he has probable cause to believe that the person against whom the force is directed has the means, the intent, and the opportunity to cause death or grievous bodily harm upon the agent or third person.”
“Facts and circumstances, including the reasonable inferences drawn therefrom known to the officer at the time of the use of deadly force that would cause a reasonable officer to conclude that the point at issue is probably true. The reasonableness of a belief or a decision must be viewed from the perspective of the officer on the scene who may often be forced to make split second decisions in circumstances that are tense, unpredictable, and rapidly evolving. Reasonableness is not to be viewed from the calm vantage point of hindsight.”
154 – Yrigoyen agreed that officers get shot.
154 – Yrigoyen returned to horse patrol unit in September 2005.
155 – Since February 2005 to [the date of trial], Yrigoyen was briefed that threats and assaults were made against BP agents. Yrigoyen doesn’t know if they were in retaliation for this incident. Yrigoyen was briefed on threats prior to this incident – threats are not uncommon.
156 – BP agents are all that stands between “us and the rest of the world.”
156 – [Defense counsel offered and the Court admitted without objection GOV EXH 32.]
Compean cross-examination (by Chris Antcliff):
156-157 – Referring to GOV EXH 28, Yrigoyen identified where he first saw the individual “past this first field, into this second” and the location where Yrigoyen’s vehicle was parked. Yrigoyen also identified the location toward the southeast where the 2 individuals got in a blue van. There is a road there but Yrigoyen has not idea what the road is but he can see vehicles traveling on it.
157-158 – Yrigoyen gave a statement on March 29, 2005, about the events of February 17, 2005. Yrigoyen spoke to a lawyer before he gave the statement. Yrigoyen did not get a proffer or immunity letter before his interview.
158 – Yrigoyen was not placed on administrative duty because of this incident and he doesn’t believe he did anything wrong on February 17, 2005.
158-159 – Ramos was a training officer for Fabens and everyone had training from him, including Yrigoyen. Compean is a training officer for trainees and Yrigoyen does not recall getting any training from him.
159-160 – A field training officer is different than an instructor. It’s not a matter of seniority. Ramos has had specialized training to be an instructor. Yrigoyen has had instructor training, too. A field training officer is any agent who has training to fill out the necessary documents. An instructor is trained to instruct and teach and keep certifications up to par.
161-162 – A BP agent’s responsibility is to apprehend illegal aliens entering the US, and the BP is the primary agency charged with indicting drugs. Drugs are not the BP’s primary responsibility but they turn it over to the DEA if they come across it. Yrigoyen has heard the term “push back.” He calls it to deter. The BP deters aliens from crossing. To deter can mean to sit on the levee where people can see you and won’t come across.
162 – The BP gets calls about suspected drug vehicles moving around the border. Agents get interested in this and things happen pretty quickly.
162-163 – Because of the distance and because there were other agents responding, Yrigoyen did not respond at first to the radio call on February 17, 2005. An agent has a responsibility to monitor radio traffic to see if he’s needed and to know what’s going on. Yrigoyen eventually decided to respond. Yrigoyen went westbound on the levee road to Compean’s vehicle. Yrigoyen saw the van on the north side of the levee and a number of BP vehicles. He did not see anyone with weapons drawn on either side of the ditch.
163-164 – As Yrigoyen drove up, he, Mendez, Ramos and Compean were on the south side of the ditch. Ramos left to go to the north side as Yrigoyen drove up, and Yrigoyen did not speak to Ramos.
164-165 – Yrigoyen isn’t sure who was on the south side of the ditch. He remembers Vasquez, Arnold and Richards. Yrigoyen now knows who was there but he doesn’t have any recollection of it at the time.
165-166 – Yrigoyen did not perceive any threats to himself or his trainee at the scene. He did not hear any gunshots. Hearing gunshots would have been important to him. Yrigoyen has heard gunshots in the Fabens area.
166 – Neither Yrigoyen nor his trainee (to his knowledge) drew their weapons that day.
166 – Yrigoyen didn’t notice anything unusual about the individual that got in the blue van.
166-167 – Yrigoyen wasn’t expecting questions about an assault when Richards yelled across at him that day. Yrigoyen noticed that Compean had dirt on him and Yrigoyen also asked Compean about a cut on his hand. He doesn’t recall if Compean knew about the cut or not. However, Yrigoyen acknowledged that it would be accurate if his statement said he pointed out Compean’s cut and Compean seemed surprised.
Government redirect examination (by Jose Luis Gonzalez):
168 – Regarding the use of deadly force, on February 17th neither Compean nor Ramos communicated to Yrigoyen or anyone within his earshot that they were in fear of imminent danger of death or serious bodily injury.”
168-169 – Yrigoyen’s training tells him to let as many people as possible know if there is a weapon involved because it’s an issue of officer safety. If other officers are responding to your area and you are bringing them into a situation, that’s information you should relay to them for their safety.
169-171 – No one ever said there was someone out there with a gun. Yrigoyen is trained to take cover when someone has a weapon. If there is a threat, he would have taken cover behind his vehicle on the levee, or he would have driven away, or gone down in the irrigation canal to avoid. He would not have gone into the vega because there are too many unknowns and you are in harm’s way. For safety reasons, Yrigoyen would want to know if someone had a gun by the river.
171-172 – Yrigoyen told Richards about the dirt in the face of Compean. Yrigoyen is not a supervisor and doesn’t know the supervisor’s responsibility if Compean chose not pursue it. [The Court sustained defense objections to a series of government leading questions regarding the US policy on officer assaults.]
172-173 – Yrigoyen hopes that an agent would immediately report a gun to the agents in the area. The agent should also report it to a supervisor and should not wait a month or two to say anything. The agents would also want to know this for the future, because these types of incidents happen pretty often.
173 – [The Court sustained a defense objection to “Would you destroy the crime scene by picking up shell casings?” based on relevance.]
173-174 – Yrigoyen did not request immunity or get immunity before talking to the government. He did request “Calkin rights” (administrative rights – see p. 174 below). Yrigoyen also talked to an attorney when he was first contacted by OIG and before he first gave a statement to C. Sanchez on March 29, 2005. Yrigoyen has not given another statement.
Ramos recross-examination (by Stephen G. Peters):
174-175 – Yrigoyen agreed that a Calkin statement says you have to answer the questions, cannot invoke your immunity into the Fifth Amendment, and your statements cannot be used against you in any criminal prosecution. If you refuse to answer, you can be disciplined administratively, you could be fired, but they can’t use it against you criminally. That’s the agreement Yrigoyen signed.
175-176 – It seemed to Yrigoyen that he had been at the scene for a “long time” before they noticed the individual running south, but the records show it was actually “pretty short.” However, Yrigoyen thinks the individual was already south of the river when he arrived or he would have noticed him.
176 – Yrigoyen isn’t sure that the person he saw running south was the person involved in the altercation [with Compean].
177 – The time to yell “gun” or “cover” is when you see the gun. Even if the individual with the gun has gone, you would still warn others in the area on the radio.
177-178 – The officer should use the totality of circumstances to decide if someone is a threat. Thus, when a person has refused to pull over for flashing BP lights, that would be a factor to decide if an individual was dangerous. If the individual scuffled with an agent and refused to stop, those would be factors. If an officer heard gunfire before encountering a subject, that would be a factor. If an officer learned another officer had fired his weapon, that would be a factor.
Compean recross-examination (by Chris Antcliff):
178-179 – If the individual had brandished a weapon or something that looked like a weapon, that would be a factor.
179 – No one was shooting at Yrigoyen when he arrived at the scene.
179 – Yrigoyen believes that Ramos was the only agent who crossed through the ditch to the south side but he didn’t ask him – it just looked that way.
Government redirect examination (by Jose Luis Gonzalez):
179-180 – Assuming all the factors that defense counsel mentioned, Yrigoyen would still want to know if the individual had a gun, and he would want that information passed along since he was a “sitting duck.” [The Court sustained repeated objections to leading questions.]
181 – No one ever mentioned to Yrigoyen that the fleeing suspect had a gun, a shiny object that looked like a gun, or an object in his hand. If he had known that, Yrigoyen would have notified other people at the scene and on the radio of the possibility that someone in the area had a weapon.
182 – Yrigoyen is not aware that Ramos or Compean told anyone about a gun on February 17, 2005.
Ramos recross-examination (by Stephen G. Peters):
182 – Neither Ramos nor Compean told Yrigoyen that they believed they had hit an alien with a bullet.
Compean recross-examination (by Chris Antcliff):
182-183 – Nobody shot at Yrigoyen on the levee. He doesn’t know if the threat had passed but it seemed it was over by the time he got there.
Government redirect examination (by Jose Luis Gonzalez):
183 – If a person has a gun and is walking away, you do not remain silent. You tell other agents but that did not happen.
183-184 – [Witness excused.]