Patterico's Pontifications

3/1/2007

DRJ Pores Through the Border Patrol Trial Transcripts – Jonathan Richards (Volumes X and XI)

Filed under: General — DRJ @ 1:51 am



The 12th witness of the trial was Jonathan Richards, field operations supervisor at the Fabens’ station on February 17, 2005.

From Transcript X:

Witness #12 – Jonathan Richards:

Government direct examination (by Debra Kanof):

184-185 – Jonathan Richards has been employed by the Border Patrol 17 years, and has been a supervisor for the past 8 years. On February 17, 2005, Richards was the field operations supervisor (FOS) at the Fabens station and he is still the FOS at Fabens. As of February 17, 2005, Richards had been FOS at Fabens for 2 years.

185 – A FOS is the person who supervises the supervisors and oversees field operations.

185-186 – Prior to being FOS at Fabens, Richard was a supervisor at Ysleta next to Fabens. Fabens is about 24 miles long. On one side of Fabens is El Paso County and on the other side is Ysleta. Richards had been at the Ysleta station his entire career before moving to Fabens. He was a supervisor at Ysleta for about 5 years and then was promoted to FOS at Fabens.

186-187 – The Fabens station is a large building that has offices, a detention area in the back, a muster room, horse stables and a garage. Other supervisors have offices but the agents do not.

187-188 – All supervisors and manager monitor the radio traffic. Richards can hear the radio from his office because he has a base station radio in his office. He can hear repeater traffic and local traffic if it’s near enough. The ability to hear local traffic varies with the weather, obstructions, and distance. If someone is talking on the local or talkaround radio, repeater traffic will override it.

188 – Richards suggested to his agents that they transmit on the repeater radio because it lets everyone hear them, including supervisors and managers who might not be able to hear the local traffic. Using the repeater is a safety issue. Some agents prefer to use the local radio.

188-190 – The radio is located in the center console in most BP units. It transmits and receives transmissions. The agent has to press a direct button to send transmissions on the local radio, but the agent doesn’t have to change the radio to receive repeater and local transmissions. The radios receive all transmissions.

190-191 – To send a local transmission, an agent would pick up the mike, press the direct button, and talk. It is not complicated and does not take long.

191-192 – On February 17, 2005, around 1:11 PM, Richards was in his BP office monitoring the radio traffic. The first thing he heard was Compean call out a vehicle leaving the area at a high rate of speed. Richards does not know if this was local or repeater traffic. Hearing this made Richards listen more attentively and to call Supervisor Robert Arnold to respond to the area. Richards is Arnold’s boss at Fabens.

192-193 –After Richards sent Arnold out, Richards heard silence and that made him want to know what was going on so he attempted to call some of the agents that were talking about the vehicle. Richards used the repeater frequency. 99% of the time he uses the repeater so everyone can hear his transmissions. Richards also uses the repeater because it records the transmission and there’s a record if it’s needed.

193-194 – Richards does not recall the exact transmissions from that day but something makes him think he heard Ramos’ voice. He thinks he tried to call Ramos on the repeater to ask his 10-20 – his location. Ramos did not respond, and Richards was concerned.

194-195 – Richards called Arnold to ask if he had arrived at the location, but Arnold had not. Richards called Arnold on the cellphone and not the radio because he did not want to tie up the radio and [in response to a leading question] so he could have a private conversation between supervisors. Then, Richards “grabbed a camera out of the armory” and went to the location. Richards took a digital camera because he wanted to document any seizure. He heard the call for a van and thought it possible there would be a seizure.

195-196 – As supervisor, Richards does not respond to every seizure but he was concerned about this one because there was no radio traffic. It took Richards 5-10 minutes to get to the scene on Jess Harris Road. Right before he got there, he radioed again asking if they were 10-18 [Is everything okay?] and Mendoza answered they were 10-19 [Everything is okay].

196-198 – For a minute or two, as he went from his office to his vehicle, Richards could not hear the radio traffic. Except for that time, he could hear radio transmissions in his office and his vehicle. Richards did not hear anyone ask permission to make a hot pursuit – when a vehicle refuses to yield to a BP vehicle and violates traffic laws, and the BP vehicle would have to violate traffic laws to pursue that vehicle.

“Q. Your primary mission is to intercept illegal aliens, correct?
A. That’s correct.
Q. And how often is it that an agent requests a hot pursuit to pursue an illegal alien?
A. I have never had a request for that.
Q. Your secondary mission is terrorism. We’ll skip over that. You also assist the Drug Enforcement Administration in seizing loads that you observe. Is that correct?
A. That’s correct.
Q. And under what conditions do you authorize a hot pursuit to chase a load vehicle?
A. I don’t.
Q. What do you mean, you don’t?
A. I don’t think that the narcotics load would be worth the safety of the officer, the suspect involved or the public.”

198-199 – All agents are taught the BP hot pursuit policy at the academy and have annual refresher courses. Richards believes Ramos and Compean have had that training because it’s SOP. Agents can speed without asking permission to pursue, but Richards doesn’t “believe there’s a set time [before permission to pursue is requested]. But it’s what’s reasonable, to catch up to the vehicle and attempt to make a vehicle stop.”

199-200 – How fast should an agent go to catch up to a vehicle? Richards would not speed through the S curve ‘for anything.’ The speed on the straightaways should be what an agent feels is “reasonable and safe.” Richards believes that going 65 mph on Jess Harris to make an immigration stop would be excessive. Richards would expect an agent to ask permission to pursue and, if requested, Richards would have said “absolutely not.’

200-201 – The BP rules of hot pursuit prohibit pursuit except in a marked BP sedan. The vehicles these agents had were high-profile vehicles that are not allowed to pursue for safety reasons: “It’s spelled out in the pursuit policy that you cannot engage in a high-speed/high-risk pursuit without having a marked sedan.” [In response to leading questions:] Sedans don’t roll as easily, especially on dirt roads.

201 – To engage in a hot pursuit, the agent has to know the person is committing a felony. A van driving at a high rate of speed doesn’t mean the driver has committed a felony.

201-202 – To engage in a hot pursuit, the agent must notify sector communications on the repeater and give information on the vehicle, speed, direction, “various items.” The agent has to give the license plate. These things weren’t done on February 17, 2005. [The Court sustained defense counsels’ objections to repeated leading questions.]

202-203 – To pursue a person, the agent must advise what activity the person did that led to the hot pursuit. Richards would not have authorized a hot pursuit if told that a van was leaving area 76 at a high rate of speed.

203-204 – Richards identified a document identified as the BP hot pursuit policy and item 5 on page 7: “Provide the identity or description of the known occupants and/or drivers.” Richards stated that this means the agent must have some prior knowledge of what the driver had done to initiate a pursuit.

204 – The agent must also show that “the benefits of pursuing the individual outweigh the dangers.”

204-205 – Richards never authorized a hot pursuit in his 8 years as a BP supervisor and never requested one in his 17 years as an agent. He has never been in that situation and he would not do it except for a “very, very serious offense.”

“Q. A lot of times Border Patrol agents intercept individuals that turn out to be known felons, correct?
A. That’s correct.
Q. If they were intercepting an individual that turned – that they knew to be a known felon, who then escaped from them, would that justify a hot pursuit?
A. For simply an escape?
Q. Yes.
A. No, ma’am.
Q. Even that would not justify a hot pursuit?
A. Not in my opinion.”

205-206 – BP supervisors have a lot of paperwork. Richards has never shirked from doing paperwork. It is a part of his duty and he has never given anyone the idea that he doesn’t want to do paperwork.

206-207 – If an agent reports being assaulted, they would file an assault report, a significant incident report (SIR), and pass the information to the FBI. There does not have to be an injury to file an assault report or a SIR. The supervisor prepares these reports. The agent has to do little or no paperwork.

207 – Richards has not told his agents what should be done if there is an assault, nor is this a part of their training. Agents know what to do by “their tenure in the BP.”

207-208 – After the FBI investigates, assaults are referred to the US Attorney. Richards believes the US Attorney in El Paso has a zero tolerance for assaults on federal agents. Richards knows the US Attorney has prosecuted assault cases from Fabens in the last 3 years. Reporting is still required even if you “don’t have an assaulter.”

208-209 – On February 17, 2005, Richards saw several BP vehicles on Jess Harris and 2 BP vehicles on the levee. At Jess Harris, Richards saw: “Agent Ramos, Agent Jacquez, Agent Juarez, Agent Vasquez, Agent Mendoza. And I think a little bit after I arrived Agent Medrano arrived, as well, and then Supervisory Border Patrol Agent Arnold.” The agents told him everything was okay.

209 – [The Court sustained defense counsel’s objection to repeated leading questions.]

209-210 – When Richards arrived, the agents were standing in a group on the east side of the van – the driver’s side. Richards parked behind the other BP vehicles. At least one BP vehicle was on the driver’s side of the van and a couple were behind the van.

210-211 – Richards asked if everything was okay. Ramos told him it was. For the most part, Ramos was the speaker. Ramos explained the driver stopped on the north side of the canal and fled through the canal. Compean tried to grab him in a side-to-side movement, fell down, and got dirt in his eyes.

211 – Richards wasn’t sure at that point whether or not Ramos had seen these events.

211-212 – Ramos didn’t tell Richards that Compean held a shotgun on the driver, that Compean tried to hit the driver with his shotgun, or that Compean told the driver to stop. Richards speaks Spanish. Ramos did not tell Richards that anyone yelled “Parate.”

“Q. Did Agent Ramos tell you that — but he did tell you that there was a side to side movement on the part of Agent Compean?
A. I’m not sure of his exact words. But what he related to me was that Agent Compean had either tried to grab him, or some way cut him off from running back into Mexico.”

212-213 – After Ramos told Richards that Compean fell and got dirt in his eyes, Richards yelled over to Compean (about 100 yards or less) and asked if he was okay. He said he was and did not seem concerned. Richards asked him to head to the office so they could talk.

213 – Ramos seemed hyped up to Richards. Richards is aware that Ramos has a “neurological disorder.”

“Q. And you’ve supervised him for a long time. So was this his typical behavior, or was it different?
A. Well, it varies. When agents catch narcotics loads, there’s a lot of high fives. They’re kind of elated that they have apprehended the load, and proud. So it’s kind of hard to tell.
Q. High fives? Well, let’s talk about that for a minute.
A. That’s a figure of speech, though, ma’am.
Q. Well, I understand that. But do agents get brownie points for apprehending a marijuana load?
A. No, ma’am.
Q. Do you keep records regarding what agents apprehended loads?
A. No, ma’am.
Q. And does the apprehension of a marijuana load enhance their career?
A. No, ma’am.”

213-214 – Among agents, there is a difference between apprehending an illegal alien and seizing a marijuana load. Getting a marijuana load is something to brag about.

214-215 – When he arrived, Richards “got onto them” because there wasn’t much radio traffic and they needed to put stuff on the repeater and let them know what was happening. Richards did not congratulate them for getting the dope.

215 – Richards told Compean to go to the office and he told the other agents to load the marijuana in their vehicles. He sent the agents who weren’t needed back to their areas, and a tow truck was called for the van.

215-216 – Richards does not recall what area Vasquez was patrolling that day. Richards believes Vasquez was one of the agents he sent back to patrol.

216 – Richards asked supervisor Arnold to call the tow truck. Then Richards followed his agents back to the office. He arrived as the agents were unloading the marijuana at the sally port.

216-217 – Richards went to the processing room and Compean was there. Richards asked Compean if the suspect had struck or hit him, and Compean said no. Richards asked how Compean got dirt in his eyes and Compean told him that he had fallen and it got kicked up into his eyes. [In response to a leading question,] Richards asked again if Compean had been assaulted and he said no.

217-218 – Richards did not have a conversation with Ramos at the processing center. [After having his recollection refreshed from reviewing his statement to C. Sanchez:] Richards recalled that Ramos was present when Richards questioned Compean at the processing center. However, Richards clarified/corrected the statement he made to C. Sanchez by noting that Ramos’ statements to Richards were made in the field and not in the processing center. Richards also recalled that Ramos told Richards that the suspect fled to Mexico and got in a white car.

218-219 – Compean, Yrigoyen and Mendez were on the levee when Richards was there but Richards did not recall seeing Yrigoyen at the time.

219-220 – Any agent who participates in or observes a shooting has an obligation to report it within 1 hour or before going off-duty to a BP supervisor. This also applies to people who learn about or come into information about a shooting.

220 – A shooting is reported as a SIR and passed up the chain of command to the FBI.

“Q. We’re using the term shooting. That’s kind of loose. The policy actually says a discharge of a firearm, correct?
A. That’s correct.
Q. Okay. What is a reportable shooting?
A. A reportable shooting would be some type of shooting that occurs outside of a practice situation.”

220-221 – The only exception to reporting a shooting is in practice, quarterly firearms qualifications, a sporting event, etc. BP agents are federal law enforcement officers who must qualify – recertify their weapons – on a quarterly basis.

221 – Richards doesn’t recall if February 2005 was a time when agents were qualifying. Qualifying is when you go to a BP firing range, shoot at targets, and are scored. If an agent fails to make a certain score, his authority to carry a weapon can be withdrawn.

221-222 – BP agents also receive instruction when they qualify. Ramos was a certified firearms instructor and the instructor for the Fabens station.

222-223 – To be a firearms instructor, an agent attends the FITP School at the BP academy in Artesia NM. The duties of a firearms instructor are to conduct the quarterly qualifications. Provide training to agents who need remedial type training in the firing of weapons, and give demonstrations on how different weapons operate and work.

223 – Firearms instructors have to know the firearms policy well because they teach it. A part of that policy is to report a shooting within 1 hour.

223-224 – The BP has a special response team that is similar to a SWAT team. To be on that team, an agent must be an above-average shooter, pass a PE test and an oral battery, and take special training. Agent Ramos and FOS Richards have been members of the special response team.

224-225 – A sector evidence team is a team that has been compiled and has attended training in the proper collection of evidence and storage of evidence. And they respond to incidents, serious incidents, regarding the Border Patrol. It is called in for a motor vehicle accident, shootings, “serious situations.” A sector evidence team is called in anytime there is a reportable shooting, e.g., a discharge other than during practice, regardless of whether anyone is hit by a bullet. It is the supervisor’s responsibility to call the sector evidence team.

225-226 – Richards did not call the sector evidence team on February 17, 2005, because he was not aware there had been a shooting. Ramos was on the sector evidence team.

226-227 – The supervisor or, if no supervisor is present, the agents are supposed to cordon off the area and make notifications and make sure that the sector evidence team responds. The sector evidence team takes photographs, measurements, and collects evidence just like a crime scene type of investigation. The sector evidence team would collect evidence like shell casings (a brass cartridge from a spent bullet) and look for blood. When a shooting occurs, “most agents” would put that information on the radio for the safety of other agents in the area” and then notifications would be made up the chain.

227-229 – Richards identified GOV EXH 30, a photo of the Jess Harris crossing area. [The Court sustained defense counsel’s objection to leading questions.] Richards identified the border between the US and Mexico.

229-230 – If someone were standing on the raised levee, he would be a silhouetted target to someone shooting from the other [Mexican] side of the border. No one told Richards that Yrigoyen or Mendez were warned that the fleeing person had a gun.

230-232 – On February 17, 2005, Richards would have called his supervisor, Benjamin Robinson, who would have notified the assistant chief patrol agent, who Richards thinks was Salvadore Nieto. Then a report would be made to the deputy chief, to the El Paso BP chief, Luis Barker, and to headquarters. All reports would initially be oral but followed up in writing, to be written by a supervisor or supervisory BP agent.

232-233 – Richards would have written the report if Ramos and Compean had told him there was shooting on February 17, 2005. That’s not his reputation. [The Court sustained defense counsel’s objection to Richards’ testifying to his own reputation.] Richards’ policy on paperwork is to “complete it timely and correctly” and he thinks his agents know that. There has never been a time when Richards “failed to do paperwork because it was too much paperwork.”

233-234 – If Ramos and Compean had reported the shooting, the required paperwork included a SIR, memorandums, and notifications. An investigation would have been done by the El Paso Sheriff’s office (for the local DA) or the FBI (for the US Attorney). Only the FBI can investigate civil rights violations.

234-236 – There is also an internal BP investigation. A shooting review committee reviews all reportable shooting events and documentation. The sector evidence team investigates. Richards believes the committee review the sector evidence team investigation, but he “doesn’t have much knowledge of the workings of those review committees.” [The Court sustained a defense objection to further questions about the review committees because the witness had testified to his lack of knowledge.]

236-237 – An agent who is involved in a shooting is placed on administrative leave for 2-3 days and then comes back on duty – before the investigation is completed. [The Court sustained an objection to a leading question that the shoot is presumed good during the investigation.] The agent is taken off-duty for “emotional well-being.” Agents are provided the number for the Employee Assistance Program (EAP) if they need it, because:

“Well, in any traumatic event, such as a shooting event, and if you shot someone, I’m sure you would have turmoil within yourself that you need to talk out.”

237-238 – Richards isn’t sure how you decide to put someone back on duty. The supervisor doesn’t get a report from the sector evidence team. They might not be put back on duty if they were indicted – but nobody is indicted in 3 days.

238 – The use of deadly force is included in firearms training. Agents are taught to use deadly force: “When they feel that their life, their partner’s life, or the life of an innocent party is in jeopardy, and the subject has the means, the intent, and the opportunity to either kill them or do them grievous bodily harm.”

239 – Agents can shoot animals if they are going to attack. This must be reported, too, and will be investigated.

239 – Richards first learned that Compean and Ramos had discharged their weapons in mid-March 2005 when he gave his statement to C. Sanchez.

240 – [Court recess for mid-afternoon break.]

241-242 – [After refreshing his recollection of the date by reviewing a copy of his statement:] Richards first learned that Compean and Ramos had discharged their weapons on March 22, 2005, when he gave his statement to C. Sanchez from the OIG. Richards didn’t know anything about the discharge until he met with Sanchez. The OIG investigates allegations of BP administrative and criminal misconduct and civil rights violations.

242-243 – The firearms policy changes sometimes. The shooting review committee is “in flux.” Agents are told about changes in quarter firearms certifications. Agents are also reminded of deadly force rules in certifications.

Ramos cross-examination (by Stephen G. Peters:)

243-244 – The term “hot pursuit” is not in the BP pursuit policy. The pursuit policy is triggered anytime someone fails to stop when a BP agent tries to pull him or her over. Page 3 of the policy applies to any BP officer in any vehicle – regardless of whether the agent violates traffic laws – who tries to pull someone over who won’t stop.

244-245 – Richards agreed that “… the first time that an agent turned on his lights and attempted to pull over this van, the pursuit policy was implemented — was — was brought into play, as soon as that guy didn’t pull over.”

245-246 – Richards agreed that page 8, paragraph C of the pursuit policy provides that “once a backup agent arrives, he would take over notifying radio communications of the direction, travel, speeds, et cetera.” The first vehicle has to focus on the pursuit.

246-249 – [Defense counsel outlined a hypothetical whereby Juarez and Ramos were following the van, during which Ramos was in the first vehicle followed by Juarez. The government objected to the hypothetical as a mischaracterization of the evidence. The Court overruled the objection. Counsel and Richards further discussed the Vehicle Pursuit Procedures of section VII of the policy.]

249 – Richards did not agree that Agent Juarez initiated a pursuit.

249 – Richards quoted Section C, part 2 of the Pursuit policy (on page 6) to mean that: Once the pursuit has been formally notified and the supervisor has approved it, the one who falls in as backup is the one who is supposed to be radioing the information to the — to the super[visor]. He read that section of the policy aloud:

“A high-speed/high-risk vehicle pursuit may be initiated by a Border Patrol agent in a pursuit vehicle when all of the following criteria are met:
The suspect exhibits the intention to avoid arrest by using a vehicle in excessive speed or committing hazardous moving violations to flee apprehension for a felony or misdemeanor that would normally require a full custody arrest.
Letter B, The operator of the vehicle refuses to stop at the direction of the agent.
C, the suspect, if allowed to flee, would present a danger to human life or cause serious injury.
And, D, communications personnel are notified by the agent who initiates the pursuit.”

250-251 – [Ramos’ counsel submitted a hypothetical that Supervisor Arnold would testify Ramos notified him that he was going to “light it up.” The government objected to a hypothetical based on prospective testimony and the Court agreed that Richards should be recalled after Arnold’s testimony.]

251-253 – If Ramos got on the radio and said he was going to “light it up,” Richards believed that meant Ramos was going to attempt a stop. If Ramos stated the vehicle refused to yield, it meant the vehicle refused to stop. Richards stated he did not believe Ramos said this but he has not read Arnold’s statement.

“Q. Okay. If Agent Ramos got on the radio and said he had a failure to yield, what would that mean to you?
A. That would mean the vehicle refused to stop.
Q. Okay. And then if he said he was going to deactivate his lights and follow, to get a direction of travel that would be the type of radio communication that an agent initiating a pursuit is required to do. Is that correct?
Q. Okay. And once an agent initiates a pursuit and notifies supervisors over the radio that that’s what he’s doing, it becomes a supervisor’s responsibility to say, Wait a minute. Stop. Or, Let it go. Correct?
A. Yes and no.
Q. Well, what part of it is yes?
A. That didn’t happen that day, so that I don’t — I’m not comfortable testifying that that’s what — I think that’s what you’re trying to get me to say, and that’s not the case.
Q. You didn’t read Agent Arnold’s report, right?
A. No, sir.
Q. And I’m asking you, if that happened — and if it turns out that it didn’t happen, then we will all stand corrected.
A. Okay.
Q. Okay? So would that answer be that, if that happened, then, yes, that’s what an agent has to do, to report to – the communications portion — to the supervisors about initiating a high-speed chase?
A. Yes.
Q. Okay.
A. Not a high-speed chase for a vehicle stop.
Q. A pursuit.
A. I think we’re splitting hairs. I don’t think I would term it as — the way you’re terming it.
Q. You wouldn’t call it a pursuit?
A. No.
Q. Well, do you disagree with the definition of pursuit that is in the administrative manual of the Immigration and Naturalization Service?
A. What page is that on, sir?
Q. That page would be on page 3, at the top of the page. We already went through that.
A. To my recollection, it sounds like a contradiction in terms.
Q. Well, it’s — this is kind of a confusing policy, isn’t it?
A. I won’t say that it’s confusing, but I’m sure if it’s – it left a question, as far as the term of pursuit, in my mind.
Q. And it’s also part of the policy that, whenever there is a pursuit, that the supervisor of the agents initiating a pursuit has to prepare a report outlining the details of the pursuit.
A. That’s correct.
Q. Do you know whether such a report was prepared in this case?
A. No, sir, there was not.”

253-254 – In February 2005, the sample pursuit report form was a 2-page form. A pursuit report was not filed in this case. The agent and the supervisors were responsible for filing the report. The supervisors were Arnold and Richards. Ultimately it was Richards’ responsibility to prepare the report or assign Arnold to prepare it.

254-255 – After reviewing the table of offenses, Richards stated that the administrative penalty for failure to file a report of discharge of a firearm is written reprimand to 5-days suspension (for a 1st offense) and 5-days suspension to removal/loss of job (for a second or subsequent offenses). It doesn’t say anything about incarceration.

256 – The BP does keep records of apprehensions and seizures (Form I-44) by agent that show which agents made which seizures.

256-257 – [Ramos’ counsel offered RAMOS EXH 10, described by the government as a document that “was generated by Christopher Sanchez in the investigation of this case. It is not a Border Patrol document kept in the normal course of business.” The government objected to the use of the document and the Court temporarily denied the objection. The Court overruled a motion to strike by Compean’s counsel regarding the testimony by the government’s counsel as to the nature of the document.]

258 – Using BP data, it’s possible to ascertain the number of seizures in Fabens and the agents responsible for the seizures. In the regular course of business, they compile this information for the station but not for each agent. The data showed that Fabens’ agents seized 43,703 pounds of marijuana from 1/2004 through 3/2005.

258-262 – [In response to a question that the data was based on 155 seizures, the government objected based on relevance. Bench conference regarding the basis for these questions, including the agents’ state of mind and to show how many people get away – Juarez testified that agents frequently let drug smugglers go to avoid paperwork. In addition, the testimony showed that Ramos was excited about the large drug seizure. The Court did not see the probative or impeachment value of this testimony.]

262 – [Bailiff noted the jurors couldn’t hear Mr. Peters.]

262-263 – There are 12 stations in the El Paso sector of the US Border Patrol – 3 in El Paso County [Texas] and 9 in New Mexico. One is Fort Hancock, just across the line in Hudspeth County. Fabens covers the lower portion of El Paso County with 24 miles of river frontage. All these seizures occurred in that “little” 24-mile section of SE El Paso County river frontage – a section Richards described as “large” if you had to patrol it.

263-264 – The BP firearms policy states that an agent is entitled to use deadly force when he reasonably believes it’s necessary to protect his life or the life of another or to protect himself or another from grievous bodily injury or death. That is a split second decision. An agent is not required to get shot to make sure the object pointed at him is a pistol, and is entitled to take into account the totality of the circumstances.

264-265 – In deciding whether to use deadly force, factors an agent might consider include whether the suspect refused an order to stop, whether the fleeing suspect was in a confrontation with another agent, whether he heard gunshots, whether another agent fired his gun, whether the suspect was a suspected drug trafficker, and whether this occurred on the border as opposed to in a mall or downtown El Paso.

265-266 – It could be reasonable for an agent to defend himself if he saw someone point a weapon at him or thought he saw a weapon, and it can be hard to figure these things out after the fact. Richards agree that “the question is whether the agent has a reasonable belief, and it’s not ultimately whether that belief turns out to be well-founded or correct.”

Compean cross-examination (by Chris Antcliff:)

266-267 – What Richards knows about the other agents’ testimony came from the newspapers. He testified the first he knew of the shooting was March 22, 2005, when he gave his statement, but Richards may have learned something March 18, 2005, when Ramos and Compean were arrested. He did not know the particulars.

267-268 – Richards and some agents at the BP station discussed the arrest. Richards did not know why 2 of his agents were arrested, and he tried to figure out why.

268-269 – Richards can’t recall exactly but he thinks he did not know why Ramos and Compean were arrested until he talked to C. Sanchez on March 22, 2005. Richards gave a statement and then he and C. Sanchez talked about what Sanchez learned had transpired on February 17, 2005. Prior to giving his written statement, Richards had no information from Agent Sanchez about what had happened on February 17th.

269-270 – On February 17, 2005, Richards heard a call from Compean that a van was leaving area 76 at a high rate of speed. Area 76 is commonly used for illegal alien traffic.

270-271 – Richards took the call from Compean to mean that he possibly had a load of illegal aliens or drugs. He thought that because that is common with sensor activity in that area.

271 – Based on the radio traffic, Richards’ agents were moving to investigate that the van.

271-272 – Richards listened to the recording for February 17. His voice is on the recording. Not all radio traffic was recorded because not all agents were on the repeater.

272 – The BP radios have a button labeled “DIR” for direct. If you push that button, green illumination letters show “DIR” on the console. That means you are on local transmission, not repeater. You’re on the repeater when it does not say DIR.

272-273 – On February 17, Richards berated his agents for not using the repeater and for the lack of radio communication. He does not recall if he congratulated them. It’s possible but “Sir, that was a year ago. I don’t remember every word I said out there in the field.” It was Richards’ practice to congratulate his agents when they did a good job, and picking up 700 lbs of marijuana was a good job.

273-274 – The Fabens station is at 16001 Socorro RD, about 5-7 miles from Jess Harris RD. It took Richards 5-10 minutes to get there. He wasn’t in any hurry because nothing seemed unusual.

274-275 – When he arrived at the scene, Richards saw several agents standing around and a number of parked vehicles. The front tires of the van were on the lip of the ditch. One of the 2 back doors of the van was open, and the driver’s side door may have been open. Richards does not think the passenger door was open.

275-276 – Richards looked in the van. He believes that agents Ramos, Mendoza, Jacquez, Juarez, and Vasquez were there. Richards does not recall how many agents were on duty that day but usually there are about 9 on duty per shift. Most of the agents he supervises were at the scene.

276-277 – Richards called Arnold on his cellphone for privacy and to avoid tying up radio traffic. An agent can “tell others to shut up” by saying 10-23, which means clear the channel for emergency traffic. Richards didn’t recall hearing anyone call a 10-23 on February 17 but, later, he read it in the transcript. Richards didn’t hear all the radio traffic in this incident.

277-279 – [Richards reviewed GOV EXH 92, the radio transcript.] Richards made radio calls 7 or 8 times during the incident, “depending on this scratchout here.” Richards isn’t sure if he used local radio transmissions on that date. He does not recall having a conversation on local with any of his agents that day.

279 – The transcript does not show any conversations between Richards and Arnold on February 17 between 1311 and 1328. Richards believes that his only conversation with Arnold was by cellphone.

280-282 – When Compean said he saw a van leaving area 76 quickly, that means the same thing as leaving at a high rate of speed. Richards does not recall hearing transmission by Juarez. The next thing Richards heard was calling out several times and Mendoza responded everything was 10-19, meaning okay.

282-283 – An emergency beacon went off in one of the BP vehicles that day. – vehicle Hotel 9173. Richards does not know whose vehicle that was. Arnold assigned the vehicles that day.

283-284 – The highest-ranking BP agents at Fabens are special operations supervisor Donald Lucero and patrol agent in charge Benjamin Robinson. They are higher ranking than Richards. Fabens has 6 supervisors – 2 per shift. On February 17, 2005, Benjamin Robinson was the patrol agent in charge and Bernard King was the special operations supervisor.

284 – The transcript shows 2 calls from Juarez at 1318 and 1319. Richards does not remember hearing those calls.

284-285 – Richards did not exceed the speed limit as he went from the station to Jess Harris on February 17. He slowed for the S curve.

285 – Richards did not reprimand any agent for a pursuit he wasn’t aware of.

285-286 – Richards cannot say if he would hear local traffic from BP units in the town of Fabens. It depends. The town is about 1-1/2 miles from the station, and you can normally hear local traffic from that distance. Richards doesn’t recall hearing any traffic but he might have. Richards didn’t hear any of the calls between the units regarding the direction of the van’s travel.

286 – Richards does not know how many units followed the van on Fabens Road to Jess Harris Road.

287 – When Richards arrived at the scene, agents Compean, Yrigoyen, and Mendez were south of the Sierra Delta ditch on the levee. Richards did not recall Yrigoyen was there when he gave his statement. It’s possible Richards had a conversation with Yrigoyen but he doesn’t recall it. Richards does not believe he had a conversation with Mendez but he isn’t sure.

288 – Richards recalls a conversation with Compean in which he asked if Compean was okay and Compean said he was fine. Richards does not recall having that conversation with Yrigoyen.

288-289 – Richards has never requested authority for a hot pursuit and has never granted authority to an agent to do that. There may be situations where a hot pursuit is necessary but Richards would not have approved it in this case. In his 8 years as a supervisor, Richards can’t recall any requests that were made of him for a high-speed pursuit. He was unaware of this pursuit.

289 – In general, when agents hear a vehicle is headed south, it means it is headed home to Mexico.

289-290 – To initiate or engage in a high-speed chase, an agent must be in a marked BP sedan.

290-291 – Supervisors fill out SIRs, assault reports (based on an agent’s memorandum), and firearms discharge reports (based on an agent’s oral report). Supervisors are responsible for paperwork, which that day was Arnold, Richards, and their supervisors.

292 – Richards saw the van with its tires on the lip of the ditch but not in the ditch. Richards referred to pictures taken of the van that day, pictures that he took, which he admitted show the van with it’s tires just over the lip in the ditch.

292-294 – Richards used GOV EXH 9 to identify tire tracks behind the van at the scene. After seeing this, Richards did not ask how fast the van had been traveling that day. Richards can’t say the van was going fast just by looking at the tire tracks.

294 – Richards does not recall Yrigoyen telling him that the driver of the van threw dirt in Compean’s eyes. He would consider that an assault but he doesn’t recall talking to Yrigoyen. Had he known that, Richards would have filed an assault report.

294-295 – Richards doesn’t recall Jacquez telling him that that dirt was thrown in Compean’s eyes. He doesn’t believe that Jacquez told him that.

295 – Richards had a conversation with Ramos on the north side of the ditch. He did not see Ramos come over from the south side of the ditch. Ramos’ pants were wet from the knees down.

“Q. Is it your testimony that he didn’t tell you that the driver of the vehicle threw dirt in Agent Compean’s eyes?
A. He told me that Agent Compean attempted to grab the guy and moved side to side, and Agent Compean fell and got dirt in his eyes.
Q. Is it your testimony that Agent Ramos did not tell you that Agent — the driver of the van threw dirt in Agent Compean’s eyes?
A. Sir, I don’t remember his exact words to me.
Q. So it’s possible he told that; you don’t remember?
A. What he told me is what’s in my statement, what I just testified to.
Q. I’m asking you if he said the driver threw dirt in his — in Agent Compean’s eyes.
A. And what I said was, I’m not su- — I don’t recall his exact words to me that day.
Q. Certainly, then, in your statement, there’s no mention of anybody throwing dirt in anybody’s eyes, right?
A. In my statement, you will see where I made the statement that Agent Ramos had told me that Agent Compean fell and got dirt in his eyes.”

295-296 – [Compean’s counsel asked the witness to answer the question, and the government objected to counsel instructing the witness. The Court sustained the objection, ruling the witness had answered the question.]

297 – Richards’ statement contains what he recalls as the “gist” of his conversation with Ramos.

297 – The BP’s duty is to apprehend illegal aliens. It is also the primary drug interdiction agency on the border. When a drug seizure is made, the DEA takes over the investigation but the BP conducts a limited investigation.

297-298 – Being a BP agent is a dangerous job.

298-301 – [Compean’s counsel began a question regarding a prior shooting on the border in December 2004. Bench conference regarding whether a recent (Dec. 2004) shooting/incident was prohibited under a pending order in limine. Defense counsel contended he did not realize the limine motion was still in effect and/or that it covered this incident. Defense counsel sought to revisit the limine ruling and apologized to the Court and opposing counsel for raising it in front of the jury:]

“THE COURT: A limine motion requires you to approach the bench before you can go — so, guys, you need to do that, because it’s not fair to the counsel. If I grant a motion in limine, you’re supposed to approach the bench. Go ahead.
MR. ANTCLIFF: You’re right. And it’s not — and I apologize. I misunderstood what the subject of the motion in limine was regarding that. I thought, because we talked about the dangerousness, we were done with that one. Now, having spoken — and I apologize to counsel, as well.
MR. GONZALEZ: That’s not the only one you (indiscernible) drugs that were in the van.”

301-302 – [The Court had previously ruled evidence of shootings inadmissible, but it will allow a voir dire of Richards to determine the facts in this incident and whether it might be admissible to show the dangerousness of the border and the state of mind of these agents.]

302-303 – [The government objected to the fact that defense counsel had raised the amount of marijuana in the van in violation of the Court’s prior ruling on the motion in limine. The Court noted the objection and advised counsel to remember the matters subject to the limine orders.]

303 – [Jury dismissed for the evening.]

304 – [Compean’s counsel apologized for violating the motion in limine regarding the amount of drugs in the van. He thought the testimony of Aldrete-Davila opened that area up for questioning.]

304 – [Defense counsel requested permission to make a bill related to the potential admissibility of a prior shooting from December of 2004, which happened in the Fabens section.]

Argument regarding Bill of Exception (by Mary Stillinger:)

305-307 – [The Court previously granted a pretrial defense motion in limine regarding an incident from December 3rd, 2004, involving Fabens BP agents Richard Lujan and Manuel Fuentes who fired their firearms at people that were throwing rocks at them. The agents reported the discharge of their firearms and that they had been assaulted. The defense sought to exclude this incident to prevent the government from using it as an example of proper reporting. The defense now seeks to use this incident to impeach Richards regarding the procedures he testified to compared to what happened in the Lujan-Fuentes’ incident. Specifically, Richards testified the sector evidence team would locate all shell casings but they did not do that in the Fuentes’ case.]

307 – [The Court granted permission to make a Bill of Exception.]

Bill of Exception/Voir Dire Examination (by Mary Stillinger:)

307-308 – Richards is aware of shooting incident on Dec. 4, 2004, [corrected later to Dec. 3, 2004] involving Richard Lujan and Manny Fuentes. They discharged their weapons at other people in response to what they perceived as a threat.

308-309 – Richards did not call the sector evidence team in the Lujan-Fuentes incident. He is not aware of what they did at the scene because he was not there. He read the sector evidence team report. He assumes they did locate the shell casings as he believes should be done, but he can’t say for sure what they did. The short answer is Richards can’t say for sure if they did or did not look for shell casings.

309-310 – Richards testimony regarding what the sector evidence team does is based on what they should do, not necessarily what they actually do. Richards has a general working knowledge of what they do, but doesn’t know what their policies are of what they’re supposed to be doing.

310-311 – Richards reviewed a report of assault in the Lujan-Fuentes incident, and he assumes a SIR was filed but he doesn’t recall whether he saw it. He assumes it was done since they were assaulted.

311 – Richards believes the Lujan-Fuentes’ incident happened north of the levee and the Sierra Delta ditch on the west end of the Fabens district. Richards believes that one and possibly both of the agents were struck by rocks but he doesn’t believe they were injured.

312-313 – Richards has never been to a shooting review committee meeting but he believes they occur at the headquarters level. It’s in the firearms policy. He does not know if the shooting review committee investigated the Lujan-Fuentes’ incident.

313 – Richards reviewed the assault report and forwarded it up the chain. He doesn’t know what happened after that. He does not know if there was an investigation to determine if the shooting was justified.

313-314 – Richards’ testimony that he gave when Ms. Kanof was asking questions, about all the things that happen was based on his understanding of what should happen, not his understanding or knowledge of whether it actually happens.

314-316 – Richards reviewed an I-44 dated Dec 3, 2004, regarding the Fuente’s incident and in which marijuana was seized. The I-44 does not mention the assault and shooting, but Richards does not think that was a policy violation or a crime to leave that information out.

316 – [Conclusion of Voir Dire.]

315-318 – The Court considered whether the voir dire testimony was admissible. Mary Stillinger argued that the Government had made an issue of the fact that the I-44 prepared by Agent Compean only included the marijuana seizure information and didn’t include the assault and firearm discharge, claiming it should have been included. However, in the Lujan-Fuentes’ incident, the same information wasn’t included and “it didn’t seem to be any big deal.” Stillinger also argued:

“… this witness has testified about — on direct to Ms. Kanof — about this is what happens after a shooting. There’s a shooting review committee. There’s a Border — sector evidence team. These things all happen. And in an incident that happened two and a half months prior, he doesn’t know whether those things happened or not. And it certainly goes to the quality of his knowledge of these procedures. The reason his testimony about these procedures is so important is because the obstruction of justice counts talk about how, because they didn’t report it, all these things weren’t done that should have been done. Well, they weren’t done in this case.”

320 – The Court ruled that the defense could ask whether Richards knows what the various investigators do or if he knows what they should do, but could not otherwise go into the Dec. 2004 incident based on the foregoing.

320-323 – Chris Antcliff for Defendant Compean argued the Lujan-Fuentes’ incident was relevant because the test of how an agent acts is based on the totality of the circumstances. The Lujan-Fuentes’ incident, having occurred 60-75-90 days prior, directly influenced Compean’s state of mind. The testimony has shown the border is dangerous and this was a common drug and alien smuggling area. The Lujan-Fuentes’ case bears on the totality of the circumstances and state of mind “when someone leans back and points at him” because Compean was present at that incident and saw the 2 officers assaulted and shots fired. Counsel wants to ask Richards about this because he was the supervisor when the Lujan-Fuentes’ incident occurred.

323-325 – Debra Kanof’s response:

“They’re wrong. The casings were reviewed, and we have photographs of the casings from the 2004 incident. Let me tell the Court how the defense got this documentation. I made a mistake. I’ve never given rebuttal evidence to a defense attorney before, and after this incident, I never will again.

We gave them some reports from a 2004 shooting, thinking that Manny Fuentes might testify in rebuttal, because Compean was not there when the rocks were thrown, was not there when there was a shooting. He responded afterwards, like a lot of these other agents responded afterwards.

Let me correct the record. Number one, it did not happen on December 4th, it happened on December 3rd. Number two, it happened at night. Because, in December, it gets dark, I think the Judge can take judicial notice, about 5:30 or 6:00. This happened at 7:20 to 7:30 at night. We didn’t give them everything about this report. What we basically gave them was the transcripts of Manny Fuentes’ testimony that was taken for the shooting investigation, and documents that were attached to it. We didn’t give them the photographs of the evidence response team. Special Agent Sanchez tells me we have photographs that were taken of the casings, and the casings were seized, so they’re wrong. And, in this case, this is not relevant, because there were five individuals that were throwing rocks. The agents were hit by the rocks. Their cars were hit. One agent shot once. The other agent shot three times. Nobody was hit by the shots. And — but what’s really different from the case at bar is, it was reported. It was reported absolutely immediately. Every rule was followed. It was reported within an hour. People responded. The evidence response team responded. And I will represent to the Court, based on what Agent Sanchez has represented to me, they did look for the casings. So if the whole idea is to try to cross-examine someone who wasn’t even there as to whether the evidence response team looked for the casings, whether the evidence response team did their job, which it appears that that’s what they really want it for, then, first of all, I think they’re getting into a trap, because the casings were photographed and seized. And, secondly — and measurements taken. And, secondly, this agent wouldn’t be the person to talk to about it.”

326 – The government stated that they could recall no testimony that the I-44 should include information about an assault or shooting.

326-327 – [The Court admitted the Lujan-Fuentes’ I-44 as Bill Ramos EXH 1.]

327 – The Court ruled that the prior motions in limine stand. The parties may not raise the Lujan-Fuentes’ issue or the amount of marijuana involved in this case without first approaching the bench.]

328 – [Court in recess.]

From Transcript XI:

Witness #12 – Jonathan Richards (continued):

Compean cross-examination (by Chris Antcliff):

2-4 – [The Court admitted without objection the Government’s Ramos Bill EXH 1 – 9 pages of photos of shell casings taken in the Lujan-Fuentes’ incident.]

5 – [Jury present.]

5-6 – At some point, Richards heard on his car radio that the van had headed back south and was located near Jess Harris and he headed to that area.

7 – The BP policy says that a pursuit begins when somebody lights up another vehicle, turns on their emergency lights, and the vehicle that they want to stop fails to stop. Richards isn’t sure he agrees that this is when a pursuit begins, but that is what the policy says.

7 – Richards doesn’t know if anyone turned on their emergency lights that day or if there were any radio calls that emergency lights were turned on. Richards doesn’t recall if anyone had their emergency lights on when Richards arrived at the scene. Richards doesn’t believe he turned on his emergency lights.

8 – Richards believes that a BP unit should investigate when a sensor is activated and a vehicle leaves the area at a high rate of speed. That may require the BP unit to follow a vehicle.

8-9 – Richards asked Arnold to go to the scene but Richards got there before Arnold.

9-10 – Richards first talked to Compean at the scene and asked him if he was okay and he said he was. Compean did not describe the fleeing suspect, nor did the other agents.

10-11 – Richards and Compean had a discussion in the processing room at the Fabens station, as Compean sat at the computer. They did not go into an office. Others were present, possibly Ramos, Mendoza, and Arnold, and they could have heard the conversation. Richards asked Compean if the driver had struck him and if he [Compean] was okay. Compean said he slipped and fell in the ditch and that’s when he got dirt in his eyes. It’s possible Compean gave Richards a description of the driver but he doesn’t recall.

11-12 – Richards never saw the shotgun on the ground at the scene. His attention was focused on the north side of the Sierra Delta ditch. Richards believes he stood behind the van to discuss the lack of radio calls and he may have congratulated them. He believes all the agents on the north side were present and heard him. That’s when Ramos told Richards that a white vehicle had picked up the driver.

12-13 – Richards asked the agents what happened. Ramos answered. Ramos and Yrigoyen were the most senior agents at the location, but only Ramos was on the north side.

13-14 – In February 2005, Richards was responsible for 3 shifts and all agents. Richards does not recall but he believes there were 9 agents and 1 supervisor on duty that day. Each agent had his or her own vehicle except the trainee, Rene Mendez.

14-15 – [The Court sustained an objection to defense counsel’s question regarding whether the government could afford to have 2 agents in each vehicle.]

15 – Richards agreed it would be safer to have 2 agents in each BP vehicle.

15-17 – During the 3 years Richards has been at Fabens, 1 person has filled out a vehicle pursuit report. Richards assisted in preparing the report with another supervisor. It was a low-speed, low-risk pursuit [like OJ – Objection sustained/withdrawn]

17 – Richards never reprimanded an agent for following a suspected load vehicle.

17 – If Richards was aware of a pursuit and did not fill out a report, it would look bad for him as a supervisor.

Government redirect examination (by Debra Kanof):

17-18 – Richards is not aware of any pursuits where he failed to fill out documentation.

18 – Richards heard Compean call out that a van was traveling at a high rate of speed and Richards knew the agents were “attempting to catch up to him.” Richards did not know the agents were exceeding the speed limit.

18-19 – Agents are authorized to make a routine vehicle stop without permission. If the agent activates his emergency lights and the vehicle pulls over, no permission or report is required although the agent does have to notify sector communications – for safety purposes and for documentation.

19-20 – If an agent radios he is “lighting it up” and then a minute or so later says he’s turning them off, that indicates the vehicle did not stop. The agent would turn his lights off because the BP doesn’t pursue vehicles. Agents know they have to request permission to pursue.

20 – A routine vehicle stop requires agents to follow traffic laws and procedures.

20-21 – The next level is a low-risk, low-speed vehicle pursuit where the suspect vehicle and the BP vehicle are obeying all traffic laws. An agent does not need permission to do this. The BP vehicle lights should be on. Sector communications should be notified on the repeater channel.

21-22 – Richards assisted supervisory agent Buck in preparing a low-risk, low-speed pursuit report because he was very busy. Based on the report, Richards believes the agent involved in that incident was Jose Gutierrez and that Gutierrez notified sector communications on the repeater channel of the pursuit.

22 – A report has to be filed for any pursuit – low speed or high speed.

22-23 – To conduct a high-speed pursuit, the agent has “to know what the subject is wanted for. They have to notify communications. And they also have to evaluate whether or not it would be advantageous to chase after the subject, if you would, versus the possible detriment that the public or the agents and the subject could be placed in by having the pursuit.”

23 – Under the pursuit policy, the suspect must be a “fleeing felon.” It’s not enough to know that a van was traveling fast from area 76. You need prior knowledge of the driver or what’s in the van.

24 – Under the pursuit policy, the benefits of chasing the fleeing felon have to outweigh the danger to the public.

24 – Under the pursuit policy, the agent must notify sector communications on the repeater channel, just like in a low-speed pursuit.

24-25 – To get permission to pursue, the agent must provide “articulable facts” on the repeater channel such as what the suspect is wanted for, his direction of travel, license plate number, type of vehicle, roadway conditions, weather conditions, traffic conditions in the area.

25 – Richards did not see a license plate callout on the transcript of the repeater recording. There is a license plate callout after the van was secured.

26 – The agent is required to give a description of the driver/occupants, provide information about threats such as firearms, and whether other agencies are involved.

26-27 – If a supervisor authorizes a pursuit, the supervisor would assign a backup unit. Other units on the scene have no responsibility until it is assigned by the supervisor.

27 – If a supervisor is not listening, the agent must contact one or terminate the pursuit.

27-28 – An agent can start a pursuit and then contact a supervisor. The duration that pursuit would be allowed depends on the circumstances. The agents in this case were not allowed to exceed the speed limit without permission.

29 – Whether something is a good shoot is determined based on the facts surrounding the shooting. If it’s a good shoot, the agent goes back to work. Richards doesn’t know what happens in a bad shoot, because he’s never been involved in an unjustified shooting.

30 – In the processing room, neither Ramos nor Compean gave Richards any articulable facts to justify the use of deadly force.

31 – Richards doesn’t recall when he learned Ramos and Compean were arrested. He believes they were arrested on Friday, March 18, and he learned of it on Monday, March 21. Richards first learned why they were arrested from C. Sanchez on March 22, 2005.

31-32 – Law enforcement is dangerous work. Agents spend 6 months at academy learning to handle a gun and defensive tactics – use of force below deadly force.

32 – [The Court sustained defense counsel’s objection to a question regarding whether agents could quit the force if they find they don’t want to do a dangerous job.]

32-33 – BP vehicle emergency buttons are generally tripped accidentally. It’s a red button on the radio and is used by agents in distress who need assistance. It happens accidentally a lot.

33-34 – Richards believes February 17, 2005, was a “normal Spring day. It was clear, as I recall.” After reviewing GOV EXHS 9 and 10 to refresh his recollection, Richards stated it was a hazy, cloudy day. He didn’t recall if it was windy. Wind could interfere with local radio communication.

34 – [The Court sustained an objection to a question regarding whether the presence of an 18-wheeler could interfere with local radio communications.]

34-35 – Objects between BP vehicles might interfere with local communications.

35-36 – BP agents must use marked sedans for pursuit. “Drop-in” units are heavy and bulky – “an extended cab pickup truck that they have manufactured alien transport compartments and mounted them in the bed of the truck.” The purpose is to detail aliens for transport.

36 – The BP drop-in units and SUVs [Tahoes] are not as safe as the sedans because they don’t corner as well.

36-37 – Richards did not discourage Compean from filing an assault report. He questioned him to find out if he had been assaulted. Compean did not tell Richards in the processing room that he was afraid the van would jump the ditch and run into him. Compean did not tell Richards he was in fear from the suspect.

37 – Richards believes his tone of voice was inquisitive, not discouraging.

37 – Compean never said that dirt had been thrown or kicked into his eyes.

37-38 – Richards did not know a shotgun had been used in this incident and no one drew his attention to the shotgun on the ground.

Ramos recross-examination (by Stephen G. Peters:)

38-39 – Richards identified p 6.C. and p 7.A. as the sections of the pursuit policy that says a high-speed pursuit can only be initiated when the agent knows a felony has been committed:

“If you look on page 6, letter C, high-speed/high-risk vehicle pursuits. And then continue over to the next page, page 7, letter A. Suspect exhibits the intention to avoid arrest by using a vehicle and excessive speed or committing hazardous moving violations to flee apprehension for a felony or misdemeanor that would normally require a full custody arrest.”

39 – Richards agreed that the suspect did exhibit the intention to avoid arrest by using a vehicle and excessive speed.

39-40 – Richards relied on p 7, letter C, for authority that sector communications must be notified of a pursuit on the repeater channel: “Communications personnel are notified by the agent who initiates the pursuit.” Richards stated that “communications personnel” means sector communications on the repeater, not local channel personnel.

40 – Richards is “not of the opinion that when a vehicle fails to yield and the agent does not pursue that that’s a pursuit.” The policy says this but the high-risk, high-speed pursuit rules add other criteria. Richards thinks it’s “an interpretation.”

41-42 – Under the policy, anytime someone tries to pull over a vehicle and they don’t stop, it qualifies as a pursuit. The policy requires supervisors and primary agents to file reports of pursuits. Supervisors will ensure agents file the reports.

42-43 – Richards disagrees with the interpretation that this was a pursuit.

44 – The disadvantages of the repeater or Rimrock channel occur where the area covered is large and there is conflicting traffic that drowns out other traffic, or if there are dead areas. It does not take longer to engage the repeater channel.

44-45 – It’s normal for agents to use the local channel for non-emergency traffic.

45-46 – An agent initiates pursuit and asks for permission at the same time, because it doesn’t make sense to pull over and let the suspect get away while the agent asks for permission. The decision to pursue relies on the good sense and judgment of the agent. Once the agent provides the information to the supervisor, the supervisor can say stop or go. The agent can continue until told to stop.

46 – According to Richards’ interpretation, no one told Ramos to stop because he never asked permission to pursue. Richards would not characterize whether Ramos “eyeballed” the vehicle as an indication of a pursuit, even if other agents did.

47-48 – Had Richards heard all the traffic, he may have thought Ramos was pursuing the van. It’s possible he didn’t hear all the traffic.

48-49 – Richards did not speak with C. Sanchez before March 22, 2005, except to schedule the appointment. Compean was arrested before that date, around March 18.

49 – A high-speed pursuit endangers the agent, the occupants of the fleeing vehicle and the traveling public, if there is any.

Compean recross-examination (by Chris Antcliff:)

49 – Richards is not in a policy-making role at the BP.

49 – The Fabens station has 2 marked sedans and total vehicles of 50.

49-51 – On February 17, 2005, Richards got information from the radio, from Ramos at the scene, and from Compean in the processing room. Richards asked no questions about the agents following the van and no questions about the foot chase of the driver – it was explained to him so he didn’t have to. As a follow-up, Richards asked Compean if he was assaulted, did anyone hit or strike you?

51 – Richards did not ask questions of Agents Juarez, Jacquez, Vasquez, Mendoza, or Yrigoyen, either at the scene or at the station.

Government redirect examination (by Debra Kanof):

51 – The BP pursuit policy is 14 pages, not including the 4 attachments.

52 – There are no local BP communications personnel, only sector communications personnel.

53-54 – There are no articulable facts on the repeater recording for this incident – no identification of the pursuing unit, no license plate, no direction of travel, no description of the driver or vehicle, no reason for the pursuit, and no description of the threat.

55 – It is a part of the policy to keep the fleeing suspect safe. The van did not end up in a safe position. If it was being chased really fast, it might end up in an unsafe position.

Compean recross-examination (by Chris Antcliff:)

56 – Richards was not aware of a pursuit on February 17, 2005, but now it appears there was.

56 – [Witness excused.]

120 Responses to “DRJ Pores Through the Border Patrol Trial Transcripts – Jonathan Richards (Volumes X and XI)”

  1. Great job on this!

    Justin Levine (759b56)

  2. Wow!!!1

    What a mistake to bring up the 2004 shooting wow!!! What was the defense thinking – were they trying to get their clients convicted on all counts?

    Jerri Lynn – what do you think

    Just as a personal note IMO the Border Patrol is a limited duty unitmuch like the port authority – they have a very defined security mission and they are not a full law enforcement agency like the CHIP or the Texas Rangers.

    this is just my opinion but this is why many citizens and legislators are under at set of ssumptions that don’t fit the case

    EricPWJohnson (405d78)

  3. I agree that the 2004 shoot would have hurt, given the reporting. Was that a different station?

    As to the rest of his testimony, I’d like Michael Hunter’s take on this. I still think that it’s signficant that he didn’t fill out the pursuit form.

    I agree that his testimony does not look good for Compean.

    Jerri Lynn Ward (9f83e6)

  4. If Richards was so concerned about not hearing chatter, why didn’t he tell the agents to switch their radios to “repeater”?

    Q. Your secondary mission is terrorism. We’ll skip over that.

    That’s a convenient thing for the Bush Team to “skip over”. The van could have had explosives, wmds or terrorists but of course in hindsight we know that it didn’t.

    Richards believes that going 65 mph on Jess Harris to make an immigration stop would be excessive. Richards would expect an agent to ask permission to pursue and, if requested, Richards would have said “absolutely not.’

    Hear that, drug smugglers? Just keep the speedometer at 66 and you’ll have nothing to worry about around Fabens.

    To engage in a hot pursuit, the agent has to know the person is committing a felony. A van driving at a high rate of speed doesn’t mean the driver has committed a felony.

    The very action is a felony, unless Bush’s justice department is telling us that it is legal to flee from federal officers while trying to escape to another country.

    269-270 – On February 17, 2005, Richards heard a call from Compean that a van was leaving area 76 at a high rate of speed. Area 76 is commonly used for illegal alien traffic.

    It’s funny that Compean would use the repeater to call this in, where it would be recorded, since he was out to “shoot some Mexicans” on that day. He was leaving a lot of clues behind that could link him to the evil deed.

    Richards heard Compean call out that a van was traveling at a high rate of speed and Richards knew the agents were “attempting to catch up to him.” Richards did not know the agents were exceeding the speed limit.

    Absurd. Defies logic.

    Richards did not know a shotgun had been used in this incident and no one drew his attention to the shotgun on the ground.

    A convenient non-observation of the elephant in the kitchen. He’d have a hard time explaining why he didn’t file a report if he admitted to seeing that.

    J Curtis (d21251)

  5. I don’t know the law in Texas – and I don’t have time to look it up until later – but here in California one of the elements of felony evading is that the driver is fleeing from a law enforcement vehicle that is lit up. It would be interesting to know the Texas law and I bring it up because Vasquez testified that Ramos had him turn off his lights and that Ramos never turned his on.

    Tracy (4b4242)

  6. Okay, I have to admit that I just wasted 20 minutes I can’t really spare looking for the Texas jury instructions on evading. It appears that the instructions are not available anywhere online. So if there’s someone who’s got them at their fingertips…

    Not that this is particularly relevant. Whether the elements are met or not, I think the jury is left with the impression that there WAS a felony evading going on – something favorable to the defendants, yet they still found them guilty.

    Tracy (4b4242)

  7. 6

    Regardless of the impression the jury took, it is Bush’s justice department’s contention that it is okay — not illegal — for Americans to flee from federal agents in hot pursuit while attempting to escape from the US.

    J Curtis (d21251)

  8. Only the FBI can investigate civil rights violations.

    Of course! Civil rights for foreign drug smugglers.

    I think I know where that cell phone is. It’s in the same place where the kept Zacarias Moussaoui’s laptop computer.

    They would have to get authorization for a search from, I don’t know, Johnny Sutton? Alberto Gonzalez? The very same people who have an interest in the information being kept hidden?

    If it wasn’t their call, I’m sure they could find a judge who would forbid the search. That would be easy.

    J Curtis (d21251)

  9. Tracy,

    I look for something about felony evasion but I had the opposite impression from you: I think the jury might well have believed no felony occurred.

    BTW I thought Peters’ cross of Richards was well done, especially at pp 251-260. Unfortunately, I’m not sure the jury heard this testimony since shortly after that exchange the bailiff noted the jurors could not hear and microphone adjustments were made. Up to this point in the trial, it seems the defense had no luck or bad luck.

    DRJ (605076)

  10. Texas Penal Code 38.04 on evading arrest or detention:

    (a) A person commits an offense if he intentionally flees from a person he knows is a peace officer attempting lawfully to arrest or detain him.

    (b) An offense under this section is a Class B misdemeanor, except that the offense is:

    (1) a Class A misdemeanor if the actor uses a vehicle while the actor is in flight and the actor has not been previously convicted under this section;

    (2) a state jail felony if the actor uses a vehicle while the actor is in flight and the actor has been previously convicted under this section;

    (3) a felony of the third degree if another suffers serious bodily injury as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight; or

    (4) a felony of the second degree if another suffers death as a direct result of an attempt by the officer from whom the actor is fleeing to apprehend the actor while the actor is in flight.

    DRJ (605076)

  11. The traffic here seems to have lost steam. I’ll have some comments later after I finish reading through the summary.

    wls (077d0d)

  12. Apart from this case, it concerns me greatly that Richards testified he would not authorize a hot pursuit – even if a known felon escaped from his custody. (Vol X pp 204-205.) He also testified that he never requested or authorized a hot pursuit in his 17 years as an agent/supervisor in the porous and dangerous El Paso border area.

    If Richards is a representative Border Patrol officer, and I have to assume he is, then the Border Patrol is not a law enforcement agency in any real or practical way.

    DRJ (605076)

  13. DRJ

    They never were – they are to call in local PD – there is no federal police force.

    Part of this policy is when two BP’s in 2001 I think responded to a local murder suspect call and joined local LEO and they were both tragically killed and this had happened before in the late 90’s you can go to the official website it has the details

    Again, there is no federal police, the Customs agents in boston (really BP’s with a modified mission) do not respond to rapes, murders and robberies across the waterfront (100 yards away) and its been that way for years, if they see the act in progress they will react but they will not respond to calls over the police network for assistance without clearance.

    the border patrol is not a law enforcement agency they are a force to guard against unlawful entry only.

    this has been the problem with the publics perception with this case from the beginning (My Opinion)

    EricPWJohnson (405d78)

  14. Eric,

    I didn’t say the Border Patrol is a federal police force, I said it is law enforcement. Apparently the Border Patrol thinks it is, too:

    While the Border Patrol has changed dramatically since its inception over 75 years ago, its primary mission remains unchanged: to detect and prevent the illegal entry of aliens into the United States. Together with other law enforcement officers, the Border Patrol helps maintain borders that work – facilitating the flow of legal immigration and goods while preventing the illegal trafficking of people and contraband.

    DRJ (605076)

  15. Yes, it’s the public’s perception problem that the BP actually defends the border. They aren’t actually enforcing any laws like the ones against illegal entry so hence they aren’t a law enforcement agency. Thanks for the definition. Are you retarded?

    Also, it would be interesting to tell the federal police at the federal courthouse that they don’t exist.

    I think its grand that Johnny “prosecutor of cops” Sutton only prosecuted these agents at the request of the mexican government. Why isn’t that in any court transcripts?

    petit bourgeois (69e150)

  16. With regard to Richards’ testimony in this case, I thought he was a mediocre witness. He required leading questions to get his story out and, although I don’t know what his demeanor was, he sometimes sounded annoyed when challenged. It left me with the idea he’s basically a bureaucrat, and it didn’t help that he was virtually unable to decipher the rules he seemed to think were clearly violated in this case.

    Ultimately, Richards was reduced to arguing his interpretation of the Border Patrol policies – as if agents could “agree to disagree” regarding what the policies were. (Vol XI pp 40-46.) Border Patrol policies shouldn’t be as difficult to understand as complex Supreme Court decisions. How can the average agent possibly understand and comply with that?

    However, I also suspect Richards came across as a decent guy. Thus, it’s possible the jury was willing to trust his judgment that something wrong happened here even if his words and reasoning didn’t bear that out.

    DRJ (605076)

  17. “Lou Dobbs Tonight — CNN — February 28

    Wian: …The once-secret document shows Sutton’s office was told by the DEA that Oscar Aldrete-Davila was implicated in a second drug smuggling incident while he was under immunity but before the agents’ trial. The evidence that Aldrete-Davila was a serial drug smuggler was kept from the jury that convicted Ramos and Compean.

    Rohrabacher: Evidence now emerging suggests that Sutton’s office was notified by the DEA of Davila’s direct involvement of a second offense. Sutton chose to disregard the information, despite the evidence provided by the DEA.

    Wian: Rohrabacher even accused Sutton of lying by misleading jurors and the public about Aldrete-Davila’s drug smuggling history.”

    I like how some on this site are defending the government’s actions, when there clearly is a kangaroo court being conducted on a federal bench. It’s amazing to me just how Orwellian and effective the propaganda machine operates.

    The prosecutor/purveyor of this site is noticeably absent from the discourse in light of the facts– but we know which side Mr. Frey is on.

    petit bourgeois (69e150)

  18. …it didn’t help that he was virtually unable to decipher the rules he seemed to think were clearly violated in this case.

    To be fair… A fourteen-friggin’-page pursuit policy, with four pages of attachments?! Good-friggin’-grief.

    DRJ – as for your question about the evading, I thought one of the defense counsel got that out of an agent at some point in the trial, but I could easily be wrong. I may be attributing something to the TX that I’ve actually read elswhere. Even in these comments, perhaps. And, regardless, it appears from the code section you posted that it’s a misdo anyway. I’d still love to see the jury instruction, just out of law-nerd curiosity.

    Petit Bourgeois – Nous ne sommes pas retardés. Aucun de nous.

    Tracy (4b4242)

  19. PB,

    Why do you think Patterico asked me to assist him with this review of the transcript? I think it’s because he wants to know if the US Attorney has been forthright in his statements about this case, and he’s willing to give me a forum to look into that. I’m a West Texan. Johnny Sutton is my US Attorney and I want to know what’s going on with this prosecutor. As a result, I’ve devoted a lot of time that I don’t have to reviewing the actions of his office in this case.

    Patterico has never told me what to say or think about this case and, as I’ve mentioned before, if anything I have a bias for law enforcement and Patterico knows that. Thus, I think you are wrong if you believe Patterico will support any prosecutor no matter what. (Don’t even get him started on Mike Nifong.)

    DRJ (605076)

  20. 16

    The agents weren’t convicted because they violated the pursuit policy, they were convicted because they violated the requirement to report shooting people. This requirement does not seem all that hard to understand and comply with.

    James B. Shearer (fc887e)

  21. Tracy,

    I think the policy is somewhat confusing and it surprised me even more when Richards’ testimony revealed the policy has 14 pages and 4 attachments. I thought that made Richards’ insistence that this policy is crystal clear look even more bureaucratic.

    As for evading, I thought that was your question. Duh! I must be confused but, in any event, I agree there is testimony that the driver committed a felony. Juarez testified he had reasonable suspicion the van had committed a felony offense (Vol VIII, pp 57-58) but he took it back on redirect (Vol IX, p 8 ). So much of the government’s case consisted of agents who say one thing on direct and undercut it on cross, but the defense didn’t seem to get any mileage out of the inconsistencies.

    I think it helped the government that the prosecutors were firm in following up and compelling the agents to “toe the line” on redirect. Most juries I’ve seen would catch onto this and wonder if they are hearing the witness’s story or the attorney’s. It’s hard to know what the jury was thinking at this point in the testimony but we know what they ultimately decided.

    DRJ (605076)

  22. Wian: …The once-secret document shows Sutton’s office was told by the DEA that Oscar Aldrete-Davila was implicated in a second drug smuggling incident while he was under immunity but before the agents’ trial. The evidence that Aldrete-Davila was a serial drug smuggler was kept from the jury that convicted Ramos and Compean.

    Rohrabacher: Evidence now emerging suggests that Sutton’s office was notified by the DEA of Davila’s direct involvement of a second offense. Sutton chose to disregard the information, despite the evidence provided by the DEA.

    Wian: Rohrabacher even accused Sutton of lying by misleading jurors and the public about Aldrete-Davila’s drug smuggling history.”

    If and when the sealed portions of the TX are made public, I think we’ll find that part of C. Sanchez’s testimony will be about this investigation.

    “Implicated” certainly does not mean “convicted” or even “charged” or – going even further down the list of possibilities – “arrested”. “Implicated” in this case means only that a snitch pointed a finger. What they had on Aldrete was snitch statements – that’s it. No fingerprints. No additional witnesses. No bloody glove. Nothing. That is far from enough to get a conviction or even an indictment. If DEA or whoever thought that gave them probable cause to arrest Aldrete – they didn’t need to ask Sutton’s permission, for goodness sakes. Nothing stopped them but their own education, training and experience that the words of a snitch aren’t sufficient basis for any of the above.

    Talk about the propaganda machine!

    Going back to my original train of thought, I think we’ll eventually find that in the sealed portion of the TX, one of the things that happened was that the judge reaffirmed her decision not to allow the evidence based on lack of probative value and the justifiable reluctance to interfere with an investigation that was represented to be ongoing.

    Someone on Rohrabacher’s staff needs to reel him in and get him straight on the facts and the law. He is fast becoming the Jim Traficant of the Republican Party. Rohrabacher’s campaign on behalf of Compean and Ramos is reminicient [although on a different level, in my mind] of Traficant’s championing of Demjanjuk.

    Tracy (4b4242)

  23. James B,

    I assume the agents were convicted because the jury felt they lied about what happened and covered it up by not reporting it. That is similar to but not exactly the same as convicting them for failing to report, which by itself is not an offense for which a person can be jailed. However, if the rules regarding pursuits and reports were unclear and/or not regularly enforced, the agents might have an excuse or explanation for their failure to report. I think that’s part of why this issue and testimony are relevant.

    DRJ (605076)

  24. Tracy,

    I agree that the Court probably knew about the second Aldrete-Davila incident and that’s probably what’s under seal in the transcript. It does make me wonder, however, why the government would continue to prosecute this case so vigorously without knowing more about its star witness’s extracurricular activities.

    DRJ (605076)

  25. As for evading, I thought that was your question. Duh! I must be confused…

    You’re not confused! That was my question. Thanks. That code section helped a lot.

    Great work on this section.

    Overall, although Jerri Lynn hasn’t said much yet – I’d like to add to her comment to say that I think Richard’s testimony was more damning to Ramos than to Compean, even. After reading that Ramos was a BP firearms trainer, that as part of that he taught other agents on a quarterly basis [I think] about the reporting requirements and that he was part of the SET team – it makes it very clear that Ramos’ failure to report could only be deliberate. As a firearms trainer and a member of the SET team, he was far to fluent in procedure to have simply been remiss or forgetful. It goes without saying that with that kind of professional background, willfully failing to report the shooting is evidence that he knew it wasn’t a good shoot.

    I’ll always wonder, though, if he sacrificed his career and freedom to cover Compean’s ass. Had he just said, that day, “I thought I heard mutual gunfire and I ran over the levee and shot to save Compean,” I think Compean would be the only one on trial. If that.

    Tracy (4b4242)

  26. Tracy #25,

    I agree completely. In fact, I agree so much I wish I’d said it.

    DRJ (605076)

  27. It does make me wonder, however, why the government would continue to prosecute this case so vigorously without knowing more about its star witness’s extracurricular activities.

    Why?

    Does it absolve Ramos and Compean in any way even if Aldrete was a repeat offender?

    We don’t allow law enforcement to be judge and jury in this country. We don’t allow them to use deadly force on fleeing felons. In the Garner case, the kid shot was caught red-handed in the middle of a residential burglary.

    How is this effective even for impeachment? Even if he could be forced to answer after asserting the 5th, had Aldrete said, “Yes, I smuggled again in October,” what does that achieve?

    Many kinds of prior convictions can come in to impeach, but uncharged conduct is a finer line.

    If someone here says in response to this that it is probative to show that it’s more likely Aldrete had a gun – first, that’s so speculative I’d wish them good luck getting that into evidence, and second, I’d ask whether the defense REALLY wants to open the door to rebuttal testimony on that which would show that none [or almost none, I can’t remember exactly] of the pot smugglers busted in the last five years or so had weapons on them.

    Someone might also say that smugglers are more likely to be liars. Well, the jury didn’t think Aldrete was delivering Girl Scout Cookies when the convicted Ramos and Compean. I actually don’t think Aldrete was the government’s “star witness”. As I read the TX, this case didn’t really have one. These guys were convicted on the cumulative testimony of their fellow agents and Aldrete. Their own implausible and contradictory testimony was icing on the cake.
    It’s not a defense. Even IF it were proper impeachment, it’s not effective. So why?

    Tracy (4b4242)

  28. The traffic here seems to have lost steam. I’ll have some comments later after I finish reading through the summary.

    I wonder if that’s an attention span thing exacerbated by this site’s sever meltdown yesterday.

    I know I’d like to hear from Jerri Lynn, Dave, LC and others who I respect but am just failing to bring to mind at this late hour during the work week.

    Tracy (4b4242)

  29. Tracy,

    First, I thought the government would want to know more about their witness’s activities to avoid an unpleasant trial surprise – for the prosecution. Second, I thought the government might be a tad concerned that its star witness could be a repeat felon and a liar. Third, I wonder how the information affected the prosecutor’s ethical obligations in offering Aldrete-Davila as a witness.

    It’s been a long time since my law school ethics’ class but I recall you can’t let a witness perjure himself on the stand or put him in a position to perjure himself, and I remember Aldrete-Davila’s testimony that he didn’t know much about drugs or how they were packaged. (Vol VII pp 164-165) I think that’s troublesome testimony if you know or suspect your witness is a 2-time offender.

    DRJ (0c4ef8)

  30. Hi, Tracy and DRJ.

    I just don’t think we know enough about the October 2005 incident to call it a second offense.
    And if it is, so what? We all know Aldrete-
    Davila isn’t a stellar citizen, and the jury knew that, too.

    Certainly, the defense had a right to impeach him in questioning him about his drug activities. But the main question in this case is, did two Border Patrol agents shoot at a fleeing suspect who was unarmed? The pursuit or non-pursuit by BP agents, the October 2005 incident, they were just sideshows.

    I certainly wouldn’t view it as an ethical lapse by the prosecution to present him as witness. Every prosecutor, especially those whose jurisdictions cover urban areas, have to deal with “victims” who may be less than sympathetic figures.

    lc (1401be)

  31. And I think the traffic will pick up this weekend. This week, I actually had to do some work. Do you believe the nerve of some people? Just because they pay me, they think they own me.

    lc (1401be)

  32. I could not follow the hypothetical cross-examination of Richards starting around p250, nor the hair-splitting concerning the definition of pursuit.

    Moreover, Ramos and other agents testified that they understood the policy the same way as Richards, I believe. Since they were not on trial for pursuing, I don’t see that this line of questioning was particularly relevant.

    As for letting suspects flee back to Mexico, I think as a practical matter it makes sense. We cannot incarcerate every Mexican who crosses the border illegally. If someone suspected of illegal entry is apprehended, it undoubtedly requires a lot of man-hours to process the paperwork, guard them, and formally deport them – the agents doing that are not available to stop other illegal entries. If the suspect flees to Mexico on their own, it seems like the BP has accomplished their primary mission more efficiently.

    Lou Dobbs is an idiot, and I wouldn’t take anything I heard on his show seriously, like the recent “US, Canada and Mexico to Merge” report, for instance.

    LagunaDave (afe857)

  33. Certainly, the defense had a right to impeach him in questioning him about his drug activities. But the main question in this case is, did two Border Patrol agents shoot at a fleeing suspect who was unarmed?

    Comment by lc

    One side said he didn’t have a gun the other side said he had something in his hand, so it becomes a credibility contest.

    Not only does it strike at Davila’s credibility in regards to his amateur status as a criminal but it shows a criminal mindset of someone who is more apt to carry a weapon.

    How that information would affect you or me is irrelevant since we weren’t members of the jury.

    J Curtis (d21251)

  34. First, I thought the government would want to know more about their witness’s activities to avoid an unpleasant trial surprise – for the prosecution. Second, I thought the government might be a tad concerned that its star witness could be a repeat felon and a liar. Third, I wonder how the information affected the prosecutor’s ethical obligations in offering Aldrete-Davila as a witness.

    It’s been a long time since my law school ethics’ class but I recall you can’t let a witness perjure himself on the stand or put him in a position to perjure himself, and I remember Aldrete-Davila’s testimony that he didn’t know much about drugs or how they were packaged. (Vol VII pp 164-165) I think that’s troublesome testimony if you know or suspect your witness is a 2-time offender.

    1st: I think the government did know. Given that the defense had Cipriano Ortiz on their witness list, the defense knew, too.

    2nd: True, but balanced against the rest of the evidence, they had a case they had to put on. Again, I don’t think he was a “star witness”. He was the victim – but no matter how many crimes he may have committed, it doesn’t mean someone can shoot him in the back.

    3rd: I seriously doubt that they had anything more than the reports about Cipriano Ortiz’s statements. Since he was represented by his own attorney, the likelihood that Aldrete was questioned and talked is nil. And the likelihood that he’d testify about it at trial was even less. Does the fact that he may have made another run necessarily mean that he lied about being unarmed when he was shot? Because if they think he lied about that, then they do have an ethical duty to keep him from testifying.

    Even in the transcript, I could feel Aldrete’s evasiveness in just that part you referenced. If it came through in the transcript, you can bet it stunk up the courtroom, too. But in the end, the jury decided that Ramos and Compean’s BS smelled worse.

    Tracy (4b4242)

  35. One side said he didn’t have a gun the other side said he had something in his hand, so it becomes a credibility contest.

    Not only does it strike at Davila’s credibility in regards to his amateur status as a criminal but it shows a criminal mindset of someone who is more apt to carry a weapon.

    I agree that this IS an issue. But as I said in another comment, that’s a dangerous door for the defense to open. As we know from arguments on motions, the government had a rebuttal witness who could have come in and testified that NONE of the pot smugglers arrested in something like the previous five years had a gun on them. That kind of evidence would tanked the defense.

    Tracy (4b4242)

  36. I thought I could not get more frustrated with things in this country, GAWD I actually did not think I was so naive any longer.

    I’ll also ask how many pages of instructions and levels of permission does a BP agent need to take a piss?! GAWD forbid take a #2 while on duty.

    TC (b48fdd)

  37. Look, the pursuit policy is not that complicated, and the agents ALL understand it, regardless of how badly it might be written in the manual.

    The BP is not the Highway Patrol.

    High speed chases put a lot of people at risk.

    BP vehicles are not well suited for high speed chases.

    Why do you suppose that most State Hwy Patrol agencies have a fleet of cars like Camaros and Mustangs for Interstate Freeway patrol?? Because those cars handle well going fast.

    These same agencies do not maintain a fleet of SUVs of the kind most BP agents drive.

    Public/Officer safety is the overridding concern, and the BP POLICY is to not pursue fleeing subjects unless they have a REALLY GOOD reason to do so. The officers know this, though their “gung ho”ism tends to get the better of their judgment sometimes.

    wls (077d0d)

  38. High speed chases put a lot of people at risk.

    Comment by wls

    Drugs and weapons of mass destruction put a lot of people at risk. The BP is supposed to be the primary interceptor of these things.

    Did we create the Department of Homeland Security to punish law officers for going over the speed limit while pursuing vehicles that might contain WMDs?

    We hear all sorts of moaning about how “drastically underfunded” the DHS is, “security on the cheap” they cry, but they have money to burn on malicious prosectutions of border patrol agents.

    J Curtis (d21251)

  39. “Look, the pursuit policy is not that complicated, and the agents ALL understand it, regardless of how badly it might be written in the manual.”

    [Simple, wave at them.]

    “The BP is not the Highway Patrol.”

    [Seems to be beyond evident, the only thing in common is motor vehicles and guns.]

    “High speed chases put a lot of people at risk.”

    [Define high speed? They are running on dirt and farm roads, some seem to even get plowed up as well. They must be screamin!]

    “BP vehicles are not well suited for high speed chases.”

    [I wonder where NASCAR would be today had the cops NOT pursued the rumrunners? Or had to abide by a similar rule book as the BP has to?]

    Why do you suppose that most State Hwy Patrol agencies have a fleet of cars like Camaros and Mustangs for Interstate Freeway patrol?? Because those cars handle well going fast.”

    [Well Utah has probably 6 of these units statewide. Not what one could call a ready Fleet for high speed intercept on 1500 miles of interstate.]

    “These same agencies do not maintain a fleet of SUVs of the kind most BP agents drive.”

    [In Utah we have almost as many pickups and suv’s as we do sedans. Especially in the more rural parts of the state. Despite what you may think, these vehicles can be equipped in ways that the sedans aint got a chance freeway and especially when the pavement ends.]

    [Oh well the organization is aptly named, border “Patrol”, we would not desire for them to have any responsibilities for something like Border “Security”. Lets the FBI and HS do that.]

    TC (b48fdd)

  40. TC – I don’t fall into line with your opinions, I don’t think, but I have to admit – you are HILARIOUS. I love your sense of humor. Humor is a good way to make a point, often – you may be the one who gets me to change my position here.

    Tracy (4b4242)

  41. Tracy and DRJ,

    I don’t think that the transcript, ON ITS FACE, helps Ramos and Compean. I am still concerned with Richard’s failure to file an pursuit report and what that means concerning the conflating of policy into law.

    Insofar as high-speed chase, I don’t consider 60 mph as high speed. Also, I spend ALL my vacations in that area (near the Big Bend) and I rarely see traffic, so I question all the comments about the danger involved.

    Right now, I’m more interested in what law enforcement types say about policy versus law because I’m afraid that we lawyers are seeing words on a page and not reality in the field.

    Thus, in this post I am acknowledging that Tracy, Laguna Dave and wls are making successful arguments for the prosecution upon appeal. That said, I want to know more.

    Jerri Lynn Ward (9f83e6)

  42. Jerri Lynn,

    I see several layers to this case, too, and I’m interested in those layers. There’s not much I can contribute to the basic case, other than the satisfaction I get from carefully reviewing the transcript to help me understand the facts, but my review isn’t going to find some earth-shaking issue that everyone else missed.

    As a West Texan, I’m interested in understanding the motives of the US Attorney for my area and come to grips with why there have been so many prosecutions of law enforcement personnel. Is there some flaw in the Border Patrol policies that leaves the agents uncertain of their duties? Is there a breakdown in supervision? Is it more media scrutiny because the immigration issues are hot right now? Or has the US Attorney brought a new perspective to his role and, if so, do his public pronouncements give us any insight into that?

    Apart from all that, there are still issues such as the pending motion for new trial and I think there are some valid appellate issues in this case. While I think the defense is unlikely to be successful in getting a new trial, the Fifth Circuit may be a different matter.

    DRJ (0c4ef8)

  43. I don’t think that the transcript, ON ITS FACE, helps Ramos and Compean. I am still concerned with Richard’s failure to file an pursuit report and what that means concerning the conflating of policy into law.

    But why is this relevant? Richards did not believe a pursuit that required a report took place that day (and it isn’t clear to me, based on what he knew, that it was). He is at worst guilty of misunderstanding the definition of a pursuit.

    On the other hand, I don’t think there is any plausible way to claim that Ramos and Compean honestly believed they did not need to file a report on the shooting. Rather, they knew very well what they were supposed to do, and intentionally avoided doing it.

    Maybe I’m missing your point, but the whole line of questioning we are talking about seems like nothing more than obfuscation by the defense.

    LagunaDave (afe857)

  44. LD,

    Your assumption is that Ramos and Compean did not report the shooting because they knew it was a bad shoot, but I still think it’s possible they did not report a shooting for other reasons. I know you don’t agree with this but, just for the sake of argument, assume with me that Ramos thought he was coming to the assistance of Compean and Compean acted out of fear or confusion at something he perceived to be a threat but, after Aldrete-Davila was gone and the incident was over, Compean realized wasn’t threatening.

    So there they are. Neither knows that Aldrete-Davila was shot and they never dream he would make a claim in the US regarding their actions. Their choice is to make the proper reports – something they probably knew they should do – or clam up. Perhaps Latin machismo played a small role to the extent they looked like Keystone Kops in their efforts to catch Aldrete-Davila and they didn’t want to admit it.

    Sure, in hindsight we can see how wrong this choice was but at the time they might have viewed this decision as an administrative choice, not a criminal matter. When faced with criminal charges, they simply could not grasp the concept of pleading guilty when they believed at most they had broken Border Patrol rules and had done nothing illegal.

    Obviously, it’s also possible that Ramos and Compean deliberately conspired to cover up this incident because they knew they had done something illegal. But I keep coming back to Compean’s 14 shots. The number of shots has always been the fact that makes Compean look out-of-control but it’s also the fact that makes it harder for me to believe Ramos and Compean would believe they could cover this up. It’s like the difference between trying to hide a mouse or trying to hide an elephant.

    Finally, I think the decision to focus on the pursuit issue was a trial tactic. Lawyers are trained to discredit the credibility of witnesses by showing inconsistencies. Richards was an important government witness and he was also firm on the need for reporting and paperwork. It would help the defense to discredit him and to show the Border Patrol reporting policies (whether they were shooting or pursuit policies) were difficult to understand and follow. The defense ended up spending a lot of time on that – probably more than they wanted – but it’s hard to change tactics in the middle of a trial. It’s also easier to see what works and what doesn’t in hindsight when you’ve seen how the testimony develops.

    DRJ (0c4ef8)

  45. On the other hand, I don’t think there is any plausible way to claim that Ramos and Compean honestly believed they did not need to file a report on the shooting. Rather, they knew very well what they were supposed to do, and intentionally avoided doing it.

    Maybe I’m missing your point, but the whole line of questioning we are talking about seems like nothing more than obfuscation by the defense.

    Comment by LagunaDave

    The reporting or lack thereof of incidents is a big part of this case. It is the factor that the prosecution contends shows that the defendants were guilty of shooting the drug smuggler for the fun of it.

    It’s a strange thing but it would seem to go against the motive to cover-up the incident.

    If they really thought Davila was no threat, had no weapon and they were trying to kill or injure Davila out of malice or for some wild entertainment, they would have expected to have a dead body or seriously wounded body on their hands with no weapon and they wouldn’t have been able to conceal any of it.

    They would have guaranteed themselves decades in prison and they both would have had to come to this suicidal decision on purpose.

    The only way such a thing would make sense is if the agents snapped and went out that day to “shoot some Mexicans” on some murder-suicide pact. This is why Bush’s justice department needed to tell the congressmen that lie; it’s the only possible motive that fits the charges.

    J Curtis (d21251)

  46. The did not report the shooting because they didn’t want any investigation into the incident. That would have led to questioning of other BPs agents at the scene, and the reality of what they had done would likely have been discovered.

    I’m sure this wasn’t the only unreported shooting to ever take place in SW Texas BP — or any BP office along the southern border. I’m sure there are unreported shootings weekly, and the “Code of Silence” among BP agents keeps them from coming to light.

    The difference here — the reason this episode had an independent inquiry initiated — was due to one inconvenient fact: the bullet lodged in OAD’s body and was recovered.

    Had that been a through-and-through flesh wound, there would have never been an investigation.

    But once the OIG and US Attorney had a bullet from Ramos’ gun, and there was NO RECORD anywhere in Fabens of a shooting incident on 2/17, the natural question investigators ask is “Why no report?”

    Once there was evidence of a shooting, the entire case turned upon the explanation for the shooting.

    Once the defense became based on “justification” and “perceived threat”, the OIG investigators went back to the first question “Why no report?”

    Its a fundamental inconsisentency and non-sequitur to say the shooting was justified but not reported.

    The conduct of Compean and Ramos following the shooting raises further questions, and their inability to tell an internal and mutually consistent story about what happened finally sunk them.

    Simple as that.

    WLS (35ba7d)

  47. “Its a fundamental inconsisentency and non-sequitur to say the shooting was justified but not reported.”

    True–IF they knew they hit him, which I don’t necessarily think is what happened.

    “The conduct of Compean and Ramos following the shooting raises further questions, and their inability to tell an internal and mutually consistent story about what happened finally sunk them.”

    If they knew they hit him, it seems to me that they would have conspired together to get their stories straight.

    Jerri Lynn Ward (9f83e6)

  48. JLW #47

    I had a very experienced judge tell me many years ago that in all his years sitting in a trial court he concluded there were really on two kinds of crimes:

    1. Misdemeanor stupidity

    2. Felony stupidity

    Kind of sums it up, doesn’t it?

    WLS (35ba7d)

  49. WLS,

    I want to make sure I understand your position, and I’m also curious about where you draw the line between sufficient and insufficient evidence to sustain a guilty verdict. I think you believe (and FWIW, I think the jury ultimately believed) that the agents’ failure to report the shooting was evidence that they knew this was a “bad shoot.” Do you think the agents’ failure to file a report was enough to justify a guilty verdict, or do you think the failure to report the shooting was one part of the totality of the circumstances that by itself was not sufficient to justify guilt?

    To be clear, I’m not suggesting there was no other evidence of guilt. My question is whether you believe the failure to report alone was enough to support a guilty verdict because it was inherently misleading and an attempt to cover up.

    DRJ (0c4ef8)

  50. The failure to file a report was evidence of “consciousness of guilt” with respect to the unjustified nature of the shooting.

    If the shooting was unjustified, then its an assault, not a lawful use of force. The failure to file a report, combined with the huge credibility problems the agents brought upon themselves by their conduct and inconsistencies, led the jury to conclude they didn’t believe their story.

    The whole case comes down to believing OAD (“I wasn’t armed”, therefore I never pointed anything at them and I wasn’t a threat”), or believing Compean and Ramos (“We thought he had something shiny in his hand when he turned and that caused us to fire”).

    Once the jury didn’t believe their story, they were guilty because their story was the only thing that was going to exonerate them, i.e., that the shooting was justified.

    The failure to file a shooting report can also constitute the separate crime of obstruction, but I think the factual predicate for that charge in this case was the picking up of the shell casings, and one or two other acts. I don’t think not filing a report was charged as obstruction in the indictment, though I could be wrong on that.

    WLS (35ba7d)

  51. WLS,

    Thanks for responding. Putting aside the obstruction charges, would it be fair for me to assume that you view this as a “who will the jury believe” case, and that the failure to report was primarily relevant to the agents’ motives and state of mind?

    DRJ (0c4ef8)

  52. DJR — absolutely. The physical evidence wasn’t really in controversy here. OAD was shot, and he was shot by Ramos’ gun. Compean and Ramos both admitted shooting at OAD.

    The whole case came down to the justification offered by Compean and Ramos for using deadly force.

    The prosecution BEGAN with OAD’s testimony that he wasn’t armed, and that he was running for Mexico when the BP started firing.

    After that the prosecution began stacking up facts that were not consistent with a justified shooting. By the time Ramos and Compean got on the stand, they needed to tell a perfect story to get off, and they didn’t do it.

    I think Ramos and Compean didn’t take the time to get their “stories straight” because they decided in the field that they weren’t going to report the shooting. The relied upon the other BP guys to not mention the shooting unless/until Ramos and Compean went on record.

    This is not uncommon. It could easily have been an unwritten rule in Fabens and other BP stations that no one mentions a shooting unless the guy who fired the shots mentions it first. IF the shooter keeps his mouth shut, everyone else understands they should keep their mouths shut as well. In this instance the other agents knew that the driver was as drug runner once the marijuana was found, so there was no sympathy for him — shot or not, justified or not.

    What broke the case was the fact that OAD still had the bullet in his leg, and it came from Ramos’ gun so the fact that there was a shooting was proven by physical evidence.

    At that point all the agents who knew about the shooting but had not reported it now were facing their own legal problems. Once the holes started appearing in the dike, Compean and Ramos didn’t have enough fingers to plug all the leaks. It was every BP agent for himself once OIG made it clear they had a bullet and they knew there was an unreported shooting.

    WLS (35ba7d)

  53. WLS,

    I agree with your last comment. It’s speculative on my part but it might have made a difference if the defense had been more forceful with Aldrete-Davila rather than focusing on the other BP agents. I think the defense was hamstrung by the limine rulings, an unwillingness to take on a somewhat sympathetic victim (because of his medical problems), and perhaps even by the nature of some of Aldrete-Davila’s testimony (the claims of inflammatory rhetoric directed at him by Compean). They probably decided it was better to get him off the stand and hope for helpful testimony from fellow agents. In hindsight, that didn’t work out since the other agents clearly weren’t helpful.

    DRJ (0c4ef8)

  54. WLS,

    You’ll agree then that Ramos and Compean certainly did not want Davila dead or seriously wounded and laying in a pool of blood on the US side of the border with no weapon in his possession?

    I know you do agree with that but I’m curious to learn if you’ll publicly admit that you agree with that.

    J Curtis (d21251)

  55. Sure — and they were relieved when they saw him up and moving across the river and into Mexico.

    But, at that point, there wasn’t much they could do about it, was there? The cards were dealt, and they had to play them out. They counted on the fact that the other other agents wouldn’t mention anything, and that OAD wouldn’t want to try that again.

    WLS (35ba7d)

  56. Okay, thanks — Then you have dismissed the motive that the government was implying throughout and actually stipulating when forced to explain the motive to those who might be a little more sophisticated than an El Paso jury; such as a group of congressmen that included some former prosecutors.

    Once we have dismissed that motive, we can clearly see that the shooting was either justified or accidental. Under any justified or accidental scenario, the agents would have been up against the Bush Administration and the Mexican Government and long prison terms were likely if they reported the incident. That is probably where we disagree.

    Oh yeah, and they would have been targeted for assassination by the Davila Hunting Party had they reported it since the agents’ names would have been available on BPETS at the time the hunting party was forming and the only reason it was called off was because Davila didn’t have the agents’ names. This is shown incontrovertibly from the evidence.

    J Curtis (d21251)

  57. I think Ramos and Compean didn’t take the time to get their “stories straight” because they decided in the field that they weren’t going to report the shooting. The relied upon the other BP guys to not mention the shooting unless/until Ramos and Compean went on record.

    This is not uncommon. It could easily have been an unwritten rule in Fabens and other BP stations that no one mentions a shooting unless the guy who fired the shots mentions it first. IF the shooter keeps his mouth shut, everyone else understands they should keep their mouths shut as well. In this instance the other agents knew that the driver was as drug runner once the marijuana was found, so there was no sympathy for him — shot or not, justified or not.

    That seems, to me, to be very farfetched. It seems more reasonable to believe that they didn’t think they hit the guy, that it was just a discharge of the weapons, and that their supervisors just didn’t want to hear about something like that because it was the end of the shift,they’d have to wait for other agencies for no good reason, paperwork would have to be done, and they had better things on which to spend their time.

    If you are conceding the possibility of an unwritten rule at the Fabens station, I don’t see how the scenario I pose above is anything but consistent with such an “unwritten rule”.

    Jerri Lynn Ward (9f83e6)

  58. Okay, thanks — Then you have dismissed the motive that the government was implying throughout and … [o]nce we have dismissed that motive, we can clearly see that the shooting was either justified or accidental.

    Actually, no. I think what you’ve really just done is lay out the reason that the jury settled for assault verdicts instead of convicting for attempted murder.

    Tracy (63e43e)

  59. Actually, no. I think what you’ve really just done is lay out the reason that the jury settled for assault verdicts instead of convicting for attempted murder.

    Comment by Tracy

    Do you agree with the question asked at #54?

    If you do agree, is it your contention that the agents intended to assault Davila with bullets but not assault him to the extent that they would be left with an unarmed corpse or seriously injured body on their hands?

    Do you think the agents had the skill to put a bullet in Davila “just so” so that he would be able to continue with his escape but with a little memento in his butt cheek to deter any subsequent adventures?

    J Curtis (d21251)

  60. Do you think the agents had the skill to put a bullet in Davila “just so” so that he would be able to continue with his escape but with a little memento in his butt cheek to deter any subsequent adventures?

    You may not have read the transcripts that far, but Ramos admits to being a sharpshooter.

    He did have the skilz.

    Does that mean that he can put a bullet through someone’s ass “to deter any subsequent adventures” and get a pass? No. Still illegal.

    Tracy (63e43e)

  61. Tracy,

    You’ll agree then that Ramos and Compean certainly did not want Davila dead or seriously wounded and laying in a pool of blood on the US side of the border with no weapon in his possession?

    And would you agree that Ramos would never put a bullet in Davila with a hope or expectation that Davila would be still be able to continue his escape to Mexico with the bullet in him?

    J Curtis (d21251)

  62. That’s where you lose me.

    Tracy (63e43e)

  63. Do you believe the agents did try to kill or seriously wound a knowingly unarmed drug smuggler?

    J Curtis (d21251)

  64. J Curtis,

    I’m not technically a participant in this debate but (subject to actually reading the testimony), my gut feeling is that Ramos shot because he was responding to Compean’s actions. I’m not sure what Compean was doing but I’d like to think that, at best, he thought he saw a weapon and, at worst, he overreacted in an unusual, stressful situation.

    Finally, I don’t think Ramos or Compean shot to miss and I suspect Ramos made a good shot just to hit Aldrete-Davila. Shooting a moving target in a stressful situation, especially when you don’t do it regularly, is not easy. I doubt either one was thinking “kill” or “don’t kill.” At that point, it was probably all training, skill, and instinct – and Ramos was better at all three.

    DRJ (0c4ef8)

  65. Do you believe the agents did try to kill or seriously wound a knowingly unarmed drug smuggler?

    I’ve read ahead in the testimony, but – yes, I do. I have residual doubt with regard to Ramos, but no doubt with regard to Compean.

    I think the jury did the right thing.

    And I would be SCREAMING if I didn’t think so.

    Tracy (63e43e)

  66. I’ve read ahead in the testimony, but – yes, I do. I have residual doubt with regard to Ramos, but no doubt with regard to Compean.

    Comment by Tracy

    Where in the testimony do the agents admit to trying to kill a knowingly unarmed drug smuggler?

    Since you do believe they were trying to kill a knowingly unarmed suspect, will you also agree that the agents were expecting that their shots would result in an unarmed suspect in a pool of blood on the American side of the river that they would have to explain?

    J Curtis (d21251)

  67. Non sequitur.

    Tracy (63e43e)

  68. What would have happened if the agents had killed Davila?

    J Curtis (d21251)

  69. J Curtis — you confuse “motive” with “state of mind/intent”. They are not the same. “Motive” is not an element of a criminal offense, and the government never has to prove motive. “Motive” is often a fact that makes one actor more likely to be guilty than another actor, when the evidence is circumstantial, but “motive” evidence suggests one is more likely than the other.

    “State of mind” has to do with the idea that we do not convict people for crimes based on accidental or mistaken conduct. For example, if Ramos had been running after OAD, tripped and fell down, and when he hit the ground his gun went off and struck OAD, he would not have acted “with intent to kill” because the discharge of his weapon wouldn’t have been purposeful — with the intent to kill.

    As the evidence showed, both Ramos and Compean stated that when they shot at OAD, they intended to kill him. Only in the movies do cops shoot to wound suspects.

    You continue to argue legal points about which you don’t have a clear understanding. Its tiring and its misleading to others.

    WLS (35ba7d)

  70. WLS,

    Oh, heck, you ruined an absolutely great comment with your last paragraph. One of the best things about internet blogs is the ability help each other understand things. If the only purpose of blogs is to let people vent, just go kick a tree or something.

    DRJ (0c4ef8)

  71. DRJ — J Curtis does not want to understand. He has a grievance, and he’s acting out here.

    My responses to him are not for his benefit, but for the benefit of others that read his comments and are confused by them.

    If I hurt his feelings, too bad. I don’t suffer fools gladly, especially ones with ulterior motives.

    WLS (35ba7d)

  72. Where in the testimony do the agents admit to trying to kill a knowingly unarmed drug smuggler?, J.Curtis.

    What would the agents say? I dunno, ‘Pursant to our pursuit policy and on the advice of counsel paid like school teachers, I thought our bullets traveled at 64 MPH and Davila would continue to travel at 66’ ? They’ve already said ‘a black thing like a weapon,’ Sir Lancelot with the attitude ‘that none of my friends, like me, cover their ass ever, because, you know, we’re like white guys and, with our DNA and all, such a thing would just never be possible, ever.’

    A friend’s uncle worked in the BP in the thirties. ‘Back then, if you were illegal you would be shot (like a coyote).’ The reason that ‘everybody’ wants to impeach OAD is because, absent that, the ‘thirties policy’ is what our BP policy becomes, at the discretion of the officer. And, not wanting (to acknowledge) that is the reason for the AG’s case.

    michael (44003a)

  73. WLS,

    I would have thought that any case worth examining is worth examining the motive. Motive was an important enough element that the DHS had to lie and make one up to throw the congressmen off the scent.

    How many motiveless cases have you prosecuted that have ended in long prison terms for multiple defendants? Is this case unique in that regard?

    It is not clear to me that everyone discussing this case here has rejected the motive that the government put forth to these congressmen. I realize that you have rejected that motive though.

    I’m considering the evidence the way a conscientious juror should. The government considers me a qualified juror and has called on me to serve in that capacity in the past so I’m most qualified to examine the evidence here. As a prosecutor, I’m less certain that you are qualified to examine the evidence in an impartial way. You shouldn’t take that as criticism.

    J Curtis (d21251)

  74. And that’s the interesting thing, J. Curtis. One would expect that, had this case been brought in the thirties, the jury would have nullified the prosecution.

    michael (44003a)

  75. If I hurt his feelings, too bad.
    Comment by WLS

    I’ve gone through 3 boxes of Kleenex due to your hurtful comments about me. If you keep it up I will just slink away, sapped of tears, and refuse to participate in this discussion any further.

    J Curtis (d21251)

  76. I’m not considering the evidence as how it pertains to 1930’s policy but to today’s policy.

    This means that if we are to accept the charge that both agents intended to kill a suspect they knew was unarmed, there was a motive and that motive was: the agents were disgusted with freedom and wanted to go to jail for a long time.

    That is the motive that Bush and his team have settled on. That motive is also known as “they wanted to shoot some Mexicans”.

    J Curtis (d21251)

  77. J Curtis — “why” they shot him is irrelevant UNLESS their reason constitutes a defense.

    It is enough to convict them of a crime that they shot him intentionally, i.e., neither of them stumbled and accidentally discharged their weapons, and that they intended to kill him when they shot.

    Their intention when pointing the weapons are OAD and pulling the trigger was to kill him, not to scare him. They admitted as much. They knew NOTHING about OAD at that time they chose to do that other than he had taken off in a van, and then jumped out and ran towards Mexico.

    And, NO, that does not make him a “fleeing felon” who can be shot with impunity by law enforcement.

    “Motive” just doesn’t enter into the question in any respect.

    Example:

    Lets say a bank robbery is committed together by Skid Row Bum #1 and Bill Gates.

    Skid Row Bum #1 hadn’t eaten in 3 days, and needed money for food. His “motive” in robbing the bank was for monetary gain — to get money to eat.

    Bill Gates has more money than anyone on earth. The fact that he doesn’t have a “motive” for monetary gain doesn’t make him any less guilty of robbing the bank than Skid Row Bum #1.

    What the law focuses on is not motive but “intent.” Did the defendant have the state of mind necessary to be found guilty of a crime at the time of the actions in question.

    Compean and Ramos’ state of mind when they fired their weapons was an “intent to kill” OAD.

    They said they did so because they feared for their life — but the jury didn’t believe them. That’s a fact the jury gets to decide.

    They can continue to proclaim on the courthouse steps that they thought they saw a gun — the jury didn’t believe them.

    Here’s a news flash for you — defendants in criminal cases often lie when the lie serves the purpose of getting them an acquittal.

    So, like many other criminal defendants facing lengthy prison sentences if convicted, Compean and Ramos lied.

    The jury said so.

    That’s the way the system works.

    wls (077d0d)

  78. wls,

    The jury said so.

    If the internet and Patterico’s Pontifications had been around during the OJ Simpson trial and we were all engaged in an examination of the evidence, I guess you would have been constantly reminding us “b-b-but the jury said so”.

    Let me clue you in. The reason we are even having this examination of the evidence is to determine if the jury got it right.

    J Curtis (d21251)

  79. 66

    The issue is not whether the agents knew OAD was unarmed but whether they had a legally sufficient reason to shoot. I believe in the past you have suggested Compean was firing warning shots in an attempt to get OAD to surrender. This is not a legally sufficient reason to shoot.

    As for shooting him accidentally, if they were trying to scare OAD and accidentally shot him in the process then I believe legally they are guilty of everything the jury convicted them of.

    James B. Shearer (fc887e)

  80. 79

    My gut feeling is that Compean was shooting to miss Davila in an attempt to make him surrender and I believe there were extenuating circumstances that justified the off-policy action. It is also my best guess that Ramos, upon hearing the shots and assuming a two sided gunfight, arrived at the scene and shot a bullet at Davila. The theory sounds far-fetched but it is also the most logically sound explanation in which the evidence falls into place. All other suitable explanations would of the “justifiable” variety.

    What I have been doing in this thread is examining the government’s contention that the agents shot at Davila with the intention of killing him while knowing that he didn’t have a weapon and was no threat.

    This version doesn’t stand up to scrutiny unless you can believe that the agents wanted an unarmed corpse on their hands and the consequences that would surely follow. If it was one agent we could ponder insanity as the motivator but not with two agents at the same time.

    I think everyone has agreed that this case is unique in that the defendants received 23 combined years in jail for a “crime” for which there was no motive. Someone even compared it to Bill Gates robbing a bank! Although I think we would have settled on insanity being the motivator for that one.

    J Curtis (d21251)

  81. 80

    So you believe both agents lied under oath at trial about the “shiny object” in OAD’s hand?

    Btw what do you think a reasonable sentence for falsely claiming under oath in a trial that the victim of a shooting appeared to threaten the shooter with a weapon would be?

    James B. Shearer (fc887e)

  82. J Curtis — you are at a fundamental disadvantage compared to the jury when all you have are words on a transcript and the comments of the agents supporters/detractors.

    The jury and the HUGE advantage of actually seeing the witnesses’ faces and hearing their voices as they described first hand what their involvement was in the events in question. There is no substitute for looking a person in the face as they speak.

    Did the witness look at the ground as he answered? Did the witness’s voice tail off as he answered? Did the witness shift uncomfortably in his chair? Did the answers come quickly as they would to a person who was simply stating what he say, or did the answers come haltingly and sluggishly, like from a person who was trying to “stick to the script”?

    All these non-testimony signals are what key humans into determining who is lying and who is telling the truth when two people present at the same episode tell completely different stories about what happened.

    You can NEVER hope to replicate what the jury heard/saw, so you’ll never be in a position to question their judgment.

    The law recognizes this limitation — appeals court judges will not reverse a credibility determination of a trial court judge re the believability of a witness because the trial judge had the un-matched benefit of watching the witness as he/she testified.

    Same goes for observers who want to question the wisdom of a jury verdict simply by reading words on a page months or years after the fact.

    And its not like OJ for a couple reasons. First, the OJ trial was televised so everyone could see the witnesses and the way they answered questions for themselves.

    Second, the physical evidence in the OJ trial was overwhelming. The only explanation for the jury’s verdict was “nullification” — a mostly A-A jury was going to acquit OJ because he was a symbol of the A-A community, and it was a “stick-in-the-eye” to the LAPD in the post-Rodney King era.

    wls (077d0d)

  83. J Curtis — you are still mixing in as a “fact” that the agents knowingly shot an unarmed man.

    That was not the evidence, and it was not necessary to the verdict finding them guilty.

    The test is whether the agents had a reasonable belief that OAD had a gun and constituted an immediate threat to the safety of them or others.

    If, for example, Compean had ordered OAD to the ground, searched him and found him to be unarmed, then told him to get on his feet and run back to Mexico before beginning to shoot at him, then the evidence would support a finding that Compean KNOWINGLY shot at an unarmed subject.

    The evidence here showed that Compean had no reason to suspect that Compean was armed — no weapon was brandished, OAD had his open hands above his head, no other BP agent present saw a weapon, and OAD testified that he didn’t have a weapon.

    Compean had to be able to state specific and articulable FACTS for his belief that OAD was an armed threat as he ran for Mexico in order for that belief to be “reasonable”.

    You labor under the fantasy that Compean was firing warning shots into the air. That claim has NO BASIS in th record anywhere. What witness said that? If no one says it, there’s no basis in a trial to conclude that it was true.

    My view is that Compean was mad at OAD because Compean had fallen face-first down the bank of the ditch when he swung his shotgun at OAD’s head and missed. OAD took off running, and once Compean regained his feet he took off after him. But Compean quickly realized that OAD was going to make it to the river long before Compean could catch him, so Compean decided to squeeze off a few rounds at him — again, all in anger/frustration.

    I think the entire episode unfolded in less than a minute, and Compean never considered the consequences of what he was doing.

    Re the sentence, don’t blame the prosecutors or the judge — go ask those congressmen who are up in arms about the case. They voted for the following language in 18 U.S.C. Section 924(c):

    “Any person who, during and in relation to a crime of violence … uses or carries a firearm, shall, in addition to the punishment provided for such crime of violence … if the firearm is discharged, be sentenced to an additional term of imprisonment of not less than 10 years.”

    So, 10 years of the 11 year sentence for Ramos, and 10 years of the 12 year sentence for Compean, is 100% attributed to the mandatory provisions adopted by Congress in Sec. 924(c) for discharging a firearm during a crime of violence.

    wls (077d0d)

  84. So you believe both agents lied under oath at trial about the “shiny object” in OAD’s hand?

    Comment by James B. Shearer

    As I stated several times, I could see a scenario where reporting a justifiable or accidental shooting would ensure them long prison terms. One need only take an honest look at who the current president is to realize this:

    News source: Los Angeles Times (Politics)
    Source: http://www.latimes.com/
    Date: 06/04/96

    -excerpt-

    On the issue of drug smuggling, for example, Wilson urged Dole this spring to push the Clinton administration to officially cite Mexico for not adequately helping U.S. authorities crack down on traffickers.

    Bush, however, responded to the issue by writing a letter telling Dole that any such step “would have devastating effects for the citizens of the U.S.-Mexico region.”

    And the Bush team during the trial:

    “We all know that there’s a lot of poverty in Mexico. We know why people commit these crimes. We know why people bring drugs into the United States. Because they don’t have the money to feed their families. That’s why they do it.”

    Bush considers himself, before anything else, the protector of Mexico’s drug dealers. He warned Dole to not interfere with the drug trade because it would hurt the Mexican drug dealers. It can’t be read to mean anything but that but feel free to spin it if you can.

    I think things happen out there every day that could be reported but aren’t. I think the majority of border patrol agents would be in jail today if everything that happens out there was reported.

    J Curtis (d21251)

  85. 82

    “The jury and the HUGE advantage of actually seeing the witnesses’ faces and hearing their voices as they described first hand what their involvement was in the events in question. There is no substitute for looking a person in the face as they speak.

    Did the witness look at the ground as he answered? Did the witness’s voice tail off as he answered? Did the witness shift uncomfortably in his chair? Did the answers come quickly as they would to a person who was simply stating what he say, or did the answers come haltingly and sluggishly, like from a person who was trying to “stick to the script”?

    All these non-testimony signals are what key humans into determining who is lying and who is telling the truth when two people present at the same episode tell completely different stories about what happened.”

    Actually I believe studies have shown this sort of thing is no help at all. Some liars make a good impression and some truth tellers make a bad impression on the witness stand.

    James B. Shearer (fc887e)

  86. 84

    The agents had alternatives to lying under oath. They could have taken a plea, declined to testify or told the truth.

    James B. Shearer (fc887e)

  87. 83

    “So, 10 years of the 11 year sentence for Ramos, and 10 years of the 12 year sentence for Compean, is 100% attributed to the mandatory provisions adopted by Congress in Sec. 924(c) for discharging a firearm during a crime of violence.”

    I don’t think this is accurate. Absent the mandatory 10 years I expect they would gotten more than a year or two.

    James B. Shearer (fc887e)

  88. wls,

    you are at a fundamental disadvantage compared to the jury when all you have are words on a transcript and the comments of the agents supporters/detractors.

    Wrong. I have a huge advantage over the jury in that I am privy to the information that was kept hidden from them.

    I also have the advantage of hindsight and knowledge of information that discredits information that would have been considered credible at the time of the trial.

    I also have the luxury of being able to come to conclusions about the evidence without being coerced into conforming to the conclusions that other jurors have come to, as three jurors claimed happened to them during the trial.

    J Curtis (d21251)

  89. 85 — Ok James.

    Lets just jettison the jury system in use for over 200 years in favor of a few studies.

    What’s your proposal for a replacement?

    How many times have you cross-examined a lying witness?

    How many times have you had a defendant who lied at trail break down at sentencing and tell the truth to the judge?

    wls (077d0d)

  90. 87 — James

    You’re wrong.

    Read the transcript of the sentencing.

    The statute is absolutely clear, it has been ruled upon by the Supreme Court, and its regulary used in crimes of violence in federal court.

    Ramos got 12 months and a day, plus 10 years.

    Compean got 24 months, plus 10 years.

    The reason Ramos got 12 months and a day is because prisoners with sentences of 12 months or less aren’t eligible to earn “good time” credits in prison. I think they can earn up to 57 days a year time off their sentence. By imposing 12 months and a day, the judge made him eligible to earn 57 days of good time credit on his one year sentence.

    wls (077d0d)

  91. J Curtis

    There are rules of evidence that apply to EVERY trial that limit the nature and type of evidence that can be admitted by both sides. These rules have been used and refined for centuries in order to ensure that the participants receive a fair trial as provided by law and in accordance with the Constitution.

    Ramos and Compean had exceptional attorneys, and it was the attorneys job to get the most favorable evidence allowed by the rules before the jury, and to keep from the jury any unfavorable evidence that the rules would preclude.

    The Rules of Evidence allow for the admission of ALL relevant and probative evidence that is not UNFAIRLY prejudicial.

    You think you know things, but all you have is rumor and gossip that is posted all over cyber-space. I haven’t seen you post one “fact” that you claim was kept from the jury that was not a subject of debate between the parties and the court at trial.

    What you represent here is “mob justice” — dependant upon and guided by inflamed emotions –not respect for the Constitutional guarantee of a fair trial.

    wls (077d0d)

  92. 89

    I am not proposing to change anything, I am just saying witness demeanor is not a very good indication of truthfulness. For example a confident identification is not better than a hesitant identification.

    James B. Shearer (fc887e)

  93. 90

    The defense asked the judge to adjust the other sentences downward because of the mandatory 10. I suspect she did. In any case where does she say she would have given 0 instead of 10 if she were free to do so?

    James B. Shearer (fc887e)

  94. wls said:

    “Here’s a news flash for you — defendants in criminal cases often lie when the lie serves the purpose of getting them an acquittal.

    So, like many other criminal defendants facing lengthy prison sentences if convicted, Compean and Ramos lied.”

    Do you have any thoughts about why they didn’t take the plea deal? It seems to me that if all they were concerned about was a lengthy sentence they would have taken the deal.

    Jerri Lynn Ward (d7ff57)

  95. 94

    I don’t know why they didn’t take the deal. Perhaps they were in denial. Perhaps their lawyers (or others) gave them bad advice. Perhaps they couldn’t face explaining to their families (and other supporters) that they had lied about what had happened.

    James B. Shearer (fc887e)

  96. 95.

    I’ve reached the point where I wish they had for their families’ sake.

    Jerri Lynn Ward (d7ff57)

  97. I think they didn’t take the deal because they had union support, they had family support, and they deluded themselves with the thought of “Who is the jury going to believe, us or a drug trafficker?” Too many people suggesting that they could overcome the odds and get an acquittal.

    I don’t think they really understood how strong the witness testimony was going to line up against them once it all came out.

    I agree with Jerri that Ramos’ attorney chose a poor theory of defense, and Ramos should blame Compean for every day he spends in jail.

    wls (077d0d)

  98. “I don’t know why they didn’t take the deal.”

    It’s because they are innocent. That should be pretty obvious.

    petit bourgeois (69e150)

  99. wls,

    There are rules of evidence that apply to EVERY trial that limit the nature and type of evidence that can be admitted by both sides.

    What is your point? I’m not burdened by these limitations during my examination of the evidence. Aren’t you a little embarrassed by your desperate flailing arguments? What is your investment in this case?

    You think you know things, but all you have is rumor and gossip that is posted all over cyber-space.

    Do you have an example of that or is your desperation causing you to become dishonest now?

    J Curtis (d21251)

  100. You claim to know that OAD delivered another load of MJ in October 2005, that this “evidence” was kept from the jury.

    What’s your source for that claim?

    wls (077d0d)

  101. “It’s because they are innocent. That should be pretty obvious.”

    I still believe this as well. However, when I see most of my fellow lawyers–especially those with experience trying criminal cases in federal court, assessing the evidence and coming to the conclusion that the verdict is solidly based on the evidence, I have to guess that I am missing something in my analysis.

    At the least, I have to conclude that if I had been one of attorneys, I would have been urging them to plead to the sweet deals they were offered. I have a feeling that the attorneys tried with all their might to get their clients to take the deals, but their clients listened to others as WLS suspects.

    If they are truly innocent, I don’t think they had the kind of financial resources necessary to counter the evidence that the prosecution put on. I’m not sure what it would have taken, but,then, I’m no F. Lee Bailey.

    I’d like to see them get either a pardon or commutation of their sentence because I don’t agree with the addition of the weapons charge that caused the mandatory minimum–(and because I still believe they are innocent–at least with regard to Ramos).

    Jerri Lynn Ward (9f83e6)

  102. WLS,

    I think J Curtis is referring to this article:

    “The Mexican national shot by two Border Patrol agents in a drug-related incident in February 2005 brought a second van load of drugs into the U.S. while he waited to testify against the agents, according to Drug Enforcement Administration reports obtained by the Daily Bulletin.

    Osbaldo Aldrete-Davila – who was given immunity by U.S. prosecutors in exchange for testifying against former agents Ignacio Ramos and Jose Alonso Compean – is the focus of a November 2005 DEA report that identifies him as the person responsible for stashing more than 750 pounds of marijuana in a van parked at a house in Clint, Texas, in October of that year.

    “(A witness) stated that Osbaldo Aldrete-Davila was the individual that dropped off the 1990 Chevy Astro van,” according to the DEA document. “This van contained approximately 6 bundles of marijuana.”

    DEA interviews with the Clint house’s owner, Cipriano Ortiz-Hernandez, led to Ortiz-Hernandez’s brother, Jose Ortiz, who told DEA agents that Aldrete-Davila had moved the narcotics from Juarez to El Paso, adding that the van Aldrete-Davila was driving needed work, so he referred him to his mechanic brother, Cipriano.

    “Jose Ortiz thought for a minute, and then stated that we should know Davila’s identity because he is the person who was shot by Border Patrol agents six months ago,” the report states. Cipriano Ortiz-Hernandez also identified Aldrete-Davila as the van’s driver after seeing a photo array, according to the DEA documents.”

    DRJ (0c4ef8)

  103. From the same article:

    “Western District of Texas U.S. Attorney Johnny Sutton, whose office prosecuted Ramos and Compean, has denied numerous times that Aldrete-Davila brought a second load of narcotics into the United States after being granted immunity.

    Sutton said in a Jan. 17 “Myths vs. Reality” press release that “Aldrete has not been subsequently arrested for drug smuggling. Our office is in the business of prosecuting drug traffickers and alien smugglers … If we had a provable case against Aldrete, we would prosecute him.”

    Sutton’s assertion that Aldrete-Davila has not been arrested is accurate. However, an Oct. 25, 2005, DEA report shows that DEA investigators believed they had sufficient evidence to indict Aldrete-Davila, but their requests to do so were denied by prosecutors.

    According to a high-level source close to the investigation, Assistant U.S. Attorney Laura Gregory was notified in October 2005 that Aldrete-Davila was being investigated by the DEA and that the agency had new evidence against him. Gregory dismissed the warning, the source said.

    Shana Jones, special assistant to Sutton, said she could not comment on Gregory’s meeting with the DEA, or on the DEA documents. “We have posted the transcript of the (agents’) trial,” Jones said. “We are not going to comment about matters that are under seal or are ongoing investigations.”

    DRJ (0c4ef8)

  104. Ok — fine. Here’s my response:

    You’ve got two brothers who own a house where 750 pounds of marijuana was stashed, identifying the driver of the van that brought the marijuana as a person whose identity is well publicized in connection with a high profile case.

    Well, he must be GUILTY — a person suspected by DEA of owning a stash house with 750 pounds of marijuana told DEA that he was the driver. That sounds about as compelling a case as I can imagine.

    Maybe OAD is affiliated with a rival drug organization, and the DEA source is trying to divert attention to their competition?

    Maybe the US Attorney’s Office looked into the issue and found evidence that OAD was someplace other than El Paso on the night in question?

    MAYBE the DEA agents had some sympathy with their brethren in the BP, and saw this as an opportuntiy to undermine the basis of the prosecution against Compean and Ramos by making a big deal out of one suspects statement pointing the finger at another well-known subject?

    In that area the BP and DEA work together often. Maybe the DEA guys were as mad at the US Attorney’s Office for aggressively prosecuting Compean and Ramos as some of the people on this board.

    If a DEA agent brought me a report and said “Two brothers with 750 pounds of MJ in their house say “Pedro” delivered a load of MJ, lets indict Pedro”, I’d suggest the DEA agent go back to the academy and relearn the concept of corroboration.

    AND, I’ll finish by pointing out that the author of this particular article has distinguished herself with her unvarnished support of the agents in her series of articles on the investigation and the trial, and she has managed to get many things wrong — such as the following from the very article you link:

    “The Mexican national shot by two Border Patrol agents in a drug-related incident in February 2005 brought a second van load of drugs into the U.S. while he waited to testify against the agents, according to Drug Enforcement Administration reports obtained by the Daily Bulletin.”

    That pretty much describes the claim as a FACT. It not until later in the article that you read the only basis for this assertion of “fact” by her is the claims of two brothers being questioned about having 750 pounds of MJ.

    Well, if that is what passes for evidence, I’d like to know from J Curtis why he left 2 kilos of cocaine in my mail box yesterday?

    I know it was him.

    wls (077d0d)

  105. It seems this article struck a nerve with you, WLS.

    DRJ (0c4ef8)

  106. DRJ

    WLS is correct on the stash

    explain how a guy with a catheter and walking difficulties could have accomplished this task

    probably was refused when the DEA could answer basic questions like – was he on a piss bag and could barely walk?

    you can indict a ham sandwhich

    EricPWJohnson (405d78)

  107. Eric,

    I read elsewhere that the reason Cipriano said he remembered Aldrete-Davila was because they both had catheters and bags. Small world, isn’t it?

    DRJ (0c4ef8)

  108. It didn’t strike a nerve, and I had read this article before.

    My point is that an article written by a sympathetic reporter about a DEA report as described by her IS NOT EVIDENCE THAT OAD DID ANYTHING.

    Its a reporter’s characterization of a memorandum written by a DEA agent about what two drug traffickers told him about the 750 pounds of marijuana delivered to their house.

    And people coming to this blog suggest that is EVIDENCE that Compean and Ramos are innocent???????

    And they ignore the bald face lies told by the agents themselves.

    WLS (35ba7d)

  109. Hold on WLS. If this article is true, then Aldrete-Davila is either a liar or this case helped him start a new career. However, I’m more interested in how this impacts the US Attorney’s public statements regarding Aldrete-Davila.

    DRJ (0c4ef8)

  110. You claim to know that OAD delivered another load of MJ in October 2005, that this “evidence” was kept from the jury.

    What’s your source for that claim?

    Comment by wls

    I read the transcripts as soon as they came out and I wrote about this in the very first transcripts thread here on pattericos. My source was the transcripts.

    Is that the “internet rumor” you accuse me of spreading? I might be the first one who wrote about it on the internet.

    J Curtis (d21251)

  111. DRJ — before we ever jump to the question of “if its true”, shouldn’t we have some evidence?

    Is it true that J Curtis put two pounds of cocaine in my mailbox?

    You’ve got the same amount of evidence of the truth of my statement has you have of the truth of the statement made by the two brothers about OAD.

    But, lets assume its true — how does it make OAD a liar? I have not read the transcript of OAD’s testimony, but did he deny being involved with any other shipments of drugs?

    Frankly, I can’t believe the question would even be allowed — its a fishing expedition into the credibility of a witness where there is no evidence. It’s similar to asking “When did you stop beating your wife?”

    And, so what if he is a liar? Does that mean he doesn’t have Ramos’ bullet in his @ss? Does it mean that Juarez never saw a gun, and never heard Compean or Ramos shout out a warning to the other BP personnel at the scene?

    Does it mean that Compean did not pick up his brass and throw them in the ditch when they had both been through an instruction course the previous day on BP shooting policy and post-shooting investigation protocol?

    Does it mean that Compean and Ramos didn’t fail to tell any supervisor or make any reference in any report anywhere that they had discharged their weapons even though they had been through training THE PREVIOUS DAY on the subject of reporting all discharges of firearms within one hour of the event?

    The idea that if OAD was a liar, then all the other evidence that suggests Compean and Ramos went to extreme lengths to prevent and investigation would suddenly disappear is comical.

    A criminal case is a mosaic. Just like a mosaic, if you focus your attention on only one tile, you make it impossible to see the image created by all the tiles put together.

    wls (077d0d)

  112. wls,
    …what two drug traffickers told him about the 750 pounds of marijuana delivered to their house.

    You may know more than I do about this second load because I haven’t read where they were both drug traffickers. The story I read was the guy at the house was just some innocent acquaintance where Davila dropped the dope after his van had engine trouble. Can you tell me where you learned that the guy at the house was a known drug trafficker?

    I guess if the guy at the house was a drug trafficker, as you claim, you can hold out hope that the DEA did a “knock and talk” just to check up on the known trafficker but that still seems rather unlikely.

    It seems more logical that the government was aware that drugs were dropped there the day before. If they were aware of that then they were aware of who dropped it there because they were tailing the driver or planted a gps on him.

    Are you holding out hope that the guy at the house is falsely accusing Davila of bringing the dope there?

    J Curtis (d21251)

  113. WLS,

    I don’t know if this story is true but, of course, you don’t either. However, we have some basis to believe it’s more than mere rumor because (1) a DEA investigation was reported in the news, (2) it was referred to at trial by defense counsel Mary Stillinger, whose subpoena of 2 DEA agents was quashed and/or not issued by the Court, and (3) it may be related to the testimony under seal – I don’t know since I haven’t read that far. If so, it is an interesting appeal issue in light of the Sipe case.

    But let’s put all that aside because I agree we don’t know what’s true and we can’t make any solid decisions based on it – hence my preface “If the article is true.” I think you made 2 points beyond that and I’ll try to respond to each:

    1. Why does this make Aldrete-Davila a liar?

    It doesn’t. He could have been completely truthful at trial about his inexperience with drug trafficking and this opened the door to his new career. Perhaps the Mexican drug supplier realized Aldrete-Davila was valuable because he now had a valid US Attorney-provided border pass and could easily cross the border. Maybe the supplier even gave Aldrete-Davila a job painting drug vehicles when he wasn’t ferrying loads across the border.

    For my part, I think Aldrete-Davila was already involved in the drug trade. I don’t believe a drug supplier would trust an unknown novice with 750 lbs of marijuana to drive alone in far West Texas. The supplier had to have some concern that Aldrete-Davila might take the van and stay in the US, and the supplier couldn’t pursue him with guns blazing down Interstate 20 to get the load back. But, as they say, anything’s possible. That’s why I said Aldrete-Davila was either a liar or had started a new career.

    However, if Aldrete-Davila is a repeat offender, that puts his credibility in issue and is evidence he lied when he claimed to be a novice participant in drug trafficking. Specifically, it contradicts his sworn testimony that he doesn’t know anything about drugs, did nothing more than walk across the border and drive a van a few miles, and doesn’t know what marijuana smells like or how it’s packaged. Aldrete-Davila’s willingness to engage in repeated offenses would also impact whether or not he routinely carried a gun or had a cell phone.

    Further, whether Aldrete-Davila was involved in a subsequent incident also calls into question his claim that his goal was to get to Mexico and avoid arrest. True, he wanted to avoid arrest that day but he was willing to risk arrest another day. I think that undermines his testimony regarding the immunity agreement.

    2. Why would it matter anyway, since there was so much evidence of guilt?

    It matters for exactly the reason you state: A criminal trial is like a mosaic. Change one piece and you don’t know if/how it would change the way people view it. For instance, Chief Luis Barker testified that if he had known that Aldrete-Davila filed a claim for $5 million, had committed a serious offense in the US, and that he was the only witness who said he didn’t have a gun, that would make it a difficult question to evaluate his credibility. (Vol XI pp 193-194.) If we add the possibility that Aldrete-Davila lied about his role, I think Chief Barker would agree it would be even more difficult to evaluate Aldrete-Davila’s credibility.

    It would have been inflammatory to learn that Aldrete-Davila was drug trafficking within days of the date the trial was initially scheduled. Apparently the Court kept that information out because of its prejudicial effect but I have a big problem with the Court’s willingness to shield Aldrete-Davila from prejudice when he wasn’t the one on trial. What is the rationale for protecting an immunized witness? I view that as a significant appeal issue.

    Based on your prior comments, I think we agree this is a credibility case and not a dispute about physical evidence. I hope we can agree that evidence of Aldrete-Davila’s misconduct is relevant to the question of his character and credibility. If Aldrete-Davila’s credibility is in question, then I think we have to reconsider whether Aldrete-Davila had a gun or some shiny object in his hand and exactly what happened in Fabens that day.

    DRJ (0c4ef8)

  114. J Curtis and DRJ:

    On the subject of the newspaper report and the DEA memo fingering OAD for a second load — the article doesn’t specifically pinpoint a date for the shipment, but seems to suggest is is 10/25/05. A curious fact about that date is raised in Vol I of the transcript:

    At the Oct. 12, 2005 hearing on the motion to continue the trial date due to the filing of additional charges, the Pros. advised the Court that if the case was going to be continued, it needed to be moved into Jan. or Feb, 2006. Why? Here’s why:

    OAD was in need of surgery to have is urethra re-connected to his bladder, as it had been severed by the bullet. There were only two specialists in the Army medical corps to perform this surgery, one of whom was at Brooks Army Medical Center in San Antonio. As of the 10/12/05 hearing, the Pros. said:

    “They have an appointment for him [at Brooks] — he needs to travel to San Antonio on Oct. 23. He needs to check into Brooks on the 24th for prep. The surgery will be on the 25th. They need to keep him in the hospital a couple days after that.

    So, DEA’s “witnesses” to OAD’s alleged second delivery may have actually pinned the crime on him on days where the Gov’t could 100% confirm that he was not in El Paso, but was in a San Antonio Army hospital.

    I’ve looked through several other transcripts for some discussion of whether or not OAD went forward with this procedure, or any other discussion regarding the alleged second load and the DEA memo, but I haven’t found it yet.

    I would appreciate if someone could point me to the volume that contains any such discussions.

    wls (077d0d)

  115. J Curtis — you also claimed that the prosecutor used all their strikes to get rid of potential jurors with anglo names. Where is your evidence for that claim, or did you just read it on the internet?

    Its not in the transcript — Vol VI contains the jury selection, and there is nothing in Vol VI that shows the prosecutor doing any such thing.

    wls (077d0d)

  116. J Curtis — re the two brothers.

    Although its not mentioned in this article, I have a recollection of reading elsewhere that the house was described by DEA as a “stash house”. Whether that was because of the drugs found there in 10/05, or because other loads of drugs were known to have come there in the past, I don’t know.

    Re a “knock and talk” — the fact the agents took that approach actually suggests the contrary of what you claim. If the agents knew there was drugs in the van, they would have obtained a search warrant and searched both the van and the house.

    The fact that they went with a “knock and talk” suggests that they had an uncorroborated tip — either anonymous, or from a snitch, that a load van had been parked at that residence. A “knock and talk” is a process by which the agents seek to get consent to search the van when they lack probable cause to get a warrant.

    Re whether the brothers were drug traffickers or not, I based that conclusion on the ID of the house as a “stash house” which suggests some prior history about which DEA was aware, and the fact that Cipriano is quoted as saying OAD drove the drugs from Juarez to El Paso — which evidences some knowledge on his part that drugs were in the car.

    Its true as some have suggested here that drug trafficking organizations do not entrust hundreds of thousands of dollars worth of drugs to people they don’t trust, and its also true that they don’t park load vehicles with hundreds of thousands of dollars worth of drugs at the homes of people they don’t trust.

    wls (077d0d)

  117. you also claimed that the prosecutor used all their strikes to get rid of potential jurors with anglo names. Where is your evidence for that claim, or did you just read it on the internet?

    Comment by wls

    What makes you think if I don’t have evidence that I must have got it from the internet? Do you let the internet do your thinking for you or something?

    If you go back and read what I said in that thread you’ll notice that I mention precisely what kind of evidence I would need to prove the notion: Panel names and numbers and the defense strikes. Someone did make a good point about one of the hispanic names that the judge didn’t remove for cause who seemed sympathetic to border agents. The government might have struck that guy but where everything else is unknown, I don’t know why you would think that the government wouldn’t take advantage of having as many hispanic names on the jury as possible who would be more likely to sympathize with the illegal alien. I mean, sure, it’s stacking the jury against the agents but can you blame them? Isn’t it their job to get that conviction?

    Anyhow, have you found the link to back up your claim that the guy at the house during the october load was a drug trafficker?

    J Curtis (d21251)

  118. Re whether the brothers were drug traffickers or not, I based that conclusion on the ID of the house as a “stash house” which suggests some prior history about which DEA was aware, and the fact that Cipriano is quoted as saying OAD drove the drugs from Juarez to El Paso — which evidences some knowledge on his part that drugs were in the car.

    When you say “Cipriano” you aren’t referring to the guy at the house, you are referring to the known drug smuggler who was the guy’s brother.

    The reason all of that needs to be nailed down is because I don’t think they arrested the guy at the house. If he was a known drug smuggler I don’t think they would have had a choice but to arrest the guy at the house.

    I guess the anonymous tip theory is possible…but would the feds come out on an anonymous tip? Still seems unlikely.

    It’s a year and a half after that incident and there is no way that they are still investigating the matter. They are concealing it.

    J Curtis (d21251)

  119. My gut feeling is that Compean was shooting to miss Davila in an attempt to make him surrender...

    1.) Then why didn’t Compean say this instead of saying “I was trying to kill the alien”?

    2.) Even if he had said that, it is not a defense. “Warning shots” are not legal.

    Tracy (63e43e)

  120. 118

    I’ll be happy to explain it to you again, Tracy.

    If my “gut feeling” theory is correct, as justified and/or accidental as the shooting may have been, they would have guaranteed themselves a long prison term if they reported it so they settled on a story that gave them a chance of not doing prison time. I would have done the same.

    I’ll spare you the part that explains why Bush considers himself the Moses of the Mexican drug traffickers. I think I already covered that in this thread.

    I’ve also explained to you before why I believe warning shots were totally justified in this instance due to extenuating circumstances; Texan escaping from the United States while in the act of a felony ( fleeing from a federal officer ) and probable multiple felonies pending ( cargo ).

    That is the only theory that I feel fits the evidence except for the story they went with. Their official story, however, has one problem that I can’t get past…why didn’t Davila end up dead? The government’s story has that same problem as well as many other problems.

    J Curtis (d21251)


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