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?
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.
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. 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?
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.]