The 14th witness of the trial was Luis Barker:

From Transcript XI:

137-142 – [Bench conference regarding Karhoff memo: Defense counsel renewed their request to obtain a copy of the Karhoff memo (the cover memo written by Rene Sanchez’s supervisor in forwarding his memo to the OIG) on the grounds it might assist in impeaching Rene Sanchez. Over an objection by the government, the Court ruled the memo was discoverable but expressed the opinion that it was extraneous and refused to rule on its ultimate admissibility.]

Witness #14 – Luis Barker:

Government direct examination (by Debra Kanof):

142-143 – Luis Barker is currently employed in Washington DC as the deputy chief of the Border Patrol, the number 2 man in the BP. Barker has been employed in the BP for 26 years:

1998-5/2005 – Chief of El Paso sector.
1995-1998 – Chief patrol agent in Laredo.
1993-1995 – Deputy chief in Laredo and Del Rio.
1990-1993 – Assistant chief in Del Rio sector.
1989-1990 – Deputy regional chief in the southern regional office.
1986-1989 – Staff officer, Assistant Commission of BP in Washington DC.
____-1986 – Instructor and supervisor, BP academy.
(1st 5-1/2 yrs)- BP line agent

143-144 – Barker was responsible for the El Paso sector in February 2005. It is the 4th largest of the BP sectors.

144 – Barker explained under what circumstances a Border Patrol line agent is permitted to discharge a weapon:

“A. It says it should stop an action against the agent. The shoot- — the firearms policy has been expanded since, or — since the — since about 2000, more or less. Prior — prior to that, it was simply in three instances: self-defense; defense of another person, or your partner; and defense of a third innocent party, who in – who is at risk of extreme danger. With the new policy they expanded it to include discharging a weapon against animals, for those same – for those certain reasons.”

144-145 – The BP’s shooting policy is clear. Any discharge (except intentional shots that are part of a qualifications course) must be reported. Even qualifications shots must be reported if they are accidental.

145-147 – A report of a shooting triggers a BP investigation. The purpose of the investigation is to make sure there was a threat, that the person had authority to shoot, and that the policy was not violated. The policy requires that the agent orally report a shooting within an hour. Upon receipt of a report, the supervisor is generally required to make a written report. The written report goes up the chain [of command] to start an investigation, notify superiors of the shooting, and to look for deficiencies in training.

147 – The BP is a US federal government agency.

147 – The agent only has to make an oral report. He must also submit to an inquiry if there is one. He generally must surrender his weapon unless it was an accidental discharge.

147-148 – After a report of a shooting, the BP dispatches a sector evidence team to secure the area so the OIG/FBI can investigate. The BP gathers evidence for use in an “official proceeding.”

148-151 – [Bench conference regarding defense counsel’s objection to the term “official proceeding” as a statutory term/term of art that may be defined by the Court in the jury instructions. Not every investigation is an official proceeding. Counsel requested that the Court admonish the jury that the witness’s use of the term is not determinative of the ultimate fact issue. The government responded that there is no definition of “official proceeding” in the statute nor is there any jury instruction for the term. The term “official proceeding” is in [statute] 1512. In addition, the defense can cross on the use of the term if they wish. The Court overruled the objection in open Court.]

151-152 – The BP sector evidence team conducts an investigation for administrative BP purposes and provides information to the chief patrol agent.

152 – The “primary responsibility [of agents involved in a shooting] is certainly to render aid, if there is anyone that is hurt, and then to preserve the scene, to make sure that the investigation can unfold in a proper way, for a number of reasons, to make sure that if, in fact, someone is injured we can determine whether it was a good shoot or was not a good shoot.”

152-153 – A “good shoot” is when the agent has legal authority and the circumstances warrant the use of deadly force. The BP needs to be certain an agent had a good reason to use deadly force – it’s a “matter of trust.”

153-155 – If the BP finds out a weapon was discharged and not reported, that triggers an investigation to find out why no report was made and can result in charges against the agent for misconduct in office. In addition, if someone was shot, it will trigger an FBI investigation regarding a civil rights’ violation and may be referred to the US Attorney and/or a federal grand jury for prosecution.

155 – In a shooting incident, an agent is required to make an oral report but he can make a written report if he wants to. Anyone who receives a report of the shooting should write a memorandum. An I-44 outlining the facts should also be done. The paperwork is prepared to document the facts.

155-156 – If criminal proceedings occur, the BP’s administrative proceedings and internal investigations are held in abeyance until the outcome of the criminal trial. Administrative proceedings for agents on administrative duty will not occur until this trial is completed. The administrative proceedings “take a backseat” to the criminal trial.

156-157 – If an agent does not report a shooting, there is no document generated and that affects the BP’s ability to investigate the incident.

157-158 – Regarding assaults, if an agent is assaulted he prepares a memorandum and form G-725 (a statistical form more than investigative) as evidence of the assault. Assaults are reported to the FBI in consultation with the US Attorney’s office, both of which are federal government agencies. The goal is to get the person who assaulted the agent prosecuted, and Barker said his jurisdiction was “pretty good in getting them prosecuted.”

158 – A report is not generated if the agent doesn’t report an assault. The supervisor’s responsibility is to ask whether there has been an assault.

158 – If there isn’t an assault, that doesn’t prevent the agent from preparing documentation.

158-159 – The point is to get the person prosecuted [who committed the assault] so the agent shares the responsibility to document [with the supervisor].

159-160 – If an agent shoots at another person in circumstances that do not justify deadly force, even if it doesn’t hit them, that’s an assault. If the person is actually hit and no deadly force was justified, that’s also an assault.

160 – The BP investigates assaults and would contact Mexican authorities if the person flees to Mexico and the Mexican authorities investigate, too. The working relationship between the 2 governments at the El Paso level is good.

160-161 – The BP wants to know if an agent assaults someone so the incident is fully investigated and the agent can be held accountable. It wouldn’t matter if the person assaulted had committed a crime. Carrying a load of marijuana is not a reason to shoot someone.

161-162 – When an agent is suspended with pay (“which we don’t do, normally”), they are put on administrative duty and report in telephonically.

162-163 – An agent that is suspended without pay is put on indefinite suspension, and that can be appealed. Agents placed on indefinite suspension are given notice and have 7 days to appeal by responding orally or in writing.

163 – Compean was given a notice of proposal to put on indefinite suspension. [Barker identified Compean in the courtroom.]

163-164 – Barker had an oral meeting with Compean [presumably Compean appealed his indefinite suspension but this wasn’t stated] and with Compean’s union representative and a person from the labor employee relations’ office.

164 – Non-supervisory BP agents have a union and they are represented by the union in situations like this. When a shooting involving a BP agent is reported, “normally the union – a union official shows up at the scene, or at the station, to make sure that agent’s rights are safeguarded.” The BP normally lets the union know what’s happening so they can go to the scene or the station if they want.

164-165 – Barker does not think that it’s part of the collective bargaining agreement for a union representative to advise an agent about criminal proceedings.

165 – Barker met with Compean and his representatives on April 7, 2005, and April 28, 2005. Barker taped the meetings. The purpose of the meeting is for the agent to give reasons why the BP should not put him on indefinite suspension. The union representatives often do most of the talking. Compean’s union rep was Robert Russell.

165-167 – [Barker identified the transcript from his April 28, 2005, meeting with Compean.] During the 4/28/05 meeting, Compean told Barker that he didn’t report the shooting because “I just didn’t.” Compean said he “knew it was wrong for us not to report it.” He would have reported it “he had been hit or anything like that had happened”.

“Q. What else did he tell you in response to that question?
A. He said, I knew — I knew we were going to get in trouble, because the way — the way it’s been at the station for the last two or three years. I mean, everything always comes down to the alien. The agents are — as soon as anything comes up, it is always — always the agent’s fault.
Q. What else did he tell you?
A. The agents have always been cleared, but management — but, with management, it’s always been the agent’s fault.
Q. Okay. But he says the agents have always been cleared, right?
A. Yes.
Q. And then one more thing that he said?
A. And he said, We are the ones that get in trouble.
Q. Is that true, Agent Barker?
A. No.”

167-168 – Compean told Barker that he didn’t think the alien had been hit and there wasn’t a conspiracy to keep the shooting secret: “The way I saw him walking back south, he looked — pause — he looked fine to us. And we didn’t — no, we just didn’t. Nothing was ever said as to don’t say anything, keep your mouth shut. Nothing like that was ever — was ever brought up, either. We just — pause — we just didn’t bring it up.”

168-169 – Barker doesn’t recall Compean say that he saw the alien limping.

168-170 – Compean volunteered that he told Richards about the assault on the levee – that he told Richards the alien “threw dirt in my eyes [and] we wrestled for a bit.” Compean wasn’t aware he had a cut on his hand and chin until [Richards/another agent] told him. When Richards asked again at the station, the way he asked made Compean think Richards wanted him to say no [there was no assault] and that’s why he said it. So Compean told Richards, “You know what? I’m fine. I’m okay. *** Nothing happened.”

170-171 – Barker did not take action against Richards because there was nothing that said Richards did anything improper. Even if Richards’ tone had been discouraging to Compean, that did not prohibit Compean from filing a report.

171 – Compean volunteered his explanations to Barker, and he never said that the man fleeing across the river had a gun or something shiny in his left hand. If Compean had told Barker that, it is possible it would have figured into his determinations.

Ramos cross-examination (by Mary Stillinger):

171-175 – [Bench conference regarding defense counsel’s request to set aside the motion in limine in order to question the witness regarding relations with Mexico and problems with the Mexican military due to the direct testimony of good relations between Mexico and the Border Patrol. Barker’s testimony implied that, if only the defendants had reported what happened, Mexico would have captured the alien and prosecuted him. The government responded that it didn’t open the door but was responding to questions by the defense to Aldrete-Davila regarding contacts with the Mexican government. In addition, Barker was not vouching for the Mexican government but was explaining the investigation process. The Court ruled that defense counsel could not ask questions about the Mexican military or about specific incidents along the border, but could ask about “problems that American authorities have had with cooperation of Mexican authorities with respect to drug laws.”]

175-176 – There is an inquiry into every reported shooting, but some inquiries go deeper than others.

176-177 – The shooting review committee no longer exists and did not exist in February 2005. The shooting review committee’s responsibilities were taken over by the DRB – the disciplinary review board. The DRB handles cases where the penalty is more than 14 days. The headquarter BP handles cases where the penalty is less than 14 days. These procedural changes occurred when the BP merged with other agencies in the Customs and Border Protection (CBP).

177-179 – The investigation makes the initial determination whether there was a good or a bad shoot. Initially, the report goes to the headquarters BP to document the shooting occurred. The report to the DRB does not occur until the administrative process runs its course.

179-180 – Barker used the term “official proceeding” to refer to the BP investigation and not to 18 USC 1512, the obstruction of justice statute.

180-181 – When there is a shooting, an agent’s first duty is to render aid. The first priority is the agent and then any others who are involved. Barker expects other agents to go help if they hear shots fired in the course of a foot pursuit between an agent and a suspect, and then to check whether anyone was wounded. That would be the agent’s first duty before securing the scene. “The safety of the agent and anyone who might be injured is — would be primary.”

181 – Barker remembers a case where an agent was stuck with a needle by someone he was arresting, but he doesn’t recall if it was Ramos and he doesn’t know if the case was prosecuted.

181-182 – Barker reiterated that US and Mexican law enforcement have a good working relationship on the local level. He doesn’t know of any specific instances of problems with Mexican law enforcement with respect to enforcement of drug laws on some occasions” but “the Mexican liaison unit that works tirelessly to make sure that in instances like these we get a response. Can I say that every time they respond? No, they don’t. But it’s better than some — most locations.” The agencies cooperate because the US cannot continue a pursuit across the border.

182-183 – In determining the validity of a shoot, it doesn’t matter if the victim was smuggling drugs. You can’t shoot someone just because they have a load of marijuana. It doesn’t matter how much marijuana there was, and it doesn’t matter if the suspect led agents on a chase. However, the agent could consider all circumstances in determining whether to use deadly force.

183 – By itself, the agent could not use deadly force because the suspect fled when agents told him to stop. However, the fact that the suspect had ignored repeated orders to stop would be a factor that the agent could take into account when evaluating whether or not the person’s a danger.

183-184 – In evaluating whether a suspect is a danger, an agent can also take into account that he heard shots being fired from the area where the suspect is because it’s reasonable to think the suspect may be shooting.

184-185 – In deciding whether to shoot, an agent could definitely take into account if he thought he saw the suspect turn around and point something that looked like a gun. That might put the agent in fear for his life.

185 – Reasonableness must be viewed from the agent’s perspective at the time and not in hindsight. That’s part of the firearm policy.

Compean cross-examination (by Chris Antcliff):

185-186 – The BP has tons of policies. Violation of those policies carries administrative penalties that range from nothing, to a reprimand, to suspension and to termination.

186-187 – The BP decided to suspend Ramos and Compean indefinitely. That decision was made easier by the indictments. An agent has an opportunity to respond to an indefinite suspension and Compean did that in 2 meetings with Barker. Compean only spoke at 1 meeting.

187 – Compean told Barker that he had told Richards he was assaulted.

187-189 – Barker based his decision to indefinitely suspend Compean on what Compean said and on the case file that had been prepared by the labor employee relation section. They do not interview other agents. They compile the case file by putting the available documents in the official record in the file. Barker doesn’t remember seeing any statements that other agents knew of an assault on Compean that day. It would not have made a difference in his decision to indefinitely suspend Compean if he had known that. Barker suspended Compean because of the seriousness of the case, but it would have been relevant to his thinking.

189-190 – When he was in the El Paso sector, Barker decided who was promoted with input from his staff and the first-line supervisors at each station.

190 – Barker had to trust his management team and that his supervisors and agents were upholding the US laws and the BP policies. Barker would want to know if anyone violated policy.

190 – Barker did not personally investigate any of the allegations that resulted in Compean’s indefinite suspension.

Government redirect examination (by Debra Kanof):

190-192 – “Q. And if a shooting isn’t reported, is that a factor that investigators would take into consideration in determining whether or not it was a good shoot?”

[Defense objected that this was a matter for the jury and that the defense didn’t ask how the BP makes a determination on good shoots. The government responded that the defense opened the door with questions about what constituted a good shoot. The Court overruled the objection and allowed the question.]

192 – The fact that the agent did not report the shooting and the BP found out about the shooting from a third party affected the investigator’s determination of whether or not it was a good shoot.

192 – Barker had no indication that Richards had done anything wrong other than what Compean told Barker.

Ramos recross-examination (by Mary Stillinger):

192-193 – If the person that was shot had a weapon when he was shot, that would be an important factor in deciding whether this was a good shoot.

193 – Barker knew that Aldrete-Davila had filed a lawsuit against the US but he doesn’t recall if he knew about it at the time of his meetings with Compean.

193-194 – If Barker had known that Aldrete-Davila filed a claim for $5 million and that he had committed a serious offense against the United States, and that he was the only witness that said he didn’t have a gun, that would make it a difficult question to evaluate his credibility. It’s hard for Barker to say how he would have considered it because he didn’t have facts about a gun.

Compean recross-examination (by Chris Antcliff):

194-197 – Ramos and Compean are still on indefinite suspension and have not been terminated. It’s possible they could be reinstated at some point. The failure to report a discharge is a violation of BP policy and carries an administrative penalty.

197 – [Witness excused.]

197 – [Court in recess for midafternoon break.]