Lots of legal talk in this intermission after the Government rested its case and the defense case begins. The primary issue discussed by the attorneys was 18 USC 1512, a federal criminal law statute that, insofar as it applied to this case, deals with obstruction of justice. There was also discussion of a similar federal statute, 18 USC 1001, that I believe is the statute involved in the Libby case.

I was impressed with the argument by Ramos’ attorney, Stephen G. Peters, regarding the Garrity and Calkin cases that address the Goverment’s ability to criminalize a defendant law enforcement officer’s failure to file inculpatory reports. Like Peters, I’m concerned that a law enforcement officer has an affirmative duty to make an administrative report but can be criminally sanctioned for his failure to comply. However, the Court did not share that view.

I was also interested in the defense argument that 18 USC 1512 requires an overt act, another argument that did not persuade the Court.

From Transcript XII:

Court Matters After the Government Rested Its Case: (pp. 122-151)

123 – Defendants presented a Rule 29 motion to dismiss all counts and a Motion to acquit on counts 8 and 9 on the ground of insufficient evidence. Ramos’ attorney spoke first.

[NOTE from DRJ: A Rule 29 motion refers to Rule 29 of the Federal Rules of Criminal Procedure, the procedural rules that apply to criminal cases in federal courts. Rule 29 allows a defendant to file a Motion for a Judgment of Acquittal “after the Government closes its evidence or after the close of all the evidence” requesting the court to “enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction.”]

124-127 – Argument by Ramos’ attorney (Stephen G. Peters):

Counts 8 and 9 are both obstruction counts:

Count 8 alleges that the defendants “corruptly obstructed, influenced, or impeded an official proceeding, or attempted to do so by failing to report to the appropriate authorities the discharge of a firearm.”

County 9 alleges that “by failing to report to authorities, having a duty to do so, [each defendant] was corruptly altering, destroying, mutilating, or concealing a record, document, or other object, or with the intent to do so.”

Peters argued that these counts “do not state an offense against the laws of the United States” for two reasons. First, it attempts to punish Ramos for failing to incriminate himself orally and failing to make a statement against his penal interest: “Under the Government’s theory of the case, his administrative duty to reveal that he had discharged a firearm would have been inculpatory if he had done so. And he cannot be prosecuted for failing to inculpate himself by an oral statement.” In other words, the failure to reveal an incriminatory fact cannot be the basis for an obstruction charge.

In support of this argument, Peters cited Gasho v US, 39 F3rd 1420 (9th Cir 1994), [a refusal to turn over a log book to federal officers who lacked a subpoena is not obstruction because the refusal was a valid exercise of defendant’s Constitutional right to refuse a warrantless search and seizure] and Fillmore v Ordonez, 829 F.Supp. 1544 (D.Kan.), affirmed 17 F.3d 1436 (10th Cir ___), [exercising the right to remain silent cannot give rise to an obstruction charge].

Peters also argued that violation of a civil regulation does not authorize criminal charges, citing US v Christo, 614 F.2d 486 (5th Cir 1980), [Government cannot equate the violation of a civil banking regulation with a criminal statute violation] and US v Butler, 429 F.3d 140 (5th Cir. 2005), [Fifth Circuit interpreted Christo to mean, “civil regulations cannot be used to establish criminal liability”]. At the beginning of the trial, defendant(s) requested a jury instruction based on this line of cases and US v Kendig (1988), [defendant allowed an instruction that a violation of a civil regulation, while it could be considered as evidence, could not by itself amount to a criminal violation].

Since the only evidence of obstruction by Ramos was his failure to report the discharge of his firearm, Peters argued that there was insufficient evidence of obstruction and Ramos should be acquitted on Counts 8 and 9. Peters also asked that the record reflect Ramos requested an acquittal on all counts under Rule 29. Peters did not offer any cases or argument in support of his Rule 29 motion.

[NOTE from DRJ: See also Peters’ rebuttal argument beginning at p 143, where he clarified that the obstruction counts were not criminal offenses because the Government can’t criminalize a defendant’s failure to act and argued there must be an overt criminal act.]

127-134 – Argument by Compean’s attorney (Maria Ramirez):

Ramirez addressed each Count and requested a directed verdict or a judgment of acquittal on the basis that the Government failed to prove every element of the offense.

[NOTE from DRJ: In most instances, Ramirez stated there was insufficient evidence to support a specific Count but did not elaborate. Any further argument made with regard to a specific Count is included below.]

Count 1 – Compean aided and abetted and assaulted Aldrete-Davila with the intent to commit murder.

Count 2 – Compean assaulted Aldrete-Davila with a dangerous weapon with intent to do bodily harm.

Count 3 – Compean assaulted Aldrete-Davila and the assault resulted in serious bodily injury, by shooting him with a firearm.

Count 4 – [Not discussed – this may relate solely to Ramos or perhaps Compean does not contest this Count.]

Count 5 – Compean knowingly discharged the firearm in relation to a crime of violence.

Count 6 – [Count 6 involved obstruction charges brought regarding Compean’s collection and disposal of the shell casings.] Compean objected that “the Government failed to prove that, one, that the casings could not be used in an official proceeding, and that they could not be used for the presentation of the circumstances of the shooting of OAD to a federal grand jury, or for other facts and circumstances of the shooting of OAD to a jury trial.” In addition, Ramirez later argued that the Government failed to prove that the casings were material.

[NOTE from DRJ: I didn’t understand this argument.]

Counts 7 and 8 – Compean filed a separate motion for acquittal on Counts 7 and 8 and adopted the arguments made by Ramos’ attorney, above, that criminal charges couldn’t be based on actions that burden a Constitutional right. The Government cannot force people to inculpate themselves and when/if Compean was compelled to state, “I discharged the firearm today.” then he would have been forced to incriminate himself in violation of his Fifth Amendment right.

Ramirez also cited US v Prescott but she “didn’t get a chance to look at that case. But I did cite it to the Court, because it was — in the motion, because it was cited in Gasho.”

[NOTE from DRJ: This isn’t important to the case but it’s rare for an attorney to admit s/he cited a case s/he had not read.]

Count 10 – “Compean, having an affirmative duty pursuant to US Border Patrol rules and regulations to report the discharge of a firearm, provided to him for his use in the capacity of a US Border Patrol agent, failed to report that he had discharged his .40 caliber firearm when he shot at OAD, which firearm had been provided to him by the US Border Patrol for his official use, and which failure to report impeded the generation of a written report and document, preventing said document from being available in an official proceeding.”

Ramirez reiterated that the Government couldn’t claim that “violating a civil regulation is equivalent to violating a criminal statute.”

Count 11 – “On or about the above-mentioned date, … Compean, acting under the color of law as a Border Patrol agent, attempted to strike OAD with a shotgun, while OAD was detained by the defendant.” Ramirez argued that there was no evidence Aldrete-Davila was ever detained. Instead, the evidence was that “he was never touched by any of the agents, either at the ditch or at any other time when he got to Jess Harris Road, when he got to the ditch, and then when he ran south towards the Rio Grande.”

134-142 – Argument by the Government (Debra Kanof):

Kanof began by addressing Section 1512, a statute enacted in 2002. Kanof stated that the main and most recent case under this statute involved Arthur Andersen and the shredding of Enron documents.

[NOTE from DRJ: Here is a Cornell link to 18 USC Section 1512, an obstruction of justice statute. Here’s another link to a brief discussion of the consequences of its use in the Arthur Andersen case.]

According to Kanof, the Arthur Andersen case involved 18 USC 1512 subsection (b). The charges in this case were brought under 18 USC Section 1512 subsection (c). Kanof stated there are no cases under subsection (c), which provides:

“(c) Whoever corruptly—
(1) alters, destroys, mutilates, or conceals a record, document, or other object, or attempts to do so, with the intent to impair the object’s integrity or availability for use in an official proceeding; or
(2) otherwise obstructs, influences, or impedes any official proceeding, or attempts to do so,
shall be fined under this title or imprisoned not more than 20 years, or both.”

Because of the dearth of case law construing 18 USC 1512(c)(1), the Government referred to other criminal law statutes to decide if failure to file a report would constitute “conceal[ing] a record, document, or other object … with the intent to impair the object’s integrity or availability for use in an official proceeding.”

The same terminology appears in 18 USC 1001 and “in Title 42, under certain Social Security violations, and in Title 31, under certain money laundering, specifically, the failure to file a currency transaction report.” The most analogous is 18 USC 1001, which provides that “a person commits a crime if they knowingly and willfully falsify, conceal, or cover up, by trick, scheme, or device, a material fact.” The case law under 18 USC 1001 defines “concealed” as having “an affirmative duty to report something and failed to do so.” Kanof did not submit any case law in support of this argument but referenced the cases submitted earlier in support of the jury instructions on these points.

Count 6 involves 18 USC 1512(c)(1) and (2) regarding concealment of shell casings in connection with an “official proceeding,” which Kanof argued included the “investigation by Border Patrol, an investigation by DHS-OIG, and investigation by the grand jury, and this jury itself.”

Kanof stated the disputed counts are ## 9 and 10, both of which allege a violation under 18 USC 1512(c)(1) for failure to report the discharge of a firearm. Kanof agreed that the mere failure to follow a regulation that’s imposed by a law enforcement agency, or any federal agency, is not a criminal act. However, the reporting of a firearms discharge, by itself, is not incriminating so it can’t be illegal for the Border Patrol to require that its agents report discharges. The crime occurs when an agent makes a false report or fails to file a required report if the act/failure impedes an official report and proceeding. Kanof argued that Ramos’ and Compean’s failure to make a report of discharge impeded the official proceeding that investigated the underlying incident. Thus, the failure to act was not incriminating and impeding the investigation was the criminal act.

Similarly, the failure to file a tax return or a banking currency report may be criminal. It becomes criminal when you consider the motive for the failure to report.

Counts 7 and 8 are allegations under 18 USC 1512(c)(2) where the general conduct is not pursuant to an affirmative duty to act but nevertheless is “corruptly obstructing, influencing, or impeding an official proceeding.” Kanof submitted that there was evidence that Ramos and Compean had impeded an official proceeding. The Government’s burden is to show an elevated “mens rea” or knowledge of corrupt conduct that impedes an official proceeding.

Kanof reiterated that Ramos and Compean did not follow Border Patrol rules that day when they failed to follow the rules regarding pursuit, deadly force, destroying the scene, calling out a SET [sector evidence team] team, and reporting a firearm discharge. Each “would have triggered an official proceeding.”

Kanof disagreed with the argument by Compean’s attorney, Ramirez, that there was no evidence Aldrete-Davila had been detained: “There’s all kinds of United States Supreme Court law on the fact that shooting somebody in the back is detaining them and violating their Fourth Amendment right.” In addition, “assault does not require someone to be successful. An assault can be shooting at someone. It doesn’t have to be actually hitting somebody.”

[NOTE from DRJ: I thought assault required some touching, however minimal, otherwise it’s attempted assault. Maybe attempted assault was a lesser-included offense under this Count.]

In conclusion, after consulting with “Mr. Garcia, her attorney,” Kanof stated there was sufficient evidence to justify submission of the criminal counts to the jury.

143-145 – Argument by Ramos’ attorney (Stephen G. Peters):

Peters clarified that the obstruction counts were not criminal offenses because the Government can’t criminalize a defendant’s failure to act. Peters argued there must be an overt criminal act:

18 USC Section 1001 “says that an offense is committed when someone falsifies, conceals, or covers up by any trick, scheme, or device, or makes a materially false, fictitious, or fraudulent statement or representation, or uses any false writing or document, knowing the same to contain materially false — et cetera, et cetera, et cetera.

All those require an overt act. Every one of those requires some overt act. Even — even falsifying, concealing, or covering up by any trick, scheme, or device, requires an overt act. There is no overt act alleged here. It is merely a failure to make a statement.

Whenever the Government got a statement from any one of these agents, they gave them some form of immunity for it. And that’s because they had to, because they could not compel a statement.”

In addition, Peters argued that construing 18 USC 1512 to require an overt act is not inconsistent:

“I don’t have to be guilty of robbing a bank to refuse to give a statement to a police officer about it, because that statement may inculpate me, even though I believe I’m completely innocent, even though I am, in fact, completely innocent. And that right to not have to inculpate yourself by oral statements does not apply only to the guilty, it applies to the innocent, as well.
***
[T]he only allegation and the only evidence against Ignacio Ramos having anything to do with obstruction of justice is that he didn’t say, I shot my gun. The fact of shooting his pistol did not have to be — did not, in and of itself, have to amount to a criminal offense, for his failure to make that statement to be legally privileged under the Fifth Amendment. The Government does not have the power to burden nor — nor does Congress have power to burden the person’s exercise of his right under the Fifth Amendment not to make an inculpatory statement by making that act in any way criminal.”

The currency transaction is a different issue because failing to fill out the forms is itself a crime. The Border Patrol can impose administrative sanctions for failure to report but it can’t criminalize a non-criminal act nor can it impose burdens on the exercise of an individual’s Constitutional rights. In other words, the Border Patrol cannot compel Ramos to waive his Fifth Amendment rights.

If Ramos chooses not to comply with Border Patrol rules, the Border Patrol’s remedy was to burden Ramos’ employment, not his Fifth Amendment rights. In support of this position, Peters cited Garrity, Calkin, and a line of Supreme Court cases holding that “If you’re going to compel a police officer or a Government employee or any person to make a statement under penalty of losing their job, you’re going to have to immunize them from criminal penalties for these — that statement.”

145-147 – Argument by Compean’s attorney (Maria Ramirez):

Ramirez agreed with Ramos’ attorney that the Government couldn’t criminalize an act of omission and stated that an overt act is required.

With regard to the charges of impeding an “official proceeding,” Ramirez argued that law enforcement proceedings do not qualify as official proceedings as defined by 18 USC 1512, 1515:

“The other thing that I wanted the Court to consider is that, in Counts 8 and 9, I’m also asking for a judgment of acquittal because I think that the [Arthur] Andersen case made it very clear that — that, although there doesn’t have to be a proceeding — official proceeding pending, the Government has to prove — or there has to be at least some evidence that the defendant knew or could have reasonably foreseen that there was going to be some type of official proceeding. And official proceeding is defined, Judge. It’s defined in 18 USC 1515. And it states specifically what official proceedings qualify under this section. And it’s a jury trial, it’s a trial by jury, it’s a grand jury. And I don’t believe that a law enforcement proceeding, which is what Ms. Kanof is arguing, can be an official proceeding, as the Government has pled in Count 8 and Count 9 of the indictment.”

[Note from DRJ: Here is a Cornell link to 18 USC 1515, the definitions section that applies to 18 USC 1512.]

147-148 – Argument by the Government (Debra Kanof):

Kanof noted that 18 USC 1515 includes proceedings before a Federal Government agency which is authorized by law, and that the Border Patrol is a Federal Government agency.

Unlike a citizen who does not have an obligation to report a bank robbery to police, a federal law enforcement agent does have an affirmative duty.

As to whether concealment requires an overt act, Kanof stated:

“Concealment does not require an affirmative act. It does not require, as they termed it, an overt act to conceal, unless the statute specifically requires it. This statute doesn’t. Conceal is defined in the Government’s pattern jury instruction offerings to the Court. It comes right out of the pattern jury charge of another jurisdiction, because the Fifth Circuit doesn’t have it. And it does not require any kind of an affirmative act. But I will tell the Court that, when you have an affirmative duty to report something and you fail to do it, it is sufficient for concealment.”

[NOTE from DRJ: I wasn’t aware that pattern jury instructions could be used as sources for substantive law.]

148 – [The Judge took this matter under advisement and stated she would rule before bringing the jury back in. Court in recess.]

148 – [Court reconvened. Jury not present.]

148-150 – [Bench conference regarding the Government’s oral motion in limine requesting the Court prohibit references to one defendant’s minor child who was in the courtroom for the remaining examination of witnesses and oral argument:]

“KANOF: I’m going to make an oral motion in limine. I noticed that the child of one of the defendants is in the front row. I believe he’s 11 or 12 years old. Aside from the fact I think it’s child abuse to have a child watch you be cross-examined, in opening statement Ms. Ramirez mentioned that the – her defendant’s — her client’s wife was in the audience. I’m going to make a motion in limine that they not refer to the presence in the office of — presence, or point out in the audience any family members. I don’t think it’s relevant. I don’t think it’s appropriate.”

The Court took the matter under advisement, noting that mention of the family members should not be made during examination but that she would reserve a ruling on argument until that time:

“I don’t have any problems saying he’s married or got kids. But I don’t want — and your child — that the child is going to remain, let me be perfectly clear. I don’t want any motions. I don’t want any smirking. I don’t want any faces. I don’t want any crying. As much as you can control them.” It was apparently Ramos’ child since his attorney, Peters, represented to the Court that the child’s presence was a family decision and the attorneys didn’t know about it. The Court noted that she would want to be present if it were her father, but it “might be tough” on a 13-year-old to see his father cross-examined.

Stillinger asked that the limine order be “mutual, so Ms. Kanof won’t mention that it’s child abuse.”

150-151 – Before bringing the jury back in, the Court overruled Defendants’ motions for judgment of acquittal based on Rule 29 on all counts.

Next up: Ignacio Ramos.