Ignacio Ramos’ 3rd and last witness (excluding the sealed testimony) was Border Patrol agent and union Vice President Robert “Rob” Russell:

From Transcript XIII:

Ramos direct examination (by Stephen G. Peters):

125-126 – Robert Russell has been a US Border Patrol agent for 8-1/2 years and has been stationed in El Paso for the last 6 years.

126-127 – Russell has served 3 years as the Vice President of the local union, Local 1999 of the National Border Patrol Council. [The Court sustained a prosecution objection to a leading question.] Russell has been active in the union for more time than 3 years.

127 – The union’s function includes “representing agents individually on disciplinary cases, as well as the bargaining unit as a whole, all the employees in the sector.”

127 – In representing agents in disciplinary cases, “if the agency proposes a disciplinary action against an employee for something happening on duty, usually violating a rule or a policy, or something that took place at the station or the field, once it’s proposed, we represent them, if they request it.”

127-128 – Union representatives only assist employees in administrative proceedings. In administrative proceedings, “[t]he employees [sic] propose some type of discipline, depending on what the allegation may be. We take the case file, request the information, prepare documents, usually a written and an oral response, meet with management from the agency, usually an A-chief or the chief himself, present our case, and wait for a decision to be reached.”

128 – [In response to a question asking him to explain the term “past practice,” Russell initially mentioned how it is defined in case law. The Court sustained a prosecution objection that Russell could not testify to case law because he isn’t an attorney.] Without referring to case law, Russell defined “past practice” as:

“The past practice, for the union, we utilize that where the agency establishes a certain way of doing things. Usually — whether it be anything from how we handle situations on the line, the policies, procedures. Sometimes they can be doing something a certain way for such a long period of time, the agency may come out and create a whole new policy. And in most cases, if that happens, the union will intervene, because the past practice is established for the employees to do it a certain way, usually remains that way. They are not supposed to change it.”

128-129 – If an employee is brought up on administrative charges, past practice is a defense to a charge of violating a written regulation. That happens in about half the cases Russell has dealt with.

129 – [The Court sustained a prosecution objection to leading.] In an employee disciplinary proceeding, when a written policy differs from a past practice, the agent is required to follow past practice. This is commonly upheld in administrative proceedings Russell has been involved with. “It usually comes down to past practice being the precedent.”

129-130 – Russell is familiar with the Border Patrol Enforcement Tracking System known as BPETS. He uses it for doing scheduling, picking days off “and stuff.” Access to the BPETS system varies. When Russell was a supervisor, he had access to multiple stations. Some agents are limited to their specific station. Some agents get broader access than others, even if they aren’t supervisors. “Intel agents, supervisors that may be acting in the capacity of a supervisor” may get broader access. To Russell’s knowledge, a normal Border Patrol agent only has access to [his] station.”

Government cross-examination (by Debra Kanof):

131 – The collective bargaining agreement does not permit Russell to give criminal legal advice. Russell denied that he gives criminal legal advice “all the time.”

131 – [The Court sustained an objection to the following question and answer because it was outside the scope:

“Q. You gave Mr. Jacquez criminal legal advice in this case, and you told him, Take the Fifth, when the Government wants to talk to you, didn’t you?
A. Yes, ma’am, I did.”

131-132 – [The defense objected to the following prosecution question: “Q. You were present when Chief Barker interviewed both Mr. Compean and Mr. Ramos, correct?” The prosecution argued this question went to past practice. The defense argued it was outside the scope of direct testimony. The parties approached the bench for a conference.]

[NOTE from DRJ: Compean’s counsel, Christopher Antcliff, did much of the argument in this bench conference and repeatedly stated these questions were “outside the scope of MY direct.” However, Ramos’ counsel, Stephen G. Peters, is the only defense attorney who questioned Russell on direct. Antcliff didn’t ask any questions of Russell. I’m not sure if Antcliff was speaking on behalf of both defendants or if the transcript is in error and it was actually Peters who made the statements that were attributed to Antcliff. It probably doesn’t matter but it is confusing.]

132-133 – [Bench conference: The prosecution asserted a right to cross-examine regarding past practice and, ultimately, the defense agreed that the prosecution should be able to do that. The primary focus of the discussion involved any defense effort to prevent the prosecution from questioning Russell about whether Ramos and Compean asserted past practices as a defense in their administrative proceedings:

“MS. KANOF: I never heard of past practice before this very moment, Your Honor. And the reason is because he was present at both of the hearings with Barker. He asked about the shooting, and he never invoked past practice, and he did most of the talking.

MR. PETERS: Past practice goes into what you invoked in this trial, which is the pursuit policy, which was not an issue in those hearings, and really shouldn’t be an issue in the trial. But you opened the door, and we’re entitled to show violations of minor technical written regulations that are not necessarily –“

Ramos’ and Compean’s attorneys did not invoke past practices as a defense at the administrative proceedings, in part because they were not present at those proceedings. All the defense is trying to establish with Russell is that “sometimes the procedures the agents are required to follow, expect to follow, and allowed to follow, are not exactly what’s written down on that paper.”

The Court and the defense agreed that the prosecution is allowed to cross-examine on the defense contention that everything that happened is past practice, but it did lead to this humorous exchange and the Court’s ruling:

“MS. KANOF: I’m sorry, Your Honor. I didn’t understand the ruling.

THE COURT: Well, then, welcome to my world. Half the time I don’t understand your objections. What I said is that he has alluded to an issue regarding past practice. I have no problems with you cross-examining about the issue of past practice. I don’t want to get into what was invoked at some hearing. They don’t even know about this hearing. It’s way too confusing. It has nothing to do with it.”]

(End of bench conference.)

136 – Russell does not believe it is past practice “not to report a discharge of a firearm within an hour of its discharge.”

136 – [Witness excused.]

136 – [Subject to the completion of his pending bill of exceptions, Ramos rested.]

136 – [Court in recess.]