Court of Appeals Affirms Sentence of Border Patrol Agents

This week the Fifth Circuit Court of Appeals affirmed the conviction of two men prosecuted for shooting at an unarmed man who was running away from them and then concealed evidence concerning the shooting. There is a twist however. The defendants were Border Patrol agents and the victim was a Mexican drug smuggler. This ruling will surely add to the outrage of conservative activists who can’t understand why federal agents were prosecuted for shooting a drug smuggler in the buttocks.

The unanimous ruling by three Republican appointees to the United States Court of Appeals makes it look pretty straightforward.

The Court said:

"The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on guilt or innocence of these agents."

However, this case touches a lot of hot buttons. There are federal agents prosecuted for their actions in trying to apprehend a drug smuggler. The drug smuggler was given immunity and allowed to come to the United States to testify against the agents. After that, he was caught smuggling drugs again. The Mexican government allegedly intervened to cause the prosecution. The agents received long sentences because of a federal statute which penalizes use of a firearm in a felony. To some, this is a case where a federal bureaucrat chose to punish law enforcement agents for just doing their jobs and to reward a foreign drug smuggler. However, the case is really about applying the law even when it is unpopular.

It Started Out With A Car Chase on February 17, 2005

Osvaldo Aldrete-Davila was a drug smuggler, but not a very lucky one. On February 17, 2005, he crossed the Rio Grande and climbed into a van filled with marijuana. Sensors alerted the Border Patrol to his presence and within minutes, agents gave chase. The smuggler tried to escape to Mexico, but got the van stuck in a ditch. He then got out and tried to run away when he was confronted by Border Patrol agent Jose Alonso Compean. Here the stories diverge. Compean claimed that he used his shotgun to push Davila back and lost his footing in the process. However, another Border Patrol agent testified that the suspect was standing with his hands raised when Compean took a swing at him with the stock of the shotgun. When the blow didn’t connect, the agent lost his balance and fell down. The smuggler didn’t need any more of an invitation to take off. As he ran toward the border, Agent Compean pulled out his revolver, emptied the magazine at him, reloaded and started firing again. Another agent, Ignacio Ramos, came on to the scene and fired one shot at the fleeing suspect. Despite being shot in the buttocks, the smuggler made it across the river.

At this point, the agents should have reported the shooting to their superiors. Instead, they picked up the shell casings, threw them in the river, smoothed over the sand and left.

A lot of controversy could have been avoided if the story had ended here. However, due to an unusual coincidence, the drug smuggler happened to be an acquaintance of another Border Patrol agent and mentioned his pain in the rear. The agent did some checking and was surprised to find out that no shooting incident had been reported. He then received permission from his superiors to investigate further. As it turned out, the slug was still buried in the suspect’s posterior. This posed a practical problem. The only way to figure out who shot the smuggler was to examine the slug. However, a drug smuggler who had been shot trying to evade the Border Patrol was unlikely to volunteer to come to the United States to have it extracted. As a result, a deal was cut for Sr. Aldrete-Davila to receive immunity if he would come across the border and testify. Examination of the slug led to Agent Compean. Further investigation uncovered the cover-up and charges were filed.

At this point, a few observations are in order. Up to the point where charges were filed, everyone involved was Mexican or Mexican-American. The drug smuggler was obviously Mexican. All six of the law enforcement agents involved were Hispanic. Therefore, this was not a case with any racial or ethnic overtones because everyone had the same background.

The prosecutor who filed the charges, U.S. Attorney Johnny Sutton, was no raging liberal. He was a Republican appointee and friend of President Bush. However, he came to be pilloried as a threat to national security.

The Trial

At trial, the agents claimed that Aldrete-Davila had something in his hand and was a threat to them. The jury apparently did not believe this story and voted to convict. The sentences imposed were harsh: 12 years for Agent Compean and 11 years for Agent Ramos. However, as the Fifth Circuit noted in its opinion, the sentences were virtually mandated by act of Congress.

“(W)e should note that the rather lengthy sentences imposed on the defendants—eleven years and a day and twelve years respectively—result primarily from their convictions under Sec. 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under the statute, the district court had no discretion but to impose at least a ten-year sentence.”

The Reaction

At this point all heck broke loose. Congressmen held hearings and made statements. According to published reports, U.S. Rep. Dana Rohrabacher claimed that the U.S. Attorney showed an “alarming pattern” of defending the rights of illegal immigrants over those of U.S. law enforcement officers. Twenty-one U.S. Representatives wrote to the White House and complained that:

“The extremely harsh prison sentences they received are unjustified in this case, and their prosecution and prison sentences have been demoralizing to other Border Patrol agents, which has undoubtedly harmed the security of our nation by causing Border Patrol agents to hesitate before using their weapons in defense of our borders against criminals and terrorists.”

CNN Commentator Lou Dobbs claimed that, “Sutton’s decision to prosecute the agents, to file attempted murder charges against them and seek harsh mandatory sentences was simply an outrage.”

The Los Angeles Times reported that:

“The case has become a cause célèbre among anti-immigration activists and advocates of stronger border security, who argue that it epitomizes the misplaced priorities of federal prosecutors as well as the absurd predicament of Border Patrol agents who must fight heavily armed criminals while using little or no force. Among the rules broken by the agents, supporters say, was a policy forbidding agents from giving chase.”

The story got even weirder when Don Swarthout, a Kentucky pastor and president of Christians Reviving America's Values filed an ethics complaint with the Texas State Bar against U.S. Attorney Johnny Sutton.    A statement released by the group alleged that the prosecutor "willfully misled the jury in order to convict Border Patrol Agents Ignacio Ramos and Jose Compean."     The pastor stated:

"This whole case stinks to the highest parts of heaven.  How is it possible in America to convict two border agents for simply doing their jobs and send them to prison for 11 and 12 years? How is it possible for Johnny Sutton's office to ruin the lives of two of our border agents based on the word of a known Mexican drug smuggler? Why did Johnny Sutton's office twist the facts of this case and hide evidence simply to get a conviction?"

The anger here is palpable.   However, the pastor like many other commenters seems to assume that shooting at an unarmed suspect who is running away constitutes "simply doing their jobs."    

Sens. John Cornyn and Diane Feinstein seemed positively reserved when they suggested that President Bush grant clemency for the agents.   Apparently the White House has not considered clemency because the agents have not asked for it.

The U.S. Attorney’s Office felt compelled to release a statement entitled “Response of the Government to Reporting Inaccuracies Regarding the Compean and Ramos Prosecution.” The final paragraph stated:

“Based on all of the evidence admitted during the two-week trial, including the lengthy testimony of both of the defendants, the jury of twelve citizens heard all of the testimony, judged the demeanor and credibility of the witnesses and unanimously found both defendants guilty beyond a reasonable doubt of eleven of the twelve counts alleged in the indictment, including assault with a dangerous weapon, assault with serious bodily injury, discharge of a firearm during the commission of a crime of violence and willfully violating Aldrete-Davila’s constitutional Fourth Amendment right to be free from illegal seizure, as well as obstructing justice by intentionally defacing the crime scene, lying about the incident, and failing to report the truth.”

What It Means

This is a case where application of the law is unpopular. The outraged parties claim that law enforcement is under siege from heavily armed terrorists and criminals. However, what was really involved here was the shooting of an unarmed suspect who ran away after an agent tried to club him with his shotgun. The conventional wisdom may say that it is okay to shoot a fleeing suspect, but the law as announced by the three Republican appointees on the Court of Appeals is:

“It is well established that the Fourth Amendment to the United States Constitution does not permit officers to shoot a fleeing suspect unless the suspect poses a threat to the physical safety of the officers or to the public”

For a public raised on Dirty Harry, this may seem outrageous. However, the same law that allows a drug smuggler to escape to Mexico, prevents the police from shooting an innocent bystander who made the bad choice to run away from a crime scene.

The sentences in this case were harsh. However, that is what Congress mandated. The Court of Appeals correctly found that the statute did not contain an exception for law enforcement personnel in the course of their duties and had been applied in other cases where law enforcement illegally discharged a firearm. If Congress wants an exception for law enforcement, they should write it into the statute rather than insisting that judges do their work for them.

At the end of the day, Sens. Feinstein and Cornyn may have the more sensible position. The sentence is legally correct, but harsh. If President Bush could commute the sentence of Scooter Libby, he could commute the sentences of these agents as well.  They have already served enough time to realize the seriousness of their actions.  Clemency exists to end a prison sentence where there are extenuating circumstances surrounding an otherwise legal verdict.   The irony here is that the very Congressmen who are screaming about the outrage wrote the law that led to the long sentence.   While they may not have anticipated this result, it is their job to write the law.  This might be a good case for the President to use his clemency powers. That would be a lot more honest than claiming that the Republican prosecutor, the Republican trial judge and the three Republican court of appeals judges did something wrong.