Border Agents' Sentences Upheld

Remember the two border agents who shot an unarmed drug dealer at the Mexican border? After their conviction, right wing politicans like Tom Tancredo were outraged at their 11-12 year sentences and introduced a bill (pdf) in Congress to prevent federal funds from being used to incarcerate them. They also clamored for a pardon from President Bush.

Today, the 5th Circuit Court of Appeals upheld their senttences and the most serious of counts against them.

The Court said this was a classic he said- he said situation. The Government's facts differed from the border agents' facts, the jury was provided both and chose to believe the Government. As to the sentence, maybe if President Bush doesn't pardon them, those right wing politicians will take a second look at the harshness of mandatory minimum sentences: [More...]

From the opinion (pdf):

In this prefatory statement we 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 § 924©. 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 this statute, the district court had no discretion but to impose at least a ten-year sentence. Thus, the sentences in this case reflect the mandatory ten years for violation of § 924©, and one year and a day and two years, respectively, for the remaining several convictions.

As to the Government's evidence:

The government’s evidence showed that the agents had no reason to shoot the drug smuggler —that he had abandoned his van loaded with marijuana, that he was running on foot back to Mexico, that he posed no physical threat to either officer, and that he was shot in the buttocks. 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.

The agents' evidence:

They testified that they saw something appearing to be a weapon in the drug-smuggler’s hand, that the situation was tense, that they felt in danger, that they acted as reasonable officers in pursuit of a possibly dangerous drug smuggler, and that firing a weapon was justified.Furthermore, they testified that their failure to report the incident was only a matter of negligence.

As to Aldrete-Davila, the drug runner who got shot:

Aldrete-Davila is a drug trafficker. On the day he was shot, he had agreed to transport drugs already located in the United States. He illegally crossed the border on February 17 in order to reach a van that he had agreed to drive. The van was parked near Fabens and contained a large load of marijuana. The keys to the van were already in its ignition, and Aldrete-Davila began driving it towards Fabens.

The agents spotted the van, a chase ensued, the van got stuck in a ditch, and Aldrete-Davila was shot. His version:

Aldrete-Davila denied turning around and denied having any object in his hand. He instead insisted that he simply ran towards the border, saw dirt being kicked up around him by bullets, and then fell, feeling a burning sensation in his left buttock. He testified that he waited for Ramos and Compean to arrest him, but saw them turn away. Aldrete-Davila eventually made it back over the border. He was apparently met by the drug traffickers for whom he was working and was taken to a medical facility. The bullet fired by Ramos had fragmented, severing Aldrete-Davila’s urethra.

As to the crime: There was a cover-up:

After the incident, there was a “cover-up”—including a clean-up of the area of spent shells and a failure by the two agents to report the weapon-firing incident, as plainly required by well-established Border Patrol policies.

The charges:

The indictment charging Ramos and Compean enumerated twelve counts. These counts included charges for attempted murder, criminal assault, unlawful discharge of firearms, tampering with official proceedings, and criminal deprivation of civil rights. After a lengthy trial, Ramos and Compean were found guilty on all charges save attempted murder, for which they were acquitted.

The Court reversed the convictions on five obstruction of justice counts relating to their failure to report the discharge of their weapons, finding that the initial Border Patrol investigation into what happened was not an official proceding.

But it upheld the convictions for assault, discharge of a weapon in the commission of a crime of violence (the assault) and deprivation of civil rights.

Returning to credibility and whether there was sufficient evidence to convict:

The defendants’ argument here is one to which they repeatedly return: they were justified in firing upon Aldrete-Davila. But, once again, we must remind the defendants that the jury did not believe the defendants’ testimony that Aldrete-Davila possessed an object in his hand.

Aldrete-Davila’s own testimony, the behavior of the defendants after the shooting, and the inconsistent testimony offered by both defendants and other Border Patrol agents allowed the jury to conclude that the defendants faced no credible threat and, consequently, there was no justification for their firing upon Aldrete-Davila.

Although disputed, the evidence, taken in the light most favorable to the jury verdict, supports the scenario that Aldrete-Davila fled toward the Mexican border after Compean took a swing at him with his shotgun and that, while he was in flight, the defendants without provocation fired their weapons at him several times.

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  • Display: Sort:
    Sounds like a good call if everything said (none / 0) (#1)
    by PssttCmere08 on Mon Jul 28, 2008 at 11:18:24 PM EST
    is correct...

    Viva Bush! (none / 0) (#2)
    by LonewackoDotCom on Tue Jul 29, 2008 at 12:31:47 AM EST
    There's a ton of information out there on this case, and those who want to hear the other side can easily find it. Based on something I read, it appears that the claim that they failed to report the incident is false: there were supervisors present, and R/C weren't able to file written reports, only those supervisors could do that.

    Further, the prosecutor is a Bush buddy. But, I guess in the liberal mind that's outweighed by the fact that the Mexican government complained about it. If they aren't happy, we need to do what we have to do to make them happy.

    Ah (none / 0) (#3)
    by Steve M on Tue Jul 29, 2008 at 12:34:45 AM EST
    Somehow I knew this particular commentor would show up quickly!

    The hardcore anti-immigration zealots perceive these two guys as Jesus-level martyrs, it seems.  It's really quite amazing.


    he always does (none / 0) (#4)
    by Jeralyn on Tue Jul 29, 2008 at 12:46:59 AM EST
    whenever the topic is immigration. He never misses a beat in that regard.  I thought I was the only one who noticed.

    By the way, a publisher sent me a book about their case, thinking I would write about it and take their side. I got through the first few chapters and tossed it.


    Well (none / 0) (#5)
    by Steve M on Tue Jul 29, 2008 at 12:52:52 AM EST
    It's just so noticeable because he shows up at so many blogs.  Apparently everyone in America except for him and Tom Tancredo has shady connections to the Mexican_Government and cannot be trusted.  It's a hoot.

    You like to purposfully (none / 0) (#6)
    by Wile ECoyote on Tue Jul 29, 2008 at 05:38:18 AM EST
    mix legal immigration with illegal immigration, don't you?  There is a difference.

    Non-"liberal" coverage of immigration (none / 0) (#7)
    by dead dancer on Tue Jul 29, 2008 at 07:44:05 AM EST
    As per the Wacko blog:


    Non-"liberal" coverage of immigration,

    Somehow, i don't think LW pays much attention to "legal" status either.

    Anyway, this particular thread deals with
    attempted murder, criminal assault, unlawful discharge of firearms, tampering with official proceedings, and criminal deprivation of civil rights


    Well (none / 0) (#12)
    by Steve M on Tue Jul 29, 2008 at 10:55:36 AM EST
    I find the anti-immigration folks tend to use that distinction as a fig leaf without any sort of real meaning, so yeah.

    Nice Post (none / 0) (#8)
    by Jgarza on Tue Jul 29, 2008 at 08:59:48 AM EST
    I think Lou finally dropped this one.  When he would talk about it he always tried to keep it as vague as possible, you know keep the facts out.  Just keep at shot illegal mexican drug dealer.

    The really ironic part of this case (none / 0) (#9)
    by scribe on Tue Jul 29, 2008 at 09:18:57 AM EST
    is that, but for the same anti-immigration wackos (like Tancredo, for one), there would be a heck of a lot fewer mandatory minimum sentences (if any) like the one under which these officers were, correctly, convicted.

    I guess no one screams quite so loudly, as when the ox they fathered is the one being gored.  But the anti-immigration zealots are showing their utter lack of devotion to the qhole concept of "equal protection of the laws" when they militate for clemency for these badge-wearing thugs.

    And a van full of vegetation.... (none / 0) (#10)
    by kdog on Tue Jul 29, 2008 at 09:31:11 AM EST
    has led to one man being shot, and 2 mercenaries going to the pen for a long time.

    That drug war is a real winner...I tell ya.

    Mandatory Minimums (none / 0) (#11)
    by txpublicdefender on Tue Jul 29, 2008 at 10:49:26 AM EST
    I read the entire opinion yesterday and was quite interested in some of the rather pointed commentary of the judges.  They made it very clear up front that the long sentences were those for which neither the trial judge nor they had any discretion but to impose.  It was a statutory mandatory minimum.  

    Perhaps we will soon be able to welcome the anti-immigration hardliners into the fold of those fighting against mandatory minimums.

    Those who continue to argue about the injustices done to these poor Border Patrol agents who shot someone who was running away and never reported it, picked up the shell casings and ordered another agent to do the same, and then went about their business as if nothing had happened really need to take a hard look at the facts that the jury actually had presented to them at trial.

    You had the guy who was shot (an admitted driver of a truckload of drugs), and at least two other border patrol agents contradicting the accounts given by these two "heroes."  You had the clear fact that they failed to report that they had discharged their weapons regardless of whether they knew they had actually struck the man.  And, you had other border patrol agents (supported by physical evidence) testifying that these two intentionally corrupted the scene by going around picking up shell casings and ordering/asking another agent to assist them in this.

    It would not have been a surprise to me if the jury had come back the other way, but there was plenty of sufficient evidence here to convict.

    And all the yelling and screaming from right-wingers (and Sen. Feinsteinn for god knows why) about how these guys shouldn't have been prosecuted, and instead the drug smuggler should have, they need to face the fact that the reason they couldn't prosecute the guy was because the officers who would have been the witnesses against him shot their credibility all to hell when they covered up the fact that they shot at the guy.  The government couldn't possibly have called those officers as witnesses against the drug smuggler with the evidence they had of their own culpability.

    And just one more note . . . How rich is it to have legislators demanding a presidential pardon or some sort of overturning of this guy's sentence when they are the ones who absolutely have the power to undo the very mandatory minimums that sank these guys?  Give me a break!

    Border Patrol used to be a class act (none / 0) (#13)
    by wurman on Tue Jul 29, 2008 at 11:46:04 AM EST
    What astonished me is that these 2 agents fired at a fleeing felon, the criminal was hit & went down, & these officers did not (did not!) approach, investigate, arrest the wounded man, & then call for medical assistance & transport.

    Instead, they went about policing up their brass.

    The fact is, to almost any moderately perceptive observor, they left the wounded man for dead.  I'll guess that the jury figured that out, fairly quickly.