U.S. Sen. Dianne Feinstein released the unofficial transcript of last week's hearing (held July 17, 2007) on the Ramos-Compean case. Witnesses included David Aguilar and Luis Barker, chief and deputy chief, respectively, of the Office of Border Patrol, U.S. Customs and Border Protection. Also on the list: Johnny Sutton, U.S. Attorney for the Western District of Texas, T.J. Bonner, president of the National Border Patrol Council, and David L. Botsford, appellate counsel for agent Ignacio Ramos.
This is the first of several hearings scheduled, according to Joe Loya, father-in-law of Ramos. U.S. Rep. Dana Rohrabacher, who testified in the hearing transcript below, will be part of a House Foreign Affairs Subcommittee hearing July 31 on the issue.
-- PART 2: [link]
-- PART 3: [link]
***
U.S. SENATE JUDICIARY COMMITTEE HOLDS A HEARING ON BORDER PATROL SHOOTING PROSECUTION
JULY 17, 2007
SPEAKERS:
SEN. PATRICK J. LEAHY, D-VT. (CHAIRMAN)
SEN. EDWARD M. KENNEDY, D-MASS.
SEN. JOSEPH R. BIDEN JR., D-DEL.
SEN. HERB KOHL, D-WIS.
SEN. DIANNE FEINSTEIN, D-CALIF.
SEN. RUSS FEINGOLD, D-WIS.
SEN. CHARLES E. SCHUMER, D-N.Y.
SEN. RICHARD J. DURBIN, D-ILL.
SEN. SHELDON WHITEHOUSE, D-R.I.
SEN. BENJAMIN L. CARDIN, D-MD.
SEN. ARLEN SPECTER, R-PA. (RANKING MEMBER)
SEN. ORRIN G. HATCH, R-UTAH
SEN. CHARLES E. GRASSLEY, R-IOWA
SEN. JON KYL, R-ARIZ.
SEN. JEFF SESSIONS, R-ALA.
SEN. LINDSEY GRAHAM, R-S.C.
SEN. JOHN CORNYN, R-TEXAS
SEN. SAM BROWNBACK, R-KAN.
SEN. TOM COBURN, R-OKLA.
WITNESSES:
REP. DUNCAN HUNTER, R-CALIF.
REP. DANA ROHRABACHER, R-CALIF.
DAVID V. AGUILAR, CHIEF, OFFICE OF BORDER PATROL, U.S. CUSTOMS AND BORDER PROTECTION
JOHNNY SUTTON, UNITED STATES ATTORNEY, WESTERN DISTRICT OF TEXAS
T.J. BONNER, PRESIDENT, NATIONAL BORDER PATROL COUNCIL
LUIS BARKER, DEPUTY CHIEF, OFFICE OF BORDER PATROL, U.S. CUSTOMS AND BORDER PROTECTION
DAVID L. BOTSFORD, APPELLATE COUNSEL FOR MR. RAMOS
***
FEINSTEIN: We'll come to order.
I want to welcome the witnesses.
I want to state the ground rules. This is an emotional subject.
I would request that everybody keep their composure at all times.
This is not a hearing to judge innocence or guilt. It is a
hearing to try to ascertain fact.
With respect to the jurisdiction of the Senate, there are few
issues involved in this case that are within our jurisdiction.
One of them is a certain law called 18 USC 924(c). Another is a
policy memo of the Department of Justice which will become clear.
And, of course, always limited -- excuse me -- negotiation for limited
immunity with someone who has trafficked drugs.
On October 19th last year, a federal district judge in El Paso
sentenced Border Patrol Agents Ignacio Ramos to 11 years and one day
and Jose Alonso Compean to 12 years in federal prison.
The length of these sentences have raised concerns about the
discretion of prosecutors in the charging of offenses and the impact
of mandatory minimums those charges carry.
Today's hearing is to explore the facts, as I said, and better
understand what transpired.
Some of the facts that we know are not in dispute.
A Mexican national named Osvaldo Aldrete-Davila crossed the
border illegally into El Paso, driving a van that contained 743 pounds
of marijuana. That chart shows that 750 pounds assembled by the
Border Patrol.
When Border Patrol agents started following him, Aldrete-Davila
turned back toward Mexico, but crashed his van and then tried to flee
on foot. Aldrete-Davila was stopped. A scuffle took place. He then
broke away.
He was then fired upon by Agents Compean and Ramos, before he
finally escaped into Mexico.
No written report of the shooting, as required, was made at the
time by any of the Border Patrol agents. Later, when an Arizona
Border Patrol agent learned of the incident, he reported it to his
supervisor and an investigation was opened.
A few weeks later, U.S. investigators went to Mexico, and offered
Aldrete-Davila immunity from prosecution for his drug smuggling plus
medical care in the United States if he would return to testify
against Agents Ramos and Compean.
Agents Ramos and Compean were arrested. And prosecutors later
amended their indictment three times, adding new criminal charges each
time, for a total of 12 charges.
Significantly, one of the charges added a firearms offense under
USC 924(c), which carried a 10-year mandatory minimum, in addition to
whatever other penalties the court would decide to use.
The defendants were found not guilty of the most serious charge,
assault with intent to commit murder, but convicted of all other
counts.
Agents Ramos and Compean will remain in prison for more than a
decade. Their only hope is to win appeal or for the president to
grant them a pardon or commute their sentences.
Meanwhile, it is reported that Osvaldo Aldrete-Davila has filed a
civil lawsuit in the United States and is seeking $5 million in
damages based on the shooting.
FEINSTEIN: This case has generated strong emotions on both
sides. Critics claim that this is a prosecution that shows how the
government's priorities are out of whack, when it immunizes a drug-
trafficker so that he can testify against the border agents from whom
he admittedly fled. Supporters claim that rogue agents must be
stopped, and that cutting a deal with a wrongdoer who is a key witness
is sometimes necessary in these situations.
It is true that the bullet left Aldrete-Davila permanently
injured. But it is also true that Aldrete-Davila was an innocent who
was caught in the wrong place at the wrong time.
I asked my staff to give me an idea of what the amount of
marijuana looked like. And, again, you have it there.
I find it hard to believe that someone trusted with $1 million of
drugs is simply an amateur drug mule. So I hope this hearing will
help us better understand the facts of the case, as well as 18 USC
924.
We should also look at an attorney general's policy rule issued
in 2003 that states that federal prosecutors must charge and pursue
the most serious readily provable offense or offenses.
As I said, while people have argued both sides, I have not heard
many people argue that Agents Ramos and Compean deserve the length of
these sentences.
I understand that U.S. attorney Johnny Sutton has suggested that
he was compelled to file charges that carried the 10-year mandatory
minimum in order to comply with this DOJ policy I've just read.
Specifically, that's the September 2003 rule from then-Attorney
General Ashcroft that requires the charging and pursuit of these
offenses.
I think it will be fruitful for us to explore that policy today,
to see if prosecutorial discretion is being unduly restricted by DOJ
policies and an overly rigid reading of the law.
When Congress enacted mandatory minimum sentences, we certainly
knew that the charges filed would automatically drive the sentence.
But Congress never said that the charges themselves must automatically
be filed.
The power of the prosecutor has long been heralded as one of the
most significant powers in our government. In it lies decisions that
can have a huge impact, like in this case, where one charge can
significantly drive up the sentence by 10 years.
FEINSTEIN: I'm very concerned about having in place a policy at
the department that takes discretion away from the prosecutors and
mandates that all cases must be charged to their fullest without any
consideration of the facts and circumstances, and whether any leniency
is warranted.
We do not want or expect prosecutors to be robots. Prosecutorial
discretion has been a fundamental part of our criminal justice system
for centuries. And where there are mandatory minimums, it seems to me
that it is even more important for prosecutors to retain discretion to
determine what charges make the most sense in such a case.
There are also a number of other issues specific to this case
which are worth exploring.
I hope to find out if the prosecutors considered bringing
administrative actions against Agents Ramos and Compean or asking them
to resign, instead of filing criminal charges against them and trying
to put them in prison. If that was not considered, why wasn't it?
I hope to find out why the government struck the deal that it did
with Aldrete-Davila. In particular, I hope to find out if the
government considered asking Aldrete-Davila to waive his civil claims
against the United States as part of an immunity deal. If not, why
not?
There are reports that he's now asking the $5 million for his
injuries. I'd like to learn more about the potential exposure that
our federal government faces on that claim.
We have also learned that, despite his immunity deal, Aldrete-
Davila refused to provide any information on his drug source and
refused to provide the names of others who talked about putting
together a hunting party that would retaliate for the shooting.
I'd also like to find out why the government entered into an
immunity deal in which Aldrete-Davila got to pick and choose which
information he provided.
I understand the government argues that Aldrete-Davila refused to
give information because he was afraid of retaliation. But that risk
is true in any number of cases in which a person agrees to cooperate.
Normally when a person is given immunity, he is supposed to cooperate
fully.
We have also learned that Mr. Aldrete-Davila reentered the United
States on at least 10 other occasions between March and November 2005,
and that the documentation provided by the federal government allowed
him to cross the border legally at any time without notifying anyone
in the government ahead of time.
The government admits that Aldrete-Davila crossed the border at
least one time without any notice, and therefore was in the United
States unsupervised. I'd like to hear more about the policy that
allows for this kind of unsupervised passage into our country and why
someone who was known to smuggle in drugs would be given such
flexibility.
I welcome the witnesses and look forward to their testimony here
today.
And now I'd like to recognize the distinguished ranking member of
this hearing, the senator from Texas, Senator Cornyn.
CORNYN: Thank you, Madam Chairman.
I know we have Senator Kyl, the ranking member of the
subcommittee, here. I have an opening statement but I'd be glad to...
KYL: (OFF-MIKE)
CORNYN: I want to express my gratitude to you, Senator
Feinstein, and to Chairman Leahy for scheduling this hearing. We've
been hoping that this day would come for a long time, and I'm glad
it's here.
I know you've taken a serious interest in this case, as have I.
And I look forward to hearing the testimony today.
The United States Senate has just completed two rounds of debate
on comprehensive immigration reform, and I believe the latest effort
failed in large part because the American people from across the
political spectrum simply don't have confidence in the government's
commitment to enforce the law, be it at the border, in the interior or
at the workplace.
I think the public's interest in the case of Border Patrol Agent
Ramos and Border Patrol Agent Compean is symptomatic of that distrust
because the public sees two Border Patrol agents serving long prison
sentences while an admitted drug dealer goes free.
So I think this hearing will serve an important purpose because
it will air for the American people the first time -- for the first
time publicly in this venue the facts of the case so they can hear
them and they can make a judgment for themselves about the most
controversial aspects of the case.
We all know that law enforcement officers hold a special place in
our criminal justice system. Anyone who can arrest someone and throw
them in jail holds enormous power and must be held to account when
they act improperly, because, of course, no one is above the law.
At the same time, it's important to remember that a law
enforcement officer should be treated no worse than any other citizen
before the bar of justice. In other words, no special breaks, no
special burdens by virtue of their status as a law enforcement
officer.
It's in this light that I've developed some serious concerns
about the judgment calls made during the prosecution of this case.
I want to find out if the prosecution offered the drug dealer --
find out if the prosecution allowed the drug dealer to violate the
terms of his immunity agreement without consequences. Did the drug
dealer commit perjury without consequence?
CORNYN: Did the government feel the need to prosecute these two
agents as opposed to disciplinary action to a degree that they were
willing to provide the drug dealer unlimited and unescorted parole
visas for various 30-day periods to do who knows what, including
possibly transporting additional narcotics?
Did the government use the threat of severe criminal charges in a
vindictive manner; that is, did the government bring that charge only
after the agents declined to negotiate a plea agreement?
And ultimately, is this the regular practice at the Department of
Justice such that they could have been cases -- so that they would
have been made the case in cases against non-police officers?
These questions are not designed to quibble with the jury's
decision in the case. Jurors provide a critical function in our
judicial system, and their hard work and verdicts are to be respected
until and unless such time as they are reversed on appeal.
But the jury could only weigh evidence that they actually hear
and are allowed to consider.
I would note that the jurors -- some jurors have since come
forward to state that the evidence that they were prevented from
hearing would have changed that verdict.
Rather, my questions are designed to examine whether the
prosecution of Agents Ramos and Compean were handled the same as other
defendants or were they treated differently because of their status as
law enforcement officers.
Madam Chair, I thank you again for your perseverance and your
willingness to convene this hearing. And I look forward to hearing
the testimony from the witnesses.
FEINSTEIN: Thank you very much, Senator. And I look forward to
working with you on this as well.
Senator Kyl?
KYL: Madam Chairman, I have an opening statement. But
respecting the time of my good friends and former House colleagues
here, what I'd like to do is to have you turn to them after any other
opening statements here.
I will give about half of my opening statement orally when this
panel has concluded, put the rest of it in the record.
And apologize in advance, I'm -- as we all are -- scheduled about
three different ways this morning. And I may have to be, kind of,
coming in and out.
But I did want to hear the testimony of these two witnesses, who
are among the most conscientious and dedicated public servants that
I've ever served with. And having worked with both of them in the
House of Representatives, I could tell a lot of stories about both of
them and their dedication to the people of this country. They're both
patriots.
FEINSTEIN: Thank you very much, Senator.
Senator Cornyn?
CORNYN: I'll just submit an opening statement for the record.
FEINSTEIN: Thank you very much.
And now we'll turn to the first panel. I'll begin with
Congressman Hunter, because he was here first, Congressman
Rohrabacher.
Duncan Hunter represents California's 52nd District, consisting
of eastern and northern San Diego County. He was elected to the House
of Representatives in 1980. His first assignment was to the House
Armed Services Committee, where he is presently ranking member. Prior
to his current position as ranking member, Congressman Hunter served
as the chairman of the full committee from 2003 to 2007.
He is a Vietnam veteran. Served in the 173rd Airborne and 75th
Army Rangers.
I'll introduce Congressman Dana Rohrabacher at this time. He
represents California's 46th District, stretching along the Pacific
coastline of Orange County and Los Angeles.
Congressman Rohrabacher is currently in his ninth term in the
House and is serving as ranking member of the Oversight and
Investigations Subcommittee of the House International Relations
Committee.
Prior to his first election to Congress in 1988, he served as
special assistant to President Reagan. For seven years, he was one of
the president's senior speech-writers.
I should mention he was an editorial writer for the Orange County
Register as well.
So we welcome you both to the other side, as they say.
And, Congressman Hunter, would five to seven minutes suffice?
HUNTER: (OFF-MIKE)
FEINSTEIN: Fine. Please proceed.
HUNTER: Chairman Feinstein, thanks for letting Dana and I come
over and talk to you about this case.
I think you've framed the case extremely well, Senator Feinstein
-- the circumstances.
And let me just start out by saying I think the prosecution and
the resultant 11 and 12 years respectively for Agents Compean and
Ramos comprise, to me, the most severe injustice I've ever seen with
respect to the treatment of U.S. Border Patrol agents, or, I might
add, the treatment of any uniformed officers.
HUNTER: And I say that as a guy who's been on the Armed Services
Committee, now, for 26 years. I've seen lots of prosecutions under
the UCMJ.
But the totality of the circumstances; that is, the wounding of a
drug dealer who has just brought in 750 pounds of narcotics and the
resultant 11- and 12-year sentences in the federal penitentiary, which
is about two and a half years more than the average convicted murderer
does behind bars -- essentially being given murder sentences for this
action which turns on a split-second judgment -- and if you take away
all of the underbrush, it turns on a split-second judgment, as to
whether or not the drug dealer, when, according to the agents'
testimony, he whirled and had what looked to them like a gun in his
hand, and he claimed -- having been given immunity and being brought
back from Mexico to testify, claimed he did not have a gun in his
hand.
But that split-second judgment basically means the difference
between being given a medal for accomplishment or for valor or being
given 11 and 12 years in the penitentiary.
And so the first thing I would say is that that is not a burden
that we can put on Border Patrol agents, or we're going to get to the
point where no one will volunteer for this force.
Now, let me just offer a couple of things, because I -- and I
apologize because I have to leave early -- but let me just offer a
couple of thoughts.
First, if you believe in full the testimony of the drug dealer,
if you accept his statement as fact throughout, the 11- and 12-year
sentences are extremely injust -- extremely injust.
You have a wounded drug dealer who, according to the police
documents that I've seen -- or the prosecutorial documents that I've
seen, did in fact enter the United States subsequently with another
load of narcotics, for which he was not prosecuted.
And that brings up two facts that I think you should make a point
of inquiry with the government.
First, the government always has an obligation, when a conviction
turns on the credibility of a witness, and that credibility of that
witness is subsequently impaired by something that he does -- and in
fact, if it is a fact that this drug dealer brought in a subsequent
load of narcotics, that certainly is a factor that should have been
brought to the attention of the court.
And I would recommend that you ask the government why they didn't
bring this subsequent load of narcotics, after the drug dealer had
been given immunity -- why that was not brought to the subsequent
attention of the court.
Because it's the trustworthiness, the credibility of the witness,
of the drug dealer, which was utilized to convict Compean and Ramos.
The second factor that I would urge that you ask the government
about is this.
I've looked at the statement -- this so-called rebuttal statement
by the U.S. attorney.
HUNTER: Eight times in that rebuttal statement it states
conclusively that the drug dealer was unarmed.
I've read the transcript of the case. There is nothing in the
transcript that indicates that there's any proof that he was unarmed.
He was never frisked. He was never searched. And the other Border
Patrol agents who were watching this from afar -- the one who
testified was watching from hundreds of yards away.
So there is absolutely no proof that he didn't have a gun except
his own statement. And if you look at the motivation that he might
have, what greater motivation than being given immunity, being set up
for a multi-million dollar civil case against the U.S. government and
being the key witness in a prosecution that sends the hated Border
Patrol agents to prison?
Now, I want to tell you, after they went to prison -- that was, I
believe, the 17th of January -- the day they went in, I called up
Harvey Lappin, who is the head of the Bureau of Prisons. And he'd
just gone home, but I talked to his administrative assistant and I
said, "These guys are going to get beaten up in prison. Prison has a
large population of drug dealers. They hate the Border Patrol. And
they're going to be beaten up unless you segregate them."
The assistant assured me that he would convey that to the
director, Mr. Lappin, very quickly -- that night. The next day I got
a call back from Mr. Lappin's staff and they said, "Good news: The
Border Patrol agents have been segregated from the general population
and they will be safe."
And they sent me subsequently a letter -- and I'd like to offer
this for the record -- that says, "They are under a special program in
which their safety will be assured." And I'd like to offer that to
the record, Senator.
FEINSTEIN: That will be included in the record. Thank you.
HUNTER: What Mr. Lappin or his assistants didn't tell me was
that a few days later Mr. Ramos would be put back in the general
population and he was promptly beaten up. And it wasn't guards that
stopped the beating, it was another inmate.
So these two agents have now done six months in the federal
penitentiary. I have never seen a case so compelling for a pardon or
a commutation.
Now, after they were put in and the president did not pardon
them, I introduced a bill. I had our lawyers come in and I asked them
if Congress could issue a pardon; if we could do a bill that would
effect a pardon. They researched the cases and they said there are
some cases that indicate actually that you can, and some that indicate
you can't.
And since they were already incarcerated I said, "Let's go ahead
and draft one." And we've drafted one.
HUNTER: We introduced it. We have at this point precisely 100
co-sponsors.
But I think this is a case which calls out for a pardon or for a
commutation.
But especially, Chairman Feinstein, I would make sure that you
get a response from the government as to why, after the drug dealer
was focused on in an investigation for bringing in a second load of
narcotics, that fact, which obviously goes to his credibility and his
trustworthiness in this case, in which his testimony was the key
driver of these two convictions -- why that fact was not communicated
to the court.
Now, the government may say that that didn't result in a
conviction. In fact, they didn't indict as a result of that. But I
have read the police report with respect to that.
But that certainly does trigger an obligation, a duty on their
part to report an activity which goes straight to the credibility of
the key witness to the government. And I don't think they did that.
And the second thing that, of course, I think you should question
them on strongly is this: Again, their statement has seven references
to -- states conclusively seven times that the drug dealer was
unarmed. And of course that's a key element in this case.
There is no evidence that he was unarmed. He was not frisked, he
was not searched, nobody was close to him except the two agents, Ramos
and Compean.
And the last thing I would say -- and I appreciate you letting me
go early, Chairman Feinstein. I appreciate your attention to this
case, incidentally. This is a very critical case.
You know, we built that fence in San Diego, and we had tons of
cases just like this. Not exactly like this, but beatings, times when
Border Patrol were rocked, people came across in vehicles, and the
separation that we achieved by having a double fence with a road in
between eliminated those.
And we also had an average of eight to 10 murders a year right
there on the San Diego border. Most of the time the people being
murdered by the gangs that roamed that border were the people coming
in illegally.
When we put the double fence up, the murders went from an average
of eight to 10 a year to zero, and incidents like this on our part of
the border went to zero.
HUNTER: And if you look at the border fence that we passed into
law -- it is mandated to be constructed in Texas -- it appeared to me
that the fence includes this area where you are now having these
drive-throughs like the one which is the subject of the discussion
this morning.
So it's now the law that we build all 854 miles of border fence.
I think we need to get on with it.
Thank you for allowing me to testify, Chairman Feinstein. And
thank you for your great interest in this case.
And to Mr. Cornyn, I appreciate the hospitality.
And I apologize for having to leave early, but I wanted to let
you know how strongly I feel.
FEINSTEIN: Well, thank you very much for the testimony, for
being here.
And I will go to Congressman Rohrabacher.
ROHRABACHER: Well, first and foremost, let me thank you, Senator
Feinstein. You have my respect and my appreciation for holding this
hearing.
As we meet today, it should not escape our attention that the two
veteran Border Patrol agents that we're speaking about are in their
180th day of solitary confinement. It just tears at your soul to
think that these two men -- who had five years and 10 years of service
to the Border Patrol, respectively -- these men who put their lives at
risk every day trying to do one of America's toughest law enforcement
jobs, these men are now in solitary confinement for an activity that
stems from their interdiction of a drug dealer.
Both of these men are military veterans. Both have unblemished
work records. Officer Ramos, in fact, was nominated to be Border
Patrol Agent of the Year.
And then on February 17th, 2005, Officers Ramos and Compean
interdicted a drug smuggler who had just penetrated our border with
743 pounds of narcotics.
ROHRABACHER: A high-speed chase ensued, followed by a physical
altercation. Agent Compean ended on the ground. The drug dealer ran
toward the border. And as he did, he was turning and, according to
the officers, had what appeared to be a shiny object in his hand.
And there is no reason to believe that that object was not a gun.
Yet it appears that the word of the drug dealer was taken over the
possibility, over the fear of these two law enforcement officers, as
they were being put in great jeopardy.
Shots were fired. And in the aftermath, certainly -- and we all
admit this -- the prescribed Border Patrol procedure was not followed.
Ramos and Compean didn't do their paperwork.
Ramos and Compean, and their supervisors, not believing that the
drug dealer had been hit, decided to forego the hours and hours of
laborious paperwork that is required from shooting incidents.
Now, that was a wrong decision on their part. But it's
understandable as well. They didn't think anybody had been hit. They
just didn't want to spend six or seven hours of their time and the
FBI's time and everybody else's time to go through these procedures.
That procedural violation, that decision, deserved a reprimand.
That decision that deserved a reprimand was turned into a felony by
the U.S. attorney's office.
ROHRABACHER: Prosecutors in this country are given great
discretion, and who will be granted immunity and who will be
prosecuted is their call.
In this case, the U.S. attorney's office decided to give immunity
to a professional drug smuggler, accept his word that even though he
was in possession of $1 million worth of drugs that he was unarmed,
and then to throw the book at the Border Patrol agents, turning into a
felony what should have been addressed at most by a five-day
suspension for a violation of procedures.
It is totally disingenuous for anyone involved in prosecuting
Ramos and Compean to suggest that they had no choice. The choice was
prosecuting the drug smuggler for his heinous crimes or prosecuting
the Border Patrol agents. Going after the agents required turning
reality on its head, trying to turn our protectors into bad guys,
exaggerating the importance of not spending the hours muddling through
a shooting report when they thought no one had been hit.
The prosecutors decided to go after the good guys and gave the
bad guy immunity. The prosecutors then, let us note, began to vilify
the Border Patrol agents in order to justify their decision.
Mr. Sutton has, for example, repeatedly referred to the agents as
corrupt in broadcast interviews. When challenged about this, he
simply defined corrupt in a way that no one else uses the term. Now,
we've heard that before from this administration and it's
unacceptable, especially when you consider the impact that that has
had on the lives of these people, these two Border Patrol agents who
have an unblemished record on their job.
But it was Mr. Sutton who stood by as Congress was lied to with
the claim that these two fine Americans of Mexican descent supposedly
bragged that they wanted to go out and shoot Mexicans that day. This
later was proven to be a bald-faced lie.
Now, who's being prosecuted for lying to Congress? That was said
directly to members of Congress who were investigating this incident.
This lie was in print on numerous occasions. Why did Mr. Sutton let
such a vicious lie simply stand? Why didn't he correct the record?
Then one must consider that Mr. Sutton has continuously described
the incident as Ramos and Compean shooting an unarmed man in the back
and lying about it.
ROHRABACHER: What Mr. Davila -- was he an unarmed man? No, he
was not just a man. He was a criminal member of a drug cartel.
And he was not shot in the back, he was shot in the buttocks, and
the entry wound of the bullet was consistent with the agents'
testimony, as well as the Army surgeons who removed that bullet, that
he was turned -- he wasn't shot in the back -- he was turned with his
hand extended as if something was in his hand. I wonder what that
was.
The agents had exactly one split second to decide if their lives
were in danger.
And finally, let us not forget the worst lie of all, the one that
was told to the jury: when the U.S. attorney's office permitted the
prosecutor to describe the drug smuggler as a onetime offender trying
to earn enough money to pay for medicine for his sick mother.
Mr. Sutton may use pejorative words to describe the drug smuggler
now, but it was his prosecutor who insisted to the judge that the jury
not be permitted to hear the information directly tying the drug
dealer to a second cross-border drug shipment.
Now, someone's getting railroaded here. The jury wasn't able to
hear that this drug smuggler had been fingered in a second drug
shipment. And it was the U.S. attorney's office that insisted to the
judge that the jury not be permitted to hear that evidence.
This committee may want to ask Mr. Sutton about the date of a
free border crossing pass that was provided by his office, provided to
the drug smuggler, and we might want to determine if the date on that
pass coincides with the date of the second drug shipment. Because
those of us on the House side who've been trying to get to the bottom
of this can't get an answer out of Mr. Sutton about this.
Mr. Sutton's office has stonewalled our investigation in the
House, and that's why, Senator Feinstein, we are so grateful to you
for stepping forward today.
Even insisting -- Mr. Sutton's office has even insisted that we
obtain a privacy waiver signed by the drug smuggler before they can
release the information as to the dates that were on the drug
smuggler's pass.
I don't know what contempt of Congress is, but that sounds like
it to me.
This committee may want to ask Mr. Sutton: If all the facts
remained the same, but instead Mr. Davila turned out to be a
terrorist, let's say instead of all of these narcotics, that Mr.
Davila was instead smuggling across the border a van that was filled
not with marijuana, but let's say Mr. Davila had a van that was filled
with a dirty bomb headed for an American city, Ramos and Compean,
would they be sitting in federal prison right now for violating a
terrorist's civil rights? Or would they be heralded as the true
heroes who they are?
In summary, the Ramos and Compean case is the worst miscarriage
of justice that I have witnessed in the 30 years I've been in
Washington. The decision to give immunity to the drug dealer and
throw the book at the Border Patrol agents was a prosecutorial
travesty.
ROHRABACHER: The whole episode stinks to high heaven.
Two of America's brave Border Patrol defenders have had their
lives and the lives of their family -- and their families are here
with us today -- destroyed by what I see as an elitist, arrogant and
overreaching prosecutor who believes that protecting the civil rights
of illegal alien criminals is worth destroying the lives of law
enforcement officers for minor procedural violations.
With that, I appreciate at long last the opportunity to try to do
something to help these brave law enforcement officers. As I say, as
we speak, Madam Chairman, they are in their 180th day of solitary
confinement because this administration that will give Scooter Libby a
commutation of his punishment, this administration let Scooter Libby
go, but these two defenders of our border have to go in solitary
confinement.
I pleaded with this administration, at least, go to the judge and
ask him to let these fellows go until their appeal is heard, because
their lives are in danger. That request was turned down, and I might
(inaudible) very abruptly and arrogantly.
And as we now see, Scooter Libby can be set free. Two Border
Patrol agents who languish in solitary confinement, whose lives are in
danger, their lives don't count a bit with this administration.
And I appreciate that you, Senator Feinstein, care about these
people as individuals and are holding this hearing because of that.
Thank you very much.
FEINSTEIN: (OFF-MIKE) very much, Congressman Rohrabacher.
I have no questions.
Do other members of the panel have questions of the congressmen?
If not, then we thank you for coming over to this side. We
excuse you.
And we'll proceed with the next panel.
I would ask T.J. Bonner to come forward, and I will introduce the
next panel in aggregate. And then we will go right down the line, if
that's agreeable.
FEINSTEIN: Mr. Bonner is currently the president of the National
Border Patrol Council. This is a union within the American Federation
of Government Employees which represents approximately 11,000 non-
supervisory Border Patrol employees. Mr. Bonner has held this
position since 1989 and has been a Border Patrol agent in the San
Diego, California, area since 1978.
Deputy Chief Barker retired from the U.S. Border Patrol in July
2006 after more than 28 years of service. At the time of his
retirement, he was the national deputy chief of the Border Patrol in
Washington, D.C., where he had served since May of 2005.
Prior to that, he served in a number of key leadership positions
in the Border Patrol, including the position of chief Border Patrol
agent in the Laredo and El Paso, Texas, sectors. Before joining the
Border Patrol in 1978, he was a police officer and acting detective
for five and a half years with the Jersey City Police Department
narcotics squad.
David Botsford is currently serving as appellate counsel for Mr.
Ramos. We asked the defense attorneys at the trial if they wished to
come and testify on behalf of their clients. We learned that they are
prohibited from doing so by the judge. However, Mr. Botsford has
volunteered to testify.
He is a member of the State Bar of Texas, where he received
Outstanding Criminal Defense Lawyer of the Year in 1993. And he has
previously served as the president of the Texas Criminal Defense
Lawyers Association. He's been listed as a super lawyer and as one of
the five go-to lawyers in Texas criminal defense practice by the
publication Texas Lawyer. He is also listed in the best lawyers in
America.
David Aguilar is not present. Is Mr. Aguilar going to testify?
Oh, he's on the third panel, I guess. All right.
So we will proceed with these witnesses at this time.
Mr. Bonner, you're first up. Welcome.
BONNER: Thank you.
Chairwoman Feinstein, Ranking Member Cornyn, other distinguished
members of the committee, the National Border Patrol Council
appreciates very much the holding of this hearing to get to the bottom
of this matter.
This is something that has weighed heavily on the minds of not
just law enforcement officers across America, but ordinary citizens
who look at the facts of this case and wonder how two Border Patrol
agents who were simply doing their job and defending themselves
against an armed drug smuggler ended up being prosecuted, convicted
and sentenced to 11 and 12 years in prison. This is a travesty of the
highest order.
The government claims that it prosecuted these two agents because
they shot an unarmed man in the back, covered up, destroyed evidence
and filed false reports. All of that hinges on whether that person
was in fact unarmed.
In order to reach the conclusion that Osvaldo Aldrete-Davila was
unarmed, you have to discard the physical evidence -- the bullet that
entered through his body at an angle -- you have to ignore the laws of
physics, you have to ignore the sworn testimony of two law enforcement
officers and place absolute, complete faith in the word of a career
criminal.
Make no mistake about it, Osvaldo Aldrete-Davila was not a simple
mule, as the prosecution tried to claim, who was looking to earn
$1,000 so that he could care for his sick mother. The cartels are not
that stupid.
BONNER: They don't throw the keys to a van with $1 million worth
of marijuana to someone who they don't know and say, "Just drive
around, kid, and you'll figure out, someone will pick you up and
escort you into the safe house and then we'll give you $1,000." They
are not that foolish.
And anyone in our government, in our system of justice who
honestly believes that, you have to really question their
intelligence. And I don't question the intelligence of the folks in
that office. They're far smarter than that.
He was armed. In my 29 years of experience as a law enforcement
officer, having captured loads of narcotics and familiar with many
other loads of narcotics that have been captured, when you're dealing
with that quantity, they are inevitably, almost invariably armed.
Perhaps not to shoot it out with law enforcement officers, but
certainly to protect against being ripped off by the competition.
This is a very troubling case, and you'll hear the other prong of
the testimony is that they tried to cover this up. There was no
cover-up here. They were required by policy to orally report the fact
that they had discharged their firearms. They did not do that, for
whatever reason. But that is not a crime. That is an administrative
violation that merits no more than a five-day suspension.
And another part of their case rests on the fact that Agent
Compean picked up his shell casings. One of the things that no one
ever did was to test him afterwards to see whether he was suffering
form post-traumatic stress disorder.
Everyone who testified at trial said that Joe Compean was walking
around in a fog, in a haze. He had just been assaulted. He had just
seen his life flash before his very eyes because someone pointed a
weapon at him, and he was clearly suffering from what used to be
called shell shock, is now called post-traumatic stress disorder. No
one tested him for that.
He reverted to his training. At the firearms range we're taught,
after you fire your weapon, you pick up your shell casings and you
throw them into the nearest receptacle. Looked around, there was no
near receptacle, so he threw them into the drainage ditch.
If he really intended to destroy this evidence he would have
taken it as far away as possible and completely destroyed it, taken it
to a smelter, had it melted down. There was no intent there to
destroy or to cover up, and there was no filing of a false report.
The Border Patrol firearms policy specifically precludes agents from
mentioning the fact of a shooting in a written report. That's done by
the investigator.
BONNER: The wrongdoing here was bringing 743 pounds of marijuana
into the country. That is a felony. And the person who did that was
granted immunity by our federal government.
And when he was subsequently implicated in another 753 pounds of
marijuana, not only was that fact ignored, but it was suppressed. The
government argued that the court should not let the jury hear that
evidence, and the jury did not hear that evidence, and it would have
had a bearing on the outcome.
In conclusion, the ramifications of this go far beyond those two
agents, far beyond just the Border Patrol, where morale has been
decimated and now we're suffering the effects of that. We can't hire
the number of agents that the president wants, that the Congress
wants.
We're falling so far behind, one of our recruiters relayed to me
that someone came up to him after the standard recruiting pitch and he
said, "You'd have to be crazy to join this outfit. You eat your own."
That's a sad commentary, that the public has so little faith in
our system of justice. And millions of Americans have petitioned this
president for executive clemency and he ignores that.
The effects of this are so far reaching, I would implore you to
use your power to order an investigation, appoint an independent
counsel to look into this, go in, subpoena, get to the heart of this
matter, because the fabric of our system of justice depends on
resolving this matter expeditiously.
Thank you very much.
FEINSTEIN: (OFF-MIKE) you, Mr. Bonner.
Former Deputy Chief Barker?
BARKER: Good morning, Chairman Feinstein, Ranking Member Cornyn,
and distinguished members of this committee. Thank you for inviting
me to this important hearing.
And you went through my biography, but one thing I'd like to add
is also as a military policeman stationed in the U.S., with the U.S.
Army, stationed at Fort Bragg, North Carolina.
BARKER: Also, I'm currently providing leadership -- leadership
and integrity training and anti-corruption training to senior managers
-- middle-level managers at CBP under contract, and also train first-
line supervisors at the Leadership Development Center, again under
contract with CBP. So I'd like the record to reflect that.
FEINSTEIN: Thank you.
BARKER: As a senior leader in the Border Patrol, I am extremely
proud of the men and women who serve and protect this nation and who I
had the honor to lead.
Today, even in retirement, I'm still proud of the great work that
these men and women do in defense of the homeland. Day after day,
they do this difficult and dangerous job in securing our nation's
borders under extreme condition and do it with a personal pride and
dedication that is to be applauded.
They literally put their lives on the lines every day, yet do
great things to make us proud. They are genuine heroes, and certainly
deserving of our support -- of your support, rather, and that of the
American people.
To prepare them for the dangers and rigors of this job, each
agent undergoes extensive training, to include firearms training and
the use of force. This training instills professionalism and makes
every agent understand that he or she is held to a higher standard and
that they must obey the laws of the land and of the community in which
they live.
Every agent that entered on duty when I was the chief patrol
agent in El Paso sector had this reinforced to them by me before going
to the Border Patrol Academy and, again, upon their return from the
academy and before reporting to field duties.
They are told about the trust that is placed in them to enforce
the laws within the limits authorized, a trust that if violated has
enduring consequences.
The motto of the Broder Patrol is "honor first," an ideal that is
instilled in every agent from the day they walk through the door of
any sector in the Border Patrol and in moving into the training and
indoctrination at the Border Patrol Academy. It is something that has
sustained the Border Patrol.
During my tenure as chief patrol agent in the El Paso sector
there have been numerous incidents where officers have discharged
their weapons, but almost -- but most of them accidental.
Of these weapon discharges, six were incidents where agents used
deadly force to defend themselves from a threat against them,
resulting in two fatalities.
The firearm policy mandates the reporting of every shooting
incident, accidental or otherwise, for proper investigation and
disposition.
For this reason, the scene must be secured, proper notification
must be made to bring the investigative resources to bear.
Every agent understands the requirement to notify a supervisor of
a discharge of a service firearm and the implication for not doing so.
On or about March 4, 2005, I received a memorandum from an agent
in Tucson sector informing us of a shooting incident connected with a
narcotics seizure that occurred in the El Paso sector on February
17th, 2005, approximately two weeks earlier.
At that point in time we had no recent report of shootings, so
the information in the memorandum was surprising to us.
After checking the records and making some inquiries, we had
reason to believe that the allegations in the memorandum had some
merit. We immediately made the proper notifications and made the
initial report to the Office of Inspector General because of the
seriousness of the allegations.
As we all know, the events of February 17th, 2005, resulted in
the conviction and sentencing of former agents Ignacio Ramos and Jose
Compean. Osvaldo Aldrete-Davila, the "victim" -- and I use it in
quotes, because he is not deserving of the title because of his trade,
a trade that supplies nothing but misery to those who are trapped in
its clutches -- in the clutches of its product -- he deserves no
sympathy and I give him none.
BARKER: Only circumstances make this characterization possible.
I do, however, feel for Agents Compean and Ramos and their
families for what they have endured and will endure as the result of
the terrible choices they made on February 17, 2005.
Though there is an emotional connection in this case, those of us
in leadership and those having the responsibly to apply the rule of
law cannot abdicate our responsibilities.
Agent misconduct, even criminal misconduct, does occur, despite
our best efforts in selection and training, but we do everything to
deter it and act decisively when it occurs.
It saddens me because, had the two agents behaved with the
integrity and honor that we instill -- following procedure, disclosing
the shooting, not tampering with the evidence and encouraging others
to do so -- the results might have been very different.
In fact, in my experience, almost every agent-involved shooting
is resolved in the favor of the agent without criminal charges. So to
suggest that the Border Patrol went after these agents for
administrative violations is baseless and I believe the facts in this
case supports this premise.
Agents Compean and Ramos used deadly force when it should not
have been applied. They shot a person in direct violation of the
policy and contrary to the training that they have received in this
regard.
From the statistical information I gave earlier, it is obvious
that this was not the first time agents used deadly force in the El
Paso sector. The differences between this case and the others are
glaring. Agents involved in other shooting cases reported them,
cooperated with the investigation and allowed it to run its course,
and an investigation which generally supported the agents' decision to
use deadly force.
Since the agents destroyed evidence -- since the agents -- I'm
sorry -- destroyed evidence, filed an incomplete report of the
incident in an effort to keep the shooting and the circumstances
surrounding it from the leadership.
BARKER: Additionally, their actions prevented the proper
investigation of this case -- investigation which I said generally
supports the actions of agents.
On April 28, 2005, when Agent Compean came before me to make his
oral reply to the proposal to indefinitely suspend him, I asked him
why he did not report the shooting. He said, and I quote, "I didn't."
He continued to say he knew that it was wrong for them not to
report and continued to say that if he thought that the suspect had
been hit, he would have.
He also said that he knew that they would get in trouble, a
thought that was confusing to me since I've established that when an
action is appropriate the investigation invariably proves this,
absolving the agents of any liability.
This has been a tragedy with emotional undercurrent, but there
should be no mistake about it, it begins and ends with the actions of
Agent Compean and Ramos, not the prosecutors, not the judge or the
jury, as has been suggested. The distorted facts have compounded this
already tragic situation by tarnishing the reputation of other people
who did the right thing.
The U.S. attorney, though his office in El Paso, has been a
strong supporter of the agents in El Paso sector, making it clear
through its prosecutions that assaults on agents will not be
tolerated.
They have also been on the front lines in those cases where
agents have used deadly force under circumstances that warrant it or
taken action that have resulted in injury or death, and they have
worked vigorously in supporting the agents.
Conversely, they are also intolerant of official criminal
misconduct or corruption, as they should.
Finally, it is suggested that this case will make agents hesitate
in a situation where deadly force is warranted. The facts do not
support this contention since the last two months...
FEINSTEIN: Could you conclude please, Deputy Chief Barker?
You're two minutes, 36 seconds over time.
BARKER: Just three more lines (inaudible).
FEINSTEIN: Thank you.
BARKER: The facts do not support this contention, since the last
two months agents have discharged their weapons against assailants in
self-defense on three occasions in El Paso, resulting in injury to
one. Agents have always defended themselves, and I have no doubt that
the will continue to do so when there is a threat.
I thank you for this opportunity, and I looking forward to
answering any questions that you may have.
FEINSTEIN: Thank you very much.
Mr. Botsford?
BOTSFORD: Good morning, Chairwoman Feinstein...
(CROSSTALK)
BOTSFORD: Appreciate the opportunity to be here very much.
(CROSSTALK)
BOTSFORD: Firstly, I appreciate the opportunity to be here on
behalf of Ignacio Ramos.
I represent Ignacio Ramos on appeal only. I was not involved in
the trial. However, I've read all 33 volumes of the appellate record,
read every word, seen every exhibit. I'm here to try to answer
questions, and I'd like to do so after making some brief comments.
As Cinderella's stepdaughters taught us, no good can come from
stuffing a foot into an ill-fitting shoe, and that's what this case is
really about from my perspective.
I've been practicing criminal defense law for 30 years in Texas.
I have seen no greater tragedy than this case.
As Representative Rohrabacher said earlier, the truth is, if the
driver of this van had been Osama bin Laden or some terrorist, would
we even be here? Would there have even been a prosecution of Ramos
and Compean? I submit no, of course not.
The point is, however, we're not in that position. We're in a
position where two agents apprehended a drug dealer. And I want to
address the fact that's reflected in Mr. Sutton's written testimony
that Davila could not have been prosecuted. This is at page 6 of his
written statement.
I take serious issue with that. Obviously, anybody that
practices criminal law knows that a grand jury will indict a ham
sandwich. We've all heard that phrase. And, in fact, Davila could
have been prosecuted for this first load that he fled across the
river.
Why Mr. Sutton says that he can't be prosecuted bewilders me
because I believe any first-year prosecutor could get an indictment
and successfully prosecute him. There's independent testimony that he
entered the United States illegally, got into a van laden with 750
pounds of marijuana, drove into Fabens, Texas, in order to receive
directions to the stash house, was attempted to be stopped by two, and
then subsequently three Border Patrol agents, of which one of them was
Mr. Ramos.
Davila did not stop. He fled. High-speed chase. And under the
Supreme Court opinion of Scott v. Harris, decided in April of 2007, we
know that the agents were authorized to use deadly force to stop
Davila during that high-speed chase that endangered other people.
They didn't do that. They followed him to the border where
Davila got out of his van and encountered Agent Compean, who was
bearing a shotgun. Davila didn't stop for Compean, even though he was
bearing a shotgun. There was an altercation. Ramos gave chase down
into 11-foot ditch. While he was in that ditch trying to get to where
the alien Davila and Compean were in a struggle, there was an exchange
of shots, what Ramos thought was an exchange of shots.
Agent Ramos comes out of that ditch and ultimately fires one shot
as -- and you've heard the testimony before -- Davila was turned in a
turning direction back toward him.
You know, the most inept prosecutor in the world could have
prosecuted this case, so I take difference with what Mr. Sutton has
put in his written statement about not being able to prosecute him.
The immunity situation is quite distressing, and I would offer
for the record a copy of the March 16, 2005, letter of limited use
immunity, Senator Feinstein, that was proferred to Davila, that was
signed by him over the signature of J. Brandy Garday (ph), assistant
U.S. attorney.
I'd like to point out that that -- and I would ask that the
record receive that.
FEINSTEIN: Thank you. That will be the order.
BOTSFORD: Thank you very much, Senator.
I take great issue with Mr. Sutton's statement on page 6 of his
testimony that the court ruled that the second load of marijuana that
we've heard allusions to, the October load, as Mr. Sutton refers to
it, was not relevant to the issues at the trial. And that ties into
this immunity agreement, because in fact this immunity agreement was
proferred to Davila before he was ever interviewed in the United
States. This was proferred to him after one telephone conversation
between an agent, Chris Sanchez (ph), and Davila on a cell phone.
Now, the immunity agreement is what's called use immunity, co-
extensive with 18 USC Section 6001 et seq. That means that once
Davila signed this agreement, he had an obligation to truthfully
testify and cooperate and provide evidence. Nothing he said could be
used against him.
Unfortunately, Mr. Sutton's trial prosecutors represented to the
district court that this immunity agreement was what would be
transactional immunity for the day of February 15, 2005 -- February
17, 2005 only, and therefore the district court ruled that because Mr.
Davila could take the Fifth Amendment as to the second load, the
defense attorneys would not be entitled to cross-examine him on it.
BOTSFORD: It wasn't that it wasn't relevant. It was based on a
misrepresentation by trial counsel to the court. Because once you
have use immunity -- as the Supreme Court of the United States
determined back in 1972 in Kastigar, once you have use immunity you
have no Fifth Amendment right left; you have to testify.
Additionally, the trial testimony reflects that Davila, the
alien, the, quote, "victim," did not comply with this agreement. The
testimony is clear in the record that he refused to name where he
received medical treatment in Mexico, the names of the people that
picked him up on the other side of the river once he crossed back to
the Mexico side, the names of his confederates, the names of
individuals who were threatening to seek retribution against Border
Patrol agents in the United States after this came out.
For what it's worth, that immunity agreement was broached (sic)
by Davila. No question about it. The record is clear.
I will also state, approximately two months ago, in the El Paso
Times, Davila was interviewed about the sentence that was imposed upon
Ramos and Compean, and even he said that it was too harsh. Even he
said it was too harsh.
The last point I'd like to make briefly is that relating to
924(c), 18 USC United States Code, that says that if you use or carry
or discharge a gun in the course of the commission of a crime of
violence you automatically receive a mandatory minimum 10 years
stacked on top of the other offense -- the other sentence for the
other offenses.
In this case, the district court had to impose that sentence, but
it's the exercise of judicial discretion -- and I believe it was both
Senator Cornyn and Chairwoman Feinstein talked about prosecutorial
discretion.
The original indictment against these gentlemen did not include
that 924(c) count. It was added.
And although I was not personally involved in the communications
at that time between trial counsel and Mr. Sutton's line prosecutors
in El Paso, it is my understanding that a plea bargain offer was
extended to Compean and Ramos, it was refused, and then the 924(c)
count was added.
The Supreme Court of the United States, in Bordenkircher v. Hayes
and more recently in U.S. v. Godwin, have said that a prosecutor can
retaliate against the defendant who wants to take you to trial and
allow the ante to be upped, so to speak.
But the question remains, is that an intelligent prosecutorial
discretion? I think it sends a terrible message to law enforcement.
You know, if you -- 924(c) was originally enacted to try to
encourage criminals to leave their guns at home. "When you go out to
commit a felony offense, leave your gun at home or you're going to get
tagged with a lot of additional time."
These agents carry guns in the line of duty. They have to carry
guns. This is a 17-minute-long segment of their life, from the
original dispatch at approximately 1:11 p.m. on the date in question
until when the all-clear is broadcast, 17 minutes of a high-speed
chase ending up at a ditch near the border. And Ramos, unlike
Compean, doesn't pick up his brass, doesn't fire 10, 11 or 12 times,
he makes one shot, one shot after hearing what he believed to be an
exchange of gunshots while he's down in the canal and not capable of
seeing what's going on.
If we're going to require our law enforcement officers to stop
and investigate who's shooting at who and what is going on before they
can rely on the actions of their fellow officers, we send a terrible
message out there, a terrible message.
And if I was...
(CROSSTALK)
FEINSTEIN: ... conclude, Mr. Botsford. You're over time.
BOTSFORD: Thank you very much. I'll be glad to try to answer
any questions, Senator. Thank you.
FEINSTEIN: Thank you very much.
My first question is of Deputy Chief Barker.
What should an agent do if a fleeing drug suspect is told to stop
and doesn't?
