Wednesday, January 24, 2007


Wrong law used to convict Border agents.
What crime is committed when two Border Patrol agents shoot a drug smuggler in the side of the buttocks who has pointed what appears to be a gun at them and has abandoned a van containing 743 pounds of marijuana?

By de Andréa

Border Patrol Agents Ignacio Ramos and Jose Alonso Compean each now beginning their more than ten year jail sentence were charged under a statute that only applies to criminals in the commission of a crime and thus did not apply to the facts of their case.

Ramos and Compean were convicted of violating 18 U.S.C. Section 924(c). This statute was written to increase the penalties when a violent criminal, such as a drug trafficker or a rapist, carries or uses a weapon during the commission of the crime. Ramos and Compean were not violent criminals carrying and shooting a gun in the commission of a crime. Moreover they are law enforcement officers, and are issued weapons by the Border Patrol to carry in the normal pursuit of their duties.

Ironically, Ramos and Compean were trying to apprehend an escaping suspect who was a drug smuggler and who turned and pointed what appeared to be a gun at them. How is it that a law meant to punish armed drug smugglers is applied, to prosecute the two Border Patrol agents who attempted to apprehend an illegal alien criminal and known drug smuggler?

18 U.S.C. Section 924(c) has only been applied to law enforcement officers who they themselves commit heinous crimes, outside the scope of their official duties Ramos and Compean were within the scope of their official duties when they fired at an illegal drug smuggler known as Osbaldo Aldrete-Davila, who they believe to be armed and dangerous and a threat to their lives

When this question was asked by World Net Daily, “But the original intent of that law, as I understand it, was to increase the punishment for criminals who when perpetrating their crimes discharge weapons. Is that not correct?

To which John Sutton U.S. prosecutor replied, “I can't speak to what the Congressional intent was. All I can speak to is what the law says and the law says what it says, and it doesn't make any exception for law enforcement officers. It says,” “ that if you commit a crime of violence and you use a firearm during a crime of violence, it is a ten year mandatory minimum sentence stacked on top of what time you already have, no exception is made for law enforcement officers. The judge applied the law and if people want to change the law, then you can talk to their representatives.”

What crime were Ramos and Compean committing, during which they decided to fire their weapons? Surely, Sutton does not consider it a crime for Border Patrol agents to attempt to stop and seek to arrest a person they suspect of trying to shoot at them and smuggling drugs across the border.

The misapplication of Section 924(c) in this case is setting a dangerous precedent of application to law enforcement officers trying to act within the scope of their official duties. On appeal, the convictions should be dismissed because the prosecutor charged these Border Patrol agents under a law whose scope was clearly misapplied.

The real issue in this case should have been whether Ramos and Compean had justification for discharging their weapons in this situation. The applicable law would seem to first involve the INS Firearms Policy. In that policy, there appears to be the following.

Section 7(A). Discharging a firearm shall be done only with the intent of stopping a person or animal from continuing the threatening behavior which justifies the use of deadly force. When deadly force is justified, an officer may use any level of force necessary up to and including deadly force. Section 7(B). Firearms may be discharged under the following circumstances:
(1) When the officer reasonably believes that the person at whom the firearm is to be discharged possesses the means, the intent, and the opportunity of causing death or grievous bodily harm upon the officer or another person.

In explaining why agent Compean discharged 14 rounds and failed to hit the fleeing suspect, Sutton explained that agent Compean was experiencing a heightened physiological reaction that is commonly identified as a normal physical response to a perceived sense of imminent danger.

The U.S. Army doctor who removed the bullet testified at the trial that the drug smuggler was not shot from behind, but that he removed the bullet from the side, with the bullet piercing the left side of his left buttock and traveled to his right groin. The doctor stated that Aldrete-Davila was not in a running position when he was shot, it was consistent with pointing back toward the agents with his left arm and hand when the bullet hit him in the side of his buttocks. This is consistent with the testimony of the agents that they saw Aldrete-Davila pointing something back at them which they believed to be a gun.

Moreover, why would Ramos or Compean have any reason to believe Aldrete-Davila was hit by any of their shots? From the testimony at the trial, Aldrete-Davila got across the Rio Grande and disappeared into the tall, thick brush along the river. A short time later, Border Patrol agents observed Aldrete-Davila running across the dry river bed where he jumped into a waiting vehicle with two other suspects.

Yet, from the get-go, Sutton cleverly reframed the issue to bias the trial in the government's favor. This was the point of charging Ramos and Compean inappropriately under 18 U.S.C. Section 924(c). The statute presumes those charged, namely Border Patrol Agents Ramos and Compean, were involved in the commission of a crime when they fired their weapons. This is totally inaccurate and misleading given the facts of the case. Yet, the presumption of 18 U.S.C. Section 924(c) – that criminal behavior was already being conducted by the accused, appears precisely suited to the impression Sutton wanted to create. The criminals here, according to Sutton, are the law enforcement officers. Every presumption Sutton made was sympathetic to the drug dealer in this case.

If any criminal action were ever to be brought in this issue, an unbiased prosecutor would have brought charges accusing the Border Patrol defendants of discharging their weapons inappropriately under the provisions of the INS Firearms Policy, not for violating 18 U.S.C. Section 924(c). The suggestion in the indictment itself was that the Border Patrol agents were somehow already criminals when they fired their weapons.

By charging the agents under an inappropriate statute, prosecutor Sutton focused the inquiry on the supposed criminal behavior of the agents, rather than on the narrow issue of whether the Border Patrol agents had reasonable cause to believe the fleeing suspect was a drug-smuggling criminal who most likely did have a concealed weapon on his person.

There is nothing in this case, except the subtle presumption framed by the indictment, to suggest that Aldrete-Davila was anything but a criminal perpetrator. How can anyone fail to notice that the U.S. Attorney's office has in this case managed to transform a drug-smuggling perpetrator into the victim, and two border patrol agent into criminals?

We should also note that one reason the prison terms of 11 and 12 years served up to Ramos and Compean respectively seem excessively harsh is because 10 years is the mandatory prison term attached to violations of 18 U.S.C. Section 924(c),. This is the added penalty which the legislators who wrote 18 U.S.C. Section 924(c) felt anyone already committing a serious crime, such as drug smuggling or rape, should have to pay as an add-on for the additional offense of carrying or discharging a firearm in the commission of the drug smuggling offense or rape. In other words, the excessive jail terms given Ramos and Compean is additional evidence that prosecutor Sutton brought the indictments under an inappropriate statute

That Sutton was drawn to the presumption that the Border Patrol agents in this case were the bad guys, and weighs heavily upon the credibility of the Bush administration to be serious about protecting U.S. citizens by securing our border. I strongly believe that with Ramos and Compean in prison, U.S. Attorney Sutton has given Osbaldo Aldrete-Davila the upper hand in suing the Border Patrol for $4 million for violating his civil rights.

If Osbaldo Aldrete-Davila, a drug smuggling ''dirt bag'' from Mexico, ends up being rewarded $4 million while Border Patrol Agents Ramos and Compean are in federal prison, I believe President George W. Bush will once and for all lose the sympathy and credibility of the American people on the issue of border security.

One could then rightly conclude that George W. Bush has always had only one intention and that is to do anything necessary to force another ''guest-worker amnesty'' down the throat of the American people. This is the bill the Bush administration supported in the 109th Congress and it is the bill we suspect the Bush administration will force once more in the 110th Congress.

Meanwhile, the clever attorneys for Osbaldo Aldrete-Davila will be preparing to sue by calling the U.S. Attorney's office forward to testify as they pursue their client's claim for damages against the falsely convicted and imprisoned Border Patrol agents.

de Andréa

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