By: Houston Criminal Attorney John T. Floyd and Mr. Billy Sinclair+
Fabens, Texas is located thirty miles southeast of El Paso just across the Rio Grande from Mexico. 95 percent of the people living in the town of 8,000 are poor and Hispanic. It’s a young town – the median age is 24 years compared to the median Texas age of 32. The average household income is $18,000 annually compared to $43,000 for the rest of Texas. In a nutshell, it’s a “dusty, little Border town” that stands as open invitation for major Mexican drug traffickers like Oswaldo Aldrete-Davila.
So it was that on February 17, 2005 Aldrete-Davila illegally crossed the border into the United States to transport drugs awaiting him. Drug running was Aldrete-Davila’s chosen career occupation. He reached a van parked in a remote area near Fabens. The van was loaded with 743 lbs of marijuana with a street value of more than $1 million. The keys were in the ignition. Aldrete-Davila hopped in the van and pointed it toward Fabens.
But Border Patrol Agent Jose Compean, who had been patrolling the area where Aldrete-Davila crossed the border, was alerted to the illegal crossing by a surveillance sensor. Compean reported on his police radio that the van leaving the area. Borden Patrol Agent Oscar Juarez was the first agent to spot the van.
Realizing he had been made “by the cops,’ Aldrete-Davila turned the van back toward Mexico – a criminal decision that triggered a high-speed pursuit by Border Patrol agents, including Ignacio Ramos who assumed the lead in the chase. All the agents involved in the pursuit were in direct communication with each other. The local Border Patrol station either did not receive or record these communications.
Worthy of a slot on TruTV’s “world’s dumbest criminals,” Aldrete-Davila drove the van into an irrigation ditch near the Rio Grande River and got stuck. He clambered out of the van, jumped into the ditch, and tried to reach a vega on the other side closest to the river. Just as he climbed out of the ditch, Aldrete-Davila found Compean standing on a levee road that bordered the ditch.
Holding a shotgun, Compean ordered the drug smuggler to stop and raise his hands in clear sight. Aldrete-Davila refused to comply with the instruction. Compean tried to push the suspect back down with his shotgun but slipped in the loose soil. Aldrete-Davila seized the moment to turn and flee toward the Mexican border. Compean jumped up and gave chase. The agent caught and tackled the drug runner, but was unable to maintain control of the suspect because he threw dirt in the agent’s face. Aldrete-Davila jumped up and continued to flee toward the border.
Aldrete-Davila then turned back toward Compean with something that appeared to be a weapon in his hand. Compean did not hesitate. His life was at stake. He quickly rose to one knee and emptied his weapon at the drug smuggler. As he had been trained to do, he ejected the empty magazine and injected a fresh clip into the weapon. By this time Aldrete-Davila had disappeared and Compean heard another shot. Then he saw Ramos.
Ramos had wheeled his vehicle in behind the drug-laden van driven by Aldrete-Davila. Just as he jumped out of his vehicle, he saw the drug suspect break free from Compean. Ramos charged into the ditch where he heard firing, although he could not see Compean firing his weapon. As he reached the levee road, Ramos saw Aldrete-Davila turn, with what appeared to be a weapon in his hand, back toward the bloodied Compean. With his fellow agent on the ground, Ramos also did not hesitate. He fired a single shot at the drug smuggler who disappeared.
Compean and Ramos assumed the fleeing drug smuggler had gotten away. They returned to the ditch. Compean picked up his ejected shell casings as the two agents walked. He threw the casings into the water in the irrigation ditch. About that time Border Patrol Agent Artura Vasquez arrived at the scene. Compean asked Vasquez to retrieve any casings he had missed. Vasquez found four additional casings and also threw them into the water in the irrigation ditch.
No harm, no foul. That was the general feelings of the agents at the scene. The bad guy had gotten lucky and managed to escape across the border. A supervisor showed up at the scene. He asked Compean if he had been assaulted. The agent replied that he had not been. Neither Ramos nor any of the other agents present reported to the supervisor that weapons had been fired. It was a costly error in professional judgment.+
Less than two weeks after the Fabens shooting incident, Arizona Border Patrol Agent Rene Sanchez learned from his mother-in-law that his long-time personal acquaintance Aldrete-Davila had been shot by Border Patrol agents in Texas. Agent Sanchez contacted the drug-smuggler who confirmed he had been shot in the buttocks by Texas agents. Agent Sanchez took this information to his supervisor who instructed him to pursue an investigation.
Agent Sanchez contacted the Border Patrol’s database which stores reports of all discharges of weapons by its agents. But there was no report of any weapon being discharged by an agent on or about February 17, 2005. Agent Sanchez was not satisfied. In March 2005 he once again discussed the shooting incident with Aldrete-Davila who informed the agent that the bullet was still lodged in his body.
Armed with this information, Agent Sanchez filed an investigative report which found its way to the Office of Inspector General in the U.S. Department of Homeland Security. The Aldrete-Davila shooting “investigation” was then assigned to Special Agent Christopher Sanchez who quickly ascertained that there was no written record of any shooting on February 17, 2005. But Agent Christopher Sanchez did learn that there had been a shooting near Fabens. The agent managed to gather information about where the actual shooting had taken place but found no physical evidence linking any Border Patrol agent to the shooting.
Special Agent Sanchez decided it was time to talk to Aldrete-Davila. He went to Mexico to personally talk to the drug smuggler, but the drug smuggler was uncooperative. He reportedly feared prosecution on drug charges in the United States if he said anything about the shooting. Assistant United States Attorney Johnny Sutton entered the picture and put the drug smuggler’s fears to rest by granting him immunity from prosecution on any criminal charges surrounding the February 17, 2005 incident. Special Agent Sanchez took this promise of immunity to Mexico where he told Aldrete-Davila that he would not be prosecuted for any of the February 17 events if he would cooperate with U.S. authorities.
The drug runner jumped at the deal. He was not only being given a “get out of jail free” pass but an opportunity to nail a couple of Border Patrol agents in the process. From the perspective of any low-life drug smuggler, it was a “sweet deal.” U.S. authorities promptly returned Aldrete-Davila to the United States at taxpayers’ expense and paid to have doctors remove the bullet from his body.
With the incriminating bullet in hand, Special Agent Sanchez went to Texas and collected the weapons of all Border Patrol agents who were on duty in the Fabens area on February 17, 2005. The bullet was ultimately matched to Ramos’ weapon. This evidence, and statements secured from another Border Patrol agent, Special Agent Sanchez identified Ramos and Compean as the agents who had fired at Aldrete-Davila and Ramos as the one who wounded him.
The two agents were arrested, and in an overwhelming show of government “overkill,” the agents were charged with the following crimes concerning the February 17, 2005 shooting incident:
- Count One – 18 U.S.C. §§7(3), 113(a)(1)&(2) (both Ramos and Compean): Assault with intent to commit Murder and Aiding and Abetting.
- Count Two – 18 U.S.C. §§ 113(a)(3) & 2 (Both): Assault with a Dangerous Weapon and Aiding and Abetting.
- Count Three – 18 U.S.C. §§ 113(a)(6) & 2 (Both): Assault with serious bodily injury and Aiding and Abetting.
- Count Four – 18 U.S.C. § 924(c)(1)(A) (Ramos): Discharge of a Firearm in Commission of a Crime of Violence.
- Count Five – 18 U.S.C. § 924(c)(1)(A) (Compean): Discharge of a Firearm in Commission of a Crime of Violence.
- Count Six – 18 U.S.C. § 1512(c)(1) (Compean): Tampering with an Official Proceeding.
- Count Seven – 18 U.S.C. § 1512(c)(2) (Compean): Tampering with an Official Proceeding.
- Count Eight – 18 U.S.C. § 1512(c)(2) (Both): Tampering with an Official Proceeding.
- Count Nine – 18 U.S.C. § 1512(c)(1) (Ramos): Tampering with an Official Proceeding.
- Count Ten – 18 U.S.C. § 1512(c)(1) (Compean): Tampering with an Official Proceeding
- Count Eleven – 18 U.S.C. § 242 (Compean): Deprivation of Rights Under Color of Law.
- Count Twelve – 18 U.S.C. § 242 (Ramos): Deprivation of Rights Under Color of Law.
Following a lengthy trial in 2006 at which both agents were convicted, Ramos, who had once been nominated Border Patrol Agent of the Year, was sentenced to eleven years in prison while Compean received a twelve-year prison term. The two agents have become cause celebes for many people in this country who feel the agents were the victims of an over-zealous federal prosecution.
On July 28, 2008 the Fifth Circuit Court of Appeals vacated the “tampering with an official proceeding” convictions against the two agents but upheld their convictions and sentences for all other counts. The Fifth Circuit concluded: “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.” United States v. Ramos and Compean, No. 06-51489, Slip Opinion, p. 2-3.
The only three people who know all that happened that day in February 2005 near Fabens, Texas are Ramos, Compean, and Aldrete-Davila. There are two things for certain: First, there was a shooting incident that resulted in a bullet in the buttocks of Aldrete-Davila, and, second, Ramos and Compean “covered up” the shooting by not following proper Border Patrol procedures in failing to report it. Contrary to what the Fifth Circuit called the “bottom line on guilt or innocence of these two agents,” the evidence supporting these two related occurrences was, and remains, woefully inadequate.
The heart of the government’s criminal accusation against Ramos and Compean was stated by the Fifth Circuit as follows: “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.” Id., at 2.
The only evidence the government had to support its premise that Ramos and Compean violated this longstanding Fourth Amendment protection was the testimony of a career drug smuggler. And what about Aldrete-Davila’s credibility as a government witness? He crossed the border illegally, he went straight to a van loaded with a million dollars worth of marijuana, and was in the process of delivering the dope to American drug dealers when Border Patrol agents closed in on him – all self-serving incentives to lie.
And what did the drug smuggler do when faced with law enforcement apprehension? He immediately fled back toward the border to escape the authorities – and when confronted by Compean on the levee road, he resisted arrest, struggled free, and fled again. Even after Compean had emptied his weapon at the fleeing suspect, Aldrete-Davila turned back to Compean, who was still on the ground, with what appeared to be a weapon in his hand. Compean saw something, and so did Ramos who had only a split second to fire off a round from his own weapon to protect Compean. It was that bullet that struck the drug runner in the buttocks.
Aldrete-Davila denied turning around to face Compean with something in his hand. He said he kept running toward the border, saw dirt being kicked up around him by bullets, and fell after being shot in the buttocks. He said he waited for Ramos and Compean to come arrest him but they never did. After making his way back across the border, his drug trafficking comrades took him to a hospital for treatment. The Fifth Circuit significantly concluded that Aldrete-Davila’s “wound offered no conclusive corroboration of any witness’s version of events.” Id., at 7.
The jury chose to believe the drug smuggler. Why? Who knows. The answer is blowing in the wind somewhere in West Texas. But the decision clearly begs both scrutiny and criticism. While Ramos and Compean certainly deserved reprimand or some other discipline for failing to follow proper procedure after the shooting incident, the shooting at, and wounding, a career drug trafficker after he tried to deliver one million dollars worth of illegal drugs in this country was not by any stretch of rational assessment a “crime of violence” as charged by the U.S. Attorney’s Office.
The very integrity of the federal government has been called into question in the Ramos/Compean case. Such diverse political forces as liberal California Democratic Senator Dianne Feinstein and conservative Texas Republican Senator John Cronyn have harshly criticized the federal prosecution of the two agents based solely on the testimony of an admitted drug trafficker.
“It’s devastating,” T.J. Bonner, president of the National Border Patrol Council union, said after the Fifth Circuit ruling. “It means if you use your weapon in self-defense, you can be looking at 10 years in federal prison. And that’s not really the message the court should be sending, not just to Border Patrol agents, but to every law enforcement agent in America.”
Bonner expressed a very real and legitimate concern. Last year Border Patrol Chief David Aguilar told a congressional committee that between February 1, 2005 and June 30, 2007, there were 1,982 assaults against Border Patrol agents. These assaults included rock throwing, physical assaults (including vehicular assaults), and shootings. Border Patrol agents responded to these assaults with 144 agents discharging their weapons during 116 incidents of “the use of deadly force.” The result: 13 assailants died and 15 were wounded.
“’This is going to be devastating to the U.S. Border Patrol,” said Curtis Collier, president of U.S. Border Watch, in a Houston Chronicle interview about the Fifth Circuit ruling. ”Morale will plummet, and the risk to agents on the border will certainly increase because this will be known all the way back into Latin America.”
Anticipating this kind public criticism, the Fifth Circuit brushed it aside by saying that “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.” Id.
The only evidence presented by the government that Aldrete-Davila did not have a weapon in his hand when he turned back to Compean, who was bleeding on the ground, was the drug smuggler’s own self-serving testimony. Yes, self-serving testimony! When Special Agent Sanchez made his first trip to talk to Aldrete-Davila in Mexico, the career criminal did not want to do the “right thing” and cooperate because he was afraid of being indicted on drug smuggling charges. It was only after the drug smuggler secured the “kiss and tell” sweetheart deal that he decided to cooperate with the government and testify that he did not have a weapon, that he did not pose any threat to the agents, and that he was just trying to get back across the border.
Aldrete-Davila’s version of the events on the levee road that February 2005 day was not worthy of belief when he sold it to the government; it was not worthy of belief at the trial of Ramos and Compean; and it is not worthy now despite the Fifth Circuit’s recent convoluted effort to give it credibility.
In the wake of the Fifth Circuit’s decision, Senators Feinstein and Cornyn announced that they would request that President Bush commute the sentences of Ramos and Compean. Frighteningly, President Bush seems to be the last hope that justice will prevail for these two Border Patrol agents who risked their lives doing what the government and people asked of them: protect the nation’s border from dangerous drug smugglers like Aldrete-Davila.