Border agents' appeal gets stiff questions for proseuction

Houston Chronicle:

A federal appeals judge said Monday that prosecutors overreacted by charging two former U.S. Border Patrol agents — imprisoned for shooting a fleeing drug smuggler — with a firearm charge that carried a lengthy prison sentence.

A three-judge panel in the Fifth Circuit Court of Appeals heard arguments by attorneys for Ignacio Ramos and Jose Compean, who are serving sentences of 11 and 12 years in prison, respectively, for shooting a smuggler in the buttocks and covering it up in February 2005.

"It does seem to me like the government overreacted here," said Judge E. Grady Jolly, questioning Assistant U.S. Attorney Mark Stelmach before a crowded courtroom. "There were plenty of statutes you could have charged."

The judges pressed the prosecution for answers on a range of legal issues — from the choice of which charges to bring, to the scope of an immunity agreement with the drug smuggler, who was recently indicted in connection with a separate marijuana load.

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Jolly questioned whether Ramos and Compean would have been prosecuted at all if they had reported to their supervisors the shooting of Osvaldo Aldrete Davila, who was wounded on Feb. 17, 2005, near Fabens, southeast of El Paso.

Aldrete had ditched a van containing 743 pounds of marijuana and was trying to flee to Mexico when he was shot. At the scene of the shooting, Compean picked up his shell casings, and neither agent volunteered to supervisors that they'd fired their weapons.

"They are being prosecuted for hiding the crime," Jolly said, suggesting the prosecution "got out of hand."

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Judge Patrick Higginbotham questioned the prosecution's attempts to block the jury at Ramos and Compean's trial from hearing information about evidence of another marijuana smuggling incident that allegedly occurred after Aldrete was shot, but before trial.

On Nov. 15, Aldrete was arrested in connection with a smuggling load from the fall of 2005.

The defense was not allowed to introduce evidence of the second load of marijuana at the agents' trial in U.S. District Court in El Paso in 2006.

Higginbotham said the jury may have been less inclined to believe Aldrete's assertion he was just a low-level mule, a courier with little knowledge of the smuggling business, if they knew about a second drug load.

Stelmach replied that the defense had the opportunity to prove that Aldrete was more than just a mule but failed to convince the jury.

Higginbotham countered that the jury never heard the supporting facts of the argument, since evidence of the subsequent smuggling attempt was ruled inadmissible.

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It appears that the suppression of evidence about the drug mules other activities may be enough to get a new trial for the border agents. It would be impossible to suppress that evidence in a new trial, not only because of an appeals court ruling, but also because the mule has been indicted and charged now on the subsequent offense. Hopefully the appeals court will find some justice for the border agents.