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Border agent reinstated with back pay in retrial

- The Washington Times - Tuesday, June 19, 2007

A former U.S. Border Patrol agent, whose conviction in federal court for using excessive force during the arrest of an illegal alien was overturned because of prosecutorial misconduct, has been ordered reinstated with full back pay.

The District-based Merit Systems Protection Board ordered that Agent David J. Sipe, 35, of Bethany, Okla., be returned to full duty following his acquittal on all charges during a court-ordered retrial in January.

The order, granting full back pay and interest to April 2001, was signed last week by Administrative Judge Anna M. Love.

Mr. Sipe won a new trial after disclosures that an illegal alien received a "get out of jail free card" plus U.S. legal documents and monetary compensation from federal prosecutors in exchange for his testimony against the agent, accused of using excessive force during the 2000 arrest of Mexican national Jose Guevara.

A federal appeals court in Texas ordered the new trial, saying prosecutors gave Mr. Guevara and two other illegal aliens additional inducements not disclosed at the time for their testimony, including Social Security cards, witness fees, permits allowing travel to and from Mexico, living expenses and free use of government phones.

"The government stated in writing the aliens were allowed to remain and work in the United States pending trial and specified that 'no other promises or advantages' had been given," the court said. "That was not true."

Mr. Sipe was convicted in 2001 after a five-day jury trial in McAllen, Texas, before U.S. District Judge Ricardo Hinojosa. U.S. Attorney Mervyn Mosbacker Jr.'s office charged the agent with using excessive force and causing bodily injury in the arrest.

But Mr. Sipe's attorney, Jack Lamar Wolfe, sought a new trial, accusing prosecutors of "misrepresentations and nondisclosures" and, after a hearing, Judge Hinojosa ordered a new trial — a ruling upheld by a 5th U.S. Circuit Court of Appeals panel in Austin, Texas.

The appeals court said prosecutors suppressed evidence that would have been favorable to Mr. Sipe's defense. The new trial was moved to Brownsville, Texas, before U.S. District Judge Andrew Hanen and an acquittal was handed down Jan. 26.

In its ruling, the appeals court also said that the government failed to disclose information that after Mr. Sipe's arrest and before the trial, Mr. Guevara was caught by Border Patrol agents in the company of illegal aliens, and the arresting agents released him when he displayed a card given to him by prosecutors.

Mr. Sipe was indicted in November 2000 for using excessive force. Before the trial began, he filed motions seeking, among other things, what benefits the government gave the aliens.

In 2000, Mr. Sipe was on the border near Penitas, Texas, responding to a sensor alarm when he spotted 12 to 15 illegal aliens. After ordering the group to halt, records show, Mr. Guevara and two others fled into an area of heavy reeds. Mr. Sipe said he was defending himself when he struck Mr. Guevara with a flashlight.

Mr. Guevara required five stitches in his head and later won an $80,000 settlement from the government.