- The Washington Times - Monday, September 24, 2007

Two former U.S. Border Patrol agents sentenced to lengthy prison terms for shooting a drug-smuggling suspect have asked a federal appeals court to overturn their convictions, saying they were charged with a nonexistent crime and convicted after the jury was given improper instructions by the trial judge.

Houston defense lawyer J. Mark Brewer said two counts of a grand jury indictment against former agents Ignacio Ramos and Jose Alonso Compean charged them under a federal statute with the discharge of a firearm in relation to a crime of violence, but the statute does not define a crime and contains only a sentencing factor to be addressed after conviction.

Mr. Brewer said in a 20-page motion that the “improperly-crafted indictment” misfocused the agents, counsel and jury on a nonexistent crime of unlawful discharge of a firearm, because the agents were authorized to possess, carry and use a firearm in the normal course of their job.

He said that in order to charge a crime under the government’s 10-year mandatory sentence statute, an indictment “must allege that a defendant either has used or carried a firearm … during and in relation to any crime of violence or has possessed a firearm in furtherance of such a crime.” He said the prosecution “misstated” the crime defined by federal statute.

Mr. Brewer said the district court “erroneously told the jury the federal statute made it a crime for anyone to discharge a firearm during and in relation to a crime of violence.”

A ruling in the case is expected next month.

“This is an outrageous case of prosecutorial abuse,” said Paul Kamenar, senior executive counsel for the Washington Legal Foundation, a watchdog group among eight organizations and persons who have filed briefs in support of the agents. “Instead of prosecuting the drug smuggler, the Justice Department filed a dozen felony charges against two agents trying to do their job.”

The pending appeal is being heard by the 5th U.S. Circuit Court of Appeals in New Orleans and seeks to overturn 11- and 12-year prison terms Ramos and Compean received, respectively, after they shot Osbaldo Aldrete-Davila in the buttocks when he abandoned a van containing 743 pounds of marijuana and fled back into Mexico.

The agents were convicted of causing serious bodily injury, assault with a deadly weapon, discharge of a firearm in relation to a crime of violence and a civil rights violation. They testified that they fired shots after seeing a gun in Mr. Aldrete-Davila’s hand. Mr. Aldrete-Davila later was located in Mexico by a Homeland Security investigator and was given immunity to testify against the agents.

Sentencing guidelines say a person convicted of a crime of violence and using a firearm during that crime faces a 10-year mandatory minimum.

But Mr. Brewer said prosecutors “deliberately departed” from established practices in the mandatory sentence statute, “bringing into sharp focus the culminating shooting event in an effort to divert attention” from the lawful actions that the agents had been doing.

He said the government’s charges were “tailored to fit the prosecutorial theme” and adversely affected the fairness of the entire trial, “depriving defendants of any opportunity to present to the jury that they were using and carrying their firearms during and in relation to their employment as Border Patrol agents.”

In the Washington Legal Foundation brief, the organization said unless the convictions and sentences are reversed they will have a chilling effect on the ability of Border Patrol agents and other law-enforcement authorities to carry out their duties to protect the borders against drug smugglers, terrorists and illegal aliens who resist arrest.

“Agents and the rest of the country would thus be exposed to more danger if the convictions were allowed to stand,” it said.

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