- The Washington Times - Monday, February 19, 2007

An illegal alien got a “get out of jail free card” plus U.S. legal documents and monetary compensation from federal prosecutors in exchange for his testimony against a U.S. Border Patrol agent accused of using excessive force during an arrest.

Former agent David Sipe, who was convicted and fired, recently won an acquittal at a court-ordered retrial.

A federal appeals court in Texas ordered the new trial, saying prosecutors gave the illegal alien and two others 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, 35, of Bethany, Okla., 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 2000 arrest of a Mexican national, Jose Guevara.

Mr. Sipe’s attorney, Jack Lamar Wolfe, sought a new trial, accusing prosecutors of “misrepresentations and nondisclosures.” 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 agreed that 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.

The court said that in its pre-sentence report, prosecutors disclosed information to a probation officer they had not given to the defense, including evidence that the illegal aliens had received numerous benefits in exchange for their testimony.

“They were essentially given all, and more, of the benefits they were arrested for trying to obtain illegally benefits so valuable that they took great risks to obtain them by crossing the border illegally,” the court said.

Mr. Sipe, through his attorney, is seeking to be reinstated. Mr. Wolfe said his client was fired because of the conviction “and for no other reason, so with that conviction now gone, he ought to be able to get his job back.”

In its ruling, the court also said the government failed to disclose 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.

“Since Guevara had been granted free passage in his deal with the government, his arrest with illegal aliens was evidence that he was a transporter, as well as evidence of the extent of the government’s support accorded him in order to obtain his testimony,” the court said. “As the defense termed it, Guevara was given a ‘get out of jail card.’ ”

The court said that although there was evidence of Mr. Sipe’s guilt, the prosecution’s withholdings prevented him from exposing “significant weaknesses in the government’s case at every turn.”

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 had given the aliens. The government responded by saying three aliens who would be called to testify Mr. Guevara, Nehemias Diaz and Evarado Sanchez and were allowed to remain in the United States to work pending trial, but that “no other promises or advantages” had been given.

The court said the government also failed to disclose that the other two illegal aliens called to testify in exchange for immunity had been living with Mr. Guevara during the months before trial.

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, Mr. Diaz and Mr. Sanchez 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.

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