- The Washington Times - Tuesday, July 29, 2008

Two U.S. Border Patrol agents sentenced to lengthy prison terms for shooting a drug-smuggling suspect in the buttocks as he fled back to Mexico were “properly convicted of substantive crimes,” a federal appeals court panel ruled Monday, saying the evidence presented at their trial “fully supports the jury verdict.”

While the ruling by the 5th U.S. Circuit Court of Appeals in New Orleans vacated five minor counts in a 12-count indictment against Border Patrol Agents Ignacio Ramos and Jose Alonso Compean, it let stand seven other charges — including assault and the discharge of a firearm during a crime of violence, which resulted in 10-year mandatory sentences.

Ramos, 37, received an 11-year prison sentence, and Compean, 28, a 12-year sentence in October 2006 for shooting Osvaldo Aldrete-Davila in February 2005 when he was running from a van loaded with 743 pounds of marijuana near Fabens, Texas. The agents testified during their trial that they thought Mr. Aldrete-Davila had a weapon.

“For the most part, the trial of this case was about credibility, and although the jury could have gone either way, it chose not to believe the defendants´ version of the crucial events of February 17,” the court said. “The trial of the case was conducted fairly and without reversible error.”

The appeals court panel noted that U.S. District Court Judge Kathleen Cardone in El Paso, Texas, who heard the case, acted within the law when she excluded evidence from the jury about the size of the marijuana load and Mr. Aldrete-Davila’s suspected involvement in a second drug-smuggling venture in October 2005, saying the judge did not violate the agents’ right to due process.

The panel consisted of appellate Judges Patrick E. Higginbotham, who was appointed to the bench in 1975 by President Ford; E. Grady Jolly, named to the bench in 1982 by President Reagan; and Edward Charles Prado, appointed in 2003 by President Bush.

Mr. Aldrete-Davila, 27, was arrested in November by U.S. Drug Enforcement Administration agents in El Paso on a federal grand-jury indictment charging him with conspiracy and possession with the intent to distribute marijuana. The indictment said he brought a second load of 752 pounds of marijuana into the U.S. in October 2005, eight months after he had been shot by the agents.

U.S. Attorney Johnny Sutton, whose office prosecuted the case, said he was “pleased” with the ruling. He said the appeals court “validated what this office has said all along: This prosecution was about the rule of law, plain and simple.”

But Sen. John Cornyn, Texas Republican, expressed his “strong disappointment” with the ruling, saying that because the agents’ legal options are now “virtually exhausted, save for intervention by the U.S. Supreme Court,” Mr. Bush “must step forward and commute their sentences.”

“While I am still reviewing this opinion, it´s clear that Ignacio Ramos and Jose Compean will not receive the relief that they deserve,” he said. “As I have long said, it is incomprehensible to me that an illegal alien drug smuggler was allowed to violate his immunity agreement, perjure himself and be granted a series of unlimited visas to roam free in our country while two border patrol agents were given excessive prison sentences.”

Reps. Duncan Hunter and Brian P. Bilbray, both California Republicans, echoed Mr. Cornyn’s remarks.

The two agents were on patrol along the U.S.-Mexico border when, according to the appeals court panel, they chased “an alien drug smuggler driving a van as he speeded toward the Mexican border.” The court panel said that after the “drug smuggler” abandoned the van and began to run to the border, the agents gave chase and fired their weapons at him several times.

But after the chase, there was a “cover-up” that included a cleanup of the shooting site of spent shells and a failure by the agents to report they had fired their weapons — as “plainly required by well-established Border Patrol policies,” the court panel said.

“Through a series of fortuitous events, the incident was revealed and then investigated by the Border Patrol,” the panel said, adding that the probe resulted in the convictions of the two agents on numerous counts and “lengthy terms in prison.”

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