U.S. v. Ramos

• Decision Date: 28 July 2008
• Docket Number: No. 06-51489.,06-51489.
• Citation: 537 F.3d 439
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ignacio RAMOS; Jose Alonso Compean, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

537 F.3d 439

UNITED STATES of America, Plaintiff-Appellee, v. Ignacio RAMOS; Jose Alonso Compean, Defendants-Appellants.

No. 06-51489.

United States Court of Appeals, Fifth Circuit.

July 28, 2008.

Joseph H. Gay, Jr., Mark Randolph Stelmach (argued), Asst. U.S. Attys., San Antonio, TX, for U.S.

David L. Botsford (argued), Law Office of David L. Botsford, Austin, TX, Mary Stillinger, El Paso, TX, for Ramos.

J. Mark Brewer, Brewer & Pritchard, Houston, TX, Richard Abbott Samp, Daniel J. Popeo, Paul D. Kamenar, Washington, Legal Found., Washington, DC, for Amici Curiae.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, HIGGINBOTHAM and PRADO, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The two Border Patrol agents, appellants Ignacio Ramos and Jose Compean, were engaged in routine law enforcement along the United States-Mexico border near Fabens, Texas, when they became involved in chasing an alien drug smuggler driving a van as he speeded toward the Mexican border. After the drug smuggler abandoned the van and began to run on foot toward the Mexican border, the agents gave chase, fired their weapons at him several times, and hit him once, but the wound did not prevent his escape into Mexico.

After the incident, there was a "cover-up" — including a clean-up of the area of spent shells and a failure by the two agents to report the weapon-firing incident, as plainly required by well-established Border Patrol policies.

But through a series of fortuitous events, the incident was revealed and then investigated by the Border Patrol. That investigation resulted in these convictions of the two agent-appellants for numerous offenses relating to unlawfully discharging their weapons and concealing the offense. They are now serving lengthy terms in prison.

At trial, the facts were sharply and hotly disputed. The government's evidence showed that the agents had no reason to shoot the drug smuggler — that he had abandoned his van loaded with marijuana, that he was running on foot back to Mexico, that he posed no physical threat to either officer, and that he was shot in the buttocks. It is well established that the Fourth Amendment to the United States Constitution does not permit officers to shoot a fleeing suspect unless the suspect poses a threat to the physical safety of the officers or to the public.

The defendants' evidence presented a much different version of the facts from that presented by the government. They testified that they saw something appearing to be a weapon in the drug-smuggler's hand, that the situation was tense, that they felt in danger, that they acted as reasonable officers in pursuit of a possibly dangerous drug smuggler, and that firing a weapon was justified. Furthermore, they testified that their failure to report the incident was only a matter of negligence.

Once at trial, this case was hardly more than a dispute between these two sets of facts.

The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government's evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on guilt or innocence of these agents.

On appeal, we will address some of the errors, legal and evidentiary, alleged to have been committed by the trial court. Many arguments are made by the agents. We will address their primary arguments and we will find merit in some. Accordingly, we will reverse and vacate the convictions on some counts and vacate the sentences on those counts. However, this may not be of much moment to Ramos and Compean because we leave the major conviction with the major sentence — 18 U.S.C. § 924(c) — untouched.

In this prefatory statement we should note that the rather lengthy sentences imposed on the defendants — eleven years and a day and twelve years respectively — result primarily from their convictions under § 924(c). Why? Because Congress directed a mandatory minimum sentence of ten years for all defendants convicted under this statute, i.e., using a gun in relation to the commission of a crime of violence. The underlying crime of violence with which the defendants were charged is assault within the special territorial jurisdiction of the United States. Once the defendants were charged by the government and convicted by the jury under this statute, the district court had no discretion but to impose at least a ten-year sentence. Thus, the sentences in this case reflect the mandatory ten years for violation of § 924(c), and one year and a day and two years, respectively, for the remaining several convictions.

The defendants were convicted for assault, discharge of a weapon in the commission of a crime of violence, tampering with an official proceeding, and deprivation of civil rights. We AFFIRM all convictions except those for tampering with an official proceeding, which we VACATE. We REMAND for resentencing.

We turn now to consider the appeal and begin with a more comprehensive rendition of the facts.

I.

As we have indicated, this case features competing narratives. The government argues that the defendants acted effectively as vigilantes, shooting Oswaldo Aldrete-Davila without adequate provocation and then attempting to cover up their crime by failing to report the shooting and, in the case of Compean, by destroying evidence. The defendants vigorously press a different version of events, one in which they responded to a direct threat posed by Aldrete-Davila and subsequently made innocent mistakes related to their reporting duties.

The investigation that led to the defendants' arrests, trial, and convictions began on February 28, 2005, with Rene Sanchez, a Border Patrol Agent stationed in Arizona. Sanchez learned from his mother-in-law that a long-time personal acquaintance of his, Aldrete-Davila, had been shot while attempting to escape the Border Patrol in Texas. Agent Sanchez contacted Aldrete-Davila, who confirmed that he had been shot by the Border Patrol earlier that month, on February 17. Agent Sanchez reported what he had learned to his supervisor, who instructed him to continue investigating the incident. But Agent Sanchez was frustrated in this attempt. He consulted the Border Patrol's national database of reported firearms discharges, but found no record corresponding to Aldrete-Davila's report. Agent Sanchez spoke with Aldrete-Davila again in March 2005 and learned that the bullet from the shooting was still lodged in Aldrete-Davila's body. Agent Sanchez included this information in the memorandum of the investigation that he filed.

The investigation into the border shooting was then taken up by Christopher Sanchez, a special agent with the Office of the Inspector General in the Department of Homeland Security. Like Rene Sanchez, Special Agent Sanchez was unable to find any record of a reported shooting on February 17, 2005. But he did determine that the shooting had happened near Fabens, Texas. He located the specific area in which the shooting was reported to have happened, but found no evidence — shell casings or otherwise — that would have identified the Border Patrol agents involved in the shooting.

Special Agent Sanchez made contact with Aldrete-Davila, but found that Aldrete-Davila was unwilling to speak to him due to concerns about prosecution in the United States. Ultimately, Aldrete-Davila's fears were allayed with a promise of immunity from the United States Attorney. Special Agent Sanchez delivered the immunity agreement to Aldrete-Davila in Mexico and explained to Aldrete-Davila that, in exchange for his truthful testimony, the government would not prosecute him for the February 17 events. Aldrete-Davila agreed to cooperate. Still, Special Agent Sanchez was unable to ascertain the identity of the Border Patrol agents involved in the shooting. Aldrete-Davila was then brought to the United States so that the bullet could be removed from his body for use in Special Agent Sanchez's investigation.

Special Agent Sanchez then obtained the firearms of all the Fabens area Border Patrol agents on duty on the day of the shooting. The bullet was matched with the firearm of Ignacio Ramos. Based on this evidence and the testimony of another Border Patrol agent, Special Agent Sanchez was ultimately able to identify Ramos and Compean as the Border Patrol agents who had fired upon Aldrete-Davila.

Aldrete-Davila is a drug trafficker. On the day he was shot, he had agreed to transport drugs already located in the United States. He illegally crossed the border on February 17 in order to reach a van that he had agreed to drive. The van was parked near Fabens and contained a large load of marijuana. The keys to the van were already in its ignition, and Aldrete-Davila began driving it towards Fabens.

Compean was patrolling the area near where Aldrete-Davila crossed the border and was alerted to a border crossing by a surveillance sensor. Compean reported a van leaving the area over his radio. Border Patrol Agent Oscar Juarez then spotted the van. At this point, Aldrete-Davila decided to try to escape back into Mexico, and a high-speed pursuit began. Agent Juarez was eventually joined by Ramos, who took the leading position in the chase. During this period, the pursuing agents communicated directly with one another; the Border Patrol station did not receive or record their communications, leaving their supervisors generally unaware of the details surrounding the pursuit.

The chase ended when Aldrete-Davila's van became stuck at the edge of a deep irrigation ditch near the Rio Grande river. Aldrete-Davila left the van and went into the ditch, intending to cross it, flee across the vega behind it, and reach the Rio Grande. Aldrete-Davila made it to the other side of the ditch and found Compean waiting for him on the levee road bordering the ditch. At this point,...