Two reports clash on agents - study also fails to back what House members were told (Ramos/Compean)

San Bernardino Sun ^ | 02/08/2007 | Sara A. Carter

[calcowgirl]

A new Department of Homeland Security report about two Border Patrol agents convicted of shooting a drug smuggler directly contradicts key conclusions reached by the department's own investigator on the case.

The report also does not support assertions about the agents made by the department's Office of Inspector General to several members of Congress during a private meeting last fall.

The Report of Investigation, written Nov. 20 - 21 months after the shooting - and released Wednesday, concludes that nine other agents at the scene of the shooting did not know it had taken place and thus were not responsible for reporting it.

The report states that Border Patrol agents Ignacio Ramos and Jose Alonso Compean shot smuggler Osbaldo Aldrete-Davila, then tried to cover up the incident by failing to file a report. It also asserts that the other agents on the scene were not aware shots had been fired.

All the names - other than Ramos, Compean and Aldrete- Davila - of those at the shooting scene, as well as several pages of the Border Patrol's firearms policy, were blacked out in the report.

"Subsequently, the DHS OIG investigation found no evidence to suggest that (names redacted) had any knowledge of an assault on a BP agent, nor did (names redacted) have any knowledge of a reportable shooting incident ...," the report states.

But that finding directly contradicts a Department of Homeland Security memo written March 12, 2005 - less than a month after the Feb. 17, 2005, shooting - by Christopher Sanchez, the original investigating officer for the Homeland Security Inspector General's Office.

In the memo, one of several confidential Homeland Security documents about the incident obtained by The Sun's sister newspaper based in Ontario, the Inland Valley Daily Bulletin, Sanchez wrote that all the Border Patrol agents on scene, including two supervisors, knew about the shooting when it happened and failed to report it.

"Investigation disclosed that the following Border Patrol agents were at the location of the shooting incident, assisted in destroying evidence of the shooting, and/or knew/heard about the shooting: Oscar Juarez, Arturo Vasquez, Jose Mendoza, David Jaquez, Lance Medrano, Lorenzo Yrigoyen, Rene Mendez, Robert Arnold, and Jonathan Richards," Sanchez wrote.

Richards and Arnold were the supervisors on scene.

Further, Border Patrol firearms policy prohibits agents involved in a shooting from filing a written report on the incident, as reported earlier this week.

The policy requires that supervisors or investigators file the report within three hours of the incident.

"Ensure that supervisory personnel ... are aware that employees involved in a shooting incident shall not be required or allowed to submit a written statement of the circumstances surrounding the incident," according to the firearms policy.

The report released Wednesday also fails to support assertions made about Compean and Ramos by Office of Inspector General officials to four members of Congress during a private meeting in September.

At that meeting, OIG employees speaking on behalf of Inspector General Richard Skinner told the congressmen that the agents "were out to shoot Mexicans" the day they shot Aldrete-Davila, and that the smuggler posed no threat to them.

Nothing in the new report backs up either of those assertions.

On Monday, Skinner, in testimony before the House Homeland Security Appropriations subcommittee, admitted under oath that the congressmen were given false information about the agents by high-ranking members of his department.

Rep. John Culberson, R-Texas, one of the four congressmen, on Wednesday demanded the resignation of all investigators and Office of Inspector General officials who misled the congressmen.

According to Culberson's office, Elizabeth Redman, assistant inspector general for investigations under Skinner, made the allegations to House members and promised that evidence against the agents would be provided.

Inspector General Congresssional Liaison Tamara Faulkner also was at the September meeting on behalf of Skinner.

Neither Redman nor Faulkner could be reached for comment Wednesday.

Skinner also was questioned Wednesday at a House Homeland Security subcommittee on Management, Oversight and Investigations hearing by Rep. Michael McCaul, R-Texas, who also was at the September meeting. Skinner apologized to McCaul for the OIG employees' unsupported statements about the agents.

McCaul has called for a congressional hearing into the matter.

"While I appreciated Mr. Skinner's accepting his office's mistakes, the fact remains that members of Congress were, at the very least, misled, and at most outright lied to," McCaul said. "Hearings need to be held about this, and more questions need answering."

TJ Bonner, president of the National Border Patrol Council, said the report released by the Inspector General's Office should not be trusted now that Skinner has admitted his office deceived the congressmen.

"This report is a transparent attempt to justify the government's inexcusable prosecution of two innocent law-enforcement officers," Bonner said. "Rather than being an objective recitation of facts, it is interspersed with innuendo, misrepresentations, and outright lies."

Compean and Ramos were convicted in March of shooting Aldrete-Davila in the buttocks, violating his civil rights and attempting to cover up their actions. They were sentenced to 12 and 11 years, respectively, in federal prison.

Aldrete-Davila was found to be driving a van with nearly $1 million of marijuana. He is suing the Border Patrol for $5 million.

[erton1]

It would be helpful if the jurors at some point in the deliberations sent a note to the judge that they were deadlocked. It would even better that the court had to send the jury an instruction that is called a "dynamite charge." Without the above, it will be difficult to prevail on a point of error regarding the '3 JURORS'.IMHO.

[erton1]

It would be helpful if the jurors at some point in the deliberations sent a note to the judge that they were deadlocked. It would even better that the court had to send the jury an instruction that is called a "dynamite charge." Without the above, it will be difficult to prevail on a point of error regarding the '3 JURORS'.IMHO. I would like a stronger affidavit then I have seen. It still worth pursuing.

[Dr. Marten]

Bad News Brewing For The Bush Administration

[calcowgirl]

Wow, did he do anything to PO the judge other than this campaign for the pardon by his supporters. Maybe the judge thinks he has access to funds through his supporters. Have they started a legal defense fund? It may be time to start if one hasn't started yet. I have mentioned this on prior threads.

I have no idea if Cardone is PO'd and I don't know anything about her. I've pulled most all of the docs available on Pacer, and looked pretty closely at the docket. This judge cut no slack for the defense from day one. Defense motion, motion, motion... deny, deny, deny. Prosecution motion to exclude, motion to seal, motion to in limine.... grant, grant, grant. With so many sealed proceedings and docs, it's hard to tell what the heck is going on.

As to legal defense fund, see below:

---

Document 216-1

(snip -- headers, etc.)

MOTION TO PROCEED IN FORMA PAUPERIS

Comes now Ignacio Ramos, Jr., by and through his undersigned attorney, and moves this Court to grant this motion and find Defendant to be indigent and allow him to proceed in forma pauperis in this appeal, and would show the Court the following:

I.
Mr. Ramos' financial status is set out in the presentence report which the Court reviewed. His financial condition has not improved since that time. He is without sufficient funds to pay for the transcript in this case or retain counsel for appeal. The undersigned attorney and co-counsel Mr. Peters were retained for purposes of representation in the district court only. At this point in time, counsel remain in the case on a pro bono basis.
II.
At this time, Mr. Ramos is not requesting court-appointed counsel. He is aware that funds have been raised for the purposes of his legal defense. To date, he has not received any funds for legal fees or expenses. However, he understands that he will receive funds to assist with the retention of appellate counsel. It does not appear that there are sufficient funds raised to pay appellate counsel in full or cover expenses.
III.
Mr. Ramos needs to file his transcript order for the purposes of perfecting his appeal. At this time he has no access to any funds raised on his behalf. However, Mr. Ramos expects to receive financial assistance with attorney's fees. In the event that he does not, he will approach the Court again and request the appointment of counsel.
IV.
Counsel has been informed that the United States Attorney has ordered the entire transcript in this case. However, Mr. Ramos does not even have sufficient funds to pay the copy cost for the transcript of all proceedings.

WHEREFORE, it is respectfully requested that this Court grant this motion, and allow Mr. Ramos to proceed in this appeal in forma pauperis, without payment of costs, including the transcript.

(snip... Signatures, etc. )

[calcowgirl]

Based on the court docket during deliberations, it looks like there was lots of interaction between judge and jury:

Doc #  Filed      Description

140    3/6/2006   Court's Charge/Instructions to Jury
141    3/6/2006   Jury Note (Sealed)
142    3/6/2006   Minutes - Miscellaneous
--     3/6/2006   Minutes - Miscellaneous
143    3/7/2006   Jury Note (Sealed)
--     3/7/2006   Remark (No Doc #)
--     3/7/2006   Remark (No Doc #)
144    3/7/2006   Jury Note (Sealed)
--     3/7/2006   Minutes - Miscellaneous
145    3/7/2006   Jury Note (Sealed)
146    3/7/2006   Minutes - Miscellaneous
147    3/8/2006   Jury Note (Sealed)
148    3/8/2006   Jury Verdict - Compean (Unredacted Jury Verdict sealed)
149    3/8/2006   Jury Verdict - Ramos (Unredacted Jury Verdict sealed)
150    3/8/2006   Minutes - Miscellaneous

[erton1]

It looks like a typical motion of this type. I'm a little surprised that the judge denied it. I have been involved in cases where the judge seems to be be totally against your client and it can be very disheartening. Hopefully the agents and the attorneys don't get too down. If there is a silver lining to the trial judges rulings against the defendants, it is that every ruling, whether on the motions or evidential, can be a ground for reversal on the appeal. Obviously if the judge grants your motion then it not a point for appeal whereas if the judge denies the motion that is one more point of error for the appellate court to consider. I have cases where the trial judge goes so overboard for one side that he creates reversible error for the case. Sometimes one error may not be enough for a reversal of the case but when there are several, the cumulative effect on the appellate judges can be helpful. As I said on another thread, trying to figure out what an appellate court will do is akin to reading tea leaves.

[Mamzelle]

Tiajuana Tony...?

[calcowgirl]

Thanks for the info. And thanks for putting KB on the ping--I meant to do that but obviously forgot.

On another note, Ramos appealed to the 5th circuit the judges order denying his request to remain free on bond pending appeal. Any idea how long that process usually takes?

[erton1]

I disagree with you as to whether there was "lots of interaction between judge and jury." Although the notes are sealed now, they will be available to the 5th circuit and can unsealed by the 5th. From looking at the docket sheet, I feel confident in following: 1) Doc#141- Jury asking to retire for day; 2) Doc #143-Jury asking for read back of testimony; 3) Doc# 145-Jury asking to retire for day; 4) Doc #147- jury notifying court it has a verdict. The only one I have any doubt about is #143 but it looks like to me that after thinking overnight that some jurors wanted their memories refreshed on testimony they considered important by them. Not unusual. In fact, I have cases where the jury has requested read backs several times during deliberations. The number of jury notes to the judge are actually on the low side considering the length of the trial and 3 days of deliberation. I just finished a case last month on a 1 week jury trial where the jury asked for 6 read backs in 1 1/2 days of deliberation.(they couldn't agree on the testimony) It does not appear to me that the jury notified the judge that it was having difficulty reaching a verdict or that it was deadlocked. It also does not appear that the judge gave the jury an additional charge such as a dynamite charge which would be helpful in the error alleged regarding the 3 jurors. BTW jury notes are normally sealed at this point of the appeal.

[erton1]

I hate to hazard a guess. It is unusual for the appellate court reverse the trial court on this type ruling. I think the 5th will want to see the transcript first, or maybe the PSI which should have a factual discussion and recommendations on release pending appeal, such as amount of bond or restrictions on the release like an ankle bracelet. I would guess the time between when the 5th receives the transcript and clerk's record and the time for the appellant's briefs are to be filed with court.

[erton1]

I hate to hazard a guess. It is unusual for the appellate court reverse the trial court on this type ruling. I think the 5th will want to see the transcript first, or maybe the PSI which should have a factual discussion and recommendations on release pending appeal, such as amount of bond or restrictions on the release like an ankle bracelet. I would guess the time between when the 5th receives the transcript and clerk's record and the time for the appellant's briefs are to be filed with the court is when they will issue the decision.

[calcowgirl]

I disagree with you ... I feel confident

Well, I feel confident that when it comes to this subject, you know a whole lot more than me! I will defer to your take, with one question that doesn't make sense to me.

Why would the court SEAL jury requests to retire for the day? Or any purely administrative matter? I would think they would seal the jury instructions long before they would seal anything like that (which they didn't).

[erton1]

The sealing of the notes is normal. I'm not sure of the precedent, but it customary at least here in Texas. The defense attorney is notified of the note and it's contents so they are aware if there is any potential problems. The jury instructions and charge are usually fairly generic and based on a template of instructions based on instructions that have been previously approved of by the appellate courts so that there is not the problem of potential error. Use the template and plug in the counts and allegations. I'm sure that was the situation in this case. I'm not aware of a case where the jury instruction and charge was sealed.