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S. HRG. 110–901 

HEARING TO EXAMINE THE PROSECUTION OF 

IGNACIO RAMOS AND JOSE COMPEAN 

HEARING 

BEFORE THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED TENTH CONGRESS 

FIRST SESSION 

JULY 17, 2007 

Serial No. J–110–47 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

COMMITTEE ON THE JUDICIARY 

PATRICK J. LEAHY, Vermont, Chairman 

EDWARD M. KENNEDY, Massachusetts 

JOSEPH R. BIDEN, JR., Delaware 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

SAM BROWNBACK, Kansas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MICHAEL O’NEILL, Republican Chief Counsel and Staff Director 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma ........................ 5 

Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 1 

WITNESSES 

Aguilar, David V., Chief, Office of Border Patrol, U.S. Customs and Border 

Protection, Department of Homeland Security, Washington, D.C. .................. 31 

Barker, Luis, Former Chief Patrol Agent, El Paso Border Patrol Sector, 

U.S. Customs and Border Protection, Department of Homeland Security, 

Washington, D.C. ................................................................................................. 14 

Bonner, T.J., President, National Border Patrol Council, Campo, California .... 12 

Botsford, David L., Appellate Counsel for Mr. Romos, Austin, Texas ................ 17 

Hunter, Hon. Duncan, a U.S. Representative in Congress from the State 

of California .......................................................................................................... 6 

Rohrabacher, Hon. Dana, a U.S. Representative in Congress from the State 

of California .......................................................................................................... 9 

Sutton, Johnny, United States Attorney, Western District of Texas, San Antonio, Texas .............................................................................................................. 30 

QUESTIONS AND ANSWERS 

Responses of David V. Aguilar to questions submitted by Senator Leahy ......... 56 

Responses of Luis Barker to questions submitted by Senator Leahy ................. 61 

Responses of T.J. Bonner to questions submitted by Senator Leahy .................. 63 

Responses of David L. Botsford to questions submitted by Senators Leahy 

Feinstein ............................................................................................................... 68 

Responses of Johnny Sutton to questions submitted by Senators Leahy and 

Feinstein ............................................................................................................... 78 

SUBMISSIONS FOR THE RECORD 

Aguilar, David V., Chief, Office of Border Patrol, U.S. Customs and Border 

Protection, Department of Homeland Security, Washington, D.C., statement ...................................................................................................................... 81 

Barker, Luis, Former Chief Patrol Agent, El Paso Border Patrol Sector, 

U.S. Customs and Border Protection, Department of Homeland Security, 

Washington, D.C., statement .............................................................................. 90 

Baskett, Robert T., Attorney and Counselor at Law, Dallas, Texas, letter ........ 96 

Bonner, T.J., President, National Border Patrol Council, Campo, California, 

statement .............................................................................................................. 101 

Department of Homeland Security, Washington, D.C.: 

Skinner, Richard L., Inspecter General, April 4, 2007 letter ....................... 113 

Hertling, Richard A., Acting Assistant Attorney General, April 5, 2007 ..... 118 

Department of Justice, Federal Bureau of Prisons, Harley G. Lappin, Director, Washington, D.C., letter and attachments .................................................. 127 

Feinstein, Hon. Dianne, a U.S. Senator from the State of California: 

February 8, 2007, to Michael Chertoff, letter ................................................ 137 

February 8, 2007, to Alberto Gonzales, letter ................................................ 141 

February 8, 2007, to Harley G. Lappin, letter ............................................... 146 

Hunter, Hon. Duncan, a U.S. Representative in Congress from the State 

of California, statement and letters ................................................................... 149 

Page

IV 

Rohrabacher, Hon. Dana, a U.S. Representative in Congress from the State 

of California, statement ....................................................................................... 154 

Sutton, Johnny, United States Attorney, Western District of Texas, San Antonio, Texas, statement and attachment ............................................................... 162 

(1) 

HEARING TO EXAMINE THE PROSECUTION 

OF IGNACIO RAMOS AND JOSE COMPEAN 

TUESDAY, JULY 17, 2007 

U.S. SENATE, 

COMMITTEE ON THE JUDICIARY, 

Washington, D.C. 

The Committee met, Pursuant to notice, at 10 a.m., in room SD– 

226, Dirksen Senate Office Building, Hon. Dianne Feinstein, presiding. 

Present: Senators Feinstein, Kyl, Sessions, Cornyn, and Coburn. 

OPENING STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. 

SENATOR FROM THE STATE OF CALIFORNIA 

Senator FEINSTEIN. This hearing will come to order. I want to 

welcome the witnesses. I want to state the ground rules. 

This is an emotional subject. I would request that everybody 

keep their composure at all times. This is not a hearing to judge 

innocence or guilt. It is a hearing to try to ascertain fact. 

With respect to the jurisdiction of the Senate, there are a few 

issues involved in this case that are within our jurisdiction. One of 

them is a certain law called 18 U.S.C. 924(c). Another is a policy 

memo of the Department of Justice which will become clear, and, 

of course, always limited—excuse me, negotiation for limited immunity with someone who has trafficked drugs. 

On October 19th last year, a Federal district judge in El Paso 

sentenced Border Patrol Agents Ignacio Ramos to 11 years and 1 

day and Jose Alonso Compean to 12 years in Federal prison. The 

length of these sentences has raised concerns about the discretion 

of prosecutors in the charging of offenses and the impact of mandatory minimums those charges carry. 

Today’s hearing is to explore the facts, as I said, and better understand what transpired. Some of the facts that we know are not 

in dispute. A Mexican national named Osvaldo Aldrete Davila 

crossed the border illegally into El Paso, driving a van that contained 743 pounds of marijuana. That chart shows that 750 pounds 

of marijuana assembled by the Border Patrol. 

When Border Patrol agents started following him, Aldrete Davila 

turned back toward Mexico, but crashed his van and then tried to 

fleet on foot. Aldrete Davila was stopped. A scuffle took place. He 

then broke away. He was then fired upon by Agents Compean and 

Ramos before he finally escaped into Mexico. 

No written report of the shooting, as required, was made at the 

time by any of the Border Patrol agents. Later, when an Arizona 

2 

Border Patrol agent learned of the incident, he reported it to his 

supervisor, and an investigation was opened. 

A few weeks later, U.S. investigators went to Mexico and offered 

Aldrete Davila immunity from prosecution for his drug smuggling 

plus medical care in the United States if he would return to testify 

against Agents Ramos and Compean. Agents Ramos and Compean 

were arrested, and prosecutors later amended their indictment 

three times, adding new criminal charges each time for a total of 

12 charges. Significantly, one of the charges added a firearms offense under U.S.C. 924(c), which carried a 10-year mandatory minimum in addition to whatever other penalties the court would decide to use. 

The defendants were found not guilty of the most serious 

charge—assault with intent to commit murder—but convicted of all 

other counts. Agents Ramos and Compean will remain in prison for 

more than a decade. Their only hope is to win appeal or for the 

President to grant them a pardon or commute their sentences. 

Meanwhile, it is reported that Osvaldo Aldrete Davila has filed a 

civil lawsuit in the United States and is seeking $5 million in damages based on the shooting. 

This case has generated strong emotions on both sides. Critics 

claim that this is a prosecution that shows how the Government’s 

priorities are out of whack when it immunized a drug trafficker so 

that he can testify against the border agents from whom he admittedly fled. Supporters claim that rogue agents must be stopped and 

that cutting a deal with a wrongdoer who is a key witness is sometimes necessary in these situations. 

It is true that the bullet left Aldrete Davila permanently injured, 

but it is also true that Aldrete Davila was not an innocent who was 

caught in the wrong place at the wrong time. 

I asked my staff to give me an idea of what the amount of marijuana looked like, and, again, you have it there. I find it hard to believe that someone trusted with $1 million of 

drugs is simply an amateur drug mule. So I hope this hearing will 

help us better understand the facts of the case as well as 18 U.S.C. 

924. 

We should also look at an Attorney General’s policy rule issued 

in 2003 that states that Federal prosecutors must charge and pursue the most serious readily provable offense or offenses. As I said, 

while people have argued both sides, I have not heard many people 

argue that Agents Ramos and Compean deserve the length of these 

sentences. 

I understand that U.S. Attorney Johnny Sutton has suggested 

that he was compelled to file charges that carried the 10-year mandatory minimum in order to comply with this DOJ policy I have 

just read. Specifically, that is the September 2003 rule from then 

Attorney General Ashcroft that requires the charging and pursuit 

of these offenses. 

I think it will be fruitful for us to explore that policy today to 

see if prosecutorial discretion is being unduly restricted by DOJ 

policies in an overly rigid reading of the law. When Congress enacted mandatory minimum sentences, we certainly knew that the 

charges filed would automatically drive the sentence. But Congress 

never said that the charges themselves must automatically be filed. 

3 

The power of the prosecutor has long been heralded as one of the 

most significant powers in our Government. In it lies decisions that 

can have a huge impact, like in this case, where one charge can 

significantly drive up the sentence by 10 years. 

I am very concerned about having in place a policy at the Department that takes discretion away from the prosecutors and 

mandates that all cases must be charged to their fullest without 

any consideration of the facts and circumstances and whether any 

lenience is warranted. We do not want or expect prosecutors to be 

robots. Prosecutorial discretion has been a fundamental part of our 

criminal justice system for centuries, and where there are mandatory minimums, it seems to me that it is even more important for 

prosecutors to retain discretion to determine what charges make 

the most sense in such a case. 

There are also a number of other issues specific to this case 

which are worth exploring. I hope to find out if the prosecutors considered bringing administrative actions against Agents Ramos and 

Compean or asking them to resign instead of filing criminal 

charges against them and trying to put them in prison. If that was 

not considered, why wasn’t it? 

I hope to find out why the Government struck the deal that it 

did with Aldrete Davila. In particular, I hope to find out if the Government considered asking Aldrete Davila to waive his civil claims 

against the United States as part of an immunity deal. If not, why 

not? There are reports that he is now asking the $5 million for his 

injuries. I would like to learn more about the potential exposure 

that our Federal Government faces on that claim. 

We have also learned that, despite his immunity deal, Aldrete 

Davila refused to provide any information on his drug source and 

refused to provide the names of others who talked about putting 

together a hunting party that would retaliate for the shooting. 

I would also like to find out why the Government entered into 

an immunity deal in which Aldrete Davila got to pick and choose 

which information he provided. 

I understand the Government argues that Aldrete Davila refused 

to give information because he was afraid of retaliation. But that 

risk is true in any number of cases in which a person agrees to cooperate. Normally, when a person is given immunity, he is supposed to cooperate fully. 

We have also learned that Mr. Aldrete Davila re-entered the 

United States on at least ten other occasions between March and 

November 2005, and that the documentation provided by the Federal Government allowed him to cross the border legally at any 

time without notifying anyone in the Government ahead of time. 

The Government admits that Aldrete Davila crossed the border 

at least one time without any notice and, therefore, was in the 

United States unsupervised. I would like to hear more about the 

policy that allows for this kind of unsupervised passage into our 

country and why someone who was known to smuggle in drugs 

would be given such flexibility. 

I welcome the witnesses and look forward to their testimony here 

today, and now I would like to recognize the distinguished Ranking 

Member of this hearing, the Senator from Texas, Senator Cornyn. 

4 

STATEMENT OF HON. JOHN CORNYN, A U.S. SENATOR FROM 

THE STATE OF TEXAS 

Senator CORNYN. Thank you, Madam Chairman. I know we have 

Senator Kyl, the Ranking Member of the Subcommittee, here. I 

have an opening statement, but I would be glad to— 

Senator KYL. Go ahead. 

Senator CORNYN. I want to express my gratitude to you, Senator 

Feinstein, and to Chairman Leahy for scheduling this hearing. We 

have been hoping that this day would come for a long time, and 

I am glad it is here. I know you have taken a serious interest in 

this case, as have I, and I look forward to hearing the testimony 

today. 

The U.S. Senate has just completed two rounds of debate on comprehensive immigration reform. I believe the latest effort failed in 

large part because the American people from across the political 

spectrum simply do not have confidence in the Government’s commitment to enforce the law, be it at the border, in the interior, or 

at the workplace. I think the public’s interest in the case of Border 

Patrol Agent Ramos and Border Patrol Agent Compean is symptomatic of that distrust because the public sees two Border Patrol 

agents serving long prison sentences while an admitted drug dealer 

goes free. 

I think this hearing will serve an important purpose because it 

will air for the American people, for the first time publicly in this 

venue, the facts of the case so they can hear them and they can 

make a judgment for themselves about the most controversial aspects of the case. 

We all know that law enforcement officers hold a special place 

in our criminal justice system. Anyone who can arrest someone and 

throw them in jail holds enormous power and must be held to account when they act improperly because, of course, no one is above 

the law. 

At the same time, it is important to remember that a law enforcement officer should be treated no worse than any other citizen 

before the bar of justice. In other words, no special breaks, no special burdens by virtue of their status as a law enforcement officer. 

It is in this light that I have developed some serious concerns 

about the judgment calls made during the prosecution of this case. 

I want to find out if the prosecution offered the drug dealer—find 

out if the prosecution allowed the drug dealer to violate the terms 

of his immigration agreement without consequences. Did the drug 

dealer commit perjury without consequence? Did the Government 

feel the need to prosecute these two agents, as opposed to disciplinary action to a degree that they were willing to provide the drug 

dealer unlimited and unescorted parole visas for various 30-day periods to do who knows what, including possibly transporting additional narcotics? 

Did the Government use the threat of severe criminal charges in 

a vindictive manner? That is, did the Government bring that 

charge only after the agents declined to negotiate a plea agreement? And, ultimately, is this the regular practice at the Department of Justice such that they could have been made—so that they 

would have made the cases against non-police officers? 

5 

These questions are not designed to quibble with the jury’s decision in the case. Jurors provide a critical function in our judicial 

system, and their hard work and verdicts are to be respected until 

and unless such time as they are reversed on appeal. But the jury 

can only weigh evidence that they actually hear and are allowed 

to consider. 

I would note that some jurors have since come forward to state 

that the evidence that they were prevented from hearing would 

have changed that verdict. Rather, my questions are designed to 

examine whether the prosecution of Agents Ramos and Compean 

was handled the same as other defendants or were they treated differently because of their status as law enforcement officers. 

Madam Chair, I thank you again for your perseverance and your 

willingness to convene this hearing, and I look forward to hearing 

the testimony from the witnesses. 

Senator FEINSTEIN. Thank you very much, Senator, and I look 

forward to working with you on this as well. 

Senator Kyl. 

Senator KYL. Madam Chair, I have an opening statement, but respecting the time of my good friends and former House colleagues 

here, what I would like to do is to have you turn to them after any 

other opening statements here. I will give about half of my opening 

statement orally when this panel has concluded and put the rest 

of it in the record. And I apologize in advance. I am, as we all are, 

scheduled about three different ways this morning, and I may have 

to be kind of coming in and out. But I did want to hear the testimony of these two witnesses, who are among the most conscientious and dedicated public servants that I have ever served with, 

and having worked with both of them in the House of Representatives, I could tell a lot of stories about both of them and their dedication to the people of this country. They are both patriots. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator Coburn. 

STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM 

THE STATE OF OKLAHOMA 

Senator COBURN. I will just submit an opening statement for the 

record. 

Senator FEINSTEIN. Thank you very much. 

[The prepared statement of Senator Coburn appears as a submission for the record.] 

Senator FEINSTEIN. And now we will turn to the first panel. I 

will begin with Congressman Hunter, because he was here first, 

Congressman Rohrabacher. 

Duncan Hunter represents California’s 52nd District, consisting 

of eastern and northern San Diego County. He was elected to the 

House of Representatives in 1980. His first assignment was to the 

House Armed Services Committee where he is presently Ranking 

Member. Prior to his current position as Ranking Member, Congressman Hunter served as the Chairman of the full Committee 

from 2003 to 2007. He is a Vietnam veteran, served in the 173rd 

Airborne and 75th Army Rangers. 

I will introduce Congressman Dana Rohrabacher at this time. He 

represents California’s 46th District, stretching along the Pacific 

6 

coastline of Orange County and Los Angeles. Congressman Rohrabacher is currently in his ninth term in the House and is serving 

as Ranking Member of the Oversight and Investigations Subcommittee of the House International Relations Committee. Prior 

to his first election to Congress in 1988, he served as Special Assistant to President Reagan. For 7 years, he was one of the President’s senior speech writers. I should mention he was an editorial 

writer for the Orange County Register as well. 

So we welcome you both to the other side, as they say, and, Congressman Hunter, would 5 to 7 minutes suffice? Fine. Please proceed. 

STATEMENT OF HON. DUNCAN HUNTER, A REPRESENTATIVE 

IN CONGRESS FROM THE STATE OF CALIFORNIA 

Representative HUNTER. Chairman Feinstein and Senator Cornyn, Senator Kyl, and Senator Coburn, thanks for letting us 

come— 

Senator FEINSTEIN. Could you press your microphone and see 

that it is on and pull it close? 

Representative HUNTER. OK. Thanks for letting Dana and I come 

over and talk to you about this case. I think you have framed the 

case extremely well, Senator Feinstein, the circumstances, and let 

me just start out by saying I think that the prosecution and the 

resultant 11 and 12 years, respectively, for Agents Compean and 

Ramos comprise to me the most severe injustice I have ever seen 

with respect to the treatment of U.S. Border Patrol agents or, I 

might add, the treatment of any uniformed officers. And I say that 

as a guy who has been on the Armed Services Committee now for 

26 years, I have seen lots of prosecutions under the UCMJ. But the 

totality of the circumstances, that is, the wounding of a drug dealer 

who has just brought in 750 pounds of narcotics, and the resultant 

11- and 12-year sentences in the Federal penitentiary, which is 

about 21⁄2 years more than the average convicted murderer does behind bars, essentially being given murder sentences for this action, 

which turns on a split-second judgment—and if you take away all 

of the underbrush, it turns on a split-second judgment as to whether or not the drug dealer, when, according to the agents’ testimony, 

he whirled and had what looked to them like a gun in his hand, 

and he claimed, having been given immunity and being brought 

back from Mexico to testify, he claimed he did not have a gun in 

his hand. But that split-second judgment basically means the difference between being given a medal for accomplishment or for 

valor or being given 11 and 12 years in the penitentiary. 

And so the first thing I would say is that that is not a burden 

that we can put on Border Patrol agents, or we are going to get 

to the point where no one will volunteer for this force. 

Now, let me just offer a couple of things, and I apologize because 

I have to leave early, but let me just offer a couple of thoughts. 

First, if you believe in full the testimony of the drug dealer, if 

you accept his statement as fact throughout, the 11- and 12-year 

sentences are extremely unjust. Extremely unjust. You have a 

wounded drug dealer who, according to the police documents that 

I have seen, or the prosecutorial documents that I have seen, did, 

in fact, enter the United States subsequently with another load of 

7 

narcotics for which he was not prosecuted. And that brings up two 

facts that I think you should make a point of inquiry with the Government. 

First, the Government always has an obligation when a conviction turns on the credibility of a witness, and that credibility of 

that witness is subsequently impaired by something that he does— 

and, in fact, if it is a fact that this drug dealer brought in a subsequent load of narcotics, that certainly is a factor that should have 

been brought to the attention of the court. And I would recommend 

that you ask the Government why they didn’t bring this subsequent load of narcotics—after the drug dealer had been given immunity, why that was not brought to the subsequent attention of 

the court, because it is the trustworthiness, the credibility of the 

witness, the drug dealer, which was utilized to convict Compean 

and Ramos. 

The second factor that I would urge that you ask the Government about is this: I have looked at the statement, this so-called 

rebuttal statement by the U.S. Attorney. Eight times in that rebuttal statement, it states conclusively that the drug dealer was unarmed. I have read the transcript of the case. There is nothing in 

the transcript that indicates that there is any proof that he was 

unarmed. He was never frisked. He was never searched. And the 

other Border Patrol agents who were watching this from afar, the 

one who testified was watching from hundreds of yards away. So 

there is absolutely no proof that he did not have a gun except his 

own statement. And if you look at the motivation that he might 

have, what greater motivation than being given immunity, being 

set up for a multi-million-dollar civil case against the U.S. Government, and being the key witness in a prosecution that sends the 

hated Border Patrol agents to prison. 

Now, I wanted to tell you, after they went to prison—that was, 

I believe, the 17th of January. The day they went in, I called up 

Harvey Lappins, who was the head of the Bureau of Prisons, and 

he had just gone home, but I talked to his administrative assistant, 

and I said, ‘‘These guys are going to get beaten up in prison.’’ The 

prison has a large population of drug dealers, they hate the Border 

Patrol, and they are going to be beaten up unless you segregate 

them.’’ The assistant assured me that he would convey that to the 

Director, Mr. Lappins, very quickly, that night. 

The next day I got a call back from Mr. Lappins’ staff, and they 

said, ‘‘Good news. The Border Patrol agents have been segregated 

from the general population, and they will be safe.’’ And they sent 

me subsequently a letter—and I would like to offer this for the 

record—that says they are under a special program in which their 

safety will be assured. And I would like to offer that to the record, 

Senator. 

Senator FEINSTEIN. That will be included in the record. Thank 

you. 

[The letter appears as a submission for the record.] 

Representative HUNTER. What Mr. Lappins or his assistant did 

not tell me was that a few days later, Mr. Ramos would be put 

back in the general population, and he was promptly beaten up. 

And it was not guards that stopped the beating. It was another inmate. 

8 

So these two agents have now done 6 months in the Federal penitentiary. I have never seen a case so compelling for a pardon or 

a commutation. 

Now, after they were put in and the President did not pardon 

them, I introduced a bill. I had our lawyers come in, and I asked 

them if Congress could issue a pardon, if we could do a bill that 

would effect a pardon. They researched the cases, and they said 

there are some cases that indicate actually that you can and some 

that indicate you cannot. And since they were already incarcerated, 

I said let us go ahead and draft one. We have drafted one. We introduced it. We have at this point precisely 100 cosponsors. 

But I think this is a case which calls out for a pardon or for a 

commutation, but especially, Chairman Feinstein, I would make 

sure that you get a response from the Government as to why, after 

the drug dealer was focused on in an investigation before bringing 

in a second load of narcotics, that fact, which obviously goes to his 

credibility and his trustworthiness in this case, in which his testimony was the key driver of these two convictions, why that fact 

was not communicated to the court. 

Now, the Government may say that that did not result in a conviction. In fact, they did not indict as a result of that, but I have 

read the police report with respect to that. But that certainly does 

trigger an obligation, a duty on their part to report an activity 

which goes straight to the credibility of the key witness to the Government. And I do not think they did that. 

And the second thing that, of course, I think you should question 

them on strongly is this: Again, their statement has seven references to—states conclusively seven times that the drug dealer 

was unarmed. And, of course, that is a key element in this case. 

There is no evidence that he was unarmed. He was not frisked. He 

was not searched. Nobody was close to him except the two agents, 

Ramos and Compean. 

The last thing I would say—and I appreciate you letting me go 

early, Chairman Feinstein. I appreciate your attention to this case, 

incidentally. This is a very critical case. You know, we built that 

fence in San Diego, and we had tons of cases just like this—not exactly like this, but beatings, times when Border Patrol were rocked, 

people came across in vehicles. And the separation that we 

achieved by having a double fence with a road in between eliminated those. And we also had an average of eight to ten murders 

a year right there on the San Diego border. Most of the time the 

people being murdered by the gangs that roamed that border were 

the people coming in illegally. When we put the double fence up, 

the murders went from an average of eight to ten a year to zero. 

And incidents like this on our part of the border went to zero. And 

if you look at the border fence that we passed into law, that is 

mandated to be constructed in Texas, it appeared to me that the 

fence includes this area where you are now having these drivethroughs like the one which is the subject of the discussion this 

morning. It is now the law that we build all 854 miles of border 

fence. I think we need to get on with it. 

Thank you for allowing me to testify, Chairman Feinstein, and 

thank you for your great interest in this case. And, Mr. Cornyn, I 

appreciate the hospitality. 

9 

I apologize for having to leave early, but I wanted to let you 

know how strongly I feel. 

[The prepared statement of Representative Hunter appears as a 

submission for the record.] 

Chairman Feinstein. Well, thank you very much for the testimony, for being here, and I will go to Congressman Rohrabacher. 

STATEMENT OF HON. DANA ROHRABACHER, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA 

Representative ROHRABACHER. Well, first and foremost, let me 

thank you, Senator Feinstein. You have my respect and my appreciation for holding this hearing. 

As we meet today, it should not escape our attention that the two 

veteran Border Patrol agents that we are speaking about are in 

their 180th day of solitary confinement. It just tears at your soul 

to think that these two men, who had 5 years and 10 years of service to the Border Patrol, respectively, these men who put their lives 

at risk every day trying to do one of America’s toughest law enforcement jobs, these men are now in solitary confinement for an 

activity that stems from their interdiction of a drug dealer. Both 

of these men are military veterans; both have unblemished work 

records. Officer Ramos, in fact, was nominated to be Border Patrol 

Agent of the Year. 

Then on February 17, 2005, Officers Ramos and Compean interdicted a drug smuggler who had just penetrated our border with 

743 pounds of narcotics. A high-speed chase ensued followed by a 

physical altercation. Agent Compean ended up on the ground. The 

drug dealer ran toward the border, and as he did, he was turning 

and, according to the officers, had what appeared to be a shiny object in his hand. And there is no reason to believe that that object 

was not a gun. Yet it appears that the word of the drug dealer was 

taken over the possibility of the fear of these two law enforcement 

officers that they were being put in great jeopardy. 

Shots were fired and in the aftermath, certainly—and we all 

admit this—the prescribed Border Patrol procedure was not followed. Ramos and Compean did not do their paperwork. Ramos 

and Compean and their supervisors, not believing the drug dealer 

had been hit, decided to forego the hours and hours of laborious paperwork that is required after shooting incidents. Now, that was a 

wrong decision on their part. But it is understandable as well. 

They did not think anybody had been hit. They just did not want 

to spend 6 or 7 hours of their time and the FBI’s time and everybody else’s time to go through these procedures. That procedural 

violation, that decision, deserved a reprimand. That decision that 

deserved a reprimand was turned into a felony by the U.S. Attorney’s Office. 

Prosecutors in this country are given great discretion, and who 

will be granted immunity and who will be prosecuted is their call. 

In this case the U.S. Attorney’s Office decided to give immunity to 

a professional drug smuggler, accept his word that, even though he 

was in possession of a million dollars worth of drugs, that he was 

unarmed and then throw the book at the Border Patrol agents, 

turning into a felony what should have been addressed, at most, by 

a 5-day suspension for the violation of procedures. 

10 

It is totally disingenuous for anyone involved in prosecuting 

Ramos and Compean to suggest that they had no choice. The choice 

was prosecuting the drug smuggler for his heinous crimes or prosecuting the Border Patrol agents. Going after the agents required 

turning reality on its head, trying to turn our protectors into bad 

guys, exaggerating the importance of not spending the hours muddling through a shooting report when they thought no one had 

been hit. 

The prosecutors decided to go after the good guys and gave the 

bad guy immunity. The prosecutors then, let us note, began to 

vilify the Border Patrol agents in order to justify their decision. Mr. 

Sutton has, for example, repeatedly referred to the agents as ‘‘corrupt’’ in broadcast interviews. When challenged about this, he simply defined ‘‘corrupt’’ in a way that no one else uses the term. Now, 

we have heard that before from this administration, and it is unacceptable, especially when you consider the impact that that had on 

the lives of these people, these two Border Patrol agents, who have 

unblemished records on their job. But it was Mr. Sutton who stood 

by as Congress was lied to with the claim that these two fine 

Americans of Mexican descent supposedly bragged that they wanted to go out and ‘‘shoot Mexicans’’ that day. This later was proven 

to be a bald-faced lie. Now, who is being prosecuted for lying to 

Congress? That was said directly to Members of Congress who were 

investigating this incident. This lie was in print on numerous occasions. Why did Mr. Sutton let such a vicious lie simply stand? Why 

didn’t he correct the record? 

Then one must consider that Mr. Sutton has continuously described the incident as Ramos and Compean shooting an unarmed 

man in the back and lying about it. Was Mr. Davila an unarmed 

man? No. He was not just a man. He was a criminal member of 

a drug cartel. And he was not shot in the back. He was shot in the 

buttocks and the entry wound of the bullet was consistent with the 

agents’ testimony, as well as that of the army surgeons who removed that bullet, that he was turned—he was not shot in the 

back. He was turned with his hand extended as if something was 

in his hand. I wonder what that was. The agents had exactly one 

split second to decide if their lives were in danger. 

And, finally, let us not forget the worst lie of all, the one that 

was told to the jury, when the U.S. Attorney’s Office permitted the 

prosecutor to describe the drug smuggler as a one-time offender 

trying to earn enough money to pay for medicine for his sick mother. Mr. Sutton may use pejorative words to describe the drug smuggler now, but it was his prosecutors who insisted to the judge that 

the jury not be permitted to hear the information directly tying the 

drug dealer to a second cross-border drug shipment. Now, someone 

is getting railroaded here. The jury was not able to hear that this 

drug smuggler had been fingered in a second drug shipment, and 

it was the U.S. Attorney’s Office that insisted to the judge that the 

jury not be permitted to hear that evidence. 

This Committee may want to ask Mr. Sutton about the date of 

free border crossing pass that was provided by his office, provided 

to the drug smuggler, and we might want to determine if the date 

on that pass coincides with the date of the second drug shipment, 

because those of us on the House side who have been trying to get 

11 

to the bottom of this cannot get an answer out of Mr. Sutton about 

this. 

Mr. Sutton’s office has stonewalled our investigation in the 

House, and that is why, Senator Feinstein, we are so grateful to 

you for stepping forward today. Mr. Sutton’s office has even insisted that we obtain a privacy waiver signed by the drug smuggler 

before they can release the information as to the dates that were 

on the drug smuggler’s pass. I do not know what contempt of Congress is, but that sounds like it to me. 

This Committee may want to ask Mr. Sutton if all the facts remained the same, but instead Mr. Davila turned out to be a terrorist—let us say instead of all of these narcotics that Mr. Davila 

was instead smuggling across the border a van that was filled not 

with marijuana, but let us say Mr. Davila had a van that was filled 

with a dirty bomb headed for an American city. Ramos and 

Compean, would they be sitting in Federal prison right now for violating a terrorist’s civil rights, or would they be heralded as the 

true heroes who they are? 

In summary, the Ramos and Compean case is the worst miscarriage of justice that I have witnessed in the 30 years I have 

been in Washington. The decision to give immunity to the drug 

dealer and throw the book at the Border Patrol agents was a prosecutorial travesty. The whole episode stinks to high heaven. Two 

of America’s brave Border Patrol defenders have had their lives 

and the lives of their families—and their families are here with us 

today—destroyed by what I see as an elitist, arrogant, and overreaching prosecutor who believes that protecting the civil rights of 

illegal alien criminals is worth destroying the lives of our law enforcement officers for minor procedural violations. 

With that, I appreciate at long last the opportunity to try to do 

something to help these brave law enforcement officers. As I say, 

as we speak, Madam Chairman, they are in their 180th day of solitary confinement because this administration that will give Scooter 

Libby a commutation of his punishment, this administration let 

Scooter Libby go, but these two defenders of our border have to go 

in solitary confinement. I pleaded with this administration at least 

go to the judge and ask him to let these fellows go until their appeal is heard, because their lives are in danger. That request was 

turned down and, I might say, very abruptly and arrogantly. And 

as we now see, Scooter Libby can be set free. Two Border Patrol 

agents who languish in solitary confinement, whose lives are in 

danger, their lives do not count a bit with this administration. And 

I appreciate that you, Senator Feinstein, care about these people 

as individuals and are holding this hearing because of that. 

Thank you very much. 

[The prepared statement of Representative Rohrabacher appears 

as a submission for the record.] 

Senator FEINSTEIN. Thank you very much, Congressman Rohrabacher. 

I have no questions. Do other members of the panel have questions of the Congressman? If not, then, we thank you for coming 

over to this side. We excuse you, and we will proceed with the next 

panel. 

12 

Senator FEINSTEIN. I would ask T.J. Bonner to come forward, 

and I will introduce the next panel in aggregate, and then we will 

go right down the line, if that is agreeable. 

Mr. Bonner is currently the President of the National Border Patrol Council. This is a union within the American Federation of 

Government Employees which represents approximately 11,000 

non-supervisory Border Patrol employees. Mr. Bonner has held this 

position since 1989 and has been a Border Patrol agent in the San 

Diego, California, area since 1978. 

Deputy Chief Barker retired from the U.S. Border Patrol in July 

2006 after more than 28 years of service. At the time of his retirement, he was the national Deputy Chief of the Border Patrol in 

Washington, D.C., where he had served since May of 2005. Prior 

to that, he served in a number of key leadership positions in the 

Border Patrol, including the position of Chief Border Patrol Agent 

in the Laredo and El Paso, Texas, sectors. Before joining the Border Patrol in 1978, he was a police officer and acting detective for 

51⁄2 years with the Jersey City Police Department Narcotics Squad. 

David Botsford is currently serving as appellate counsel for Mr. 

Ramos. We asked the defense attorneys at the trial if they wished 

to come and testify on behalf of their clients. We learned that they 

are prohibited from doing so by the judge. However, Mr. Botsford 

has volunteered to testify. He is a member of the State Bar of 

Texas where he received Outstanding Criminal Defense Lawyer of 

the Year in 1993, and he has previously served as the President 

of the Texas Criminal Defense Lawyers Association. He has been 

listed as a ‘‘SuperLawyer’’ and as one of the five ‘‘Go-To’’ Lawyers 

in Texas Criminal Defense Practice by the publication Texas Lawyer. He is also listed in ‘‘The Best Lawyers in America.’’ 

David Aguilar is not present. Is Mr. Aguilar going to testify? Oh, 

he is on the third panel, I guess. All right. 

So we will proceed with these witnesses at this time. Mr. Bonner, 

you are first up. Welcome. 

STATEMENT OF T.J. BONNER, PRESIDENT, NATIONAL BORDER 

PATROL COUNCIL, CAMPO, CALIFORNIA 

Mr. BONNER. Thank you. Chairwoman Feinstein, Ranking Member Cornyn, other distinguished members of the Committee. The 

National Border Patrol Council appreciates very much the holding 

of this hearing to get to the bottom of this matter. This is something that has weighed heavily on the minds of not just law enforcement officers across America but ordinary citizens who look at 

the facts of this case and wonder how two Border Patrol agents 

who were simply doing their job and defending themselves against 

an armed drug smuggler ended up being prosecuted, convicted, and 

sentenced to 11 and 12 years in prison. This is a travesty of the 

highest order. 

The Government claims that it prosecuted these two agents because they shot an unarmed man in the back, covered up, destroyed evidence, and filed false reports. All of that hinges on 

whether that person was, in fact, unarmed. In order to reach the 

conclusion that Osvaldo Aldrete Davila was unarmed, you have to 

discard the physical evidence—the bullet that entered through his 

body at an angle; you have to ignore the laws of physics; you have 

13 

to ignore the sworn testimony of two law enforcement officers, and 

place absolute, complete faith in the word of a career criminal. 

Make no mistake about it. Osvaldo Aldrete Davila was not a simple mule, as the prosecution tried to claim, who was looking to earn 

$1,000 so that he could care for his sick mother. The cartels are 

not that stupid. They do not throw the keys to a van with $1 million worth of marijuana to someone whom they do not know and 

say, ‘‘Just drive around, kid, and you will figure it out. Someone 

will pick you up and escort you into the safe house, and then we 

will give you $1,000.’’ They are not that foolish. And anyone in our 

Government and our system of justice who honestly believes that, 

you have to really question their intelligence. And I do not question 

the intelligence of the folks in that office. They are far smarter 

than that. 

He was armed. In my 29 years of experience as a law enforcement officer, having captured loads of narcotics and being familiar 

with many other loads of narcotics that have been captured, when 

you are dealing with that quantity, they are inevitably, almost invariably armed—perhaps not to shoot it out with law enforcement 

officers, but certainly to protect against being ripped off by the 

competition. 

This is a very troubling case, and you will hear the other prong 

of the testimony is that they tried to cover this up. There was no 

cover-up here. They were required by policy to orally report the fact 

that they had discharged their firearms. They did not do that, for 

whatever reason, but that is not a crime. That is an administrative 

violation that merits no more than a 5-day suspension. 

Another part of their case rests on the fact that Agent Compean 

picked up his shell casings. One of the things that no one ever did 

was to test him afterwards to see whether he was suffering from 

post-traumatic stress disorder. Everyone who testified at trial said 

that Joe Compean was walking around in a fog, in a haze. He had 

just been assaulted. He has just seen his life flash before his very 

eyes because someone pointed a weapon at him. And he was clearly 

suffering from what used to be called ‘‘shellshock,’’ is now called 

‘‘post-traumatic stress disorder.’’ No one tested him for that. He reverted to his training. At the firearms range, we are taught, after 

you fire your weapon, you pick up your shell casings and you throw 

them into the nearest receptacle. He looked around, there was no 

near receptacle, so he threw them into the drainage ditch. If he 

really intended to destroy this evidence, he would have taken it as 

far away as possible and completely destroyed it, taken it to a 

smelter, had it melted down. There was no intent there to destroy 

or to cover up, and there was no filing of a false report. The Border 

Patrol firearms policy specifically precludes agents from mentioning the fact of a shooting in a written report. That is done by 

the investigator. 

The wrongdoing here was bringing 743 pounds of marijuana into 

the country. That is a felony. And the person who did that was 

granted immunity by our Federal Government, and when he was 

subsequently implicated in another 753 pounds of marijuana, not 

only was that fact ignored, but it was suppressed. The Government 

argued that the court should not let the jury hear that evidence, 

14 

and the jury did not hear that evidence, and it would have had a 

bearing on the outcome. 

In conclusion, the ramifications of this go far beyond those two 

agents, far beyond just the Border Patrol where morale has been 

decimated and now we are suffering the effects of that. We cannot 

hire the number of agents that the President wants, that the Congress wants. We are falling so far behind. One of our recruiters relayed to me that someone came up to him after the standard recruiting pitch and he said, ‘‘You would have to be crazy to join this 

outfit. You eat your own.’’ 

That is a sad commentary that the public has so little faith in 

our system of justice, and millions of Americans have petitioned 

this President for executive clemency, and he ignores that. 

The effects of this are so far-reaching. I would implore you to use 

your power to order an investigation, appoint an independent counsel to look into this, go in, subpoena, get to the heart of this matter, because the fabric of our system of justice depends on resolving 

this matter expeditiously. 

Thank you very much. 

[The prepared statement of Mr. Bonner appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you, Mr. Bonner. 

Former Deputy Chief Barker. 

STATEMENT OF LUIS BARKER, FORMER CHIEF PATROL 

AGENT, EL PASO BORDER PATROL SECTOR, U.S. CUSTOMS 

AND BORDER PROTECTION, U.S. DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Mr. BARKER. Good morning, Chairman Feinstein, Ranking Member Cornyn, and distinguished members of this Committee. Thank 

you for inviting me to this important hearing. You went through 

my biography, but one thing I would like to add is I was also a 

military policeman stationed with the U.S. Army stationed at Fort 

Bragg, North Carolina. Also, I am currently providing leadership 

and integrity training and anti-corruption training to senior managers or mid-level managers at CBP under contract, and also I 

train first-line supervisors at the Leadership Development Center, 

again, under contract with CBP. So I would like the record to reflect that. 

Senator FEINSTEIN. Thank you. 

Mr. BARKER. As a senior leader in the Border Patrol, I was extremely proud of the men and women who serve to protect this Nation and who I had the honor to lead. Today, even in retirement, 

I am still proud of the great work that these men and women do 

in defense of the homeland. Day after day they do this difficult and 

dangerous job of securing our Nation’s borders under extreme conditions, and do it with a personal pride and dedication that is to 

be applauded. They literally put their lives on the line every day, 

yet do great things to make us proud. They are genuine heroes and 

certainly deserving of your support and that of the American people. 

To prepare them for the dangers and rigors of the job, each agent 

undergoes extensive training, to include firearms training and the 

use of force. This training instills professionalism and makes every 

15 

agent understand that he or she will be held to a higher standard 

and that they must obey the laws of the land and of the community 

in which they live. Every agent that entered on duty when I was 

Chief Patrol Agent in the El Paso Sector had this reinforced to 

them by me before going to the Border Patrol Academy and again 

upon their return from the academy and before reporting to field 

duties. They are told about the trust that is placed in them to enforce the laws within the limits authorized—a trust that, if violated, has enduring consequences. The motto of the Border Patrol 

is ‘‘Honor First,’’ an ideal that is instilled in every agent from the 

day they walk through the door of any sector in the Border Patrol, 

and woven into the training and indoctrination at the Border Patrol Academy. It is something that has sustained the Border Patrol. 

During my tenure as Chief Patrol Agent of the El Paso Sector, 

there have been numerous incidents where officers have discharged 

their weapons, but most of them accidental. Of these weapons discharges, six were incidents where agents used deadly force to defend themselves from a threat against them resulting in two fatalities. The Firearms Policy mandates the reporting of every shooting 

incident, accidental or otherwise, for proper investigation and disposition. For this reason, the scene must be secured and proper notification must be made to bring the investigative resources to bear. 

Every agent understands the requirement to notify supervisors of 

any discharge of a service firearm and the implications of not doing 

so. 

On or about March 4, 2005, we received a memorandum from an 

agent in the Tucson Sector informing us of a shooting incident connected with a narcotic seizure that occurred in the El Paso Sector 

on February 17, 2005, approximately 2 weeks earlier. At that point 

in time, we had no recent report of shootings, so the information 

in the memorandum was surprising to us. After checking the 

records and making some inquiries, we had reason to believe that 

the allegations in the memorandum had some merit. We immediately made the proper notifications and made an initial report to 

the Office of Inspector General because of the seriousness of the allegations. As we all know, the events of February 17, 2005, resulted in the conviction and sentencing of former Agents Ignacio 

Ramos and Jose Compean. 

Osvaldo Aldrete Davila, ‘‘the victim’’—and I use it in quotes because he is not deserving of the title because of his trade, a trade 

that supplies nothing but misery to those who are trapped in the 

clutches of his product; he deserves no sympathy and I give him 

none. Only the circumstances make this characterization possible. 

I do, however, feel for Agents Compean and Ramos and their families for what they have endured and will endure as a result of the 

terrible choices they made on February 17, 2005. Though there is 

an emotional connection in this case, those of us in leadership and 

those having the responsibility to apply the rule of law cannot abdicate our responsibilities. Agent misconduct, even criminal misconduct, does occur despite our best efforts in selection and training, but we do everything to deter it and act decisively when it occurs. It saddens me because had the two agents behaved with the 

integrity and honor that we instill, following procedure, disclosing 

the shooting, not tampering with the evidence and encouraging othVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00019 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
16 

ers to do so, the results might have been very different. In fact, in 

my experience, almost every agent-involved shooting is resolved in 

the favor of the agent without criminal charges. So to suggest that 

the Border Patrol ‘‘went after’’ these agents for administrative violations is baseless, and I believe the facts of this case support this 

premise. 

Agents Compean and Ramos used deadly force when it should 

not have been applied; they shot a person in direct violation of the 

policy and contrary to the training that they have received in this 

regard. From the statistical information I gave earlier, it is obvious 

that this was not the first time agents used deadly force in the El 

Paso Sector. The differences between this case and the others are 

glaring: Agents involved in other shooting cases reported them, cooperated with the investigation allowing it to run its course, and 

an investigation which generally supported the agents’ decision to 

use deadly force. These agents destroyed evidence, filed an incomplete report on the incident in an effort to keep this shooting and 

the circumstances surrounding it from the leadership. Additionally, 

their actions prevented the proper investigation of this case—an investigation which I said generally supports the actions of the 

agents. 

On April 28, 2005, when Agent Compean came before me to 

make his oral reply to the proposal to indefinitely suspend him, I 

asked him why he did not report the shooting. He said, and I 

quote, ‘‘I didn’t.’’ He continued to say that he knew that it was 

wrong for them not to report and continued to say that if they 

thought that the suspect had been hit, he would have. He also said 

that he knew that they would get in trouble—a thought that was 

confusing to me since I have established that when an action is appropriate, the investigation invariably proves this absolving the 

agent of any liability. 

This has been a tragedy with emotional undercurrent, but there 

should be no mistake about it: It begins and ends with the actions 

of Agents Compean and Ramos; not the prosecutors, not the judge 

or the jury, as has been suggested. The ‘‘distorted facts’’ have compounded this already tragic situation by tarnishing the reputation 

of other people who did the right thing. The U.S. Attorney, through 

his office in El Paso, has been a strong supporter of the agents in 

the El Paso Sector, making it clear, by its prosecutions, that assaults on agents will not be tolerated. They have also been on the 

front lines in those cases where agents have used deadly force 

under circumstances that warranted it or taken actions that have 

resulted in injury or death, and they have worked vigorously in 

supporting the agent. Conversely, they are also intolerant of official 

criminal misconduct or corruption as they should. 

Finally, it is suggested that this case will make agents hesitate 

in situations where deadly force is warranted. The facts do not support this contention since in the last 2 months— 

Senator FEINSTEIN. Would you conclude, please, Deputy Chief 

Barker. You are 2 minutes 36 seconds over time. 

Mr. BARKER. I have just three more lines. 

Senator FEINSTEIN. Thank you. 

Mr. BARKER. The facts do not support this contention since in the 

last 2 months agents have discharged their weapons against assailVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
17 

ants in self-defense on three occasions in El Paso, resulting in injury to one. Agents have always defended themselves, and I have 

no doubt that they will continue to do so when there is a threat. 

I thank you for this opportunity, and I look forward to answering 

any questions that you may have. 

[The prepared statement of Mr. Barker appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you very much. 

Mr. Botsford. 

STATEMENT OF DAVID L. BOTSFORD, APPELLATE COUNSEL 

FOR MR. RAMOS, AUSTIN, TEXAS 

Mr. BOTSFORD. Good morning, Chairwoman Feinstein— 

Senator FEINSTEIN. Would you relocate the mike and see that it 

is on? 

Mr. BOTSFORD. That should be on now, Senator. 

Senator FEINSTEIN. It is on now. 

Mr. BOTSFORD. Thank you very much. I appreciate the opportunity to be here very much. 

Senator FEINSTEIN. If you could move the mike over directly in 

front of you. 

Mr. BOTSFORD. Is that a little bit better? 

Senator FEINSTEIN. Thank you. Right. 

Mr. BOTSFORD. All right. First, I appreciate the opportunity to be 

here on behalf of Ignacio Ramos. I represent Ignacio Ramos on appeal only. I was not involved in the trial. However, I have read all 

33 volumes of the appellate record, read every word, seen every exhibit. I am here to try to answer questions, and I would like to do 

so after making some brief comments. 

As Cinderella’s step-sisters taught us, no good can come from 

stuffing a foot into an ill-fitting shoe, and that is what this case 

is really about from my perspective. I have been practicing criminal 

defense law for 30 years in Texas. I have seen no greater tragedy 

than this case. 

As Representative Rohrabacher said earlier, the truth is if the 

driver of this van had been Osama bin Laden or some terrorist, 

would we even be here? Would there have even been a prosecution 

of Ramos and Compean? I submit no, of course not. The point is 

however, we are not in that position. We are in a position where 

two agents apprehended a drug dealer, and I want to address the 

fact that is reflected in Mr. Sutton’s written testimony that Davila 

could not have been prosecuted. This is at page 6 of his written 

statement. I take serious issue with that. Obviously, anybody that 

practices criminal law knows that a grand jury will indict a ham 

sandwich. We have all heard that phrase. And, in fact, Davila could 

have been prosecuted for this first load that he fled across the 

river. Why Mr. Sutton says that he cannot be prosecuted bewilders 

me because I believe any first-year prosecutor could get an indictment and successfully prosecute him. There is independent testimony that he entered the United States illegally, got into a van 

laden with 750 pounds of marijuana, drove into Fabens, Texas, in 

order to receive directions to the stash house, was attempted to be 

stopped by two and then subsequently three Border Patrol agents, 

of which one of them was Mr. Ramos. Davila did not stop. He fled, 

18 

high-speed chase, and under the Supreme Court opinion of Scott v. 

Harris, decided in April of 2007, we know that the agents were authorized to use deadly force to stop Davila during that high-speed 

chase that endangered other people. 

They did not do that. They followed him to the border where 

Davila got out of his van and encountered Agent Compean, who 

was bearing a shotgun. Davila did not stop for Compean even 

though he was bearing a shotgun. There was an altercation. Ramos 

gave chase down into an 11-foot ditch. While he was in that ditch 

trying to get to where the alien Davila and Compean were in a 

struggle, there was an exchange of shots or what Ramos thought 

was an exchange of shots. 

Agent Ramos comes out of that ditch and ultimately fires one 

shot—and you have heard the testimony before—as Davila was 

turned in a turning direction back toward him. 

You know, the most inept prosecutor in the world could have 

prosecuted this case, so I take difference with what Mr. Sutton has 

put in his written statement about not being able to prosecute him. 

The immunity situation is quite distressing, and I would offer for 

the record a copy of the March 16, 2005, letter of limited use immunity, Senator Feinstein, that was proffered to Davila, that was 

signed by him over the signature of J. Brandy Gardes, Assistant 

U.A. Attorney. 

I would like to point out that—and I would ask that the record 

receive that. 

Senator FEINSTEIN. Thank you. That will be the order. 

Mr. BOTSFORD. Thank you very much, Senator. 

I take great issue with Mr. Sutton’s statement on page 6 of his 

testimony that the court ruled that the second load of marijuana 

that we have heard allusions to, the October load, as Mr. Sutton 

refers to it, was not relevant to the issues at the trial, and that ties 

into this immunity agreement because, in fact, this immunity 

agreement was proffered to Davila before he was ever interviewed 

in the United States. This was proffered to him after one telephone 

conversation between an agent, Chris Sanchez, and Davila on a cell 

phone. 

Now, the immunity agreement is what is called ‘‘use immunity,’’ 

co-extensive with United States Code Section 6001, et seq. That 

means that once Davila signed this agreement, he had an obligation to truthfully testify and cooperate and provide evidence. Nothing he said could be used against him. 

Unfortunately, Mr. Sutton’s trial prosecutors represented to the 

district court that this immunity agreement was what would be 

transactional immunity for the day of February 17, 2005, only; and, 

therefore, the district court ruled that because Mr. Davila could 

take the Fifth Amendment as to the second load, the defense attorneys would not be entitled to cross-examine him on it. It was not 

that it was not relevant. It was based on a misrepresentation by 

trial counsel to the court because once you have use immunity, as 

the Supreme Court of the United States determined back in 1972 

in Kastigar, once you have use immunity, you have no Fifth 

Amendment right left. You have to testify. 

Additionally, the trial testimony reflects that Davila, the alien, 

the ‘‘victim,’’ did not comply with this agreement. The testimony is 

19 

clear in the record that he refused to name where he received medical treatment in Mexico, the names of the people that picked him 

up on the other side of the river once he crossed back to the Mexico 

side, the names of his confederates, the names of individuals who 

were threatening to seek retribution against Border Patrol agents 

in the United States after this came out. For what it is worth, that 

immunity agreement was broached by Davila. No question about it. 

The record is clear. 

I will also state that approximately 2 months ago, in the El Paso 

Times, Davila was interviewed about the sentence that was imposed upon Ramos and Compean, and even he said that it was too 

harsh. Even he said it was too harsh. 

The last point I would like to make briefly is that relating to 

924(c), 18 U.S.C., United States Code, that says that if you use or 

carry or discharge a gun in the course of the commission of a crime 

of violence, you automatically receive a mandatory minimum 10 

years stacked on top of the other sentence for the other offenses. 

In this case, the district court had to impose that sentence, but it 

is the exercise of judicial discretion—and I believe both Senator 

Cornyn and Chairwoman Feinstein talked about prosecutorial discretion. The original indictment against these gentlemen did not 

include that 924(c) count. It was added. And although I was not 

personally involved in the communications at that time between 

trial counsel and Mr. Sutton’s line prosecutors in El Paso, it is my 

understanding that a plea bargain offer was extended to Compean 

and Ramos, it was refused, and then the 924(c) count was added. 

The Supreme Court of the United States in Bordenkircher v. 

Hayes and more recently in U.S. v. Goodwin has said that a prosecutor can retaliate against the defendant who wants to take you 

to trial and allow the ante to be upped, so to speak. But the question remains: Is that an intelligent prosecutorial discretion? I think 

it sends a terrible message to law enforcement. You know, if you— 

924(c) was originally enacted to try to encourage criminals to leave 

their guns at home. When you go out to commit a felony offense, 

leave your gun at home, or you are going to get tagged with a lot 

of additional time. 

These agents carry guns in the line of duty. They have to carry 

guns. This is a 17-minute long segment of their life from the original dispatch at approximately 1:11 p.m. on the date in question 

until when the ‘‘all clear’’ is broadcast. Seventeen minutes of a 

high-speed chase ending up at a ditch near the border, and Ramos, 

unlike Compean, does not pick up his brass, does not fire 10, 11, 

or 12 times. He makes one shot—one shot after hearing what he 

believed to be an exchange of gunshots while he is down in the 

canal and not capable of seeing what is going on. 

If we are going to require our law enforcement officers to stop 

and investigate who is shooting at whom and what is going on before they can rely on the actions of their fellow officers, we send 

a terrible message out there. A terrible message. And if I was— 

Senator FEINSTEIN. Would you conclude, Mr. Botsford? You are 

over time. 

Mr. BOTSFORD. Thank you very much. I will be glad to try to answer any questions, Senator. Thank you. 

20 

[The prepared statement of Mr. Botsford appears as a submission 

for the record. 

Senator FEINSTEIN. Thank you very much. 

My first question is of Deputy Chief Barker. What should an 

agent do if a fleeing drug suspect is told to stop and does not? 

Mr. BARKER. If the person does not pose a threat to them, they 

have to use other than deadly force to try to stop them. In other 

words, chase them— 

Senator FEINSTEIN. And how would they do that? 

Mr. BARKER. To chase them. To chase them on foot. And— 

Senator FEINSTEIN. And if they had tried to chase them and the 

chase failed and they still were yelling ‘‘Stop’’ ? 

Mr. BARKER. That does not authorize them to shoot at them, 

Madam Chairman. 

Senator FEINSTEIN. So, in other words, any drug dealer on the 

border who does not obey a command and runs cannot be shot? 

Mr. BARKER. Yes, ma’am, unless there are other circumstances. 

Just for the fact that they are running and they were drug dealers, 

they cannot be shot. 

Senator FEINSTEIN. No wonder so much drugs are coming across 

the border. It is— 

Mr. BARKER. Unfortunately, those— 

Senator FEINSTEIN.—amazing to me. 

Mr. BARKER. Unfortunately, even drug dealing—as you can see 

from my experience and from my career, I have been involved in 

drug enforcement. Even though as despicable as it is, it is not a 

capital offense, and agents are limited in when they can use force. 

And there are only three circumstances when they can. 

Senator FEINSTEIN. Let me debate this, because I have read 

924(c), and it is pretty clear to me that 924(c), which was additionally charged, is really—the intent of it is for the person involved 

in drug trade because it has got various qualifications. You get a 

certain amount of time if you use a machine gun or a destructive 

device. If you use a short-barreled rifle, a short-barreled shotgun, 

or semiautomatic assault weapon, that is when it is 10 years. So 

it is clearly written with the view of being applied to a drug dealer, 

to encourage that drug dealer not to carry a weapon. But in the 

event someone does, in the event there is a split-second decision 

and the arresting officer—or the officer thinks that individual is 

armed, my goodness. 

Mr. BARKER. The question was posed of whether the person is 

fleeing or not where they posed— 

Senator FEINSTEIN. He was fleeing. Let there be no doubt. 

Mr. BARKER. Correct. And— 

Senator FEINSTEIN. No one disputes that. 

Mr. BARKER. Correct, and I am not familiar with 924(c). I am 

going by the policies that these agents have to follow in enforcing 

the law, whether it involves a drug smuggler or an alien. There are 

circumstances when they can use their firearms, use deadly force, 

and there must be a threat to them, must be a threat to their partner, must be a threat to an innocent third party, they can use 

deadly. Other than that they cannot. Unfortunately, that is just the 

way it is. 

Senator FEINSTEIN. Thank you very much. 

21 

Mr. Botsford, you mentioned that use immunity, transactional 

immunity is for 1 day only, and that an individual normally has 

their Fifth Amendment right suspended when that kind of immunity is evoked. I did not understand it. Could you explain that once 

again, please? 

Mr. BOTSFORD. Certainly, Your Honor—I am sorry. 

[Laughter.] 

Senator FEINSTEIN. That is all right. 

Mr. BOTSFORD. I am just so used to talking to judges, Senator. 

What can I say. 

Senator FEINSTEIN. It is rare around here you get that kind of 

compliment. Thank you. 

Mr. BOTSFORD. The Government represented to the district court 

that this immunity agreement bestowed upon Davila applied only 

to the day of the events, February 17, 2005, and that, therefore, he 

did not have immunity as to this alleged second load. 

Unfortunately, that is not accurate. The immunity agreement 

that was given to Davila, which is use immunity, co-extensive with 

the statutory grant of use immunity contained in 18 U.S.C. Section 

6001 through 6003, when you have that use immunity, that means 

everything you say in a court of law is protected. None of it can 

be used against you. And, therefore— 

Senator FEINSTEIN. Does that mean you can continue to bring 

drugs in and you have immunity? 

Mr. BOTSFORD. No. That just means that he, Davila, could not 

take the Fifth Amendment on that second load and that, therefore, 

the defense attorney should have gotten to cross-examine about 

that second load. Therefore— 

Senator FEINSTEIN. Did you find any information that they knew 

about the second load at the time? 

Mr. BOTSFORD. Your Honor, there are certain sealed materials 

that I cannot address. 

Senator FEINSTEIN. I am aware. That is why I asked you. Do you 

have any information? 

Mr. BOTSFORD. Yes, separate from—I am not going to talk about 

any sealed materials, but there are clear indications in the record 

and hearings held during the course of the trial, colloquies whereby 

the defense did want to cross-examine Davila about the allegations 

of a second load. The Government line prosecutors in the courtroom 

represented to the court that he, Davila, should not be forced to answer questions about that second load because his immunity agreement did not cover that second load. That, unfortunately, is not accurate, as reflected by the immunity agreement. 

The court ruled that Davila could take the Fifth Amendment as 

to the second load and, therefore, would not allow the defense attorneys to cross-examine him in the presence of the jury because 

then Davila would be taking the Fifth Amendment in the presence 

of the jury, which is kind of a no-no from a Federal judge’s perspective, and it would have been unfair. 

So there are definitely indications in the record that the defense 

counsel did want to question him and that, unfortunately, the Government line prosecutors misrepresented, in my opinion, what that 

immunity agreement was all about. 

Senator FEINSTEIN. And why would that information be sealed? 

22 

Mr. BOTSFORD. Your Honor, you would have to—well, actually I 

believe there is an ongoing investigation. That is what Mr. Sutton 

has told us in his testimony, and I am not going to take issue with 

that statement at all. 

Senator FEINSTEIN. That was begun at that time? 

Mr. BOTSFORD. Yes, Your Honor. Yes. 

Senator FEINSTEIN. OK. Senator Cornyn. 

Senator CORNYN. Thank you. 

Mr. Botsford, in your brief that you have filed with the Fifth Circuit, you have talked about the message that this prosecution 

sends to other Border Patrol agents, other law enforcement officials 

working along our border. You said that this prosecution sends a 

message to every law enforcement agent that if you shoot in the 

line of duty and you cannot prove that you are justified in using 

deadly force, regardless of whether you were mistaken in that belief, you will be prosecuted and receive at least 10 years’ incarceration under 18 U.S.C. Section 924(c) stacked on top of other sentences—this despite the fact that Section 924(c) was never intended 

by Congress to be used to punish law enforcement officers who use 

their weapons in the line of duty. 

Do you believe that the use of this mandatory minimum sentence 

against a law enforcement officer is misplaced? 

Mr. BOTSFORD. I do, Senator, particularly as to the law enforcement officer that is on the job, engaged in the line of duty, and who 

in good faith believes a gun is being pointed at him. Remember, the 

law does not require that he be correct. If he has a good-faith mistaken belief that Davila had a gun, then he is entitled to use deadly force. I have no problem with 924(c) being used against the 

rogue cop that off duty puts on a service revolver and goes out and 

helps drug dealers import marijuana or commits rapes or any other 

type of crime. But for our law enforcement officials that are on the 

job doing their darnedest to do their job and who may have made 

a mistake—maybe they made a mistake. I was not there. But certainly it sends a terrible message to those folks. I would imagine 

that many, many officers are going to be hesitant to ever pull their 

guns. 

Senator CORNYN. Well, this mandatory minimum prison sentence 

under Federal law for illegally possessing or brandishing or using 

a firearm in commission of another crime, does it logically—if, in 

fact, the rationale is to dissuade criminals from using a firearm in 

the first place and committing other crime, does it make any sense 

to apply that law to a police officer? For example, a Border Patrol 

agent, who, by virtue of their job, must possess, use, brandish, and 

occasionally discharge a firearm in the course of their official duties? 

Mr. BOTSFORD. Senator, I do not think it does, and I do not think 

anybody would suggest it does, and quite candidly, it is a tragedy 

that it was used in this situation. 

From what I have read of the legislative history, it really was not 

designed to apply to law enforcement officers in the first instance, 

ever. But it has been applied, and there are issues raised on appeal, which I do not want to talk about here today, that talk about 

whether these agents had fair notice that if they made a mistake 

in pulling their guns and ascertaining whether they could use 

23 

deadly force to apprehend a fleeing felon, that they would ever be 

subjected to this type of prosecution. It is an absence of fair notice. 

Senator CORNYN. Let me ask you, Mr. Botsford, about the indictments that were rendered in this case. The original indictment was 

dated April 13, 2005. It contains three counts, none of which include a count for violating the firearms statute. Correct? 

Mr. BOTSFORD. That is correct. Yes, Senator. 

Senator CORNYN. There was a second superseding indictment 

that, instead of three counts, now is eight counts, which does include the firearm counts. That was on September 28, 2005. There 

was a third superseding indictment filed December 21, 2005, and 

then a fourth superseding indictment filed January 25, 2006. 

Is it your impression or belief that these subsequent indictments, 

unlike the original indictment, include the 924 firearm violation 

which got these two defendants a 10-year mandatory minimum 

sentence on top of their other sentence, were used in an inappropriate or perhaps even vindictive way once the plea bargain offered 

by the Government was turned down? 

Mr. BOTSFORD. Yes, Senator, I do. There was continuing dialog 

I have been informed of—again, I was not there, but I view it as 

the Government upping the ante trying to put more pressure on 

these two citizens to plead guilty to something in order to dispose 

of the case, which is not untypical, but I believe it is vindictive, and 

in this case inappropriate. 

Senator CORNYN. We talked about the power that a prosecutor 

has, and is it your experience that prosecutors, once a plea bargain 

is turned down by a person charged with a crime, will vindictively 

up the ante in such a way that increases the likelihood of a disproportionately long sentence in order to punish the defendant for 

turning down the plea bargain? 

Mr. BOTSFORD. I suggest, Senator, that it all depends on the individual line prosecutor involved in the case. Some prosecutors, no. 

Some prosecutors, yes. I do not know the back-door scenes behind 

the decisions to up the ante in this case. I cannot address that. 

Maybe Mr. Sutton can, if he was involved in them. But sometimes 

that definitely does happen. 

Senator CORNYN. Deputy Chief Barker, let me ask you, in the 

case of Agent Ramos, who was down in this ditch when he heard 

the shots discharged by Agent Compean, it is fairly safe to say that 

he knew that Mr. Davila was in the country illegally, that he was 

associated with illegal drug traffic. He knew that there had been 

a high-speed chase. He had heard his fellow agent, Agent 

Compean, shoot on multiple occasions. He knew that there had 

been an altercation; that, despite carrying a shotgun, that Davila 

and Compean had had an altercation that Agent Compean had hit 

the ground; and Agent Ramos saw the person fleeing, and there 

was testimony that he saw a shiny object in Davila’s hand which 

he thought was a weapon. 

Are you telling us that it is unjustified for Agent Compean under 

those circumstances to discharge his weapon and injure this drug 

dealer? 

Mr. BARKER. Absolutely not. Under those circumstances they 

could, if they see a shiny object. Again, it has been said before that 

we do not put—we do not supersede an agent’s decision to use 

24 

deadly force when the agent believes that there is a need to do so. 

So if all those circumstances are there, yes. 

The issue here—and being involved with the case from the beginning—there was nothing that said initially when this case happened that this person was armed. That creates the issue here. Because there was a period of time—because if an agent is—if a person is armed, an agent finds that the situation is dangerous, he 

lets other agents know this. One of the first things that would be 

said if a person uses deadly force is, ‘‘I thought the person was 

armed.’’ That was never said on that day. 

Senator CORNYN. Well, let us say the agent is just mistaken, 

with his heart pumping, adrenaline flowing. We know there have 

been firearms discharged. We know that there is a drug dealer who 

is fleeing from law enforcement agents. Let us say a Border Patrol 

agent is just mistaken, thinks he sees a gun, and the price of his 

being wrong that there is a gun and Agents Ramos and Compean 

do not try to defend themselves or discharge a weapon is they could 

be dead. 

Mr. BARKER. Correct. 

Senator CORNYN. Why isn’t it appropriate for a Border Patrol 

agent, law enforcement official, to exercise their discretion under 

those circumstances and— 

Mr. BARKER. They do. 

Senator CORNYN.—use that deadly force? 

Mr. BARKER. They do, and in those circumstances the agent gets 

the benefit of the doubt. And that is the way it always turns out. 

Senator CORNYN. So what happened here is there was a factual 

dispute as to whether there was a weapon. 

Mr. BARKER. Yes, sir. 

Senator CORNYN. And you believe the jury did not believe that 

there was actually a weapon. 

Mr. BARKER. Correct, and, in fact— 

Senator CORNYN. Would that account for a mistaken belief in 

good faith that there was a weapon? 

Mr. BARKER. Yes, sir. In fact, I would have to confess that, being 

involved in the case from the beginning and the facts surrounding 

the events on that day, I believe that there was no gun. 

Senator FEINSTEIN. Senator Sessions. 

Senator SESSIONS. Thank you, Madam Chairman. 

I do not think, Mr. Bonner, you or anyone would dispute this 

rule that exists, has been established for quite a long time now, 

that a police officer of any kind is not entitled to shoot someone 

who is fleeing if they think they are not in danger or may be in 

danger. Isn’t that just a standard rule that every officer in virtually 

every jurisdiction in America is taught? 

Mr. BONNER. It is. And, you know, to be clear about this, it really 

has no relevance whether that was 750 pounds of marijuana or 

whether it was 750 pounds of food and clothing for orphans. The 

reason they shot was they believed that that individual had a 

weapon and was pointing the weapon at them. That is what justified the shooting. 

Senator SESSIONS. Well stated, and I think that is important. 

Now, is there any dispute, Mr. Botsford, that this guy had a shotgun? Was that suggested? Was a shotgun ever recovered? 

25 

Mr. BOTSFORD. Agent Compean was holding a shotgun as Davila 

got out of his van, ran down through and up the ditch toward him, 

Compean yelling ‘‘Stop,’’ along with agents on the other side 

yelling, ‘‘Stop.’’ Davila did not stop. He came up and tried to—actually got into an altercation with Compean when Compean was 

armed with a shotgun. I mean, I think the man was dangerous. He 

obviously was not going to stop. He obviously had fled and led the 

officers in a high-speed chase from downtown Fabens back to the 

border. He was intent on getting away and not being apprehended. 

Senator SESSIONS. And what is the Supreme Court ruling on 

high-speed chase and the use of force? 

Mr. BOTSFORD. The most recent case was decided in April of this 

year, and it is by the name of Scott v. Harris. The Supreme Court 

determined that an officer could use deadly force to stop a fleeing 

felon who was in a car driving in a dangerous manner. That is a 

followup to the Supreme Court opinion in Graham v. Connor back 

in 1987 that talked about the use of deadly force in a seizure. 

Senator SESSIONS. Well, you know, this thing strikes me—you 

used the phrase ‘‘tragedy,’’ and I think that is a good word for it. 

It is almost Kafka-esque. Event after event after event broke 

against the officers to the point that we have ended up with a judgment that I think is excessive based on the error that they perhaps 

undertook and made. It is just really, really unusual. 

First of all, 924(c) is designed to deal with criminals who carry 

firearms during the commission of felonies and crimes of violence, 

and drug offenses specifically. And I have used it one time against 

a police chief who sold drugs out of his car. I charged him with carrying a firearm during the—selling dope. 

But this is quite different from that. These officers came to work 

with no criminal intent, no mind-set to commit any crime. Indeed, 

their mind-set was to enforce the law and try to create a lawful society. And in the course of this altercation and the series of events 

that occurred, weapons are discharged, and someone is hurt, and 

we end up with this extraordinary punishment. 

Now, I suspect, Madam Chairman and others, that I can divine 

some of the thinking that goes on here, and that is that somebody 

somewhere concluded that some discipline needed to be applied to 

Border Patrol agents, that we cannot have Border Patrol agents 

just shooting people right and left, and that this case is particularly troublesome probably to the prosecutor because there was an 

attempt to cover up, apparently, and it was not reported properly 

through all the channels. And then to get into those cases—and I 

have been to them. It seems sometimes the prosecutors get more 

angry with a law enforcement officer who asserts all his rights and 

privileges than he would a dope dealer because they assume that 

they would do so. And it gets to be personal and things, and they 

ended up with this kind of sentence. So I am just heartbroken 

about it and not really—and I wonder about what we should do. 

I would suggest, Madam Chairman, that the 924(c) provisions, as 

Senator Cornyn and you have suggested are not appropriate in this 

instance, is correct. It has been used in this fashion in my experience for civil rights violations where the essence of the civil rights 

violation is to use the weapon and then charge it again for double 

the sentence. It has been used, or at least I recall it being disVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00029 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
26 

cussed about arson, the destructive device is one of the weapons 

covered by 924(c). And so you double-charge, you get a double penalty, arson itself and using a dangerous device, and then you 

charge them with carrying a dangerous device during a crime of violence—that is, arson. 

That is sort of a double-charging event that I would be prepared 

to look at and see if we cannot clarify that law. 

Senator FEINSTEIN. Senator Cornyn and I were just discussing 

that. It has been used against a police officer. I found at least one 

case, U.S. v. Acosta, which involves two New York police officers. 

I do not know the date of that, but I think it is pretty clear, if you 

read the law, that it was designed to be used against drug traffickers to try to encourage the drug trafficker not to carry a weapon. 

Senator SESSIONS. Right. 

Senator FEINSTEIN. And here it is used in a different way. 

Senator SESSIONS. Well said, and I think that is pretty clearly 

the intent, and I would support a clarification. 

How did it get to be 10 years instead of 5 years under 924(c)? 

Mr. BOTSFORD. Senator, my memory of the sentencing— 

Senator SESSIONS. It says—924(c), was it a 10-year— 

Mr. BOTSFORD. It was 10 years because the gun was discharged 

as opposed to carrying. Carrying a gun is 5 years. 

Senator SESSIONS. Right. 

Mr. BOTSFORD. Discharging is 10, and then where injury occurs, 

and if death occurs, it is an even higher mandatory minimum. 

Senator SESSIONS. Right. With regard to the—my time is up, 

Madam Chairman. 

Well, it is an unfortunate series of events. Obviously this became 

a very intense prosecution, and the dice were rolled, and it came 

out all against these officers who otherwise had been doing fine 

work, it appears, and I hope that we can figure out some way to 

be helpful to them. 

Senator FEINSTEIN. Thank you very much, Senator. 

Senator Cornyn. 

Senator COBURN. Quite a compliment. Thank you. 

[Laughter.] 

Senator FEINSTEIN. Excuse me. Senator Coburn. 

Senator COBURN. Thank you. And, again, let me thank Senator 

Feinstein for having this hearing. It is conducted in the type of format we should. I have a couple of questions. 

One, is there anybody on this panel that knows—was there any 

pre-existing experience with Compean and his knowledge of 

Davila? Did he have any pre-existing knowledge of this individual 

or any thought—did he know this person? 

Mr. BONNER. No. 

Senator COBURN. There is no knowledge of him at all. 

Mr. BONNER. No. 

Senator COBURN. OK. Deputy Chief Barker, as you sit back and 

look at this, we have what we have today, we have great rules, a 

great group of people that work for the Border Patrol. If you were 

to extract yourself back and say, ‘‘What do we need to change so 

this does not happen? ’’ is there anything that needs to change? Or 

is this just an unfortunate set of circumstances that was brought 

27 

on by the Border Patrol agents not carrying out the procedures 

they should? Or should something really change? 

You have to admit there is something that does not smell right 

with this case in proportion to the punishment for what the actions 

actually were. And so my question to you: Having had all this experience, what needs to change? Should we ever experience this 

again, what needs to be changed in terms of policy, format, procedure, so that we do not have this again? 

Mr. BARKER. From the standpoint of policy, I cannot think of 

anything that needs to be changed, and I do not disagree that the 

penalty is disproportionate. There is no disagreement there. But 

the unfortunate thing is the system that we have, it worked. It 

stems from decisions that were made that day. And we have heard 

about whether this would have been a 5-day suspension or removal. It cannot be—it is not as simple as that. It is just not a simple thing of not reporting an event. It is the seriousness of it. This 

person was shot, and there was a requirement to do so. So from 

a procedural, from an administrative standpoint, I cannot see what 

needs to be changed. These agents are trained to know the circumstances when they should and should not use a weapon. 

Senator COBURN. Well, let me ask you this: It was not just the 

two agents that knew guns were fired. 

Mr. BARKER. Correct. 

Senator COBURN. All right. So everybody knew that was there 

that guns were fired. You could hear them. 

Mr. BARKER. Yes, sir. But the sequence of events brought people 

there are different times. And some did, some did not. There was 

a reference that the supervisors knew. The supervisors did not 

know that the weapon was discharged. And we heard the amount 

of time that it takes to report a discharge. It does not take 6 hours. 

It takes a memorandum to say that ‘‘I fired my weapon,’’ simply. 

And if the agent makes an oral reply, it is incumbent upon the supervisor to make the formal—or to make the written report because the policy does not require—in fact, it prohibits the agent 

from making a written report on a shooting. 

Senator COBURN. Can you see a plausible explanation—there is 

a difference of opinion on the facts. In your position, could you have 

seen a plausible explanation that was proffered by the defendants 

in this case that that, in fact, could have been fact and not other 

than fact, if you take away the fact that they did not do the reporting as required? 

Mr. BARKER. If those agents, the minute this occurred, said, ‘‘We 

thought he was armed,’’ we would not be here today. We would not 

be here today because, again, we take the word of agents. That was 

never said. The fact that they tried—they did not report it. The fact 

that they tried to keep it away from the leadership leads us to believe that there was something wrong, and there is nothing that 

has been said so far that leads us to believe that that is—or leads 

us to believe that this was just a simple mission or they did—it 

was an accidental shooting. 

Senator COBURN. Thank you. 

Senator FEINSTEIN. Thank you very much. This completes this 

panel. If I may, I thank you very much for being present, and we 

will now turn to the last panel. 

28 

Senator SESSIONS. Madam Chairman, could I ask one more question? 

Senator FEINSTEIN. Yes, of course. 

Senator SESSIONS. So that the bullet that hit the individual came 

from Ramos? 

Mr. BOTSFORD. That is what was stipulated to at trial, Senator, 

yes. 

Senator SESSIONS. So he heard shooting. Could he tell who was 

firing, which one was firing? 

Mr. BOTSFORD. He testified he believed there was an exchange 

of gunfire while he was down in the ditch, but clearly he didn’t 

know who was firing at whom. He knew that shots were being exchanged, or at least that is what he thought. He comes out of the 

ditch, sees Davila running around, Davila appears to be pointing 

a gun at him, takes one shot, as opposed to Compean’s 14 shots. 

Senator SESSIONS. And Compean did not hit, apparently did not 

hit this individual. 

Senator FEINSTEIN. Senator, would you yield for a minute? 

Senator SESSIONS. Yes. 

Senator FEINSTEIN. Isn’t Compean on the ground at this point? 

Mr. BOTSFORD. Yes, Senator, it appears that Compean is on the 

ground when Ramos comes out of the ditch. He has obviously been 

in an altercation. 

Senator FEINSTEIN. And so Ramos cannot see what happened to 

Compean, if I understand this correctly. 

Mr. BOTSFORD. That is correct. 

Senator SESSIONS. So his brother agent, as far as he is concerned, is in serious trouble, and a life-and-death situation is occurring, and he performed what he felt was the right thing to do, and 

now somebody has come back in hindsight and concluded it was 

not. 

Mr. BOTSFORD. That is correct, Senator, and I will point out also 

that there were at least three other officers that heard shots that 

did not orally report them. And by the time Ramos got back to the 

north side of the ditch through which he had come through, there 

were nine officers there, and his testimony at trial was that he 

heard a discussion of the shooting and, therefore, there was no 

need for him to orally report that shooting. 

The duty to report exists for 1 hour. He has got to report it within an hour orally to a supervisor. But he believed, quite candidly, 

that the supervisors on the scene were well aware of it. 

Senator SESSIONS. And there was no dispute that a physical altercation of some kind occurred. 

Mr. BOTSFORD. Between Compean and Davila, that is correct, 

Senator. 

Senator SESSIONS. Thank you. 

Senator FEINSTEIN. Thank you. And I am sorry, I have one other 

question. There was a cell phone found in the car. Clearly, Mr. 

Davila had to call someone to have himself picked up by the side 

of the road. Is there any evidence of what time that pick-up was, 

how long it took place after the shooting, and whether quite possibly what he had in his hand could have been the cell phone? 

Mr. BOTSFORD. Senator, the time sequence is not well established, but it appears that he was picked up on the Mexican side 

29 

of the Rio Grande by one vehicle and then subsequently a second 

vehicle within approximately 5 minutes after he had crossed the 

river, which would have been approximately 6 to 7 minutes after 

the altercation there near the border on the American side. 

Senator FEINSTEIN. But he had to have called someone to pick 

him up. 

Mr. BOTSFORD. Exactly. And one of the defense’s theories at trial, 

Senator, was that, in fact, the shiny thing that Compean thought 

was a gun could have been a second cell phone. But we will never 

know—unless you believe Davila. 

Senator FEINSTEIN. Was the cell phone that was in the van removable from the van? 

Mr. BOTSFORD. It was, Your Honor—I mean, I am sorry, Senator, 

yes. It was. There was also an indication there had been a second 

cell phone, one in the van to accompany the van to the stash house, 

and one with Davila himself. 

Senator FEINSTEIN. I see. All right. Which was never recovered. 

Mr. BOTSFORD. Correct. 

Senator FEINSTEIN. Thank you very much. Thank you, everybody. We appreciate it. 

Senator FEINSTEIN. Our next panel will be composed or comprised of U.S. Attorney Sutton and David Aguilar. I will begin by 

introducing the United States Attorney, Johnny Sutton. He is currently serving as United States Attorney for the Western District 

of Texas. He serves as the Chairman of the Attorney General’s Advisory Committee of United States Attorneys, which plays a significant role in determining and implementing policies and programs 

within the United States Department of Justice. 

Prior to becoming U.S. Attorney, Mr. Sutton was an Associate 

Deputy Attorney General for the Department of Justice in Washington, D.C., and served as the Criminal Justice Policy Director for 

then-Governor George W. Bush. Before his service in the Governor’s office, Mr. Sutton spent 8 years as a criminal trial prosecutor with the Harris County D.A.’s Office in Texas. 

David V. Aguilar is Chief of the United States Border Patrol. He 

is the Nation’s highest-ranking Border Patrol agent. Chief Aguilar 

currently directs more than 12,700 Border Patrol agents and is expected to preside over the largest Federal law enforcement agency 

in the Nation, with a total of over 18,000 agents by the end of 

2008. 

Chief Aguilar brings to the job more than 28 years of distinguished service with the Border Patrol. While Chief Aguilar was 

Chief Border Patrol Agent of the Tucson, Arizona, Sector, the sector was recognized with the Commissioner’s aware for 

antiterrorism operational achievements. 

So, if we could, we will begin with Mr. Sutton. Please proceed. 

But before you do, I have some statements I would like to enter 

into the record: one on behalf of Senator Kyl and one on behalf of 

Senator Feingold. Those will be made part of the record. 

Please proceed, Mr. Sutton. 

30 

STATEMENT OF JOHNNY SUTTON, UNITED STATES ATTORNEY, 

WESTERN DISTRICT OF TEXAS, SAN ANTONIO, TEXAS 

Mr. SUTTON. Thank you, Chairman. Chairman Feinstein, Senator Cornyn, members of the Committee, thank you for this invitation to discuss the importance of enforcing the law, even against 

those who are sworn to uphold the laws and the Constitution of the 

United States. 

The prosecution of Jose Compean and Ignacio Ramos has been 

the subject of widespread media attention and heated debate. The 

prosecution, however, was not about illegal immigration or illegal 

drug smuggling or even support for agents who patrol our border. 

It is about upholding the law, plain and simple, a duty which our 

Nation’s Federal prosecutors take very, very seriously. The overwhelming majority of Federal agents and police officers represent 

the best of America, and they show it every day through their bravery, their dedication, and their self-sacrifice. But experience has 

shown us that occasionally some law enforcement officers step over 

the line and commit crimes. When lawmen break the law, we must 

hold them to account. 

There has also been some debate—brought on in part by this 

case—about enforcing gun laws that have been passed by Congress. 

The fact is that it is a crime to discharge a firearm during a crime 

of violence, and we will continue to bring those charges where the 

law and the evidence warrant. 

While these convictions are currently pending on appeal, I would 

still like to try to set the record straight by discussing the facts 

that are in the public record. 

The facts of what occurred near Fabens, Texas, on February 17, 

2005, can be found in the trial record, the transcript of which I 

have posted on the website of the U.S. Attorney’s Office for the 

Western District of Texas. In short, the evidence proved that 

former Border Patrol agents Compean and Ramos fired 15 shots at 

an unarmed Mexican marijuana smuggler as he ran away from 

them toward the Rio Grande River. After striking him once and seriously injuring him, they holstered their weapons and turned and 

walked away, leaving him where he fell. Compean disposed of some 

of the empty shell casings, destroying evidence of the shooting, 

while another agent later assisted by picking up the shell casings 

that he had missed. 

To further this cover-up, Compean and Ramos failed to report 

their shooting as required and then filed a false report. Their actions after the shooting show that they knew that the shooting was 

illegal and destroyed the credibility of their later claims that the 

drug smuggler appeared to have a weapon as he ran away. The 

jury that heard their testimony at trial rejected their belated justifications. 

To excuse their crimes, they have since claimed that they were 

only doing their jobs. But the job of United States Border Patrol 

agents is to protect the American people and to enforce the laws 

of our country, not commit crimes such as assault, obstruction of 

justice, and violation of civil rights. 

I do not take lightly the decision to prosecute law enforcement 

agents for using a gun. By design, the law gives great deference to 

agents, recognizing that they must often make split-second deciVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00034 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
31 

sions, life-and-death decisions under great stress. As a general rule, 

if an agent has any reasonable basis for fearing for his immediate 

safety or the safety of another, use of deadly force is justified. During approximately the last 6 years, there have been at least 14 reported shootings by Border Patrol agents in the El Paso Sector. In 

three of these shootings, the agents killed the suspect. In each of 

those shootings, the Border Patrol agent was cleared and the shooting was ruled justified. None of these agents were prosecuted or 

even disciplined because their actions were reasonable under the 

circumstances. 

However, agents having no reasonable fear of imminent harm 

who intentionally shoot at an unarmed, fleeing suspect and then 

cover up the shooting should be prosecuted. Requiring law enforcement officers to obey the law is not unreasonable and is not a deterrent to the use of deadly force when lives are at risk. 

I know that we demand a lot of our Border Patrol agents. They 

have difficult jobs. They work in harsh conditions, in isolated areas, 

and they encounter dangerous people, some of them who will not 

hesitate to harm them. I admire Border Patrol agents, and I have 

said on many occasions in recent months that I believe that they 

are American heroes. But the sad fact is that a small percentage 

of law enforcement agents, including some Border Patrol agents, 

cross the line. Agents Compean and Ramos crossed the line. They 

are not heroes. They deliberately shot an unarmed man in the back 

without justification, destroyed evidence to cover it up, and lied 

about it. These are serious crimes. When Border Patrol agents commit crimes, as the jury believed Compean and Ramos did, faithfulness to the rule of law requires us to bring them to justice. 

I really thank you all for the opportunity to testify, and I look 

forward to answering your questions. 

[The prepared statement of Mr. Sutton appears as a submission 

for the record.] 

Senator FEINSTEIN. Thank you, Mr. Sutton. 

Chief Aguilar. 

STATEMENT OF DAVID V. AGUILAR, CHIEF, OFFICE OF BORDER PATROL, U.S. CUSTOMS AND BORDER PROTECTION, U.S. 

DEPARTMENT OF HOMELAND SECURITY, WASHINGTON, D.C. 

Chief AGUILAR. Good morning, Chairwoman Feinstein, Senator 

Cornyn, Senator Sessions, and Senator Coburn has just walked 

out. I thank the Committee for holding this hearing, which provides us the opportunity to answer your questions, and more importantly, to clarify some of the issues relating to the RamosCompean case, which has caused a tremendous amount of emotional stress for our country, our organization, the Department, 

and ultimately, our country’s criminal justice system. 

It is important for me to begin this testimony by acknowledging 

the outstanding work the men and women of the United States 

Border Patrol are doing for this country on a daily basis. The men 

and women of our organization face tremendous challenges, dangers, and harsh environments every day. Last year our agents arrested over 1.1 million illegal aliens. Over 150,000 of these had 

criminal records. Over 90,000 were other than Mexicans attempting to enter this country illegally. And all of these arrests were beVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00035 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
32 

tween official ports of entry. In addition, our agents interdicted 

over 1.3 million pounds of narcotics coming into this country and 

kept it from reaching our streets, our schools, and our communities. There is work yet to be done to gain control of our Nation’s 

rough and remote borders, but I am proud to say that the commitment of the men and women of the United States Border Patrol to 

continue expanding our efforts and making this country safer is extremely high and at a level of dedication that this country can be 

proud of. And I am personally proud of them and the difficult job 

that they do. The attitude, fortitude, diligence, and desire of the 

men and women of the United States Border Patrol, along with the 

resources and support that is being furnished by Congress, will 

provide for operational control of our Nation’s borders. 

Unfortunately, a developing trend, as we expand our control of 

the border, is a dramatic increase in border violence against our 

agents. We have experienced a dramatic and increasing trend of violence against our officers. I attribute this increase in violence to 

the fact that the Border Patrol’s achievements in gaining greater 

control and expanded control of our borders has resulted in greater 

reluctance of entrenched criminal organizations to give up areas in 

which they have historically operated in the past. They have a reluctance to give up areas where they have established them and reestablished themselves in reaction to our increased enforcement efforts. 

Border violence incidents are perpetrated against our agents on 

an all too frequent basis. In just the first 4 days of last week during the time period of July 8th to July 12th, there were a total of 

11 assaults against our officers: two rockings, two shootings, one 

where our officer returned fire, one vehicular assault, and five assaults where our officers were physically injured. 

When assaulted or threatened, our officers are trained to respond 

with the appropriate level of force required to stop the threat or the 

assault. Officer safety is of paramount concern, and this is a main 

focus of our training at the Border Patrol Academy and in our field 

training programs. In all cases, our agents must be able to justify 

that such actions were taken in defense of themselves, a partner, 

or an innocent third party. Following an incident, there are clear 

and delineated protocols that must be followed when our agents 

use force to stop or deter an assault, whether it is deadly force or 

less lethal force. These actions must be taken to preserve evidence, 

including the scene of the incident. These protocols must be followed for many reasons, to include protection of the officer. 

From February 1, 2005, through June 30, 2007, there have been 

1,982 incidents where Border Patrol Agents have been assaulted. 

These assaults include rockings, physical assaults, vehicular assaults, as well as shootings and assaults with other weapons. 

In response to these assaults, Border Patrol agents have responded with the use of deadly force on 116 occasions, with 144 

agents discharging their weapons during these 116 incidents. 

These incidents that I outline are exclusive of the Compean-Ramos 

or the Corbett case that is ongoing now. Thirteen assailants died 

as a result of agents having to defend themselves through the use 

of deadly force; 15 incidents ended with the assailants being 

wounded. Of the 144 agents involved in the 116 shooting incidents 

33 

since February 2005, investigations were conducted, internally as 

well as by independent agencies, and not a single agent has been 

criminally prosecuted for their actions during these incidents. 

The job of our agents is not an easy one. It requires our agents 

to operate under very stressful and sometimes very dangerous conditions. That is the reason why our officers are trained and 

equipped to the degree that they are. The foundational training at 

the Border Patrol Academy and recurring in-service firearms training, firearms qualifications, and the ‘‘use of force continuum model’’ 

are instrumental in ensuring that when our officers take action, at 

any threat level, they revert to their training and do so based on 

this enforcement model. Under threat conditions, our officers are 

required to make split-second decisions to diminish or stop the 

threat. These decisions are based on their perception of the conditions they face. They are trained to then follow through with protocols, policies, and guidelines relative to each of the actions that 

they take. 

Madam Chairwoman, I want to make myself absolutely clear on 

the following: I am in no way condoning, supporting, or siding with 

Aldrete Davila, the smuggler of narcotics into this country, the individual that made a conscious decision to break our laws. Aldrete 

Davila is a poster child for why United States Border Patrol agents 

and law enforcement officers throughout this country risk their 

lives every day—to protect our Nation and the American people 

from criminals like him. Our men and women protect our families, 

our society, and our way of life from individuals like Aldrete 

Davila. Perhaps that is one of the reasons why this case has caused 

such havoc. As Americans we expect to see individuals like Aldrete 

Davila behind bars. 

Those of us in the law enforcement profession must strive to remain apolitical. Our job is to uphold and enforce the law. Sometimes these duties may not be popular, but our society and our justice system demand certain levels of neutrality and impartiality 

from its law enforcement officers. 

The Border Patrol’s mission is a difficult one, which is subject to 

intense public scrutiny. Much is asked of us as Federal law enforcement officers. I am immensely proud of the men and women of the 

Border Patrol. I have and always will support each and every agent 

who performs his or her duties in accordance with the high standards that we have always sought to uphold. 

Chairwoman Feinstein, other members, this is an emotional and 

heart-wrenching case. This is a case where every Border Patrol 

agent that serves today and has ever served wishes had not turned 

out the way that it did. However, the facts of the case, the facts 

of the matter are that this incident did happen, an allegation was 

made, an investigation was initiated, the investigating agency’s 

findings were presented to the Untied States Attorney’s Office, the 

United States Attorney’s Office presented the evidence to a grand 

jury, the grand jury indicted, the case was tried in a court of law, 

a jury found the defendants guilty, and they were sentenced by the 

judge. All of these independent components of our justice system 

performed their duty; they upheld their sworn obligations independent of each other. All of the players in this case had an obligaVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00037 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
34 

tion to carry out their duty, as they were sworn to do, trained to 

do, and responsible for doing. 

I thank you for this opportunity, and I look forward to answering 

any questions that you may have of me. Thank you. 

[The prepared statement of Chief Aguilar appears as a submission for the record.] 

Senator FEINSTEIN. Thank you very much. 

If I understand the charging, Mr. Sutton, correctly, I would like 

to go through it. Count 1 was assault with intent to commit murder 

and aiding and abetting. Count 2 was assault with a dangerous 

weapon and aiding and abetting. Count 3, assault with serious bodily injury and aiding and abetting. Count 4, discharge of a firearm 

in relation to a crime of violence. Count 5, use of a firearm in relation to a crime of violence. Then there are five counts—Count 6 to 

Count 10—of tampering with an official proceeding, of which two 

were dismissed. And then Count 11, deprivation of rights under 

color of law; and Count 12, deprivation of rights under color of law. 

A total of four counts was dismissed. The defendants were found 

not guilty of the strongest of those—assault with intent to commit 

murder and aiding and abetting. And then either one or the other 

or both were given sentences on the others, as I understand it. Is 

that correct? 

Mr. SUTTON. Yes, ma’am. 

Senator FEINSTEIN. Now, the reason they received such long sentences is because they were charged with 924(c), which carries a 

7-year minimum for brandishing a firearm in connection with a 

crime of violence and a 10-year minimum if the firearm is discharged. 

Now, I think both Senator Cornyn and I have problems with this 

law because in my reading of it, it presupposes an underlying 

crime, whereas this is the underlying crime. And I think there is 

a difference. 

Let me begin with this question: How many charges were pending when you charged 924(c)? 

Mr. SUTTON. I believe three. 

Senator FEINSTEIN. Three. And why did you decide to charge 

924(c)? 

Mr. SUTTON. Because—let me back up. Can I back up for a second and explain those? The original three charges—or it may have 

been four— 

Senator FEINSTEIN. 1, 2, and 3. 

Mr. SUTTON.—were a place holder to do an indictment. The time, 

the clock starts running on us once we arrest somebody, so we did 

an initial indictment. I believe it was three assault counts. The 

trial team got the case. They began to review it. They began to investigate it. And it is not uncommon at all for them to put on further indictments, which is what they did. They put on the 924(c), 

and the reason for that, it was an obvious— 

Senator FEINSTEIN. Did they consult with you before they put on 

924(c)? Answer yes or no. 

Mr. SUTTON. The answer is no, they did not. We have a deliberative process that goes on inside our office that I can describe, but 

the answer is no. 

35 

Senator FEINSTEIN. So someone can charge in your office a 10- 

year mandatory minimum without consulting with the U.S. Attorney in charge? 

Mr. SUTTON. Yes, ma’am. 

Senator FEINSTEIN. Was there any consultation by anyone with 

Main Justice? 

Mr. SUTTON. No, ma’am. 

Senator FEINSTEIN. At any time during this case— 

Mr. SUTTON. Yes, ma’am. 

Senator FEINSTEIN.—on the charging, there was no— 

Mr. SUTTON. Nothing with regard to the 924(c). The only consultation that is required, and in this case it is just a consultation 

requirement with regard to the two civil rights charges, but no consultation requirement with regard to anything else. 

If I could maybe just take a brief second, if I can, to explain the 

interoffice procedure. This came out of the El Paso Division. My 

district covers 93,000 square miles. We have seven divisions. The 

chief of that El Paso division reviews that indictment, so the trial 

prosecutors decide what the facts and the evidence are, they 

present the indictment to their chief, and then she approves or disapproves that indictment. That was the initial— 

Senator FEINSTEIN. It is just that it is rather strange. We have 

just been through U.S. Attorney hearings where Main Justice got 

involved in a lot of things, and yet here in the charging of something that is very unusual, Main Justice does not know anything 

about it. 

Mr. SUTTON. Well, since I have been U.S. Attorney, we have 

prosecuted 33,000 defendants for felonies. We are one of the highest-producing districts— 

Senator FEINSTEIN. How many times has 924(c) been charged? 

Mr. SUTTON. A great number of times. 

Senator FEINSTEIN. A great number of times? 

Mr. SUTTON. Obviously a small percentage of that 33,000, because that 33,000 is basically 85 or 90 percent drugs and immigration because that is what we do. But we have charged it on a number of occasions. We charge the most serious, readily provable offense based on the facts and the evidence. 

Senator FEINSTEIN. All right. Now, it has been written that 

Ramos and Compean were offered plea bargains approximately 

eight times. The last offer was for 1 year in prison and reimbursement to the Governor for $35,000 in medical bills for the treatment 

of the drug smuggler. True or false? 

Mr. SUTTON. We do not discuss plea bargain negotiations. The 

reason we do that is to protect the defendant’s rights and future 

defendants in the future who are going to come and say, Look, I 

need to have this confidential, these discussions. So I cannot talk 

about those things. 

What I would like to point out, though—and I think it is important because— 

Senator FEINSTEIN. Well, I have not finished my question. 

Mr. SUTTON. I am sorry. 

Senator FEINSTEIN. In addition, Mary Stillinger, Ramos’ lawyer, 

told my staff that the final plea bargain offer was 18 months for 

36 

Agent Ramos and 24 months for Agent Compean, but that it was 

a package deal. Is this true? 

Mr. SUTTON. I cannot—I do not know the answer to that, and we 

do not discuss plea bargain offers. Those— 

Senator FEINSTEIN. Do you deny that plea bargains were offered? 

Mr. SUTTON. Oh, not at all. We certainly plea bargained—or attempted to plea bargain in this case. We were very much— 

Senator FEINSTEIN. And how many plea bargain offers were 

made? 

Mr. SUTTON. I would have to consult with the trial team. I can 

say that the part I was involved in the plea bargaining, we were 

definitely very interested in plea bargaining. We are in 95 percent, 

maybe more, of our cases work out in plea bargaining. That is 

standard operating procedure, and plea bargains were certainly offered in this case. 

I guess the point, if I could make it, is that no plea bargain offers 

were made before the 924(c) was put on. There has been an inference that we made a plea bargain offer and they did not take it 

and so we said, OK, we are going to whack you with this 924(c). 

That is not correct. 

Senator FEINSTEIN. So 924(c) was added to the list of counts 

prior to any plea bargain being offered? 

Mr. SUTTON. That is my understanding from the trial team. 

Senator FEINSTEIN. Did the defendants understand that there 

was a mandatory minimum in 924(c)? 

Mr. SUTTON. They had four very aggressive, competent lawyers. 

I am sure that they were told at the time when they rejected any 

plea bargains that if they went to trial and lost, that that 10-year 

mandatory minimum would come dropping on top of whatever 

other sentence they got. I wasn’t in those discussions, obviously, 

but I know these lawyers are very thorough, and I cannot imagine 

that the defendants would not have known that if they went to 

trial and lost that that 10-year sentence was coming down on them. 

Senator FEINSTEIN. I wanted to ask you one other question. We 

have also learned that Mr. Aldrete Davila re-entered the United 

States on at least ten other occasions between March and November of 2005 and that the documentation provided by the Federal 

Government allowed him to cross the border legally at any time 

without notifying anyone in the Government ahead of time and 

without any Government supervision while in-country. 

My question is: Is that right? Was he allowed to enter the U.S. 

without supervision? Wasn’t he required to notify anyone when he 

came across the border? 

Mr. SUTTON. What happened in this case—and it is the standard 

procedure in all cases. As you can imagine, a huge percentage of 

our cases are made with cooperating witnesses. We are generally 

trying to go into cartels. We will arrest the mule, flip them, arrest 

the stash house, flip them, and then move up toward the cartel. So, 

often, we will deal with witnesses who are part of the crime organization or at least not legally allowable in this country. 

When we need a witness, we tell our agent, our case agent, that 

we need a witness, and then that case agent goes to the CBP, you 

know, Customs people, to get the kind of border crossing that they 

need. That is something that is handled by that agency. They are 

37 

in charge of those witnesses, just like they would be in charge of 

a confidential informant. And that was done in this case. 

Senator FEINSTEIN. Yes, but you were not going after cartels in 

this case. You were going after Border Patrol agents. 

Mr. SUTTON. That is correct. 

Senator FEINSTEIN. So the bad guy was suddenly your good guy, 

and I have a hard time that you know somebody is trafficking in 

large amounts of narcotics, large amounts, and yet he is free to 

come and go from the United States. 

Mr. SUTTON. It is very regrettable. I mean, I would love to be sitting here—under normal procedure, Aldrete would be locked up 

like we lock up all these other mules. We led the Nation last year 

in drug prosecutions. We are No. 1 in going after people like 

Aldrete—dope dealers, bad guys. Unfortunately, the only reason 

that we are here today is because those two agents, Compean and 

Ramos, committed a number of serious crimes, and they are the 

ones that brought us to this point. 

I was faced and my team was faced with a terrible dilemma, 

which is we had a known drug smuggler on the other side of the 

border in Mexico with no possible way to prove a case, and I beg 

to differ with Mr. Botsford. If we charged Aldrete with a crime, Mr. 

Botsford would be the first one to run into court and say, ‘‘You 

have absolutely no evidence against this guy. You have no case. 

There is not one shred of evidence connecting him.’’ 

Senator FEINSTEIN. But just a second. Agent Compean is on the 

ground. Ramos is in a place where he cannot see him on the 

ground. Shots have been fired. I would think Agent Ramos does not 

know whether Compean is shot or not. And he fires his weapon to 

a fleeing suspect after he has said ‘‘Stop’’ at least twice that I read. 

And there is no extenuating circumstance in that set of circumstances? 

Mr. SUTTON. No, and that is one of the unfortunate dilemmas of 

this case, is that the misinformation or the big lie has been told 

over and over and over again, and that is that— 

Senator FEINSTEIN. Are you saying Agent Compean was not on 

the ground? 

Mr. SUTTON. Yes. He was not on the ground. And that is the difficulty in having a discussion like this, is that we had a 21⁄2-week 

jury trial, all these people testified, including Agents Compean and 

Ramos. There was another Border Patrol agent who was standing 

right there at the—standing with Agent Ramos on the ditch. He 

testified at trial. He observed the entire confrontation. He observed 

Agent Compean go over the levee. He testified at trial under oath 

that there was—that Agent Compean never even touched Aldrete, 

their bodies never even touched, that Aldrete—that Compean tried 

to strike Aldrete in the head with a shotgun. Aldrete ducked. 

Compean fell head first into a ditch, and then Aldrete takes off like 

a rabbit over the levee. And he— 

Senator FEINSTEIN. You are saying Compean falls into the ditch. 

The ditch was 11 feet deep. 

Mr. SUTTON. Right. He fell straight head first down into that 

ditch. Aldrete, the drug smuggler— 

Senator FEINSTEIN. So he was on the ground. 

38 

Mr. SUTTON. He was on the ground, but what Mr. Botsford was 

talking about is what Compean testified at trial. Compean’s testimony was that he took a header into the ditch, was able to get up, 

run back up the ditch, catch Aldrete, wrestle with him. He fell to 

the ground. That is absolutely false. 

Senator FEINSTEIN. Who fell to the ground? 

Mr. SUTTON. Compean. 

Senator FEINSTEIN. OK. 

Mr. SUTTON. But what the agent at the scene saw was Compean 

fall, the smuggler take off like a rabbit over the levee, and said he 

was halfway to Mexico by the time Compean got over the levee, 

and then never went to the ground, lowered—you know, got in a 

position to shoot and shot a number of times at the drug smuggler 

as he is running away. Never fell down. Their bodies never even 

touched. And that is the difficulty of explaining this in a very short 

amount of time, is we had a full-blown, 21⁄2-week jury trial where 

all these people testified, all the agents at the scene. Many of them 

were involved in the conspiracy to cover this up. And the evidence 

was overwhelming against these two—against Compean and 

Ramos. 

And the biggest, most damning piece of evidence is if—you know, 

Mr. Bonner says, well, of course he was armed. That is just not 

true. The jury heard all the evidence. All the evidence pointed the 

other way, just like Chief Barker said. If that drug smuggler/illegal 

alien was armed, there is no jury in America, or grand jury, that 

is going to indict those two agents for what they did. They have 

a perfect right to kill him dead. 

Senator FEINSTEIN. Did the jury know that this 924(c) carried a 

10-year minimum sentence to be added on top of the others? 

Mr. SUTTON. No, ma’am. 

Senator FEINSTEIN. Thank you. 

Senator Cornyn. 

Senator CORNYN. Mr. Sutton, I do not want to retry the jury 

trial, but I do want to ask you about what you knew and your involvement in this case. You did not try this case, correct? 

Mr. SUTTON. No, I did not. 

Senator CORNYN. It was your staff or deputies who did that? 

Mr. SUTTON. Yes, sir. 

Senator CORNYN. And was it your staff that made the decision 

to offer the drug dealer immunity? 

Mr. SUTTON. Yes, sir. There is a level—there is a variety of approvals on that. 

Senator CORNYN. Did you have to approve that? 

Mr. SUTTON. I did not have to approve that. 

Senator CORNYN. And was that Debra Kanof or is Debra Kanof 

one of your deputies? 

Mr. SUTTON. The trial team was Debra Kanof and Jose Luis Gonzalez. 

Senator CORNYN. And while the letter—it is called ‘‘Letter of 

Limited Use Immunity,’’ which is March 16, 2005—suggests that 

this was, as it says, limited use immunity. It is a fact, is it not, 

that on page 51 of Volume 1 of the statement of facts, that Debra 

Kanof tells the court, ‘‘And so we basically gave him blanket immuVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
39 

nity for any drug or immigration crime that he might have been 

committing on that day.’’ Is that correct? 

Mr. SUTTON. Yes, sir. 

Senator CORNYN. So this drug dealer got blanket immunity, and 

I want to ask you a little bit about the terms, even of the limited 

use immunity, which—the letter that was signed, I think Mr. 

Botsford alluded to this earlier, by J. Brandy Gardes. Is that correct? 

Mr. SUTTON. Yes, sir. 

Senator CORNYN. Assistant U.S. Attorney. That letter of immunity required Mr. Aldrete Davila to testify truthfully and completely. It said that he must neither attempt to protect any person 

or entity nor falsely implicate any person or entity. And it said, 

‘‘Notwithstanding this agreement, testimony given you under oath 

may be used against you in prosecution for perjury.’’ 

How common is it in your experience, Mr. Sutton—and I know 

you are an experienced prosecutor—to give blanket immunity to a 

person who has committed a crime without requiring them to plead 

guilty to at least some lesser offense? 

Mr. SUTTON. It is not uncommon at all on the border. Many of 

the cases that we make, we are put in the dilemma of the evidence 

that we have, we are trying to get inside a cartel to go up the chain 

and knock down the biggest members of it. So oftentimes we are 

faced with having to make deals with other people. Usually we try 

to get a plea. That is certainly our preference, is to put the lower 

fish in prison and them flip them to go against the bigger fish. But 

it is not unusual, I believe, in our experience to give it. 

I mean, obviously we do not give it every day. You hate—a prosecutor hates to give immunity because you are giving up something. In this case, I felt we gave up very little because we did not 

have a case against Aldrete. There was no way that we could have 

made a case against him on the facts that we had. 

We gave him use immunity. What it actually ended up being was 

transactional—it is called ‘‘transactional immunity.’’ When Debra 

describes that as ‘‘blanket immunity,’’ it means that on that day for 

that load where he got shot, we cannot prosecute him for that 

crime. But we can prosecute him for any other crime that happened before or after that day. 

Senator CORNYN. Why didn’t you revoke his immunity when he 

testified—refused to cooperate and provide the names of other witnesses and other individuals during the course of the trial? 

Mr. SUTTON. I believe it was the opinion of the trial team that 

he was cooperative, that he was helping and being honest as best 

he could. 

Senator CORNYN. When requested to identify other individuals in 

his activities, he refused to provide that information, did he not? 

Senator FEINSTEIN. The people who picked him up. 

Senator CORNYN. The people who picked him up, Senator Feinstein reminds me. 

Mr. SUTTON. I would have to look at—you know, I want to be exactly right on the details. What I believe happened is Aldrete, the 

smuggler, illegal alien smuggler, pointed out to law enforcement 

that these threats—or there were threats being made. So that came 

from him. The agent then put out a nationwide report to all Border 

40 

Patrol to be careful because of this. I believe from the opinion of 

the agent and the opinion of— 

Senator CORNYN. That had to do with the issue of whether there 

was going to be some retribution against Border Patrol agents because of this shooting, right? 

Mr. SUTTON. That was to protect—that was to put a warning to 

the line to make sure that the line knew to be careful because this 

threat had gone out that this—that the smuggler, our witness, was 

saying there is talk on the Mexican side of retaliation. 

Senator CORNYN. But then Aldrete Davila, when asked who were 

those individuals who threatened to retaliate against Border Patrol 

agents, he refused to tell and violated his immunity, didn’t he? 

Mr. SUTTON. To be exactly honest on that, I believe that he did— 

refused to say or did not know. He probably—I would double-check 

that, and I will get back to you. I believe he did refuse. But in the 

opinion of the agent and the trial team, that was not in violation 

of the agreement. Remember, at that point we were faced with two 

agents who had shot somebody and covered it up, and a mule who 

was on the Mexican side where we had no evidence to make a case 

on him. And he is not coming back to America to help us, so we 

can either let these agents just slide on by and nothing happens 

to them, or we can make that unfortunate choice to give him immunity to bring him back to find out what the details are. And we 

made that choice. 

Senator CORNYN. And Mr. Aldrete Davila also gave testimony at 

the time of trial that conflicted with that of Rene Sanchez. 

Mr. SUTTON. That is correct. 

Senator CORNYN. And do you believe Aldrete Davila over a law 

enforcement officer of the United States? 

Mr. SUTTON. You know, I was not in the courtroom to observe 

those two witnesses testify. I do not know either one of those men. 

What I can say is we had a 21⁄2-week jury trial where everyone testified, including agents that were involved in the conspiracy. And 

all the evidence came forth, the very damning evidence on 

Compean and Ramos. And in my opinion, there was a million 

things—I know we do not have time to go into them, but the fact 

that they covered up this shooting was just insurmountable. 

Senator CORNYN. Well, I understand that, but my question has 

to do with whether this drug dealer was held to the terms of his 

immunity agreement to testify truthfully and completely and to not 

attempt to protect any other person. And it seems to me that the 

record is pretty clear that he violated that in those two respects, 

and perhaps others. 

I know time is limited. Let me ask you one other question, if I 

may, about the visa that this drug dealer was given. Were you involved in the decision to give him an unlimited parole visa based 

on humanitarian concerns? 

Mr. SUTTON. No, sir. 

Senator CORNYN. That was made by somebody below you? 

Mr. SUTTON. It was, but, you know, I am certainly—you know, 

I am defending—and I think our decisions in all this case—I mean, 

you can criticize some. I stand— 

Senator CORNYN. I understand your— 

41 

Mr. SUTTON. I stand by my people. I have done it very publicly. 

I— 

Senator CORNYN. I understand your role here. You did not make 

a lot of these decisions. They were not brought to you, but you are 

here defending your people, as you put it. 

Mr. SUTTON. Well, and again, I do not want to give the wrong 

impression. This was a big case. I was very much involved in this 

case. It was very important to me. I knew it was a tough case, especially with regard to plea bargains. I was very much involved in 

that. 

The procedure in this case and in every other case is when we 

need a witness, we tell the agent, ‘‘We need this witness’’—for medical treatment, for debriefing. They go get them. They have a procedure that is set in place by CBP that makes those evaluations. 

Senator CORNYN. I understand that. But the trial transcripts 

show that there were no practical conditions placed on Davila’s visa 

that prevented him from entering the country basically any time 

during the period of that visa for whatever reason he wanted to 

come and go. Is that correct? 

Mr. SUTTON. I believe that is correct. Now, up until the time, obviously, there was an allegation made that he might have been involved in some other criminal activity, the minute that happened, 

obviously his card got pulled. 

Senator CORNYN. You say you could not prove that he was—you 

could not convict him of a crime of drug dealing, but you knew with 

all—I mean, in all—maybe you could not have proved it in a court 

of law—that this guy was a drug dealer, right? 

Mr. SUTTON. You are talking about—obviously, he testified in 

court that he was a drug dealer. He had a—I mean, once we got 

him immunized and brought him back, pulled the bullet out of his 

leg and matched it to Ramos’ gun, you know, then we got him to 

the scene, and once he admitted to us that that was him who got 

shot, obviously he is a doper and— 

Senator CORNYN. But your staff knew at the time that they approved the issuance of a humanitarian visa, that allowed him to 

travel back and forth unfettered before the trial, that this guy was 

a drug dealer. 

Mr. SUTTON. Yes, sir. 

Senator CORNYN. And does it concern you that—does that decision concern you? Do you agree with that decision? 

Mr. SUTTON. I think looking back on that with 20/20 hindsight 

that probably was not a very wise move, obviously. I guess to give 

you a little fuller explanation, we prosecute about 6,000 defendants 

a year. About half of them come out of El Paso. I have got 31 lawyers that have the largest caseloads in the world for Federal prosecution, and they are moving fast, and the resources we have are 

great. We have been given a lot of good resources. But we are moving fast, and we need witnesses, and we tell our agents, ‘‘Go get 

those witnesses.’’ And we do not have an agent who can sit on 

every witness that we bring across that border and say, you know, 

you are coming across with an agent. And if we want to do that, 

I mean, we will need about 20,000 new agents in El Paso. 

Senator CORNYN. Mr. Sutton, I know you guys are working hard, 

and I know you got a lot of cases and you are understaffed, and 

42 

I wish Congress would do more to help and to give you the resources and staff necessary to handle the incredible demands that 

are placed on law enforcement personnel. I feel the same way 

about Chief Aguilar. And we have not done our job here in Congress to provide the Border Patrol with an adequate number of 

boots on the ground and resources to secure our border. That is the 

reason why people are very upset across the country, in Texas and 

elsewhere, not because you guys, Chief, are failing to do your job. 

It is that Congress has not done its job. And we have got to step 

up. 

But my last question, Mr. Sutton, for this round has to do with 

the fact that during the time that Mr. Aldrete Davila was traveling 

back and forth unfettered based on a humanitarian visa approved 

by your subordinates, there is, Madam Chairman, a public document that is a report of an investigation by the Drug Enforcement 

Administration that documents a Cipriano Ortiz statement that 

Mr. Aldrete Davila transported another marijuana load to his 

house on October 22, 2005. I would ask, Madam Chairman, that 

that report be made a part of the record. 

Senator FEINSTEIN. So ordered. 

Senator CORNYN. And so I guess I would just ask: Knowing what 

you know now, Mr. Sutton, was it a mistake for your subordinate 

to approve this humanitarian visa without conditions, unescorted, 

unfettered, and to facilitate, in essence, inadvertently perhaps, but 

to facilitate a drug dealer from transporting additional loads of 

drugs into the United States? 

Mr. SUTTON. Well, just to clarify, what you are talking about is 

what has come to be known as the ‘‘October load.’’ It is the allegation that was made at trial that Aldrete, the drug smuggler, ran 

another load of dope between when he got shot and when the trial 

happened. There has been a lot said today that is wrong, and that 

is that somehow that was covered up or somehow that the judge 

or the defense attorneys did not know about that. 

All of that information was presented to the judge. She knew 

about that. The defense attorneys were very anxious to get that 

into evidence to cross-examine the smuggler on it. We argued about 

it. The judge ruled that it was inadmissible. Obviously, that decision will be a big part of David’s appeal, and the Fifth Circuit will 

decide if that was an error or not. But I guess that is under investigation. It is hard to imagine that there is anybody in America 

that would want to prosecute that case more than me. But I am 

bound by the law and the facts. 

Senator CORNYN. But knowing what you know now, do you agree 

it was a mistake to issue a humanitarian visa to a known drug 

dealer without escort, without conditions, that facilitate, perhaps 

unintentionally, but apparently did facilitate his shipment of another load of drugs into the United States? 

Mr. SUTTON. The question—and, again, not to be argumentative—assumes that Aldrete ran another load of dope in October. 

Senator CORNYN. So you doubt the DEA report that— 

Mr. SUTTON. Well, we do not know—I mean, and, again, it is all 

under seal so it is very difficult to talk about it. It is an ongoing 

investigation, and the more I say about it, the more difficult I 

make it on my people to actually prosecute when we bring a case. 

43 

Senator CORNYN. Well, it is in the public record. 

Senator FEINSTEIN. If you would yield, all he is asking—the 

question is not that. The question is: Do you believe it was a mistake to give this kind of humanitarian ongoing parole visa to a 

drug dealer? 

Mr. SUTTON. I guess what I would say is if it turns out he— 

Senator FEINSTEIN. The answer is yes or no, Mr. Sutton. 

Mr. SUTTON. If it turns out he ran another load of dope, obviously it is a huge mistake. If he did not run another load of dope, 

it is not a mistake. You know, the bottom line is we do not know 

yet whether he ran another load of dope. My team is trying to figure that out, and as soon as we get competent, admissible evidence 

to charge him, we would. And I would love to charge him this 

minute—I would have loved to have charged him a year and a half 

ago when we were debating this. But the fact is we do not charge 

people until we have competent, admissible evidence to prove it in 

court. 

Senator CORNYN. Well, my time has long run over, and I will end 

here. But you understand—I know you do, Mr. Sutton—the concern 

that people have that they feel like these two law enforcement 

agents could not get a break, got an extraordinarily long prison 

sentence for what they did and what the jury found them guilty of, 

and that this drug dealer is getting all the breaks. I think that creates a huge concern about whether justice has been done here, and 

that is obviously why we are here. 

Mr. SUTTON. Madam Chairman, if I could just briefly answer 

that. 

Senator FEINSTEIN. Yes, please. 

Mr. SUTTON. The reason all of this mess happened is because 

Agents Compean and Ramos shot an unarmed guy running away 

and covered it up. If they had not done that, they would still be 

out on the line doing their job. And even if they told us and it was 

a bad shoot, you know, we do not know where we would be. They 

would probably still be OK. But when they shoot an unarmed guy 

and cover it up, there is no one to blame in this country for what 

happened but them. We had a full-blown jury trial. They testified 

at that jury trial. It was not just the word of a drug dealer against 

them. It was everybody in that case, including a number of Border 

Patrol agents, and all kinds of evidence that pointed very, very directly that that guy was unarmed and they were shooting to kill, 

and they knew that they hit him. Agent Compean did a handwritten statement saying, ‘‘We thought that he was hit because he 

started limping’’—I am paraphrasing that. So they knew that they 

had just shot a guy and he had gotten across the line. And as far 

as they know, he is bleeding out in a bush on the other side. And 

instead of reporting it like they are duty-bound to do, they covered 

it up. They got their buddies to help them. They picked up the 

shell—you know, Compean picked up the shell casings he found 

and threw them in the river, asked Agent Vasquez to go back, pick 

up the shell casings he missed, threw them in the river. And when 

asked by their buddies who are in the conspiracy what happened, 

they did not say, ‘‘The guy pointed a gun at me and I shot him.’’ 

They said, ‘‘He threw dirt in my eyes.’’ 

44 

Now, that is very damning evidence, and that is what the jury 

heard, and that is why a West Texas jury convicted these guys, because West Texas juries do not convict cops easily. And that is why 

of all those shootings and all those killings, we cleared every one 

of those officers. And there have been three shootings where they 

shot people in the last 2 months just in El Paso. I think two have 

been cleared; maybe one is still in the pipeline. The point is we 

give these guys the benefit of the doubt. They have dangerous jobs. 

They have got guns. They are allowed to use them. We do not wait 

for them to get hit in the head with a rock or a pipe. If they use 

deadly force, no problem. But explain to us that you had a reasonable fear that you were about to get hurt or killed. And if you have 

that, you are going to be cleared. But if you shoot an unarmed guy 

running away in the back and cover it up— 

Senator FEINSTEIN. You keep saying ‘‘unarmed guy.’’ How about 

saying ‘‘unarmed drug dealer’’ ? 

Mr. SUTTON. ‘‘Doper,’’ I call him. I mean, you know— 

Senator FEINSTEIN. Well, you do not say that when you talk 

about it. 

Mr. SUTTON. Well, I said on ‘‘O’Reilly’’—and, again, I guess my 

problem, I am so—I apologize for my emotion. It is just we—my 

team has taken a real beating over this, and this is my one opportunity to try to get the facts to the American people. And I really 

apologize to you for my passion. But this is really my one opportunity, and I thank you so much for this opportunity to answer 

your questions. 

Senator FEINSTEIN. Well, we thank you, too. 

Senator Sessions. 

Senator SESSIONS. Well, Mr. Sutton, I think you are entitled to 

have your side of the story stated, and things do get twisted out 

of reason sometimes. And there was a jury trial here that heard 

all of this. It is unfortunate, I think, that it could not have been 

resolved short of this full trial. It is unfortunate that some of the 

mandatory sentences that 924(c) mandated this heavy an offense. 

I do think that your staff deserves some credit. Looking at firearms prosecutions in the Southern District of California, Ms. Carol 

Lam—we had a little matter about her removal—in 2006, she prosecuted ten firearms cases, whereas you in Texas prosecuted 894 

criminals carrying guns. And also, on immigration offenses, you 

have prosecuted almost twice the number of the Southern District 

of California. 

You know, you are not in the El Paso office. Where is your main 

office? 

Mr. SUTTON. My main office is in San Antonio. We have seven— 

we actually have eight offices. One is not staffed. I cannot get anybody to live in Pecos. But we have seven offices, and our Pecos office is staffed out of Alpine, and they drive 105 miles to court to 

go to Pecos when they have got to go to court. But 93,000 square 

miles, 660 miles of border, and we have seven offices: San Antonio, 

Austin, Waco, Midland, El Paso, Del Rio, Alpine, and Pecos. 

Senator SESSIONS. That is a good explanation of why you may 

have to delegate prosecutorial authority to assistants. But they do 

not have to come before the United States Senate and answer. 

They do not have to go on O’Reilly or listen to those challenges. 

45 

And sometimes they get a little big for their britches, I think. So 

I think it is a good lesson that the civilian authority—you—does 

have to maintain control over your cases. And when you are charging law enforcement officers, you have to deal with hundreds of 

them. And their morale is important to you. You know, it is important that you be involved. 

I guess you did tell us, did you not, that you did attempt and 

worked personally to negotiate a plea bargain you thought was acceptable? 

Mr. SUTTON. Yes, sir. I was trying to approve plea bargains, and 

obviously I cannot talk about those, and I do not want to betray 

any confidences. Obviously, the defendants can say whatever they 

want. But, yes, I was involved in approving plea bargains in this 

case. 

Senator SESSIONS. I do not understand the idea that you say you 

did not have a case against Davila. I think you could convict him 

on those facts. I mean, the guy is fleeing. Flight is evidence of guilt. 

He is stopped. His vehicle has got dope in it, and he runs off. I 

think that is a slam-dunk. 

Mr. SUTTON. Are you asking me a question? Well, the facts are— 

remember, again, we did not know anything about it until weeks 

later, so DEA treated the van as an abandoned load. They just take 

it off to a warehouse, and it is treated completely different. Had 

they told us that they had shot at the guy, it would be a whole different ball game. But both agents said they could not ID him. 

There were no fingerprints linking him to the load. The registration on the van came back to a dead end. There was no evidence, 

no physical evidence, no testimonial evidence, that said this guy 

was driving this van. And he was over in Mexico with the most important piece of evidence, that bullet just under the skin of his 

right thigh. But he was not coming back. 

Senator SESSIONS. So at the time, when he called in or the word 

came in that he was prepared to give evidence, you did not know 

even his name at that point? 

Mr. SUTTON. I think maybe the agents knew—may have known 

his name, but we definitely knew he was not coming forward. 

Senator SESSIONS. Did they know his name before the word came 

from him? 

Mr. SUTTON. No. The first contact came from the smuggler’s family contacting a friend who had a son-in-law who was a Border Patrol agent in Arizona, and then that agent did what you are supposed to do. He reported it to his supervisor and an investigation 

began. So we were faced with a Mexican doper on the other side 

of the line refusing to cooperate, refusing to come back, and we 

could not—you know, normally we would file a case against him 

and try to extradite him or maybe get a lure approved. And, again, 

I do not want to tell you too much about how we do things because 

I do not want the bad guys to learn. But we had no case that we 

could file that we could go and bring him out of Mexico. And he 

was refusing to cooperate. 

So we did not have a thing that we could put on him at that 

point, even though we were, you know, dadgum sure he was the 

doper who was in that van. 

46 

Senator SESSIONS. But until you got that contact, had you in 

some way identified him by name? 

Mr. SUTTON. I believe they—I would have to double-check that, 

but I believe once that agent in Arizona found out the guy got 

shot—because he knew that family—I think we probably got his 

name. 

Senator SESSIONS. Through that— 

Mr. SUTTON. Through his family telling that other agent. 

Senator SESSIONS. I could have convicted myself, if you had had 

him back before the jurisdiction of the court. Of course, getting him 

before the court if he is in another country is not easy to do. 

Mr. SUTTON. We did not have one piece of evidence linking him 

to that van. That was our problem. There was nothing. The agents 

could not ID him. The agents had destroyed the crime scene. The 

van had been treated as an abandoned load. DEA had taken it off 

and treated it in a different way. We had nothing linking him to 

that load, and they could not ID him. 

So the only thing—so that is why when we gave him immunity, 

we did not feel like we were giving up that much, although, you 

know, we hated to do it because he is a doper that should have 

been in prison. And had these guys done their job, he would have 

been in prison. But they did not. 

And, frankly, I was thinking about that terrorism example that— 

I am not sure which witness gave that. But I was thinking about 

imagine if a terrorist did pretend they were a dope dealer and had 

a big load, but had a bomb in the car, and our agents shot at him— 

in fact, shot him and knew they had hit him, and then lied about 

it, covered it up, destroyed the crime scene. I mean, I do not think 

they would be American heroes. That is exactly the reason we do 

not have officers who shoot at people and cover it up. It makes it 

so we cannot investigate it. 

If our agents had come to us and said, ‘‘A doper just pointed a 

gun at us and we shot at him 15 times,’’ we would be moving 

mountains to go and get that guy. But because they covered it up 

and the very first word we heard of a gun was a month later when 

Compean finally gets arrested, and then we first hear about this 

shiny object, a gun—he told nobody else, even his co-conspirators, 

about a gun. And that is why the jury rejected that in trial because 

it was not credible. 

Senator SESSIONS. Well, it is the kind of thing that—most of the 

civil rights police overreaching that I have seen, for reasons I have 

not quite understood, tend to be after high-speed chases. The guys 

are pumped up. They are really emotional. There is a struggle of 

some kind, and the guys maybe overreacted. 

What about other persons who were involved on the scene? Has 

any discipline been taken on others? 

Mr. SUTTON. I believe they have. The Chief would probably be— 

I do not want to violate any of the policies of the Border Patrol, 

but I know that there was some discipline taken. I am not sure 

how public that is, Chief. You can probably address that better. 

But there was obviously a lot of bad behavior beyond what 

Compean and Ramos did. But it was much less egregious. None of 

those guys shot anybody. There were a couple of agents who participated in the cover-up. 

47 

Senator SESSIONS. Has there been any action taken? 

Chief AGUILAR. Yes, Senator. There were three other individual 

agents that were involved on the scene immediately following. One 

of the individuals resigned in lieu of termination, and the other two 

were terminated. In fact, the last one, I believe, was 2 days ago. 

Senator SESSIONS. Thank you, Madam Chairman. This is a painful situation. 

Senator FEINSTEIN. Senator Coburn. 

Senator COBURN. Thank you. 

Mr. Sutton, does your office have discretion on whether or not to 

file a 924 charge? 

Mr. SUTTON. Yes, sir. 

Senator COBURN. Why did you file that in this case? 

Mr. SUTTON. Because we felt it was a very serious situation, a 

serious crime, that it was readily provable in this case. You know, 

I have kind of said publicly that once everybody knows the facts 

of this case, you know, when you get past the American heroes 

going to prison and a drug dealer being set free and you learn what 

the jury learned, you know that these guys committed serious 

crimes and they should be prosecuted. But I have conceded that the 

punishment in this case, the sentence is very serious, and that is 

a lot of time. 

What I can say is reasonable people can argue about that. Some 

say it is just too much time, and I have some sympathy for that. 

But there are other people who say if we do not send down a clear 

marker to our law enforcement when they literally step out of their 

position as law enforcement officers and become what I would say 

is judge, jury, and executioner—remember, the whole narrative of 

he has a gun is false. That is what they testified to. The jury rejected that. All the evidence pointed the other way. 

In fact, Mr. Bonner said that the mules always carry guns. In 

fact, our experience in El Paso is exactly the opposite. We went 

back a year before and just in the Fabens station, which is about 

30 miles east of El Paso, from January 2004 to March of 2005, the 

Border Patrol made 155 seizures, 43,000 pounds of marijuana 

seized. In all of those seizures, there was not one gun recovered. 

So we went back to October of 2001, from October of 2001 to, I 

think it was—let me make sure of my date—February of 2006, 496 

seizures of dope, most of it marijuana; I think over 131,000 pounds 

of marijuana that Border Patrol seized—again, just in Fabens—496 

seizures, one gun. 

Now, that does not mean that in this case—that does not prove 

it in this case, but I guess what I am saying is that that narrative 

is false. 

Senator COBURN. Here is the point I want to get to: I believe the 

sentence for these individuals is too heavy. I think the vast majority of the American people do. You had to know what the results 

were, if you want a conviction, that you are going to tack 10 years 

on, and yet you did that anyway. 

So I believe there is a lack of balance in what has happened 

here. I do not dispute your testimony. I have listened to you. I have 

read the facts on it. You know, because I am not 100 percent on 

the side of these two Border Patrol agents, I get blasted a lot from 

Oklahoma. But I have actually tried to find out what the facts are. 

48 

But I still think, my personal opinion is that the discretion with 

the 924 charge, I think was in error. I think that you were going 

to get a conviction anyhow, and they would have had a conviction 

based on the facts as I have read and studied them. 

I want to ask two other questions that I think the American people want to know. No. 1 is: Why is it wrong for a Border Patrol 

agent who has stopped a van that is full of drugs and the guy is 

running, why is it wrong for him to shoot him after they told him 

to stop? Why is that wrong? Answer that question for the American 

people. Here is somebody obviously in the midst of a felony, driving 

a van that is loaded with drugs, told to stop, had an encounter. 

Why is it wrong for them to shoot him if they won’t stop? 

Mr. SUTTON. Well, the first answer is that the Supreme Court of 

the United States says it is illegal to do that. You cannot— 

Senator COBURN. Under the Fourth Amendment— 

Mr. SUTTON. Under the Constitution, you cannot just—if somebody is not causing you fear, you cannot just shoot them because 

you are trying to stop them or you are angry at them or you want 

to teach them a lesson. 

Now, again, we could probably maybe change the rules, although 

that is a Supreme Court decision. It may be hard to get around it. 

And you could say to cops, ‘‘Hey, just shoot them.’’ 

Senator COBURN. No, I am talking on the border. I am talking 

on our border where we have a big problem with drugs, if, in fact, 

the message was if you come across here with drugs and we interdict you and you do not stop, we are going to wing you, we are 

going to shoot you, and that message by itself would do a lot to 

stop a lot of this, number one. 

Number 2 is—and I go back to Senator Sessions’ question, you 

know, I do not think there ought to be anybody we do not try to 

prosecute that comes across here. And I am willing to help put the 

resources in it. I do not like plea bargains on this stuff because 

what happens is you can plea bargain it and somebody else may 

get flipped, but you are not. So you continue the behavior. 

The other question I have for you, if, in fact, this notice was put 

out that there was going to be violence against the agents, no one— 

that this guy had been shot, was there not the connection made 

that maybe he is not just a one-time mule, maybe he is really connected, and the fact that if he got shot and now it is raised a whole 

level that maybe he is involved with them to a greater degree than 

just being a mule this one time? 

Mr. SUTTON. Obviously, I am in the business of putting guys like 

Aldrete in prison. I mean, that is almost all we do, is immigration. 

In El Paso, 95 percent of what we do is putting guys like Aldrete 

in prison. I mean, we whack them and we whack them hard. And 

the great irony of this situation is that my district, we have a program in Del Rio called ‘‘Operation Streamline.’’ since 2005, we 

prosecuted 20,000 illegal immigrants, the first time across. When 

you come across the line and we catch you, you go to jail and you 

get an X on your back, OK? And, of course, you know, our numbers 

are going down. 

Senator COBURN. Yes. 

Mr. SUTTON. I guess the reason I bring that up is to defend my 

team who we are really on the leading edge of aggressive enforceVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00052 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
49 

ment. You know, again, my colleagues everywhere else are working 

hard under the circumstances they are under, but we are incredibly 

aggressive, and in one area we have a zero tolerance policy, which 

actually does what you do. There are some difficulties why that 

cannot go nationwide, which we can talk about afterwards. But I 

guess my point is, look, I would love to be here with him in prison 

like all the rest. And Mr. Botsford would say, ‘‘Sutton does not cut 

many deals. Those guys are way too hard. They want a chunk of 

flesh out of every drug dealer and guy that has a gun. They are 

too tough in West Texas.’’ And we are tough, but we are tough because there are criminals coming across our border, and we are 

body-slamming them the best we can with the resources we have. 

I would make a quick point because Senator Cornyn kind of implied that I did not think we have enough resources. We have been 

given a lot of resources. We really have. Could we use more? You 

know, every Federal agents thinks they need more. But I have 

been given a lot and Border Patrol has been given a lot. We have 

a lot down there. So I do not want to leave this place with the impression that we have not been given the resources. We have been 

given a lot. 

Could we do more? Of course. I mean, it is a challenge. 

Senator COBURN. I want to go back to my original question, and 

this will be the end of it. And, Chief, I would love for you to comment. 

The Supreme Court decides. We can pass laws. They would have 

to say—why shouldn’t it be the policy of this country that if you 

are a felon coming into this country with drugs and you are seen 

and attached to those drugs, and you are running away, why we 

shouldn’t send a signal that we are going to do everything we can 

to catch you, and if we cannot catch you, we are going to try to 

wing you? Why would we not want to send that message to drug 

smugglers across this country? 

Mr. SUTTON. I think we do send that message, and that is why 

this case has been unfortunate, and some of the rhetoric and some 

of the things that people have said on national TV are so unfortunate, because, really, I mean, Border Patrol are American heroes. 

They arrest a million people a year. Somehow they are able to do 

that without shooting them in the back. And the problem is in 

these kinds of cases, at the time they are unloading their .40 calibers on this guy, they don’t know he is a drug dealer. They don’t 

know he is an illegal alien. Now, they got a dadgum good suspicion 

that he is. They smell these guys a mile away. But they could be 

wrong. 

And when we let our agents just open fire, shooting to kill—they 

both said, ‘‘We were shooting to kill,’’ and they both knew that he 

was hit. OK? 

We give these guys the benefit of the doubt, but if that is the 

rule, then some innocent person is going to get gunned down execution style by a cop, and there is a going to be an outcry. I mean, 

I used to be a death penalty prosecutor in Houston. I tried 17 murder cases. Seven of them were capital murders. I put three people 

on death row. You jump through a lot of hoops to get somebody 

convicted and all the way down the line to take them to execution. 

There is a lot of due process involved. And if we want to change 

50 

the rules that the agents on the line can make those decisions 

about who lives or dies, we can. But I guess what I would say is 

it is asking for trouble. 

Having said that, if our agents feel fear, if you throw a rock at 

us, if you hit us in the head with a rock, that is a serious danger. 

We are going to shoot back. OK? And if they can explain, ‘‘Look, 

this guy was throwing a rock that could kill me, and I shot back 

with my .40 caliber,’’ there is no Texas jury that is going to have 

any trouble with that. But when you shoot a guy that is unarmed 

and you lie about it, that is a problem. 

And I agree with you, people can second-guess our decisions 

about the 924(c). We prosecuted 33,000 defendants just since I 

have been U.S. Attorney. We make a lot of decisions, and 99.9 percent are right. I think my team did the right thing in this case, and 

that is why I have defended them so strongly. 

Senator COBURN. Would you object to a lessening of that sentence if it was lessened? 

Mr. SUTTON. Well, what I think you are asking me is what is my 

opinion on commutation, and obviously that is a separate procedure 

that is within the Department of Justice. There is a very elaborate 

procedure where all that information is brought together, the witnesses, the facts— 

Senator COBURN. I did not ask you that. What I asked you was: 

Would you object to a lessening of the sentence? 

Mr. SUTTON. I cannot say—I cannot answer that question because I am here to enforce the laws and to apply the laws as they 

are given to me. My team makes decisions. Sometimes we bring 

924(c); sometimes we do not. We use good judgment. We thought 

this was a serious situation. We thought what these agents did was 

really, really bad, it was a very serious crime, and they needed to 

be held to account. 

We plea bargained. They said no. They had four good lawyers 

that were very aggressive at trial. They knew that if they lost, they 

were going to get 10 years put on top of whatever else they get. 

And, by the way, the judge made a dramatic departure from the 

sentencing range to get them down to 1 and 2 so they are at 12. 

So what I am telling you is 924(c) is a great thing. It is good for 

law enforcement. It is good for putting the bad guys away. 

Senator COBURN. You testified earlier that the jury did not know 

that 924(c) would add 10 years. Why did the jury not know that? 

Are they precluded from knowing that? 

Mr. SUTTON. Yes, sir. All the jury decides is whether these guys 

did it or not, have we proved beyond a reasonable doubt are they 

guilty, and then the judge does the sentencing. So those are totally 

separate things. 

Senator COBURN. In your opinion, do you think that would have 

influenced jurors had they known that? 

Mr. SUTTON. It is so hard to know. I mean, that is a thing—you 

know, not to confess in front of Congress that maybe in my earlier 

days I listened at a jury room door. Let’s say hypothetically I did. 

It is always amazing what juries are talking about back in the 

back. That did not really happen, but my point is you don’t know. 

Senator COBURN. You bet. 

51 

Mr. SUTTON. You don’t know what they are doing. I can’t get inside their mind. It is a lot of time, but what I would say is you can 

argue that round and you can argue it square. I think there are 

a lot of people in this country that think cops who did what these 

guys did deserve to be in prison for a long time. 

Senator COBURN. Chief, did you want to add anything? 

Chief AGUILAR. I am sorry, Senator? 

Senator COBURN. Did you want to add anything in terms of my 

question about giving you greater authority on the border in terms 

of suspected drug dealers? 

Chief AGUILAR. Senator, the border needs to be brought under 

control, but I do not believe Americans would want law enforcement officers summarily executing individuals. 

Senator COBURN. Wait a minute. Let’s don’t twist words. That is 

not what I said at all. What I said was if you see them known with 

drugs coming across, to say stop and they don’t stop, they run, that 

is what I said. That is not summarily executing anybody. 

Chief AGUILAR. Well, Border Patrol agents are taught to stop the 

threat, up to and including killing an individual, and that is done 

when there is a means, opportunity, and intent for that individual 

to hurt either the agent, an innocent third party, or his or her partner. That is the way that we operate today. 

It is a tough situation, Senator. The border needs to be brought 

under control, but I do not think we are there yet as a country to 

take those kinds of actions. 

Senator COBURN. OK. Thank you. 

Senator FEINSTEIN. The time is running out. I would like to 

thank both of you very much, and I would like just to share with 

you my observations from this hearing. 

I am going to look at 18 U.S.C. 924(c). I think it needs to be 

clarified. As I read it, there has to be an underlying crime, and I 

do not see the underlying crime here. I think this really is a case 

of prosecutorial—oh, how to put it. Overreaction in the charging? 

I am hard pressed to see why these two men, despite the fact 

that they did not file a report, despite the fact that they did not 

tell the truth—this was still a drug dealer who was shot fleeing, 

shot in the rear end fleeing, and he was not an innocent person. 

And by his subsequent activity, I believe he has shown he was not 

an innocent person, and yet he was given unprecedented—at least 

it seems to me unprecedented immunity, to come back and forth 

across the border. And the officers are serving 11 and 12 years in 

prison. 

We are going to take a good look at this section of the code and 

see if there is any amendment that might be considered. 

Mr. Sutton, you said because they covered it up, they got 11 and 

12 years. That is a huge penalty. I agree with Mr. Hunter when 

he said it is more than most people serve for murder. And maybe 

this points out the real problem with mandatory sentencing. But 

what I cannot believe is that somebody in this instance would 

charge this, never consult with their superior, and their superior 

would never consult with Main Justice, when we know that there 

are these consultations back and forth with Main Justice on lesser 

cases all the time. 

52 

I am one who believes this sentence is disproportionate. Now, 

what we can do about that remains another subject, and Senator 

Cornyn and I will have to discuss this as well as with other members. But at least those are my views. 

Senator, do you have a comment you would like to make? 

Senator CORNYN. Thank you, Senator Feinstein. I just have a 

couple more questions. 

Mr. Sutton, we talked a little bit earlier about Mr. Aldrete 

Davila’s obligations under the immunity agreement, and I want to 

get to that in a second. You said there was not any evidence with 

which to try and convict Mr. Aldrete Davila for running a load of 

drugs, but I would like to, Madam Chairman, offer as part of the 

record a Homeland Security Memorandum of Activity dated March 

14, 2005, if I may. 

Senator FEINSTEIN. So ordered, and I would like to add to that 

a number of investigative reports, if I might. Thank you. 

Senator CORNYN. This document, which I do not know if you 

have had a chance to see or not, Mr. Sutton—admittedly, it is a 

Homeland Security Office of Inspector General document. It is the 

notes, investigative interview of Rene Sanchez, a Border Patrol 

agent, conducted by Chris Sanchez, no relation, in which Rene Sanchez, who was apparently somehow distantly related, I guess, to 

Mr. Aldrete Davila, where Mr. Aldrete Davila admitted to him that 

he was afraid to come forward because he had been transporting 

a load of marijuana and he was afraid the U.S. and/or Mexican authorities would put him in jail. 

Why wouldn’t that kind of evidence, together with the circumstantial evidence of flight and others, provide you the evidentiary basis upon which to convict Aldrete Davila of a crime? 

Mr. SUTTON. If I may, Madam Chairman, if you would indulge 

me for just 1 second just to clarify, and then I will answer the 

question. 

With regard to approval on the 924(c), the supervising chief in 

the El Paso Division must approve that charge, and then all those 

indictments are just like we would every other indictment, and nobody gets indicted without approval from— 

Senator FEINSTEIN. You are speaking about 924(c)? 

Mr. SUTTON. I am talking about all indictments, including the 

924(c) indictment. 

Senator FEINSTEIN. Aren’t you the person in charge? 

Mr. SUTTON. Yes, ma’am. I— 

Senator FEINSTEIN. And you didn’t approve it? 

Mr. SUTTON. I did not. I delegate much of the authority for that 

to my criminal chief and to my division chiefs. Remember, I have 

seven offices over 93,000 square miles. But I wanted to clarify that 

those chiefs, who I have a lot of confidence in, who are career DOJ 

employees, make those decisions, and then they are reviewed by 

my criminal chief. And in some of the very serious cases, they are 

reviewed by me. In fact, those cases are not even indicted— 

Senator FEINSTEIN. So this is not a serious case. 

Mr. SUTTON. It is a serious case, but as a practical matter, we 

looked at this as just another one of our, you know, shootings, and 

we prosecute a number of Border Patrol agents and law enforcement officers. You know, we—it is serious, obviously, but it is 

53 

something that we do routinely. Even though 99.9 percent of them 

are doing it right, there are a few that go wrong, and we prosecute 

them. 

Rene Sanchez, I believe, is no relation— 

Senator CORNYN. People might have forgotten the question. Let 

me just restate it since you were answering Senator Feinstein’s 

previous question. This document, that is made part of the record, 

is a report of Chris Sanchez, the Office of Inspector General of the 

Department of Homeland Security. He talked to Rene Sanchez, 

who told him that Aldrete Davila admitted to him that he had been 

running a load of drugs, and that is the reason he had not come 

forward. And my question is: If you had been able to—why weren’t 

you able to use that admission, that evidence of what Aldrete 

Davila told Rene Sanchez together with circumstantial evidence in 

order to convict Aldrete Davila of some crime? 

Mr. SUTTON. It was the opinion of career prosecutors who had 

tried many, many of these cases—and, again, the trial team has 35 

years of Federal prosecutorial experience between them and 85 jury 

trials between them. It was their opinion that that evidence—first 

of all, we were not sure if it was admissible. There was a question 

of its admissibility. But assuming that it was admissible, that was 

not enough, a telephone conversation over the border is not enough 

to say that he is connected, because there is nothing else to corroborate that. And that is the great irony of the situation, is I am 

attacked because I have not been able to indict on the alleged October load. The reason—and I do not want to go into too many details—is we—you are right, I do not like to—we cannot go on the 

testimony of just a dope dealer because they are not credible. You 

have got to corroborate what they say, because a defense attorney 

like David Botsford will come in and destroy them on the witness 

stand. So if that is all you have, that is not a provable case. That 

is not enough to make a case in a courtroom, and that was the 

opinion of my team. 

Senator CORNYN. Well, what about the bullet that the doctor 

pulled out of Aldrete Davila, which came from his gun? 

Mr. SUTTON. Again, we did not get the bullet until we convinced 

him to cooperate and come back, because under your scenario—let’s 

say you try to indict him for that telephone admission. That is all 

you have got, and if the grand jury would even indict, and assume 

that they would, you would have to extradite him from Mexico. And 

I do not think you could do it, and I certainly do not think you 

could prove up a case in court based on that, because we did not 

have the bullet. And for all we know, he might have said it was 

time to remove this bullet, or we might never have seen him. 

Senator CORNYN. My last couple of questions relate to the fact 

that in violation of his immunity agreement, Davila refused to cooperate and actually—and he was required to testify truthfully, but 

Davila testified under oath that Special Agent Rene Sanchez counseled him to demand immunity, sue the Government, and even 

helped refer him to an attorney. Agent Rene Sanchez denied that 

under oath. So my question is: Why haven’t you prosecuted Aldrete 

Davila for perjury? 

Mr. SUTTON. Well, it is like every jury trial I have ever been in, 

and I have been in a lot. I was not in this one, but witnesses’ stoVerDate Nov 24 2008 11:24 Nov 17, 2009 Jkt 053357 PO 00000 Frm 00057 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\53357.TXT SJUD1 PsN: CMORC
54 

ries conflict, and that is the beauty of the jury system, is we have 

12 people that we pick from the community that live there to look 

them in the eyes and decide what the truth is. 

Senator CORNYN. I understand that. 

Mr. SUTTON. I don’t know what the truth is on that. 

Senator CORNYN. Everybody understands it is the jury’s job to 

decide who is telling the truth and who is not. But why didn’t you 

present that to a jury and let the jury decide are they going to believe a law enforcement officer, Rene Sanchez, or a dope dealer? 

Mr. SUTTON. It is my understanding that both of those guys testified, and that part of the testimony was contradictory. 

Senator CORNYN. Right. 

Mr. SUTTON. So, you know, the jury heard that and saw that, so 

they evaluated that when they were making their decision. 

Senator CORNYN. But not on a perjury allegation because you did 

not charge Aldrete Davila with perjury. 

Mr. SUTTON. Right. That would not be the case that we would 

charge with perjury because we would not have been able to prove 

it. I mean, it is not uncommon for a witness to say this happened 

and the other witness to say, no, it happened this way. 

Senator CORNYN. So you cannot try and convict someone for perjury based on the statement— 

Mr. SUTTON. No. We could— 

Senator CORNYN [continuing]. Relating to the agent? 

Mr. SUTTON. No. I think we could, but our evaluation, at least 

the trial team’s evaluation, was that that was not a provable crime. 

I have not specifically asked them that question, but I guess my 

point is that it is not unusual for that— 

Senator CORNYN. I do not understand what you mean—you say 

it is not a provable crime. If, in fact, you can convict someone of 

perjury based on the sworn testimony that is believed by the jury, 

then why couldn’t you do that here based on the testimony of Rene 

Sanchez which contradicted directly what Aldrete Davila testified 

to at trial? 

Mr. SUTTON. I guess we could try. The opinion—my opinion is we 

would not be able to do it. My opinion is— 

Senator CORNYN. Because the jury would not believe it? 

Mr. SUTTON. Well, because it is just—you know, who knows? 

Maybe they are remembering wrong all these other things. In order 

to make a perjury trial, you have to have a very—you have to have 

some really solid evidence, and people saying, look, this is what 

was said and I can document it, versus, oh, my memory is wrong 

or different. 

Again, you know, we did not consider that. I could talk to the 

trial team and see what their opinion is and get back to you on it, 

if you would like for me to. But the jury heard all that and that 

was part of their decision. 

Senator CORNYN. Thank you, Madam Chairman. Thank you very 

much. 

Mr. SUTTON. Thank you. 

Senator FEINSTEIN. Thank you. 

I would ask you this question once again. Your office had discretion as to whether to charge 924(c), correct? 

Mr. SUTTON. Yes, ma’am. 

55 

Senator FEINSTEIN. Thank you. 

Thank you both very much. The hearing is adjourned. 

[Whereupon, at 1 p.m., the Committee was adjourned.] 

[Questions and answers and submissions for the record follow.] 

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