Monday, July 28, 2008

Border Patrol Agents' Convictions Affirmed on Some Counts, Reversed on Others; 924(c)'s With Ten-Year Mandatory Minimums Stand

United States v. Ramos, No. 06-51489 (5th Cir. July 28, 2008) (Jolly, Higginbotham, Prado)

As you are probably already aware, Border Patrol agents Ignacio Ramos and Jose Compean were convicted of a variety of offenses after covering up and failing to report their shooting of an unarmed, fleeing drug smuggler. But in contrast to all the controversy and publicity surrounding the case, the legal issues resolved by the appeal are pretty ho-hum. That's partly because of the nature of the issues raised (challenges to evidentiary rulings and jury instructions, and whether 924(c) applies to law enforcement officers who commit crimes while on armed duty), but also because, as the court put it at one point, "[o]nce at trial, this case was hardly more than a dispute between . . . two sets of facts. The jury was the fact-finder. The jury heard all of the evidence. The jury returned the verdict. The jury did not believe the Border Patrol agents. It convicted them. The government’s evidence, if believed, is sufficient to uphold the convictions. And that is pretty close to the bottom line on [the] guilt or innocence of these agents."

In the end, the court affirmed Ramos and Compean's convictions for assault with a dangerous weapon, assault with serious bodily injury, use of a firearm in the commission of a crime of violence, and deprivation of rights under color of law. But the court reversed the agents' convictions on several counts of tampering with an official proceeding. Of course, as the court notes, the vacation of the sentences won't have a whole lot of practical effect on the remand for resentencing, because the 924(c)'s accounted for ten years of the eleven- and twelve-year sentences that the agents received.

Nevertheless, there's a couple of things in the opinion worth highlighting. First is the court's extensive discussion of the ins-and-outs of immunity agreements and the tension that can arise between a defendant's Sixth Amendment right to call and cross-examine witness, and a witness's right to invoke his Fifth Amendment right not to provide testimony against himself. Keep it in mind if you need a primer on the basics of immunity agreements.

Second, the court held that the term "official proceeding," for purposes of 18 U.S.C. § 1512, "does not apply to routine agency investigations of employee misconduct." (Hence the reversal of the obstruction convictions.) Instead, "'official proceeding' is consistently used throughout § 1512 in a manner that contemplates a formal environment in which persons are called to appear or produce documents. Thus, in all the instances in which the term 'official proceeding' is actually used in § 1512, its sense is that of a hearing rather than simply any investigatory step taken by an agency." (cites omitted). Now you know.

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