    [Senate Hearing 110-901]
    [From the U.S. Government Publishing Office]

                                                            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

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                           COMMITTEE ON THE JUDICIARY

                      PATRICK J. LEAHY, Vermont, Chairman
    EDWARD M. KENNEDY, Massachusetts     ARLEN SPECTER, Pennsylvania
    JOSEPH R. BIDEN, Jr., Delaware       ORRIN G. HATCH, Utah
    HERB KOHL, Wisconsin                 CHARLES E. GRASSLEY, Iowa
    DIANNE FEINSTEIN, California         JON KYL, Arizona
    RUSSELL D. FEINGOLD, Wisconsin       JEFF SESSIONS, Alabama
    CHARLES E. SCHUMER, New York         LINDSEY O. GRAHAM, South Carolina
    RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
    BENJAMIN L. CARDIN, Maryland         SAM BROWNBACK, Kansas
    SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
                Bruce A. Cohen, Chief Counsel and Staff Director
          Michael O'Neill, Republican Chief Counsel and Staff Director

                                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
    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

      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 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.
        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.

    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?
        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 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 2\1/2\ 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 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.
        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 drive-throughs 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.
        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.
        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 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.
        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 5\1/2\ 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 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, 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 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 others 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 assailants 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, 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 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.
        [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.
        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?
        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 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 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?
        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 discussed 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 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.
        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 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.

      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 decisions, 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
    Ramos-Compean 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 between 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 re-
    established 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 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 obligation 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.
        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 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 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
    2\1/2\-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.
        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, 2\1/2\-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 immunity 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 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 2\1/2\-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--
        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 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.
        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.''
        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. 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.
        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.
        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.
        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
    enforcement. 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 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.
        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.
        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 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' stories 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.
        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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