[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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