[Congressional Record Volume 154, Number 104 (Monday, June 23, 2008)]
[House]
[Pages H5845-H5846]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
THE PROSECUTION OF FORMER U.S. BORDER PATROL AGENTS
The SPEAKER pro tempore. Under a previous order of the House, the
gentleman from North Carolina (Mr. Jones) is recognized for 5 minutes.
Mr. JONES of North Carolina. Mr. Speaker, as the Members of the House
are aware, in February of 2006, U.S. Border Patrol agents Ramos and
Compean were convicted of shooting and wounding a Mexican drug smuggler
who brought $1 million worth of marijuana across our borders into
Texas. The agents were sentenced to 11 and 12 years in prison and now
have been in Federal prison for 523 days.
Last week I sent a letter, signed by Congressmen Ted Poe, Dana
Rohrabacher, Virgil Goode, Louie Gohmert, John Culberson, and Don
Manzullo, to ask the U.S. Department of Justice Office of Professional
Responsibility to investigate the actions of U.S. Attorney Johnny
Sutton in this case.
{time} 1930
One of the main reasons for this request stems from the firearm
charge used by his office in prosecuting the agents. This charge
carried a 10-year minimum sentence. Without this charge, one of the
agents, Agent Ramos, would have already completed his sentence and
would be out of prison and with his family today.
The office of U.S. Attorney Johnny Sutton charged the agents with the
discharge of a firearm during a crime of violence. Yet, there is no
such crime. The law makes it a crime to use or carry or possess a
firearm in relation to any crime of violence. The Supreme Court ruled
last year in United States vs. Watson that discharge of a firearm is
only a sentencing factor for a judge to consider at the conviction, not
for the jury to determine if a crime occurred. However, you can imagine
how difficult it would be to convince a jury that two Border Patrol
agents, law enforcement officers, were unlawfully using, carrying, or
possessing their firearms.
When you look at the history of why Congress enacted this statute,
one reason stands out: To warn criminals to think twice before they
stick a gun in their pocket on the way to the scene of a crime. This is
the reason the statute clearly does not apply, does not apply to law
enforcement officers like Ramos and Compean. These men were not
carrying guns so they could commit a crime, they were required to carry
guns as part of their job.
By focusing the jurors' attention on this nonexistent crime of
discharging a firearm, there is reason to believe that Johnny Sutton
intentionally manipulated the Federal criminal code to obtain a
conviction against these two Border Patrol agents at all costs.
The American people must be confident that prosecutors will not
tailor the law to make it easier to secure a conviction in a particular
case. Federal prosecutors take an oath to enforce the law, not to make
it.
I want the families of Ramos and Compean to know that my colleagues
and I will continue to bring this injustice to the attention of the
American people and to the White House.
I am most grateful, I am most grateful to Chairman John Conyers and
his staff for their interest in investigating the prosecution in this
case. I hope that the House Judiciary Committee will soon hold a
hearing on this injustice, and I am also hopeful that the Department of
Justice will take this matter seriously and will investigate Mr.
Sutton's conduct in this case.
Mr. Speaker, before closing, I want the family, again, of Border
Patrol Agents Ramos and Compean, that those of us in Congress on both
sides of the aisle, we care about their families, we care about these
Border Agents, and never, under any circumstances, should they have
been indicted and prosecuted.
I want to thank Chairman John Conyers for holding hearings on this
matter.
[[Page H5846]]
Congress of the United States,
Washington, DC, June 18, 2008.
Re Complaint for Prosecutorial Misconduct Against Johnny
Sutton, United States Attorney, Western District of Texas
H. Marshall Jarrett,
Counsel, Office of Professional Responsibility
United States Department of Justice, Washington, DC.
Dear Counsel Jarrett: As Members of Congress, we write this
letter to bring to your attention for investigation what we
have concluded to be a serious miscarriage of justice by
United States Attorney Johnny Sutton. Mr. Sutton supervised,
and has vigorously defended, his office's actions in a case
wherein two United States Border Patrol agents--Ignacio Ramos
and Jose Alonso Compean--have been convicted, and each are
now being punished by imprisonment of 10 years, for a crime
that does not exist, and therefore, for a crime that could
not have been committed.
Specifically, Mr. Ramos and Mr. Compean were charged with
violating 18 United States Code Section 924(c)(1)(A) by the
``knowing[] discharge[] [of] a firearm . . . during and in
relation to a crime of violence.'' (Emphasis added). There
is, however, no such crime. Rather, Section 924(c)(1)(A)
makes it a crime to ``use or carry . . . during and in
relation to any crime of violence'' or to ``possess a
firearm'' ``in furtherance of'' any such crime. And, as the
United States Supreme Court recently pointed out,
``discharge'' is only a sentencing factor to be considered by
the judge after conviction, not by the jury in the effort to
determine whether the law has been violated. United States v.
Watson, 169 L.Ed.2d 472 (2007).
While this distinction might, at first glance, be merely
technical, the United States. Court of Appeals for the Fifth
Circuit, the circuit in which Mr. Ramos and Mr. Compean were
convicted, ruled that an indictment that did not allege that
a defendant had so used or carried, or so possessed, a
firearm was insufficient to charge an offense under Section
924(c)(1)(A). See United States v. McGilberry, 480 F.3d 326,
329 (5th Cir. 2007). Indeed, six years before McGilberry, the
Fifth Circuit, ruled that ``discharging a firearm during and
in relation to a crime of violence'' was not an ``actus
reus'' element of the offense defined by 18 U.S.C. Section
924(c)(1)(A), but only a factor to be considered at
``sentencing'' after conviction.'' See United States v.
Barton, 257 F.3d 433, 441-43 (5th Cir. 2001). And one year
after Barton (and five years before Watson), the United
States Supreme Court agreed, ruling that Section 924(c)(1)(A)
did not define ``discharge'' of a firearm as a separate
offense, but only as a ``sentencing factor[] to be considered
by the trial judge after conviction.'' See Harris v. United
States, 536 U.S. 545, 550-53 (2002).
Notwithstanding these binding precedents in the Western
District of Texas, United States Attorney Sutton secured an
indictment charging Mr. Ramos and Mr. Compean with the non-
existent crime of ``discharging'' a firearm ``in relation to
a crime of violence.'' By this charge Mr. Sutton facilitated
the conviction of the two border control agents by means of
jury instructions that focused the jury's attention upon the
``discharge'' of the agents' firearms, rather than upon
the lawfulness of the possession, carrying, and use of
such firearms in the ordinary course of their employment.
Moreover, by this indictment and these instructions, Mr.
Sutton obtained a conviction of an offense that carried a
minimum 10-year sentence, as provided by the statute,
rather than the lesser sentence for violation of Border
Patrol rules and regulations. See also, Brief Amici Curiae
of Congressman Walter B. Jones, Gun Owners Foundation,
United States Border Control Foundation, United States
Border Control, and Conservative Legal Defense and
Education Fund, Inc., In Support of Appellants, United
States of America v. Jose Alonso Compean and Ignacio
Ramos, No. 06-51489, U.S. Court of Appeals, Fifth Circuit
(May 27, 2007).
It is our firm conviction that, by these actions, Mr.
Sutton is guilty of prosecutorial misconduct, the effect of
which has imposed an irreversible and substantial effect upon
Mr. Ramos and Mr. Compean and their families. Prior to the
return of the indictment against Mr. Ramos and Mr. Compean,
Mr. Sutton must have known that it was impossible for there
to be probable cause for a ``crime'' never enacted by
Congress, as authoritatively and previously decided by the
United States Supreme Court and the United States Court of
Appeals for the Fifth Circuit. According to Rule 3.09 of the
Texas Disciplinary Rules of Professional Conduct, a
prosecuting attorney is to ``refrain from prosecuting . . . a
charge that the prosecutor knows is not supported by probable
cause.''
Indeed, the Comments to Rule 3.09 of the Texas Rules of
Professional Conduct admonish prosecutors to remember their
``responsibility to see that justice is done, and not simply
be an advocate.''
On April 1, 1940, then Attorney General Robert Jackson,
speaking to United States Attorneys serving in each federal
judicial district across the country, reminded them why
justice should be their goal, not winning their cases. ``The
prosecutor,'' he said, ``has more control over the life,
liberty, and reputation than any other person in America. His
discretion is tremendous . . . We must bear in mind that we
are concerned solely with the prosecution of acts which the
Congress has made federal offenses.''
Mr. Sutton has manipulated the federal criminal code to
obtain a conviction against two U.S. Border Patrol agents,
preferring to win at all costs over his duty as a United
States Attorney, and his duty under the Texas Rules of
Professional Conduct. This is a matter which your office has
a duty to investigate and, on the basis of what we now know,
to remedy.
Sincerely yours,
Walter Jones,
Ted Poe,
Virgil Goode,
Dana Rohrabacher,
Louie Gohmert,
John Culberson,
Donald A. Manzullo,
Members of Congress.
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