[Congressional Record (Bound Edition), Volume 154 (2008), Part 10]
[House]
[Pages 13382-13383]
[From the U.S. 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

[[Page 13383]]

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.


                                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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