Fred Lucas | Staff Writer | Tuesday, November 20, 2007
Critics of the prosecution of former border agents Ignacio Ramos and Jose Compean, sentenced to 11 and 12 years respectively, have long asked why the drug smuggler wasn't prosecuted.
The indictment and arrest of Osvaldo Aldrete-Davila last week for smuggling drugs into the country in the fall of 2005 did not alleviate criticism of U.S. Attorney Johnny Sutton of the Western District of Texas. (See Indictment)
Rather, some critics say it affirms their suspicion that Sutton, who prosecuted the border agents and is now prosecuting Aldrete-Davila, delayed bringing charges against Aldrete-Davila because he feared prosecuting him would jeopardize a conviction in the jury trial of Ramos and Compean.
The two agents were convicted for shooting Aldrete-Davila in the buttocks in February 2005 when he tried to evade arrest.
Further, the alleged smuggling occurred after Aldrete-Davila was granted immunity for attempting to smuggle more than 700 pounds of marijuana into the U.S. the day he was shot and also at a time when Aldrete-Davila had a "humanitarian pass" from the government to enter and exit the country unsupervised.
Though Cornyn did not make any specific allegation against Sutton or the Justice Department, he does want the matter explored.
"The recent arrest of Aldrete-Davila raises serious questions about decisions that were made in the trial and incarceration of the two agents," Cornyn told Cybercast News Service. "The attorney general should review the circumstances of this case immediately and forward a recommendation to the president."
Cornyn, a member of the Senate Judiciary Committee, asked during the confirmation hearing of Attorney General Michael Mukasey last month if he would look into the matter after taking office. Mukasey agreed to review it.
In October, several House Republicans wrote to then-nominee Mukasey to investigate the matter.
Because the appeals court case is pending, officials at the U.S. attorney's office declined to comment for this story but referred to Sutton's previous written statement.
"I have repeatedly said that if we obtained sufficient, competent, and admissible evidence against Aldrete, we would prosecute him," Sutton said after the Aldrete-Davila arrest.
"Members of my office have worked closely with agents of the Drug Enforcement Administration for many months to investigate Aldrete's alleged involvement in drug trafficking," Sutton continued.
"As is our practice, we did not publicly discuss our on-going investigations because we did not want public disclosure of the information we had gathered to interfere with the investigation," he added.
The U.S. 5th Circuit Court of Appeals will hear oral arguments on Dec. 3 on the case. The court will have a decision within 60 days of the oral arguments.
"They dragged their heels. That could have been done in 2005," said David Botsford, attorney for Ramos, in an interview referring to Aldrete-Davila's alleged smuggling incident. "I suspect they thought they were going to be hammered at the oral arguments."
Cybercast News Service reported the Drug Enforcement Administration issued a report in late November 2005 that identified Aldrete-Davila as bringing loads of marijuana to a stash house in October of that year.
However, the offense was ruled inadmissible in the trial of Ramos and Compean even though defense attorneys argued it goes to the heart of the credibility of the star witness in the case. (See DEA report)
The stash house owner, Cipriano Ortiz-Hernandez, identified Aldrete-Davila as having a colostomy bag as a result of being shot earlier that year by the border agents.
This is something that should have surfaced during the trial of the border agents, said Andy Ramirez, president of the group Friends of the Border Patrol, which is advocating for the release of Ramos and Compean.
"The government suppressed evidence that was known prior to trial," Ramirez told Cybercast News Service. "Instead, they chose to keep the material sealed. This would have meant there was no credibility for the witness."
In a news release on Jan. 17, 2007, Sutton addressed unconfirmed reports about the October 2005 smuggling.
"Aldrete has not been subsequently arrested for drug smuggling. Our office is in the business of prosecuting drug traffickers and alien smugglers," Sutton said.
"We are on the front lines of this battle and we aggressively prosecute these criminals every day in court. In fact, the western district of Texas leads the nation in the number of individuals we prosecute for illegally smuggling drugs into this country. If we had a provable case against Aldrete, we would prosecute him," he added.
A week after that statement, Sutton confirmed to Cybercast News Service there was an ongoing investigation into a subsequent offense by Aldrete-Davila.
In July, Sutton testified before the Senate Judiciary Committee's hearing into the case, where he was grilled by senators.
During the hearing, Cornyn asked Sutton, "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?"
Sutton answered, "The question -- and again, not to be argumentative -- assumes that Aldrete ran another load of dope in October."
When pressed by Sen. Dianne Feinstein (D-Calif.) to give a yes or no answer to Cornyn's question, Sutton said, "If it turnes 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."
Sutton also said during the Senate testimony, "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."
However, among the six border passes issued, two were granted after the DEA report was issued - one in late October 2005, the other in January 2006. The border crossing passes were obtained by Rep. Dana Rohrabacher's office and made public late July.
Rohrabacher, a California Republican, questioned Sutton's forthrightness at the Senate hearing.
Sutton responded in press accounts that Aldrete-Davila was escorted on those occasions after the DEA report was issued. He repeated that the matter was still under investigation.
In early August, Ortiz-Hernandez -- the stash house owner that identified Aldrete-Davila as a smuggler - pleaded guilty to conspiracy to possess with intent to distribute more than 100 kilograms of marijuana. DEA agents were able to obtain a substantial amount of information just within the last three months that allowed them to build an indictable case against Aldrete-Davila, according to one source.
Then, on Oct. 17, a federal grand jury in El Paso indicted Aldrete-Davila for intent to distribute a controlled substance, conspiracy to import a controlled substance, and conspiracy to possess a controlled substance with intent to distribute.
The indictment was sealed until Nov. 15 when DEA agents arrested Aldrete-Davila at the Ysleta Port of Entry in El Paso.
The U.S. attorney's office declined to comment on any aspect regarding the arrest, including an explanation as to why Aldrete-Davila had crossed into the United States to face arrest.
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