Lawmakers Probe Prosecution of Border Agents Who Shot Mexican Drug Runner

Pressure is growing on Capitol Hill to investigate the prosecution of two former Border Patrol agents doing prison time for their on-duty shooting of a Mexican man who was transporting drugs into the United States.

Jose Compean and Ignacio Ramos are serving 12 and 11 years, respectively, for the non-fatal shooting in 2005 of Osvaldo Aldrete Davila. The agents shot Davila in the buttocks as he was transporting more than 700 pounds of marijuana into the United States through Fabens, Texas.

Davila was given immunity in exchange for his testimony against the agents.

Now the House Foreign Affairs Subcommittee on International Organizations, Human Rights and Oversight is organizing a hearing on any influence the Mexican government may have had on prosecuting Compean and Ramos.

Rep. Bill Delahunt, the Massachusetts Democrat who chairs the House Foreign Affairs subcommittee, said a formal invitation to testify will be also be sent to U.S. prosecutor Johnny Sutton "so there will be no confusion as to whether he’s available or whether he’s willing to appear."

TOMORROW: Exclusive FOX News interview with U.S. Attorney Johnny Sutton.

California Rep. Dana Rohrabacher, the ranking Republican on the subcommittee who requested the hearing, is asking for information from the State and Homeland Security departments about possible contact the Mexican government made with the U.S. government about the case.

Rohrabacher’s office has been trying to get information from the Justice and Homeland Security departments about Davila’s border crossing and parole documents to determine whether he delivered another load of marijuana in Texas in October 2005, after he entered the U.S. to have surgery by U.S. Army doctors to remove the bullet; his urethra was shattered during the shooting.

"We’ve been stonewalled unbelievably," said Rohrabacher spokeswoman Tara Setmayer, particularly about her office’s request for correspondence from the agency investigator in the case and for details of Davila’s immunity agreement.

"It’s absurd … they claim the reason for the denial of that information is because of the privacy act. They require a privacy waiver to be signed by the drug smuggler before they can release that information.

"We want to find out what type of access he had to the country and if it was unfettered access, why would our government grant him such a privilege and also, because of the second drug bust, the relationship between that second drug bust and the dates he was supposed to have surgery in Texas."

Documents prepared by the U.S. Drug Enforcement Administration and obtained by show that on Oct. 22, 2005, Davila was identified by a witness as the driver of a 1990 Chevy Astro van that contained six bundles — approximately 752.8 pounds — of marijuana. He allegedly dropped off the load around 3 p.m. at the home of a man in Clint, Texas, in what's known as the "October load." The man described the van’s driver to DEA investigators, saying he was a "Mexican male, 5’10", dark skin, 20-30 years of age, short hair, and has a colostomy bag," according to the DEA documents.

The property owner, Cipriano Ortiz, was arrested on March 13, 2007, and indicted by Sutton's office March 28 for having and intending to distribute over 1,000 kilograms of marijuana. He is being held without bond.

Sutton, U.S. Attorney for the Western District of Texas, left open the door of possibility that charges could still come from that incident.

"The bottom line is, we are still arresting people out of that event," Sutton told "We’ve arrested a number of suspects out of that investigation and the investigation is ongoing."

As for Davila, Sutton said: "As soon as we have sufficient, competent admissible evidence to charge him with a crime, we will do it."

Justice Department spokeswoman Kimberly Smith said her department is "committed to working with Congress to answer questions and educate the public on the facts of the Ramos/Compean prosecution and has provided numerous documents explaining the court record and facts of the case to members of Congress," including statements, transcripts and other information.

"We will continue to provide materials and answer questions pursuant to Department of Justice regulations and guidelines," she added.

But Delahunt told "We continue to have difficulty in terms of ascertaining a date and there has been some indication that since there’s an appeal, there was hesitation on having him testify."

Delahunt said he also met with the Mexican ambassador privately to discuss the matter, but foreign officials are prevented by protocol and the practices of the Mexican government from testifying to the U.S. Congress. As a matter of course, the congressman added, "We do not have foreign government representatives at hearings."

"I’ve met with the Mexican ambassador. I’ve indicated to other members, including Mr. Rohrabacher, that the Mexican ambassador would be willing to meet with him and other members of Congress privately and we’re making an effort to arrange that," Delahunt said.

As for his invitation, Sutton said he has not yet been formally asked to appear.

"I’m absolutely willing to testify before Congress and cooperate in any way with any congressional hearings or invest, subject of course, to Department of Justice regulations, rules and policy," Sutton said, adding that he would not be allowed to talk about anything that could jeopardize pending cases. "But we also need to do the people’s business and investigate crimes and prosecute criminals."

The department "will carefully consider any invitation for witnesses should Congress choose to hold hearings," Smith added.

Smith said both Sutton and Justice officials "have actively sought to educate members of Congress and the American public about the facts of the Ramos/Compean prosecution."

In a separate incident, the Mexican consulate sent a letter to Edwards County Sheriff Don Letsinger in Texas, and the FBI, pushing for Deputy Gilmer Hernandez to be prosecuted.

On April 14, 2005, Hernandez shot at an SUV full of illegal immigrants in Rocksprings as it sped off while he tried to stop it for running a red light. One of the bullets shattered the teeth of a woman inside the SUV. Hernandez reported the incident, was jailed for 266 days, and the immigrants now may be suing the U.S. government.

"Based on the Consular Convention between Mexico and the United States and the Vienna Convention on Consular Relations, the Consulate of Mexico is entitled to represent, protect and defend the rights of Mexican nationals in this country," the Mexican consul wrote to Letsinger, Hernandez’s boss, in a letter obtained by "That is the care of my country that this kind of incidents against our nationals, do not remain unpunished."

Sutton prosecuted that case as well.

Does the Punishment Fit the Crime?

The House Judiciary Committee also may take up the issue of federal statute known as "924c" in light of recent cases involving law enforcement on the border. It’s that statute that called for 10-year sentences for Compean and Ramos for shooting at someone who was running away.

The section of the U.S. Criminal Code says "during and in relation to any crime of violence or drug trafficking crime," any person who uses or carries a firearm should be sentenced to no less than 10 years in prison if a gun is discharged. The law, however, does not make any allowance for law enforcement.

North Carolina Rep. Walter Jones wrote Attorney General Alberto Gonzales in October 2006 asking that Compean and Ramos not be subjected to any misapplication of the law.

"When §924(c) is applied to law enforcement officers, it is in the context of heinous crimes, such as sexual assaults, which are clearly outside the realm of official duties. The application of §924(c) in this case is overly broad, setting a dangerous precedent of application to law enforcement officers trying to act within the scope of their official duties,” the letter states.

"This is an issue that both the majority and the minority want to address and we expect a hearing to be scheduled," said Texas Rep. Lamar Smith, the ranking Republican on the House Judiciary Committee.

On the Senate side, Sen. Dianne Feinstein, the California Democrat who chairs the Senate Judiciary Terrorism, Technology and Homeland Security subcommittee, is also looking into how Compean and Ramos were prosecuted.

"This is something Senator Feinstein has been very interested in, she has expressed interested in holding a hearing," said her spokesman, Scott Gerber. The length of the ex-agents’ sentences and "whether they’re appropriate is a significant policy question she’d be interested in looking into," he added.

Meanwhile, a House bill sponsored by Rep. Duncan Hunter, R-Calif., to pardon Compean and Ramos includes a provision that requires DHS to revisit engagement policies on the border — policies that even Sutton has called harsh.

"Mr. Hunter, he was worried not only for the safety of the agents but the effect this particular conviction would have on the morale and future efforts of the U.S. Border Patrol," said Hunter spokesman Joe Kasper. "These are two law enforcement officials who are empowered as law enforcement officials to enforce our nation’s laws … these two agents were given the equivalent of murder sentences arguably, arguably … the facts of these cases do not merit 11 and 12-year prison sentences."

Those who have rallied around Compean and Ramos worry that their case could set a disturbing precedent for how Border Patrol agents are prosecuted for on-the-job shootings and other violence, particularly at a time when there is so much pressure to strengthen border security as part of a broader immigration reform debate.

But Sutton, as well as officials at the Border Patrol and Justice Department, point out that the case was decided by a jury and there is more to the story than what’s being told.

"There’s just an extensive misrepresentation of the facts," Sutton said. "I’d be outraged, too, if it was just two Border Patrol agents doing their job ... they don’t tell you these guys shot 15 times at a guy running away, covered up a crime scene and filed false reports.

"If I had five minutes to tell the real facts, most people say ‘oh, that’s different’ … we can’t have federal agents shooting people and covering it up."