Mexican in Border Patrol Case May Still Face Drug Charges

By Fred Lucas | July 7, 2008 | 8:23 PM EDT

( - The Mexican suspected drug smuggler granted immunity in the controversial - and politically explosive - prosecution of two U.S. Border Patrol agents is not entirely off the hook.

U.S. Attorney Johnny Sutton, the man at the center of the row over the prosecution and jailing of the two agents who shot the illegal immigrant, confirmed to Cybercast News Service Thursday that there is an ongoing investigation into Osvaldo Aldrete-Davila and others.

Aldrete-Davila had been driving a van containing 743 pounds of marijuana on Feb. 17, 2005, the day border agents Ignacio Ramos and Jose Alonso Compean shot and wounded him as he fled on foot toward the Mexican border.

Sutton gave Aldrete-Davila immunity from prosecution in that drug-smuggling case in return for his testimony against the pair.

But amid the political row over the case, one allegation has been widely reported but never established: that Aldrete-Davila had subsequently - in October of that same year - tried to smuggle another 1,000 pounds of marijuana into the United States.

Critics have accused Sutton of being so zealous in the prosecution that he offered the Mexican further immunity for this second alleged offense. Sutton has denied this.

Pressed on the matter Thursday, the U.S. attorney worded his response carefully.

"If an allegation of drug smuggling is made, we're investigating it, and that includes the allegation made in this case," he told Cybercast News Service.

"If we have sufficient evidence to prove a case against a drug smuggler - including Aldrete - we will bring it," Sutton added.

"If there is a provable case against Aldrete, we will bring it as we would any other drug dealer," Sutton added. "He does not have immunity for anything other than his truthful testimony."

However, Sutton insisted Aldrete-Davila was neither arrested nor indicted prior to or after the shooting incident, a statement the Border Patrol agents' union contends is false.

"There was no secondary arrest. There was no secondary indictment," Sutton said of the allegation reported numerous times in the media.

This possible second charge did not pertain directly to the case in which Ramos and Compean were sentenced to 11 and 12 years respectively for shooting at the illegal immigrant.

But the claim inflamed an already outraged public who questioned why a drug dealer would be set free for even one offense while border agents are jailed.

'Sealed indictment'

Members of Congress have called for hearings on Capitol Hill to investigate the case, while the agents' union, the National Border Patrol Council, is calling for a special counsel independent from the Justice Department to investigate Sutton.

Two resolutions were introduced in the House this month - one to vacate the conviction and sentencing of the agents and another calling on President Bush to pardon them.

The National Border Patrol Council insists there was a sealed indictment against Aldrete-Davila for smuggling the 1,000 pounds of marijuana.

Another individual indicted in that drug seizure was called as a witness for the agents' defense but was not allowed to testify because of a sealed indictment and an ongoing investigation, the union says.

The union further contends that U.S. Drug Enforcement Agency officials involved in the seizure of the 1,000 pounds of marijuana were not allowed to testify in this Ramos-Compean case because of an ongoing investigation that could have been compromised.

Given the secrecy and gag orders on the case, Cybercast News Service asked the union about its source for the claims about a second drug offense.

"The agents, before they went to prison," said union President T.J. Bonner. "They felt free to talk without being held in contempt of court, because they were going to jail anyway."

Bonner believes the prosecutor is being disingenuous to claim there was no arrest.

"He's just being very cute," Bonner said. "Because the indictment was expunged, he's pretending it was never there."

Sutton stressed that he was limited as to what he could say regarding any ongoing probe.

"There's an allegation that were discussed at the [Ramos-Compean] trial among lawyers that I can't go into beyond that," Sutton said.

"Lawyers for both the defendant and the prosecution who tried the case and the judge had hearings on those cases and rulings were made," he said.

"All decisions about what evidence comes into court was discussed among the lawyers and the judge, and the judge made the rulings about what evidence comes into court in the trial," Sutton said.

He said the character of the smuggler did not alter the fact that the agents had committed a violent crime.

"All of the discussion of bad acts of the smuggler were litigated at trial to determine what was admissible and what was not," Sutton said.

"He was cross-examined for many hours by defense attorneys. The jury was very clearly aware he was a dope smuggler, an illegal alien and a bad guy that runs from the police. That was all clear at the trial," he said.

See Related Story:
Prosecutor Says Media Coverage Distorted Border Agent Case (Jan. 26, 2007)

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