Countdown to Graham losing his SC Senate seat: 16 months

Exit Question: Should we now be referring to Lindsey Graham as a bigot, as he did to everyone that opposed shamnesty?

RAMOS & COMPEAN

Legal Brief Says Border Agents Were Charged With ‘Non-Existent Crime’
By Matt Purple
CNSNews.com Correspondent
July 26, 2007

(CNSNews.com) – Two Border Patrol agents whose prosecution and sentences to lengthy prison terms triggered a political storm this year may have been charged with a “non-existent crime,” according to a legal brief submitted to a federal appeals court in May, and obtained by Cybercast News Service.

Ignacio Ramos and Jose Compean are serving 11- and 12-year sentences respectively for shooting and wounding a Mexican national who was trying to escape after attempting to smuggle 743 pounds of marijuana across the Mexico-Texas border in February 2005.

Although they were convicted on 11 counts, the crime carrying the lengthiest penalty was for the “discharge of a firearm in relation to a crime of violence,” a violation of section 924(c)(1)(a) of the U.S. Code. It carries a minimum 10-year prison sentence.

Cybercast News Service obtained a copy of an amicus curiae (”friend of the court”) legal brief filed by Reps. Walter Jones (R-N.C.), Virgil Goode (R-Va.), and Ted Poe (R-Texas) in the former agents’ appeal before the Fifth Circuit Court in New Orleans.

They accuse the prosecution of “creating a purported criminal offense never enacted into law by Congress,” and of charging Ramos and Compean with a “non-existent crime.”

Simply discharging a firearm near a violent crime is not illegal, the brief argued, saying the law they were convicted under is not a law at all, but a sentencing factor used to help a jury determine jail time after a conviction.

The brief cited several cases as precedent, including United States v. Barton in which the Fifth Circuit Court ruled that “discharging a firearm during and in relation to a crime of violence” could be used only as a sentencing factor, not as an element of a conviction. In Harris v. United States, the Supreme Court made a similar ruling.

The brief argued that, for a 10-year sentence, a defendant must be convicted under the specific terms laid out in section 924(c)(1)(a) (see section).

This provision is applicable, the section says, to “any person who, during and in relation to any crime of violence or drug trafficking crime … uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm …” If, and only if, these conditions apply can a defendant be sentenced to ten years in prison for the “discharge” of a firearm.

The brief argued that the shooting of drug smuggler Osvaldo Aldrete-Davila was not “in relation to” the drug crime because Ramos and Compean were themselves not participants in the drug crime.

Furthermore, Border Patrol Agents are authorized to carry and use firearms as law enforcement officers.

“By narrowing the issue to the discharge of the firearm,” the brief said, “the prosecution and the trial court actions adversely affected the fairness of the entire trial, depriving defendants of any opportunity to present to the jury that they were using and carrying their firearms during and in relation to their employment as Border Agents.”

The brief also criticized the prosecution.

“The criminal code cannot be treated by the prosecution as a legal chameleon, changing elements to fit the circumstances of the case that the government, in its discretion, wants to present to the judge and jury,” it said.

One of the brief’s authors, Larry Pratt of Gun Owners for America, told Cybercast News Service that this case could set an alarming precedent under which any law enforcement officer who fired a gun at the scene of a drug crime could be prosecuted under Section 924(c).

He also criticized U.S. Attorney Johnny Sutton, the lead prosecutor in the case.

“What [Sutton] was apparently trying to do is avoid the little detail that there was no underlying crime of carrying a gun because [Ramos and Compean] were authorized to carry guns,” Pratt said. “So I think he tried to slide around and use the sentencing provision as an underlying crime.”

‘Perverse’

Rep. Jones conceded in a statement that Ramos and Compean may have been guilty of violating Border Patrol policy by shooting Aldrete-Davila and failing to file a subsequent report.

But Jones also blasted Sutton, saying the prosecutor “had no business charging [Ramos and Compean] with a crime that Congress clearly designed to apply only to the individuals who are possessing, using, or carrying firearms for the purpose of facilitating the commission of a crime – not to federal law enforcement agents.”

“How perverse it is that this statute is now being used against law enforcement officers who were trying to stop drug trafficking,” he added.

Sutton told the Senate Judiciary Committee on July 17 that it was his trial team that made the decision to bring the “discharge of a firearm in relation to a crime of violence” charge, and that he was not consulted on the issue.

“We have a deliberative process that goes on inside our office that I cannot describe,” he said.

Sutton could not be reached for comment, and his spokeswoman said she did not think anyone else in the office would comment on the brief until it responds to the appeal in early August.

Asked about the appeal, Pratt said he was worried that it may be denied because the cited evidence had not been presented previously.

“The thing that concerns me most is that, because [the alleged misuse of Section 924(c)] wasn’t brought up at the first trial, the Fifth Circuit Court could play legal games and say, well, too bad,” he said.

Still, Pratt described himself as “hopeful” and warned that Sutton’s tactics would eventually catch up with him.

“[Sutton] can only hide in the tall grass for so long and, Lord willing, the lawnmower’s on the way in,” he said

Just found out the Dems relented over the bill. Just heard on the DMZ.

I used to think he was a reasonable man and good conservative with good common sense. He came from the house which seems more his style.

But when he called people who disagreed with him ‘bigots’, it was crazy. Graham is USUALLY on the right side of issues. This one was an anomoly. I’ve agreed with him so much on so many other issues I can’t throw him out just yet.
thinking on this last amnesty bill.

ThackerAgency on July 25, 2007 at 11:38 PM

When Graham-amnesty and John Kyl of AZ both changed their votes midway in order to refect Ted Kennedy’s liberal position, that changed everything for me. That said a lot about those 2 “conservative Senators.” When he called us “bigots” for wanting secure borders, that changed everything for me.

I ask people, “what was Graham really proposing when he sponsored the recent shamnesty bill?.”

—border enforcement with 350 miles of secure fence???

REALITY CHECK:

It was already a law that stipulated 700 miles to be built. Graham-amnesty actually wanted us to go BACKWARDS not forward, on the very issue of border enforcement.

—employer checks, employer verification???

REALITY CHECK:

My understanding is that it is already ***against the law*** to knowingly hire illegal aliens. We need to start enforcing the laws against bad employers.

So what was Graham-amnesty, John Kyl of Arizona, Mel Martinez, McCain, Ted Kennedy, Hagel of Nebraska, and the Democrat Party really wanting?

Rewarding law-breakers with amnesty (”path to USA citizenship”). That was their real goal. Despite the fact, that amnesty has been given to law-breakers 7 times since 1986. This is what Graham-amnesty really wanted.

And that is why conservatives will always doubt Graham-amnesty.

Q. What’s the difference between Graham and a lightbulb?

A. You can unscrew a lightbulb.

Tennman on July 25, 2007 at 7:43 PM

A2. A lightbulb can’t screw you.

A3. A lightbulb is bright.

A4. You can get rid of a bad lightbulb without having to
vote.

I am happy that he changed to the correct side (for the moment, at least) but he cannot be trusted at all. he’s shown that he’s the kind of guy who would kill his own bill if he thought it would buy him something else, since we all know that he doesn’t really want to secure the border.

I used to like him, too. But, I started drifting away after he started spouting his moronic theories about interrogation and other points of lawyers handling war.

If Lindsey were serious about this bill, he would have distanced himself from the surrender legislation. So … I’m glad he’s proposing security-first, but I wouldn’t let the little weasel out of my sight for a second, and I would NOT turn my back on him, ever – or go to sleep while he’s around. I trust the French more than Graham.

I just want to add that any complaints about enforcement (or the lack, thereof) should be directed where it belongs, on Bush. The Congress has no role in enforcement. Any problems in that area are the sole responsibility of the Executive.

This point about Bush’s veto threat (?) really steams me. I mean … just unreal.

And he’s still actually leading on the war. He demonstrates admirable good sense on that.

Unlike Hagel.

But when he called people who disagreed with him ‘bigots’, it was crazy. Graham is USUALLY on the right side of issues. This one was an anomoly. I’ve agreed with him so much on so many other issues I can’t throw him out just yet.

I’m glad he lost on this one, he seems to be saying the right things now about security. Like I said, it was just strange to see him during that debate act like he did.

I usually agree with him on everything. Had it not been for his behavior on the last bill, I’d have said, ’see listen to this guy, he’s right on track’ with this interview. That has been the impression I have gotten of him in history. He has a good record. I don’t know where he was or what he was thinking on this last amnesty bill.

“Our efforts to secure the borders have been miserable failures because we’ve got 12 million people here illegally.”

That’s how a senator talks when he realizes the electorate knows he talks out his a$$.

Does this make graham a bigot?

Bigot = One who is strongly partial to one’s own group, religion, race, or politics and is intolerant of those who differ.

That does not describe Graham.

He was against it before he was for it.

He incorrectly called me a bigot before he agreed with me.

I guess he is a flip-flopper.

Here’s my simple and cost effective plan:
1. Electric fence
2. A few sensors
3. Signs posted warning about death by electrocution
4. Signs posted warning about being shot on sight at any attempts to dismantle sensors or cut down fence.
5. A few armed border patrol agents.

End of discussion.

Oh wait I am all confused.

Wait a minute: The guy is RIGHT on this issue (for a change), so why are so many of you viciously dunning him? Look: No one hated Graham more than I did about one month ago, but we WON that particular skirmish, and he got his knicker ripped. He is now doing good (for a change) and I am not about to criticize him for that! (And that is not saying you shouldn’t back another candidate in the primary, either.) Just give the guy credit where credit is due, okay?

sanantonian on July 25, 2007 at 8:13 PM

Simple. We don’t trust his sincerity.

I’ll give credit to those who were sincere about border security all along, and particularly when they were being portrayed as bigots by people like Graham in the midst of a political fight.

On the other hand, I won’t give credit at all to someone who didn’t give a crap about border security at all a month ago only to change his tune now that his poll numbers and fundraising numbers are in the toilet.

With drones guarding the border I guess we’ll have a lot of vids of millions more invading our country. Must Si TV.