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.
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 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.
