BORDER AGENTS APPEAL VERDICT

By Jerry Seper and Sara A. Carter - Attorneys for two former U.S.
Border Patrol agents sentenced to lengthy prison terms for shooting a
drug-smuggling suspect in the buttocks as he fled to Mexico will ask a
federal appeals court today to overturn the convictions, saying the
men were the victims of an "overzealous" government
prosecution.

"This case was not only overzealously prosecuted by the government, it
sends a message to every law-enforcement agent that if you shoot in
the line of duty and cannot prove you were justified is using deadly
force ... you will be prosecuted and receive about 10 years
incarceration," attorney David L. Botsford said in a brief filed in
the 5th U.S. Circuit Court of Appeals in New Orleans.

The Austin, Texas-based defense attorney, in the 92-page brief, said
former agents Ignacio Ramos and Jose Alonso Compean were convicted
under a federal statute that was "never intended by Congress to be
used to punish law-enforcement officers who use their weapons in the
line of duty."

Mr. Botsford, who represents Ramos, said his client was denied a fair
trial, adding that the court "should not hesitate to rectify the
tragedy which has fallen upon Ramos in no small part due to
overzealous prosecutors and legal errors of an unprecedented magnitude."

He also argued that Ramos was not given an opportunity to
cross-examine Osvaldo Aldrete-Davila, the drug-smuggling suspect,
about other loads that he might have brought into the country. He said
that because Mr. Aldrete-Davila was given immunity by the government
to testify against the agents, the court erred in allowing him to
assert his Fifth Amendment rights when asked about other loads.

Mr. Aldrete-Davila has since been indicted by a federal grand jury in
El Paso, charged with conspiring to distribute hundreds of pounds of
marijuana into the United States.

Houston defense attorney J. Mark Brewer, who represents Compean, said
in a motion that the government"s indictment against the agents was
"improperly crafted" and misfocused the agents, counsel and jury on a
nonexistent crime of unlawful discharge of a firearm because the
agents were authorized to possess, carry and use a firearm in the
normal course of their job.

Mr. Brewer said that in order to charge a crime under the government"s
10-year mandatory sentence statute, an indictment "must allege that a
defendant either has used or carried a firearm ... during and in
relation to any crime of violence or has possessed a firearm in
furtherance of such a crime."

He said the prosecution "misstated" the crime defined by federal
statute, adding that the U.S. District Court in El Paso, which
sentenced the agents, "erroneously told the jury the federal statute
made it a crime for anyone to discharge a firearm during and in
relation to a crime of violence."

"This is an outrageous case of prosecutorial abuse," said Paul
Kamenar, senior executive counsel for the Washington Legal Foundation,
a watchdog group among eight organizations and persons who have filed
briefs in support of the agents. "The Justice Department filed a dozen
felony charges against two agents trying to do their job."