GLENN BECK PROGRAM
GLENN: We also have Congressman Ted Poe. He was a prosecutor and a federal judge. So we're going to get his view of what happened in court yesterday and what it all means. But let me take the case from the beginning and spend just three minutes with Tara Setmayer here and then we'll bring Ted Poe into the conversation. Tara, give me the update on -- take this from the beginning on who this guy is in about three minutes up to the court case. Then we'll bring Ted Poe in and then you can bring is through what happened in the courtroom because you were there with Johnny Sutton yesterday. And we'll get Ted's kind of viewpoint on what you describe as we go along.
SETMAYER: Sure. And thank you for having me on again, Glenn.
SETMAYER: This is such an important issue and the developments are remarkable. The hearing yesterday had nothing to do with the drug smuggler Davila. Yesterday was the oral arguments in the appeals process for agents Ramos and Compean.
GLENN: Oh, my gosh. I'm sorry. Then this is even better. I'm sorry.
SETMAYER: That's okay.
GLENN: I was all discombobulated here.
SETMAYER: That's okay. And how we got to this point, it was everyone was concerned about being overly optimistic and because the appeals process, the judges can be very, you know, straight-faced, poker faced. But yesterday I have to say they were so animated and you could visibly see they were upset about three main issues, and these are the issues that members of congress, Mr. Rohrabacher, my boss, Congressman Poe, Hunter, Tancredo, everything everyone was concerned about was brought to fruition coming out of the mouths of judges and those issues were the application of the 924(c) gun charge.
GLENN: Okay, hang on just a second. Hang on, hang on. If we're going to jump right into it, let me go to Ted Poe and get him on because I want the two of you to be able to discuss these things as I'm not a legal expert by any stretch of the imagination.
So Congressman Poe, how are you, sir?
REPRESENTATIVE POE: Fine. Thank you, Glenn.
GLENN: You were a prosecutor and a federal judge if I'm not mistaken.
REPRESENTATIVE POE: State judge for 22 years.
GLENN: State judge. What I'd like to do is get your viewpoint as Tara lays each one of these points out yesterday, or in a minute, and tells us exactly what the judges said, what the testimony was. I want you to try to, if you can, tell us what you think is going through the minds of these judges, especially if it was you sitting on the panel and hearing these things.
REPRESENTATIVE POE: Okay, sure.
GLENN: Tara, what was the first point?
SETMAYER: The first point was the immunity agreement. They were rather upset about the fact that the drug smuggler was given an immunity agreement that no one seemed to be able to define and the government lawyer even admitted, used the word "Hybrid immunity" which is the same term that the prosecutors used during the trial. It was a weird hybrid immune. Well, that was problematic for these judges because the type of immunity that the drug smuggler was given determined the line of questioning that they were able to ask him or not ask him and whether he was allowed to properly invoke his Fifth Amendment right. And that ultimately led into the second drug load because the judges were concerned that the jury never heard any information at all about the second drug load which took place several months before the trial and while he was under this strange immunity.
GLENN: Right. And it wasn't just a second drug -- there wasn't just a second drug load. There was also a third drug load that we've now found out about.
SETMAYER: Yes. There were multiple smuggling attempts and another load that we know about in September, but that couldn't be discussed because that wasn't discussed during the original trial. But they did ask if Davila had been indicted at this point and the Government had to admit that, yes, he had. And the judges were rather perplexed by the fact that they made such a concerted effort to hide this information and they said that, you know, don't you think that was relevant? And the Government said, well, no, we didn't think it was important. And the judge said, applied common sense for you guys to think that the credibility of this witness was absolutely at the heart of this case. He clearly wasn't a mule. He was a pretty midlevel drug smuggler which means the likelihood of him having a weapon was much greater and you guys knew that, which is why you made sure you kept this from the jury.
GLENN: Congressman Poe, tell me about, if you were a judge, what does it mean, this hybrid immunity and also the prosecution saying, well, no, we didn't think this was important. Tell me as a judge how that would sit with you.
REPRESENTATIVE POE: First of all there's no such thing under the law as hybrid immunity. Either you've got immunity or you don't have immunity and so they are trying to bootstrap a phrase into federal law that does not exist. So that was the first problem with immunity.
The federal government gave the drug dealer immunity from prosecution if he would testify. He did testify, and he told some things obviously that turned out not to be true in the case and so I would be, as a judge, concerned about the immunity agreement and here's the reason. Any time the prosecution makes a deal with a criminal to get certain system; in other words, immunity for testimony, you get the testimony you pay for. And in this case they got the testimony they wanted and they got these two individuals convicted. So immunity deals are always suspect and the jury should know all about the immunity situation and that's why the judges were concerned about first the immunity making the deal with the drug smuggler. And, of course, the second issue is the fact that he was held up to the jury, Davila, as sort of a choirboy. You know, he was just bringing a little drugs to get some money for his sick mother in Mexico. That is not true. And the jury should have known about the other drug smuggling incidences and the reason is because the whole prosecution case was based upon the credibility of their star drug dealer witness, and he was no choirboy. He was an habitual offender of bringing drugs in. So that in a way misled the jury as to who this person was that they made a deal with. So the judges were very concerned about both of those two issues, as they should have been, as any trial would be.
GLENN: Okay, Tara, what was the next thing that came out of the trial yesterday?
SETMAYER: The next thing was the 924(c) gun charge but I want to say one more thing, really important point that came out. While they were questioning the Government on the immunity agreement, one of the judges flat out asked about three times, "Did he violate the terms of his immunity agreement, was that a violation or was it an abuse of the immunity agreement," and the government lawyer, who really tripped over his words, he was being battered so much by the questioning, he finally said, quote: He told some lies. So the government attorney admitted that the drug smuggler, Davila, told some lies during the trial.
GLENN: How significant is that, Ted? Congressman, how significant?
REPRESENTATIVE POE: Any time a witness testifies and lies on the witness stand, that is highly significant. And if the lawyer putting the witness on the witness stand knows that the witness is lying on the witness stand and doesn't bring it to the attention of the Court, that is about the worst thing a lawyer can do. So --
GLENN: And it's illegal, right?
REPRESENTATIVE POE: Of course. It's called in the vernacular suborn perjury. If that witness lies and the lawyer's aware of it and doesn't do something about it, it's unethical and it is illegal. So that was a tremendous blow, I think, to the prosecution. When this lawyer for the U.S. attorney's office admitted, well, you know, the drug dealer did tell some lies, flippant, like it was not anything that was important. It's very disturbing.
GLENN: Okay. Now, we know that now the prosecution has admitted that he told some lies. We know that they knew in advance of the second drug load, which Johnny Sutton said to me, and I know he said to you guys as well, oh, we don't know that; we have no evidence of that; we're still looking into that. We know now that that was a blatant lie to us in the media and you in congress, but then after that second drug run they raised the charges. While this guy's credibility is going down and they know that he's lying, they raise the charges against Compean and Ramos. That is the second thing that they were upset about, right, yesterday, Tara?
SETMAYER: Yes, they were clearly upset about the application of the 924(c) gun charge which was the minimum sentence enhancement that was added on after the initial charges. It's called a superceding indictment. The reason why is because this has huge complications for any law enforcement officer that carries a weapon, and the questions right away, they asked them, do you think that a police officer is always subject to this statute no matter what the circumstances are. And the Government said, well, yes. And that was concerning for the judges because that means that a law enforcement officer who is lawfully permitted to carry a weapon, lawfully permitted to discharge that weapon and can in a reasonable force situation. So one of the judges asked, well, you could have -- this is exactly what he said: There are a number of charges you could have used. Why this one? And they said -- he asked, why did you stack? He used the term "Stack" charges against them. And that's when he went into his, almost a lecture about how if these guys had reported this, do you think the prosecution would have proceeded? And the Government admitted, probably not. And he said, well, you know, they were concerned about that. So basically they're being charged for not reporting, which isn't a crime. That's a procedural violation that could have been handled within the policies of the border patrol.
SETMAYER: And so the implications of a 924(c) gun charge I think is what prompted the judges to say that this got out of hand and that the Government overreacted, which are quotes.
GLENN: We have Tara Setmayer from Congressman Rohrabacher's office. These are the people who have been behind this from the very beginning. Congressman Ted Poe who was a prosecutor and a state judge, who has been leading the charge in congress as well. So congress, let me go to you as a former judge. What would you be thinking if you were sitting on the bench and you heard all of this stuff start to spill out?
REPRESENTATIVE POE: The application of adding the rep charge. As the U.S. attorney said yesterday, they've never done this in a case before. In other words, no law enforcement officer has ever been prosecuted and they had the gun charge application stacked on them to give more time. He said that to the judges yesterday. So it looks like to the observer, common sense observer that there's a vindictiveness by the U.S. attorney against the border agents; and more technically, this does not apply to peace officers. The law was written to apply to a person who commits a federal crime and he uses a gun and that way the person would get more time in prison because a gun was used. Doesn't apply to police officers because the law not only allows them but requires them to carry a firearm while they're on duty and so now they're being punished for doing what they're supposed to do by law. So I think the judges had a real issue here with why the prosecution seemed to be a little vindictive in putting this application on a peace officer where it's never been applied before.
GLENN: Okay, congressman, let me ask you two questions. Then I've got to run because we've got David Botsford on who is the appeals attorney for Compean and Ramos. Let me just get your read here. A, this is as significant as I believe it is right now, yes or no; and B, does this look like this could turn into releasing of Compean and Ramos; and C, do you believe that anything else will happen? Will we go after the people in the system that did this to Compean and Ramos?
REPRESENTATIVE POE: It's highly significant and I hope the judges allow Ramos and Compean to have bail while they're pending their decision. The purpose of bail is to secure a person's appearance in court. And they are not going anywhere. They are not running away. So they should be allowed to have bail based on the hearing yesterday. And the most important thing thirdly, yes, we're going to follow up with the Justice Department hopefully to have aggressive investigations on this whole relentless attitude by the U.S. attorney's office on prosecuting the border agents. So we're not through with this issue yet.
GLENN: I'm glad to hear it. Congressman Ted Poe from Texas, thank you for being with us. Tara Setmayer from Congressman Rohrabacher's office, as always it's good to have you on and we'll follow this in the coming days.