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Alleged drug smuggler sues Border Patrol

By Louie Gilot
El Paso Times
Thursday, February 16, 2006

The alleged drug smuggler who was shot in the buttocks by two Border Patrol agents last year is suing the Border Patrol for negligence, possibly undermining his credibility as a witness in the upcoming criminal trial of the agents.

Osvaldo Aldrete Davila filed a claim with the agency - the first step in a lawsuit against the U.S. government - in March 2005, about a month after the shooting occurred.

The claim says the agency was negligent in the shooting and asks for $5 million in damages.

Aldrete's El Paso lawyer, Walter Boyaki, said the damage amount is arbitrary because he hasn't reviewed all the costs the shooting victim incurred, including thousands of dollars in medical bills from Beaumont Army Medical Center that were not paid by the U.S. government.
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Boyaki said he believed a jury would understand why Aldrete, a poor truck driver in Mexico, is suing and not hold it against him as a witness.

"That's a real problem," he said about the credibility issue. "But (filing a claim) is the great American way to level up the playing field. All he gets to do is testify. That doesn't pay his medical bills and restore his job. He's entitled to get compensated."

After being shot in the back Jan. 17, Aldrete continued running into Mexico where he borrowed money from relatives to have a catheter put in to allow him to urinate because his urethra had been shattered, court documents and previous hearings have related.

He did not have enough money to have the bullet removed. U.S. investigators tracked him down and convinced him to return to the United States to receive medical treatment and testify against the agents in exchange for immunity on his alleged drug-smuggling activities and his status as an undocumented immigrant.

U.S. District Judge Kathleen Cardone ruled this week that the immunity agreement could be brought up during questioning.
The claim was brought up during a pre-trial conference Wednesday. Assistant U.S. Attorney Debra Kanof said in a disclosure document that she only learned of the claim this month.

Border Patrol officials said they can't comment on ongoing litigation. Boyaki said the agency will probably wait for the criminal case to be over to decide whether to settle or go to court. A guilty verdict in a criminal case can help win a subsequent civil suit, legal experts say.
Defense attorneys declined to comment.

Jury selection in the case against agents Jose Alonso Compean and Ignacio Ramos starts Friday and the trial is set to begin Tuesday.

Compean and Ramos are accused of shooting Aldrete as he ran away after abandoning a van filled with marijuana near Fabens. They did not report the shooting to their superiors and it was only found out because Aldrete's mother is a friend of the mother-in-law of an Arizona Border Patrol agent.

Louie Gilot may be reached at lgilot@elpasotimes.com, 546-6131