| At about 4 a.m., on April 5, 2000, 27-year-old Border Patrol Agent David Sipe and three other border patrol agents were alerted that a U.S. border sensor alarm had been triggered near Penitas, Texas. As the agents headed to the area, a second sensor alarm went off, triggered by a group of 12 to 15 aliens attempting to move through the area. One of those aliens was Jose Guevara.
Because it was still dark, the agents, following standard practice, turned their large hand-held flashlights on the aliens while shouting commands in Spanish to stop and surrender. The aliens initially ran, but then most of them stopped and waited to be arrested. Guevara and two others, Nehemias Diaz and Evarado Sanchez, fled in an area of heavy reeds that were taller than the men.
Guevara later claimed that he was crouching in the weeds when Sipe found him and struck him in the back of the head with his flashlight. Sipe reported that he used force to subdue Guevara to prevent him from taking his weapon.
On November 24, 2000, a federal grand jury indicted Sipe was indicted on one count of violating Guevara’s civil rights through the use of excessive force.
Before trial, Guevara’s defense lawyer filed motions asking the prosecution for exculpatory and mitigating evidence, including the criminal records of any witnesses and any benefits given to the aliens. The prosecution turned over some information including the grand jury testimony of Christopher Cruce, one of the other border patrol agents on the scene that night. The prosecution said it was unaware of any criminal convictions of any of its witnesses.
The prosecution reported that Guevara, Diaz and Sanchez would be testifying that they had been allowed to remain in the U.S. and get jobs, but had received no other benefits.
On March 19, 2001, Sipe went to trial in U.S. District Court in McAllen, Texas. Guevara and two other illegal aliens who were captured with him that night testified that the force was unprovoked. Guevara told the jury that Sipe struck him with his flashlight on the back of the head. He testified that he did not resist or yell out and that he needed stitches to close the wound to his scalp.
Sanchez testified that he saw Guevara squatting alone and motionless just before Sipe struck Guevara at least twice with a flashlight and that Guevara was bleeding after the blows. Diaz, who was slightly farther away from Sanchez, claimed he saw Sipe swing his flashlight three times, striking something in the reeds.
Agent Cruce testified that he headed into the brush to assist Sipe and when he got to a few feet from Sipe, he saw Sipe on top of Guevara, who was lying on the ground face down and was not struggling.
Cruce testified that he heard movement in the brush nearby and, suspecting more aliens were hiding there, called out for them to stand up. Sanchez and Diaz then surrendered. Sipe then offered to escort Sanchez and Diaz to the agents’ van, saying nothing about any injury to Guevara, Cruce testified.
When Sipe left, Cruce and another agent, James Smith found Guevara kneeling, holding the back of his head with his right hand. He was bleeding from a cut in his scalp. Guevara appeared to have the dry heaves.
Cruce testified that he yelled for Sipe to return to the area. When Sipe returned he did not appear to be aware that Guevara was injured. Sipe told Cruce and Smith that he hit Guevara's leg with his flashlight because Guevara was running away from him, and that he used force to protect himself from a possible assault with a knife or other weapon when Guevara resisted.
Agent Smith testified that when they were in the reeds searching for aliens, he heard Sipe say words like “is that enough” or “have you had enough.”
According to the testimony of another agent who was assigned the work with Sipe the next day, Sipe said that he had hit an alien the night before to slow him down, striking him in the head with his flashlight to slow him down. Sipe said that when he was on the alien’s back, he hit him again because the alien was resisting. The agent said Sipe did not understand why he was under investigation.
Cruce, Smith and two other agents testified that they rarely needed to use “intermediate force” to subdue an alien and that all agents were trained not to strike a person’s face or head unless deadly force was required.
On March 27, the jury convicted Sipe of using excessive force. Prior to sentencing, Sipe’s attorney, Jack Lamar Wolfe, learned that the prosecution had not disclosed a statement by Cruce that he did not like Sipe—which contradicted Cruce’s grand jury and trial testimony. When he requested the statement, the prosecution disclosed a memo prepared prior to trial that said, “Cruce admits to disliking the subject (Sipe) even before this incident. Cruce said that (Sipe) has an abrasive personality, keeps to himself, and is generally disliked by most of the other agents.”
At that point, Wolfe demanded and was granted access to the prosecution’s entire investigative file. He discovered a trove of evidence that had not been disclosed. It included that the prosecution had several photographs of the arrest scene with Guevara posing to demonstrate where he was located in the reeds when Sipe struck him. The photos suggested that it was virtually impossible for Sanchez and Diaz to have seen the incident.
The file showed that another prosecution witness had been charged in the past with filing a false police report, theft and harassment, although none resulted in convictions. The prosecution also had failed to disclose an interview with a potential witness who said that Sipe was a "nice person" and had never made statements suggesting that he disliked or disrespected aliens.
The defense also discovered that the prosecution had failed to disclose that the aliens received numerous undisclosed benefits, including Social Security cards, witness and travel fees and they been allowed to travel to and from Mexico to visit family members. They also had been allowed travel to and from North Carolina to work and to use government phones to contact relatives in Mexico.
The defense also discovered that Sanchez and Diaz had been living with Guevara and his wife during the months before trial, although they had testified at trial that they did not know Guevara before the border crossing. That testimony had supported the prosecution’s contention that Guevara was an illiterate who was crossing in search of work and met up with Sanchez and Diaz by chance.
The defense had contended that Guevara was not a migrant worker but a "coyote," a transporter of illegal aliens who was engaged in leading Sanchez, Diaz, and others across the border.
The defense also discovered that after the night of the incident and prior to the trial, Border Patrol agents had intercepted Guevara a second time. He was with other illegal aliens. However, after he displayed a card given to him by prosecutors, Guevara had been released.
The defense then filed a motion for a new trial. On April 11, 2003, following a hearing, U.S. District Judge Ricardo Hinojosa vacated Sipe’s conviction and ordered a new trial.
The prosecution appealed, but in October 2004, the Fifth Circuit U.S. Court of Appeals upheld Judge Hinojosa’s ruling.
In January 2007, Sipe went to trial a second time. On January 26, 2007, the jury acquitted him. In June 2007, Sipe reinstated as a Border Patrol Agent with back pay.
– Maurice Possley
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