The Rio Grande Sniper with author & Judge John W. Primomo Part 2

Part 2

Benjamin Morris (35:22):

So, one of the aspects of the storytelling here which just comes right to the fore, is that feeling of

kind of the walls closing in, the pressure that's on Jimmy from different sides, and you really kind of

portray his predicament in such vivid terms.

Benjamin Morris (35:41):

He may well flip, we don't know. He doesn't know, Pierce doesn't know, the other conspirators don't

know. He's such a wild card in this moment. But of course, the stakes get a little higher when

Rummell and Esky realize that they just can't take that chance. Can they? They have to silence him.

John (36:08):

They are very nervous. They start following his case and Burris's case very early on. From the

moment that they get arrested, they start talking to each other. Rummell and Esky start asking each

other whether or not are they gonna cooperate. “Is there anything we can do?”

John (36:30):

Both of them are very nervous. They don't want to be identified and they certainly don't want to go

back to prison. And once Burris and Jimmy are convicted and they get summoned before the grand

jury, their fears intensify.

John (36:48):

And they know that Jimmy and Burris have initially refused to appear before the grand jury, but then

a federal judge holds them in contempt because they have no defense for refusing to testify. And

they go to jail, and they're gonna be held in contempt and remain in jail until they purge themselves

of contempt by appearing before the grand jury.

John (37:14):

And their time in jail only lasts about three weeks before both of them decide that, "Enough of this,

we're gonna go ahead and talk to the federal grand jury and provide the information that Pierce

wants."

John (37:32):

And once that happens and a grand jury date is set, then Rummell and Esky both know that they

have to test — that they're gonna have to do something. They're gonna either have to bribe them or

they're going to have to do something about them.

John (37:50):

And Burris who's known Rummell a long time, assures his friend that no matter what he's told

Pierce, he's not going to divulge any information. He's not going to testify into the grand jury, but

nobody knows what Jimmy's going to do. So, he becomes the center of their concern.

Benjamin Morris (38:14):

At first, it's interesting you write that when their concern grows uncontainable, they actually try to

silence Jimmy themselves. But you have this wonderful phrase in the book where you say, (and I'm

just gonna give a direct quote here) quote, "They have no clue what they are doing."

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Benjamin Morris (38:40):

And it was kind of like the opposite of Keystone Cops. It was kind of like keystone crooks here, who

just, they take a pot shot at his car, but they miss and they miss disastrously, and it is so funny.

Benjamin Morris (38:55):

Help us to see that. Help us to understand why do they have no idea what they're doing when

they're trying to get rid of this guy?

John (39:03):

Well, both Rummell and Esky are criminals when it comes to drug involvement, but that neither one

of them has been involved in any kind of violent crimes. I think that Esky has told Rummell that he

has done violent things before, but I don't think even Rummell believes him. And I think he probably

talked big when it came to his violent history.

John (39:31):

And when you're talking about doing what they're doing and trying to actually eliminate Jimmy as a

potential grand jury witness, what he did was take a shot at his car from several hundred yards, one

moving car to another.

John (39:52):

So, it's pretty obvious that they don't know what they're doing. It's unplanned. It was just taken in

the moment. And I think Rummell realized that they're gonna have to get some professional help if

they're really serious about eliminating Jimmy.

Benjamin Morris (40:16):

Yeah. And it's funny because this sort of keystone cookery, their unprofessionalism extends to this

allegedly professional hitman when I just loved this sequence in your book where they're trying to

persuade him. "We promise we'll pay you. We gotta come up with the money somehow. We're

gonna sell a truck, or we're gonna do all this other stuff."

Benjamin Morris (40:38):

But they didn't even have enough money to pay for his own flight down from Austin. He had to pay

his airfare himself. And it makes you wonder, I mean, what was this guy thinking as he's talking to

them? Like, "Do these guys have any idea what they're doing?"

John (40:56):

Well, Walker himself was a big talker too. He bragged about being an enforcer for drug dealers and

having shot people before, not just in Vietnam. And as you read the book and as I read the

transcript, you can see that he's just as unprofessional in his efforts at being an assassin as they

were. Maybe a little bit better, but he was very unprofessional as well.

John (41:36):

When it came to he was talking on the phone to Rummell about going down to Macallan, he asked if

there was anything he needed, and what he was talking about was whether or not they needed a

weapon. And Rummell had the weapon, but Walker shows up with a handful of bullets, none of

which fit any of the weapons that they had.

John (41:58):

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It was just very unprofessional. I think Walker wanted Rummell to believe that he was a professional

assassin, but it was probably only to justify the fee. And Walker was so desperate for the money, he

was willing to believe that they would pay him $10,000, even though he got no money up front and

then there was really no proof that these guys had any money at all to pay him.

Benjamin Morris (42:25):

Right. And whatever fee is allegedly gonna come his way is tied up in some beat up old rusty truck.

You're just thinking, "This is a laugh here."

Benjamin Morris (42:36):

And I laugh, I think it's important for us to find the levity where we can, but of course, this was

actually a terrible crime, and it was a senseless murder. And I wanna make sure that any levity that I

do find is of course, situated in the context of the gravity of the situation.

Benjamin Morris (43:00):

I wanted to ask you, John, there's this kind of interesting moment where, before the shooting itself,

how did Rummell, Esky, and Burris, how did they know that Jimmy was going to be at Pepe’s that

particular night?

Benjamin Morris (43:18):

Maybe I missed something as I was reading, but it was not entirely sort of clear to me how they were

able to keep tabs on him. And I was curious, was it customary of Jimmy based on your understanding

of the sequence there? Was it sort of customary of him just to kind of frequent his local haunts, or I

mean, how did everybody come to be at Pepe’s that particular night?

John (43:52):

Well, Burris, who was with Jimmy, and you would've thought would've been just as concerned about

his own life as Jimmy might have been, was in McAllen and was actually looking for him on behalf of

Rummell and Esky.

John (44:10):

And another conspirator, Sonny Statler was also, in McAllen. And I point this out in the book, and I

think it's important, is that according to Rummell's testimony, all four of them, Rummell, Esky,

Statler, and Burris were all part of the murder conspiracy.

John (44:30):

But all that testimony comes from Rummell. There no other evidence that these other three

individuals, Esky, Statler, and Burris were part of the murder conspiracy. And the only evidence that

they were part of the murder conspiracy is only from Rummell.

John (44:48):

And I point that out in the introduction to the book. They were never charged and certainly were

never convicted of anything to do with the murder conspiracy, only the drug conspiracy.

John (45:02):

But Statler and Burris were looking for Jimmy and had been looking for Jimmy. And somehow Burris

or Statler tracked him down to Pepe’s on the evening of July 13 th .

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John (45:18):

Now, exactly how they did that, I do not know. The transcript did not reveal that information.

Whether or not Burris knew that it was a hangout of Jimmy's, and that he just went out there and

looked for him. Whether or not they got some other information, made some calls, I don't really

know.

John (45:37):

I just know that Rummell testified that either Burris or Statler called him and told him that Jimmy

was at Pepe’s on July 13 th .

Benjamin Morris (45:52):

So, describe just briefly the shooting for us. It was very chaotic scene to begin with, and it only got

more chaotic when the gunshot rang out.

John (46:06):

Jimmy had been there for a long time. He'd been there probably since about four o'clock in the

afternoon. Charlotte and Kevin had also, been there from about 4:00 or five o'clock in the afternoon.

John (46:20):

And it was probably around 6:00 or so, that Rummell and Walker showed up and they kept waiting.

Rummell pointed out Jimmy from the parking lot, so that Walker knew who Jimmy was. Walker

decided to go in the bar, get a close look at Jimmy, sat down at a table, watched him.

John (46:43):

Jimmy had no idea Walker was over there looking at him, with the intent that he was gonna go out

to the truck, pull out a rifle and try to kill him.

John (46:55):

And after a while, Walker went back to the pickup truck in the parking lot, and they were trying to

figure out exactly how they were gonna do this. They didn't have a plan. Walker didn't really have a

plan.

John (47:09):

Rummell said, "Well, he's the assassin. I'm leaving this up to him." And the hours went by and

Rummell's getting more impatient, Walker's getting a little impatient. People are beginning to leave

to go home. It's Sunday, a lot of people have to work the next day. But Jimmy doesn't leave.

John (47:28):

So, they're hoping that Jimmy's gonna leave and that they can just follow him, or that they can

maybe shoot him when he is getting near his car or something of that nature, but Jimmy doesn't

leave.

John (47:41):

Finally, it's about quarter to midnight, and the bar closes at midnight, and there are probably only

about 30 people left. And Charlotte's seated at the bar. Kevin is leaning on the bar because of his

cerebral palsy. He needs the support of the bar.

John (48:01):

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And when I say the bar, I'm talking about the actual physical structure at the bar. And then Jimmy is

standing very close to them. I don't think that he's engaged in conversation with them. He's just

standing with a young woman near where they are.

John (48:20):

And finally, it's only about a quarter to 12, the bar is going to close, and all they have to do is wait a

few more minutes and Jimmy has to leave.

John (48:33):

But for some reason, Walker just couldn't wait any longer. He told Rummell to start the truck. And

Rummell started the truck, Walker reached under the seat, pulled out a 30-30 rifle with a scope that

Rummell had brought down to the valley. The rifle belonged to Rummell.

John (48:55):

Walker hung out the passenger window, aimed it at Jimmy. At the very moment that he fired the

shot, the bartender, who was one of the owners of Pepe’s said something funny to Charlotte. And

Charlotte threw her head back, laughing.

John (49:17):

At the very second she threw her head back laughing, Walker fired the shot, the bullet grazed the

back of her head, and it split into two pieces. Both pieces entered Kevin's neck. And she hit the

concrete floor and he went down. He died almost immediately and she died about an hour later at

the hospital.

John (49:46):

But it's safe to assume that had she not just laughed and thrown her head back into the path of the

bullet, that Jimmy might have died, but the tragedy would've been different.

Benjamin Morris (50:03):

It is remarkable, John, that throughout your account, you have these little tiny, the most minute

variations of fate, which change the entire course of the story. From the jogger who happens to see

the plane flying overhead, thinks that something's funny and calls it in to the authorities.

Benjamin Morris (50:26):

And then they get the tracking going on the smuggling operation. To this little moment where the

bartender says something funny and Charlotte laughs and that changes her life forever. It's just

these little tiny twists, which have such profound implications. That must have really struck you as

you're writing this book.

John (50:44):

Those things were very unusual. It made it sadder for me. I mean, knowing how devastated both

Charlotte's family and how Keith phrased, Kevin's brother. I had the privilege of sitting down with

him and talking to him, and communicating with him several times.

John (51:16):

And the family tragedy it's just so terrible that I just think about how something so small made such

a difference in the lives of so many people. It's just incredible. I mean, it's so sad.

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Benjamin Morris (51:36):

It is. It is, indeed. We do have to give some ... there's one bright spot here, I suppose, amid the

tragedy, which is the actions of the barman, which you point out, probably saved a few more lives.

And he was a veteran himself, and he recognized that something had just happened, which was way

beyond an accident. This was totally out of the ordinary.

Benjamin Morris (52:03):

And you write that he called for sort of everybody to get down, and interestingly, to stay down in

case there was another shot. Was that the dynamic here?

John (52:16):

I believe he did. I believe Luis Tiovina, one of the owners of Pepe's, he knew from his army

experience that it was a rifle shot. And it sounded very loud to people who were under the roof in

Pepe's. And they scattered, they went down and they stayed down until they could hear the tires of

a car speeding away.

John (52:44):

And once they were sure that no one was going to fire again, is only then did they come out from

their protection to see exactly what had happened.

Benjamin Morris (52:54):

That is some really quick thinking and really, really very remarkable in the moment. So, kudos to

him.

Benjamin Morris (53:02):

Now, in this moment, you write that the stakes of this case have suddenly and permanently

changed, and that they have gotten so much greater, so much higher than they were up until this

point.

Benjamin Morris (53:15):

Now, Jimmy goes into protection, he goes into hiding under the care of ... which authority actually is

kind of over him at this point? Is it the assistant US Attorney's Office? Is it Texas Public Safety?

John (53:34):

Well, probably a federal law enforcement officer, either it was probably not the DEA. It could have

been a local federal law enforcement officer that was asked to take Jimmy home and to be sure he

was safe.

John (53:55):

I believe that in reading one of the reports that they stayed his home to be sure that everything was

safe inside before they left him. But the law enforcement officer from the Loop 360 case would not

have been in the vicinity at the time.

John (54:12):

But drug enforcement agent Richard Brazil did take Jimmy and keep him in an unknown location

until his grand jury testimony. He did take him after that night and put him in a safe place.

Benjamin Morris (54:29):

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Yeah. You have this amazing paragraph on page 56 of your book, and I was wondering if it sort of

just sets the — it helps us to see just how everything is different as a result of this particular shooting

incident. Would you just read that for us as the paragraph that starts less than 30 days.

John (54:52):

"Less than 30 days after the shooting of Charlotte and Kevin, Jimmy appeared before the Federal

Grand Jury in Austin, and implicated [00:55:04] Rummell, Esky, Statler, Savantis and Crisp as the

remaining members of the Loop 360 deal Conspiracy."

John (55:12):

"Pierce recognized the courage it took for Jimmy to testify. He could have chosen to remain silent

and go back to jail under the contempt order, rather than risk being killed. No one would've blamed

him."

John (55:24):

"Whether he testified because of the attempt on his life or despite it, Jimmy gave Pierce the

information he needed to prosecute the other Loop 360 deal participants."

John (55:36):

"In October, 1981, at Pierce's request, Jimmy's sentence was reduced from four to two years to

account for his cooperation. Burris also, testified before the grand jury. The hunters now, became

the hunted."

Benjamin Morris (55:50):

Gave me a little shiver as I read that. That really is such a fascinating account. And you write shortly

thereafter that it's gonna take us a little while with indictments, with gathering evidence, and with

bringing formal charges before everybody can appear in your courtroom.

Benjamin Morris (56:13):

But the next domino, the most important domino in the sequence here to fall, is David Esky. And

with the shooting, with the loss of innocent life and with the recognition that everything is spiraling

out of control for the conspirators, David Esky becomes the focus of your account in a way that, I

don't know, as I was reading it, I was just sort of thinking, I have no idea what he's gonna do.

Benjamin Morris (56:57):

He is getting boxed in step by step and he's feeling the pressure in a way that Jimmy had just a

chapter or two earlier, but with so much more gravitas upon him.

Benjamin Morris (57:11):

So, can you help us to understand what the delicacy of Esky's position after the shooting and after

Jimmy's testimony.

John (57:24):

Esky's situation was very unique for several reasons, especially in light of Rummell's testimony at

trial. If Rummell is to be believed that Esky was part of the murder conspiracy, you wouldn't think

that Esky would say anything to anybody about what happened in the Valley.

John (57:46):

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But after Jimmy testified before the grand jury and identified Esky and the others as part of the Loop

360 deal, Esky was charged and he was arrested. And this was probably a couple of months after the

killings in the Valley.

John (58:05):

And he knew that if he was going to get out from under this Loop 360 deal, he was going to need to

provide Pierce with some valuable information. And he knew that the most valuable information he

could provide is something about the killings of Charlotte and Kevin.

John (58:27):

He had been involved in the criminal justice system, and he was very sophisticated when it came to

knowing that that kind of information would help him deal with Pierce in getting out from under that

Loop 360 deal.

John (58:45):

And usually, it's very, very unusual for a defendant who is unrepresented to ask when he has just

been arrested, "I want to talk to the prosecutor." I don't know that I can remember that happening

in the 29 years that I was a United States magistrate judge. It just does not happen.

John (59:11):

I mean, if somebody's represented, then they go through their lawyer, but it is extremely rare that

would happen. That a defendant is unrepresented, says, "I wanna talk to the prosecutor, and I want

to talk to him now, without a lawyer."

John (59:27):

And he did that. And when he talked to Pierce, he says, "I know who killed those people, and I can

get him for you." And at that point, people had investigated the murder, but no one had any leads

about who the murderer was.

John (59:44):

And Jimmy figured they were after him, but he did not know who the killers were. And when Esky

was able to say, "Look, Rummell was the guy that hired the killer." Pierce said, "Okay, that's good

information, and if that information pans out, then I will dismiss the Loop 360 conspiracy charges

against you."

John (01:00:09):

And with that information, Esky agreed to wear a wire transmitter. And he recorded a conversation

with Rummell in which Rummell implicated himself in the murder conspiracy. He went to Rummell's

house on the pretext of buying some marijuana. And Rummell had absolutely no idea that Esky had

now turned government informant and completely implicated himself in the murder conspiracy.

John (01:00:45):

And once that information was known to Pierce, then Esky had basically gotten out from under the

Loop 360 deal conspiracy. It’s the interesting thing is that then they got to trial, Rummell implicated

Esky in the murder conspiracy.

John (01:01:05):

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So, you have the Esky who basically, gave Rummell to Pierce and Rummell then saying, "Hey, I'm not

sure why he's doing this, but Esky was part of the murder conspiracy too." But there was no other

evidence, as I pointed out earlier, that Esky was part of the murder conspiracy other than from

Boyce Rummell.

Benjamin Morris (01:01:24):

Right. No honor among thieves, and no honor among smugglers, and no honor among murderers.

John (01:01:34):

No, not when it came to staying out of prison.

Benjamin Morris (01:01:37):

It really is something. I can only imagine what that particular encounter between Esky and Rummell

must have been like when Esky is wired up.

Benjamin Morris (01:01:46):

And what's interesting to me about your account, John, is that he goes in there and he knows that

he has to get enough information or the right kind of information for Pierce, otherwise, he's not

making it out of this. Either way, I mean, it's kind of the definition of rock and a hard place, isn't it?

John (01:02:05):

It was very, very unusual. I'm sure Pierce was surprised to hear from him. They knew each other

from past drug cases, so, he knew to ask for Pierce. And he also, knew that talking to the DEA agent

Dick Brazil was not gonna get him what he wanted. The DEA agent could not get him a deal on the

Loop 360 case.

John (01:02:34):

So, he immediately after he was arrested, I think Dick Brazil actually arrested him. He said, "I want to

talk to Pierce because I can give him some valuable information." And Pierce went to talk to him,

and it worked out for Esky.

Benjamin Morris (01:02:49):

I have heard y'all folks down in South Texas like to gamble. But this was a new form of it to me.

John (01:02:57):

This was highly unusual, but it turned out to be a big stepping stone in the investigation that

ultimately, led to the identification and prosecution of Lloyd Chris Walker.

Benjamin Morris (01:03:07):

Yeah. So, we we're gonna wrap it up here in just a moment with Rummell's indictment and the

return to the courtroom where you meet everybody.

Benjamin Morris (01:03:22):

But just for the legal eagles out there among us, I know we have some folks with that kind of

expertise among our listenership, will you describe this really innovative use of the US Code title 18,

section 241, you write.

Benjamin Morris (01:03:41):

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You said that there was a truly novel means of prosecution here to get Rummell that had not

typically been used in the past. Can you just unpack that for us?

John (01:03:53):

Well, it was back in 1982 or basically the crime was committed in 1980. So, there had to be a crime

on the federal books at that time to prosecute Rummell and eventually Walker for attempting to kill

a federal grand jury witness.

John (01:04:14):

And there was no federal statute that prohibited or that concerned the attempt to kill a federal

grand jury witness. There, of course, is now.

John (01:04:26):

So, at the time, Pierce and John Murphy decided on 18 USC Section 241, which was attempting to

intimidate somebody in the exercise of a constitutional right. And the constitutional right at issue

was Jimmy's right to testify before a federal grand jury. And by attempting to kill him, the argument

was that they were intimidating him or attempting to prevent him from exercising that right.

John (01:04:52):

And my first thought was, and the thought of the defense at one point was, well, he wasn't testifying

voluntarily, they were forcing him to testify. And that argument was actually made before the Court

of Appeals at one point.

John (01:05:18):

And the Court of Appeals rejected that argument. It upheld the use of Section 241 and held that by

attempting to kill Jimmy, they were intimidating him and threatening him in his desire to testify

before the federal grand jury.

John (01:05:34):

So, it was a novel use of that statute. And in fact Pierce and Murphy had to seek permission from the

Department of Justice in Washington to use the statute for the prosecution in this case. And there

were several DOJ attorneys who were reluctant to use it for that purpose, because it was primarily a

civil rights statute that was enacted during the Ku Klux Klan era.

John (01:06:02):

And they were a little reluctant to use it for this purpose, but they eventually relented. And that was

the statute that both Rummell and eventually Walker were prosecuted under.

Benjamin Morris (01:06:16):

Is that common for state prosecutor to have to go to Washington and say, "Hey, we've got this tool

in the toolkit. Can we use it?"

John (01:06:26):

Well, they're both federal prosecutors. But I think it is a little ... I don't think that they would

normally have to go to the DOJ for permission to prosecute someone. But there are situations where

either the facts are unusual that they might have to seek DOJ permission.

John (01:06:48):

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But I think being able to use a statute like they used the statute in this case, I think that's very

unusual that the local federal prosecutors had to seek DOJ permission to prosecute under this

particular statute or a particular statute.

Benjamin Morris (01:07:01):

Well, I think what we can definitely say is, "Coming to a law school moot court classroom near you,"

sometimes. That's fascinating. That really is very compelling for those of us who liked the

technicalities. That's great. Thank you for that.

Benjamin Morris (01:07:26):

So, in November, 1980, Rummell is indicted. He's booked, he pleads guilty. And very shortly

thereafter, Walker, the trigger man, is found in New Mexico. And he has to be extradited as you

write in the book. And the trial begins in June, 1982, which is where you meet all of these individuals

for the first time in your capacity as briefing attorney.

Benjamin Morris (01:07:49):

We've come full circle to that moment. Of course, 40 years ago, you had no idea that you would be

writing a book about this particular case. You were just there in your capacity, but can you just

describe for us your memories of the very beginning of the trial or kind of your memories of Judge

Garcia? Kind of just take us to that moment when this case all got started and found you.

John (01:08:27):

Well, when I started as a lawyer, I started practicing in state court. So, I eventually became a briefing

attorney in federal court for Judge Garcia. About three years after, I became an attorney. And so, I

was always extremely impressed by federal court. It just seemed to me a very impressive,

sophisticated court and court proceedings.

John (01:08:48):

Judge Garcia is one of the most unique individuals and unique judges that anyone could ever hope to

meet. He was a mentor to me, to many other people, and many other people who also, became

judges.

John (01:09:22):

And he was an ideal person for this case. He's extremely patient, tremendous judicial temperament.

I learned so many things from him that I would later use in my own capacity as a judge.

John (01:09:40):

And when this case started, I just remember the impact it had on me, because as I mentioned, there

are so few cases in federal court that involve violence. We involve so many drug cases, we have

immigration cases, we have lots and lots of white collar crime cases, but it's very, very rare that we

have cases involving violence.

John (01:10:08):

And I remember Charlotte's parents being there, her mother and father. And just how very, very sad

it was that her mother and father would sit in the back of the courtroom every day and her mother

would testify. And it was so very sad.

John (01:10:26):

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I mean, she testified and was in the transcript how Pierce, put her on the witness stand to testify

about Charlotte and having taken the trip to the Valley. And Pierce asked her how many children

they have and she said, "We have six. We have five. Before Charlotte's death, we had six." And it was

just like, "Oh."

John (01:10:46):

I mean, the impact it had on me and I'm sure on the jury and on everyone else in the courtroom.

And it was just a very, very sad time. And the deaths of Charlotte and Kevin just had an impact on

me, and it made an impression on me that lasted throughout my legal career.

John (01:11:05):

I was probably about 30 years old at the time, or 29. And it was something that stayed with me

forever and was one of the reasons I decided to write this book.

Benjamin Morris (01:11:19):

Well, it's a remarkable story, and we're grateful to you for bringing it to light. We are not going to

spoil what happens at the trial for our listeners. For that they are going to have to go and check out

the book themselves.

Benjamin Morris (01:11:34):

But the last half of the book is just as compelling as the first half. I can absolutely recommend it on

those terms.

Benjamin Morris (01:11:45):

Now, for those who do want to learn more about you or find a copy of the book, where can they do

that?

John (01:11:52):

I have a website, www.jwprimomo.com. It has information about my three books, or you can get

this book, The Rio Grande Sniper Killings at Amazon or Barnes & Noble. And either one of those

places. I'm certainly glad to be here and glad to talk about it.

Benjamin Morris (01:12:18):

Well, John, if I may, your Honor, we are so grateful to you for taking the time for us. Last week we

had the discussion of a judge gone bad, and I can't tell you how good it feels to be in conversation

with one of the good guys.