Fellow officer testifies the agent kicked the migrant twice and kneed his neck while man was on the ground.

  LUKE TURF

  A Border Patrol agent testified yesterday that a fellow agent and former academy classmate
  assaulted an illegal immigrant and tried to coerce the man into not telling authorities about the
  incident.

  Border Patrol agent Benjamin Works was the first witness against Javier Acosta, who is charged with
  one count of assault with bodily harm and one count related to the alleged cover-up. He is accused of
  twice kicking an illegal immigrant and dropping his knee into the back of the man's neck while the
  immigrant was lying on the ground. The trial started in U.S. District Court with jury selection Tuesday,
  almost two years after the alleged incident.

  Works testified he and Acosta trained together in the Border Patrol academy and spent time together
  outside the academy.

  Both agents were still in training when the alleged incident occurred April 7, 2002. Works testified
  Acosta's behavior was inappropriate for the situation because the immigrant, Benjamin Ortega, posed
  no threat to the agents after about a half-mile chase because he was on the ground with his arms
  and legs spread and Works had his gun drawn.

  "The subject (Ortega) showed no resistance, no aggressive behavior, so there'd be no reason to use
  any force at all," Works said. "I was surprised to see that behavior."

  Works testified that Acosta was chasing Ortega but fell behind and Works, a faster runner, caught
  up. Works said he had Ortega on the ground when an out-of-breath and red-in-the-face Acosta
  caught up, screaming so fast in Spanish the only word Works said he understood was "coyote,"
  Spanish slang for immigrant smuggler.

  Works said he told Acosta to put handcuffs on Ortega. Instead Acosta kicked Ortega twice and
  dropped his knee on the back of Ortega's neck, which caused a split on Ortega's lip, Works said. The
  defense and the prosecutor used mannequins to show the jury what Ortega allegedly did.

  Prosecutors also allege Acosta told Ortega to say he fell and split his lip, and that if he did that, he'd
  be voluntarily returned to Mexico.

  Prosecutors claim Acosta said if Ortega revealed he had been kicked, he would serve time for
  immigrant smuggling.

  "This case is about the willful use of force and the corrupt attempt to cover it up," said Jerrob Duffy,
  trial attorney for the government's civil rights division.

  But Duffy said Ortega is "no saint."

  Ortega was convicted of possession of more than five kilos of cocaine with intent to distribute in 1989
  and gave agents a phony name, prosecutors and the public defender said.

  Assistant Public Federal Defender Joel Parris said there was no attempt to cover up the incident and
  that Acosta "did the best he could, given his training and his experience in the field."

  Works testified Acosta asked him about getting their story straight for superiors and Works said he
  replied he'd just tell the truth.

  But Parris said Acosta, who speaks English as a second language, wasn't trying to hide anything.
  Rather, he feared whether he could articulate justification of his actions. Writing and conveying
  information in English, being articulate and filling out reports with "agent jargon" is Acosta's biggest
  challenge in the Border Patrol, Parris said.

  Acosta graduated second in his Border Patrol agent class. The trial is scheduled to continue today and
  the jury is expected to begin deliberating February 10.

  Each of the two charges Acosta faces carries a maximum penalty of 10 years in prison, Parris said.