he May 6 unsealing of a federal indictment against Manuel Osorio-Arellanes revealed new details about the night of Dec. 14, 2010, when Border Patrol Agent Brian Terry was murdered on Coronado National Forest land northwest of Nogales.
Terry's elite, four-man tactical unit was conducting operations at Mesquite Seep, along the dangerous Peck Canyon smuggling corridor, when they encountered armed bandits "patrolling in single file formation," at least two of them carrying 7.62-by-39mm Romanian AK-47 assault rifles.
The bandits carried the rifles "at the 'ready' position when they encountered the Border Patrol agents," the indictment said. At least two of the defendants shot at Border Patrol agents after the agents identified themselves as police.
As has been previously reported, the firefight began with one of the Border Patrol agents firing two rounds from a nonlethal beanbag shotgun. This same agent then fired "an unknown number of rounds from his service-issued sidearm," according to a Border Patrol report.
Another agent fired at the men with his M4 rifle. Terry, shot in the back, "called out that he was hit and couldn't feel his legs," and soon lost consciousness.
Arellanes, 34, originally from El Fuerte, Mexico, and in the U.S. illegally, was wounded in the gun battle. He was one of four men arrested that night, and in a statement to the FBI, he admitted carrying a rifle. He said "he had raised his weapon towards the Border Patrol agents, but did not fire because he had realized that they were Border Patrol agents. At this time, he was shot," according to a search warrant filed with the court.
The indictment confirms Arellanes, also known as Paye, was one of the men carrying an AK-47, along with 25 rounds of ammunition. It isn't clear from the wording whether investigators believe Arellanes fired his weapon, but sources say he did not.
The indictment says the gunman who fired the fatal shot fled and is being sought.
In addition to second-degree murder, the 14-count indictment includes weapons and conspiracy charges. It includes at least two fugitive co-defendants whose identities remain under seal.
Arellanes' trial is set for U.S. District Court in Tucson on June 17. A conviction on second-degree murder carries a maximum sentence of life in prison.
The indictment also raised the question about a possible link between the three other men arrested that night—and later deported—and the rip crew involved in Terry's death.
Court records show that two of them—Francisco Rosario Camacho-Alameda, or Almeda, and Jose Angel-Camacho—had been previously deported at Nogales on Feb. 26, 2010. One of the unnamed fugitives now being sought had been previously deported at Nogales at practically the same time—"on or about Feb 25, 2010," according to the indictment.
The three men—the third being Jesus Soria-Ruiz—were all illegal aliens. They were held for two months, initially on charges of re-entry after deportation, a felony carrying the possibility of two years in jail.
In February, the U.S. Attorney's Office announced that an "extensive investigation" had yielded no evidence linking the three to the Terry shooting. The felony charges against them were reduced to misdemeanors; all three pleaded guilty and were sent back to Mexico.
Robbie Sherwood, spokesman for the U.S. Attorney's Office in Arizona, says there is no link between the fugitive named in the indictment and any of the men taken into custody that night. "They're all different people," he says. "We did not release people suspected of murder."
But the deportation dates for Camacho-Alameda and Angel-Camacho, and their arrests on the night of the murder, mark two occasions when they were in relative proximity, in geography or timing, to the bandits who killed Terry.
"It's certainly a world of extreme coincidence," says Ron Colburn, who recently retired as national deputy chief of the Border Patrol.
He initially believed, along with others in the Border Patrol, that all four men arrested the night of the murder were involved. Now living in Arizona, Colburn is a founder of the BORTAC tactical unit, of which Terry was a part, and he keeps in close touch with the group. That includes the Border Patrolmen involved in the hunt for Terry's killer.
In the first 48 hours after the murder, he kept getting calls from agents saying, 'Ron, we think there were five, and we're chasing one now, because we've already captured three, plus one is in the hospital.' The agents hunting the killer firmly believed all of the men arrested that night were in one pack, connected somehow to the rip crew.
No fifth suspect was ever found, says Sherwood.
Colburn says he was having lunch with Matt Allen, the special agent in charge of Immigration and Customs Enforcement in Arizona, the day that word got out that the three men would be sent back to Mexico. Colburn felt "emotionally pulled toward trying to do something rather than just letting them walk."
He felt so strongly that he appealed to Allen to intervene. But Allen said it wasn't his case. Colburn describes Allen shrugging, as if to say, "What can I do?"
After the U.S. Attorney's strong denial, Colburn—who has led BORTAC missions in the Peck Canyon Corridor—says he is willing to believe the three deportees were not involved in the Terry episode. But their pattern of behavior indicates they weren't ordinary illegal aliens. "I suspect they may have been connected with drug- or people-smuggling, or they were part of some rip crew," he says.
In an e-mail, former U.S. Attorney Bates Butler, now a criminal defense lawyer in Tucson, tells the Tucson Weekly that he has spoken to a lawyer with knowledge of the matter who also stated that the three were not involved.
"The three others were found about one mile from the shooting, along the same trail used by the shooters, which I suppose accounts for the agents believing that they had tracked the shooters back to the three," Butler's e-mail says. "Apparently the trail was oftentimes used by many." He declined to reveal the lawyer's name.
In a phone conversation, Butler speculated that Arellanes began cooperating with investigators, and the information he provided about that night—and the others in the crew—led to the indictment. "I'm not surprised Arellanes got charged with second-degree if he is cooperating," says Butler.
As the Weekly reported on April 21 (see "The Brothers Arellanes"), Arellanes has a criminal past in Maricopa County that includes domestic abuse and assault on a police officer. He also has been a heavy meth user, the drug of choice among smugglers and coyotes because of the boost it gives to keep them walking.
As in many cases of border violence, the issue of illegals re-entering the country after being deported following earlier crimes plays a central role in the Terry murder. Arellanes had been previously removed at Nogales on June 14, 2010. Another unnamed co-defendant had been previously deported at Nogales on Oct. 19, 2010, the indictment says.
Jesus Soria-Ruiz, one of the men arrested the night of Terry's murder who was later deported, has a lengthy record. Court records show he was arrested near Nogales on Jan. 29, 2006, and again near Nogales on July 14, 2010.
A man believed to be Manuel Arellanes' brother, Rito Osorio-Arellanes, was arrested two days before the Terry murder in Rio Rico, near the Peck Corridor. He has a criminal record in this country and told a Maricopa County probation officer in 2004 that he had done time in Mexico for homicide.
Rito is still being held on a charge of re-entry after deportation. He, too, had been previously deported through Nogales, on Feb. 11, 2010. If the pattern holds, he will plead to a misdemeanor, get time served and be deported again, rather than being tried and given substantial jail time—which means Border Patrol agents would risk encountering him again in the canyons, and Peck Corridor residents will risk encountering him in their backyards.
The same applies to many prior deports and explains why smuggling corridors such as the one through Peck Canyon are so out of control. Consequences are minimal; the law does not deter.
Butler cautions, however, that a solution would require more prisons, prosecutors and judges, and he doesn't think people are prepared to pay the taxes necessary to hold jury trials for, and then jail, all of those offenders convicted on felony re-entry.
But one fact is undeniable: The border along these smuggling corridors is largely open, and Homeland Security Secretary Janet Napolitano's claim of a secure border is laughable.