Five illegal immigrants armed with at least two AK-47 semi-automatic assault rifles were hunting for U.S. Border Patrol agents near a desert watering hole known as Mesquite Seep just north of the Arizona-Mexico border when a firefight erupted and one U.S. agent was killed, records show.
A now-sealed federal grand jury indictment in the death of Border Patrol agent Brian A. Terry says the Mexican nationals were "patrolling" the rugged desert area of Peck Canyon at about 11:15 p.m. on Dec. 14 with the intent to "intentionally and forcibly assault" Border Patrol agents.
At least two of the Mexicans carried their assault rifles "at the ready position," one of several details about the attack showing that Mexican smugglers are becoming more aggressive on the U.S. side of the border.
According to the indictment, the Mexicans were "patrolling the area in single-file formation" a dozen miles northwest of the border town of Nogales and — in the darkness of the Arizona night — opened fire on four Border Patrol agents after the agents identified themselves in Spanish as police officers.
Two AK-47 assault rifles found at the scene came from the failed Fast and Furious operation.
Using thermal binoculars, one of the agents determined that at least two of the Mexicans were carrying rifles, but according to an affidavit in the case by FBI agent Scott Hunter, when the Mexicans did not drop their weapons as ordered, two agents used their shotguns to fire "less than lethal" beanbags at them.
At least one of the Mexicans opened fire and, according to the affidavit, Terry, a 40-year-old former U.S. Marine, was shot in the back. A Border Patrol shooting-incident report said that Terry called out, "I'm hit," and then fell to the ground, a bullet having pierced his aorta. "I can't feel my legs," Terry told one of the agents who cradled him. "I think I'm paralyzed."
Bleeding profusely, he died at the scene.
After the initial shots, two agents returned fire, hitting Manuel Osorio-Arellanes, 33, in the abdomen and leg. The others fled. The FBI affidavit said Osorio-Arellanes admitted during an interview that all five of the Mexicans were armed.
Peck Canyon is a notorious drug-smuggling corridor.
Osorio-Arellanes initially was charged with illegal entry, but that case was dismissed when the indictment was handed up. It named Osorio-Arellanes on a charge of second-degree murder, but did not identify him as the likely shooter, saying only that Osorio-Arellanes and others whose names were blacked out "did unlawfully kill with malice aforethought United States Border Patrol Agent Brian Terry while Agent Terry was engaged in ... his official duties."
The indictment also noted that Osorio-Arellanes had been convicted in Phoenix in 2006 of felony aggravated assault, had been detained twice in 2010 as an illegal immigrant, and had been returned to Mexico repeatedly.
Bill Brooks, U.S. Customs and Border Protection's acting southwest border field branch chief, referred inquiries to the FBI, which is conducting the investigation. The FBI declined to comment.
The case against Osorio-Arellanes and others involved in the shooting has since been sealed, meaning that neither the public nor the media has access to any evidence, filings, rulings or arguments.
The U.S. attorney's office in San Diego, which is prosecuting the case, would confirm only that it was sealed. Also sealed was the judge's reason for sealing the case.
The indictment lists the names of other suspects in the shooting, but they are redacted.
In the Terry killing, two Romanian-built AK-47 assault rifles found at the scene were identified as having been purchased in a Glendale, Ariz., gun shop as part of the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) failed Fast and Furious investigation.
A number of rank-and-file Border Patrol agents have questioned why the case has not gone to trial, nearly a year after Terry's killing. Several also have concerns about the lack of transparency in the investigation, compounded now by the fact that the court case has been sealed.
Shawn P. Moran, vice president of the National Border Patrol Council, which represents all 17,000 nonsupervisory agents, said it is rare for illegal immigrants or drug smugglers to engage agents in the desert, saying they usually "drop their loads and take off south."
"The Brian Terry murder was a real wake-up call," Mr. Moran said. "It emphasizes the failed state of security on the U.S. border, which poses more of a threat to us than either Iraq or Afghanistan. We have terrorism going on right on the other side of the fence, and we're arming the drug cartels.
"My biggest fear is that someday a cartel member is going to go berserk, stick a rifle through the fence and kill as many Border Patrol agents as he can," he said.
Mr. Moran said he understood the "rationale of working things up the food chain," as suggested in the Fast and Furious probe, but had no idea how ATF planned to arrest cartel members who ultimately purchased the weapons since the agency lacks jurisdiction south of the border and never advised Mexican authorities about the operation.
"It was a ridiculous idea from the beginning, and it baffles us on how it was ever approved," he said.
Mr. Moran also challenged the use of less-than-lethal s in the shooting incident, saying field agents have been "strong-armed" by the agency's leadership to use nonlethal weapons. He said they were not appropriate for the incident in which Terry was killed.
"That was no place for beanbag rounds," he said, noting that the encounter was at least 12 miles inside the U.S. and was carried out by armed men looking specifically to target Border Patrol agents.
CBP has said Terry and the agents with him carried fully loaded sidearms, along with two additional magazines, and were not under orders to use nonlethal ammunition first.
Mr. Moran, himself a veteran Border Patrol agent, said he also was "surprised" that the suspected Mexican gunmen were carrying their weapons at the ready position, meaning that the butts of the weapons were placed firmly in the pocket of the shoulder with the barrels pointed down at a 45-degree angle. He said this probably meant they had some level of military training.
More than 250 incursions by Mexican military personnel into the United States have been documented over the past several years.
The Border Patrol has warned agents in Arizona that many of the intruders were "trained to escape, evade and counter-ambush" if detected. The agency cautioned agents to keep "a low profile," to use "cover and concealment" in approaching the Mexican units, to employ "shadows and camouflage" to conceal themselves and to "stay as quiet as possible."
Several of the incursions occurred in the same area where Terry was killed, including a 2005 incident in which two agents were shot and wounded by assailants dressed in black commando-type clothing in what law-enforcement authorities said was a planned ambush. More than 50 rounds were fired at the agents after they spotted the suspected gunmen.
Many of the Mexican drug cartels use former Mexican soldiers, police and federal agents to protect drug loads headed into the U.S. Many cartel leaders also have targeted U.S. Border Patrol agents and state and local police, sometimes offering bounties of up to $50,000.
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