Prosecutors who asked a federal court to seal the records in the killing of a U.S. Border Patrol agent as part of their investigation into the "Fast and Furious" operation now say they will ask that some of the documents be made public - more than a year after the shooting death.
Six newspaper and television stations in Arizona had asked that documents in the Dec. 14, 2010, death of Border Patrol Agent Brian A. Terry be unsealed, telling a federal court the public had a right to inspect the records and attend any criminal trials that may come out of it.
On Wednesday, prosecutors said that although unsealing the entire case would reveal the identity of those charged in the shooting but not yet apprehended, they were willing to unseal the remaining documents.
Five illegal immigrants armed with at least two AK-47 semiautomatic assault rifles purchased during the Fast and Furious operation were hunting for Border Patrol agents near a desert watering hole known as Mesquite Seep just north of the Arizona-Mexico border when a firefight erupted and Terry was killed.
Sen. Chuck Grassley of Iowa, ranking Republican on the Senate Judiciary Committee who first asked questions about Fast and Furious, said it was not unusual for a criminal case to be sealed with fugitives still at large, but "in high-profile and controversial cases such as this, the Justice Department should make every effort to release more information than they normally would."
"More transparency is especially needed when there are credible questions about whether Operation Fast and Furious contributed to the death of a federal agent," Mr. Grassley said.
The now-sealed federal grand jury indictment in the case says the Mexican nationals were "patrolling" the rugged desert area of Peck Canyon at about 11:15 p.m. 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 had identified themselves in Spanish as police officers.
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 Marine, was shot in the back.
A Border Patrol shooting-incident report said 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.
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 he and others whose names were blacked out "did unlawfully kill with malice aforethought United States Border Patrol Agent Brian Terry."
Two Romanian-built AK-47 assault rifles found at the shooting scene were identified as having been purchased at a Glendale, Ariz., gun shop as part of the Bureau of Alcohol, Tobacco, Firearms and Explosives' (ATF) failed Fast and Furious investigation.
A judge must approve the news outlets' entry in the case and has the authority to order records unsealed. The news organizations that asked for the case to be unsealed are the Arizona Daily Star, the Associated Press, the Arizona Republic, and Phoenix television stations KPNX, KPHO and KNXV.
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