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'Rip crew' member found guilty of 1st-degree murder in killing of BP's Brian Terry

After just a few hours of deliberation Tuesday, a jury found Heraclio Osorio-Arellanes guilty of first-degree murder, one of nine charges stemming from his role in the 2010 gunfight that killed Border Patrol Agent Brian Terry.

A jury of four men and eight women deliberated for just a few hours after closing arguments before they returned and found Osorio-Arellanes guilty of all nine charges, including first-degree murder, second-degree murder, conspiracy to effect interstate commerce by robbery, attempted robbery, assault on four Border Patrol agents and carrying a firearm during a crime of violence.

Osorio-Arellanes, or "Laco," will face sentencing on April 29. Just one other member of the group of seven men charged in Terry's death still faces trial. The other six, including Osorio-Arellanes, have been found guilty on various charges — four of them of murder.

Osario-Arellanes was part of the "rip crew"— a group of men who robbed drug smugglers at gunpoint—who exchanged gunfire with four Border Patrol agents, each a member of the elite Border Patrol Tactical Unit on Dec. 14, 2010. 

Terry, and BP agents William Castano, Gabriel Fragoza and Timothy Keller, had set up a position in a remote area south of  Tucson, known as Mesquite Seep, as part of an operation to apprehend the group of bandits, who were armed with AK-47-style rifles, said David D. Leshner, an assistant U.S. attorney. 

The team had been in position for nearly 48 hours, and were ready to leave, when an observation post told them that men were approaching from the east. As the armed men came close, one the agents yelled "policia," or "police" in Spanish, and told the men to drop their weapons. One agent, Gabriel Fragoza, said he saw the men turn toward him, with their rifles at the "ready" position, so he fired a shotgun containing beanbag rounds, and at some point the men returned fire, firing at least five rounds from their AK-47-patterned rifles. 

During the exchange of gunfire, Terry was fatally wounded by a bullet that hit him in the back just above the hip, hitting his spine and severing his aorta. 

Terry yelled to Castano, "Will, I'm hit." As Castano tried to treat Terry's injury, Terry said, "I can't feel my legs," and lost consciousness. Terry died in the desert west of Rio Rico, Ariz., as the relief team attempted to carry him to a waiting helicopter. 

The case became central to a firestorm of criticism against Obama-era officials, after an investigation showed that one of two AK-47-type rifles used by the rip crew was connected to a Bureau of Alcohol Tobacco Firearms and Explosives investigation designed to track the sale of guns bought by straw purchasers in Phoenix-area gun stores and smuggled into Mexico.

However, the agency lost track of at least 2,000 of these weapons, including the one used to kill Terry. Ultimately, the agency recovered around 700 of the guns.

The operation, dubbed "Fast and Furious," became the focus of a congressional investigation that ultimately led to a contempt hearing for former Attorney General Eric Holder.

Fallout from the case forced U.S. Attorney for Arizona Dennis Burke to resign, and the U.S. Attorney's Office of Arizona had to recuse itself from trials connected to it. 

"Brian Terry’s family will never have its hero back, but his loved ones now have justice,” said U.S. Attorney Robert Brewer of the Southern District of California. "The jury’s verdict is the right outcome not only for the family, but for the men and women of the U.S. Border Patrol who daily put their lives at risk to protect this country." 

During closing arguments in this trial, Leschner told the jury to start with the robbery charge, because everything else the men did that night "flowed" from that crime. 

"Their mission is to commit a robbery," Leschner said. And, because they went to an area where they know there were Border Patrol was in the area, "it was foreseeable that they going to encounter" agents, so that when they went to Mesquite Seep with their assault rifles at the ready, "they were hunting." 

As he spoke, Leschner picked up one of the AK-47s and showed it to the jury. 

The men went to Mesquite Seep because it's a "choke point" for smuggling routes through the mountains roughly parallel to Interstate 19, north of Nogales, Ariz., he said. If people go through the area, they can be at the highway in two to three hours, otherwise they face another three to four day's walk, Leschner said. 

Leschner showed the jury how the men brought 300 tortillas, cans of beans, sardines, and prepackaged noodles, and seven extra boxes of ammunition, holding 180 rounds. However, he said that one piece of evidence best illustrated how the men were prepared to use their weapons in the desert: the fact that the men brought at least two bottles of gun lubricant with them. "They wanted to ensure that these guns would work; this tells you as much as possible," he said. 

During the trial, experts said that the bullet recovered from Terry's body was severely damaged and that they could not tell which of the AK-47 rifles it was fired from.

Osorio-Arellanes' defense attorney, Francisco Leon said the case was a "tragic case," because Terry was killed and Heraclio's brother had been shot, but that the Border Patrol agents were "well-hidden" and that in the dark night, lit only by a half-moon, his client and the other men didn't know who was there. When Castano yelled "policia," it "was just someone yelling in the dark," Leon said. 

"Understandably, they looked up to the yelling," Leon said, "And then all hell breaks loose." Leon argued that the bullet that hit Terry was a ricochet, not an aimed shot, and that the men in the rip crew were firing blindly into the dark. 

He also argued that DNA evidence presented didn't prove that his client was at the scene that night. Leon also tried to attack statements that his client made during an interview in Mexico. Leon said that the interview was "curiously secretly recorded" and that Osorio-Arellanes' attorney in Mexico did not understand the charges. 

During the firefight, Osorio-Arellanes' brother, Manuel Osorio-Arellanes, was also wounded and left in the desert. He was arrested, and later pleaded guilty, and was sentenced to 30 years in prison in 2014.

The other men fled, resulting in a long-term manhunt in Mexico for the remaining members of the rip crew, as well as two other men who were indicted for their roles in the conspiracy that ultimately led to Terry's death.

After Osorio-Arellanes is sentenced, only one other man will still face trial. 

Osorio-Arellanes was arrested in 2017 by Mexican Marines on the border of northern Mexican states of Sinaloa and Chihuahua, while Jesus Favela-Astorga, the last remaining fugitive, was arrested in Mexico a few months later, and extradited to the United States. He faces trial later this year. 

Osorio-Arellanes' other brother, Rito Osorio-Arellanes, had been arrested two days earlier by Border Patrol agents in the same area, and after officials connected the brothers to the "rip crew," he was charged as well. He later pleaded guilty to conspiracy to interfere with commerce by robbery, and was sentenced to eight years in prison in 2013.

Two other men, Ivan Soto-Barraza and Lionel Portillo-Meza, were both found guilty by a federal jury in October 2015. Both received mandatory life sentences in the killing, along with an additional 10 years each for carrying a firearm in furtherance of a crime of violence. Both men were also sentenced to 20 years for conspiracy and assault on three federal agents, terms that will be served concurrently with their life sentences.

In October, Rosario Rafael Burboa-Alvarez was sentenced to 27 years in prison in a Tucson court for first-degree murder after he admitted that he recruited the members of the group in Mexico, who then entered the United States on foot and used caches of weapons and supplies hidden in the desert to intimidate smugglers into giving up their loads of marijuana. The group would then hand over the marijuana to other co-conspirators and sell the drugs for a profit.

Several members of Terry's family were in the courtroom during the trial. 

After the verdict was read, the family left the courtroom, and in the hallway, Terry's mother Josephine Terry took out a pendant in the shape of a dogtag that had her son's picture. "Today's my birthday," she said. "This was a good present for me today," she said. 

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BP Agent Brian Terry