'Rip crew' member gets life sentence for role in murder of BP Agent Brian Terry
One of the men involved in the 2010 gunfight that killed Border Patrol Agent Brian Terry near Nogales, Ariz., was sentenced to life in prison by a federal judge Wednesday.
Heraclio Osorio-Arellanes was found guilty last February by a jury of 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. Each of the charges stem from his role as a member of a "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.
U.S. District Judge David C. Bury sentenced Osorio-Arellanes to life in prison for Terry's murder, and sentenced him to 240 months for each assault charge to be served concurrently, with another 120 months for carrying a firearm during a crime of violence to be served consecutively. Per a request from the U.S. Attorney's office, the charges of conspiracy and attempted robbery were dropped.
Osorio-Arellanes, or "Laco," is one of seven men charged with Terry's death. Five members of the group have been found guilty on various charges — four of them of murder, leaving un-tried only Jesus Rosario Favela-Astorga, who remains in Mexican custody but has yet to be extradited to the United States.
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, during February's trial.
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. Agent Fragoza testified 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.
Terry's family sued the federal government, but in 2016, the 9th Circuit Court of Appeals upheld a lower court's ruling that there are "congressionally-mandated remedies" that are already in place for the survivors of an agent killed in the line of duty.
Before the sentencing hearing began, a courtroom employee asked over the court's public address system for a moment of silence for U.S. District Judge John Roll and the others who were killed or wounded nine years ago when a gunman attempted to assassinate U.S. Rep. Gabrielle Giffords. At exactly 10:10, the court fell silent.
Bury, who arrived moments later, thanked the courtroom for taking the moment to show respect for his colleague, and said that Roll was "truly missed by our bench."
Twenty members of the BORTAC unit dressed in camouflage fatigues filled the courtroom and were joined by several other Border Patrol agents, including the Tucson Sector Chief Roy Villareal.
"Today brings us one step closer to justice for Agent Brian Terry’s murder," said Villareal in a statement released after the hearing. "The sentencing brings a painful time closer to an end and serves as a reminder of the grave dangers our agents face in their selfless commitment to the safety of their communities and country."
As part of the sentencing hearing, Terry's sisters Kelly Terry-Willis and Michelle Balogh spoke to the court, tearfully describing their brother as dedicated man, a "true American hero," who was preparing to come home to Michigan for the holidays. Terry-Willis said that rather than meet her brother at the airport, instead she was there to receive his "lifeless body" to arrive in a flag-draped casket.
"You would think that time would lessen the heartbreak, but it doesn't," she said.
Balogh said that her brother has "missed so much" since his death, including marriages, graduations. "He'll never be a husband, he'll never be a dad, we'll never have a sister-in-law," she said. She sobbed for a moment, and described how after Terry's funeral, she found a box on her front-porch full of gifts that her brother had mailed just before "going into the desert."
During closing arguments during Osorio-Arellanes' 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."
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, 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.
While Osorio-Arellanes has been regularly referred to as one the "gunmen" who shot Terry, 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.
In a filing, Osorio-Arellanes' defense attorney, Eréndira Castillo, a replacement for Francisco Leon who represented him at trial, said that the defendant was arrested in a "action movie-like show of force" at his home in Mexico in front of his wife and children, and that when he was interrogated his attorney was not present. Instead another attorney "unknown to Heraclio was present."
Leon had argued that Osorio-Arellanes' interview was "curiously secretly recorded" during the trial, and that the attorney in Mexico did not understand the charges.
During the trial, Leon argued that Terry's death was a "tragic case," because the agent 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.
Castillo argued Wednesday that she had the "unenviable task" of having to jump into the case, and that her client was "frustrated" with the case because he is from a small town in Mexico and is illiterate, and it's been "incredibly difficult" for him to understand the case. "He does not understand the procedures, the culture, he does not understand the language," Castillo argued. "He could not understand the rights available to him."
Osorio-Arellanes spoke in his defense, telling the court in Spanish "With all due respect, I don't agree with the trial. The prosecutors pointed to me as a murderer without any evidence so the jury would say I was guilty. Everything is being done illegally," he said.
Leschner replied that Leon had "zealously defended his client" and that "apparently" Osorio-Arellanes believes that he has done nothing wrong.
After the statements from Terry's sisters, Bury lectured Osorio-Arellanes about U.S. law. "I feel like I have to say to you what the law is in the U.S., but you refuse to accept it."
Terry, he said, was murdered, and "you are guilty of it."
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.
Osorio-Arellanes was arrested in 2017 by Mexican Marines on the border of northern Mexican states of Sinaloa and Chihuahua, while Favela-Astorga, the last remaining fugitive, was arrested in Mexico a few months later, and extradited to the United States.
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 2015, 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.
Outside the courtroom, Terry-Willis and Balogh said that she still felt that the Obama administration had left "her brother behind," and that still was not resolved for the family. "That's not resolved for us, because we still don't have all the answers, and all the truth."
Osorio-Arellanes' sentencing was a "step in the right direction, but this is totally different than Fast and Furious."
"There were the men who were out there that night, and there are the men that supplied the weapons to them that night," said Terry-Willis.