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Cochise County: No charges vs. Border Patrol agent who shot & killed migrant

Cochise County: No charges vs. Border Patrol agent who shot & killed migrant

  • The border wall east of Douglas, Ariz. near Geronimo Trail Road in June 2021.
    Paul Ingram/TucsonSentinel.comThe border wall east of Douglas, Ariz. near Geronimo Trail Road in June 2021.

The Cochise County Attorney's Office will not pursue charges against the Border Patrol agent who shot and killed a Mexican man during a violent incident in rugged terrain near the Arizona-New Mexico border in February.

Border Patrol Agent Kendrek Bybee Staheli fatally shot 32-year-old Carmelo Cruz-Marcos during a confrontation on a moonless night on Feb. 19. Cruz-Marcos, originally from Puebla, Mexico, was part of a group of about 10 people who attempted to skirt through the Peloncillo Mountains about 121 miles east of Tucson, where they were located by two agents. 

Staheli and his partner Agent Tristan Tang were assigned to horse patrol, and spent most of the day tracking a group of suspected migrants, managing to catch up with at least seven people, who immediately scattered as the two men closed in on rough terrain full of scrub and loose rocks.

Staheli told investigators with the Cochise County Sheriff's Office — who led the investigation after the FBI demurred — that when he attempted to apprehend Cruz-Marcos, the man threw a punch, which glanced off the agent's shoulder and hit him in the jaw. The two men struggled, and eventually Cruz-Marcos broke free, and picked up a rock.

Staheli told investigators that as Cruz-Marcos cocked an arm back to throw the rock, he fired his weapon an "unknown number of times." Staheli fired four rounds from his 9mm Glock 19, hitting Cruz-Marcos twice in the face and twice in the chest. Tang told investigators he did not see the shooting, but told detectives he could hear Staheli struggle with Cruz-Marcos before he fired his weapon. 

Seven men were eventually apprehended, and according to investigators, they did not see the altercation between Staheli and Cruz-Marcos. However, two men told CCSO detectives that before the shooting, Staheli threatened one man, telling him "Shut up or I will shoot you." Multiple witnesses said that Staheli told another man, "This is America, motherfucker."

County investigators said the agent's shooting of Cruz-Marcos was "justified."

The death of Cruz-Marcos drew calls for an independent investigation from a law firm representing Cruz-Marcos' family, as well as complaints about the involvement of a Border Patrol Critical Incident Team—agents trained in forensic science who routinely arrive at major scenes and gather evidence. Advocacy groups have argued Critical Incident Teams are designed to "mitigate civil liability for agents," and act as "cover-up units, protecting agents rather than the public."

In particular, advocates blasted the involvement of CITs in this most recent shooting, arguing that Border Patrol agents  "prevented" deputies and detectives from the CCSO from reaching the scene.

Last week, Chris Magnus, the commissioner of U.S. Customs and Border Protection—Border Patrol's parent agency—announced that CITs will be disbanded and that investigation and evidence collection will be handled by the agency's Office of Professional Responsibility. Magnus, the former Tucson police chief, has pushed for changes within CBP and said that by October 1, 2022, CITs will be "eliminated" following public pressure.

"After review of all the available evidence, Agent Staheli’s actions appear to be justified under Arizona law," said Cochise County Attorney Brian McIntyre. He noted that under Arizona law, the use of deadly force by a peace officer against another is justified, "only when the peace officer reasonably believes that it is necessary" to defend himself or a third person from what they reasonably believes is the "imminent use of deadly physical force."

"In addition, law enforcement officers are entitled to the same self-defense protections of any other individual in Arizona," McIntyre added. "In any prosecution that involves a self-defense claim in Arizona, the state is required to prove beyond a reasonable doubt that the conduct was not justified, rather than it being an affirmative defense with the burden on the defendant."

"There is insufficient evidence contradicting the agent’s explanation of the events in question to meet this high burden," he wrote. "Indeed, the evidence appears to support the agent’s version of events."

McIntyre noted that "no person, other than Staheli observed the physical altercation between him and Carmelo," adding that the agent's statement "he only fired after Carmelo picked up a large rock and appeared to be ready to strike him with it is not contradicted by any physical evidence at the scene."

McIntyre also rejected the statements from other migrants apprehended by the two agents. "While two witnesses who have a familial relationship indicated they heard a particularly unusual statement uttered by Staheli prior to the shooting, no other witness reported this information and Staheli’s reported emotional state after the shooting strongly cuts against this claim."

While CCSO has finished its investigation, CBP's Office of Professional Responsibility will review the shooting, along with Office of Inspector General with Homeland Security. Similarly, the National Use of Force Review Board — established in 2014 by the Obama administration — may also  review the shooting if there are no prosecutions from federal or local authorities.

The Mexican consulate decried the shooting, and the man's wife described Cruz-Marcos as a "gentle and peaceful man trying to provide for his family." Border Patrol records showed that Cruz-Marcos crossed into the U.S. at least one other time.

Staheli's partner describes scene

In a 28-page report released by Cochise County on Tuesday, Detective J.C. Hoke described the early hours of the investigation, as well as statement from both Staheli and Tang.

Tang described to Hoke how he and Staheli spent hours tracking the group, working their way through low-scrub and rocky terrain, trailing after the men. While the two agents had horses, they often preferred to walk because of the rocky ground, and around 8 p.m. they manged to hear the group whispering. As the agents closed in, they heard breaking branches "in what was an attempt to flee," Staheli told Hoke.

Tang grabbed one man dressed in camouflage, and another man immediately surrendered, he said. Meanwhile, Staheli apprehended another man. With three men cuffed, the two agents decided that Tang should climb a nearby rise, and use night-vision googles to guide Staheli to additional people. From the rise, Tang said he spotted another man in the brush, and he sent Staheli  toward him.

Tang told the detective that he lost sight of Staheli, but he believed the agent had caught the man and "was struggling to take him into custody."  According to Hoke, Tang described how he called out to his partner to ask him if he was OK, and Staheli's voice became louder and he "continued to tell" Cruz-Marcos to put his hands back, "but it appeared he continued to be uncooperative."

Tang said he heard brush breaking "as if a struggle ensued." Tang decided to leave the three men and head to Staheli, telling Hoke he heard Staheli call his name, "like a cry for help and he believed Agt. Staheli was now in distress."

He worked his way down the slope, and then heard multiple gunshots. As he approached, he asked Staheli if he was OK, and Staheli replied "he was good." Tang arrived and found Staheli standing near Cruz-Marcos, who was laying face-up on the ground covered in blood, Hoke wrote.

Tang told the Cochise County detective that he asked Staheli what happened, and the agent replied that Cruz-Marcos had a "big rock" and was going to "either smash him with it or throw it at him."

"He said he could not remember anything more," Hoke wrote. Tang cut away some of the man's clothes, and discovered that Cruz-Marcos was dead. So, he told Staheli to move away from the body. Tang told Hoke that Staheli was "obviously shaken and asked him to hold him," and Tang said "of course" and held him for a few moments," Hoke wrote. 

Tang and Staheli waited for two hours, before agents with the Border Patrol Tactical Unit, or BORTAC, and agents with Border Patrol Search Trauma and Rescue, or BORSTAR, arrived to secure the scene and render medical aid.

Along with the elite agents, Supervisory Border Patrol Agent Stanley arrived, and other agents tracked down four more men in the surrounding brush.

'He tried to kill me'

Notably, while Cochise County detectives interviewed Tang right after the shooting, they could not interview Staheli until 72 hours after the incident because of the Border Patrol's union rules. Instead, Hoke and CCSO Sgt. Gjerde interviewed Staheli on Feb. 23 at the Office of Professional Responsibility's office in Tucson.

Along with Staheli was Jim Calle, a lawyer who works for the agency's union and has regularly defended BP agents in court. Calle was one of two lawyers who successfully defended Lonnie Swartz, the Border Patrol agent who shot and killed 16-year-old Jose Antonio Elena Rodriguez in a cross-border shooting in Nogales more than nine years ago. Calle also defended Matthew Bowen, a Border Patrol agent facing assault charges for using his vehicle to knock a man to the ground during an incident in 2017 near Nogales. Bowen eventually agreed to a plea deal rather than face a jury trial.

Staheli told Hoke he began his law enforcement career at the St. George Police Department in Enterprise, Utah, and spent 10 months on the job before he decided to join the Border Patrol. After his training, he was sent to Douglas in 2019, and he joined the horse patrol in 2021.

Staheli told Hoke he and Tang began working at 1 p.m., and headed into the area by 2 p.m., looking for sign along Geronimo Trail Road—a largely dirt road which runs from the Douglas Airport to the Arizona-New Mexico border.

Staheli told Hoke they worked up to milepost 390 of the Geronimo Trail, and then began "cutting sign" by the Lazy J Road. At this point, they first received a radio call telling them there was a group in the area, and a Buckeye remote camera sensor had been activated.

In a description written by Hoke, one man appears in an image from the trail camera, dressed in camouflage and carrying a large backpack.

Staheli was told the sensor detected 10 people. While the agents had horses with them, they decided to track on foot rather than remove the horses from the stock trailer.

Tang found signs that people had passed through the area, Staheli said, as well as carpeted shoes used to disguise footprints.

The two men continued working and the group set off a second sensor, which showed 10 people crossing a dry wash. By this time it was dark, Staheli told Hoke, and there was no moonlight so it was "very dark" by 8 p.m. as the two agents struggled over difficult terrain. Eventually, they found a spot where the group had stopped to rest, and decided to dismount from the horses because of the rocky terrain. At one point, Tang separated from Staheli, giving him the horses while he looked for tracks, and he managed to hear the group.

Tang used his night-vision goggles to spot the men, and the agents moved in. Staheli told the Cochise County detective that the agents didn't try to be stealthy. Rather they had their flashlights on, and the horses hooves made loud noises when they walked through the brush. When they got within 20 yards, the group broke and ran.

Staheli said he passed one man, and ordered the man to give up. The man stayed on the ground, and complied when Staheli told him to remove his shoelaces.

He later saw two men running, so he chased after them. Staheli told Hoke that while running after the man, they would both lost their footing, tripped and fell. Eventually, he caught up with one man and managed to apprehend him. Staheli escorted him back, and met with Tang who managed to catch another man in the dark.

As they cuffed the men together, Tang climbed a hill to look for more people. And, he quickly spotted another man, Staheli said. Directed by Tang, who was watching the man through night-vision goggles, Staheli closed in, but he ran, rushing through the bushes. Staheli told Hoke that though it was dark, he could see branches swinging as he followed Cruz-Marcos.

The man appeared to fall, and when Staheli got close enough the man threw a punch. Staheli said Cruz-Marcos was wearing older military-style camouflage, not the pattern usually used by people crossing the border. He was shorter and heavier than Staheli, and had facial hair, the agent said.

An autopsy showed Cruz-Marcos was 5-feet, 4-inches tall and weighed 159 pounds. Detectives did not describe the agent's height and weight, but one of the apprehended men described him as tall.

Staheli told Hoke the group "appeared like a team" who "knew the terrain well and have done this before."

"He said from what he has learned on patrol, he has seen that groups like this are more willing to fight in order to get away," Hoke wrote. "He said that this type of group generally works for the cartel to move drugs."

Officials discovered at least one backpack, but did not find drugs. Further, the men told detectives they were carrying food and water as they hiked through the desert.

Staheli said Cruz-Marcos threw a right, and his fist glanced off his shoulder and hit him in the jaw.  "He said now seeing he was actively being assault he tackled the subject and landed on the ground," Hoke wrote.

The two men fell. Cruz-Marcos fell face first with Staheli on his back. Staheli said that with the man's hands pinned beneath him, he "became very nervous" worrying that Cruz-Marcos might have a weapon. Staheli said he ordered him to put his arms behind his back, but Cruz-Marcos "failed to comply," and they continued to wrestle on the ground.

As Staheli told Hoke, he began to worry more because he was getting tired, and Cruz-Marcos was "larger than him," and could "overpower him if he didn't get him into custody."

The agent told detectives he was still worried Cruz-Marcos had a weapon in his waistband, and thought he could be encircled by the other members of Cruz-Marcos' group. "He said if that happened, he would be outnumbered," Hoke wrote.

Staheli said he hit Cruz-Marcos in the face, and Cruz-Marcos reacted by bucking, finally throwing Staheli off his back. The autopsy shows that Cruz-Marcos suffered a laceration and bruising on his nose and right cheek. And, he had bruising on his chest.

Staheli told people he injured his hand, and a medical examination of Staheli shows he had deep bruising on his hand. However, an X-ray came back normal, the detectives wrote.

Staheli told Hoke Cruz-Marcos "moved forward" and got downhill, and then after moving away for a moment, he appeared to scan for a rock, eventually choosing one.

Staheli described the rock as seven to 10 inches long, oval-shaped and "bigger than a softball." As Cruz-Marcos stood six to seven feet away, he faced the agent, and then "rears his arm back in what looks like an attempt to throw the rock at him."

While they were in the dark, Staheli told the detective he could see Cruz-Marcos' gesture because of his head-lamp. "He said when the subject cocked his hand back he believed he was going to throw it directly at him," Hoke wrote. "He said he thought the subject was attempting to kill him."

Staheli drew his pistol and fired "many rounds, but he could not recall how many," Hoke wrote.

The autopsy showed that Cruz-Marcos's chest was filled with blood, and one shot to his face shattered his teeth. As officials noted, his teeth were "received in a separate bag."

"He said the subject dropped to the ground," Hoke wrote. "He holstered his weapon and advised 866, the Douglas station, that he was just involved in an officer-involved shooting."

In his summary, Hoke wrote further investigation on scene "revealed numerous rocks on the ground," ranging from small to large — a few inches to "numerous" inches and "certainly capable of causing injury or death to a person if struck by one."

"Although, the exact rock which Agent Staheli described as being used by Carmelo was not recovered," Hoke wrote in a supplemental. However, "many rocks were noted in the area," he wrote.

"Based off of evidence at the scene, trajectory and angle of shots fired into Carmelo's body, and statements taken from the agents and witnesses it appears Carmelo was the aggressor in this incident. It appears his actions subsequently led Agent Staheli to protect himself and subsequently result in his death," Hoke wrote.    

Cruz-Marcos will 'haunt you for the rest of your life'

Detectives interviewed the five men apprehended at the scene. Two men, Carlos Juan Torres-Peralta and Irving Torres-Peralta both said they heard Staheli warn one of the apprehended men, "I will shoot you," and "You're in America, motherfucker."

However, as Hoke wrote, "none of their companions heard those statements."

Detectives also interviewed Filomeno Ruiz-Martinez, Horaldo Jimenez-Cruz and Ricardo Huerta-Nepomuceno. 

One man told detectives after they crossed into the U.S. their guide abandoned them, and they were carrying only food and water.

Torres-Peralta said he lived in the U.S., and was trying to return to Jefferson, Wis., where he had a girlfriend and children. However, Hoke dismissed his complaints, arguing that the man had been "not truthful" about understanding English. "It appears to me he is more fluent in English than he led us to believe.  Torres-Peralta also said that the agents had "repositioned" Cruz-Marcos' body and said the agents discussed how they should "follow up with statements and not say anything to anyone."

Torres-Peralta also said he heard Tang tell Staheli he should say he was attacked with a rock, adding "it will be OK" and "he had his back."

Hoke said  this information was given to Special Agent Chiriguayo with OPR two days after Torres-Peralta's first interview.

In his own interview, Staheli said he went back to the rock ledge, about 50 yards from the shooting, and sat by the other men. One man asked Staheli why he shot Cruz-Marcos. Staheli said he told the man "because he tried to kill me."

The man told him in English he wasn't going to sleep well because Cruz-Marcos' spirit was going to follow him, and "that he would haunt you for the rest of your life, you better watch your back," Staheli said.

Hoke at scene with CIT

In a supplement to the report, Sgt. John Gjerde noted the complications in getting to the scene. The closest access road was within one mile of the Arizona-New Mexico border, and Gjerde confirmed the FBI would not investigate the shooting.

Gjerde said he knew the terrain was rugged and contacted CCSO's Search and Rescue coordinator, and figured out the best way to get to the scene would be an Arizona Department of Public Safety helicopter. However, a helicopter wouldn't be available until 8 a.m. the next morning. Gjerde said he confirmed with Hoke the "scene was secured and Border Patrol was holding the scene until we could get there."

Hoke, however, was at the scene with CIT processing the scene. While Hoke was there, the CIT agents were "changed out" and a new team arrived.

CIT agents photographed the scene and used a 3D laser scanner—which sends pinpoints of light to measure and create a computer diagram of a space—to create a scene diagram. As Gjarde described it, Cruz-Marcos was on the ground, and his clothes had been cut all the way down to his hiking boots. Border Patrol paramedics had left heart monitor pads on his chest and lower abdomen.

As agents photographed the scene, they found several small blood spots on rocks on the ground. Gjerde also said there was a "piece of meat/bone or tooth" located near the blood droplets.

Along with CIT agents, an agent with OPR J. Gage, was on scene. Gage found one shell casing, and a second shell casing was found by K. Haller, a CIT supervisor.

After officials collected the evidence, they flew Cruz-Marcos' body to a nearby funeral home in Douglas.

Family calls for independent investigation, may file lawsuit

The Los Angeles-based law firm Karns & Karns, LLP said in mid-April they will represent Cruz-Marcos' family, adding his "brutal shooting" should be probed by the FBI and an outside agency, and they criticized the involvement of Border Patrol agents in the early hours of the investigation.

They also said they are moving to file a federal tort claim within "two weeks"— a precursor to a lawsuit against the federal government. The lawsuit has not been filled according to a search of court records, and Karns & Karns did not respond to a request for comment following the announcement by Cochise prosecutors that they will not pursue charges against the agent.

Karns & Karns argued in the involvement of a Critical Incident Team presented a "glaring conflict of interest," and "the Border Patrol fosters an environment of vile and racist behavior towards migrants and should not be allowed to police themselves."

Among their arguments, the law firm said Border Patrol agents "prevented" Cochise County officials from "immediately accessing the scene to conduct their own investigation," citing a long delay between the shooting and the recovery of the man's body the next morning.

"Witnesses to the shooting say Carmelo was never a threat to any Border Patrol agent," wrote Karns & Karns in a news release. "The family is demanding an independent investigation of the incident by the FBI and an outside agency that can verify the evidence and facts."

"As it stands, the investigation also involves them, and doesn't sound like an independent investigation to me."
Karns said while the sheriff's department is investigating the shooting, the involvement of OPR and Border Patrol's own investigators means the sheriff's office investigation is not "truly independent."

"As it stands, the investigation also involves them," Karns said, "and that doesn't sound like an independent investigation to me."

"I'm also not convinced that Cochise County is truly independent—sheriff's departments, God bless them; they're still police and they tend to look out for each other," he added.

The Mexican consulate condemned "any act of unjustified violence against migrants." They added consulate staffers interviewed the migrants who were taken into custody, and would be monitoring the situation.

Karns & Karns argued Border Patrol and CBP "have a history and culture of violence and secrecy," adding federal officials "must answer questions about how Border Patrol agents failed to deescalate the situation" and "why the use of force was deadly."

"My husband was a gentle and peaceful man trying to provide for his family," said Yazmin Nape Quintero, Cruz-Marcos' wife. "He would never threaten the Border Patrol, and it is despicable for the Border Patrol to claim that he did. We seek to clear his name, and we seek justice so other families won't suffer like we are suffering."

Cruz-Marcos had crossed into the U.S. at least one other time, the Border Patrol told Hoke. But, it's not clear when he was deported, or why.

He left behind three small children, ages nine, eight and two, the law firm said.

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