Suspects in the killing of U.S. Border Patrol agent Brian Terry were deported from the United States three times in the year before the Dec. 14 shooting, says an indictment unsealed Friday.
Defendants were deported in February, June and October 2010, the indictment shows.
Manuel Osorio-Arellanes, 34, from El Fuerte in northern Sinaloa, became the first person formally charged with the murder when he was arraigned Friday. Although he was arrested at the scene of the agent's killing, Osorio-Arellanes had previously been charged only with re-entry after deportation.
He was deported last June before returning with a group of people who exchanged gunfire with four Border Patrol agents west of Rio Rico, the indictment says. The fact that he had recently been deported is irritating to Border Patrol agents but not surprising, said Brandon Judd, president of National Border Patrol Council Local 2544, the union representing agents in this area.
"It's just like any other law that's on the books," Judd said. "If the criminals aren't afraid of the law, what prevents them from violating the law?"
Osorio-Arellanes was not the person who shot Terry and is charged with second-degree murder, the indictment says. That disappointed Terry's brother, Kent Terry.
"I wish it was more than second-degree murder to be honest with you," Terry said.
Two days after the shootout, on Dec. 16, Osorio-Arellanes agreed to talk to FBI agents without an attorney present, an FBI search warrant affidavit says. He told them he was traveling with four others that night, all of whom were armed, the affidavit says.
"Osorio-Arellanes stated that he had raised his weapon towards the Border Patrol agents, but he did not fire because he realized that they were Border Patrol agents," the FBI search warrant says. "At this time, he was shot."
Osorio-Arellanes is not the only person charged in the indictment, but the names of his alleged co-conspirators remain sealed, federal prosecutors said. The person accused as the shooter is still at large.
The FBI investigation remains open, and officials are still searching for the others, said Robbie Sherwood, spokesman for the U.S. Attorney's Office in Arizona.
Osorio-Arellanes is also charged with conspiracy to assault a federal officer; use and carrying a firearm in furtherance of a crime of violence; possession of a firearm by a prohibited person and re-entry after deportation. Co-defendants whose names remain sealed were deported Feb. 25 and Oct. 19, the indictment says.
Terry, 40, of Michigan, was a member of a specially trained tactical unit known as Bortac. On the night of the shooting, Terry and his crew were targeting a "rip crew" that robbed and assaulted drug runners and illegal immigrants, Homeland Security Secretary Janet Napolitano has said.
Terry and fellow Border Patrol agents shot nonlethal beanbags at the group first before the men returned fire, killing Terry with a single gunshot, the FBI search warrant affidavit says. Alan Bersin, Customs and Border Protection commissioner, said the agents' initial use of the beanbags was not mandated by agency policy, which allows agents to determine whether to use deadly or nonlethal force based on the threat.
Four men were arrested that night in the area of the shooting but three of them were cleared of any connection to the shooting and deported to Mexico in February on illegal re-entry charges.
Osorio-Arellanes had previously been arrested by the Border Patrol on June 8, 2010, near Nogales, federal court records show. He also has a criminal record in Maricopa County: In 2006, he pleaded guilty to aggravated assault, and in 2003, he pleaded guilty to resisting arrest.
Two Romanian-made assault rifles were recovered at the scene and are believed to belong to the suspects. Osorio-Arellanes is accused of having one of the rifles and 25 rounds of ammunition.
U.S. Sen. Charles Grassley, R-Iowa, is leading an inquiry into whether one of the rifles was sold to straw buyers as part of a Bureau of Alcohol, Tobacco, Firearms and Explosives investigation into smuggling guns to Mexico.
Officials also recovered five backpacks, three gloves, two sweat shirts, a pullover, a jacket, a knit hat, a baseball cap and a razor. They took hair from Osorio-Arellanes to compare to any hairs found on the clothing items, the search warrant said.
Terry was the 10th agent to die on duty in the Border Patrol's Tucson Sector since 1926 and the first agent shot to death in the sector since Alexander Kirpnick was killed northwest of Nogales in 1998. Terry was buried in his hometown near Detroit on Dec. 22, and hundreds attended a January memorial service in Tucson.