Three men charged with crossing firearms into the United States from Mexico saw a judge for the first time on Thursday morning in Alpine, who ordered them detained without bond. Edgar Berrios Najera, Misael Hernandez Rodriguez and Braulio Murillo Tavarez were taken into custody June 27 after being apprehended by Border Patrol agents, who later discovered “AK-style rifles” and ammunition near the scene of the arrests.
The three men were charged with “possession of a firearm by an alien unlawfully present in the United States” under a statute that typically applies to people who are not allowed to have firearms because they have committed other felonies. The average sentence for crimes in this category is 72 months, per the United States Sentencing Commission.
Customs and Border Protection (CBP) took to social media before the trio appeared in court to celebrate the arrest. In a post that has since been edited, the agency described the three men as “heavily armed cartel members wearing camouflage” apprehended just outside of Presidio.
National representatives for the Department of Homeland Security (DHS) saw the case as a big win for the agency. “These illegal aliens from Mexico illegally crossed the border with assault rifles and ammunition,” DHS Acting Assistant Secretary Lauren Bis wrote in a press release. “Thanks to the swift work of the U.S. Border Patrol and our partner agencies, these three criminals failed to get into our country and will not be able to threaten the American people. Under President Trump’s leadership, our borders are secure.”
When the three appeared before Judge David Fannin on Thursday morning in federal court, there appeared to be a number of inconsistencies between CBP’s original social media post and the facts of the case. In the criminal complaint, Special Agent Mashaun Montgomery of the Bureau of Alcohol, Tobacco and Firearms (ATF) explained that the three men were not apprehended all at once — Berrios and Hernandez were traveling together, and Murillo, described as working as a lookout for “the cartel” who had previously been deported, spotted the two on the American side of the border and decided to follow them. (The criminal organization Murillo claimed to be working for is not named in court records.)
All three men admitted through the course of being interviewed by law enforcement to having brought weapons into the U.S.: two American-made Kalashnikov rifles and one “AR-style” rifle, as well as two magazines containing 53 rounds of ammunition. The serial numbers on all three weapons had been scratched out. None of the men were actively holding or carrying the weapons at the time that they were arrested — Tavarez said he had ditched his gun in the brush to get around more easily in the scrubby terrain.
U.S. Border Patrol Agent Joel Velez took the stand on Thursday morning to answer questions from Jimmie Holloway, representing the United States, and Jaime Escuder, Walter Herman, and Bart Medley, representing Berrios, Hernandez and Murillo, respectively.
Throughout the course of Velez’s testimony, a few more details emerged: Berrios and Hernandez, the two men who were traveling together, worked at a tire shop together in a small town in Durango. Murillo, who entered the United States to follow them, was from the state of Chihuahua. The first call to the Border Patrol came from a local rancher, who had spotted the men about 30 miles west of Presidio on FM 170 — not right outside of town as originally claimed.
Velez said the men were in rough shape when found. “It looked like they had been walking all day — they were pretty tired,” he testified.
No clarifying questions were asked about any of the three men’s affiliation with “the cartel.” Over the past few years, La Línea, the cartel that claims the area around Ojinaga as its turf, has had a major shakeup in leadership after the arrest of convicted boss Sergio Menchaca Pizarro and appears to be fighting off incursions from groups in neighboring Mexican states. Groups like La Línea operate cross-border smuggling routes for goods and people, sometimes mixing the two operations. It’s unclear from court records whether the Berrios and Hernandez, who admitted to having been given weapons by a criminal group, were rank-and-file members of a gang or clients asked to do a dangerous favor in exchange for safe passage into the United States.
The Western District of Texas sees far more convictions for folks trying to traffic weapons from the United States, where firearms are legal and easy to obtain, than for people who cross weapons from Mexico, which has strict gun laws. At Thursday morning’s hearing, attorneys for the defense appeared confused about why the government had chosen to build a case on a relatively rare crime, as opposed to a run-of-the-mill illegal entry or re-entry charge, which represent the bulk of the local federal court’s criminal caseload.
Federal Public Defender Jaime Escuder, representing Berrios, also raised the question of what it means to “possess” a firearm, an issue that has rankled federal courts over the past few years. In the American legal system, you can possess something “actually” — you’re holding it in your hand — or you can possess something “constructively,” meaning it’s not quite so cut-and-dried but the court can trace the object to you by circumstance.
Escuder pointed out that none of the three men were holding weapons at the time they were arrested — indeed, Murillo’s gun wasn’t even found until the day after — and that no one in the field or in the lab had run them for the defendants’ fingerprints. He was also concerned about his client’s testimony in his interview with Montgomery and Velez that he was “not knowledgeable” about guns, as a clear case of possession requires both know-how and intent. “As charged, I don’t think the government has met its burden,” Escuder said.
Judge Fannin agreed that the government would have a tough time establishing either type of possession. “It’s a pretty close case on both, I think,” he said.
Customs and Border Protection’s Big Bend Sector did not respond to a request for comment for this story.
