SUBPOENA PLANNED IN BORDER SHOOTING

Congressman vows legal action to get Justice Department files on death
of Esequiel Hernandez

WASHINGTON -- Frustrated with the answers he has received so far, Rep.
Lamar Smith, R-San Antonio, said Tuesday that he will seek to subpoena
the Justice Department for more information about the shooting death
last year of a Texas teen-ager by U.S. Marines patrolling the border
with Mexico.

Esequiel Hernandez Jr., 18, was shot to death a year ago today while
he was tending his family's goats near the border town of Redford,
about 200 miles southeast of El Paso. The Marines have said Cpl.
Clemente Banuelos shot Hernandez after Hernandez fired his .22-caliber
rifle in their direction while they were working with the Border
Patrol during routine anti-smuggling operations.

Smith, chairman of the House immigration subcommittee, has been
waiting for almost a year to convene a hearing on the shooting to
examine the Border Patrol's oversight of the Marines. Smith delayed
the hearings at the request of Attorney General Janet Reno while
criminal investigations were under way. Those investigations ended
more than three months ago without any charges, and Smith said he is
now entitled to answers.

"The Border Patrol was supposed to brief the Marines, supervise them
and respond to emergencies," Smith said. "But that didn't help
Esequiel Hernandez."

The Marines "didn't yell either a greeting or a warning" after they
encountered Hernandez, Smith said Tuesday. "Instead, one of the
Marines radioed their command center and said they were "taking him'
if he raised his gun again. The response was, "Roger. Fire back.' "
Smith said he obtained the information from radio logs provided by the
Marines, but he wants more from the Justice Department, which is the
parent agency of the Border Patrol.

"The Justice Department refuses to provide basic documents like the
written statements made by the Marines and Border Patrol agents
involved in the killing and even refuses to allow those agents to be
interviewed," Smith said. "Unless the requested documents and
explanations are immediately forthcoming, Thursday morning I will seek
subpoenas to force the Justice Department to disclose those facts to
Congress and the American people."

Justice Department spokesman Myron Marlin said he couldn't comment on
whether the Justice Department would deliver more information in time
to head off Smith's plans to seek subpoenas.

"We produced some documents back in August for the congressman, but we
were engaged in an ongoing criminal investigation at that time,"
Marlin said. "We're at this point reviewing a significant number of
documents to be sure that we don't release any grand jury-protected
information."

Marlin said that cooperation with Smith's inquiry was delayed by two
separate grand jury investigations of the shooting. A Presidio County
grand jury found no grounds for criminal charges against Banuelos in
August. A federal grand jury convened in December to consider possible
criminal violations of Hernandez's civil rights but ended its work in
January without returning charges.

Smith needs a majority vote of the 12-member immigration subcommittee
for authority to issue subpoenas. He leads a majority of seven
Republicans on the committee but said he hopes for a bipartisan vote
if the subpoenas must be issued.

"I have had two briefings and have written the Justice Department five
letters asking for information, but I am still waiting for more
answers," Smith said. "Apparently, we can no longer rely on the
good-faith cooperation of the Justice Department."

Checked-by: trikydik@inil.com (trikydik)