'INSUFFICIENT EVIDENCE' ON MARINE

Federal inquiry closes in border shooting

WASHINGTON -- The Department of Justice said late Friday that it found
"insufficient evidence" to prosecute a Marine who, while on anti-drug
patrol along the U.S.-Mexico border, fatally shot a teen-age goat herder.

The department issued a statement saying it was closing the books on its
investigation of the May 26, 1997, shooting death of Esequiel Hernandez Jr.
near Redford, a rural Texas community about 200 miles east of El Paso.

Cpl. Clemente Banuelos, who was on patrol with three comrades near the Rio
Grande, said he shot Hernandez, 18, as Hernandez was tending his family's
goats near their home. Banuelos has said he shot Hernandez because the goat
herder had twice fired his .22- caliber rifle at the Marines and was
preparing to shoot again.

At the time of the shooting, the Marines were wearing camouflage and
carrying assault weapons. Banuelos, who was following military "rules of
engagement," shot Hernandez once with an M-16 rifle.

"There was insufficient evidence to rebut Cpl. Banuelos' claim that he shot
Mr. Hernandez because he thought that Mr.

Hernandez ... was about to shoot another Marine," the Justice Department said.

Jack Zimmermann, a Houston attorney who represents Banuelos, said the
Marine, who is still on active duty at Camp Pendleton, Calif., was relieved
to learn of the Justice Department decision.

"As you can imagine, his life has been in turmoil for almost a year,"
Zimmermann said.

"I want to emphasize again that this matter was a tragedy. We don't want to
lose sight of that," said Zimmermann, who was hired by the Justice
Department to represent Banuelos when he was under investigation by state
authorities. Zimmermann, an ex-Marine, says he has represented Banuelos
without fee during the federal inquiry.

Zimmermann said the proper course now is for federal officials to study the
use of military patrols along the border and to devise policies to "to
prevent a recurrence" of armed confrontations between local residents and
heavily armed infantrymen.

The Defense Department temporarily ended armed military patrols along the
border following the incident. The Pentagon is expected to announce soon
whether patrols will be resumed.

Although the federal government has closed the books on the case, Banuelos
is not yet out of the legal woods.

U.S. Attorney Bill Blagg of San Antonio said the bulk of the federal
government's findings would be forwarded to Presidio County District
Attorney Albert Valdez to consider in deciding whether to reopen the
state's investigation.

A Presidio County grand jury last year declined to indict Banuelos.

Meanwhile, Hernandez's family -- represented by Pecos lawyer Bill Weinacht
- -- is pursuing a negligence claim against the government. Weinacht said the
family will decide later whether to amend its complaint to seek monetary
damages from Banuelos.

Copyright 1998 Houston Chronicle Washington Bureau