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Subpoena served in shooting

Official: Military plans to comply in border death

By Douglas Holt copyright The Dallas Morning News 06/25/97

EL PASO - Texas Rangers served the head of military anti-drug missions with a subpoena Tuesday, seeking key documents related to the shooting death of an 18-year-old goatherd, Ezequiel Hernandez.

Brig. Gen. James Lovelace, commanding officer of Joint Task Force-6, was asked to provide a long list of documents, including military notes, reports, witness statements and communications logs related to the May 20 shooting by Marine Corps Cpl. Clemente Banuelos.

With the delivery, investigators say they are closer to presenting a case to a grand jury.

Meanwhile, the shooting has set off discussion of whether the case would be removed to federal court if one or more Marines are indicted because of the shooting.

That could set up a conflict. On the one hand, the U.S. attorney's office is expected to begin a civil rights investigation into the incident. That would seemingly preclude the U.S. attorney from defending military personnel in a criminal case.

Already, the U.S. attorney's office in El Paso has taken steps to offer a potential solution. The office has passed the names of several defense lawyers to the Department of Justice should they be needed to defend the Marines, sources told The Dallas Morning News.

Sam Ponder, chief of the El Paso U.S. attorney's office, declined to comment on the report.

The subpoena delivery Tuesday capped more than two weeks of miscommunications, unreturned phone calls and bad blood between the Rangers and Joint Task Force-6, which coordinates military support for law enforcement agencies involved in regional drug interdiction.

But on Tuesday, both sides expressed a desire to cooperate in an investigation that has raised questions in some quarters about the military's role in fighting drugs.

"I can say we're cautiously optimistic about the military's cooperation in the investigation," said Texas Rangers Sgt. David Duncan, who is directing the agency's investigation. "I think their degree of cooperation will be reflected to the degree information is provided that was requested in the subpoena."

A military lawyer on Tuesday told the Rangers that federal law may preclude the military from handing over everything that was requested, Sgt. Duncan said.

Maureen Bossch, task force spokeswoman, faulted the Rangers for failing to return telephone calls from the military, but she said task force officials intended to cooperate fully.

"The military is committed to assisting law enforcement in their investigation," she said. "We're not trying to avoid anything."

But, echoing the comments of military officials at the Marines' base in Camp Pendleton, Calif., Ms. Bossch said that military officials believe no laws were violated during the shooting.

"All the reports we have indicate they fired within the rules of engagement, and that's not criminal conduct," she said.

Mr. Hernandez, who authorities said was not involved in criminal activity, was shot in the tiny border town of Redford near Big Bend.

Military authorities have said Cpl. Banuelos shot in self-defense after Mr. Hernandez fired his weapon. The Rangers have noted discrepancies in military's version of events, saying that evidence indicates the young man's rifle was pointed away from the Marine unit when he was shot.

The subpoena identified the three other Marines in the surveillance unit with Cpl. Banuelos as James Blood, Roy Torrez Jr. and Robert Wieler.

The Rangers have subpoenas for two other military officials, but they could not be served Tuesday because one was not there and the other is based in California.

Usually, serving a subpoena is a routine law enforcement task requiring a few minutes. In this case, setting an appointment took weeks and serving the subpoena took hours.

District Attorney Albert Valadez signed the subpoenas more than two weeks ago, on June 5.

Since then, Sgt. Duncan said he has attempted numerous times to make an appointment with the Provost Marshall's office in Fort Bliss near El Paso, where the joint task force is located.

Typically, the Provost Marshall sets an appointment for the server to meet the subpoena recipient. At the appointed time, the subpoena is read aloud and handed over.

On Friday, Sgt. Duncan called to announce he would be there at 10 a.m. Tuesday.

Accompanied by C.J. "Buster" Collins, a Rangers sergeant in El Paso, Sgt. Duncan entered the Provost Marshall's office at the appointed time, wearing cowboy boots and the tan uniforms of the Rangers.

The person they came to see, Staff Sgt. Juan Valadez Jr., wasn't there. A man in green camouflage, who declined to give his name, ordered a driver to take the Rangers to the base's Staff Judges Advocate's office, where the subpoena process "would be explained."

But there, clerks who said they had no idea the Rangers were coming, directed the Rangers to the Joint Task Force-6 offices on the other side of Fort Bliss.

As the Rangers got back in their car, Staff Sgt. Valadez came up and apologized for the confusion. "We hit a wall in that loop over there," he said, apparently referring to the task force.

By this point, almost an hour had passed and the Rangers were clearly frustrated. "We wouldn't have to exert this type of effort if they would've just cooperated as we would expect from a governmental entity," Sgt. Duncan said.

A reporter was barred at the gate of the Joint Task Force-6 facility. But the Rangers returned nearly two hours later, considerably more upbeat.

Even reading the subpoena to the commanding officer didn't go so badly, Sgt. Collins said. "He was very cordial, and very professional," Sgt. Collins said of Sgt. Duncan.

This article copyright 1997 the Dallas Morning News and is reproduced for non-profit educational purposes only.

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