Marin v. US

• Decision Date: 03 September 1992
• Docket Number: No. CR-91-135-JLQ.,CR-91-135-JLQ.
• Citation: 814 F. Supp. 1468
• Parties: Alfredo MARIN, as Personal Representative of the Estate of Maria Marin-Bobadilla, and Alfredo Marin, as Guardian of Robert Vargas Marin, Victor Vargas Marin and Jose Vargas Marin, minors, Plaintiffs, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — District of Washington

814 F. Supp. 1468

Alfredo MARIN, as Personal Representative of the Estate of Maria Marin-Bobadilla, and Alfredo Marin, as Guardian of Robert Vargas Marin, Victor Vargas Marin and Jose Vargas Marin, minors, Plaintiffs, v. UNITED STATES of America, Defendant.

No. CR-91-135-JLQ.

United States District Court, E.D. Washington.

September 3, 1992.

Lou Delorie, Wiley Hurst & Associates, Yakima, WA, for plaintiffs.

Carroll Gray, Asst. U.S. Atty., Spokane, WA, Nancy E. Friedman, Stephen E. Handler, Trial Atty., U.S. Dept. of Justice, Torts Branch, Civ. Div., Washington, D.C., for defendant.

MEMORANDUM OPINION AND FINDINGS OF FACT AND CONCLUSIONS OF LAW

QUACKENBUSH, Chief Judge.

This matter came regularly on for trial by the court on the 17th day of June 1992. The Plaintiffs appeared personally and with their attorneys, Lou DeLorie and Patrick J. Morrissey. The Government was represented by Steven Handler, Trial Attorney of the Civil Division of the United States Department of Justice.

Evidence was introduced and the court heard the argument of counsel. The court rendered an oral opinion. Supplemental briefs were thereafter submitted by the parties. This Opinion is intended to be the final decision of the court and shall replace any portion of the court's oral opinion that is inconsistent herewith. Being fully advised in the premises, the court makes the following:

FINDINGS OF FACT

This case arises from the tragic murder of Maria Marin-Bobadilla (Ms. Marin), the mother of three young sons, by an indicted federal felon, who was released from custody at the instance of an Immigration and Naturalization Service (INS) agent in order that the felon could work "undercover" for the INS. As will be more fully set forth, infra, the felon immediately absconded from the conditions of his release. Despite the fact that the INS was fully informed as to his prior assaults on the victim, his illegal possession of firearms, and his prior threats to kill the victim, the INS took no action to warn the victim or the authorities, or to apprehend the felon.

At the time of the murder of their mother, Ms. Marin, the minor Plaintiff Robert Vargas was 14 years of age. Victor Vargas was 11 years of age, and Luis Vargas was 9 years of age. Their mother was a single parent, the father of the children having previously abandoned his wife and children. Ms. Marin was a loving, attentive parent who participated fully in all school and church activities with her children. She was a legal resident of the United States, and at the time of her death, had lived and worked in the Brewster, Washington area for many years. Ms. Marin was born on April 1, 1955. At the time she was shot and killed by Quintil Lopez-Fuentes (Lopez) Ms. Marin was 33 years old. Her life expectancy was 47.3 years.

Lopez is a citizen of Mexico, who had been illegally residing in the United States in the Brewster, Washington area when not in jail on various charges, or when not briefly in Mexico after having been deported from this country. Lopez had been deported from this country on five or six separate occasions. Each time, he promptly returned illegally to this country. Despite these occurrences, until the events recited herein, the INS never attempted to indict Lopez for these felonious activities.

Lopez had a history of harassing and assaulting Ms. Marin, with whom he was casually acquainted. Lopez apparently was infatuated with Ms. Marin. The records of the Brewster Police Department indicate that three formal investigations had been conducted into Lopez's assaults and other misconduct toward Ms. Marin, including threats to kill Ms. Marin, and possession of firearms during the assaults on her. The Brewster Police Department case reports are as follows:

1. January 3, 1987—Assault on Maria Marin;

2. July 31, 1987 — Possession of stolen property and second degree rape;

3. August 14, 1987 — Intimidating a witness and possession of stolen property—This incident and its report included a threat by Lopez to kill Ms. Marin.

At all times relevant to this case, the employees and agents of the United States who dealt with Lopez were aware of the contents of the Brewster Police Department files on Lopez, including his prior assaults on Ms. Marin, and were aware that he had possessed firearms. The federal officials were likewise aware of the fact that Lopez had threatened to kill Ms. Marin.

Lopez was again deported from the United States on October 8, 1987, after the completion of his state sentence for the August 14, 1987 assault on Ms. Marin. Shortly thereafter, on or about November 6, 1987, Lopez was seen by the Brewster police back in that town. The Brewster police deemed Lopez to be a threat to the security of the town and also toward Ms. Marin. They therefore contacted INS officials and informed them that Lopez was such a threat, and that he should be criminally charged with his blatant violations of the laws of the United States by his returning each time he was deported from this country.

On November 17, 1987, the Grand Jury of the United States District Court for the Eastern District of Washington indicted Lopez for violation of 8 U.S.C. § 1326, a felony, for being an alien found in the United States without permission after having being previously deported. A warrant was issued for Lopez and he was arrested by the Brewster Police on that warrant on December 6, 1987.

Lopez was thereafter arraigned before Magistrate Judge Hovis in Spokane, Washington, and based upon his violent criminal history and the risk of flight, he was ordered detained pending trial. Attorney Hugh Kelly, a member of the CJA panel for this district, was appointed to represent Lopez. William Beatty, an Assistant United States Attorney, represented the Government in that prosecution.

Attorney Kelly informed Mr. Beatty that Lopez desired to obtain permanent residency in the United States in exchange for information concerning alleged drug dealing in the Okanogan Valley, located in the northern part of this district adjacent to the Canadian border. Brewster, Washington is located in the Okanogan Valley. Kelly at first told Beatty that Lopez had information concerning alleged drug dealing by a member of the Washington State Patrol, but thereafter this was changed to report that Lopez had "information about a dirty policeman in Brewster." No specific or reliable factual basis for this claimed knowledge by Lopez was given to Mr. Beatty or any other Government representative.

Mr. Beatty was and is an experienced and competent Assistant United States Attorney. At all times that Mr. Beatty dealt with this case, he was aware of Lopez's assaultive nature, his danger to Ms. Marin, and his propensity to illegally possess firearms. He was aware of Lopez's prior threats to kill Ms. Marin. Mr. Beatty stated that he "saw a potential for danger," if Lopez was released.

Mr. Beatty conveyed to the federal Drug Enforcement Administration (DEA) officers the offer made by Lopez, through attorney Kelly, to work in some undercover capacity for a federal agency. A meeting concerning this matter was held with Lopez's attorney, Mr. Kelly, by agents of the DEA and the INS, including Russell Manchester, the officer in charge of the Spokane office of the INS. Thereafter, in view of Lopez's criminal history, assaultive nature, and lack of reliability, the DEA informed Mr. Beatty and Mr. Kelly that they were not interested in Lopez's offer of using him as an informant.

Mr. Beatty then discussed attorney Kelly's offer with Mr. Manchester. Mr. Manchester discussed the matter further with Mr. Kelly. Exhibit 214ZZ indicates that Mr. Manchester made an unbenevolent remark about the DEA to Mr. Kelly, and then informed Mr. Kelly that the INS could now work drug investigations, and that "we'll handle the case." There was no evidence that Mr. Manchester had received any training in matters such as these, it appearing to the court that Mr. Manchester and the INS were new to "the war on drugs".

Mr. Manchester was toward the end of a distinguished career with the INS, but had not previously been involved with the use of an alien on Pretrial Diversion status for undercover narcotics work, or the utilization of an indicted felon for such a purpose. Mr. Manchester is now retired after 33 years of service. The Spokane office of the INS had only recently become a member of a Drug Task Force in the Yakima, Washington area, along with officers from other federal and state agencies. Such membership placed the INS agents in law enforcement roles in which they had not traditionally been involved. There was no evidence that these agents had received training in the supervision of indicted felons whose release they had obtained for informant work. There was no evidence that Mr. Manchester had any prior experience with a Drug Task Force or drug investigations. His lengthy prior experience was devoted to immigration matters.

After the proposal from attorney Kelly to Mr. Manchester, Mr. Manchester familiarized himself with Lopez's alien and criminal files, and was made aware of Lopez's assaultive nature, his threats of death toward Ms. Marin, and Lopez's prior illegal possession of firearms. Despite this, Mr. Manchester made the decision to seek the release of Lopez from custody, and to send him to Yakima, Washington to work as an informant with the Drug Task Force. Mr. Manchester knew that Lopez had never before worked in such a capacity. Nothing in Lopez's files indicated that he had been a reliable person, that he would be a reliable informant, or that he would abide by the terms of a Pretrial Diversion Agreement. Mr. Manchester knew of Lopez's unreliability as to compliance with the law.

Mr. Beatty then prepared a Pretrial Diversion Agreement (Ex. 6) which provided that Lopez was to be released from custody, and that he could remain in this country for a period of 1 year, even though he was an alien illegally in this country and had...