U.S. Told to Prove Camarena Figure Would Flee

A skeptical federal magistrate Thursday ordered Justice Department lawyers to prove why a sealed affidavit that allegedly links a Mexican police agent to the torture-murder of a U.S. drug agent should not be made public.

Magistrate Barry Ted Moskowitz ordered James Wilson, a Justice Department attorney from Washington, to return to court today and argue why the affidavit, which is the focus of a bail review hearing for Mario Martinez Herrera, can be inspected by only Moskowitz in his chambers. Wilson argued Thursday that Martinez is a flight risk and would flee to Mexico if he was released.

U.S. officials have said that making the affidavit public would jeopardize their investigation into the torture-murder of Drug Enforcement Administration agent Enrique Camarena. On Thursday, Wilson said Martinez, a sub- commander in the Mexican General Directorate for Investigations of National Security (DGISN), is a target of the investigation.

Martinez also is being held as a material witness in the Camarena case and was indicted last week on one count of perjury for allegedly lying to a federal grand jury in San Diego that is investigating Camarena’s death.

Defense attorney Michael P. Murray said the controversial affidavit contains information used in the warrant that authorized Martinez’s arrest as a material witness. Wilson argued that making this information public would jeopardize the investigation and it should only be reviewed in private by Moskowitz.

Though Wilson argued against the disclosure of the information, Moskowitz was not swayed.

“That’s a conclusion. You need to give me some facts,” Moskowitz said.

Earlier, Moskowitz had instructed Wilson that the government has the burden of showing why the sealed material cannot be made public.

“If the government does not establish the burden, I will not consider that material. . . . The government has to show a need for the sealing. . . . If you have nothing to show, there’s no need for me to consider it in camera (chambers),” Moskowitz said.

Murray protested that having the affidavit reviewed in secret would put his client at a severe disadvantage. If Moskowitz agrees to review the material in chambers, the prosecutor and judge will know the contents of the affidavit but not Murray and Martinez.

“If we’re going to leave the defendant in the dark . . . then there must be a compelling need to establish that (sealed affidavit),” Murray said. “Both the judge and prosecutor would know why Mr. Martinez is a flight risk, but not the defense. It would put us in a severe disadvantage in that we couldn’t rebut the allegations because we wouldn’t know what they are.”

Moskowitz persisted throughout the lengthy hearing in asking Wilson why Martinez is a flight risk. He noted that Martinez has cooperated with government since his arrest and his sister, who lives in Chula Vista, and mother-in-law, who lives in Los Angeles, are willing to post their property as security to guarantee Martinez’s future court appearances.

Wilson responded that Martinez “simply has no ties with this country . . . not with the City of San Diego nor with the Southern District of California nor with the United States.”

However, Flavio Saul Martinez Herrera, Martinez’s brother, testified that Martinez’s wife and three daughters live in Los Angeles with his wife’s mother. Flavio Martinez, who owns a carpet-laying business in Tijuana, said his brother’s family lives in Los Angeles because Martinez’s police job takes him all over Mexico.

Moskowitz’s relentless prodding of Wilson revealed new information about the Camarena case, Martinez’s background and the circumstances of his arrest.

- Martinez, upon his arrest, told DEA agents he had served with the DGISN in Durango, Sinaloa and Nuevo Laredo.

- When arrested, Martinez had $2,000 in his possession in $100 bills, though his job pays only $2,400 a year. He had expired DGISN credentials, but also a letter “with a fairly current date” indicating he was a DGISN sub-commander in the Mexico City region.

- Martinez was a Baja California state judicial policeman in Tijuana in 1976 and 1977.

- Wilson confirmed that Camarena was tortured at 881 Lope de Vega in Guadalajara, Mexico.

- Wilson said U.S. investigators will testify that “there is physical evidence which places Mr. Martinez at that residence,” contrary to his claims of never having been there.

In February, The Times reported that U.S. investigators had acquired from Mexican officials eight tape recordings of the two-day torture session of Camarena. Several names and voices are heard on the tapes, including the name and voice of a “highly placed” Mexican federal police official who is believed to have supervised the torture.

Federal sources also said that hair samples were taken from the torture scene.

Martinez has given U.S. authorities samples of his hair, blood and a voice print. The voice testing of Martinez by an FBI agent took three hours. Martinez provided the samples against the advice of his attorney.

“He agreed to cooperate with the authorities on his own free will because he maintains his innocence in respect to the Camarena case,” Murray said.

On Thursday, three U.S. agents testified that Martinez lied to them about his family’s whereabouts when he was arrested by DEA agents at a Chula Vista restaurant Sept. 15. The three said that Martinez told them that his wife and children lived in Mexico City.

Richard Walker, an Immigration and Naturalization Service special agent, said he believes that Martinez also lied when he told arresting officers that he had entered the United States at the San Ysidro port of entry on the day of his arrest. Walker said that computer records show that the car--with Mexican license plates--allegedly driven by Martinez did not cross at San Ysidro from Sept. 8 to Sept. 15.

However, Walker admitted under questioning by Murray that border officials do not enter into the computer the license plate of every car that crosses the border.

DEA agent David Gautchier testified that one informer told him that Martinez “was in a lot of trouble” with Mexican officials because he is a target in the Camarena investigation. Gautchier did not elaborate but said an unidentified Mexican government official told the informer that Martinez was in trouble.

Gautchier also said another informer told him that Martinez was a “pistolero” for Mexican drug kingpin Ernesto Fonseca Carrillo. Fonseca and Rafael Caro Quintero, another notorious Mexican drug trafficker, are in a Mexico City prison, accused of masterminding Camarena’s murder.