G. DOJ Opens an Investigation in 1987

1. Background

Aside from FBI assistance to the Salvadorans, DOJ was not asked to become involved in the investigation and prosecution of the Zona Rosa case until 1987. In November 1987, because of the possibility that the amnesty would free Rivas, DOS asked DOJ to pursue an indictment of him.

After receiving the DOS request, DOJ assigned the case to Mark Biros, an Assistant United States Attorney (AUSA) for the District of Columbia, and Dana Biehl, a prosecutor in DOJ's GLAAS. [Biehl later became a part of the newly created Terrorism and Violent Crime Section (TVCS) which took over all terrorism matters.] According to Biehl, DOS informed DOJ that it felt strongly that the Salvadorans should prosecute the defendants if possible and that the United States should step in only if the Salvadorans granted amnesty to the defendants. Because DOS had attempted to improve the Salvadoran judicial system, DOS believed that it would be a "vote of no confidence" for DOJ to prosecute the Zona Rosa case in the United States.

DOJ agreed with DOS that the Salvadorans should retain the case and prosecute the Zona Rosa killers if possible. A Salvadoran prosecution avoided numerous problems, such as securing custody of the defendants in the United States, evidence admissibility problems with Rivas' confessions, and the potential argument that the Salvadorans were acting as "agents of the United States" in obtaining the confessions. (These issues will be discussed in detail in Section 6 below.) In addition, the Salvadorans would have a better chance of convicting them. Moreover, DOS and DOJ did not want the Salvadorans to assume that DOJ was going to prosecute the killers and that the Salvadorans should not continue their attempts.

However, if the Salvadorans intended to release Rivas pursuant to a general amnesty, the United States would seek his custody and attempt to prosecute him. DOJ believed that such a prosecution might result in an acquittal due to the limited evidence in the case but believed it was, as DOJ prosecutors stated in an internal memorandum seeking approval of a prosecution, "worth the undertaking rather than remaining idle while Rivas goes unpunished." Any United States prosecution was dependent on obtaining custody of the defendant, which was difficult because the Salvadoran constitution prohibits the extradition of Salvadoran nationals. As a result, unless the United States was going to conduct an "irregular rendition," "snatch," or lure the defendant from El Salvador--none of which was contemplated--El Salvador would have to agree voluntarily to hand over its citizen to the United States government. This would have been a highly controversial step in El Salvador. Therefore, although DOJ agreed to open an investigation, it was recognized that the likelihood that the case would ever be tried in the United States was small.

2. DOJ's Investigative Plan

On November 19, 1987, DOJ prosecutors and FBI agents met to develop an investigative plan in the Zona Rosa case. The FBI was asked to collect relevant evidence from United States and Salvadoran authorities related to the investigation of the murders. The FBI directed an agent from its Legat in Mexico City to travel to El Salvador and meet with Salvadoran law enforcement and intelligence agencies to obtain reports and evidence for review by the FBI and DOJ. DOJ and USAO attorneys planned to review the documents collected and then travel to El Salvador to locate and interview witnesses. Some of these witnesses would later be asked to come to the United States to testify before a federal grand jury.

A Mexico City FBI Assistant Legat travelled to El Salvador and found little useful physical evidence in the possession of the Salvadoran law enforcement or judicial authorities. Although bullets were recovered from the victims' bodies, no weapons were recovered with which to compare them. Latent prints were found on one of the vehicles used in the killings, but they did not match any of the captured perpetrators. The Assistant Legat reported the substance of the statements taken from the Zona Rosa defendants, which we described above, and the circumstances under which they were taken. FBI Headquarters also arranged for the translation of the Salvadoran documents and police reports that had been collected by the Mexico City Legat.

On December 8, 1987, the District of Columbia United States Attorney and the Salvadoran Minister of Justice and Attorney General met in Washington to discuss a possible United States prosecution of the Zona Rosa killers. The Salvadoran officials were cooperative, but there was no discussion of the details of the Salvadoran prosecution or whether the Salvadorans would make witnesses available for a potential prosecution in the United States. The problem of releasing any Salvadoran defendants to the United States was discussed at length. The Salvadoran officials stated that participation in any clandestine effort to release the defendants to the United States would have serious political drawbacks for them and that the Salvadoran government could not cooperate with an irregular transfer of the defendants. There was some discussion of having the suspects released on the other side of the Salvadoran border, where they would be picked up by the United States, but that issue was never resolved.

3. DOJ's Analysis of the Case

AUSA Biros, the initial lead DOJ prosecutor on the case, told us that the case against Rivas was complicated by the fact that the CIA had interviewed him. Biros believed that the CIA would try to protect the identity of its agents and would not allow them to testify in court. Biros also said that in any United States prosecution of Rivas, the issue of the voluntariness of his confession would have been fully litigated by defense counsel. Even if the confession were not suppressed, Biros was concerned how a District of Columbia jury would respond to testimony about the manner in which Rivas was treated by the interrogators. Biros did not know what kind of evidence Rivas might produce regarding coercion, and Biros was concerned that prosecutors might not be able to rebut a claim of coercion without credible Salvadoran witnesses or the disclosure of classified information. Biros stated that the introduction of Rivas' confessions might end up putting on trial "the whole political situation in El Salvador."

On November 27, 1989, Biehl, Biros, FBI WMFO Special Agent [REDACTED], and Carlos Correa (an attorney with DOJ's Office of International Affairs who had previously been detailed to work on human rights cases in El Salvador) interviewed [REDACTED] in Washington. [REDACTED], a Venezuelan national, was the head of the Venezuelan Special Advisory Group to El Salvador and had participated in the Salvadoran investigation of the Zona Rosa murders in 1985. [REDACTED] first described the problems of preserving the crime scene. [REDACTED] also told the prosecutors that he believed that the planner of the Zona Rosa killings was a Salvadoran doctor who had been trained in Moscow and was "the number two man" in the Salvadoran Communist party. [REDACTED] stated that this doctor had been arrested in connection with the Zona Rosa killings but later released by the Salvadorans as part of an exchange to gain the release of President Duarte's daughter, who had been kidnapped by the guerrillas in August 1985. [REDACTED] could provide no further details on this individual. We found no evidence in the DOJ files about this doctor.

4. DOJ Trips to El Salvador and Witness Interviews

In January 1988, AUSA Biros left the District of Columbia USAO for private practice, and the Zona Rosa case was transferred to another AUSA in the D.C. USAO, J. Michael Hannon, Jr. Hannon, along with Biehl, Correa, and several FBI agents, made two trips to El Salvador in February and April 1988 to locate and interview witnesses. During these trips, they met with several United States Embassy officials and Salvadoran law enforcement officials.

Their efforts to gather evidence in El Salvador were initially met with some resistance by the United States Embassy personnel. The United States Ambassador and his political advisor were concerned that the Salvadoran government would perceive that an intense, direct effort by DOJ to gather evidence and prosecute the Zona Rosa murderers in the United States was a sign that the United States did not feel the Salvadorans were doing an adequate job in its prosecutive efforts. However, after a meeting between the DOJ attorneys and the Ambassador, the Embassy cooperated with DOJ efforts to locate witnesses and obtain evidence.

(a) [REDACTED]

During their first trip to El Salvador, the DOJ attorneys located and interviewed [REDACTED], the eyewitness [REDACTED]. DOJ had requested that the FBI and the Salvadoran Special Investigative Unit find [REDACTED]. Biehl said because there was no FBI Legat assigned to El Salvador, and someone had to come from Panama or Mexico City to work on the case, the FBI was not able to follow up on all investigative requests made by the prosecutors. Therefore, DOJ Attorney Correa, who spoke fluent Spanish, went around San Salvador in a cab from address to address until he found [REDACTED].

[REDACTED] described for DOJ attorneys the lineup at the National Guard Headquarters in which he identified Rivas. [REDACTED] said he had observed about 38 men being brought to an area where he was positioned behind a large window. This group was reduced to about 17 men, from whom 6 were chosen to stand in a line before him. Before the six were selected, [REDACTED] recognized Rivas.

Rivas was included among the six in the lineup. After [REDACTED] asked for a beret to be placed on Rivas' head and a gun in his hands, [REDACTED] identified Rivas.

In a prosecutive memorandum, AUSA Hannon reported that [REDACTED] had a "photographic memory" of events on the night of the murder. Hannon wrote, "When reciting the events of that night, his eyes become vacant as he recreated the scene in his mind's eye. He recounts the events of that night with such detail and emotion that he will make a convincing witness despite the date of the offense." Biehl also reported that [REDACTED] had an almost photographic memory of the crime.

[REDACTED] told DOJ attorneys that [REDACTED] had also made a positive identification of Rivas from a lineup. The Salvadoran police files indicated, however, that [REDACTED] identification was negative. [REDACTED] could not be located during the DOJ trips to El Salvador. The FBI learned from interviews of [REDACTED] family that on an unknown date, a car [REDACTED] had been driving was found abandoned in an area of heavy FMLN activity. The FBI suspected that [REDACTED] was "disappeared" by the FMLN to keep him from testifying in the Zona Rosa case.

The DOJ attorneys requested through DOS that [REDACTED] be brought to the United States. DOJ wanted [REDACTED] to be present in the United States so that he would be available if the United States prosecution of Rivas went forward. According to DOJ attorneys, the request languished for some time, until DOS Legal Officer Rick Chidester arranged for [REDACTED] and his mother to come to the United States. INS granted [REDACTED] an indefinite parole into the United States as a material witness.

Chidester personally escorted [REDACTED] and his mother to Washington, D.C., in the spring of 1989. DOJ did not place [REDACTED] in the Witness Security Program, because it wanted [REDACTED] to become self-sufficient. The FBI helped [REDACTED] get a job as a waiter in the Adams-Morgan section of Washington, D.C., provided him financial support, and kept in frequent contact with him.

(b) Garcia

On February 17, 1988, during one of their trips to El Salvador, AUSA Hannon and an FBI agent interviewed Garcia in a Salvadoran prison. Hannon told Garcia that he did not believe that Garcia had been directly involved in the Zona Rosa murders, but that there was great concern over the conflicting statements he had given. Hannon also said he had the impression that Garcia had not told authorities all he knew. During this interview, Garcia denied telling Border Patrol authorities that he had knowledge of the Zona Rosa incident. Garcia insisted that the Border Patrol had shown him a picture of Rivas, and Garcia had simply told what he knew about Rivas from working with him in the upholstery shop. Garcia also denied he participated in the Zona Rosa attack. Although he denied overhearing any specific conversations between Rivas and Ulises about the attack, he admitted hearing them say they were going to "bowl over some gringos" several days prior to the attack. Garcia alleged that he had been beaten for a period of approximately six days by the Salvadoran police in an attempt to get him to admit responsibility for the Zona Rosa attack. Garcia stated that his mother and niece were also held by the police and that his mother was interrogated behind a two-way mirror while he watched. Garcia said this was the reason for his inconsistent statements and confession to Salvadoran authorities.

(c) Other Supporting Witnesses

DOJ attorneys also interviewed numerous Salvadoran officials and investigators about the Zona Rosa murders during their trips to El Salvador. The Salvadoran officials were cooperative and provided the attorneys with diagrams of the suspected structure of the Mardoqueo Cruz. DOJ attorneys also interviewed the witnesses to Rivas' signed statement before the military court. They claimed that Rivas gave the statement freely and without coercion after he was advised of his rights.

On February 17, 1988, the FBI interviewed Dimas, the brother of Ulises. Dimas stated that he had signed a statement written by the Salvadoran National Guard after his arrest, but he had not read the statement. He also stated that he was coerced to confess after three days of interrogation. Dimas reported that when he was taken before a judge, he told the judge that his statement was involuntary and that he had been told what to say to the judge prior to the hearing.

DOJ attorneys attempted to interview other witnesses during their visit to El Salvador. After learning that Rivas had met with representatives from the Red Cross during his incarceration, unsuccessful attempts were made to locate and interview the Red Cross visitors about their contact with Rivas.

5. FBI Interviews of Witnesses

Between March 1988 and September 1988, the FBI interviewed numerous witnesses to the murders throughout the United States, including military and civilian witnesses who were eating at the Zona Rosa cafes at the time of the attack. None of these witnesses were able to identify the perpetrators of the attack. Many did not see anyone because they were running for cover. Those who saw the gunmen were not able to identify anyone when shown photographic spreads containing the photographs of Rivas and Garcia.

6. Problems with United States Prosecution of Rivas

As noted above, DOJ attorneys believed that the statute protecting "internationally protected persons," 18 U.S.C. 1116, applied to the Zona Rosa murders. Although this was an issue of first impression, John DePue of DOJ's TVCS researched this issue and obtained documentation from DOS establishing that the Marines worked on the diplomatic side of the Embassy in El Salvador. DePue said his research showed that the statute covered Marine security guards attached to a United States Embassy abroad. In addition, because of the concerted nature of the attack, DePue believed that the perpetrators could also be charged under 18 U.S.C. 1117 with conspiring to violate 1116.

At the time of the murders, 1116 was not a capital offense and had a five-year statute of limitations. As a result of the Violent Crime Control and Law Enforcement Act of 1994, 1116 was made a capital offense, with an unlimited statute of limitations. But the Act did not apply retroactively to crimes committed before its enactment.

Yet, despite the applicability of these statutes to the crimes, there were several problems confronting DOJ prosecutors seeking to bring a winnable case against the Zona Rosa perpetrators.

(a) Extradition

As noted above, the greatest impediment to prosecution of the case in the United States involved obtaining custody over any Salvadoran citizen. Even when they were investigating the case, DOJ attorneys believed that obtaining custody of a Salvadoran would be unlikely.

(b) Admissibility of Rivas' Confessions

The various DOJ attorneys assigned to the Zona Rosa case had differing beliefs about the admissibility of Rivas' confessions. AUSA Hannon believed that Rivas' confessions would be admissible in a United States court. Hannon noted in a prosecutive memorandum dated January 10, 1989, that the Miranda rule does not apply to the conduct of foreign officials, and the only test which his confession must pass was a voluntariness test. One exception to that rule, however, is that the Miranda rule applies if foreign officials act as agents of the United States government. Hannon expected that the defense in the Rivas case would argue that the entire Salvadoran investigation was directed by the United States. Hannon was concerned about the role of CIA personnel in the Salvadoran investigation and how information regarding their role could be presented without revealing classified information in court. On balance, however, Hannon believed that it could be proved that the Salvadorans were not agents of the United States when they conducted their investigation.

Hannon also believed that Rivas' initial confession to the National Guard was voluntary. Hannon was concerned about the prolonged interrogation, but believed that "if properly considered in the context of an intelligence gathering operation designed to identify guerrilla operations, a court could conceivably admit the initial confessions under a totality of the circumstances test."

Hannon knew that, according to the human rights group "The Americas Watch" and some members of Congress, one of Rivas' interrogators was alleged to have committed various human rights violations in El Salvador. Hannon questioned whether the United States should use this interrogator as a witness. Hannon believed, however, that even if the initial confession were not admissible, the subsequent confessions to judicial authorities would be.

Other prosecutors we interviewed did not share Hannon's sanguine view. As noted above, AUSA Biros believed there to be serious questions as to the voluntariness of Rivas' confession to Salvadoran authorities. TVCS attorney Biehl agreed. He reported that when he interviewed one of Rivas' interrogators in El Salvador, the interrogator had described the interrogations as "intense." Biehl said this probably was an understatement. The interrogator had laughed when Biehl asked whether Rivas was allowed to sleep, which indicated to Biehl that sleep deprivation techniques were used. Biehl also said that the interrogator was a "frightening" person, and Biehl doubted that a United States jury would believe the interrogator if he testified as to the facts of the interrogation. Biehl concluded that he did not think a United States judge would admit Rivas' confession to his Salvadoran interrogators.

Biehl also believed that Rivas' judicial confession would not be admitted. Biehl said that the judge was a very impressive and courageous person and that he was subsequently murdered in El Salvador by unknown assassins. Biehl stated that the judge had put on the record that Rivas' confession was voluntary, but Biehl did not believe that this was sufficient to clear the taint of any prior involuntary confession.

The AUSA who later succeeded Hannon in handling the case, AUSA Brian Murtagh, also did not believe that Rivas' confession would pass the voluntariness test and be admitted in a United States court. Murtagh noted that Rivas was subjected to extensive interrogation before he confessed, lasting as long as fourteen hours. Even if Salvadoran witnesses were available to testify to the circumstances of the confession at the inevitable suppression hearing before a United States court, Murtagh believed that Rivas could argue that the Salvadorans were acting on behalf of the United States when they obtained the statements from Rivas. Murtagh was worried that he would not be able to rebut such claims because of his inability to use classified information or CIA witnesses in his case without compromising United States security or embarrassing the government of El Salvador.

Murtagh stated that, although he did not raise this directly with the CIA, his experience led him to believe that the CIA would be reluctant to let any of its employees or assets testify in a United States trial. Therefore, Rivas' statements to the CIA polygrapher would not get before the court. Murtagh stated that he did not think a confession by Rivas to the CIA would have been admissible in any event, because that would likely have been ruled to be the product of previous involuntary confessions.

Thus, despite Rivas' several confessions, the predominant opinion among DOJ prosecutors was that the confessions would not be admitted in any United States prosecution and, even if they were admitted, would be discounted by the jury.

(c) Motion to Suppress [REDACTED] Identification of Rivas

Both Biehl and Murtagh stated that they were also concerned that [REDACTED] identification of Rivas in the Salvadoran lineup would not survive a suppression hearing contesting the admissibility of the lineup identification. The FBI tried to obtain information from the Salvadoran government about the witnesses to the lineup, but the FBI could not get from the Salvadorans any photographs of the lineup, which would have been important in rebutting a claim that the lineup was unduly suggestive.

On December 4, 1989, Murtagh wrote a letter to Robin Frank from the Legal Advisor's Office at DOS requesting aid on the Rivas prosecution. Murtagh included a number of specific requests for information that would be necessary for a United States prosecution of Rivas. One of the requests was for information on the lineup that [REDACTED] had viewed. Murtagh said he never received anything back from Frank--who left her position at DOS shortly after this letter--from anyone else at DOS, or from the Salvadorans. Murtagh believed that without such information, DOJ could not overcome a claim that the lineup was unduly suggestive, which would undoubtedly be raised in a United States trial.

(d) Problems with Evidence Handling

As noted above, the forensic evidence collected by the Salvadorans was not well-handled. DOJ attorney Biehl called the forensic evidence in the case "terribly mismanaged." The crime scene had not been preserved, and there was no established chain of custody for any piece of evidence recovered at the scene. Biehl said that DOJ was given no information on who found the evidence or where it had been found. For example, Biehl recalled a bag full of shell casings and bullet fragments labeled "Zona Rosa," with no further identification. The DOJ attorneys also tried to get television tapes of the crime scene, but the Salvadorans were not able to locate them.

Murtagh similarly described problems with the chain of custody of the bullets extracted from the bodies of the Marines in El Salvador. Bullets were given by the Salvadorans to the FBI for comparison with any weapons that were found. But the bullets were not labeled properly by the Salvadorans, and no one bullet could be traced with an adequate chain of custody to a specific victim. Without such evidence, the bullets might not be admissible. Moreover, no gun was found that was linked to the Zona Rosa murders.

(e) Problems Obtaining Information During a Civil War

The difficulties in obtaining information and witnesses from a country in the middle of a civil war were many. The Salvadoran police and military were not consistently reliable, both in terms of their investigative skills and in refraining from the use of coercion on prisoners. The United States Embassy was involved in numerous investigations of Salvadoran military human rights abuses and "death squads" and was familiar with the potential for violence and corruption on the part of the Salvadoran interrogators.

In addition, it was difficult to locate witnesses or convince witnesses to cooperate with a United States investigation. Witnesses were understandably afraid of retaliation, as evidenced by the disappearance of eyewitness [REDACTED], who was allegedly killed by the guerrillas, and the assassination of the judge who witnessed Rivas' confession.

7. The Indictment of Rivas

The consensus of DOJ attorneys we interviewed was that the case against Rivas was essentially a "one-witness identification case," relying on the testimony of [REDACTED]. If Rivas' confession was inadmissible, which was likely, there was no admissible evidence against Rivas other than [REDACTED] testimony. Nevertheless, DOJ believed in 1988 that [REDACTED] testimony was sufficient to indict Rivas. DOJ made the decision, however, to wait until after Rivas turned 21 on October 31, 1988, to indict him. Under 18 U.S.C. 5032, a defendant could be prosecuted as an adult when he was 21, even though the offense was committed before he reached that age. AUSA Hannon obtained a sealed complaint and warrant against Rivas on November 10, 1988.

In 1988, DOJ attorneys presented several United States citizens who were eyewitnesses to the shooting to testify before the grand jury, although none were able to identify Rivas. Several Salvadoran military officials and prosecutors also came to the United States in connection with the investigation, but they did not testify before the grand jury.

DOJ attorneys decided not to have [REDACTED] testify before the grand jury because of his poor English. The DOJ Attorneys who interviewed him were satisfied with his recall of events, and they did not believe that his first-hand testimony needed to be presented. His testimony was summarized before the grand jury by an FBI agent.

On September 15, 1989, in response to renewed concerns that the Salvadoran government was about to include the Zona Rosa defendants in an amnesty, DOJ prosecutors presented an indictment against Rivas to the federal grand jury in the District of Columbia. On the same day, the grand jury returned an indictment charging Rivas with four counts of murder of an internationally protected person under 18 U.S.C. 1116 and one count of conspiracy under 18 U.S.C. 1117. The indictment was returned under seal.

A criminal complaint was filed and a warrant issued for Garcia as a material witness. Although none of the DOJ prosecutors felt it was likely that Garcia would ever be used as a witness, they wanted to preserve the option to do so.

8. Plans to Obtain Custody of Rivas

On September 7, 1989, the United States Embassy in El Salvador reported that the government of El Salvador had made "overtures that they would entertain releasing captioned subject Bolanos, Garcia Melendez, Dimas Aguilar, Juan Antonio Lucero for prosecution in the U.S." On September 12, 1989, a meeting was held among DOJ and DOS participants to discuss the possible release to the United States of the Zona Rosa defendants. DOS officials reported that Salvadoran officials had asked what the United States government would do if Rivas suddenly appeared aboard a flight to Miami. The Salvadoran officials had been told that the United States would welcome such an event and that Rivas would be arrested. FBI agents stated at the meeting that they were prepared to arrest Rivas in Miami if he arrived in that manner.

Other options were also discussed at the meeting, including the possibility of the FBI agents' flying to El Salvador aboard a United States military aircraft, taking custody of Rivas, and transporting him back to the United States. The FBI believed that this option would give FBI agents time to conduct an in-depth interview of Rivas during the trip to the United States. Because of the belief that Rivas' confessions to Salvadoran authorities might not be admissible in a United States court, it was believed that a statement from Rivas to the FBI was very important.

Department of Defense (DOD) officials agreed to make a C-130 aircraft available for this mission. The aircraft was placed on alert after the meeting, ready to fly to El Salvador. According to a DOD participant in the meeting, the aircraft remained on alert for about a week, but it was never asked to fly to El Salvador.

On December 27, 1989, the Director of the FBI sent an "Action Memorandum" to the Attorney General outlining three possible scenarios for taking Rivas into custody. The plans also included obtaining custody over Garcia as a material witness. The three proposals were as follows. (1) Salvadoran authorities would give the FBI custody of Rivas and Garcia by putting them on board a United States Marine Corps C-130 aircraft, which would then fly to Andrews Air Force Base. (2) The Salvadorans would expel Rivas and Garcia to a third country, such as the Dominican Republic, and the third country turning them over to FBI custody. (3) The Salvadorans would place Rivas and Garcia on a Government of El Salvador aircraft with no other passengers and fly them to the United States, where they would be arrested and taken to the nearest United States Magistrate.

However, none of these plans were implemented because the Salvadorans did not ultimately extend the amnesty to the Zona Rosa defendants and never agreed to send the defendants to the United States. Rather, the Salvadorans agreed to try the defendants in their courts.

H. Current Status of Prosecution of Rivas

1. Outcome of Judicial Proceedings in El Salvador

In January 1988, the military appellate court granted amnesty to political prisoners, including the Zona Rosa defendants, but stayed that opinion pending appeal to President Duarte. The United States pressured the Salvadorans to go forward with the prosecution of the Zona Rosa defendants and not include them in any amnesty. The United States Congress also passed a bill withholding a percentage of United States aid to El Salvador. The bill stated that the withheld money could only be obligated if the "accused murderers of the United States Marines in El Salvador have not been released from prison as the result of an amnesty."

On April 8, 1988, Duarte reversed the decision of the military appellate court, holding that the amnesty did not apply to the Zona Rosa defendants. Duarte's decision was based on two treaties to which El Salvador and the United States are signatories--the 1971 Convention to Prevent and Punish Acts of Terrorism and the 1979 Convention on the Prevention and the Punishment of Offenses Against Internationally Protected Persons. Duarte found that the United States Marines working at the United States Embassy were internationally protected persons as defined under the treaties and that the treaties superseded the amnesty agreement. DOJ, the FBI, and DOS were involved in persuading the Salvadoran government to pursue the case against the Zona Rosa suspects.

Defense counsel appealed the ruling to the Supreme Court, which ruled in September 1989 that the case should be reopened and the defendants tried. The case was remanded to a military court for trial. Another appeal followed on the issue of whether a military or civilian court had jurisdiction. The Court of Second Instance finally ruled that a military court should hear the matter.

In April 1991, Rivas, Garcia, and Dimas were finally tried in a Salvadoran military court. All were convicted of the charges against them. Rivas was found guilty of subversive association, cooperation in subversive propaganda, and acts of terrorism resulting in the deaths of several persons in conjunction with the Zona Rosa attacks. He was sentenced, respectively, to three, two, and twenty years, consecutively, on those charges. Garcia was found guilty of cooperating in acts in support of terrorism and related charges, and he was sentenced to 11 years in prison. Dimas was convicted of subversive association and sentenced to four years. Because he had already served over six years at the time of his conviction, he was released from prison.

According to DOJ prosecutors, the convictions against the defendants were satisfying, and they believed that "justice had been served." They also thought that a 25 year sentence for Rivas, to be served in a Salvadoran jail, was a significant sentence. As a result, they made no further attempts to gain custody of him or to have him prosecuted in the United States. After Rivas' conviction, AUSA Murtagh received requests from the FBI to dismiss the United States indictment. DOJ did not want to do this, however, in an abundance of caution, because the situation could change in El Salvador and there was no compelling reason why the indictment had to be dismissed.

2. Deterioration of the United States Case against Rivas

After [REDACTED] came to the United States, his value as a witness diminished and eventually was destroyed. AUSA Murtagh reported that when [REDACTED] was flying to Washington from El Salvador, he told DOS Legal Officer Chidester that he had used the gun that had been taken from his waistband in the Zona Rosa attack to kill someone. [REDACTED] said that he had been with his girlfriend on the beach and someone had raped his girlfriend. [REDACTED] said he got a gun, shot and killed the rapist, and kept the gun until it was taken from him during the Zona Rosa attack. Chidester did not tell anyone from DOJ about this conversation when they arrived in the United States. But [REDACTED] later reported the same story to an FBI Special Agent, who recorded the information and informed the DOJ prosecutors about it.

This story concerned the DOJ prosecutors, who advised INS in writing of this information. Prosecutors did not believe that this fact made [REDACTED] unusable as a witness. However, subsequent events in the United States undermined his value as a witness. In the summer of 1990, [REDACTED] brought his girlfriend, who was also considered to be his common-law wife, from El Salvador to join him in Washington. (This was a different girlfriend from the one who had been raped on the beach.) [REDACTED] girlfriend also brought her 11-year-old daughter with her to the United States. In 1991, [REDACTED] was arrested in Fairfax County, Virginia, for sexually molesting the 11-year-old daughter. He was charged with two counts of sexual battery on a minor. In a state court trial, [REDACTED] was convicted of the charges and sentenced to 20 years. Murtagh said that DOJ had absolutely no involvement in the case and did not intervene to help [REDACTED] in any way. [REDACTED] is currently serving his sentence in a Virginia prison and has not been in contact with DOJ prosecutors.

Both Murtagh and Biehl now agree that, as a result of the conviction, [REDACTED] has "fallen apart" as an effective witness and that a trial resting on his testimony--even if he were still cooperative--would be virtually impossible for the government to win.

3. Release of Rivas by the Salvadorans in 1995

On August 8, 1995, DOS informed the FBI that Rivas was about to be released from Salvadoran prison because of the passage of a new law regarding juvenile crimes. Under the Salvadoran law, a juvenile could only be imprisoned for a maximum of seven years on a murder charge. The law applied to Rivas because he was 17 at the time of the Zona Rosa killings. The Salvadoran government tried to keep Rivas in custody in a psychiatric institution, but that effort failed when a psychiatrist found that he no longer posed a danger to society. On September 7, 1995, Rivas was released from prison, having served 10 years of a 20 year sentence.

AUSA Murtagh said that at the time of Rivas' release, no one believed that El Salvador would expel Rivas to the custody of the United States. Murtagh and Biehl also believed that the case against Rivas was no longer winnable because of the problems with establishing the circumstances of the lineup in which [REDACTED] identified Rivas, the inadmissibility of Rivas' confessions, and the problems with [REDACTED] as a witness because of his criminal conviction for sexual molestation of a minor. Murtagh said he thought he could explain to a jury [REDACTED] killing the rapist on the beach in El Salvador, but [REDACTED] conviction for sexual battery could not be explained. Moreover, DOJ attorneys believed that the 10 years that Rivas had served in a Salvadoran prison was a considerable sentence, even in relation to United States standards.

During the week of February 20, 1996, however, at the request of DOJ prosecutors, an FBI agent travelled to El Salvador to review evidence in the possession of the Salvadoran authorities to determine whether any prosecution in the United States of Rivas or anyone else, including Gilberto Osorio or Pedro Andrade, was possible. The FBI agent reviewed the National Police file but could not find the record of the confessions by Rivas. The FBI agent found that the several different Salvadoran agencies that had investigated the Zona Rosa murders no longer existed. Also, according to Salvadoran officials, some of the files from the non-existent agencies had been "purged."

Moreover, the FBI agent reported that it was his impression that, because Rivas served a considerable sentence in El Salvador and was released because of changes in the country's juvenile code, the United States could not expect any assistance from the Salvadoran government in pursuing prosecution of Rivas in the United States. The FBI agent suggested that, faced with the lack of solid evidence and the fact that [REDACTED] was convicted of child molestation, the indictment should be dismissed.

On February 11, 1996, the FBI learned that Rivas was seeking asylum in Australia. The FBI informed the Australian Assistant Secretary for Immigration that there was a warrant for the arrest of Rivas in the United States The FBI notified Australia of the United States' strong opposition to Australia granting political asylum to Rivas because of his terrorist history, the heinous nature of the crime, and the lack of danger to him in El Salvador.

The consensus of the DOJ prosecutors we interviewed was that there is no reasonable possibility of a conviction against Rivas. The prosecutors believe that he would not be convicted in a United States court based on the available evidence. They believe that it would be a mistake for the United States to seek to gain custody of Rivas and then lose the case in a suppression hearing or before the jury. Finally, they point out that, although it would have been preferable for Rivas to have served his full sentence in El Salvador, he did serve a substantial portion of it in the extreme conditions of the Salvadoran prison system, despite his young age.

I. DOJ Information on Other Alleged Perpetrators

1. Juan Antonio Morales Lucero

On July 13, 1988, the Salvadoran National Police arrested Juan Antonio Morales Lucero (Morales), also known as "Ruperto," and charged him with involvement in the Zona Rosa murders. Morales allegedly told the Salvadoran police during interrogation after his arrest that he had been a member of the PRTC and had participated in the murders. We have no information about the circumstances under which he was interrogated or the voluntariness of his confession. Morales told police that he had provided security from the back of the pickup truck used in the killings and remained in the truck with the driver while the others fired on the victims. Morales stated that others how participated in the attack were Walter, Ulises, Julio, Manuel and another whose name he could not recall. Morales said he was armed with a Galil rifle; Julio, Walter, and Manuel with M-16's; Ulises with a 9 mm pistol; and the driver with a .38 special revolver. Morales said he left the PRTC immediately after the Zona Rosa killings when the PRTC leaders failed to pay him the $100 they had promised him for his part in the killings.

The CIA notified FBI Headquarters of Morales' arrest by teletype on July 26, 1988. FBI Headquarters forwarded this information to the FBI Legat, Panama City, and asked it to obtain the details of the arrest and Morales' statements. The Panama Legat collected reports of the interview of Morales in Spanish, summarized them, and forwarded them by airtel to the FBI in Washington on September 14, 1988. The airtel also changed the subject heading of the case to include Morales as a subject. FBI Headquarters forwarded the airtel to WMFO on October 11, 1988. FBI records show that on October 15, 1988, FBI Special Agent [REDACTED], the case agent responsible for the case, received these reports.

On November 1, 1988, WMFO agent [REDACTED] completed the FBI Prosecutive Report for the Zona Rosa matter. This report does not reflect the change in the subject heading to include Morales and does not include any of the information on Morales' confession to Salvadoran authorities.

On November 23, 1988, Legat Panama City sent a teletype to FBI Headquarters reporting that DOS had requested information from the United States Embassy about developments regarding Morales' prosecution since the arrest of Morales on July 13, 1988. No response to this request was found in the FBI files.

On March 3, 1989, the United States Embassy reported to DOS and the FBI in Washington that there had been no judicial developments since the defense filed a habeas corpus petition with the Salvadoran Supreme Court on behalf of Morales after President Duarte overturned the release of the three original defendants under the amnesty plan. The Embassy reported that no action could be taken in the case until the Supreme Court rendered its decision. "For this reason, Morales has not been brought before the lower court as a co-defendant in the Zona Rosa case." This information was received by FBI Headquarters and forwarded to WMFO and the Panama City Legat.

On May 4, 1989, DOS cabled the United States Embassy and sent an informational copy to FBI Headquarters and the Panama City Legat [REDACTED]. The cable requested information on the status of the Salvadoran case and the status of the case against Juan Antonio Lucero [Morales]. FBI Headquarters appears to have added an addendum requesting WMFO and Legat Panama City to advise Headquarters of the results of their investigation as requested by DOS and to "ensure this matter is closely followed and leads expeditiously handled."

On August 18, 1993, Morales was eventually tried by a Salvadoran court for his involvement in the Zona Rosa murders. Morales was acquitted by a jury after 12 hours of deliberation. Newspaper accounts of the acquittal report that Morales claimed that he had confessed to police so that they would stop beating him. His attorneys also argued that other guerrillas, presumably in other cases, had been incarcerated for less time than Morales had served since his arrest in 1988.

Our review of DOJ files revealed no further information concerning Morales. Neither Rivas, Garcia, nor Andrade provided any information to the Salvadoran police or other law enforcement implicating Morales in the Zona Rosa massacre.

We found no evidence that the DOJ prosecutors handling the Zona Rosa case were provided the reports about Morales' arrest. In connection with the potential release of the Zona Rosa defendants by the Salvadoran government, in September 1989 the FBI met with DOJ prosecutors to discuss plans to obtain custody of some of the defendants, particularly Rivas, who was about to be indicted in the United States. See Section II(G)(8), above. The names of four defendants in Salvadoran custody were raised, including Morales' name. But it is not clear whether details regarding Morales were discussed during this meeting. There is no evidence that the reports regarding Morales' arrest and confession were ever conveyed to DOJ prosecutors. The reports received by the FBI were not in any DOJ prosecutor's files. As discussed above, [REDACTED] did not include any information about Morales in his November 1, 1988 Prosecutive Report on the Zona Rosa killings. [REDACTED] told us that he has no recollection of the information about Morales.

AUSA Murtagh told us that he had no recollection of ever learning about the details of Morales' arrest or reviewing any statements by him. Murtagh also stated that if he had received the information about Morales, he would have requested further investigation into his involvement in the attack. Murtagh said he would have probed the circumstances surrounding Morales' confession and whether there was any other evidence indicating he had been present during the attack. Because Murtagh was not aware of the Morales information, the question of whether other witnesses, such as [REDACTED], could identify Morales was never explored.

Murtagh stated that he might have included Morales in the Rivas indictment if there was sufficient evidence, but he would not have tried Morales alone because of the paucity of evidence against him. He also stated, however, that it is unlikely that he would have sought an indictment against Morales with only a confession to Salvadoran military authorities as evidence.

2. Other Alleged Perpetrators

The other three gunmen to the attack were never apprehended or identified. Julio died during the attack. Ulises and Walter were believed to have died in battle. Macias was never apprehended or fully identified.

J. DOJ Information on Alleged "Intellectual Authors"

1. Pedro Antonio Andrade

In Section IV of this report below, we provide a detailed description of the information DOJ obtained on Andrade. In that section we describe the intelligence implicating Andrade in the attack and how he was permitted to enter the United States on a public interest parole.

2. Jose Manuel Melgar, aka Rogelio Martinez

Pedro Andrade was captured by the Salvadorans in May 1989 and interviewed by the FBI in June 1989. Andrade told the FBI that Rogelio Martinez had planned the Zona Rosa murders and asked Andrade to arrange for medical care and safehouses for the guerrillas. Andrade's statement is fully detailed at Section IV(B)(5) of the report. Aside from Andrade's statement, we found no evidence in DOJ files of Melgar's involvement in the killings.

In February 1991, the United States Embassy reported to the FBI that Jose Manuel Melgar, one of the alleged intellectual authors of the murders, was still at large and reportedly was travelling frequently between Managua, Nicaragua and Mexico City as a "senior PRTC political/military operative." The Embassy requested that the FBI, in conjunction with AUSA Murtagh, interview Andrade to determine if there was sufficient evidence to indict Melgar and request his extradition. The Embassy was informed by DOJ that no new indictments were possible, because the five-year statute of limitations, discussed above, had run.

3. Francisco Alberto Jovel

Francisco Alberto Jovel Urquilla, aka Commander Roca, was believed by Salvadoran authorities to be a leader of the PRTC. In April 1989, at the request of the CIA, the FBI ran traces on the wife of Jovel, Celia Alfaro Jovel, aka "Elizabeth Sol," but this request was not related to the Zona Rosa investigation.

On September 19, 1994, the Director of the FBI sent a teletype to DOS, CIA, INS, and various FBI field offices advising them that DOS had informed the FBI that Francisco Jovel, aka "Roberto Roca," had applied for a transit visa for travel to Tokyo through the United States. The FBI stated that it was opposed to granting the transit visa because of Jovel's membership in and leadership of the PRTC, and the PRTC was responsible for the assassination of four United States Marines. The FBI stated that Mario Gonzales had told the Salvadoran police that Jovel was responsible for holding all PRTC records and was present at the PRTC residence on a daily basis. The FBI concluded that, based on Jovel's role in the PRTC and his possession of PRTC documents, it was highly likely that Jovel was "well aware" of the planning and execution of the Zona Rosa murders. The transit visa for Jovel was denied.

Aside from the statements by Andrade that Jovel was involved in the leadership of the PRTC, our review of DOJ files reveal no evidence of any involvement in the Zona Rosa killings. According to an FBI interview of Gilberto Osorio in December 1995, discussed in detail below, Jovel is now a member of the Salvadoran Congress.

K. Others Mentioned in Connection with the Murders

1. Gilberto Osorio

In Section IV of this report below, we provide a detailed description of the information DOJ had on Osorio. No information in DOJ files suggested that he participated in the Zona Rosa attack.

2. Pedro Vladimir Rodriguez

On January 17, 1986, the Salvadoran National Guard raided a house in San Salvador which reportedly had a cache of weapons, some of which had been used in the Zona Rosa attack. The National Guard arrested Pedro Vladimir Rodriguez and found a number of weapons in his home. Rodriguez' father, alleged to be a member of the PRTC, was not at home during the police raid and was never captured. According to Rodriguez, PRTC members Mario and Ulises delivered the weapons to the house on May 1, 1985. Rodriguez said that he and his father were responsible for guarding the weapons. Five days before the Zona Rosa killings, Ulises came to the house and told Rodriguez to prepare three M-16 rifles, one AR-15 rifle, one submachine gun, and two hand-grenades that Ulises would pick up later. Two days later, Ulises and Mario collected these weapons.

Rodriguez' brother told Salvadoran authorities that several days after the shooting, he saw the area of the arms cache had been dug up. This indicated to him that the weapons taken by Ulises and Mario may have been returned.

Rodriguez was able to identify Ulises from a photograph. Rodriguez stated that his "contact" with the PRTC was Walter, who told Rodriguez that he had participated in the Zona Rosa attack and that Julio had been killed during the attack. Another of Rodriguez' "contacts" in the PRTC, Jose Anibal Massferrer, later told Rodriguez that Ulises and Walter had been killed in the Salvadoran Air Force bombing of Guazapa in November 1985. Rodriguez was not charged by the Salvadorans and was released.

3. Other Perpetrators Mentioned in CIA, DOS and DOD OIG Reports

There is no information in DOJ files as to any of the other alleged perpetrators mentioned in the reports of the other OIGs.

L. Assessment of the Salvadoran and United States Efforts to Identify and Prosecute those Responsible for the Murders

1. Salvadoran Efforts

Several witnesses we interviewed stated that it was extremely difficult to identify and capture the perpetrators of a terrorist act in the middle of the Salvadoran civil war, and the Salvadorans deserve credit for arresting the perpetrators to the Zona Rosa murders and prosecuting them. For example, the Deputy Chief of the CIA's Station (DCS) in El Salvador between August 1984 and December 1986, said that the Salvadorans put in much effort on the Zona Rosa case because United States citizens had died, when many Salvadorans were being killed on a daily basis. The DCS recognized, however, that had the United States government not pushed the Salvadorans to act, the killings would not have been investigated as aggressively as they were, but instead would have been considered "war as usual" to the Salvadorans.

Ambassador David Passage, the Charge d'Affairs in El Salvador at the time of the murders, also reported that at the time of the murders no one at the Embassy believed that the perpetrators of the Zona Rosa murders or the FMLN could be taken to court in El Salvador. The Salvadoran prosecution of Zona Rosa defendants was therefore surprising.

Our assessment of the Salvadoran investigation is in accord with these statements. The Salvadoran efforts were reasonable in light of their experience and training and the context in which the crime occurred. While there were failings that would have seriously affected a United States prosecution--such as the failure to preserve the crime scene, to maintain an adequate chain of custody, to interrogate witnesses without any taint of coercion--the Salvadoran failures occurred not because of a lack of effort but because of poor training and the involvement of the military in a law enforcement investigation. By and large, we found that the Salvadorans demonstrated an aggressive effort to identify, prosecute, and incarcerate the guerrillas involved in the murders, particularly in view of the civil war being waged in El Salvador. Criminal prosecution of Salvadoran guerrillas, in the midst of a civil war, was an unusual concept. Military action was the usual response, and most guerrillas captured before the Zona Rosa killings were held without trial as prisoners of war. In this case, however, there were substantial efforts made by the Salvadorans to identify and prosecute the perpetrators, resulting in the apprehension and conviction of Rivas, Garcia, and Dimas, and the unsuccessful prosecution of Morales.

2. DOJ Efforts

We conclude that DOJ's investigative efforts were reasonable and thorough, despite the many obstacles that DOJ investigators faced, and that DOJ's prosecutive decisions were appropriate. The investigation of a case in a foreign country in the middle of a civil war was exceedingly difficult. The task was made more difficult by the initial investigative steps taken by the inexperienced Salvadoran police and their failure to preserve the crime scene. DOJ prosecutors and investigators made substantial efforts to uncover admissible evidence against Rivas in El Salvador and put a substantial effort into finding and then relocating eyewitness [REDACTED]. DOJ energetically pursued the prosecution of Rivas, at the request of DOS, even though the United States indictment was sought only as a "backup" to the Salvadoran prosecution. It was always uncertain whether the United States would ever gain custody of any Salvadoran defendants because of extradition problems. Nevertheless, DOJ gave the Zona Rosa case substantial attention, even in light of numerous other international terrorism cases requiring attention.

The FBI also made substantial efforts in this case, initially providing requested assistance to the Salvadorans and then assisting DOJ prosecutors when its case was opened in 1987. The investigative report compiled by the FBI concerning the Zona Rosa case reflected a substantial amount of work.

DOJ's decision not to seek indictments against anyone other than Rivas was reasonable in view of the absence of substantial admissible evidence against anyone else. A review of DOJ files revealed that the evidence against Garcia showed that, at most, he was an "accessory after the fact," because he overheard discussions of the murders and did nothing. No United States prosecution of Garcia would have been viable on that basis. Despite Garcia's statement to Salvadoran authorities that he was involved in the actual shooting, his later recantation of that "confession" and his lack of knowledge of the crime scene later convinced Salvadoran authorities that he was not directly involved. He was convicted of activities in support of terrorism, but he was not convicted of participating in the Zona Rosa attack. Similarly, there was insufficient proof that Dimas was involved either directly or in a conspiracy to kill the United States Marines.

We find there was insufficient evidence to prosecute any of the other alleged terrorists detained by the Salvadorans. Aside from statements by Andrade that Jose Manuel Melgar, alias Rogelio Martinez, and not Andrade himself, was the mastermind of the killings, no other evidence implicates Melgar in the murders. Our review of DOJ files also reveals no evidence to prove that Francisco Alberto Jovel, Pedro Vladimir Rodriguez, or his father, were involved in the Zona Rosa killings.

The one failure in this case concerned Juan Antonio Morales Lucero, who was arrested and tried in El Salvador for allegedly providing security during the Zona Rosa attack. From our review of this case, it appears that DOJ did not actively investigate this matter. Various documents about Morales' capture and admission were sent to the FBI, but these documents do not appear to have been forwarded to DOJ prosecutors and were not included in the FBI's November 1988 prosecutive report. As a result, no further investigation was conducted on Morales. This breakdown cannot be condoned. However, it appears that there was insufficient evidence to bring a case against Morales, who was acquitted in El Salvador. It is also unlikely that the United States would have ever obtained custody of him, especially after his acquittal in El Salvador.

A full discussion of DOJ's decision not to prosecute Pedro Andrade is found below in section IV.

In sum, we believe that DOJ's overall investigation of the Zona Rosa suspects was thorough and its prosecutive decisions reasonable.

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