According to the review, prosecutors with the U.S. attorney’s office in Arizona repeatedly declined to indict Kingery when they had opportunities to do so in 2010 and 2011. The report also said agents with the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) failed to insist upon strong enforcement action against the suspect.
“[G]iven the seriousness of Kingery’s offenses, his connection to Mexican drug cartels, his residence in Mexico, his drug use, and his repeated, undetected border crossings, Kingery represented a danger to the public and risk of flight,” Horowitz said.
During one operation in 2009 and 2010, ATF agents intercepted and marked grenade hulls that Kingery had ordered for shipment to his mother’s home. They then allowed the parts to be delivered to Kingery, with the goal of eventually proving that he was moving the goods to Mexico.
Grenade hulls with similar markings were later recovered by Mexican soldiers after a gun battle with members of a drug cartel, the report said.
In 2009, the U.S. attorney’s office gave “clear guidance” to ATF agents that grenade components are controlled items under the Arms Export Control Act, and prosecutors told the agents to confiscate the parts if Kingery attempted to carry them across the border, according to the review.
Later, the attorney’s office gave agents the impression that it supported another tracking effort involving Kingery, contradicting its earlier advice. Inspectors found that ATF agents “could have reasonably believed the U.S. Attorney’s Office concurred with ATF’s plan” for a 2010 operation, the report said.
In June 2010, U.S. Customs and Border Protection agents stopped Kingery as he was attempting to cross into Mexico from Arizona. They found 114 grenade hulls, 114 grenade fuses and more than 2,000 rounds of ammunition inside a spare tire attached to his vehicle, according to the inspector general.
Kingery admitted that he loaded the parts and ammunition into the tire and that he knew crossing the U.S.-Mexico border with the items would be illegal, the report said. Nonetheless, Assistant U.S. Attorney Emory Hurley declined to bring charges against Kingery that evening, as well as after a voluntary follow-up with law-enforcement officials the next day.
Approximately one week later, Kingery was stopped trying to reenter the United States, and ATF agents requested that Hurley agree to an immediate arrest. But the prosecutor declined again, and Kingery returned to Mexico, where he was arrested by Mexican authorities in August 2011.
Rep. Darrell Issa (R-Calif.), who chairs the powerful House Oversight and Government Reform Committee, criticized Hurley in a statement Thursday, saying he “allowed a dangerous individual to remain free and continue his criminal activities, placing public safety at risk on both sides of the border.”
Issa has been one of the harshest critics of the Justice Department and the Obama administration for its handling of the Fast and Furious operation, for which Hurley was a lead prosecutor.
The Fast and Furious program, which started during the George W. Bush administration and lasted into early part of President Obama’s tenure, allowed weapons from the United States to pass into the hands of suspected firearms traffickers. The goal of that program was to track the weapons to the upper levels of Mexican drug cartels. One gun linked to a suspected smuggler was found at the scene of the fatal 2010 shooting of U.S. Border Patrol agent Brian Terry.
On Thursday, Issa and Sen. Charles Grassley (R-Iowa) sent a letter to Attorney General Eric Holder demanding additional information about the Kingery case, including facts about “the level of involvement among various components of the Justice Department.”
The Justice Department said Thursday that it has taken “aggressive action” to ensure that the issues raised in the report do not occur again.
“The department does not condone the conduct that occurred during this investigation, and those individuals identified by the report as responsible for the operation have either been reassigned or left the department,” the agency said in a statement.
* Sari Horwitz contributed to this report