Sniper suspect John Lee Malvo, arrested in December as an illegal alien, avoided deportation to his native Jamaica when the U.S. Immigration and Naturalization Service overruled a Border Patrol recommendation that the teenager be sent home.
Mr. Malvo, 17, and his mother, Uma Sceon James, were arrested Dec. 19 by Border Patrol agents in Bellingham, Wash. After being told by Mrs. James that she and her son were stowaways on a ship that arrived in Miami, the Border Patrol set into motion a recommendation for immediate deportation, law-enforcement sources said.
That recommendation, however, was overturned by the INS when Mrs. James told a contradictory story about how she and her son were not stowaways but had been smuggled into the United States.
"Somebody dropped the ball here," said one Border Patrol agent familiar with the case. "We did our job. He should have been returned home. Because he wasn't, some people paid a very high price."
Within weeks of his release, Mr. Malvo was on the road with John Allen Muhammad, 41, identified by police and prosecutors as the suspect who masterminded a series of sniper attacks in the Washington area that killed 10 persons and wounded three.
Two Virginia counties yesterday charged Mr. Muhammad and Mr. Malvo with capital murder, joining Montgomery County in a legal tug of war with federal prosecutors and one another on which jurisdiction will get the first crack at bringing the two suspects to trial.
The Justice Department, which has custody of the two men, is expected to make the final decision. Mr. Muhammad is being held on federal weapons charges. Mr. Malvo was named on a federal material witness warrant in the shootings.
In the INS flap, Mr. Malvo and his mother initially were confronted by police in Bellingham, Wash., responding to a call of a domestic dispute. Discovering that neither the woman nor her son had legal identification papers, they called the Border Patrol.
"They were determined to be illegal aliens from Jamaica," said John Bates, deputy chief of the Border Patrol's Blaine, Wash., sector, which handled the case. "The agents processed them for deportation, and they were transferred over to the INS district office in Seattle."
But when they got there, INS officials found "some discrepancies" in the Border Patrol's arrest report, according to an INS official in Seattle who spoke on the condition of anonymity. The official said the report classified the two as "illegal stowaways, which means they could be deported without any legal rights."
A later sworn statement by Mrs. James, the official said, convinced INS that she and her son had been smuggled into the country. That distinction led INS to reclassify them as "illegal entry without inspection."
"When you're held as an illegal entry without inspection, you are afforded more rights," the official said. An immigration hearing was set for Nov. 20 and when a background check turned up no criminal record, Mrs. James was ordered held on $1,500 bond and Mr. Malvo was sent to a youth detention facility in Seattle.
Within three weeks, Mrs. James had raised the bond money and was released. Mr. Malvo was released into her custody.
"If he didn't have a custodial guardian, we probably would have wound up holding him until there was someone else we could release him to," the official said.
INS officials in Washington, D.C., have referred inquiries in the Malvo case to the sniper task force. INS officials in Seattle told The Washington Times they "followed standard procedure" in releasing Mr. Malvo, who is suspected of taking turns with Mr. Muhammad in firing the .223-caliber semiautomatic rifle that ballistics tests have linked to the sniper attacks.
Fairfax County prosecutor Robert Horan Jr. said yesterday that evidence shows that either suspect could have fired the shot that killed FBI analyst Linda Franklin on Oct. 14 outside the Home Depot in Falls Church.
"There will be some evidence that the juvenile was the shooter, just like there will be evidence that the adult was the shooter," Mr. Horan said. "But the point is, we don't know right now, and no one knows right now."
As the numerous jurisdictions continued yesterday to haggle over who gets the Muhammad-Malvo prosecution first, Spotsylvania County prosecutors charged the two men with capital murder and five other counts for two shootings, while Hanover County prosecutors charged them with seven counts in the a wounding of a man outside a restaurant on Oct. 19.
Both counties charged Mr. Malvo as a juvenile, but officials said they will move to try him as an adult.
In Spotsylvania County, the pair is charged with the Oct. 11 slaying of Kenneth Bridges, 53, of Philadelphia at a gas station in Massaponax, and the Oct. 4 wounding of an unidentified woman in front of a Michaels craft store in Fredericksburg.
They also are accused in the Oct. 19 wounding of a 37-year-old Florida man at the Ponderosa restaurant in Ashland in Hanover County. The unidentified man remains in stable condition at a Richmond hospital.
The Justice Department has not publicly weighed in on the debate. U.S. Attorneys Paul J. McNulty in Virginia, Thomas M. DiBiagio in Maryland and Roscoe C. Howard Jr. in Washington, D.C., met Friday with Deputy Attorney General Larry D. Thompson to decide if the suspects should face federal charges.
A department official said that under federal law the men could face the death penalty under conspiracy charges if prosecutors can prove a continuing criminal enterprise. The motive for their actions would have to be the $10 million ransom they are said to have requested in exchange for stopping the shootings.
Montgomery County State's Attorney Douglas F. Gansler yesterday urged the Justice Department to back off, arguing that Montgomery County should prosecute first because it has the strongest case and had the most victims.
But Virginia Attorney General Jerry W. Kilgore said Virginia should have the first chance to try the case because it can more easily apply the death penalty. He has also said state law provides double-jeopardy protection to the suspects should federal prosecutors try them first.
"Virginia authorities and the federal officials are in agreement that Virginia's laws are better suited to try, convict and punish those responsible for these horrible crimes," he said.
To qualify for a death sentence in Maryland, a defendant must be found guilty of first-degree murder and meet one of 10 aggravating circumstances. In the Muhammad case, Mr. Gansler said he would use as an aggravating factor that more than one killing was committed "arising out of the same incident."
But Baltimore County State's Attorney Sandra O'Connor, who tries the most death-penalty cases in Maryland, said the death-penalty statute would not be applicable because the murders took place at different times and places.
"It's not one incident. It's ridiculous," she said. "If you're going to have a statute, it should cover serial murder, but wishing doesn't make it so."
In a related matter, Nathaniel Osbourne, a material witness in the sniper investigation, is expected to be moved shortly from Flint, Mich., to Maryland, where he will be questioned about the shootings. He is the co-owner of the 1990 Chevrolet Caprice in which Mr. Muhammad and Mr. Malvo were arrested.
Authorities found a 3-inch hole cut in the car's trunk and believe it was used by the men as a "gun port." They said the back seat was removable and a shooter could have used the trunk to fire at victims undetected.
Mr. Osbourne was ordered held without bond during a court appearance in Flint.
Authorities said last night that they had linked Mr. Muhammad to the Tacoma, Wash., shooting death of a 21-year-old woman whose aunt, Isa Nichols, once worked for his auto-repair business.
Mr. Muhammad also has been linked to a shooting in the spring at a synagogue in Tacoma in which no one was injured, local police and representatives of the federal Bureau of Alcohol, Tobacco and Firearms said at a news conference.
Police Chief David Brame said a local resident contacted the FBI last week and said he had allowed Mr. Muhammad and Mr. Malvo to borrow his weapons, including a .45-caliber semiautomatic handgun.
Keenya Cook was shot in the face Feb. 16 when she opened the door to her house.
Tacoma police spokesman Jim Mattheis has said Miss Cook's family recognized Mr. Muhammad from news photos after his arrest in the sniper cases and called authorities.
Miss Cook had moved into Mrs. Nichols' home in the fall of 2001 for protection from an abusive boyfriend. Members of Miss Cook's family had wondered if Mrs. Nichols was the intended target.
•Jabeen Bhatti contributed to this report.