Assistant U.S. Attorney Michael Wallace admitted in a sworn declaration that his office failed to disclose an accused MS-13 killer’s criminal history to a federal judge, leading to the man’s release from custody.
Wallace, 35, wrote the apology after federal Judge Jinsook Ohta freed David Antonio Aviles Perez, known as “La Bruja” or “The Witch,” on August 26. San Diego prosecutors begged forgiveness in court on Tuesday for the legal blunder that allowed the accused gang executioner to walk free in California.
“My failure was an unintentional mistake, and I sincerely apologize to the Court for my omission,” Wallace wrote in his sworn declaration.
U.S. Attorney Adam Gordon and his office, which represents ICE, characterized Wallace’s omission as a one-off error. Ohta, who was appointed to the federal bench by then-President Joe Biden in 2021, responded by ordering the prosecutors to submit a written argument explaining why they should not be punished.
Ohta stated she would not have released Aviles Perez had she known about his criminal past and alleged link to a gang execution. She has authorized federal authorities to arrest him again, though authorities have not yet located him.
A federal law enforcement source with knowledge of the case called the prosecutors’ failure “stunning.” The official added that the judge still should not have ordered Aviles Perez’s release regardless of what she was told.
“Every illegal alien is subject to detention,” the official said. “Ohta should have been told about the criminal history, but it also shouldn’t matter because she shouldn’t be ordering anybody to be immediately released from custody, except in extraordinary circumstances.”
The same official delivered a blistering assessment of Ohta’s judicial record. “She’s an activist,” the official said. “She’s actually, in my view, the worst one by far in the Southern District of California.”
Aviles Perez, 35, was captured by San Diego ICE agents in March on an international warrant and was being held pending removal from the US. His release came as another gang-affiliated Salvadoran, Luis Valle, was also ordered freed from ICE custody while awaiting removal by Linda Lopez, another judge in the same court district as Ohta.
Valle, a convicted first-degree murderer, was sentenced to life in prison with the possibility of parole for a murder he committed in Los Angeles in the early 1990s. He was released from state prison on parole just last year. Lopez ruled there is “good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future.”
California’s federal judges may order the immediate release of detained illegal migrants under the ancient legal precedent called “habeas corpus,” which allows any person in custody to challenge the legality of their detention. A writ of habeas corpus orders the government to bring the detained individual before a judge and prove they have the legal right to hold them. If the government fails to justify the confinement, the court must release the individual.
Ohta freed Aviles Perez before the government had a chance to justify his confinement at a bond hearing. According to the federal law enforcement source, this is common practice in California, and Ohta does it routinely.
Aviles Perez’s violence spans multiple countries and nearly a decade. In July 2014, he and an accomplice named Ismael Enrique Mendoza Flores were accused of murdering a man in the town of YucuaiquÃn in El Salvador’s eastern state of La Union, according to the country’s attorney general. Aviles Perez and his fellow gang members followed the victim and shot at him during a dispute, according to an alert issued by the country’s attorney general on December 16.
In December, officials in El Salvador sentenced Aviles Perez to 20 years in prison on a charge of aggravated homicide for the execution of an MS-13 adversary. He was arrested in 2023 for assault with a deadly weapon after he allegedly swung a machete at a man in Monterey, California, according to Department of Homeland Security officials and police documents. The illegal immigrant was released under California’s sanctuary laws and remained at large until ICE arrested him earlier this year.
It remains unclear how or when Aviles Perez entered the US, but he first appeared on California law enforcement’s radar nearly a decade after the El Salvador murder, with his arrest for the machete attack.
After news broke of his release, Ohta took heavy criticism for her decision. Homeland Security Secretary Markwayne Mullin issued a statement saying her actions “put American lives at risk.”
“This is now the second time this dangerous illegal has been released back onto the streets in California,” Mullin said. “Because sanctuary politicians want to play politics from the bench, innocent Americans are in danger.”
Ohta did not respond to requests for comment.
Wallace and his office must submit their written argument explaining why they should not face sanctions.