Federal prosecutors have acknowledged a significant legal mistake that preceded a judge’s decision to release David Antonio Aviles Perez, an undocumented MS-13 suspect nicknamed “The Witch,” who is wanted in connection with a brutal murder, after the California Post reported on the ruling.
Aviles Perez, 35, is now at large in California following an Aug. 26 order issued by U.S. District Judge Jinsook Ohta.
In court Tuesday, prosecutors in San Diego apologized for the release of the alleged MS-13 member, who had been arrested by ICE agents in March on an international warrant and was being detained while awaiting removal from the United States.
Federal prosecutors conceded they did not inform Judge Ohta about Aviles Perez’s full criminal background, including a prior California arrest tied to allegations that he attacked a homeless man with a machete.
“My failure was an unintentional mistake, and I sincerely apologize to the Court for my omission,” Assistant U.S. Attorney Michael Wallace wrote in a sworn declaration, expressing regret over the oversight.
U.S. Attorney Adam Gordon and his office, which represents ICE in the matter, characterized Wallace’s failure to disclose the information as an isolated error.
Ohta has directed prosecutors to submit a written explanation for why they should not face sanctions. The judge also indicated she would not have released Aviles Perez had she been told about his alleged criminal history and reported connection to a gang-related execution.
The court has since authorized federal authorities to take Aviles Perez back into custody, provided they are able to locate him.
A federal law enforcement source with knowledge of the case said it’s “stunning” prosecutors failed to tell Ohta about Aviles Perez’s rap sheet — but said the judge still shouldn’t have set him free.
“Every illegal alien is subject to detention,” said the official. “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.”
California’s federal judges may order the immediate release of detained illegal migrants under the legal precedent 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.
But Ohta freed Aviles Perez before the government had a chance to justify his confinement at a bond hearing.
According to The Post’s source, this is common practice in California, and Ohta does it routinely.
“She’s an activist,” said the official. “She’s actually, in my view, the worst one by far in the Southern District of California.”
Ohta, who was appointed to the federal bench by then-President Joe Biden in 2021, did not respond to requests for comment.
Aviles Perez has a record of violence in the US, as well as abroad: He was arrested in 2023 for assault with a deadly weapon after he allegedly swung a machete at a man in Monterey, Calif., 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 he was arrested by ICE earlier this year, DHS officials said.
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, authorities reported.
In July 2014, Aviles Perez and an accomplice named Ismael Enrique Mendoza Flores were accused of murdering a man in the town of Yucuaiquín in El Salvador’s eastern state of La Union, according to the country’s attorney general.
Aviles Perez — known as “La Bruja” or “The Witch” — 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 Dec. 16.
It’s 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 The Post broke the story of his release, Ohta took heavy criticism for her decision to free him.
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,” Mullen said. “Because sanctuary politicians want to play politics from the bench, innocent Americans are in danger.”
Aviles Perez’s release came as another gang-affiliated Salvadoran, Luis Valle, was also ordered released from ICE custody while awaiting removal.
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.
Linda Lopez, another judge in the same court district as Ohta, ordered Valle released from ICE detention, ruling there is “good reason to believe that there is no significant likelihood of his removal in the reasonably foreseeable future.”
