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No cross-exam about Army desertion in BP agent's murder trial

A federal judge ruled Thursday that Lonnie Swartz, the Border Patrol agent accused of unlawfully killing a Mexican teenager in a cross-border shooting, cannot be cross-examined about his military record.

U.S. District Judge Raner C. Collins said Lonnie Swartz's military service records, which includes his arrest for desertion, are more than 10 years old, and that the defense can make the "argument that the defendant fully disclosed can be made in good faith."

Swartz was indicted by a U.S. grand jury on a second-degree murder charge in September 2015, but while Swartz's trial was originally slated to begin in November that year, a series of delays, motions and hearing have dragged the process out to March 20, 2018 when a jury trail is slated to begin.

"Therefore, the Court will not permit the defendant to be cross-examined on the issue of his military record," Collins ruled.

According to court records, Swartz joined the U.S. Army in November 1995, but a few months later, in January 1996, he went "absent without leave" and was designated as a deserter. A warrant was issued for his arrest, and 21 months later, Swartz was arrested in Las Vegas by the city's police department and the FBI.

Swartz was given the option to accept a discharge from the U.S. Army under "other than honorable conditions," instead of a court-martial, and he left the military in February 1998.

Federal prosecutors argued that when Swartz applied to the Border Patrol, he falsified his security application that he had never been arrested by law enforcement officers, and he also made a false written statement on a questionnaire, at one point saying that he "quit" the military.

In 2014, during a second background investigation, Swartz wrote that he was in the military from November 1995 to December 1995, and told an interviewer that after his Army basic training, he "realized his joining the Army was a mistake and resigned."

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Prosecutors argued that such statements should mean that once Swartz takes the stand and puts his "credibility at issue," Swartz's false statements "relate directly to his character for truthfulness."

"The jury should be apprised of those statements in evaluating his credibility on the witness stand," wrote Wallace Kleindienst , assistant U.S. attorney. "The fact that these statements were made when he applied to become a Border Patrol Agent, and thereafter to continue in that position, make them particularly germane to this case which involves his conduct as a Border Patrol Agent."

While defense lawyers had pushed to also preclude jurors from hearing about Swartz's records as a Border Patrol agent, Collins wrote that Kleindienst will "point out the fifteen or so documents he intends to use," and if defense council objects, they should inform the court.

Sean Chapman, one of Swartz's lawyers had moved to preclude the government from telling the jury that Swartz is currently on "leave without pay," arguing that "the risk of prejudice and jury confusion" meant that the information should withheld.

Jurors could "infer that the Border Patrol’s action in placing Agent Swartz on 'leave without pay' status means the agency reached a conclusion that he did something to violate the agency’s policies, including the Use of Force policy that is central to this case," Chapman wrote.

Just this week, defense lawyers filed a flurry of motions, including a move to keep members of Rodriguez's family from testifying, as well as a move to explain to the jury that if convicted, Swartz could serve 10 to 20 years in prison.

Collins also ruled that the government should hand over elements used to develop a computer model of that night's events, which included video captured by Border Patrol cameras, as well as measurements developed from laser measurements of the scene.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

An altar in Nogales, Sonora for Jose Antonio Elena Rodriguez, a 16-year-old boy who was shot and killed by U.S. Border Patrol agent Lonnie Swartz in October 2012.