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BP agent, facing assault charge, called people on border 'savages' and 'subhuman'

Defense attorney says terms are 'commonplace,' but would prejudice jury

A Nogales Border Patrol agent — accused of running down a Guatemalan man and then lying about it — called people apprehended by agents "disgusting subhuman shit," and repeatedly used a racial epithet for border-crossers in text messages, court documents say. His attorney has said the language used by the agent is "commonplace" within Border Patrol, and it being presented in court would "prejudice" a jury.

Border Patrol Matthew Bowen is accused of assaulting Antolin Rolando Lopez-Aguilar, a 23-year-old Guatemalan man, by striking him with his Ford F-150 during an incident on Dec. 3, 2017 in Nogales, Ariz.

Bowen also faces a charge that he falsified records in a federal probe: "knowingly" doing so "with the intent to impede, obstruct, and influence" an investigation. In memo to the chief patrol agent of the BP's Tucson Sector, Bowen wrote he wasn't sure if his vehicle had contacted Lopez-Aguilar, and that "he never intended to strike, scare, or otherwise come into contact" the man, according to an indictment filed against Bowen in May 2018.

Bowen, an agent since 2008, was placed on indefinite suspension without pay following his indictment, said a U.S. Border Patrol spokesman.

Over the last few months, federal prosecutors and Bowen's defense attorneys have battled over whether or not a jury will be shown several dozen texts between Bowen and other agents, sent both before and after the 2017 incident. 

As part of an investigation against Bowen, federal investigators were told that he had texted another agent, and so they obtained a search warrant for his personal cellphone, and extracted more than 1,300 text messages over a four-month period. 

Federal prosecutors Lori Price and Monica Ryan argued in a court filing that the text messages sent by Bowen to other agents "speak to the defendant's state of mind and intent in committing this civil rights crime." Bowen's intent, and "any evidence relevant to it, is the crux of the case," Price wrote. 

"Whether the defendant acted willfully is a high burden. The government must prove to the fact-finder what the defendant was thinking," she wrote. Bowen, she wrote, claimed he hit Lopez-Aguilar accidentally, but the text messages, "the defendant’s statements to his confidantes, show otherwise," she wrote. 

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The agent's text messages show intent, and he voiced "significant dissatisfaction with restrictions Border Patrol placed on its agents in how they could apprehend aliens and do their jobs," she said. 

"He also voiced great disdain for the aliens," she wrote, as first reported by the Arizona Daily Star's Curt Prendergast.

Among the agents Bowen texted was Lonnie Ray Swartz, who was acquitted last year of second-degree murder and manslaughter charges during two separate jury trials. Swartz was accused of unlawfully shooting and killing 16-year-old Jose Antonio Elena Rodriguez during a cross-border incident nearly seven years ago. 

In his message to Swartz, Bowen described the incident, writing: "I used an f150 to do a human pit maneuver on a guat running from an agent. It was in front of cameras and everybody thought I ran him over so they made it into an SIR even though the tonk was totally fine. Just a little push with a ford bumper." 

"Guat" is apparently short for Guatemalan, and a "human pit maneuver" is a reference to the Precision Immobilization Technique, or PIT, a maneuver in which an agent uses his vehicle to disable a fleeing vehicle by ramming it and pressing the rear quarter panel so it spins out and stops. 

"A 'human pit maneuver' is not a recognized law enforcement term but it is an accurate description of the defendant’s actions in the charged crime," wrote Price. 

In another message, Bowen complains that if he had to tackle Lopez-Aguilar, "I would still be doing memos and shit. I wonder how they expect us to apprehend wild ass runners who don’t want to be apprehended?" he wrote. 

However, Sean Chapman, a lawyer who regularly represents Border Patrol agents in court, argued that showing these texts to a jury would prejudice them, and that such language is "commonplace throughout the Border Patrol's Tucson Sector, that it is part of the agency's culture, and therefore says nothing about Mr. Bowen's mindset." 

Chapman argued that the court should not allow the messages to be presented during the trial, holding back messages between Bowen and attorney Jim Calle, as well as messages that could be perceived as racist or offensive, including communications where Bowen regularly uses the word "tonk." 

Chapman said that the messages "that refer to aliens in a pejorative manner, or that reflect Mr. Bowen’s political beliefs, have no bearing on any element of the offenses the Government will seek to prove at trial."

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Even if they have some connection, their probative value is so limited that the prejudice caused by their admission makes them excludable" under federal rules. "Similarly, the fact that Mr. Bowen was dissatisfied with his job is immaterial to the issues before the jury," Chapman wrote. 

"In sum, it would be improper for the jury to infer that Mr. Bowen’s feelings about the Border Patrol, or his responsibilities as an agent, or his interaction with aliens, caused him to disregard constitutional rights." 

The term "tonc" or "tonk" is widely used by agents to refer to border crossers, but the term's origin is unknown. Some have said that the term refers to the sound of a metal flashlight hitting a skull, while others have claimed that it stands for "temporarily outside naturalized country," or "true origin not known." 

Agents involved in the case against Scott Warren, a No More Deaths volunteer, who was arrested and charged for harboring in January 2018 in Ajo, Ariz., also used the term "toncs," in group texts. 

"The communications reflect the agents’ thoughts on Agent Swartz’s case, including references to specific evidence. None of this is related to Mr. Bowen’s case; indeed, these communications occurred prior to the conduct at issue," Chapman wrote.

In one message to Swartz on November 20, just weeks before the incident, Bowen complains about a rocking incident, and calls the people involved, "mindless murdering savages." 

"PLEASE let us take the gloves off trump! and we all just responded to code to 2 agents trying to catch 5 tonks at the fence in mariposa, tonks starting rocking caused one agent to fall and sustain a gash to his arm. disgusting subhuman shit unworthy of being kindling for a fire," Bowen wrote.

Another agent wrote to Bowen on Dec. 18, asking, "Did you gas hiscorpse or just use regular peanut oil while tazing?? For a frying effect...." 

Bowen replied, "Guats are best made crispy with an olive oil from their native [country]." 

Price wrote that jurors should see the text messages, because as "evidenced by his text messages" Bowen changed the "characterizations"of his actions and his "intent changed" after his law enforcement authority was revoked based on the incident, and he was put on "light duty." 

In a statement, Tucson Sector Border Patrol said that the agency, "respects the judicial process and is committed to maintaining the public trust through preserving the integrity, accountability, and transparency of our workforce and agency."

"As law enforcement professionals, we stress honor and integrity in every aspect of our mission," said a Tucson Sector spokesman. "Border Patrol agents are held to the highest standards, and any action of misconduct within our ranks will not be tolerated. Every employee is held to these standards of professionalism and is responsible for their actions regardless of rank, position, or length of service," the spokesman said. 

Price's statements are important because he submitted a supplemental memo to the Tucson Sector's chief, "even though no one had requested it," and in the memo, Bowen claimed he was "unfamiliar with the particular F-150 truck he was driving." 

Bowen wrote that he was unfamiliar with the new truck's braking and acceleration power and that in an attempt to get close enough to the running man, he made a mistake of "getting too close to the victim while accelerating," Price said. According to Price, Bowen wrote in the memo, "in the future, I will adjust my tactics so that accidents like this do not occur." 

However, "the defendant’s own statements in the text messages above contradict his claims in his memo," Price wrote. 

Two strikes

The incident began on a Sunday morning around 7:30 a.m., when U.S. Customs and Border Protection operating Remote Video Surveillance Systems, saw a man on foot who appeared to have just "jumped the border fence at or near" the Mariposa Port of Entry. 

The officers called the Nogales Border Patrol station and Border Patrol agents, operating their own cameras spotted a man walking along the fence near the port. 

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The man headed toward an open lot where several semi-tractor trailers were parked by a nearby Shell gas station, around 100 yards from the border. 

About two to three minutes later, three Border Patrol agents responded, including Matthew Jaseph, Khalil Garcia, and Bowen. Bowen was driving a relatively new 2017 Ford F-150 truck, often referred as as a "Kilo Unit" by agents. As Jaseph got out of his vehicle and searched for the man on foot, the other agents drove around slowly. 

A few minutes later, Jaseph spotted Lopez-Aguilar, and ordered him to surrender, but instead the man turned and fled back to the border. 

According to recommendation written by Magistrate Judge Thomas Ferraro regarding the text messages, as Lopez-Aguilar ran, Bowen "quickly" turned his vehicle around and "accelerated aggressively into a position behind" him. "This maneuver put the front grille" of Bowen's vehicle "directly behind Lopez-Aguilar."

As the man ran, the agent "followed closely behind him, striking Lopez-Aguilar twice with the front" of his vehicle. Lopez-Aguilar reached back while running, and used his hand to push off the vehicle, in "an apparent attempt to create space behind himself and the front of the truck, which had come up quickly behind him." 

"Less than two seconds later, BPA Bowen accelerated the Subject Kilo Unit directly into the back of Lopez-Aguilar's body, knocking Lopez-Aguilar to the ground," Ferraro wrote. "The tires of the Subject Kilo Unit truck came to a full stop within inches of running Lopez-Aguilar over where he lay on the ground," he wrote. 

During an hour-long April 10 hearing, Chapman asked the court to preclude most of the 1,300 messages, arguing that they were not relevant, including messages between Bowen and other agents regarding his plans to leave the agency and start a new career, including attending real estate school, flipping houses, and purchasing a restaurant franchise, as well as messages regarding a trucking business that Bowen started with two other agents.  

In one text to Swartz weeks before the incident, Bowen complained that the Border Patrol was a "failed agency" and that he intended to quit.

"Ive really come to realize the whole government is a fucking failed system, this is a failed agency its sad bc BP does really important work but we are treated like shit, prosecuted for doing what it takes to arrest these savages and not given appropriate resources to fully do our job..."

After the incident, he wrote, "BP is just meant to destroy guys that want to catch people."

In a Report and Recommendation opinion, Ferraro agreed that the court should withhold texts sent before December 3 as they were "outside of the warrant's scope," but messages sent afterward shouldn't be suppressed. 

Chapman objected to this reasoning, and he asked the court to block the prosecutor's from presenting evidence regarding five other incidents in which Bowen faced accusations of "unnecessary roughness." 

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"The Government has indicated its intent to introduce evidence of five separate past occurrences in which Mr. Bowen allegedly injured an alien in his custody," Chapman said. But, the "only instance that involves a vehicle is very different from what is alleged in the indictment," Chapman wrote. "None of the other acts demonstrate that, in different circumstances, Mr. Bowen intended to use his vehicle to harm an alleged victim," he said. 

Prosecutors said that if Bowen testified in his defense, they would present evidence of five previous times that Bowen faced use-of-force accusations. In a January 2012 incident, Bowen allegedly forced a man out of a car after he argued with the agent, and "threw him to the ground and handcuffed him," Price wrote. 

Chapman said that the man gave him "attitude" and forced him to the ground, and noted that no disciplinary actions were taken by Homeland Security officials. 

In March 2015, Bowen allegedly tackled a man from behind and he suffered a "busted lip" when he hit the ground. "Another agent disagreed that it was necessary to arrest the individual in that manner," and Bowen received an “oral admonishment” from his supervisor regarding this event. Three weeks later, he was again admonished, this time for dragging a detainee up by his handcuffs after he fell on steep terrain. 

In September that year, Bowen faced a complaint that he used excessive force in detaining a juvenile, and a fellow agent reported that the migrant "was bleeding from his lip" and Bowen "bragged about how hard he took the juvenile down," prosecutors wrote. 

However, Chapman replied in his own motion that "numerous interview failed to corroborate the allegation of excessive force."
Finally, prosecutors said that Bowen put a handcuffed man on the front of his ATV and "intentionally slammed on the brakes, causing the alien to launch forward. However, Chapman argued that the allegations were not sustained and "no further action was taken." 

Chapman said that the government's attempt to present these incidents violates federal evidence rules. "Evidence of prior complaints against Mr. Bowen will undoubtedly cause the jury to conclude that he acted in conformity with these past actions, and thus is inadmissible in this criminal case," he said. "...there is no legitimate basis for admitting this evidence, which is clearly meant to show that Mr. Bowen has a history of abusing aliens in his custody by imposing excessive force upon them, and that he did so on this occasion as well." 

The court has yet to rule on the remaining motions, and a jury trial is scheduled to begin August 13 at 9:30 a.m. in front of U.S. District Judge Cindy K. Jorgenson.

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