BP agent charged with running down Guatemalan man pleads guilty to civil rights violation
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BP agent charged with running down Guatemalan man pleads guilty to civil rights violation

Border Patrol's Matthew Bowen will leave agency after plea deal; called people on border 'savages' and 'subhuman shit'

A Nogales-area Border Patrol agent, accused of assaulting a Guatemalan man and then lying to supervisors about the incident, agreed to plea guilty to a misdemeanor civil rights violation, his lawyer said Monday. 

BP Agent Matthew Bowen was accused of assaulting Antolin Rolando Lopez-Aguilar, a 23-year-old Guatemalan man, by striking him with his Ford F-150 pickup on Dec. 3, 2017 in Nogales, Ariz., and then later not being truthful about the incident in a memo he submitted to supervisors.

Bowen was indicted in May 2018, and his trial was scheduled to begin with jury selection on Monday afternoon, with opening arguments Tuesday morning.

Instead, he decided to accept the plea bargain, under which he may receive probation, and agreed to resign from the Border Patrol, said Sean Chapman, Bowen's attorney.

Related: Jury to see 'racially offensive' texts by BP agent accused of running down suspect

The plea deal came just days after federal prosecutors informed Bowen's attorneys that they had new video evidence of the incident.

Chapman told the court at the beginning of the month that prosecutors had "disclosed additional video-graphic evidence of the event in this case" just 11 days before the trial was scheduled to begin. The defense attorney said that video "appears to provide greater clarity and detail than that which has been previously disclosed" and asked to delay the trial.

The judge had previously ruled that jurors would be shown texts sent by Bowen that included "racially offensive" language about border-crossers.

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The U.S. Attorney's Office did not respond to a request for comment about the plea deal on Monday.

Just days before trial, Chapman filed a motion, writing that on Tuesday, August 6, he was "contacted by an attorney from the U.S. Attorney’s Office in Phoenix to discuss a possible pre-trial resolution to this matter." 

On Friday morning, the "parties agreed to the terms of a plea agreement which will resolve this matter," Chapman wrote. 

The move followed a court hearing in which the government agreed not to show videos captured of the incident on a "frame-by-frame" basis. Instead, the jury would have been shown the entire video, and U.S. District Judge Cindy K. Jorgenson agreed to allow some of Bowen's texts to be shown to the jury, as well as a news article that he read, and reacted vehemently in a text message to another agent. 

Indictment

Bowen was indicted last May for "willfully" depriving Lopez-Aguilar of his rights by using excessive force. 

"Specifically, Bowen assaulted A.L.-A. through the use of a dangerous weapon by intentionally striking A.L.-A. with a motor vehicle, resulting in bodily injury," federal prosecutors wrote. 

In the original indictment, prosecutors referred to Lopez-Aguilar as "A.L.-A," however, in subsequent legal filings, Lopez-Aguilar was readily identified.

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

Bowen was indicted for "knowingly" making a "false entry in a document, with the intent to impede, obstruct, and influence the investigation," by submitting a memo to the head of the Border Patrol's Tucson Sector in which he "falsely stated that he was not sure if his vehicle contacted" Lopez-Aguilar, and that "he never intended to "strike, scare or otherwise come into contact" with the man, who was fleeing from the agent when he was hit. 

After his apprehension by Bowen, Lopez-Aguilar was sent to Operation Streamline, a fast-track immigration court in Tucson, and received a 30-day sentence for improper entry from U.S. Magistrate Judge Eric J. Markovich. 

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Chapman, who regularly defends Border Patrol agents from civil lawsuits and criminal prosecutions, noted that last year he defended Border Patrol Agent Lonnie Ray Swartz, and that the accuracy of the videos presented by the government in that case were "also a matter of great dispute between the parties." 

Swartz was acquitted last year of second-degree murder and manslaughter charges during two separate jury trials after he was accused of unlawfully shooting and killing 16-year-old Jose Antonio Elena Rodriguez during a cross-border incident nearly seven years ago.

During the trials, and in pretrial motions, Chapman repeatedly challenged the government's evidence in that case, and argued that U.S. Customs and Border Protection had failed to retain two digital video recorders that were in use in 2012, as well as challenged how the government handled the video files that were copied from the DVRs and given to the FBI.

An expert in video evidence said during both trials that the original video used as evidence in Swartz's prosecution was too small, and that a system of compressing the video files to make them smaller and easier to store meant that the video could not be trusted to show motion nor be the basis for a 3D model presented by prosecutors.

At the beginning of the month, Bowen indicated to the court that the defense would need time to review and defend against the newly disclosed videos.

"The video produced to the defense appears to provide greater clarity and detail than that which has been previously disclosed. This evidence is critical to the case because it impacts both counts in the indictment," Chapman wrote, asking the judge to delay the case so the defense can have experts review the new video.

The video "provides additional evidence regarding whether or not Agent Bowen actually hit the victim with his vehicle — a matter that has been the subject of dispute by the parties," Chapman said. 

And, "this evidence is relevant to whether or not Agent Bowen made a false statement in his report when he stated that he was not sure whether or not he impacted the victim with his vehicle," he wrote.

"The defense, through the use of expert testimony, was able to expose significant problems with respect to the accuracy and reliability of the video evidence presented by the government in (Swartz's) case," Chapman wrote to the judge in Bowen's case. "Given that the government is now seeking to present video-graphic evidence that purports to show with great accuracy what occurred in this case, it is now incumbent upon the defense to consult with an expert on this issue," he said. 

However, Chapman argued that it "is simply impossible" at "this late date, to retain and consult with an expert prior to the current trial date," and he asked for delay in the trial.

The videos in question have not been published in court records, and neither federal prosecutors or Chapman have detailed what the videos show, or how many are available of the incident. However, because Border Patrol does not install cameras in patrol vehicles and agents do not wear body cameras, the only video evidence available likely comes from cameras mounted on tall poles along the U.S.-Mexico border and operated by Customs and Border Protection.

Before trial Bowen's 'racially offensive' texts come to light

The judge overseeing the case, U.S. District Judge Cindy K. Jorgenson ruled on July 19 that a jury could see dozens of text messages sent or received by Bowen before and after the incident, including messages when the agent called people apprehended by agents "disgusting subhuman shit," and repeatedly used "tonk," a word widely known as a racial epithet for border-crossers.

In her 11-page opinion, U.S. District Judge Cindy K. Jorgenson ruled that many of the text messages sent by Bowen and unveiled by a March search warrant, should be shown to the jury — including messages that contain "racially offensive language."

Bowen, she wrote, "exchanged numerous messages that include racially offensive language," and she rejected Chapman's argument that the language would prejudice a jury. "Defendant’s argument is unavailing," Jorgenson wrote.

"It is undisputed that the admission at trial of Defendant’s racial slurs is prejudicial to the Defendant. But any evidence that tends to prove the government’s case is by its very nature prejudicial," she wrote.

"The Court has reviewed the messages and finds that the probative value of the messages outweighs any unfair prejudicial effect," she wrote.

Chapman had argued that Bowen's language is "commonplace" within the Border Patrol, and that presenting the text messages in court would "prejudice" a jury.

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. 

During a hearing on July 2, Chapman reiterated this idea, saying that in some cases, the text messages represented "sarcasm and dark" humor. However, federal prosecutors argued that some of Bowen's comments were a "direct admission." 

"He may have meant it sarcastically, but it demonstrates his intention and willful conduct," said Ryan. 

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Aug 13, 2019, 5:12 pm
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Democrat 2020 Platform & Goals:

-Open Borders.
-Sanctuary Cities.
-Decriminalize illegal entry into our country.
-De-fund & terminate Border Patrol & ICE
-Disarming Americans.
-End all deportations of illegal aliens (if you get here, you stay.)
-Infanticide.
-Voting rights for illegal aliens.
-Pack the courts with radical liberal judges (Like the 9th circuit)
-Increase refugee’s from the third world.
-Illegal aliens allowed to hold public office.
-Socialism.
-Free Abortions for all (Taxpayer funded)
-The green new deal.
-End of Electoral College
-Free Medicare care for all including non citizens (taxpayer funded)
-Raise Minimum Wage (expect massive reduction in full time jobs & loss of health benefits)
-Adolescents vote.
-!00% free college for all, including non citizens. (tax payer funded)
-Reparations for every rac “harmed” by the white man.
-Convicts, Terrorists voting.
-Susie & Bobby using the same restrooms.
-Late term abortions up to 9 months.
-Tax increases.
-Pay check for every person in the US even if they choose not to work.

*Sources: Straight from the Democrat’s themselves. View their speeches / debates on you tube. Pay particular attention to when the moderator asks the candidates to “raise your hand” if in favor questions.

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Paul Ingram/TucsonSentinel.com

A Border Patrol vehicle rolling along a patrol road.