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Prosecutors: BP agent 'calmly & deliberately' shot at Mexican teenager

Federal prosecutors argued Wednesday that Lonnie Ray Swartz, the Border Patrol agent on trial for murder in the death of a Mexican teenager during a 2012 cross-border shooting, "calmly and deliberately" walked up the fence and shot his pistol, firing 16 rounds in 34 seconds.

The long-delayed trial on a charge of second-degree murder opened after a jury was picked Tuesday. Prosecutors outlined their case against Swartz, and questioned several law enforcement witnesses about the incident that led to Jose Antonio Elena Rodriguez being shot to death through the border fence in Nogales.

Rodriguez, 16, was hit eight times in the back and twice in the head by the fusillade of shots by Swartz on Oct. 10, 2012, said Mary Sue Feldmeier, an assistant U.S. Attorney. "What did Jose do to deserve being shot to death?," she asked the jury, standing between two six-foot panels that showed the scene from the street in Nogales, Son., and from the spot up a steep slope from where Swartz fired his weapon on the U.S. side of the border.

Feldmeier spoke for just 12 minutes in her opening statement, outlining her case to a jury of 11 women and five men, including 12 jurors and four alternates. 

The federal government acknowledged that Rodriguez was throwing rocks in support of drug smugglers, who had abandoned two backpacks containing 22 lbs. of marijuana, worth nearly $18,000, and were attempting to clamber back into Mexico when U.S. authorities arrived. But the fact that his companions threw three rocks, hitting the fence, this was not a "death penalty offense," said Feldmeier. 

Swartz acted as "judge, jury and executioner" when he shot at the boy, taking up position at least three different times over 34 seconds, and moving 45 feet, or the "width of this courtroom," Feldmeier said. 

Swartz, she said, was standing at the base of the border fence, behind a three-foot-high concrete berm, at a spot where the fence sits on a cliff that rises up 14 feet from Calle Internacional, the street in Sonora where Rodriguez died. The rocks that the defense has contended threatened Swartz had to fly an additional 22 feet to come down on the agent and officer's heads, she said.

Evidence will show that Swartz "calmly and slowly walked up and put his gun through the fence," she said. Feldmeier then counted aloud to emphasize the time between Swartz's first shots, the time he reloaded — eight seconds — and his final three more rounds. 

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Feldmeier noted that it wasn't in dispute that Swartz fired 16 times, nor that he fired deliberately. Instead, the case "boils down to whether the killing was unlawful," she said. 

Swartz is not above the law, and "cannot use his badge as a shield against a murder charge," Feldmeier said. Swartz could only justifying force if he reasonably believed it was necessary to stop the death or bodily harm of fellow agents, officers or bystanders. 

Federal prosecutors will have to prove that Rodriguez was unlawfully killed, that Swartz acted with malice aforethought, acting deliberately or recklessly in extreme disregard for human life, and that the killing occurred in the Roosevelt Reservation, a strip of land that runs along both sides of the U.S.-Mexico border, said U.S. District Court Judge Raner C. Collins. 

Sean Chapman, one of the lawyers representing Swartz, attacked the prosecution's case, saying that Feldmeier's description of the events had "no relation at all" to what had happened, "no relation to what Lonnie experienced," and no relation to the "truth of the conflict along the border between smugglers and the U.S. Border Patrol," Chapman said. 

"This case should never have been brought to trial," he argued. 

Chapman described the Nogales neighborhood where the incident occurred as a place where scouts in the U.S. and Mexico work for smugglers, moving drugs by runners, who quickly move marijuana to stash houses and then load vehicles for a quick getaway on Interstate 19. 

"Smugglers are desperate and violent when they are being pursued," Chapman argued, repeatedly mentioning that one of the men stranded on the fence and surrounded by more than a dozen agents and officers had a knife on his belt. 

Chapman called the Border Patrol a "military force that enforces federal law" on the U.S. border and that agents put on bulletproof vests and carry weapons every day and "expose themselves to danger." 

"They have a dangerous job," Chapman said. 

Chapman argued that when Swartz arrived at the scene, he was responding to radio calls, in which a Nogales Police Department officer said he was "being rocked," and then when he arrived, he heard a fellow agent say "I'm hit" and heard the "dull thud" of a rock hitting a police dog. 

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Chapman described a chaotic scene and said that Swartz was "scared to death" when he responded with gunfire. 

Swartz was not required to see the rocks coming down, or wait until he was hit by one before responding with deadly force, but rather that he was trained that rocks were "deadly weapons" and could seriously injure or kill an agent. 

"Yes, a gun is more powerful than a rock, but agents are authorized to respond in certain situations" with deadly force, Chapman said. "That's the mindset, that's the way they're trained," Chapman said. 

He also noted that while Swartz had used "less-lethal weapons," in the past, he was not allowed to carry such a weapon when he was at the nearby Dennis DeConcini Port of Entry about 800 yards east, and did not have such a weapon when he responded to the scene. 

"It's easy to think about this from a nice courtroom, but Swartz had a split second to decide," Chapman said. Chapman also said that Swartz yelled for them to stop before he opened fire. 

By throwing rocks, "Rodriguez made the conscious choice to put his life at risk by attacking the agents" with rocks and that Swartz didn't see a "young man" on the street, but a silhouette. After the incident, Swartz walked over to a telephone pole and threw up, and then cried, Chapman said. 

When Swartz approached the fence, "they were throwing rocks" and Swartz's first shots were legal. The other shots didn't matter, Chapman said, because the first shot hit the boy in the thoracic vertebrae and the second hit him below the ear, and the shots killed the boy instantly and he was dead before he hit the ground. The additional shots did not matter, said Chapman, noting that the boy's face and the back of his hands were injured, signs that he did not have control of his extremities when he fell. 

Chapman took pains to describe Rodriguez as a compatriot of smugglers. 

Chapman described two witnesses, one — identified only as "A.O." — lived in the area and said that she knew Rodriguez when he grew up, and the second — identified only as "Senor" — is an FBI informant who has earned $220,000 over the last seven years gathering intel on drug cartels. 

The defense attorney also named the two people who were throwing rocks with Rodriguez, identified as "El Pato" and "Chapin," who could link Rodriguez to smuggling organizations in Nogales, Son. 

After several minutes of Chapman's opening statement, Rodriguez's mother Araceli left the courtroom and did not return. 

Chapman also attacked the prosecution's case, noting that it took them three years to decide to prosecute and the case was "fraught with missteps, mistakes, and incompetence."

After a break for lunch, the court returned and heard the testimony of an expert on the legal distinctions regarding the border from an expert from the International Boundary and Water Commission. This was followed by testimony from Gary Weaver, a field technology officer with the Nogales station, who defended the Border Patrol's practices with how the agency dealt with the disposal of digital video recorders that captured video from two cameras placed on poles along the border. A central question from the defense has been how the agency maintained the chain of custody for two videos and whether the agency violated its own policies when it gave copies to the FBI, copies that the defense argued had been compressed.

Later, the prosecution brought forward Quinardo Garcia, one of two Nogales police officers who were at the scene when Swartz fired his weapon and killed Rodriguez. Garcia said that he was answering a call when he passed by two subjects wearing camouflage pants and dark shirts, who immediately ducked in a driveway. Garcia got out of his car, but waited for backup before pursuing the men. As he did so, a Border Patrol agent arrived, and the two men worked back into the dark away from the wall, using flashlight to search for the men.

Later, Garcia said he heard a loud bang, and then gunshots, and took cover by a dog house. Garcia said he heard rocks falling through the trees, and then multiple gunshots.

"Bang. Bang. Bang," Garcia said. He said that he heard someone say on the radio that they were being rocked, and then shots were fired.

Highlighting the confusion of that night, Garcia said that after the two men heard the gunshots, the agent said the shots "aren't going through, they're hitting the fence." Garcia said he heard a pinging sound after each shot, a sound that he later attributed to Swartz's gunshots and the sound of the muzzle blast of the agent's pistol ringing against the steel bollard fence.

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Later, Feldmeier asked Garcia if he'd ever had rocks thrown at him. "Two or three times," Garcia said, adding that it happened more often on the east side of the DeConcini Port, where higher ground means that people can throw rocks down on police and agents. He said that he those cases, he'd back off and asked dispatch to alert authorities in Mexico.

"In those times did you shoot the rockers?," Feldmeier asked.

"No," Garcia responded.

Shandan Wynecoop, a former Border Patrol agent who was on duty in Nogales that night, testified that he, Swartz and another agent were assigned to the outgoing traffic at the port when the incident began and they rushed on foot to the scene.

Wynecoop said that he was focused on the two men who were stranded on the fence, with one was struggling to climb back up and another straddling the metal bollard fence. At one point, Wynecoop said that Johnny Zuniga, a Nogales police officer, brought out his canine, while another Border Patrol agent who arrived from the west, pulled out his taser and aimed at one of the men with the laser sight.

As the officers and agents ordered the men off the fence, a few rocks tumbled in, with one hitting the toe of his boot. Realizing that people were throwing rocks, Wynecoop said he backed up and tried to get some distance from the fence.

"Was the rock painful?" asked William Kleindienst, the other assistant U.S. Attorney trying the case.

"No," said Wynecoop. "I was scared. I was really junior, and it was really the first time I had been involved in something like this. It was really scary for me," he said.

Wynecoop said that he thought the dog was hit, but did not see a rock hit the dog, and Zuniga scrambled to get the dog put away, he said.

Wynecoop didn't see what Swartz was doing, but said that he heard the agent yell in English for people to stop throwing rocks before he fired.

The trial will continue for at least three weeks, beginning with the prosecution later Wednesday afternoon. 

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Paul Ingram/TucsonSentinel.com

The altar of Jose Antonio Elena Rodriguez, 16, who was shot and killed by a U.S. Border Patrol agent in 2012.


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