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Judge rules feds can try BP agent in Nogales cross-border shooting

Statements made following the shooting are suppressed

The trial of Lonnie Swartz, the Border Patrol agent accused of shooting and killing a Mexican teenager in 2012, will move forward after a federal judge dismissed his claim that the federal government lacks the jurisdiction to charge him with second-degree murder. However, statements Swartz made to his supervisor following the shooting will be suppressed, U.S. District Judge Raner Collins ruled. 

Nearly three years after the shooting, Border Patrol Agent Lonnie Ray Swartz was indicted by a grand jury for firing through the border fence into Mexico and killing 16-year-old Jose Antonio Elena Rodriguez. The boy was walking along the sidewalk on Calle International near the international boundary when he was hit by nearly a dozen rounds, with most of the bullets striking him in the back. 

In October, lawyers representing Swartz argued that the interwoven jurisdictions between governments along the U.S.-Mexico border meant that the case should be dismissed because the federal court lacks the jurisdiction to prosecute Swartz.

The argument focused on the original indictment against Swartz, which charged the agent for second-degree murder after he "with malice aforethought" fired through the fence and killed Rodriguez "within the special maritime and territorial jurisdiction of the United States..." 

In a court filing, one of Swartz' lawyers Sean Chapman argued "there is no indication that the alleged crime was committed on federal land. His client, Chapman argued, was "not within the special maritime and territorial jurisdiction of the United States, as required by law." A second lawyer, Jim Calles argued during a hearing in October that while the federal government has the ability to prosecute drug smuggling and illegal immigration at the federal court, the second-degree murder charge against Swartz should be prosecuted by state or county authorities. 

Calles argued that the federal government had "implicitly and explicitly" abandoned the strip of land along the U.S.-Mexico border known as the Roosevelt Reservation, created by President Theodore Roosevelt as part of a 1907 proclamation.

"The nature of what took place makes the jurisdiction important," said Calles, and that federal government carried the burden of proof. 

Judge Collins rejected that argument, writing that he was "not convinced" by the claims and that he was satisfied the federal government had "met the burden of establishing the subject-matter jurisdiction with respect to the charged offense." 

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However, Collins did agree with the defense team that Swartz's responses to a series of questions, asked by a Border Patrol supervisor as part of the agency's Use of Force policy, should not be used at trial because Swartz was repeatedly led to believe that the answers he gave would not be used to incriminate him. 

Border Patrol Supervisor Leo Cruz-Mendez testified to a grand jury that he interviewed Swartz after the shooting telling the agent to relax and "take it easy." 

"Everyone's doing okay. I'm going to ask you a couple questions," Cruz-Mendez said. Cruz-Mendez said that per policy, he had to ask eight questions, but the "questions are not incriminatory. They’re just basic information that I need so I can pass on to my supervisors," he said. 

Cruz-Mendez also said that he told Swartz that everything was OK after the shooting, but the agent began to vomit. "I shot and there's someone dead in Mexico," Swartz said, and produced an empty ammunition magazine from his pocket, according to court records.

"They were throwing rocks ... They hit the dog ... I shot and there's someone dead in Mexico," Swartz said. 

As part of the agency's Use of Force policy in 2012, agents were required to ask "8 questions" and then submit an oral report to supervisors. 

Swartz, Collins ruled, believed that his answers to the questions were mandatory and that he would be disciplined, and even removed from the agency, if he did not answer Cruz-Mendez's questions. 

This violates Swartz's Fifth Amendment guarantee that "a defendant’s compelled statements will not be used against him in a subsequent criminal proceeding," Collins wrote. 

"According to the United States Border Patrol’s own, contemporaneous policy, any information provided by Swartz in response to those questions (where the government did not remove the threat of disciplinary action for failure to comply or, otherwise, employed any other means of coercion) could not be used against him in a criminal proceeding," Collins wrote. 

Collins wrote that Swartz's response to the "8 questions" were "obtained under threat of removal of office and compelled by Mendez's assurances that said statements would not be 'incriminatory.'" 

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"By threatening to punish Swartz’s silence (and not removing that threat) and by otherwise compelling his responses to the 8 questions, the government donned the hat of employer," Collins wrote. "Its own Use of Force Handbook policy, the Constitution, and this Court hold the government to that choice," he said. 

Thus, Collins said that all of the statements made by Swartz were "compelled, coerced and involuntary." 

Collins did not rule on a new challenge to the government's case made on Monday that video of the shooting should be precluded as evidence because during the transfer of the original digital video, the government compressed the images, violating its own guidelines. 

Originally slated to start in November 2015, just a few months after Swartz was indicted, the trial has been delayed five times and may begin June 19. 

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Paul Ingram/TucsonSentinel.com

Family members of Jose Antonio Elena Rodriguez speak following a procession in Nogales marking the third anniversary of the teenage boy's death.

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