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BP agent's lawyer asks judge to dismiss murder indictment

In the third legal filing this week, the attorney for Lonnie Swartz, the Border Patrol agent accused of unlawfully shooting and killing a Mexican teenager during an October 2012 incident, has added another wrinkle to the proceedings.

Thursday, Swartz's lawyer Sean Chapman asked that the court dismiss the case because the grand jury that issued the indictment—which said that Swartz "with malice aforethought" fired through the border fence and killed 16-year-old Jose Antonio Elena Rodriguez— did so after hearing testimony from a supervisory agent who repeated statements made by Swartz just minutes after the shooting. 

Swartz was indicted for second-degree murder by the grand jury in September 2015. 

The statements were quashed by U.S. District Judge Raner Collins on March 24. 

Collins wrote that Swartz was repeatedly led to believe that the answers he gave during an interview with Border Patrol officials would not be used to incriminate him in a criminal proceeding and his statements were "compelled, coerced and involuntary." 

Swartz believed his answers were mandatory and that he would be disciplined, and even removed from the agency, if he did not answer the supervisor's questions, Collins said. This violated Swartz's 5th Amendment guarantee that "a defendant’s compelled statements will not be used against him in a subsequent criminal proceeding," he wrote. 

As part of the agency's Use of Force policy, Border Patrol Supervisor Leo Cruz-Mendez interviewed Swartz just a few minutes after the shooting, and asked him "8 questions" about his actions. These answers were then submitted in an oral report to supervisors. 

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." 

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"Everyone's doing OK. I'm going to ask you a couple questions," Cruz-Mendez said, telling Swartz 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. 

"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. 

Cruz-Mendez said that he told Swartz 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. 

Chapman argued that because the grand jury heard Swartz's compelled statements during Cruz-Mendez's testimony, his constitutional rights were violated. 

"The use of Swartz’s compelled statements to obtain his indictment is prohibited by law and requires the dismissal of the indictment," Chapman said. 

"Here, the 5th Amendment was violated because the Government actually used Agent Swartz’s compelled statements to obtain an indictment against him," Chapman wrote. 

This is one of nearly two dozen challenges submitted by Chapman since the original indictment was submitted by a grand jury in September 2015. 

The trial has been delayed six times, most recently in May when Collins changed the trial date from June 19 to October 12, just two days after the fifth anniversary of the slaying. 

Chapman has claimed that the government did not have the jurisdiction to try Swartz, has attacked video evidence of the shooting by arguing that U.S. Customs and Border Protection "lost" original video of the incident after handing over compressed imagery to the FBI, and argued that a witness should be able to submit testimony in a videotaped deposition rather than appear to testify in open court.

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Federal prosecutors have pushed back against some of these challenges, successfully arguing that Chapman's unique reading of the "Roosevelt Reservation" did not keep federal prosecutors from charging Swartz with second-degree murder, and pushing against the potential testimony of a witness, arguing that the person's statements that Rodriquez was in the United States just minutes before the shooting was "irrelevant." 

However, federal prosecutors have not yet responded to this new challenge, nor an argument submitted by Chapman on Wednesday that the court should block the testimony of a Use of Force expert, arguing that the court should "preclude the Government’s 'use of force' expert from giving his opinion on the ultimate legal issues in this case." 

The government should also be kept from "eliciting 'use of force testimony from law enforcement agents who are not qualified as experts," Chapman said. 

The expert, Alan Foraker said that Swartz's discharge of his firearm was "contrary to the Border Patrol’s training and policies regarding use of deadly force." 

Foraker gave eight reasons for his opinion, Chapman said, arguing that while "agents are taught to eliminate the treat when using deadly force," Swartz's use of deadly force was "neither reasonable nor necessary" and the agent was "not legally justified in using deadly force."

A hearing will be held on June 19 on the outstanding issues. 

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Paul Ingram/TucsonSentinel.com

The spot where 16-year-old Jose Antonio Elena Rodriguez died in Nogales, Sonora seen through the U.S.-Mexico border.

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