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

A federal judge ruled Thursday that a jury will see most of the text messages sent by a Border Patrol agent accused of running down a Guatemalan man with his patrol pickup and then lying about it. 

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. and then later not being truthful about the incident in a memo he submitted to supervisors.

As Bowen's case heads to trial on Aug. 13, his defense lawyer Sean Chapman and federal prosecutors have battled over whether a jury will see several dozen text messages sent or received by Bowen before and after the incident.

In the messages, Bowen called people apprehended by agents "disgusting subhuman shit," and repeatedly used "tonk," a word widely known as a racial epithet for border-crossers, court documents showed. Chapman argued in court filings that Bowen's language is "commonplace" within the Border Patrol, and that presenting the text messages in court would "prejudice" a jury. Prosecutors said the texts show the agent's "state of mind and intent."

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. 

In the messages, Bowen called people apprehended by agents "disgusting subhuman shit," and repeatedly used "tonk," a word widely known as a racial epithet for border-crossers, court documents showed. Bowen's attorney, Chapman, argued in court filings 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. 

However, 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 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."

Jurors will consider Bowen's fate just weeks after harsh revelations about the agency's culture have come out, and the agency finds itself defending statements made by agents in a hidden Facebook group, as well as a "challenge coin" that appears to make light of the agency's role in caring for thousands of migrants who have sought asylum in the United States. 

Along with the assault charge, Bowen is also accused of  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.

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." 

As Chapman spoke, Bowen— tall with close-cropped graying hair – listened, but did not say anything during the hearing. 

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

Among the messages is a text from Bowen to Lonnie Ray Swartz, the agent 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 the message, Bowen describes 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. As federal prosecutors argued in an earlier filing, "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,"

Jorgenson said that Bowen's use of the word "guat" even after the incident, fits with the government's theory that Bowen was "more likely to have intentionally struck" Lopez-Aguilar "because of his race." 

Jorgenson wrote that since this language is probative of Bowen's intent and was "not outweighed by any unfair prejudice," his texts to Swartz "will not be excluded or redacted." However, other parts of their conversation will be held back, as well as texts from an agent identified only as Agent Sylliasen in court records. 

Jorgenson also suppressed some messages between Bowen and Border Patrol Agent Brent Bruchaski. As Jorgenson wrote, Bruchaski "pontificated" about the "relative difference between pushing a suspect and striking them with a vehicle," and that Bowen "contributes noting to this conversation." 

However, Jorgenson agreed with Bowen's defense attorney that messages between Bowen and an attorney should be precluded, as well as messages sent to Bowen from three other Border Patrol agents.

Jorgenson said that messages Bowen sent to Jim Calle, an attorney regularly who works with the agency's union, had "probative value" but should not be shown to the jury. 

"Here, the inclusion of messages discussing Mr. Calle are unfairly prejudicial to the Defendant. There is nothing inherently wrong about Defendant consulting legal counsel, especially when legal counsel is provided at no cost as a benefit of union membership," Jorgenson wrote. 

Ryan argued that some of the texts showed that Bowen was "keeping tabs" on the investigation against him, and trying to see who federal investigators were interviewing as a part of a probe. 

Chapman has also moved to have Lopez-Aguilar's immigration history presented to a jury. After he was detained by agents, Lopez-Aguilar said that he was from Mexico, and gave a false name and address in Mexico. Chapman argued that "these facts are highly probative of Mr. Lopez-Aguilar’s credibility."  

"They demonstrate that he was willing to lie repeatedly to place himself in a better position within the U.S. legal system," Chapman said. "They also demonstrate that he understood how the system works, and how to manipulate it for his own benefit. All of this bears on his credibility as a witness." 

"The jury should be allowed to evaluate Lopez-Aguilar’s testimony in the context of what actually occurred-not after it has been carefully sanitized at the government’s behest," Chapman wrote. 

However, federal prosecutors argued that because Bowen was "ignorant of the victim’s identity when he hit him with his truck, the victim’s prior removal from the United States could not have impacted his decision to commit the assault." 

"The victim’s immigration history is not relevant to the elements that must be proved in the charged Counts, nor is it relevant to any defense against the Counts," wrote Ryan. 

After Lopez-Aguilar was apprehended by Bowen, he was sent to Operation Streamline, a fast-track immigration court in Tucson, and received a 30-day sentence for improper entry by U.S. Magistrate Judge Eric J. Markovich. Chapman argued that  Lopez-Aguilar had received some special benefit, but Ryan rejected this claim writing that immigrants "with a similar background, one prior removal, are regularly prosecuted through Operation Streamline and offered misdemeanor pleas in an expedited process." 

Ryan said that several witnesses will testify that it was "unnecessary and unreasonable to use deadly force during this arrest."

"Based on what agents knew at the time, a suspected undocumented alien was fleeing after committing a misdemeanor illegal entry," she wrote. And, she wrote that Lopez-Aguilar's immigration history could "improperly inflame and confuse the jury." 

"Focusing on the victim’s immigration history serves only to distract the jury from the defendant’s criminal conduct, and invites the jury to improperly consider their personal opinions on illegal immigration when determining whether the defendant intentionally hit the victim using deadly force," she wrote.  "Given the current atmosphere of political discourse around immigration and border security, such evidence is only likely to improperly inflame and confuse the jury," Ryan wrote.