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Fresh video evidence may delay trial of BP agent accused of running down Guatemalan man

Defense asks for time to have experts review 'critical' new video

The trial of a Nogales-area Border Patrol agent accused of assaulting a Guatemalan man and then lying to supervisors about the incident may be delayed after his attorney complained in court documents Friday that federal prosecutors disclosed new video evidence just 11 days before trial.

BP Agent Matthew Bowen is 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's trial was scheduled to begin August 13, with jury selection beginning the day before. 

But Bowen's lawyer, Sean Chapman, argued that prosecutors "disclosed additional video-graphic evidence of the event in this case" on Thursday, just 11 days before the trial was scheduled to begin.

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

"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.

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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.

Bowen indicted for 'intentionally striking' Lopez-Aguilar with truck

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. 

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. 

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. 

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"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 that 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 government has been consulted and did not object to the delay, Chapman wrote. 

A status conference is scheduled for August 6 at 2 p.m. 

Jury will see Bowen's 'racially offensive' texts

Earlier this month, 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.

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

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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