Swartz trial: FBI informant said Jose Antonio given rocks to throw at agents
In a statement read to the court, an FBI informant who works in Nogales, Sonora, told investigators he spoke with two men just after the shooting of a Mexican teenager, who said the boy was given rocks to throw at Border Patrol agents.
The informant's statement was one of three documents read to the jury on Tuesday and Wednesday as part of the defense for Lonnie Swartz, the Border Patrol agent who faces manslaughter charges — as part of a re-trial after the jury found him not guilty of murder earlier this year — for shooting and killing 16-year-old Jose Antonio Elena Rodriguez more than six years ago.
This included the testimony of the other medical examiner who conducted the autopsy of Elena Rodriguez, as well as testimony from an older woman who lives near the scene.
The Swartz case is a rare prosecution of a Border Patrol agent, and the killing of Elena Rodriguez was one of several cross-border shootings that took place over a few years. After two years of criticism, in 2014, the agency sought to "remind" agents about the use of force, especially against people throwing rocks.
The defense has tried to link Elena Rodriguez with smugglers who slipped into the U.S., and dropped two backpacks full of marijuana before attempting to climb the "bollard" fence that separates the U.S. and Mexico.
While two men were up on the fence, Swartz fired 16 rounds in 34 seconds in three salvos through the border barrier at Elena Rodriguez on a street below, shooting from one position at the fence, and moving approximately 45 feet before he fired again and emptied his magazine. Swartz reloaded, moved again, and fired three more .40-caliber rounds before he stopped. A video shows that Swartz then retrieved the empty magazine, and then walked off camera.
Federal prosecutors and the defense agreed that the statement could be read aloud to the jury by Swartz's defense attorneys.
Defense attorney Sean Chapman read the transcript of his own questions, while a fellow lawyer for Swartz, Jim Calle, read the part of the informant known only as "Señor."
In the statement, Señor said that on Oct. 12, 2012 he ran into two friends, who told him that there had been a shooting near the border. He went to investigate, and found a "chaotic" scene, where "people were screaming," and there was a body on the sidewalk at Calle Internacional and Calle Ingeniero. Above the scene, he said that he could see "patrol cars" just beyond the bollard fence, a 22-foot high steel wall that rests on a waist-high concrete base on a cliff about 14 feet above the street level on the Mexican side.
Señor said that he found two men, identified only by their nicknames as "El Pato" and "Chopin," hiding in a nearby alleyway. The two men told the FBI's informant that "the whole thing had gone to hell," and that they were hiding because "whatever the migra saw he would shoot at." Migra, short for immigration, is a commonly used epithet for Border Patrol agents.
The two men said they had fled and hadn't realized that the boy, who was last in their group, had been shot, Señor said.
The defense also read the testimony of Amelia Ochoa, an elderly woman who lives in a small house just north of International Street, which runs parallel to the border fence in Nogales.
Ochoa, 60, said that she knew Elena Rodriguez and thought the boy was in the United States just before the incident began.
Ochoa told federal investigators that a neighbor's porch light allowed her to see her front yard and the little cul-de-sac beyond from her bedroom window, and that she saw Elena Rodriguez just minutes or hours before he was killed.
However, during the last trial, she refuted her statements to federal investigators, at one point rejecting the she knew Elena Rodriguez at all.
The defense also read into the record statements Dr. Javier Diaz-Trejo made to federal investigators. Diaz-Trejo and Dr. Absalon Madrigal Godinez completed the original autopsy on Elena Rodriguez.
The defense has argued that Diaz-Trejo, and Madrigal originally believed that Elena Rodriguez was killed by one of Swartz's first shots and the bullet hit the boy in the head, burrowed through his skull, and came to rest beneath his scalp.
However, two years after their initial findings, the medical examiners had changed their mind, and decided that the boy was hit first by a shot to the back, which shattered his vertebrae, ripped through his aorta and lungs, and came to rest beneath his breastbone. While catastrophic, the wound didn't kill him outright, and the boy was alive and on the ground when Swartz fired his second and third fusillade, shooting him in the head, the medical examiners have said.
The timing of the shots remains a central issue because while the defense has argued that Swartz lawfully shot the boy while he was throwing rocks and he sought to defend himself and fellow agents and officers. However, the prosecution has argued that Swartz was tired of being rocked and fired on the boy and that the shooting was not "reasonable or necessary."
Along with the two read statements, the defense called two Border Patrol agents to testify on Wednesday, who both said they were involved in the use of "less than lethal" weapons with Swartz.
Border Patrol Agent Aaron Wehlry said that on the night of Nov. 15, 2011, he was near the border fence east of the Dennis DeConcini Port of Entry in Nogales when a group of people started to throw rocks at him. Swartz came to his aid, and the two agents used "hand-thrown munitions," including "stingballs"—a grenade-like weapons that explodes and throws out rubber balls, as well as smoke grenades. He said that he could her rocks "clanging against the fence" and hitting the ground.
Chapman asked the agent if Swartz had acting appropriately. "Was he doing what was necessary at that point?" "Yes," said Wehlry.
Wallace Kleindienst, one of the assistant U.S. Attorneys prosecuting the case, asked if Swartz had been calm. "Was he able to execute what he had to do?" "Yes."
"What happened after?" asked Kleindienst. "People yelled and stopped throwing rocks," the agent responded.
Wehlry was followed by Agent Aaron Hallert, who said that on April 25, 2012, he went to help Swartz apprehend a man climbing the border wall, in nearly the same spot near Tricky Wash. As the agents went to make the arrest, people on the other side began throwing rocks, and Hallert and Swartz threw "less-than-lethal" grenades at them.
The defense called the agents in response to testimony made for the prosecution by Border Patrol Agent Kevin Hecht, the patrol agent in charge of the Nogales Station, who read seven reports written by Swartz following incidents when he used force against rock throwers.
Swartz used "less-than-lethal"on seven different occasions, and each time the agent responded with "less-than-lethal" force, either by throwing a "stingball" or by firing a pepper-ball launcher — a paintball gun that fires balls made from a pepper-spray-like concoction.
From Sept. 12, 2011 to July 9, 2012, Swartz responded to "rockings" using these weapons, including one incident on Dec. 30, 2011, when the agent faced four to five people wearing ski masks in the Morley Tunnel, a drainage passage in Nogales that drug smugglers often try to use.
According to Swartz's own report, one of the men threw a bottle at him and he responded by throwing a stingball grenade at the group, and then fired pepperballs at them.
Earlier in the trial, former Border Patrol agent Shandon Wynecoop said that Swartz, and another agent Steven Porter, were assigned to the DeConcini Port of Entry on outgoing operations, when they saw the men on the wall and left their post. Because they were assigned to the port, they were not allowed to carry "less-than-lethal" weapons that night.
None of the agents were responded to the scene had a "less-than-lethal" weapon that night, including two agents who were assigned to stay near the wall, and another agent who was patrolling between Nogales' two border crossings.
Finally, the second Nogales police officer who responded to the scene, Quinardo Garcia, said he was looking for the drug load with another agent in the brush that's between the U.S.-Mexico border and Interstate 19 when he heard Swartz fire. And just before the shots, Garcia said that he heard rocks failing through the trees. "It was either rocks or something was being thrown through there," he said.
During his testimony, Chapman played a part of the radio traffic between Garcia and another Nogales officer, and Garcia could be heard saying "I've got two, I've got two." "Is that you?" Chapman asked, "you sound a little stressed."
On cross-examination, Mary Sue Feldmeier, the other assistant U.S. Attorney prosecuting the case, asked if he was scared when he saw the men cross International Street. "Being a police officer has its stresses? You're excited, but you weren't scared spitless, were you?" "No, we do get excited," Garcia said.
Garcia also testified that after he heard the shots, he hunkered down and waited until two other Nogales officers, both armed with rifles, came to back him up because he "didn't know" what was going on, and couldn't hear the Border Patrol's radio traffic that Swartz had fired his weapon and killed someone in Mexico.
Feldmeier also asked if he was sure that he heard rocks, and not the sound of agents crashing through the brush to the west of his position, and Garcia admitted that he wasn't sure. However, that's contrary to statements he made to federal investigators, when he said that he heard rocks falling through the trees, Chapman said.
The trial is on hiatus until Tuesday, Nov. 13, at 9:30 a.m. because of the Veterans Day holiday.