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Update: Swartz found not guilty of involuntary manslaughter in Border Patrol shooting case

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Update: Swartz found not guilty of involuntary manslaughter in Border Patrol shooting case

  • Araceli Rodriguez speaks to supporters outside of the federal courthouse Wednesday afternoon
    Paul Ingram/TucsonSentinel.comAraceli Rodriguez speaks to supporters outside of the federal courthouse Wednesday afternoon
  • Lonnie Swartz walks into federal court during his first trial.
    Paul Ingram/TucsonSentinel.comLonnie Swartz walks into federal court during his first trial.

Jurors in the trial of Lonnie Swartz, the Border Patrol agent on trial in a cross-border shooting, found him not guilty of involuntary manslaughter on Wednesday. Jurors did not reach a verdict on a voluntary manslaughter charge.

Two hours after U.S. District Judge Raner C. Collins told the jury to continue deliberating after they announced they were deadlocked, jurors returned and announced that they found Border Patrol Agent Lonnie Swartz not guilty of involuntary manslaughter for shooting and killing a 16-year-old boy more than six years ago.

The jury did not render a verdict on the higher charge of voluntary manslaughter, but his defense attorney Sean Chapman said after the hearing that the government could not charge Swartz for voluntary manslaughter again if a jury found him not guilty of the lower charge. Prosecutors said they would review whether to seek yet another trial.

This likely brings to a close the case against Swartz that began in 2015 when a grand jury said that the agent "with malice aforethought" shoot and kill Jose Antonio Elena Rodriguez on Oct. 10, 2012.

Elena Rodriguez died face down on a sidewalk on on Calle Internacional on the Mexican side of the border, just four blocks from home, down a 14-foot embankment from where Swartz stood on the U.S. side of the 22-foot-high border fence. Swartz and other border agents had responded to a report of drugs being smuggled across the fence. They were met with rocks being thrown up and over from the street below on the Mexican side.

After the jury read their verdict, Swartz's shoulders were wracked with sobs, and tears streamed down the face of Taide Elena, the boy's grandmother, who has attended every single court hearing.

As Collins began to explain the ruling, Richard Boren, an advocate and member of the Border Patrol Victims Network, stood up and yelled, "This is a travesty of justice." As U.S. marshals moved to remove him from the court, he yelled. "Justicia! Justice denied."

Assistant U.S. Attorney Mary Sue Feldmeier said that the government would consider whether to seek a new trial for voluntary manslaughter as the jury did not fill out that part of their verdict, and thus, the government considers their decision "hung."

The court will hold a hearing in two weeks to consider that matter.

Chapman said that Swartz has been dealing with this for years, and that he was relieved and sobbing in the courtroom. He did not know if Swartz would rejoin the Border Patrol as the agent has been on administrative leave since his indictment in 2015, and has moved to Las Vegas to work construction jobs.

Art Del Cueto, president of Local 2455 of the National Border Partol Council, which represents agents in the Tucson Sector, said that the jury's decision was "justice served."

"People may be upset, but they have to ask themselves, are they seeking justice or are they so angry because they were seeking revenge and just didn't get it?" "Lonnie is a victim. So, too is Jose Antonio and his family. They are victims of the drug cartels, who use these kids to help them in their operations. You can't point the finger at the agent, you have to put the blame on the drug cartels."

He said he didn't know if Swartz would return to work with the Border Patrol, but Del Cueto said that the union and the supervisors who testified agreed that Swartz "did the right thing" under the circumstances.

Outside of the court, Boren continued to decry the verdict, and was removed by federal officers for chanting in the court's breezeway. Moments later, after Boren again returned to the wide open public area that marks the court's entrance, two officers with Federal Protective Services arrested him.

A group of activists chanted, "What do we want? Justice. When do we want it? Now!" in Spanish.

Boren and the members of the Border Patrol Victims Network have criticized the prosecution's handling of the case, arguing that they "mistakenly conceded" that Elena Rodriguez threw rocks across the border, "despite the lack of any credible evidence to prove" that the boy was involved. They also complained that the prosecution failed to call James Tomsheck, the former head of Customs and Border Protection's internal affairs, who left the agency as a whistleblower.

Tomsheck told the New York Times that he reviewed the video after the shooting and said it was "the most egregious" use of force case he'd seen.

Demonstrators also criticized two statements that were read to the jury. The first, from a FBI source, known only as "Señor," was read into the record. A paid informant, "Señor" claimed that he spoke to two men, known as "El Pato" and "Chopin," who said that Elena Rodriguez was given rocks to throw, and that once the agent fired, "all hell broke loose."

They were hiding because the agent, they said, "fired at anything that moved" along Calle Internacional.

The second was from Amelia Ochoa, who said that she knew Elena Rodriguez as a child and that she saw him in the United States just before the shooting. However, her testimony was wracked by confusion and at one point she said that two men with "long rifles" walked into her property. Later, Quinardo Garcia, a Nogales police officer, testified that the two men were fellow officers who came to extricate him after Swartz fired his weapon, at least 10 minutes after the shooting.

A protest is planned for 4:30 p.m., just outside of the courthouse on West Congress Street.

As supporters chanted "Jose, Jose" the boy's mother Araceli Rodriguez and grandmother Taide Elena slowly walked out of the court to speak with supporters and reporters after the verdict. They said they would continue to pursue justice for the slain boy, first by pursuing their civil case against Swartz, which is now in the hands of the U.S. Supreme Court, and by asking the Mexican government and incoming president Andrés Manuel López Obrador to help.

Araceli said when the last case ended, the family struggled and left the courthouse through a back door because they "didn't know what to do."

"But this time, we came out here, with our heads held high to let you know how we feel," Araceli said. Swartz, she said, who shot and killed her son, is the "one that should go through the back with his head down. Not us."

"Because he knows, he's a murderer," she said. "What he doesn't know is how much he hurt us. And, hopefully in some way there will be justice. Some way this will be stopped. Some way the murders on the border will be stopped."

"Even though we have not reached justice here, we know that by following this case, and asking for justice, we have stopped, some other murders on the border," Araceli Rodriguez said.


Jurors had told the federal judge in the trial earlier Wednesday morning that they had been unable to reach an unanimous verdict after two full days of reviewing the case.

U.S. District Judge Raner C. Collins gave the jury an "Allen charge" and instructed them to return to their deliberations in the case against Lonnie Ray Swartz, the Border Patrol agent who shot and killed a 16-year-old Mexican boy in Nogales more than six years ago. 

Swartz faced manslaughter charges as part of a retrial after a jury acquitted him in March of second-degree murder in the Oct. 10, 2012, death of Jose Antonio Elena Rodriguez.

After four days of deliberation, that first jury announced that it had acquitted Swartz of the murder charge, however, jurors remained deadlocked on the manslaughter charges, requiring a new trial that began on October 24. 

Swartz faced up to 20 years in prison if he was convicted for voluntary manslaughter, and six years if he was convicted of involuntary manslaughter. 

On Friday, prosecutors and defense attorneys offered up their closing arguments, and the jury began their deliberations late Friday afternoon, but on Tuesday they announced they were deadlocked on both charges and Collins, who has overseen both trials, asked the jury to return Wednesday. 

During a 10-minute hearing on Wednesday morning, one of Swartz's lawyers, Sean Chapman said that the jury had already announced it was deadlocked, and argued that it would be "coercive" for Collins to send the jury back to deliberate, saying that jurors may seek an unanimous verdict simply to end the trial. 

However, assistant U.S. Attorney Mary Sue Feldmeier said that the jury had said that it may be deadlocked on Tuesday afternoon, and that Collins' request to for the jury to return and his Allen charge was "appropriate."  

Collins said that the jury had deliberated only for about 14 and a half hours over the last two days, and they had to review more than 100 hours of testimony, so the Allen charge was appropriate. Collins denied Chapman's motion, and then read the Allen charge instructions to the jury. 

Collins made a similar charge of the jury in March before it returned the next court day and announced that they could not reach a decision. 

Elena Rodriguez's mother, Araceli Rodriguez, and his grandmother Taide Elena, were in the courtroom, but did not react as the jury were led out of the courtroom to continue deliberating. 

Prosecutors argued that Swartz's actions were "unreasonable and unnecessary," and the agent was a "sharpshooter" who methodically and deliberately shot and killed16-year-old Jose Antonio Elena Rodriguez, firing 16 rounds into Mexico, and hitting the boy 10 times in the back on an October night in 2012.

The agent was a "fighter" who had trained himself to react whenever rocks were thrown at the fence, and on October 10, 2012, he heard a rock "ping" against the fence, and decided to protect the "border fence against the indignity" of having rocks thrown. 

Swartz defense team argued that the agent was protecting himself and fellow agents in a "dangerous, scary, deadly-force situation" as rocks came over the fence, and argued that while Elena Rodriguez's death was "tragic" he was part of a smuggling organization and made the choice to throw rocks at the agents. 

Chapman asked the jury during his closing arguments to treat the agent fairly. "You have to put yourself in that position," he said.

Swartz fired 16 shots in 34 seconds from three different positions. Swartz and two other Border Patrol agents were assigned to watch outgoing traffic at the Dennis DeConcini Port of Entry about 700 yards away, when one of the agents said he heard that men were clambering up the fence nearby while carrying drugs. The trio went outside, and according to Swartz's testimony, could just make out "two shadows" on the fence, and decided to run up the hill to help. 

As Agent Shandon Wynecoop ran in front, Swartz took up the rear, and trudged up the hill to where Johnny Zuniga, a Nogales police officer, was just getting his dog Tesco, out of the vehicle to deal with the two men. 

Three other Border Patrol agents had already arrived, and two of the agents, along with a Nogales police officer headed up the hill to look for, and ultimately find, two backpacks loaded with around 22 pounds of marijuana. As the agents and officers waited for the two men to climb the fence into Mexico, someone began to throw rocks over the steel plates. 

According to his testimony, Swartz said that Wynecoop said he'd been hit by a rock, and then he heard someone tell Zuniga that his dog had been hit by a rock. Swartz walked forward with his weapon drawn, and looked through the fence where he said he saw two figures "cock back" almost in "unison" and throw rocks. 

Then he fired. 

He fired three .40-caliber rounds from his H&K P2000 pistol, before he moved around 45 feet, and then emptied his magazine into Mexico, firing 10 more shots. Swartz reloaded his weapon, and moved to another position where he fired three more rounds. 

Of the 16 rounds Swartz fired, 10 hit the boy either in the back or head, while three more appear to have hit the wall just inches above where the boy died, face down on Calle Internacional, just a few blocks from his home. 

One of the shots tore through the boy's back, shattering five of his vertebrae before the shot cut his aorta and ended up beneath his breastbone. Another shot sliced through the boy's right ear, and punched through his skull, burrowing through both hemispheres of his brain before it stopped, lodged just beneath his scalp. 

While prosecutors argued that the boy was still alive and moving on the ground when he was hit in the head, the defense has argued that the boy was killed in the first fusillade. Swartz said during his own testimony that he was shooting at what he perceived as a second rock-thrower when he fired the second and third volleys, but that he didn't remember exactly why he fired because everything had become "gray" and "fuzzy." 

After he stopped firing, he reached down and picked up his magazine, and placed it in a cargo pocket. Then he walked over to a telephone pole and as he spoke to a Border Patrol supervisor, he threw up and began to cry. 

In Mexico, Elena Rodriguez family had to wait until the next morning to discover that the boy had been killed when a photograph from the front page of the newspaper showed the boy dead on the sidewalk with a crown of blood around his head. 

Swartz's prosecution was a rarity. An agent hasn't been charged for using deadly force in Arizona since 2008 when Nicholas W. Corbett was tried twice for second-degree murder stemming from the killing of Francisco Dominguez-Rivera, a 22-year-old Mexican man. Corbett arrested Dominguez-Rivera along with three others, and then shot him at close range. 

However, a jury refused to convict the agent, and the charges were dismissed. 

However, the killing of Elena Rodriguez came on the heels one of several cross-border shootings that took place in just a few years in Arizona and Texas, including the shooting death of Carlos LaMadrid in Douglas, Arizona in March 2011, and the slaying of Sergio Adrián Hernández Güereca near El Paso in 2010. 

After two years of criticism, the agency sought to "remind" agents about the use of force, especially against people throwing rocks in a 2014 memo from Border Patrol Chief Michael Fisher. 

In the memo, Fisher noted that in a four year period, Border Patrol agents had been rocked nearly 1,500 times and that in 43 incidents agents used deadly force, killing 10 people, including Elena Rodriguez. 

Allen charge: Model instructions for deadlocked juries

Federal procedures allow for the "Allen charge" — named for an 1896 Supreme Court case — as an instruction for juries that have been unable to reach a unanimous verdict. Arizona state courts do not allow judges to so instruct juries. Swartz is being tried in U.S. District Court, so this instruction approved by the 9th Circuit Court of Appeals could be applied by the judge in his case:

Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you.

As jurors, you have a duty to discuss the case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.

All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.

I remind you that in your deliberations you are to consider the instructions I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.

You may now retire and continue your deliberations.

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