Feds won't pursue 3rd trial of BP agent in cross-border shooting
Lone juror wanted to find Swartz guilty, but changed vote after judge pushed for verdict
Federal prosecutors said they cannot file new charges against Lonnie Swartz, ending the case against the Border Patrol agent who once faced a second-degree murder trial, and then a second trial on voluntary and involuntary manslaughter charges, for shooting and killing a 16-year-old boy in a cross-border shooting more than six years ago.
On Wednesday, Nov. 21, a jury found Swartz not guilty of involuntary manslaughter, but left the form blank on the charge of voluntary manslaughter, leaving open the possibility that the government could pursue a third trial against the agent. A hearing on the matter was set for Dec. 13.
However, in a court filing Thursday afternoon, Assistant U.S. Attorneys Mary Sue Feldmeier and Wallace Kleindienst wrote that a retrial on the voluntary is barred under the double jeopardy clause of the U.S. Constitution "based on the jury’s verdict of acquittal on the lesser included offense of involuntary manslaughter."
The hearing for Dec. 13 should be canceled, they wrote.
According to Swartz's defense attorney, a lone juror wanted to find Swartz guilty, but changed her vote after the judge pushed for verdict after days of deliberation.
3 years, 2 trials
This closes the book on a three-year prosecution of Swartz, which began in Sept. 2015, when the agent was indicted for second-degree murder by a grand jury, who found cause to charge that he had "with malice aforethought" unlawfully shot and killed 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, and said that rocks were thrown up and over the fence from the street below on the Mexican side.
Swartz fired 16 rounds in 34 seconds in three separate salvos, hitting the boy 10 times in the back and head. Prosecutors argued that Swartz use of force was "unreasonable and unnecessary" and that the agent fired on Elena Rodriguez as he was prone on the ground.
Swartz's defense attorneys said that the agent reacted in "dangerous, scary, deadly-force situation," and that in the darkness and confusion of the scene, he thought he was shooting at a second rock thrower when he fired his .40-caliber H&K P2000 pistol, emptying one magazine, and then three rounds from another.
Video presented during the trials shows that after Swartz stopped firing, he reached down and picked up his magazine, and placed in a cargo pocket before he walked over to a light pole, and according to fellow agents, threw up and began crying.
Sean Chapman, Swartz's defense attorney, said that this was "the right move" by the prosecution. "Just based on the case law alone, this was the right move."
"Swartz is relieved and looking forward to moving on with his life," Chapman said. "I've been working on this case for five years, and I'm just relieved it's over."
He also said that he spoke with a juror, who told him that the prosecution's decision follows the jury's desire to acquit the agent of both charges. Chapman said that before U.S. District Judge Raner Collins issued an Allen charge — instructing jurors to continue deliberating until they reached a decision — on the morning of Nov. 21, there was only a single lone juror who wanted to find Swartz guilty, while 11 wanted to acquit him. After the judge's instruction, the juror switched her position, Chapman said.
Luis Parra, an attorney who has represented Elena Rodriguez's family in a civil suit against Swartz and the government, along with help from the American Civil Liberties Union, said that the family was "deeply disappointed."
"They're thankful, grateful for the efforts of Mary Sue Feldmeier and Wallace Kleindienst, but they're deeply disappointed that the case cannot move forward. And, while they're respectful of the jury's decision, they wholeheartedly intend to pursue the civil case against Mr. Swartz, and they hope that they can have their day in court."
Parra said that the family hoped that the government would "step aside" and allow the family to pursue the civil case and would halt working with the defense to keep the case from returning to Tucson after the Ninth Circuit Court of Appeals ruled earlier this year that the family had the standing to sue Swartz in federal court.
In April, Swartz was acquitted of the second-degree murder charge by a jury after four days of deliberation. However, because the jury remained deadlocked on the two lower charges of voluntary and involuntary manslaughter, Swartz faced a second trial that began in October.
On Nov. 21, the second jury announced that it had acquitted Swartz of involuntary manslaughter, but in a moment of confusion did not check the box on the charge of voluntary manslaughter, opening up the potential that the agent could be tried a third time.
While this brings to a close the criminal prosecution of Swartz, a civil lawsuit launched by the family is now in the hands of the U.S. Supreme Court. The court is expected to hear arguments soon after requesting a friend of the court brief from the Justice Department in September.
If the high court agrees that the family can sue the agent, the civil case will return to Tucson.
Chapman said that evidence from the two criminal trials could likely help Swartz in a civil proceeding, but he was still working on a writ of certiorari to encourage the U.S. Supreme Court to review the case, and potentially reject the Ninth Circuit Court's decision.
A spokesman for the BP's Tucson Sector said in an email that Swartz is currently assigned to the San Diego Sector, and that "following the conclusion of the court proceedings, CBP management will review information regarding this incident to make a determination on employment status following existing agency policies and procedures as well as federal law."
"Regarding the trial, we would like to mention U.S. Customs and Border Protection respects the judicial process and is committed to maintaining the public trust through preserving the integrity, accountability and transparency of our workforce and agency," he said. "Every employee is held to these standards and is responsible for their actions regardless of rank, position or length of service."
"I don't see why he shouldn't come back to work, he should come back and supervisors took the stand and said that everything Lonnie did was within policy," said Art Del Cueto, president of Local 2544, the BP union that covers the Tucson Sector.
Case a 'stacked deck'
Richard Boren, a member of the Border Patrol Victim's Network, criticized the federal government's choice Thursday, arguing that "it is clear that the U.S. Department of Justice has failed again to properly conduct the trial."
Boren was removed from the courtroom by U.S. marshals after the jury announced its verdict last month, saying that the result was a "travesty of justice." Later that day, Boren was taken into custody by two members of the Federal Protective Services when he refused to leave the public area outside the courthouse in downtown Tucson.
Boren was the only one who protested the result in court but, within hours of the announcement, hundreds of people expressed their fury with the decision by blocking the intersection of Congress Street and Granada Avenue. The demonstration included gluing paper panels that read "Jose Antonio Presente" on the street.
"The whole process was a stacked deck in favor of the defense," Boren said. "There has never been a fair trial."
Boren argued that prosecutors should never have agreed that Elena Rodriguez was throwing rocks. "You don't hand them such a damaging point; they opened up the flood gates that he was a rock thrower, and he was a bad guy."
"The existing portrayal of Jose Antonio and his actions that night are wrong," said Del Cueto. "One of the main things, that the family and the people who are protesting, is that they say he was just a kid walking down the street, but the government conceded that he was throwing rocks. The government's own experts said he was throwing rocks. He was electing to throw rocks, and he was attacking the agents, and they responded," he said.
Boren said that he was impressed with the closing arguments by prosecutor Feldmeier in the second trial, but that "was too little too late."
"They should have shown that backbone and passion from the beginning," Boren said, adding that during the opening of the second trial, his heart sank. "I blame a lot, the outcome on the prosecution. They could have done a much better job and I didn’t know why they didn’t.
Complaints about case
Boren also argued that federal prosecutors should have called the former head of Internal Affairs at U.S. Customs and Border Protection, James Tomsheck to testify. In an interview with the New York Times in 2016, Tomsheck said that the footage he saw "demonstrated that José Antonio was certainly not throwing rocks at the time he was shot." And, Tomsheck said the shooting was "the most egregious" of any excessive-force cases he'd seen" at the agency.
However, Tomsheck was not called in part because of restrictions put in place by Judge Collins, who repeatedly rejected prosecutors' attempts to bring opinions on the use-of-force by Swartz that night, and during the last days of the trial rejected a witness that prosecutors wanted, who would have testified about the rate-of-fire from Swartz's pistol.
Boren also argued that because the boy's "positive attributes" were not shared in court, including the fact that he was a high-school student who dreamed of becoming a solider, the defense was allowed to "assassinate the character" of Elena Rodriguez "throughout both trials."
Before the trial began, the defense successfully kept out Swartz's own private history, which may have led jurors to question the agent's credibility.
During a series of motions, federal prosecutors moved to show that Swartz concealed the fact that he joined the U.S. Army in 1995, but went absent without leave, or AWOL and was later arrested by the Las Vegas Police Department.
Swartz concealed this issue when he applied to the Border Patrol academy and "falsely stated that he only served in the Army from November 1995, to December 1995," prosecutors wrote. He also "falsely stated that he had "never been arrested by any police officer, sheriff, marshal, or any other type of law enforcement officer." During a 2014 review of his security clearance, two years after the shooting, Swartz again concealed this episode of personal history.
"In a personal interview conducted as part of the reinvestigation," Swartz "made the same false statements to the interviewer about the dates of his military service and falsely stated that while he was in Army basic training, he realized that joining the Army was a mistake and resigned."
During a Feb. 1 hearing, Chapman argued that these statements were a "matter of interpretation" and noted that a Defense Department service record, called a DD214, had him listed as joining the military in 1995 and separating in 1998, and that the document showed that he left under less than honorable conditions. His arrest, Chapman argued, was actually an FBI agent coming to Swartz's home and asking him to come with him.
"The FBI never handcuffed him, never restrained him in any way," Chapman said. "Then Mr. Swartz showed up at this other base within seven days and he received this other than honorable conditions discharge. So he wasn't hiding anything in his background check."
Prosecutors lose fight to preclude FBI source
The group also criticized prosecutors for "other grave mistakes," saying that Collins allowed statements made by an FBI confidential informant, known only as "El Señor" to be entered in the record, and the statement of Amelia Ochoa, an elderly woman who lives along International Street in Nogales, Arizona.
Before the trial, prosecutors fought to keep El Señor's statements from being read to the jury, and during the first trial forced Ochoa to testify in open court.
During the first trial, Ochoa immediately recanted statements she made to the FBI and DHS-OIG special agent Sarah Arrasmith, at one point denying that she knew Elena Rodriguez, and attacked Chapman, at one point accusing him of lying.
For the second trial, the defense chose to keep Ochoa off the stand, and instead read her statements during the first trial into the record.
This was one of several stipulated statements that were read to the jury during the second trial, including the testimony of a Mexican pathologists, who was not called to testify by the prosecution.
Because the doctor was not called to testify, he was unavailable to the defense because he is a Mexican citizen, argued Chapman during a motions hearing. Chapman instead moved to have his previous testimony read into the record, and Collins agreed.
Boren said that his group asked prosecutors to correct these mistakes "before and during the recent trial to no avail," he said. And, he complained that it was "another mockery of justice for the DOJ to cave in before the Dec. 13 status hearing."
"DOJ attorneys should show up at the Dec. 13 hearing to argue for a third trial and let the judge decide the merits of holding a retrial. The public deserves to see this process in a transparent and open hearing," Boren said.
Swartz case mirrors previous trials
In many ways, the refusal of two juries to find Swartz guilty mirrors a 2008 case, in which another Border Patrol agent was pursued, but ultimately acquitted for using deadly force in Arizona.
In 2008, Nicholas W. Corbett was tried twice in 2008 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, after two trials, a Cochise County prosecutor declined to pursue a third time.
A 1992 case, when agent Michael Elmer shot and killed Dario Miranda, and then under suspicious circumstances, moved Miranda's body, also ended in acquittal.
Boren said that the treatment of the family had been "brutal" throughout the two trials, and that the defense had "demonized" the family by linking Elena Rodriguez to drug smugglers.
Following the jury's decision on November 21, Araceli Rodriguez, the boy's mother, said that his sister had been threatened by other smugglers, and that the family felt increasingly unsafe because the defense repeatedly argued that Elena Rodriguez was part of a drug smuggling outfit that crossed the U.S.-Mexico border just minutes before the shooting, and that he threw rocks to provide cover for two men who were stuck on the fence when Swartz opened fire.
"The family has been just outstanding, so courageous in what they’ve done for six years, I just hope people will realize the contribution that they have made. I’ve said a lot, I think they’ve helped saved lives," Boren said.
Boren said that because the family pursued Swartz through their own civil litigation, they "prevented shootings from taking place" on the border in Nogales.
"They deserve a lot of appreciation and gratitude, and it’s sad to see how they’ve been treated," he said.