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Sean C. Chapman 

Law Offices of Sean C. Chapman, P.C.

100 North Stone Avenue, Suite 701

Tucson, Arizona 85701

Telephone: (520) 622-0747

Fax: (520) 628-7861

Arizona State Bar No. 012088

Attorney for Defendant Swartz

Sean@seanchapmanlaw.com

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff,

v.

Lonnie Ray Swartz,

Defendant.

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 CR15-1723 TUC RCC(DTF)

MOTION TO PRECLUDE

RETRIAL ON GROUNDS OF

JUDICIAL ESTOPPEL; OR, 

ALTERNATIVELY, MOTION TO 

PRECLUDE INCONSISTENT AND 

CONTRADICTORY THEORIES 

OF PROSECUTION

COMES NOW the Defendant, LONNIE SWARTZ, by and through his counsel 

undersigned, and pursuant to the Due Process Clause and authorities cited below, moves 

this Court to preclude the Government from trying Agent Swartz on Manslaughter 

charges; or, alternatively, preclude the Government from asserting any theories at a retrial 

that are inconsistent or contradictory with the positions advanced at the original trial.

/ / /

/ / /

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MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS

Agent Swartz was tried on a one count indictment charging him with Second 

Degree Murder, in violation of 18 U.S.C. § 1111. In order to prove that Agent Swartz 

committed this crime, the Government sought to demonstrate that he killed with malice 

aforethought, defined as “either deliberately and intentionally or recklessly with extreme

disregard for human life.” (Doc. 476 at p. 16.)

The Court also instructed the jury on the lesser-included crimes of Voluntary and 

Involuntary Manslaughter. The Court will recall that the defense objected to giving any 

instructions on lesser-included offenses, however after the Court indicated it would 

instruct the jury on Voluntary Manslaughter, undersigned counsel asked the Court to also 

instruct on Involuntary Manslaughter.

The jury was therefore instructed on the elements of Voluntary Manslaughter, 

which is similar to Second Degree Murder in that the jury must find that Agent Swartz 

killed Jose Elena Rodriguez “intentionally” or “recklessly with extreme disregard for 

human life.” However, Voluntary Manslaughter is distinguished from Second Degree 

Murder when the killing occurs during “a sudden quarrel or heat of passion, caused by 

adequate provocation.” Further:

[h]eat of passion may be provoked by fear, rage, anger, or 

terror. Provocation, in order to be adequate, must be such as 

might arouse a reasonable and ordinary person to kill someone.

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(Doc. 476 at pp. 17-18.) See 18 U.S.C. § 1112; Ninth Cir. Model Jury Instr. 8.109. 

Similarly, Involuntary Manslaughter has among its elements, the requirement that a death 

occur with “gross negligence,” defined as “wanton or reckless disregard for human life.” 

(Doc. 476 at pp. 19-20.) 

In the first trial, the Government revealed its theory of the prosecution in the 

Opening Statement: that Agent Swartz “executed” Jose Rodriguez. Ms. Feldmeier told 

the jury:

Ladies and gentlemen, supporting drug traffickers, throwing rocks, that’s 

not a death penalty offense. But on that day, Lonnie Swartz became the 

judge, the jury and the executioner.

(Ex. A, p. 4.) 

In the next 16 days of trial, the Government sought to elicit testimony from witness 

after witness, whether called by the prosecution or defense, that Agent Swartz was indeed 

an executioner. Mr. Kleindienst carried the Government’s theme through to the closing 

argument, telling the jury in his closing argument:

There was not the intent to kill in this case by those people throwing 

rocks. And we don’t condone what they did. What they did was wrong. 

But it was not a capital offense. No matter what they did, and no matter 

how many rocks came over, it was not a capital offense. Jose Antonio did 

not deserve to be executed.

...

Whatever Jose Elena did that night, throwing rocks or being there with 

rockers, it wasn’t a capital offense. 

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(Ex. B, pp. 12, 34.) Mr. Kleindienst supported the Government’s theory with the 

following references to show that Agent Swartz acted with malice aforethought, and thus 

was guilty of murder, because:

- Agent Swartz did not make a split-second decision but, rather, he had time to 

reflect and he decided to shoot “to send a message to whoever was out there, 

no more rockings.” (Ex. B, p. 21.) 

- [h]e intended to kill Jose. He intended to eliminate him as a person. (Id., p. 

34.)

- [f]or whatever reason, he wanted to take care of these rockers. (Id., p. 90.)

- “He’s not god. He can’t decide who lives and who dies.” P. 90

- [i]t wasn’t a split-second decision. He calmly walked calmly across the 

street. And he calmly went to the fence. And he fired three rounds. It was 

not necessary. It was not the last resort. He had other options available to 

him. (Id., p. 91.)

- [a]nd for whatever reason that night he wanted to eliminate him as a human 

being. (Id., p. 93.)

The prosecutor also explained the legal concepts to the jury in his rebuttal closing:

- Malice aforethought only means that he either intended to kill him or he 

acted with extreme reckless disregard for the life of Jose Elena. That’s what 

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second degree murder is. The intent to kill or acting in extreme disregard for 

the life of Jose Elena. (Id., p. 98.)

- When you walk across the street and you have the time to reflect on your 

conduct, and you go to the bollard, and you see someone who may have 

thrown a rock, that you don’t even know is going to hurt anybody, and you 

shoot, that’s an intentional killing, that’s second degree murder. (Id., p. 98.)

- And if that’s not that, it’s extreme reckless disregard for the life of that 

human being. (Id., pp. 98-99.)

Moreover, in his rebuttal closing, government’s counsel explicitly and unequivocally 

argued against Voluntary Manslaughter, telling the jury that Agent Swartz did not 

discharge his firearm during a sudden quarrel or heat of passion caused by provocation. 

He told the jury that in such a case, the actor still has intent to kill, but “because of heat of 

passion caused by adequate provocation you kill that person.” (Id. p. 99.) He said that on 

the contrary, Agent Swartz acted deliberately, coolly, and calmly. (Id.) The prosecutor

went on to give an example of Voluntary Manslaughter, as would occur “where you’re 

happily married and you have kids and you think everything is fine, and you come home 

and you find your spouse in bed with somebody else and you pull out a gun and shoot 

him.”1 (Id. at pp. 99-100.) 

 

1 The transcript reads “involuntary” manslaughter but it is clear from the context that the 

prosecutor was giving an example of “voluntary” manslaughter. 

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With regard to Involuntary Manslaughter, government’s counsel said it “is not an 

appropriate charge in this case for you to consider as a lesser included offense,” 

explaining the negligence element as akin to a drunk driver who runs a red light and kills 

somebody. (Ex. B., p. 99.) He argued, “[t]hat’s not this case. That’s not this case.” (Id.)

After 16 days of hearing extensive testimony and evidence, and after another 

several days of deliberation, the jury unanimously found Agent Swartz not guilty of 

Second Degree Murder. The jury also was unable to reach a unanimous verdict as to the 

lesser included offenses (voting 7 to 5 for acquittal). This Court should not permit the 

Government to re-try Agent Swartz on the lesser crimes it previously argued were not 

supported by the evidence. Alternatively, the Government should not be permitted to 

argue theories that are inconsistent with or contradict those advanced at Agent Swartz’s 

first trial. To do so would violate Due Process and Mr. Swartz’s constitutional right to a 

fair trial.

II. LAW

A. This Court Should Apply the Equitable Remedy of Judicial Estoppel to 

Preclude a Second Trial of Agent Swartz on Manslaughter Charges

The doctrine of judicial estoppel is invoked at the court’s discretion, to preclude a 

party from abusing the judicial process by taking inconsistent positions in the same 

litigation. Yanez v. United States, 989 F.2d 323, 326 (9th Cir. 1993). It is an equitable 

doctrine that is most commonly “applied to bar a party from making a factual assertion in 

a legal proceeding which directly contradicts an earlier assertion made in the same 

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proceeding or a prior one.” Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990). Judicial 

estoppel is a rule that seeks to prevent “intentional self-contradiction...as a means of 

obtaining unfair advantage.” Arizona v. Shamrock Foods Co., 729 F.2d 1208, 1215 (9th 

Cir. 1984) (quoting Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 

1953)). Most importantly, the policies underlying preclusion of inconsistent positions are 

“general consideration[s] of the orderly administration of justice and regard for the 

dignity of judicial proceedings.” Id. (citation omitted).

In this case, the Government indicted Agent Swartz only for Second Degree 

Murder, not for Manslaughter. At the end of the trial, the defense objected to the jury 

receiving instructions on any lesser-included offenses. The government fought hard to 

obtain a murder conviction of Agent Swartz, but a jury disagreed with the theory of the 

prosecution. If the jury had not been instructed on the two manslaughter charges, Agent 

Swartz could not now be tried for manslaughter because jeopardy would have attached by 

virtue of his acquittal. United States v. Gooday, 714 F.2d 80, 82 (9th Cir. 1983) (“[i]f no 

instructions are given on lesser included offenses ... an acquittal on [a greater] charge 

necessarily implies an acquittal on all lesser offenses included within that charge. An 

acquittal on the explicit charge therefore bars subsequent indictment on the implicit lesser 

included offenses.”).

The Government elected a theory of the legal implication of the facts shown by the 

evidence. The Government has not released any significant new disclosure or identified 

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new witnesses since the first trial. In other words, the jury will hear the same evidence the 

government presented previously. This time, however, the Government will argue the 

evidence leads to a conclusion that is opposite of what it argued in the first trial. 

Prosecutors can exert tremendous influence over the jury, even though they are instructed 

that arguments of counsel are not evidence. Unlike their “hired gun” counterparts, 

prosecutors “enjoy unique prestige and power” as representatives of the United States. 

See Caldwell v. Mississippi, 472 U.S. 320 (1985). For this reason, government’s counsel 

is afforded a presumption of credibility in the eyes of the jury that is difficult to attack.

The presentation by the Government of an entirely different – contradictory –

theory of Agent Swartz’s criminal liability, based on the same facts, offends the judicial 

process and disregards the dignity of judicial proceedings. Russell v. Rolfs, 893 F.2d at 

1037 (citing 1B Moore’s Federal Practice ¶ .405[8], at 238–42 (2d Ed.1988)). Rather than 

permit this, this Court should exercise its discretion and authority to grant Agent Swartz 

equitable relief by precluding his retrial on grounds of judicial estoppel.

B. Inconsistent or Contradictory Theories of Prosecution Offends Due 

Process

The strategic necessities of successive trials should not be the benchmark of 

fundamental fairness; rather, that is the role of Due Process, which protects an accused 

from actions that violate “those fundamental conceptions of justice which lie at the base 

of our civil and political institutions and which define the community’s sense of fair play 

and decency.” United States v. Lovasco, 431 U.S. 783, 790 (1977) (citations omitted). 

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The requirement of “fundamental fairness,” therefore, is a core value “embodied in the 

Due Process Clause of the Fourteenth Amendment.” In re Winship, 397 U.S. 358, 369 

(1970) (Harlan, J., concurring). Accordingly, barring the prosecution from asserting 

inconsistent and contradictory legal theories in a successive proceeding involving the 

same parties and the same evidence, promotes fair enforcement of criminal laws, the 

fairness of the judicial process, and the integrity of the justice system. Conversely, Agent 

Swartz will be deprived fundamental fairness if the Government is allowed to present 

flip-flopping theories about the same alleged crime. This deprivation is exacerbated when 

the statements are not being made to the same jury, which would otherwise be able to 

evaluate the credibility of the prosecutors’ different positions as it relates to their own 

responsibilities to evaluate the evidence and apply the law.

Prosecutors have a unique role in the judicial process. They represent the interests 

of the sovereign, and thus, have a heightened responsibility to ensure that fairness is 

achieved a defendants’ due process rights are protected. Berger v. United States, 295 U.S. 

78, 88 (1935). If the Government is permitted to theorize and argue to another jury that 

Agent Swartz indeed shot Jose Rodriguez during sudden quarrel or heat of passion, that 

inconsistency is improper because one theory is necessarily incorrect. Due Process is 

violated because the result is a demeaning of the judicial process, with Agent Swartz 

caught in the cross-hairs. 

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In Thompson v. Calderon, 120 F.3d 1045 (9th Cir. 1997) (en banc), rev’d on other 

grounds, 523 U.S. 538 (1998), a plurality of the en banc Ninth Circuit held, “it is well 

established that when no new significant evidence comes to light a prosecutor cannot, in 

order to convict two defendants and separate trials, offer inconsistent theories of facts 

regarding the same crime.” 120 F.3d at 1058. Doing so offends Due Process because in 

one of the trials, the prosecution fell short of its duty to “vindicate truth and to administer 

justice.” Id. 

Thompson and other cases often discuss a prosecutor’s use of false evidence or act 

in bad faith as a precondition of finding a due process violation based on inconsistent 

theories in separate trials against separate defendants charged with the same crime. See 

Nguyen v. Lindsey, 232 F.3d 1236, 1240 (9th Cir. 2000). The question presented here is 

somewhat different, because the same defendant is being tried lesser included offenses, 

but the legal analysis should be similar. The Government argued to the jury that the 

evidence did not support a conviction for manslaughter. The only way for the 

Government to obtain a conviction against Agent Swartz now, is to take a 180-degree 

turn and urge a jury to convict Agent Swartz of that very offense. This is tantamount to 

bad faith because there is no way to reconcile those contradictory theories on any rational 

basis.

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This Court should preclude the Government from asserting inconsistent or 

contradictory theories in order to protect Agent Swartz’s Due Process Rights to a 

fundamentally fair trial.

C. The Special Ethical Duties of a Prosecutor Conflict with Presenting 

Inconsistent or Contradictory Theories

Prosecutors have special ethical duties that arise from their unique positions of 

power and authority, regardless of their State of licensure. For example, every State has 

adopted the ABA Model Rules of Professional Conduct,2 which include Rule 3.8, 

“Special Responsibilities of a Prosecutor.” At its core, Rule 3.8 is meant to address the 

the responsibilities of a prosecutor “as a minister of justice and not simply that of an 

advocate.” Rule 3.8 Comment 1, ABA Model Rules of Professional Conduct (4th ed.). 

“This responsibility,” the comment continues, “carries with it specific obligations to see 

that the defendant is accorded procedural justice... .” Id. The ABA also promulgates 

Criminal Justice Standards for the Prosecution Function,

3 which are aspirational 

standards intended to be consistent with and supplement the Model Rules. Standard 3-

1.1, ABA Criminal Justice Standards for the Prosecution Function (4th ed.). Once again 

 

2

https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_p

rofessional_conduct/alpha_list_state_adopting_model_rules.html

3

https://www.americanbar.org/groups/criminal_justice/standards/ProsecutionFunctionFourthEditi

on.html

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these guidelines underscore the primacy of a prosecutor’s duty to seek justice within the 

bounds of law, to serve the public interest, and to act with integrity. Id. at Standard 3-1.2.

The preceding sections argue that Agent Swartz’s due process rights will be 

violated if the Government is permitted to advance inconsistent prosecution theories at a 

second trial. Prosecutors who knowingly adopt inconsistent positions in separate 

proceedings without adequate justification (i.e. a shift in the evidence presented), know

that one of those positions is wrong; they therefore lack a good faith belief in one of the 

positions. Because procedural justice cannot occur in that environment, doing so is 

contrary to a prosecutor’s ethical duties under Rule 3.8 and the standards noted above.

III. CONCLUSION

For all the foregoing reasons, the Court should apply judicial estoppel to prevent 

the Government from trying Agent Swartz on Manslaughter charges. Alternatively, the

Court should preclude the Government from taking any position, or advancing any 

argument, that contradicts or is inconsistent with the positions and arguments it made at 

Agent Swartz’s first trial.

Respectfully submitted this 18th day of July, 2018.

LAW OFFICE OF SEAN CHAPMAN, P.C.

BY: s/Sean C. Chapman

Sean Chapman

Attorney for Defendant

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CERTIFICATE OF SERVICE

The undersigned certifies that on July 19, 2018, caused to be electronically filed the 

foregoing document with the Clerk of the Court using the CM/ECF system which sent 

notification to the following:

Wallace H. Kleindienst

Mary Sue Feldmeier

Wallace.Kleindienst@usdoj.gov

Mary.Sue.Feldmeier@usdoj.gov

US Attorney’s Office – Tucson, AZ

405 W. Congress, Suite 4800

Tucson, AZ 85701-4050

Serena Lara

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