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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)

DEFENDANT’S REPLY TO 

MOTION IN LIMINE TO 

PRECLUDE EVIDENCE OF 

DEFENDAN’TS ARMY SERVICE 

AND PERSONNEL RECORDS

Defendant Lonnie Ray Swartz, by and through undersigned counsel, hereby 

replies to the government’s response to his motion in limine to preclude evidence of his 

army service and personnel records. (Doc. 272, Doc. 282.) For the following reasons, 

the motion should be granted.

1. Military Service Records

The government’s argument that Agent Swartz’s military service records are 

admissible in cross-examination under Fed. R. Evid. 608(b)(1), as related to his 

character for truthfulness, is based on an “inference” that Agent Swartz concealed the 

true facts of his military discharge from the Border Patrol. (Doc. 282, ¶ 4.) This is 
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demonstrably false. Agent Swartz provided a copy of his Military DD214, “Certificate 

of Release or Discharge from Active Duty,” to the Border Patrol during his initial 

background investigation in 2009, and again during his five-year reinvestigation in 

2014. (See Exhibit A.) Agent Swartz also provided a copy of his Military Outprocessing Identification Card, which provides the expiration date of his active duty as 

December 22, 1997. (See Exhibit B.) Contrary to the government’s comment, it was not 

false for Agent Swartz to explain his “other than honorable discharge” in the context of 

enlisting at his father’s insistence, realizing that he made a mistake, and quitting before 

completing basic training. (Id.) By submitting these documents to the Border Patrol,

Agent Swartz supplied the government with documentation setting forth all of the 

circumstances of his Army service, including the dates and reason for discharge.

It is important to note that, with respect to how Agent Swartz reported his military 

disciplinary record to the Border Patrol, each of the two background investigation 

questionnaires restricted the relevant time frame to the preceding 7 years. (See Exhibit 

C.) Agent Swartz’s Army service officially concluded in 1998, 11 years before his 

initial application with the Border Patrol in 2009, and 16 years before his reinvestigation 

in 2014. His responses on the questionnaires were truthful. Even so, because Agent 

Swartz had provided his Military DD214 and Out processing ID, there can be no valid 

claim that he concealed anything.
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The allegation that Agent Swartz falsely stated he’d never been arrested is 

likewise misinformed. (Doc. 282, ¶¶ 5, 6.) What the government refers to as Agent 

Swartz being taken “into military custody” at Nellis Air Force Base was not an arrest. 

(Doc. 282, ¶ 3.) Agent Swartz, who was neither handcuffed nor restrained in any way, 

was driven by an agent from his home in Las Vegas a short distance to Nellis AFB. He 

was there for less than 30 minutes, during which time he was told to report to Fort Sill, 

Oklahoma within one week in order to formally process out of the Army. Agent Swartz 

traveled on his own to Fort Sill. He was housed on the base (not confined to a cell or 

anything similar) for a few days until the processing was complete. Agent Swartz signed 

his paperwork on or about October 23, 1997, and returned to Las Vegas the next day.

The government charges that the defendant paints with a very broad brush, but in 

reality the government writes with a very sharp pencil. Their effort to parse Agent 

Swartz’s words in order to manufacture false statements with which to impeach him, 

should be rejected. Nevertheless, if Court is considering granting the government’s 

motion, then the defense requests a hearing at which the facts can be fully vetted. 

Impeachment by use of prior false statements obviously contemplates that the 

statements were actually false and the defendant knew they were false when he made 

them. Fed. R. Crim. P. 608(b)(1). 

In the Reid case cited by the government, for example, the impeachment 

“consisted of appellant’s own admissions of previous falsehoods,” but not the document 
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containing the false statements. United States v. Reid, 634 F.2d 469, 473 (9th Cir. 1980.)

The same is true of the other cases relied on by the government. In United States v. 

Amaechi, 991 F.2d 374, 379 (9th Cir. 1993), the government did not have to prove up the 

extrinsic act because the defendant admitted the immigration and tax forms were false. 

In United States v. Jackson, 882 F.2d 1444, 1447-48 (9th Cir. 1989), the government 

impeached Jackson with a sworn statement in which he admitted misappropriating client 

funds. Because Jackson admitted to the false statement, the document was not admitted 

into evidence.1

The Jackson case is instructive for another reason as well. The Court tracked the 

history of Rule 608(b)’s evolution with respect to its treatment of remote acts of 

misconduct. That restriction was deleted “in order to encourage flexibility,” but the 

Court emphasized that “remoteness remains a relevant factor for the trial court to 

consider in assessing the probative value of the evidence.” Id. at 1448. The assessment 

the trial court is to make is a Rule 403 weighing of the relevance of the evidence to 

honesty and veracity with its prejudicial impact. Under Rule 403 relevant evidence may 

be excluded if its “probative value is substantially outweighed by the danger of unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or 

 

1 The Ninth Circuit has made clear that even when an extrinsic matter is used for 

impeachment, the prosecution is limited to asking the witness about the document but 

may not enter the documents as extrinsic evidence. United States v. Oriyomi, 449 

Fed.Appx. 681, 682 (9th Cir. 2011) (unpublished). Thus, even if this Court allowed the 

government to impeach Agent Swartz, it would be with a “false statement relating to 

military service,” not the facts of the military service.
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needlessly presenting cumulative evidence.” Fed. R. Evid. 403 (emphasis added). The 

lack of certainty that Agent Swartz indeed made a knowingly false statement diminishes 

the probative value of this evidence to the extent that it is substantially outweighed by 

its unfair prejudice, confusion, and the misleading nature of the inquiry.

2. Personnel Records

The government lists several broad categories of personnel records that it 

considers relevant to the issues in this case and, therefore, admissible as “substantive” 

evidence. (Doc. 282, ¶ 12.) The government also suggests that these same types of 

records may be used to impeach Agent Swartz. Because the Rules of Evidence are 

nuanced and subject to relevancy and its limits, the defense requests that the Court order 

the government to identify which records it intends to introduce at trial. Then, the 

defense should have an opportunity to file a motion contesting the admissibility of the 

records identified by the government. This procedure would serve judicial economy. 

United States v. W.R. Grace, 526 F.3d 499, 513 (9th Cir. 2008) (holding court has 

inherent authority to manage its docket and enforce pre-trial orders).

Respectfully submitted this 29th day of January, 2018:

LAW OFFICES 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 January 29, 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

Wallace.Kleindienst@usdoj.gov

Mary Sue Feldmeier

Mary.Sue.Feldmeier@usdoj.gov

US Attorney’s Office – Tucson, AZ

405 W. Congress, Suite 4800

Tucson, AZ 85701-4050

Serena Lara