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Sean C. Chapman 

Law Office 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 

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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CR 15-1723 TUC RCC (DTF)

MOTION FOR WITNESS 

DEPOSITION

It is expected that excludable delay under Title 18, United States Code, § 

3161(h)(1)(F) will occur because of this motion or an order based thereon.

The Defendant, Lonny Swartz, through undersigned counsel, Sean C. Chapman 

of THE LAW OFFICE OF SEAN C. CHAPMAN, P.C., respectfully requests that this 

Court issue an order scheduling a material witness deposition for witness ..... in this 

matter pursuant to Rule 15(a)(1) of the Federal Rules of Criminal Procedure.1 This 

motion is supported by the accompanying Memorandum of Points and Authorities.2

 

1 The witness’ name and other identifying information are redacted from this pleading. An unredacted 

version of this motion is being filed under seal.

2 Pursuant to L.R.Crim. 12.1(a) and L.R.Civ. 7.2(j), undersigned counsel certifies that after personal 

consultation and sincere efforts to do so, counsel have been unable to satisfactorily resolve this matter.

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MEMORANDUM OF POINTS AND AUTHORITIES

I. Facts/Procedural History

The government alleges that defendant Lonny Swartz, a United States Border 

Patrol agent, committed the offense of Second Degree Murder when he shot and killed 

the decedent on October 10, 2012. The shooting occurred along the international border 

in Nogales, Arizona as Swartz and other agents were attempting to apprehend two drug

smugglers who had come into the United States with large bundles of marijuana, 

dropped them, and were attempting to climb back over the international border fence 

into Mexico.

The area of the shooting is known as the “West International” area, which is just 

west of the De Concini Port of Entry. Other areas along the fence in Nogales are used 

by illegal entrants and alien smugglers, but this particular area is used exclusively by 

drug smugglers. Given its exclusive use for drug smuggling, agents are trained that this 

is a dangerous area---smugglers are more aggressive, they tend to resist apprehension 

more strenuously, and tend to be more assaultive toward the agents. This area also 

tends to be scouted more carefully by cartel members both on the U.S. and the Mexican 

side.

The decedent, and other unknown individuals, were throwing rocks at Swartz and 

other agents from Nogales, Sonora to impede the agents’ efforts to apprehend the two 

drug smugglers who were atop of the international boundary fence attempting to escape 

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into Mexico. The actions of the two drug smugglers were part of a coordinated effort to 

bring drugs into the United States and involved not only them, but other individuals 

working for this conspiracy---including the decedent and other rock throwers on the 

Mexican side of the fence.

Although the decedent has sometimes been portrayed as an innocent bystander to 

this operation, he clearly was involved. His involvement, the modis operandi of the 

drug operations in this area, and Agent Swartz’s heightened concerns about safety and 

security in this specific area are part of the theory of the defense in this case, and will 

assist the jury in assessing the reasonableness of Agent Swartz’s actions.3

During the investigation in this case, the defense has learned that, not only was 

the decedent throwing rocks at agents from Mexico, but shortly before then, was in the 

United States, being pursued by law enforcement agents. 

On December 7, 2016, the government interviewed a witness identified as .....,

who resides at ........... Arizona. ........ residence is roughly 50 meters north of the 

international border, and very close to the area where the shooting occurred. .....

indicated that ... knew the decedent and had seen him in the neighborhood as he was 

growing up. ... indicated that he would pass by ... house and was in the neighborhood 

 3 It is not clear whether the government agrees with the defense assessment of the 

decedent’s involvement in this case, as a witness was disclosed who purports to suggest that 

the decedent was simply walking home at the time he was shot.

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frequently. In an earlier interview, ...... indicated that ... family had disassociated 

itself from the decedent after he became involved in drug smuggling at an early age.

.......... stated that on the night of the shooting, ... saw the decedent run by ...

house southbound toward the border fence. .... stated that ... saw two Border Patrol 

Agents by ... house and had a premonition that something bad was going to happen to 

the decedent. .... assumed the agents were chasing the decedent, and heard them say in 

Spanish that they were going to find him. .......... went to bed, and a short time later 

heard gunshots. ... later learned that the gunshots ... heard were related to the shooting 

of the decedent by Agent Swartz.

.......... testimony is highly relevant to the defense because it describes the 

decedent’s actions on the night of the shooting and shortly before it. .......... testimony

establishes that the decedent was involved in a smuggling operation not only when he 

was attempting to rock agents, but a few minutes earlier on the American side of the 

border. Whether he personally transported drugs or acted as a scout is unclear---what is 

clear is that he was involved in this operation. 

This evidence is probative not only in terms of justifying Agent Swartz’s 

heightened concerns about this area, but also relevant in that it provides the jury with a 

complete picture of the events which occurred on that night. 

The decedent was involved in a conspiracy to import drugs into the United States

as reflected not only by his efforts to harm agents with rocks, but also by his presence in 

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the United States shortly before the shooting. ..... observations of the decedent merely 

completes the story for the jury.

........ was served with a trial subpoena by the defense on March 8, 2017. On 

April 20, 2017, the defense investigator had additional contact with ..... At that time, 

.... indicated a great reluctance to testify in this matter, despite the fact that .... had 

been served with a subpoena. .......... stated that ........ would not permit ... to appear 

in court. ..... stated that ......... was “very strict” and “will not allow ..... to show up.” 

....... also indicated that .......... has significant health problems and .... could not 

leave ..... to testify. ..... further indicated that ...... had a valid medical reason not to 

appear to testify due to .......... illness, even if ordered to do so.

II. Law

Rule 15(a)(1) of the Federal Rules of Criminal Procedure provides that:

A party may move that a prospective witness be deposed in 

order to preserve testimony for trial. The court may grant the 

motion because of exceptional circumstances and in the interest 

of justice....

The district court retains broad discretion in granting a Rule 15(a) motion, and 

considers the particular circumstances of each case to determine whether the 

“exceptional circumstances' requirement has been satisfied.” United States v. Omene, 

143 F.3d 1167, 1170 (9th Cir. 1998) (quoting United States v. Farfan–Carreon, 935 

F.2d 678, 679 (5th Cir.1991)). This Court should exercise its discretion to permit the 

deposition of .......... because .... has strongly indicated that .... will not willingly 

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appear at trial even though .... has been subpoenaed for the trial. ..... testimony, 

however, is critical to the defense theory of the case, and completes the story for the 

jury in that it assists in painting a complete picture of the decedent’s actions on the 

night of the shooting. Thus, the purpose for .......... testimony satisfies Rule 15, which 

“contemplates a party taking the deposition of only his own witnesses, and only if the 

witness may be unable to attend trial.” United States v. Fei Ye, 436 F.3d 1117, 1123 (9th

Cir. 2006) (citing United States v. Rich, 580 F.2d 929, 934 (9th Cir. 1978) and United 

States v. Cutler, 806 F.2d 933, 936 (9th Cir. 1986)).

In addition, Rule 15(a) does not require a showing that the witness is unavailable 

for trial or that the evidence is material or favorable (although we believe it is both). 

Omene, 143 F.3d at 1170. The witness’s unavailability must be established before a 

party may use the deposition at trial, not before the party may depose a witness. Id.

“Rule 15(a) only requires that the trial court find that due to exceptional circumstances 

it is in the interest of justice that the testimony of a prospective witness be taken and 

preserved for possible use at trial.” Id. The Federal Rules of Evidence generally 

condition the admissibility of deposition testimony, in the absence of trial testimony, on 

the unavailability of the witness. See Fed.R.Evid. 804(b). But, “[i]t would be 

unreasonable and undesirable to require the [ a party] to assert with certainty that a 

witness will be unavailable for trial months ahead of time, simply to obtain 

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authorization to take his deposition.” United States v. Sines, 761 F.2d 1434, 1439 (9th 

Cir. 1985). 

III. Conclusion

For all the foregoing reasons, Defendant respectfully requests that the Court issue 

a summons to the witness requiring .... to appear at a deposition in this matter, in order 

to preserve ..... testimony.

Respectfully submitted this 9th day of May, 2017.

LAW OFFICES OF SEAN CHAPMAN, P.C.

BY: /s/ Sean Chapman

Sean Chapman

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Electronically mailed this 99th day of May 2017 to:

United States District Court

Wallace Kleindeinst

Mary Sue Feldmeier

United States Attorneys Office

405 W. Congress Street

Suite 4800

Tucson, AZ 85701-5040

Serena Lara

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