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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 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 FOR SANCTIONS 

(BRADY VIOLATION) AND 

MOTION TO RECUSE THE 

UNITED STATES ATTORNEY’S 

OFFICE FOR THE 

DISTRICT OF ARIZONA

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

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

The defendant, through counsel undersigned, pursuant to the Fifth Amendment’s

Due Process Clause and the Sixth Amendment’s right to a fair trial, hereby moves this

Court to impose sanctions against the U.S. Attorney’s Office (“USAO”) and order the

recusal of the United States Attorney’s Office for the District of Arizona. The legal basis

for this motion, discussed in detail below, is the government’s suppression of key

exculpatory evidence until shortly before the upcoming firm trial date, and its actions in

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connection with the key exculpatory evidence, all of which has prejudiced the Defendant

and caused one of the prosecutors originally assigned to the investigation to now be a

material trial witness.

MEMORANDUM OF POINTS AND AUTHORITIES

I. ISSUES PRESENTED

The issues presented in this motion are: (1) whether the Court should impose

sanctions against the government for Brady violations that have occurred as the result of

the government’s failure to disclose key exculpatory evidence until the eve of trial, and

(2) whether the Court should order the United States Attorney’s Office for the District of

Arizona recused from further representation of the government in this matter as a

sanction, and because one of its prosecutors is now a material witness in this matter.

II. FACTS

The government charged defendant Lonnie Swartz, a United States Border Patrol

Agent, with Second Degree Murder in violation of 18 U.S.C. § 1111(a) and (b). (Doc. 1.) 

Specifically, the government alleges that, without legal justification and acting with

malice aforethought, Agent Swartz shot and killed Jose Antonio Elena-Rodriguez. The

trial is set for October 24, 2017.

On October 10, 2012, Agent Swartz, along with other law enforcement agents,

responded to the international border in Nogales in an effort to apprehend two marijuana

smugglers who were attempting to climb over the fence and escape into Mexico. As

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Agent Swartz approached the scene, drug cartel members, including Elena-Rodriguez,

started throwing rocks from the Mexican side of the border at federal and local law

enforcement officers, in a concerted effort to help the two smugglers who remained on

top of the fence avoid apprehension. Agent Swartz was in the area being bombarded with

rocks. He also knew there were several other agents in the area being rocked. In addition,

Agent Swartz observed a police dog get hit with a rock, and he became aware that a

fellow agent was hit as well. Acting in defense of himself and others, Agent Swartz fired

on the rock throwers from three firing positions. One of the rock throwers, ElenaRodriguez, was killed.

The government extensively investigated this shooting for three years before

seeking an indictment in October, 2015. The USAO has dedicated two prosecutors to this

matter since its inception in October 2015. They have worked with investigators from the

FBI and the Department of Homeland Security’s Office of Inspector General (“OIG”).

One OIG special agent has been working full time on this matter for several years.

A. Manipulation of Key Evidence on the Critical Issue of When ElenaRodriguez Suffered the Fatal Head Wound

At trial, there will be no dispute that Agent Swartz shot and killed ElenaRodriguez. The evidence will show the decedent and others, standing in Mexico, were

rocking Agent Swartz and other agents in his immediate vicinity. The two key issues that

will be essential to the jury’s determination of guilt or innocence in this matter are: (1)

whether Agent Swartz acted in self-defense when he shot Elena-Rodriguez; and (2)

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whether Elena-Rodriguez was fatally shot in the head while he was standing or after he

collapsed to the ground. 

The government’s theory is that after the first volley of shots, Elena-Rodriguez

collapsed to the ground but was still alive and no longer a threat to Agent Swartz.

Nevertheless, the government argues, Agent Swartz continued to fire at him. Under this

theory, Agent Swartz acted without legal justification and with malice aforethought by

continuing to shoot at Elena-Rodriguez after he was incapacitated by the first set of shots

and went to the ground.

The defense maintains that one of the first shots fired by Swartz from his first

firing position hit the decedent in the head, instantly killing him and causing him to

collapse. It is the defense position that Agent Swartz was legally justified in using lethal

force. Further, because the decedent was fatally injured with one of the very first shots

while he was an active threat, Agent Swartz is not criminally liable for Elena-Rodriguez’s

death, even if he continued to fire at him after he was killed, and collapsed to the ground.

Thus, unquestionably, evidence bearing on exactly when Elena-Rodriguez suffered

the fatal head wound is key, material evidence in this case. From the outset of this

prosecution two years ago, both parties have prepared their cases - through investigation,

retention of experts, and extensive pretrial litigation - to support their respective positions

on this issue.

The two Mexican pathologists who performed the decedent’s autopsy in Mexico,

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Drs. Javier Diaz Trejo and Absalon Madrigal Godinez, produced a report that was

disclosed to the defense in 2016. The report, written in October of 2012, concludes that

the cause of death was a “wound to the encephalic [head] tissue by a projectile fired by a

firearm,” but it did not address when, in the sequence of shots, Elena-Rodriguez suffered

the fatal head wound. The report also does not touch upon the decedent’s physical

position when he received the fatal shot or whether he was alive after he collapsed to the

ground.

To overcome the inconclusive autopsy report, the government has tried to

strengthen its position by extracting individual still images from a rapidly moving piece

of unreliable thermal video1 taken at the time of the shooting, which the government

claims shows movement by the decedent after he hit the ground. The government’s

animation expert, James Tavernetti, used these images to fabricate2 illustrations

purporting to show movement by Elena-Rodriguez after he fell to the ground. In addition

to these thermal images, the government also disclosed an expert who opined that blood

spatter on a wall near where the decedent fell indicates he was shot while his head was on

the ground or possibly raised in the air. The government’s late disclosure of the blood

spatter expert necessitated a continuance of the then-firm trial date. (Doc. 114.)

The defense retained Dr. Cyril Wecht, a pathologist who after reviewing the

 

1 The only expert testimony provided to this Court regarding the thermal video was that 

it is inherently unreliable and completely unsuitable for the purpose of discerning subtle 

motions.

2 Mr. Tavernetti has no expertise in thermal image interpretation.

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evidence concluded that the fatal head wound occurred while the victim was standing,

after which he immediately collapsed. The government has disclosed its own expert

pathologist who, based on, among other things, the unreliable thermal video discussed

above, concluded that Elena-Rodriguez was knocked to the ground by a shot to his back

that left him alive and able to move his head until he suffered the fatal shot in the head.

In light of the parties’ competing theories regarding when the decedent was killed

(standing or prone on the ground), the findings and opinions of Drs. Diaz and Madrigal,

the Mexican pathologists who actually observed the decedent’s body and who conducted

the only autopsy in this case, are critically important. The government has known,

however, since at least August of 2014, that the Mexican pathologists agreed with the

defense’s theory, but did not disclose this fact to the defense until a few weeks ago. The

disclosure that the government did provide (in 2016) on this issue was misleading. 

Three documents demonstrate the government’s withholding and manipulating of

key evidence regarding when Elena-Rodriguez suffered the fatal head wound until 60

days prior to the trial date: (1) the original autopsy report dated October 11, 2012; (2) a

Nov. 28, 2016 government report summarizing an interview of Dr. Diaz four years after

he completed the autopsy; and (3) an August, 2017 disclosure regarding government

interviews of Dr. Diaz and witnesses Marquez-Zarate and Villareal, that took place on

Aug. 19, 2014.

/ / /

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1. Statements Made by Pathologist Dr. Diaz

Early in 2016 the government disclosed Drs. Diaz and Madrigal as expert

witnesses. The government further indicated in this disclosure that these witnesses would

testify consistently with their findings and opinions contained in their autopsy report. As

discussed above, Dr. Diaz in his Oct. 11, 2012 autopsy report provided no opinion

regarding whether Elena-Rodriguez was upright or prone when he suffered the fatal head

wound.

In early 2017, the government disclosed a report of a Nov. 28, 2016 interview of

Dr. Diaz conducted by the OIG case agent and two AUSAs. Also present were other

Mexican and U.S. agents and an interpreter. According to this report, Dr. Diaz opined –

now four years after his autopsy report - that Elena-Rodriguez could have been knocked

to the ground from other wounds where he then could have suffered the fatal head shot

while still alive. According to Dr. Diaz, Elena-Rodriguez’s head could have been lifted

off the ground when he was shot. This last point is critical because Dr. Diaz’s newly

minted opinion aligned nicely with the opinions of other experts retained by the

government. Coincidentally, the government chose not to record this interview so it is

impossible to know exactly what Dr. Diaz said to the prosecutors and investigators.

Now, less than 60 days prior to trial, the defense has learned that the government

withheld key, substantive evidence regarding Dr. Diaz’s opinions for roughly three years.

This evidence is not a report but the personal notes, both handwritten and typewritten, of

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one of the AUSAs3 present for an interview of Dr. Diaz on August 19, 2014. On Aug. 17,

2017, the lead AUSA on the case disclosed these notes.

According to the notes and a brief letter from the lead AUSA, the two assigned

AUSAs and the OIG case agent traveled to Mexico on August 19, 2014, to interview

three witnesses including Dr. Diaz. Before these interviews took place, the AUSAs

instructed the OIG case agent to leave the room. The AUSAs also elected, despite the

critical nature of Dr. Diaz’s testimony, to not record their interview of him. The only

document memorializing the substance of Dr. Diaz’s interview are the AUSA’s notes.

The lead prosecutor’s decision to order the case agent from the interview was so

unusual that about one month later the FBI interviewed the OIG case agent about the

incident. She told the FBI investigator that she was directed to wait outside because the

room was “crowded.” She also told the FBI investigator that she had not received a report

from the prosecutors about the interview, nor even been told who they interviewed. 

The AUSA’s notes indicate a drastically different version of Dr. Diaz’s opinions

than previously disclosed. As noted above, Dr. Diaz in his 2016 interview allowed for the

possibility that Elena-Rodriguez could have been knocked to the ground from other shots

where he then suffered the fatal head wound while still alive. But according to the

AUSA’s notes, in 2014 Dr. Diaz believed unequivocally that Elena-Rodriguez was

standing when he suffered an initial shot to his head that instantly killed him and resulted

 

3 This particular AUSA is no longer assigned to the case, but she worked on it for a 

substantial period of time and remains at the U.S. Attorney’s Office in Tucson.

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in his fall to the ground. The AUSA’s notes record Dr. Diaz’s opinion as follows: “First

impact was to the head = death, then he was shot up.” The reason, Dr. Diaz explained at

that time, was that the initial shot to the head caused the decedent to lose balance and fall,

consistent with contusions on the decedent’s face. Dr. Diaz was then specifically asked if

he could rule out a shot in the back causing collapse and then a shot to the head while

Elena-Rodriguez was on the ground (i.e., government’s theory, disclosed in 2016 report).

Dr. Diaz, according to the 2014 notes, responded: “No, I think he was standing and back

was to the shooter. The first impact he was standing because on the body there were 5-6

impact wounds and [they] displace in a different direction because of the impact and his

position.” The AUSA also noted Diaz as opining: “First wound was to the head because

the injury made the person lose balance.” Without question, Dr. Diaz’s 2014 statements,

two years after the autopsy and two years before his 2016 statements, support the

defendant’s version of events in this case.

Additionally, the notes indicate that in 2014, Dr. Diaz couldn’t recall any injury to

the spinal cord being revealed during the autopsy, and indeed this is consistent with Dr.

Diaz’s 2012 autopsy report, which is silent with respect to a spinal cord injury. The

government’s subsequent report in 2016, however, states that Dr. Diaz does recall an

injury to the spinal column. This is significant because Dr. Diaz’s 2014 opinions, hidden

until recently, contradict the government’s current theory that the decedent was first shot

in the back, which paralyzed him and caused him to fall to the ground where he suffered

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the fatal shot to the head.

There is no question that the government knew the information provided by Dr.

Diaz in 2014 was crucial exculpatory evidence for the defense. It appears that the

contents of this interview were withheld for three years and only released two months

before trial so that the government would have a strategic advantage at trial. Also without

explanation, the government purposefully chose to interview a key witness with neither

the case agent nor a recording device to memorialize the substance of the interview -

something seasoned prosecutors would only do if they were trying to prevent the

development of evidence harmful to the government’s case. As a result, the government

attorneys have made themselves impeachment witnesses for the defense in this matter. In

fact, the government has agreed to accept service of a trial subpoena on behalf of the

AUSA who generated the 2014 notes.

It is no coincidence that the government informed undersigned counsel two weeks

ago that it no longer intends to call Dr. Diaz as a trial witness. Instead, they intend to call

Dr. Madrigal, a much more junior pathologist, to attest to the autopsy findings. It was

only after being questioned about their late disclosure and their election not to call Dr.

Diaz that the prosecutors have now agreed to keep Dr. Diaz on the government’s witness

list. This necessary concession, however, does not eliminate the conflict of interest

because the note-taking AUSA’s testimony will be necessary in rebuttal regardless of

who calls Dr. Diaz to the witness stand, particularly since Dr. Diaz’s opinions have

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evolved over time to now support the government’s case.

The AUSA’s 2014 notes also reflect additional statements by Dr. Diaz that have

not previously been disclosed. They include the following:

• Elena-Rodriguez’s upper body came into contact with the wall of the house

where he fell.

• Statements involving the manner in which Elena-Rodriguez’s clothing were

collected and preserved.

• “Photos” were taken of Elena-Rodriguez’s body with styluses in the

“wounds” to indicate the wound paths and bullet trajectories.

• The various trajectories established that the initial wound suffered by ElenaRodriguez took place when he was standing and, after falling, he suffered

the remainder of his wounds.

• The pathologists did not clean the bullets found in or around ElenaRodriguez so any trace evidence would still exist.

These statements further bolster Dr. Diaz’s original opinion that Elena-Rodriguez

suffered the fatal head shot while standing. But, importantly, they also indicate that Dr.

Diaz deciphered the sequence of wounds suffered by Elena-Rodriguez by determining

and photographing his various wounds with a stylus inserted into each wound so he could

determine the trajectory of the bullets causing them. Thus far, the government continues

to insist that these important photographs do not exist save for one that was disclosed.

B. Evidence Regarding Trajectory of Bullets in Decedent’s Body

As indicated above, the government also failed to disclose critical information

regarding the wound paths as determined by the Mexican pathologists. This is significant

because the parties are attempting to extrapolate from the angles/trajectories of the wound

paths the various positions of the decedent (i.e. prone or standing) when he received

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various bullet wounds. The autopsy report indicates that the pathologists explored the

majority of the wounds using a “probe” or “stylet,” which provided guidance on the

wound path and the bullet trajectory into the body. The defense has also learned recently

that the government has failed to disclose photographs of the pathologists using these

stylets during the autopsy. Such evidence is obviously critical to determining the bullet

trajectories.

C. Contradictory Evidence Regarding Previously Disclosed Eyewitness

1. Statements Made by Witnesses Marquez-Zarate and Villareal

The AUSA who took notes of Dr. Diaz’s interview on August 19, 2014 also took

notes of other witnesses interviewed on that date. Importantly, one of these witnesses saw

what transpired on the Mexican side of the border before, during and after the shooting.

Jose Carlos Marquez-Zarate presented himself to Mexican authorities on the night of the

shooting and provided a statement to them. In this statement to Mexican authorities,

which was disclosed in early 2016, Marquez-Zarate said that he saw law enforcement

officers on the U.S. side of the border talking with two smugglers, that four rock throwers

appeared and began their attack on the officers, that he heard gunfire and that the rock

throwers had run away. However, the newly disclosed AUSA’s notes reflect several

critical, previously undisclosed statements by Marquez-Zarate, including the following:

• He said they threw rocks “here” and on Inginerios Street.

• The rock throwers were on corner of the doctor’s office. [Elena-Rodriguez

was shot and killed next to this corner.]

• He did not believe Elena-Rodriguez was a rock thrower but he also stated

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that he had been entering his home when the first shots were fired and that

he first saw Elena-Rodriguez after he was on the ground.

It is apparent the AUSAs were showing Marquez-Zarate a diagram of the local streets

that he used to identify the specific location where the rock throws attacked the agents.

This information is not available from any other source since the nearby border camera to

the west was focused on the U.S. side of the border and the far more distant east camera

only had a very long and truncated view of the Mexican side of the border. The diagram

or map used by the AUSAs has not been disclosed to the defense.

These statements are incredibly important to the defendant since, according to the

AUSA’s notes, Marquez-Zarate’s statements precisely locate where the rock throwers

were positioned during the attack, i.e. at the corner of the Mexican doctor’s office. This is

critical to Swartz because Elena-Rodriguez was shot next to this same corner. It is

apparent that Marquez-Zarate did not see Elena-Rodriguez get shot but his statements

establish that Elena-Rodriguez was within a few feet of the rock throwers and it helps

rebut the government’s assertion, perhaps now withdrawn, that Elena-Rodriguez was just

an innocent pedestrian who happened to get caught up in the shooting. At the very least,

Marquez-Zarate’s previously undisclosed statements put the rock throwers in close

proximity to Elena Rodriguez, which supports the defense’s contention that he was

actively involved in the attack on the law enforcement officers.

The AUSA’s notes also reflect statements by someone named “Villareal” who said

“Item #16 is a bullet under body” but “can’t tell from looking at them” but “they were

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labeled in a [indecipherable handwriting].” He also indicates that bullet 16 “impacts

against wall or something. I think we could with 50% assurance.” There is no information

regarding the identity of Villareal. However, these statements will likely involve the

number and location of bullets found near Elena-Rodriguez’s body.

Without question, the AUSAs who participated in the 2014 interviews acted

improperly by failing to ensure that the statements made by Dr. Diaz, Marquez-Zarate

and Villareal were properly memorialized and disclosed to the defense in a timely

manner. Their statements are clearly exculpatory and should have been immediately

disclosed. Further, the prosecutors’ conduct in removing the OIG case agent from the

interview room created the untenable situation whereby they are now witnesses in this

case.

II. ARGUMENT

A. The Government Violated the Mandates of Brady and its Progeny

1. Law and Department of Justice Policy

Government disclosure of material exculpatory and impeachment evidence is part 

of the constitutional guarantee to due process guaranteed by the Fifth Amendment. Brady 

v. Maryland, 373 U.S. 83, 87 (1963); Giglio v. United States, 405 U.S. 150, 154 (1972). 

The law requires the disclosure of exculpatory and impeachment evidence when such 

evidence is material to guilt or punishment. Brady, 373 U.S. at 87; Giglio, 405 U.S. at 

154. In Giglio, the Supreme Court found that the reliability of a given witness may be 

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determinative of an accused’s guilt or innocence; therefore, the failure to disclose 

evidence that may be used to impeach the witness’s credibility falls within the ambit of 

“material evidence” under Brady. 405 U.S. at 154. Because they arise from Constitutional 

obligations, Brady and Giglio evidence must be disclosed regardless of whether the 

defendant makes a request for exculpatory or impeachment evidence. Kyles v. Whitley, 

514 U.S. 419, 432-33, 438 (1995) (Due process imposes an “inescapable” duty on the 

prosecutor “to disclose known, favorable evidence rising to a material level of 

importance.”).

Exculpatory and impeachment evidence is material to a finding of guilt—and thus 

the Constitution requires disclosure—when there is a reasonable probability that effective 

use of the evidence will result in an acquittal. United States v. Bagley, 475 U.S. 667, 676 

(1985). Recognizing that it is sometimes difficult to assess the materiality of evidence 

before trial, prosecutors generally must take a broad view of materiality and err on the 

side of disclosing exculpatory and impeaching evidence. Kyles, 514 U.S. at 439. While 

ordinarily, evidence that would not be admissible at trial need not be disclosed, 

this policy encourages prosecutors to err on the side of disclosure even if admissibility is 

a close question. Thus, to the extent a prosecutor is uncertain about the materiality of a 

piece of evidence, “the prudent prosecutor will resolve doubtful questions in favor of 

disclosure.” Id. (quoting United States v. Agurs, 427 U.S. 97, 108 (1976)); see also id.

(The prosecutor is “the representative ... of a sovereignty ... whose interest ... in a 

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criminal prosecution is not that it shall win a case, but that justice shall be done.”) 

(quoting Berger v. United States, 295 U.S. 78, 88 (1935)); United States v. Alvarez, 86 

F.3d 901, 905 (9th Cir. 1996). 

Finally, disclosure of Brady information is timely when it is produced at a time that 

it will be valuable to the accused. United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 

1991); United States v. Gamez-Orduno, 235 F.3d 453, 461 (9th Cir. 2000). The test is 

whether “the lateness of the disclosure so prejudiced [the defendant’s] preparation or 

presentation of his defense that he was preventing from receiving his constitutionally 

guaranteed fair trial.” United States v. Miller, 529 F.2d 1125, 1128 (9th Cir. 1976).

The government’s recent disclosure, in its possession since 2014, clearly falls

within the ambit of Brady and its progeny. The government’s handling of this evidence

therefore violated Agent Swartz’s Fifth and Sixth Amendment rights. In addition to the

duty imposed on the government by the Brady doctrine, its dictates are also embodied in

specific guidelines applicable to federal prosecutors set forth in the United States

Attorney’s Manual (“USAM”). While the USAM guidelines may not have “the force of

law,” United States v. Fernandez, 231 F.3d 1240, 1246 (9th Cir. 2000), the U.S. Supreme

Court has long referenced them as the authoritative standards to which federal

prosecutors are held. See, e.g. Carachuri-Resendo v. Holder, 560 U.S. 563, 579 (2010)

(citing to the USAM as “underscoring the significance of § 851 procedures”); National

Association of Women, Inc. v. Scheidler, 510 U.S. 249, 261 (1994) (citing the amended

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USAM guideline regarding RICO prosecutions as informing the interpretation of the

RICO statute); Young v. ex rel. Vuitton et Fils S.A., 481 U.S. 787, 801-02 (1987) (citing

the USAM as reason that “courts can reasonably expect that the public prosecutor will

accept the responsibility for prosecution” of contempt actions); Sedima S.P.R.L. v. Imrex

Co., Inc., 473 U.S. 479, 502-03 (1985) (citing USAM to demonstrate that prosecutorial

discretion is a restraining influence on the expanded use of mail and wire fraud statutes).

Accordingly, the Ninth Circuit has also found violations of policies set forth in the

USAM as relevant to determining whether a defendant’s constitutional rights have been

violated. See, e.g. United States v. Goodwin, 57 F.3d 815, 818 (9th Cir. 1995) (citing the

USAM guideline requiring defendant to be provided with “Advise of Rights” form as one

factor in determining whether his fifth amendment rights were violated).

The government’s actions in this case were contrary to several provisions of the

USAM. Section 9-5.001 provides as follows:

Disclosure of exculpatory and impeachment information beyond that

which is constitutionally and legally required. Department policy

recognizes that a fair trial will often include examination of relevant

exculpatory or impeachment information that is significantly probative of

the issues before the court but that may not, on its own, result in an acquittal

or, as is often colloquially expressed, make the difference between guilt and

innocence. As a result, this policy requires disclosure by prosecutors of

information beyond that which is "material" to guilt as articulated in Kyles

v. Whitley, 514 U.S. 419 (1995), and Strickler v. Greene, 527 U.S. 263, 280-

81 (1999). ...

Additional exculpatory information that must be disclosed. A

prosecutor must disclose information that is inconsistent with any element

of any crime charged against the defendant or that establishes a recognized

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affirmative defense, regardless of whether the prosecutor believes such

information will make the difference between conviction and acquittal of

the defendant for a charged crime.

Additional impeachment information that must be disclosed. A

prosecutor must disclose information that either casts a substantial doubt

upon the accuracy of any evidence—including but not limited to witness

testimony—the prosecutor intends to rely on to prove an element of any

crime charged, or might have a significant bearing on the admissibility of

prosecution evidence. This information must be disclosed regardless of

whether it is likely to make the difference between conviction and acquittal

of the defendant for a charged crime.

Information. Unlike the requirements of Brady and its progeny, which

focus on evidence, the disclosure requirement of this section applies to

information regardless of whether the information subject to disclosure

would itself constitute admissible evidence.

USAM § 9-5.001(C) (Emphasis added). It is clear from these guidelines that the

Department of Justice expects its prosecutors to not only abide by the constitutional

imperative as interpreted by the Supreme Court (as expressly noted by the title of the first

quoted paragraph), but to go further by disclosing any evidence that cuts against the

government’s case against a defendant, whether or not such evidence is admissible.

The USAM also discusses the timing of such disclosure:

Exculpatory information. Exculpatory information must be disclosed

reasonably promptly after it is discovered. ...

Impeachment information. Impeachment information, which depends on

the prosecutor’s decision on who is or may be called as a government

witness, will typically be disclosed at a reasonable time before trial to allow

the trial to proceed efficiently. ...

USAM § 9-5.001(D)(1) and (2). Here, the exculpatory information was known by the

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government (indeed, it was created by them) nearly three full years before it was

disclosed. There is no reasonable explanation for this delay; indeed, it is reasonable to

draw the adverse conclusion that the delay was intentional, meant to restrict its usefulness

to the defense. The government’s mal-intent is likewise manifest in its decision not to call

Dr. Diaz as a trial witness, which is an obvious attempt to eliminate the impeachment

value of the newly disclosed evidence. That decision, however, does not accomplish that

objective. Dr. Diaz will now be called as a defense witness and, as discussed below, the

late disclosure of the new evidence is prejudicial to the defense. 

The manipulation by the government of critical, exculpatory and/or impeachment

evidence, in violation of clear constitutional principles and DOJ guidelines - by seasoned

prosecutors - justifies the Court in finding that recusal of the U.S. Attorney’s Office for

the District of Arizona, as argued below, is a necessary remedy for that office’s conflicts

of interest in this case. The imposition of a significant sanction is particularly appropriate

because these issues were of the government’s own making, in conscious disregard of

constitutional and internal rules counseling against these types of actions. Moreover, the

government has demonstrated a pattern of late disclosure in order to gain a strategic

advantage at trial. This is wholly improper. The Court is authorized to, and must, impose

a sanction sufficient to deter the government from engaging in this type of conduct. See

United States v. Ross, 372 F.3d 1097, 1111-12 (9th Cir. 2004) (discussing the propriety of

sanctions generally, and stating that sanctions may be necessary when prosecutors fail to

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fulfill their duty “to win fairly, staying well within the rules.”) (citation omitted).

2. The Defendant Has Been Prejudiced By the Government’s

Recent Disclosure

The government purposefully withheld essential evidence that is central to the

most critical issue in this case, along with additional evidence that supports the

Defendant’s affirmative defense. There exists no reasonable explanation as to why this

evidence was not disclosed in a timely fashion.

On Aug. 19, 2014, two AUSAs, the OIG case agent, a DOJ Civil Rights attorney

and government experts Lucian and Michael Haag traveled to Mexico to interview Dr.

Diaz, Marquez-Zarate and at least one other witness, Villareal. There were also a number

of Mexican officials present for those interviews. Despite knowing the importance of

these witnesses, the AUSAs ordered the OIG case agent out of the room. In all other

instances known to the defense, the case agent recorded investigative activity and then

generated a report. In anticipation of a claimed argument by the government that the

room was too “crowded” to allow the presence of the OIG agent, the defense would note

that the government elected to keep both AUSAs, one DOJ attorney and two expert

witnesses4 in the room even though one of the attorneys or one of the duplicative expert

witnesses could have been asked to leave. These circumstances strongly suggest a

decision to avoid any official record these interviews.

 

4 Lucien and Michael Haag are a father-son team engaged in various forensic sciences. 

In this case, it appears Michael was involved in all aspects of the work completed by 

Lucien, which meant that Lucien could have been asked to leave the reportedly crowded 

room as opposed to OIG case agent. 

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Three years after these important interviews, the government turned over only

the personal notes of the AUSA. In light of the collective experience of the AUSAs

involved, these facts should be sufficient for the Court to draw an adverse inference

regarding their intent in this matter.

The government will undoubtedly argue that there is no prejudice here because

disclosure was made prior to trial; however, the government’s disclosure of the AUSA’s

notes just weeks before the firm trial date does not cure the prejudice to the Defendant.

The late disclosure means the Defendant must now scramble to confer with his experts,

particularly his pathologist, regarding Dr. Diaz’s 2014 opinion and how it fits into the

evolution of his opinions. Defendant must now investigate Marquez-Zarate’s statements,

determine his multiple vantage points and prepare for this new testimony to be elicited.

Defendant must now seek to identify, locate and investigate Villareal to determine

whether he should be called as a trial witness. Presumably, both Marquez-Zarate and

Villareal are Mexican citizens domiciled in Mexico who likely have no status to enter or

remain in the United States; thus additional, significant (and time-consuming) steps will

have to taken should these witness’s testimony at trial be deemed necessary.

Moreover, the AUSA’s notes are hard to decipher and differ between the

handwritten and typewritten version. Their cryptic nature make their use for purposes of

cross-examination problematic, particularly because some of the notes cannot be

deciphered at all. Complicating matters further, defendant requested an interview with the

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authoring AUSA but she has declined, so the defense is unable to accurately assess their

potential impact on the case.

The government’s new disclosure also reveals additional areas of nondisclosure

by the government. These include the government’s failure to disclose the autopsy

photographs showing styluses in Elena-Rodriguez’s wounds, which, according to the

AUSA’s notes involved multiple “photographs” for multiple “wounds.” In addition, the

map referenced by Marquez-Zarate has apparently not been disclosed. Finally, as a result

of these deficiencies, the defendant is requesting that the OIG agent be made available to

the defense for interview to determine whether any other unrecorded, undocumented

interviews of key witnesses have occurred in this case.

This Court’s supervisory powers “are a means by which the federal courts fulfill

their role in the criminal justice system: ‘Judicial Supervision of the administration of

criminal justice in the federal courts implies the duty of establishing and maintaining

civilized standards of procedure and evidence.’” Ross, 372 F.3d 1097, 1107 (citing

McNabb v. United States, 318 U.S. 322, 340 (1943)). In light of the government’s

unconstitutional disclosure violations, the authoring AUSA’s refusal to submit to an

interview and the continuing harm to the Defendant, this Court should sanction the

government by: (1) precluding Dr. Diaz from providing any testimony other than that

reflected in his autopsy report and his 2014 interview; and (2) precluding the government

from eliciting any testimony from its experts regarding the timing of the fatal shot in this

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case, whether the decedent was upright or prone, and whether the decedent was alive

after he collapsed to the ground. This remedy mitigates the prejudice caused by late

disclosure and, importantly, provides a deterrence to the government’s conduct, which

created this problem in the first instance.

B. The U.S. Attorney’s Office for the District of Arizona Must Be

Recused Because At Least One of Its Attorneys is Now a Material

Trial Witness

1. Law and Department of Justice Policy

District judges have substantial latitude in deciding whether counsel must be

disqualified in a criminal case. United States v. Frega, 179 F.3d 793, 799 (9th Cir. 1999)

(internal quotation and citation omitted). One circumstances that has been held to warrant

disqualification is where, as here, the prosecutor would be a witness at trial. United States

v. Prantil, 764 F.2d 548, 552-53 (9th Cir. 1985). In this case, at least two AUSA’s (the

prosecutor who took notes at the 2014 interviews and the prosecutor who was present and

continues to represent the government in this matter) are likely to be called as trial

witnesses. As the Ninth Circuit explained:

The witness-advocate rule prohibits an attorney from appearing as both

witness and an advocate in the same litigation. This venerable rule is a

necessary corollary to the more fundamental tenet of our adversarial system

that juries are to ground their decisions on the facts of the case and not on

the integrity or credibility of the advocates. Accordingly, adherence to this

time-honored rule is more than just an ethical obligation of individual

counsel; enforcement of the rule is a matter of institutional concern

implicating the basic foundations of our system of justice.

Id. at 552-53. The Court went on to describe additional, specific policy goals served by

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the witness-advocate rule in the context of a criminal prosecution, which include: (1) the

prosecutor’s loss of objectivity; (2) the risk of improper vouching; (3) the risk of

confusing the jury; (4) the risk that public confidence in the judicial system will erode as

a result of an appearance of impropriety. Id. at 553 (citing cases). For all of these reasons,

the Court said, “[a]ttorneys must elect in which capacity they intend to proceed, either as

counsel or as a witness, and promptly withdraw from the conflicting role.” Id.

The problem created by the way this investigation was handled, however, is not

ameliorated by the mere disqualification of only those prosecutors who have been

directly assigned to this case. Rather, as addressed below, the entire U.S. Attorney’s

Office for the District of Arizona must be recused from prosecuting Agent Swartz.

Office-wide recusals may be rare, but they are nonetheless contemplated by a

Justice Department framework. United States v. Weyhrauch, 544 F.3d 969, 973-74 (9th

Cir. 2008) (citing sections of the USAM and 28 U.S.C. § 515). The USAM provides:

When United States Attorneys, or their offices, become aware of an issue

that could require a recusal in a criminal or civil matter or case as a result of

a personal interest or professional relationship with parties involved in the

matter, they must contact General Counsel’s Office .... The requirement of

recusal does not arise in every instance, but only where a conflict of interest

exists or there is an appearance of a conflict of interest or loss of

impartiality.

USAM § 3-2.170 – Recusals. This section does not specifically address the circumstances

created by the government’s conduct here, but it does speak to the Department’s rightful

concern when its prosecutors develop an actual or perceived conflict, or when their

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impartiality is compromised. The extraordinary conduct of the AUSAs implicates both of

these concerns.

2. Recusal of the Entire U.S. Attorney’s Office for the District of

Arizona is Warranted in this Case.

Although the recusal of an entire U.S. Attorney’s Office is considered an

extraordinary remedy, United States v. Bolden, 353 F.3d 870, 878 (10th Cir. 2003), it is

appropriate in this case. An experienced, longtime Assistant U.S. Attorney from the U.S.

Attorney’s Office for the District of Arizona made a purposeful decision to take steps that

resulted in the withholding of information from the defendant that violated Brady and its

progeny, that were also contrary to important provisions of the USAM. This conduct

spanned three years and has now involved at least two other AUSAs for the District of

Arizona.

The government’s decision to not otherwise record the interviews with Dr. Diaz,

Marquez-Zarate and Villareal resulted in two AUSAs and a DOJ attorney becoming

advocate-witnesses. Although the government has not attempted to prevent the AUSA

who authored the notes from being called as a witness, the federal courts have universally

condemned the practice of a government prosecutor testifying at a trial in which she is

participating; such testimony is permitted only if required by a compelling need. U.S. v.

Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975) (condemning practice of prosecutors

testifying at trial in which she is participating); see United States v. Birdman, 602 F.2d

547, 553 (3d Cir. 1979) (collecting cases). The circumstances in this case are particularly

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problematic because the AUSA who authored the notes will be asked to testify about an

incident that that was caused by the AUSA who participated in the interviews and who

remains a prosecutor in this case. The AUSA who took notes of the interview will now

be placed in the untenable position of being required to testify under oath to facts

detrimental to a significant case being prosecuted by her colleagues, her Office, and one

in which she devoted a tremendous amount of time. Pressure for her to testify favorably

to the government will be significant. In fact, her bias toward the government is already

reflected by her decision to decline an invitation to be interviewed by the defense.

III. CONCLUSION

For all the foregoing reasons, based on the extraordinary circumstances in this

case, the entire U.S. Attorney’s Office for the District of Arizona should be recused from

prosecuting this case. Additionally, as a sanction, the Court should preclude the

government from presenting testimony to support its theory that the fatal shot to the

decedent was not received while he was standing, or that the decedent was alive on the

ground.

Respectfully submitted this 11st day of September, 2017:

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 September 11, 2017, 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 Attorneys Office – Tucson, AZ

405 W. Congress, Suite 4800

Tucson, AZ 85701-4050

Serena Lara

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