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ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

WALLACE H. KLEINDIENST

MARY SUE FELDMEIER

Assistant U.S. Attorneys

United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7300

wallace.kleindienst@usdoj.gov

mary.sue.feldmeier@usdoj.gov 

Attorneys for Plaintiff

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

United States of America,

 Plaintiff, 

 vs. 

Lonnie Ray Swartz,

 Defendant.

CR-15-01723-TUC-RCC (DTF)

GOVERNMENT’S 

MOTION IN LIMINE TO PRECLUDE 

ALLEGED RUST EVIDENCE

The United States of America, by and through its undersigned attorneys, 

respectfully moves in limine to preclude alleged rust evidence, and in support states as 

follows:

A. Facts and Background:

The defendant has notified the government of its intent to introduce testimony 

regarding alleged rust on the shoes of the victim in this case, J.A.E.R. The defense intends 

to call two Border Patrol agents who are not witnesses to the events alleged in the 

indictment to testify about general smuggling tactics and activities that take place in the 

area where the crime occurred, and to testify that they look for rust marks on suspects to 

help determine if the suspects climbed over the international boundary fence. The notice 

of witnesses, below, does not indicate whether the defendant intends to show J.A.E.R.’s 

clothing or shoes to these witnesses:

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1. BPA Justin Sanders - Nogales AZ. Agent Sanders is familiar with the 

smuggling tactics and activities that take place west of the DeConcini Port of 

Entry through the incident scene in our case. Sanders also was on the Nogales 

Bike Unit whose members looked for rust marks on suspects to help 

determine if they had illegally crossed the border by climbing over the border 

fence.

2. BPA Travis Bradshaw – Nogales AZ. Agent Bradshaw was a member 

of the Nogales Bike Unit and he has information regarding the various types 

of smuggling that takes place west of the DeConcini Port of Entry in addition 

to also being an agent who looked for rust marks on suspects to help 

determine if they had climbed the border fence to avoid going through the 

ports of entry.

The defendant also intends to introduce the testimony of his investigator, who 

rubbed test shoes on the international boundary fence and will apparently testify that the 

marks he produced on the test shoes match those on J.A.E.R.’s shoes. Defense has not 

requested J.A.E.R.’s shoes for testing. Nor has he indicated how he intends to prove that 

the marks produced by his investigator are, in fact, the same as any markings on J.A.E.R.’s 

shoes.

B. Law and Argument

Whether J.A.E.R.’s shoes have rust on them is irrelevant to the issues in this case, 

and should be precluded. F. R. Evid. 401. Any probative value of this evidence is 

outweighed by a danger of “unfair prejudice, confusing the issues, misleading the jury . . . 

wasting time, or needlessly presenting cumulative evidence.” F. R. Evid. 403. The 

testimony of Agents Sanders and Bradshaw and the defense investigator with regard to the 

“rust” test should be excluded.

1. F. R. Evid. 401 and 403 (Relevance)

Evidence is only relevant if “(a) it has any tendency to make a fact more or less 

probable than it would be without the evidence; and (b) the fact is of consequence in 

determining the action.” F. R. Evid. 401 (emphasis added). “The court may exclude 

relevant evidence if its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, misleading the jury, undue 

delay, wasting time, or needlessly presenting cumulative evidence.” F. R. Evid. 403

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Here, defendant seeks to introduce evidence that J.A.E.R. has “rust” marks on his 

shoes, merely as an attempt to demonstrate that the victim was a drug smuggler and that he 

had illegally entered the United States. This is a murder case; not a drug smuggling case. 

Whether or not J.A.E.R. is a drug smuggler or whether he illegally entered the United States

is not relevant to the charges. There is no claim that the defendant knew of any past 

activities of the victim. The probative value of such evidence is also substantially 

outweighed by the danger of unfair prejudice to the United States. The only fact of 

consequence in this action is whether the defendant reasonably believed that deadly force 

was “necessary to prevent death or great bodily harm.” 9thCir. Crim. Jury Instr. 6.8. 

The only thing the “rust” testimony contributes to this case is (1) to bolster the 

testimony of A.O. and the CHS regarding J.A.E.R.’s alleged presence in the United States 

before the shooting; and (2) portray J.A.E.R. as a drug smuggler to the jury. Bolstering 

another witnesses’ testimony on a collateral matter (whether J.A.E.R. is a smuggler) is the 

very definition of irrelevant. Whether J.A.E.R. is a drug smuggler is not a fact that is of 

consequence to the jury in determining the outcome in this case. Even if marginally 

relevant, it should be excluded because it will cause unfair prejudice, confuse the issues, 

mislead the jury, and is needlessly cumulative of the testimony of A.O. and CHS.

“A district court is accorded a wide discretion in determining the admissibility of 

evidence under the Federal Rules. Assessing the probative value of [the proffered 

evidence], and weighing any factors counseling against admissibility is a matter first for 

the district court’s sound judgment under Rules 401 and 403.” Sprint/United Mgmt. Co. v. 

Mendelsohn, 552 U.S. 379, 384 (2008) (quoting United States v. Abel, 469 U.S. 45, 54 

(1984). “Although the definition of “relevant evidence” given in Federal Rule of Evidence 

401 is broad, it does have limits.” United States v. Hollister, 746 F.2d 420, 422 (8th Cir. 

1984). Hollister, a bank robbery defendant, raised a duress defense which required him to 

show “a reasonable or well-founded fear of immediate or imminent death or serious bodily 

harm required the defendant to commit the criminal act, and that the defendant could not 

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avoid the danger.” Id. at 422-23. Similar to defendant Swartz’s self-defense claim,

1

Hollister’s duress defense rested on what was in Hollister’s mind – not facts known to 

others. Hollister claimed his deceased co-defendant Miller held a gun to his head and 

forced him to commit the robbery at issue. He sought to introduce additional evidence that 

Miller had committed previous bank robberies with a different accomplice named 

Schumacher to bolster other evidence of his duress defense. Although Hollister had not 

known the fact about Miller’s prior robberies, he argued that it should have been admitted 

because it “tend[ed] to make more probable the existence of the claim that Schumacher 

had backed out and thus Miller was motivated to coerce Hollister into robbing a bank more 

likely than not.” Id. at 422. The Eighth Circuit found that the district court properly 

excluded this evidence because “[e]vidence showing Roger Miller’s propensity to commit 

bank robberies would not have been relevant unless it contributed to Hollister’s reasonable 

fear of death or serious bodily harm.” Id. at 423. Similarly here, the defendant did not see 

J.A.E.R. climb the international boundary fence or smuggle drugs into the United States, 

much less know what markings were on his shoes. Whether J.A.E.R. had done any of these 

things is not relevant unless it contributed to defendant Swartz’s belief that shooting 

J.A.E.R. was “necessary to prevent death or great bodily harm.” Since defendant Swartz 

did not know these alleged facts about J.A.E.R., and in fact claims he fired his pistol 

because of rocks (not drug smuggling), the introduction of “rust” evidence to make it more 

probable than not that J.A.E.R. was smuggling drugs that night is not relevant to the facts 

at issue, and just serves to confuse and prejudice the jury.

Here, the rust evidence is simply offered to disparage the victim. Because it is 

uncontested that the victim was the first aggressor in this case, evidence of the victim’s 

character has little if any probative value. In People of Territory of Guam v. Tedtaotao, 

 

1 The 9th Circuit Criminal Jury Instruction on Self-Defense, 6.8, reads in relevant 

part “[f]orce likely to cause death or great bodily harm is justified in self-defense only if a 

person reasonably believes that such force is necessary to prevent death or great bodily 

harm.” (emphasis added.)

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the Ninth Circuit Court of Appeals found that where it was uncontested that the victim was 

the initial aggressor, evidence of the victim’s character was properly excluded because it 

would have been cumulative and its probative value was substantially outweighed by the 

dangers of unfair prejudice, confusion of the issue, and misleading of the jury. 896 F.2d 

371, 373 (9th Cir. 1990). The same is true in this case. The government does not dispute 

that the victim was involved in throwing rocks over the fence prior to the shooting. 

Evidence that he is a drug smuggler not only fails to show that he acted in conformity with 

the conduct in this case, but is also outweighed by unfair prejudice, confusing the issues, 

and misleading the jury. Tainting the jury with the idea that a “good” border patrol agent 

shot a “bad” drug dealer introduces emotion and prejudices the jury against the victim in 

this case – all over alleged conduct that the defendant had no knowledge of and thus could 

not have affected his decision to shoot. It is confusing and misleading, implicitly asking 

the jury to “find” that the victim was a drug smuggler, when in fact the issue being 

adjudicated in this case has nothing to do with whether he was or not.

The defendant’s notice indicates that not only will Agents Sanders and Bradshaw 

testify to checking suspected aliens for rust to see if they climbed the fence, but also to 

smuggling methods that are already being covered by the defendant’s drug expert. Their 

rust testimony should be excluded for the reasons set forth above. Their testimony 

regarding smuggling methods is cumulative and should be excluded. 

Wherefore, the United States of America respectfully requests that this Court 

exclude the testimony of the defense investigator relating to “rust” evidence, and the 

testimony of Agents Sanders and Bradshaw in toto. 

Respectfully submitted this 5th day of March, 2018.

ELIZABETH A. STRANGE

First Assistant United States Attorney

District of Arizona

s/ Mary Sue Feldmeier

MARY SUE FELDMEIER

Assistant U.S. Attorney

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Copy of the foregoing served electronically or by

other means this 5th day of March, 2018, to:

Sean C. Chapman, Esq.

Jim Calle, Esq.

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