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JOHN S. LEONARDO

United States Attorney

District of Arizona

Wallace.kleindienst@usdoj.gov

AZ State Bar No. 012506

Mary Sue Feldmeier

AZ State Bar No. 030266

Assistant U.S. Attorneys

United States Courthouse

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

Telephone: 520-620-7578

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-15-1723-TUC-RCC(DTF)

UNOPPOSED GOVERNMENT’S 

MOTION FOR A 

PROTECTIVE ORDER 

Now comes the United States of America, by and through its undersigned counsel, 

and hereby respectfully moves this Honorable Court, pursuant to Federal Rules of 

Criminal Procedure, Rules 6(e) and 16(d)(1), for a protective order encompassing the 

government’s disclosure to the defendant. As grounds in support thereof we state as 

follows.

1. On September 28, 2015, the defendant was indicted by a federal grand jury 

in Tucson, Arizona, on the charge of second degree murder arising out of the shooting 

death of J. A., a minor, on October 10, 2012.

2. Prior to the indictment, Araceli Rodriguez, the mother of J. A., filed a Civil 

Complaint in the U.S. District Court on July 29, 2014, against John Does 1-10, Agents of 

U.S. Border Patrol, and John Does 11-20, Officers of U.S. Customs and Border
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Protection, seeking damages for the murder of her son. See, Araceli Rodriguez v. John 

Does 1-10, Case No. 14-cv-02251-TUC-RCC. Lonnie Ray Swartz, the defendant in the 

criminal case, was subsequently identified as the Border Patrol Agent responsible for the 

death of J.A. and the name of the civil Complaint was changed to Araceli Rodriguez v. 

Lonnie Swartz.

3. Sean Chapman, Esq., represents Lonnie Ray Swartz in both cases.

4. The government is required to disclose to the defendant in the criminal case 

witness testimony before the grand jury, other witness statements, documents, 

photographs, papers, books, and tangible objects, whether obtained by grand jury 

subpoena or otherwise, reports of scientific examinations and tests, the identification of 

potential trial expert witnesses, their qualifications, and a written summary of their 

testimony, to the extent said material i) falls within Federal Rules of Criminal Procedure 

Rules 6, 16(a), and 26.2, and/or the Jencks Act, ii) constitutes Brady exculpatory 

evidence and/or Giglio witness impeachment evidence, iii) and/or disclosure is otherwise 

required by the Constitution. 

5. The government’s disclosure in criminal cases is normally not a matter of 

public record until if and when it is admitted at a pretrial court hearing and/or trial. 

Additionally, grand jury material is subject to very strict limitations on disclosure 

pursuant to Federal Rules of Criminal Procedure, Rule 6(e), in order to protect the 

integrity and secrecy of the grand jury process.

6. The government’s disclosure will surpass 5,000 pages of documents. It will 

include among other items: i) statements and/or reports of interviews and grand jury 

testimony of the Border Patrol Agents and Nogales Police Department Officers who were 

present during the shooting death of J.A.; ii) reports of interviews of J.A.’s family 

members and friends; iii) numerous documents including records received through grand 

jury subpoenas; iv) statements and grand jury testimony of many other witnesses and 

individuals; v) numerous crime scene photographs including several graphic photographs 

of J.A. after he was shot to death; vi) pre-autopsy photographs of an unclothed J.A., 
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depicting his bullet wounds; vii) numerous government agent reports of investigation; 

and xiii) employment, personal, military, and confidential records pertaining to the 

defendant. It will also include at least two video recordings. The government’s 

disclosure, in short, will lay out in full detail the evidence surrounding the shooting death 

of J.A. It will also disclose confidential and personal information concerning potential 

witnesses that may be protected by the Privacy Act.

7. Disclosure of this evidence to Sean Chapman, however, presents a dilemma 

with serious potential adverse consequences to the criminal case. Receipt of the above 

referenced evidence from the government in the criminal case will subject Mr. Chapman 

to subsequent requests for disclosure of this evidence by the plaintiff in the civil case,

Araceli Rodriguez v. Lonnie Swartz. Mr. Chapman is in the unique position of defending 

Mr. Swartz in two different forums involving similar claims of responsibility based on 

identical facts. 

8. The Federal Rules of Civil Procedure which govern the civil case affords 

the litigants to make broad requests for discovery on opposing parties – requests that 

often go beyond what is permitted in federal criminal cases. See, for instance, Federal 

Rules of Civil Procedure, Rule 26 (required disclosure); Rule 34 (production of 

documents). 

9. The Federal Rules of Civil Procedure do not restrict the dissemination of 

testimony, documents, tangible objects, etc. which come into possession of litigants 

during pretrial discovery. Mr. Chapman would seemingly be obligated to produce all of 

the government’s disclosure in the criminal case to the plaintiff in the civil case or face 

sanctions. Thus, the government’s criminal disclosure – the entirety of its case against 

Mr. Swartz – would likely enter the public domain and be subject to media dissemination

in Tucson and around the Country. 

10. This public disclosure would violate the federal grand jury secrecy 

requirements and result in an unprecedented examination of the grand jury’s work 

leading to the indictment. 
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11. Public disclosure of this evidence moreover would substantially prejudice 

both the government’s and the defendant’s right to a fair and unbiased jury in the 

criminal trial – jurors who cannot help but be exposed pretrial to the facts, testimony, 

photographs, etc. of the case published in the media. This is an explosive case which has 

attracted national media attention since J.A. was shot to death. It is one of the few 

prosecutions of a U.S. Border Patrol Agent for a cross-Border shooting of a Mexican 

citizen. It has spurred a national debate on the use of force in these situations and when 

the federal government should hold Border Patrol Agents accountable to the criminal 

justice system. Both parties in this case want a jury to decide the issue of guilt or 

innocence free of prior contamination by media stories and opinions based on pretrial 

disclosure of the evidence.

12. Federal Rules of Criminal Procedure, Rule 6(e) expressly limits the 

instances when grand jury material may be disclosed by the government. Rule 6(e) also

implicitly vests the Court with the supervisory powers to limit the disclosure of grand 

jury material to insure the integrity of the grand jury process. See Douglas Oil Co. of Cal.

V. Petro Stops Northwest, 441 U.S. 211, 218-221 (1979). Rule 16(d) expressly vests the 

Court with the power to “at any time . . . for good cause, deny, restrict, or defer discovery 

or inspection (of discoverable materials), or grant other appropriate relief.” (emphasis

added). The Court may issue protective orders pursuant to that power. See United States

v. Feeney, 641 F. 2d 821, 824 (10th Cir. 1981) (protective order can issue to preclude 

disclosure of allegedly privileged material in a criminal case); United States v. Barbeito, 

2009 WL 3645063 (S.D.W.Va. 2009) (“appropriate... to employ Rule 16(d) protective 

orders to curtail the public dissemination of sensitive discovery materials that my 

endanger witnesses or informants” and “the due administration of justice.”)

13. For the above and foregoing reasons, the government respectfully moves 

this Honorable Court to enter a protective order in the criminal case. This order would 

bar Mr. Chapman and Mr. Swartz from disseminating any government disclosure to any 

third party unless disclosure is reasonably necessary to defend against the charge in the 
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indictment. Both parties would have the right to seek a modification of the protective 

order.

14. Mr. Chapman, on his own behalf and that of Mr. Swartz, does not oppose 

this motion for a protective order as indicated below.

WHEREFORE for the above and foregoing reasons, the United States of America 

respectfully moves this Honorable Court to grant this motion.

Respectfully submitted on this 23rd day of October, 2013.

JOHN S. LEONARDO

United States Attorney

District of Arizona

s/Wallace H. Kleindienst

Wallace H. Kleindienst

Assistant U.S. Attorney

SEEN AND AGREED

s/Sean Chapman

Sean Chapman