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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 LIMIT SCOPE OF POTENTIAL

TESTIMONY OF DOJ ATTORNEYS

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

define the scope of any potential testimony by U.S. Department of Justice (DOJ) attorneys 

Karen Rolley and Henry Leventis, and in support states as follows:

I. Background

The defendant has served trial subpoenas on DOJ attorney Karen Rolley, 

Washington D.C., and Middle District of Tennessee Assistant U.S. Attorney Henry 

Leventis, collectively “DOJ attorneys.” In August 2014, while in Nogales, Sonora, 

Mexico, the DOJ attorneys took notes of a conversation with Mexican pathologists Dr. 

Javier Diaz Trejo and Dr. Absalon Madrigal Godinez, who performed the autopsy of the 

victim in this case, J.A.E.R. The case agent was located in the reception area adjacent to 

the office where the conversation took place, and did not take notes or generate a report. 

Accordingly, if Dr. Diaz or Dr. Madrigal testify inconsistently with the notes of the DOJ 

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attorneys, one or both of the DOJ attorneys could become relevant impeachment witnesses 

for the defense. 

By this motion the government seeks a pretrial ruling from the court limiting any 

potential testimony of the DOJ attorney to their recollection of the doctors’ statements. 

Fed.R.Civ.P. 45(c)(3)(A)(iii) provides that a court may quash or modify a subpoena if it 

finds that the subpoena “requires disclosure of privileged or other protected matter and no 

exception or waiver applies[.]” The U.S. Supreme Court has held that a federal agency's 

deliberative and decision-making process is privileged up to the point of the final 

determination. N.L.R.B. v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

II. Defense Indications It Will Exceed Scope of Proper Examination

Based on communications and court filings indicating that the defense is intending 

to introduce evidence of what it terms “the failure of the DOJ to preserve critical testimony” 

of the Mexican pathologists, the government is concerned that the defendant may attempt 

to exceed the limited scope of the DOJ attorneys’ relevant testimony, and delve into the 

DOJ attorneys’ recollections and opinions related to the investigative team’s privileged 

deliberative and decision-making process. By email dated October 17, 2017, defense 

requested:

Since it appears that Karen Rolley will be a witness for the defense, and she 

has refused an interview, I am requesting that you provide a detailed 

explanation as to why Ms. Rolley is no longer working on this particular 

prosecution. I think such evidence will be relevant to her credibility as a 

witness when she testifies at trial.

(Exhibit #1, attached). The government declined to produce the information. (Exhibit #1.)

By letter dated November 8, 2017, defense stated:

This letter is in response to yours dated November 7, 2017. With respect to 

interviews of Karen Rolley and Henry Leventis, I would like to ask them about the interview of the two Mexican pathologists that took place in August 

2014. I would like to know if their notes are accurate. I would like to know 

why the case agent was excused from this critical interview. I would also 

like to know (and I make the same request to you) whether there were other 

instances in this case where interviews took place without being recorded, 

and in the absence of the case agent. If so, who was interviewed, what was 

said, and when did these interviews occur? Were there other interviews 

where the case agent was affirmatively asked to leave by either AUSA?

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(Exhibit A, attached.)

On February 7, 2018, the defense gave notice of an “expert” in investigations to 

“testify regarding the failure of the DOJ to preserve critical testimony of the two Mexican 

pathologists in the August, 2014 meeting by either recording their statements or having an

investigator present” (exhibit #3). Finally, in multiple filings and court hearings the 

defense has sought to paint the lack of an investigator’s notes or report regarding the 

August 2014 interview as a critical failure in the investigation. This is despite the fact that 

they have detailed notes and typed memos from two (2) attorneys who will be available as 

witnesses as to the content of the doctors’ communications with them during the August 

2014 meeting, should the doctors testify in a manner inconsistent with their previous 

statements. Additionally, the government arranged for audio recorded, defense interviews 

of both Mexican pathologists in December 2017, where defense had the opportunity to 

explore with them the August 2014 meeting. 

III. The DOJ Attorneys’ Testimony Is Limited To Those Statements Of The Doctors 

That Is Inconsistent With The Doctors’ Trial Testimony. 

In the event either Mexican pathologist testifies at trial in a manner inconsistent with 

their statements as recorded in the DOJ attorneys’ notes and memos, the government agrees 

that the DOJ attorneys’ recollection of what the doctors said to them in 2014 would be 

proper impeachment. However, the scope of that testimony is limited to the portions of 

the doctors’ statements to the DOJ attorneys that are inconsistent with their trial testimony. 

Should the DOJ attorneys’ notes or memos become relevant impeachment, the government 

further stipulates to those portions of the notes and/or memos that are relevant to the 

potential impeachment of either Dr. Diaz or Dr. Madrigal, in lieu of testimony by the DOJ 

attorneys. Along those lines, the government has sent to defense counsel and submitted in 

camera to the court a copy of the DOJ attorney notes with requested redactions.

Based on the communications in exhibits #1, #2, and #3, and the other indications 

that the defendant is pursuing a theory of defense that the investigations in this case were 

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deeply flawed,1 the government anticipates that the defense will seize the opportunity to 

wander beyond the scope of impeachment if they have the opportunity to call the DOJ 

attorneys to the stand. The government seeks to have this court preclude the defendant 

from eliciting general testimony about all of the events on August 2014 (which included a 

crime scene visit, testing at the crime scene, and conversations with other witnesses and 

investigators), their opinions, the reasons they are not on the trial team, or anything else 

that is not the statements of Drs. Diaz and Madrigal. All of these other areas of inquiry

either directly infringe on the attorney work product and/or the government deliberative 

process privilege(s) or are facts that are so intertwined with these privileges the defendant 

risks eliciting privileged information if he ventures beyond the mere content of the doctors’ 

statements. There are plenty of other witnesses who observed the events of August 19, 

2014, who can testify to what they saw without implicating the attorney work product 

privilege. 

“At its core, the work-product doctrine shelters the mental processes of the attorney, 

providing a privileged area within which he can analyze and prepare his client's case.”

United States v. Nobles, 422 U.S. 225, 238 (1975). This privilege applies in both criminal 

and civil cases. Id. at 236. Queries into what the DOJ attorneys saw and did on August 

19, 2014, and their opinions and thought process that day will enter into areas protected by 

these privileges. 

“The Supreme Court has also recognized a ‘deliberative process' privilege which 

protects from discovery all “documents reflecting advisory opinions, recommendations and 

deliberations comprising part of a process by which governmental decisions and policies 

are formed.” United States v. Furrow, 100 F.Supp.2d 1170, 1174 (C.D. California 2000)

(in the context of a DOJ internal death penalty memorandum), quoting Sears Roebuck & 

Co., 421 U.S. at 150 (1975) (internal quotations removed). “By shielding such documents 

 

1 The government has filed a separate motion to preclude Mr. Rini’s testimony in doc. 305, incorporates arguments from that motion into this one.

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from discovery, the deliberative process privilege encourages forthright and candid 

discussions of ideas and, therefore, improves the decision making process.” Assembly of 

the State of Cal. v. United States Dep't of Commerce, 968 F.2d 916, 920 (9th Cir.1992). 

“Evidence regarding the basis or strategy of prosecutorial decisions or investigations is 

rarely subject to disclosure.” Miller v. Mehltretter, 478 F.Supp.2d 415, 430 (W.D. New 

York 2007). Here, the two DOJ attorneys participated in this very investigation from its 

inception, for a period of approximately three (3) years. They have knowledge, and no 

doubt opinions, regarding the DOJ’s and U.S. Attorney’s Office’s advisory opinions, 

recommendations, and deliberations concerning the investigation and charging of this case

that are privileged and should be protected by limiting the scope of the defendant’s 

examination of them during trial. 

The government requests a bright line be drawn at the statements made by Dr. 

Madrigal and Dr. Diaz. The other factual material learned by the DOJ attorneys during the 

Nogales, Sonora, Mexico crime scene visit in August 2014, including their memories of 

the set-up of the office, who was present, etc., is so interwoven with the deliberative process

that they cannot be severed. See United States v. Fernandez, 231 F.3d 1240, 1246-47 (9th

Cir. 2000) (finding the factual material in the internal DOJ death penalty memorandum at 

issue was “so interwoven with the deliberative material that it is not severable”). Here, 

where the defense is entitled to that one piece of information that only the DOJ attorneys 

possess – their recollection of the details of the conversation with Dr. Diaz – the line should 

be clearly drawn there. The defense is not entitled to examine them about their other factual 

observations of that day, as that information can be obtained from other witnesses to the 

same event, including the doctors themselves. 

For the reasons outlined below, it is highly unlikely that either DOJ attorneys’ 

testimony will be necessary, save the two paragraphs in Mr. Leventis’ memorandum that 

attributes several statements to both doctors. As to that point, as set forth below, both 

doctors recall that it would have been Dr. Diaz, the lead investigator and pathologist, not 

Dr. Madrigal, who spoke that day on behalf of the team.

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B. Dr. Diaz

Based on the December 6, 2017 interview of Dr. Diaz, the government anticipates 

that Dr. Diaz will testify that (1) either the head or spinal shot could have been the first 

shot that brought J.A.E.R. to the ground; and (2) during the August 2014 meeting he did

make the statements recorded in both DOJ attorneys’ notes. In that case, neither Ms. 

Rolley, nor Mr. Leventis have relevant testimony to offer. 

At the December 6, 2017 interview, Dr. Diaz stated in the presence of case agent 

Sarah Arrasmith that as to the August 2014 meeting he did most of the talking (not Dr. 

Madrigal) and remembers stating that he believes the shot to J.A.E.R.’s head above the ear 

was the first shot and it was a fatal wound. Dr. Diaz further explained that prior to that

August 2014 meeting he had not reviewed his autopsy report and was discussing the case 

from his memory of the autopsy two years earlier. Accordingly, if Dr. Diaz denies making 

these statements in August 2014, he can be impeached with SA Arrasmith’s statement 

regarding his adoption of the 2014 statements in her presence in 2017, negating the need 

to call either DOJ attorney as a witness.

Should Dr. Diaz testify that he did not make specific statements attributable to him 

in the DOJ attorneys’ notes and memos, that were not covered in the meeting attended by 

SA Arrasmith, the DOJ attorneys’ notes and memos become relevant as to those specific 

instances of inconsistency; but not the entire statement. 

B. Dr. Madrigal

Based on the December 8, 2017 defense interview of Dr. Madrigal, the government 

anticipates that Dr. Madrigal will testify that (1) either the head or spinal shot could have 

been the first shot that brought J.A.E.R. to the ground; and (2) he did not recall making any 

statements at the August 2014 meeting, as Dr. Diaz was the senior pathologist and would 

have been the one doing the talking. This does not conflict with Ms. Rolley’s notes, since 

she attributes no statements to Dr. Madrigal. It would conflict with Mr. Leventis’ notes 

and memorandum, which attribute several of the statements about the first shot and damage 

to J.A.E.R.’s body to “both” doctors or “DD and DM.” 

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During the 2017 defense interview, Dr. Madrigal was asked questions about this 

issue. At pages 39-46, 128-142, and 173-180, Dr. Madrigal described the August 2014 

meeting at the PGR’s offices in Nogales, Sonora, Mexico, as taking place in the office of 

the deputy and the adjoining reception area. He explained the office was a four by five 

meter space with no conference table, with people both standing and sitting because there 

were not enough seats for everyone. People were meeting inside the deputy’s office, and 

that others, including Dr. Madrigal, could not fit in the office and were just outside of it, in 

the reception area. Dr. Madrigal could not see the people in the office, which apparently 

included the DOJ attorneys and Dr. Diaz. When asked about the statements in the attorney 

notes attributed to both doctors, Dr. Madrigal said that perhaps Dr. Diaz made the 

statements, since as the senior investigator/doctor Dr. Diaz would have been the one to 

speak for them.

When Dr. Madrigal testifies that he did not make the statements in August 2014, it 

is possible the defense may wish to impeach him by calling Mr. Leventis to testify to that 

portion of his notes and memo that reflect that “DD and DM” or “both doctors” “believe 

the bullet wound to the head was the first wound because all of the other wounds have a 

rear to forward, right to left trajectory. . . believe the first bullet that struck Elena caused 

his death. . . believe that the shot to the head which killed Elena caused him to lose his 

balance. They believe the scrapes to Elena’s hands and face were the result of being 

propelled forward by the impact to the cranial area.” (Leventis memo, p. 2, submitted in 

camera.) As to Ms. Rolley, she has no impeaching testimony to offer regarding Dr. 

Madrigal.

IV. Conclusion

The only relevant and admissible testimony the DOJ attorneys may offer in this 

matter is what they heard Dr. Diaz and Dr. Madrigal say, in the event either doctor denies 

making the 2014 statements recorded by the DOJ attorneys.

The defendant should be precluded from calling the DOJ attorneys as fact witnesses 

to tell the jury what they observed on August 19, 2014; as there are other witnesses to these 

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events who can testify without violating the attorney work product and/or government 

deliberative privilege(s). The defendant should also be precluded from asking the DOJ 

attorneys any questions intended to elicit their opinions or impressions, which are protected 

by the work product and/or deliberative process privilege(s). 

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

the scope of Ms. Rolley’s and Mr. Leventis’ testimony solely to rebuttal of any inconsistent 

statements provided by Drs. Diaz and Madrigal during their testimony at trial. 

Respectfully submitted this 16th day of February, 2018.

ELIZABETH A. STRANGE

First Assistant United States Attorney District of Arizona

s/Mary Sue Feldmeier

MARY SUE FELDMEIER

Assistant U.S. Attorney

Copy of the foregoing served electronically or by other means this 16th day of February, 2018, to:

Sean C. Chapman, Esq.

Jim Calle, Esq.

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