1

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

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.

)

)

)

)

)

)

)

)

)

)

CR 15-1723 TUC RCC (DTF)

MOTION IN LIMINE RE: 

“USE OF FORCE” TESTIMONY

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., and pursuant to Rules 104, 

701, 702 and 704 of the Federal Rules of Evidence, hereby moves to preclude the 

Government’s “use of force” expert from giving his opinion on the ultimate legal issues

in this case, and further moves to preclude the government from eliciting “use of force” 

testimony from law enforcement agents who are not qualified as experts. This motion is 

made for the reasons set forth below.

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 1 of 6
2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS RELEVANT TO THE RESOLUTION OF THIS MOTION

Agent Swartz’s use of deadly force will be the primary focus of the 

Government’s case-in-chief. The Government has noticed its intent to call Alan Foraker 

as a “use of force” expert, to establish that Agent Swartz’s discharge of his firearm was 

contrary to the Border Patrol’s training and policies regarding use of deadly force. A 

summary of Mr. Foraker’s opinions was transmitted to undersigned counsel by letter

dated February 9, 2015. The Government’s letter states that Mr. Foraker may testify to 

the following opinions:

1) Agents are taught to eliminate the threat when using deadly force;

2) Mr. Swartz’s use of deadly force was neither reasonable nor necessary;

3) Swartz was not legally justified in using deadly force;

4) Jeopardy did not exist because the decedent did not have the ability, the 

opportunity and the intent to inflict serious bodily injury or death upon Swartz 

or anyone else;

5) Swartz should have ascertained whether anyone on or adjacent to West 

International Street was in jeopardy at the time he fired his pistol and his 

failure to do so was not reasonable;

6) Swartz should have made use of available cover, and his approach to the 

Border Fence was neither reasonable nor necessary; and

7) Swartz was not legally justified in firing his pistol based on information that a 

police canine may have been hit because deadly force cannot be used to 

protect a police canine.

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 2 of 6
3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

In addition, the Government will elicit the testimony of numerous non-expert law 

enforcement agents who were percipient or ancillary witnesses to the events at issue. 

This motion does not seek to preclude all use of force testimony but, rather, to confine 

such testimony to the parameters of the Rules of Evidence.

II. LAW

A. Rule 704(b) Precludes an Expert from Testifying to Legal Conclusions

Generally, expert testimony may be admissible if it is helpful to the trier of fact. 

See Fed.R.Evid. 702. Assuming for purposes of this motion that Mr. Foraker is 

qualified as a “use of force” expert, he may offer testimony generally as to policies, 

procedures and appropriate uses of force in light of those policies and procedures. Mr. 

Foraker may not, however, “give an opinion as to h[is] legal conclusion, i.e., an opinion 

on an ultimate issue of law.” Mukhtar v. California State University, Hayward, 299 

F.3d 1053, 1066 (9th Cir. 2002) (internal citations omitted), overruled on other grounds 

by Estate of Barabin v. Asten Johnson, Inc., 740 F.3d 457 (9th Cir. 2014); see also,

United States v. Duncan, 42 F.3d 97, 101 (2d Cir. 1994) (“When an expert undertakes 

to tell the jury what result to reach, this does not aid the jury in making a decision, but 

rather attempts to substitute the expert’s judgment for the jury’s.”).

In this case, the jury must determine whether Agent Swartz’s use of deadly force 

was reasonable or excessive. Mr. Foraker’s proposed testimony impermissibly 

encroaches into these areas with respect to each of his opinions except for #1 (to which 

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 3 of 6
4

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

the defense has no objection). Opinion #2 is that Agent Swartz’s use of deadly force 

“was neither reasonable nor necessary.” Opinions #3 and #7 state that Agent Swartz 

“was not legally justified.” Opinion #4 proposes that Mr. Foraker attest to facts that 

constitute “jeopardy,” and further improperly opines as to the decedent’s opportunity 

and intent. Similarly, Opinion #6 relates to “jeopardy,” and also comments directly on 

the reasonableness of Agent Swartz’s actions. 

The Ninth Circuit clearly precludes expert testimony for the purpose proposed 

here. The Court explained:

When an expert undertakes to tell the jury what result to reach, this 

does not aid the jury in making a decision, but rather attempts to 

substitute the expert’s judgment for the jury’s. When this occurs, 

the expert acts outside of his limited role of providing the 

groundwork in the form of an opinion to enable the jury to make 

its own informed determination. In evaluating the admissibility of 

expert testimony, this Court requires the exclusion of testimony 

which states a legal conclusion.

United States v. Duncan, 42 F.3d at 100. Mr. Foraker’s proposed opinion testimony 

constitutes legal conclusions that are rightly the province of the jury to decide. As such, 

they are precluded from admission at trial pursuant to Rule 704(b).

B. Rule 701 Precludes Non-Expert Law Enforcement Witnesses From Providing 

Opinion Testimony on Swartz’s Use of Force 

Evidence Rule 701 allows lay witnesses opinion testimony that is: a) rationally 

based on the witness’s perception; b) helpful to clearly understanding the witness’s 

testimony or determining a fact in issue; and c) not based on specialized knowledge (i.e. 

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 4 of 6
5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

expert testimony). Accordingly, law enforcement witnesses who were involved in the 

incident may testify to their observations, but they may not offer opinion as to whether 

Agent Swartz’s use of force complied with Border Patrol training or policy, nor may 

they opine as to the type of legal conclusion that is described above. 

For example, the government may attempt to illicit testimony from individual 

agents at the scene that this Border Patrol use of force policy dictated that they seek 

cover when being rocked, or that the use of deadly force would not be appropriate in 

response to being rocked. While it clearly permissible for agents to testify as to what 

actions they took, testimony regarding their interpretation of use of force policy is 

inappropriate and should be precluded by Rule 704.

III. CONCLUSION

For all the foregoing reasons, this Court should enter an order precluding the 

Government from eliciting “use of force” testimony from law enforcement agents who 

are not qualified as experts to opine on such matters.

Respectfully submitted this 31st day of May, 2017.

LAW OFFICES OF SEAN CHAPMAN, P.C.

BY: /s/ Sean Chapman

Sean Chapman

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 5 of 6
6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Electronically mailed this 31st day of May 2017 to:

United States District Court

Wallace Kleindeinst

Mary Sue Feldmeier

United States Attorney’s Office

Serena Lara

Case 4:15-cr-01723-RCC-DTF Document 152 Filed 05/31/17 Page 6 of 6