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ELIZABETH A. STRANGE

Acting United States Attorney District of Arizona

Wallace H. Kleindienst

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)

GOVERNMENT’S REPLY TO 

DEFENDANT’S RESPONSE TO 

GOVERNMENT’S MOTION IN LIMINE RE:

DRUG EXPERT AND IMAGES 

CONCERNING UNRELATED ROCKING 

AND DRUG TRAFFICKING ACTIVITY

COMES NOW the United States of America, by and through its undersigned 

counsel, and hereby respectfully replies to Defendant’s Response to the Government’s 

Motion in Limine Re: Drug Expert and Images Concerning Unrelated Rocking and Drug 

Trafficking Activity. As grounds in support thereof, we state as follows.

1. The defense predicates its argument that the evidence subject to the motion 

in limine should be admitted simply because he is entitled to “present a complete defense.”

(Def.’s Response, pg.6.) Certainly, the defendant is entitled to a defense. But, that right is

not an absolute right to present any and all evidence which he believes is helpful to his 

case. There are limitations. For instance, evidence to be admissible must be relevant which 

is defined by Federal Rules of Evidence, Rule 401, as evidence which has “any tendency 

to make a fact more or less probable than it would be without the evidence” and “the fact 
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is of consequence in determining the action.” Likewise, this Court is vested with the 

discretion pursuant to Federal Rules of Evidence, Rule 403, to exclude even relevant 

evidence at trial if “its probative value is substantially outweighed by a danger of one or 

more of the following: unfair prejudice, confusing the issues, [and] misleading the jury . . 

.”

2. Both parties agree that the ultimate issue to be litigated in the trial is whether 

the defendant actions were reasonabe and necessary under the circumstances in shooting 

J.A.E.R. who at that moment presented a threat of imminent serious bodily injury or death 

to either the defendant or other individuals by throwing rocks over the International Border 

Fence. The defendant’s state of mind at that moment as to whether those rocks constituted 

such a threat is certainly relevant. The defendant’s knowledge that rocks can constitute 

this threat based on what he had previously seen or heard as a Border Patrol Agent is 

relevant to the jury’s consideration of the ultimate issue. But what the defendant proposes 

to introduce at trial crosses over the line of relevant evidence to evidence patently 

calculated to inflame the jury. 

3. Drug trafficking (with its attendant gristly violence often glamorized in TV 

and film) across the International Border is a red hot button issue which is firmly embedded 

in the national consciousness and political conversation. It is the defendant’s calculated 

hope, by the evidence he seeks to admit, that the jurors will superimpose their opinions 

about the evils of “violent” drug traffickers onto the victim and disregard the evidence of 

exactly what threat J.A.E.R. posed at the moment. The defendant asserts that this evidence 

merely places “this shooting event . . . into context for the jury” (Def’s Response, Pg. 2). 

This is simply disingenuous. The violence suggested by expert witness Pete Hermansen’s 

proposed testimony and graphically depicted in the videos goes well beyond what is 

necessary to convey to the jury that rocks can be very dangerous under the right 

circumstances. Virtually every one knows this fact from their life experiences. The jurors 

do not need the violence projected by these unrelated events portrayed in the videos and

photographs to evaluate whether the defendant posed a dangerous threat by these rocks. It 
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is not necessary and it prejudices the government’s right to a jury that should decide the 

case on the facts and not on emotion and prejudice.

4. The government will not dispute at trial, that J.A.E.R was one of apparently 

three individuals who, based on the video, were throwing rocks over the Fence. Likewise, 

the government will not dispute that this conduct was apparently an effort to assist the two 

subjects on top of the Fence who were trying to successfully drop down onto the Mexican 

side of the Border after smuggling two bundles of marijuana into the United States.

Whether the victim was employed by and acting on behalf of a drug cartel, as the defense 

expert wants to suggest, is simply unknown to either party. But it does not matter. This is 

not a drug trafficking case – there are no drug trafficking charges in the Indictment to be 

litigated. This is simply a case about whether J.A.E.R. presented a threat of serious bodily 

injury or death by throwing rocks into the United States regardless of his motives. The 

defendant is free to testify that based on his prior knowledge about the dangers of rockings 

along the Fence that he acted in the manner that he did. The inflammatory videos do not 

add any more relevance to that testimony and are, to the contrary, unduly prejudicial to the 

government’s case. 

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

respectfully requests that this Honorable Court to grant the Motion in Limine.

 Respectfully submitted on this 28th day of June, 2017.

ELIZABETH A. STRANGE

Acting United States Attorney District of Arizona

s/Wallace H. Kleindienst

WALLACE H. KLEINDIENST

Assistant U.S. Attorney

Copy of the foregoing served electronically or by

other means on this 28th day of June 2017, to:

Sean C. Chapman, Esq. Jim Calle, Esq.