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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 Swartz

Sean@seanchapmanlaw.com

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

UNITED STATES OF AMERICA,

Plaintiff,

v.

Lonnie Ray Swartz,

Defendant.

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 CR15-1723 TUC RCC(DTF)

MOTION TO ENFORCE SUBPOENA 

FOR EXPERT WITNESS 

PETER A. HERMANSEN

It is expected that excludable delay under Title 18, United States Code, 

§3161(h)(1)(F) will occur as a result of this motion or an order based thereon. 

The Defendant, pursuant Rule 17 of the Federal Rules of Criminal Procedure and 

Art. 6 and 14 of the U.S. Constitution, hereby moves to enforce the subpoena 

compelling the testimony of Peter A. Hermansen in the trial of this matter.

This motion is supported by the following Memorandum of Points and 

Authorities.
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MEMORANDUM OF POINTS AND AUTHORITIES

I. QUESTION PRESENTED

The resolution of this motion requires the Court to determine whether the 

arbitrary enforcement of an agency regulation to prevent otherwise admissible 

testimony at trial violates the separation of powers doctrine and the due process rights of 

the accused.

II. FACTS

Peter Hermansen is a 20+ year veteran of the Border Patrol. His current position 

is Patrol Agent In Charge (“PAIC”) of the Tucson Sector Intelligence Unit. Agent 

Hermansen began his Border Patrol career in 1996, transferred to Tucson in 2000, then 

El Paso in 2002, and in 2004 he became an Assistant Chief in Washington, D.C. There, 

Agent Hermansen served as the Deputy Director of the Use of Police Division, 

promoting to Director in 2006. In this role, Agent Hermansen was personally and 

substantially involved in the development of the Border Patrol’s Use of Force Policy 

Handbook, which was first published in 2010. The Handbook was revised in 2011 and 

in effect during the time frame of the shooting incident for which Agent Swartz is 

indicted.

This Court will recall that on August 23, 2016, Agent Hermansen testified on 

behalf of Agent Swartz in connection with his Motion to Suppress Statements, which 

the Court subsequently granted. (Doc. 53, 97.) The government did not object to Agent 
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Hermansen’s appearance on behalf of the defendant, nor did the government object to 

his qualifications to offer testimony on the subject of the Border Patrol’s Use of Force 

policy. Similarly, the government did not assert a privilege with respect to Agent 

Hermansen’s testimony.

Pursuant to the Rule 16(b)(1)(C) of the Federal Rules of Criminal Procedure, on 

February 13, 2017, undersigned counsel disclosed Agent Hermansen as an expert 

witness at the trial of this matter, together with a summary of his opinions. (attached 

hereto as Exhibit A.) Counsel also obtained a subpoena to compel Agent Hermansen’s 

testimony at trial. (attached hereto as Exhibit B.) 

Agent Hermansen has no personal or official involvement with the investigation 

of Agent Swartz. His testimony is relevant to explain the agency’s policy regarding how 

an agent is trained to react in the face of deadly force and when it is appropriate for an 

agent to discharge his firearm, which will assist the jury’s determination of whether 

Agent Swartz’s actions were consistent with that policy. Fed.R.Evid. 702, 703, 704.

Action consistent with the Use of Force policy is vital to Agent Swartz’s defense 

because it directly controverts the notion that he acted “with malice aforethought,” an 

element of second degree murder, or that any of his actions, such as approaching the 

international border fence instead of seeking cover, did not comply with policy. Such 

testimony will rebut the testimony of Alan Foraker, the government’s use of force 

expert.
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At some point, the US Attorney’s Office notified the agency that the defense 

intended to call Mr. Hermansen, and thereafter provided defense counsel with the 

agency’s response. (attached hereto as Exhibit C.) According to the Associate Chief 

Counsel Caroline Blessey, 5 C.F.R. §2635.805 prohibits the Department of Homeland 

Security from authorizing Agent Hermansen to testify as an expert witness on behalf of 

the defense, unless authorization is received from a designated DHS ethics official. In 

Blessey’s letter, she states that such authorization was not given, and that “it is the 

position of the Tucson Sector that PAIC Hermansen should not testify as a defense 

expert in this matter.” (Exhibit C.)

Following receipt of Blessey’s letter, undersigned counsel requested disclosure of 

email communications between agency counsel and the prosecutors in order to 

determine whether the C.F.R. regulations were being used improperly, not to guide 

ethical considerations, but to gain a strategic advantage at trial by effectively precluding

Hermansen as an expert for the defense. Undersigned counsel was informed that such 

documents would not be provided because they are protected by the “work product 

privilege.” (attached hereto as Exhibit D.) 

Shortly thereafter counsel received an email from the Chief Counsel Eric 

McNeilus stating that DHS is “in the process of sending your request up the chain of 

command to DC.” (attached hereto as Exhibit E.) This contradiction of the earlier, 

unequivocal statement by Ms. Blessey lends support to the notion that the government is 
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simply attempting to prevent the defense from calling Agent Hermansen as an expert 

witness at trial.

Regardless of their motivation, the government’s reliance on 5 C.F.R. §2635.805 

to prevent otherwise relevant and admissible testimony from being heard, is wholly 

unlawful. This arbitrary action usurps from this Court its rightful authority to control the 

admission of evidence in a judicial proceeding, in violation of the separation of powers 

doctrine, as well as Agent Swartz’s constitutional rights to due process and compulsory 

process.1

Further, the intent of this regulation is to ensure ethical conduct by government 

employees, which is not an issue here. It is not intended to be used to subvert the ability 

of a criminal defendant to present a defense. 

III. LAW 

A. DHS Ethical Regulation 5 C.F.R. §2635.805 Neither Confers A Privilege Nor 

Authorizes the Government to Determine What Evidence May be Introduced in

a Judicial Proceeding

1. History of the Regulation’s Adoption as a Housekeeping Measure

 

1 Yesterday evening the prosecution disclosed that Agent Hermansen has given notice of his intent to leave his present post 

with the DHS for a position with the Department of Defense. There is no indication when Agent Hermansen will make that 

transition; thus, it is entirely possible that he will be a DHS employee at the time of trial. Additionally, the legal arguments 

made herein would appear to apply to DHS regulatory restrictions on former employees, as well as possibly DOD regulatory 

restrictions on current employees, acting as expert witnesses on behalf of a party adverse to the United States. Accordingly, it 

is the position of undersigned counsel that this matter has not become moot by virtue of Agent Hermansen’s anticipated

change in employment from one federal agency to another.
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5 C.F.R. §2635.805 is part of a set of regulations that addresses “Standards of 

Ethical Conduct for Employees of the Executive Branch.” The relevant subsections 

provide as follows:

(a) Restriction. An employee shall not serve, other than on behalf of the 

United States, as an expert witness, with or without compensation, in 

any proceeding before a court or agency of the United States in which 

the United States is a party or has a direct and substantial interest, 

unless the employee’s participation is authorized by the agency under 

paragraph (c) of this section.

(b) . . .

(c) Authorization to serve as an expert witness. Provided that the 

employee’s testimony will not violate any of the principles or standards 

set forth in this part, authorization to provide expert witness service 

otherwise prohibited by paragraphs (a) and (b) of this section may be 

given by the designated agency ethics official of the agency in which 

the employee serves when:

(1) After consultation with the agency representing the Government 

in the proceeding or, if the Government is not a party, with the 

Department of Justice and the agency with the most direct and 

substantial interest in the matter, the designated agency ethics 

official determines that the employee’s service as an expert 

witness is in the interest of the Government; or

(2) The designated agency ethics official determines that the subject 

matter of the testimony does not relate to the employee’s official 

duties within the meaning of §2635.807(a)(2)(i).

(d) Nothing in this section prohibits an employee from serving as a fact 

witness when subpoenaed by an appropriate authority.

This regulation was promulgated under the Ethics in Government Act of 1978, 

codified at 5 U.S.C. §301, whose stated purpose is “to prevent corruption and other 
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official misconduct before it occurs, as well as penalizing it once it is uncovered.” Dean 

v. Veterans Admin. Regional Office, 151 F.R.D. 83, 87 (E.D.Ohio 1993) (citations 

omitted). The Act authorizes the head of an Executive Department or military 

department to enact regulations governing the conduct of its employees. In response to 

the United States Supreme Court’s decision in United States ex rel. Touhy v. Ragen, 340 

U.S. 462 (1951),

2 Congress added a sentence to §301 which states: “This section does 

not authorize withholding information from the public or limiting the availability of 

records to the public.” 5 U.S.C. §301; see also Comm. For Nuclear Responsibility v. 

Seaborg, 463 F.2d 788, 793 (D.C.Cir. 1971) (section 301 is a “housekeeping provision,” 

and “’does not authorize withholding information from the public or limiting the 

availability of records to the public.’” (citing NLRB v. Capitol Fish Co., 294 F.2d 868, 

875 (5th Cir.1961) (footnote omitted))).

In Dean, supra, the district court addressed a discovery dispute that presented the 

question before this Court today; that is, whether 5 C.F.R. §2635.805 may be used by 

the government to prevent the subpoena of a government employee sought by the 

adverse party. 151 F.R.D. 83. The court found that, as a guide for employee action and 

an attempt to eliminate misconduct, the regulation provided no authority for enforcing 

 

2 Touhy held that a subordinate government official cannot be compelled to testify or to produce documents in private 

litigation, in which the federal government or any of its agencies is not a party, where a departmental regulation prohibits 

disclosure in the absence of consent by the head of the department. In cases originating in federal court in which the federal 

government is a party to the underlying litigation, the Touhy problem does not arise. Gulf Group General Enterprises Co. 

W.L.L. v. United States, 98 Fed.C.. 639, 646(2011).
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such a provision in unrelated litigation. Id. at 86-87. The court reached this conclusion 

after examining other cases addressing the extent to which an agency regulation can 

curb the power of the court to compel discovery. 

The fact that this is a criminal case makes the government’s action even more 

troublesome. The district court for the Southern District of West Virginia considered the 

regulation’s application to the criminal context in United States v. Lecco, 495 F.Supp.2d 

581 (S.D.W.Va. 2007), and reached the same result as in Dean. The court found that 

“[i]t would be a bit of a non-sequitur to restrict application of the regulation in the civil 

context, while allowing its unfettered application in a situation where a defendant, 

within weeks of his federal capital trial, confronts the prospect of losing his key 

mitigation witness as a result.” Id. at 585. Agent Swartz is not facing the death penalty, 

but he is charged with one of the most serious crimes fathomable and he clearly has a 

substantial liberty interest at stake. 

Similarly, and very recently, the district court in Kansas found that “federal 

district courts consistently ‘have rejected the assertion that 5 C.F.R. §2635.805 bars 

federal employees from being subpoenaed to provide otherwise admissible expert 

opinion testimony.’” United States v. Adams, 2017 WL 712795 (D.Kan. 2/23/2017). 

The court therefore refused to recognize the regulation as allowing the government to 

shield employees with relevant information from being called as witnesses. Id. at *7. 
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2. 5 C.F.R. §2635.805 Does Not Create a Privilege

With the history of the regulation in mind, the Court of Federal Claims found that 

“5 U.S.C. §301 contains no explicit language authorizing an agency to withhold 

documents or testimony from the legal process.” Gulf Group General Enterprises Co. 

W.L.L. v. United States, 98 Fed.Cl. at 644 (emphasis added). The Court was particularly 

troubled by the conflict created by regulations, like the one at issue here, which usurp 

the authority of the judicial branch to control the admission of testimony for cases filed 

in federal court “in order to achieve a just and fair result.” Id. at 646. In other words, the 

Court explained, the regulation improperly attempts to assert a privilege that is not 

recognized by the Federal Rules of Criminal Procedure or the law of evidence; that is, a 

privilege of the Secretary of the Department of Homeland Security “to decide what, 

how, and when evidence is made available to an adverse litigant or a court.” Id. This 

would create a significant separation of powers problem, given that, “[w]hen the United 

States is a party to litigation, ‘judicial control over the evidence in a case cannot be 

abdicated to the caprice of executive officers.’” Id. (quoting United States v. Reynolds, 

345 U.S. 1, 9-10 (1953). For these reasons, the Court held that Army regulations neither 

barred nor required a former Army contracting officer to seek authorization prior to 

testifying as an expert witness adverse to the interests of the United States. Id. at 647.

Even when the Government asserts a claim of privilege, the “court must be 

satisfied from all the evidence and circumstances” that the privilege is warranted, and 
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may not abdicate to the executive branch its control over the evidence before it. United 

States v. Reynolds, 345 U.S. 1, 9-10 (1953); see also Sperandeo v. Milk Drivers, 334 

F.2d 381, 384 (10th Cir. 1964) (“It is for the Court, and not the government agency or 

executive branch, to determine whether documents sought to be withheld under a claim 

of privilege are entitled to the protection of that privilege.”) In Young v. United States, 

181 F.R.D. 344 (W.D.Tex. 1997), the district court considered the government’s 

reliance on 5 C.F.R. §2635.805 as the functional equivalent of asserting a privilege. 

Upon review of the case law construing the regulation, the court determined that “[t]his 

purported privilege has been rejected by several courts.” Id. at 347 (citations omitted.) 

The court similarly concluded that the regulation was designed to guide federal 

employees in their behavior, not to create an evidentiary privilege for the government. 

Id.

3. The Rules of Criminal Procedure and the Rules of Evidence Supersede 

Agency Regulations that Conflict with Them.

The Young Court also found that executive agencies cannot impose regulations 

that “contravene or otherwise impede the operation of the Federal Rules...unless there 

is ‘clear congressional intent’ because the procedural rules have ‘the force and effect of 

law.’” Id. (citing Resource Investments Inc. v. United States, 93 Fed.Cl. 373, 379 

(2010); see also United States v. Petri, 731 F.3d 833, 839 (9th Cir. 2013) (holding the 

Federal Rules of Criminal Procedure have the force and effect law) (citing United States 
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v. Marion, 404 U.S. 307, 319 (1971). Because the Federal Rules of Criminal Procedure 

and the Federal Rules of Evidence are as binding as any statute duly enacted by 

Congress, they supersede all laws in conflict with these rules. Resource Investment Inc. 

v. United States, 93 Fed.Cl. at 379; Romero v. United States, 153 F.R.D. 649, 652 

(D.Colo. 1994) (holding that once an expert witness is called, the Federal Rules of 

Evidence control his testimony, not administrative regulations).

Mr. Hermansen’s proposed testimony is admissible under the Federal Rules of 

Evidence. This Court should reach the same result as the courts that have considered, 

and rejected, the government’s attempt to arbitrarily invoke agency regulations to 

prevent Agent Hermansen from testifying at trial.

B. Separation of Powers 

The Constitution’s separation of powers structure serves to make the government 

accountable and protects the liberty of people who have the privilege of litigating in our 

courts. Boumediene v. Bush, 553 U.S. 723, 242-43 (2008) (citations omitted). Without a 

doubt, the admission of testimony at trial is controlled exclusively by the Judiciary, and 

a court’s power to govern the admissibility of expert witnesses, therefore, cannot be 

circumscribed by regulation. In Herrmann v. United States, 127 Fed.Cl. 22 (2016), the 

Court of Federal Claims refused to allow the government to limit or prevent the 

deposition of an IRS agent on the grounds that Treasury regulations required that 

agency’s authorization before permitting the agent to give testimony. The Court quoted 
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language of the Supreme Court and other relevant case law supporting the following 

principle: the rules of discovery apply to the United States the same as any other 

litigant, thus the government cannot use its executive power to dictate whose testimony 

the court may hear. Id. at 34 (“[w]hen the United States is a party to litigation, ‘judicial 

control over the evidence in a case cannot be abdicated to the caprice of executive 

officers.’” Id. (quoting United States v. Reynolds, 345 U.S. 1, 9-10 (1953)).

The cases discussed in Part A.2, above, further address the separation of powers 

problem created by allowing the Executive, by invoking 5 C.F.R. §2635.805, to 

determine what evidence may be introduced in a judicial proceeding.

C. Due Process Right to Present a Defense

The government’s proposed use of 5 C.F.R. §2635.805 also directly implicates 

Agent Swartz’s due process rights. “The right of an accused in a criminal trial to due 

process is, in essence, the right to a fair opportunity to defend against the State’s 

accusations. The right[ ] ... to call witnesses in one’s own behalf ha[s] long been 

recognized as essential to due process.” Chambers v. Mississippi, 410 U.S. 284, 294 

(1973); see also Crane v. Kentucky, 476 U.S. 683, 690 (1986) (holding that “an essential 

component of procedural fairness is an opportunity to be heard”); Washington v. Texas, 

388 U.S. 14, 19 (1967) (“The right to offer the testimony of witnesses ... is in plain 

terms the right to present a defense, the right to present the defendant’s version of the 

facts.... [The accused] has the right to present his own witnesses to establish a defense. 
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This right is a fundamental element of due process of law.”). Agent Swartz has a due 

process right to call an expert witness of his choosing, without interference from the 

government on the grounds that the witness’s appearance will violate an ethics agency 

regulation.

D. Right to Compulsory Process

Agent Swartz has a related due process right to compulsory process. The right of 

an accused to have compulsory process for obtaining and calling witnesses in his favor 

is guaranteed under the Sixth and Fourteenth Amendments. Washington, 388 U.S. at 

17–19. “Just as an accused has the right to confront the prosecution’s witnesses for the 

purpose of challenging their testimony, he has the right to present his own witnesses to 

establish a defense. This right is a fundamental element of due process of law.” Id. at 

19. Agent Hermansen’s testimony is critical to Agent Swartz’s defense. Precluding him 

not because his testimony is inadmissible but because the government has decided it’s 

not in their interest to have him testify, will violate this fundamental right.

E. Arbitrary Enforcement of Agency Regulations

As stated above, the government did not object to Agent Hermansen’s expert 

testimony at the August motion hearing, even though at that time he was employed by 

the DHS and testifying on behalf of the defense. It is relevant to note here as well that 

the government did not invoke 5 C.F.R. §2635.805 to prevent Agent Hermansen’s 

testimony in a very similar case in this District, State of Arizona v. Nicholas Corbett, 
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CR07-1508-TUC-DCB.3 There, the State of Arizona charged Border Patrol Agent 

Nicholas Corbett with the homicide of an alien who Corbett shot in the course of 

apprehension. The defense disclosed Agent Hermansen, at the time the PAIC of the 

Casa Grande Station, as an expert on the agency’s Use of Force Policy. Although not a 

party, the government knew that Agent Hermansen was being called as an expert 

witness for the defense and never interposed an objection. As a non-party to that action, 

the federal government arguably could have, but did not, invoke 5 C.F.R. §2635.805 to 

prevent Agent Hermansen from testifying on behalf of the defense. Agent Hermansen 

indeed testified as an expert witness on behalf of Agent Corbett. The government will 

likely assert that the circumstances differed because it supported Corbett’s defense 

against those charges, but this only further highlights the arbitrary and selective nature 

of when it chooses to invoke 5 C.F.R. §2635.805.

The touchstone of due process is protection of the individual against arbitrary 

action of government. Dent v. West Virginia, 129 U.S. 114, 123 (1889). Accordingly, 

due process is violated where, as here, an agency arbitrarily enforces its regulations to 

infringe Agent Swartz’s protected liberty rights. Wolff v. McDonnell, 418 U.S. 539, 558 

(1974) (government violates due process if it enforces regulations in an arbitrary or 

discriminatory manner). The application of 5 C.F.R. §2635.805 to Agent Hermansen’s 

trial testimony in this case is an arbitrary action due to the selective enforcement of 

 

3 This was a state prosecution that was removed to federal court pursuant to 28 U.S.C. §1442. (A)(1).
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agency regulations and should not be permitted. Particularly where Agent Hermansen

has already testified in this very matter, the government should be deemed to have 

waived their newly interposed objection. 

For these reasons, Agent Swartz’s Constitutional rights to due process are 

superior to, and supersede, agency-promulgated ethics regulations.

IV. CONCLUSION

The regulation at issue was not intended to confer a privilege on the government. 

The regulation was derived from 5 U.S.C. §301, which has been construed as not 

authorizing the government to withhold or limit the availability of testimony. The 

regulation may not, therefore, be used to contravene or impede the operation of the 

Federal Rules of Criminal Procedure and the Federal Rules of Evidence.

Additionally, 5 C.F.R. §2635.805 is in direct conflict with the authority of the 

judicial branch to control the admission of testimony in cases in order to achieve a fair 

and just result. Accordingly, the separation of powers doctrine precludes this Court from 

abdicating that responsibility to the caprice of the executive branch. 

Moreover, the government should not be permitted to arbitrarily or selectively 

enforce its regulations to gain a tactical advantage in a particular trial. Where, as here, 

the witness has already testified, the government should be deemed to have waived any 

objection to his appearance at trial.
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Finally, Agent Swartz’s constitutional rights to due process in the presentation of 

a complete defense, and to compulsory process, will be violated if the government is 

permitted to interfere with his selection of a defense expert.

For all the foregoing reasons, this Court should enforce the subpoena, compelling 

the appearance of Border Patrol Agent-in-Charge Pete Hermansen to provide expert 

testimony at this trial of this matter.

Respectfully submitted this 21th day of April, 2017.

LAW OFFICE OF SEAN CHAPMAN, P.C.

BY: /S/ Sean C. Chapman

Sean Chapman

Attorney for Defendant
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CERTIFICATE OF SERVICE

The undersigned certifies that on April 21, 2017, caused to be electronically filed 

the foregoing document with the Clerk of the Court using the CM/ECF system which sent 

notification to the following:

Wallace H. Kleindienst

Mary Sue Feldmeier

Wallace.Kleindienst@usdoj.gov

Mary.Sue.Feldmeier@usdoj.gov

U.S. Attorney’s Office – Tucson, AZ

405 W. Congress, Suite 4800

Tucson, AZ 85701-4050

Serena Lara