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Sean C. Chapman 

Law Offices 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 UNDER DAUBERT AND 

FRE 403 AND FRE 702 TO 

DETERMINE ADMISSIBILITY OF 

VIDEO EVIDENCE

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, LONNIE RAY SWARTZ, through counsel and pursuant to Rules 

401, 403 and 702 of the Federal Rules of Evidence, and Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), hereby moves to preclude the testimony, 

opinions, and video re-creations generated by government expert James Tavernetti. 

Further, the video copies collected into evidence by the government following this 
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incident are unreliable and should be precluded as well. This motion is made for the 

reasons set forth in the accompanying Memorandum of Points and Authorities.

MEMORANDUM OF POINTS AND AUTHORITIES

I. FACTS

The government has charged defendant Lonnie Swartz with second degree murder, 

“in the District of Arizona, within the special maritime and territorial jurisdiction of the 

United States.” in violation of 18 U.S.C. § 1111(a) and (b). (Doc. 1.) 

On October 10, 2012 Agent Swartz was standing within the State of Arizona when 

he discharged his firearm, causing the death of an individual in the Republic of Mexico 

(hereafter "the decedent") who, working as a member of a drug cartel, was throwing 

rocks at Swartz and other agents in an effort to impede the apprehension of two drug 

smugglers attempting to flee into Mexico.

This event was recorded by several Border Patrol pole cameras operating in the 

area. On the night of the shooting, the FBI responded and obtained a copy of the videos, 

but made no effort to preserve the original. Several years later, in October, 2015, efforts 

were made by law enforcement to obtain the original video captures of the incident that 

night. By this time, however, the original video (contained on a hard drive) had been lost 

or destroyed.
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The government retained video expert James Tavernetti in an effort to make a recreation of the shooting incident. Mr. Tavernetti did in fact make several video recreations of the incident.1

 One of the videos purports to show Agent Swartz firing at the 

decedent from three different positions. Another purports to show the decedent moving 

after he collapsed to the ground (a critical fact in this case).

The defense retained its own expert, Grant Fredericks from Forensic Video 

Solutions. Mr. Fredericks has concluded, essentially, that the videos created by the 

government's expert are completely unreliable given that they are based on a flawed copy 

of the original video, which was not preserved or made available to their expert. The 

defense expert opinions (previously disclosed to the government) are summarized as 

follows:

1. The government violated its own guidelines (SWGDE) when it acquired highly 

compressed copies of the two videos in this case instead of acquiring the originally 

recorded data of the videos from the Digital Video Recording System (DVR) that 

recorded them. The DVR was operated and managed by the government and was 

fully within its control and security at the time of the events. 

2. The two pole-camera recorded videos disclosed by the government are highly 

compressed and deeply flawed copies of the original videos created and captured 

by the government’s camera system and DVR. 

3. The compression resulted in the complete loss of the original video data. 

4. The altered data that was recovered and produced by the government created video 

images that merely repeat image detail, from image to image, rather than updating 

the actual events that occurred in front of the cameras. As a result, a substantial 

 

1 The defense anticipates that its expert may testify at a hearing on the admissibility of the Tavernetti

videos, at which time, they will be introduced into evidence, and their flaws exposed to the Court.
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number of picture elements (pixels) are merely repeated from image to image. 

Much of the video images contain data from previous moments in time, but are 

reused, purporting to take place at later moments in time.

5. Because of the altered video, the following problems were created: 

a. There are almost no frames and perhaps no frames at all in the existing video 

that represent an exact copy of a frame from the original two pole-camera 

videos. 

b. The pixel-copying that resulted from the high level of compression impacted 

important “target” areas of the two videos. 

c. The pixel-copying reflects an alteration of the reality captured by the two 

pole-camera videos. 

d. The pixel-copying resulted in a substantial degradation to the image quality 

and to the video information originally captured by the government’s two 

pole-cameras and DVRs. 

e. The compression and pixel-copying resulted in motion between frames that 

did not actually occur at the time of the events. 

6. Mr. Tavernetti relied on the altered and inaccurate video copies that were 

recovered by the government for the totality of his analysis and for his subsequent 

demonstratives. 

7. Mr. Tavernetti’s claim for the margin of error that may exist in his approximations 

regarding distance is not supported by the videos disclosed by the government. 

8. Mr. Tavernetti’s “enhanced” videos create an apparent resolution or visual acuity 

that does not exist in the videos disclosed by the government. 

9. Mr. Tavernetti’s “enhanced” videos are subjective manipulations that extend the 

reality depicted on the copied videos and that ultimately manufacturers a new 

reality based on elections he made using the controls on the various software tools 

he employed. 

10.The videos disclosed by the government contain insufficient data to determine if 

the deceased moved at any given time. 
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11.The government video’s compression, pixel-copying, camera switching from 

daylight to infrared and overall poor quality all could lead to the appearance of 

motion by the deceased that did not likely exist on the original video. 

12.The video’s compression, pixel-copying, camera switching from daylight to 

infrared and overall poor quality created motion in the copied video that does not 

actually exist in the original videos. 

II. LAW

A district court has considerable discretion to admit or exclude expert testimony 

under Federal Rule of Evidence 702. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 138-39 

(1997); Seatrax, Inc. v. Sonbeck Int’l, Inc., 200 F.3d 358, 371 (5th Cir. 2000). Rule 702

provides:

A witness who is qualified as an expert by knowledge, skill, experience, 

training, or education may testify in the form of an opinion or otherwise if: (a) 

the expert’s scientific, technical, or other specialized knowledge will help the 

trier of fact to understand the evidence or to determine a fact in issue; (b) the 

testimony is based on sufficient facts or data; (c) the testimony is the product of 

reliable principles and methods; and (d) the expert has reliably applied the 

principles and methods to the facts of the case.

Fed. R. Evid. 702.

In Daubert v. Merrell Dow Pharmaceuticals, Inc., the Supreme Court held that 

Rule 702 requires the district court to act as a gatekeeper to ensure that “any and all 

scientific testimony or evidence admitted is not only relevant, but reliable.” 509 U.S. at 

589; see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (clarifying 

that the Daubert gatekeeping function applies to all forms of expert testimony). A video

re-creation of an accident by an expert witness and his testimony is subject to Daubert 's 
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gate-keeping function. Robinson v. Missouri Pac. R.R. Co., 16 F.3d 1083, 1088-89 (10th 

Cir.1994)

A trial court's gatekeeping function thus involves a two-part inquiry into reliability 

and relevance. First, the Court must determine whether the proffered expert testimony is 

reliable. The party offering the testimony bears the burden of establishing its reliability 

by a preponderance of the evidence. See Moore v. Ashland Chem. Inc., 151 F.3d 269, 276 

(5th Cir. 1998). The reliability inquiry requires the Court to assess whether the reasoning 

or methodology underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-

93. The aim is to exclude expert testimony based merely on subjective belief or 

unsupported speculation. See id. at 590.

The Court in Daubert articulated a flexible, non-exhaustive, five-factor test to 

assess the reliability of an expert’s methodology: (1) whether the expert’s theory can be 

or has been tested; (2) whether the theory has been subject to peer review and 

publication; (3) the known or potential rate of error of a technique or theory when 

applied; (4) the existence and maintenance of standards and controls; and (5) the degree 

to which the technique or theory has been generally accepted in the scientific community. 

Id. at 593-95. The Supreme Court has emphasized, however, that these factors “do not 

constitute a ‘definitive checklist or test.’ ” Kumho, 526 U.S. at 150 (quoting Daubert, 509 

U.S. at 593). Rather, district courts “must have considerable leeway in deciding in a 

particular case how to go about determining whether particular expert testimony is 
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reliable.” Id. at 152. Courts have also considered whether experts are “proposing to 

testify about matters growing naturally and directly out of research they have conducted 

independent of the litigation, or whether they have developed their opinions expressly for 

purposes of testifying,” Daubert v. Merrell Dow Pharms., Inc., 43 F.3d 1311, 1317 (9th 

Cir. 1995). They also have looked to whether the expert has adequately accounted for 

obvious alternative explanations, see Claar v. Burlington N.R.R., 29 F.3d 499 (9th Cir. 

1994), and whether the expert “is being as careful as he would be in his regular 

professional work outside his paid litigation consulting.” Sheehan v. Daily Racing Form, 

Inc., 104 F.3d 940, 942 (7th Cir. 1997).

As a general rule, questions relating to the bases and sources of an expert’s opinion 

affect the weight to be assigned that opinion rather than its admissibility and should be 

left for the [finder of fact]’s consideration.” United States v. 14.38 Acres of Land, More 

or Less Situated in Leflore Cty., Miss., 80 F.3d 1074, 1077 (5th Cir. 1996) (quoting 

Viterbo v. Dow Chem. Co., 826 F.2d 420, 422 (5th Cir. 1987)). Nonetheless, expert 

testimony “must be reliable at each and every step or else it is inadmissible. The 

reliability analysis applies to all aspects of an expert’s testimony: the methodology, the 

facts underlying the expert’s opinion, the link between the facts and the conclusion, et 

alia.” Knight v. Kirby Inland Marine Inc., 482 F.3d 347, 355 (5th Cir. 2007) (citation 

omitted). “Where the expert’s opinion is based on insufficient information, the analysis is 

unreliable.” Paz v. Brush Engineered Materials, Inc., 555 F.3d 383, 388 (5th Cir. 2009).
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In Joiner, the Supreme Court explained that “nothing in either Daubert or the 

Federal Rules of Evidence requires a district court to admit opinion evidence that is 

connected to existing data only by the ipse dixit2 of the expert.” 522 U.S. at 146. Rather, 

“[a] court may conclude that there is simply too great an analytical gap between the data 

and the opinion proffered.” Id. Reliability under Daubert is determined by looking at 

whether the reasoning or methodology underlying the testimony is scientifically valid, 

and relevance is determined by whether that reasoning or methodology properly can be 

applied to the facts in issue. 

If the Court is satisfied that the expert’s testimony is reliable, the Court must then 

determine whether the expert’s analysis is relevant. The question here is whether the 

reasoning or methodology “fits” the facts of the case and will thereby assist the trier of 

fact to understand the evidence. See Daubert, 509 U.S. at 591. “[F]undamentally

unsupported” opinions “offer [ ] no expert assistance to the [trier of fact]” and should be 

excluded. Guile v. United States, 422 F.3d 221, 227 (5th Cir. 2005) (citing Viterbo, 826 

F.2d at 422.

Here, the government's expert's opinions are based on video re-creations that can 

by no means be considered reliable or satisfy the requirements of FRE 702. Specifically, 

this Court cannot be comfortable that Mr. Tavernetti's opinions are "based on sufficient 

 

2 [Latin, He himself said it.] An unsupported statement that rests solely on the authority of the 

individual who makes it.
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facts or data" or that his "the testimony is the product of reliable principles and methods" 

as required by 702 (b) and (c). Mr. Tavernetti's opinions and video re-reactions would 

not, therefore, properly assist the jury in their fact-finding role. Rather, to allow Mr. 

Tavernetti to testify about his video re-creations would confuse and mislead the jury 

regarding this event. As such, this evidence must be precluded.

III. CONCLUSION

Based on the foregoing, the defendant requests that the opinions of James 

Tavernetti, and the video recreations created by the government expert, be precluded 

from trial. Additionally, the video copies seized by the government are inherently 

unreliable and should be precluded as well.

Respectfully submitted this 13th day of March, 2017:

LAW OFFICES 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 March 13, 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

US Attorneys Office – Tucson, AZ

405 W. Congress, Suite 4800

Tucson, AZ 85701-4050

Jim Calle

Serena Lara