Border Agent Found Not Guilty Again In Border Killing

Published: Thursday, November 22, 2018 - 8:50am
Updated: Thursday, December 6, 2018 - 5:03pm

Nobody has ever disputed that Border Patrol agent Lonnie Swartz killed 16-year-old Jose Antonio Elena Rodriguez.

Federal prosecutors said the killing was unnecessary. Swartz’s legal team argued he was defending himself. They prevailed during a high profile trial last spring when he stood trial for second degree murder and on Wednesday, they prevailed again as a jury found Swartz not guilty this time of involuntary manslaughter.

Swartz hung his head at the defense table and sobbed in relief, his shoulders shaking.

Behind him in the airy federal courtroom in Tucson, the dead teen’s grandmother also sobbed as she left the courtroom.

"Relief, relief, finally relief. I think justice was served. God bless every one of those jurors," said Border Patrol union vice president Art Del Cueto.

Swartz could still face a voluntary manslaughter conviction, a charge the jury could not agree on, but his lawyer Sean Chapman finds that unlikely.

"He was acquitted on the lesser charge of involuntary. They can’t try him again on voluntary, they can’t. It’s just not going to happen," he said.

Prosecutors declined an interview request.

Last spring, federal prosecutor Wallace Kleindienst said "why don’t you go talk to the jurors and tell us what they were thinking? That would help us out," after the jury in that trial acquitted Swartz.


The events of the night of Oct. 10, 2012 were murky until after Swartz's indictment in 2015 when the U.S. government first charged him.

A Border Patrol press release of the events that night said: "On October 10, 2012, U.S. Border Patrol agents in Nogales, Arizona, responded to reports of two suspected narcotics smugglers near West International Street and Hereford Drive at approx 11:30 p.m. MT. Preliminary reports indicate that the agents observed the smugglers drop narcotics load on the U.S. side of the international boundary and flee back to Mexico. Subjects at the scene then began assaulting the agents with rocks. After verbal commands from agents to cease were ignored, one agent then discharged his service firearm. One of the subjects appeared to have been hit. Agents notified the Government of Mexico and secured the scene. U.S. Customs and Border Protection is fully cooperating with the FBI-led investigation."

Two recordings obtained by the Fronteras Desk give a small portrait of what happened after that.

In the first, an unknown man calls Mexico's 911 and reports a shooting. He begs police to help and tells them he thinks the Border Patrol is involved in the shooting. Then a Border Patrol agent calls Mexico’s 911 and reports there was a shooting and someone was hurt in Mexico.

Afterward, Swartz fell against a telephone pole, vomited and said, "I shot and there’s someone dead in Mexico," according to a court document filed in the case.

Chapman argued Swartz was reacting to a deadly situation. He said Swartz and other federal agents and officers came under attack by people throwing rocks over the steel bollard wall dividing Nogales, Arizona, from its twin sister city in Mexico. Unlike the other law enforcement at the scene that night, Swartz ran to the fence and opened fire. He shot Jose Antonio, ran, reloaded then placed his handgun between the bars of the fence again, and fired again. The teenager was shot ten times and died on the street in Mexico.

The defense argued Jose Antonio was part of a group throwing rocks to help two drug smugglers escape and pointed to rust found on the bottom of his shoes as evidence he had climbed the border fence.

Prosecutors never disputed the accusation but argued Swartz wasn’t under threat as evidenced by other officers who did not respond in kind. The defense then introduced a source it said knew the teen and had seen him across the border in Arizona by her house the night of the shooting. But she contradicted the account Chapman gave when he introduced her.

Kleindienst and his team argued Swartz was fed up with having rocks thrown over the border at him and, in their chosen words during the trial, "calmly and deliberately," walked up to the border fence and opened fire.

Araceli Rodriguez, the teenager’s mother, disputed that her son was involved with drug traffickers.

"They fouled Jose Antonio's name. The name of the family," she said.

Taide Elena, the teen’s grandmother, stood silently by her daughter-in-law then spoke.

"We say may God forgive him," she said. "Because we will never forgive him."

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