Trial of Border Patrol agent in Nogales teen's fatal shooting

Border Patrol agent Lonnie Swartz is accused of firing through the border fence at Nogales and killing a teenager.

Jurors in the murder trial of a Border Patrol agent shouldn’t be told the victim’s mother has filed a civil suit against him, federal prosecutors contend.

In new court filings Wednesday, Assistant U.S. Attorney Wallace Kleindienst does not dispute that Araceli Rodriguez is seeking unspecified monetary damages from agent Lonnie Swartz and, presumably, the federal government for whom he worked. That case remains on hold while the U.S. Supreme Court weighs legal questions about whether federal courts have jurisdiction.

But Kleindienst is telling U.S. District Court Judge Raner Collins the civil suit is irrelevant to whether or not Swartz committed murder when he admittedly shot through the border fence at Nogales and killed 16-year-old Jose Antonio Elena Rodriguez.

Moreover, Kleindienst said he fears telling jurors of the civil suit could lead them to acquit Swartz of the criminal charges.

“For example, jurors could conclude that the government is championing the decedent’s mother’s attempt to get money from the defendant through the indictment and, finding that repugnant, return a not guilty verdict even though the government proved its case,” he told Collins.

“Similarly, the jurors could return a not guilty verdict, even though the government proved its case, because they assume the victim’s mother will receive adequate compensation in the civil suit and a guilty verdict (in the criminal case) would be ‘double jeopardy,’ ” Kleindienst continued. “Knowledge of the civil suit would turn the criminal trial on its head.”

Both cases stem from the 2012 incident when Swartz, on the Arizona side of the border, shot the teen who was on the other side of the fence in Mexico.

Swartz’s attorney has said Elena Rodriguez was throwing rocks at the agent and likely was involved in drug smuggling, both contentions disputed by the teen’s family. An autopsy conducted in Mexico concluded he was shot 10 times in the back.

The criminal case is built around the government’s contention Swartz is guilty of murder because he acted intentionally in shooting Elena Rodriguez. Everything else, Kleindienst argued — including the civil suit — is legally irrelevant.

“It is simply an allegation made by the victim’s mother that the defendant unlawfully killed her son and her claim for compensation from him because of that act,” he told Collins. “She was not a witness to the homicide and has no first-hand knowledge of her son’s death.”

The criminal trial is set to begin March 20 in Tucson.