By Marty Graham
SAN DIEGO (Reuters) - A prosecutor in the trial of a Mexican drug trafficker accused of killing a U.S. Border Patrol agent said during closing statements on Tuesday that the trafficker deliberately swerved a truck and struck the officer as he fled back to Mexico.
But a lawyer for Jesus Navarro Montes, 25, argued that there was no forensic evidence or eyewitness testimony placing him behind the wheel of the speeding Hummer sport utility vehicle that killed Luis Aguilar in January, 2008.
"There's nothing that indicates who was driving, there were no fingerprints, DNA or forensic evidence in the Hummer," defense attorney David Bartick told a jury at the U.S. District court in San Diego.
Navarro is charged with second-degree murder for killing Aguilar by striking him with the Hummer on January 19, 2008.
Earlier that day, Border Patrol agents at the Imperial Sand Dunes close to the Mexico border in southern California spotted a pickup truck they suspected of smuggling narcotics, which was followed by the Hummer.
Aguilar and another agent set out a spike strip across an access road to stop the vehicles. But the Hummer swerved to avoid it, striking Aguilar before speeding south into Mexico.
Aguilar died of his injuries at the scene.
Navarro, who was arrested in Mexico last year and extradited to the United States, is also charged with two other men, Jorge Montes-Leyva and Macedonio Guerrero, of conspiracy to distribute marijuana in charges tied to the incident.
Navarro pleaded guilty last month to a charge dating from a previous drug smuggling attempt in September 2007, in which he was arrested by Border Patrol agents as he drove in a pickup truck packed with 979 pounds of marijuana, accompanied by an unidentified woman passenger.
While under arrest in a Border Patrol vehicle, the woman passenger jumped into the driver's seat and drove them both back to Mexico.
In an unusual legal defense in the current case, Navarro claimed that the loss of a large load of marijuana, together with his arrest and escape from federal custody, had caused him to dropped by his Mexican drug smuggling ring. That is why, he argued, other members of the drug ring testified against him.
Despite the presence in court of a half dozen Border Patrol agents, two Bureau of Land Management employees and other witnesses, none was able to state with certainty that Navarro was driving the Hummer that killed Aguilar.
That testimony came from two members of the drug ring who gave evidence as cooperating witnesses and face sentencing on separate felony charges after Navarro's trial concludes.
Bartick told the jury that while there was no forensic or photographic evidence to place Navarro behind the wheel, there "was pressure on the drug trafficking organization to provide a warm body to authorities, and that's what they did."
But prosecutors argued that witnesses who said Navarro "looked similar" to the driver, coupled with the testimony of Guerrero and another witness, Brenda Romero, proved their case.
"This defendant deliberately, intentionally and with extraordinary recklessness killed agent Aguilar," Assistant U.S. Attorney David Leshner told the jury.
"To believe otherwise is to believe that there's a global conspiracy to convict Mr. Navarro."
The jury is considering its verdict. If convicted of second degree murder, Navarro faces life in prison.
(Writing by Tim Gaynor; Editing by Peter Bohan)