THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA 2 3 HONORABLE ROGER T. BENITEZ UNITED STATES DISTRICT JUDGE PRESIDING 4 _______________________________________________________ 5 DARLENE FITZGERALD-CATALAN ) 6 AND SANDRA G. NUNN, ) ) 7 PLAINTIFFS, ) ) 8 VS. ) NO. 01-CV-0470-BEN ) 9 TOM RIDGE, SECRETARY OF THE ) UNITED STATES DEPARTMENT OF ) 10 HOMELAND SECURITY, ) ) 11 DEFENDANT. ) 12 _______________________________________________________ 13 EXCERPT FROM PROCEEDINGS 14 _______________________________________________________ 15 16 17 REPORTER'S TRANSCRIPT OF PROCEEDINGS MARCH 9, 2005 18 SAN DIEGO, CALIFORNIA 19 20 21 22 GAYLE WAKEFIELD, RPR, CRR OFFICIAL COURT REPORTER 23 UNITED STATES COURTHOUSE 940 FRONT STREET, ROOM 4145 24 SAN DIEGO, CALIFORNIA 92101-8900 PH: 619-239-0652 25 FX: 619-239-0119 GAYLE5@SBCGLOBAL.NET 2 1 APPEARANCES: 2 FOR THE PLAINTIFF: GASTONE BEBI FITZGERALD LAW OFFICES OF GASTONE BEBI 3 8415 LA MESA BOULEVARD SUITE 5A 4 LA MESA, CA. 91941 5 FOR THE PLAINTIFF: JOHN P. STENNETT 6 NUNN STENNETT AND STENNETT 501 WEST BROADWAY 7 SUITE 820 SAN DIEGO, CA. 92101 8 9 FOR THE DEFENDANT: TIMOTHY STUTLER BETH A. CLUKEY 10 U.S. ATTORNEY'S OFFICE 880 FRONT STREET, ROOM 6293 11 SAN DIEGO, CA. 92101-8893 12 13 14 15 16 17 18 19 20 21 22 23 24 25 3 1 I N D E X 2 3 (GB) (JS) (GB) WITNESSES DIRECT CROSS CROSS REDIRECT RECROSS 4 5 JOHN HENSLEY 4 52 74 108 110 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HENSLEY - DIRECT 4 1 MARCH 9, 2005 2 THE COURT: THANK YOU, MR. SHINTANI, YOU'RE EXCUSED. 3 CALL YOUR NEXT WITNESS, MR. STUTLER. 4 MR. STUTLER: YES, YOUR HONOR. AT THIS TIME THE 5 SECRETARY CALLS THE FORMER SPECIAL AGENT IN CHARGE OF LOS 6 ANGELES REGION OF THE U.S. CUSTOMS SERVICE JOHN HENSLEY. 7 (WITNESS SWORN ON OATH.) 8 THE CLERK: STATE YOUR FULL NAME FOR THE RECORD, 9 SPELLING YOUR FIRST AND LAST NAME. 10 THE WITNESS: JOHN HENSLEY, J-O-H-N, HENSLEY, 11 H-E-N-S-L-E-Y 12 DIRECT EXAMINATION 13 BY MR. STUTLER: 14 Q. GOOD MORNING, MR. HENSLEY. 15 A. GOOD MORNING. 16 Q. AT SOME TIME WERE YOU THE CUSTOMS SPECIAL AGENT IN CHARGE 17 IN THE SAIC OFFICE IN LOS ANGELES? 18 A. YES, I WAS. 19 Q. I'VE PUT UP HERE ON THE OVERHEAD A DOCUMENT THAT HAS BEEN 20 SHOWN TO THE JURY SHOWING THE -- A PYRAMID SHOWING THE 21 HIERARCHY IN THE LOS ANGELES REGION. WOULD THAT BE YOU AT THE 22 VERY TOP OF THAT? 23 A. YES, IT IS. 24 Q. WOULD YOU PLEASE TELL THE JURY YOUR LAW ENFORCEMENT 25 BACKGROUND WAS LEADING TO YOUR TAKING THE SPECIAL AGENT IN HENSLEY - DIRECT 5 1 CHARGE POSITION. 2 A. YES. I WAS ORIGINALLY A STATE TROOPER IN COLORADO IN THE 3 '60S. WAS A POLICE OFFICER AND THEN DETECTIVE SARGENT IN 4 BOULDER, COLORADO. BECAME A SPECIAL AGENT IN 1970, AND SERVED 5 IN SEVERAL LOCATIONS, INCLUDING THE MEXICAN BORDER AT EAGLE 6 PASS, TEXAS; HOUSTON, TEXAS; DENVER. WAS A SUPERVISOR IN 7 HOUSTON, TRANSFERRED TO SAN DIEGO AS THE ASSISTANT SPECIAL 8 AGENT IN CHARGE, WAS IN SAN DIEGO FOR ABOUT FOUR YEARS, BECAME 9 THE ASSISTANT REGIONAL COMMISSIONER OF CUSTOMS FOR THE WESTERN 10 UNITED STATES, SEVEN STATES, AND THE PACIFIC. FOLLOWING ABOUT 11 FOUR YEARS IN THAT POSITION, I BECAME THE ASSISTANT 12 COMMISSIONER FOR INVESTIGATIONS AND ENFORCEMENT, WHICH IS OVER 13 ALL ENFORCEMENT AND INVESTIGATIVE ACTIVITIES FOR THE ENTIRE 14 UNITED STATES CUSTOMS SERVICE, IN WASHINGTON, D.C. I LEFT 15 THAT POSITION, AFTER ALMOST FIVE YEARS, AND I BECAME THE 16 SPECIAL AGENT IN CHARGE IN DALLAS, TEXAS, AND FINALLY IN THE 17 SPRING OF 1996 TRANSFERRED BACK TO LOS ANGELES, WHICH WAS MY 18 FINAL DUTY STATION, AND I RETIRED IN 2000. 19 Q. I THINK I DETECT A SLIGHT TWANG IN YOUR VOICE, YOU'RE NOT 20 FROM LOS ANGELES ORIGINALLY, ARE YOU? 21 A. GREW UP IN TEXAS AND OKLAHOMA. 22 Q. ARE YOU MARRIED, HAVE FAMILY? 23 A. MARRIED, AND TWO GROWN SONS. 24 Q. TELL THE JURY BRIEFLY YOUR EDUCATIONAL BACKGROUND. 25 A. ABOUT 140 SEMESTER HOURS OF ABOUT FIVE DIFFERENT HENSLEY - DIRECT 6 1 COLLEGES. I DID NOT COMPLETE THE BACHELOR'S AGREE, ALTHOUGH I 2 HAVE THE HOURS, HAD ABOUT 14 HOURS OF MASTER'S DEGREE PROGRAM 3 THROUGH THE UNITED STATES CUSTOMS SERVICE THROUGH 4 NATIONAL-LOUIS UNIVERSITY, AND I WAS SENT TO HARVARD 5 UNIVERSITY ON TWO DIFFERENT EXECUTIVE PROGRAMS. 6 Q. YOU MENTIONED -- AND I'M GOING TO POINT TO THE BOARD HERE 7 -- THAT YOUR POSITION IS UP HERE AT THE TOP OF THE PYRAMID; IS 8 THAT CORRECT? 9 A. YES. 10 Q. WHERE WOULD A SPECIAL AGENT LIKE DARLENE FITZGERALD OR 11 SANDRA NUNN APPEAR ON THIS CHART? 12 A. AT THE LARGE NUMBER IN THE BOTTOM OF THE PYRAMID. 13 Q. SOMEWHERE DOWN HERE (INDICATING)? 14 A. YES. 15 Q. DID YOU KNOW THE PROBLEMS AND CONCERNS OF EVERY SINGLE 16 AGENT HERE WHILE YOU WERE THE SPECIAL AGENT IN CHARGE? 17 A. NO. 18 Q. HOW MANY PEOPLE WERE THERE UNDER YOU AT THE TIME AS 19 SPECIAL AGENT IN CHARGE? 20 A. BOTH SWORN AND NOT SWORN, MEANING AGENTS AND SUPPORT 21 PERSONNEL, ANALYSTS, A LITTLE OVER 200. 22 Q. HOW MANY LEVELS WERE -- MANAGEMENT LEVELS WERE BETWEEN 23 YOU AND MS. FITZGERALD AND MS. NUNN? 24 A. I BELIEVE THERE ARE FOUR. 25 Q. YOU'RE RETIRED NOW? HENSLEY - DIRECT 7 1 A. YES. 2 Q. WHAT HAVE YOU BEEN DOING SINCE RETIRING? 3 A. UPON RETIREMENT, THE GOVERNOR NAMED ME AS THE 4 COMMISSIONER OF THE STATE GAMBLING COMMISSION IN CALIFORNIA, 5 AND APPROXIMATELY A LITTLE OVER TWO YEARS AGO I WENT TO WORK 6 FOR THE SAN DIEGO-BASED COMPANY SCIENTIFIC APPLICATIONS 7 INTERNATIONAL CORPORATION, WHERE I'M A CORPORATE 8 VICE-PRESIDENT. 9 Q. WHAT DO YOU DO AS A CORPORATE VICE-PRESIDENT FOR SAIC? 10 A. YES. 11 Q. JUST A COINCIDENCE, THE INITIALS, I ASSUME? 12 A. YES. SOMEWHAT CONFUSING AT TIMES. 13 JUROR NO. 2: EXCUSE ME, YOUR HONOR, I'M ACTUALLY AN 14 EMPLOYEE OF SAIC, JUST TO LET YOU KNOW. 15 MR. STUTLER: PERHAPS WE SHOULD DISCUSS IT WITH THE 16 JUROR. 17 THE COURT: YEAH, LET'S -- WHY DON'T WE TAKE A SHORT 18 BREAK. 19 JUROR NO. 2: SORRY TO INTERRUPT. 20 THE COURT: LET'S TAKE A SHORT BREAK. YOU MAY STEP 21 DOWN. 22 WHY DON'T YOU COME BACK -- LADIES AND GENTLEMEN OF THE 23 JURY, COME BACK IN ABOUT 15 MINUTES, OKAY. THAT WILL BE 24 QUARTER TO 12. 25 (THE FOLLOWING OCCURRED OUTSIDE THE PRESENCE OF THE JURY.) HENSLEY - DIRECT 8 1 THE COURT: THE RECORD SHOULD REFLECT THAT ALL THE 2 MEMBERS OF THE JURY ARE -- HAVE LEFT THE COURTROOM EXCEPT ONE. 3 I'M SORRY, I DON'T RECALL YOUR NAME. 4 JUROR NO. 2: LAURA, L-A-U-R-A, RUCKER, R-U-C-K-E-R. 5 THE COURT: YOU'RE EMPLOYED BY? 6 JUROR NO. 2: SCIENCE APPLICATIONS INTERNATIONAL 7 CORPORATION. 8 THE COURT: IN WHAT POSITION ARE YOU EMPLOYED? 9 JUROR NO. 2: I WORK IN THE CORPORATE DATA CENTER. 10 THE COURT: DO YOU INTERACT MUCH WITH MR. HENSLEY? 11 JUROR NO. 2: ACTUALLY NEVER HEARD OF HIM. 12 THE COURT: WELL, THAT EXPLAINS WHY WHEN I MENTIONED 13 HIS NAME YOU DID NOT RECOGNIZE HIM. 14 JUROR NO. 2: THAT'S TRUE. 15 THE COURT: WOULD THE FACT THAT MR. HENSLEY IS THE -- 16 WHAT IS HE, THE VICE-PRESIDENT? 17 MR. STUTLER: HE'S A VICE-PRESIDENT, YOUR HONOR. 18 JUROR NO. 2: IT WOULDN'T AFFECT ME. JUST FOR THE 19 RECORD THOUGH, SAIC HAS HUNDREDS AND HUNDREDS OF 20 VICE-PRESIDENTS. THEY USE IT AS -- IT'S MORE OF AN HONORARY 21 TITLE THAN ANYTHING IN THE COMPANY. IT'S JUST TO INDICATE 22 THAT THAT PERSON HAS ACHIEVED THE HIGHEST POINT IN THEIR 23 PROMOTION CHAIN AND WHEN THEY WANT TO GIVE THE PERSON A REWARD 24 THEY ASSIGN THE VICE-PRESIDENT TITLE. THEY HAVE 25 VICE-PRESIDENTS IN ALMOST EVERY DEPARTMENT. HENSLEY - DIRECT 9 1 THE COURT: I'M SORRY, DO YOU WORK UNDER MR. HENSLEY 2 IN ANY WAY? 3 JUROR NO. 2: NO, SIR. 4 THE COURT: KNOWING NOW THAT YOU WORK FOR A COMPANY IN 5 WHICH MR. HENSLEY IS A VICE-PRESIDENT, WOULD THAT AFFECT YOUR 6 DECISION-MAKING IN THIS CASE ONE WAY OR THE OTHER? 7 JUROR NO. 2: I DON'T BELIEVE SO. 8 THE COURT: WELL, DO YOU THINK THAT -- I MEAN, PART OF 9 THE ISSUE HERE IS WHETHER OR NOT MR. HENSLEY DISCRIMINATED 10 AGAINST MS. FITZGERALD BECAUSE SHE'S A FEMALE AND THAT EITHER 11 HE DIRECTLY OR HIS DEPARTMENT RETALIATED AGAINST MS. 12 FITZGERALD AND MS. NUNN FOR THEIR EEO ACTIVITIES. 13 JUROR NO. 2: RIGHT. 14 THE COURT: DO YOU UNDERSTAND ALL THAT? 15 JUROR NO. 2: I UNDERSTAND THAT. 16 THE COURT: ALL RIGHT. 17 JUROR NO. 2: MY CONCERN ISN'T REALLY MY -- I'M NOT 18 WORRIED ABOUT MR. HENSLEY, NEVER HEARD OF HIM. HE PROBABLY 19 WOULDN'T RECOGNIZE ME IF HE SAW ME ON THE STREET. I DON'T SEE 20 HOW HE WOULD EVER GET MY NAME. I MEAN, HE DOESN'T WORK FOR 21 THE COURT, THE COURTS ARE THE ONLY PEOPLE THAT HAVE MY NAME. 22 I'M NOT REALLY CONCERNED ABOUT MR. HENSLEY. I'M NOT CONCERNED 23 ABOUT MY JUDGMENT. 24 THE COURT: OKAY. YOU JUST WANTED TO ALERT US. 25 JUROR NO. 2: I WANTED TO ALERT YOU AND GIVE BOTH HENSLEY - DIRECT 10 1 PARTIES A CHANCE TO KNOW THE FACTS. I DON'T BELIEVE IT WILL 2 AFFECT -- 3 THE COURT: WE CERTAINLY APPRECIATE THAT. 4 JUROR NO. 2: -- MY IMPARTIALITY. 5 THE COURT: MR. STENNETT OR MR. BEBI, EITHER ONE OF 6 YOU WANT TO ASK SOME QUESTIONS? 7 MR. BEBI: IF I MAY, YOUR HONOR. 8 THE COURT: SURE. 9 MR. BEBI: THE ONLY QUESTION I HAVE, BEING A 10 VICE-PRESIDENT OF THE COMPANY THAT YOU WORK FOR, DOES THAT 11 GIVE HIM MORE CREDIBILITY, IN YOUR MIND, THAN ANY OTHER 12 WITNESS? 13 JUROR NO.2: NO, SIR. AS I SAID, THE VICE-PRESIDENTS 14 ARE -- IT'S GIVEN OUT LIKE CANDY. 15 THE COURT: A DIME A DOZEN. 16 JUROR NO. 2: VICE-PRESIDENT BASICALLY MEANS NOTHING 17 IN OUR COMPANY. SORRY. 18 THE COURT: I'M SURE MR. HENSLEY WOULD BE PLEASED TO 19 HEAR THAT. SHOULD WE BRING HIM IN AND INFORM HIM OF THAT. 20 JUROR NO. 2: REALLY DEPENDS MORE ON WHAT YOUR WORK -- 21 THE COURT: DOES IT GET YOU A FANCIER OFFICE MAYBE. 22 JUROR NO. 2: IT COULD, BUT IN GENERAL TERMS IF YOU'VE 23 GOTTEN HIGH ENOUGH TO WHERE THEY'RE GIVING YOU THE 24 VICE-PRESIDENT TITLE, THEY'VE ALREADY GIVEN YOU THE WINDOW 25 OFFICE, AND THAT'S THE HIGHEST HONOR. HENSLEY - DIRECT 11 1 THE COURT: HOW ABOUT A RESERVED PARKING PLACE? 2 MR. BEBI: THANK YOU FOR YOUR HONESTY. 3 JUROR NO. 2: I SHOULD HAVE REALIZED THAT MIGHT COME 4 UP. 5 THE COURT: MR. STENNETT. 6 MR. STENNETT: I DON'T KNOW IF MR. HENSLEY MENTIONED 7 WHAT DIVISION. 8 MR. STUTLER: NOT YET. 9 THE COURT: DO YOU KNOW, MR. STUTLER? 10 MR. STUTLER: HE DOES SOMETHING IN SECURITY. I WAS 11 GOING TO ASK HIM THAT NEXT. 12 MR. STENNETT: IN AN OFFICE UP IN THE L.A. AREA. 13 JUROR NO. 2: AND I'M DOWN HERE. 14 THE COURT: ANY QUESTIONS, MR. STENNETT? 15 MR. STENNETT: NO, YOUR HONOR. 16 THE COURT: MR. STUTLER. 17 MR. STUTLER: JUST A COUPLE. THE FACT THAT IT MAY BE 18 AN HONORARY POSITION, THAT WOULDN'T MEAN YOU'RE GOING TO GIVE 19 HIM LESS -- 20 JUROR NO. 2: NO, SIR. 21 MR. STUTLER: WHICH DIVISION DO YOU WORK IN? 22 JUROR NO. 2: I WORK IN THE CORPORATE DATA CENTER, AND 23 IT'S BASICALLY IN THE FINANCIAL DIVISION. AS A MATTER OF 24 FACT, OUR DIVISION IS FINALIZING OUR SARBANE OXLEY 25 REQUIREMENTS. THE BIG DEADLINE IS LOOMING. HENSLEY - DIRECT 12 1 MR. STUTLER: IS THAT HERE IN SAN DIEGO? 2 JUROR NO. 2: YES. 3 MR. STUTLER: WHAT PART OF TOWN? 4 JUROR NO. 2: BY UTC, THE LA JOLLA AREA. 5 MR. STUTLER: WE HAVE NO OBJECTION TO THIS JUROR. 6 THE COURT: ANYTHING WE NEED TO DISCUSS OUTSIDE OF MS. 7 RUCKER'S PRESENCE? 8 MR. STENNETT: I DON'T BELIEVE SO. 9 THE COURT: TELL YOU WHAT, MS. RUCKER, WHY DON'T YOU 10 STEP OUTSIDE AND BE BACK AT A QUARTER TILL. 11 JUROR NO. 2: THANK YOU. 12 (JUROR NO. 2 LEFT THE COURTROOM.) 13 THE COURT: THE RECORD SHOULD REFLECT MS. RUCKER'S 14 LEFT THE COURTROOM. I DIDN'T WANT TO PUT ANY PRESSURE ON 15 EITHER ONE OF YOU GENTLEMEN IN THE EVENT YOU HAVE SOME 16 OBJECTION TO MS. RUCKER CONTINUING ON THE PANEL. 17 MR. BEBI: I HAVE NO OBJECTION, YOUR HONOR. 18 THE COURT: MR. STENNETT. 19 MR. STENNETT: NOR DO I, YOUR HONOR. 20 THE COURT: IN THAT CASE, THANK YOU, VERY MUCH. BOY, 21 I SURE APPRECIATE HER BEING CANDID AND JUMPING RIGHT UP AND 22 LETTING US KNOW. I TELL YOU WHAT, LET'S TAKE A RECESS AND 23 BREAK UNTIL QUARTER TILL, FOR 15 MINUTES OF TESTIMONY, AND 24 THEN WE'LL TAKE OUR LUNCH BREAK. 25 MR. STUTLER: THANK YOU, YOUR HONOR. HENSLEY - DIRECT 13 1 (COURT WAS AT RECESS.) 2 THE CLERK: JURY ENTERING. 3 (THE FOLLOWING OCCURRED IN THE PRESENCE OF THE JURY.) 4 THE COURT: MR. STUTLER. 5 MR. STUTLER: THANK YOU, YOUR HONOR. 6 Q. (BY MR. STUTLER) BEFORE THE BREAK, WE WERE TALKING ABOUT 7 THE COMPANY YOU WORKED FOR, WHICH I'LL CALL SAIC FOR SHORT, 8 WHAT IS SAIC'S BUSINESS? WHAT DO THEY DO? 9 A. PRIMARILY, WE ARE A GOVERNMENT CONTRACTOR, MILITARY 10 GOVERNMENT CONTRACTOR. THE COMPANY WOULD TELL YOU THAT WE DO 11 A LOT OF SCIENCE, AND WE ALSO ARE KNOWN IN THE INDUSTRY AS AN 12 INTERROGATOR, PUTTING VARIOUS TECHNOLOGIES TOGETHER IN SYSTEMS 13 FOR MAJOR CUSTOMERS. 14 Q. HOW MANY EMPLOYEES DOES SAIC HAVE? 15 A. RIGHT NOW, ABOUT 45,000. 16 Q. WHERE IS YOUR OFFICE? WHERE DO YOU WORK OUT OF? 17 A. I'M IN LOS ANGELES. 18 Q. WHAT IS YOUR POSITION? WHAT DO YOU DO? 19 A. AS A CORPORATE VICE-PRESIDENT, I'M PRIMARILY RESPONSIBLE 20 IN THE HOMELAND SECURITY AREA, SPECIFICALLY IN THE AREA OF 21 SEAPORTS AND AIRPORTS. 22 Q. DO YOU DO ANY TRAVELING FOR THAT JOB? 23 A. A GREAT DEAL OF TRAVELING. 24 Q. WHERE HAVE YOU BEEN, SAY, IN THE LAST THREE MONTHS? 25 A. LAST THREE MONTHS, WASHINGTON, D.C., NUMEROUS TIMES, HONG HENSLEY - DIRECT 14 1 KONG, AND PANAMA. 2 Q. YOU MENTIONED EARLIER THAT THE GOVERNOR HAD APPOINTED YOU 3 TO A COMMISSION, THE STATE OF CALIFORNIA'S GOVERNOR? 4 A. YES. 5 Q. WHAT WAS THAT COMMISSION? 6 A. THAT WAS THE CALIFORNIA GAMBLING CONTROL COMMISSION. 7 Q. WHAT DID YOU DO FOR THAT COMMISSION? 8 A. THAT COMMISSION OVERSAW THE INDIAN CASINOS, RACETRACKS, 9 AND THE CARD ROOMS IN CALIFORNIA. 10 Q. THERE'S BEEN SOME TALK -- SOME TESTIMONY REGARDING 11 AWARDS; FOR EXAMPLE, MS. NUNN WON AN AWARD FOR OPERATION POLAR 12 BEAR, POLAR CAP, CAN YOU TELL US -- THE JURY WHAT MAJOR AWARDS 13 YOU ACHIEVED WITH THE GOVERNMENT. 14 A. PROBABLY 30, THE SENIOR EXECUTIVE SERVICE RANK AWARD, 15 WHICH IS THE HIGHEST AWARD GIVEN TO SENIOR EXECUTIVES IN THE 16 FEDERAL SERVICE. THE MILITARY'S EAGLE AWARD, WHICH IS THE 17 HIGHEST CIVIL AWARD GIVEN. TWO HEROISM AWARDS FROM THE 18 CUSTOMS SERVICE FOR TWO DIFFERENT INCIDENTS, ONE BEING THE 19 OKLAHOMA CITY BOMBING, THE OTHER WAS AN INCIDENT IN A 20 NARCOTICS CASE ON THE BORDER IN THE EARLY 70S, AND THE 21 TREASURY DEPARTMENT HUMANITARIAN AWARD ARE AMONG THE AWARDS I 22 RECEIVED. 23 Q. WHAT HAPPENED AT THE BORDER? 24 A. IT WAS A SHOOT-OUT OVER A LOAD OF NARCOTICS. 25 Q. YOU WERE INVOLVED IN THAT? HENSLEY - DIRECT 15 1 A. YES. 2 Q. LET'S TALK ABOUT SOME OF THE SUBJECTS IN THIS CASE. 3 FIRST, I WANT TO TURN TO A PROMOTION OF TWO SPECIAL AGENTS IN 4 1996, BEING SPECIAL AGENT PETTIBONE AND SPECIAL AGENT JOHNSON. 5 ARE YOU FAMILIAR WITH THAT? 6 A. YES. 7 Q. WOULD YOU TELL ME WHAT THE PROCESS WAS AS IT WAS SET UP 8 FOR PROMOTIONS IN THE SUMMER OF 1996. 9 A. THE PROCESS CHANGED IN THE SUMMER OF 1996. IT HAD 10 PREVIOUSLY BEEN A DIFFERENT SYSTEM WHERE THE AGENTS WROTE UP 11 THEIR REQUIREMENTS, APPLIED FOR A JOB, AND THEN IT WAS 12 REVIEWED BY SUPERVISORS, BY PERSONNEL, AND THEN THERE WAS A 13 RANKING. THERE WAS A NEW SYSTEM APPLIED THAT WAS CREATED BY 14 THE PERSONNEL DIVISION, THE HR DIVISION, AND IN THAT 15 PARTICULAR FIRST ITERATION THE EMPLOYEES CALLED IN TO A 16 TELEPHONE SYSTEM AND BASICALLY GAVE EXPERIENCE, 17 QUALIFICATIONS, SUBJECTIVELY, TO A SYSTEM, WHICH ASSIGNED 18 POINTS FOR THOSE PARTICULAR EXPERIENCES. 19 Q. WAS THE FIRST TIME THAT SYSTEM WAS USED FOR THE OCTOBER 20 1996 SELECTIONS? 21 A. YES, IT WAS. 22 Q. WAS THE SYSTEM ACTUALLY APPLIED AS IT WAS DESIGNED? 23 A. NO, IT WAS NOT. 24 Q. WHAT HAPPENED? 25 A. THE FIELD MANAGERS HAD NOT BEEN ALLOWED TO SEE THE SYSTEM HENSLEY - DIRECT 16 1 OR TEST THE SYSTEM, AND WHEN THE SYSTEM CAME OUT, IMMEDIATELY 2 THE SUPERVISORS ACROSS THE COUNTRY EXPRESSED GRAVE CONCERNS 3 ABOUT NO MANAGERIAL INPUT AND THE AMOUNT OF VARIANCES IN THE 4 EXPERIENCE BEING CLAIMED BY VARIOUS APPLICANTS, AND SO THERE 5 WAS A REVIEW BY SUPERVISORS TO QUALIFY THE EXPERIENCE OF THE 6 INDIVIDUALS. 7 Q. YOU MEAN THERE WAS A CONCERN THAT, FOR EXAMPLE, AN AGENT 8 WHO HAD NOT ACTUALLY SUBMITTED A PROPOSAL AS A CASE AGENT ON A 9 WIRETAP OPERATION MIGHT PUT THAT SHE HAD? 10 A. YES, THAT'S CORRECT. THAT'S TRUE. 11 Q. AND THERE WAS NO VERIFICATION FOR IT AS IT WAS SET UP? 12 A. THAT'S CORRECT. 13 Q. WHO MADE THE CHANGE? HOW WAS THAT CHANGED? 14 A. IT WAS ACTUALLY CHANGED OUT OF WASHINGTON, AND EACH OF 15 THE FIELD OFFICES WAS THEN ALLOWED TO MODIFY IT AND VALIDATE 16 THE INFORMATION GIVEN. 17 Q. AND WERE YOU TOLD HOW TO VALIDATE IT, WHAT PROCEDURE TO 18 USE? 19 A. I DON'T REMEMBER THE SPECIFICS, OTHER THAN THAT WE DID 20 VALIDATE IT. WE APPOINTED TEAMS OF SUPERVISORS TO LOOK AT THE 21 INFORMATION SUBMITTED, AND THEN I ACTUALLY INTERVIEWED THE 22 EMPLOYEES CONCERNED. 23 Q. DID YOU SAY YOU WOULD ACTUALLY INTERVIEW THE EMPLOYEES? 24 A. I DID NOT, THE SUPERVISORS IN THE SPECIFIC JURISDICTION 25 WHERE THE EMPLOYEE WAS WORKING. HENSLEY - DIRECT 17 1 Q. DID YOU APPOINT PEOPLE WHO WERE GOING TO BE ON THESE 2 INTERVIEW PANELS? 3 A. I ASKED THAT THE PANELS BE SET UP. I DON'T BELIEVE I 4 ACTUALLY SELECTED THE ACTUAL PEOPLE. 5 Q. WHO WAS INVOLVED IN THAT PROCESS? 6 A. IT WAS AT THE ASSOCIATE SAIC LEVEL, AND THE ASSISTANT 7 SAIC LEVEL, AND THEY THEN, I THINK, ALSO ASKED GROUP 8 SUPERVISORS TO SIT ON THOSE PANELS. 9 Q. WAS IT THE ASSOCIATE SAIC WHO ACTUALLY DECIDED WHO WAS 10 GOING TO BE ON THE PANELS? 11 A. YES. 12 Q. WOULD THAT HAVE BEEN STEVE WOODY? 13 A. YES, IT WAS. 14 Q. DID YOU TALK WITH MR. WOODY BEFORE HE EMPANELED THE 15 MEMBERS TO TELL HIM YOUR PREFERENCES ON WHO SHOULD BE ON THE 16 PANELS? 17 A. NO, HE HAD NO ROLE IN SELECTING THE PEOPLE ON THE PANELS. 18 Q. DID YOU EXPRESS TO MR. WOODY OR ANY OF THE PANEL MEMBERS, 19 EITHER BEFORE OR AFTER THE INTERVIEWS, WHETHER YOU HAD A 20 PREFERENCE FOR THEM RECOMMENDING MEN OR WOMEN? 21 A. NO, I DID NOT. 22 Q. DID YOU PERSONALLY KNOW WHO WAS APPLYING FOR THE 23 PROMOTIONS IN RAIC RIVERSIDE? 24 A. NO, I DIDN'T. 25 Q. DO YOU KNOW WHO WAS ON THE PANEL FOR RAIC RIVERSIDE? HENSLEY - DIRECT 18 1 A. I THINK DENNIS SHINTANI MAY HAVE BEEN ONE OF THE PANEL 2 MEMBERS. HE WAS THE ADMINISTRATIVE ASAC AND WAS OVER MOST OF 3 THE ADMINISTRATIVE PROCESSES. BEYOND THAT, I'M NOT SURE WHO 4 WOULD HAVE BEEN ON IT. 5 Q. THERE WAS TESTIMONY THAT MR. SHINTANI, DENITA KEMPFER, 6 AND PAT SCHULTE WERE ON THE PANELS; DOES THAT REFRESH YOUR 7 RECOLLECTION? 8 A. I STILL WOULDN'T KNOW FOR SURE WHICH PANEL THEY WERE ON. 9 Q. WHOEVER WAS ON THE PANEL FOR RAIC RIVERSIDE, DID THEY 10 MAKE A RECOMMENDATION AS TO WHO SHOULD BE PROMOTED IN RAIC 11 RIVERSIDE? 12 A. THEY MADE THEIR RECOMMENDATIONS UP THROUGH THE CHAIN OF 13 COMMAND. 14 Q. WHO DID THEY RECOMMEND? 15 A. I DON'T REMEMBER. 16 Q. IF I TOLD YOU IT WAS SPECIAL AGENT JAY PETTIBONE AND 17 PERRY JOHNSON, DOES THAT REFRESH YOUR RECOLLECTION? 18 A. YES, IT WOULD. 19 Q. THEY WERE THE ONES THEY RECOMMENDED? 20 A. YES. 21 Q. AT SOME POINT, AFTER THE INTERVIEWS, DID YOU MEET WITH 22 ANY OF THE INTERVIEWERS TO DISCUSS THEIR RECOMMENDATIONS? 23 A. I MET WITH THE ASSOCIATE SAIC AND ASSISTANT SPECIAL AGENT 24 IN CHARGE, NOT SPECIFICALLY THE PANEL MEMBERS. 25 Q. WOULD THAT INCLUDE MR. SHINTANI? HENSLEY - DIRECT 19 1 A. YES, IT WOULD. 2 Q. DO YOU REMEMBER ANY OF THE DISCUSSIONS CONCERNING THE 3 RAIC RIVERSIDE PROMOTIONS? 4 A. OTHER THAN THEY MADE A JUSTIFICATION WHY THOSE TWO SHOULD 5 BE THE SELECTED PARTIES FROM RIVERSIDE? 6 Q. WAS THE GENDER OF ANY OF THE APPLICANTS EVER DISCUSSED 7 DURING THIS PROCESS? 8 A. NO, IT WAS NOT. 9 Q. AS FAR AS YOU KNOW, WAS THE GENDER A FACTOR IN ANY OF THE 10 RECOMMENDATIONS? 11 A. NO, IT WAS NOT. 12 Q. DID YOU KNOW MS. FITZGERALD AS OF THE TIME OF THE 13 SELECTIONS IN LATE 1996? 14 A. NO, I DID NOT. 15 Q. PHYSICALLY, WHERE DID YOU WORK WHEN YOU WERE THE SAIC IN 16 LOS ANGELES? 17 A. AT SAN PEDRO, CALIFORNIA. 18 Q. BY THE WAY, I'M NOT SURE IF I ASKED YOU, BUT IS THAT 19 WHERE YOU ARE CURRENTLY WORKING, IN SAN PEDRO? 20 A. THAT'S ONE OF THE PLACES I WORK, YES, AT THE SEAPORT. 21 Q. DO YOU WORK OUT OF THE SAN DIEGO SAIC NOW? 22 A. NO, I DO NOT. 23 Q. AT SOME POINT DID YOU BECOME AWARE THAT MS. FITZGERALD 24 WAS INVOLVED IN THE EEO PROCESS? 25 A. AT SOME POINT I DID. HENSLEY - DIRECT 20 1 Q. WHEN DID YOU BECOME AWARE OF THAT? 2 A. I BELIEVE WHEN I WAS ASKED TO FILL OUT AN AFFIDAVIT. 3 Q. WERE HER CLAIMS A BIG DEAL TO YOU? 4 A. NO. 5 Q. DID YOU EVER DISCUSS -- LET ME ASK YOU, WHAT ARE YOUR 6 VIEWS ON EMPLOYEES WITH CUSTOMS WHO FILE EEO COMPLAINTS? 7 A. WELL, THEY CERTAINLY HAVE A RIGHT TO USE THE SYSTEM. 8 IT'S A VERY STRUCTURED SYSTEM. THERE'S A LOT OF REQUIREMENTS 9 ON MANAGEMENT. THERE'S ALSO A LOT OF REQUIREMENTS ON THE 10 EMPLOYEES TO FULFILL THE PROCESS. IT HAS APPEALS. IT HAS 11 INFORMAL HEARINGS. IT HAS A LOT OF PROCESS TO IT, AND SO 12 MANAGERS ARE WELL AWARE OF THAT PROCESS AND WE WORK WITH IT. 13 Q. DID ANY OF THE EEO ALLEGATIONS OF EITHER MS. FITZGERALD 14 OR MS. NUNN ANGER YOU? 15 A. NO. 16 Q. DID THEY OFFEND YOU? 17 A. NO. 18 Q. DID THEY CAUSE YOU PERSONAL CONCERN? 19 A. NO, THEY DID NOT. 20 Q. DID YOU PERCEIVE THEM AS A THREAT TO EITHER YOU OR YOUR 21 CAREER? 22 A. NO, I DID NOT. 23 Q. DID YOU PERCEIVE THEM AS A THREAT THAT MIGHT BRING DOWN 24 THE SAIC OFFICE IN LOS ANGELES? 25 A. ABSOLUTELY NOT. HENSLEY - DIRECT 21 1 Q. DID YOU EVER DISCOURAGE EITHER OF THEM, EITHER DIRECTLY 2 OR INDIRECTLY, FROM BEING INVOLVED IN THE EEO PROCESS? 3 A. NO, I DID NOT. 4 Q. DID YOU DIRECT OR ASK ANYONE ELSE TO DO THAT? 5 A. NO, I DID NOT. 6 Q. ARE YOU AWARE OF ANYBODY DOING THAT? 7 A. NO. 8 Q. DID YOU DO ANYTHING TO PERSUADE THEM TO WITHDRAW FROM THE 9 PROCESS? 10 A. NO, I DID NOT. 11 Q. DID YOU DIRECT OR ASK ANYBODY ELSE TO DO THAT? 12 A. NO, I DID NOT. 13 Q. ARE YOU AWARE OF ANYBODY DOING THAT? 14 A. NO. 15 Q. DID YOU DO ANYTHING TO RETALIATE AGAINST EITHER MS. 16 FITZGERALD OR MS. NUNN FOR THEIR EEO ACTIVITIES? 17 A. NO, I DID NOT. 18 Q. DID YOU DIRECT OR ASK ANYBODY ELSE TO DO THAT? 19 A. NO, I DID NOT. 20 Q. ARE YOU AWARE OF ANYBODY ELSE DOING THAT? 21 A. NO. 22 Q. THERE'S BEEN TESTIMONY THAT GARY PINKAVA BECAME THE RAIC 23 RIVERSIDE SUPERVISOR IN JANUARY OF 1997; DO YOU KNOW WHO MR. 24 PINKAVA IS? 25 A. YES, I DO. HENSLEY - DIRECT 22 1 Q. WAS HE YOUR SELECTION? 2 A. HE WAS ACTUALLY A HEADQUARTERS SELECTION, A ROTATION INTO 3 THE DISTRICT. 4 Q. DID YOU KNOW HIM BEFORE HE WAS SELECTED? 5 A. NO, ONLY ON PAPER. 6 Q. EVEN THOUGH YOU DIDN'T SELECT HIM, DID YOU AGREE WITH IT 7 OR CONCUR WITH IT? 8 A. YES. HIS BACKGROUND LOOKED FINE TO US, SO WE ACCEPTED 9 HIM. 10 Q. BEFORE MR. PINKAVA TOOK OVER AT RAIC RIVERSIDE IN JANUARY 11 OF 1997, DID YOU DISCUSS WITH HIM THE PROBLEMS OF ANY SPECIFIC 12 EMPLOYEES IN THAT OFFICE? 13 A. NO, I DIDN'T. 14 Q. DID YOU EVER DISCUSS MS. FITZGERALD WITH HIM BEFORE HE 15 STARTED? 16 A. NO. 17 Q. ONE OF THE ALLEGATIONS IN THIS CASE -- 18 MR. STUTLER: YOUR HONOR, ANY TIME THAT'S APPROPRIATE 19 TO BREAK. CAN I START WITH THE NEXT TOPIC? 20 THE COURT: WHY DON'T YOU GO ON A LITTLE LONGER. 21 MR. STUTLER: OKAY. 22 Q. LET'S TALK ABOUT ONE OF THE ALLEGATIONS IN THIS CASE AND 23 THAT WAS THE ASSIGNMENT OF A VEHICLE -- OR THE LATE 24 ASSIGNMENT, IN MS. FITZGERALD'S WORDS, OF A VEHICLE IN JUNE OF 25 1997. ARE YOU AWARE THAT THAT ALLEGATION HAS BEEN MADE? HENSLEY - DIRECT 23 1 A. YES, I AM. 2 Q. WHEN YOU ARRIVED IN LOS ANGELES AS THE SPECIAL AGENT IN 3 CHARGE, AND TELL ME AGAIN WHEN THAT WAS. 4 A. THAT WAS SPRING OF 1996. 5 Q. WHEN YOU ARRIVED IN SPRING OF 1996, HOW WERE CAR 6 ASSIGNMENTS MADE? 7 A. AT THE TIME I CAME INTO THE OFFICE, IT WAS, IN MY TERM, 8 HELTER SKELTER. IT WAS KIND OF A -- SENIOR AGENTS GET TO TAKE 9 THE NEW CARS, AND THEN IF -- AT THE END OF THE YEAR, IF THEY 10 DIDN'T LIKE THAT CAR, THEY WOULD PASS THEM DOWN TO THE MORE 11 JUNIOR AGENTS. TO ME IT DID NOT PRESENT A PROFESSIONAL WAY TO 12 HANDLE THE CAR ASSIGNMENTS. THE VEHICLES SHOULD BE BETTER 13 TAKEN CARE OF, AND THEY SHOULD BE SPREAD OUT MORE EVENLY AMONG 14 THE AGENT CORPS. SO I CHANGED THE SYSTEM TO AN ASSIGNMENT 15 SYSTEM WHERE THE INDIVIDUALS WHO GOT THE CAR KEPT THE CAR 16 UNTIL ITS TERMINAL MILEAGE, WHICH WAS USUALLY AROUND THE 17 100,000 MILE LEVEL. 18 Q. WHAT'S WRONG WITH THE OLD "RANK HAS ITS PRIVILEGES" 19 THING, WHERE THE SENIOR OFFICERS GET THE CARS FIRST? 20 A. I DIDN'T THINK IT WAS GOOD FOR MORALE OR GOOD FOR THE 21 FLEET. IT DISCOURAGED TAKING CARE OF THE VEHICLES, WHICH WERE 22 IN SHORT SUPPLY, AND WE NEEDED EVERY CAR WE COULD KEEP ON THE 23 STREET. 24 Q. AS THE SAIC, DID YOU PERSONALLY ADMINISTER THAT SYSTEM? 25 A. I ASSIGNED IT TO AN ADMINISTRATIVE SENIOR SPECIAL AGENT, HENSLEY - DIRECT 24 1 JUDY HOFFMAN, TO ADMINISTER. I ROUTINELY WENT OVER THE 2 ASSIGNMENTS, SAY, ONCE A QUARTER WITH JUDY. 3 Q. WHO WOULD HAVE THE FINAL SAY AS TO ASSIGNMENTS? 4 A. FINAL SAY WOULD BE MYSELF. 5 Q. DO YOU KNOW ANYTHING ABOUT THE ASSIGNMENT OF THE VEHICLE 6 TO MS. FITZGERALD IN AROUND MAY -- EXCUSE ME, SPRING OR SUMMER 7 OF 1997? 8 A. YES, I DO. 9 Q. WHAT DO YOU KNOW ABOUT THAT? 10 A. WE ASSIGNED CARS BASED UPON THE MILEAGE. MS. HOFFMAN 11 WOULD MAKE RECOMMENDATIONS TO ME BASED UPON THE SPREAD OF CARS 12 OVER THE FIVE RAIC OFFICES, THE INTELLIGENCE OFFICE, AND THE 13 MAIN SPECIAL AGENT IN CHARGE OFFICE AT SAN PEDRO, CALIFORNIA. 14 THE CARS CAME TO US ON AN ANNUALIZED BASIS. WE NEVER KNEW HOW 15 MANY CARS WE WERE GETTING. WE WOULD GET THEM IN QUARTERLY 16 ALLOTMENTS. NORMALLY, ONCE A QUARTER WE WOULD MEET, LOOK AT 17 THE MILEAGES ON THE CARS, WHO WAS ASSIGNED TO THAT CAR, AND 18 DECIDE, BASED UPON THE MILEAGE AND TIME IN THAT VEHICLE, WHO 19 WOULD BE GETTING THE NEW CARS. 20 AND SO IN THAT PARTICULAR TIME PERIOD MS. CATALAN'S 21 VEHICLE WAS IN THAT MILEAGE ZONE, SO WE ASSIGNED HER A NEW CAR 22 BASED UPON THE ARRIVAL INFORMATION WE GOT, AND THAT'S IN 23 ADVANCE OF THE ACTUAL CARS GETTING THERE. 24 Q. THERE'S BEEN TESTIMONY AND EVIDENCE IN THIS CASE THAT MS. 25 FITZGERALD DID EXPERIENCE PROBLEMS WITH HER CAR AROUND MAY OR HENSLEY - DIRECT 25 1 JUNE OF 1997, THERE WERE SOME REPAIRS DONE TO THE CAR, AND IT 2 WAS REPLACED SUBSEQUENTLY. WHEN AN AGENT HAS A CAR THAT IS 3 AGING, IS GOING TO BE GETTING A NEW CAR WITHIN A FEW WEEKS, 4 AND THAT CAR IS TEMPORARILY REPAIRABLE, IS IT APPROPRIATE OR 5 INAPPROPRIATE FOR THE SUPERVISOR TO AUTHORIZE REPAIR? 6 A. THE SUPERVISORS AT THE RAIC LEVEL HAD THE AUTHORITY TO 7 SPEND UP TO $500. ABOVE THAT, THEY HAD TO COME TO US FOR 8 PERMISSION. THEY COULD SPEND UP TO $500 ON REPAIRS OF 9 VEHICLES WITHIN THEIR FLEET. THEY ALSO HAD POOL CARS. THEY 10 MAY OR MAY NOT HAVE BEEN AVAILABLE. THEY ALSO HAD POOL CARS 11 THAT COULD BE USED FOR SHORT PERIODS OF TIME, IN CASE A CAR 12 WAS IN FOR REPAIRS, TO LET SOMEBODY DRIVE A CAR. 13 Q. WERE THERE ALWAYS POOL CARS AVAILABLE AT EACH RAIC 14 OFFICE? 15 A. NOT NECESSARILY AT EACH RAIC OFFICE. THEY MIGHT HAVE 16 BEEN USED, BUT WE DID HAVE A FEW CARS ALSO AT THE SPECIAL 17 AGENT IN CHARGE OFFICE IN SAN PEDRO THAT COULD BE ASKED FOR, 18 IF NECESSARY. 19 Q. IF NO POOL CARS WERE AVAILABLE OR WERE NOT A VIABLE 20 OPTION, AND REPAIRS WERE NOT A VIABLE OPTION, WHAT'S THE NEXT 21 OPTION? 22 A. THE NEXT OPTION WOULD BE TO PAIR UP WITH ANOTHER AGENT 23 UNTIL THE CAR WAS AVAILABLE. 24 Q. IN MAY OR JUNE, '97, WERE YOU EVEN AWARE THAT MS. 25 FITZGERALD WAS HAVING PROBLEMS WITH HER CAR? HENSLEY - DIRECT 26 1 A. NO, I WASN'T. 2 Q. I'M GOING TO TALK REAL BRIEFLY ABOUT AN ISSUE REGARDING 3 THE CAAP SCORES IN THE FALL OF 1997. DO YOU HAVE ANY 4 INFORMATION OR KNOWLEDGE WHETHER OR NOT, FOR THOSE PARTICULAR 5 CAAP SCORES, AN AGENT WHO HAD NOT ATTENDED UNDERCOVER TRAINING 6 COULD RECEIVE CREDIT FOR UNDERCOVER WORK? 7 A. GENERALLY, THEY WOULD NOT BE ALLOWED CREDIT. THE SERVICE 8 HAD A VERY STRICT RULE ON UNDERCOVER WORK AND SO IN THE LATE 9 '80S A POLICY, INCLUDING A REQUIREMENT FOR SCHOOL, WAS 10 INSTITUTIONALIZED, AND IT INCLUDED A PSYCHOLOGICAL REVIEW. WE 11 HAD THREE CLASSES OF UNDERCOVER, 1, 2 AND 3. 3 BEING 12 ROUTINE/CASUAL, A FEW HOURS IN, SHALL WE SAY, IN A SUPPORT 13 ROLE. YOU DID NOT HAVE TO GO TO UNDERCOVER SCHOOL FOR THAT 14 LEVEL OF WORK. 15 ANYTHING ABOVE THAT, WHERE YOU HAD REPETITIVE ROLES OR 16 WERE IN A DEEP UNDERCOVER ROLE, YOU HAD TO GO THROUGH THE 17 PSYCHOLOGICAL PROCESS AND THEN ATTEND THE SCHOOL, AND EACH 18 PERSON IN THE UNDERCOVER PROCESS ALSO HAD A CONTACT PERSON WHO 19 BASICALLY OVERSAW WHAT THEY WERE DOING IN CASE THERE WERE 20 CERTAIN PSYCHOLOGICAL SYMPTOMS WHICH OCCURRED, WHICH DO OCCUR 21 IN UNDERCOVER AGENTS AT TIMES. 22 Q. YOU MEAN THEY START IDENTIFYING WITH THE BAD GUYS? 23 A. SOMETIMES THEY IDENTIFY WITH THE BAD GUYS. SOMETIMES 24 THEY ACTUALLY ASSUME THE ROLE THEMSELVES THAT THEY'RE PLAYING, 25 AND OTHERS MAY HAVE ALIENATION TO THEIR FAMILIES, VARIOUS HENSLEY - DIRECT 27 1 OTHER PSYCHOLOGICAL SIGNS THAT SHOW THAT THE ROLE IS WEIGHING 2 VERY HEAVILY ON THEM. 3 Q. SO YOU CAN DO SPORADIC UNDERCOVER WORK WITHOUT GOING TO 4 SCHOOL? 5 A. THAT'S CORRECT. 6 Q. FOR EXAMPLE, WOULD IT BE APPROPRIATE FOR AN AGENT, SAY, 7 TO PLAY THE GIRLFRIEND OF ANOTHER AGENT WHO IS ON A CASE, SIT 8 IN THE JACUZZI WITH THE BAD GUYS, EVEN IF SHE WAS NOT AT 9 SCHOOL? 10 A. YES, IF THAT WAS A ONE-TIME, ONE-SHOT DEAL, THAT WOULD BE 11 OKAY. THAT WOULD BE A LEVEL 3. 12 Q. WHAT IF SHE WENT BACK OVER A PERIOD OF TIME, 13 OCCASIONALLY, AND PLAYED THAT ROLE? 14 A. IF IT WAS A CONTINUING ROLE, EVEN THOUGH IT WAS NOT A 15 FULL-TIME UNDERCOVER ROLE, THAT WOULD FALL UNDER CATEGORY 2, 16 AND YOU WOULD HAVE TO GO TO SCHOOL OR HAVE SPECIAL PERMISSION 17 TO PERFORM THAT ON A CASE-BY-CASE BASIS. 18 Q. DID PEOPLE OCCASIONALLY SLIP THROUGH AND DO MORE 19 UNDERCOVER WORK WITHOUT SCHOOLS? 20 A. I'M SURE THEY DID. 21 Q. ONE OF THE OTHER INCIDENTS ALLEGED IN THIS CASE INVOLVED 22 A PAGING INCIDENT IN MARCH OF 1998. THERE'S BEEN TESTIMONY 23 THAT FRANK DAY, AT RAIC RIVERSIDE, HAD PAGED MS. NUNN WHILE 24 SHE WAS AT AN EEO MEETING. 25 LET ME ASK YOU GENERALLY ABOUT YOUR UNDERSTANDING OF HENSLEY - DIRECT 28 1 EEO MATTERS. ARE EMPLOYEES ALLOWED TO TAKE AS MUCH TIME OUT 2 OF THEIR DAY TO DEAL WITH EEO MATTERS? 3 A. THE POLICY OF THE SERVICE IS A REASONABLE AMOUNT OF TIME 4 CAN BE TAKEN. THE SERVICE, BASICALLY BECAUSE THERE IS A 5 MISSION TO ACCOMPLISH, REQUIRES THE EMPLOYEES NOTIFY THE 6 SUPERVISOR IF THEY'RE TAKING TIME, NOT THE SPECIFICS OF 7 EXACTLY WHAT THEY'RE DOING OR WHO THEY'RE DOING IT WITH, BUT 8 THEY'RE TAKING ADMINISTRATIVE TIME TO PERFORM AN EEO PROCESS 9 OR FUNCTION. 10 Q. IF AN EMPLOYEE DOESN'T NOTIFY THE SUPERVISOR UNTIL AN 11 HOUR BEFORE WORK STARTS THAT SHE'S GOING TO BE ON SOME EEO 12 ACTIVITY, IS IT APPROPRIATE FOR THE SUPERVISOR TO HAVE HER 13 PAGED SIX HOURS LATER IF HE DOESN'T KNOW WHERE SHE IS OR WHEN 14 SHE'S COMING BACK? 15 A. I THINK IT FOLLOWS THE SAME RULES AS ANY OTHER WORK 16 EMPLOYER/EMPLOYEE RELATIONSHIP. CERTAINLY THERE ARE 17 EMERGENCIES IN ANY JOB, BUT NORMALLY IT'S FUNDAMENTAL COURTESY 18 TO TELL YOUR MANAGERS AND SUPERVISORS, IN ANY SITUATION, THAT 19 YOU'RE NOT GOING TO BE THERE OR WHERE YOU'RE GOING TO BE. 20 IT'S THEIR REQUIREMENT TO ANSWER TO UPPER MANAGEMENT FOR THEIR 21 EMPLOYEES. SO CERTAINLY THERE ARE EXCEPTIONS, BUT THE GENERAL 22 RULE IS YOU HAVE TO NOTIFY YOUR SUPERVISOR, WHO IS GOING TO BE 23 WONDERING WHERE IN THE HECK YOU ARE. 24 Q. AND MAYBE NOT A SPECIFIC RULE BUT YOU'RE SAYING COMMON 25 COURTESY TO YOUR BOSS? HENSLEY - CROSS/BEBI 29 1 A. YES. 2 Q. ONE OF THE BIG THINGS THAT ARE BEING COMPLAINED ABOUT 3 HERE IS THE ALLEGED TORPEDOING OR HINDRANCE OF MS. 4 FITZGERALD'S RAIL PROJECT BEGINNING ABOUT APRIL OF 1998. I 5 WANT TO TALK ABOUT THAT, AND SPECIFICALLY HER CLAIM THAT AT 6 CUSTOMS, AND YOU SPECIFICALLY, HAD RETALIATED AGAINST HER BY 7 TORPEDOING HER EFFORTS TO INTERDICT DRUGS AND ARREST DRUG 8 SMUGGLERS. 9 YOU WERE A POLICE OFFICER FOR HOW MANY YEARS? 10 A. THIRTY-THREE, 34 YEARS. 11 Q. WHEN YOU WERE THE SPECIAL AGENT IN CHARGE, YOU WERE THE 12 TOP LAW ENFORCEMENT OFFICER OF CUSTOMS FOR HOW MANY COUNTIES? 13 A. ALL OF CENTRAL CALIFORNIA, WHICH WAS I BELIEVE SEVEN 14 COUNTIES OR EIGHT COUNTIES, AND THE SOUTHERN PORTION OF 15 NEVADA, INCLUDING LAS VEGAS. 16 Q. SO YOUR JURISDICTION SPANNED THE BORDER OF TWO STATES? 17 A. YES. 18 Q. HOW MANY SPECIAL AGENTS AND LAW ENFORCEMENT OFFICERS AND 19 NON -- 20 A. I BELIEVE A LITTLE OVER 200. 21 Q. PRIOR TO THAT YOU WERE THE ASSISTANT REGIONAL 22 COMMISSIONER OF ENFORCEMENT? 23 A. AT SOMETIME PREVIOUS, YES, I GUESS IT WAS ABOUT 10 YEARS 24 PREVIOUS. 25 Q. AND HOW MANY -- HENSLEY - CROSS/BEBI 30 1 A. EIGHT YEARS PREVIOUS. 2 Q. HOW MANY DID YOU HAVE JURISDICTION OVER? 3 A. I HAD SEVEN STATES AND THE PACIFIC. 4 Q. WHEN YOU LEARNED THAT ONE OF THE 160 OR SO SPECIAL AGENTS 5 UNDER YOU WAS COMPLAINING ABOUT NOT BEING PROMOTED, WERE YOU 6 WILLING TO THROW THAT ALL AWAY BY TORPEDOING HER CASES? 7 A. ABSOLUTELY NOT. 8 Q. CAN YOU SUMMARIZE FOR THE JURY CUSTOMS' MISSION FOR 9 SMUGGLING DRUGS AND OTHER ILLEGAL CONTRABAND INTO THE COUNTRY. 10 A. I'M SORRY? 11 Q. CAN YOU SUMMARIZE WHAT CUSTOMS' MISSION WAS REGARDING THE 12 SMUGGLING OF DRUGS AND OTHER CONTRABAND. 13 A. YES. THE MISSION OF THE CUSTOMS SERVICE WAS TO INTERDICT 14 ALL CONTRABAND COMING INTO THE UNITED STATES AND TO 15 PROSECUTE -- TO IDENTIFY AND PROSECUTE THE VIOLATORS AND 16 OFFENDERS. WE HAD AN ADDITIONAL MISSION OF PROTECTING THE 17 REVENUE OF THE UNITED STATES. 18 Q. WHEN YOU JOINED CUSTOMS SOME 25 YEARS OR SO BEFORE MS. 19 FITZGERALD FIRST STARTED COMPLAINING ABOUT NOT BEING PROMOTED, 20 DID YOU TAKE AN OATH TO SUPPORT AND DEFEND THE CONSTITUTIONAL 21 LAWS OF THE UNITED STATES? 22 A. YES, I DID. 23 Q. WERE YOU SO UPSET ABOUT HER COMPLAINT ABOUT NOT BEING 24 PROMOTED THAT YOU WOULD FORSAKE THAT SACRED OATH AND YOUR 25 25 YEARS OF LAW ENFORCEMENT EXPERIENCE BY THE -- LETTING THE DRUG HENSLEY - CROSS/BEBI 31 1 CARTEL SMUGGLE THEIR DEADLY CARGO INTO THIS COUNTRY? 2 A. NO. 3 Q. DID YOU EVEN BELIEVE HER COMPLAINT HAD ANY MERIT? 4 A. WHEN I FINALLY SAW THE COMPLAINT, NO, I DID NOT. 5 Q. JUST TO MAKE SURE THAT WE'RE CRYSTAL CLEAR ON THIS, DID 6 YOU EVER INTERFERE WITH DARLENE FITZGERALD'S INVESTIGATIONS IN 7 ORDER TO RETALIATE AGAINST HER FOR HER EEO ACTIVITIES? 8 A. NO, I DID NOT. 9 Q. DID YOU EVER INTERFERE WITH HER INVESTIGATIONS FOR ANY 10 OTHER REASON? 11 A. NO, I DID NOT. 12 Q. LET'S FOCUS ON ONE OF HER CASES, T&L INTERNATIONAL -- 13 THE COURT: I TELL YOU WHAT, SINCE YOU'RE GOING TO 14 SHIFT GEARS, MR. STUTLER, NOW WOULD PROBABLY BE A GOOD TIME TO 15 TAKE OUR LUNCH BREAK, SO WHY DON'T WE DO THAT. 16 LADIES AND GENTLEMEN, ACCORDING TO MY WATCH IT'S 17 QUARTER AFTER 12. PLEASE BE BACK AT QUARTER AFTER 1. 18 REMEMBER MY ADMONITION NOT TO DISCUSS THE CASE AMONG 19 YOURSELVES OR WITH ANYONE. DO NOT DO ANY INDEPENDENT 20 RESEARCH. DO NOT FORM ANY OPINIONS OR CONCLUSIONS ABOUT THE 21 CASE UNTIL THE CASE HAS BEEN COMPLETED. 22 MR. HENSLEY, YOU MAY STEP DOWN. 23 THE WITNESS: THANK YOU. 24 (COURT WAS AT RECESS.) 25 HENSLEY - CROSS/BEBI 32 1 AFTERNOON SESSION 2 3 THE COURT: WELCOME BACK. 4 OKAY, MR. HENSLEY, YOU'RE STILL UNDER OATH. 5 Q. (BY MR. STUTLER) MR. HENSLEY, ARE YOU FAMILIAR WITH THE 6 SEIZURE OF A RAIL CAR WITH ABOUT 8,000 POUNDS OF MARIJUANA AND 7 COCAINE IN RIVERSIDE IN SPRING OF 1998? 8 A. YES, I AM. 9 Q. AND THERE'S BEEN TESTIMONY HERE THAT MS. FITZGERALD -- 10 YOU MAY HAVE KNOWN HER AS MS. CATALAN AT THE TIME -- WAS THE 11 CASE AGENT FOR THAT CASE. DID YOU EVER INTERFERE WITH HER 12 INVESTIGATION OF THE RAIL CAR CASE? 13 A. NO, I DID NOT. 14 Q. WERE YOU INVOLVED IN THE DECISION TO TERMINATE THE 15 CONTROLLED DELIVERY OF THE TANKER CAR IN APRIL OF 1998? 16 A. I WAS ADVISED OF IT, BUT I DIDN'T MAKE THAT DECISION. 17 Q. THAT WOULD HAVE BEEN MADE AT A LEVEL LOWER THAN YOU? 18 A. YES. 19 Q. WHAT WAS YOUR -- WHAT IS YOUR UNDERSTANDING OF HOW MANY 20 ARRESTS AND INDICTMENTS AROSE OUT OF THAT RAIL CASE? 21 A. AS I REMEMBER, THERE WERE NO ARRESTS AND INDICTMENTS. IT 22 WAS A LARGE SEIZURE, MOSTLY MARIJUANA. THERE WAS SOME COCAINE 23 IN THE SEIZURE, BUT THE CASE AND THE FOLLOWING INVESTIGATION 24 DID NOT ACTUALLY TURN UP THE PEOPLE INVOLVED IN IT. 25 Q. THERE'S BEEN TESTIMONY THAT ONE MAN NAMED RAOUL LOPEZ WAS HENSLEY - CROSS/BEBI 33 1 ARRESTED IN CONNECTION WITH THAT. DOES THAT REFRESH YOUR 2 RECOLLECTION? 3 A. I DON'T REMEMBER. I JUST REMEMBER THERE WERE NO ARRESTS 4 AT THE TIME. 5 Q. DID YOU EVER DEVELOP AN UNDERSTANDING THAT MORE ARRESTS 6 OR INDICTMENTS WOULD BE FORTHCOMING? 7 A. INITIALLY, THERE WAS A VERY HIGH EXPECTATION THAT THERE 8 WOULD BE MORE ARRESTS. IN FACT, WE AUTHORIZED THE PURSUIT OF 9 FOUR OTHER RELATED RAIL CARS BY OTHER OFFICES THROUGHOUT THE 10 COUNTRY IN HOPES THAT WE COULD TIE THEM TO SOME LARGER 11 CONSPIRACY. 12 Q. IS IT FAIR TO SAY THAT YOU ACTUALLY WANTED TO SEE MORE 13 ARRESTS AND INDICTMENTS COME OUT OF THAT? 14 A. OH, ABSOLUTELY. 15 Q. DID YOU EVER PUT ANY PRESSURE ON MR. PINKAVA -- OR MR. 16 PINKAVA, THROUGH MS. BROWN, TO PRODUCE MORE FROM THAT CASE? 17 A. WELL, THE EXPECTATIONS HAD BEEN SUPPLIED TO US THAT THERE 18 WERE MORE ARRESTS AND MORE INDICTMENTS FORTHCOMING, A LARGER 19 INVESTIGATION, A LARGER CRIMINAL ENTERPRISE, AND I KEPT 20 INQUIRING AS TO WHERE THOSE WERE, AND WHAT THE STATUS OF THE 21 CASE WAS, THROUGH THE CHAIN OF COMMAND. 22 Q. WOULD YOU HAVE ENJOYED, AS THE SPECIAL AGENT IN CHARGE, 23 ANY SORT OF BENEFIT HAD MS. FITZGERALD SUCCEEDED IN SECURING 24 ADDITIONAL INDICTMENTS ON THAT CASE? 25 A. WELL, THE OFFICE WOULD HAVE BEEN RECOGNIZED FOR THE WORK. HENSLEY - CROSS/BEBI 34 1 AND LARGER CASES, MORE ARRESTS, MORE INDICTMENTS BRINGS MORE 2 FOCUS ON THE OFFICE FOR MORE RESOURCES. SO I GUESS FROM NOT A 3 DIRECTLY CONNECTED WAY, BUT THERE WOULD HAVE BEEN BENEFITS TO 4 THE OFFICE. 5 Q. IT WOULD HAVE ALSO ADVANCED YOUR MISSION AT CUSTOMS? 6 A. ABSOLUTELY. 7 Q. ONE OF THE ALLEGATIONS CONNECTED WITH THIS WHOLE RAIL CAR 8 CASE WAS THAT IN JANUARY OF 1999 MR. PINKAVA RETALIATED, 9 ALLEGEDLY, BY NOT LETTING MS. FITZGERALD DO SOME PRESSURE 10 TESTING ON TANKER CARS. WERE YOU INVOLVED IN THAT DECISION? 11 A. NO, I WAS NOT. 12 Q. MOVING ON TO MARCH OF 1999, THERE'S BEEN AN ALLEGATION 13 THAT AT A MEETING BETWEEN STEVE COOPER AND AUSA YVETTE 14 PALAZUELOS, IN MARCH OF 1999, THAT MR. COOPER SUGGESTED YOU 15 WERE BEHIND INTERFERING WITH OR AT LEAST NOT PROVIDING 16 RESOURCES FOR MS. FITZGERALD'S TANKER CAR CASE. DO YOU KNOW 17 WHEN MR. COOPER STARTED IN THE RAIC RIVERSIDE OFFICE? 18 A. IT WAS LATE IN MY TENURE AS THE SAIC. HE WAS NOT THERE A 19 LONG TIME BEFORE I RETIRED. 20 Q. DID YOU EVER TALK WITH MR. COOPER ABOUT MS. FITZGERALD'S 21 RAIL CAR CASE? 22 A. NO, I DID NOT. 23 Q. THERE'S ALSO BEEN ALLEGATIONS HERE ABOUT A REQUEST BY A 24 PAT SCHULTE TO MS. FITZGERALD, A REQUEST TO HER TO AT LEAST 25 EXPLAIN AND ALLEGEDLY TO MODIFY HER CLOSED ROIS OR HER HENSLEY - CROSS/BEBI 35 1 APPROVED ROIS. WERE YOU INVOLVED IN ANY DISCUSSION WITH MR. 2 SCHULTE REGARDING THAT? 3 A. NO, I WAS NOT. 4 Q. WHAT ABOUT WITH MS. BROWN? 5 A. NO, I WAS NOT. 6 Q. WITH MR. PINKAVA? 7 A. NO. 8 Q. LET'S SHIFT GEARS AND TALK A LITTLE BIT ABOUT AWARDS AND 9 TRAINING. FIRST UNDERCOVER TRAINING, ARE THERE PRIORITIES IN 10 DECIDING WHO GOES TO UNDERCOVER TRAINING? 11 A. WELL, THERE'S A REQUIREMENT BASED UPON THE NEEDS OF THE 12 SERVICE. FIRST OF ALL, HOW MANY UNDERCOVER PEOPLE DO YOU NEED 13 IN A SPECIFIC OFFICE. HOW MANY SCHOOLS ARE BEING CONDUCTED 14 AND FUNDED IN A GIVEN YEAR. IT'S BASICALLY A NEEDS BALANCING 15 AS TO HOW MANY UNDERCOVER PEOPLE YOU NEED. THE SUPERVISORS 16 THEN MAKE RECOMMENDATIONS. 17 AS I PREVIOUSLY STATED, THERE'S A SCREENING MECHANISM 18 TO MATCH PEOPLE WITH SKILL SETS AND PERSONALITIES THAT WOULD 19 LIKELY WORK WELL IN AN UNDERCOVER ROLE LONG-TERM. 20 Q. DO YOU ALSO CONSIDER WHETHER OR NOT A PARTICULAR OFFICE, 21 RAIC OFFICE, HAS UNDERCOVER ACTIVITIES? 22 A. ABSOLUTELY. 23 Q. AND ARE YOU AWARE -- DO YOU KNOW WHETHER OR NOT RAIC 24 RIVERSIDE HAD ANY UNDERCOVER OPERATIONS GOING BETWEEN NOVEMBER 25 OF 1996 AND SEPTEMBER OF 1999 WHEN MS. FITZGERALD RESIGNED? HENSLEY - CROSS/BEBI 36 1 A. WELL, THERE WERE NO LONG-TERM UNDERCOVER OPERATIONS, THAT 2 I REMEMBER. THERE MAY HAVE BEEN SOME CASUAL UNDERCOVER ROLES, 3 BUT I'M NOT PERSONALLY AWARE OF WHAT THEY WERE. 4 Q. WERE THERE ANY PROPOSALS, THAT YOU WERE AWARE OF, FOR 5 UNDERCOVER OPERATIONS DURING THAT PERIOD FROM RAIC RIVERSIDE, 6 MAJOR ONES? 7 A. NOT THAT I RECALL. 8 Q. WITH RESPECT TO AWARDS, DOES A SAIC OFFICE HAVE UNLIMITED 9 FUNDING FOR AWARDS? 10 A. NO. THE SAIC OFFICE IS GIVEN A BUDGET BY HEADQUARTERS 11 FOR AWARDS. WE DON'T GET A WHOLE LOT OF INPUT INTO THAT 12 AMOUNT. IT'S A DOLLAR AMOUNT BASED ON WHAT THE OVERALL 13 SERVICES BUDGET IS, AND EACH OFFICE -- EACH SUBDIVISION OF THE 14 CUSTOMS SERVICE IS GIVEN A CERTAIN AMOUNT, AND THEN WITHIN 15 THOSE SUBDIVISIONS THE SPECIFIC OFFICES ARE GIVEN AN AMOUNT TO 16 WORK WITH THEIR PERSONNEL. 17 Q. DO YOU HAVE ANY RECOLLECTION DENYING A SPECIFIC AWARD TO 18 MS. FITZGERALD? 19 A. NO, I DON'T. 20 Q. WHAT IS THE PROCESS FOR GETTING AN AWARD? LET'S SAY I'M 21 A GROUP SUPERVISOR AT RAIC AND I FEEL ONE OF MY AGENTS 22 DESERVES AN AWARD, WHAT DO I DO? 23 A. WELL, THERE ARE NUMEROUS AWARD CATEGORIES, FROM 24 SUGGESTIONS THAT ARE -- GOOD SUGGESTIONS FOR IMPROVEMENT OF 25 GOVERNMENT PROCESS. GROUP AWARDS, WHERE IF YOU PARTICIPATED HENSLEY - CROSS/BEBI 37 1 IN AN ACTIVITY, AND YOU WERE ONE OF THE MEMBERS OF THAT GROUP, 2 YOU WOULD GET AN AWARD. THERE ARE INCENTIVE AWARDS. THERE 3 ARE SPECIAL AGENT AWARDS. SUSTAINED SUPERIOR PERFORMANCE 4 AWARDS. THERE'S A VARIETY OF AWARDS. AND THE SUPERVISORS DO 5 TWO THINGS, THEY RECOMMEND THE INDIVIDUALS WITHIN THEIR GROUP, 6 WITH A WRITE-UP, THERE'S A REGULAR FORM THAT'S WRITTEN UP TO 7 RECOMMEND THE INDIVIDUAL, AND THEY ALSO RECOMMEND A DOLLAR 8 AMOUNT OR, IN SOME CASES, A NON-DOLLAR REWARD, SUCH AS EXTRA 9 VACATION DAYS OR DINNER OUT FOR TWO. WE HAD A VARIETY OF WAYS 10 OF RECOGNIZING INDIVIDUALS. 11 IN SOME CASES THERE WERE NO CASH AWARDS WHERE THE 12 INDIVIDUAL WAS RECOGNIZED FOR THEIR CONTRIBUTIONS, BUT IT 13 DIDN'T RISE TO THE LEVEL OF CASH OR WE DIDN'T HAVE THE MONEY. 14 SO THAT WENT UP TO THE NEXT LEVEL, TO THE RAIC OR ASSISTANT 15 SPECIAL AGENT IN CHARGE LEVEL, AND UP TO THE DEPUTY LEVEL. WE 16 THEN LOOKED AT THE AWARDS AS A GROUP, AT THE ASAC AND DEPUTY 17 LEVELS, AND TRIED TO BALANCE THEM OUT WITH THE DOLLARS THAT WE 18 HAD. 19 Q. WAS THERE A PERIOD IN LATE 1990 WHEN YOU MADE A DECISION 20 REGARDING WHETHER ANY AGENTS WOULD BE GOING THROUGH PHYSICAL 21 FITNESS INSTRUCTOR SCHOOL? 22 A. I DON'T REMEMBER IT SPECIFICALLY. 23 Q. I'M GOING TO SHOW YOU EXHIBIT, EXHIBIT BJ. EXHIBIT BJ, 24 WHICH I'M DISPLAYING ON THE SCREEN HERE, IS ADMITTED INTO 25 EVIDENCE, AND IT'S BEEN IDENTIFIED AS THE SEPTEMBER 8, 1999 HENSLEY - CROSS/BEBI 38 1 LETTER OF RESIGNATION FROM MS. FITZGERALD. HAVE YOU EVER SEEN 2 THIS DOCUMENT BEFORE? 3 A. YES, I HAVE. 4 Q. THE LETTER SAYS SHE'S BEEN OFFERED A MORE LUCRATIVE 5 POSITION IN PRIVATE INDUSTRY. DID SHE EVER TELL YOU 6 DIFFERENTLY? 7 A. NO. I NEVER HAD A CONVERSATION WITH HER. 8 Q. SO ALL OF YOUR INFORMATION WHY SHE RESIGNED IS CONTAINED 9 IN THIS LETTER? 10 A. YES. 11 Q. I'M DONE TALKING ABOUT MS. FITZGERALD'S CLAIM. I WOULD 12 LIKE TO TURN NOW TO MS. NUNN'S CLAIMS. 13 THERE'S BEEN TESTIMONY IN THIS CASE THAT IN DECEMBER 14 OF 1997 MS. NUNN PROVIDED A LETTER OF SUPPORT FOR AN EEO 15 COMPLAINT MS. FITZGERALD SUBMITTED IN DECEMBER OF 1997, AND 16 THAT SHORTLY AFTER THAT THE -- EXCUSE ME, THE TESTIMONY'S BEEN 17 IT WAS SUBMITTED TO MS. MORALES' OFFICE ON JANUARY 8, 1998. 18 THERE'S ALSO BEEN TESTIMONY THAT FOUR DAYS LATER, ON JANUARY 19 12, MS. NUNN WAS ASSIGNED TO THE HIDTA TASK FORCE. WERE YOU 20 FAMILIAR WITH HER ASSIGNMENT TO THE HIDTA TASK FORCE? 21 A. YES. 22 Q. LET ME TALK A LITTLE BIT ABOUT THE BACKGROUND OF THIS 23 CASE. FIRST, DO YOU KNOW WHAT THE ACRONYM T-E-C-S STANDS FOR? 24 A. TREASURY ENFORCEMENT COMMUNICATION SYSTEM. 25 Q. WE HAD TALKED WITH MR. SHINTANI ABOUT AN E-MAIL MESSAGE HENSLEY - CROSS/BEBI 39 1 HE SENT OUT ON THAT SYSTEM, AND ARE STATISTICS REGARDING 2 INDIVIDUAL AGENTS' PRODUCTIVITY ALSO ON THAT TECS SYSTEM? 3 A. IT'S A MODULE OF THAT SYSTEM, YES. 4 Q. AND YOU INDICATED YOU BECAME THE SAIC IN LOS ANGELES IN 5 1996? 6 A. I THINK I WAS -- ACTUALLY ARRIVED IN FEBRUARY AND 7 ASSIGNED THE 1ST OF MARCH. 8 Q. ABOUT 1996? 9 A. YES. 10 Q. AND DID YOU THAT YEAR -- IN '96, DID YOU REGULARLY REVIEW 11 THE TECS STATISTICS? 12 A. YES, I DID. 13 Q. WHAT ABOUT THE FOLLOWING YEAR? 14 A. YES. 15 Q. AND DID THE NUMBER OF STATISTICS FOR EITHER OF THE 16 PLAINTIFFS IN THIS CASE, MS. NUNN OR MS. FITZGERALD, STAND OUT 17 TO YOU AT ANY TIME DURING THAT PERIOD? 18 A. THEY WERE AT THE LOW END OF THE PRODUCTIVITY SCALE. 19 Q. LET'S FOCUS ON MS. NUNN. CAN YOU RECALL, IN ALL OF YOUR 20 30 YEARS, OF ANY SPECIAL AGENT ASSIGNED TO RAIC WHO HAD LOWER 21 PRODUCTIVITY FOR A FOUR-YEAR PERIOD THAN MS. NUNN? 22 A. NOT THAT I REMEMBER. 23 Q. WHEN YOU SAW THIS -- DID YOU DISCOVER THIS IN 1996/1997? 24 A. IT WAS ACTUALLY POINTED OUT TO ME BY ONE OF THE 25 SUPERVISORS. I DIDN'T INDEPENDENTLY JUST SEIZE UPON IT. HENSLEY - CROSS/STENNETT 40 1 Q. DO YOU RECALL WHICH SUPERVISOR THAT WAS? 2 A. I BELIEVE IT WAS MR. SHINTANI. 3 Q. WHEN YOU DISCOVERED SHE HAD SUCH LOW STATISTICS -- AND 4 WE'RE TALKING ARRESTS, INDICTMENTS, CONVICTIONS, THAT SORT OF 5 THING? 6 A. SEIZURES. 7 Q. AND SEIZURES? 8 A. AND PENALTIES. 9 Q. WAS SHE LOW IN ALL THOSE CATEGORIES? 10 A. YES. 11 Q. WHEN YOU DISCOVERED THAT, DID YOU DO ANYTHING ABOUT IT? 12 A. I ASKED THE QUESTION OF THE ASAC-LEVEL INDIVIDUALS, BOTH 13 MR. SHINTANI AND I CAN'T REMEMBER THE ASAC THAT HAD 14 JURISDICTION OVER MS. NUNN'S GROUP, BUT I ASKED THEM, YOU 15 KNOW, "WHY NO PRODUCTION, BIG FRAUD CASE, OR WHAT IS SHE 16 WORKING ON?" THE ANSWER WAS, "NO, WE'RE JUST NOT GETTING MUCH 17 PRODUCTIVITY OUT OF HER." 18 Q. WOULD THAT HAVE BEEN MR. GWALTNEY? 19 A. IT MAY HAVE BEEN MR. GWALTNEY. 20 Q. WHEN YOU RECEIVED THAT RESPONSE, DID YOU TAKE ANY ACTION? 21 A. IT WAS DISCUSSED ABOUT HOW TO GET HER PRODUCTIVITY UP. 22 THAT WAS THE NORMAL PROCESS IS TO MAKE AGENTS MORE PRODUCTIVE 23 AND TO -- FOR MR. GWALTNEY IN THIS CASE TO WORK WITH THE GROUP 24 SUPERVISOR TO FIND OUT IF WE COULD FIND THE REASON, ENCOURAGE, 25 HELP, SOMEHOW GET THE AGENT BACK ON TRACK. HENSLEY - CROSS/STENNETT 41 1 Q. AND DID THAT SEEM TO HELP? DID YOU SEE HER NUMBERS START 2 TO GO UP? 3 A. THE NUMBERS DID NOT GO UP. 4 Q. WHAT DID YOU DO NEXT ABOUT THAT, IF ANYTHING? 5 A. AT A CERTAIN TIME OF THE YEAR -- IT USUALLY OCCURS A 6 COUPLE OF TIMES DURING THE YEAR -- WE LOOK AT TRYING TO 7 BALANCE THE GROUPS AND SPREAD THE MANPOWER OUT, ANY NEW 8 STAFFING THAT COMES INTO THE OFFICE WE LOOK AT WHERE TO ASSIGN 9 THOSE. GROUPS DON'T UNIFORMLY GO UP AND DOWN AT THE SAME 10 LEVEL; PEOPLE RETIRE, THEY TRANSFER, THEY GET PROMOTED, THEY 11 RESIGN, SO ONE GROUP MAY HAVE A BIG HOLE IN IT. SO WE LOOK AT 12 BALANCING THE GROUPS AND AT THE SAME TIME TRYING TO MATCH 13 SKILLS OR EXPERIENCES TO MAKE THAT GROUP BETTER. 14 Q. DID YOU APPLY ANY OF THOSE THEORIES OR THOUGHTS TO MS. 15 NUNN'S SITUATION? 16 A. WELL, THERE WAS A DISCUSSION OF FILLING -- WE HAD A 17 REQUEST FROM ONE PARTICULAR GROUP, WHICH WAS THE HIDTA GROUP, 18 AND THAT IS A CUSTOMS GROUP, BUT IT'S NOT LOCATED WITHIN THE 19 SAIC OFFICE, IT'S AT THE HIGH INTENSITY DRUG AND COMMAND 20 CENTER IN DOWNTOWN LOS ANGELES, AND THAT IS A KEY SUPERVISED 21 AREA WITH CUSTOMS ON THE BOARD THAT -- BASICALLY TASK FORCE 22 PURSUES MAJOR NARCOTICS CASES IN THE SOUTHERN CALIFORNIA AREA. 23 Q. WAS THERE -- I'M SORRY, WERE YOU DONE? 24 A. I WAS JUST GOING TO SAY WE HAD A GROUP DOWN THERE, AND IT 25 WAS DOWN TO 33 PERCENT OF ITS STAFFING LEVEL. HENSLEY - CROSS/STENNETT 42 1 Q. WOULD THAT BE 30 PERCENT OF THE PEOPLE THAT CUSTOMS WAS 2 SUPPOSED TO PROVIDE? 3 A. YES. WE HAD A COMMITMENT TO SUPPLY SIX PEOPLE, AND WE 4 HAD TWO LEFT IN THAT PARTICULAR GROUP. 5 Q. WAS THERE A PARTICULAR CUSTOMS ASAC THAT WAS IN CHARGE OF 6 THE HIDTA GROUP? 7 A. YES. 8 Q. WHO WAS THAT? 9 A. LARRY FOWLER. 10 Q. JUST TO PUT ALL THIS IN CONTEXT, HE WAS AN ASAC. I'M 11 POINTING TO HIS POSITION HERE (INDICATING). 12 A. YES. 13 Q. I'M POINTING AT JOINT EXHIBIT 1. 14 SO YOU SAID SO YOU HAD A NEED, YOU WERE DOWN 33 15 PERCENT, YOU UNDERSTOOD, IN THE HIDTA TASK FORCE, AND HAVING 16 SOME PRODUCTIVITY PROBLEMS WITH MS. NUNN, WHAT DID YOU DECIDE 17 TO DO ABOUT THAT? 18 A. WELL, THE HIDTA TASK FORCE IS A PLACE WHERE A LOT OF 19 ARRESTS AND INDICTMENTS AND ACTIVITY OCCUR, AND IT'S THE PLACE 20 THAT WE RUN MOST OF THE COMPLEX CASES IN THE DRUG ARENA. IT'S 21 WHERE THE WIRETAPS OCCUR. IT'S SET UP WITH MAJOR WIRETAP 22 GROUPS. A LOT OF THE MORE COMPLEX, HARD-HITTING CASES ARE RUN 23 OUT OF HIDTA TASK FORCE. 24 Q. DID YOU -- SO DID YOU ACTUALLY TRANSFER HER TO THE HIDTA 25 GROUP? HENSLEY - CROSS/STENNETT 43 1 A. YES. I DISCUSSED IT WITH THE SENIOR STAFF AND WE FELT 2 THAT IT WOULD BE A GOOD PLACE TO PUT SANDY TO GIVE HER MORE 3 EXPERIENCE AND ALSO GET HER STATISTICS UP. 4 Q. WHO WOULD THE SENIOR STAFF BE? 5 A. IT WOULD BE DENNIS SHINTANI, I BELIEVE LORI BROWN, AND 6 MARK GWALTNEY WAS PROBABLY INVOLVED IN THAT. 7 Q. NOW, THIS WAS JANUARY OF 1998. IS IT YOUR UNDERSTANDING 8 THAT MS. BROWN WAS ON BOARD THAT EARLY? 9 A. I MAY BE MISTAKEN. DENNIS SHINTANI. IT WOULD BE STEVE 10 WOODY INSTEAD OF LORI BROWN. 11 Q. THE TESTIMONY IS SHE BECAME ONE OF THE ASSOCIATES IN 12 MARCH OF 1998. IS THAT CONSISTENT WITH YOUR MEMORY? 13 A. YEAH, IT WAS IN THAT TIME FRAME, YES. 14 Q. BEFORE YOU TRANSFERRED MS. NUNN TO THE HIDTA TASK FORCE, 15 DID YOU CONSIDER TERMINATING HER FOR NONPRODUCTION? 16 A. AT THAT PARTICULAR TIME NO. 17 Q. DID YOU CONSIDER TAKING ANY OTHER PUNITIVE ACTION? 18 A. NO. 19 Q. WHAT ABOUT PUTTING HER ON A -- DO YOU KNOW WHAT A PIP IS? 20 A. YES, PERFORMANCE IMPROVEMENT PLAN. 21 Q. WHAT ABOUT THAT? 22 A. THAT'S REALLY NOT MY CALL. THAT'S -- WHEN I ASK THE 23 SUPERVISORS TO MOTIVATE, TO WORK WITH, TO DECIDE WHAT TO DO 24 WITH THE EMPLOYEES, THAT'S THEIR RESPONSIBILITY. I DON'T GET 25 INTO THE MINUTIA OF DECIDING HOW TO HANDLE EACH AND EVERY HENSLEY - CROSS/STENNETT 44 1 EMPLOYEE. 2 Q. I'M GOING TO SHOW YOU EXHIBIT AG, WHICH IS IN EVIDENCE, 3 AND IS THAT YOUR SIGNATURE ON EXHIBIT AG? 4 A. YES, IT IS. 5 Q. IS THIS A MEMO YOU SIGNED ON OR ABOUT JANUARY 12, 1998? 6 A. YES. 7 THE COURT: MR. STUTLER, IS AG IN EVIDENCE? 8 MR. STUTLER: I'M SORRY, I ASSUMED IT WAS. 9 MR. STENNETT: IT'S IN EVIDENCE AS A DIFFERENT NUMBER. 10 MR. STUTLER: I THINK THIS IS ONE OF THOSE EXHIBITS 11 THAT BOTH OF US GAVE A DIFFERENT DESIGNATION TO. 12 MR. STENNETT: PLAINTIFF'S EXHIBIT 10. 13 Q. I'M GOING TO REMOVE EXHIBIT AG AND REPLACE IT WITH 14 EXHIBIT 10. IS THAT THE SAME LETTER? 15 A. YES, IT IS. 16 Q. SO THAT'S THE LETTER THAT YOU SIGNED ON OR ABOUT JANUARY 17 12, 1998, ASSIGNING MS. NUNN TO THE HIDTA TASK FORCE? 18 A. YES. 19 Q. NOW, BETWEEN 1998 AND 2000, WAS MS. NUNN THE ONLY SPECIAL 20 AGENT THAT HAD BEEN REASSIGNED TO THE HIDTA TASK FORCE? 21 A. NO. 22 Q. HAD SHE -- WAS SHE THE ONLY SPECIAL AGENT THAT HAD BEEN 23 REASSIGNED AMONG THE DIFFERENT OFFICES, INCLUDING THE SAIC 24 OFFICE, THE RAIC LAX OFFICE, ORANGE COUNTY OFFICES? 25 A. NO, IT'S A ROUTINE REASSIGNMENT. THERE WERE NUMEROUS HENSLEY - CROSS/STENNETT 45 1 AGENTS. I COULDN'T TELL YOU HOW MANY, BUT I WOULD GUESS IT'S 2 WELL OVER A DOZEN. 3 Q. AND AT THE TIME THAT YOU HAD HER REASSIGNED TO THE HIDTA 4 TASK FORCE -- LET ME ASK YOU, AM I USING THE RIGHT TERM, 5 REASSIGNMENT? 6 A. YES. 7 Q. AT THE TIME YOU HAD HER REASSIGNED, DID YOU HAVE ANY 8 BELIEF OR UNDERSTANDING WHETHER HIDTA AFFECTED A SPECIAL 9 AGENT'S PROMOTABILITY? 10 A. THE PEOPLE COMING OUT OF HIDTA ACTUALLY HAD A HIGHER 11 PROMOTABILITY RATE BECAUSE OF THEIR EXPERIENCES THAT THEY HAD 12 GOTTEN IN HIDTA AND THE NUMBER OF ARRESTS, CASES, WHAT WE 13 CONSIDER CLASS 1 CASES, THE MORE COMPLEX CASES, THAN SOME OF 14 THEIR FELLOW AGENTS. 15 Q. SO FROM A CAREER STANDPOINT, YOUR BELIEF AT THAT TIME WAS 16 THAT IT WAS A POSITIVE FACTOR TO GO TO HIDTA? 17 A. YES. 18 Q. DID YOU ALSO BELIEVE THAT IT MIGHT IMPROVE HER 19 PRODUCTIVITY, MS. NUNN'S PRODUCTIVITY? 20 A. YES, I DID. 21 Q. AS OF THE DATE AND TIME THAT YOU SIGNED THIS DOCUMENT 22 TRANSFERRING MS. NUNN TO THE HIDTA TASK FORCE, DID YOU HAVE AN 23 UNDERSTANDING WHETHER FOUR DAYS EARLIER OR ANY TIME EARLIER 24 SHE HAD SUBMITTED A STATEMENT IN THE EEO PROCESS? 25 A. NO, I DID NOT. HENSLEY - CROSS/STENNETT 46 1 Q. NOBODY HAD TOLD YOU THAT AS OF THAT DATE? 2 A. NO. 3 Q. WHEN DID YOU FIRST LEARN THAT MS. NUNN WAS INVOLVED IN 4 THE EEO PROCESS? 5 A. IT WASN'T IMMEDIATELY AFTER THAT, IT WAS A FEW MONTHS 6 AFTER THAT, AS I REMEMBER IT. 7 Q. AFTER MS. NUNN WAS ASSIGNED TO HIDTA, DID YOU GET ANY 8 REPORTS ON HER PERFORMANCE AT THE TASK FORCE? 9 A. INITIALLY, MR. FOWLER WAS HOPEFUL THAT SHE WOULD BE 10 PRODUCTIVE AT HIDTA, AND WAS CAUTIOUSLY OPTIMISTIC AND WAS 11 HOPEFUL THAT HE COULD WORK WITH HER AND MAKE HER PRODUCTIVE. 12 Q. AND MR. FOWLER WAS THE HIDTA ASAC? 13 A. YES, HE WAS. 14 Q. WHERE WAS HE STATIONED OR WHERE WAS HE WORKING? 15 A. HE WAS PHYSICALLY AT THE HIDTA LOCATION IN DOWNTOWN LOS 16 ANGELES, DOWN ON 6TH STREET. 17 Q. AND YOU SAID HE WAS HOPEFUL IT WOULD WORK OUT? 18 A. YES. 19 Q. DID YOU LEARN LATER ON WHETHER THAT HAD COME TO FRUITION? 20 A. YES. I DID RECEIVE REPORTS FROM HIM THAT IT WAS NOT 21 GOING WELL AND HE WAS RECEIVING COMPLAINTS FROM THE GROUP 22 SUPERVISOR, WHO WAS A DEA AGENT, AND SOME OF THE AGENTS THAT 23 SHE WAS NOT PRODUCTIVE, AND WAS BEING DISRUPTIVE IN THE 24 GROUPS, AND WASN'T WORKING AS A TEAM MEMBER. 25 Q. DID YOU IMMEDIATELY PULL HER OUT OF THE TASK FORCE? HENSLEY - CROSS/STENNETT 47 1 A. NOT AT THAT POINT, NO. 2 Q. IS THERE ANY REASON WHY YOU DIDN'T? 3 A. I ASKED THAT HE TAKE A LAST TRY WITH HER, WORK WITH HER, 4 AND SEE IF WE COULDN'T MAKE HER MORE PRODUCTIVE. 5 Q. BY THE TIME SUMMER ROLLED AROUND, HAD YOU HEARD ANY 6 POSITIVE REPORTS THAT THINGS ARE GETTING BETTER? 7 A. NO, IT GOT WORSE. 8 Q. AT THAT POINT DID YOU CONSIDER PULLING HER OUT OF THE 9 TASK FORCE? 10 A. YES. 11 Q. WHY DIDN'T YOU? 12 A. WE HAD TO FIND ANOTHER SLOT AND TRANSFER HER INTO A 13 GROUP, AND WE WERE GOING TO DO THAT IN THE COMING TWO MONTHS, 14 BUT AT THAT PARTICULAR POINT WE HAD TO MAKE A DECISION WHAT TO 15 DO WITH HER. 16 Q. THERE'S BEEN TESTIMONY THAT ABOUT OCTOBER OF 1998 SHE 17 WAS, IN FACT, RETURNED TO CUSTOMS AT TERMINAL ISLAND. AT SOME 18 POINT AFTER THAT, DID YOU GET INFORMATION SUGGESTING SHE HAD 19 BROKEN ANY OF THE RULES OR LAWS -- RULES OF CUSTOMS? 20 A. YES. WE ACTUALLY GOT A COMPLAINT FROM DEA THAT THEY 21 WANTED HER OUT OF HIDTA, AND THAT A LETTER WOULD BE FOLLOWING, 22 AND THAT THE INDIVIDUAL WAS ABUSING LEAVE RULES, AND WAS ALSO 23 VIOLATING THE PRIVATE WORK ON GOVERNMENT TIME RULES. 24 Q. DID YOU ADDRESS THOSE ALLEGED RULES VIOLATIONS? 25 A. THE VIOLATIONS WERE REFERRED FOR FOLLOW-UP INVESTIGATION. HENSLEY - CROSS/STENNETT 48 1 Q. WHO FOLLOWED UP? 2 A. I BELIEVE INTERNAL AFFAIRS DIVISION OF CUSTOMS INITIALLY 3 LOOKED AT IT. 4 Q. AND THEN WHAT HAPPENED AFTER THAT? 5 A. IT WAS REFERRED BACK TO THE CUSTOMS OFFICE, TO OUR 6 OFFICE, FOR FINAL ACTION. 7 Q. WITHOUT GOING INTO TOO MUCH DETAILS -- TOO MUCH DETAIL ON 8 IT, WHAT'S THE DIFFERENCE BETWEEN INTERNAL AFFAIRS DOING AN 9 INVESTIGATION AND YOUR OFFICE DOING AN INVESTIGATION? 10 A. THE INTERNAL AFFAIRS DIVISION HANDLES THE MORE SERIOUS 11 ALLEGATIONS AGAINST EMPLOYEES. THERE'S -- I DON'T HAVE THE 12 LIST, BUT THERE'S CERTAIN MANDATORY REFERRALS. IF THERE'S AN 13 ALLEGATION OF CRIMINALITY OR MAJOR RULE ABUSE, INTERNAL 14 AFFAIRS WILL LOOK AT IT. THEY MAY DO A PRELIMINARY 15 INVESTIGATION. IF IT'S DEEMED TO BE LESS THAN ORIGINALLY 16 DESCRIBED, THEY'LL REFER IT BACK TO THE SAIC OFFICE FOR 17 ACTION. OR IF IT'S A MORE ADMINISTRATIVE VIOLATION IN NATURE, 18 ABUSE OF THE GOVERNMENT CAR, YOU BEAT IT UP, YOU DIDN'T 19 SERVICE IT, YOU'RE ABUSING YOUR SICK LEAVE, MORE MINOR ISSUES 20 WERE DEALT WITH AT THE ADMINISTRATIVE LEVEL WITHIN THE SAIC 21 OFFICE. 22 Q. SO INTERNAL AFFAIRS REFERRED THIS MATTER BACK TO YOUR 23 OFFICE? 24 A. YES. 25 Q. IT WAS TREATED AS A MORE MINOR -- HENSLEY - CROSS/STENNETT 49 1 A. THEY SAID THAT THEY WOULD REFER IT TO THE SAIC FOR 2 APPROPRIATE ADMINISTRATIVE ACTION. 3 Q. DID MR. GWALTNEY -- DID HE RUN THE INVESTIGATION? 4 A. YES, HE DID. 5 Q. WHEN DID THE INVESTIGATION START? 6 A. I BELIEVE IT WAS THE LATTER PART OF 1998. 7 Q. WHAT DID THE INVESTIGATION DETERMINE? 8 A. I DON'T REMEMBER THE SPECIFICS OTHER THAN MS. NUNN HAD A 9 BUSINESS OF SOME KIND. SHE WAS MAKING CALLS FROM THE 10 DEA/HIDTA OFFICE IN FURTHERANCE OF THAT PRIVATE BUSINESS THAT 11 SHE WAS INVOLVED IN, AND ALSO THERE WAS AN ABUSE OF LEAVE. 12 Q. THERE'S BEEN EVIDENCE AND TESTIMONY THAT IN APRIL 1999 A 13 PROPOSED THREE-DAY SUSPENSION WAS ISSUED; DO YOU RECALL THAT? 14 A. YES, I DO. 15 Q. AND THERE'S ALSO BEEN EVIDENCE THAT IN JUNE OF 1999 THE 16 THREE-DAY SUSPENSION WAS ACTUALLY ISSUED; DO YOU RECALL THAT? 17 A. I KNOW THAT IT WAS ISSUED. I DON'T REMEMBER THE EXACT 18 TIME FRAME. I KNOW IT WAS AFTER THE PROPOSAL, OF COURSE. 19 Q. AND WHO MADE THAT DECISION? 20 A. I DON'T REMEMBER. 21 Q. HOW MANY THREE-DAY SUSPENSIONS HAVE YOU BEEN INVOLVED IN 22 IN ISSUING, IN YOUR CAREER? 23 A. SEVERAL. 24 Q. AND THERE'S ALSO BEEN EVIDENCE THAT IN BETWEEN THE NOTICE 25 OF PROPOSED THREE-DAY SUSPENSION AND THE ACTUAL SUSPENSION HENSLEY - CROSS/STENNETT 50 1 THAT MS. FITZGERALD AND MS. NUNN WERE OUT PICKETING, CARRYING 2 SIGNS AND SUCH, OUTSIDE THE RAIC RIVERSIDE OFFICE. WAS THAT A 3 FACTOR IN THE THREE-DAY SUSPENSION? 4 A. I DON'T REMEMBER THE SIGN INCIDENT, BUT IT WASN'T AN 5 ELEMENT, EVEN IF I HAD KNOWN ABOUT IT. 6 Q. AFTER SHE WAS REASSIGNED TO CUSTOMS AT TERMINAL ISLAND, 7 DID MS. NUNN'S PERFORMANCE IMPROVE? 8 A. BEG PARDON? 9 Q. DID HER PERFORMANCE IMPROVE AFTER SHE CAME BACK FROM 10 HIDTA TO TERMINAL ISLAND? 11 A. WE PLACED HER IN A GROUP AND IN A SPECIFIC OPERATION, 12 OPERATION RAVENNA, I BELIEVE WAS THE NAME OF IT, WHICH HAD A 13 HIGH POTENTIALITY FOR PRODUCTION, AND SHE WAS NOT PRODUCTIVE 14 IN THAT GROUP EITHER. 15 Q. AT THAT POINT WAS SHE PLACED ON A PIP? 16 A. I DON'T REMEMBER. 17 Q. WAS SHE DISCIPLINED FOR THAT FOR NONPRODUCTIVITY? 18 A. I DON'T REMEMBER. 19 Q. DID YOU WANT HER TO BE DISCIPLINED FOR THAT? 20 A. WELL, THAT'S NOT MY CALL TO -- THE DISCIPLINE, AGAIN, AS 21 I STATED PREVIOUSLY, IS AT THE FIRST LINE OF SUPERVISION. I 22 HOLD THE SUPERVISORS RESPONSIBLE FOR ANY OF THE GROUPS. THE 23 DEPUTY SAICS AND THE ASAICS IN TURN HOLD THE GROUP SUPERVISORS 24 RESPONSIBLE FOR RUNNING THEIR GROUPS, SO I DON'T MEDDLE IN 25 THAT, THAT'S UP TO THE DEPUTY SAICS AND THE ASAICS TO HENSLEY - CROSS/STENNETT 51 1 ENCOURAGE THE GROUP AS SUPERVISORS FOR THEIR PEOPLE. 2 Q. DO YOU KNOW WHO THE GROUP SUPERVISOR WAS FOR HER AT THIS 3 POINT? 4 A. I BELIEVE IT WAS RICK POWELL. 5 Q. HE WOULD BE DOWN HERE AT THIS LEVEL (INDICATING)? 6 A. YES. 7 Q. LET ME MOVE ON TO ANOTHER INCIDENT, JUNE OF 1999. 8 THERE'S BEEN AN ALLEGATION THAT MS. NUNN ENGAGED IN 9 UNAUTHORIZED USE OF THE TECS SYSTEM; DO YOU HAVE ANY 10 RECOLLECTION OF THAT? 11 A. JUST THE ISSUE, YES. 12 Q. WHAT DO YOU RECALL ABOUT IT? 13 A. THAT SHE WAS ACCESSING ANOTHER AGENT'S FILES, BUT I DON'T 14 KNOW ANYTHING BEYOND THAT. 15 Q. DO YOU KNOW WHO THE AGENT WAS? 16 A. I BELIEVE IT WAS DARLENE CATALAN. 17 Q. THAT WOULD BE DARLENE FITZGERALD? 18 A. YES. 19 Q. WHAT BECAME OF THAT ALLEGED INVOLVEMENT? WAS ANYTHING 20 DONE ABOUT THAT? 21 A. THAT'S A SECURITY VIOLATION SO IT'S A MANDATORY REFERRAL 22 TO INTERNAL AFFAIRS, AND IT WAS REFERRED. 23 Q. DO YOU KNOW WHO MADE THE REFERRAL? 24 A. THERE WAS A COMPLAINT MADE ABOUT IT, AND I BELIEVE THAT 25 THE GROUP SUPERVISOR MADE THE REFERRAL. HENSLEY - CROSS/STENNETT 52 1 Q. FINALLY, LET ME DISCUSS MS. NUNN'S CONSTRUCTIVE DISCHARGE 2 CLAIM. DID YOU EVER SEE A LETTER FROM MS. NUNN RESIGNING -- 3 HER RESIGNATION LETTER? 4 A. YES. 5 Q. WHAT'S YOUR UNDERSTANDING OF WHY SHE RESIGNED, ACCORDING 6 TO THAT LETTER? 7 A. THAT SHE HAD ACCEPTED A POSITION, AND I BELIEVE IT HAD 8 SOMETHING TO DO WITH GOING OVERSEAS, AS I REMEMBER. I CAN'T 9 REMEMBER THE DETAILS OTHER THAN SHE HAD A POSITION WHICH SHE 10 WANTED TO TAKE, AND IT WAS A BETTER OPPORTUNITY FOR HER, AND 11 SHE WAS LEAVING THE GOVERNMENT. 12 Q. DID SHE EVER GIVE YOU ANY OTHER INFORMATION ABOUT WHY SHE 13 WAS RESIGNING? 14 A. I NEVER SPOKE TO HER ABOUT IT. SHE NEVER SPOKE TO ME. 15 MR. STUTLER: THANK YOU, MR. HENSLEY, PASS THE 16 WITNESS. 17 THE COURT: MR. BEBI. 18 MR. BEBI: THANK YOU, YOUR HONOR. 19 CROSS-EXAMINATION 20 BY MR. BEBI: 21 Q. GOOD AFTERNOON, MR. HENSLEY. 22 A. GOOD AFTERNOON. 23 Q. WE'VE MET BEFORE, AT THE TIME OF YOUR DEPOSITION; IS THAT 24 CORRECT? 25 A. YES. HENSLEY - CROSS/STENNETT 53 1 Q. AND DURING THAT DEPOSITION YOU WERE ADMONISHED THAT YOUR 2 TESTIMONY IN YOUR DEPOSITION WOULD HAVE THE SAME FORCE AND 3 EFFECT AS IF GIVEN IN A COURT OF LAW, LIKE WE'RE IN TODAY; IS 4 THAT CORRECT? 5 A. THAT'S CORRECT. 6 Q. AND YOU KNEW THAT WHEN YOU ANSWERED THE QUESTIONS; ISN'T 7 THAT CORRECT? 8 A. YES. 9 Q. NOW, DID YOU TESTIFY HERE TODAY THAT YOU DID NOT COMPLETE 10 YOUR BACHELOR'S DEGREE AND ACTUALLY GET A B.A. OR B.S. DEGREE? 11 A. THAT'S CORRECT. 12 Q. I'M GOING TO READ FROM PAGE 8 OF YOUR DEPOSITION, AND IF 13 YOU'LL TURN TO PAGE 8 -- ACTUALLY BEGINNING ON PAGE 7, LINE 24 14 THROUGH 25, AND THEN CONTINUING ON PAGE 8, LINES 1 THROUGH 12. 15 QUESTION, ON PAGE 7: 16 "I WOULD LIKE TO KNOW A LITTLE BIT ABOUT YOUR 17 BACKGROUND, STARTING WITH YOUR EDUCATIONAL BACKGROUND. WHAT 18 IS THE HIGHEST GRADE OF SCHOOL THAT YOU COMPLETED?" 19 ANSWER: "COLLEGE, BACHELOR'S." 20 "IS THAT A B.A OR B.S.?" 21 "B.S." 22 "WHICH COLLEGE?" 23 "UNIVERSITY OF COLORADO." 24 "WHAT YEAR?" 25 "1970." HENSLEY - CROSS/STENNETT 54 1 "WHAT DID YOU RECEIVE YOUR B.S. DEGREE IN, WHAT 2 SUBJECT?" 3 "CRIMINAL JUSTICE." 4 WERE THOSE, IN FACT, THE QUESTIONS AND ANSWERS AS THEY 5 WERE GIVEN AT THE TIME OF YOUR DEPOSITION? 6 A. YES, THEY WERE. 7 MR. STUTLER: EXCUSE ME, YOUR HONOR, HE'S ACTUALLY 8 CORRECTED THAT DEPOSITION. COUNSEL HAS BEEN NOTIFIED OF THAT, 9 AND THE CORRECTED VERSION IS IN FRONT OF MR. HENSLEY. 10 THE COURT: MR. BEBI. 11 MR. BEBI: THAT WAS MY NEXT QUESTION. 12 THE COURT: ALL RIGHT. 13 Q. NOW, AT SOME POINT IN TIME YOU HAD AN OPPORTUNITY TO 14 REVIEW AND MAKE CORRECTIONS TO YOUR DEPOSITION, CORRECT? 15 A. THAT'S CORRECT. 16 Q. AND YOU CHANGED THAT, CORRECT? 17 A. THAT'S CORRECT, I DID. 18 Q. THE TRUTH OF THE MATTER IS WHEN YOU SAT FOR YOUR 19 DEPOSITION YOU KNEW FULL WELL YOU HAD NO B.S. DEGREE, CORRECT? 20 A. YES. 21 MR. STUTLER: YOUR HONOR, FOR THE SAKE OF 22 COMPLETENESS, I WOULD REQUEST THAT THE CORRECTED VERSION BE 23 READ AT THIS TIME. 24 THE COURT: ALL RIGHT. WELL, I'LL TELL YOU WHAT, MR. 25 BEBI, YOU CAN EITHER DO THAT NOW OR I'LL ALLOW MR. STUTLER TO HENSLEY - CROSS/STENNETT 55 1 DO IT ON REDIRECT. 2 MR. BEBI: I WOULD RATHER MOVE ON NOW, YOUR HONOR. 3 THE COURT: ALL RIGHT. 4 Q. LET'S TALK ABOUT THE PROMOTION INVOLVING MS. FITZGERALD 5 IN 1996. NOW, PRIOR TO THAT TIME I BELIEVE YOU TESTIFIED THAT 6 THE SUPERVISORS OF THE PERSONNEL WERE INVOLVED IN THE 7 SELECTION PROCESS; IS THAT CORRECT? 8 A. YES. 9 Q. IS IT YOUR UNDERSTANDING THAT THERE WAS CRITICISM ACROSS 10 THE NATION ABOUT FAVORITISM IN THE SELECTION PROCESS PRIOR TO 11 THE CAAP SYSTEM? 12 A. NO, I DIDN'T TESTIFY THERE WAS FAVORITISM ACROSS THE 13 BOARD. WHAT I SAID IS THE SYSTEM WAS FLAWED. 14 Q. ONE OF THE REASONS YOU FELT THE SYSTEM WAS FLAWED WAS 15 BECAUSE PEOPLE WERE COMPLAINING OF CRONYISM IN THE SELECTION 16 PROCESS; ISN'T THAT CORRECT? 17 A. NO, IT'S NOT. 18 Q. YOU'RE NOT AWARE OF THOSE ALLEGATIONS BEING MADE? 19 A. NOT TO ME, NO. 20 Q. CERTAINLY NO ONE EVER ACCUSED YOU OF CRONYISM; IS THAT 21 CORRECT? 22 A. NO, THEY DID NOT. 23 Q. IN ANY EVENT, THIS SYSTEM WAS INSTITUTED WHERE, TO BEGIN 24 WITH, PEOPLE WOULD CALL INTO A TELEPHONE NUMBER, CORRECT? 25 A. YES. HENSLEY - CROSS/STENNETT 56 1 Q. AND THEY WOULD ANSWER VARIOUS QUESTIONS ON A FORM; IS 2 THAT CORRECT? 3 A. THAT'S CORRECT. 4 Q. AND THEY WOULD PUNCH IN THEIR ANSWERS; ISN'T THAT 5 CORRECT? 6 A. YES. 7 Q. AND AS A RESULT OF THAT, THERE WAS SOMETHING CALLED A 8 CAAP SCORE? 9 A. YES. 10 Q. AND THE AGENTS WERE GIVEN THEIR CAAP SCORE, AFTER THEY -- 11 SOME TIME HAD PASSED AFTER THEY HAD TAPPED IN THESE NUMBERS, 12 CORRECT? 13 A. YES. 14 Q. AND THESE CAAP SCORE NUMBERS WERE MAINTAINED SOMEWHERE 15 WITHIN THE SYSTEM OF CUSTOMS; ISN'T THAT CORRECT? 16 A. YES, THEY WERE. 17 Q. SO TODAY, IF WE WANTED TO, WE COULD SEE, IF WE LOOKED AT 18 RAIC RIVERSIDE IN 1996, WHO, AFTER THE TELEPHONE SELECTION 19 PROCESS, WAS RATED NO. 1, CORRECT? 20 A. I DON'T KNOW WHAT THOSE NUMBERS ARE OR WHERE THEY ARE 21 TODAY. I DON'T HAVE THAT KNOWLEDGE. 22 Q. LET'S GO BACK THEN TO '96. IN '96, CERTAINLY THAT 23 INFORMATION WAS AVAILABLE, CORRECT? 24 A. YES, IT WAS. 25 Q. AND THERE WAS ACTUALLY A PIECE OF PAPER OR DOCUMENT THAT HENSLEY - REDIRECT 57 1 COULD BE GENERATED THAT SAID, "NO. 1 CAAP SCORE WAS INDIVIDUAL 2 X," CORRECT? 3 A. YES. 4 Q. AND NO. 2, CORRECT? 5 A. YES. 6 Q. HAVE YOU EVER SEEN THOSE CAAP SCORES RANKINGS FOR THE 7 RAIC RIVERSIDE OFFICE? 8 A. I DON'T REMEMBER IF I DID OR NOT. 9 Q. IT WAS OPM THAT CONVERTED THE CAAP SCORES TO RAW SCORES; 10 IS THAT CORRECT? 11 A. I'M SORRY, IT'S BEEN JUST TOO LONG. I DON'T KNOW WHO 12 ACTUALLY DID THE CONVERSION, IF IT WAS CUSTOMS' HUMAN 13 RESOURCES OR OPM. 14 Q. WELL, I THINK I CAN REFRESH YOUR RECOLLECTION ON THAT, 15 BUT BEFORE I DO THAT, WHAT IS OPM; DO YOU RECALL THAT? 16 A. OFFICE OF PERSONNEL MANAGEMENT. IT'S THE OLD PERSONNEL 17 DIVISION OF THE FEDERAL GOVERNMENT. 18 Q. I'VE GOT SOMETHING THAT'S BEEN MARKED AS -- PREMARKED AS 19 EXHIBIT 72, AND I'M GOING TO SHOW YOU THIS. I'VE SHOWED YOU A 20 THREE-PAGE DOCUMENT THAT WE'VE MARKED AS EXHIBIT 72; DO YOU 21 RECOGNIZE THAT DOCUMENT? 22 A. I SEE I'VE SIGNED IT. I'M JUST TRYING TO READ IT TO 23 REFRESH MY MEMORY. 24 Q. GO AHEAD. I DIDN'T MEAN TO INTERRUPT YOU. I'M SORRY, 25 MR. HENSLEY. HENSLEY - RECROSS/BEBI 58 1 A. IT LOOKS LIKE AN AFFIDAVIT THAT I DID IN NOVEMBER OF 2 1999. 3 Q. AND I IMAGINE THAT EVERYTHING IN THIS AFFIDAVIT WAS TO 4 THE BEST OF YOUR ABILITY TO RECALL, TO REMEMBER THE TRUTH; IS 5 THAT CORRECT? 6 A. YES. 7 Q. AND ON THE FIRST PAGE, IF YOU LOOK AT LINES 19 THROUGH 8 22, WOULD YOU READ THOSE TO YOURSELF, PLEASE. 9 A. (WITNESS COMPLIES WITH REQUEST.) 10 IT SAYS OPM IN THE STATEMENT. 11 Q. MY QUESTION IS VERY SIMPLE; DOES THAT REFRESH YOUR 12 RECOLLECTION THAT OPM ACTUALLY CONVERTED THE RESPONSES THAT 13 WERE GIVEN BY THE APPLICANTS OVER THE TELEPHONE INTO A RAW 14 SCORE? 15 A. YES. 16 Q. NOW, YOU FELT THAT THAT WASN'T GOOD ENOUGH, ISN'T THAT 17 CORRECT, TO DETERMINE WHO SHOULD BE PROMOTED BY THIS RAW 18 SCORE; IS THAT A FAIR STATEMENT? 19 A. ALONG WITH OTHERS, YES. 20 Q. LET'S JUST FOCUS ON YOU, AND LET'S NOT BRING WHAT OTHERS 21 THOUGHT, FOR THE MOMENT ANYWAY. 22 BASICALLY, WHAT THIS WAS -- IT WAS AN ATTEMPT TO 23 OBJECTIFY THE PROMOTION PROCESS; IS THAT A FAIR STATEMENT? 24 A. YES. 25 Q. YOU FELT -- AT LEAST THE REASON YOU GAVE WAS THAT YOU HENSLEY - RECROSS/BEBI 59 1 THOUGHT THERE MIGHT BE SOME FUDGING ON THE PEOPLE'S BACKGROUND 2 OR INFORMATION THAT THEY PUNCHED INTO THE TELEPHONE SYSTEM; IS 3 THAT CORRECT? 4 A. I FELT THAT IT WAS A VERY SUBJECTIVE SYSTEM WITHOUT ANY 5 QUALIFICATIONS OR BALANCE OR RULES. 6 Q. AND YOU DETERMINED THAT YOU WOULD NOT ACCEPT THE RAW 7 SCORES; IS THAT FAIR? 8 A. YES. 9 Q. TO REMEDY THIS PROBLEM THAT YOU SAW, YOU CAME UP WITH THE 10 PANEL TO INTERVIEW FOR THE PURPOSE OF VERIFYING THE RAW 11 SCORES; IS THAT CORRECT? 12 A. NO, THAT'S NOT CORRECT. 13 Q. IF YOU LOOK AT LINE 27 OF THE FIRST PAGE OF YOUR 14 DECLARATION, THE FIRST FULL SENTENCE IN THAT -- ON THAT PAGE. 15 A. YES. 16 Q. DID YOU NOT DECLARE IN NOVEMBER OF 1999 THAT, "I SET UP A 17 PANEL TO REVIEW THE RAW SCORES AND APPLICATION PACKAGES OF ALL 18 THE APPLICANTS THAT WERE REFERRED ON THE SELECTION REGISTER"? 19 A. YES. BUT IF YOU WOULD LET ME EXPLAIN WHAT MY STATEMENT 20 WAS, I DIDN'T MAKE THE DECISION. I UNIFORMLY, AND BY 21 MYSELF -- ACROSS THE NATION THEY DO THIS. IT WAS A DECISION 22 MADE BY CUSTOMS, AND I SET UP THE PANEL IN THE LOCAL OFFICE. 23 Q. WE'RE GOING TO ALLOW YOU TO EXPLAIN, THANK YOU, BUT DID I 24 READ YOUR STATEMENT CORRECTLY? 25 A. SURE. HENSLEY - RECROSS/BEBI 60 1 Q. YOUR PURPOSE IN SETTING UP THE PANEL OR YOUR INVOLVEMENT 2 IN THE PANEL WAS TO HAVE ALL THE APPLICANTS JUSTIFY THEIR 3 SCORES; ISN'T THAT CORRECT? 4 A. I WANTED THE MANAGERS TO LOOK AT THE INFORMATION SUPPLIED 5 AND VALIDATE IT. 6 Q. BUT YOU WOULD AGREE WITH ME THAT ALL APPLICANTS WERE 7 REQUIRED TO JUSTIFY THE ANSWERS THEY GAVE IN THE CAAP'S 8 APPLICATION PROCESS? 9 A. WELL, I GUESS ITS SEMANTICS. I SAW IT AS THE SUPERVISORS 10 VALIDATING WHAT WAS PUT IN. 11 Q. OKAY, LET'S TAKE A LOOK AT LINE 28, FIRST FULL SENTENCE, 12 CONTINUING ON TO LINE 29 FROM YOUR NOVEMBER 1999 DECLARATION. 13 A. YES. 14 Q. YOU DID STATE THERE, UNDER PENALTY OF PERJURY, "THEY WERE 15 ALL INTERVIEWED AND REQUIRED TO JUSTIFY THE ANSWERS THEY GAVE 16 IN THE CAAP'S APPLICATION PROCESSING." DID I READ THAT 17 CORRECTLY? 18 A. YES. 19 Q. AND THEN YOU HAD ALL THE MANAGERS REVIEW THE SCORES 20 AGAINST THE ACTUAL WORK? 21 A. YES, THAT'S THE VALIDATION PROCESS. 22 Q. DO YOU KNOW WHATEVER HAPPENED TO ALL THE DOCUMENTATION 23 GENERATED BY THE ACTIONS OF THE MANAGERS REVIEWING THE SCORES 24 AGAINST THE ACTUAL WORK FOR THE RAIC RIVERSIDE PROMOTION 25 PEOPLE? HENSLEY - RECROSS/BEBI 61 1 A. NO, I DON'T. 2 Q. NOW, THE FINAL APPROVAL FOR THE POSITIONS CAME FROM 3 WASHINGTON, D.C., CORRECT? 4 A. YES, THAT'S CORRECT. 5 Q. YOU WOULD AGREE WITH ME THAT WASHINGTON, D.C. WOULD 6 CONCUR WITH YOUR RECOMMENDATION; ISN'T THAT TRUE? 7 A. IN MOST CASES. 8 Q. DID WASHINGTON, D.C. DISAGREE WITH YOUR RECOMMENDATIONS 9 FOR THE RAIC RIVERSIDE PROMOTIONS? 10 A. NO, THEY DID NOT. 11 Q. NOW, ONE OF THE PEOPLE IN MANAGEMENT THAT YOU RELIED UPON 12 TO VERIFY THE CAAP SCORES AND THE PROCESS WAS THE ACTUAL 13 SUPERVISORS OF THE INDIVIDUALS WHO WERE APPLYING FOR THE 14 POSITION; ISN'T THAT CORRECT? 15 A. YES. 16 Q. YOU HAD MR. SHINTANI TALK TO MR. PERBETSKY, IN MS. 17 FITZGERALD'S CASE, CORRECT? 18 A. I DON'T REMEMBER WHO TALKED TO WHO. I DIDN'T GET 19 INVOLVED IN THAT LEVEL. I JUST ASKED THAT PANELS BE SET UP 20 AND THEY VALIDATE THE SCORES. 21 Q. ONE OF THE ACCEPTABLE WAYS, IN YOUR MIND, TO VALIDATE THE 22 SCORES WAS TO GO AND GET INPUT FROM THE ACTUAL GROUP 23 SUPERVISOR; ISN'T THAT CORRECT? 24 A. I DON'T REMEMBER THE ACTUAL PROCESS THEN, BUT THAT WOULD 25 SEEM LOGICAL TO ME, YES. HENSLEY - RECROSS/BEBI 62 1 Q. UP UNTIL LET'S SAY DECEMBER OF '96, HAD IT EVER BEEN 2 BROUGHT IT YOUR ATTENTION THAT MR. PERBETSKY FAVORED CERTAIN 3 PEOPLE IN THE OFFICE? 4 A. NO. 5 Q. WAS IT EVER BROUGHT TO YOUR ATTENTION THAT MR. PERBETSKY 6 FAVORED AN INDIVIDUAL NAMED MICHAEL ARNOLD? 7 A. WHO? 8 Q. MIKE ARNOLD. 9 A. NO. 10 Q. WAS IT EVER BROUGHT TO YOUR ATTENTION THAT MR. PERBETSKY 11 MAY HAVE HAD SOME PROBLEMS WITH SOME OF THE FEMALE AGENTS IN 12 THE OFFICE? 13 A. NOT THAT I REMEMBER. 14 Q. NOW, DID YOU FEEL THAT THIS TELEPHONIC SYSTEM SOMEHOW 15 INFRINGED UPON SOME OF YOUR PREROGATIVES AS THE SAIC IN 16 CHOOSING WHO WAS TO BE PROMOTED? 17 A. NO. 18 Q. LET'S TALK ABOUT VEHICLES FOR A MOMENT. NOW, DID I 19 UNDERSTAND YOUR TESTIMONY CORRECTLY THAT THERE WERE VEHICLES 20 AVAILABLE FOR AGENTS WHO WERE EXPERIENCING PROBLEMS WITH A 21 VEHICLE ON A DAILY BASIS OR EVEN ON A TEMPORARY BASIS? 22 A. THERE WERE SOME CARS AVAILABLE WITHIN THE SYSTEM, YES, 23 THAT WE KEPT AS SPARES. THERE WEREN'T ALWAYS CARS AVAILABLE 24 TO EVERY GROUP, BUT WE HAD SET ASIDE A POOL OF CARS IN THE 25 SAIC DISTRICT TO COVER CONTINGENCES, BREAKDOWNS, WRECKS, ETC. HENSLEY - RECROSS/BEBI 63 1 Q. I WOULD TAKE IT THAT YOU NEVER TOLD MR. PERBETSKY, "DO 2 NOT ASSIGN MS. FITZGERALD A CAR ON A TEMPORARY BASIS SO SHE 3 CAN FINISH SURVEILLANCE IN THERMAL, CALIFORNIA, ON A DAY WHEN 4 HER CAR IS OVERHEATING AND STOPPING"; IS THAT CORRECT? 5 A. THAT'S CORRECT. 6 Q. AND YOU NEVER TOLD MR. PINKAVA THAT YOU WERE IN CHARGE OF 7 ASSIGNING THE CARS AND THEY WERE NOT TO ASSIGN A TEMPORARY 8 VEHICLE TO MS. FITZGERALD; IS THAT CORRECT? 9 A. NO, I NEVER GOT TO THAT LEVEL OF DETAIL. 10 Q. THOSE WOULD BE FALSE STATEMENTS, IF THEY WERE MADE? 11 A. YES, THEY WOULD HAVE BEEN. 12 Q. ONE OF THE THINGS THAT YOU WANTED AS THE SAIC WAS THAT 13 YOUR AGENTS HAVE SAFE AND OPERABLE VEHICLES, CORRECT? 14 A. YES. 15 Q. TO YOUR KNOWLEDGE, WAS THERE ANY REASON, ANYTHING GOING 16 ON WITH THE VEHICLE SITUATION AT RAIC RIVERSIDE, THAT WOULD 17 HAVE INTERFERED WITH LOCAL MANAGEMENT'S ABILITY TO PROVIDE MS. 18 FITZGERALD WITH AN OPERATING, FUNCTIONAL VEHICLE TO CONDUCT 19 SURVEILLANCE IN THERMAL, CALIFORNIA? 20 A. I DON'T KNOW WHAT THE CAR SITUATION WAS THERE, BUT IF 21 THERE WAS AN ONGOING CASE THAT REQUIRED A VEHICLE, THEY COULD 22 PARTNER UP OR USE A LOANER CAR. OR IF IT HAD TO BE ELEVATED, 23 IT COULD BE ELEVATED. I DON'T EVER REMEMBER IT BEING 24 ELEVATED. 25 Q. YOUR TESTIMONY IS THAT THE ISSUE NEVER CAME TO YOUR HENSLEY - RECROSS/BEBI 64 1 LEVEL? 2 A. THAT'S CORRECT. 3 Q. NOW, AT ANY TIME DID YOU EVER LOOK INTO WHETHER OR NOT 4 MR. PERBETSKY WAS NOT PROVIDING MS. FITZGERALD WITH A VEHICLE 5 IN RETALIATION FOR FILING AN EEO COMPLAINT? 6 A. NO, I DIDN'T. 7 Q. LET'S TALK ABOUT UNDERCOVER SCHOOL FOR A MOMENT. I THINK 8 YOU TESTIFIED THAT GENERALLY THE RULE WAS, AND I THINK YOU 9 USED THE WORD "GENERALLY," THERE WOULD BE NO CREDIT FOR 10 UNDERCOVER WORK IF A PERSON DIDN'T GO TO SCHOOL, CORRECT? 11 A. THAT'S CORRECT. 12 Q. BUT YOU ALSO TESTIFIED THAT THERE COULD BE EXEMPTIONS 13 GRANTED AND EXCEPTIONS; IS THAT CORRECT? 14 A. YES. 15 Q. AND THEN YOU TALKED ABOUT CATEGORY 3 AND CATEGORY 2, AND 16 YOU TALKED ABOUT A REPETITIVE ROLE, AND JUST SO THAT I'M 17 CLEAR, IF AN AGENT IS INVOLVED IN AN UNDERCOVER OPERATION 18 JOINTLY WITH DEA, A CLASS 1 UNDERCOVER DEA EVAL -- UNDERCOVER 19 ACTIVITY THAT GOES ON FOR FOUR DAYS, WHERE THE AGENT IS 20 ACTUALLY IN THE HOME OF COLOMBIAN CARTEL MEMBERS, THAT WOULD 21 CLASSIFY AS WHICH, A-2 OR A-3? 22 A. THAT WOULD BE A-2. ALTHOUGH I WOULD SAY, QUITE FRANKLY, 23 IT BORDERS ON BEING A LEVEL 1. 24 Q. IF THERE'S ONGOING ACTIVITY AFTER THAT, SUBSEQUENT TO THE 25 FOUR DAYS OF ACTUALLY BEING IN THERE, WHERE THE AGENT IS HENSLEY - RECROSS/BEBI 65 1 ACTUALLY INVOLVED IN THE PROCESS OF EXCHANGING NARCOTICS WITH 2 THE COLOMBIANS, WOULD THAT NOW BRING IT UP TO A LEVEL 1? 3 A. IT COULD BE -- IT WOULD BE A-3 OR 2. THE EXCHANGE OF 4 NARCOTICS WOULD NOT VALIDATE BEING A-1, IT'S THE LENGTH OF 5 TIME AND THE DEPTH OF THE UNDERCOVER ROLE. 6 Q. IS THERE A CUTOFF DATE AS TO THE LENGTH OF TIME THAT 7 DISTINGUISHES IT BETWEEN A-1 AND A-2? 8 A. I BELIEVE THERE IS A POLICY. I DON'T REMEMBER WHAT IT 9 IS. IT'S A VERY SHORT TIME. ANYTHING ABOVE CASUAL, WHICH IS 10 A FEW HOURS AT A TIME, WHEN IT GOES TO LEVEL 2, ACTUALLY HAS 11 TO BE IN WRITING. 12 Q. THERE WAS NO POLICY IN EFFECT THAT THE WRITING HAD TO BE 13 FROM CUSTOMS AS OPPOSED TO DEA FOR THE ACT TO GET CREDIT FOR 14 UNDERCOVER ACTIVITY, AS YOU SIT HERE TODAY, BACK IN 1996? 15 A. IF THE AGENT IS WORKING A BONA FIDE CASE, THEY'RE 16 ASSIGNED TO -- CREDIT WOULD BE ASSIGNED BASED UPON THE 17 CASEWORK THAT THEY WERE DOING WITHIN THE CASE ASSIGNMENT. 18 Q. THANK YOU. VERY BRIEFLY, I WANT TO ASK YOU SOME 19 QUESTIONS ABOUT A PAGING INCIDENT IN MARCH OR APRIL OF 1998. 20 YOU WERE ASKED SOME QUESTIONS ABOUT THAT ON DIRECT 21 EXAMINATION, AND I WROTE DOWN HERE WHAT I THINK YOU SAID. I 22 JUST WANT TO MAKE SURE IT'S CORRECT. 23 DID YOU STATE THAT THE SUPERVISOR WOULD NOT HAVE THE 24 PREROGATIVE OF GETTING INTO THE SPECIFICS OF THE EEO 25 INVESTIGATION AS TO WHAT THEY WERE DOING AND WHO THEY WERE HENSLEY - RECROSS/BEBI 66 1 DOING IT WITH IN INQUIRING AS TO THE WHEREABOUTS OF THE 2 EMPLOYEE? 3 A. YES, THAT'S TRUE. 4 Q. AND THAT IS YOUR UNDERSTANDING OF A LIMITATION ON WHAT A 5 SUPERVISOR CAN DO WHEN INTERROGATING AN EMPLOYEE WHO'S 6 ENGAGING IN PROTECTED EEO ACTIVITY, CORRECT? 7 A. THAT'S MY UNDERSTANDING. WE NEED TO KNOW WHERE THE 8 EMPLOYEE IS, THAT THEY'RE DOING SOMETHING. THEY HAVE TO TELL 9 US WHAT THEY'RE DOING IN TERMS OF I'M DOING AN EEO ACTIVITY. 10 "I'M MEETING WITH A COUNSELOR." WE DON'T NEED TO KNOW THE 11 SPECIFICS OF WHAT CASE, WHO THEY'RE MEETING WITH, WHAT I WOULD 12 CALL THE GRIM DETAILS OF ALL MEETINGS. 13 Q. FOR EXAMPLE, WHO IS FILING THE EEO COMPLAINT, THAT WOULD 14 BE INAPPROPRIATE, YOU WOULD AGREE WITH ME, CORRECT? 15 A. I WOULDN'T EXPECT MY SUPERVISORS TO ASK THAT. 16 Q. RIGHT, BECAUSE THE PERSON MIGHT WANT ANONYMITY, CORRECT? 17 A. THAT'S CORRECT. 18 Q. WE TALKED A LITTLE BIT ABOUT THE RAIL PROJECT, AND BEFORE 19 COMING HERE TODAY, DID YOU EVER HEAR FROM ANYONE THAT MR. 20 COOPER HAD IDENTIFIED YOU AS THE PERSON WHO HAD "TORPEDOED" 21 THE RAIL PROJECT TO ASSISTANT AUSA YVETTE PALAZUELOS? 22 A. NO. 23 Q. THAT COMES AS A SURPRISE TO YOU? 24 A. I BELIEVE THERE WAS A STATEMENT MADE BY MS. FITZGERALD, 25 BUT IN TERMS OF SOMEBODY TELLING ME ABOUT IT, I WASN'T AWARE HENSLEY - RECROSS/BEBI 67 1 OF IT. 2 Q. DID YOU EVER HEAR, BEFORE TODAY, THERE WAS A CONVERSATION 3 CONCERNING THE VIABILITY OF THE RAIL CAR CASE, AND WHETHER OR 4 NOT CUSTOMS WAS COMMITTED TO PROVIDING ENOUGH SUPPORT TO BRING 5 THE INVESTIGATION TO FRUITION WITH AUSA YVETTE PALAZUELOS? 6 A. I'M NOT SURE EXACTLY HOW TO ANSWER THAT. I CAN TELL YOU 7 THAT WE TRIED TO SUPPLY AS MUCH SUPPORT AS WE COULD TO MR. 8 PINKAVA'S OFFICE TO SUPPORT THAT CASE, ESPECIALLY IN THE 9 PRELIMINARY STAGES WHEN IT WAS FELT IT WAS QUITE A BIG CASE, 10 AND HE WAS GIVEN THE LATITUDE TO ASK FOR AS MANY RESOURCES AS 11 HE NEEDED TO CONTINUE THAT CASE. 12 Q. SO AS FAR AS YOU WERE CONCERNED, MR. PINKAVA HAD WHATEVER 13 RESOURCES HE ASKED FOR? 14 A. AT THE POINT THAT HE NEEDED THEM, AND HE COULD JUSTIFY 15 THEM, HE HAD THE RESOURCES. 16 Q. DO YOU KNOW WHO FRED WALSH IS? 17 A. YES, I DO. 18 Q. TO YOUR KNOWLEDGE, WAS MR. WALSH EVER ON THE RAIL 19 PROJECT? 20 A. I DON'T THINK SO. 21 Q. AS FAR AS YOU KNOW, THE ONLY PERSON IN SAIC L.A. WHO WAS 22 WORKING OR INVOLVED IN TANKER CAR INVESTIGATIONS WAS MS. 23 FITZGERALD; IS THAT FAIR? 24 A. I DON'T KNOW WHO SPECIFICALLY WAS WORKING ON IT BESIDES 25 MS. FITZGERALD. I KNOW THAT THE PARTICULAR TANKER CAR CASE HENSLEY - RECROSS/BEBI 68 1 THAT WE'RE TALKING ABOUT WAS OUT OF THE RAIC RIVERSIDE OFFICE, 2 AND I DON'T REMEMBER ANY OTHER CASES, IF THAT'S -- THAT'S THE 3 BEST WAY I COULD ANSWER THAT. 4 Q. YOU WEREN'T AWARE OF AN SPS PROJECT EITHER, CORRECT? 5 A. NO. 6 Q. IN FACT, DURING YOUR DEPOSITION, YOU DENY EVEN KNOWING 7 WHAT AN SPS PROJECT WAS; IS THAT FAIR? 8 A. THAT'S CORRECT. 9 Q. I THINK AS FAR AS SAIC L.A., YOU'RE NOT AWARE OF ANY 10 OTHER AGENTS WORKING ON TANKER CAR CASES DURING THE TIME THAT 11 YOU WERE SAIC IN SAIC LOS ANGELES? 12 A. THAT'S CORRECT. 13 Q. LET ME GET TO TANKER CARS IN A MOMENT, BUT RIGHT NOW I 14 WANT TO FOCUS ON AWARDS. 15 AS I UNDERSTAND YOUR TESTIMONY, AWARDS WERE GIVEN TO 16 AGENTS FOR GOOD WORK PERFORMED; IS THAT CORRECT? 17 A. YES. 18 Q. BUT THERE WERE -- THERE WAS A LIMITED NUMBER OF FUNDS 19 AVAILABLE IN THE POOL; IS THAT FAIR? 20 A. THAT'S CORRECT. 21 Q. SO YOU WOULDN'T WANT TO GIVE AWARDS FOR FRIVOLOUS 22 REASONS; IS THAT TRUE? 23 A. WE TRY NOT TO. 24 Q. FOR EXAMPLE, YOU WOULDN'T WANT TO GIVE SOMEONE AN AWARD 25 FOR DOING NOTHING ON A PARTICULAR CASE, CORRECT? HENSLEY - RECROSS/BEBI 69 1 A. I WOULD HOPE WE WOULDN'T. 2 Q. OKAY. AND THE FLIP SIDE OF THE COIN IS THAT IF SOMEONE 3 DID DO SOMETHING NOTEWORTHY, LIKE PARTICIPATE IN A SEIZURE OF 4 8,000 POUNDS OF MARIJUANA AND 34 KILOS OF COCAINE, THAT WOULD 5 MERIT SOME SORT OF RECOGNITION, RIGHT? 6 A. AT THE CONCLUSION OF THE CASE, I WOULD SAY WE WOULD LOOK 7 AT ALL THE SEIZURES AND ARRESTS AND ADEQUATELY RECOGNIZE THAT 8 PERSON. 9 Q. WELL, THE TANKER CAR CASE WAS A SIGNIFICANT SEIZURE, IN 10 YOUR OPINION? 11 A. 8,000 POUNDS AND 34 KILOS IS A LOT. 12 Q. AND YOU USED THAT IN YOUR DEPOSITION. I DON'T WANT TO 13 QUIBBLE OVER WORDS. 14 A. THAT'S A LOT. 15 Q. WOULD YOU CONSIDER GIVING AN ENTIRE OFFICE AN AWARD, EVEN 16 A SMALL AMOUNT, FOR HELPING MOVE FURNITURE TO BE A GOOD USE OF 17 THIS LIMITED FUND OF AWARDS? 18 A. IF IT WAS BROUGHT TO MY ATTENTION THAT THAT'S WHAT THE 19 AWARD WAS FOR, NO, IT WOULD NOT BE GOOD USE OF THE MONEY. 20 Q. I THINK YOU TESTIFIED ON DIRECT EXAMINATION THAT YOU WERE 21 NOT ANGERED BY THE ALLEGATIONS MADE AGAINST YOU BY MS. 22 FITZGERALD IN HER EEO PROCESS; IS THAT FAIR? 23 A. THAT'S FAIR. 24 Q. I THINK YOU ALSO TESTIFIED THAT YOU WEREN'T EVEN AWARE 25 THEY HAD CONDUCTED A DEMONSTRATION; IS THAT FAIR? HENSLEY - RECROSS/BEBI 70 1 A. I DON'T REMEMBER IT. 2 Q. YOU DIDN'T READ ABOUT IT IN THE NEWSPAPERS OR SEE IT ON 3 TV; IS THAT CORRECT? 4 A. I JUST DON'T REMEMBER IT. 5 Q. AND NOBODY IN SAIC L.A. BROUGHT IT TO YOUR ATTENTION 6 THAT, "HEY, THESE AGENTS IN RIVERSIDE ARE DEMONSTRATING AND 7 THEY'RE ON TELEVISION AND IN THE NEWSPAPERS"? 8 A. ALL I CAN TELL YOU IS I DON'T REMEMBER IT. 9 Q. OKAY. NOW, WERE YOU AWARE AT SOME POINT IN TIME THAT MS. 10 FITZGERALD HAD WRITTEN TO SENATOR FEINSTEIN COMPLAINING ABOUT 11 EEO RETALIATION? 12 A. NO. 13 Q. AND YOU KNOW SENATOR FEINSTEIN PERSONALLY, CORRECT? 14 A. THAT'S CORRECT. 15 Q. WERE YOU EVER AWARE OF ANY INVESTIGATIONS EMANATING FROM 16 THAT REPORT TO SENATOR FEINSTEIN? 17 A. NOT THAT I'M AWARE OF. 18 Q. ARE YOU AWARE SHE WROTE TO COMMISSIONER KELLY COMPLAINING 19 ABOUT EEO RETALIATION? 20 A. NO, I'M NOT. 21 Q. NO ONE EVER TOLD YOU THAT EITHER? 22 A. NO. 23 Q. YOU NEVER GOT A CALL FROM COMMISSIONER KELLY'S OFFICE 24 SAYING, "HEY, WHAT'S GOING ON DOWN THERE IN RAIC RIVERSIDE"? 25 A. NO, MR. KELLY DID NOT CALL ME. HENSLEY - RECROSS/BEBI 71 1 Q. OR ANYONE FROM HIS OFFICE? 2 A. NO. 3 Q. LET'S TALK FOR A FEW MOMENTS ABOUT THE DIFFERENCE BETWEEN 4 THE OFFICE OF INVESTIGATIONS AND THE OFFICE OF FIELD 5 OPERATIONS. AS A SAIC OF L.A., DID YOU HAVE JURISDICTION OVER 6 THE OFFICE OF FIELD OPERATIONS? 7 A. NO, I DID NOT. 8 Q. NOW, IF AN INVESTIGATION REQUIRED THE INSPECTION OF 9 TANKER CARS AT THE BORDER, WAS THERE SOME PROCESS WHERE YOUR 10 AGENT OR YOUR AGENT'S DIRECT SUPERVISOR IN MANAGEMENT COULD 11 GET THE OFFICE OF FIELD OPERATIONS INVOLVED? 12 A. YES. 13 Q. AFTER ALL, YOU'RE THE SAME AGENCY, CORRECT? 14 A. YES. 15 Q. SO IT'S NOT UNHEARD OF FOR THE TWO ARMS OF THE SAME 16 AGENCY TO WORK TOGETHER? 17 A. WE USUALLY DID. 18 Q. SO IF IT WAS BROUGHT, HYPOTHETICALLY, TO MR. PINKAVA'S 19 ATTENTION THAT THERE WERE FIVE TANKER CARS SITTING IN THE 20 COLTON RAIL YARD THAT OFFICE OF FIELD OPERATIONS WAS NOT 21 INSPECTING, AND THEY WERE MANIFESTED AS EMPTY, BUT YET THEIR 22 WEIGHT INDICATED THEY WERE 25 TO 40 TONS OVERWEIGHT. THEY HAD 23 MANY OF THE SIMILAR IDENTIFYING FACTORS AND CHARACTERISTICS OF 24 THE TANKER CAR THAT MS. FITZGERALD WAS INVOLVED IN WHERE THERE 25 WAS THE SEIZURE OF 8,000 POUNDS OF MARIJUANA AND THE 45 KILOS HENSLEY - RECROSS/BEBI 72 1 OF COCAINE, YOU WOULD EXPECT, GIVEN THE MISSION STATEMENT OF 2 CUSTOMS, THAT SOMEBODY WOULD TAKE A LOOK AT THOSE FIVE TANKER 3 CARS, CORRECT? 4 A. IT WOULD BE THE SUPERVISOR'S REQUEST TO FIELD OPS TO 5 INSPECT THOSE CARS. THAT'S WHAT THEY DO IS INSPECT. 6 Q. YOU WOULD EXPECT AT LEAST A CALL TO BE MADE TO FIELD OPS; 7 ISN'T THAT TRUE? 8 A. THAT'S WHERE THE COORDINATION WOULD OCCUR, BETWEEN THE 9 SUPERVISORY PERSON ON DUTY AND THE PORT DIRECTOR AT CALEXICO 10 AND THE REQUESTING OFFICE, FOR US. 11 Q. BUT THE LAST THING YOU WOULD EXPECT FROM THE MISSION OF 12 CUSTOMS IS THAT NOTHING BE DONE; ISN'T THAT CORRECT? 13 A. BASED UPON THE SPECIFICS OF THE CASE, AS YOU PRESENTED 14 THEM, I WOULD SAY THAT, YES, SOMETHING SHOULD HAVE BEEN DONE. 15 THERE SHOULD HAVE BEEN SOME DISCUSSIONS. I DON'T KNOW ALL THE 16 FACTS. 17 Q. NOW, THERE WAS SOME DISCUSSION HERE ABOUT THE COST OF 18 FIELD OPERATIONS IN LOOKING AT TANKER CARS AND PRESSURE 19 TESTING THEM. LET'S ASSUME, FOR A MOMENT, THAT THE AGENT HAD 20 ARRANGED TO CHECK -- PRESSURE TEST THOSE CARS FOR NO COST, 21 WOULDN'T YOU EXPECT THE SUPERVISOR OR THE RAIC TO PERMIT AT 22 LEAST THE PRESSURE TESTING? 23 A. WELL, IT'S A DIVISION OF FUNCTION. THE INSPECTORS ARE 24 STILL SUPPOSED TO BE INSPECTING. I CAN'T SECOND-GUESS WHAT 25 YOU'RE SAYING WITHOUT KNOWING THE FACTS, BUT INSPECTORS HENSLEY - RECROSS/BEBI 73 1 INSPECT, AND WE REQUIRE THEM TO FULFILL THAT FUNCTION. 2 Q. CORRECT ME IF I'M WRONG, BUT WHEN IT COMES TO 25 TO 40 3 TONS OF POTENTIAL CONTRABAND, THE COST IN CHECKING IT IS DE 4 MINIMUS COMPARED TO THE POTENTIAL BUST THAT'S THERE; ISN'T 5 THAT CORRECT? 6 MR. STUTLER: OBJECTION, ARGUMENTATIVE. 7 THE COURT: OVERRULED. 8 A. THE COSTS I THINK -- AND THAT'S WHY I SAY INSPECTORS 9 INSPECT, THEY HAVE FUNDS TO DO THOSE INSPECTIONS, AND THEY 10 ALSO HAVE THE ABILITY, BY LAW, TO CHARGE AGAINST THE IMPORTER, 11 WHEREAS THE AGENTS DON'T. IT'S A PROCEDURAL PROCESS. IF 12 THERE WERE A DENIAL OR REFUSAL BY INSPECTIONS TO DO THAT, THEN 13 IT WOULD HAVE TO COME UP THE LADDER TO DEAL WITH. IF THERE'S 14 A FEELING THAT THERE'S ACTUALLY SOMETHING THERE, IT COULD BE 15 JUSTIFIED, SOMEONE SHOULD BE LOOKING AT IT. 16 Q. AND JUST TO BE FAIR, WOULD SOMETHING LIKE THIS BE BROUGHT 17 TO YOUR ATTENTION BY THE SUPERVISORS IN THE OFFICE? 18 A. IF IT WERE ENOUGH OF A CONFLICT AND COULD NOT BE RESOLVED 19 BELOW MY LEVEL, IT WOULD ULTIMATELY RISE TO MY LEVEL, IF 20 SOMEONE WANTED TO DRIVE IT THAT FAR UP. 21 Q. LET'S ASSUME THAT THERE'S 25 TO 40 TONS OVERWEIGHT ON 22 THESE TANKER CARS, AND OFFICE OF FIELD OPERATIONS IS NOT 23 INSPECTING THEM, AND THE AGENT HAS REQUESTED PERMISSION TO 24 TAKE A LOOK AND SEE WHAT'S IN THESE CARS, WOULDN'T YOU EXPECT 25 SOMEONE FROM RAIC RIVERSIDE OFFICE TO GIVE YOU -- SAIC L.A. A HENSLEY - RECROSS/BEBI 74 1 CALL? 2 MR. STUTLER: OBJECTION, INCOMPLETE HYPOTHETICAL. 3 THE COURT: DO YOU UNDERSTAND IT? 4 THE WITNESS: KIND OF. 5 THE COURT: CAN YOU ANSWER IT? 6 THE WITNESS: IT SHOULD RISE TO THE NEXT LEVEL, WHICH 7 WOULD BE THE ASAC LEVEL, AND THEN THE ASSOCIATE LEVEL, AND 8 THEN TO MY LEVEL. 9 Q. AS WE SIT HERE TODAY, DO YOU HAVE ANY RECOLLECTION OF 10 SAIC LOS ANGELES, YOUR HUB, RECEIVING ANY REQUEST FROM MR. 11 PINKAVA TO ALLOW MS. FITZGERALD TO PRESSURE TEST THOSE CARS? 12 A. NOT TO MY LEVEL. 13 Q. DO YOU HAVE ANY KNOWLEDGE OF ANYONE AT ANY LEVEL 14 RECEIVING A REQUEST FOR PERMISSION TO PRESSURE TEST THOSE 15 TANKER CARS? 16 A. IF THEY DID, I WASN'T AWARE OF IT. 17 Q. NO ONE BROUGHT IT TO YOUR ATTENTION, ONE WAY OR THE 18 OTHER, CORRECT? 19 A. THAT'S CORRECT. 20 MR. BEBI: I BELIEVE THAT'S ALL I HAVE, YOUR HONOR. 21 THE COURT: MR. STENNETT. 22 MR. STENNETT: YES. 23 CROSS-EXAMINATION 24 BY MR. STENNETT: 25 Q. GOOD AFTERNOON, MR. HENSLEY, MY NAME IS JACK STENNETT. HENSLEY - RECROSS/BEBI 75 1 WE HAVEN'T MET BEFORE, BUT I REPRESENT SANDY NUNN HERE TODAY. 2 LET ME TALK, FIRST OFF, ABOUT THE TRANSFER OF SANDRA 3 NUNN FROM TERMINAL ISLAND TO HIDTA, AND YOU'VE TESTIFIED THAT 4 THERE WAS -- THAT MR. GWALTNEY, AND/OR MR. GWALTNEY AND MR. 5 POWELL, HAD COME TO YOU AT SOME POINT IN TIME, OR MAYBE IT WAS 6 MR. COOPER, I'M NOT SURE WHICH ONE OF THE UPPER SUPERVISORS 7 CAME TO YOU TO SHOW YOU HER STATS; IS THAT CORRECT? 8 A. IT WOULD PROBABLY BE MR. SHINTANI AND MR. GWALTNEY. 9 Q. OKAY, MR. SHINTANI AND MR. GWALTNEY. PRIOR TO THAT, DID 10 YOU KNOW WHO SANDY NUNN WAS? 11 A. I KNEW WHO SHE WAS, YES. 12 Q. HOW DID YOU KNOW WHO SHE WAS? 13 A. SHE WORKED IN MY OFFICE. I TRIED TO KNOW WHO ALL MY 14 AGENTS WERE, WITHIN THE OFFICE, WALKING AROUND. 15 Q. DO YOU RECALL WHEN IT WAS THAT THEY CAME TO YOU AND 16 SHOWED YOU HER STATS? 17 A. NOT SPECIFICALLY. 18 Q. DO YOU RECALL WHAT YEAR IT WAS? WAS IT 1997? 19 A. IT WOULD HAVE BEEN '97. 20 Q. DO YOU RECALL WHETHER IT WAS THE LAST HALF OF '97 OR THE 21 FIRST HALF OF '97? 22 A. TO BE FRANK WITH YOU, I THINK IT WAS PROBABLY IN THE 23 MIDDLE OF THE YEAR. 24 Q. ALL RIGHT. BY THE WAY, LET ME SHOW YOU EXHIBIT 5 FOR A 25 MOMENT. DO YOU RECOGNIZE THAT DOCUMENT, SIR? HENSLEY - RECROSS/BEBI 76 1 A. NO, I DON'T. (WITNESS CONTINUES TO REVIEW EXHIBIT.) 2 Q. IS THERE ANYTHING ABOUT THAT DOCUMENT THAT YOU RECOLLECT? 3 A. I'M AWARE OF THE PROCESSES IT DESCRIBES, BUT I'M STILL -- 4 DON'T KNOW WHAT THIS DOCUMENT IS. 5 Q. OKAY, FINE. GOING BACK TO ABOUT MID-1997, WHEN MR. 6 SHINTANI AND MR. GWALTNEY BROUGHT TO YOUR ATTENTION THAT MS. 7 NUNN'S STATS WERE LOW, WAS THAT THE ONLY AGENT THEY TALKED TO 8 YOU ABOUT? 9 A. NO. WE GENERALLY LOOKED OVER THE STATS OF ALL THE AGENTS 10 IN THE OFFICE, THE HIGH ACHIEVERS AND THOSE THAT WERE NOT HIGH 11 ACHIEVERS. 12 Q. SO THERE WERE SEVERAL AGENTS, FAIR TO SAY, THAT WERE 13 DISCUSSED AT THAT TIME? 14 A. YES. 15 Q. AND ONE THING I THINK YOU TESTIFIED TO IS WHEN THIS WAS 16 BROUGHT TO YOUR ATTENTION YOU ASKED THAT MR. GWALTNEY AND MR. 17 SHINTANI HELP HER OUT, TRY TO GET HER, I GUESS, TO BE MORE 18 PRODUCTIVE, RIGHT? 19 A. YES. 20 Q. DID YOU HAVE ANY SPECIFIC SUGGESTIONS TO THEM ABOUT WHAT 21 THEY SHOULD DO? 22 A. NO. 23 Q. DID YOU GET ANY FEEDBACK FROM THEM AS TO WHAT THEY DID TO 24 TRY TO MAKE HER MORE PRODUCTIVE? 25 A. I DON'T REMEMBER OTHER THAN TELLING THEM, "THIS IS HENSLEY - RECROSS/BEBI 77 1 SOMEBODY THAT NEEDS TO BE MORE PRODUCTIVE AND SEE WHAT YOU CAN 2 DO." 3 Q. DO YOU RECALL IF THEY EVER INDICATED THEY EVER SAT DOWN 4 WITH HER AND EVEN TALKED TO HER ABOUT THIS SUBJECT? 5 A. WELL, THAT WOULD BE MY ASSUMPTION THAT THE SUPERVISORS AT 6 THAT IMMEDIATE LEVEL WOULD TALK TO THEM, AND, QUITE FRANKLY, 7 THAT THE ASAICS WOULD TALK TO THE SUPERVISOR TO FIND OUT THE 8 REASONS. 9 Q. AND WHEN A SUPERVISOR SITS DOWN WITH AN AGENT TO DISCUSS 10 THEIR PERFORMANCE, OR LACK THEREOF, IS THERE OFTEN SOMETIMES 11 SOME DOCUMENTATION OF THAT? 12 A. THEY'RE SUPPOSED TO WRITE IT DOWN IF THEY'VE HAD A 13 DISCUSSION WITH AN EMPLOYEE. 14 Q. THEN THE NEXT -- IS IT FAIR TO STATE THAT THE NEXT TIME 15 THAT MS. NUNN'S NAME CAME TO YOUR ATTENTION WAS IN JANUARY OF 16 1998, WHEN YOU WERE DISCUSSING ROTATING OR REASSIGNING OF 17 AGENTS? 18 A. IT WAS -- ACTUALLY WOULD HAVE BEEN THE FOURTH QUARTER, SO 19 IT WAS PROBABLY IN NOVEMBER/DECEMBER OF '97. 20 Q. AND THAT, AGAIN, WAS WITH THE REVIEW OF THE PERFORMANCE 21 OF VARIOUS AGENTS? 22 A. YES. I THINK I STATED IT WAS A QUARTERLY PROCESS THAT WE 23 WENT THROUGH. 24 Q. AND THAT WOULD BE WHERE IT WAS DISCUSSED, AS YOU 25 TESTIFIED EARLIER, AND THERE DIDN'T SEEM TO BE AN IMPROVEMENT HENSLEY - RECROSS/BEBI 78 1 IN MS. NUNN'S PERFORMANCE? 2 A. YES. 3 Q. AND THEN THE NEXT DISCUSSION REGARDING MS. NUNN WOULD 4 THAT HAVE BEEN IN JANUARY, WITH THE DISCUSSION OF 5 REASSIGNMENT? 6 A. IT WAS PROBABLY IN DECEMBER. 7 Q. AND THERE WERE SEVERAL AGENTS THAT APPARENTLY WERE 8 REASSIGNED, YOU SAID OVER A DOZEN AT THAT POINT IN TIME? 9 A. DURING THE YEAR, IT WOULD HAVE PROBABLY BEEN OVER A 10 DOZEN. 11 Q. DURING THE YEAR -- THERE WAS A REASSIGNMENT OF SEVERAL 12 AGENTS IN JANUARY; IS THAT CORRECT? 13 A. I BELIEVE SO. 14 Q. SO IN JANUARY, WHEN YOU REASSIGNED THESE AGENTS, WHAT 15 SORT OF THINGS DID YOU TAKE INTO CONSIDERATION IN THESE 16 ASSIGNMENTS? 17 A. THE RECOMMENDATIONS OF THE ASSOCIATE SAIC, THE ASSISTANT 18 SAIC, AND LOOKING AT THE INDIVIDUAL WHERE THEY COULD BE BETTER 19 PRODUCTIVE. 20 Q. AND WOULD ONE OF THE THINGS YOU WOULD TYPICALLY WANT TO 21 FIND OUT, IN MAKING REASSIGNMENTS, IS TO FIND OUT WHERE THE 22 AGENT WOULD LIKE TO WORK? 23 A. THAT WASN'T THE PRIMARY CRITERIA. CERTAINLY IF WE COULD 24 FIT SOMEBODY WHERE THEY COULD BE MORE PRODUCTIVE, AND IT 25 COINCIDED WITH SOMETHING THEY WOULD LIKE TO DO, WE DID THAT. HENSLEY - RECROSS/BEBI 79 1 Q. SO IT WOULD BE A CONSIDERATION? 2 A. YES. 3 Q. PARTICULARLY WHEN YOU'RE TRYING TO REASSIGN SOMEBODY TO 4 ACTUALLY HELP THEIR PERFORMANCE AND HELP THEIR CAREER, 5 CORRECT? 6 A. YES. 7 Q. BECAUSE IF YOU REASSIGN SOMEBODY TO SOMEPLACE THEY DON'T 8 WANT TO GO, THAT WOULD BE MUCH MORE DIFFICULT FOR THEM TO HELP 9 THEM THAN IF THEY WERE HAPPY ABOUT THE TRANSFER, DID YOU 10 AGREE -- THAT WAS A LITTLE COMPLEX, SORRY. 11 DO YOU KNOW WHETHER OR NOT ANYONE FROM MANAGEMENT 12 LEVEL INQUIRED OF MS. NUNN WHERE SHE WOULD LIKE TO BE 13 REASSIGNED? 14 A. I DON'T KNOW. 15 Q. AS A MATTER OF FACT, I BELIEVE YOU ISSUED A MEMO ON JUNE 16 5TH, AND LET ME SHOW YOU WHAT'S BEEN MARKED AS -- I'M SORRY, 17 JANUARY 5TH -- LET ME CORRECT MYSELF, JANUARY 15TH, WHICH 18 WE'VE MARKED AS EXHIBIT 11. LET ME SHOW IT TO YOU. 19 MR. STENNETT: I BELIEVE THIS IS ALREADY IN EVIDENCE. 20 THE CLERK: YES. 21 Q. JUST SO EVERYBODY CAN CONTINUE TO KIND OF FOLLOW ALONG ON 22 THIS TOGETHER, LET ME GO AHEAD AND PUT IT ON THE ELMO OR THE 23 OVERHEAD. YOU'LL BE ABLE TO SEE IT THERE, TOO. 24 YOU SEE JANUARY 15TH IN THE UPPER LEFT-HAND CORNER, 25 "TO ALL SAIC L.A. GROUP SUPERVISORS, SUBJECT: WORK EXPERIENCE HENSLEY - RECROSS/BEBI 80 1 QUESTIONNAIRE." DO YOU RECALL SEEING THIS MEMO? 2 A. YES, I DID. 3 Q. IT TALKS ABOUT THE "EXPECTED INFLUX OF NEW PERSONNEL IN 4 THE NEXT SIX MONTHS." WHAT WERE YOU REFERRING TO? 5 A. WE WERE ADVISED WE WERE GOING TO RECEIVE OR EXPECTED TO 6 RECEIVE INCREASED STAFFING IN THE SAIC OFFICE, ADDITIONAL 7 PERSONNEL. 8 Q. WOULD THAT RESULT IN ANYMORE SHIFTING AROUND OF 9 PERSONNEL? 10 A. YES, IT WOULD. 11 Q. AND SO YOU WANTED MORE INFORMATION, APPARENTLY. I'M -- 12 LET'S SEE IF I CAN'T INTERPRET THIS -- CORRECT ME IF I'M 13 WRONG -- YOU WANTED MORE INFORMATION TO HELP YOU WITH THOSE 14 REASSIGNMENTS, CORRECT? 15 A. YES, THE SENIOR STAFF AND I CONCURRED IN THAT WE FELT WE 16 WOULD LIKE TO HAVE KIND OF A MASTER LOOK AT THE AGENTS IN THE 17 OFFICE AND HAVE A BETTER UNDERSTANDING OF THEIR BACKGROUND. 18 Q. AND HOW LONG HAD THIS PROCESS -- THIS WAS ISSUED ON THE 19 15TH, BUT IT WASN'T SOMETHING THAT JUST CAME TO YOU ON THE 20 15TH, WAS IT, THE IDEA OF WANTING TO GET MORE INFORMATION? 21 A. I THINK IT WAS WITHIN THE PREVIOUS FEW WEEKS OF THAT TIME 22 PERIOD. 23 Q. ALL RIGHT. AND IF WE LOOK AT NO. 6 OF THE LIST OF 24 INFORMATION YOU'RE REQUESTING IT SAYS, "OFFICE GROUP IN WHICH 25 YOU WOULD MOST DESIRE TO WORK WITHIN THE SAIC L.A.," AND HENSLEY - RECROSS/BEBI 81 1 THAT'S BASICALLY ASKING THE AGENTS, "WHERE DO YOU WANT TO 2 WORK"? 3 A. YES. 4 Q. WHAT WAS YOUR EXPECTED INFLUX OF AGENTS? WHAT WERE YOU 5 EXPECTING TO HAVE COME INTO THE AGENCY IN L.A.? 6 A. I DON'T REMEMBER THE AMOUNT, I JUST KNOW THAT WE HAD BEEN 7 TOLD THAT, BASED UPON THE BUDGET AND STAFFING, THAT THERE 8 WOULD PROBABLY BE AN INCREASE OF STAFF COMING TO LOS ANGELES. 9 Q. OF THE VARIOUS AGENTS THAT WERE REASSIGNED IN JANUARY, DO 10 YOU KNOW IF ANY OF THEM HAD REQUESTED OR EXPRESSED A DESIRE TO 11 GO TO HIDTA? 12 A. AT THIS TIME I DON'T REMEMBER. 13 Q. WOULD THAT HAVE BEEN SOMETHING THAT WOULD HAVE BEEN 14 BROUGHT TO YOUR ATTENTION OR IS THAT SOMETHING AT THE LOWER 15 MANAGEMENT LEVEL? 16 A. IT WOULD MORE LIKELY BE AT THE LOWER MANAGEMENT LEVELS, 17 BUT THE ASAC OR THE SAIC OR DEPUTY SAIC, IF THEY KNEW IT, 18 WOULD MOST LIKELY COMMUNICATE IT. 19 Q. SO BEFORE YOU MAKE A REASSIGNMENT, WOULD IT BE FAIR TO 20 SAY YOU WILL TALK WITH THE FIRST LINE SUPERVISOR TO GET THAT 21 TYPE OF INFORMATION? 22 A. I WOULDN'T, NO. 23 Q. WHO WOULD? 24 A. THE ASAICS WOULD BE TALKING TO THEM. 25 Q. SO IN THIS CASE MR. GWALTNEY? HENSLEY - RECROSS/BEBI 82 1 A. YES. 2 Q. WOULD BE TALKING WITH MR. POWELL? 3 A. I WOULD THINK SO. 4 Q. ALL RIGHT. AND WHAT ABOUT, LET'S SAY, MR. FOWLER, WHO 5 WAS THE -- IS HE THE ASAC OF HIDTA? 6 A. NO, MR. FOWLER DIDN'T GET -- HE MADE THE REQUEST TO US 7 FOR STAFF, IF WE WERE FULFILLING HIS REQUEST FOR PEOPLE. 8 Q. AND HE HAD BEEN SHORTHANDED WITH PEOPLE FOR QUITE SOME 9 TIME, CORRECT? 10 A. THAT'S CORRECT. 11 Q. WASN'T THAT KIND OF A CHRONIC ISSUE OVER AT HIDTA? 12 A. AS WE CONTINUED TO PROMOTE PEOPLE, YES, IT SEEMS LIKE WE 13 ALWAYS HAD TO FILL SOMEBODY INTO HIDTA. 14 Q. THEN JUST TO COMPLETE THIS THOUGHT, EXHIBIT 10, WHICH YOU 15 WERE SHOWN EARLIER, THAT IS YOUR MEMO ADVISING -- WHO IS THAT 16 SENT TO, BY THE WAY? IF WE HAD A NAME, WHO WOULD THAT BE? 17 ASAC BORDER INVESTIGATIONS, IS THAT MR. GWALTNEY? 18 A. I BELIEVE IT IS MR. GWALTNEY. 19 Q. AND THAT'S NOTIFYING HIM THAT -- OF THE REASSIGNMENT OF 20 MS. NUNN, CORRECT? 21 A. YES. 22 Q. NOW, IN ADDITION TO -- I UNDERSTAND THERE'S SEVERAL 23 CONSIDERATIONS IN DECIDING TO REASSIGN SOMEONE, AND ONE OF 24 THOSE IS WHERE THEY MIGHT WANT TO BE REASSIGNED. ONCE THEY'RE 25 REASSIGNED, ISN'T IT A GOOD IDEA TO TELL THEM WHY THEY'RE HENSLEY - RECROSS/BEBI 83 1 REASSIGNED, PARTICULARLY IF IT'S TO ENHANCE PERFORMANCE? 2 A. I THINK THAT'S PART OF THE DUTIES OF THE SUPERVISOR, YES. 3 Q. BUT YOU THINK THAT WOULD BE A GOOD MANAGEMENT TECHNIQUE? 4 A. CERTAINLY. 5 Q. YOUR MEMO DIDN'T REALLY INDICATE WHY SANDY NUNN, OUT OF 6 ANY OTHER AGENT, WOULD BE ASSIGNED TO HIDTA, CORRECT? 7 A. WELL, IT'S BASICALLY A SHORT MEMO THAT JUST SAYS THAT 8 THIS IS THE PERSON BEING REASSIGNED FROM YOUR DIVISION TO 9 ANOTHER DIVISION. 10 Q. SO YOU DIDN'T CONSIDER THAT PART OF YOUR FUNCTION, YOU 11 WERE JUST TELLING THEM WHO GOES WHERE, RIGHT? 12 A. THAT'S CORRECT. 13 THE COURT: ALL RIGHT, LADIES AND GENTLEMEN, IT'S 14 2:45, ACCORDING TO MY WATCH. IT'S TIME TO TAKE AN AFTERNOON 15 BREAK. PLEASE BE BACK AT 3:00. THANK YOU. 16 (THE FOLLOWING OCCURRED OUTSIDE THE PRESENCE OF THE JURY.) 17 MR. HENSLEY, YOU MAY STEP DOWN. 18 (COURT WAS AT RECESS.) 19 THE CLERK: JURY ENTERING. 20 (THE FOLLOWING OCCURRED IN THE PRESENCE OF THE JURY.) 21 THE COURT: MR. STENNETT, GO AHEAD. 22 MR. STENNETT: THANK YOU, YOUR HONOR. 23 Q. (BY MR. STENNETT) LET'S TALK ABOUT HIDTA NOW. THERE ARE 24 SEVERAL GROUPS WITH HIDTA, CORRECT? 25 A. YES. HENSLEY - RECROSS/BEBI 84 1 Q. AND THERE'S SEVERAL LOCATIONS FOR HIDTA, AS I UNDERSTAND 2 IT, OR MORE THAN ONE LOCATION? 3 A. I BELIEVE THERE'S TWO. 4 Q. IN L.A., WILL YOU TELL ME WHAT THE DIFFERENT GROUPS ARE 5 OR WERE AT THAT TIME OR MAYBE JUST TELL ME DO YOU HAVE AN IDEA 6 HOW MANY THERE WERE? 7 A. I BELIEVE THERE WERE SIX, SIX DIFFERENT OPERATING GROUPS. 8 Q. THEY ALL HAD DIFFERENT FUNCTIONS, I ASSUME? 9 A. SOME HAD THE SAME FUNCTIONS, OTHERS HAD DIFFERENT 10 FUNCTIONS. 11 Q. AND YOU INDICATED THAT THAT WOULD BE A GOOD FIT FOR MS. 12 NUNN BECAUSE IT WOULD ALLOW HER TO GIVE HER MORE EXPERIENCE. 13 WHAT DO YOU MEAN BY THAT, "MORE EXPERIENCE," IS THAT THE TITLE 14 3 SURVEILLANCE? 15 A. YES, THE MORE COMPLEX CASES. IT WAS MY UNDERSTANDING SHE 16 HAD NOT WORKED TITLE 3 CASES. HER BACKGROUND WAS AS AN 17 ELECTRICAL ENGINEER, AS I UNDERSTOOD IT, SO IT WAS A NATURAL 18 FIT TO WORK IN HIDTA WHERE YOU'VE GOT A HIGH-TECH STRUCTURE 19 WITH LOTS OF EQUIPMENT. THEY PROBABLY HAD MORE EQUIPMENT THAN 20 ANY OTHER SINGLE INFORMANT GROUP IN SOUTHERN CALIFORNIA. 21 Q. WHERE DID YOU GET THE INFORMATION SHE HAD NO TITLE 3 22 CASES? 23 A. I DON'T REMEMBER HER HAVING ANY TITLE 3 EXPERIENCE IN MY 24 TIME THERE AT SAIC L.A. 25 Q. I'M SORRY? HENSLEY - RECROSS/BEBI 85 1 A. I DON'T REMEMBER HER HAVING TITLE 3 EXPERIENCE. 2 Q. WOULD YOU HAVE GOTTEN THAT INFORMATION FROM MR. GWALTNEY? 3 A. I DON'T REMEMBER. I JUST DONE REMEMBER HER HAVING ANY 4 TITLE 3 EXPERIENCE. 5 Q. WAS THAT PART OF YOUR CONVERSATION IN TRANSFERRING HER TO 6 HIDTA? 7 A. YES. 8 Q. AND THE OTHER THING YOU SAID WAS THAT -- TO GET HER STATS 9 UP, GIVE HER SOME STATS? 10 A. YES. 11 Q. IT WAS EASY TO GET STATS AT HIDTA? 12 A. THE OPPORTUNITY TO GAIN STATS IS, I THINK, MUCH HIGHER AT 13 HIDTA THAN IT IS IN A LOT OF OTHER GROUPS. 14 Q. YOU'RE FAMILIAR WITH TOG, TECHNOLOGIES OPERATION GROUP? 15 A. NOT BY THAT NAME, NO. 16 Q. DO YOU RECOGNIZE -- DO YOU KNOW WHAT GROUP SHE WAS 17 ASSIGNED TO AT HIDTA? 18 A. TITLE 3 OPERATIONS GROUP IS ALL I KNOW. 19 Q. DID SHE OBTAIN ANY STATS FROM HER TIME AT HIDTA? 20 A. I DON'T BELIEVE SHE DID. 21 Q. DID YOU ATTRIBUTE THAT TO HER LACK OF PRODUCTION OR LACK 22 OF WORK? 23 A. I DON'T THINK I ATTRIBUTED IT TO ANYTHING ONE WAY OR THE 24 OTHER. 25 Q. WHEN YOU -- I'M SORRY, GOING BACK IN TIME WHEN YOU WERE HENSLEY - RECROSS/BEBI 86 1 FIRST REVIEWING OR LET'S SAY IN DECEMBER, WHEN YOU WERE 2 REVIEWING MS. NUNN'S PERFORMANCE ON THAT QUARTERLY REVIEW, 3 BEFORE HER ASSIGNMENT, WAS THE MAJOR THING THAT STOOD OUT WERE 4 THE LACK OF STATS? 5 A. YEAH, THAT WAS ONE OF THE THINGS THAT STOOD OUT, YES. 6 Q. WAS THERE ANYTHING ELSE THAT WAS OF SIGNIFICANT CONCERN 7 TO YOU AT THAT TIME? 8 A. I THINK LACK OF MAJOR CASES. 9 Q. WHICH KIND OF CORRELATES WITH LACK OF STATS? 10 A. LACK OF LARGE, COMPLEX, LEVEL 1 CASES. 11 Q. NOW, YOU MENTIONED THAT WHEN SHE WAS TRANSFERRED YOU WERE 12 NOT AWARE OF HER HAVING FILED AN EEO STATEMENT IN SUPPORT OF 13 MS. CATALAN-FITZGERALD'S EEO COMPLAINT. 14 A. THAT'S RIGHT. 15 Q. DID YOU SOMETIME SEE THAT STATEMENT? 16 A. I BECAME AWARE OF IT SOME MONTHS LATER, BUT I DON'T KNOW 17 IF I EVER SAW THE STATEMENT ITSELF. 18 Q. DID YOU KNOW WHAT SHE HAD PUT -- SET FORTH IN HER 19 STATEMENT, THE GIST OF WHAT SHE SET FORTH IN HER STATEMENT? 20 A. IT'S BEEN TOO LONG AGO, I'M SORRY, I DON'T KNOW. 21 Q. IF I ADVISE YOU SHE INDICATED THAT MANAGEMENT WAS PLAYING 22 DEFINITE FAVORITES WITH CERTAIN AGENT PERSONNEL TO THE 23 EXCLUSION OF OTHERS, WITH REGARD TO HOW CASES AND/OR OTHER 24 ASSIGNMENTS ARE TO BE DIVIDED AND CARRIED OUT, AND BY ENGAGING 25 IN FAVORITISM WITH REGARD TO PROMOTIONS, AND, MOST HENSLEY - RECROSS/BEBI 87 1 SIGNIFICANTLY OF ALL, HAD AN ATTITUDE OF MANAGEMENT WHICH I 2 WOULD TERM MANAGEMENT BY THREAT, THERE IS A DEFINITE ATTITUDE 3 IN THE OFFICE OF THE WAY YOU KEEP THE AGENTS UNDER CONTROL IS 4 TO THREATEN THEM AND INTIMIDATE THEM INTO SUBMISSION; DOES 5 THAT SOUND FAMILIAR TO YOU AS TO WHAT SHE INDICATED IN SUPPORT 6 OF MS. FITZGERALD'S CLAIM? 7 A. I DON'T RECALL THAT. 8 Q. WOULD YOU AGREE WITH THAT STATEMENT OR DISAGREE WITH THAT 9 STATEMENT? 10 A. DISAGREE. 11 Q. YOU WOULD STRONGLY DISAGREE WITH THAT STATEMENT, I 12 ASSUME? 13 A. YES. 14 Q. THAT'S NOT THE TYPE OF OFFICE THAT YOU WOULD AT LEAST 15 WANT TO BE PERCEIVED AS RUNNING, RIGHT? 16 A. THAT'S CORRECT. 17 Q. NOW, YOU ALSO INDICATED THAT YOU KEPT -- YOU RECEIVED 18 REPORTS FROM MR. FOWLER REGARDING MS. NUNN'S PROGRESS AT 19 HIDTA? 20 A. YES. 21 Q. AND THAT THE REPORTS WERE NOT FAVORABLE? 22 A. THAT'S CORRECT. 23 Q. AND THAT AS THE SUMMER GREW ON THEY GOT WORSE? 24 A. YES. 25 Q. HOW DO YOU EXPLAIN THEN THAT IN AUGUST OF 1998 YOU GAVE HENSLEY - RECROSS/BEBI 88 1 MS. NUNN AN AWARD FOR HER WORK AT HIDTA AT THE SUGGESTION OF 2 MR. FOWLER? 3 A. MR. FOWLER WAS, I BELIEVE AT THAT POINT, TRYING TO 4 MOTIVATE HER AND HE RECOMMENDED THE AWARD. IT WAS QUESTIONED 5 AT THE TIME, AND HE FERVENTLY BELIEVED IT WAS THE RIGHT THING 6 TO DO, SO WE WENT ALONG WITH HIS WISHES. 7 Q. AND IT WAS A CASH AWARD, TOO? 8 A. I DON'T REMEMBER WHAT KIND OF AWARD IT WAS. 9 Q. I THOUGHT EARLIER IN YOUR TESTIMONY YOU INDICATED YOU 10 WOULDN'T GIVE AWARDS OUT TO PEOPLE THAT DIDN'T DESERVE IT. 11 A. THEY HAD TO BE JUSTIFIED BY THE SUPERVISOR, AND MR. 12 FOWLER BELIEVED IT WAS SOMETHING TO GIVE INCENTIVE TO HER AND 13 MAKE HER PRODUCTIVE. 14 Q. MR. FOWLER, IN PROVIDING THAT AWARD -- I'M GOING TO PUT 15 UP ON THE SCREEN, IT'S ALREADY IN EVIDENCE, EXHIBIT 4U, AND 16 IT'S A LITTLE TOUGH TO READ, BUT DO YOU RECOGNIZE THAT TYPE OF 17 DOCUMENT? 18 A. YES. 19 Q. WHAT IS THIS -- WHAT'S THIS FORM USED FOR? 20 A. IT'S FOR THE SUPERVISOR TO RECOMMEND AN INDIVIDUAL FOR AN 21 AWARD. 22 Q. IS THIS THE ACTUAL DOCUMENT IN WHICH MR. FOWLER MADE A 23 RECOMMENDATION THAT MS. NUNN RECEIVE AN AWARD FOR HER 24 PERFORMANCE AT HIDTA? 25 A. YES. HENSLEY - RECROSS/BEBI 89 1 Q. BECAUSE IT'S HARD TO READ, LET ME JUST ASK YOU TO TAKE A 2 LOOK AT IT IN PERSON. 3 THE CLERK: COUNSEL, WHAT EXHIBIT IS THAT? 4 MR. STENNETT: EXHIBIT 4U. 5 Q. LET ME ASK YOU TO GO AHEAD AND READ WHAT MR. FOWLER 6 STATED ABOUT MS. NUNN'S PERFORMANCE AT HIDTA AND ASK YOU 7 WHETHER OR NOT THAT WAS A TRUE STATEMENT OR NOT. 8 A. IF MR. FOWLER PUT IT DOWN, HE'S A TRUTHFUL INDIVIDUAL, 9 AND I WOULD TRUST HIS JUDGMENT TO SAY THAT HE PUT THE TRUTH IN 10 THIS STATEMENT. 11 Q. HE DIDN'T PUT ANYTHING IN THERE THAT HE WANTED TO GIVE 12 HER AN AWARD TO ENCOURAGE HER, TO MAKE HER FEEL GOOD ABOUT 13 HERSELF, RIGHT? 14 A. I CAN TELL YOU THAT HIS STATEMENT TO ME WHEN I ASKED WHY 15 HE WAS PUTTING HER IN FOR IT WAS SHE HAD DONE SOME INVENTORY 16 WORK, HE WANTED TO PUT HER IN FOR IT, AND HE FELT THAT WOULD 17 MOTIVATE HER. 18 Q. ALSO, AS HE SAYS HERE, SHE DID GOOD WORK? 19 A. THAT'S HIS STATEMENT. 20 Q. DID YOU HAVE ANY REASON TO DISAGREE WITH HIS 21 CHARACTERIZATION OF HER WORK? MOST EVERYTHING YOU HEARD ABOUT 22 MS. NUNN AT THIS POINT IS THROUGH HIM, WHAT'S GOING ON OUT AT 23 HIDTA, CORRECT? 24 A. AS I SAID, ON HER INITIAL ASSIGNMENT HE WAS OPTIMISTIC, 25 AND IT BECAME LESS OPTIMISTIC. HE PRESENTED THE OPPORTUNITY HENSLEY - RECROSS/BEBI 90 1 TO GIVE HER AN AWARD, WHICH HE THOUGHT WOULD MOTIVATE HER. HE 2 CREATED A DOCUMENT WHICH HE FELT WAS FACTUAL, AND IT DIDN'T 3 SEEM TO WORK. HER WORK FELL OFF EVEN MORE, AND SHE BECAME 4 MORE OF A PROBLEM AT HIDTA. 5 Q. BY THE WAY, AS FAR AS CASH AWARDS GO, I THINK YOU 6 INDICATE -- IN JUST KIND OF FAST FORWARD -- IN THIS DEPO THAT 7 A $100 CASH AWARD IS KIND OF AT THE LOW END. 8 A. YES. 9 Q. AND A $500 CASH AWARD IS AT THE HIGH END. 10 A. AT THE UPPER END, YES. 11 Q. AND THEN, AS I UNDERSTAND THE PROGRESSION, EVENTUALLY 12 THERE WERE COMPLAINTS BY DEA ABOUT MS. NUNN. THEY WANTED HER 13 OUT OF HIDTA. THEY INDICATED SHE WAS VIOLATING LEAVE RULES 14 AND OUTSIDE EMPLOYMENT, AND SHE EVENTUALLY THEN TRANSFERRED, I 15 BELIEVE, IN NOVEMBER OF 1998, BACK TO TERMINAL ISLAND, 16 CORRECT? 17 A. YES. 18 Q. TOWARDS THE END OF '98 THERE WAS AN INVESTIGATION 19 REGARDING THE VIOLATIONS ALLEGED BY DEA, CORRECT? 20 A. YES. 21 Q. DO YOU KNOW WHO AT DEA WAS MAKING THESE ALLEGATIONS? 22 A. WELL, THE OFFICIAL WORD CAME TO ME FROM THE DIRECTOR OF 23 HIDTA, WHO WAS AT THAT POINT, I BELIEVE, A DEPUTY SAIC AT DEA. 24 Q. YOU INDICATED THAT THE INVESTIGATION DISCLOSED THAT MS. 25 NUNN WAS MAKING CALLS FROM WORK TO FURTHER HER BUSINESS? HENSLEY - RECROSS/BEBI 91 1 A. YES. 2 Q. DO YOU HAVE A SPECIFIC RECOLLECTION THAT THAT WAS THE 3 FINDINGS? 4 A. THAT'S WHAT I WAS TOLD BY THE DEA OFFICIALS. 5 Q. BUT THEN IN THE INVESTIGATION, THAT WASN'T BORNE OUT, WAS 6 IT? 7 A. I DON'T REMEMBER. 8 Q. I'M GOING TO SHOW YOU EXHIBIT 20. 9 MR. STENNETT: IF I COULD GET EXHIBIT 20 FROM THE 10 CLERK. 11 Q. MR. HENSLEY, I'M GOING TO HAND YOU EXHIBIT NO. 20. IT'S 12 A STACK OF DOCUMENTS. I'M NOT GOING TO ASK YOU TO LOOK AT ALL 13 OF THEM. I'M GOING TO DIRECT YOUR ATTENTION TO CERTAIN 14 DOCUMENTS YOU MAY HAVE KNOWLEDGE ABOUT. 15 A. OKAY. 16 Q. IF YOU LOOK TOWARDS THE BACK -- BEFORE WE LOOK AT THAT 17 PAGE, THERE ARE SOME NUMBERS OF PAGES AT THE VERY BOTTOM AND 18 YOU'LL SEE USS-01874. WHEN YOU GET THERE, LET ME KNOW. 19 A. 1874? 20 Q. YES, YOU'LL SEE THAT IT'S A MEMO DATED NOVEMBER 19TH, 21 1998. 22 A. OKAY. 23 Q. BEFORE I GO INTO THIS, IS IT -- WOULD IT BE FAIR TO SAY, 24 AS YOU SIT HERE TODAY, TO SAY THAT YOU RECALL THE ALLEGATIONS 25 AGAINST MS. NUNN BUT YOU DON'T RECALL WHAT THE FINDINGS OF THE HENSLEY - RECROSS/BEBI 92 1 INVESTIGATION WERE? 2 A. THAT'S CORRECT. 3 Q. AT SOME POINT YOU WERE ADVISED WHAT THE FINDINGS OF 4 INVESTIGATION WERE, CORRECT? 5 A. I BELIEVE SO. 6 Q. AS YOU SIT HERE TODAY, YOU DON'T RECALL WHAT THEY WERE? 7 A. NO, I DON'T. 8 Q. ALL RIGHT. SO LOOKING AT PAGE 01874 OF EXHIBIT 20, IF 9 CAN YOU DESCRIBE WHAT THIS DOCUMENT IS. 10 A. IT'S A MEMO WRITTEN TO EMPLOYEE RELATIONS, MARY 11 YONKERS -- IT WAS ACTUALLY WRITTEN BY MARK GWALTNEY -- AND 12 DISCUSSES SANDRA NUNN'S DISCIPLINARY REVIEW BOARD, AND IT'S 13 FROM OUR OFFICE, AND I SIGNED IT. 14 Q. IS THIS THE REFERRAL FOR AN INVESTIGATION OF MS. NUNN? 15 A. IT'S A REFERRAL TO THE DISCIPLINARY REVIEW BOARD, I 16 BELIEVE. 17 Q. WHAT IS THE DISCIPLINARY REVIEW BOARD? 18 A. THE DISCIPLINARY REVIEW BOARD IS A HEADQUARTERS' FUNCTION 19 TO LOOK AT DISCIPLINE FOR EMPLOYEES AND TO BALANCE IT AGAINST 20 DISCIPLINE ACROSS THE ENTIRE CUSTOMS SERVICE SO IT'S UNIFORM. 21 Q. LET ME BACK UP A SECOND. YOU TALKED EARLIER ABOUT 22 INTERNAL AFFAIRS INVESTIGATIONS AND THOSE ARE FOR CRIMINAL AND 23 SERIOUS GROSS NEGLECT OR SERIOUS BREACHES OF DUTY, CORRECT? 24 A. YES. 25 Q. AND THEN THERE'S WHAT'S KNOWN AS AN ADMINISTRATIVE HENSLEY - RECROSS/BEBI 93 1 INQUIRY; IS THAT CORRECT? 2 A. YES. 3 Q. AND THAT'S FOR MINOR OFFENSES? 4 A. IT'S EITHER MINOR OFFENSES OR THOSE THAT INTERNAL AFFAIRS 5 DEEMS THAT THEY WILL RETURN TO THE SAIC TO PROCEED WITH. 6 Q. WHEN IT COMES TO OFFENSES LIKE UNAUTHORIZED OUTSIDE 7 EMPLOYMENT, THAT WOULD BE MORE OF AN ADMINISTRATIVE REVIEW, A 8 MINOR OFFENSE, RIGHT? 9 A. YES. 10 Q. WAS THIS EVER SENT TO INTERNAL AFFAIRS, THIS 11 INVESTIGATION ON MS. NUNN? 12 A. I DON'T KNOW. 13 Q. I THINK YOU TESTIFIED EARLIER TO THAT, BUT IT WASN'T 14 PURSUED WITH INTERNAL AFFAIRS, CORRECT? 15 A. THAT'S CORRECT. 16 Q. WHEN YOU WERE SENDING IT TO MARY YONKERS, OF EMPLOYEE 17 RELATIONS, IS THAT TO KIND OF INSTITUTE THIS ADMINISTRATIVE 18 INQUIRY? 19 A. I BELIEVE THAT THE ADMINISTRATIVE INQUIRY HAD BEGUN. 20 THIS IS SOMEWHERE IN THAT PROCESS. 21 Q. OKAY. AND THIS MEMO SETS OUT THREE POTENTIAL VIOLATIONS, 22 CORRECT? 23 A. YES. 24 Q. COULD YOU READ THOSE TO US. I THINK IT'S THE BOTTOM OF 25 THE FIRST PAGE. HENSLEY - RECROSS/BEBI 94 1 A. NO. 1, MISREPRESENTATION OF MATERIAL FACT IN OBTAINING 2 SICK LEAVE ENTITLEMENTS. 3 Q. LET'S STOP THERE. DO YOU KNOW WHAT THE FACTS WERE THAT 4 SUBSTANTIATE THAT KIND OF AN ALLEGATION? 5 A. NO, I DON'T, NOT AS I SIT HERE RIGHT NOW. 6 Q. WHEN I HEAR THAT, IT SOUNDS LIKE SOMEBODY IS CLAIMING 7 THEY'RE SICK WHEN THEY'RE NOT SO THEY CAN GET SICK LEAVE. 8 A. I DON'T KNOW THE FACTS AROUND IT. 9 Q. OKAY. SO THIS WAS PREPARED BY MR. GWALTNEY FOR YOUR 10 SIGNATURE. 11 A. YES. 12 Q. BUT YOU DIDN'T -- WHY WAS IT FOR YOUR SIGNATURE RATHER 13 THAN MR. GWALTNEY'S? 14 A. THE PROCESS OF DOCUMENTS OUT OF THE OFFICE, THERE'S A 15 SIGNATURE PROTOCOL, AND THE SAIC OR THE DEPUTY SAICS HAVE 16 AUTHORITIES TO SIGN. THE ASAICS CAN ONLY SIGN IF THE DEPUTY 17 SAIC OR THE SAIC IS NOT AVAILABLE. 18 Q. AND SO JUST TO FINISH THIS POINT ON THE SICK LEAVE, IS IT 19 YOUR UNDERSTANDING THAT THIS ALLEGATION AROSE OUT OF THE 20 INCIDENT IN WHICH MR. FOWLER SUGGESTED THAT MS. NUNN TAKE SICK 21 LEAVE BECAUSE OF HER STRESS LEVEL AT THAT TIME? 22 A. I DON'T KNOW. 23 Q. WHAT'S THE SECOND POTENTIAL OFFENSE OR ALLEGED OFFENSE? 24 A. FAILURE TO FOLLOW PROCEDURES, REGULATIONS IN REQUESTING 25 OUTSIDE EMPLOYMENT. HENSLEY - RECROSS/BEBI 95 1 Q. AND THIRD? 2 A. UNAUTHORIZED OUTSIDE EMPLOYMENT. 3 Q. AND I THINK JUST CONTINUING TO THE NEXT SENTENCE IT 4 INDICATES THAT IT ADVISES THAT SHE HAD A PREVIOUS REPRIMAND 5 FOR FAILURE TO SAY GUARD HER PERSONAL WEAPON; IS THAT CORRECT? 6 A. THAT'S CORRECT. 7 Q. AND THEN IF YOU WOULD TURN, PLEASE, TO PAGE 01864, AND 8 THIS IS A MEMO DATED JANUARY 5TH, 1999, AND IT'S DIRECTED TO 9 THE SAIC, WHICH WOULD BE YOURSELF, CORRECT? 10 A. YES. 11 Q. AND WHO IS THIS FROM? 12 A. THIS IS FROM RICK OLIVERI, WHO WAS IN THE HEADQUARTERS' 13 STAFF FOR THE OFFICE OF ENFORCEMENT. 14 Q. DOES THIS APPEAR TO BE A RESPONSE TO THE PRIOR MEMO WE 15 JUST DISCUSSED? 16 A. I WOULD HAVE TO LOOK AT THE DATES, BUT IT SEEMS TO BE. 17 Q. AND IF YOU LOOK AT THAT FIRST PARAGRAPH, IT SAYS, "THIS 18 IS TO ADVISE YOU THAT THE MANAGEMENT INQUIRY ON SPECIAL AGENT 19 SANDRA NUNN WAS REVIEWED BY THE DISCIPLINE REVIEW BOARD ON 20 DECEMBER 10TH, '98, AND DETERMINED NOT TO WARRANT PROPOSED 21 ADVERSE ACTION." DO YOU SEE THAT? 22 A. YES. 23 Q. WAS THAT THE END OF THE MATTER? 24 A. WELL, WHAT IT SAYS HERE IS IT'S -- "BASED UPON THIS 25 DETERMINATION, THE REPORT IS HEREBY REMANDED TO YOU FOR HENSLEY - RECROSS/BEBI 96 1 APPROPRIATE ADMINISTRATIVE ACTION." 2 Q. WHAT DOES THAT MEAN? 3 A. UNDER TWO WEEKS, UNDER 14 DAYS -- 14 DAYS OR UNDER IS NOT 4 CONSIDERED MAXIMUM PUNISHMENT. 5 Q. WAS THERE A RECOMMENDATION TO THEM THAT SHE BE SUSPENDED 6 FOR 14 DAYS? 7 A. BEG YOUR PARDON? 8 Q. WAS THERE A RECOMMENDATION THAT HAD BEEN SUBMITTED TO THE 9 DISCIPLINE REVIEW BOARD THAT MS. NUNN BE SUSPENDED FOR 14 10 DAYS? 11 A. I THINK THE VIOLATIONS, BASED UPON THE DISCIPLINE 12 SCHEDULE OF THE UNITED STATES CUSTOMS SERVICE, THREE 13 VIOLATIONS AT ONE TIME COULD RESULT IN DISMISSAL. 14 Q. AND THEY'RE BASICALLY TELLING YOU THAT DIDN'T SEEM TO BE 15 WARRANTED IN THIS CASE? 16 A. THEY REVIEWED IT AND FELT IT DID NOT RISE TO THAT LEVEL 17 SO THEY REFERRED IT BACK TO THE SAIC OFFICE. 18 Q. SO WERE THERE ADDITIONAL INVESTIGATION THEN AS TO WHAT 19 ACTION, IF ANY, SHOULD BE TAKEN IN RESPONSE TO THIS -- THESE 20 ALLEGATIONS? 21 A. I'M NOT SURE WHAT OCCURRED AFTER THAT. 22 Q. WELL, EVENTUALLY -- WELL, LET'S TAKE A LOOK AT PAGE 23 NUMBER US-01858, AND I BELIEVE THAT'S A -- LOOKS LIKE AN 24 E-MAIL; IS THAT CORRECT, OR A COPY OF AN E-MAIL -- 25 A. YES. HENSLEY - RECROSS/BEBI 97 1 Q. -- BY MARK GWALTNEY? THAT MIDDLE SECTION BY MARK 2 GWALTNEY SEEMS TO BE KIND OF A REVIEW OF WHAT OCCURRED ON THIS 3 MATTER. 4 A. OKAY. 5 Q. OR HAS THE DATES AND WHAT OCCURRED ON THAT DATE; DO YOU 6 SEE THAT? 7 A. YES. 8 Q. DO YOU SEE THAT ON 1/26/99 THERE WAS A DRAFT LETTER 9 PROPOSING TO SUSPEND NUNN FOR 14 DAYS? 10 A. YES. 11 Q. THAT'S AFTER -- IF I HAVE MY DATES RIGHT, THAT'S AFTER IT 12 HAD BEEN RETURNED FROM THE DISCIPLINE REVIEW BOARD INDICATING 13 BASICALLY THE OPPOSITE ON JANUARY 5TH, RIGHT? 14 A. YES. 15 Q. AND THEN IT'S SENT TO CMC/LER, WHAT'S THAT? 16 A. THE LER IS THE LABOR EMPLOYMENT RELATIONS SECTION, AND 17 THE CMC IS THE CUSTOMS MANAGEMENT CENTER, WHICH IS THE 18 SERVICING OFFICE FOR BOTH THE ENFORCEMENT SIDE OF THE CUSTOMS 19 AND THE INSPECTION SIDE OF CUSTOMS. 20 Q. AND THE LERS, THEY'RE SORT OF THE SPECIALISTS OR THE 21 EXPERTS ON THAT'S MATTERS; IS THAT RIGHT? 22 A. THAT'S CORRECT. 23 Q. THEN IF YOU DROP DOWN TO 2/25/99, IS THAT A LOCATION, 24 SEAPORT? 25 A. THERE WAS ANOTHER OFFICE IN THE ONE AT SEAPORT, AT LONG HENSLEY - RECROSS/BEBI 98 1 BEACH. 2 Q. RECOMMENDS THAT BASED ON THE TOTALITY OF CIRCUMSTANCES 3 INVOLVED, INCLUDING RESULTS OF MS. NUNN'S INTERVIEW, THEY HAD 4 AN INTERVIEW BETWEEN THESE DATES, NUNN BE GIVEN AN OFFICIAL 5 REPRIMAND FOR FAILING TO REQUEST FOR OUTSIDE EMPLOYMENT. AND 6 BELOW THAT IT RECOMMENDS "NO DISCIPLINE ACTION BEING INITIATED 7 REGARDING SICK LEAVE -- RECOMMENDS NO DISCIPLINE ACTION BE 8 INITIATED REGARDING SICK LEAVE ISSUE DUE TO INABILITY TO 9 SUSTAIN DISCIPLINARY ACTION ON THAT ISSUE. SAIC MANAGEMENT 10 CONCURS." WHO IS SAIC MANAGEMENT IN THAT REGARD? 11 A. BEG PARDON? 12 Q. WHO WOULD SAIC MANAGEMENT BE? 13 A. I'M ASSUMING IT'S MR. WOODY OR MR. GWALTNEY HERE. 14 Q. SO IF MS. NUNN HAD BEEN REQUESTED OR SUGGESTED BY HER 15 SUPERVISOR, SECOND LINE SUPERVISOR, MR. FOWLER, TO TAKE SICK 16 LEAVE THEN THE MISREPRESENTATIONS TO OBTAIN SICK LEAVE 17 WOULDN'T SEEM TO FIT, WOULD IT? 18 A. I CAN ONLY GO BY WHAT'S WRITTEN HERE. 19 Q. I'M ASKING YOU IF THAT WAS THE CASE THAT WOULDN'T FIT, 20 CORRECT? 21 A. APPARENTLY THE EVIDENCE DIDN'T SUSTAIN THE ALLEGATION. 22 Q. AND THEN HERE THEY'RE SUGGESTING A REPRIMAND FOR 23 UNAUTHORIZED OUTSIDE EMPLOYMENT, CORRECT, THIS IS THE LAR? 24 A. IT DOESN'T -- IT JUST SAYS 2/26/99, CLA ARE TO PREPARE 25 WRITTEN REPRIMAND AND DON'T SAY WHAT IT'S FOR. HENSLEY - RECROSS/BEBI 99 1 Q. THEY JUST REQUESTED A REPRIMAND, NO SUSPENSION, NO 2 REFERENCE TO ANY SUSPENSION, CORRECT? 3 A. NOT IN THIS DOCUMENT, NO. 4 Q. THIS IS BACK IN FEBRUARY OF '99, RIGHT? 5 A. YES, 2/22/99 -- 2/26/99. 6 Q. AND THEN THE NEXT THING YOU KNOW YOU ARE -- A DO YOU MEAN 7 IS PREPARED DATED AND I'M LOOK AT EXHIBIT 28, WHICH IS ALREADY 8 IN EVIDENCE, I'LL PUT IT UP ON THE SCREEN IN A SECOND, DATED 9 JUNE 3RD, '99, DECISION ON PROPOSED THREE-DAY SUSPENSION, 10 WHICH IS PUT TOGETHER FOR YOUR SIGNATURE BUT IT'S SIGNED 11 APPARENTLY BY MS. BROWN. LET ME SHOW YOU THIS FIRST PAGE: 12 DEFENSE EXHIBIT 28, AND HERE'S THE DECISION ON PROPOSED 13 THREE-DAY SUSPENSION, DO YOU SEE THAT? 14 A. YES. 15 Q. THE SIGNATURE LINE ON PAGE 3 IS JOHN HENSLEY, BUT THAT'S 16 NOT YOUR SIGNATURE, RIGHT? 17 A. NO, IT'S NOT. 18 Q. DO YOU KNOW WHOSE SIGNATURE THAT IS? 19 A. THAT'S DEPUTY SAIC LORI BROWN. 20 Q. DO YOU HAVE ANY IDEA WHAT HAPPENED BETWEEN THE LER'S 21 RECOMMENDATION THAT THERE JUST BE A REPRIMAND AND THE FINAL 22 DECISION TO DO A THREE-DAY SUSPENSION? 23 A. I'M NOT SURE, I NOTICE THAT THE LETTER WAS WRITTEN BY 24 LAR, JUNE GARRINGER IS THE PREPARER OF THE LETTER. 25 Q. ISN'T THAT TYPICAL? HENSLEY - RECROSS/BEBI 100 1 A. YES. 2 Q. DON'T THEY CONFER WITH THE DISCIPLINING OF OFFICIAL, I'M 3 NOT SURE THAT'S THE RIGHT TERM? 4 A. YES. I DON'T KNOW WHAT OTHER FACTS CAME OUT BETWEEN 5 JANUARY AND JUNE. 6 Q. BASICALLY THEY PREPARE THE LETTER AS INDICATED, IF YOU 7 INDICATE YOU'RE THE DECIDING OFFICIAL AND YOU SAY I WANT IT A 8 3-DAY SUSPENSION SHE PUTS IT TOGETHER WITH A 3-DAY SUSPENSION? 9 A. IN CONCURRENCE WITH THAT OFFICE. 10 Q. AND IF SHE MAKES A RECOMMENDATION OF SOMETHING DIFFERENT 11 YOU'RE UNDER NO OBLIGATION TO FOLLOW THAT, CORRECT? 12 A. YES. 13 Q. IT'S JUST A RECOMMENDATION. 14 THE COURT: YOU HAVE TO ANSWER OUT LOUD. 15 THE WITNESS: SORRY I THOUGHT I SAID IT VERBALLY. 16 MR. STENNETT: I WOULD LIKE TO OFFER PORTIONS OF 17 EXHIBIT 20, WHICH WOULD BE THE PAGES REFERRED TO WOULD BE 18 01874, 01875, 01864, 01858. THOSE ARE ALL I'LL REFER TO AT 19 THIS POINT. 20 MR. STUTLER: WE WOULD OBJECT TO 01858, HE WAS NOT A 21 PARTY TO THAT E-MAIL SO THERE'S NO FOUNDATION TO IT. 22 THE COURT: TELL ME WHERE I FIND THAT IN MY LISTING OF 23 EXHIBITS. 24 MR. STUTLER: EXHIBIT 20, THEY'RE NUMBERED AT THE 25 BOTTOM AND IT'S A US-01858 BASE NUMBER. HENSLEY - RECROSS/BEBI 101 1 THE COURT: WHICH ONE DO YOU OBJECT TO. 2 MR. STENNETT: 01858. I WOULD OFFER IT AS A BUSINESS 3 EXCEPTION, YOUR HONOR. 4 MR. STUTLER: NO FOUNDATION HAS BEEN LAID FOR THAT, 5 YOUR HONOR. 6 THE COURT: OBJECTION'S SUSTAINED. 7 Q. MR. HENSLEY, LOOK AT 01858, AGAIN, I'M SORRY TO KEEP 8 BOUNCING YOU BACK AND FORTH HERE. 9 A. YES. 10 Q. CAN YOU TELL ME UNDER WHAT CIRCUMSTANCES THAT SORT OF A 11 MEMO OR E-MAIL WOULD BE PREPARED. WOULD THAT BE PART OF THE 12 NORMAL INVESTIGATION, ADMINISTRATIVE INVESTIGATION OR INQUIRY 13 OF MS. NUNN? 14 A. IT'S A BASICALLY A STATUS SUMMARY. I THINK JUST A BULLET 15 POINT SUMMARY. 16 Q. BASED ON THE -- MR. GWALTNEY, WHO WAS THE LEAD 17 INVESTIGATOR IN THIS? 18 A. YES, HE'S ASAC OVER THAT SECTION. 19 Q. AND THAT WOULD BE PART OF HIS NORMAL DUTIES AS THE ASAC 20 AND THE INVESTIGATOR ON AN INQUIRY LIKE THIS? 21 A. I WOULD SAY THAT MR. GWALTNEY WAS ALWAYS A VERY DETAILED 22 PERSON, SO HE WOULD HAVE HAD EVERYTHING DOTTED AND CROSSED. 23 Q. AND THIS WOULD HAVE BEEN KEPT IN THE NORMAL COURSE OF THE 24 RECORDS OF THIS EVENT? 25 A. YES. HENSLEY - RECROSS/BEBI 102 1 MR. STENNETT: YOUR HONOR, I WOULD RE-OFFER THIS 2 EXHIBIT. 3 MR. STUTLER: YOUR HONOR, HE HASN'T MET THE FOUNDATION 4 REQUIREMENTS UNDER THE BUSINESS RECORDS EXCEPTION. 5 THE COURT: TELL YOU WHAT, WE'LL ARGUE ABOUT THIS ONCE 6 THE JURY'S BEEN EXCUSED. 7 MR. STENNETT: OKAY. 8 Q. LET'S MOVE ON, SIR, I'M SORRY TO BE SO SLOW HERE THIS 9 AFTERNOON. 10 I JUST WANT TO HIT ONE LAST ISSUE AND THAT IS THE TECS 11 REPORTS THAT WERE PULLED UP BY MS. NUNN OF INVESTIGATIONS BY 12 MS. FITZGERALD. DO YOU RECALL SOME DISCUSSION ABOUT THAT 13 EARLIER? 14 A. YES. 15 Q. FIRST OFF, IT WOULD BE IMPROPER -- AS I UNDERSTAND IT, 16 IT'S IMPROPER FOR AN AGENT TO USE TECS DOCUMENTS, IN THIS CASE 17 ROIS, REPORTS OF INVESTIGATION, FOR PERSONAL USE; IS THAT 18 CORRECT? 19 A. THAT'S CORRECT. 20 Q. IT WOULD ALSO BE ILLEGAL FOR THEM TO TAKE THEM WITH THEM 21 AFTER THEY RETIRE OR RESIGN FOR THEIR OWN PERSONAL USE, 22 CORRECT? 23 A. THEY REMAIN THE PROPERTY OF THE GOVERNMENT. 24 Q. AND THEY REMAIN AT GOVERNMENT PREMISES, CORRECT? 25 A. I BELIEVE SO, YES. HENSLEY - RECROSS/BEBI 103 1 Q. THAT WOULD ALSO BE TRUE WITH THE STATISTICAL INFORMATION 2 THAT WAS TALKED ABOUT EARLIER, CORRECT, ABOUT WARRANTS AND 3 SEIZURES AND ARRESTS, CONVICTIONS, ETC., THERE'S CLASSIFIED 4 INFORMATION ON THOSE? 5 A. THERE'S NOT CLASSIFIED INFORMATION ON IT. 6 Q. WOULD IT BE ILLEGAL FOR AN AGENT TO TAKE IT FOR THEIR OWN 7 PERSONAL USE? 8 A. I DON'T KNOW THAT THAT WOULD BE TECHNICALLY ILLEGAL. I'M 9 NOT SURE WHAT THE ACTION WOULD BE THAT -- NORMALLY PEOPLE 10 DON'T TAKE THEM WITH THEM. 11 Q. IT PROBABLY WOULDN'T BE A GOOD IDEA TO TAKE IT UNLESS YOU 12 GOT ADVICE OF SOMEONE HIGHER UP, COUNSEL OR OTHERWISE? 13 A. YOU SHOULD, YES. 14 MR. STENNETT: IF I COULD BOTHER THE CLERK ONE MORE 15 TIME TO PULL EXHIBIT 6. IS NO. 6 IN EVIDENCE? 16 THE COURT: I BELIEVE IT IS. 17 Q. I'M GOING TO HAND YOU EXHIBIT NO. 6, I'M GOING TO PUT IT 18 ALSO UP ON THE BOARD SO WE CAN ALL TELL WHICH OF THE SEVERAL 19 DOCUMENTS WE'RE LOOKING AT. 20 FIRST ONE IS 01333, WHICH IS A NUMBER AT THE BOTTOM 21 RIGHT-HAND CORNER, AND IT IS A MEMO DATED JUNE 15TH, '99. IT 22 LOOKS LIKE IT'S ADDRESSED TO YOURSELF; IS THAT CORRECT? 23 A. YES. 24 Q. IT'S FROM -- WHO IS THAT FROM? 25 A. IT WAS DRAFTED BY GMP. TO BE TRUTHFUL, I DON'T KNOW WHO HENSLEY - RECROSS/BEBI 104 1 G MP IS. 2 Q. BUT IT WAS THE RESIDENT AGENT IN CHARGE RIVERSIDE, RIGHT? 3 A. YES. 4 Q. AND IT'S DIRECTLY TO YOU? 5 A. YES, TO OUR OFFICE. 6 Q. AND IT'S REALLY NOT FOLLOWING THE CHAIN OF COMMAND, 7 CORRECT? 8 A. WELL, THIS SHOULD HAVE OR WOULD HAVE BEEN ROUTED TO THE 9 ASAC OR THE DEPUTY SAIC OVER IN THAT AREA. 10 Q. YOU'RE UP HERE AT THE TOP (INDICATING)? 11 A. YES. 12 Q. IT COMES FROM SOMEONE DOWN HERE (INDICATING), RIGHT? 13 A. YES. 14 Q. AND YOU'RE SAYING IT'S ADDRESSED TO YOU, BUT YOU'RE 15 SAYING IT WOULD HAVE COME THROUGH ONE OF THE ASSOCIATE SAICS, 16 RIGHT? 17 A. YES. 18 Q. WAS THIS YOUR FIRST NOTICE OF THIS TECS INVESTIGATION? 19 A. I BELIEVE SO, BUT I CAN'T REMEMBER, IT'S JUST TOO LONG 20 AGO. 21 Q. YOU SEE THE LAST, OH, I GUESS THE LAST SENTENCE OF THAT 22 FIRST PARAGRAPH IT SAYS, "G.S. POWELL REQUESTED THAT A HARD 23 COPY OF A TECS QUERY BE GENERATED AND FORWARDED TO HIM AND 24 THAT HE WOULD FOLLOW UP WITH S.A. NUNN AS TO REASONS FOR THE 25 TEXT QUERY"; DO YOU SEE THAT? HENSLEY - RECROSS/BEBI 105 1 A. YES. 2 Q. IS THAT A REASONABLE APPROACH TO THIS ISSUE? 3 A. YES. 4 Q. GO AND TALK TO THE INDIVIDUAL AND SAY, "WELL, DO YOU HAVE 5 A REASONABLE REASON TO PULL UP THESE TECS," RIGHT? 6 A. RIGHT. 7 Q. DO YOU KNOW IF THAT WAS EVER DONE? 8 A. I DON'T KNOW. 9 Q. LET ME SHOW YOU ANOTHER DOCUMENT FROM EXHIBIT 6, THIS IS 10 ANOTHER MEMO DATED JUNE 15TH, ALSO SPECIAL AGENT IN CHARGE, 11 THIS TIME IT SAYS THOUGH "ASSOCIATE SPECIAL AGENT IN CHARGE," 12 WHICH WOULD BE YOUR DEPUTY SAIC, CORRECT? 13 A. YES. 14 Q. AGAIN, ENTITLED "POSSIBLE MISUSE OF TECS INFORMATION." 15 LOOKING AT THE BOTTOM OF THE PARAGRAPH, IT INDICATES, AT THE 16 VERY LAST SENTENCE, I THINK, "IN ADDITION, AGENTS NUNN AND 17 CATALAN ARE INVOLVED IN A LEGAL ACTION TOGETHER AND IT'S MY 18 CONCERN THAT AGENT NUNN MAY BE MISUSING CASE INFORMATION FOR 19 THAT PURPOSE." DID YOU KNOW OF ANY KIND OF LEGAL ACTION THAT 20 THEY WERE INVOLVED IN TOGETHER AT THAT TIME? 21 A. I BELIEVE BY THAT TIME THE ONLY THING I KNEW ABOUT WERE 22 THEIR EEO COMPLAINTS. I DON'T KNOW ABOUT LEGAL ACTION PER SE. 23 Q. WOULD IT HAVE BEEN IMPROPER FOR AN AGENT TO USE TECS 24 INFORMATION TO PRESENT AT AN EEO MATTER, ASSUMING THAT WAS 25 WHAT THIS IS REFERRING TO, LEGAL ACTION? HENSLEY - RECROSS/BEBI 106 1 A. IT WOULD BE A VIOLATION OF OUR RULES TO USE TECS 2 INFORMATION FOR OTHER THAN THE INTENDED PURPOSES. 3 Q. AND THAT WOULD INCLUDE MANAGEMENT PERSONNEL ALSO? COULD 4 THEY USE TECS INFORMATION TO DEFEND EEO COMPLAINTS? 5 A. I DON'T KNOW THE ANSWER TO THAT. 6 Q. AND THEN THIS INFORMATION, I ASSUME, EVENTUALLY CAME TO 7 YOUR ATTENTION, CORRECT? 8 A. I THINK EVENTUALLY IT DID. 9 Q. AND THEN IF I COULD SHOW YOU THE MEMO FROM EXHIBIT 6, 10 DATED JUNE 17TH, I BELIEVE THIS IS FROM YOU, IT'S SIGNED BY 11 YOU AT LEAST, CORRECT? 12 A. NO, IT'S SIGNED BY STEVE WOODY. 13 Q. OVER YOUR NAME, CORRECT? 14 A. YES. 15 Q. AND HERE YOU'RE REFERRING TO THIS INTERNAL AFFAIRS 16 INVESTIGATION, RIGHT? 17 A. YES. 18 Q. AND THE LAST SENTENCE OF THAT FIRST PARAGRAPH, "I SHARED 19 G.S. POWELL'S CONCERN THAT TECS CASE INFORMATION MAY HAVE BEEN 20 PRODUCED TO UNAUTHORIZED PERSONS BY S.A. NUNN," IS THAT THE 21 SAME CONCERN ABOUT UNAUTHORIZED -- WELL, LET ME STRIKE THAT, 22 I'M RAMBLING HERE. 23 WHAT UNAUTHORIZED PERSONS ARE YOU ASSUMING MS. NUNN IS 24 PROVIDING THIS DOCUMENT TO? 25 MR. STUTLER: CALLS FOR SPECULATION. MR. WOODY SIGNED HENSLEY - RECROSS/BEBI 107 1 THIS DOCUMENT. 2 THE COURT: SUSTAINED. 3 Q. DID YOU SEE THIS DOCUMENT BEFORE IT WENT OUT? 4 A. I DON'T BELIEVE SO. 5 Q. DID YOU DIRECT MR. WOODY TO SEND THIS OUT OVER YOUR NAME? 6 A. NO, I DIDN'T. 7 Q. HE TOOK IT UPON HIMSELF TO SEND THIS OUT OVER YOUR NAME? 8 A. HE HAS THAT AUTHORITY. DEPUTY SAICS ARE ALLOWED TO SIGN 9 DOCUMENTS AT THE SAIC LEVEL. 10 Q. DO YOU KNOW AT THIS TIME WHETHER MR. POWELL HAD TALKED TO 11 MS. NUNN ABOUT WHY SHE WAS PULLING UP THE TECS INFORMATION? 12 A. NO. 13 Q. THAT WOULD HAVE BEEN A REASONABLE THING TO WAIT FOR 14 BEFORE SENDING IT TO INTERNAL AFFAIRS, WOULDN'T IT? 15 A. I DON'T KNOW WHAT OCCURRED BETWEEN THE FIRST LETTER AND 16 THIS REFERRAL. 17 Q. OKAY. AGAIN, THAT WOULD HAVE BEEN A REASONABLE EFFORT TO 18 TRY AND MAKE THAT DETERMINATION BEFORE SETTING OFF THE FULL 19 INVESTIGATIVE POWERS OF INTERNAL AFFAIRS ON THIS, CORRECT? 20 A. UNLESS THEY FELT THERE WAS SOME CRIMINALITY ATTACHED TO 21 IT THAT WOULD PRECLUDE THAT. 22 Q. WELL, THAT'S NOT UNUSUAL FOR ONE AGENT TO PULL UP THE 23 REPORTS OF ANOTHER AGENT, IS IT? 24 A. I WOULDN'T SAY IT'S USUAL. IT'S NOT SOMETHING THAT'S 25 NEVER DONE, BUT IT'S USUALLY IN RELATIONSHIP TO CASES WHICH HENSLEY - RECROSS/BEBI 108 1 ARE SIMILAR OR RELATED. 2 Q. HAVE YOU EVER HEARD OF AGENTS PULLING UP OTHER AGENTS' 3 REPORTS JUST AS A FORMAT TO SEE HOW TO PUT A REPORT TOGETHER, 4 AS WELL AS THE REPORTING AGENT IN QUESTION? 5 A. ON REPORTS, THE ONLY TIME I'VE SEEN THAT DONE IS WITH THE 6 AGENT'S PERMISSION. 7 MR. STENNETT: THANK YOU, SIR, I DON'T HAVE ANY 8 FURTHER QUESTIONS. 9 THE COURT: OKAY. 10 THE COURT: MR. STUTLER. 11 MR. STUTLER: THANK YOU, YOUR HONOR. 12 REDIRECT EXAMINATION 13 BY MR. STUTLER: 14 Q. MR. HENSLEY, YOU WERE ASKED A LITTLE EARLIER ABOUT 15 EXHIBIT 4U, WHICH WAS AN AWARD THAT MR. FOWLER WANTED TO GIVE 16 MS. NUNN; DO YOU RECALL THAT? 17 A. YES. 18 Q. AND YOU SIGNED THAT AWARD REQUEST; IS THAT RIGHT? 19 A. YES, I DID. 20 Q. AND IN GIVING HER MONEY, I ASSUME THAT WAS NOT AN ATTEMPT 21 TO RETALIATE AGAINST HER IN SOME WAY? 22 A. NO, IT WAS NOT. 23 Q. THIS WOULD HAVE BEEN FOUR MONTHS AFTER HER INITIAL EEO 24 ACTIVITY; IS THAT CORRECT? 25 A. THAT'S CORRECT. HENSLEY - RECROSS/BEBI 109 1 Q. DID YOU VIEW THAT AS A BAD THING IN ANY WAY? 2 A. NO. 3 Q. WITH RESPECT TO THE QUESTIONS MR. BEBI WAS ASKING YOU, HE 4 HAD ASKED ABOUT YOUR BACHELOR'S DEGREE, DID HE READ THE 5 CORRECTION THAT YOU HAD MADE TO YOUR DEPOSITION TRANSCRIPT? 6 A. NO, HE DID NOT. 7 Q. I WOULD LIKE YOU TO READ, IF YOU WOULD, PLEASE, ALOUD TO 8 THE JURY PAGE 8, LINE 1, SKIPPING THE FIRST TWO WORDS, THROUGH 9 THE CHANGES THAT YOU MADE ON THAT PAGE. 10 A. LINE 3, "DID NOT ACTUALLY RECEIVE DEGREE, A FEW UNITS OF 11 REQUIRED SHORT WHEN TRANSFERRED. SINCE THAT TIME I HAVE 12 ATTENDED SEVERAL COLLEGES AND TAKEN NUMEROUS OTHER HOURS, BUT 13 I NEVER BOTHERED TO RESOLVE THE ORIGINAL DEGREE IN COLORADO." 14 AND THEN ON LINE 12, WHERE IT SAYS, "CRIMINAL 15 JUSTICE," I PUT IN ABOVE THAT, "MAJORED IN CRIMINAL JUSTICE." 16 Q. WHAT WAS YOUR REASON FOR MAKING THOSE CHANGES? 17 A. UPON READING THE ACTUAL TRANSCRIPT, I REALIZED I HAD KIND 18 OF SHORTCUT ANSWERS WHEN I WAS IN THE PRELIMINARY STAGES OF 19 THIS DEPOSITION SO I WANTED TO CORRECT THE RECORD. 20 Q. WHO WAS IT THAT DISCOVERED THAT MISTAKE ON YOUR PART? 21 A. I DID. 22 Q. HAD MR. BEBI CHALLENGED YOU ON THE ACCURACY OF THAT 23 BEFORE YOU MADE THAT CORRECTION? 24 A. NO, HE DID NOT. 25 Q. DID YOU MAKE THAT CORRECTION OF YOUR OWN VOLITION? HENSLEY - RECROSS/BEBI 110 1 A. YES. I CALLED YOUR OFFICE AND TOLD YOU I WANTED TO MAKE 2 THE CORRECTIONS. 3 Q. YOU WERE ALSO ASKED SOME QUESTIONS ABOUT SENATOR 4 FEINSTEIN IN A LETTER THAT SUPPOSEDLY MS. FITZGERALD WROTE TO 5 HER. IS IT TRUE THAT THE SENATOR DIDN'T CALL YOU TO ASK WHY 6 MS. FITZGERALD SHOULDN'T BE PROMOTED AHEAD OF PERRY JOHNSON 7 AND JAY PETTIBONE? 8 A. THAT'S CORRECT. 9 Q. IS IT TRUE SHE DIDN'T CALL YOU TO ASK WHETHER MR. 10 PINKAVA'S MANAGEMENT DECISIONS WERE SOUND? 11 A. THAT'S ALSO CORRECT. 12 Q. IS IT TRUE THAT THE SENATOR DID NOT REQUEST A RECESS IN 13 THE PROCEEDINGS OF THE UNITED STATES SENATE TO ASK WHETHER SHE 14 SHOULD GET A LOANER CAR? 15 A. THAT'S CORRECT. 16 MR. STUTLER: THANK YOU. 17 THE COURT: MR. BEBI. 18 RECROSS-EXAMINATION 19 BY MR. BEBI: 20 Q. MR. HENSLEY, I'M JUST GOING TO BE VERY BRIEF ON THIS. 21 THE ISSUE OF YOUR DEPOSITION, DID YOU AND I HAVE ANY CONTACT 22 AFTER YOUR DEPOSITION TO DISCUSS WHAT WAS INACCURATE ABOUT 23 YOUR TESTIMONY? 24 A. NO, WE DIDN'T. 25 Q. YOU JUST DIDN'T MENTION THAT YOU HAD A B.S. DEGREE ONCE; HENSLEY - RECROSS/BEBI 111 1 ISN'T THAT CORRECT? 2 A. I'D HAVE TO LOOK AT IT. I'M NOT SURE. 3 Q. WELL, LET'S LOOK AT IT, LET'S LOOK AT PAGE 8, BEGINNING 4 ON LINE 1 THROUGH 3, "WHAT IS THE HIGHEST GRADE OF SCHOOL THAT 5 YOU COMPLETED?" ANSWER: "COLLEGE, BACHELOR'S." DID I PROMPT 6 YOU IN ANY WAY TO STATE THAT YOU HAD A BACHELOR'S DEGREE WHEN 7 YOU DID NOT? 8 A. NO. 9 Q. AND THEN I ASKED, "IS THAT A B.A., ASSOCIATE OF ARTS 10 BACHELOR'S DEGREE, OR A B.S.?" AM I READING THAT CORRECTLY? 11 A. YES. 12 Q. AND YOU ANSWERED, "B.S.," CORRECT? 13 A. YES. 14 Q. DID I PROMPT YOU IN ANY WAY OR COERCE YOU TO SAY YOU HAD 15 A B.S. WHEN YOU DID NOT? 16 A. NO. 17 Q. AND THEN I SAID, "WHICH COLLEGE?" MEANING FROM WHICH 18 COLLEGE DID YOU RECEIVE YOUR B.S., CORRECT? AND YOU SAID, 19 "THE UNIVERSITY OF COLORADO," CORRECT? 20 A. YES. 21 Q. AND THEN I ASKED YOU, "WHAT YEAR?" AND YOU SAID, "1970." 22 AND THEN I ASKED, "WHAT DID YOU RECEIVE YOUR B.S. DEGREE IN, 23 WHAT SUBJECT?" AND YOU UNDERSTOOD ME TO BE CLEAR IN ASKING 24 ABOUT YOUR BACHELOR OF SCIENCE DEGREE, CORRECT? 25 A. YES. HENSLEY - RECROSS/BEBI 112 1 Q. AND YOU KNEW AT THAT TIME YOU DID NOT HAVE A BACHELOR OF 2 SCIENCE DEGREE, CORRECT? 3 A. YES. 4 Q. BUT YET YOU ANSWERED, "CRIMINAL JUSTICE," CORRECT? 5 A. YES. 6 Q. WITHOUT MY COERCING YOU TO DO THAT, CORRECT? 7 A. YES. 8 MR. BEBI: THAT'S ALL I HAVE, YOUR HONOR. 9 MR. STENNETT: NOTHING FURTHER, YOUR HONOR. 10 MR. STUTLER: MAY THIS WITNESS BE EXCUSED, YOUR HONOR? 11 MR. STENNETT: YES. 12 THE COURT: THANK YOU, MR. HENSLEY, YOU'RE EXCUSED. 13 (THE TRIAL CONTINUED.) 14 15 16 17 C E R T I F I C A T E 18 I, GAYLE WAKEFIELD, CERTIFY THAT I AM A DULY QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED 19 STATES DISTRICT COURT, THAT THE FOREGOING IS A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS AS TAKEN BY ME IN THE 20 ABOVE-ENTITLED MATTER ON MARCH 9, 2005; AND THAT THE FORMAT USED COMPLIES WITH THE RULES AND REQUIREMENTS OF THE UNITED 21 STATES JUDICIAL CONFERENCE. 22 23 DATED:_______________ __________________________ GAYLE WAKEFIELD, RPR, CRR 24 OFFICIAL COURT REPORTER 25