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 10, 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 (JS) (TS) WITNESSES DIRECT CROSS CROSS REDIRECT 4 5 ROBERT MATIVI 4 32 74 108 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MATIVI - DIRECT 4 1 MARCH 10, 2005 2 MORNING SESSION 3 THE CLERK: JURY ENTERING. 4 (THE FOLLOWING OCCURRED IN THE PRESENCE OF THE JURY.) 5 THE CLERK: REMAIN SEATED AND COME TO ORDER. THIS 6 COURT IS ONCE AGAIN IN SESSION. 7 THE COURT: GOOD MORNING. LET'S SEE -- 8 MR. STUTLER: YOUR HONOR, I'VE SPOKEN TO MR. BEBI, HE 9 HAS A WITNESS THAT WE HAVE SPOKEN ABOUT TAKING OUT OF TURN AND 10 WE WOULD LIKE TO LET HIM DO SO. 11 MR. BEBI: THE PLAINTIFF, MS. FITZGERALD, CALLS ROBERT 12 MATTIVI. 13 (WITNESS SWORN ON OATH.) 14 THE CLERK: STATE YOUR FULL NAME FOR THE RECORD, 15 SPELLING YOUR FIRST AND LAST. 16 THE WITNESS: ROBERT M. MATIVI, R-O-B-E-R-T 17 M-A-T-I-V-I. 18 DIRECT EXAMINATION 19 BY MR. BEBI: 20 Q. GOOD MORNING, MR. MATIVI. 21 A. GOOD MORNING. 22 Q. PLEASE TELL US WHAT YOUR AGE IS. 23 A. PARDON ME? 24 Q. YOUR AGE. 25 A. I'M 56, BE 57 IN APRIL. MATIVI - DIRECT 5 1 Q. WHAT IS YOUR OCCUPATION, SIR? 2 A. RIGHT NOW I'M PRIVATELY EMPLOYED BY A COMPANY THAT'S 3 OWNED BY THE AIRLINES, AND I WORK FULL-TIME IN THE AIRLINE AND 4 TRAVEL INDUSTRY, FRAUD. 5 Q. HOW LONG HAVE YOU HELD THAT POSITION? 6 A. A LITTLE OVER SIX YEARS. 7 Q. BEFORE THE JOB YOU JUST DESCRIBED FOR US, WHERE DID YOU 8 WORK? 9 A. MY LAST JOB I HAD I RETIRED FROM THE UNITED STATES 10 CUSTOMS SERVICE, RESIDENT AGENCY IN RIVERSIDE, CALIFORNIA. 11 Q. ALSO KNOWN AS THE RAIC RIVERSIDE? 12 A. YES, SIR. 13 Q. HOW MANY YEARS DID YOU WORK AT THE RAIC RIVERSIDE OFFICE? 14 A. I WORKED THERE APPROXIMATELY NINE YEARS. 15 Q. CAN YOU TELL US WHAT TIME FRAME THAT WAS. 16 A. THAT WAS FROM EARLY 1990 TO -- I RETIRED IN JANUARY OF 17 1999. 18 Q. FROM AN EDUCATIONAL STANDPOINT, DO YOU HAVE A B.S. 19 DEGREE? 20 A. YES, SIR. 21 Q. FROM WHICH COLLEGE IS THAT? 22 A. CAL STATE LONG BEACH. 23 Q. WHAT YEAR DID YOU RECEIVE YOUR B.S. DEGREE? 24 A. 1970. 25 Q. WHILE YOU WERE IN COLLEGE, DID YOU ALSO WORK FOR THE LOS MATIVI - DIRECT 6 1 ANGELES POLICE DEPARTMENT? 2 A. YES, I WAS A CADET FOR THEM FOR A FEW YEARS WHILE I WAS 3 WORKING -- IN SCHOOL. 4 Q. CAN YOU PLEASE TELL US YOUR LAW ENFORCEMENT EXPERIENCE. 5 A. OKAY. WHEN I STARTED I WAS AN AGENT WITH ATF, ALCOHOL 6 TOBACCO AND FIREARMS, WHEN I WAS 22 YEARS OLD, IN 1971. I WAS 7 A MEMBER OF THE ATF EXPLOSION INVESTIGATION UNIT, BOMB SCENE 8 INVESTIGATIONS, WHEN I WAS 24, AND I WORKED WITH THEM, WITH 9 ATF, UNTIL EARLY 1982. DURING THE PERIOD OF TIME WITH ATF, I 10 WAS A LONG-TERM UNDERCOVER AGENT WITH WHITE POWER PRISON GANGS 11 AND MOTORCYCLE GANGS, AND THAT SORT OF THING. MY APPEARANCE 12 OBVIOUSLY WAS A LOT DIFFERENT THEN THAN IT IS TODAY. IN 1981, 13 THERE WAS A PROPOSAL BEFORE CONGRESS TO ABOLISH ATF, AND THE 14 UNITED STATES CUSTOMS SELECTED 50 ATF AGENTS FROM AROUND THE 15 COUNTRY TO TRANSFER OVER TO CUSTOMS, AND I WAS ONE OF THE 50 16 THAT WAS SELECTED, AND SO IN EARLY 1982 I TRANSFERRED TO THE 17 UNITED STATES CUSTOMS AND WAS POSTED AT LONG BEACH, 18 CALIFORNIA. 19 Q. AND YOU ENDED UP WORKING AT CUSTOMS FOR ABOUT 17 YEARS? 20 A. I WORKED IN CUSTOMS FOR 17 YEARS, YES. 21 Q. WHAT WAS YOUR TITLE OR TITLES DURING THE TIME PERIOD THAT 22 YOU WERE IN CUSTOMS? 23 A. MY PERMANENT TITLE FOR AWHILE WAS SPECIAL AGENT. I WAS A 24 GRADE-12 SPECIAL AGENT UNTIL 1993, AND THEN I WAS A SENIOR 25 SPECIAL AGENT IN '93 AND I GOT A GRADE -13. DURING THAT TIME MATIVI - DIRECT 7 1 I WOULD -- BEFORE THAT I WAS ACTING RAIC, ACTING GROUP 2 SUPERVISOR, LIKE MOST PEOPLE THAT HAD BEEN AROUND AWHILE. 3 Q. DO YOU KNOW THE PLAINTIFF IN THIS MATTER, DARLENE 4 FITZGERALD? 5 A. YES, SIR. 6 Q. HOW DO YOU KNOW HER? 7 A. I KNEW HER WHEN -- I BELIEVE I MET HER FIRST TIME WHEN I 8 TRANSFERRED TO RIVERSIDE IN 1990. 9 Q. DID YOU EVER ACT AS HER SUPERVISOR? 10 A. PARDON ME? 11 Q. DID YOU EVER ACT AS HER ACTING SUPERVISOR? 12 A. YES. 13 Q. ON ONE OCCASION, SEVERAL OCCASIONS? 14 A. IT WAS A NUMBER OF OCCASIONS. THERE WOULD BE TIMES WHEN 15 BOTH SUPERVISORS AND THE RESIDENT AGENT WOULD BE OUT OF THE 16 OFFICE SO I WOULD BE IN CHARGE OF THE WHOLE OFFICE, SO I WOULD 17 BE TECHNICALLY ACTING RAIC. OTHER TIMES I WOULD BE ACTING 18 GROUP SUPERVISOR, DEPENDING ON IF OUR SUPERVISOR WAS GONE. 19 YES, I DID, I WAS OFF AND ON FOR A NUMBER OF YEARS. 20 Q. DID YOU ALSO HAVE THE OPPORTUNITY TO WORK ON CASES WITH 21 HER? 22 A. YES, SIR. 23 Q. ON HOW MANY OCCASIONS WOULD YOU ESTIMATE? 24 A. WELL, SMALL CASES, DOZENS. BIG CASES, I WAS CASE AGENT 25 ON TWO MAJOR WIRETAP INVESTIGATIONS, AND SEVERAL OTHER BIG MATIVI - DIRECT 8 1 CASES, AND I WORKED WITH HER THEN. SHE WORKED FOR ME, 2 BASICALLY, AS CASE AGENT. BUT THEN BECAUSE THE RIVERSIDE 3 OFFICE WAS NOT VERY BIG AT THE TIME, WE ALL WORKED TOGETHER ON 4 ANY KIND OF CASE OF A MAJOR NATURE, EVERYONE WORKED TOGETHER. 5 Q. IS IT FAIR TO SAY THAT THROUGHOUT YOUR CAREER AT RAIC 6 RIVERSIDE, FROM 1991 UNTIL 1999, WHEN YOU RETIRED, YOU HAD AN 7 OPPORTUNITY TO OBSERVE HER WORK ON ALMOST A DAILY BASIS? 8 A. NOT ON A DAILY BASIS, BUT QUITE A BIT, YES. 9 Q. DID YOU FIND HER DIFFICULT TO WORK WITH? 10 A. NO, SIR. 11 Q. DID YOU FIND HER TO BE A LIAR? 12 A. NO. 13 Q. DID YOU FIND HER TO TAKE CREDIT FOR OTHER PEOPLE'S 14 PROJECTS? 15 A. NO, NOT THAT I RECALL. 16 Q. HOW ABOUT HER WILLINGNESS TO VOLUNTEER TO HELP OTHERS 17 OUT? 18 A. SHE DID THAT A LOT. I THOUGHT THAT WAS ONE OF HER FINEST 19 ASSETS, PERSONALLY. 20 Q. HOW WOULD YOU DESCRIBE MS. FITZGERALD AS AN AGENT? 21 A. THAT SHE WAS A GOOD AGENT. SHE HAD -- ONE OF THE REASONS 22 I WAS SENT OUT TO RIVERSIDE IN 1990, THE ASAIC, ARNIE GERADO, 23 WANTED ME OUT THERE BECAUSE HE SAID I COULD HELP TRAIN PEOPLE 24 AND TEACH PEOPLE THINGS BECAUSE I HAD BEEN AROUND A LONG TIME. 25 SHE WAS EAGER TO LEARN. SHE HAD A GOOD BACKGROUND. SHE WAS MATIVI - DIRECT 9 1 ENTHUSIASTIC. SHE WANTED TO HELP EVERYBODY. SHE WAS 2 AGGRESSIVE, WANTED TO DO THINGS, AND TRIED TO MAKE BIG CASES 3 WORK, MAJOR THINGS. SHE WAS A GOOD AGENT. 4 Q. DID YOU KNOW AN AGENT NAMED CARI ARN? 5 A. YES, SIR. 6 Q. DID MS. ARN EVER COMPLAIN TO YOU ABOUT MS. FITZGERALD 7 BEING UNTRUTHFUL? 8 A. NO. 9 Q. DID SHE EVER COMPLAIN TO YOU ABOUT MS. FITZGERALD TAKING 10 CREDIT FOR HER CASES? 11 A. NO. 12 Q. DID SHE EVER COMPLAIN TO YOU ABOUT MS. FITZGERALD IN ANY 13 WAY, SHAPE OR FORM THAT YOU CAN RECALL? 14 A. NOT THAT I CAN RECALL, NO, SIR. 15 Q. DID MS. FITZGERALD EVER TELL YOU THAT SHE WANTED TO DO 16 ANYTHING OTHER THAN WORK FOR CUSTOMS? 17 A. NO. 18 Q. DO YOU KNOW AN INDIVIDUAL NAMED MIKE PERBETSKY? 19 A. YES, SIR. 20 Q. HOW DO YOU KNOW MR. PERBETSKY? 21 A. WELL, MIKE AND I -- MIKE IS ONE OF THE OTHER 50 AGENTS 22 THAT TRANSFERRED FROM ATF IN 1982. I'VE KNOWN MIKE SINCE '82, 23 WHEN HE CAME TO TI, OR TERMINAL ISLAND, AND THEN I KNEW HIM -- 24 HE WAS MY SUPERVISOR WHEN I TRANSFERRED TO RIVERSIDE IN '90. 25 Q. DID YOU HAVE AN OPPORTUNITY TO OBSERVE MR. PERBETSKY'S MATIVI - DIRECT 10 1 SUPERVISORY MANAGEMENT STYLE? 2 A. SURE. 3 Q. WHAT DID YOU OBSERVE IN THAT REGARD? CAN YOU DESCRIBE IT 4 FOR US. 5 A. WELL, I LIKED MIKE A LOT. HE WAS A GOOD AGGRESSIVE 6 SUPERVISOR. HE WAS -- PARTLY BECAUSE MAYBE HIS BACKGROUND WAS 7 A MARINE OFFICER, HE WAS STRICT, AND HE WAS A ONE-WAY KIND OF 8 A STREET WITH HIM A LOT OF TIMES, THAT WAS MORE OR LESS HIS 9 STYLE. WITH ME HE WAS DIFFERENT BECAUSE I'D BEEN AROUND SO 10 LONG AND HE AND I WERE, LIKE, PEERS TOGETHER. WE BOTH HAD TWO 11 SONS. WE WERE BOTH THE SAME AGE. WE HAD A LOT IN COMMON. SO 12 HIS MANAGEMENT STYLE WITH ME, OBVIOUSLY, WAS SOMEWHAT 13 DIFFERENT THAN OTHER PEOPLE. 14 Q. DID YOU OBSERVE HIM HAVING DIFFICULTIES IN SUPERVISING 15 SOME OF THE FEMALE AGENTS IN THE OFFICE? 16 A. YES. 17 Q. WHAT DID YOU OBSERVE IN THAT REGARD? 18 A. WELL, AT THE TIME I RECALL WE HAD FOUR FEMALE AGENTS AT 19 THE OFFICE, AND THE ONES THAT WERE MORE AGGRESSIVE AND 20 OUTSPOKEN HE TENDED TO HAVE MORE CLASHES WITH. THE ONES THAT 21 WERE LESS OUTSPOKEN OR MORE MILD-MANNERED, YOU COULD SAY, HE 22 SEEMED TO HAVE LESS PROBLEMS WITH. 23 Q. LET'S TALK ABOUT THE FOUR FEMALE AGENTS DURING THIS TIME 24 PERIOD, THEY WERE LILLIAN MOLOIAN, CORRECT? 25 A. YES, SIR. MATIVI - DIRECT 11 1 Q. TO YOUR KNOWLEDGE, WAS LILLIAN MOLOIAN AN EXPERIENCED 2 AGENT AT THE TIME YOU WORKED AT RIVERSIDE? 3 A. YES. 4 Q. WHAT WAS HER RELATIONSHIP, FROM WHAT YOU COULD OBSERVE, 5 WITH MR. PERBETSKY? 6 A. WHEN I FIRST GOT THERE, THERE WAS A CONSTANT -- THEY WERE 7 CLASHING ALL THE TIME OVER THINGS, AND HE WAS ALWAYS CHANGING 8 THINGS, AND THEY WERE HAVING -- THEY WOULD BE BUTTING HEADS IN 9 THE HALLWAY QUITE A BIT. 10 Q. DID YOU EVER HEAR HER YELL AT HIM AND THREATEN TO FILE 11 EEO COMPLAINTS? 12 A. OH, YES, SIR. 13 Q. LET'S MOVE ON TO MS. FITZGERALD, WOULD YOU CLASSIFY HER 14 AS A MORE VOCAL AGENT? 15 A. YES. 16 Q. AND DID SHE HAVE TROUBLE -- STRIKE THAT. 17 DID YOU OBSERVE CLASHES BETWEEN MS. FITZGERALD AND MR. 18 PERBETSKY? 19 A. AT TIMES I DID, YES, SIR. 20 Q. WHAT KIND OF CLASHES DID YOU OBSERVE? 21 A. THERE WOULD BE CLASHES OVER THE WAY A CASE WOULD BE 22 CONDUCTED OR CERTAIN DECISIONS THAT SHE THOUGHT THAT SHOULD BE 23 MADE AND HE WOULDN'T DO IT, THAT TYPE OF THING. 24 Q. NOW, EARLIER YOU SAID YOU OBSERVED MS. MOLOIAN SHOUTING 25 AT MR. PERBETSKY, THREATEN TO FILE EEO COMPLAINTS; IS THAT MATIVI - DIRECT 12 1 FAIR? 2 A. YES. 3 Q. DID YOU EVER OBSERVE MS. FITZGERALD DO ANYTHING LIKE 4 THAT? 5 A. NO. 6 Q. DID YOU EVER OBSERVE MS. FITZGERALD DO -- BE ANYTHING 7 OTHER THAN PROFESSIONAL WITH ANY OF HER SUPERIORS? 8 A. NO. 9 Q. DID MR. PERBETSKY GIVE THE APPEARANCE OF FAVORING SOME OF 10 THE AGENTS IN THE OFFICE? 11 A. AT ONE POINT HE STARTED TO, YES. 12 Q. WHO WAS THE AGENT THAT YOU'RE REFERRING TO? 13 A. WELL, THE AGENT I'M REFERRING TO IS AN INDIVIDUAL -- WAS 14 A REALLY GOOD AGENT, HIS NAME WAS MIKE ARNOLD. HE SHARED MY 15 OFFICE WITH ME. WE WERE ROOMMATES IN THE SAME LITTLE OFFICE. 16 Q. WHAT THINGS GAVE THE APPEARANCE, AT LEAST TO YOU, THAT HE 17 WAS FAVORING MR. ARNOLD OVER OTHER AGENTS? 18 A. WELL, JUST IN GENERAL, THE MAIN THING IS THAT IT SEEMED 19 EVERY DAY ARNOLD WOULD GO TO LUNCH WITH THE SUPERVISORS AND/OR 20 THE RAIC AND THEY WOULD BE OUT THE DOOR TOGETHER EVERY DAY. 21 Q. DID YOU BRING THIS TO MR. PERBETSKY'S ATTENTION? 22 A. YES, SIR. 23 Q. AND WHAT DID MR. PERBETSKY SAY, IF ANYTHING, TO YOU ABOUT 24 IT? 25 A. YOU HAVE TO UNDERSTAND THE CONTEXT OF WHY I BROUGHT IT TO MATIVI - DIRECT 13 1 HIS ATTENTION. IT WAS NOT THE ACT OF GOING TO LUNCH ALL THE 2 TIME, BUT IT WOULD BE MANAGEMENT DECISIONS THAT WOULD HAVE TO 3 BE MADE. SUCH AS I RECALL ONE INCIDENT WHERE ONE OF US HAD TO 4 GO TO THE BORDER FOR LIKE A 60-DAY ASSIGNMENT IN SUMMERTIME, 5 IN THE MIDDLE OF NOWHERE, AND NOBODY WANTED TO. YOU COULD 6 IMAGINE IF YOU MAKE A DECISION IN THE AFTERNOON ABOUT WHO IS 7 GOING TO BE THE ONE OF US THAT GETS PICKED, IT LOOKS BAD WHEN 8 YOU GO TO LUNCH WITH HIM AND THEN COME BACK AND THEN MAKE THE 9 DECISION, AND THEN OBVIOUSLY IT'S NOT HIM, IT'S SOMEBODY ELSE. 10 I SAID, "YOU SHOULD MAKE THE DECISION IN THE MORNING AND THEN 11 GO TO LUNCH. I'M NOT SAYING ANYTHING IS GOING ON, IT LOOKS 12 BAD AND GIVES A BAD APPEARANCE." 13 Q. WHAT WAS MR. PERBETSKY'S REPLY? 14 A. HE DIDN'T WANT TO HEAR THAT. HE JUST DIDN'T SEE THE 15 LOGIC IN THAT. 16 Q. ALL RIGHT, LET'S MOVE ON TO ANOTHER AREA. DURING THE 17 TIME THAT YOU WORKED FOR CUSTOMS, WERE YOU FAMILIAR WITH THE 18 AWARDS PROCESS? 19 A. YES, SIR. 20 Q. WE'VE HEARD TESTIMONY THAT GENERALLY GOOD AGENTS WERE 21 ELIGIBLE FOR AWARDS FOR ACHIEVEMENTS THAT THEY MADE DURING 22 THEIR -- DURING THE COURSE OF THEIR WORK; IS THAT FAIR? 23 A. YES, SIR, I RECEIVED A NUMBER OF THOSE. 24 Q. DID YOU EVER RECEIVE AN AWARD FOR WORKING ON A CASE THAT 25 YOU HAD NO INVOLVEMENT IN? MATIVI - DIRECT 14 1 A. YES, ONCE. 2 Q. WHEN WAS THAT? 3 A. IT WAS LATER ON IN MY CAREER, IT WAS A BIG PARTY, AND 4 THEY WERE THROWING -- THE SAIC WAS THROWING A PARTY THAT 5 EVERYONE WAS GETTING AWARDS, AND I GOT CALLED UP AND I WAS 6 HANDED A THING WHERE I WAS GOING TO GET A $100 AWARD. 7 Q. WHO HANDED THAT TO YOU? 8 A. MR. HENSLEY, THE SAIC AT THE TIME. 9 Q. WHAT YEAR WAS THIS? 10 A. IT WAS AFTER THE RAILROAD CAR CASE. IT WAS PROBABLY LATE 11 90S, I WOULD HAVE TO RECALL. AND I SAID TO HIM, "JOHN, WHAT'S 12 THIS FOR?" I WAS KIND OF JOKING BECAUSE I DIDN'T RECOGNIZE 13 THE CASE NAME. I DIDN'T RECOGNIZE THE AGENTS, ANYBODY I WAS 14 STANDING THERE WITH. AND HE SAID, "YOU MUST HAVE WORKED ON 15 THE CASE." I SAID, "OKAY." 16 Q. YOU MENTIONED THE TANKER CAR CASE, LET'S TALK ABOUT THAT 17 FOR A MOMENT. WAS IT YOUR UNDERSTANDING THAT MS. FITZGERALD 18 WAS WORKING ON A TANKER CAR PROJECT? 19 A. WELL, THAT WAS LATER ON. I MEAN, AFTER THE FIRST TANKER 20 CAR, THAT WAS A CASE THAT CAME UP. I WOULDN'T CALL IT A 21 PROJECT, IT WAS JUST AN INVESTIGATION BEGAN. 22 Q. LET'S START AT THE VERY BEGINNING. WERE YOU INVOLVED IN 23 THE INVESTIGATION OF A TANKER CAR WHERE MS. FITZGERALD WENT 24 DOWN TO THE RAIL YARDS AND FOUND NOTHING IN A CAR? 25 A. ONCE, YES. MATIVI - DIRECT 15 1 Q. AND FROM THAT FAILED ATTEMPT, DID YOU SIT DOWN WITH MS. 2 FITZGERALD AND TRY TO DEVELOP SOME IDENTIFIERS TO HONE DOWN ON 3 THE TANKER CARS YOU WOULD BE LOOKING AT? 4 A. YES. 5 Q. WHAT DID YOU DO IN THAT REGARD? 6 A. AT THE TIME I HAD BEEN ASKED BY GARY PINKAVA, HE WAS THE 7 RAIC -- HE KNEW I WAS GOING TO BE RETIRING PRETTY SOON. IT 8 WAS WITHIN A MONTH OR TWO -- I HAD A TWO-FOLD ASSIGNMENT; I 9 WAS GOING TO ASSIST DARLENE WITH A BIG CASE THAT SHE HAD GOING 10 WITH DOZENS OF SUSPECTS. 11 Q. OKAY, LET ME INTERRUPT YOU RIGHT THERE. WE'VE NOW MOVED 12 ON TO THE SECOND TANKER CAR INVESTIGATION? 13 A. RIGHT. THE FIRST ONE HAD ALREADY BEEN SEIZED AND 14 PROCESSED AND DONE, WITH THE NARCOTICS, AND I WAS ONLY 15 INVOLVED IN THAT BECAUSE I WAS JUST ONE OF THE PEOPLE IN THE 16 OFFICE. 17 Q. ALL RIGHT, LET'S START AT THE BEGINNING THEN. AT SOME 18 POINT IN TIME, WERE YOU INVOLVED IN ANY WAY IN A TANKER CAR 19 SEIZURE THAT YIELDED, LIKE, 8,000 POUNDS OF MARIJUANA AND 20 MAYBE 34 KILOS OF PURE COCAINE? 21 A. YES. 22 Q. HOW WERE YOU INVOLVED IN THAT? 23 A. I WAS ONE OF THE AGENTS ASSIGNED TO THE CASE TO JUST 24 ASSIST IN THE INVESTIGATION, JUST BE OUT THERE. 25 Q. OKAY. MATIVI - DIRECT 16 1 A. I RODE THE RAILROAD CAR, WHEN WE TOOK THE RAILROAD CAR 2 INTO THE LUMBER YARD WHERE WE WERE -- AFTER THE NARCOTICS HAD 3 BEEN TAKEN OUT, WE PUT SOME NARCOTICS IN AND WE WERE HOPING 4 THAT THE SUSPECTS WOULD COME BACK, AND I RODE THE RAILROAD CAR 5 TO HELP PARK IT AT THE LUMBERYARD GATE. 6 Q. OKAY. 7 A. I WAS INVOLVED IN THAT CASE, BUT I THINK EVERYONE IN THE 8 OFFICE WAS AT THAT POINT. 9 Q. THAT WAS THE CONTROLLED DELIVERY PORTION OF IT? 10 A. THAT WAS, YES, SIR. 11 Q. BEFORE THE CONTROLLED DELIVERY PORTION, DID YOU SIT DOWN 12 WITH MS. FITZGERALD AND TRY TO COME UP WITH SOME IDENTIFIERS 13 FOR SUSPECT RAILROAD CARS? 14 A. THE IDENTIFIER THING CAME AFTER THE CONTROLLED DELIVERY. 15 Q. WHAT DID YOU DO IN THAT REGARD? 16 A. WELL, WE COULD SEE THAT THERE WAS GOING TO BE -- THERE 17 WAS A POTENTIAL PROBLEM WITH RAILROAD TANKER CARS THAT WERE 18 OVERWEIGHT AND THEY COULDN'T BE EXAMINED AT THE BORDER. 19 APPARENTLY, AS I UNDERSTAND IT, SOME PART OF THE MACHINERY OR 20 SOMETHING HAD BEEN BROKEN AT THE BORDER, AND SO SOME OF THESE 21 CARS WERE COMING UP FIVE, 10, 15, 20 TONS OVERWEIGHT AND WERE 22 ALLEGEDLY WERE SUPPOSED TO BE EMPTY. I THOUGHT WE WOULD SET 23 UP A PROJECT WHERE RATHER THAN TRY TO WEIGH EVERY OVERWEIGHT 24 CAR, WHICH WOULD BE A WASTE OF TIME AND EFFORT, I WOULD -- 25 Q. AND ALSO STOP COMMERCE BASICALLY? MATIVI - DIRECT 17 1 A. IT WOULD, YES. SO WE THOUGHT WE WOULD SET UP SOME SORT 2 OF PROGRAM WHERE WE WOULD IDENTIFY CARS BY CERTAIN AMOUNT OF 3 WEIGHT, OVERWEIGHT, THE COMPANY WOULD HAVE HAD TO HAVE BEEN IN 4 BUSINESS LESS THAN A YEAR OR TWO, CERTAIN THINGS THAT WOULD BE 5 LIKE WHAT WE CALL LIKE RED FLAGS, OKAY, THIS ONE COULD BE 6 QUALIFIED THEN AS A CAR WE SHOULD LOOK AT. AND KNOWING, BASED 7 ON WHAT I COULD SEE AND WHAT MY EXPERIENCE WAS, THERE WEREN'T 8 GOING TO BE THAT MANY, THERE WEREN'T GOING TO BE DOZENS OF 9 THEM, JUST GOING TO BE A SMALL AMOUNT, BUT WE WOULD HAVE 10 ENOUGH TO GO ON THAT WOULD GIVE US SOME IDEA THAT THERE MIGHT 11 BE A POTENTIAL THAT THEY WOULD HAVE NARCOTICS IN THEM LIKE THE 12 ONE BEFORE. 13 Q. WITHOUT GOING INTO ALL THE GORY DETAILS, SPECIFICALLY, 14 YOU HAD SOME INFORMATION FROM A COOPERATING WITNESS, CORRECT? 15 A. I DIDN'T PERSONALLY, NO. I UNDERSTAND THAT DARLENE DID. 16 Q. SHE CONVEYED THAT TO YOU AND THAT WAS USED IN HELPING TO 17 MAKE THE PROFILE, AS YOU CALL IT? 18 A. RIGHT. 19 Q. YOU HAD A SUSPECT BROKER; IS THAT CORRECT? 20 A. I UNDERSTOOD THERE WAS ONE, AND THAT I THINK BASED ON 21 LOOKING AT HIM WE COULD SEE WHAT THE PROFILE WAS AND MAYBE 22 OTHER BROKERS OR COMPANIES WOULD MAYBE FIT THAT SAME PROFILE. 23 Q. AND I IMAGINE YOU REVIEWED THE PAPERWORK CONCERNING THE 24 CAR THAT YIELDED THE BIG SEIZURE TO SEE WHERE IT EMANATED 25 FROM, FOR EXAMPLE? MATIVI - DIRECT 18 1 A. YES. 2 Q. WHERE IT WAS ROUTED TO, AND THE WAY IT WAS ROUTED? 3 A. WE LOOKED INTO THE FACT THAT I WAS AMAZED AT HOW YOU 4 COULD DO THAT AND MOVE A RAILROAD CAR AROUND THE COUNTRY JUST 5 BY TELEPHONE. 6 Q. NOW, AFTER HELPING MS. FITZGERALD COMPILE THIS PROFILE, 7 WAS IT EVER BROUGHT TO YOUR ATTENTION THAT THERE WERE FIVE 8 CARS SITTING IN THE COLTON RAIL YARD MANIFESTING BETWEEN 25 9 AND 40 TONS OVERWEIGHT TOTAL THAT FIT THE CRITERIA THAT YOU 10 AND MS. FITZGERALD HAD DEVELOPED? 11 A. YEAH, I RECALL THERE WERE THE FIVE CARS. THE EXACT 12 TONNAGE OVERWEIGHT, I DON'T KNOW, BUT THAT WOULD BE A FAIR 13 STATEMENT, SIR. 14 Q. DID MS. FITZGERALD PROVIDE YOU WITH ANY DOCUMENTS THAT 15 SUPPORT THE ALLEGATIONS SHE WAS MAKING ABOUT THE FIVE TANKER 16 CARS IN THE COLTON YARD? 17 A. I BELIEVE THERE WERE SOME DOCUMENTS. I DON'T RECALL WHAT 18 THEY WERE EXACTLY AT THIS POINT IN TIME. IT'S BEEN A LOT OF 19 YEARS. 20 Q. DO YOU RECALL, IF ANYTHING, WHAT MS. FITZGERALD ASKED TO 21 YOU DO WITH REGARD TO THE FIVE TANKER CARS? 22 A. WELL, WE WANTED TO SEARCH THEM. WE HAD MET WITH THE 23 UNIFORM INSPECTORS -- BECAUSE I KNEW THAT WE OBVIOUSLY HAD TO 24 HAVE UNIFORMED INSPECTORS INVOLVED, THE WAY CUSTOMS WAS SET UP 25 AT THE TIME, AND STILL IS PROBABLY, THE PORT DIRECTOR AND MATIVI - DIRECT 19 1 UNIFORMED INSPECTORS HAD TO BE INVOLVED IN THAT TYPE OF THING. 2 WE JUST COULDN'T ACT ARBITRARILY. 3 Q. AND WAS IT YOUR UNDERSTANDING THAT MS. FITZGERALD HAD SET 4 UP A NETWORK OF LAW ENFORCEMENT AGENTS, INCLUDING THE 5 INSPECTOR SIDE OF CUSTOMS, TO ADDRESS THIS ISSUE? 6 A. YES. 7 Q. AND TO YOUR RECOLLECTION, DID SHE CALL THAT EFFORT AN 8 OPERATION? 9 A. I BELIEVE SO. MOST EVERYTHING LIKE THAT WOULD HAVE BEEN 10 TAGGED WITH SOME SORT OF OPERATION MONIKER, I WOULD THINK. 11 Q. DO YOU HAVE ANY REMEMBRANCE OF WHAT THE OPERATION WAS 12 CALLED? 13 A. I CAN'T REMEMBER AT THIS POINT IN TIME. 14 Q. NOW, DID YOU GO OUT THERE AND LOOK AT THESE FIVE TANKER 15 CARS? 16 A. NO. 17 Q. WHY NOT? 18 A. WELL, I HAD -- PART OF THIS PROPOSAL I THOUGHT THIS WOULD 19 BE A GOOD OPPORTUNITY TO BRING IT TO THE ATTENTION OF THE 20 RAIC, WHO WAS GARY PINKAVA, WHO WAS RELATIVELY NEW, HE HADN'T 21 BEEN THERE THAT LONG, AND I PROPOSED TO HIM THIS IDEA I HAD 22 AND THAT WE SHOULD DO THAT AND GO OUT AND SEE THESE THINGS, 23 AND HE SAID NO. 24 Q. DID HE TELL YOU WHY? 25 A. WELL, FIRST CONVERSATION HE SAID NO, BUT HE WOULD CHECK MATIVI - DIRECT 20 1 WITH THE FRONT OFFICE. I REMEMBER THAT SPECIFICALLY. HE SAID 2 HE DID AND -- 3 Q. LET ME STOP YOU RIGHT THERE. THE FRONT OFFICE, WAS THERE 4 ANYBODY HIGHER IN THE RAIC RIVERSIDE OFFICE, TO YOUR 5 KNOWLEDGE, THAT MR. PINKAVA COULD GO TO? 6 A. HE WOULD GO TO THE ASSISTANT SPECIAL AGENT IN CHARGE AT 7 THE TIME, I CAN'T REMEMBER WHO THAT WAS, WHO WAS IN CHARGE OF 8 THE OUTLYING RAIC OFFICES, SUCH AS LAX AND SANTA ANA AND SUCH. 9 Q. AND THAT PERSON WAS PHYSICALLY LOCATED WHERE? 10 A. IT WOULD BE AT TERMINAL ISLAND. I DON'T THINK THEY HAD 11 QUITE MOVED YET TO LONG BEACH. 12 Q. THAT PERSON WOULD BE WHAT YOU -- DO YOU RECALL THE TITLE? 13 A. THAT WAS ASSISTANT SPECIAL AGENT IN CHARGE AT THE TIME. 14 THEY CHANGED TITLES LATER AND ADDED A FEW MORE WORTH WORDS TO 15 IT. ESSENTIALLY THEN THE SAIC, THE SPECIAL AGENT IN CHARGE, 16 WAS THE PERSON IN CHARGE OF LOS ANGELES. 17 Q. AND MR. PINKAVA TOLD YOU HE WAS GOING TO GO TO LOS 18 ANGELES TO THE SAIC OFFICE, IS THAT FAIR? 19 A. HE DIDN'T SAY HE WAS GOING TO GO THERE, HE JUST SAID, 20 "I'M GOING TO CHECK WITH THE FRONT OFFICE." I DIDN'T ASK WHO, 21 OR WHEN OR HOW. 22 Q. THAT'S WHAT I'M TRYING TO DETERMINE. BASED ON YOUR 23 EXPERIENCE AS A CUSTOMS EMPLOYEE, WHAT OTHER FRONT OFFICE 24 POSSIBILITIES COULD THERE BE FOR HIM TO GO CHECK WITH? 25 A. IT'S OBVIOUS WHEN SOMEONE SAYS THE "FRONT OFFICE," THAT'S MATIVI - DIRECT 21 1 WHAT THEY MEANT, THE SAIC OFFICE. 2 Q. THEN WHAT HAPPENED? 3 A. WELL, THEN HE SAID, "NO, THEY SAID NO, IT'S NOT 4 HAPPENING, JUST FORGET ABOUT IT." 5 Q. DID HE GIVE YOU ANY REASONS WHY? 6 A. NO. 7 Q. DID MR. PINKAVA TELL YOU, "CALL THE INSPECTORS, IT'S 8 THEIR JOB," OR WORDS TO THAT EFFECT? 9 A. NO. 10 Q. ARE YOU FAMILIAR WITH THE CONCEPT OF INSUBORDINATION? 11 A. I BELIEVE SO, YES. 12 Q. YOU WOULD AGREE WITH ME THAT REFUSING TO FOLLOW A DIRECT 13 ORDER, SUCH AS "CALL THE INSPECTORS, IT'S THEIR JOB, THEY 14 SHOULD DO IT," WOULD BE INSUBORDINATION ON YOUR PART, CORRECT? 15 A. I GUESS IT WOULD BE. I WOULDN'T DEFINE IT THAT WAY. 16 WHAT DO YOU MEAN, BY JUST REFUSING TO? 17 Q. YES. 18 A. YES, I GUESS YOU COULD CALL IT THAT, IF YOU WANTED TO. 19 Q. AT THIS POINT IN TIME YOU'RE REAL CLOSE TO RETIREMENT; IS 20 THAT CORRECT? 21 A. YEAH. I'D BEEN AROUND SO LONG AT THAT POINT AND I WAS 22 JUST GOING TO RETIRE PRETTY SOON SO -- IF HE TOLD ME TO DO 23 THAT I WOULD HAVE DONE IT. I HAD NO REASON NOT TO. 24 Q. NOW, DID YOU HAVE ANY CONVERSATIONS WITH MR. PINKAVA 25 ABOUT THE -- ABOUT PRESSURE TESTING THE VEHICLES? MATIVI - DIRECT 22 1 A. WE MAY HAVE, IN GENERAL TERMS, AS TO WHAT THEY HAD -- 2 SOMEHOW YOU HAD TO DO THAT. I WASN'T THAT FAMILIAR WITH THE 3 ACTUAL PHYSICAL PROCESS OF WHAT HAD TO BE DONE. 4 Q. AND DID YOU RECALL SPEAKING, THE FIRST TIME THIS WAS 5 BROUGHT TO YOUR ATTENTION, WITH SOMEBODY NAMED BOB GNAT WITH 6 THE UNION PACIFIC POLICE? 7 A. I REMEMBER HIS NAME. I THINK HE WAS THE GENTLEMAN THAT 8 WAS AT ONE OR TWO OF THE MEETINGS AT THE OFFICE AND HAD BEEN 9 INVOLVED IN HELPING US GAIN ACCESS TO THE RAIL YARDS AND THE 10 TRAINS AND KEEP TRACK OF THE TRAINS. 11 Q. DO YOU RECALL WHETHER HE WAS IN MS. FITZGERALD'S OFFICE 12 ON THE DAY THAT SHE BROUGHT THE FIVE TANKER CARS TO YOUR 13 ATTENTION? 14 A. I BELIEVE SO, YES. 15 Q. AND I'M SORRY, GOING BACK TO THE ISSUE OF THE INSPECTORS, 16 AGAIN, IT WAS YOUR UNDERSTANDING THAT BASED ON THE NETWORK 17 THAT MS. FITZGERALD HAD DEVELOPED THAT THE INSPECTORS WERE 18 PART OF HER TEAM? 19 A. YES, SIR, THAT WOULD BE A TRUE STATEMENT. 20 Q. NOW, DO YOU RECALL WHETHER THERE WAS ANY CONVERSATION 21 WITH MR. PINKAVA ABOUT THE FACT THAT ARRANGEMENTS HAD BEEN 22 MADE THROUGH MR. GNAT TO PRESSURE TEST THE TANKERS FOR FREE? 23 A. YEAH, I THINK IT WAS ALL PART OF THE PITCH TO GARY WAS 24 THAT -- LOOK, I'D BEEN AROUND LONG ENOUGH TO KNOW YOU NEED TO 25 HAVE CERTAIN THINGS IN PLACE BEFORE YOU GO TO YOUR BOSS TO ASK MATIVI - DIRECT 23 1 FOR SOMETHING BECAUSE IT SAVES A LOT OF TIME AND EFFORT. SO 2 WE SAID, "WE HAVE EVERYTHING IN PLACE. THIS HAS BEEN LINED 3 UP." OBVIOUSLY, IF WE HAD NO ONE LINED UP TO DO THE TESTING 4 OR COOPERATION FROM THE RAILROAD, WHAT WOULD BE THE POINT IN 5 ASKING HIM TO APPROVE SOMETHING. IT WASN'T GOING TO HAPPEN. 6 THE SAME WAY YOU HAD TO HAVE THE INSPECTORS ON BOARD BECAUSE 7 OF THE WAY CUSTOMS' REGULATIONS WORK ON A SMUGGLING SITUATION, 8 THE PORT DIRECTOR AND/OR THE CHIEF INSPECTOR HAD TO BE 9 INVOLVED. 10 Q. BASED UPON YOUR -- I GUESS YOU HAD ABOUT 28 YEARS OF 11 EXPERIENCE IN LAW ENFORCEMENT AT THAT TIME, IS THAT ABOUT 12 RIGHT? 13 A. YES. 14 Q. AND ALSO BASED UPON THE FACT THAT YOU ACTED AS AN ACTING 15 RAIC AND A SUPERVISOR, DID YOU SEE ANY REASON WHY THE TANKER 16 CARS SHOULDN'T AT LEAST BE LOOKED AT? 17 A. NO REASON AT ALL, NO. 18 Q. WHAT WOULD THAT HAVE ENTAILED? 19 A. IT WOULD HAVE BEEN -- AS I TOLD GARY, IT'S ONLY GOING TO 20 INVOLVE EITHER ONE OF US OR TWO OF US. IT'S GOING TO INVOLVE 21 VERY LITTLE MANPOWER IN A SHORT PERIOD OF TIME. THE MAIN WORK 22 IS EITHER GOING TO BE DONE BY THE RAILROAD OR THE INSPECTORS. 23 IT WOULDN'T HAVE TAKEN THAT MUCH TO AT LEAST SEE WHAT WAS 24 THERE, I THOUGHT, BECAUSE OF THE OVERWEIGHT SITUATION. 25 Q. TO THIS DAY, HAVE YOU EVER BEEN GIVEN A SATISFACTORY MATIVI - DIRECT 24 1 EXPLANATION BY ANYONE IN MANAGEMENT AS TO WHY THE TANKER CARS 2 WERE NOT INSPECTED? 3 A. NO. 4 Q. TO YOUR KNOWLEDGE, WERE THE TANKER CARS EVER INSPECTED? 5 A. TO MY KNOWLEDGE, NO. 6 Q. LET ME ASK YOU SOME QUESTIONS ABOUT THE FIRST TANKER CAR 7 SEIZURE, THE ONE WITH THE 8,000 POUNDS OF MARIJUANA AND THE 8 34, 35 KILOS, APPROXIMATELY, OF PURE COCAINE. BASED UPON YOUR 9 EXPERIENCE, WOULD YOU CONSIDER THAT A SIGNIFICANT SEIZURE? 10 A. YES. 11 Q. YOU TESTIFIED A LITTLE EARLIER ABOUT YOUR KNOWLEDGE OF 12 THE AWARD PROCESS; WOULD THAT BE THE TYPE OF ACTIVITY THAT 13 WOULD MERIT AN AWARD FOR THE AGENT INVOLVED IN THAT 14 INVESTIGATION? 15 A. YES, I THINK NOT ONLY THE AGENT BUT EVERYBODY THAT WORKED 16 ON THE CASE. 17 Q. TO YOUR KNOWLEDGE, DID ANYONE WHO WORKED ON THAT CASE OR 18 WAS INVOLVED IN THAT SEIZURE RECEIVE AN AWARD? 19 A. NO. 20 Q. NOW, AT SOME POINT IN TIME DID YOU BECOME AWARE THAT MS. 21 FITZGERALD HAD FILED AN EEO COMPLAINT? 22 A. YES. 23 Q. IN FACT, DID YOU HELP HER WRITE IT? 24 A. NO. 25 Q. DID YOU OBSERVE SHE AND MS. MOLOIAN WRITING THE EEO MATIVI - DIRECT 25 1 COMPLAINT? 2 A. I KNEW THEY WERE TALKING ABOUT. PHYSICALLY WRITING IT, I 3 WASN'T THERE. AT THE TIME, YOU HAVE TO UNDERSTAND, I WAS 4 WORKING IN AND OUT OF THE OFFICE. I WOULD BE GONE ON CASES 5 SOMETIMES FOR MONTHS AT A TIME, AND I WAS WORKING A WIRETAP 6 DOWN IN ORANGE COUNTY, TOO. BUT, YEAH, THEY WERE 7 COLLABORATING, LET'S PUT IT THAT WAY. BUT MY KNOWLEDGE OF 8 THAT CAME AFTER THE FACT, AFTER THEY HAD ALREADY STARTED THE 9 PROCESS. 10 Q. AND AFTER -- AT SOME POINT IN TIME WERE YOU AWARE THAT 11 SHE HAD ACTUALLY FILED A DOCUMENT? 12 A. YES. 13 Q. AND DID YOU OBSERVE ANY CHANGE TOWARDS THE WAY MS. 14 FITZGERALD WAS TREATED AFTER THAT DATE? 15 A. YES. 16 Q. WHAT DID YOU OBSERVE? 17 A. WELL, IT SEEMED TO ME THAT SHE WAS PUT MORE UNDER MORE OF 18 A LOOKING GLASS OR MAGNIFYING GLASS, SO TO SPEAK, JUST SEEMED 19 TO START DOWNHILL JUST WITH INTERNAL AFFAIRS INVESTIGATION -- 20 MR. STUTLER: OBJECTION, YOUR HONOR, MOVE TO STRIKE. 21 THE COURT: YES, THAT TESTIMONY WILL BE STRICKEN. 22 THE WITNESS: I'M SORRY. 23 A. JUST IN GENERAL TERMS, YOU COULD SENSE A CHANGE. 24 Q. AND IS IT A FAIR STATEMENT, GOING BACK TO MR. PERBETSKY, 25 THAT BASED UPON YOUR OBSERVATION HE SEEMED TO GET ALONG A LOT MATIVI - CROSS/STENNETT 26 1 BETTER WITH THE MALE AGENTS THAN HE DID WITH THE FEMALE 2 AGENTS? 3 A. YES. 4 MR. BEBI: NOTHING FURTHER, YOUR HONOR. 5 THE COURT: MR. STUTLER. 6 THE COURT: APPARENTLY MR. STENNETT HAS A FEW 7 QUESTIONS. LET HIM ASK HIS QUESTIONS FIRST. 8 THE WITNESS: THEY CAN'T WAIT TO ASK ME QUESTIONS, 9 YOUR HONOR. 10 THE COURT: THEY'RE DYING TO ASK YOU QUESTIONS. 11 CROSS-EXAMINATION 12 BY MR. STENNETT: 13 Q. GOOD MORNING, MR. MATIVI. 14 A. GOOD MORNING. 15 THE COURT: ARE YOU SURE YOU WANT TO ASK QUESTIONS? 16 Q. YOU HAVE ABOUT 28 YEARS IN LAW ENFORCEMENT; IS THAT 17 CORRECT? 18 A. YES, SIR. 19 Q. AND 17 YEARS WITH U.S. CUSTOMS? 20 A. YES, SIR. 21 Q. AND YOU'VE -- AS YOU'VE ALREADY TESTIFIED, YOU WERE OFF 22 AGAIN/ON AGAIN GROUP SUPERVISOR FOR SEVERAL YEARS? 23 A. ON AGAIN AND OFF AGAIN, YES. 24 Q. NOW I WANT TO ASK YOU A LITTLE BIT ABOUT STATISTICS, 25 STATISTICS FOR ARRESTS, SEIZURES -- MATIVI - CROSS/STENNETT 27 1 MR. STUTLER: YOUR HONOR, HE'S NOT AN EXPERT WITNESS. 2 IT SEEMS THAT'S WHERE THIS LINE IS GOING. 3 THE COURT: MR. STENNETT. 4 MR. STENNETT: I'M JUST ASKING FOR HIS EXPERIENCE ON 5 STATS, AND HOW IMPORTANT THEY ARE, AND HOW THEY'RE 6 ACCUMULATED. 7 MR. STUTLER: IT'S ALSO CUMULATIVE. 8 THE COURT: IT IS CUMULATIVE, BUT, YOU KNOW WHAT, I 9 MAY BE SHOOTING MYSELF IN THE FOOT, BUT GO AHEAD, MR. 10 STENNETT. I'M GOING TO GIVE YOU A RELATIVELY SHORT LEASH. 11 Q. YOU'RE AWARE OF THE FACT THAT STATISTICS ARE KEPT ON EACH 12 AGENT, CORRECT? 13 A. YES. 14 Q. AND I ASSUME OVER THE YEARS YOU'VE ACCUMULATED LOTS OF 15 DIFFERENT STATISTICS FROM THE WORK YOU'VE DONE, CORRECT? 16 A. YES. 17 Q. ARE THE -- IN YOUR MIND, DO STATISTICS EQUATE -- A LOT OF 18 STATISTICS EQUATE WITH A GOOD AGENT? 19 MR. STUTLER: OBJECTION, YOUR HONOR, THIS MAN'S NOT AN 20 EXPERT, AND IT'S IRRELEVANT WHAT HE THINKS ABOUT IT. 21 THE COURT: YOU KNOW, THAT'S TRUE, MR. STENNETT, 22 OBJECTION SUSTAINED. 23 Q. HAVE YOU EVER BEEN -- HAVE YOU HAD TIMES WHEN YOU'VE HAD 24 A LOT OF STATISTICS AND OTHER TIMES WHERE YOU GO A LONG TIME 25 WITHOUT STATISTICS? MATIVI - CROSS/STENNETT 28 1 A. YES. 2 Q. HAVE YOU EVER BEEN PRESSURED BY A SUPERVISOR TO GET MORE 3 STATISTICS? 4 A. YES. 5 Q. CAN YOU GIVE ME AN EXAMPLE OF A PERIOD OF TIME THAT YOU 6 HAVE GONE WITHOUT ANY STATISTICS OR VIRTUALLY NO STATISTICS? 7 MR. STUTLER: OBJECTION, YOUR HONOR, RELEVANCE. 8 THE COURT: SUSTAINED. 9 Q. DO STATISTICS DEPEND UPON THE TYPE OF CASES YOU'RE 10 WORKING ON? 11 A. YES, SIR. 12 Q. AND THE TYPE OF CASES THAT YOU'RE ASSIGNED BY YOUR 13 SUPERVISOR? 14 A. YES. 15 Q. WHEN YOU WERE ACTING AS A SUPERVISOR, WERE STATISTICS 16 IMPORTANT TO YOU? 17 MR. STUTLER: OBJECTION, YOUR HONOR, RELEVANCE. 18 THE COURT: OVERRULED. 19 A. IN MY CAPACITY AS A SUPERVISOR? 20 Q. YES. 21 A. NO. 22 Q. WHY NOT? 23 A. WELL, BECAUSE I HAD ENOUGH EXPERIENCE TO REALIZE THAT 24 STATISTICS CHANGED OVER A PERIOD OF MONTHS AND YEARS AND IT 25 DEPENDS ON THE TYPE OF CASES YOU WERE WORKING, AND THE WAY THE MATIVI - CROSS/STENNETT 29 1 SYSTEM WAS SET UP YOU COULD CLAIM STATISTICS, AND IT DIDN'T 2 MATTER WHETHER IT WAS STATE OR FEDERAL -- A STATE ARREST OR A 3 FEDERAL ARREST OR STATE CONVICTION, IT WAS ALL THE SAME IN THE 4 SYSTEM. 5 Q. ARE THERE SOME SUPERVISORS YOU'VE EXPERIENCED WHO WERE -- 6 STATISTICS WERE MORE IMPORTANT TO THAN OTHERS? 7 A. OH, YES. 8 Q. NOW, YOU'RE FAMILIAR WITH HIDTA OFFICES IN DOWNTOWN LOS 9 ANGELES? 10 A. SOMEWHAT, YES, I AM. 11 Q. YOU NEVER WORKED AT THE HIDTA OFFICES, CORRECT? 12 A. NO. 13 Q. AS AN AGENT, WOULD YOU HAVE CONSIDERED A TRANSFER TO 14 HIDTA AS BEING A CAREER ENHANCER? 15 MR. STUTLER: OBJECTION, YOUR HONOR, RELEVANCE. 16 THE COURT: SUSTAINED. 17 Q. LET'S TALK ABOUT THE TEC SYSTEM, THERE'S BEEN SOME 18 DISCUSSION THAT MS. NUNN PULLED UP -- MS. NUNN PULLED UP 19 REPORTS OF MS. FITZGERALD THROUGH THE TEC SYSTEM AT ONE POINT 20 IN TIME. MY QUESTION IS, IS THAT A FAIRLY COMMON PRACTICE FOR 21 ONE AGENT TO PULL UP TEC REPORTS OF ANOTHER? 22 MR. STUTLER: OBJECTION, RELEVANCE, CUMULATIVE. 23 THE COURT: OVERRULED. 24 A. NO. THE REPORTS WERE -- COULD BE LOOKED AT BY, UNLESS 25 THEY WERE RESTRICTED BY SOCIAL SECURITY NUMBER, THEY COULD BE MATIVI - CROSS/STENNETT 30 1 LOOKED AT BY INSPECTORS OR AGENTS, ANYBODY THAT WOULD WANT TO 2 PULL UP A REPORT. THAT'S WHY THE SYSTEM WAS SET UP SO YOU 3 COULD -- IF YOU HAD A SENSITIVE CASE OR YOU DIDN'T WANT 4 ANYBODY TO READ YOU WOULD JUST PUT IN THE SAIC AND GROUP 5 SUPERVISORS, AS LONG AS YOU HAD A CASE NUMBER OR A SUSPECT 6 NAME YOU COULD OPEN UP THE TECS RECORD. 7 Q. AND IF YOU WERE THE ACTING SUPERVISOR AND IT CAME TO YOUR 8 ATTENTION THAT AN AGENT OUTSIDE OF YOUR GROUP HAD PULLED UP A 9 REPORT OF AN AGENT IN YOUR GROUP, WOULD THAT CAUSE YOU 10 CONCERN? 11 MR. STUTLER: OBJECTION, HOW HE WOULD RESPOND IS NOT 12 RELEVANT. 13 THE COURT: SUSTAINED. 14 Q. HAVE YOU EVER SEEN ANYONE INVESTIGATED FOR PULLING UP TEC 15 REPORTS OF ANOTHER AGENT? 16 A. NO. 17 Q. THAT'S IN THE ENTIRE 17 YEARS OF YOUR CAREER WITH 18 CUSTOMS? 19 A. YES. 20 Q. NOW, LET ME ASK YOU ABOUT THE RULES OF CUSTOMS. THERE'S 21 A LOT OF RULES TO FOLLOW AS AN AGENT OF CUSTOMS, CORRECT? 22 A. YES. 23 Q. AND IN YOUR EXPERIENCE, ARE THOSE RULES ALWAYS UNIFORMLY 24 ENFORCED? 25 A. NO. MATIVI - CROSS/STENNETT 31 1 Q. ARE SOME SUPERVISORS MORE STRICT THAN OTHERS IN APPLYING 2 THE RULES? 3 A. WELL, YES, ABOUT WITHOUT KNOWING SPECIFIC RULES, I HAVE A 4 HARD TIME ANSWERING THE QUESTION. SOME OF THEM WERE 5 DIFFERENT. SOME HAD CERTAIN RULES THAT THEY WERE INTO AND 6 SOME WEREN'T. IT JUST DEPENDED ON THE SUPERVISOR. 7 Q. DO SOME SUPERVISORS, IN YOUR EXPERIENCE, ENFORCE RULES 8 MORE STRICTLY AGAINST SOME AGENTS THAN OTHER AGENTS? 9 A. YES. 10 Q. AND SO IT WOULD BE YOUR TESTIMONY THAT SUPERVISORS DO 11 HAVE A CERTAIN AMOUNT OF DISCRETION IN ENFORCING THE RULES OF 12 CONDUCT OF CUSTOMS? 13 A. YES. 14 Q. DO YOU REMEMBER A DEMONSTRATION THAT OCCURRED AT THE RAIC 15 -- EXCUSE ME, AT THE RIVERSIDE OFFICE IN MAY OF -- I'M SORRY, 16 YOU WEREN'T THERE IN MAY OF 1999, WERE YOU? 17 A. NO. 18 Q. NOW, IN YOUR TRAINING AS A CUSTOMS AGENT, DID YOU RECEIVE 19 ANY TRAINING AS TO WHAT TO DO WHEN YOU'RE IN THE FIELD AND 20 SOMEONE APPROACHES YOU WITH A KNIFE? 21 A. ME, PERSONALLY, THE TRAINING? 22 Q. YES. 23 A. NO. 24 Q. IN YOUR EXPERIENCE, WHAT IS TYPICALLY THE RESPONSE THAT 25 WOULD BE GIVEN WHEN YOU'RE CONFRONTED WITH SOMEBODY WITH A MATIVI - CROSS/STUTLER 32 1 KNIFE? 2 MR. STUTLER: OBJECTION, YOUR HONOR, RELEVANCE. 3 THE COURT: SUSTAINED. 4 MR. STENNETT: YOUR HONOR, IT WILL BECOME RELEVANT. 5 MR. STUTLER: THIS MAN IS NOT AN EXPERT WITNESS; I 6 OBJECT. 7 MR. STENNETT: HE'S AN EXPERIENCED CUSTOMS AGENT. 8 THE COURT: DID YOU DESIGNATE HIM AS AN EXPERT? 9 MR. STENNETT: NO. I'M JUST ASKING WHAT THE STANDARD 10 AND CUSTOM IS IN THE FORCE. 11 THE COURT: THE OBJECTION'S SUSTAINED. 12 MR. STENNETT: THANK YOU, SIR. 13 THE WITNESS: THANK YOU. 14 THE COURT: MR. STUTLER. 15 MR. STUTLER: THANK YOU, YOUR HONOR. 16 CROSS-EXAMINATION 17 BY MR. STUTLER: 18 Q. MORNING, MR. MATIVI. 19 A. MORNING. 20 Q. I'M TIM STUTLER. WE MET AT YOUR DEPOSITION A COUPLE OF 21 YEARS AGO. 22 A. OH, YES, I REMEMBER THAT. 23 Q. UP IN RIVERSIDE? 24 A. NO, MINE WAS HERE. UNLESS YOU'RE A RESERVE JAG OFFICER, 25 YOU WEREN'T THE ONE THAT -- MATIVI - CROSS/STUTLER 33 1 Q. I AM. 2 A. YOU DID MY DEPOSITION HERE. 3 Q. FORGIVE ME. 4 A. OKAY. 5 Q. YOU WERE ASKED A COUPLE OF QUESTIONS ABOUT CARI ARN, AND 6 I THINK YOU TESTIFIED SHE'D NEVER COMPLAINED TO YOU ABOUT MS. 7 FITZGERALD; IS THAT CORRECT? 8 A. YES. 9 Q. YOU'RE ACTUALLY A FRIEND OF MS. FITZGERALD, RIGHT? 10 A. I THINK I'M A FRIEND OF MOST EVERYBODY THAT WORKED THERE, 11 AS FAR AS -- I HAVEN'T SEEN HER IN YEARS. 12 Q. MS. FITZGERALD? 13 A. YES. 14 Q. YOU SAW HER BEFORE YOUR DEPOSITION, RIGHT? 15 A. OH, YES, AS FAR AS THAT IS CONCERNED, YES, I DID. 16 Q. YOU ACTUALLY MET WITH HER AND HER ATTORNEY BEFORE YOU 17 TESTIFIED AT YOUR DEPOSITION? 18 A. RIGHT. 19 Q. MAKE SURE WE DON'T TALK OVER EACH OTHER. 20 A. I'M SORRY. 21 Q. THAT'S OKAY. YOU'RE CLOSER TO THE COURT REPORTER THAN I 22 AM. 23 YOU BROUGHT SOME DOCUMENTS WITH YOU TODAY. DID YOU 24 BRING YOUR DEPOSITION TRANSCRIPT? 25 A. NO. MATIVI - CROSS/STUTLER 34 1 Q. SOME NOTES TO REVIEW IN PREPARING FOR THIS? 2 A. ALL I BROUGHT WAS A TIME LINE SO I COULD KEEP TRACK OF 3 WHAT OFFICES I WORKED IN AND WHEN I WORKED IN, JUST IN CASE I 4 NEEDED IT, BUT I HAVEN'T LOOKED AT ANYTHING. 5 Q. YOU SPOKE WITH MR. BEBI A COUPLE TIMES LAST WEEK? 6 A. HE CALLED ME TO TELL ME WHEN TO COME DOWN, AND THEN LAST 7 NIGHT HE CALLED TO TELL ME WHAT TIME TO BE HERE. 8 Q. YOU TALK ABOUT THE CASE? 9 A. HE ASKED ME ONE OR TWO QUESTIONS ABOUT THE TESTIMONY THAT 10 HAD TAKEN PLACE. 11 Q. LET'S TALK ABOUT MR. PERBETSKY. I KNOW YOU GAVE SOME 12 TESTIMONY REGARDING HIM. MS. FITZGERALD BELLYACHED A LOT 13 ABOUT HIM, DIDN'T SHE? 14 A. TOWARDS THE END I WOULD SAY THAT'S TRUE. 15 Q. SHE HAD QUITE A FEW COMPLAINTS ABOUT HIS DECISIONS. 16 A. YEAH, I WOULD SAY SO. 17 Q. SHE WAS NOT SHY ABOUT COMPLAINING, WAS SHE? 18 A. TO HIM AND TO OTHER PEOPLE, PROBABLY NOT, BUT SHE KEPT IT 19 WITHIN THE OFFICE, AS FAR AS I KNOW. 20 Q. SHE WAS ONE OF THE MORE VOCAL PEOPLE IN THE OFFICE? 21 A. WELL, THERE WAS QUITE A FEW OF US THAT WERE VOCAL, SHE 22 WAS ONE OF THEM, AS OPPOSED TO SOMEONE WHO IS MORE PASSIVE AND 23 QUIET, YES, I WOULD SAY SO. 24 Q. MR. PERBETSKY GOT ALONG WELL WITH EVERYBODY THERE, WOULD 25 YOU AGREE WITH THAT? MATIVI - CROSS/STUTLER 35 1 A. WE'VE -- TOWARDS THE END I HAD SOME REAL CONFLICTS WITH 2 HIM OVER THINGS WITH THE UNITED STATES ATTORNEY, AND HE DUG 3 HIS HEELS IN ON THINGS AND LOST. 4 Q. THOSE WERE ALL WORK-RELATED ISSUES? 5 A. IT WAS ALL WORK RELATED, BUT IT WASN'T HE GOT ALONG WITH 6 EVERYBODY ALL THE TIME. HE WOULD MAKE DECISIONS THAT A LOT OF 7 US DIDN'T AGREE WITH, AND IT DEPENDS ON HOW HE RESOLVED IT. 8 THAT WAS PART OF THE BEING AN AGENT AND DEALING WITH THE 9 SUPERVISOR. IT WAS UPS AND DOWNS. 10 Q. A LOT OF TIMES SUPERVISORS MAKE DECISIONS AND THE 11 EMPLOYEES AREN'T HAPPY WITH THAT. 12 A. THAT'S CORRECT. 13 Q. BUT OTHER THAN THE WORK-RELATED DECISIONS, HE GOT ALONG 14 WELL WITH EVERYBODY? 15 A. SURE, YES. 16 Q. YOU MENTIONED HE WOULD TANGLE YOU WITH OCCASIONALLY? 17 A. SURE. 18 Q. ALWAYS OVER WORK-RELATED ISSUES? 19 A. YES. 20 Q. AND HE TANGLED WITH MS. FITZGERALD? 21 A. YES. 22 Q. WHEN YOU TANGLED WITH HIM, SOMETIMES YOU WOULD WIN, 23 SOMETIMES HE WOULD WIN? 24 A. MOST OF THE TIME I WON. 25 THE COURT: EVEN THOUGH HE WAS THE BOSS. MATIVI - CROSS/STUTLER 36 1 A. WELL, BECAUSE I HAD ENOUGH -- I'D BEEN AROUND SO LONG 2 THAT I KNEW WHAT WAS GOING TO HAPPEN. I COULD SEE WHAT WAS 3 GOING TO HAPPEN, AND I WOULD TELL MIKE, "MIKE, THIS IS GOING 4 TO HAPPEN." I WAS REALLY RIGHT ON MOST OF THE TIMES THAT I 5 HAD CONFLICTS WITH HIM. THE TIMES HE JUST DUG HIS HEELS IN, 6 IT WAS JUST "BY GOSH, THIS IS THE WAY IT'S GOING TO BE," 7 PERIOD. I MEAN, THERE WERE TIMES WHEN HE WON, TOO, AND I 8 WOULD BACK OFF. I'D LOSE A BATTLE AND MAYBE LOOK AT TRYING TO 9 WIN THE WAR LATER OR SOMETHING. 10 Q. WOULD YOU AGREE YOU HAD A SLIGHTLY DIFFERENT RELATIONSHIP 11 WITH HIM THAN, SAY, MS. FITZGERALD WOULD BECAUSE OF YOUR 12 SENIORITY, YOUR STATUS, YOUR MATURITY? 13 A. YOU HAVE TO UNDERSTAND THAT I'D BEEN AROUND, I KNEW LIKE 14 THE SAIC, I KNEW PEOPLE I COULD CALL THEM AND TALK TO THEM 15 ABOUT CASES AND THINGS, AND I HAD SOME CREDIBILITY BECAUSE I'D 16 BEEN AROUND A LONG TIME. AND THE SAME WITH THE SUPERVISORS, 17 THEY WOULD TRUST ME AND KNOW THAT WHEN I WAS OUT IN THE FIELD 18 THEY WOULD SAY, "IS BOB THERE? WHAT DID BOB SAY?" AND THAT 19 WAS KIND OF OUR RELATIONSHIP. I WAS IN BETWEEN THE SQUAD AND 20 THE BOSSES, AND SO I HAD, OBVIOUSLY, A DIFFERENT RELATIONSHIP 21 WITH THE BOSSES, WHO WERE ALL MY AGE, AND ALL MY PEER GROUP 22 TYPE THING. 23 Q. MS. FITZGERALD WAS RELATIVELY JUNIOR AT THE TIME YOU 24 WORKED WITH HER, COMPARED TO YOU CERTAINLY? 25 A. COMPARED TO ME, YES. MATIVI - CROSS/STUTLER 37 1 Q. AND CERTAINLY COMPARED TO MR. PERBETSKY? 2 A. YES. 3 Q. AND HE WAS HER BOSS? 4 A. YES. 5 Q. WHEN SHE WOULD HAVE CONFRONTATIONS OR TANGLE WITH HIM, 6 SHE WOULDN'T BACK DOWN THOUGH, RIGHT? 7 A. I DON'T KNOW. WITHOUT KNOWING SPECIFICS, I'M SURE SHE 8 HAD TO HAVE BACKED DOWN AT SOME POINT IN CERTAIN THINGS, BUT I 9 WASN'T -- YOU SEE, I WASN'T THERE ALL THE TIME, EVERY DAY 10 TOWARDS THE END. I HAD TWO WIRETAPS, THE LAST ONE LASTED 11 ALMOST A YEAR. 12 Q. DO YOU HAVE YOUR DEPOSITION IN FRONT OF YOU, SIR? 13 A. YES, I DO. 14 Q. WHY DON'T YOU PULL THAT OUT AND TAKE A LOOK AT PAGE 76. 15 A. I'M SORRY, WHAT PAGE? 16 Q. 76, PLEASE. I'M GOING TO START AT LINE 22. DO YOU SEE 17 WHERE I AM? I'M GOING TO READ THROUGH LINE 1 ON THE NEXT 18 PAGE. 19 A. STARTING AT 22, OKAY. 20 Q. YES, SIR. "NO, MR. PERBETSKY GOT ALONG WITH ALL OF US. 21 HE TANGLED WITH -- THE TWO STRONG-WILLED WOMEN IN THE OFFICE 22 WERE LILLIAN AND DARLENE, AND THEY WERE TYPES THAT WOULDN'T 23 BACK DOWN AND HE WOULD TANGLE WITH THEM." THAT'S CORRECT, 24 RIGHT? 25 A. THAT -- IN MOST CASES, I WASN'T SPEAKING IN ABSOLUTES, MATIVI - CROSS/STUTLER 38 1 BUT YES, I WOULD SAY THAT'S TRUE. 2 MR. BEBI: YOUR HONOR, BASED ON THE RULE OF 3 COMPLETENESS, I WOULD ASK THE QUESTION ALSO BE READ TO PUT 4 THIS IN CONTEXT AND ALSO THE REMAINDER OF THE ANSWER. 5 THE COURT: WELL, YOU'VE GOT A CHOICE, MR. STUTLER, 6 YOU CAN EITHER DO THAT OR I'LL ALLOW MR. BEBI TO DO IT WHEN IT 7 COMES TIME FOR HIS REDIRECT EXAMINATION. 8 MR. STUTLER: I'M ACTUALLY GOING TO COVER THESE OTHER 9 AREAS. IF HE WANTS TO READ IT WHEN HE COMES UP, I DON'T HAVE 10 A PROBLEM WITH THAT. THAT'S OKAY. 11 A. DO YOU WANT ME TO LEAVE IT OPEN TO THIS PAGE? 12 Q. NO. YOU NEVER SAW ANY OF THE MALE EMPLOYEES THAT WOULD 13 DO THAT -- 14 A. I'M SORRY, I WAS COUGHING. 15 Q. YOU NEVER SAW ANY OF THE MALE EMPLOYEES THAT WOULD DO 16 THAT, THAT WOULD REFUSE TO BACK DOWN; IS THAT CORRECT? 17 A. NO. 18 Q. THAT'S NOT CORRECT? 19 A. THERE WERE MANY TIMES I REFUSED TO BACK DOWN WHEN I WAS 20 RIGHT. 21 Q. WHY DON'T YOU PULL THAT OUT AGAIN AND LOOK AT PAGE 78, 22 LINES 5 TO 9. 23 A. OKAY. 24 Q. LET'S SAY 6 TO 9. QUESTION: "AND YOU NEVER SAW ANY MALE 25 EMPLOYEES DEALING WITH PERBETSKY IN THE SAME MANNER WHERE THEY MATIVI - CROSS/STUTLER 39 1 WOULDN'T BACK DOWN?" ANSWER: "NO." DID I READ THAT 2 CORRECTLY? 3 A. YES, BUT THE CONTEXT WAS THAT I WASN'T TALKING ABOUT THE 4 OFFICE, OTHER PEOPLE, IT WASN'T ME I WAS REFERRING TO. 5 Q. OTHER THAN YOU? 6 A. OTHER THAN ME, I PROBABLY SHOULD HAVE SAID THAT IN THE 7 DEPOSITION, OTHER THAN ME. 8 Q. AND YOU WERE A VERY SENIOR AGENT? 9 A. YES, SIR. 10 Q. AND DARLENE WASN'T? 11 A. NO. 12 Q. NONE OF THE OTHER EMPLOYEES, EXCEPT FOR MR. PERBETSKY, 13 WERE AT YOUR LEVEL OF SENIORITY? 14 A. YES, AS FAR AS -- THERE WERE VERY FEW PEOPLE THAT HAD 15 BEEN AGENTS SINCE THEY WERE 22 YEARS OLD, LIKE MIKE WAS YOUNG 16 WHEN HE BECAME AN AGENT, TOO, RIGHT OUT OF THE MARINE CORPS. 17 Q. SO BASICALLY WHAT WE'RE SAYING IS YOU DIDN'T SEE ANY OF 18 THE JUNIOR AGENTS THAT WOULDN'T BACK DOWN AS DARLENE WOULDN'T? 19 A. SEE, I WASN'T THERE EVERY DAY, AND I WASN'T INVOLVED IN 20 EVERYTHING, BUT I'M SURE -- MY PERSONAL RECOLLECTION IS 21 PROBABLY NOT. I WOULD HAVE TO SAY THAT. 22 Q. NOW, OTHER THAN DARLENE AND LILLIAN AND YOU, YOU WEREN'T 23 AWARE OF OTHER PEOPLE THAT WOULD CLASH WITH MIKE PERBETSKY 24 LIKE THAT? 25 A. I'M SORRY? MATIVI - CROSS/STUTLER 40 1 Q. OTHER THAN DARLENE -- EXCUSE ME, MS. FITZGERALD, LILLIAN 2 MOLOIAN, AND YOURSELF, YOU DIDN'T OBSERVE OTHER AGENTS 3 CLASHING WITH MIKE PERBETSKY. 4 A. I CAN'T RECALL SPECIFICS, NO, SIR. 5 Q. YOU'RE NOT AWARE OF THAT HAPPENING, MALE OR FEMALE? 6 A. I'M JUST TRYING TO THINK FOR A MINUTE. I'M GOING BACK 7 SINCE 1990 IT'S A LONG TIME, BUT I CAN'T RECALL ANY SPECIFIC 8 INSTANCES, NO. 9 Q. AND YOU MENTIONED HE WAS A FORMER MARINE? 10 A. YES. 11 Q. AND HE WAS THE BOSS? 12 A. YES. 13 Q. AND DID IT BOTHER HIM THAT A JUNIOR SPECIAL AGENT WOULD 14 BE ARGUING WITH HIM AND REFUSING TO BACK DOWN? 15 MR. BEBI: OBJECTION, LACKS FOUNDATION, CALLS FOR 16 SPECULATION. 17 Q. IS THAT YOUR OBSERVATION? 18 THE COURT: OBJECTION SUSTAINED. 19 Q. DID HE SEEM UPSET WHEN MS. FITZGERALD WOULDN'T BACK DOWN? 20 A. I WOULDN'T SAY THE WORD "UPSET" WOULD APPLY, NO. 21 Q. HE TOOK IT IN STRIDE? 22 A. I THINK HE COULD BE EXASPERATED WOULD BE A WORD I MIGHT 23 APPLY. 24 Q. LET'S SHIFT GEARS A LITTLE BIT. YOU MENTIONED HE SEEMED 25 TO FAVOR MIKE ARNOLD? MATIVI - CROSS/STUTLER 41 1 A. YES. 2 Q. BUT HE FAVORED MIKE ARNOLD OVER ALL THE AGENTS, BOTH MALE 3 AND FEMALE? 4 A. YES. 5 Q. THERE HAS BEEN AN ALLEGATION HERE THAT MR. PERBETSKY 6 SPOKE WITH THE INTERVIEWERS BEFORE A NOVEMBER 1996 PROMOTION. 7 ARE YOU AWARE THAT MR. ARNOLD WASN'T EVEN PROMOTED AT THAT 8 TIME? 9 A. I DON'T THINK I HAVE ANY DIRECT KNOWLEDGE OF THAT, NO. 10 Q. BUT HE'S THE ONE THAT YOU SAID MR. PERBETSKY SEEMED TO 11 FAVOR. 12 A. WELL, HE FAVORED HIM AT A TIME WHEN HE COULDN'T HAVE BEEN 13 PROMOTED. HE WAS ONLY A GRADE 7 OR A GRADE 9 AT THE TIME. 14 THE ONLY PROMOTIONS HE WOULD HAVE GOTTEN WERE JUST AUTOMATIC. 15 YOU HAVE TO PUT IT IN CONTEXT FOR ME, I DON'T KNOW EXACTLY 16 WHAT YOU'RE REFERRING TO. 17 Q. I THINK WE'RE GOOD WITH THAT. LET ME MOVE ON. 18 A. OKAY. 19 Q. HE WOULD ALWAYS GO TO LUNCH WITH ARNOLD AND STEVE 20 ALEXANDER? 21 A. YES, MOST OF THE TIME. 22 Q. STEVE ALEXANDER WAS ONE OF THE SUPERVISORS? 23 A. YES. 24 Q. HE DIDN'T ASK YOU TO LUNCH, WOULD HE? 25 A. NO. MATIVI - CROSS/STUTLER 42 1 Q. AND HE DIDN'T ASK THE WOMEN TO LUNCH. 2 A. HE MAY HAVE, I DON'T KNOW. I WASN'T THERE EVERY TIME HE 3 GAVE OUT A LUNCH INVITATION. HE WOULD GO TO TACO BELL ALL THE 4 TIME SO EVERYBODY KIND OF KNEW THAT. 5 Q. IT WAS YOUR IMPRESSION HE DIDN'T ASK THE WOMEN BECAUSE HE 6 WAS MARRIED AND IT WOULDN'T LOOK GOOD? 7 A. DID I TELL YOU THAT WAS MY IMPRESSION? I DON'T RECALL 8 THAT, WAS IT? 9 Q. TURN TO PAGE 80. 10 A. I THINK THAT'S COMMON SENSE, BUT, WHAT PAGE, 80? 11 Q. WE'LL SKIP IT. 12 THE COURT: I'M NOT SURE, MR. STUTLER, YOU REALLY WANT 13 TO GO INTO THIS LINE OF QUESTIONING. 14 MR. STUTLER: WHETHER TACO BELL OR NOT. 15 Q. WHY DON'T WE TALK ABOUT THE TANKER CARS. MS. FITZGERALD 16 TESTIFIED THAT YOU WERE THE GROUP SUPERVISOR WHEN SHE ASKED 17 YOU TO TALK TO MR. PINKAVA, BUT THAT'S NOT TRUE, IS IT? 18 A. NO, I DON'T THINK I WAS ACTING SUPERVISOR AT THE TIME. 19 Q. WHEN THE RAIL CAR INVESTIGATION BEGAN, AFTER THAT INITIAL 20 SEIZURE, MR. PINKAVA ACTUALLY WENT TO YOU AND ASKED YOU TO 21 HELP HER OUT, RIGHT? 22 A. YES. 23 Q. HE ASKED YOU TO WORK WITH HER, SEE WHAT WAS GOING ON WITH 24 THE CASE? 25 A. WHICH CASE ARE YOU REFERRING TO, SIR? MATIVI - CROSS/STUTLER 43 1 Q. T&L ENTERPRISES, THE RAIL CASE. 2 A. THAT AND ANOTHER CASE, YES, KIND OF A COMBINED -- 3 Q. LAZY LEGS. 4 A. IS THAT WHAT IT WAS CALLED? 5 Q. THE FRAUD CASE. 6 A. I DON'T THINK THAT WAS IT. I THINK IT WAS ONE WITH A LOT 7 OF HISPANIC SUSPECTS, A NARCOTICS CASE, IF I'M NOT MISTAKEN. 8 Q. LET ME JUST FOCUS ON THE RAIL CAR CASE. HE ASKED YOU TO 9 WORK WITH HER, SEE HOW IT WAS GOING, SEE WHAT WAS GOING ON 10 WITH IT? 11 A. I BELIEVE SO, YES. 12 Q. AND HE DID THAT BECAUSE HE FELT YOU HAD SOME EXPERTISE IN 13 THE AREA, THAT WAS YOUR UNDERSTANDING? 14 MR. BEBI: OBJECTION, CALLS FOR SPECULATION. 15 THE COURT: IF YOU KNOW. 16 A. WELL, YES, I THINK BECAUSE I WAS GETTING READY TO RETIRE, 17 AND HE KNEW I HAD A LOT OF EXPERIENCE, THAT I COULD MAKE USE 18 OF MY TIME BY TAKING A LOOK AT THESE CASES AND SEEING WHAT 19 COULD BE DONE AND WHAT COULDN'T BE DONE. 20 Q. BUT IT TURNS OUT YOU ACTUALLY KNEW NOTHING ABOUT RAIL 21 CARS? 22 A. YES, THAT'S RIGHT. 23 Q. AND THE REASON THAT YOU DIDN'T IS, GENERALLY, IT'S THE 24 INSPECTORS OVER AT THE OFFICE OF FEDERAL OPERATIONS WHO -- 25 FIELD OPERATIONS WHO INSPECT RAIL CARS COMING IN, CORRECT? MATIVI - CROSS/STUTLER 44 1 A. ARE YOU TALKING ABOUT THE PHYSICAL RAIL CAR ITSELF? 2 Q. SURE. 3 A. WELL, YEAH, OBVIOUSLY, THEY'RE ON THE BORDER, THAT IS WHO 4 WOULD BE INSPECTING THE RAIL CARS. A SPECIAL AGENT IT WOULD 5 NOT BE IN THEIR JOB DESCRIPTION TO INSPECT RAIL CARS, ANY MORE 6 THAN IT'S IN MY DESCRIPTION TO INSPECT A TANKER COMING INTO 7 THE HARBOR. 8 Q. SO THE GENERAL SEQUENCE WAS A TANKER CAR COMES IN, THEY 9 INSPECT IT, IF IT TURNS SOMETHING UP THEN THE OFFICE OF 10 INVESTIGATIONS GETS INVOLVED AND TRIES TO DEVELOP MORE LEADS, 11 ARRESTS, AND INDICTMENTS? 12 A. RIGHT. THERE'S A DIFFERENCE BETWEEN A CRIMINAL 13 INVESTIGATOR AND AN INSPECTOR. I WAS A CRIMINAL INVESTIGATOR. 14 I WASN'T AN INSPECTOR. 15 Q. YOU TRIED TO SET UP A PROFILE ANYWAY FOR INSPECTING RAIL 16 CARS, CORRECT? 17 A. NO, FOR -- THE PROFILE WAS TO, IN THE BEGINNING, WAS 18 GOING TO BE INSPECTING THE RAIL CARS. THE ULTIMATE OBJECTIVE 19 WAS TO MAKE A CRIMINAL CASE AND APPREHEND THE PEOPLE THAT WERE 20 SMUGGLING NARCOTICS ACROSS THE BORDER. 21 Q. SURE. 22 A. IT WASN'T TO INSPECT RAIL CARS, IT WAS TO INSPECT THE 23 ONES THAT WERE SUSPICIOUS, ONES THAT MIGHT FIT INTO A CRIMINAL 24 INVESTIGATION. 25 Q. WHAT YOUR PROFILE WAS WAS TO DETERMINE WHICH CARS YOU MATIVI - CROSS/STUTLER 45 1 SHOULD OPEN UP AND EXAMINE? 2 A. YES. 3 Q. WHICH IS WHAT INSPECTORS DO. 4 A. NO, IT'S NOT. 5 Q. THEY DON'T OPEN AND INSPECT CARS THAT COME IN? 6 A. NOT THOSE KIND OF CARS, RARELY. 7 Q. AND YOU WENT TO MR. PINKAVA ABOUT THAT AND EVENTUALLY HE 8 POOH-POOHED THE IDEA OR HE SAID NO? 9 A. POOH-POOHED, I WOULDN'T SAY. 10 THE COURT: THAT'S A TERM OF ART. 11 THE WITNESS: MY GRANDDAUGHTER USES THAT TERM QUITE A 12 BIT. 13 THE COURT: SHE SHOULD GO TO LAW SCHOOL. 14 THE WITNESS: MAYBE SHE WILL. 15 A. I'M SORRY, KNOWING -- 16 Q. YOU DON'T HAVE TO ANSWER THAT; WE'LL MOVE ON. 17 SO WE TALKED ABOUT JANUARY OF '99 WHERE WE HAD THE 18 FIVE TANKER CARS, RIGHT, AND MS. FITZGERALD CAME TO YOU? 19 A. YEAH, I WAS ALREADY INVOLVED IN THE SITUATION. I RETIRED 20 AT THE END OF JANUARY, SO OBVIOUSLY I WAS INVOLVED WITH IT 21 THEN. 22 Q. HOW MANY DISCUSSIONS DID YOU HAVE WITH MR. PINKAVA 23 REGARDING THE TESTING OF THESE FIVE TANKER CARS? 24 A. THE INVOLVEMENT OF -- ARE YOU TALKING ABOUT THE TESTING 25 OR ARE YOU TALKING ABOUT THE PROFILE? MATIVI - CROSS/STUTLER 46 1 Q. NO, I'M JUST FOCUSING ON THE VERY NARROW INCIDENT IN 2 JANUARY 1999, WHEN YOU WENT TO MR. PINKAVA TO ASK "CAN WE GET 3 THESE TANKER CARS TESTED, THESE FIVE CARS"? 4 A. I ASKED HIM THAT AS PART OF THE WHOLE THING. I THINK IT 5 WAS MAXIMUM CONVERSATION WERE TWO THAT I CAN RECALL. 6 Q. REGARDING THOSE FIVE TANKER CARS THEMSELVES, PUTTING 7 ASIDE THE PROFILES AND ALL THAT, WAS THAT TWO CONVERSATIONS OR 8 JUST ONE? 9 A. WELL, THE SPECIFIC CONTENT OF THOSE TWO CONVERSATIONS I 10 CAN'T RECALL, BUT I WOULD GUESS THAT THEY OVERLAPPED. SINCE 11 THEY WERE TANKER CARS INVOLVED, IT MAKES SENSE I WOULD TALK 12 ABOUT THOSE FIVE PLUS THE PROFILING KIND OF SITUATION. 13 Q. ARE YOU SAYING -- WAS IT ABOUT JANUARY OF '99 WHEN YOU 14 DEVELOPED THIS PROFILE? 15 A. NO, IT WAS PRIOR TO MY RETIREMENT, SO IT WAS SOMEWHERE 16 TOWARDS THE END OF '98, EARLY '99, BECAUSE I RETIRED ON 17 JANUARY 31ST. 18 Q. TO YOU REMEMBER WHETHER YOU WENT IN AND TALKED TO MR. 19 PINKAVA ABOUT THESE FIVE TANKER CARS THAT MS. FITZGERALD TOLD 20 YOU ABOUT? 21 A. SPECIFICALLY, NO. 22 Q. YOU HAVE NO RECOLLECTION OF THAT CONVERSATION? 23 A. NO, I DIDN'T SAY I DIDN'T HAVE RECOLLECTION. YOU ASKED 24 ME WHEN IT WAS, AND I SAID, NO, I DON'T RECALL. I KNOW I CAN 25 GUARANTEE YOU IT WAS BEFORE JANUARY 31ST, 1999 BECAUSE AS OF MATIVI - CROSS/STUTLER 47 1 THAT DATE I RETIRED. 2 Q. OKAY. 3 A. SO THAT I CAN BE SPECIFIC ABOUT. 4 Q. AND YOU WENT IN AND HE SAID NO, FORGET ABOUT IT? 5 A. HE SAID I'M GOING TO CHECK WITH THE FRONT OFFICE. 6 Q. THESE ARE ON THE TANKER CARS? 7 A. MY PROFILE THING PLUS THE FIVE TANKER CARS. 8 Q. HEAR WHAT I'M SAYING HERE, I JUST WANT TO KNOW ABOUT THE 9 MEETING AND THE FIVE TANKER CARS, OKAY, AND DID YOU HAVE ONE 10 OR TWO CONVERSATIONS, HOW MANY CONVERSATIONS DID YOU HAVE JUST 11 ON THOSE FIVE TANKER CARS? 12 A. MAXIMUM TWO, AND THEY WEREN'T VERY LONG. 13 Q. SO MS. FITZGERALD CAME TO YOU AND SAID, "I'VE GOT THESE 14 TANKER CARS, CAN YOU GO TALK TO MR. PINKAVA," RIGHT, THAT 15 HAPPENED? 16 A. I WENT TO TALK TO HIM AS A RESULT OF -- KIND OF A 17 CUMULATIVE THING. THE IDEA OF TRYING TO LOOK AT TANKER CARS 18 KIND OF SIMULTANEOUSLY REACHED -- CAME TOGETHER AT THE SAME 19 TIME AS THE FIVE CARS BEING OUT AT THE RAILROAD YARD, AS I 20 RECALL, RIGHT ABOUT THAT SAME PERIOD OF TIME. 21 Q. YOU DO RECALL TALKING TO MR. PINKAVA ABOUT THE FIVE 22 TANKER CARS? 23 A. YES. 24 Q. AND WHAT DID YOU TELL HIM ABOUT THE FIVE TANKER CARS? 25 A. SPECIFICALLY, YOU'RE GOING TO HAVE TO REFRESH MY MEMORY, MATIVI - CROSS/STUTLER 48 1 IF YOU WANT TO KNOW, IF YOU HAVE SOMETHING IN FRONT OF YOU. I 2 KNOW WE TALKED ABOUT THEM AND BEING OVERWEIGHT. BUT THE 3 SPECIFICS OF THE CONVERSATION, IF YOU HAVE SOMETHING THAT CAN 4 REFRESH MY MEMORY, I WOULD APPRECIATE IT. 5 Q. DID YOU TELL HIM THAT "WE HAVE FIVE TANKER CARS THAT ARE 6 OVERWEIGHT SITTING IN COLTON"? DID YOU TELL HIM THAT? 7 A. I BELIEVE SO. IT RINGS A BELL, BUT IF YOU HAVE SOMETHING 8 I SAID EARLIER. 9 Q. TAKE A LOOK AT PAGE 33. WHY DON'T YOU READ TO YOURSELF 10 LINES 2 TO LINE 7. 11 A. (WITNESS COMPLIES WITH REQUEST.) TO LINE 7? 12 Q. YES. 13 A. OKAY. 14 Q. THAT'S WHAT HAPPENED, YOU TOLD HIM, "WE HAVE FIVE TANKER 15 CARS THAT ARE OVERWEIGHT SITTING IN COLTON," RIGHT? 16 A. YES, THAT'S WHAT I SAID TWO YEARS AGO, AND OBVIOUSLY MY 17 MEMORY WAS FRESHER TWO YEARS AGO THAN TODAY. THAT WOULD MAKE 18 SENSE, SURE. 19 Q. HE SAID TO YOU, "NO, FORGET IT, IT'S NOT GOING TO 20 HAPPEN"? 21 A. THAT WAS HIS ATTITUDE, YEAH. 22 Q. THAT'S WHAT HE SAID TO YOU? 23 A. YES. 24 Q. AND AT THAT POINT YOU REALIZE, "WELL, I KNOW GARY, I'M 25 GOING TO CUT MY LOSSES, I'M NOT GOING TO ARGUE ANYMORE," AND MATIVI - CROSS/STUTLER 49 1 YOU GOT OUT OF THERE. 2 A. I WOULD SAY SO, YES. 3 Q. AND HE NEVER SAID, "NOW, BOB, IF YOU GO OUT THERE AND YOU 4 TEST THOSE, I'M GOING TO FIRE YOU," DID HE EVER TELL YOU THAT? 5 A. NO. 6 Q. THAT WOULD BE KIND OF SILLY BECAUSE YOU WERE GOING TO 7 RETIRE AT THE END OF THE MONTH ANYWAY? 8 A. RIGHT. 9 Q. YOU WOULDN'T GO TO MR. GIANNINI, THE LOCAL COP IN SAN 10 BERNARDINO, AND SAY, "HE SAID HE WAS GOING TO FIRE ME IF I GO 11 OUT TO THAT RAIL YARD." 12 A. ARE YOU SAYING I WOULDN'T HAVE DONE THAT? 13 Q. DID YOU DO THAT, DID YOU TELL MR. GIANINNI ABOUT THAT? 14 A. THERE WOULD HAVE BEEN A LOT OF PEOPLE I WOULD HAVE SAID 15 THAT TO, IF GARY SAID THAT TO ME. 16 Q. DID HE SAY THAT TO YOU? 17 A. NO, BUT YOU ASKED ME IF HE SAID THAT I WOULD GO TO RENADO 18 GIANNINI. 19 Q. THAT WAS PROBABLY UNCLEAR. DID YOU TELL MR. GIANNINI 20 THAT MR. PINKAVA SAID IF YOU GO TO THAT RAIL YARD HE'S GOING 21 TO FIRE YOU? 22 A. DID I SAY THAT TO OFFICER GIANINNI? 23 Q. YES. 24 A. NO. 25 Q. DID YOU EVER SAY TO MS. FITZGERALD, "IF YOU GO OUT THERE MATIVI - CROSS/STUTLER 50 1 HE'S GOING TO FIRE YOU"? 2 A. I DON'T RECALL SAYING THAT. I DON'T KNOW THAT THAT WOULD 3 BE FIRING OFFENSE. 4 Q. IN FACT, HE COULDN'T FIRE YOU. HE WOULD HAVE TO GO 5 THROUGH THE DISCIPLINARY PROCESS OF A REPRIMAND, SUSPENSION, 6 THAT SORT OF THING, RIGHT? 7 A. I WOULD THINK SO. 8 Q. YOUR UNDERSTANDING WAS THAT MR. PINKAVA THOUGHT THAT WHAT 9 MS. FITZGERALD WAS DOING WITH ALL THE RAIL CARS WAS KIND OF A 10 WASTE OF TIME? 11 A. YES. 12 Q. AND HE WAS RIGHT, WOULDN'T YOU AGREE? 13 A. I WOULDN'T AGREE WITH THAT. 14 Q. IT WOULD HAVE BEEN A WASTE OF TIME TO LET YOU AND MS. 15 FITZGERALD GO OUT TO THE RAIL YARD TO TEST THOSE FIVE TANKER 16 CARS, WOULDN'T IT? 17 A. GARY DIDN'T HAVE A CRYSTAL BALL ON HIS DESK, I DON'T KNOW 18 HOW HE WOULD HAVE KNOWN THAT. 19 Q. I'M ASKING YOU WHAT YOU THINK, YOU DON'T THINK THAT WOULD 20 BE A WASTE OF TIME? 21 A. NO. 22 Q. THE FACT IS YOUR PLAN WITH MS. FITZGERALD WAS TO GO OUT 23 THERE, HAVE AN INSPECTOR DO ALL THE WORK, AND JUST HANG AROUND 24 WHILE HE DID THE PRESSURE TESTING AND OPENED UP THE CAR; ISN'T 25 THAT RIGHT? MATIVI - CROSS/STUTLER 51 1 A. HANGING AROUND? I NEVER HUNG AROUND ANYWHERE. 2 Q. TURN TO PAGE 34. 3 A. HANGING AROUND -- 4 THE COURT: THAT'S ANOTHER TERM OF ART. 5 Q. YOU DON'T DO THAT, RIGHT? 6 A. WELL, NO, IT'S LIKE I'VE BEEN IN -- WHEN YOU'RE IN A 7 SITUATION WITH AOD OR SOMEONE SPECIALIZED, YEAH, YOU STAND BY 8 AND LET THEM DO WHAT THEY DO BEST BECAUSE YOU'RE A CRIMINAL 9 INVESTIGATOR NOT A TANKER OPERATOR. I DON'T KNOW ANYTHING 10 ABOUT PRESSURE TESTING. 11 Q. YOU'RE ON PAGE 34? 12 A. OKAY. 13 Q. LINE 2 TO 8. "WHAT WOULD CHECKING THE FIVE TANKER CARS 14 INVOLVE?" ANSWER: "WELL IT WOULD -- IT WAS GOING TO BE VERY 15 SIMPLE, IN MY OPINION. I VOLUNTEERED AND SAID, 'LOOK, I WILL 16 GO OUT WITH DARLENE, WE WILL HAVE THE INSPECTOR GO OUT AND 17 MEET US, AND WE CAN JUST GO THERE AND HANG AROUND WHILE THIS 18 FELLOW OPENS THEM,'" DID I READ THAT RIGHT? 19 A. SURE. 20 MR. BEBI: AGAIN, I WOULD LIKE, FOR THE RULE OF 21 COMPLETENESS, FOR THE REST OF THAT BE READ. 22 THE COURT: AGAIN, I'LL GIVE MR. STUTLER -- HE CAN DO 23 THAT NOW OR YOU CAN DO IT WHEN IT COMES TIME FOR YOUR CROSS. 24 MR. STUTLER: SURE, I'LL READ THE REST. 25 Q. "HE DOES THE PRESSURE TEST," AND THAT REFERS TO THE MATIVI - CROSS/STUTLER 52 1 INSPECTOR, CORRECT? I'M ON LINE 8. 2 A. THE INSPECTOR, ALONG WITH THE RAILROAD INDIVIDUALS. 3 Q. WHEN YOU SAY "HE" YOU'RE REFERRING TO THE INSPECTOR HERE, 4 ON LINE 8? 5 A. IN A GENERIC TERM, IT COULD HAVE BEEN A FEMALE INSPECTOR, 6 TOO. 7 Q. ALL RIGHT, GOOD ENOUGH. "HE DOES THE PRESSURE TEST AND 8 THEN THEY HAVE TO DO SOMETHING ELSE TO SEE IF THEY ARE REALLY, 9 IN FACT, EMPTY, BUT THERE ARE A SERIES OF STEPS THAT WOULD 10 INVOLVE ONLY ONE OR TWO OF US STANDING THERE. IT WOULDN'T 11 HAVE TAKEN SURVEILLANCE OR ANY EXTRA TIME. IT WOULD HAVE BEEN 12 PRETTY SIMPLE." 13 THE COURT: SATISFIED, MR. BEBI? 14 MR. BEBI: YES, YOUR HONOR, I AM. 15 THE COURT: OKAY. 16 Q. SO YOUR PLAN WAS TO GO HANG AROUND AND JUST STAND THERE 17 WHILE THE INSPECTOR DID THE WORK. 18 A. WELL, IF I WAS DOING THE WORK, I WOULD BE DOING WORK THAT 19 I WASN'T AUTHORIZED TO DO. NO, AS A SPECIAL AGENT, MY JOB IS 20 TO SEE IF THERE WAS EVIDENCE OF CRIMINAL VIOLATION UNCOVERED 21 IF THE INSPECTORS OPENED UP THE TANK. I'VE DONE THAT BEFORE 22 WHERE THEY HAVE GONE IN AND OPENLY SEARCHED CRUISE SHIPS. I 23 HUNG AROUND THE CRUISE SHIP WHILE IT WAS BEING SEARCHED UNTIL 24 THEY FOUND EVIDENCE THAT I COULD PROSECUTE OR MAKE AN ARREST. 25 INSPECTORS HAVE NO ABILITY TO MAKE ARRESTS. THEY HAVE NO MATIVI - CROSS/STUTLER 53 1 ABILITY TO DO SPECIAL INVESTIGATIONS. THAT'S WHAT THE SPECIAL 2 AGENT DOES. IF YOU WANT TO TERM IT "HANGING AROUND," YEAH, I 3 WAS HANGING AROUND WAITING. 4 Q. THAT'S WHAT YOU TOLD MR. PINKAVA. 5 A. YEAH, IN THE SENSE IT WASN'T GOING TO COST -- THE OTHER 6 TANKER CAR CASES INVOLVED 24-HOUR SURVEILLANCE NEW YEAR'S DAY, 7 ALL THIS KIND OF THING. I WAS TRYING TO MINIMIZE WHAT I SAW 8 WAS THE OFFICE EXPOSURE AS FAR AS TIMEWISE, AS FAR AS MANPOWER 9 BECAUSE WE WERE A LIMITED OFFICE. WE WERE SMALL. IT WOULDN'T 10 BE A BIG PROBLEM, JUST BE A FEW PEOPLE, MAYBE ONE OR TWO 11 PEOPLE, AND THE INSPECTORS WOULD DO THE WORK. 12 Q. TWO PEOPLE OUT OF YOUR SMALL OFFICE, ONE OF THEM WITH 28 13 YEARS OF EXPERIENCE AND ANOTHER WITH MAYBE 10, AND YOU WERE 14 SURPRISED THAT MR. PINKAVA SAID, "NO, I DON'T WANT YOU HANGING 15 OUT AT THE RAIL YARD, STANDING AROUND WHILE THE INSPECTOR DOES 16 THE WORK. WHY DON'T YOU JUST TURN IT OVER TO THEM AND LET 17 THEM DO THEIR JOB"? 18 A. NO, IT WOULDN'T SURPRISE ME, BECAUSE MR. PINKAVA AND A 19 LOT OF MY OTHER BOSSES HAVE SENT ME TO INDIO TO HANG AROUND 20 FOR FOUR HOURS AND DO NOTHING AND COME BACK. THAT WAS PART OF 21 OUR JOB WAS GOING PLACES AND SPENDING TIME. IT'S -- NOT 22 EVERYTHING THAT YOU DID EVER RESULTED IN A SEIZURE OR ARREST 23 FOR A CRIMINAL CASE. AS A MATTER OF FACT, MOST OF THE TIME 24 YOU DIDN'T GET ANYTHING. 25 Q. DO YOU KNOW HOW MUCH MR. PINKAVA OR -- I SHOULD SAY MATIVI - CROSS/STUTLER 54 1 CUSTOMS SPENT THE LAST TIME THEY POPPED OPEN UP A TANKER CAR 2 AT THE COLTON YARD, THE TIME BEFORE THAT? 3 A. THAT WASN'T SOMETHING I HAD ANYTHING TO DO WITH AS FAR AS 4 MONEY. 5 Q. SO YOU DIDN'T KNOW IT WAS AROUND $10,000? 6 MR. BEBI: OBJECTION, ARGUMENTATIVE, HE SAYS HE 7 DOESN'T KNOW. 8 THE COURT: SUSTAINED. 9 Q. NOW, YOU DIDN'T EVEN KNOW IF THE INSPECTION OF THESE 10 TANKER CARS WERE EVEN PART OF HER INVESTIGATION, CORRECT? 11 A. WELL, IT SEEMED LOGICAL TO ME THAT IT WAS. IT HAD TO 12 HAVE BEEN. 13 Q. BUT YOU DIDN'T KNOW THAT, WHETHER IT WAS? 14 A. SPECIFICALLY, PROBABLY NOT, BUT -- YOU'D HAVE TO REFRESH 15 MY MEMORY BECAUSE IT WAS A TANKER CAR CASE COMING UP FROM 16 MEXICO SO I THINK THEY WERE ALL PART AND PARCEL OF THE SAME 17 CASE. 18 Q. YOU WERE ASSUMING THAT BASED ON WHAT DARLENE WAS TELLING 19 YOU, MS. FITZGERALD, THAT THEY WERE PART OF HER CASE? 20 A. WELL, JUST ASSUMING BECAUSE THEY WEREN'T AIRPLANES, THEY 21 WERE TANKER CARS. SO IF THEY WERE ALL TANKER CARS I FIGURED 22 THEY WERE PART OF THE SAME CASE, THAT'S ALL I CAN THINK OF. 23 Q. YOU TALKED A LITTLE BIT ABOUT THE COST OF IT, THE REAL 24 COST DOESN'T COME IN OPENING THE TANKER CAR, IT COMES WITH 25 TAKING THE STUFF OUT, DOING THE HAZMAT STUFF AND ALL THAT, MATIVI - CROSS/STUTLER 55 1 RIGHT? 2 A. IF THAT'S WHAT YOU SAY. I DON'T HAVE ANY IDEA WHAT IT 3 WOULD COST. 4 Q. AS AN AGENT WITH 28 YEARS OF EXPERIENCE, WHO HAD DONE A 5 PROFILE ON THESE, YOU DON'T HAVE ANY IDEA? 6 A. NO. 7 Q. YOU HAD BEEN THE RAIC BEFORE? 8 A. I'D NEVER BEEN TOLD BY ANYBODY IN MANAGEMENT THAT 9 FINANCIAL CONCERNS WERE TO BE CONSIDERED AT ALL IN ANY 10 INVESTIGATION I EVER CONDUCTED. I DID WIRETAPS WHERE THEY 11 BOUGHT HUNDREDS OF THOUSANDS OF DOLLARS WORTH OF EQUIPMENT. 12 WE WERE TOTALLY SUPPORTED. SO THE LAST THING I WOULD THINK OF 13 IS A FINANCIAL CONSIDERATION, IS IT GOING TO COST TOO MUCH TO 14 FIND OUT IF THESE PEOPLE WERE SMUGGLING DOPE. THAT JUST NEVER 15 CAME INTO MY MIND, AND NEVER WOULD HAVE COME INTO ANYBODY 16 ELSE'S MIND EITHER. 17 Q. YOU TALKED ABOUT RULES AND REGULATIONS AND YOU ALSO 18 MENTIONED YOU WERE AN ACTING RAIC BEFORE, RIGHT? 19 A. YES. 20 Q. WHAT WAS THE BUDGET FOR AN ACTING RAIC? HOW MUCH COULD 21 THE ACTING RAIC SPEND? 22 A. I HAVE NO IDEA. I WAS ONLY THE ACTING RAIC FOR TWO OR 23 THREE WEEKS. MY MAIN JOB WAS TO RUN THE OFFICE. 24 Q. WELL, WAS BUDGET PART OF RUNNING THE OFFICE? 25 A. NOT FOR AN ACTING RAIC, NO. MATIVI - CROSS/STUTLER 56 1 Q. WOULD IT BE ACCURATE TO SAY YOU DON'T REALLY KNOW ALL THE 2 CONSIDERATIONS AND MANAGEMENT ISSUES THAT MR. PINKAVA WAS 3 DEALING WITH AS THE RAIC? 4 A. I WOULD SAY SO, TRUE, YES. 5 Q. YOU DO KNOW THAT TESTING AND DEALING WITH THE RAIL CARS 6 DOES INVOLVE EXPENSE, TIME AND TROUBLE? 7 A. I WOULD ASSUME SO. 8 Q. BY THE WAY, DO YOU BELIEVE THAT MS. FITZGERALD'S TANKER 9 CAR CASE WAS CALLED OPERATION RITE RAIL? 10 A. YES, I BELIEVE SO. 11 Q. TURN TO PAGE 69, PLEASE, SIR. 12 A. PAGE WHAT? 13 Q. 69. I'M GOING TO READ FROM LINES 24 TO PAGE 70, LINE 1. 14 QUESTION: "THE TANKER CAR CASE WAS THAT OPERATION RITE RAIL? 15 ANSWER: "NOT TO MY RECOLLECTION." DID I READ THAT CORRECTLY? 16 A. YEAH, I THINK YOU'RE RIGHT, NOW THAT I THINK OF IT. WHEN 17 YOU SAY RITE RAIL, I WAS THINKING PROBABLY IN TERMS OF THE 18 RAILROAD CAR CASE. I CAN'T SPECIFICALLY REMEMBER THAT MONIKER 19 OR DESIGNATION BEING ATTACHED TO IT. 20 Q. DO YOU RECALL T&L ENTERPRISES AS THE NAME OF HER CASE? 21 A. I CAN'T RECALL THAT NAME SPECIFICALLY, SIR. 22 Q. AND YOU ALSO TALKED ABOUT AN AWARD YOU GOT OUT THERE, BUT 23 YOUR FEELING IS IT WAS FOR A CASE YOU HADN'T WORKED ON, RIGHT? 24 A. WELL, NO, I'VE GOT A LOT OF AWARDS BUT THAT WAS -- IN 25 RESPONSE TO THE DEFENSE ATTORNEY'S QUESTION. MATIVI - CROSS/STUTLER 57 1 Q. AND THAT PARTICULAR CASE YOU GOT AN AWARD YOU DIDN'T KNOW 2 WHAT THE CASE WAS. 3 A. RIGHT. 4 Q. AND YOU FIGURED THAT WAS PROBABLY JUST A MISTAKE. 5 A. I THINK SO, BUT THEN AGAIN, MAYBE I DID SOMETHING AND I 6 JUST FORGOT ABOUT IT. IF THEY WANTED TO SEND ME $100, I 7 WASN'T GOING TO ARGUE ABOUT IT. 8 Q. YOU'RE NOT SUGGESTING YOU GOT THAT AWARD BECAUSE YOU'RE A 9 MAN OR SOMETHING LIKE THAT? I MEAN, I'M NOT SUGGESTING YOU'RE 10 NOT A MAN. 11 A. I THOUGHT OF ABOUT TEN THINGS I COULD SAY. BECAUSE I WAS 12 A MAN, NO. 13 Q. NOW, TOWARDS THE END OF YOUR TIME THERE, YOU FELT THAT 14 MS. FITZGERALD WAS BECOMING OVERLY SENSITIVE? 15 A. IF I'VE SAID THAT, AND YOU WANT TO REFRESH MY MEMORY WITH 16 SOMETHING -- I'M NOT PREPARED TO SAY "OVERLY SENSITIVE." I 17 DON'T KNOW THAT THAT'S -- 18 Q. AS HER FRIEND, DID YOU ADVISE HER THAT NOT EVERYTHING 19 THAT HAPPENS IN LIFE OR ON THE JOB IS BECAUSE SHE'S A WOMAN? 20 A. I THINK WE'VE HAD GENERAL CONVERSATIONS LIKE THAT, BOTH 21 -- WITH EVERYBODY IN THE OFFICE. 22 Q. AND THAT'S YOUR FEELING, THAT'S YOUR BELIEF? 23 A. WHAT'S THAT? 24 Q. THAT'S YOUR BELIEF THAT NOT EVERYTHING HAPPENED IN HER 25 LIFE WAS BECAUSE SHE WAS A WOMAN? MATIVI - REDIRECT 58 1 A. I WOULD SAY SO. I WOULD SAY YES. 2 MR. STUTLER: THANK YOU. 3 THE COURT: MR. BEBI. 4 MR. BEBI: JUST BRIEF REDIRECT, YOUR HONOR. 5 REDIRECT EXAMINATION 6 BY MR. BEBI: 7 Q. MR. MATIVI, LET'S READ THE REST OF YOUR DEPOSITION 8 TESTIMONY FROM PAGE -- I WROTE DOWN 76, BUT IT DOESN'T SOUND 9 RIGHT. I THINK IT WAS 36. 10 A. 36? 11 Q. PAGE 36, YES, PLEASE. 12 MR. STUTLER: THE LINES? 13 MR. BEBI: 4 THROUGH 17. 14 A. OKAY. 15 Q. QUESTION: "BACK TO THE FIVE TANKER CARS, HOW -- I MAY 16 HAVE ASKED YOU ABOUT THIS AND FORGOTTEN, IF I HAVE I 17 APOLOGIZE -- "DID YOU FEEL THAT THE FIVE TANKER CARS THAT WERE 18 SITTING IN THE COLTON RAIL YARD WARRANTED FURTHER 19 INVESTIGATION FROM CUSTOMS?" 20 ANSWER: "YES." 21 QUESTION: "WHY IS THAT?" 22 ANSWER: "WELL, BASED ON MY 28 YEARS OF EXPERIENCE, I 23 REALIZED THAT THERE WAS A POSSIBILITY THAT ONE OR ALL OF THEM 24 CONTAINED SOME CONTRABAND BECAUSE THEY HAD BEEN MANIFESTED AS 25 EMPTY AND THEY WERE WAY OVERWEIGHT, AND HOW YOU MISS BY 20 OR MATIVI - REDIRECT 59 1 30,000 POUNDS AND I JUST FELT THEY NEEDED TO BE LOOKED AT AS A 2 POTENTIAL SMUGGLING VEHICLE." 3 NOW, YOU WERE ASKED SOME QUESTIONS ABOUT COST. AT ANY 4 TIME DURING YOUR 28 YEARS IN LAW ENFORCEMENT, WHEN YOU HAD THE 5 POTENTIAL OF 20,000 TO 30,000 POUNDS OF CONTRABAND, DID ANYONE 6 EVER STOP YOU AND SAY, "HEY, BEFORE WE INVESTIGATE THIS, WE 7 BETTER STOP AND THINK ABOUT THE POTENTIAL COST"? 8 A. NO. 9 Q. YOU WERE ASKED SOME QUESTIONS ABOUT INSPECTORS VERSUS 10 INVESTIGATORS, AND LET'S CLARIFY THAT. IF SOMEONE IN YOUR 11 OFFICE LIKE MS. FITZGERALD HAD AN OPEN INVESTIGATION INVOLVING 12 THE IMPORTATION OF NARCOTICS VIA TANKER CARS, AND THE TANKER 13 CARS IN QUESTION HAD SOMEHOW MADE IT THROUGH THE BORDER AND 14 PAST THE INSPECTORS AT THE INITIAL INSPECTION POINT, BASED 15 UPON YOUR UNDERSTANDING, WAS THAT PART OF YOUR JOB AS AN 16 INVESTIGATOR TO INVESTIGATE TO SEE WHETHER OR NOT THOSE CARS 17 TRULY DID HAVE NARCOTICS IN THEM? 18 A. YES. BASED ON OUR PRIOR EXPERIENCE WITH ONE, YES, I 19 WOULD SAY SO. 20 Q. AND YOU REALIZE THAT, YOU KNOW, THE INSPECTORS ARE 21 HARD-WORKING PEOPLE AND DO A FINE JOB MOST OF THE TIME BUT 22 THEY MAKE MISTAKES, DON'T THEY? 23 A. YES. 24 Q. EVERYBODY MAKES MISTAKES. 25 A. SURE. MATIVI - REDIRECT 60 1 Q. AND IT'S MORE THAN POSSIBLE THAT THEY COULD MISS THESE 2 FIVE TANKER CARS, CORRECT? 3 A. I THINK IT WAS PROBABLE BECAUSE I DON'T THINK THE TANKER 4 CARS, ANY OF THEM, WERE REALLY INSPECTED. 5 Q. EXACTLY. THANK YOU. 6 NOW, AGAIN, IN YOUR YEARS OF EXPERIENCE AS WORKING AS 7 A CUSTOMS AGENT, DID ANYONE EVER TELL YOU YOU CAN'T 8 INVESTIGATE THE POSSIBLE SMUGGLING OF NARCOTICS INTO THE 9 COUNTRY VIA A VEHICLE THAT WOULD ORDINARILY BE INSPECTED BY 10 THE INSPECTORS AT THE BORDER BECAUSE THAT WAS THEIR JOB? 11 A. NO. 12 Q. HAVE YOU EVER HEARD THE USE OF THAT AS A JUSTIFICATION 13 FOR FAILING TO LOOK INTO THE POSSIBILITY OF 20,000 TO 30,000 14 POUNDS OF NARCOTICS BEING SMUGGLED INTO THE COUNTRY? 15 A. NO. 16 MR. BEBI: THAT'S ALL I HAVE, THANK YOU, YOUR HONOR. 17 THE COURT: MR. STENNETT. 18 MR. STENNETT: NOTHING, YOUR HONOR. 19 MR. STUTLER: NOTHING FURTHER, YOUR HONOR. 20 THE COURT: THANK YOU, MR. MATIVI. 21 THE WITNESS: THANK YOU, I APPRECIATE IT. 22 (THE TRIAL CONTINUED.) 23 24 25 61 1 C E R T I F I C A T E 2 3 I, GAYLE WAKEFIELD, CERTIFY THAT I AM A DULY QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED 4 STATES DISTRICT COURT, THAT THE FOREGOING IS A TRUE AND ACCURATE TRANSCRIPT OF THE PROCEEDINGS AS TAKEN BY ME IN THE 5 ABOVE-ENTITLED MATTER ON MARCH 10, 2005; AND THAT THE FORMAT USED COMPLIES WITH THE RULES AND REQUIREMENTS OF THE UNITED 6 STATES JUDICIAL CONFERENCE. 7 8 DATED:_______________ __________________________ GAYLE WAKEFIELD, RPR, CRR 9 OFFICIAL COURT REPORTER 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25