IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA 2 3 DARLENE FITZGERALD-CATALAN, ) SANDRA G. NUNN, NO. 01CV0470-RBB 4 PLAINTIFFS, 5 VS. SAN DIEGO, CALIFORNIA MARCH 3, 2005 6 TOM RIDGE, SECRETARY OF THE 1:00 P.M. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, 7 8 DEFENDANTS. * * * * * * * * * * * * 9 TRANSCRIPT OF TRIAL 10 VOLUME 3 BEFORE THE HONORABLE ROGER T. BENITEZ 11 UNITED STATES DISTRICT JUDGE 12 APPEARANCES: MS. FITZGERALD: MR. GASTONE BEBI, ESQ. 13 8415 LA MESA BLVD. SUITE 5 14 LA MESA, CALIFORNIA 9291941 15 MS. NUNN: STENNETT & STENNETT MR. JOHN P. STENNETT, ESQ. 16 501 W. BROADWAY SUITE 820 17 SAN DIEGO, CALIFORNIA 92101 (619) 544-6888 18 FOR THE GOVERNMENT: CAROL LAM, U.S. ATTORNEY 19 BY: MS. BETH CLUKEY, ESQ. BY: MR. TIMOTHY C. STUTLER, 20 ESQ. 880 FRONT STREET 21 6TH FLOOR SAN DIEGO, CALIFORNIA 92101 22 OFFICIAL REPORTER: MELISSA A. PIERSON, CSR, RPR 23 940 FRONT STREET, BOX 18 SAN DIEGO, CALIFORNIA 92101 24 (619) 702-7508 IL CSR NO. 084-003138 25 CA CSR NO. 12499 1 1 INDEX _____ 2 WITNESS: GARY PINKAVA (HOSTILE WITNESS) 3 CROSS EXAMINATION BY MR. BEBI 3 4 JUDGE YVETTE PALAZUELLOS 5 DIRECT EXAMINATION BY MR. BEBI: 10 CROSS EXAMINATION BY MS. CLUKEY: 30 6 REDIRECT EXAMINATION BY MR. BEBI: 45 7 GARY PINKAVA 8 CROSS EXAMINATION BY MR. STENNETT: 51 REDIRECT EXAMINATION BY MR. STUTLER: 54 9 RECROSS EXAMINATION BY MR. BEBI: 142 REDIRECT EXAMINATION BY MR. STUTLER: 157 10 11 EXHIBITS ID ADM ________ __ ___ 12 EXHIBIT W 130 130 13 EXHIBIT BD 133 133 EXHIBIT AA 135 135 14 PLAINTIFF'S NO. 6 3 136 15 16 2:04P 17 18 19 20 21 22 23 24 25 2 1 THE COURT: GO AHEAD, MR. BEBI. 2 MR. BEBI: THANK YOU, YOUR HONOR. 3 GARY PINKAVA 4 CALLED AS A HOSTILE WITNESS HEREIN, HAVING BEEN FIRST 5 DULY SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS: 6 CON'T. CROSS EXAMINATION 7 BY MR. BEBI 8 Q MR. PINKAVA, I BELIEVE WHEN WE BROKE FOR OUR 9 LUNCH BREAK, I HAD ASKED YOU WHETHER OR NOT YOU HAD 10 EVER INITIATED AN INVESTIGATION OR ATTEMPTED TO 11 INITIATE AN INVESTIGATION TO INTERNAL AFFAIRS 12 CONCERNING THE USE OF TECS INFORMATION BY MS. NUNN AND 13 MS. FITZGERALD ON A TANKER CAR CASE, AND YOUR ANSWER 14 WAS NO, IS THAT CORRECT? 15 A CORRECT. AS FAR AS INVESTIGATION, NO, I DID 16 NOT. 17 (PLAINTIFF'S EXHIBIT NO. 6 18 MARKED FOR IDENTIFICATION.) 19 BY MR. BEBI: 20 Q I AM GOING TO SHOW YOU WHAT I MARKED AS 21 EXHIBIT 6. LET ME ASK YOU THE QUESTION THIS WAY: DID 22 YOU REQUEST THAT INTERNAL AFFAIRS -- WELL, STRIKE THAT. 23 WHY DON'T WE JUST SHOW YOU WHAT WE MARKED AS 24 EXHIBIT 6. EXHIBIT 6, MARKED FOR IDENTIFICATION, AND 25 THE -- YOU CAN LOOK AT THE WHOLE EXHIBIT. BUT THE PART 3 1 I WANT TO QUESTION YOU ABOUT IS THE LAST PAGE. 2:05P 2 A OKAY. 3 Q DO YOU RECOGNIZE THAT DOCUMENT? 4 A I RECOGNIZE MY SIGNATURE. 5 Q OKAY. AND THAT'S A MEMORANDUM FROM THE 6 RAC/RIVERSIDE RAC, CORRECT? 7 A IT'S FROM MY OFFICE TO THE SPECIAL AGENT IN 8 CHARGE. 9 Q AND YOU SIGNED IT? 10 A YES, SIR. 11 Q GIVE THE DOCUMENT BACK TO ME FOR A SECOND, 12 PLEASE. THANK YOU. 13 NOW, THE SPECIAL AGENT IN CHARGE AT THIS TIME, 14 THE PERSON YOU WERE SENDING THIS MEMORANDUM TO WAS JOHN 15 HENSLEY, IS THAT CORRECT? 16 A I DIDN'T MAKE NOTE OF THE DATE, SIR. 17 Q JUNE 15, '99, WOULD THAT BE MR. HENSLEY'S 18 TENURE? 19 A I BELIEVE SO. 2:06P 20 Q AND YOU ARE ADVISING HIM THAT SPECIAL AGENT 21 SANDRA NUNN HAD QUERIED, AND YOU GIVE AN ROI NUMBER AND 22 A CASE FILE NUMBER, IS THAT CORRECT? 23 A I JUST LOOKED AT IT BRIEFLY, BUT, YEAH, IT 24 LOOKED LIKE IT WAS REFERENCING IT, YES. 25 Q AND YOU TOLD MR. HENSLEY THAT THIS IS AN OPEN 4 1 CASE ASSIGNED TO AGENT DARLENE CATALAN? 2 THE COURT: MR. BEBI, I AM NOT SURE I HAVE A 3 COPY OF THAT DOCUMENT. DO YOU HAVE AN EXTRA ONE, BY 4 ANY CHANCE, THAT I CAN LOOK AT? 5 MR. BEBI: I BELIEVE WE DO, YOUR HONOR. 6 MR. STENETT: YOUR HONOR, EXHIBIT 6, AND IT 7 SHOULD BE IN THE BINDER OF PLAINTIFFS -- 8 THE COURT: WELL, LET ME MAKE SURE WE ARE ALL 9 ON THE SAME PAGE. I HAVE NUNN'S EXHIBITS. 2:07P 10 MR. BEBI: YES. 11 THE COURT: IS THAT WHERE I AM GOING TO FIND 12 IT? 13 MR. BEBI: YES. 14 THE COURT: OKAY. GREAT. THANK YOU. 15 MR. BEBI: THANK YOU, YOUR HONOR. 16 THE COURT: OKAY. 17 BY MR. BEBI: 18 Q MR. PINKAVA, IN ALL FAIRNESS, DO YOU HAVE A 19 COPY OF THE DOCUMENT IN FRONT OF YOU? 20 A YES, SIR. 21 Q OKAY. DO YOU SEE THERE IS A BLOCKED OUT AREA 22 ON THE DOCUMENT? 23 A CORRECT. 24 Q OKAY. THE SENTENCE AFTER THAT INDICATES THAT 25 THE CASE WAS ASSIGNED TO MS. DARLENE CATALAN, IS THAT 5 1 CORRECT? 2 A THE CASE NUMBER THAT WAS QUERIED, IT APPEARS, 3 YES. 4 Q AS YOU SIT HERE TODAY, DO YOU RECALL IF THAT 5 WAS A RAIL CAR CASE? 6 A WELL, THE SUBJECT LINE IS NOT BLOCKED OUT VERY 7 GOOD SO, YEAH, I DO RECOGNIZE THE CASE NUMBER. 8 Q OKAY. NOW, BEFORE YOU SENT THIS MEMO TO MR. 9 HENSLEY, HAD YOU SPOKEN TO MS. FITZGERALD AS TO WHY MS. 10 NUNN MAY BE QUERYING THE TECS SYSTEM ON A CASE THAT MS. 11 FITZGERALD WAS WORKING? 2:09P 12 A THIS MEMO IS BASICALLY A TRANSMITTAL WHERE MR. 13 COOPER HAD HAD CONVERSATIONS RELATIVE TO THIS, AND I AM 14 MERELY TRANSMITTING IT UNDER MY NAME BECAUSE I AM THE 15 HEAD OF THE OFFICE. 16 Q OKAY. WELL, LET'S TRY MY QUESTION. DID YOU 17 PERSONALLY TALK TO MS. FITZGERALD AND SAY, "WHY IS 18 MS. NUNN --" 19 A I DON'T RECALL SPEAKING WITH HER. 20 Q AND I TAKE IT IT WAS MR. COOPER WHO BROUGHT 21 THIS INCIDENT TO YOUR ATTENTION, IS THAT CORRECT? 22 A FROM READING THE MEMO, I WOULD SAY, YES. 23 Q DID YOU EVER TELL ANYONE, AS THE SPECIAL AGENT 24 IN CHARGE OFFICE, THAT AGENTS NUNN AND CATALAN WERE 25 INVOLVED IN A LEGAL ACTION TOGETHER, AND THAT IT WAS 6 1 YOUR CONCERN THAT AGENT NUNN MAY BE MISUSING CASE 2 INFORMATION, TECS INFORMATION FOR THAT PURPOSE? 2:10P 3 A I DON'T RECALL THAT. 4 Q DID YOU HAVE THAT SUSPICION? 5 A NOT THAT I CAN REMEMBER. 6 Q LET'S MOVE ON TO ANOTHER AREA. 7 AT SOME POINT IN TIME, MS. FITZGERALD 8 RESIGNED, IS THAT CORRECT? 9 A THAT'S CORRECT. 10 Q AND AFTER HER RESIGNATION, WERE YOU EVER 11 CONTACTED BY ANYONE FOR A JOB REFERENCE CONCERNING 12 MS. FITZGERALD? 13 A I HAVE A VERY LIMITED RECOLLECTION OF SOMEONE 14 WHO HAD CALLED INTO THE OFFICE. 2:11P 15 Q DO YOU HAVE A RECOLLECTION AS TO WHO THAT 16 SOMEONE WAS? 17 A BY NAME, NO. THE METHOD THAT THE REFERENCE 18 WAS BEING REQUESTED SEEMED SUSPICIOUS TO ME. 19 Q AND DOES THE NAME "DOCUMENT REFERENCE CHECK" 20 RING ANY BELLS FOR YOU? 21 A ONLY FROM REVIEWING DOCUMENTS RECENTLY. 22 Q DID YOU EVER RETURN THE PHONE CALL FOR 23 "DOCUMENT REFERENCE CHECK?" 24 A NO, I DID NOT. 25 Q WERE YOU CONTACTED BY ANY OTHER PERSPECTIVE 7 1 OR -- SOMEONE REPRESENTING THEMSELVES TO BE A 2 PERSPECTIVE EMPLOYER FOR DARLENE FITZGERALD? 3 A NOT THAT I RECALL. 4 Q DID YOU EVER SPEAK TO ANYONE OR ANSWER IN 5 WRITING ANY REQUESTS FOR JOB RECOMMENDATIONS OR 6 INFORMATION CONCERNING DARLENE FITZGERALD? 7 A NOT TO MY RECOLLECTION. 8 Q DID YOU IGNORE ANY WRITTEN REQUEST FOR SUCH 9 INFORMATION? 10 A NOT TO MY RECOLLECTION. 11 Q DID ANYONE EVER CRITICIZE YOU FOR RETALIATING 12 AGAINST MS. FITZGERALD DURING THE TIME THAT SHE WORKED 13 FOR YOU FOR HER PROTECTED EEO ACTIVITY? 2:12P 14 A IF YOU CAN DEFINE CRITICIZE? I MEAN, I WOULD 15 SAY NO. 16 Q OKAY. DID ANYONE EVER ASK YOU TO CHANGE ANY 17 OF YOUR MANAGEMENT TECHNIQUES, FOR LACK OF A BETTER 18 WORD, AS A RESULT OF MS. FITZGERALD'S EEO ACTIVITY? 19 A NO. 20 Q WHAT'S YOUR CURRENT POSITION WITH CUSTOMS? 21 A I AM CURRENTLY EMPLOYED BY THE IMMIGRATION AND 22 CUSTOMS ENFORCEMENT. CUSTOMS SERVICE WAS DISSOLVED 23 UNDER THE DEPARTMENT OF HOMELAND RE-ORGANIZATION. 24 Q YEAH, YOU ARE RIGHT. I AM SORRY. BUT WHAT'S 25 YOUR CURRENT POSITION WITH THAT ORGANIZATION? 8 1 A ASSISTANT SPECIAL AGENT IN CHARGE. 2 Q OKAY. SO, YOU HAVE BEEN PROMOTED SINCE YOUR 3 DAYS IN THE RAC/RIVERSIDE OFFICE, IS THAT CORRECT? 4 A THAT'S CORRECT. 5 MR. BEBI: I HAVE NOTHING FURTHER. THANK YOU, 6 YOUR HONOR. 7 THE COURT: ALL RIGHT. THANK YOU. MR. 8 STUTLER? 9 MR. STUTLER: YES, YOUR HONOR. I UNDERSTAND 10 THERE IS A POSSIBLE WITNESS CHANGE. 2:13P 11 MR. BEBI: YES, YOUR HONOR. WE HAVE JUDGE 12 PALAZUELOS HERE AND SHE ASKED THAT SHE BE GIVEN THE 13 COURTESY OF GOING ON AS SOON AS WE FINISHED WITH MR. 14 PINKAVA. 15 THE COURT: THAT SOUNDS REASONABLE. OKAY. 16 YOU CAN STEP DOWN, SIR. YOU CAN BE RECALLED. 17 (WITNESS EXCUSED.) 2:14P 18 MR. BEBI: SHALL I GO INQUIRE, YOUR HONOR? 19 THE COURT: YES, PLEASE. 20 MR. BEBI: OKAY. 21 JUROR: YOUR HONOR, WE ARE NOT WORKING 22 TOMORROW? 23 THE COURT: YES. THAT'S CORRECT. 24 (WITNESS SWORN.) 25 MADAM CLERK: STATE YOUR FULL NAME FOR THE 9 1 RECORD, SPELLING YOUR FIRST AND LAST NAME. 2 THE WITNESS: YVETTE M. PALAZUELOS, 3 Y-V-E-T-T-E, PALAZUELOS, P-A-L-A-Z-U-E-L-O-S. 2:16P 4 THE COURT: GOOD AFTERNOON. 5 THE WITNESS: THANK YOU. GOOD AFTERNOON. 6 MR. BEBI: SORRY FOR STEPPING ON YOUR LINE, 7 JUDGE. 8 THE COURT: NO, THAT'S OKAY. 9 YVETTE PALAZUELOS 10 CALLED AS A WITNESS HEREIN, HAVING BEEN FIRST DULY 11 SWORN, WAS EXAMINED AND TESTIFIED AS FOLLOWS: 12 DIRECT EXAMINATION 13 BY MR. BEBI 14 Q GOOD AFTERNOON, MS. PALAZUELOS. PLEASE STATE 15 YOUR OCCUPATION FOR US. 16 A I AM A SUPERIOR COURT JUDGE IN LOS ANGELES. 17 Q HOW LONG HAVE YOU BEEN A SUPERIOR COURT JUDGE 18 IN LOS ANGELES? 19 A SINCE JUNE OF 2000. 20 Q BEFORE YOU WERE A SUPERIOR COURT JUDGE IN LOS 21 ANGELES WERE YOU EMPLOYED? 22 A YES. 23 Q AND WHAT POSITION DID YOU HOLD? 24 A I WAS A FEDERAL PROSECUTOR IN LOS ANGELES. 25 Q WERE YOU A MEMBER OF THE US ATTORNEY'S OFFICE 10 1 IN THE LOS ANGELES AREA? 2 A YES. THE CENTRAL DISTRICT OF CALIFORNIA. 3 Q HOW LONG DID YOU HOLD THAT POSITION? 4 A TEN YEARS. 5 Q AND BEFORE YOU BECAME A US ATTORNEY, IS THAT 6 AN ACRONYM FOR WHAT YOU WERE? 7 A ASSISTANT US ATTORNEY. 8 Q AN AUSA? 9 A CORRECT. 10 Q BEFORE YOU WERE AN AUSA, COULD YOU BRIEFLY 11 TELL US WHAT YOUR JOB HISTORY WAS? 2:17P 12 A BEFORE I WAS AN AUSA, I WORKED IN A PRIVATE 13 LAW FIRM IN LOS ANGELES, AND I WORKED IN CIVIL 14 LITIGATION AND I DID THAT FOR THREE YEARS. THAT WAS 15 RIGHT OUT OF LAW SCHOOL. 16 Q WHERE DID YOU GO TO LAW SCHOOL? 17 A COLOMBIA UNIVERSITY IN NEW YORK. 18 Q WHAT YEAR DID YOU GRADUATE FROM THAT -- 19 A 1987. 20 Q I AM GOING TO ASK YOU, NOW, SOME QUESTIONS 21 ABOUT A TANKER CAR CASE BACK IN '98 AND '99. 22 FIRST OF ALL, LET ME ASK YOU, DO YOU KNOW THE 23 PLAINTIFF IN THIS CASE, DARLENE FITZGERALD? 24 A YES, I DO. 25 Q HOW DO YOU KNOW HER? 11 1 A SHE WAS THE CASE AGENT ON THE TANKER CAR CASE. 2 Q HAD YOU KNOWN HER BEFORE YOU WORKED WITH HER 3 ON THE TANKER CAR CASE? 4 A I MAY HAVE MET HER IN PASSING, BUT NOT REALLY. 5 Q HOW DID YOU GET INVOLVED IN THE TANKER CAR 6 CASE, IF YOU RECALL? 7 A I CAN'T REMEMBER EXACTLY, BUT I BELIEVE THAT 8 DARLENE HAD CALLED ME BECAUSE SHE NEEDED ADVICE ON A 9 BORDER SEARCH. 2:18P 10 Q AND CAN YOU CLARIFY THAT? DO YOU RECALL 11 ANYTHING MORE ABOUT THAT CONVERSATION? 12 A THERE WAS A TANKER CAR THAT WAS CROSSING THE 13 BORDER, THE MEXICAN BORDER INTO THE UNITED STATES, AND 14 THE TANKER CAR HAD MOVED, I BELIEVE, TO COLTON, 15 CALIFORNIA, AND THE QUESTION WAS WHETHER A SEARCH COULD 16 BE DONE WITHOUT A SEARCH WARRANT BECAUSE IT'S A BORDER 17 SEARCH. BECAUSE BORDER SEARCHES ARE AN EXCEPTION TO 18 THE WARRANT REQUIREMENT. SO, YOU DON'T NEED A WARRANT 19 IF IT'S A BORDER SEARCH. 20 Q BASICALLY, SHE WAS ASKING YOU FOR A LEGAL 21 OPINION, AS PART OF HER JOB, CORRECT? 22 A CORRECT. 23 Q DID YOU SUBSEQUENTLY LEARN THAT THE TANKER CAR 24 WAS SEARCHED? 25 A YES. 12 1 Q DID YOU ALSO SUBSEQUENTLY LEARN THAT THERE WAS 2 APPROXIMATELY 8,000 POUNDS OF MARIJUANA AND ABOUT 34 3 KILOS OF PURE COCAINE IN THAT TANKER CAR? 4 A YES. 5 Q NOW, AT SOME POINT IN TIME, WERE YOU ASSIGNED, 6 AS THE AUSA, TO THIS CASE? 7 A YES. 8 Q AND WHAT CASE WAS IT? 2:19P 9 A THE CASE NAME OR -- 10 Q WELL, JUST GENERALLY, WHAT TYPE OF CASE WAS IT 11 WHEN YOU WERE FIRST ASSIGNED TO IT? 12 A IT WAS AN INVESTIGATION. A NARCOTICS 13 INVESTIGATION. 14 Q OKAY. AND DURING THE COURSE OF THE NARCOTICS 15 INVESTIGATION, DID YOU HAVE AN UNDERSTANDING AS TO WHO 16 WAS THE CASE AGENT FOR THAT NARCOTICS INVESTIGATION? 17 A YES. 18 Q WHO WAS THAT? 19 A DARLENE FITZGERALD. 20 Q DURING THE INVESTIGATION, AT SOME POINT IN 21 TIME, WAS A COOPERATING WITNESS IDENTIFIED? 22 A YES. 23 Q OKAY. DO YOU RECALL -- STRIKE THAT. 24 NOW, THE COOPERATING WITNESS, AS I UNDERSTAND 25 IT, I DON'T PRACTICE IN THE CRIMINAL LAW AREA, THERE 13 1 ARE COOPERATING WITNESSES WHO WILL -- WHO ARE RELIABLE, 2 AND COOPERATING WITNESSES WHO MAY NOT BE SO RELIABLE. 3 WAS ANYTHING DONE TO DETERMINE WHETHER THIS WITNESS WAS 4 A RELIABLE COOPERATING WITNESS? 5 A YES. ALL COOPERATING WITNESSES MUST BE WHAT 6 WE CALL CORROBORATED BY OTHER EVIDENCE, OTHERWISE, THEY 7 ARE UNUSABLE. 2:20P 8 Q DID YOU FORM AN OPINION EARLY ON AS TO WHETHER 9 OR NOT THIS COOPERATING WITNESS WAS RELIABLE OR 10 UNRELIABLE? 11 A I DON'T KNOW ABOUT EARLY ON. WE HAD TO 12 CORROBORATE HIM. SO, WHAT WE WOULD DO IS DEBRIEF THE 13 CORROBORATOR AND THEN FOLLOW-UP WITH HIS INFORMATION TO 14 FIND OUT IF IT WAS ACCURATE. AND IT WAS AT THAT POINT 15 THAT YOU WOULD MAKE A DETERMINATION WHETHER HE WAS A 16 RELIABLE INFORMANT. 17 Q WHEN YOU SAY DEBRIEF, YOU ARE BASICALLY 18 TALKING ABOUT HAVING CONVERSATIONS WITH THE PERSON? 19 A INTERVIEW. 20 Q INTERVIEW? 21 A A DEBRIEF IS JUST AN INTERVIEW. 22 Q DURING THESE INTERVIEWS, DID HE REVEAL 23 INFORMATION SHOWING A PRETTY SOPHISTICATED CRIMINAL 24 ENTERPRISE? 25 A YES. 14 1 Q AND WHAT WAS THE GOAL OF THIS CRIMINAL 2 ENTERPRISE, AS YOU UNDERSTOOD IT, FROM THE INTERVIEWS 3 WITH THE COOPERATING WITNESS? 4 A THE GOALS OF CRIMINAL ORGANIZATIONS? 5 Q YES. 6 A WAS TO IMPORT LARGE AMOUNTS OF NARCOTICS INTO 7 THE UNITED STATES. 8 Q WHAT METHOD WERE THEY USING TO DO THAT? 9 A WELL, WE KNEW OF ONE METHOD AND THAT WAS TO 10 USE RAILROAD CARS TO BRING IN THE NARCOTICS. 2:21P 11 Q WAS THERE AN INDICATION THAT ADDITIONAL 12 RAILROAD CARS LADEN WITH NARCOTICS WOULD BE COMING 13 ACROSS THE BORDER AS PART OF THIS CRIMINAL ENTERPRISE? 14 A IN THE PAST, IT HAD BEEN USED, AND IT WOULD 15 CONTINUE. 16 Q THAT WAS THE INFORMATION THAT YOUR COOPERATING 17 WITNESS WAS SUPPLYING TO YOU, CORRECT? 18 A YES. 19 Q OKAY. NOW, AT SOME POINT IN TIME, THERE WAS A 20 SEIZURE, DO YOU RECALL THAT? 21 A YES. 22 Q AND WERE YOU NOTIFIED OF THAT BY 23 MS. FITZGERALD, CORRECT? 24 A YES. 25 Q AND THEN, THE COOPERATING WITNESS WAS SECURED, 15 1 CORRECT? 2 A HE WAS ARRESTED. HE WAS IN CUSTODY. 3 Q OKAY. AND ALSO, AT SOME POINT IN TIME, THERE 4 WAS A CONTROLLED DELIVERY THAT WAS GOING TO BE 5 ATTEMPTED, DO YOU RECALL THAT? 6 A RIGHT. 7 Q DO YOU RECALL WHETHER OR NOT THE COOPERATING 8 WITNESS WAS ARRESTED AND DEBRIEFED IN BETWEEN THE TIME 9 OF THE SEIZURE AND THE TIME OF THE CONTROLLED DELIVERY? 10 A YES, HE WAS CONTINUALLY DEBRIEFED. 11 INTERVIEWED. 12 Q AND WHO WOULD BE THE ONE INTERVIEWING THE 13 COOPERATING WITNESS? 2:22P 14 A IT WOULD BE ME AND DARLENE. 15 Q AT THIS POINT IN TIME, HAD YOU MET A GENTLEMAN 16 NAMED GARY PINKAVA? 17 A AT WHAT POINT? 18 Q IN THE TIME BETWEEN THE SEIZURE AND THE 19 CONTROLLED DELIVERY. 20 A I MAY HAVE MET HIM. I DON'T RECALL. I MET 21 HIM AT THAT PARTICULAR POINT IN TIME. 22 Q DO YOU RECALL WHETHER OR NOT ANYONE, DURING 23 THIS PARTICULAR POINT IN TIME, HAD ACCESS TO THE 24 COOPERATING WITNESS, OTHER THAN YOU AND MS. FITZGERALD? 25 A NO. WE WOULD NOT GIVE ACCESS TO ANYBODY. HE 16 1 WAS IN DANGER HIMSELF OF BEING HURT. 2 Q OKAY. IT WAS A PRETTY SENSITIVE SITUATION, 3 WOULD YOU AGREE? 4 A VERY SENSITIVE. 5 Q NOW, GIVEN THE INFORMATION THAT THE 6 COOPERATING WITNESS WAS PROVIDING YOU, DID YOU AND 7 MS. FITZGERALD COME UP WITH SOME STRATEGY AND SOME 8 GOALS RELATIVE TO THIS INVESTIGATION? 9 A YES. 10 Q AND WHAT WAS THAT? 11 A WELL, THERE IS A LARGE BIG GOAL, AND THEN, 12 THERE IS SORT OF SUB-GOALS IN BETWEEN. BUT THE MAIN 13 GOAL WAS -- OF THE INVESTIGATION, WAS TO DISMANTLE THE 14 ORGANIZATION. 2:23P 15 Q I HAVE USED THE STEP LADDER ILLUSTRATION 16 BEFORE. YOU TRIED TO DO ACTIVITY TO ARREST PEOPLE THAT 17 WOULD, IN TURN, HOPEFULLY LEAD YOU TO OTHER PEOPLE AND 18 YOU WORK YOUR WAY UP UNTIL YOU GET THE REAL SINISTER 19 PEOPLE WHO ARE THE BRAINS OF THE ORGANIZATION, IS THAT 20 ACCURATE? 21 A THAT'S ONE WAY TO DO IT. 22 Q WAS THAT ONE OF THE GOALS THAT YOU HAD IN THIS 23 PARTICULAR INVESTIGATION? 24 A YES, THAT WAS ONE OF THE GOALS. 25 Q DOES THAT TYPE OF -- STRIKE THAT. 17 1 IS THAT TYPE OF INVESTIGATION NORMALLY LONG 2 TERM OR SHORT TERM? 3 A LONG TERM. 4 Q AND WHAT DO YOU MEAN BY LONG TERM? 5 A WELL, YOU START OFF OF AN INVESTIGATION AND 6 YOU HAVE TO DEVELOP A STRATEGY ON HOW YOU ARE GOING TO 7 INFILTRATE THE ORGANIZATION. AND THE AGENCY, OR 8 AGENCIES, WORKS WITH THE US ATTORNEY'S OFFICE, DEVELOPS 9 THE STRATEGY AND FIGURES OUT WHAT METHODS THEY ARE 10 GOING TO USE. ARE THEY GOING TO USE AN INFORMANT? ARE 11 THEY GOING TO TRY TO USE A WIRETAP? ARE THEY GOING TO 12 USE SUBPOENAS? ARE THEY GOING TO USE STRICTLY 13 SURVEILLANCE? THERE ARE ALL TYPES OF TECHNIQUES. 14 SO, YOU DEVELOP A STRATEGY, DETERMINE WHO IS 15 GOING TO IMPLEMENT IT, THE AGENTS, AGENCIES OR 16 IMPLEMENT THE TECHNIQUES, WHICH AGENCIES ARE GOING TO 17 DO THAT AND YOU TRY TO ESTABLISH A TIME FRAME. HOW 18 LONG WILL IT TAKE US TO DO THIS? AND THEN, YOU HAVE TO 19 MARSHAL YOUR EVIDENCE, AND THEN INDICT THE CASE, AND 20 THEN AFTER YOU INDICT IT IN FRONT OF THE GRAND JURY, 21 THEN YOU HAVE TO TRY THE CASE. AND THEN AFTER IT'S 22 TRIED, THEN YOU HAVE TO DEFEND YOUR CONVICTION, 23 HOPEFULLY, THAT YOU GET. 2:25P 24 A CASE CAN START OR -- IT SHOULD START FROM 25 THE INVESTIGATIVE STAGE ALL THE WAY THROUGH APPEAL. 18 1 SO, IT CAN LAST YEARS. 2 Q WITHOUT GOING INTO THE NITTY GRITTY OF 3 IDENTIFYING ANY OF THE PARTIES INVOLVED, FROM YOUR 4 DEBRIEFING OF THE COOPERATING WITNESS, WERE YOU UNDER 5 THE IMPRESSION THAT THERE WERE SEVERAL CRIMINAL 6 ENTERPRISES INVOLVED IN THIS PARTICULAR TRANSACTION? 7 FOR EXAMPLE, ONE FAMILY MAY BE PROVIDING THE DRUGS. 8 ANOTHER FAMILY MAY BE HANDLING THE TRANSPORTATION, THAT 9 TYPE OF THING? 10 A CORRECT. 11 MS. CLUKEY: I AM GOING TO OBJECT, AT THIS 12 POINT, JUST SOME CLARIFICATION. WHEN YOU SAY 13 "DEBRIEFING," DID YOU HEAR THE COOPERATING WITNESS OR 14 WAS THIS BEING TOLD TO YOU? I GUESS I AM OBJECTING ON 15 THE GROUNDS OF HEARSAY. 16 THE COURT: SUSTAINED. 17 BY MR. BEBI: 18 Q WELL, LET'S LAY THE FOUNDATION. YOUR 19 INTERVIEWS WITH -- THE DEBRIEFING, YOUR INTERVIEWS WITH 20 THE COOPERATING WITNESS, I BELIEVE YOU TOLD US THAT 21 ONLY YOU AND MS. FITZGERALD HAD ACCESS TO HIM DURING 22 THIS TIME FRAME, IS THAT CORRECT? 2:26P 23 A CORRECT. 24 Q AND WERE YOU PRESENT DURING AND THROUGHOUT ALL 25 OF THE DEBRIEFING, AS BEST YOU CAN RECALL? 19 1 A AS FAR AS I CAN RECALL. I DON'T KNOW IF 2 DARLENE HAD ADDITIONAL INTERVIEWS WITH HIM. BUT, 3 WHENEVER I INTERVIEWED HIM, DARLENE WAS ALWAYS THERE 4 BECAUSE I WOULD NEVER BE ALLOWED TO INTERVIEW A PERSON 5 BY MYSELF. 6 Q AND YOU ARE TESTIFYING, BASICALLY, FROM YOUR 7 RECOLLECTION OF THE INFORMATION PROVIDED TO YOU BY THE 8 COOPERATING WITNESS, IS THAT CORRECT? 9 A THE TESTIMONY I AM PROVIDING TODAY? 10 Q YES. 11 A WELL, THE TESTIMONY I AM PROVIDING TODAY COMES 12 FROM A NUMBER OF SOURCES, FROM THE COOPERATING WITNESS, 13 FROM CONVERSATIONS I HAVE HAD WITH DARLENE, FROM 14 REPORTS THAT I HAVE HAD READ. YOU HAVE TO BE MORE 15 SPECIFIC. 16 Q OKAY. YEAH, I AM REFERRING TO RIGHT NOW IS 17 THE INFORMATION THAT THERE WERE OTHER VARIOUS POTENTIAL 18 FAMILIES INVOLVED IN THIS SCHEME TO IMPORT NARCOTICS 19 INTO THE COUNTRY? 20 A HOW I CAME TO KNOW THAT OR HOW I CAME TO 21 BELIEVE THAT WAS FROM INFORMATION PROVIDED BY THE 22 COOPERATOR, AND ALSO, FROM OTHER FILES AND REPORTS THAT 23 I HAD READ. 2:27P 24 Q OKAY. AT SOME POINT IN TIME, LET'S GO BACK TO 25 THE CONTROLLED DELIVERY. WERE YOU ADVISED THAT A 20 1 CONTROLLED DELIVERY WOULD BE ATTEMPTED? 2 A YES. 3 Q AND WERE YOU KEPT ABREAST OF THE DEVELOPMENTS 4 OF THAT CONTROLLED DELIVERY? 5 A YES. 6 Q WHO KEPT YOU ABREAST OF THAT? 7 A DARLENE FITZGERALD. 8 Q DID YOU EVER HAVE ANY CONVERSATIONS WITH 9 MR. PINKAVA ABOUT THE CONTROLLED DELIVERY? 10 A NOT THAT I RECALL. 11 Q NOW, AT SOME POINT, DID YOU LEARN THAT THE 12 SURVEILLANCE FOR THE CONTROLLED DELIVERY HAD STOPPED? 13 A YES. 14 Q AND AT THAT POINT IN TIME, HAD YOU HAD ANY 15 BRIEFING OR INFORMATION DIRECTLY FROM THE CONFIDENTIAL 16 INFORMANT OR THE COOPERATING WITNESS CONCERNING WHETHER 17 OR NOT THE OPERATION HAD BEEN COMPROMISED? 18 A I CAME TO THE CONCLUSION -- 19 MS. CLUKEY: EXCUSE ME, I AM GOING TO OBJECT. 20 I AM A LITTLE CONFUSED. WAS THE COOPERATING WITNESS 21 ARRESTED, AT THIS POINT, AND IN CUSTODY? 2:28P 22 THE COURT: WELL, MS. CLUKEY, I AM NOT SURE, 23 ARE YOU OBJECTING? 24 MS. CLUKEY: ON HEARSAY, YOUR HONOR. LACK OF 25 PERSONAL KNOWLEDGE. 21 1 THE COURT: OVERRULED. 2 THE WITNESS: YOU ARE ASKING ME HOW I CAME TO 3 THE BELIEF THAT I HAVE, RIGHT? 4 BY MR. BEBI: 5 Q YES. 6 A ALL RIGHT. I CAME TO THE BELIEF, OR CAME TO 7 BELIEVE THAT THE OPERATION HAD BEEN COMPROMISED BECAUSE 8 THERE WAS SUPPOSED TO BE A PICK UP OF THE CONTROLLED 9 DELIVERY AT A CERTAIN POINT, AND THEY HAD SURVEILLANCE 10 OUT THERE, AND THE PEOPLE WHO WERE GOING TO PICK IT UP 11 DIDN'T SHOW UP AT THE TIME THAT THE COOPERATOR TOLD US 12 THAT THEY WERE GOING TO PICK IT UP. AND I HAD COME TO 13 THE CONCLUSION THAT IF THEY WERE SUPPOSED TO BE THERE 14 AT A CERTAIN TIME AND THEY WEREN'T, AND THEY USUALLY 15 PICK UP LIKE CLOCK WORK, THEN, THE SURVEILLANCE HAD 16 BEEN COMPROMISED IN SOME WAY. 17 Q OKAY. SUBSEQUENT TO THAT, DID YOU RECEIVE 18 ADDITIONAL INFORMATION FROM THE COOPERATING WITNESS 19 THAT NO, IT HAD NOT? THAT THEY WERE STILL GOING TO TRY 20 TO PICK UP THE DRUGS? 2:29P 21 A YES. THEY WERE GOING TO WAIT UNTIL 22 SURVEILLANCE WAS GONE, AND THEN, THEY WERE GOING TO 23 PICK IT UP WAS WHAT THEY WERE GOING TO DO. 24 Q DID YOU ADVISE MS. FITZGERALD OF THAT? 25 A OF? I AM SORRY, OF? 22 1 Q OF THIS PLAN THAT THEY WERE GOING TO WAIT FOR 2 THE SURVEILLANCE TO LIFT AND THEN THEY WERE GOING TO 3 PICK UP THE DRUGS? 4 A WELL, IF THE INFORMATION CAME FROM THE 5 COOPERATING WITNESS, THEN, DARLENE WOULD HAVE KNOWN 6 ABOUT IT. WE DON'T TALK TO HIM ALONE, OR AT LEAST I 7 DON'T TALK TO HIM ALONE. SO, WE WOULD HAVE LEARNED 8 ABOUT IT AT ABOUT THE SAME TIME. 9 Q AT SOME POINT IN TIME, DID YOU LEARN THAT THE 10 SURVEILLANCE HAD BEEN LIFTED AND SOMEONE HAD BROKEN 11 INTO THE TANKER CAR? 12 A YES. 13 Q BEFORE THAT HAPPENED, DID ANYONE CONSULT WITH 14 YOU WITH REGARD TO THE INFORMATION THAT YOU HAD 15 RECEIVED FROM DEBRIEFING THE COOPERATING WITNESS 16 CONCERNING WHETHER OR NOT THAT WAS A GOOD IDEA? 17 A I AM SORRY, I DON'T UNDERSTAND YOUR QUESTION. 18 Q SURE. BEFORE THE SURVEILLANCE WAS LIFTED, DID 19 ANYONE CONSULT -- ANYONE OTHER THAN MS. FITZGERALD, DID 20 ANYONE FROM CUSTOMS CONSULT WITH YOU TO SEE WHETHER OR 21 NOT IT WAS A GOOD IDEA TO LIFT THE SURVEILLANCE AT THAT 22 PARTICULAR POINT IN TIME? 2:31P 23 A NO. 24 Q DID IT COME AS A SURPRISE TO YOU THAT 25 SURVEILLANCE HAD BEEN LIFTED AND THAT THE TANKER CAR 23 1 HAD BEEN BROKEN INTO? 2 A YES. 3 Q NOW, IN TERMS OF THE CASE'S POTENTIAL WHEN IT 4 WAS FIRST BROUGHT TO YOU, DID YOU VIEW THIS AS A 5 POTENTIALLY BIG CASE OR SMALL CASE? 6 A WELL, THE STATE THAT I RECEIVED IT IN WAS, I 7 THINK, A MEDIUM SIZED CASE, BUT IT HAD THE POTENTIAL TO 8 BE QUITE LARGE. 9 Q AND WHY IS THAT? 10 A BECAUSE WE HAD INFORMATION AND WERE WORKING 11 WITH SOMEONE WHO WAS WITHIN THE TRANSPORTATION CELL, 12 THE PEOPLE WHO TRANSPORT IT ACROSS THE BORDER. AND SO, 13 THE POTENTIAL WAS TO MOVE UP FROM THERE. THAT, 14 BASICALLY, WOULD BE THE SUPPLIERS. IT'S A GOOD PLACE 15 TO BE. IT'S NOT A SMALL CASE. IT'S NOT A HUGE CASE, 16 BUT IT'S A MEDIUM SIZED CASE THAT HAS POTENTIAL. 2:32P 17 Q WOULD YOU DESCRIBE THE CASE AS BEING A BIG 18 DEAL? 19 A SURE. THAT SIZE SEIZURE IS A PRETTY GOOD 20 DEAL. PRETTY BIG DEAL. 21 Q NOW, AFTER THE ATTEMPTED CONTROLLED DELIVERY 22 FAILED, DID YOU CONTINUE TO WORK THE CASE? 23 A YES. 24 Q AND WHAT DID YOU DO IN THAT REGARD, JUST 25 GENERALLY? 24 1 A WE CONTINUED TO WORK WITH THE COOPERATING 2 WITNESS. WE OBTAINED HIS COMPUTER AND SOME DOCUMENTS 3 FROM HIM. WE LOOKED AT TELEPHONE RECORDS. WE WENT OUT 4 TO THE SITE. WE VISITED THE SITE. HIS BUSINESS. THE 5 COOPERATOR'S BUSINESS. WE WENT OUT TO THE RAILROAD AND 6 MET WITH THE RAILROAD PEOPLE. 7 Q OKAY. 8 A RAILROAD POLICE. 9 Q AND YOU CONTINUED TO WORK WITH MS. FITZGERALD, 10 IS THAT CORRECT? 11 A CORRECT. 12 Q AS YOU CONTINUED TO WORK WITH HER, DID YOU 13 BECOME CONCERNED OVER THE FACT THAT MS. FITZGERALD 14 SEEMED TO BE WORKING THE CASE BY HERSELF? 2:33P 15 A WELL, IT PROBABLY COULD HAVE USED MORE 16 RESOURCES. 17 Q AND DID YOU EXPRESS THAT TO MS. FITZGERALD? 18 A SURE. PARTICULARLY WHEN YOU ARE TALKING ABOUT 19 GATHERING A LOT OF DOCUMENTS, OR COMPUTERS, THEN, YOU 20 NEED SOMEONE WHO'S GOING TO GET THE INFORMATION FROM 21 THE COMPUTER, PROCESS IT PROPERLY, THE DOCUMENTS NEED 22 TO BE EVALUATED. YOU NEED AN ANALYST FOR THAT. THERE 23 IS A WHOLE SLEW OF PEOPLE WHO NEED TO BE IN PLACE TO 24 SUPPORT AN INVESTIGATION. 25 Q TO YOUR KNOWLEDGE, WERE ANY OF THOSE PEOPLE IN 25 1 PLACE? 2 A I JUST DEALT WITH DARLENE, BUT I DON'T KNOW, 3 IN FACT, IF THERE WERE OTHER PEOPLE BECAUSE MY CONTACT 4 WAS WITH DARLENE. 5 Q NOW, AT SOME POINT IN TIME, DID YOU HAVE A 6 MEETING WITH A FELLOW NAMED STEVE COOPER, TO DISCUSS 7 THE TANKER CAR CASE? 8 A YES. 9 Q AND FIRST OF ALL, WHAT WAS YOUR UNDERSTANDING 10 OF WHAT TANKER CAR CASE YOU WERE DISCUSSING WITH MR. 11 COOPER? 2:34P 12 A THE TANKER CAR CASE WE ARE TALKING ABOUT, BUT 13 IT WAS NOT JUST THE CASE. IT WAS THE LARGER 14 INVESTIGATION AS WELL. 15 Q DO YOU RECALL WHAT THAT WAS CALLED? 16 A "OPERATION RIGHT RAIL." 17 Q AND WHO WAS PRESENT, BESIDES MR. COOPER, AT 18 THIS MEETING, TO DISCUSS "OPERATION RIGHT RAIL"? 19 A DARLENE WAS THERE. I WAS THERE. 20 I DON'T REMEMBER ALL THE NAMES, BUT I KNOW THAT CUSTOMS 21 SERVICE AGENTS, CUSTOMS INSPECTORS, REPRESENTATIVES 22 FROM THE SAN BERNARDINO POLICE DEPARTMENT, THE RAILROAD 23 POLICE, AND THEN, OF COURSE, ME FROM THE US ATTORNEY'S 24 OFFICE. I DON'T KNOW IF THERE WERE ANY OTHERS. 25 Q WHAT WAS THE PURPOSE OF THIS MEETING? 26 1 A TO TALK ABOUT STRATEGY AND TO ASSIGN TASKS, IF 2 WE CAN GET THAT FAR, FOR THE VARIOUS AGENCIES SO THAT 3 WE CAN START MOVING TOWARD THE GOAL OF INFILTRATING THE 4 LARGER ORGANIZATIONS. 2:35P 5 Q AND WHERE DID THIS MEETING TAKE PLACE? 6 A IN MY -- NOT MY OFFICE, IN THE US ATTORNEY'S 7 OFFICE. 8 Q IN DOWNTOWN LOS ANGELES? 9 A YES. 10 Q AND DID YOU HAVE A DISCUSSION ABOUT THE 11 PROJECT WITH MR. COOPER? 12 A IN THE MEETING? 13 Q YES. 14 A YES. 15 Q AND CAN YOU TELL US WHAT YOU REMEMBER OF THAT 16 DISCUSSION? 17 A WELL, I WANTED TO KNOW ABOUT THE AGENCY'S 18 COMMITMENT TO THE INVESTIGATION. 19 Q AND WHAT WERE YOU TOLD ABOUT THAT? 20 A UM, WE WERE TOLD THAT -- I WAS TOLD, AT THAT 21 MEETING, THAT THEY WERE NOT GOING TO COMMIT VERY MANY 22 RESOURCES TO IT. 23 Q AND WHO TOLD YOU THAT? 24 A MR. COOPER. 25 Q OKAY. WHAT WAS YOUR REACTION? 27 1 A WELL, I WAS -- I WAS DISAPPOINTED AND 2 FRUSTRATED WITH THAT BECAUSE WE HAD A WHOLE -- WE HAD A 3 MEETING FULL OF AGENCIES AND PEOPLE AND OUR OFFICE HAD 4 COMMITTED RESOURCES. THE AGENCY HAD COMMITTED 5 RESOURCES. WE WERE READY TO GO. THEN, AT THE MEETING, 6 HE TELLS ME WE ARE NOT GOING TO PUT ANY MORE RESOURCES 7 INTO THE CASE. SO, IT'S ALMOST LIKE, "WHY ARE WE EVEN 8 ALL HERE. IT SEEMS LIKE WE ARE ALL READY TO GO. WHY 9 ARE YOU TELLING ME THIS NOW?" I WASN'T UPSET. I WAS 10 DISAPPOINTED AND FRUSTRATED WITH THAT. WHAT DO I TELL 11 THESE PEOPLE NOW? IT'S OVER? GO HOME? 2:36P 12 Q DID YOU ASK MR. COOPER, USING WORDS TO THE 13 EFFECT, "WHO'S TANKING MY CASE, OR WHO'S TORPEDOING MY 14 CASE?" 15 A YES, I ASKED HIM WHO'S TORPEDOING THE CASE. 16 Q WHAT DID HE RESPOND? 17 A HE SAID, MR. HENSLEY. I CAN'T REMEMBER, JOHN 18 HENSLEY, I THINK IS HIS NAME. 19 Q NOW, DID YOU ASK HIM WORDS TO THE EFFECT, "WHY 20 WOULD JOHN HENSLEY DO THAT?" 21 A YES. AND THE REASON I ASKED HIM WHY JOHN 22 HENSLEY WOULD DO THAT? WHY WOULD THE SPECIAL AGENT IN 23 CHARGE TANK THE CASE? WHY WOULD HE HAVE SUCH AN 24 INTEREST IN THE CASE? USUALLY, THE SAIC'S DON'T -- THE 25 SAIC IS THE SPECIAL AGENT IN CHARGE. USUALLY THEY ARE 28 1 NOT THE ONES PROVIDING THE OBSTACLE. IT'S USUALLY 2 SOMEBODY IN BETWEEN WHO MIGHT BE AN OBSTACLE. I WAS 3 KIND OF SURPRISED WHEN HE SAID JOHN HENSLEY WAS TANKING 4 THE CASE OR TORPEDOING THE CASE. 5 Q OBVIOUSLY, YOU KNEW WHO JOHN HENSLEY WAS? 6 A RIGHT. I KNEW WHO HE WAS. HE WAS THE SPECIAL 7 AGENT IN CHARGE. SO, I WAS JUST SURPRISED AND SAID, 8 "WHY WOULD HE DO THAT?" HE DIDN'T HAVE A REASON. I 9 DON'T KNOW IF HE DIDN'T HAVE A REASON. HE DIDN'T TELL 10 ME. 2:38P 11 Q WHEN YOU ASKED HIM, WHAT DID HE SAY, IF 12 ANYTHING? 13 A HE DIDN'T SAY ANYTHING. LET'S PUT IT THIS 14 WAY, I DON'T REMEMBER A RESPONSE FROM HIM. I DON'T 15 KNOW IF HE SAID, "I DON'T KNOW," OR IF HE SAID NOTHING. 16 BUT I DON'T REMEMBER LEARNING OF ANY RESPONSE TO THAT. 17 AND THEY DON'T HAVE TO GIVE US A REASON. THEY ARE THE 18 ONES WHO DECIDE WHETHER THEY ARE GOING TO COMMIT 19 RESOURCES TO AN INVESTIGATION. WE ARE JUST THE 20 PROSECUTING AGENCY. SO, IF THEY TELL US, "WE ARE NOT 21 GOING TO PROVIDE YOU WITH THE RESOURCES," THAT'S THE 22 END OF THE STORY. 23 Q AT THAT POINT IN TIME, DID YOU FEEL THIS WAS 24 STILL A GOOD CASE? 25 A WELL, I THOUGHT IT WOULD BE A GOOD IDEA TO 29 1 CONTINUE, IN SOME WAY, TO TRY TO MAKE SURE THAT TANKER 2 CARS WEREN'T BEING BROUGHT INTO THE UNITED STATES IN 3 SOME WAY, WHETHER IT WAS AGENTS OR INTELLIGENCE OR 4 SOMETHING. EVEN IF IT WASN'T OF THE MAGNITUDE THAT WE 5 HAD PLANNED, I THOUGHT IT PROBABLY WOULD BE A GOOD IDEA 6 TO CONTINUE IN SOME FASHION, EVEN IF IT WASN'T THE 7 GRAND OPERATION THAT WE THOUGHT IT WAS GOING TO BE. 2:39P 8 Q UP TO THAT POINT IN TIME, WORKING WITH 9 MS. FITZGERALD, DID YOU FEEL SHE HAD DONE A GOOD JOB 10 INVESTIGATING THE CASE? 11 A YES. 12 MR. BEBI: THAT'S ALL I HAVE, YOUR HONOR. 13 THE COURT: THANK YOU. MS. CLUKEY, 14 MR. STUTLER? 15 MS. CLUKEY: MAY I HAVE ONE MINUTE, YOUR 16 HONOR? 17 THE COURT: YES. 18 CROSS EXAMINATION 19 BY MS. CLUKEY 20 Q GOOD AFTERNOON. 21 A GOOD AFTERNOON. 22 Q THE CASE THAT YOU TESTIFIED ABOUT WITH REGARDS 23 TO THE COOPERATING WITNESS, THAT WAS UNITED STATES 24 VERSUS RAUL LOPEZ, CORRECT? 25 A YES. 30 1 Q WAS IT YOUR UNDERSTANDING THAT THE FIRST TIME 2 THE RAC/RIVERSIDE OFFICE LEARNED OF A SUSPICIOUS RAIL 3 CAR WAS IN APRIL OF 1998? 4 A I DON'T KNOW WHEN THE RAC WOULD HAVE LEARNED 5 ABOUT IT. I JUST KNOW WHEN I LEARNED ABOUT IT. 6 Q AND WHEN WAS THAT? 7 A THE DAY OF THE TANKER CAR SEIZURE, OR THE DAY 8 THAT DARLENE CALLED ME ABOUT THE SEARCH WARRANT, OR 9 WHETHER SHE NEEDED A SEARCH WARRANT. 2:40P 10 Q AND ON THE DAY OF THE SEARCH WARRANT, HAD 11 ANYONE BEEN ARRESTED? 12 A THE DAY THAT SHE CALLED ME ABOUT DOING THE 13 SEARCH, OR WHETHER SHE NEEDED A SEARCH WARRANT, I DON'T 14 THINK SO. I DON'T THINK SO. 15 Q HAD THE TANKER CAR BEEN OPENED UP AND THE 16 DRUGS SEIZED WHEN SHE CALLED YOU? 17 A NO. THEY WERE CONTEMPLATING DOING THAT. SHE 18 NEEDED TO KNOW WHETHER SHE NEEDED A WARRANT OR WHETHER 19 THE BORDER EXCEPTION APPLIED. 20 Q SO, WHEN SHE CALLED YOU, NO ONE HAD BEEN 21 ARRESTED AND YOU WERE TELLING HER THAT IT WAS OKAY TO 22 OPEN UP THE CAR, RIGHT? 23 A RIGHT. 24 Q SEIZE THE CAR AND OPEN IT? 25 A RIGHT. 31 1 Q AND THEN, THAT WAS DONE, CORRECT? 2 A CORRECT. 3 Q AND THEN, SURVEILLANCE WAS PLACED ON THE CAR 4 FOR HOW LONG, DO YOU REMEMBER? 5 A I DON'T REMEMBER. I THINK -- I DON'T KNOW. I 6 THINK IT WAS A COUPLE DAYS AND THAT WAS IT. THAT'S MY 7 GUESS. I DON'T KNOW FOR SURE. 8 Q WHEN THE CAR WAS SEIZED AND OPENED UP, WAS 9 ANYONE ARRESTED, SUBSEQUENT TO THAT, AS A RESULT OF THE 10 SEIZURE? 2:41P 11 A WELL, AT THE TIME THAT THEY OPENED IT UP -- 12 ARE YOU TALKING ABOUT WHEN THEY -- CUSTOMS OPENED IT 13 UP? 14 Q RIGHT. 15 A WELL, THERE WAS NOBODY THERE SO THEY DIDN'T 16 ARREST ANYBODY THERE, IF THAT'S WHAT YOU ARE REFERRING 17 TO. 18 Q SO, ALL OF YOUR TESTIMONY ABOUT THE 19 COOPERATING WITNESS HAD TO HAVE OCCURRED AFTER THE 20 SEIZURE, CORRECT? 21 A I THINK SO. 22 Q AND IT HAD TO HAVE OCCURRED AFTER SOMEONE WAS 23 ARRESTED, CORRECT? 24 A CORRECT. 25 Q AND DO YOU RECALL WHEN RAUL LOPEZ WAS 32 1 ARRESTED? 2 A I DON'T REMEMBER WHEN HE WAS ARRESTED. I 3 REMEMBER CERTAIN THINGS ABOUT HIM AND WHEN HE CAME IN 4 AND WHAT HE LOOKED LIKE. I MEAN HE -- THE WAY HE CAME 5 TO MY KNOWLEDGE IS HE HAD TURNED HIMSELF IN, SO TO 6 SPEAK. HE IS THE ONE WHO WANTED TO COOPERATE. 7 Q RAUL LOPEZ WAS THE COOPERATING WITNESS, RIGHT? 8 A CORRECT. 9 Q WAS HE EVER TRIED? 10 A NO. HE COOPERATED. HE WAS CONVICTED, BUT HE 11 WASN'T TRIED. 2:42P 12 Q THIS CASE INVOLVING THE TANKER CAR, THE 13 SEIZURE, THE BIG SEIZURE AND ALL THAT, IS THAT YOUR 14 UNDERSTANDING THAT WAS CALLED "OPERATION RIGHT RAIL." 15 A NO, I THINK "OPERATION RIGHT RAIL" STARTED 16 AFTER THE SEIZURE. IT WAS DEVELOPED BECAUSE OF WHAT WE 17 LEARNED, OR WHAT CUSTOMS LEARNED IN CONNECTION WITH 18 THIS SEIZURE. THAT'S MY UNDERSTANDING. 19 Q SO, YOUR UNDERSTANDING IS THAT "OPERATION 20 RIGHT RAIL" AROSE OUT OF THIS SEIZURE? 21 A I BELIEVE SO. I DON'T KNOW THE INNER WORKINGS 22 OF CUSTOMS THAT WELL. BUT, I THINK THAT "RIGHT RAIL" 23 DEVELOPED OUT OF THE SEIZURE. 24 Q IN FACT, YOUR KNOWLEDGE OF THE NAME OF THE 25 INVESTIGATION COMES FROM DARLENE, RIGHT? 33 1 A NO. THEY WILL SAY IN THE REPORTS, SOMETIMES, 2 THE NAME OF THE OPERATION. ALTHOUGH, SOMETIMES THEY 3 WILL BLACK OUT THE NAME OF THE OPERATION WHEN THEY GIVE 4 US THE REPORTS. 5 Q WHO GENERATES THE REPORT? 6 A THERE COULD BE A NUMBER OF AGENTS WHO GENERATE 7 THE REPORTS. DARLENE WOULD GENERATE REPORTS. ANYBODY 8 ELSE WHO WORKS IN CONNECTION WITH THE CASE WILL 9 GENERATE A REPORT. 2:43P 10 Q THE INVESTIGATION THAT AROSE OUT OF THIS 11 SEIZURE THAT YOU UNDERSTAND AS BEING "OPERATION RIGHT 12 RAIL", THAT NAME CAME FROM DARLENE, RIGHT? 13 A I DON'T UNDERSTAND WHAT YOU MEAN. THE AGENCY 14 GIVES THEIR OPERATIONS NAMES. I MEAN, THEY CALL THEM 15 ALL KINDS OF THINGS. "OPERATION CASA BLANCA." 16 "OPERATION RIGHT RAIL". I MEAN, THE AGENCY GIVES THEM 17 THE NAME. 18 Q LET ME ASK YOU THIS, DO YOU KNOW WHAT AN SPS 19 IS? 20 A SPS? 21 Q RIGHT. 22 A NO. 23 Q YOU HAVE NEVER HEARD OF A STRATEGIC SOLVING 24 PROBLEM PROJECT? 25 A NO. 34 1 Q HAVE YOU EVER BEEN INVOLVED IN THE SPS? 2 A I MAY HAVE. 3 MS. CLUKEY: MAY I APPROACH, YOUR HONOR? 4 THE COURT: YES. 5 BY MS. CLUKEY: 6 Q I AM GOING TO SHOW YOU AN EXHIBIT CALLED DD. 7 HAVE YOU EVER SEEN THAT BEFORE? 8 A YOU KNOW, I MAY HAVE. I MAY HAVE. 2:44P 9 Q ARE YOU FAMILIAR -- 10 A I SAW SO MANY DOCUMENTS THAT I COULDN'T TELL 11 YOU IF I SAW THIS ONE IN PARTICULAR. 12 Q DO YOU KNOW A GUY BY THE NAME OF BRYANT VAN 13 BUSKIRK? 14 A NO. 15 Q DO YOU KNOW SOMEONE NAMED MIKE KELLY? 16 A THAT SOUNDS FAMILIAR OR -- HE SOUNDS FAMILIAR. 17 Q DID YOU WORK WITH HIM ON A PROJECT AT ALL IN 18 YOUR CAREER? 19 A MIKE KELLY? I MAY HAVE. 20 Q DO YOU RECALL A GUY BY THE NAME OF ROD YOUNG? 21 A NO. 22 Q WHEN YOU WORKED WITH MIKE KELLY, WAS THAT ALSO 23 IN CONJUNCTION WITH DARLENE FITZGERALD? 24 A I DON'T KNOW. 25 MS. CLUKEY: MAY I APPROACH, YOUR HONOR? 35 1 THE COURT: YES. 2 BY MS. CLUKEY: 3 Q CAN YOU TELL ME WHAT THAT IS? 4 A WELL, FROM LOOKING AT IT, IT SAYS, "SPS 5 PROPOSAL, 'OPERATION RIGHT RAIL'". 6 Q HAVE YOU EVER SEEN THAT BEFORE? 7 MR. BEBI: EXCUSE ME, MS. CLUKEY, WHAT 8 DOCUMENT IS THAT? 2:45P 9 MS. CLUKEY: DE. 10 THE WITNESS: I MAY HAVE, BUT I DON'T KNOW. I 11 MAY HAVE. IT DOESN'T LOOK FAMILIAR, AS I LOOK AT IT 12 TODAY. 13 BY MS. CLUKEY: 14 Q DO YOU EVER RECALL SEEING IT IN CONNECTION 15 WITH THIS INVESTIGATION THAT AROSE OUT OF THE SEIZURE 16 OF THE TANKER CAR? 17 A I WANT TO SAY NO FOR BOTH OF THESE. 18 Q DO YOU REMEMBER A CASE NAMED T&L? 19 A YES. 20 Q WAS THAT THE NAME OF THIS TANKER CAR, THE CASE 21 INVOLVING THE SEIZURE OF THE TANKER CAR? 22 A I DON'T KNOW IF IT'S THE NAME OF THE CASE, BUT 23 T&L WAS THE BUSINESS THAT THE COOPERATING WITNESS USED. 24 Q DID YOU EVER SEE ANY DOCUMENTS STATING THAT 25 DARLENE WAS ON "OPERATION RIGHT RAIL"? 36 1 A I DON'T REMEMBER. PROBABLY DID, BUT I DON'T 2 RECALL. 3 Q DID ANYONE EVER TELL YOU, OTHER THAN DARLENE, 4 THAT SHE WAS ON "OPERATION RIGHT RAIL"? 5 A DID ANYBODY TELL ME THAT? NO. NOBODY CAME UP 6 TO ME AND SAID, "DARLENE IS ON 'OPERATION RIGHT RAIL'". 7 NO, NOBODY EVER SAID THAT. SHE WAS THE ONLY PERSON I 8 EVER WORKED WITH SO -- 2:46P 9 Q DID YOU EVER PERSONALLY ASK ANYONE AT CUSTOMS 10 FOR MORE RESOURCES? 11 A NO. 12 Q DID YOU SAY TO STEVE COOPER THAT YOU NEEDED 13 MORE RESOURCES? 14 A NO, I DON'T -- 15 Q DO YOU RECALL A MEETING WITH GARY PINKAVA AND 16 DARLENE? 17 A NO, I DON'T. NO. GIVE ME MORE INFORMATION. 18 Q DO YOU RECALL ATTENDING A MEETING IN EARLY 19 19 -- BEFORE THE MEETING WITH STEVE COOPER, DO YOU 20 REMEMBER A MEETING WITH DARLENE AND GARY PINKAVA? 21 A I DON'T HAVE A RECOLLECTION OF THAT. 22 Q DO YOU REMEMBER HAVING A PROBLEM -- 23 A I MAY HAVE. I MAY HAVE, BUT -- 24 Q YOU JUST DON'T REMEMBER? 25 A I DON'T REMEMBER. 37 1 Q DO YOU REMEMBER HAVING A PROBLEM WITH THE 2 CORPORATE ATTORNEY AT T&L, THE INVESTIGATION IN THAT 3 CASE, AND AN ISSUE ARISING WITH THE CORPORATE ATTORNEY? 4 A COULD YOU GIVE ME MORE INFORMATION? I DON'T 5 KNOW WHAT YOU MEAN BY THE "CORPORATE ATTORNEY." I KNOW 6 THAT THE COOPERATOR HAD AN ATTORNEY. 2:47P 7 Q T&L ITSELF, THE CORPORATION, DO YOU EVER 8 REMEMBER ANY ISSUES ARISING OUT OF AN ATTORNEY/CLIENT 9 PRIVILEGE AND A CORPORATE ATTORNEY? 10 A THERE MAY HAVE BEEN. IT DOESN'T STICK OUT IN 11 MY MIND, BUT THERE MAY HAVE BEEN. 12 Q DO YOU KNOW WHO GARY PINKAVA IS? 13 A HE WORKS FOR CUSTOMS. 14 Q DO YOU REMEMBER IF HE WAS PUSHING YOU FOR 15 INDICTMENTS IN THE T&L CASE? 16 A HE MAY HAVE BEEN. 17 Q DURING THAT MEETING WITH STEVE COOPER, ARE YOU 18 SURE THAT YOU USED THE WORD TORPEDO? 19 A OH, I MAY HAVE. I DON'T KNOW FOR SURE IF I 20 USED THE WORD TORPEDO. 21 Q WHAT WAS YOUR GENERAL IMPRESSION OF THE CASE 22 THAT JOHN HENSELY DID NOT WANT TO DEVOTE MORE RESOURCES 23 TO THAT CASE? 24 A I DID NOT KNOW THAT. THAT'S WHAT STEVE COOPER 25 TOLD ME. I DON'T PERSONALLY KNOW WHETHER HE WANTED TO 38 1 DEVOTE RESOURCES TO IT OR NOT EXCEPT THAT THE 2 INVESTIGATION SEEMED TO DIE OFF. THAT'S THE ONLY WAY I 3 CAME TO THE CONCLUSION THAT THE AGENCY DECIDED NOT TO 4 DEVOTE RESOURCES TO IT. 2:48P 5 Q HAVE YOU BEEN INVOLVED IN OTHER CASES THAT 6 SEEM TO DIE OFF? 7 A SURE. 8 Q CASES THAT DID NOT INVOLVE CUSTOMS? 9 A SURE. 10 Q WAS THERE ANYTHING ABOUT THE WAY COOPER SAID 11 IT THAT GAVE YOU THE IMPRESSION THAT MR. HENSLEY WAS 12 DOING ANYTHING IMPROPER? 13 A NO. 14 Q HAVE YOU EVER SOUGHT TO INITIATE ANY SORT OF 15 CRIMINAL PROCEEDING AGAINST ANY EMPLOYEE OF CUSTOMS AS 16 A RESULT OF ANYTHING YOU LEARNED DURING YOUR WORK WITH 17 DARLENE? 18 A NO. 19 Q IS IT ACCURATE, THEN, THAT NOTHING YOU LEARNED 20 IN THE COURSE OF YOUR WORK WITH DARLENE SUGGESTED THAT 21 THE ACTIONS OF ANY CUSTOMS EMPLOYEES ROSE TO THE LEVEL 22 OF CRIMINAL CONDUCT? 23 A AM I OF THAT OPINION? 24 Q YES. 25 A YES. I DON'T THINK IT WAS CRIMINAL. 39 1 Q AND WHEN YOU WERE AN AUSA, YOU WERE IN THE 2 CRIMINAL SECTION, RIGHT? 3 A CORRECT. 4 Q WERE YOU A HARD CHARGING CRIMINAL AUSA? 5 A WELL, I WAS AN AUSA. 6 Q T&L WAS YOUR CASE, RIGHT? 7 A YES, IT WAS MY CASE. 8 Q AND THE INVESTIGATION THAT AROSE OUT OF T&L 9 WOULD HAVE BEEN YOUR CASE, RIGHT? 2:49P 10 A CORRECT. 11 Q AND IT WOULD HAVE BEEN FUN FOR YOU, IN YOUR 12 PROFESSION, TO HAVE A BIG CASE THAT WENT TO TRIAL, 13 RIGHT? 14 A IT ALWAYS IS. 15 Q AND IT WAS YOUR JOB TO BRING CASES TO TRIAL, 16 RIGHT? 17 A YES. 18 Q AND IT WAS YOUR JOB TO PUSH AGENCIES, AT 19 TIMES, TO DEVOTE MORE RESOURCES TO CASES THAT YOU 20 THOUGHT WOULD GO TO TRIAL SUCCESSFULLY, RIGHT? 21 A YOU CAN ENCOURAGE THEM, YES. 22 Q SO, NOTHING THAT YOU DID IN TERMS OF 23 ENCOURAGING CUSTOMS WITH RESPECT TO T&L WAS ANYTHING 24 DIFFERENT THAN WHAT YOU WOULD DO WITH ANOTHER AGENCY, 25 RIGHT? 40 1 A I THINK THAT'S TRUE. THERE WAS NOTHING 2 EXTRAORDINARY ABOUT MY ACTIONS IN THAT CASE. 3 Q NOR WAS THERE ANYTHING EXTRAORDINARY ABOUT 4 CUSTOMS ACTIONS, CORRECT, IN YOUR MIND? 5 A WELL, WHAT DO YOU MEAN BY THAT? JUST 6 GENERALLY? 7 Q CORRECT. 8 A WELL, THE ONLY THING THAT I THINK WAS 9 DISAPPOINTING TO ME WAS, AS YOU SAID, I AM A 10 PROSECUTOR. I AM INTERESTED IN DEVELOPING CASES. IS 11 THAT WHEN YOU HAVE A CASE THAT LOOKS LIKE IT COULD BE 12 FRUITFUL, TO HAVE AN AGENCY DECIDE THEY DON'T WANT TO 13 DEVOTE RESOURCES TO IT, THAT'S DISAPPOINTING. IT 14 WOULDN'T BE THE FIRST TIME IT'S EVER HAPPENED, BUT IT'S 15 DISAPPOINTING. 2:51P 16 Q YOU TESTIFIED EARLIER WHEN MR. BEBI WAS ASKING 17 YOU QUESTIONS THAT YOU HAD SPOKEN WITH THE COOPERATING 18 WITNESS BEFORE THE CONTROLLED DELIVERY WAS OVER, IS 19 THAT TRUE? 20 A I THINK SO. I THINK SO. 21 Q BUT THEN, I HAD ASKED YOU ABOUT THE SEQUENCE 22 OF EVENTS. I DON'T BELIEVE ANYONE HAD BEEN ARRESTED 23 BEFORE THE SURVEILLANCE WAS OVER, ISN'T THAT TRUE? 24 A I AM NOT SURE OF THE TIMING. I MAY HAVE 25 ANSWERED THAT WAY. I AM NOT SURE OF THE TIMING. 41 1 Q AT SOME POINT, RAUL LOPEZ BECAME A CONTROL -- 2 COOPERATING WITNESS, BUT YOU DON'T RECALL WHEN? 3 A YEAH, I AM NOT REALLY ABSOLUTELY SURE WHEN. 4 Q DO YOU RECALL HEARING THAT SOMEONE FROM THE 5 CORPORATION HAD CALLED -- I AM SORRY, THAT ONE OF THE 6 CROOKS HAD CALLED THE CORPORATION ASKING WHERE THE 7 TANKER CAR WAS AND SURVEILLANCE WAS BLOWN BECAUSE OF 8 THAT PHONE CALL? 9 A I AM SORRY, REPEAT YOUR QUESTION. 10 Q DID YOU EVER HEAR ANYTHING ABOUT ONE OF THE 11 BAD GUYS CALLING AND BLOWING SURVEILLANCE INDIRECTLY? 2:52P 12 A A BAD GUY HAD CALLED CUSTOMS OR CALLED -- 13 Q CALLED EITHER CUSTOMS -- I BELIEVE CUSTOMS, 14 AND IT WAS REVEALED -- 15 A I HAVE A RECOLLECTION THAT MAYBE THEY HAD NOT 16 CALLED CUSTOMS, BUT HAD CALLED THE RAIL COMPANY. 17 Q THAT'S RIGHT. THEY CALLED THE RAIL COMPANY. 18 A THE RAIL COMPANY THERE MAY HAVE BEEN SOMETHING 19 THAT WENT ON LIKE THAT. 20 Q AND THE RAIL COMPANY SAID, "CUSTOMS HAS YOUR 21 TANKER CAR," CORRECT? YOU DON'T KNOW? 22 A I DON'T REMEMBER. I DO RECALL THERE MAY HAVE 23 BEEN SOMETHING LIKE THAT WHERE THEY CALLED THE 24 RAILROAD. 25 Q AND YOU WERE ASKED EARLIER IF YOU HAD BEEN 42 1 CONSULTED WITH TERMINATING THE SURVEILLANCE. DO YOU 2 RECALL THAT? 3 A YES. NOBODY TOLD ME ABOUT IT. 4 Q WAS IT NORMAL FOR SOMEONE TO CALL THE CRIMINAL 5 AUSA IN ORDER TO TERMINATE SURVEILLANCE, OR IS THAT 6 SOMETHING THAT FALLS WITHIN THE AGENCY'S DISCRETION? 7 A ULTIMATELY, IT'S THE AGENCY. IT DOESN'T 8 MATTER WHAT WE SAY. WE COULD TELL THEM DON'T DO IT, 9 AND THEY CAN SAY, TOO BAD, WE ARE GOING TO DO IT. 10 Q IF, IN FACT, SURVEILLANCE HAD BEEN BLOWN 11 BECAUSE OF A PHONE CALL TO THE RAIL CAR COMPANY THAT 12 WOULD BE A VALID REASON FOR TERMINATING SURVEILLANCE, 13 WOULDN'T IT? 2:53P 14 A I DON'T KNOW. IT DEPENDS WHAT OTHER 15 INFORMATION YOU HAVE. THAT WOULDN'T BE MY CALL. I CAN 16 ADVISE THE AGENCY AS TO WHAT I THINK THEY SHOULD DO IN 17 A CASE. ULTIMATELY, IT IS THE AGENCY'S DECISION 18 WHETHER THEY WANT TO CALL OFF SURVEILLANCE. THEY HAVE 19 SECOND GUESSED ME PLENTY OF TIMES. IN THIS 20 CIRCUMSTANCE, THEY DECIDED NOT TO CALL ME AT ALL. SOME 21 CIRCUMSTANCES THEY WILL CALL, YOU GIVE THEM THE INPUT 22 AND THEY ULTIMATELY DECIDE WHAT THEY WANT TO DO. 23 Q IF RAUL HAD NOT BEEN ARRESTED BEFORE THE END 24 OF THE CONTROLLED DELIVERY, YOU COULD NOT HAVE SPOKEN 25 TO HIM, CORRECT? 43 1 A I AM SORRY? 2 Q IF RAUL LOPEZ HAD NOT BEEN ARRESTED BEFORE THE 3 END OF THE CONTROLLED DELIVERY, BEFORE THE END OF 4 SURVEILLANCE, YOU COULD NOT HAVE SPOKEN TO HIM, RIGHT? 5 A WELL, HE TURNED HIMSELF IN. SO, I GUESS -- I 6 DON'T KNOW WHAT YOU ARE SAYING. WHETHER HE WAS IN 7 CUSTODY? WHETHER WE ARRESTED HIM? 8 Q DO YOU RECALL WHETHER HE WAS ARRESTED BEFORE 9 OR AFTER THE END OF THE SURVEILLANCE? 2:54P 10 A I THINK HE WAS ARRESTED BEFORE. 11 Q BEFORE THE END OF THE SURVEILLANCE? 12 A I THINK SO, BUT I AM A LITTLE BLURRY AS TO THE 13 TIMING. 14 Q AND BETWEEN THE ARREST, WHEN DID HE TURN? 15 IMMEDIATELY OR DON'T YOU KNOW? 16 A I AM SORRY? 17 Q AFTER HE WAS ARRESTED, HOW SOON AFTER HE WAS 18 ARRESTED DID HE TURN? 19 A DID HE COOPERATE? 20 Q RIGHT. IMMEDIATELY? 21 A HE CAME IN COOPERATING. HE SHOWED UP 22 SOMEWHERE WITH ROPE BURNS ON HIS HANDS. I MEAN HE HAD 23 BEEN BULLIED BY THE SUPPLIERS IN THE CASE AND HE WANTED 24 TO COOPERATE. SO, HE CAME TO US. 25 Q IF HE WAS ARRESTED BEFORE THE END OF THE 44 1 CONTROLLED DELIVERY, WOULDN'T THAT COMPROMISE THE 2 CONTROLLED DELIVERY? 3 A NOT NECESSARILY. 4 MS. CLUKEY: ONE MOMENT, YOUR HONOR. 2:55P 5 NO FURTHER QUESTIONS, YOUR HONOR. 6 THE COURT: ALL RIGHT. THANK YOU. 7 MR. BEBI. 8 MR. BEBI: VERY BRIEFLY, YOUR HONOR. 9 REDIRECT EXAMINATION 10 BY MR. BEBI 11 Q DID YOU EVER HAVE CONVERSATIONS WITH MS. 12 FITZGERALD USING THE TERM "OBSTRUCTION OF JUSTICE" WITH 13 REGARD TO THINGS THAT WERE HAPPENING IN THE 14 INVESTIGATION OF THE TANKER CAR CASE? 15 A I MAY HAVE ONCE. 16 Q AND WHAT WAS THAT IN RELATION TO? 17 A I CAN THINK OF ONE INSTANCE WHERE I MAY HAVE 18 USED THAT. AND THAT WAS A CIRCUMSTANCE WHERE DARLENE 19 HAD PUT AN ALERT ON CERTAIN CARS COMING IN, TANKER CARS 20 COMING INTO THE UNITED STATES, INTO SOME COMPUTER 21 DATABASE, AND SHE LATER LEARNED THAT HER ALERT -- 22 MR. STUTLER: OBJECTION, YOUR HONOR. I 23 BELIEVE THIS IS GOING TO GET INTO THE AREA THAT THE 24 COURT'S ELIMINATED THROUGH MOTIONS IN LIMINE. 25 THE COURT: WHY DON'T YOU COME TO SIDEBAR. 45 2:57P 1 (SIDEBAR CONFERENCE HELD.) 2 MR. STUTLER: I THINK SHE IS ABOUT TO GET INTO 3 THE REMOVAL OF THE HOLDS, AND THE COURT'S RULING SAID 4 UNLESS SHE ESTABLISHED THAT THE MANAGERS KNEW SHE WAS 5 IN THE PLACE OF HOLDS, THERE COULD BE NO EVIDENCE ON 6 THAT. I AM NOT SURE IF MR. BEBI INTENDED THAT, BUT IT 7 SOUNDED LIKE SHE WAS ABOUT TO SAY -- 8 MR. BEBI: I WASN'T EXPECTING THAT ANSWER, IN 9 TRUTH, YOUR HONOR. BUT THERE ARE TWO THINGS. THE 10 REASON I ASKED THE QUESTION IS BECAUSE ON CROSS 11 EXAMINATION SHE WAS ASKED IF THERE WAS ANYTHING 12 EXTRAORDINARY ABOUT THE WAY CUSTOMS HANDLED THIS CASE. 13 AND THE TESTIMONY WAS, "NO THERE WAS NOTHING 14 EXTRAORDINARY." MY INFORMATION IS THAT SHE THOUGHT 15 THAT THE COOPER INCIDENT, YOU KNOW, SHE HAD A 16 CONVERSATION WITH MY CLIENT ABOUT THE COOPER INCIDENT 17 BEING AN OBSTRUCTION OF JUSTICE. 18 THE COURT: WHICH COOPER INSTANCE? 19 MR. BEBI: THE ONE WHERE HE SAID JOHN HENSLEY 20 WAS TORPEDOING, TANKING THE PROJECT. THAT'S WHERE I 21 THOUGHT WE WERE HEADING. I CAN MOVE ON TO ANOTHER 22 AREA. 23 THE COURT: PLEASE DO. 24 MR. BEBI: THANK YOU, YOUR HONOR. I 25 APOLOGIZE. 46 1 (BACK BEFORE THE JURY.) 2 BY MR. BEBI: 3 Q YOU WERE ASKED IF CUSTOMS WAS ASKED ANYTHING 4 EXTRAORDINARY ABOUT THE WAY CUSTOMS WAS HANDLING THE 5 CASE. DID THE CASE, HOWEVER, USING THE WORD 6 EXTRAORDINARY, MAYBE EXTRAORDINARY RAMIFICATIONS IN 7 TERMS OF WHAT WAS HAPPENING WITH THE IMPORTATION AND 8 THE USE OF THE RAILS? 9 A YES. 10 Q AND SPECIFICALLY WHAT ARE YOU REFERRING TO? 11 A WELL, THERE ARE TWO IMPLICATIONS OF THIS CASE. 12 ONE WAS THE NARCOTICS IMPLICATION, AND THE USE OF 13 TANKER CARS AND THE RAILROADS TO IMPORT NARCOTICS. 14 THAT WAS ONE. THAT'S THE OBVIOUS. 15 THE SECOND ONE IS THE TERRORISM IMPLICATION, 16 OR THE POTENTIAL USE OF THE RAIL CARS FOR TERRORIST 17 ACTIVITIES. 18 Q IS IT FAIR TO SAY EVEN AS FAR BACK AS 1998, 19 1999, THIS AREA WAS A CONCERN OF THE US ATTORNEY'S 20 OFFICE IN LOS ANGELES? 21 MS. CLUKEY: I AM GOING TO OBJECT ONLY ON 22 GROUNDS OF RELEVANCE, YOUR HONOR. THERE IS NO 23 TERRORISM IN THIS CASE. 2:58P 24 THE COURT: OVERRULED. 25 THE WITNESS: I DON'T KNOW FOR SURE IF THE US 47 1 ATTORNEY'S OFFICE WAS DOING ANYTHING WITH RESPECT TO 2 TERRORISM. I JUST KNOW IT WAS THE SUBJECT OF 3 DISCUSSION. 4 BY MR. BEBI: 5 Q WHILE YOU WERE WORKING ON THE TANKER CAR 6 CASES, CORRECT? 7 A RIGHT. 8 MR. BEBI: THAT'S ALL I HAVE. THANK YOU, YOUR 9 HONOR. 10 THE COURT: ALL RIGHT. THANK YOU. MAY THE 11 JUDGE BE EXCUSED? 12 MS. CLUKEY: YES, SIR. 13 THE COURT: JUDGE, THANK YOU VERY MUCH. I 14 HOPE YOU ENJOINED YOUR EXPERIENCE AS A WITNESS. IT IS 15 A DIFFERENT ROLE FOR YOU. YOU TAKE CARE. 16 THE WITNESS: IT WAS INTERESTING. THANK YOU. 17 (WITNESS EXCUSED.) 18 THE COURT: SHOULD WE RECALL MR. PINKAVA, IS 19 THAT THE PLAN? 20 MR. STENETT: YOUR HONOR, IF YOU DON'T MIND, 21 MR. PINKAVA, I HAVE A COUPLE QUESTIONS WHERE MY 22 CLIENT'S NAME CAME UP. I DON'T KNOW WHAT ORDER YOU 23 WANT. 24 MR. STUTLER: I DON'T OBJECT TO MR. 25 STENNETT -- 48 1 THE COURT: ALL RIGHT. YOU DIDN'T SPEAK UP 2 BEFORE, BUT WE WILL LET YOU DO IT NOW. 2:59P 3 MR. BEBI: ONE OF THOSE FOREVER HOLD YOUR 4 PIECE SITUATIONS, YOUR HONOR. 5 THE COURT: NO, THIS IS JUST LIKE BURGER KING. 6 WE LET YOU HAVE IT YOUR WAY. 7 MR. STUTLER: YOUR HONOR, I AM AFRAID THE 8 WITNESS IS IN MARLBORO COUNTRY. I AM SURE HE IS COMING 9 BACK UP SOON. WOULD THIS BE AN APPROPRIATE TIME FOR A 10 BREAK? 11 THE COURT: I THINK IT WOULD BE A GREAT TIME 12 FOR A BREAK. 13 LADIES AND GENTLEMEN, LET'S SEE, HOW LONG DOES 14 IT TAKE TO SMOKE A CIGARETTE? 3:00P 15 MR. STUTLER: I AM NOT SURE HOW LONG HE WILL 16 BE DOWN THERE. I DON'T THINK IT TAKES LONG. 17 THE COURT: ACCORDING TO MY WATCH IT'S FIVE 18 MINUTES AFTER 2:00. LET'S COME BACK AT A QUARTER 19 AFTER. OKAY. THANK YOU. 20 (BRIEF RECESS TAKEN.) 3:16P 21 (NO JURY PANEL PRESENT) 22 THE COURT: OKAY. I UNDERSTAND THERE IS A 23 PROBLEM WITH WITNESSES. WHAT'S THE PROBLEM? 24 MR. BEBI: WELL, WE DON'T KNOW YET, YOUR 25 HONOR. WE ARE JUST GUESSING AS TO HOW LONG MR. PINKAVA 49 1 IS GOING TO TAKE TO FINISH TODAY. WE CONCLUDED HE 2 MIGHT FINISH A BIT EARLY. I HAD A WITNESS TO FILL IN 3 IN THE EVENT THAT MR. PINKAVA DID FINISH EARLY. I 4 CALLED HIM AT LUNCH. I LEFT A MESSAGE. I HAVEN'T BEEN 5 ABLE TO GET AHOLD OF HIM. HE IS COMING FROM ORANGE 6 COUNTY. IF THE COURT WOULD LIKE, I CAN GO BACK OUT AND 7 TRY AND CALL HIM AGAIN. I MIGHT BE ABLE TO GET HIM ON 8 THE LINE. IT WOULD BE KIND OF -- 9 MR. STUTLER: IT MAY BE A NON-ISSUE. I THINK 10 I WILL PROBABLY TAKE ABOUT AN HOUR AND A HALF, MAYBE A 11 LITTLE LONGER TO GET DONE WITH MR. PINKAVA. 12 MR. BEBI: IF HE DOES TAKE THAT LONG, IT'S NOT 13 A PROBLEM, YOUR HONOR. 14 MR. STUTLER: IF WE DO END EARLY, APPARENTLY, 15 WE CAN WORK ON JURY INSTRUCTIONS. 16 THE COURT: OKAY. OTHERWISE, ARE WE AHEAD OF 17 SCHEDULE? 18 MR. BEBI: I THINK WE ARE ON SCHEDULE, 19 FINALLY, YOUR HONOR. 20 THE COURT: GOOD. GREAT. OUTSTANDING. WHY 21 DON'T YOU BRING THE JURY BACK IN. 3:17P 22 MR. BEBI: THANK YOU, YOUR HONOR. 23 (JURY ENTERS COURTROOM.) 3:18P 24 THE COURT: LET'S GO BACK ON THE RECORD. MR. 25 STENNETT, YOU SAID YOU HAD SOME QUESTIONS. 50 1 MR. STENETT: YES, JUST BRIEFLY, YOUR HONOR. 2 CROSS EXAMINATION 3 BY MR. STENNETT 4 Q MR. PINKAVA, MY NAME IS JOHN STENETT. WE 5 HAVEN'T MET BEFORE. I REPRESENT SANDY NUNN. YOU 6 SPECIFICALLY, YOU HAVE THE MEMO THAT YOU SENT TO MR. 7 HENSLEY ON JUNE 15TH, THERE. MS. NUNN'S NAME CAME UP 8 IN RELATION TO THAT. I JUST WANT TO INQUIRE AS TO YOUR 9 KNOWLEDGE ABOUT THE INQUIRIES AS TO MS. FITZGERALD'S 10 REPORTS, DUE TO THE TECS SYSTEM, BY MS. NUNN. 11 FIRST OF ALL, BEFORE JUNE 15, '99, DO YOU KNOW WHO MS. 12 NUNN WAS? 13 A I DON'T KNOW FOR SURE IF I HAVE EVER EVEN MET 14 HER. I HEARD THE NAME, I BELIEVE. 15 Q SHE HAD NEVER BEEN UNDER YOUR SUPERVISION OR 16 COMMAND, CORRECT? 17 A NO. 18 Q YOU SAID YOU MAY HAVE HEARD HER NAME. DID YOU 19 ASSOCIATE HER WITH MS. FITZGERALD IN ANY WAY, AT THAT 20 TIME? 21 A NO. 22 Q NOW, THE TECS SYSTEMS, IF SOME OTHER AGENT 23 BRINGS UP REPORTS OF ANOTHER AGENT'S CASE, I ASSUME 24 THERE IS SOME WAY TO DETERMINE WHO PULLED UP THOSE 25 REPORTS, CORRECT? 51 3:19P 1 A YES, SIR. 2 Q OKAY. THAT'S HOW TO DETERMINE THAT MS. NUNN 3 HAD LOOKED AT MS. FITZGERALD'S CASE, CORRECT? 4 A YES. IF YOU VIEW ANYONES REPORTS, THAT OWNER 5 OF THAT REPORT GETS AN AUTOMATIC E-MAIL MESSAGE THAT 6 THIS PERSON HAD QUERIED YOUR REPORT. 7 Q OKAY. ON THIS PARTICULAR CASE, THIS WAS THE 8 TANKER CAR CASE, CORRECT? 9 A YES, SIR. 10 Q ALL RIGHT. DO YOU KNOW HOW MANY QUERIES BY 11 OTHER AGENTS OUT OF YOUR OFFICE HAD PULLED UP THAT 12 CASE? 13 A NO. 14 Q DO YOU KNOW IF ANY OTHER AGENTS OUTSIDE YOUR 15 OFFICE, OTHER THAN MS. NUNN, HAD PULLED UP THAT CASE? 16 A NOT THAT I CAN RECALL. 17 Q OKAY. WOULD IT SURPRISE YOU ONE WAY OR THE 18 OTHER IF OTHER AGENTS OUTSIDE OF YOUR OFFICE HAD PULLED 19 UP THAT CASE? 20 A IT WOULDN'T BE A NORMAL THING. I MEAN, IT 21 WOULDN'T BE FULLY UNUSUAL EITHER. 3:20P 22 Q OKAY. DO YOU HAVE -- SO, OTHER THAN WHAT'S 23 SET FORTH IN THIS MEMORANDUM, DO YOU KNOW ANYTHING ELSE 24 ABOUT THIS PARTICULAR INCIDENT? 25 A VERY LITTLE RECOLLECTION OTHER THAN OBVIOUSLY 52 1 BRIEFED AT SOME POINT AND TOLD THE SUPERVISOR CALLED, 2 HER SUPERVISOR CALLED. I DON'T KNOW. I REALLY DON'T 3 RECALL. I AM SPECULATING. 4 Q THAT'S JUST WHAT I AM TRYING TO CLARIFY WHAT 5 YOU KNOW ABOUT THIS. 6 NOW, FROM WHAT I UNDERSTAND FROM YOUR MEMO IS 7 THAT YOU WERE ADVISING MR. HENSLEY THAT THIS OCCURRED, 8 THAT MISS -- THAT IT BROUGHT TO YOUR ATTENTION THAT MS. 9 NUNN HAD PULLED UP REPORTS ON MS. FITZGERALD'S CASE, 10 TANKER CAR CASE, AND THAT HARD COPIES WERE BEING SENT 11 TO HER SUPERVISOR, MR. POWELL, AND MR. POWELL WOULD 12 INQUIRE OF MS. NUNN ABOUT THE REASONS FOR THAT, IS THAT 13 BASICALLY IT? 14 A YES, IT APPEARS THAT WAY. I AM NOT SURE WHY 15 IT DIDN'T JUST GO TO MY IMMEDIATE SUPERVISOR. I DON'T 16 HAVE AN ANSWER. 3:22P 17 Q THAT WAS GOING TO BE MY NEXT QUESTION. WHY 18 DIDN'T YOU SEND A MEMO TO MR. HENSLEY ABOUT THIS? 19 A THE FACT IT'S ADDRESSED FROM ME TO MR. HENSLEY 20 WOULDN'T NECESSARILY MEAN IT WAS GOING TO GO TO JOHN 21 ALWAYS. IT'S SIMPLY A TRANSMITTAL TO GET THE DOCUMENTS 22 DONE. I DIDN'T DRAFT IT. I DIDN'T SIGN IT. IT'S NOT 23 WRITTEN BY ME. 24 Q SO, THE REASON IT WAS SENT OVER TO THE SAIC 25 OFFICE IS SO THEY COULD FORWARD THE DOCUMENTS TO MR. 53 1 POWELL? 2 A HE WORKED IN THE LOS ANGELES OFFICE. 3 Q BUT IT WASN'T ADDRESSED TO MR. POWELL, DO YOU 4 REMEMBER? 5 A RIGHT. WELL, PROCEDURALLY COMMUNICATIONS THAT 6 LEAVE AN OFFICE ALWAYS GO UNDER MY SIGNATURE. USUALLY 7 THEY ARE DIRECTED TO THE SPECIAL AGENT IN CHARGE. 8 NORMALLY I WOULD PUT ATTENTION IN THERE. I DON'T HAVE 9 AN ANSWER WHY. 10 Q DID YOU LEARN LATER WHETHER OR NOT MR. POWELL 11 EVER TALKED TO MS. NUNN AS TO WHY SHE PULLED UP THOSE 12 PARTICULAR REPORTS? 13 A I REALLY HAVE VERY LITTLE RECOLLECTION OF THE 14 INCIDENT. 3:23P 15 MR. STENETT: THANK YOU. I HAVE NO OTHER 16 QUESTIONS. 17 DIRECT EXAMINATION 18 BY MR. STUTLER 19 Q GOOD AFTERNOON, MR. PINKAVA. 20 A GOOD AFTERNOON. 21 Q LET ME ASK YOU A LITTLE BIT ABOUT WHEN YOU 22 WERE ASSIGNED TO THE RAC/RIVERSIDE. 23 I AM GOING TO PUT A DEMONSTRATIVE EXHIBIT UP. CAN YOU 24 SEE THAT, MR. PINKAVA? 25 A YES. 54 1 Q ALL RIGHT. THERE IS A NOTATION IN THERE TO 2 SOME EVENTS THAT OCCURRED IN OCTOBER OF 1996. WERE YOU 3 IN THE RAC/RIVERSIDE OFFICE AT THAT POINT, OCTOBER OF 4 1996? 5 A I WAS NOT ASSIGNED THERE YET, NO. 3:24P 6 Q WERE YOU ANYWHERE WITHIN THE LA REGION AT THAT 7 TIME? 8 A WORKING, NO. 9 Q WHERE DID YOU WORK AT THAT TIME? 10 A PHOENIX, ARIZONA. 11 Q AND YOU WERE ASSIGNED TO THE RAC/RIVERSIDE 12 OFFICE IN JANUARY 1997? 13 A THAT'S WHEN I REPORTED FOR DUTY. 14 Q AND THAT WOULD HAVE BEEN AFTER THE PROMOTIONS 15 OF SPECIAL AGENTS PETTIBONE AND PERRY IN THE FALL OF 16 1996? 17 A THAT'S CORRECT. 18 Q DID YOU PARTICIPATE AT ALL IN THE SELECTION 19 PROCESS? 20 A NOT WHATSOEVER. 21 Q YOU DIDN'T HAVE ANY INPUT? 22 A NO. 23 Q TELL ME WHAT DOES -- IF YOU CAN TELL ME, 24 BRIEFLY, WHAT DOES A RAC, A RESIDENT AGENT IN CHARGE 25 DO? WHAT'S YOUR JOB DESCRIPTION? 55 1 A THE RESIDENT AGENT IN CHARGE IS RESPONSIBLE 2 FOR THE OVERALL ADMISSION OF THE OFFICE OF 3 ADMINISTRATIVE ENFORCEMENT, DEVELOPING POLICY, SETTING 4 POLICY FOR THE OFFICE, PROBLEMATIC RESPONSIBILITIES, 5 WHICH SUPERVISING NARCOTICS, GENERAL FRAUD, EXPORT OF 6 WEAPONS, CHILD PORNOGRAPHY. YOU DECIDE HOW MANY 7 RESOURCES ARE TO BE APPLIED AT THE VARIOUS PROGRAMS. 8 MAINLY, AS A RAC, THAT'S IN CONSULT WITH THE GROUP 9 SUPERVISOR, "THIS IS WHAT I WOULD LIKE DONE." AND, OF 10 COURSE, I TAKE CARE OF THE ADMINISTRATIVE PERSONNEL. 3:25P 11 Q YOU HAVE SOMEWHAT OF A LOW VOICE. I AM NOT 12 SURE IF IT'S CARRYING WELL. IF YOU COULD BRING THE MIC 13 IN A LITTLE CLOSER. 14 BEFORE YOU REPORTED AS THE RAC OF RIVERSIDE, 15 THE RESIDENT AGENT IN CHARGE, HOW MANY PEOPLE HAD YOU 16 SUPERVISED WITH CUSTOMS? 17 A THE MOST AT ONE TIME WOULD HAVE BEEN, I WANT 18 TO SAY, 10 TO 12. THE TASK FORCE GROUP, I BELIEVE, WAS 19 THE LARGEST. 20 Q AND WHERE WOULD THAT HAVE BEEN? 21 A IN PHOENIX, ARIZONA. 22 Q WHY DON'T YOU GIVE THE JURY A BRIEF SKETCH OF 23 YOUR CAREER IN CUSTOMS LEADING UP TO YOUR TAKING THE 24 POSITION IN RIVERSIDE? 25 A IN 1987, I TRANSFERRED TO THE CUSTOMS SERVICE. 56 1 I WAS HIRED AS A SPECIAL AGENT. I WAS ASSIGNED TO A 2 FINANCIAL INVESTIGATIONS GROUP. I PRIMARILY WORKED, 3 OVER THE NEXT YEAR, ON A WIRE TAP/COCAINE/MONEY 4 LAUNDERING INVESTIGATION. BASICALLY MY ROLE WAS TO 5 INVESTIGATE THE MONEY LAUNDERING SIDE UNDER WHAT HAD 6 RECENTLY BEEN ENACTED, THE NEW MONEY LAUNDERING LAWS, 7 THE MONEY LAUNDERING ACT OF 1986. 8 IN 1988, I WAS PROMOTED TO GROUP SUPERVISOR. 9 MY FIRST GROUP RESPONSIBILITIES WERE NARCOTICS 10 SMUGGLING, EXPORT OF WEAPONS AND HIGH TECH, GENERAL 11 CUSTOMS FRAUD CASES, CHILD PORNOGRAPHY. BASICALLY, 12 EVERYTHING THAT WAS -- THERE WAS A MONEY LAUNDERING 13 GROUP AND AN AIR SMUGGLING GROUP THAT WORKED SMUGGLING 14 BY PRIVATE AIRCRAFT. I WORKED ALL NARCOTICS EXCEPT 15 PRIVATE AIRCRAFT. I DID THAT FOR ABOUT FIVE OR SIX 16 YEARS AND THEN I WAS REASSIGNED TO THE AIR SMUGGLING 17 GROUP. THERE WERE SOME RE-ORGANIZATIONS. THEY WENT 18 FROM THREE GROUPS TO TWO, SOMEWHERE TWO OR THREE YEARS 19 BEFORE I LEFT, AND THEN, I HAD, I BELIEVE, THE 20 FINANCIAL TASK FORCE I SUPERVISED. 3:27P 21 Q LET'S TALK ABOUT YOUR TIME AT RIVERSIDE. 22 NOW, YOU WOULD HAVE BEEN RIGHT THERE AT RAC/RIVERSIDE? 23 A THAT'S CORRECT. 24 Q AND FOR THE FIRST COUPLE YEARS OF YOUR TENURE 25 THERE IN RIVERSIDE WHO DID YOU REPORT TO? 57 1 A FOR THE FIRST YEAR I WOULD SAY I REPORTED TO 2 DENNIS SHINTANI, ASSISTANT SPECIAL AGENT IN CHARGE. 3 Q HE WAS IN CHARGE OF WHAT? 4 A DENNIS WAS RESPONSIBLE FOR MY OFFICE, ADMIN. 5 Q IS THIS SHINTANI HERE? 6 A YES. 7 Q AND HOW LONG DID THAT LAST? 8 A UNTIL THE FIRST PART OF 1998, WHEN 9 MS. LORAINE BROWN BECAME MY IMMEDIATE SUPERVISOR AS AN 10 ASSOCIATE SAIC. 11 Q THAT WOULD BE THIS FIGURE HERE? 12 A THEY ELIMINATED THE ONE LEVEL OF REVIEW, 13 CORRECT. I DIDN'T REPORT TO A SAIC ANY LONGER. 3:28P 14 Q AND PRIOR TO HER BEING ASSIGNED AS THE 15 ASSOCIATE SAIC, HO MANY ASSOCIATE SAIC'S WERE THERE? 16 A I BELIEVE THERE WAS ONE AND THE OTHER ONE WAS 17 VACANT. 18 Q WHO WAS THAT ONE? 19 A MY RECOLLECTION. OH, WHO WAS IT? 20 Q YES. 21 A STEVE WOODY. 22 Q THANK YOU. BEFORE YOU STARTED AT 23 RAC/RIVERSIDE, DID YOU DO ANY SORT OF RESEARCH ON YOUR 24 NEW ASSOCIATES? 25 A I TOOK THE TIME TO, AS I MENTIONED EARLIER, 58 1 THE TECH SYSTEM BASICALLY HAS ALL THE REPORTS, ALL THE 2 CASES THAT ARE ASSIGNED TO THE PARTICULAR AGENTS IN THE 3 OFFICE. I PULLED UP SOME GENERAL INFORMATION AS TO 4 STATISTICAL ACCOMPLISHMENTS FOR THE OFFICE, SPOKE WITH 5 ROD STOTTINGER, WHO'S THE ACTING RAC, AND PROBABLY HAD 6 CONVERSATIONS WITH OTHER PEOPLE I THOUGHT MAY KNOW 7 SOMETHING ABOUT THE OFFICE. 8 Q DID YOU SPEAK WITH MR. HENSLEY? 3:29P 9 A I BROUGHT OVER -- MR. HENSLEY BROUGHT ME OVER 10 FOR A STAFF MEETING PRIOR TO MY ARRIVAL IN JANUARY, 11 JUST TO MEET THE MANAGEMENT TEAM, AND I TOOK THE 12 OPPORTUNITY TO DRIVE OUT TO RIVERSIDE AND MEET THE 13 FOLKS OUT THERE. YES, I WOULD HAVE SPOKEN TO DENNIS 14 SHINTANI AND JOHN. 15 Q DID EITHER OF THEM MENTION ANY SPECIFIC 16 EMPLOYEE PROBLEMS AT RAC/RIVERSIDE? 17 A NO. 18 Q DID ANY OF THEM MENTION MS. FITZGERALD? 19 A NO. 20 Q HOW LONG DID YOUR MEETING WITH MR. HENSLEY 21 LAST? 22 A IT WAS JUST FIVE MINUTES AT THE CONCLUSION OF 23 THE STAFF MEETING. 24 Q AND DO YOU RECALL JUST A MEETING WITH MR. 25 PERBETSKY BEFORE YOU STARTED AT RAC/RIVERSIDE? 59 1 A I HAD SPOKEN WITH MR. PERBETSKY ON SEVERAL 2 OCCASIONS, BEFORE I ARRIVED, ON THE TELEPHONE. MY 3 RECOLLECTION WAS THE DAY I WAS BROUGHT OUT FOR THE 4 STAFF MEETING, I WAS BROUGHT OUT TO RIVERSIDE, AND, I 5 BELIEVE, MIKE WAS THERE AND INTRODUCED ME TO WHOEVER 6 WAS IN THE OFFICE THAT DAY. 3:30P 7 Q AND BEFORE YOU STARTED AT RAC/RIVERSIDE OR THE 8 RIVERSIDE OFFICE, DID MR. PERBETSKY TELL YOU ANYTHING 9 POSITIVE OR NEGATIVE ABOUT MS. FITZGERALD? 10 A INDIVIDUALLY, NO. 11 Q DID ANYBODY TELL YOU THAT SHE WAS A PROBLEM 12 EMPLOYEE? 13 A NO. 14 Q DID ANYBODY MENTION THAT SHE HAD FILED AN EEO 15 COMPLAINT? 16 A NO. 17 Q BEFORE YOU STARTED, DID YOU HAVE ANY KIND OF 18 PRECONCEIVED IDEAS ABOUT WHAT SORT OF EMPLOYEE MS. 19 FITZGERALD WAS? 20 A NO, I DID NOT. 21 Q LET'S TALK ABOUT YOUR RELATIONSHIP WITH HER 22 AND THE OTHER AGENTS WHEN YOU STARTED AT RAC/RIVERSIDE. 23 HOW LONG HAD YOU BEEN A SUPERVISOR WITH CUSTOMS AT THE 24 TIME YOU WENT TO RIVERSIDE? 25 A I WAS FIRST PROMOTED INTO MANAGEMENT IN APRIL 60 1 OF 1988, IF I -- CLOSE TO NINE YEARS. 2 Q DID YOU OBSERVE ANY KIND OF DIFFERENCES 3 BETWEEN THE WORK ATMOSPHERE AT RIVERSIDE AND WHERE YOU 4 HAD PREVIOUSLY BEEN? 5 A IT WOULD HAVE BEEN OBSERVATIONS FROM PRIOR TO 6 ARRIVING AND SHORTLY THEREAFTER THAT I NOTICED 7 DIFFERENCES, YES. 8 Q AND TELL THE JURY WHAT THOSE DIFFERENCES WERE? 3:31P 9 A WELL, THE DIFFERENCES -- SOME WERE THAT I KNEW 10 THE OFFICE DID NOT HAVE A GLOWING REPUTATION AMONG 11 MANAGEMENT AND CO-WORKERS IN THE LOS ANGELES OFFICE, 12 THE SAN DIEGO OFFICE. AND I HAD EXPERIENCED EVEN 13 BRINGING -- FOR EXAMPLE, WE WOULD BRING CONTROLLED 14 DELIVERIES FROM ARIZONA INTO CALIFORNIA AND THE 15 RIVERSIDE'S OFFICE RESPONSIBILITY EXTENDS RIGHT TO THE 16 RIVER. INVARIABLY WHEN WE WOULD BRING THINGS OVER, WE 17 WEREN'T MET UNTIL WE GOT ALMOST INTO PALM SPRINGS. I 18 RECALL MY AGENTS, WHEN I LEFT, SAID START MAKING THOSE 19 PEOPLE COME OVER TO THE RIVER AND MEET US AND PICK IT 20 UP WHERE THEY SHOULD BE PICKING IT UP. SO, JUST SOME 21 GENERAL PERCEPTION THINGS THAT I THOUGHT WE COULD WORK 22 ON AND GET CORRECTED RIGHT AWAY. 23 Q WHAT ABOUT OBSERVATIONS YOU HAD ABOUT THE 24 RELATIONSHIP BETWEEN THE AGENTS THERE AND MANAGEMENT 25 AND HOW THE PREVIOUS SUPERVISORS WERE RUNNING THE 61 1 OFFICE? 3:32P 2 A IT WASN'T AS STRUCTURED, I GUESS, AS I WOULD 3 HAVE LIKED IT. I HAD THE OPPORTUNITY TO CHANGE THAT. 4 IT WAS MY OFFICE TO RUN NOW. 5 Q DID YOU TALK TO YOUR DAD, WHEN YOU FIRST 6 STARTED, ABOUT ANYTHING THAT YOU OBSERVED. 7 MR. BEBI: OBJECTION, RELEVANCE, YOUR HONOR. 8 THE COURT: OVERRULED. 9 THE WITNESS: JUST A GENERAL OBSERVATION MY 10 FIRST WEEK THERE. IT WAS ABOUT WE -- OFFICE HOURS ARE 11 8:30 TO 5:00. BUT, WE ARE ALL PAID AN ADDITIONAL 25 12 PERCENT, BASICALLY, IN OVERTIME PAY IN ANTICIPATION OF 13 EXTRA HOURS WE ARE GOING TO HAVE TO WORK IF WE ARE 14 DOING A NARCOTIC'S CASE. WE MIGHT WORK EIGHT TO TEN 15 HOURS ONE DAY. SO, WE ARE EXPECTED, AT THE END OF THE 16 YEAR, TO HAVE AVERAGED TWO HOURS OF OVERTIME PER DAY. 17 IN GENERAL, IN PHOENIX, AT THE END OF THE DAY, 18 YOU KNOW, AT LEAST A THIRD OF THE OFFICE WAS STILL 19 THERE BETWEEN 6:00 AND 7:00. AND I WAS THE NEW BOSS, 20 SO, YOU WOULD EXPECT -- YOU WOULD HOPE THAT THE REST OF 21 THEM WOULD WANT TO MAKE A GENERAL IMPRESSION OF THEIR 22 WORK ETHIC TO THE NEW BOSS. IT WAS ABOUT 5:15, AND I 23 CALLED HOME TO THE TEMPORARY QUARTERS WE HAD, AND I 24 SAID, "I AM THE LAST ONE HERE." 3:33P 25 Q DID THAT SURPRISE YOU? 62 1 A YES, IT DID. 2 Q DID YOU MEET WITH THE EMPLOYEES TO INTRODUCE 3 YOURSELF AFTER YOU STARTED? 4 A I HAD A STAFF MEETING, I WANT TO SAY, WITHIN 5 THE FIRST WEEK, TO EXPLAIN MY PRIORITIES, MY GOALS, MY 6 BACKGROUND, WHERE I SAW THE OFFICE, WHERE I WOULD LIKE 7 TO TAKE THE OFFICE TO. 8 Q WHAT DID YOU TELL THEM ABOUT YOUR MANAGEMENT 9 POLICIES? 10 A IN GENERAL, THAT WE COVERED A LOT OF THINGS, 11 BUT ON ISSUES WE ALSO, THIS CASE IN POINT HERE, I 12 DISCUSSED MY POSITION ON EEO, ON A GRIEVANCE. THE 13 NORMAL GRIEVANCE PROCEDURE THAT I THOUGHT THEY WERE 14 GOOD MECHANISMS FOR RESOLVING ISSUES WITHOUT HAVING A 15 LOT OF PERSONAL ACRIMONY. I PERSONALLY DON'T -- I 16 THINK THERE SHOULD BE A SEPARATION BETWEEN MANAGEMENT 17 AND EMPLOYEES. I DON'T SOCIALIZE. I MAKE SURE THEY 18 DON'T MISUNDERSTAND THAT I AM NOT GOING TO BE COMING 19 OVER. I AM NOT GOING TO SPEND A LOT OF TIME WITH THEM, 20 BECAUSE THERE IS APPEARANCES OF FAVORITISM. 21 EVENTUALLY, I MAY HAVE TO DISCIPLINE SOMEONE. HOW DO 22 YOU DISCIPLINE SOMEONE THAT YOU ARE HAVING A STEAK WITH 23 ON FRIDAY? 3:35P 24 Q AND THIS WAS YOUR VERY FIRST MEETING WITH THE 25 EMPLOYEES THERE, AS A GROUP? 63 1 A YES. 2 Q DID ANYBODY VOICE ANY COMPLAINTS ABOUT THE 3 WORKING ENVIRONMENT, AT THE TIME? 4 A YES. AN INDIVIDUAL, I BELIEVE IT AS PERRY 5 JOHNSON, ASKED ME WHAT I WAS GOING TO DO ABOUT THE 6 MORALE PROBLEMS IN THE RIVERSIDE OFFICE. 7 Q WHAT DID YOU SAY TO HIM? 8 A I HAD ONLY BEEN THERE FOR A WEEK AND I WASN'T 9 AWARE OF THE EXTENT OR NATURE OF THE MORALE PROBLEMS. 10 SO, I COULDN'T INTELLIGENTLY RESPOND TO HIM AT THAT 11 POINT IN TIME, BUT I WOULD LOOK INTO IT. 12 Q AND DID YOU HAVE ANY INITIAL IMPRESSIONS OF 13 MS. FITZGERALD AFTER YOU MET HER? 14 A NOT PARTICULARLY. 15 Q DID YOU HAVE ANY CONFLICTS WITH HER THE FIRST 16 TEN MONTHS THAT YOU WERE THERE? 17 A NO. AS PREVIOUSLY TESTIFIED, THERE WERE SOME 18 UNHAPPINESS ON HER PART, I BELIEVE, WITH THE VEHICLE, 19 BUT NOTHING PERSONAL. 20 Q DID YOU EVER HAVE AN UNDERSTANDING OR DID SHE 21 EVER EXPRESS THAT SHE BLAMED YOU FOR THAT IN ANY WAY? 22 A I DON'T BELIEVE SO. 3:36P 23 Q AFTER YOU STARTED, DID MR. HENSLEY EVER 24 INDICATE THAT MS. FITZGERALD'S EEO ACTIVITIES WERE 25 IMPORTANT OR PARTICULARLY SIGNIFICANT TO HIM? 64 1 A I DON'T RECALL EVER HAVING ANY DISCUSSIONS 2 WITH HIM. 3 Q DID HE EVER ASK YOU TO TAKE ANY SORT OF 4 ACTIONS AGAINST HER? 5 A NO. 6 Q DID ANYBODY ABOVE YOU IN THE CHAIN OF COMMAND 7 ASK YOU TO DO THAT? 8 A NO. 9 Q NOT MR. SHINTANI OR MS. BROWN? 10 A NO. 11 Q ANYBODY ASK YOU TO MAKE HER LIFE MISERABLE? 12 A NO. 13 Q ANYBODY ASK YOU TO SHUT DOWN HER 14 INVESTIGATIONS? 15 A NO. 16 Q WERE YOU EVER ASKED OR TOLD TO INTERFERE WITH 17 HER INVESTIGATIONS? 18 A NO, SIR. 19 Q TO REMOVE HER FROM CASES? 20 A NO, SIR. 21 Q WHEN DID YOU FIRST LEARN THAT MS. FITZGERALD 22 WAS INVOLVED IN THE EEO PROCESS? 23 A I RECEIVED AN E-MAIL FROM DENNIS SHINTANI IN 24 APPROXIMATELY AUGUST OF 1997. 25 Q AND WHAT DID YOU LEARN FROM MR. SHINTANI? 65 1 A THAT AN EEO INVESTIGATOR, I BELIEVE HER NAME 2 WAS ROSEANNE VEN -- 3:37P 3 Q VENTRESCO (PHONETIC)? 4 A -- VENTRESCO WOULD BE CONTACTING ME. 5 Q AND DID SHE CONTACT YOU? 6 A YES. I SUBSEQUENTLY MET WITH HER. 7 Q WOULD THAT HAVE BEEN IN AUGUST OF '97? 8 A THAT TIME FRAME, YEAH. 9 Q DID YOU HAVE AN UNDERSTANDING WHETHER OR NOT 10 MS. FITZGERALD WAS UPSET, AT THAT TIME, ABOUT ANYTHING 11 YOU HAD DONE? 12 A NO, I THINK SHE SPECIFICALLY EXCLUDED ME FROM 13 HER CONCERNS. 14 Q I AM SORRY. 15 A SHE INDICATED IN THE COMPLAINT, APPARENTLY, 16 THAT I WAS NOT PART OF THE PERCEIVED PROBLEM THAT SHE 17 HAD AT THAT TIME. 18 Q WHAT WAS YOUR UNDERSTANDING OF WHAT SHE WAS 19 COMPLAINING ABOUT AS OF AUGUST OF '97? 20 A IT SEEMED TO ME THE PRIMARY FOCUS WAS THE '96 21 PROMOTION. 22 Q AND THAT WAS BEFORE YOU GOT TO RIVERSIDE? 23 A CORRECT. 24 Q LET'S TALK ABOUT THE CAR ASSIGNMENT IN JUNE OF 25 1997. HOW WOULD YOU DESCRIBE YOUR RELATIONSHIP WITH 66 1 MS. FITZGERALD AS OF THAT TIME, JUNE OF 1997? 2 A GOOD. 3 Q YOU HAD BEEN RUNNING THE OFFICE ABOUT SIX 4 MONTHS THEN? 5 A THAT'S CORRECT. 6 Q HAD YOU HAD ANY CONFLICTS WITH HER? 3:38P 7 A NOT THAT I RECALL. 8 Q ANY COMPLAINTS FROM HER ABOUT HOW SHE WAS 9 BEING TREATED? 10 A NO. 11 Q WHAT ABOUT FROM HER CO-WORKERS ABOUT HOW SHE 12 WAS BEING TREATED? 13 A NOT THAT I RECALL. 14 Q EVERYTHING WAS FINE AS FAR AS YOU COULD TELL? 15 A YES. 16 Q AND DID YOU KNOW AS OF JUNE 1997, THAT SHE WAS 17 INVOLVED IN THE EEO PROCESS? 18 A IN JUNE OF '97? 19 Q YES. 20 A NO, I WAS NOT. 21 Q YOU FOUND OUT A COUPLE MONTHS LATER, RIGHT? 22 A IN AUGUST, YES. 23 Q WERE YOU INVOLVED IN ASSIGNING VEHICLES TO 24 AGENTS IN YOUR OFFICE IN 1997? 25 A I WAS INVOLVED FROM THE STANDPOINT ONCE THEY 67 1 GOT TO ME, I MADE THE PHYSICAL ASSIGNMENT AND 2 NOTIFICATION. BUT, THE VEHICLES BASICALLY CAME OUT 3 PRE-ASSIGNED FROM LOS ANGELES. 4 Q SOMEBODY IN LOS ANGELES WAS MAKING THE 5 ASSIGNMENTS AND THEY WOULD SEND THE VEHICLES TO YOU AND 6 WHOEVER THEY WERE ASSIGNED TO YOU WOULD GIVE THEM THAT 7 CAR? 8 A THAT'S CORRECT. 9 Q DO YOU KNOW WHO WAS RESPONSIBLE FOR MAKING 10 ASSIGNMENTS? 11 A JUDY HOFFMAN. 12 Q NOW, WERE YOU AWARE THAT AGENT JOHNSON HAD 13 RECEIVED A NEWER MODEL OF CAR THAN MS. -- WHETHER HE 14 HAD RECEIVED A NEWER MODEL OF CAR THAN MS. FITZGERALD 15 IN JUNE OF 1997? 3:39P 16 A MR. JOHNSON RECEIVED A REPLACEMENT CAR THAT 17 MONTH. IT WOULD HAVE BEEN NEWER THAN THE VEHICLE SHE 18 WAS DRIVING WHEN I GOT THERE, BUT OLDER THAN THE 19 VEHICLE SHE WAS ASSIGNED IN JULY. 20 Q DID SHE GET A BRAND NEW CAR? 21 A YES. 22 Q WAS HIS CAR BRAND NEW? 23 A NO, IT WAS A REASSIGNMENT FROM A LOS ANGELES 24 AGENT. 25 Q LET'S JUMP OVER TO OCTOBER 1997. IN THAT 68 1 MONTH, MS. FITZGERALD ASKED YOU TO REVIEW HER CAAPS 2 SCORES FOR A GS-13 PROMOTION? 3 A THAT'S CORRECT. 4 Q MR. PERBETSKY WAS SUPPOSED TO DO THAT? 5 A CORRECT. 6 Q WHY WAS HE SUPPOSED TO DO IT? 7 A HE WAS THE GROUP SUPERVISOR AND THAT WAS THE 8 POLICY. 9 Q DID SHE SAY WHY SHE PREFERRED YOU TO MR. 10 PERBETSKY? 11 A SHE FELT THAT HER SCORE ON THE '96 APPLICATION 12 HAD BEEN MODIFIED IN SOME WAY. AND SHE FELT THAT SHE 13 WOULD GET A FAIR VERIFICATION IF I HAD CONDUCTED IT. 3:40P 14 Q I AM GOING TO HAND YOU A DOCUMENT THAT'S BEEN 15 MARKED AS EXHIBIT AC. DO YOU RECOGNIZE THIS DOCUMENT? 16 A YES, SIR. 17 Q TELL ME WHAT IT IS, PLEASE? 18 A IT'S A MEMO FROM DARLENE FITZGERALD-CATALAN TO 19 ME. 20 Q IS THIS HER REQUEST THAT YOU VERIFY HER SCORES 21 IN OCTOBER OF 1997? 22 A YES. I AM SORRY. YES, IT IS. 23 Q I DON'T BELIEVE THIS IS IN EVIDENCE YET. 24 MR. BEBI: I THINK IT IS. 25 MADAM CLERK: IT IS. 69 1 MR. STUTLER: IT'S IN EVIDENCE? 2 MADAM CLERK: YES. 3 BY MR. STUTLER: 4 Q SHE SAYS, IN THE SECOND SENTENCE, "I FEEL, IN 5 LIGHT OF MY RECENT EEO COMPLAINT AGAINST THE PRECEDING 6 RAC/RIVERSIDE MANAGEMENT --" DID YOU UNDERSTAND THAT 7 MEANT TO REFER TO SOMEBODY OTHER THAN YOU? 3:41P 8 A THAT'S CORRECT. 9 Q "-- MY WORK WILL NOT BE GIVEN THE OBJECTIVE 10 SCORING THAT IS DESERVING." 11 DID HE SHE EVER TELL YOU THAT SHE FELT YOU 12 WERE NOT OBJECTIVE? 13 A ME PERSONALLY? NO. 14 Q DID SHE EVER TELL YOU THAT SHE DIDN'T BELIEVE 15 ANY OF WHAT SHE HAD WRITTEN HERE? 16 A NO. 17 Q PRIOR TO THIS TIME, DID SHE EVER EXPRESS ANY 18 DOUBTS AS TO YOUR FAIRNESS OR OBJECTIVITY? 19 A NO. 20 Q THE SECOND PARAGRAPH BEGINS, "THIS REQUEST IN 21 NO WAY INSINUATES THAT YOU HAD ANY PART IN MY 22 COMPLAINT. I HAVE MADE IT VERY CLEAR THAT MY COMPLAINT 23 INVOLVED CIRCUMSTANCES THAT OCCURRED BEFORE YOUR 24 ARRIVAL AS THE RAC." DID SHE EVER TELL YOU THAT SHE 25 THOUGHT YOU HAD DONE SOMETHING WRONG AS OF THIS POINT 70 1 IN TIME, OCTOBER OF '96? 2 A NO, I BELIEVE SHE PROVIDED ME WITH A COPY OF 3 HER COMPLAINT. 3:42P 4 Q AS OF THIS DATE, DID ANYBODY ABOVE YOU IN THE 5 CHAIN OF COMMAND EVER PRESSURE YOU OR TOLD YOU TO TAKE 6 ANY RETALIATORY ACTION AGAINST HER? 7 A NO. 8 THE COURT: MR. STUTLER, LET ME INTERRUPT YOU 9 FOR JUST A SECOND. IT SEEMS TO ME THAT YOU SAID '96. 10 DID YOU MEAN TO SAY '97? 11 MR. STUTLER: I DID. THANK YOU, YOUR HONOR. 12 THE COURT: I JUST WANT TO MAKE SURE THAT THE 13 RECORD IS CLEAR. OKAY. 14 BY MR. STUTLER: 15 Q I GUESS WHAT I WAS REFERRING TO IS THE FIRST 16 PART OF THE SECOND PARAGRAPH. AS OF OCTOBER OF 1997, 17 IT WAS YOUR UNDERSTANDING THAT SHE HAD NO COMPLAINTS 18 AGAINST YOU, IS THAT CORRECT? 19 A THAT'S CORRECT. 20 Q ALL RIGHT. AS OF 1997, OCTOBER, HAD ANYBODY 21 ABOVE YOU IN THE CHAIN OF COMMAND EVER PRESSURE TO YOU 22 TO TAKE RETALIATORY ACTION AGAINST HER? 23 A NO, SIR. 24 Q THE WHOLE TIME SHE WAS THERE DID ANYBODY ABOVE 25 YOU IN THE CHAIN OF COMMAND EVER ASK, TELL OR 71 1 IMPLICITLY REQUIRE YOU OR DESIRE OF YOU TO TAKE ANY 2 RETALIATORY ACTION AGAINST MS. FITZGERALD? 3:43P 3 A NO. 4 Q THE ENTIRE TIME THAT YOU SUPERVISED MS. 5 FITZGERALD, AS A RESIDENT AGENT IN CHARGE, DID ANYBODY 6 BELOW YOU EVER ASK YOU TO RETALIATE AGAINST HER? 7 A NO, SIR. 8 Q WHAT DID YOU DO WHEN YOU RECEIVED THIS REQUEST 9 FROM MS. FITZGERALD, THIS EXHIBIT AC? 10 A I DISCUSSED IT WITH DENNIS SHINTANI, MY 11 IMMEDIATE SUPERVISOR, AND I INITIATED A CALL TO MS. 12 MORALES. 13 Q AND I THINK YOU TESTIFIED EARLIER THAT YOU GOT 14 MS. MORALES INVOLVED -- WHY DON'T YOU TELL ME WHY DID 15 YOU GET MS. MORALES INVOLVED? 16 A WELL, AS IT STATES IN THE FIRST PARAGRAPH, SHE 17 WAS REQUESTING THAT ROSEANNE VENTRESCO, THE OLD 18 INVESTIGATOR, BE PRESENT AS A WITNESS. 19 Q HAD YOU EVER, IN YOUR EXPERIENCE AT CUSTOMS, 20 SEEN AN EEO INVESTIGATOR, WITNESS ANYTHING LIKE THIS? 21 A NO. TO ME, I BELIEVE IT WAS OUTSIDE THE SCOPE 22 OF THEIR DUTIES. 23 Q AND THEN YOU TALKED TO MR. SHINTANI? 3:44P 24 A YES, I DID. 25 Q WHO MADE THE DECISION THAT YOU MADE REGARDING 72 1 HER LETTER? 2 A I BELIEVE I MADE THE DECISION WITH MR. 3 SHINTANI'S CONCURRENCE. I TOLD HIM WHAT I WAS GOING TO 4 DO. 5 Q WHAT WAS THAT DECISION? 6 A MY DECISION WAS TO HAVE MR. PERBETSKY MEET 7 WITH DARLENE AND THE OTHER CANDIDATES WHO WERE 8 APPLYING, VERIFY THEIR SCORES, AND IF THERE WERE ANY -- 9 I WANT TO SAY, THERE COULD HAVE BEEN 100 QUESTIONS THAT 10 YOU NEEDED TO RESPOND TO THAT BASICALLY ADDRESSED YOUR 11 BACKGROUND AND ABILITIES AND EXPERIENCE. IF THERE WERE 12 ANY THAT THEY COULD, WHEN THEY BROUGHT THE VERIFICATION 13 IN, THAT MIKE AND THE AGENT COULDN'T COME TO AN 14 AGREEMENT AS TO WHAT LEVEL OF EXPERIENCE THEY WERE 15 CLAIMING, THERE WERE LIKE FOUR OR FIVE LEVELS, THAT 16 THEY WOULD BRING THOSE INDIVIDUAL LINE ITEMS TO ME AND 17 I WOULD HELP RESOLVE IT. 18 Q AND WHY DID YOU DO THAT? WHY NOT JUST DO IT 19 YOURSELF? 20 A I FELT IT WAS A FAIR SYSTEM FOR EVERYONE. NOT 21 JUST DARLENE IF, IN FACT, THERE WERE ISSUES THAT THE 22 AGENT FELT THAT THEY DESERVED MORE CREDIT FOR, THAT'S 23 MY JOB. 3:46P 24 Q ALL RIGHT. WHY DIDN'T YOU JUST SAY, "ALL 25 RIGHT, DARLENE. I WILL LOOK AT YOURS, BUT NOT THE 73 1 OTHER PEOPLES?" 2 A BECAUSE THAT WOULD BE CHANGING THE POLICY THAT 3 HAD BEEN SET OUT BY HEADQUARTERS FOR THE APPLICATION 4 PROCESS. 5 Q DIDN'T YOU EXPLAIN YOUR REASONS FOR YOUR 6 DECISIONS TO MS. FITZGERALD? 7 A YES, I BELIEVE I DID. 8 Q DID SHE GIVE ANY INDICATION THAT SHE 9 UNDERSTOOD YOUR DECISION? 10 A YES. 11 Q DO YOU RECALL WHAT SHE SAID? 12 A NOT SPECIFIC WORDS, BUT, YES, I GOT THE 13 GENERAL IMPRESSION SHE UNDERSTOOD. 14 Q DID SHE EVER TAKE YOU UP ON YOUR OFFER? 15 A I DON'T RECALL -- I RECALL, AND I DON'T 16 BELIEVE IT WAS JUST DARLENE'S, BUT THERE WAS A QUESTION 17 ABOUT WHAT LEVEL OF EXPERIENCE WOULD BE AFFORDED PEOPLE 18 WHO HAD -- THERE WAS AN ITEM ON THERE FOR UNDERCOVER 19 EXPERIENCE. AND ONE OF THE LEVELS -- TO CLAIM JUST 20 MINIMUM, THERE WAS A QUESTION WHETHER INDIVIDUALS WHO 21 HAD MADE UNDERCOVER PHONE CALLS, ASSUMING THE IDENTITY 22 OF SOMEONE ELSE, OR CALLING SOMEONE UNDER SOME PRETEXT, 23 WHETHER THAT QUALIFIED FOR THE MINIMUM. AND I WASN'T 24 SURE EITHER, AND I KNOW I HAD MIKE PERBETSKY CONTACT 25 HEADQUARTERS. WE CALLED OTHER SUPS THAT WERE DOING THE 74 1 PROCESS, AND RESOLVED THAT, YES, THEY WERE ALLOWED TO 2 CLAIM THAT QUALIFIED FOR THE MINIMAL. THAT ONE STICKS 3 OUT IN MY MIND. 3:47P 4 Q OKAY. DO YOU RECALL ANY OTHER COMMENTS ABOUT 5 THE PROCESS FROM ANY OTHER -- 6 A THERE WERE VERY FEW. PROBABLY THREE OR FOUR. 7 NOT THAT THEY WERE BROUGHT TO ME, BUT THAT MR. 8 PERBETSKY TALKED TO HEADQUARTERS TO GET GUIDANCE, AND 9 SPOKE WITH OTHER MANAGERS THAT WERE DOING IT TO SEE HOW 10 IT WAS BEING SCORED IN OTHER OFFICES. 11 Q DO YOU RECALL SPECIFICALLY MS. FITZGERALD 12 COMING TO YOU TO COMPLAIN ABOUT MR. PERBETSKY'S SCORES? 13 A NO, NOT PARTICULARLY. 14 Q AND MR. PERBETSKY RETIRED A FEW YEARS LATER? 15 A HE RETIRED AROUND FEBRUARY OF '98. SO, 16 PROBABLY FOUR MONTHS LATER. 17 Q AND PRIOR TO HIS RETIREMENT, DID MS. 18 FITZGERALD COMPLAIN ABOUT ANYTHING HE HAD DONE TO HER 19 OTHER THAN PERHAPS THIS CAAPS SCORE? 20 A THE SCORE FROM '96, OR THIS VERIFICATION 21 PROCESS? 22 Q LET ME REASK THE QUESTION. IT MAY HAVE BEEN A 23 LITTLE BIT GARBLED. 24 OTHER THAN, PERHAPS, THIS LETTER YOU RECEIVED 25 IN OCTOBER OF '97, DID MS. FITZGERALD COMPLAIN TO YOU 75 1 ABOUT ANYTHING MR. PERBETSKY HAD DONE BEFORE HE 2 RETIRED? 3:48P 3 A NO, I DON'T BELIEVE HE WAS ADDRESSED 4 SPECIFICALLY IN THIS EITHER. 5 Q OR IN ANY OTHER MEANS? 6 A NO. 7 Q LET'S JUMP ANOTHER FIVE OR FOUR MONTHS TO 8 MARCH 26, 1998. THERE HAS BEEN TESTIMONY ABOUT A 9 PAGING INCIDENT DURING AN EEO MEETING. IN YOUR 10 EXPERIENCE, WHAT PROCEDURE WAS ORDINARILY FOLLOWED BY 11 AN EMPLOYEE WHO WANTED TO USE OFFICIAL TIME FOR EEO 12 MATTERS? 13 A THE POLICY OF THE CUSTOMS SERVICE WAS TO 14 AFFORD EMPLOYEES A REASONABLE AMOUNT OF TIME TO MEET 15 WITH THE EEO COUNSELORS, INVESTIGATORS, WHOEVER IT MAY 16 BE. THEY MERELY WERE REQUIRED TO NOTIFY THEIR 17 SUPERVISOR TO MAKE SURE IT DIDN'T CONFLICT WITH ANY 18 WORK ASSIGNMENTS, AND THEY WERE GIVEN A REASONABLE 19 AMOUNT OF TIME TO FOLLOW-UP. 20 Q SO, THEY WOULD CONTACT THE SUPERVISOR, NOTIFY 21 THEM, AND IF THERE WAS NO REASON NOT TO LET THEM HAVE 22 THE TIME, THE SUPERVISOR WOULD LET THEM HAVE THE TIME? 3:49P 23 A YES, IF YOU HAD A SURVEILLANCE, NEEDED A BODY, 24 BUT I CAN'T RECALL EVER NOT AFFORDING SOMEONE THE TIME. 25 Q WAS IT THE OBLIGATION OF THE EMPLOYEE OR THE 76 1 EEO COUNSELOR TO GET PERMISSION OR GET THIS KIND OF 2 NOTATION? 3 A IT WOULD BE THE EMPLOYEE'S RESPONSIBILITY. 4 Q WHAT IF SHE WANTED TO BE CONFIDENTIAL IN THE 5 EEO PROCESS, WHAT COULD SHE DO? 6 A IF YOU WERE ON ANNUAL LEAVE, I HAVE NO 7 KNOWLEDGE OF YOUR WHEREABOUTS. 8 Q NOW, THERE HAS BEEN TESTIMONY THAT ON MARCH 9 24, 1998, MS. FITZGERALD ARRANGED TO MEET WITH AN EEO 10 COUNSELOR NAMED RAY JENSON, IN LONG BEACH, TWO DAYS 11 LATER, ON MARCH 26TH. DID SHE CONTACT YOU ON MARCH 12 24TH, TO GET PERMISSION? 13 A NO, SHE DID NOT. 14 Q DID SHE CONTACT YOU ON MARCH 25TH, TO GET 15 PERMISSION? 16 A NO. 17 Q DID SHE SPEAK WITH YOU ON MARCH 26TH, TO GET 18 PERMISSION TO MISS WORK? 3:50P 19 A NO. 20 Q DID SHE GET PERMISSION AT ALL, WHETHER OR NOT 21 IN ADVANCE, TO MISS WORK THAT DAY? 22 A I DON'T BELIEVE SO. 23 Q DID SHE SCHEDULE A VACATION DAY ON MARCH 26TH? 24 A NO. 25 Q DID SHE EVEN NOTIFY YOUR OFFICE IN ADVANCE OF 77 1 MARCH 26TH, THAT SHE WASN'T GOING TO BE THERE? 2 A MY RECOLLECTION IS AT SOME POINT SHE MADE SOME 3 NOTIFICATION TO THE ACTING SUPERVISOR. 4 Q AND DO YOU RECALL WHAT DAY SHE DID THAT? 5 A THE SAME DAY THAT SHE FAILED TO REPORT. 6 Q DID YOU DISCIPLINE HER FOR NOT GETTING 7 PERMISSION OR TAKING A VACATION DAY? 8 A NO, I DID NOT. 9 Q WHY NOT? 10 A IF IT HAD BEEN HANDLED PROPERLY, I WOULD HAVE 11 ALLOWED THE TIME. SO, IT WAS NOT, LIKE I SAID EARLIER, 12 I DON'T DISCIPLINE FOR EVERY INFRACTION. 13 Q WELL, THERE MUST HAVE BEEN SOME REPERCUSSIONS 14 FOR HER MISSING A DAY OFF WITHOUT EVEN GETTING 15 PERMISSION? 16 A NO, SIR. 17 Q YOU TOOK NO ACTION AGAINST HER AT ALL? 18 A NO. 19 Q HOW DID YOU FIND OUT THAT SHE WASN'T GOING TO 20 BE AT WORK THAT DAY? 3:51P 21 A AT SOME POINT, I DON'T RECALL THE SPECIFICS, 22 WE HAD CONVERSATIONS WITH THE ACTING SUPERVISOR, HOW I 23 BECAME AWARE THAT SHE WASN'T IN. I MAY HAVE JUST ASKED 24 THE QUESTION WHERE IS THE EMPLOYEE AT. AT SOME POINT, 25 FRANK LET ME KNOW THAT SHE HAD SOME INVOLVEMENT WITH AN 78 1 EEO MATTER. 2 Q WHEN YOU REFER TO THE ACTING SUPERVISOR AND 3 FRANK, WE ARE TALKING ABOUT FRANK DAY? 4 A YES, SIR. 5 Q WHAT TIME DID HER WORKDAY START, MS. 6 FITZGERALD? 7 A 8:30. 8 Q WHEN YOU FOUND OUT, DID YOU IMMEDIATELY 9 CONTACT HER? 10 A NO, I DID NOT. 11 Q DID YOU HAVE ANY IDEA WHEN SHE WOULD BE BACK? 12 A NO, I -- BASED ON MY EXPERIENCE, I ASSUMED IT 13 WOULD TAKE A COUPLE OF HOURS. 14 Q WAS SHE BACK BY NOON? 15 A NO. 16 Q BY 1:00? 17 A NO. 18 Q 2:00? 19 A NO, SIR. 20 Q 3:00? 21 A NO. 22 Q DID THAT BOTHER YOU? 23 A YES. 24 Q WHY? 25 A BECAUSE I FELT IF SHE WAS -- WITH MY -- 79 1 ACTUALLY, NORMALLY A WITNESS INTERVIEW OR AN INTERVIEW 2 WOULD ONLY TAKE A COUPLE OF HOURS, AND IT WOULD HAVE 3 BEEN INTO WORK BY 10:30 OR SO. 3:52P 4 Q DURING ALL THAT TIME, DID SHE CONTACT YOU ONCE 5 TO LET YOU KNOW WHEN SHE WOULD BE BACK? 6 A NO. 7 Q AND AT SOME POINT, DID YOUR OFFICE CONTACT 8 HER? 9 A I INSTRUCTED FRANK DAY, APPROXIMATELY, AROUND 10 3:00 O'CLOCK THAT DAY, TO PAGE DARLENE TO FIND OUT, 11 BECAUSE IT WAS NOT FOLLOWING NORMAL PROTOCOL. 12 Q AND BEFORE YOU DID THAT, DID YOU MAKE ANY KIND 13 OF EFFORT TO FIND OUT WHERE SHE WAS OR VERIFY THE 14 INFORMATION THAT YOU HAD? 15 A AT SOME POINT, AFTER FRANK TOLD ME, PROBABLY 16 GETTING CLOSE TO NOON, WHEN WE WERE GETTING INTO THREE 17 OR FOUR HOURS ABSENCE, I CONTACTED ANNA MORALES TO FIND 18 OUT WHY THIS WAS TAKING SO LONG. NOT SO MUCH WHY IT 19 WAS TAKING SO LONG, BUT IF SHE WAS AWARE, YOU KNOW -- 20 WE HAD NO INFORMATION, OTHER THAN A VOICE MAIL, I 21 BELIEVE, FRANK HAD GOTTEN, SAYING I AM DEALING WITH 22 EEO, WHICH -- SO, I HAD NO WAY TO CONFIRM, DENY 23 ANYTHING. 3:53P 24 Q TELL THE JURY WHO'S ANNA MORALES? 25 A ANNA MORALES WAS AN EEO REGIONAL. I WAS 80 1 MERELY HOPING TO FIND OUT, "YES, I ASSIGNED AN 2 INVESTIGATOR MEETING WITH DARLENE." MAYBE THEY WOULD 3 HAVE TOLD ME IT'S GOING TO TAKE ALL DAY. 4 Q LET ME STOP YOU THERE. THIS REGIONAL EEO 5 COORDINATOR DOES SHE FALL SOMEWHERE UNDER THIS PURVIEW 6 OF MS. HENSLEY? 7 A NO. 8 Q SHE IS IN A SEPARATE CHAIN OF COMMAND? 9 A YES. 10 Q WOULD SHE CONFIRM FOR YOU THAT MS. FITZGERALD 11 DID HAVE A MEETING IN LONG BEACH? 12 A NO. 13 Q DID SHE TELL YOU ANYTHING ABOUT THAT? 14 A SHE HAD NO KNOWLEDGE OF WHAT -- OF ANY 15 ASSIGNED -- SHE MAKES ASSIGNMENTS OF EEO MATTERS FILED 16 IN LA. SHE ASSIGNS THEM TO THE COUNSELORS AND 17 INVESTIGATORS. BUT, SHE WAS UNAWARE OF ANY ACTIVITY 18 TAKING PLACE THAT DAY. 19 Q WHERE WAS MS. MORALES' OFFICE AT THAT TIME? 20 A LONG BEACH, CALIFORNIA. 21 Q AND YOU LATER CAME TO FIND OUT THAT MS. 22 FITZGERALD HAD SET UP A MEETING DIRECTLY WITH 23 MR. JENSEN? 3:54P 24 A I DON'T KNOW IF IT WAS DIRECTLY -- YEAH. 25 Q HE IS NOT FROM LONG BEACH? 81 1 A NO, HE IS FROM ARIZONA. 2 Q AND YOU HAD MR. DAY PAGE MS. CATALAN? 3 MS. FITZGERALD? 4 A THAT'S CORRECT. 5 Q WHAT HAPPENED THEN? 6 A AT SOME POINT IN TIME, THEY ASKED ME IF I 7 WOULD BE WILLING TO SPEAK WITH MR. JENSEN AND HE WAS ON 8 THE PHONE. 9 Q WAS THAT MR. DAY, YOU MEAN? 10 A YES. 11 Q DID YOU TRY TO INTIMIDATE MR. JENSEN? 12 A NO. 13 Q IS HE UNDER YOU IN THE CHAIN OF COMMAND? 14 A NO, HE WORKED FOR THE OFFICE OF FIELD 15 OPERATION. 16 Q IS HE SOMEWHERE IN THIS PYRAMID, THEN? 17 A NO. 18 Q DO YOU KNOW WHAT HIS POSITION WAS OR HAD AN 19 UNDERSTANDING OF WHAT HIS POSITION WAS? 20 A I BELIEVE HE WAS THE PORT DIRECTOR IN 21 LOOPVILLE, ARIZONA. 22 Q SO, YOU HAD NO CONTROL OR AUTHORITY OVER THIS 23 MAN? 24 A NO, SIR. 25 Q WHAT DID YOU DISCUSS WITH HIM THAT DAY? 82 1 A I DON'T RECALL THE SPECIFICS. BUT GENERALLY, 2 I HAD QUESTIONED WHY, YOU KNOW, HE HADN'T COME TO 3 RIVERSIDE TO CONDUCT THE INTERVIEW, WHICH WOULD HAVE 4 SAVED FOUR HOURS OF DRIVE TIME. IT WOULD HAVE 5 SHORTENED THE TIME NECESSARY, GENERAL WORK RELATED, YOU 6 KNOW, QUESTIONS. 3:56P 7 Q IS THAT THE USUAL PROCEDURE? 8 A WELL, I HAD NEVER ENCOUNTERED THAT TYPE OF 9 SITUATION BEFORE. 10 Q YOU NEVER HAD AN EEO COUNSELOR COME TO ONE OF 11 YOUR OFFICES? 12 A NO, THAT'S THE NORMAL PROCEDURE. I THOUGHT 13 YOU MEANT THE TIME. 14 Q HOW DID THE CONVERSATION END WITH MR. JENSEN 15 AT THE END OF THAT DAY? 16 A HE AND I AGREED HE WOULD COME TO THE RIVERSIDE 17 OFFICE THE FOLLOWING DAY TO EXPLAIN WHY HE HANDLED 18 DELIVERY. 19 Q DID YOU MEET WITH HIM THAT DAY? 20 A YES, I DID. 21 Q WHAT DID HE TELL YOU THEN? 22 A HE TOLD ME THAT HE ASSUMED THAT THE EMPLOYEE 23 THAT HE HAD MET WITH HAD MADE ARRANGEMENTS FOR TIME OR 24 MADE ARRANGEMENTS TO TAKE ANNUAL LEAVE THAT DAY. IT'S 25 NOT HIS ROLE TO VERIFY THAT THEY, IN FACT, FOLLOWED 83 1 PROCEDURE. AND WHEN I HAD TALKED TO HIM, THE 2 INDIVIDUAL HE WAS MEETING WITH HAD REQUESTED ANONYMITY. 3 HE WAS KIND OF IN A CATCH 22. HE WAS MEETING, COULDN'T 4 EXPLAIN WHAT WAS GOING ON BECAUSE SHE REQUESTED 5 ANONYMITY, BUT HE HAD LEGITIMATE QUESTIONS AS TO THE 6 WHEREABOUTS OF MY EMPLOYEES. 3:57P 7 Q WERE YOU SATISFIED WITH HIS EXPLANATION? 8 A YES. 9 Q DID HE TELL YOU HE FELT INTIMIDATED BY THE 10 FIRST CALL? 11 A NO. 12 Q WAS HE QUIVERING, VOICE QUIVERING, ANYTHING 13 LIKE THAT? 14 A NO, SIR. 15 Q WASN'T PAIL? 16 A NO, SIR. 17 Q GETTING BACK TO THE 26TH, THE DAY BEFORE YOU 18 MET PERSONALLY WITH MR. JENSEN, DID YOU INSTRUCT MR. 19 DAY TO CALL MS. FITZGERALD LATER THAT EVENING? 20 A NO. 21 Q DID YOU KNOW HE WAS GOING TO CALL HER? 22 A NO, I DID NOT. 23 Q DID HER DEMEANOR CHANGE TOWARD YOU AFTER THE 24 MARCH 26 INCIDENT? 25 A YES. 84 1 Q HOW SO? 2 A JUST NOT AS OPEN. NOT AS -- 3 Q DID HER ATTITUDE CHANGE TOWARD YOU? 4 A I TALKED OVER -- COOLER. IT WAS COOLER. 5 Q DID YOUR ATTITUDE TOWARD HER CHANGE AS A 6 RESULT OF THE PAGING INCIDENT? 7 A I DON'T BELIEVE SO. 8 Q AND ARE YOU FAMILIAR WITH THE OPERATION CALLED 9 T&L INTERNATIONAL ENTERPRISES? 3:58P 10 A I AM VERY FAMILIAR WITH IT. 11 Q WHAT DOES T&L STAND FOR? 12 A T&L IS -- MY UNDERSTANDING THE T AND THE L 13 WERE THE FIRST LETTERS OF THE TWO -- OF TWO INDIVIDUALS 14 LAST NAMES, T&L ENTERPRISES INCORPORATED. IT WAS 15 BASICALLY A SHELL COMPANY. 16 Q AND IT ALSO HAD AN INDEPENDENT MEETING IN YOUR 17 OFFICE. T&L ENTERPRISES WAS THE NAME OF THE CASE? 18 A IT WAS A CASE WE REFERRED TO EARLIER, THE 19 TANKER CASE. 20 Q ONE OF MS. FITZGERALD'S CLAIMS IN THIS CASE IS 21 THAT YOU INTERFERED WITH HER EFFORTS TO CONTRADICT HER 22 REGARD TO CONTRABAND SUCH AS DRUGS, IN ORDER TO 23 RETALIATE AGAINST HER. LET ME ASK YOU DIRECTLY. IN 24 YOUR CAREER AS A PROFESSIONAL LAW ENFORCEMENT OFFICER 25 FOR THE UNITED STATES OF AMERICA, HAVE YOU EVER ALLOWED 85 1 DRUG TRAFFICKERS TO SMUGGLE DRUGS INTO THIS COUNTRY 2 BECAUSE DARLENE FITZGERALD HAD COMPLAINED THAT THE 3 GOVERNMENT HAD NOT GIVEN HER A NEW CAR FAST ENOUGH? 4 A ABSOLUTELY NOT. 3:59P 5 Q WOULD YOU JEOPARDIZE THE SECURITY OF THIS 6 NATION BECAUSE SHE COMPLAINED THAT WOULD NOT VERIFY HER 7 CAAP SCORES INSTEAD OF MR. PERBETSKY? 8 A NO. 9 Q WOULD YOU RISK YOUR FREEDOM AND CAREER BECAUSE 10 SHE COMPLAINED ABOUT NOT BEING PROMOTED? 11 A ABSOLUTELY NOT. 12 Q AND DID YOU INTERFERE WITH HER INVESTIGATION 13 TO RETALIATE AGAINST HER FOR EEO ACTIVITY? 14 A NO. 15 Q LET ME ASK YOU THIS: WHEN SOMEONE ON YOUR 16 TEAM, LIKE MS. FITZGERALD, SUCCESSFULLY INTERCEPTS A 17 MAJOR SHIPMENT OF DRUGS, DOES THAT REFLECT ON YOU AS 18 RANKING -- 19 A IT REFLECTS FAVORABLY ON EVERYONE IN THE 20 OFFICE. 21 Q DO YOU GET ANY KIND OF DIRECT OR INDIRECT 22 BENEFIT FROM THAT? 23 A INDIRECTLY THE MORE SUCCESSFUL THE OFFICE 24 IS -- I AM GOING TO HAVE THE ABILITY TO, WHEN I WORK 25 THROUGH LOS ANGELES, TO GET PROMOTIONS FOR INDIVIDUALS. 86 1 TO GET AWARDS APPROVED. THAT'S BASICALLY WHAT WE DO. 2 THE ULTIMATE GOAL IS TO MAKE CASES. 4:00P 3 Q IN THOSE STATISTICS, DO THEY PLAY A PART IN 4 YOUR INVOLVEMENT OR YOUR CAREER? 5 A THEY CAN, YES. 6 Q WOULD YOU BE HURTING YOURSELF IF YOU 7 INTERFERED WITH ONE OF YOUR SUBORDINATE'S EFFORTS TO 8 (INAUDIBLE) DRUGS OR OTHER CONTRABAND? 9 A YES. 10 Q ABOUT APRIL 18, 1998, YOU TERMINATED THE 11 SURVEILLANCE ON A RAILROAD CAR THAT MS. FITZGERALD HAD 12 HELPED SEIZE, IS THAT CORRECT? 13 A THAT'S CORRECT. 14 Q AND DO YOU KNOW SURVEILLANCE BY ANOTHER TERM, 15 "CONTROLLED DELIVERY," IS THAT CORRECT? 16 A CONTROLLED DELIVERY IS A FORM OF UTILIZING 17 SURVEILLANCE TECHNIQUES, YES. 18 Q SO, THE -- AFTER THE CAR WAS EMPTIED, WAS A 19 "CONTROLLED DELIVERY" AUTHORIZED ON IT? 20 A YES, IT WAS. 21 Q WHERE DID THAT AUTHORIZATION COME FROM OR HOW 22 DOES THE PROCESS -- 23 A THE PROCESS WORKS, THE CUSTOMS SERVICE 24 RECEIVES ITS AUTHORITY TO CONDUCT NARCOTICS 25 INVESTIGATIONS THROUGH THE DRUG ENFORCEMENT 87 1 ADMINISTRATION THAT WAS FORMED BACK IN '73, I BELIEVE. 2 THERE IS A MOU, MEMO OF UNDERSTANDING BETWEEN DEA AND 3 THE CUSTOMS SERVICE THAT PROVIDED THE PROCEDURES FOR 4 CROSS DESIGNATING US WITH TITLE 21, WHICH IS THE 5 FEDERAL CODE FOR NARCOTICS VIOLATIONS AUTHORITY. THAT 6 MOU HAD AN IMPLEMENTATION GUIDELINE THAT SAID IF WE ARE 7 GOING TO DO THIS TYPE OF OPERATION, IT REQUIRED AN 8 OPERATIONAL PLAN THAT WAS SUBMITTED BY THE OFFICE THAT 9 WANTS TO DO IT, WHICH WOULD HAVE BEEN MY OFFICE. IT'S 10 SENT TO WHERE WE ANTICIPATE THE LOAD IS GOING TO LAND 11 AT, WHERE THE RECEIVING OFFICE WILL BE, BOTH THE DEA 12 SAIC AND THE CUSTOMS A SAIC DESIGNATE THE A SAIC'S PER 13 THE MOU HAD TO APPROVE THAT OPERATION. 4:02P 14 Q ACTUALLY, THAT WAS A LOT MORE THAN I WAS 15 LOOKING FOR. 16 A SORRY. 17 Q SO, WHO APPROVED THIS THING, THIS CONTROLLED 18 DELIVERY? 19 A THE FINAL APPROVAL WOULD HAVE BEEN THE 20 DESIGNATED A SAIC. 21 Q AND DO YOU RECALL WHO THAT WAS IN THIS CASE? 22 A 1998? LARRY FOWLER. 23 Q DO YOU HAVE TO MAKE A RECOMMENDATION IN ORDER 24 FOR THIS CONTROLLED DELIVERY TO OCCUR? 25 A IF I DON'T APPROVE IT, THEN THE DESIGNATED A 88 1 SAIC IS NOT GOING TO ENTERTAIN IT, NO. 2 Q SO, YOU APPROVED OF THIS CONTROLLED DELIVERY? 3 A OH, YES. 4 Q DO YOU HAVE ANY EXPERTISE IN CONTROLLED 5 DELIVERIES? 6 A YES, I HAD BEEN WORKING SINCE, AS I TESTIFIED 7 EARLIER, SINCE 1998, UNTIL I TRANSFERRED TO RIVERSIDE 8 IN 1997. 9 Q 1998 DID YOU SAY? 10 A '88 TO '97. NINE YEARS I WAS RESPONSIBLE FOR 11 ALL CONTROLLED DELIVERIES THAT TRANSITED PHOENIX, WERE 12 DESTINED FOR PHOENIX. THAT INITIATED FROM PHOENIX 13 GOING TO OTHER PARTS OF THE COUNTRY EXCEPT FOR AIR 14 SMUGGLING. THERE WERE A FEW, IF I WAS OFF OR 15 SOMETHING, THAT SOMEONE ELSE WOULD HAVE HANDLED. 4:03P 16 Q APPROXIMATELY HOW MANY HAD YOU BEEN INVOLVED 17 IN EITHER DIRECTLY OR AS A SUPERVISOR? 18 A OVER 100. 19 Q HAVE YOU EVER WRITTEN ANYTHING ON THE TOPIC OF 20 CONTROLLED DELIVERIES? 21 A I WAS SELECTED, IN 1990, TO CO-AUTHOR A 22 SPECIAL AGENT'S HANDBOOK ON CONTROLLED DELIVERIES. 23 Q WAS THAT THE WHOLE HANDBOOK? 24 A THERE WERE THREE OF US THAT DRAFTED IT. 25 Q WHAT WAS A SPECIAL AGENT'S HANDBOOK? 89 1 A SPECIAL AGENT'S HANDBOOK IS COMPRISED OF 2 INDIVIDUAL CHAPTERS THAT ADDRESS SPECIFICS. THERE WAS 3 A HANDBOOK ON CONDUCTING FRAUD INVESTIGATIONS, 4 NARCOTICS INVESTIGATIONS. IT SETS POLICY. IT GIVES 5 GUIDANCE TO THE AGENTS ON HOW TO CONDUCT VARIOUS TYPES 6 OF OPERATIONS. 7 Q WOULD THIS BE -- I AM SORRY, WERE YOU DONE? 8 A I AM NOW. 9 Q WOULD THIS BE ISSUED TO ALL THE SPECIAL 10 AGENTS? 11 A YES, SIR. 12 Q INCLUDING MS. FITZGERALD? 4:04P 13 A YES. 14 Q AT THE TIME THAT YOU AUTHORIZED THE CONTROLLED 15 DELIVERY, WERE YOU AWARE THAT MS. FITZGERALD WAS 16 INVOLVED IN IT? 17 A YES. 18 Q WHAT WAS YOUR UNDERSTANDING OF WHAT HER ROLE 19 WAS? 20 A WELL, IN THIS ISSUE SHE WAS ASSIGNED TO GO 21 OUT -- AT THE VERY BEGINNING -- ONCE WE HAD THE LOAD, 22 SHE WAS THE CASE AGENT FROM THAT POINT FORWARD. 23 Q OKAY. AT THE TIME THAT YOU AUTHORIZED THE 24 CONTROLLED DELIVERY OR APPROVED OF IT, WERE YOU AWARE 25 THAT MS. FITZGERALD WAS THE CASE AGENT, IS THAT 90 1 CORRECT? 2 A YES. 3 Q AND YOU AUTHORIZED IT ANYWAY, IS THAT CORRECT? 4 A YES. 5 Q DID HER BEING THE CASE AGENT HAVE ANY ROLE IN 6 YOUR AUTHORIZING THIS CONTROLLED DELIVERY? WAS IT A 7 FACTOR THE FACT THAT SHE WAS THE CASE AGENT AS OPPOSED 8 TO SOMEBODY ELSE? 9 A NO. 10 Q WAS IT A FACTOR IN YOUR TERMINATING THE 11 CONTROLLED DELIVERY? 12 A NO, SIR. 4:05P 13 Q AND YOU DID TERMINATE THE CONTROLLED DELIVERY, 14 IS THAT CORRECT? 15 A YES, SIR. 16 Q WOULD YOU TELL THE JURY WHY? 17 A THE INITIAL CONTROLLED DELIVERY WAS STARTED ON 18 EXACTLY, I BELIEVE, APRIL 14TH. IT TOOK A COUPLE DAYS 19 AFTER WE RECOVERED THE DRUGS TO GET THE RAIL CAR MOVED 20 TO THE ACTUAL SITE THAT WAS SUPPOSED TO BE THE 21 DESIGNATION. 22 SO, WE LOST A COUPLE OF DAYS THERE. AND IN 23 THE INTERIM, WHILE WE WERE WORKING WITH THE RAILROAD TO 24 GET THE RAIL CAR MOVED, OBVIOUSLY THERE WAS TIME TO 25 HAVE CONTACT WITH OUR OFFICE IN CALEXICO, WITH THE 91 1 RAILROAD INDIVIDUALS. WE DETERMINED, BEFORE WE EVEN 2 GOT THE RAIL CAR AND HAVE IT PUT IN THE LOCATION WHERE 3 THE TARGETS COULD ACCEPT DELIVERY, WE LEARNED THAT THE 4 RAILROAD SYSTEMS, WHICH WAS ACCESSIBLE THROUGH THE 5 INTERNET, HAD AN INDICATION ON THAT COMMERCIAL SHIPMENT 6 "HOLD BY CUSTOMS." 4:06P 7 WE BECAME AWARE THAT THE TARGET WHO WE 8 REFERRED TO EARLIER, THE COOPERATOR, HAD INITIATED A 9 PHONE CALL TO THE CUSTOMS INSPECTOR THAT ORDERED THE 10 RAIL CAR SENT TO BE WEIGHED AND ADVISED THAT IT WAS 11 OVERWEIGHT AND WE WERE GOING TO DO AN INTENSIFIED 12 EXAMINATION. 13 THERE WAS ANOTHER PHONE CALL, I BELIEVE, TO 14 THE CUSTOMS BROKER PRIOR TO THE CALL FROM THE 15 COOPERATING WITNESS WHERE THEY HAD TOLD THEM WE WANT 16 YOU TO FILE WHAT'S CALLED AN AMERICAN GOODS RETURN 17 FORM. IF YOU EXPORT AND THEN BRING IT BACK IN, 18 NORMALLY YOU WOULD BE PAYING DUTIES ON YOUR 19 IMPORTATION. IF YOU ARE BRINGING BACK SOMETHING YOU 20 EXPORT, YOU DON'T HAVE TO PAY DUTIES. YOU SAY YOU HAVE 21 8,000 POUNDS, YOU HAVE GOT TO BRING IT BACK, YOU NEED 22 DO AN AMERICAN GOODS RETURN FORM. 23 OBVIOUSLY, THEY KNOW WE HAVE BEEN LOADED WITH 24 8,000 POUNDS IN THERE. THAT TOOK PLACE, I BELIEVE, ON 25 THE 11TH. WE HAVE THOSE FACTORS, I BELIEVE, INDICATED 92 1 TO ME WE HAVE BEEN COMPROMISED THAT THE NARCOTICS 2 ORGANIZATION WAS AWARE THAT WE WERE EITHER LOOKING AT 3 IT, FOLLOWING IT, WATCHING IT IN ORDER TO RECOVER THE 4 NARCOTICS. 4:07P 5 Q LET ME MAKE SURE I UNDERSTAND. YOU HAD 6 INFORMATION THE RAILROAD DISCLOSED ON THEIR INTERNET 7 THAT CUSTOMS WAS INVOLVED WITH THIS RAILROAD CAR? 8 A THAT'S CORRECT. 9 Q AND ALSO HAD INFORMATION THAT THE CUSTOMS 10 INSPECTOR RECEIVED A CALL FROM SOMEBODY ASKING ABOUT 11 THE -- 12 A THE PRINCIPAL OF T&L. 13 Q OKAY. WERE THERE ANY OTHER AGENCIES INVOLVED 14 IN THE CONTROLLED DELIVERY? 15 A THE SAN BERNARDINO POLICE DEPARTMENT PROVIDED 16 SURVEILLANCE HELP. THE DRUG ENFORCEMENT 17 ADMINISTRATION, PURSUANT TO THE MOU, SENT ONE OR TWO 18 BODIES OUT TO ASSIST. 19 Q AFTER YOU RECEIVED THE INFORMATION THAT THE 20 CONTROLLED DELIVERY HAD BEEN COMPROMISED, DID YOU 21 IMMEDIATELY TERMINATE IT? 22 A NO. AS I SAID, I WAS WELL AWARE OF THOSE 23 FACTORS BEFORE WE EVEN INITIATED IT. 24 Q WHY DID YOU EVEN BOTHER TO DO IT THEN? 25 A BECAUSE I STILL THOUGHT IT WAS A GOOD EFFORT 93 1 AND WORTH THE RISK. 2 Q AND DID THE SAN BERNARDINO POLICE DEPARTMENT 3 OBJECT TO YOU THAT YOU WERE TERMINATING THE CONTROLLED 4 DELIVERY? 4:08P 5 A NO. MY RECOLLECTION IS THAT ABOUT 24 HOURS 6 INTO THE SURVEILLANCE, I WAS MADE AWARE THAT THEY 7 NEEDED ADDITIONAL HELP BECAUSE WE HAD LOST THE 8 ASSISTANCE OF THE SAN BERNARDINO POLICE DEPARTMENT. 9 Q THEY PULLED OUT OF THE CONTROLLED DELIVERY? 10 A THAT THEY HAD PULLED THEIR SUPPORT, YES. 11 Q DID YOU LEARN WHY? 12 A I SUBSEQUENTLY HAD A MEETING WITH EITHER THE 13 SERGEANT OR LIEUTENANT OF THE NARCOTICS TASK FORCE. 14 Q WHAT DID YOU LEARN FROM HIM? 15 A THEY DIDN'T THINK IT WAS A FRUITFUL EFFORT. 16 Q WHEN THE SAN BERNARDINO POLICE DEPARTMENT 17 PULLED THEIR OFFICERS OUT, DID YOU IMMEDIATELY 18 TERMINATE THE CONTROLLED DELIVERY? 19 A NO, I SOUGHT ADDITIONAL HELP FROM MS. BROWN. 20 Q YOU PUT MORE RESOURCES INTO IT? 21 A YES. 22 Q AND DID THE FACT THAT MS. FITZGERALD WAS THE 23 CASE AGENT PLAY ANY FACTOR INTO YOUR PUTTING MORE 24 RESOURCES INTO THIS CONTROLLED DELIVERY? 25 A NO, SIR. 94 1 Q YOU WOULD HAVE DONE IT NO MATTER WHO WAS THE 2 CASE AGENT? 3 A YES. 4 Q AND YOUR DECISION TO TERMINATE THE CONTROLLED 5 DELIVERY, WOULD YOU HAVE DONE THAT NO MATTER WHO WAS 6 THE CASE AGENT? 4:09P 7 A YES, SIR. 8 Q WASN'T MS. FITZGERALD'S WELL-BEING ONE OF THE 9 FACTORS IN YOUR DECISION TO TERMINATE IT? 10 A NO. 11 Q DID YOU TERMINATE IT TO RETALIATE AGAINST HER 12 FOR EEO ACTIVITY? 13 A NO. 14 Q DID YOU TERMINATE BECAUSE YOU DIDN'T LIKE HER? 15 A NO, SIR. 16 Q IS IT ACCURATE THAT SHE HAD NOTHING TO DO WITH 17 YOUR DECISION TO TERMINATE THE CONTROLLED DELIVERY? 18 A THAT'S CORRECT. 19 Q DID YOU DISCUSS IT WITH HER THAT YOU WERE 20 TERMINATING? 21 A I AM QUITE SURE I DID, YES. 22 Q AFTER THE CONTROLLED DELIVERY, DID YOU ABANDON 23 ALL EFFORTS TO FIND AND ARREST THE CRIMINALS 24 RESPONSIBLE FOR THE CONTROLLED DELIVERY -- EXCUSE ME, 25 FOR THE DRUGS? 95 1 A NO. THE OTHER FACTOR THAT WEIGHED INTO THE 2 DECISION TO TERMINATE IT IS THE LONGER YOU GO, THE LESS 3 LIKELIHOOD YOU ARE GOING TO HAVE TO BE ABLE TO 4 APPREHEND ANY OF THE SUSPECTS THAT MAY BE INVOLVED. 5 IT ALSO GIVES THE SUSPECTS TIME TO TRY TO 6 DESTROY EVIDENCE SO YOU LOSE THE OPPORTUNITY. EVERY 7 DAY THAT GOES BY, THERE IS A CHANCE YOU ARE GOING TO 8 LOSE POTENTIAL EVIDENCE. 4:10P 9 SO, IN CONCERT WITH MY DECISION TO TERMINATE 10 IT, WE HAD MADE PLANS TO SEEK SEARCH WARRANTS FROM THE 11 FEDERAL COURT FOR THREE OR FOUR LOCATIONS FOR BUSINESS 12 LOCATIONS, I THINK A COUPLE OF RESIDENCES, MY 13 RECOLLECTION, THAT WE DETERMINED THEY WERE LIVING. 14 Q AND DID YOU AUTHORIZE THAT? 15 A YES. 16 Q AND DID THOSE STEPS RESULT IN ANY ARRESTS? 17 A EVENTUALLY. NOT THAT EVENING, IF I RECALL, OR 18 THAT DAY. 19 Q AND DID THOSE STEPS EVENTUALLY RESULT IN ANY 20 CONVICTION? 21 A YES, I BELIEVE ONE INDIVIDUAL REFERRED TO. 22 Q WAS THAT THE INDIVIDUAL WE HEARD ABOUT AS THE 23 COOPERATING WITNESS? 24 A YES. HE IS ACTUALLY A COOPERATING DEFENDANT, 25 I GUESS. 96 1 Q COOPERATING DEFENDANT. NOW, YOU TOLD MR. BEBI 2 THAT YOU WERE CONCERNED THERE WAS NO COOPERATING 3 WITNESS BEFORE THE END OF A CONTROLLED DELIVERY. HOW 4 CAN YOU BE SO CONCERNED OF THAT? 5 A HE DIDN'T -- I BELIEVE, HE TURNED HIMSELF IN 6 ABOUT FOUR WEEKS AFTER WE TERMINATED THE SURVEILLANCE. 4:11P 7 Q SO, IS IT YOUR TESTIMONY THAT AT THE TIME THE 8 CONTROLLED DELIVERY WAS TERMINATED, THERE WAS NO 9 COOPERATING WITNESS OR DEFENDANT? 10 A THAT'S CORRECT. 11 Q YOU DISAGREED WITH MR. BEBI'S DESCRIPTION OF 12 THIS COOPERATING DEFENDANT AS A HIGH RANKING MEMBER OF 13 A DRUG CARTEL. WHY DID YOU DISAGREE WITH THAT? 14 A IT WAS BASED ON MY EXPERIENCE. WHAT HE WAS 15 PRESENTED AS. HE WAS NOT A HIGH RANKING MEMBER. HE 16 WAS ACTUALLY A LOW RANKING MEMBER. MY RECOLLECTION IS 17 WHEN HE WAS FIRST ENGAGED IN THIS OPERATION, HE HAD 18 BEEN SET UP UNDER THE PRETENSE HE FELT HE WAS GOING TO 19 BE IMPORTING AND EXPORTING LIQUID SOAP. MY 20 RECOLLECTION IS HE REALIZED THERE WAS SOMETHING FUNNY 21 BECAUSE THE MONEY HE WAS BEING PAID SOMEWHERE BETWEEN 22 THE FIRST AND SECOND LOAD THAT HE ARRANGED -- 4:12P 23 Q WAS THERE A NAME USED IN LAW ENFORCEMENT FOR A 24 PERSON INVOLVED IN THAT SORT OF ACTIVITY? A MULE? 25 A RIGHT. HE IS BASICALLY -- THAT'S THE PERSON 97 1 WHO'S SITTING THERE ACCEPTING IT AND IS GOING TO BE THE 2 MOST VALUABLE TO LAW ENFORCEMENT. THE HIGH RANKING 3 MEMBERS DON'T ASSOCIATE OR GET THAT CLOSE TO THE 4 NARCOTICS. 5 Q AT ANY POINT AFTER THAT -- LET ME BACK UP A 6 SECOND. WE HEARD REFERENCE TO T&L ENTERPRISES. WHAT'S 7 THE RELATIONSHIP BETWEEN T&L ENTERPRISES AND THIS RAIL 8 CAR WE HAVE JUST BEEN TALKING ABOUT? 9 A THEY ARE ONE IN THE SAME. 10 Q SO, THE T&L ENTERPRISES, DID IT START WITH 11 THIS RAIL CAR? 12 A YES. 13 Q BEFORE THE RAIL CAR, WAS MS. FITZGERALD 14 INVOLVED IN A RAIL CAR INVESTIGATION? 15 A NO. 16 Q THIS IS WHAT STARTED THE RAIL CAR 17 INVESTIGATION? 18 A THAT'S CORRECT. 19 Q SO, WAS MS. PALAZUELOS INVOLVED IN ANY RAIL 20 CAR INVESTIGATION WITH MS. FITZGERALD BEFORE THIS 21 SEIZURE? 4:13P 22 A SHE WAS INVOLVED WHEN WE KNEW -- ONCE WE HAD 23 THE INDICATORS THAT THERE WAS A RAIL CAR IN THE YARD 24 THAT SHE HAD -- DARLENE HAD DEVELOPED INFORMATION, 25 INSPECTORS HAD DEVELOPED INFORMATION THAT, YOU KNOW, WE 98 1 HAD -- DARLENE SPOKE WITH, I BELIEVE IT WAS, MS. 2 PALAZUELOS, ON WHETHER SHE -- WE STILL HAD BORDER 3 SEARCH AUTHORITY BECAUSE SHE HAD SOME DISTANCE FROM THE 4 BORDER WHETHER SHE NEEDED TO GET A SEARCH WARRANT. SO, 5 SHE HAD SOME INVOLVEMENT IN THE CASE PRECEDING THE 6 ACTUAL RECOVERY OF THE NARCOTICS. 7 Q AND THE COOPERATING DEFENDANT SHOWED UP AFTER 8 THAT? 9 A THAT'S CORRECT. 10 Q DID YOU EVER TELL MS. FITZGERALD TO WRAP UP 11 T&L ENTERPRISES? 12 A WRAP UP IN THE SENSE I WOULD LIKE TO SEE THE 13 CASE BROUGHT TO INDICTMENT. 14 Q WERE YOU RECEIVING ANY KIND OF PRESSURE FROM 15 YOUR HIGHER UPS TO TERMINATE THE PROJECT? 16 A NOT EVERY WEEK, BUT WE WERE REQUIRED -- WE 17 ATTENDED WEEKLY STAFF MEETINGS WITH THE SPECIAL AGENT 18 IN CHARGE OFFICE, AND THEY DIDN'T ASK ME WEEKLY, BUT 19 THEY ASKED ME FREQUENTLY. 4:14P 20 Q THEY WERE ASKING YOU TO TERMINATE IT? 21 A NO, THEY WERE ASKING ME WHY WE HADN'T -- WHERE 22 WE WERE AT. WHEN ARE WE GOING TO SEE SOME INDICTMENTS. 23 ARRESTS. 24 Q WERE YOU BEING PRESSURED TO GET ARRESTS ON 25 THAT? 99 1 A ANY INVESTIGATION, A SITTING CASE, THEY STAND 2 OUT IN UPPER MANAGEMENTS MINDS. YOU ARE GOING TO BE 3 QUESTIONED ABOUT IT. 4 Q YOUR PRESSURE WAS TO MOVE FORWARD AND NOT END 5 THAT CASE, IS THAT WHAT YOU ARE SAYING? 6 A ABSOLUTELY. 7 Q WHO DID YOU GET THAT PRESSURE FROM? 8 A MS. BROWN. PRIMARILY MS. BROWN AND MR. 9 HENSLEY, AND I HAD HAD FREQUENT CONVERSATIONS. 10 Q YOU ARE REFERRING TO THE WOMAN AT COUNSEL 11 TABLE? 12 A YES. 13 Q AS YOU SIT HERE TODAY, DO YOU FEEL YOU 14 PROVIDED ADEQUATE RESOURCES FOR T&L ENTERPRISES? 15 A YES. 16 Q WHY DO YOU SAY THAT? 17 A I WAS NEVER MADE AWARE, BY ANY OF THE 18 SUPERVISORS, ACTING OR PERMANENT, THAT THE ADDITIONAL 19 RESOURCES WERE REQUIRED. MY REVIEW, SUBSEQUENT TO THE 20 CLOSE OF THE CASE -- OF THE FILE, INDICATED THERE WERE 21 VERY FEW LEADS THAT WERE ACTUALLY RUN DOWN ON IT. 4:16P 22 Q THERE WERE VERY FEW LEADS THAT WERE RUN DOWN? 23 A YEAH. THE CASE WAS OPEN FOR OVER TWO YEARS, 24 AND THERE MAY HAVE BEEN 14, 15 INTERVIEWS ACTUALLY 25 CONDUCTED, AND A COUPLE OF REPORTS THAT RELATED TO THE 100 1 ACTUAL CONTROLLED DELIVERY. 2 Q HOW WOULD YOU EXPECT MS. FITZGERALD TO RUN 3 DOWN LEADS? WHAT SORT OF THING DO YOU EXPECT SHE COULD 4 HAVE BEEN DOING? 5 A DOING FOLLOW-UP INTERVIEWS WITH THE PEOPLE SHE 6 IDENTIFIED WERE ASSOCIATED WITH THE INCORPORATION OF 7 THE T&L, THE LEADING OF THE SPACE THERE. ALL THOSE 8 WERE EVENTUALLY CONDUCTED, FROM MY RECOLLECTION. 9 Q YOU SAY THEY WERE EVENTUALLY CONDUCTED? 10 A YES. 11 Q AND WHAT HAPPENED TO THAT CASE AFTER SHE 12 RESIGNED? 13 A IT WAS REASSIGNED TO RUBEN SANDIVAL. 14 Q DID HE TELL YOU ANYTHING ABOUT THE CASE? 15 A MY RECOLLECTION, HOW MANY JUST DIRECT 16 DISCUSSIONS I HAD WITH RUBEN, HE WAS WORKING WITH GROUP 17 SUPERVISOR COOPER, AND MOST OF MY DISCUSSIONS WOULD 18 HAVE BEEN WITH HIM. BUT THEY FELT THERE WAS 19 INSUFFICIENT EVIDENCE TO RECEIVE ANY OFFICIAL TARGETS. 4:17P 20 Q DID YOU TALK TO MS. PALAZUELOS ABOUT T&L 21 ENTERPRISES? 22 A I HAD A MEETING WITH PALAZUELOS IN EARLY 1999. 23 Q DID SHE HAVE ANY COMPLAINT ABOUT A LACK OF 24 RESOURCES AT THAT TIME? 25 A I DON'T RECALL SPECIFICALLY. 101 1 Q DID SHE GIVE YOU AN INDICATION ABOUT WHAT YOUR 2 MANAGEMENT PRESSURING YOU TO GET MORE INDICTMENTS WAS 3 EVER GOING TO HAPPEN? 4 A I HAD BEEN GIVEN THE IMPRESSION FROM THE 5 SUPERVISORS, ACTING AND PERMANENT, THAT INDICTMENTS 6 WERE FORTHCOMING ON THREE TO FOUR INDIVIDUALS. 7 Q YOU SAY THE SUPERVISORS OR MS. PALAZUELOS TOLD 8 YOU THAT? 9 A I BELIEVE ALL. 10 Q SHE CAN AS WELL AS THEM? 11 A YES. 12 Q ALL RIGHT. AND WAS MS. FITZGERALD OR MS. 13 PALAZUELOS ABLE TO GET MORE INDICTMENTS? 14 A MS. FITZGERALD WAS AT THE MEETING, YES. 15 Q WAS SHE ABLE TO GET MORE INDICTMENTS? 16 A THERE WERE NEVER ANY ADDITIONAL INDICTMENTS 17 SOUGHT. 18 Q EVENTUALLY THE CASE WAS CLOSED? 19 A YES, IT WAS. 20 Q ABOUT HOW LONG AFTER SHE RESIGNED? 21 A OVER A YEAR. 22 Q LET'S TALK ABOUT MR. SCHULTE'S ALLEGED REQUEST 23 TO MODIFY OR EXPLAIN ROI'S. DID YOU EVER DISCUSS WITH 24 MR. SCHULTE ANY OF MS. FITZGERALD'S CLOSED ROI'S? 4:18P 25 A NOT TO MY RECOLLECTION. 102 1 Q DID YOU EVER TELL HIM TO HAVE HER MODIFY THE 2 CLOSED ROI? 3 A I DON'T BELIEVE SO. 4 Q DID YOU EVER DISCUSS HER EEO ACTIVITIES WITH 5 HIM? 6 A I HAVE NO RECOLLECTION OF THAT. 7 Q LET'S MOVE ON TO "OPERATION RIGHT RAIL". HAVE 8 YOU EVER HEARD OF AN OPERATION CALLED "OPERATION RIGHT 9 RAIL"? 10 A YES. 11 Q WHAT'S YOUR UNDERSTANDING OF WHAT IT IS? 12 A IT'S A -- THERE WAS A TIME WHEN THE CUSTOMS 13 SERVICE HAD INITIATED SPS, STRATEGIC PROBLEM SOLVING, 14 TO TAKE A MULTI-DISCIPLINE APPROACH TO THE PARTICULAR 15 AREAS OR (INAUDIBLE) WITHIN THE CUSTOMS SERVICE, OR THE 16 IMPORTING SERVICE, THAT THEY COULD BRING IN THESE 17 VARIOUS ENTITIES, LEGAL AGENTS FROM THE OI, INSPECTORS, 18 I DON'T RECALL WHO ALL. 4:19P 19 Q LET ME STOP YOU. I DON'T WANT YOU TO GIVE TOO 20 MUCH DETAIL, I APOLOGIZE. WAS IT BASICALLY LIKE A 21 THINK TANK? 22 A YES. 23 Q WHAT WAS THE PRODUCT THAT WAS SUPPOSED TO COME 24 OUT OF THIS THINK TANK? 25 A EACH PROJECT COULD BE DIFFERENT, BUT GENERALLY 103 1 MY UNDERSTANDING WAS THEY WERE TRYING TO DEVELOP 2 PROCEDURES OR NEW PROCEDURES THAT COULD BE APPLIED IN 3 THE FIELD. 4 Q THEY WERE COMING OUT TO REPORT OR SOP OR 5 SOMETHING LIKE THAT? 6 A YES. 7 Q WAS THERE A PURPOSE TO ARREST PEOPLE, THE 8 DIRECT PURPOSE AND THE GOAL IS TO ARREST PEOPLE OR MAKE 9 SEIZURES? 10 A THE PROJECT WOULDN'T BE -- HOPEFULLY THE END 11 OF RESULT OF THE PROJECT WOULD LEAD TO BETTER LAW 12 ENFORCEMENT THAT ULTIMATELY RESULTED IN ARRESTS AND 13 SEIZURES. 14 Q WAS SPS DIFFERENT FROM THE CRIMINAL CASE? 15 A ENTIRELY DIFFERENT. 16 Q THAT'S WHAT YOUR PEOPLE DID CRIMINAL 17 INVESTIGATIONS, IS THAT RIGHT? 18 A CORRECT. 19 Q AND YOU ARE A PART OF THE OFFICE OF 20 INVESTIGATIONS, RIGHT? 21 A THAT'S CORRECT. 22 Q NOW, MS. FITZGERALD SAYS THAT SEPTEMBER 24, 23 1998, YOU TOLD HER NOT TO DO ANY MORE WORK ON 24 "OPERATION RIGHT RAIL" AND TO WRAP IT UP AND TO CLOSE 25 IT DOWN, IS THAT ACCURATE? 104 1 A NO. 2 Q DID YOU TELL HER TO DO THAT? 4:20P 3 A SHE WOULDN'T HAVE BEEN IN A POSITION TO CLOSE 4 DOWN "RIGHT RAIL." 5 Q SHE WASN'T INVOLVED IN IT? 6 A THAT'S CORRECT. 7 Q AND YOU MENTIONED YOU TESTIFIED THIS MORNING 8 THAT YOU TOLD MIKE KELLY THAT MS. FITZGERALD WAS NOT TO 9 HAVE ANY INCREASED INVOLVEMENT IN THE SPS PROJECT, 10 CORRECT? 11 A CORRECT. 12 Q AND AS I UNDERSTAND YOUR UNDERSTANDING OF HER 13 PREVIOUS INVOLVEMENT WAS SHE MET WITH THE SPS PEOPLE TO 14 DESCRIBE T&L ENTERPRISES. SHE TOOK THEM OUT THERE TO 15 SET UP SOME TRAINING, IS THAT CORRECT? 16 A SHE INITIALLY WAS -- FRED HAD ASKED ME, FRED 17 WANTED TO HAVE HER COME OUT AND BRIEF THE GROUP ON THE 18 T&L INVESTIGATION. SUBSEQUENT TO THAT DARLENE 19 INCORPORATED SOME ON-SITE TRAINING AT THE RAIL YARD 20 WITH THE TEAM MEMBERS, I BELIEVE. 21 Q DID YOU AUTHORIZE HER TO HAVE ANY FURTHER 22 CONTACT OR INVOLVEMENT IN THIS ACTIVITY? 23 A NO, I DID NOT. 24 Q OKAY. WAS YOUR APPROVAL REQUIRED FOR HER TO 25 BE INVOLVED IN THE SPS PROJECT? 105 4:21P 1 A YES, IT WOULD BE. 2 Q THERE WAS SOME DISCUSSION OF CONVERSATIONS YOU 3 HAD WITH BOB MATTIVI ABOUT TESTING SOME RAIL CARS. DO 4 YOU RECALL SPEAKING WITH MR. MATTIVI ABOUT HE AND 5 DARLENE, MS. FITZGERALD DOING WORK ON SOME RAIL CARS? 6 A GENERALLY, YES. 7 Q WHAT DID YOU TELL HIM? 8 A IN GENERAL, THAT I WANTED THEM TO ALLOW THE 9 OFFICE OF FIELD OPERATIONS TO DO THEIR JOB. IF THEY 10 FOUND SOMETHING, THEY WOULD REFER IT BACK TO US. 11 Q DO THE INSPECTORS HAVE ANY PROCEDURES IN PLACE 12 TO TEST OR WEIGH CARS? 13 A MY UNDERSTANDING, THE OFFICE OF FIELD 14 OPERATIONS FOR SIX MONTHS PRIOR TO THIS SEIZURE IN 15 APRIL HAD ESTABLISHED AN SOP WHERE VEHICLES THAT THEY 16 FELT WARRANTED -- THEY WOULD SEND UP TO COLSTON, 17 BECAUSE THEY DIDN'T HAVE THE FACILITIES TO WEIGH THE 18 CARS AT THE BORDER. AND THEN, BASED ON THAT WEIGHT AND 19 THE OTHER INDICATORS, THAT THEY, HIS EXPERTS, WOULD 20 MAKE A DECISION WHETHER THEY NEEDED TO DRIVE UP AND DO 21 A FURTHER EXAMINATION. 4:23P 22 Q WAS THERE ANY FINANCIAL CONSIDERATION IN 23 WHETHER YOUR OFFICE, YOUR OFFICE WITH THE 24 INVESTIGATIONS, SHOULD DO WEIGHING OR INSPECTION OF 25 RAIL CARS AS OPPOSED TO OOFO, THE OFFICE OF FIELD 106 1 OPERATIONS? 2 A IN GENERAL, THE IMPORTING COMMUNITY BASICALLY 3 BEARS IF YOU ARE THE IMPORTER. IT'S THE COST OF DOING 4 BUSINESS. IF YOU ARE GOING TO IMPORT SOMETHING INTO 5 THE COUNTRY AND THE OFFICE OF FIELD OPERATIONS WANTS TO 6 CONDUCT AN EXAMINATION, THEY HAVE TO, MY UNDERSTANDING, 7 PROVIDE LABOR, WHATEVER, TO ALLOW US TO EXAMINE IT. 8 WHEN THE OFFICE OF INVESTIGATIONS GETS 9 INVOLVED, SUCH AS IN THIS CASE, A COUPLE OF TIMES WITH 10 THESE RAIL CARS WHERE WE WANTED TO SOMEWHAT NOT LET THE 11 ULTIMATE CONSIGNEE AND THE STATE TO KNOW WE WERE 12 LOOKING AT IT BECAUSE WE WERE TRYING TO ADVANCE OUR 13 CRIMINAL CASE, THEN THE OFFICE OF INVESTIGATIONS WOULD 14 HAVE TO BEAR THAT CASE. 15 Q SO, IF THE OFFICE OF FIELD OPERATIONS 16 INITIATES THE INSPECTION, COSTS ARE BORNE BY THE 17 SHIPPER? 18 A THAT'S MY UNDERSTANDING, YES. 19 Q IN YOUR OFFICE, OFFICE OF INVESTIGATIONS, DOES 20 IT HAVE TO PAY THE COST? 4:24P 21 A GENERALLY, YES. 22 Q HOW MUCH COULD COSTS OF INSPECTING OR DOING 23 HAZMAT ON A RAIL CAR BE? 24 A WELL, THE INITIAL CASE WAS CLOSE TO $10,000. 25 THE ONE IN SEPTEMBER WAS $1500 TO DRAIN THE VEGETABLE 107 1 OIL. 2 Q DID YOU GET IN A LITTLE HOT WATER OVER THAT 3 FIRST ONE? 4 A THE FIRST ONE THERE WERE SOME UNEASY MOMENTS, 5 YES. BASICALLY, IT WAS AN OPEN ENDED CONTRACT WITH THE 6 TEAM, WHICH EITHER MYSELF, OR THE SPECIAL AGENT IN 7 CHARGE WOULD HAVE HAD AUTHORITY TO APPROVE. 8 Q DID YOU HAVE AN UNDERSTANDING, WHEN YOU WENT 9 INTO THE INITIAL SEIZURE IN APRIL OF 1998, THAT 10 SOMEBODY, OTHER THAN YOU, YOUR OFFICE, WOULD BE PAYING 11 FOR IT? 12 A I BELIEVED THAT THE OFFICE OF FIELD OPERATIONS 13 WHO HAD SET IT UP THERE AT THE TIME, I WASN'T AWARE, 14 THAT THOSE COSTS WERE, BASICALLY, YOU KNOW, THE 15 RESPONSIBILITY OF THE IMPORTER THAT SOMEHOW -- I DIDN'T 16 REALLY KNOW THE SYSTEM. AND I HAD BEEN -- IT WAS MY 17 UNDERSTANDING, AND I SHOULD HAVE GOTTEN BETTER ANSWERS 18 AT THE TIME, I BELIEVE, FROM FRANK AND DARLENE, THAT 19 THIS HAZMAT TEAM, MY UNDERSTANDING, THEY WORK FOR THE 20 RAILROAD. AS IT TURNED OUT, THEY ARE A THIRD PARTY 21 CONTRACTOR AND THAT'S WHERE THE BILL EMANATED FROM. 4:25P 22 Q SO, YOU FOUND OUT, AT SOME POINT, CUSTOMS WAS 23 GOING TO GET STUCK WITH THE BILL? 24 A THE EVENING WE WERE HAVING THE NARCOTICS 25 REMOVED FROM THE TANKER CAR, I WALKED UP TO INSPECTORS 108 1 FOR CALEXICO THERE AND ASKED, "HOW DO YOU DO THIS? 2 THIS LOOKS LIKE IT'S GOING TO COST SOME MONEY." THERE 3 WERE FIVE OR SIX OF THESE CONTRACTORS IN FULL SUIT, YOU 4 KNOW, MOON SUITS, AND THEY SAID, "WE DIDN'T AUTHORIZE 5 YOUR PAYING." 6 Q AND HOW MUCH -- 7 A IT WAS AN UNEASY MOMENT. 8 Q HOW MUCH DID THAT COST? 9 A HE GAVE A GENERAL ESTIMATE AS TO HOW MUCH HE 10 THOUGHT OCCURRED UP TO THAT POINT AND HOW MUCH MORE IT 11 WOULD TAKE. 12 Q WHAT DID HE TELL YOU? 13 A I DON'T REMEMBER THE EXACT NUMBERS, BUT I KNOW 14 WE STARTED GETTING UP CLOSE TO $10,000. 15 Q WHAT IS YOUR AUTHORIZATION FOR FUNDING? 16 A I BELIEVE, AT THE TIME, IT WAS $500. 17 Q THAT WAS KIND OF, "NO. OH, SHOOT," MOMENT? 18 A KIND OF, YEAH. 19 Q WAS THAT A FACTOR -- 20 THE COURT: HOW MUCH LONGER DO YOU HAVE IN 21 THIS PARTICULAR AREA? 4:26P 22 MR. STUTLER: ONE MORE QUESTION. 23 BY MR. STUTLER: 24 Q WAS THAT A FACTOR IN YOUR DECISION LATER 25 WHETHER YOUR OFFICE SHOULD BE INVOLVED IN THE 109 1 INSPECTING OF RAIL CARS? 2 A IN MY OVERALL INDICATION, NOT WITH ME, 3 COMMUNICATION WITH MY OFFICE, BUT THIS IS SOMETHING 4 WHERE WE HAD A PROBLEM WHERE THESE CARS WERE COMING 5 FROM CALEXICO TO BE WEIGHED THERE. THEY DIDN'T HAVE 6 PERSONNEL ON SITE, BUT IT REASONABLY WAS AN OFO, FIELD 7 OF OPERATIONS JOB, AND THEY NEEDED TO MAKE SOME 8 ARRANGEMENTS TO GET PERSONNEL THERE, YES, TO CONDUCT 9 THEIR EXAMS. 10 MR. STUTLER: OKAY. ALTHOUGH I SAID I HAVE 11 ONE MORE I JUST HAVE ONE MORE. 12 BY MR. STUTLER: 13 Q MS. FITZGERALD'S JOB, AS A SPECIAL AGENT, 14 WOULD SHE BE INVOLVED IN THESE BUDGET/FINANCIAL/ 15 MANAGERIAL ISSUES AS A CASE AGENT? 16 A NOT REALLY, NO. 17 Q THAT WOULD BE SOMETHING YOU HAVE GOT TO WORRY 18 ABOUT, RIGHT? 19 A YES. 20 MR. STUTLER: DO YOU WANT TO TAKE A BREAK, 21 YOUR HONOR? 22 THE COURT: YES. WHY DON'T WE DO THAT. 23 ACCORDING TO MY WATCH IT'S 3:30. LET'S COME BACK AT A 24 QUARTER TILL. OKAY. THANK YOU. 25 (AFTERNOON RECESS TAKEN.) 110 4:45P 1 (JURY ENTERS COURTROOM.) 2 THE COURT: ALL RIGHT, MR. STUTLER. 4:48P 3 MR. STUTLER: THANK YOU, YOUR HONOR. 4 BY MR. STUTLER: 5 Q MR. PINKAVA, AT THE TIME YOU SPOKE WITH MR. 6 MATTIVI ABOUT HE AND MS. FITZGERALD DOING WORK ON THE 7 RAIL CARS, WAS SHE BEHIND ON ANY OF HER BIG CASES? 8 A TWO MAJOR CASES THAT I RECALL THAT SHE WAS 9 WORKING ON WAS THE T&L INVESTIGATION AND A FRAUD CASE. 10 Q AND WHAT WAS THAT CALLED, "LAZZY LEGS?" 11 A YES, I BELIEVE SO. 12 Q AND SHE WAS BEHIND ON THAT? 13 A IN MY OPINION, YES. 14 Q WHAT KIND OF CASE WAS "LAZZY LEGS?" 15 A "LAZZY LEGS," WAS A -- WE CALLED IT A CUSTOMS 16 FRAUD CASE. BASICALLY, THE BASIC PREMISE OF THE CASE 17 WAS THE COMPANY WAS REMOVING THE COUNTRY OF ORIGIN 18 MARKINGS, WHICH OBVIOUSLY, MISLEADS THE AMERICAN PUBLIC 19 AS TO WHAT YOU ARE PURCHASING. THEY WERE REMOVING 20 LABELS FROM -- THE EASIEST WAY TO DESCRIBE IT, THE PADS 21 THAT THE KIDS WEAR SKATE BOARDING, KNEE PADS, ELBOW 22 PADS AND WRIST PADS, AND THEY WERE REMOVING, I DON'T 23 RECALL WHERE THEY WERE MADE TAWAIN, AND PUTTING MADE IN 24 THE USA. WE EXECUTED SEARCH WARRANTS AND ACTUALLY 25 CAUGHT THEM REMOVING THE LABELS DURING THE EXECUTION OF 111 1 THE SEARCH WARRANTS. 2 THE COURT: I JUST HAVE TO DO THIS, MR. 3 STUTLER. I AM SORRY. IT MAY BE BECAUSE IT IS LATE IN 4 THE AFTERNOON. JUST EXACTLY HOW IN THE WORLD DO YOU 5 ASSIGN NAMES TO CASES? HOW DO YOU COME UP WITH "LAZZY 6 LEGS?" 4:49P 7 THE WITNESS: THAT WAS THE NAME OF THE 8 COMPANY. 9 THE COURT: ALL RIGHT. THANKS. 10 BY MR. STUTLER: 11 Q DID YOU EVER TELL HER TO MOVE THAT CASE ALONG? 12 A BASICALLY, I THINK, FROM THE VERY BEGINNING, I 13 HAD SUPERVISED TWO OR THREE OF THESE TYPE CASES WHEN I 14 INITIATED A FRAUD ENFORCEMENT TEAM IN PHOENIX, PRIOR TO 15 MY ARRIVAL IN RIVERSIDE. ALL CASES ARE PRIORITIZED. 16 SOME ARE MORE SIGNIFICANT THAN OTHERS. IT'S A 17 MISDEMEANOR VIOLATION. THERE ARE SUBSTANTIAL, I CAN'T 18 REMEMBER NOW, SEVERAL PENALTIES THAT CAN BE APPLIED TO 19 THE COOPERATION, ON TOP OF THE CRIMINAL. AND WE HAD 20 SUCCESSFULLY PROSECUTED SOME OF THESE. SOMETIMES THE 21 CORPORATE OFFICER PLAYED SOMETIMES, I BELIEVE, JUST THE 22 CORPORATION SOMEHOW PLEAD OUT. 23 Q DON'T LET ME GET TOO FAR AFIELD. WE WILL 24 DEVELOP IT A LITTLE BIT. AT SOME POINT, DID YOU TELL 25 HER TO MOVE THE CASE ALONG "LAZZY LEGS?" 112 4:50P 1 A YES. I WANTED IT COMPLETED TO MOVE ON TO 2 OTHER PROJECTS, CASES. 3 Q HOW LONG HAD SHE BEEN WORKING ON IT WHEN YOU 4 TOLD HER TO MOVE IT ALONG? 5 A I DON'T RECALL. 6 Q WAS IT MORE THAN SIX MONTHS? 7 A YES. I BELIEVE THE CASE -- A BASIC CASE OF 8 THAT NATURE WOULD HAVE TAKEN SIX MONTHS. THIS WAS AT 9 LEAST A YEAR PAST THE INITIATION. 10 Q DID SHE TELL YOU WHY IT WAS TAKING HER SO 11 LONG? 12 A SHE FELT SHE HAD DEVELOPED INFORMATION THAT 13 WOULD SUPPORT CHARGES FOR BANKRUPTCY FRAUD. 14 Q WAS THIS UNUSUAL OR NOVEL? 15 A NOT SO MUCH NOVEL. ANOTHER WHITE COLLAR 16 CRIME. 17 Q DID EITHER YOU OR SHE HAVE EXPERIENCE WITH THE 18 BANKRUPTCY CASES. 19 A NO, THE JURISDICTION FOR BANKRUPTCY IS UNDER 20 THE UMBRELLA OF THE FBI'S JURISDICTION. 21 Q DID YOU MAKE ANY EFFORT TO DETERMINE SUCH AN 22 ACTION, A BANKRUPTCY ACTION IN THAT CASE WAS PLAUSIBLE? 4:51P 23 A THE CASE WAS -- MY RECOLLECTION IS DARLENE 24 BRIEFED ONE OF THE FBI AGENTS ON THE CASE AND THEY 25 DECLINED TO PARTICIPATE. 113 1 Q DID YOU ASK HER FOR ANY INFORMATION SO YOU 2 COULD DETERMINE WHETHER THE CASE WAS PLAUSIBLE? 3 A I ASKED, BECAUSE OF MY LACK OF EXPERIENCE IN 4 CONDUCTING BANKRUPTCY FRAUD, IF SHE COULD AT LEAST GET 5 ME A COPY OF THE ELEMENTS OF THE CRIME. BASIC CRIMINAL 6 CASES THEY HAVE A STATUTE, BUT THE COURT'S DECIDE, 7 THROUGH CASES THAT ARE BROUGHT BEFORE IT, THESE ARE THE 8 CERTAIN ELEMENTS THAT THE AGENTS BASICALLY HOPEFULLY 9 INITIATE THEIR CASES TOWARDS TRYING TO PROVE THE 10 SPECIFIC ELEMENTS OF THE CRIME. I WASN'T AWARE OF WHAT 11 THE ELEMENTS WERE. 12 Q WHAT ABOUT DOCUMENTS IN THE CASE, DID YOU ASK 13 HER FOR ANY SORT OF DOCUMENTS YOU COULD REVIEW 14 REGARDING THE CASE ITSELF? 15 A WELL, I ASKED FOR A REVIEW OF THE FINANCIAL 16 RECORDS TO SUPPORT -- THAT SHE WAS GOING TO UTILIZE TO 17 SUPPORT THESE CHARGES. 18 Q DO YOU HAVE ANY TRAINING OR EXPERIENCE IN 19 REVIEWING FINANCIAL DOCUMENTS? 4:52P 20 A YES, I DO. 21 Q TELL THE JURY ABOUT THAT? 22 A I HOLD A BACHELOR'S IN BUSINESS ADMINISTRATION 23 WITH A MAJOR IN ACCOUNTING. I HOLD A NON-PRACTICING 24 LICENSE, CPA LICENSE, IN THE STATE OF OHIO. I 25 PREVIOUSLY HELD A CPA LICENSE IN THE STATE OF ARIZONA. 114 1 I WORKED FOR SEVEN AND A HALF YEARS WITH THE CRIMINAL 2 INVESTIGATION DIVISION OF THE IRS BEFORE I TRANSFERRED 3 TO CUSTOMS. AND I WORKED AN EXTENSIVE AMOUNT OF MONEY 4 LAUNDERING CASES OVER MY AGENT/SPECIAL AGENT CAREER. 5 Q DID SHE EVER GIVE YOU THE INFORMATION YOU 6 WANTED SO YOU COULD REVIEW IT? 7 A NO. AT SOME POINT, I BELIEVE MIKE PERBETSKY 8 ASKED LILLIAN MOLOIAN AND ANOTHER AGENT IN THE OFFICE 9 TO REVIEW THE RECORDS THAT HAD BEEN, I BELIEVE, SEIZED, 10 AND TO PREPARE A REPORT SUMMARIZING THOSE RECORDS. THE 11 RECORDS MAY BE CONFUSING. THERE WERE ADDITIONAL BANK 12 RECORDS THAT SHE HAD BELIEVED OBTAINED, I BELIEVE, 13 THROUGH GRAND JURY THAT I HAD ASKED FOR A SECOND REPORT 14 ON. 4:53P 15 Q WHAT DID LILLIAN MOLOIAN -- 16 A LILLIAN'S WAS EVENTUALLY PREPARED RELATING TO 17 THE DOCUMENTS, I BELIEVE, WERE SEIZED. THE SECOND ONE 18 I WAS REFERRING TO EARLIER IT WAS UNDER THE FINANCIAL 19 BANK RECORDS THAT WE HAD OBTAINED. 20 Q THAT WAS THE ONE YOU WANTED FROM MS. 21 FITZGERALD? 22 A THAT'S CORRECT. 23 Q DID SHE EVER PROVIDE THAT TO YOU? 24 A NO. 25 Q WAS THERE AN ASSISTANT UNITED STATES ATTORNEY 115 1 ASSIGNED TO THAT CASE? 2 A YES, THERE WAS. 3 Q DID YOU SPEAK WITH THAT PERSON ABOUT HER IDEA 4 OF BUILDING -- MS. FITZGERALD'S IDEA OF BUILDING A 5 BANKRUPTCY FRAUD TYPE CASE? 6 A I SCHEDULED A MEETING WITH THE PROSECUTOR IN 7 EARLY 1999. THROUGHOUT 1998, WE HAD A SERIES OF -- PAT 8 SCHULTE WAS A PERMANENT SUPERVISOR, BUT WE KNEW HE WAS 9 ONLY GOING TO BE THERE SIX MONTHS WHEN HE CAME OUT, AND 10 VARIOUS OTHER PEOPLE IN ACTING CAPACITIES. A YEAR AND 11 A HALF INTO THE CASE, AT THIS POINT. SO, I WANTED TO 12 MEET, FIND OUT WHERE WE WERE GOING, WHERE WE WOULD BE 13 ABLE TO PERFECT THE CASE ON THIS BANKRUPTCY AND JUST 14 GENERAL MEETING WITH THE PROSECUTOR. 4:55P 15 Q WHEN YOU SAY THIS POINT, WHAT POINT IN TIME 16 ARE WE TALKING ABOUT NOW? 17 A THIS IS NOW EARLY, THE SAME DAY I MET WITH THE 18 PROSECUTOR ON HER OTHER INVESTIGATION, THE T&L, I 19 BELIEVE, WE SCHEDULED THEM BOTH TO TAKE PLACE THAT SAME 20 DAY. 21 Q THAT WAS WHEN? 22 A IN JANUARY OR FEBRUARY OF '99. 23 Q THIS IS HER LAST -- MS. FITZGERALD'S LAST YEAR 24 THERE? 25 A YES. 116 1 Q DID YOU REACH ANY SORT OF DECISION REGARDING 2 THE CASE AFTER YOU SPOKE WITH THE ASSISTANT UNITED 3 STATES ATTORNEY? 4 A THE ASSISTANT TOLD ME THAT BANKRUPTCY FRAUD 5 WAS NOT HIS EXPERTISE AND WAS NOT THE SECTION THAT HE 6 WAS ASSIGNED TO AT THE US ATTORNEY'S OFFICE. SO, HE 7 WAS OPERATING AT A LOSS, THE SAME AS HIS INVESTIGATOR. 8 Q SO, HE DIDN'T KNOW WHAT TO DO WITH THE CASE? 9 A WELL, BASED ON MY MEETING WITH HIM, WE DIDN'T 10 SEEM TO HAVE MADE A LOT OF PROGRESS TOWARDS ACTUALLY 11 ANY CHARGES BEING FILED. AT THAT TIME I TOLD HIM I WAS 12 ONLY GOING TO COMMIT THE RESOURCES OF OUR OFFICE FOR 13 ANOTHER, I DON'T KNOW, THREE MONTHS OR SIX MONTHS, AND 14 I JUST WANTED TO GO BACK TO THE CHARGES, THE CUSTOMS 15 CHARGES THAT WE HAD ALREADY, I BELIEVE, IN THE 16 AGREEMENT WITH US, HAD ALREADY PROVEN. 4:56P 17 Q LET ME MAKE SURE I UNDERSTAND. THE CASE 18 INVOLVED SOME NORMAL CUSTOMS TYPE CHARGES? 19 A YES. 20 Q WERE THOSE PARTICULARLY NOVEL OR UNUSUAL? 21 A THAT WAS THE MARKING CASE. THE REMOVAL OF THE 22 COUNTRY OF ORIGIN. 23 Q THEY REMOVED THE COUNTRY OF ORIGIN FROM THESE 24 SKATE BOARD PADS AND SUCH? 25 A THAT'S RIGHT. 117 1 Q AND THE BANKRUPTCY ISSUE WAS THE NOVEL ISSUE, 2 IS THAT RIGHT? 3 A NOVEL TO US. YEAH, WE DON'T DO THOSE. 4 Q AND YOU HAD FELT, I THINK YOU SAID EARLIER, IT 5 SHOULD HAVE TAKEN HER SIX MONTHS TO DEAL WITH ALL THE 6 CUSTOMS ISSUES? 7 A THAT WOULD HAVE BEEN A REASONABLE AMOUNT OF 8 TIME. 9 Q AT THIS POINT, IN JANUARY/FEBRUARY OF 1999, 10 HOW LONG HAD SHE BEEN WORKING ON THIS CASE? 11 A EIGHTEEN, 19 MONTHS. 12 Q EIGHTEEN OR 19 MONTHS. 13 A DOING THE QUICK MATH IN MY HEAD. 14 Q AND AT THAT POINT, YOU DID IMMEDIATELY PULL 15 THE PLUG ON HER AND TELL HER TO SHUT THIS DOWN? 16 A NO. 17 Q YOU GAVE HER HOW MANY MONTHS? 18 A I TOLD THE PROSECUTOR I WAS ONLY GOING TO 19 DEDICATE, ALLOW HER TO PUT ANOTHER THREE TO SIX MONTHS 20 INTO IT. 21 Q WHAT HAPPENED AFTER THREE MONTHS? DID YOU 22 TELL HER TO PULL THE PLUG THEN? 4:57P 23 A NO. 24 Q WHAT HAPPENED? WAS THE CASE STILL ACTIVE WHEN 25 SHE LEFT? 118 1 A YES. MR. COOPER ARRIVED IN MAY, AND, OF 2 COURSE, I ASKED HIM TO DO A REVIEW, AND I DON'T RECALL 3 THE EXACT CONVERSATION, BUT IT WAS STILL OPEN WHEN SHE 4 RESIGNED. 5 Q SO, AT THAT POINT, SHE HAD BEEN ON THE CASE 28 6 MONTHS? 7 A OVER TWO YEARS. 8 Q OVER TWO YEARS. AND WHAT HAPPENED TO THE CASE 9 THEN? 10 A IT WAS RE-ASSIGNED TO ANOTHER AGENT, PAM 11 HERRINGTON. 12 Q WAS MS. HERRINGTON ABLE TO GET IN DOCUMENTS OR 13 DO ANYTHING IN THE CASE? 14 A PAM HERRINGTON EVENTUALLY BROUGHT THE CASE 15 THROUGH TO THE US ATTORNEY AND OBTAINED THE CHARGES ON 16 THE CUSTOMS CHARGES. 17 Q HOW LONG DID IT TAKE HER TO DO THAT? 18 A I BELIEVE IT TOOK ANOTHER YEAR, SIX MONTHS TO 19 A YEAR. 20 Q DID YOU EVER DISCIPLINE MS. FITZGERALD FOR 21 BEING, IN YOUR MIND, SO SLOW ON THAT CASE? 22 A NO. 23 Q DID YOU FEEL IT WARRANTED DISCIPLINE? 24 A IT WOULD HAVE BEEN A PERFORMANCE ISSUE THAT 25 THE SUPERVISOR SHOULD HAVE, YOU KNOW -- WOULD HAVE 119 1 DEALT WITH. 4:58P 2 Q DEALT WITH IN WHAT WAY? 3 A WELL, EITHER IN MEETING, GUIDANCE. IF THAT 4 DIDN'T WORK, IF THERE WAS PERFORMANCE ISSUES, THEN THEY 5 WOULD HAVE HAD TO DO A PERFORMANCE APPROVAL PLAN. 6 Q WHY WAS IT YOU GOT INVOLVED RATHER THAN 7 LETTING THE SUPERVISOR DEAL WITH THAT CASE? 8 A IN JANUARY, PAT SCHULTE HAD LEFT. WE HAD HAD, 9 AS I SAID, THE SERIES OF ACTORS AND, I BELIEVE, AT THAT 10 TIME, IT WAS ONE OR TWO OF THE OLD BRIDGE CASES, I 11 DON'T BELIEVE THEY WERE THE ONLY CASES I FOLLOWED UP 12 ON. I DID SOMEWHAT OF A REVIEW, TRYING TO MAKE SURE 13 THAT I CLEANED OUT THE DEAD WOOD, AND WHEN THE 14 PERMANENT SUPERVISOR ARRIVED, THAT WE WOULD HAVE A 15 CLEAN, YOU KNOW, GOOD CASES THAT HE COULD PICK UP AND 16 RUN WITH. 17 Q NOW, WE TALKED ABOUT THE OPIUM CASE THAT MR. 18 JOHNSON TOOK OVER. AND I ONLY HAVE ONE QUESTION ABOUT 19 THAT. DID MR. HENSLEY OR ANYBODY ELSE ABOVE YOU IN THE 20 CHAIN OF COMMAND EVER SPEAK WITH YOU ABOUT MS. 21 FITZGERALD'S ASSIGNMENTS OR -- EXCUSE ME, CASES THAT 22 MS. FITZGERALD GOT AS A DUTY AGENT? 4:59P 23 A NO. 24 Q WAS IT YOUR DECISION TO TRANSFER THE CASE TO 25 MR. JOHNSON OR REASSIGN IT? 120 1 A I BELIEVE SO. I BELIEVE AS AN ACTING 2 SUPERVISOR THAT I WOULD HAVE DISCUSSED IT WITH, BUT 3 PROBABLY MY FINAL DECISION ON THAT CASE, I BELIEVE SO, 4 YES. 5 Q DOES THAT HAVE ANYTHING TO DO WITH MS. 6 FITZGERALD'S EEO ACTIVITY? 7 A NO. 8 Q LET'S TURN NOW TO THE REST OF THE HOSTILE WORK 9 ENVIRONMENT CLAIM. 10 I WANT TO TALK, FIRST, ABOUT THE ENTIRE PERIOD 11 THAT YOU SUPERVISED HER, EXCEPT FOR THE FINAL THREE 12 MONTHS BEFORE HER RESIGNATION. I WANT TO COVER THAT IN 13 A LITTLE BIT. YOU TOOK OVER IN JANUARY OF 1997, RIGHT? 14 A THAT'S CORRECT. 15 Q SHE RESIGNED IN SEPTEMBER OF 1999, RIGHT? 16 A YES. 17 Q WE ARE GOING TO TALK ABOUT THE PERIOD BETWEEN 18 JANUARY OF 1997, AND JUNE OF 1999, OKAY? 19 A YES. 20 Q DURING THAT PERIOD, DID YOU EVER YELL AT MS. 21 FITZGERALD? 22 A NO. 23 Q DID YOU EVER SEE OR HEAR MR. PERBETSKY YELL AT 24 HER? 25 A NOT THAT I RECALL. 121 5:00P 1 Q DID YOU EVER HEAR ANYBODY YELL AT HER? 2 A NO. 3 Q DID SHE EVER REPORT TO YOU ANY SUCH CONDUCT? 4 A NOT THAT I RECALL. 5 Q DID ANYBODY ELSE REPORT THAT SHE HAD BEEN 6 YELLED AT? 7 A NOT THAT I RECALL. 8 Q DID YOU EVER CURSE AT HER? 9 A NO. 10 Q ARE YOU AWARE OF ANYBODY ELSE EVER CURSING AT 11 HER? 12 A NO. 13 Q DID SHE EVER REPORT THAT? 14 A NOT THAT I RECALL. 15 Q DID YOU EVER PUSH, SHOVE OR HIT HER? 16 A NO. 17 Q DID YOU EVER SEE ANYBODY ELSE PUSH, SHOVE OR 18 HIT HER? 19 A NO, I DID NOT. 20 Q DID YOU EVER GRAB HER? 21 A NO. 22 Q DID YOU EVER SEE ANYBODY ELSE GRAB HER? 23 A NO, I DID NOT. 24 Q DO YOU RECALL ANY REPORT OR INCIDENT OF 25 ANYBODY PHYSICALLY TOUCHING HER? 122 1 A NO. 2 Q DID SHE EVER REPORT TO YOU ANY SUCH CONDUCT? 3 A NOT THAT I RECALL. 4 Q DO YOU EVER CRITICIZE HER FOR BEING INVOLVED 5 IN THE EEO PROCESS? 6 A NO. 7 Q DID YOU EVER PERSONALLY HEAR ANYONE IN CUSTOMS 8 MANAGEMENT CRITICIZE HER FOR THAT? 9 A NO. 10 Q DID YOU EVER EXPRESS AN OPINION TO HER THAT 11 SHE SHOULD NOT BE INVOLVED IN THE EEO PROCESS? 12 A NO. 13 Q DID YOU EVER PERSONALLY HEAR ANYBODY ELSE DO 14 THAT? 15 A NO. 16 Q DID YOU EVER TRY TO DISCOURAGE HER FROM BEING 17 INVOLVED IN THE EEO PROCESS? 5:01P 18 A NO, I DID NOT. 19 Q DID YOU EVER PERSONALLY HEAR ANYBODY ELSE FROM 20 MANAGEMENT DO THAT? 21 A NO. 22 Q LET'S TURN TO THE AWARD'S ISSUE. DID YOU FEEL 23 THAT MS. FITZGERALD DESERVED AN AWARD FOR THE T&L 24 ENTERPRISES CASE? 25 A I BELIEVE IT WAS -- YEAH, THERE WOULD HAVE 123 1 BEEN SOME RECOMMENDATION MADE FOR AN AWARD. 2 Q DID YOU FEEL THAT SHE RECEIVED, AT ANY TIME 3 BEFORE SHE RESIGNED, AN AWARD FOR T&L ENTERPRISES? 4 A DID SHE RECEIVE? 5 Q NO. DID YOU FEEL THAT SHE DESERVED TO GET AN 6 AWARD FOR THAT BEFORE SHE RESIGNED? 7 A YES. 8 Q YOU FELT THAT SHE SHOULD HAVE RECEIVED AN 9 AWARD BEFORE SHE RESIGNED FOR T&L -- 10 A NO, I FELT THAT THE CASE AND THE WORK SHE HAD 11 DONE ON THE CASE WAS GOING TO JUSTIFY MY 12 RECOMMENDATION. 13 Q AND THAT'S THAT RAIL CAR CASE THAT RESULTED IN 14 THE SEIZURE OF 7500 POUNDS OR SO OF MARIJUANA AND 15 COCAINE? 16 A THAT'S CORRECT. 17 Q IT IS -- WHY DIDN'T SHE GET AN AWARD BEFORE 18 SHE RESIGNED, LET ME CAN ASK THAT, FOR T&L ENTERPRISES? 5:02P 19 A AWARD RECOMMENDATIONS ARE BASICALLY THE 20 DISCRETION OF THE SUPERVISOR OF THE RESIDENTS IN CHARGE 21 TO MAKE. THEY CAN BE MADE WHENEVER YOU FEEL YOU CAN 22 SUPPORT IT AND GET THE RECOMMENDATION APPROVED. 23 IN THIS CASE, WE HAD MADE THE INITIAL SEIZURE. 24 LATER IN THAT YEAR, I WAS MADE AWARE, BECAUSE IN 25 DISCUSSIONS WITH MY BOSS, YOU'RE SOMEWHAT AWARE OF HOW 124 1 MUCH OF THAT FINITE AWARD POOL IS LEFT AS TIME PROCEEDS 2 ALONG. SOMEWHERE LATE IN THAT FISCAL YEAR '98, I KNEW 3 THAT THERE WASN'T A LOT OF FUNDING LEFT. AND I DECIDED 4 TO DELAY MY RECOMMENDATION UNTIL WE COMPLETED THE CASE 5 THROUGH INDICTMENT AND THEN MAKE THE RECOMMENDATION. 6 Q ALL RIGHT. SO, THE SEIZURE WAS IN APRIL OF 7 '98, RIGHT? 8 A THAT'S CORRECT. 9 Q AND SOMEWHERE LATER IN '98 YOU DETERMINED THAT 10 THERE WAS A FAIRLY SMALL POOL AVAILABLE FOR AWARDS? 11 A YEAH, IT HAD RUN DOWN. 12 Q WHAT WAS YOUR INTENTION ON WHEN YOU WOULD 13 RECOMMEND HER FOR AN AWARD FOR T&L ENTERPRISES? 5:03P 14 A AFTER WE SECURED INDICTMENTS AGAINST THE OTHER 15 CO-CONSPIRATORS. 16 Q DIDN'T YOU ALREADY HAVE ONE INDICTMENT? 17 A I DON'T KNOW WHAT STAGE THAT WAS AT. WE HAD 18 ONE ARREST. 19 Q WHY NOT GIVE AN AWARD AFTER SHE GOT THE ONE 20 INDICTMENT? 21 A THE AWARDS RECOMMENDATION IS TO JUSTIFY THE 22 DOLLAR AMOUNTS IS BASED ON THE WORK THAT THE AGENT PUT 23 IN. THE ACCOMPLISHMENTS. THE STATISTICAL 24 ACCOMPLISHMENTS. SO, THE MORE WE HAVE, THE HIGHER 25 AWARD I CAN JUSTIFY. 125 1 Q AND AS OF THE END OF '98, WAS THE 2 INVESTIGATION STILL ONGOING? 3 A YES, IT WAS. 4 Q AND IT WAS ONGOING UNTIL SHE RESIGNED, RIGHT? 5 A YES. 6 Q IS IT UNUSUAL TO WAIT UNTIL AN INVESTIGATION 7 IS DONE BEFORE GIVING AWARDS IN A CASE? 8 A NO, IT'S PROBABLY THE MORE COMMON PRACTICE. 9 Q AND AT SOME POINT, DID YOU UNDERSTAND THERE 10 WERE GOING TO BE MORE INDICTMENTS? 11 A YES. 12 Q WHERE DID YOU GET THAT UNDERSTANDING? 13 A FROM MS. CATALAN, FROM THE SUPERVISORS, THE 14 ACTING SUPERVISORS AND MR. COOPER. 5:04P 15 Q DID SHE TELL YOU MORE THAN ONCE OR GIVE AN 16 INDICATION MORE THAN ONCE THERE WERE GOING TO BE MORE 17 INDICTMENTS? 18 A YES. 19 Q DID YOU EVER DISCUSS WITH MS. FITZGERALD YOUR 20 PLAN TO WAIT TO GIVE HER AN AWARD UNTIL SHE SECURED 21 ADDITIONAL INDICTMENTS AND COMPLETED THE INVESTIGATION? 22 A YES, I ASKED MS. CATALAN TO COME INTO MY 23 OFFICE AT SOME POINT IN LATE '98, BECAUSE I KNEW I WAS 24 RECOMMENDING SOME AWARDS FOR OTHER PEOPLE IN THE 25 OFFICE. SHE HAD HAD A SIGNIFICANT SEIZURE AND I WANTED 126 1 TO MAKE SURE THAT SHE UNDERSTOOD WHY THERE WASN'T A 2 RECOMMENDATION FOR HER THAT YEAR. 3 Q WHEN YOU TELL HER THAT, DID SHE OBJECT TO YOUR 4 WAITING TO GIVE HER THE AWARDS? 5 A NO, SHE SEEMED TO UNDERSTAND. 6 Q DID SHE EVER SECURE ANY OTHER INDICTMENTS 7 BEFORE SHE RESIGNED? 8 A NO, SHE DID NOT. 9 Q AFTER SHE RESIGNED, WAS THE CASE IMMEDIATELY 10 CLOSED? 11 A NOT IMMEDIATELY, NO. 12 Q WHAT HAPPENED TO IT? 13 A IT WAS REASSIGNED. 14 Q TO? 15 A TO AN INDIVIDUAL THAT WORKED EXTENSIVELY ON 16 THE CASE WITH HER. 17 Q RUBEN SANDIVAL? 18 A THAT'S CORRECT. 19 Q HE DIDN'T GET ANY ADDITIONAL INDICTMENTS? 5:05P 20 A NO, HE DID NOT. 21 Q AND HE EVENTUALLY CLOSED THE CASE? 22 A YES. 23 Q IF SHE HAD SECURED ADDITIONAL INDICTMENTS, 24 WHAT, IN YOUR VIEW, WOULD BE AN APPROPRIATE AMOUNT TO 25 RECOMMEND FOR AN AWARD? 127 1 A AT THAT POINT IN TIME, I PROBABLY WOULD HAVE 2 RECOMMENDED SOMEWHERE IN THE NEIGHBORHOOD OF $1500. 3 Q YOU TESTIFIED THAT YOU DISCUSSED, IN 1998, 4 WITH MS. FITZGERALD, THAT YOU WERE GOING TO WAIT UNTIL 5 SHE GOT THE ADDITIONAL INDICTMENTS UNTIL SHE GOT THE 6 AWARD. AT THAT TIME, IN LATE 1998, COULD YOU 7 IMMEDIATELY RECOMMENDED HER FOR AN AWARD? 8 A YES. 9 Q FOR THE ONE ARREST AND SEIZURE THAT OCCURRED 10 UP TO THAT TIME? 11 A THAT'S CORRECT. 12 Q WOULD YOU HAVE RECOMMENDED 1500 AT THAT TIME? 13 A NO, I WOULD NOT HAVE. 14 Q WHY NOT? 15 A BECAUSE I DON'T BELIEVE I COULD HAVE GOTTEN 16 THAT HIGH OF AN AWARD APPROVED BASED ON SIMPLY THE 17 SEIZURE ALONE IN THE ONE ARREST. 18 Q WOULD YOU FEEL, IN YOUR MIND, THOUGH, THAT 19 THAT WOULD HAVE BEEN AN APPROPRIATE AMOUNT TO RECOMMEND 20 IF YOU COULD HAVE GOT APPROVAL? 21 A 1500? NO. 22 Q WHAT DO YOU THINK WOULD HAVE BEEN AN 23 APPROPRIATE AMOUNT? 24 A I PROBABLY WOULD HAVE TRIED TO GET ONE 25 APPROVED IN THE NEIGHBORHOOD OF 750. 128 5:06P 1 Q AND YOU MENTIONED THAT THERE WAS A LIMITED 2 BUDGET. YOUR UNDERSTANDING THERE WAS A LIMITED BUDGET 3 FOR AWARDS AT THE END OF 1998? 4 A YES, MY COMMUNICATIONS WITH MY SUPERVISORS, 5 THEY MAKE US AWARE. DO YOU HAVE RECOMMENDS? THERE IS 6 SO MUCH LEFT. WE WERE AN OFFICE OF 15 OR 16 OUT OF 7 100, 180 IN THE DISTRICT, SOMETHING IN THAT 8 NEIGHBORHOOD. 9 Q WHAT WAS YOUR UNDERSTANDING OR BELIEF AS TO 10 WHAT WOULD HAVE HAPPENED IF YOU RECOMMENDED HER FOR AN 11 AWARD AT THE END OF '98? 12 A I AM NOT SURE -- MY UNDERSTANDING THERE 13 WOULDN'T HAVE BEEN SUFFICIENT FUNDING AND THEY PROBABLY 14 WOULD HAVE ASKED ME TO -- 15 Q LET'S MOVE ON TO OTHER AWARDS. YOU MENTIONED 16 THAT THE NORMAL PRACTICE IS TO WAIT UNTIL THE ENTIRE 17 INVESTIGATION IS DONE BEFORE AN AWARD IS RECOMMENDED? 18 A THAT'S CORRECT. 19 Q DO YOU EVER DEVIATE FROM THAT? 20 A YES, I HAVE, OCCASIONALLY, OVER MY CAREER. 21 Q DID MS. FITZGERALD EVER BENEFIT FROM SUCH 22 DEVIATION? 23 A YES, I RECOMMENDED AN AWARD FOR HER ON THE 24 "LAZZY LEGS" INVESTIGATION. 5:07P 25 Q THAT'S THE CASE SHE DIDN'T GET ANY INDICTMENTS 129 1 ON? 2 A I BELIEVE I MADE THE RECOMMENDATION NOT LONG 3 AFTER THE INITIAL SEIZURE OF SEARCH WARRANTS. 4 Q I AM GOING TO HAND YOU A DOCUMENT THAT'S BEEN 5 MARKED AS EXHIBIT W. CAN YOU TELL ME WHAT EXHIBIT W 6 IS? 7 A THIS IS AN AWARD RECOMMENDATION FORM. 8 Q IS THIS THE AWARD RECOMMENDATION FOR "LAZZY 9 LEGS?" 10 A YES, SIR. 11 Q OFFER EXHIBIT W. 12 (DEFENDANT'S EXHIBIT W 13 MARKED FOR IDENTIFICATION.) 14 THE COURT: ANY OBJECTION? 15 MR. BEBI: I AM SORRY, YOUR HONOR, I AM 16 RUNNING A LITTLE BEHIND. 17 THE COURT: THAT'S OKAY. 18 MR. BEBI: NO OBJECTION. 19 THE COURT: ALL RIGHT. IT WILL COME IN. 20 (DEFENDANT'S EXHIBIT W 21 ADMITTED INTO EVIDENCE.) 22 BY MR. STUTLER: 23 Q WHAT DO THE NOTATIONS OR TEXT UP HERE IN THESE 24 BOXES, WHAT DOES THAT INDICATE? 5:08P 25 A WHICH BOX? OH, I AM SORRY. 130 1 Q THAT'S ALL RIGHT. 2 A THAT'S THE AMOUNT THAT'S BEING RECOMMENDED BY 3 THE SUPERVISOR. 4 Q AND THESE ARE THE INDIVIDUALS THAT YOU ARE 5 RECOMMENDING TO -- 6 A THAT'S CORRECT. 7 Q YOU RECOMMENDED DARLENE FITZGERALD-CATALAN 8 400. JACKIE JOHNSON FOR 250? 9 A THAT'S CORRECT. 10 Q DO YOU KNOW WHEN THIS RECOMMENDATION WAS MADE? 11 A BASED ON THE DATES OF TIME PERIOD COVERED, MY 12 PRIOR TESTIMONY IS OFF, IT APPEARS AS THOUGH THE CASE 13 STARTED IN JANUARY OF '97, AND THIS WAS FOR THEIR 14 ACTIVITIES THROUGH JUNE. 15 Q WHY WOULD YOU GIVE HER THAT AWARD WHEN SHE 16 DIDN'T HAVE ANY INDICTMENTS? 17 A THIS WOULD HAVE BEEN IN CONSULTATION WITH THE 18 SUPERVISOR MIKE PERBETSKY. A COUPLE OF REASONS. 19 ONE, AS I INDICATED EARLIER, PERRY JOHNSON 20 SAID THERE WAS A MORALE PROBLEM IN THE OFFICE. I 21 WANTED TO TRY AND FOSTER THOSE POSITIVE -- YOU KNOW, 22 THAT HARD WORK WOULD BE RECOGNIZED. DARLENE AND JACKIE 23 PUT AN EXTENSIVE AMOUNT OF TIME INTO GETTING THE 24 WARRANTS PREPARED, AND THE END RESULT OF THE WARRANTS, 25 I BELIEVE, IS WE HAD A LOT OF PADS. A LOT OF PRODUCT 131 1 THAT HAD TO BE INVENTORIED AND CATEGORIZED AND SUCH. 5:10P 2 Q THIS WOULD HAVE BEEN IN OR AFTER JUNE OF 1997? 3 A YES, I BELIEVE SO. 4 Q SO, THAT WOULD HAVE BEEN AFTER THE INCIDENT 5 WITH HER CAR? 6 A I DON'T KNOW THE EXACT DAYS, BUT SOMEWHERE IN 7 THE SAME NEIGHBORHOOD, YES. 8 Q IT WOULD HAVE BEEN AFTER SHE WAS DENIED THE 9 PROMOTION BACK IN 1996? 10 A THAT'S CORRECT. 11 Q AND IT'S MY UNDERSTANDING SHE ACCUSED MR. 12 PERBETSKY FOR INCRIMINATING AGAINST HER -- RETALIATING 13 AGAINST HER FOR BOTH OF THOSE? 14 A YES. 15 Q ARE YOU AWARE THAT SHE ACCUSED YOU OF GIVING 16 HER THIS AWARD TOO EARLY IN THE CASE? 17 A I HAVE BEEN MADE AWARE OF THAT, YES. 18 Q ARE YOU AWARE THAT SHE ALSO SAID YOU AWARDED 19 IT TOO EARLY TO LIMIT THE AMOUNT OF THE AWARD? 20 A NO. I COULD HAVE RECOMMENDED A SECOND AWARD, 21 IF I CHOSE TO. 22 Q AND DID YOU? 23 A NO. 24 Q IS THERE ANY REASON YOU DIDN'T? 25 A WELL, WE NEVER -- THIS AWARD RECOMMENDATION 132 1 INDICATES THAT INDICTMENTS ARE EXPECTED IN THE NEXT 60 2 DAYS, AND THAT WAS IN JUNE OF '97. 5:11P 3 Q SHE WAS THERE FOR ANOTHER TWO YEARS? 4 A AND SHE NEVER SECURED THE INDICTMENTS. SO, IT 5 WOULD HAVE BEEN HARD TO HAVE GOTTEN THAT APPROVED. 6 Q JULY 27, 1999, DID YOU RECOMMEND HER FOR AN 7 EMPLOYEE RECOGNITION? 8 A I RECOMMENDED THE ENTIRE OFFICE BECAUSE I FELT 9 THEY ALL STEPPED UP AND DID A GOOD JOB HELPING ME GET 10 THE OFFICE MOVED. 11 Q I AM GOING TO HAND YOU A DOCUMENT THAT'S BEEN 12 MARKED AS EXHIBIT BD. IT'S A TWO-PAGE DOCUMENT. TELL 13 ME -- TELL THE JURY WHAT THIS IS? 14 A THIS IS THE AWARD OF RECOMMENDATION FOR THE 15 PERSONNEL THAT WERE ASSIGNED TO OUR OFFICE WHEN WE 16 MOVED FROM AN OLDER LOCATION TO THE NEW OFFICE SPACE. 5:12P 17 (DEFENDANT'S EXHIBIT BD 18 MARKED FOR IDENTIFICATION.) 19 MR. STUTLER: OFFER EXHIBIT BD. 20 MR. BEBI: NO OBJECTION. 21 THE COURT: ALL RIGHT. IT WILL COME IN. 22 (DEFENDANT'S EXHIBIT BD 23 ADMITTED INTO EVIDENCE.) 24 BY MR. STUTLER: 25 Q IT SAYS HERE "DINNER FOR TWO." WERE YOU 133 1 GIVING THESE PEOPLE DINNER? 2 A I BELIEVE THEY ACTUALLY RECEIVED A MONETARY 3 SUM THAT WAS PREDETERMINED. IT'S NOT AT RUTH CHRIS. 4 Q I AM SORRY, IT'S NOT -- 5 A IT WAS $50, I BELIEVE, OR SOMETHING. 6 Q DARLENE CATALAN'S NAME IS ON THE THIRD LINE 7 DOWN, ON EMPLOYEE NAME? 8 A YES, SIR. 9 Q AND THIS IS PAGE TWO THAT I AM SHOWING ON THE 10 DISPLAY OF EXHIBIT BD? 11 A YES. 12 Q DID YOU EVER TELL MS. CATALAN -- MS. 13 FITZGERALD THAT THIS DINNER FOR TWO WAS AN AWARD FOR 14 "OPERATION RIGHT RAIL"? 15 A NO, SIR. 16 Q DID SHE EVER ASK YOU WHAT IS THIS AWARD FOR? 17 A I DON'T RECALL THAT SPECIFIC CONVERSATION, NO. 5:13P 18 Q DO YOU REMEMBER ANYBODY EVER SUGGESTING THAT 19 THIS AWARD HAD ANYTHING TO DO WITH "OPERATION RIGHT 20 RAIL?" 21 A NO. 22 Q DID THIS AWARD HAVE ANYTHING TO DO WITH 23 "OPERATION RIGHT RAIL?" 24 A NO, SIR. 25 Q ARE YOU FAMILIAR WITH AN OPERATION CALLED, 134 1 "DESERT CAR WASH?" 2 A YES, I AM. 3 Q AND FOR HIS HONOR'S BENEFIT, DO YOU KNOW HOW 4 THAT GOT IT'S NAME? 5 THE COURT: I FIGURED THAT OUT. 6 THE WITNESS: THAT RELATED TO AN INVESTIGATION 7 ON INDIVIDUALS THAT OWNED AND OPERATED CAR WASHES. 8 BY MR. STUTLER: 9 Q IN THE DESERT? 10 A THAT CASE WAS INITIATED BEFORE MY ARRIVAL. IT 11 MAY HAVE BEEN THE NAME OF THE CAR WASH. 12 THE COURT: COULD BE LIKE SOMEONES NICKNAME 13 TINY WHO'S SIX FOOT SIX AND WEIGHED 320 POUNDS. 14 MR. STUTLER: THAT'S TRUE. 15 (DEFENDANT'S EXHIBIT AA 16 MARKED FOR IDENTIFICATION.) 17 BY MR. STUTLER: 18 Q I AM GOING TO HAND YOU A DOCUMENT THAT'S BEEN 19 MARKED FOR IDENTIFICATION -- THAT'S BEEN MARKED AS 20 EXHIBIT AA. HAVE YOU SEEN THIS DOCUMENT BEFORE? 5:14P 21 A YES, SIR. 22 Q TELL THE JURY WHAT IT IS? 23 A THIS IS AN AWARD RECOMMENDATION FOR FOUR 24 SPECIAL AGENTS WHO WERE ASSIGNED TO THE "DESERT CAR 25 WASH" INVESTIGATION. 135 1 Q I AM SORRY? 2 A I WAS LOOKING FOR THE NAME THAT YOU 3 REFERENCED. 4 Q "DESERT CAR WASH." 5 A CASE NAME. 6 Q IS THIS FOR "DESERT CAR WASH?" 7 A YES. 8 Q IS MS. FITZGERALD NAMED ON THERE IN ANY 9 VERSION? 10 A YES. 11 Q DARLENE CATALAN? 12 A DARLENE CATALAN IS LISTED. THE FOURTH AGENT 13 LISTED. 14 MR. STUTLER: OFFER EXHIBIT AA. 15 MR. BEBI: NO OBJECTION. 16 THE COURT: ALL RIGHT. IT WILL BE ADMITTED 17 WITHOUT OBJECTION. 18 (DEFENDANT'S EXHIBIT AA 19 ADMITTED INTO EVIDENCE.) 20 BY MR. STUTLER: 21 Q WERE THERE OTHER AGENTS INVOLVED IN THIS 22 PROJECT? 23 A THE CASE AGENT WAS LILLIAN MOLOIAN. ROBERT 24 MATTIVI WAS ASSIGNED, UPON MY ARRIVAL, TO ASSIST HER IN 25 THE CONDUCT OF THE WIRE TAPE INVESTIGATION. 136 1 Q MR. GERVACIO? 2 A MR. GERVACIO I DON'T RECALL HIS ROLE. 3 Q AND WHEN WOULD THIS EMPLOYEE RECOGNITION AWARD 4 HAVE BEEN ISSUED? 5 A WELL, THIS COVERS THE TIME PERIOD FROM OCTOBER 6 '96 UNTIL JULY OF '97. 7 Q WOULD IT HAVE BEEN IN OR AFTER JULY OF '97? 8 A UP THROUGH, YES. 9 Q CAN YOU TELL ME WHOSE NAME IS SIGNED AT THE 10 BOTTOM OF THIS FORM? 11 A MICHAEL PERBETSKY, THE GROUP SUPERVISOR. 12 Q THIS WOULD HAVE BEEN A MONTH AFTER THE CAR 13 INCIDENT? 14 A YES, SIR. 15 Q WOULD HAVE BEEN TEN MONTHS AFTER THE 16 PROMOTION? 17 A YES, SIR. 18 Q DID MR. PERBETSKY EVER TELL YOU THAT, "I DON'T 19 WANT TO GIVE MS. CATALAN ANY AWARD FOR THIS?" 20 A NO, SIR. 5:16P 21 Q LET'S JUMP TO THE TRAINING. THERE HAVE BEEN 22 SOME TESTIMONY ABOUT MS. FITZGERALD NOT GOING TO 23 UNDERCOVER CLASSES. TELL ME DURING THE TIME YOU WERE 24 AT RAC/RIVERSIDE WHILE SHE WAS THERE DID YOU RECOMMEND 25 THAT ANYBODY GO TO UNDERCOVER CLASSES? 137 1 A NOT THAT I RECALL. 2 Q WAS YOUR RECOMMENDATION NECESSARY FOR THEM TO 3 GO TO THAT CLASS? 4 A YES. 5 Q AND DID YOU BASE THAT DECISION ON ANYBODIES 6 EEO ACTIVITY? 7 A NO, SIR. 8 Q WERE THERE ANY UNDERCOVER OPERATIONS RUN OUT 9 OF YOUR OFFICE WHILE YOU WERE THERE AND MS. FITZGERALD 10 WERE THERE? 11 A NO, SIR. 12 Q WERE THERE ANY PROPOSED UNDERCOVER OPERATIONS 13 IN THE OFFICE AT THAT TIME? 14 A NO, SIR. 15 Q DID YOU HAVE ANY REASON TO SEND HER TO THE 16 UNDERCOVER SCHOOL? 17 A NO. THE PRIORITY GOES TO PEOPLE WHO HAVE 18 ONGOING -- TO TRAIN AGENTS WHO ARE INVOLVED IN ONGOING 19 OPERATIONS. 20 Q AND THAT WOULD NOT INCLUDE MS. FITZGERALD? 5:17P 21 A THAT'S CORRECT. 22 Q YOU'RE NOT RECOMMENDING HER HAVE ANYTHING TO 23 DO WITH HER EEO ACTIVITY? 24 A NO. 25 Q PHYSICAL FITNESS SCHOOL, DID YOU EVER 138 1 RECOMMEND MS. FITZGERALD FOR PHYSICAL FITNESS 2 INSTRUCTOR SCHOOL? 3 A YES. 4 Q DURING THE ENTIRE TIME YOU WERE THERE DID YOU 5 EVER RECOMMEND ANYBODY ELSE WHILE SHE WAS THERE? 6 A I DON'T BELIEVE SO. 7 Q AT SOME POINT, DID YOU RECEIVE WORD THAT THE 8 SAIC LA WAS NOT GOING TO SEND ANYBODY TO THE SCHOOL? 9 A ON ONE THEY RUN VARIOUS SCHOOLS. NOT ALWAYS 10 ONE A YEAR. SO, THERE MAY HAVE BEEN MORE THAN ONE 11 CLASS THAT OPPORTUNITY THAT CAME UP. AT LEAST ONE OF 12 THOSE OCCASIONS, YES, I WAS TOLD THAT THE SAIC OFFICE 13 HAD MADE A DECISION NOT TO HAVE ANYONE GO. 14 Q DID MS. FITZGERALD HAVE AN APPLICATION IN AT 15 THE TIME? 16 A I BELIEVE SO. 17 Q WAS SHE THE ONLY ONE IN THE ENTIRE REGION WHO 18 HAD AN APPLICATION IN? 19 A I DON'T BELIEVE. 20 Q DID SHE GO TO THE PHYSICAL FITNESS TRAINER 21 INSTRUCTOR SCHOOL IN 1999? 5:18P 22 A YES. 23 Q THAT WAS ABOUT TWO MONTHS BEFORE SHE RESIGNED? 24 A THAT'S CORRECT. 25 Q DID SHE REQUIRE YOUR CONCURRENCE TO GO? 139 1 A YES. 2 Q COULD SHE HAVE GONE WITHOUT YOUR CONCURRENCE? 3 A NO. 4 Q LET'S TALK ABOUT THE CONSTRUCTIVE DISCHARGE 5 AND FOCUS ON THE LAST THREE MONTHS OF MS. FITZGERALD'S 6 TIME THERE BEFORE SHE RESIGNED. DURING THAT PERIOD DID 7 YOU EVER YELL AT HER? 8 A NO. 9 Q DID YOU EVER HEAR ANYBODY ELSE YELL AT HER? 10 A NO, I DID NOT. 11 Q DID SHE EVER REPORT TO YOU THAT ANYBODY HAD 12 YELLED AT HER? 13 A NOT THAT I RECALL. 14 Q DID YOU EVER CURSE AT HER DURING THAT LAST 15 THREE MONTH PERIOD? 16 A NO. 17 Q DID YOU EVER HEAR ANYBODY ELSE CURSE AT HER? 18 A NO. 19 Q DID SHE HAVE REPORT TO YOU ANYBODY THAT THE 20 CURSED AT HER? 21 A NO. 22 Q DID SHE EVER PUSH, SHOVE, HIT OR GRAB HER? 23 A NO. 24 Q DID YOU EVER SEE ANYBODY ELSE DO THAT? 25 A NO. 140 1 Q DID YOU EVER GET REPORT THAT ANYBODY DID THAT? 2 A NO. 3 Q DO YOU RECALL ANYBODY EVER PHYSICALLY TOUCHING 4 HER DURING HER LAST THREE MONTHS THERE? 5 A NO. 6 Q DID SHE EVER REPORT TO YOU ANY SUCH CONDUCT? 7 A NOT THAT I RECALL. 8 Q DURING THAT PERIOD DID YOU CRITICIZE HER FOR 9 BEING INVOLVED IN THE EEO PROCESS? 5:19P 10 A NO. 11 Q DID YOU PERSONALLY HEAR ANYBODY ELSE CRITICIZE 12 HER FOR THAT? 13 A NO. 14 Q DID YOU EXPRESS ANY OPINION, DURING THE LAST 15 THREE MONTHS, THAT SHE SHOULD NOT BE INVOLVED IN THE 16 EEO PROCESS? 17 A NO. 18 Q DID YOU PERSONALLY HEAR ANYBODY ELSE DO THAT? 19 A NO, SIR. 20 Q DID SHE REPORT TO YOU ANYBODY HAD DONE THAT? 21 A NO. 22 Q DID YOU EVER TRY TO DISCOURAGE HER, DURING 23 THAT PERIOD, FOR BEING INVOLVED IN THE EEO PROCESS? 24 A NO. 25 Q DID YOU PERSONALLY HEAR ANYBODY ELSE DO THAT? 141 1 A NO, SIR. 2 MR. STUTLER: PASS THE WITNESS. 3 THE COURT: ALL RIGHT. THANK YOU. MR. BEBI. 4 MR. BEBI: THANK YOU, YOUR HONOR. 5 CROSS EXAMINATION 6 BY MR. BEBI 7 Q YOU WERE ASKED IF IT WAS TRUE THAT YOU 8 RECEIVED NO COMPLAINTS FROM CO-WORKERS REGARDING HOW 9 MS. FITZGERALD WAS TREATED IN JUNE OF '97, AND YOU 10 ANSWERED THAT YOU HAD NOT RECEIVED ANY COMPLAINTS FROM 11 CO-WORKERS, ISN'T THAT CORRECT? WAS THAT YOUR ANSWER? 5:21P 12 A I BELIEVE. I DON'T RECALL. 13 Q WELL, ISN'T IT TRUE THAT MR. SANDOVAL WAS 14 COMPLAINING ABOUT THE WAY MS. FITZGERALD WAS TREATED, 15 AS WELL AS HIMSELF? 16 A MR. SANDOVAL HAD FILED A COMPLAINT, I KNOW, AS 17 OF JUNE '97. 18 Q WELL -- 19 A I DON'T RECALL ANY SPECIFIC DISCUSSIONS OVER 20 BEING MISTREATED. 21 Q WELL, IN THAT COMPLAINT HE ALLEGED THAT HE WAS 22 MISTREATED, DIDN'T HE? 23 A I DON'T RECALL THE SPECIFICS. I DON'T KNOW IF 24 I WAS EVER PROVIDED A COPY OF IT. 25 Q OKAY. NOW, YOU TALKED A LITTLE BIT ABOUT THE 142 1 UNDERCOVER POINTS THAT SOME OF THE AGENTS WERE TRYING 2 TO OBTAIN FOR THEIR PROMOTIONS SCORES, DO YOU RECALL 3 THAT CONVERSATION? 4 A YES, SIR. 5 Q AND YOU SAID SOMETHING THAT THERE WAS AN ISSUE 6 AS TO WHETHER OR NOT THEY MADE PHONE CALLS, AND I IMAGE 7 THEY SAID THEY WERE SOMEONE OTHER THAN WHO THEY REALLY 8 WERE, WHETHER THAT WOULD QUALIFY FOR ANY KIND OF 9 POINTS? 5:22P 10 A IT QUALIFIED FOR, YEAH, BASICALLY THE LOWEST 11 CATEGORY. 12 Q WOULDN'T BEING IN A JACUZZI WITH SOME 13 COLOMBIAN DRUG LORDS IMPERSONATING SOMEONE IN THE DRUG 14 TRADE, WOULDN'T THAT QUALIFY AS UNDERCOVER ACTIVITY? 15 A YEAH, I WOULD HAVE TO HAVE THE CATEGORIES 16 AGAIN, BUT, YES. 17 Q CERTAINLY MORE THAN CALLING SOMEONE UP ON THE 18 PHONE AND SAYING YOU'RE JOE BLOW AND YOU'RE ACTUALLY A 19 CUSTOMS AGENT, CORRECT? 20 A YEAH, THEY DEFINED THE VARIOUS CATEGORIES. 21 Q AND THE TELEPHONE, JUST TO BE CLEAR, THE 22 TELEPHONE CALLING QUESTION WAS NOT DARLENE'S QUESTION. 23 IT WAS NOT CONCERNING HER POINTS, CORRECT? 24 A NO. I BELIEVE, AS I TESTIFIED, IT WAS ONE 25 THAT HAD APPLIED TO SEVERAL OTHER CANDIDATES. 143 1 Q YOU ALSO TESTIFIED THAT DARLENE DIDN'T 2 COMPLAINT TO YOU ABOUT MR. PERBETSKY DURING THE FIRST 3 TEN MONTHS THAT YOU WERE ON BOARD, IS THAT CORRECT? 4 MR. STUTLER: I THINK THAT MISSTATES OTHER 5 THAN CAAPS. 5:23P 6 THE COURT: I AM SORRY? 7 MR. STUTLER: THE QUESTION AND ANSWER POSED IS 8 OTHER THAN CAAPS. THE ISSUE IS DID SHE COMPLAIN ABOUT 9 HIM. 10 THE COURT: ALL RIGHT. SO, DOES YOUR QUESTION 11 INCLUDE THE CAAPS. 12 MR. BEBI: YES. 13 THE COURT: OKAY. OTHER THAN THE FACT THAT 14 SHE WANTED YOU TO DO THE REVIEWING OF THE SCORES 15 BECAUSE SHE DIDN'T FEEL MR. PERBETSKY HADN'T REVIEWED 16 THE CAAPS SCORES CORRECTLY, RIGHT? 17 MR. BEBI: CORRECT. 18 THE COURT: OKAY. 19 THE WITNESS: DO I RECALL HER? NO, I DON'T. 20 BY MR. BEBI: 21 Q WELL, YOU SAID SHE HANDED YOU A COPY OF HER 22 EEO COMPLAINT, ISN'T THAT CORRECT? 23 A THAT WAS IN OCTOBER, YES. 24 Q AND IN OCTOBER, WHEN SHE HANDED YOU A COPY OF 25 THE EEO COMPLAINT, IT SET FORTH A LIST OF THINGS THAT 144 1 SHE WAS COMPLAINING ABOUT MR. PERBETSKY, ISN'T THAT 2 CORRECT? 3 A I WOULD HAVE TO REVIEW IT. I DON'T RECALL 4 WHAT WAS ALL IN IT. 5 Q DIDN'T YOU REVIEW IT AT THE TIME? 6 A MOST LIKELY. 7 Q AS YOU SIT HERE TODAY, YOU DON'T RECALL THAT 8 SHE WAS COMPLAINING ABOUT THE FACT THAT MR. PERBETSKY 9 SHOWED FAVORITISM TOWARDS MALE EMPLOYEES? 5:24P 10 A I DON'T RECALL. 11 Q YOU DON'T RECALL HER COMPLAINING THAT MR. 12 PERBETSKY SHOWED FAVORITISM TOWARD MALE EMPLOYEES, 13 ESPECIALLY MIKE ARNOLD? 14 A QUITE POSSIBLY. 15 Q YOU WERE ASKED SOME QUESTIONS ABOUT WHETHER OR 16 NOT MS. FITZGERALD CONTACTED YOU ON MARCH 24TH, TO TRY 17 TO OBTAIN ADMINISTRATIVE LEAVE TO GO TO HER EEO 18 PROCESS, DO YOU RECALL THAT? 19 A YES. 20 Q AND, AGAIN, SHE WOULDN'T CONTACT YOU. SHE 21 WOULD CONTACT HER SUPERVISOR, ISN'T THAT CORRECT? 22 A THAT'S CORRECT. 23 Q AND YOU WERE ASKED THE SAME QUESTION FOR MARCH 24 25TH, AND YOUR ANSWER WOULD BE THE SAME, CORRECT? 25 A YES, SIR. 145 1 Q AS WELL AS MARCH 26TH, CORRECT? 2 A YES, SIR. 3 Q NOW, YOUR TESTIMONY, LET'S GO TO THE 4 CONTROLLED DELIVERY, IS THAT YOU BELIEVE YOU DISCUSSED 5 LIFTING THE SURVEILLANCE WITH HER, ISN'T THAT RIGHT? 5:25P 6 A WITH HER AND FRANK PROBABLY. AS THESE THINGS 7 PROGRESS, THE AGENTS ARE OUT IN THE FIELD, THE 8 SUPERVISORS ARE OUT IN THE FIELD. WE ARE WORKING 24 9 HOUR SHIFTS. SO, I CAN'T SAY THAT THERE WERE SPECIFIC 10 SIT DOWN. BUT IN ORDER TO TAKE IT DOWN ON SATURDAY, WE 11 NEEDED TO HAVE THE SEARCH WARRANTS PREPARED, TO HAVE 12 THE TEAMS PREPARED, TO EXECUTE THE WARRANTS AT THE 13 VARIOUS SITES. SO, OBVIOUSLY EVERYONE KNEW THAT IT WAS 14 GOING TO BE TAKEN DOWN ON SATURDAY. 15 Q OKAY. LET'S FOCUS ON THAT. THAT'S TWO 16 DIFFERENT THINGS. ONE IS THAT YOU'RE QUITE SURE THAT 17 YOU SPOKE WITH HER. ANOTHER ONE YOU'RE QUITE SURE SHE 18 GOT THE INFORMATION? 19 MR. STUTLER: OBJECTION, THAT MISSTATES -- HE 20 NEVER STATED HE WAS QUITE SURE HE HAD SPOKEN WITH HER. 21 THE COURT: OVERRULED. 22 BY MR. BEBI: 23 Q BASICALLY WHAT I AM TRYING TO GET AT IS ARE 24 YOU QUITE SURE SHE RECEIVED THE INFORMATION, OR ARE YOU 25 SURE YOU SPOKE DIRECTLY WITH HER ABOUT THE ISSUE? 146 5:26P 1 A DO THE FIRST ONE? YOU HAD LIKE A TWO-PARTER 2 THERE. 3 Q SURE. AS I UNDERSTAND YOUR ANSWER, THERE ARE 4 LOTS OF THINGS GOING ON, CORRECT? 5 A RIGHT. 6 Q AND YOU ARE HAVING CONVERSATIONS WITH FRANK 7 DAY, CORRECT? 8 A RIGHT. 9 Q HE IS THE ACTING SUPERVISOR, CORRECT? 10 A RIGHT. 11 Q AND YOU USUALLY WORK THROUGH THE CHAIN OF 12 COMMAND, CORRECT? 13 A THAT'S CORRECT. 14 Q AND THE BOTTOM LINE IS THAT YOU SAID THAT YOU 15 ARE QUITE SURE SHE GOT THE INFORMATION, IS THAT 16 CORRECT? 17 A YES. 18 Q BUT AS I HEAR YOU TESTIFY NOW, YOU'RE NOT 19 REALLY QUITE SURE WHETHER YOU HAD THAT CONVERSATION 20 WITH HER FACE TO FACE, THAT YOU WERE PULLING THE 21 SURVEILLANCE BEFORE THE SURVEILLANCE WAS PULLED? 22 A I AM QUITE SURE I WOULD HAVE BECAUSE I WAS 23 THERE. I WAS THERE WHEN WE EXECUTED THE SEARCH 24 WARRANTS. SO, I WAS THERE -- IF THERE WAS ANY 25 QUESTION, OR IF I HAD CHOSE TO GO INTO MY REASONING 147 1 BEHIND IT, I WOULD HAVE DONE SO AT THAT TIME. 5:27P 2 Q ALL RIGHT. DID YOU HAVE ANY CONVERSATION WITH 3 MS. PALAZUELOS ABOUT PULLING HER SURVEILLANCE? 4 A I DON'T RECALL SPEAKING WITH HER AT THAT TIME. 5 Q AND YOU DO RECALL THAT NO ONE TOLD YOU THAT 6 THE CONFIDENTIAL INFORMANT OR THE COOPERATING WITNESS 7 WAS GIVING INFORMATION THAT THE CROOKS WERE WAITING FOR 8 THE SURVEILLANCE TO BE PULLED TO TRY TO GRAB THE DRUGS, 9 IS THAT CORRECT? 10 A YES. 11 Q CAN YOU POINT TO A WRITING ANYWHERE THAT 12 INDICATES THAT YOU TOLD MS. FITZGERALD AND DISCUSSED 13 PULLING THE SURVEILLANCE WITH HER DIRECTLY, AS OPPOSED 14 THROUGH MR. FRANK DAY OR ANY OTHER SECONDARY MEANS? 15 A THERE WOULD BE NO SUCH DOCUMENTATION. 16 Q NOW, THE COOPERATING WITNESS, YOU DESCRIBED 17 HIM AS A MULE, IS THAT CORRECT? 5:28P 18 A I BELIEVE MR. STUTLER CATEGORIZED HIM AS A 19 MULE. 20 Q I THINK YOU AGREED WITH HIM. MR. STUTLER'S 21 STATEMENTS ARE NOT EVIDENCE. 22 A IT'S A LOW LEVEL POSITION, YES. 23 Q DID YOU EVER SPEAK WITH THIS PERSON DIRECTLY? 24 A I DON'T RECALL. 25 Q DID YOU EVER DEBRIEF HIM? 148 1 A I DON'T BELIEVE I DID. 2 Q AND IF I UNDERSTOOD YOU CORRECTLY, YOU WERE 3 GETTING PRESSURE FROM YOUR SUPERIORS TO WRAP UP OF THIS 4 CASE AFTER A CERTAIN POINT IN TIME, ISN'T THAT CORRECT? 5 A I DON'T KNOW IF WRAP IT UP WOULD BE THE PROPER 6 TERMINOLOGY. I WOULD LIKE TO SEE SOME PROGRESS. 7 Q OKAY. BRIEFLY YOU WERE ASKED ABOUT THE 8 ROI'S.. ISN'T IT TRUE THAT ONCE AN ROI ON A CASE, ON A 9 CLOSED CASE IS INPUT INTO THE SYSTEM, IT CAN'T BE 10 AMENDED? 11 A THAT'S CORRECT. 5:29P 12 Q AND ISN'T IT ALSO TRUE THAT ROI'S THAT MS. 13 FITZGERALD WAS ASKED TO DO SOMETHING WITH WERE ALL 14 PREVIOUSLY APPROVED BY HER SUPERVISOR, WHOEVER THAT MAY 15 HAVE BEEN AT THE TIME? 16 A I AM SORRY, I DON'T REMEMBER -- I DON'T RECALL 17 DISCUSSING THIS -- 18 Q OKAY. 19 A -- PREVIOUSLY. 20 Q ARE YOU TALKING ABOUT WITH MR. STUTLER OR 21 PREVIOUS TO TODAY? 22 A NO, I MEAN IN HERE WITH YOU OR -- 23 MR. STUTLER: OBJECTION, YOUR HONOR. IT GOES 24 BEYOND THE SCOPE OF DIRECT. 25 MR. BEBI: YOUR HONOR, I KNOW -- 149 1 THE COURT: NO, NO, NO, NO, OVERRULED. WE ARE 2 NOT GOING TO HAVE THE WITNESSES MAKING OBJECTIONS TO 3 QUESTIONS. 4 THE WITNESS: I DIDN'T MEAN TO DO THAT, YOUR 5 HONOR. 6 BY MR. BEBI: 7 Q LET ME PUT THE QUESTION TO YOU THIS WAY. 8 WHETHER OR NOT MR. STUTLER ASKED YOU ABOUT THAT, OKAY, 9 DO YOU RECALL WHETHER OR NOT THE ORI'S THAT MS. 10 CATALAN-FITZGERALD WAS ASKED TO LOOK AT, HAD ALREADY 11 BEEN PREVIOUSLY APPROVED BY HER SUPERVISOR, WHOEVER 12 THAT PERSON MAY HAVE BEEN, BEFORE? 5:31P 13 A MOST LIKELY, YES. BY SOMEONE. 14 Q I AM GOING TO SHOW YOU A DOCUMENT THAT WE HAVE 15 PREVIOUSLY MARKED AS EXHIBIT 111, AND, I BELIEVE, 111 16 IS IN EVIDENCE. NO, IT IS NOT. 17 LET ME SHOW YOU WHAT WE MARKED AS EXHIBIT 111, 18 AND HAVE YOU EVER SEEN THAT DOCUMENT BEFORE? 19 A I DON'T RECALL. 20 Q DO YOU RECALL MR. COOPER COMING INTO YOUR 21 OFFICE AND SAYING WORDS TO THE EFFECT THAT MS. 22 FITZGERALD IS UPSET BECAUSE "OPERATION RIGHT RAIL" WAS 23 NAMED SPS PROJECT OF THE YEAR, AND HER NAME IS NOT ON 24 THE NOTICE? 5:32P 25 A NOT SPECIFICALLY. 150 1 Q ALL RIGHT. YOU CAN RETURN THAT DOCUMENT TO 2 ME, PLEASE. BEFORE I DO THAT, VERY QUICKLY, DO YOU 3 RECOGNIZE THE HANDWRITING ON THE DOCUMENT? 4 A POSSIBLY DARLENE'S. 5 Q DID YOU EVER HAVE A CONVERSATION WITH MR. 6 COOPER ALONG THE LINES OF MR. COOPER COMING TO YOU AND 7 SAYING, "YOU KNOW, I THINK DARLENE IS DELUSIONAL. SHE 8 THINKS SHE HAS BEEN ON THIS SPS PROJECT AND HAS WRITTEN 9 ME A HANDWRITTEN NOTE." 10 A NO, I DON'T RECALL THAT. 11 Q DID YOU HAVE ANY CONVERSATIONS WITH ANYBODY 12 SAYING, "IS DARLENE HALLUCINATING THAT SHE IS ON 13 OPERATING RIGHT RAIL, THAT SHE THINKS SHE IS ON THE 14 PROJECT WHEN SHE NEVER WAS ON THE PROJECT?" 5:33P 15 A I HAVE NO SPECIFIC RECOLLECTION OF THAT. 16 Q YOU TALKED ABOUT THE INORDINATE LENGTH OF TIME 17 IT TOOK FOR THE "LAZZY LEGS" INVESTIGATION TO UNFOLD, 18 IS THAT CORRECT? 19 A YES, SIR. 20 Q AND YOU MUST ADMIT THIS WAS A RATHER UNUSUAL 21 CASE FROM A CUSTOMS INVESTIGATION, CORRECT? 22 A IT WAS UNUSUAL FOR US TO BE DOING IT BECAUSE 23 IT WASN'T OUR JURISDICTION, THAT IS CORRECT. 24 Q WELL, FIRST OF ALL, IT STARTED WITH WHAT YOU 25 CALL A CUSTOMS MARKING VIOLATION, IS THAT RIGHT? 151 1 A YES, SIR. 2 Q AND THEN THERE WAS A BANKRUPTCY FILED, IS THAT 3 CORRECT? 4 A I BELIEVE THE BANKRUPTCY HAD BEEN FILED BEFORE 5 THAT. 6 Q OKAY. SOMETIME OR ANOTHER THERE WAS A 7 INVESTIGATION AS TO WHETHER THE BANKRUPTCY WAS 8 FRAUDULENT OR A FRAUD WAS INVOLVED IN THE BANKRUPTCY, 9 CORRECT? 5:34P 10 A THAT'S WHAT DARLENE WANTED TO PURSUE, CORRECT? 11 Q AND THEN A QUESTION AROSE AS TO WHETHER OR NOT 12 THE BANKRUPTCY FRAUD WAS RELATED TO MONEY LAUNDERING, 13 IS THAT CORRECT? 14 A I DON'T BELIEVE I UNDERSTAND YOUR QUESTION. 15 Q WELL, DURING THE PROCESS OF THE INVESTIGATION 16 OF THE "LAZZY LEGS" CASE THAT YOU SAID TOOK SO LONG, I 17 AM TRYING TO TAKE IT STEP BY STEP, IT STARTED OUT AS A 18 MARKING CASE, CORRECT? 19 A CORRECT. 20 Q AND THOSE DON'T TYPICALLY TAKE THAT LONG, 21 MARKING CASES? 22 A CORRECT. 23 Q AND THEN THERE WAS AN ISSUE AS TO THE 24 BANKRUPTCY FRAUD THAT NO ONE IN THE OFFICE REALLY HAD 25 EXPERIENCE WITH, IS THAT FAIR? 152 1 A THAT'S CORRECT. 2 Q AND I AM ASKING IF IN ADDITION TO THE 3 BANKRUPTCY FRAUD THERE WAS AN INDICATION THAT THE 4 BANKRUPTCY FRAUD WAS PART OF A MONEY LAUNDERING 5 OPERATION? 6 A I DON'T RECALL SPECIFICALLY. 7 Q YOU DON'T RECALL THAT. NOW, WOULD MONEY 8 LAUNDERING BE SOMETHING THAT THE CUSTOMS AGENT WOULD 9 LOOK AT? 10 A YES. 11 Q ISN'T IT TRUE THAT TYPICALLY FRAUD CASES TAKE 12 LONGER THAN SIX MONTHS TO DEVELOP IN THE INVESTIGATION 13 STAGE? 5:35P 14 A NO, I BELIEVE THERE IS A MISNOMER THAT JUST 15 WHEN YOU SAY FRAUD, A LOT OF AGENTS THINK, OKAY, THIS 16 WILL TAKE TWO TO THREE YEARS. BUT THERE ARE, AS I 17 SAID, I SUPERVISED CASES SPECIFICALLY LIKE THIS THAT 18 WERE -- THAT DID NOT TAKE THAT MUCH TIME. 19 Q YOU SUPERVISED, SPECIFICALLY, A CASE THAT 20 INVOLVED BANKRUPTCY ISSUES AND MONEY LAUNDERING ISSUES 21 CONNECTED TO BANKRUPTCY FRAUD, IN ADDITION TO CUSTOMS 22 MARKING VIOLATIONS THAT TOOK SIX MONTHS FROM BEGINNING 23 TO END? 24 A NO, I BELIEVE, IF I COULD CLARIFY? 25 Q SURE. 153 1 A WE DO NOT HAVE JURISDICTION TO WORK ALL MONEY 2 LAUNDERING. THERE IS ALSO A MONEY LAUNDERING MOU. OUR 3 MONEY LAUNDERING VIOLATIONS HAVE TO BE DIRECTLY 4 RELATED -- THE PREDICATE OFFENSE THAT LEADS TO MONEY 5 LAUNDERING SUPPORTING OR PROMOTING HAS TO BE RELATED TO 6 ONE OF THE JURISDICTIONS THAT WE ENFORCE. BANKRUPTCY 7 IS NOT A CASE WE ENFORCE. SO, THE MONEY LAUNDERING IN 8 CONNECTION WITH THE BANKRUPTCY ARE ALSO THE FBI 9 PURVIEW. 5:36P 10 Q I GUESS MY BOTTOM LINE IS GIVEN ALL THESE 11 OTHER ADDITIONAL COMPLICATIONS IT'S NOT JUST A SIMPLE 12 SIX MONTHS FRAUD CASE, WOULDN'T YOU AGREE WITH THAT? 13 A NO, THAT'S WHY I ALLOWED ADDITIONAL TIME. 14 Q OKAY. YOU WERE ASKED ABOUT PHYSICAL CONTACT. 15 FIRST OF ALL, TO YOUR KNOWLEDGE, HAS MS. FITZGERALD 16 MADE ANY ALLEGATIONS THAT SHE SUFFERED PHYSICAL -- 17 UNWANTED PHYSICAL CONTACT? 18 A I DON'T RECALL. 19 Q NOW, WHEN YOU FIRST CAME TO THE RIVERSIDE/RAC 20 OFFICE, PERRY JOHNSON, YOU TESTIFIED TO THIS, 21 COMPLAINED ABOUT A MORALE PROBLEM, ISN'T THAT CORRECT? 22 A YES, SIR. 23 Q AND, IN FACT, WHAT HE COMPLAINED ABOUT A 24 MORALE PROBLEM WITH PEOPLE FILING EEO COMPLAINTS, ISN'T 25 THAT CORRECT? 154 5:37P 1 A NO, SIR. 2 Q I AM JUST ABOUT READY TO WRAP UP. WE SPOKE 3 BRIEFLY ABOUT AWARDS. YOU SAID IF MS. FITZGERALD WOULD 4 HAVE BEEN ABLE TO OBTAIN MORE INDICTMENTS, YOU WERE 5 SPECULATING ABOUT A POSSIBLE $1500 AWARD THAT YOU WOULD 6 HAVE PUT HER IN FOR, IS THAT CORRECT? 7 A YES, THE LARGEST THAT I HAD APPROVED IN 8 RIVERSIDE WAS THE 1250 THAT MS. MOLOIAN HAD RECEIVED. 9 Q WHAT'S THE LARGEST AWARD, I IMAGINE THERE MUST 10 BE A LIMIT AS A RAC YOU CAN RECOMMEND? 11 A I DON'T RECALL WHAT THE LIMIT WAS THEN. I 12 DON'T BELIEVE I WAS AWARE OF ANYONE EVER RECEIVING AN 13 AWARD AT THAT TIME OVER $1500. 14 Q IT WOULDN'T BE A STAGGERING SUM. IT'S NOT WHO 15 WANTS TO BE A MILLIONAIRE AFTER ALL, CORRECT? 16 A RIGHT. 17 Q SO, $1500 WOULD BE ABOUT THE TOP ANYWAY, IS 18 THAT CORRECT? 19 A AT THAT TIME. 20 Q AND WITHOUT THE ADDITIONAL INDICTMENTS ON A 21 CASE THAT YIELDED 8000 POUNDS OF MARIJUANA, 34 KILOS OF 22 PURE COCAINE, AND GETTING INTEREST FROM THE ACTING 23 COMMISSIONER HIMSELF, YOU WOULD NOT AWARD $1500, OR NOT 24 RECOMMEND $1500, IS THAT CORRECT? 5:39P 25 A AT THAT POINT, RIGHT AFTER THE SEIZURE, NO. 155 1 Q DURING THIS TIME PERIOD FOR THAT YEAR, WERE 2 YOU AWARE OF ANY OTHER SEIZURES IN YOUR OFFICE THAT 3 WERE THAT LARGE? 4 A IN RIVERSIDE, NO. 5 Q HOW ABOUT IN LA? 6 A I DID NOT TRACK THAT. 7 Q AND FINALLY, YOU WERE ASKED QUESTIONS ABOUT 8 HOW STATISTICS AFFECT YOUR PROMOTABILITY AND YOUR 9 OFFICE, ISN'T THAT CORRECT? 10 A YES, SIR. 11 Q WOULDN'T INTERDICTING 25 TO 40 TONS OF 12 CONTRABAND REALLY HELP YOUR STATISTICS? 13 A YES, SIR. 14 Q WOULDN'T IT REALLY HELP YOUR STATISTICS IF WE 15 ARE TALKING ABOUT 25 TO 40 TONS OF MARIJUANA? 5:40P 16 A HYPOTHETICALLY, YES. 17 Q 25 TO 40 TONS OF PURE COCAINE? 18 A YES, SIR. 19 Q AND YET, WHEN YOU HAD TWO AGENTS WHO ALL THEY 20 WANTED TO DO WAS GO TO THE COLTON YARD AND WATCH 21 SOMEONE PRESSURE TEST THOSE FIVE TANKER CARS FOR FREE, 22 YOU WOULDN'T ALLOW IT, CORRECT? 23 A YES, SIR. 24 MR. BEBI: NOTHING FURTHER. 25 THE COURT: ALL RIGHT. MR. STUTLER. 156 1 MR. STUTLER: YES, YOUR HONOR. TWO ISSUES. 2 REDIRECT EXAMINATION 3 BY MR. STUTLER 4 Q YOU HAD MENTIONED JUST NOW TO MR. BEBI, THAT 5 IMMEDIATELY AFTER TERMINATING THE CONTROLLED DELIVERY 6 YOU STARTED GETTING WORK DONE ON ISSUING ARREST 7 WARRANTS, IS THAT CORRECT? 8 A I WOULD HAVE TO REVIEW THE FILE, BUT I BELIEVE 9 WE HAD SEARCH WARRANTS, OBVIOUSLY, SEARCH WARRANTS 10 APPROVED PRIOR TO THE TAKE DOWN. WHETHER WE HAD 11 IDENTIFIED THEM SUFFICIENTLY TO SEEK ARREST WARRANTS, I 12 WOULD HAVE TO REVIEW. 5:41P 13 Q ALL RIGHT. WAS THERE SOME SENSE OF URGENCY IN 14 GETTING THOSE OUT? 15 A YES. YOUR SUSPECTS, OBVIOUSLY, CAN LEAVE THE 16 COUNTRY. THE EVIDENCE CAN BE DESTROYED OR REMOVED FROM 17 THE SEARCH WARRANT LOCATIONS. 18 Q AND AS THE CASE AGENT, WOULD MS. FITZGERALD BE 19 INVOLVED IN THAT PROCESS? 20 A SHE WAS INVOLVED. ANOTHER AGENT PREPARED AND 21 DRAFTED A MAJORITY OF THE AFFIDAVIT IN SUPPORT OF THE 22 SEARCH WARRANT. I DON'T RECALL WHO THE ACTUAL AFFIANT 23 ON THE FINAL -- 24 Q SO, YOU WOULD ACTUALLY WANT TO INSURE THAT SHE 25 KNOWS AS SOON AS POSSIBLE THAT THE CONTROLLED DELIVERY 157 1 IS GOING DOWN SO THAT SHE CAN GET STARTED ON THESE 2 WARRANTS, IS THAT CORRECT? 3 A STARTED ON THE WARRANTS COORDINATING THE 4 TAKEDOWN, CORRECT? 5 Q WOULD ROI'S, REPORTS OF INVESTIGATIONS, BE 6 DONE ON THIS SORT OF PROJECT? 7 A YES, SIR. 8 Q WHO WOULD DO THOSE? 9 A THE CASE AGENT OR ANOTHER AGENT IF ASSIGNED BY 10 THE SUPERVISOR FOR A SPECIFIC INTERVIEW OR SURVEILLANCE 11 OR SOMETHING THAT THEY HAD BEEN DESIGNATED TO DO. 5:42P 12 Q OKAY. SO, IN THIS CASE EITHER MS. FITZGERALD 13 OR SOMEBODY WORKING ON THE PROJECT, CORRECT? 14 A THAT'S CORRECT. 15 Q AND IN THIS CASE I AM TALKING ABOUT T&L 16 ENTERPRISES, IS THAT WHAT YOU UNDERSTAND? 17 A YES, SIR. 18 Q IF A HIGH LEVEL MEMBER OF THE ARIANO FELIX 19 CARTEL OR ANY OTHER CARTEL WOULD HAVE BEEN INVOLVED IN 20 THAT PROJECT, WOULD YOU EXPECT TO SEE THAT ON AN ROI? 21 A YES, SIR. A GENERAL RULE IS IF IT'S NOT 22 WRITTEN, IT DIDN'T HAPPEN, IT'S NOT KNOWN. 23 Q WOULD THAT STAND OUT TO YOU IF YOU EVER SAW AN 24 ROI WITH THAT ON IT? 25 A YES, SIR. 158 1 Q DID YOU EVER SEE AN ROI THAT INDICATED THAT? 2 A NO, SIR. 3 Q NOT FROM MS. FITZGERALD, SHE DIDN'T GIVE YOU 4 SOMETHING LIKE THAT? 5 A NO, SIR. 6 MR. STUTLER: THANK YOU. 7 THE COURT: ALL RIGHT. THANK YOU, MR. 8 PINKAVA. YOU'RE EXCUSED. 9 (WITNESS EXCUSED.) 10 THE COURT: LADIES AND GENTLEMEN, IT'S TEN 11 MINUTES TO 5:00. I THINK YOU HAVE BEEN VERY PATIENT 12 WITH US IN LISTENING TO ALL THE TESTIMONY TODAY. I AM 13 GOING TO SEND YOU HOME. I HAVE A COUPLE OF MATTERS I 14 NEED TO TALK TO THE LAWYERS ABOUT OUTSIDE OF YOUR 15 PRESENCE. IF YOU DON'T MIND COMING BACK ON MONDAY, I 16 HAVE A SENTENCING AT 9:00 O'CLOCK. I AM SORRY, I HAVE 17 A SENTENCING AT 9:00 O'CLOCK, WHICH MEANS THAT I WILL 18 PROBABLY NOT BE ABLE TO START ON MONDAY UNTIL 10:00 19 O'CLOCK. OKAY. THAT IS GOOD OR BAD. I DON'T KNOW. I 20 AM SEEING SOME MIXED REACTIONS OVER THERE. PLEASE PLAN 21 TO BE HERE ON MONDAY MORNING AT 10:00 A.M. 22 PLEASE REMEMBER NOT TO DISCUSS THE CASE AMONG 23 YOURSELVES OR WITH ANYONE ELSE, NOT EVEN YOUR SPOUSES. 24 DON'T WATCH, READ OR LISTEN TO ANY ACCOUNTS OF THIS 25 CASE, SHOULD THERE BE ANY. AND PLEASE, PLEASE, PLEASE 159 1 DO NOT DO ANY RESEARCH ON YOUR OWN. OKAY. 2 SEE YOU MONDAY MORNING. LEAVE YOUR NOTEBOOKS. 3 JUST LEAVE THEM UNDER YOUR CHAIR. NOBODY WILL MESS 4 WITH THEM. OKAY. THANK YOU. 5 (JURY EXITS COURTROOM.) 6 THE COURT: THE RECORD SHOULD REFLECT THAT THE 7 JURY IS OUT OF THE COURTROOM. I UNDERSTAND WE HAD SOME 8 ISSUES, JURY INSTRUCTION ISSUES THAT WE ARE GOING TO 9 TALK ABOUT. 10 MR. STUTLER: WE ARE HAPPY TO TALK ABOUT THEM 11 NOW IF YOU LIKE. 12 THE COURT: WHY DON'T WE GET STARTED. WE HAVE 13 TEN MINUTES. 14 MR. STENETT: YOUR HONOR, IT JUST OCCURRED TO 15 ME THAT MONDAY MORNING WASN'T THERE A WITNESS YOU WERE 16 GOING TO -- OUTSIDE THE PRESENCE OF THE JURY -- 17 MR. BEBI: THEY ALREADY TOLD ME THEY ARE 18 BRINGING DOWN -- 5:45P 19 MR. STUTLER: HE MAY BE TALKING ABOUT A 20 DIFFERENT ISSUE. I AM NOT SURE. 21 FOR THE RECORD, YOUR HONOR, WE ARE PRODUCING 22 MR. RIOS. HE IS OUTSIDE. IN OUR BELIEVE, HE IS IN OUR 23 JURISDICTION, BUT WE WILL VOLUNTARILY PRODUCE HIM. 24 THE COURT: I AM GLAD YOU ARE DOING THAT. 25 THANK YOU. ANYTHING ELSE WE OUGHT TO TALK ABOUT BEFORE 160 1 WE BREAK FOR THE EVENING? IF NOT, OKAY. SEE YOU 2 MONDAY MORNING. 3 MR. STENETT: THERE MIGHT BE. SINCE WE HAVE A 4 COUPLE MINUTES. I HAVE A WITNESS THAT'S FLYING IN 5 SUNDAY NIGHT FROM OUT OF STATE AND I MIGHT HAVE TO TAKE 6 HIM OUT OF ORDER, AT SOME POINT, DURING MONDAY, IF 7 THERE IS NO OBJECTION. THE ONE THING I WANTED TO RAISE 8 IS THAT HE IS MR. CONRAD. HE IS A RETIRED CUSTOMS 9 AGENT. AND THE REASON I AM BRINGING THIS UP, I WANTED 10 TO DISCUSS, JUST BRIEFLY, I HAVE SOME INFORMATION THAT 11 HE HAD A DRINKING PROBLEM AFTER HE RETIRED FROM THE 12 AGENCY. AND THAT HE RECOGNIZED IT AND HAS BEEN, I 13 GUESS, "ON THE WAGON," IF YOU WILL, FOR THE LAST 18 14 MONTHS. YOU KNOW, HE IS VERY UP FRONT ABOUT IT. THERE 15 IS NO PROBLEMS WITH THAT EXCEPT THAT I DON'T THINK IT'S 16 SOMETHING I ANTICIPATE ATTEMPTING TO CROSS EXAMINE HIM 17 ON, AND BASED ON THAT I THINK IT'S INFLAMMATORY AND NOT 18 RELATED TO THIS CASE. 5:46P 19 THE COURT: I AM NOT GOING TO PREJUDGE ANY 20 ISSUE. ARE YOU GOING TO MAKE AN ISSUE OF IT, MR. 21 STUTLER? 22 MR. STUTLER: MR. STENNETT IS UNDERSTANDING OF 23 OUR INTELLIGENCE AND IS VERY OPTIMISTIC. I WASN'T 24 AWARE OF THAT. 25 THE COURT: NOW YOU ARE AWARE OF IT. 161 1 MR. STUTLER: NO, I DON'T WANT TO GO INTO 2 THAT. HOWEVER, THE ONE ISSUE I HAVE ADDRESSED WITH HIM 3 IS WHETHER WE CAN GO INTO HIS OPINION OF UNDUE 4 PUNISHMENT. WE DON'T FEEL THAT SHOULD COME IN. 5 THE COURT: THIS IS THE GENTLEMAN WHO, 6 APPARENTLY, DISCUSSED WHAT HAPPENED AS FAR AS THE 7 PUNISHMENT WAS CONCERNED. HE HAD A JUDGMENT THAT IT 8 WAS TOO HARSH. DO I HAVE THIS RIGHT? 9 MR. STENETT: THAT'S THE GENTLEMAN, YOUR 10 HONOR, YES. 11 THE COURT: IF WE TAKE ANYBODY IN THIS ROOM 12 AND WE ASK EACH OTHER WHAT OUR JUDGMENT IS ON CERTAIN 13 THINGS, WE ARE ALL GOING TO DISAGREE. WHAT DOES THAT 14 HAVE TO DO WITH ANYTHING? MY ONLY CONCERN IS IF YOU 15 TELL ME THAT HE IS GOING TO COME IN AND TESTIFY THAT 16 IT'S OUTSIDE OF CUSTOMS DISCIPLINARY POLICY, THAT'S ONE 17 THING. IF YOU ARE GOING TO COME IN AND TELL ME THAT 18 IT'S WITHIN CUSTOMS DISCIPLINARY POLICY, BUT HE DOESN'T 19 AGREE WITH IT, MY ANSWER TO THAT IS WHO CARES AND HOW 20 IS THAT RELEVANT. 5:48P 21 MR. STENETT: I UNDERSTAND, YOUR HONOR. 22 THE COURT: OKAY. GREAT. ANYTHING ELSE? SEE 23 YOU ON MONDAY. 24 MR. BEBI: HAVE A GOOD WEEKEND, YOUR HONOR. 25 THE COURT: YOU TOO. 162 1 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 2 3 4 I, MELISSA A. PIERSON, OFFICIAL COURT REPORTER 5 FOR THE UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT 6 OF CALIFORNIA, DO HEREBY CERTIFY THAT I REPORTED IN 7 SHORTHAND AS SUCH OFFICIAL COURT REPORTER THE FOREGOING 8 PROCEEDINGS HAD BEFORE THE HONORABLE ROGER T. BENITEZ, 9 JUDGE OF SAID COURT IN THE ABOVE-ENTITLED CAUSE ON THE 10 3RD DAY OF MARCH 2005, AND THEREAFTER CAUSE TO BE 11 TRANSCRIBED INTO TYPEWRITING THE FOREGOING TRANSCRIPT 12 WHICH I HEREBY CERTIFY IS A TRUE AND CORRECT 13 TRANSCRIPTION OF MY SHORTHAND NOTES SO TAKEN OF THE 14 EVIDENCE OFFERED AND RECEIVED ON SAID DATE BEFORE SAID 15 JUDGE. 16 17 18 19 20 ________________________________ 21 MELISSA A. PIERSON, CSR, RPR CALIFORNIA LICENSE NO. 12499 22 ILLINOIS LICENSE NO. 084-003138 23 24 DATED THIS 4TH DAY OF APRIL 2006. 25 163 More Details CC Status Normal Reply-to Melissa Pierson Attachments default.htm 03MA05A1.ASC Attachments Display Alternative Part Advanced Inbox Draft Sent Trash Show Headers Variable width font Inline Images Enable HTML Scripts, Forms, Applets Show 'alternative' parts Raw