Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 1 of 11 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION * * * * * UNITED STATES OF AMERICA VS. MANUEL EDUARDO PENA * * * * * CRIMINAL NO. B-12-472-1 Brownsville, Texas 9:09 a.m. - 9:16 a.m. July 20, 2012 * * * * * MOTION HEARING BEFORE THE HONORABLE FELIX RECIO UNITED STATES MAGISTRATE JUDGE * * * * * THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General Order 94-15, United States District Court, Southern District of Texas Proceedings recorded by electronic sound recording Transcript produced by transcription service GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 2 of 11 2 1 APPEARANCES: 2 For the United States: 3 4 MR. OSCAR PONCE United States Attorney's Office 600 E. Harrison Street, #201 Brownsville, Texas 78520 5 For Defendant Pena: 6 7 8 9 10 11 12 13 14 MR. ERNESTO GAMEZ, JR. Attorney at Law 777 E. Harrison Street Brownsville, Texas 78520 U.S. Marshal Service: JOSEPH CASTRO Court Clerk: SALLY GARCIA Court Interpreter: SANDRA CORTEZ (Present but not needed) 15 Electronic Recorder: 16 SARAH BEJARANO 17 18 19 20 21 22 23 24 25 GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 3 of 11 3 1 P R O C E E D I N G S 2 9:09 A.M. - JULY 20, 2012 3 THE COURT: B-12-472, Manuel Eduardo Pena. 4 MR. PONCE: Oscar Ponce for the Government. 5 MR. GAMEZ: Good morning, Judge. 6 7 Ernesto Gamez, Jr. for Manuel Pena. THE COURT: All right. We have a Motion for 8 Discovery. Mr. Gamez, where do you stand on this 9 discovery? Has it been completed? 10 MR. GAMEZ: Judge, Docket No. 22 is unopposed. 11 Docket No. 23 is unopposed. 12 unopposed. 13 motion is unopposed. 14 Docket 28 motion is unopposed. 15 unopposed. 16 Docket No. 24 motion is Docket 25 motion is unopposed. Docket 26 Docket 27 motion is opposed. 29 unopposed. 30 motion So the only thing we have opposed, Judge, 17 is No. 7 (sic), and that is I'd like to have access to 18 some of the Government's witnesses. 19 THE COURT: With respect to your discovery, I 20 guess it's Documents 22 and 23 and 24, have all those -- 21 everything's been disclosed to you at this point? 22 23 MR. GAMEZ: The file has been open. To the best of my knowledge and belief -- 24 THE COURT: All right. 25 MR. GAMEZ: -- it has been, Judge. GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 But if they Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 4 of 11 4 1 do have any favorable evidence that they have not -- the 2 Government has not given to me, I'd certainly like to 3 know what it is because it is unopposed. 4 witnesses that are favorable -- 5 6 THE COURT: If they have All right, I got you. Your motions are granted -- 7 MR. PONCE: Your Honor, I don't mean to 8 interrupt. Mr. Gamez has been -- of course, we're 9 discussing motions and essentially they are unopposed, 10 but I would like to point out that it's unopposed in 11 the sense that we do not oppose the discovery, but in 12 point -- but as an example, in Motion 22 -- in Document 13 No. 22 for Discovery and Inspection of Evidence 14 Favorable and the Investigative Reports, we have 15 provided him access to that. 16 He goes beyond in his motion in asking 17 for a conference to be given to him ahead of time and 18 whatnot. 19 we have given him access to the reports and whatever is 20 in the file. 21 the way he worded his motion. 22 Well, we object to that portion of it. But That's the only portion, in that aspect, The same would apply to Document No. 26, 23 the Jencks statements, where he asked for copies of all 24 these reports, you know, ahead of time. 25 allowed him complete review at his leisure, as many GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 And we've Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 5 of 11 5 1 times as he wants to review them and whatnot. 2 obviously -- 3 4 THE COURT: But Why don't you give him copies? What's the big deal? 5 MR. PONCE: Well, Your Honor, this case, 6 although it involves just a straw purchase on the 7 surface, it really involves some other matters. 8 defendant used to work for at -- for -- I guess it's 9 still -- employment is under suspension -- at the This 10 bridge. 11 involve situations there of who crosses, when people 12 cross, and other individuals. 13 written and reflected. 14 And there were, you know, other matters that THE COURT: And that's part of what's The motions for discovery are 15 granted. 16 Government has in force, at this time the Court's not 17 going to get itself involved in that. 18 difficulties with their not letting you see reports that 19 you can specifically identify, let the Court know and 20 we'll issue another order on it. 21 order them to give you copies. 22 With regard to the copies, whatever policy the But I'm not going to Motion for the -- which one was it, No. 27, 23 Motion for Access to Witness? 24 be more specific? 25 If you have some MR. GAMEZ: Which witnesses? Can you Whatever witnesses they have, GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 6 of 11 6 1 Judge. 2 them. I'd like to have a list of them so I can talk to 3 THE COURT: A list of witnesses? 4 MR. GAMEZ: I know of one witness, Judge, that 5 was mentioned in your Preliminary Hearing. 6 know of other witnesses that they may have, that I may 7 speak to them to properly defend my client. 8 9 MR. PONCE: I'd like to To let him know about which witnesses are there as part of the file, we have no 10 objection to that at all, but his motion here says he 11 wants the Government to provide access to those 12 witnesses. 13 fact, one of them is his friend. 14 care of that. 15 access to them when we don't control a witness -- 16 17 18 19 We have no control over those witnesses. In He can certainly take But requiring the Government to provide THE COURT: What do you mean by access, Mr. Gamez? MR. GAMEZ: Well, Judge, so many times they'll say "Don't speak to opposing counsel." 20 THE COURT: What's wrong with that? 21 MR. GAMEZ: "Don't speak to" -- 22 THE COURT: They can do that. 23 MR. GAMEZ: Well, it would be like me saying to 24 25 a witness, "Don't talk to the Government." THE COURT: They can do that, Mr. Gamez. GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 7 of 11 7 1 MR. GAMEZ: Well, then you're obstructing 3 MR. PONCE: No, Your Honor, what we tell them -- 4 THE COURT: I don't think so. 5 MR. GAMEZ: That knife cuts both ways. 6 MR. PONCE: -- is they are free to talk to -- 2 justice. 7 they are free to talk to the opposing side or free not 8 to talk to them, it's their choice. 9 THE COURT: All right. 10 MR. PONCE: That's what we tell them all the THE COURT: Your motion to have a list of 11 12 time. 13 witnesses will be granted. 14 them or not, it depends on the witness itself. 15 your own on that one. 16 MR. PONCE: Whether there is access to You're on Your Honor, that's Document No. 28 17 where he asks us to list the Government witnesses. 18 Document No. 27 is where he asks for access to. 19 that's the -- 20 THE COURT: Okay, I see the difference. So Your 21 Document No. 27 Motion to Produce Pretrial Access to 22 Witnesses is denied. 23 of witnesses, that, of course, is granted. 24 material, that motion is granted. 25 Disclosure of Statements and Confessions of the Your unopposed motion for a list The Giglio The Motion for GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 8 of 11 8 1 Defendant and/or Statements of and/or Confessions of the 2 Defendant -- 3 4 MR. PONCE: We're in agreement with that, Your THE COURT: -- that motion is granted, as well. Honor. 5 6 Now, on Motion for Reciprocal Discovery, 7 Mr. Ponce, I've discussed this previously. I think a 8 Motion for Reciprocal Discovery is too broad a 9 statement. The defendants are required to spell out 10 with some particularity what they're looking for. 11 Motion for Reciprocal Discovery is just -- in my 12 estimation, it's unfair. 13 give you time to file something more particularized. 14 15 MR. PONCE: THE COURT: MR. PONCE: All right. How many days for trial Your Honor, I don't anticipate more than a day and a half, to be on the safe side. 20 21 Your Honor, I discussed this with in this matter? 18 19 I'm going to deny that and defense counsel already. 16 17 A THE COURT: How many witnesses do you anticipate? 22 MR. PONCE: We anticipate about six witnesses. 23 I know that one of the motions is a Motion to Disclose 24 Experts, so we might have one expert, and we disclosed 25 him. GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 9 of 11 9 1 THE COURT: And Mr. Gamez, do you anticipate -- 2 MR. GAMEZ: If they have -- 3 THE COURT: -- having any witnesses? 4 MR. GAMEZ: Yes, Judge. 5 expert, 6 unopposed. 7 If they have an I do not have the report and that was I would like that. THE COURT: They'll need to provide that to you 8 within the limitations of the rule, so that part of your 9 discovery motion is granted as well. 10 MR. GAMEZ: Yes, Judge. 11 THE COURT: I think that's involved in it. 12 13 So how many witnesses do you think you might -- 14 15 We should have four witnesses, THE COURT: Do you have any experts that you're Judge. 16 17 MR. GAMEZ: going to present? 18 MR. GAMEZ: We do not at this time. 19 THE COURT: All right, thank you very much. 20 MR. GAMEZ: Judge, I'd like to inform the Court 21 that I have explained the Sentencing Guidelines to my 22 client. 23 from what I understand -- from what I understand, he 24 would like to inform the Court that he wishes to go to 25 trial. He fully understands them and he has chosen, GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 10 of 11 10 1 DEFENDANT PENA: Yes, sir. 2 THE COURT: All right. 3 MR. GAMEZ: Is that correct? 4 DEFENDANT PENA: 5 MR. PONCE: Yes. Your Honor, since he's putting 6 this on the record, may I also put on the record that we 7 have tendered a proposed Plea Agreement, Plea Bargain 8 Agreement that Mr. Gamez has represented to me that he 9 has already discussed fully with his client, and that 10 his client has rejected that agreement. 11 MR. GAMEZ: That would be correct -- 12 DEFENDANT PENA: 13 MR. GAMEZ: Yes. -- Manuel Pena, that I've explained 14 the Plea Agreement by the United States Government and 15 you have chosen and ordered me to go to trial in this? 16 DEFENDANT PENA: Yes, sir. 17 MR. GAMEZ: Thank you, Judge. 18 THE COURT: All right, thank you. 19 [9:16 a.m. - Proceedings adjourned] 20 21 22 23 24 25 GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 98 Filed in TXSD on 01/21/13 Page 11 of 11 1 C E R T I F I C A T I O N 2 3 I certify that the foregoing is a correct 4 transcript of the electronic sound recording of the 5 proceedings in the above-entitled matter. 6 7 8 /s/ Gwen Reed 9 1-21-13 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 101 Filed in TXSD on 01/22/13 Page 1 of 5 1 2 3 4 5 6 1 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 FINAL PRETRIAL CONFERENCE BEFORE THE HONORABLE HILDA G. TAGLE JULY 31, 2012 8 9 VOLUME 1 10 11 APPEARANCES: 12 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 13 14 15 16 17 Brownsville, Texas 78520 18 19 20 21 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 22 District Order of 94-15, United States District Court, Southern Texas. 23 Transcribed by: 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 101 Filed in TXSD on 01/22/13 Page 2 of 5 1 THE COURT: 2 announced ready for trial. 3 America versus Manuel Eduardo Pena. 4 All right. 2 Let me call the next cases 12-CR-472, the United States of What says the government? 5 MR. PONCE: Oscar Ponce for the government. 6 THE COURT: What says the defendant? 7 MR. GAMEZ: Good afternoon, Judge. 8 Ernesto Gamez, Jr. for Manuel Pena. 9 All we have is a 404(b) motion, Judge. Ready. We're present and -- We're present and ready. And there's a motion for 10 leave filed, unopposed on the motion for leave. 11 government has agreed that no 404(b) evidence would be presented 12 in oral argument -- excuse me, opening statements or before 13 approaching the bench. 14 THE COURT: All right. I believe the The motion for leave is granted. 15 The motion for -- or I guess the motion for the defendant is not 16 opposed, and the government agrees that it will not broach the 17 subject of any other acts until the Court hears argument on it 18 outside the presence of the jury. 19 MR. PONCE: 20 Honor. 21 argument. Yes, we're in agreement with that, Your We had no intent of bringing it up at jury -- jury 22 THE COURT: All right. Then the motion is granted. 23 MR. GAMEZ: If at all possible, if we could have this 24 trial -- it shouldn't take three days, four days max -- sometime 25 in the middle of the month. We still got some new government Case 1:12-cr-00472 Document 101 Filed in TXSD on 01/22/13 Page 3 of 5 3 1 evidence that I was just presented on Friday, and we would like 2 to meet with the probation officer as well, Judge. 3 the middle of the week respectfully. 4 THE COURT: Well, I tell you what. Sometime in We -- in fact, we're 5 thinking that the -- August the 13th would be the date when we 6 would have jury selection, and we could start the evidence 7 immediately thereafter. 8 whole week available, then I could plug in Mr. Robles' case at 9 the -- let's say on a Thursday. And then I could -- since I have that That would be August the 16th. 10 And that way, depending on how things develop, we can have the 11 jury panel come in for a selection if nothing happens as far as 12 the government is concerned, and that way we can accommodate 13 your trial, Mr. Ponce. 14 for Mr. Robles' case in the afternoon rather than in the morning 15 to allow more time for your case to wrap-up if need be, 16 Mr. Ponce. And we might even make jury selection 17 MR. GAMEZ: Are we looking at August 13th? 18 THE COURT: Yes. 19 MR. GAMEZ: 9:00 a.m.? 20 THE COURT: Okay. I stand corrected as far as the 21 schedule. That would be jury selection on August the 14th in, 22 Mr. Ponce, your case. 23 scheduled for Thursday, August the 16th in your case, 24 Mr. Robles. 25 possible what, if any, progress has been made. And then we can have jury selection And if you would advise the Court as soon as We may -- if Case 1:12-cr-00472 Document 101 Filed in TXSD on 01/22/13 Page 4 of 5 4 1 it's a one-day trial, in actuality, Ms. Warsaw, in Mr. Robles' 2 case, I might reassess the situation and have the panel in your 3 case, Ms. Warsaw, come in on Friday morning, early Friday 4 morning so we can wrap things up. 5 MR. ROBLES: 6 THE COURT: 7 MR. ROBLES: 8 THE COURT: All right. 9 MR. PONCE: Your Honor, if we have any announcements 10 August 16th? Yes. Yes, Judge. Thank you. before then, we can contact the Court before the 14th? 11 THE COURT: Yes. 12 MR. GAMEZ: Okay. 14 THE COURT: Yes, thank you. 15 MR. ROBLES: 16 THE COURT: Yes. 17 MR. PONCE: May I be excused, Your Honor? 18 THE COURT: Yes. 13 19 That would conclude my business, Judge. All right. And you're excused. May I be excused? And so, Mr. Gamez, if your -- I've been informed 20 that your client has tested negative, and he'll be allowed to 21 continue on bond. 22 MR. GAMEZ: Yes, Judge. 23 THE COURT: Thank you. 24 25 Thank you. * * * (End of requested transcript) 5 Case 1:12-cr-00472 Document 101 Filed in TXSD on 01/22/13 Page 5 of 5 1 2 3 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 4 5 Date: January 16, 2013 6 7 /s/________________________ Signature of Court Reporter Barbara Barnard 8 9 10 I N D E X 11 FINAL PRETRIAL 12 JULY 31, 2012 13 Trial announcements 2 14 Motions 2 15 Setting trial schedule 3 16 17 18 19 20 21 22 23 24 25 PAGE Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 1 of 41 1 2 3 4 5 6 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 JURY SELECTION AND FIRST DAY OF TRIAL BEFORE THE HONORABLE HILDA G. TAGLE AUGUST 14, 2012 8 9 10 VOLUME 2 11 APPEARANCES: 12 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 13 14 15 16 17 Brownsville, Texas 78520 18 19 20 21 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 22 District Order of 94-15, United States District Court, Southern Texas. 23 Transcribed by: 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 2 of 41 1 2 3 4 5 6 7 8 THE COURT: Good morning. Please be seated. Let me call for announcement Cause No. 12-CR-472-1, the United States of America versus Manuel Eduardo Pena. What says the government? MR. PONCE: government. Oscar Ponce and Karen Betancourt for the We're ready. THE COURT: All right. First of all, who's going to be lead counsel for the government? 9 MR. PONCE: I am, Your Honor. 10 THE COURT: All right. 11 MR. GAMEZ: Good morning, Your Honor. 12 13 7 What says the defendant? Ernesto Gamez for the defendant. THE COURT: All right. Then I'm going to -- I've been 14 given an updated or supplemented or supplemental witness or 15 maybe his exhibit list, is what I looked at most recently. 16 before we go into all that, I'm going to ask about jury 17 selection, whether there is anything that I need to take up 18 housekeeping-wise before the panel is brought in for voir fire. 19 From the government? 20 MR. PONCE: Yes, Your Honor, we had several items. But One 21 is -- well, we have the exhibits. These are the original -- 22 well, what we would call the original exhibits to eventually be 23 provided to the jury. 24 provided a courtesy copy to defense counsel also. 25 tender those at this point if I may. We made a courtesy copy for the Court and I want to Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 3 of 41 1 2 THE COURT: You mean the courtesy copies, or are you making an offer of the exhibits? 3 4 All right. 8 MR. PONCE: Well, an offer of the exhibits at this point, Your Honor, also. 5 THE COURT: All right. Well, if there's going to be an 6 objection to any exhibit, I will hear argument on it later. 7 if you've determined that the exhibits are being offered without 8 objection, I'll hear your offer now. 9 now. 10 11 MR. PONCE: I'll consider your offer Well, that's my understanding, Your Honor, and we offer to admit 1 through 28. 12 THE COURT: What says the defendant? 13 MR. GAMEZ: Your Honor, we would object to -- 14 THE COURT: Okay. 15 16 17 18 But If there's an objection, I'm not going to take it up before jury selection. Then any other housekeeping matters before jury selection? MR. PONCE: Yes, Your Honor. These are just the courtesy copies for the Court. 19 THE COURT: Okay. 20 MR. PONCE: The -- we did -- I just want to put on the 21 record, we did tender a plea offer to the defendant. I believe 22 there was something put on the record earlier, but I'm not 23 absolutely positive, but I want to at least put something on the 24 record now that this was a -- an offer of -- written offer, plea 25 agreement that would have called for a 5K if there had been Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 4 of 41 9 1 cooperation by the defendant. 2 that would have, in all probability, placed him in the probation 3 range. 4 He's rejected that. And, in fact, that might have -- And we have, in fact, informed counsel 5 that he might well fall in a range where he will be, under the 6 guidelines, doing some -- if he's found guilty, doing some time, 7 prison time in the Bureau of Prisons if, in fact, he is 8 convicted and he does not get credit for acceptance and there's 9 no other consideration. 10 THE COURT: All right. So, Mr. Gamez, do you want to 11 make a record of the fact that you've discussed this offer with 12 your client and that he has indicated to you that -- or to have 13 him testify that he, having discussed that offer with you, that 14 he has declined it? 15 16 MR. GAMEZ: Respectfully, yes, Judge. My client, Mr. Pena -- did you hear the prosecutor? 17 THE DEFENDANT: 18 THE COURT: Yes, sir. All right. 19 to be standing. 20 asking him the questions. Excuse me. First of all, he has He has to be under oath, and you have to be 21 Sir, please raise your right hand so that you may be sworn. 22 (Defendant sworn.) 23 THE COURT: All right. And if you'll do so, elicit the 24 testimony here in front of us rather than at counsel table, 25 Mr. Gamez. Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 5 of 41 1 MR. GAMEZ: 2 THE DEFENDANT: 3 MR. GAMEZ: 4 Mr. Pena, did you hear the prosecutor -- the United States prosecutor's office? THE DEFENDANT: 6 MR. GAMEZ: Yes, I did. And have I explained to you the entirety of the government's offers multiple times? 8 THE DEFENDANT: 9 MR. GAMEZ: 10 Yes, sir. -- regarding the offers presented to you by 5 7 10 Yes, you have. And I explained to you the possibility that the government as well recommended probation? 11 THE DEFENDANT: 12 MR. GAMEZ: Yes. And you have reviewed all the evidence with 13 me multiple times, and you understood the federal sentencing 14 guidelines, and you have specifically and multiple times made it 15 clear to me that you wish to go to trial and decline the offer 16 made by the United States Government? 17 THE DEFENDANT: 18 MR. GAMEZ: Yes, I did. And you understand, sir, that there is a 19 likelihood that if you are found guilty, that you may be looking 20 at jail time most likely? 21 THE DEFENDANT: 22 MR. GAMEZ: I have nothing further, Judge. 23 THE COURT: All right. 24 25 Yes. Yes, I do. Thank you. Thank you. Anything else from the government? MR. PONCE: The other matter we have is just the 404. Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 6 of 41 1 But I could ask the Court to allow me to have Ms. Betancourt 2 address the Court. 3 THE COURT: 4 MS. BETANCOURT: All right. 11 Ms. Betancourt? Your Honor, there has been a ruling and 5 an agreement by the government not to get into 404(b) matters. 6 Mr. Gamez had filed that motion. 7 the day we were here for final pretrial, and the government 8 agrees that they will not be going into any extraneous matters. 9 However, in the presentation of testimony, what the government We'd had a short hearing on it 10 expects will come up is that the witnesses will testify that 11 when they were informed of the straw purchase, there was already 12 an ICE OPR investigation open. 13 intention -- 14 15 16 THE COURT: It's the government's Why don't you -- instead of using the acronym -MS. BETANCOURT: The defendant is a Customs and Border 17 Protection officer. 18 Office of Professional Responsibility is the agency tasked with 19 investigating its own. 20 come up as someone who was involved in some official corruption, 21 and there was already an ICE -- the Immigration Office of 22 Professional Responsibility investigation open. 23 The Immigration and Customs Enforcement And so Mr. Pena's name had previously And so what the witness would testify to would be simply 24 when I was contacted by an agent, a federal agent who had 25 witnessed the purchase in Academy on December the 5th and then Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 7 of 41 1 witnessed this defendant walk out the store on December 2 the 5th and hand the gun to another person, when that agent 3 called ICE, the Office of Professional Responsibility said: 4 already have an open case on that matter. 5 investigate. 6 12 We're going to And that would just be -- the simple testimony would be: 7 had an open investigation, and we investigated the straw 8 purchase. 9 OPR took over the investigation, because there was already an 10 We That's why they then -- that's why the FBI and ICE open investigation. 11 THE COURT: Okay. 12 MR. GAMEZ: Yes, Judge. 13 THE COURT: You have to do so at the lecturn, please. 14 MR. GAMEZ: Yes, Judge. Response? Under 403, this evidence, if 15 introduced, its probative value having nothing to do with the 16 case before Your Honor and this jury, would be unfair, and it 17 would be substantially unfair. 18 outweighed by the unfairness, Judge, of that evidence that has 19 nothing to do with this case. 20 We THE COURT: So its probative value would be What would be the relevance of bringing 21 in -- having the witness testify to that specifically? Can the 22 government present the evidence as to what he -- the 23 investigator did and -- in furtherance of the investigation of 24 this indictment without making reference to the ongoing 25 investigation by the Office of Professional Responsibility? Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 8 of 41 1 Or the other question I had was what was the nature of the 2 allegations? 3 be -- have merit or not have merit that was an ongoing 4 investigation by the Office of Professional Responsibility? 5 13 Or, you know, what was ultimately determined to MS. BETANCOURT: The Office of Professional 6 Responsibility had information prior to December of 2011. 7 fact, a couple years prior to that, that this defendant was 8 involved in smuggling undocumented aliens through his line at 9 the bridge. He's an inspector. In This defendant is an inspector 10 who would work a line at the bridge. 11 he was failing to register people into a system of -- the query 12 system, and that -- or that he was only querying one person and 13 not the others in the vehicle. 14 investigated as a possible official corruption because of his 15 ties to a known smuggler of undocumented aliens. 16 being surveilled and watched for his connection to an individual 17 they believe was paying him to smuggle these UDAs. 18 They had evidence showing And those images were being And so he was ICE Professional Responsibility had that investigation open. 19 FBI got a referral because that involves official corruption. 20 And because it involves official corruption, on October 21 the 13th of 2011, the FBI officially asked OPR to join with them 22 in a joint investigation. 23 At that point in time, those two agencies were working 24 together to surveil this defendant, to surveil his known 25 associates and, in fact, caught him with an undocumented alien Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 9 of 41 14 1 on November 8th of 2011. 2 the government agrees that we will not be getting into that 3 404(b) conduct unless the door becomes open at some point, but 4 not getting into that 404(b) conduct. 5 He was not prosecuted for that, and But what makes it difficult to present at trial is that on 6 December 5th, completely in a touch of irony and the most 7 circumstances of being in the wrong place at the wrong time, a 8 BEST agent, an HSI Homeland Security investigation -- they call 9 them BEST agents. They're bureau investigators that investigate 10 crimes involving firearms transactions. They were in the 11 Academy doing surveillance on a completely unrelated matter. 12 That particular agent, who works for Homeland Security 13 Investigations, knew this defendant because they had worked 14 together when they had both worked at the bridge as Customs 15 officers. 16 defendant, who's buying a firearm, because he's there working 17 surveillance himself. But, of course, he doesn't call attention to the 18 When he walks out the door of the Academy, again, doing his 19 own thing, and looks up and sees the defendant place the gun in 20 another vehicle, he gets suspicious because he doesn't see the 21 defendant get in the vehicle. 22 exchange of something and another third party leave with the 23 vehicle. 24 25 THE COURT: Okay. What he sees instead is an That's all to say -- you haven't answered my question as to why it's necessary to prove the facts Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 10 of 41 15 1 of this case that there was an ongoing investigation. 2 MS. BETANCOURT: And I'm taking too long. The next 3 thing they do is call their supervisor. Again, in a touch of 4 irony, sitting in their supervisor's office is a gentleman from 5 the Office of Professional Responsibility, a gentleman by the 6 name of Tommy Morrisey, who when the supervisor answers the 7 phone and says: 8 think I saw Manny Pena do a straw purchase. 9 says: I really just saw something suspicious. We have an open investigation on him. Tommy Morrisey We're going to 10 need to look into that matter. 11 Responsibility and FBI get involved and BEST falls away. 12 THE COURT: I And that's when ICE Professional Now, I'm not going to allow you to go into 13 it in your case in chief unless the door is opened by 14 cross-examination. 15 of any evidence that the defendant puts on in its -- in his case 16 in chief, then I'll consider the request at that time. 17 18 19 20 21 22 23 24 25 All right. And, you know, if it's open and as a result So anything else housekeeping-wise, Mr. Ponce? MR. PONCE: I believe those were the only three matters, Your Honor. THE COURT: All right. Mr. Gamez, for the defendant, any other housekeeping matters? MR. GAMEZ: the Court. Yes, Judge. We have some exhibits before I believe they have no objection on -- THE COURT: Well, you've objected to an offer. I'm not going to deal with any exhibits until I know that there's Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 11 of 41 16 1 been -- because ultimately what I want is an offer of all 2 unobjected to exhibits. 3 you have to discuss with the government which exhibits you have 4 objection to so that the government can make an offer of all 5 unobjected to exhibits. 6 ready to do so, I'm ready to proceed with jury selection. 7 If you're going to object to any, then So until that time -- until y'all are And also what is going to be the evidence regarding the 8 ownership, if it was ever -- if it was ever determined, as to 9 the ownership of the vehicle depicted in Government's Exhibit 4? 10 11 12 MR. PONCE: I'm not sure I understand the Court's question. THE COURT: Okay. Although the exhibit is not in 13 evidence, I had a question whether the government ever 14 established the ownership of the vehicle depicted in 15 Government's Exhibit 4. 16 17 18 19 MR. PONCE: Yes. There will be testimony regarding who that vehicle is associated with on his own. THE COURT: All right. And is the evidence going to be that it is owned by the defendant? 20 MR. PONCE: No, Your Honor. 21 THE COURT: All right. So, Mr. Gamez, have you 22 provided -- I mean, I'm assuming that you have discussed with 23 your client all of this evidence that the government has in 24 connection with your discussions with him of the offer of the 25 government? Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 12 of 41 17 1 MR. GAMEZ: Yes, Your Honor, we have. And it is not the 2 defendant's truck. 3 THE COURT: I'm sorry? 4 MR. GAMEZ: It is not the defendant's truck. 5 THE COURT: No. I'm also asking about the 6 representations made by the government as to his being observed 7 giving that gun to a third party. 8 with your client? Did you discuss this evidence 9 MR. GAMEZ: Yes, Judge. 10 THE COURT: So, Mr. Pena, would you confirm that you 11 We've been -- recall having your attorney discuss this evidence with you? 12 THE DEFENDANT: 13 THE COURT: Yes, he did. All right. He did, Judge. Thank you. 14 Please bring in the jury panel. 15 (Recess taken from 9:26 to 9:29.) 16 Jury panel present in the courtroom.) 17 18 THE COURT: Good morning. Please be seated. I see at least one familiar face. I haven't had a chance to 19 look at the entire panel, but Mr. Ruben Pena, you may know him, 20 in that he is or was the brother-in-law of my esteemed 21 colleague, Judge Filemon Vela, who is one of the gentlemen whose 22 name graces the courthouse as you walked in. 23 it's named after -- the courthouse is named after Judges 24 Reynaldo Garza and Filemon Vela. 25 be a bathroom named after me maybe when I retire. I'm sure you saw And I think there's going to I don't know. Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 13 of 41 18 1 But in any event, welcome to your beautiful United States 2 District Courthouse. 3 of this courthouse was basically spearheaded by Judge Vela. 4 came on board actually in May of -- or April of 1998, and we 5 moved into the courthouse in July. 6 building. 7 again, I can't take any credit for it. 8 did the yeoman's work in getting this done. 9 That I can't take credit for. The design I But -- so it's a beautiful I love it every day when I come in to work; but It was Judge Vela who In any event, my name is Hilda Tagle. I'm the judge who 10 will be presiding over the trial that we are selecting a jury 11 for. 12 before, it might seem a little burdensome and time consuming and 13 why are we doing this, but let me explain to you. 14 If you have not gone through the process of jury selection You've been given an oath that you will give truthful 15 answers about your qualifications to serve on a jury. 16 is every bit as sacred as the oath that I take as a judge to 17 uphold and defend the Constitution and laws of the United 18 States. 19 testifies in a trial, be it criminal or civil or any kind of 20 proceeding where a person takes an oath, you expect a witness to 21 be truthful in their testimony. 22 are not truthful, it's possible that they ultimately could be 23 prosecuted for not -- for making untruthful statements in an 24 official proceeding. 25 That oath It's every bit as sacred as the oath that a witness who Of course, you know, if they But in any event, I mention that so that you can understand Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 14 of 41 19 1 that the oath that you've taken to give truthful answers about 2 your qualifications to serve as a juror are every -- I mean, 3 that oath is every bit as important and sacred as the oath that 4 a witness and anyone involved in an official position take to 5 uphold the laws of the entity of this country and of this state. 6 So that means that during this jury voir dire process, what 7 I'm trying to determine is whether there is any opinion, 8 experience or belief that you have that could make it difficult 9 for you to render a verdict in this case. Because if you were 10 to be selected on the jury, the next oath that you would take is 11 a promise that you will render a verdict based upon the law and 12 the evidence. 13 If there were to be an opinion, experience or belief that 14 you have that would be a factor in the decision that you'd be 15 making as a juror in this case, that would be a violation of 16 your oath that you will give -- you will render a verdict based 17 upon the law and the evidence. 18 If there were to be a case filed in my court in which I had 19 a personal interest for whatever reason -- I'm going to use a 20 relative as an example, which, in fact, did happen a long time 21 ago when I first got here, a cousin. 22 recused myself. 23 case and I handed it over to Judge Vela. 24 25 It was a civil case. I That meant that I withdrew myself from that Because even though, you know, I didn't have to tell anyone that the -- I'm not sure whether she was a plaintiff or a Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 15 of 41 20 1 defendant in that case, but, you know, it could have just stayed 2 between us girls, you know, and not have said anything to 3 anyone. 4 that would have been a violation of the oath that I -- I'm 5 supposed to render decisions based upon the law and the 6 evidence, not a family relationship. 7 I did. 8 they don't have to give an explanation. 9 But that's not right. That would be a violation -- So, you know, that's what And you -- really a judge, when they recuse themselves, But because you're a large group of people -- we're 10 selecting a jury of 12 with two alternates -- you know, there's 11 any number of experiences that you've had and opinions that you 12 hold, and it's going to be my job, and with the assistance of 13 the attorneys, to determine whether there is anything that 14 you -- any experience that you've had that might influence you 15 in the decision you'd be asked to make in this case. 16 So, you know, we're not -- we're not trying to pry into your 17 lives, your private lives or your private affairs. 18 trying to determine if there is something in your background 19 that would make it difficult for you to render a verdict in this 20 case. 21 because of that opinion, experience or belief, there might be a 22 question as to whether you could be impartial. 23 We're just You might be perfect for a different kind of case. But And, you know, there are no right answers and no wrong 24 answers. What is wrong is for you to not speak up and not to 25 disclose something that could be a factor in the decision that Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 16 of 41 21 1 2 you'd be asked to make. Failing to disclose something is the same thing as making a 3 false representation. So if at any point in time at the 4 conclusion of my questioning there is an area or a subject that 5 I have not covered that you believe it's necessary for the Court 6 and the parties to know about, it is your obligation to let us 7 know what that experience or opinion or whatever it is you want 8 to disclose that the Court should be aware of to decide -- so 9 that I can decide whether it would be better for you to serve on 10 a different jury rather than this one. 11 take up your time. 12 possible consistent with justice. 13 So we're not trying to We're trying to do this as efficiently as Let me introduce to you the -- well, let me tell you what 14 this case is styled. 15 this case is United States of America versus Manuel Eduardo 16 Pena. 17 This is a criminal case. The style of Let me introduce to you the attorneys who will be 18 representing the United States of America, those being Mr. Oscar 19 Ponce and Ms. Karen Betancourt. 20 MR. PONCE: Good morning. 21 THE COURT: They are Assistant United States Attorneys. 22 23 Thank you. And representing Mr. Manuel Eduardo Pena is Mr. Ernesto 24 Gamez. Mr. Gamez, would you please stand? 25 his client, Manuel Eduardo Pena. And to his right is Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 17 of 41 22 1 Mr. Pena -- I mean, Mr. Gamez, you have an assistant, 2 someone that I would like to make sure the jury knows who she 3 is. 4 5 MR. GAMEZ: Jackie is a paralegal in my office. helps me hear sometimes and helps organize my case. 6 THE COURT: Okay. 7 MR. GAMEZ: Jackie Dorsett, Judge. 8 THE COURT: Thank you. 9 10 11 She But what's her name again? Now, does anyone know any of the people who have been introduced to you so far? All right. Let me start off. It's easier if we go by rows 12 and by sections, because we have a court reporter. 13 fortunate today to have a court reporter taking down the voir 14 dire, so -- and I -- nobody likes to be referred to by number, 15 but it's just easier for us to keep track of who said what if we 16 refer to yourself by your number or identify yourself by number. 17 18 19 20 21 22 23 24 25 We're But in any event, let me start off with this section on the first row. Anyone know any of the folks introduced to you? (No response) THE COURT: Second row? (No response) THE COURT: Third row? (No response) THE COURT: Was there somebody? So okay. Then let's start off on this side. Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 18 of 41 23 1 MR. PONCE: There was hand up there, Your Honor. 2 THE COURT: All right. 3 We have to hear what you have to say. 4 PROSPECTIVE JUROR: 5 THE COURT: 6 PROSPECTIVE JUROR: And how is it that you know him, sir? We've worked together. represented the city. 8 represented the city on a case. 9 11 THE COURT: voir dire. Thank you, sir. I'm No. 21, and I do know Mr. Gamez. 7 10 Sir, if you'll stand, please. He's I used to be an elected official, and he All right. Let me follow-up with individual Thank you. We're having what is called general voir dire. This is when 12 I'm asking questions of you as a group. 13 answering individually. 14 it's in my opinion better to discuss in a more private setting, 15 we'll have individual voir dire when -- we've asked questions of 16 all of the group, but we need to follow-up with individual voir 17 dire, we'll be bringing you in individually so we can determine 18 or get more information about whatever relationship or 19 friendship or whatever it is that you've mentioned in the 20 general voir dire. 21 Of course, you'll be But if there is something that is -- On the first row on this side? 22 PROSPECTIVE JUROR: Juror No. 39, Your Honor. I know 23 all the attorneys, both Mr. Ponce, Ms. Betancourt and Mr. Gamez 24 as well. 25 THE COURT: All right. Now, you know what? Let me just Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 19 of 41 24 1 follow-up on individual voir dire. 2 PROSPECTIVE JUROR: 3 THE COURT: 4 Yes, Your Honor. Anyone else on the first row? (No response) 5 6 Thank you. THE COURT: Next row? Just raise your hand and so we'll know where to point the microphone to. 7 PROSPECTIVE JUROR: Yes, sir. Yes, I know Mr. Gamez. 8 know Mr. Gamez way back since high school. 9 the defendant. 10 THE COURT: All right. individual voir dire. Anyone else? 14 (No response) 15 THE COURT: Thank you. All right. PROSPECTIVE JUROR: THE COURT: 20 PROSPECTIVE JUROR: 24 25 Juror No. 60. I know Ms. Betancourt And how is it that you know them, madam? United States probation officer. I've worked with them. 22 23 Now, I'm going to ask the -- and Mr. Ponce. 19 21 Well, let me follow-up on yes, I see a hand back there. 17 18 And I believe I know If my mind serves me correctly, I was his 13 16 I baseball coach. 11 12 No. 45. THE COURT: dire. Okay. I'll follow up with individual voir Thank you. Okay. Let me tell you that, you know, when a jury is selected, they're given instructions on the law that they have Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 20 of 41 25 1 to use in making their decision, and I'm going to go over some 2 of these instructions that are pretty -- you know, they're 3 basic. 4 juror would be receiving. 5 They'll go with -- they'll be instructions that every But just to give you an example of the kinds of things that 6 you're going to be -- as a jury that you have to promise that 7 you're going to follow the law that the Court gives you, you 8 would be given these instructions. 9 You, as jurors, are the judges of the facts; but in 10 determining what actually happened, that is in reaching your 11 decision as to the facts, it is your sworn duty to follow all of 12 the rules of law as I explain them to you. 13 disregard or give special attention to any one instruction or to 14 question the wisdom or correctness of any rule I may state to 15 you. 16 opinion as to what the law is or ought to be. 17 to apply the law as I explain it to you regardless of the 18 consequences. 19 You have no right to You must not substitute or follow your own notion or It is your duty It is also your duty to base your verdict solely upon the 20 evidence without prejudice or sympathy. 21 you made and the oath you took before being accepted by the 22 parties as jurors, and they have the right to expect nothing 23 less. 24 25 That was the promise So in connection with whether you know any of the individuals involved, what I'm going to do is have Mr. Ponce, Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 21 of 41 26 1 who's lead counsel in this case, give you a list of the other 2 attorneys in the -- in the Brownsville Division, U.S. Attorney's 3 office, because I'm going to want to know, have they ever 4 discussed their work with you as a prosecutor? 5 you -- they may have discussed their work with you, is that -- 6 what you've learned about their work going to be something that 7 would influence you in any way in this type of case, being a 8 criminal case? 9 Is the fact that So Mr. Ponce? MR. PONCE: Yes, Your Honor. The individuals that work 10 in our office are as follows: Ana Cano, Israel Cano, Angel 11 Castro, Sean Clancy, Holly d'Andrea, Joe Esquivel. 12 THE COURT: That's a pretty short list. 13 MR. PONCE: I was pausing to see if -- 14 THE COURT: Oh, okay. 15 MR. PONCE: May I continue, Your Honor? 16 THE COURT: Yes. 17 MR. PONCE: Debora Gerads, William Bill Hagen, Eric Let's wait until he lists all of them. 18 Hudson, Ricardo Lara, David Lindenmuth, Joseph Leonard, Charlie 19 Lewis, Nancy Masso, Elena Salinas, Paxton Warner, Latawn Warsaw, 20 Carrie Wirsing, Jody Young. 21 22 THE COURT: That concludes. Thank you, Mr. Ponce. Now, is there anyone here who knows any of the individuals 23 who have been listed for you? And all I'm going to want to know 24 is do you socialize together? Are you related? 25 discussions about their work? Is the fact that you've had those Have you had Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 22 of 41 27 1 discussions, is that going to influence you in the decision you 2 might be asked to make or that you would be asked to make if you 3 were a juror in this case? 4 5 So anyone on this side of the courtroom who knows any of the attorneys listed for you? 6 7 PROSPECTIVE JUROR: Jody Young, a former neighbor of mine. 8 9 I'm No. 29 -- No. 29. THE COURT: All right. And, madam, has he ever discussed his work with you? 10 PROSPECTIVE JUROR: 11 THE COURT: Partially. All right. As a result of the -- that your 12 acquaintance with Mr. Young and as a result of what he may have 13 discussed with you, is that going to influence you in the 14 decision you would make in this case, given the fact that you 15 have to follow the law and not allow your friendship or anything 16 that you might have learned about his work to be a factor? 17 PROSPECTIVE JUROR: 18 THE COURT: 19 So would you be able to render a verdict based upon the law and the evidence? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 25 Yes, I would. Thank you. First row. And please speak into the microphone. 23 24 I don't believe so. PROSPECTIVE JUROR: No. 6. THE COURT: Yes. Yes, ma'am. My name is -- Juror Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 23 of 41 28 1 2 PROSPECTIVE JUROR: Ms. Betancourt, many years ago. 3 4 THE COURT: All right. PROSPECTIVE JUROR: 6 THE COURT: 7 PROSPECTIVE JUROR: 8 THE COURT: 10 past, would that be an influence -- something that would influence you in the decision you'd be asked to make? 12 THE COURT: 13 PROSPECTIVE JUROR: 16 Yes, ma'am. Is the fact that you've known her in the PROSPECTIVE JUROR: 15 Yes, ma'am. Or just in passing? 11 14 So you just know her very briefly? 5 9 In the past I have talked to No. Thank you. Not with her. On this side? No. 39, Your Honor. I know the Canos, Rick Lara, Jody Young, Paxton Warner, Ms. Salinas. THE COURT: All right. Is the fact that you know -- are these social or professional acquaintances? 17 PROSPECTIVE JUROR: 18 THE COURT: They're all professional. Is the fact that you know them in that 19 capacity going to influence you in the decision you would be 20 asked to make? 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 24 him by marriage. 25 his job at all. No, ma'am. Thank you. No. 32. He's a cousin. Israel Cano. Related to I haven't spoke to him about Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 24 of 41 29 1 THE COURT: Do you see him on occasion? 2 PROSPECTIVE JUROR: 3 THE COURT: Once in a great while. All right. Is the fact that you have that 4 relationship going to influence you in the decision you'd be 5 asked to make here? 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 THE COURT: 10 Thank you. Anyone else on this side? PROSPECTIVE JUROR: Just raise your Juror No. 60. I know several of the individuals on the list on a professional level. 13 14 Thank you. hand, please, high enough where we can see you. 11 12 No, ma'am. THE COURT: All right. All right. We'll follow-up. Thank you. Now, let me explain to you what -- first of all, 15 let me tell you in summary what the charges are in this 16 indictment. 17 Counts 1 and 2, the charge being making a false statement in 18 firearms records. 19 occurred on or about December 5th, 2011, and it involved the 20 purchase of a Remington rifle. 21 There are three counts in this indictment. In The first count or the indictment alleges Count 2, allegedly same offense, making a false statement in 22 firearms record, allegedly occurring on or about December 19th, 23 2011, and it also -- involving the purchase of a Remington 24 rifle. 25 The third count alleges the making of a false statement or Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 25 of 41 30 1 representation to a department or agency of the United States, 2 which allegedly occurred on or about May 24th, 2012, and that 3 statement allegedly being made to an agent of the Federal Bureau 4 of Investigations. 5 And so let me explain to you the basic rights that a person, 6 any person who is charged with a crime has regarding charges 7 made against them. 8 9 First of all, anyone and everyone has a right to a jury trial, whether it's a traffic citation in municipal court or a 10 criminal case or felony case in state or federal court. 11 there has to be something that gives a person who is accused of 12 a crime specific notice as to what the crime is that they are 13 being accused of. 14 But If you are accused of running a stop sign here in 15 Brownsville, the complaint filed by the officer who gives you 16 the ticket has to specify where that stop sign was located and 17 the fact that although there was a traffic control device, a 18 traffic stop sign there, that you failed to stop at that stop 19 sign. 20 and specifically what actions you did that constitute a 21 violation of the law. 22 It has to tell you what date it occurred, the location, But a complaint is one that is filed in municipal court. 23 Once you're given the ticket, the officer goes to the municipal 24 court clerk at some point in time, swears out a complaint, and 25 that is what the charging instrument is, a complaint filed by a Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 26 of 41 31 1 2 law enforcement officer who swears to it under oath. In contrast, a felony, such as these crimes alleged in this 3 indictment, are not by a complaint. That is, it's not just a 4 law enforcement officer swearing out a complaint that the -- you 5 know, if the person goes to trial, you know, there has to be 6 something more than that. 7 officer believes a crime has been committed, that's his -- his 8 belief. 9 would, after hearing evidence in summary form and maybe So at some point in time, if an But in order to have a review by a body of citizens who 10 testimony form, there has -- that body is called a grand jury. 11 You know, we're picking a petit jury in this case, but there's 12 also a grand jury. 13 and petit mean, grand is the same root word as grande in Spanish 14 which means large. 15 or small. 16 And if you think about what the words grand Petit has the same root as the word petite So you have a grand jury that is a group of citizens who are 17 impaneled for a period of time, depending on the size of the 18 jurisdiction or how much work is to be done by a grand jury. 19 grand jury in Kenedy County up the road on 77 is going to meet 20 maybe for a whole year and maybe once a month or maybe every 21 other month because they don't have that much to be presented to 22 them. 23 have several -- they do have several grand juries, and they meet 24 much more frequently. 25 jurisdiction will determine when -- how long the grand jury term A Whereas a jurisdiction such as Harris County, they may So depending on the size of the Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 27 of 41 32 1 is for and how often they meet. 2 So what happens at a grand jury is in some ways similar, but 3 in some ways very different from what happens with a petit jury. 4 In a grand jury proceeding, the government is the one who 5 presents evidence. 6 summary form or live testimony or combination of both. 7 person who is being investigated does not have the right to be 8 in the grand jury room to hear the presentation of the evidence. 9 He does not have a right to have an attorney there to question 10 the witnesses that the government is calling to testify before 11 the grand jury. 12 And it may be in summary form, partially The The government presents evidence in whatever form they 13 believe it's necessary. 14 presentation of that evidence is completed, they will step out 15 of the room. 16 sufficient evidence to formally charge a person with a crime. 17 And having considered it after, you know, deliberation, there's 18 a vote. 19 no bill a person or to not return an indictment, but they may 20 decide to file or to vote on an indictment to formally charge a 21 person with a crime. 22 The -- they -- when the evidence or the The grand jury will consider whether there is And if the grand jury -- the grand jury may decide to Now, the fact that a grand jury has returned an indictment 23 is not evidence of guilt. It's the equivalent of that complaint 24 that I told you about in municipal court. 25 determined -- has made an allegation. Someone has So in this process, the Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 28 of 41 33 1 accusation made in the form of an indictment is just basically 2 officially the notice that a person is required to have; that 3 the law requires that a person accused of a crime is required to 4 have, just like I told you about the stop sign, has to tell you 5 which stop sign, where was it located, on what date, and all the 6 allegations or all the things that the complaint says that you 7 did that constitute a crime. 8 formal notice to a person of what actions would constitute a 9 crime if they are proven to a petit jury beyond a reasonable 10 11 Similarly, an indictment gives doubt. Okay. So in contrast, a petit jury is a situation where the 12 person who has been indicted has the right to hear the witnesses 13 testifying against him. 14 present to represent him to question those witnesses that the 15 government is calling. 16 oath. 17 through his attorney. 18 He has the right to have an attorney The witnesses will be testifying under But again, the -- he has the right to question them The -- a person accused of a crime doesn't have the burden 19 of proving his innocence, but he can present witnesses to 20 testify on his behalf if he wishes to. 21 will, in a similar way, be testifying under oath. 22 subject to cross-examination by the government. And those witnesses They'll be 23 Then the petit jury, after the close of the evidence and 24 after they've heard my instructions on the law and the arguments 25 of counsel, retire to deliberate. And then their decision would Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 29 of 41 34 1 be based upon whether each one of them has been convinced beyond 2 a reasonable doubt that the -- a person accused of a crime is 3 actually guilty of those crimes or a crime. 4 Now, again, the only part that is most similar -- the most 5 similar part of the role of a grand jury versus a petit jury is 6 that the deliberations of the jury are secret. 7 the jury room. 8 they've heard and the law that they're given. 9 know, when they deliberated and come to a decision, if they 10 have, they come in to make their announcement to the Court. 11 No one can be in They're there only to consider the evidence that And then, you So it's -- again, it's similar in some ways, the process of 12 grand jury versus a petit jury. 13 it's different, because the person who has been accused of a 14 crime has the right to be there to hear the testimony, 15 cross-examine witnesses. 16 evidence if he wishes, but he has the absolute right to not 17 present any evidence at all and require the government or to 18 rely on the government's evidence in making their -- the jury's 19 decision. 20 But in a very fundamental way He has also the right to present So that's part and parcel of what I've told you when I -- 21 when you were given these instructions, that it is your duty to 22 base your verdict solely upon the evidence without prejudice or 23 sympathy. 24 before being accepted by the parties as jurors, and they have 25 the right to expect nothing less. That was the promise you made and the oath you took Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 30 of 41 35 1 Having heard all of that, is there anyone here who, just 2 knowing the nature of the allegations made in this indictment, 3 could not follow these instructions that would -- also are part 4 and parcel? 5 defendant is not evidence of guilt. Indeed, the defendant is 6 presumed by the law to be innocent. The law does not require a 7 defendant to prove his innocence or produce any evidence at all. 8 9 The indictment or formal charge against the The government has the burden of proving the defendant guilty beyond a reasonable doubt; and if it fails to do so, you 10 must acquit the defendant. 11 proof is a strict or heavy burden, it is not necessary that the 12 defendant's guilt be proved beyond all possible doubt. 13 only required that the government's proof exclude any reasonable 14 doubt concerning the defendant's guilt. 15 While the government's burden of It is A reasonable doubt is a doubt based upon reason and common 16 sense after careful and impartial consideration of all the 17 evidence in the case. 18 therefore, is proof of such a convincing character that you 19 would be willing to rely and act upon it without hesitation in 20 the most important of your own affairs. 21 All right. Proof beyond a reasonable doubt, Again, knowing what the allegations are in this 22 indictment, first of all, is there anyone here who could not 23 follow the instruction that tells you, you know, when you make a 24 promise to render a verdict based upon the law and the evidence, 25 the law -- one of the most basic fundamental instructions you Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 31 of 41 36 1 would get is that that indictment is not evidence of guilt. 2 there anyone who could not follow that instruction? 3 Is (No response) 4 THE COURT: All right. I take it by your silence -- and 5 again, I can't stress enough how important it is for you to not 6 disclose an opinion. 7 that the -- my question requires you to disclose would be a 8 violation of your oath as a juror -- I mean as your oath to give 9 truthful answers about your qualifications as a juror. Because failing to disclose an opinion 10 Now, is there anyone here who, if you were required to 11 presume the defendant innocent, is there anyone here who could 12 not follow that instruction? 13 (No response) 14 THE COURT: All right. I take it by your silence that 15 if you would be given that instruction, that you would be able 16 to follow that instruction; that is, presume Mr. Pena innocent 17 of the allegations made in this indictment. 18 What about this instruction? That he -- the law does not 19 require him to prove his innocence or produce any evidence at 20 all. 21 accused of a crime, you know, you have to hear from him 22 specifically or for -- in the form of some kind of evidence 23 before you could render a verdict about the charges lodged 24 against him in this indictment? 25 Is there anyone here who would believe that if a person is (No response) Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 32 of 41 37 1 THE COURT: All right. I take it by your silence that 2 you would be able to follow that instruction that Mr. Pena does 3 not have to prove his innocence or produce any evidence at all. 4 Another important instruction is if he were to not testify, 5 which the law gives him the absolute right to not testify. 6 would be the instruction that you would get, that no inference 7 whatever may be drawn from the election of a defendant not to 8 testify. 9 10 11 Is there anyone here who, if you were given that instruction, could not follow it? (No response) 12 13 This THE COURT: Then I take it by your silence that you could follow that instruction. 14 The other important instruction is that the government has 15 the burden of proving the defendant guilty beyond a reasonable 16 doubt. And if it fails to do so, you must acquit the defendant. 17 That's a really important instruction because you would be 18 given the elements that the government has to prove as to each 19 one of the counts in this indictment. 20 instruction that tells you that unless you have been convinced 21 by the government's evidence that it has convinced you beyond a 22 reasonable doubt as to every -- each and every element of this 23 offense, that the law requires you to find the person not 24 guilty. 25 You would be given an Is there anyone here who could not follow that instruction? Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 33 of 41 38 1 (No response) 2 THE COURT: All right. And then one last thing in 3 connection with this instruction. The burden of proof in a 4 criminal case is different from a civil case. 5 served on a jury before, especially in a civil case, you were 6 given an instruction that you must -- the burden of proof by the 7 person who brings a lawsuit is by a preponderance of the 8 evidence. 9 visual, I guess, that using the scales of justice, that if the So if you've And generally the comparison is so -- to get a 10 scales tip, just -- you know, that both parties start off on the 11 same footing at the beginning of the trial. 12 who has brought the lawsuit has just a little bit more evidence 13 than the other side may present, that that's sufficient to find 14 that the plaintiff has proved his or her case by a preponderance 15 of the evidence. 16 But if the person Well, because a criminal case is a situation where -- 17 whether it's a traffic fine, you know, maximum $200, or a felony 18 case where a person might go to prison if found guilty, the 19 burden of proof is a heavier burden. 20 measurement to explain visually or to somehow make it easier to 21 understand what beyond a reasonable doubt is. 22 It's not beyond any doubt. But there's no comparable It's not beyond a shadow of a 23 doubt. This is the term that we use in courtrooms; that is, a 24 reasonable doubt -- or in this definition of reasonable doubt in 25 federal court being that a -- it is only -- that the government Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 34 of 41 39 1 2 is only required that -- I'm sorry. Let me start off again. It is only required that the 3 government's proof exclude any reasonable doubt concerning the 4 defendant's guilt. 5 reason and common sense after careful and impartial 6 consideration of all the evidence in the case. 7 A reasonable doubt is a doubt based upon It has -- it's proof of such a convincing character that you 8 would be willing to rely and act upon it without hesitation in 9 the most important of your own affairs. 10 Now, is there anyone here who believes that the government, 11 having brought an allegation such as this, that you must be 12 convinced beyond any doubt whatsoever before you could find a 13 person guilty? 14 to follow the instruction that -- and you would have your own 15 definition of what you would require before finding a person 16 guilty that would be different than the definition I've given 17 you here? 18 19 Regard -- in other words, you would not be able (No response) THE COURT: All right. I take it by your silence that 20 you are saying that -- but you could take the oath as a juror 21 that you will render a verdict based on the law that the Court 22 gives you, which would include this definition. 23 Is there anyone here who believes that the burden of proof 24 is too heavy for the government; that it should be a lesser 25 burden, more like a civil case that is -- you know, if it's more Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 35 of 41 40 1 likely than not that a person committed a crime, that that's 2 what the burden should be? 3 opinion? 4 5 Is there anyone here who has that (No response) THE COURT: And let me stress to you that again, it's 6 not -- I mean, it's really important for you to disclose any 7 opinion, because failing to disclose that opinion would be a 8 violation of the Court's instructions or would be a violation 9 actually of the oath that you would take as a juror. 10 Now, I'm going to have the government list for you the 11 witnesses who they might be calling. 12 if he has witnesses that you have the -- that he may want the 13 Court to inquire about. 14 I'm going to ask Mr. Gamez And I'll tell you why I'm going to be doing this. 15 Mr. Ponce, if you'll just wait a minute. 16 another of the instructions that you would be promising to 17 follow if you were on the jury. 18 Because this is You are the sole judges of the credibility. Well, first of 19 all, let me start off by saying I remind you that it is your job 20 to decide whether the government has proved the guilt of the 21 defendant beyond a reasonable doubt. 22 consider all of the evidence. 23 however, that you must accept all of the evidence as true or 24 accurate. 25 believability of each witness and the weight to be given to the In doing so, you must It is -- this does not mean, You are the sole judges of the credibility or Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 36 of 41 41 1 witness' testimony. 2 making judgments about the testimony of the witnesses who 3 testified. 4 part of what each person had to say and how important that 5 testimony was. 6 An important part of your job will be You should decide whether you believe all or any In making that decision, I suggest that you ask yourself a 7 few questions. 8 witness have any particular reason not to tell the truth? 9 the witness have a personal interest in the outcome of the case? 10 Did the witness have any relationship with either the government 11 or the defense? 12 Did the witness clearly see or hear the things about which he 13 testified? 14 understand the questions clearly and answer them directly? 15 the witness' testimony differ from the testimony of other 16 witnesses? 17 Did the person impress you as honest? Did the Did Did the witness seem to have a good memory? Did the witness have the opportunity and ability to Did These are a few of the considerations that will help you 18 determine the accuracy of what each witness said. Your job is 19 to think about the testimony of each witness you have heard and 20 decide how much you believe of what each witness had to say. 21 In making up your mind in reaching a verdict, do not make 22 any decisions simply because there were more witnesses on one 23 side than on the other. 24 particular point just because there were more witnesses 25 testifying for one side on that point. Do not reach a conclusion on the Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 37 of 41 42 1 All right. Now, knowing that this would be the instruction 2 that you would be required to follow, that is the -- actually 3 the instruction that you were promising when you take your oath 4 as a juror, that you're going to follow -- render a verdict 5 based upon the law and the evidence. 6 credibility that each witness who testifies must be put to. 7 it's a witness that you know, especially if it's somebody that 8 you have constant or frequent association with, obviously, you 9 know, you would be in a different position to believe their 10 11 This is the test of If testimony when they're testifying for one side or the other. So, you know, you can understand why it might not be a good 12 idea for you to be on this jury if you know one of the witnesses 13 very well and have your own opinion based upon your personal 14 friendship with that witness. 15 have a juror in your stead who does not know the witness and 16 would be making the decision about whether that witness is 17 credible strictly on what they testify to and whether the -- 18 when they put everything together, one of the witnesses has said 19 whether they believe that witness' testimony is credible 20 testimony. 21 It would be better clearly to So, Mr. Ponce, would you please list the witnesses that the 22 government believes would be calling. And they may not call all 23 the witnesses, but we have to ask whether you know the witnesses 24 just to make sure. 25 MR. PONCE: Mr. Ponce? The Court is correct, we will not be calling Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 38 of 41 43 1 all of these, so their names might come up, so I will mention 2 them. 3 THE COURT: All right. Thank you. 4 MR. PONCE: Gustavo Gonzalez, Omar Garza, Dagoberto 5 Lastra, Romulo Sanchez, Edward Bredhoft, Thomas Morrisey, 6 Michael Deans, David Schaelchlin, Albert Torriz, Shaun Owen, Roy 7 Castillo, Brian Collentine, Jaime Cavazos, Raul Garcia, Joseph 8 Navarrette, Javier Vela, Richard Longoria, Ed Ramirez, Sergio 9 Gonzalez, Raymond Rora, Juan Gonzalez, Manuel Perez the Third, 10 Ronnie Rodriguez, Julio Santos, Eddie Gonzales. 11 THE COURT: Is there anyone here on this panel who 12 believes that they may know one of the folks who have been 13 listed for you? 14 On this side first. PROSPECTIVE JUROR: Yes. I'm Juror No. 14. 15 there was Dagoberto Lastra and Romulo Sanchez. 16 because of work. 17 THE COURT: 18 voir dire you later. 19 Anyone else? 20 (No response) All right. I'm sorry. Listed on I do know them We'll individually Thank you, madam. 21 THE COURT: On this side of the room? 22 PROSPECTIVE JUROR: Juror No. 39, Your Honor. I don't 23 know if Richard Longoria is the current city commissioner or 24 not. 25 wouldn't. If he is, I would know him; but if it's not, then I Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 39 of 41 44 1 THE COURT: All right. 2 MR. PONCE: It is not the commissioner, Your Honor. 3 THE COURT: Thank you. Anyone else on this side of the All right. Mr. Gamez, are there any 4 5 room? (No response) 6 7 Mr. Ponce, do you know? THE COURT: witnesses that you wish to have the Court inquire about? 8 MR. GAMEZ: Yes, Judge. 9 THE COURT: Stand at the microphone. 10 MR. GAMEZ: Rafael Pena, who would be his brother. 11 would be Junior. 12 nephew. 13 Canales, his nephew. 14 J. Pena, nephew. 15 Pena, Junior, his nephew. 16 registered nurse. 17 Rafael Pena, Junior, his nephew. Allan Pena, nephew. Roland Pena, a nurse. That Gael Pena, Luis These are all potential witnesses. Jorge A. Pena, a Border Patrol agent. Sandra Pena, sister-in-law. Roland Jorge She's a Friends would be Anselmo Rosales, Billy June Ross, Francisco 18 Cardenas, Willie Serrata would also be a friend, and Carlos 19 Lalito Gonzalez, an acquaintance, and a Sergio Gonzalez. 20 THE COURT: Thank you. Is there anyone here who 21 believes they know any of the individuals Mr. Gamez has listed 22 for you? 23 24 25 (No response) THE COURT: side as well? On this side of the room now? Yes, sir. And on this Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 40 of 41 45 1 PROSPECTIVE JUROR: Juror No. 45. And like I said 2 before, I used to coach Mr. Pena, so I basically know his whole 3 family. 4 5 THE COURT: Thank you. I'll follow-up on individual All right. Now, is there -- voir dire. 6 Anyone else? 7 (No response) 8 THE COURT: 9 PROSPECTIVE JUROR: 10 11 12 No. 32. Maybe Luis Canales. not sure where he resides, but I know of a Luis Canales. THE COURT: Mr. Gamez, do you know the age of the person and where they reside? 13 MR. GAMEZ: He's 15-years-old. 14 THE COURT: He's 15, one five years old. 15 Is that the person you know? 16 PROSPECTIVE JUROR: 17 THE COURT: 18 I'm All right. (Nod indicated.) All right. Thank you. Then what about the fact that -- okay. First of 19 all, you've given us in your juror information form family 20 members who you have identified as being in law enforcement. 21 What I want to know is whether because you have someone who 22 you're related to who is in law enforcement, whether -- even if 23 you are not related to someone in law enforcement, whether the 24 fact that they are law enforcement officers alone would be a 25 reason for not putting their testimony to the same test for Case 1:12-cr-00472 Document 102 Filed in TXSD on 01/22/13 Page 41 of 41 46 1 2 credibility as you would a civilian. In other words, is the fact that a person is a law 3 enforcement officer going to be the reason that you 4 automatically -- that you believe anything and everything that 5 they have to say as opposed to someone who is a civilian who 6 would come in to testify under oath? 7 with having that opinion. 8 opinion and not disclose it. And there is nothing wrong What is wrong is for you to have that 9 So let me -- I'm going to first start off asking those of 10 you who have indicated that you have relatives who are in law 11 enforcement. 12 good friends with someone who is in law enforcement because I 13 want to know, have they discussed their work with you? 14 result of these discussions or just the family relationship or 15 personal relationship, are you going to be automatically 16 believing any testimony, any and all testimony of a law 17 enforcement officer and not subjecting them to the same tests 18 for credibility as you would if it's -- if it would be a 19 civilian witness? 20 And actually let me just include whether you're As a So let's talk first of all for those of you on the first row 21 who are -- either have relatives who are in law enforcement or 22 are good friends with someone who is in law enforcement. 23 you'll raise your hand. 24 25 Your number, sir. Would you please stand? PROSPECTIVE JUROR: No. 6. If Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 1 of 41 47 1 THE COURT: 2 you're related to. All right. 3 PROSPECTIVE JUROR: 4 THE COURT: 5 PROSPECTIVE JUROR: 6 THE COURT: 7 PROSPECTIVE JUROR: 8 9 Tell us about who it is that My son, he's a -- with ICE. All right. And is he here locally? Yes, ma'am. Does he discuss his work with you? No. He tells me I don't need to know. THE COURT: So the fact that you have a son who is in 10 law enforcement, would that influence you in how you would test 11 the credibility of witnesses -- 12 PROSPECTIVE JUROR: 13 THE COURT: 14 PROSPECTIVE JUROR: 15 THE COURT: 16 17 18 No, ma'am. -- called by the government especially? No, ma'am. All right. Thank you, sir. Anyone else? PROSPECTIVE JUROR: My husband. He's -- 15. He's a Border Patrol agent. 19 THE COURT: Does he discuss his work with you? 20 PROSPECTIVE JUROR: 21 THE COURT: No. Is the fact that you're married to someone 22 who is in law enforcement, would that influence you in how you 23 would test the credibility of witnesses, especially who would be 24 called by the government? 25 PROSPECTIVE JUROR: No. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 2 of 41 48 1 2 THE COURT: Then would you be able to follow the law in rendering a verdict? 3 PROSPECTIVE JUROR: 4 THE COURT: 5 PROSPECTIVE JUROR: THE COURT: All right. My father. He's a police Does he discuss his work with you? 10 PROSPECTIVE JUROR: 11 THE COURT: 12 No. 21. chief for a school district. 8 9 Thank you. Anyone else on this side? 6 7 Yes. No, he does not. Would that relationship influence you in how you would gauge the credibility of witnesses? 13 PROSPECTIVE JUROR: 14 THE COURT: 15 No. Thank you. There was a gentleman in front of you, sir. 16 PROSPECTIVE JUROR: I'm Juror No. 11, ma'am. I have a 17 brother who's a retired Border Patrol agent, and my wife was a 18 probation officer. 19 THE COURT: 20 All right. Do they discuss their work with you? 21 PROSPECTIVE JUROR: 22 THE COURT: No, ma'am, they don't. You're going to have to speak up louder. 23 But is the fact that you're related to folks who work for the -- 24 I mean, in law enforcement or for the government in relation to 25 criminal law, would that influence you in how you would gauge Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 3 of 41 49 1 the credibility of witnesses? 2 PROSPECTIVE JUROR: 3 THE COURT: Absolutely not. All right. 4 Anyone else on this side? 5 (No response) 6 THE COURT: 7 PROSPECTIVE JUROR: 8 9 Thank you, sir. On this side of the room, first row. No. 39, Your Honor. My younger brother is a federal probation officer in Houston. THE COURT: Does he discuss his work with you? 10 PROSPECTIVE JUROR: 11 THE COURT: No, ma'am. Have you actually represented folks who are 12 in -- have either been charged with a crime or especially in 13 federal court? 14 PROSPECTIVE JUROR: 15 THE COURT: Okay. Long ago, Judge. Well, you understand that you have 16 to, you know, gauge the credibility of each witness whether 17 they're civilian or law enforcement? 18 PROSPECTIVE JUROR: 19 THE COURT: 20 Would you be able to follow the instruction that requires that? 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 24 25 Yes, Your Honor. Absolutely. All right. 34. Thank you. I have some nephews and close friends, but it won't influence any -- I mean, I'm okay. THE COURT: Okay. I believe that. But have they ever Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 4 of 41 50 1 discussed their work with you? 2 PROSPECTIVE JUROR: 3 THE COURT: 4 PROSPECTIVE JUROR: Not at all. All right. 32. Thank you, madam. Cousins that are Border Patrol 5 agents, work for the Sheriff's Department, and my closest 6 friends are police officers. 7 THE COURT: Do they discuss their work with you? 8 PROSPECTIVE JUROR: 9 THE COURT: No, ma'am. Would the fact that you have such close 10 relationships and friendships influence you in how you would 11 test the credibility of witnesses? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 PROSPECTIVE JUROR: I don't believe so. Thank you, sir. I'm No. 31. I have a brother-in-law 15 by marriage who works for the Police Department in my local 16 community. 17 THE COURT: Does he discuss his work with you? 18 PROSPECTIVE JUROR: 19 THE COURT: No, ma'am. Is the fact that you're related to someone 20 going to influence you -- I mean, is someone in law enforcement 21 going to -- would that influence you in how you would test the 22 credibility of witnesses? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 PROSPECTIVE JUROR: No, ma'am. Thank you. No. 41. I have a cousin who is in Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 5 of 41 51 1 Brownsville PD. 2 3 THE COURT: Does he discuss -- he or she discuss their work with you? 4 PROSPECTIVE JUROR: 5 THE COURT: 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 No. Would that influence you in any way? No. Thank you. I'm Juror 44. I have relatives and friends that are in law enforcement. 10 THE COURT: Do they discuss their work with you? 11 PROSPECTIVE JUROR: 12 THE COURT: No, they do not. Would those friendships or family 13 relationships influence you in how you would test the 14 credibility of witnesses in this case? 15 PROSPECTIVE JUROR: 16 issue. 17 standard, so I -- 18 19 20 I think I would probably have an If they're in law enforcement, I hold them to a higher THE COURT: Okay. Let me follow-up with you. Thank you, madam. PROSPECTIVE JUROR: Juror No. 45. I was involved in the 21 juvenile justice system here in Cameron County for 28 years, so 22 I'm familiar with a lot of law enforcement officers here. 23 I have a son and a daughter-in-law that are Border Patrol agents 24 in San Diego, California. 25 police officer here in Brownsville. Then I have a son-in-law who's a Also Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 6 of 41 52 1 THE COURT: 2 PROSPECTIVE JUROR: 3 THE COURT: 4 work? 5 officers? Do they discuss their work with you? What about your own experiences in your You've had to deal with a lot of law enforcement 6 PROSPECTIVE JUROR: 7 THE COURT: 8 9 10 11 No, ma'am. Yes, ma'am. Is -- would that influence you in the way you would test the credibility of witnesses? PROSPECTIVE JUROR: THE COURT: No, ma'am. So would you be able to render a verdict or base your verdict on the evidence and the law? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 PROSPECTIVE JUROR: 15 brother-in-law, Police Department. 16 issues with me. 17 discuss any issues either. 18 THE COURT: 19 Right. Thank you. Juror No. 46. I have a brother, He doesn't discuss any I have an uncle in Immigration, and we don't Would those relationships influence you in this case? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 PROSPECTIVE JUROR: 23 work with police officers. 24 information, but it would not influence me in any way. 25 THE COURT: No, ma'am. Thank you. Juror 54. I work at a court, so I We obviously do discuss workload Thank you, madam. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 7 of 41 53 1 2 PROSPECTIVE JUROR: I have an uncle by marriage in Customs. 3 THE COURT: 4 PROSPECTIVE JUROR: 5 THE COURT: 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 Juror No. 53. Does he discuss his work with you? No, ma'am. Would that influence you in this case? No, ma'am. Thank you. Juror 51. My brother is in Border Patrol, and I have cousins in Police Department. 10 THE COURT: Do they discuss their work with you? 11 PROSPECTIVE JUROR: 12 THE COURT: 13 PROSPECTIVE JUROR: 14 THE COURT: No, they don't. I'm sorry. Yes? No, they don't. Would those relationships influence you in 15 the way you would judge the credibility of witnesses in this 16 case? 17 PROSPECTIVE JUROR: 18 THE COURT: 19 PROSPECTIVE JUROR: 20 21 22 Thank you. Juror No. 60. I have a sister who's a probation officer. THE COURT: All right. We're going to be following up All right. Now, what I want to know from with you. 23 Anyone else? 24 (No response) 25 No, it wouldn't. THE COURT: Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 8 of 41 54 1 you is first of all, you've received a long list of witnesses, 2 potential witnesses from both sides. 3 pretrial that they believe this case might take two days to try. 4 It is my intention to -- once we select a jury today, to begin 5 the evidence at a point in time that would make sense. 6 be this afternoon, depending on how long it takes us. 7 10:22. 8 1:00 or something like that. 9 I was told at final It might It's now We might recess early for lunch and then come back at I'll try to figure that out. But that means that we would be hearing testimony today, 10 tomorrow, Tuesday -- yes, tomorrow. 11 Today is Tuesday. 12 anyone who -- I mean, and, you know, that's kind of a far -- 13 just to make sure that there's -- we're prepared for this. 14 it goes on to Friday, I want to know whether there's anyone here 15 who has a conflict with these days if that's how long it would 16 take or this is when the trial would begin and when it could 17 end. 18 I lost a day. Wednesday and possibly Thursday. I'm sorry. Is there If Is there anyone here who has a conflict that you wish to 19 have the Court know about? 20 professional conflicts, I'll listen to them, but they are not an 21 automatic excuse, but ultimately I have to inquire further. 22 Yes, on the first row. 23 PROSPECTIVE JUROR: And just so that you know, Juror No. 7. And I have a plane 24 ticket to get out of the country on Friday. I'm an invited 25 speaker of the 400th anniversary of my alma mater next week. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 9 of 41 55 1 And on Thursday afternoon, I have a thesis committee, and this 2 is a bad time because most of the faculty are out of town. 3 4 THE COURT: I didn't hear -- 5 6 I'm sorry, you have a thesis committee, and PROSPECTIVE JUROR: judge a master thesis. 7 THE COURT: 8 Anyone else? 9 (No response) All right. 10 THE COURT: 11 PROSPECTIVE JUROR: 12 34. and I need to take care of her. THE COURT: 14 PROSPECTIVE JUROR: 15 THE COURT: My daughter just had surgery, She doesn't have anybody else. She doesn't have any what? Anybody else to take care of her. Oh, okay. I'm sorry. Is she an adult or a child? 17 PROSPECTIVE JUROR: 18 THE COURT: 19 PROSPECTIVE JUROR: 20 Thank you. On this side of the room? 13 16 A thesis committee, so I have to She's an adult. All right. Thank you. No. 31. I have a doctor's appointment tomorrow at 2:30. 21 THE COURT: Thank you. 22 PROSPECTIVE JUROR: No. 36, Your Honor. I have to go 23 back to work tomorrow part time, and I'm in a -- I'm in the 24 process of trying to get a second job, ma'am. 25 THE COURT: All right. Mr. -- well, sir, your work Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 10 of 41 56 1 commitments are not an excuse. 2 be able to render a verdict based upon the law and the evidence. 3 Would the fact that you -- your work situation is as you have 4 described, would that influence you in the decision you'd be 5 asked to make in this case? 6 PROSPECTIVE JUROR: 7 THE COURT: 8 9 10 But my question is, you have to No, ma'am. Would you be able to render a verdict based upon the law and the evidence? PROSPECTIVE JUROR: THE COURT: I guess. Well, you know, you're the -- you're the 11 only one who can tell me. If you were the government and 12 wanting someone to have -- to devote their full attention to 13 them, to their evidence, if you were the person accused of a 14 crime, would you want someone who is in your situation hearing 15 the evidence? 16 then that's not being able to follow or render a verdict based 17 upon the law and the evidence. 18 one that would make it impossible for you to render a verdict 19 based upon the law and the evidence? Or, you know, if they're going to be distracted, 20 PROSPECTIVE JUROR: 21 THE COURT: 22 PROSPECTIVE JUROR: So would your work situation be Yes, ma'am. Thank you. No. 50. On Friday, I -- I work two 23 days of the week. I babysit three children. One of them is 24 disabled, and they're small children. 25 the other one is -- is six, and the other one is seven. The youngest one is four, Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 11 of 41 57 1 THE COURT: 2 PROSPECTIVE JUROR: 3 Do you have custody of these children? No, I don't. They're my daughters', and I drive all the way to Mercedes. 4 THE COURT: Okay. 5 PROSPECTIVE JUROR: 6 THE COURT: And I -- If you were hospitalized, would your 7 daughter have to find other care for them, someone to care for 8 them? 9 PROSPECTIVE JUROR: I would say so. 10 THE COURT: 11 PROSPECTIVE JUROR: Thank you. 12 PROSPECTIVE JUROR: Juror No. 6. 13 Thank you. day of school is Thursday, and I would prefer to take them. 14 THE COURT: 15 PROSPECTIVE JUROR: 16 THE COURT: 17 18 19 My children's first Okay. Okay. And let's see. What are the ages? One and five. So you're talking about the five-year-old? PROSPECTIVE JUROR: No, the one-year-old, it's her first day at a new school. 20 THE COURT: Okay. 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: Okay. I'm sorry, your number again? 6 -- I mean 9. Sorry. What are your hours at your work? They're -- well, it's flexible 24 for -- it's usually 8:00 to 4:30, but I can go in later to take 25 my kids to school. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 12 of 41 58 1 2 THE COURT: Is that the normal arrangement that you make? 3 PROSPECTIVE JUROR: 4 THE COURT: 5 What I'm saying is on a daily basis, how do you -- 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 Okay. THE COURT: 11 PROSPECTIVE JUROR: 12 THE COURT: 14 I take my kids to school every day. And what hour do they go to school? I can drop them off as early as 7:00. 10 13 Yes, I can -- I have flexible hours. And is this at Harlingen? Yes. So you would be able to take your children to school? PROSPECTIVE JUROR: But I couldn't drop -- that's the 15 morning care, so I couldn't them drop at their like actual 16 classroom until 7:50. 17 18 THE COURT: Okay. them off at -- drop her off at 7:50 and then go to work? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: 22 THE COURT: 23 So is that what you do then, you drop All right. Yes. That's your normal procedure? Yes. All right. Thank you. Now, because this is a case that involves 24 firearms, I want to know whether any of you belong to an 25 organization or support an organization that advocates either Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 13 of 41 59 1 for one of two sides of the coin, either for stricter gun 2 control or for more liberal interpretation of the phrase the 3 right to bear arms. 4 opinion. 5 disclose it. There's nothing wrong with having that What is wrong is for you to have that opinion and not 6 So is there anyone here who has in some form, either by 7 becoming -- being a member of an organization or supporting the 8 basic tenets of an organization that either advocates for 9 stricter gun control or that advocates for more liberal 10 interpretation of, you know, the phrase or the right to bear 11 arms or something that constitutes that phrase? 12 13 Is there anyone here on this side of the room who belongs to an organization or supports a similar organization? 14 15 PROSPECTIVE JUROR: THE COURT: 17 PROSPECTIVE JUROR: Thank you. THE COURT: 20 PROSPECTIVE JUROR: 21 THE COURT: 25 I don't have anything Thank you. I'm Juror 17, and I belong to NRA. Thank you. I'm going to follow-up with questions on those of you who are answering my question. 23 24 No. 23. against NRA, but I'm for stricter gun control. 19 22 I don't belong to any organization, but I'm a strong advocate of stricter gun control. 16 18 Juror No. 7. PROSPECTIVE JUROR: I'm a former member of the NRA, Your Honor. THE COURT: Thank you. No. 36? Or was it -- did you Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 14 of 41 60 1 give me your number? I'm sorry, I didn't -- 39, I'm sorry. 2 PROSPECTIVE JUROR: 3 THE COURT: 4 PROSPECTIVE JUROR: Yes. 39, Judge. Thank you. I'm No. 31. I don't -- I do not 5 belong to an organization, but I believe in the right to bear 6 arms. 7 THE COURT: 8 PROSPECTIVE JUROR: 9 right to bear arms either. 10 11 THE COURT: All right. Thank you. No. 50. I don't believe on the Thank you. With the understanding -- because I'm going to 12 bring you back individually, but just to give you some time to 13 think about why it -- you know, this line of inquiry. 14 not a case in which a person's right to bear arms or not having 15 the right to bear arms is involved, because the allegation here 16 is the making of a false statement in the purchase of a firearm. 17 So that I'm just wanting for you to not conflate or blend those 18 two issues, whether a person has a right to bear arms or whether 19 there should be stricter gun control. 20 when I bring you in individual voir dire whether your belief is 21 going to influence you in the decision that you'd be asked to 22 make, whether a person knowingly made a false statement during 23 the purchase of a firearm. 24 25 This is But I want you to tell me Because the next question I have to ask or that I want to ask is whether in connection with the purchase of a firearm, is Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 15 of 41 61 1 there anyone here who believes that there is too much 2 government -- in other words, having to file or declare, make a 3 declaration in a form is just too much restriction on the 4 purchase of a firearm. 5 person who purchases a firearm is that he is the actual buyer of 6 that firearm. 7 document required by the Alcohol -- the Bureau of Alcohol, 8 Tobacco, Firearms and Explosives Form 4473, I believe it is, 9 that says that there you have to declare that you're buying the Because one of the questions that a In other words, the representation is made on a 10 gun for yourself. 11 for somebody else. You're the buyer; that you're not doing it 12 Now, is there anyone here who believes that requiring a 13 person to make that declaration is just too much government 14 intrusion on the right to bear arms? 15 16 (No response) THE COURT: All right. I take it by your silence that 17 if you're told that this is what the law is, that -- that the 18 making of a false statement in such a form, that you would be 19 able to follow the instruction of the Court that says this is 20 what -- what you have to find in making your decision. 21 position on gun control or no gun control or more liberal 22 interpretation, that that is not going to influence you in any 23 way in the decision you'd be asked to make. 24 25 All right. And your Is there anything that I've not asked about that you believe that the Court and the parties should know about Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 16 of 41 62 1 that would in some way, in your opinion, might have a bearing 2 upon your qualifications to serve as a juror in this case? 3 PROSPECTIVE JUROR: No. 31. I was just thinking if 4 somebody might have owned Remington rifles, maybe more than one, 5 and if -- 6 THE COURT: Oh, are you saying that the ownership of a 7 rifle such as that, if someone owns a rifle, would that 8 influence them in the decision they'd be asked to make? 9 10 PROSPECTIVE JUROR: 13 Somebody owning a Remington and if somebody tried to -- 11 12 Could be, yes. THE COURT: voir dire. Excuse me. Let me follow-up on individual We can follow-up on that. Again, anything that I've not inquired about that you 14 believe might have a bearing, or at least you want to disclose 15 that to the Court and the parties that might have a bearing upon 16 your service as a juror in this case. 17 18 All right. Mr. Ponce, are there any -- yes, ma'am, back there. 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: No. 50. Uh-huh, yes. I am a minister of the word of God 22 throughout the world, and I do not believe on judging anybody, 23 anyone, so I -- I don't think I would be a good judger if I was 24 to serve as -- on the jury. 25 THE COURT: Are you saying that because of your Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 17 of 41 63 1 religious beliefs, that you would not be able -- let me finish 2 my question. 3 answering, and I haven't finished yet. 4 I haven't finished it yet. You're already Are you saying that your religious beliefs would not permit 5 you -- I haven't finished the question yet. 6 your religious beliefs would not permit you to follow the law 7 and render a verdict based upon the law and the evidence? 8 PROSPECTIVE JUROR: 9 THE COURT: 10 Yes, ma'am. All right. PROSPECTIVE JUROR: on the prosecuting attorneys. 12 attorney's office or not? THE COURT: Thank you. No. 59, Your Honor. 11 13 Are you saying that I wasn't clear Are they with the district They are not assistant district attorneys. 14 A district attorney is a state official. 15 Attorney for the Southern District of Texas. 16 Mr. Ponce are Assistant United States Attorneys. 17 in the past assistant district attorneys, but currently they're 18 Assistant U.S. Attorneys. 19 PROSPECTIVE JUROR: 20 THE COURT: 21 22 23 Okay. Thank you. There's a U.S. Ms. Betancourt and They have been Thank you. Anyone else? (No response) THE COURT: Mr. Ponce, are there any questions that the government wishes for me to pose to the panel? 24 MR. PONCE: No, Your Honor. 25 THE COURT: Mr. Gamez, any questions you wish for me to Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 18 of 41 64 1 pose to the panel? 2 MR. GAMEZ: Yes, Judge, two. If the jury understands 3 that under 11E or Section 11 of the ATF Form 4473, also the law 4 is if the jury is approached with that by the Court, that they 5 can buy a gift of a firearm. 6 a firearm that are legal, or a person in the State of Texas, a 7 private individual can sell a firearm to another individual so 8 long as they're residents of the State of Texas. 9 have a problem with that if approached with that jury 10 They can have gift certificates of If they will instruction. 11 THE COURT: Have you submitted an instruction to that 13 MR. GAMEZ: Yes, Judge, you have it. 14 THE COURT: May I see it, please? 15 MR. GAMEZ: If I may approach, Judge? 16 THE COURT: We're finding it here. 17 MR. GAMEZ: Page 23, Judge. 18 THE COURT: The request is denied. 12 19 effect? Thank you. Any other questions, Mr. Gamez? 20 MR. GAMEZ: No more questions. 21 THE COURT: All right. Then, members of the jury -- 22 well, first of all, I'm going to recess you. And those of you 23 who I've indicated we want to follow-up with on individual voir 24 dire, you'll be called in one by one. 25 questions. We'll follow-up with more Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 19 of 41 65 1 Mr. Ponce, if there are other individuals or individuals 2 that you wish to have the Court individually voir dire, and same 3 thing for you, Mr. Gamez, I'm going to -- we're going to be 4 going through the list just to make sure that everybody is 5 identified for purposes of individual voir dire. 6 we've not listed someone and you would like to have the Court 7 bring that person in for individual voir dire, be sure to give 8 us that number, and then we'll go over the list one more time 9 before we've released the jury panel. 10 If we've -- if Stella, would you please list for us the ones we've already 11 identified as someone who will be brought back for individual 12 voir dire? 13 COURT CLERK: Yes, Your Honor. No. 7, No. 14, No. 17, 14 No. 21, No. 23, No. 24, No. 25, No. 31, No. 38, No. 39, No. 44, 15 No. 45, No. 50, and No. 60. 16 17 THE COURT: Mr. Ponce, are there any others that the Court has overlooked or that you would like to include? 18 MR. PONCE: 27. 19 THE COURT: 27? 20 MR. PONCE: And No. 36, Your Honor. 21 THE COURT: 36. 22 MR. PONCE: No. 38. 23 THE COURT: 38. 24 MR. PONCE: 38, I'm sorry, that's already been 25 mentioned. 59. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 20 of 41 66 1 2 3 THE COURT: And 59. Mr. Gamez, are there any others that you would like to have the court bring back for individual voir dire? 4 MR. GAMEZ: No, Judge. 5 THE COURT: All right. Then let's go over the list one 6 more time. 7 like I'm calling bingo here. 8 listed, please wait outside in the ante room, and we'll bring 9 you back in for individual voir dire. 10 Listen for your number. COURT CLERK: If your number is -- I feel If your number is called or Stella? No. 7, No. 14, No. 17, No. 21, No. 23, 11 No. 24, No. 25, No. 27, No. 31, No. 36, No. 38, No. 39, No. 44, 12 No. 45, No. 50, No. 59, and No. 60. 13 THE COURT: All right. I'm going to recess you. It's 14 10:43. 15 to finish with jury selection before noon so that we can cut you 16 loose if you're not going to be on the jury. 17 As I indicated when I started voir dire, that I'm hoping But I want you to do two things for me. One, don't leave 18 the building. And, two, don't talk about anything that could be 19 misinterpreted. 20 that's related to what we've been talking about during 21 individual voir dire because regrettably, if you were to be 22 overheard having a conversation, we have to bring you in. 23 have to tell us what you said. 24 other person to ask them what they recall you said, and we have 25 a little mini trial. I don't want for you to discuss something You Then we have to bring in the It delays everybody. Don't do it. Just Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 21 of 41 67 1 talk about the weather, talk about, you know, the building, talk 2 about the Olympics, just anything but anything related to this 3 case. 4 I'm hoping to be able to reassemble you in about an hour. 5 If -- you know, if we could do it earlier, obviously I'd prefer 6 that. 7 have to remain. But, you know, we don't want to rush the 8 process either. So I'm giving myself an hour. 9 11:45 before we reassemble. That way we can get everybody out of here that doesn't So let's say So would you please wait outside. 10 If your number is called and then after that you'll be cut 11 loose, but please don't leave the building and don't talk about 12 the case. 13 14 Thank you. (Jury panel leaves.) THE COURT: Okay. I'm going to recess briefly. But in 15 the meantime, I would ask the parties to consult as to, you 16 know, whether there's any -- any of the individuals already 17 identified for purpose of individual voir dire who you can agree 18 to excuse. 19 Thursday, maybe, you know, excusing him, but I don't want him to 20 know he's being excused for that reason. 21 that's already indicated by their answer, that you-all can agree 22 to excuse them. 23 we'll just go on with individual voir dire, those of you that -- 24 I mean those of them who you've not agreed on. 25 momentarily. And I'm thinking about the man with the thesis on But somebody like that Or, you know, when I come back in, that way Thank you. So I'll be back Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 22 of 41 68 1 (Recess taken from 10:48 to 11:02.) 2 THE COURT: 3 All right. Thank you. Counsel, I've been informed that you have agreed 4 to excuse about five people. 5 are, please. 6 7 Please be seated. MR. PONCE: Why don't you tell me who they Your Honor, Oscar Ponce for the government. We have agreed to excuse No. 7. 8 THE COURT: Okay. 9 MR. PONCE: No. 34, No. 36, 39, 50, 59, and 60. 10 THE COURT: Okay. 11 MR. PONCE: Yes, Your Honor. 12 THE COURT: Okay. 13 MR. PONCE: Yes, Your Honor. 14 THE COURT: And No. -- what's the next one? 15 COURT CLERK: 16 THE COURT: 17 50, 59 and 60? No. 7 is the professor? 34. 34. Let me look at that. Oh, she's the lady with the children? 18 MR. PONCE: With the daughter that had surgery. 19 THE COURT: Oh, yes. 20 21 her. Okay. Go ahead. MR. PONCE: 22 work tomorrow. 23 a verdict. Okay. I was planning to excuse And then No. 36? 36 is the individual that indicated he has He said it would be impossible for him to render 24 THE COURT: Okay. And then No. 39. 25 MR. PONCE: Mr. Pena has been -- has been represented by Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 23 of 41 69 1 defense counsel, and he knows all the attorneys and -- 2 THE COURT: Oh, he has -- you represented him at one MR. GAMEZ: Yes, I most certainly did, Judge, state 6 THE COURT: Okay. 7 MR. GAMEZ: It went very well, like I hope it does here, THE COURT: No. 11 MR. GAMEZ: Yes, Judge, it did. 12 THE COURT: That's scary. 13 MR. GAMEZ: Those were difficult times, Judge, but we 3 point? 4 5 8 court. Judge. 9 10 14 I said did it have to do with a will contest? That was scary. prevailed. 15 16 Did it have to do with a will? THE COURT: do with this. I'll tell you why later, but has nothing to But No. 50 was -- 17 MR. PONCE: She's the lady that -- 18 THE COURT: The minister? 19 MR. PONCE: Yes, Your Honor. 20 said. She couldn't be fair, she She couldn't judge. 21 THE COURT: And No. 59? 22 MR. PONCE: No. 59. 23 THE COURT: Okay. 24 MR. PONCE: And the individual who's associated with the 25 DA's office. He asked about the state, the DA's office. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 24 of 41 70 1 THE COURT: What's his relationship? 2 MR. PONCE: He's a cousin of the individual that we're 3 He's a pharmacist. currently prosecuting, Your Honor. 4 THE COURT: Okay. 5 MR. PONCE: She is the probation officer who knows the 6 Got it. And No. 60? parties and -- 7 THE COURT: She works for us? 8 MR. PONCE: She works for the court system. 9 THE COURT: Okay. Then I'm excusing those individuals 10 from individual voir dire and if the agreed challenges for cause 11 as well ultimately? 12 13 14 MR. PONCE: We have -- we're in agreement to that. At least that's my understanding, Your Honor. THE COURT: Mr. Gamez, is it only for excused to be -- I 15 mean to be excused from individual voir dire or to be an agreed 16 challenge for cause? 17 MR. GAMEZ: If it please the Court, yes, Your Honor. 18 THE COURT: To both? 19 MR. GAMEZ: We don't need to voir dire them or ask them 20 21 22 questions, Judge. THE COURT: But do you agree that they be challenged for cause or excused? 23 MR. GAMEZ: Absolutely, Judge. 24 THE COURT: All right. 25 cause and excuses are granted. Then the agreed challenges for So No. 7, No. 34, 36, 39, 50, 59 Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 25 of 41 71 1 and 60 do not have to be brought back for individual voir dire. 2 So tell them, please. 3 that they'll be brought in with the rest of the panel. 4 All right. So then that leaves who that we'll be bringing 5 in for voir dire? 6 be sure. 7 I'm asking the CSO to please tell them Let's just go through that list now just to MR. PONCE: Your Honor, the Court, I don't believe, had 8 called No. 9. We discussed that. That is the lady that drops 9 off her children on the first day of school on Thursday, at 10 least at 7:50 or so. She did not say whether she has someone to 11 pick them up at 4:30 or 5:00. 12 if that was possible. 13 trial, maybe she can have somebody pick up her children if 14 that's what she needs to do. We just wanted to ask her to see Since this is going to be a very short 15 THE COURT: Okay. 16 MR. GAMEZ: Defendant does not have an objection to 17 18 I'll follow-up with that. cause, Judge. THE COURT: Okay. How many does that leave for us right 19 now with these people excused? 20 to agree to her being excused? 21 MR. PONCE: possible. 23 to ask her to clarify that. 25 Okay. We don't want to inconvenience her. THE COURT: Do you want Well, we'd like to keep her as a juror if 22 24 We're fine? Okay. for individual voir dire. We just needed So No. 9 will also be brought back in So whenever you locate her, just let Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 26 of 41 72 1 her know. 2 Okay. 3 4 5 We'll bring -- she's here? No. 9 then. can follow along. Tell me again the number so we can -- I No. 9 and who else? MR. PONCE: I believe the Court filed No. 14, No. 17, No. 21, 23. 6 THE COURT: Wait a minute. 7 MR. PONCE: 25, 27, 31, 44, and 45. 8 COURT CLERK: 9 MR. PONCE: Okay. Wait a minute. 23, 24. We skipped 38. Oh, I'm sorry. I skipped No. 38 also. 10 COURT CLERK: 11 MR. PONCE: 38 also. 12 THE COURT: 38 also? 13 MR. PONCE: Yes, Your Honor. 14 THE COURT: All right. 15 MR. GAMEZ: 29? 16 THE COURT: Was that somebody else that we -- 17 MR. GAMEZ: Yes. 18 THE COURT: Was she on the original list? 19 MR. PONCE: Not that I'm aware of. 20 MR. GAMEZ: No, Judge, but he said he knew one of the 21 22 38. Bring in No. 9. He didn't mention 29. government's employees, prosecutors, Jody Young personally. THE COURT: I know. But I asked you, Mr. Gamez, any 23 others than the ones that we listed first, the ones that 24 Mr. Ponce asked to be brought back in, and then I gave you the 25 opportunity to give me the number of anyone who was not listed Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 27 of 41 73 1 already. So are you now asking for No. 29 to be individually 2 voir dired? 3 MR. GAMEZ: If at all possible. 4 THE COURT: Okay. 5 MR. GAMEZ: That's it, Judge. 6 THE COURT: Then if you can find No. 29 as well, but 7 first bring in No. 9. 8 9 MR. PONCE: Do I do it before the microphone over here, Your Honor, or just -- 10 11 Anybody else? THE COURT: No, over there is fine. Thank you. (Juror present.) 12 THE COURT: Yes, ma'am. We're just following up on what 13 you indicated as far as your child's -- your children's class 14 schedule. You said on -- I told you that it might go as late as 15 Thursday. When does school begin for them? 16 PROSPECTIVE JUROR: 17 THE COURT: 18 Okay. PROSPECTIVE JUROR: 20 THE COURT: 22 23 24 25 And so if you dropped off your child at 7:50 and we started here at 8:30, would that be a feasible -- 19 21 Thursday morning. Yes. -- drive for you? And what about who picks them up? PROSPECTIVE JUROR: My husband. He goes in to work earlier and gets out earlier, so he can pick them up. THE COURT: conflict? Okay. So there shouldn't be a problem or a Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 28 of 41 74 1 PROSPECTIVE JUROR: 2 THE COURT: 3 All right. We'll keep -- if you wind up on the jury, we'll keep that in mind for scheduling on Thursday. 4 PROSPECTIVE JUROR: 5 THE COURT: 6 No. Okay. Thank you, madam. (Juror leaves.) 7 THE COURT: No. 14. I guess it would be because of the 8 fact that she indicated she knows some of the witnesses and is 9 in mission support? 10 MR. PONCE: Yes. She knows -- and actually the 11 individuals we mentioned, their names might be mentioned, but we 12 don't expect to call them. 13 THE COURT: 14 Okay. Thank you. Bring in No. 14. (Juror present.) 15 THE COURT: Good morning, madam. 16 PROSPECTIVE JUROR: 17 THE COURT: Good morning. Let me first ask, you indicated on your form 18 that you had served on a civil jury before in county court; is 19 that right? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 PROSPECTIVE JUROR: 23 Did you reach a verdict in that case? I don't remember. I believe so. It's been many years ago. 24 25 Correct. THE COURT: case? All right. And were you the foreman in that Were you the foreman of the jury? Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 29 of 41 75 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 THE COURT: 5 The one who guided the deliberations. Okay. PROSPECTIVE JUROR: 7 THE COURT: Anything about that experience that No, not at all. All right. And do you remember the nature of the case, what it was about? 9 PROSPECTIVE JUROR: 10 THE COURT: 11 in mission support. 12 Border Patrol? 13 14 Oh, no, no, no, no. would influence you in this case, first of all? 6 8 Hum. Okay. I really don't remember. Now, let me ask you about your work What is it specifically that you do with PROSPECTIVE JUROR: I'm in charge of the Human Resources Department. 15 THE COURT: Okay. 16 PROSPECTIVE JUROR: And I'm also in charge of all the A 17 Files that we get from prosecutions office that we have to 18 reroute to district office. 19 THE COURT: All right. So in your work with Human 20 Resources, would you then at some point have occasion, if there 21 was an investigation by the Office of Professional 22 Responsibility or some -- an entity like that, they're doing an 23 investigation of an employee, would your office be notified of 24 that? 25 PROSPECTIVE JUROR: Well, you mean like OIG? Or I Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 30 of 41 76 1 really don't understand. 2 THE COURT: Office of Inspector General, that might be 3 something for Border Patrol might be the one. 4 if someone is being investigated because of something that 5 they've done in connection with the discharge of their duties 6 that is illegal potentially. 7 PROSPECTIVE JUROR: 8 anymore. 9 employees. Well, right now I don't do that We do get like the disciplinary forms for the We did receive them, you know, to see what is the 10 outcome. 11 I really don't do that anymore. 12 In other words, I would receive them and then safeguard them. THE COURT: Okay. But now Well, just asking if the evidence 13 were to be that Mr. Pena is employed by the federal government 14 and, as a result, would have been -- you know, have a Human 15 Resources person, you know, in some way involved in his hiring 16 and any actions that relate to his work, would that influence 17 you in any way in how you would weigh the evidence, given your 18 experience, first of all? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 No. All right. Have you ever had to testify in a criminal or civil case in relation to the work that you do? 22 PROSPECTIVE JUROR: 23 THE COURT: No. So have you understood why it's important 24 for a juror to -- you know, when they say the words "I do," that 25 they mean that they will follow the -- they will make a decision Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 31 of 41 77 1 based on the evidence and the law and to not allow a 2 professional relationship with people who are in law enforcement 3 or a person's feeling of, you know, I'm part of the government 4 and, you know, I have to basically, you know, be part of the 5 government and who's prosecuting this person. 6 Is there anything about your work, the fact that you work 7 with law enforcement officers, that would give you reason to 8 judge their credibility in a different way than you would 9 someone who's a civilian? 10 PROSPECTIVE JUROR: 11 THE COURT: No. Is there anything about your work, 12 especially as it relates to in the past, in connection with 13 Human Resources or somehow a relation to it that would influence 14 you if you learned that Mr. Pena is a -- a government employee 15 and, you know, that knowledge now in some way influence you in 16 how you judge the credibility of the witnesses for the 17 government and any witnesses that he may present? 18 PROSPECTIVE JUROR: 19 THE COURT: 20 Would you be able to render a verdict based upon the law and the evidence? 21 PROSPECTIVE JUROR: 22 THE COURT: 23 24 25 No. Yes. All right. Thank you. All right. And, counsel, just to refresh (Juror leaves.) THE COURT: your memory, I entertain challenges for cause at the time that Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 32 of 41 78 1 individual voir dire is completed. 2 afterwards. 3 urging a challenge for cause or an opposition. 4 Okay. 5 6 I'd rather hear from you if you're going to be What about No. 17? MR. PONCE: That is the individual that indicated on the form that persons -- that she's an NRA member. 7 8 THE COURT: NRA? Okay. All right. No. 17. (Juror enters.) 9 THE COURT: Good morning, madam. 10 PROSPECTIVE JUROR: 11 THE COURT: 12 PROSPECTIVE JUROR: 13 THE COURT: 14 I don't want to wait until Good morning. Which senator did your husband work for? Senator Grassley of Iowa. Oh really? Okay. But you've been here in this area now for -- 15 PROSPECTIVE JUROR: 16 THE COURT: Nine years. Nine years, okay. Let me ask you then, my 17 question -- or you answered my question about whether you belong 18 to an organization, and you indicated your membership in the 19 National Rifle Association. 20 PROSPECTIVE JUROR: 21 THE COURT: Yes. When I was reading down here, I was thinking 22 is it the Association of Railroad Passengers? 23 unusual. 24 25 That's kind of But in any event, you understand -- well, first of all, is your membership in the National Rifle Association, do you Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 33 of 41 79 1 believe it would be something that would influence you in how 2 you would gauge the credibility of witnesses called by the 3 government or the defendant if he chose to call witnesses? 4 5 THE WITNESS: any effect. 6 Neither one. I don't think it would make I just wanted to mention it. THE COURT: Thank you. But also you understand that 7 this is a requirement, that is the making of a statement in a 8 federal document that says that you are the actual buyer of the 9 firearm? 10 PROSPECTIVE JUROR: 11 THE COURT: Yes. Is there anything about your membership or 12 is there any position that the NRA has taken regarding whether 13 that is a -- an intrusion on the right to bear arms? 14 PROSPECTIVE JUROR: I don't know about their stand. I 15 belong because I just think that people should have a right to 16 bear arms. 17 problem in this case from everything you've said. 18 I don't -- there's nothing that would indicate a THE COURT: All right. So would you be able to render a 19 verdict based upon the law and the evidence that the Court gives 20 you? 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 24 25 Definitely. Thank you, madam. Thank you. (Juror leaves.) THE COURT: Okay. No. 21. What's the situation? Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 34 of 41 80 1 2 COURT CLERK: It's a juror that knows Mr. Gamez, and I think Mr. Gamez represented the city. 3 THE COURT: 4 COURT CLERK: 5 THE COURT: Was he a city commissioner? 6 MR. GAMEZ: He was the interim mayor, Judge, for San 8 THE COURT: So he was the mayor of San Benito? 9 MR. GAMEZ: The interim mayor. 10 THE COURT: Oh, interim mayor. 11 MS. BETANCOURT: 7 12 13 Okay. He was mayor. Benito. That was when they had that conflict between the mayor that didn't, I guess, pay his taxes and the -THE COURT: Too many conflicts I've read about. Okay. 14 Tell me what the nature of the situation was in your 15 representation, Mr. Gamez. 16 MR. GAMEZ: 17 the interim mayor. 18 for maintaining his office because he hadn't paid his taxes. 19 20 THE COURT: I represented the city, San Benito. He was We filed a TRO against a certain individual You mean a commissioner on the San Benito commission? 21 MR. GAMEZ: Yes, Judge. 22 THE COURT: Okay. And so you were basically his lawyer, 23 in effect, because of the fact that he was wanting to get that 24 person out of office or something like that? 25 MR. GAMEZ: The City of San Benito employed me to Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 35 of 41 81 1 represent the city, Judge, and he was the interim mayor. 2 THE COURT: Did I have that case? Was it here? 3 MR. GAMEZ: It was in Judge Rolly Olvera's court. And 4 then from there, they filed in federal court again, and then 5 they dismissed the case. 6 7 THE COURT: MR. GAMEZ: THE COURT: 11 COURT CLERK: 15 Stella, do you recall? Yes, we had it here, Judge. I believe it was your case. 13 14 Yes, the mayor, Hernandez, then went from state court to federal court. 10 12 When you say "they," it would have been the commissioner who was being challenged? 8 9 Okay. You may have had it. THE COURT: That's what I thought. Okay. Let me bring in No. 21. (Juror present.) 16 THE COURT: Good morning, sir. 17 PROSPECTIVE JUROR: 18 THE COURT: Good morning. All right. You indicated Mr. Gamez 19 represented the City of San Benito when you were the interim 20 mayor apparently; is that correct? 21 PROSPECTIVE JUROR: 22 23 Yes, Your Honor, in state district court. THE COURT: All right. Is there anything about the fact 24 that -- well, first of all, did your -- how long was your tenure 25 on the city commission in San Benito? Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 36 of 41 82 1 PROSPECTIVE JUROR: 2 THE COURT: I was for one term, three years. Three years, okay. So in your service as 3 interim mayor, it would have been during that one three-year 4 term? 5 PROSPECTIVE JUROR: 6 THE COURT: 7 Yes, ma'am. And how long was your service as interim mayor? 8 PROSPECTIVE JUROR: 9 THE COURT: Okay. About a year-and-a-half. And so Mr. Gamez was representing the 10 City of Brownsville. 11 the City of San Benito, you would have had to deal with him, 12 with Mr. Gamez? 13 14 And as the chief elected official then for PROSPECTIVE JUROR: commission. I dealt with him, but as a We would make decisions obviously as a group. 15 THE COURT: Okay. 16 PROSPECTIVE JUROR: 17 THE COURT: It was strictly professional. All right. Is the fact that you know 18 Mr. Gamez in that capacity, would that influence you in how you 19 weigh the credibility of witnesses called by the government? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 Would that affect the weight that you give to the -- you might give to the witnesses called by the defense? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 No, that wouldn't affect. No, Judge. Would that experience influence you in any way in the decision you'd be asked to make? Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 37 of 41 83 1 PROSPECTIVE JUROR: 2 THE COURT: 3 Would you be able to render a verdict based upon the law and the evidence? 4 PROSPECTIVE JUROR: 5 THE COURT: 6 Yes, Your Honor. Thank you. (Juror leaves.) 7 THE COURT: 8 COURT CLERK: 9 THE COURT: 10 No, Judge, it would not. No. 23. What's the reason for him? Also stricter gun control, Your Honor. Okay. No. 23. (Juror present.) 11 THE COURT: Good morning, sir. 12 PROSPECTIVE JUROR: 13 THE COURT: Good morning. Just following up on your answer to a 14 question about gun control or right to bear arms. 15 believe -- well, you tell me so there's no question about what 16 your position is. 17 PROSPECTIVE JUROR: Let me put it this way. And I I had some 18 kid point a loaded gun at me that his dad had given him for a 19 present. 20 THE COURT: Okay. 21 PROSPECTIVE JUROR: You know, I -- my brothers are 22 military. 23 against that, but I think there's not enough gun control. 24 25 They have hunting rifles, and I don't have no problem THE COURT: All right. Well, you understand that what -- I've explained, you know, with various examples about Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 38 of 41 84 1 the fact that a person's opinion -- if a juror makes a decision 2 in a case based on their personal experience or opinion, that 3 that would be a violation of the oath that they're going to 4 render a verdict based upon the law and the evidence. 5 So you are -- and this is your opportunity, you know. You 6 can't be on the jury and say, oops, I should have recused myself 7 basically. 8 render a verdict based upon the law and the evidence. 9 opinion and my experience is influencing me here. 10 I should have told the judge, you know, I can't My So this is going to be your chance to tell us under oath 11 whether your opinion about -- that there should be more gun 12 control or even your experience where the child or minor pointed 13 a gun at you, would those influence you in the decision you'd be 14 asked to make in this case? 15 PROSPECTIVE JUROR: 16 THE COURT: I think it would. All right. Then you're saying that you 17 would not be able to render a verdict -- or you're not sure that 18 you could render a verdict based upon the law and the evidence? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 24 25 All right. Thank you, sir. (Juror leaves.) 22 23 No. THE COURT: So is anyone going to make a challenge for MR. PONCE: Oh, I'm sorry, Your Honor. cause? challenges for cause. Yes, government Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 39 of 41 85 1 2 3 4 MR. GAMEZ: Yes, Judge. I will challenge No. 23 for THE COURT: The government's -- No. 23, what says the cause. government in response? 5 MR. PONCE: We join in that. 6 THE COURT: Sustained. 7 8 9 Challenge for cause for No. 23 is sustained. All right. No. 24. MR. PONCE: What's the reason for that one? No. 24, at the bottom of our questionnaire 10 indicated that she may have an inability to serve because of a 11 disabled child, but I don't know if that's full time care or 12 that's evening care. 13 14 THE COURT: We just -- we probably will agree to it. All right. (Juror present.) 15 THE COURT: 16 PROSPECTIVE JUROR: 17 THE COURT: 18 No. 24. Good morning, madam. Good morning. All right. Madam, I understand that you -- well, you have two children, 14 and 13? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 24 THE COURT: 25 PROSPECTIVE JUROR: (Nod indicated.) Yes? Yes, I do. And one of them is disabled? Yes, ma'am. Does he attend school? Yes. Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 40 of 41 86 1 THE COURT: 2 where, San Benito? And would that be here in Brownsville or 3 PROSPECTIVE JUROR: 4 THE COURT: 5 PROSPECTIVE JUROR: And what time does he get out of They start school at 8:00, and they finish school at 4:15. 8 9 All right. school? 6 7 San Benito, yeah. THE COURT: And who normally -- how does he normally get home? 10 PROSPECTIVE JUROR: 11 THE COURT: Okay. I take him and I bring him. And if you were incapacitated in some 12 way, would there be someone else who could pick them up and take 13 them to school? 14 PROSPECTIVE JUROR: 15 THE COURT: No. So they would be absent from school? If you 16 were -- if you were hospitalized for a week, they would not 17 attend school for a week? 18 PROSPECTIVE JUROR: I would have to find somebody 19 because I don't -- my parents, my mom is sick, and my dad takes 20 care of her full time, so I don't really have anybody. 21 THE COURT: 22 then what happens? All right. And so when you bring them home, Do you stay home with -- with the children? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 PROSPECTIVE JUROR: Yes, I do. You don't work after 4:30? No, I don't. I work from 8:00 in Case 1:12-cr-00472 Document 102-1 Filed in TXSD on 01/22/13 Page 41 of 41 87 1 the morning until 1:00. 2 have time for my older one. 3 4 THE COURT: And what is the nature of the disability? I'm not wanting to pry. 5 6 That's my schedule so I can, you know, PROSPECTIVE JUROR: and he's LD and ADH. 7 THE COURT: 8 PROSPECTIVE JUROR: 9 THE COURT: 10 He's got a macular in the left eye, What's an LD? I know. Learning disabilities. And the macular scarring of what again? 11 PROSPECTIVE JUROR: 12 THE COURT: 13 PROSPECTIVE JUROR: Okay. He's blind in one eye. And -- but so he has vision? Just on the right eye. 14 everything prepared for him for school. 15 him. All right. And I get I do everything for 16 THE COURT: Okay. Mr. Ponce? 17 MR. PONCE: I was just going to ask, is the San Benito 18 School District in session this week, these next few days, or do 19 they start next week? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 Okay. So they're not even in school right now? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 They start on the 27th. and 1:00? No, they're not. So what happens to them when -- between 8:00 Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 1 of 41 88 1 2 PROSPECTIVE JUROR: because I -- I take care of my mom as a provider. 3 THE COURT: 4 PROSPECTIVE JUROR: 5 with. Uh-huh. THE COURT: 7 PROSPECTIVE JUROR: I'm sorry? My younger son was attending the Boy's Club. 9 10 Because I have nobody to leave them And my younger son was attending Boy's Club. 6 8 I sometimes take them with me THE COURT: Okay. All right. Thank you, madam. (Juror leaves.) 11 MR. PONCE: Your Honor, we would move to strike for 12 cause. 13 take care of it, it seems like she's troubled by the fact that 14 she may not. 15 Although she said that she's got someone that she can THE COURT: Well, I tell you what I see. Mr. -- first 16 of all, Mr. Gamez, do you have any objection to excusing this 17 woman? 18 19 20 MR. GAMEZ: Her being a juror, Judge, would cause great discomfort for us, Your Honor. THE COURT: Well, I'm going to excuse her, but not 21 because she's uncomfortable. I'm going to excuse her because 22 she has a minor child who's disabled that she has the 23 responsibility of caring for, so that's the legal reason for it. 24 MR. PONCE: That's what I should have said. 25 THE COURT: So No. 24 is excused. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 2 of 41 89 1 Okay. 2 No. 25. MR. PONCE: No. 25 indicated that she might have 3 surgery; but that since this questionnaire was filled sometime 4 earlier, we don't know if that's something -- 5 6 THE COURT: All right. No. 25. (Juror present.) 7 THE COURT: Good morning, madam. 8 PROSPECTIVE JUROR: 9 THE COURT: Good morning. Just want to follow-up. 10 your form that you might have surgery. 11 issue this week? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 PROSPECTIVE JUROR: 15 No, not at all. All right. Thank you, madam. Thank you. THE COURT: further. And stop me when we don't have to go any But what's No. 27. 18 MR. PONCE: 27, NRA member. 19 THE COURT: Okay. 20 THE COURT: 22 PROSPECTIVE JUROR: 23 THE COURT: 25 No. -- okay. No. 27. (Juror present.) 21 24 Is that going to be an (Juror leaves.) 16 17 You indicated in Good morning, sir. Good morning. Just following up on your answer to my question about your membership in the NRA. PROSPECTIVE JUROR: Oh, I do read the newsletter. My Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 3 of 41 90 1 father is a member, but I'm not a member. 2 THE COURT: 3 PROSPECTIVE JUROR: 4 5 Oh, okay. So I read the newsletter, but I'm not a member. THE COURT: Well, okay. Is there any -- obviously you 6 have an interest in the goals and the position of the National 7 Rifle Association as it pertains to the right to bear arms or 8 the -- or gun control, one way or the other. 9 one of the coin, side of the coin, right? 10 PROSPECTIVE JUROR: 11 THE COURT: Okay. I'm impartial. Which -- either I'm down the middle. So do you have -- have the opinion 12 that -- that this requirement that when a person buys a gun, 13 that that's government intruding -- the requirement that a 14 person who's buying a gun declare that he is buying the gun for 15 himself, do you have an opinion about whether that's too much 16 restriction on the right to bear arms? 17 PROSPECTIVE JUROR: 18 THE COURT: Okay. I do not have an opinion on that. Would you then be able to follow the 19 instruction if the Court tells you that this is what the law is, 20 that, you know, a person -- that it's a crime for someone to 21 make a false statement regarding anything to do with that form, 22 would you be -- would your interest in the NRA publication 23 influence you in any way in the decision you'd be asked to make 24 about those charges? 25 PROSPECTIVE JUROR: No, it would not influence me. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 4 of 41 91 1 2 THE COURT: Would you be then able to render a verdict based upon the law and the evidence? 3 PROSPECTIVE JUROR: 4 THE COURT: 5 Thank you, sir. (Juror leaves.) 6 THE COURT: 7 MARSHAL: 8 THE COURT: 9 Is No. 29 available? Yes, Your Honor. Tell me again, what was the -- because they know Jody Young or something? 10 Okay. No. 29. (Juror present.) 11 THE COURT: 12 PROSPECTIVE JUROR: 13 THE COURT: 14 Yes, ma'am. Good morning, madam. Good morning. You've indicated that you know Mr. Young because he was your neighbor, I guess, or -- 15 PROSPECTIVE JUROR: 16 THE COURT: 17 PROSPECTIVE JUROR: He was my former neighbor. Okay. And it's been several -- several 18 year since he's lived in the neighborhood. 19 on. 20 21 THE COURT: Yes, I understand. He has since moved As a matter of fact, I live in your neighborhood too. 22 PROSPECTIVE JUROR: 23 THE COURT: 24 PROSPECTIVE JUROR: 25 THE COURT: You do? Yes, I do. Neighbors? Well, I know you now. You know me or you don't. I live on -- not Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 5 of 41 92 1 Sunset. 2 PROSPECTIVE JUROR: 3 THE COURT: 4 No. Poinsettia Place. Anyway, did Mr. Young ever discuss his work with you? 5 6 Acacia? PROSPECTIVE JUROR: Oh, just in general. Nothing specific. 7 THE COURT: All right. Is the fact that you knew him as 8 a neighbor, would that influence you in any way in the decision 9 you'd be asked to make in this case? 10 PROSPECTIVE JUROR: 11 THE COURT: 12 Is the fact that we're neighbors going to influence you in any way in the decision you'd be asked to make? 13 PROSPECTIVE JUROR: 14 THE COURT: 15 PROSPECTIVE JUROR: 16 THE COURT: 17 THE COURT: 19 COURT CLERK: 23 24 25 You have to answer. I'm sorry. No, ma'am. Thank you, madam. Okay. No. 31. She had a response to the right to bear arms, Your Honor. 21 22 No. (Juror leaves.) 18 20 No, I don't -- THE COURT: Is that the lady in the far corner over here? COURT CLERK: She has a doctor's appointment at 2:30 tomorrow. THE COURT: Okay. Well, I'm going to excuse her for Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 6 of 41 93 1 that reason. 2 because of the doctor's appointment. 3 she doesn't have to come in for individual voir dire. 4 She has a doctor's appointment. She's excused So you can inform her that No. 38? 5 COURT CLERK: The response on the questionnaire, Your 6 Honor, said that the juror has arthritis in the knee and needs 7 to move around every two hours. 8 9 THE COURT: All right. (Juror present.) 10 THE COURT: 11 PROSPECTIVE JUROR: 12 THE COURT: 13 No. 38. Good morning, madam. Good morning. You've indicated on your form that you need to stand or move every couple hours? 14 PROSPECTIVE JUROR: 15 THE COURT: Okay. Yes. I have arthritis in my knee. I hear that. I got it in both as 16 well. 17 the corner, you'd be able to stand up and stretch your legs any 18 time you want. 19 20 21 22 If you were to be on the jury and we'd place you up in PROSPECTIVE JUROR: That would be great. great. THE COURT: All right. So if we made that accommodation, would that be a problem for you? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 PROSPECTIVE JUROR: No, it wouldn't be. Thank you, madam. Okay. That would be Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 7 of 41 94 1 (Juror leaves.) 2 THE COURT: Okay. I don't think we have to go any 3 further than that, but let's just make sure that we've got 4 everybody accounted for that have either been challenged for 5 cause that I've sustained or that have been excused. 6 So, Stella, can you go through the list, please. 7 COURT CLERK: Yes, Your Honor. No. 7, No. 23, No. 24, 8 No. 31, No. 34, No. 36, No. 39. 9 No. 50, 59 and 60 were also challenged for cause. 10 And then earlier, Judge, THE COURT: Okay. 12 MR. PONCE: Government is, Your Honor. 13 THE COURT: Mr. Gamez? 14 MR. GAMEZ: Fine, Judge. 15 THE COURT: All right then. 11 Everybody is in agreement about those numbers? We don't -- we won't go any 16 further to voir dire 44 or 45 or -- yeah, the remaining. 17 Anyway, so with those being either excused or challenge for 18 cause sustained, I'll now ask that you submit your strikes, ten 19 for the defendant, six for the government, and one each for the 20 alternate. 21 exercise your strike for the alternate. The clerk will show you the cutoff for where you 22 Thank you. Please hand your strike to the clerk as soon as 23 you complete them. 24 (Recess taken from 11:35 to 12:00.) 25 (Jury panel present in courtroom.) Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 8 of 41 95 1 2 THE COURT: All right. Thank you. Please be seated. Members of the jury, the clerk will now call the 3 numbers of those of you who have been selected to be on the 4 jury. 5 for, and then I'll give you further instructions. Please stand up so that we know that you are accounted 6 COURT CLERK: 7 THE COURT: 8 COURT CLERK: No. 5, No. 8, No. 11, No. 17, No. 19, No. 25, No. 27, No. 28, No. 30, No. 32, No. 33, and No. 37. 11 12 If you'll stand, please, so that we know that you're here. 9 10 No. 2, No. 3 -- THE COURT: All right. Thank you. You may be seated. Those of you whose numbers were not called -- have a seat. 13 Those of you whose numbers were not called, this ends your jury 14 service obligation, so you don't have to call in or call back or 15 report back. 16 the jury selection process. 17 selected, your presence made it possible for the administration 18 of justice to go forward. 19 and your patience during the process. 20 But I want to thank you for your attention during Even though you've not been So I really appreciate your attention If your number was called, you're going to be reporting back 21 at 1:30. 22 then you'll hear instructions and then opening statements by the 23 attorneys. 24 of that is completed. 25 At 1:30 we will administer the oath as jurors, and So we'll be starting the evidence sometime after all So if you've been selected on the jury, please don't talk Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 9 of 41 96 1 about it, the case, I mean, the little that you know of so far 2 with your -- amongst yourselves or with anyone else. 3 want for someone to say something to you that could influence 4 your ability to be on this jury, so it's -- the less said the 5 best said is a good rule of thumb. 6 So if your number was called, please, we'll see you at 1:30. 7 And everyone else, again, have a good day. 8 so much for your participation. 9 10 I don't And again, thank you You're in recess. (Jury panel leaves.) THE COURT: All right. Counsel, before we start in the 11 afternoon, I want to make sure that y'all have conferred and 12 please identify all exhibits to which there is no objection by 13 either the government or the defense. 14 will make an offer of those exhibits after you've made your 15 opening statements. 16 And I expect that you If there is an exhibit that there is an objection to that 17 will be taken up or will be used by a witness the government 18 would be calling sometime this afternoon, please identify that 19 exhibit so that I can also hear objections before we start the 20 evidence. 21 So I want for you to give me the -- to offer only exhibits 22 to which there is no objection. If there is a Government 23 exhibit, Mr. Gamez, that you have an objection to, that will be 24 an exhibit that the government proposes to use with a witness it 25 will be calling this afternoon, I want to hear that objection Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 10 of 41 97 1 before we start the flow of the evidence this afternoon, before 2 we hear the opening statement, or before I give the preliminary 3 instructions. 4 Thank you. MS. BETANCOURT: Your Honor, I'm sorry. I wanted to, if 5 I may, clarify that based on the Court's ruling from this 6 morning about the involvement of the Immigration and Customs 7 Enforcement Office of Professional Responsibility. 8 government's testimony will be that these agents -- that Agent 9 Deans, when he testifies, he'll be the first OPR gentleman to The 10 testify. 11 involvement was because of the sheer fact that the defendant is 12 a Customs officer; and therefore, his agency would get involved 13 and no other testimony. 14 15 THE COURT: All right. Thank you. (Recess taken from 12:06 to 1:35.) 16 17 That when he testifies that he works for OPR and his THE COURT: All right. Good afternoon. Please be seated. Having been advised that there's only objections 18 to two government exhibits, I'll consider the offer of the 19 exhibits of the government except for 24 and 25 at this point in 20 time. 21 22 23 24 25 MR. PONCE: That -- would the Court want us to make the offer now or after closing -THE COURT: Well, I tell you what. when you finish your opening statements. MR. PONCE: Yes, Your Honor. We can wait until Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 11 of 41 98 1 THE COURT: And, Mr. Gamez, are you going to address the 2 jury with an opening statement at this point in time, or are you 3 going to reserve it when you present your case in chief? 4 MR. GAMEZ: I'd like to do it at this point in time, 6 THE COURT: All right. 7 MS. BETANCOURT: 5 8 Judge. Then please bring in the jury. Your Honor, and I'll be delivering the opening statement for the government. 9 THE COURT: Thank you. And I will be having the 10 witnesses who are here sworn in one fell swoop as well after the 11 offer of evidence. 12 Mr. Gamez, do you have your witnesses? 13 MR. GAMEZ: They're outside, Judge. 14 THE COURT: All right. So if you want to have someone 15 advise them that at some point in time in the next 20 minutes, 16 they'll be -- they'll be required to come in so that they can be 17 sworn and placed under the rule. 18 MR. GAMEZ: 19 there. 20 rest. 21 Yes, Judge. We have one, just one out And not until Tuesday or Wednesday we'll -- until they THE COURT: And just so you know, my preference is to 22 have them all assembled whenever you -- when your case in chief 23 is ready to start, have them all sworn in and placed under the 24 rule. 25 MR. GAMEZ: Yes, Judge. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 12 of 41 99 1 (Jury enters courtroom) 2 3 4 THE COURT: Good afternoon, ladies and gentlemen. Please be seated. All right. Actually I was kind of conflicted because I tell 5 you to sit down, and I'm getting ready to tell you to stand up. 6 The next order of business will be for you to be administered 7 the oath, so I now ask you to please stand and raise your right 8 hand. 9 (Jury sworn.) 10 THE COURT: Thank you. Please be seated. 11 Members of the jury, you are now the jury in this case, and 12 so now I want to take a few minutes to tell you something about 13 your duties as jurors and to give you some instructions. 14 end of the trial, I will give you more detailed instructions. 15 You must follow all of my instructions in doing your job as 16 jurors. 17 At the This criminal case has been brought by the United States 18 Government. 19 prosecution. 20 represented by two Assistant United States Attorneys, those 21 being Mr. Oscar Ponce and Ms. Karen Betancourt, who were 22 introduced to you earlier. 23 is represented by Mr. Ernesto Gamez. 24 gentlemen who are now standing. 25 I may sometimes refer to the government as the You may recall that the government in this case is The defendant, Manuel Eduardo Pena, And those are the Thank you. The defendant has been charged by the government with Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 13 of 41100 1 criminal violations of federal law; that is, two counts of 2 making a false statement in a firearm record, and the third 3 count being making of a false statement or representation to a 4 department or agency of the United States. 5 the defendant are contained in the indictment. 6 The charges against The indictment is simply the description of the charges made 7 by the government against the defendant, but is not evidence 8 that the defendant committed a crime. 9 not guilty to the charges. The defendant has pleaded The defendant is presumed innocent 10 and may not be found guilty by you unless all 12 of you on the 11 jury unanimously find that the government has proved the 12 defendant's guilt beyond a reasonable doubt. 13 The first step in the trial will be the opening statements. 14 The government in its opening statement will tell you about the 15 evidence which it intends to put before you so that you will 16 have an idea of what the government's case is going to be. 17 Just as the indictment is not evidence, neither is the 18 opening statement evidence. 19 understand what the evidence will be and what the government 20 will try to prove. 21 Its purpose is only to help you After the government's opening statement, the defendant's 22 attorney may make an opening statement. 23 trial, no evidence will have been offered by either side. 24 25 At this point in the Next the government will offer evidence that it claims will support the charges against the defendant. The government's Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 14 of 41101 1 evidence may consist of testimony of witnesses as well as 2 documents and exhibits. 3 term circumstantial evidence and direct evidence. 4 concerned with these terms. 5 evidence given in this trial. 6 Some of you have probably heard the Do not be You are to consider all the After the government's evidence, the defendant's lawyer may 7 present evidence on the defendant's behalf, but he is not 8 required to do so. 9 innocent, and that the government must prove the defendant's I remind you that the defendant is presumed 10 guilt beyond a reasonable doubt. 11 defendant does not have to prove his innocence. 12 defendant decides to present evidence, the government -- 13 government may introduce rebuttal evidence. 14 heard all the evidence on both sides, I will instruct you on the 15 rules of law which you are to use in reaching your verdict. 16 The government -- the If the After you have The final part of the trial occurs when the government and 17 the defense are given time for their closing arguments. 18 told you that the opening statements by the lawyers are not 19 evidence. 20 evidence either, but you should pay close attention to them. 21 The same applies to closing arguments. They are not After hearing closing arguments, you will leave the 22 courtroom together to make your decision. 23 will be secret. 24 anyone. 25 I just Your deliberations You will never have to explain your verdict to Now that I've described the trial itself, let me explain the Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 15 of 41102 1 jobs that you and I are to perform during the trial. 2 decide which rules of law apply to this case in response to 3 questions or objections raised by the attorneys as we go along 4 and also in the final instructions given to you after the 5 evidence is completed. 6 to you whether you agree with it or not. 7 I will You must follow the law as I explain it You and you alone are the judges of the facts; therefore, 8 you should give careful attention to the testimony and exhibits, 9 because based upon this evidence, you will decide whether the 10 government has proved beyond a reasonable doubt that the 11 defendant has committed the crimes charged in the indictment. 12 You must base that decision only on the evidence in this case 13 and my instructions on the law. 14 You will have the exhibits that have been admitted with you 15 when you deliberate. If you would like to take notes during the 16 trial, you may do so. 17 to take notes if you prefer not to do so. 18 make your own decision about this. 19 notes, be careful not to get so involved in note taking that you 20 become distracted from the ongoing proceedings. 21 should be used only as memory aids. 22 notes precedence over your independent recollection of the 23 evidence. 24 own independent recollection of the proceedings, and you should 25 not be unduly influenced by the notes of other jurors. On the other hand, you are not required Each of you should If you do decide to take Your notes You should not give your If you do not take notes, you should rely upon your Notes Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 16 of 41103 1 are not entitled to any greater weight than the memory or 2 impression of each juror as to what the testimony may have been. 3 Whether you take notes or not, each of you must form and express 4 your own opinion as to the facts of the case. 5 You will note that we do have an official court reporter 6 making a record of the trial. However, we will not have 7 typewritten transcripts of this record available for your use in 8 reaching a decision in this case. 9 decide which witness to believe, which witnesses not to believe, It will be up to you to 10 and how much of any witness' testimony to accept or reject. 11 will give you some guidelines for determining the credibility of 12 witnesses at the end of the case. 13 I The defendant is charged with two counts of making a false 14 statement in a firearm record and one count of making a false 15 statement or representation to a department or agency of the 16 United States. 17 at the end of the case, and those instructions will control your 18 deliberations and decision. 19 evidence, I will now give you a brief summary of the elements of 20 the offenses which the government must prove to make its case. 21 I will give you detailed instructions on the law But in order to help you follow the Title 18, United States Code, Section 924(a)(1)(A) makes it 22 a crime to make a false statement in a record that federal law 23 requires a licensed firearms dealer to keep. 24 requires a licensed firearms dealer to maintain a United States 25 Department of Justice Bureau of Alcohol, Tobacco, Firearms and Federal law Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 17 of 41104 1 Explosives Form 4473, otherwise known as a firearms transaction 2 record. 3 beyond a reasonable doubt before a defendant can be found guilty 4 of the crime. 5 The government has to prove each of the following First, that the defendant made a false statement or 6 representation in the U.S. Department of Justice Bureau of 7 Alcohol, Tobacco, Firearms and Explosives Form 4473, firearms 8 transaction record, to a federally licensed firearms dealer. 9 10 11 And second, that the defendant knew that the statement or representation was false. An entry in a record is false if it was untrue when made and 12 the person making it knew it was untrue. 13 18, United States Code, Section 1001 makes it a crime for anyone 14 knowingly and willfully to make a false or fraudulent statement 15 in any matter within the jurisdiction of the executive, 16 legislative or judicial branch of the government of the United 17 States. 18 beyond a reasonable doubt before a defendant can be found guilty 19 of the crime. 20 Additionally, Title The government has to prove each of the following First, that the defendant made a false statement to the 21 Federal Bureau of Investigation regarding a matter within its 22 jurisdiction. 23 24 25 Second, that the defendant made the statement intentionally, knowing it was false. Third, that the statement was material. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 18 of 41105 1 2 3 And fourth, that the defendant made the false statement for the purpose of misleading the Federal Bureau of Investigation. A statement is material if it has a natural tendency to 4 influence or is capable of influencing a decision of the Federal 5 Bureau of Investigation. 6 Federal Bureau of Investigation was, in fact, misled. 7 It is not necessary to show that the During the course of the trial, do not talk with any witness 8 or with the defendant or with any of the lawyers in the case. 9 Please do not talk with them about any subject at all. You may 10 be unaware of the identity of everyone connected with the case. 11 Therefore, in order to avoid even the appearance of impropriety, 12 do not engage in conversation with anyone in or about the 13 courtroom or courthouse. 14 room during the breaks in the trial and not linger in the halls. 15 In addition, during the course of the trial, do not talk about 16 the trial with anyone else: 17 and not the people with whom you work. It is best that you remain in the jury Not your family, not your friends, 18 Also do not discuss this case among yourselves until I have 19 instructed you on the law and you have gone to the jury room to 20 make your decision at the end of the trial. 21 realizing it, you may start forming opinions before the trial is 22 over. Otherwise, without 23 It is important that you wait until all the evidence is 24 received and you have heard my instructions on rules of law 25 before you deliberate among yourselves. You as jurors must Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 19 of 41106 1 decide this case based solely on the evidence presented here 2 within the four walls of this courtroom. 3 the trial, you must not conduct any independent research about 4 the case, the matters in the case, and the individuals or 5 corporations involved in the case. 6 not consult dictionaries or reference materials, search the 7 Internet, websites, blogs, or use any other electronic tools to 8 obtain information about this case or to help you decide the 9 case. 10 This means that during In other words, you should Please do not try to find any information from any source outside the confines of this courtroom. 11 Until you retire to deliberate, you may not discuss this 12 case with anyone, even your fellow jurors. 13 deliberate, you may begin discussion -- discussing the case with 14 your fellow jurors, but you cannot discuss this case with anyone 15 else until you have returned a verdict and the case is at an 16 end. 17 After you retire to I know that many of you use cell phones, Blackberries, the 18 Internet and other tools of technology. You must not talk to 19 anyone about this case or use these tools to communicate 20 electronically with anyone about the case. 21 family and friends. 22 the case on your cell phone, through email, Blackberry, Iphone, 23 text messaging or on Twitter, through any blog or website, 24 including Facebook, Google, My Space, Linked In or Utube. 25 may not use any similar technology of social media -- or social This includes your You may not communicate with anyone about You Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 20 of 41107 1 media even if I have not specifically mentioned it here. 2 expect you will inform me as soon as you become aware of another 3 juror's violation of these instructions. 4 you, this case is interesting and noteworthy. 5 I I hope that for all of Now that the trial has begun, you must also not read about 6 it in newspapers or watch or listen to television or radio 7 reports of what is happening here. 8 as I am certain you will understand, is that your decision must 9 be made solely on the evidence presented at trial. The reason for these rules, 10 At times during the trial, a lawyer may make an objection to 11 a question asked by another lawyer or to an answer by a witness. 12 This simply means that the lawyer is requesting that I make a 13 decision on a particular rule of law. 14 conclusion from such objections or my rulings on the objections. 15 These relate only to the legal questions that I must determine 16 and should not influence your thinking. 17 Do not draw any If I sustain an objection to a question, the witness may not 18 answer it. 19 given had I allowed the question to be answered. 20 Do not attempt to guess what answer might have been Similarly, if I tell you not to consider a particular 21 statement, you should put that statement out of your mind, and 22 you may not refer to that statement in your later deliberations. 23 If an objection is overruled, treat the answer like any other. 24 25 During the course of the trial, I may ask a question of a witness. If I do, that does not indicate that I have any Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 21 of 41108 1 opinion about the facts in the case. 2 lead you to believe that I have any opinion about the facts, nor 3 be taken as indicating what your verdict should be. 4 Nothing I say or do should During the trial, I may have to interrupt the proceedings to 5 confer with the attorneys about the rules of law which should 6 apply here. 7 some of these conferences may take time, so as a convenience to 8 you, I may excuse you from the courtroom. 9 such interruptions as much as possible and will try to keep them Sometimes we will talk here at the bench. However, I will try to avoid 10 short, but please be patient even if the trial seems to be 11 moving slowly, because conferences outside your presence are 12 sometimes unavoidable. 13 Finally, there are some basic rules about a criminal case 14 which you should keep in mind. 15 innocent until proven guilty. 16 defendant brought by the government is only an accusation, 17 nothing more. 18 defendant, therefore, starts out with a clean slate. 19 First, the defendant is presumed The indictment against the It is not proof of guilt or anything else. The Second, the burden of proof is on the government until the 20 very end of the case. 21 innocence or to present any evidence or to testify. 22 defendant has the right to remain silent, the law prohibits you 23 in arriving at your verdict from considering that the defendant 24 may not have testified. 25 The defendant has no burden to prove his Since the Third, the government must prove the defendant's guilt Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 22 of 41109 1 beyond a reasonable doubt. 2 on this point later; but bear in mind that in this respect, a 3 criminal case is different from a civil case. 4 I will give you further instructions Fourth, a separate crime is charged against the defendant in 5 each count of the indictment. Each count and the evidence 6 pertaining to it should be considered separately. 7 I thank you in advance for your attention. 8 All right. 9 10 11 12 13 14 15 16 Mr. Ponce, would you please make your opening statement. MR. PONCE: Your Honor, ask for permission to allow Ms. Betancourt to make the opening statement. THE COURT: All right. You may address the jury, Ms. Betancourt. MS. BETANCOURT: Thank you, Your Honor. May it please the Court, Mr. Gamez. Good afternoon, ladies and gentlemen. In this opening 17 statement, I'm going to go over with you two things: 18 can expect from this trial, how it's going to work, and what we, 19 the government, expects the evidence to show you in this case. 20 What you What we expect the evidence to show is that a person really 21 can be at the right place at the wrong time. What we expect the 22 evidence to show is that on December the 5th of 2011, there were 23 some agents from the Department of Homeland Security 24 Investigations from a unit called the BEST unit. 25 officers do is they conduct investigations to firearms And what these Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 23 of 41110 1 transactions, illegal firearms transactions. 2 things they do is conduct surveillance at the local sporting 3 goods stores that sell firearms. 4 And one of the They were at the Academy here in Brownsville, the one right 5 off of 77. While there, doing surveillance on a completely 6 unrelated matter, an agent by the name of Gus Gonzalez sees 7 someone that he knows, sees someone that he recognizes, because 8 many years ago, the two of them worked together when they were 9 Customs officers over at the bridge. Agent Gonzalez has since 10 then moved on and now works for HSI, Homeland Security 11 Investigation agency. 12 recognized, the defendant, Manuel Pena, a current Customs bridge 13 inspector. 14 And the person whom he saw that he He doesn't call any attention to him. Doesn't go over and 15 greet him. 16 Mr. Gonzalez, he's there on surveillance. Sees the defendant 17 conduct a firearm transaction, buy a gun. Mr. Gonzalez goes 18 about his regular surveilling business. 19 leave the store. 20 Doesn't go over and talk to him because He leaves the store. He's getting ready to And as he's on his way to his car, he 21 sees something that does catch his attention. And what we 22 expect the evidence to show is what he saw was this defendant, 23 Manuel Pena, take the firearm that he had bought and place it in 24 the bed of a truck. 25 caught Mr. -- Agent Gonzalez's attention, because he knows from But he didn't get in the truck. And that Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 24 of 41111 1 his work as an investigator into these very kinds of crimes that 2 you have to be the actual purchaser of a firearm. 3 the law says. 4 law the judge just instructed you on says. 5 That's what That's what the rule says, and that's what the He sees instead a third party that he doesn't know, that he 6 doesn't recognize come up to the defendant. 7 exchange, talking, some movement of the hands, and that third 8 party takes the truck with the gun and drives away. 9 There's an Agent Gonzalez thinks he may have just seen a straw 10 purchase. 11 who's not in the store and not around this transaction and says: 12 I think I saw something suspicious. 13 out. 14 He's concerned, calls in to his partner, Omar Garza, We might want to check it Agent Gonzalez, he's there conducting the surveillance, 15 again on a completely unrelated matter. 16 the very right place at the very right time to see an offense 17 committed in front of him. 18 opportunity to take a few pictures because he was suspicious. 19 And from those pictures he was able to get a partial plate of 20 the vehicle that drove away with the gun with an unknown third 21 party that did not purchase the gun. 22 Just happens to be in Gets out his camera and has an They take some time to figure out who that vehicle belongs 23 to, and they find it. Using the technology they have to run 24 license plates, they were able to identify that it came back to 25 an individual by the name of Sergio Gonzalez. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 25 of 41112 1 What we expect the evidence to show is they got the address 2 for Sergio Gonzalez, The Borders Apartment here in Brownsville. 3 Went over there, saw the Colorado, white Colorado pickup truck 4 that had the gun in it. 5 they see, two men, a younger man and an older man standing on a 6 balcony of the apartment they were given as the address for that 7 person who drove away with the gun, Sergio Gonzalez, and they 8 are pointing, aiming, sighting in a firearm, a rifle, a hunting 9 rifle like the one that Gus Gonzalez, Agent Gonzalez had seen 10 And when the agents get there, what put in that truck. 11 At that point in time, they refer to some other agents. 12 Some other agents get involved based on what they've seen, and 13 they make a decision that they're going to approach that third 14 party. 15 we really see what we thought we just saw? 16 They're going to try and find out what's going on. Did What we expect the evidence to show you is that the next 17 day, December the 6th, officers from the Brownsville Police 18 Department, the Federal Bureau of Investigation, the Department 19 of Immigration and Customs Enforcement knock on that door. 20 the person who greets them is Sergio Gonzalez. 21 in. 22 he answers their questions. He's cooperative. And He invites them He allows them to come in his home, and 23 What we expect the evidence to show is that first he's a 24 little hesitant, he's a little nervous, he's a little concerned, 25 but he eventually tells them and admits to them that he can't Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 26 of 41113 1 buy a gun. 2 rules in 2011 in December when he wanted this gun, they stated 3 that if a lawful permanent resident is going to purchase a 4 firearm, what we expect the evidence to show is that person has 5 to present 90 days worth of residency. 6 worth of utility bills. 7 utilities in his name. 8 buy a gun. 9 He's a lawful person, a permanent resident. Traditionally 90 days But the problem is he doesn't have the They're all in his wife's. So he can't So what we expect the evidence to show is that Mr. Gonzalez 10 asked his friend for a favor. 11 him the gun. 12 upcoming weekend in December. 13 it for his son so he could go hunting. 14 And the That friend, Manuel Pena, to buy They wanted the gun so they could go hunting in an In the upcoming weekend he wanted At that point in time, Mr. Gonzalez shows them the gun. 15 has it there. 16 Gives him the box. 17 Yes, I paid Mr. Pena to go buy that gun for me. 18 money. 19 that we had was that I was always going to be the person that 20 bought the gun. 21 just doing me a favor because I can't do it. 22 on the paperwork. 23 Still in the box. He There in the living room. Gives them the receipt. He bought me the gun. Tells the agents: I paid him for it. Gave him the The intention He was not going to be that person. He was I can't sign off At that point in time, Mr. Gonzalez agrees to cooperate with 24 the Federal Bureau of Investigation, Immigration and Customs 25 Enforcement agents, the people investigating this offense. And Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 27 of 41114 1 asks Mr. Pena again: 2 my other son. 3 he says yes, he will. 4 I got it. I want to get another gun for Will you go and will you buy the gun for me? So again, he meets Mr. Gonzalez at the Academy on 5 December 19th of 2011. 6 Immigration and Customs Enforcement are watching again as 7 planned. 8 buys a gun, comes back out and hands it to Mr. Gonzalez. 9 Mr. Gonzalez hands the gun to the FBI. 10 And This time agents from the FBI and Mr. Gonzalez gives the cash to Mr. Pena. He goes in, What we expect the evidence to show, and, ladies and 11 gentlemen, what you'll see is you'll not just hear from the 12 witnesses, but you'll also see the evidence. 13 pieces of evidence you will see is going to be a form. 14 you're going to hear most of the witnesses refer to it as a Form 15 4473. 16 Alcohol, Tobacco, Firearm and Explosive Bureau form. 17 the document you have to fill out to purchase a gun anywhere in 18 the United States. 19 and it's the form that any person who sells a firearm anywhere 20 in the United States as a federally licensed firearms dealer has 21 to fill out and keep. 22 It's a government form. And one of the And And what it is, is it's an That is It follows the laws that Congress has set, And on that Form 4473, there's an important question. It's 23 Question 11A. And what we expect the evidence to show is that 24 question asks you, are you the actual purchaser of this firearm? 25 That's an ATF regulation. You have to answer that question. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 28 of 41115 1 You either check yes or you check no. And, in fact, 2 parenthetically in the question itself, what we expect the 3 evidence to show through that Form 4473, it asks if you are not 4 the actual purchaser of this firearm, then you cannot answer 5 that question yes. 6 fact, have committed a crime. 7 statement in a firearms record. 8 which the defendant is being accused, two counts of that. 9 for December the 5th, one for December the 19th. And if you lie on that form, then you, in That is the law of making a false That is the law violation for One When he 10 answered that question yes, I'm the actual purchaser, even 11 though it clearly says if it's not for you, you can't say yes, 12 what we expect the evidence to show is on the forms that the 13 agents collected, both on December the 5th and on December 14 the 19th, he answered yes to those questions when, in fact, that 15 was a lie because the guns were purchased for Sergio Gonzalez. 16 And how do we know that? We know that, ladies and 17 gentlemen, we expect the evidence to show, again, not just from 18 what the agents show, but you will hear from Sergio Gonzalez, 19 and he will tell you that I did, in fact, ask my friend to do me 20 a favor. 21 A costly favor, a favor nonetheless. And what you will -- the other thing, ladies and gentlemen, 22 that you'll hear is that, in fact, the guns were for the 23 purposes of going deer hunting. 24 that. 25 lease. Mr. Gonzalez will tell you They were for him and his sons to use as part of a deer In fact, you'll probably hear a lot about deer hunting. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 29 of 41116 1 He and the defendant and a whole group of the defendant's 2 family, they all hunt together. 3 But the fact of the matter is, ladies and gentlemen, the 4 crime is committed the minute he lied on that form. 5 happens to the guns thereafter? 6 was going to use them, a lie was committed once he said he was 7 buying it for himself when, in fact, he went there with the 8 intent to buy it for Sergio Gonzalez. 9 And what What the intentions were or who Ladies and gentlemen, you'll also hear that the defendant, 10 upon his arrest on May the 24th of 2012, was asked by the 11 Federal Bureau of Investigation if he wanted to talk about what 12 happened in those transactions. 13 on his waiver saying I understand that I have rights and I don't 14 have to talk to you, but agreed to willingly talk to the Federal 15 Bureau of Investigation. 16 witness also, Shaun Owen. 17 He agreed to do so, signed off In fact, you will hear from that And what he told the agents on that day, May the 24th, the 18 day that he was arrested, he said, yeah, I bought those guns. 19 Bought them for me. 20 lease. 21 I left them with Sergio. 22 the evidence to show is that both of those guns were in the 23 FBI's possession on December the 6th, the very next day after 24 the sale, and on December 19th, within minutes of the sale being 25 concluded were in possession with the FBI and were never, ever, In fact, I even took them to the deer I shot them a couple of times, sighted them in, and then Again, a lie. Because what we expect Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 30 of 41117 1 2 ever used, taken anywhere, or given to anyone by the defendant. Ladies and gentlemen, as I said, you'll hear from the 3 witnesses. 4 trial works. 5 witness stand, and you will hear from the agents that were there 6 at the Academy that first day, Agent Gonzalez and Agent Omar 7 Garza. 8 Sergio Gonzalez on December the 6th, Albert Torriz from the FBI 9 and Michael Deans from Immigration and Customs Enforcement, 10 Shaun Owen from the FBI, as well as you'll hear from Sergio 11 Gonzalez, the person who asked the favor of this defendant. 12 you'll also hear from the other investigators from the Customs 13 Enforcement that were there watching these transactions on 14 December the 19th, Raul Garcia, Thomas Morrisey. 15 final witness you'll hear from will be Shaun Owen. 16 hear him tell you about the lies the defendant told not only at 17 the Academy because he lied on the form, but the lie that he 18 told the Federal Bureau of Investigation. 19 You'll hear from the BEST agents. The witnesses will come. That's how this They'll sit at the You'll hear from the agents that knocked on the door of And And again, the You will Again, another law that we have under United States Code, 20 what we expect the evidence to show and what the judge just 21 briefly read to you on, is that if you're willingly talking to a 22 federal agency about an investigation, you have to be truthful. 23 If they are asking you a material question connected to the 24 investigation, did you buy those guns, you have to give a 25 truthful answer. And if you lie to a federal agent, that is a Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 31 of 41118 1 2 crime. Now, ladies and gentlemen, some of the things that you won't 3 be hearing is -- what we expect the evidence to show is 4 unfortunately, you won't be seeing the Academy video from these 5 Academy transactions. 6 agents tried to capture that video and were unable to do so. 7 Tried to capture some audio. 8 it may not. 9 evidence or what you will see from photographs taken the day of 10 the first transaction by Gus Gonzalez when he quickly grabs his 11 camera and catches the transaction. 12 the second transaction with the defendant leaving with the gun, 13 handing it over to Sergio Gonzalez. 14 of the guns and their serial numbers and makes. 15 Remington hunting rifles, exactly what they were, exactly what 16 Mr. Gonzalez had asked the defendant to buy, hunting rifles. 17 What we expect you to hear is that the Some of it may be audible, some of But what you will see and what you will hear in the You'll see some video of And you'll see photographs These are At the end of this trial, ladies and gentlemen, you'll take 18 all the evidence that you'll hear from the witness stand, 19 everything that you're able to view, all of the exhibits, you'll 20 take up the law that the judge will instruct you on about the 21 crimes of committing a -- making a false statement in a firearms 22 transaction, making a false representation to a federal agent. 23 And then use your common sense. 24 the end of this trial, we will ask you to find the defendant 25 guilty of all three of those offenses. And, ladies and gentlemen, at Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 32 of 41119 1 THE COURT: Mr. Gamez, you may address the jury. 2 MR. GAMEZ: Ladies and gentlemen, Mr. Pena is a CBPO. 3 THE COURT: I'm sorry, Mr. Gamez, I can't hear you. 4 MR. GAMEZ: Mr. Pena is a Customs and Border Protection 5 officer. 6 family and Mr. Sergio Gonzalez, who I believe the evidence will 7 show, is an individual who was part of this alleged crime, could 8 be considered what the Court calls and what we call an 9 unindicted co-conspirator. 10 Mr. Pena understands that form. Mr. Pena and his He was as a partner in a deer lease for some three to four 11 years. 12 know and admit to a deer lease. 13 has to split expenses. 14 doing so, some guys spend money. 15 as the government said, their part, their evidence is going to 16 show. 17 money on the blind. 18 Others -- and those who may not know, that do not know how this 19 deer lease goes, others will buy corn, others will split gas, 20 others will spend to buy a trailer, all right? 21 go on and on. 22 In this deer lease, people get together with those who Everybody pitches in. Everyone has to do their part. Everyone And in The evidence is going to show, Our part is going to be, well, someone will buy and spend Others will buy feeders to feed deer. And at times one guy will say: And the expenses Okay, we're short on rifles. 23 The evidence is going to show: I'll buy the rifles. And here's 24 a guy, the evidence will show, Sergio, who didn't have a lot of 25 money. The evidence is going to show that my client bought Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 33 of 41120 1 that. 2 goes to the counter with Sergio. 3 show that he's there together purchasing this firearm with the 4 guy right next to him, Sergio Gonzalez. 5 one of these cheapy -- the evidence is going to show you can buy 6 firearms for a couple of hundred dollars to thousands of 7 dollars. 8 it's a mid expense firearm. 9 it's a low expense firearm because these guys just don't make a 10 The evidence is going to show he didn't hide Sergio. He And the evidence is going to And in doing so, it's The evidence may be argued and it's contested that But the evidence is going to show lot of money. 11 So the evidence is going to show on the part of Sergio, who 12 was not a resident, because he's used by the government, the 13 evidence is going to show, his portion was that part of the 14 rifle. 15 belong to you because the evidence is going to show if you buy 16 it, then you get to keep it. 17 if you get to keep it, that means it doesn't belong to Manuel 18 Pena. 19 ranch or the lease. 20 But the evidence is going to show the rifle doesn't And the evidence is going to show That means you actually put nothing in your part of the So the evidence is going to show Manuel bought it, and he's 21 not denying he bought it, all right? The evidence is going to 22 show he didn't go hide it outside. 23 it. 24 contribution to the ranch. 25 evidence is going to show everyone could use that firearm, like He gave him the money for And that the evidence is going to show that that was his It belonged to Mario, (sic) and the Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 34 of 41121 1 many times those who have been in a hunting lease do. 2 belongs to one person, but everyone can use that firearm. 3 a firearm that all use in any ranch or a deer lease or a hunting 4 of quail or shotguns or 270s or 243s. 5 It It's The evidence is going to show that he bought this rifle on 6 December the 5th. 7 thereafter, they speak, as the government or FBI agent or 8 others, get ahold of Sergio and determine that he's a resident 9 alien. 10 The evidence is going to show soon Now, think about that. The evidence is going to show guess 11 what? 12 purchasing a firearm. 13 client knows, hey, you can buy this weapon. 14 your personal problems, all right, about changing an address. 15 The evidence is going to show that Sergio owned a house at that 16 time with an address that he purchased, and he lived in the same 17 apartments for years. 18 in his wife's name, his buddy's name, the evidence is going to 19 show that Sergio is lying. 20 determine why would he then say yes, he sold me the pistol, the 21 rifle. 22 A resident alien is not a prohibited person from So the evidence is going to show that my Don't care about That he had his own address, whether it's Why? You're going to have to My client believes the evidence will show something quite to 23 the contrary as far as pressure put on a resident alien, but 24 that's my client's belief. 25 they then called him a second time and said: The evidence is going to show that Get another rifle. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 35 of 41122 1 The evidence is going to show that my client is a Texas 2 resident, and so is Sergio, a resident alien in the State of 3 Texas. 4 Texas residents, and they're both private individuals. 5 evidence is going to show, as counsel for the United States 6 prosecutor's office says, the law is ATF says the Form 4473 says 7 you have to be the actual buyer. 8 the law will show, if the Court so decides to give you 9 instructions, that there are exceptions. 10 The evidence is going to show they both, all right, are Well, that's true. I can give something as a gift to someone. And the But also I can buy a 11 firearm for someone else if I so chose to do so of whether it's 12 a -- the evidence is going to show the second time Sergio calls 13 him, to the best of my knowledge and belief, and the evidence 14 will show, say: 15 needs it for a gift, I believe the evidence is going to show. 16 And the evidence is going to show you can buy a gift for your 17 son or for a parent to a son or for a friend. 18 is going to show you can't, as they say, buy it so I can go give 19 it directly to someone else. 20 show this is not a weapon that -- that's intended like buying 21 for others to sell in Mexico or assault rifles or anything like 22 that. 23 Hey, in Spanish, need another firearm. Okay. My son But the evidence The evidence is going to This is a hunting rifle. The evidence is going to show the one that's telling the 24 truth is my client. The evidence is going to show that, look, 25 they take -- "they" being the officers. All they did was talk Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 36 of 41123 1 to this one guy and to someone who worked at Academy. 2 evidence is going to show my client saying: 3 Go speak to everyone else in the ranch, in the lease, and 4 they'll tell you that -- the evidence is going to show: 5 they'll tell you that was his part of the money for the ranch, 6 and that rifle belongs to Manuel, all right? 7 going to show: 8 a ranch rifle and that's his portion. 9 show that he is the purchaser. 10 Don't believe me. Hey, The evidence is But we all can use it, that rifle, because it's The evidence is going to Please wait for the end of the entire trial to finish. 11 The evidence is going to show that while Sergio is being 12 questioned, here comes Mr. Torriz and tells Sergio: 13 that you cooperate with us. 14 you be a government witness. 15 that means is what you're going to say, yes. 16 rifle for me illegally. 17 It's best It's in your best interests that The evidence is going to show what He bought the The evidence is going to show that Sergio had other 18 firearms, okay? 19 him. 20 right? 21 is. 22 contribution is here. 23 it, everyone gets to use it. 24 ranch and him for everyone to use. 25 The He didn't need that firearm to be bought for He already had his own firearms in his own place, all The evidence is going to show exactly what I'm saying it And Manuel bought that firearm for himself. And yes, your You get to use it, your son gets to use But that rifle belongs to the The evidence is going to show that the officers seized the Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 37 of 41124 1 unindicted co-conspirator's weapons, all right, and took them 2 with him. 3 him. 4 is a deer rifle. 5 So he didn't need to have someone buy a firearm for He already had two of his own. And they were 270s, which We believe our client will testify. I'll go ahead and tell 6 you that, so please don't make up your evidence (sic) until all 7 the evidence is before this honorable jury. 8 fair. 9 10 11 12 13 14 15 16 17 I think it's only Thank you. THE COURT: All right. I would have all witnesses come forward so that they may be sworn. (Witnesses present.) THE COURT: Please form a line in front of the clerk of the court. Mr. Gamez, is your witness available to be sworn? MS. BETANCOURT: Your Honor, if I may, Mr. Gonzalez is a Spanish speaker. THE COURT: All right. I'm going to ask all of you who 18 are here to be sworn, please raise your right hand so that you 19 may be sworn. 20 (Witnesses sworn.) 21 THE COURT: Very well. Thank you. First I'm going to 22 ask each one of you to tell your name beginning with you, sir. 23 And if your name is a little unusual in pronunciation or 24 spelling, please spell it out for us. 25 THE WITNESS: Jorge Pena. Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 38 of 41125 1 THE WITNESS: Omar Garza. 2 THE WITNESS: Gustavo Gonzalez. 3 THE WITNESS: Eduardo Gonzales. 4 THE WITNESS: Raul Garcia. 5 THE WITNESS: Albert Torriz. 6 THE WITNESS: Sergio Gonzalez. 7 THE WITNESS: Shaun Owen. 8 THE WITNESS: Michael Deans. 9 THE COURT: 10 THE WITNESS: 11 THE COURT: How do you spell your last name? D-E-A-N-S. All right. I'm invoking the rule. That 12 means all witnesses must remain outside the courtroom until your 13 name is called to testify. 14 with anyone except for with the lawyers for the government or 15 the lawyer for the defendant, but you cannot do so in the 16 presence of any other witness. 17 or an account of the facts of this case unless it is a report or 18 an account that you yourself have written. 19 20 You must not discuss your testimony You must not read any report of Mr. Ponce, are you asking any of these witnesses to be excused from the rule? 21 MR. PONCE: Yes, Your Honor. 22 THE COURT: Very well. FBI Agent Shaun Owen. Then that witness is excused 23 from the rule. 24 other witnesses, please remain outside the courtroom. 25 That means he may remain in the courtroom. (Witnesses leave courtroom.) All Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 39 of 41126 1 2 3 THE COURT: All right. Mr. Ponce, do you make an offer of Government exhibits? MR. PONCE: Yes, Your Honor. At this time the 4 government makes an offer of Exhibits 1 to 23 and also 26 to 28 5 inclusive. 6 THE COURT: There being no objection from the defendant? 7 MR. GAMEZ: No objections, Judge. 8 THE COURT: Admitted. 9 10 And, Mr. Ponce, just disabuse me of this notion. boxes empty or -- 11 MR. PONCE: 12 are boxes of those rifles. 13 THE COURT: 14 15 16 17 18 19 20 21 22 23 24 25 Are those These are Exhibit No. -- No. 16 and No. 26 Both are empty, Your Honor. Is the government not going to be offering evidence of the actual weapons? MR. PONCE: We have the photographs and the serial numbers of those weapons, Your Honor. THE COURT: All right. Thank you. I just wanted to make sure that they were disabled if it was. Thank you. Then you may call your first witness. MS. BETANCOURT: Your Honor, the government will call Eddie Gonzales. THE COURT: Eddie Gonzales. Good afternoon, sir. Please have a seat in the witness chair to my right. Is the witness going to be using the ELMO? Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 40 of 41127 1 MS. BETANCOURT: 2 THE COURT: Yes, Your Honor. Stella, would you please kind of give him a 3 little crash course? 4 a little getting used to. 5 All right. We have a lot of technology, but it takes You may proceed. 6 EDUARDO GONZALES, 7 the witness, having been previously duly cautioned and sworn to 8 tell the truth, the whole truth and nothing but the truth, 9 testified as follows: 10 DIRECT EXAMINATION 11 BY MS. BETANCOURT: 12 Q Mr. Gonzales, will you please give the jury your full name. 13 A My name is Eduardo Gonzales. 14 Q And, Mr. Gonzales, where do you work? 15 A I work at Academy Sports and Outdoors here in Brownsville. 16 Q And how long have you worked for the Academy Company? 17 A I've worked for ten -- ten years and seven months. 18 Q And with the Brownsville store, how long have you been 19 there? 20 A 21 months. 22 Q And what is your title there at the Brownsville store? 23 A I'm the store director. 24 Q And can you just give the jury just a brief description of 25 what the store director does at Academy? I've been at the Brownsville location for a year and seven Case 1:12-cr-00472 Document 102-2 Filed in TXSD on 01/22/13 Page 41 of 41128 1 A A store director is responsible for overseeing all 2 responsibilities of a store from day-to-day transactions, 3 maintenance, organizations, cells. 4 store, I'm responsible for. 5 Q 6 distinguish the Brownsville Academy from the Weslaco Academy 7 from the Houston Academy? 8 A We would say it is Academy Sports and Outdoors Store 30. 9 Q And what does the No. 30 refer to? 10 A The store location. 11 Q And as the store director, are you responsible for the 12 training of your employees? 13 A I am responsible for the training of the associates. 14 Q Are you also responsible for the day-to-day operations of 15 your employees to make sure they follow the rules and 16 regulations put forth by Academy? 17 A 18 following the day-to-day responsibilities. 19 Q And your store here in Brownsville, does it sell firearms? 20 A We do. 21 Q Okay. 22 A It sells a variety of long guns and handguns and revolvers. 23 Q And how -- where is the store -- in the store, where is the 24 gun counter located? 25 A Anything that involves the And what's the official name of your store? How do you I am responsible for making sure that associates are And how -- what kind of firearms does it sell? Inside the store walking in, would be to the right side of Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 1 of 41 129 1 the building. 2 Q 3 the Academy? 4 firearm at your Academy store here in Brownsville? 5 A 6 the building, they made the determination that they're wishing 7 to purchase a firearm, they would again go to the gun counter, 8 and they would have to be responsible for filling out the 9 necessary paperwork in order to have a firearm transferred to And in general, how does one go about buying a gun there at What do you need to do in order to purchase a At every Academy Sports and Outdoors, once they walk into 10 them. 11 Q 12 view the guns that are for sale? 13 A Customers are allowed to review the firearms. 14 Q Okay. 15 in your store? 16 A They are allowed to handle the firearms. 17 Q And who are the clerks behind the counter? 18 A They're -- the associates that work for me who are certified 19 to sell firearms, they're my official associates. 20 Q 21 means when you have a clerk that is certified to sell firearms? 22 Is that the same clerk that's working the cash register, or are 23 these individuals that have special training? 24 A 25 certification course that allows them to sell firearms for Okay. And there at the gun counter, are they allowed to And are they allowed to actually handle the firearms All right. Can you explain that to the jury, what that These individuals or my associates go through a training, a Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 2 of 41 130 1 Academy Sports and Outdoors, specifically at our location only, 2 and they're certified to sell firearms for Academy. 3 Q 4 licensed to sell firearms. 5 sell firearms? 6 A This is correct. 7 Q Is that what we would refer to as a federally -- a federal 8 firearms licensee? 9 A That is correct. 10 Q Can you just briefly explain? 11 maybe in the industry you-all use is FFL? 12 A That is correct. 13 Q The federal firearm licensee. 14 what that is? 15 A 16 the authority or the ability to sell firearms or transfer 17 firearms from our organization or our company to any other 18 individual who wishes to purchase one. 19 Q 20 Okay. So let's then go into -- you've used this word Is your Academy store licensed to I think the acronym that Could you explain to the jury The federal firearm license or the FFL certifies us to have Okay. And -- MS. BETANCOURT: Your Honor, I'm going to -- if -- show 21 the witness No. 27 here. 22 BY MS. BETANCOURT: 23 Q 24 Exhibit No. 7 -- 27, Government's Exhibit 27, which has already 25 been entered, has the name of Academy Sports and Outdoors Mr. Gonzales, if you can look there on your screen, Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 3 of 41 131 1 No. 30. Is that your store that you're referring to here in 2 Brownsville, Texas? 3 A That's my store, yes. 4 Q Okay. 5 Exhibit No. 27 is? 6 What does this document allow your store to do? 7 A 8 the agreement that allows us to sell firearms in Academy Sports 9 and Outdoors Store 30 in Brownsville. And can you explain then to the jury what It has the title "Federal Firearms License." This document is the actual four-to-four license. This is 10 Q And then the individuals there then that are working at the 11 desk there or behind the counter, behind the sales counter, are 12 they then designated by Academy to be representatives to sell 13 those firearms? 14 A 15 firearms, yes. 16 Q 17 specialized training in the sale of firearms as the store 18 director under this license? 19 A 20 store director would get certified to have an FFL license, we 21 have to go through or we'll discuss with an ATF agent the dos 22 and don'ts and the responsibilities of selling a firearm. 23 Q 24 become familiar with the United States Code provisions that 25 apply to the sale of firearms? The field and stream associates are certified to sell And do you have any specialized training, or do you receive Correct. At the time that we -- I get -- or at the time a So it is your responsibility then as a store director to Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 4 of 41 132 1 A Correct. 2 Q And what type of training do you receive on those sales? 3 A Academy Sports and Outdoors has a -- a modular system set up 4 to teach and inform and instruct all the sales associates in 5 order for us to be able to handle, sell and transfer firearms 6 from our location to -- or to transfer the sale of firearms, I 7 should say. 8 Q 9 under Chapter 44 of the United States Code, 18 USC, Chapter 44, 10 that requires certain paperwork and certain documentation to be 11 kept by your store in order to conduct firearms sales? 12 A This is correct. 13 Q And what is that form or documentation that you're required 14 to provide to a customer and keep on firearms transactions? 15 A 16 we would consider a 4473. 17 application to transfer firearms from our -- from us and 18 certifies them the ability to purchase a firearm. 19 Q 20 to? 21 the federal government? 22 A That's from the Department of Justice. 23 Q Okay. 24 that you work with Alcohol, Tobacco, Firearms and Explosives, is 25 that the form that they have generated for use by these FFLs to And is that training including the federal government rules All the forms, the firearm transaction transfer form or what Okay. That form is used sort of as an And who creates that form, that 4473 you're referring Is that something Academy creates, or does that come from And is that then -- when you mentioned a minute ago Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 5 of 41 133 1 sell guns? 2 A That is correct. 3 Q Okay. 4 Academy in the training that your employees are given, when are 5 they given that form? 6 A 7 have already verified or they would have approached the gun 8 counter. 9 interested in wanting to purchase. So then when a person approaches the gun counter at How does that transaction take place? At the time a customer wishes to make a purchase, they would They would have looked at a firearm in which they were And they would have made it 10 clear to us that this is the firearm they wanted to purchase. 11 And at that time when they cleared that they wanted to make the 12 purchase, we would provide them with a 4473 or the firearms 13 transaction or transfer form -- 14 Q I have -- 15 A -- which would allow a person to purchase a firearm. 16 Q Okay. 17 A I am. 18 Q And do you receive training on what that form is and how it 19 should be correctly filled out? 20 A Yes. 21 Q And do your sales associates also receive that training? 22 A Yes, they do. 23 And are you familiar with that form? MS. BETANCOURT: Your Honor, if I may approach and -- 24 well, actually I'll show from here, if that's all right with the 25 Court. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 6 of 41 134 1 BY MS. BETANCOURT: 2 Q 3 form, Mr. Gonzales. 4 to a number. 5 right-hand corner. 6 ATF Form 4473? 7 use to identify this form? 8 A That is correct. 9 Q Okay. Exhibit No. -- Government's Exhibit No. 14, just a blank The firearms transaction record, you refer If I can direct your attention here to the bottom When you say 4473, are you referring to this Is that the lingo or the shorthand that y'all And just if you could briefly, just briefly tell the 10 jury here in this first section in Government's Exhibit No. 14, 11 the first section, who fills out this form? 12 A 13 filling out the entire front page of the 4473 or the firearms 14 transfer record. 15 out. 16 Q 17 information is the customer required to provide? 18 A 19 their name, full name, first and last, their residence, date of 20 birth, Social Security number optional, zip code, the basic 21 address and information of one individual and their race and 22 their -- and I believe -- yeah, their race. 23 Q 24 filling out those questions? 25 A The purchaser of the firearm would be responsible for They would be responsible for filling that And here in Section A in questions 1 through 10, what Your -- they would have to be responsible for providing And then the questions 11A through L, who is responsible for The person wishing to make the purchase. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 7 of 41 135 1 Q 2 So if we look at the first question here, 11A, it asks, "Are you 3 the actual transferee/buyer of the firearm listed on the form?" 4 Then it gives a warning. 5 are acquiring the firearm on behalf of another person. 6 are not the actual buyer, the dealer cannot transfer the firearm 7 to you." 8 9 Okay. And so those are simple yes or nos, check in the box. "You are not the actual buyer if you If you If a person answers that question yes, I am the actual buyer of the firearm, will you sell them the gun? 10 A Yes. 11 Q Okay. 12 friend."? 13 that person a gun? 14 A 15 firearm. 16 in the event that they had made a mistake, we would ask them to 17 verify that the information that they're giving or providing to 18 us was correct and true information. 19 Q 20 and marked the wrong answer, you will give them an opportunity 21 to correct the form? 22 A Correct. 23 Q But it's their responsibility to answer truthfully? 24 A Correct. 25 Q And so when you're having them answer this form, are you What if that person says, "No, I'm buying it for a If the answer to that question is no, would you sell If the -- if they actually said no, we would not sell the If they had made indication that -- or if they had -- So, for example, if somebody just read the question wrong Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 8 of 41 136 1 policing their questions? 2 you questioning if they say no, I'm not the person buying the 3 firearm or they say yes, do you try to discern whether or not 4 they're telling the truth? 5 A 6 it's L, I, we can't help them answer those questions. 7 questions have to be true, in fact, to their full belief in 8 respect to their question. 9 Or let me say it a little more -- are The questions from question L -- A through, and I believe Those Now, if they make an error or if they make a mistake on that 10 portion, we will ask them to reread it so that they can be 11 comfortable and 100 percent sure that there's a correction or 12 that they need to make a correction on that form. 13 time once they sign the 4473, then they're certifying that the 14 information they put on the front of the page is true and 15 correct. 16 Q 17 No. 16 at the completion of Section A, it does, in fact, ask the 18 person -- it asks the person to do what? 19 A 20 fill out the information on the questions, basically it's a 21 certification indicating that they're telling the whole truth to 22 the state of the form. 23 you're telling the truth and that all the information on the 24 front of the page is true and correct. 25 Q And let's get to that then. But at the On the next page there at It asks the question -- it basically explains that once they In laymen's terms, just says you certify And do you give them time and opportunity to read through Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 9 of 41 137 1 that warning there? 2 it. 3 A 4 transfer of a firearm. 5 front of us, but -- if it took them an hour to fill out the 6 form. 7 Q 8 am not the actual buyer, it is a crime punishable as a felony 9 under federal law." 10 Yes. It's that warning section before they sign There is no time limit for a person wishing to make a We just ask that they keep the form in And including in that warning under next 11A, it says, "If I So that warning is included in the form that you give them, 11 and you have them read all of that before they sign? 12 A That is correct. 13 Q Okay. 14 says, "Must be completed by the transferor." 15 part of the form? 16 A That would be one of my representatives. 17 Q There at the gun counter? 18 A At the gun counter. 19 Q A person who's received training on ATF, ATFE rules and 20 relations regarding Form 4473? 21 A Correct. 22 Q Okay. 23 here in Section B? 24 A 25 identification number, which would be either their state or And then we move on to Section B. And Section B Who fills out that And what is the -- what information are you gathering We would provide the information. It would ask for their Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 10 of 41138 1 Texas driver's license number, the type of firearm that they're 2 getting, and the expiration date of the driver's license. 3 they had a firearm -- like a concealed handgun license, we would 4 document that as well, on the form as well. 5 Q 6 what then do you do with the information that you've received 7 and fill in? 8 A 9 was -- or able to purchase a firearm by using the -- it's a Okay. If And after you received that information in Section B, We would go and confirm -- we would verify that this person 10 NIBCS system, which is -- 11 Q Go ahead. 12 A Which is the -- it's the National Background -- or National 13 Instant Background Criminal System, which we utilize to verify 14 that someone is legally able to purchase a firearm. 15 doing a background check. 16 Q 17 explain that to the jury? 18 A 19 we got that information, we would take that information, we 20 would enter it onto the computer database, NIBCS database, and 21 we would enter all their current information for the transferee 22 or the one making the purchase into the system. 23 Yes. NIBCS, that's an acronym for what? And how do you perform that background check? Basically Could you At the time once they finished filling out their paper and Once we would get a response, whether it be delayed, denied 24 or proceed, we would print out the copies of the form that we 25 would receive back and attach it to the 4473, as well as we Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 11 of 41139 1 would document on the 4473 that it was -- what level it was, 2 whether it was delayed, proceed, or denied. 3 Q 4 what does the Academy sales associate then do? 5 A 6 time would go to the gun counter, and we would verify the 7 firearm to make sure the serial number matches the information 8 on the 4473. 9 making the purchase, and we would confirm whether or not this And if their NIBCS background check comes back as proceed, They then contact the member of management, and we at that We would speak with the transferee or the one 10 firearm was for them. 11 return policies and procedures that Academy provides for them, 12 and we would then walk the firearm up to the registers and make 13 the transfer of the firearm. 14 Q 15 firearm there at the cash register? 16 A That is correct. 17 Q And then what happens to the gun? 18 A We then walk the person to the door, hand them the firearm, 19 and then we would go file our paperwork. 20 property of the purchaser of the firearm. 21 Q 22 are you referring to? 23 buying? 24 buyer going back over the paperwork again? 25 A Okay. We would make sure they understand the And is that where the person then pays for the And the gun is now When you say that the manager is talking to them, are -- who The manager comes to the -- the person There's a conversation between the manager and the That is correct. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 12 of 41140 1 Q Okay. And then what does that manager do then to signify -- 2 let's continue on with that form. 3 manager then do to signify that they have, in fact, gone over 4 this paperwork and confirmed that this is true and correct, 5 these are true and correct answers, and this is a true and 6 correct record of the firearms sale? 7 A 8 be filled out on the form. 9 the information, the serial number, the model of the firearm, 10 the manufacturer of the firearm, the gauge of the firearm was 11 properly filled out on the form. 12 Q 13 you, Academy, as the seller? 14 A Correct. 15 Q Okay. 16 A We would have to answer the question, the total number of 17 firearms being purchased, if it was purchased at a pawn shop or 18 not, which, of course, Academy is not a pawn shop. 19 have to indicate our address of the location, and our FFL 20 license number would be -- will be required on the form as well. 21 Q That would be No. 31 and 32 here of Government's Exhibit 14? 22 A Correct. 23 Q Okay. 24 name? 25 A What was -- what does that The manager would confirm all the proper information would They would log in and make sure that And that's being filled out by your sales associate there, We would And then at 33 where it says the transfer of seller's The associate who initiated the sale of the firearm would be Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 13 of 41141 1 responsible for signing that information down there or on the 2 bottom of the form between 33, 34, 35 and 36. 3 manager would come and sign the bottom. 4 Q 5 then kept by Academy. 6 is a blank form, but let's say that I had filled out this form 7 to buy a gun there at Academy. 8 form? 9 A And then the Now, a minute ago you had mentioned that these forms are What do you do then -- and Exhibit No. 14 What would you then do with this The file forms are held on record for -- I believe it's 20 10 years at Academy. 11 Q 12 national service or any national clearing house or any national 13 information gathering agency. 14 where the firearm was purchased? 15 A That is correct. 16 Q Okay. 17 the form that there's a section where the buyer of the firearm 18 must present identification. 19 does a person need to present to your sales clerk there at 20 Academy as proper identification to buy a firearm? 21 A 22 ID. 23 a passport. 24 Q 25 December of 2011, if you were a person who was a lawful All right. And so you don't have to send them off to any You keep the records in the store I'd like to then ask you about -- you mentioned in Can you explain to the jury what They would have to provide a government issued ID, picture So it would be like a driver's license, a Texas ID card or Okay. And for the rules that existed at the time in Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 14 of 41142 1 permanent resident of the United States, did you have to provide 2 some additional documentation in order to provide -- to purchase 3 a firearm per the ATF rules? 4 A Yes. 5 Q And what would a person who was a licensed permanent 6 resident, according to the ATF rules that Academy was required 7 to follow, what additional documentation would they have to 8 present to you in order to buy a firearm? 9 A Yes, that's correct. If a -- if a legal resident wished to purchase a firearm, 10 they would have to provide a government issued ID, they would 11 have to provide their documentation, their permanent resident 12 card, and they would have to provide three months of utilities 13 consecutive or like a phone bill, but consecutive, but be land 14 tied. 15 three months consecutively. 16 Q 17 lawful permanent resident, would Academy be able to sell them a 18 gun? 19 A No. 20 Q Mr. Gonzales, at this time I'd like for you to take a look 21 at Government's Exhibits Numbers 12 and 19. 22 Government's Exhibit No. 12. 23 Government's Exhibit No. 12 is an Academy receipt from 24 Brownsville. 25 Academy generates upon the sale of an item? And they would be able -- they would have to provide that And if they were not able to provide that documentation as a I'll show you And I'm just going to ask, Is this the type of receipt that for -- that Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 15 of 41143 1 A This is correct. 2 Q Okay. 3 store name, Brownsville there being on the top of the receipt? 4 A 5 number, which is right there. 6 Q 7 your store? 8 A That is correct. 9 Q Okay. 10 A That is correct. 11 Q Okay. 12 what this is a receipt for? 13 A This is a receipt for a Remington 270 rifle. 14 Q All right. 15 some additional information? 16 says serial number, and then it has a series of numbers 17 M71729803. 18 A That would be the serial number of the firearm. 19 Q The specific firearm being sold in this transaction? 20 A That is correct. 21 Q And then it has a purchase price and tax. 22 what we're all familiar with, how much it cost and how much tax 23 was paid? 24 A That is correct. 25 Q And then the method of payment. And that's identified on the -- on the receipt by the That is correct. And it also would be in the transaction There's a 30. And so that number 30 also identifies it specifically as to And there is only one Academy in Brownsville, right? And just in general, can you just explain to the jury And on these receipts, does Academy also include I see here right underneath, it What is that information there? That's, I guess, I see that it says cash Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 16 of 41144 1 tender here. Are you allowed to buy a gun using cash in your 2 store? 3 A Yes. 4 Q And then here on the bottom, it gives a date. 5 the date of the actual transaction there at Academy? 6 A That is correct. 7 Q Okay. 8 gun on December the 5th. 9 going to ask you to take a look at Exhibit No. 15 here. That would be That is the date and the time. And so this reflects then a receipt for the sale of a To go along with that receipt, I'm And if 10 I go to the back and show you the signatures here -- well, let's 11 start with No. 31. 12 seller of the firearm. 13 A That is correct. 14 Q Is that your Academy store? 15 A Yes, it is. 16 Q And so on this Form 4473, Exhibit No. 15, is this a firearms 17 transaction record from a sale at your Academy? 18 A It is. 19 Q And who are the persons that sold the firearm to this 20 individual? 21 A 22 store. 23 Q 24 associate? 25 A Academy Limited No. 30 is listed as the That is my sales associate, and that is a manager in the That would be Mr. Manuel Perez the Third would be the sales That is correct. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 17 of 41145 1 Q And the R. Rodriguez would be -- 2 A She's the manager in my store. 3 Q And what is her full name? 4 A Her name is Veronica Rodriguez. 5 Q And the buyer of this firearm as listed in Section A is who? 6 A Manny Eduardo Pena. 7 Q All right. 8 the information that you use to then do the background check 9 for -- on the NIBCS system? We call her Ronnie. And the information that he gives there, that's 10 A Correct. 11 Q And then questions 11A through L, those are the questions 12 that you told the jury about a minute ago that the actual buyer 13 of the firearm is to fill out? 14 A Correct. 15 Q Okay. 16 "yes" to question 11A and "no" to questions B -- 11B through L? 17 A Correct. 18 Q With those answers, does that allow that person then to buy 19 a firearm? 20 A Yes. 21 Q Okay. 22 "no" to question 11A, he would not have been allowed to buy a 23 firearm? 24 A That is correct. 25 Q Now, a minute ago you had also referred the jury to a And I see here that the buyer of this form answered So if he had answered -- if Mr. Pena had answered Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 18 of 41146 1 situation where if a person couldn't or didn't know how to 2 answer a question 11A through L, that you cannot tell them how 3 to answer that question. 4 guidance for them if they had a question about the form? 5 A The form does. 6 Q Okay. 7 ahead and read the form about that particular question? 8 A 9 question LA, it does give examples, and it does answer -- tells However, does the form provide some So, for example, could you then tell them, well, go Exactly. If you look -- can you turn it to the front? On 10 you where you can actually see the instructions if there was any 11 questions about filling out that particular question. 12 Q 13 the instructions for Question A11"? 14 A Correct. 15 Q Okay. 16 that's titled there -- this is all part of the form -- it 17 actually gives the person an example, does it not? 18 A It does. 19 Q Okay. 20 the jury, what type of example does it give? 21 transferee buyer examples." 22 person if they have a question? 23 read for the jury what it says there about Mr. Smith? 24 A 25 Mr. Smith. And that's when it's referring here in the parentheses, "See And so if we go to the instructions for Question A11, And so for an example there, if you could read for It says, "Actual What does the Form 4473 tell the Mr. Smith, if you could just It says, "Mr. Smith asks Mr. Jones to purchase a firearm for Mr. Smith gives Mr. Jones the money for the firearm. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 19 of 41147 1 Mr. Jones is not the actual transferee/buyer of the firearm and 2 must answer no to Question 11A." 3 Q And that would mean they can't buy a gun? 4 A That is correct. 5 Q But the example, the hypothetical also goes on, does it not, 6 to say, "The licensee may not transfer the firearm to Mr. Jones. 7 However, if Mr. Brown goes to buy a firearm with his own money 8 to give to Mr. Black as a present, Mr. Brown is the actual 9 transferee/buyer of a firearm and should answer question yes"? 10 A Correct. 11 Q So, for example, if a person wanted to go in and buy a gift 12 for their husband for Christmas, then they could, in fact, go in 13 and buy the firearm as a gift? 14 A They would be able to purchase a gift. 15 Q But if someone gave me the money and said, "Go buy the gun 16 for me," that's not considered a gift? 17 A Exactly. 18 Q And according to those examples, they have to answer the 19 question no, I'm not the actual buyer? 20 A That is correct. 21 Q And then also as to the sale of firearm to legal aliens, you 22 explained a minute ago to the jury what the additional 23 requirement was. 24 there under document -- under Question 20C, it gives some 25 documentation for all aliens. If you could just help the jury understand And it says, "For the sale of Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 20 of 41148 1 firearms to legal aliens, a buyer who is not a citizen of the 2 United States must provide additional documentation." 3 Was that the documentation you were referring to about 4 utility bills or phone bills or something in their name? 5 A That is correct. 6 Q And this rule here says that it has to be for at least 90 7 days immediately prior to the date of the sale? 8 A Correct. 9 Q And so that's where you as Academy, from this example, it It would be proof of their residency. 10 tells you that you can accept state residency for utility bills 11 from each of the last three months immediately prior to the 12 sale. 13 because that's what the licensee -- the ATF form allows you to 14 accept? 15 A That is correct. 16 Q And in Exhibit No. -- And so that is something that Academy then accepts, 17 MS. BETANCOURT: Your Honor, may I approach the witness? 18 THE COURT: 19 BY MS. BETANCOURT: 20 Q 21 Remington box, on the side of it, it has some documentations 22 documenting some information about this Remington rifle. 23 that also include a serial number? 24 A It does. 25 Q If you could just hold on to that for a second. Yes. Mr. Gonzales, on the side of this box -- well, this Does I'm going Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 21 of 41149 1 to ask you to compare the serial number on that box with the 2 serial number on Exhibit No. 12, the Academy receipt for the 3 December 5th sale. 4 that contained the firearm you sold in this transaction, 5 M71729803? 6 A That is correct. 7 Q And that matches Exhibit No. 15, which as you told the jury, 8 is completed by your sales associate and double checked by your 9 manager to show a Remington 770. Is that the actual box that would have -- And again I'll ask, does that 10 match the box that you have there, the 71729803? 11 A It does. 12 Q And that's for the sale of a 270 caliber rifle? 13 A It does. 14 Q Okay. 15 Academy store and is -- by the documentation, that is the actual 16 box from the gun, not the actual gun itself, but the box from 17 the gun for the sale on December the 5th? 18 A That is correct. 19 20 And that is a product that is sold there in your MS. BETANCOURT: Okay. May I approach the witness, Your Honor? 21 THE COURT: Yes. 22 BY MS. BETANCOURT: 23 Q 24 one is dated December 19th. 25 from your Brownsville store? In Exhibit No. 19, again we have an Academy receipt. This Again, that No. 30 tells us it's Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 22 of 41150 1 A That is correct. 2 Q It tells us it's from the Brownsville store. 3 this a sales receipt for? 4 A 5 peanuts, single pack. 6 Q Okay. 7 A It's paid for in cash. 8 Q And $400 cash is given, is that what's reflected? 9 A That is correct. 10 Q And $74.41 is the change made? 11 A That is correct. 12 Q Okay. 13 the serial number of the firearm -- for the transaction? 14 A That would be the serial number for the transaction, yes. 15 Q Okay. 16 that documentation here at the bottom. 17 that out to the jury. 18 referring to, ATM Form 4473? 19 A That is correct. 20 Q Okay. 21 Limited No. 30 as the seller. 22 A Yes, it is. 23 Q Okay. 24 block, that's contained here in a block, is that the same 25 license that we referred to here in Exhibit No. 27? And what is This is a sales receipt for a Remington 770, 270, and M & M And how is it paid for? And again, it contains the serial number. Is that And if we looked at Exhibit No. 20, again it's got If we can just point This is again that same form we're And this form reflects again same store, Academy Is that your store? And this federal firearms license that's here in a Is that Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 23 of 41151 1 your license number? 2 A Yes, it is. 3 Q Okay. 4 Who -- that's the transferor, the seller's name? 5 Who is he? 6 A That is my sales associate. 7 Q And Julio Santos, that would be the manager? 8 A He's the manager of the store, yes. 9 Q And this is a sale for what type of gun? 10 A A Remington 770. 11 12 And the signatures here, we have Juan Gonzalez. MS. BETANCOURT: Okay. Who is that? May I approach the witness, Your Honor? 13 THE COURT: Yes. 14 BY MS. BETANCOURT: 15 Q 16 to ask you to look at that same information there on the end. 17 And I'm going to ask you to tell me if that is the same box that 18 we're referring to here, the box that contained the rifle 19 bought, a Remington 770. 20 jury the serial number. 21 A Off the box? 22 Q Off the box. 23 A The serial No. is M71716198. 24 Q And that's a sale for what type of gun? 25 A It is a Remington bolt action center fire 270. I will show you Exhibit No. 26 here. And again, I'm going And if you could just read for the Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 24 of 41152 1 Q And so Exhibit No. 20 here along with the box -- 2 MS. BETANCOURT: Your Honor, may I approach the witness? 3 THE COURT: 4 BY MS. BETANCOURT: 5 Q 6 are all from a firearms transaction that was conducted in your 7 store on December the 19th? 8 A Correct. 9 Q Now, now that we've looked at both of those forms, including Yes. The box being Exhibit No. 26 and the receipt being 19, these 10 Exhibits 20 and 15, the Form 4473 from December 5th and 11 December 19th respectively, were you involved in either of those 12 transactions? 13 A I was not. 14 Q Okay. 15 the manager? 16 A I was not. 17 Q But the information that you provided here as Academy store 18 director is the information of how these firearms transactions 19 are, in fact, conducted at your store? 20 A That is correct. 21 Q And these forms -- through the information that you provided 22 here today, you confirm that Exhibit No. 15 is, in fact, a Form 23 4473 from an Academy sale on December the 19th -- I'm sorry, 24 December 5th of 2011? 25 A So you were not the seller, the sales associate nor Correct. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 25 of 41153 1 Q And that Exhibit No. 20 is also the Form 4473 from a 2 firearms sale at your Academy store on December 19th, 2011? 3 A Correct. 4 Q Okay. 5 cameras that can capture what's going on at the gun counter at 6 Academy? 7 A Yes. 8 Q And it's my understanding at some point in time, there were 9 some law enforcement agents that asked your Academy store to see Now, it's my understanding that there are video 10 if they could capture some video back from December the 5th and 11 back from December 19th? 12 A Yes. 13 Q Okay. 14 cooperative and provided video or recorded some video of some 15 firearms transactions during that time? 16 A This is correct. 17 Q Did you also learn in the last couple of weeks that we went 18 back over that video and found that we had just recorded the 19 wrong date? 20 the dates that the agents were talking to the store, and the 21 dates of the transactions were not recorded? 22 A That's correct. 23 Q Did the agents then ask you to go back and find those 24 recordings? 25 A And it's my understanding that Academy was very What looked like to be recorded was some dates of They asked if there was recordings out there. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 26 of 41154 1 Q Okay. Were you able to locate any of those -- any of those 2 recordings that didn't get recorded when we asked the first 3 time? 4 A 5 place in the month of December. 6 Q 7 system and no longer keep the recordings. 8 longer keep recordings over a certain period of time? 9 A That is correct. 10 Q Okay. 11 of 2011, would you consider that to be a busy time in your 12 store? 13 A Yes. 14 Q Why would you consider that to be a busy time? 15 A Well, it's in preparation for holiday business, plus it's 16 hunting season at the gun counter specifically, and we are just 17 extremely busy during the holiday time. 18 Q 19 season. 20 A Yes. 21 Q And is that considered high end gun at Academy, a low end 22 gun, a mid range gun on the price scale? 23 A That would be a mid range gun. 24 Q So Academy has guns that they can buy for cheaper? 25 A Correct. We do not have any recordings of any transactions that took All right. And that is because you changed over to a new I believe you no November, December -- I'm sorry, December, December And this type of gun that was sold, you said it was hunting Is that a standard hunting rifle? Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 27 of 41155 1 Q Academy has hunting rifles you can buy for a lot more money? 2 A Correct. 3 Q Okay. 4 about the video. 5 recordings of the videos, the person at Academy was the one that 6 actually provided the videos, and those just happened to be the 7 wrong dates based on the information that the law enforcement 8 had given them? 9 A That is correct. 10 Q Okay. 11 the signatures that were required here in No. 33, both your 12 sales associate and your manager signs. 13 now to No. 16. 14 you had explained to the jury that here on No. 16, that that is 15 the signature of who? 16 A 17 purchaser of the firearm. 18 Q Okay. 19 A The customer, correct. 20 Q Okay. 21 buying this gun is Manuel Eduardo Pena. 22 No. 16, whose signature am I seeing here? 23 A That would be Manuel Eduardo Pena. 24 Q And that's from the 19th sale? 25 A That is correct. Let me go back and clarify that question I asked you When the law enforcement agents asked for the The firearms form 15 and 20, you and I talked about I want to go back here When you and I were going over the blank form, That would be the signature of the transferee or the The customer. The person buying the firearm? So the front of this form tells us that the person So when I come here to Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 28 of 41156 1 Q 2 transferor's name, that would be the customer or the buyer? 3 A Correct. 4 Q Manuel Eduardo Pena. 5 signature am I seeing here? 6 A That would be the customer, Manuel Eduardo Pena. 7 Q For the December 5th, 2011 sale? 8 A That is correct. 9 10 And then if I look here on that same 4473 form, again, the MS. BETANCOURT: If I look here then at No. 16, whose I'll pass the witness at this time, Your Honor. 11 THE COURT: Mr. Gamez? 12 CROSS-EXAMINATION 13 BY MR. GAMEZ: 14 Q 15 it? 16 A Yes, sir. 17 Q There's the top of it, all the way to the bottom. 18 anything illegal about that form? 19 Mr. Gonzales, let's look at Government Exhibit 15. THE COURT: 20 BY MR. GAMEZ: 21 Q 22 You see Is there It's too vague a question. Is there anything wrong that you can see in that form? MS. BETANCOURT: Your Honor, I'm going to object. 23 requires him to speculate, No. 1. 24 there when this transaction took place. 25 testified that they don't police the person's answers. That He's testified that he wasn't No. 2, he's also They Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 29 of 41157 1 assume that they're correct. 2 3 THE COURT: you're referring to. 4 MR. GAMEZ: You have to be more specific about what It's too vague, Mr. Gamez. All right, Judge. 5 BY MR. GAMEZ: 6 Q 7 term you use, associates, go and take training to be certified 8 to sell firearms? 9 A That's correct. 10 Q In reviewing -- have you reviewed this document, 11 Government's Exhibit 15? 12 A I did review it, yes. 13 Q Do you see any errors that your employee may have made in 14 the document? 15 A No. 16 Q Have you looked at Exhibit 15 in its entirety? 17 A On this form? 18 Q Yes. 19 A Yes. 20 Q Okay. 21 be on one? 22 A On -- yes. 23 Q No. 2, on Exhibit 15, the current address is there as it's 24 supposed to be? 25 A Mr. Gonzales, from what I understand, your employees, or the So the transfer name is on there as it's supposed to Correct. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 30 of 41158 1 Q Three, 810, everything has been noted as supposed to be 2 according to training? 3 A Correct. 4 Q In acceptance under Academy. 5 13 have been satisfied with some sort of an answer that is 6 acceptable to Academy? 7 A Correct. 8 Q Okay. 9 transfer, these signatures is there as it's supposed to be? In fact, 11 through A through Let's go to the next page, page 2 of 6. The 10 A Yes, sir. 11 Q With the date? 12 A Yes, sir. 13 Q And all the appropriate boxes that were or should have been 14 filled for the proper sale of this firearm has been satisfied by 15 Academy? 16 A Correct. 17 Q Okay. 18 manufacturer and/or importer of the manufacturer and importer 19 are different. 20 A The firearm -- federal firearm license. 21 Q That's correct. 22 individual who's been trained by the FFL, federal firearms and 23 license people to sell firearms? 24 A Yes. 25 Q In fact, who are they, if I may? Let's look at the next page, 3 of 6. The The FFL, which is -- stands for what now? And would you consider yourself an What do they do? Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 31 of 41159 1 A The federal firearm license or ATF is who we go through to 2 get the -- 3 Q So you take courses from them to sell firearms? 4 A We went through an interview process. 5 Q And you are certified -- 6 A To sell firearms. 7 Q -- to understand the proper sale of a firearm; am I correct? 8 A Yes, sir. 9 Q Do you see anything unusual with page 3 of 6 as out of the 10 ordinary? 11 A No, sir. 12 Q It was all this Exhibit 15 done in the normal course of 13 business? 14 A Yes, sir. 15 Q Okay. 16 been satisfied and has met the requirements of a proper sale of 17 a particular 270? 18 A Yes, sir. 19 Q Okay. 20 considered a mid -- mid range firearm. 21 A 22 firearm -- we do have firearms. 23 cost, and we do have firearms for greater cost. 24 Q 25 Would you agree that this is a firearm under $300? So would you look at this and say that everything has Now, I believe you said this rifle could be What does that mean? I -- the question was we're referring to the value of what a Okay. We do sell firearms for less There were two firearms, this 15 being the 270. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 32 of 41160 1 A Yes, sir. 2 Q And did it have a scope in it? 3 A Yes, sir. 4 Q Okay. 5 Academy that's less than this particular firearm? 6 A 7 do have rifles that are less in value, but I can't -- of 8 specific calibers, I could not tell you. 9 Q Now, is there any 270 firearm that's for sale for Not recalling the -- the current inventory stock I have, we We're talking about a 270 now. I know you have some $99 10 ones. 11 a scope on it, would you agree with me that this is probably the 12 most inexpensive 270 that the Academy sells? 13 A 14 information of my inventory, I do know that we have a -- 15 Q Okay. 16 A -- 270 for about 249. 17 Q Okay. 18 A But, yes, it would be an average range. 19 Q 249, and then with a scope, maybe 300? 20 But respectfully, sir, for a 270 deer rifle, and this has Again, sir, I could -- without having the factual THE COURT: He's already answered your question, 21 Mr. Gamez. 22 BY MR. GAMEZ: 23 Q 24 this is considered a low range firearm? 25 A Okay. Would it be -- okay. I would -- specific caliber? Would it be fair to say that Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 33 of 41161 1 Q 270. 2 A 270. 3 Q Deer rifle. 4 A Again, I would have to go to -- 5 Q I understand. 6 A -- the inventory. 7 Q So would it be fair to say then that you're not sure at this 8 time then, to be more accurate, whether it's a low range or mid 9 range 270 firearm? I would -- 10 A No, I'm sure that that would be a mid range firearm. 11 have firearms for less value, and we do have far more expensive 12 at a 270. 13 Q 14 Do you see anything that has been misdiagnosed, shall we say, or 15 misinformed or any problems? 16 written lack of information on Exhibit 20, Government's 17 Exhibit 20? 18 A No, sir. 19 Q Okay. 20 them to be appropriate and accurate for sale? 21 A Yes, sir. 22 Q You don't see anything wrong in them; am I correct? 23 A No, sir. 24 Q Okay. 25 Look at Question 13. Okay. Let's look at Exhibit 220. We do Excuse me, Exhibit 20. Do you see any problems with any So both transactions, both 15 and 20, you believe Now, Exhibit 20, which is similar, the same 4473. State of residency or residence. "The Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 34 of 41162 1 state in which an individual resides. 2 MS. BETANCOURT: An individual" -- Your Honor, I'm sorry. 3 object at this time. 4 been highlighted. 5 that a substituted exhibit, Your Honor? 6 what Mr. Gamez is showing the jury. 7 8 THE COURT: I'm going to I wasn't aware that we had a form that had Is that the same -- is that an exhibit, or is I'm not clear as to Mr. Gamez, do not show or publish to the jury any document that has not been admitted in evidence. 9 MR. GAMEZ: Yes, Judge. 10 THE COURT: If you're asking for a substitution, you 11 need to inquire of the Court whether it's acceptable to use a 12 substitute rather than the exhibit that has been admitted. 13 MR. GAMEZ: I pulled my own. The government -- what the 14 government gave me instead of what's here, Judge, in error. 15 understand. 16 THE COURT: I All right. 17 BY MR. GAMEZ: 18 Q 19 you understand Question 13, sir? 20 A I can't see it on my screen. 21 Q What does the state of residence mean? 22 A That would be the state that one resides in. 23 Q Okay. 24 resident alien, where it says sale of firearms to a legal alien, 25 does he have to be a resident of the State of Texas? Let's look at Question 13 in Government's Exhibit 15. Do The state of residence. If someone is -- let's go to 20C. If someone is a Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 35 of 41163 1 A To purchase a firearm? 2 Q Yes. 3 A They would have to be a resident of the State of Texas 4 depending on the firearm which is being purchased. 5 Q 6 provide a government ID? 7 A Correct, like a -- it would be an ID, a Texas ID. 8 Q Okay. 9 A Correct. 10 Q Are these two separate documents? 11 A They would be two separate documents. 12 Q Okay. 13 government ID like a driver's license or some other -- I believe 14 you said a passport of some sort? 15 A Correct. 16 Q Okay. 17 A Yeah, a utility, like a phone bill. 18 phone bill wouldn't be -- wouldn't be accurate. 19 bill would be. 20 Q 21 acceptable documentations to prove a 90-day continuous 22 residency, sir, for the jury? 23 A 24 needs to be magnified a little bit. 25 Q Okay. I believe you stated that the ATF rules are that he And a permanent resident card? So you have a permanent resident card and a And he has to be land tied. A phone bill. Let's look at 20. Did you say that? In other words, a cell But a utility What are some of the If -- I can't see it because it's blurry, or if it just Okay. I couldn't see it either unless I had glasses or so. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 36 of 41164 1 What about now? 2 A 3 rent receipts, mortgage payments, lease agreements, personal 4 property tax, documents issued by federal government, state or 5 local government. 6 government agencies, insurance policies, bills with current 7 address or major credit card bills. 8 Q 9 tax bill on that house, would that be considered an acceptable Okay. It's good. Utility bills, current bank statements, And it's first class mail issued by So if someone is buying a house or owns a house and has a 10 evidence for you to -- 11 A Property tax? 12 Q Yes. 13 A Yes. 14 Q Okay. 15 be correct? 16 A Correct. 17 Q His wife's apartment or apartment complex bill, utility 18 bill; if they lived together, would that be acceptable? 19 A No. 20 Q Okay. 21 A It would have to be the purchaser of the firearm. 22 Q A tax payment of some sort or a credit card of some sort? 23 A Under that individual's name, yes, sir. 24 Q Okay, sure. 25 about this sale? Or a credit card bill, I believe it says. Would that Credit card bills. His wife's? No, sir. Now, sir, do you have any personal information Were you involved at all in this sale? Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 37 of 41165 1 A No, I was not. 2 Q In reviewing this document in Exhibit -- Government's 3 Exhibit 15 and 20, do you see anything wrong with those 4 documents? 5 A 6 7 No, I do -THE COURT: Too vague. You don't have to answer the question. 8 MR. GAMEZ: Nothing further, Judge. 9 MS. BETANCOURT: 10 THE COURT: 11 MS. BETANCOURT: Your Honor, if I may briefly? Yes. 12 Thank you. REDIRECT EXAMINATION 13 BY MS. BETANCOURT: 14 Q 15 documentation that Mr. Gamez pointed out involving the sale to 16 the 20C question. 17 form, in fact, asks that question here in the front. 18 Mr. Gamez asked you, it says, "What is your state of residence?" 19 That you give the state in which you live in. 20 Texas represents there? 21 A That's correct. 22 Q Okay. 23 States citizen?" 24 A That would be correct. 25 Q Okay. Mr. Gonzales, I want to go back for just a second over the If the person is not a U.S. citizen, the No. 1, as Is what that the And on this form, No. 14, it says, "Are you a United That person marked yes? But if we go back to our blank form here, Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 38 of 41166 1 Exhibit No. 14, if that person was not a U.S. citizen, then what 2 information are you required to collect? 3 A Their alien registration number. 4 Q And that's what you document there in No. 15? 5 A That would be correct. 6 Q And then from that point on, if we go then to the 20C 7 question, what Mr. Gamez and I both have been asking you 8 questions about, under 20B -- I'm sorry, under 20C then, this is 9 the documentation that you're referring to. You would actually 10 have to document that in the form? The person would have to 11 present it to you, and then Academy would then document it in 12 this form, this 90 day. 13 here, the question -- the form requires you to type and dates of 14 documents that establish the 90-day residency. 15 then put in this form here? 16 A 17 from PUB, for example, then we would put the Brownsville Public 18 Utilities electric bill and then the dates of the bills. 19 Q 20 that information? 21 A That is correct. 22 Q And then you take everything that's in this form, this 23 entire form, including that documentation that would show the 24 utility bills and all the other information, and then you're 25 required by ATF to keep this form? Under 20C, what would you document We would put the form of bill. What would you If it was a utility bill And so they're actually physically required to bring you Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 39 of 41167 1 A That is correct. 2 MS. BETANCOURT: 3 THE COURT: Mr. Gamez? 4 MR. GAMEZ: Nothing further, Judge. 5 MS. BETANCOURT: 6 7 8 No further questions, Your Honor. Your Honor, may this witness be excused? THE COURT: Mr. Gamez, is there any problem with the witness being excused? 9 MR. GAMEZ: No, Judge. 10 THE COURT: All right. Then, sir, you're excused. And 11 from now on any witness that you would like to have the Court 12 order to remain on standby, just speak up, because otherwise I 13 will be excusing the witnesses as their testimony is completed. 14 15 16 17 18 Call your next witness. MR. PONCE: Your Honor, our next witness will be Gustavo Gus Gonzalez. THE COURT: Is this the witness who needs an interpreter? 19 MR. PONCE: No, Your Honor. 20 THE COURT: I'm sorry, sir. 21 THE WITNESS: 23 THE COURT: 25 Have a seat in the witness chair to my right. 22 24 Go ahead. Good afternoon, Your Honor. Good afternoon. And speak into the microphone so that your voice is amplified. THE WITNESS: Yes, ma'am. Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 40 of 41168 1 MR. PONCE: May I proceed, Your Honor? 2 THE COURT: Yes. 3 GUSTAVO GONZALEZ, 4 the witness, having been previously duly cautioned and sworn to 5 tell the truth, the whole truth and nothing but the truth, 6 testified as follows: 7 DIRECT EXAMINATION 8 BY MR. PONCE: 9 Q Sir, would you state your full name. 10 A Yes, sir. 11 Q And how are you employed, sir? 12 A I'm a special agent with Homeland Security Investigations. 13 Q Where are you assigned? 14 A Harlingen, Texas, office, sir. 15 Q Are you assigned to any specific division within that or 16 specific group as part of your duties? 17 A 18 Enforcement Security Task Force, and my group investigates 19 weapons trafficking. 20 Q You said Border Enforcement Security what? 21 A Task Force. 22 Q Task Force. 23 A That's correct, sir. 24 Q How long have you been with this task force BEST? 25 A Three years, sir. Yes, sir. Gustavo Gonzalez. I'm assigned to the Rio Grande Valley Border So it's known by the acronym BEST, B-E-S-T? Case 1:12-cr-00472 Document 102-3 Filed in TXSD on 01/22/13 Page 41 of 41169 1 Q And this task force is set up for what purpose, sir? 2 A We interdict -- our specific group interdicts firearms and 3 ammunition that gets smuggled from the United States to Mexico. 4 Q 5 with other agencies as part of this task force? 6 A Yes, sir. 7 Q What are the other agencies? 8 A Assigned to our group, we work with Border Patrol. 9 with ATF quite a bit. So you work with -- since this is a task force, you work We work And we regularly work with state and 10 local police departments all over the Rio Grande Valley. 11 Q When you say ATF, that's also an acronym for what? 12 A Alcohol, Tobacco, Firearms and Explosives, sir. 13 Q It's actually ATF and then an E because it's Alcohol, 14 Tobacco, Firearms and Explosives? 15 A That's correct, sir. 16 Q Before you joined the BEST Task Force, what were you doing, 17 sir? 18 A 19 inspector. 20 Q For what period of time? 21 A I was employed there from September 2002 to August 2009. 22 Q About a seven-year period? 23 A Correct, sir. 24 Q Let's get back then to your assignment with the BEST Task 25 Force. I was employed with Customs and Border Protection as an You said that the purpose of that task force was to Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 1 of 41 170 1 interdict firearms and ammunition. Is that what you said? 2 A That's correct, sir. 3 Q How is it that the task force that you're in goes about 4 interdicting firearms and ammunition? 5 A 6 are the authorized retailers of firearms. 7 that sell ammunition and firearms as well, and we conduct 8 surveillance to see who's coming in and out. 9 any other purchases that we think need to be investigated. We spend a lot of times at federal firearms licensees, which Sporting goods stores Large purchases or 10 Q And this is done where? 11 A At almost every sporting goods store, gun store across the 12 Rio Grande Valley. 13 Q 14 Academy here in Brownsville, Texas; is that correct? 15 A That is correct, sir. 16 Q Academy No. 30? 17 A I'm not sure what the number is, sir. 18 Q Okay. 19 have you conducted surveillance or operations there at Academy? 20 A 21 surveillance there at least once a month. 22 Q Okay. 23 A Myself, other agents assigned to our group conducting 24 surveillance for three to five days, maybe a week at a time at 25 certain stores or certain areas, yes, sir. Okay. And in particular, that would then include the As part of this task force, sir, about how many times At that specific Academy, I could estimate that we conduct And generally that involves you and other agents? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 2 of 41 171 1 Q And just in general, how does the typical surveillance 2 operation or investigation that's being conducted by the task 3 force operate? 4 A 5 officer in the store acting as a shopper, just looking around, 6 keeping an eye on the firearms, ammunition area. 7 shopping, watch people make their purchases. 8 ammunition purchases or firearms sales, we keep an eye on on the 9 transaction to determine if it requires further investigation or It will usually get initiated with an agent or a task force Watch people Any bulk 10 not. 11 Q 12 you use the word bulk, bulk ammunition sales. 13 things, at least one of the things you're looking for, to see 14 when an individual purchases, let's say, instead of one or two 15 boxes of ammunition, they purchased 30 boxes or 50 boxes or 16 whatever the case may be? 17 A That's correct, sir. 18 Q What about weapons? 19 A Weapons as well. 20 purchases of firearms, any type of firearm. 21 the transaction. 22 regularly approach the gun counter, browse, look, choose a 23 firearm, fill out a form and make their purchase. 24 anything that deviates from that as far as looking at the 25 firearms, going away, meeting with somebody else, returning, we Okay. And that's what I was going to ask you about, because So these are the We do keep an eye out for multiple Actually we watch Usually a purchaser of a firearm will If there's Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 3 of 41 172 1 keep an eye on those type of transactions more closely. 2 Q 3 person going in there and buying, let's say, 30 rifles if they 4 want to buy 30 rifles? 5 A No, sir, there's nothing illegal about that. 6 Q So when you're in -- and just generally speaking, when 7 you're in an operation where you're doing this surveillance, is 8 every member of that task force within the Academy, or are they 9 situated elsewhere or -- Okay. And, of course, there's nothing illegal about a 10 A We'll have -- 11 Q -- where are the others? 12 A We'll have one or two agents in the store and with the 13 remaining agents that are participating in the operation parked 14 in the parking lot, down the street, somewhere in close 15 proximity to respond if we feel we need to investigate something 16 further. 17 Q 18 investigation and maybe recovery of weapons or ammunition? 19 A Yes, sir. 20 Q And other times it doesn't? 21 A That's correct. 22 Q And you say you spend about approximately how many hours 23 doing that? 24 A 25 three to five days at a time at least once a month conducting And sometimes the surveillance leads to further When we -- when we conduct these operations, we'll spend Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 4 of 41 173 1 these surveillance operations at different stores across the 2 Valley. 3 Q Licensed federal -- licensed firearms -- 4 A That's correct. 5 Q I'm going to ask you, sir, were you conducting such a 6 surveillance or operation on December the 5th of 2011 -- 7 A Yes, sir. 8 Q -- here at the Academy in Brownsville, Texas? 9 A Yes, sir. 10 Q And first of all, what was the purpose of you all's or you 11 conducting this surveillance along with your task force members? 12 A 13 a couple of individuals that we had been informed had been 14 making bulk ammunition purchases around the different Academy 15 stores in the Rio Grande Valley. 16 Q 17 that time for that purpose? 18 A 19 visiting an Academy store around that time period, so we were 20 actually hoping to get lucky and see them. 21 Q 22 within the store? 23 A Yes, sir, I was. 24 Q And what part of the store were you in? 25 A I was walking around the firearms and ammunition area of the On that particular surveillance, we were actually targeting So you happened to be there at this particular Academy at That's correct. Okay. We had been informed that they would be So at about 1:00 or so in the afternoon, were you Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 5 of 41 174 1 Academy store. 2 Q Obviously in plain clothes, pretending to be a customer? 3 A Yes, sir. 4 Q But close enough to kind of keep watch at the gun counter? 5 A Yes, sir. 6 Q At about 1:00 p.m., what, if anything did you observe? 7 A I walked by the -- that department of the Academy store, and 8 I recognized an individual browsing the firearms. 9 Q Okay. 10 A Yes, sir. 11 Q Who was that person? 12 A It was Mr. Manuel Pena. 13 Q That's Manuel Eduardo Pena? 14 A That's correct. 15 Q And how is it that you recognize this person? 16 A I worked with him for several years with Customs and Border 17 Protection, so I -- he was easily identifiable to me. 18 Q So you knew who he was? 19 A Yes. 20 Q Did you go up to this person and greet him, exchange 21 pleasantries? 22 A No, sir. 23 Q Why not? 24 A I just walked by the area, and I was keeping an eye out for 25 the individuals I was looking for. And did you recognize this person? At that time I just didn't Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 6 of 41 175 1 approach him. 2 Q 3 certainly did not include Manuel Pena, did it? 4 A No, sir. 5 Q Did Manuel Pena see you? 6 A Not that I know of, no, sir. 7 Q What did you see him doing at that time? 8 A The first time I walked by, it appeared that he was browsing 9 the firearms. And, of course, the individual you were looking for And when I went my way back through that area, he 10 appeared to be filling out a form to purchase a firearm. 11 Q 12 form? 13 A Yes. 14 Q Okay. 15 others buying weapons and when they fill out forms or how they 16 perhaps fill them out; is that correct? 17 A Yes, sir. 18 Q So to you, it appeared that he was filling out that ATF 19 form? 20 A That's correct. 21 Q Okay. 22 you pass by or watch from a distance? 23 A 24 and then on my return. 25 Q Was he by himself when he appeared to be filling out this And you're familiar with the -- the activities of And so about how many times did you see him there as It was really -- it was twice. On one -- my first passing, When you pass that first time and then even the second, how Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 7 of 41 176 1 close or how far were you from him? 2 A 3 possibly. 4 Q That end over there? 5 A That's correct. 6 Q So you're talking about how many feet in your estimation? 7 A 50 feet possibly. 8 Q Okay. 9 suspicious at that point that you would then begin focusing in Maybe the distance between here and the end of the jury box Was he doing anything that to you would be considered 10 on him? 11 A No, sir. 12 Q Did you eventually spot the individuals that you were 13 actually there to surveil? 14 A No. 15 Q Then let me ask you. 16 What other things did you see him do, and then what did you do 17 in response? 18 A 19 department of the store, I saw him. 20 returned through that same section of the store; and at that 21 time it appeared he was filling out the form. 22 thereafter, maybe a minute or two, I exited the store. 23 the store, and Mr. Pena was still inside. 24 Q 25 counter? You said you saw him about twice. In the store, like I said, my first passing through that A few minutes passed, and I Shortly I left When you saw him the first time, he was already at the gun Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 8 of 41 177 1 A Yes. 2 Q You don't know how long he had already been there? 3 A No, sir. 4 Q So you exited the store and then? 5 A And I went and took my place or surveillance in the vehicle, 6 in my parked vehicle in the parking lot. 7 Q Where was it in relation to, let's say, the entrance, exit? 8 A If you're walking out of the store, it was the very first 9 row that faces the store on the right side. It was maybe five 10 or six vehicles down. 11 Q And you get into your car? 12 A Yes. 13 Q Are other members of the task force still inside the store, 14 are they outside? 15 A I believe they're outside. 16 Q Are you-all in communication with one another during this 17 time that you-all are on surveillance? 18 A 19 Mr. Pena. 20 Q Who is that? 21 A His name is Omar Garza. 22 Q When did you speak to him? 23 A Shortly after returning to my vehicle, I mentioned that -- 24 that I had seen Manny, which is what we had called him when we 25 were co-workers; that I had seen him purchasing a firearm. I did speak to one other agent that is also familiar with Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 9 of 41 178 1 Q You got in your vehicle, and then what? 2 A I got in my vehicle, and I waited for the targets that we 3 were looking for to hopefully show up. 4 Q 5 people going? 6 A Correct. 7 Q What do you see? 8 A At that point, I mean, a few minutes pass. 9 Mr. Pena exit the store, exit the Academy store. So you're looking around in the parking lot, people coming, I end up seeing 10 Q Is he pushing anything? 11 A He's pushing a shopping cart, and with -- contained in the 12 cart, what appeared to be a cardboard box that looked to me like 13 a rifle box. 14 Q Why do you say that? 15 A Because that's one thing we look for when we're conducting 16 our surveillance and nobody's in the store, for either cardboard 17 boxes of ammunition or the actual rifle boxes exiting the store. 18 Q 19 that correct? 20 A 21 identifiable to me as firearms inside is what we specialize in 22 investigating. 23 Q Do you see where he heads? 24 A He walks through the parking lot almost directly in front of 25 the Academy store to a little white Chevy Colorado that's parked And if it's a rifle box, it has a peculiar configuration; is The length, width and shape of the box is easily Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 10 of 41179 1 nearby. 2 Q 3 truck? 4 A A small pickup truck, correct. 5 Q With a bed on the back? 6 A Open bed in the back, yes. 7 Q So you see him approach this white Colorado, and then what? 8 A I see him wait there. 9 the vehicle, and he just appears to be waiting. When you said a Chevy Colorado, you're talking about a His shopping cart is at the rear of 10 Q How long does he wait before you see him do something or 11 other? 12 A 13 close attention to the time because it didn't strike me as odd 14 at the time. 15 Q After a minute or two, what do you see him do? 16 A After a minute or two, I see him place the cardboard box, 17 the rifle box in the bed of the truck. 18 Q And then? 19 A Within seconds of that or it could have been simultaneously, 20 I notice another gentleman, another individual walking towards 21 the same Chevy Colorado and approach the driver's side. 22 Q The driver's side of that truck? 23 A The driver's side -- the individual opens the driver's door 24 and takes a seat in the driver's seat. 25 the vehicle, hands something to the individual. It may have been a minute or two. I didn't pay a lot of Mr. Pena walks around There's some -- Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 11 of 41180 1 Q And to you, what did it appear to be? 2 A It appeared to be a little white piece of paper, what I was 3 assuming at the time to be a receipt with possibly change inside 4 folded up in the receipt. 5 Q You saw the actual exchange? 6 A Yes. 7 Q And then what? 8 A There was -- maybe some words were exchanged. 9 there for a moment. Mr. Pena was And Mr. Pena returned to his shopping cart 10 and started walking towards me, which, in reality, was towards 11 his vehicle. 12 Q 13 and the kind of work you do, did you think was going on? 14 A 15 regularly, I -- I was watching what appeared to be a straw 16 purchase of a firearm. 17 Q Because? 18 A Because of the manner in which it was exchanged, the meeting 19 in the parking lot, and the actual purchaser of the firearm 20 departing, leaving the firearm in one place and going away from 21 it. 22 Q So what did you do? 23 A Since I was on surveillance, I had a camera easily 24 available, and I started snapping pictures. 25 Q He was parked very close to me. At that point then, what, at least based on your training At that point based on what we see and what I investigate So you didn't snap any pictures as Manuel Pena was leaving Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 12 of 41181 1 the Academy headed toward that white Colorado, correct? 2 A No, I did not. 3 Q So at what point did you actually begin then trying to take 4 photos? 5 A 6 placed the rifle box in the bed of the truck and approached the 7 driver's side where I thought an exchange may have been taking 8 place. 9 Q I believe I started snapping pictures when -- right after he Okay. And are you in communication with -- with the other 10 individual that you had contacted earlier, Omar Garza? 11 A 12 with Mr. Garza. 13 Q 14 Pena drop this or leave that box there in the bed of the truck? 15 A 16 the rear window of my truck snapping pictures, and I didn't 17 communicate with Agent Garza until I was again seated in the 18 driver's seat of my truck. 19 Q What did you tell him? 20 A I believe I told him, "I think Manny just made a straw 21 purchase." 22 Q Okay. 23 A Mr. Pena, by chance, was parked not right next to me, maybe 24 two cars down, and I -- I dug down in my vehicle because he 25 appeared to be walking right back towards me. Yes, I believe I was in radio or push-to-talk communication Were you talking to him during the time that you saw Manuel At that exact moment, I was not. I was leaning over towards Those are -- I think those were my exact words. What happened next? And he approached Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 13 of 41182 1 his vehicle. 2 shopping cart, and he -- he left the parking lot. 3 Q 4 well, a partial plate or a full plate on the white Colorado 5 where the weapon was placed? 6 A 7 that I had just taken, and I was able to gather a license plate 8 from one of the angles of the photos I took. 9 Q Okay. He might have had another bag with him in his Were you able to get information or at least some -- Yes, sir. I started flipping through the camera pictures So now that Manuel Pena has gotten into his vehicle and 10 left, what do you do? 11 A 12 him know that I may have just seen a straw purchase and that he 13 was a former co-worker of mine. 14 Q 15 an inspector? 16 A 17 But as far as I knew at that time, he was still an inspector. 18 Q 19 that? 20 A 21 Previously he worked for the Office of Professional 22 Responsibility. 23 Q And his office is in Harlingen, correct? 24 A That's correct. 25 Q So you've told him about what you suspect based on what At that moment, I believe I contacted my supervisor to let And do you know that he was still associated with the -- as I believed he was at the time. I wasn't 100 percent sure. Did you -- you said you called your supervisor. His name is Edward Bredhoft. Who is He's now my group supervisor. Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 14 of 41183 1 you've seen and then what? 2 A 3 Personal Responsibility was there in the office, and he told 4 that agent that I would be calling him with some information. 5 Q 6 remain there at the Academy, or did you do anything else after 7 this? 8 A 9 Academy, what we did next was we contacted the -- all the I believe one of the other agents with the Office of Okay. Did -- did you and the other agent, Omar Garza, Since we were unable to follow the firearm out of the 10 bridges in Brownsville just to make sure that since our primary 11 responsibility is weapons trafficking, our concern is firearms 12 going into Mexico. 13 gave a description of the vehicle, the white Chevy Colorado, 14 that it may contain a firearm, just to keep an eye out for it 15 exiting the country through one of the bridges. 16 Q In case it was going to Mexico? 17 A In case it was going to Mexico. 18 Q And once you've done that, what else do you do regarding 19 trying to search for this truck or this individual? 20 A 21 on license plates and came up with an address for the registered 22 owner of the white Chevy Colorado. 23 Q Was that address an address here in Brownsville? 24 A Yes. 25 Q Was it an apartment complex or regular residence? So we contacted the bridges to advise. We After coming up with the full license plates, we ran queries Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 15 of 41184 1 A It was at the Borders Apartment Complex. 2 Q So having now obtained that information, what do you-all do? 3 A At that point, I had been in contact with the Office of 4 Personal Responsibility, and they were going to send an agent 5 out to respond to our information. 6 Q Let me -- 7 A Excuse me. 8 Q I'm sorry. 9 A Yes, sir. 10 Q When you say they were going to send an agent out, an agent 11 out where? 12 or to some other location where you were going to meet this 13 agent or what? 14 A 15 Brownsville. 16 agent arrived in Brownsville. 17 Q And who showed up? 18 A I believe it was Agent Tommy Morrisey. 19 Q Okay. 20 A He met with myself. 21 Bredhoft, had also made his way to Brownsville, and we all met 22 up there in Brownsville. 23 Q 24 anything, y'all were going to do? 25 A Yes. Okay. By chance -- Let me stop you there. To Academy, because you-all were still at Academy, We would be in contact, and we would meet somewhere in We would decide as far as where to meet when the And he met with you and Omar Garza? And at that time my supervisor, Edward Did you-all formulate some kind of plan on what, if, Yes, we -- since we had a registration information on the Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 16 of 41185 1 white Chevy Colorado, we went to that address to see if we could 2 locate the vehicle. 3 Q And you-all went in one vehicle, separate vehicles or what? 4 A Separate vehicle, yes. 5 Q Did you-all find that address? 6 A Yes. 7 Q And what did you do once you-all got to that location? 8 A We parked around that complex where we could have visual of 9 the complex or the actual apartment to which that vehicle was 10 registered. And at that time, the vehicle was actually parked 11 out near the apartment. 12 Q The white Colorado truck that you had seen? 13 A Yes. 14 Q By the way, I failed to ask you this. 15 Manuel Pena leave the parking lot there at Academy, did you take 16 note of what vehicle he was driving? 17 A I did. 18 Q What was that? 19 A It was a white sedan, a four-door sedan with dark colored, 20 maybe a maroon canvas top. 21 year. 22 Q 23 Borders. 24 What then? 25 A But when you saw I got a description of the vehicle. I didn't get a make and model or a I just got a general description of the vehicle. Let me go back to the -- to the apartment there at The Y'all locate the apartment. You locate the truck. We maintain surveillance on the apartment until an agent Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 17 of 41186 1 with OPR or the Office of Personal Responsibility arrives, and 2 we let them know that we have located the vehicle, we've located 3 the apartment, and we're actually standing by for instructions 4 to decide how they want to proceed with this. 5 Q 6 individual that had driven that truck to the apartment? 7 A 8 but we did see the individual that I recognized as the driver of 9 the Chevy Colorado exit his apartment up on his balcony with a Okay. Yes. While you-all are there, do you-all see the I don't have an exact time of how long we were there, 10 young man and a rifle. 11 Q 12 talk to that person right then and there? 13 A No, sir. 14 Q Why not? 15 A At that point -- at that point we weren't sure exactly how 16 the Office of Professional Responsibility wanted to handle that 17 case. 18 Q 19 investigation at this point; is that correct? 20 A That's correct. 21 Q And you did say that Agent Tommy Morrisey had shown up? 22 A He had responded, and I believe Agent Deans, Michael Deans 23 had also -- was also en route to Brownsville. 24 Q 25 whatever they might decide? Did you-all make an effort to approach that apartment and Okay. You weren't in charge of the case or the further So now you were, in effect, essentially assisting with Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 18 of 41187 1 A Basically at that point, we were assisting and handing off 2 the investigation, and they could proceed as they thought 3 appropriate. 4 Q Okay. 5 A No, sir. 6 Q Did -- at some point in time, did you-all -- did you leave 7 the area because you've concluded with surveillance? 8 A 9 possession of the firearm, a young boy, they were out on the Yes. So no -- no approach was made that day? After we saw the gentleman that we thought took 10 balcony with the firearm. They went back inside. A few minutes 11 later they came downstairs and left in a different vehicle 12 empty-handed, carrying no firearm, so we were -- we were safely 13 assuming that the firearm was still in the apartment, and the 14 individual that had taken possession had left the area. 15 that point, we met up with Agent Deans across the street at a 16 restaurant. 17 Q 18 what you had seen earlier at Academy? 19 A Yes. 20 Q Okay. 21 had, what did you do next? 22 A 23 don't remember what time, and we terminated the operation for 24 the night. 25 Q And at So did you-all fill him in, debrief with him and tell him Once you had finished giving him the information you At that moment it was -- it was nighttime. It was dark. We were done. Is that the extent of your involvement in this case and I Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 19 of 41188 1 surveillance and whatnot? 2 A 3 Academy store in Brownsville, Texas, and requested video of the 4 transactions that we had seen the day before. 5 Q And you went with somebody else? 6 A Yes. 7 Sanchez. 8 Q 9 the wrong date when they gave you that video? The very next morning, I contacted or I went back to the I went with Agent Garza and an Agent Sanchez, Romulo Did you later find out that Academy had copied or recorded 10 A No. I -- 11 Q You didn't review -- 12 A I didn't know if -- I was -- they gave me a copy of a CD, 13 and I took that as what it was -- I thought it was supposed to 14 be. 15 Q But you handed that over to the case agent? 16 A Yes. 17 Q Okay. 18 A That was the extent of my involvement in this. 19 Q Let me just show you a few exhibits that are already 20 admitted. 21 4. 22 see it there on your screen. 23 A Yes, sir. 24 Q This is Exhibit No. 1, as you can see by looking at the 25 sticker here. That was the extent of your involvement in this? These exhibits I'm going to show you are 1, 2, 3 and Let me show you exhibit number -- I don't know if you can You see that? Can you, sir? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 20 of 41189 1 A Yes. 2 Q Okay. 3 A Yes, sir. 4 Q Okay. 5 Exhibit No. 1 is? 6 A 7 that moment is when I felt that there was an exchange being made 8 with a firearm, and I started taking pictures. 9 just placed the rifle box in the bed of the pickup truck and was Yes. You've seen this particular exhibit before, right? Could you tell the members of the jury what I took that photo. That is when -- at -- right at Mr. Pena had 10 approaching the driver's side. 11 Q 12 Colorado that you mentioned? 13 A Yes, sir. 14 Q This shopping cart is whose shopping cart? 15 A Mr. Pena's shopping cart. 16 Q Does there appear to be something in there also? 17 A It looks like maybe there's another bag in there. 18 Q But the box containing the weapon was no longer here on the 19 cart, correct? 20 A No. 21 Q But back here in the bed? 22 A In the bed of the truck, yes. 23 Q Who do we see here walking toward the person who appears to 24 be sitting in the driver's side? 25 A So let me just zoom in just a bit. So this is the white He had already placed it in the truck. That is Manuel Pena, sir. Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 21 of 41190 1 Q This individual that we're pointing to is Manuel Pena? 2 A Yes. 3 Q Okay. 4 said that -- or correct me if I'm wrong, that there was no one 5 in the truck. 6 driver's side arrived shortly thereafter or almost 7 contemporaneous? 8 A 9 arrived there. Now, when Manuel Pena first arrived at the truck, you That this gentleman that's now seated at the Yes, correct. 10 Q 11 now you've -- you feel that there's something going on here, 12 correct? 13 A Yes. 14 Q And this was done on -- photo was taken on December 15 the 5th of 2011? 16 A Yes, sir. 17 Q Last year? 18 Okay. There was nobody at the truck when Mr. Pena So now this is the first photo you took, because by I'm going to show you Government Exhibit No. 2. Do you see 19 the label here? 20 A Yes, sir. 21 Q Okay. 22 A That appears to be Mr. Pena with his shopping cart walking 23 away from the white Chevy Colorado. 24 Q Without the rifle? 25 A Without the rifle. What is Government Exhibit No. 2? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 22 of 41191 1 Q Now, you say it appears to be. Well, does it appear to be, 2 or is it him? 3 A That is Mr. Pena. 4 Q And how is it that you're able to take these photographs if 5 you're sitting within your car? 6 A 7 stomach on the seat facing the back window. 8 Q While you're sitting in the driver's side of the vehicle? 9 A On the driver's side of the vehicle. I pull the seat back almost laying down and was on my I just recline the 10 seat as far as possible, turned over on my stomach and was 11 facing my rear window. 12 Q 13 here? 14 A Yes, sir. 15 Q And what is Exhibit No. 3, sir? 16 A It's Mr. Pena. 17 wasn't sure where, but he was walking towards his vehicle parked 18 near mine. 19 Q 20 direction. 21 windows or -- 22 A 23 know if he was looking at me or just in my general direction. 24 Q Okay. 25 A That's the truck, yes. I'm going to show you Exhibit No. 3. Do you see the label He's continuing walking. At that time I Now, he appears to be looking in the direction of -- your Do you know if he saw you, or do you have tinted I do have tinted windows, and at that point I really didn't Here in the back is the truck; is that correct? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 23 of 41192 1 Q Is that already beginning to pull out, as you can see by the 2 lights there, or -- 3 A Yes. 4 Q Does Manuel Pena continue walking past you, past where your 5 vehicle is? 6 A 7 right behind my vehicle. 8 Q And? 9 A And he's actually parked about two cars to my right. 10 Q And he got into his vehicle and left? 11 A He got into his vehicle and left, yes. 12 Q Let me show you Government Exhibit No. 4. 13 Government Exhibit No. 4. 14 A Yes, sir. 15 Q What is it? 16 A That is the white Chevy Colorado where Mr. Pena placed the 17 firearm, and it's reversing and driving away. 18 Q 19 license plate? 20 A Yes. 21 Q Of course, we can't see it here because it's kind of 22 blurred, correct? 23 A 24 picture gave me a full image of the license plate. 25 Q It looks like the brake lights are on. Yes, he continues walking in that same direction pretty much This is You can see that, correct? And you said that you had gotten a partial -- partial I believe a combination of this picture and the previous Okay. And this is the truck that you saw later that Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 24 of 41193 1 afternoon or even in the evening at the Border Apartments. 2 A 3 the little brown sticker that's on the tailgate there. 4 Q This one right here? 5 A Yes. 6 Q Now, sir, the -- oh, let me show you -- I'm going to show 7 you just Government Exhibit No. 26 just for demonstrative 8 purposes. 9 does something like this, this Exhibit 26 look familiar to you? Yes, sir. We recognized it with -- by the license plate and I'm not saying this is the box you saw there, but 10 A Yes, sir. 11 Q How so? 12 A That is the size, shape, approximate appearance box that I 13 saw in Mr. Pena's shopping cart. 14 Q 15 people carry out when they -- when they purchase rifles at 16 Academy and other places that sell rifles? 17 A Yes, sir. 18 Q I'm not saying this is the box because you don't know that. 19 You never took the box into your possession, correct? 20 A Correct. 21 Q Maybe this one, this one, or some other box, correct? 22 A Correct. 23 Q Sir, the individual that you saw there at Academy making 24 that purchase, that weapons purchase and then later putting that 25 firearm in the -- in the bed of that truck, is he in this And these are the kinds of boxes, similar boxes that you see Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 25 of 41194 1 courtroom today? 2 A Yes, sir, he is. 3 Q Could you please point him out to me and tell me where he's 4 seated, what he's wearing? 5 A 6 jacket, a white shirt, and I'm not sure what color tie that is. 7 He's at the very front of that table on the left. He's part -- he's seated to my left. 8 9 MR. PONCE: He's wearing a black Your Honor, for the record, the witness has identified the defendant, Mr. Manuel Eduardo Pena. 10 THE COURT: The record will so reflect. 11 MR. PONCE: I'll pass at this time, Your Honor. 12 THE COURT: Mr. Gamez? 13 CROSS-EXAMINATION 14 BY MR. GAMEZ: 15 Q Mr. Gonzalez, good afternoon. 16 A Good afternoon, sir. 17 Q Sir, you work for the Rio Grande Border Enforcement Task 18 Force? 19 A 20 assigned to the Rio Grande Valley Border Enforcement Security 21 Task Force. 22 Q 23 now, you testified? 24 A 25 trafficking, sir. We -- I work for Homeland Security Investigations, and I'm Okay. Now, the primary focus of your task force is what Our group specifically investigates firearms and ammunition Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 26 of 41195 1 Q 2 purchases. 3 A That a person purchases more than one firearm. 4 Q And then you said you look for someone that purchases more 5 than one firearm and then goes away and then later returns. 6 mean, what do you mean by that? 7 A No, negative, sir. 8 Q What is your target? 9 I believe you said you keep your eye out for multiple What does that mean? THE COURT: 10 THE WITNESS: Excuse me. What is -- Don't talk at the same time. I'm sorry, ma'am. 11 BY MR. GAMEZ: 12 Q What is it? 13 A Can you repeat the question, sir? 14 Q How do you target multiple purchases? 15 How do you target that? THE COURT: Please explain to the witness what you mean 16 by "target." 17 BY MR. GAMEZ: 18 Q 19 eye out for multiple purchases"? 20 A 21 one firearm at one time. 22 Q Why is that? 23 A That's one indicator -- that's one indicator to us that 24 sometimes, based on our experience, that -- well, actually we 25 don't know. Okay. I What do you mean, sir, when you testified, "I keep an We'll keep an eye out for somebody that purchases more than We -- we keep watching to see what they're going to Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 27 of 41196 1 do with them. 2 Q 3 look for weapons that are going to -- you're concerned about 4 weapons being bought in the United States and then sold or sent 5 to Mexico; is that correct? 6 A That's correct. 7 Q Okay. 8 that you were looking for Mr. Pena, for multiple purchases now, 9 is it? I believe you testified or you answered a question that you In this case, this is not a purchase of -- that day 10 A No, sir. 11 Q Okay. 12 on or about? 13 A Approximately. 14 Q Okay. 15 Mr. Pena. 16 A I believe I said that. 17 Q And you're uncertain whether he saw you or you saw him? 18 A I can see him. 19 Q You did see him? 20 A Yes. 21 Q Now, did you say hello to him? 22 A No. 23 Q Did he say hello to you? 24 A No, sir. 25 Q Did you pass by, you say, within some 50 feet? Now, you got there, being at Academy, some 1:00 p.m. Now, you say you walked by the area and you know Is that what you testified to? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 28 of 41197 1 A I'm estimating the distance between where I'm at now to the 2 end of the jury panel or the jury box, sir. 3 Q Okay. 4 A Behind him. 5 Q Okay. 6 this is the counter and I'm purchasing a firearm, there's only 7 some what, 20 feet distance between the counter and the actual 8 other counters? 9 and the other aisles. Did you pass by behind him or beside him? So if you know where -- the Academy, if I may. If That is the Academy firearm purchase counter Would you agree that there's only some 10 20 feet behind them as far as room? 11 A 12 jury is the gun counter, there are aisles perpendicular to it 13 that go farther than 20 feet. 14 Q Okay, sir. 15 A Yes. 16 Q There's the counter, an individual, an employee of Academy 17 is on the other side of this counter, where were you? 18 A To your rear, sir. 19 Q Over here? 20 A Possibly. 21 Q Okay. 22 down and actually are perpendicular to the counter of Academy? 23 A Yes. 24 Q Okay. 25 Mr. Pena with his back toward you and his -- on December No, sir. I would not agree to that. The setup is if the If I'm buying a firearm here -- Would you agree with me that the aisles go up and So were you in between one of the aisles and saw Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 29 of 41198 1 the 5th? 2 A 3 counter, and you can see the counters, the other shelves, and 4 it's open. 5 it's open, and you can see the whole gun counter from a 6 distance. 7 Q 8 walking -- 9 I was walking along the other aisle that you can see the gun There's a shelf with ammunition in the middle and If the aisles are perpendicular, are you saying you were THE COURT: Mr. Gamez, you have to stay at the lecturn. 10 If you want to have the witness draw an illustration for you, 11 you can do so. 12 where your voice is not amplified. 13 BY MR. GAMEZ: 14 Q 15 far as to show us where you were? 16 A I do not, sir. 17 Q If I give you a piece of paper, could you draw where you 18 were, where the counter was? 19 A But I do not want for you to be walking away Do you have anything to draw with, Mr. Gustavo Gonzalez, as I can try, sir. 20 MR. GAMEZ: If I may approach, Judge? 21 THE COURT: Yes. 22 THE WITNESS: 23 MR. GAMEZ: 24 THE WITNESS: 25 THE COURT: Thank you, sir. Yes, sir. Shall I proceed, Your Honor? Yes. Tell you what. Why don't we recess Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 30 of 41199 1 the jury for about 15 minutes. 2 Members of the jury, during this recess and any recess, you 3 are under my admonishment that you must not form or express any 4 opinion about the facts of this case, and you cannot do so until 5 it has been submitted to you for your deliberation. 6 Thank you. (Jury leaves courtroom) 7 THE COURT: All right. Thank you. Please the seated. 8 We're in recess. 9 Mr. Gamez, I invite you to avail yourself of the easel that 10 has paper where the witness can draw it. 11 can -- you can have him use the paper that you've provided him, 12 but I suggest that you have the witness make the drawing now 13 while the jury is in recess so we can go right into his 14 testimony when the jury returns. Thank you. 15 (Recess taken from 4:00 to 4:22.) 16 (Jury enters courtroom) 17 THE COURT: 18 All right. Thank you. Or if you prefer, he Please be seated. Mr. Gamez, you may continue. 19 BY MR. GAMEZ: 20 Q Mr. Gonzalez? 21 A Yes, sir. 22 Q I'll show you a diagram. 23 A Yes, sir. 24 Q Did you do this? 25 A Everything except the little people. Do you recognize it? Did you draw it? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 31 of 41200 1 Q What's that? 2 A Everything except the little people that are drawn. 3 Q Okay. 4 A Mr. Pena. 5 Q Okay. 6 A That's probably me where I'm walking back and forth. 7 Q Okay. 8 walking back and forth? 9 A Correct. 10 Q And this that I'm pointing to, I take it, is the gun 11 counter? 12 A Correct. 13 Q Okay. 14 or away from you? 15 A He was for the most part facing away from me. 16 Q Okay. 17 you can see the side? 18 A He appeared to be browsing the firearms along the wall. 19 Q Sure. 20 would see him through the aisles? 21 A Yes. 22 Q Okay. 23 next to him? 24 A I don't remember seeing anybody next to him. 25 Q Okay. This little people purports to be whom now? And over here, who are these little people here? And you drew some arrows that indicate that you were So Mr. Pena, if that's him, was he facing toward you And at times, did he turn to the right or left, and And you would pass by and you would stop and you And to the right of him, did you see another person Now, part of your training in surveillance, what is Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 32 of 41201 1 it you're trained to do in surveillance? 2 for? 3 look for -- 4 A 5 things. 6 Q 7 picking out their characteristics? 8 A Do you look for people? Do you We look for a lot of Would you say that you're fair in identifying people, I don't -THE COURT: The question being, "Are you fair?" Is that what you said? 11 12 Do you look for things? We look for people, activities. 9 10 What is it you look MR. GAMEZ: Yes. Is he fairly good at picking up physical characteristics of people. 13 THE WITNESS: It depends on the type of view I get, how 14 familiar I am with the person. 15 BY MR. GAMEZ: 16 Q 17 in the truck, did you learn who that person was? 18 A At that time, I had no clue. 19 Q Sure, not at that time. 20 person was? 21 A Yes. 22 Q Okay. 23 A I believe his name is Sergio. 24 Q Would that be Sergio Gonzalez? 25 A From what I've heard the other agents say, yes. Okay. It depends on a lot of things. For example, in Defendant's Exhibit 2, the individual But have you since learned who that And who is that person? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 33 of 41202 1 Q 2 the United States Attorneys, have you not? 3 A Very little; but, yes. 4 Q Okay. 5 little more of Sergio Gonzalez. 6 shirt? 7 A I cannot get a definite color. 8 Q What's that? 9 A I cannot get a definite color of his shirt. 10 Q Well, using your rational visual eye appreciation of colors, 11 can you tell the color of the grocery cart, Academy grocery 12 cart? 13 A Blue. 14 Q Okay. 15 A White. 16 Q Okay. 17 apparel? 18 A Mario? 19 Q Excuse me. 20 A Looks like a black sweatshirt. 21 Q Okay. 22 it look like to you? 23 24 25 Sure. And you've discussed this case with other agents and Now, let's look at the other picture. It shows a Can you tell the color of his Can you tell the color of the truck? Now, can you tell the color of Mario's apparel, top Manuel Pena. Now, the shirt of Sergio Gonzalez in there, what does MR. PONCE: Your Honor, I'm going to object. That's been asked and answered. THE COURT: I'll allow it, but just one more time. He Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 34 of 41203 1 can answer the question. 2 THE WITNESS: From the shade -- it looks like a shade of 3 beige from the picture from what I see right now. 4 BY MR. GAMEZ: 5 Q 6 Yes. Thank you, officer. Now, this same person that you've identified, did you see 7 him in the long-sleeved shirt, Mr. Sergio Gonzalez? 8 A The same person that I've identified as which person, sir? 9 Q Do you see him with a long-sleeved shirt, Mr. Sergio 10 Gonzalez? 11 A Yes, that appears to be a long-sleeved shirt. 12 Q Okay. 13 right side of Manuel Pena? 14 A I don't remember that, sir. 15 Q Do you remember seeing anyone other than Manuel Pena at the 16 counter? 17 A I don't. 18 Q But you certainly remember Manuel Pena -- 19 A Yes. 20 Q -- at the counter? 21 Government's Exhibit 1 going into the truck? 22 A Are you asking me, sir? 23 Q Yes. 24 A I remember a person going to the truck, yes. 25 Q Okay. Do you remember seeing him in your diagram on the And you certainly remember Sergio on And at that time, you didn't know who it was? Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 35 of 41204 1 A Correct. 2 Q Now, I believe you testified that you made a passing -- the 3 first passing and the second passing and you noticed nothing 4 suspicious. 5 A 6 Mr. Pena, browsing firearms at a sporting goods store. 7 Q 8 went outside back to your surveillance vehicle. 9 accurate? What do you mean by that? By nothing suspicious, it looked like somebody I knew, Now, after that, you say -- you testified that you simply Would that be 10 A That's accurate, sir. 11 Q Okay. 12 Garza? 13 A He was on surveillance in his own vehicle. 14 Q Okay. 15 Omar Garza was in another vehicle? 16 A That's correct. 17 Q Okay. 18 inside Academy? 19 A Not at the same time, no. 20 Q Did he go inside in other times? 21 A He may have been there earlier before -- we usually take 22 turns. 23 Q 24 know if Omar Garza saw Mr. Manuel Pena inside Academy? 25 A Sure. And at the vehicle or in the vehicle was an Omar So you were in one vehicle, government vehicle, and Did Omar Garza get off with you and surveillance And to the best of your knowledge and belief, do you I don't think he did. Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 36 of 41205 1 Q 2 with the golf -- with a grocery cart, would that be correct to 3 say, with a box? 4 A Yes. 5 Q Okay. 6 A I did see Mr. Pena exiting the store with the box in his 7 cart. 8 Q Okay. 9 A No, sir. 10 Q You did not see him, or you do not remember seeing him? 11 A I did not see him. 12 Q Do you remember testifying simultaneously he showed up at 13 the truck with Mr. Pena? 14 A I don't believe that's what I testified. 15 Q Do you remember testifying that Mr. Pena put the box in a 16 white truck? 17 A Yes. 18 Q Okay. 19 20 Now, you say you saw Manuel walking outside the store Do you remember seeing Mr. Pena right there with him? Did you see Mr. Sergio Gonzalez next to him? Then you testified simultaneous -- THE COURT: Excuse me. Mr. Gamez, if you are asking a series of questions from a prior hearing -- 21 22 Okay. MR. GAMEZ: This hearing, Judge, asked by this prosecutor. 23 THE COURT: 24 BY MR. GAMEZ: 25 Q Okay. All right. Thank you. To clear that up, sir, I'm not asking questions about any Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 37 of 41206 1 prior judicial hearing. 2 Do you recall testifying when asked the question, "Did you see 3 Mr. Pena -- what did he do with the box," excuse me, and you 4 said he put it in a -- I believe you said a white truck, the bed 5 of a white truck. 6 A 7 time that Mr. Pena was placing the firearm in the bed of the 8 truck, I noticed the other individual exiting the store. 9 Q Okay. 10 A I don't remember that, sir. 11 Q -- the individual showed up? 12 A I don't remember that, sir. 13 Q Would it help to refresh your memory if the record of your 14 testimony be read to you? 15 A 16 I'm asking you about your testimony. Yes, sir, I believe I testified that almost about the same Do you remember using the word "simultaneously" -- Sure. MR. GAMEZ: Your Honor, can we have that read where he 17 says "simultaneously," which to me means about the same time 18 they showed up together? 19 THE COURT: Request denied. 20 MR. GAMEZ: Please note my objections, Judge. 21 THE COURT: Overruled. 22 BY MR. GAMEZ: 23 Q 24 that a second to you, two seconds? 25 in your opinion? Okay. Now, Mr. Pena, if you testified "simultaneously," is How much time would that be Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 38 of 41207 1 A I didn't note the time. I wouldn't want to lie to you, sir. 2 I don't note the time. 3 Q 4 his truck? 5 A 6 Are we talking about Sergio Gonzalez or Manuel Pena? 7 Q 8 and Mr. Manuel Pena. 9 Mr. Pena put the box in the bed of the truck and simultaneously, But you did see Sergio Pena simultaneously appear next to If I'm getting this correct, and -- excuse me, Your Honor. Mr. Sergio Pena and Mr. -- excuse me, Mr. Sergio Gonzalez Mr. Pena -- would this be correct? 10 as you testified, Mr. Sergio Gonzalez showed up? 11 A 12 approaching. 13 was putting it in the truck. 14 Q Do you wish to change your testimony? 15 A If it needs further explanation, I'll explain it further. 16 Q Did you see -- how long did it take Mr. Sergio Gonzalez to 17 show up after Mr. Pena placed the box in the truck? 18 A I didn't note the time, sir. 19 Q Okay. 20 Mr. Pena are friends? 21 A No, sir, I have not. 22 Q You've not learned that? 23 A No, sir. 24 Q Okay. 25 the time that you were -- during the surveillance that Sergio No. I -- that's when I noticed Mr. Sergio Gonzalez He wasn't at the vehicle simultaneously when he Have you since learned that Mr. Sergio Gonzalez and Were you -- did you learn at the time or on or about Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 39 of 41208 1 Gonzalez and Mr. Pena were friends? 2 A No, sir. 3 Q Okay. 4 Mr. Gonzalez at his apartment? 5 A No, sir. 6 Q You were not present? 7 A No, sir. 8 Q So you don't know what occurred in the apartment of 9 Mr. Sergio Gonzalez? Were you involved with any of the conversations with 10 A That's correct. 11 Q If there's testimony that Mr. Gonzalez was at the counter 12 with Mr. Pena, would you disagree with that, or you simply do 13 not know? 14 A I simply do not recall. 15 Q Okay. 16 there was testimony that Mr. Pena and Mr. Gonzalez walked out 17 together since they were friends? 18 I do not know what occurred. Would you have any reason to disagree with someone if MR. PONCE: Your Honor, I'm going to object to improper 19 impeachment, and there's been no such evidence of that at this 20 point. 21 22 THE COURT: The question was "if there was testimony." It's conditional. 23 MR. GAMEZ: 24 BY MR. GAMEZ: 25 Q Yes, Judge. Would you have any reason to disagree with any evidence, if Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 40 of 41209 1 introduced, that Mr. Pena and Mr. Gonzalez that have been 2 friends for ten years walked out the store together? 3 have any reason to disagree with that? 4 THE COURT: All right. Excuse me. 5 facts not in evidence. 6 the testimony, would you disagree?" 7 cross-examination. 8 BY MR. GAMEZ: 9 Q Would you You're assuming Please ask the witness, "If this were Don't testify on If there was evidence introduced to this jury that 10 Mr. Sergio Gonzalez and Mr. Pena walked out together, would you 11 have any reason to disagree with that? 12 MR. PONCE: Your Honor, I'm going to object. I'm going 13 to ask for clarification since we're talking about two different 14 counts, two different incidents, on the 5th and on the 19th. 15 BY MR. GAMEZ: 16 Q On December the 5th, would you disagree with that? 17 A On December the 5th, I can testify that from my vantage 18 point watching Mr. Pena exit Academy, he was not with Mr. Sergio 19 Gonzalez. 20 BY MR. GAMEZ: 21 Q What about December the 19th? 22 A I am not aware of any events on December 19th. 23 Q Would you agree with me, sir, that there are surveillance 24 cameras in the inside of the store? 25 A I would agree to that, sir. Case 1:12-cr-00472 Document 102-4 Filed in TXSD on 01/22/13 Page 41 of 41210 1 Q Would you agree with me, sir, that you went to the store and 2 asked for those surveillance cameras? 3 A On December 6th, yes. 4 Q Very next day. 5 A Yep. 6 Q What did you -- did you get your hands on those cameras? 7 A Did I get my hands on the cameras? 8 Q Yes. 9 A No. 10 Q On the videos, CDs. 11 A The CDs provided to me by the Academy personnel, yes. 12 Q Okay. 13 A As requested by -- I'm not sure if OPR requested it or -- 14 that is what we do when we're conducting an investigation. 15 Q 16 of Academy? 17 A Yes. 18 Q And the -- was the purpose of acquiring the videos from 19 Academy to prove that Manuel Pena was purchasing the firearm? 20 A Yes. 21 Q Have you seen those videos? 22 A I have not. 23 Q What did you do with those videos? 24 A The copies provided to me by the Academy personnel, I handed 25 them over to Mr. -- Agent Michael Deans. Very next day? On the cameras, no, sir. Why did you do that? You went back to the store to get possession of the videos Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 1 of 25 211 1 Q If you would see those videos, could you identify Sergio 2 Gonzalez if he was on that video in Academy, in the Academy 3 store? 4 MR. PONCE: I'm going to object. 5 speculate. 6 the angle, et cetera, lighting. He's asking him to There's no way he can tell the quality of the video, 7 THE COURT: Sustained. 8 MR. GAMEZ: Then I'll rephrase my question, Judge. 9 BY MR. GAMEZ: 10 Q 11 and Sergio was at the counter with Mr. Pena, could you identify 12 Mr. Sergio Gonzalez? 13 A 14 think I possibly could. 15 Q 16 would probably be the best way to recognize -- to refresh your 17 memory? 18 If the quality of the video was at its greatest condition I can't guarantee it. Okay. But seeing Mr. Sergio Gonzalez now, I So you -- would you agree that looking at the video MR. PONCE: I'm going to object, Your Honor. I don't 19 know if that -- he's asking him to speculate on what would be 20 best to refresh his memory. 21 THE COURT: 22 THE WITNESS: I'm going to allow it. Overruled. Can you repeat the question, sir? 23 BY MR. GAMEZ: 24 Q 25 recall seeing him at the counter, I understand? Yes, sir. Would you agree with me, sir, since -- you don't Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 2 of 25 212 1 A Okay. 2 Q That a good video from Academy would help you refresh your 3 memory if you recognize Mr. Sergio there at the counter and 4 it -- would you agree with that? 5 A I would agree that it would help refresh my memory, yes. 6 Q Okay. 7 him, you would say I don't see him or I don't recognize him? 8 A Correct. 9 Q That's fair, sir. 10 And if he wasn't there and you couldn't recognize Thank you. Now, you haven't seen the videos? 11 A I have not, sir. 12 Q Are there videos outside the parking lot? 13 A I believe there are, sir. 14 Q Okay. 15 A I believe they came in the package of the transaction from 16 the time frame from the purchase of the firearm. 17 Q 18 a crystal clear video of Academy in the parking lot, that that 19 might help refresh your memory as to whether Mr. Pena and 20 Mr. Gonzalez walked out together? 21 A Do you -- did you ask for those videos as well? Would you agree with me also that if there was a good video, Yes. 22 MR. GAMEZ: Nothing further, Judge. 23 THE COURT: Mr. Ponce? 24 25 REDIRECT EXAMINATION BY MR. PONCE: Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 3 of 25 213 1 Q I just have a question or two. Sir, whatever Academy gave 2 you that next day, you just turned over to Agent Deans? 3 A Yes. 4 Q So you have no idea what, if anything, it contained or if it 5 was wrongly copied by them? 6 A I have no idea, no, sir. 7 Q Okay. 8 MR. PONCE: I have nothing further, Your Honor. 9 THE COURT: Mr. Gamez? 10 RECROSS-EXAMINATION 11 BY MR. GAMEZ: 12 Q 13 that -- those videos was to give them to the United States 14 prosecutor's office for evidence? 15 A Mr. Gonzalez, would it be fair to say that the purpose of No, sir. 16 THE COURT: Excuse me just a second. The question on 17 redirect was so you have no idea what, if anything, it contained 18 or if it was wrongly copied by them. 19 recross what was brought out on redirect. You can only inquire on 20 MR. GAMEZ: Thank you, Judge. 21 THE COURT: All right. 22 MR. PONCE: No, Your Honor. 23 THE COURT: Sir, you may step down, and you will be 24 25 Anything else, Mr. Ponce? excused. THE WITNESS: Thank you, ma'am. Thank you, Your Honor. Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 4 of 25 214 1 2 THE COURT: All right. Ms. Betancourt, call your next witness. 3 MS. BETANCOURT: 4 THE COURT: Government calls Omar Garza. And, members of the jury, so you may know, I 5 normally stop at 5:00. 6 stopping at 5:00 or at a good stopping point when you're in 7 your -- examining the witness. 8 know, if there's a good stopping point that you, you know, let 9 me know that you can break. 10 It's now about 20 till, so we'll be MS. BETANCOURT: Just keeping in mind that, you I would hope and anticipate that this 11 witness would be short, Your Honor. 12 wrap him up before 5:00. 13 THE COURT: 14 All right. Good afternoon, sir. I will try to see if I can Thank you. Please have a seat in the witness 15 chair, and speak into the microphone so that your voice is 16 amplified. 17 You may proceed. 18 OMAR GARZA, 19 the witness, having been previously duly cautioned and sworn to 20 tell the truth, the whole truth and nothing but the truth, 21 testified as follows: 22 DIRECT EXAMINATION 23 BY MS. BETANCOURT: 24 Q Agent Garza, will you please give the jury your full name. 25 A Omar Garza. Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 5 of 25 215 1 Q And where do you work? 2 A I'm a special agent for Homeland Security Investigations. 3 Q And how long have you been doing that? 4 A I've been employed with them since November 2010. 5 Q And before that, how were you employed? 6 A I used to be employed as an officer for Customs and Border 7 Protection. 8 Q 9 description of what you do for Homeland Security Investigations, All right. And can you just give the jury a very brief 10 or I believe y'all refer to yourself as HSI? 11 A 12 Border Enforcement Security Task Force. 13 mission is to try to minimize the amount of firearms, ammunition 14 or anything on the munitions list that is being illegally 15 exported, primarily since we're here in Brownsville, from the 16 United States into Mexico. 17 Q 18 were doing in that particular area on December 5th of 2011 here 19 at the Academy store in Brownsville, Texas. 20 with Gus Gonzalez that day doing some surveillance at the 21 Academy? 22 A Yes. 23 Q All right. 24 y'all were at the Academy, it's my understanding that Gus 25 Gonzalez was in the store. Yes. For Homeland Security Investigations, I work with the We're basically -- our I want to draw your attention then to some work that you Were you working And during that particular time period when Where were you? Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 6 of 25 216 1 A I was outside in the parking lot of the Academy. 2 Q All right. 3 A Mostly we do surveillance, not just at the Academy, but at 4 several FFLs around the Valley. 5 parking lot or inside the location, we basically try to see if 6 there's any sort of purchase that would catch our attention, if 7 it's either a bulk ammunition purchase or, you know, bulk 8 firearm purchase. 9 Q And what were you doing in the parking lot? And while either I'm in the Now, you used the word FFL just a minute in front of the 10 jury. Is that a federal firearm licensee, someone who's 11 licensed to sell guns? 12 A Yes, that's what I'm referring to when I say FFL. 13 Q And at Academy store there in Brownsville, it's a 14 federally -- a federal firearms licensee? 15 A Yes. 16 Q All right. 17 time, does Agent Gonzalez call your attention to something 18 that's going on in the store? 19 A 20 CBP Officer Manuel Pena inside -- inside the location. 21 Q Did you know who he was speaking of? 22 A Yes. 23 Q And how did you know that? 24 A I used to work with Gus in the Border Protection as an 25 officer there, and Manuel Pena was also an officer there. Is that what you're referring to? So you're outside the store. Yes, he does. At some point in He -- he just makes a mention that he saw a Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 7 of 25 217 1 Q So y'all were colleagues who worked together? 2 A That is correct. 3 Q And you knew who he was? 4 A Yes. 5 Q And you would know him by sight. 6 like? 7 A Yes. 8 Q Okay. 9 point in time, what are you doing? You know what he looked And so you get the call from Agent Gonzalez. At that 10 A At that point in time, I'm -- basically I'm sitting in the 11 parking lot just conducting just a regular surveillance, like we 12 said, looking for bulk purchases of firearms or ammunition. 13 Q 14 heard from Agent Gonzalez? 15 A No, not at the -- not at that time. 16 Q All right. 17 store? 18 A Not that I remember. 19 Q All right. 20 in the store, Manuel Pena? 21 A No, I did not see him exit. 22 Q Okay. 23 Gonzalez in his further investigation of what he was telling you 24 was going on with Manuel Pena? 25 A All right. Did you ever go into the Academy store after you Not that I can recall. Did you see Agent Gonzalez exit the Academy What about the individual that he told you was Did you see him exit the store? At what point in time then did you join Agent I joined Agent Gonzalez after the actual purchase of the Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 8 of 25 218 1 rifle. When he saw the purchase and the exchange, I was across 2 the street filling up actually with gas, but he had already told 3 me. 4 purchase that took place. 5 Q 6 the purchase took place, and you're only aware that they're 7 walking out the store because -- We always have our car radios on, so I was aware of the So you're only aware because Agent Gonzalez is telling you 8 MR. GAMEZ: Objection to leading, Judge. 9 THE COURT: Sustained. 10 BY MS. BETANCOURT: 11 Q Did you leave the Academy at some point in time? 12 A Yes, I left the Academy. 13 Q And you were filling up with gas where? 14 A I was filling up at the Exxon on the corner of Highway 77 15 and it's Alton Gloor. 16 Q 17 parking lot? 18 A No, I did not. 19 Q Okay. 20 A Shortly thereafter. 21 truck, I go back to the Academy, but Mr. Pena was not there 22 anymore. 23 Q 24 to continue on with the investigation that he had seen and had 25 concerned him? And did you see any of the activity that was going on in the When do you get back to the Academy? All right. After filling up the -- filling up my Do you and Agent Gonzalez then make a decision Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 9 of 25 219 1 A Yes. At that time Agent Gonzalez referred to our 2 supervisor, Ed Bredhoft, for direction. 3 Q 4 investigation? 5 A 6 call OPR and tell them what we -- what he had seen. 7 Q 8 Responsibility? 9 A All right. And did y'all get direction to continue the Basically what the supervisor told Gus was to call -- to And when you mean OPR, is that the Office of Professional That is correct. 10 MR. GAMEZ: Objection. Leading, Judge. 11 THE COURT: I'll allow it. 12 BY MS. BETANCOURT: 13 Q 14 Office of Professional Responsibility be involved in 15 investigating that type of offense? 16 A Yes. 17 Q All right. 18 did you continue to do? 19 A 20 Office of Professional Responsibilities, and we -- basically I 21 was kind of standing by for further direction from them or a 22 supervisor. 23 try to identify the individual the firearm was given to. 24 Q 25 address for that person? Overruled. Is the office of profession -- what would the -- would the And so did you and Agent Gonzalez then -- what Well, at that time I think Agent Gonzalez had to contact the We -- or Agent Gonzalez, I believe, attempted to And were y'all able to try and locate either a name or an Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 10 of 25220 1 A Yes. I believe Agent Gonzalez was able to identify an 2 address. 3 Q And so what did y'all do with that information? 4 A With that information, if I recall correctly, during the -- 5 during this process, at that time we got a -- we received a call 6 from the port of entry at the Gateway International Bridge, and 7 they referred -- they basically -- since we get those calls as 8 well since we handle the firearm cases being exported or also 9 imported into the country, they had a gentleman coming inbound 10 from Mexico into the United States with a rifle. 11 point in time, Agent Gonzalez and myself believe like, oh, this 12 was probably the rifle that was purchased at that time, so we 13 went to the port of entry. 14 totally something unrelated. 15 Q All right. It was not the case. And at that It was just Did you go back then -- 16 MR. GAMEZ: Objection to relevancy, Judge. 17 THE COURT: Overruled. 18 BY MS. BETANCOURT: 19 Q 20 there at the Academy leaving with the gun? 21 A 22 I believe, already had an address identified. 23 the port of entry to the -- to the apartment complex with the 24 address that we had identified. 25 Q Did you go back then to looking for the person who was seen Yes. After the port of entry at that time, Agent Gonzalez, We went back from Do you remember the name of the apartment complex? Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 11 of 25221 1 A I believe it's The Borders before you get to Ruben Torres on 2 the highway on 77. 3 Q And that would be here in Brownsville, Texas? 4 A That is correct. 5 Q What do you see when you get to the apartment complex? 6 A When we get to the apartment complex, basically I park my -- 7 I situate -- I park my vehicle to a location where I have a view 8 of the -- of a door of the apartment that we're looking at. 9 while I'm conducting surveillance there, I see a gentleman and a And 10 younger adult go out into the -- it's on the second floor, so 11 they go out onto the balcony, and I see a rifle. 12 gentleman is holding a rifle. 13 that point that he's kind of showing the rifle to the young 14 adult, which I just imagine might have been his son or a 15 relative. 16 holding the -- holding the rifle, looking through it. 17 it had a -- it has a scope, and he was showing it to his -- to 18 the younger adult. 19 Q 20 admitted as Government's Exhibit No. 5. 21 you're familiar with this photograph. 22 A Yes. 23 Q And is that being taken, as you're explaining to the jury, 24 you're doing the surveillance, and this is what you see on the 25 balcony? The older And basically it seems to me at And you could see the older gentleman is kind of just I believe Agent Garza, I'm going to show you what has already been I'm going to ask if I took that picture. Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 12 of 25222 1 A Yes. I took that picture from my vehicle in the parking 2 lot. 3 Q 4 picture, this individual here is the one you described as? 5 A 6 either a son or family. 7 Q And this individual here? 8 A That's the -- the older gentleman. 9 Q What's being pointed here? 10 A Yes, the rifle. 11 there. 12 Q Right up here? 13 A Yes. 14 Q Above the hand, is that what you're referring to? 15 A That's correct. 16 Q And Exhibit No. 6, are you familiar also with this 17 photograph? 18 A Yes, I took that photograph as well. 19 Q Same individual? 20 A That's correct, the younger adult. 21 Q From Exhibit No. 5. 22 able to identify it as the same one there that you saw in 23 Exhibit No. 5? 24 A Yes, by the clothes and the same rifle. 25 Q Okay. All right. And so you can just explain just briefly in the As the younger adult or the teenager, which I believe it was That's -- And I believe you can see the scope briefly And sitting behind that person, are you And did you see anyone else on the balcony? Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 13 of 25223 1 A No. 2 Q Did you know either of these individuals, the gentleman in 3 the white shirt or the gentleman in the -- looks like a 4 long-sleeved khaki shirt? 5 A No, I did not. 6 Q Did you see the individual that you knew as Manny Pena 7 anywhere in the vicinity when you went to The Borders Apartment? 8 A No, I did not. 9 Q Did you see him on the balcony? 10 A No. 11 Q Or anywhere else by the apartment? 12 A No. 13 Q Or anywhere else in the parking lot? 14 A No. 15 Q How long do you stay there and do surveillance? 16 A It was -- it's December, so it gets darker earlier. 17 say about approximately from the time we got there until the 18 time we left the apartments, I'd say from one to two hours 19 maybe. 20 Q 21 seen on the balcony, did you see them again? 22 A 23 the rifle in hand. 24 Q And did you have any continued work on this investigation? 25 A I did not. But I'd At any point in time, did you see the two individuals you'd Yes, we -- or I saw them leave the apartment complex without Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 14 of 25224 1 Q The person that you worked with at Customs, the person 2 you've been referring to as Manuel Pena, do you see him here in 3 the courtroom today? 4 A Yes. 5 Q Could you please identify him? 6 you're speaking of, describe something he's wearing and where 7 he's sitting. 8 A 9 stripes. And so the jury knows who He's sitting to the left, black suit, tie, bluish tie, 10 Q Where at the table he's sitting? 11 A Oh, to the left next to, I believe -- the three individuals, 12 he's the one furthest to -- 13 Q Closest to you? 14 A Yes. 15 16 MS. BETANCOURT: Your Honor, may the record reflect that the witness has identified the defendant, Manuel Pena? 17 THE COURT: 18 MS. BETANCOURT: 19 THE COURT: 20 The record will so reflect. I'll pass the witness, Your Honor. Mr. Gamez? CROSS-EXAMINATION 21 BY MR. GAMEZ: 22 Q 23 when Mr. Pena purchased the rifle on December 5th? 24 A I was not present when he exited the Academy. 25 Q Okay. Mr. Garza, so I can fully understand, you were not present You didn't see any of the purchase or any of the Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 15 of 25225 1 activity in the parking lot? 2 A That's correct. 3 MR. GAMEZ: Nothing further. 4 THE COURT: Ms. Betancourt? 5 MS. BETANCOURT: 6 THE COURT: 7 8 9 No further questions, Your Honor. Then, sir, you may step down. Members of the jury, I'm going to recess you for the evening, and we'll be resuming again at 9:00 tomorrow morning. During this recess, you're still under my admonishment that 10 you must not form or express any opinion about the facts of this 11 case and cannot do so until it has been submitted to you for 12 your deliberation. 13 newspaper accounts or watching television, news accounts or 14 listening to radio news accounts about this trial. I'm cautioning you about reading any 15 If inadvertently you happen to be somewhere where, for 16 example, a TV is on and it's -- I'm not saying that there will 17 be, but if there were to be a situation like that that there 18 might be some coverage about this trial, please do what you can 19 to immediately leave the room. 20 something either on television or in the newspaper or heard any 21 news accounts during this evening recess, it is your obligation 22 to report it to the Court at the earliest convenience. 23 want to know how much you heard, if anything, so that we can -- 24 so everybody can be apprised of what might have happened. 25 So you will be in recess until 9:00 tomorrow morning. If inadvertently you have seen We just Thank Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 16 of 25226 1 2 you. (Jury leaves courtroom) 3 4 THE COURT: Thank you. Please be seated. Mr. Ponce, what's going to be your lineup tomorrow? 5 MR. PONCE: Yes, Your Honor. Tomorrow we have Albert 6 Torriz and Michael Deans, Sergio Gonzalez, Raul Garcia, Tom 7 Morrisey. 8 the end of the day if things go smooth. 9 We should hopefully be very close to the tail end by THE COURT: All right. Then I'm going to hear argument 10 on the objection to Government's Exhibits 24. 11 numbers? Or what were the 12 MR. PONCE: 24 and 25, I believe, Your Honor. 13 THE COURT: 24 and 25? Okay. Mr. Ponce, first I'll ask 14 for you to address the Court on the substance of the exhibits 15 and which witness you would want to have testify. 16 MR. PONCE: 24 is the -- is the -- is a phone call that 17 was -- that was made to Sergio Gonzalez by the defendant. 18 was -- it was recorded by the agents. 19 to the purchase of December the 19th before they went in and 20 made that purchase. 21 It This was just right prior No. 25 is the -- is a recording made from the device that 22 was given to Sergio Gonzalez by the agents of the purchase in -- 23 during the time the purchase was made. 24 Academy. 25 THE COURT: It was inside the Tell me, how long is the audio from Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 17 of 25227 1 Exhibit 24? 2 MR. PONCE: It's very short. No more than a couple -- 3 than two minutes or so. 4 Judge, for the most part, it's dead time, just kind of waiting 5 around. 6 Gonzalez was not with the defendant the entire time that the 7 defendant was up at the counter, but he would walk away, do some 8 things, then come back, walk away a few times. 9 minutes worth of conversation. 10 11 The other one is 62 minutes. But, Or during the time that that purchase was made, Sergio So it's not 62 The -- that's what -- what -- what we have. The witness that would -- that would introduce that would be 12 the tail end tomorrow, I would think. 13 Sergio himself to say that that's his -- his voice on the 14 recording. 15 the tapes from the other agents and kept them as part of the 16 file and who can identify the voice of the defendant. 17 later point in time, of course, he spoke to the defendant when 18 he was, in fact, arrested. 19 THE COURT: 20 21 That would be perhaps Or even the agent, the Case Agent Owens who received Okay. At some Well, tell me about Exhibit 24 and whether the voices are easily understood. MR. PONCE: The -- they're not -- it's not a crystal 22 clear recording, Your Honor. In fact, that's one of the things 23 that we had discussed at least internally, that we may just have 24 the witness talk about those conversations, but ultimately not 25 even introduce the recordings. One side seems to be very clear. Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 18 of 25228 1 Others -- the other side, you know, isn't very clear. 2 THE COURT: Whose voice is audible, and which -- 3 MR. PONCE: The voices that are on the -- for the phone 4 call, the short call, the voices, I think, are quite clear. 5 That would be Sergio Gonzalez and the defendant, Manuel Pena. 6 7 THE COURT: That's what I asked you. About Exhibit 24, are those voices audible? 8 MR. PONCE: Yeah, yeah, they're -- 9 THE COURT: I mean intelligible? 10 MR. PONCE: Yes. But I submit to the Court, I mean, 11 what may be audible to me, I don't know to the Court. 12 hearing isn't as it should be, but it's not like it's Hollywood 13 quality, is what I'm trying to tell the Court. 14 THE COURT: Okay. My The other -- if the Exhibit 25 in 15 total is over an hour or close to an hour, do you -- was it your 16 intention to use all of it or only parts of it? 17 MR. PONCE: No, Your Honor, only parts of it. And 18 actually I was trying to -- because I didn't want to have to 19 deal with the whole thing and just have jurors sit there for an 20 hour listening to just very little bits and portions that are 21 really relevant, I was going to try and see if I could get this 22 disk to be -- because I don't know how to do this, but I'll get 23 someone in the office perhaps might be able to do it. 24 instead of having this, in retrospect, maybe just a small 25 portion of a minute here, a minute there, a minute there, like That Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 19 of 25229 1 divide it into maybe like four parts, and that would be it. 2 THE COURT: So without having done it, can you give me 3 your best estimate as to if ideally you were to get this -- 4 these excerpts, what the total would be of the running time? 5 MR. PONCE: Ten, 12 minutes. 6 THE COURT: Okay. 7 objection to Exhibit 24. Then I'll hear the defendant's Mr. Gamez? 8 MR. GAMEZ: Yes, Judge. 9 THE COURT: Would you do so at the microphone? 10 MR. GAMEZ: 24, Judge, is a phone call. I'm trying to 11 recall whether it is audible in its totality. 12 it is. 13 side of my ear, which that's why I have a little bit or a lot of 14 loss of hearing. 15 24, and I find it to be -- much to be inaudible most certainly. 16 And if I'm going to get that, Judge, I would like a transcript 17 if the Court is going to allow it. 18 It's difficult. I don't believe Then again, I had a 270 shot in my left So I couldn't pick up a lot of the language in THE COURT: Let me ask you one more thing. Is the -- 19 are the conversations or that particular conversation, is it in 20 English or Spanish? 21 MR. GAMEZ: It's in Spanish, Judge. 22 THE COURT: I'm asking the government. 23 MR. PONCE: Oh, I'm sorry. 24 with some English. 25 there. It's generally in Spanish Very, very limited English words here and Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 20 of 25230 1 THE COURT: Okay. Well, you have to address the issue 2 if it's in Spanish, and it has to be translated for the record 3 into English. 4 How do you expect to do that? MR. PONCE: I almost -- I have a transcript, Your Honor, 5 that hasn't been excised in the way that I just mentioned to the 6 Court, and that's how I wanted to try and do that and just 7 identify, let's say, the first excerpt. 8 example, the lengthier conversation, that's the one that kind of 9 worries me more because I don't want to play the 62 minutes. Let's say as an 10 But I thought, well, maybe play like from the three minute mark 11 to the four minute 30 minute mark and show that as the 12 transcript. 13 mark, and just those portions as -- but prepare a transcript 14 that just says that. And then the seven minute mark to the nine minute 15 THE COURT: Okay. 16 MR. PONCE: Oh. 17 THE COURT: The phone call. 18 MR. PONCE: Yes, 24 is the -- 19 THE COURT: In English or Spanish? 20 MR. PONCE: Mainly Spanish. 21 22 23 24 25 I'm asking about 24. Very, very short. Not even more than two minutes, I think. THE COURT: All right. And how did you expect to have the exhibit translated into English? MR. PONCE: What -- what I was going to do is have the witness -- he was going to talk about the conversation. If Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 21 of 25231 1 there was an issue about the conversation, then I was just going 2 to have him listen to it and then just tell us what that 3 conversation is about. 4 THE COURT: There has to be -- if you're going to have 5 it in evidence, it has to be -- there has to be some kind of 6 translation. 7 MR. PONCE: I understand, Your Honor. That's what I 8 spoke to Mr. Gamez about earlier today about maybe getting that 9 particular one, because that one I didn't have. Well, actually 10 I may have it by now, I'm not sure, but that -- I realize what 11 the Court is saying. 12 THE COURT: Okay. Because the witness can testify about 13 what he recalls the substance of the conversation being. 14 it's going to be in evidence, there has to be something for the 15 record as to what the conversation consists of. 16 English. 17 MR. PONCE: Yes, Your Honor. But if It has to be in The transcript would 18 certainly -- the English version of the transcript would be the 19 actual exhibit, even though I marked the disk with the label. 20 THE COURT: Okay. Well, if you are prepared to make an 21 offer of Exhibit 24 with not only the oral recording, but also a 22 written transcript in Spanish and an English translation 23 alongside of it, then I'll consider your offer. 24 MR. PONCE: Yes, Your Honor. 25 THE COURT: And I'll consider any objections by the Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 22 of 25232 1 2 defendant. Now, let's talk about the Exhibit 25, that being what would 3 be excerpted. 4 portions that you would want to have heard by the jury. 5 they in English or in Spanish? 6 7 That is that you apparently -- there are some MR. PONCE: Are We would -- they're in Spanish, the conversation in Spanish, but I'll have the English translation. 8 THE COURT: Are you prepared already for that? 9 MR. PONCE: In the fashion that we just discussed here 10 about breaking it down into those, no, Your Honor. 11 tomorrow, I should have it. 12 THE COURT: All right. But by Then I'm going to ask that you 13 report -- if the jury is coming back, what time did I tell them? 14 I've already forgotten. 15 COURT CLERK: 16 THE COURT: 9:00, Your Honor. 9:00. Be here no later than 8:15 to tell me 17 or show me or, you know, whatever it is you're going to have in 18 the exhibits at the time that you would offer them so I can hear 19 objections, if any, to the exhibits as they are at that point in 20 time. 21 MR. PONCE: Yes, Your Honor. 22 THE COURT: All right. 23 MR. GAMEZ: Judge, if I may before? 24 really bad, Judge. 25 THE COURT: Thank you. 25 is really, Really, really bad. Well, that's fine. You just -- I'm not Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 23 of 25233 1 2 going to prejudge something without having heard. (Court adjourned.) 3 * * * 4 (End of requested transcript) 5 6 7 Thank you. -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 8 9 Date: January 16, 2013 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 24 of 25234 1 I N D E X 2 JURY SELECTION AND START OF TRIAL 3 AUGUST 14, 2012 4 Discussion regarding plea offer 5 404(b) motions 11 6 General voir dire by the Court 17 7 Agreed challenges for cause 68 8 Individual voir dire 73 9 Strikes made 94 10 Jury selected 95 11 Remainder of jury panel excused 96 12 Jury sworn 99 13 The Court's initial instructions to the jury 99 14 Government's opening statement 109 15 Defendant's opening statement 119 16 Witnesses sworn 124 17 The rule invoked 125 18 19 22 23 24 25 8 CHRONOLOGICAL INDEX GOVERNMENT'S WITNESSES: 20 21 PAGE EDUARDO GONZALES GUSTAVO GONZALEZ OMAR GARZA DIR CROSS RDIR RCRS 127 168 214 156 194 224 165 212 213 V/DIRE Case 1:12-cr-00472 Document 102-5 Filed in TXSD on 01/22/13 Page 25 of 25235 1 ALPHABETICAL INDEX 2 Name 3 GARZA, OMAR GONZALES, EDUARDO GONZALEZ, GUSTAVO 4 Page 214 127 168 5 6 GOVERNMENT'S EXHIBITS 7 NO. 8 1 2 3 4 5 6 7 8 9 10 11 12 13 9 10 11 12 13 14 15 16 17 18 19 20 14 15 16 17 18 19 20 21 22 23 26 27 21 28 22 23 24 25 DESCRIPTION Photo Photo Photo Photo Photo Photo Photo Photo Photo Photo Photo 12/5/11 Academy receipt Property receipt for 12/6/11 search Blank ATF Form 4473 12/5/11 Form 4473 Remington gun box Photo Video 12/19/11 Academy receipt December 19, 2011 Form 4473 Photo Photo Photo Remington gun box Academy No. 30 Federal Firearms License Warnings to Manuel Pena on 5/24/12 OFFRD ADMTD 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 126 W/DRAW Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 1 of 41 236 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 JURY TRIAL BEFORE THE HONORABLE HILDA G. TAGLE AUGUST 15, 2012 8 9 VOLUME 3 10 11 APPEARANCES: 12 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 13 14 15 16 17 Brownsville, Texas 78520 18 19 20 21 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 22 District Order of 94-15, United States District Court, Southern Texas. 23 Transcribed by: 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 2 of 41 237 1 (Jury enters courtroom) 2 THE COURT: 3 4 All right. Please be seated. Ms. Betancourt, Mr. Ponce, having been excused by the Court at his request, call your next witness. 5 6 Good morning. MS. BETANCOURT: The government would call Albert Torriz. 7 THE COURT: I'm sorry. 8 gentlemen. 9 you, but just to be sure. 10 And good morning, ladies and I meant that good morning I gave earlier to include Thank you. Sir, please -- good morning, first of all. 11 THE WITNESS: 12 THE COURT: Good morning, Your Honor. Have a seat in the witness chair to my 13 right, and please speak into the microphone so that your voice 14 is amplified. 15 THE WITNESS: Yes, Your Honor. 16 THE COURT: 17 MS. BETANCOURT: You may proceed. 18 Thank you, Your Honor. ALBERT TORRIZ, 19 the witness, having been previously duly cautioned and sworn to 20 tell the truth, the whole truth and nothing but the truth, 21 testified as follows: 22 DIRECT EXAMINATION 23 BY MS. BETANCOURT: 24 Q Agent Torriz, can you give the jury your full name. 25 A My name is Albert Torriz. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 3 of 41 238 1 Q And, Agent Torriz, what do you do for a living? 2 A I'm a Brownsville police officer assigned to the FBI Task 3 Force. 4 Q 5 officer? 6 A 7 those assigned to the FBI. 8 Q 9 to be assigned to the FBI task force? Now, how long have you been a Brownsville Police Department I've been a Brownsville police officer for 19 years, 11 of Can you just give the jury a quick overview of what it means 10 A I'm a liaison officer. I have investigative and arrest 11 powers by the State of Texas as a police officer. 12 sworn in as a special federal officer that gives me authority to 13 investigate and arrest in federal violations also. 14 Q 15 specifically involve? 16 A 17 extortions, drug trafficking organizations, bank robberies, 18 violent crimes. 19 investigations with the FBI have been in the public corruption, 20 the nature of public corruption. 21 Q 22 work with the FBI, if you were asked to assist by, I believe, 23 one of your co-agents or someone that you work with regularly, 24 an FBI agent, Federal Bureau of Investigation. 25 use the acronym FBI, Shaun Owen, to assist him with a -- some And you work with the FBI. I'm also What kind of work does that Well, anything that the FBI investigates: Kidnappings, Unfortunately, the vast majority of my I'm going to ask that at some point in time then in your I think you guys Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 4 of 41 239 1 contact they wanted to make with an individual back on December 2 the 6th of 2011? 3 A Yes, I do recall that day. 4 Q Okay. 5 assisting FBI Agent Shaun Owen with that investigation? 6 A 7 some information of a subject that had possibly purchased a 8 weapon illegally. 9 had displayed the weapon outside of the balcony of a certain And what was your role on December the 6th of 2011 in Agent Owens called me and informed me that he had received Also that they had been observed at -- they 10 apartment complex. 11 Q And what apartment complex was that? 12 A It was The Border Apartments on Media Luna. 13 Q And is that here in Brownsville, Texas? 14 A That is in Brownsville. 15 Q All right. 16 A I called a uniformed police officer, Officer David 17 Schaelchlin. 18 Unit of the Brownsville PD. 19 Q Okay. 20 A A uniformed is a -- to have a uniformed presence, a police 21 officer uniform and a police car. 22 Q 23 Department, you and he went where? 24 A 25 consent. All right. With that information, what did you then do? He's also assigned to the Special Investigations And so this officer from the Brownsville Police We went to do an approach of the apartment, a knock-and-talk Just go knock on the door for investigative purposes Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 5 of 41 240 1 just to make sure that -- see if there was a weapon that was at 2 the house, if it was purchased legally, and investigate the 3 allegation or what was observed as a weapon being displayed 4 outside of that apartment. 5 Q 6 make contact with? 7 A 8 had done a little bit of research. 9 an apartment, we like to -- or any place, we like to do a little Did you have a name at that point of who you were looking to I believe we did have a name. Sergio something. I know we Usually before we approach 10 bit of research as to who lives there, the type of potential 11 dangers we might be encountering. 12 picture or some type of information on the person that we were 13 looking for. 14 Q 15 approached that apartment? 16 A 17 knock on the door. 18 It's a consent. 19 door in. 20 And I know we did have a DL And can you please tell the jury what you did when you When we approached the apartment, we just -- we go. We knock. We go We don't go -- it's a consensual approach. We go knock on the door. We identify ourselves. We don't kick the We have the uniformed 21 officer present. I was in plain clothes. And we ask for 22 consent to talk to the person or to go into the building -- into 23 the apartment. 24 Q Who answered the door? 25 A A gentleman by the name of Sergio -- I don't recall his last Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 6 of 41 241 1 name. I know him as Sergio or -- he calls everybody cuñado, so 2 we also know him as cuñado. 3 the person of interest that we were looking to talk to. 4 asked him for consent. 5 consent, he was very polite. 6 Q 7 him in Spanish or in English? 8 A I was talking to him in Spanish. 9 Q And you say that you asked for consent. But he answered the door. He was And we In fact, before we even asked for He invited us into his apartment. And when you were speaking with him, were you speaking with Did you do that 10 formally? 11 A 12 to him. 13 then eventually, yes, we did -- before we started conducting any 14 type of search, we did provide him with a form, a voluntary 15 consent form, which he signed. 16 Q 17 talk, how did he respond? 18 A 19 we approach an apartment, we don't know who we're going to 20 encounter, but -- and it's not always very polite people. 21 was very professional, very polite, and invited us into the 22 house. 23 Q And who goes into the house at that point? 24 A Myself, Office Schaelchlin. 25 Agent Owens, Michael Deans, some other ICE OPR. At first it was just verbally, if we could step in and talk And he had already invited us into the apartment. And And when he -- when you asked him for consent to come in and He was very cooperative. He was very polite. At first when He There was some other agents: Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 7 of 41 242 1 Q And what happens then? 2 individual? 3 A 4 when we approach an apartment or any house or any building, for 5 that matter, I -- even before we entered the apartment, I saw 6 that there was a gun case, which is always a potential threat 7 for us. 8 Q Where did you see the gun case? 9 A It was leaning up against a couch in plain view from the Yes, we do. Do you talk to this Sergio We talk to him. Of course, of utmost concern 10 front door. Even before we went into the house I could see it, 11 so I was kind of focusing on that. 12 any other weapons in the house?" 13 here, and I got some other ones." 14 once we felt it was safe, we were just talking to him casually. 15 Q Was there anyone else there at the apartment? 16 A I believe his wife was there and one of his sons. 17 Q All right. 18 contact with Sergio? 19 A I was talking most to him. 20 Q And is that because you're the Spanish speaker in the group? 21 A That was correct. 22 Q Okay. 23 A I asked him if that was his weapon, if that was his rifle, 24 and he said it was. 25 already told him from the get-go that was the reason we were I did ask him, "Are there And he said, "Just this one And then we just start -- And who was having most of the conversational So what do you do when you see the gun? And we asked him, well, that -- I had Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 8 of 41 243 1 there, because there had been a -- he had been -- somebody had 2 been observed aiming a weapon out of the balcony of that 3 apartment. 4 just got the weapon. 5 looking through the scope to look, see how it looked and showing 6 it to his son, I believe, or something like that. 7 Q 8 weapon? 9 A All right. Yes. 10 11 And he said: Yes, that was my mistake. I just bought the weapon. I was -- I We were just Did Sergio tell you how he had acquired that He first told me -- he first said he bought it. MR. GAMEZ: Objection. Hearsay, Judge. The question is premised to elicit a hearsay response. 12 THE COURT: Overruled. 13 THE WITNESS: You may answer the question. He said he before bought it. 14 BY MS. BETANCOURT: 15 Q Did he tell you where he bought it? 16 A He said at Academy. 17 Q All right. 18 statement, that he had -- himself had bought the gun at Academy? 19 A 20 the purchase of the weapon and if it was purchased legally. 21 Q All right. 22 A Yes. 23 looking for it. 24 table, also all in the same room. 25 is all one room. Yes, I did. And did you question him further about that I asked him if he could produce a receipt for Did he, in fact, produce a receipt? He said his son had the receipt. I know they were And then his wife, who was sitting at the The living room and kitchen And she produced a receipt from her purse. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 9 of 41 244 1 MS. BETANCOURT: Your Honor, may I show the witness an 2 exhibit using the machine? 3 THE COURT: 4 BY MS. BETANCOURT: 5 Q 6 the 5th from Academy. 7 that you received from the wife of Sergio there at the 8 apartment? 9 A Yes, ma'am, it is. 10 Q Okay. 11 the back of it. 12 A That is correct. 13 Q Okay. 14 have this writing on there? 15 A Yes, it did. 16 Q Okay. 17 writing says? 18 A Yes. Exhibit No. 12 here is a receipt dated for December Take a look at that. And, in fact, this actual receipt has some writing on When the wife of Sergio gave you this receipt, did it And if you could just for the jury read what that Pistola. 19 THE INTERPRETER: 20 THE WITNESS: Gun. The next word to the right I can't 21 really -- it's C-H. 22 BY MS. BETANCOURT: 23 Q Can you read what's underneath? 24 A Nombre. 25 Is that the receipt THE INTERPRETER: Name. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 10 of 41 245 1 THE WITNESS: De. 2 THE INTERPRETER: 3 THE WITNESS: 4 THE INTERPRETER: Of. Meme, in parentheses. Meme, in parentheses. 5 BY MS. BETANCOURT: 6 Q 7 sorry, from the wife of Sergio, you told the jury a minute ago 8 that you had asked him further about how he had acquired that 9 weapon. Now, after the giving the receipt from the defendant -- I'm Did he talk to you some more about how he came into 10 possession of that gun that was there on the couch? 11 A 12 purchased it. 13 Q 14 truth or not? 15 A 16 and that's when he produced the receipt. 17 Q 18 question him about that purchase? 19 A 20 legally? 21 hesitating, and he kind of didn't want to talk too much about 22 it. 23 the purchase of the weapon. 24 Q 25 learn from Sergio? Yes, he did. He said that he -- he had -- he told me he He said he bought the weapon at Academy. Did you question him further about whether that was the Yes, I did. I asked him: Are you sure? And he said yes, And after producing the receipt, did you continue to Yes. We asked him that if he was -- did he purchase it Did he fill out the forms? Which he started kind of He was -- he was getting a little concerned, I guess, with All right. As you continue to talk to him, what did you Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 11 of 41 246 1 A We learned that he had utilized a friend of his to purchase 2 the weapon. 3 Q And what did Sergio tell you who that friend was? 4 A Meme. 5 Q And what did he tell you that he asked Meme to do? 6 A He asked Meme to purchase the weapon for him for his son 7 because he could not legally purchase it. 8 Q Did Sergio tell you why he couldn't purchase a weapon? 9 A He said something to do with his -- his change of address 10 and his driver's license and the utility bills not all matching. 11 Q 12 for him? 13 A 14 before that day that we were there. 15 Q 16 to continue his interview with you and the other individuals at 17 the FBI? 18 A Yes, ma'am, I did. 19 Q Okay. 20 A We asked him that we wanted to continue the investigation; 21 that there was still other questions that needed to be asked; 22 that we would like for him to accompany us to the FBI office to 23 talk in a more formal environment. 24 not under arrest and it was still voluntary, being that we were 25 there on a voluntary consent, and he agreed to go with us. Okay. And did he tell you when this person Meme bought it He said it had been the day before. All right. The day before -- day At some point in time then, did you ask Sergio And how did that come about? We did tell him that he was Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 12 of 41 247 1 Q How did he get to the FBI? 2 A I believe I drove him. 3 Q And when he gets to the FBI, what takes place? 4 A We sit down. 5 we normally do, and we continue the investigation as to the 6 purchase of the weapon. 7 Q 8 purchase of the weapon there at the FBI? 9 A All right. We offer him something to drink, I believe, as And what did you learn from Sergio about the We learned that he had asked his friend Meme to purchase 10 this weapon for him because he couldn't, and that Meme went in 11 and purchased the weapon at Academy. 12 at it first, and they already knew which one it was that he 13 wanted. 14 came back outside, he gave him the weapon, and then Sergio paid 15 Meme the amount that he had spent. 16 Q All right. 17 A In cash. 18 Q And the person that he refers to as Meme, did he provide you 19 with an identification of who he meant when he said Meme? 20 A Yes. 21 Q And who did he say Meme was? 22 A Manuel Pena. 23 Q When you're at the house conducting your interview, you also 24 mentioned to the jury that you asked Sergio to sign a consent 25 form to search the home. That they had gone to look And then Meme went in and purchased it. And how did he pay him? And when he In cash or -- Did y'all, in fact, search the Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 13 of 41 248 1 apartment? 2 A 3 additional weapons. 4 we asked from the beginning for officer safety reasons. 5 said there was. 6 Yes, we did. We asked him to -- if he had any other I mean, that was one of the questions that And he Then we went with him to get the other weapons that he had 7 in the house, which we ended up all processing to make sure they 8 weren't stolen; they were legally purchased. 9 Q Agent Torriz, let's go through those then one at a time. 10 You said when you walked in the door, you immediately saw a 11 weapon. 12 A 13 were looking for. 14 Q 15 to? 16 A The one that was illegally purchased at Academy. 17 Q And did he confirm that that was the same weapon that he and 18 his son were pointing and aiming on the balcony the day before? 19 A That is correct. 20 Q All right. 21 A I don't recall exactly. 22 All hunting rifles, it appeared to be. 23 Q Was there any ammunition in the home? 24 A There was some ammunition that pertained to the weapons that 25 were there in the house. What weapon was that? It was -- it turned out to be the weapon in question that we And when you say weapon in question, what are you referring What other weapons did you find in the home? There was, I think, a .22 rifle. There were about three other rifles, I Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 14 of 41 249 1 believe. 2 Q 3 that filled out the Form 4473 for the purchase of the weapon? 4 A I don't recall specifically asking him that question. 5 Q Okay. 6 for the gun? 7 A 8 question. 9 Q Did you confirm or did you ask Sergio if he was the person Did you ask him about who had signed the paperwork I -- I don't really recall if I asked him that specific But as far as who had purchased the gun, yes. All right. And when you asked Sergio who purchased the gun, 10 who did he tell you purchased the gun? 11 A That Meme had to purchase the gun for him. 12 MS. BETANCOURT: 13 THE COURT: I'll pass the witness, Your Honor. Mr. Gamez? 14 CROSS-EXAMINATION 15 BY MR. GAMEZ: 16 Q Good morning, Mr. Torriz. 17 A Good morning, sir. 18 Q Mr. Torriz, if I speak a little too softly, would you please 19 let me know? 20 A Okay. 21 Q I've been told I've been speaking too softly at times. 22 I will, sir. Mr. Torriz, you're assigned to the FBI; am I correct? 23 A That is correct, sir. 24 Q Okay. 25 A Yes. You've been there some time? We go back a way. We go back quite a few times. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 15 of 41 250 1 Q We've had a few cases? 2 A Yes, sir, we have. 3 Q Have we not? 4 5 All right. Mr. Torriz, have you ever been assigned to this type of case? 6 THE COURT: Sorry. 7 Assigned to what case? 8 BY MR. GAMEZ: 9 Q I didn't hear what you said. Have you ever been assigned to this type of case, 10 Mr. Torriz? 11 A As far as -- 12 Q Have you ever been involved in a case dealing with an 13 alleged illegal transfer of firearms? 14 A 15 Assisted in some arrests of some straw purchases. 16 Q 17 and pretty much been in the forefront of a transaction that's 18 alleged to have been illegal as far as the purchasing of one 19 firearm. 20 A That would be fair. 21 Q Okay. 22 A No. 23 Q They call you in, and you interpret and you assist FBI, as 24 in this case. 25 A Not too many. Okay. Straw purchase type thing, a couple. But never where you've interviewed someone personally Would that be fair to say? I don't investigate weapon -- That's really not your area now, is it? You assisted FBI in this case? That is correct. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 16 of 41 251 1 Q And OPR? 2 A That is correct. 3 Q Okay, sir. 4 than assisting. 5 A That would be fair to say. 6 Q Okay. 7 safe keep the evidence or book the evidence or anything like 8 that. 9 A So you were not the chief agent involved other Would that be fair to say to this jury? So you didn't help gather all the evidence, sir, or You simply assisted. Would that be fair to say? I did conduct an investigation on that day of the weapons 10 that were found to ensure that they weren't stolen; that they 11 were all purchased legally and registered. 12 Q 13 legally; all of them were purchased illegally? 14 A 15 purchased by Sergio in previous transactions. 16 Q 17 person from purchasing firearms. 18 A On the other weapons that were in the house, yes. 19 Q Okay. 20 was allowed to purchase a firearm if he chose to do so? 21 A 22 found in the house, yes. 23 Q 24 other weapons that Sergio bought in his name. 25 to have been purchased legally by Sergio? And they were. What do you mean they were all purchased All the other weapons that were found in the house had been So someone had to have checked whether he was a prohibited Would that be correct? And it was determined that Sergio was a person that Yeah, on the previous -- on the other weapons that were Not the weapon in question. Well, that's your -- your position. I'm talking about the They were found Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 17 of 41 252 1 A That is correct. 2 Q Okay. 3 the investigation that Sergio bought two prior weapons from pawn 4 shops? 5 A That is correct. 6 Q Do you recall what pawn shops he purchased those weapons 7 from? 8 A 9 here in Brownsville, I believe. Did you find from your investigation or assisting in Not off the top of my head, but they were pawn shops locally 10 Q Well, in this case, did you go to Academy to check to see 11 the weapon that was purchased by Manuel Pena? 12 A Did I go to Academy? 13 Q Yes. 14 A No, I never went to Academy to check -- 15 Q Okay. 16 A -- that weapon. 17 Q Did you ask Sergio for the receipts from the other two 18 weapons that were purchased by him? 19 A 20 or I cleared them by running them and making sure they weren't 21 stolen. 22 Q And they were not? 23 A And they were not. 24 Q They were Sergio's, purchased legally? 25 A That is correct. I believe we did ask him. I don't know if he produced them Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 18 of 41 253 1 Q Okay. Now, for whatever reason, you didn't check what pawn 2 shops. 3 these weapons from?" 4 A 5 state a name of a pawn shop. 6 shop he stated he bought each one from. 7 Q Did you write that down anywhere? 8 A I don't believe I wrote it down. 9 written it down, but I did not. But did you ask Sergio, "What pawn shops did you buy I do recall asking him where he bought them from, and he did I don't recall exactly which pawn Somebody might have 10 Q 11 the other two rifles from? 12 A 13 had bought it for him, I probably would have investigated 14 further. 15 Q 16 couldn't have bought this rifle because I didn't have the 17 correct address and utility, while beforehand he bought two 18 address, (sic) apparently giving the right address and utility 19 and all that information necessary to purchase two firearms. 20 Did you not find that suspect and unusual? 21 Do you believe it might be important to know where he bought If they came up stolen or if he told me that somebody else Well, wouldn't you agree it's suspect that he tells you: MS. BETANCOURT: Your Honor, I'll object to the 22 question. 23 any knowledge of those prior two transactions. 24 25 It calls the witness to speculate. MR. GAMEZ: I He doesn't have Your Honor, respectfully, if he's assisting in the investigation and he determines that a person says, "I Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 19 of 41 254 1 could not buy the firearm." 2 THE COURT: All right. 3 MR. GAMEZ: And then before then he has two. 4 THE COURT: Excuse me. 5 MR. GAMEZ: Yes. 6 THE COURT: -- the evidence. Respond, don't argue -- What is the basis for your 7 question, given that he might not know the evidence that you are 8 predicating your question on? 9 MR. GAMEZ: If your question is the following, Judge, 10 what is it that he did not know? 11 Honor's question. 12 THE COURT: I'm not sure I understand Your It's not a question. I'm asking you to tell 13 me what evidence you are relying on this witness knowing that 14 you're predicating your question on as to do you find it -- did 15 you not find it suspicious? 16 does he know -- 17 MR. GAMEZ: Question is for this witness, how I'm predicating my question on the officer 18 first determining the credibility of the witness before him, 19 Judge. 20 felony that he's determining that took place and that person 21 says, "This is not mine because I couldn't buy it," however, he 22 sees two other similar weapons that he did buy and could buy it, 23 I would think that the officer would determine at that time that 24 the witness' statement is suspect and questionable, and he would 25 have checked for the following reasons. If the witness before him is making an accusation of a Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 20 of 41 255 1 2 THE COURT: follow-up to verify?" 3 4 Why don't you ask him, "Why did you not MR. GAMEZ: Yes, Judge. I believe I did. Let me rephrase that question, Your Honor. 5 THE COURT: You did not. You said, "Didn't you find it 6 suspicious." 7 trying to get to is whether he investigated it and why not. 8 9 The question you should -- I think that you're MR. GAMEZ: Yes, Judge. BY MR. GAMEZ: 10 Q Okay. 11 tells you: 12 didn't have the proper credentials to get a firearm. 13 you determined that he purchased two firearms and the only way 14 to purchase two firearms legally, that he had to have had the 15 proper credentials, did you investigate what he meant by that? 16 Or why didn't you investigate what he meant by that? 17 A 18 explained to me that he had recently moved and that he -- now he 19 could not purchase the weapons legally, but in the past he had. 20 Nevertheless, we still picked up all the weapons in the We did. Now, when it was determined that Mr. Sergio Gonzalez I couldn't have purchased this firearm because I I did investigate it. I did ask him. And when And he 21 house. All the weapons, including the weapon in question, was 22 taken to the FBI office where it was processed, the serial 23 numbers were ran through dispatch, through Brownsville Police 24 dispatch, and they were photographed in the event that they came 25 up in question later. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 21 of 41 256 1 Q Mr. Torriz, had you checked to see how long he lived in The 2 Border Apartments? 3 A 4 him. 5 investigation. 6 what he was answering at that time. At that precise time, no, we had not checked. We had asked At the time where we barely -- it was a very preliminary We were basing our probable cause based just on 7 MR. GAMEZ: I'd objective to nonresponsiveness. 8 THE COURT: Overruled. 9 He's answered the question. BY MR. GAMEZ: 10 Q Okay. So you did not check to see how long he had lived in 11 the apartment, to see if he just recently moved? 12 fair to say to this jury? 13 MS. BETANCOURT: 14 an asked and answered question. 15 THE COURT: 16 THE WITNESS: Would that be Your Honor, I'm going to object. It's I'll allow it. I don't recall if I asked. He must have 17 just moved. I don't recall if I asked him how long he had been 18 there. 19 been there or how long he hadn't been there. 20 BY MR. GAMEZ: 21 Q 22 he's saying I can't buy this one, so let me check to see if he 23 really has lived -- really has made changes in his address. I'm sure I had. I can't say exactly how long he had Would you think that would be important to check? 24 MS. BETANCOURT: 25 argumentative question. Your Honor, I'll object. Well, It's an Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 22 of 41 257 1 THE COURT: 2 THE WITNESS: 3 BY MR. GAMEZ: 4 Q 5 Yes, sir. I'll allow it. Can you rephrase the question again or -- If I may. THE COURT: Excuse me. I'll allow it only if you can 6 establish that he would be the one who had the responsibility 7 for verifying this information versus someone in charge of the 8 investigation. 9 BY MR. GAMEZ: 10 Q Okay. Were you -- you've already testified that you were 11 assisting in the investigation. 12 A Okay. 13 Q Did you think it was important to check, was the question, 14 that if he tells you: 15 told you this because you're asking him this question -- because 16 I just moved. 17 long he had lived there at The Border Apartments? 18 A 19 have to investigate and see how long he would -- how long he had 20 been there to add credibility to his story. 21 just didn't have the proper identifications to buy the weapons. 22 Q Okay. 23 A I believe so, by whoever the investigating officer, agent 24 is. 25 Q I couldn't purchase a firearm -- and he Did you think it was important to determine how At the time it didn't matter. Eventually, yes, we would But at the time he So you said eventually that would be checked into? Who took over that -- this investigation after you? Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 23 of 41 258 1 A It was Agent Shaun Owens. 2 Q Have you stayed in contact with Mr. Shaun Owens since this 3 investigation, since your part taken in this investigation? 4 A We have spoken on this investigation on other -- 5 Q What's that? 6 A Yes, we do keep in contact. 7 Q Okay. 8 morning out in the front? 9 A That is correct. 10 Q One of the rooms together; am I correct? 11 A That is correct. 12 Q Okay. 13 long did he live at The Border Apartments? And, in fact, you've been together since Monday So did you determine from Mr. Owens, said: 14 MS. BETANCOURT: 15 THE WITNESS: 16 THE COURT: 17 We work out of the same office. Hey, how Because he says -- Judge -- No. Excuse me. There's an objection. When there's an objection, you have to stop. 18 THE WITNESS: Yes, ma'am. 19 MS. BETANCOURT: Yes, Your Honor. Judge, that's hearsay, Your Honor. 20 He's asking the witness to say what someone else told him about 21 the investigation. 22 THE COURT: Sustained. 23 BY MR. GAMEZ: 24 Q 25 firearm purchased on the 5th. Sir, Sergio gave you -- told you many statements about this Would that be correct? Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 24 of 41 259 1 A That is correct. 2 Q And Shaun Owens and you also discussed this case for several 3 months, would that be correct, on and off? 4 A On and off. 5 Q Okay. 6 Owens told you. 7 lived in those apartments for well over a year? 8 9 Not for several months, but -- Well, did you determine -- don't tell me what Shaun Did you determine whether or not Sergio had MR. PONCE: Objection, Your Honor. That's been asked and answered. 10 THE COURT: 11 THE WITNESS: Allow it. Overruled. I do not know how long he's lived there. 12 BY MR. GAMEZ: 13 Q 14 if Sergio, in fact, had just changed address? 15 A No, I do not recall asking that specific question. 16 Q So would it be fair to say that you don't know at this point 17 in time still whether it was a true statement that Sergio made 18 to you that: 19 just moved? 20 A 21 firearm. 22 or whether his utility bill is under his name or not under his 23 name or his driver's license. 24 know that he told me he cannot purchase a weapon, and that was 25 true. Did you ever ask Shaun Owens: Shaun, did you check and see I couldn't purchase that firearm because I had You took his word for it? No, it was a true statement that he could not purchase the I don't know the exact reasons, how long he had moved I don't know all of that. I just Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 25 of 41 260 1 Q And you took that to be the truth? 2 A At the time of my -- my part of the investigation, yes. 3 Q Without checking into its truth and veracity, you took that 4 to be the truth? 5 THE COURT: You don't have to answer the question. 6 already asked it, and he's already answered the question. 7 BY MR. GAMEZ: 8 Q 9 good at this. 10 11 He's The receipt that is Government's Exhibit 12 -- I'm not very Everybody try to read this. What does it say the specific, specificity, if you can read it? 12 THE COURT: Okay. Please refer specifically to the 13 exhibit number that you're showing the witness. 14 BY MR. GAMEZ: 15 Q 16 handwritten, if anything? 17 A 18 Government's Exhibit 12. What does it say, sir, The first word I could read is "pistola." THE INTERPRETER: Gun. 19 BY MR. GAMEZ: 20 Q Second word, sir? 21 A The second word, I can't really make it out. 22 Q Third word? 23 A Nombre. 24 THE INTERPRETER: 25 THE WITNESS: De. Name. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 26 of 41 261 1 THE INTERPRETER: 2 THE WITNESS: 3 BY MR. GAMEZ: 4 Q Of. And in parentheses, Meme. What does that tell you, sir? 5 THE COURT: 6 Speculation. 7 BY MR. GAMEZ: 8 Q You don't have to answer that question. Do you know what that tells you, sir? 9 THE COURT: Speculation. 10 BY MR. GAMEZ: 11 Q Were you told what that meant, sir? 12 A Yes. 13 Q If you were told what that meant, what did you understand 14 that to mean from your investigation? 15 A That that weapon was bought by Meme. 16 Q And is that weapon identifying Meme as the owner of the 17 weapon and purchaser of the weapon? 18 THE COURT: There's two questions, owner versus 19 purchaser. Please ask one or the other. 20 BY MR. GAMEZ: 21 Q 22 receipt tell you who purchased the weapon? 23 A 24 she said that she wrote that that receipt was for the weapon 25 that Meme had bought for her husband or for her son. The first question will be does that information on the Well, it doesn't tell me; but according to Sergio's wife, Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 27 of 41 262 1 Q 2 weapon was purchased then, now I understand, and owned by Meme? 3 Excuse me, by Manuel Pena? 4 A No. 5 Q Okay. 6 A He told me it was his weapon when we first walked in. 7 Q Did he have any proof that he owned that weapon like the 8 other two weapons? 9 A Had it in his possession, and he had the receipt for it. 10 Q And the receipt name is of whom? 11 A Handwritten by the wife, it was in the name of Meme. 12 Q Okay. 13 he -- like his other two weapons that he purchased, Sergio 14 Gonzalez, that he owned that weapon? 15 And did you understand from your investigation that that It was purchased by Manuel Pena and owned by Sergio. Who told you that Sergio owned that weapon? So again I'll ask you, did he have any proof that THE COURT: Asked and answered. 16 answer it. 17 BY MR. GAMEZ: 18 Q 19 may have had that shows: 20 me. You don't have to Do you know of any other proof in your possession that he I own this weapon. It was loaned to I own it, but -- however I own it? 21 MS. BETANCOURT: 22 THE COURT: 23 question. 24 BY MR. GAMEZ: 25 Q Objection, Your Honor. Repetitive. You don't have to answer that I believe you testified that he went with Manuel Pena to see Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 28 of 41 263 1 the weapon that was going to be purchased? 2 A That is correct. 3 Q What did you understand that to mean? 4 A They went to see the weapon, to look at the weapons. 5 believe they had gone to look at weapons before also, but Meme 6 already knew which weapon he wanted to buy for his son. 7 Q 8 his son? 9 A The first weapon? 10 Q The December 5th weapon that you -- 11 A Yes. 12 Q That you understand. 13 A That would be it, sir. 14 Q And took this person to the counter to see the pistol or, 15 excuse me, rifle that he was going to buy? 16 A 17 but Meme knew exactly which rifle Sergio wanted to buy for his 18 son. 19 Q And how did Meme know if you're speculating this? 20 A Sergio said they had gone previously to look at it. 21 Q Did Sergio also tell you that they went that very day and 22 that he was there? 23 A Yes, he was there that day also. 24 Q Okay. 25 firearm, that 270? Okay. I So the first weapon, you understand, was a weapon for The only weapon. Whether it was that day or on a previous day, I don't know, So on that day, they were both together buying that Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 29 of 41 264 1 A Might have been in the -- I don't -- I was not there. I 2 have not seen any surveillance, pictures or videos. 3 they were in the same parking lot, building. 4 the counter together or not, but -- 5 Q 6 the counter with Sergio -- excuse me, with Manuel Pena when you 7 purchased the weapon? 8 A I might have asked him that. 9 Q Okay. 10 A I don't recall the exact response to it. 11 I didn't -- and I have not seen or viewed any type of 12 surveillance, pictures or video or anything like that. 13 Q 14 you find out if, in fact, he was right there in the counter with 15 Manuel Pena buying this straw purchase, as you've alleged? I don't -- I don't know at Are you asking (sic)me you didn't ask Sergio: Were you at I was not there. Would you not think that -- do you think it's important that 16 THE COURT: You don't have to answer that question. 17 It's argumentative. 18 BY MR. GAMEZ: 19 Q 20 Sergio was there with Manuel Pena at the counter buying this 21 firearm? 22 23 24 25 Do you think it's an important element in this case if THE COURT: You don't have to answer that question. Argumentative. MR. GAMEZ: respectfully. Please note my objection, Your Honor, Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 30 of 41 265 1 THE COURT: Noted. 2 BY MR. GAMEZ: 3 Q 4 Those were your very words. 5 A 6 specific rifle that Sergio wanted. 7 Q 8 the rifle? 9 A Excuse me. You testified he went inside to look at it. What did you mean by that? At some point in time, they had gone together to look at the Did you determine at what point in time they went to look at On that day that I was talking to Sergio, no, I did not 10 determine that. 11 Q 12 going to buy a rifle, in your experience of 19 years with FBI, 13 and he's going to buy it for someone else and then lie on the 14 form, would the guy give it to the guy that's right next to him? 15 Have you ever been involved in that type of case? 16 Have you ever been involved in a case where a person is MS. BETANCOURT: Objection, Your Honor. 17 speculative question. 18 assumes facts not in evidence. 19 THE COURT: 20 THE WITNESS: It's an argumentative question, and it Overruled. Can you restate the question again? 21 BY MR. GAMEZ: 22 Q 23 FBI for 19 years, if I understand correctly? 24 A 11 years FBI. 25 Q I stand corrected. Yes, sir. That's a Have you ever been -- you've been involved with 19 total with the PD now. 11 years assigned to FBI and 19 years of Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 31 of 41 266 1 PD. And you've had very few cases that you've been involved, 2 from what I understand, with illegal purchases of firearms? 3 A Correct. 4 Q Especially purchase of one or two firearms. 5 ever been involved in a case where a guy, a person, an 6 individual is going to sign to buy a firearm and take the guy 7 with him to the counter so everyone can see that they're both 8 there and then give him the rifle? 9 in those type of facts? 10 A Those exact circumstances, no. 11 Q Okay. 12 suspect to you? 13 Now, have you Have you ever been involved Similar, yes. Isn't -- to you if that's never happened, isn't that Does it make sense? THE COURT: I'm not going to allow that question to be 14 answered. 15 BY MR. GAMEZ: 16 Q 17 enforcement, was that unusual to you, that someone would take 18 someone and literally put himself into blame by doing this in 19 front of everyone for everyone to see? 20 "Suspect," too general, vague. In your some 20 years of experience wherever as law THE COURT: Okay. Is that unusual to you? You don't have to answer the 21 question. 22 questions you ask of this witness is what he did, what he said, 23 what he saw. 24 25 That's argumentative. MR. GAMEZ: BY MR. GAMEZ: You have to ask the -- the I do not mean to be argumentative, Judge. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 32 of 41 267 1 Q Sir, what Sergio did in going to purchase a firearm with -- 2 on that day, let's say, let us say, would that be unusual to you 3 in your 19 years of experience? 4 MS. BETANCOURT: Again, Your Honor, objection as 5 argumentative. 6 no evidence, and this officer has already testified he can only 7 speculate because he has no knowledge as to who was at the 8 counter. 9 Also assuming facts in evidence. THE COURT: There's been The question -- there's no relevance as to 10 whether it's unusual in this case. You have to ask the 11 questions that require the witness to testify about what he saw, 12 what he did, and what he heard in his presence. 13 BY MR. GAMEZ: 14 Q 15 Manuel Perez when that firearm was purchased? Did you hear that Sergio on that December 5th was with 16 MS. BETANCOURT: Your Honor, I would object if he's 17 calling for a hearsay response. 18 then the government has no objection, if that's the question. If he heard it from Sergio, 19 THE COURT: Is that the question you're asking? 20 MR. GAMEZ: Yes, Judge. 21 THE COURT: All right. 22 THE WITNESS: You may answer that question. Sergio said he took possession of the 23 weapon in the parking lot of Academy, not at the counter. 24 BY MR. GAMEZ: 25 Q My question is did you hear from Sergio: I was at the Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 33 of 41 268 1 counter with Manuel Perez when the firearm was purchased? 2 A No, he did not tell me that. 3 Q Now, at any time did you inform Sergio that in your opinion, 4 he had violated the law? 5 A Yes, I did. 6 Q And what did you tell him, if anything, at that time? 7 A That we were conducting an investigation as to the illegal 8 purchase of that firearm and that we'd like to continue talking 9 to him and investigating the transaction. 10 Q And did Sergio Gonzalez tell you: I didn't buy it. I 11 didn't buy it. 12 A 13 all -- but he -- it was his weapon, but that he had asked Meme 14 to buy it for him as a favor. 15 Q 16 witness in this case and not a defendant? 17 A No. 18 Q By you or by anyone that you're aware of? 19 A That I'm aware of, no. 20 Q Did you not tell -- do you remember -- did you tell Sergio: 21 It's better that you be a witness in this case than a defendant? 22 Do you remember that, saying that? 23 A 24 and be truthful with the investigation, yes. 25 tell all my -- all the people I interview or talk to. Meme did? No, he said that he asked Meme to buy it for him, but for Did you ever make a deal with Sergio Gonzalez to be a No deal. I recall saying that it's in his best interests to cooperate That's something I Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 34 of 41 269 1 Q What did you mean by that? 2 A To be totally honest. 3 Q What do you mean it would be in his best interests? 4 A Lying only gets people in more trouble. 5 Q And in this case, how was he going to get in more trouble 6 than he was already in? 7 A It just complicates the investigation. 8 Q Mr. Torriz, what did you mean it would be in your best -- 9 he's being investigated for a felony. What did you mean by that? What did you mean when 10 you told this man: 11 Mr. Sergio Gonzalez, if you cooperate with us? 12 It would be in your best interests, MS. BETANCOURT: 13 answered. 14 argumentative question. 15 Objection. That's been asked and He's answered the question. THE COURT: It's also a very Sustained. 16 BY MR. GAMEZ: 17 Q 18 going to arrest you? 19 A No. 20 Q What did you tell him that he was led to believe that it 21 would be in his best interests to cooperate then? 22 tell you? 23 A 24 and a potential violation of the purchase -- illegal purchase of 25 a weapon and that we were going to continue the investigation. Did you tell him: If you do not cooperate with us, we're That he had violated a law. What did he That there was an investigation Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 35 of 41 270 1 And that it would be in his best interest to be totally truthful 2 with us. 3 Q How was it going to be in his best interest? 4 THE COURT: Asked and answered. 5 MS. BETANCOURT: Asked and answered. 6 BY MR. GAMEZ: 7 Q Has Sergio been paid any money in this case? 8 A No. 9 Q Has Sergio since then been cooperating with you? 10 A He's been totally truthful with us. 11 Q In this case and other cases? 12 A As far as I know, this is the only case that he is assisting 13 us with. 14 Q Did he -- 15 A Or being a witness. 16 Q Did he ever tell you: 17 aliency card. 18 A No, he did not tell me that. 19 Q Did you threaten to take his resident aliency card? 20 A I'm in no position or authority to do that. 21 Q If someone is charged with a felony, would you not agree, 22 and convicted of a felony, a resident alien would lose his right 23 to be in the -- live -- be a resident of the State of Texas? 24 25 Yes, I believe he has. I can't afford to lose my resident I'll do whatever you ask? MS. BETANCOURT: Objection, Your Honor, speculative. This witness testified he doesn't have any immigration authority Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 36 of 41 271 1 or knowledge. 2 THE COURT: Sustained. 3 BY MR. GAMEZ: 4 Q 5 deal with Mexican Nationals? 6 A Yes, I have. 7 Q Have you been involved in multiple cases dealing with 8 resident aliens? 9 A Yes, I have. 10 Q Have you been involved in multiple cases with United States 11 citizens? 12 A Yes, I have. 13 Q Okay. 14 involved with resident aliens, and been involved in cases with 15 American citizens. 16 alien who is convicted of a felony? 17 Okay, sir. Have you been involved in multiple cases that Been involved with cases, Mexican Nationals, been Are you aware of what happens to a resident MS. BETANCOURT: Objection, Your Honor, speculation. 18 It's asking this defendant, who is a Brownsville police officer, 19 to apply immigration law to a hypothetical set of facts that are 20 not in evidence. 21 22 23 THE COURT: all. He's a witness, not a defendant, first of But second, he's already answered the question. You don't have to answer the question. 24 THE WITNESS: 25 MR. GAMEZ: Yes, Your Honor. Please note my objection, Judge. Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 37 of 41 272 1 THE COURT: Sustained. 2 BY MR. GAMEZ: 3 Q 4 officer what happens to a resident alien if he's convicted of a 5 misdemeanor Class A; not a felony, but lesser, of a misdemeanor 6 Class A, sir? Do you know from your experience of 19 years as a police 7 8 MS. BETANCOURT: are repetitive. Objection, Your Honor. These questions They've been asked and answered. 9 MR. GAMEZ: I'm asking if he knows, Judge. 10 THE COURT: He's already said he doesn't. 11 MR. GAMEZ: Please note my objection. Sustained. 12 BY MR. GAMEZ: 13 Q 14 that if he did not cooperate, he would not lose his residency 15 card? 16 A 17 So am I to understand at no time did Sergio Gonzalez believe I don't know what -THE COURT: Excuse me. That requires him to speculate 18 as to what the other person knew. You have to ask him what this 19 witness told that person, and you can ask Sergio Gonzalez what 20 he believed. 21 BY MR. GAMEZ: 22 Q 23 you or anyone else in your surrounding, that: 24 Mr. Gonzalez. 25 resident alien's card? Were you ever present -- was Sergio ever told that he, by Look, Sergio, If you don't cooperate, you're going to lose your Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 38 of 41 273 1 A I don't recall anybody telling him that. 2 Q Did you ever offer Mr. Sergio -- and I'm not trying to be 3 argumentative, sir. 4 this case or any other case? 5 6 MS. BETANCOURT: Objection, Your Honor. THE COURT: 8 THE WITNESS: No, not been asked. Overruled. No. BY MR. GAMEZ: 10 Q 11 argumentative. 12 Gonzalez money for this case or any other case? 13 A Okay. Do you know -- and again, I don't mean to be Do you know if anyone asked, offered Mr. Sergio No. 14 MR. GAMEZ: 15 MS. BETANCOURT: 16 THE COURT: 17 THE WITNESS: 18 THE COURT: 19 MS. BETANCOURT: 20 THE COURT: 21 THE WITNESS: 22 THE COURT: 23 24 25 That's been asked and answered. 7 9 But did you ever offer him any money for Pass the witness, Judge. Your Honor, I have nothing further. All right, sir. You may step down. Thank you, Your Honor. Call your next witness. Government calls Michael Deans. All right, sir. First of all, good morning. Good morning, Your Honor. And please speak into the microphone so that your voice is amplified. THE WITNESS: Yes, Your Honor. MICHAEL DEANS, Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 39 of 41 274 1 the witness, having been previously duly cautioned and sworn to 2 tell the truth, the whole truth and nothing but the truth, 3 testified as follows: 4 DIRECT EXAMINATION 5 BY MS. BETANCOURT: 6 Q Agent Deans, can you please tell the jury your full name. 7 A My full name is Michael Everard Deans. 8 Q And, Agent Deans, what do you do for a living? 9 A I'm a special agent. 10 Q Who do you work for? 11 A I work for Immigration and Customs Enforcement, Office of 12 Professional Responsibility. 13 Q 14 job duties entail? 15 A 16 misconduct within ICE, Customs and Border Protection, and CIS. 17 Q 18 sorry, December the 5th of 2011, did you, in fact, get a call 19 regarding some possible misconduct of a Customs agent by the 20 name of Manuel Pena involving a straw purchase of a gun? 21 A Yes, I did. 22 Q Who did you get that call from? 23 A From Thomas Morrisey, a co-worker of mine. 24 Q And the information or the investigation that you were asked 25 to participate in, what did the misconduct by Mr. Pena involve? Can you give just a very brief description as to what your Office of Professional Responsibility investigates employee At some point in time on December the 5th of 2005 -- I'm Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 40 of 41 275 1 A He was seen by HSI agents at Academy Sports Store here in 2 Brownsville at the gun counter and later seen outside 3 transferring a weapon to an unknown individual at that time. 4 Q 5 on that particular day, what time of day? 6 A It was later in the day. 7 Q And when you got that phone call, what did you do? 8 A I coordinated with the HSI agents that were on scene, Gus 9 Gonzalez. So when you get the call in December the 5th, when is this I would say between 2:00, 3:00. After they had seen what transpired outside Academy, 10 they tried to follow the vehicle that Mr. Pena placed the rifle 11 in. 12 They later found the vehicle at The Border Apartment complex. 13 Q Was that here in Brownsville, Texas? 14 A Yes, ma'am. 15 Q And did you join Agent Gonzalez and his group at some point 16 in time? 17 A 18 the evening. 19 Q 20 at that point? 21 A 22 basically tell me what he had seen throughout the day. 23 Q And where did that meeting take place? 24 A It took place in the parking lot of the Boot Jack beside the 25 old Hooters. And for a short period, they could not find the vehicle. I did later on in the evening. It was approximately 6:00 in And what was the purpose of meeting up with Agent Gonzalez So I could do a face-to-face with Agent Gonzalez for him to Case 1:12-cr-00472 Document 103 Filed in TXSD on 01/22/13 Page 41 of 41 276 1 Q Here in Brownsville, Texas? 2 A Yes, ma'am. 3 Q And that would be right next to The Borders Apartments? 4 A Yes, ma'am. 5 Q Did you ever go to The Borders Apartments on December 6 the 5th of 2011? 7 A No, I didn't. 8 Q As y'all are meeting there at the Boot Jack parking lot, 9 what is the decision made as the next step in the investigation 10 will be? 11 A 12 approach the apartment that was identified by Gus and his group 13 because the individual from that apartment had departed the 14 apartment. 15 Q 16 group that goes up to that apartment there, The Borders 17 Apartments, to make contact with that person who had custody of 18 that gun? 19 A Yes, ma'am. 20 Q All right. 21 approach? 22 A 23 cover team. 24 apartment, to Mr. Gonzalez. 25 Q The decision was made to wait until the following day to And on the next day, December the 6th, are you part of the And what is your role in that December 6th On the December 6th approach, I was basically part of a I went in after PD officers had gained entry to the And when you went into the apartment after the PD officers, Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 1 of 41 277 1 what did you see? 2 A 3 box on the kitchen table that the PD officers had already 4 identified prior to me getting in the apartment. 5 Q Did you take a look at that gun and examine that gun? 6 A Yes, ma'am. 7 Q All right. 8 as to where it had come from? 9 A I saw a rifle that was in a board card -- brown cardboard And did you make any investigation into that gun It was purchased from the Academy Sports Store the day prior 10 on the 5th of December. 11 MS. BETANCOURT: 12 May I use the overhead device, Your Honor? 13 THE COURT: All right. 14 BY MS. BETANCOURT: 15 Q 16 showing the purchase of a -- or showing the contents to be a 17 Model 770. 18 A Yes, ma'am. 19 Q All right. 20 Exhibit No. 8, can you tell the jury what that is? 21 A 22 prior. 23 Q 24 Exhibit No. 16, is this the type of box you're referring to that 25 you saw on the table? Exhibit No. 7, Government's Exhibit No. 7, a Remington box Is that the box that you're referring to? And inside this box in Government's It's the rifle, the Remington 770 that was purchased the day Okay. And when you say that you saw the box, Government's Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 2 of 41 278 1 A Yes, ma'am. 2 Q Did you participate in a continued search of the apartment? 3 A I -- by the time I got to the apartment, it was already 4 cleared, searched. 5 apartment that agents were retrieving and gathering to place on 6 the dining room table. 7 Q And did you see those other weapons found in the apartment? 8 A Yes, ma'am. 9 Q Exhibit No. 10, Government's Exhibit 10, is this weapon Mr. Gonzalez had other weapons in the 10 familiar to you as to one of those that was found in the home of 11 Sergio Gonzalez? 12 A Yes, ma'am. 13 Q And Exhibit No. 11, Government's Exhibit No. 11, again I'll 14 ask, is that government -- is that weapon familiar to you as to 15 one of those that was found in Mr. Gonzalez's home? 16 A Yes. 17 Q And that was on December the 6th when y'all were there 18 making the approach with the BPD officers? 19 A Yes. 20 Q At any point in time, were you involved in the interview of 21 the person who was the subject of the questioning, Sergio 22 Gonzalez? 23 A 24 Spanish, and my Spanish is limited. 25 Q I was present during the interview, but it was conducted in So do you have any knowledge or recollection that you could Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 3 of 41 279 1 share with the jury about what Mr. Gonzalez was saying? 2 A Only what was passed to me from other agents. 3 Q Now, at some point in time, was there an investigative 4 decision to make another straw purchase of a weapon or to ask 5 Manuel Pena to make another straw purchase of a weapon? 6 A Yes. 7 Q All right. 8 about? 9 A Can you please tell the jury how that came After the 6th, after we interviewed Mr. Gonzalez, shortly 10 after we made a determination that we were going to attempt to 11 have Mr. Gonzalez approach Manuel Pena to buy a second weapon. 12 Q 13 Mr. Pena to buy a second weapon? 14 A Yes, he did. 15 Q And did that, in fact, happen? 16 second weapon? 17 A Yes, he did. 18 Q All right. 19 A It took place on December 19th, 2011. 20 Q And where did it take place? 21 A At the Academy Sports Store here in Brownsville, Texas. 22 Q How did that occur? 23 the purchase or setting up the purchase? 24 A 25 that morning at a parking lot here in Brownsville, Texas. And did Mr. Gonzalez, in fact, make that approach and ask Did Mr. Pena agree to buy a When did that take place, Agent Deans? Were you involved in either witnessing I initially set up the purchase with Mr. Gonzalez. We met Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 4 of 41 280 1 Mr. Gonzalez was given $400 by me to purchase the second rifle. 2 Q $400 in what? 3 A In -- 4 Q Did you give him a check? 5 Did you give him cash? 6 A In cash. 7 Q And after giving him the $400 in cash, what did you do? 8 A A couple phone calls were made to Mr. Pena to see if he was 9 able to purchase the weapon that morning. Did you give him a credit card? He eventually got to 10 the Academy Sports Store a little after 10:00 in the morning, 11 and Mr. Gonzalez met with him there at Academy where Mr. Pena 12 purchased the second rifle. 13 Q And where were you during that transaction? 14 A I was in the parking lot adjacent to Chick-Fil-A here in 15 Brownsville, Texas. 16 Q The Chick-Fil-A by the Academy store? 17 A Yes, ma'am. 18 Q And did you witness -- did you ever go inside the Academy 19 store while the December 19th purchase was being made? 20 A No, I didn't. 21 Q All right. 22 when Manuel Pena was leaving the Academy after the December 19th 23 purchase? 24 A 25 agents already positioned within the parking lot. No. Did you ever go into the Academy parking lot I stayed out of the parking lot because we had other Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 5 of 41 281 1 Q After the purchase was made, what was your next role? 2 A We met with Mr. Gonzalez afterwards at a parking lot close 3 by and retrieved the rifle and the remain from the change. 4 Q Of the $400? 5 A Yes, ma'am. 6 Q In cash that had been given to purchase the weapon? 7 A Yes, ma'am. 8 Q And any -- and any other documentation? 9 A He gave us the rifle and the receipt. 10 Q I'm going to show you Government's Exhibit No. 12 here on 11 the overhead projector and ask if you recognize this photograph. 12 A Yes, I do. 13 Q Did you, in fact, take this photograph? 14 A Yes, ma'am. 15 Q Exhibit No. 12, will you explain to the jury what this is a 16 photograph of? 17 A 18 Mr. Gonzalez to purchase the second rifle. 19 Q And that was given to Mr. Gonzalez prior to the purchase? 20 A Yes, ma'am. 21 Q And Exhibit No. 19, this receipt. 22 jury where you got this document? 23 A 24 the parking lot. 25 Q This is a copy of the four $100 bills that was provided to Can you explain to the I received that from Mr. Gonzalez after we met with him in And the receipt shows how much cash was tendered for the Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 6 of 41 282 1 purchase of this gun? 2 A $400, and the change was 74.41. 3 Q And did you receive that 74.41 back from Sergio Gonzalez? 4 A Yes, I did. 5 Q There is a serial number on this receipt. 6 the jury the serial number of the weapon purchased on December 7 the 19th? 8 A The serial number is M71716198. 9 Q Okay. Can you read for When you say that you received the weapon, you 10 received the weapon right then and there within minutes of the 11 sale of December 19th? 12 A Yes, I did. 13 Q And I'm going to show you Government's Exhibit -- 14 MS. BETANCOURT: 15 THE COURT: 16 BY MS. BETANCOURT: 17 Q 18 you could, in comparing the serial number on this box with the 19 exhibit -- I'm sorry, the serial number on Exhibit No. 26 with 20 Exhibit No. -- the exhibit on display, do those match? 21 A Yes, they do. 22 Q So Exhibit No. 26 then is the gun or the box from the gun 23 that you got from Sergio right then and there? 24 A Yes. 25 Q After the December 19th sale, did you do any other follow-up Exhibit No. 26. Your Honor, may I approach the witness? Yes. If you can take a look at this box. And if Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 7 of 41 283 1 investigation with Academy regarding the paperwork used to 2 purchase Government's Exhibit 26? 3 A 4 out to purchase the weapon. 5 Q 6 Exhibit No. 20 is -- when you say "the form," is this the form 7 you received, the ATF Form 4473? 8 A Yes, it is. 9 Q And this is a firearms transaction record for what sale? I received a copy of the ATF forms that Mr. Pena had filled I will show you Government's Exhibit No. 20. Government's 10 Who's the purchaser of the weapon? 11 A Manuel Pena. 12 Q Okay. 13 Academy, from the Academy records the very next day, so you 14 would have gotten this on December the 20th? 15 A Yes. 16 Q And it reflects the person as the buyer who is signing as 17 the actual buyer here as who? 18 A As Manuel Pena. 19 Q And in Question No. 11A when he is asked to tell the Academy 20 store, "Are you the actual purchaser of the weapon," he answers 21 how in this form? 22 A He answered yes. 23 Q The serial number of the form -- on the form for the gun 24 that's being purchased in Government's Exhibit No. 20, will you 25 take a look at that, the M71716198, and will you compare that -- And this is the -- this is the form you received from Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 8 of 41 284 1 2 MS. BETANCOURT: Your Honor, may I approach the witness again? 3 THE COURT: Yes. 4 BY MS. BETANCOURT: 5 Q 6 Form 4473 match the weapon that you were given that was bought 7 at the Academy? 8 A Yes, it does. 9 Q Did you also try to obtain some video from Academy for that -- with Government's Exhibit No. 26? And I'll ask, does the 10 particular sale? 11 A Yes, I did. 12 Q All right. 13 asked of Academy in order to capture that video. 14 A 15 the store video. 16 knowledge of the camera system, went back to the camera room 17 with him, and he was able to bring up the date, time, based on 18 the receipt that I had and was able to view a video shot of 19 Mr. Pena at the gun counter there at Academy. 20 video up full-length and then attempted to copy that video onto 21 a CD. 22 Q 23 videos, did you find that the Academy store person helping with 24 this, had he actually punched the right button and actually 25 recorded what you asked him to copy for you? And tell the jury how you asked or what you Well, I went back to the Academy to attempt to get a copy of I spoke to one of the managers there that had He brought that When you got back to the office and later viewed those Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 9 of 41 285 1 A No. He copied -- what was copied onto the video was video 2 shot of the day that I went to request the video. 3 actual date that Mr. Manuel Pena had purchased the rifle. 4 Q 5 December 19th video, did you go back then and doublecheck the 6 December 5th video? 7 A Yes, I did. 8 Q And what did you find out had happened on that particular 9 day when we had asked the Academy store person to record the It wasn't the And after learning that had happened on the 10 video? 11 A 12 view a video shot of Mr. Pena at the gun counter when it was 13 brought up on the screen by the manager. 14 record the video onto a CD, what was recorded was the actual 15 live recording of the day that I was there requesting a video. 16 Q 17 me the wrong thing? The same thing happened. I was able, while I was there, to But when he went to Did you go back then to Academy and say: Hey, you guys gave We had a technical malfunction? I need -- 18 MR. GAMEZ: Objection to leading, Judge. 19 THE COURT: I'm going to allow it. 20 BY MS. BETANCOURT: 21 Q Did you ask for the correct video? 22 A Yes, we did, but it was -- they had upgraded their system, 23 and the videos were no longer available. 24 Q 25 of Mr. Pena for this offense on May the 24th of 2012? Go ahead. Later in your investigation, were you involved in the arrest Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 10 of 41286 1 A Yes, I was. 2 Q After that arrest, did you participate in an interview of 3 Mr. Pena where he was questioned about his involvement in the 4 straw purchase? 5 A Yes, I was. 6 Q Where did that interview take place? 7 A It took place at the FBI Brownsville office. 8 Q And who was the lead -- the person leading the questioning 9 of Mr. Pena? 10 A It was FBI Agent Shaun Owen. 11 Q Now I'm going to ask you. 12 Pena. 13 interview of who was questioned on May 24th here in the 14 courtroom today? 15 A Yes, I do. 16 Q So that the jury knows who you're speaking of, could you 17 please identify him by what he's wearing and where he's sitting 18 in the courtroom? 19 A 20 jacket, light colored shirt and dark colored tie. 21 22 We've been saying the name Manuel Do you see the person whom you were involved in an He's the first chair at the defense table wearing a black MS. BETANCOURT: Your Honor, may the record reflect that the witness has identified the defendant, Manuel Pena? 23 THE COURT: 24 BY MS. BETANCOURT: 25 Q Okay. The record will so reflect. Was Mr. Pena brought into the FBI office and asked to Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 11 of 41287 1 answer some questions? 2 A Yes, he was. 3 Q Did he agree to do that? 4 A Yes, he did. 5 Q Did you read him his rights to make him aware that he had 6 some rights prior to answering any questions? 7 A Yes, he was. 8 Q Who did the actual reading of those rights? 9 A I believe I did. 10 Q And did you read him those rights in English or in Spanish? 11 A In English. 12 Q Was the interview conducted in English or in Spanish? 13 A In English. 14 Q And did Mr. Pena agree to waive those rights and answer the 15 questions? 16 A Yes, he did. 17 Q All right. 18 the questioning after the rights were read? 19 A It was primarily myself and Shaun Owen. 20 Q And Shaun Owen is employed with who? 21 A With the FBI. 22 Q Exhibit No. 28. 23 can you briefly just explain to the jury what this document is? 24 A It is a statement of rights form. 25 Q And at the bottom, there is a signature on Government's And who else was the investigator involved in Exhibit No. -- Government's Exhibit No. 28, Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 12 of 41288 1 Exhibit No. 28. 2 A It was signed by Manuel Pena. 3 Q And was that done in your presence? 4 A Yes, ma'am. 5 Q Was that done after the warnings were read? 6 A Yes. 7 Q And was that done after the waiver was read? 8 A Yes. 9 Q And did you read that out loud to him so that he understood? 10 A Yes. 11 Q And who is signing here on the bottom as the witnesses? 12 A That would be Shaun Owen and myself. 13 Q And here the date is reflected. 14 that tell us? 15 A The date and time that the advisement was read. 16 Q And that would be on May the 24th, 2012, and this 01 -- 0818 17 tells us? 18 A It was done at 8:18 in the morning. 19 Q When questioned about the December 5th and December 19th of 20 2011 guns at Academy, what did this defendant tell you in the 21 interview? 22 A 23 about the weapons, he initially didn't have an issue with it. 24 He said he didn't do anything wrong. 25 Whose signature is that? What does that -- what does He -- initially when we told him about why he was there and Later on in the interview when we further asked him Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 13 of 41289 1 questions about the weapons, he stated that they were at his 2 friend's house; that they were both 30-06 Mossberg rifles. 3 Q 4 had the guns in his possession? 5 A 6 took them to a deer lease where he had fired and sighted them. 7 Q 8 had been paid for? 9 A Did he tell you anything about whether or not he had ever Yes. He stated that he had the guns. After buying them, he Did he ever make any statements to you about how the guns He stated that it was a community purchase by members of the 10 deer lease. They all put money in together to purchase the 11 weapons and that Mr. Gonzalez never gave him any money for the 12 weapons. 13 Q Did he tell you where the guns were currently located? 14 A He stated that Mr. Gonzalez currently had the weapons in his 15 possession. 16 Q But, in fact, those guns were in possession of the FBI? 17 A Yes, they were. 18 Q And had been in possession of the FBI since when? 19 A The first rifle, since the day after, on the 6th. 20 second rifle, right after it was purchased. 21 Q 22 the FBI? 23 A No, they haven't. 24 Q To your knowledge, could they ever been -- could they ever 25 have traveled to a deer lease? And the And to your knowledge, did they ever leave the custody of Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 14 of 41290 1 A No. 2 Q To your knowledge, could they ever have been sighted in the 3 deer lease? 4 A No. 5 Q To your knowledge, could they have ever been left in the 6 custody of Sergio Gonzalez? 7 A No. 8 MS. BETANCOURT: 9 THE COURT: I'll pass the witness, Your Honor. Mr. Gamez? 10 CROSS-EXAMINATION 11 BY MR. GAMEZ: 12 Q Good morning, sir. 13 A Good morning, sir. 14 Q Agent Dean, how did you find the whereabouts or the address 15 of Mr. Sergio Gonzalez? 16 A Is that on the 5th or just in general? 17 Q Yes. 18 of you find out where Mr. Gonzalez lived? 19 A 20 HSI agents at Academy, they had a partial plate, a partial 21 number from Mr. Gonzalez's plate that they were able to run in 22 the system and found out that he was a crosser through the POE 23 and subsequently found out that he was living in The Border 24 Apartments. 25 Q How did you find out where Mr. Gonzalez -- how did all Okay. Based on the surveillance that was conducted by the He was a crosser? What do you mean? Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 15 of 41291 1 A That through records check, that he crossed the POE in that 2 vehicle that was seen at Academy. 3 Q For the jury, what does POE mean? 4 A The port of entry. 5 Q What does that mean for a jury? 6 not a -- port of entry, what does that mean? 7 A 8 Gateway Bridge, those are considered port of entries. 9 Q What do you mean port of -- That means the B&M Bridge here in Brownsville, Texas. Okay. The And what was the address on the license plates that 10 you found out of? 11 A 12 number initially found the address and passed it on to us. 13 don't recall the exact address. 14 Q Where are tags registered at as far as addresses? 15 A It came -- it came back to that Border Apartment. 16 Q Yes, but where are tags registered at? 17 are they registered at, where you buy your tags? 18 A With the state. 19 Q Okay. 20 A Yes. 21 Q Okay. 22 A Yes. 23 Q And where do you go? 24 A To the courthouse downtown. 25 Q Okay. I don't know the address. The agents that queried his tag What local agency Would that be the tax and title state agencies? So have you ever bought tags for a car? And what do you do? I Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 16 of 41292 1 A Provide them a bill of sale and your car documents. 2 Q And your address? 3 A Yes. 4 Q Okay. 5 agency? 6 A Your tag. 7 Q Okay. 8 common for you to do; am I correct? 9 A Yes. 10 Q Okay. 11 where the address is of the person who purchased that -- those 12 tags or those plates? 13 A Yes. 14 Q Okay. 15 correct? 16 A No. 17 Q Okay. 18 residency aliency card? 19 A Yes. 20 Q Did you determine that he had a driver's license? 21 A Yes. 22 Q Okay. 23 with him. 24 A I don't recall if he did. 25 Q Okay. And then they give you what, if anything, the state So when you run someone's plates -- and this would be Then you would receive back information as far as That's not uncommon. That's pretty normal; am I Now, did you determine that our Sergio Gonzalez had a Now, he said he didn't have any other identification Did he have other identification with him? Let's look at the exhibit that you were asked -- that Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 17 of 41293 1 you were asked to review by the prosecutor. And that was 2 Exhibit -- I believe 20. 3 Government's exhibit, but look at 20B, 20C. 4 you, if you know? 5 A 20C states, "Documentation for all aliens." 6 Q Okay. 7 that is requested, if someone is going to buy a firearm, whether 8 it's a pawn shop or Academy or anyone else, these are documents 9 that are needed to purchase a firearm. Look, please, at 20, Exhibit 20, the What does 20C tell If you can read it. Do you see where it says some of the documentation Would you not agree? 10 A Yes. 11 Q Fairly simple. 12 A Not the entire document, no. 13 Q Okay. 14 says there utility bills, that being a resident alien, because 15 it says "Documentation for aliens." 16 A Yes. 17 Q Right here. 18 A Yes. 19 Q Current bank statements? 20 A Yes. 21 Q Rent receipts, mortgage payments, lease agreements. 22 determine whether or not Sergio Gonzalez owned a home? 23 A Whether or not he owned a home? 24 Q Yes. He and his wife owned a home? 25 A Yes. I did later find out that he owned a home. You've reviewed this, I'm sure. But some things you can produce, and you say -- it Okay. Would that be one? One, it says utility bills, correct? Did you Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 18 of 41294 1 Q Okay. When you own a home, he wasn't living there. 2 renting it out, right? 3 A Yes. 4 Q Okay. 5 A Yes. 6 Q Okay. 7 land tied. 8 A No. 9 Q Okay. So many times people do that. He was Would you agree? But have you ever heard that -- someone used a term Do you know what that means? Would you have any reason to disagree with a manager 10 or director of Academy if someone says we need proof of being 11 land tied? 12 land tied means belonging, living in the State of Texas? 13 A I don't know what it means. 14 Q Okay. 15 Would you have any reason to disagree with the term That's fair, sir. Thank you. But if you look at this, did Sergio Gonzalez tell you: I 16 didn't have any proof that I was living in the State of Texas or 17 that I was a resident here or that I didn't have any utility 18 bills. 19 he couldn't purchase the firearm? 20 A 21 was conducted in Spanish. 22 out that he did have a driver's license, resident alien card, 23 but the utility was not in his name. 24 Q 25 from you while they were talking to Sergio Gonzalez, were they? I couldn't buy it. Did he -- what did he tell you why Well, I didn't speak to him directly because the interview Okay. That's fair. But from other agents, it was found Now, the agents weren't hiding anything Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 19 of 41295 1 A No. 2 Q So someone was talking to Sergio in Spanish, and it was 3 being interpreted to you. 4 A Somewhat. 5 Q How do you know that, sir? 6 don't -- they weren't withholding anything from you. 7 A 8 but not everything that was being spoke about during the 9 interview was told to me. Yes. Would that be fair to say? Not everything was told to me, but -I mean, you just said they But, I mean, I do understand a little bit of Spanish, 10 Q Okay. So some of the stuff, some of the Spanish that was 11 told to you, you understood, because that's why it wasn't told 12 to you? 13 A 14 questions, and some things were told to me. 15 Q 16 important things -- that: 17 had someone else do it. 18 A Yes. 19 Q Okay. 20 driver's license. 21 And what -- it says here personal tax bills. 22 home, who has to pay the taxes? The conversations were long. The important things, I asked Was that important when Sergio told you -- you said the Hey, I couldn't buy a firearm so I Was that important to you? He believed that he couldn't purchase the weapon. Let's look at -- he has a resident card. He has a I believe those are musts, and he had it. 23 THE COURT: Excuse me. 24 than real estate property. 25 MR. GAMEZ: Yes, Judge. If a person owns a Personal property is different Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 20 of 41296 1 BY MR. GAMEZ: 2 Q If a person -- 3 4 THE COURT: Are you asking him about the phrase you prefaced your question with or real estate taxes? 5 MR. GAMEZ: Personal property tax bills. 6 be a personal property tax bill. 7 would be real. 8 9 I agree, Judge. Personal property being items such as this. Real estate being a home, a house, a building. 10 11 If a person owns a home, it It doesn't say real. THE COURT: So this would MR. GAMEZ: Yes, real property. bill, but I'm suggesting the following. It doesn't say real tax If he -- 12 THE COURT: Ask him about personal property tax. 13 MR. GAMEZ: Yes, Judge. 14 BY MR. GAMEZ: 15 Q Did you ask if he had any personal property tax bills? 16 A No, I didn't. 17 Q So you don't know if he had any personal property tax bills? 18 A No. 19 Q Okay. 20 A No. 21 Q Okay. 22 property tax bills? 23 government agencies. 24 25 Do you know if he had any real estate tax bills? Let's go down even further. What does it say after Documents issued by federal, state or local Now, let's stick with the question I asked you about license plate. Would you consider a local government where you pay your Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 21 of 41297 1 license plate agency a local government agency? 2 A Can you rephrase your question? 3 Q Would you consider where you pay your tax bill -- excuse me, 4 where you pay your license plates, tax, title, license, you pay 5 that to a local government agency? 6 A Yes. 7 Q Okay. 8 Apartments where his license plates were registered, did you 9 not? So -- and you found his address being at Border 10 A Yes. 11 Q So he, in fact -- you, in fact, checked at a local agency 12 through documents filed in a local agency that showed his 13 address? 14 A Based on his tag, yes. 15 Q Yes. 16 addresses, he would have been able, most certainly, to buy a 17 firearm, wouldn't he? 18 A Based on this document, yes. 19 Q So he was not a prohibited person from buying a firearm, was 20 he? 21 A No. 22 Q In fact, he purchased two other firearms, didn't he? 23 A Yes. 24 Q Sir, when you investigate a case, do you try to investigate 25 some of the evidence or all of the evidence? So if Sergio had bought those tags and used his tag Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 22 of 41298 1 A All the evidence. 2 Q Do you think it's fair to investigate some of the evidence 3 or all the evidence? 4 MS. BETANCOURT: 5 argumentative question. 6 THE COURT: Objection, Your Honor. Sustained. 7 BY MR. GAMEZ: 8 Q You said you investigate all the evidence. 9 A Yes. 10 Q All the relevant evidence? 11 A Yes. 12 Q Okay. 13 A Yes. 14 All the material evidence? MS. BETANCOURT: 15 BY MR. GAMEZ: 16 Q 17 18 That's an Again, Your Honor -- This is what you would do? MS. BETANCOURT: Those are argumentative questions. They don't ask any facts or ask any question of the witness. 19 THE COURT: All right. Mr. Gamez, please. I will -- I 20 will -- I am concerned about your not asking the witness what he 21 did, what he saw, what he heard. 22 BY MR. GAMEZ: 23 Q 24 position on how he purchased the firearm? 25 A What you did. Yes, I did. Did you talk -- find out from Mr. Pena his Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 23 of 41299 1 Q Did he tell you it was a firearm for everyone in the deer 2 lease? 3 A 4 the deer lease. 5 Q Did he tell you: 6 A He stated that money was pooled together to purchase the 7 rifle, but that he bought it. 8 Q 9 you ever been in a deer lease? He said that it was a community rifle for people to use in I purchased it. It's my rifle? Didn't he tell you the money was pooled together for -- have 10 A No, I haven't. 11 Q Okay. 12 case, have you found out how many deer leases are run or what 13 the norm is on how you expend monies on a deer lease or a deer 14 ranch? 15 A 16 it's operated. 17 Q 18 idea. 19 especially people that are not well-off, well-off, that join in 20 expenses? 21 Have you found out how many deer leases -- since this I have friends that are in deer leases. Okay. I have an idea how So you've never done this personally, but you have an Do you know that many times people, if not most, MS. BETANCOURT: Objection, Your Honor. 22 speculative. 23 He has no personal knowledge. It's He's already answered that he cannot answer that. 24 THE COURT: Sustained. 25 MR. GAMEZ: Your Honor, I would ask that counsel make Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 24 of 41300 1 legal objections, Your Honor. 2 3 THE COURT: She's made a legal objection, and I've sustained it. 4 MR. GAMEZ: Okay. 5 BY MR. GAMEZ: 6 Q 7 the deer ranch, in the deer lease that Mr. Pena had discussed 8 with you? 9 Sir, would it have been fair to approach the witnesses in THE COURT: You don't have to answer that question. 10 It's argumentative. 11 BY MR. GAMEZ: 12 Q Did you go and speak to witnesses in the deer ranch? 13 A No, I didn't. 14 Q Don't you think that would have been important? 15 MS. BETANCOURT: 16 a factual representation. 17 It's argumentative. 18 THE COURT: Objection, Your Honor. It does not ask It merely argues with the witness. Sustained. 19 BY MR. GAMEZ: 20 Q 21 to determine -- or lease -- if this was true or not? 22 A Because I knew it was not true. 23 Q So is it fair to say that you only -- you did only speak to 24 the witnesses you chose to pick, to talk to? 25 A Why didn't you go speak to the witnesses of the deer ranch I spoke to relevant witnesses. Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 25 of 41301 1 Q That you felt were relevant? 2 A Yes. 3 Q And you chose not to consider any of the other witnesses? 4 A Correct. 5 Q And is this how you investigate this case? 6 investigated this case? 7 MS. BETANCOURT: 8 THE COURT: 9 Is this how you Objection, Your Honor. Argumentative. You don't have to answer the question. 10 BY MR. GAMEZ: 11 Q 12 Is this how you generally investigate cases? THE COURT: Argumentative. You don't have to answer 13 that question. 14 BY MR. GAMEZ: 15 Q Did Mr. not Pena (sic) tell you that the rifle was his? 16 A Yes, he did. 17 Q Did you see a receipt with Mr. Pena's name on it? 18 A I don't believe the receipt has a name on there. 19 Q A receipt prior, a May 5th receipt. 20 May 5th receipt with a name Meme on it? 21 A A May 5th receipt? 22 Q Excuse me. 23 A I did see the receipt. 24 Q Did you see the name, any written documents on the back of 25 the receipt? Did you see a No. A December 5th receipt? Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 26 of 41302 1 A I don't remember what was written on the back of the 2 receipt. 3 Q You don't remember? 4 A No, I don't. 5 Q If the receipt had -- a government's exhibit had the name 6 Meme on it, would that be important to you if you saw it? 7 A Yes. 8 Q Okay. 9 What would that tell you, if anything? THE COURT: All right. Speculation. 10 You don't have to answer that question. 11 Requires him to interpret something, Mr. Gamez. 12 BY MR. GAMEZ: 13 Q 14 Meme on it? 15 A 16 I don't remember what it said. 17 Q 18 evidence means in your investigation? Yes. So you've heard that there was a receipt with the name I know that there was some handwritten notes on the receipt. And when you find evidence, do you try to surmise what that 19 MS. BETANCOURT: 20 THE COURT: Objection. You don't have to answer that question. 21 BY MR. GAMEZ: 22 Q 23 find it like in this case? 24 the receipt said Meme on it? 25 What do you do with evidence when you get it, sir, and you MS. BETANCOURT: What did you do when you found that Objection, Your Honor. That's -- again Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 27 of 41303 1 calls for him to speculate. 2 remember what was on the back of the receipt. 3 4 THE COURT: Mr. Gamez, has he testified that he remembers what the receipt said? 5 MR. GAMEZ: 6 was, Judge. 7 information. 8 9 He's already answered that he can't I believe he said that he heard that there But I'm asking him what did he do with that THE COURT: I understand that that's the question. The objection is overruled. 10 BY MR. GAMEZ: 11 Q 12 there was a receipt that says Meme on it? 13 A I don't know who Meme was. 14 Q Did not Manuel Perez tell you, sir, that the rifles were at 15 Sergio's house? 16 A Then I'm -- you said Perez? 17 Q Manuel Pena. 18 A Okay. 19 Q Didn't he tell you that the rifles were at Sergio's house? 20 A Yes, he did. 21 Q Didn't he tell you: 22 you the rifles? 23 A Yes, he did. 24 Q He didn't know, would it be fair to say, that you already 25 had the rifles? What did you do when you heard of that information, that You can call Sergio, and he'll bring Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 28 of 41304 1 A He didn't know obviously. 2 Q But his -- what did you -- what did you determine when he 3 told you: 4 them. 5 determine from that? 6 A 7 possession. 8 Q You can get the rifles at Sergio's house. You can get them at Sergio's house. I bought What did you Well, I knew it wasn't true because we had the rifles in our But he didn't know that you had them, did he? 9 THE COURT: Excuse me. That requires him to speculate. 10 It requires him to go into the mind of your client as to 11 whether -- what he knew at this point in time. 12 So you don't have to answer that question. 13 BY MR. GAMEZ: 14 Q 15 in the ranch? 16 A Yes, he did. 17 Q Did he say that this was -- did he tell you about how the 18 ranch was run -- excuse me, the lease was run? 19 A No, he didn't. 20 Q Okay. 21 that you can remember? 22 A He didn't specifically say anything about the ranch. 23 Q Well, did he -- did he mention about the expenses on the 24 trailer? 25 A Did he tell you that the rifles were for the use of everyone What did he tell you about the ranch, if anything, No, he didn't. Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 29 of 41305 1 Q Did he mention to you about expenses of feeders? 2 A No, he didn't. 3 Q Did he mention -- you said community, is the term you used, 4 a community rifle. 5 A 6 people. 7 Q 8 you -- what did -- what did you believe that meant? 9 A What did you understand from that? I understood that it was going to be used by more than one But why, sir? Why did you -- when you heard that, why did Well, typically rifles aren't -- are sighted for one person. 10 And for more than one person to be able to use the rifle, it 11 would have to be sighted each time. 12 I took it that more than one people used the rifle, but 13 that's not typically what hunters do. 14 Q 15 what you're saying? 16 A As far as zeroing a rifle, yes. 17 Q Someone, you agree, has to sight a rifle? 18 A Yes. 19 Q Okay. 20 rifles? 21 A He said that he fired them twice and sighted them. 22 Q Yes. 23 lease sighted the rifles. 24 A That's not what he said. 25 Q Okay. Okay. So you know now what typically hunters do. Is that And did he tell you that we all went to sight the All the rifles. They all sighted -- they all on the Would you not agree? That's what you're saying; am I correct? That's your Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 30 of 41306 1 testimony? 2 3 MS. BETANCOURT: Objection, Your Honor. That's argumentative. 4 THE COURT: No, I'll allow it. 5 BY MR. GAMEZ: 6 Q That is your testimony; am I correct? 7 A Yes. 8 Q Okay. 9 believe that rifle or those rifles were sighted in Austin? Now, did he not tell you: I'm not sure, but I Did 10 he not tell you that? 11 A No, he didn't. 12 Q Could you have gone to the witnesses to ask if that was true 13 or not true? 14 A I could have. 15 Q But you chose not to? 16 A Correct. 17 Q Is it your testimony that Mr. Pena did not tell you about 18 the expenses about the trailer? 19 A No. 20 Q The blinds? 21 A No. 22 Q The feeders? 23 A No, he didn't. 24 Q The lease fee? 25 A No. Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 31 of 41307 1 Q The ammunition? 2 A No. 3 Q The corn? 4 A No. 5 Q And the rifle? 6 A He did mention -- we did talk about the rifle. 7 Q Okay. 8 rifles? 9 A What's your question? 10 Q Okay. 11 Gonzalez sleeps in a trailer? 12 A We didn't talk about that. 13 Q At the ranch, the lease. 14 A No, we didn't talk about that. 15 Q Okay. 16 portion of the trailer, but he doesn't have possession of that 17 trailer? 18 A That was never brought up. 19 Q Did he mention to you that even though the person has a 20 trailer, that other person may not be -- is not the owner of the 21 trailer, but he has a trailer; that it belongs to everyone to 22 use for the ranch. 23 A No, he did not. 24 Q Were you told that everyone shares in expenses of the 25 blinds? Did you -- did you ask him, well, why just the Or did you want to know why just the rifles? I don't -- Well, did you learn from Manuel Pena that Mr. Sergio Did -- was it mentioned to you that he has to pay a Did he tell you that? Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 32 of 41308 1 A No. 2 Q Did he tell you that everybody gets to use the blinds? 3 A No. 4 Q Did he tell you that there was a shortage of firearms and 5 that was part of the contribution, whether it be Sergio or 6 someone else would pay for it, but the rifles were bought by 7 Manuel? 8 A No. 9 Q Do you understand this question, sir? Did he tell you that? That the person who 10 buys the firearm is the owner of the firearm? 11 that? 12 A 13 Do you understand Yes. THE COURT: All right. Excuse me. Just a second. Do 14 you understand the question that the owner -- that the purchaser 15 is the owner? 16 MR. GAMEZ: Yes, of the firearm, that's correct. 17 THE COURT: All right. 18 question. 19 BY MR. GAMEZ: 20 Q 21 that firearm? 22 23 24 25 You don't have to answer that You understand that a person can -- if the person can share You understand that? MS. BETANCOURT: Objection, Your Honor. eliciting any facts. THE COURT: BY MR. GAMEZ: Sustained. Question is not Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 33 of 41309 1 Q In this case did you find out that this was a community 2 rifle? 3 A No, I did not. 4 Q Sir, you said you worked for Immigration and Customs? 5 A Yes. 6 Q Okay. 7 been accused of a crime or a felony, sir, that are resident 8 aliens? 9 A Yes. 10 Q And do you know what constitutes grounds for deportation 11 under Immigration standards for resident aliens? 12 A Basic, yes. 13 Q In fact, you were trained on what is legal and not legal for 14 resident aliens, what they can do, what they can't do, cannot 15 do. 16 A I know some things they can and cannot do. 17 Q I know. 18 that are grounds for deportation? Do you work many times investigating people that have Would that be fair to say? Not everything. Well, what are some of the things they can't do 19 MS. BETANCOURT: Objection, Your Honor, relevance. 20 MR. GAMEZ: I'm heading there, Judge. 21 THE COURT: Okay. If you're going to be asking him 22 questions about grounds for deportation, are you also going to 23 go into what are grounds for an appeal of a deportation and the 24 kind of evidence that's necessary even if a person has been 25 convicted of a felony where deportation may be stayed? Is that Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 34 of 41310 1 the line of questioning you're going to pursue with this 2 witness? 3 MR. GAMEZ: If it please the Court. 4 THE COURT: All right then. I just -- I'm going to ask 5 you to establish that he is an expert who could testify not only 6 about what might be commonly known as grounds for deportation, 7 but what grounds there might be for a stay of a deportation even 8 following a felony conviction. 9 an expert enough to testify about not only part of the process 10 or the grounds, but the complete process, even an appeal, then 11 you can ask him those questions. 12 MR. GAMEZ: If you can establish that he is Judge, my line of question, respectfully, 13 was to ask him what he does generally and what he's experienced 14 in. 15 appeals, but he certainly would be experienced in what 16 legitimizes an arrest of a resident alien violating the law. 17 And I don't believe he would be experienced in matters of THE COURT: All right. You're conflating. You're 18 talking about arresting of alien versus deportation of an alien, 19 and I don't want to have incomplete information provided by this 20 witness that would mislead the jury. 21 MR. GAMEZ: 22 BY MR. GAMEZ: 23 Q 24 25 Oh, absolutely, Judge, yes. Sir, have you arrested illegal aliens in your profession? MS. BETANCOURT: Objection, Your Honor, relevance. There's -- he hasn't tied any type of relevance as to whether Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 35 of 41311 1 he's an arresting -- this is a straw purchase case, Your Honor. 2 THE COURT: I'm going to allow the question, but not any 3 further if you cannot establish the relevance of an arrest 4 versus the facts of this case. 5 BY MR. GAMEZ: 6 Q In this case, was Sergio Gonzalez subject to an arrest? 7 A Yes. 8 Q Okay. 9 A Because he was the party of a straw purchase. 10 Q And if he is subject to an arrest, what type of arrest would 11 it be, a misdemeanor or a felony? 12 A I'm not sure. 13 Q Mr. Pena, is he arrested for a straw purchase violation 14 allegation? 15 A Yes. 16 Q Okay. 17 arrest? 18 A Yes, yes. 19 Q Then may I ask you, why didn't you say you weren't sure? 20 Why was he subject, in your opinion, to an arrest? Yes, it is a felony. So it is -- would Sergio also be subject to the same THE COURT: Don't argue with the witness. 21 BY MR. GAMEZ: 22 Q 23 have been arrested for the same thing? 24 A Yes. 25 Q What -- in your opinion, would that be grounds for Okay. So Sergio and Manuel Pena, in your opinion, could Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 36 of 41312 1 deportation? 2 MS. BETANCOURT: Objection, Your Honor. There's not 3 been any establishment that this defendant -- I'm sorry, this 4 witness has any expertise in the application of Immigration law. 5 6 THE COURT: earlier. Mr. Gamez, we go back to what I said If you can establish -- 7 MR. GAMEZ: I'll withdraw the question, Judge. 8 THE COURT: Thank you. 9 BY MR. GAMEZ: 10 Q Okay. 11 immigration occurred after a felony arrest or a felony 12 convictions? 13 In your experience, have other proceedings with MS. BETANCOURT: Objection, Your Honor. Again, he's 14 asking this defendant to apply Immigration law without any 15 relevance as to -- or any testimony as to his expertise in the 16 area. 17 THE COURT: Excuse me. You've asked whether a person 18 can be deported because of an arrest and whether he can be 19 deported as a result of a conviction. 20 question of a witness that requires answers for two different 21 grounds. So you cannot ask this 22 MR. GAMEZ: So I'll ask one at a time then, Judge. 23 THE COURT: Do what you have to do. 24 BY MR. GAMEZ: 25 Q Okay. Do you have any knowledge if -- an arrest of this Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 37 of 41313 1 type under immigration, is that person at least subject to 2 deportation, if you know from your experience of other arrests? 3 MS. BETANCOURT: Objection, Your Honor. The question 4 would cause him to have to apply Immigration law. 5 the jury has not heard any evidence that he has any experience 6 or knowledge. 7 THE COURT: 8 has. 9 BY MR. GAMEZ: At this point Why don't you ask him what experience he 10 Q What experience do you have, sir, with resident aliens that 11 are subject to felony arrests? 12 A 13 border crossers. 14 Q 15 has occurred of those people, those individuals, sir? 16 mean to be argumentative with you. 17 resident aliens from your experience, from your limited 18 experience, what has happened to them after the arrest? Limited. Okay. 19 Most of the people that have -- I've arrested were Well, the limited experience that you do have, what MS. BETANCOURT: Of those people that are Objection, Your Honor. The witness has 20 testified his knowledge applies to border crossers. 21 the question that was asked. 22 BY MR. GAMEZ: 23 Q That's not To border crossers. 24 25 I don't THE COURT: ahead. Well, for border crossers, and then go Answer the question. Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 38 of 41314 1 THE WITNESS: Repeat your question. 2 BY MR. GAMEZ: 3 Q 4 crossers that commit a felony that you've dealt with in your 5 limited experience? 6 office, that you know of? 7 A 8 their time, we have no dealings with them. 9 usually take over from there, and that's their expertise. What has been your experience what happens to border What happens to them with Immigration, your What happens to them? That I know of, once a person is arrested and they serve Deportation officers 10 Q 11 someone says: 12 Gonzalez, if you cooperate with us? 13 A If they did, it was in Spanish. 14 Q Right. 15 A I was in the room when he was questioned, yes. 16 Q Yes. 17 terminology to you, the sentence: 18 interests, Sergio Gonzalez, to cooperate with us? 19 A No. 20 Q Do you think that would -- you did not hear that? 21 Now, in this case, did someone tell -- were you present when It would be in your best interests, Mr. Sergio Well, did someone interpret the Spanish term, THE COURT: It would be in your best He's already answered the question. 22 BY MR. GAMEZ: 23 Q Were you in the room, sir? 24 A Yes, I was. 25 Q How large is that room? Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 39 of 41315 1 A It's a small conference room. 2 Q What's that? 3 A It's a small conference room. 4 Q Ten by ten? 5 A Ten by 15 I -- I'm guessing. 6 Q I believe you were shown pictures, photographs of weapons 7 that was purchased by Sergio Gonzalez, were you not? 8 A Yes. 9 Q Did you physically see them? 10 A Yes, I did. 11 Q Did you ask any questions of Sergio Gonzalez about these 12 weapons? 13 A Questions were asked, but not by me. 14 Q Who asked the questions? 15 A I believe the majority of the questions were asked by TFO 16 Albert Torriz. 17 Q Were you listening to those questions? 18 A I was, but it was in Spanish. 19 Q How far were you from Sergio -- excuse me, Mr. Torriz? 20 A Across the table. 21 Q How large was the table? 22 A Approximate size of the table behind you. 23 Q Okay. 24 approximately the size behind me? 25 A If -- where were you sitting on the table It would be across from the AUSA. Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 40 of 41316 1 Q Okay. So where Shaun Owens was sitting, would that be where 2 Albert Torriz was? 3 A I don't remember where Albert was sitting. 4 Q Okay. 5 A Yes. 6 Q Okay. 7 A Yes. 8 Q Okay. 9 long -- I mean in width? But was he on one side of the table? And you were sitting on the other side? Now, would you say that table is three, 4 feet 10 A I would guess. 11 Q So you were actually four feet from Torriz asking you -- 12 excuse me, asking questions to Sergio Gonzalez? 13 A Yes, but the interview was in Spanish. 14 Q What's that? 15 A The interview was in Spanish. 16 Q I understand. 17 away from you Albert Torriz asking him or telling Mr. Gonzalez: 18 It's in your best interest to cooperate from us. 19 testimony still that four feet away you did not hear that? 20 And I asked you if you heard, sir, four feet THE COURT: And is it your He's already asked -- he's already answered 21 that question. 22 BY MR. GAMEZ: 23 Q Sir, did you make any deals with Mr. Gonzalez? 24 A No, I did not. 25 Q No deals at all? Case 1:12-cr-00472 Document 103-1 Filed in TXSD on 01/22/13 Page 41 of 41317 1 A No. 2 Q Did you hear of any deals made with Mr. Gonzalez? 3 A No. 4 Q Were you one of the agents involved in this case? 5 A Yes. 6 Q Why wasn't Mr. Gonzalez arrested? 7 A Because he agreed to cooperate. 8 Q How? 9 A By further assisting in the investigation with FBI and OPR. 10 Q On this case? 11 A Yes. 12 Q And other cases? 13 A Yes. 14 Q In fact, he is now an informant for you, isn't he? 15 A He is -- 16 17 18 THE COURT: Excuse me. Just a second. I'm going to recess the jury momentarily. Members of the jury, you are under my admonishment for this 19 recess that you are not to form or express any opinion about the 20 facts of this case and cannot do so until it has been submitted 21 to you for your deliberation. 22 23 24 25 Thank you. (Jury leaves courtroom) THE COURT: Thank you. Please be seated. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 1 of 41 318 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 MS. BETANCOURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 XXXXXXXXXXXXXXXXXXXXXXXXXX 11 THE COURT: 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 21 22 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 2 of 41 319 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 MR. GAMEZ: 3 XXXXXXXXXXXXXXXXXX 4 THE COURT: 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX 6 MS. BETANCOURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXX 14 THE COURT: XXXXXX 15 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 25 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 3 of 41 320 1 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXX MS. BETANCOURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXX 9 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXX 10 MS. BETANCOURT: 11 MR. GAMEZ: XXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 4 of 41 321 1 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXX 4 MS. BETANCOURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXX 8 9 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXX 22 23 24 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 5 of 41 322 1 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 THE COURT: XXXXX 8 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXX 9 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXX 14 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXX 15 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXX 22 XXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 6 of 41 323 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 MR. GAMEZ: XXXXXXXXXXXXXXXXXXX 10 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 19 20 21 22 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX COURT CLERK: XXXXXXXXXXXXXXXX (Jury enters courtroom) THE COURT: Thank you. Please the seated. Members of the jury, I'm ordering stricken from the record the last two questions and answers posed to this witness. 24 You may proceed. 25 Oh, I'm sorry. The witness is still in the -- not in the Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 7 of 41 324 1 courtroom. 2 MS. BETANCOURT: Agent Deans. 3 THE COURT: You may proceed. 4 MR. GAMEZ: Yes, Judge, Your Honor. 5 BY MR. GAMEZ: 6 Q Now, Mr. Dean -- 7 A Yes. 8 Q -- we're only going to talk -- the next two or three 9 questions are questions only dealing with this case and this 10 case only, and I'm requesting respectfully that your answers 11 only deal with this case and this case only. 12 Was there a deal of non-prosecution made that you're aware 13 of for his cooperation in this case? 14 A 15 agreed to pursue it further, but there weren't any specific 16 deals made that I'm aware of. 17 Q 18 further? 19 A 20 use -- use his assistance to pursue the case further. 21 Q 22 little room out in front of the courtroom, have you not? 23 A No, Mr. Owens is sitting behind you. 24 Q No. 25 me. I believe Shaun Owen spoke to the AUSA about the case and What do you mean: I believe Shaun Owens was to pursue this That since Mr. Gonzalez agreed to assist, that we would Okay. You've been sitting with Mr. Shaun Owens in the I'm talking about you and Mr. Owens have sat -- excuse You have sat in the back -- in the front of the courthouse Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 8 of 41 325 1 in another room while Mr. Owens has been in this courtroom? 2 A Yes. 3 Q Okay. 4 in this case only as far as non-prosecution? 5 6 So have you since learned that there has been a deal THE COURT: Since learned since -- what date are you talking about? 7 MR. GAMEZ: From the date of being here, Judge. 8 THE COURT: I'm sorry? 9 MR. GAMEZ: Since the date of the inception of this 10 trial. 11 THE WITNESS: Since yesterday? 12 BY MR. GAMEZ: 13 Q Since Monday. 14 A No. 15 Q Okay. 16 been prosecuted in this case? 17 A That I'm aware of, no. 18 Q Okay. 19 this case and this case only. 20 Mr. Gonzalez for him not to lose his resident alien card as a 21 result of this case and cooperation in this case? 22 A No. 23 Q That you're sure of? 24 A Yes. 25 Q How are you sure of that? Would it be fair to say that Sergio Gonzalez has not As deals with prosecution, sir. Now I'll ask you in Was there a deal made with Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 9 of 41 326 1 THE COURT: Don't argue with the witness. 2 he's not sure. 3 BY MR. GAMEZ: 4 Q 5 alien card, sir, when being accused of a felony? Okay. 6 He's answered Well, may I ask why he wasn't lose (sic) his resident THE COURT: Excuse me. Mr. Gamez, you're 7 misrepresenting the evidence. 8 his resident alien status as a result of -- excuse me, what is 9 your word? Excuse me. You're saying that he could lose I'm -- 10 MR. GAMEZ: Resident alien. 11 THE COURT: No, that's not the word I'm looking for. 12 Being accused of a felony can result in losing resident alien 13 status. 14 That's misleading. You do not have to answer that question. 15 BY MR. GAMEZ: 16 Q 17 agree with me if you're accused, arrested and convicted, you can 18 be -- you can lose your resident alien card? I do -- sir, I do not mean to be misleading. 19 THE COURT: 20 MS. BETANCOURT: 21 THE COURT: But would you All right. Objection. You don't have to answer that question. The 22 question is can you be deported as a result of an accusation? 23 Can you be deported as a result of a charge being filed against 24 you, and can you be deported as a result of a conviction? 25 I -- I again ask you, if you're going to pursue the question of And Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 10 of 41327 1 a conviction, then you have to let him explain to the jury that 2 he has knowledge, and he's already said that he's not sure. 3 But if you can establish at this point what you're trying to 4 elicit from him specifically as to his personal knowledge, I 5 will allow you to pursue it so you can establish it. 6 BY MR. GAMEZ: 7 Q 8 don't know of any penalties immigration-wise for Sergio 9 Gonzalez? All right. So to the best of your knowledge and belief, you 10 A No, I don't. 11 Q Okay. 12 received compensation that you know of in this case? 13 A Has Sergio Gonzalez He has -- 14 15 And what about compensation? MS. BETANCOURT: Objection, Your Honor. If we could approach the witness -- Your Honor -- 16 THE COURT: Okay. Would you be testifying about 17 compensation as a result of his -- about the events that led up 18 to this indictment? 19 THE WITNESS: 20 THE COURT: 21 He has not, Your Honor. Okay. Yes, I would. Well, that's what the question is about. 22 THE WITNESS: 23 THE COURT: Okay. If you know what financial benefit he has 24 received as a result of his participation, to whatever extent in 25 connection with the events that led up to this indictment. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 11 of 41328 1 THE WITNESS: Yes, I know. I do know. 2 BY MR. GAMEZ: 3 Q And what is it that you know? 4 A He has not received any -- any compensation for this case. 5 Q He has not? 6 A Has not. 7 MR. GAMEZ: Pass the witness, Judge. 8 THE COURT: All right. 9 MS. BETANCOURT: 10 11 THE COURT: No further questions, Your Honor. All right, sir. You may step down. Call your next witness. 12 13 Ms. Betancourt? MR. PONCE: Gonzalez. Your Honor, our next witness is Sergio He will need an interpreter. 14 THE COURT: I'm sorry? 15 MR. PONCE: He will need an interpreter. 16 THE COURT: All right. 17 Good morning, sir. Have a seat in the witness chair to my 18 right. 19 for your testimony, please speak into the microphone so that 20 your voice is amplified. 21 You may proceed. 22 And, sir, although an interpreter is going to be used SERGIO GONZALEZ, 23 the witness, having been previously duly cautioned and sworn to 24 tell the truth, the whole truth and nothing but the truth, 25 testified through an interpreter as follows: Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 12 of 41329 1 DIRECT EXAMINATION 2 BY MR. PONCE: 3 Q Sir, would you state your full name to the Court. 4 A Sergio Gonzalez Mandujano. 5 Q And how old are you, sir? 6 A 44. 7 Q Do you have a nickname, sir? 8 A No. 9 Q Cuñado means in English brother-in-law? 10 A Yes. 11 Q Do you also sometimes refer to other individuals by that -- 12 by that word, calling them cuñado even though they're not really 13 your cuñado? 14 A Yes. 15 Q I'm going to ask you to -- a few questions. 16 understand my question or I don't ask it loud enough, would you 17 please let me know so that I can speak louder or so I can repeat 18 myself? 19 A Okay. 20 Q And I'm going to ask you to -- well, let me ask you this. 21 Do you know a little bit of English, some English? 22 A A little. 23 Q And -- but you're more comfortable with Spanish; is that 24 correct? 25 A Cuñado. Yes. Preferably, yes. It would be better. If you don't Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 13 of 41330 1 Q I'm going to be asking you the questions. 2 allow the interpreter an opportunity to ask those questions in 3 Spanish to you so that you can then respond in Spanish and she 4 can translate? 5 A Yes. 6 Q And I'll ask you to, when you speak, to certainly speak into 7 the microphone and not turn away from it when you're speaking. 8 A Yes. 9 Q And you said you're how old, sir? 10 A 44. 11 Q Were you born in Tamaulipas, Mexico? 12 A Yes. 13 Q Would you wait for the interpreter to interpret the 14 question? 15 A Okay. 16 17 Would you please THE COURT: And you have to speak loud enough to where your voice is -- your answer is amplified in the microphone. 18 THE WITNESS: Okay. 19 BY MR. PONCE: 20 Q You're nervous? 21 A Yes. 22 Q Just relax. 23 just answer the questions. 24 A Okay. 25 Q Sir, did you go to school in Mexico? We'll ask -- we'll ask questions, and you can Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 14 of 41331 1 A Yes. 2 Q How many years of schooling do you have? 3 A 14, 15 years. 4 Q Did you graduate from school? 5 A Yes. 6 Q What school or universities did you graduate from? 7 A La Universidad Autonama de Tamaulipas, and Liceo 8 Profesional. 9 Q Did you -- do then -- excuse me. Do you then have a degree 10 in a certain area? 11 A Yes. 12 Q In what, sir? 13 A CPA, certified public accountant. 14 Q But in Mexico? 15 A Yes. 16 Q Did you work then after graduating as an accountant? 17 A Yes. 18 Q Where? 19 A Mexico. 20 Q Okay. 21 some point work for yourself? 22 A Both. 23 Q Okay. 24 and what did you do? 25 A Did you continue working for others, or did you at When you were working for yourself, when was that, I don't recall. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 15 of 41332 1 Q You don't recall when you started working for yourself, or 2 you don't recall what you were doing as you were self employed? 3 A I don't recall when. 4 Q What did you do when you were self employed? 5 A I had businesses. 6 Q You were the accountant for those businesses or what? 7 A As well. 8 Q Let me ask you, did you ever work for -- for -- as a 9 representative in the governor's office? 10 A Yes. 11 Q As what, sir? 12 A Working for him in that program, mano a mano, hand to hand, 13 during the time when Manuel Cavazos Lerma was there. 14 Q So you were supervisor of works, projects that they had? 15 A Yes. 16 Q Was this in the early 1990s? 17 A '80s, '90s. 18 Q Okay. 19 A I was always coming here. 20 Q What I'm saying is did you start living in the United 21 States, is what I'm asking. 22 A I don't recall, yes. 23 Q I'm not asking you what date. 24 some point in time start living here in the U.S.? 25 A Yes. At some point in time, did you come over to the U.S.? I'm sorry. Yes, yes. I'm asking you did you at Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 16 of 41333 1 Q And was that in the early 1990s? 2 A Yes. 3 Q At some point did you work at the Gateway Bridge? 4 A Yes. 5 Q That's the international bridge between Mexico and the U.S. 6 here in Brownsville, Texas? 7 A Yes. 8 Q What did you do? 9 A Collector. 10 Q And that would mean you would collect as people would go by 11 the toll booth? 12 A Yes. 13 Q How long did you do that more or less? 14 A Three, five years. 15 Q Three to five years? 16 A Yes. 17 Q Sir, I'm going to ask you a few questions about -- about the 18 purchase of a rifle. 19 A Okay. 20 Q Now, sir, on December the 5th of last year, December 5th, 21 2011, were you at the Academy store here in Brownsville, Texas? 22 A Yes. 23 Q And who were you with at Academy on that date? 24 A I got there by myself. 25 Q And once you were there, who else met up with you there? Several rifles actually. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 17 of 41334 1 A With Manuel Pena. 2 Q What was the purpose of you-all being there at Academy on 3 December the 5th? 4 A To buy a rifle. 5 Q What kind of rifle? 6 A I don't recall the brand. 7 Q But you've seen the pictures of that rifle, correct? 8 A Yes. 9 Q In a while I'll show you those pictures, but let me first 10 It was a 270. ask you a few other questions. 11 You said that you went over there by yourself and met with 12 Manuel Pena there at Academy, correct? 13 A Yes. 14 Q Had you-all previously agreed to meet there on that day for 15 the -- for the purpose of purchasing that rifle? 16 A Yes. 17 Q That rifle was going to be for whom, sir? 18 A For a son of mine. 19 Q What is his name? 20 A Sergio Gonzalez. 21 Q Okay. 22 A Junior. 23 Q Does he go by any nickname? 24 A No. 25 Q Chiquin or Chickie? Junior? Chickie. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 18 of 41335 1 A Chiquin. 2 Q And how old is he? 3 A 20. 4 Q The 270 that you were going to purchase, who decided what 5 kind of caliber rifle he was going to get? 6 A I did. 7 Q And how much did -- do you remember how much that rifle was 8 going to cost? 9 A Not exactly. 10 Q And were you going to -- were you going to sign the 11 paperwork to buy that weapon? 12 A No. 13 Q Why were you not going to sign the paperwork to buy that 14 weapon? 15 A I couldn't sign them. 16 Q Okay. 17 couldn't sign those papers? Around 300. But tell us, why is it that you weren't allowed or 18 MR. GAMEZ: Your Honor, I'd object. 19 THE COURT: Excuse me. 20 MR. GAMEZ: Yes, my objection, Judge, is that he's not Sorry. He's not an expert. The objection first. 21 an expert in laws of purchasing firearms or filling out 4473s, 22 Judge. 23 24 25 THE COURT: He can answer if he knows. Mr. Ponce, proceed. BY MR. PONCE: Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 19 of 41336 1 Q Do you want me to repeat the question, sir? 2 A Yes. 3 Q What was your understanding as to why you couldn't buy a 4 rifle? 5 A For my -- because of my address. 6 Q Okay. 7 A My license. 8 shown what was on my license. 9 Q What kind of receipts did you need? 10 A Light, electricity. 11 Q Utility bills? 12 A Telephone. 13 Q So light, telephone. 14 to present? 15 A Whichever the two. 16 Q How is it that you already knew that you needed this kind of 17 documentation in order to purchase a rifle? 18 A 19 receipts that they asked me to present. 20 Q 21 bought that weapon that you're talking about when they had asked 22 you for those receipts? 23 A I don't recall. 24 Q Well, just help me. 25 Was it a few years? What about your address? I didn't have the same receipts that would have Yes. What other kind of bill did you need Whichever of the two would be. I had bought a rifle prior to that, and those are the About how many years prior to December the 5th had you You said a few weeks, a few months? Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 20 of 41337 1 A No, years before. Years. 2 Q Two or three years, ten years before, what? 3 A Five years. 4 Q So on December the 5th, you didn't have matching receipts or 5 bills, receipts that match your driver's license? 6 A That's correct. 7 Q So did you ask someone to make that purchase for you? 8 A Yes. 9 Q Who did you ask? 10 A Manuel. 11 Q Manuel Pena? 12 A Yes. 13 Q When -- when did you first ask him to -- to make this 14 purchase for you? 15 A I don't recall. 16 Q And a few days prior when you told him, as best as you 17 remember, what did you tell him about having him buy this weapon 18 for you? 19 A That my son wanted a rifle, and that I couldn't buy it. 20 Q When you said son, which son are you referring to? 21 A Junior. 22 Q Chiquin? 23 A Yes. 24 Q Do you have other sons? 25 A Yes. A few days prior. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 21 of 41338 1 Q How old? 2 A 15 and ten-years-old. 3 Q Okay. 4 5th, did he agree to buy that weapon for you? 5 A Yes. 6 Q Did -- you said that this weapon was going to cost more or 7 less $300. 8 A Yes. 9 Q Where did you get it? 10 A From my son. 11 Q And your son has that kind of money? 12 A Yes. 13 Q Does he work? 14 A Yes. 15 Q Does he work full time? 16 A Part time. 17 Q And he gave you that money for the purchase of the rifle? 18 A Yes. 19 Q Who did you give this money to? 20 A Manuel. 21 Q When did you give him that money? 22 A That day at the store. 23 Q What time was this when you were at the store more or less? 24 A Noon. 25 Q And when had you-all agreed that you were going to meet on And so when you told him this a few days before the Did you have the money for that? It was my son's. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 22 of 41339 1 December the 5th, as you say, about noon, to make that purchase? 2 A I don't recall exactly. 3 Q But you-all did agree to meet at Academy for the -- for the 4 purpose of purchasing the rifle? A day prior? 5 MR. GAMEZ: Objection, Judge. 6 THE COURT: Sustained. 7 BY MR. PONCE: 8 Q 9 date? Leading, Judge. Did you come to some agreement to meet at a certain time and 10 A Yes. 11 Q You said you arrived in -- alone, correct? 12 MR. GAMEZ: Leading, Judge. 13 THE COURT: Sustained. Objection. 14 BY MR. PONCE: 15 Q 16 way. 17 A By myself, alone. 18 Q What were you driving? 19 A I was. 20 Q What were you driving? 21 A My truck. 22 Q What color? 23 A White. 24 Q The -- do you know how is it that Manuel Pena arrived there? 25 When you arrived, was anyone with you? Let me ask it this How did you get to Academy? Oh. MR. GAMEZ: Objection. Asking him to speculate, Judge, Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 23 of 41340 1 how Manuel got there. 2 MR. PONCE: I'm asking if he knows. 3 THE COURT: Overruled. He can answer if he knows. 4 BY MR. PONCE: 5 Q Only if you know, sir. 6 A No. 7 Q But you-all met on December the 5th where? 8 inside the store? 9 A Inside. 10 Q Was anyone else with Manuel Pena? 11 A I don't recall. 12 Q When -- when you-all were inside the Academy store, where 13 did you-all go? 14 A To the weapons department. 15 Q The -- more or less how long did it take from the time you 16 first -- you-all first arrived at the counter to the time that 17 eventually you or he walked out with the weapon? 18 A Half an hour, an hour. 19 Q At the counter, were you with Manuel Pena the entire time 20 the purchase was made? 21 A No. 22 Q What did you do? 23 A I was looking at other articles. 24 Q In what parts of the store? 25 A Fishing, hunting. Parking lot or I don't think so. The department of fishing and hunting. Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 24 of 41341 1 Q How did Manuel Pena know of which rifle to buy? 2 THE COURT: Excuse me. The translation does not leave 3 it clear for the witness to know whether he's being asked 4 whether how he did know this witness, or how did someone else 5 know what rifle was involved. 6 MR. PONCE: Clarify it please. Yes, Your Honor. 7 BY MR. PONCE: 8 Q Who decided what kind of weapon, type of weapon to buy? 9 A I did. 10 Q How did Manuel Pena know which weapon to buy? 11 A We saw it there. 12 Q Did you tell him that that's the one, or did you point it 13 out to him or what? 14 A Yes. 15 Q Yes, what? 16 A The one that was the indicated one. 17 Q Did you indicate that to him? 18 MR. GAMEZ: Leading, Judge. 19 THE COURT: I'll allow it. 20 THE WITNESS: Yes. 21 BY MR. PONCE: 22 Q 23 the purchase of that rifle? 24 A No. 25 Q Who did the talking to the employee there at Academy? Did you in any way talk to the clerk from Academy regarding Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 25 of 41342 1 A Manuel. 2 Q Why didn't you stay with him the -- during the entire time 3 that he was making the purchase? 4 A He was busy. 5 Q Doing what? 6 A Filling the paperwork. 7 Q The paperwork to purchase the weapon? 8 A I think so. 9 Q Did he eventually buy that weapon for you? 10 A Yes. 11 Q You said that you had given him the money there at Academy. 12 Was it in cash? 13 A Cash. 14 Q Is that the money that you had gotten from your son, 15 Chiquin? Was it in check? 16 MR. GAMEZ: Objection. 17 THE COURT: Sustained. In what form? Leading, Judge. 18 BY MR. PONCE: 19 Q That money that you gave him, where did that come from? 20 A From my son. 21 Q Which son? 22 A Sergio, Junior. 23 Q The individual you call Chiquin, right? 24 A Yes. 25 Q When the -- when the purchase was made, did both of you-all Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 26 of 41343 1 walk out together? 2 A I don't recall. 3 THE COURT: All right. 4 right now. 5 before we totally recess. 6 Mr. Ponce, I'm going to stop It's five until 12:00. I have a matter to take up But, members of the jury, you will be in recess until 1:30. 7 During this recess you're still under my continuing admonishment 8 that you must not form or express any opinion about the facts of 9 this case and cannot do so until it has been submitted to you 10 11 for your deliberation. (Jury leaves courtroom) 12 13 Thank you. THE COURT: Thank you. Please be seated. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 19 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 THE COURT: XXXXXXXXXXXXXXXXXXXXXX 25 MR. PONCE: XXXXXX 23 XXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 27 of 41344 1 THE COURT: XXXX 2 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 THE COURT: XXXXXXXXXXXXXXXXXXXXXXX 4 MR. GAMEZ: XXXXXXXXXXX 5 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 XXXXXXXXXXXXX 10 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 20 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXX 21 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 24 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 28 of 41345 1 XXXX 2 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXX 3 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 5 XXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 THE COURT: XXXXXXXXX 9 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXX 10 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 29 of 41346 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 THE COURT: XXXXX 9 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 25 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 30 of 41347 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 MR. PONCE: XXXXXXXX 11 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 18 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 MR. PONCE: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 23 XXXXXXXXXXXXX 24 25 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 31 of 41348 1 2 XXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXX 7 THE COURT: XXXXXXXXXXXXXXXXXXXX 8 MR. GAMEZ: XXXXXXXX 9 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 18 19 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXX THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 22 23 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 32 of 41349 1 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 2 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 3 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 4 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 5 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 6 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 7 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 8 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 9 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 10 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 11 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 12 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 13 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 14 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 15 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 16 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 17 XXXXXXXXXXXXXXX 18 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 19 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 20 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 21 XXXXXXXXXXXX 22 THE COURT: XXXX 23 MR. GAMEZ: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 24 THE COURT: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 25 XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 33 of 41350 1 XXXXXXXXX 2 COURT CLERK: 3 MR. PONCE: 4 XXXXXXXXXXXXXXXX Your Honor, if I may just address the matter concerning the -- trying to redo the transcripts and -- 5 THE COURT: Uh-huh, okay. 6 MR. PONCE: I have the -- finally I think I've got them 7 in order that I think would make for a better presentation or a 8 smoother presentation. 9 we -- we had talked about early, what we call the pre-buy. I have Exhibit 24, which is the one I 10 have the transcript for that. 11 with the transcript, I suggest that then, at least for purposes 12 of the record, we call the transcript 24A. 13 And so that we won't confuse 24 The Exhibit 25, which is the recording of the expert -- 14 excerpts only of the gun purchase inside the Academy, I've 15 redone that CD and prepared the transcript and called it 25A 16 with each excerpt in an individual page to make it easier to 17 follow. 18 And then there's No. 29, which you don't have on the list. 19 That is three -- the three calls, three very short calls of 20 about a minute and minute-and-a-half on December 6th, 7th and 21 8th. 22 C. That will be 29. The transcripts, they will be 29A, B and 23 THE COURT: Okay. 24 MR. PONCE: I've given copies to defense counsel. 25 I wrote in the exhibit number on them because I didn't have the Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 34 of 41351 1 stickers at that point, but did designate them by the order that 2 I just mentioned to the Court. 3 4 THE COURT: this witness? 5 MR. PONCE: 6 set up at the break. 7 other witness. 8 THE COURT: 9 10 And did you intend to offer them through All right. I don't believe so, Your Honor. We need to We'll probably set up, and maybe with the I'll hear objections at that time. Then go ahead and bring in the jury and the witness. 11 (Jury enters courtroom) 12 THE COURT: 13 Thank you. Please be seated. You may continue. 14 DIRECT EXAMINATION (Continued) 15 BY MR. PONCE: 16 Q Sir, your name for the record again? 17 A Sergio Gonzalez Mandujano. 18 Q You realize that you're still under oath? 19 A Yes. 20 Q I'm going to pick up, try to pick up where we left off right 21 before the lunch hour. 22 A Okay. 23 Q I believe that we stopped at the point where -- where I 24 asked you about walking outside after the purchase of the rifle. 25 We'll pick it up at that point, okay? Is that okay? Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 35 of 41352 1 A Okay. 2 Q Now, where did you go once you walked outside? 3 A To my truck. 4 Q And when you got there, was -- was Manuel Pena already 5 there? 6 A No. 7 Q Did you have to wait a long time for him to show up? 8 A No. 9 Q When he arrived, what, if anything, did he have with him? 10 A I'm confused. 11 Q We're talking about December the 5th, the first purchase 12 when you are already out. 13 A He had the rifle. 14 Q Was that -- was that rifle in any kind of a container? 15 A It's the box. 16 Q I'm going to show you -- I'm going to ask you if -- just 17 hold it up so you can see it. 18 a box like this look familiar to you? 19 A Yes. 20 Q What does this box look like? 21 A The one belonging to the rifle. 22 Q What did Manuel Pena do with that rifle in that box, if 23 anything? 24 A He put it in my truck. 25 Q Did -- if you remember, did he give you anything back? When he went in, or when he came out? This is -- this is No. 16. Does Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 36 of 41353 1 A No, I don't recall. 2 Q Let me ask you, that -- you said that the first -- that 3 rifle was purchased for about $300; is that correct? 4 A Yes. 5 Q How much money did you give him in order for him to buy this 6 rifle for you? 7 A I don't recall exactly. 8 Q I don't -- if you don't recall exactly, that's fine. 9 don't want you to guess. 10 Let me ask you this. 400? I Did he give you any change back once 11 he -- after he put the box in the bed of your truck? 12 A Yes, the change. 13 Q Do you remember how much it was in change? 14 A No. 15 Q Did you get the receipt from him for the purchase of that 16 rifle? 17 A I don't recall if he gave it to me or it was in the box. 18 Q But somehow or other, you did obtain it? 19 A Yes. 20 Q I'm going to ask you to look at your screen. 21 if you can see this, but does Exhibit No. -- 22 THE COURT: 23 BY MR. PONCE: 24 Q 25 Stella, I have a blank screen. I don't know Thank you. I have a screen that's upside down. Can you see this image on your screen right side up? Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 37 of 41354 1 A It's correct. I can see the receipt and the numbers. 2 Q You see that this is Exhibit No. 12? 3 A Yes. 4 Q Do you see this -- this receipt? 5 just a bit. 6 is? 7 A Yes. 8 Q This is what, sir? 9 A It's a receipt for the rifle. 10 Q And do you see the date indicated here? 11 A Yes. 12 Q Is this the receipt that was given to you by Manuel Pena? 13 A Yes. 14 Q Once you had been given your change and got the receipt, 15 what did you do next? 16 A I went home. 17 Q And you took the rifle with you? 18 A Yes. 19 Q What did you do once you got home? 20 A I got it out. 21 Q Did you -- did you at some point in time get the rifle out 22 of its box? 23 A Yes, at home. 24 Q What, if anything, did you do? 25 A I showed it to my son, and then I put it away. Well, let me get back up Do you see this receipt, and do you know what it Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 38 of 41355 1 Q Okay. Which son? 2 A Sergio, Junior. 3 Q Chiquin? 4 A Yes. 5 Q I'm going to show you some photos, and you've seen these 6 before. 7 Do you see that? 8 A Yes. 9 Q And who appears in this photo? 10 A My son and I. 11 Q What do you have in your hands? 12 A The rifle. 13 Q The one that you had gotten from Sergio Pena -- excuse me, 14 Manuel Pena? 15 A Yes. 16 Q I'm going to show you No. 6, Government Exhibit No. 6. 17 that also a photo of you and your son there at the balcony? 18 A Yes. 19 Q What are you doing with the rifle at that point? 20 A Looking at the scope. 21 Q But you weren't shooting? 22 A No. 23 Q Now that you had taken out that rifle, was that, in fact, a 24 Remington 770? 25 A I'm going to show you No. 5, Government Exhibit No. 5. It was a Remington 270. Is Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 39 of 41356 1 Q 270 caliber? 2 A Yes. 3 Q But do you know the model number? 4 A I don't recall. 5 Q I'm going to show you Exhibit No. 12 again. 6 A Yes. 7 Q Do you see the make and the model and then the caliber? 8 A Yes. 9 Q So that was a Remington? 10 A Yes. 11 Q 770 model with a 2.70 caliber? 12 A Yes. 13 Q Down here right underneath that is the serial number, 14 correct? 15 A Yes. 16 Q When -- how long were you out there on the balcony doing 17 this? 18 A Five minutes. 19 Q And after that, what did you do? 20 A I put it away. 21 Q And did you save the receipt too? 22 A I don't recall where the receipt was at that time. 23 Q Do you recall later giving it to the agents? 24 A Yes. 25 Q The next time that you had anything to do with this rifle See that? Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 40 of 41357 1 was when, sir? 2 A (No response.) 3 Q Let me ask you this. 4 A When the agents arrived. 5 Q Was that that same day or the next day? 6 A Next day. 7 Q Okay. 8 A I think so. 9 Q More or less at what time did the agents arrive there at No, go ahead and answer it. So that would have been December the 6th? 10 your apartment? 11 A 5:00, 6:00 in the afternoon. 12 Q Okay. 13 A Yes. 14 Q And did they ask you specifically about the rifle that had 15 been purchased the day before? 16 A Yes. 17 Q Did you show them that rifle? 18 A Yes. 19 Q Did you turn over that rifle to them? 20 A Yes. 21 Q And the box also? 22 A Yes. 23 Q The receipt? 24 A Yes. 25 Q Okay. And did they tell you why they were there? I think it was in the box. And let me ask you this. Did -- did you have any Case 1:12-cr-00472 Document 103-2 Filed in TXSD on 01/22/13 Page 41 of 41358 1 other rifles in the house? 2 A Yes. 3 Q What -- what kind of rifles were they? 4 A Hunting. 5 Q What make or model? 6 A JCP, caliber 30-06, and a .22 Mosler. 7 Q Mossberg? 8 A I don't recall the make. 9 Q I'm going to show you -- well, let me ask you. Did you turn 10 those weapons also over to the -- well, over to the agents also? 11 A Yes. 12 Q I'm going to show you then Government Exhibit No. -- No. 10. 13 Do you see that? 14 A Yes. 15 Q And No. 11. 16 A Yes. 17 Q What are these? 18 A The 11, No. 11 is the 30-06 JCP. 19 Q Exhibit No. 10? 20 A Yes. 21 Q So these are the other two rifles you had in your house? 22 A That's correct. 23 Q How long had you had those other rifles? 24 A Three, five years. 25 Q Did -- did the agents ask you about how you -- how you Do you see that? That's the number 22. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 1 of 41 359 1 happened to acquire the Remington rifle from the day before? 2 A Yes. 3 Q Do you remember which agents were there at your apartment to 4 talk to you about that? 5 A Some of them. 6 Q Did you talk to them? 7 A Yes. 8 Q Did you agree to go with them to the -- to the FBI office to 9 continue the interview? 10 A Yes. 11 Q Did you continue talking to them? 12 A Yes. 13 Q Did they continue asking you questions? 14 A Yes. 15 Q Did they ask you to cooperate with them? 16 A Yes. 17 Q Did you cooperate or try to cooperate with them? 18 A Yes. 19 Q Did you tell them how is it that -- or who is it that had 20 bought the Remington for you? 21 A Yes. 22 Q Did -- did they ask you to -- to cooperate to see if perhaps 23 another weapon could be purchased? 24 A Yes. 25 Q Now, the -- the person that you've talked to us about, this Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 2 of 41 360 1 Manuel Pena, how do you know Manuel Pena? 2 A I've known -- we've known each other for a few years. 3 Q Okay. 4 members of his? 5 A Yes, all of them. 6 Q Did you, over the next few days, week or so, two weeks, 7 continue to cooperate with the FBI agents? And you know his -- his brothers also, some family 8 MR. GAMEZ: I'm going to object to leading, Judge. 9 THE COURT: I'll allow it. 10 THE WITNESS: Yes. 11 BY MR. PONCE: 12 Q 13 talk to Manuel Pena? 14 A Yes. 15 Q And this was for what purpose, sir? 16 A With the purchase -- for the purchase of another rifle. 17 Q Who was going to buy that rifle? 18 A He was. 19 Q Did you tell him why you wanted him to purchase another 20 rifle for you when you had just bought one; when he had just 21 bought one for you? 22 A Yes. 23 Q What did you tell him? 24 A That I wanted a rifle for my other son. 25 Q And for this second rifle, what kind of rifle was that going During that time, did you, under the direction of the FBI, Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 3 of 41 361 1 to be? 2 A The same one. 3 Q Why? 4 A So that one wouldn't be different from the other. 5 children, for the sons, the same for one as for the other. 6 Q 7 be the same as the first one? 8 A I think so. 9 Q And did he agree to buy this second rifle for you? 10 A Yes. 11 Q Did you-all -- at some point did you-all agree when that 12 purchase was going to take place? 13 A Yes. 14 Q So let me ask you about then December the 19th of 2011, 15 okay? 16 A We went to the Academy to buy that rifle. 17 Q Did you-all go together? 18 A No, we didn't. 19 Q And more or less what time were you there in the area of 20 Academy? 21 A 10:00, 11:00. 22 Q In the morning? 23 A Yes. 24 Q Did you drive directly to Academy? 25 A Yes. For the Did you tell him that, that you wanted that second rifle to What -- what happened on that day? We arrived separately. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 4 of 41 362 1 Q Where were you before driving directly -- before driving 2 directly to Academy? Let me ask you this or ask it in this way. 3 On this second purchase of December the 19th, were the -- 4 were the agents around, the FBI agents and ICE agents around? 5 A Yes. 6 Q Did you-all meet somewhere before you went over to 7 Academy's? 8 A Yes. 9 10 THE COURT: Sir, you have to speak loud enough to where your voice is amplified? 11 THE WITNESS: Okay. 12 BY MR. PONCE: 13 Q 14 Academy? 15 A Yes. 16 Q Where? 17 A I don't recall the name of the store. 18 Q Where was it in relation to the Academy store? 19 A Carl's? 20 Q Kohl's? 21 A Kohl's? 22 Q Is that very close to -- Kohl's is a store; am I correct? Did you meet some place with the agents prior to going to I don't recall the name. Yes. 23 THE COURT: 24 THE WITNESS: 25 BY MR. PONCE: You have to answer yes or no. Yes. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 5 of 41 363 1 Q How far is Kohl's or how close is Kohl's from Academy? 2 A Less than a quarter of a mile. 3 Q It's not hours away, in other words? 4 A Sorry? 5 Q So it's not so far away that it's hours away, right? 6 A No. 7 Q And what happened when you were at Kohl's with the agents? 8 A They gave me the money. 9 Q That money was for what? 10 A For the rifle, purchase the rifle. 11 Q What were you going to do with that money? 12 A That rifle was going to be purchased with that money. 13 Q Did you give this money to anybody? 14 A Yes, to Manuel. 15 Q How much money were you -- were you handed over? 16 A 400. 17 Q Do you remember the denominations? 18 A Yes. 19 Q What was it? 20 A Four $100 bills. 21 Q Like these that we see here on Exhibit No. 17? 22 excuse me, No. -- yeah, No. 17? 23 A Yes. 24 Q When you say that you were at Kohl's with the agents, were 25 you actually inside the Kohl's or out in the parking lot area? I didn't understand. I mean, Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 6 of 41 364 1 A I don't understand the question. 2 Q Before you went over to Academy when you were at Kohl's with 3 the agents, were you at Kohl's with the agents inside the store 4 or out in the parking lot? 5 A In the parking lot. 6 Q After you were given the money, were you also given anything 7 to try to record your conversation? 8 A Yes. 9 Q By the way, did -- did you receive any calls from Manuel 10 Pena while you were at Kohl's right before going over to 11 Academy's? 12 A Yes, so that we could meet up with each other. 13 Q So from Kohl's, did you go over to Academy? 14 A Yes. 15 Q And that's the Academy here, the same one as before, the one 16 located here in Brownsville, Texas? 17 A Yes. 18 Q Okay. 19 A In my truck. 20 Q Which truck is that? 21 A The same white one. 22 Q Is that a Colorado? 23 A Yes. 24 Q And was anyone with you when you drove from Kohl's to 25 Academy? How did you get from Kohl's to Academy? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 7 of 41 365 1 A No. 2 Q What did you do once you parked at Academy? 3 A I went in. 4 Q Do you know if -- if Manuel Pena was already there in 5 Academy's? 6 A He was there. 7 Q Did you find him inside the Academy store? 8 A Yes. 9 Q This time was he by himself or with somebody else? 10 A He had someone else with him. 11 Q Who was that? 12 A His son. 13 Q Does his son have a nickname? 14 A Boy, with affection. 15 Q Okay. 16 see Manuel Pena once you were in the Academy? 17 A At the entrance. 18 Q Where did you or he then go? 19 A The weapons department. 20 Q Same as before? 21 A Yes. 22 Q What happened once you-all got to the counter where the 23 weapons are sold? 24 A The same weapon was chosen. 25 Q Did you engage in that transaction with the employee, or did And where did you first see him? Where did you first Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 8 of 41 366 1 Manuel Pena engage in that transaction with the employee? 2 A It was him. 3 Q At what point did you give Manuel Pena the $400? 4 A I don't recall exactly. 5 Q So you didn't give it to him right in front of the counter 6 in view of the employee? 7 A No. 8 Q Were you with him -- well, let me ask you this: 9 did it take him to buy from the time he got to the counter to It was in one of the aisles. How long 10 the time he walked out with the -- with the rifle? How long did 11 it take him to actually make that purchase more or less? 12 A An hour. 13 Q During that hour, were you with him the entire time? 14 A Not all the time. 15 Q What did you do? 16 A I don't recall if I went to the bathroom or I went to the 17 truck or looking at articles. 18 Q 19 were you inside Academy, or were you already outside? 20 A Outside. 21 Q What did you -- what were you doing outside? 22 A A laser. 23 Q That laser that you were going to give him is what kind of 24 laser? 25 A And when -- when he was done with the -- with the purchase, I was going to give him a laser. It's very similar to like a bullet. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 9 of 41 367 1 Q And what is it used for? 2 A To equalize the scope, sight the scope. 3 Q To sight the scope? 4 A Yes, to sight the scope. 5 Q How is it used? 6 A You put it in like a bullet, and the lens adjusts to 7 wherever the light goes. 8 Q Okay. 9 A Yes. 10 Q You had that laser where? 11 A At the end of the weapon or the bullet. 12 Q I know. 13 physically located? 14 A In my truck. 15 Q So you went to get it? 16 A Yes. 17 Q Were you going to walk back into Academy with that laser in 18 your hand? 19 A I turned it over to him outside. 20 Q Where? 21 A I did turn it over to him outside. 22 over by the door or by my truck. 23 Q 24 what? 25 A So that's how you sight the rifle with that laser? But what I'm asking you is where was the laser Where did you have it? I don't know if it was Did you have to wait for him by the truck or by the door or I was to wait for him at the truck. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 10 of 41368 1 Q Did you ultimately wait for him in the truck, or did you 2 walk toward the -- or did you walk to meet him at the door? 3 A 4 we walked together to the truck. 5 Q 6 the rifle with him? 7 A Yes. 8 Q Is it in the box? 9 A Yes. 10 Q Where -- where does he go once you and he -- well, once he's 11 walking out the store? 12 A To the truck? 13 Q Well, I'm asking you. 14 you-all walk to? 15 A I'm responding. 16 Q Oh. 17 A Yes. 18 Q Whose truck? 19 A My truck, the white one. 20 Q Okay. 21 rifle that he has bought for you? 22 A I don't understand the question. 23 Q Well, what I'm asking is you said Manuel Pena had that 24 rifle. 25 A I ran into him at the exit where the entrance is, and then Okay. Yes. And now that you-all are walking out, does he have Where do you-all go? Where do Your answer is you-all went to the truck? What, if anything, does Manuel Pena do with that He purchased that rifle, walked out with it, correct? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 11 of 41369 1 Q My question is, sir, did he -- did he hand it to you, or did 2 he put it some place? 3 A He put it in the truck. 4 Q He put it in the truck? 5 A Yes. 6 Q The bed of the truck? 7 A Yes. 8 Q And what -- what about the receipt? 9 A He gave me the receipt and the change, the money. 10 Q Okay. 11 get from the truck? 12 A Yes, at that same moment. 13 Q Whose laser was it anyway? 14 A His. 15 Q So you were just returning it to him? 16 A Yes. 17 Q And once you got the rifle and the change with the receipt, 18 what did you do? 19 A I went to Kohl's. 20 Q Did you immediately go to the store once you left in your 21 truck, or did you try to stop and do something else before going 22 to Kohl's? 23 A I went to the rest room. 24 Q Where? 25 A I don't recall if it was the McDonald's or Church's Chicken, Did you give him the laser that you said you went to I returned to the store. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 12 of 41370 1 Church's. 2 Q 3 the Church's Fried Chicken place? 4 A Yes. 5 Q Are those businesses just right there near Academy or what? 6 A Yes, nearby, nearby. 7 Q In the same shopping center? 8 A Yes, correct. 9 Q Why didn't you just go directly to Kohl's where the agents So you went -- you went to either McDonald's or Church's, 10 were waiting? 11 A Because I had to go to the rest room. 12 Q So did you then go to Kohl's? 13 A Pardon? 14 THE COURT: 15 THE WITNESS: You have to answer yes or no. Yes. 16 BY MR. PONCE: 17 Q Did you meet with the agents there in the parking lot? 18 A Yes. 19 Q What did you do there? 20 A They -- I turned the receipt and the money over to them, and 21 they retrieved the weapon. 22 Q 23 box like this like I'm showing you here, Exhibit 26? 24 A Yes. 25 Q I'm going to show you Government Exhibit No. 19. So when you say you turned over the weapon, essentially a Do you see Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 13 of 41371 1 that, sir? 2 A Yes. 3 Q What is this? 4 A The receipt. 5 Q For the second purchase, the one on -- on December the 19th 6 of 2011? 7 A Yes. 8 Q And was that also for a Remington 770 model rifle, 270 9 caliber? 10 A Yes. 11 Q The serial number is indicated there. 12 the receipt, sir? 13 A Yes. 14 Q Once you turned over this receipt and the weapon to the 15 agents, what did -- what happened next? 16 A I don't recall. 17 Q Did -- was that your last contact with agents? 18 A Yes. 19 Q For that day? 20 A Yes. 21 Q Later did you talk to them some more? 22 A Yes. 23 Q In other words, what I'm also asking is did you tell them 24 What had happened inside the Academy? 25 A Yes. Do you see that on Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 14 of 41372 1 Q Now, sir, have you -- have you ever sold any rifles or other 2 kind of weapon to -- to Manuel Pena or his friends? 3 A No. 4 Q Has Manuel Pena ever sold you any of -- of his weapons? 5 A No. 6 Q These weapons that you mentioned earlier, the .22 and this 7 other one, the JVN or the ones we see here on Exhibit 11 and 8 Exhibit 10, these are rifles you already owned before December 9 the 5th, correct? 10 A Yes. 11 Q So why did you -- why did you need to buy another rifle on 12 December the 5th if you already had these two? 13 A Because those were mine. 14 Q And what about rifle for December the 5th? 15 getting that for? 16 A For Junior. 17 Q Chiquin? 18 A Yes. 19 Q Let me -- I want to show a video and ask you to tell me 20 something about it. Who were you It should appear on your screen there. 21 THE COURT: Is this an exhibit number? 22 MR. PONCE: It is Exhibit No. 18, previously admitted. 23 BY MR. PONCE: 24 Q Can you see it there on your screen, sir? 25 A Yes. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 15 of 41373 1 Q Who is that that we're seeing? 2 A Me. 3 Q Where are you going? 4 A To my truck. 5 Q For what? 6 A To get the box with the laser. 7 Q Who are these two people that are walking close to you? 8 A I don't know. 9 Q You're standing right here. Where is the laser -- the box 10 of laser that you talk about? 11 A The one that I have with me. 12 Q Who is now walking next to you to your right? 13 A Manuel. 14 Q And he has the box with the rifle in it, the Remington? 15 A Yes. 16 Q Did you tell him to put it there in that spot on the bed of 17 the truck, or did he just do that on his own? 18 A I don't recall. 19 Q Let me -- let me ask you something. 20 Colorado that you mentioned, correct? 21 A Yes. 22 Q When you walk to the front of Academy, is Manuel Pena 23 waiting for you, or is he just getting out at this time? 24 A He was just getting out. 25 Q Do you give the laser that you have there in that little box He did it on his own. That is the white truck Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 16 of 41374 1 in your hand to him or to -- to Boy? 2 A To his son. 3 Q When do you get the receipt and the change? 4 A After I give his son the laser. 5 Q Is that done there on the bed -- by the bed of the truck? 6 A It was there. 7 Q Who do we see here giving you that box with the Remington? 8 In this video, who is the person giving you that box with the 9 Remington rifle? 10 A Manuel. 11 Q And who is leaving in this black truck? 12 A He. 13 Q Manuel Pena? 14 A Yes. 15 Q The -- now, sir -- now, sir, you weren't -- or have you been 16 charged with the -- with the purchase that happened on December 17 the 5th? 18 A No. 19 Q And you don't expect to be charged by the government? 20 other words, let me ask you this: 21 cooperate with the government? 22 A Yes. 23 Q Because of your continuing cooperation, do you expect to be 24 charged by the government? 25 A I hope not. In Are you continuing to Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 17 of 41375 1 Q 2 charged, correct? 3 A Yes. 4 Q On behalf of the government, I have told you that, correct? 5 A Yes. 6 Q Is that the only thing that has been mentioned to you or 7 promised to you? 8 A Yes. 9 Q Sir, you -- you really didn't want to be here today; is that 10 Okay. Well, you've been told that you're not going to be correct? 11 MR. GAMEZ: Object to leading, Judge. 12 THE COURT: Sustained. 13 BY MR. PONCE: 14 Q Sir, did you want to be here today? 15 A No. 16 Q Could you tell us why you really didn't want to be here 17 today, sir? 18 MR. GAMEZ: Objection to relevancy, Judge. 19 THE COURT: Overruled. 20 THE WITNESS: I'm here because they called me. 21 BY MR. PONCE: 22 Q You received a subpoena to be here? 23 A That's correct. 24 Q Sir, the person that -- that bought this weapon for you 25 on -- on December the 5th and also the second weapon on December Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 18 of 41376 1 the 19th for you, is he in this courtroom today? 2 A Yes. 3 Q Could you please point him out to me and tell me where he's 4 seated, what he's wearing? 5 A To your right side, black jacket or coat top and black tie. 6 7 MR. PONCE: to make sure of proper identification? 8 9 Your Honor, may I approach the counsel table THE COURT: Yes. BY MR. PONCE: 10 Q Is it this gentleman here that I'm pointing to right now? 11 A No. 12 Q Is it this gentleman here that I am pointing to now? 13 A Yes. 14 MR. PONCE: Your Honor, I'd like the record to reflect 15 that the witness has identified the defendant, Manuel Eduardo 16 Pena. 17 THE COURT: The record will so reflect. 18 MR. PONCE: May I have a moment, Your Honor? 19 THE COURT: Yes. 20 MR. PONCE: Your Honor, at this time we pass the 22 THE COURT: All right. 23 It's 20 till 3:00. 21 24 25 witness. Let me give the jury a break. Members of the jury, you will have a recess of 20 minutes. During this recess, you're under my continuing admonishment that Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 19 of 41377 1 you must not form or express any opinion about the facts of this 2 case and cannot do so until it has been submitted to you for 3 your deliberation. 4 (Jury leaves courtroom) 5 6 7 THE COURT: All right. Sir, you may step down. Mr. Ponce, what's the -- when this witness' testimony is concluded, who would be the following witness? 8 9 Thank you. MR. PONCE: I believe it will be Mr. Tommy Morrisey, Agent Tommy Morrisey, and then Agent Shaun Owen -- oh, I'm 10 sorry. 11 Morrisey, followed by the agent. 12 Mr. Raul Garcia, Agent Raul Garcia and then Tommy THE COURT: All right. Thank you. 13 (Recess taken from 2:43 to 3:10.) 14 (Jury enters courtroom) 15 16 17 THE COURT: Thank you. Please be seated. Mr. Gamez, you indicated you have some witnesses available to be sworn? 18 MR. GAMEZ: I do, Judge. 19 THE COURT: All right. If you want to bring them now, 20 we can. 21 the examination of this witness is completed. 22 23 24 25 But if you want to wait until you finish the cross or MR. GAMEZ: If I may bring them in now, Judge, and get them out of the way, Judge. THE COURT: All right. Mr. Gamez's witnesses? Then would you please bring in Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 20 of 41378 1 2 Good afternoon. I'm going to ask all of you who are here to be sworn to please raise your right hand. 3 (Witnesses sworn.) 4 THE COURT: 5 All right. Thank you. I'm going to ask each one of you to tell me your name, beginning with you, sir. 6 THE WITNESS: Rolando Pena. 7 THE WITNESS: Billy Ross. 8 THE COURT: 9 THE WITNESS: Ross, R-O-S-S. 10 THE WITNESS: Anselmo Rosales. 11 THE WITNESS: Jorge Pena. 12 THE WITNESS: Sandra Pena. 13 THE WITNESS: Rafael Pena. 14 THE WITNESS: Guillermo Serrata, Sr. 15 THE WITNESS: Francisco Cardenas. 16 THE COURT: I'm sorry, the last name? I'm invoking the rule. That means all 17 witnesses must remain outside the courtroom until your name is 18 called to testify. 19 anyone except for with the lawyers for the government or the 20 lawyer for the defendant, but you cannot do so in the presence 21 of any other witness. 22 an account of the facts of this case unless it is a report or an 23 account that you yourself have written. 24 25 You must not discuss your testimony with Also you must not read any report of or I would ask you to please wait outside until your name is called. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 21 of 41379 1 THE COURT: 2 All right. Mr. Gamez, you may proceed. CROSS-EXAMINATION 3 BY MR. GAMEZ: 4 Q 5 and I represent Mr. Manuel Pena. 6 Mr. Pena, good afternoon. My name is Ernesto Gamez, Junior, I'll ask you a few questions. And if you do not understand 7 them, please ask me to repeat them. 8 louder than I have in the past day or two; but if you do not 9 hear me, please ask me to repeat the question. 10 I will speak a little Are we clear thus far? 11 A Yes. 12 Q Mr. Gonzalez, I believe you'd mentioned or testified that 13 the two rifles that you had in your possession prior to December 14 the 5th were a Remington 270 and a .22 Mossberg. 15 correct or incorrect, sir? 16 A Would you repeat the question to me? 17 Q Sir, Government's Exhibit No. 10. 18 A Yes. 19 Q Government's Exhibit No. 11, do you recognize it? 20 A Yes. 21 Q These rifles were not purchased on or about December 2011, 22 were they? 23 A No. 24 Q These rifles were purchased by you? 25 A Yes. Would that be Do you recognize it? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 22 of 41380 1 Q And they were in your home, in your apartment in The Border 2 Apartments before the purchase of the rifles on December 5th, 3 2011, or the purchase of the December 19th rifle on 2011, were 4 they not? 5 MR. PONCE: Your Honor, I'm going to object. That's a 6 mischaracterization. 7 testimony was that they were taken in by FBI on December 5th. 8 9 THE COURT: Those weapons were -- I believe the He's referring to Exhibits 10 and 11. Overruled. 10 THE WITNESS: Yes. 11 BY MR. GAMEZ: 12 Q 13 rifles, that being Government's Exhibit No. 11 and Government's 14 Exhibit No. 10, at least some five years prior to December of 15 2011. 16 A The ones that I saw in the pictures, yes. 17 Q Okay. 18 Exhibit No. 11? 19 A 20 shop. 21 Q Did you buy it here in Brownsville? 22 A Yes. 23 Q Was it close to your home? 24 A Perhaps. 25 Q Okay. Okay. I believe you testified that you had purchased these Would that be correct to say? Do you recall where you purchased the 270, Government I don't recall exactly, but I know it was at a store, a pawn At that time when you purchased that particular Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 23 of 41381 1 firearm, that 270 in Government's Exhibit 11, where did you 2 live? 3 A In my house. 4 Q And where was that? 5 A 4955 Las Cruces. 6 Q And is that the house you lived in? 7 A Yes. 8 Q Or was that an apartment? 9 A I moved to an apartment. 10 Q When you purchased this rifle, did you live in a house or an 11 apartment? 12 A House. 13 Q Okay. 14 of the firearm, did you give the address of the house or an 15 apartment? 16 A House. 17 Q Okay. 18 A Yes. 19 Q Did it have an address on it? 20 A In the residency card, I don't recall. 21 Q Did you present your driver's license? 22 A Yes. 23 Q What address was on that driver's license? 24 A The one from the house. 25 Q Was that your house, sir? Where did you reside? Yes. The address you provided in Form 4473, the purchasing Was your -- did you present your resident alien card? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 24 of 41382 1 A Yes. 2 Q Did you own that house on or about the time you purchased 3 this particular firearm? 4 A Yes. 5 Q And that house is on Las Cruces, Brownsville, Texas, street 6 Las Cruces? 7 A Yes. 8 Q Did you produce other evidence of residency when purchasing 9 this rifle? 10 A Yes. 11 Q What did you produce? 12 A I don't recall. 13 Q Do you have your -- have you since changed your address in 14 your -- on your driver's license since the time of purchasing 15 that, Government's Exhibit No. 11? 16 A Excuse me, would you repeat the question to me? 17 Q Do you have a driver's license with you, sir? 18 A Yes. 19 Q Would you check the address on that driver's license, sir? 20 THE COURT: Okay. I think you need to establish that if 21 he shows -- if he tells you what the address is on his license, 22 whether it was the address that was on that license on the 23 relevant date. 24 BY MR. GAMEZ: 25 Q Did you present, sir, on the day of the purchasing of Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 25 of 41383 1 Government Exhibit No. 11, being a 270 rifle, did you present 2 your driver's license? 3 A No. 4 Q What did you present, sir, as far as residency, proof of 5 residency? 6 A You mentioned a 270, and I didn't have any 270 at that time. 7 Q Okay. 8 Government Exhibit No. 11, when you purchased that particular 9 firearm and you filled out Form 4473 and answered in the space 10 where it says "pawn shop," all right, what information did you 11 give at that time purchasing this firearm? 12 you give to buy this rifle? 13 A 14 and the receipts, those. 15 Q 16 residency card? 17 A Yes. 18 Q Okay. 19 A Yes. 20 Q Okay. 21 A Other receipts that I don't recall. 22 Q Okay. 23 of this particular firearm, do you have that with you? 24 A 25 the one with my current address. Let's look at Government -- when you purchased What information did I don't recall exactly concerning my residency, my license Okay, sir. Just that I don't recall. I'm not trying to confuse you. Thank you. One is your And the other was your driver's license? And what else did you provide? The driver's license that you showed on the purchase I changed it on one occasion, and now the one that I have is Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 26 of 41384 1 Q And what address is that that you currently have, sir? 2 3 MR. PONCE: Your Honor, I'm going to object to the relevance as to what his actual physical address is right now. 4 MR. GAMEZ: Your Honor, he says and states under oath 5 that he did not have the proper documentation of -- to present 6 to the Academy for the purchase of a firearm, and it's for that 7 very reason that he had someone else allegedly buy this weapon 8 for him. 9 and he's purchased this rifle before, and it's paramount to our Our position is he did have the proper requirements, 10 case that he has falsified that, Judge, made false statements 11 that he could not purchase this rifle. 12 purchased this rifle, and it was exactly for that, Judge, the 13 community. 14 THE COURT: Okay. He did, and Manuel Why don't you ask him if the address 15 on the license is the address at The Borders Apartments since 16 there's already been testimony about that. 17 BY MR. GAMEZ: 18 Q 19 Does it have the same address as The Border Apartments? 20 A No. 21 Q You do not have The Border Apartment address on your license 22 now? 23 A No. 24 Q I believe you testified that you had changed your address 25 from the time of purchasing Government's Exhibit 11? Is your license, as Your Honor has stated, the same address? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 27 of 41385 1 A Yes. 2 Q Okay. 3 Exhibit No. 11, you had Las Cruces address, which is your home. 4 A No. 5 Q What address did you have when you purchased Government 6 Exhibit No. 11? 7 A Las Cruces, my house. 8 Q Okay. 9 A Yes. 10 Q It's in your name? 11 A Yes. 12 Q And your wife's name? 13 A Yes. 14 Q Okay. 15 A Yes. 16 Q And the utilities at that time were in your name? 17 A No. 18 Q Your wife's name? 19 A Yes. 20 Q Okay. 21 vehicle or trucks that you purchased, did you have any in your 22 name? 23 A I had a lot of vehicles. 24 Q I'm not asking you, sir, which vehicle you had. 25 have license plates on your vehicles? Now, at the time of purchasing Government's Was that where -- do you still own that home? And you pay taxes on that home? And the car that you purchased, did you have -- or I don't recall. Did you Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 28 of 41386 1 A I think so, yes. 2 Q Why sure. 3 in our Texas Department of Public -- system of highways, you 4 would have a license plate in your vehicle, would you not? 5 A Yes. 6 Q Do you ever buy license plates or renew your license plates 7 for your vehicles? 8 A I must have done so. 9 Q Okay. You would have, wouldn't you, in order to drive In fact, you did so for this white truck that you now 10 possess, and you had -- now you have license plates on them, and 11 the address was your Border Apartment address? 12 A Yes. 13 Q Okay. 14 plates, sir? 15 A I don't recall. 16 Q Would it be fair to say, sir, that you've lived in The 17 Border Apartments for well over a year-and-a-half? 18 A Yes. 19 Q Would it be fair to say that you've lived there all of 2012? 20 A No. 21 Q Sir, would you -- how long would you say you've lived in The 22 Border Apartments? 23 A I don't live there at those apartments anymore. 24 Q Okay. 25 Not have you left there, sir. When did you place The Border Apartment address When did you buy those plates? How long did you live there at The Border Apartments? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 29 of 41387 1 A A year, year-and-a-half. 2 Q Did you live there -- did you not live there, sir, all of 3 2011? 4 A Yes. 5 Q Okay. 6 your truck that was at the Academy on December the 19th and 7 December the 5th of 2011? 8 truck? 9 A Would you ask me that question again? 10 Q Yes, sir. 11 Government Exhibit 4? 12 A Yes. 13 Q Where did you buy that truck at, sir? 14 A At a car lot from a friend. 15 Q What's the name of the car lot? 16 A Roche. 17 Q Okay. 18 A The one that's seated inside? 19 Q Did you buy that truck in 2010? 20 A Perhaps. 21 Q 2009? 22 A No. 23 Q Okay. 24 A Yes. 25 Now, if I may, respectfully, sir, when did you buy When did you buy that particular Did you buy your white truck -- do you recognize Roche. Is that you in Government's Exhibit No. 1? Yes. You bought it in 2010? MR. PONCE: Your Honor, he's mischaracterizing -- I'm Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 30 of 41388 1 objection -- I'm objecting. He's mischaracterizing the 2 testimony. 3 now his next question is phrased as if it's a positive. He says that perhaps he wasn't absolutely sure, and 4 THE COURT: 5 cross-examination. 6 BY MR. GAMEZ: 7 Q 8 gave The Border Apartment address? 9 A Perhaps. 10 Q And that would be fair to say, because the agents used your 11 license plates and track that address from your license plates 12 to The Border Apartments where you lived in December 2011. 13 Would that be fair to say? 14 MR. PONCE: Okay. All right. You can clarify it on Or redirect, rather. So can we say that in 2010, sir, your plates, you I'm going to object. Speculation on his 15 part. 16 address, even if they had a partial plate, would be something he 17 wouldn't know about, and that's speculation. 18 How the agents ultimately were able to track down that THE COURT: Would you please explain or have the witness 19 explain how he would know what the agents did? 20 BY MR. GAMEZ: 21 Q 22 your plates? 23 A No. 24 Q Okay. 25 apartment? Sir, did the agents tell you: Did you ask them: We found your address from How did you get here to my Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 31 of 41389 1 A No. 2 Q Okay, sir. 3 purchased the vehicle, were 2010, and you bought the vehicle on 4 or about 2010, and your address was your Border address, and the 5 agents are in your house. 6 Border Apartments before you purchased your truck? 7 A 8 exact. 9 Q Now, we know that your plates, when you Now, how long had you lived at The The dates that you're giving are tentative. Yes, sir. They're not And I appreciate that, and I'm not trying to ask 10 you an exact date. Just simply asking you while you purchased 11 your truck in 2010 because the plates say and give your address 12 of The Border Apartments, how long have you lived in your 13 apartment before purchasing that truck? 14 A 15 in the apartments. 16 Q Do you see this rifle, sir, Government's Exhibit 10? 17 A Yes. 18 Q Excuse me, Your Honor. I don't recall if I bought it before or after I was already 19 THE COURT: Yes. 20 BY MR. GAMEZ: 21 Q Do you know a Rolando Pena, sir? 22 A Yes. 23 Q Who is he? 24 A Manuel's brother. 25 Q Is he someone you know? Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 32 of 41390 1 A Yes. 2 Q Is he in the hunting lease -- in a hunting lease with you? 3 A Yes. 4 Q Did you take this weapon with you, to the hunting lease with 5 you? 6 A Yes. 7 Q Did your son kill an armadillo with that rifle? 8 A Yes. 9 Q Did you not tell Mr. Pena -- first of all, this past season, 10 would it be fair to say that this is the first time you brought 11 this rifle to the lease? 12 MR. PONCE: Your Honor, I'm going to object for 13 clarification. 14 needs to be something more specific, Your Honor, one. 15 When he says "at this time" or "this season," it And two, the first question, I'm not sure it's part of this 16 question, Your Honor, referred to Mr. Pena. 17 this defendant? 18 compound question, and I'm not certain that the witness would 19 understand to provide an appropriate answer. 20 Was he referring to Was he referring to Rolando Pena? THE COURT: Would you clarify, Mr. Gamez? It's a Would you ask 21 the witness what he would understand to be the hunting season 22 you're referring to? 23 MR. GAMEZ: Thank you, Your Honor. 24 THE COURT: First, and then what Pena you are speaking 25 of. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 33 of 41391 1 BY MR. GAMEZ: 2 Q 3 deer, would you agree that it commenced on December the 15th, 4 2011, and terminated in January the 15th, 2011? This past season hunting deer, white tail, Texas white tail 5 6 THE COURT: Actually he said January 15th, 2011. It was translated as -- 7 MR. GAMEZ: 2012. 8 THE COURT: -- 2012, but the question was misstated. 9 MR. GAMEZ: All right, Judge. Good. Yes, if I may. 10 BY MR. GAMEZ: 11 Q 12 about, would you agree, is Texas white tail deer hunting, State 13 of Texas, commenced -- commenced -- excuse me, November the 14 15th to January the 15th, 2012? 15 A Yes. 16 Q And you'll agree with me, sir, respectively, that you've 17 been in this lease for some four years, five years? 18 A No. 19 Q How many years would you say you've been on this lease then, 20 sir? 21 A Two. 22 Q Would this have been your third year? 23 A No. 24 Q This would have been your second year? 25 A Yes. The hunting season, this past season that we're talking Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 34 of 41392 1 THE COURT: 2 into the microphone. 3 THE WITNESS: Sir, you're going to have to speak louder Okay. 4 BY MR. GAMEZ: 5 Q 6 deer season, Texas white tail deer start on November the 15th 7 and they end in the middle of January of the next year? 8 A Yes. 9 Q Okay. And would you agree with me that the deer seasons, hunting Now, this rifle, Government's Exhibit 11, you brought 10 for the first time this past deer season, being from 11 November 15th, 2011, to January 18th, 2012? 12 MR. PONCE: Your Honor, I'm going to object. 13 referring to this rifle, and on the screen -- he says 14 Exhibit 11. He's I see Exhibit 10 there on the screen. 15 MR. GAMEZ: Exhibit 10. 16 THE COURT: You stated Exhibit 11. 17 BY MR. GAMEZ: 18 Q 19 you brought to the lease this past November 15th, 2011, to 20 January 15th, 2012? 21 22 Government's Exhibit 11, .22 Mossberg, was that the rifle MR. PONCE: Same objection, Your Honor, if he's referring to Exhibit 11 when -- 23 MR. GAMEZ: 10. 24 THE COURT: You stated Exhibit 11. 25 MR. GAMEZ: I did, Judge. My eyes now, I guess. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 35 of 41393 1 BY MR. GAMEZ: 2 Q Exhibit 10 for my correction. 3 A Yes. 4 Q And would you agree with me that the -- 5 Perhaps, yes, I did use it. THE COURT: He's answering a different question. You 6 asked whether he brought it to the lease, and he has -- his 7 answer was, "Perhaps I did use it." 8 answer is not responsive to your question. 9 BY MR. GAMEZ: Would you have him -- his 10 Q Sir, did you take it to the lease with you, Government's 11 Exhibit 10, being the .22 that you purchased in a pawn shop? 12 It's not a trick question, sir. 13 A Once, yes. 14 Q Okay. 15 rifle? 16 A Yes. 17 Q And one of the times you took it, an armadillo was killed 18 with it? 19 A I don't recall that, but I did take it with me. 20 Q I'm not saying there's anything wrong with it, sir. 21 A No, no. 22 Q Okay. 23 with me, sir, that the year before that that you went to the 24 lease, you did not take this rifle? 25 A Yes. I'm not trying to trick you, sir. You did take the So now that we've established that, would you agree Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 36 of 41394 1 Q 2 rifle for this past hunting season? 3 A No, it wasn't for the last one. 4 Q Did you not tell Mr. Pena -- not Manuel Pena, Rolando Pena, 5 and Mr. Pena that you bought this rifle for this hunting season? 6 A I don't recall. 7 Q Okay. 8 past hunting season, and you didn't take it to the hunting 9 season before then, the 2010, 2011 hunting season, but you did 10 Okay. I already had it. Well, you'll agree with me you did take it to this take it to this past hunting season? 11 12 Would you agree with me, sir, that you bought this THE COURT: a time. 13 I'm going to ask you to ask one question at You've got two questions in there. MR. GAMEZ: Okay, Judge. 14 BY MR. GAMEZ: 15 Q 16 November, somewhere in that time is what you told Roland Pena 17 and Manuel Pena on this firearm, would that be correct, from a 18 pawn shop? Sir, you bought this fire rifle some months, either October, 19 THE COURT: Excuse me. 20 MR. GAMEZ: Of 2011. 21 THE WITNESS: Of what year? I don't recall. 22 BY MR. GAMEZ: 23 Q 24 didn't recall the 2011 firearm, what pawn shop, but you recall 25 what pawn shop you bought the Government's Exhibit 10 firearm Okay. Do you recall which pawn shop -- I know you said you Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 37 of 41395 1 at? 2 A I think so. 3 Q Okay. 4 question either, sir. 5 Exhibit 10 at? 6 A 7 Paredes and Alton Gloor. 8 straight ahead. 9 Q 10 Where did you purchase this -- and it's not a trick Where did you purchase Government's A new pawn shop, a new store that they opened over there on Alton Gloor to the left and Paredes It's a pawn shop that's there. Did you buy it for this past hunting season, sir, for your son? 11 MR. PONCE: 12 interpreter. 13 answered. 14 Your Honor -- I didn't mean to interrupt the Objection. THE COURT: That question has been asked and I'll allow it. But, you know, it would make 15 it a whole lot easier for the translation if you would specify. 16 When you say "this past hunting season," specify -- and then the 17 previous, give me a time, a specific time that you're -- and 18 year that you're talking about. 19 something specific. 20 BY MR. GAMEZ: 21 Q 22 sir. 23 would it be fair to say that you bought this rifle at a pawn 24 shop, and they sold it to you so your son would have a firearm 25 to have? Say 2011, 2012, or 2010, 2011, For the two thousand -- again, this is not a trick question, For the 2011, 2012 Texas white tail deer hunting season, Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 38 of 41396 1 A No. 2 Q Sir, would you do this for us? 3 at the pawn shop and see when you purchased that firearm? 4 MR. PONCE: Would you go check and see Your Honor, I'm going to object. All the 5 witnesses are under the rule and admonished not to do any 6 further discussions with other individuals regarding anything 7 involved in the trial. 8 9 10 MR. GAMEZ: excused and he be allowed -- after he's finished today, that he be allowed to return so I can ask him that question. 11 12 THE COURT: Two, that assumes that the pawn shop does have records. MR. GAMEZ: Please note my objection, Judge. I believe pawn shops have to have records of prior purchases. 17 18 The objection is sustained. 15 16 First of all, that assumes that he doesn't have any records. 13 14 Judge, I would ask that the witness not be THE COURT: All right. Are you testifying? Do you want to testify instead of representing your client? 19 MR. GAMEZ: I don't believe I can testify, Judge. 20 THE COURT: I agree. 21 BY MR. GAMEZ: 22 Q 23 Government's Exhibit No. 10? Ask a question. Sir, what address did you give at the time of purchasing 24 MR. PONCE: Objection. Repetitive. 25 THE COURT: I'll allow it. Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 39 of 41397 1 THE WITNESS: I don't recall. 2 BY MR. GAMEZ: 3 Q Do you remember the address of The Border Apartments? 4 A Would you ask -- 5 Q Do you remember The Border Apartment address? 6 A Not exactly. 7 Q Do you recall if you used The Border Apartment address for 8 purchasing this firearm? 9 10 MR. PONCE: Objection, Your Honor. Repetitive. That question has been asked and answered several different ways. 11 THE COURT: Sustained. 12 BY MR. GAMEZ: 13 Q 14 season, being November 11th to January the 12th, that: 15 this rifle for this deer season? Did you ever tell Mr. Pena and his brother this past deer 16 MR. PONCE: Same objection. 17 THE COURT: Sustained. Asked and answered. 18 BY MR. GAMEZ: 19 Q Sir, how long have you known Mr. Pena? 20 A Perhaps more than five years. 21 Q Would you say ten? 22 A That might be. 23 Q Do you only go hunting with Mr. Pena? 24 A No. 25 Q Do you go fishing with him? I bought Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 40 of 41398 1 A Not with him, but -- 2 Q When you would go fishing, would you contribute financially 3 to the fishing trips? 4 A I don't recall, no. 5 Q In the year of 2011 to 2012, January, hunting trip, did you 6 contribute to that lease financially? 7 A No. 8 Q Well, then, how did you expect to go hunting? 9 A They invited me. 10 Q Where would you sleep? 11 A My truck. 12 Q Did you ever sleep in a trailer? 13 A No. 14 Q Did you ever take your boy with you? 15 A Yes. 16 Q Where would your boys sleep? 17 A I don't recall. 18 don't know. 19 Q 20 sleeping in a truck in this past year lease season of 21 November 11th, 2011, and January 2012 season, but you don't 22 remember sleeping in the trailer with your son? 23 A I told you that, no, I don't recall. 24 Q Who would invite you, sir, to this lease? 25 A They would. In my truck. Maybe there with me at the trailer. Respectfully, sir, this is August 2012. I You remember Case 1:12-cr-00472 Document 103-3 Filed in TXSD on 01/22/13 Page 41 of 41399 1 Q Who's "they"? 2 A Manuel and his brothers. 3 Q But the main one would be who that would invite you? 4 A Manuel and Jorge. 5 Q And is it your testimony that Manuel would let your son 6 sleep in a truck as opposed to a trailer, sir? 7 A Would you repeat the question to me? 8 Q Is it your testimony that Manuel would let your 10 or 9 11-year-old son sleep in a truck as opposed to a trailer? 10 MR. PONCE: I'm going to object. There's been no 11 testimony that the son that he had been speaking about all this 12 time is a 10 or 11-year-old son. 13 THE COURT: All right. I'll allow him to explain which 14 son he is talking about. 15 BY MR. GAMEZ: 16 Q How old is your son Lalo, Mr. Gonzalez? 17 A 15. 18 Q Back then, was he 13? 19 A Yes. 20 Q Is it your testimony that your son would sleep in the truck 21 as opposed to sleeping in a trailer? 22 A 23 my truck. 24 Q 25 your son Lalo on his own by himself when you wouldn't go? He might have slept in the trailer. He might have slept in We almost hardly slept. Would it be true, sir, that Mr. Pena at times would take Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 1 of 31 400 1 A 2 caught up with them afterwards. 3 Q 4 because you couldn't go, and Lalo, your son, would go with 5 Manuel. 6 A No. 7 Q Why would your son go ahead with Manuel instead of just 8 waiting to go with you, his dad? 9 One time my son went ahead, on ahead with them, and then I Okay. And there were other times that you just didn't go Would that be correct? MR. PONCE: Your Honor, I'm going to object. Can I ask 10 for clarification, what he means by going again? 11 the lease, then he goes again into the brush to seek out deer or 12 whatever they're looking for, or go again as in leave from the 13 house to the lease? 14 MR. GAMEZ: Are they at I'm not certain that that's clear. I asked him, Judge, if Manuel Pena, the 15 defendant, had ever taken his son on his own. And the testimony 16 will be that he has, Judge. 17 they only went ahead and I came later, I believe is what his 18 testimony was. And I understand that he says no, 19 THE COURT: You mean from home to the lease? 20 MR. GAMEZ: Yes, Judge. 21 THE COURT: That's the clarification requested. 22 Thank you. 23 Would you repeat the question with a clarification? 24 BY MR. GAMEZ: 25 Q Are you saying that your son never went on his own with Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 2 of 31 401 1 Manuel Pena without you showing up or going to the lease? 2 A No. 3 Q I believe you testified that Manuel would be the main one to 4 invite you to go? 5 6 MR. PONCE: Objection, mischaracterization. the answer was Manuel and Jorge. 7 MR. GAMEZ: I asked "the main one." 8 THE COURT: Just ask him if that's not so. 9 I believe BY MR. GAMEZ: 10 Q 11 friend in this hunting lease to ask you and invite you to go? 12 A 13 hunting lease. 14 access. 15 go, and that's when I would go with them. 16 Q Okay. 17 A No. 18 Q Okay. 19 were you expected to put in a portion of the expenses of the 20 ranch? 21 A 22 that last year. 23 Q 24 25 Is it not so that Manuel Pena was the main guy, your main He was the one that had gotten me the main contact for the But all of the brothers, because of him, had And everyone -- when some would not go, others would You didn't have a job at that time, did you? Now, sir, to the best of your knowledge and belief, That's what they were looking at and putting into detail Okay. And thank you, sir. Now, if I may, if that's what they were looking at, did you pay your portion for the use of the trailer? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 3 of 31 402 1 A No, not for the trailer. 2 Q Okay. 3 A Around 10, 12. 4 Q Okay. 5 blinds, the deer blinds? 6 A No. 7 Q Did you make your own deer blind? 8 A No. 9 Q Did you spend any money to build a deer blind? 10 A The last one, yes. 11 Q How much did you spend, sir? 12 A Around $500, $400. 13 Q You paid for the whole deer blind, sir? 14 A Yes. 15 Q Where did you buy the material for the deer blind? 16 A A friend of mine gave us the material for one, the one that 17 we're talking about now, and another one for him. 18 the labor and whatever was missing. 19 Q 20 first year or the second year? 21 A The last year. 22 Q Okay. 23 the lease? 24 A No. 25 Q Okay. Okay. I made a blind or -- So how many blinds were on the ranch, the lease? Did you partake in splitting up the expenses on the When did you pay for this deer blind? And I paid Was it the The last year. So the first year, did you pay anything to go into So the first year you didn't, but the second year you Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 4 of 31 403 1 did. You paid for a blind. 2 A Made it for me in Matamoros. 3 Q And did you bring it across? 4 A I went to get it. 5 Q That's what you contributed? 6 not? 7 A No, it was for everybody. 8 Q What was that, sir, your answer? 9 A It was for everyone. 10 Q It was for the community, was it not? 11 A Yes. 12 Q Okay. 13 I understand, contribution that year, this past year, 2011 to 14 2012 deer season? 15 A So everybody could use that blind, and that was your, MR. GAMEZ: Judge, may I approach the witness? 17 can do that right here. 18 objected to, Judge. 19 21 That was your blind, was it Yes. 16 20 Who made the blind? No, I I have the exhibits that were not THE COURT: I'm sorry. Have you already made an offer MR. GAMEZ: I'd like -- I'd like to tender, Judge, of them? 22 Exhibits 3, 4, 5, 6, 7, 8, 9 being deer blinds and feeders and 23 ranch trailer home and -- 24 25 THE COURT: Okay. You're not supposed to testify about the contents of a photograph. Are you making an offer about Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 5 of 31 404 1 certain exhibits? 2 MR. GAMEZ: Yes, I would like. 3 THE COURT: Would you please recite the numbers of the 4 exhibits? 5 MR. GAMEZ: I'd like to introduce, Judge, 3, 4, 5, 6, 7, 6 8, 9, 10, 11 on behalf of the defendant that have been presented 7 and not objected to by opposing counsel. 8 MR. PONCE: No objection, Your Honor. 9 THE COURT: Admitted. 10 BY MR. GAMEZ: 11 Q 12 Do you recognize it? 13 A Yes. 14 Q What is that, sir? 15 A The blind that we have been talking about. 16 Q Did you bring this from Matamoros? 17 A Yes. 18 Q And you paid for this? 19 A Yes. 20 Q And this belonged to everyone? 21 A Yes. 22 Q Do you recognize Defendant's Exhibit 4? 23 A (No response.) 24 Q Do you recognize it? 25 A Yes. I'll show you what's been marked as Defendant's Exhibit 3. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 6 of 31 405 1 Q Did you have anything to do to pay for that blind? 2 A Who? 3 Q You, sir. 4 A Yes. 5 Q You spent money on this blind too? 6 A Yes. 7 Q No. 5, you recognize that blind? 8 A It's the same one. 9 Q No. 5 is the same blind as No. 4? 10 A The same one. 11 Q This is the side of it? 12 A Uh-huh. 13 Q Did you spend money for this blind, looking at the side of 14 it, sir? 15 A Yes. 16 Q Who made this blind? 17 A In Matamoros. 18 Q Exhibit 6. 19 A No. 20 Q You bought no feeders? 21 A No. 22 Q This trailer, do you recognize this trailer? 23 A Yes. 24 Q Did you ever sleep inside it? 25 A I don't recall. I paid for the labor. Did you buy any feeders? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 7 of 31 406 1 Q You recognize the inside, Exhibit No. 9? 2 A Yes. 3 Q You ever -- recognize the inside. 4 your testimony that you recognize the inside and that you slept 5 in it? 6 MR. PONCE: Would you like to change Your Honor, compound question. I believe he 7 said he didn't remember sleeping inside, but he did recognize 8 the inside. 9 THE COURT: Sustained. 10 BY MR. GAMEZ: 11 Q Do you remember Exhibit 11? 12 A I don't recall, sir. 13 Q Does it look like a little tarp, a tin shed for shade? 14 A There wasn't any. 15 Q Now, sir, besides the .22 that you took this past deer 16 season, what other rifles would you take to hunt with? 17 A The JCP, the 3006. 18 Q Is that that brown rifle that you bought in the pawn shop? 19 A Yes. 20 Q Now, sir, did you ever get together collectively with Manuel 21 and the brothers and it was agreed that another rifle, 270, was 22 needed for the ranch? 23 A I don't recall. 24 Q So you're not saying that it didn't happen. 25 saying you don't remember. What is No. 11? You're just Would that be correct, sir? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 8 of 31 407 1 A I don't recall. 2 Q Would you agree, sir, with me that you didn't have a job and 3 that you contributed the least in this ranch or in this lease, 4 this lease hunt this past year? 5 A No. 6 Q Would you agree with me, sir, as you testified, the year 7 prior lease, the year prior hunting season, 2010 November to 8 2011 deer season, you contributed nothing, I believe you 9 testified? 10 A I did answer the right way, and in 2011 I didn't contribute 11 anything. 12 what I said I had, the blind. 13 Q Sir, do you have your driver's license with you now? 14 A Yes. 15 Q Without showing me your driver's license, can you tell me 16 what your driver's license address is? And then in -- and then this last year, I -- I put in 17 MR. PONCE: Your Honor, objection. 18 THE COURT: All right. Mr. Gamez, he has never been 19 asked what the address was on his license on the date of 20 December 5th or 19th. 21 what's relevant is what that address was at the time, not what 22 it is today. 23 BY MR. GAMEZ: 24 Q 25 the 5th, 2011? So that the jury may understand that Sir, Mr. Sergio Gonzalez, what was your address on December Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 9 of 31 408 1 THE COURT: 2 BY MR. GAMEZ: 3 Q Excuse me. That's a different question. On your driver's license. 4 THE COURT: I suggest, so that his address does not 5 become public record, that you ask him whether his address on 6 the occasion of those two purchases was -- is the same as the 7 address he has on his license today, and then I'll determine 8 whether I will allow you to testify in a public proceeding what 9 his current address is. 10 MR. GAMEZ: Very good, Judge. 11 BY MR. GAMEZ: 12 Q 13 address on December the 5th, 2011? 14 A No. 15 Q Okay. 16 oath that you had changed your driver's license address? 17 A Yes. 18 Q I've been trying -- and I'm trying to find out, do you 19 remember when you changed your driver's license address? 20 A No. 21 Q Do you remember the address on your driver's license on 22 December the 5th, 2011? 23 A Yes. 24 Q Do you remember your address on December the 19th, 2011? 25 A Yes. Sir, is the address in your driver's license the same as the I'm sorry, sir. Would you repeat that? Sir, do you recall telling me or testifying under Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 10 of 31409 1 Q Is it the same address you have now? 2 A I think -- I think so -- no, no. 3 THE COURT: On the driver's license. 4 BY MR. GAMEZ: 5 Q On the driver's license. 6 A It's not the same. 7 Q Okay. 8 changed the address on your driver's license? 9 A It's not the same. I changed it. So from December the 5th, 2011, until today, you Not from -- not from that date on. I changed it about a 10 month ago. 11 Q 12 driver's license, sir? 13 A I went to the DPS office. 14 Q Did someone tell you to go to the DPS office and change your 15 address? 16 A No. 17 Q Why did you just decide to go change your address a month or 18 two ago, sir, on your driver's license? 19 A Because I moved from the apartment to the house. 20 Q Okay. 21 You changed -- how did you change the address on your THE COURT: Speak at the microphone, Mr. Gamez. 22 BY MR. GAMEZ: 23 Q 24 address, so you went and changed your driver's license a month 25 or two ago? So you -- you moved from The Border Apartments to a home Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 11 of 31410 1 A About a month ago I changed the license -- the address on my 2 license. 3 Q 4 tell me the address you had when you went to DPS and says change 5 my address from this address to the address you have now? 6 was the prior address on your driver's license? 7 A I took away the one that was from the apartments. 8 Q And the -- what address, the apartment Borders? 9 A Yes. 10 Q Okay. 11 proper address in your driver's license, that is The Border 12 Apartments that you changed to a different address now. 13 else did you need to buy a firearm, sir? 14 A The receipts. 15 Q Of utility bills were not in your name? 16 A No. 17 Q But you agree the license plates were in your name? Sir, without telling me the address you have now, will you 18 So you had your resident aliency card, you had the THE COURT: 19 Okay. What He's already testified about that. You don't have to answer the question. 20 BY MR. GAMEZ: 21 Q 22 sir? 23 A Yes. 24 Q I'll show you what's marked as Government Exhibit 15. 25 What You were making mortgage payments to a house, were you not, MR. GAMEZ: Judge, did I mess with this, Judge? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 12 of 31411 1 2 THE COURT: I'm not sure. Mr. Ponce, would you please assist Mr. Gamez? 3 MR. PONCE: Yes, Your Honor. 4 BY MR. GAMEZ: 5 Q 6 Government Exhibit 15. 7 payments to a house? 8 A Yes. 9 Q Why didn't you take that to buy a firearm? Looking at Question 20C titled "Document for aliens," 10 MR. PONCE: Sir, you said you were making mortgage Your Honor, I'm going to object unless this 11 witness has been established as an individual who can read and 12 understand the English written word. 13 THE COURT: I would object. Would you please have the document or the 14 relevant part of the exhibit you're referring the witness to, 15 have it translated unless you can establish that he understands 16 the language you're pointing to. 17 BY MR. GAMEZ: 18 Q Okay, sir. 19 A A little, yes. 20 Q What do you believe a mortgage payment is, sir? 21 A The payment of a house in this case. 22 Q And were you an -- you've testified you were an owner of a 23 home. 24 A Yes. 25 Q Okay. Do you understand what a mortgage payment is? Were you making mortgage payments for a home? Yes. So understanding that you had your resident alien Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 13 of 31412 1 card, you had a proper address on your driver's license, did you 2 know that all you had to take was a receipt of mortgage payments 3 that you were making? 4 MR. PONCE: I'm going to object. That's not what the 5 wording within that exhibit says. 6 proof of residency. 7 Dallas, somewhere else. 8 facts, Your Honor. 9 THE COURT: Sustained. 10 MR. GAMEZ: Judge, that's a home here on Las Cruces, 11 What's still necessary is That mortgage could be to a house here, That's an improper question and assumes Brownsville, Texas. 12 THE COURT: All right. You need to point the witness to 13 the language and what he understood rather than you're telling 14 him what it means. 15 BY MR. GAMEZ: 16 Q 17 Okay. Do you -- THE COURT: Ask him what was his understanding. 18 BY MR. GAMEZ: 19 Q 20 needed to purchase a firearm was, sir? 21 A The receipts that would show the address where I was living. 22 Q And did you understand that to mean only utility bills? 23 A Yes, they just told me all of them. 24 them, not all of them. 25 Q What was your understanding of what you could -- what you Okay. They told me some of So the only thing you understood that you had to have Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 14 of 31413 1 were utility bills? 2 A The last three. 3 Q Okay. 4 requirements, other requirements in lieu of utility bills that 5 you could provide? 6 A Not exactly, no. 7 Q Okay. 8 and you have a CPA degree, I believe you said? 9 A Yes. So you never were explained by anyone the But you did graduate from a university in Tamaulipas, I finished my degree as an accountant in the 10 university, and I was a student, yes. 11 Q 12 high school education in Mexico City -- in Mexico, the country 13 of Mexico? 14 A Yes. 15 Q Sir, do you remember when you were first approached on 16 December 5th at your apartment? 17 A Yes. 18 Q What happened on December 5th? 19 happened? 20 A 21 don't recall if it was that day or the following day. 22 Q 23 You would agree, sir, that your education is higher than a Starting at Academy, what I arrived at the house with that, and the following day -- I Okay. MR. PONCE: I'm going to object, nonresponsive. I think 24 the question called for what happened on December the 5th, not 25 the day after. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 15 of 31414 1 THE COURT: Overruled. 2 BY MR. GAMEZ: 3 Q If you can, sir, on December 5th, did you go to Academy? 4 A Yes. 5 Q Would you agree, sir, that you needed an additional rifle 6 for your son Lalo? 7 A I don't recall. 8 Q Sir, would you agree with me that there were other Mr. Penas 9 there, brothers of Manuel Pena, and they also had sons and 10 needed an additional rifle? 11 A No. 12 Q Would you agree with me, sir, that you went on December 13 the 5th with Manuel, and Manuel was going to purchase a firearm 14 but that was part of a meeting and discussion that y'all had 15 that you were going to pay for that firearm, and it was going to 16 be a community firearm that belonged to Manuel Pena; and at the 17 ranch, everyone could use it, including your son? 18 19 THE INTERPRETER: Would you break up that question for me, Mr. Gamez, please. 20 MR. GAMEZ: Yes, I'm sorry. 21 BY MR. GAMEZ: 22 Q 23 rifle, payment of the rifle was payment for a contribution to a 24 lease, your contribution to a lease? 25 A Would you agree with me, sir, that your payment of that Yes. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 16 of 31415 1 Q And I don't mean to be disrespectful, sir. Do you disagree 2 that you would borrow money and you didn't have a job and you -- 3 sometimes you just couldn't pay it back? 4 A No. 5 Q That's fine, sir. 6 stated that: 7 when I get money from Mexico? 8 A I don't know what you're talking about. 9 Q Would you agree with me, sir, that that laser that you had Would you agree with me, sir, that you I can't pay any money now, but I'll pay my portion 10 that you talked about that was in your hand on the video was the 11 laser that also was lent to you by Manuel? 12 A Yes. 13 Q Just because you had it didn't mean that you owned it, did 14 it? 15 A Okay. 16 Q Because you didn't have that type of laser, did you? 17 A No. 18 Q Okay, sir. 19 you not? 20 A Yes. 21 Q And you stood right next to Manuel on the counter of 22 Academy? 23 A Yes. 24 Q Sir, were you hiding in Academy? 25 A No. You did go inside Academy on December 5th, did Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 17 of 31416 1 Q Were you disguised in any shape or form? 2 A No. 3 Q When you purchased the rifle, where was it? 4 A I already told you. 5 Q Was it on the floor? 6 the left of you, to the right of you? 7 A Walking around looking at articles. 8 Q My fault, sir. 9 the rifle that was picked and chosen on December 5th, 2011? Was it up on a gun rack? Was it to Maybe I didn't make myself clear. Where was 10 A In the case there. 11 Q Okay. 12 A Show case. 13 Q So in Academy you're standing in front of a counter, and the 14 rifles are pointing up and down, are they not? 15 A Yes. 16 Q Okay. 17 you, on the left of you, on the right of you? 18 A I don't recall. 19 Q Did you see the rifle and know that this is the one you 20 wanted? 21 A Yes. 22 Q Manuel picked the rifle for you, didn't he? 23 be true, sir? 24 A I don't recall. 25 Q If I can refresh your memory, is Manuel the one who said: Where was this rifle? Was it in the -- in front of In front. Wouldn't that No, no. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 18 of 31417 1 I'll look at that one, and pointed at it to the clerk? 2 MR. PONCE: Your Honor, I'm going to -- 3 THE COURT: I'm sorry. 4 translation is completed. 5 phrased by Mr. Gamez? 6 MR. PONCE: You don't have to wait until the The objection is to the question as Yes, Your Honor. In regards to the previous 7 question regarding whether he -- it was chosen or whether now 8 he's talking about the clerk, the defendant pointing out to the 9 clerk, which is an entirely different question from the previous 10 one. 11 THE COURT: The question: "Is Manuel the one who said: 12 I'll look at that one and pointed it out at the clerk?" 13 Overruled. 14 THE WITNESS: Yes. 15 BY MR. GAMEZ: 16 Q 17 Manuel asked for? 18 A Yes. 19 Q Now, you had not left yet, had you? And the clerk, did he bring that particular rifle that 20 THE INTERPRETER: I'm sorry? 21 BY MR. GAMEZ: 22 Q You had not left yet and walked around the store, had you? 23 A No. 24 Q You were -- at that time you were still right next to Manuel 25 while Manuel was looking at the rifle? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 19 of 31418 1 A Yes. 2 Q Okay. 3 pick the rifle up? 4 A Those are details that I don't recall. 5 Q Did you pick up the rifle and look at it? 6 A I did look at it, but I didn't lift it up. 7 Q Did it matter to you what he bought? 8 A We'd already said which one it was. 9 Q Did Manuel pick the rifle up? And I'm not trying to trick you, sir. You said yes. 10 at the rifle? 11 A I already knew which one it was. 12 Q You're going to buy a rifle. 13 Did Manuel Did you look Didn't you want to see it? THE COURT: Don't argue with the witness. 14 asked -- you asked the question; he's answered it. 15 BY MR. GAMEZ: 16 Q 17 rifle? 18 Did you buy a rifle for your son without ever touching that Is that what your testimony is? MR. PONCE: I'm going to object. 19 mischaracterization. 20 Pena buying it for him. 21 this witness. It was Manuel He's mischaracterizing the testimony of MR. GAMEZ: 23 that he bought it for him. 24 THE COURT: BY MR. GAMEZ: That's a He said he did not buy it. 22 25 He's already He's saying, Judge, that he paid for it and I will allow the question. Overruled. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 20 of 31419 1 Q Did you buy a rifle through Manuel Pena, is what you're 2 saying, without ever touching or holding the rifle? 3 what your testimony is? 4 A I got hold of it or took it up -- picked it up outside. 5 Q So is your answer yes? 6 A Yes. 7 Q Okay. 8 agents appear in your apartment? 9 A One day later. 10 Q Would that be December 6th, 2011? 11 A Yes. 12 Q Were you surprised to see them? 13 A Yes. 14 Q Were you relaxed? 15 A I was relaxed. 16 Q Okay. 17 were you not? 18 A Until they arrived. 19 Q Yes. 20 A Yes. 21 Q Did they go in your apartment? 22 A Yes. 23 Q Is that the same apartment address, Border Apartments, that 24 was on your driver's license? 25 A Yes. Is that Let's go to your apartment now on the -- when did the And that's what I understand. You were relaxed sir, Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 21 of 31420 1 Q Okay. And what did you discuss, if anything? 2 A They came in, checked the rifles, asked me to come with 3 them. 4 apartment about -- 5 Q Okay, sir. 6 A As far as who was the owner of the weapons. 7 Q Okay, sir. 8 A Who it was. 9 Q Okay, sir. I went with them. We talked a little there at the I'm still at the apartment. At the apartment, 10 what were you asked, if anything, at the apartment? 11 A 12 with a weapon. 13 Q Okay. 14 A They -- 15 Q Just to understand you, there was a what now about you being 16 outside? 17 A I didn't understand the question. 18 Q You were told that there was a complaint about you being 19 outside with a rifle? 20 A Yes. 21 Q Did that alarm you? 22 A Yes, yes. 23 Q And I understand, sir. 24 A Yes. 25 Q And you didn't mean anything bad by that, did you? That there had been a complaint concerning me being outside But it wasn't that. That concerned you, did it not? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 22 of 31421 1 A No. 2 Q Okay. 3 here for a complaint because we got some information that you 4 were pointing a rifle out there, outside? 5 A 6 inside the apartment. 7 Q Okay. 8 A No, that they were -- the only ones that were there were 9 mine. What did you answer them when they asked you: We're Well, the complaint had been that there were some weapons Then what did you tell them? 10 Q You told them all the weapons that were there were yours? 11 A Yes. 12 Q Okay. 13 tell them: 14 A 15 and where had I bought them and if I could accompany them to 16 their office. 17 Q Did you want to go to their office? 18 A Of course not. 19 Q Did you feel you had to go? 20 A They asked me to as agents. 21 Q And were you scared? 22 A Yes. 23 Q Did you feel you could tell them no? 24 A No. 25 Q So you felt you had to go? Then what happened? What did they tell you after you The weapons there are mine? If I could accompany them. And if I could accompany them Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 23 of 31422 1 A Yes. 2 Q Now, what were you scared of at that point, if you recall? 3 A Of everything perhaps. 4 Q I understand, sir. 5 A There were a lot of them. 6 Q And you were by yourself, sir? 7 A My wife and I. 8 Q Did you feel that if you didn't go, they would arrest you? 9 A I was already had -- in problems. 10 Q I'm sorry. 11 A I was already in problems or had problems. 12 Q You already had problems? 13 A I'm saying by the sole fact that they had arrived there. 14 Q Okay. 15 A For everything. 16 Q Why would your residency be a concern to you, sir? 17 A Everything. 18 Q That's very important to you, isn't it? 19 A As well, yes. 20 Q I understand, sir. 21 everything, I believe you said; am I correct? 22 A Yes. 23 Q Are your kids United States citizens? 24 A Yes. 25 Q So you -- they were born here? These men, do you know who they were? I didn't hear that, sir. Were you concerned about your residency at that time? So besides that, you were afraid of Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 24 of 31423 1 A Yes. 2 Q And your wife, sir? 3 A Yes. 4 Q So you're the only one with a card? 5 A Yes. 6 Q Okay. 7 like you had to go. 8 A To their offices, the FBI. 9 Q Do you know where that is, sir? 10 A Yes. 11 Q And where's that located, sir? 12 A Coffeeport. 13 Q Okay. 14 A They took me there. 15 Q Were you in the front seat, driver's seat, passenger back 16 seat? 17 A Passenger. 18 Q You don't remember? 19 A No. 20 Q You don't remember the -- 21 A No, in the back seat passenger. 22 Q You were in the back, weren't you, with one guy on each side 23 of you? 24 A 25 to remember. Now, sir, when you left with them, you said you felt Where did you go? How did you get there? I don't recall. It's -- I don't recall. It's something that I don't choose Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 25 of 31424 1 Q You were scared at that time, real scared, weren't you, sir? 2 A Yes. 3 Q What did you think might happen to you? 4 A Arrest me, the residency as well. 5 thought -- I don't recall. 6 worried, I don't recall. 7 Q 8 getting off at FBI, and you're very afraid about your residency 9 and being arrested. I understand, sir. 10 THE COURT: I don't know. I I was -- between the fact that I was So now you're in the car. You're Is that a question? 11 BY MR. GAMEZ: 12 Q Would that be correct, sir? 13 A That wasn't the only thing. 14 Q What other things were bothering you, sir? 15 A Mainly my family. 16 Q That you may not see them; am I correct? 17 A I was embarrassed and upset about the circumstances. 18 Q Okay, sir. 19 A Yes. 20 Q How many people were with you when you went into the FBI's 21 office? 22 A 23 in the office: 24 Q Where did they take you, sir? 25 A To a table like that. Did you go into the FBI's office? At the apartment, 10 or 12 arrived. I don't recall exactly 10, 12, 8. Inside where, what room? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 26 of 31425 1 Q Did they offer you water, something to drink, something to 2 eat? 3 A Yes. 4 Q What time was it when you got to the FBI's office in your 5 opinion, sir? 6 A 7:00. 7 Q 7:00 p.m.? 8 A Yes. 9 Q Do you remember what time you left the FBI's office? 10 A 11:00. 11 Q So you were there some four or five hours? 12 A It seemed to me like it was months. 13 Q I understand, sir. 14 ten guys, you say, or you believe or five or six. 15 asked questions? 16 A Yes. 17 Q Were they questions about the December 5th purchase of a 18 firearm? 19 A Yes. 20 Q Did they tell you that they saw you in the store? 21 A Yes. 22 Q Did they tell you they saw you next to Manuel Pena at the 23 counter? 24 A Yes, yes. 25 Q Did they tell you they saw you outside in the parking lot? I don't recall. It might have been 11:00 or 12:00. Now, you're sitting there. You got some Were you Were you asked questions, sir? Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 27 of 31426 1 A Yes. 2 Q So if someone would say: 3 counter, was the -- I'll withdraw the question. 4 Okay, sir. I didn't see him, Sergio, at the Then what did you tell them, if anything? 5 A I already mentioned it. I don't recall exactly. 6 Q Okay. 7 A Yes. 8 Q One guy start asking you questions in Spanish? 9 A Yes. 10 Q And another guy that left asked in English, asked you one 11 question, another question in Spanish? 12 A Yes, all that happened. 13 Q Then another guy on the other side will ask the guy that's 14 translating Spanish to ask you another question in Spanish, and 15 you had to answer? 16 A No. 17 Q All that happened or didn't happen? 18 A That happened. 19 Q Okay. 20 through one interpreter? 21 A 22 same time. 23 Q 24 position you were in? 25 A Did they start interrogating you? All of that happened. So you had a bunch of people asking you questions I don't recall. There were several that were asking at the Now, what was going through your mind, sir, about your I already told you. Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 28 of 31427 1 Q The same things? You were scared about the same things? 2 A Yes. 3 Q Okay. 4 best interest for you to cooperate with us? 5 A Yes. 6 Q What did you understand that to mean? 7 A That nothing was going to happen to me or to my family. 8 Q I understand, sir. 9 happen to you or your family? Now, at one time were you told: It will be in your What do you mean nothing was going to What did you understand that to 10 mean? 11 us. 12 A That I was going to be okay. 13 Q Okay. 14 he? 15 A No. 16 Q So he couldn't have made any representations to you, the 17 person to my left, on that night, did he? 18 A 19 know if the agents would have checked with him at that time. 20 don't know. 21 Q 22 23 24 25 It would be in your best interest if you cooperate with What do you mean, nothing would happen to me and my family? Now, the person to my left, he wasn't there now, was I don't know if -- I don't know. I don't know. I don't I Okay. THE COURT: All right. I'm going to recess at this time until 8:30 tomorrow morning. But ladies and gentlemen of the jury, during this overnight recess, you are under my continuing admonishment that you must Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 29 of 31428 1 not form or express any opinion about the facts of this case and 2 cannot do so until it has been submitted to you for your 3 deliberation. 4 (Jury leaves courtroom) 5 6 Thank you. THE COURT: All right. Thank you, sir. You may step down. Counsel, if there's going to be any issues 7 regarding any exhibits for tomorrow, I -- you're to be here at 8 8:00 to resolve it. 9 Now, Mr. Ponce, I have not yet heard whatever excerpts you 10 have. I'll be glad to do so right now, just cut everybody loose 11 that doesn't have to be here so I can see what you're talking 12 about as far as whether they're audible or intelligible. 13 MR. PONCE: Yes, Your Honor. 14 THE COURT: So we're in recess. 15 MR. PONCE: I have the courtesy copy for the Court. 16 THE COURT: Okay. 17 18 19 20 21 22 23 24 25 So why don't you play it right now. Thank you, Barbara. COURT REPORTER: Thank you. Thank you. (Court adjourned.) * * * (End of requested transcript) Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 30 of 31429 1 2 3 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 4 5 Date: January 16, 2013 6 7 /s/________________________ Signature of Court Reporter Barbara Barnard 8 9 10 I N D E X 11 JURY TRIAL 12 AUGUST 15, 2012 13 Closed hearing 14 15 18 GOVERNMENT'S WITNESSES: ALBERT TORRIZ MICHAEL DEANS SERGIO GONZALEZ 19 Name 21 DEANS, MICHAEL GONZALEZ, SERGIO TORRIZ, ALBERT 23 24 25 DIR CROSS 237 274 329 249 290 379 RDIR RCRS V/DIRE ALPHABETICAL INDEX 20 22 343 CHRONOLOGICAL INDEX 16 17 PAGE Page 274 329 237 Case 1:12-cr-00472 Document 103-4 Filed in TXSD on 01/22/13 Page 31 of 31430 1 DEFENDANT'S EXHIBITS 2 NO. 3 3 4 5 6 7 8 9 10 11 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DESCRIPTION Photo Photo Photo Photo Photo Photo Photo Photo Photo OFFRD ADMTD 403 403 403 403 403 403 403 404 404 404 404 404 404 404 404 404 404 404 W/DRAW Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 1 of 41 431 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 JURY TRIAL BEFORE THE HONORABLE HILDA G. TAGLE AUGUST 16, 2012 8 9 VOLUME 4 APPEARANCES: 10 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: 15 MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 16 Brownsville, Texas 11 12 13 14 78520 17 18 19 20 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General District Order of 94-15, United States District Court, Southern Texas. 21 22 23 24 25 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 2 of 41 432 1 2 THE COURT: Good morning. Please be seated. At this time the Court calls again for announcements Cause 3 No. 12-CR-472, the United States of America versus Manuel 4 Eduardo Pena. 5 6 What says the government? MR. PONCE: government. Karen Betancourt and Oscar Ponce for the Ready. 7 THE COURT: What says the defendant? 8 MR. GAMEZ: Ernesto Gamez, Junior, present and ready. 9 THE COURT: All right. Let me ask, I've been informed 10 that there is an exhibit or series of exhibits that you're going 11 to be asking the Court to admit, but there's an objection to 12 one, so let me see what they are and what the basis is for the 13 objection, the relevance and the government's objection. 14 Mr. Gamez? 15 MR. GAMEZ: My client provided me when Mr. Sergio 16 testified that he had only been there once or twice. 17 least six or seven or eight photographs, but I'd only like to 18 introduce A, B and C. 19 different dates, different clothes, different nights that Sergio 20 and his kids, both kids have gone, Chiquin, and I believe the 21 little one Lalo, Judge. 22 THE COURT: That should not be a surprise. All right. I have at Shows What don't you tell me what the 23 evidence would be as to, for example, Exhibit A, who -- who it 24 is in the picture that you want to have to cross-examine the 25 witness about. I'm showing it to you now. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 3 of 41 433 1 2 MR. GAMEZ: Exhibit A, Judge, is Chiquin, who's in the background, who's the son that was -- 3 THE COURT: 4 THE DEFENDANT: 5 MR. GAMEZ: 6 THE DEFENDANT: 7 Background. White shirt? This person here? He's the one in the back. I can't hear you either. He's in the back. He's the oldest one, the one that's in the picture holding the rifle. 8 THE COURT: No, I'm asking in this picture who is -- 9 THE DEFENDANT: 10 MR. GAMEZ: 11 THE DEFENDANT: Both of his sons are there. Sergio Gonzalez's sons. Sergio Gonzalez's son Lalo, and the one 12 he refers to as Chiquin or Sergio, Junior, is in the background 13 also. 14 THE COURT: Okay. Why don't you tag them -- here. 15 this with -- that points out who it is in the picture. 16 talking about Defendant's Exhibit A for -- that's my first 17 inquiry, only my first inquiry. 18 19 20 21 THE COURT: Okay. For B, why don't you mark what it is or who it is that you want to have the witness testify about. (So done.) THE COURT: 23 COURT CLERK: 25 I'm (So done.) 22 24 Tag And for C -These are all his nephews, all the brothers. THE COURT: Okay. Mr. Gamez, may I have your attention, Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 4 of 41 434 1 please? Mr. Gamez? In this photograph, what would be -- for 2 your -- let me ask -- 3 MR. GAMEZ: Yes, Judge. 4 THE COURT: -- what would be your reason for having the 5 Court -- the witness cross-examined on Photograph C, Exhibit C? 6 MR. GAMEZ: Photograph C, Judge, would show that all the 7 other kids of his brothers would go. 8 reasons, Your Honor, that Sergio's kids would go also. 9 were all friends and buddies and had a great time. 10 11 THE COURT: Let me ask you. MR. GAMEZ: Manuel Pena's brothers. 13 Sergio as their guest. 14 family. THE COURT: Sergio was always considered part of the Tell your client he shouldn't address the Court unless he's going to be testifying. 17 confer with him off the record and then tell me. 19 20 21 22 23 Whose brothers? They would take 16 18 They When you say "his," there are about six men who have been mentioned here. 12 15 And that's one of the If you can just Again, who are these in C? MR. GAMEZ: Those are the kids that -- all nephews of Manuel Pena, the defendant. THE COURT: And why would he know on what occasion this was taken? MR. GAMEZ: That occasion was taken on the season of 24 deer leases of the two years that he alleges that he went or 25 participated, only in two years. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 5 of 41 435 1 THE COURT: Okay. Who would be the one who could 2 testify -- who would testify as to -- I mean, the pictures, when 3 it was taken and whether it fairly depicts the people and the 4 location? 5 MR. GAMEZ: The individual who would testify as to that 6 photograph could be any of his -- Manuel Pena's brothers that 7 would state that depicts that -- that would -- portion depict 8 and know that it was taken during a deer season hunt and that 9 they were there and he -- he can identify each and every one. 10 There's been no material or substantial changes on that 11 photograph. 12 THE COURT: Date, who would testify? 13 MR. GAMEZ: Either Manuel or one of his brothers. 14 THE COURT: Will they testify about a date? 16 MR. GAMEZ: About what, Judge? 17 THE COURT: Date. 18 MR. GAMEZ: Oh. 19 THE COURT: In other words, you've given me three 15 20 21 In other words -- pictures. Who can testify as to what date they were taken? MR. GAMEZ: If I am -- cannot tell the Court that they 22 can say what specific date they were taken. 23 "Do you know the date," other than do you know the photographs? 24 Do you know where it was taken? 25 photographs? And they said yes. I did not ask them, Do you know who's in the Manuel said yes. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 6 of 41 436 1 THE COURT: Okay. Can you tell me, if the witness were 2 to -- if I were to admit these exhibits, what would you have the 3 witness do with these photographs to verify, yes, these are -- 4 are people who are hunting on one occasion or several occasions? 5 MR. GAMEZ: Multiple occasions. 6 THE COURT: Okay. 7 Mr. Ponce, your objection? 8 9 That's -- okay. MR. PONCE: My objection is to relevancy, Your Honor. Witness has testified that he has gone hunting, that his 10 children have gone hunting at that hunting lease with the 11 defendant and his brothers. 12 that this will prejudice the jury. 13 sympathy. 14 This is irrelevant. We believe It's an attempt to elicit We have no dates on when these were taken. Mr. Gamez refers to several -- two hunting seasons. We 15 don't know if this was either the hunting season before. 16 don't know if it was one occasion, several different dates with 17 perhaps a change of clothes and that's why people appear in 18 different clothing. 19 We Was it one trip or several different trips? I also -- and I'll -- I believe that as the testimony was 20 yesterday, there's a hunting season that begins in October, 21 November and ends in January. 22 witness has gone in two seasons, then that would have been 2010 23 to 2011. 24 the next season, which is the most recent season, we're talking 25 October, November of 2011 to January of 2012 after this Well, if he has gone -- the And my -- up to January of 2011. And then for 2000 -- Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 7 of 41 437 1 incident. 2 been asked, but my understanding is that even after these events 3 in particular, the ones in December, that he had gone with -- to 4 that lease in January. 5 although I don't recall if that was elicited through Mr. Gamez. 6 And my understanding, although the witness hasn't That's what I recall him telling me, But the point is that these photographs have nothing to do 7 with the straw purchase, nothing to do with what this witness is 8 here to testify on. 9 will simply confuse the jury. 10 11 THE COURT: And we believe that they're irrelevant and The objection is overruled. The exhibits will be admitted. 12 MR. GAMEZ: Your Honor, for impeachment, Judge. X, Y 13 and Z, those photographs were taken. They're on Facebook, 14 Judge. 15 knowledge, he believes they were taken this past season, hunting 16 season, being November 2011 to November -- excuse me, January 17 2012. 18 once." Manuel Pena believes they were taken -- best of his I believe the testimony was of Sergio, "I only went 19 The Court will see that in one -- some photographs he has a 20 mustache, Sergio, and in other photographs, he has no mustache, 21 which shows multiple times from December to January that he 22 appeared, Judge. 23 THE COURT: I don't recognize anybody, but -- 24 MR. GAMEZ: Sergio is the one standing -- 25 THE COURT: Mr. Gamez, I allow you to tell me what you Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 8 of 41 438 1 want. 2 like to be able to express my concern without being cut off. 3 4 5 I'm telling you what I -- what my concern is, but I'd MR. GAMEZ: Your idea is a good one, Judge, as far as putting these, and I forgot to put them on. THE COURT: Okay. Defendant's Exhibit Z, I can -- it 6 seems to me that I recognize this person on the far left as 7 being the witness you're talking about; is that right? 8 MR. GAMEZ: Yes, Your Honor. 9 THE COURT: And Y, would that be the witness I'm 10 11 12 pointing to? MR. GAMEZ: The one in the orange shirt, Judge, would be Sergio Gonzalez. 13 THE COURT: Okay. And would this be him? 14 MR. GAMEZ: Yes, Judge. 15 THE COURT: Okay. And so who -- in this Exhibit Y, 16 who's going to testify as to when, what year or period of time 17 it was taken? 18 MR. GAMEZ: Either Manuel Pena, Judge, or any of his 19 brothers recognize the contents therein of when it was taken, on 20 or about. 21 THE COURT: Okay. Then you're going to have to offer 22 them through them. 23 cross-examining of this witness, until and unless you can have 24 someone testify as to the year or at least a season for whatever 25 purpose you might want to argue to the jury, then that witness So your offer at this time for purpose of Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 9 of 41 439 1 is going to have to be the one to -- be the one that you offer 2 them through, not this witness. 3 MR. GAMEZ: Yes, Judge. 4 THE COURT: All right. 5 6 All right. Thank you. Then any other housekeeping matters from the government? 7 MR. PONCE: At this point, no, Your Honor. 8 THE COURT: I'm sorry? 9 MR. PONCE: At this point, no, Your Honor. 10 THE COURT: Mr. Gamez, before I bring in the jury? 11 MR. GAMEZ: I have no other matters. 12 THE COURT: All right. 13 (Jury enters courtroom) 14 THE COURT: 15 16 Good morning. Please be seated. If you'd have the witness come in and take the stand, please. 17 18 Then please bring in the jury. Good morning, sir. And let me remind you to please speak into the microphone so that your voice is amplified. 19 THE WITNESS: 20 THE COURT: Okay. Mr. Gamez? CROSS-EXAMINATION (Continued.) 21 22 BY MR. GAMEZ: 23 Q Good morning. 24 A Good morning. 25 Q I believe -- I believe yesterday we left off at you being at Good morning, sir. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 10 of 41 440 1 the FBI's office. 2 A Yes. 3 Q I was asking you if you remembered who was there. 4 remember who was there? 5 A Some. 6 Q Can you tell me who their names were or what their names 7 are? 8 A Yes. 9 Q Who were they? 10 A Mr. Shaun. 11 Q Who's Mr. Shaun? 12 A Yes. 13 Q Would that be the individual in the light brown coat? 14 A Yes. 15 Q Thank you, sir. 16 A The agent Albert Castillo. 17 last name. 18 person -- another person that was there, Castillo. 19 Q Yes, sir. 20 A Mike, Raul. 21 Q So there were at least six people there? 22 A There were more. 23 24 25 Do you remember? Do you Of some of them, yes. Do you see him? Who else? Castillo? No, Albert. I don't recall the The fourth person there, another I don't recall the others. THE INTERPRETER: I'm sorry, Your Honor. Could you ask him to move just a little bit back from the microphone, please? THE COURT: Yes, sir. Move back a little bit. We need Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 11 of 41 441 1 to hear your voice, but you have to also be at the right 2 distance. 3 THE WITNESS: Okay. 4 BY MR. GAMEZ: 5 Q 6 that room? 7 A Yes. 8 Q Did they explain the range of punishment to you in that room 9 for the alleged offense that you allegedly took place in? Were you explained what was alleged against you, sir, in 10 A I don't know if they told me what range. 11 Q Were you informed that you could go to jail? 12 A Yes. 13 Q Did they inform you that you could lose your residency? 14 A Yes. 15 Q Did this concern you? 16 A All of it. 17 Q And did you realize for certain in that room that you may be 18 in trouble? 19 A Yes. 20 Q Did you want any of those things to happen? 21 A No, of course not. 22 Q You wanted to stay in the State of Texas. 23 fair to say? 24 A Of course. 25 Q You didn't want to go to jail either, did you? Would that be Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 12 of 41 442 1 A Of course not. 2 Q So you realize it was in your best interests to cooperate 3 with them? 4 A Yes. 5 Q And did you understand that if you didn't cooperate with 6 them, that you may go to jail and lose your residency? 7 A Yes. 8 Q So when you were asked, did -- were you asked did Manuel 9 Pena buy this rifle for you -- 10 A Yes. 11 Q -- did you tell them that the rifle was for everyone in the 12 ranch first? 13 A I don't recall. 14 Q Sir, that rifle, would it be fair to say that everyone could 15 use that rifle in the ranch, not just you or your sons? 16 rifle -- 17 THE COURT: Okay. Excuse me. The Your question assumes 18 that the rifle got to the -- what you would believe would be the 19 ultimate destination. 20 MR. GAMEZ: You may ask him what the intention was. Yes, Judge. 21 BY MR. GAMEZ: 22 Q 23 purchase of the rifle on December 5th and the intention -- at 24 December 5th, 2011, was for the rifle to be used by anyone in 25 the camp, deer lease, relating to the Penas or yourselves? Did you ever tell the officers what the intention of the Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 13 of 41 443 1 A All of them that were there could have used it, but we 2 didn't talk about that. 3 Q Okay. 4 A Yes. 5 Q Did you tell them that it's my rifle, and I don't have to 6 let anyone use it if I don't want to? 7 A No. 8 Q In fact, sir, as you stated, anyone could use that rifle 9 purchased on December 5th, 2011, if they asked for it, to use You told them that Manuel bought it for me then? 10 it? 11 A Yes. 12 Q Okay, sir. 13 United States citizen? 14 A Yes. 15 Q Did you tell them that if you needed a rifle and you 16 couldn't buy a rifle because you say -- I believe you testified 17 that you didn't have any utility bills. 18 Well, my wife could buy the rifle if I wanted a rifle? 19 A No. 20 Q Would it be a fact, sir, that the reason you didn't have 21 your -- why is it -- let me ask you this, please. 22 Now, did you tell them that your wife was a But did you tell them: Why is it that you simply didn't ask your wife: 23 know what? 24 a rifle? 25 A Honey, you Since the utility bill is in your name, let's go buy My case was the contrary. Her driver's license did not have Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 14 of 41 444 1 the address where we were. 2 Q 3 had the residency card, but you didn't have the utility bills? 4 A That's correct. 5 Q But she's a United States citizen, I believe you testified. 6 A Yes. 7 Q And are you saying they would have denied her the right to 8 purchase a firearm? But you had the address on your driver's license, and you 9 THE COURT: Is that what you said? Excuse me. He cannot speculate as to what 10 somebody else might have done. 11 believed, but not what somebody else would have done. 12 BY MR. GAMEZ: 13 Q Okay. 14 Why do you believe -- THE COURT: 15 he believe. 16 BY MR. GAMEZ: 17 Q 18 citizen. Excuse me. Don't ask why. Ask him what did Did -- what did you -- why -- your wife is a United States 19 20 You can ask him what he You did not ask her to purchase a firearm for you. MR. PONCE: Your Honor, I'm going to object. statement by counsel or question? 21 MR. GAMEZ: Would that be correct? 22 THE COURT: I'm sorry, I can't hear Mr. Gamez. 23 I can't hear you either. 24 25 Is that a MR. PONCE: stated. Objection, Your Honor. Making a statement. No question is Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 15 of 41 445 1 THE COURT: Ask a question. 2 BY MR. GAMEZ: 3 Q 4 that your wife could not purchase a firearm? 5 A 6 situation -- in my case. 7 was not the same address where we were living at the time. 8 Q 9 after you left The Border Apartments? Why did you believe -- what did you believe the reason was It was a contrary -- the situation was contrary in my On her driver's license, the address Did she also change her address on her driver's license soon 10 A I haven't asked her. 11 Q Okay, sir. 12 believe you stated or testified that you were there some four or 13 five hours. 14 agents? 15 So you're back -- we're back in the room. What other questions were you asked, if any, by the THE COURT: Too general. Be specific. 16 BY MR. GAMEZ: 17 Q 18 another firearm? 19 A Yes. 20 Q Okay. 21 could have been used -- the first rifle purchased on 22 December 5th could have been used by anyone. 23 I Were you asked to have Manuel, by the agents, purchase And you've already testified that the first rifle Now, this rifle that you were -- the second rifle, when did 24 you first ask Manuel or any of the brothers about purchasing a 25 second rifle? Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 16 of 41 446 1 A I don't recall. A few days prior. 2 Q Okay. 3 going -- do you remember -- do you know Louie Canales? 4 A No. 5 Q Do you know Manuel Pena, Junior? 6 A Yes. 7 Q Would you agree with me that Manuel Pena, Junior is the son 8 of Mr. Manuel Pena here? 9 A If I may help you or assist you. Do you remember The thing is I don't know them by their names. Well, I only 10 know them by the affectionate terms that they call them, Boy, or 11 the girls' names. 12 Q Do you know Roland Pena? 13 A Yes. 14 Q Would you agree with me that Roland Pena is the brother of 15 Manuel Pena? 16 A Yes. 17 Q Would you agree with me that you went to a party, a birthday 18 party in Manuel's house for Louie's birthday party and Manuel, 19 Junior's birthday party, a combined birthday party for both of 20 them? 21 A 22 on many occasions. 23 Q Truly I don't remember. Okay. I could have been. I was with them To help you, sir, do you -- do you remember -- 24 MR. GAMEZ: Yes, Judge? 25 THE COURT: I'm just listening. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 17 of 41 447 1 MR. GAMEZ: I thought I heard you. 2 BY MR. GAMEZ: 3 Q 4 2011 before purchasing the second firearm December 16th, going 5 to a birthday party of Manuel's son and Manuel's nephews? 6 A 7 was there. 8 Q 9 if I were to say -- ask you this question. Do you remember, sir, in December, with more specificity, in I don't recall if it was their birthday party, but perhaps I Okay. Would you have any reason to disagree with me, sir, Would you agree with 10 me that Louie, Manuel's nephew's birthday is December 12th and 11 Manuel, Junior's birthday is December 18th, and that's the party 12 that you went to? 13 A 14 me, well, I believe you. 15 Q 16 purchase a firearm, okay, through Manuel. 17 from the agents? 18 A Yes. 19 Q Okay. 20 December 18th come. 21 At that time do you remember telling all the brothers and 22 Manuel: 23 A No, I don't recall it. 24 Q Would you disagree with someone if they were to say that 25 that happened, that you asked -- as you were instructed on I'm not aware of their birth dates. Okay. This is important. That's December 6th. But if you tell them to December 6th you're asked to Do you recall that December 12th and then There's a birthday party at Manuel's house. Hey, we need another rifle for the camp? I don't recall. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 18 of 41 448 1 December 6th, that you ask the brothers of Manuel Pena and 2 Manuel Pena: 3 another rifle. 4 It's time that we get another rifle for the camp, We need it. MR. PONCE: Your Honor, I'm going to object. One, 5 that's compound question. 6 to -- it's, in a sense, argumentative with this witness, asking 7 him to speculate on what somebody else would, in fact, say. 8 That's not testimony at this point. 9 THE COURT: And two, he's asking this witness The question is, "Would you disagree?" 10 the question has to be: 11 would you disagree? 12 BY MR. GAMEZ: 13 Q But If the testimony were the following, If -- 14 THE COURT: You can't testify. 15 BY MR. GAMEZ: 16 Q 17 birthday party suggested the need for another rifle for that 18 camp, would you disagree with that? 19 A I don't recall. 20 Q Okay. 21 If the testimony were to be that you approached the brothers and 22 Manuel: 23 need another rifle for the camp. 24 Would you disagree with that? 25 If the testimony was the following, sir, that you at that And respectfully, sir, it's not whether you recall. Hey, gentlemen, it's time we buy another rifle. THE COURT: We We don't have enough rifles. Asked and answered. The witness does not Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 19 of 41 449 1 have to answer that question. 2 BY MR. GAMEZ: 3 Q 4 you: 5 another firearm? Do you remember a brother of Manuel and Manuel agreeing with Yes, we agree. We should all contribute to purchase 6 MR. PONCE: Objection, Your Honor. Asked and answered. 7 THE COURT: No, that's a different question. But you 8 have to phrase it, Mr. Gamez, "If the testimony were, do you 9 recall or do you disagree," something of that nature. 10 BY MR. GAMEZ: 11 Q 12 you know of Mr. Manuel Pena and Mr. Manuel Pena says: 13 agree with you. 14 and we all need to pitch in. 15 that? If the testimony was the following: 16 That the brothers that Yes, we We need to buy another firearm for the camp, MR. PONCE: 17 question. 18 agree or disagree. 19 THE COURT: 20 THE WITNESS: Would you agree or disagree with I'm going to object, Your Honor. Improper If he can't remember, then he's not in a position to I'll allow the question. Overruled. As far as the question goes, would you 21 repeat it again? 22 BY MR. GAMEZ: 23 Q 24 said: 25 in and buy another rifle for the ranch. Would you agree if there was testimony that the brothers We agree with you, Mr. Sergio Gonzalez. We'll all pitch Would you agree with Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 20 of 41 450 1 that statement made by someone else or disagree with that 2 statement or you don't remember? 3 A I don't recall. 4 Q Okay. 5 there at the party, and you know that you needed Manuel to buy 6 another firearm, do you not? 7 A Yes. 8 Q And you know that the week before, you had just been 9 instructed to get Manuel to buy another firearm. 10 Would that be correct? 11 12 But you do know that you're going there and you were THE COURT: Don't yell at the witness. I refuse to let you raise your voice. 13 MR. GAMEZ: 14 BY MR. GAMEZ: 15 Q All right. Would that be correct, sir? 16 THE COURT: You have to ask the question in a way that 17 is where your voice is not raised at the witness. 18 allow you to -- I will not 19 MR. GAMEZ: Yes. 20 THE COURT: I will not allow you to interrupt me either. 21 I will not allow you to intimidate the witness with a raised 22 voice. 23 MR. GAMEZ: Apologies, Judge. I speak too soft 24 sometimes, Judge, and I guess sometimes too loud. 25 BY MR. GAMEZ: I apologize. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 21 of 41 451 1 Q 2 another firearm, did you not? 3 A Yes. 4 Q Now, with that in mind, in your mind, do you remember now 5 that you had to accomplish that task? 6 A Yes. 7 Q Does that help you remember that you asked to buy another 8 firearm? 9 A Yes. 10 Q You had all the brothers there of Manuel and Manuel there at 11 the party. 12 A Yes. 13 Q So how did you ask? 14 Mr. Gonzalez, you knew you had to buy and get Manuel to buy Would that be correct or incorrect? THE COURT: 15 BY MR. GAMEZ: 16 Q 17 Be more specific. How did you ask what? How did you ask the group to buy a firearm? THE COURT: Assumes facts not in evidence. 18 BY MR. GAMEZ: 19 Q 20 buying a firearm? 21 A That I wanted to buy another one for my son. 22 Q Is that how you asked him? 23 How did you -- where -- how did you ask the question about THE INTERPRETER: 24 BY MR. GAMEZ: 25 Q I'm sorry, Mr. -- Is that how you asked the question? Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 22 of 41 452 1 A It wasn't -- the thing is it wasn't there when I asked for 2 it. 3 Q 4 December 6th meeting. 5 ask for the purchase of another firearm, the second 270 that was 6 purchased December the 16th. Okay. 7 8 MR. PONCE: THE COURT: I'm going to object. There's no testimony There was no evidence about a purchase on December 6th? 11 12 I thought your testimony was that you did about a purchase on December the 16th. 9 10 So you're in a barbecue right after the MR. PONCE: Your Honor. 13 16th. I thought I heard it -- I'm sorry, I thought I heard 16th. THE COURT: Do you want to change your question? 14 BY MR. GAMEZ: 15 Q 16 firearm on December the 17 A Yes, I do recall it. 18 Q And you recall being at the FBI's office on December 6th? 19 A Yes. 20 Q So the next time you get to meet with all the Penas was at 21 this birthday party. Do you recall the purchase of a firearm on -- the second 22 THE COURT: -- is it 19th or 16th? Is there a question? 23 BY MR. GAMEZ: 24 Q Would that be correct? 25 A Yes. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 23 of 41 453 1 Q So would you agree with me this was the first opportunity 2 you had to then ask for the purchase of a firearm, an additional 3 firearm? 4 A No. 5 Q Okay. 6 was purchased December 5th was for your son? 7 A Yes. 8 Q And the second firearm that you purchased, you said that was 9 also for your son? So is it your testimony that the first firearm that 10 A For the other son. 11 Q And how old are your sons? 12 A 20 and 15. 13 Q So back then they would have been -- back then in the deer 14 lease on or about December 2011, how old would they have been? 15 A 14 and 19. 16 Q Sir, do you remember if -- if there was testimony that a 17 Roland Pena, the brother of Manuel Pena, gave you 60, $70 for 18 the portion of the second firearm? 19 MR. PONCE: Your Honor, I'm going to object. He asks if 20 he remembers that there was testimony. 21 the rule and outside the courtroom, so he would not have heard 22 any testimony. 23 THE COURT: 24 BY MR. GAMEZ: 25 Q This individual is under Sustained. If the testimony would be that Roland Pena, the brother of Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 24 of 41 454 1 Manuel Pena, gave you some 60 or $70 for Manuel to purchase a 2 second firearm for the ranch, would you agree or disagree with 3 that? 4 A Would you repeat that question? 5 Q If the testimony would be that a brother of Manuel Pena, 6 Roland Pena, at that party gave you 60 or $70 for the purchase 7 of the second firearm as his portion of the rifle that Manuel 8 was going to buy, and it's Manuel's for the use of the ranch 9 that -- would you agree or disagree that you were given that 10 money by Roland Pena? 11 A 12 participation, their cooperation for the ranch, the lease, yes. 13 Q 14 that rifle? 15 A No. 16 Q Sir, do you recall the blind that you said you brought 17 across from Mexico yesterday? 18 A Yes. 19 Q Mr. Gonzalez, I believe you testified that you said that 20 blind was made in Mexico and you brought it across. 21 A Yes. 22 Q If there was testimony that each brother of Manuel Pena and 23 Manuel Pena split the cost for that blind, would you agree or 24 disagree with that testimony? 25 A Not specifically. Thank you, sir. At one time they did talk about their Do you remember Roland giving you $60 for Other things were added, yes. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 25 of 41 455 1 Q So you would agree that the Penas split the costs for that 2 blind? 3 A Yes. 4 Q Would you also agree with me, sir, that you're the 5 individual that says: 6 A Yes. 7 Q Would you agree with me, sir, that you quoted the Penas a 8 bill of -- an amount of $600? 9 A Yes. 10 Q Would you agree with me, sir, that you showed them no 11 receipts? 12 A Yes. 13 Q And the Penas split that cost, did they not? 14 A I don't recall. 15 Q Didn't you -- do you remember yesterday where you testified 16 that you put in the $600 for the blind? 17 A Yes. 18 Q But isn't it a fact that you con -- what you did is you 19 simply brought the blind over and didn't pay anything for that 20 blind; the Penas did? 21 A 22 gave us the wood, which the same was -- was sent to Matamoros. 23 We crossed it to Matamoros so that the blind could be made. 24 When I brought the blind over here, it still needed to be 25 painted and the rug. I can get it made in Matamoros cheaper? You just said it cost $600? Yesterday I said this, and it was like this. Common friend And that's what they also did, or they Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 26 of 41 456 1 finished it, yes. 2 Q So this individual gave you the wood? 3 A Yes. 4 Q Then how did the blind cost $600 and tell the Penas that the 5 blind cost $600? 6 A 7 exchange that he receive another blind, and I paid for that as 8 well. 9 Q Just the work. The person who gave us the wood and asked in So the Penas paid nothing for the blind? You paid 10 everything? 11 A The work to make the blind, yes. 12 Q Someone charged you $600 for labor to build one blind. 13 that your testimony? 14 15 MR. PONCE: The rest they did. I'm going to object. Is He's being argumentative with the witness. 16 THE COURT: 17 THE WITNESS: I'll allow it. Go ahead. Yes. 18 BY MR. GAMEZ: 19 Q And you thought that was a good deal for the Penas? 20 A I offered, but they never -- they never asked me for 21 anything. 22 Q 23 son? 24 A Junior. 25 Q The second rifle that was purchased, your testimony is it The first rifle purchased December 5th, it was for which Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 27 of 41 457 1 was for which son? 2 A Lalo. 3 Q How old is Lalo again? 4 A 15. 5 Q Sir, were you behind in your contributions to the ranch in 6 the -- excuse me, the lease? 7 THE COURT: Excuse me just a second. Mr. Gamez, 8 assuming facts not in evidence. There's been no testimony as to 9 what arrangements there were and what his share would be and how 10 it was recovered and so that -- to base your question on whether 11 he was behind. 12 BY MR. GAMEZ: 13 Q 14 being part of the lease and being the guest and both your boys, 15 were some of the regulations that you pay your portion of the 16 expenses of the lease? Sir, were the regulations of being part of the lease, you 17 MR. PONCE: Objection, Your Honor. Compound question. 18 First that he's part of the lease or as a guest of the lease and 19 then -- 20 THE COURT: Sustained. 21 MR. GAMEZ: May I see the photographs, Judge, that are 22 in evidence? 23 THE COURT: 24 BY MR. GAMEZ: 25 Q Yes. I'll show you Defendant's Exhibit B. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 28 of 41 458 1 THE COURT: Show it on the ELMO. 2 BY MR. GAMEZ: 3 Q Do you recognize the individuals on Defendant's Exhibit B? 4 A Yes. 5 Q Who's the person there? 6 A My son. 7 Q The next person? 8 A I think he's Rafa's son. 9 Q Okay. 10 A I think as well. 11 Q And this little fellow here in Exhibit B, Defendant's 12 Exhibit B? 13 A Jorgito, I think. 14 Q Okay. 15 A Hunting. 16 Q Okay. 17 A Yes, at the lease, deer lease. 18 Q And you've been there? 19 A Yes. 20 Q Okay. 21 clothes? 22 A I did. 23 Q Sure you did, right? 24 25 This little fellow here? And what kind of clothes are they dressed in? And do you know where this is at? The outfit worn by your son, who bought those THE COURT: BY MR. GAMEZ: He's already answered the question. Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 29 of 41 459 1 Q And you purchased those clothes to prepare your son to go to 2 the ranch. 3 A Yes. 4 Q Looking at Defendant's Exhibit C, do you recognize this 5 person right over here? 6 A Yes. 7 Q Are your sons there? 8 A No. 9 Q Do you recognize this individual here? 10 A Yes. 11 Q And the other one in the middle? 12 A Yes. 13 Q Would it be fair to say that you recognize the children in 14 this photograph, Defendant's Exhibit C? 15 A Yes. 16 Q And they all -- would they all play with your sons? 17 A Yes. 18 Q And what's on the table? 19 they're BB guns? 20 A (No response.) 21 Q Let's look at Defendant's Exhibit A. 22 right here? 23 A Me. 24 Q Who's the person right there? 25 A My son. Would that be fair to say? Would you agree with me that Who's this person Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 30 of 41 460 1 Q Who's this person right there? 2 A My other son. 3 Q Do you see what your son is wearing here in Defendant's 4 Exhibit A, Lalo? 5 A Yes. 6 Q And it's different clothing than your son Lalo is wearing on 7 Defendant's Exhibit B? 8 A Perhaps, yes. 9 Q And were -- all these pictures, do you know where they're 10 at? 11 A Yes. 12 Q That being Defendant's Exhibit A, B and C. 13 A What? 14 defendant. 15 Q 16 ranch? 17 ranch and your sons. 18 A Yes. 19 Q And the fact that your son is wearing one outfit on one 20 particular night, Defendant's Exhibit B, and wearing another 21 outfit, Defendant's Exhibit A, would suggest that they were 22 different nights because he's wearing different clothes. 23 you not agree? 24 25 Yes. You were referring to Exhibits A, B and C from the I don't know what you're referring to. Do you recognize Defendant's Exhibit A as being in the You recognize Defendant's Exhibit B as being in the MR. PONCE: And Defendant's Exhibit C, do you agree -- I'm going to object, Your Honor. Would I think he's already testified that it's perhaps different clothes. He Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 31 of 41 461 1 wasn't certain about that. 2 THE COURT: 3 THE WITNESS: I'll allow it. Yes. 4 BY MR. GAMEZ: 5 Q 6 at least six times this past season? 7 A Sir, would you agree that you and your son went to the ranch No. 8 MR. GAMEZ: 9 Excuse me, Judge. Pass the witness at this time, Judge. 10 THE COURT: 11 Mr. Ponce? REDIRECT EXAMINATION 12 BY MR. PONCE: 13 Q 14 agents showed up at your apartment on December the 6th, you 15 turned over all your rifles to them? 16 A Yes. 17 Q And that included the two rifles that you owned before? 18 A Yes. 19 Q I'm going to show you Exhibit No. 10. 20 rifles you owned before? 21 A Yes. 22 Q This is what caliber? 23 A .22. 24 Q So that -- is that the Mossberg? 25 A Yes. Now, sir, when the -- just so we can be clear, when the That was one of the Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 32 of 41 462 1 Q And No. 11 is which one? 2 A 30 06. 3 Q The 30-06? 4 A Yes. 5 Q And that is the C -- the JCP weapon, correct? 6 A Yes. 7 Q Okay. 8 in charge of this lease? 9 A (No response.) 10 Q Let me ask you -- 11 A I did say it before. 12 say it before. 13 Q 14 ring a bell? 15 A Willie Serrata. 16 Q Who is Willie Serrata? 17 A Something like that, Willie Serrata. 18 Q Who is Willie Serrata? 19 A The person in charge of the ranch. 20 Q When you say in charge of the ranch, what does that mean? 21 What do you mean, in charge of the ranch? 22 A 23 charge of the people who could go to the ranch. 24 Q 25 oversee that? Okay. Let's talk about the ranch or the deer lease. Who is Do you know the name of the person? Right now I don't recall, but I did Does the name Willie -- well, does the name Willie He was the one that sold -- he administrated or was in So people could go in there and hunt; in other words, would Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 33 of 41 463 1 A Yes. 2 Q So he would be in charge then of the -- of the people who 3 actually would lease during the hunting season? 4 A Yes. 5 Q Now, were you -- were you part of this -- of the lease, or 6 were you an individual who just happened to be invited to visit 7 and hunt? 8 A (No response.) 9 Q Well, let me ask it this -- well, I'm sorry. If you were 10 ready to answer, I don't know. 11 it clear. 12 A Yes. 13 Q Were you a person who had rights under that lease, or were 14 you a -- a person that was invited to go hunting? 15 A Just invited. 16 Q Do you know who would actually pay Willie for the yearly 17 lease rental amount? 18 A Yes. 19 Q Who would pay Willie? 20 A Manuel Pena. 21 Q Do you know how much he would pay for this lease to Willie? 22 If you know. 23 A 24 know exactly. 25 Q I don't know exactly. Let me retract that just to make Around a thousand dollars. Sir, you testified that you didn't have a job. You I don't Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 34 of 41 464 1 testified to that yesterday. 2 A Yes. 3 Q Now, let me ask you, the medical equipment business, are you 4 involved in that, in a business like that? 5 A 6 equipment to Mexico. 7 Q So it's seasonal? 8 A No. 9 Q I'm sorry. Yes. Do you remember that? It's not every -- it's not permanent. I sell I don't have to work every day. In other words, you don't -- The -- so you don't work 8:00 to 5:00 Monday 10 through Friday, correct? 11 A That's correct. 12 Q So you're essentially self employed selling what? 13 A Medical equipment. 14 Q Such as? 15 A Hospital medical equipment: 16 lights for the surgery, surgery tables, defibrillator, x-ray 17 machine. 18 Q You are in the business of selling that to whom? 19 A Mexico. 20 Q And you've been doing that since when more or less? 21 A Two years. 22 Q You were shown these photos yesterday. 23 Defendant's Exhibit No. 3? 24 A Yes. 25 Q Is this the blind that you obtained from Mexico? Beds, anesthesia, lamps or Customers in Mexico. Do you see this, Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 35 of 41 465 1 A Yes. 2 Q No. 4. 3 see that? 4 A Yes. 5 Q What is that? 6 A The same thing. 7 Q It's the same blind? 8 A Yes. 9 Q And what is Defense Exhibit No. 5? 10 A That's another blind that I'm right now realizing that it's 11 not the same as the other. 12 Q 13 No. 5? 14 A I don't think so. 15 Q Do you ever remember seeing it there at the deer lease? 16 A There were a lot of them. 17 Q So when you said that -- that the -- some money was then 18 used to -- to add to the blinds, what -- what were you referring 19 to? 20 A Painting, the rug, the installation, but -- 21 Q What else? 22 A That's all I can recall at the time. 23 Q How were you able to get this blind from Matamoros over to 24 the -- to the U.S.? 25 or what? I'm going to show you Defense Exhibit No. 4. Do you So this -- you had nothing to do with this one right here, Was it in pieces, or was it fully assembled Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 36 of 41 466 1 A I do want to recall something. The base was made here. 2 Just the house on the top, it was made in Matamoros. 3 brought it over in my trailer. 4 Q Did it come already with the shingles? 5 A Yes. 6 Q So this is the area you said that had to be obtained in 7 order to complete it? 8 A Yes. 9 Q And the paint? 10 A Yes. 11 Q What else is inside the blind? 12 A The windows, the rug, the benches. 13 Q Did you-all add the windows and the benches and the 14 carpeting? 15 A The windows and the benches already came with it. 16 Q You mentioned that the first rifle that -- that Manuel Pena 17 bought for you was the rifle for Junior; is that correct? 18 A Yes. 19 Q That's Chiquin? 20 A Yes. 21 Q When you said that the second rifle was going to be for 22 Lalo, your other son, that's -- he's also known as Lalito? 23 A Yes. 24 Q Did you ever make any payments to Willie or to Manuel Pena 25 for the deer lease? And I Chiquin Chiquin? Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 37 of 41 467 1 A No. 2 MR. PONCE: Your Honor, may I use the board? 3 THE COURT: Yes. 4 MR. PONCE: Your Honor, can I move it there where they 5 can see it? 6 7 THE COURT: so put it in a way that it's going to be visible. 8 9 Yes, but the jury has to be able to see it, So, Mr. Gamez, if you wish to move so you can view whatever it's going to be used for, please do. 10 MR. PONCE: May I approach the board, Your Honor? 11 THE COURT: Yes. 12 BY MR. PONCE: 13 Q 14 going to be asking you some questions about -- about those 15 dates, okay? 16 A Okay. 17 Q Sir, do you see what I've drawn up here? 18 what I've drawn, and then I'm going to ask you questions about 19 these dates. 20 Sir, I'm going to put some dates here to -- and then I'm Let me tell you The 12/5 over there represents the first purchase. 21 A Okay. 22 Q The 12/19 over here on the far right represents the second 23 purchase. 24 A Okay. 25 Q And in between we have 12/6 when the agents -- the date that Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 38 of 41 468 1 the agents go to your apartment. 2 A Yes. 3 Q And we have 12/18 where there was some birthday party for -- 4 for Manuel Pena's son. 5 A Okay. 6 MR. GAMEZ: I would object to that, Judge, as just -- I 7 don't believe the fact is in evidence that it was on the 18th. 8 I think it was somewhere in between the 6th and 13th, 14th. 9 believe, Judge, I heard that. 10 11 THE COURT: Do you want to put a specific date to it or leave it generally? 12 13 All right. I MR. PONCE: I understood it to be the 18th, the day before the second purchase, Your Honor. 14 THE COURT: Well, just put a date. 15 MR. PONCE: I'll ask the witness about that. 16 THE COURT: Okay. 17 BY MR. PONCE: 18 Q Did you understand what I wrote here? 19 A Yes. 20 Q Now, you were asked by Mr. Gamez if -- if the day of the 21 party, whether it was the 18th or the 16th, that that was the 22 first opportunity that you had to ask Manuel Pena for -- to have 23 him purchase a firearm for you. 24 25 MR. GAMEZ: BY MR. PONCE: Your Honor -- Do you remember that? Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 39 of 41 469 1 Q Did Mr. Gamez ask you that? 2 THE COURT: There's an objection. 3 MR. GAMEZ: Respectfully, Judge, I don't believe I ever 4 stated -- respectfully, Judge, I never said the 16th or 18th, 5 Judge. Way a week before or sometime. 6 THE COURT: Okay. 7 MR. GAMEZ: Yes, Judge. 8 THE COURT: Okay. 9 You can't testify, Mr. Gamez. My objection is -- Mr. Ponce, pose the question in a way that uses events rather than exact dates. 10 MR. PONCE: Okay. 11 BY MR. PONCE: 12 Q 13 to when asked questions by Mr. Gamez. Let me ask this. I want to ask you about what you testified 14 Now, do you recall his question to you about when it was 15 that you had the first opportunity to ask Manuel Pena to buy the 16 firearm for you? 17 A Yes. 18 Q Do you remember that? 19 A Yes. 20 Q Okay. 21 party. 22 A Yes. 23 Q Now, so my question is, was that the very -- at that party, 24 was that the very first -- the very first time you had talked to 25 Manuel Pena about purchasing a rifle for you? And that question was in relation to some birthday Do you recall that? Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 40 of 41 470 1 MR. PONCE: May I approach the board, Your Honor? 2 THE COURT: Yes. 3 BY MR. PONCE: 4 Q 5 over here, December the 6th, 7th and 8th? 6 A It was the 6th. 7 Q December the 6th was the first time you asked if he was 8 willing to buy a weapon from you -- I mean for you? 9 A Yes. 10 Q The first time, did you tell him at that time why is it you 11 needed to buy a second -- why you needed to have him buy a 12 second weapon? 13 A Yes. 14 Q What did you tell him? 15 A Would you repeat the question? 16 Q What did you tell Manuel Pena about why you needed a second 17 weapon if you had just bought -- if you had just gotten the 18 first one? 19 A For my other son, Lalo. 20 Q The one known as Lolito or Lalito? 21 A Yes. 22 23 24 25 Or had you already talked to him sometime in these dates THE COURT: break right now. All right. Mr. Ponce, I'm going to take a It's almost 10:00. Members of the jury, at this time you will be in recess for 20 minutes. During this recess, you are still under my Case 1:12-cr-00472 Document 105 Filed in TXSD on 01/22/13 Page 41 of 41 471 1 admonishment not to form or express any opinion about the facts 2 of this case and cannot do so until it has been submitted to you 3 for your deliberation. 4 Thank you. (Jury leaves courtroom) 5 THE COURT: Thank you. Please be seated. 6 We're in recess. 7 (Recess taken from 9:59 to 10:34.) 8 9 10 THE COURT: All right. Thank you. Please be seated. Mr. Ponce, you indicated that there was some exhibit or some audio tapes you wanted to offer? 11 MR. PONCE: Yes, Your Honor, with this -- with this 12 witness. This witness has heard our -- well, on numerous 13 occasions and even just right -- even a few minutes before, so 14 he can testify to that, No. 29. 15 Court didn't hear yesterday. No. 29 is the one that the 16 THE COURT: All right. 17 MR. PONCE: Yes, Your Honor. 18 THE COURT: And there being an objection to the offer, 19 20 21 22 23 24 25 It's 29A, B and C? I'll hear -- let me see how audible it is, if it is. MR. PONCE: Does the Court have the courtesy copy of the transcript? THE COURT: I do. (Tapes playing.) MR. PONCE: Your Honor, on this last one, I don't know if I noticed a typo here for the first -- for the first time Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 1 of 41 472 1 here on page 1. 2 didn't hear it correctly, but I'd ask to doublecheck that one. 3 I don't know if the Court caught that. Maybe I But the others, I would submit to the Court, as well as the 4 recordings are at least clear enough for -- for the jury to 5 hear. 6 This witness has -- is prepared to testify that -- that he 7 has -- that he is the individual that is on the -- on the 8 recording and that he is talking to the defendant. 9 voice there is the defendant, and that he has heard this The other 10 particular exhibit and can identify those individuals and the 11 substance of the conversation held. 12 THE COURT: Mr. Gamez, in response? 13 MR. GAMEZ: Judge, we have no objections as to 29C, the 14 15 recording. That would be 29C. 29A, Judge, as the Court has ruled before as to audioability 16 or inaudioability or unintelligible or inintelligible 17 conversation, 29A. 18 THE COURT: Overruled. 19 MR. PONCE: Your Honor, the -- I would -- once I We object to 29B as well, Judge. 29A and B are admitted. 20 doublecheck No. 29C shortly -- well, if given an opportunity, I 21 probably will have an opportunity at lunch, I would like to have 22 an opportunity to just doublecheck that one line. 23 THE COURT: If the witness' testimony is completed, I'm 24 not going to recess -- I'm not going to leave the witness on the 25 stand just so you can do that. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 2 of 41 473 1 But the other thing is, it seems to me, my understanding is 2 that if it's a push to talk, then he's not the only one who can 3 testify about what was said by him or the other person, anyone 4 who was there overhearing the conversation, if they say that 5 they did -- I mean, somebody else can testify about that 6 substance. 7 MR. PONCE: Yes, Your Honor. My intent was actually -- 8 well, the way things developed, I was going to do it through 9 him, this witness here. But my intent initially was to do it 10 through the next witness coming and the one after that. 11 end up doing that. 12 THE COURT: 13 14 Okay. Go ahead then. I may If we're ready to go, then please bring in the jury. It's already 10:43. I was told this was going to be a 15 two-day trial. 16 and the defendant has about maybe eight or nine witnesses, just 17 ask that you not preface the questions with stuff that is 18 unnecessary or information that's not necessary. 19 20 Just -- and since you still have three witnesses (Jury enters courtroom) THE COURT: Thank you. Please be seated. 21 Can we have the witness come forward, take his place? 22 Sir, have a seat in the witness chair again, please. 23 You may proceed. 24 MR. PONCE: Your Honor, may I approach the board? 25 THE COURT: Yes. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 3 of 41 474 1 BY MR. PONCE: 2 Q Sir, we're going pick up where we left off, okay? 3 A Okay. 4 Q December the 6th was when agents went to your apartment. 5 We'll pick it up at that point, okay? 6 A Okay. 7 Q On this date, December the 6th, did you -- did you talk 8 to -- to Pena about seeing if he was willing to purchase a rifle 9 for you? 10 A Yes. 11 Q The 12th and the 7th, the 8th and some days after that, did 12 you continue having conversations with him regarding the 13 purchase of the rifle for your son? 14 A Yes. 15 Q How about on the -- on the 19th? 16 before going into Academy, did you receive a call from Pena 17 regarding meeting at the Academy? 18 A Yes, we did talk about that. 19 Q Now, did -- on this one, did you call him, or he called you? 20 A Both. 21 Q Now, sir, at least some of those -- some of that contact 22 was -- was, in fact, recorded; is that correct? 23 A Yes. 24 Q You've had an opportunity to listen to what we have for the 25 record labeled Government Exhibit No. 29? On the 19th before -- Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 4 of 41 475 1 A Yes. 2 Q And those deal with the calls 6th, 7th or so? 3 A Yes. 4 MR. PONCE: Your Honor, at this time I'd ask that we be 5 allowed to play what we have marked as No. 29, which show the 6 exhibit which is 29A. 7 call in Spanish, but been translated to English. The exhibit 29A is the transcript of that 8 THE COURT: All right. 9 MR. PONCE: Yes, Your Honor, only. 10 THE COURT: All right. 11 29A only right now? Go ahead. (Tape playing.) 12 BY MR. PONCE: 13 Q 14 transcript, if we can move up just a little bit. 15 I don't know if you can see it on your screen. 16 Let me show you here, ask you a question here about this This is 29A. Can you? The indication here, MP, and the initials also SG are who? 17 A Manuel Pena and Sergio Gonzalez. 18 Q Okay. 19 conversation between who and who? 20 A Between he and I. 21 Q Okay. 22 to the fourth line here where it says: 23 Lolet -- Lolito is very persistent with the" -- and then 24 something about Chiquin. 25 And the conversation that we just heard is a And I want to just direct your attention real quick "Listen, no, well, Now, there's some inaudible part in there. But in this Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 5 of 41 476 1 entire conversation, what are you asking him to do, or what did 2 you talk to him about? 3 A The purchase. 4 Q This is the second rifle, the one that was going to be for 5 Lolito or Lalito or Lalo? 6 A Yes. 7 Q So why -- why do you mention here something about Chiquin? 8 What were you telling him about Chiquin? 9 A For him to buy another rifle similar to that of Chiquin's. 10 Q Did you -- did you tell him that you already had the money 11 or that you were going to get the money? 12 A That they were going to pay an account of mine, and I was -- 13 Q An account? 14 the money for it, or did you not have the money for it? 15 A Yes. 16 Q Yes, what? 17 A I did have it. 18 Q Okay. 19 second rifle? 20 A Not exactly, no. 21 Q Well, is that the money you got from the agents later? 22 A Yes. 23 Q In this conversation that -- that we're talking about, did 24 Manuel Pena agree that he would go ahead and buy that rifle for 25 you? The purchase of the rifle. I'm sorry, I didn't catch that. Did you have You were going to pay it with your own money, this Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 6 of 41 477 1 A Yes. 2 Q Can we play -- that was a conversation of December the 6th; 3 is that correct? 4 A Yes. 5 Q Can we play or show the transcript 29B? 6 Play the audio. (Tape playing.) 7 BY MR. PONCE: 8 Q 9 Mr. Manuel Pena? Sir, the individuals that are on that recording are you and 10 A Yes. 11 Q And is this another occasion when you discuss with Mr. Pena 12 about the purchase of the rifle? 13 A Yes. 14 Q And that's the rifle that's for your son? 15 A Yes. 16 Q This is No. 29. 17 coming here today? 18 A Yes. 19 Q I think I'm just about done. 20 question. This is what you previously heard prior to Let me just ask you one other 21 Can we go back to the regular screen? 22 I'm going to show you Government Exhibit No. 12, the 23 purchase of the rifle on December the 5th. Do you see that? 24 A Yes. 25 Q This is the original -- the original receipt, correct? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 7 of 41 478 1 A Yes. 2 Q But in the back there is a notation here. 3 that writing there? 4 A Yes. 5 Q And what does it -- what does it say there? 6 A Pistola Chiquin, name of Meme. 7 Meme. 8 Q Whose writing? 9 A I think it's my wife's. 10 Q Let me just ask you, because I don't remember if I did this 11 yesterday. 12 for you on December the 6th and December the 19th of last year, 13 is he in this courtroom? 14 A Yes. 15 Q Could you please tell me where he's seated? 16 A To your right wearing a black coat. 17 18 Do you recognize Pistol Chiquin, name of The person that bought the weapon for you, the rifle MR. PONCE: Your Honor, for the record, he has identified the defendant, Mr. Manuel Eduardo Pena. 19 THE COURT: The record will so reflect. 20 MR. PONCE: Pass at this time. 21 THE COURT: Mr. Gamez? 22 RECROSS-EXAMINATION 23 BY MR. GAMEZ: 24 Q 25 6th and the 7th, do you recall now and then soon thereafter Okay, sir. Listening to those tapes that were made on the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 8 of 41 479 1 going to this party that we're talking about of two birthdays 2 somewhere around the 13th or 14th of December prior to that 3 18th or 19th date? 4 party a little better? 5 A Yes. 6 Q Okay. 7 and son, was that the first time you got to meet with all the 8 Penas in that party after you made these phone calls to Manuel 9 made on the 6th and the 7th of December, 2011? Do you now remember this joint birthday Now, on that joint birthday party of Manuel's nephew 10 A Yes. 11 Q Looking at Government's Exhibit 29A where it says SG, you 12 understand that to mean Sergio Gonzalez? 13 A Yes. 14 Q You understand that on the right side is an interpretation 15 of what you have said in Spanish? 16 A Yes. 17 Q And you understand that you're asking for a 243 rifle? 18 A Yes. 19 Q Do you recall when I asked you why a 270 rifle was purchased 20 on December the 19th, 2011? 21 A Yes. 22 Q Do you remember saying, "It's because I wanted the same type 23 of rifle"? 24 A Yes. 25 Q Isn't it a fact what you're requesting on this tape is a 243 Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 9 of 41 480 1 rifle and not a 270 rifle? 2 A Yes, yes. 3 Q Okay. 4 that that's a smaller rifle, caliber rifle than a 270 caliber 5 rifle, deer rifle? 6 A Yes. 7 Q Okay. 8 conversation again about a purchase of a rifle. 9 correct? So you're asking for a 243 rifle. Would you agree So when you met at the party, you brought up the Would that be 10 A I don't recall. 11 Q And wouldn't it be correct to say that you were told by the 12 entire family: 13 Perhaps, yes. No, we're not going to buy a 243 rifle? THE COURT: Excuse me. You don't have -- you cannot ask 14 a question about what an entire group did or said rather. 15 you want to pose the question, you have to ask him whether one 16 or more people said what they -- what their opinion was, but not 17 as a chorus, which is what your question seems to imply. 18 BY MR. GAMEZ: 19 Q 20 discussion was had regarding a purchase of a second rifle? 21 If Were the entire brothers of Manuel Pena present when a THE COURT: Okay. He's already said -- in answer to 22 your question, "You brought up the conversation again, would 23 that be correct?" 24 "I don't recall, perhaps, yes." 25 Your question assumes that he recalls the conversation. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 10 of 41481 1 BY MR. GAMEZ: 2 Q 3 purchase of a second firearm that you were requested by DEA to 4 make with Manuel Pena? 5 A Yes. 6 Q Okay. 7 Pena did not buy a 243 firearm as you'd requested on December 8 the 19th, did he? 9 A No. 10 Q In fact, Mr. Pena bought a 270 firearm instead, didn't he? Do you recall the conversation, Mr. Gonzalez, regarding the 11 You did not buy a 243 firearm -- excuse me. THE COURT: Okay. Manuel That's been asked and answered. 12 BY MR. GAMEZ: 13 Q 14 you had requested for your son, did you? So in your tape recording, you did not get the firearm that 15 THE COURT: Asked and answered. 16 BY MR. GAMEZ: 17 Q 18 Mr. Pena that he would not buy a 243 firearm for your son? 19 A No. 20 Q Then if you know, why didn't he buy the firearm that you had 21 requested? 22 A It was changed for one that was 270. 23 Q Did Mr. Pena change that? 24 A It was an agreement. 25 Q You just -- you agreed with that? Mr. Pena -- excuse me, Mr. Gonzalez, were you told by Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 11 of 41482 1 A Yes. 2 Q Did Mr. Pena tell you: 3 for -- 243 for your son, but I'll buy another 270 for the ranch, 4 and it belongs to me and the ranch? 5 A I don't recall. 6 Q Did -- do you recall now after listening to the tapes that 7 some -- some of the brothers giving you money at that birthday 8 party of the two sons of the Penas for that contribution of the 9 270? Look, I'm not buying a firearm 10 A No. 11 Q But you were given $400 by agents to purchase that rifle? 12 A Yes. 13 Q If you would have remembered that you'd received money for 14 that rifle from the Penas, would you have returned that money to 15 the Penas? 16 17 MR. PONCE: I'm going to object, Your Honor. He's asking this witness to speculate. 18 THE COURT: Sustained. 19 BY MR. GAMEZ: 20 Q 21 contribution or cost to be a member of the lease was some 22 $1,000. 23 Sir, you said the -- or testified that the expense or Would that be correct? MR. PONCE: I'm going to object to mischaracterizing the 24 evidence. The testimony was that he remembers Mr. Pena paying 25 about a thousand dollars, not that it was each member of the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 12 of 41483 1 lease. 2 THE COURT: Be more specific, Mr. Gamez. Are you 3 talking about a thousand dollars per person, a thousand dollars 4 for the entire season, for any number of people? 5 BY MR. GAMEZ: 6 Q Sir, did you know that each -- 7 THE COURT: No, don't tell him. 8 if it was the evidence. 9 BY MR. GAMEZ: Don't testify. Ask him If this were the evidence. 10 Q If this were the evidence, Mr. Gonzalez, would you have any 11 reason to disbelieve that the payment to be a member of that 12 lease was $975? 13 A I never was aware of that. 14 Q Okay. 15 975, they were entitled to bring a guest? 16 Were you aware of the fact that if the members paid THE COURT: Excuse me. You have to ask it, "If it were 17 the evidence, do you know, would you know, happen to know." 18 BY MR. GAMEZ: 19 Q 20 bring a guest, did you know that? 21 A Yes. 22 Q And are you aware of how you were invited -- excuse me. 23 it were the evidence that they were allowed to bring a guest, 24 that is the members who paid 975, would you not agree that 25 that's how you got to be on the ranch? If it were the evidence that the members of the ranch could If Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 13 of 41484 1 A If you would repeat the question to me. 2 Q You were always invited to the ranch as a guest. 3 be correct? 4 A Yes. 5 Q You would be -- would it be correct to say sometimes you 6 were a guest of Manuel Pena? 7 A Yes. 8 Q And sometimes you were a guest of the other brother? 9 A Yes. 10 Q Or another brother? 11 A Yes. 12 THE COURT: Excuse me, Mr. Gamez. Would that Of what line of 13 questioning is this a follow-up on; that is, a line of 14 questioning on redirect are you following up? 15 MR. GAMEZ: On the $1,000, Judge. 16 THE COURT: I'm trying to find on direct -- I mean 17 redirect the testimony that you're referring to. 18 19 MR. GAMEZ: on the lease was $1,000. 20 21 THE COURT: 24 25 I'm asking about redirect, not what was brought out on direct. 22 23 Sergio testified, Judge, that what was paid MR. GAMEZ: That was brought up on redirect, Judge, I THE COURT: I'm not going to allow any further believe. questions. You can only recross on anything that was brought Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 14 of 41485 1 out on redirect. 2 BY MR. GAMEZ: 3 Q 4 rifle for you, and you answered yes? 5 A Yes. 6 Q Would you like to change your testimony and say that he 7 didn't buy that rifle for you, the 243, but he bought another 8 rifle? 9 You were asked by the prosecutor, Manuel agreed to buy that THE COURT: You're conflating to the question is what 10 did you ask for and what did he buy. 11 BY MR. GAMEZ: 12 Q 13 of what type of caliber of firearm? 14 A In the tape recording, it says 243. 15 Q Manuel Pena did not purchase a 243, did he? What did you ask for, Mr. Gonzalez, regarding the purchase 16 THE COURT: Asked and answered. 17 MR. GAMEZ: No further questions. 18 THE COURT: Mr. Ponce, any redirect? 19 MR. PONCE: Just on that point, Your Honor. 20 May I approach the witness, Your Honor? 21 THE COURT: For what purpose? 22 MR. PONCE: To allow him to see if this would refresh 23 his memory. 24 THE COURT: On what? 25 MR. PONCE: On that point regarding whether he told Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 15 of 41486 1 Mr. Pena to get a two -- ultimately told Mr. Pena to get a 243 2 or a 270. 3 THE COURT: All right. 4 Go ahead. REDIRECT EXAMINATION 5 BY MR. PONCE: 6 Q 7 we have marked as 25A. 8 to look at this page right here, just this small part right here 9 and ask you, after you read it, if it refreshes your memory on Sir, I'm going to show you for purposes of the record what Do you see that? I'm going to ask you 10 what you told Mr. Pena about whether you wanted the 243 or if 11 you wanted him to get the same kind of weapon as before, the 12 270. Just read it to yourself. 13 MR. GAMEZ: Your Honor, this is not part of direct 14 examination or the redirect examination. 15 25A. 16 THE COURT: Recross. Go ahead. 17 BY MR. PONCE: 18 Q Have you had a chance to read it? 19 A Yes. 20 Q Does this refresh your memory now? 21 A Yes. 22 Q So I ask you, at the time -- 23 MR. PONCE: May I proceed? 24 THE COURT: Yes. 25 BY MR. PONCE: We weren't discussing Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 16 of 41487 1 Q So I ask you, sir, ultimately did you tell him to get you a 2 270? 3 A Yes. 4 Q Why? 5 A So that there wouldn't be any difference or distinction 6 between the kids, the boys. 7 Q 8 270? 9 A So both boys would have the same kind of weapon, rifle, the Yes. 10 MR. PONCE: Nothing further. 11 THE COURT: All right. Mr. Gamez, my apologies. I did 12 go back and just verify, and he did testify about the amount 13 that a person named Willie was paid, so I'll allow you to 14 continue with that line of questioning, your question being a 15 series that you were bringing out on recross. 16 MR. GAMEZ: I understand, Judge. Go ahead. I'd like to ask a 17 question, but I'd like to approach the Court as to whether the 18 Court will allow this particular question. 19 THE COURT: Go ahead and ask it. 20 MR. GAMEZ: It deals with background, Judge, history. 21 THE COURT: All right. 22 MR. GAMEZ: It will take four seconds, Judge. 23 THE COURT: Well then, why don't you come over here. 24 25 (At the bench.) THE COURT: Go ahead. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 17 of 41488 1 MR. GAMEZ: Judge, I'm uncertain that my -- Pena tells 2 me that he was arrested and convicted for tampering with a 3 government record, a felony. 4 true. 5 I don't know if that's true or not I don't want to ask him and then you get upset on that. MR. PONCE: Well, he can ask about that, but I've 6 already told him about two incidents, and one may involve a 7 driver's license or insurance, something like that, where it 8 wasn't processed. 9 they don't even go to court. 10 He was just given not deferred, the -- where They don't charge them. They just do community service, and the charges never get filed. 11 MR. GAMEZ: He introduced false insurance to a judge. 12 THE COURT: Okay. 13 MR. PONCE: There's no conviction. 14 MR. GAMEZ: There's not a conviction. 15 THE COURT: Accusation doesn't come in. 16 MR. GAMEZ: I can't get it. 17 I mean, they're the only ones that know. 18 19 What's the conviction? THE COURT: Well, he's telling me that there's no conviction. 20 MR. GAMEZ: But would he show that to me, Judge? 22 THE COURT: How can he show you the negative? 23 MR. GAMEZ: He can show me that there's no conviction. 24 THE COURT: How can he show you a negative? 21 25 I mean -- negative. No conviction. That's a Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 18 of 41489 1 2 MR. GAMEZ: diversion? 3 4 Did he get deferred, or did he get pretrial MR. PONCE: It's just diversion. He did some kind of -- some kind of community deal, some community service. 5 THE COURT: Pretrial diversion or something? 6 MR. PONCE: Yeah. 7 MR. GAMEZ: That's what I want to ask him. 8 THE COURT: Pardon? 9 MR. GAMEZ: That's what I want to ask him. 10 MR. PONCE: Well, it's not a conviction, Your Honor. 11 MR. GAMEZ: So if it's not a conviction, then I won't THE COURT: No. 12 13 14 Nothing was filed. ask him. All right. Thank you. (Open court.) 15 MR. GAMEZ: I have nothing further, Judge. 16 THE COURT: All right. 17 MR. PONCE: I have nothing further, Your Honor. 18 THE COURT: You may step down. 19 Mr. Ponce? You're excused unless the parties request that he remain. 20 MR. PONCE: I would ask that he remain available. 21 THE COURT: All right, sir. 22 23 You must remain in attendance on the Court, but you do so outside. Call your next witness. 24 MR. PONCE: Shaun Owen, Your Honor. 25 THE COURT: Good morning, sir. Agent Shaun Owen. Please speak into the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 19 of 41490 1 microphone so that your voice is amplified. 2 THE WITNESS: Yes, Your Honor. 3 MR. PONCE: May I proceed, Your Honor? 4 THE COURT: Yes. 5 SHAUN OWEN, 6 the witness, having been previously duly cautioned and sworn to 7 tell the truth, the whole truth and nothing but the truth, 8 testified as follows: 9 DIRECT EXAMINATION 10 Q Sir, would you state your full name and how you're employed? 11 A Yes, sir. 12 as a special agent with the Federal Bureau of Investigation, 13 Brownsville Resident Agency. 14 Q How long have you been with the FBI, sir? 15 A I have been with the FBI approximately seven-and-a-half 16 years. 17 Q You said you were assigned to which office? 18 A Sir, I'm assigned to the Brownsville Resident Agency. 19 our satellite office in the Brownsville area. 20 Q So the main office is located in San Antonio? 21 A Yes, sir. 22 Q Sir, I'm going to be asking you a few quick questions. 23 quick questions, but I'm going to be asking you some questions 24 regarding the -- the case against Manuel Eduardo Pena. 25 familiar with that case? My full name is Shaun Owen. I'm -- I am employed It's Not Are you Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 20 of 41491 1 A Yes, sir, I am. 2 Q You are the designated case agent for that case? 3 A Yes, sir. 4 Q So you're familiar with the -- with the events that have led 5 up to us being here today? 6 A Yes, sir, I am. 7 Q Sir, I'm going to ask you about whether on December the 5th 8 you received a call from anyone regarding the -- regarding 9 Mr. Pena. 10 A Yes, sir, I received a telephone call regarding Mr. Pena. 11 Q When was that? 12 A It was later in the afternoon, approximately 4:00 or 13 5:00 p.m., possibly a bit later. 14 Q And that call came from whom, sir? 15 A That call came from Senior Special Agent Michael Deans with 16 ICE OPR. 17 Q 18 sir? 19 A 20 Protection officer had possibly been involved in a straw 21 purchase at the Academy Sporting Goods in Brownsville that day 22 and had given the weapon to another individual. 23 Q 24 you received that call? 25 A And that was -- the nature of that notification was what, Special Agent Deans notified me that a Customs and Border Had they located that second individual by that time when Yes, sir, they had. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 21 of 41492 1 Q And did you meet with Agent Deans or other agents regarding 2 that particular call to you and the report? 3 A No, sir, not that night. 4 Q But were you aware of what -- of what the agents were doing 5 that evening, if anything? 6 A Yes, sir, I was. 7 Q And to your knowledge, what was that? 8 A As it was explained to me by Agent Deans, members of ICE OPR 9 and the Rio Grande BEST team had met in the vicinity of The It was all done via telephone. 10 Border Apartments after establishing that the individual 11 Mr. Pena had given the rifle to was indeed living there and had 12 been seen there with the rifle on his balcony. 13 Q 14 going to be the next step as part of this investigation now that 15 you were undertaking? 16 A 17 individual who had been seen with the rifle had left his 18 apartment without the rifle, we decided to wait until the next 19 day to investigate any further. 20 Q Did you, in fact, do that? 21 A Yes, sir, we did. 22 Q And so that brings us to December the 6th. 23 December the 6th, sir? 24 A 25 afternoon, Special Agent Deans and I talk on the telephone, and At some point in time, did you and others decide what was Yes, sir. That evening we decided that because the What happens on Later in the afternoon, once again approximately 4:00 in the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 22 of 41493 1 we get together at the FBI office. And at that point we decide 2 that we want to approach the individual who was seen with the 3 weapon on the balcony at The Border Apartments. 4 Q You actually do that? 5 A Yes, sir, we did that afternoon. 6 Q With some other agents? 7 A Yes, sir. 8 Q And did you, in fact, find the individual who had that 9 weapon? 10 A Yes, sir, we did. 11 Q And who was that? 12 A The individual was identified as Sergio Gonzalez. 13 Q The individual that was here right before you testifying? 14 A Yes, sir. 15 Q And what did -- did you-all ask of him at the time you-all 16 showed up at his doorstep? 17 A 18 initially approached by Task Force Officer Albert Torriz and 19 another member of the Brownsville Police Department who knocked 20 on the door, engaged in conversation, and then gained consent to 21 enter his apartment. 22 Q 23 and -- and visit with him there? 24 A Yes, sir, I did. 25 Q What, if anything, did you ask of him? When we approached Mr. Gonzalez's apartment, he was Did you-all then -- did you actually go into his apartment Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 23 of 41494 1 A Most of the conversation was translated by TFO Torriz or 2 Special Agent Roy Castillo with ICE OPR. 3 through translation, asked if he had purchased a weapon that he 4 had been seen with the day before on his balcony. 5 Q 6 there in the first place? 7 A 8 Mr. Gonzalez had been seen on his balcony with a rifle. 9 know, not knowing what he was doing with the rifle gave But we, basically So what was the -- the premise as to why the officers were The premise was that there was a complaint because You 10 Brownsville PD enough of a suspicion to approach him at his 11 apartment. 12 Q 13 was a complaint just as a matter -- as a way to get you-all to 14 talk to him, correct? 15 A Yes, sir. 16 Q Now, there wasn't no such -- there's no such complaint, 17 right? 18 A No, sir. 19 Q And that's something you-all do when making different 20 approaches or in different operations or investigations, 21 correct? 22 A Yes, sir. 23 Q Okay. 24 you? 25 A By the premise, I mean that's what he was told, that there We told him there was. Once you were there, did he produce any rifles for Yes, sir. He produced various rifles of different calibers, Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 24 of 41495 1 all that he said belonged to him. 2 Q 3 just show them to you real quick so you can testify to them. 4 No. 10 is what, sir? 5 A 6 No. is 702. 7 Q And the 11? 8 A 11, according to Mr. Gonzalez, was a custom made JCP rifle. 9 I don't believe we were able to find a serial number on it when And, of course, you've seen these -- these exhibits. It is a Mossberg .22 caliber Plinkster. I'll I believe the model 10 we checked. 11 Q 12 correct? 13 A Yes, sir. 14 Q Did he also produce the weapon that you-all were interested 15 in? 16 A Yes, sir, he did. 17 Q Did you -- where was that weapon within the apartment when 18 you-all were there? 19 A 20 couch, I believe in a soft backed camouflage case. 21 Q 22 apartment? 23 A 24 was visible, and you could see the case. 25 Q Okay. Now, these were weapons that he had before; is that The weapon of interest was in plain view lying against the Could you see it there when you-all were within the Yes, sir. Right as you walked into the apartment, the couch Did he talk to you-all there briefly about how he happened Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 25 of 41496 1 to -- to obtain this rifle? And I'm talking about the 2 Remington. 3 A Yes, sir, he did for a few minutes. 4 Q Did he tell you who had bought it for him? 5 A Yes, sir. 6 Meme. 7 Q 8 Gonzalez, determined that Meme -- did he tell you that Meme was 9 Manuel Pena? He mentioned a friend of his by the nickname of And you've later, after talking further to -- to Sergio 10 A Yes, sir, he did. 11 Q Now, did you-all tell him to give you that name of Meme, or 12 did he tell you that it was a friend of his called Meme? 13 A 14 the weapon had been purchased for him and asked for details 15 about that, and that's when he volunteered the nickname of Meme. 16 Q But he said friend? 17 A Yes, he said his friend Meme. 18 Q Did later give you the full name? 19 A Yes, sir, he later identified him. 20 Q And did he agree with you, with you-all to go to the FBI 21 offices to give you more information? 22 A Yes, sir, he voluntarily came with us. 23 Q Was he then cooperating with you-all at that point? 24 A Yes, sir, he was cooperating. 25 Q The weapons that he turned over to you, of course, included We did not give him that name. We told him that we believed Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 26 of 41497 1 the Remington, correct? 2 A Yes, sir. 3 Q The one that had been purchased the day before? 4 A Yes, sir. 5 Q I'm going to show you Government Exhibit No. 7. 6 know if you can see it there on your screen, but you should. 7 A 8 That's -- 9 Q Well, first of all, tell me, what is No. 7? 10 A Exhibit 7 is the -- one of the ends of the box with the 11 Remington label on it. 12 the contents of the box for a Remington model 770 with scope, 13 270 caliber weapon with magazine, containing Serial No. M as in 14 Mike 71729803. 15 Q 16 I correct? 17 A Yes, that was the box associated with the weapon. 18 Q Okay. 19 Exhibit No. 8? 20 A 21 matched what was printed on the box. 22 Q 23 on the weapon? 24 A Yes, sir, we did. 25 Q I'm going to show you Exhibit No. 9. Yes, sir. I can't fully see the serial number. I don't Okay. It's a -- looks like the description of And contained within that box, was, in fact, the weapon; am Let me show you No. -- Exhibit No. 8. What is Exhibit 8 is the Remington 770 with the serial number that Did you, in fact, take a closeup photo of the serial number What is that? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 27 of 41498 1 A Sir, that's a closeup photograph of the Remington 770 to 2 include the serial number. 3 Q 4 M71729803? 5 A Yes, sir. 6 Q That matched the box in the previous -- shown in the 7 previous exhibit, Exhibit 7? 8 A Yes, sir. 9 Q And did you bring that box here for purposes of trial? 10 A Yes, sir. Is that the serial number that you mentioned before, the It's one of the two boxes by the podium. 11 MR. PONCE: May I approach the witness, Your Honor? 12 THE COURT: Yes. 13 BY MR. PONCE: 14 Q 15 if this is the box that -- that that Remington rifle came in. 16 A Yes, sir, this is the box associated with that weapon. 17 Q In fact, the photograph is a photograph of this -- of this 18 end of the box; is that correct? 19 A Yes, sir. 20 Q That we've seen earlier? 21 I'm going to show you Government Exhibit No. 16 and ask you That evening -- well, how long were you at his apartment 22 before y'all left? 23 A 24 45 minutes, maybe a little bit less. 25 Q Sir, I would say we were at his apartment for approximately And, of course, you said you got some rifles. Did you also Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 28 of 41499 1 ask for the -- for the receipt? 2 A Sir, for the receipt of the other rifles? 3 Q No, I'm talking about the receipt for the Remington, the 4 Remington 770. 5 A 6 Remington. 7 Q Was that receipt, in fact, produced? 8 A Yes, sir, it was. 9 Q I'm going to show you No. 12. 10 A No. 12 is the receipt from Academy Sports and Outdoors in 11 Brownsville for the purchase of the Remington 770, 270 caliber 12 on December 5th, 2011, with the matching serial number Mike 13 71729803. 14 Q 15 back. 16 A No, sir, we did not. 17 Q At the very top, the back part of it. 18 received it? 19 A Yes, sir. 20 Q Do you know who wrote that? 21 A According to Mr. Gonzalez, that was written by his wife 22 prior to her giving it to us. 23 Q But you got this on December the 6th as is? 24 A Yes, sir. 25 Q You-all go to the -- to the FBI offices, and then what, sir? Yes, sir, we asked Mr. Gonzalez for the receipt of the What is No. 12? And the -- this particular receipt has some writing in the Did you-all write that? Is that how you Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 29 of 41500 1 A We get to the office at approximately just after 6:00 p.m. 2 We offer Mr. Gonzalez some water, and then four agents and 3 Mr. Gonzalez go into our conference room at the FBI and begin to 4 conduct an interview. 5 Q 6 a -- in a room? 7 A No, sir, it wasn't. 8 Q The -- did he continue giving you details about the purchase 9 of that weapon by Mr. Pena? So it wasn't 10 or 12 agents sitting, you know, with him in 10 A Yes, sir, he did. 11 Q At some point in time, was he asked if he was willing to 12 cooperate in furthering the investigation? 13 A 14 to cooperate. 15 Q 16 the investigation on the purchase of this rifle? 17 A 18 find out what had happened the day prior. 19 Q 20 that evening. 21 A Yes, sir. 22 Q Okay. 23 that? 24 A Yes, sir, he was fully cooperative at that time. 25 Q So my question then is at that time, what, if anything, do Yes, sir. He was asked, and answered that he would continue Did you-all ask him to do anything in regards to continuing At that point, we did not, sir. Okay. We were mainly trying to Well, my question is at some point in time during Later on we did ask him to assist us. And that is the point where he's still agreeable to Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 30 of 41501 1 you ask him to do for purposes of furthering the investigation? 2 A 3 telephone call to Mr. Pena regarding a second purchase of an 4 identical weapon, the Remington Model 770, 270 caliber. 5 Q 6 instructions on making that call or engaging in that 7 conversation with Manuel Pena? 8 A 9 similar to the one from December the 5th in that he was buying a We ask Mr. Gonzalez to make a consensually monitored And did you-all give him some -- at least some basic Yes, sir. We asked him to keep a possible scenario very 10 weapon for his other son. Since he had already purchased one or 11 Mr. Pena had already purchased one for his one son, we decided 12 to see if Mr. Pena would buy a second weapon for Mr. Gonzalez's 13 other son. 14 Q So that's the premise of this -- of this call? 15 A Yes, sir. 16 Q Did Sergio Gonzalez, in fact, cooperate and place that call? 17 A Yes, sir, he made that telephone call. 18 Q Is that the call that we heard just a few moments ago and 19 identified as the call being made on December the 6th? 20 A Yes, sir, that's the same call. 21 Q So that was December the 6th in the evening? 22 A Yes, sir. 23 Q Is that, at least to your knowledge, the first time that 24 Manuel Pena had been asked to purchase a second weapon under his 25 name? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 31 of 41502 1 A Yes, sir. 2 Q Was there still another call after that? 3 A Yes, sir. 4 the 6th. 5 Q 6 to the point where -- where now the purchase was, in fact, going 7 to -- to be made? 8 A Yes, sir. 9 Q And was that now then December the 19th? 10 A Yes, sir, it was. 11 Q On December the 19th, where were you-all going to -- to meet 12 prior to going to Academy? 13 A 14 ICE OPR and Mr. Gonzalez met in the vicinity of the parking lots 15 of the Kohl's store, which was approximately a quarter to half a 16 mile away from the Academy Sports and Outdoors in Brownsville. 17 Q And why were you-all staging there? 18 A Because it was close enough to Academy. 19 we could also position agents to conduct surveillance both 20 inside and outside of the Academy store. 21 Q 22 lot where you're going to be conducting the investigation, 23 correct? 24 A No, sir. 25 Q Okay. Okay. We made subsequent calls to that first call on And the -- at some point in time, did -- did it get On the morning of December the 19th, myself and members of We could react, and And, of course, you don't want to stage in the same parking Were any calls either made by Sergio or received by Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 32 of 41503 1 Sergio just right before the -- before going to Academy? 2 A 3 10:00 a.m. to Mr. Pena but received no response. 4 half an hour later, Mr. Pena called Mr. Gonzalez back. 5 Q 6 purpose of Pena, Manuel Pena calling back to Sergio? 7 A 8 Academy and ready to meet with him at the store. 9 Q Yes, sir. Mr. Gonzalez placed the call at approximately Approximately And do you know what was the purpose of -- if you know, the Yes, sir. Mr. Pena was telling Mr. Gonzalez that he was at And have you-all finished doing whatever you're going to be 10 doing there at Kohl's before y'all have to get to Academy? 11 A 12 told Mr. Gonzalez he was in the vicinity, so we had to rush to 13 get to Academy. 14 Wal-Mart on Alton Gloor, so it would look feasible that it would 15 take him a few minutes to get there rather than he showed up 16 directly after the telephone call. 17 Q 18 at -- at the Academy parking lot? 19 A 20 parking lot for Academy. 21 Q Was one of those Tommy Morrisey? 22 A Yes, sir. 23 Q What was he tasked to do? 24 A Mr. Morrisey -- correction, Agent Morrisey was tasked to 25 attempt to get video of any transaction that would take place in It was a little rushed because he called, and as I stated, Okay. Mr. Gonzalez told Mr. Pena that he was at the And did you have any agent or agents already situated Yes, there were some ICE OPR agents in their vehicles at the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 33 of 41504 1 the parking lot. 2 Q 3 Government Exhibit No. -- No. 18, which is the video, correct? 4 A Yes, sir. 5 Q I won't play it for you, but you've seen that video while 6 you were sitting here yesterday, correct? 7 A Yes, sir, I have. 8 Q And is that what, in fact, transpired based on your review 9 of the video? And, of course, you've seen here and certainly before 10 A Yes, sir. 11 Q You've seen that video. 12 person that came out with -- with the rifle in that -- in that 13 box on that day? 14 A Yes, sir, I was. 15 Q And who was that? 16 A The individual with the box was Manuel Pena. 17 Q So while you-all are -- are still at Kohl's, do you receive 18 any call from any of the agents regarding whether Manuel Pena is 19 arriving or about to arrive or already there? 20 A 21 they had received a call that Mr. Pena had just arrived and 22 looked like he was about to go in the store. 23 Q 24 Kohl's? 25 A Yes, sir. Were you able to identify the I -- one of the ICE OPR agents let us know that And this is while you-all are still at -- a ways off at Yes, sir. As I said, it happened very quickly. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 34 of 41505 1 Q So what do you-all do? 2 A At that point, we rushed to our vehicles and position. 3 of the agents position within the parking lot at the Academy, 4 and some of the agents get out on foot and actually enter the 5 store. 6 Q 7 enters the store? 8 A I was one of the agents who went into the store. 9 Q When you go in, is -- to your knowledge, is Manuel Pena Some Are you one of those that stays out in the parking lot or 10 already inside the Academy? 11 A Yes, sir. 12 Q How about Sergio Gonzalez? 13 Academy, or are you in there before he is? 14 A 15 I walked in and I -- my goal was to find Mr. Pena. 16 Q So you walk in. 17 A Well, I headed along towards where the boxing and a lot of 18 the sporting goods section and shoe section is because I wanted 19 to take a wide berth in case Mr. Pena was walking around just 20 looking at other items before going to the gun section. 21 Q Did you, in fact, see him? 22 A Yes, sir, I did. 23 Q When did you see him for the first time? 24 A I saw him approximately five minutes after I entered the 25 store. Has he now gone into the Sir, I can't really remember the order that went in because Where do you head? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 35 of 41506 1 Q When you saw him for the first time, where was he? 2 A When I first saw him, he was at the gun counter in the 3 outdoor section. 4 Q In the what, outdoor section? 5 A The gun counter is part of a larger section which is the 6 outdoors to include camping, fishing and other items. 7 Q You don't mean physically outdoors? 8 A No, sir. 9 store. What do you mean? I meant an actual shopping section within the 10 Q Called the outdoor section? 11 A Yes, sir. 12 Q So when he was there, the count -- you said he was at the 13 counter. 14 and guns and ammunition or what? 15 understanding. 16 A 17 are, I believe, two registers on either end of the counter. 18 Behind the counter where the employees work is where the 19 shotguns and rifles are maintained and displayed. 20 Q 21 else? 22 A 23 in the section, stopping and talking to him every once in a 24 while. 25 Q The counter is the counter that also has the rifles Yes, sir. I'm not sure I'm The counter contains handguns, pistols, and there When you saw him, was -- was he by himself or with anybody I saw him first, and then I saw Mr. Gonzalez walking around So how long did you observe Manuel Pena? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 36 of 41507 1 A I did not have a direct visual on him the whole time, but I 2 was in the store approximately 45 minutes, and I would 3 continually reestablish visual contact with Mr. Pena. 4 Q 5 as you say, periodically reestablish contact? 6 A 7 sports clothing to include the Nike, underarmour shirts. 8 taking things off the rack so it looked like I was shopping and 9 then putting them back. So how -- where were you during those times that you would, Most of the time I was walking around the clothing, the I was 10 Q And during the time that -- that you were doing this, you 11 say that Sergio Gonzalez was not with him the entire time there 12 at the counter? 13 A 14 believe they have hunting magazines and possibly camping 15 equipment. 16 because I had lost sight of him. 17 Q Lost sight of Sergio? 18 A Yes, sir. 19 Q Were you there to watch Sergio or to watch Manuel Pena? 20 A I was there to watch Mr. Pena to make sure we knew where we 21 was at the time. 22 Q 23 talk to him, engage in conversation or pretend you didn't know 24 him or what? 25 A No, sir. He was walking around on his own looking at -- I At one point I almost walked directly into him Did you, that one time that you almost bumped into Sergio, I pretended I didn't know him. I didn't want to do anything Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 37 of 41508 1 to just -- to jeopardize the surveillance. 2 Q 3 the counter, what did you observe him doing? 4 close enough to hear him, what did you hear? 5 A 6 he had. 7 behind and from an angle. 8 him there, he was standing at the counter. 9 would engage in conversation with sales associates from the gun What -- during the times that you did observe Manuel Pena at Or if you were I was not close enough to actually overhear any conversation I could see him, but a lot of times I saw him from But at the -- the whole time I saw Occasionally he 10 section. At one point it looked like he was writing something, 11 but I was not close enough to verify what it was. 12 Q 13 away from that counter? 14 A 15 first walked in, once I established visual contact, he was at 16 the gun counter until he departed. 17 Q 18 minutes, right? 19 A No, sir. 20 Q Now, even though you were -- his back was to you, could you 21 see him engage in the -- with one or more of the clerks? 22 A Yes, sir, I could. 23 Q At any point in time, did you see him hold a rifle or point 24 to a rifle or whatever? 25 A At any time did you see him at other parts of the store just No, sir. Every time I saw him, he -- other than when I But you didn't have visual on him the entire 45 or so Not that I recall, sir. Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 38 of 41509 1 Q You said that he appeared to be, you know, signing something 2 or writing something. 3 you're -- if his back is to you? 4 A 5 a few minutes. 6 Q 7 mentioned, does that give you a clear view, straight view to 8 where Mr. Pena was there at the gun counter? 9 A How was it you could tell that if He was hunched over the counter, and he was hunched over for The -- the area where you were, the clothing section you No, sir. I was constantly moving around to make sure that 10 Mr. Pena was still in the same location, and then I would move 11 to where there would be, say, racks between me and Mr. Pena so 12 in case he started looking around, he couldn't identify that I 13 was there. 14 Q 15 relation to, let's say, some of the other aisles there? 16 A 17 aisles in the outdoor lifestyle section, the fishing section. 18 They lead -- some of the counters lead -- or correction. 19 of the aisles lead to the gun counter, and you can see down them 20 pretty easily. 21 Q Are all the aisles the same height? 22 A No, sir. 23 some of the scopes and some of the other gun paraphernalia are 24 lower so you can see right over them. 25 Q How is the counter situated, the gun counter situated in The gun counter is perpendicular to a lot of the other Some The ones in the gun section which have, I think, Were you able to do that then? Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 39 of 41510 1 A Yes, sir, I was. 2 Q Did you -- well, what happens at the end of about 45 or so 3 minutes? 4 A 5 Agent Morrisey saying that one of the other agents in the store 6 had said Mr. Pena looked like he was leaving the store. 7 caught a glimpse of him walking towards the front of the store 8 and then just moved back further into the store so I wouldn't 9 follow him directly out into the parking lot behind him. Well, after about 45 minutes, I get a telephone call from 10 11 12 THE COURT: Excuse me, Mr. Ponce. It's 12:00. So I I'm going to recess the jury until 1:30. Members of the jury, you will be in recess until 1:30. 13 During this recess, you are still under my admonishment that you 14 must not form or express any opinion about the facts of this 15 case. 16 (Jury leaves courtroom) 17 18 19 20 21 Thank you. THE COURT: Please be seated, and the witness may step down. Mr. Ponce, just give me an idea. Tell me again your lineup for this afternoon. MR. PONCE: Your Honor, this is something we discussed 22 just right before calling Agent Owen to the stand. 23 up skipping the other two individuals. 24 I don't think that we're going to call them. 25 being our last witness, Your Honor. We may end We skipped them already. This may end up I don't know about the Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 40 of 41511 1 other small issue regarding the transcript, but we may end up 2 skipping the other two. 3 THE COURT: Okay. The other thing is -- so then, 4 Mr. Gamez, if the government were to rest after this witness, 5 you'd -- you should be prepared to go forward with your 6 witnesses. 7 MR. GAMEZ: Yes, Judge. 8 THE COURT: All right. 9 Thank you. (Recess taken from 12:01 to 1:36.) 10 (Jury enters courtroom) 11 THE COURT: 12 Good afternoon. Please be seated. Mr. Ponce, you may continue. 13 BY MR. PONCE: 14 Q Sir, your name for the record. 15 A Sir, my name is Shaun Owen. 16 Q Sir, of course, you realize you're still under oath. 17 we'll pick up where we left off, okay? 18 A Yes, sir. 19 Q I believe you were mentioning to us that you were inside 20 Academy and were able to see that the -- that Mr. Manuel Pena 21 was already headed out. 22 stopped? 23 A Yes, sir. 24 Q What did -- what did you do once you saw him headed out -- 25 out the store? And I think that's more or less where we Case 1:12-cr-00472 Document 105-1 Filed in TXSD on 01/22/13 Page 41 of 41512 1 A At that point, as I said, I'd received a telephone call from 2 Special Agent Thomas Morrisey from ICE OPR notifying that 3 Mr. Pena had left the store with the weapon. 4 approximately two or three minutes to clear the area and then 5 went back to the parking lot to my vehicle and met up with the 6 other agents and Mr. Gonzalez in the parking lot of Kohl's where 7 we'd started off prior to the purchase. 8 Q So you got into your vehicle and drove over to Kohl's? 9 A Yes, sir. 10 Q And that's just a minute or two away in the same general 11 shopping center or area? 12 A Yes, sir. 13 Q And so you-all regrouped there? 14 A Yes, sir. 15 Q Did Sergio Gonzalez show up there also? 16 A Yes, sir, he did. 17 Q Did he show up immediately, or did he go some place first 18 before going to Kohl's, if you know? 19 A 20 after I got to my car. 21 so I'm not aware if he went anywhere else, but he did arrive 22 after me. 23 Q Okay. 24 A Yes, sir. 25 Q Did you take that from him? So I gave him It's a very quick drive. He arrived after I did, and I was there about five minutes I was just in there making phone calls, And did he have the -- a weapon with him? He had a box, a Remington box with him. Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 1 of 31 513 1 A Yes, sir, we did. 2 Q How about the receipt? 3 A Yes, sir, I took the receipt and the box into possession. 4 Q Did you -- oh, by the way, I forgot to ask you. 5 purchase was made which -- with which funds? 6 A 7 Mr. Gonzalez by ICE OPR. 8 Q 9 before -- before giving them over to Sergio Gonzalez? This second Sir, the funds were $400 in four $100 bills given to And did you-all take photographs of that -- of those bills 10 A Yes, sir, we did. 11 Q Show you No. 17, Government Exhibit No. 17. 12 A Sir, that is a photograph taken by ICE OPR of the $400 that 13 we gave to Mr. Gonzalez prior to the purchase of the second 14 weapon. 15 Q Where did you-all go after regrouping at Kohl's? 16 A Well, sir, we were at the Kohl's parking lot for a few 17 minutes, and then we separated after that. 18 another appointment that I went to. 19 appointment as well, so we didn't regroup anywhere else after 20 Kohl's. 21 Q 22 you see that? 23 A Yes, sir. 24 Q What is -- what is this exhibit here, this No. 19? 25 A Sir, Exhibit 19 is a receipt from Academy Sports and What is that? I believe I had And Mr. Gonzalez had an I'm going to show you Government Exhibit No. 19, sir. Do Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 2 of 31 514 1 Outdoors in Brownsville for the sale of a Remington Model 770, 2 270 caliber rifle, Serial No. Mike 7176198. 3 Q Would you repeat the number again? 4 A It's Mike 71716198. 5 Q And this matched the box and the -- the actual Remington 770 6 that you obtained from Sergio Gonzalez on that day, that being 7 December the 19th? 8 A Yes, sir. 9 Q Did you bring that box here for purposes of trial? 10 A Yes, sir, I did. 11 MR. PONCE: May I approach the witness, Your Honor? 12 THE COURT: Yes. 13 BY MR. PONCE: 14 Q 15 identify that. 16 A 17 scope, 270 caliber rifle for weapon with a Serial No. of Mike 18 71716198 that I saw on December 19th. 19 Q 20 eventually did you remove the rifle from here and take photos? 21 A Yes, sir, I did. 22 Q Well, by the way, before I go on to these photos, on No. 19 23 which I still have here on the screen, does this receipt 24 indicate how much cash was tendered for the purchase of that 25 rifle? Now I'm going to show you No. 26 and ask you if you can Yes, sir. It's a Remington rifle box for Model 770 with That's the one you took into your possession. And Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 3 of 31 515 1 A Yes, sir, it does. 2 Q And it is? 3 A It shows $400 in cash. 4 Q I notice here that there was some change that was due back, 5 74.41. 6 A 7 agents since it had been their money for the purchase. 8 Q Sir, Exhibit No. 21 is what? 9 A Sir, Exhibit 21 is a photograph of the end of the Remington Did you get that change back from Mr. Sergio Gonzalez? Sir, I believe Mr. Gonzalez gave the change to ICE OPR 10 box with the Model 770, 270 caliber with Serial No. Mike 11 71716198. 12 Q 13 the box? 14 A Yes, sir, that is the photograph of the same rifle. 15 Q The -- that -- when you say that, you're referring to 16 Government Exhibit No. 22? 17 A Yes, sir. 18 Q That is, in fact, a Remington 770? 19 A Yes, sir. 20 Q And, in fact, not just a 770, but the one with the serial 21 number that you mentioned before? 22 A Yes, sir. 23 Q Did you take a close-up of the serial number for this 24 weapon? 25 A Do you have a photograph of that particular weapon within Yes, sir, I did. Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 4 of 31 516 1 Q I'm going to show you No. -- Government Exhibit No. 23. 2 What is No. 23, sir? 3 A 4 with the same serial number of the weapon purchased on 5 December 19th. 6 Q 7 it's -- it's M71716198? 8 A Yes, sir. 9 Q Sir, as part of the process, did you, in fact, ultimately Sir, Exhibit 23 is a close up of the Remington Model 770 And, of course, as we can see here on this photograph, 10 obtain the firearms transaction record for the purchase made on 11 December the 5th and for the purchase made on December the 19th? 12 A Yes, sir, I did. 13 Q And these are for the weapons purchased by Manuel Pena; is 14 that correct? 15 A Yes, sir. 16 Q But before I -- before I ask you about that, let me just ask 17 you about this one exhibit, No. 13. 18 sir? 19 A 20 individual as a receipt, of sorts, for equipment that we've 21 taken from them. 22 Mr. Gonzalez on the 6th after we took the Remington 770 that 23 Mr. Pena purchased on the 5th. 24 Q Okay. 25 A Yes, sir, it is. Sir, that is a FD-597. What is Exhibit No. 13, It's an FBI form given to an In this case it was a receipt that I gave to And that's your signature down here? Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 5 of 31 517 1 Q On bottom -- on the left side; is that correct? 2 A On the left side, yes. 3 Q I'm going to show you No. 15. 4 is, sir? 5 A Yes, sir, I do. 6 Q What is that? 7 A Sir, that is an ATF Form 4473 for a firearms transaction 8 filled out by Mr. Pena. 9 Q Okay. Do you recognize what that And down here on the lower left-hand side -- I mean, 10 excuse me, lower right-hand side, we actually see that's what 11 the form is called, the 4473; is that correct? 12 A Yes, sir. 13 Q Okay. 14 A Yes, sir. 15 Q This is the one that was filled out and signed by Manuel 16 Pena with this driver's license indicated here? 17 A Yes, sir. 18 Q On this date? 19 A Yes, sir, on December the 5th. 20 Q For -- as shown here on page 3 of 6th, for the Remington 770 21 with this model number? 22 A With that serial number, sir, yes. 23 Q Excuse me, serial number. 24 corresponds to the rifle purchased on December the 5th, the one 25 that we've seen here in this -- in the photograph just earlier? Known as the firearms transaction record? So this particular Exhibit No. 15 Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 6 of 31 518 1 A Yes, sir, it does. 2 Q I'm going to show you No. 20. 3 A Sir, that is also an ATF Form 4473 for firearms transaction 4 filled out by Manuel Pena. 5 Q Okay. 6 A Yes, sir. 7 Q And is this for the weapon purchased by him on December 8 the 19th of 2011? 9 A Yes, sir, it is. 10 Q This form, it reflects his driver's license and other 11 identifiers? 12 A Yes, sir. 13 Q Page 3 of this particular exhibit indicates that it is for 14 the purchase of which rifle? 15 A 16 No. Mike 71716198. 17 Q 270 caliber? 18 A Yes, sir. 19 Q Now, these records that -- that we see here in Exhibits 20 No. 15 and No. 20, are these records that are required to be 21 kept by the licensee when there's a firearms purchase? 22 A Yes, sir, they are. 23 Q And are they required to be kept under the provisions of 24 Title 18, Chapter 44 of the United States Code? 25 A What is that? And as shown here on page 2, signed by Manuel Pena? For a Remington Model 770 rifle, 270 caliber with Serial Yes, sir, they are. Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 7 of 31 519 1 Q So these records, these copies or what you have here are, in 2 fact -- were, in fact, obtained from the records of Academy 3 Limited No. 30; is that correct? 4 A Yes, sir, they were. 5 Q And did you determine whether they are, in fact, licensed 6 pursuant to federal law to sell firearms? 7 A 8 federal firearms licensee. 9 Q Yes, sir. Academy Store No. 30 in Brownsville is a licensed In fact, as part of your investigation, you did, in fact, 10 obtain a copy of that federal firearms license issued under 11 Title 18, United States Code, Chapter 44; is that correct? 12 A Yes, sir. 13 Q For Academy? 14 A Yes, sir. 15 Q No. 30? 16 A Yes, sir. 17 Q Do you see a No. 30 here? 18 A Yes, sir. 19 Q Let me -- well, you've seen it. 20 A Yes, sir, No. 30. 21 Q And they're required to keep -- this information is required 22 to be kept under the provisions of that chapter that we 23 mentioned in those records of Academy. 24 they actually keep the records? 25 A Let me just -- Do you know how long I'm not sure by the regulation, but the store director for Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 8 of 31 520 1 Academy told me they keep them for 20 years. 2 Q 3 in Exhibits 15 and 20 are United States Department of Justice 4 Bureau of Alcohol, Tobacco, Firearms and Explosives forms, 5 correct? 6 A Yes, sir, they are. 7 Q And in this -- in these forms, did Manuel Pena make a false 8 statement and representation? 9 A Yes, sir, he did. 10 Q And what was that representation? 11 A It was in Block 11A where he marked yes, that he was the 12 principal purchaser. Now, this is a form. 13 MR. GAMEZ: These forms that we're talking about I'm going to object, that statement of him 14 saying that he knows he made a statement, Judge. 15 for the jury to determine, Judge. 16 THE COURT: That's a fact Overruled. 17 BY MR. PONCE: 18 Q 19 where? 20 A 11A. 21 Q Is this 11A that I'm pointing to here on Government 22 Exhibit No. 15? 23 A Yes, sir, it is. 24 Q You can see here that it's Government Exhibit No. 15? 25 A Yes, sir. I'm going to show you No. 15 first. You said in block Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 9 of 31 521 1 Q Let me go to 11A. So that he, by filling out and signing 2 this form, represent to the effect that he was the actual buyer 3 of the -- of that firearm, that Remington Model 770? 4 A Sir, can you repeat the question, please? 5 Q Is he, by signing this form, representing to Academy that he 6 is the actual buyer of that firearm? 7 A Yes, sir, he is. 8 Q And in truth and in fact, he is doing what, based on your 9 investigation? 10 A Based on our investigation, he was performing a straw 11 purchase because he bought the weapon for someone else, not for 12 himself as the actual buyer of the weapon. 13 Q 14 another person? 15 A Yes, sir. 16 Q And that is indicated by his actually checking off that, 17 yes, he is the buyer of that firearm listed on the form, 18 correct? 19 A Yes, sir. 20 Q That was for No. 15. 21 the Form 4473, what can you tell us about his representation 22 concerning the purchase of that particular firearm? 23 A 24 marked yes, once again saying that he was the actual transferee 25 or buyer of that weapon. So in other words, he purchased the firearm on behalf of Let me show you No. 20. On No. 20, Sir, he made a false representation because in Block 11A, he Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 10 of 31522 1 Q And in truth and in fact, he was what? 2 A He was -- Mr. Pena was straw purchasing that weapon by 3 buying it for another individual. 4 Q 5 and at some point in time ultimately -- ultimately arrest the 6 defendant, Mr. Manuel Pena? 7 A Yes, sir, we did. 8 Q When did that occur? 9 A The arrest took place on the morning of May 24th, 2012. 10 Q And what happened on that morning, sir? 11 A That morning on May 24th, 2012, myself and other agents from 12 ICE OPR staged at the FBI office in Brownsville to basically 13 plan out how we were going to conduct the arrest of Mr. Pena. 14 At that point -- 15 Q 16 warrant for him, correct? 17 A Yes, sir, we did. 18 Q Did you-all conduct a traffic stop once you found out where 19 he was? 20 A Yes, sir, we did. 21 Q Did you then have him escorted or ask him to accompany 22 you-all to the FBI office? 23 A Yes, sir, we did. 24 Q Which FBI office are we talking about? 25 A The FBI office in Brownsville. Did you and other agents then continue your investigation Let me just stop you there. By now you had an arrest It's located at 2305 Hudson Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 11 of 31523 1 Boulevard. 2 Q Where is that? 3 A That's the intersection of Hudson Boulevard and what's now 4 called Coffee. 5 Q 6 traffic stop of Manuel Pena? 7 A It would have been approximately 2 to 3 miles away. 8 Q Did you-all then eventually get to the FBI office? 9 A Yes, sir, we did. 10 Q What time are we talking about more or less? 11 A Approximately 7:30, 7:45 that morning. 12 Q Did you all inform Mr. Pena that y'all would like to talk to 13 him? 14 A Yes, sir, we did. 15 Q To ask him if he was willing to -- to talk to you-all? 16 A Yes, sir. 17 Q Do you-all at some point read him his rights? 18 A Yes, sir, we did. 19 Q Did -- was he willing to waive those rights and willing to 20 talk to you-all? 21 willing to talk to you-all? 22 A Yes, sir, he was. 23 Q What is No. 28, sir? 24 A Exhibit 28 is a Department of Homeland Security statement of 25 rights form that we showed to Mr. Pena, witnessed and signed by And how far or close is that from where you-all made the Was he willing to waive those rights and Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 12 of 31524 1 Mr. Pena. 2 Q 3 here where it says "signed" has a line, and then there's a 4 signature above that. 5 A Sir, that is Manuel Pena's signature. 6 Q Did you and other agents sign as witnesses? 7 A Yes, sir. 8 Michael Deans from ICE OPR who signed as the second witness and 9 then dated and timed it. And you say witnessed and signed by Mr. Pena. The signature Whose signature is that? I signed the first line as a witness followed by 10 Q So this is 8:18? 11 A Yes, sir, in the morning. 12 Q By the way, that -- the signature here is certainly the same 13 individual that has made the purchase of those weapons as 14 indicated on the Forms 4473? 15 A Yes, sir. 16 Q Let me ask you then about the -- his willing to -- to visit 17 with you-all. 18 purchases? 19 A Yes, sir, we did. 20 Q By the way, who -- who is talking to him there at the FBI 21 office? 22 A 23 him are Special Agent Michael Deans with ICE OPR and me. 24 Q 25 certainly you or Agent Deans, there with him, let him know about Did you -- did you ask him about the weapons At that point, the two primary agents who were interviewing When -- did anyone -- and when I say anyone, what I mean is Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 13 of 31525 1 the two -- that you know about the two -- what you called straw 2 purchases of those weapons? 3 A 4 Deans explained the straw purchases that took place in 2011, 5 explained them to Mr. Pena. 6 Q In December of 2011? 7 A Yes, sir. 8 Q When you-all were -- you just didn't say 2011, did you? 9 A No, sir, we were specific about the month. 10 Q By the way, I know that term has been used here several 11 times, straw purchase or straw purchases. 12 that mean? 13 A 14 annotated in Block 11A. 15 purchaser when, in fact, the weapon is for another individual; 16 that he is not planning on being the owner of that weapon. 17 Q 18 other words? 19 A Yes, sir. 20 Q That's what's called a straw purchase? 21 A Yes, sir. 22 Q So on the records, it appears as this person being the 23 purchaser, owner of the weapon? 24 A Yes, sir. 25 Q The -- did -- did Manuel Pena explain the purchase to Yes, sir. While we were talking to Mr. Pena, Special Agent What -- what does It's the purchase of an individual as shown by what Mr. Pena He's saying that he is the primary So, in other words, just purchasing for somebody else, in Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 14 of 31526 1 you-all? 2 A Yes, sir, he did. 3 Q What did he say about the purchase of those rifles? 4 A Mr. Pena stated that the purchase of the rifles was for his 5 friend, Sergio Gonzalez. 6 Q 7 friend, Sergio Gonzalez? 8 A 9 that Mr. Pena and some of his friends frequent during hunting Okay. And for what purpose did he obtain them for his He stated that the purpose was to use them on a deer lease 10 season. 11 Q 12 were rifles for his friend? 13 A Yes, sir. 14 Q Did he tell you at that time that -- that no, he was the 15 owner along with several other people? 16 A 17 specifically for his friend, Mr. Gonzalez. 18 Q 19 purchased in terms of where they were? 20 A 21 he had purchased were at Mr. Gonzalez's house and that he had 22 seen them there. 23 Q 24 these weapons for Sergio Gonzalez, to tell you what -- what 25 these rifles were? But he said that those purchases -- that those purchases No, sir. He was very specific that he had purchased them What did he tell you about those rifles that he had He stated that the -- Mr. Pena stated that the rifles that Did -- did you ask him, well, to tell you if he had bought Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 15 of 31527 1 A Yes. 2 Q What did he say about what those rifles were? 3 A Mr. Pena stated that they were 30-06 Mossberg rifles. 4 Q And did you know whether they were -- those purchases were, 5 in fact, for 30-06 Mossbergs at that time? 6 A Can you say that again, sir? 7 Q Did you know -- when he is telling you this, do you know 8 that those weapons that had been purchased on the 5th and on the 9 19th were actual Mossbergs? 10 A No, sir. I knew they were not Mossbergs. 11 Q Did you -- at that precise moment, did you tell him that, 12 no, they're not Mossbergs? 13 A No, sir, we did not correct his statement. 14 Q Okay. 15 that time then? 16 A 17 use on the deer lease. 18 Q 19 the deer lease? 20 A Yes, sir. 21 Q Okay. 22 returning from the deer lease? 23 A 24 from the deer lease at that time, that Mr. Gonzalez wanted to 25 keep the two rifles and had asked to buy them from Mr. Pena. Did he tell you why he had purchased those guns at Yes, sir. Mr. Pena stated he had purchased the weapons for Did he say whether he had actually taken these weapons to He stated he had. What did he say regarding what he did with them after Mr. Pena stated that when they had -- when he had returned Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 16 of 31528 1 Q So what he's telling you there is regarding these weapons 2 that have been purchased at Academy, that he has taken them 3 hunting, correct? 4 A Yes, sir. 5 Q He has returned, correct? 6 A Yes, sir. 7 Q And after returning, that -- that now Sergio Gonzalez wants 8 to buy them from -- from him, correct? 9 A Yes, sir. 10 Q When he's telling you this about having taken the weapons to 11 hunting and then returning with them, did you know whether that 12 was true or not? 13 A Yes, sir, we did. 14 Q Was that true? 15 A No, sir, it was not. 16 Q Did you -- and why is that? 17 A Sir, because at the time we had custody of both Remington 18 770s, 270 caliber in our gun vault. 19 Q 20 all? 21 A Yes, sir. 22 Q Did you at that point tell him that you knew that he was not 23 telling the truth about that? 24 A It was a little bit after that, sir. 25 Q I'm talking about that precise moment in time. Is that correct? And you knew that they had not gone to any deer lease at Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 17 of 31529 1 A At that moment, no, sir. 2 Q What did he say about whether he had used those weapons and 3 how many times he had used those weapon, the ones purchased at 4 Academy? 5 A 6 he could call Mr. Gonzalez up on the telephone, and Mr. Gonzalez 7 could bring them at that instant to our office to show them to 8 us. 9 Q Mr. Pena stated that he had used both weapons twice and that So when he's telling you that he has used those weapons 10 twice, did you know whether that was true or not? 11 A Yes, sir, we did. 12 Q Was it true? 13 A No, sir, it was not. 14 Q At that precise moment in time, did you tell him that what 15 he was telling you wasn't true? 16 A No, sir. 17 Q By the way, you are an agent with which department, sir? 18 A Sir, I'm with the Federal Bureau of Investigation. 19 Q And is that certainly -- that is -- 20 (Electrical screeching sound in courtroom.) 21 22 23 24 25 THE COURT: is. It's something, but we don't know what it They're trying to figure it out. COURT CLERK: It could be any one of the mics, Your Honor, if somebody got kind of close to it. THE COURT: Okay. Well, keep going. Get IT to come up Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 18 of 31530 1 and figure it out. 2 BY MR. PONCE: 3 Q 4 Investigation, correct? 5 A Yes, sir. 6 Q Is that a branch of the government of the United States? 7 A Yes, sir. 8 Q Which branch? 9 A Falls under the executive branch. 10 Q And when this Manuel Pena, Manuel Eduardo Pena is talking to 11 you and making these statements that you know are false, 12 fictitious, fraudulent, are you asking him these questions and 13 talking to him in regards to a matter that's under the 14 jurisdiction of the -- of the FBI that you're investigating at 15 that point? 16 A Yes, sir, we are. 17 Q And he's making these statements to you? 18 A Yes, sir, he was. 19 Q What did he tell you about -- about Sergio Gonzalez in 20 relation to Sergio's status? 21 A 22 resident at that time. 23 Q And did he tell you where Sergio Gonzalez used to live? 24 A Mr. Pena told us that Mr. Gonzalez had previously lived at 25 The Border Apartments in Brownsville, Texas, but had since moved The -- you said you're with the Federal Bureau of It falls under one of the branches. Sir, he stated that Mr. Gonzalez was a legal permanent Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 19 of 31531 1 back into his house. 2 Q 3 purchased these rifles for? 4 A 5 himself. 6 Q Okay. 7 A Well, he said that he wanted to -- he'd also purchased them 8 to lend to Mr. Gonzalez because Mr. Gonzalez could not afford to 9 buy the rifles himself. Okay. What -- what did he tell you about who he had Mr. Pena told us that he had purchased the rifles for Okay. And any other reason? 10 Q At that time did he tell you that actually Sergio 11 Gonzalez had given him the $400 to make that purchase on the 12 19th and some money on the -- and the money for the purchase on 13 December the 5th? 14 A 15 never reimbursed him or given him any money; given Mr. Pena any 16 money for the rifles. 17 Q 18 case? 19 A 20 the rifles on both instances. 21 Q 22 that that wasn't the case? 23 A No, sir. 24 Q Well, did you ask him how often or who he goes with to the 25 hunting, to the deer lease or whatever? No, sir. At that time he advised us that Mr. Gonzalez had And when he's telling you this, do you know that to be the No. We knew that Mr. Gonzalez had given Mr. Pena money for Did you tell him, did you tell Manuel Pena that you knew Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 20 of 31532 1 A Yes, sir, we did. 2 Q What did he say? 3 A He stated that -- Mr. Pena stated that he and his friends go 4 hunting on the deer lease approximately five times during the 5 yearly hunting season. 6 Q 7 rifles, did you ask him, you know, about that again? 8 A Yes, sir, we did. 9 Q Well, what did he say when you broached the subject of the Now that he's told you that he had not been paid for these 10 actual payment? 11 A 12 Mr. Gonzalez had paid for them and that he had seen them 13 previously that year. 14 Q When? 15 A He -- Mr. Pena told us he had seen the weapons in 16 January 2012. 17 Q Had last seen the weapons January of 2012? 18 A Yes, sir. 19 Q Okay. 20 true or not? 21 A Yes, sir, we did. 22 Q Was that true? 23 A No, sir, it was not. 24 Q And why is that? 25 A Sir, because in January 2012, the -- both Remington 770s Well, at that time Mr. Pena once again denied that Now, did you know that that was -- whether that was Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 21 of 31533 1 were in FBI custody in our evidence vault. 2 Q 3 actually had those rifles, the ones that he said he had taken to 4 the deer lease and shot twice or whatever? 5 A 6 were in FBI custody and in evidence. 7 Q Well, did you ask about who he had made this purchase for? 8 A Yes, sir, we did. 9 Q What did he say? 10 A He -- Mr. Pena denied buying or purchasing the weapons for 11 Mr. Gonzalez. 12 Q 13 purchase those weapons, the 4473 forms for the December 14 the 5th and the 19th? 15 A 16 from both purchases. 17 Q 18 had last seen the -- those rifles? 19 A Yes, sir, he did. 20 Q What did he say? 21 A Mr. Pena admitted that he could not remember the last time 22 he had physically seen the weapons. 23 Q 24 he had told you earlier, having brought them back from the deer 25 lease? Did you now get around to telling him that -- that you-all Yes, sir. At that point we told Mr. Pena that the weapons Did you ask him about the paperwork, that is the -- to Yes, sir. Mr. Pena also denied lying on the ATF Forms 4473 Then did he then at some point admit to you, well, when he And why is that? What did he say about having brought -- as Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 22 of 31534 1 A He thought he had brought -- Mr. Pena thought he had brought 2 them back from the deer lease the last time he had gone hunting. 3 Q 4 them to the deer lease? 5 A Yes, sir, he did. 6 Q Did he say what he did with the rifles during the time that 7 he said he took them to the deer lease? 8 A Yes, sir, he did. 9 Q What did he tell you he did with those Remingtons? 10 A Mr. Pena told us that he sighted in the rifles during that 11 trip to the deer lease. 12 Q Did you know that -- whether that was true or not? 13 A Yes, sir, we did. 14 Q Was that true? 15 A No, sir, it was not. 16 Q Because they never made it to the deer lease and you had 17 them in your possession, correct? 18 A Correct, sir. 19 Q Did you ask him how is it that he paid for these rifles? 20 A Yes, sir, we did ask him that. 21 Q What did he tell you about that? 22 A He originally -- Mr. Pena originally stated that he had paid 23 for the weapons in cash, but later said he possibly could have 24 paid with one of the weapons -- or paid for one of the weapons 25 with a credit card. So once again he's telling you that he had, in effect, taken Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 23 of 31535 1 Q And, of course, you had -- by then you had the receipts. 2 Did any of them reflect that -- that the weapon had been 3 purchased, at least one of the weapons had been purchased with a 4 credit card? 5 A No, sir, they did not. 6 Q Did you tell him at that point that you had the receipts? 7 A No, sir. 8 Q What did he tell you was the cost of the weapons? 9 A Mr. Pena told us that the approximate cost of both rifles 10 individually was between 280 and $300. 11 Q 12 rifles in addition to the two that he was talking to you about, 13 the Remingtons? 14 A Yes, sir, he did. 15 Q What else did he say he had? 16 A Mr. Pena told us in addition to the Remington 77 -- 770s he 17 had purchased, he also had a 270 caliber Mossberg rifle, .12 18 gauge shotgun, and a .40 caliber Taurus pistol. 19 Q 20 Academy purchasing the rifles for himself, as he said, whether 21 there was anyone else with him? 22 A Yes, sir, we did. 23 Q What did he tell you about that? 24 A Mr. Pena told us that both times that he purchased the 25 rifles that Mr. Gonzalez was with him as well. Did he say whether he actually owned any other rifles -- Well, did you ask him if during the time when he was at Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 24 of 31536 1 Q What -- did he tell you whether he did -- he did anything on 2 occasion with Sergio Gonzalez? 3 A 4 together on occasion. 5 Q 6 did he say something about that? 7 A 8 all go hunting together. 9 Q Yes, sir. Mr. Pena told us that he and Mr. Gonzalez hunted And when they do go hunting, is it just him and Sergio, or Sir, he told us that it's usually four to five friends who Did he tell you why, if these Remingtons were for him, why 10 is it that -- that Sergio Gonzalez was with him during those two 11 purchases? 12 A 13 not purchase the weapons. 14 Q No, I'm not talking about that. 15 A Okay. 16 Q I'm talking about why he was even -- if Manuel Pena is 17 buying those weapons for himself to take to the deer lease and 18 did take to the deer lease, as he says, why is it that Sergio 19 Gonzalez needs to be there, you know, with him? 20 A No, sir. 21 Q Did you ask him questions about -- about Sergio Gonzalez, 22 who he was again and -- 23 A Yes, sir, we asked him a few more questions. 24 Q What did he tell you about Sergio Gonzalez? 25 A Once again, Mr. Pena told us that Mr. Gonzalez was a legal Did he tell you-all that or no? He didn't really get into why Mr. Gonzalez could or could Did he say? Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 25 of 31537 1 permanent resident living in The Border Apartments that had 2 since, once again he stated, moved back into his old home. 3 Q 4 back? 5 A 6 security guard or toll collector at Gateway Bridge in 7 Brownsville. 8 Q Is that essentially how the interview terminated? 9 A Yes, sir, it was. 10 Q After this -- this interview, did you believe he had been 11 truthful with you? 12 A No, sir, we did not. 13 Q FBI agent? 14 A No, sir. 15 Q And he was not truthful to you because he mentioned to you 16 that those two firearms were for himself and that he had 17 actually used those firearms at the lease? 18 A Yes, sir. 19 Q And in truth and in fact, what was the case? 20 A The case was that he -- Mr. Pena had purchased both weapons 21 for Mr. Gonzalez via straw purchase that he had -- 22 Q Sergio Gonzalez? 23 A Yes, sir. 24 Q For what? 25 A For Mr. Gonzalez's use. Did he tell you what Sergio Gonzalez used to do sometime Mr. Pena told us that Mr. Gonzalez had either been a Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 26 of 31538 1 Q And, in fact, they were actually never used by Manuel Pena; 2 is that correct? 3 A Yes, sir. 4 Q Is this the statement that was -- or are these the 5 statements made to you by Mr. Pena that constitute the 6 fraudulent statements and representations within the matter that 7 you're investigating there as an FBI agent? 8 A Yes, sir. 9 Q And these statements were made to you when, sir? 10 A These statements were made on May 24th, 2012. 11 Q The -- of course, you're aware that when a weapon is 12 purchased from a licensed firearms dealer, licensee, federal 13 firearms licensee, FFL, that the purchaser/owner has to sign 14 the -- the required forms under the law, correct? 15 A Yes, sir. 16 Q Has to sign them truthfully? 17 A Yes, sir. 18 Q What about when a person wants to buy a deer lease? 19 need to sign anything for that purpose or buy deer corn or other 20 things that might be needed at -- at a deer lease? 21 A No, sir. 22 Q The individual that you mentioned to us here that you 23 interviewed back on May the 24th of 2012, is he in this 24 courtroom today? 25 A Yes, sir, he is. Do they Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 27 of 31539 1 Q 2 wearing, point to him if necessary? 3 A 4 table to the right of Mr. Gamez. 5 light blue shirt, and a light colored tie. 6 a -- has facial hair. 7 8 Could you please tell me where he's seated, what he's Sir, he is seated to your right at the opposing counsel MR. PONCE: He's wearing a dark coat, a And I believe he has Your Honor, for the record, the witness, FBI Agent Owen, has identified the defendant, Manuel Eduardo Pena. 9 THE COURT: The record will so reflect. 10 MR. PONCE: Pass at this time, Your Honor. 11 THE COURT: Mr. Gamez? 12 CROSS-EXAMINATION 13 BY MR. GAMEZ: 14 Q Good afternoon, sir. 15 A Good afternoon, sir. 16 Q We know each other, do we not? 17 A Yes, sir, we do. 18 Q On other occasions? 19 A Yes, sir. 20 Q Sir, I believe, and correct me if I'm mistaken, did you 21 participate in assisting in some recordings of Sergio Gonzalez 22 and Mr. Pena? 23 A Yes, sir, I did. 24 Q Why would you do that? 25 A The recordings were for evidentiary purpose, in furtherance Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 28 of 31540 1 of our investigation. 2 Q 3 purpose? 4 A 5 conversation between two individuals, in this case between 6 Mr. Pena and Mr. Gonzalez. 7 Q 8 this conversation and ask Mr. Pena to buy a firearm for you? 9 A Sir, did you have a specific date or -- 10 Q Well, how many times did you have him -- yes. 11 dates that were discussed in court. 12 that were discussed in court? 13 A Yes, sir. 14 Q Did you not tell Mr. Gonzalez that he had to make this phone 15 call? 16 A 17 us. 18 Q 19 recording, you say, is to have a factual account for an 20 evidentiary hearing; is that it? 21 A Not for evidentiary hearing. 22 Q Evidentiary purposes? 23 A Yes, sir. 24 Q So one of the evidentiary purposes in a recording is to 25 establish the truth of what is said? What does that mean, the purpose of it is for evidentiary That's because the recordings give a factual account of a So did you ask or tell Mr. Gonzalez: Yes, sir. Okay. I want you to record Let's say the Do you remember the dates They're the ones on the board behind me. We asked Mr. Gonzalez to make the phone call for And the purpose of having a phone call or a For evidentiary purposes. Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 29 of 31541 1 A Yes, sir. 2 Q Does that assist you in any way in determining who's telling 3 the truth and who's not? 4 A Yes, sir, it does. 5 Q Does that help you when the situation says: 6 that. I didn't say I meant this. 7 No, you said this. 8 Does it help you determine what the actual, to use your 9 words, factual accounts are? 10 A Yes, sir. 11 Q Okay. 12 A Yes, sir, we did. 13 Q Okay. 14 telephone for Mr. Gonzalez to make a call? 15 A Not very difficult, sir. 16 Q Okay. 17 consent to do this with you? 18 A Yes, sir. 19 Q And he was rather cooperative, wasn't he? 20 A Yes, sir. 21 Q Okay. 22 you? 23 A Yes, sir. 24 Q Okay. 25 rights and talk to you? And did you do this on more than one occasion? And how difficult was it to put on a recorder on the And did Mr. Gonzalez also sign an agreement and In fact, was Mr. Manuel Pena rather cooperative with And did he also sign an agreement to waive certain Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 30 of 31542 1 A Sir, are you talking about his advice of rights form or -- 2 Q Sure. 3 A Yes, sir, he did. 4 Q Okay. 5 accounts? 6 A They can be helpful, sir. 7 Q Yes. 8 have been, sir, to simply -- after he agrees to talk to you, 9 simply put on a recorder, recording, and start it and say: Now, if you -- do you like recordings for factual Well, in this case with you, how difficult would it 10 Okay. 11 there's no misunderstandings. 12 been for you? 13 A Sir, when you say "he," who are you referring to? 14 Q You, Mr. Shaun Owens. 15 you to do the same thing that you did with Sergio on the 16 telephone? 17 18 Let's have a factual account of what's going on so Excuse me, Mr. Pena. Here's a recording. 19 How difficult would that have How difficult would it have been for Let's not have any misunderstandings. Now let's talk. How difficult would that have been for you? 20 A Sir, are you asking how difficult it would have been to 21 record the interview of Mr. Pena? 22 Q Yes. 23 A It wouldn't have been difficult, sir. 24 Q Why didn't you do that? 25 A Sir, it's FBI policy. We do not record our interviews. Case 1:12-cr-00472 Document 105-2 Filed in TXSD on 01/22/13 Page 31 of 31543 1 Q 2 is occurring for evidentiary purposes, it is FBI's policy -- it 3 can be FBI's policy to take a recording. 4 5 You just stated, sir, that to have a factual account of what THE COURT: All right. already answered the question. 6 THE WITNESS: You don't have to -- he's You don't have to. Yes, Your Honor. 7 BY MR. GAMEZ: 8 Q 9 ideology to Mr. Pena's conversation with you? 10 Okay. Now, why didn't you apply the same -- the very same THE COURT: Asked and answered. 11 BY MR. GAMEZ: 12 Q 13 talk to a potential defendant? 14 A 15 reports which memorialize those interviews during our 16 investigations. 17 Q 18 what you say is on your reports, is that it? 19 What do you mean it's not FBI's policy when you sit down and Sir, just based on our training, we're taught to write They're our FD-302s. Oh, so it's your training. THE COURT: You get to write your reports, Don't argue with the witness. Don't argue 20 with the witness. He's already -- you've asked the question. 21 He's answered it. 22 BY MR. GAMEZ: 23 Q 24 better form of evidence when you have a conversation with a 25 potential defendant is to record that as opposed to just your Do you have an opinion, sir, as an investigator whether a Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 1 of 41 544 1 notes? 2 evidentiary purpose, as you say? 3 Do you have an opinion as to which is a better MR. PONCE: I'm going to object, Your Honor. That 4 invades the province of the jury and for the jury to ultimately 5 determine. 6 THE COURT: 7 THE WITNESS: 8 BY MR. GAMEZ: 9 Q Overruled. Answer the question. Can you repeat the question, sir? Do you have an opinion as to which is a better source of 10 information? 11 write down your summaries. 12 factual account of the evidence, Mr. Owen? 13 A 14 people review my report, people who were also present for the 15 interview. 16 Q 17 better than the other, or you say they both have equal value? 18 A I've used both of them in investigations. 19 Q Sir, you understand that Mr. Pena disagrees with your 20 interpretation of the facts, do you not? 21 22 To record, as you did in one case, or to simply Which do you believe to be a better Sir, they both have about equal value because multiple So you don't have an opinion? THE COURT: All right. You say they're -- one is You do not have to answer a question about somebody else's opinion. 23 THE WITNESS: 24 BY MR. GAMEZ: 25 Q It's not relevant. Yes, Your Honor. If there was testimony that disagreed with your opinion -- Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 2 of 41 545 1 excuse me. 2 does not agree with you, sir, would you say that -- that 3 testimony or evidence would be incorrect? 4 If there was testimony or evidence presented that THE COURT: You have to be more specific. 5 BY MR. GAMEZ: 6 Q 7 Mr. -- that states that I disagree with you, Mr. Owen. 8 not make that statement. 9 testimony or evidence was incorrect? 10 11 If there was testimony or evidence presented that says -- by MR. PONCE: I did You would say that individual's Your Honor, I'm going to object. Ask for specificity on his question. 12 THE COURT: Sustained. 13 BY MR. GAMEZ: 14 Q 15 specifically say that I took those particular deer rifles that 16 are in question today to the ranch, but I thought they were 17 there with all the rest of the rifles when we sighted our rifles 18 in. 19 The specificity would be, sir, for example, I did not Would you disagree with that statement, if made? If that 20 were the evidence presented? 21 A Yes, sir. 22 Q Would you disagree with the evidence or if the evidence or 23 testimony is presented and say: 24 Mr. Gonzalez if he took the rifles with him and sighted them in. 25 You would say that would be an incorrect or inconsistent Look, however, you can ask Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 3 of 41 546 1 evidence, consistent with your report? 2 A Yes, sir. 3 Q Sir, what you said -- what is a complaint? 4 used the word "complaint." How do you use the word complaint? 5 THE COURT: In what context? You said -- you Complaint regarding the 6 events of December the 5th, 6th, or complaint as the result of 7 an investigation? 8 BY MR. GAMEZ: 9 Q Okay. Explain the difference. What's the difference 10 between a complaint that you make and a complaint that you say 11 you -- how you used it in this particular case with Mr. -- 12 THE COURT: You have to clarify the context. 13 BY MR. GAMEZ: 14 Q Okay. 15 A Sir, are you talking about in order for the arrest? 16 Q Yes. 17 A Yes, sir. 18 Q Okay. 19 A Yes, sir. 20 Q An agent will say that a crime has been committed or is 21 accusing someone of a crime, you file a complaint? 22 A Yes, sir. 23 Q Okay. 24 cause; am I correct? 25 A Did you make a complaint in this case? And that's fairly normal, right? And then an arrest is issued if there's probable Yes, sir. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 4 of 41 547 1 Q There's not any proof that that person is guilty, but it's 2 your assessment of the facts, and you file a complaint? 3 A Yes, sir. 4 Q Okay. 5 be true, truthful? 6 A Yes, sir. 7 Q Okay. 8 said there was a complaint made. 9 A Yes, sir, it was. 10 Q And I believe you said that you did that so you could 11 approach his house? 12 A Yes, sir. 13 Q That actually -- was that true? 14 A The complaint I was referring to was the complaint somebody 15 had seen him on the deck of his apartment with a rifle, not a 16 court-ordered complaint. 17 Q 18 true? 19 officer, a public servant? 20 A No, sir. 21 Q What do you mean by ruse? 22 A It was a explanation given to him that we knew that he had 23 been showing that weapon on the balcony. 24 Q 25 complaint made against you, Mr. or Ms. So-And-So, that that was Now, you went to -- and you allege that complaint to Now, in Sergio's case, you went to his house, and you Exactly. Is that your testimony? Now, was your allegations of a complaint made Did a citizen make a complaint to a public official or an It was a ruse to approach Mr. Gonzalez. Would you also say that when you told him there's a Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 5 of 41 548 1 an untrue statement? 2 A Yes. 3 Q Now, at that time when you tell someone and you go their 4 house, "We have a complaint against you," do you not -- do you 5 have an opinion as to whether or not that individual is going to 6 be alarmed when you approach them? 7 A 8 please? 9 Q Are you asking me to -- could you repeat the question, From your experience when you make up a story and come to 10 someone in their house and say, "We have a complaint against 11 you," do you not think that's going to alarm someone? 12 A Yes, sir. 13 Q Especially when it's not true? 14 A Yes, sir. 15 Q Well, why do you do it that way then? 16 THE COURT: You don't have to answer that question. 17 BY MR. GAMEZ: 18 Q Did you hear Mr. Sergio Gonzalez say he was scared? 19 A Yes, sir, during his testimony. 20 Q You understand why he was scared? 21 A Yes, sir. 22 Q Was one of the reasons he was scared because you made a 23 false statement to him that he made a -- that there was a 24 complaint about him, and that he might have thought: 25 to get arrested because I had a rifle outside looking through I'm going Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 6 of 41 549 1 it, looking through a scope. 2 3 MR. PONCE: Did you ever think about that? I'm going to object. He's asking this witness to speculate on what was in the mind of Sergio Gonzalez. 4 MR. GAMEZ: Your Honor -- 5 THE COURT: Okay. He can answer the question. But when 6 you say "did you think about that" suggests that you're arguing 7 with the witness. 8 9 Ask something that would be a common inference. But actually you've already asked that question several times. 10 allow you one more time, but not if you put it a way that 11 suggests that you're arguing with the witness. 12 MR. GAMEZ: I'll Respectively, Judge. 13 BY MR. GAMEZ: 14 Q 15 scared when you told him, "We have a complaint on you"? 16 A Yes, sir. 17 Q Is that an FBI tactic, sir, to use? 18 A We as law enforcement have used methods like that before. 19 Q Now, you sit Mr. Gonzalez down, or are you standing up after 20 that, or how do you get inside? 21 A How do we get inside his apartment, sir? 22 Q Yes. 23 A We had two Brownsville police officers approach him, 24 approach Mr. Gonzalez's apartment on the second floor of block 25 1600 and make contact with him by knocking on the door and Sir, do you agree with Mr. Sergio Gonzalez that he was Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 7 of 41 550 1 talking to him. 2 with a rifle on the balcony, and then they got consent to come 3 into the apartment. 4 Q Did you get a consent signature? 5 A Yes, sir, we did. 6 Q To enter the premises? 7 A Yes, sir. 8 Q At that time would you agree with me, sir, that Sergio 9 Gonzalez would have signed anything afraid? 10 They discuss the incident with him being seen MR. PONCE: I'm going to object. 11 asking him would he sign anything. 12 part. Speculation. He's That's speculation on his 13 MR. GAMEZ: I'll be more specific, Judge. 14 THE COURT: Yes. You are asking by your question what 15 somebody else would have done. That is speculation. 16 BY MR. GAMEZ: 17 Q 18 you're talking to as an FBI agent? 19 A I'm not sure what you mean by size up, sir. 20 Q Do you try to determine their demeanor, their conduct, 21 whether they're threatening, whether they're non-volatile, 22 nonviolent? 23 A Yes, sir. 24 Q Do you determine from their voice whether they're 25 aggressive, passive, humble, meek, mild? In your experience, do you try to size up the person that Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 8 of 41 551 1 A Yes, sir. 2 Q Do you determine, sir, as one of the characteristics whether 3 their vocabulary is elevated, high vocabulary, high intelligence 4 or low vocabulary or low intelligence? 5 A Yes, sir. 6 Q Do you determine whether they're aggressive or passive? 7 A Yes, sir. 8 Q Outspoken or withdrawn? 9 A Yes, sir. 10 Q In this particular case, would you say that Sergio Gonzalez 11 was very humble, meek and mild? 12 A At what point of the approach, sir? 13 Q At the point in time when you approach and says: 14 complaint on you. 15 A 16 that time were the Brownsville police officers. 17 were downstairs away from the door. 18 Q When did you get up there? 19 A Approximately two or three minutes after that, once we had 20 been told that the location was safe and secure and that they 21 had gained consent to come in. 22 Q 23 apartment, did you not? 24 A Yes, sir. 25 Q And y'all discussed what you were going to say while We have a Sir, the only two individuals who were with Mr. Gonzalez at The rest of us And you-all discussed how you were going to approach the Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 9 of 41 552 1 approaching the apartment at the door? 2 A Yes, sir. 3 Q And you-all approached -- discussed how you were going to 4 get in the apartment? 5 A Yes, sir. 6 Q So there was a plan? 7 A Yes, sir. 8 Q And you were in charge of that plan? 9 A Yes, sir. 10 Q And everything went as you ordered? 11 A Yes, sir. 12 Q Now, when you got in, what is it that you did in the 13 apartment on December the 6th, 2011? 14 A 15 talking to Mr. Gonzalez, but he -- I believe he had brought his 16 rifles, including the Remington 770, forward, so we began to 17 inspect the weapons, myself and some of the other ICE OPR 18 agents. 19 Q What weapons did you begin to observe or inspect? 20 A We saw the JCP custom made rifle, we saw the Mossberg .22 21 caliber Plinkster, and we saw the Remington 770 that had been 22 purchased the day before. 23 Q Now, that JCP, that's the brown rifle? 24 A Yes, sir. 25 Q That's an old rifle, isn't it? Sir, at that point, Brownsville Police Department was still Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 10 of 41553 1 A It looked fairly worn, sir. 2 Q Did you check and see when it was purchased? 3 A I believe ICE OPR asked Mr. Gonzalez about the purchase of 4 those weapons. 5 Q 6 charge? 7 A We asked Mr. Gonzalez and went with that. 8 Q Well, you did check, did you not, to see if they were 9 stolen? Did you check to see when it was purchased as being in 10 A Yes. At a later time once we were in a more secure area. 11 Q Okay. 12 A Yes, sir. 13 Q Check to see if the rifle was bought or stolen? 14 A Yes, sir. 15 Q Okay. 16 being in charge, whether that brown rifle, the brown stock, that 17 JCP was bought or stolen? 18 A It came back negative to being stolen. 19 Q Okay. 20 was -- who the purchaser was? 21 A 22 not, not purchaser. 23 Q 24 not this rifle belonged to Mr. Gonzalez? 25 A So, I mean, that's pretty routine, right? And in this case, did you determine whether or not, And when it -- did it come back also saying where it I was only given information about whether it was stolen or Well, didn't you want to know, respectfully, sir, whether or Not at that point, sir. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 11 of 41554 1 Q At any point in time, did you -- have since found out if, in 2 fact, that brown rifle belonged to Mr. Gonzalez? 3 A Sir, all I can attest to is that that rifle was not stolen. 4 Q Are you telling me you don't know if that rifle belongs to 5 Mr. Gonzalez then? 6 A Based on his statement. 7 Q Based on whose statement? 8 A On Mr. Gonzalez's statement. 9 Q You took Mr. Gonzalez's word that that rifle belongs to him 10 then. 11 A Is that what I understand? Yes, sir. 12 THE COURT: Don't ask him what you understand. That's 13 requiring him to speculate about what you understand. 14 BY MR. GAMEZ: 15 Q 16 respectfully, Mr. Gonzalez's home. 17 determine whether it was stolen or not stolen? 18 A Yes, sir, it was. 19 Q Did you find out who the owner was, being in charge of this 20 case? 21 A No, sir. 22 Q Did you find out when the purchase of this rifle was made? 23 A We were given a time frame by Mr. Gonzalez about when he 24 purchased it. 25 Q Let's look at the .22 caliber, sir, that was in Mr. -Was that rifle checked to Did you check -- have you checked to determine whether that Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 12 of 41555 1 time frame was correct? 2 A No, sir. 3 Q Can you do that? 4 A Yes, sir, it's possible to run an ATF trace through the 5 Bureau of Alcohol, Tobacco, Firearms and Explosives. 6 Q Did you do that here? 7 A Not on those guns, sir. 8 Q What's that? 9 A Not on those weapons, sir. 10 Q So you took Mr. Sergio Gonzalez's word, if I understand 11 correctly, that they belong to him and that he bought them 12 legally? 13 A Yes, sir. 14 Q Now, we have a 270 on May 5th. 15 2011. 16 apartment, and your words were Special Dean -- Special Agent 17 Dean notified him, that's Sergio, that he was involved in a 18 straw purchase. 19 A Can you repeat the quote, sir? 20 Q Yes. 21 Agent Dean, "notified Sergio that he was involved in a straw 22 purchase; that y'all wanted to talk to him." 23 correct? 24 A Yes, sir. 25 Q You didn't say that, did you? Excuse me, December 5th, And I understand that you approached the house or the You didn't say that, did you? "In approaching Sergio Gonzalez," not you, but Special Would that be Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 13 of 41556 1 A No, sir. 2 Q Okay. 3 tell him that there was a straw purse -- I mean your agent tells 4 him that there's a straw purchase made. 5 Sergio Gonzalez what that was? 6 A We didn't get into detail at that point, sir. 7 Q When did you get into detail about explaining to him what a 8 straw purchase was? 9 A So besides saying that there was a complaint, you Now, did you explain to When we had gone back to the FBI office a little later in 10 the evening. 11 Q 12 the 270. 13 casing or -- 14 A I believe I said a camouflage. 15 Q Soft casing? 16 A Hunting or -- correction, a rifle case shaped long-wise, 17 similar to a rifle. 18 Q 19 particular 270? 20 A 21 Spanish, we asked where he had got the weapon. 22 that it had been purchased by his friend Meme, who we identified 23 as Manuel Pena, the day prior on December 5th. 24 Q And did you have any reason to disagree with that? 25 A No, sir. When he showed you the 270, and I believe you said -- we saw It was in a leathery casing, you said, or a leather What does that mean? What did you ask him, if anything, when you saw that Well, going through a translator, because I don't speak And he explained Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 14 of 41557 1 Q Okay. Did you explain to him if that was a straw purchase 2 in your opinion at that point in time? 3 A No, sir. 4 Q So what else was explained about the purchase of the weapon 5 at that time? 6 testified, some 45 minutes. 7 A 8 approach, including securing the location, investigating the 9 weapons, serial numbers, taking photographs, getting the Because you were there, I believe you've 45 minutes from the time when we arrived, including the 10 receipt, so approximately 45 minutes. 11 Q 12 regarding that 270? 13 A 14 was, who was in the house, what other weapons, how he had got 15 the weapon, who he had got it from, and we also asked about the 16 receipt for the 770. 17 Q 18 office? 19 A You mean approximately what time or -- 20 Q How long? 21 A Like I said, it was about 30 to 45 minutes roughly. 22 Q Had you given Mr. Gonzalez his rights? 23 A Not at that point, sir. 24 Q Did you hear him testify that he was afraid? 25 A Yes, sir, I did. What was said to Sergio Gonzalez from the agents or yourself Sir, at that point we were trying to just identify who he And then you -- when did you decide to take him to your FBI Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 15 of 41558 1 Q Do you agree with him? 2 A Do I agree that he seemed afraid? 3 Q Yes. 4 A He seemed concerned, sir. 5 Q Had you accused him of a crime at that point in time at his 6 apartment other than the complaint crime of a firearm outside, 7 using a firearm, exposing a firearm outside? 8 A No, sir, we hadn't accused him of anything. 9 Q You agree with me that it's not illegal to have a rifle 10 outside your apartment? 11 A 12 neighbors if they saw it. 13 Q Sure. 14 A No, sir. 15 Q But Mr. Sergio Gonzalez, if I understand correctly, and 16 correct me if I'm wrong, did he understand that he committed a 17 crime when he did that? 18 A 19 sir? 20 Q 21 this to him, that he may have -- did someone explain to him that 22 he committed a crime? 23 It's not illegal, sir, but it might give some concern to the But it's not illegal? I'm not sure. Well, sure. It's not a crime? Are you asking if I knew what he understood, You're explaining this. THE COURT: Someone is explaining You can ask him if he indicated that he 24 understood, if Sergio Gonzalez indicated, as opposed to asking 25 this witness if Sergio Gonzalez understood him. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 16 of 41559 1 BY MR. GAMEZ: 2 Q 3 agents mean when it was stated to him that they had a complaint 4 on him? Did Sergio understand what you mean or any one of your 5 THE COURT: Speculation. 6 question. 7 BY MR. GAMEZ: 8 Q 9 get to the FBI office? You don't have to answer the Let's get to the FBI agents' office, sir. What time did you 10 A Sir, we got there approximately 6:12. A little after 6:00. 11 Q I believe you said you offered him some water when you got 12 there? 13 A Yes, sir, we did. 14 Q Okay. 15 A Sir, at that point, most of the interviewing was done by 16 Task Force Officer Torriz and ICE Special Agent Roy Castillo 17 because of the -- the fact that Mr. Sergio -- or Mr. Gonzalez's 18 English is very limited. 19 Q 20 interpreters, Spanish interpreters? 21 A Yes, sir. 22 Q Okay. 23 agents or Brownsville PD or agents that were asking the 24 questions in Spanish? 25 A So who took charge at that time? So the questions were given to Sergio Gonzalez by the Now, who was giving the questions to the people -- Special Agent Michael Deans and I both were. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 17 of 41560 1 Q Okay. So Michael Dean and you were in charge of putting 2 your case together? 3 A Yes, sir. 4 Q And the questions were being made by you and Michael Dean? 5 A Yes, sir. 6 Q Do you recall when Mr. Dean says he didn't understand a lot 7 of the -- what was going on because he wasn't -- he didn't speak 8 Spanish? 9 A Deans, sir. Was he mistaken? No, sir, but there was a mixture of translation as well. We 10 would stop every few minutes to regroup and give Albert Torriz a 11 chance to translate. 12 Q 13 correctly now, were in charge of the interrogation of Mr. Sergio 14 Gonzalez? 15 A Yes, sir. 16 Q And the interpreters merely interpreted in Spanish the 17 questions that you or Mr. Dean asked? 18 A Yes, sir. 19 Q So Mr. Dean was right next to you when you asked a question 20 in English? 21 A 22 the table with us. 23 Q A table similar to the one that's behind me? 24 A Yes, sir. 25 Q And he most certainly could hear you when you asked the Yes, sir. In fact, you and Mr. Dean, if I understand As case agents, we were. I can't remember exactly where he was sitting, but he was at Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 18 of 41561 1 question in English? 2 A Yes, sir. 3 Q And you could most certainly hear him, could you not, when 4 he asked a question in English? 5 A Yes, sir. 6 Q So do you have an opinion if one of your agents would have 7 said: 8 Spanish, and he's sitting there, right there asking the 9 questions and listening to you in English. 10 I didn't understand a lot because questions were in Would that be a disingenuous answer? 11 THE COURT: 12 BY MR. GAMEZ: 13 Q 14 answer? You don't have to answer the question. Would you agree that that would be a less than truthful 15 THE COURT: You don't have to answer that question. 16 BY MR. GAMEZ: 17 Q 18 understand everything that was going on right next to you when 19 you were asking questions in English? Would you agree that he may be mistaken that he didn't 20 MR. PONCE: I'm going to object. He's asking this 21 witness to speculate on what another person may or may not 22 believe. 23 THE COURT: Okay. Mr. Gamez, tell me what you're trying 24 to get this witness -- what you're trying to get this witness to 25 tell you. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 19 of 41562 1 MR. GAMEZ: Your Honor, I'm trying to get this witness 2 to tell me the following: Mr. Dean testified that he didn't 3 understand a lot of what was going on or the questions asked 4 because it was in Spanish, when now we know that Mr. Dean was in 5 charge of asking questions as well as Mr. Owen, sitting at the 6 same table, giving directions on what questions to be asked. 7 when Mr. Dean says he didn't know a lot or didn't catch it all 8 would be inaccurate. 9 THE COURT: All right. 10 MR. GAMEZ: Please note my objection, Judge. 11 THE COURT: Sustained. 12 13 14 The objection is sustained. Members of the jury, it's almost 3:00. Let me give you a 20 minute break. During this recess, you are under my admonishment that you 15 must not form or express any opinion about the facts of this 16 case and cannot do so until it has been submitted to you for 17 your deliberation. 18 19 20 21 22 So Thank you. (Jury leaves courtroom) THE COURT: Okay. Thank you. Please be seated. Mr. Ponce, have you decided whether you're going to call any other witnesses? MR. PONCE: That's what we were just discussing just a 23 few seconds ago. We will not be calling those other witnesses, 24 Your Honor. 25 witnesses we have, just be excused. We ask that they just be excused. Whatever other Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 20 of 41563 1 THE COURT: All right. Mr. Gamez, I don't want to keep 2 interrupting you, but I will. 3 that a witness cannot speculate -- for example, you asked him 4 some -- are you -- if I knew what he understood, is what this 5 witness said. 6 You can step down, sir. 7 THE WITNESS: 8 THE COURT: 9 When I'm trying to explain to you Yes, Your Honor. You asked him: committed a crime when he did that? Did he understand that he That's -- you're trying to 10 get this witness to tell you what somebody understood, somebody 11 else, not him. 12 If you ask him what he observed, did he appear to 13 understand, did he say that he understood, that's different. 14 can tell you what he observed or what he heard the witness say. 15 But when you ask him did he understand it, it's like I'm 16 asking -- I'm trying to determine can you understand what I'm 17 saying? 18 whether you've understood. 19 about what he saw, what he heard, what he did. You can tell me you understand, but I don't know So please ask the witness questions 20 MR. GAMEZ: Yes, Judge. 21 THE COURT: Thank you. 22 (Recess taken from 3:00 to 3:25.) 23 (Jury enters courtroom) 24 25 He THE COURT: Thank you. Please be seated. Before we continue, I just want to tell the members of the Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 21 of 41564 1 jury that this is Mallory Beck's last day, my law clerk. 2 never had a piñata, so we just had a piñata party for her back 3 in chambers. 4 but she did it. 5 All right. She So if you see candy, you know, it took a while, Mr. Gamez? 6 BY MR. GAMEZ: 7 Q 8 being had by Sergio Gonzalez, did it appear to you that -- that 9 everything was going along smoothly in the questioning and Mr. Owens, back at the FBI office while the question is 10 answers by Sergio Gonzalez and you and Mr. Dean Owens? 11 me, Dean -- Michael Dean. 12 A Yes, sir, it did. 13 Q Did it appear to you that everybody had a clear 14 understanding of what was going on between Dean, you and Torriz 15 asking the questions and certainly Mr. Sergio Gonzalez? 16 THE COURT: Speculation. Excuse The question being "Did it 17 appear to you that everybody had a clear understanding." That 18 requires him to speculate about what somebody else understood or 19 did not understand. 20 BY MR. GAMEZ: 21 Q 22 about the two firearms that he possessed prior to December 23 the 5th? 24 A 25 least one of them in a pawn shop in the vicinity of Paredes and Sir, what did -- did Sergio Gonzalez -- what did he tell you He told us that he had purchased them in pawn shops, at Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 22 of 41565 1 Alton Gloor in Brownsville. 2 Q Do you know which pawn shop that is? 3 A I know from experience which one I think it is, but he did 4 not name it. 5 Q Which one do you think it is? 6 A I can't remember the name, just the location. 7 Q Do you agree with him that there is a pawn shop there? 8 A Yes, sir, there is. 9 Q You did not go to the pawn shop to check when he purchased 10 the .22, did you? 11 A No, sir. 12 Q And you did not go to the pawn shop when he purchased the 13 270 JCP? 14 A No, we did not check to see if he purchased the JCP there. 15 Q Did you find that that was unnecessary to do so? 16 A At that point in the investigation, it was not -- was not 17 the focus. 18 Q 19 would that be correct? 20 A Yes, sir. 21 Q Would you have any information that those two firearms 22 were -- may have been purchased through a straw purchase? 23 A 24 when we checked. 25 Q Okay. And to this date, you still -- it's not the focus; No, sir. Okay. All I can attest to is that they were not stolen Now, you gave -- did you give us some laws that you Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 23 of 41566 1 were aware of, ATF laws when it came to straw purchase and the 2 Form 4473? 3 training in the purchasing and sale of firearms? 4 A 5 investigation, most of my experience. 6 Q 7 illegality or illegality in this particular case, in this 8 particular set of facts? 9 A Main thing I learned was -- 10 Q Go ahead. 11 A -- the violation of 924(a)(1)(A), which is what we arrested 12 Mr. Pena based on on May 24th. 13 statement on the form that has to be maintained by the FFL or 14 any agency licensed to sell firearms. 15 Q 16 that particular issue? 17 A No, sir. 18 Q Are you aware of any case law that deals with that 19 particular issue? And do you have some education or background and Nothing specific. Most of it came from working this What did you learn from working this investigation as far as That was making a false Did you go over, just if I may ask, any case law regarding 20 MR. PONCE: 21 of questioning. 22 stand. Your Honor, I'm going to object to this line The law comes from the Court, not from the 23 THE COURT: Mr. Gamez? 24 MR. GAMEZ: It goes to my motion for acquittal on this 25 issue, Judge. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 24 of 41567 1 2 THE COURT: This witness, has he been proposed as an expert on the law as a lawyer? 3 MR. GAMEZ: No. 4 THE COURT: I'm going to sustain the objection, if 5 I'm asking him if he knows, Judge. you're asking about case law especially. 6 MR. GAMEZ: Yes. 7 BY MR. GAMEZ: 8 Q You stated that Mr. Pena was a legal permanent resident? 9 A No, sir. I stated Mr. Gonzalez was a legal permanent 10 resident. 11 Q 12 was a legal permanent resident? 13 A Yes, sir. 14 Q And you agree with that? 15 A Do I agree that he made the statement, or do I agree that 16 Mr. Gonzalez is a legal permanent resident? 17 Q 18 that Mr. Gonzalez is a legal permanent resident? 19 agree that Mr. Gonzalez is a legal permanent resident? 20 A Yes, sir, I agree to both statements. 21 Q Do you recall that a legal permanent resident is not a 22 prohibited person from purchasing a firearm? 23 A I can't agree or disagree. 24 Q You asked Mr. Pena a question dealing with Gonzalez, 25 regarding whether Mr. Gonzalez paid Mr. Pena for those firearms, Oh, excuse me. Both of those. You said Mr. Pena stated that Mr. Gonzalez Do you agree that Pena made that statement, And you also Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 25 of 41568 1 did you not? 2 A Yes, sir. 3 Q And did you say that Mr. Pena said that Mr. Gonzalez never 4 really had any money? 5 A Yes, sir. 6 Q Did you determine whether or not Mr. Gonzalez could afford 7 rifles? 8 A No, sir. 9 Q Well, for instance, in the purchase of the December 19th He said he could not afford rifles. 10 second 270 caliber rifle, did Mr. Gonzalez have the money to buy 11 that rifle? 12 A 13 of that purchase. 14 Q 15 money to buy rifles. 16 was true or not, whether Mr. Pena was able to buy his own 17 rifles? 18 A No, sir. 19 Q Mr. Pena had stated to you, did he not, that the rifle, the 20 December 5th rifle he purchased, and he purchased it in his name 21 and that it was for the use of the ranch. 22 A Yes, sir. 23 Q You didn't believe that, did you? 24 A I've never heard of a communal gun. 25 Q Is your answer that you did not believe it? Sir, I'm not sure what his financial state was at the time Well, as per Mr. Pena, stated that Sergio doesn't have any Did you -- did you try to find out if that Was that correct? Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 26 of 41569 1 A No, sir, I did not. 2 Q Okay. 3 check the evidence from one side, just only from your one 4 witness, or do you try to get a full understanding from all the 5 evidence you can acquire to determine the truth and veracity of 6 the witnesses or your case? 7 A We try to get a full understanding, sir. 8 Q Okay. 9 did you go to Mr. Pena's brothers to ask them if they had When you investigate cases, do you make it a habit to So in this case, we know maybe some agent didn't, but 10 contributed for the purchase of this rifle? 11 A No, sir, we did not. 12 Q Any particular reason why you didn't try to verify whether 13 Mr. Pena's statement was true or not true? 14 A 15 to a family member asking details about an alleged crime would 16 have served any purpose. 17 Q Even if it's true? 18 A Even if what's true, sir? 19 Q That the rifle was purchased by Mr. Manuel Pena and that he 20 did so -- and that was the portion of interest for going to the 21 lease from Mr. Sergio Pena. 22 A 23 false statement on the ATF form. 24 25 Well, at that point in the investigation, don't think going Don't you think that's relevant? Well, it's relevant that he purchased the weapon and made a MR. GAMEZ: nonresponsive. Well, Your Honor, I'd object to him being Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 27 of 41570 1 THE COURT: Overruled. 2 BY MR. GAMEZ: 3 Q 4 witness other than Sergio Gonzalez? 5 A Not at that point. 6 Q What about at this point? 7 So you did not feel it was relevant to talk to any other THE COURT: 8 BY MR. GAMEZ: 9 Q Don't argue with the witness. If there is testimony that certain individuals gave money 10 for the purchase of that rifle, would you agree or disagree with 11 that, that rifle being purchased on December 5th, 2011? 12 THE COURT: Unclear question. You don't have to answer 13 it. 14 BY MR. GAMEZ: 15 Q 16 that others may have contributed to the purchase of the 17 December 5th, 2011, 270? 18 A No, sir. 19 Q Did it ever appear to you that at a joint birthday party 20 when Sergio Gonzalez asked about purchasing another rifle, that 21 another individual said: 22 and gave Mr. Gonzalez 60 -- some 50 or $60 for the purchase of 23 that second firearm? 24 25 Did it ever appear to you, sir, from the facts of your case THE COURT: in evidence. Okay. I'll give my half right now, Assumes the question -- something that's not Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 28 of 41571 1 BY MR. GAMEZ: 2 Q 3 and -- about purchasing another firearm, having Manuel purchase 4 another firearm? 5 A Yes, sir, I was. 6 Q Did you know that that was -- did you ever know about those 7 set of facts until today or yesterday? Were you present when Mr. Gonzalez stated that he did ask 8 9 MR. PONCE: referring to? 10 Your Honor, unclear question. Which facts? THE COURT: Okay. What is he At what time? The question is, "Did you ever know 11 about those set of facts until today or yesterday?" 12 specific. 13 proposing to ask him about? 14 BY MR. GAMEZ: 15 Q 16 and his son Junior on or about December the -- six days after 17 you spoke to Pena, the 12th, the 13th -- excuse me, you spoke to 18 Pena. 19 birthday party on the 12th or 13th of 2011? 20 Be more Who has testified about the facts that you're Were you aware of the birthday party of Manuel Pena's nephew You spoke to Mr. Gonzalez. MR. PONCE: Were you aware of that joint Your Honor, I'm going to object. I don't 21 think that the evidence has indicated that there was, in fact, a 22 joint birthday party on the 12th, 13th or the date that he 23 mentions. 24 25 THE COURT: the question. He says talked about a party, so I'll allow Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 29 of 41572 1 THE WITNESS: Sir, based on his testimony, I understood 2 that there was a birthday party in that time frame. 3 BY MR. GAMEZ: 4 Q Yes, sir. 5 Were you aware of that birthday party? THE COURT: 6 BY MR. GAMEZ: 7 Q 8 today. 9 A At what point? Prior to Mr. Sergio Gonzalez's testimony as of yesterday and I was aware there was a birthday party. I can't say whether 10 it was the same one that was testified to today. 11 Q 12 the 18th, all right, for Mr. Pena's son and son-in-law. And that's a fair response, sir. 13 THE COURT: All right. 14 MR. GAMEZ: Okay. There was a barbecue on You can't testify. 15 BY MR. GAMEZ: 16 Q 17 there was a barbecue, from your summaries, your 302s, the day 18 before the purchase of the second firearm? 19 A Yes, sir. 20 Q And that's what your notes reflect? 21 A Yes, sir. 22 Q Were you aware of the other party before, right after the 23 December 6th interrogation of Sergio Gonzalez? 24 of the joint party that took place between the Manuel Pena 25 family and Sergio Gonzalez? Would you agree with me that your evidence will show that Were you aware Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 30 of 41573 1 THE COURT: Asked and answered. You don't have to 2 answer the question. 3 BY MR. GAMEZ: 4 Q 5 asked Mr. Pena and other members about purchasing a second 6 firearm on that particular party right after December the 6th, 7 2011? 8 9 Were you aware -- were you aware of the fact that Sergio THE COURT: Assumes facts not in evidence. You don't have to answer the question. 10 BY MR. GAMEZ: 11 Q 12 Does your written summaries reflect a joint party? THE COURT: All right. That's already been established, 13 Mr. Gamez. If you -- if this witness, as a result of his 14 investigation, can testify that he learned from his 15 investigation that there was a discussion about the purchase at 16 that party, you can ask him that question. 17 BY MR. GAMEZ: 18 Q 19 investigation that Sergio Gonzalez spoke about purchasing a 20 firearm, the second firearm? 21 a 270 caliber rifle? Did you learn from your 302s, your summaries or your Second firearm for the purchase of 22 THE COURT: At which point? 23 MR. GAMEZ: The first party, Your Honor. 24 THE WITNESS: 25 First party, second party? I can't recall specifically which, but I know that Mr. Gonzalez had told us it had been discussed in that Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 31 of 41574 1 time frame. 2 BY MR. GAMEZ: 3 Q 4 refresh your memory? 5 A 6 Mr. Gonzalez, it is more than likely in an ICE OPR report. 7 Q I didn't hear that. 8 A If it was a statement made by Mr. Gonzalez as part of a 9 possible debrief, it would be in an ICE OPR report. Do you have your notes with you? I could check. Would that help you But if it was a statement made by 10 Q Not yours? 11 A No, sir. 12 Q Did your evidence -- does any of your evidence ever reflect 13 any conversations or any evidence from any of the family members 14 of other individuals in the lease with Mr. Manuel Pena? 15 A 16 Mr. Gonzalez had spoken with Mr. Pena's brother Jorge on 17 occasion, but I can't testify as to what the -- what the content 18 of those conversations were. 19 Q 20 Mr. Sergio Gonzalez and Mr. Manuel Pena? 21 A Which recording specifically? 22 Q A recording made on December the 8th. 23 A I was present for that one. 24 Q Okay. 25 phone call to Mr. Pena, or did Mr. Pena make that phone call to I believe I learned from ICE OPR he had possibly spoken -- Were you present when the recordings were made between And do you remember a phone -- did Sergio make that Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 32 of 41575 1 Sergio? 2 A 3 Mr. Pena. 4 Q 5 this phone call at this time? 6 A Yes, sir. 7 Q Okay. 8 purpose of Sergio's call? 9 A That phone call, I believe, was from Mr. Gonzalez to Okay. In other words, you're telling him: Sergio, make Do you remember Mr. Pena telling -- what was the At that point we were still trying to secure the purchase of 10 a second rifle by Mr. Pena. 11 Q 12 your investigation, did your evidence show that Mr. Pena 13 replied: 14 it's, I guess, inaudible or someone wrote whatever they thought 15 they wrote on it. 16 said by Manuel Pena? 17 A 18 Spanish speaker. 19 Q What's that? 20 A I am not a Spanish speaker. 21 Q No, but you can read the English part of it, can't you? 22 A Yes, sir. 23 Q Okay. 24 Jorgillo? 25 A Did -- without telling me what -- what the tapes say from Call Jorge, Jorgillo, I believe. He also -- and then Did you get -- were you there, and was that Based on the translation that I saw, yes. And did Manuel Pena say: As I said, not a Hey, call this guy Yes, he did, or words to that effect. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 33 of 41576 1 Q Okay. 2 A The only person I could think would be a reference to his 3 brother Jorge. 4 5 And who is Jorgillo? THE COURT: Would the witness please specify whose brother? 6 THE WITNESS: Manuel Pena's brother, Your Honor. 7 BY MR. GAMEZ: 8 Q 9 Manuel says call Jorge -- 10 11 Now, at that time when you have Jorge calling Manuel and THE COURT: You've misstated the evidence. You said -- you have Jorge calling Manuel. 12 MR. GAMEZ: Jorgillo, yes. 13 THE COURT: Are you attempting to ask the witness "You 14 have Sergio calling Manuel?" 15 BY MR. GAMEZ: 16 Q 17 December the 8th, 2011, and Manuel replies to Sergio: 18 Jorgillo, which is his brother. 19 your investigation? 20 A 21 investigation. 22 Q 23 important what he meant by call Jorgillo instead of Manuel 24 saying him, call Jorgillo? 25 THE COURT: Sergio called Manuel, and Manuel's reply was to Sergio on Call Did you stop -- is that part of Yes, that phone call recording was part of our Did you then, in your investigation, think that it might be Confusing. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 34 of 41577 1 BY MR. GAMEZ: 2 Q 3 investigation say maybe we need to talk to Jorgillo? 4 mention Jorgillo? 5 A 6 phone calls from Mr. Gonzalez discussing the purchase of the 7 rifle, we continued. 8 Q 9 for the ranch for all? Did you wonder, did you stop to think, did your Why did he Not at that point, because Mr. Pena had already answered Did you ever consider at that time, hey, maybe this is a gun 10 A No, sir. 11 Q For everyone to use? 12 A No, sir. 13 Q Did you ever in your investigation determine why 14 Mr. Gonzalez just wouldn't buy the rifle himself? 15 A 16 permanent resident status and the 90-day requirement that he 17 understood for utility bills to show to an FFL. 18 Q What do you understand the requirements are? 19 A At that time or presently, sir? 20 Q Both. 21 A Presently there is no 90-day requirement for -- for legal 22 permanent residents to show the utilities or the other items 23 mentioned. 24 in April. 25 Yes, sir. Based on statements he made regarding his I believe that changed earlier this year, possibly But at the time, a legal permanent resident, in order to buy Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 35 of 41578 1 a firearm, had to show that, residency in the State of Texas as 2 well as a continuous 90-day or three month utility bills or 3 other type of financial documents. 4 Q What other type of documents? 5 A I know that -- I believe mortgage payments is one of them. 6 Q Would you agree with me, sir, that he could show that he was 7 making a mortgage payment? 8 THE COURT: Would you ask him if he knows? 9 MR. GAMEZ: Yes, I did, Judge. 10 BY MR. GAMEZ: 11 Q 12 payment? 13 A No, I do not. 14 Q Does your investigation show that he owns a home? 15 A Yes, he owns a home based -- on Las Cruces. 16 Q Okay. 17 mortgage payment? 18 A Yes, I did. 19 Q Did you check his -- or did someone for you check his 20 plates, his truck plates? 21 A 22 on the 5th. 23 Q 24 plates? 25 A Do you know whether or not Sergio was making a mortgage And did you hear his testimony that he makes a His license plates, I believe, were run by the BEST agents And did he pay taxes or pay to a government agency for those Yes. If his tags were current, he was -- would have been Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 36 of 41579 1 up-to-date. 2 Q 3 personal property tax bill, his plates for his truck? 4 A I'm not sure which category that falls under, sir. 5 Q Did he have any credit cards with his address on them? 6 A I'm not sure. 7 Q Did you ever tell him in your investigation or determine: 8 Hey, Sergio, you could have bought this yourself, with what 9 you've given me? Would that have been, to the best of your knowledge, a 10 A 11 that he thought his wife could have bought them for him. 12 still was under the impression at that point that he couldn't 13 have bought them. 14 He had mentioned when we debriefed him at the FBI office He Now, I can't testify to whether he could or could not have 15 bought a rifle, just what he told us he thought. 16 Q He thought that his wife could buy it? 17 A He said she could have possibly. 18 Q Okay. 19 could buy? 20 A 21 that she was a citizen. 22 Q 23 bill or any of the other stuff regarding mortgage payments or 24 anything like that, does she? 25 A He wasn't certain. Now, with that in mind, did you check to see if she She's a United States citizen. I believe as part of the investigation, ICE OPR found out Sure. And she doesn't have -- she doesn't need a utility No, sir. Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 37 of 41580 1 THE COURT: Excuse me. Rather than mislead the jury, I 2 think you might want to have the -- him explain whether that's a 3 carte blanche for any U.S. citizen or whether there are 4 exceptions to someone who is otherwise eligible. 5 BY MR. GAMEZ: 6 Q 7 convicted felon? 8 A Mr. Manuel Pena? 9 Q Mr. Sergio Gonzalez. 10 A No, sir. 11 Q And Mr. Gonzalez is not under age? 12 A Can you repeat the question, sir? 13 Q Mr. Gonzalez is not under age? 14 A No, sir. 15 Q He's not incompetent? 16 A No, sir. 17 Q And his wife is not under age? 18 A No, sir. 19 Q And she's not a convicted felon? 20 A No, sir. 21 Q She's not incompetent? 22 A No, sir. 23 Q So would you agree with me that respectively, sir, that 24 United States citizens that are not incompetent and have not 25 been convicted of a felon and they're -- that a United States Mr. Pena, to the best of your knowledge and belief, is not a Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 38 of 41581 1 citizens and they're of legal age can purchase a firearm? 2 A Yes, sir. 3 Q Then with that in mind, let's go back to the 4 December 5th purchase. 5 his firearm? 6 THE COURT: Why would Sergio need Manuel to buy him Speculation. You don't have to answer the 7 question. 8 BY MR. GAMEZ: 9 Q Did you ever ask him that question, sir? 10 A Yes, sir, we did. 11 THE COURT: Now you can ask him what the witness said 12 was the reason as opposed to the way you posed the question 13 without that information. 14 MR. GAMEZ: What was that, Your Honor? 16 THE COURT: Okay. 17 not do it himself. 18 MR. GAMEZ: Yes, Judge, I did. 19 THE COURT: You then after that asked him, "Did you ask 15 I didn't pick that up. 20 him that question?" 21 what the explanation was. 22 MR. GAMEZ: You asked him previously why he did And he answered yes. Now you can ask him Thank you, Judge. 23 BY MR. GAMEZ: 24 Q What was his explanation for it? 25 A Well, according to Mr. Gonzalez, he thought that in order -- Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 39 of 41582 1 as a legal permanent resident or LAPR, he needed to produce his 2 legal permanent resident card or green card, a driver's license 3 with his current address and some sort of utility bill for three 4 months showing -- that matched up addresses with his driver's 5 license. 6 Q 7 have purchased it, purchased that November 5th on his own with 8 his background? Did you explain to him, once he told you that, that he could 9 MR. PONCE: Your Honor, I'm going to object. 10 believe that is the testimony. 11 testimony as testified. 12 THE COURT: I don't He's mischaracterizing the The question is, "Did you ever explain to 13 him," but the -- that assumes that this witness ascertained that 14 he had the 90-day requirement evidence that matched the driver's 15 license, so that's assuming facts not in evidence. 16 BY MR. GAMEZ: 17 Q 18 investigation and determine whether or not Mr. Pena could have 19 purchased that firearm? 20 A No, sir. 21 Q Did you ever tell him: 22 and everything you tell me and everything you've given me and 23 that we have your plates and you have a property tax bill here 24 and you make a mortgage payment, you could have bought that 25 firearm? Did you determine at that time or did you assist in your Hey, Sergio, from what you tell me Did you ever tell him that? Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 40 of 41583 1 A No, sir. 2 We had no reason to. MR. GAMEZ: 3 Excuse me, Judge. Pass the witness, Judge. 4 THE COURT: Mr. Ponce? 5 REDIRECT EXAMINATION 6 BY MR. PONCE: 7 Q 8 Gonzalez had ever mentioned anything about a birthday party that 9 he had gone to where he may have mentioned this to -- the Sir, you were asked by Mr. Gamez about the -- whether Sergio 10 purchase to Manuel Pena. Do you recall that? 11 A Yes, sir. 12 Q And you said it may have been not in a 302, but in an ICE 13 report. Do you -- 14 MR. PONCE: May I approach the witness, Your Honor? 15 THE COURT: Yes. 16 BY MR. PONCE: 17 Q 18 to yourself, that one sentence. 19 May I ask you if this refreshes your memory? Just read that Does this help refresh your memory whether Sergio did, in 20 fact, say something about being at a birthday party for Manuel 21 Pena's son? 22 A Yes, sir, it does. 23 Q And when is it that -- that he was -- was it this birthday 24 party for Manuel's son, at least the way he told it to y'all? 25 A According to what Mr. Gonzalez told ICE OPR, the birthday Case 1:12-cr-00472 Document 105-3 Filed in TXSD on 01/22/13 Page 41 of 41584 1 for Mr. Pena's son was the night prior, so that would have been 2 the 18th of December. 3 Q The -- what -- 4 MR. PONCE: May I approach, Your Honor? 5 THE COURT: Yes. 6 BY MR. PONCE: 7 Q 8 18th then, correct? 9 A Yes, sir. 10 Q Of December? 11 A Yes, sir. 12 Q Okay. 13 Pena if he agreed to -- to purchase that rifle for him? 14 A Yes, sir, he did. 15 Q Did he tell him why he wanted him to -- why he wanted or was 16 asking Manuel Pena to purchase that rifle for him? 17 A Yes, sir, he did. 18 Q What is that? 19 A Mr. Gonzalez told Mr. Pena that Mr. Gonzalez believed he was 20 unable to purchase a weapon due to the fact that Mr. Gonzalez's 21 name was not listed on the utility bills and did not match 22 Mr. Gonzalez's driver's license. 23 Q 24 that -- that second weapon; is that correct? 25 A At least according to Mr. -- Mr. Sergio Gonzalez, the Did -- in that party, did -- did he again ask Manuel And that was the day before the actual meet to purchase Yes, sir, it was. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 1 of 41 585 1 Q You were asked about the -- the -- you were asked about 2 whether on the December the 5th, December the 6th, y'all had 3 gotten together and discussed a -- an approach or a plan to get 4 in. 5 A Yes, sir. 6 Q Now, in your line of work, do you-all always at least try to 7 do some preliminary -- some preliminary preparation when you're 8 going to go to a certain location to speak to someone or arrest 9 someone or perhaps conduct surveillance? Do you remember that? 10 A Yes, sir, we generally do. 11 Q Why is that? 12 A Well, sir, it eradicates a lot of confusion. 13 knows what their role is in the operation, and a huge portion of 14 it for officer safety and civilian safety in the area. 15 Q 16 wise to have a plan as opposed to just no plan at all? 17 A Yes, sir. 18 Q Did you at least make efforts to speak to or have us speak 19 to Jorge Pena, the brother of the defendant? 20 A Yes, sir, we did. 21 Q And did you make or try to make an appointment to have him 22 come by and talk to you or us? 23 A Yes, sir. 24 Q And did -- by the way, who's Jorge Pena? 25 A Sir, Jorge Pena is the defendant Manuel Pena's brother. Okay. Everybody So that was at least -- is it, I guess, in a sense Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 2 of 41 586 1 Q What does he do? 2 A Sir, I believe he's a Border Protection agent. 3 Q Also? 4 A Yes, sir, he's in Border Protection. 5 Q Did he agree to or at least let you know that, yes, he was 6 going to come and talk to you and perhaps us too? 7 A Yes, sir. 8 Q Okay. 9 that? Or not also, but Border Protection? I spoke with him telephonically. And did you set up an appointment then because of 10 A Yes, sir. It was for 3:30 in the afternoon I believe last 11 Thursday. 12 Q Did you -- did -- did he show up? 13 A No, sir, he did not. 14 Q Did he call when he didn't show up at that point in time? 15 A No, sir. 16 secretaries to see if anybody had left a message at our office, 17 and no one had, at least not a message for me. 18 Q 19 time set for showing up? 20 A Yes, sir, I did. 21 Q Did you select the time, or did he select the time? 22 A Sir, he selected it. 23 Q And did you wait for him to show up? 24 A Yes, sir. 25 Q Ten minutes? And I also checked with the FBI office, our By the way, did you try to accommodate him in terms of the I waited at the U.S. Attorney's office for him. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 3 of 41 587 1 A No, sir. It was longer. 2 Q 15 minutes? 3 A Sir, it was longer than 15 minutes. 4 Q 20 minutes? 5 A It was approximately 45 minutes. 6 Q Did you -- did he show up? 7 A No, sir, he did not. 8 Q Did you then try -- did he call you or leave a message for 9 you as to why he didn't show up? 10 A No, sir, he did not. 11 Q Did you then reach out to try to find out? 12 A Yes, sir. 13 same afternoon and left a voice mail message for him, first of 14 all, seeing if he was all right; and second of all, saying sorry 15 we missed him at the appointment. 16 Q 17 and talk to him? 18 A Yes, sir, we did. 19 Q Did he ever return your call? 20 A No, sir, he did not. 21 Q To this day? 22 A No, sir. 23 Q I mean, to this day he has not returned your call? 24 A I am not aware of any messages for me from him, sir. 25 Q You did say that the FBI office where -- well, you talked to I called him after I returned to the office that And did he -- in addition to that, did you still want to try Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 4 of 41 588 1 Manuel Pena on the -- on May 24th, correct, of this year? 2 A Yes, sir. 3 Q And that's at the FBI office here in Brownsville, Texas? 4 A Yes, sir, it is. 5 MR. PONCE: I have nothing further, Your Honor. 6 THE COURT: Mr. Gamez? 7 RECROSS-EXAMINATION 8 BY MR. GAMEZ: 9 Q Sir, did I understand you said you tried to get ahold of 10 Manuel Pena's brother? 11 A Yes, sir. 12 Q Did you do this during your investigation? 13 A Sir, what are you considering the parameters of the 14 investigation? 15 Q 16 was arrested? 17 complaint and arrested him? 18 A No, sir. 19 Q You did it after he was already arrested and indicted? 20 A Yes, sir. 21 Q Okay. 22 facts in evidence. 23 do use hypotheticals in your business and training, right? 24 A At times, sir. 25 Q Here's a hypothetical. Okay. Did you do it before the -- you indicted him and he Not you indicted him, before you issued your Now he comes to you, if we can assume these were I'm going to give you a hypothetical. You His brother comes to you and says: Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 5 of 41 589 1 It's a community rifle. 2 the family made payments, and there's no way that he gets to 3 keep that rifle, Sergio Pena keeps that rifle. 4 with us for this year and next year. 5 him? 6 7 THE COURT: question. I made some payments or someone else in All right. That rifle stays Would you have believed I'm not going to allow that You don't have to answer it. 8 MR. GAMEZ: No further questions, Judge. 9 MR. PONCE: Your Honor, we have nothing further. 10 THE COURT: All right, sir. 11 12 Thank you. You may step down. What says the government? MR. PONCE: Your Honor, at this time other than before 13 we make our final announcement, I would formally move to admit, 14 if we haven't done so, No. 29, 29A and B. 15 defense counsel about this concerning we have done the necessary 16 corrections on it to reflect 12/6 and 12/7 as the recordings, 17 Your Honor, because I believe what we had first was -- 29, we have talked to 18 THE COURT: Are you talking about 29C? 19 MR. PONCE: Yes, Your Honor. 20 21 22 23 24 25 May we -- may I approach? May we approach so we can just show the Court what I mean? THE COURT: I know that 29A and B have been admitted, but you mentioned something about 29C. MR. PONCE: No. Oh, no. Well, 29C, no. I'm talking about 29, the CD itself containing the audio of 29A and 29B. THE COURT: All right. I think it's already been Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 6 of 41 590 1 admitted. 2 MR. PONCE: I wasn't sure. 3 MR. GAMEZ: Your Honor, we would ask that 29C as well be 4 admitted, being the same facts, the same dates, the same Manuel 5 Pena, the same -- 6 THE COURT: All right. I think -- you don't have to 7 testify about it. 8 think that there was a question as to one phrase on the first 9 page. 10 I'm aware of what the contents were. But I Did you verify it or -MR. PONCE: Yes, Your Honor. And, in fact, we would 11 move to admit 29C and ask that -- that 29C be played at this 12 time then. 13 that, we would -- 14 15 MR. GAMEZ: THE COURT: December 8th? 18 19 If that's the one that states Jorge knew, Okay. It's the conversation recorded on That's 29C? MR. PONCE: That is -- 29C is December the 8th, Your THE COURT: You're making -- the government makes the Honor. 20 21 offer of 29C without objection? 22 MR. GAMEZ: Yes. 23 THE COURT: Admitted. MR. PONCE: Yes, Your Honor. 24 25 And with Judge, yes. 16 17 I mean that the audio be played for that. Then you may play it for the jury. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 7 of 41 591 1 MR. GAMEZ: Are they going to reopen, Judge? 2 THE COURT: They've not rested. 3 (Tape playing.) 4 MR. PONCE: 29, 29A, B and C, Your Honor. 5 THE COURT: Are admitted. 6 MR. PONCE: May I approach the board? 7 THE COURT: Yes. 8 then insert something. 9 MR. PONCE: Okay. Mr. Ponce, you can't erase and You're not a witness. No, Your Honor, I -- that was my number that 10 I had written up there. I just made very sure that it was an 11 eight. 12 something the witness wrote, Your Honor. 13 do that. It didn't appear that it was an eight. It wasn't I realize that I can't 14 THE COURT: All right. 15 MR. PONCE: Your Honor, with that, the government 16 will -- will rest at this time. 17 THE COURT: What says the defendant? 18 MR. GAMEZ: We have a motion before the Court. 19 THE COURT: All right. Members of the jury, at this 20 time you will be in recess momentarily. 21 you're still under my admonishment that you must not form or 22 express any opinion about the facts of this case and cannot do 23 so until it has been submitted to you for your deliberation. 24 Thank you. 25 (Jury leaves courtroom) During this recess Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 8 of 41 592 1 THE COURT: All right. Mr. Gamez? 2 MR. GAMEZ: Your Honor, if I may submit a handwritten 3 motion for acquittal with some case law, Judge, on the issue of 4 straw purchase, Your Honor. 5 that we have -- and I asked so many questions dealing with the 6 eligibility of Sergio Gonzalez, Judge, and there was a reason 7 for that. 8 purchase a firearm. 9 issues were not pertinent, but I wanted to make it clear to the What we have alleged, Judge, is I had to show that he is an eligible person to And the issue of driver's license or other 10 Court that he's a resident alien and an eligible person to 11 purchase a firearm. 12 If the Court would look at the case, which is a Fifth 13 Circuit case, Judge. 14 Polk. 15 was a businessman, and he made several purchases that the 16 government alleges to have been a straw purchase. 17 convicted, Judge, in an Eastern District of Texas, part of 18 Texas, I believe. 19 And it's United States of America versus And in that case, Judge, being a 1997 case, Judge, Polk And he was Maybe possibly Tyler, Judge. The defendants appealed. And in that particular case, 20 Judge, they argued that the evidence did not support a 21 conviction. 22 the purchase of a firearm through false and fictitious 23 statements arising from defendant's purchase of a firearm 24 through an informant. 25 licensed firearms dealer that he was a true purchaser of the He was accused in Count 6 of aiding and abetting They falsely informed a federally Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 9 of 41 593 1 2 weapons. So they threw in aiding and abetting on that count here, and 3 that's Count 6, Judge. 4 case in its entirety and held the following, Judge. 5 In that case, the Court reviewed the That Polk argues that the actual purchase at a store, which 6 wasn't Academy, but it was Liberty Sports, were not straw 7 purchases because Polk, who's a person who had someone else buy 8 his firearms, I believe Davidson, were not straw purchases 9 because Polk had every right to purchase the firearms. 10 not an unlawful purchaser through Davidson, all right? 11 He was The government argues as here, Judge, that Davidson 12 purchases were, in fact, straw purchase transactions because 13 notwithstanding the fact that Polk had lawfully purchased the 14 firearm, Davidson falsely informed a federal licensed firearm 15 dealer that he was the true purchaser of the weapons. 16 into the true purpose issue. 17 They go And then we look at the Fifth Circuit, Judge, interpretation 18 of 1997 case that says: Look, the statute compels the 19 conclusion and criminalizes false statements that are intended 20 to deceive firearm dealers with respect to facts material to 21 purchase a firearm directly. 22 does not attach. 23 possible to keep -- the purpose of the statute, the intent of 24 the statute was to keep firearms out of the hands of those not 25 legally entitled to possess them because of age, criminal The holding: Liability under a straw purchase The purpose of -- was to make it Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 10 of 41594 1 background, or incompetency. 2 Congress to control the ease with which criminals may acquire 3 firearm -- firearms, Judge. 4 And it was intended in the goal of What it says here, so long as it seems to imply -- so long 5 as he's a legitimate person that is not prohibited to have a 6 firearm, that that is not considered a straw purchase. 7 And they go on on other cases, Judge. I believe there's a 8 Louisiana case goes -- on intent. There's another Louisiana 9 case, and that case I believe is Williams, Judge. I believe 10 Your Honor has it. 11 sure I've got that correct here, Judge. 12 guns and purchased them. 13 them under the same thing, for another person who was 14 legitimate. 15 driver's license. 16 Where a lady by the name of -- let me make A person bought two And the guy who bought them, bought But he couldn't buy them because he didn't have a And that Louisiana case in Shreveport said: Look, the 17 persons are eligible to buy. 18 statute is we don't consider that a straw purchase so long as 19 it's an eligible person. 20 the way I understand that case as well and persons that are not 21 eligible. 22 The theory behind even their We're talking about crime, and this is So on that count that he's accused of, following the Fifth 23 Circuit 1997 case, we're asking Your Honor for an acquittal 24 based on the evidence, because our evidence shows that -- on the 25 record, Judge, our evidence shows -- where's the motion? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 11 of 41595 1 Our evidence shows that the buyer was not -- neither buyer 2 was under indictment or information for a felony or a crime for 3 which a judge could sentence him through incarceration for more 4 than a year. 5 or crime for which a judge could have sentenced either Sergio 6 Gonzalez or Mr. Pena to incarceration for more than a year. 7 Neither one, Sergio nor Mr. Pena, were a fugitive from justice. 8 Neither one were unlawful users or addicted to marijuana, 9 depressive stimulants. 10 That neither individual was convicted of a felony Neither one of these individuals have been adjudicated as mentally defective. 11 THE COURT: Okay. 13 MR. GAMEZ: Your Honor? 14 THE COURT: You just told me that the -- that you're 12 15 16 17 18 19 20 What else are you pointing to about that? reciting a series of facts. MR. GAMEZ: That there is no evidence. Not our burden. That there is no evidence from the government. THE COURT: But they're not required to disprove a negative. MR. GAMEZ: That Sergio or Sergio Gonzalez, for the 21 record, or Manuel Pena were not prohibited persons to purchase a 22 firearm, Judge. 23 clear, this Fifth Circuit Louisiana case, that this is not a 24 straw purchase, does not attach. 25 4473 on there, Judge. And that being the case, the case is pretty And it even cites the Form Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 12 of 41596 1 THE COURT: All right. You haven't given me the facts 2 of the case that you started off discussing and that you were 3 reading the reasoning of the Fifth Circuit for. 4 facts? What were the Since it's sufficiency of the evidence -- 5 MR. GAMEZ: That was the argument. 6 THE COURT: Since it was a sufficiency of the evidence 7 decision, tell me in what way -- what are the evidence or what 8 are the facts that are similar to this case such that you 9 believe the government has failed in its burden of proof? 10 MR. GAMEZ: It was a multi-count indictment, Judge. 11 THE COURT: I'm not asking about the counts. What are 12 the facts as to the aiding and abetting count that was reversed, 13 according to you? 14 MR. GAMEZ: The indictment, Judge. The facts were that 15 Polk aid and abetted, Judge, to purchase a firearm. 16 false and fictitious statements, Judge, made and purchased 17 firearms through Davidson, and Davidson was an individual who 18 bought, from what I understand, some 43 guns besides explosives 19 and other -- the bomb other -- 20 21 22 23 24 25 He, through THE COURT: The buyer was somebody was the name of MR. GAMEZ: Yes, and he was buying them for Polk in this Davis? case we have. THE COURT: So Davis was the one who filled out the form that you're referring to? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 13 of 41597 1 MR. GAMEZ: Through a straw purchase. 2 THE COURT: So that -- 3 MR. GAMEZ: Alleged. 4 THE COURT: The allegation. And then the evidence, 5 government's evidence in that case was that he was not the true 6 buyer, but it was somebody by the name of Polk? 7 MR. GAMEZ: Yes. That the buyer -- the government 8 alleged a buyer, involved a buyer making a false statement about 9 the true purchaser of the weapons, exactly as here. 10 THE COURT: Okay. So tell me, in what way are you 11 saying that the -- the evidence the Fifth Circuit based its 12 decision on is similar to this one? 13 MR. GAMEZ: If you go by the government's argument, Your 15 THE COURT: The evidence, please. 16 MR. GAMEZ: You go from the evidence of the government's 14 Honor -The evidence. 17 argument. If you go from the government's evidence, that is, 18 quote, the buyer was Manuel Perez Pena, and Manuel Pena bought 19 it for Sergio Gonzalez. 20 Sergio Gonzalez, then Manuel Pena and -- according to the Fifth 21 Circuit, Manuel Pena and Sergio Gonzalez, even if they were 22 charged for aiding and abetting a straw purchase, they would not 23 be found guilty for insufficient evidence because -- or making a 24 false statement under the Form 4473 because Manuel could have 25 bought a firearm for Sergio Perez as Davidson bought it for If Manuel Pena even did buy it for Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 14 of 41598 1 Polk. And that straw purchase ideology does not attach because 2 they were both eligible buyers. 3 THE COURT: All right. 4 MS. BETANCOURT: In response? Your Honor, I'm not aware of 5 Mr. Gamez's case law. He has not provided a cite, nor has he 6 provided the cases, but it sounds as if in 1997 they charged 7 some type of offense that we would now consider transfer to a 8 prohibited person. 9 of Section 924(a)(1)(a)(b) which talks about knowingly violating That would be the second section exception 10 the subsections that have to do with sell or transferring a 11 firearm to a person who's been a fugitive from justice or has 12 been convicted of a crime for imprisonment more than a year 13 or -- 14 THE COURT: Okay. Excuse me just a second. Mr. Gamez, 15 your argument, I assumed, was based on the same statute that 16 this indictment alleges or uses as a -- as a basis for the 17 accusation. 18 MR. GAMEZ: We inadvertently used the statute that the 19 case held, which was 922, which I understand is the aiding and 20 abetting, Judge, portion of it. 21 statement should be the same. But the facts of making a false 22 THE COURT: Aiding and abetting as to which crime? 23 MR. GAMEZ: The purchasing of the firearm. 24 THE COURT: What statute? 25 MR. GAMEZ: They used 922, Judge. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 15 of 41599 1 MS. BETANCOURT: Your Honor -- 2 THE COURT: Which section? 3 MR. GAMEZ: They used, Your Honor -- 4 THE COURT: Because this is charged under 924(a)(1)(A). 5 MR. GAMEZ: Yes, and this is section, the aiding and 6 abetting Section 922 -- find it right here, Judge. Nine -- 18 7 USCA 922(a)(6), which is a conviction of aiding and abetting the 8 purchase of firearm. 9 THE COURT: All right. 10 MR. GAMEZ: The logic -- 11 THE COURT: I'm not going to say anything. 12 MR. GAMEZ: The logic and reasoning, Judge, goes down to 13 14 You've got -- well, anyway -- Go ahead. that 4473. THE COURT: But there has to be an underlying statute 15 that is the same one, and I think that that's what I see. 16 in any event, I deny the motion for acquittal. 17 MR. GAMEZ: Please note my objection, Judge. 18 THE COURT: All right. 19 20 21 Please bring in the jury. (Jury enters courtroom) THE COURT: Thank you. Please be seated. Mr. Gamez? 22 MR. GAMEZ: Yes, Judge. I would call Jorge Pena. 23 THE COURT: Have all your witnesses been sworn? 24 MR. GAMEZ: Yes, Judge. 25 THE COURT: All right. Mr. Gamez, call your next But Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 16 of 41600 1 witness. 2 MR. GAMEZ: Mr. Jorge Pena, Judge. 3 THE COURT: He's not available. 4 MARSHAL: 5 MR. GAMEZ: 6 MARSHAL: 7 MR. GAMEZ: Yes, sir. 8 THE COURT: Call the next witness. 9 MR. GAMEZ: Rafael Pena, Judge. 10 THE COURT: Call the next witness. 11 Call the next witness. Your Honor, he's coming upstairs right now. Rolando Pena. Rolando? Sir, have a seat in the witness chair. Sir, when you speak 12 into the microphone -- I mean when you're answering questions, 13 please speak into the microphone. 14 THE WITNESS: 15 (Nod indicated.) RAFAEL PENA, 16 the witness, having been previously duly cautioned and sworn to 17 tell the truth, the whole truth and nothing but the truth, 18 testified as follows: 19 DIRECT EXAMINATION 20 BY MR. GAMEZ: 21 Q Please state your full name. 22 A Rafael Pena. 23 Q Mr. Pena, how old are you? 24 A I'm sorry? 25 Q How old are you? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 17 of 41601 1 A 39-years-old. 2 Q Where do you live? 3 A In Brownsville, 125 Cuba Street. 4 Q Are you single, married? 5 A I'm married. 6 Q How long have you been married? 7 A Going on 18 years. 8 Q Any children? 9 A Three boys. 10 Q How old are they? 11 A 14, 8 and 7. 12 Q What do you do for a living? 13 A I work for Customs and Border Protection, officer. 14 Q Where are you assigned? 15 A Here in Brownsville. 16 Q How long have you been a CBPO? 17 A Going on eight years. 18 Q Sir, you're under oath. 19 A Yes, sir. 20 Q Do you know what that means? 21 A Yes, sir. 22 Q What does that mean? 23 A To say the truth. 24 Q And I've asked you to do so as well, have you not? 25 A Yes, sir. Do you understand that? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 18 of 41602 1 Q You understand that if you say a lie, you could possibly 2 face perjury? 3 A Yes, sir. 4 Q Even if it's your brother, I'm asking you to tell the truth. 5 A Yes, sir. 6 Q Would you do that, sir? 7 A Yes, sir. 8 Q How old did you say you were? 9 A 39. 10 Q Your brother -- who's Manuel Pena? 11 A My brother. 12 Q How old is he, if you know? 13 A 38. 14 Q So he's your younger brother? 15 A Yes, sir. 16 Q Are you the oldest? 17 A Yes, sir. 18 Q How many brothers are there? 19 A It's five of us, five. 20 Q Is Manuel Pena also a Customs Border Protection officer? 21 A Yes, sir. 22 Q Okay. 23 Pena. 24 you understand? 25 A Now, I'm not going to ask you anything about Manuel What I'm going to ask you is questions on the lease. Yes, sir. Do Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 19 of 41603 1 Q The ranch. Do you understand? 2 A Yes, sir. 3 Q And Sergio Gonzalez. 4 A Yes, sir. 5 Q Okay. 6 be very limited. 7 A Yes, sir. 8 Q All right. 9 A Yes, sir. 10 Q A deer lease? 11 A Deer lease. 12 Q And where is this lease located at? 13 A Rio Grande City. 14 Q And where is Rio Grande City at, do you know? 15 A It's about -- it's west of McAllen. 16 far. 17 Q A little past Mission? 18 A Past Mission, yes. 19 Q Okay. 20 A Past La Joya. 21 Q So maybe 120 miles from Brownsville? 22 A From Brownsville. 23 Q Okay. 24 A Me personally, two years. 25 Q Your brother, is he the one on the lease? Do you understand? Now -- or if I ask you any questions on it, it will Do you understand? Do you belong to a lease? I don't know about how And how long have you had that lease? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 20 of 41604 1 A Yes, sir. 2 THE COURT: Classify which brother. 3 BY MR. GAMEZ: 4 Q Manuel Pena. 5 A Manuel Pena, yes, sir. 6 Q And I stand to be corrected because there's only one person 7 that's the main person on that lease for the Pena brothers; is 8 that correct or incorrect? 9 A Yes, sir. 10 Q And who's the main person on that lease? 11 A Manuel Pena. 12 Q And he's entitled to bring guests, is he not? 13 A Yes, sir. 14 Q Okay. 15 A One guest. 16 Q Only one? 17 A Yes, sir. 18 Q So if you go and your five brothers go, can you-all stay on 19 the lease? 20 A We can stay at the camp in the lease. 21 Q Can you bring your children? 22 A Yes, sir. 23 Q Okay. 24 A Two. 25 Q And a guest. Yes, sir. And how many guests can hunt if he brings guests? But if -- how many can actually hunt? Manuel Pena and a guest. And who will decide who that guest is? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 21 of 41605 1 A Manuel. 2 Q Okay. 3 lease? 4 A Yes, sir. 5 Q And this was where I stand to be corrected. 6 to be on that lease? 7 A Yes, sir, we all pitch in. 8 Q Okay. 9 A I give the money to my brother Manuel. 10 Q Okay. 11 pay to be on that lease? 12 A I want to say it's about 975 -- 13 Q Okay. 14 A -- dollars. 15 Q So Manuel Pena has to give that money to who? 16 A To Guillermo Serrata. 17 Q Who? 18 A Guillermo Serrata. 19 Q That would be a guy by the name of Willie? 20 A Willie, yes. 21 Q Okay. 22 are there on that deer lease, if you know? 23 A I don't know. 24 Q Were you outside when I was discussing that with -- how much 25 money had to be paid to Mr. Serrata for the lease? And does Manuel, if you know, pay to be on that You don't pay But do you pay the actual owner to be on that lease? That's fair. And how much totally do you-all have to Now, how many hunters, what we call the main hunters Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 22 of 41606 1 A Yes, sir. 2 Q And do you know how much money has to be paid to Mr. Serrata 3 for the lease? 4 MS. BETANCOURT: Objection, Your Honor. This is going 5 to call for hearsay. It also seems to be a violation of the 6 rule if he was out there discussing with -- in front of this 7 witness what the testimony of another witness would be. 8 MR. GAMEZ: I'm asking if he knows, Judge, what -- 9 THE COURT: Can you clarify whether -- well, this is 10 something that I would have to take up with Mr. Gamez. 11 you're trying to get the witness to refresh his memory about a 12 conversation in a group of witnesses, would you please clarify 13 in your question whether this was done before or after the 14 rule -- the witnesses were placed under the rule? 15 BY MR. GAMEZ: 16 Q 17 anyone; am I correct? 18 A Yes, sir. 19 Q And did I ask you or -- about how much the lease was? 20 A Yes, sir. 21 Q Do you know? 22 A Yes, sir. 23 But if You were placed under the rule not to discuss this case with THE COURT: 24 BY MR. GAMEZ: 25 Q Okay. But -- If you don't know, don't tell us. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 23 of 41607 1 THE COURT: But you haven't said whether this was before 2 or after the witnesses were placed under the rule. 3 BY MR. GAMEZ: 4 Q 5 this case? 6 A I don't understand that question. 7 Q The Court gave you information not to discuss this case. 8 A I believe so. 9 Q Yes. 10 A No, sir. 11 Q Okay. 12 A Yes, sir. 13 Q For how long? 14 A Just a couple minutes. 15 Q Okay. 16 everybody? 17 A No, sir. 18 Q Have I ever asked you to say anything in front of everybody? 19 A No, sir. 20 Q Did you tell anyone to say anything to anyone after the 21 Court told you to don't discuss this case with anyone? 22 A No, sir. 23 Q Okay. 24 brother, did you make payments to anyone else for the lease? 25 A Were you placed on the rule already as far as not discussing Did you discuss this case among yourselves? Did you discuss this case with me? Did I ever tell you what to say in front of Now, other than payments that you made to your No, just to my brother. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 24 of 41608 1 Q Okay. Now, in the -- I believe you testified you were there 2 for two years? 3 A Yes, sir. 4 Q Okay. 5 you make to your brother? 6 A 7 hunting, for -- 8 Q 9 lease? Now, in those two years, what kind of payments would We pay for the lease and for supplies for the -- for Okay. And in 2011, sir, did you -- were you part of the 10 A Yes, sir. 11 Q What kind of payments would you make? 12 A Just for the same, for the lease and for whatever we needed 13 for the lease also. 14 Q Okay. 15 A Whatever supplies we needed. 16 Q Did you-all make a blind? 17 A Yes, sir. 18 Q Okay. 19 A Two. 20 Q Okay. 21 lease? 22 A Yes, sir. 23 Q Did he go on the ranch lease at least two years? 24 A Yes, sir. 25 Q Did he go on those two years that you were part of the How many blinds did y'all make? Did Sergio -- was Sergio Gonzalez a guest on the Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 25 of 41609 1 lease? 2 A Yes, sir. 3 Q Okay. 4 expenses of the -- of the lease? 5 A Yes, sir. 6 Q Did he lay out some money or give some money? 7 A Well, he provided one of the blinds as payment. 8 Q Okay. 9 A And -- 10 Q Was it made across the border, one of the blinds? 11 Do you know if Sergio Gonzalez participated in the THE COURT: 12 knowledge of. 13 BY MR. GAMEZ: 14 Q 15 made in Mexico? He has to testify about what he has personal Do you know whether or not Sergio assisted in a blind being 16 THE COURT: He has to have personal knowledge. 17 BY MR. GAMEZ: 18 Q Do you know? 19 A I don't know. 20 Q Do you have -- you do not know. 21 Okay. Do you know if Sergio -- did you contribute to 22 feeders? 23 A Yes, sir. 24 Q Do you know if Sergio contributed to feeders? 25 A I think so. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 26 of 41610 1 Q Okay. 2 you ever discuss with your brothers about the purchase of a 270 3 firearm? 4 A Yes, sir. 5 Q Okay. 6 you first discussed the purchase of a 270 firearm? 7 8 Do you know anything about a -- did you-all -- did Now, who was -- who was present when you discussed, MS. BETANCOURT: Your Honor, I'll object. and misleading to the jury. 9 THE COURT: That's vague There's no time context. Please be -- when you say -- he's trying to 10 get a time, but -- so I'll allow the question. It's overruled. 11 BY MR. GAMEZ: 12 Q 13 time, but the date or on or about date when you first discussed 14 the purchase of a 270 firearm? 15 A I believe it was October, November, something like that -- 16 Q Okay. 17 A -- of 2011. 18 Q And this was before -- right before the deer season? 19 A Yes, sir. 20 Q That's the first time you tell me that; would that be 21 correct? 22 A Yes, sir. 23 Q Okay. 24 A I -- I gave some money to my brother. 25 Q Which brother? Do you remember the time that you first -- maybe not the Now, sir, did you buy that 270? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 27 of 41611 1 A Manuel Pena. 2 Q And you gave some money to purchase what? 3 A A 270 rifle. 4 Q Was that going to be your 270 rifle? 5 A For everybody. 6 Q And who is everyone? 7 A The guests on the lease. 8 Q Okay. 9 everyone? And that rifle was going to be the -- for the use of 10 A Yes, sir. 11 Q But you understood Manuel Pena bought it, your brother? 12 A Yes, sir. 13 Q Did you understand that he owned it? 14 A It's -- well, since we were all pitching in, we believed it 15 was for everybody. 16 Q Yes, but you -- does that mean you-all could use it? 17 A Yes, sir. 18 Q But you understand he bought it? 19 A Yes, sir. 20 Q And he signed for it and he owned it? 21 A Yes, sir. 22 Q But you understood that you could use it? 23 A We could use it. 24 Q How much did you pitch in, sir? 25 THE COURT: Okay. Now you're going to have to get Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 28 of 41612 1 specific since -- are you talking about the rifles named in the 2 indictment or some other rifles? 3 BY MR. GAMEZ: 4 Q 5 you pitch in? 6 A Yes, sir. 7 Q And how much did you pitch in, sir? 8 9 The first rifle that was purchased on December the 5th, did MS. BETANCOURT: line of questioning. Your Honor, I'm going to object to this There's no information from this witness 10 that he has any knowledge about that December 5th sale. 11 has not been established. 12 THE COURT: That's what I was trying to get you to 13 connect, Mr. Gamez. 14 you never got a specific. 15 BY MR. GAMEZ: 16 Q Do you remember when the first firearm was purchased? 17 A I don't remember. 18 Q Okay. 19 That You said, "When was the first time," but If -- THE COURT: Okay. If you can establish that there 20 was -- before December 5th there were no guns on the lease and 21 that, therefore, this gun, when you say first, is the first gun 22 that was ever taken to the -- bought for and taken to the lease 23 or for the purpose of taking to the lease, I'll allow that line 24 of questioning, but it's otherwise not clear. 25 BY MR. GAMEZ: Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 29 of 41613 1 Q Okay. Sir, did you take your -- a firearm that you owned 2 for the lease? 3 A Yes, sir. 4 Q Okay. Did everyone take a firearm, a rifle to the lease? 5 MS. BETANCOURT: 6 "everyone" being vague. Your Honor, I'm going to object to 7 MR. GAMEZ: Everyone in your party. 8 THE COURT: I'll allow you to specify who you're talking 9 about. 10 BY MR. GAMEZ: 11 Q Everyone in your party. 12 A Some, some. 13 Q Okay. 14 A Yes, sir. 15 Did some people not have a rifle? MS. BETANCOURT: I'm going to object. They're vague. 16 We have -- the jury has no idea who everyone is or who he's 17 speaking of. 18 MR. GAMEZ: Your Honor, I believe the jury does know. 19 THE COURT: You can bring it out on cross. 20 BY MR. GAMEZ: 21 Q 22 that additional rifles were needed? 23 A Yes, sir. 24 Q Do you know why additional rifles were needed? 25 A Because not everybody had a rifle, so we needed for -- At some time did you and your brothers and Sergio determine Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 30 of 41614 1 Q Do you know if everyone -- if you know, could everyone 2 afford to buy a rifle on their own? 3 A I don't know. 4 Q How did you-all determine to buy a rifle? 5 A By -- between everybody pitching in to buy a -- everybody in 6 our party, in our -- 7 Q And who is everybody? 8 A My brothers and Sergio. 9 Q Sergio also? 10 A Yes. 11 Q Did you-all consider Sergio a friend or part of the family? 12 A Yes, sir, part of the family. 13 Q Why did you consider Sergio part of the family? 14 A We've known him for many years. 15 Q How have you known Sergio? 16 A Through one of my brothers, Jorge Pena. 17 Q Who? 18 A My brother, Jorge Pena, I met him through him. 19 Q Yes. 20 A I met him through him. 21 Q Is that the guy that Manuel Pena calls Jorgillo or -- 22 A Jorgillo, yes. 23 Q How do you pronounce that? 24 A Jorgillo. 25 Q Jorgillo. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 31 of 41615 1 A Jorgillo. 2 Q That would be the silent Ls? 3 A Yes. 4 Q Now, did you-all determine what type of -- "y'all" being 5 your brothers and Sergio, determine what type of firearm you 6 were going to purchase? 7 A A 270. 8 Q And who was going to purchase that firearm? 9 A Manuel. 10 Q Is that the person sitting here? 11 A Yes, sir. 12 Q To my right? 13 A Yes. 14 Q And do you recognize him wearing the blue coat and kind of 15 beige, light blue tie? 16 A Yes, sir. 17 Q Okay. 18 that that firearm that was going to be purchased, that 270, was 19 for Sergio Gonzalez and him alone? 20 A No, sir. 21 Q Did Sergio Gonzalez give the money, all the money for the 22 rifle, put it in? 23 Manuel. Now, do you know if at any time it was understood THE COURT: 24 would know. 25 BY MR. GAMEZ: Excuse me. You have to establish that he Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 32 of 41616 1 Q Do you know if Sergio Gonzalez put any money in for that 2 rifle? 3 A I don't know. 4 Q Did you go to a party, sir, for a young boy by the name of 5 Louie and Manuel Junior Pena, a dual party, birthday party in 6 December 2011? 7 A Was it at the lease? 8 Q No. 9 A No? 10 Q At Manuel's house. I don't know. 11 THE COURT: 12 THE WITNESS: 13 THE COURT: 14 Excuse me. I don't -Excuse me. Mr. Gamez, you can't testify, look to your client to get his testimony to -- 15 MR. GAMEZ: Yes, Judge. 16 THE COURT: -- ask the question of this witness. 17 MR. GAMEZ: I just wanted to make sure it was at his 18 house, Judge. 19 20 THE COURT: You can't have your client testify indirectly. 21 MR. GAMEZ: 22 BY MR. GAMEZ: 23 Q 24 Do you remember? 25 A Yes. Did you ever attend a party for your nephews, a joint party? I have. I don't remember the date. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 33 of 41617 1 Q Okay. 2 remember this past year attending a joint party? 3 A Yes, sir. 4 Q Do you know whose house it was at? 5 A It was probably at Manuel Pena's house. 6 Q Could it have been in anyone else's home? 7 A It could have; but more than likely it was at his house, 8 because one of the birthday boys was his son. 9 And it's my fault if I asked you a date. MS. BETANCOURT: Your Honor, I'm going to object to this 10 witness being nonresponsive. 11 He says he doesn't know. 12 THE COURT: Do you The witness is clearly guessing. The jury can take the answer as given. 13 BY MR. GAMEZ: 14 Q 15 firearm for the -- did you-all discuss the purchase of a 270 16 firearm? 17 A Yes, sir. 18 Q Who was there? 19 A My brothers, and it was -- it was several people. 20 brothers. 21 Q What brothers, sir? 22 A Manuel Pena, Rolando Pena, and Jorge Pena, Jorgillo. 23 Q Do you know what was discussed? 24 A We were talking about -- about going hunting and the stuff 25 we needed to buy, supplies and -- At that time did you-all discuss the purchase of a 270 My I know for sure it was my brothers and Sergio. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 34 of 41618 1 Q And what was the stuff you needed to buy? 2 A I don't remember the exact stuff, but supplies and -- but we 3 did discuss about the rifle, about buying an extra rifle. 4 Q Who's "we"? 5 A My brothers and Sergio. 6 Q Okay. 7 A $60. 8 Q Do you know of anyone else who put money in there? 9 A No, I don't know. 10 Q Okay. 11 And how much money did you put, if any? MR. GAMEZ: 12 Excuse me, Judge. Pass the witness, Judge. 13 THE COURT: 14 Ms. Betancourt? CROSS-EXAMINATION 15 BY MS. BETANCOURT: 16 Q Good afternoon, Mr. Pena. 17 A Good afternoon. 18 Q December the 5th of 2011, you were not at the Academy store 19 here in Brownsville, Texas, purchasing any type of rifle, were 20 you? 21 A No, ma'am. 22 Q And you were not with your brother on December the 5th of 23 2011 purchasing any kind of rifle? 24 A No, sir. 25 Q And you were not with Sergio Gonzalez on December the 5th of Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 35 of 41619 1 2011 purchasing any kind of rifle? 2 A No, ma'am. 3 Q What about December the 19th, 2011? 4 brother on that date -- were you in the Academy store in 5 Brownsville, Texas, purchasing a rifle? 6 A I can't remember. 7 Q When's the last time you bought a gun? 8 A I want to say it was in November. 9 Q Of what year? 10 A Of last year, 2011. 11 Q 2011, okay. 12 A Academy. 13 Q And did you buy the gun yourself? 14 A I bought it myself. 15 Q And did you pay for it yourself? 16 A Yes, ma'am. 17 Q And when you went to the counter to fill out the Form 4473, 18 did you mark 11A where it says, "I am the actual buyer of the 19 gun"? 20 A Yes, ma'am. 21 Q And did you take the gun home with you? 22 A Yes, ma'am. 23 Q And is the gun still in your possession? 24 A Yes, ma'am. 25 Q So if the last time you bought a gun was in November of Were you with your And where did you buy the gun at? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 36 of 41620 1 2011, then you and I can agree that you weren't in the Academy 2 store buying a gun for yourself in December 19th, 2011? 3 A No, ma'am. 4 Q Nor did you accompany your brother Manuel Pena on 5 December 19th, 2011, to purchase a gun? 6 A No, ma'am. 7 Q And nor did you on December the 19th, 2011, accompany Sergio 8 Gonzalez to purchase a gun? 9 A No, ma'am. 10 Q Where did you get the money to pay for the November 2011 gun 11 that you bought? 12 A From my bank. 13 Q Okay. 14 you any money? 15 A No, ma'am. 16 Q The discussions regarding the purchase of a 270 rifle -- 17 18 And it was all your -- all your money. MS. BETANCOURT: Nobody gave If I could, Your Honor, approach the board here as it appears? 19 THE COURT: Yes. 20 BY MS. BETANCOURT: 21 Q 22 in October or November of 2011, there was a discussion about a 23 270? 24 A Yes, ma'am. 25 Q Okay. I believe your testimony, Mr. Pena, if I'm correct, was that What gun did you buy in November of 2011? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 37 of 41621 1 A A 270. 2 Q Okay. 3 A Yes. 4 Q I want to make sure I got the right brother. 5 Okay. Is it Rafael, Mr. Pena? So y'all had the discussion, and you went ahead and 6 you did buy the 270? 7 A Yes, ma'am. 8 Q Okay. 9 ago, you said you don't remember when the party was that he was And when Mr. Gamez was asking you questions a minute 10 asking you about when y'all had the party for your two nephews 11 and the other gun was discussed, the 270 was discussed? 12 A Yes, ma'am. 13 Q Okay. 14 timeline because you don't know? 15 A Yes. 16 Q When does hunting season -- 17 A Between -- hunting season starts in November. 18 Q Okay. 19 to the birthday party for your nephews was before hunting 20 season, so it was sometimes -- now this -- so it was sometime in 21 November? 22 A 23 and December. 24 Q Okay. 25 A Yes. So you have no idea. I couldn't even put it on this It was -- it was before hunting season. So the party that you're referring to where you went No, ma'am. I'm saying the party happened between October And that's as much as you remember? That's when we were discussing about the gun. I don't Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 38 of 41622 1 remember the exact date. 2 Q 3 about here when you've discussed it in October, November about 4 the 270? 5 here? 6 A Yes, ma'am. 7 Q Okay. 8 in fact, buy the 270 shotgun? 9 A Yes, ma'am. 10 Q I'm sorry, rifle? 11 A Rifle. 12 Q And in that same conversation with Mr. Gamez, you commented 13 that there were other things that were discussed, but you cannot 14 remember what those things were, about what the needs were? 15 A Yes, ma'am. 16 Q The only thing you can remember is the 270? 17 A Yes. 18 Q Have you ever paid any money for deer corn out at the deer 19 lease? 20 A Yes, ma'am. 21 Q What about for feeders? 22 A Yes, ma'am. 23 Q How many hunting rifles do you own, Mr. Pena? 24 A Just that, the 270. 25 Q How many guns do you own? Okay. And is that the same discussion that you're talking So it's sometime -- I should say October, December And in that -- in between that conversation, you did, Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 39 of 41623 1 A That's the only one. 2 Q With the knowledge that you have from purchasing a gun 3 yourself back in November of 2011, then you understood that you 4 had to swear and sign to a Form 4473 about who the actual 5 purchaser of a gun was, right? 6 A Yes, ma'am. 7 Q And you would understand then that one of the questions that 8 they ask is regarding whether or not you are the actual 9 purchaser; is that correct? 10 A Yes, ma'am. 11 Q And, in fact, it says that if you're buying the gun on 12 behalf of another, then that, in fact, means you're not the 13 actual purchaser, right? 14 A Yes, ma'am. 15 Q And, in fact, the instructions in the form say if you agree 16 to buy a gun for another, then you cannot be the actual 17 purchaser, right? 18 A Yes, ma'am. 19 Q And if someone were to say: 20 well knowing that they are not the actual purchaser, then they 21 can't answer that question yes, right? 22 A I am the actual purchaser, full Yes, ma'am. 23 MS. BETANCOURT: 24 THE COURT: 25 BY MS. BETANCOURT: Yes. Your Honor, may I use the overhead? Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 40 of 41624 1 Q Defendant's Exhibit No. C, do you recognize the people that 2 are in this photo? 3 A Yes, ma'am. 4 Q And starting here with my pointing, who is this person right 5 here? 6 A My son. 7 Q What is his name? 8 A Gael. 9 Q And this young man? 10 A I'm sorry. 11 Q This is Allan? 12 A Yes. 13 Q And who is that? 14 A He's my son. 15 Q That's your son, okay. 16 A That one is Louie. 17 Q Okay. 18 A My brother Rolando. 19 Q And this young man here? 20 A That's a friend's son. 21 Q Okay. 22 A Ruben. 23 Q I'm sorry? 24 A Ruben. 25 Q Ruben what? That's Allan. The other one is Gael. Who does he belong to? And the one here? And who does he belong to? And what is the friend's name? Allan. Case 1:12-cr-00472 Document 105-4 Filed in TXSD on 01/22/13 Page 41 of 41625 1 A Naranjo. 2 Q And this individual here? 3 A My brother's son. 4 Q Which brother, Mr. Pena? 5 A Rolando. 6 Q And this one here? 7 A Gael, that's my son. 8 Q And I see there are a number of guns here on the table, are 9 there not? My other son, Rafael. 10 A Yes, ma'am. 11 Q And who do those guns belong to? 12 A Obviously it belongs to somebody in our party, but I don't 13 know. 14 Q Who is this individual right here, Mr. Pena? 15 A That's my son. 16 Q What is his name? 17 A Rafael. 18 Q And the person sitting down in the chair here? 19 A That's my brother Manuel. 20 Q Is that clear enough, Mr. Pena, for you to recognize? 21 A Yes, it is. 22 Q If I start here, who is this young man? 23 A That's my brother's son. 24 Q Which brother, Mr. Pena? 25 A Jorge. My son Allan, my son Gael, and Sergio's son. Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 1 of 6 626 1 Q Would that be Sergio Gonzalez? 2 A Yes, ma'am. 3 Q And Government's Exhibit No. 1, do you recognize the pickup 4 truck that's there behind that shopping cart? 5 A It's Sergio's, I believe. 6 Q Do you recognize the person sitting in the driver's seat? 7 A I cannot see. 8 Q What about the person standing next to him? 9 A I cannot see. 10 Q If I showed you Exhibit No. 2, the person now moving away 11 from the Colorado, Sergio's truck, do you recognize who that is? 12 A My brother, Manuel. 13 Q And Exhibit No. 5. 14 on the balcony? 15 A It's Sergio's son. 16 Q Do you know what his name is or maybe even a nickname, if 17 you know? 18 A Chiquin. 19 Q And do you -- can you recognize the person sitting down next 20 to him? 21 A Looks like Sergio. 22 Q Now, Mr. Pena, you and I have never met before, correct? 23 A Yes, ma'am. 24 Q In fact, you and I have never talked? 25 A No, ma'am. Well, it looks like it. Do you recognize the young man standing Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 2 of 6 627 1 Q And, in fact, you've never tried to reach out to the U.S. 2 Attorney's office involving your brother's case at all, have 3 you? 4 A No, ma'am. 5 Q But you do work for law enforcement? 6 A Yes, ma'am. 7 Q You do work for Border Patrol? 8 A Customs. 9 Q I'm sorry. Customs. Okay. And you know where the U.S. 10 Attorney's office is? 11 A Yes, ma'am. 12 Q And the first time you ever spoke with Mr. Gamez about this 13 case was just -- I think you testified, I want to confirm, just 14 a couple of minutes outside? 15 A Yes, ma'am. 16 Q That's the first time you've ever talked to him? 17 A Yes, ma'am. 18 Q Was that today or was that yesterday or was that Tuesday? 19 A Today. 20 Q Today. 21 MS. BETANCOURT: 22 THE COURT: 23 I'll pass the witness, Your Honor. Mr. Gamez? REDIRECT EXAMINATION 24 BY MR. GAMEZ: 25 Q Sir, if I could clear something up. When did you -- did you Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 3 of 6 628 1 buy, you personally buy a 270? 2 A Yes, sir. 3 Q Do you remember when you bought it? 4 A I don't remember the exact date, but it was -- I believe it 5 was before hunting season started. 6 Q 7 understand. 8 months before maybe? 9 A I don't remember. 10 Q Okay. 11 did you ever state that you discussed purchasing a 270, this 270 12 that we're talking about, the one that was purchased 13 December 5th, did you discuss that before the ranch time or 14 during the party? 15 Okay. Was it -- without giving me an exact date, I Was it a month before or two months before, three Make sure I don't confuse this, but it seemed like -- MS. BETANCOURT: 16 Speculation. 17 December 5th purchase. 18 Your Honor, I'm going to object. He's already testified he was not there on the THE COURT: And actually you have to pose the question 19 "if the evidence was," because this witness has indicated no 20 knowledge of the purchase of any weapon December 5th. 21 BY MR. GAMEZ: 22 Q 23 purchased by Manuel Pena for Sergio, when do you remember first 24 talking about this rifle that everyone was supposed to pitch in, 25 everyone being your brothers or people on the ranch, lease? If the evidence was that a purchase of a 270 rifle was Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 4 of 6 629 1 A We discussed it several times on several different 2 occasions. I don't remember the date of the first one. 3 MR. GAMEZ: 4 MS. BETANCOURT: 5 THE COURT: 6 7 Thank you, Judge. Nothing further, Your Honor. All right. I'm going to recess for the evening. Members of the jury, at this time I'm going to recess you 8 until 8:30 tomorrow morning. During this recess, you're still 9 under my admonishment that you must not form or express any 10 opinion about the facts of this case and cannot do so until it 11 has been submitted to you for your deliberation. 12 (Jury leaves courtroom) 13 THE COURT: 14 outside, please. 15 record. 16 17 18 19 20 21 22 23 24 25 Thank you. Okay. We're in recess. You may be brought back in. Thank you. (Court adjourned.) * * * (End of requested transcript) Sir, you can wait I don't need a Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 5 of 6 630 1 2 3 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 4 5 Date: January 18, 2013 6 7 /s/________________________ Signature of Court Reporter Barbara Barnard 8 9 10 I N D E X 11 JURY TRIAL 12 AUGUST 16, 2012 13 Government rests 591 14 Defendant's motion for acquittal 592 15 16 PAGE CHRONOLOGICAL INDEX GOVERNMENT'S WITNESSES: 17 DIR 18 SERGIO GONZALEZ 19 SHAUN OWEN 490 CROSS RDIR RCRS 439 461 486 583 478 588 RCRS 539 V/DIRE 20 21 22 CHRONOLOGICAL INDEX DEFENDANT'S WITNESSES: 23 24 25 RAFAEL PENA DIR CROSS RDIR 600 618 627 V/DIRE Case 1:12-cr-00472 Document 105-5 Filed in TXSD on 01/22/13 Page 6 of 6 631 1 ALPHABETICAL INDEX 2 Name 3 OWEN, SHAUN PENA, RAFAEL Page 490 600 4 5 GOVERNMENT'S EXHIBITS 6 NO. 7 29A 29B 29C 29 29C 8 9 DESCRIPTION Tape Tape Tape CD Tape OFFRD ADMTD 471 471 471 589 590 472 472 590 OFFRD ADMTD 432 432 432 437 437 437 437 437 437 recording recording recording recording W/DRAW 10 11 DEFENDANT'S EXHIBITS 12 NO. 13 A B C X Y Z 14 15 16 17 18 19 20 21 22 23 24 25 DESCRIPTION Photo Photo Photo Photo Photo Photo W/DRAW Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 1 of 41 632 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 JURY TRIAL BEFORE THE HONORABLE HILDA G. TAGLE AUGUST 17, 2012 8 9 VOLUME 5 10 APPEARANCES: 11 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 12 13 14 15 16 Brownsville, Texas 78520 17 18 19 20 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 21 District Order of 94-15, United States District Court, Southern Texas. 22 Transcribed by: 23 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 2 of 41 633 1 (Jury enters courtroom) 2 3 THE COURT: Good morning. Please be seated. Ladies and gentlemen of the jury, I want to just assure you 4 that -- well, first of all, during jury selection I told you 5 that I thought it might be a two-day trial, and now it's already 6 Friday. 7 there is something that would conflict with the idea that I'm 8 just kind of floating out there, if it's necessary to continue 9 after 5:00 this afternoon, we will have food for you so that you Just so that -- to allay any concerns you may have, if 10 don't have to be here on an empty stomach. 11 continue past the normal stopping time, we'll be able to do 12 that. 13 If it's necessary to I would feel better. But if there were to be a conflict that you already know of 14 with continuing past 5:00 today and, you know, the outside 15 chance that we could go to Monday for whatever part of the trial 16 that's still ongoing, I would appreciate your letting the clerk 17 of the court know when we take a recess, and that way we can, 18 you know, adjust things accordingly to try to accommodate any 19 conflicts there might be that you could foresee. 20 no conflicts; but just in case there would, I don't want to 21 inconvenience you. 22 All right. There may be Mr. Gamez, good morning. 23 MR. GAMEZ: Good morning, Judge. 24 THE COURT: All right. 25 MR. GAMEZ: Yes, Judge. Call your next witness. We would call, respectfully, Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 3 of 41 634 1 Rolando Pena. 2 THE COURT: 3 THE WITNESS: 4 THE COURT: 5 THE WITNESS: 6 THE COURT: 7 Good morning, sir. Good morning. Please have a seat in the witness chair. Yes, ma'am. And speak into the microphone so that your voice is amplified. 8 THE WITNESS: 9 THE COURT: Yes, ma'am. Thank you. 10 You may proceed. ROLANDO PENA, 11 the witness, having been previously duly cautioned and sworn to 12 tell the truth, the whole truth and nothing but the truth, 13 testified as follows: 14 DIRECT EXAMINATION 15 BY MR. GAMEZ: 16 Q Good morning, Mr. Pena. 17 A Good morning. 18 Q Would you state your full name, sir. 19 A Rolando Pena. 20 Q How old are you? 21 A I am 36-years-old. 22 Q Are you married? 23 A Yes, sir. 24 Q Are you single? 25 A No, I'm married. Rolando Pena. Are you single? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 4 of 41 635 1 Q Do you have any children? 2 A Yes, two. 3 Q Are you employed? 4 A I am. 5 Q How long have you been a nurse? 6 A Going on a year. 7 Q You reside here in Brownsville? 8 A Yes, sir. 9 Q Who's Mr. Manuel Pena? 10 A He's my brother. 11 Q How old are you? 12 A I'm 36-years-old. 13 Q He's your younger brother? 14 A No, my older brother. 15 Q He's your older brother? 16 A Yes, sir. 17 Q Okay. 18 lease. 19 A Yes, sir. 20 Q The ranch. 21 A Yes, sir. 22 Q Okay. 23 A Yes, sir, I do. 24 Q Who's on the lease with you? 25 A My brother is on the lease, but we -- we both pay for it. I'm a nurse, Brownsville Nurse and Rehab. Sir, I'm only going to ask you questions about the You understand? If I may, sir, do you belong to a lease? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 5 of 41 636 1 Actually four of us, me and my three brothers. 2 Q What do you mean you pay for the lease, the four of you? 3 A He's the actual name on the lease, but we split expenses up. 4 Any expense, we divide it four ways. 5 deer corn, the blinds. 6 Q What do you mean you built a roof? 7 A A little shelter so we could have cookouts. 8 Q Like a little carport? 9 A A little carport, yeah. Anything. It could be We built the roof out there. What's -- We built that last year, so we 10 divided that expense up between the four of us and we built it. 11 A trailer, we bought it last year too, 2010, the year before 12 last. 13 Q How much was the trailer? 14 A 2500. 15 Q And who sleeps in the trailer? 16 A Our kids usually. 17 kids, once we -- once it's late enough, they'll go sleep. 18 put mattresses on the floor or the two beds, actually bunk bed 19 and a master room. 20 Q So are you a guest on the lease? 21 A Yeah, we bring -- we're five brothers all together, and we 22 have a lot of friends. 23 with us, go hunting with us and go camping with us. 24 Q Do other people go with you? 25 A Yes, sir. We divided that expense up. We usually sleep in the truck. And the We And there's no shortage of people go Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 6 of 41 637 1 Q Who are the other people that go with you on the lease? 2 A I know Sergio Gonzalez was at the lease. 3 brothers' friends from work. 4 There's a lot of them. 5 Q What are they, hunters or -- 6 A Yes, of course. 7 hunt either in the morning or at night. 8 on the blind. 9 Q What do you mean we at least let them hunt morning or -- 10 A Since we're so many, the kids want to hunt too. 11 accommodate. 12 accommodate them. 13 morning hunt, and then somebody else will go the night hunt. 14 That way everybody can go hunting. 15 Q So you-all would take turns hunting? 16 A Yes, sir. 17 Q Does Manuel always get to hunt? 18 A No. 19 Q Do you-all take turns? 20 A Yes, sir. 21 Q What does a blind cost? 22 A I'm sorry? 23 Q What does a blind cost? 24 A About $400. 25 ourselves. Well, a lot of my I mean, I could name them all. They'll go, and we'll find room to at least We'll find them to get We'll If we're going to stay there two days, we'll So, okay, you can go this -- you can do a About $400 to build it. We'll build it Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 7 of 41 638 1 Q You build them yourself? 2 A Yes, sir. 3 less. 4 Q And you had two blinds? 5 A Yes, sir. 6 Q So that would be? 7 A 800, closer to nine actually. 8 Q Was there ever a blind that cost you some $600 from Mexico? 9 A Not me. The wood and materials cost about $400 more or I know Sergio bought a blind, had a blind made in 10 lieu of the money for the lease because he didn't buy into the 11 lease, but he would go regularly with us, Sergio Gonzalez. 12 know he -- he had that blind made. 13 that much. 14 people could fit in it. 15 nice blind. 16 Q Did he ever contribute to the -- staying in the trailer? 17 A The lease -- yes. 18 staying -- going -- being able to go with us and take his kids. 19 Of course, you always need meat if you're going to barbecue. 20 Q Would he contribute for the food? 21 A To food, yes. 22 Q What do you mean rifles, sir? 23 A Well, we needed -- we needed -- we thought we needed more 24 rifles because of so many hunters. 25 Q So I It cost him approximately It was a real nice blind, though. Maybe three, four Had a door, had windows. It was a real Not real crude. Who's "we"? The blind, we took it as part of Rifles as well. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 8 of 41 639 1 A Me, my four brothers and Sergio. 2 Q What month is this? 3 A 2011. 4 Q Yes. 5 A That's when we -- Sergio suggested we get another gun. 6 agreed we did need another gun, so we -- we said we'll divide 7 that into five, including Sergio. 8 Q How do you know this happened? 9 A It was my son's birthday party and my nephew's birthday Is this in 2011, 2010? Around in December, around the 12th to the 18th. 10 party. 11 is December 18th. 12 I'm not sure exact date. 13 What time? We had them joint. My son is December 12th. We My nephew So we had a party somewhere in between there. We had a party at my brother's house, and I believe my 14 brother invited Sergio. He came over. We were sitting around. 15 It's deer hunting season, so we started talking about deer 16 hunting, and he brought up we need another gun. 17 Q Okay. 18 MR. GAMEZ: If I may approach the board, Judge? 19 THE COURT: Yes. 20 BY MR. GAMEZ: 21 Q December the 12th, 2011. 22 A That's my son's birthday. 23 Q What's your son's birthday? 24 A December 12th. 25 Q What's his name? Why is that important to you? He was born in '96. Louie. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 9 of 41 640 1 A Louie Canales. 2 Q We'll just call him Louie. 3 A Yes. 4 Q Is that okay with you? 5 A Yes, sir. 6 Q Okay. 7 A Is my nephew's birthday, Manuel's son. 8 Q Would he be Junior? 9 A Yes, he is. 10 Q That's son of Manuel Pena. 11 A Rolando Pena. 12 Q Rolando, father. 13 that. 14 Luis Carlos Canales. And December 18th? Excuse me. And you are? And he's father. So everyone can see Writing real small. Okay. Now, there was a gathering, you said? What did you 15 say? 16 A There was a joint birthday party for both our kids. 17 Q Joint birthday for Luis and? 18 A Boy. 19 Q For Junior? 20 A Yes, sir. 21 Q Now, was this somewhere in between December 12th and 22 December 18th? 23 A Yes, sir. 24 Q Was it right after your son's -- closer to your son's 25 birthday, or was it closer to Manuel's birthday? And Manny. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 10 of 41 641 1 2 THE COURT: Mr. Gamez, would you please get back to the lecturn so your voice is amplified. 3 MR. GAMEZ: Yes, Judge. 4 BY MR. GAMEZ: 5 Q 6 place on the 13th, 14th, on or about the 15th, would that be -- 7 that's correct? 8 A 9 living in Brownsville, and we get together couple times a week, Sir, if the evidence would show that the -- that party took I would say that was correct. I mean, we're four brothers 10 have cookouts, so it could have been 13, 14, 15. 11 Q 12 Junior Pena, was it? 13 A I don't believe so, no. 14 Q Okay. 15 A Myself, my wife, my two boys. 16 my brothers, Rafael Pena, Jorge Pena and their family, and 17 Sergio got there later. 18 But Sergio got there. 19 we were having a cookout, so he showed up. 20 real close. 21 his boys came to that party too. 22 Q 23 you said? 24 A 25 together, if it's during fishing season, we'll start talking Okay. Okay. It wasn't the day before the birthday of Manuel So who was there at this party? Excuse me. Manuel's family, Several friends usually stop by too. I believe my brother Jorge called him up, And our boys are Like I say, we go hunting and fishing together, so So what happened at that party regarding a firearm, We -- we were talking about the lease. Every time we get Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 11 of 41 642 1 about the boat. We'll start dividing if we need -- for example, 2 this year we needed tires for the trailer. 3 needs a tuneup every year, and we'll start talking, well, we 4 have to divide that expense up. 5 about tickets to go see a game. 6 Q 7 sharing the expenses on the boat? 8 A 9 brothers' boat, and we'll split -- that's the way we work it. The boat always Cowboy season, we start talking On the boat, if I may, sir, would everyone partake of Yes, sir. That boat is under my name, but it's all our four 10 We split expenses. We're brothers. We're real close. 11 say, we get together several times a week. 12 Q And you have the title in your name? 13 A It's under my name. 14 brother bought the -- my brother Jorge bought the Cowboy tickets 15 this year on his credit card, and we paid him later. 16 tickets, the hotel tickets, and we paid him later. 17 Q Would you say you're a tight family? 18 A We're very close. 19 Q Okay. 20 A Oh, yes. 21 Q Did he pay for the boat? 22 A On the boat, no. 23 split that up, whoever goes fishing. 24 there's a couple times where a tire blew and whoever is there 25 has to fix it. The boat is under my name. Like I And my The plane Very tight. Now, would Sergio go fishing with you? But he would pay -- if we -- gas, bait, we It is what it is. Gas, bait. I mean, Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 12 of 41 643 1 Q Now, when it's fishing time, I believe you say that you talk 2 about fishing. 3 about? 4 A 5 the feeders, the deer corn feeders, four wheelers. 6 need that year, we'll start talking about it, and you get amped 7 for it. 8 need this. 9 total, and then we'll just divide it. Hunting. When it's hunting time, what do hunters talk We need repairs to the blinds. You get ready for it. Whatever we And you start dividing, well, we Well, somebody will buy it. And then here's the 10 Q 11 party, did y'all ever discuss purchasing another firearm for the 12 ranch? 13 A 14 Okay. We need repairs to So if on or about the 13th, the 15th there was a Yes, we did. MR. GAMEZ: So if I may, Your Honor, write those dates 15 13th, 14th, 15th, on or about. 16 BY MR. GAMEZ: 17 Q 18 regarding a second firearm? 19 A 20 brother's house, and Sergio came and he said -- he suggested we 21 needed another gun, and I -- we agreed. 22 hunting with us, and we try teach them gun safety there and 23 stuff like that. 24 can't go hunting, during the day after the hunt, you go -- you 25 get on the blind from 6:00 in the morning until about 9:00, and Okay. 13th, 14th, and 15th. How did the subject matter arise at this party I believe Sergio. Who brought it up, if anyone? We're sitting at a table in front of my We -- all our kids go And we have a shooting range. Even if they Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 13 of 41 644 1 then again at -- in the afternoon, you get back on there about 2 3:00 in the afternoon and you get down about 9:00 at night. 3 Well, during the day, you're just at the lease. 4 the woods. 5 Q Sitting there? 6 A Sitting there. 7 a shooting range where it's safe, and we teach them gun safety 8 like our dad taught us. 9 Q For whom? 10 A For your kids. 11 Q To spend time on? 12 A Yes, so we can spend time with the kids, and we'll get 13 the -- sight the rifles in there and see -- we'll even play 14 games, see who can shoot closer to the bull's eye, stuff like 15 that, different guns. 16 Q Is it fun? 17 A Yeah. 18 with our kids. 19 Q 20 during the day normally? 21 A 22 sunrise. 23 ready, everything before 6:00. 24 get in your blind so you don't disturb the deer at sunrise. 25 Excuse me. Okay. You're just in So we try and make it fun for them. We put I mean, that's what our dad did with us, we would do Now, for the jury, what times do you go hunting You get up -- in the blind, supposed to be there before 6:00 in the morning, you get up. You get your coffee At 6:00 you hit the trails to Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 14 of 41 645 1 2 THE COURT: Excuse me. Stella, would you get the gentleman some water, please. 3 THE WITNESS: 4 THE COURT: 5 THE WITNESS: Thank you, ma'am. Go ahead. I'm sorry. And then you get down around 9:00 in the 6 morning. 7 BY MR. GAMEZ: 8 Q 9 certainly not disagreeing with you, is before sunrise and to Okay. So the standard hunt that you understand it, and I'm 10 about 9:00, 9:30? 11 A Yes, sir. 12 Q Okay. 13 A 3:00 in the afternoon. 14 Q 3:00, 4:00 in the afternoon, what do you do? 15 A Not for the kids, there's nothing. 16 something, we show the kids how to skin it, how to gut it. 17 Q You dress them, right? 18 A Dress them. 19 Q Generally do you have an opinion as to whether the deer come 20 out when it's hot in the afternoon? 21 A They usually don't. 22 Q So do you have an opinion as to whether or not you would go 23 hunting during the afternoon? 24 A No, you don't. 25 Q So what is it you do, if anything, to try to fill that time And from 9:00, 9:30 to? I mean, if you kill Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 15 of 41 646 1 in during the day for your children? 2 A 3 wheelers. 4 a shooting range in our lease so it would be safe away from 5 camp, and we take the kids out there with shotguns, different 6 caliber weapons. 7 Q 8 period of time. 9 A Yes, sir. 10 Q Okay. 11 December 13th, 14th, or 15th regarding the firearms. 12 brings it up. 13 A 14 need more guns because my two brothers have rifles, and then we 15 were -- depending whoever else takes a gun. 16 .22s. 17 Q Can you use .22s, sir, for hunting -- 18 A No. 19 Q -- white tail deer? 20 A No, sir. 21 22 Try to make it fun for them. Like I said, we have four Usually borrowed -- borrow four wheelers. Or we put Did you -- you say you would go target shooting during that Would that be correct? Now, there's a conversation on or about Sergio What did you think, if anything? When Sergio brought it up, we decided it was correct. We had maybe three Our boys are bigger. THE COURT: Excuse me. Wait until the question is completed before -- 23 THE WITNESS: 24 THE COURT: 25 THE WITNESS: Sorry about that. Before you give a response. Yes, ma'am. We do Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 16 of 41 647 1 THE COURT: Thank you. 2 BY MR. GAMEZ: 3 Q 4 tail deer? 5 A No, sir. 6 Q Certainly not. 7 deer with a .22, what happens? 8 A 9 the kill. Can you use -- do you suggest using a .22 to shoot a white It's not strong enough. Why not, sir? If you shoot a white tail It will go off in the woods and die probably. You won't get You just wound it for somebody else or for -- 10 Q Do you ever want to shoot a deer and just wound it and let 11 it die? 12 A 13 rule, whatever you kill, we're going to eat. 14 rabbit, we're going to cook rabbit. 15 kids. 16 Q 17 they grow up? 18 A Of course. 19 Q Okay. 20 A No, not for deer. 21 brought their weapons. 22 270 calibers. 23 another one together. 24 needed -- he thought we should get another one. 25 went. No, sir. No, sir. That's a waste. Whatever -- there's a If you kill a That's what we tell our Don't just kill just to kill. And is that what you preach and teach to your children as So did you have enough firearms in your opinion? We had the two, whoever else friends At that time we already had three; three My brother each had one, and then we bought And then Sergio brought up that he They didn't have firearms. His two boys My two boys, I don't have a Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 17 of 41 648 1 firearm. And we agreed, well, we'll keep them for the lease. 2 Whoever goes hunting, they can use those weapons, and -- 3 Q 4 and my son only? 5 A 6 more firearms, like we needed more blinds, like we needed more 7 deer feeders. 8 Q 9 deer season? Did you ever hear Sergio say: Huh-uh. No. I want this rifle for my son It was for the lease. It was -- we needed How do you know that this rifle was for the blind for the 10 A Because I put in. It was my money too. 11 it. 12 the party for the -- for the -- for the gun, for the rifle. 13 Q Who else, if anyone, gave money for the gun or rifle? 14 A I know my brother did. 15 Q Which brothers? 16 A Rafael. 17 that Jorge also -- 18 THE COURT: It wasn't Sergio's gun. I know I put in on It was -- I gave him 60 bucks at Two of my brothers. I saw him that day give him $60 too. Excuse me. I heard later You can't testify about what he 19 heard. He can testify about what he has personal knowledge of. 20 BY MR. GAMEZ: 21 Q Who do you have personal knowledge that gave? 22 A I saw my brother Rafael Pena give him some money as well for 23 the rifle. 24 it was 60 bucks between five to buy a rifle. 25 Q He said: Here's my part for the rifle. Why did you give $60? We decided Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 18 of 41 649 1 A Between five of us, it would be $60 so we could all -- our 2 kids could use the rifle so we could have those two, if you want 3 to call them camp rifles. 4 Q And five times 60 was how much? 5 A About 250. 6 Q Five times 60, would that be 300? 7 A Yeah, about 300, sorry. 8 Q Okay. 9 A It was Manuel Pena, Rafael Pena, myself, my younger brother It's -- plus taxes, right? Now, who are the five you're talking about? 10 Jorge, and Sergio. 11 Q Okay. 12 A It really came down -- Manuel Pena is on the lease. 13 Pena is the head of our family, if you will. 14 mean, it's his lease. 15 they had asked me, I would have bought it. 16 said: 17 Q 18 have bought it? 19 A That gun was for the lease. 20 Q Whose rifle would it have been if you would have bought it? 21 A Everybody's. Who was, if you know, supposed to buy the rifle? I believe -- I It's our lease, but it's his name. Well, I'll buy it. Manuel If But I believe Manuel It's for the lease. What do you mean if they would have asked you, you would 22 THE COURT: 23 happen. 24 BY MR. GAMEZ: 25 Q It was for all of us to use. Excuse me, speculation. Ask him what did What did ultimately happen as far as the purchase of the Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 19 of 41 650 1 firearm? 2 A Who bought the rifle? My brother Manuel bought it with the intent -- 3 MS. BETANCOURT: Your Honor, I'm going to object. There 4 has not been any establishment that this witness has any 5 personal knowledge that he was there the day of the sale; that 6 he was there before or after the sale. 7 THE COURT: Mr. Gamez, your response? 8 MR. GAMEZ: If he knows, Judge. 9 10 If his brother bought it, then I believe, respectively, he should be able to tell the jury he knows his brother bought it. 11 THE COURT: How would he know unless he was told? 12 MR. GAMEZ: Yes, especially if his brother told him: 13 bought the rifle. 14 THE COURT: Sustained. 15 BY MR. GAMEZ: 16 Q 17 belief? 18 A I'm sorry? 19 Q Was a 270 purchased with your money, to the best of your 20 knowledge and belief? 21 A 22 Was that weapon purchased, to the best of your knowledge and Yes. MS. BETANCOURT: Your Honor, I object. 23 established how he would know that. 24 to the question. 25 I THE COURT: It has not been The answer is nonresponsive Well, that part is not disputed, so I'll Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 20 of 41 651 1 allow it. 2 MR. GAMEZ: Is he allowed to answer, Judge? 3 THE COURT: Yes, I said he's allowed to answer the 4 question. 5 BY MR. GAMEZ: 6 Q What happened to your money? 7 A My money went to -- 8 9 THE COURT: Now, that part he can't -- unless he has personal knowledge as to how a gun was paid for. 10 BY MR. GAMEZ: 11 Q Do you know what happened to -- do you know if a firearm -- 12 13 Okay. MR. GAMEZ: What was the last question I asked that you said was all right, could be answered, Judge? 14 THE COURT: I said that he -- you asked, "To the best of 15 your knowledge, was a gun purchased?" 16 answer that question because that's not disputed. 17 BY MR. GAMEZ: 18 Q Sir, did you understand that question? 19 A Yes. 20 21 22 Best of my knowledge, a gun was purchased with my $60. THE COURT: That part I'm ordering struck from the record. He can, to the best of his knowledge, know that a gun was 23 purchased. 24 the record. 25 And I said he could Beyond that, the Court is striking that answer from And, sir, would you please answer only the question that you Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 21 of 41 652 1 have been asked? 2 THE WITNESS: 3 THE COURT: Yes, ma'am. Thank you. 4 BY MR. GAMEZ: 5 Q Did you ever see that firearm? 6 A No. 7 Q Now, was that firearm that you did not see, was a prior -- 8 if you know, a prior 270 purchased by Manuel during the December 9 part of -- the early December part of the deer season of 2011? 10 A Yes, sir. 11 excuse me, we needed -- we needed a rifle, so me and four of my 12 brothers bought another rifle. 13 Q Okay. 14 A I mean, I'm sorry, me and three of my brothers. 15 fourth. 16 Q 17 gave money to, but this is another time, right? 18 A Correct, the first 270. 19 Q Yes. 20 A First 270, it was 80 bucks each. 21 Q What do you mean it was 80 bucks each? 22 where were you when you decided -- where were you when the 23 rifle -- purchasing the rifle was discussed? 24 A 25 together several times. Okay. When we got ready for deer season that year, Manuel bought the rifle. Now, what -I'm the Now, this was not the rifle at the party that you I'm sorry, Mr. -- I'm sorry, sir. What did you-all -- Like I said, we get It was at the beginning of deer season. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 22 of 41 653 1 Q Yes, sir. 2 A I'm saying late November. 3 need money for this. 4 together, and here's -- we need money for that. 5 for this because we go hunting, we go fishing. 6 thing. 7 Q At that time, did you know if you needed another rifle? 8 A Yes, sir. 9 Q What type of rifle did you need, in your opinion, for the Okay. And it's a community thing, so we Here's -- I get paid. We get We need money That's a good 10 ranch, for the lease, deer lease? 11 A 12 270s. 13 expensive with the 270. 14 could take the same kind of bullets. 15 caliber bullets. 16 Q Why is that important? 17 A You just go buy one box of bullets. 18 to go to the lease. 19 You don't buy two boxes. 20 Q And does everybody -- can everyone shoot from that box? 21 A Yes, sir, same caliber. 22 two other 270s. 23 Q 24 270 caliber bullet? 25 A We wanted to keep it uniform, because my two brothers have That way we only -- ammo is expensive. It's less We wanted to keep another 270 so we We're not buying different It's not extra expenses You buy one caliber bullets and one box. If it's the same caliber, like the Could you use, if you know, a 243 shell caliber bullet for a I'm sorry? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 23 of 41 654 1 Q Could you use a 243 rifle shell for a 270 -- 2 A No, sir. 3 Q -- rifle? 4 A No, sir. 5 Q Did you ever recommend: 6 A No. 7 Q Okay. 8 A I know at that party, Sergio did say 243, but then we 9 overruled him and we bought a 270. Let's buy a 243? No, I didn't. They said, well, everybody 10 else has -- we already have three at that time that went. Two 11 of my brothers at that one ranch, we already bought the ranch 12 rifle, which everybody can use it, so we decided to buy the 13 fourth one with Sergio. 14 Q Okay. 15 A 80, $80, the first rifle. 16 Q And if you know, how much money did the others give? 17 A 80. 18 Q And who were the others? 19 A My brother Manuel, my brother Rafa, and my brother Jorge. 20 Q Did Sergio give any money to that rifle? 21 A No, sir. 22 Q Was -- who do you believe the rifle belonged to? 23 A All of us. 24 it. 25 that rifle. Now, the first rifle, how much money did you give? It was under Manuel's name, but we all could use If I needed it, call him, I'm going hunting, I'll go grab Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 24 of 41 655 1 Q Could Sergio use the rifle? 2 A If he asked for it nicely. 3 if we said no, he didn't buy in in that one, but he was -- he 4 was real close to us, and I don't -- I don't see why not he 5 would borrow it. 6 Q 7 real close? 8 A A brother. 9 Q What's that? 10 A He was a brother. 11 We went hunting together, stuff like that. 12 Q 13 to the lease? 14 A 15 job was very flexible in its time, and Sergio would facilitate a 16 lot of things for us. 17 one to cook. 18 designated driver, and he could go -- if I needed something for 19 my brother, he -- he could go. 20 you home, you could call him, and he would be there. 21 Q 22 firearm, you-all being the family of brothers? 23 A Which one? 24 Q First rifle. 25 A Yes. If he asked for it, sure. But Was he considered -- what do you mean when you say he was Was he considered just a friend or a brother? He was a brother. His kids, our kids, we hang out a lot. How often in your opinion did Sergio go hunting with you-all If we were there, he was there. Okay. Excuse me. He had -- excuse me, his He would -- he would be the Or beer, he didn't drink much. He was our Or if you needed him to drive If he -- So did you-all send your brother to purchase that Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 25 of 41 656 1 MR. GAMEZ: I pass the witness, Judge. 2 CROSS-EXAMINATION 3 BY MS. BETANCOURT: 4 Q Good morning, Mr. Pena. 5 A Good morning. 6 Q How many guns do you own? 7 A I don't own any guns. 8 Q Have you ever bought a gun? 9 A No, ma'am. 10 Q The son that -- I'm sorry, tell me about your children 11 again. 12 A I have two boys. 13 Q Two boys. 14 A 15 going on 16, and 10 going on 11. 15 Q And they go to school here at BISD? 16 A Los Fresnos. 17 Q Los Fresnos, okay. 18 birthday, the one whose birthday is in December? 19 A Both of them are. 20 Q Which one is that one? 21 A Both of them are in December. 22 Q I'm sorry? 23 A My both boys birthday is in December. 24 Q Tell me their birthdays then. 25 the month and the day. How many children do you have? And how old are they? And the one that had the party or the Just the day -- I'm sorry, Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 26 of 41 657 1 A December 12th and December 20th. 2 Q These parties that you have at your brother -- is at your 3 brother's house where y'all usually get together? 4 A 5 cooking out. 6 house. 7 Q 8 talking all four of the brothers? 9 A Yes. 10 Q So the party could be at Manny's house. 11 think you called him Rafa? 12 A Which party? I'm sorry. 13 Q The parties. I just want to talk about the fact that y'all 14 get together. 15 Mr. Gamez y'all get together two times a week. 16 A 17 week. 18 We're very tight. 19 Q 20 together barbecuing every day? 21 A I didn't say every day. 22 Q Mr. Pena, I'm not trying to be difficult. 23 A I'm not -- 24 Q I'm just trying to get a feel. 25 A I'm not either, ma'am. Either brothers will call each other up, see where -- who's Somebody is usually cooking out at my house, their Either brother I think maybe sometimes assumes two. Are we It could be -- I I think that when you were testifying, you told I'm not going to say two times a week. We call each other up. Several times a If we're off, we'll get together. So several times a week would be that y'all are almost Trying to answer honestly. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 27 of 41 658 1 Q Okay. So in your estimation, how many times a week would 2 you say you get together with your brothers? 3 A Several. 4 Q Okay. 5 A Usually. 6 Q Okay. 7 parties? 8 A 9 If it's football season, we talk about football. And that rotates between all the brothers' homes? And when you get together, what do you do at these Cook out. If it's hunting season, we talk about hunting. 10 fishing season, we'll talk about fishing. 11 Q What time do your parties usually start? 12 A Depends. 13 you start getting together. 14 Q 15 parties? 16 A 17 dinnertime parties. 18 Q Okay. 19 A That depends as well. 20 Q All right. 21 A Sure. 22 Q Okay. 23 A Sometimes. 24 Q Do they last after 2:00 a.m.? 25 A I'm not sure. If it's Depends what time you're off, schedules, what time Would they be lunchtime parties, or would they be dinnertime We've had lunchtime parties last to night, and we have It depends. How long does a party usually last? Do they last into the evening hours? Do they last after midnight? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 28 of 41 659 1 Q And what goes on at these parties? 2 A Barbecue. 3 Q And when you say drinking, does that include drinking 4 alcoholic beverages? 5 A Yes. 6 Q Okay. 7 December 12th and December 18th, Mr. Gamez, I believe, asked you 8 that you're sure it happened sometime either the 13th, 14th or 9 15th? Yes. Barbecue, drinking. Now, this party that you remember having between 10 A I wouldn't -- I wouldn't -- it would happen between 11 those days, between 12th and the 18th I know for sure because my 12 boy's and my nephew's birthday. 13 Q So as far as you know, it could have happened on the 12th? 14 A No, it did not happen on the 12th. 15 Q Or it could have happened on the 18th? 16 A No, I did not happen on the 18th. 17 Q How do you know it didn't happen on the 18th? 18 A Because it was between my nephew's birthday and my son's 19 birthday. 20 Q Okay. 21 A So it wasn't on those days. 22 Q And this would have been a party for your son that was 23 turning how old? 24 A 15. 25 Q 15, okay. It was between those days. And if it didn't happen on the 12th and it didn't Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 29 of 41 660 1 happen on the 18th, then it's your testimony that it would have 2 had to have happened on the 13th, 14th, 15th, 16th, or 17th? 3 A Correct. 4 Q Okay. 5 was in 2011? 6 A No, ma'am. 7 8 Do you know what day of the week December the 12th MS. BETANCOURT: Your Honor, could I approach the witness and refresh his memory with a December 2011 calendar? 9 THE COURT: 10 Yes. MS. BETANCOURT: Thank you, Your Honor. 11 BY MS. BETANCOURT: 12 Q 13 could, refresh your memory from that. 14 then tell the jury, what day of the week in December of 2011 was 15 the 12th of December? 16 A It was a Monday. 17 Q It was a Monday. Mr. Pena, would you just take a look at that, and if you 18 19 MS. BETANCOURT: And then if you could Your Honor, may I write that on the board? 20 THE COURT: 21 MS. BETANCOURT: 22 BY MS. BETANCOURT: 23 Q 24 Monday. 25 correct, Mr. Pena? Yes. Thank you, Your Honor. December the 12th, 8, 9, 10, 11. Okay. December 12th was a That would make the 13th then a Tuesday; am I Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 30 of 41 661 1 A It would. 2 Q And then that would make the 14th then a Wednesday. 3 would make the 15th then a Thursday, and then that would get us 4 to December the 18th being a Sunday. 5 A Yes. 6 Q And so it's your testimony that if the party took place 7 somewhere between the 12th, 13th -- the 13th, 14th and 15th, 8 that would have occurred during the week, right? 9 A Yes. 10 Q And that would have been on a school night? 11 A December? 12 Q That early? 13 A I mean -- 14 Q You don't remember? 15 A I don't remember. 16 Q You do not know if your kids were in or out of school? 17 A Me and my brothers work shift work, and we could be off on 18 the weekend. 19 Q I'm asking about your kids. 20 A Uh-huh. 21 Q Your kids would have been in school during the party? 22 A Yes, if there was school during that time. 23 Q But you don't remember? 24 A I can't say for sure. 25 Q The gun that your brother Manuel Pena purchased after y'all That Am I correct? I think it's December break, isn't it? We could be off during the week. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 31 of 41 662 1 had a discussion in late November, do you know when that was 2 purchased? 3 A I'm sorry, I don't understand. 4 Q Your testimony is is that you put 80 bucks in, you and your 5 brothers; that Sergio had no part of this gun. 6 80 bucks in, and that your brother Sergio -- I'm sorry, your 7 brother Manuel bought a gun. 8 A I'm sorry? 9 10 That y'all put THE COURT: Excuse me, Stella. Would you please provide some more water for the gentleman? 11 COURT CLERK: 12 BY MS. BETANCOURT: 13 Q Yes, Your Honor. Mr. Pena -- 14 MS. BETANCOURT: 15 THE COURT: 16 BY MS. BETANCOURT: 17 Q 18 gun. 19 A 20 November when we started talking about hunting. 21 hunting season starts November 15th, so -- 22 Q 23 clear. 24 25 Okay. Yes. May I proceed, Your Honor? I'm sorry for the interruption. Late November, 80 bucks from each brother to buy a That was your testimony? Correct. Okay. I'm not sure about time. It must have been late It started -- Mr. Pena, I want -- now -- but I want that to be Because when you told Mr. Gamez, you said late November. THE COURT: Excuse me just a second. Wait until the question is completed before you raise an objection. And, Ms. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 32 of 41 663 1 Betancourt, you don't have to speak that loud. 2 3 Mr. Gamez, what's -- allow the question to be completed before you urge an objection. 4 Ms. Betancourt? 5 BY MS. BETANCOURT: 6 Q 7 put that $80 in? 8 A To start deer season is when we started talking about it. 9 Q At the start of deer season? 10 A It must have been sometime -- we started talking about deer 11 season or deer hunting, and we bought it for that purpose, so it 12 was around that time. 13 Q 14 around maybe the 15th of November, so that would have been 15 around the time that y'all would have been talking about guns? 16 A We could start about that time. 17 Q On December the 5th of 2011, were you with your brother at 18 the Academy store here in Brownsville? 19 A I'm not sure, ma'am. 20 Q Have you ever gone with your brother to the Academy store 21 here in Brownsville? 22 A Yes. 23 Q Okay. 24 A Many times during the year. 25 we'll go to Academy. Mr. Pena, let me just ask you this. Do you know when you If I'm not mistaken, deer season in 2011 started somewhere And when was that? We hang out, we have breakfast, Just waste some time. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 33 of 41 664 1 Q What about on December the 19th? 2 the Academy store with your Brownsville -- with your brother on 3 that day? 4 A 5 Pro Shop as well. 6 Q 7 Gonzalez. 8 between the 12th and the 18th, not the 12th, not the 18th, so 9 somewhere between the 13th and the 17th, that was when Sergio Again, I don't know. Do you remember being at My -- we could. We go a lot. I want to go back to this party and ask you about Sergio The December party that you refer to somewhere 10 first brought up the subject of wanting to buy a gun? 11 what you remember? 12 A That's -- yes. 13 Q And Sergio was the one that brought it up? 14 A At that party he did. 15 Q And you're sure about that. 16 17 Bass MR. GAMEZ: That's It was Sergio's idea? Your Honor, I'm going to object. Arguing with the witness. 18 THE COURT: 19 BY MS. BETANCOURT: 20 Q Was it Sergio's idea? 21 A I don't know. 22 Q Mr. Pena, that's different from your testimony to Mr. Gamez. 23 You told him -- 24 25 THE COURT: question. Sustained. Might have been. Could have been. Don't argue with the witness. Ask the Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 34 of 41 665 1 BY MS. BETANCOURT: 2 Q It's important for each of the children to have a rifle? 3 A No. 4 Q Well, my understanding is y'all let the kids target shoot 5 when y'all are out doing the hunting. 6 A 7 If -- we'll use the rifles we have. 8 nobody's rifle. 9 Q Never bought a gun, have you, Mr. Pena? 10 A No, ma'am. 11 Q Okay. 12 A I bought a gun with -- 13 Q I'm sorry? 14 A I bought a gun with my brother and the group. 15 under my name, but it's -- we bought them together. 16 Q Who keeps those guns? 17 A I could. 18 Q I ask do you -- 19 A It's whoever goes hunting last has the weapon. 20 Hey, I need to go hunting, and you grab it again. 21 Q Mr. Pena, do you have any guns in your home right now? 22 A No. 23 Q Do you know anything about sighting in rifles? 24 A Sure. 25 Q Tell me how that works. They do target shoot, but they don't own their own rifle. It's not their rifle. It's It's everybody's rifle. It's not Do you have any at your house? I could keep them. It's just: Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 35 of 41 666 1 A 2 for a .360 caliber, and it's real simple. 3 the -- put it on the tip, and it's laser guided, so it's no -- 4 more or less brings it in there. 5 Q 6 that each individual person can have a very accurate shot to 7 make sure they make a good shot on a deer to not do what you had 8 said before, to not make a -- you want to do a kill shot so that 9 you don't hurt or injure an animal and not be able to find the 10 We have a laser sight. It's You just put it on And that's -- my understanding, the reason you do that is so deer; is that right? 11 12 I believe Manuel bought it. MR. GAMEZ: I'd object, Your Honor. She's testifying. She needs to ask a question. 13 THE COURT: 14 THE WITNESS: She can lead. Overruled. Well, you need the rifle to be sighted in 15 so you can hit something. 16 BY MS. BETANCOURT: 17 Q And each individual person sights in a rifle? 18 A No. 19 them in. 20 Q 21 there are two blinds on this deer lease that you and your 22 brothers belong to; is that correct? 23 A There's more than two. 24 Q Okay. 25 A It's a very lax rule, though. No, ma'am. We're not expert shooters. We just sight When y'all are talking about going out in the morning hunt, We own two. And the rule of the lease is one hunter plus guest? Usually there's not many Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 36 of 41 667 1 hunters there. And like I said, our days off are usually during 2 the week, so it's -- we could take multiple hunters, and the -- 3 he wouldn't frown -- nothing was said. 4 Q 5 your testimony was somebody would hunt in the morning. 6 there were too many people, we would take turns, and somebody 7 else would hunt in the evening? 8 A 9 morning and four people in the afternoon sometimes. My understanding was is that y'all did take turns. Right. That Because But sometimes there would be three people in the I mean, it 10 varies. Like I said, that's why we chose that lease. It was 11 very lax in the restrictions, in their regulations, the 12 leasehold -- the lease guy, it's a friend, worked with my 13 brother, and so we could take -- like I said, we're four 14 brothers, so we all hang out, and our friends are everybody's 15 friends. 16 my friends, so we could take multiple people on the blinds if 17 they weren't in use. 18 Q 19 today? 20 A Nobody. 21 Q I assume you got prepared to come and testify here today. 22 Who did you talk to? 23 A I didn't talk to anybody. 24 Q You didn't talk to Mr. Gamez? 25 A He asked me about if -- what knowledge I knew, but he My friends are my brothers' friends, his friends are Mr. Pena, who did you talk to about your testimony here Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 37 of 41 668 1 didn't -- we didn't talk about the testimony. 2 Q And when did you talk to him? 3 A Throughout this trial. 4 Q Was that -- and where did you talk to him? 5 A I remember him pulling me aside several times to talk. 6 Q But you hadn't talked to him before this trial? 7 A No, not Mr. Gamez. 8 MS. BETANCOURT: 9 THE COURT: Mr. Gamez? 10 MR. GAMEZ: That will be all, Judge. 11 THE COURT: All right, sir. 12 I'll pass the witness, Your Honor. You may step down, and you're excused. 13 THE WITNESS: 14 THE COURT: Call your next witness. 15 MR. GAMEZ: Jorge Pena, Judge. 16 THE COURT: I'm sorry? 17 MR. GAMEZ: Jorge Pena. 18 THE COURT: All right. 19 Good morning, sir. 20 THE WITNESS: 21 THE COURT: Thank you. Thank you. Good morning. Please have a seat in the witness chair to 22 my right, and please speak into the phone, into the microphone 23 so that your voice is amplified. 24 THE WITNESS: 25 THE COURT: Thank you. Yes, Your Honor. You may proceed. Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 38 of 41 669 1 JORGE PENA, 2 the witness, having been previously duly cautioned and sworn to 3 tell the truth, the whole truth and nothing but the truth, 4 testified as follows: 5 DIRECT EXAMINATION 6 BY MR. GAMEZ: 7 Q What is your name, sir? 8 A Jorge Pena. 9 Q Sir, what is your age? 10 A I'm 34-years-old. 11 Q Are you married? 12 A Yes. 13 Q Do you have any kids? 14 A Two kids. 15 Q How old are they? 16 A My son is seven, and my daughter is five. 17 Q All right, sir. 18 regarding the deer lease and related matters to the deer lease. 19 Do you understand? 20 A Yes, sir. 21 Q Okay, sir. 22 A Yes, sir. 23 Q Where are you employed? 24 A The U.S. Border Patrol. 25 Q How long have you been a Border Patrol agent? I'm only going to ask you some questions Are you employed? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 39 of 41 670 1 A Five years. 2 Q Where are you assigned as a Border Patrol agent? 3 A In Brownsville, Texas. 4 Q Okay. 5 A Yes, sir. 6 Q Where is this deer lease? 7 A It's in Rio Grande City about maybe 130 miles from here. 8 Q Are you a member of that deer lease? 9 A Yes, sir. 10 Q How are you a member of that deer lease? 11 A I'm part of the deer lease by -- we contribute to the deer 12 lease. 13 Q What -- who do you contribute to? 14 A To the expenses of paying the lease and whatever we need to. 15 Q Are you the main paying member of the deer lease? 16 A We're all equal, but the main one is my brother. 17 Q Exactly. 18 A Manuel Pena. 19 Q Okay. 20 the deer lease? 21 A Yes. 22 Q Okay. 23 mean? 24 A 25 it's $975, and we divide it among us and a friend of ours. Do you belong to a deer lease? And your brother is who? So it's his responsibility to pay for his portion of Now, what do you mean "we all pay"? We divide the cost of the deer lease. What does that And in this case, Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 40 of 41 671 1 Q Okay. 2 A Manuel Pena, me, Rolando Pena, Rafael Pena, and a friend of 3 ours, Sergio Gonzalez. 4 Q 5 for the deer lease? 6 A Yes. 7 Q How did he do it? 8 A By -- he put a blind. 9 in money, but Sergio Gonzalez had a blind he made for us, and Okay. Who is us and our friend of ours? Did Sergio Gonzalez pay for this past money pitch in And we all pitch in not necessarily 10 then that was his part of it. 11 Q 12 trailer? 13 A On the trailer? 14 Q Yes. 15 A Equal. 16 Q Amounts with who? 17 you? 18 A All five of us. 19 Q Okay. 20 A Yes. 21 Q Do your children go to the deer lease? 22 A Yes. 23 Q And who are your -- who do -- 24 A Excuse me? 25 Q Both your two children? Okay. How do you split the expenses, for example, on the How do you split? Equal amounts for all five of us. Equal amounts from who? From all five of Is that the five that you mentioned already? Case 1:12-cr-00472 Document 106 Filed in TXSD on 01/22/13 Page 41 of 41 672 1 A My son. But I've taken my daughter too, but mainly my son. 2 Q Okay. 3 the early part of December? 4 A Yes, sir. 5 Q How did that occur? 6 A Which firearm? 7 Q Let's talk about the first one. 8 A The first one? 9 Q How did that happen? Sir, did you ever pitch in to purchase a firearm in There's two that we bought. I mean, what came about that you 10 decided we need another firearm? 11 A 12 getting -- we talk about what we need for that year, that 13 particular year. 14 biggest expense was just the payment for the deer lease, which 15 was the 975, and the two blinds. 16 decided to buy another firearm, another hunting rifle. 17 Q And what type of firearm did you-all decide was needed? 18 A A 270, a caliber 270, and a low priced one just for the kids 19 can use. 20 Q For who to use? 21 A Our kids, everybody's kids. 22 Q Okay. 23 A My brother. 24 Q Okay. 25 A Yes, sir. We all decided, because when deer season nears, we all start And the deer lease for this year, I think our We had two blinds, and we Now, who was to buy that firearm? Did you put any money into that firearm? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 1 of 41 673 1 Q Okay. Now, who was going to be able to be allowed to use 2 that firearm? 3 A Everybody. 4 Q Was this firearm particularly for any one particular person? 5 A No. 6 Q Did you ever hear that this firearm belonged to someone's 7 son particularly? 8 A No, sir. 9 Q Did you ever know that that firearm was supposed to be for All of us, all five of us adults and our kids. It was for the deer lease, a ranch gun. 10 one of the guys in the leases son and only his? 11 A No, sir. 12 Q I'm sorry, sir. 13 that? 14 A For -- yes, sir. 15 Q How much did you pitch in? 16 A About 50, $60. 17 Q Now, sir, did you ever pitch in to buy a second firearm? 18 A Yes, sir. 19 Q And what type of firearm did you pitch in to buy? 20 A Another one, the same 270 Remington. 21 low end gun from Academy, just -- 22 Q Why do you say a low end gun? 23 A Because it's mainly for our kids to use. 24 have an expensive rifle, and I don't lend it out to the kids 25 because I don't want it banged around. Did you tell me that you pitched in for I really don't remember. Just like I said, a And if -- I myself Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 2 of 41 674 1 Q It's a good point. What do you mean you don't want it 2 banged around? 3 A 4 thousand dollars, and then I got a -- like a $500 scope on it 5 and -- 6 Q So you're set, and you have your own personalized rifle? 7 A Yeah. 8 Q So do you have an opinion whether $300 is a low range rifle 9 or a middle range rifle or a high range rifle? Why not? Well, it's an expensive. I have a Browning, which is like a 10 A My opinion, it's a low. 11 Q Okay. 12 a second rifle? 13 A 14 Sergio Gonzalez brought it up because prior to that, that 15 bringing up a second rifle, he had gone with his two sons and he 16 took a third -- I think it was his nephew. 17 they were all excited, that they loved it, and they -- they all 18 bought them camouflage shirts and pants. 19 we all buy another ranch hand, but as for us, so for the ranch. 20 Q Were you to buy it for him? 21 A No, no, no. 22 Q Were you to buy it for his son and only for his son? 23 A No, sir. 24 Q Would you have given money for him to buy a rifle for his 25 son alone? Now, how did you come to understand that you may need We were at -- I believe at my brother's house it was, and And he said that And he suggested that For the ranch so we can use it. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 3 of 41 675 1 A No, sir. 2 Q What did you-all decide, if anything, as far as purchasing a 3 firearm? 4 A 5 and we decided on the same caliber, a 270. 6 Q 7 pretty much or, excuse me, the lease, deer lease? 8 A Yes, sir. 9 Q So if there would be evidence that states: We decided that -- well, we split it again among five of us, Is that what you do with all the stuff you buy at the ranch All expenses are paid equally or -No, that rifle 10 was purchased for me, my son, would that be true or untrue in 11 your opinion? 12 A Untrue. 13 Q Why did you want another 270? 14 A We all use the same -- aside from the 270 being the most 15 accurate for deer hunting, we all use 270s. 16 get expensive, and so we all share our ammo, we share guns, we 17 share -- 18 Q Did you have a trailer on the lease? 19 A We have an old trailer. 20 Q Who's "we"? 21 A All five of us again: 22 myself. 23 Q Sergio Gonzalez could sleep in the trailer? 24 A Yes, of course. 25 Q Did you make him sleep in the truck? I mean, bullets can My brothers and Sergio Gonzalez and Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 4 of 41 676 1 A No. 2 Q Come on, Mr. Pena. 3 his son in the truck? 4 A 5 6 No, sir. You didn't make him sleep in a truck and No, sir. MS. BETANCOURT: Your Honor, I'm going to object. That's already been asked and answered. 7 THE COURT: 8 BY MR. GAMEZ: 9 Q Sustained. That's what I understood. If there was evidence or 10 testimony that he did not sleep in your van -- excuse me, your 11 trailer, that he was -- that he slept, he and his son, in the 12 truck, would that evidence in your opinion be true or untrue? 13 MS. BETANCOURT: 14 THE COURT: 15 Your Honor, I'm going to object. Excuse me. Before you answer, let me rule on the objection. 16 MS. BETANCOURT: Your Honor, it's speculative. He's 17 already answered. 18 the trailer, not would he deny him. 19 Sergio said he slept in his truck, that was Sergio's decision. 20 He would have to speculate. 21 THE COURT: The question is would you let him sleep in If there's testimony that Overruled. 22 BY MR. GAMEZ: 23 Q 24 his son slept in the truck and he didn't sleep in the trailer, 25 would that be true or untrue? If there was testimony, sir, that he slept in the truck and Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 5 of 41 677 1 A By choice? 2 3 Or I mean -- THE COURT: It doesn't matter. Just did he or did he not? 4 THE WITNESS: Untrue. 5 BY MR. GAMEZ: 6 Q 7 rifle? 8 A About 50, $60. 9 Q Second time? 10 A I'm sorry. 11 about 50, $60, because the first one we bought only -- So the first time you pitched in how much for the first The first one, about $80. 12 THE COURT: 13 THE WITNESS: The second one was You've already answered the question. Okay. 14 BY MR. GAMEZ: 15 Q How long have you been part of that deer lease? 16 A Three, four years. 17 Q Is -- how do you pronounce your name in Spanish? 18 A Pena. 19 Q What is Jorgillo? 20 A Jorgillo? 21 Q Jorgillo. 22 A Could be. 23 Q Was this second firearm, was it brought up -- where was it 24 brought up? 25 A Jorge, I'm sorry. Is that a nickname of yours? At my nephew's birthday party. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 6 of 41 678 1 Q Okay. 2 MR. GAMEZ: Nothing further, Judge. 3 CROSS-EXAMINATION 4 BY MS. BETANCOURT: 5 Q Good morning, Mr. Pena. 6 A Good morning. 7 Q You and I have never met, right? 8 A No, ma'am. 9 Q And, in fact, we did try to talk to you, did we not? We 10 asked you to come on down to the U.S. Attorney's office last 11 week? 12 A Two days before the trial, yes. 13 Q And you said you were going to show up and you were going to 14 meet with us at the U.S. Attorney's office? 15 A That's wrong, no. 16 Q Okay. 17 A I said I had a doctor's appointment in McAllen, and then you 18 guys suggested maybe at a later time -- that same day at a later 19 time. 20 and I can't promise that I'll be back. 21 Q 22 Attorney's office at 3:30 in the afternoon? 23 A 24 that's when I said I'll try to make it. 25 have a doctor's appointment in McAllen. I received a phone call. So you're saying that -- I'm like, like I said, I have an appointment in McAllen, And you're saying that you did not agree to meet at the U.S. That time you guys, whoever called me, said 3:30. And But, like I said, I Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 7 of 41 679 1 Q And you didn't make it, right? 2 A No, ma'am. 3 Q And you didn't call us to tell us you weren't going to make 4 it? 5 A No, ma'am. 6 Q And when Shaun Owen called you to say: 7 okay? 8 right? 9 A I didn't. 10 Q And you didn't call us back Monday, the Monday following 11 your doctor's appointment, right? 12 A Which is the day before the trial? 13 Q Okay. 14 right? 15 A Nope. 16 Q Didn't call us back on Wednesday during the trial? 17 A No. 18 Q Didn't call us back on Thursday? 19 A No. 20 Q Okay. 21 A The day he got arrested. 22 Q May the 24th? 23 A Okay. 24 Q And you didn't call us between May the 24th and the time 25 that we reached out to you last week? Hey, everything We wanted to meet with you, you never called him back, No. And you didn't call us back Tuesday during the trial, When did you find out your brother had been arrested? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 8 of 41 680 1 A Why would I call you May 24th? 2 3 THE COURT: Excuse me, sir. Answer the question. Don't -- 4 THE WITNESS: 5 THE COURT: No, I didn't call. Excuse me. Let me explain. 6 questions, and you don't argue. 7 objectionable, the attorney will object. 8 9 THE WITNESS: You don't ask If there is something that's Okay. BY MS. BETANCOURT: 10 Q You work for the United States Border Patrol, right? 11 A Yes. 12 Q And you know where the U.S. Attorney's office is, correct? 13 A Yes. 14 Q The parties that would be held at your brother's house, who 15 would attend these parties? 16 A 17 party? 18 Q 19 your nephew? 20 A Not an exact date. 21 Q Who would have been at that party, do you remember? 22 A Since it was a birthday party of two nephews, this brother's 23 son and another brother's son. 24 Q And who would have been at the party, do you remember? 25 A My wife, the kids, my brothers, Sergio Gonzalez. My brothers, Sergio, my wife, kids. I mean, what particular What about the party that you're speaking of in December for Do you know what day that party was on? That's Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 9 of 41 681 1 about it. 2 Q Only your wife would come, or would the other wives come? 3 A No, the other wives too. 4 Q All the wives of your brothers? 5 A Yes. 6 Q The deer lease regarding everybody's share, it's your 7 testimony to the jury today, and if you'll just confirm with me, 8 that Sergio did pitch in his share because he did buy a deer 9 blind? 10 A Yes. 11 Q The $80 -- you remember giving $80 so that you and your 12 brothers could buy a gun; is that right? 13 A About, yes. 14 Q Okay. 15 A The first. 16 Q Okay. 17 and your brothers buying the gun; is that right? 18 A Yes, yes. 19 Q Sergio was not involved in that transaction at all, correct? 20 A No, ma'am. 21 Q And this 270 that your brother was going to buy, when did 22 that discussion take place when you gave him the $80? 23 A 24 like I said. 25 Q And was that for the first gun or the second gun? And that was $80 because it was only going to be you Like I said, it had to have been prior to the deer lease, Prior? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 10 of 41682 1 A Prior to deer hunting. When deer season gets near, we start 2 to see what we need. 3 Q 4 starts the first or second week of November? 5 A November, yes. 6 Q Okay. 7 been in anticipation of deer season sometime in November? 8 A Possibly. 9 Q How many guns do you own, Mr. Pena? 10 A I own mine, one. 11 Q You own one gun? 12 A Yes. 13 Q And is that that Browning? 14 A Browning. 15 Q What type of rifle -- is that a rifle, a hunting rifle? 16 A Yes. 17 Q What type of -- 18 A It's a Browning Medallion, bolt action, a 270. 19 Q And when did you buy that rifle? 20 A Two years ago. 21 Q Okay. 22 A My wife bought it for me. 23 Q And is it at your house right now? 24 A Yes, ma'am. 25 Q And it's your testimony that you don't let anybody use it And I don't have an exact date. But would you agree with me, deer season traditionally And so that discussion regarding the $80 would have And where did you buy it at? It was a gift. Christmas. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 11 of 41683 1 because it's a very expensive gun? 2 A Yes, ma'am. 3 Q And you have it sighted in? 4 A Yes. 5 Q Have you ever gone with your brother when he has bought a 6 rifle? 7 A I don't -- I don't remember. 8 Q So if I were to ask you if you were with your brother on 9 December the 5th of 2011 at the Academy store buying a rifle, I don't know. 10 your answer would be no? 11 A I don't remember. 12 Q So you don't know if you've ever -- you don't remember ever 13 buying a gun with your brother? 14 MR. GAMEZ: Arguing with the witness, Judge. Objection. 15 THE COURT: I'll allow it. 16 BY MS. BETANCOURT: 17 Q 18 Brownsville, Texas, with your brother Manuel Pena to purchase a 19 rifle? 20 A No. 21 Q The kids at the deer lease use the rifles to target 22 practice; is that correct? 23 A Sometimes, yes. 24 Q And it's your testimony that Sergio's children enjoyed 25 hunting on the deer lease? Do you remember ever going to the Academy store in Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 12 of 41684 1 A Yes. 2 Q And they wanted to go back to the deer lease? 3 A Yes. 4 Q And they wanted to shoot at the deer lease? 5 A Yes. 6 Q Has your brother Manuel Pena ever talked to you about Sergio 7 asking him to buy a gun for his son Chiquin? 8 A Excuse me? 9 Q Has your brother, Manuel Pena, ever asked or ever talked to Again? 10 you about Sergio Gonzalez wanting to buy a gun for his son 11 Chiquin? 12 A No, ma'am. 13 Q He's never talked to you about that? 14 A No, ma'am. 15 Q Has your brother ever talked to you about Sergio asking him 16 to buy a sun for Lalo? 17 A A sun? 18 Q I'm sorry. 19 sorry. 20 I'm probably being confusing, Mr. Pena. I'm Has your brother Manuel Pena ever talked to you about Sergio 21 coming up to him and saying: Chiquin has a gun. 22 a gun? 23 A No, ma'am. 24 Q He's never mentioned that to you? 25 A No, ma'am. Now Lalo wants Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 13 of 41685 1 Q And it's your testimony at the birthday party for your two 2 nephews, Sergio is the one that brought up the fact that we need 3 another 270? 4 A Yes, ma'am. 5 Q Your brother never -- I'm sorry. 6 Mr. Pena. 7 talked to you about Sergio handing him $400 to buy a gun? 8 A No, ma'am. 9 Q He's never told you: We have too many brothers, Manuel Pena, your brother Manuel Pena, he never Sergio handed me $400 and asked me to 10 buy a 270? 11 A No, ma'am. 12 Q So if I were to show you here Government's Exhibit No. 16 -- 13 I'm sorry, Government's Exhibit No. 17, you don't know anything 14 about this $400? 15 A No, ma'am. 16 Q You don't know anything -- 17 18 MR. GAMEZ: Your Honor, these questions have been asked and answered. 19 THE COURT: 20 BY MS. BETANCOURT: 21 Q 22 into the Academy store in Brownsville and buying a gun for 23 Sergio with it? 24 A 25 Overruled. You don't know anything about your brother taking this $400 No, ma'am. MS. BETANCOURT: I'll pass the witness, Your Honor. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 14 of 41686 1 THE COURT: Mr. Gamez? 2 MR. GAMEZ: Nothing further, Judge. 3 THE COURT: All right, sir. Thank you. 4 Sir, you may step down, and you're excused. 5 Call your next witness. 6 MR. GAMEZ: We call -- 7 THE COURT: I'm sorry. 9 MR. GAMEZ: Sandra Pena, Judge. 10 THE COURT: And has she been sworn? 11 MR. GAMEZ: She has been sworn, Judge. 12 THE COURT: Good morning, madam. 8 13 The name, Mr. Gamez? We can't hear it. Would you please have a seat in the witness chair to my right? 14 And, madam, would you please speak into the microphone? 15 Have a seat and speak into the microphone so that your voice is 16 amplified. 17 Thank you. You may proceed. 18 SANDRA PENA, 19 the witness, having been previously duly cautioned and sworn to 20 tell the truth, the whole truth and nothing but the truth, 21 testified as follows: 22 DIRECT EXAMINATION 23 BY MR. GAMEZ: 24 Q Would you please state your full name for the Court. 25 A Sandra Pena. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 15 of 41687 1 Q Ms. Pena, are you the wife of Jorge Pena? 2 A Yes, I am. 3 Q How long have you been married? 4 A About nine years. 5 Q And you have two children? 6 A Yes, I do. 7 Q And what are their names? 8 A Jorge Abelardo Pena, Junior and Jimena Pena. 9 Q And how old are they? 10 A Five and eight this month, my son. 11 Q Okay. 12 or three or four, just a few questions regarding a party, a 13 function. 14 a co-party, a coed party or a co-party between -- for two 15 birthdays? 16 A Yes, I do. 17 Q Did you go there? 18 A Yes, I did. 19 Q Okay. 20 A Yes. 21 Q Who was there? 22 A It was Manuel Pena, Rafael Pena, Jorge Pena, myself, and 23 Rolando Pena and amongst our wives -- their wives. 24 Q Was Sergio Gonzalez there? 25 A Sergio Gonzalez, yes. Ms. Pena, I'm just going to ask you a question or two Do you remember a party for Luis and Manuel, Junior, Was -- do you know who was there? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 16 of 41688 1 Q Were any other wives there? 2 A Rolando Pena's wife. 3 Q Okay. 4 there? 5 A 6 sisters of Manuel Pena as well. 7 Q 8 like the purchase of firearms or anything, do you? 9 A No, sir. 10 Q Okay. 11 Gonzalez speak about a firearm, buying a firearm? 12 A Yes. 13 Q And what is it you understand Sergio mentioned as far as a 14 firearm, a 270 or 243 or whatever the firearm? 15 understand? 16 A 17 when we arrived to the party, we were all kind of like just 18 talking random stuff. 19 about, and he did mention -- he brought up the conversation 20 about buying another rifle. 21 Q Did Manuel bring it up? 22 A No. 23 Q Did your husband bring it up? 24 A No. 25 Q Did -- who, if you know, specifically brought up the need What about kids, children? Were other children My kids, Louie, Bruno, the other -- the brother. Okay. The Now, you don't know much about the lease or anything But in that party, did you ever hear Mr. Sergio What did you I understood -- well, when he came into the par -- well, And then the conversation of hunting came Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 17 of 41689 1 for another rifle? 2 A Sergio Gonzalez. 3 Q Okay. 4 what type of rifle? 5 A What type of rifle? 6 Q Yes. 7 A No. 8 Q Okay. 9 A No. 10 Q -- other than that? 11 A No, that's all I know. And what did you understand -- did you understand And you don't know anything -- Other than he brought up? Yes. 12 MR. GAMEZ: Okay. 13 THE COURT: You may proceed. 14 Thank you, Judge. CROSS-EXAMINATION 15 BY MS. BETANCOURT: 16 Q Good morning, Ms. Pena. 17 A Good morning. 18 Q When was this party, this joint party that you're speaking 19 of? 20 A Where? 21 Q When? 22 A When? 23 Q Do you -- any other recollection as to when? 24 A Well, I know that their birthdays parties -- well, their 25 birthdays are actually the 12th and the 18th, so it had to have Around December. In December. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 18 of 41690 1 been around the time. 2 Q 3 the weekend? 4 A I don't recall. 5 Q And at the party were each of your husband's brothers; is 6 that correct? 7 A If what? 8 Q At -- attending the party? 9 A Okay. 10 Q Were each of your husband Jorge's brothers? 11 A Present? 12 Q Am I right? 13 A Yes. 14 Q Yes. 15 A Well, one of the wives, yes, that I remember. 16 Q One of the wives? 17 A Yeah. 18 Q Who was -- okay. 19 Pena's brother Jorge? 20 A Yes. 21 Q And Rafael, who is his wife? 22 A Lilliana, yes. 23 Q Lilliana? 24 A She was present. 25 Q And Rolando? Okay. And would it have been during a school night or on I don't -- And each of their wives? That I remember. So you're the -- you're the wife of Manuel Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 19 of 41691 1 A Lally. 2 Q I'm sorry? 3 A Lally. 4 Q Lally? 5 A Yes. 6 Q Okay. 7 A Myself. 8 Q And was Lally there? 9 A Yes. 10 Q And let me see. 11 Jorge, Rafael, Rolando. 12 Manuel. 13 A Manuel, yes. 14 Q And who is his wife? 15 A Who is his wife? 16 Q Yes. 17 A Her name? 18 Q Yes. 19 A Her full name? 20 Tere. 21 Q Tere, okay. 22 A Uh-huh. 23 Q And she was there? 24 A I don't think so, no. 25 Q And you said Sergio. And -- I might be missing a brother there. It's Am I missing a brother, Ms. Pena? I don't know her full name. We call her And that's Manuel Pena's wife? I don't recall. Do you know who Sergio Gonzalez is? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 20 of 41692 1 A Yes. 2 Q Okay. 3 A Yes. 4 Q Was he there with his wife? 5 A No, by himself. 6 Q And it's your testimony that you remember him bringing up 7 the need for another gun? 8 A And you said he was there? Correct. 9 MS. BETANCOURT: I'll pass the witness, Your Honor. 10 THE COURT: Mr. Gamez? 11 MR. GAMEZ: Nothing further, Judge. 12 THE COURT: All right. 13 Madam, you may step down. Call your next witness. 14 MR. GAMEZ: Your Honor, respectfully, if we could take a 15 little break at this time, I'd have to have some things put on 16 the record respectfully, Judge. At least put on the record. 17 THE COURT: Why don't you stand at the microphone. 18 MR. GAMEZ: Yes, Your Honor. 19 break. 20 putting the next witness. 21 If we could take a small I would like to put some things on the record before THE COURT: All right then. Members of the jury, I'm 22 going to give you a 20 minute break. During this recess, you 23 are still under my admonishment that you must not form or 24 express any opinion about the facts of this case and cannot do 25 so until it has been submitted to you for your deliberation. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 21 of 41693 1 2 3 4 5 Thank you. (Jury leaves courtroom) THE COURT: All right. Thank you. Please be seated. Mr. Gamez? MR. GAMEZ: Your Honor, my client, Mr. Pena, is a 6 Customs Protection Border Patrol -- excuse me. 7 Protection? 8 THE DEFENDANT: 9 MR. GAMEZ: Customs Customs and Border Protection officer. And Border Protection officer. I've 10 explained to him about taking the stand. 11 Your Honor's ruling about opening the door about character and 12 other evidence that government would bring in as far as other 13 potential allegations. 14 I've explained to him My client insists that he wants to get in all his 15 credentials and all his awards, and he insists that he wants 16 everything brought out over my -- I just want to put a record of 17 this, Judge. 18 everything to come out regarding any investigations or regarding 19 Manuel Pena, my client, Judge. 20 Over my information and advice, he wants THE COURT: All right. And he understands fully. Are you asking him -- do you 21 want to make a record of your asking him whether he has -- you 22 have explained all of this to him, and having heard those 23 explanations and your advice, that he is taking the stand or 24 wishes to take the stand? 25 MR. GAMEZ: Yes, Your Honor, I would. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 22 of 41694 1 THE COURT: Then why don't you do so? 2 MR. GAMEZ: May I put him under oath? 3 THE COURT: Yes. 4 Sir, would you please raise your right hand. 5 (Defendant sworn.) 6 THE COURT: All right. Mr. Gamez, you may proceed. VOIR DIRE EXAMINATION 7 8 BY MR. GAMEZ: 9 Q Mr. Pena -- 10 A Sir. 11 Q I've explained to you all the risks of taking the stand? 12 A Yes. 13 Q And I've explained to you the Court's ruling as far as thus 14 far, not allowing certain evidence in regarding other pending 15 allegations made against you if the door is not opened about 16 your character or any suggestion of your character? 17 A Yes. 18 Q And your -- and even though I've given you advice about not 19 bringing character in, only these facts and these case, you want 20 to bring everything in? 21 A Yes, I do. 22 Q You understand that the risks of bringing in evidence about 23 other pending allegations on your pending cases? 24 A Yes, I do. 25 Q And you do this anyway against my advice? Yes, sir. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 23 of 41695 1 A Yes. 2 Q And you understand that -- that this could -- you do this 3 under the possibilities of perjury and could affect the outcome 4 of your case? 5 A Yes. 6 Q Now, why is it you want to go against my advice and have 7 everything brought out? 8 9 THE COURT: Okay. I don't think that that's relevant. The question is is he aware of perils; and being aware of the 10 perils, that he's wishing to testify even against your advice. 11 BY MR. GAMEZ: 12 Q Did you understand the Court? 13 A Yes, I did. 14 Q Aware of the consequences, potential consequences, the 15 perils against you, you still want to continue to testify and 16 bring out anything that the government may have on you? 17 A 18 Yes, I do. THE COURT: All right. And, Mr. Gamez, just so that the 19 record is clear, would you please ask your client in terms of 20 what you say I have ruled -- what is the ruling that you're 21 referring to -- excuse me. 22 referring to that you have explained to your client so that the 23 record is complete? 24 25 MR. GAMEZ: What is the ruling that you're Yes, Judge. I have explained to him that the government has brought up the potential of bringing up Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 24 of 41696 1 evidence regarding other cases or unidentified, undocumented 2 aliens, transportation of aliens or the importing of certain 3 substances maybe. 4 evidence, Judge, but the Court ruled that it would not allow 5 anything in unless I or he opened the door in his -- in his 6 testimony or cross-examination. I don't know the entirety of the government's 7 And the Court withheld that evidence because it may be 8 unfair in its probative value, could unfairly prejudice him in 9 this case, Judge. And the Court ruling that that could not be 10 introduced, he now understands that he wants it introduced 11 because this is what he so chooses against my advice. 12 THE COURT: Okay. Just to be clear, I granted your 13 request to keep it out unless a door is opened. 14 explained that to him. And you've 15 MR. GAMEZ: Do you understand that, sir? 16 THE DEFENDANT: 17 MR. GAMEZ: And you're fully -- 18 THE COURT: And so that -- just so that I'm clear about Yes, I do. 19 what you said, that he wants to bring out everything, including 20 those allegations -- I mean in his testimony, even though you 21 advised him to the contrary, that he is -- he is willing to open 22 that door and testify about those allegations? 23 24 25 MR. GAMEZ: This is what you so choose, Mr. Pena; is that correct? THE DEFENDANT: Yes. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 25 of 41697 1 THE COURT: Okay. 2 MR. GAMEZ: Is the Court satisfied that my client 3 Just want to make sure. Thank you. understands, Judge? 4 THE COURT: Well, yes. 5 MR. GAMEZ: Thank you, Judge. 6 THE COURT: To be sure. 7 MR. PONCE: Your Honor, I have a matter that was just Thank you. 8 brought to my attention. 9 is going to be the next witness and that's why you're discussing 10 this at this point? 11 12 13 THE COURT: do? Is this going to be -- the defendant I'm not sure. Mr. Gamez, is that what you're intending to Would your client be your next witness? MR. GAMEZ: Yes, Judge. He wants to introduce all his 14 acredations (sic) and awards and everything. Yes, my client 15 will be the next witness, in answer to Your Honor. 16 THE COURT: All right. 17 MR. PONCE: Your Honor, I was just handed a note that -- 18 and this may be moot for purposes of what we have here, that 19 apparently downstairs at our office is Customs and Border Patrol 20 Chief Michael Reyes and another individual associated with 21 Customs and Border Protection. 22 it's Romero or Romeo or something like that. 23 I don't have the first name, but These individuals are here to visit with -- with individuals 24 that have been identified as possible potential witnesses on 25 behalf of the defendant. A Billy Ross, Rafael -- well, and Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 26 of 41698 1 Rafael Pena, I guess, was the individual that just testified and 2 an Anselmo Rosales. 3 whatever channels they have to go through. 4 be at work and did not indicate to their supervisors, superiors 5 that they were going to be here at trial. 6 what procedures they have to employ to be here as potential 7 witnesses. 8 9 THE COURT: Apparently these individuals have not gone They're supposed to I'm not sure exactly Well, what does that have to do with the trial, Mr. Ponce? 10 MR. PONCE: The reason I bring that up is because if I'm 11 understanding correctly, they are here to talk to these 12 individuals and to get them back to work because that's what -- 13 they should be at work. 14 consequences to what they fail to do over there. 15 THE COURT: I'm not sure if there are any other Well, it's not the concern of the Court. 16 The question is who is going to be the next witness. 17 you anticipating calling -- would your client be your last 18 witness, Mr. Gamez, just to clarify that? 19 20 21 22 23 And are MR. GAMEZ: Just to clarify on the record what Oscar THE COURT: No, no. Ponce -I'm asking -- you answer my question. MR. GAMEZ: I had some character witnesses. And some of 24 the character witnesses are, as Oscar Ponce had mentioned, 25 Judge, that my client did not want me to subpoena. He said they Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 27 of 41699 1 would be here on their own. 2 and any character witnesses that are available. 3 THE COURT: Okay. So I would have him as my witness Well, then, in that case, it's not of 4 concern to me. 5 those witnesses that you would otherwise call at your client's 6 request, whether there's going to be a problem with them. 7 you know, like I said, it has nothing to do with the proceedings 8 here, and that's all I care about. 9 your -- those witnesses as to whether they would -- will be 10 11 It's going to be a concern to you as to whether So, You need to visit with available if you intend to call them. MR. GAMEZ: I believe they're concerned that they may 12 feel that Your Honor says that they have to be here because you 13 swore them in. 14 be here, and they should not jeopardize their job? 15 16 17 18 Can I explain to them that they do not have to THE COURT: Well, if they're not under subpoena, they don't have to be here. MR. GAMEZ: It was my client's wish not to subpoena them, Judge. 19 THE COURT: Okay. 20 MR. GAMEZ: Thank you. 21 22 23 24 25 Thank you. (Recess taken from 10:02 to 10:27.) THE COURT: All right. Thank you. Please be seated. I've been informed, Mr. Gamez, that you intend to offer the testimony of the character witnesses first -MR. GAMEZ: Yes. Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 28 of 41700 1 THE COURT: -- before you call your client? But just so 2 that we're all on the same page and nobody will be sandbagged, 3 if Mr. Gamez's witness testify about the defendant's good 4 character, what -- how far or to what extent is the government 5 going to cross-examine them regarding, "Did you know?" 6 MR. PONCE: Your Honor, we would be inclined to question 7 them regarding the traffic stop where the defendant was 8 stopped -- well, first of all, let me just back up just a bit. 9 The defendant has been under some kind of investigation or 10 surveillance for some time now involving smuggling aliens. 11 works at the bridge, and there's been an open investigation that 12 he's -- well, they're aware of because we made them aware of 13 that. 14 He But sometime in October, November -- 15 MS. BETANCOURT: 16 MR. PONCE: November the 8th of 2011. November the 8th of last year, there was a 17 traffic stop, and with him at that time was his wife, who is an 18 illegal alien. 19 introduce is that although he works here with -- you know, at 20 the bridge and part of his job is to certainly keep out drugs 21 and illegal aliens, he is harboring and transporting illegal 22 aliens, albeit his wife. 23 been encountered and questioned about that. 24 earlier occasion also regarding that. 25 And she -- so part of what we intend to This is not the first time that he has There had been an Then there are numerous incidents where, while he's working Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 29 of 41701 1 at the -- at the bridge at the inspection lane, will allow 2 people to go through without being properly checked. 3 in a span -- I don't remember the exact time period, but there's 4 numerous incidents, and we would have a -- we would question 5 the -- whoever his character witnesses ultimately are, whether 6 they're aware that he had -- if he is such an outstanding 7 character, you know, individual, whether they're aware of this 8 incident, this incident that essentially involve crossing of 9 individuals that are not, in fact, properly checked. 10 11 12 THE COURT: question. And in -- In other words, give me an example of the "Did you know that?" MR. PONCE: Did you know that on September the 16th of 13 2010, while working at the primary lane, he improperly checked 14 so-and-so coming through, or something similar to that. 15 16 THE COURT: All right. And so, in other words, your question would be regarding dates and events? 17 MR. PONCE: Yes. 18 THE COURT: Did you know? 19 MR. PONCE: Yes. 20 THE COURT: And prefaced by "did you know?" 21 MR. PONCE: Yes. 22 THE COURT: Okay. 23 MR. PONCE: Then depending on who's coming over, there's Is that what -- 24 another matter also that we would inquire about. 25 has the info on that. Ms. Betancourt Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 30 of 41702 1 THE COURT: All right. 2 MS. BETANCOURT: Your Honor, there is a gentleman on the 3 defendant's witness list by the name of Francisco Cardenas. 4 It's my understanding he is a Brownsville Police Department 5 officer. 6 the stand as a character witness. 7 do a favor for this defendant by getting him out of a situation 8 on November the 8th where he, in fact, was with the wife 9 illegally here in the United States and was stopped by a 10 There would be testimony with Mr. Cardenas if he took He one time tried before to Brownsville Police Department officer. 11 Officer Cardenas started calling the colleague that was 12 there at traffic stop trying to get him to answer the phone, 13 trying to get the defendant -- get the defendant, Mr. Pena, out 14 of that situation. 15 his conduct right there. So there was certainly some testimony about 16 THE COURT: 17 MS. BETANCOURT: 18 THE COURT: It's -- So it would be conduct of the witness? Yes, that -- How would you pose the -- if you -- let me 19 ask. 20 the defendant has a good reputation for being peaceful and law 21 abiding or the equivalent thereof, then what would be the 22 question you would pose to him on cross-examination? 23 If the witness Cardenas were to testify that Mr. -- I mean MS. BETANCOURT: "Isn't it true that on November the 24 8th of 2011, you were made aware by the defendant, Manuel Pena, 25 that he was being stopped by the Brownsville Police Department? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 31 of 41703 1 Isn't it true that you attempted to call the officer, Raymond 2 Rora, at the police -- at the -- at the traffic stop? 3 true that you asked Raymond Rora specifically to do a favor for 4 your friend and make the traffic ticket go away?" 5 6 Isn't it So there would be a -- certainly a bias and a line of testimony regarding his prior favor for that. 7 THE COURT: All right. 8 MR. GAMEZ: I understand if we put him on, Judge, as a 9 character witness. 10 Mr. Gamez? Your Honor, I want to make sure I understand. You're going 11 to allow "Did you know that he improperly checked a crossing 12 individual," would that be a proper question, Judge, when he 13 wasn't there? 14 Or it's assuming facts not in evidence yet. THE COURT: For reputation, you can, "did you know." 15 You can ask a witness who testifies about a person -- about a -- 16 the defendant's reputation for being peaceful and law abiding or 17 good character can be asked "did you know." 18 All right. 19 Okay. Thank you. Please bring in the jury. Just for your edification, Mr. Gamez, under Rule 20 405(a) of the Federal Rules of Evidence, cross-examination of a 21 witness offering evidence of the defendant's reputation, 22 commonly referred to as character evidence, can include "have 23 you heard" questions regarding relevant, specific incidents of 24 the defendant's conduct. 25 concerning a defendant's good character, it is permissible Once a witness has testified Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 32 of 41704 1 during cross-examination to attempt to undermine his credibility 2 by asking him, the witness, whether he has heard of prior 3 misconduct of the defendant which is inconsistent with the 4 witness' direct testimony. 5 determine the credibility and accuracy of the character witness' 6 testimony. 7 The point of such questions is to "There are two limitations to this type of cross. First, 8 the prosecution must have a good faith factual basis for the 9 prior bad act or misconduct. 10 "And second, the incidents must be relevant to the 11 defendant's character traits that are at issue in the trial." 12 Thank you. 13 MR. GAMEZ: Your Honor, my client is now telling me he 14 does not wish to bring in any character witnesses. 15 wish to go forward as prior mentioned to the Court. 16 going to do is testify just as to this case and not bring up 17 character unless he opens the door. 18 THE COURT: All right. 19 MR. GAMEZ: Is that correct? 20 THE DEFENDANT: 21 22 23 He does not So all he's Then please bring in the jury. Yes. (Jury enters courtroom) THE COURT: Thank you. Please be seated. Call your next witness. 24 MR. GAMEZ: Yes, Judge. We call Manuel Pena. 25 THE COURT: And has he been sworn? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 33 of 41705 1 MR. GAMEZ: I don't believe he has. 2 THE COURT: Sir, would you please raise your right hand. 3 (Defendant sworn.) 4 THE COURT: All right, sir. Please have a seat in the 5 witness chair and speak into the microphone so that your voice 6 is amplified. 7 8 9 10 MR. GAMEZ: Your Honor, is it okay if we release the others from the rule, Judge? THE COURT: Yes. I'm sorry. Release the witnesses that you had identified earlier? 11 MR. GAMEZ: Yes. 12 THE COURT: Yes, you can release those witnesses, but 13 they're not -- none of the witnesses are excused from the rule, 14 if that's how you phrased the question. 15 MR. GAMEZ: Yes. 16 THE COURT: Oh, the witnesses, if you're not going to 17 They want to come in to the courtroom. call them? 18 MR. GAMEZ: No, I won't. 19 THE COURT: Yes. 20 MR. PONCE: Your Honor, may I ask that they remain under 21 the rule? I don't know what the substance of the testimony will 22 be as the trial continues, and we may decide to call them. 23 THE COURT: 24 excuse them from the rule. 25 All right. Then request is granted to not They have to remain outside. MANUEL EDUARDO PENA, Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 34 of 41706 1 the witness, having been previously duly cautioned and sworn to 2 tell the truth, the whole truth and nothing but the truth, 3 testified as follows: 4 DIRECT EXAMINATION 5 BY MR. GAMEZ: 6 Q 7 and this jury. 8 A Manuel Eduardo Pena. 9 Q Mr. Pena, may I ask how old you are? 10 A I'm 38-years-old. 11 Q What do you do, sir? 12 A I work for U.S. Customs and Border Protection as an officer. 13 Q How long have you worked there? 14 A 16 years. 15 Q Are you married? 16 A Yes. 17 Q Do you have children? 18 A Yes. 19 Q Okay, sir. 20 I'm going to ask you questions about the ranch and the lease and 21 Sergio. 22 A Yes, I do. 23 Q Sir, how do you know Sergio Gonzalez? 24 A I've known him since 1999. 25 or a security guard. Would you please state your name for this honorable Court Excuse me, 39. I'm going to ask you questions about this case. Do you understand? He used to be a toll collector I don't remember exactly. But we're good Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 35 of 41707 1 friends. 2 Q 3 the last person in the jury -- 4 A Can hear. 5 Q -- can hear you. 6 A I've known Sergio since 1999. 7 Gateway Bridge as a collector or security guard, I don't 8 remember. 9 bridge also. Speak closer to the microphone so I can hear you as well, so He used to work at the And we've been friends since then since I work at the We hang out and hunt and fish. 10 Q Was he a friend of yours? 11 A Yes, he was. 12 Q Would you do things together? 13 A Yes. 14 in Mexico, and he's been to my hometown. 15 Q 16 together? 17 A 18 we fished since -- we bought our first -- me, I'm talking about 19 we, me and my brothers bought our first boat in around 2000, 20 2001. 21 Q 22 silent, you chose to testify? 23 A Yes, sir, I do. 24 Q You made it clear to me that you wanted to testify? 25 A Yes, I did. We hunt. We fish. We've been to his -- his hometown We hang out a lot. Do you get -- how many years have y'all fished and hunted We started hunting around maybe three or four years ago, but We started getting real heavy into fishing back then. And even though you realize that you could have remained Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 36 of 41708 1 Q Okay. Now, sir, are you a member of a lease? 2 A Yes, I am. 3 Q Okay. 4 A Three or four years. 5 Q And as a member, what are your responsibilities on the 6 lease? 7 A 8 name is Guillermo Serrata. 9 already retired. How long have you been a member of a lease? I am the lease -- what they call is the lease master, his He's a co-worker of mine. He's But I pay him for what they call a gun. A gun 10 at the leases is like a right to come in and hunt and camp at 11 this lease. 12 Q 13 hear you? 14 A 15 lease, I'm allowed to bring guests to the camp and hunt and 16 access to the blinds on the property. 17 Q Do you bring guests? 18 A Yes, I do, all the time. 19 two separate properties for the same entry fee. 20 property and then an adjacent 300-acre property with blinds all 21 over. 22 20 blinds, and we're allowed to bring guests. 23 We have a trailer and we camp and we hunt during hunting hours. 24 Q Okay. 25 A I pay it to Willie, but it is divided between me and my Could you speak loud enough please for the last juror to Okay. So since I paid for the gun, the entry fee for the We have -- on the property, it's A 600-acre I'm guessing there's around -- between everything, maybe We have a camp. And do you pay that -- the lease fee yourself? Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 37 of 41709 1 brothers. The 975 that I pay Willie I collect from my brother 2 Rolando, Jorge, Rafa and Sergio also. 3 Q Okay. 4 A No. 5 doesn't have a steady job, so he doesn't have that much money. 6 So he would like bring food or -- we help him out. 7 friend, so if it's a -- if it's a $350 take, maybe he'll put in 8 a hundred or whatever he can, and then he helps out with the 9 food and cooking and all that stuff. Does Sergio always pay his portion? Sergio is -- he sells medical equipment on and off. He He's our 10 Q Did you hear him testify that he brought a blind that cost 11 $600? 12 A Yes, I did. 13 Q Did he pay that $600? 14 A No, he didn't. 15 for the blind. 16 Q How do you know he had the blind made in Mexico? 17 A Because we were talking about building blinds at the 18 beginning of the season, and he said he had a carpenter in 19 Mexico that's a real close friend of his that could make it. 20 we drew it on a piece of paper, what we needed or what we wanted 21 as a blind, and then he took that idea to his carpenter in 22 Mexico or his friend, and he built it over there. 23 Q So he did, in fact, have a blind made in Mexico? 24 A Yes, he did. 25 Q He says all the material was donated to him. He had the blind made in Mexico, but we paid So Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 38 of 41710 1 A 2 deal, but we paid -- he came back with a quote of $600, and we 3 split that up. 4 Q Okay. 5 A Yes. 6 Q Okay. 7 A Yes. 8 Q -- at that time? 9 A At what time? 10 Q In -- what -- 2011, did you own a deer rifle? 11 A Yes. 12 Q What type of deer rifle did you own? 13 A I own a Mossberg 270 with a Nikon scope on it. 14 Q And did you own a laser? 15 A Yes. 16 Q What is a laser sighter? 17 A The laser sighter is in shape -- well, in this case I have a 18 270, so I bought it for a 270 specifically. 19 of a casing, a 270 bullet casing. 20 sight in the rifle, you open the bolt, you insert the case, and 21 then you close the bolt as if it were a bullet. 22 out a laser that comes out the barrel. 23 No, it wasn't. Or at least if it was, then that was his And you-all paid him? Now, did you own a rifle -- What type of rifle did you own? I have a laser pointer, a laser sighter. It's in the shape And when you're going to And it shoots So you aim that laser at a specific point on the wall when 24 the rifle is supported so it doesn't move around so much, and 25 you can zero in the scope by bringing it down to where that Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 39 of 41711 1 laser is pointing. And that puts your accuracy on the rifle; 2 that sets your accuracy on the rifle. 3 Q 4 people have possession of that laser? 5 A 6 it last. 7 Q So everyone could use that laser? 8 A Yes. 9 season starts -- Did you always have possession of that laser, or would other No, I lend it to my brothers, and Sergio is the one that had 10 That's what it's for, you know, so we -- before the MR. PONCE: I'm going to object. 12 THE COURT: Sustained. 13 you've been asked. 11 Nonresponsive, Your Honor. 14 THE WITNESS: Please answer only the question Okay. 15 BY MR. GAMEZ: 16 Q Okay. 17 A It was for the ranch. 18 Q Okay. 19 put in the barrel or in the scope or -- 20 A In the bolt. 21 Q Explain that to the jury, please. 22 A You open the bolt. 23 because a long rifle, it has a bolt. 24 can see the receiver where the ammunition or the bullets go. 25 The laser was for you personally or for the ranch? Now, if I understand correctly, the laser you would The receiver, I guess. You open the bolt. If you can imagine a bolt action rifle, You open the bolt, and you So this laser that we're talking about is in the shape of -- Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 40 of 41712 1 in this case is a 270 round exactly as if it were a bullet but 2 without the actual bullet or any lead or anything, any powder. 3 It's a laser. 4 action. 5 and it shoots a red dot right out of the tip of your barrel, and 6 you can place that on -- or you can point that at a certain spot 7 on the wall. 8 to see that your scope is aiming up here, but the laser is down 9 here. So you place that in the bolt and you close the But when you close the action, the laser is activated, And when you look through the scope, you're going So you adjust the scope with the up and down or side to 10 side adjusters on the side and you bring down your crosshairs to 11 where that laser is pointing, so that makes your shot true. 12 Q 13 where the bullets go? 14 A Yes. 15 Q Okay. 16 where you bolt it, the action back, lays in the chamber and then 17 you close it and then it sits there and then the laser shoots 18 out right through the chamber, right through the barrel to the 19 very end to whatever the target is? 20 A Yes. 21 Q And that is how you sight your rifles? 22 A Yes. 23 at this distance. 24 at over 100 yards. 25 shooting range, you set up a target at 100 yards, and that laser So is the laser actually laying in the chamber of the rifle And does the laser then shoot out from the chamber That makes you what they call bore sighted. You're on But when you shoot at a deer, you're shooting So you go to the ranch, or if you have a Case 1:12-cr-00472 Document 106-1 Filed in TXSD on 01/22/13 Page 41 of 41713 1 is going to get you on paper on the target. But you still have 2 to fine tune it at long distances. 3 Q Okay, sir. 4 A Yes. 5 Q It was -- was the camp allowed to use it? 6 A Yes. 7 Q Was the camp individuals allowed to take it home with them? 8 A Yes, they could take it home. 9 that had it was Sergio, and he gave it back to me at Academy. Now, was that -- did you buy that? Like I said, the last person 10 Q 11 payment of the 975 lease payment? 12 A 13 and it was supposed to be Sergio. 14 doesn't have that much money, so we allow him to pitch in 15 whatever he can and help us. 16 Q 17 the lease? 18 A Yes. 19 Q How often would he go hunting? 20 A He went numerous times, his kids. 21 is a Sergio, Junior and Lalo. 22 around the same ages as my kids so we hang out. 23 taken his children with me hunting without him being present 24 because when he does work -- 25 Who were the people, if any, that would help you with the It was my brothers Jorge Pena, Rolando Pena, Rafael Pena, Question: But as I mentioned before, he Did you still consider him part of -- a member of MR. PONCE: He has two children. We call him Lalito. One And they're And I've even Your Honor, I'm going to object to being Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 1 of 31 714 1 unresponsive. 2 THE COURT: Sustained. 3 BY MR. GAMEZ: 4 Q 5 you? 6 A Yes, I took them. 7 Q When would you take them hunting and why? 8 A Because Sergio, whenever he does work, on occasion he goes 9 to Tennessee or Michigan and he brings back what he said, Okay. Now, would you take Sergio's children hunting with 10 medical equipment that he buys online. 11 available and it is during deer season, the kids will call my 12 kids: 13 Are you guys going to go hunting? So when he's not I want to go. So I call Sergio, and he said, yeah, you can take them, so I 14 pick them up and I take them with me. 15 Q Do you take them -- how do you take them? 16 A In my truck to the deer lease. 17 trailer. 18 for the comfort, and we'll sleep outside either in a tent or in 19 the truck. 20 Q 21 you? 22 A 23 air-condition and heater. 24 25 I set them up in the If there's a lot of kids, they sleep in the trailer Do you ever let -- would the kids sleep in the trailer with Yes. Yes, they sleep there all the time. MR. PONCE: unresponsive. It's got Your Honor, I'm going to object to being Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 2 of 31 715 1 THE COURT: I'll allow it. 2 BY MR. GAMEZ: 3 Q 4 you? 5 A How often? 6 Q Yes. 7 A If not every time I went, he went. 8 missed one or two occasions, but -- 9 Q Did you hear him testify he went maybe once or twice? 10 A Yes. 11 different days. 12 13 When's -- how often do you say Sergio went to the lease with That's why I submitted those pictures of him on THE COURT: Okay. That's not responsive. The question is answered yes or no. 14 THE WITNESS: 15 THE COURT: 16 If not, then maybe he Okay. Yes, he did. Please answer only the question that you have been asked. 17 THE WITNESS: Yes, ma'am. 18 BY MR. GAMEZ: 19 Q 20 only went once or twice? 21 A Yes, I would. 22 Q Now, how many kids were on the lease with you? 23 A Let's see. 24 young, so I'd say three hunting age. 25 brother Rafael. Okay, sir. So you would disagree with Sergio if he said he Most certainly would. I have -- I have four, but the youngest one is My brother has three, my My brother Rolando has two, and Jorge has two, Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 3 of 31 716 1 so it's around ten kids. 2 children that go on a regular basis. 3 Q Okay. 4 A No, there weren't. 5 Q So at any time in the beginning or during the beginning 6 portion of the hunt, was it decided that a additional rifle was 7 needed or additional rifles were needed? 8 A 9 In -- for in preparation of the 2011, 2012 hunting season which Yes. And then Sergio's two kids. That's 12 Were there enough rifles to go around? We decided to buy one this year -- I mean this year. 10 starts in November. 11 Q 12 when the first time you decided that you needed a rifle? How much was the first -- where were you? 13 14 THE COURT: Do you remember Mr. Gamez, please stand at the microphone. Your voice, it needs to be amplified. 15 MR. GAMEZ: Yes, Judge. 16 THE COURT: You can move the exhibits over to the 17 lecturn so that you can be at the microphone. 18 BY MR. GAMEZ: 19 Q 20 occurred regarding the purchase of an additional rifle or the 21 need for an additional rifle? 22 A 23 November 15th. 24 Q 25 needed a different or more rifles? Do you remember on or about when the first discussion Yes. When? Like I mentioned before, deer season starts in When did you decide on or about that the -- you Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 4 of 31 717 1 A October, late October or early November we started 2 discussing the expenses that are coming up for the deer season. 3 And in this case, the case of this year was including the rifle, 4 two blinds and -- well, major expenses and the payment for 5 Willie for the lease. 6 Q 7 are going to be for that year? 8 A Yes, the major expenses. 9 Q Who sits with you, if anyone? 10 A My brothers, me. 11 Pena, Rolando Pena, Rafael Pena and Sergio. 12 Q 13 regarding the 2011 white tail deer hunting term? 14 A 15 was 975. 16 that was 600, and the smaller one for three to $400. 17 how much it was. 18 the ranch, like I mentioned, for the kids. 19 Q Okay. 20 A I was. 21 Q Did you pay for it with all your money? 22 A No. 23 at the discussion for the expenses, so me and my brothers split 24 up the whole expenses. 25 split up the money for the blinds and the rifle also. Do you-all sit down together and determine what the expenses The hunters would be me, Jorge, Jorge What did you determine the major expenses were going to be For this season was the payment for Willie Serrata, which We bought two blinds, including the one Sergio brought I forget And then we decided to buy another rifle for And who was to buy that rifle? I took parts from my brothers. Sergio wasn't -- wasn't We split up the money for Willie. We Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 5 of 31 718 1 Q Do you disagree or agree with your brother Roland that he 2 paid $80 for the first rifle and $60 for the second rifle? 3 A Yes, I agree with him. 4 Q Did your other brothers pay a similar portion or piece for 5 that rifle? 6 A We all paid the same amount. 7 Q That's the first 270 rifle that was purchased? 8 A Yes, it was. 9 Q Did you purchase it on December the 5th? 10 A December the 5th, 2011. 11 Q Okay. 12 any one particular rifle for any particular person? 13 A 14 I'm going to keep it for the ranch purpose. 15 talked about. 16 Q Was it for you and you alone to keep in your house? 17 A No, it wasn't. 18 Q The laser, did you keep that in your house? 19 A I kept it at my house. 20 Sergio had it. 21 couple months, so it moves around. 22 Q Did Sergio have the laser on or about December the 5th? 23 A Yes, he had it. 24 Q If you remember? 25 A He had the laser. Now, was it determined then that it was going to be No, it was my rifle. But since I am in charge of the lease, That was what we But like I said, the last time The time before that, my brother had it for a Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 6 of 31 719 1 Q Did he return it back to you any time thereafter? 2 A He returned it afterwards. 3 Q After what? 4 A After the 5th. 5 Q Okay. 6 for my first son, is that true or untrue? 7 A That is not true. 8 Q Do you agree with your brothers that it was a deer hunting 9 rifle ranch? So if Sergio testified that December 5th rifle was 10 A Yes, I do. 11 Q Did you understand you purchased it? 12 A Yes. 13 Q And you -- did you pay for all of it yourself, though? 14 A I paid at the store, but the money came from our group. 15 Q Did Sergio give you any money for that rifle? 16 A Not the first one, no. 17 Q No money at all for the first one? 18 A Nothing. 19 Q Didn't he pay you some money outside? 20 A For what? 21 Q For the first rifle? 22 A Sergio? 23 Q Yes. 24 A No. 25 Q Did he pay you for -- give you some money inside? He wasn't involved with that one. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 7 of 31 720 1 A 2 work, he was -- he moves around all day. 3 so 8:00 to 4:00, you're tied up, or 4:00 to 12:00. 4 go: 5 brother lives in Olmito. 6 Oh, he had the money because he collected. Since he doesn't And we all have jobs, So he would Hey, let me go pick up the money in Los Fresnos. My He gave me the money that my brothers had pitched in, if 7 that's what you were referring to. 8 Q 9 the money. Yes. We understand some of your brothers say they give you 10 A Yeah, yeah. They gave it to me through Sergio because, 11 well, he's like a brother. 12 you're off, I got my part for the rifle and all that. 13 Q So and -- so you ended up having the money for the rifle? 14 A Yes. 15 Q And Sergio didn't keep it? 16 A Yes, he gave it to me. 17 Q Okay. 18 that store at Academy on December the 5th? 19 A Sergio Gonzalez. 20 Q Your son with you? 21 A No. 22 Q Did Sergio go to the counter? 23 A He was with me the whole time. 24 rifles and hunting and pictures on the wall, pictures of hunting 25 and stuff. So, hey, Sergio, come over here. If He gave it to you? Now, you saw the film. Who was there with you on He was there on the 19th. We were talking about the Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 8 of 31 721 1 Q On December 5th? 2 A Yes. 3 Q Well, didn't he sometimes go out and check the store out and 4 then come back and talk to you and make the rounds and then come 5 back and talk to you? 6 A 7 he was around me: 8 he would go and come back and look at the fishing rods. 9 in that area. Yes, he was -- I was filling out the form for my rifle, and Hey, what are you doing? Was his son there all excited: Not done yet? And He was 10 Q Thank you, Dad, from this 11 rifle. 12 was going to have a 270 on that day, 12/5? 13 A 14 understand his son saw it, but it could have been my son that 15 saw it or my brother's son because his son also knew that we 16 were getting ready for deer season and, you know, it is for the 17 ranch. Was his son there, Sergio's son there excited that he No, he wasn't. He wasn't. That rifle wasn't -- I 18 MR. PONCE: Your Honor, objection. 19 THE COURT: Sustained. 20 BY MR. GAMEZ: 21 Q 22 rifle? 23 A No, he was not. 24 Q Okay. 25 A No. Okay. Nonresponsive. So Sergio's son Chiquin was not there to purchase the Did -- have you ever bought a rifle for your son? Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 9 of 31 722 1 Q Did you ever buy him a BB gun? 2 A A BB gun, yes. 3 Q Okay. 4 A Yes. 5 Q And if you bought your son a BB gun, did you take him with 6 you? 7 A 8 we picked out the Beeman, the $120 top of the line BB gun. 9 Q What do you want to take your son for to buy a BB gun? 10 A Because it's his -- because it's his BB gun and he gets to 11 pick it, and he's going to tell me which one he wants. 12 Q 13 which BB gun he wanted? 14 A Yes. 15 Q Did you let your son look at multiple BB guns to see which 16 gun he wanted? 17 A 18 strength. 19 Q 20 of BB gun? 21 A 22 and you insert the pellet. 23 Q So you got him a pellet gun? 24 A Yes. 25 Q Or was it a pellet BB gun? Well, could a BB gun be called a rifle? Yes, he would have been -- he went with me to Academy, and Did your son get to look -- did you let him look to see Yes. At Academy he saw them all, the weight, the size, the What type of BB gun did you get? I got him a Beeman. A Red Rider or what type It's the one that you break the barrel Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 10 of 31723 1 A No, it's a pellet gun. 2 Q Okay. 3 A Yes, he was. 4 Q Why is it important to take your son with you to buy his 5 first rifle or BB gun? 6 A 7 enough for that, and you're going to take him. 8 of -- part of -- part of the growing up process. 9 to pick the one he wants. But he was with you? Because you're -- you have decided that he's responsible And it's part And he's going He's going to play with it. He's 10 going to feel it, if it's long enough or short enough or -- 11 Q What do you mean feel it? 12 A Because some of the rifles are longer and shorter, and 13 depends on the size of the kid's arm. 14 rifle, then he's not going to be able to sight -- to look 15 through the sights or anything, so it needs to be his -- to his 16 specification. 17 Q 18 rifle for him? 19 A Yes, same thing. 20 Q Is that part of the fun of being a dad, when you buy them 21 their first rifle? 22 A Yes, that's the whole thing. 23 Q Here was Chiquin there to feel that rifle? 24 A No, he was not. 25 Q To the best of your knowledge and belief, when you bought Why is that important? If you get them the long Is that the same thing for a teenager when you're buying a Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 11 of 31724 1 that rifle, was that rifle meant for Chiquin? 2 A It was not meant for Chiquin. 3 Q You heard the testimony from Sergio Gonzalez that that first 4 rifle was for his first son. 5 A 6 son. I disagree, and I let you know that that was not for his It was never intended for his son. 7 8 Do you agree with him or disagree? MR. PONCE: And he was there -- Your Honor, I'm going to object. It's unresponsive. 9 THE COURT: Sustained. 10 BY MR. GAMEZ: 11 Q When he was there, what happened, if anything, at Academy? 12 A Sergio? 13 Q That's what you were saying. 14 there? 15 A 16 know, what else, if anything, that we needed. 17 you know, about the ammo, the price of the ammo and everything. 18 Q 19 up? 20 A No, he did not. 21 Q Did you ever understand that this rifle was being purchased 22 for his son? 23 A No. 24 Q You saw that receipt. 25 where it had the name of Chiquin on it? What happened when he was We were talking about the ranch, about going hunting; you Did he ever tell you: About the rifle, I need my son here to size the rifle That was never the issue. It's got -- did you see the receipt Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 12 of 31725 1 A Yes. 2 3 That -- obviously it wasn't -MR. PONCE: Your Honor, I'm going to object. unresponsive. 4 THE COURT: Sustained. 5 BY MR. GAMEZ: 6 Q Did you write that name on there? 7 A No, I did not. I saw the name and the picture. 8 MR. PONCE: Unresponsive, Your Honor. 9 THE COURT: Sustained. 10 BY MR. GAMEZ: 11 Q Okay. 12 THE COURT: Please answer only the question that you 13 have been asked. 14 BY MR. GAMEZ: 15 Q 16 that particular receipt on the government exhibit? 17 A When I saw the name, you can -- 18 Q What's that? 19 A You can see the receipt. 20 writing a name on the back of a receipt. 21 Sergio -- somebody told Sergio: 22 receipt. When you saw the name, what did you think, if anything, on I have never heard of anybody It looks to me like Write this in the back of your 23 MR. PONCE: I'm going to object. 24 THE COURT: Okay. 25 It's You can't answer that question. question is, "What did you think?" The And I'm not even sure that Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 13 of 31726 1 that's clear enough. 2 3 The question is what he saw, what he heard, what he did as opposed to a speculation, Mr. Gamez. 4 MR. GAMEZ: What he saw, what he heard, what he did. 5 THE COURT: He cannot speculate about what somebody else 6 intended to do by doing whatever he observed. 7 MR. GAMEZ: 8 BY MR. GAMEZ: 9 Q 10 Trying to follow you, Judge. Okay. What do you think Sergio did, if anything, with that receipt when you saw that name on the government exhibit? 11 THE COURT: Speculation. 12 MR. PONCE: Objection. 13 THE COURT: You may not answer that question. 14 The problem is asking him what do you think he meant to do. 15 The question is what did he do, your witness, what did he do, 16 what did he say, what did he see. 17 BY MR. GAMEZ: 18 Q Okay, sir. 19 A No, I didn't. 20 Q You didn't see anyone write that name on the receipt? 21 A No. 22 Q You didn't tell anyone to write your name and his, Chiquin's 23 name on the receipt? 24 A I've never seen a name written on a receipt before. 25 Q Were you ever informed that: You didn't write that name on the receipt? I'm going to write on this Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 14 of 31727 1 receipt Chiquin's name on it? 2 A 3 know -- That wouldn't have been useful for anything because, you 4 5 MR. PONCE: Unresponsive. 6 THE COURT: 7 THE WITNESS: 8 MR. GAMEZ: 9 Your Honor, I'm going to object. Answer yes or no. No. Okay. If I may check this, Judge. BY MR. GAMEZ: 10 Q 11 excuse me, Government's Exhibit 11. 12 A Yes. 13 Q Do you know where he bought it? 14 A When I -- when he took it to my house to show it to me, and 15 he told me he had bought it at a pawn shop. 16 Q Did he ever tell you what pawn shop? 17 A No, he didn't. 18 Q And how do you believe he bought that? 19 him that he bought it at a pawn shop? 20 A 21 I'll show you what's been marked as Defendant's Exhibit -Do you recognize it? That's Sergio's wife. Why do you believe Because he told me. THE COURT: Excuse me. He says -- you're asking him why 22 do you believe somebody else did something. He can -- that 23 would be speculation on his part. 24 was told, but he can't say why he -- that he believes something 25 without there being a basis for it. He can testify about what he Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 15 of 31728 1 BY MR. GAMEZ: 2 Q 3 Sergio: 4 A Yes. 5 Q Okay. 6 A No, I did not. 7 Q Did he tell you which pawn shop? 8 A He did not. 9 Q Did he tell you someone bought it for him? 10 A No. 11 Q So what did you think of his ability to buy a firearm at 12 that time? 13 capable of buying a firearm? 14 A He is capable at that time and now. 15 Q Okay. 16 he told you he bought the firearm, or did he tell you which 17 month he bought the firearm? 18 A 19 house, it was during the summer. 20 21 So you were told by Sergio, I understand. Were you told by I bought this at a pawn shop? Did you ask him which pawn shop? He told me he bought it. That he was capable of buying a firearm or not Do you remember which -- do you remember which month He didn't tell me what month. MR. PONCE: But when he took it to my Your Honor, I'm going to object as unresponsive. 22 THE COURT: Sustained. 23 BY MR. GAMEZ: 24 Q 25 firearm in 2011 or 2010? Okay. So he didn't tell you which month. Did you see this Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 16 of 31729 1 A I saw it in 2011. 2 Q Okay. 3 A He did not. And did he tell you how long he's had the firearm? He bought it during the summer, though. 4 MR. PONCE: Object, Your Honor. 5 THE COURT: Sustained. 6 Unresponsive. You cannot answer a question that you have not been asked. 7 THE WITNESS: Okay. 8 BY MR. GAMEZ: 9 Q And you don't know what month he bought it in, right? 10 A I'm going to say June. 11 Q Do you know -- I'll get more specific. 12 period of the month, whether it's the fall, the summer, the 13 spring, winter? 14 A 15 season. 16 opened the case, and so that's why I'm using June, because of 17 fishing season. 18 Q Of which year? 19 A Of 2011. 20 Q Okay. 21 A Yes. 22 Q June, July, August, September, October, November, 2011. 23 Okay. 24 A No. 25 Q Did he ever purchase another firearm? Do you know what It was during the summer, and I remember it was fishing That's what -- because he put it on my boat and we So hunting season still didn't start until November? Did he have any other firearm at that time? That was the first time I saw him with a -- a firearm. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 17 of 31730 1 A Yes. 2 Q He purchased a second firearm? 3 A Yes, he had a .22 -- a little .22 for his kid, Lalo, and he 4 took that to the lease. 5 Q And had you seen -- did you see that .22? 6 A Yes, I did. 7 Q And did you find out from conversations from him on or about 8 when he purchased that .22? 9 A It was during the deer season. Because like I said, we went 10 to the lease, and Lalo had it in a case, and he was all excited 11 about it and he was showing it to us, and he said: 12 for Lalo. 13 Q Who's Lalo? 14 A Sergio Gonzalez's son. 15 Q So who did you see bring that .22 to the lease? 16 A Lalo was carrying it in his hand, but they were in Sergio 17 Gonzalez's truck together. 18 Q 19 hands, arms, case? 20 A 21 was showing us: 22 it out, and we went out to the little range we have at the deer 23 lease with other rifles, and we were shooting at the targets. 24 Q 25 And then he shows you a second firearm, and that was now in -- I bought it What do you mean he was carrying it in his hand? He had a gun case. In his And like I said, he was excited and he Look, my dad bought me this gun. And he took So in June of 2011, Sergio showed you his first brown 270. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 18 of 31731 1 by November, beginning of the deer season? 2 A Yes. 3 Q Of 2011? 4 A Yes. 5 Q Okay. 6 out or what did you figure out as far as on or about when he had 7 to have purchased that second firearm, between what period of 8 November to June of 2011? 9 10 It was during the first trip, I believe. So did you figure out -- have you been able to figure MR. PONCE: Objection. He's calling for him to speculate as to when it was purchased. 11 THE COURT: 12 THE WITNESS: I'll allow the question. It was my opinion that he should have 13 bought it the first week of November. 14 BY MR. GAMEZ: 15 Q Okay. 16 A No, it was a little worn. 17 papers and everything. 18 Q Okay. 19 A Yes, that's what he told me. 20 Q So you heard him tell you this? 21 A Yes. 22 Q Did you look at the firearm? 23 A Yes, I did. 24 Q And can you use a .22 firearm for deer? 25 A You can, but you're not supposed to. Did it look like a new firearm to you? But it was in a box and had the So did you understand that he bought it? Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 19 of 31732 1 Q Why? 2 A Because a .22 round is too small, and you're going to lose 3 the deer if you hit it, if you do hit it. 4 Q You're not going to stop a deer with a .22, are you? 5 A No, you're not. 6 Q He's going to run? 7 A Yes. 8 Q And he'll die in the woods? 9 A Yes. 10 Q So is that a prohibited weapon to use with deer? 11 A If, let's say, Willie Serrata were to see me shoot a deer 12 with a .22, he would -- I would have consequence at the lease 13 because that's not allowed under the lease rules. 14 Q All right, sir. 15 A Yes. 16 Q -- that you're aware of, uses a .22 for deer? 17 A No. 18 Q Did you hear Sergio testify that he could not buy a weapon 19 in December? 20 A Yes, I did hear him. 21 Q Do you believe him? 22 A I do not. 23 Q Did you ever -- did he ever tell you that he could -- So you know that no one shoots -- He can buy a weapon. 24 MR. PONCE: Your Honor -- 25 THE COURT: Excuse me. There's no question yet. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 20 of 31733 1 MR. PONCE: I was going to object to the previous 2 answer. 3 whether a purchase can be made or not. 4 It calls for a legal conclusion on his part as to THE COURT: I'll allow it. 5 BY MR. GAMEZ: 6 Q Had he made two purchases of rifles before? 7 A Yes. 8 Q In June of 2011, where did he live? 9 A In June and November for the .22. 10 Q What's that? 11 A What's that? 12 13 THE COURT: question. 14 He gave you the day. He's asking you a If you don't know, say you don't know. THE WITNESS: I didn't hear you. 15 BY MR. GAMEZ: 16 Q Where did Sergio live in June 2011? 17 A At The Border Apartments. 18 Q And in November, where did Sergio live, 2011? 19 A At the same place. 20 Q And he told you that he bought two firearms at -- while he 21 still lived at The Border Apartments? 22 A Yes, he did. 23 Q Okay. 24 in December because I just didn't have the utilities in my name? 25 A Did you hear him testify: I couldn't buy a firearm I heard him testify, but that was not true. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 21 of 31734 1 Q And you say it's not true because he just, within the past 2 six months, bought two firearms? 3 A Yes, that is why I'm saying it's not true. 4 Q And lived in the same place? 5 A Same apartment, exactly. 6 Q Okay. 7 was you on December 5th walking out? 8 A No, I do not. 9 Q And did you, in fact, put it in his truck? 10 A Yes, I did. 11 Q That day on Academy, were you going to go shopping 12 elsewhere? 13 A 14 going to continue shopping. 15 Academy, and then I was going to HEB, and I didn't want to leave 16 the rifle in my truck or my car because I don't want it in my 17 car, my mom's car for liability reasons. 18 Q And you agree you put it in his truck? 19 A Yes, I did. 20 Q And what did you do then thereafter, if anything? 21 A I told him I'd call him later, and I kept on with my 22 errands, continued with my errands. 23 Q 24 purchase that firearm? 25 A I could show you the film. I told Sergio on the phone: Do you dispute that that Can you take it home? I'm I was at Wal-Mart, I went to Now, when did you first decide that you were going to On December 5th? Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 22 of 31735 1 Q Yes. 2 A That it was -- like I said, we were -- we were getting 3 prepared for the deer season, so must have been later part of 4 November sometime. 5 Q 6 agents went to Sergio's house on the 6th? 7 A Yes. 8 Q Did you know that day? 9 A Oh, no, I did not know that date. 10 Q Did you know that next day or the day after or the day 11 after? 12 A No. 13 Q You found out in May? 14 A Yes. 15 Q Okay. 16 about the 13th, 14th, 15th, on or about that period of time? 17 A Yes, I did. 18 Q Of December 2011? 19 A Yes, I did. 20 Q Whose party was it? 21 A My brother Rolando has -- his oldest son is Louie. 22 born on December 12th. 23 was on the 18th. 24 off or what have you, we had it in the middle sometime to 25 celebrate them both at the same time, but I'm not exactly sure Okay. Now, the weapon is purchased. And did you know that I found out on May 24th. We'll get there. Now, did you have a party on or He was And my son Manuel, which we call Boy, So because of schedules coinciding and days Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 23 of 31736 1 on the date. 2 right there. 3 Q Okay. 4 A For my son Boy and for Louie, my nephew. 5 Q How old were they? 6 A Boy was turning 16, and Louie was turning 15. 7 Q When you say Boy, who's Boy? 8 A Manuel Pena, Junior. 9 Q You call him Boy? 10 A Yes. 11 Q Okay. 12 A At my house. 13 Q Now, at any time did you-all start discussing fishing? 14 A We were talking about hunting. 15 Q Hunting only? 16 A Yes. 17 Q Okay. 18 A Are you talking about December 13th or -- 19 Q It's hunting time, right? 20 A Yes. 21 Q And it's fishing -- excuse me, fishing is gone? 22 A Fishing is already over. 23 Q That's right. 24 boys are talking about hunting? 25 A Yes. It must have been 13th, 14th, 15th, in that range And it was a party for who now? And the party was where? It wasn't fishing time? So you're talking about hunting. All the Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 24 of 31737 1 Q What did y'all talk about, if anything? 2 A The deer that had been killed on the previous trip. 3 brother had some pictures about his friend that was on another 4 lease sending him pictures of what he had killed. 5 stuff, corn: 6 getting prepared for another trip after -- after the party and 7 Christmas and all that, we get real tied up during that time. 8 Q Did the subject matter of a rifle ever come up? 9 A We were there at my house sitting at a table, me, my four My General lease Hey, we need more corn and stuff like that. We're 10 brothers -- my three brothers, my sister-in-law. 11 with my brother. 12 him and invited him to the party like we always do. 13 talking about hunting, and Sergio joined the conversation. 14 was there with us, and he brought it up. 15 Q How big was the table? 16 A It's one of those, the Wal-Mart tables that fold up with the 17 chairs. 18 Q Wal-Mart, the white fold-up tables? 19 A Yes, one of those. 20 Q Were y'all sitting there? 21 A We're all sitting around in those metal chairs that -- the 22 foldable chairs. 23 Q Okay. 24 A Yes, he is. 25 Q And he appears? And Sergio showed up. She's always My brother Jorge called So we were He Eight by four, I'm assuming, three. So Sergio is invited? Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 25 of 31738 1 A Yes. 2 Q Does he say anything? 3 A (Speaking Spanish.) 4 Q He says what now? 5 gentleman to hear you at the end. 6 A He says hi to everybody. Loud enough for the lady and the His regular greeting. 7 THE INTERPRETER: 8 MR. GAMEZ: 9 THE WITNESS: (Speaking Spanish). Cuñado, how are you cuñado? She has to interpret. Okay. I'm sorry. He shakes -- he greets 10 everybody. 11 pit because he always usually cooks the majority of the time. 12 And then he starts getting into our conversation about hunting. 13 He has a seat or he's standing around the barbecue So then we're talking about hunting, and then he suggested 14 last time we went hunting, he had taken -- it was me and all the 15 kids, my brother, we all went together, and he showed up with 16 his two kids, Lalo and Sergio, Junior, and he took a nephew of 17 his. 18 BY MR. GAMEZ: 19 Q And what? 20 A Another nephew. 21 show it to him, the kid, the new kid -- 22 23 24 25 MR. PONCE: And when we're running around the ranch to Your Honor, I'm going to object as unresponsive at this point. THE COURT: have been asked. Sustained. Answer only the question you Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 26 of 31739 1 THE WITNESS: 2 THE COURT: I was leading up to the response. All right. Answer the question. If it 3 requires an explanation, please say that to your attorney, and 4 then he can pose the next question. 5 6 THE WITNESS: this -- 7 8 I can -- excuse me, I can tell him at THE COURT: Okay. I don't want you to be talking to me. I want you to answer the question. 9 THE WITNESS: Okay. Yes, Your Honor. 10 BY MR. GAMEZ: 11 Q 12 buying another rifle? 13 A No, I did not. 14 Q Did any of your brothers bring up the subject matter of any 15 other rifle? 16 A It was Sergio that brought it up. 17 Q And did you know that Sergio was already talking to the 18 agents when he -- when he went to your party? 19 A I did not know that. 20 Q Did you know he was already trying to set you up to -- 21 A I did not know that. Okay. My question is did you bring up the subject matter of 22 MR. PONCE: Objection. 23 THE COURT: Excuse me. First of all, the question is 24 not complete. The question is not complete for purposes of an 25 objection, so don't answer a question that's not complete. Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 27 of 31740 1 Don't object before the question is complete. 2 3 If you see the attorney getting up to voice an objection, don't voice an answer or don't give an answer. 4 THE DEFENDANT: Okay. I'm sorry. 5 BY MR. GAMEZ: 6 Q Sir, did Sergio want another rifle? 7 A Yes, he did. 8 Q He what? 9 A He suggested we get another rifle as the group for the For the -- he suggested it for the lease. 10 lease. 11 Q Who did he suggest get another rifle for the lease? 12 A He didn't direct himself to a general person. 13 the group since we were talking about hunting. 14 Q 15 lease? 16 He said it to Why did he suggest that everyone get another rifle for the THE COURT: Okay. That would be speculation, why 17 somebody else did or say whatever he did. You have to ask this 18 witness what he heard, what he saw, what he did. 19 BY MR. GAMEZ: 20 Q 21 another rifle? 22 A Yes, we did. 23 Q What did you agree to after Sergio brought that up, the 24 issue of purchasing another rifle? 25 A Did you consider the -- your brothers and you purchasing We talked about it, and we agreed. Sergio had already brought it up to me in conversations on Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 28 of 31741 1 the phone: Hey, let's get another rifle. And I kept on putting 2 him off because I was busy, and I didn't want to talk to him 3 about stuff like that. 4 six, seven, eight, and I didn't want to show up -- 5 Q Did you see those recordings? 6 A I saw those recordings. 7 Q Yes. 8 A He was -- now that I know that somebody was telling him to 9 do it, but he was saying, hey, and he would mention his son's Like I saw now, he called me every day 10 name, what have you, but that was never the issue. 11 it off. 12 to -- I didn't want to do it on my own, get another rifle. 13 when I saw my brothers say, well, let's do it, it's a good idea, 14 then I say, well, yeah, this -- I didn't want -- I didn't want to do it. 15 MR. GAMEZ: Okay. 16 THE COURT: Yes. 17 MR. GAMEZ: -- the display. So I played I don't want But If I may approach, Judge -- 18 BY MR. GAMEZ: 19 Q 20 on the 6th, 7th, and 8th? 21 A And I believe the 9th too. 22 Q Or 9th. 23 agree with that evidence? 24 A Yes. 25 Q Okay. So those calls -- this is important -- that was made to you On or about the 6th, 7th, 8th or 9th. And you heard the tapes? Would you Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 29 of 31742 1 A Yes. 2 Q And in all those tapes, did you say: 3 now? 4 A No. 5 Q Did you say: 6 A No. 7 Q Okay. 8 A As a group we met, and we said -- like we bought the one on 9 December 5th. Okay. Yes, I'll go right Let's do it right now? When did you finally consider to do it? Let's get another ranch rifle, and that's when I 10 go. 11 Q In one of the tapes, did you say: 12 A Yes. 13 Q Who's Jorgillo? 14 A Jorgillo is my brother. 15 ranch rifle. 16 Matamoros. 17 members of the lease that I consider a permanent member. 18 Q Was that for him to discuss it with your brother? 19 A For Sergio? 20 Q Yes. 21 A Yes. 22 Q Okay. 23 had to go and get to have you buy a firearm? 24 A 25 he was trying to do to me. You know, call Jorgillo? So Sergio wanted to buy another He's calling me. I said I'm busy. I'm in Call Jorgillo, because Jorgillo is one of the But did you know that at that time it was you that he No, I did not. Now I know it because of the tapes and what But at that point when he told me: Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 30 of 31743 1 Hey, what about this, the rifle, member of the ranch, whatever. 2 3 MR. PONCE: Your Honor, I'm going to object as unresponsive. 4 THE COURT: 5 THE WITNESS: 6 THE COURT: 7 sir. 8 answer. Sustained. So I mentioned -Excuse me. There's no question before you, Wait until the question is posed to you before you give an 9 THE WITNESS: Yes, ma'am. 10 BY MR. GAMEZ: 11 Q 12 you're busy, you're busy -- Okay, sir. 13 During these periods you're blowing him off, MR. PONCE: Your Honor, I'm going to object to the 14 characterization and testimony of defendant. 15 question. 16 Objection. THE COURT: This is not a Not asking a question. The question is not complete. 17 BY MR. GAMEZ: 18 Q 19 rifle? 20 A No, I did not. 21 Q Okay. 22 buy that additional rifle? 23 A Yes, we did. 24 Q And what did you-all agree who was going to buy it? 25 A I was. Okay. Did you agree during those phone calls to buy him the Once you met at the party, did your brothers agree to Case 1:12-cr-00472 Document 106-2 Filed in TXSD on 01/22/13 Page 31 of 31744 1 Q You again? 2 A Yes. 3 Q Who was in charge of the lease? 4 A I am in charge of the lease. 5 Q Was Sergio in charge of the lease? 6 A No. 7 Q Okay. 8 tapes, a 243? 9 A At the party we were all talking, he had mentioned a 243. 10 Q What is a 243? 11 A A 243 is a smaller caliber round. 12 considered a deer rifle starts at 223. 13 next one is 243, then it goes up to 270. 14 270 is the optimum amount for a deer. 15 big, so he wanted a 243 to go down, and we disagreed on that. 16 Q 17 bullets and you couldn't share it? 18 A Yes. 19 Q Did you have a laser for a 243? 20 A No, we did not. 21 Q You only had a laser that fit what type of rifle? 22 A The 270. 23 Q So did you tell him -- what did you tell him, if anything? 24 A I explained to him that that would -- that would throw 25 everything off. He's a guest. Now, at that time did he request, as you heard the What -- what is It's a small -- then the And in my opinion, the The 30-06 would be too That would cost more because you have to buy different We kept it uniform for the bullets and for -- We needed a 270 to keep it uniform. You know, Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 1 of 41 745 1 we weren't going to buy more sighters, more different 2 ammunition. 3 Q This is you and your brothers? 4 A Yes. 5 Q Okay. 6 A We all agreed, yes. 7 Q Did Sergio ever tell you: 8 or you, Manuel, to buy a firearm for my son? 9 A No, he did not. 10 Q At that party? 11 A No. 12 Q You heard on the tape he's saying it's -- I need a rifle for 13 my -- Christmas for my son? 14 A 15 When he talked to me in person, he said: 16 Christmas? 17 25th nobody is going to get together, we can go. 18 to go with him and his son and my son. 19 the Christmas trip, the rifle for Christmas. 20 took it when he called me. 21 Q 22 before? 23 A 24 several occasions, we have. 25 Q So finally did y'all agree? I need you-all to buy a firearm He meant because we were going hunting during Christmas. I go: We're going hunting Well, if we celebrate it on the 24th and the And I offered So he was meaning for That's the way I Have you gone after Christmas morning to the deer lease Yes, several occasions. It's not uncommon, is it? We didn't go this year, but on Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 2 of 41 746 1 A No. 2 Q And you take your kids with you? 3 A They like going up there during the cold. 4 Q Sometimes you take your wives with you? 5 A Yes. 6 Q Did you ever understand prior to that phone call: 7 gift for my son and no one else? 8 A No, I did not understand it like that. 9 Q Had you ever heard him say: It's a This is a gift for my son and 10 Christmas at the party and for no one else? 11 A No. 12 Q What would you have told him, if anything, if he asked you 13 to buy a gift just for his son at the party and no one else? 14 THE COURT: Speculation. You don't have to answer that 15 question. Or you cannot answer that question. You have to ask 16 him what he did, not what he would have done. 17 BY MR. GAMEZ: 18 Q 19 buying that second rifle on December the 19th? 20 A 21 play with them, get them dirty, drop them. 22 those rifles. 23 Q 24 firearm and show you the receipts -- I'm trying to move things 25 along. So in your mind, in your intent, what was the purpose of you For the deer lease so the little kids, the children could Okay. Nothing happens to So if I were to show you the tapes and show you the I don't have to do that. You're admitting that you did Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 3 of 41 747 1 purchase it? 2 A Yes, I did purchase it. 3 Q And you are the purchaser of that transaction? 4 A Yes, I am. 5 Q And in all this time from Sergio told you, did you believe 6 that Sergio was a person that could have a firearm? 7 A Yes, I did. 8 Q And from what he had told you, the guns and rifles he had 9 purchased, did you believe he could purchase a firearm? 10 A Yes, I did. 11 Q Now, I'm going to ask you questions regarding May. 12 remember May of 2000 and what year now? 13 A '12. 14 Q '12? 15 A Yes. 16 Q What happened on that day? 17 particular day? 18 A 19 daughter at Vela Middle School on Paredes at approximately 7:20. 20 When I was coming back to work, I take Morrison to get back on 21 the expressway. 22 units -- 23 Q 24 I know you're excited and you want to talk and you want to speak 25 to the jury and, please, just answer my question. Do you Did you see anyone on that I was driving to work in the morning. I dropped off my Well, before that I noticed there was a -- some Sir, would you please now, please, just answer my questions. Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 4 of 41 748 1 Who did you see that was unusual for you, shall I say, on 2 that particular day? 3 A When I got pulled over? 4 Q Yes. 5 A Who did I see? 6 Q Yes. 7 with you -- 8 A Yes. 9 Q -- facts of this case? 10 A Yes, I did. 11 Q What agent did you see? 12 A I saw Tony Cantu. 13 Q Okay. 14 A No, I saw him in his vehicle. 15 Brownsville PD unit, and I was approached by Jaime Cavazos. 16 Q 17 Cavazos? 18 A Yes. 19 Q Am I correct? 20 A And several others. 21 Q Okay. 22 want to talk to you there at PD, Brownsville Police Department, 23 or somewhere else? 24 A 25 we could talk to the FBI office. Okay. And what day in May? Did you see an agent regarding this case to discuss How did you -- were you approached by Tony Cantu? I was stopped by a Now, you're approached by Tony Cantu and Jaime And without asking you what they asked you, did they They pulled me over, and they asked me to come with them so Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 5 of 41 749 1 Q Okay. Did you go with them? 2 A Yes, I did. 3 Q Okay. 4 that they were going to ask you questions -- did they ask you 5 questions about the May -- excuse me, December 5th purchase? 6 A Yes, they did. 7 Q Of a 270? 8 A They did. 9 Q Okay. Now, please answer my questions. Did you find out And did they -- did you discuss the subject matter 10 with them regarding the purchase of the 270? 11 A Yes, I did. 12 Q Did they mention to you about a person by the name of Sergio 13 Gonzalez? 14 A They did. 15 Q Did you explain to them that you knew Sergio Gonzalez? 16 A I told them my relationship with Sergio, yes. 17 Q And did you tell them everything you knew about Sergio 18 Gonzalez as far as your relationship with him and your family? 19 A 20 close we were and everything. 21 Q 22 of the lease? 23 24 25 I explained everything to them about our relationship, how Okay. Did you tell them that Sergio Gonzalez was a member MR. PONCE: Your Honor, I'm going to object. continues to lead his witness in these questions. THE COURT: Sustained. He Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 6 of 41 750 1 BY MR. GAMEZ: 2 Q Did you discuss the lease with the agents present? 3 A Yes, I did. 4 Q Okay. 5 present? 6 A There was approximately seven agents. 7 Q Okay. 8 A Yes, he was. 9 Q That's the individual right here. 10 A Yes, I do. 11 Q Was Dean there, Michael -- excuse me, Mr. Dean there? 12 A Yes, he was. 13 Q Was Albert Torriz there? 14 A Yes, he was. 15 Q And some others? 16 A Yes. 17 Q Okay. 18 A No, I did not. 19 Q Okay. 20 A Yes, I was. 21 Q 2011. 22 purchase, or were you not accused of being involved in a straw 23 purchase on that day? 24 A They were accusing me of it. 25 Q And did you admit to a straw purchase, or did you not admit Who was -- how many -- were there more than one agent Was Shaun Owens there? Do you recognize him? Now, did you need an interpreter? Were you asked about the purchase on December 5th? Were you accused of being involved in a straw Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 7 of 41 751 1 to a straw purchase? 2 A 3 what happened. 4 Q 5 you explained to me exactly what you explained to me, is that 6 what you've already explained to the jury? 7 A Yes, what I explained to the jury. 8 Q Okay. 9 A Yes. 10 Q Okay. 11 take more time, you agreed to it? 12 A Yes, I did. 13 Q You agreed that you purchased them? 14 A Yes. 15 Q Did you -- what did you tell them about the involvement of 16 your brothers in the purchase of the May 5th firearm? 17 A 18 buy them for the lease, just like I've explained to the jury 19 today. 20 Q 21 the December 19th, 2011, purchase? 22 A 23 together. 24 explained to them Sergio came and -- 25 Q No, I explained to them, as I've explained to you, exactly What did you tell them about when you say you -- I -- when Did you agree that you signed the 4473s? Both of them. Without having to show them to you and I explained to the agents that the same -- we pitched in to Okay. And what did you tell them about the purchase of -- The same thing. I told them about the party when we were I wish they had it recorded. You wish they would have what? They didn't, but I Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 8 of 41 752 1 A Recorded my conversation. 2 Q Okay. 3 A No. 4 Q Just answer my question, please. 5 A Yes. 6 Q Okay. 7 the straw purchase, of lying to that FBI agent? 8 A I understand that fully. 9 Q And do you have an opinion as to whether or not you lied to 10 that agent? 11 A 12 13 But that didn't happen? Do you understand that you're being accused, besides I did not lie to him. MR. PONCE: I explained to him exactly -- Your Honor, I'm going to object. Nonresponsive. 14 THE COURT: I'm going to allow it. Overruled. 15 BY MR. GAMEZ: 16 Q 17 understood how this could look like a straw purchase? 18 see how in appearance it could look like a straw purchase? 19 A 20 happened, it was not a straw purchase. 21 Q Okay. 22 A I told them exactly, and I asked my brothers afterwards, and 23 nobody was -- 24 Q Did you ask them to talk to your brothers? 25 A Yes, I did. You can -- do you understand or did you see how they The way they set it up, yes. Did you But the way it actually Now, did you ask them to talk to my brothers? Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 9 of 41 753 1 Q Okay. You heard testimony that your -- one of your brothers 2 was called most recently. 3 A Yes. 4 Q Do you know when they called him? 5 A They called him right before my trial started, about a day 6 or two before. 7 Q Before the trial started? 8 A Yes. 9 Q Were you already indicted? 10 A I was already under indictment, so -- 11 Q You were already arrested? 12 A Yes. 13 Q Do you know if they contacted any one of your brothers 14 regarding this case prior to the indictment? 15 A 16 purchasing part of the -- supplying the money for the weapon. 17 Q 18 the indictment -- that you used these firearms. 19 these firearms, those being the two firearms purchased on 20 December the 5th and December 19th? 21 A When they asked me -- 22 Q Did you use -- 23 A I did not use them, no. 24 Q -- the firearms? 25 A No. They did not, even though I mentioned they were involved in Now, if I may. It's alleged in the indictment -- show me Did you use Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 10 of 41754 1 Q Okay. Did you understand from your conversation -- what did 2 you understand from your conversations about whether you used 3 these firearms? 4 A 5 them anywhere, and I told them no. 6 Q 7 that he believes you said: 8 and sight them in, or something like that? 9 A They were asking me if I had used them, shot them, or taken But did you understand the testimony from Shaun Owens saying I took them to the ranch to shoot Yes, he said that, but that was not true. If they were 10 surveilling me, they would have seen that I didn't go to the 11 ranch. 12 THE COURT: Excuse me, answer only the question. 13 BY MR. GAMEZ: 14 Q 15 question. 16 A Yes, sir. 17 Q Okay. 18 sight them in? 19 A No, I did not. 20 Q Okay. 21 A I took my Mossberg 270 -- 22 Q Yes. 23 A -- to the ranch -- not to the ranch, to sight in at the -- 24 by Cameron County, an empty field there. 25 Q Please, sir, as the judge states, please answer the Okay. Did you take those firearms, the 270s, with you to Did you take your firearms, your rifle? Now, all the time you heard them say that they had Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 11 of 41755 1 the firearms -- 2 A Yes. 3 Q -- already in May 2012? 4 A Yes. 5 Q Okay. 6 A I sighted mine, the Mossberg, and we were trying to get the 7 ranch rifles, but Sergio had them, and he kept on putting me off 8 on the phone that he had taken off to work or whatever in 9 Tennessee, so we ended up going, me with the Mossberg, and my Do you know which firearms were sighted in? 10 brother took his Browning. 11 MR. PONCE: 12 Your Honor, I'm going to object. Nonresponsive. 13 THE COURT: Sustained. 14 BY MR. GAMEZ: 15 Q Did Sergio go to sight those firearms in? 16 A No, he did not. 17 Q The officers, I believe, says that you made the 18 representations that were false that you personally used those 19 firearms. 20 A I did not use them. 21 Q Do you have any -- would there be any fingerprints of yours 22 on those firearms? 23 A 24 and feeling it around, see if I liked it. 25 Q Did you use those firearms? There could be because when I bought it, I was looking at it Do you know, have I ever presented you with any fingerprints Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 12 of 41756 1 on those firearms, you using them to sight in a rifle? 2 A No. 3 Q Now, did you ever tell the agent: Go talk to Sergio? 4 A Yes. He would bring the rifles 5 in. 6 Q 7 in? 8 A 9 rifles. I told them to call Sergio. What do you mean: Go call Sergio. He'll bring the rifles When he asked me about these rifles, if they're my ranch 10 Yes. 11 Where are they? 12 I said: Sergio has them. Can I call him? 13 Q Talk so the last juror can hear you, please. 14 A The Agent Owens asked me about the rifles that I bought on 15 the 5th and the 19th. 16 had them, my friend and deer hunting partner. 17 Do you want me to call him for you and he can bring them so you 18 could see them, or what's the problem here? 19 me not -- you know. 20 Q Did he then call Sergio Gonzalez? 21 A No, he never called Sergio. 22 Q Did you ask him to call Sergio Gonzalez? 23 A Yes. 24 to. 25 Q And I advised them that Sergio Gonzalez And I asked him: And he -- he told And I offered to call him myself, and I wasn't allowed What do you mean you weren't allowed? Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 13 of 41757 1 A Well, they had my phone. So I said: 2 and I'll call Sergio and he can show up? 3 Q Can I have my phone, And he said no, no. What were you going to tell Sergio, if anything? 4 THE COURT: Speculation. What would he have done. What 5 he did, what he said only. 6 BY MR. GAMEZ: 7 Q What did you want to tell him about the rifles? 8 A I wanted to tell Sergio to show up at the FBI office with my 9 rifles so they could check them and verify that I'm not lying. 10 Q What do you mean you wanted to call him and tell him show up 11 with them? 12 A 13 Mr. -- so Owens could see the rifles, verify that they're mine 14 and I have control of them, like I do. 15 call Sergio for that. 16 Q Were you allowed to call him? 17 A They did not allow me to call. 18 Q Did you buy these firearms for Sergio Gonzalez, his personal 19 use? 20 A No, I did not. 21 Q Did you buy these firearms for each one of his sons? 22 A No, I did not. 23 Q Is his wife a United States citizen? 24 A Sergio's wife is a United States citizen, yes. 25 Q Do you know if United States citizens can buy firearms? They were at his house, so I said I wanted to call him to And I wasn't allowed to Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 14 of 41758 1 A They can. 2 Q Are you a United States citizen? 3 A Yes, I am. 4 Q Can you buy a firearm? 5 A Yes, I can. 6 Q Can you loan, if you know, your firearm to someone else? 7 A Yes, you can. 8 Q Is there anything else you want to tell me about the 9 firearms or tell the jury about the firearm purchase? 10 11 MR. PONCE: Objection, Your Honor. Too general of a question. 12 THE COURT: Sustained. 13 MR. GAMEZ: I pass the witness, Judge. 14 THE COURT: All right. 15 Mr. Ponce? CROSS-EXAMINATION 16 BY MR. PONCE: 17 Q 18 understand my question or I don't ask it loud enough, please let 19 me know so I can repeat myself or phrase it in a way that's 20 understandable, okay? 21 A Yes, sir. 22 Q You said that you know Sergio since 1999; is that correct? 23 A Yes. 24 Q More or less. 25 point in time, a collector at the bridge? Mr. Pena, I'll be asking you a few questions. If you don't Around 2000, 1999. Okay. Be a bridge -- or back then at some Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 15 of 41759 1 A Yes, collector or security guard. I'm saying '99 because I 2 got here in '99. 3 Q And you said that you hunt and fish with him? 4 A Yes. 5 Q You visit at his hometown? 6 A Yes. 7 Q And in your hometown? 8 A Yes. 9 Q His hometown -- Matamoros is his hometown or where? 10 A No, he's from Jimenez, Mexico. 11 Q And your hometown? 12 A My hometown is Matamoros. 13 Q Matamoros? 14 A Yes. 15 Q When you say that you pay the lease for the -- for the gun, 16 you're talking about just one person being on the lease that 17 perhaps signs a piece of paper saying they're the ones that are 18 going to be the lessee; in other words, have the right to go 19 upon the premises for hunting, correct? 20 A 21 these rules, and they let you know what you can or cannot do on 22 the property. 23 Q And you sign that? 24 A Yes, I did. 25 Q And you signed that when for the first time? That's where I was born anyways. There's an actual lease agreement that I sign in agreeing to Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 16 of 41760 1 A You sign it at the beginning of the season, you know, every 2 year. 3 Q So you signed it the year before? 4 A Yes. 5 Q So how many years have you been on that particular lease? 6 A I'm not exactly sure; but to be safe, I'm going to say three 7 years. 8 Q But at least two for sure? 9 A Yes. 10 Q This past hunting season and the hunting season before? 11 A Yes. 12 Q So that would be November 15th of 2010 to January 15th of 13 2011? 14 A I'm not real sure of the dates, but -- 15 Q Well, when are the dates for hunting season? 16 a bit from year to year? 17 A 18 for doe and after for kids, and so they're confusing. 19 season I hunt is the 15th to the 15th. 20 Q 21 concerned about when you can do it and when you can't. 22 leases that you did sign are for white tail, November 15th, 23 2010, to January 15th, 2011 -- excuse me, 2011, correct? 24 then this past hunting season, November 15th, 2011, to 25 January 15th, 2012? Do they change November 15th to January 15th, but there's -- before for -- And that's what I'm talking about, your season. But the I'm not But the And Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 17 of 41761 1 A You're talking about the season, the deer white tail season. 2 But the lease agreement gives you access to the ranch year 3 round. 4 Q 5 you can't go hunting for white tail deer if it's out of season, 6 correct? 7 A No, you can't. 8 Q So essentially you're blocked between those dates, correct? 9 A Because there's dove and javelina and pig where the seasons I have the keys at home. Okay. Well, then, that's -- let's clarify that then. You have access to the ranch year round. But 10 are different. Deer 11 season is November to January, yes. 12 Q 13 this entire time, correct? 14 A Yes. 15 Q You say that you and your brothers split the money to pay 16 for this -- for this lease, correct? 17 A Yes. 18 Q And that Sergio generally doesn't pay. 19 and he cooks out there and drives people around, and he's the 20 designated driver and whatnot? 21 A 22 and our hunting group. 23 Q 24 use him as a -- as an assistant, as a gopher for stuff because 25 he does the cooking there and at your parties and other places And we've talked about here, you're hunting for deer during He pays, but not like we pay. He just brings food He's a member of our family Do you generally -- do you and your brothers generally just Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 18 of 41762 1 and takes you-all around here and there? 2 A 3 of our family. 4 Q 5 designated driver and other things like that, correct? 6 A 7 not because we told him not to. No. I would consider him like my brother. But he's the one that does these things about being Yes, because he's polite, and he doesn't drink by choice, 8 9 He offers to do those things, but we treat him as part MR. PONCE: May I ask that this witness be responsive, Your Honor? 10 THE COURT: The witness is so instructed. 11 THE WITNESS: Yes, ma'am. 12 BY MR. PONCE: 13 Q 14 Mossberg? 15 A 2009, I'm assuming. 16 Q You testified that Sergio has gone on numerous times to 17 hunting with you and the others, correct? 18 A Yes. 19 Q And that's over the period of two or three years that you've 20 had this lease; is that correct? 21 A Yes, that is correct. 22 Q Do you know how many times he went during -- let's say not 23 this hunting season, and I'm talking about the deer season, but 24 the year before? 25 January? Sir, when did you get your laser sight for your weapon, that I'm not sure. Any -- between November and, let's say, that Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 19 of 41763 1 A Exactly how much? 2 Q More or less? 3 A I don't want to assume, but more than two. 4 Q More than two. 5 A Yes. 6 Q And how about this season that just -- that's just over, 7 2011, 2012? 8 A Four maybe. 9 Q Four times about? 10 A About. 11 Q And did his -- did his and the rest of the kids go during 12 those times also? 13 A 14 so it could be four with me, but it could be three with my 15 brothers, so -- 16 Q Yes. No. The previous season? He takes his kids, but he also goes with my brothers, So during the -- 17 MR. PONCE: May I approach the board? 18 THE COURT: Yes. 19 BY MR. PONCE: 20 Q 21 here a line, November 15th, 2011, to January 15th, 2012. 22 the most recent deer season, correct? 23 A Yes. 24 Q Now, during that time period, how many times did you go out 25 to hunt out there at that lease? Let's talk about the -- this last season. I've written up That's Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 20 of 41764 1 A Exactly I don't recall; but like I said, six, four, six. 2 Q About four to six times? 3 A Yes. 4 Q Generally when you go, would that be like a weekend or a -- 5 or during the week, what? 6 A 7 to coincide with days off. 8 rarely ever on the weekends because the weekends are always 9 saturated at the deer lease. When we go hunting, it's -- when we're going to go, we have Either I trade my days off, but it's 10 MR. PONCE: May I approach again, Your Honor? 11 THE COURT: Yes. 12 BY MR. PONCE: 13 Q So you said four -- four to six times. 14 A Yes. 15 Q And I'll put my line here, because you've indicated four to 16 six times. 17 A Yes. 18 Q During this period here, how many times did you -- did your 19 brothers go? 20 A I don't know. 21 Q But you're the person who is -- has the keys and are on the 22 lease and whatnot, so they don't tell you when they're going out 23 there? 24 A 25 been co-workers for 15 years, so there's an understanding that I That's you? You see that? The lease master, Willie Serrata, is my friend, and we've Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 21 of 41765 1 made copies, and my brother has copies of the keys. 2 Q Okay. 3 A And I believe Sergio has copies of my keys too. 4 Q So -- but you know that they also went during that time when 5 you weren't there? 6 A They have gone without me, yes. 7 Q But I'm talking about during this past hunting season. 8 A Well, you're asking me how many times I went. 9 four to six. I told you Are you asking me four to six times they were 10 there? Then I'm not sure. 11 Q 12 know if your brothers also went during that time period. 13 A Yes, they did. 14 Q At times that -- how about at times that you didn't go? 15 A Yes. 16 Q So which brothers are those? 17 A I have three brothers that testified: 18 Rafael. 19 Q So they don't always go together? 20 A Most of the time, but not always together. 21 Q So if you know -- you know that they've gone, how many times 22 would you estimate then that they went that you didn't go, more 23 or less? No, no, that's not my question. My question is whether you Rolando, Jorge and 24 MR. GAMEZ: Your Honor, that's asking him to speculate. 25 THE COURT: Sustained. Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 22 of 41766 1 BY MR. PONCE: 2 Q 3 just a more or less by pulling a number out of the air. 4 many times do you recall them telling you that they were 5 actually going out there to the lease? 6 A I don't recall them -- what you're asking me. 7 Q You don't recall? 8 going, at least? 9 A 10 How But they did tell you that they would be Like I told you, they have keys, so sometimes they go every -- are going to go together, we go. 11 12 How many times -- and I don't want you to just -- give me MR. GAMEZ: Objection. Question has been asked and answered, Judge. 13 THE COURT: 14 No, he's answering a different question. Please, sir, answer only the question you have been asked. 15 THE WITNESS: Can you repeat the question? 16 BY MR. PONCE: 17 Q 18 about the keys. 19 this time period perhaps that you didn't go, correct? 20 A They did not tell me. 21 Q They never told you that they would go out there? 22 A They didn't -- I don't understand what you're trying to -- But they told you that they were going. I'm not asking But they told you that they were going during 23 MR. PONCE: May I approach up here, Your Honor? 24 THE COURT: Yes. 25 BY MR. PONCE: Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 23 of 41767 1 Q Well, you're talking about going -- you told us you went 2 between this time period four to some -- some four to six times 3 or so, correct? 4 A Yes. 5 Q So my question is, and then you said that you don't always 6 go when your brothers go; is that correct? 7 A Yes. 8 Q So -- and you've told me that your brothers also have keys 9 to the lease, correct? 10 A Yes. 11 Q You've told me that they go on occasions without you, 12 correct? 13 A Yes. 14 Q So my question to you is, if you know, did they go during 15 this hunting season to the lease when you didn't go? 16 A Yes. 17 Q So did -- do you know -- well, you know that they did go 18 because they told you, correct? 19 A Yes. 20 Q Okay. 21 or five -- four to six times plus -- plus whatever times your 22 brothers went, correct? 23 A Yes. 24 Q When was the first time that you went to the lease on -- 25 during that -- this season that we have up there? So at this lease then we're talking about your four Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 24 of 41768 1 A The season opens the 15th, but it was sometime after that. 2 I didn't go for opening season, opening weekend, what they call 3 it. 4 Q Excuse me? 5 A I didn't show up for opening weekend, what it's called in 6 the deer season. 7 Q 8 as you can before the season is over, correct? 9 A Yes. 10 Q So if you didn't go on opening -- at the opening time, then 11 it wasn't much long after that that you did go, correct? 12 A We weren't ready to go yet. 13 Q Okay. 14 A I believe -- 15 Q Is that correct? 16 A I believe I hadn't even paid the second half of the lease to 17 Willie. 18 Q 19 sometime already or talking about it sometime in October and 20 before hunting season actually began, right? 21 A 22 weren't prepared to go on opening weekend. 23 Q And so when did you pay Willie and did, in fact, go? 24 A That is what I'm answering. 25 it was after opening weekend. But generally as a hunter, you try to go out there as soon You weren't ready to go? But you did say that you-all were making arrangements Yes. We were preparing to go, but we owed Willie, and we I'm not exactly sure when, but Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 25 of 41769 1 Q Well, if it was after opening weekend, was it December 26th? 2 THE COURT: Excuse me. First of all, Mr. Gamez, I am -- 3 didn't want to interrupt Mr. Ponce. 4 question is complete before you urge an objection. 5 You have to wait until a Mr. Ponce, complete your question. 6 BY MR. PONCE: 7 Q 8 finally December 28, 29th or January when you finally paid 9 Willie and got yourselves out there to the ranch? If you wanted to go there as soon as you could, was it 10 11 MR. GAMEZ: Your Honor, that's a multifarious question. He's arguing with the witness. 12 THE COURT: 13 THE WITNESS: Overruled. Repeat your question. 14 BY MR. PONCE: 15 Q 16 your brothers could go out there and hunt those four to six 17 times as well as however many times your brothers went? 18 A After November 15th. 19 Q Well, could you be more specific? 20 January 3rd? 21 lease? 22 A 23 after November 15th and before January 15th. 24 Q 25 you space out your hunting trips? At about what time did you finally pay Willie so you and Was it January 1st, What time, if you went that many times to the deer If you're asking me when was the first time I went, it was When you go out there, how many -- about how many days do And I'm talking about yours, Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 26 of 41770 1 your four to six that you say. 2 A What do you mean by space out? 3 Q Well, do you hunt -- are you out there three days in a row 4 and then come home one day and then go out there three more days 5 and then come back one more day? 6 A 7 personal preference. 8 and hunt in the afternoon, hunt in the morning, and then come 9 back in the afternoon. Okay. That's what I'm talking about. We usually show up in the afternoon. This is my I show up at the deer lease around 3:00 10 Q Generally from one -- two-day kind of deal? 11 A Yes. 12 Q So those four to six days that you're taking about, there 13 were two days here, two days there, two days there, more or 14 less? 15 A 16 times. 17 Q Four to six times that you've gone out there, correct? 18 A Yes, yes. 19 Q That's what I believe I understood. 20 let me ask you this then. No, I didn't say four to six days. I said four to six But let me ask you -- You're -- 21 MR. PONCE: May I approach, Your Honor, the board? 22 THE COURT: Yes. 23 BY MR. PONCE: 24 Q 25 the hunting lease these four to six times. You're telling me that you have no idea when you got out to You just know that Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 27 of 41771 1 it was between this date here and this date here? 2 A 3 going to give you an incorrect answer. 4 know exactly. 5 Q 6 it possible that it was all from January 1st to January 15th, 7 all those four to six trips? 8 A 9 10 11 12 13 I would have to check my schedule, my days off. Okay. I'm not I'm telling you I don't That is my answer. Let me just say, if, in fact, as you think back, is No. MR. GAMEZ: Your Honor, he's asking him to speculate, and he's being argumentative with the witness. THE COURT: Overruled. But it's 12:00. I'm going to recess the jury until 1:30. During this recess, you're still under my admonishment that 14 you must not form or express any opinion about the facts of this 15 case and cannot do so until it has been submitted to you for 16 your deliberation. 17 And just so you know, we will have menus when you return 18 that we're going to ask you to check to see what your preference 19 is so that if it becomes necessary to order dinner for you, 20 we'll have it ready to go. 21 22 23 24 25 Thank you very much. (Jury leaves courtroom) THE COURT: All right. Please be seated. So, Mr. Gamez, is it your intention after this witness' testimony is concluded to rest? MR. GAMEZ: Yes. Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 28 of 41772 1 THE COURT: All right. 2 anticipating any rebuttal? 3 MR. PONCE: Then, Mr. Ponce, are you At this time not, Your Honor. I don't know 4 exactly what else will develop; but if there is, it should be 5 something very short. 6 THE COURT: All right. Because I -- I'm going to have 7 you-all get a copy of a charge that at least I want you to start 8 looking at. 9 you leave for lunch, wait around and see so we can get it to you And I'm not sure whether we have it now, but before 10 and that way we can -- you can have something to look at. 11 Because the way things are going, it appears that we may -- the 12 evidence may not close until at least 3:00 at the very latest 13 hopefully. 14 with something, if there's any objections, and then, you know, 15 read the charge and arguments, I'm -- it looks like the jury 16 wouldn't get this case until around 4:00 hopefully, the very 17 latest. 18 you an opportunity to review what I'm proposing, please stick 19 around for a copy. 20 21 22 23 And then by the time we work on the charge, come up But anyway just for planning purposes, in order to give Thank you. (Recess taken from 12:03 to 1:39.) THE COURT: Thank you. Please be seated. Ms. Betancourt, what is it you wish to tell me? MS. BETANCOURT: Your Honor, I got a phone call during 24 the lunch hour and was asked to call Officer Ray Rora who was 25 our on witness list and is a potential rebuttal witness. And Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 29 of 41773 1 Office Rora said he was uncomfortable, wanted me to know that 2 when they broke for lunch, he was walking downstairs, and he was 3 approached by Frank Cardenas, who was walking with the 4 defendant. 5 list for the defendant. 6 defendant, asked Officer Rora, why are you here? 7 Rora replied: 8 said: 9 And Officer Cardenas asked him: Frank Cardenas is a gentleman who was on the witness And Frank Cardenas, in front of the I'm here to testify in a case. Which case? And he said: And Mr. Cardenas It was a traffic stop I made. Well, what was the name of the 10 guy? 11 But he says: 12 about. 13 name? 14 know we're not supposed to be talking about this. 15 not be talking about this. 16 17 And Officer Rora says: You know what? And Officer You know what? I don't remember. It's that same guy you called me And then Frank Cardenas says: Well, what is the guy's And that's when Officer Rora said: You know what? You We need to And he says when that happened, then the defendant, Mr. Cardenas, did walk away from him. 18 THE COURT: Mr. Gamez, anything you want to say? 19 MR. GAMEZ: I don't know what she's talking about, 20 Judge. 21 I understand of that conversation. 22 My client didn't have anything to do with that from what THE COURT: You're an officer of the court. It's your 23 obligation to tell me what, if anything, you have learned about 24 what might have transpired. 25 please. And do so at the microphone, Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 30 of 41774 1 MR. GAMEZ: I've asked my client, Judge, not to discuss 2 this case. And the best of my knowledge and belief, he's not 3 discussed this case with Mr. Rora or had any part of the 4 conversation from what he tells me, and he's here. 5 THE COURT: Was he present? 6 MR. GAMEZ: Were you present, Mr. Pena? 7 THE DEFENDANT: 8 MR. GAMEZ: 9 10 I was walking -- Step up here. truth. THE DEFENDANT: I was walking to Mr. Gamez's office for 11 lunch, but Frank was behind me. 12 to him at all. 13 I've asked you to tell the I just said bye. I didn't talk I thought he was leaving to go home. THE COURT: Did you hear any of the comments that 14 Ms. Betancourt has reported to me that were reported to her by a 15 potential witness? 16 THE DEFENDANT: No, Judge. I know both of them are 17 co-workers and friends, and it looked like they were talking 18 about work. 19 I had to go to Mr. Gamez. I didn't pay attention to it. 20 THE COURT: Okay. 21 witness Cardenas yourself? 22 MR. GAMEZ: Over this incident? 23 THE COURT: All right. I was thinking about Mr. Gamez, have you spoken to the Absolutely not, Judge. All right. Because you 24 understand that potentially someone might see it as an effort to 25 intimidate a witness for the government. So I just want to make Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 31 of 41775 1 sure, Mr. Gamez. I'm not saying -- I'm not even suggesting or 2 it's not crossing my mind at all that you would have had 3 anything to do with it. 4 placed under the rule and being instructed by the Court that 5 they're not to talk about this case with anyone, not even with 6 each other unless they do so in front of -- with one of the 7 attorneys for the government or yourself and that they cannot do 8 so in the presence of any other witness, I'm going to allow you 9 to instruct this witness, who I don't know whether -- I don't But as far as the witnesses being 10 know whether it's a witness who you expect to remain either at 11 his own behest or at the behest of your client, but I'm going to 12 ask you to instruct the witness that he is not to speak to 13 anyone who is related or might have a connection to this case. 14 And should he do so any further, that he does so at his peril. 15 MR. GAMEZ: Yes, Judge. 16 police officers. 17 let them go. 18 witnesses in this case. 19 I understand they're both I'm not -- I asked the Court to allow me to I mean, I no longer intend to use any character THE COURT: No, he has to remain in the event that there 20 is an ancillary proceeding in connection with what I've been 21 told by the government. 22 MR. GAMEZ: Yes, Judge. 23 THE COURT: All right. 24 MS. BETANCOURT: 25 THE COURT: Nothing further, Your Honor. All right. Then please bring back the jury. Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 32 of 41776 1 COURT CLERK: 2 THE COURT: Yes, Your Honor. Actually before you do that, Mr. Gamez, I 3 did ask you to instruct anyone who is here in support of your 4 client whether it -- originally on the witness list but now been 5 released by or told that they're not going to be called, that 6 especially the witness who we've been talking about, Cardenas, 7 that he is not to talk to anyone about this case in any form 8 whatsoever. Do so right now. 9 MR. GAMEZ: May I do that right now again? 10 THE COURT: I'm asking you to do that. 11 Please bring in the jury. 12 (Jury enters courtroom) 13 THE COURT: Thank you. Please be seated. 14 Good afternoon. 15 Sir, would you please take your place in the witness chair? 16 Mr. Ponce, you may proceed. 17 MR. PONCE: Yes, Your Honor. CROSS-EXAMINATION (Continued) 18 19 BY MR. PONCE: 20 Q Your name for the record again, sir? 21 A Manuel Eduardo Pena. 22 Q I'll pick up where we left off this morning right before our 23 lunch break. 24 here regarding how many times you went during that time period 25 between November and January. And I'll move on from what we were talking about You've told us it was about four Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 33 of 41777 1 to six times and then plus the other number of times your 2 brothers went. 3 Did you say that you have keys to that lease? And, of 4 course, you're entitled to hunt as well, as your brothers, at 5 other times other than deer season? 6 A Yes. 7 Q So essentially it's year-round lease? 8 A Yes. 9 Q And what other kinds of game do you hunt there? 10 A I don't. 11 Q You don't hunt anything else? 12 A We show up to maintain the feeders and stuff. 13 and stuff, but I don't -- it's too hot in the summer. 14 Q And your brothers? 15 A No, they don't do it either. 16 Q So it's just essentially deer season? 17 A That was simply that it is a possibility for you to hunt, 18 but we don't hunt. 19 Q So -- and you're talking about the white tail deer, correct? 20 A Yes. 21 Q So at the beginning of that deer season, then there's 22 certain -- before actually you-all were discussing that you-all 23 needed another rifle there, another rifle there because perhaps 24 there are too many people and you need another 270 is what 25 you've testified, correct? There is hog Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 34 of 41778 1 A That was kind of long. Can you repeat the question, please? 2 Q Prior to the beginning of deer season, there was some 3 urgency regarding trying to get a 270 because deer season was 4 about to start, correct? 5 A Among the lease fee, the two blinds and the rifle, yes. 6 Q Well, those were the things y'all discussed, right? 7 A Yes. 8 Q And you-all discussed them prior to the beginning of deer 9 season? 10 A I believe so, yes. 11 Q And it continued, you said, for maybe into the beginning of 12 the deer season, correct? 13 A Continued what? 14 Q That -- discussions like that. 15 began, those issues were already resolved? 16 A 17 for it, yes. 18 Q 19 resolved? 20 A I told you I wasn't ready for deer season. 21 Q Well, within a few weeks after that? 22 A I'm not sure exactly when, but I was not ready exactly on 23 opening weekend. 24 Q 25 know, let's say late deer season, meaning the early part of Or by the time deer season We were talking about what we needed and trying to get ready Well, by the time deer season began, were those issues But it certainly wasn't by the end of the deer season, you Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 35 of 41779 1 January, correct? 2 A It wasn't what? 3 Q Well, it wasn't something that you still hadn't made the 4 arrangements or y'all were still discussing blinds, discussing 5 corn, discussing rifles or whatever? 6 A No, it wasn't. 7 Q Sir, I'm going to show you what has been previously admitted 8 as Government Exhibit No. 15. 9 screen? Do you see that there on your 10 A Yes. 11 Q And this is the ATF Form 4473, correct? 12 A Yes. 13 Q And this is, in fact, the form you filled out back on 14 December the 5th of 2011, correct? 15 A Yes. 16 Q And, as a matter of fact, this signature that we see here on 17 the second page under Section 16 is your signature, correct? 18 A Yes. 19 Q And it is for the Remington rifle that appears listed here 20 on page -- on top of page 3 under 26, 27, 28, 29 and 30, 21 correct? 22 A Yes. 23 Q You are the -- going back to page 1, you are the individual 24 that filled out the information contained in this entire 25 exhibit, correct? Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 36 of 41780 1 A Yes. 2 Q The ones in your writing? 3 A What's that? 4 Q In other words, I'm -- certainly you didn't put the 5 signatures of the -- of the personnel from Academy as reflected 6 on page 3, correct? 7 A That's correct. 8 Q And you fill it up up to the point right here? 9 A I believe so. 10 Q As reflected on page 2? 11 filled out the information here on this entire page, correct? 12 A Yes. 13 Q So when we see here under 11A where the form asks you, "Are 14 you the actual transferee/buyer of the firearm listed in this 15 form," and then it goes on to saying -- saying, "Warning: 16 are not the actual buyer if you are acquiring the firearm on 17 behalf of another person." 18 buyer, the dealer cannot transfer the firearm to you." 19 it directs you to other sections. 20 Let me go back to page 1. You You And then, "If you are not the actual And then You -- you understood that question; is that correct? 21 A Yes. 22 Q And you are the one who then, after reading that question, 23 marked "yes," correct? 24 A That is correct. 25 Q And you, in fact, made that purchase, correct? Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 37 of 41781 1 A Yes. 2 Q And as a result of making that purchase, you received this 3 receipt, which I show you right now marked as Government 4 Exhibit No. 12? 5 A Yes. 6 Q Let me zoom it up so you can see it better in case you 7 can't. 8 A Yes. 9 Q And that was for that rifle, correct? 10 A If you say so. 11 Q Well, does this receipt not match the serial number and 12 description not match what you have indicated over here on the 13 previous exhibit? 14 A There you go. 15 Q I'll give you a chance to look through both serial numbers. 16 A Yes, that's it. 17 Q And you agree with me that according to this receipt, you, 18 in fact, did pay -- did pay cash? 19 A Yes. 20 Q And, in fact, received some change? 21 A Yes. 22 Q I'm going to show you No. 20, Government Exhibit No. 20. 23 you see that, sir? 24 A Yes. 25 Q That is the ATF Form 4473 that you signed for the purchase Can you see it? Do Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 38 of 41782 1 made on December the 19th of 2011; is that correct? 2 A Yes. 3 Q The signature that appears here under the block or the 4 Section No. 16 is your signature; is that correct? 5 A Yes. 6 Q And once again, this is for the purchase of that Remington 7 770 with this serial number indicated at the top of page 3, 8 correct? 9 A Yes. 10 Q After making that -- let me go back to page 1. 11 So the information that is here concerning the purchaser is 12 the information you filled out? 13 A Yes. 14 Q On page 1, the upper portion here is information you put in 15 here, correct? 16 A Yes. 17 Q On Section 11A, you see that question? 18 your screen? 19 A Yes. 20 Q Where it asks, "Are you the actual transferee/buyer of the 21 firearm listed on this form," and then a warning. 22 not the actual buyer, if you are acquiring the firearm on behalf 23 of another person, or if you are -- if you are not the actual 24 buyer, the dealer cannot transfer the firearm to you." 25 Do you see that, sir? You see it there on "If you are Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 39 of 41783 1 A Yes, I do. 2 Q You read that question? 3 A I read it, understood it, and signed it because I am the 4 actual buyer, sir. 5 Q 6 you checked that yes, you are the purchaser, correct? 7 A Yes. 8 Q After buying that weapon, you did, in fact, receive a 9 receipt, correct? So when you say you signed it, what you're saying is that 10 A Yes. 11 Q In fact, I'm going to show you number -- Exhibit No. 19. 12 you see that there on your screen? 13 A Yes. 14 Q That is for the purchase of the weapon reflected in 15 Government Exhibit No. 20, the one we've been talking about with 16 the same serial number, correct? 17 A I can't see the serial number, sir. 18 Q Oh, I'm sorry. 19 here, M71716198? 20 A Yes. 21 Q And then you see that same number down here on the ATF form? 22 A Yes. 23 Q So this receipt is for that Remington weapon you purchased, 24 correct? 25 A Yes. Do See the serial number on the receipt up Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 40 of 41784 1 Q And in looking at this receipt, Government Exhibit No. 19, 2 we see that was the purchase you made on December the 19th, 3 correct? 4 A Yes. 5 Q And that you paid cash for that weapon, correct? 6 A And the M&M peanuts also, sir. 7 Q Yes. 8 A For which items? 9 Q For the weapon and the M&M peanuts? 10 A Yes. 11 Q And, of course, this receipt also reflects that it was cash 12 tendered in the amount of $400, correct? 13 A Yes. 14 Q Now, Sergio Gonzalez gave you those $400. 15 A He collected from my brothers, yes. 16 Q Okay. 17 A I'm not exactly sure, but I know one was at the party. 18 he called my other brother Jorge. 19 ended up with the money at the end. 20 Q 21 mentioned, $60 or so from each person? 22 A Yes, I believe so. 23 Q Did you say that? 24 A Did I say that? 25 Q I'm asking, did you say that, or is that what you believe? You paid cash for those items? Isn't that true? He collected all at one time, if you know? And He met him somewhere, so he And you said that he collected, according to what you Case 1:12-cr-00472 Document 106-3 Filed in TXSD on 01/22/13 Page 41 of 41785 1 A I don't remember if I said it, but that was the arrangement. 2 Q The arrangement is $60 from each person? 3 A Yes. 4 Q And I believe you heard the testimony of at least two of 5 your brothers that they did pay those 60 to Sergio, correct? 6 A Yes. 7 Q But none of these bills here are in denominations of, let's 8 say, 20 and -- three 20s or a fifty and a ten or six tens or 9 whatever. Would you agree with me? 10 A Yes. 11 Q Now, sir, prior to this trial -- trial, as part of the 12 discovery process, you had an opportunity to listen to -- to the 13 recordings that were -- that were available, correct? 14 A Yes. 15 Q And -- and in those recordings, you agree with me that -- 16 that essentially it is you and Sergio engaged in conversation? 17 A Which recording, sir? 18 Q The recordings that you heard as part of this case. 19 A There was some agents in there too. 20 Q And I said for the most part; is that correct? 21 A Yes. 22 Q And the agents, when you hear their voices, it's at the 23 introduction of the recording or perhaps at the very end as it 24 closes out? 25 A There were some where there was people around, the clerk, Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 1 of 41 786 1 maybe my son when I went to the Academy with my son. 2 came out too. 3 Q 4 individuals engaged in conversation would have been you 5 essentially or Sergio, correct? 6 A Yes. 7 Q And let me -- Just as an additional person speaking. His voice But the main 8 MR. PONCE: May I approach the witness, Your Honor? 9 THE COURT: Yes. 10 BY MR. PONCE: 11 Q 12 record right now, we'll just call this 24A. 13 this and just read here just real quick the few lines there and 14 ask you if -- if that refreshes your memory. 15 A Yes. 16 Q You had a -- you had a conversation with Sergio prior to 17 going to the Academy, correct? 18 A When? 19 Q Prior to going into the Academy and making that purchase, 20 correct? 21 A Let ask you, sir, if -- and just for the purposes of the Ask you to look at I don't remember. 22 MR. PONCE: May I approach the witness again, Your 24 THE COURT: Yes. 25 THE WITNESS: 23 Honor? Believe me, the note you're -- Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 2 of 41 787 1 BY MR. PONCE: 2 Q 3 record, the same Exhibit 24A and ask you if that helps you 4 remember that right before you went to the Academy, that you 5 called Sergio and talked to him just very, very briefly. 6 A 7 because his name is first? 8 Q 9 just moments before going to Academy, correct? I'm going to show you the same -- for purposes of the If this is the way I'm reading it, then he called me, right, Okay. Well, there's a conversation that you had with him 10 A Yes. 11 Q And you've heard that tape? 12 A I believe so. 13 Q Okay. 14 conversation? 15 A Yes. 16 Q And in that conversation, you, in fact, identify the -- the 17 individuals as part of that as being you and Sergio engaged in 18 that very short conversation, correct? 19 A 20 21 This refreshes your memory, correct, about that Yes. MR. PONCE: Your Honor, at this time I would move to admit or -- and/or play 24, 24A. 22 THE COURT: 23 All right. It's been admitted. (Tape playing.) 24 BY MR. PONCE: 25 Q Can we go back to the regular screen? Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 3 of 41 788 1 So you had an opportunity to refresh your memory and now 2 hear that conversation, correct? 3 A Yes. 4 Q Now, in that recording, you do tell Sergio that this -- that 5 you are in the downtown area, and you say something, and that 6 you're with Boy; is that correct? 7 A Yes. 8 Q And this is the morning of -- like about 10:42 or so, the 9 morning of December the 19th, correct? I was shopping downtown with my son. 10 A Yes. 11 Q And you understood Sergio to tell you that he was at 12 Wal-Mart, and he's asking you what time you-all can meet, 13 correct? 14 A 15 my brother's money to me to purchase the rifle. He asked me (Speaking Spanish). 16 THE INTERPRETER: 17 THE WITNESS: I'm assuming turning over "About that." That was my understanding. 18 BY MR. PONCE: 19 Q 20 I don't know at what time -- at what time can we see each other? 21 At what time can we go do that?" 22 A He says to you, "I'm going to Wal-Mart now, brother-in-law. In Spanish. It says (Speaking Spanish). 23 THE INTERPRETER: 24 THE WITNESS: 25 talked to -- That's what he says, correct? "About that." And that refers to the money that we had Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 4 of 41 789 1 BY MR. PONCE: 2 Q 3 going to Wal-Mart, correct? 4 A I understood him, "I'm at Wal-Mart." 5 Q Okay. 6 A Yes. 7 Q And he also mentions, well, or asks, "At what time, what 8 time can we see each other," or words to that effect? 9 A Yes. 10 Q And, "What time can we do that?" 11 actual -- the purchase of the weapon, correct? 12 A Giving me the money. 13 Q Well, the purchase of the weapon, because you're going to go 14 to Academy in the next few minutes to purchase that weapon, 15 aren't you? 16 A But Sergio is not going to purchase it, or is he? 17 Q I'm asking you, sir, if the substance of this conversation 18 is that when he says, "At what time can we do that," the "that" 19 he's referring to is the purchase of the weapon, whether it's 20 you, Sergio or whomever? 21 A No. 22 Q It does not refer to the purchase of the weapon? 23 A No, sir, it does not. 24 Q Okay. 25 call," correct? Let me ask you. Well, he's, one, telling you that he's They mention Wal-Mart, correct? The "that" is referring to You do say that, "When you go over there, give me a Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 5 of 41 790 1 A Yes. 2 Q And he'll tell you that he'll be over there in ten, 15 3 minutes or so, correct? 4 A Yes. 5 Q And ultimately, well, that that's the way they'll do it. 6 That you-all will do it upon, you know, his arrival, correct? 7 A Do what? 8 Q Well, whatever he may have said. 9 meant. Whatever he may have 10 A Then I don't understand that. 11 Q Well, are you denying that he doesn't say words to this 12 effect: 13 it, ten, 15 minutes upon arrival? 14 15 That when he gets there, then that's the way we'll do MR. GAMEZ: answered. 16 Your Honor, the question has been asked and He said he did not understand it. THE COURT: Sustained. 17 BY MR. PONCE: 18 Q 19 as -- on this Government Exhibit No. 24A that are here, what do 20 you understand these words to be when we see here that says, 21 "Then that's the way we'll do it in ten, 15 minutes upon 22 arrival"? 23 A Can I see the Spanish part of it? 24 Q Would you like to hear the recording again, sir? 25 A No. When -- when you hear these words that I'm pointing to here Can you -- it says: "Okay, brother-in-law." I'm Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 6 of 41 791 1 giving you my interpretation. 2 the way we'll be there. 3 Q 4 what it is. 5 to be? 6 A Bye. 7 Q Buy of the weapon because you're going to be meeting at 8 Academy? 9 A Okay. "Okay, brother-in-law. That's Ten, 15, I'll see you there." You've essentially given us your interpretation of What I'm asking you is, what do you understand that No, good-bye. When you terminate a phone call, okay, 10 good-bye. That's another way of saying good-bye. 11 Q 12 arrival," that to you means good-bye? 13 A That is your translation of it. 14 Q What is your translation of it? 15 A "Good-bye." 16 Q Those words that he says here in Spanish means good-bye? 17 A The conversation was over. What, "That way we'll do it in ten, 15 minutes upon 18 THE INTERPRETER: 19 THE DEFENDANT: 20 THE COURT: 21 22 23 24 25 He says (Spanish spoken.) "Okay, cuñado." That to me meant good-bye. Excuse me. You have to allow the interpreter to translate. THE INTERPRETER: "Okay, cuñado. That's what we've agreed upon." MR. PONCE: Move to admit 24, 24A, Your Honor. remember if they were in. I don't I believe the Court said they were, Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 7 of 41 792 1 but I didn't have it marked on my sheet. 2 THE COURT: Well, that was -- I thought I had admitted 3 24 and 25A yesterday, but we actually have a question about 4 that. 24A and B. 5 MR. PONCE: Well, I'm just for the record moving to 6 admit it based on his testimony regarding that in case it 7 wasn't. 8 9 THE COURT: Well, let me -- we're going to check our -- to be sure, Stella. 10 MR. PONCE: Yes, Your Honor. 11 THE COURT: I'm asking the case manager, do your records 12 13 14 show any offer? Okay. Apparently neither 24 nor 25 were admitted or offered. 15 MR. PONCE: Well, I'll offer and admit based on his 16 testimony, having reviewed those exhibits before him, Your 17 Honor. 18 THE COURT: Mr. Gamez? 19 MR. GAMEZ: He's offering 24 and 25? 20 THE COURT: Yes. 21 MR. PONCE: 24, 24A at this point, but I will be moving 22 on to 25. 23 MR. GAMEZ: I believe you entered 24, Judge, right? 24 THE COURT: Well, apparently it was not offered. 25 MR. GAMEZ: Your Honor, is 25 -- my objection is I Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 8 of 41 793 1 believe them to be inaudible. 2 said inaudible, and I didn't -- 3 I believe the Court at one time THE COURT: I tell you what. 5 MR. GAMEZ: I thought it was 24A and 25. 6 THE COURT: 24 and 24A. 7 MR. GAMEZ: I don't have a 24, Judge. 4 8 I'm talking about 24 and 24A. I have a 24A, then it jumps to 25A. 9 MR. PONCE: May I approach, Your Honor? 10 THE COURT: Yes, 24 would be the CD; 24A, the 11 transcript. 12 MR. GAMEZ: No objections, Judge. 13 THE COURT: Admitted. 14 BY MR. PONCE: 15 Q 16 morning hours, right before the noon hour; is that correct? 17 A The 19th? 18 Q On the 19th? 19 A I don't remember. 20 Q I'm sorry? 21 A I'm not exactly sure what time it was. 22 Q But you know it was the 19th? 23 A Yes. 24 Q And if we -- if we go back to Government Exhibit No. 19, the 25 one that relates to the purchase of December the 19th, we can Sir, you made that purchase on the 19th sometime late in the I believe so. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 9 of 41 794 1 see here the time as 11:29 when that receipt is generated. Do 2 you see that? 3 A Yes. 4 Q That would be the morning, not 11:29 at night, correct? 5 A I believe so. 6 Q During the time that you made the purchase, of course, 7 Sergio is there on occasion; is that correct? 8 A Most of the time, and my son. 9 Q Sergio is there with you at the counter for a while, but he 10 comes and goes during the purchase; is that correct? 11 A 12 the whole time. 13 Q 14 takes to conduct this transaction. 15 us? 16 A I don't remember, sir. 17 Q Was your son there the entire time that you're there at the 18 counter, or is he going off to check out fishing rods or, you 19 know, something else? 20 A He was with Sergio sometimes, sometimes with me. 21 Q I'm sorry? 22 A He was with Sergio on and off. 23 fishing and then they're looking at fishing poles. 24 remember exactly what they were doing, but we were together. 25 Q Me, my son and Sergio, and we're talking about guns, hunting Sergio is standing next to you the entire hour or so it Is that what you're telling It was on and off. They were talking about I don't Well, but if you say that your son is with Sergio, then he Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 10 of 41795 1 is with Sergio at some other place? 2 understanding? 3 A And with me. 4 Q And at times with you? 5 A Yes. 6 Q Okay. 7 there with you, you certainly have a chance to talk to him a 8 little bit, engage him in a little bit of conversation, correct? 9 A I guess. 10 Q Well, do you not talk to him the entire hour or so that it 11 takes to make this -- to complete this transaction if he happens 12 to be standing next to you? 13 A 14 and that is incorrect. 15 Q 16 entire hour. 17 talk to him because he happened to be next to you. 18 19 And at least during the times that -- that Sergio is Well, you just said did you not talk to him the entire hour, Let me clarify. I'm not asking you if you talked to him the If during that hour there were times that you did MR. GAMEZ: I'm going to object, Your Honor. He's arguing with the witness. 20 THE COURT: 21 THE WITNESS: 22 BY MR. PONCE: 23 Q 24 entire hour. 25 At least that's your Overruled. I did not talk to him the entire hour. Sir, I'm not talking about whether you talked to him the That's -- let me clarify my question. Let's say, for example, that this purchase took from Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 11 of 41796 1 11:00 a.m. to, let's say, 12:00 noon, one hour, okay? 2 A Okay. 3 Q During that time, you've indicated that Sergio was with you 4 sometime during the -- during that hour, correct? 5 A Yes. 6 Q And during the times that he was with you during that hour, 7 he engaged you in conversation or you engaged him in 8 conversation; isn't that correct? 9 A Yes. 10 Q And, of course, the -- you've testified before or earlier 11 that, well, some of that conversation dealt with the -- you 12 know, the purchase of the -- the rifle you were about to -- to 13 complete, correct? 14 A I don't remember. 15 Q So you were there about to purchase this rifle for the 16 ranch, and you don't remember if you engaged in conversation -- 17 you and he engaged in conversation regarding the purchase of the 18 rifle? 19 A You're not telling me which conversation. 20 Q Well, let me see if I can refresh your memory, sir. 21 MR. PONCE: May I approach the witness, Your Honor? 22 THE COURT: Are you going to show him an exhibit that 23 24 25 has already been offered and admitted? MR. PONCE: No, Your Honor. I want to show him something that might refresh his memory, and I'll ask him if Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 12 of 41797 1 something like this does refresh his memory. 2 THE COURT: I won't allow it if it's not admitted. 3 BY MR. PONCE: 4 Q 5 time that -- that you were there with him? 6 you were there the entire hour with him, where you, in fact -- 7 where he, in fact, tells you that -- that he wants the same kind 8 of weapon so there won't be any -- any problem with one son and 9 the other son perhaps being jealous of having different rifles? Did you -- do you remember the -- talking to him during the And I'm not saying 10 A I don't recall that, sir. 11 Q You don't recall, okay. 12 anything about, well, that he wanted that -- the rifle that was 13 going to be in the neighborhood of -- well, the price like 299, 14 thereabouts? 15 A 16 buy the low end Remington 270, which is a $299 rifle. 17 Q 18 that he wanted the same one so there wouldn't be any kind of 19 issue with one son and the other? 20 A 21 discussed which one we wanted and overruled him on the 243 22 caliber. 23 Q 24 Isn't it true that he actually did suggest that, say that? 25 A No. Okay. Do you recall him telling you We discussed the price together, and we had agreed to But isn't it true that he told you that it was -- He could have suggested, but I -- we had already met and Okay. When? You say -- you say that he could have suggested. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 13 of 41798 1 Q Either when you were making the purchase or even before 2 that? 3 A 4 everybody that was going to buy that rifle. 5 decision to make. 6 Q 7 point in time, he does ask you if -- if you want the money right 8 there, meaning where you're at or perhaps some other location, 9 correct? He suggested it, but the decision -- it had to be between It was not his When -- when you are there to purchase this weapon, at some 10 A What money? 11 Q The money for the purchase of the rifle. 12 A Which rifle? 13 Q Talking about the second rifle. 14 on the 19th, that rifle. 15 A 16 that's the money we were talking about. 17 Q 18 that on the 19th you got some money from Sergio for the purchase 19 of that rifle, correct? 20 A 21 Rafael, and from Sergio. 22 Q 23 on the 19th? 24 A 25 We're talking about the one The money for the rifle that he collected from my brothers, Well, the money. I'm talking -- so you do admit that -- Not from Sergio, from my brother Rolando, from Jorge, from Sir, who physically gave you that money to buy that weapon But whose money was it? THE COURT: Sir, you don't get to ask questions. You Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 14 of 41799 1 have to answer the question. 2 THE WITNESS: The money that he collected from my 3 brothers was handed over to me by Sergio Gonzalez. 4 BY MR. PONCE: 5 Q So the answer to that question is yes? 6 A I already answered your question. 7 Q So the answer to that question is yes? 8 A Which question? 9 Q Who physically gave you the money to make the weapon 10 purchase on the 19th? 11 A If you -- 12 13 MR. GAMEZ: Objection, Your Honor. Question has been asked and answered, and counsel is arguing with the witness. 14 THE COURT: 15 answer the question. 16 THE WITNESS: Overruled. The witness is instructed to The money that he collected, that Sergio 17 Gonzalez collected from my brothers for the purchase of that 18 rifle by me was handed over to me by Sergio Gonzalez. 19 BY MR. PONCE: 20 Q So the answer is yes; is that correct? 21 A To what question? 22 Q To the question -- let me ask the question so that we can be 23 clear. 24 that rifle on the 19th; is that correct? 25 A Sergio Gonzalez physically gave you the cash to purchase I believe so. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 15 of 41800 1 Q He gave you that money when you were inside already there at 2 the Academy, correct? 3 A 4 remember. 5 Q 6 store when he -- when he arrived? 7 A I don't remember saying that. 8 Q Let me ask you that. 9 store at Academy when -- when Sergio arrived? I don't remember if it was inside or outside. I don't Well, was it your testimony that you were already in the Isn't it true you were already in the 10 A I don't remember. 11 Q Isn't it true that when you are in the process of making 12 that -- that purchase of the 19th, we're still talking about the 13 19th -- that you -- that you specifically asked -- you 14 specifically ask Sergio if -- if he wants the 270, in other 15 words, the 270 caliber rifle? 16 A If he wants? 17 Q Yes, sir. 18 A If he wants to buy it? 19 Q If he -- if he wants the 270 or if he wants the 243? 20 A No, I didn't say that. 21 Q You never said that? 22 A I don't remember saying that. 23 Q If you listen to a recording, will that help refresh your 24 memory? 25 A Maybe. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 16 of 41801 1 Q Doesn't he at that time also tell you that he wanted -- he 2 wanted it to be the same kind, meaning the 270, because that's 3 what you-all had gotten for his -- for his son earlier, the 4 earlier purchase? 5 A For his son? 6 Q Yes, sir. 7 A No. 8 Q He didn't say that? 9 for his -- if you're agreeing whether he's getting it for his Is that what you said? I'm not asking if he's getting it to -- 10 son. I'm asking is -- what I'm asking is did he say that to 11 you? 12 A 13 Sergio Gonzalez about this rifle, and I'm saying yes. 14 way he twists his words, because he's a government informant 15 paid to do this, and that's -- You're asking me if a conversation took place between me and 16 THE COURT: All right. 17 recess. 18 about the facts of this case. 19 20 21 Then the Members of the jury, you are in You are instructed to not form or express any opinion (Jury leaves courtroom) THE COURT: Please be seated. Mr. Pena, do you wish to spend the weekend in jail? 22 THE WITNESS: 23 THE COURT: No, ma'am, I don't. What is the reason that as a law enforcement 24 officer that you would disclose in testimony even the allegation 25 that someone is a confidential informant? Tell me, what was Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 17 of 41802 1 your rationale as a law enforcement, not as it relates to you as 2 a defendant and this man as a witness against you, as a law 3 enforcement officer? 4 THE WITNESS: 5 It was my understanding that if that was discussed in court, then it could be used in court. 6 THE COURT: It has not been discussed in court that he's 7 a confidential informant. What is the reason that you as a law 8 enforcement officer would think that it would be appropriate to 9 have someone who might be a confidential informant discussed in 10 a public hearing to be identified and thereafter be a security 11 risk? 12 What is your rationale? THE WITNESS: My rationale was simply that I heard the 13 conversation between the U.S. attorney and my attorney about him 14 being a confidential informant. 15 about a conversation that took place between me and him, and 16 this is my life on the line. 17 THE COURT: They're asking me questions So you're saying that you -- you're not 18 answering my question, first of all. 19 first of all, not being responsive, which is what you've 20 continuously done, you have done something that is contrary to 21 the order that I gave to the attorneys that they are not to go 22 into that matter. 23 But the fact is that by -- You have violated my order. So are you saying that because you're the one who, in your 24 opinion, is -- or under clearly -- your life is on the line, 25 that it's okay for you to violate a court order? Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 18 of 41803 1 2 THE WITNESS: tell you. 3 THE COURT: 4 THE WITNESS: 5 THE COURT: 6 THE WITNESS: 7 8 9 10 11 12 So the answer is yes or no. If I can explain? The answer is yes or no. You're asking me yes, my reason, is it okay for me to disclose? THE COURT: Yes. You're saying that it's okay to disclose the identity of someone who might be a confidential informant? THE WITNESS: It was already disclosed in court. I believe it was. 13 THE COURT: 14 THE WITNESS: 15 THE COURT: 16 If you understand my reasoning, if I can It was not. That was my belief, and -Okay. I'm just going to recess. I have to -- I think it's better if you have a seat with your attorney. 17 MR. GAMEZ: My apologies, Judge, on behalf of my client. 18 THE COURT: Actually what I need is to have the court 19 reporter pull up the record regarding the hearing that was held 20 with only the court reporter, the attorneys for the government 21 and Mr. Gamez. 22 courtroom to be cleared. 23 And I'll ask the entire -- the rest of the (Recess taken from 2:31 to 3:00.) 24 THE COURT: Ready? 25 THE DEFENDANT: Go ahead. I'm sorry for making that statement. It Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 19 of 41804 1 was my understanding -- what I meant was that he's an informant 2 on my case against me, and he's working against me, directly me. 3 I wasn't -- I'm still not aware that he's going to be a threat 4 to anybody because I'm not going to do any harm. 5 was he's working against me to get me to whatever. 6 sorry for making that statement. 7 going to cause the Court any -- I mean so much trouble. 8 THE COURT: 9 My intention But I'm I didn't know it was -- it was Please bring in the jury. And just so that the record is clear, the last sentence of 10 the defendant's testimony was: 11 words because he's a government informant paid to do this," is 12 the language that I had concern about. 13 "Then the way he twists his (Jury enters courtroom) 14 THE COURT: Thank you. Please be seated. You may 15 continue. 16 BY MR. PONCE: 17 Q Sir, just your name for the record again? 18 A Manuel Eduardo Pena. 19 Q Sir, when we left off, I was asking you about the purchase 20 while you were at Academy. 21 A Yes. 22 Q And whether sometime during that hour, you had -- in fact, 23 at least at different points in time had conversations with 24 Sergio. 25 A Do you remember that? Do you remember that? Yes, I do. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 20 of 41805 1 Q 2 conversations with Sergio, correct? 3 A That is correct. 4 Q Okay. 5 conversations with Sergio; is that correct? 6 A Yes. 7 Q And that in the recordings, you did, in fact, identify 8 the -- the principal speakers as you and Sergio, correct? 9 A Yes. 10 Q And, of course, as part of that, you looked at some of the 11 transcripts that were prepared as part of the -- those 12 recordings? 13 A Are you asking me if I want to look at them? 14 Q No. 15 looked at them, reviewed them, right? 16 A 17 18 Your answer was that yes, you did have at least some You did say that you had heard the recordings of your No. Did you have looked -- that you had, in fact, Yes. MR. PONCE: Your Honor, because we have not previously done so, I believe at this time we would move for 25 and 25A. 19 THE COURT: Mr. Gamez? 20 MR. GAMEZ: No objections, Judge. 21 THE COURT: Admitted. 22 BY MR. PONCE: 23 Q 24 conversation while you were at Academy. 25 Will you do that, please? Sir, I'm going to play different excerpts of those -- that I'll ask you to listen. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 21 of 41806 1 A 2 Yes. (Tape playing.) 3 BY MR. PONCE: 4 Q 5 moved off the screen. 6 7 8 Can we play that again? THE COURT: Because the transcript portion was And, actually, Mr. Ponce, you're referring to right now -- refer to the markers. MR. PONCE: Oh, I'm sorry. This first portion for 9 purposes of the record is the excerpted conversation between -- 10 at 3:57 mark to the 4:34 mark, meaning three minutes 57 seconds 11 into the conversation and ending four minutes 34 seconds into 12 the conversation. 13 particular transcript. 14 15 The markers are reflected at the top of that (Tape playing.) MR. PONCE: Before playing the second part, still of 16 this exhibit, the second portion, part two of the -- of this 17 conversation is at marker 5:02, five minutes two seconds into 18 the conversation, ending at 5:09. 19 20 (Tape playing.) MR. PONCE: The next portion, part three, the marker 21 indicating 17 -- at 17 minutes to 17 minutes 40 seconds 22 indicated at the top of that particular section. 23 24 25 (Tape playing.) MR. PONCE: The last portion, portion four, I believe, the marker at the top is the conversation occurring at 18 Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 22 of 41807 1 minutes and ending at 18 minutes and 45 seconds. 2 (Tape playing.) 3 MR. PONCE: This is the last part occurring at marker 53 4 minutes, 30 seconds, ending at 54 minutes, 15 seconds. 5 part five. 6 That's (Tape playing.) 7 MR. PONCE: 8 BY MR. PONCE: 9 Q Can we go back to the regular screen? Sir, I'm going to show you 25A, part 1. Do you see that? 10 don't know if you have it on your screen. 11 A Yes, I do. 12 Q Once again here, the primary speakers in this conversation 13 are you and Sergio Gonzalez; is that correct? 14 A Yes. 15 Q And these are excerpts of -- of the time that you were at 16 the Academy making the purchase of the gun; is that correct? 17 A Yes. 18 Q And you've had an opportunity, prior to this trial 19 certainly, to see the -- or hear the trans -- the different 20 recordings and the -- perhaps and review the transcripts; is 21 that correct? 22 A Yes. 23 Q You do admit that -- that during the time that you were 24 there with Sergio at least, that there was discussion regarding 25 the purchase of the weapon, correct? I Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 23 of 41808 1 A Yes. 2 Q And in this particular part, this first part -- and by the 3 first part, I'll call it the part -- part one, the 357 mark, 4 okay? 5 see if they have it in the 243; and if not the same, the 270, 6 correct? 7 A 8 243; and again, I stood my position to get the 270. 9 Q Because it's got a 57 up here. He asks you that -- to We discussed -- again, he offered or he suggested we get a I know. But what I'm asking you, sir, is if at this point 10 in time at this moment, he is making reference to you about that 11 if not the 243, then the same one, meaning the 270, correct? 12 A 13 is different. 14 like we talked, and that's what we did. 15 Q 16 clear. 17 something else or whatever. 18 moment in time when you're at Academy, he's telling you that 19 they don't have it in 243, then the not -- then the same, the 20 270, the same one. 21 A 22 no. 23 Q You weren't -- you didn't hear him when he said that? 24 A I was there. 25 interpretation is different than mine maybe, but I'm saying if Again, the suggestion on his part. But the 243? And I said: But that is not my question. Maybe your translation We'll just get the 270 Let me just try and make it I'm not asking you if you eventually talked him into My question is at this precise And so there won't be any -- correct? You're asking me if that is what I understood he said, then I'm discussing the 243 and the 270. Your Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 24 of 41809 1 you think that I understood that, then no. 2 Q 3 just read to you, isn't that what Sergio said? 4 about your interpretation. 5 said. 6 A No. 7 Q Okay. 8 A You're -- 9 Q Then when there's a reference here to 299, 299, that's a Then let me ask you this. Isn't that, that meaning, what I I'm not asking I'm asking you if that's what Sergio 10 reference to the cost or the price of the weapon; is that 11 correct? 12 A 13 No, we'll get the 270. Yes. When he saw -- he said: 14 Yes. 15 We're agreeing. And I said: But you don't say it. What about the 432? I said: The 299 one or what? 16 Q You ask it in the form of a question, 17 do you not? 18 true? 19 A No. 20 Q Okay. 21 purchase price of the weapon? 22 A Of the 270 rifle that I bought, yes. 23 Q Then you point out that that one there -- and I don't know 24 if you point out physically, is a 270. 25 rifle, correct? The 291 -- "The 299 ones or what?" Isn't that But you do agree with me that the 299 refers to the That references to 270 Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 25 of 41810 1 A The one I wanted. 2 Q And you agree with me that he says: 3 same one, the same one -- in other words, the same one in 270. 4 In other words, the 270 caliber, correct? 5 A 6 ranch on December 6th, I believe. 7 Q 8 That, well, he's the one that's saying the "same one in 270"? 9 A 10 This one here. Well -- well, no, the Yes, and he's referring to the 270 that we bought for the And would you agree with me that that's what he is saying? Again, he is part of this rifle because he pitched in, so we are concurring or conferring, if you will, for this rifle here. 11 12 I said: MR. PONCE: Your Honor, I ask that the Court instruct the witness to be responsive. 13 THE COURT: The witness is so instructed. 14 BY MR. PONCE: 15 Q 16 The same one in 270, correct? 17 A As the one -- yes, as the one before. 18 Q Later on down here, the clerk is the one saying something, 19 "Oh, sir, which one? 20 A Yes. 21 Q In other words, that's not you or that's not Sergio? 22 A It doesn't sound like us, no. 23 Q Okay. 24 the other one over here," correct? 25 A Sergio does say in this conversation you're having with him: I'm sorry." Correct? But it is you saying, "The two combo for 299. Yes, I'm picking the rifle I want. No, Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 26 of 41811 1 Q When you say 299 there, you are talking about $299, correct? 2 A I believe so. 3 Q And when you say the two combo, what is that? 4 A I don't know what -- how that came out. 5 Q Combo. 6 scope, in other words? 7 A Yes. 8 Q Okay. 9 you, I believe it's part 2 -- well, let me tell you, it's at the I don't know. Well, did the rifle have a scope, combination with The next part of this exhibit that I'm going to show 10 502 mark. Female is at some point asking you, the unidentified 11 female asking you if the 270, and you respond, yes, the two -- 12 well, "The 270," correct? 13 A Yes. 14 Q And that's the one you're going to take? 15 A Yes. 16 Q At the 17 minute mark, and I believe this is part 3, you 17 tell Sergio that, "That one is the Mossberg," correct? 18 A Yes. 19 Q And then something to the effect that isn't -- or that isn't 20 a 243, correct? 21 A 22 getting the 243. 23 Q 24 earlier, correct? 25 A If I remember correctly, I'm making sure that we're not And the 243 is a 243 caliber that you made reference to Yes. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 27 of 41812 1 Q Well, he questions about -- when you say 243, then he makes 2 that question, "243?" 3 correct? 4 A I don't understand your question. 5 Q Well, the very next thing that he replies, once you mention 6 243, is he with the question, "243?" 7 Or is that your -- 8 A 9 the tone of voice, so I'm not going to testify that it is a Correct? That's Sergio speaking, Is that not what he says? Your interpretation here of the question is just based on 10 question. 11 voice, not on any actual other evidence that you may have, I 12 guess. 13 Q 14 me what Sergio says, whether in the form of a question or in the 15 form of a statement, that the words are "243"? 16 A 17 if you -- Okay. It is not, because you are basing it on the tone of Well, let's just say then, do you at least agree with In the first part, I say, if I'm reading it correctly, and 18 THE COURT: 19 THE WITNESS: 20 THE COURT: 21 Answer yes or no. Okay. That says -- The question is do you agree with me that those are the words, yes or no. 22 THE WITNESS: Yes, I agree with you. 23 BY MR. PONCE: 24 Q 25 now, do you agree then that at least whether Sergio is making a Well, you heard this recording quite a few times. And even Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 28 of 41813 1 statement or asking a question at that point in time, that the 2 next words that you utter were, "Or did you want -- or did you 3 want 270?" 4 A No, I don't agree with you. 5 Q You don't agree that those were the next words that you 6 uttered? 7 A No, I do not. 8 Q What were the next words that you uttered? 9 A You want to play the tape so I can hear it? 10 Q You want us to play that portion again? 11 ask you this. 12 whatever words you uttered at that point, that those words were 13 in the form of a question? 14 A 15 unless you hear it? 16 Q 17 Can we just play the first part of it? 18 Let me -- let me Well, do you -- do you agree with me that I don't know. If I hear it. I mean, how can I base it This is, I believe, part -- what we will call part 3. Yes. (Tape playing.) 19 MR. PONCE: Can we stop it there? If can we go back to 20 the regular screen? 21 BY MR. PONCE: 22 Q 23 "243" were uttered by -- by Sergio? 24 A 25 what I said, but I never said, "Do you want a 270?" What is it that -- that you say you said after the words I do not say that that is written down. I didn't understand Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 29 of 41814 1 Q Okay. 2 that you didn't say that. 3 4 You don't understand what you said, but yet you know MR. GAMEZ: Is that what you're telling us? Objection, Your Honor. That's being argumentative. 5 THE COURT: 6 THE WITNESS: 7 said. 8 BY MR. PONCE: 9 Q I'll allow it. I'm telling you I don't understand what I But you're also saying that even though you don't understand 10 what you said, you are saying that you didn't say that? 11 A 12 voice, and I'm the one speaking it. 13 Q 14 You did hear Sergio say that -- that he wants the same kind 15 because you know we bought a 270 for that guy. 16 later heard him say that he's going to want it the same. 17 heard those words being uttered, correct? 18 A Yes. 19 Q Okay. 20 A Yes. 21 Q So you heard him say in Spanish (Speaking Spanish)? 22 I couldn't even understand -- I couldn't even make out my Okay. Well, then, let me go on. Let me ask you this then. And then you And, of course, you know Spanish, correct? THE INTERPRETER: 23 BY MR. PONCE: 24 Q Is that correct? 25 A From the video? "I want it the same because." You Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 30 of 41815 1 Q From the audio that we -- 2 A From the audio? 3 Q I'm not asking you if that's what you meant. 4 if you -- do you agree with me that that's what you just heard? 5 A 6 not what I meant. 7 Q 8 being uttered by Sergio, not you. That's not -- that's not what we meant. I'm asking you What I meant is important here, and I'm telling you that's Sir, if you look at this transcript here, those words are 9 MR. GAMEZ: Your Honor, I object, Your Honor, to that. 10 It's purported that that's what they interpret the words are, 11 Judge. 12 he says. 13 That's the government's interpretation to that, not what It's purported to say, Judge. THE COURT: The jury has heard the tape. And unless 14 there is someone who disputes the translation, which you have 15 the right to do, that's what the evidence is before the jury. 16 MR. PONCE: May I continue, Your Honor? 17 THE COURT: Yes. 18 BY MR. PONCE: 19 Q 20 if you think you uttered these words. 21 is do you agree with me that this is what you heard on this 22 recording, correct? 23 A No. 24 Q You didn't hear that? 25 A I'm not agreeing with you. Sir, I'm not asking you what you uttered or what you meant What I'm asking you, sir, Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 31 of 41816 1 Q You're not agreeing with me that those are the words 2 uttered, or you didn't hear it? 3 A I'm not agreeing with you that that is what was said. 4 Q Okay. 5 and then later, "He's going to want it the same," what would 6 that be a reference to then? 7 A 8 question? 9 Q So you wouldn't be able to? 10 A No, I would not be able to, sir. 11 Q Go to the next part, which is part No. 4, I believe, the one 12 that we'll call the 18 minute marker. 13 A Yes. 14 Q Now, that also is you and Sergio engaged in that short 15 exchange, correct? 16 A Yes. 17 Q And you heard Sergio saying something to the effect about 18 having set it aside. Now, if what was said was, "I want the same kind," That was not what was said, so how could I answer that Do you see that? (Speaking Spanish)? 19 THE INTERPRETER: 20 THE WITNESS: "I set it aside." Yes. 21 BY MR. PONCE: 22 Q Do you recall that? 23 A Yes. 24 Q Maybe just barely audible, the 400 (Speaking Spanish)? 25 THE INTERPRETER: "Check, 400." Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 32 of 41817 1 BY MR. PONCE: 2 Q 3 giving you the money or at least discussing the 400 that he had, 4 you know, kind of set aside? 5 A 6 remember him telling me to check it or even telling me it's 400. 7 Q But he did give you the money? 8 A Yes. 9 Q And he did give you, well, 400 because you gave him the Would you agree with me that that is the point where he is I remember he gave me the money for the rifle, but I don't 10 change later? 11 A He gave me my brother's collection of the money. 12 Q If we go to part 5, the 5330. 13 A Yes. 14 Q The -- do you agree with me that that's also, in fact, the 15 last part of the exchange right at the end when you were already 16 going out of the Academy, correct? 17 A I believe it took place outside. 18 Q And the SG is Sergio Gonzalez speaking, correct, and the MP 19 is certainly Manuel Pena, correct? 20 A 21 conversation? 22 Q Is that correct? 23 A That's not correct. 24 Q Are you saying that MP here does not stand for Manuel Pena, 25 and SG does not stand for Sergio Gonzalez? See that? Can you go all the way down so I can see the whole Right here. Okay. Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 33 of 41818 1 A So who is Boy? 2 Q I'm asking about does MP here and SG here stand for -- the 3 SG, Sergio Gonzalez; the MP for Manuel Pena? 4 A Yes. 5 Q And, of course, if we go all the way down at some point in 6 time right before the end, there is a designation called Boy? 7 Do you see that? 8 A Yes. 9 Q And, of course, that's not you or Sergio. And that's your 10 son who is nicknamed Boy or you call Boy, correct? 11 A 12 couldn't have said anything in Spanish. 13 problem with this translation. 14 Q 15 was -- the laser or (Speaking Spanish)? 16 My boy, Manuel Pena, Junior, does not speak Spanish, so he That's why I have a Then he doesn't say -- but he certainly -- laser is what THE INTERPRETER: "Laser." 17 BY MR. PONCE: 18 Q 19 Academy, correct? 20 A 21 transcript, (Speaking Spanish). Is -- was turned over to him there at the -- outside the But this translation says my boy says, according to your 22 THE INTERPRETER: 23 THE WITNESS: "The laser." And that is not correct because my boy 24 does not speak one word of Spanish. 25 BY MR. PONCE: Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 34 of 41819 1 Q Are you saying that he said laser? 2 A I'm reading off of your translation that you're showing me. 3 And it says (Speaking Spanish.) 4 THE INTERPRETER: It doesn't say laser. "The laser." 5 BY MR. PONCE: 6 Q 7 ask this. 8 there at the very, very end, correct? 9 A I am agreeing that this interpretation is wrong. 10 Q Would you agree with me that at the very, very end, we hear 11 your son's voice? 12 A 13 there, and I don't know why they put him there because he 14 doesn't speak Spanish. 15 Q Okay. 16 A And Sergio speaks only Spanish. 17 wouldn't have engaged. 18 Q 19 that voice heard at the very end saying either (Speaking 20 Spanish) or the laser -- 21 THE INTERPRETER: Well, are you saying that then -- well, first of all, let me You agree that that's your son's voice that we hear And I did not hear my son's voice, no. I knew he wasn't That's why I know he Well, you've heard the recording. But you're saying that "The laser." 22 BY MR. PONCE: 23 Q -- was not your son? 24 A No. 25 out, because he did not talk. If you want to play it, I'll -- I want you to pick it Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 35 of 41820 1 Q 2 Sergio engaged in this short conversation at the very end, 3 correct? 4 A Yes. 5 Q The -- you mentioned that -- that at least as you're going 6 out, that the -- that you thought that the ones next to you were 7 also doing the same thing. 8 recording? 9 A That is incorrect. 10 Q You didn't -- you didn't say that? 11 A We're talking about hunting. 12 activity as buying hunting clothes or whatever. 13 that was the case, but that was the only thing I can remember 14 dealing with that. 15 MR. PONCE: 16 Let me ask you about this. You do agree that that's you and Did you hear that on the -- on the They're doing the same I object, Your Honor. I don't know if May I ask that the Court instruct this witness to be responsive? 17 THE COURT: The witness is so instructed. 18 BY MR. PONCE: 19 Q My question to you, sir, is did you, in fact, say that? 20 A No, I did not. 21 Q You didn't say those words? 22 A No, I did not. 23 Q Did you say any words similar to the ones that appear there? 24 A Your translation is wrong, sir. 25 Q What is it? Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 36 of 41821 1 A No, I did not. 2 Q What is the correct translation then according to you, sir? 3 A "We are involved in the hunting area." 4 Q You're saying that on that date, you said that, "We are 5 involved in the hunting," not -- 6 A 7 wrong and the audio is wrong. 8 discuss it piece by piece. 9 Q I didn't say hunting. I'm saying your translation here is If you want to replay it, we can We'll do that just momentarily, but my question to you then 10 is you know -- well, let me backtrack just a little bit. 11 born in Matamoros? 12 A Yes. 13 Q Educated in Matamoros? 14 A No. 15 Q Any -- your entire education here? 16 A I was born in Matamoros. 17 Brownsville. 18 Q You speak Spanish very fluently? 19 A Yes. 20 Q No problems at all? 21 A No, sir. 22 Q Okay. 23 your words in Spanish. 24 conversation, correct? 25 A You're My whole education was in You had an opportunity to hear this tape and hear Yes, sir. In fact, you're engaging in Spanish Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 37 of 41822 1 Q And just tell me what is it that you're -- and we have an 2 interpreter here. 3 that the interpreter can then tell us in English. 4 A 5 months ago now, and you want me to remember a certain little 6 piece of it that was small talk. 7 something else, so I don't remember what was -- what we were 8 talking about. 9 interpret it as something that I believe is not correct. Tell me what it is that you say in Spanish so You're talking about a conversation that took place like six Small talk as we're walking out the store. 10 Q 11 No. 5, the 5330 section, if we can, and I'll ask you to just 12 focus on that part that I'm asking you about, okay? 13 14 Okay. And you have it translated as You Let me just play that portion of -- that's part THE INTERPRETER: Your Honor, may I request a copy of the transcript, please? 15 THE COURT: Yes. 16 THE INTERPRETER: 17 MR. PONCE: May I approach, Your Honor? 18 THE COURT: Yes. Thank you. But for the benefit of the jury or for 19 the -- since this is -- the witness disputing the translation, 20 please provide the interpreter only what would be the Spanish 21 part of the -- 22 MR. PONCE: I've provided the sections not stapled, but 23 the last section which we're going to play is what she has right 24 now, Your Honor. 25 THE COURT: But does it have the English on the Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 38 of 41823 1 right-hand side? 2 3 MR. PONCE: Yes, Your Honor. Can I fold it in half so that she does not see it? 4 THE COURT: Yes. 5 MR. PONCE: Replay part 5, just that beginning portion. 6 (Tape playing.) 7 MR. PONCE: Please stop it. 8 BY MR. PONCE: 9 Q I don't know. 10 A I listened to it, and I couldn't make it out. 11 and it doesn't sound like that's what I said. 12 Q 13 saw the videotape, right? 14 A Which one, sir? 15 Q The one of you walking out with the weapon? 16 A Yes. 17 Q Okay. 18 regular screen so I can ask you? Okay. Did you get a chance to hear that? That's fine. Let me ask you this, sir. It's rough, When -- you And you agree with me that -- can we go back to the 19 Do you agree with me that -- that Sergio was not walking out 20 with you or wasn't at the gun counter when you actually finished 21 the transaction, got the rifle, and then headed out to the door? 22 A 23 the owner or the owner of the gun. 24 Q To the door, right? 25 A Yeah. When you finish the transaction, the manager walks you out, He has to walk you out with the gun, hands me over Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 39 of 41824 1 the gun, and then we went outside and we met there. 2 Q 3 the weapon? 4 A Who, the manager? 5 Q The manager. 6 A No. 7 Q And they do that for security reasons; is that correct? 8 A Yes. 9 Q So once you're at the doors just ready to come out, then as So he doesn't -- within the store, he doesn't just hand you 10 you're heading out toward the door, well, Sergio isn't with you 11 because he's outside, correct? 12 A 13 the manager, so I couldn't deal with anybody else. 14 Q 15 recall Sergio being outside, you know, walking towards you and 16 meeting you there at the door? 17 A That was my answer, sir. 18 Q I'm sorry? 19 A I don't recall. 20 Q Shall we play -- if I play the -- that tape for you, will 21 that help you remember? 22 A 23 24 25 I don't recall if he was or he wasn't. I had to deal with When you were approaching the door to get outside, you don't What was your answer? Yes, sir. MR. PONCE: Can we play Government Exhibit No. 18? (Videotape playing.) BY MR. PONCE: Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 40 of 41825 1 Q Playing Government Exhibit No. 18 at this time. You see 2 that that's Sergio, correct? 3 A Yes. 4 Q And he's going to his truck, correct? 5 A Yes. 6 Q And some other people in the truck next to his are walking 7 out of their truck, correct? 8 A Yes. 9 Q And now Sergio is headed back to the entrance of Academy, 10 correct, and he has something in his hand? 11 A Yes. 12 Q So would you agree with me that when you are close to the 13 doors inside the store walking out as you approach those doors, 14 that Sergio is not with you? 15 A He was not with me, no. 16 Q That he meets you there right outside. 17 agree that he meets you right outside, and then you and he walk 18 together to his truck? 19 A 20 sees that I'm already coming out, so he starts walking back with 21 me. 22 was coming all the way up to inside the store with me. 23 why I told you. 24 Q 25 that point together to the back of his truck? And then would you If you can see that, he's walking towards me; and then he But his intention -- it appears like in the video that he That's Well, do you agree with me that he -- you and he walk from Case 1:12-cr-00472 Document 106-4 Filed in TXSD on 01/22/13 Page 41 of 41826 1 A Yes. 2 Q Okay. 3 there -- 4 A Yes. 5 Q -- as you can see? 6 of your son Boy? 7 A Yes. 8 Q Okay. 9 away; you go another way, correct? Yes. And there you are providing him with some papers And that black item is now in the hands And you-all exchange your farewells. He goes one 10 A Sergio told me he was going home, and I didn't want to 11 keep the gun in my truck for liability reasons. 12 Q 13 told him this in the conversation, you had been downtown with 14 your son Boy, correct? 15 A Yes. 16 Q Let me ask you about -- If he was going home and you, moments before, because you I was running errands with him all day. 17 MR. PONCE: May I approach the board, Your Honor? 18 THE COURT: Yes. 19 BY MR. PONCE: 20 Q 21 correct? 22 A Yes. 23 Q You have talked about the dates surrounding the call right 24 before the purchase and certainly what happened during the 25 purchase, correct? You have talked about -- you can see what's written up here, Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 1 of 41 827 1 A Yes. 2 Q Let me ask you about over here, the first purchase, the 6th, 3 the 7th, and the 8th, okay? 4 A Okay. 5 Q You heard those particular recordings, correct? 6 A Which ones, sir? 7 Q The ones for the 6th, 7th, and 8th, correct? 8 A The ones you submitted I heard, sir. 9 Q Excuse me? 10 A I believe the ones you submitted with Mr. Gamez, I heard 11 those, sir. 12 Q 13 back before the start of the -- of the hunting season, that 14 y'all discussed about having another -- needing another 270 15 rifle because y'all wanted to have another 270 rifle. 16 remember that? 17 A Yes, sir. 18 Q So by December the 5th, you have bought that 270 rifle, 19 correct? 20 A Yes. 21 Q Okay. 22 December the 5th was: 23 whatever. 24 A Yes. 25 Q Well, having bought that weapon on December the 6th, the I'm going to ask you about that. You've said that sometime Do you So the discussion with you and your brothers before We need a 270, 270, 270, whatever, You buy it December, December 5th, correct? Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 2 of 41 828 1 very next day, December the 6th, for the very first time, isn't 2 it true that you then become aware that Sergio wants to get a 3 second 270, correct? 4 A 5 blowing him off. 6 Q 7 first time that Sergio says that he wants a second 270, correct? 8 A 9 first one, and I'm not going to spend money on the second one, He called me, and I wasn't responding to his calls, just On December the 6th, isn't it true that that's the very That is correct. But my -- I had just spent money on the 10 so I blew him off. 11 Q 12 true? 13 A Yes. 14 Q And in 29A, once again, the MP is Mario -- stands for 15 Mario -- excuse me, Manuel Pena, and the SG for Sergio Gonzalez, 16 correct? 17 A Yes. 18 Q Okay. 19 the 5th about purchasing a 207 and then eventually gets to be 20 December the 5th and the 270 is purchased, and this is the call 21 then, what I'm showing you right now, for December the 6th when 22 you would have known for the very first time that Sergio wanted 23 a second 270, correct? 24 A No, that's not correct. 25 Q Are you saying that -- that your discussions with your Well, you spoke to him because we have No. 29A; isn't that And if -- if there's been discussion before December Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 3 of 41 829 1 brothers and others before this date, before December 2 the 5th was that you-all were going to buy two 270 weapons, 3 rifles? 4 A 5 show, but there was calls before where Sergio called and said: 6 What do you think if we get another one? 7 this makes it look like it was the first time, but it was not 8 the first time I contacted Sergio. 9 that, but it was not the first time. This recording is of the part that the government wants to So let me ask you this then. Q 11 two weapons before December the 5th? 12 telling us? 14 MR. GAMEZ: Sergio had wanted you to get Is that what you're Objection, Your Honor. He's asking him to get in the mind of what Sergio wanted him to do. 15 16 So Maybe they didn't record 10 13 That's not here. THE COURT: or discussed. 17 He can testify about what he was asked to do The objection is overruled. THE WITNESS: Can you repeat your question? 18 BY MR. PONCE: 19 Q 20 you had been discussing getting two rifles, those two 270 21 rifles? 22 A That is not what I'm saying, sir. 23 Q What are you saying then when you say that? 24 A When I say what? 25 Q What you just told us. Are you telling us that before December the 5th, Sergio and Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 4 of 41 830 1 A About what? 2 THE COURT: Open ended question. 3 MR. PONCE: Yes, Your Honor. Pose a question. 4 BY MR. PONCE: 5 Q 6 presumably about a second weapon that -- you know, that aren't 7 here. 8 of that? 9 A You said there had been other conversations with Sergio So my question to you is what was your understanding then What I'm saying is that the conversation you're showing 10 shows what you want to show. 11 where we talked about getting another ranch rifle that should 12 have been recorded because Sergio was already -- 13 14 THE COURT: But there was other conversations All right, sir. You have to answer the question. 15 THE WITNESS: 16 BY MR. PONCE: 17 Q Okay. Are you saying that prior to -- 18 MR. PONCE: May I approach the board, Your Honor, here? 19 THE COURT: Yes. 20 BY MR. PONCE: 21 Q 22 this way, that there's -- there should have been other 23 conversations you had with Sergio? 24 A No. 25 Q You heard the testimony that December the 5th is when the Are you saying that prior to December the 5th going back Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 5 of 41 831 1 agents from the BEST Task Force just happened to be there at the 2 time and happened to see you there. 3 that. 4 the 6th. 5 A Yes. 6 Q So beginning December the 6th is when they start talking to 7 Sergio about what they had observed the day before. 8 agree with me? 9 A They weren't expecting And then they didn't even talk to Sergio until December Do you recall that? Again, that's what the agents are saying. Do you The rifle was 10 bought on the 5th. 11 shown any proof that they didn't follow him home on the 5th and 12 talk to him on the 5th. 13 us, and I'm telling you he called me before and told me about 14 that. 15 Q 16 told you that -- that he had been questioned by agents that same 17 day of the purchase? 18 A That is not what I said, sir. 19 Q Are you saying that Sergio called you on December the 5th 20 and already started asking you or telling you about buying a 21 second 270? 22 A 23 correct? 24 Q 25 And they haven't -- anybody -- nobody has This is what the government is telling You're saying that Sergio called you on December the 5th and Your recording is of December the 6th in the afternoon; am I Let me show you this, sir. (Tape playing.) Do we have 29A? Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 6 of 41 832 1 MR. PONCE: Let me stop there. 2 BY MR. PONCE: 3 Q 8:11 p.m.? 4 A Yes. 5 Q You heard that? 6 called you to tell you about this second weapon? 7 A Before this conversation took place, he called me. 8 Q Okay. 9 agents asked him to go to the FBI office or even before the 10 agents arrived at his apartment to ask him to go to the FBI 11 office? 12 A 13 they're saying. 14 conversation. 15 with Sergio that issue, and he offered to -- he offered me: 16 Hey, let's buy another ranch rifle. 17 spent money on this one. 18 another one. 19 Q 20 you made that purchase on December the 5th at about noon, and 21 now we go over to the 6th, and that call is being made at 22 8:11 or so in the evening. 23 MR. GAMEZ: 24 25 When are you saying that -- that Sergio And before that conversation took place and after the I don't know what time the agents arrived just based on what I'm telling you, you're showing me a And prior to this conversation, I had discussed And I told him: I just I'm not going to spend money on My question to you is, well, when did you discuss it? repetitious. So when did you discuss it? Your Honor, objection. Repetitive and argumentative. THE COURT: If Overruled. This is becoming Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 7 of 41 833 1 THE WITNESS: 2 BY MR. PONCE: 3 Q 4 I'm not sure. Let me go -- can we go back to the regular screen? I'm going to show you 29A. You agree with him that when 5 he's talking about Lalo, that he tells you that Lalo is being 6 very persistent, very (Speaking Spanish)? 7 THE INTERPRETER: 8 THE WITNESS: 9 "Persistent, stubborn." His name is Lalito, not Lolito. And I don't remember that exact term being used. 10 BY MR. PONCE: 11 Q 12 why you're telling us that? 13 A You're saying persistent. 14 Q Here and over here -- (Speaking Spanish.) Because you don't remember what was on the tape? 15 THE INTERPRETER: 16 THE WITNESS: Is that Where does it say persistent? Stubborn, persistent. (Speaking Spanish) means crying, upset, to 17 me. To you it means persistent. 18 off. 19 BY MR. PONCE: 20 Q 21 that there is a reference in there or at least the word is 22 mentioned Chiquin, Chiquin or Chiquin, or do you disagree with 23 me there? 24 A I agree with you. 25 Q Do you agree with me that he says to you that, "So I can Okay. That's why that translation is Let me ask you then, do you certainly agree with me Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 8 of 41 834 1 give him his Christmas gift"? 2 A Yes. 3 Q And did he ask that -- well, to -- "See if, I wanted to 4 him -- to buy him the 243, or what do you think? 5 me out?" 6 A 7 paper and off paper. 8 would lead up to saying we're going to buy the ranch rifle and 9 Chiquin is going to like it. You hear Sergio say that? See, what isn't clear here is that this conversations on If we talk about all the conversations, it 10 he's going to like it. 11 owner, telling his son: 12 It's mine. 13 conversations are off paper. 14 15 Can you help Or Lalito is going to use it and I have no problem with him, the part This is your rifle. I don't have no problem with it. MR. PONCE: But it's my rifle. So the Your Honor, may the Court ask this witness to be responsive? 16 THE COURT: The witness is so instructed. 17 BY MR. PONCE: 18 Q 19 you, the ones that I'm pointing to you here on this screen? 20 A I don't recall, sir. 21 Q Well, do you recall if he says something about, well, when 22 he gets the money, he'll let you know? 23 A 24 context or anything. 25 Q But my question, sir, is does Sergio utter these words to I remember he was speaking about the money, but not to what I'm going to show you 29 -- 29B. I won't ask you about this Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 9 of 41 835 1 whole thing, but -- but I will ask you one thing that appears 2 here. 3 conversation between you and he for the most part, correct? 4 A Yes. 5 Q And this is a conversation then of the following day, 6 December the 7th, about 5:40 p.m. 7 A Yes. 8 Q Okay. 9 ask you one thing about -- about this. And in this conversation here, once again, it's a Do you see that? And I won't go through the whole thing, but I'll just You do -- you had a 10 chance to hear that conversation, and you did hear him say words 11 to the effect about the son's rifle. 12 word either son or sons, correct? 13 A Yes. 14 Q And you did certainly hear him utter words to the effect 15 that, "Well, can you go right now to buy it or what, or you tell 16 me when." 17 A 18 whatever date you told me. 19 19th when we all got together and divided the equal parts. 20 was not ready to purchase anything at that point. 21 In other words, use of the Do you recall that? Again, he called me 20 times. This is the 6th or the 8th or We didn't end up going until the So he could have told me whatever. I The majority of this 22 conversation was me blowing him off. So if you're asking me 23 specifically did he say that, then I don't recall. 24 Q 25 now to buy or -- or you tell me when"? You don't recall he uttered these words, "Can you go right Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 10 of 41836 1 A No, I do not recall. 2 Q I'm going to show you C. 3 A Yes. 4 Q And once again, I won't go over -- through this whole thing 5 here, but -- but the substance of this conversation is about the 6 purchase of the rifle, correct? 7 A Yes. 8 Q And you happen to be in Matamoros, correct? 9 A Yes. 10 Q And you say words to the effect: 11 be back right away, or words to that effect? 12 A What date was this? 13 Q You saw that? 14 A Yes. 15 Q So remember, we're talking about December 6th, 7th, and 8th, 16 okay? 17 A Okay. 18 Q You eventually at some point in time tell him that you had 19 gone -- came -- gone presumably to Matamoros or came early there 20 to run some errands, correct? 21 A Yes. 22 Q You did hear that on the -- on the tape, correct? 23 A I believe so. 24 Q And, of course, that you were in Matamoros. 25 on the tape too? I don't know if you see that, 29C? If there's no line, you'll The 8th, okay. I saw it. You heard that Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 11 of 41837 1 A Yes. 2 Q And you heard that -- also on the tape that -- that he's 3 asking you about the -- about the rifle, if, "Today is when you 4 said that we could." 5 A Yes. 6 Q And that is a reference to today, meaning today is when we 7 can make that purchase, correct? 8 A 9 we hadn't even discussed it. Do you remember hearing that? Again, he wanted to buy it. I wasn't ready. My brother -- Off the paper we said: We'll get together. Well, let 10 me call my brothers. I'm blowing him off 11 again. 12 Q 13 Let's -- let's hold off. 14 together to talk and see what we're going to do. 15 that correct? 16 A I did tell him. 17 Q In this particular conversation with him, you didn't tell 18 him that, did you? 19 A 20 the agents. 21 Q 22 you will agree he wants to see when -- when y'all can make the 23 arrangements, correct? 24 I'll call you. 25 A This is the 8th. So when you tell him over here -- you don't tell him: We need to get all the brothers Not in this conversation. Okay. Yes. That's -- is The one that wasn't recorded by That's the one I'm talking about. In this conversation, you did tell him, well, that Correct? And you say: Well, when I get back, Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 12 of 41838 1 Q And you also then follow-up by saying: Or call Jorgillo, 2 correct? 3 A Yes. 4 Q Jorgillo meaning your other brother, Jorge Pena? 5 A My brother, yes. 6 Q You call him Jorgillo? 7 A Yes. 8 Q Now, you say that: 9 right? Well, call Jorgillo. He's also there, Those are words you uttered? 10 A I meant in Brownsville or home or whatever. 11 Q Okay. 12 A Uh-huh. 13 Q Is that a yes? 14 A Yes. 15 Q And then you add that, "The guy had the day off," correct? 16 A Yes. 17 Q When you say, "The guy had the day off," you were talking 18 about Jorgillo? 19 A Yes. 20 Q Jorgillo is not working. 21 available, correct? 22 A 23 deal with it. 24 I hadn't talked to him. 25 I'm busy right now basically. "He's there." In other words, available, correct? He has the day off, so he's I told Sergio so he could leave me alone. I don't know. I didn't want to I didn't check Jorge's schedule. I just told him: Call him. You know, Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 13 of 41839 1 Q Well, what you do tell him, not basically, but what you 2 actually tell him is: 3 had the day off. Call Jorgillo. He's also there. Isn't that true? 4 MR. GAMEZ: I would object, Judge. 5 THE COURT: She cannot hear you. 6 MR. GAMEZ: I would object. This is becoming 7 repetitious, redundant, repetitive. 8 asked and answered, and he's being argumentative with the 9 witness. 10 The guy THE COURT: The questions have been The witness is not responding. Overruled. 11 BY MR. PONCE: 12 Q 13 actual words you uttered? 14 A Yes. 15 Q Is that true? 16 A That's what I told Sergio, yes. 17 Q So you didn't tell Sergio at that point in time: 18 Sergio, I know that you can buy that weapon. 19 Go buy it. 20 A I did tell him. 21 Q You didn't tell him right then and there, did you? 22 A Not in this conversation you have before me, but I did tell 23 him. 24 Q 25 available, get Jorgillo so he can go because it's his day off. My question to you is: The words that appear here are the Hey, You don't need me. Quit bugging me. And what you did tell him was, well, since you weren't Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 14 of 41840 1 That's what you meant, isn't it? 2 A 3 I'm not going to do it. 4 these conversations happen at this time. 5 Q I'm talking -- 6 A It wasn't until after this date that we all agreed and we 7 all pitched in, and that's when we got it. 8 Q 9 this point in time when you say that you'll get back to him and He wanted to buy one together. I said: No, I'm not ready. You know, you go get your own. All I'm talking about this conversation of December the 8th at 10 you suggest that, well, he call Jorgillo because he's there. 11 other words, he's available. 12 A Okay. 13 Q You're suggest -- is it not true that you're suggesting to 14 Sergio to have him contact Jorgillo so Jorgillo can go and make 15 that purchase? 16 A 17 to deal with Sergio at that time. 18 Q No, sir. In He had the day off. Isn't that true? I told him to call Jorgillo because I didn't want Why did you want him to call Jorgillo if -- 19 THE COURT: All right. 20 MR. PONCE: I -- Don't argue with the witness. 21 BY MR. PONCE: 22 Q 23 call Jorgillo? 24 A Because I didn't want to deal with him at that time. 25 Q Okay. When you told him to call Jorgillo, why did you want him to You didn't want to deal with him. But what was he Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 15 of 41841 1 going to then get through Jorgillo? 2 A 3 Jorge. 4 So I told him call Jorgillo. 5 through, and I told him call him. 6 right now. 7 Q 8 say: Jorge, my brother, is -- he meant -- I met Sergio through Sergio knows all my brothers. Okay. That's the friend that we met him I don't want to deal with you But those weren't the words you used. You didn't I don't want to deal with you right now? 9 10 He's closest to Jorge. THE COURT: All right. Don't argue with the witness. You don't have to answer the question. 11 MR. PONCE: Yes, Your Honor. 12 BY MR. PONCE: 13 Q Let me go on. 14 A Yes. 15 Q Let's -- let me ask you some questions about that. 16 true that when you were initially questioned about the rifles 17 purchased at Academy, that -- that you said that the -- that the 18 rifles were at -- were at Sergio -- at Sergio Gonzalez's house? 19 A Yes. 20 Q Well, and when you were questioned by agent -- by the agents 21 there, you told them that -- that those rifles that -- that were 22 at Sergio's house were actually a 30-06 -- were 30-06 Mossberg 23 hunting rifles; isn't that true? 24 A No, that is not true. 25 Q So that isn't true, and Agent Owens got that wrong? Let me talk about May the 24th, okay? Isn't it Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 16 of 41842 1 A Yes. 2 Q Okay. 3 A I have no reason to buy a 30-06. 4 Q Did you -- isn't true that you told Agent Owens that you had 5 purchased the guns for use on the deer lease? 6 A Yes. 7 Q So that is true. 8 A Yes. 9 Q Isn't it true that you told Agent Owens that -- that after He got that right? 10 returning from the deer lease, that Sergio wanted to keep the 11 rifles and that Sergio asked to buy them from you? 12 A That is not true. 13 Q So he got that wrong? 14 A He made it up. 15 Q Okay. 16 A I don't know if he got it wrong or he made it up. 17 Q Isn't it true -- isn't it true that you told Agent Owens 18 that you had used both rifles twice and -- well, let me just 19 stop there. 20 A That is absolutely not true. 21 Q So he got that wrong? 22 A I don't know if he got it wrong or he made it up; but no, 23 that is incorrect. 24 Q 25 you did tell Agent Owens that -- that you could call Sergio at Okay. That you had used both rifles twice. So isn't it true that then you -- at some point that Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 17 of 41843 1 that moment and that Sergio could bring the rifles over, 2 correct? 3 A That is correct. 4 Q Okay. 5 wanting him to bring were not the 30-06 Mossbergs because you 6 say you didn't tell him that, correct? 7 A That's correct. 8 Q That presumably when you say you said this, you were 9 referring to the Remingtons, correct? But you're telling us that the rifles that you were I didn't tell him. 10 A Yes. 11 Q Okay. 12 the 30-06 Mossbergs that Sergio would have brought, correct? 13 A 14 gotten his report right. So he got at least that part wrong if he -- if it is If the conversation would have been recorded, he could have 15 THE COURT: 16 THE WITNESS: 17 THE COURT: 18 Sir -- Okay. This is going to be the last time that I instruct you -- 19 THE WITNESS: 20 THE COURT: 21 All right. Okay, ma'am. Sorry. -- to be responsive to the question asked. If you refuse to follow my order, there will be consequences. 22 THE WITNESS: 23 MR. PONCE: May I proceed, Your Honor? 24 THE COURT: Yes. 25 BY MR. PONCE: I understand, Judge. Sorry. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 18 of 41844 1 Q When Agent Owen says that you told him that Sergio Gonzalez 2 is a legal permanent resident, he got that right, correct? 3 A 4 up. 5 Q You don't recall telling the agent? 6 A Specifically that he was -- he might have asked me and I 7 agreed. 8 Q But nevertheless, that is correct? 9 A Yes. 10 Q Isn't it true that you also told him that -- that Sergio 11 used to live at The Border Apartments in Brownsville? 12 A I told him he lives at The Border Apartments. 13 Q Not that he used to live, okay? 14 May 24th, correct? 15 A Yes, I remember that date. 16 Q Did -- isn't it true you also, well, told him that he had 17 recently moved back into his house? 18 A No, I did not say that. 19 Q So Agent Owens -- Owen got that completely wrong because you 20 would not have known whether he moved here, moved there or 21 wherever? 22 A 23 saw him was at The Borders. 24 house? 25 Q I don't remember exactly saying it, but it might have come Is that what -- I don't know if I said it. This is in May of -- I have no knowledge of him moving anywhere. Okay. The last time I Why would I say something about his Isn't it true that you told Agent Owens that -- that Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 19 of 41845 1 you had bought the rifles for yourself to lend to Sergio because 2 Sergio couldn't afford to buy the rifles? 3 A 4 Sergio could use it. 5 so we bought it part by part. 6 I told the agent. 7 Q So Agent Owens got this wrong? 8 A How did he get it wrong? 9 Q Well, Agent Owens then got it wrong, according to you, if Misconstrued. I said I bought the rifles for the ranch and And he couldn't afford a whole rifle, and That's what I was -- that's what 10 that's not what you told him? 11 A Can you repeat what he said? 12 Q Well, he says that you mentioned that you had bought the 13 rifles for yourself to lend to Sergio Gonzalez because Sergio 14 could not afford to buy the rifles. 15 A Then he did get it incorrect. 16 Q So that's wrong. 17 had never reimbursed you or given you money for the rifles. 18 That is correct. 19 A 20 told him: 21 anything dealing with this rifle. 22 don't know how they wrote it down. 23 Q 24 that you had never -- that Sergio had never reimbursed you or 25 given you money for the rifles? You mentioned to him that -- that Sergio Is that what you told him? The agent was suggesting that it was a straw purchase, and I This is my rifle. I did not get paid for doing That was my statement. I Well -- well, my question to you, sir, is did you tell him Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 20 of 41846 1 A Yes. 2 Q And did you tell us here today that -- that at least for the 3 second rifle, that instead of everybody pitching in $80 like the 4 first purchase, on the second purchase, everybody pitched in 5 $60? 6 A 7 doing a favor. 8 in as part owners, and that is what I'm talking about. 9 what I told the agent as well. Yes, but the agent was asking me about getting paid for And my response to that was no, this is pitching That's 10 Q I'm talking about your statement when the agent says that 11 you're telling him that Sergio had never reimbursed you or given 12 you money for the purchase of the rifles. 13 here today that Sergio, for the purchase of the second rifle, 14 did give you $60 because everybody's share was $60? 15 A Yes. 16 Q So when he says here that you said that you had never 17 been -- they had -- that Sergio had never reimbursed you or 18 given you money for the rifles, then that's -- when you're 19 telling the agent that, that's not true, because at least 20 according to your testimony here, you got at least $60 from 21 Sergio, correct? 22 A 23 You're getting paid for this straw purchase. 24 We're equal partners in that. 25 I made to the agent. Is your testimony Again, I told the agent -- the agent suggested first: And I said: No. That was my exact statement that Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 21 of 41847 1 Q Well, you didn't say that you had never been reimbursed or 2 given money? 3 A Then that is incorrect. 4 Q Okay. 5 A Yes. 6 Q Isn't it true that -- that you told Agent Owens that you 7 denied that Sergio had paid for the rifles? 8 A Paid to who? 9 Q My question to you, sir, is do you deny -- do you admit or But you do admit here that you got at least $60? To me? 10 deny that you told Agent Owens that -- that you were denying 11 that Sergio paid for the rifles? 12 A Yes, I did tell him that. 13 Q But you do admit that at least on December the 19th, 14 physically Sergio handed you the $400 for the purchase of that 15 rifle, correct? 16 A 17 testimony. 18 Q So Agent Owens got that wrong when he says this here? 19 A What part? 20 Q Well, about you denying that Sergio had paid you for the 21 rifles? 22 A 23 the rifles, and I said no. 24 Q 25 had at least physically paid you money? The money collected from my brothers, yes, that was my No, he didn't get it wrong. He asked me if he got paid for Well, you denied that he had paid -- so you said no. But he Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 22 of 41848 1 A It's not paid -- 2 Q -- or -- 3 4 THE COURT: Excuse me. Allow the question to be completed before you give an answer. 5 THE WITNESS: Okay. I thought he was done. 6 BY MR. PONCE: 7 Q 8 and certainly that included at least $60 from Sergio, correct? 9 A Physically paid you the $400 wherever that 400 came from, Paying to me suggests that he's paying me to receive 10 something. I'm letting you know that he brought the money and 11 handed it to me. 12 with you. 13 Q 14 seen those rifles around January of 2012? 15 A No, that is incorrect. 16 Q So he got that wrong. 17 that -- that actually you were told that those rifles had been 18 in FBI possession since December the 6th and December the 19th; 19 is that correct? 20 A I believe so. 21 Q So it's at that point that you then told the agents that you 22 remember -- that you now admit that, well, you couldn't remember 23 the last time you saw those rifles, correct? 24 A No, that is incorrect. 25 Q So Agent Owens got that wrong also? If that is your statement, then yes, I agree But did you -- you also told Agent Owens that you had last Okay. It was at that point in time Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 23 of 41849 1 A Yes, he did. 2 Q You told Agent Owens -- Owen that you thought that you had 3 brought them back from the deer lease the last time you went 4 hunting; isn't that correct? 5 A No. 6 Q So Agent Owens got that wrong? 7 A Yes. 8 Q Didn't you then tell him that -- that during that trip, that 9 trip during that time, that during that trip, that you had 10 actually sighted the rifles? 11 A 12 rifles on our little range at the ranch, and we sighted in 13 rifles, check for accuracy before the hunt. 14 me: 15 I'm not sure if it was those. 16 numbers. 17 them. 18 Q 19 during this trip that you had actually sighted those rifles, he 20 got that wrong? 21 A He misconstrued it. 22 Q How about the part where he says you mentioned that you had 23 paid cash for the rifles? 24 A 25 you repeat it, please? I advised Agent Owens that Sergio went with me, and we had And then he asked Are these the rifles, the ones you sighted? I said: No, I didn't check the serial But in my belief at that time was that Sergio had I didn't know that they had them. I told them the truth. So when you -- when Agent Owens says that you said that That I told him? Did he get that right? I didn't understand your question. Can Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 24 of 41850 1 Q Let me just ask it this way. Did you tell him that you 2 thought that you had paid cash for the rifles, but then later 3 said that one of them might have been purchased with a credit 4 card? 5 A 6 how it was. 7 Q 8 with a credit card or not. 9 Owens that? Yes, that could have been true. No, no. I didn't remember exactly Well, I'm not asking if it's true whether you paid I'm asking if did you tell Agent 10 A Yes, I did. 11 Q Agent Owen that. 12 A Yes. 13 Q You did tell him that the cost of the rifles was between 14 $280 and $300; is that correct? 15 A Yes. 16 Q So he got that right? 17 A Yes. 18 Q Is that correct? 19 that in addition to the -- the two rifles, the two hunting 20 rifles, the Remingtons, that you also had a 270 Mossberg rifle, 21 a .12 gauge shotgun, and a .40 caliber Taurus pistol. 22 tell him those things, correct? 23 A Yes. 24 Q And those things are correct? 25 A Yes. Okay. So he got that right? When Agent Owen says that you told him You did Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 25 of 41851 1 Q Okay. So when he -- when he says that -- specifically 2 mentions the type of weapons that you have in addition to the 3 Remingtons you say you have, he got it correct when he says that 4 you told him that it was a 270 Mossberg, correct? 5 A Yes. 6 Q So he got those two parts correct, the 270 and Mossberg? 7 A Yes. 8 Q That it's a rifle? 9 A Yes. 10 Q So he got that right. 11 was a shotgun, right? 12 A 13 not. 14 Q 15 shotgun, correct? 16 A Yes. 17 Q So he got that right specifically, correct? 18 A Okay. 19 Q And regarding the third -- the other weapon, when you said 20 it was a Taurus pistol, he got that right because it is a 21 Taurus, what you have, right? 22 A Yes. 23 Q And, in fact, he got it right when he says that you told him 24 it was a .40 caliber pistol, correct? 25 A I told him .12 gauge. Well, .12 gauge. He also got right that the other one I don't know if he wrote it down or You specifically told him .12 gauge Yes. Yes, that is correct. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 26 of 41852 1 Q 2 that Sergio was with you at Academy both times that you 3 purchased a rifle, he -- you -- well, let me rephrase that 4 question. 5 When he says that you told him that -- or you also told him Is it correct that you told him that Sergio Gonzalez was 6 with you at Academy both times you purchased the rifles? 7 A I don't remember exactly, but it could have been. 8 Q So you don't remember one way or other as to that part? 9 A If I told him on both occasions, I don't know if he asked 10 me. But if he would have asked me, I would have said yes. 11 Q 12 testimony, you do admit that Sergio was with you on December 13 the 5th and December the 19th, correct? 14 A Yes. 15 Q So if he would have asked you that, that would have been 16 your answer? 17 A Yes. 18 Q And at the -- toward the end of the -- of your interview, 19 you did tell him that -- that Sergio is a legal permanent 20 resident who used to live at The Border Apartments. 21 tell him that toward the end again? 22 A 23 resident. 24 And I do remember saying that he lives at The Border Apartments 25 because that's where I've known his address to be. But certainly here through your testimony, your own Did you Again, I don't remember saying that he was a legal permanent I wouldn't have had a problem telling him if it did. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 27 of 41853 1 Q But my -- but it -- what you told him was that he used to 2 live at The Border Apartments but had since moved back to his 3 old home. 4 A 5 said his house was rented. 6 Q Okay. 7 A -- because he couldn't afford it. 8 Q Okay. 9 that -- that Gonzalez -- that Sergio used to be a security guard No, that would be incorrect, because my testimony here, I He rented his house -- When -- isn't it true that you also told Agent Owens 10 or toll collector at the Gateway Bridge in Brownsville? 11 A Yes, that is correct. 12 Q So he got that right? 13 A Yes. 14 Q That -- about the security guard, about or being a toll 15 collector, just like you've testified here, and that it was at 16 Gateway and that it was in Brownsville, correct? 17 A Yes. 18 Q And you also told him that you had met Sergio about -- 19 approximately eight years before through your brother Jorge, 20 correct? 21 A 22 that. 23 Q So he got that wrong? 24 A Yes. 25 Q And you met him through Jorge? No. I met him in 1999. Never had any reason to change Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 28 of 41854 1 A Jorge used to be a deputy at Gateway and I was working 2 there, so we would -- we met there, yes. 3 Q So you didn't meet him through Jorge? 4 A Yes. 5 Q So Owen got that right? 6 A Yes. 7 THE COURT: Mr. Ponce, let me ask you. Is it possible 8 that we can take a break at this time? 9 for the jury if you can stop now so that we can continue 10 I've got an early dinner thereafter? 11 MR. PONCE: Yes, Your Honor. 12 THE COURT: All right. Members of the jury, it's 4:21. 13 I know you probably don't eat early, but maybe you'll enjoy what 14 you've -- it's already here, so that will give you a break as 15 well. 16 way you can have a dinner break and we can keep going. 17 So I'm proposing that we recess for 45 minutes, and that During this recess, you're still under my admonishment that 18 you must not form or express any opinion about the facts of this 19 case. 20 Thank you. (Jury leaves courtroom) 21 THE COURT: Thank you. Please be seated. 22 Sir, you may step down. 23 And, counsel, just -- we'll resume again. 24 to be 45 minutes. 25 pizza. I'm sorry. I'd like for it I mean, you know, we've ordered Y'all figure it out for yourselves. Thank you. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 29 of 41855 1 (Recess taken from 4:24 to 5:24.) 2 3 4 THE COURT: Thank you. Please be seated. Sir, if you'll have a seat in the witness chair. Please bring in the jury. 5 MR. PONCE: Your Honor, he had a request of the Court. 6 THE COURT: I'm sorry? 7 MR. GAMEZ: Your Honor, if it does not displease the Mr. Gamez? 8 Court, I understand he's just going to take a few minutes, and 9 I'm not going to recross or redirect, that is, and I'd like -- 10 some of the witnesses tell me they got to go to work. 11 like they have to go to work. 12 I believe, over no objections, since we're both going to pretty 13 much rest pretty soon, let them go. 14 THE COURT: Okay. I mean, And if it's okay with the Court, Well, I have the issue of the 15 witness -- of your witness questioning a witness that was on the 16 government's witness list, and so that's -- you can release your 17 other witnesses, but that witness has to remain. 18 MR. GAMEZ: I don't know if he was on the government's 19 witness list, but he was not my witness, but my client's 20 witness. 21 22 23 THE COURT: If it's your client's witness, it's your MR. GAMEZ: Yes. witness. That's one of them that has to go 24 work, a Brownsville PD officer that has to go to work and has a 25 class that he has to give at 5:30. And he's like begging me. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 30 of 41856 1 And I tell him all I can do is come to you, Judge. 2 going to use him as a character witness obviously anyway. 3 4 THE COURT: But I'm not But the issue is not whether you're going to use him, but what explanation he has to me. 5 MR. GAMEZ: Yes, Judge. 6 THE COURT: So he cannot -- he's not excused. 7 MR. GAMEZ: So I can let everyone else go except him? 8 THE COURT: Yes. 9 MR. GAMEZ: I shall do so. 10 MS. BETANCOURT: Your Honor, would that same instruction 11 apply to the officer that called me regarding the incident, 12 Officer Rora? Would you like him to stay? 13 THE COURT: 14 MS. BETANCOURT: 15 THE COURT: Yes, he has to stay. 16 MR. GAMEZ: If he asks me what it's about, do I say 17 Oh, is he here too? Yes, Your Honor. anything? 18 THE COURT: I suggest not. 19 MR. GAMEZ: Then I shan't. 20 THE COURT: Sorry. 21 MS. BETANCOURT: He's not back yet. Your Honor, one of the witnesses 22 apparently has a question. 23 THE COURT: 24 MS. BETANCOURT: 25 THE COURT: May I be excused to answer that? Yes. Thank you, Your Honor. If everybody else is present, yes, please Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 31 of 41857 1 bring in the jury. 2 (Jury enters courtroom) 3 THE COURT: 4 Thank you. Please be seated. Mr. Ponce, you may continue. 5 BY MR. PONCE: 6 Q Sir, your name for the record, again? 7 A Manuel Eduardo Pena. 8 Q I just have a few quick questions. 9 May 24th of this year, you still had Sergio Gonzalez's phone Sir, by -- on 10 number, correct? 11 A Yes. 12 Q He had yours? 13 A Yes. 14 Q And you knew where he lived, how to get ahold of him, 15 correct? 16 A Yes. 17 MR. PONCE: Nothing further, Your Honor. 18 THE COURT: Mr. Gamez? 19 MR. GAMEZ: Judge, it's 5:30 Friday. 20 21 22 is tired, and I believe we would -THE COURT: Excuse me. Don't make a speech. Just what's your announcement? 23 MR. GAMEZ: We would -- 24 THE COURT: Sir, you may step down. 25 I believe the jury witness or make an announcement. Call your next Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 32 of 41858 1 MR. GAMEZ: We would close, Judge. 2 THE COURT: You would rest? 3 MR. GAMEZ: We would rest, Judge. 4 THE COURT: What says the government? 5 MR. PONCE: Government at this time closes. 6 THE COURT: The defendant closes? 7 MR. GAMEZ: Yes, Judge. 8 THE COURT: All right then. 9 10 Members of the jury, at this time I'm going to recess you for a very brief time. This is what we have to do. 11 As I told you in the preliminary instructions, after the 12 close of evidence, the Court will consider -- or, I mean, will 13 be considering the draft of the charge of the Court and then it 14 will hear objections and I'll rule. 15 up with the final version of it, you will have the charge read 16 to you, and then you'll hear arguments of counsel, and then you 17 can retire to begin your deliberations. 18 And then after we've come Now, I've already -- we've already started the process of 19 the drafting of the charge, so it's not going to be an all -- a 20 long ordeal, but I do ask you to please stand aside for a few 21 minutes, and we will get with -- get you back in here to hear 22 the charge of the Court in hopefully very short order. 23 you. 24 25 So thank Please stand aside. (Jury leaves courtroom) THE COURT: Well, had I known it was going to be this Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 33 of 41859 1 short, I would have taken care of this before I brought the jury 2 back in, but that's okay. 3 4 5 Counsel, have you had a chance to -- please be seated. Have you had a chance to review the draft of the charge? MR. GAMEZ: Your Honor, I've had a very short period of 6 time in between lunch and now to review it, being in trial, to 7 answer the Court. 8 9 THE COURT: Okay. Well, there will be obviously some changes that need to be made, given that the defendant has 10 testified. Specifically, if you don't mind just taking your 11 copy, on page 3, last paragraph, the highlighted section will -- 12 the highlighted phrase will remain. 13 MR. GAMEZ: On page 3 of your charge, Judge? 14 THE COURT: Yes. 15 MR. GAMEZ: Okay. 16 17 My first highlighted section is -THE COURT: Where it says, "including the defendant," is 18 it highlighted in gray? 19 MS. BETANCOURT: 20 21 22 23 I don't have a highlighted section. I'm sorry, Your Honor. I'm not seeing that either. THE COURT: I'm sorry. Okay. Well, maybe I have a different copy. I was looking at a different copy. MS. BETANCOURT: 24 though, Judge. 25 paragraph, second line. Sorry. I understand what you're saying, "An important part of your job." It's the last Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 34 of 41860 1 THE COURT: That's okay. Let's go on to the highlighted 2 sections of the draft that we -- I now have. 3 is out. 4 Page 4, Section 5 There was no evidence -- no character evidence. I'm not sure that Section 6 necessarily is appropriate 5 because it's just one version of it versus another version, but 6 there's no impeachment with a prior inconsistent statement. 7 you tell me. 8 9 MS. BETANCOURT: But Government would request you take it out, Your Honor, and would not object to you taking it out. 10 THE COURT: And I'm not making you make a decision right 11 now, Mr. Gamez. 12 witness has been impeached with a prior inconsistent statement, 13 and that's not been the case here. 14 versions of what was said in an interview. 15 mean, I guess that's a major difference in testimony. 16 17 18 19 22 23 24 25 It's just been different More specifically, I Roman Numeral 7 is also again not appropriate, given that there was no refutation witness. Section 9, Roman Numeral Section 9, the voluntariness of statements is not at issue. 20 21 But section Roman Numeral 6 is normally when a MR. GAMEZ: Are we leaving No. 8, Judge, the accomplice THE COURT: Hold on just a second. witness? Yes, that would be appropriate, given Sergio Gonzalez's testimony. Section 10, no testimony was brought out about other similar acts -- or, well, no, because each of the two incidences are Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 35 of 41861 1 charged in the indictment. 2 MS. BETANCOURT: 3 THE COURT: 4 5 6 So Section 10, Roman Numeral 10 on page 6 does not apply. Number -- that was No. 9? Did y'all charge the aiding and abetting? 7 MS. BETANCOURT: 8 THE COURT: 9 That's correct, Your Honor. Yes, Your Honor. Tell me why -- no, I don't think in this case it would be the case because the evidence is that he was 10 the one who made the false statement. 11 application on page 10. 12 you must be convinced that the government has proved that first 13 the offense was committed by some person; that the defendant 14 associated with the criminal venture; and he purposefully 15 participated and he sought by action to make the venture 16 successful." 17 MS. BETANCOURT: Because look at the "For you to find the defendant guilty, Your Honor, his testimony today is that 18 he did, in fact, purchase the weapon, so that then would not be 19 necessary. 20 21 THE COURT: That's only if somebody else did it, and he participated, so I think that that would be out. 22 MR. GAMEZ: Are you taking 9 out, Judge? 23 THE COURT: That would be -- no, is that No. 9? 24 MS. BETANCOURT: 25 THE COURT: That would be 18, Your Honor. It's 18 on page 9. That's the aiding and Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 36 of 41862 1 abetting. 2 by the evidence. 3 That's going to be deleted because it's not supported The knowing -- on page 11, I don't know that the blind eye 4 is appropriate either. 5 was the testimony, so I think that the word "knowingly" would 6 just be the first sentence. 7 8 MS. BETANCOURT: THE COURT: MS. BETANCOURT: THE COURT: COURT CLERK: 24A, Your Honor, and 25A were admitted No, actually the transcripts that have been 24A and B and also 25A, 25 and 25A. 25 was the audio, and 25A is the transcript. 17 THE COURT: 18 COURT CLERK: 19 THE COURT: 20 COURT CLERK: 21 THE COURT: 22 It's admitted are how many, Stella? 15 16 Let me look at that. this afternoon. 13 14 Yes, okay. actually 29. 11 12 Your Honor, the government does have a suggested correction for No. 20. 9 10 It's affirmative acts done by -- or that I thought 29 was also. And 29. Let's go back and verify. Yes, Your Honor. What are the exhibit numbers that are the typewritten transcripts? 23 MS. BETANCOURT: Your Honor, it's my understanding that 24 it's 24A is the transcript, 24 is a video -- I'm sorry, the 25 audio. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 37 of 41863 1 THE COURT: Right. 2 MS. BETANCOURT: And so that would be 24A is the 3 transcript, and 25A is the transcript of the actual Academy 4 purchase. 5 6 7 THE COURT: So then the others that were -- so that would be the only transcripts that they would be looking at? MS. BETANCOURT: In addition to 29A, 29B, and 29C that 8 are already in the charge. 9 THE COURT: 10 Okay. Okay. I think that this is how it works. I think the first sentence of the instruction on the 11 exhibits, the typewritten transcripts would read, "Exhibits 24A, 12 comma, 25A, comma, 29A, comma, 29B, comma and 29C have been 13 identified as typewritten transcripts and partial translations." 14 But when I say "partial" -- well, I guess some of it is in 15 English, some of it in Spanish. 16 Spanish to English of the oral conversations which can be heard 17 on the tape recordings received in evidence as 24, 25, and 29 -- 18 as Exhibits 24, 25 and 29." 19 MS. BETANCOURT: 20 THE COURT: 21 22 23 24 25 Would that be correct? Yes, Your Honor. Okay. But it's -- the tape recordings, I guess the -- it's not tape. Okay. "Partial translations from I would say the audio recordings? So this is how it would read. Oh, well, first of all, you had a suggestion? MS. BETANCOURT: It was it, Your Honor. to make sure that we included 24A and 25A. I just wanted Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 38 of 41864 1 THE COURT: Okay. 2 MR. GAMEZ: Judge, I want to make sure I understood. 3 9, "knowingly" is going to stop on the second line on 4 "accident"? 5 THE COURT: Yes. 6 MR. GAMEZ: Okay. 7 8 9 On It will stop at that period. So we're just going to have two lines, and all the green will be out? THE COURT: Right. So again, the paragraph right now is on page 11 following that's numbered right now Roman Numeral 20, 10 is now going to read, "Exhibits 24A, comma, 25A, comma, 29A, 11 comma, 29B, comma, and 29C have been identified as typewritten 12 transcripts and partial translations from Spanish into English 13 of the oral conversations which can be heard on the audio 14 recordings received in evidence as Exhibits 24, comma, 25, 15 comma, and 29 period. 16 the speakers engaged in the conversations. 17 transcripts for the limited and secondary purpose for aiding you 18 in following the contents of the conversations as you listen to 19 the audio recordings and also to aid you in identifying the 20 speakers. 21 The transcripts also purport to identify I have admitted the "You're also specifically instructed that whether the 22 transcripts correctly or incorrectly reflect the content of the 23 conversations or the identity of the speakers is entirely for 24 you to determine, based upon your own evaluation of the 25 testimony you have heard concerning the preparation of the Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 39 of 41865 1 transcript and from your own examination of the transcripts in 2 relation to your hearing of the audio recordings as the primary 3 evidence of their own content. 4 transcripts are in any respect incorrect or unreliable, you 5 should disregard them to that extent." And if you should determine that 6 Okay. Michael, if you can -- 7 While we're talking, is there anything other than what -- 8 that I have changed or excluded in the draft that we've just 9 been reviewing that you think I should be considering or looking 10 at to include, Ms. Betancourt? 11 MS. BETANCOURT: 12 THE COURT: No, Your Honor. And, Mr. Gamez, as soon as Michael gets 13 through working off of my draft, I want to sit with you and the 14 government on the same side of the table so that you can see 15 what I'm talking about. 16 here; you've been over there. 17 give me back what I've just -- 18 19 20 21 I know it's kind of hard. I've been up So, Michael, as soon as you can While we're waiting also, how much time does the government want? MS. BETANCOURT: Your Honor, we'd ask the Court to consider 45 minutes. 22 THE COURT: Mr. Gamez? 23 MR. GAMEZ: Judge, I believe the most we should be able 24 25 to have, Judge, is 20 minutes. THE COURT: Okay. Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 40 of 41866 1 MR. GAMEZ: And in 20 minutes if we can't size this up, 3 THE COURT: Okay. 4 MR. GAMEZ: -- then you give the other ten minutes of 2 5 Judge -- closing argument. 6 7 THE COURT: MS. BETANCOURT: THE COURT: Your Honor, Mr. Ponce and I will be I will be going first, Your Honor. What kind of warning are you going to be asking for? 12 MS. BETANCOURT: 13 THE COURT: 14 Both sides will have a total of 30 dividing that up, 15 and 15. 10 11 Okay. minutes. 8 9 Let's -- A five minute warning, Your Honor. I'm sorry. And you're going to go first or he is? 15 MS. BETANCOURT: 16 THE COURT: Mr. Ponce, what kind of warning do you want? 17 MR. PONCE: A two minute warning, Your Honor. 18 THE COURT: Two minutes. 19 Mr. Gamez, what kind of a warning would you like? 20 21 Yes, Your Honor, I'll go first. MR. GAMEZ: I'd like a 20 minute polling by each side, Judge, and a two minute warning. 22 THE COURT: So you want a warning when you have -- when 23 you're at 20 minutes remaining or when you've used up 20 24 minutes? 25 MR. GAMEZ: That's a good idea, Judge. 20 minutes -- if Case 1:12-cr-00472 Document 106-5 Filed in TXSD on 01/22/13 Page 41 of 41867 1 the Court will inform me I've used up 20 minutes, I'm happy. 2 3 THE COURT: Okay. So ten and two. In other words, I'll warn you that you have ten minutes remaining. 4 MR. GAMEZ: Yes, Judge. 5 THE COURT: And then another two minute warning? 6 MR. GAMEZ: Yes, Judge. 7 THE COURT: All right then. 8 MS. BETANCOURT: 9 THE COURT: Thank you. Your Honor -- I just want to make sure that y'all have 10 time to review the final draft, and I'll ask for any objections 11 to the draft. 12 final draft, I will hear from you. 13 reviewing it. 14 So when you've had an opportunity to review the MS. BETANCOURT: But wait until -- he's still I had a different question about the 15 witnesses, Your Honor, but we can deal with that. 16 asking now that they've been excused, will the agents be allowed 17 to watch the closing arguments? 18 THE COURT: 19 MS. BETANCOURT: 20 in the room. 21 Agent Cavazos. 22 Yes. They're But not the witnesses who -That's correct. Agent Rora will remain It will be just be Agent Deans, Agent Morrisey and MR. GAMEZ: Judge, may Mr. Pena's family be allowed to 24 THE COURT: Yes, of course. 25 MS. BETANCOURT: 23 come in? Your Honor, just for the Court's Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 1 of 41 868 1 information, Officer Rora also advised me he's scheduled to go 2 in to work at 10:30. 3 we will have someone call in to his supervisor and advise them 4 that he's still here. 5 6 THE COURT: All right. 8 jury instructions? 9 as now proposed? 10 12 Okay. Well, I hope not to have him here by 10:00. 7 11 I've advised him he needs to stay and that Are you ready to address the Court on the final Any objection to the final jury instructions MS. BETANCOURT: The government has no objections, Your Honor. THE COURT: Mr. Gamez, having had an opportunity to 13 review the proposed final draft of the jury instructions, are 14 there any objections from the defendant? 15 MR. GAMEZ: There is no objections, Judge. 16 THE COURT: All right. Then having both sides having a 17 total of 30 minutes to argue, the government dividing their time 18 between 15 and 15; Ms. Betancourt requiring a five minute 19 warning, Mr. Ponce requiring a two minute warning. 20 you're requiring a ten minute and a two minute warning. 21 there's nothing else, we'll ask that the jury be brought in. 22 23 24 25 Mr. Gamez, Then if (Jury enters courtroom) THE COURT: Thank you. Members of the jury: effect, two judges. Please be seated. In any jury trial, there are, in I am one of the judges, and the other is Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 2 of 41 869 1 the jury. 2 what evidence is proper for your consideration. 3 duty at the end of the trial to explain to you the rules of law 4 that you must follow and apply in arriving at your verdict. 5 It is my duty to preside over the trial and to decide It is also my First I will give you some general instructions which apply 6 in every case; for example, instructions about burden of proof 7 and how to judge the believability of witnesses. 8 give you some specific rules of law about this particular case, 9 and finally I will explain to you the procedures you should 10 Then I will follow in your deliberations. 11 You as jurors are the judges of the facts. But in 12 determining what actually happened, that is, in reaching your 13 decision as to the facts, it is your sworn duty to follow all of 14 the rules of law as I explain them to you. 15 disregard or give special attention to any one instruction or to 16 question the wisdom or correctness of any rule I may state to 17 you. 18 opinion as to what the law is or ought to be. 19 You have no right to You must not substitute or follow your own notion or It is your duty to apply the law as I explain it to you 20 regardless of the consequences. 21 your verdict solely upon the evidence without prejudice or 22 sympathy. 23 before being accepted by the parties as jurors, and they have 24 the right to expect nothing less. 25 It is also your duty to base That was the promise you made and the oath you took The indictment or formal charge against the defendant is not Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 3 of 41 870 1 evidence of guilt. 2 to be innocent. 3 his innocence or produce any evidence at all. 4 Indeed, the defendant is presumed by the law The law does not require the defendant to prove The government has the burden of proving the defendant 5 guilty beyond a reasonable doubt; and if it fails to do so, you 6 must acquit the defendant. 7 proof is a strict or heavy burden, it is not necessary that the 8 defendant's guilt be proved beyond all possible doubt. 9 only required that the government's proof exclude any reasonable 10 11 While the government's burden of It is doubt concerning the defendant's guilt. A reasonable doubt is a doubt based upon reason and common 12 sense after careful and impartial consideration of all the 13 evidence in the case. 14 therefore, is proof of such a convincing character that you 15 would be willing to rely and act upon it without hesitation in 16 the most important of your own affairs. 17 Proof beyond a reasonable doubt, As I told you earlier, it is your duty to determine the 18 facts. In doing so, you must consider only the evidence 19 presented during the trial, including the sworn testimony of the 20 witnesses and exhibits. 21 objections or arguments made by the lawyers are not evidence. 22 The function of the lawyers is to point out those things that 23 are most significant or most helpful to their side of the case, 24 and in so doing, to call your attention to certain facts or 25 inferences that might otherwise escape your notice. Remember that any statements, In the Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 4 of 41 871 1 final analysis, however, it is your own recollection and 2 interpretation of the evidence that controls in the case. 3 the lawyers say is not binding upon you. 4 What During the trial, I sustained objections to certain 5 questions. You must disregard those questions entirely. Do not 6 speculate as to what the witness would have said if permitted to 7 answer the question. 8 has been ordered stricken from the record, and you are 9 instructed to disregard this evidence. Also certain testimony or other evidence Do not consider any 10 testimony or other evidence which has been stricken in reaching 11 your decision. 12 admissible evidence and testimony. 13 Your verdict must be based solely on the legally Also do not assume from anything I may have done or said 14 during the trial that I have any opinion concerning any of the 15 issues in this case. 16 law, you should disregard anything I may have said during the 17 trial in arriving at your own findings as to the facts. 18 Except for the instructions to you on the While you should consider only the evidence, you are 19 permitted to draw such reasonable inferences from the testimony 20 and exhibits which you feel are justified in the light of common 21 experience. 22 conclusions that reason and common sense lead you to draw from 23 the facts which have been established by the evidence. 24 considering the evidence, you may make deductions and reach 25 conclusions which reason and common sense lead you to make, and In other words, you may make deductions and reach In Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 5 of 41 872 1 you should not be concerned about whether the evidence is direct 2 or circumstantial. 3 Direct evidence is the testimony of one who asserts actual 4 knowledge of a fact, such as an eyewitness. 5 evidence is proof of a chain of events and circumstances 6 indicating that something is or is not a fact. 7 distinction between the weight you may give to either direct or 8 circumstantial evidence. 9 Circumstantial The law makes no I remind you that it is your job to decide whether the 10 government has the proved the guilt of the defendant beyond a 11 reasonable doubt. 12 evidence. 13 of the evidence as true or accurate. 14 the credibility or believability of each witness and the weight 15 to be given the witness' testimony. 16 job will be making judgments about the testimony of witnesses, 17 including the defendant who testified in this case. 18 decide whether you believe all or any part of what each person 19 had to say and how important that testimony was. 20 In doing so, you must consider all of the This does not mean, however, that you must accept all You are the sole judges of An important part of your You should In making that decision, I suggest that you ask yourself a 21 few questions. Did the person impress you as honest? Did the 22 witness have any particular reason not to tell the truth? 23 the witness have a personal interest in the outcome of the case? 24 Did the witness have any relationship with either the government 25 or the defense? Did Did the witness seem to have a good memory? Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 6 of 41 873 1 Did the witness clearly see or hear the things about which he 2 testified? 3 understand the questions clearly and answer them directly? 4 the witness' testimony differ from the testimony of other 5 witnesses? 6 you determine the accuracy of what each witness said. 7 Did the witness have the opportunity and ability to Did These are a few of the considerations that will help The testimony of the defendant should be weighed and his 8 credibility evaluated in the same way as that of any other 9 witness. Your job is to think about the testimony of each 10 witness you have heard and to decide how much you believe of 11 what each witness had to say. 12 reaching a verdict, do not make any decisions simply because 13 there were more witnesses on one side than on the other. 14 reach a conclusion on a particular point just because there were 15 more witnesses testifying for one side on that point. 16 In making up your mind in Do not The testimony of an alleged accomplice and the testimony of 17 one who provides evidence against a defendant as an informer for 18 pay or for immunity from punishment or for personal advantage or 19 vindication must always be examined and weighed by the jury with 20 greater care and caution than the testimony of ordinary 21 witnesses. 22 testimony has been affected by any of these circumstances or by 23 the witness' interest in the outcome of the case or by prejudice 24 against a defendant or by the benefits that the witness has 25 received financially or as a result of being immunized from You, the jury, must decide whether the witness' Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 7 of 41 874 1 2 prosecution. You should keep in mind that such testimony is always to be 3 received with caution and weighed with great care. 4 never convict any defendant upon the unsupported testimony of 5 such a witness unless you believe that testimony beyond a 6 reasonable doubt. 7 You should You are here to decide whether the government has proved 8 beyond a reasonable doubt that the defendant is guilty of the 9 crimes charged. The defendant is not on trial for any act, 10 conduct or offense not alleged in the indictment. 11 you concerned with the guilt of any other person or persons not 12 on trial as a defendant in this case. 13 If the defendant is found guilty, it will be my duty to 14 decide what the punishment will be. 15 with punishment in any way. 16 consideration or discussion. 17 Neither are You should not be concerned It should not enter your A separate crime is charged in each count of the indictment. 18 The -- each count and the evidence pertaining to it should be 19 considered separately. 20 guilty or not guilty as to one of the crimes charged should not 21 control your verdict as to any other. 22 The fact that you may find the defendant You will note that the indictment charges that the offenses 23 alleged were committed on or about a specified date. The 24 government does not have to prove that the crimes alleged in 25 each count were committed on that exact date so long as the Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 8 of 41 875 1 government proves beyond a reasonable doubt that the defendant 2 committed the crimes on a date reasonably near December 5th, 3 2011, December 19th, 2011, and May 24th, 2012, the dates stated 4 in the indictment. 5 Title 18, United States Code, Section 924(a)(1)(A) makes it 6 a crime to make a false statement in a record that federal law 7 requires a licensed firearms dealer to keep. 8 requires a licensed firearms dealer to maintain a U.S. 9 Department of Justice Bureau of Alcohol, Tobacco, Firearms and Federal law 10 Explosives Form 4473, otherwise known as a firearms transaction 11 record. 12 For you to find the defendant guilty of the crime alleged in 13 Count 1, making a false statement in a firearm record on or 14 about December 5th, 2011, you must be convinced that the 15 government has proved each of the following beyond a reasonable 16 doubt. 17 First, that the defendant made a false statement or 18 representation in the U.S. Department of Justice Bureau of 19 Alcohol, Tobacco, Firearms and Explosives Form 4473 or firearms 20 transaction record to a federally licensed firearms dealer. 21 22 23 And second, that the defendant knew that the statement or representation was false. For you to find the defendant guilty of the crime alleged in 24 Count II, making a false statement in a firearm record on or 25 about December 19th, 2011, you must be convinced that the Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 9 of 41 876 1 government has proved each of the following beyond a reasonable 2 doubt. 3 First, that the defendant made a false statement or 4 representation in the -- in the U.S. Department of Justice 5 Bureau of Alcohol, Tobacco, Firearms and Explosives Form 4473, 6 firearms transaction record, to a federally licensed firearms 7 dealer. 8 9 10 And, second, that the defendant knew that the statement or representation was false. An entry in a record is false if it was untrue when made and 11 the person knew -- making it knew it was untrue. 12 that again. 13 untrue when made and the person making it knew it was untrue. 14 I'm sorry. Let me read An entry in a record is false if it was Title 18, United States Code, Section 1001 makes it a crime 15 for anyone to knowingly and willfully make a false or fraudulent 16 statement in any matter within the jurisdiction of the 17 executive, legislative, or judicial branch of the government of 18 the United States. 19 crime alleged in Count III, making a false statement or 20 representation to a department or agency of the United States, 21 you must be convinced that the government has proved each of the 22 following beyond a reasonable doubt. 23 For you to find the defendant guilty of the First, that the defendant made a false statement to the 24 Federal Bureau of Investigation regarding a matter within its 25 jurisdiction. Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 10 of 41877 1 2 Second, that the defendant made the statement intentionally, knowing that it was false. 3 Third, that the statement was material. 4 And fourth, that the defendant made the false statement for 5 the purpose of misleading the Federal Bureau of Investigation. 6 A statement is material if it has a natural tendency to 7 influence or is capable of influencing a decision of the Federal 8 Bureau of Investigation. 9 Federal Bureau of Investigation was, in fact, misled. 10 It is not necessary to show that the The word "knowingly" as that term has been used from time to 11 time in these instructions means that the act was done 12 voluntarily and intentionally, not because of mistake or 13 accident. 14 Exhibits 24A, 25A, 29A, 29B, and 29C have been identified as 15 typewritten transcripts and partial translations from Spanish 16 into English of the oral conversations which can be heard on the 17 audio recordings received in evidence as Exhibits 24, 25, and 18 29. 19 in the conversations. 20 Transcripts also purport to identify the speakers engaged I have admitted the transcripts for the limited and 21 secondary purpose of aiding you in following the content of the 22 conversations as you listen to the audio recordings and also to 23 aid you in identifying the speakers. 24 instructed that whether the transcripts correctly or incorrectly 25 reflect the content of the conversations or the identity of the You are specifically Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 11 of 41878 1 speakers is entirely for you to determine based upon your own 2 evaluation of the testimony you have heard concerning the 3 preparation of the transcripts and from your own examination of 4 the transcripts in relation to your hearing of the audio 5 recordings as the primary evidence of their own contents. 6 if you should determine that the transcripts are in any respect 7 incorrect or unreliable, you should disregard them to that 8 extent. 9 And To reach a verdict, whether it is guilty or not guilty, all 10 of you must agree. Your verdict must be unanimous on each count 11 of the indictment. Your deliberations will be secret. 12 never have to explain your verdict to anyone. 13 to consult with one another and to deliberate in an effort to 14 reach agreement if you can do so. 15 case for yourself, but only after an impartial consideration of 16 the evidence with your fellow jurors. 17 You will It is your duty Each of you must decide the During your deliberations, do not hesitate to reexamine your 18 own opinions and change your mind if convinced that you were 19 wrong, but do not give up your honest beliefs as to the weight 20 or effect of the evidence solely because of the opinion of your 21 fellow jurors or for the mere purpose of returning a verdict. 22 During your deliberations, you must not communicate with or 23 provide any information to anyone by any means about this case. 24 You may not use any electronic device or media such as the 25 telephone, a cell phone, smart phone, Iphone, Blackberry or Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 12 of 41879 1 computer, the Internet, any Internet service, any text or 2 instant messaging service, any Internet chat room, blog or 3 website such as FaceBook, My Space, LinkedIn, YouTube or Twitter 4 to communicate to anyone any information about this case or to 5 conduct any research about this case until I accept your 6 verdict. 7 phone, correspond with anyone, or electronically communicate 8 with anyone about this case. 9 the jury room with your fellow jurors during your deliberations. 10 In other words, you cannot talk to anyone on the You can only discuss the case in I expect you will inform me as soon as you become aware of 11 another juror's violation of these instructions. 12 use these electronic means to investigate or communicate about 13 the case because it is important that you decide this case based 14 solely on the evidence presented in this courtroom. 15 on the Internet or available through social media might be 16 wrong, incomplete or inaccurate. 17 discuss the case with your fellow jurors during deliberations 18 because they have seen and heard the same evidence you have. 19 our judicial system, it is important that you are not influenced 20 by anything or anyone outside of this courtroom. 21 decision may be based on information known only by you and not 22 your fellow jurors or parties in the case. 23 and adversely impact the judicial process. 24 25 You may not Information You are only permitted to In Otherwise your This would unfairly Remember at all times you are judges, judges of the facts. Your sole duty is to decide whether the government has proved Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 13 of 41880 1 2 the defendant guilty beyond a reasonable doubt. When you go to the jury room, the first thing you should do 3 is select one of your number as your presiding juror who will 4 help guide your deliberations and will speak for you here in the 5 courtroom. 6 A form of verdict has been prepared for your convenience. 7 The presiding juror will write the unanimous answer of the jury 8 in the space provided for each count of the indictment, either 9 guilty or not guilty. At the conclusion of your deliberations, 10 the presiding juror should date and sign the verdict. 11 need to communicate with me during your deliberations, the 12 presiding juror should write the message and give it to the 13 marshal. 14 court -- into the court to answer your message. 15 If you I will either reply in writing or bring you back into Bear in mind that you are never to reveal to any person, not 16 even to the Court, how the jury stands numerically or otherwise 17 on any count of the indictment until after you have reached a 18 unanimous verdict. 19 20 21 22 23 Again, both sides will have a total of 30 minutes to argue. The government will open and close. Ms. Betancourt, you may address the jury. MS. BETANCOURT: May it please the Court, Mr. Gamez. Good evening, ladies and gentlemen. What you can expect 24 from closing argument is for the parties to go over the evidence 25 both from the witnesses you heard here on the witness stand and Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 14 of 41881 1 the exhibits that you have. 2 as the judge has just instructed to you. 3 We'll also go over the law with you And what we expect the evidence in this case to show you is 4 that this defendant was, in fact, in the wrong place at the 5 wrong time, committed two straw purchases in front of federal 6 agents, and then lied about it. 7 The law that the judge has instructed you on is in the jury 8 charge just as she read it. 9 want to point out. There's just a couple of things I No. 1, this concept of reasonable doubt. 10 The judge has instructed you that the government's burden of 11 proof is a strict and heavy burden. 12 necessary the defendant be proved beyond all possible doubt, not 13 beyond a shadow of a doubt, not 100 percent. 14 and gentlemen, it says that you need to use your reason and 15 common sense. 16 necessary the defendant be proved beyond all possible doubt. 17 However, it is not Instead, ladies Use your reason and common sense, and it is not Additionally, ladies and gentlemen, you are allowed to make 18 deductions and reach conclusions. You have heard all of the 19 witnesses. 20 you'll be able to take those exhibits back with you and examine 21 them even more closely. 22 witnesses and those exhibits, to make these deductions and reach 23 conclusions, again, using your common sense based on the facts 24 that you've heard. 25 the witness' testimony and the exhibits. You have seen all of the exhibits. And, in fact, And you're allowed, from those And the facts that you've heard consist of Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 15 of 41882 1 Additionally, the Court has instructed you that you can 2 judge the credibility of the witnesses. And, in fact, the 3 instructions from the judge on the law even tell you to look at: 4 Did the person impress you as honest? 5 particular reason not to tell the truth? 6 personal interest in the outcome of the case? 7 have a relationship with either the government or the defense? 8 Did the witness seem to have a good memory? 9 Ladies and gentlemen, think about that. Did the witness have any Did the witness have a Did the witness Did the witness 10 seem to have a good memory? 11 point directly to the evidence, especially when we're talking 12 about that point, of the defendant, who even when faced with his 13 own words on the tape, response was: 14 And I'll recall your evidence and I don't remember. Did the witness clearly see or hear the things about which 15 he testified? 16 somebody else told him or something else he heard? 17 Or was he testifying about something that Ladies and gentlemen, you heard the evidence from many of 18 the witnesses that they did not know themselves; that they had 19 heard from someone else. 20 defendant's brothers were testifying based on something somebody 21 else had told them. 22 The defendant's witnesses, the Did the witness have an opportunity and ability to 23 understand and clearly answer the questions? And did the 24 witness' testimony differ from the testimony of the other 25 witnesses? Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 16 of 41883 1 Well, obviously, ladies and gentlemen, in this case it did. 2 You have Sergio Gonzalez saying one thing, and you have the 3 defendant, Manuel Pena, saying another. 4 So now let's look. Again, let's keep looking at the jury's 5 instructions, the law that you're supposed to follow, and let's 6 talk about how from the evidence you can resolve that. 7 First of all, for the charge of making a false statement in 8 a firearms transaction, the judge has instructed you on the law. 9 And, ladies and gentlemen, there's not much disagreement between 10 the government and the defense on most of the issues surrounding 11 that purchase. 12 to do, it asks you in order to find the defendant (sic), you 13 must find that he, in fact, on December the 5th filled out this 14 form. 15 If you look at what the law instructs you there Ladies and gentlemen, we're in agreement with that. The 16 defendant admits and he got on the stand and said: Yes, I'm the 17 person on December the 5th, and in the second count, December 18 the 19th, I am the person that, in fact, did buy that firearm. 19 There is no contest about that. 20 the 5th of 2011 and December the 19th of 2011 in the Academy 21 store here in Brownsville, this defendant filled out this Form 22 4473 both times. 23 both times that he was the actual purchaser. 24 about that. 25 only dispute that we have is: We're in agreement on December And he filled it out checking there in 11A There's no dispute So at the end of the day, ladies and gentlemen, the Well, was that a false statement? Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 17 of 41884 1 And then let's look there at the crime involving the false 2 statement to the FBI. 3 contesting. 4 voluntarily waived his rights. 5 No. 28. 6 FBI. 7 statements. 8 9 Again, the defendant -- there's no He talked to the FBI. He talked to the FBI. He You saw that in the Exhibit And he agrees that he talked to Shaun Owen from the The only again contest we have is did he make false So, ladies and gentlemen, the evidence that you need to resolve then is was it a false statement? Well, ladies and 10 gentlemen, let's review the evidence that you have that tells 11 you it's a false statement. 12 No. 1, you have the testimony of Sergio Gonzalez. 13 you that the gun was for me. 14 was for me. 15 He told That when I answered 11A, the gun Now, the defendant would have you believe it's part of this 16 concept of this communal gun purchase. 17 gentlemen, you can look at Exhibit 15 and Exhibit 20 and look at 18 the ATF rules which clearly state in evidence that you cannot 19 communally purchase a gun, because 11A specifically asks the 20 question: 21 it gives a warning in bold: 22 are acquiring the firearm on behalf of another person. 23 Well, ladies and Are you the actual buyer of this firearm? And then You are not the actual buyer if you If you are not the actual buyer, you cannot answer that 24 question with a yes, in bold letters there. But if there's 25 still any confusion, the form under 11A gives an explanation, Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 18 of 41885 1 ladies and gentlemen. Any confusion, it gives the explanation 2 in an example that is exactly the facts of this case. 3 Mr. Smith -- use my pen to help. 4 "Mr. Smith asks Mr. Jones to purchase a firearm for 5 Mr. Smith. 6 Mr. Jones," in bold all capital letters, "instructs the 7 purchaser of this firearm is not the actual transferee or 8 buyer." 9 Mr. Smith gives Mr. Jones the money for the firearm. Ladies and gentlemen, it's there in the ATF form. 10 clear. 11 Congress has set them up for a reason. 12 you on the law, the law as it exists, and this form tells you 13 you must be the person buying the gun. 14 behalf of another. 15 16 17 There's no other way to buy a gun. It's The judge has instructed You cannot buy it on And that's what Sergio Gonzalez said: for my sons. We have those rules. I went and bought it I couldn't buy it for myself. How do you know that Sergio is telling the truth? Well, if 18 he could have, in fact, bought a firearm for himself, he would 19 have bought it. 20 can buy a firearm. 21 did the defendant have to go and buy the firearm? 22 have to happen? 23 The defendant would have you believe: Sure, he Well, then, why didn't he just buy it? Why Why did that You heard the testimony of every one of his brothers. Not a 24 single one of them have ever bought a gun with this defendant. 25 There's no communal purchasing in this family. They buy their Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 19 of 41886 1 own guns. 2 for a friend. 3 what your job is here to do today, is to follow the law based on 4 the facts and the evidence that you heard. 5 They keep their own guns at their house. He broke the law. The receipt. Did a favor He broke the law, and that is Defendant would have you believe this is 6 communal purchase or that he's buying it. But, ladies and 7 gentlemen, the receipt, the receipt on December the 5th, on 8 December the 5th when Sergio Gonzalez had never heard of the 9 FBI, had never heard of ICE OPR, the receipt memorializes the 10 purchase of that day in some very simple words. 11 Chiquin, nombre de Meme." 12 THE INTERPRETER: 13 MS. BETANCOURT: 14 THE COURT: "I bought this gun for my son. It's in You have five minutes and 24 seconds remaining. 17 18 Pistol Chiquin, name of Meme. Meme's name." 15 16 "Pistola MS. BETANCOURT: Thank you, Your Honor. So ladies and gentlemen, as I said, it comes down to who are 19 you going to believe, Sergio Gonzalez or Manuel Pena? 20 talk a little bit about what the defendant would have you 21 believe. 22 So let's He would have you believe that everybody rounded up some 23 cash and bought a gun. And everybody on December the 5th 24 rounded up some cash and bought a gun that never, ever -- all 25 four of those brothers agree, that never involved Sergio Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 20 of 41887 1 Gonzalez. 2 And so what was Sergio doing there? If that's his 3 testimony, it doesn't match up, because what would Sergio need 4 to be there buying a gun for something that he had no interest 5 in? 6 And what are they doing buying a gun on December 5th for the 7 deer lease when the defendant's own brother had already 8 admitted, yeah, I bought that 270. 9 it with his own money, in his own name, and kept it at his own 10 11 I bought it. Rafael bought house. Lots of testimony about wanting the kids to have a gun. 12 Each of the brothers said: 13 learn how to shoot and practice. 14 throw those $300 guns on the ground and do whatever they want to 15 with them, but we want them to have them. 16 It's important. And we're going to let them Well, that's what Sergio Gonzalez wanted. 17 the audio recordings, ladies and gentlemen. 18 thing, but you can see it. 19 those BEST agents saw. 20 gentlemen. 21 somebody else's car -- truck. 22 the same exact thing. 23 We want the kids to You heard it from The words are one You saw what those agents saw, what You have the photos, ladies and What do they see? They see him put the gun in They see him again on the 19th do Sergio and those audio recordings said: 24 got this gun. 25 wants something just the same. You know, Chiquin Now Lalito is having a hard time with it. He My two boys want something just Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 21 of 41888 1 the same. 2 conversations they had on the 6th and 7th and the 8th. 3 guns were not for anyone else other than Sergio Gonzalez, and 4 that's where the straw purchase took place. 5 Boils down to Chiquin and Lalito. That's the Those Additionally, ladies and gentlemen, I think you'll find out 6 that over and over again, the defendant's math just doesn't 7 match up. 8 it up. 9 him to bring it up. This second purchase, everybody agrees Sergio brought Well, how did Sergio bring it up? Because the FBI asked It's completely consistent. Absolutely. 10 Sergio brought it up because that's what the FBI asked him to 11 do. 12 And then their testimony is everybody put in 60 bucks. 13 There were five of us. 14 gentlemen, that's not what happened. 15 money, he got four $100 bills from ICE OPR. 16 communal money. 17 five people. 18 It doesn't match up. 19 That makes $300. Well, ladies and When Manuel Pena got this There was no It's not -- that's not $300, 60 bucks each from That's $300 -- I'm sorry, $400 of ICE OPR's money. And finally, Your Honor, ladies and gentlemen, at the end of 20 the day, again, this defendant would have you believe that not 21 only did he not make the straw purchases, but he didn't lie 22 about it. 23 of Mr. Pena from the stand, he agrees. 24 doesn't hurt him, Shaun Owens is exactly right about. Yes, I 25 told them that Sergio lived in The Border Apartments. Yes, I But if you'll remember very carefully the testimony But everything that Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 22 of 41889 1 told them that Sergio had Mossberg guns. I told them these 2 things. 3 anything to with a lie, all of a sudden, it's: 4 wrong, or I don't recall. Correct, correct, correct, correct. Ah, but if it has Oh, that's 5 Ladies and gentlemen, the jury charge tells you to take that 6 kind of information into account when looking at the credibility 7 of the witnesses. 8 remind you to go back and look at what the agents saw and what 9 they heard in those videos and in those audiotapes and in those But not only that, ladies and gentlemen, I'll 10 photos right in front of them. 11 at the wrong time. 12 And he broke the law in front of those federal agents on two 13 different occasions and then he lied about it. 14 ladies and gentlemen, after your review of the evidence, for you 15 to find the defendant guilty as charged in all three counts. 16 17 18 THE COURT: Defendant was in the wrong place He had the worst luck, but he broke the law. Thank you. Mr. Ponce, you will have a total of 15 minutes and 54 seconds remaining. 19 Mr. Gamez, you may address the jury. 20 Mr. Gamez, do you need a microphone? 21 22 23 24 25 And we ask, MR. GAMEZ: Right here, Judge. I'll do the best I can right here. THE COURT: Okay. If you wish assistance to turn the lecturn around, we can provide that for you. MR. GAMEZ: Yes, Judge. Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 23 of 41890 1 Your Honor, good evening. Ladies and gentlemen of the jury, 2 I thank you. 3 so very difficult to give up your time. 4 There are countries and places that do not have this ability. 5 They do not have this right. 6 right that someone is charged, and that person can say: 7 know what? 8 of my peers. 9 10 It's so very hard to get people to do this. It's I thank you again. They do not have or possess the I want to come to you. I'm innocent. You I want a jury I didn't do it. Just like the judge said, hey, you know, this is a charge, and that charge is an indictment. It's not evidence of guilt. 11 Let me tell you how easy it is. 12 That's what the Court pretty much said. 13 no witnesses for the defendant. 14 and talk in his behalf. 15 the Southern District of Texas is someone makes an accusation. 16 MS. BETANCOURT: It's a one-sided affair. In this case, there's There's no witnesses that help A grand jury, generally speaking, in Your Honor, I'm going to object to this 17 line of questioning. It's outside the scope of the 18 cross-examine -- the closing argument, and there was no 19 testimony about the grand jury. 20 MR. GAMEZ: Jury's voir dire, Your Honor. 21 THE COURT: The objection is sustained. 22 MR. GAMEZ: Well, thank you. Mr. Pena has decided and 23 requested a jury of his peers and asked that the evidence be 24 heard before you-all. 25 Now, may I use that board, Judge? Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 24 of 41891 1 THE COURT: Yes. 2 MR. GAMEZ: Erase what's on there? 3 THE COURT: Yes. 4 MR. GAMEZ: Thank you, Judge. 5 Hold on. What are the sum of the important issues here that I would 6 like for you to respectfully take back with you. 7 your jury charge, and it's going to be as follows: 8 interest, one. 9 my writing is not that good -- witness' memory. 10 Two, relationship of government. And it's in Personal And three -- Now, what am I talking about here when I say when we look at 11 the relationship of -- let's go to personal interest. 12 course, if you're accused of a crime, you have a personal 13 interest. 14 slandered or named or called, or you're looking at something 15 that's very powerful against you, and it's you here now. 16 him against the United States Government. 17 task, okay? 18 19 It's your body. It's you, all right? Now, what do you look at? What are the relationships? This case, I'll tell you how it started. 21 false statement. 22 say a lie. 23 routine. 24 I've received a complaint. 25 lie. You've been What is a false statement? Well, this is how simple it is. I knock on your door and I say: Was that true? It's This is not a simple relationship does Sergio have with the government? 20 Of What Wow. It started with a Some people will Oh, we do it. It's I have a complaint. It started with a Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 25 of 41892 1 Now, you get a guy like Sergio. 2 you saw his demeanor. 3 all right? 4 Sure, he's educated, but It was humble. He didn't have a chance, He knew that he was in trouble. Now, what did he do? What's his relationship to the 5 witness? It's with the government. 6 Either you decide to cooperate, or guess what happens to you? 7 It's in your best interests, ma'am, sir, to cooperate. 8 afraid? 9 wife's a United States citizen. Yes. Afraid of what? It's simple, all right? Well, what do you think? citizens. 11 alien. 12 does a person do? 13 real easy choice, and it's a choice for many. 14 What's going to happen to him? He's a resident That's a no brainer. Flip a coin, him or me? You will look at No. 5. My My kids are United States 10 Think, please. Were you At that time what Well, that was a The evidence of accomplice witness, 15 the testimony of an alleged accomplice and the testimony of one 16 who provides evidence against a defendant as an what? 17 for pay, for immunity. 18 Means you play, you don't pay. 19 personal advantage. 20 mad at you. 21 they're mad at you? 22 He's not here. Informer For -- from punishment. You don't go to jail. For Even says "or vindication" if someone is How many times do people make up charges because I'm not saying that's the case here. MS. BETANCOURT: Your Honor, I object. That is arguing 23 facts outside of evidence. 24 THE COURT: Sustained. 25 MR. GAMEZ: For personal advantage or vindication. Must Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 26 of 41893 1 always be examined and weighed by who? 2 care. 3 caution. Now, you-all, greater care. 4 If I may, Judge? 5 It's telling you caution. By you. With greater That is powerful. Wow. Greater care. 6 you start saying, who's got a reason to lie? 7 Sergio Gonzalez? 8 understand the position he was in. So whenever Him, Manuel, or Look, I'm not saying he's a bad guy. Do you? And I I think you do. 9 THE COURT: All right. 10 MR. GAMEZ: Yes, Judge. 11 THE COURT: -- an attorney's opinion is no -- is not 12 13 14 Mr. Gamez -- appropriate argument. MR. GAMEZ: I'll leave my opinions out, Judge. What it says here, greater care, caution. 15 circumstances that the witness is in. 16 Five, the witness' interest. 17 MS. BETANCOURT: 18 MR. GAMEZ: The prejudice of this witness against the defendants or, here we go, benefits. 20 witness get a benefit? 21 get to stay here with his family? 22 guess what? 23 and they did here. 25 I'm not making this up. Your Honor, I -- 19 24 Consider the Does the accomplice Does he get to keep his card? Yes. I understand. Does he And A government makes and revolves a case around it, But what is reasonable doubt? It is stated as follows: In your charge, a reasonable doubt is based upon reason and common Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 27 of 41894 1 2 3 4 sense after careful and impartial consideration by you. So you will use common sense, and you will have careful and impartial consideration. Proof beyond a reasonable doubt, therefore, is proof of such 5 convincing character that you yourselves, that you would be 6 willing to rely and act upon it without hesitation in the most 7 important of your own affairs. 8 reasonable doubt, therefore, is a proof of such a convincing 9 character that you are willing to rely on that, beyond a In other words, proof beyond a 10 reasonable doubt proof, and act upon it without hesitation in 11 your own most important affairs. 12 Can you rely on this testimony of this witness that is in 13 such convincing character that you would be willing to rely upon 14 it without hesitation in your own most important affairs? 15 Please. 16 Look at that. You decide, no one else, what weight to give that evidence. 17 You decide what relationship has developed. 18 relationship of ten years with Manuel Pena or the relationship 19 now of the government? Think. Is it the Please. 20 Talk about witness' memory? Remember Sergio Gonzalez. 21 Now, what happens in this case is the government goes first, 22 I go second, and the government goes last. 23 many times the guy who throws the first punch wins the fight. 24 Government goes first. 25 In a boxing match, I got to sit through and listen. What's really hard is the government throws the last punch, Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 28 of 41895 1 and I got to sit there and listen. 2 you. 3 respectfully request to take all of the evidence with you to the 4 court -- jury deliberation room, and remember everything that 5 all of us say. 6 case beyond that reasonable doubt. And so many times it's so easy for the jury, and I will 7 8 And they'll speak last to I don't believe the government has proved their THE COURT: Mr. Gamez, your opinion is not relevant. The jury is instructed to disregard the last comment. 9 MR. GAMEZ: In our country, this reasonable doubt has to 10 be met by you, and it's a tough decision, but you do it by 11 looking at the witnesses. 12 go to Sergio brothers. 13 Customs Border Protection officers. 14 some guy. 15 And I'm still on Sergio. And I will Jorge, Roland, Rafael, Customs agents, And you know what? I didn't just bring you Their words, you take with you. What is their incentive to lie? Their brother. Okay. You 16 can consider that too. 17 Patrol. 18 talking about a different set of facts that happened, and that's 19 why we have you. 20 These are Customs officers and a Border You got that, you got FBI. Go figure. They all are So you balance out Customs' agents' testimony, FBI agents' 21 testimonies, and I bring it to you. 22 Patrol, Customs' witnesses, you decide the evidence and the 23 credibility you give FBI agents, and then you take it. 24 to Sergio. 25 And when you have Border You go Would you be willing to take that with your own affairs in Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 29 of 41896 1 making a decision? 2 this is not beyond a preponderance of the evidence; this is 3 beyond a reasonable doubt. 4 Because that's where the balance is. And we talk about that receipt. And it is said it 5 memorializes that the gun was brought by my son. 6 name on it. 7 decide. 8 someone tell her, you know what? 9 10 MS. BETANCOURT: MR. GAMEZ: You Was it there before, or did Put that on. Your Honor, I'm going to object. arguing outside the evidence. 11 It's Meme's Who do you think put that name on there? Did the mother put it on? Now, He's There was no testimony of that. The Court -- Your Honor, I'm asking the 12 Court, the jury to consider all the alternatives of how that 13 name got there, whether the agents told her to put it on to 14 identify a receipt or it's just memorialized as alleged, Judge. 15 THE COURT: Sustained. 16 MR. GAMEZ: I'd ask you to consider, please, the 17 receipt, the name. 18 Chiquinin, I believe. 19 testimony the mother wrote it. 20 she wrote it. 21 identify that receipt? 22 a housewife? 23 own? 24 25 And it just happened to have the name I believe it was said and there was I want you to think, please, why Think why she wrote it. Think, why did she Think, is that a normal thing to do for Think, did someone or did she just do it on her Think, please. MS. BETANCOURT: Your Honor, again he's asking the jury to speculate about -- there's no testimony from the wife or Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 30 of 41897 1 involving anything about what her state of mind would have been 2 or any testimony about what her state of mind wouldn't have 3 been. 4 THE COURT: Overruled. 5 MR. GAMEZ: Please, think of that. It's real important 6 because it's one of the government's pieces of evidence. 7 they say and there's testimony: 8 the wife signed it. 9 Look, here it is. And The mother, Yes, she did. Now, it's also important to consider Sergio. I went over 10 and over on another issue and over. 11 and his address. 12 There was objections not to argue with the witness. 13 wanted to know if he knew when he bought the second rifle, that 14 .22, and when he bought the first rifle, if you'll remember, the 15 brown-handled rifle, and the .22. 16 bought it? 17 Why? His address, his address And I kept arguing and discussing it. All he says: But I Could he tell me when he I couldn't buy it. I couldn't buy it. Now, I needed someone else to buy this new rifle, 270. But 18 finally got the evidence out, he had the address in his driver's 19 license, and it was The Border Apartments. 20 THE COURT: Can't hear you. 21 MR. GAMEZ: Sergio's driver's license did reflect his 22 address. Finally he testified and agreed, it was The Border 23 Apartments. 24 residency alien card. 25 Look, please, at it, and it says that that's not the only proof And it did -- he also had -- has testified, his But he says: I didn't have utilities. Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 31 of 41898 1 you need. 2 please. 3 There were multiple proofs in there. Now, you're going to have to decide. 4 have bought that 270? 5 it? 6 buy it. Or did he say: Look at it, Could he really not Did he really have to go to Manuel to buy Yes, I had Manuel buy it. Yes, I could not He bought it for me. 7 If you would believe that, then you're going to have to 8 disbelieve all the other witnesses, because FBI is going to 9 believe what he said or what he said or what he continued to 10 say. 11 And you're going to believe that Sergio could not have bought 12 that firearm. 13 again, that his wife couldn't buy it either because she had 14 other problems and couldn't buy it. 15 believe that also. 16 went and asked for a second rifle, and it was only for him, and 17 it was only for his son. 18 19 And you're going to disbelieve all the other brothers. And you're going to believe, as he testified THE COURT: You're going to have to Or you're going to have to believe that he You have ten minutes and 23 seconds remaining. 20 MR. GAMEZ: Thank you, Judge. 21 Let's go to Shaun. 22 you've seen so many times. 23 give his name, or did he say his name was Robert Gonzalez and 24 make that name up and produce a false ID? 25 ID, he produced his address, and he produced his information; Let's go to this 4473, which is the form Who's the purchaser? No. Did Manuel He produced his Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 32 of 41899 1 not someone else's, his own. 2 purchaser. 3 If you did, you're certainly not the purchaser. 4 false. 5 And he says he is. And he has to sign that he is the Didn't make up somebody's name. That would be That would be a false statement. Now, if you believe Sergio, no, he always bought it, and he 6 bought it for me because I couldn't buy a firearm. Mr. Smith, 7 in that scenario, would sign his name and buy it for someone 8 else, whatever that scenario is on 11A, but someone didn't 9 falsify the name and falsify an ID on it. They put their name. 10 I can't put anyone's name but my own and buy a firearm and say 11 that I'm the purchaser and I'm not that man or that person. 12 Think, please. 13 all his brothers. 14 This is a very important case. Manuel Pena and Now, an FBI agent gets some facts, makes a deal, and it's 15 done. 16 I want you to think, was it right for him not to have gone to at 17 least talk to other witnesses? 18 right? 19 already arrested and he's already coming here? 20 then. 21 investigation. 22 whether that's the way to do things, whether he did right, 23 whether he did wrong, whether he erred. 24 25 You're arrested. Signs a complaint and you're arrested. Hey, is this true? Is this Oh, but he called him the day before trial after he's Harm is already done. Little late That's not the way to have an That's not the way to do things. You'll decide Oh, I believe the evidence is he bought a -- he told me that he bought a 30-06. Well, think, please. You know how easy it Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 33 of 41900 1 is to go back and check? 2 on that. 3 have gone, says: 4 lied to me. 5 I don't know. I mean, I can't comment But can't -- could FBI have gone real simple, simply I got it here. You did not buy a 30-06. So would Manuel Pena, think, say that, knowing all they're 6 going to do is check? 7 sense? 8 lie because they'll show he has not checked all 4473s. 9 lied. 10 Think. Man, I'm lying. Please. I mean, he'd be caught red handed in a You did not purchase a 30-06. They record. Does that make any Did they record just what they want to record? Did that man record just only who he wanted to record? 12 to the tapes. 13 tapes. 14 please, to Academy and record him? 15 difficult was it to record him on the telephone? 16 Please, it wouldn't have been difficult. 17 That's where I'm going to end up. Listen Listen to the But how difficult was it for him to send Sergio, think, Okay. Not difficult. How Not difficult. These are your rights because you saw a waiver. 18 Manuel is cooperating. 19 you. 20 to talk to you. 21 too. 23 And you Think, please. 11 22 You Here's a waiver. You got a right to a jury. I'm going to talk to I don't want a jury. He's a law enforcement guy, a federal agent I want a lawyer. I don't want to talk to you. say will be held against -- no, I'm talking to you. 24 Okay. 25 Yes. I want You are? Everything I Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 34 of 41901 1 Click. 2 Let's see what you've got to say. 3 Oh, it's not FBI protocol to take a statement. Why? Think. 4 Please. 5 the best factual evidence. 6 that he didn't do that, but I -- not what I believe again, 7 think, please, what would have been the better evidence for you? 8 Think. 9 Let's -- we take recordings of others because that's Well, I agree. It's not your fault Please. Would that have been decisive, a recording of his statement? 10 Would that have been clear by a reasonable doubt, by such 11 evidence that you could decide on matters such as your own? 12 I would respectfully say that he's not guilty. 13 14 MS. BETANCOURT: Your Honor, I'm going to object to this continual interjection of personal opinion. 15 THE COURT: Mr. Gamez -- 16 MR. GAMEZ: I'll rephrase it. 17 THE COURT: -- the Court has instructed you. 18 be the third time. 19 MR. GAMEZ: This will Your opinion is not proper argument. When you look back at the counts, please 20 consider that he's not guilty of Count I, not guilty of Count 21 II, and not guilty of Count III, weighing your evidence. When 22 you get back to the jury deliberation room, please look. Try to 23 listen to some of those tapes. 24 them. 25 They're not very long, some of Can you understand them? Mr. Pena testified: I didn't say that, and some of the Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 35 of 41902 1 words that are there do not reflect what they mean in English or 2 Spanish. 3 instructed that whether the transcripts correctly or incorrectly 4 reflect the content of the conversation or the identity of the 5 speakers is entirely for you to determine based upon your 6 evaluation of the testimony. 7 have heard concerning the preparation of the transcripts and 8 from your own examination of the transcripts in relation to your 9 hearing of the audio recordings as the primary evidence of your But you'll decide because it says here, "You're You have -- for the testimony you 10 own contents. And if you should determine that the transcripts 11 are in any respect incorrect or unreliable, you should disregard 12 them to that extent." 13 THE COURT: Two minutes, 20 seconds. 14 MR. GAMEZ: Please remember the birthday party. 15 brought it up, we need another rifle? 16 say? 17 I want to thank you for your time. THE COURT: 19 seconds remaining. 20 MR. PONCE: 22 What did the brothers Yes, we need another rifle. 18 21 Who Mr. Ponce, you have 15 minutes and 54 Yes, Your Honor. May it please the Court, counsel. Yes, at the party: We need another rifle. We need another 23 rifle. They had already purchased one on December the 5th that 24 wasn't there at the ranch, that hadn't been used to go deer 25 hunting, and they're already talking about another one, that Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 36 of 41903 1 they need another 270? 2 minute. 3 and we haven't used it. 4 Remember the testimony. 5 Why aren't they saying: Hey, wait a We got it on 12/5, on the 5th, and we haven't seen it Why aren't they asking those questions? May I approach over here, Your Honor? 6 THE COURT: Yes. 7 MR. PONCE: Remember the testimony was that they had 8 started talking about needing another weapon sometime before 9 deer season and whatnot, and there was some sense of urgency in 10 that. And yet when we get to December 5th and whatnot, they're 11 talking about getting another weapon? 12 used the first one? 13 it's already in the possession of the FBI. 14 And here's where you use your reason and common sense. When they haven't even And they haven't used the first one because 15 I think he used the permanent marker. 16 November, January, May 2012. 17 18 Think about that. November 15th, 2011, over here. Okay. The jury charge tells you about accomplice. In fact, 19 it's on page 4 about an accomplice. Mr. Gamez read to you part 20 of what -- what that says here, but -- but in the very end, the 21 last paragraph of that says, "You should never convict any 22 defendant upon the unsupported testimony of such a witness 23 unless you believe that testimony beyond a reasonable doubt." 24 In other words, if the accomplice came in here and testified and 25 you believed him beyond a reasonable doubt, then that would be Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 37 of 41904 1 2 sufficient to convict. Let me talk more about that. Well, ask yourself: 3 you believe him beyond a reasonable doubt? 4 that is, well, yes, then -- then Defendant is guilty. 5 Well, did If the answer to But that's not this kind of case because not only do we have 6 the testimony of Sergio Gonzalez, but there's other testimony. 7 In fact, you are asked and the law requires this, that you don't 8 decide this case in a vacuum. 9 with perhaps nothing there, very little there. You don't decide it in a vacuum 10 based on all the evidence that's been presented. 11 evidence that's been presented. 12 You decide it All the Defense counsel said that -- he was asking you about 13 Sergio's address and could he have bought the weapon and that 14 maybe he could have bought the weapon, but that's not the issue. 15 That's not what you're here to decide, whether Sergio could or 16 could not buy the weapon. 17 man over here bought that weapon saying that he was the owner 18 when he was not the owner; he was buying it for Sergio Gonzalez. 19 That's the question. 20 himself or whether the wife could have bought it for him or 21 whether he lived at a certain address or whether Academy would 22 require utility bills or a mortgage statement or whatever. 23 even then on a mortgage statement, if his address is at some 24 other place, who's to say that that mortgage statement didn't 25 have an address where that place is? You're here to decide whether this Not whether Sergio could have bought it It's no guarantee that And Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 38 of 41905 1 2 they would have sold him the weapon. But that's not the issue. There was some questions about Sergio and the weapons he had 3 purchased before, the ones that he had owned, that he owned 4 already when he told the FBI when he had gotten them. 5 time he's being questioned for the very first time, you heard 6 the agents. 7 two years ago or five years ago or something like that. 8 he's being asked these questions, and he's -- and Sergio is 9 responding to these questions when he -- it -- those questions, At the The agents told you that he said he had gotten them Well, 10 those answers have no bearing on what is going to come later. 11 He would have no reason to think about saying: 12 three years ago or I got them five years ago, thinking that, 13 well, he had to say that because if he had said he had gotten 14 them two, three weeks before, that he would have been in any 15 kind of trouble. 16 shop that aren't stolen weapons. 17 perhaps say anything like that to the FBI and make up a story 18 about that. Well, I got them Those are his weapons that he bought in a pawn He would have no reason to 19 The fact that the defendant, in fact, used his name and 20 produced his ID and whatnot on those 4475s, well, that would be 21 expected. 22 Academy is concerned, as far as Academy is concerned, he is the 23 purchaser and owner of the weapons. 24 telling them on this form. 25 telling him that he's the purchaser/owner of those weapons. Why? That would be expected because as far as Because that's what he's He's got to produce his ID if he's Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 39 of 41906 1 Well, made an issue about, well, the -- that one of his 2 brothers said, well, that we had tried -- the agent or we tried 3 to talk to him on Friday before this trial began or on Friday 4 before. 5 Well, you heard his witnesses come here and testify that the 6 attorney talked to them on the day of, the day that they came 7 here to testify. 8 the time since May when they learned that his brother had been 9 arrested, all the way to now to discuss with one another 10 So they've had, along with their brother, all about -- about the case. 11 Brothers have known that since May. There's a question about, well, the best thing would have 12 been to have a recording of the interview and whatnot. 13 what was recorded, it wasn't much, but what was recorded was 14 even disputed by the defendant. 15 never -- these are -- tapes that you have heard here, as you can 16 tell, are not Hollywood quality tapes. 17 happening out there in the real world, when it's happening in 18 the real world, there's no: 19 two. 20 sound right? 21 honking in the background, if there's other people talking in 22 the background, if there's music in the background or other 23 distortions or things like that, that's it. 24 happens. 25 what you have here. Okay. Take four. And, of course, these are Okay. Didn't sound right? Well, Well, when it's It didn't sound right. Take three. No, one shot at it. Okay. Take Didn't If there's a That's the way it That's the way it happens in real life, and that's Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 40 of 41907 1 You were asked in the -- or you were told in the charge 2 that -- and it's on page 2, that you can -- excuse me, page 3, 3 you can make -- you're permitted to draw such reasonable 4 inferences from the testimony and the exhibits as you feel are 5 justified in light of common experience. 6 This is very important. This is very important because 7 you're the fact finders. You're the judges of the facts. 8 this is the law that the judge gives you. 9 there with you. And You'll have it back It says, "You are permitted to draw such 10 reasonable inferences from the testimony and exhibits as you 11 feel are justified in the light of common experience. 12 words, you may make deductions and reach conclusions that reason 13 and common sense lead you to draw from the facts that have been 14 established by the evidence." 15 judge is going to -- well, has instructed you on, and you'll be 16 getting it. 17 Well, what does that mean? That's the law. In other That's what the Let's talk about the evidence. 18 It also says that you're supposed to make this decision without 19 sympathy or prejudice. 20 and what he does. 21 deep -- in the back recesses of your mind think, well, man, he's 22 an agent, and, well -- unfortunately, this is -- the law says 23 you are not to -- sympathy and prejudice play no part in a 24 decision. 25 stand. And you've heard testimony of who he is And -- and that might subconsciously in the It's based on the cold facts as they come from that Case 1:12-cr-00472 Document 106-6 Filed in TXSD on 01/22/13 Page 41 of 41908 1 Let me talk to you about the evidence. Let me talk to you 2 about first what is undisputed, what is not disputed. 3 disputed that the defendant made the representations here as 4 owner because that's -- he told you that himself, but that's 5 undisputed. 6 undisputed, that he made the representations that we say he 7 made. 8 because there were two 4473 forms. 9 Okay. Well, not That's what we presented as the government. That's one. That's And that's where Count I and Count II It's undisputed that he is the one that -- who was -- that 10 put the rifles in the truck on the first occasion on the 5th, 11 because he told you, and even on the second occasion on the 12 19th. 13 what he also said. 14 That's undisputed. That's what we presented, and that's So no dispute about that. There's no dispute about that Defendant got the money from 15 Sergio Gonzalez. 16 the money from Sergio Gonzalez. 17 presented that. 18 through testimony of Sergio, through later the observations made 19 by agents, of the defendant, the receipts, the defendant 20 himself. 21 There's no dispute about that. Physically got There's no dispute. He presented that. We And we presented that It's undisputed also that he gave the receipts to Sergio 22 because Sergio later gave them, provided them to the FBI on the 23 6th and then certainly on the 19th. 24 presented evidence of that, in fact, brought the receipts here, 25 and he himself admitted to that. So that's undisputed. We Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 1 of 11 909 1 So let's then talk about when we look at all the pieces of 2 the puzzle. 3 before the puzzle is complete, you can see a picture. 4 see a picture when you get enough of the pieces. 5 to put 100 percent of the pieces of the puzzle there in order to 6 see what's before you. 7 If you get enough pieces of the puzzle together You can You don't have Well, it tells you that in making this decision, well, you 8 need to apply your reason, your reason, your common sense, your 9 logic. You don't leave that outside when you go to deliberate. 10 You don't leave your reason, your common sense and your logic 11 outside the deliberation room. 12 You take it in there with you. We know the weapon was bought on December the 5th. There 13 are no quality recordings. 14 Sergio -- based on the evidence, Sergio tells the defendant here 15 about buying a second weapon. 16 those audio -- audio or -- and transcripts, 29A -- and like I 17 said, they're not quality, Hollywood quality recordings. 18 there's enough little bits and pieces there where you get to, in 19 fact, know that there's a conversation about Lolito, 20 persistence, something about giving Lolito this Christmas gift, 21 give it to him as a Christmas gift. 22 about when he gets the money. 23 We know that on December the 6th, And, in fact, if you look at But And Sergio saying something In 29B, which is the conversation for the 7th, at least a 24 pit -- like I said, you don't need the whole thing. 25 here and there. You decide what's there. Just look But there's reference Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 2 of 11 910 1 to the son's rifle. 2 piece here and there. 3 Well, there's another little bit, a little In 29C, well, you got him saying: 4 He's got a day off. 5 of saying: 6 just go out there and buy it. 7 and do it. 8 Jorgillo. 9 10 11 Well, tell Jorgillo. Well, why is he telling him that? Hey, look, dude, I know you can buy it. No. He said: Quit bugging me. Instead You know, Go out there Or if I can't make it there, talk to It's his day off. Well, here's where you use your reason and common sense. Where is he telling him that? Why is he telling Sergio that? We go to the purchase of the 19th. We know, based on the 12 testimony presented to you, that the agents gave him $400 in 13 $100 bills. 14 the first part, that there's a portion there where he asks or 15 tells Sergio: 16 Hollywood quality, so you're not going to have something that's 17 already scripted out word for word for word. We know, based on the evidence, that Exhibit 25A, The same as 270? And remember, these are not 18 THE COURT: One minute and 56 seconds. 19 MR. PONCE: Yes, Your Honor. 20 And then 25A, No. 3: Do you want -- that's the defendant 21 asking: 22 Sergio, "Do you want the 270?" 23 Do you want the 270? The receipts. No. Why is the defendant asking Let's talk about the receipts. 24 you saw the receipt here. 25 So what is it that the defendant is trying to say? Well, it's -- You know what's written on the back. Oh, that Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 3 of 11 911 1 they just wrote it, or that the FBI agent just wrote it, or that 2 the wife just wrote it because that's the way the things were 3 going to then pan out later on the 6th, 7th, 8th, 9th and 4 eventually the 19th? 5 No. Common sense tells you also when buying -- when you go out 6 and buy something for someone else, someone wants you to buy 7 something and sends you to a store to buy something, what's 8 common sense when you come back, when that person has given you 9 the money? You return, you give that item back to the person 10 that gave you the money to buy it. 11 receipt. 12 be. 13 You give that person change, whatever change that may What do we have here? The defendant giving Sergio those 14 boxes. 15 giving him the change. 16 that comes out to four. 17 sense, and that's what you have. 18 You give that person the The defendant giving him the receipt. The defendant You put and two and two together and That's common sense. That's common And finally the last thing I want to mention is that if 19 these rifles are needed for hunting season, they're need for 20 hunting season -- 21 MR. PONCE: May I approach the board over here? 22 THE COURT: You got five seconds. 23 MR. PONCE: Yes, Your Honor. 24 25 Why is he not bugging Sergio about the two purchases in January? They need the rifles. Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 4 of 11 912 1 THE COURT: Time. 2 MR. PONCE: May I just conclude this sentence, Your 4 THE COURT: Yes. 5 MR. PONCE: They need these rifles, and he never -- for 3 Honor? 6 that hunting season, and he never asked for them because on 7 May 24th of 2012 is when he finds out that Sergio doesn't have 8 them. 9 And they supposedly needed them here. Thank you, ladies and gentlemen. 10 THE COURT: 11 by my clock, 7:20. 12 deliberations. 13 continue with deliberations or start deliberations this evening 14 or if there's something else that you wish. 15 you. 16 All right. Find him guilty. Members of the jury, it's now, You will now retire to begin your I'm going to leave it to you whether you want to I'll leave it up to But before I do that, I do need to discharge the alternate 17 jurors who I regret that we kept you on this long, but we didn't 18 know whether there might be an emergency. 19 excuse -- such that we had to excuse someone. 20 you're not going to be part of the jury that deliberates, but in 21 spite of that, you have played a very important part in the 22 administration of justice. 23 your employment we'll make sure that you get before you leave. 24 25 If we had to So I'm sorry that So any excuses that you may need for But for the balance of the jury, you will now retire to begin your deliberations. Thank you. Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 5 of 11 913 1 (Jury leaves courtroom) 2 3 THE COURT: All right. Please be seated. A couple of things first. I just wanted to confirm. We 4 haven't talked about it yet, but can those disks be played? 5 CDs, can they be played on any kind of player, or are they 6 proprietary software? 7 MR. PONCE: I don't think that they're proprietary 8 software, Your Honor. 9 available. 10 Or I know that we have our tech person here That's what my understanding is, but I can confirm that within the next minute. 11 THE COURT: Well, it's just that if they -- we have to 12 provide them something in case they want to hear it in the jury 13 room. 14 recordings if there's -- they so desire. 15 Otherwise they'll have to come in to listen to any audio Okay. Also in connection with the witnesses that are still 16 on standby, I don't need to make a record for right now. 17 Barbara, would you stand by? 18 19 20 21 22 23 But, (Discussion off the record.) THE COURT: This is going to be a situation where I do clear the courtroom as well. Marshal service? (Pause.) THE COURT: All right. please ask Mr. Rora to come in? 24 MR. GAMEZ: Judge, wait. 25 (Witness present.) Then, Ms. Betancourt, can you Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 6 of 11 914 1 THE COURT: All right. Yes. 2 Sorry about keeping you this late. 3 commitments. Good afternoon, sir. I know that you've got other 4 But I just need to hear from you what you -- I've been told 5 that you conveyed to Ms. Betancourt or Mr. Ponce sometime today 6 about a conversation you would have had with someone else who 7 was -- had an interest in the outcome of this case. 8 THE WITNESS: 9 THE COURT: 10 Yes, Your Honor. Yes, please. THE WITNESS: Basically what happened was we had broken 11 for lunch, and I was walking downstairs out of the -- out of the 12 building and a saw a co-worker of mine who's a fellow officer, 13 and he approached me. 14 THE COURT: 15 THE WITNESS: 16 THE COURT: 17 THE WITNESS: That person being who? Fred Cardenas. Okay. He approached me and we shook hands and he 18 asked me what I was doing, doing here. I told him I'm here for 19 court because I did a traffic stop on a vehicle. 20 question who was it? 21 asked me about a couple months ago, and he kind of said: 22 don't know who you're talking about. 23 the guy you told me about. 24 and I said, you know, I'm not going to get into it right now 25 because I can't because I'm in court. He went on to And I told him it was a guy that you had Who is the guy? I I said And I told him -- he asked me again, Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 7 of 11 915 1 So we kept walking, and I kind of noticed he was with 2 another crowd of people, and one of the guys is the defendant on 3 trial right now. 4 about, and I don't know if he was trying to get information from 5 me or -- but that was it. 6 that. 7 So I'm pretty sure he knew who I was talking THE COURT: Okay. And we went our separate ways after So have you -- other than whatever 8 you were referring to about a couple of months ago, do you talk 9 to him on a regular basis on -- 10 11 THE WITNESS: Well, I talk to him, Your Honor. Basically hello, what's going on. 12 THE COURT: That's about it. Have you ever talked to -- have y'all ever 13 had a conversation about anybody else other than the person on 14 trial, Manuel Pena? 15 THE WITNESS: 16 THE COURT: No, no, Your Honor. So that would have been the only 17 conversation that he would have had an interest in finding 18 further information about? 19 THE WITNESS: 20 THE COURT: 21 22 23 24 25 Yes, Your Honor. All right. Thank you, sir. excused. THE WITNESS: Thank you, Your Honor. (Witness leaves.) THE COURT: I guess Francisco Cardenas? (Witness enters.) And you're Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 8 of 11 916 1 THE COURT: 2 THE WITNESS: 3 THE COURT: 4 THE WITNESS: 5 THE COURT: Good evening, sir. Good evening, ma'am. Tell me your name, please. Francisco Cardenas, ma'am. All right. I want you to tell me a 6 conversation that you had with the gentleman who just walked out 7 of here, your fellow police officer. 8 9 THE WITNESS: conversation I had? 10 THE COURT: 11 THE WITNESS: 12 15 Yes. During the lunch hour today. During the lunch hour I had a conversation with him, ma'am? 13 14 Oh, my fellow police officer, a THE COURT: Yes. Did you have a conversation with him at all? THE WITNESS: When I walked out as a group with the Pena 16 family, we were walking out for lunch. 17 on where we're going out to lunch. 18 him know that I'm going to go to -- go home, I see Officer Rora. 19 So I used to work with the marshal's office here. 20 was working with them also because I hadn't seen him. 21 here since yesterday, and I hadn't seen officer Rora here. 22 So he waves me down, so I stop. Everybody was discussing When I turned around to let I thought he I've been He walks towards my 23 location, and I asked him: Hey, how you doing? I greeted him. 24 And I asked him what are you doing here? 25 working for the marshal's office, and I expected him to tell me: I thought he was Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 9 of 11 917 1 Oh, I started working here. 2 a court case. 3 officer, I asked him, is it a drug case? 4 laughing and he says no. 5 the case for, and he said, oh, it's for a ticket I gave. 6 But he tells me: And I say okay. Oh, I'm here for Being that he's a canine I said okay. And he just starts And I asked him what's Well, being that when we give tickets, we don't go to 7 federal court, we go to municipal court, I asked him: 8 And then he says: 9 wasn't aware what he was talking about, so I said no. And he 10 said: And I 11 asked him what's the defendant's name? 12 and he said: 13 Yes, a ticket. Well, I can't talk about it. Remember, you asked me? And I said okay. hadn't seen him all day since yesterday. 15 yesterday, ma'am. 16 THE COURT: 17 THE WITNESS: 18 THE COURT: All right. All right. 21 (Court adjourned.) 24 25 I was here since Thank you. Mr. Gamez, you can excuse the You can excuse your witness. All right. 23 I Yes, ma'am. 20 22 And he started laughing, But I wasn't aware that he was in this court himself. witness. I I can't talk about it, and he walked away, ma'am. 14 19 A ticket? Thank you. * * * (End of requested transcript) Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 10 of 11918 1 2 3 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 4 5 Date: January 18, 2013 6 7 /s/________________________ Signature of Court Reporter Barbara Barnard 8 9 10 I N D E X 11 JURY TRIAL 12 AUGUST 17, 2012 13 Discussion regarding Defendant taking the stand 693 14 Defendant rests 858 15 Government closes 858 16 Defendant closes 858 17 Charge conference 859 18 Objections to the charge 868 19 The Court charges the jury 868 20 Government's initial closing argument 880 21 Defendant's closing argument 890 22 Discharging alternate jurors 912 23 Jury deliberates 913 24 25 PAGE Case 1:12-cr-00472 Document 106-7 Filed in TXSD on 01/22/13 Page 11 of 11919 CHRONOLOGICAL INDEX 1 2 DEFENDANT'S WITNESSES: 3 4 5 ROLANDO PENA JORGE PENA SANDRA PENA MANUEL EDUARDO PENA DIR CROSS 634 669 686 706 656 678 689 758 RDIR RCRS V/DIRE 694 6 ALPHABETICAL INDEX 7 8 Name 9 PENA, PENA, PENA, PENA, 10 Page JORGE MANUEL EDUARDO ROLANDO SANDRA 669 706 634 686 11 GOVERNMENT'S EXHIBITS 12 13 NO. 14 24 24A 25 25A 15 16 17 18 19 20 21 22 23 24 25 DESCRIPTION CD Transcript Tape Transcript OFFRD ADMTD 792 792 805 805 793 793 805 805 W/DRAW Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 1 of 7 920 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 JURY VERDICT BEFORE THE HONORABLE HILDA G. TAGLE AUGUST 20, 2012 8 9 VOLUME 6 10 APPEARANCES: 11 For the Plaintiff: MR. OSCAR PONCE Assistant United States Attorney Brownsville, Texas 78520 For the Plaintiff: MS. KAREN BETANCOURT Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 12 13 14 15 16 Brownsville, Texas 78520 17 18 19 20 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 21 District Order of 94-15, United States District Court, Southern Texas. 22 Transcribed by: 23 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 2 of 7 921 1 (Jury enters courtroom) 2 THE COURT: 3 Good morning. Please be seated. Members of the jury, having received your note that you have 4 reached a verdict, I would ask the presiding juror to please 5 provide that verdict form to the clerk of the court. 6 7 Will the defendant please stand for the reading of the verdict? 8 We, the jury, find the defendant, Manuel Eduardo Pena, 9 guilty of the offense charged in Count I, guilty of the offense 10 charged in Count II, and guilty of the offense charged in Count 11 III. Signed the presiding juror. 12 Thank you, sir. 13 Members of the jury, I'm going to request that the clerk of 14 15 Please the seated. the court poll the jury. COURT CLERK: Members of the jury, is the verdict that 16 was read by the Court your verdict? 17 please answer yes or no. 18 THE JUROR: 19 COURT CLERK: 20 THE JUROR: 21 COURT CLERK: 22 THE JUROR: 23 COURT CLERK: 24 THE JUROR: 25 COURT CLERK: As I call your number, Juror No. 1, is this your verdict? Yes. Juror No. 2, is this your verdict? Yes. Juror No. 3, is this your verdict? Yes. Juror No. 4, is this your verdict? Yes. Juror No. 5, is this your verdict? Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 3 of 7 922 1 THE JUROR: 2 COURT CLERK: 3 THE JUROR: 4 COURT CLERK: 5 THE JUROR: 6 COURT CLERK: 7 THE JUROR: 8 COURT CLERK: 9 THE JUROR: 10 COURT CLERK: 11 THE JUROR: 12 COURT CLERK: 13 THE JUROR: 14 COURT CLERK: 15 THE JUROR: 16 COURT CLERK: 17 THE COURT: Yes. Juror No. 6, is this your verdict? Yes. Juror No. 7 is this your verdict? Yes. Juror No. 8, is this your verdict? Yes. Juror No. 9, is this your verdict? Yes. Juror No. 10, is this your verdict? Yes. Juror No. 11, is this your verdict? Yes. And Juror No. 12, is this your verdict? Yes. Thank you. All right. The jury, having been polled, 18 members of the jury, I want to thank you for your service as 19 jurors in this case. 20 the administration of justice. 21 You have played a very important part in I now release you from the instructions given to you before, 22 that being that you are now free to discuss this case if you 23 wish. 24 solely your prerogative. 25 employment you can obtain at the district clerk's office on the But if you do not desire to do so, that will be your -Any excuses that you may need for your Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 4 of 7 923 1 first floor. 2 the jury is now in recess and is excused. 3 Thank you. (Jury leaves courtroom) 4 5 And again, you go with the thanks of the Court, so THE COURT: Thank you. Please be seated. The jury, having returned a verdict of guilty as to each of 6 the three counts, the Court now orders a presentence 7 investigation report to be completed by October 4th, 2012, with 8 opportunity to object thereafter, and then a sentencing 9 hearing -- I'm sorry, with opportunity to object thereafter, and 10 then a final report to be submitted by November 1st, 2012, and a 11 sentencing hearing is scheduled for November 19th, 2012, at 12 1:30. 13 Mr. Gamez, do you make a request on behalf of your client? 14 MR. GAMEZ: Yes, Your Honor. Respectively, my client is 15 a United States citizen, has a family and wife, kids here. He's 16 not a violent offender, Judge, not someone that's at the risk of 17 flight. 18 Respectfully, we would ask that he be allowed to continue on 19 bond. He's not a danger to the community, Judge. He poses no threat to anyone, Judge. 20 THE COURT: Mr. Ponce, the government's position? 21 MR. PONCE: Your Honor, we would ask that the pretrial 22 services officer -- I don't know if they've done this -- present 23 a report to the Court. 24 have no objection. 25 And if that is positive, then we would However, I would point out to the Court that I believe that Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 5 of 7 924 1 the defendant's wife is -- may, in fact, be illegal and may, in 2 fact -- I should say no status and may, in fact, live in Mexico. 3 And I don't know how that will impact the current situation now 4 that he has been convicted. 5 of that just to be certain. 6 THE COURT: 7 dated today. 8 trial date. 9 favorable. And I would ask for a reevaluation All right. The -- I've not gotten a report I got one dated for -- in anticipation of the At that point in time, everything seemed to be But I would ask that that issue be resolved, 10 Mr. Gamez, before I grant this request to continue on bond. 11 know it's complicated, but that's something that you need to 12 sort out with pretrial so that we can be assured that your 13 client -- if your -- if his wife is residing in -- outside the 14 jurisdiction of the Court, that he understand that he is not 15 free to leave the jurisdiction of the Court without permission. 16 MR. GAMEZ: Your Honor, she was downstairs. I She wasn't 17 let up because she doesn't have yet her residency aliency card. 18 I understand from my client and speaking to her that she's 19 already completed all the information needed, and she's just 20 waiting for that particular issue to be resolved. 21 lied for status, and I understand that there is no negative, 22 negativity in the application of her status. 23 she's living here. 24 THE COURT: 25 So she hasn't So she's here, So she's living here and it's -- in other words, what you're saying is that she's in the process of Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 6 of 7 925 1 completing her resident alien status application? 2 MR. GAMEZ: That's absolutely, correct, Judge, from what 3 my client tells me and from what she tells me and from what she 4 told the marshals downstairs. 5 6 THE COURT: She was trying to come up. All right then. Mr. Ponce, is there a reason that you're asking to be heard again? 7 MR. PONCE: No, Your Honor. I just want to be 8 absolutely certain that because she has applied, because she 9 hadn't all these last few years. I don't know when this 10 application went through. 11 means she is now entitled to at least stay here if she is here 12 in the U.S. or if it's just an application status and presumably 13 she's represented that she was a Mexican -- can we just check 14 that out, Your Honor? 15 THE COURT: I don't know if that application Mr. Gamez, that's what I would ask that you 16 do. 17 obligation to have that clarified versus just, you know, from 18 what you understand without more from your client, that being 19 that if he is -- his wife is here and he's -- and there's no 20 crime being committed, because of the condition being that -- 21 that a person who is on bond not associate with people engaged 22 in criminal activity. 23 that's the case in this situation, but I can't have one standard 24 for him and a different standard for everybody else. 25 That's what I was referring to when I said it's your MR. GAMEZ: And I'm not saying that I believe that If it please the Court, I'll have her speak Case 1:12-cr-00472 Document 107 Filed in TXSD on 01/22/13 Page 7 of 7 926 1 to pretrial, Judge. 2 3 THE COURT: All right. Then I'll grant that request as soon as I am assured that that is -- has been vetted. 4 MR. GAMEZ: Yes, Judge. 5 THE COURT: And, Mr. Gamez, in the future when your 6 client stands before the Court, you have to stand with him. 7 can't let him stand by himself. 8 MR. GAMEZ: Yes, Judge. 9 THE COURT: Thank you. 10 * * * 11 (End of requested transcript) 12 13 14 We're in recess. -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 15 16 Date: January 18, 2013 17 18 19 20 21 22 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard You Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 1 of 7 927 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-12-472 ) MANUEL EDUARDO PENA ) __________________________________) 7 8 9 TELEPHONIC CONFERENCE MOTION TO MODIFY CONDITIONS OF BOND PENDING SENTENCING BEFORE THE HONORABLE HILDA G. TAGLE SEPTEMBER 14, 2012 10 VOLUME 7 11 APPEARANCES: 12 For the Plaintiff: MS. DEBORA GERADS Assistant United States Attorney Brownsville, Texas 78520 For the Defendant: MR. ERNESTO GAMEZ Attorney at Law 777 E. Harrison 13 14 15 Brownsville, Texas 78520 16 17 18 19 THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General 20 District Order of 94-15, United States District Court, Southern Texas. 21 Transcribed by: 22 23 24 25 BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)548-2591 Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 2 of 7 928 1 2 COURT CLERK: THE COURT: 4 COURT CLERK: 5 THE COURT: COURT CLERK: 8 THE COURT: 10 11 12 Good morning to everyone. So if everybody Yes, Your Honor. All right. At this time the Court calls Counsel, please announce your name for the record and whom you represent. 14 MR. GAMEZ: 17 Good morning, Judge. Eduardo Pena. MS. GERADS: 16 Thank you, Stella. Cause No. 12-CR-472, the United States of America versus Manuel 13 15 All right. is ready, Stella, for me to call the case for hearing. 7 9 This is Stella over here in Brownsville. 3 6 Good morning. Debra Gerads for the government. Ernesto Gamez, Junior, Your Honor, for Manuel Pena. THE COURT: All right. And your client is present, Mr. Gamez? 18 MR. GAMEZ: Most certainly is, Judge. 19 THE COURT: Just asking since this is being called by 20 telephonic or for purposes of telephonic conference with the 21 permission of the parties. 22 So pending before the Court is an opposed motion to modify 23 conditions of bond pending sentencing. 24 address the Court. 25 MR. GAMEZ: So, Mr. Gamez you may Thank you, Your Honor. Good morning. Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 3 of 7 929 1 One, Judge, we filed this motion that was first premised, 2 Judge, on issues of financial ability. The imposition of an 3 electronic device on his ankle cost him $6.75 per day. 4 additional expense of $200 a month, Judge, was an economic 5 burden to him, his wife and his family, Your Honor. An 6 But since filing this motion, I am happy to say, Judge, 7 Mr. Pena has never been a guy that just sits around and is used 8 to doing nothing. 9 a job that is one of a truck driver, Judge. He has found a job, looked for a job. He has The truck driver 10 job, however, requests that he take an additional driving test 11 because he presently has a commercial license to drive bobcats, 12 but he needs to take a test next week so he can drive an 13 18-wheeler. 14 restricted to the Southern District of Texas. 15 The present restrictions of his bond are that he is His friend got him this job through his boss, and his boss 16 says: 17 the Southern District of Texas from Brownsville to Houston, Your 18 Honor. 19 Fine, Manuel. I'll hire you, and your trips will be in His income will be approximately 1,000 to 1400 a week. 20 will be able to allow him to maintain his family during the 21 pendency of the sentencing which will be in some two, 22 two-and-a-half months, Judge. 23 Since then also good news, Judge. This His wife has received her 24 EAD, which is a change of status, Judge, which means, EAD, that 25 she now has a -- received an employment card from Immigration Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 4 of 7 930 1 which allows her to go to work. 2 Social Security card and her Texas ID card, Judge. 3 She since has filed for a He continues to abide by all the conditions of probation, 4 continues to report. No alcohol. He's a good guy, and he's 5 still -- as I say, his job employment now will be the Southern 6 District of Texas, and there is no opposition from Juan 7 Hernandez, who is present, Judge, from pretrial services. 8 THE COURT: So what is it that you're asking then? 9 MR. GAMEZ: We're asking that he be allowed to have this 10 job, Judge, that allows him to leave Brownsville but to go to 11 work back and forth to Houston, Judge. 12 issue now that was the primary issue of 200 a month will be of 13 major concern, but it was at the onset of filing this motion. 14 THE COURT: I don't believe the So there's nothing for me to -- I mean, 15 you're not asking for me to rule in any respect since he is -- 16 he would be within the Southern District of Texas anyway? 17 MR. GAMEZ: Yes, Your Honor. 18 THE COURT: All right. That's correct. So -- but did -- I don't believe 19 I ordered him to remain in Cameron County, or is that a 20 condition of that bond? 21 MS. GERADS: Your Honor, I believe the condition of the 22 bond is he was allowed to travel to McAllen to his doctor and 23 also to take his son to Driscol Children's Hospital, so he was 24 allowed to travel for limited reasons. 25 not object to him having a job as a truck driver to drive back But the government does Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 5 of 7 931 1 and forth, providing he continues to wear the GPS monitoring 2 bracelet. 3 THE COURT: All right. Then the request to modify the 4 conditions of the bond pending sentencing, specifically the 5 request to -- the oral request to amend the conditions of the 6 bond to allow him to travel within the Southern District of 7 Texas for the purpose of his work as well as for the purpose of 8 medical appointments and any other conditions otherwise ordered 9 is granted. 10 That still -- I hope your client understands that that does 11 not mean that he can travel within the Southern District of 12 Texas for pleasure. 13 be for some kind of -- either his employment or the -- I don't 14 know, you didn't tell me where the test is going to take place. 15 But if it's going to be something outside of Cameron County, he 16 can do that. 17 medical, he's allowed to travel, but that doesn't mean that he 18 can just go anywhere. 19 in lieu of his being in the company of the marshal pending the 20 sentencing, Mr. Gamez. 21 Any travel outside of Cameron County has to Anything such as family-related medical or his own MR. GAMEZ: He is a convicted felon, and so this is Judge, Your Honor, respectively, do you 22 believe that the electronic monitoring device would be 23 necessary? 24 THE COURT: Yes. 25 MR. GAMEZ: All right, Judge. Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 6 of 7 932 1 2 3 COURT CLERK: Judge, additionally he was placed on a curfew, 9:00 to 7:00 on the last time he was here. THE COURT: Okay. All right. Then I'm lifting the 4 condition or eliminating the condition of a curfew for his 5 employment if it's going to be necessary for him to obviously 6 travel overnight or allowing him to -- I mean, I want him to be 7 allowed to do his work without a curfew. 8 9 However, if -- when he is not working, that restriction of a curfew is still in effect. So that when he is not employed or 10 he's not on the road working, he is still to abide by the curfew 11 restricting him to his residence every day during the hours of 12 9:00 p.m. to 7:00 a.m. 13 MR. GAMEZ: Understood, Your Honor. 14 THE COURT: All right. 15 16 Anything else that the Court needs to take up at this time in connection with this motion? COURT CLERK: Judge, he also took the -- he had the 17 urinalysis test this morning, and he -- the results were 18 negative. 19 THE COURT: 20 conditions remain. All right. Thank you very much. 21 COURT CLERK: Thank you, Judge. 22 THE COURT: Thank you so much. 23 MR. GAMEZ: Thank you, Judge. 24 MS. GERADS: 25 THE COURT: Thank you, Judge. Have a good day. All other Case 1:12-cr-00472 Document 108 Filed in TXSD on 01/22/13 Page 7 of 7 933 1 MS. GERADS: You too. 2 (Court adjourned.) 3 * * * 4 (End of requested transcript) 5 6 7 -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 8 9 Date: January 18, 2013 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 1 of 45 THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION * * * * * UNITED STATES OF AMERICA VS. MANUEL EDUARDO PENA * * * * * CRIMINAL NO. B-12-472-1 Brownsville, Texas 2:20 p.m. - 3:43 p.m. November 19, 2012 * * * * * SENTENCING HEARING BEFORE THE HONORABLE HILDA G. TAGLE UNITED STATES DISTRICT JUDGE * * * * * THIS TRANSCRIPT HAS BEEN FURNISHED AT PUBLIC EXPENSE UNDER THE CRIMINAL JUSTICE ACT AND MAY BE USED ONLY AS AUTHORIZED BY COURT ORDER. UNAUTHORIZED REPRODUCTION WILL RESULT IN AN ASSESSMENT AGAINST COUNSEL FOR THE COST OF AN ORIGINAL AND ONE COPY AT THE OFFICIAL RATE. General Order 94-15, United States District Court, Southern District of Texas Proceedings recorded by electronic sound recording Transcript produced by transcription service GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 2 of 45 2 1 APPEARANCES: 2 For the United States: 3 4 5 6 7 8 MR. OSCAR PONCE MS. KAREN BETANCOURT United States Attorney's Office 600 E. Harrison Street, #201 Brownsville, Texas 78520 For Defendant Pena: MR. ERNESTO GAMEZ, JR. Attorney at Law 777 E. Harrison Street Brownsville, Texas 78520 9 U.S. Marshal Service: 10 MATT LESCH 11 U.S. Probation Office: 12 13 14 15 16 17 CECILIA SENTENO RALPH GARCIA Court Clerk: STELLA CAVAZOS Court Interpreter: SANDRA CORTEZ (Present but not needed) 18 Electronic Recorder: 19 DORI LEE NORIEGA 20 21 22 23 24 25 GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 3 of 45 3 1 P R O C E E D I N G S 2 2:20P.M. - NOVEMBER 19, 2012 3 4 THE COURT: Call 12-CR-472, United States of America vs. Manuel Eduardo Pena. 5 What says the Government? 6 MR. PONCE: 7 for the Government. 8 THE COURT: What says the defendant? 9 MR. GAMEZ: Defendant's present, Your Honor. 10 THE COURT: All right, if you'll announce your 11 MR. GAMEZ: Judge. 14 THE COURT: louder. 16 picked up. 17 please. 19 My name is Ernesto Gamez, Jr., We're present and we're ready. 15 18 Ready. name for the record. 12 13 Oscar Ponce and Karen Betancourt Okay, you're going to have to speak The ERO will not tell you if you cannot be So you have to speak in to the microphone, First of all, Mr. Gamez, have you reviewed the Presentence Report with your client? 20 MR. GAMEZ: Yes, Judge. 21 THE COURT: Are there any objections? 22 MR. GAMEZ: None at this time. 23 THE COURT: All right, then first, I'll hear 24 from the Government, there being -- well, the Government 25 having the right to open and close, I'll hear you on GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 4 of 45 4 1 your motion for probation and then -- or anything else 2 you wish to say on behalf of your client, and then I'll 3 allow the Government to conclude. 4 5 Mr. Ponce for the Government. MR. PONCE: Your Honor, we have received the 6 PSI and the recommendation by the Probation Office to 7 this Court. 8 and how the Guidelines were, in fact, calculated, the 9 Advisory Guidelines, we do take issue with what is the While we don't have objections to the PSI, 10 ultimate recommendation to the Court. 11 on the facts of the case, as well as what is reflected 12 in the PSI. 13 We do that based I would ask, as part of the sentencing, 14 that the Court allow us to admit the 302 of the 15 interview of this defendant conducted on May 24th of 16 2012 as Government Sentencing Exhibit No. 1. 17 is a copy that had been previously provided to defense 18 counsel prior to the trial actually beginning, but I 19 want to make some comments about that. 20 THE COURT: Mr. Gamez? 21 MR. GAMEZ: No objection. 22 THE COURT: Admitted. 23 And this Let me read what I've admitted before you speak about it or refer to it. 24 MR. PONCE: Yes, Your Honor. 25 MR. GAMEZ: Objection is, Judge, that we do GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 5 of 45 5 1 not object that would be what the Government would intend 2 to prove. 3 correct. 4 that that would be what the Government would testify to 5 or present as evidence in behalf of the United States. We're not admitting that it's true and We have no objection as to it's admission, 6 [Pause - 2:22 p.m. - 2:33 p.m.] 7 THE COURT: All right, Mr. Ponce. 8 MR. PONCE: Your Honor, the -- prior to the 9 commencement of the trial, we had some issues we 10 discussed with the Court about the defendant and how he 11 happened to be an individual that was already -- at 12 least at the time that this incident, was observed by 13 agents in the parking lot at the Academy -- that he was 14 already under investigation by the agencies regarding 15 drug smuggling and the other inspectors there at the 16 bridge, including him, regarding the smuggling of aliens 17 while they were at the bridge, providing inspection for 18 those people coming through. 19 The individuals that were part of those 20 investigations are the individuals that are mentioned 21 here, at least some of them anyway, on Government 22 Sentencing Exhibit No. 1 that he was questioned about 23 during the time that he was initially apprehended or 24 approached. 25 seen that when he was questioned about the individuals, And the Court has read through this and has GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 6 of 45 6 1 the different individuals, Castanon, Cardenas, Gracia, 2 he essentially says he knows nothing about what these 3 individuals have done. 4 as reflected here on page 4, that there had been 5 multiple crossings where he had allowed Gracia, the 6 other inspector's mother-in-law, to go through his 7 primary lane and then, after going through the lane, 8 canceled 9 Agents at that time knew that, the entry. There is a system that they have where if 10 an agent -- if an inspector, once an individual goes 11 through or a vehicle goes through, cancels it manually, 12 that it's still in a way saved through another program, 13 is retrievable by other individuals that have a 14 different kind of access than the inspector would have. 15 So, while the inspector may cancel an entry into -- by 16 someone through the system, it doesn't get canceled 17 forever so it's never found. 18 investigation, determined that on numerous occasions, he 19 had canceled entries by the brother-in-law. 20 these entries, there were individuals also associated 21 with those crossings. 22 Agents, as part of their In some of When he was questioned, as reflected in 23 paragraph -- excuse me, on page 4 about those multiple 24 entries of Gracia's mother-in-law, and while he was 25 talking to them about different things and whatnot, he GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 7 of 45 7 1 was not responsive to that statement. 2 he even knew that there was a way that other agents 3 could access the system and determine what had been 4 canceled, what had not been canceled by other 5 individuals. 6 I don't know if This Mario Gracia is the one that on that 7 day did, in fact, place a call and that person did, in 8 fact -- that inspector did, in fact, allow someone who 9 was not admissible to come through his lane and into the 10 11 United States, although at the behest of the agents. When this interview took place, the agents 12 had these other investigations that are open and, almost 13 by necessity, since the cat was out of the bag, so to 14 speak, with this defendant and this defendant is close 15 to Castanon, close to the other individual, Pena, close 16 to Mario Gracia, the other inspector, they saw fit to 17 interview those other individuals also at that time 18 because they felt that as soon as they were done with 19 the interview of this defendant, that it wouldn't be too 20 long before the other inspectors were given the heads-up 21 that the agents had questioned this defendant about 22 Castanon, about Gracia, about Pena, the other 23 individuals, Flores. 24 25 And so what they did is they, on that day, tried to coordinate interviews of the different GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 8 of 45 8 1 individuals before they had an opportunity to perhaps 2 contact one another. 3 approached was Mario Gracia, which by then had already 4 allowed his undocumented wife to come through. 5 Mario Gracia, the other inspector, promptly, after that 6 interview -- during that interview or perhaps right at 7 the end of that interview, resigned as an inspector. 8 Ed Sanchez, the other individual that was questioned, 9 also resigned. One of the individuals they And The other inspector, Oscar Flores, was 10 questioned also. 11 individuals said different things or said nothing. 12 Oscar Flores also resigned. 13 And in varying degrees these The individual that's mentioned in this 14 302 with Brownsville PD, the Brownsville PD Officer, 15 Frank Cardenas -- which the Court will recall that he 16 is the individual that placed a call to the other BPD 17 Officer who had made a traffic stop of the defendant's 18 wife to determine, with the working coordination with 19 Immigration officials, and determined that the defendant 20 was in fact -- had in his vehicle his undocumented -- 21 undocumented at that time wife -- Frank Cardenas is an 22 individual who this person, somehow they are contacted, 23 and then Frank Cardenas then called the BPD Officer to 24 try and find out if there was an investigation of him. 25 Well, for that reason, Frank Cardenas was questioned as GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 9 of 45 9 1 part of this case and he promptly resigned. 2 All of these individuals are individuals 3 that are closely associated with the defendant. 4 defendant in his statement said, "Well, I don't really 5 know anything about Castanon" and "I've gone to trips 6 here and there with him to different places, but I paid 7 my way." 8 9 The "I don't know anything about Mario Gracia," yet the information is that time and time again 10 he has allowed Mario Gracia's mother-in-law or vehicles 11 associated with Mario Gracia to go through his lane and 12 cancels the entry. 13 here in the PSI where he may not refer a vehicle and 14 then say, well, he didn't refer it because of this or he 15 didn't refer it because of that, and he may get a 16 reprimand or no reprimand or he may get a suspension or 17 no suspension. 18 In fact, some of those are mentioned But the fact of the matter is that, one, 19 when he -- this is an individual who had an open 20 investigation for quite some time by the agents, by 21 joint Homeland Security and FBI. 22 while the defense may try to present this individual as 23 having a stellar career with Customs, that he has had a 24 series of reprimands and other black marks in his 25 records as reflected in Paragraphs 62, 63, 64, and so The PSI reflects that GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 10 of 45 10 1 forth. 2 occasion for this particular offense, when he is 3 questioned about those weapons, he in fact does not -- 4 does not tell the officers what he tried to tell the -- 5 what he did in fact tell the jury here, that, well, he 6 bought them for hunting and that he had given them to 7 the other individual, Gonzalez. 8 9 And based on that and that on this particular Instead, he told the agents -- back then when he was being interviewed, he was not truthful with 10 them. 11 were his, that he fired them out at the ranch and had 12 shot them, but then that the other person wanted to buy 13 them. 14 true, they had the weapons with them and they knew how 15 those weapons had been acquired. 16 He told them that he had taken them, that they And in the end the agents knew that that wasn't In both those instances, the first 17 instance was a happenstance, as the Court remembers the 18 testimony; agents there just doing surveillance on 19 another case, when they happened to notice this thing 20 that was very peculiar to them. 21 turned out to be an individual who had purchased a 22 weapon under his name, because that's what the 4473 23 shows, and promptly, within a minute after walking out 24 of the store, perhaps even less, delivers it to somebody 25 else. And sure enough, it That's something that caught the agents' GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 11 of 45 11 1 attention. And when they spoke to this other individual 2 who received the weapon, what did he say? 3 this individual money to buy a weapon for him for his 4 son. 5 He had given They do an operation and the same MO 6 occurs, where this individual accepts the money from 7 Gonzalez. 8 Academy and, once again, the first thing he does when he 9 walks out of the Academy is transfer the weapon over to 10 He's at the Academy. He walks out of the someone else. 11 He testified that, well, those weapons 12 were -- or tried to say that those were community 13 weapons and whatnot. 14 individuals in any -- well, first of all, there's no 15 such thing as community ownership of a weapon, but never 16 did those individuals that testified here for him say 17 that if they had each chipped in a certain amount of 18 cash for those weapons and the weapon was bought, why 19 they wouldn't be requesting, "Hey, where's the weapon, 20 where's the weapon? 21 December?" 22 late January during the hunting season, February and so 23 on and so on? 24 the defendant is approached and arrested, and these 25 other individuals who supposedly are community owners of But never did the other Why didn't they request it in late Why didn't they request it early January -- It went until in May, finally, he's -- GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 12 of 45 12 1 the weapon haven't even bothered asking for one weapon 2 or the other weapon for that matter. 3 The evidence the Government submits is 4 clear that he, in fact, tried to mislead the 5 investigators, the FBI Agents and the other agents 6 regarding his straw purchase of those weapons. 7 purchased those two weapons for the purpose of passing 8 them on to another individual, and that is a violation 9 of the law and that's what he was convicted of. 10 He The PSI recommends a sentence that the 11 Government believes is woefully inadequate. 12 Advisory Guideline range is between four to six and -- 13 because it's a hunting weapon, it's a high-powered 14 weapon, enough to bring down deer. 15 situation regarding weapons here and straw purchases in 16 this area. 17 a weapon that, in the hands to somebody else, could 18 easily have gone to Mexico and involved as part of other 19 incidents we've heard about. 20 The I won't go into the The Court is well aware of that. But it is But having said that, the whole purpose of 21 the law is to prevent or keep people from making straw 22 purchases so that they don't fall into the wrong hands. 23 And when people find it so easy to just go ahead and 24 purchase a weapon and pass it to somebody else, 25 especially, especially an individual who should know GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 13 of 45 13 1 better because he is an inspector and does it not once, 2 but does it twice and then later lies about it, and 3 who's part of an open investigation that -- where he has 4 on numerous occasions canceled entries of his friend's 5 mother-in-law when there have been other individuals 6 going through that lane of his, three days on one count 7 or five days on the other count is certainly not -- the 8 Government would argue, is not something that would 9 reflect the seriousness of this type of offense, that 10 would not reflect something that will promote a respect 11 for the law. 12 We believe that under the circumstances 13 certainly, certainly a sentence of three months, four 14 months minimum, would be something that would at least 15 begin to address what the law seeks to address. 16 that is certainly the factors reflected in 3553. 17 that that would be something that would be commensurate 18 with the facts of this case, with this individual in 19 particular, and with the fact that there are -- this 20 individual along with others is part of that 21 investigation that shows that this individual, for 22 whatever reasons, time and time again canceled entries 23 of an individual who he says is, well, just a friend and 24 "I don't know what he does or he's never asked me to do 25 this." GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 And So Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 14 of 45 14 1 But what is very telling -- and I'll end 2 with this for now, Your Honor -- is that at the bottom 3 of page 3, when they're talking about -- 4 THE COURT: On what, page 3 of what? 5 MR. PONCE: Oh, I'm sorry, Your Honor, of the 6 Sentencing 1, which is the exhibit we moved to introduce 7 to the Court. 8 for purposes of this hearing, admit it, but ask that it 9 be sealed because it does contain the names of and 10 And by the way, I would ask the Court to, information concerning other individuals. 11 THE COURT: Ordered sealed. 12 MR. PONCE: The bottom of page 3, where he is 13 being questioned about traveling to Mexico and his 14 associations with Castanon and the other CPBO Officer, 15 Eduardo Sanchez, he denied -- it says at the bottom he 16 denies that Castanon would help Pena's wife's enter 17 illegally. 18 and then he turns around and the next thing he says is, 19 he then stated that "any law enforcement activity 20 against Gracia should wait until tomorrow, that Gracia 21 is cautious over the phone and that a face-to-face meet 22 was more realistic." 23 And they're talking about this person here, Well, if he's talking about Castanon on 24 the one hand and then he turns around and says, "Well, 25 wait a minute, you know, when it comes to Gracia, he's GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 15 of 45 15 1 very cautious and you have to do it face-to-face," well, 2 why is he saying that? 3 and he's the individual that on more than one occasion -- 4 several occasions, in fact -- allows his mother-in-law 5 to go through on those vehicles. 6 He's a close associate of Gracia Based on all that, Your Honor, we would 7 ask that a more appropriate sentence would be, as I 8 mentioned to the Court, something that would be 9 meaningful, something that would fall under the factor 10 of 3553, something that would promote a respect for the 11 law, a sentence of no less than three to four months. 12 THE COURT: Mr. Gamez? 13 MR. GAMEZ: Well, Judge, I thought we didn't 14 have an objection to the PSI. 15 multiple objections. 16 17 18 THE COURT: I guess we do have Okay, well, are you asking for leave to file objections? MR. GAMEZ: Well, Judge, what I'm asking now is 19 allow me to argue his position where he states -- the 20 Government states that the portion of law that this -- 21 the purpose of the law is to prevent a straw purchase, 22 what he's saying that we need a more meaningful 23 punishment. 24 then added outside information, outside considerations 25 for the Court that probably would have been testified by What he did is backtrack the whole case and GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 16 of 45 16 1 2 3 the FBI Agent. THE COURT: Okay. But when you said you want to file objections to the PSR -- 4 MR. GAMEZ: I do not want to file objections. 5 THE COURT: Okay, I'm sorry, I thought that's 6 7 what you said. MR. GAMEZ: I thought the Government had no 8 objections to the PSI. It seems like they do have 9 objections to the PSI in the sense -- in regards, one, 10 Judge, in response that the recommendation by the 11 Probation Officer is inadequate and that the purpose of 12 the law is to prevent straw purchases. 13 The response to that is Mr. Pena was 14 convicted of 2924, Judge. 15 person knowingly making a false statement on a document 16 required to be kept by a licensed firearms dealer. 17 That's 2924(a)(1)(A). 18 statement required to be kept by a licensed dealer. 19 that's in the form 4473, Judge. 20 And 2924(a)(1)(A) is: A Knowingly making a false And Now, this is relevant because there's also 21 922(b)(5) and it says what is required by chapter -- to 22 be kept by a licensed dealer, Judge. 23 name and address to whom the firearm sold or delivered. 24 25 In his record is Now, the Government flips all this around and says "actual buyer". Though the form they have GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 17 of 45 17 1 "actual buyer", 924 does not say "actual buyers". 2 You've got to keep an address of the person who buys it, 3 the name and the age. 4 Now, this is an issue that's been 5 bothering me as far as straw purchases. 6 purchase, under the Gun Control Act of 1968, Judge -- 7 and I know the -- Judge, counsel was saying, Your Honor, 8 would you please look at page 3 of my 302s, page 2, 9 what-have-you. 10 Now, a straw If the Court would respectfully look at 11 page 4 and 5 of my motion, Judge, the same the Court 12 looked at their statement. 13 THE COURT: I've read it. 14 MR. GAMEZ: Okay, page 4 of my motion, Judge, 15 cites the Gun Control Act, and it went to those 16 variations that he made argument to. 17 18 19 THE COURT: Okay, I'm sorry, your Motion for Probation? MR. GAMEZ: That's on the Motion for Acquittal, 20 in Arrest of Judgment, or keeping it as a Motion for 21 Acquittal or Arrest of Judgment. 22 THE COURT: Okay, excuse me, we're here for 23 sentencing. 24 your argument on a Motion for a Judgment of Acquittal. 25 I did not -- I was not prepared to hear MR. GAMEZ: Yes. I'm making that argument that GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 18 of 45 18 1 it's been filed and I'm making that argument in response 2 to a straw purchase. 3 straw purchase. 4 THE COURT: I'm saying that this is not a Okay. You're arguing apples and 5 oranges. What is before the Court is sentencing. I 6 have not scheduled this for argument on a Motion for 7 Acquittal. 8 MR. GAMEZ: Okay, then I'll -- 9 THE COURT: So, you know, I certainly want to 10 give you the opportunity if that's what you wish, but 11 this is not the purpose of this hearing. 12 glad to give you the time to prepare for that argument, 13 but that would also give time for the Government. 14 have not already previously entertained and ruled on the 15 papers on your Motion for Acquittal, then, you know -- 16 17 18 MR. GAMEZ: If I You did, Judge, and the Government has responded to this motion that I filed -THE COURT: Okay, there's two motions you're 19 talking about: 20 for Judgment of Acquittal. 21 referring to? 22 And I'll be Motion for Probation and now a Motion MR. GAMEZ: So which motion are you I've combined -- what the 23 prosecutor did is argue against my Motion for Probation. 24 And in the Motion for Probation, Judge, it clearly said 25 this is supposed to stop straw purchases. GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Even if I'm Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 19 of 45 19 1 not arguing the Motion for Acquittal, I disagree with 2 the Government that it is a straw purchase because the 3 Gun Control Act says this is not a straw purchase if 4 someone is able to -- is eligible to buy a firearm. 5 only does the Gun Control Act intend that to be so, but 6 the Fifth Circuit put together a case where that very 7 argument was made. Not 8 THE COURT: Okay. 9 MR. GAMEZ: So I'm just responding to a straw 10 purchase. 11 okay? 12 citing the law that this was a straw purchase. 13 would ask -- 14 15 18 19 I'm just responding to his comment to the Court THE COURT: That was what he was convicted of, MR. GAMEZ: wasn't. Yes, he was. I'm not saying he Just disagreeing with counsel on that issue. THE COURT: Okay, excuse me, let me recess, but I'd like to visit with counsel in chambers. 20 [2:54 p.m. - Recess begins] 21 [3:06 p.m. - Recess ends] 22 THE COURT: 23 But I Mr. Gamez. 16 17 I'm not arguing the Motion for Acquittal, Thank you. Please be seated. First of all, I note that Mr. Ponce, in 24 your opening statement, you took a total of 14 minutes. 25 You'll have a total of six minutes to close. GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 20 of 45 20 1 And Mr. Gamez, you've already taken up six 2 minutes, so you have an additional 14 minutes. 3 sides will have a total of 20 minutes to argue. 4 just one more time, are you asking orally for motion for 5 leave to file a motion to reconsider the Court's ruling 6 on the judgment -- the Motion for Judgment of Acquittal? 7 MR. GAMEZ: 8 for Acquittal, yes. 9 THE COURT: Both And I have filed a motion on the Motion No, I've already ruled on that 10 motion for acquittal and denied it. I'm asking you, are 11 you asking for leave to file a motion to reconsider the 12 Court's denying your Motion for Judgment of Acquittal? 13 MR. GAMEZ: Respectfully, yes, Judge. 14 THE COURT: Okay. Mr. Ponce, if the Court were 15 to grant leave, is the Government prepared to argue that 16 Motion for -- I guess Motion to Reconsider? 17 MR. PONCE: We would not be opposed for leave 18 to have the Court orally -- as an oral motion. And yes, 19 we would be ready to go forward. 20 be making the arguments that were presented to the Court 21 in written form, Your Honor. 22 THE COURT: We would essentially Okay, then I'll grant the 23 Defendant's oral Motion for Leave to Orally Urge the 24 Motion for Judgment of Acquittal, as well as the Motion 25 for Probation before the Court, but you have a total of GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 21 of 45 21 1 another 14 minutes in which you can argue those motions. 2 MR. GAMEZ: Together? 3 THE COURT: Together. 4 MR. GAMEZ: Okay. Judge, then I'll have my 5 client respectfully, Judge, address the Court on the 6 issue. 7 had a time limit on objections and it had none. 8 the Court granting leave to object, make objections on 9 the PSI when they had no written objections to the PSI? 10 11 First of all, I would object that the Government THE COURT: No. So is I've not heard a Motion for -- a Motion for Leave to File Objections by the Government. 12 MR. GAMEZ: Then I would respectfully, Judge -- 13 I came forward knowing -- recognizing that there was no 14 objection on the PSI. 15 arguments to the Court outside of the PSI that was not 16 presented to the Court or to us. 17 18 With that, Judge, if he may, respectfully -- Mr. Pena be heard -- 19 20 21 So I would object to any THE COURT: Excuse me, are you calling him as a MR. GAMEZ: No, I'm going to ask him to address witness? 22 the Court and explain to you, Your Honor, as he would, 23 on his eight hours of interrogation; that if the 24 Government would be allowed to introduce a witness or 25 give testimony, the FBI Agent will be called, I'm sure GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 22 of 45 22 1 he would probably give that evidence. 2 he may be allowed to respond to that, same as made by 3 counsel. 4 5 THE COURT: Okay. So my client, if If you're going to call him as a witness, he has to be sworn. 6 MR. GAMEZ: Okay, Judge. 7 THE COURT: Sir, please raise your right hand. 8 [Oath administered by the court clerk] 9 All right. Mr. Gamez, do you wish to 10 reconsider this avenue given that that opens your client 11 up to cross-examination by the Government? 12 MR. GAMEZ: I considered that. I would have 13 preferred to give this to the Court and simply be 14 allowed to do the same thing, proffer the evidence, if I 15 may. 16 THE COURT: Okay. Mr. Gamez, if your client 17 testifies, if you call him on direct examination, he'll 18 be subject to cross-examination. 19 20 MR. GAMEZ: Okay, I would withdraw, Judge, the request to allow him to testify, Judge. 21 THE COURT: All right. 22 MR. GAMEZ: I would say the following in 23 response to the 302s, Judge: 24 eight hours in this interrogation in which you have the 25 302s. Mr. Pena was kept for In that time there's a fellow, Customs and Border GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 23 of 45 23 1 Patrol Protection Officer, Mr. Pena was asked during 2 those eight hours to cooperate with him, and he did. 3 made two phone calls to cooperate with the Government, 4 and in those two phone calls he asked to allow -- he was 5 asked tell him to bring your wife over. 6 Mr. Pena's wife was in Matamoros. 7 allowed to make the second phone call and he did so and 8 his wife was, in fact, crossed over. 9 He His wife was -- Finally, he was Gracia said the first time no. Mr. Pena 10 called him back a second time. That's the Border Patrol 11 and Customs Agent guy. 12 says -- Mr. Pena calls him and says, "Hey, she's already 13 on her way." 14 officer, Gracia, crossed -- passed over his wife that 15 was illegal at that time. The second time he calls him and And I believe they hung up and then this 16 So he cooperated with them. 17 exchange, Mr. Pena was told, "We're going to cooperate 18 with you and we're going to tell the Court what a great 19 job you did," and that there would be help to him. 20 was part-- supposed to be a benefit that he received. 21 Surely, it's not a benefit, Judge, but once again 22 they're using it against him. 23 And then in That So he did cooperate. Now, his wife, who's now in the United 24 States, during the process of fixing her paperwork, we 25 have a stay of deportation, who's pregnant, Judge, and GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 24 of 45 24 1 she's here in the United States legally until they 2 determine whether or not she's going to be deported or 3 not. 4 deportation, but we believe that she's here legally and 5 she's going to stay here. So she's pending legal resident alienship or 6 Now, his wife was also cooperating during 7 this time and his wife was even sent to Mexico, to 8 Matamoros. 9 with illegal aliens and it got very bad and very And for whatever reason, there was a deal 10 difficult and her life was threatened and she escaped, 11 from what I understand -- 12 THE COURT: There's not evidence to that 13 effect. 14 that, you'll be allowed to present evidence. 15 statements are not evidence. 16 attorney argument based upon the law and the evidence. 17 If you want to call someone to testify about MR. GAMEZ: Your I hear from you as an Yes, Judge. Also, we believe, 18 Judge, in response to assisting the Government and 19 helping the Government and that it not be used against 20 him, Judge, he cooperated with the Government and did 21 assist the Government. 22 received multiple, numerous letters of commendations 23 from Mr. Pena during his many years as a Border Patrol 24 Agent. 25 And in doing so, the Court has And as a Border Patrol Agent in 2002, he GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 25 of 45 25 1 made multiple -- had multiple seizures. 2 there's some 12 letters of commendations that say Border 3 Patrol -- excuse me, Customs and Border Protection 4 Officer and that's 2002, 2003, 2004, Judge. 5 He's got children here. As you see, He's never been 6 in trouble before. 7 which we'll argue on the Motion for Acquittal. 8 bought a firearm. 9 was purchased for someone else, being a false statement, 10 What he did is an issue, Judge, He He was found guilty and that firearm it is alleged, on a Form 4473. 11 And we are respectfully asking the Court 12 to consider this probation and to stay firm on the fact 13 that there was no objections on either side on the PSI, 14 Judge. We're objecting to additional time. 15 Your Honor, he now has a job. 16 pay him much. 17 job that I believe he starts Monday, he's a truck 18 driver. 19 and his children, Judge. 20 21 It pays him $17 an hour. It doesn't And with that And it will help provide for him and his wife On the Motion for Acquittal, however many minutes I've got left, Judge, my response, if I may -- 22 THE COURT: Go ahead. 23 MR. GAMEZ: -- know when I have two minutes 24 25 left, is as follows: One, I don't believe this was a straw GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 26 of 45 26 1 purchase. 2 gives the intent, that the intent of the act, Judge, was 3 to assist federal and state and local law enforcement 4 officials to fight against crime. 5 to discourage or eliminate private ownership or use of 6 firearms by law-abiding citizens, Judge. 7 I believe the 1968 Gun Control Act, Judge, It was not intended This issue was addressed in the Polk case. 8 In the Polk case you had a purchase, and the Government 9 alleges the very same thing. It's a straw purchase. 10 But the punishment was under 922 and the Court made a 11 statement saying, well, that's 922 and not 924. 12 law's premise on whether it's an oral statement or a 13 written statement or false statements or a false 14 document signed is still under Chapter 44, Judge, of the 15 Act. 16 But the And the Court listened to their argument 17 and said, "Look, we disagree. 18 buyer." 19 Government to show the Court where it says that the law 20 says, the statutes say, the United States Code says that 21 it says actual buyer. 22 purchased, the individual who purchased, or the buyer, 23 Judge. 24 25 You put on their actual Well, there's nowhere and I would challenge the It says simply a person who It's stated in that Polk Fifth Circuit case -- it's a 1997 case, I believe, Judge -- excuse me, GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 27 of 45 27 1 '85 case. 2 says that if a person is eligible to buy a firearm and 3 that person could have bought it himself, then the 4 person who bought it gives his name, address, and age, 5 then he's the buyer and it's not a straw purchase. 6 was intended to stop crime, stop incompetent people, 7 felons, and purposes for illegal use of firearms. 8 was a survey of questions asked by who's a buyer and the 9 people understood "buyer" to mean someone who buys or 10 11 It's a 19, I believe, 97, Judge, where it It There someone who gives money in exchange for something. The Government seeks to insert here the 12 word "actual buyer" in front of -- or buyer -- "actual" 13 in front of "buyer," which was not intended. 14 goes outside the statute. 15 for Acquittal is: 16 not the intent for the Government to change the language 17 of "buyer" to include "actual buyer". 18 19 20 Judge, it Our position on the Motion In that case they said, no, that was And if there's anything you'd like to address the Court on, please inform the Court. THE COURT: Okay, I tell you what, this is -- 21 I'll certainly like to -- I want to hear from your 22 client, Mr. Gamez, but since this is argument on pending 23 motions, as I indicated to you, that the Government will 24 close on this argument. 25 Anything else, legal argument that you GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 28 of 45 28 1 wish to make? 2 MR. GAMEZ: No, Judge. 3 THE COURT: In response? 4 MR. PONCE: Your Honor, at this time we ask the 5 Court to consider our written response filed to the 6 Court previously under, I believe it's Document No. 70 7 for the Defendant's Motions for Acquittal, or in the 8 Alternative for New Trial, where we do, in fact, point 9 out to the Court that this prosecution was brought 10 specifically under 924, which is a statute that 11 requires a person to knowingly make a false statement or 12 representation with respect to information required to 13 be kept in the records of a person that's licensed under 14 this chapter. 15 924 is a separate violation from 922, 16 which is what defense counsel has repeatedly argued 17 before this Court. 18 charge that was presented as evidence, the 924 is a 19 charge that was presented in the jury charge by the 20 Court to the jury, and that is the charge that the jury 21 found the defendant guilty of. 22 And the 924 charge, which is the For the reasons stated in our response, as 23 well as the reasons stated by the Court in its Order 24 denying the defendant's motion, we would ask that this 25 re-urging of the motion by counsel be denied for those GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 29 of 45 29 1 2 3 4 reasons, Your Honor. THE COURT: Any other argument in connection with the Motion for Probation? MR. PONCE: Your Honor, now, the Motion for 5 Probation, I do note that page 2 of his motion lists a -- 6 12 letters of commendation. 7 to the Court that the Court, when looking at these 8 letters of commendation, show that they are from 2002, 9 2003, 2004; and thereafter, no letters of commendation. And I would just point out 10 These are recent events that the defendant has been 11 charged with, and the investigation certainly is not 12 something that goes back to 2002, 2003. 13 in time there are no more letters of commendation. 14 At some point In that same page, under 1.03, where 15 defendant states that he had received numerous 16 Certificates of Achievement for outstanding work and 17 whatnot, some of those, I would just submit to the 18 Court, the -- I don't remember if these were mentioned 19 specifically in the PSI in favor of the defendant, but 20 the recognition for one in August 23rd of '06 is a 21 self-recommendation where an individual recognizes 22 himself and asks that he be recognized. 23 On September 11th of '08, Mario Gracia, 24 which is the other individual that we had talked about 25 here earlier, is the individual that's submitting a GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 30 of 45 30 1 recognition letter or request for him. 2 date, he himself submits a recommendation, a recognition 3 letter for him. 4 And on that same I would submit to the Court, while we see 5 in his motion for probation these things, as well as 6 that he completed certain courses, graduated from 7 certain courses, well, these are the standard courses 8 that different inspectors, if they're going to be 9 working as inspectors, at some point or other in their 10 careers need to complete so that they can continue with 11 their employ and continue trying to be helpful as 12 inspectors with whatever happens to be available there, 13 like the VACIS system, which he references in the 1.05 14 part of his Motion for Probation, which is on page 3. 15 That's our response to that, Your Honor, 16 that we believe, with all due respect to the Probation 17 Department and their recommendation, that in this 18 particular case it is perhaps not adequate. 19 And if the Court sees fit to consider the 20 defendant's motion, well, the recommendation is three 21 days, five days, to run concurrent. 22 Court that in the alternative, that if the Court were to 23 not consider our request of at least three months, four 24 months, that perhaps then the Court consider the 25 probation, but the maximum with perhaps some basis or We would ask the GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 31 of 45 31 1 condition of probation. 2 alternative, Your Honor. But we ask that only in the 3 THE COURT: All right. 4 MR. PONCE: That's it. 5 THE COURT: All right, then I'm going to rule 6 on the Defendant's Motion to Reconsider the Judgment -- 7 the Motion for Judgment of Acquittal. 8 denied. 9 10 That motion is As for probation, sir, is there anything you wish to say at this point in time? 11 DEFENDANT PENA: Yes, Judge. I was going -- 12 he said the letters stopped in 2007, and that's not true 13 because the last one I got was right before this 14 incident. 15 And the training that he's talking about, VACIS, not 16 everybody has it. 17 supervisor because I was on a contraband enforcement 18 team. 19 ask them at work, you know. 20 I was serving as a field training officer. You have to get picked by a I've always been a hard worker and you can still This was an unfortunate incident. In the 21 investigation they had, they had me for eight hours. 22 They were asking me stuff about co-workers. 23 the truth, I don't know anything about them. 24 didn't charge me with it, they didn't charge them with 25 it. I told them They One of the guys they were talking about, Oscar GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 32 of 45 32 1 Flores, is getting his job back because they forced him 2 to resign. 3 attorney like they did for me. 4 They didn't offer him the right to an I'm married, I have five kids to support. 5 I got a job finally. 6 let me go here, the pretrial officer, to take a 7 physical. 8 me a start date of Monday. 9 much I was making, but, you know, my family is kind of 10 11 I've been going to Houston. And finally, they gave me a job. They They gave I'm not going to make as falling apart with all this unfortunate incident. I didn't -- I've never broken the law. I 12 mean, you can see my whole life I've been -- since I was 13 18, I got married when I was real young. 14 as a fireman, Border Patrol Agent. 15 got involved with the wrong crowd that they were looking 16 for other reasons. 17 what they were asking me about. 18 reasons, you know. You know, maybe I And the reason they resigned was not 19 THE COURT: 20 DEFENDANT PENA: 21 THE COURT: They resigned for other Okay, that's not before the Court. Okay. And if you want to testify, you 22 have to be sworn and you'll be subject to 23 cross-examination. 24 25 I went to work DEFENDANT PENA: Okay, no, I don't. I just wanted to tell you that punishment is up to you, but GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 33 of 45 33 1 I've already paid, I think, for -- I've been on this 2 home confinement for six months. 3 know, we're trying to keep it together with help from my 4 mom, my brothers. 5 Like I said, my kids, they're all worried. 6 have one on the way. 7 me probation or whatever, it would really help my family 8 out with this issue. 9 I lost my job. You They're all pitching in, you know. Five kids, I And if you would consider giving That's it. 10 THE COURT: All right. Mr. Pena, what do you 11 consider violating the law if it -- I mean, are you 12 allowed to cancel entries? 13 acceptable? 14 DEFENDANT PENA: Is that something that is No, ma'am. I didn't cancel 15 entries. I spoke with Mr. Ponce when he asked me about 16 it. 17 day, twice a day, not only through my lane, through 18 everybody's lane. 19 readable part and it's messed up. 20 she crosses every day, she gives me her visa, "How you 21 been? 22 not all the information is correct on the entry screen. 23 So I don't know her date of birth, but, you know, I 24 could call her back. 25 it's going to come out. Mario's mother-in-law is legal. She crosses every Her card, her visa has got a machine I know her because Are you bringing back anything?" I swipe it and And I know that if you cancel, I've been working -- I mean, I GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 34 of 45 34 1 was working there for 16 years. 2 I wasn't trying to hide anything. I told 3 the agents I'm not hiding anything, she's not crossing 4 illegal, she crosses every day multiple times a day. 5 mean, and she still does. 6 the other day. THE COURT: 8 DEFENDANT PENA: 9 THE COURT: 11 I just saw her at the mall She's not illegal, she's -- 7 10 I So you didn't do any cancellations? Yes or no? DEFENDANT PENA: cover up anything. When I spoke -- Yes, I did, but it wasn't to It was because -- 12 THE COURT: What was that reason? 13 DEFENDANT PENA: Because you swipe the card and 14 all your information comes out, and then you need to 15 know the birth to close the package or you're not going 16 to be able to close -- it's called a package, a vehicle, 17 a person. 18 close that entry package. 19 name, and if I put an incorrect name, that's not going 20 to -- that's why counsel is - And you have to have both informations to 21 THE COURT: 22 DEFENDANT PENA: 23 24 25 And if you don't have the Don't you know her name? Yeah, her name. I don't know her date of birth. THE COURT: You never asked her her date of birth, I mean, when she's attempting to enter that way? GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 35 of 45 35 1 DEFENDANT PENA: Yeah, because it's on her -- 2 I mean, I don't ask what's your specific date of birth, 3 but it comes out. 4 or fast -- I mean, you're getting a thousand cards, you 5 know, per commitment or 200, it becomes kind of routine. 6 It's a mistake on my part, but it's one that everybody -- 7 you could take a poll and ten -- you know, eight out of 8 ten people have done that cancellation because it's not 9 something uncommon or illegal. 10 11 When you don't swipe it slow enough THE COURT: It's not? I mean, it might be -You're saying it's not? You're allowed to do that? 12 DEFENDANT PENA: You're not allowed by SOP, but 13 the supervisor doesn't bring it up because like it's 14 very common because those cards aren't engraved a 15 hundred percent. 16 inspection, you've got to get these cars out, sometimes 17 you get the information. 18 agents, if there's a doubt about it, we can call her 19 back. 20 crosses multiple times a day. 21 trying to hide. 22 anything illegal. 23 she still crosses to the day. 24 doing something illegal, we'd have to cancel the card, 25 you know. When you're rushing through But like I said, I told the I know Mario, my co-worker, he can call her. She It wasn't anything I was I told them, and she's not doing Obviously, she still has her card, You know, if she was GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 36 of 45 36 1 I mean, I know it looks like it's wrong, 2 but if they would have checked how many times she 3 crossed through my lane and the guy next and then the 4 guy to this side, and how many times for them to cancel 5 it, it would have been equal number because I wasn't 6 doing -- 7 THE COURT: Do you want to tempt fate that way? 8 Would you like for me to recess so that there can be an 9 inquiry made? 10 DEFENDANT PENA: 11 THE COURT: You can check -- Do you want me to do that just so I 12 can -- you can have something to corroborate your 13 position? 14 DEFENDANT PENA: 15 THE COURT: 16 DEFENDANT PENA: If it's going to help me, yes. Well, it's a gamble. Well, then don't do it. I'm 17 just asking you to consider it, Your Honor. 18 want to hurt my position that's already bad. 19 want to get my point across that I wasn't doing anything 20 intentionally, illegal, or with malicious intent or 21 anything. 22 day, and there's -- everybody at that bridge been 23 working together for five or six -- 24 25 I don't I just The lady is legal, she still crosses to the THE COURT: Okay. Also, just understand, I'm sure Mr. Gamez has cautioned you that anything you say GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 37 of 45 37 1 in this tribunal with the intent to mislead the Court 2 can lead to your being prosecuted for that if evidence 3 is shown that what you're saying to me is false. 4 DEFENDANT PENA: So -- I'm not saying anything 5 that's false. She does cross every day through 6 everybody's lane, not my lane or specific lanes. 7 told the agents and they didn't ask me about it until 8 after Mr. Ponce brought it up. 9 throughout their eight-hour interrogation, never told me And I But the agents, 10 about specifically me doing something wrong with this. 11 Which they asked me about the cancellation, I told them, 12 but then they just brushed it off and kept going about 13 other stuff. 14 There's nothing wrong that I did with -- 15 I mean, I violated the policy of I was supposed to stop 16 her, bring her back and type in the name, but it just 17 happens every day, that it's not seen as serious there 18 at the bridge when I was working there as has been 19 brought up here. 20 THE COURT: Okay. I don't know if you want to 21 go into calls made to the officer who stopped you, who 22 testified here, by a friend on the Brownsville PD. 23 Again, when you say "I've done nothing illegal," you 24 know, I just think that part of the problem that gave 25 rise to these incidents is because of the fact that the GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 38 of 45 38 1 line has been blurred for you about what's illegal and 2 what is legal. 3 And, you know, certainly, you have been 4 let go from your job. That's a big punishment right 5 there. 6 income. 7 distress about what's going to happen to you. 8 big punishment. 9 any of that whatsoever. You've had to go all these months without That's certainly punishment. 10 Your family is in That's a You know, I certainly don't minimize But the fact is you're an officer whose 11 records are required in order to have control of the 12 border. 13 you know, it's okay because I'm doing it because it's a 14 friend and, you know, let's just look the other way" 15 kind of thing, is what encourages people, you know, to 16 go down the slippery slope. 17 you say no? 18 You know, this "because of friendship, which, And then at what point do And apparently you didn't say no to 19 Mr. Gonzalez the second time, you know. 20 to mislead the officers, who already knew what the true 21 story was about where those guns were, you know, you can 22 see why it would be difficult for me to believe your 23 version of things, especially since you've been 24 convicted of lying to the officers in that interview. 25 And then trying So, you know, the fact of the matter is GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 39 of 45 39 1 that as much punishment as you have received, you 2 brought it all on yourself. 3 path. 4 cancellations being recorded, that you can't get away 5 from that and you still do it. 6 that, if it's not standard operating procedure, can come 7 back to haunt you and get you in trouble and lose your 8 job for you, you know. 9 that. No one led you down the You had -- you tell me this knowledge about I mean, it's something Again, nobody has made you do You do it because of friendship, because you're 10 in a hurry, because it's convenient. 11 that makes it, you know, what you're doing, be an okay 12 thing for everybody. 13 14 And meanwhile, You know, you've got, let me see, how many brothers are in law enforcement as well? 15 DEFENDANT PENA: 16 THE COURT: Two. You know, I'm sure that that's a 17 big punishment for them as well, or for you to face them 18 and now be a convicted felon, although you're still 19 taking the position you did not commit a crime. 20 But as far as the third count, I mean, 21 that's clear. 22 as far as any legal argument you can make on that third 23 count, you know, they've got -- you got yourself dead to 24 rights on that one. 25 I mean, all three counts are clear. But And again, how does a public respect the GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 40 of 45 40 1 law if the officers who are enforcing the law don't 2 respect the law? 3 know, I always have a -- you know, I've seen so many 4 things and I'm not going to speculate as to these 5 seizures that you were involved in, in interdicting in 6 some way. 7 referring to the information in Paragraph 69 and 70. 8 But, you know, I've also been -- seen in other cases 9 where one car is sent ahead and someone calls, there's a That's what I want to know. And, you I'm not told the role that you played. I'm 10 car loaded coming through, and while the officers are 11 inspecting that vehicle, the one with the real load 12 comes through. 13 So, I mean, how am I supposed to believe 14 that this is, you know, totally without anything else 15 attached to it, all these interdictions. 16 to speculate about that, but for me to totally believe 17 that, you know, everything was on the up and up with 18 these interdictions, you know, I'm given pause as to 19 whether that is -- that was the only thing that was 20 going on. 21 I'm not going So, you know, we all have, as members of 22 an organization that enforces the law, unfortunately, 23 you know, it can be inconvenient, it can be difficult. 24 But if we don't act in a way that's consistent with the 25 role that we play, when we take an oath that we're GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 41 of 45 41 1 going to uphold the Constitution and Laws of the United 2 States, then it's very hard to point the finger at 3 somebody else then when you testify at a trial about 4 what a person did or should have done, when you are 5 doing the same thing as well. 6 I'm going to grant your request for a term 7 of probation. However, I am going to order that you be 8 confined to your home for six months. 9 to work. You'll be allowed However, when you'll have curfew, you will 10 have to notify your probation officer when you are 11 traveling for purposes of your job. 12 custody of your children and if you are in -- have 13 responsibilities of taking them to doctors or school, 14 you will be allowed to do that, but that does not mean 15 that you can deviate and, you know, take them out to a 16 snow cone or an ice cream when that's not part of your 17 responsibilities as a parent. 18 hunting, you can't take them out -- because you're not 19 a -- you're a convicted felon. You don't have the right 20 to possess a firearm any more. So that means that just 21 being around guns can very well subject you to being 22 sanctioned in some way. 23 Since you have You can't take them out Do you understand that? 24 DEFENDANT PENA: 25 THE COURT: Yes, I do, Judge. All right. I now order that a term GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 42 of 45 42 1 of probation of five years as to Counts One, Two and 2 Three to be served concurrently to each other. 3 find that you are indigent for purposes of assessing a 4 fine and therefore waive the imposition of a fine. 5 However, the Court does order a special assessment of 6 $100 as to each one of these counts, for a total of 7 $300, which is ordered paid instanter. 8 9 I also The Court orders other terms of probation that will require that you are not to commit a crime, 10 state, federal or local; that you are not to illegally 11 possess a controlled substance and shall refrain from 12 any unlawful use of a controlled substance; that you're 13 not to possess a firearm, ammunition, destructive 14 device, or other dangerous weapon; that you're to 15 cooperate in the collection of a DNA sample. 16 The Court will order that you perform 25 17 hours of community service to be directed -- as directed 18 by the Probation Officer. 19 Sir, this sentence is pursuant to the 20 Sentencing Reform Act of 1984. 21 this sentence, the Court adopts the findings in the 22 Presentence Report. 23 As justification for You know, the fact is the Government's 24 exhibit only corroborates -- I mean, I didn't take it -- 25 I mean, any of that as relevant conduct, but to me it GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 43 of 45 43 1 just corroborates these inconsistent stories that you 2 were telling the officers at the time of your interview. 3 You know, and whether it's because it was an eight-hour 4 period or, you know, you basically realized that you 5 were in a very bad situation to have all of these people 6 who you knew that were inexplicably able to arrange 7 trips for all of these individuals, and for you to be 8 getting off the hook by just paying $500, I mean, 9 anything like that, and the law enforcement officer, I 10 mean, that is really turning a blind eye. 11 time somebody dangles a trip to Las Vegas or other 12 places like that, as a law enforcement officer, you 13 know, that's when you should have run. 14 is, did it happen? 15 run in the opposite direction? 16 a lot about what your state of mind is as to what's 17 legal and what's not legal. 18 I mean, any But the question And if it happened, why didn't you So that, again, tells me The law does provide that you have a right 19 to appeal the Court's decision and you can do so even 20 though you're indigent, but you must give notice of that 21 intention within 14 days. 22 23 Mr. Ponce? MR. PONCE: Your Honor, may I refer to -- the 24 Probation Officer has made reference in Paragraph 57 to 25 alcohol use by the defendant. It says he consumes 10 to GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 44 of 45 44 1 12 beers three times per week. 2 consider possibly ordering that the defendant abstain 3 from alcohol and perhaps take some alcohol related 4 counseling or classes. 5 available. 6 7 THE COURT: I would ask the Court to I'm not sure exactly what's All right. Did you have something you wanted to say, Mr. Garcia? 8 PROBATION OFFICER GARCIA: Yes, Your Honor. 9 believe Mr. Pena indicated that he was recently fired, 10 and I'm not sure the job is here in Brownsville or out 11 of town. 12 that be with electronic monitoring? I For the purposes of home confinement, will 13 THE COURT: 14 permission to work. 15 I was told last time we were here that he was -- his job 16 was pending, he was getting ready to start, and now I'm 17 told that he's ready -- he's going to be starting on 18 Monday. 19 there's a discrepancy there. 20 working, but he'll be allowed to travel out of his home 21 for the purpose of work or any family related 22 necessities. 23 your family's home. 24 25 Yes. But I want for him to have If he provides you proof -- because So I'm hard-pressed to understand why that But I want him to continue That doesn't mean going to barbecues at That is not a necessity. And as far as the consumption of alcohol, I'm ordering that you're not to consume any alcohol and GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313 Case 1:12-cr-00472 Document 99 Filed in TXSD on 01/21/13 Page 45 of 45 45 1 that you are to be evaluated for consideration of some 2 kind of alcohol counseling. 3 Maybe that's part of what's contributed to your point of 4 view which led to where you are today. 5 That is a lot of alcohol. Anything else? 6 MR. PONCE: No. 7 THE COURT: All right, we're in recess. 8 [3:43 p.m. - Proceedings recessed.] 9 10 C E R T I F I C A T I O N 11 12 I certify that the foregoing is a correct 13 transcript of the electronic sound recording of the 14 proceedings in the above-entitled matter. 15 16 17 /s/ Gwen Reed 18 1-21-13 19 20 21 22 23 24 25 GLR TRANSCRIBERS 9251 Lynne Circle Orange, Texas 77630 * 866-993-1313