Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 1 of 245 IN THE UNITED STATES DISTRICT COURT 1 2 3 4 5 6 SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-13-305 ) EUGENIO PEDRAZA ) __________________________________) 7 8 JURY TRIAL, DAY 1 BEFORE THE HONORABLE ANDREW S. HANEN MARCH 10, 2014 VOLUME 1 9 10 11 12 13 APPEARANCES: 14 For the Government: 15 16 MR. J. P. COONEY MR. BRIAN K. KIDD USDOJ, Criminal Division 1400 New York Ave., N.W., Suite 12100 Washington, D.C. 20005 17 For Deft. Pedraza: MR. LARRY EASTEPP Larry D. Eastepp P.C. 5300 Memorial, Suite 1000 Houston, Texas 77007 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)982-9668 18 19 20 21 22 23 24 25 1 2 Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 2 of 245 1 THE COURT: 2 MR. EASTEPP: 3 THE COURT: 4 versus Pedraza. Yes, Your Honor. The government is ready for trial. MR. EASTEPP: 8 THE COURT: 10 We're here in B-13-305, United States Are we ready to go? 7 9 Be seated. Mr. Pedraza is coming from the outer room. Okay. MR. COONEY: 5 6 All right. We're ready, Your Honor. Okay. They are processing the jurors as we speak, but let's go over a couple preliminaries that I want to get out of the way first. None of the lawyers here have picked a jury in my court. 11 12 Here's how I do it. 13 before I get done with the panel as a whole, I will ask y'all to 14 come up; and if there's some topic or area you want me to cover 15 that I haven't covered, let me know, and I'll consider covering 16 it. 17 I will do all the voir dire. At the end Then I will excuse the panel as a whole, and we will keep 18 them here. And then if there are individual jurors that we need 19 to bring back in, no doubt I will have some. 20 running list of people that I want to bring back in. 21 I'll ask Mr. Cooney if there's anybody he wants to bring back 22 in; and then Mr. Eastepp, anybody you want. 23 in, I usually try to ask the first question or two merely so 24 that they don't know which side asks them to come back in. 25 then y'all -- I'll let you ask them questions, and I'll call on I will keep a And then When they come back But 3 Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 3 of 245 1 2 you. I don't see this as being a real controversial case. And, 3 quite frankly, since most of the actions or inactions took place 4 in McAllen, I don't see there being a lot of knowledge of 5 individual actors. 6 is not a huge place; and, you know, there are extended families 7 that reach up and down the Valley, so we may have some overlap 8 or somebody may actually know someone. 9 proposition, I think -- I don't think we'll have any problems 10 11 Now, there may be some. I mean, the Valley But as a general with jurors. As I told you, it's spring break here. Our spring break 12 seems like it's the coldest week we've had all year. 13 kind of ugly, so I don't think -- you know, we may not have 14 anybody make an excuse for that reason, that I've got spring 15 break with my kids or I've got this trip planned or that trip 16 planned, but I think we will get some of that. 17 All right. And it's The first housekeeping matter, how do you want 18 to refer to the counts? 19 your input on this is, you know, we have Counts 1 and 2 -- and I 20 don't remember the exact numbers of them; but, I mean, we have 21 big gaps in the counts. 22 can find it -- Count 1, Count 2, 4, 6, 10, 11, 12 and 13. 23 can refer to them that way, and we can talk to the jury about 24 that. 25 And the reason I'm asking, soliciting We basically have -- let me see if I And I I mean, it's just kind of confusing. MR. EASTEPP: I would prefer that they stay numbered as Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 4 of 245 4 1 they are, Judge. 2 supersede this indictment if they wanted to clear up any issues. 3 4 5 The government had plenty of opportunity to THE COURT: I don't mind doing it. It's just a housekeeping -MR. COONEY: Your Honor, the fact that counts were 6 dismissed is not a relevant issue for trial, so we would ask 7 that we just number them consecutively, 1 through however many 8 are left. 9 the most sense. I can't remember if it's six or seven, but that makes It will make analytical sense when they get the 10 jury verdict form. And the fact that counts were dismissed are 11 not coming into evidence anyway. 12 government's hope. 13 THE COURT: At least obviously that's the Well, and if I don't do that, Mr. Cooney, 14 what would the government have me tell the jury about why 15 they're numbered this way? 16 MR. COONEY: To not speculate as to why they are 17 numbered that way. I mean, that -- I think it will just cause 18 confusion because they will naturally wonder where's Count 5? 19 Where's Count 8? 20 remain the way they're numbered in the indictment, we would 21 request that the Court give them an instruction whenever they're 22 presented with count numbers here during voir dire and, of 23 course, at the end of the case as to not worry about the fact 24 that things are -- I mean, we can come up with some specific 25 language if we could have a few minutes, but to not speculate as But they should not, but they're -- if they Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 5 of 245 1 2 5 to why there are -THE COURT: All right. Well, I'm going to leave them 3 like they are, even though I agree, I think it may be confusing. 4 But I'll do that at the behest of the defendant. 5 All right. At -- I will do a little preliminary 6 questioning, kind of give them the schedule, kind of see how 7 many people we are. 8 have you introduce the folks at your table and have you -- have 9 you -- then I'll ask you -- you know, of course, I'll ask them Then I will introduce you, Mr. Cooney, and 10 if they know anybody. 11 think is going to be a witness. 12 Then I'll ask you to read your -- who you And then, Mr. Eastepp, I'm going to have you introduce 13 yourself and Mr. Pedraza and who you think are going to be a 14 witness. 15 know, do they know anybody. 16 17 18 19 20 And the whole purpose there, of course, is to ask, you And then -- I mean, after that it's pretty standard. I don't see any -- anything unusual about anything else we'll do. Are there any other preliminaries we'll have to get out of the way? Cristi, how many jurors do we think we may have? 21 COURT CLERK: 22 THE COURT: 55. Okay. We have 55 jurors, and I'll just have 23 them bring them all up, and we'll sit them left to right on the 24 benches there. 25 MR. EASTEPP: First as to voir dire, if I can just ask Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 6 of 245 6 1 that -- I know you're going to be asking the law enforcement 2 questions, do they have -- this is a little unusual, that I also 3 don't want them holding something against a law enforcement 4 officer like the government doesn't, because of Mr. Pedraza's 5 former job; that, you know, they've got an axe to grind because 6 some Customs guy was mean to them when they went through the 7 checkpoint one day so they want to get at him. 8 adapt that question to -- not just for the government's side, 9 but also because of his. 10 THE COURT: So if you could We would ask that you do that. All right. Maybe, Mr. Eastepp, you're more 11 familiar perhaps than Mr. Cooney and Mr. Kidd, but there will be 12 more hands for law enforcement than there will be for anything 13 else because, I mean, we just have that much law enforcement 14 down here. 15 know, not necessarily on the panel, but they'll be related to 16 somebody. 17 a close family member or close friend that's -- that's involved 18 in law enforcement, I mean, if we get a typical jury. 19 be glad to do that. 20 When you throw in Customs and Border Patrol and, you They will be -- you know, almost everybody has either MR. EASTEPP: Next there are some evidentiary issues 21 that -- since we spoke on the phone last. 22 want to do that now or before opening statements or -- 23 THE COURT: So I will I don't know if you Well, I think we have a little time now. 24 Let's -- I have read the defendant's proposed exhibits filed 25 under seal. Mr. Kidd, what's the -- or Mr. Cooney, either one, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 7 of 245 1 whoever is going to reply to those, what's the government's 2 position on those? MR. COONEY: 3 4 First, with respect to the inspection report. 5 THE COURT: 6 MR. COONEY: 7 Certainly, Your Honor. 7 Which one? That's not specific enough. Exhibit 17. The government does not object to the admission of Exhibit 17. 8 THE COURT: 9 MR. COONEY: All right. Exhibit 17 is admitted then. With respect to Exhibit 18, the Ryan 10 report, the government does object to the admission of that 11 report. 12 nor a public record because Mr. Ryan was under no legal 13 obligation to conduct the investigation that he alleges to have 14 conducted, unlike, for example, the inspectors which it was in 15 ordinary activity of the inspection team to engage in that 16 report -- in a investigation or inspection like they did and to 17 report their findings. We contend first that it is neither a business record 18 Also if you contrast the inspection report with the Ryan 19 report, as an example, the inspection report does report largely 20 objective facts which are exactly the type of pieces of 21 information which the two exceptions intend to be admitted, 22 whereas the Ryan report contains his opinions or conclusions 23 based on interviews he alleges to have conducted as well as an 24 interview of the defendant, which raises kind of two other 25 interplaying issues here. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 8 of 245 1 8 First is, frankly, the Ryan report really is lay opinion 2 testimony, which -- so what the defense is attempting to do is 3 to pidgeon hole lay opinion testimony in a business report as 4 opposed to putting the witness up on the stand. 5 But second, it also contains, unlike the inspection report, 6 hearsay upon hearsay. For example, the Ryan report contains a 7 summary of statements that the defendant allegedly made to 8 Mr. Ryan. 9 does not contain specific statements like that. If you contrast that with the inspection report, it We would -- for 10 example, in the inspection report, we would ask for -- if there 11 were witness statements, for example, to be redacted out because 12 it's hearsay upon hearsay. 13 Ryan report are simply hearsay upon hearsay. 14 get his out-of-court statements into the record without 15 presenting them the way the rules otherwise require. THE COURT: 16 17 Mr. Pedraza's statements within the So it's a way to Mr. Eastepp, you want to speak up on that one? MR. EASTEPP: 18 Clearly the Deputy Assistant Inspector 19 General for the Criminal Division is empowered to conduct 20 investigations. 21 does. 22 23 24 25 That's all that an Inspector General's Office THE COURT: Except that they don't normally inspect the inspectors. MR. EASTEPP: They have full power to review their own employees, which is what he -- Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 9 of 245 1 THE COURT: 2 MR. EASTEPP: 3 4 9 Well, that's what 17 is. Well, obviously a little different topic, but -THE COURT: I'm not admitting 18 unless it's proven up. 5 And even if it's proven up, there is hearsay in the hearsay, so 6 I'm not preadmitting 18. 7 here's the other issue. 8 9 If later on it can be proven up -- but The other issue is if I basically admit a report that says -- you know, written by a third person not a party to the 10 case that says: I've looked at this, and Mr. Pedraza didn't do 11 anything wrong. I mean, basically it's a report that addresses 12 the ultimate conclusion of what the jury is supposed to do. 13 14 15 16 Why shouldn't I admit all the FBI reports or whoever that says he -- we've looked at it. MR. KIDD: You took my kind of rebuttal exactly out of my mouth, Your Honor. 17 THE COURT: 18 MR. COONEY: 19 THE COURT: 20 21 22 He's guilty. It would be like admitting a 302. Okay. Or worse. You've got some convincing to do, Mr. Eastepp, before you get me to that stage. What about Mr. Pedraza's evaluations, Exhibit 10? MR. COONEY: So with respect to the evaluations, we 23 don't -- I think the business record argument is correct, so 24 they are business records in that respect. 25 clear from his motion -- the way we read the motion is that they However, what is not Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 10 of 245 10 1 are being offered for the exact purpose that they can't be 2 offered for, which is that -- that on another occasion, he acted 3 well; ergo, he acted well this time; i.e., that he's act -- he 4 acted in conformance with his other good behavior on this 5 particular instance. 6 So to give an analogy, it would be like he's accused in this 7 case of robbing a bank, but the day before he went to an ATM and 8 legally withdrew money. 9 bank the next day? Therefore, why would he have robbed a That's exactly why you -- I mean, you cannot 10 offer your conduct outside of court and then argue in court 11 that: 12 have been good as well. Look, on this day I was good; so on Wednesday, I must THE COURT: 13 Well, Mr. Kidd, let me -- let's talk about 14 this practically. 15 know, I would assume, unless you have information I don't have, 16 whether Mr. Pedraza is going to take the stand or not. 17 is his employment history not going to come into the case? 18 mean, I just can't see trying this whole thing without -- you 19 know, if someone is going to get up and testify -- and I don't 20 know if this is going to happen, but let me give you a 21 hypothetical. 22 And, of course, I don't know and you don't That Mr. Pedraza was a tyrant. But how I He made these people do 23 this. They didn't want to do it, but they were scared to death 24 of him and -- and so even though they knew this was illegal, 25 they shouldn't have done it; they did it anyway. And I'm using Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 11 of 245 11 1 that as an example because we had some testimony like that at 2 the James hearing. 3 How is it not right for Mr. Eastepp to get up on cross and 4 say: 5 here ten years. 6 loved him. 7 mean, how is that not relevant? 8 9 Well, wait a minute. You've got the same guy that's been You know, 2007 he got great reviews. 2008, got great reviews. MR. COONEY: Everybody Everybody loved him. I I think in the illustration that you set forth, Your Honor, your point is well taken. I think there 10 could be specific things in the evaluations that would rebut 11 testimony that the government may proffer, so I think the 12 specific one is the pleading was that he complies with policy. 13 And so, for example, if there are specific tidbits in the 14 personnel files that rebut that testimony, then I think I agree. 15 We are -- we would not object to that coming in. 16 to witnesses being confronted with his evaluations in 17 cross-examination, but him bringing them in in their case may be 18 all right. 19 THE COURT: Here's what I'm going to do. I might object I'm not going 20 to admit them right now, but I guess I'm warning each side to 21 the extent this is an advisory ruling, I can't imagine us going 22 into the trial and throughout this next week and having that not 23 come into evidence. 24 MR. COONEY: 25 concede. I think it's a fair statement. I would I anticipate that there are pieces in the personnel Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 12 of 245 12 1 where -THE COURT: 2 And maybe it's not the report. Maybe it's 3 not exactly what's in Exhibit 10. 4 not being able to ask the witnesses: 5 guy the head of the office. 6 why would you keep him on? 7 not coming into evidence. 8 the -- what it says I think eventually is going to come in. 9 the government is going to kind of paint him as a bad guy, he's 10 got a right to say: I mean, you've made this I mean, if he was this horrible, You know, I'm just -- I can't see it Maybe not the piece of paper, but If Hey, no, I'm not. MR. EASTEPP: 11 But I can't see Mr. Eastepp Likewise, I notified the government over 12 the weekend that I added Mr. Rodriguez's as 10A under the same 13 theory, so I'll accept the same ruling from the Court unless you 14 have a different ruling, but meaning that I'm not allowed to get 15 into -- 16 THE COURT: 17 MR. EASTEPP: 18 THE COURT: 19 MR. EASTEPP: 20 Mr. Rodriguez's employment file? Right. I haven't seen it, but I'll -They look -- they look exactly the same. It's the standard government forms. 21 THE COURT: 22 MR. COONEY: All right. Well, I just -- I mean -- That may be more attenuated. 23 we would have an opportunity to argue. 24 distinction between the defendant and Rodriguez. 25 THE COURT: I would hope I think there's a Rodriguez is now not a defendant. And I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 13 of 245 13 1 assume, given the government's stance here, they're not going to 2 get up and impugn Mr. Rodriguez. MR. EASTEPP: 3 4 I don't know. They are still telling me they're intending to prove he's a co-conspirator. THE COURT: 5 6 Maybe they are. All right. Well, if that's true, that may open the door for that. MR. EASTEPP: 7 Which moves to the next topic. The 8 government has informed me that just as the indictment states, 9 the co-conspirators are -- with Mr. Pedraza are Mr. Rodriguez, 10 Mr. Vargas, and Wayne Ball. They're described under their 11 pseudonyms, Vargas and Ball in the indictment, but that there 12 are no other named co-conspirators. 13 They've withdrawn the exhibits for Mr. Ball's plea because 14 Mr. Ball's counsel has informed both the government and myself 15 that Mr. Ball will not be testifying on behalf of the government 16 or on behalf of the defense; that he is not going to testify for 17 anybody at this point. 18 I bring that up because also now, as I told you when we went 19 over the exhibits, I had gotten their exhibits late the evening 20 before. 21 not a complaint against the government. 22 two statements by Special Agent Healey that he made to Izzard. 23 In particular 7 is essentially his memorandum laying out 24 everything to Izzard. 25 Most of them, no doubt, I had seen before, so that's Healey is not a co-conspirator. But Exhibit 6 and 7 are I think those are clearly Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 14 of 245 14 1 hearsay, and I now object to 6 and 7. 2 government earlier of this a few days ago or a couple of days 3 ago of this objection. 4 5 6 7 MR. COONEY: And I notified the And, Your Honor, we are prepared to take those exhibits as they come at trial. THE COURT: Okay. All right. Well, to the extent that I have already admitted them, I'm unadmitting them. 8 MR. COONEY: 9 THE COURT: No objection to that. All right. That's 6 and 7. Email from 10 Healey to Izzard, and then email from Healey to Izzard with 11 attachment. 12 MR. COONEY: I don't mean to say that the government may 13 not attempt to lay a foundation at some point during the trial, 14 but we're prepared to take it as it comes. 15 16 THE COURT: MR. COONEY: 18 THE COURT: 20 21 I understand. I'm assuming we're going to have Healey testify. 17 19 I understand. I anticipate that will happen, Your Honor. Which may moot this. He may testify to what's in the email, so it won't matter. All right. Any other preliminaries we need to get out of the way? 22 MR. EASTEPP: 23 MR. COONEY: I think that's all I had. I think the last issue in the motion were 24 the email communications, and I think we're just taking those as 25 they come at trial. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 15 of 245 15 MR. EASTEPP: 1 There's a series -- you know, as you know 2 from the long hearings we had about the computer evidence, we 3 have a ton of emails. 4 lot. 5 not a lot compared to the hundreds and hundreds and hundreds 6 that we have. 7 either impeachment or to show -- fill in more of the story under 8 optional completeness or whatever, I intend to do that 9 consistent with the rules. I've printed off a lot of them. I say a Maybe 20, somewhere in that range, so it's really maybe That if they're relevant on cross-examination for I think all of them the government 10 is aware of. I know a whole series of them with Vargas he was 11 questioned about anyway by the agent, so it's not going to be a 12 shock to the agent -- I mean to the government. THE COURT: 13 As long as you don't flash or quote from a 14 document that's not in evidence in front of the jury. 15 if he says on the stand that black is black and you got an email 16 where he says black is white, my attitude on that is have at 17 him. 18 MR. COONEY: I mean, That's what we mean by take it as it comes. 19 We just don't want anything published to the jury that's not 20 admitted yet. That's all. 21 THE COURT: 22 MR. COONEY: Okay. And if I may just add one last thing on 23 exhibits, Your Honor. We have -- we did add some exhibits, 24 which we provided to Mr. Eastepp in the last few days. 25 believe if we have not handed up, we will hand up a revised And I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 16 of 245 16 1 exhibit list to the clerk. 2 And I don't know -- to be honest with you, I don't know the 3 defense's position as to whether there's an objection to 4 preadmission of those exhibits or not. THE COURT: 5 6 9 10 11 12 They're not on the list that I have. My list quits at 17. MR. COONEY: 7 8 It's just Exhibits 18, 19 and 20. Can I hand up a copy to your clerk, Your Honor? THE COURT: Yes. MR. EASTEPP: I don't object, Judge, to expedite things, to 18 and 19, the various letter iterations of 18 and 19. THE COURT: All right. 13 19D, 19E, 19F, are admitted. 14 MR. EASTEPP: 15 THE COURT: 18A, 18B, 18C, 19A, 19B, 19C, And we'll try to work out the rest. All right. Let me -- counsel, we have our 16 interpreter sitting here patiently, but it's my understanding we 17 don't need an interpreter. 18 MR. COONEY: 19 MR. EASTEPP: 20 THE COURT: 21 for three courts. The government does not. We do not. All right. And so, Sandra, you are excused. 22 THE INTERPRETER: 23 THE COURT: 24 25 Because we have two interpreters Thank you. All right. clerk just brought it up. We have the jury list. The jury Counsel, let me bring up one issue. Why don't you go ahead and give them the list. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 17 of 245 17 1 As you look at that list, Jurors 14 and 16 are full time 2 students. They're here because it's their spring break, and so 3 they're not actually in school. 4 Monday or leap into Monday, depending on the alacrity that we're 5 using, this would pose a problem to them. 6 right now I'm more than likely, unless we're desperate for 7 jurors, going to excuse 14 and 23. 8 MR. COONEY: 9 THE COURT: 10 Government does not object. 12 THE COURT: 13 MR. COONEY: 14 THE COURT: Did you say 14 and 23 or 14 and 26? 14 and 23. 14 and 23. All right. Thank you. I'm going to step off, let y'all look at the list, and we'll bring the jury up. 16 (Recess taken from 9:09 to 9:41.) 17 (Jury panel present.) 19 I mean, I won't do that in front of the other jurors. MR. COONEY: 18 So I'm telling you But I won't do that while they're here. 11 15 But were this to drag into THE COURT: Thank you. Be seated. Good morning, ladies and gentlemen. 20 THE JURY: Good morning. 21 THE COURT: Thank you for being here on time. 22 we are getting a little tardy start here. 23 problems. Figure that. 24 I'm Judge Hanen. 25 MARSHAL: I'm sorry We're having computer No one has ever had those before. You're obviously here -- We have one in the restroom, Your Honor, one Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 18 of 245 18 1 of the jurors. 2 THE COURT: All right. 3 (Juror reappears.) 4 THE COURT: I'm Judge Hanen, and we're here to start the 5 task of selecting a jury to try a criminal case. 6 be asking you a series of questions. 7 you listen carefully to the questions and keep in mind those 8 questions that call for affirmative answers or explanations on 9 your part. 10 I'm going to It's important that all of Please recall that you've been placed under oath, and the 11 oath you took obligates you to give fair and truthful answers to 12 these questions. 13 impartial juror if you're able to do so, but it's equally your 14 solemn duty not to serve if for any reason you can't be fair and 15 impartial. 16 slightest hesitation or awkwardness about performing to disclose 17 to the Court any fact or belief which might prevent you from 18 serving as a fair and impartial juror. 19 It's your solemn duty to serve as a fair and So today it's your duty that you should not feel the However, it's important you should not say anything in open 20 court about the parties in this case or about any other matter 21 which might tend to impair the openmindedness or fairness of the 22 other jurors. 23 answer yes or no. 24 true or accurate regarding you or your beliefs, simply respond 25 by raising your hand to indicate so. So if a question asks for a yes or no, simply If a question merely asks if something is And then when further Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 19 of 245 19 1 2 matters need to be gone into, I'll call on you. Now, the purpose of these questions is to enable us to 3 select a jury that will be fair and impartial. 4 you and your answers to them are in no sense evidence in the 5 case, and you should not regard them or any thoughts which they 6 may raise in your minds as having any bearing on the case. 7 My questions to Questions are not meant to embarrass you in any way but only 8 to elicit basic information necessary to permit the parties to 9 make an informed choice of jurors for the case. If you feel the 10 answers to any of my questions will cause you great 11 embarrassment or discomfort or you would prefer to discuss the 12 answers privately, let me know, and I'll arrange a time for that 13 to happen. 14 Now, this is a case of United States, which is the 15 prosecution on one side, and Eugenio Pedraza, the defendant, on 16 the other side. 17 or about February of 2011 through in and about January of 2012, 18 the defendant conspired with others to falsify memoranda of 19 investigative activity relating to numerous active open criminal 20 investigations and other departments -- other documents, excuse 21 me, in anticipation of internal inspection of the Department of 22 Homeland Security-Office of Inspector General's field office in 23 McAllen, in violation of Title 18, United States Code, Section 24 371. 25 The indictment in the case alleges that from in Now, for short, I'll refer to the Office of Inspector Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 20 of 245 20 1 General as Department of Homeland Security or DHS-OIG. 2 of the indictment alleges that Gene Pedraza, as Special Agent in 3 Charge of the McAllen field office, knowingly and willfully 4 conspired with others to falsify, alter or destroy records in 5 advance of an internal DHS-OIG inspection of the McAllen office. 6 Count 1 Counts 2, 4, 6, 10, 11 and 13 charge the defendant with 7 knowingly falsification of various records in federal 8 investigations and aiding and abetting, in violation of Title 9 18, United States Code, Sections 1519 and 2. 10 And lastly Count 12 charges the defendant with obstruction 11 of justice and aiding and abetting, in violation of Title 18, 12 United States Code, Section 1512(c)(1) and 2. 13 Now, the indictment alleged is not evidence against the 14 defendant, and it affords no inference of guilt. It's only a 15 statement of what crimes the government intends to prove. 16 defendant has pled not guilty to the indictment; that is, he's 17 denied the charges made by the government. The 18 The accusations and the denial by the defendant of those 19 accusations therefore raises issues of fact that must be decided 20 in order to determine whether the defendant is guilty or not 21 guilty. 22 And that, of course, is why you're here today. Now, from that brief description of the case I just gave 23 you, does anyone have any personal knowledge about the charges 24 in this case? 25 (No response) Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 21 of 245 21 THE COURT: 1 2 3 charges? (No response) THE COURT: 4 5 6 Has anybody heard or read anything about the Do any of you know anything about the case other than what you've heard in my brief description just now? (No response) THE COURT: 7 Has anyone formed an opinion about the guilt 8 or innocence of the defendant or about the merits of the case 9 merely because of that brief description I've given you? 10 (No response) THE COURT: 11 12 13 Is there anyone here that might be influenced just by the nature of the charge? (No response) THE COURT: 14 All right. The presentation of the evidence 15 in this case is expected to take about five to six days. 16 trial will begin today and hopefully will be done this week, but 17 it could spill over into Monday of next week. 18 19 Now, does this present a special problem for anyone? The By special problem, I mean you're attending your own funeral. 20 PROSPECTIVE JUROR: 21 THE COURT: I've -- Wait, wait, wait. I'm going to pick on you 22 first. When you answer a question, we want you to give your 23 juror number first. 24 Barbara is the official court reporter. 25 and can't do it. I can see you and hear your answer. So go ahead, sir. She's sitting down low Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 22 of 245 22 PROSPECTIVE JUROR: 1 Juror 33. I have a subpoena to 2 appear in witness in district court in Hays County on the 17th, 3 Monday the 17th. 4 THE COURT: All right. 5 PROSPECTIVE JUROR: 16. Thank you, sir. It's not a funeral, but 6 tomorrow my fiancee's family, we -- this has been planned since 7 a year ago to attend his sister's wedding, which takes place on 8 Friday. 9 planned since a year ago. The whole family leaves tomorrow. 10 THE COURT: 11 PROSPECTIVE JUROR: 12 THE COURT: 13 PROSPECTIVE JUROR: 14 Again, this has been Where's the wedding? San Antonio. You've been to San Antonio before. Well, if everyone leaves tomorrow without me -- 15 THE COURT: All right. Thank you, ma'am. 16 PROSPECTIVE JUROR: Thank you. 17 PROSPECTIVE JUROR: No. 17. And we had previous 18 arrangements to be out of town the latter part of this week with 19 the nonrefundable hotel registration. 20 THE COURT: 21 Anyone else? 22 (No response) 23 THE COURT: All right. Thank you, ma'am. All right. Under our system of law, the 24 facts are for the jury to determine, and the law is for the 25 Court, for me. These are two separate and distinct areas. At Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 23 of 245 23 1 the end of the case, I will instruct you on the law, and you are 2 required to accept the law as I explain it to you. 3 your job to determine the facts using my explanation of the law. 4 5 6 7 8 9 10 It will be Is there anyone here who feels that he or she would either be unwilling or unable to apply the law as I explain it to you? (No response) THE COURT: Is there anyone here who's had any legal or paralegal training? (No response) THE COURT: All right. If selected to sit on this case, 11 you're going to be expected to render a verdict solely on the 12 evidence presented at the trial and in the context of the law as 13 I will explain it to you, disregarding any other ideas, notions 14 or beliefs you may have about the law. 15 16 17 18 Now, is there anyone here who feels that he or she won't be able to do that? (No response) THE COURT: The law provides that only the evidence 19 produced here in court may be used by a juror to determine the 20 guilt or innocence of the defendant. 21 will have problems accepting that instruction? 22 23 Is there anyone here who (No response) THE COURT: Now, we're in federal court, and the federal 24 courts differ from the state courts of Texas. 25 punishment is an issue for the judge. In federal court, I decide what the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 24 of 245 24 1 2 punishment is if a defendant is found guilty. Now, notwithstanding the fact that a jury will not be 3 directly assessing any potential punishment that the defendant 4 will be assigned if found guilty, sometimes it's not an easy 5 thing to find someone guilty of a crime. 6 Is there anyone here, who despite what the evidence may 7 indicate and the law may require, who would find it difficult or 8 impossible to reach a guilty verdict for reasons unrelated to 9 the law or the evidence? For instance, some people have 10 religious beliefs that would prevent them from doing that or 11 philosophical beliefs. 12 Anybody fall into that category? (No response) THE COURT: 13 All right. Under the law, every defendant 14 is presumed to be innocent and cannot be found guilty unless a 15 jury, having heard all the evidence in the case, unanimously 16 decides that the evidence proves his or her guilt beyond a 17 reasonable doubt. 18 difficulty accepting that as the law? 19 Is there anyone here who would have (No response) THE COURT: 20 Is there anything about the defendant or 21 about the nature of the charges that would interfere with you 22 presuming the defendant to be innocent? PROSPECTIVE JUROR: 23 Juror 11. I don't think that I 24 would be able to listen to the testimony fairly. 25 of -- I already kind Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 25 of 245 25 1 THE COURT: 2 PROSPECTIVE JUROR: 3 THE COURT: 4 Well --- think -- -- I'll come back and talk to you about that. 5 PROSPECTIVE JUROR: 6 THE COURT: Okay. Thank you. Now, the government must prove a defendant 7 guilty beyond a reasonable doubt. The defendant need not put on 8 any evidence in his defense. 9 to testify, you are not to consider that to be evidence that And if the defendant chooses not 10 he's guilty. Therefore, if the government fails to prove each 11 and every element of the defendant's guilt beyond a reasonable 12 doubt, a jury cannot find the defendant guilty. 13 Is there anyone here who feels like they cannot require the 14 government to meet this responsibility of proving the defendant 15 guilty beyond a reasonable doubt? 16 17 (No response) THE COURT: Is there anyone here who's incapable of 18 drawing no inference from the fact that the defendant may choose 19 not to testify or may choose not to put on any evidence? 20 21 (No response) THE COURT: All right. The government -- sometimes I 22 refer to it as the prosecution; sometimes I'll refer to it as 23 the United States -- is represented by Mr. Brian Kidd and 24 Mr. J.P. Cooney. 25 Mr. Cooney, why don't you stand up and introduce yourself Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 26 of 245 26 1 and the other folks at your table. MR. COONEY: 2 3 Thank you, Your Honor. Good morning, ladies and gentlemen. My name is J.P. Cooney, 4 a trial attorney with the U.S. Department of Justice, Public 5 Integrity Section. 6 Hanen just introduced. 7 Bennett Starnes, a paralegal, and Laura Harbison Sirles, an 8 agent with the FBI. THE COURT: 9 10 11 This is my colleague, Brian Kidd, who Judge And seated with us at counsel table are All right. Does anyone know Mr. Cooney or any of the folks sitting at his table? (No response) THE COURT: 12 All right. Mr. Cooney, if you would, could 13 you read off the witnesses that the government may call in this 14 case? 15 16 MR. COONEY: Yes, Your Honor. Ladies and gentlemen, during the course of this case you may 17 hear from or about the following individuals. 18 following individuals who are all either employed or formerly 19 employed with DHS, the Department of Homeland Security-Office of 20 the Inspector General: 21 Chieh or C.J. Chang, Francisco Darosa, Terrance Demeroto, Jose 22 Eraslio Flores, who also goes by -- 23 THE COURT: 24 MR. COONEY: 25 THE COURT: First, the James Kirk Beauchamp, Edwin Castillo, Go ahead and finish. J.R. Flores. Let me stop you right there. Does anyone Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 27 of 245 27 1 2 know any of those individuals? (No response) 3 THE COURT: 4 MR. COONEY: 5 6 Hinojosa, James Izzard. THE COURT: PROSPECTIVE JUROR: age? THE COURT: 12 MR. COONEY: 13 THE COURT: Kristofor Healey, his May I provide his approximate age? Yeah. What's his approximate age, Mr. Cooney? MR. COONEY: 16 PROSPECTIVE JUROR: 17 THE COURT: 18 MR. COONEY: 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 25 Jury No. 1. What's his approximate -- 15 24 Let me stop you right there. I'm not sure if it's -- 11 14 All right. Anyone know any of those individuals? 9 10 Thank you, Your Honor. Roland Gomez, David Green, Kristofor Healey, Cynthia 7 8 Go ahead, Mr. Cooney. Approximately 30. He used to reside in Harlingen? Go ahead. I think he did. I believe so. I believe I know him. Do you know him? Yes, sir. How do you know him? I believe his father was a police officer in Harlingen. THE COURT: Okay. Is there anything about your Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 28 of 245 28 1 knowledge of either his father or Mr. Healey that would make it 2 hard for you to be fair and impartial to both sides here? PROSPECTIVE JUROR: 3 4 sir. THE COURT: 5 6 You can listen to the evidence and judge it as it comes and let the chips fall where they may? 7 PROSPECTIVE JUROR: 8 THE COURT: 9 MR. COONEY: 10 THE COURT: 11 MR. COONEY: 12 THE COURT: THE COURT: 16 MR. COONEY: 18 All right. Yes, sir. Thank you, sir. May I continue, Your Honor? You may. Della Saenz and Robert Vargas. Anybody know Ms. Saenz or Mr. Vargas? (No response) 15 17 Sure. And, Your Honor, all those are individuals with DHS-OIG. 13 14 I'd have to just judge the evidence, All right. Anyone else, Mr. Cooney? I do have a few more individuals, Your Honor. The following individual is employed by the Customs Border 19 Protection, CBP. 20 individuals are employed by the FBI. 21 Krupa, Freddy Vela and, of course, Agent Sirles who I introduced 22 previously. 23 24 25 Ricardo Villarreal. THE COURT: All right. Michael Carlisle, Robert Anyone know any of the other individuals now Mr. Cooney has named? (No response) And then the following Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 29 of 245 29 1 THE COURT: 2 MR. COONEY: 3 THE COURT: 4 5 6 7 All right. Thank you, Mr. Cooney. Thank you, Your Honor. All right. Ladies and gentlemen, Mr. Pedraza is represented by Mr. Larry Eastepp. Mr. Eastepp, if you'd introduce yourself and your client, please. MR. EASTEPP: Good morning, ladies and gentlemen. 8 are y'all? 9 You'll hear him mostly referred to as Gene. 10 11 12 13 I'm Larry Eastepp. How My client is Eugenio Pedraza. I'm proud to represent him today. THE COURT: Anyone know Mr. Eastepp or Mr. Pedraza? (No response) THE COURT: All right. Mr. Eastepp, do you have any 14 names you'd like to add to the government's list of individuals 15 that might be called? 16 MR. EASTEPP: 17 Your Honor. 18 Jody Warren. 19 20 There's only one. There was some overlap, The only thing will be William, commonly called THE COURT: Does anyone know him? (No response) 21 THE COURT: 22 MR. COONEY: All right. Your Honor, if I may, may I add one name? 23 Also employed or formerly employed with Department of Homeland 24 Security-Office of Inspector General, Marco Rodriguez. 25 THE COURT: Does anyone know Mr. Rodriguez? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 30 of 245 30 1 (No response) 2 THE COURT: All right. 3 MR. COONEY: 4 THE COURT: Thank you, Your Honor. I know I'll get some hands on this. Ladies 5 and gentlemen, I'm going to ask you about your prior jury 6 service. 7 criminal case? 8 reach a verdict? 9 was, just whether you reached a verdict. 10 11 And what I want to know is did you serve on a civil or Some have probably served on both. 13 side. THE COURT: Okay. PROSPECTIVE JUROR: Thank you, sir. Brief, but to the Juror No. 2. And served on a criminal case and no verdict. THE COURT: 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 25 Criminal, and yes, we did, point. 20 24 No. 1. Pick a and yes, I was. 16 19 See, I knew we'd get hands for this. PROSPECTIVE JUROR: 14 18 And then finally if So let me see the hands of those individuals that have sat on juries before. 17 And you don't have to tell me what the verdict you were the foreperson of that jury. 12 15 Did you All right. No. And were you the foreperson? No, sir. No, Your Honor. All right. No. 3. It was criminal. judged and yes. THE COURT: Were you the foreperson? It was Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 31 of 245 31 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 Okay. No. 4. THE COURT: 6 PROSPECTIVE JUROR: Okay. No. 6. THE COURT: 9 PROSPECTIVE JUROR: You reached a verdict? Yes. 10 THE COURT: 11 PROSPECTIVE JUROR: Yes. 12 PROSPECTIVE JUROR: No. 17. And were you the foreperson of the -- did reach a verdict. THE COURT: 15 PROSPECTIVE JUROR: All right. THE COURT: 18 PROSPECTIVE JUROR: No. 18. It was criminal. Yes and 20. It was criminal and we did reach a verdict and I was not a foreman. THE COURT: 21 PROSPECTIVE JUROR: verdict. Thank you, ma'am. 21. It was criminal. We reached a I was not foreman. 23 THE COURT: 24 PROSPECTIVE JUROR: 25 Thank you, ma'am. All right. 20 22 Yes, we no. 17 19 It was criminal. And no, I was not a foreman. 14 16 It was criminal, and it was judged. 8 13 Yes, it was criminal, and we did reach a verdict, and no. 5 7 Yes. reached a verdict. Thank you, ma'am. No. 13. It was criminal. And no, I wasn't no fore. We Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 32 of 245 32 1 THE COURT: 2 PROSPECTIVE JUROR: 3 All right. 16. It was civil and we reached a verdict and no. THE COURT: 4 All right. Let me pick on you for a minute 5 since you were the first one that mentioned they sat on a civil 6 case. 7 Now, ladies and gentlemen, in a civil case, a plaintiff has 8 to prove their case by a preponderance of the evidence. 9 a criminal case. This is In a criminal case, the government has to 10 prove the defendant's guilt beyond a reasonable doubt. 11 that's a different standard and it's a higher standard. 12 to make sure everybody understands there's a difference. 13 14 15 PROSPECTIVE JUROR: verdict. 17 PROSPECTIVE JUROR: All right. THE COURT: 20 PROSPECTIVE JUROR: We reached a Thank you, ma'am. No. 25. It was civil, we reached a All right. No. 26. It was civil, we reached a verdict, and no. 22 THE COURT: 23 PROSPECTIVE JUROR: 25 Civil. verdict; and no, I was not. 19 24 No. 10. And no, I wasn't the foreperson. THE COURT: 21 I want Thank you, ma'am. 16 18 Now, Thank you. No. 28. It was criminal, and we reached a verdict, and no, I wasn't the foreman. THE COURT: All right. Thank you. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 33 of 245 33 PROSPECTIVE JUROR: 1 2 THE COURT: 4 PROSPECTIVE JUROR: 7 PROSPECTIVE JUROR: THE COURT: All right. THE COURT: 13 PROSPECTIVE JUROR: 17 18 19 20 21 22 It was civil. It was No. 38. It was criminal, yes and verdict. Thank you, ma'am. No. 52. It was two criminal. Yes, And no, not a fore. PROSPECTIVE JUROR: reached a verdict. No. 53. It was criminal. We And no, I was not the foreman. PROSPECTIVE JUROR: we reached a verdict. 44. It was criminal -- civil, and No, I wasn't. PROSPECTIVE JUROR: No. 42. Civil, and we reached a verdict; and no, I was not a foreman. THE COURT: Anyone else? Thank you, ma'am. There's another hand. 23 PROSPECTIVE JUROR: 24 THE COURT: 25 No. 37. no. 12 16 Thank you, ma'am. All right. PROSPECTIVE JUROR: 10 15 It was criminal, yes and settled, so no verdict and no. 9 14 No. 35. no. THE COURT: 11 Yes, yes. Okay. 6 8 Civil and criminal. No, no. 3 5 33. No. 47. All right. Criminal. Yes and no. I want to congratulate y'all. That's the fastest I've ever done that. Y'all got the answers Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 34 of 245 34 1 2 straight to the point. All right. For those of you that we just talked to that 3 have served on juries before, is there anyone here that because 4 of some experience when you served on a jury, that there's -- 5 that you would find it hard to be fair and impartial to both 6 sides here? 7 (No response) THE COURT: 8 9 10 little bit. All right. Now I'm going to talk to you a I want you, close family member, close friend ever been involved in a lawsuit? PROSPECTIVE JUROR: 11 33. I've been involved in two 12 lawsuits. 13 started a business in competition with them. 14 preliminary hearing, and that's as far as it went. 15 dismissed. 16 One when I left a company and the company sued me. It just went to It was The second one as a pastor of a church over a property 17 issue. 18 the suit, and we were attached to it. 19 prevailed. 20 I A company and -- anyway, two other people involved in THE COURT: All right. It went to trial, and we Anything about either of those 21 experiences, sir, that would make it hard for you to be fair and 22 impartial to both sides here? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 No. All right. Thank you, sir. Anyone else been involved in a lawsuit? You, close family Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 35 of 245 35 1 member, close friend. PROSPECTIVE JUROR: 2 Juror No. 36. I haven't been in a 3 lawsuit, but a close family -- my parents were involved in a 4 couple of lawsuits involving injury, but I wasn't a party. THE COURT: 5 Anything about those experiences that would 6 make it hard for you to be fair and impartial to both sides here 7 today? 8 THE DEFENDANT: 9 THE COURT: 10 Anyone else? 11 (No response) 12 13 14 THE COURT: No. All right. Thank you. Has anyone ever testified before in a lawsuit, either by deposition or getting on the witness stand? PROSPECTIVE JUROR: No. 48. My wife was involved in a 15 minor traffic accident a couple years ago and had a -- you know, 16 was being sued for -- 17 THE COURT: All right. Anything about that experience 18 that would make it hard for you to be fair and impartial to both 19 sides here? 20 PROSPECTIVE JUROR: 21 THE COURT: 22 PROSPECTIVE JUROR: 23 24 25 No, sir. All right. No. 33. Same two lawsuits. Both cases I was asked to testify. THE COURT: Anything about either of those situations that would make it hard for you to be fair and impartial here? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 36 of 245 36 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 was a reporter. 5 Sorry. 6 7 All right. THE COURT: THE COURT: 13 No. Anyone else testified in a lawsuit? PROSPECTIVE JUROR: I'm Juror No. 7. I was called for a -- on a deposition in our company. THE COURT: Anything about that experience, sir, that would make it hard for you to be fair and impartial here? 14 PROSPECTIVE JUROR: 15 THE COURT: 16 Anyone else? 17 (No response) 18 I'm sorry, 36. would make it hard for you to be fair and impartial here? 9 12 I was called for a deposition when I Anything about that experience, ma'am, that PROSPECTIVE JUROR: 11 Thank you. I -- it was a civil court. 8 10 No, sir. THE COURT: No, sir. All right. Thank you. All right. Anyone, either you -- and I take 19 it we have all of your information, so it's probably not you -- 20 close family member, close friend a lawyer or a judge? 21 22 23 PROSPECTIVE JUROR: I'm 31. My cousin, Leonel Lopez, is married to Elia Cornejo Lopez. THE COURT: All right. Anything about your relationship 24 with him that would make it hard for you to be fair and 25 impartial here? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 37 of 245 37 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 No, sir. All right. Thank you, ma'am. No. 26. Leandro Ortiz is a good friend of mine. THE COURT: 5 Anything about your relationship that would 6 make it hard for you to be fair and impartial to both sides 7 here? 8 PROSPECTIVE JUROR: 9 THE COURT: 10 11 12 13 No, sir. All right. PROSPECTIVE JUROR: Juror 25. My wife works for State Rep Eddie Lucio the Third and also a close friend of ours. THE COURT: All right. Anything about that relationship that would make it hard for you to be fair and impartial here? 14 PROSPECTIVE JUROR: 15 THE COURT: 16 PROSPECTIVE JUROR: 17 THE COURT: 18 PROSPECTIVE JUROR: 19 THE COURT: 20 PROSPECTIVE JUROR: 21 THE COURT: No, sir. All right. Okay. No. 17. My brother is an attorney. Where does he practice? Here in Brownsville. Who is he? Ricardo Morado. All right. Anything about your relationship 22 with Ricardo Morado that would make it hard for you to be fair 23 and impartial here? 24 PROSPECTIVE JUROR: 25 THE COURT: No, sir. Anyone else? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 38 of 245 38 1 2 (No response) THE COURT: All right. Let me ask, has anyone here ever 3 worked for or had dealings with the Department of Homeland 4 Security? 5 (No response) 6 PROSPECTIVE JUROR: 7 THE COURT: Did you say relatives? That was going to be my next question, so 8 you're -- that's all right. 9 or close relatives that work for the Department of Homeland 10 11 12 Security? PROSPECTIVE JUROR: Security. THE COURT: 14 PROSPECTIVE JUROR: 15 THE COURT: 16 PROSPECTIVE JUROR: 17 THE COURT: That's Juror 38. have you say it out loud. 20 THE COURT: 23 24 25 Jury 38. See, Barbara can't see you, so that's why we PROSPECTIVE JUROR: 22 I'm sorry? You're Juror 38. 19 21 My brother worked for Homeland I'm sorry. 13 18 Does anyone have any close friends I'm sorry. All right. What kind of position was your brother? PROSPECTIVE JUROR: He worked for the United States Customs. THE COURT: All right. Is there anything about your relationship with him that would make it hard to be fair and Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 39 of 245 39 1 impartial here today? 2 PROSPECTIVE JUROR: 3 THE COURT: 4 PROSPECTIVE JUROR: 5 All right. for the federal courts. I have a younger brother that worked Is that Homeland Security too? 6 THE COURT: 7 PROSPECTIVE JUROR: 8 No. Probably not, but where did he work? He worked here in Brownsville and McAllen. THE COURT: 9 Okay. 10 PROSPECTIVE JUROR: 11 THE COURT: 12 PROSPECTIVE JUROR: 13 THE COURT: And what did he do for them? I'm sorry? What position did he hold? Deputy clerk I think was his title. Is there anything about your relationship 14 with him that would make it hard for you to be fair and 15 impartial here? 16 PROSPECTIVE JUROR: 17 THE COURT: 18 PROSPECTIVE JUROR: 19 No, sir. All right. Juror No. 28. uncle work with the DHS out of Harlingen. 20 THE COURT: 21 PROSPECTIVE JUROR: And what part of DHS do they work for? My dad is a supervisor, and my uncle 22 works out of the one in Bayview actually. 23 Bayview. THE COURT: 24 25 My father and my then? Okay. He gets sent to Does your dad work for Border Patrol Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 40 of 245 40 1 2 3 PROSPECTIVE JUROR: Patrol, but not anymore. THE COURT: My dad used to work for Border He's with ICE. Okay. All right. Is there anything about 4 either of those relationships, ma'am, that would make it hard 5 for you to be fair and impartial here? 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 10 No, Your Honor. All right. Thank you. No. 30. My cousin works for Border Patrol out of Laredo, Texas. THE COURT: All right. And anything about your 11 relationship with him that would make it hard for you to be fair 12 and impartial here? 13 PROSPECTIVE JUROR: 14 THE COURT: No, sir. All right. 15 All right. 16 Let me expand the question. Thank you. Let me -- I don't see any other hands. You, close family member, close 17 friend work for law enforcement, whether it's DHS, Brownsville 18 Police, Harlingen Police, Sheriff's Office, anyone have 19 relatives that work in law enforcement? 20 21 PROSPECTIVE JUROR: THE COURT: 23 PROSPECTIVE JUROR: 25 Yes, here in Brownsville. 22 24 Juror No. 47. All right. Who works -- Jose Davila. He's a supervisor for the traffic patrol. THE COURT: How is he related to you? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 41 of 245 41 1 PROSPECTIVE JUROR: 2 THE COURT: Okay. He's married to my sister. Anything about your relationship with 3 your brother-in-law that would make it hard for you to be fair 4 and impartial here? 5 PROSPECTIVE JUROR: 6 THE COURT: 7 PROSPECTIVE JUROR: 8 THE COURT: Thank you, ma'am. No. 32. My husband works for All right. And how long has he worked for Customs? PROSPECTIVE JUROR: 11 12 All right. Customs. 9 10 None. He's in training right now, so it's just recently. THE COURT: 13 All right. Anything about that relationship 14 that would make it hard for you to be fair and impartial to both 15 sides here? 16 PROSPECTIVE JUROR: 17 THE COURT: 18 PROSPECTIVE JUROR: No, sir. All right. Thank you, ma'am. Juror No. 28. I have my uncle 19 that's stationed in California as Border Patrol, and also have 20 my aunt and uncle that are stationed in Laredo, Border Patrol as 21 well. 22 My father in ICE and my uncle. THE COURT: All right. Anything about those additional 23 relationships that you've mentioned now that would make it hard 24 for you to be fair and impartial to both sides here? 25 PROSPECTIVE JUROR: No, Your Honor. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 42 of 245 42 1 THE COURT: 2 PROSPECTIVE JUROR: 3 THE COURT: Cousin, Border Patrol, Anything about your relationship with your cousin -PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 THE COURT: No. Let me finish the question. Sorry. You know what I'm going to ask you, but it 10 needs to read right. 11 answer. 13 No. 15. All right. 6 12 Thank you. Laredo. 4 5 All right. The question has to come before the Anything about that relationship that would make it hard to be fair and impartial? 14 PROSPECTIVE JUROR: 15 THE COURT: 16 PROSPECTIVE JUROR: No. All right. Thank you. No. 14. My grandfather and my 17 grandmother used to work for the Brownsville Police Department. 18 Now they're retired. 19 THE COURT: All right. Anything about your relationship 20 with your grandparents that would make it hard to be fair and 21 impartial? 22 PROSPECTIVE JUROR: No, sir. 23 PROSPECTIVE JUROR: No. 3. 24 25 My cousin, he's a police here in Brownsville. THE COURT: All right. Anything about that relationship Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 43 of 245 43 1 that would make it hard to be fair and impartial here? 2 PROSPECTIVE JUROR: No. 3 PROSPECTIVE JUROR: Juror No. 2. 4 5 6 works as a deputy in -- for Tarrant County. THE COURT: Okay. PROSPECTIVE JUROR: 8 THE COURT: 9 PROSPECTIVE JUROR: 11 12 Anything about that relationship with that cousin that would make it hard to be fair and impartial? 7 10 I have a cousin who No, Your Honor. All right. No. 18. that also include correctional? THE COURT: All right. And I wanted to ask, does Because I'm in corrections. And where are you in corrections? 13 PROSPECTIVE JUROR: 14 THE COURT: 15 PROSPECTIVE JUROR: 16 THE COURT: In Raymondville, Texas. You're there at Willacy County? Yes, sir. All right. Anything about that position 17 that you hold that would make it hard for you to be fair and 18 impartial to both sides here? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: 22 No, sir. All right. Thank you, ma'am. Jury No. 22. My sister's son -- my sister's -- her son, her son is in the ICE. 23 THE COURT: All right. 24 PROSPECTIVE JUROR: 25 THE COURT: Do you know what he does at ICE? No, sir. All right. Is there anything about that Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 44 of 245 44 1 relationship with your nephew that would make it hard for you to 2 be fair and impartial here? 3 PROSPECTIVE JUROR: 4 THE COURT: 5 Anyone else? 6 (No response) THE COURT: 7 8 No, sir. All right. Thank you, sir. All right. Does anyone else, you or your spouse, work for the federal government in some other capacity? PROSPECTIVE JUROR: 9 10 Fish and Wildlife. 11 THE COURT: Juror 11. My husband works for U.S. Anything about your relationship with your 12 husband that would make it hard for you to be fair and impartial 13 here? 14 PROSPECTIVE JUROR: 15 THE COURT: 16 17 18 19 No, I guess not. This is why Tony stays in shape. He gets to sprint up and down here. PROSPECTIVE JUROR: Juror No. 2. I work for the United States Postal Service. THE COURT: All right. Anything about your position 20 there that would make it hard for you to be fair and impartial 21 to both sides here? 22 PROSPECTIVE JUROR: 23 THE COURT: 24 25 No, Your Honor. Anyone else? (No response) THE COURT: Is there anyone here who -- either you or Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 45 of 245 45 1 your business is such that you profit from any kind of dealings 2 with the federal government? 3 4 PROSPECTIVE JUROR: THE COURT: 6 PROSPECTIVE JUROR: 7 THE COURT: 9 I work for a crane service, and we do just for the government. 5 8 Juror 49. You work for what? Okay. A crane service. Anything about that relationship that would make it hard for you to be fair and impartial here? PROSPECTIVE JUROR: 10 THE COURT: 11 PROSPECTIVE JUROR: No. Anyone else? No. 48. We have a business who 12 supplies parts and materials to groups like the Border Patrol 13 and Customs. 14 THE COURT: 15 PROSPECTIVE JUROR: 16 supplies for the trucks and stuff. 17 18 THE COURT: Okay. What kind of parts? Industrial supplies, automotive Anything about that relationship that would make it hard for you to be fair and impartial here? 19 PROSPECTIVE JUROR: No, sir. 20 PROSPECTIVE JUROR: I'm Juror 41. 21 I work for Tip-O-Tex Company. 22 Patrol in all kind of vehicles. 23 THE COURT: All right. I work for a company. We do service to the Border Anything about the relationship 24 you might have there that would make it hard for you to be fair 25 and impartial to both sides here? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 46 of 245 46 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 No, not at all. Thank you, sir. Juror 42. I work for DHS, Rio Grande State Center, and we often have OIG visit us. 5 THE COURT: 6 PROSPECTIVE JUROR: 7 THE COURT: 8 PROSPECTIVE JUROR: 9 THE COURT: 10 No. Tell me who you work for. Rio Grande State Center. And what is that? Okay. It's a mental hospital. And you have the Office of Inspector General of DHS visits that facility? 11 PROSPECTIVE JUROR: 12 THE COURT: 13 PROSPECTIVE JUROR: 14 THE COURT: Yes, sir. Okay. They investigate -- Is there anything about your relationship 15 with any of those individuals and the individuals that would 16 come and meet with you that would make it hard for you to be 17 fair and impartial here? 18 PROSPECTIVE JUROR: 19 THE COURT: 20 PROSPECTIVE JUROR: 21 22 No, sir. All right. Thank you, ma'am. No. 30. I work for the Port of Brownsville, and we work with the Coast Guard and Customs. THE COURT: All right. Anything about those 23 relationships that would make it hard for you to be fair and 24 impartial to both sides here? 25 PROSPECTIVE JUROR: No, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 47 of 245 47 1 2 3 THE COURT: Anyone else? (No response) THE COURT: Has anyone here, either you or your business 4 or your spouse's business ever been a party to an investigation 5 or a dispute with the federal government? 6 7 (No response) THE COURT: I'm not talking about patriotism because I 8 hope we're all patriotic. 9 bias or prejudice either for or against the federal government 10 11 12 But does anyone here have a strong in a situation such as this? (No response) THE COURT: Is there anyone here who would tend to 13 believe a witness solely because they work for the federal 14 government? 15 16 17 18 19 (No response) THE COURT: Is there anyone here who would disbelieve a witness solely because they worked for the federal government? (No response) THE COURT: Is there anyone here who would automatically 20 believe or trust something a witness said just because they work 21 for law enforcement? 22 (No response) 23 THE COURT: And then my opposite question. Is there 24 anyone here who would disbelieve or distrust anything a witness 25 said merely because they worked for law enforcement? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 48 of 245 48 PROSPECTIVE JUROR: 1 2 I tend to go that way. I'm Juror 11. 3 THE COURT: I'm going to come back and visit with you. 4 PROSPECTIVE JUROR: 5 THE COURT: Okay. Good. Is there anyone here who is affiliated with 6 any kind of group that takes a position on law enforcement, like 7 an auxiliary, some kind of law enforcement auxiliary or 8 something of that nature? 9 (No response) THE COURT: 10 All right. Now I'm going to ask you about 11 you, close family member, close friend ever been involved in a 12 criminal matter in court? 13 friend. 14 You, close family member, close Anyone? (No response) THE COURT: 15 All right. You, close family member, close 16 friend ever been the subject of an investigation or an 17 accusation by a governmental body? 18 PROSPECTIVE JUROR: Criminal matter, just -- I'm sorry. 19 Juror number -- sorry. Juror No. 36. 20 father has been involved in a criminal case. 21 THE COURT: 22 PROSPECTIVE JUROR: 23 THE COURT: 24 PROSPECTIVE JUROR: 25 DUIs. Okay. Criminal matter. My Was he the accused? Yes. All right. And when was that? I'm not really sure. It was mostly Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 49 of 245 49 1 2 THE COURT: Okay. would make it hard for you to be fair and impartial here? 3 PROSPECTIVE JUROR: 4 THE COURT: 5 PROSPECTIVE JUROR: 6 Anything about those experiences that No. All right. Juror 42. My son was involved in a criminal matter. 7 THE COURT: And what kind of matter was it? 8 PROSPECTIVE JUROR: 9 THE COURT: Drugs. All right. Is there anything about that 10 matter that would make it hard for you to be fair and impartial 11 to both sides here? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 Anyone else? 15 (No response) 16 THE COURT: 17 victim of a crime? 18 19 No, sir. All right. Thank you, ma'am. Is there anyone here who's ever been a (No response) THE COURT: Is there anyone here who's ever been 20 accused, you, close family member, close friend, of 21 falsification of records? 22 23 24 25 (No response) THE COURT: Or in any way obstructing justice? (No response) THE COURT: Is there anyone here who's ever had a major Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 50 of 245 50 1 conflict with a supervisor at work? 2 if you're a supervisor at work, is there anyone here who's had a 3 major conflict with someone that works for you? 4 5 Or flipping the other side, (No response) THE COURT: This case may involve certain witnesses who 6 have entered into plea bargains with the government, or some may 7 have entered into immunity agreements with the government. 8 of these are authorized by the rules of the court. 9 Both Is there anyone here who would automatically disbelieve or 10 distrust anyone -- anything a witness had to say merely because 11 they had that agreement? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 Okay. No. 1. Yes, sir. Let me come back. Anyone else? 15 PROSPECTIVE JUROR: 16 THE COURT: No. 11. I'm going to talk to you anyway. 17 Any other? 18 Counsel, can I see you up here? 19 (At the bench) 20 THE COURT: Right up here. 21 I'm about ready to wrap-up my general questioning. 22 anything, any area you want me to touch on that I haven't? 23 MR. EASTEPP: Not of a general nature, no, sir. 24 THE COURT: Okay. 25 MR. COONEY: No. Thank you, Your Honor. Is there Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 51 of 245 51 1 2 3 THE COURT: All right. (Open court) THE COURT: The law requires us to conduct the trial in 4 English. 5 skills are such that you don't feel like you'd be able to follow 6 the testimony? 7 8 9 10 11 12 Is there anyone here who feels that his or her English PROSPECTIVE JUROR: I feel that I have a limitation with the language. THE COURT: Okay. Thank you, sir. Anyone else? PROSPECTIVE JUROR: No. 6. I have a limitation, but I think my English is not very good, but I understand everything. 13 THE COURT: 14 PROSPECTIVE JUROR: 15 THE COURT: 16 No. 46. Okay. As long as you can understand it. Oh, okay. All right. Good. Is there anyone here who has any kind of physical disability 17 that would make it hard for you to sit as a juror? 18 promise you that the juror chairs are much more comfortable than 19 the benches you're sitting on. 20 21 22 PROSPECTIVE JUROR: Juror No. 22. In time my legs kind of get numb, but that's about it. THE COURT: All right. Normally we sit for periods of 23 about an hour-and-a-half and then take a break. 24 you manage that? 25 I can PROSPECTIVE JUROR: It's hard to tell. Is that -- can Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 52 of 245 52 1 2 3 4 THE COURT: Okay. If it makes you feel any better, every once in a while I have to stand up too. Yes, ma'am. PROSPECTIVE JUROR: I'm 19. Just -- just two days ago I 5 had problems with my knees. 6 with it, so I don't know what's going on. 7 THE COURT: 8 PROSPECTIVE JUROR: 9 THE COURT: 10 Was it an injury situation? Okay. I don't know. Hold on just a second. Is it bothering you as you sit there? 11 PROSPECTIVE JUROR: 12 THE COURT: 13 And I haven't gone to the doctor Okay. Yes, sir. Anyone else? Is there anyone sitting there thinking that, you know, if 14 the judge were smarter, he'd ask a better question and he'd 15 figure out that there's a reason I can't be fair and impartial 16 in this case? 17 18 (No response) THE COURT: All right. Ladies and gentlemen, here's 19 what I'd like to do. 20 I want you to stay on this floor right in this area where Tony 21 can find you. 22 ask to step back in to visit with, and then it will enable the 23 lawyers then to help me select the jury. 24 25 I'm going to excuse y'all to step outside. There will be certain individuals we're going to So I'm going to excuse y'all. You can go to the rest room or whatever you need, but stay where Tony can find you. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 53 of 245 53 1 Juror No. 1, I'm going to ask you to stay. 2 (Jury panel leaves courtroom.) 3 (Individual juror remains in courtroom.) 4 5 6 7 THE COURT: All right. Y'all can be seated. Juror No. 1, if you'd come right up here to the podium if you will. All right. Counsel, this is Juror No. 1, and I'd asked him 8 to stay because he actually answered two questions. 9 knew Mr. Healey's father, and then I also asked him a question 10 about if someone had entered into a plea agreement, whether he 11 would find that problematic as to whether he could believe or 12 disbelieve that witness solely because of the fact he entered a 13 plea agreement. 14 little bit. 15 That he And I wanted to ask him to expand on that a Tell me what your feeling is about that. PROSPECTIVE JUROR: Well, as far as Mr. Healey goes, I'm 16 not sure that it's the same Healey or -- but anyway, as far as 17 plea bargains go, I have a problem also with not representing 18 yourself too, so -- and plea bargains in my past experience in 19 running a business, when people start throwing everybody under 20 the bus, ain't nothing happens good. 21 22 23 24 25 THE COURT: All right. And when you say not representing yourself, what do you mind by that? PROSPECTIVE JUROR: Well, the first question, when the defendant is not going to try to -THE COURT: Not going to testify? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 54 of 245 54 PROSPECTIVE JUROR: 1 2 3 Right. I got a problem with that too. THE COURT: Okay. And do you feel -- let me start with 4 that last question first. 5 didn't testify -- and we don't know -- 6 PROSPECTIVE JUROR: 7 THE COURT: Do you feel like if the defendant Right. -- whether he's going to testify or not. 8 But if he didn't testify, do you feel like that would have 9 you -- it would give you a hard time presuming him to be 10 11 12 innocent if he chose not to testify? PROSPECTIVE JUROR: it, yeah. 13 THE COURT: 14 PROSPECTIVE JUROR: 15 16 17 I'd have a little difficulty with You need to speak up just a little bit. with that, yes, sir. THE COURT: I would have a little difficulty Sorry. All right. Mr. Cooney, any questions for Juror No. 1? 18 MR. COONEY: No, Your Honor. 19 THE COURT: 20 MR. EASTEPP: 21 THE COURT: Mr. Eastepp, any questions? No, Your Honor. Thank you. You can step outside then. 22 And, Tony, we'd like Juror No. 11. 23 (Juror leaves.) 24 (Juror enters.) 25 THE COURT: Come right up here to the podium, ma'am. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 55 of 245 55 1 Counsel, this is Juror No. 11, and I asked her to step back 2 in for a couple reasons. Ma'am, I asked is there anything about 3 the nature of the charges that might interfere with you being 4 able to presume the defendant to be innocent. 5 there might be a problem with that. PROSPECTIVE JUROR: 6 Yeah. And you indicated If you would, just tell me. I mean, every time I watch it 7 on TV, all these law enforcement judges, lawyers, everyone 8 that's supposed to be held up to a higher standard, corruption 9 big time. And that really bothers me. 10 THE COURT: All right. 11 PROSPECTIVE JUROR: So I think I have already kind of 12 formed an opinion or I already had a formed opinion. 13 know what this case was going to be about. 14 it, I was like: 15 feel. 16 17 Great, another one. THE COURT: But when you read That's the way I just And you feel like this would interfere with your ability to presume Mr. Pedraza to be innocent? 18 PROSPECTIVE JUROR: 19 THE COURT: 20 PROSPECTIVE JUROR: 21 THE COURT: Yeah. Was that a yes? Okay. Yes. I can see you shake your head, but I 22 need a yes for the court reporter. 23 PROSPECTIVE JUROR: 24 THE COURT: 25 I didn't I'm probably all shaky. Now, the other thing you indicated is that you might have problems with individuals that have entered into Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 56 of 245 56 1 plea agreements. 2 PROSPECTIVE JUROR: 3 THE COURT: 4 PROSPECTIVE JUROR: Yeah. And tell me what -- explain that. Well, if you got nothing to hide, 5 why do you have to plead? 6 didn't do it, you didn't do it. 7 THE COURT: 8 MR. COONEY: 9 THE COURT: All right. 11 THE COURT: 16 17 18 19 20 Mr. Cooney, any questions? No questions, Your Honor. All right. Thank you, ma'am. (Juror leaves.) THE COURT: 13 15 That's the way I think. Mr. Eastepp? MR. EASTEPP: 14 If you We have no questions, Your Honor. 10 12 Why do you have to do that? Tony, if you'd ask Juror No. 42 to step in. 42 is the individual that has had interaction with the OIG office. MR. EASTEPP: I'm guessing that's going to be the state has a similar Department of Health Services I think maybe. (Juror enters.) THE COURT: Come right up here if you will, ma'am. Just right up here by the podium would be great. 21 PROSPECTIVE JUROR: 22 THE COURT: Yes, sir. Counsel, this is Juror No. 42, and I asked 23 her to step back in because I didn't really understand, ma'am, 24 your answer to if you had dealings with the federal government. 25 And you said you did have visits with -- I mean dealings with Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 57 of 245 57 1 the Office of Inspector General at the Rio Grande -- is it the 2 school or the -- 3 PROSPECTIVE JUROR: 4 THE COURT: 5 Okay. PROSPECTIVE JUROR: 7 THE COURT: Just because you surprised me with that PROSPECTIVE JUROR: Okay. When there is investigations, if there's client abuse, OGI -- OGI comes in to investigate. THE COURT: 11 12 Okay. answer. 9 10 And I wanted you to elaborate a little bit on that. 6 8 It's the state center. Now, is that the state OGI or the federal OGI? PROSPECTIVE JUROR: 13 I got confused. Okay, it's the state. 14 confused. 15 that, you know, it didn't come up later. THE COURT: 16 Yeah. Yeah. I'm I just wanted to make sure Let me ask you a question, though. Since 17 you deal with an Office of Inspector General, albeit the state 18 one, not the federal one, is there anything about your dealings 19 with them that would make it hard for you to be fair and 20 impartial to both sides here? PROSPECTIVE JUROR: 21 No, sir, because it's not -- it's 22 indirectly that we -- I don't -- we just -- and if they're 23 investigating an employee, we just bring them in. THE COURT: 24 25 them? We don't -- You don't have that much interaction with Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 58 of 245 58 1 PROSPECTIVE JUROR: 2 THE COURT: 3 All right. So you could be fair and impartial to both sides? 4 PROSPECTIVE JUROR: 5 THE COURT: 6 MR. COONEY: 7 THE COURT: 8 MR. EASTEPP: 9 THE COURT: 10 No, sir, I don't. Yes, sir. Mr. Cooney, any questions? No, Your Honor. Mr. Eastepp? No, Your Honor. All right. Thank you, ma'am. All right. Mr. Cooney, are there any (Juror leaves.) THE COURT: 11 12 individuals that the government would like to call in and visit 13 with individually? MR. COONEY: 14 15 16 May I have the Court's leave for just a moment? Your Honor, just by point of inquiry. The individuals that 17 have scheduling issues, are you going to inquire any further, or 18 is that -- 19 THE COURT: 20 MR. COONEY: 21 THE COURT: 22 Well, I'm tempted -Or just let them go, or what --- to let them go unless I hear a strong objection from counsel. 23 MR. COONEY: 24 MR. EASTEPP: 25 We don't have any objections. If you're specifically talking about 16, family wedding; 17 with the trip with the nonrefundable hotel, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 59 of 245 59 1 and 33, the subpoena in the state court? 2 THE COURT: 3 MR. EASTEPP: I have no objection. 4 MR. COONEY: We have no objection. 5 THE COURT: 6 Those are the three I'm talking about. All right. go. 7 MR. EASTEPP: 8 THE COURT: 9 10 So that will be 16, 17, and 33. our two students? MR. COONEY: 12 THE COURT: 14 Nor to the two students. Mr. Cooney, what's the position of the government vis-a-vis 11 13 So I am going to just let them No objection to the Court releasing them. All right. And that -- so that would be 14 and 23. Anyone else the government might want to visit with? MR. COONEY: 15 Just -- we noticed, Your Honor, that Juror 16 No. 18 in response to your question as to whether she worked 17 with anyone in DHS started to raise her hand, then put her hand 18 down. 19 the problem is I -- I think she was probably going through that 20 in her head. 21 appreciate if we could just ask her if she knows anybody at DHS. 22 She did later talk about working in corrections, which But because we can't read her mind, we would THE COURT: Tony, can we have Juror No. 18 join us? 23 Counsel, while -- before we get her in here, be thinking 24 about 19 and 22, because they're the two that indicated they 25 might have some physical disabilities and -- Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 60 of 245 60 1 (Juror enters.) THE COURT: 2 3 Right here by the podium. Counsel, this is Juror No. 18, and I asked her to step back 4 5 in. Tell me who you work for again. PROSPECTIVE JUROR: 6 7 I work for the Willacy County Regional Detention Facility. THE COURT: 8 9 Come right up here, if you will, ma'am. there? Right. And do you have any interaction I know you don't work for the Department of Homeland 10 Security, but do you have any interaction with the Department of 11 Homeland Security personnel there? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 PROSPECTIVE JUROR: 15 No, sir. What do you do on a day-to-day basis there? I'm an accreditation manager. We have -- it's American Correctional Association. 16 THE COURT: Right. 17 PROSPECTIVE JUROR: We have the set of standards, and 18 I'm the one that's in charge of having all those standards up to 19 date, up to par. 20 THE COURT: All right. And do you deal with any -- in 21 your position as accreditation manager, do you deal with any 22 federal law enforcement agencies or personnel at all? 23 PROSPECTIVE JUROR: 24 THE COURT: 25 Okay. The United States Marshal Service. Other than the Marshal Service, ICE, Border Patrol, Customs, you don't deal with any of those? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 61 of 245 61 PROSPECTIVE JUROR: 1 2 THE COURT: Okay. PROSPECTIVE JUROR: 6 THE COURT: Okay. MR. COONEY: 9 THE COURT: Mr. Eastepp? MR. EASTEPP: 11 THE COURT: 12 PROSPECTIVE JUROR: 13 No, Your Honor. All right. Thank you, ma'am. Thank you. (Juror leaves.) MARSHAL: 14 Your Honor, excuse me, but there is a juror, No. 34, needs to talk to you. THE COURT: 16 Have them come in. 17 you didn't hear, Tony. 18 (Juror enters.) THE COURT: 19 This will be Juror 34 if Come right up here, ma'am. Counsel, this is Juror No. 34, and she asked to visit with 20 22 Mr. Cooney, any questions for Juror No questions, Your Honor. 10 21 No, sir. 18? 8 15 That's what I was really asking, whether you dealt with them. 5 7 The facility does deal with some Border Patrol, but I personally don't. 3 4 No, sir. us. PROSPECTIVE JUROR: Yes. When you asked the question 23 had we been -- anyone been a victim of a crime, I didn't 24 respond; but yes, I have. 25 THE COURT: Okay. What kind of crime have you been a Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 62 of 245 62 1 victim of? PROSPECTIVE JUROR: 2 3 money out of my bank account on two separate occasions. 4 THE COURT: 5 PROSPECTIVE JUROR: 6 THE COURT: 7 PROSPECTIVE JUROR: 8 THE COURT: 9 12 13 All right. And it was a bank employee. And was that in this area? No. All right. And how did you discover that? Did you bounce a check or somebody from the bank call you or -PROSPECTIVE JUROR: 10 11 Someone had forged my name and taken No, no. When the statements came, I saw. THE COURT: And then was it investigated by state authorities, federal authorities? 14 PROSPECTIVE JUROR: 15 THE COURT: 16 PROSPECTIVE JUROR: 17 THE COURT: 18 PROSPECTIVE JUROR: 19 THE COURT: 20 PROSPECTIVE JUROR: 21 THE COURT: 22 PROSPECTIVE JUROR: 23 THE COURT: I just think the local. Police? Yeah. And where was that? When was it? Where was it? In Minnesota. And when was it? Okay. Maybe ten years ago. Is there anything about that 24 experience, although troublesome, but anything about that 25 experience that would make it hard for you to be fair and Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 63 of 245 63 1 impartial to both sides here? PROSPECTIVE JUROR: 2 Well, maybe, because I don't really 3 trust people, you know, in situations where they have, I don't 4 know, authority. MR. EASTEPP: 5 6 Judge, she trailed off and I missed that. I'm sorry. 7 THE COURT: 8 MR. EASTEPP: 9 missed her answer. 10 THE COURT: I didn't hear that. She trailed -- her voice trailed off and I Well, if you need to move, go ahead, 11 Mr. Eastepp. But I think what she said, if I can paraphrase it, 12 is that because of that experience, she has a problem with 13 trusting people. 14 PROSPECTIVE JUROR: 15 THE COURT: 16 Yes. And was it -- is it people in general or people in authority? 17 PROSPECTIVE JUROR: 18 THE COURT: People in authority. All right. And do you think that would 19 affect your ability -- let me ask maybe a series of questions 20 here. 21 to presume Mr. Pedraza to be innocent right now? For instance, do you think that would affect your ability 22 PROSPECTIVE JUROR: 23 THE COURT: I don't know. Would you hold the government -- you know, 24 following my instructions, would you make the government prove 25 Mr. Pedraza's guilt by beyond a reasonable doubt, a standard? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 64 of 245 64 1 PROSPECTIVE JUROR: 2 THE COURT: 3 I'll define that for you, but could you do that? 4 PROSPECTIVE JUROR: 5 THE COURT: 6 MR. COONEY: 7 THE COURT: 8 MR. COONEY: 9 Yes. Yes. Mr. Cooney, any questions? May I ask just one question, Your Honor? Yes. Ma'am, if the Court provides you instructions about the law and the standard on reasonable doubt 10 and on the presumption of innocence, can you follow all of the 11 judge's instructions about that? 12 PROSPECTIVE JUROR: 13 MR. COONEY: 14 THE COURT: 15 MR. EASTEPP: 16 THE COURT: 17 Yes. That's my only question. Mr. Eastepp? Hi, ma'am. Why don't you walk around here so she doesn't have to turn away from the microphone. MR. EASTEPP: 18 Sure. In this case, as the judge briefed 19 you, it's an uncontested point that Mr. Pedraza was in a 20 position of authority as the head of a big law enforcement 21 agency here in the Valley. 22 your answer, how concerned I am about that and what his rights 23 are. 24 25 So you can imagine as his lawyer, And I don't want him starting behind with you. Is he starting behind with you, meaning you've already prejudged him because he's in a position of authority and you've Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 65 of 245 65 1 2 3 4 5 made some assumptions? PROSPECTIVE JUROR: don't know. MR. EASTEPP: By that answer, are you uncomfortable sitting? PROSPECTIVE JUROR: 7 MR. EASTEPP: 8 PROSPECTIVE JUROR: 9 MR. EASTEPP: 11 12 13 14 I mean, to be honest, I I've never been in this position. 6 10 I may. THE COURT: Yes. Would you prefer not sitting? Yes. That's all I have. All right. Thank you, ma'am. (Juror leaves.) THE COURT: Mr. Cooney, anybody else that the government would like to visit with? MR. COONEY: Your Honor, simply Juror No. 43 put on his 15 form that he's an employee of the U.S. Postal Service but did 16 not answer the question about federal government employment that 17 Your Honor asked. Could we just -- 18 THE COURT: 19 MR. COONEY: 20 (Juror enters.) 21 THE COURT: Why don't we have him come in. 43. Thank you. Counsel, this is Juror No. 43. And I asked 22 him to step back in because I wanted to make sure that I am 23 clear about how you're employed. 24 postal system? 25 PROSPECTIVE JUROR: Are you -- do you work for the I'm retired. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 66 of 245 66 1 THE COURT: Okay. 2 PROSPECTIVE JUROR: 3 THE COURT: 4 the postal system? All right. 5 PROSPECTIVE JUROR: 6 THE COURT: 7 I'm in the farming business. Okay. And how long did you work for 36 years. So you're a lifetime employee of the postal service? 8 PROSPECTIVE JUROR: 9 THE COURT: Yes, sir. Is there anything about your position as a 10 postal worker that would interfere with your ability to be fair 11 and impartial to both sides here? 12 PROSPECTIVE JUROR: 13 THE COURT: 14 Okay. MR. COONEY: 16 THE COURT: 17 MR. EASTEPP: 18 THE COURT: 19 PROSPECTIVE JUROR: 21 22 23 24 25 Mr. Cooney, any questions for Juror No. 43? 15 20 No, sir. No questions, Your Honor. Mr. Eastepp? No, sir. All right. Thank you, sir. Yeah. (Juror leaves.) MARSHAL: Your Honor, there's two other jurors. No. 15 and No. 27 need to speak with you. THE COURT: Okay. Hold on just a second. Anybody else from the government, Mr. Cooney? MR. COONEY: No one else, Your Honor. Juror Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 67 of 245 67 1 THE COURT: 2 MARSHAL: 3 THE COURT: 4 15 did you say, Tony? 15 and 27, sir. All right. Let's have 15 then. (Juror enters.) 5 THE COURT: Come right up here, ma'am. 6 PROSPECTIVE JUROR: I know I was supposed to say this, 7 but I was a little embarrassed. 8 got one two weeks ago. 9 so I don't know if that would affect. 10 11 12 THE COURT: I get epileptic seizures, and I So I'm a little bit weak and tired, and And do these seizures happen spontaneously? I mean without you knowing they're about to happen? PROSPECTIVE JUROR: No, yes. I do know. I just have, I 13 would say, like two minutes so I can like tell someone, "You 14 know what? 15 yeah, I do get them a little strong sometimes. 16 I'm not feeling well. THE COURT: I have to go sit out." And, I faint. And is it something where you could be 17 listening to the testimony; and then if you felt a seizure 18 coming on, that you could inform me about it? 19 PROSPECTIVE JUROR: 20 THE COURT: 21 PROSPECTIVE JUROR: 22 THE COURT: 23 PROSPECTIVE JUROR: 24 THE COURT: 25 PROSPECTIVE JUROR: Yes, I can. And we can take a break? Yes. Do they last a long time? Sometimes, yeah, like five minutes. By court standards, that's not a long time. Well, the seizure -- I mean, when I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 68 of 245 68 1 get the seizure, it lasts like for five minutes, and then I'm 2 very weak. THE COURT: 3 4 I can barely walk. Okay. MR. COONEY: 6 MR. EASTEPP: 7 THE COURT: 8 Counsel, do either of you No, Your Honor. No, Your Honor. Thank you, ma'am. (Juror leaves.) THE COURT: 9 10 MARSHAL: 11 THE COURT: 13 All right. have any questions for Juror No. 15? 5 12 I can't talk. 27, was that the other one, Tony? Yes, sir, and also Juror 33. Standing room only? All right. Let's have 27. (Juror enters.) PROSPECTIVE JUROR: 14 Just thought I'd let you know, I'll 15 be getting married on the 29th, just in case it takes longer 16 than a week or two. 17 THE COURT: 18 PROSPECTIVE JUROR: 19 THE COURT: 20 It's not going to take that long. Then nothing. Counsel, do either of you have any -- wait, wait. 21 PROSPECTIVE JUROR: 22 THE COURT: 23 Okay. I'm sorry. Either of you have any questions for Juror No. 27? 24 MR. EASTEPP: 25 MR. COONEY: No, sir. No, Your Honor. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 69 of 245 69 1 THE COURT: 2 PROSPECTIVE JUROR: 3 Thank you, sir. Thank you. (Juror leaves.) THE COURT: 4 5 All right. Let's hold off on 33. about from the defense? MR. EASTEPP: 6 Mr. Eastepp, what Any jurors you'd wish to talk to? Judge, there are two that work at the same 7 place, No. 20 and No. 28. Mr. Pedraza recognizes the name. 8 one of them, No. 20, it's one of these agencies that help 9 undocumented aliens, and they do at times deal with the DHS. And I 10 assume it's like if they've got a complaint that a Border Patrol 11 agent was unfair to an undocumented alien, those sorts of 12 things. 13 been there very long. 14 28. THE COURT: 15 16 17 Neither one of them raised their hand. And 20 has not She's probably not nearly a concern as Why don't we start with 28, and we'll bring them in. Tony, if we can have 28. 18 MARSHAL: Sure. 19 THE COURT: And, counsel, the reason I didn't have him 20 bring 33 in is we've already made the decision to strike him, 21 so -- 22 (Juror enters.) THE COURT: 23 24 25 Come right up here, ma'am. Right to the podium. Counsel, this is Juror No. 28, and I asked her to step in Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 70 of 245 70 1 because I really wanted to figure out where is it you work? 2 PROSPECTIVE JUROR: 3 THE COURT: 4 PROSPECTIVE JUROR: 5 Tell me what that is. I work with immigrant youth, youth that are coming in from Guatemala, Honduras, places like that. 6 THE COURT: 7 PROSPECTIVE JUROR: 8 THE COURT: 9 I work with Southwest Key Programs. Are these undocumented people? Undocumented immigrants. All right. In that -- and tell me exactly what you do for them or with them. 10 PROSPECTIVE JUROR: 11 THE COURT: 12 PROSPECTIVE JUROR: 13 THE COURT: I'm actually a teacher. And what do you teach? Okay. I teach all subjects. And is it -- do you have a regular 14 school program that you work with? 15 PROSPECTIVE JUROR: 16 THE COURT: 17 PROSPECTIVE JUROR: 18 We work Monday through Friday. I'm sorry? We work Monday through Friday, and it's year round. 19 THE COURT: Okay. 20 PROSPECTIVE JUROR: 21 THE COURT: Uh-huh. We thought that's what Southwest Key 22 programs did. 23 have any contact with Border Patrol, ICE, any of the government 24 agencies? 25 Now, in your position as a teacher there, do you PROSPECTIVE JUROR: No, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 71 of 245 71 1 THE COURT: 2 PROSPECTIVE JUROR: 3 THE COURT: 4 5 6 Okay. All right. PROSPECTIVE JUROR: Okay, no. No. I mean, our program has contact with ICE and Border Patrol because -THE COURT: 8 PROSPECTIVE JUROR: 10 That's what I wanted to be sure of. 7 9 No. That's what we thought. Uh-huh, but I don't. I have nothing to do with any of the Border Patrol or any of those agencies. THE COURT: All right. Is there anything about your 11 position there that would make it hard for you to be -- hard for 12 you to be fair and impartial to both sides here? 13 PROSPECTIVE JUROR: 14 THE COURT: 15 MR. COONEY: 16 THE COURT: 17 MR. EASTEPP: 18 THE COURT: 19 PROSPECTIVE JUROR: 20 21 22 23 24 25 No, Your Honor. All right. Mr. Cooney, any questions? No questions. Mr. Eastepp? No, sir. All right. Thank you, ma'am. Thank you. (Juror leaves.) THE COURT: Tony, if we could have 20. (Juror enters.) THE COURT: Counsel, this is Juror No. 20, and she works at the Southwest Key Program. What is it you do there, ma'am? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 72 of 245 72 1 PROSPECTIVE JUROR: 2 THE COURT: 3 PROSPECTIVE JUROR: 4 5 6 And tell me what a case manager does. THE COURT: All right. And in that, do you have interaction with the Department of Homeland Security? PROSPECTIVE JUROR: 8 THE COURT: 10 Receive children from DHS and reunify with their families. 7 9 I'm a case manager. No. All right. That's what I was trying to figure out. PROSPECTIVE JUROR: Right. No, we just receive the 11 children and we get their paperwork, and it's just -- we just 12 process them. 13 we have no interaction with the agency. 14 We speak to their -- the children's families, but THE COURT: So this would be like an undocumented minor 15 that ended up here in the United States, and you would make sure 16 they got to a relative or a parent? 17 PROSPECTIVE JUROR: 18 THE COURT: 19 Right. All right. And that -- is that primarily what you do? 20 PROSPECTIVE JUROR: 21 THE COURT: Uh-huh. All right. I just started, yes. In that position, is there 22 anything about that position that would make it hard for you to 23 be fair and impartial to both sides here? 24 PROSPECTIVE JUROR: 25 THE COURT: No. All right. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 73 of 245 73 1 PROSPECTIVE JUROR: 2 THE COURT: Not at all. As I take it, you don't really have any or 3 at least minimal interaction with the Department of Homeland 4 Security? 5 PROSPECTIVE JUROR: Right. We don't -- we just have 6 this -- the paperwork that they bring in is what we go by, and 7 it's just -- we have no interaction or anything with them. 8 9 THE COURT: All right. this juror? 10 MR. COONEY: 11 THE COURT: 12 MR. EASTEPP: 13 THE COURT: 14 Mr. Cooney, any questions for No questions, Your Honor. Mr. Eastepp? No, sir. All right. Thank you, ma'am. (Juror leaves.) 15 THE COURT: Anyone else, Mr. Eastepp? 16 MR. EASTEPP: 17 THE COURT: No, sir. All right. Let's talk about -- got a couple 18 extra jurors we need to discuss here. 19 No. 15, the lady that is subject to having epileptic seizures. 20 What's the feeling of the -- 21 Let's start with Juror I mean, we actually have four individuals. We have No. 15, 22 we have No. 19, who has the knee problems, No. 22 who has legs 23 that get numb, and then we have No. 46, who we may or may not 24 reach, who has the limitations with English. 25 if we strike all four of them. It's fine with me Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 74 of 245 74 1 MR. EASTEPP: 2 MR. COONEY: 3 THE COURT: I have no objection. We have no objection either, Your Honor. All right. Let's go over who we have -- who 4 the Court is going to strike, and then I'll hear your 5 suggestions on any other challenges for cause. 6 I'm going to strike -- and some of these we've already 7 talked about, but 1, 11, 14, 15, 16, 17, 19, 22, 23, 33, 34, 46, 8 and that's it. 9 All right. That having been said, Mr. Cooney, is there 10 anyone that the government in addition to those wishes the Court 11 to strike for cause? 12 MR. COONEY: 13 THE COURT: 14 No, Your Honor. Mr. Eastepp, how about on Mr. Pedraza's behalf? 15 MR. EASTEPP: 16 THE COURT: 17 All right. No, Your Honor. All right. Let's see where we are, Cristi. Gentlemen, here's what we have. Of course, the 18 government gets six strikes. 19 regular jurors are Jurors No. 2 through 39. 20 40 through 43, and each of you get one strike with regard to the 21 alternates. 22 All right. The defendant gets ten. Our Our alternates are I'm going to -- Tony is the -- is the -- well, 23 is there anybody just outside the door there between the two 24 doors? 25 step outside to one of those rooms out there where you can talk, I was going to suggest that Mr. Eastepp and Mr. Pedraza Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 75 of 245 75 1 and the government can stay here because there's more of them. 2 And I'll give y'all about 15 minutes. 3 (Recess taken from 11:03 to 11:43.) THE COURT: 4 5 All right. All right. Be seated, please. Ladies and gentlemen, I'm going to call out the 6 juror numbers of the individuals that have been selected. 7 when I call your number, if you will be seated in the jury box 8 where Cristi is standing right there. 9 And Juror No. 4, Juror No. 7, Juror No. 9, Juror No. 10, Juror 10 No. 13, Juror No. 20, Juror No. 24, Juror No. 26, Juror No. 29, 11 Juror No. 31, Juror No. 35, Juror No. 37, Juror No. 40 and Juror 12 No. 42. 13 14 Hold on. I'm missing one. Hold on. 16 All right. 18 No, it's 40 and 42. of you that weren't chosen to go with Tony. (Remainder of jury panel exits courtroom.) THE COURT: 20 (Hand raised.) 21 THE COURT: 23 Oh, there we go. Ladies and gentlemen, I'm going to excuse those 19 22 Let me recall these. 4, 7, 9, 10, 13, 20, 24, 26, 29, 31, 35, 37, 40 and 42. 15 17 All right. Juror No. 31, are you there? There we go. We always have a problem when lawyers try to do math. All right. Ladies and gentlemen, you have been selected as 24 the jury of this case, so I want you to each rise and raise your 25 right hand. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 76 of 245 76 1 (Jury sworn.) THE COURT: 2 3 All right. All right. Be seated. Ladies and gentlemen, here's what I think I want 4 to do. 5 law to read you some preliminary instructions. Then the lawyers 6 get a chance to make their opening statements. Then we'll start 7 evidence. 8 9 We're going to start the case. First I'm required by It's really now like 11:50, and so I think the easiest thing to do is go ahead and break now for lunch so we don't have to 10 break later. 11 we can start at 1:00. 12 When you come back, I want you to report to my jury room. 13 my jury room is actually right behind you, behind that wall 14 where you're sitting, and they're going to walk you out so you 15 can see where it is. 16 I'm going to ask y'all to be back here at 1:00 so So try to be back here by 12:55, 12:50. If you forget, don't worry about it. I'm Judge Hanen. Now, Just 17 ask any of the gentlemen in the blue coats. 18 security officers. 19 talking to a witness. 20 lawyer or the defendant or anybody involved with the case. 21 so the safest thing to do is if you have any questions at all, 22 ask one of the court security officers. 23 They're our court And that way you won't accidentally be You don't want to talk to a witness or a And Now, the lawyers, they're not going to talk to you either. 24 They know they're not supposed to, so if they -- don't think 25 they're unfriendly or -- you know, "Gee, I said hi and he didn't Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 77 of 245 77 1 say hi back," or whatever. 2 you, so don't hold that against them. 3 The lawyers know they can't talk to I'm going to also instruct you; and as I said, I'm going to 4 give you lengthier instructions. 5 about this case with anyone: 6 not your employer, not with each other. 7 can call your spouse and say: 8 or your employer, whoever you need to inform. 9 about the merits of the case at all with anyone. 10 All right. But, you know, don't talk Not your family, not your friends, You know, obviously you Hey, I got picked for jury duty, But don't talk I'm going to let y'all go with the court 11 security officer. 12 just now 11:50, and I want y'all to be back in about an hour so 13 we can start promptly at 1:00. 14 15 He'll show you where my jury room is. It's Thank y'all. (Jury leaves courtroom) THE COURT: All right. Counsel, I'd like y'all to 16 remain here for about five minutes. 17 Likewise, obviously I want y'all back here by about 12:50 so we 18 can start promptly at 1:00. 19 instructions. 20 21 22 I'll read the preliminary How much time do you need for opening arguments? MR. KIDD: Your Honor, the government anticipates using about 25 to 30 minutes. 23 MR. EASTEPP: 24 THE COURT: 25 Then y'all are excused. I doubt I'll take that long. All right. I'll give each side 30 minutes. And if you give some back, I'm sure the jury will be grateful, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 78 of 245 78 1 2 as will I. I'm going to go dismiss the rest of the jurors, so I'd like 3 y'all to stay here for three or four minutes. 4 head start. 5 Okay. 6 9 And then we'll see you back here at about 12:50. Thank y'all. (Recess taken from 11:50 to 12:07.) THE COURT: 7 8 Let them get a Be seated. Before we bring the jury in, I want to cover a few points as far as -- I won't say they're discrepancies, but they're 10 differences between what the government has proposed as jury 11 instructions and what the indictment says. 12 just be a matter of proof. 13 prove or what it thinks it can prove, and the indictment is 14 broader than that. And some of it may The government knows what it can 15 Specifically -- and the reason I want to know this is 16 because I want to know whether to mention it to the jurors on 17 opening instructions. 18 Count 6 allege obstruction, whatever you want to call it, with 19 regard to MOAs, memorandum of activity, and supervisory case 20 review worksheets. 21 regard to the supervisory case review sheets? 22 23 24 25 Count 2 alleges -- I'm sorry, Count 4 and Now, is that still a live allegation with MR. KIDD: Your Honor, what counts are you referring to THE COURT: That would be counts -- the one I just said again? would be Counts 2 -- I'm sorry, Counts 4 and 6. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 79 of 245 79 MR. KIDD: 1 2 point. Yes, Your Honor, that is still live at this And that's 4 and 6, correct? 3 THE COURT: 4 MR. KIDD: 5 THE COURT: Correct. Yes, Your Honor. And then on Counts 10 and 11, the indictment 6 alleges memorandum of activity -- memoranda of activity and 7 abbreviated reports of investigation. 8 of investigation still in play? 9 MR. KIDD: Are abbreviated reports They are, Your Honor. 10 THE COURT: 11 MR. KIDD: 12 THE COURT: All right. It's a single document. And then -- well, it's a single document, so 13 it's different, or it's the same thing? 14 activity also an abbreviated report of investigation? 15 MR. KIDD: Is a memorandum of I apologize, Your Honor. There is a single 16 memoranda of activity, and there is a single abbreviated report 17 of investigation. 18 THE COURT: All right. Then with regard to all of 19 the -- by all of the counts, I mean 2, 4, 6, 10 and 11, there's 20 also alleged or that they made false entries in a record, 21 specifically the case files, for multiple criminal 22 investigations. 23 4, 6, 10 and 11. 24 25 Now, that is alleged as to all -- in Counts 2, MR. KIDD: allegation. Is that still a live allegation? That is correct, Your Honor, still a live Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 80 of 245 80 THE COURT: 1 2 All right. And then Count 13 specifically goes to the supervisory case review worksheets, correct? 3 MR. KIDD: That is correct, Your Honor. 4 THE COURT: And Count 12 is the obstruction with 5 regard -- and this is after the Court's earlier ruling, the 6 investigation before the grand jury in D.C.? 7 MR. KIDD: 8 THE COURT: 9 10 11 All right. That is correct, Your Honor. Tony, do we have all the jurors? 13 THE COURT: 18 Yes, sir. Will you ask the jury to join us then? (Jury enters courtroom) THE COURT: 15 17 I wanted to make sure. we bring the jury in and I begin with preliminary instructions? MARSHAL: 16 All right. Is there anything else we need to take up before 12 14 Okay. All right. Ladies and gentlemen, be seated. I hope you had a pleasant lunch or at least as pleasant as you can have, given the fact it's cold and rainy outside. Ladies and gentlemen, you are now the jury in this case, and 19 I want to take a few minutes to tell you something about your 20 duties as jurors and to give you some instructions. 21 of the trial, I will give you more detailed instructions. 22 must follow all of my instructions in doing your job as jurors. 23 At the end Let me tell you, I have to read these instructions. You The law 24 requires me to read them now and to read them at the end of the 25 trial. At the end of the trial, the instructions will be Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 81 of 245 81 1 longer, but I'm also going to give them to you in writing. 2 this is not going to be a memory test. 3 down to actually having to deliberate and decide the case, 4 you're going to have the written instructions with you. 5 So When you -- when you get This criminal case has been brought by the United States 6 Government. I may sometimes refer to the government as the 7 prosecution. 8 represented at this trial by Department of Justice attorneys 9 Brian Kidd and J.P. Cooney. And as I told you this morning, the government is 10 The defendant, Eugenio Pedraza, sometimes referred to as 11 Gene or Eugene Pedraza, is represented by Mr. Larry Eastepp. 12 The case involves evaluations -- allegations against the 13 defendant for alleged actions he took as special agent in charge 14 of the McAllen, Texas, field office of the Department of 15 Homeland Security-Office of Inspector General, which from here 16 on out I will probably prefer to as DHS-OIG, which, quite 17 frankly, those abbreviations are almost as hard to pronounce as 18 the whole title, so I don't know if that saves us anything. 19 The defendant has been charged by the government with eight 20 separate violations of federal criminal law. 21 against the defendant are contained in the indictment. 22 The charges The indictment charges the defendant in Count 1 with 23 conspiracy to falsify documents relating to several active 24 criminal investigations in anticipation of an internal 25 inspection of DHS-OIG's field office in McAllen. It also Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 82 of 245 82 1 charges in Counts 2, 4, 6, 10, 11 and 13 that the defendant 2 committed as well as aided and abetted others in committing 3 knowingly falsification of records in federal investigations. 4 Lastly in Count 12, the indictment charges that the defendant -- 5 charges the defendant with committing as well as aiding and 6 abetting others in committing obstruction of justice in relation 7 to an official proceeding. 8 9 Now, the indictment is simply a description of the charges made by the government against the defendant. It's not evidence 10 the defendant committed a crime. 11 guilty to the charges. 12 not be found guilty by you unless all of you unanimously find 13 that the government has proved the defendant's guilt beyond a 14 reasonable doubt. 15 The defendant pleaded not A defendant is presumed innocent and may Now, the first step in the trial will be the opening 16 statements. 17 you about the evidence which it intends to put before you so 18 that you will have an idea of what the government's case is 19 going to be. 20 the opening statement evidence. 21 understand what the evidence will be and what the government 22 will try to prove. 23 The government in its opening statement will tell Just as the indictment is not evidence, neither is Its purpose is only to help you After the government's opening statement, the defendant's 24 attorney may make his opening statement. And again at this 25 point in the trial, no evidence has been offered by either side. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 83 of 245 83 1 Next the government will offer evidence that it claims 2 support the charges against the defendant. 3 evidence may consist of the testimony of witnesses as well as 4 documents and exhibits. 5 The government's Some of you have probably heard the term circumstantial and 6 direct evidence. 7 to consider all of the evidence given in the trial. 8 9 Do not be concerned with these terms. You are After the government's evidence, if they have not already done so, the defense may make an opening statement. The defense 10 may then present evidence, but they're not required to do so. 11 remind you, the defendant is presumed innocent and that the 12 government must prove his guilt beyond a reasonable doubt. 13 defendant does not have to prove his innocence. 14 defendant decides to present evidence, then the government may 15 introduce rebuttal evidence. 16 The If the After you've heard all the evidence, I shall instruct you 17 about the rules of law which you are to use in reaching your 18 verdict. 19 government and the defense will each be given time for their 20 final arguments. 21 statements by the attorneys, the closing arguments are not 22 evidence either. 23 to them. 24 25 Once I've given you my instructions on the law, the Just as I told you about the opening Nevertheless, you should pay close attention Finally after hearing my instructions and the final arguments of the attorneys, you will leave the courtroom I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 84 of 245 84 1 together to make your decision. 2 secret, and you will never have to explain your verdict to 3 anyone. 4 All right. Your deliberations will be Now that I've described the trial, let me 5 explain the jobs that you and I perform during the trial. 6 decide which rules of law apply to the case in response to 7 questions or objections raised by the attorneys as we go along 8 and also in the final instructions given to you after the 9 evidence and arguments are completed. 10 11 I You must follow the law as I explain it to you whether you agree with it or not. You and you alone are the judges of the facts. Therefore, 12 you should give careful attention to the testimony and exhibits, 13 because based upon this evidence, you will decide whether the 14 government has proved beyond a reasonable doubt that the 15 defendant committed the crimes charged in the indictment. 16 must base that decision only on the evidence presented here in 17 the case and my instructions about the law. 18 the evidence and the instructions with you when you deliberate. 19 You You will have both You will note we have an official court reporter, Barbara 20 here, making a record of the trial. However, we will not have 21 typewritten transcripts available for your use in reaching a 22 decision on the case. 23 attention to the evidence because you won't be able to refer to 24 Barbara's notes. 25 trial, you may do so. Therefore, you need to pay close If you would like to take notes during the And I think we put a pad and a pencil on Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 85 of 245 85 1 2 each of your chairs. On the other hand, you are not required to take notes if you 3 prefer not to do so. Each of you should make your own decision 4 about this. 5 so involved in the note taking that you become distracted from 6 the ongoing proceedings. 7 memory aids. 8 your independent recollection of the evidence. 9 take notes, you should rely on your own independent recollection If you decide to take notes, be careful not to get Your notes should only be used as You should not give your notes precedence over If you do not 10 of the proceedings, and you should not be unduly influenced by 11 the notes of the other jurors. 12 Notes are not entitled to any greater weight than the memory 13 or impression of each juror as to what the testimony may have 14 been. 15 express your own opinion as to the facts in the case. 16 Whether you take notes or not, each of you must form and It will be up to you to decide which witnesses to believe, 17 which witnesses not to believe, and how much of any witness' 18 testimony to accept or reject. 19 for determining the credibility of the witnesses at the end of 20 the case. I will give you some guidelines 21 All right. I'm now going to explain the counts in the 22 indictment to you. 23 missing counts, and we're skipping some numbers, just belong to 24 things that aren't applicable to this trial, so don't be 25 confused by the gaps in the numbering of the counts. But before I do so, I want to note that any Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 86 of 245 86 1 All right. The first count: Regarding the first count of 2 the indictment charging a conspiracy to falsify documents in 3 anticipation of an internal inspection of DHS-OIG's field office 4 in McAllen, Title 18, United States Code, Section 371 makes it a 5 crime for anyone to conspire with someone else to commit an 6 offense against the laws of the United States. 7 Count 1 that from on or about February of 2011 to on or about 8 January of 2012, the defendant conspired to falsify documents 9 and to make entries in records with the intent to impede, It is charged in 10 obstruct and influence the investigation and proper 11 administration of a matter within the jurisdiction of DHS-OIG. 12 The alleged purposes of the conspiracy were to conceal 13 alleged lapses in DHS-OIG's investigative standards and internal 14 policies from DHS-OIG personnel conducting the internal 15 inspection of the McAllen office. 16 The alleged means and methods of the conspiracy allegedly 17 were to falsify and backdate documents and place them in the 18 McAllen office's criminal investigation case files for possible 19 review by DHS-OIG personnel conducting the internal inspection. 20 The alleged documents included but were not limited to backdated 21 memorandum of activity that falsely -- allegedly falsely 22 reflected investigative activity that did not in truth and fact 23 occur so that gaps of inactivity in the investigation were 24 filled, backdated supervisory case review worksheets that 25 allegedly falsely reflected case reviews that did not in truth Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 87 of 245 87 1 and fact occur, and backdated FBI notification letters that were 2 not in truth and fact sent to the FBI. 3 The indictment charges that the defendant, in violation of 4 federal law and in furtherance of the conspiracy, committed 5 multiple overt acts relating to several criminal investigations 6 for which the McAllen office was responsible, including the sum 7 of the acts in underlying other counts, which I'll explain in 8 detail in a moment. 9 Under law -- under the law, a conspiracy is an agreement of 10 two or more persons to join together to accomplish some unlawful 11 purpose. 12 member becomes the agent of every other member. 13 It is a kind of partnership in crime in which each One may become a member of a conspiracy without knowing all 14 the details of the unlawful scheme or the identities of the 15 other alleged conspirators. 16 unlawful nature of a plan or scheme and knowingly and 17 intentionally joins in that plan or scheme on one occasion, that 18 is sufficient to convict a defendant for conspiracy, even though 19 the defendant had not participated before, and even though the 20 defendant played only a minor part. 21 If a defendant understands the The government need not prove that the alleged conspirators 22 entered into any formal agreement, nor that they directly stated 23 between themselves all the details of the scream. 24 the government need not prove that all of the details of the 25 scheme were actually agreed on or carried out, nor must it prove Similarly, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 88 of 245 88 1 that all of the persons or entities alleged to have been members 2 of the conspiracy were such, or that the alleged conspirators 3 actually succeeded in accomplishing their unlawful objectives. 4 Now, mere presence at the scene of an event, even with the 5 knowledge that a crime is being committed or the mere fact that 6 certain persons may have associated with each other and may have 7 assembled together and discussed common aims and interests, does 8 not necessarily establish proof of the existence of a 9 conspiracy. 10 Also a person who has no knowledge of a conspiracy, but who 11 happens to act in a way which advances some purpose of the 12 conspiracy, does not thereby become a conspirator. 13 find the defendant guilty of this crime, you must be convinced 14 that the government has proved each of the following elements 15 beyond a reasonable doubt. 16 For you to First, that the defendant and at least one other person made 17 an agreement to commit the crime of falsification of records as 18 charged in the indictment. 19 Second, that the defendant knew of the unlawful purpose of 20 the agreement and joined in it willfully; that is, with the 21 intent to further the unlawful purpose. 22 prove that Defendant agreed to personally commit the unlawful 23 acts. 24 overall objective. 25 The government need not It only needs to prove the defendant's agreement to the Third, that one of the conspirators during the existence of Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 89 of 245 89 1 the conspiracy knowingly committed at least one of the overt 2 acts described in the indictment in order to accomplish some 3 object or purpose of the conspiracy. All right. 4 Those are the instructions with regard to Count 5 1. 6 you, so this is not a memory test. 7 And as I said, you're going to have these instructions with All right. With regard to the remaining seven counts that 8 you're going to be considering, the government has alleged both 9 that the defendant committed and that he aided and abetted 10 others in committing the charged offenses. 11 aiding and abetting, the guilt of a defendant in a criminal case 12 may be established without proof that the defendant personally 13 did every act constituting the offense alleged. 14 Under the law of The law recognizes that ordinarily anything a person can do 15 for himself may also be accomplished by him through the 16 direction of another person as his or her agent or by acting in 17 concert with or under the direction of another person or persons 18 in a joint effort or enterprise. 19 under the direction of the defendant or if the defendant joins 20 another person and performs acts with the intent to commit a 21 crime, then the law holds the defendant responsible for the acts 22 and conduct of such other persons just as though the defendant 23 had committed the acts or engaged in such conduct himself. 24 25 If another person is acting Before any defendant may be held criminally responsible for the acts of others, it is necessary that the accused Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 90 of 245 90 1 deliberately associate himself in some way with the crime and 2 participate in it with the intent to bring about the crime. 3 you to find the defendant guilty of the offense of aiding and 4 abetting another to commit the offense, the government must 5 prove each of the following elements beyond a reasonable doubt. 6 First, that the offense was committed by some person. 7 Second, that the defendant associated with the criminal 8 9 10 11 12 13 For venture. Third, that the defendant purposely participated in the criminal venture. And fourth, that defendant sought by action to make the venture successful. To associate with a criminal venture means that the 14 defendant shared the criminal intent of the principal. 15 element cannot be established if the defendant had no knowledge 16 of the principal's criminal venture. 17 This To participate in a criminal venture means that the 18 defendant engaged in some affirmative conduct designed to aid 19 the venture or assisted the principal of the crime. 20 All right. Now, the second, fourth, sixth, tenth, and 21 eleventh counts are very similar to each other. Regarding the 22 second, fourth, sixth, tenth and eleventh counts relating to the 23 alleged falsification of records in federal investigations, 24 Title 18, United States Code, Section 1519 makes it a crime for 25 anyone to knowingly alter, destroy, mutilate, conceal, cover-up, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 91 of 245 91 1 falsify or make a false entry in any record, document or 2 tangible object with the intent to impede, obstruct or influence 3 the investigation or proper administration of any matter within 4 the jurisdiction of any department or agency of the United 5 States. 6 For you to find the defendant guilty of the crime charged 7 under Counts 2, 4, 6, 10 and 11, you must be convinced that the 8 government has proved each of the following beyond a reasonable 9 doubt. 10 First, that the defendant falsified documents; specifically 11 with regards to Count 2, a memorandum of activity. With regards 12 to Count 4 and 6, memorandum of activity and supervisory case 13 review worksheets. 14 memorandum of activity and abbreviated reports of investigation. 15 And with regard to all of the Counts 2, 4, 6, 10 and 11, that 16 false entries in a record, specifically the case files for the 17 multiple criminal investigations, were made. With regards to 10 and 11, Counts 10 and 11, 18 Second, that the defendant acted knowingly. 19 And third, that the defendant acted with the intent to 20 impede, obstruct or influence the investigation or proper 21 administration of any matter within the jurisdiction of an 22 agency or department of the United States, specifically criminal 23 investigations and an internal inspection of the McAllen DHS-OIG 24 office, both alleged to be -- alleged to be within the 25 jurisdiction of the DHS-OIG or in relation to or in Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 92 of 245 92 1 2 contemplation of any such matter or case. Now, in the 13th count, the defendant is accused of 3 violating Title 18, United States Code, Section 1519, the same 4 statute I just discussed, relating to destructing, concealing or 5 falsifying records in a federal investigation. 6 the defendant guilty of Count 13, you must be convinced that the 7 government has proved each of the following beyond a reasonable 8 doubt. 9 For you to find First, that the defendant destroyed or concealed documents 10 and records; namely, falsified supervisory case review 11 worksheets. 12 Second, that the defendant acted knowingly. 13 And third, that the defendant acted with the intent to 14 impede, obstruct or influence the investigation or proper 15 administration of any matter within the jurisdiction of an 16 agency or department of the United States, specifically a matter 17 within the jurisdiction of the Federal Bureau of Investigation 18 as alleged in the indictment or in relation to or in 19 contemplation of any such matter or case. 20 With regard to Count 12, Count 12 relates to -- to 21 obstruction of justice. Title 18, United States Code, Section 22 1512(c)(1) makes it a crime to corruptly alter, destroy or 23 conceal a record or document or attempt to do so with the intent 24 to impair the record or document's integrity or availability for 25 use in an official proceeding. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 93 of 245 93 1 In Count 12, the government alleges that the defendant 2 caused falsified supervisory case review worksheets to be 3 removed from the McAllen office's case files with the intent to 4 impair the record or document's integrity or availability for a 5 grand jury investigation. 6 For you to find the defendant guilty of this crime, you must 7 be convinced that the government has proved each of the 8 following beyond a reasonable doubt. 9 First that the defendant altered, destroyed or concealed the 10 record or document; namely, by causing falsified supervisory 11 case review worksheets to be removed from McAllen's office's 12 case files as alleged in the indictment, or at least he 13 attempted to do so. 14 Second, that the defendant acted corruptly. 15 And third, that the defendant acted with the intent to 16 impair the record or document's integrity or availability for 17 use in an official proceeding; namely, an investigation before a 18 grand jury. 19 Those are the charges that you're going to have to work 20 through as you decide this case. 21 complicated when you hear me read it, but you'll have this in 22 front of you as you go through it. 23 in writing, you'll understand, and it's not going to be that 24 complicated. 25 And as I said, it's And I think once you see it Now let me give you some general instructions about the case Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 94 of 245 94 1 itself. 2 witness or with the defendant or with any of the attorneys in 3 the case. 4 all. 5 with the case. 6 of impropriety, do not engage in any conversation with anyone in 7 or about the courtroom or courthouse. 8 remain in the jury room during breaks in the trial and not 9 linger in the halls. 10 During the course of the trial, do not talk with any Please do not talk with them about any subject at You may be unaware of the identity of everyone connected Therefore, in order to avoid even the appearance It is best that you In addition, during the course of the trial, do not talk 11 about the trial with anyone else: 12 friends, not the people with whom you work. 13 this case among yourselves until after I have instructed you on 14 the law at the end of the trial and you've gone to the jury room 15 to make your decision. 16 Not your family, not your Also do not discuss Otherwise without realizing it, you may start forming 17 opinions before the trial is over. It's important you wait 18 until all the evidence is received and you've heard my 19 instructions on the rules of law before you deliberate among 20 yourselves. 21 Let me add that during the course of the trial you will -- 22 you will receive all of the evidence you may properly consider 23 to decide the case. 24 any information on your own which you think might be helpful. 25 Do not engage in any outside reading. Because of this, do not attempt to gather Do not research the case Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 95 of 245 95 1 or the individuals or the entities by any means including the 2 Internet. 3 parties involved in this case or the facts of the case on 4 Google, Yahoo!, Wikipedia, Facebook, or any other Internet 5 search engine. 6 any of the places mentioned in the case, and do not in any other 7 way try to learn about the case outside the courtroom. 8 9 By that I mean do not research anything about the Also do not intend -- do not attempt to visit Also I'm going to instruct you not to post any -- make any Internet postings about the case. 10 Don't do anything about it. 11 case is over. Don't Facebook about it. Let it go. Wait until after the 12 Now that the trial has begun, you must not read about it in 13 the newspaper or watch or listen to television or radio reports 14 about what's happening here. 15 I'm certain you will understand, is that your decision must be 16 made solely on the evidence presented here at the trial. 17 Now, at times during the trial, a lawyer may make an And the reason for these rules, as 18 objection to a question asked by another lawyer or to an answer 19 by a witness. 20 that I make a decision on a particular rule of law. 21 any conclusion from such objections or from my rulings on the 22 objections. 23 determine, and they should not influence your thinking at all. 24 25 This simply means that the lawyer is requesting Do not draw These relate only to legal questions that I must If I sustain an objection to a question, the witness may not answer it. Do not attempt to guess what the answer might have Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 96 of 245 96 1 been, had I allowed the question to answered. 2 tell you not to consider a particular statement, you should put 3 that statement out of your mind, and you may not refer to that 4 statement in your later deliberations. 5 6 7 Similarly, if I If an objection is overruled, you can treat the answer just like any other answer. During the course of the trial, I may ask a question of a 8 witness. If I do that, this does not indicate that I have any 9 opinion about the facts in the case. Nothing I say or do should 10 lead you to believe that I have any opinion about the facts, nor 11 be taken as indicating as to what your verdict should be. 12 That's your job. 13 That's why you're here. During the trial I may have to interrupt the proceedings to 14 confer with the attorneys about the rules of law which should 15 apply here. 16 of the conferences may take some time. 17 you, I will excuse you from the courtroom. 18 such interruptions as much as possible and will try to keep them 19 short, but please be patient even if the trial seems to be 20 moving slowly. 21 unavoidable. 22 Sometimes we talk here at the bench. However, some So as a convenience to I will try to avoid Conferences outside your presence are sometimes Finally there are three basic rules about a criminal case 23 you should keep in mind. First, the defendant is presumed 24 innocent until proven guilty. 25 defendant brought by the government is only an accusation, The indictment against a Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 97 of 245 97 1 nothing more. 2 Therefore, the defendant starts off with a clean slate. 3 It's not a proof of guilt or anything else. Second, the burden of proof is on the government until the 4 very end of the case. 5 innocence or to present any evidence or to testify. 6 defendant has a right to remain silent, the law prohibits you in 7 arriving at your verdict from considering that the defendant may 8 not have testified. 9 Defendant has no burden to prove his Since the Third, that the government must prove the defendant's guilt 10 beyond a reasonable doubt. 11 instructions and definitions on this point later on, but bear in 12 mind that in this respect, a criminal case differs from a civil 13 case. 14 And I will give you some The burden of proof is higher here in a criminal case. All right. Those are basically the preliminary 15 instructions. 16 through in writing as you consider the evidence and the 17 exhibits. 18 19 You will have them, a lengthier set to work But with that, it's time for opening statements. And, Mr. Kidd, are you making the opening statement for the government? 20 MR. KIDD: 21 THE COURT: 22 MR. KIDD: 23 24 25 I am, Your Honor. Proceed then, please. Your Honor do you mind if I scoot this back just a little bit? May it please the Court? THE COURT: You may. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 98 of 245 98 1 2 3 MR. KIDD: "I will well and faithfully discharge the duties of the office on which I'm about to enter." After you've heard all the evidence in this case, you will 4 know the defendant, Eugenio Pedraza, violated this oath. He 5 violated it by lying, by causing others to lie, and by 6 destroying evidence. 7 defendant was a federal agent in charge of a law enforcement 8 office that was tasked with investigating fraud and corruption 9 by federal law enforcement officers, amongst others. In the coming days, you will hear the That even 10 though he was tasked with stopping corruption, in an effort to 11 hide the fact that he was failing as a supervisor and to make 12 himself look good to his bosses, he tried to convince agents 13 that worked under him to lie and create false reports. 14 Defendant didn't just rely on others, though. He also 15 created his own false reports in order to cover the fact that he 16 was failing as a supervisor. 17 Later when Defendant found out he was under investigation 18 and his office was under investigation, he went back, he 19 retrieved the documents he falsified, and he destroyed them in 20 an attempt to cover up what he had done. 21 In 2009, Defendant became the boss of the McAllen field 22 office of the Department of Homeland Security-Office of 23 Inspector General. 24 Inspector General is unique among federal law enforcement 25 offices. As you'll hear during trial, the Office of Unlike regular law enforcement offices, inspector Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 99 of 245 99 1 generals are tasked with investigating federal employees, 2 including federal law enforcement officers that work under the 3 Department of Homeland Security. 4 Border Protection, CBP, Immigration and Customs Enforcement, 5 ICE, Secret Service, and Homeland Security investigators, among 6 others. 7 This includes Customs and For all intents and purposes, Defendant, his office, and the 8 agents that worked under him were the police of the police. 9 as the police of the police, they were supposed to be above 10 And approach. 11 Now, because Defendant's office was based in McAllen, which 12 is close to the border, their principal task was to investigate 13 allegations of corruption by the men and women that protect our 14 border, primarily Customs and Border Protection. 15 if there is an allegation that a Customs and Border Protection 16 agent was taking bribes in return -- in return for allowing 17 contraband, such as narcotics or firearms across the border, 18 Defendant's office and the agents under him would be the ones 19 principally in charge of investigating that allegation. 20 will hear, this was critically important. 21 For example, As you Now, before I go too much further, I think it's important 22 you understand the atmosphere the defendant created in the 23 office during his time as boss. 24 Defendant's office were younger, had very limited federal 25 investigative experience. The majority of the agents in But instead of creating an atmosphere Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 100 of 245100 1 of nurturing and working with these agents to make them better, 2 Defendant micromanaged them to the point where they could get 3 almost nothing done. 4 he created a culture of fear and intimidation. 5 He bullied them. He harassed them. And For example, Defendant routinely told his agents that he -- 6 he routinely implied to his agents that he could fire them and 7 remove them for no cause at any time. 8 them who was boss. 9 It was his way of showing Now, Defendant is not on trial for the atmosphere and 10 culture that he created in his office, but you will hear and the 11 government will prove that this atmosphere and this culture 12 played a major role in the decisions that were made by the 13 agents under him. 14 over the edge to do what defendant asked them to do, which was 15 to falsify documents. 16 It played a role because it helped push them Now, a few moments ago I said the government would prove the 17 defendant lied, caused others to lie, and destroy documents. 18 want to give you a few examples of Defendant's conduct now. 19 I The first two I want to talk about revolve around an 20 inspection that took place in Defendant's office in September of 21 2011. 22 headquarters coming down and reviewing the McAllen field office. 23 Basically they were looking to see that they were complying with 24 policies and procedures. 25 The inspection consisted of a few employees from DHS During the inspection, they were going to review a number of Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 101 of 245101 1 things, one of which were criminal case files. 2 criminal case files, they were looking for documents; in 3 particular, investigative reports and supervisory case review 4 sheets. 5 simply a document that memorializes the investigative steps the 6 agents have taken throughout the course of the investigation. 7 They say exactly what has happened from point A to point Z. 8 9 10 11 In these A criminal report, a criminal investigative report is The supervisory case review sheets are just as they sound. They're review sheets that are filled out by the supervisor, Defendant, after meeting with his agents. Shortly before the inspection, Defendant came to find out 12 that a number of criminal case investigative files lacked 13 criminal investigative reports; so if you open them, it appeared 14 that no work had been done because no work had been done. 15 This terrified Defendant. He knew that if the inspectors 16 found out that no work was being done on cases, it would reflect 17 poorly on him. 18 did not want that to happen. 19 senior agents in his office and he said, "I don't want anything 20 from this inspection to come back on me. 21 So he set about making sure that didn't happen. 22 He was the supervisor, and he would not -- he In fact, he approached one of the Not a single thing." The first case I want to talk about was assigned to an Agent 23 Robert Vargas, who's a relatively new agent in the office, 24 around September of 2011. 25 defendant approached the agent and said, "This case file is The agent approached him or the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 102 of 245102 1 empty. It appears there's nothing -- it appears as if nothing 2 has been done." 3 create falsified investigative reports to fill the gaps of 4 inactivity from on or about March of 2010 up until the present 5 time, about September of 2011. The defendant then instructed the agent to Agent Vargas told Defendant, "I can't do it. 6 I can't do it 7 because I wasn't employed by the Department of Homeland Security 8 until January of 2011, and I was not assigned the case until 9 June of 2011." Defendant, not to be deterred, got a senior agent in the 10 11 office, Wayne Ball. He brought him into the mix. Problem 12 solved. 13 covering the gap of inactivity every month or so, put Agent 14 Ball's name in the reports, have him sign them. 15 that work? 16 of inactivity, so he could sign. 17 report, it appeared as if Agent Ball had done the work. 18 employed. Agent Vargas would draft falsified criminal reports Now, why did Because Agent Ball was in the office during that gap So when you looked at that It's written in a report. It must have happened. You will hear that Agent Vargas left this meeting. 19 He was Agent 20 Robert Vargas left this meeting, and he agonized about what he 21 had been asked to do; but because he feared for his job, he did 22 it. 23 sent them to Defendant for review. 24 them, made some edits, caused them to be printed, caused them to 25 be signed, signed them himself. He created these reports. He falsified documents. He then Defendant got them, reviewed Signed the falsified documents. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 103 of 245103 1 He then caused them to be placed in an open criminal 2 investigative file. 3 The next example revolves around Defendant himself. I 4 briefly mentioned those case review sheets a moment ago. So 5 when the inspectors were looking through the files, they 6 needed -- they wanted to see case review sheets. 7 reviews that the defendant or another supervisor in the office 8 are supposed to have with the agents about their criminal 9 investigative cases quarterly, about every 90 days. These are They sit 10 down, they talk about what has been done, what they want to do 11 in the next 90 days. 12 it, put it in a file. 13 They document it, they sign it, they date Next quarter open up the case file, look at the review 14 sheet, see what had been done, see what was supposed to have 15 been done, compare it to what was done and go forward. 16 Snapshot. 17 course. 18 Snapshot of the case as it progresses through the Defendant had a problem. Problem was he had not conducted 19 the reviews. 20 Defendant went back, got case review sheets, filled them out, 21 backdated them, and placed them in file after file after file. 22 And he did that so if the inspectors looked in there, it would 23 appear, once again, he was performing the functions of his job. 24 He was doing what he was supposed to do. 25 They simply had not been done. So to remedy this, And you'll hear that Defendant knew that what he was doing Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 104 of 245104 1 was wrong. This is shown by the fact that once Defendant became 2 aware of an investigation into what was going on in the McAllen 3 field office, he went back into the files, he retrieved those 4 case review sheets, and he destroyed them in an attempt to hide 5 what he had done. 6 The next two examples I want to talk to you about don't 7 involve Defendant's attempt to fool the inspectors, but involve 8 Defendant's attempt to once again cover his own lapses and to 9 make it appear as if he was performing the functions of his job, 10 even if that meant placing false documents into open 11 investigation -- criminal investigations. 12 In February of 2011, Defendant took a file, case that was 13 assigned to him, and he went to Agent Edwin Castillo. 14 approached Edwin Castillo and said, "I need your help on this. 15 I need you to draft an investigative report and a closing 16 report." 17 Agent Castillo had never seen this file, had never worked on 18 this file. 19 in that report. 20 investigative report." 21 He Defendant said, "I'm going to tell you what to put I'm going to tell you what to put in the Agent Castillo said he would do it. Defendant told Agent Castillo what he wanted in the report 22 was a description of what had happened in the investigation. 23 And what he told Agent Castillo was that an anonymous tip had 24 come in about a corrupt CBP agent. 25 attempted to track that down; but because of the source of The agents in the office Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 105 of 245105 1 information, the individual that made the complaint was unknown, 2 they were unable to find him, nothing further to be done. 3 it up, put it in the file, close the case. 4 Draft Agent Castillo drafted the report, drafted a closing report, 5 sent it to Defendant. Defendant reviewed them, made some edits, 6 brought them back to Agent Castillo, had him sign them. 7 going to hear that almost immediately, Agent Castillo understood 8 that what he had done was wrong; that he understood at that 9 moment he probably just signed a report that was not correct, You're 10 and that's because at no point did Defendant say that he had 11 done the work. At no point did Defendant tell him who else had 12 done the work. And Agent Castillo himself knew he hadn't done 13 the work. 14 Now, what you're going to hear at trial is that Agent 15 Castillo's gut was right. 16 the report was one hundred percent wrong. 17 agents at DHS-OIG, Defendant's very office, did know who the 18 complainant was. 19 found him. 20 They met with him. 21 the investigative report. 22 report that closed the file. 23 What Defendant told him to place in Because, in fact, They knew who called in the complaint. They Not only did they find him, they talked to him. But that isn't what Defendant had placed in It's not what he had placed in the The last example I want to give you is around the same time, 24 and it requires a little bit of background. But this is another 25 situation where Defendant himself placed false information into Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 106 of 245106 1 a document. 2 and for some time he had been using a confidential source, an 3 individual who was assisting in federal investigations in return 4 for papers so she could stay in the United States. 5 done some work together. 6 Agent Rolando Gomez worked in Defendant's office, At some point that relationship soured. They had Agent Gomez and the 7 source were no longer seeing eye to eye. In fact, the 8 confidential source had made allegations against Agent Gomez of 9 impropriety. 10 Agent Gomez found out about these allegations, reported them 11 to Defendant, and Defendant and another supervisor in the office 12 made the decision that the relationship with the source needed 13 to be ended. 14 be pulled back, and she needed to be returned to Mexico. 15 they went about doing that. 16 She needed to be deactivated, her papers needed to So Agent Gomez called the confidential source into the office, 17 they informed her of their decision, and they had Agents Marco 18 Rodriguez and Agent Della Saenz transport her to the port of 19 entry in Hidalgo, and they watched her walk across the border. 20 Once she walked across the border, they called Agent Gomez and 21 told him it's done. 22 Agent Gomez, as he did, drafted a factually correct report 23 documenting the fact that Agent Rodriguez and Agent Saenz had 24 returned the confidential source back to Mexico. 25 that report to Defendant for review. He then sent Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 107 of 245107 1 Defendant got the report, reviewed the report, edited the 2 report, and sent it back to Agent Gomez. 3 opened it, he realized that what Defendant had done was cross 4 out the names of Agent Marco Rodriguez and Agent Della Saenz as 5 the two individuals that had returned the source to Mexico and 6 replaced it with the name of Agent Gomez and the name Joe Blow. 7 And when I say the name Joe Blow, I mean Defendant placed the 8 name Joe Blow into a -- into an investigative report. 9 When Agent Gomez Now, agent -- you will hear that Agent Gomez took this to 10 mean that Defendant wanted Agent Gomez's name in the report and 11 someone else in the office. 12 Agent Gomez knew that this was wrong. 13 went to Defendant and said, "This isn't what happened. 14 transport the source across the border. 15 the port of entry. 16 It really didn't matter to him. He took the report, he I didn't I did not escort her to Agent Rodriguez and Agent Saenz did." Defendant said, "Do it. That's the way it should be done." 17 So Agent Gomez, like Agent Castillo, like Agent Vargas, did as 18 he was requested and put falsified information into the report. 19 It was then sent back to Defendant who caused it to be printed, 20 caused it to be signed, signed it -- he signed it himself and 21 got it placed into a criminal investigative file. 22 As you're going to hear during trial, placing false reports 23 into a file has grave consequences, not only for the 24 investigation itself, but for the agents who draft those 25 documents. In fact, one of the cases we have talked about here Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 108 of 245108 1 today, once it became known that there were false reports within 2 it, shut down. 3 longer trust the integrity of the investigation itself. 4 No further work was done because they could no That means that there was a criminal -- there's an 5 allegation of corruption that was no longer worked on by the 6 Department of Homeland Security-Office of Inspector General here 7 in McAllen. 8 9 Now, with respect to the agents. Shortly after Defendant was placed on administrative leave, a new supervisor came into 10 the office. 11 Agent Vargas, and Agent Ball had falsified documents. 12 thereafter, he notified everybody in the office that those 13 agents were no longer allowed to conduct criminal investigative 14 activity. 15 job. 16 something, they had to take a chaperon. 17 another agent with them to see what they were doing. 18 because, as you will hear, once your credibility is called into 19 question as an agent, you can no longer perform the functions of 20 your job; because without your credibility, you have nothing as 21 a federal agent. 22 He found out that Agent Gomez, Agent Castillo, Shortly They could no longer perform the functions of their They were benched. In fact, if they had to go out and do They had to take And that's Now, based on what I've talked to you about and some other 23 evidence that will come out during trial, the defendant has been 24 charged with, as you've heard, conspiracy, falsification of 25 documents in a federal investigation, and obstruction of Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 109 of 245109 1 justice. 2 doubt. 3 The government will prove this beyond a reasonable During the course of trial, you're going to hear from the 4 agents themselves. 5 what happened in the McAllen field office of the Department of 6 Homeland Security-Office of Inspector General under Defendant's 7 watch. 8 to hear about the culture. 9 falsification of documents. 10 11 You're going to get an insider's view of You're going to hear about the atmosphere. You're going You're going to hear about the You're going to hear what happened from the people who were there. Now, during trial you're going to hear that a few of these 12 agents have entered into agreements with the United States that 13 in return for their truthful testimony during trial, the 14 government has agreed not to prosecute them -- prosecute you 15 them -- prosecute them for the role in the falsification of 16 documents. 17 Now, in addition to the insider's view, the agents, you're 18 going to see emails. 19 Defendant and the agents themselves containing the false 20 reports. 21 these reports to be written, but that he reviewed them before 22 they went out. 23 didn't. 24 and you'll see that. 25 You're going to see emails between You're going to see that Defendant not only caused He had a second chance to stop it, and he He reviewed them, he approved them, and out they went, And also you're going to see the false reports themselves. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 110 of 245110 1 You're going to get to see exactly what the agents wrote and 2 compare it to what they get on the stand and tell what they did. 3 You're going to see the dates, you're going to see the criminal 4 investigative activity, and you're going to hear how those 5 reports are wrong. 6 Now, at the end of this case, the government is going to get 7 another opportunity to come up here and talk to you. At that 8 time we'll once again go over what you've heard at trial. 9 will for the first time go over what you've heard at trial, and We 10 we will explain why what you have heard shows the defendant -- 11 that the defendant is guilty of the crimes of which he has been 12 charged. 13 jury room and deliberate and then come back give the only 14 verdict that is supported by the evidence that will be presented 15 during this case, and that is a verdict of guilty. 16 17 18 19 20 At that time we're going to ask you to go back in the THE COURT: Thank you. Thank you, Mr. Kidd. Mr. Eastepp? MR. EASTEPP: Thank you, Your Honor. May it please the Court, counsel, Mr. Pedraza, ladies and gentlemen. I'm sure y'all have all had the experience I've had. You 21 see a commercial come on TV, what they call a movie trailer for 22 some upcoming movie or you see the commercial on television for 23 the upcoming fall season and you go, "Man, that's a movie I want 24 to go see," or, "That's a show I want to go see," because that 25 trailer, that little summary was really exciting, and we're Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 111 of 245111 1 going to go see it and sit with my family and it's going to be 2 great. 3 you're highly disappointed because the trailer was far more than 4 what the actual movie is. 5 And you watch that show or you go to that movie, and That's kind of like what you just heard from the government 6 in this case, because if you will sit and you will listen to the 7 whole thing, as Judge Hanen has instructed you is your job, 8 listen to the cross-examination, to the explanations of these 9 documents, to the -- all of these explanations that went on in 10 this case, you're going to see that this story is far more than 11 what Mr. Kidd just laid out and that Gene Pedraza is not guilty 12 of these offenses that they've laid out in this case. 13 You know, this case really starts and goes back, frankly, to 14 9/11. 15 planes into the building. 16 president decided we needed to have a new department of the 17 government called Homeland Security, and Homeland Security was 18 created. 19 it became a department of the government. 20 We all remember that day when the terrorists flew the And the Congress later and the And in 2003, not that long ago, the agencies or the -- And when you really think about things that -- the State 21 Department that we all know about goes back to the origins of 22 the United States, almost 200 years. 23 facts of this case, you're going to be hearing about an agency 24 that's only eight years old in this huge bureaucracy, and it was 25 this cobbled together department of the government where it When you're hearing the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 112 of 245112 1 took -- as Mr. Kidd said, Border Patrol came in and Customs came 2 in. 3 Border -- Customs was a Treasury agency. 4 Department of Justice agency. 5 the Homeland Security Department of -- or Inspector General's 6 office was really kind of put together from whole cloth and put 7 down here in McAllen. 8 9 They borrowed these agencies like Customs. Customs and Border Patrol was a They put it all together. Well, You're going to hear how Mr. Pedraza ascended through the ranks, got promoted. And I think you all know in your common 10 sense in the federal government people get promoted because 11 they're doing their jobs as being observed by the people who are 12 being paid to observe them do their jobs, and he got promoted. 13 What you're going to hear too about this fairly young agency 14 is it was going through lots of growing pains itself, how they 15 do their paperwork, what should be on their paperwork. 16 going to see these MOAs, as Mr. Kidd talked about, which is 17 memorandum of activity. 18 government form that this particular agency used. 19 going to see at the bottom where it has signatures and dates 20 that nowhere on the bottom does it say, "I am swearing and 21 attesting to this date," or this date means its investigation on 22 and transcribed on like the FBI has on their documents. 23 goes back to 1920. 24 their documents right. 25 You're It's a general catchall preprinted And you're The FBI They've had a lot of practice in getting The Inspector General's, the form you're going to see, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 113 of 245113 1 doesn't say that. 2 from top to bottom there was great confusion exactly what date 3 should go on the document. 4 a document doesn't mean that's an incorrect date or that that 5 was part of some illegal scheme. 6 you may have done back on January 5th when you wrote a check at 7 the HEB and you wrote January 5th, 2013, you weren't trying -- I 8 mean, yeah, 2013, you weren't trying to defraud somebody because 9 it was now January 5th, 2014. 10 11 And you're going to hear within this office So just because some date is put on Sometimes it means, just like Sometimes those are called mistakes. And you're going to see these things all over the board when 12 you're looking at these factual situations that are going to be 13 presented to you during this case. 14 open. 15 So again, keep your mind What you're also going to hear, as Mr. Kidd went over with 16 Mr. Pedraza, this is a very busy area for the Department of 17 Justice-Homeland Security -- I mean for the Homeland 18 Security-Inspector General's office. 19 ascended to being the special agent in charge, you're going to 20 hear he was not only in charge of the agents sitting in McAllen, 21 he had agents in Laredo, almost three hours away by car, and he 22 had agents here in Brownsville, a good hour away from McAllen by 23 car. 24 25 Mr. Pedraza, once he Of course, headquarters is sitting in Washington, D.C. Well, how are they communicating? In this day and age, we all know how they were largely communicating. You're going to Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 114 of 245114 1 see a lot of it, like Mr. Kidd said, by email. 2 federal law enforcement agency. 3 agency from the man that was running it down to the lowest level 4 grade federal employee of that agency didn't understand that 5 emails are kept forever; that if you put it in an email, 6 somebody can see it; somebody can find it; somebody can bring it 7 into a courtroom like this? 8 when you're doing it by email inside a federal law enforcement 9 secure computer system. 10 11 This is a Do you think anybody at that It's a strange criminal conspiracy You need to keep that in mind as you're hearing the facts of this case as it goes along. And as Mr. Kidd -- or also with these three offices and this 12 dynamic border environment, as you all know because you live 13 down here, with NAFTA and all the ports of entry coming all up 14 the river, the stream of commerce. 15 legal commerce coming across every day, and there's lots of 16 illegal commerce coming over every day. 17 lot of federal agents that are corrupted. 18 the Inspector General within their agency, to look after the 19 employees. 20 We know there's lots of And sadly, there are a And that's the job of Like Mr. Kidd said, they're policing the police. But that also means when you're the head of that agency like 21 Mr. Pedraza, there is a mass of paperwork coming at you 22 constantly. 23 that are used in this case. 24 file. 25 the agents in Laredo, they have their own working file. You're going to hear various things about the files What's kept in McAllen are the case Well, each agent -- so the agents here in Brownsville or So if Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 115 of 245115 1 they've gone out and they've interviewed somebody, those 2 notes -- like if it's an agent here in Brownsville, those notes 3 are going to be remaining in their Brownsville file until that's 4 formalized. 5 process, and at some point after all these approvals, it makes 6 it into the case file. 7 And they have a process. It goes through a review Well, Mr. Pedraza is sitting in McAllen. It just makes 8 sense he's not going to know moment-to-moment, day-to-day what's 9 in each of those working files that are sitting in Brownsville, 10 Texas, or sitting in Laredo, Texas; or, frankly, even the agents 11 that are right down the hall from him in the McAllen office, 12 because those agents are there to work on their cases and to 13 follow the rules of the agency and to memorialize their 14 interviews and to memorialize the other things that they're 15 supposed to be doing on those forms. 16 And so Mr. Pedraza day-to-day, moment-to-moment is getting 17 bombarded with emails with these things. He's basically being 18 an editor, and that's what you're going to see on these where 19 things are changed. 20 go over that when it comes to it. 21 processing form. 22 was: 23 simply editing. 24 that and some of these other things. 25 going to see a lot of draft documents getting passed along by Like that Joe Blow thing. Trust me, we'll It's redlined out on a word It was not changed into final form where it Hey, take this, print it, sign your name to it. It was And we'll explain more as we go along about But just remember, you're Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 116 of 245116 1 2 email. Not final documents. This inspection. Draft documents. Well, that sounded big and fancy too. 3 was an open book test. 4 here: 5 Mr. Pedraza and his administrative assistant, who's going to 6 testify in this case, picked the cases. 7 where you had to figure: 8 come looking in this file, or what are they going to see? 9 was an open book test. It Washington told the local people down You pick the files. It was an open book test. So this wasn't one Oh, my God, what are they going to It This inspection, as it goes on in all of 10 the federal government, you can just imagine how many internal 11 checks and inspections are going on. 12 Department of Homeland Security-Inspector General, whether it's 13 the Internal Revenue Service, whether it's the National Park 14 Service, that's what bureaucracies do. 15 look at other bureaucrats to see if the bureaucracy and things 16 are being followed. 17 Whether it's the They sent bureaucrats to So when those inspectors came down here, Mr. Pedraza and his 18 administrative assistant, they knew which files were going to 19 get looked at. 20 them. 21 It wasn't some big mystery because they picked They picked those files. At the moment of that inspection, there simply is no 22 doubt -- I agree with Mr. Kidd -- Mr. Pedraza was not a popular 23 supervisor. 24 for him -- and like Mr. Kidd said, a lot of them were green. 25 forget the exact term he used, but I think that's what he meant. You're going to hear that these agents that work I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 117 of 245117 1 They had varying talents. 2 you will see that at the moment they came down, they thought: 3 Well, this is our chance. 4 stuff about Gene Pedraza, they'll fire Gene Pedraza, and then we 5 won't have Gene Pedraza to worry about anymore. 6 inspector comes down, you're going to hear that they're telling 7 him lots of stuff. 8 9 There's no doubt about that. I think If we tell these inspectors the bad And so when the What you're not going to hear, like with Mr. Vargas, that he ever said a word about it. "Oh, I was made to do a false 10 report." 11 inspector from Washington interviewing him, and I believe that 12 man, the inspector, is coming. 13 never said a word. 14 He had every chance in a private meeting with the He had every opportunity, and he Never said a word. Mr. Castillo, Mr. Gonzalez -- Gomez is -- Mr. Kidd talked 15 about in those other situations, they never said a word for 16 months. 17 These are the trained federal agents? The other thing that Mr. Kidd said -- and remember, Judge 18 Hanen instructed you on criminal conspiracy, what that is. 19 It's -- it's really a pretty simple concept. 20 agree to violate the federal law. 21 meeting of the minds. 22 we're going to do it. 23 That's it. Two or more people But it takes that It takes two people who say we agree The easiest thing is the bank robbery. 24 said, "Okay, Bonnie." "Help me, Clyde. 25 They go rob a federal insured bank. Bonnie and Clyde Let's go rob a bank." Pretty easy to understand. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 118 of 245118 1 That's criminal conspiracy to rob a bank. 2 agreeing. 3 head and force you to go in there and rob a bank." 4 not exactly an agreement, is it? 5 rob a bank. 6 Well, it takes him It's not, "Bonnie, I'm going to hold a gun to your Well, that's That's forcing Bonnie to go Well, all this, as Mr. Kidd said, Mr. Vargas walked out of 7 that meeting with Mr. Pedraza. And I want y'all to listen real 8 close when we get to talking about that meeting. 9 on some caliche road in a -- in a ranch out here in South Texas. It wasn't out 10 It was in a conference room with the door open where everybody 11 goes in and out and talks. 12 in there talking as they always did. 13 always went into that conference room to talk. 14 Nobody's voices are hushed. They're The Brownsville agents Emails are a criminal conspiracy. Open conference room with 15 open voices, a criminal conspiracy. 16 that when Mr. Vargas leaves, he's not saying that he had agreed 17 to commit a criminal conspiracy with Gene Pedraza. 18 thinking he's being made to do something and then makes his own 19 mind up later. 20 think you'll hear the evidence that's what he did, that's not 21 criminal conspiracy. 22 But Mr. Kidd even told you He goes away Well, if that's what he did, as you'll -- and I You're going to hear the conspirators are alleged to be 23 Robert Vargas, Wayne Ball, and an agent named Marco Rodriguez. 24 I don't recall Mr. Kidd talking about Mr. Rodriguez. 25 I will tell you that you will hear testimony in here that a Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 119 of 245119 1 conspiracy between Gene Pedraza and Marco Rodriguez would be 2 about like the one I'm about to tell you. 3 Ted Cruz from Texas was conspiring with Nancy Pelosi, the 4 democratic former Speaker of the House, to take bribes to pass 5 legislation, nobody would believe it. 6 Tea Party guy and Nancy Pelosi? 7 room together, much less agree on a criminal conspiracy. 8 9 If you heard Senator They'd go: What is this They won't even be in the same You're going to hear that Marco Rodriguez and Gene Pedraza were not pals. They were not compadres. You're not going to 10 hear a word from any witness on that stand that says, "I heard 11 Marco Rodriguez and Gene Rodriguez -- Gene Pedraza talking about 12 a criminal conspiracy." 13 you some emails and say, "Well, there's a date wrong here." 14 That's criminal conspiracy. 15 need to look at that closely. 16 They're just going to pass you, show So when you hear this evidence, you And you're also not going to hear that Marco Rodriguez and 17 Wayne Ball and Robert Vargas went off and conspired together and 18 did anything. 19 going to have a conspiracy that any two people ever agreed on 20 anything. 21 So at the end of the day, I don't think you're So listen to that closely as you go through this. It's the same when you're hearing from Special Agent 22 Castillo when he talks about this file; that it was a dead file, 23 folks. 24 anywhere. 25 opening every file on every anonymous tip. You'll see it when it comes in. It was never going You're also going to hear that this agency was So if somebody said Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 120 of 245120 1 there's an unknown inspector in Brownsville helping an unknown 2 organization do some unknown illegal thing, this agency was 3 opening a file for statistical credit. 4 that file is very similar to that, meaning it was never going to 5 anywhere anyway. 6 draft was to close a file to get rid of it because it was junk. 7 You're going to see that And all this memo is that Mr. Castillo was to This thing with Mr. Gomez you're going to hear is just a 8 classic misunderstanding. 9 that with this source. You're going to hear more facts about She was a professional source, meaning 10 she's a woman that had learned for years and years that if she 11 offered her services to any federal agency, said, "Hey, I can 12 help y'all get something," she was allowed to legally stay, to 13 be paroled and live in the United States. 14 Well, Special Agent Gomez will tell you that he had decided 15 she was not being a very good informant and was going to kick 16 her out of the country, and she found a friend up in Dallas who 17 was a female agent with the Inspector General's office up there 18 and said: 19 and so the decision was made after consultation up and down that 20 she needed to be kicked out of the country. 21 to play everybody she could play, and now she's making 22 accusations against Mr. Gomez, Special Agent Gomez that just 23 simply were not true. 24 25 Mr. Gomez was mean to me. And that agent bought it, She was just trying So she was brought down here not because of an investigation. She was brought down here so they could kick her Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 121 of 245121 1 out of the country. And you're going to hear that once she got 2 down here, she wasn't truthful with them, but that all of this 3 occurred outside Mr. Pedraza's knowledge. 4 supervisor of the office, Special Agent Jody Warren who went in, 5 kind of seized control of the situation, and helped get her 6 kicked out of the country. It's the other Well, it is the rule in the agency that if you have an 7 8 informant, that informant is yours. You're responsible 9 procedurally for the rules, the regs and things that go along 10 with that. Mr. Pedraza rightfully thought: Mr. Gomez's 11 informant; Mr. Gomez took her to the river, got her across the 12 bridge. Well, when he gets the memo, the memo is not instantaneous, 13 14 you'll see in the email traffic. 15 it's Marco Rodriguez and Della Saenz that took the woman across 16 the river. 17 that's what he's talking about where it said: 18 and some other agent. 19 you're going to see that's editing notes. 20 wasn't in some final form. 21 Mr. Gomez changes it. 22 it. 23 He gets it, and it says that You're going to see in the editing that goes back, It had to be you That's the Joe Blow thing. And again, Those are not -- that It was just a misunderstanding. Doesn't say anything to anybody. So Changes When it comes back, if you have a trained special agent who 24 sends you back a report that has words in it and you know that 25 he was involved and it's his informant, you sign it, you approve Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 122 of 245122 1 it, and you move on. Mr. Gomez didn't say anything for months 2 and months and months about this. 3 got" -- months and months and months. 4 goes up on this simply says that the agency kicked her out, took 5 her to the river, which was accurate. He didn't -- "Oh, my God, I The actual report that 6 This thing about destroying the records. I want y'all to 7 listen very closely when the testimony comes in. 8 a federal law enforcement agency. 9 courthouse building in McAllen that is different than this Again, this is It's inside the federal 10 building. 11 McAllen, that used to be a bank building; and now the federal 12 government, mostly for court purposes, has taken it over. 13 the U.S. Marshals are in control of it. 14 in the door like late at night, there's a scan to get in the 15 door. 16 door where the Inspector General is on the second floor in 17 McAllen, there's a scan. 18 you get in it, there are cameras everywhere, including on 19 this -- the file room that are motion activated that are 24/7. 20 There are cameras everywhere. 21 the guy who was in charge of the office would not know that 22 there are cameras everywhere? 23 going to show you video one from this -- from those cameras. 24 25 I mean, this is just a pure federal courthouse. Somebody is going to know that. Still So for anybody to come To get in their office You know who walks in the door. So all of this. Once And you think I don't think the government is You're just going to hear Special Agent Green, who became the supervisor, took it over one day, sees they're missing. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 123 of 245123 1 Well, who do we blame? 2 You're going to see that's about it. 3 That's conjecture. 4 are to base their decision on. 5 Well, let's just blame Gene Pedraza. That's not evidence. That's speculation. That's not what juries Lastly I'll get to this thing about the immunity of Robert 6 Vargas, Edwin Castillo, Roland Gomez. 7 mind you, told, not in writing, not in some form -- as long as 8 you say what -- that Gene Pedraza did this, we ain't going to 9 prosecute you. 10 They've all been told -- You got a deal with us. And y'all aren't going to know what the terms are because 11 it's hard to figure out what the terms are when it's just some 12 lawyer going: 13 Federal government not writing something down? 14 Hey, buddy, I'm going to give you immunity, okay? Now, you're also going to hear how many times all these 15 people have been talked to and interviewed. 16 Broadway and opening night they say their lines correctly, 17 that's because they've been well rehearsed before they ever open 18 the curtain for opening night. 19 particularly these witnesses that have been immunized how many 20 times they have been talked to so that they keep telling the 21 same story: 22 When it's a play on And when you hear these -- Gene, Gene, Gene, Gene, Gene. At the end of that, I just don't think you're going to find 23 that these are credible people. You're going to find they're 24 bought and paid for. 25 and they've been earning money sitting at home just waiting to They've been left on administrative leave, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 124 of 245124 1 testify. 2 it. 3 It's a pretty good job if you can get it, and they got So at the end of this, this is going to be far different 4 than Mr. Kidd portrayed it be to. 5 us, that you listen; because at the end, I think the only fair 6 decision that you're going to be able to come to is that Gene 7 Pedraza -- he may not have been the best boss in the world, but 8 he's no criminal. 9 back. 11 He's innocent, and he needs to have his life Thank you. THE COURT: 10 I just ask that you bear with Thank you, Mr. Eastepp. Ladies and gentlemen, why don't we do this. Before we call 12 our first witness, why don't we take about a ten minute stretch 13 break. 14 lawyers and me. 15 the government's first witness. 16 (Jury leaves courtroom) Y'all have been sitting there patiently listening to the And then when you come back, we'll hear from 17 THE COURT: 18 COURT CLERK: 19 THE COURT: 20 MR. COONEY: 21 our first witness? 22 THE COURT: 23 MR. COONEY: 24 THE COURT: 25 Cristi, will you move the podium back? Yes, sir. Who's going to be our first witness? I'm sorry, did you ask who is going to be Yeah. Special Agent Dave Green. Okay. counsel, and come back. Let's take about ten minutes, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 125 of 245125 1 (Recess taken from 2:21 to 2:36.) THE COURT: 2 3 Mr. Cooney, are we ready to proceed? 4 MR. COONEY: 5 THE COURT: 6 All right. right. 7 We are ready. All right. Is the jury ready, Tony? All Ask the jury to join us, please. (Jury enters courtroom) THE COURT: 8 All right. Ladies and gentlemen, be seated. Mr. Cooney, who's going to be our first witness? 9 10 MR. COONEY: 11 Green from DHS-OIG. THE COURT: 12 13 United States calls Special Agent David Right up here, sir, if you will. (Witness sworn.) THE COURT: 14 All right. Be seated, sir. DAVID GREEN, 15 16 the witness, having been first duly cautioned and sworn to tell 17 the truth, the whole truth and nothing but the truth, testified 18 as follows: DIRECT EXAMINATION 19 20 BY MR. COONEY 21 Q Good afternoon, sir. 22 A Good afternoon. 23 Q Could you please state your name for the record and spell it 24 for the court reporter seated in front of you. 25 A David Green. D-A-V-I-D, G-R-E-E-N. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 126 of 245126 1 Q Where are you employed, sir? 2 A Homeland Security-Office of Inspector General. 3 Q What is your current title? 4 A I'm a supervisor for Homeland Security. 5 Q Where? 6 A In McAllen and in Houston. 7 Q Do you have a title as a supervisor in McAllen? 8 A I'm the acting resident agent in charge. 9 Q When did you first assume that position? 10 A I think it was official in February 2012. 11 Q Who did you take that position over from? 12 A Mr. Pedraza. 13 Q Do you see Mr. Pedraza here in court today? 14 A I do. 15 Q Could you please identify Mr. Pedraza for the record? 16 A This is Mr. Pedraza. 17 tie. MR. COONEY: 18 19 He's standing over there with a brown May the record reflect an in-court identification of the defendant? THE COURT: 20 The record will so reflect. 21 BY MR. COONEY 22 Q Why did you take over the defendant's position? 23 A Because he was put on administrative leave. 24 Q Was that in approximately February 2012? 25 A Yes, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 127 of 245127 1 Q Agent Green, I'd like to talk a little bit about your 2 professional background. 3 Department of Homeland Security-Office of the Inspector General? 4 A Since May 2004. 5 Q Is that your first position in law enforcement? 6 A It is not. 7 Q Could you tell the jury a little bit about your career in 8 law enforcement? 9 A Yes, sir. How long have you been employed by the Prior to 2004, I was with the Office of Inspector 10 General for the Department of Labor. Prior to that I held an 11 administrative or a civil investigative position also with 12 Department of Labor. 13 Q 14 was that with their Office of the Inspector General? 15 A That's correct. 16 Q And by the way, just to try and familiarize the jury with 17 some of these acronyms, what is -- I think I've heard you say 18 OIG. 19 A That is Office of Inspector General, OIG. 20 Q So do agencies -- you obviously currently work for DHS. 21 worked for Labor. 22 their own offices of inspector general or own OIGs? 23 A Yes, sir, they do. 24 Q Now, prior to joining the Department of Labor's OIG, were 25 you in law enforcement? That was in Houston. Was that -- in that position with the Department of Labor, Can we just be clear about what OIG stands for? You Do other federal agencies like that have Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 128 of 245128 1 A I was. 2 Q What position did you hold? 3 A I was a Border Patrol agent. 4 Q How long did you do that? 5 A For approximately four years. 6 Q What exactly does a Border Patrol agent do? 7 A A lot. 8 Q What did you do as a Border Patrol agent? 9 A Apprehended aliens coming into the United States illegally, I guess a short answer is patrol the border. 10 drug cases, apprehending drugs coming in, vehicles, persons. 11 Q 12 that essentially policing the border -- 13 A That's correct. 14 Q -- to ensure that contraband does not come into the United 15 States? 16 A Yes, sir. 17 Q Now, I want to go back a little bit to -- specifically to 18 your work with the Department of Homeland Security-Office of the 19 Inspector General. 20 is that right? 21 A That's correct. 22 Q When you joined the agency in 2004, what was your title 23 then? 24 A Special agent. 25 Q As special agent. In drug cases and things like that that you mentioned, is You said that you first joined it in 2004; So are those sometimes referred to as Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 129 of 245129 1 line agent? 2 A Criminal investigator or line agent, yes, sir. 3 Q What exactly does the Department of Homeland Security-Office 4 of Inspector General or OIG, what exactly does it do? 5 A 6 investigate fraud, waste and abuse. 7 police within our Homeland Security like the -- in this area, 8 for instance, it would be the majority of our allegations and 9 investigations involve allegations of corruptions with Border Again, there's a really long answer. The short answer is we We also investigate other 10 Patrol agents or Customs and Border Protection officers. 11 Q 12 special agents, for example, look into, are those criminal 13 investigations? 14 A Yes, sir. 15 Q And so when you say border corruption, can you just be a 16 little bit more specific about the types of cases that OIG 17 investigates on the border? 18 A 19 agents who are alleged to have helped smuggle people in or who 20 allegedly help smuggle narcotics illegally into the country by 21 use of their authority or their position. 22 Q 23 are they responsible for conducting criminal investigations of 24 those type of allegations of border corruption, of bribery, 25 things like that? In the criminal investigations that OIG looks into, that Yes, sir. We get a lot of allegations of Border Patrol Now, just to back up then to line agents or special agents, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 130 of 245130 1 A Yes, sir. 2 Q How do line agents go about doing their job? 3 responsibilities and functions? 4 A 5 the U.S. Attorney's Office. 6 witnesses; they conduct surveillance. 7 Q Do they write reports? 8 A Yes. 9 Q Do line agents testify in legal proceedings? 10 A Yes, sir. 11 Q What kind of legal proceedings? 12 A Every type of legal proceeding from a grand jury 13 presentation, to court, to a trial, to affidavits for search 14 warrants. 15 Q 16 in particular. 17 is that right? 18 A Yes, sir. 19 Q And what are your responsibilities as resident agent in 20 charge? 21 A 22 management, administrative as well as all of the reports that 23 you were talking about that come in from agents. 24 reports and sign them, approve them. 25 sheets. What are their Again, they issue subpoenas or they get subpoenas issued by They review data; they interview Now, let's talk a little bit about the McAllen field office You're currently the resident agent in charge; At the time I review reports, responsible for the office I review those The agents' leave, time Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 131 of 245131 1 Q Do you supervise the line agents or the special agents? 2 A I do. 3 Q What exactly does it mean to supervise them? 4 A Manage them, coach them, follow their work, their caseload, 5 make sure they're headed in the right direction. 6 Q Do you help them with their criminal investigations? 7 A I do. 8 Q How so? 9 A Well, we have quarterly file reviews. And in those quarter 10 file reviews, I see where they're at, where they've been, and 11 then we set goals, and then they go and they do those things. 12 Or if they have issues any time in between, they'll come and 13 say, you know, "What do I do with this?" 14 report on a case in a while, then I may approach them and say, 15 "I haven't seen any activity on this case in a little bit of 16 time. 17 Q Do they come to you for advice? 18 A They do. 19 Q Now, at the time you took over the position of resident 20 agent in charge back in February 2012, who were the line agents 21 or special agents who worked in the McAllen field office? 22 A 23 Saenz, Rolando Gomez, Edwin Castillo, Camillo Garcia, Eraslio 24 Flores. 25 Q If I haven't seen a What's going on?" Let's see. There was Kristofor Healey, Robert Vargas, Della Is that J.R. Flores? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 132 of 245132 1 A It is, J.R. Flores. 2 Q Now, when you actually took over the office at that time, is 3 that when you first started working in McAllen, or had you 4 actually started before that? 5 A I've worked down there in the past prior to that date. 6 Q All right. 7 back up a little bit about you. 8 the McAllen field office, were you based elsewhere? 9 A I was based in Houston. 10 Q And in Houston were you a line agent or special agent? 11 A Yes, sir. 12 Q And did you conduct exactly the kinds of criminal 13 investigations yourself that you just described? 14 A Yes, sir. 15 Q When did you actually start taking responsibilities with 16 respect to McAllen? 17 before that? 18 A It was before that. 19 Q In about when? 20 A October, November 2011. 21 Q All right. 22 take in McAllen then? 23 A 24 was -- 25 Q When -- prior to actually -- and actually let me Prior to actually working in Was it first in February of 2012, or was it And when you did that, what position did you I don't think it was really given a position. It was -- it What was your role when you went to McAllen in October or Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 133 of 245133 1 November of 2011? 2 A To go down and help. 3 Q How so? 4 A Help agents. 5 agents down there and there were a lot of cases, and just go 6 down and help. 7 Kind of a -- I don't want to say supervisory at that time. 8 Maybe a big brother. 9 Q It was my understanding there are some new See what I could do to help out, guide them. Maybe a lead criminal investigator type. Now, at that time -- I keep referring to it as the McAllen 10 field office. Was it a field office when you started in 11 October, November 2011? 12 A It was a -- at some point it was a SAC office. 13 Q What exactly does that mean? 14 A It had a special agent in charge, and then it was -- it was 15 just a different structure. 16 it's under Houston, so there's a special agent in charge in 17 Houston that supervises me and that office. 18 Q 19 2011? 20 A 21 these guys out. 22 a case load I know that -- 23 Q Was it part of that reorganization? 24 A I don't -- I don't think it was, no, sir. 25 Q When was the reorganization actually completed? It was its own office, whereas now So why were you asked to go down in October or November Like I said, it was described to me to go down and help There's a lot of new guys down there. There's Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 134 of 245134 1 A That's hard to say. It was in the -- because then it went 2 away too. 3 Q Of '12? 4 A Of '12? 5 Q 2012? 6 A I think that's right. 7 Q All right. 8 A Spring 2012. 9 Q And so just what I want you to describe now for the jury It was in the spring. 10 then, Agent Green, is what the different is then between a 11 resident agent in charge and a special agent in charge and how 12 that impacted the McAllen office. 13 A 14 in charge. 15 Washington, D.C. 16 Q 17 there a special agent in charge or a resident agent in charge in 18 McAllen in October or November 2011? 19 A I believe Mr. Pedraza was a special agent in charge. 20 Q And so who then would Mr. Pedraza have reported to as a 21 special agent in charge? 22 A Someone in Washington, D.C. 23 Q Now, once McAllen was reorganized to be a resident agency, 24 so it has a resident agent in charge, which is you; is that 25 right? Well, a resident agent in charge answers to a special agent And a special agent in charge answers to someone in So at the time you went down in October, November 2011, was Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 135 of 245135 1 A That's correct. 2 Q Who do you report to? 3 A A special agent in charge in Houston. 4 Q So essentially McAllen is now a suboffice of Houston; is 5 that right? 6 A That's correct. 7 Q But at the time before you arrived there in October 2011, 8 McAllen was essentially its own main office; is that right? 9 A That's correct. 10 Q Did it have suboffices? 11 A It did in Laredo. 12 Q Who is the special agent in charge that you currently report 13 to? 14 A His name is James Beauchamp. 15 Q I want to talk a little bit more about line agents. Mr. Starnes, could you please put up what has already been 16 17 We know him as Kirk Beauchamp. admitted as Government Exhibit 18C? And while he's putting that up there, Agent Green, when you 18 19 first became a special agent with the Department of Homeland 20 Security back in 2004, did you take any oaths or an oath? 21 A I did. 22 Q What just -- without specifics, what -- what exactly -- what 23 oath did you take? 24 A Well, it's an oath of the office. 25 Q All right. And you can look there at Government Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 136 of 245136 1 Exhibit 18C, which has been admitted into evidence already. 2 you describe just what that document is for the jury? 3 A 4 or an oath of the office. 5 Q Do you have to sign that oath? 6 A Yes, sir. 7 Q All right. 8 is it? 9 A No, sir. 10 Q Whose oath is this? 11 A It says Eugenio Pedraza. 12 Q Did you take the exact same oath? 13 A I don't think it's changed. 14 yes, sir. 15 Q 16 that oath? 17 A Yes, sir. 18 Q All right. 19 Thank you. Can When you're appointed to a position, you take an affidavit And is this document -- this is not your oath, I think it's the same oath, Does every agent of the Office of the Inspector General take Could you go ahead and zoom in on the oath? Could you go ahead and read that oath? 20 21 A "I will support and defend the Constitution of the United 22 States against all enemies, foreign and domestic; that I will 23 bear true faith and allegiance to the same; that I take this 24 obligation freely without any mental reservation or purpose of 25 evasion, and that I will well and faithfully discharge the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 137 of 245137 1 duties of the office on which I am about to enter, so help me 2 God." 3 Q What does that oath mean to you? 4 MR. EASTEPP: 5 THE COURT: Judge, I object to that. Sustained. 6 BY MR. COONEY 7 Q 8 their roles and responsibilities. 9 moment about testifying in legal proceedings. Now, I want to talk a little bit more about line agents and We talked a little bit for a Agent Green, have 10 you yourself testified in criminal cases before? 11 A I have, yes, sir. 12 Q And have you also testified before grand juries before? 13 A Yes, sir. 14 Q To prepare for those proceedings, do you ever utilize 15 criminal investigative reports? 16 A Yes, sir. 17 Q And with the Office of the Inspector General, what are those 18 investigative reports typically called? 19 A Memorandums of activity or MOAs. 20 Q You sometimes refer to them for short as MOAs? 21 A Yes, sir. 22 Q How do you use MOAs to prepare to testify in criminal cases? 23 A Well, an MOA documents an event. 24 on an event, you read that MOA. 25 Q So to refresh your memory Have you ever utilized MOAs written by yourself to prepare Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 138 of 245138 1 for your own testimony in criminal proceedings? 2 A Yes, sir. 3 Q Have you ever used MOAs written by other agents to testify 4 in -- to prepare to testify in criminal proceedings? 5 A Yes, sir, I have. 6 Q And as part of your testimony in those other criminal 7 proceedings, have you ever had to rely on information that you 8 don't know personally, but that is contained in a report written 9 by another agent? 10 A Yes, sir, I have. 11 Q When you've relied on that information and when you go to 12 testify, do you take an oath to testify? 13 A Yes, sir. 14 Q Did you feel comfortable relying on information that you 15 don't know personally but that is prepared by another agent in a 16 report? 17 testify? 18 A Yes, sir. 19 Q Why? 20 A Because he is an agent just like I am. 21 Q And have -- are you aware of whether other agents have 22 utilized the reports that you have written in the past to 23 testify in legal proceedings? 24 A They probably have. 25 Q When you write reports, what are your objectives? Do you feel comfortable relying on that when you Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 139 of 245139 1 A To report the truth. To report an activity the way it 2 happened. 3 Q 4 there may be other agents like yourself who utilize the 5 information you report to testify in legal proceedings? 6 A Yes, sir. 7 Q Is it also utilized just in criminal investigations 8 generally, the information contained in those reports? 9 A Yes, sir. 10 Q For example, do you prepare investigative plans based on 11 them? 12 A At times, yes, sir. 13 Q Do you make decisions about what investigative steps to take 14 based on what's contained in reports authored by other agents? 15 A I do. 16 Q And, Agent Green, have you ever just taken over an 17 investigation from another case agent? 18 A Yes, sir. 19 Q What do you do when you take over an investigation from 20 another case agent? 21 A 22 and see where it's been, what the allegation is, what was done 23 so far to either substantiate or unsubstantiate that allegation. 24 Q 25 investigative reports or the MOAs contained in there? And are you aware when you report that information that Generally I sit down with that case file and go through it And to go through the case file and do that, do you read the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 140 of 245140 1 A Yes, sir, I do. 2 Q Is that the way you become familiar with the case? 3 A Yes, sir. 4 Q All right. 5 of 2011. 6 you. I'd like to turn now back to October or November You can go ahead and take down Exhibit 18C. Thank And incidentally, Agent Green, we had 18C up a second ago. 7 8 But that oath that you read, did you also complete a similar or 9 identical oath when you became a special agent with the 10 Department of Labor-Office of Inspector General? 11 A Yes, sir, I did. 12 Q I want to go back now to October or November 2011 when you 13 joined the McAllen field office or when you went down there from 14 Houston to help out. 15 went to McAllen, and how did you get your job started? 16 A 17 were down there and then just visiting with them in the halls, 18 visiting with them in the office, and then also pulling -- we 19 have a system that's called EDS. 20 System, I think is what it stands for, and we would pull -- I 21 would pull the current case load from each agent off of that and 22 create a list just to see what the caseload was for each one of 23 these agents. 24 Q 25 When you did that, what, if anything, did you observe about the What did you -- what did you do when you That first week I got to know some of the newer guys that It's an Enforcement Data When you observed that, what, if anything -- or excuse me. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 141 of 245141 1 office? 2 A Well, there were a lot of cases. 3 Q What do you mean by that? 4 A Each agent had, if I remember correctly, anywhere from 17 to 5 25, somewhere in there. 6 Q 7 a line agent in Houston? 8 A I had less than ten. 9 Q What was your view of the number in terms of relative volume How did that compare to the number of cases that you had as 10 of the McAllen field office caseloads for each of the case 11 agents? 12 A 13 time. 14 Q Why? 15 A Just the work that it requires, the time that you put in on 16 it. 17 would constantly be trying to get something done and you 18 couldn't. 19 Q Did you set out to do anything about that? 20 A I did. 21 Q What did you do? 22 A That was part of those printouts that I said earlier. 23 wanted to meet with each one of the agents and try to figure out 24 what cases they had that were the top, which ones -- I wanted to 25 see if they had any that were closer to a criminal prosecution It would be very difficult to work that many cases at one You would be, I would say, a shotgun approach to it. You You'd need to focus on at least a handful. And I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 142 of 245142 1 or that we could do something with that would result in some 2 type of remedy so we could get this done, you know, get -- get 3 some work done. 4 with each one of the agents and try to focus on what are your 5 best cases? 6 to 25 that you have? 7 Q Did you go about doing that? 8 A I did. 9 Q Now, before we talk about how you went about doing that, I And so that's what I wanted to do is sit down What do you think is the best group out of that 17 10 just also want to take another step back. When you went down, 11 what was your relationship? 12 terms of was he a supervisor or a -- an equal, or what was your 13 relationship to the defendant when you started in October or 14 November 2011? 15 A 16 charge. 17 Q Did you report to him? 18 A Well, not directly, but I did because I was in his office. 19 Q What were your marching orders when you went to McAllen? 20 A To go down and help those guys out. 21 Q Who provided those marching orders to you? 22 A Mr. Beauchamp. 23 Q Is that your current special agent in charge that you report 24 to now as well? 25 A And what I mean is professional in He was -- he was the supervisor. He was a special agent in He -- you know, I -- Yes, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 143 of 245143 1 Q And were you -- were you to report to the defendant at all 2 in that? 3 orders? 4 A 5 anything you need, we're here to help, that kind of -- 6 Q 7 when you got started, would you go to the defendant, or would 8 you report to Kirk Beauchamp in Houston? 9 A I mean, were you -- did he provide you any marching Did he provide you any guidance? We had conversations, but not so much guidance. It was If you needed guidance or support or had issues at that time I would go to Kirk Beauchamp, but I would have told 10 Mr. Pedraza what I was doing. 11 Q 12 caseloads and things like that as you described, was the 13 defendant aware of that? 14 A Yes. 15 Q Now, let's go back then to what you did with respect to 16 those caseloads you described. 17 out to try and do something about that? 18 A 19 go through their cases and figure out, like I said, which ones 20 were the best. 21 down with them. 22 Q 23 OIG? 24 A It does. 25 Q What is -- can you just explain to a jury how you got So when you went down there then to help out and review What did you -- how did you set Well, I wanted to sit down with each one of the agents and So that's what I did. I scheduled time to sit Does that process have a particular name that you use in It's called a file review. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 144 of 245144 1 about -- the jury how you go about conducting a file review? 2 A 3 have, we would schedule a time. 4 conference room or to my office with -- those ten files would 5 already be pulled, the original files, and we would sit down and 6 we would discuss each one of them. 7 would make notes. 8 Q 9 type of file review with Agent Robert Vargas and Agent Kristofor Sure. If you have 17 to 25 cases or ten cases, whatever you You would come to the I would make notes, and you Now, did there come a time where you scheduled those -- that 10 Healey? 11 A Yes, sir. 12 Q Was that sometime in October or November of 2011 when you 13 first got started? 14 A Yes, sir. 15 Q Did they work out of the McAllen office? 16 A They did not. 17 Q Where did they work? 18 A They were in Brownsville. 19 Q About how far is Brownsville from McAllen? 20 A About an hour. 21 Q But did they at the time report to the McAllen field office? 22 A They did. 23 Q So who was their supervisor at that particular time in 24 October or November 2011? 25 A Mr. Pedraza. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 145 of 245145 1 Q Now, where did you go -- did you go to Brownsville to do 2 this file review with them, or did you do it in McAllen? 3 A 4 about -- with the printouts. 5 scheduled, but that was done in the McAllen office in November. 6 Q 7 Did that occur in Brownsville? 8 A It did. 9 Q And what did you talk about with them when you met them in Well, initially I had gone over just to visit with them And then there was a file review Let's go ahead and talk about that first meeting with them. 10 Brownsville? 11 A 12 I'm still trying to get to know them, let them get to know me. 13 We had met. 14 Brownsville, so we had sat down over there. 15 about their cases and just in general, just visiting about the 16 work and the job and -- but the area where they're located 17 within that DEA is not real conducive to having conversations 18 that are private about, you know, allegations against Border 19 Patrol agents or -- I don't want to talk -- I don't want talk 20 names. 21 there. 22 Q 23 depth with them during that meeting? 24 A That's right. 25 Q What did you do when the meeting was done? Well, it was the first week I had met either one of them. And they're stationed in the DEA office in We were talking I don't know who else is in that cubicle world right So bottom line, were you not able to get into that much Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 146 of 245146 1 A I was going home that day back to Houston. 2 Q And how do you get to and from Houston, by the way? 3 how did you get to and from? 4 A 5 time I drive. 6 Q On that particular day, were you driving? 7 A I was. 8 Q So did you leave directly from the Brownsville DEA office, 9 or did you go somewhere else first? I drive. Then I either drive -- sometimes I fly, but most of the 10 A I went somewhere else. 11 Q Where did you go? 12 A Rudy's Barbecue. 13 Q And who did you go to Rudy's with, if anybody. 14 A It was Kris Healey and Robert Vargas, and then Della Saenz 15 joined us. 16 Q Why did y'all go to lunch together? 17 A I'm still trying to get to know them. 18 Q Did you all talk about the lunch during that office? 19 me. 20 Pardon me. 21 A 22 family and our kids and -- 23 Q Just getting to know each other? 24 A Yeah, just getting to know each other. 25 have -- Kris doesn't have any kids. Just build a rapport. Excuse Did you all talk about the office during that lunch? Not so much during the lunch. We kind of talked about I mean, they didn't But anyway, just talking Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 147 of 245147 1 just in general about the job and -- I don't remember. 2 Q 3 attention concerns they had about their work in the McAllen and 4 Brownsville OIG? 5 A Yes, sir. 6 Q Who? 7 A It was Robert Vargas. 8 Q What did Vargas say to you? At some point did anyone at that lunch bring to your MR. EASTEPP: 9 MR. COONEY: 10 11 Your Honor, I object to hearsay. It's not coming in for the truth, Your Honor. 12 THE COURT: 13 MR. COONEY: 14 THE COURT: Repeat -The question is -- well, I apologize. Okay. I'm going to overrule the objection. 15 Ladies and gentlemen, when you -- when -- you can't as a general 16 rule repeat something that someone else told you outside the 17 courtroom. You can't repeat it because it's hearsay. But Mr. Cooney has said that he's not asking this statement 18 19 to be entered for the truth of the matter asserted; therefore, 20 I'm going to let the witness answer it, but you're not to 21 consider this statement as merely -- as being truthful as 22 opposed to the fact that the statement was merely made. 23 BY MR. COONEY 24 Q 25 but just -- just briefly what is it that Agent Vargas revealed And we don't need to get into that much detail, Agent Green, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 148 of 245148 1 to you during this lunch? 2 A 3 that -- he said: 4 what? 5 that I was asked to sign are not true. 6 Q 7 referring to? 8 A The MOAs. 9 Q How did you react when you received that information? 10 A I couldn't believe what he had told me at first. 11 asked him again what are you talking about? 12 that some of the MOAs that are in the case files when we were 13 getting ready for inspection contained information that wasn't 14 true, and I signed them. 15 Q "I" being Robert Vargas signed them? 16 A That's correct. 17 Q I just wanted to clarify, not you signed them. 18 A No, sir. 19 Q What did you do when you received this information? 20 A I had all kinds of things going on in my head trying to 21 digest what I just heard and really didn't want to talk about it 22 anymore with him. 23 that point and call my boss or call someone. 24 Q Did you get out of there? 25 A I did. At the end of the lunch right before I left, he had said Dave, I got to tell you something. And he said: And I said Look, some of the documents that we have And just so we're clear, what kind of documents was he And I And he clarified I really just wanted to get out of there at Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 149 of 245149 1 Q Did you call your boss? 2 A Not right away, but I did a few miles up the road. 3 Q Did you call from your car? 4 A I did. 5 Q Was this on the way back to Houston? 6 A Yes, sir. 7 Q And just before you made that phone call when you drove 8 those few miles up the road first, what exactly was going 9 through your head? MR. EASTEPP: 10 11 Judge, I'm going to object to relevance of that. 12 THE COURT: Overruled. 13 THE WITNESS: I'm trying to -- I'm trying to digest what 14 I just heard and try to put some type of reasoning to what I 15 just heard. 16 BY MR. COONEY 17 Q Did you call Special Agent Beauchamp? 18 A I did. 19 Q Did you provide him this information that had been relayed 20 to you? 21 A I did. 22 Q Were you provided any instructions with respect to that 23 after you provided him that information? 24 A I did. 25 Q What instructions were you given? Just trying to figure out what I had heard. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 150 of 245150 1 A That was being handled, and we were starting from this point 2 forward, and don't get involved. 3 Q 4 before, that there was information that had been placed into 5 MOAs in McAllen that was false? 6 A I hadn't. 7 Q Were you angry about that? 8 A I was very angry. 9 Q Why? 10 A Because I got ambushed. 11 Q How so? 12 A My special agent, Mr. Beauchamp, obviously knew that 13 something had happened. 14 how I found out about it. 15 Q 16 you were able to perform your work in McAllen? 17 A 18 thinking at that point. 19 Q 20 way of thinking? 21 A 22 know about? 23 Q 24 impact criminal investigations underway in the McAllen field 25 office? Had you ever heard this allegation or this information And I had gone down there, and this is Now, once you received that information, did that impact how No. It didn't impact -- I mean, it changed my way of That's what I'd like to know about. How did it change your Well, I started questioning in my mind what else don't I When you received that information, did you think it could Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 151 of 245151 1 A At that point I was concerned about what Robert Vargas had 2 told me and his own falsehood on a possible document or that had 3 been -- this is -- we don't lie. 4 don't sign documents that aren't true. 5 Q Who's the "we" you're referring to? 6 A Special agents. 7 Q Why not? 8 A Well, there's a lot of reasons. 9 personal integrity issue. We don't lie on documents. We Why is this important? But, I mean, it's a It's a court issue. It's a legal 10 issue. 11 Q How is it a court issue? 12 A Well, it could be perjury. 13 don't lie under oath. 14 don't -- we're not supposed to do that. 15 investigates people who lie on documents and do bad things. 16 We're not supposed to do that. 17 Q 18 or truthfulness? 19 A 20 taught that in training. 21 you don't tell the truth and if you don't tell the truth on 22 documents and then those documents are used later, Giglio is put 23 into our head over and over and over. 24 Q Can you explain to the jury what Giglio means? 25 A It basically is if you -- It could be -- we don't lie. We don't lie on the documents. We We We're the agency that How important to a special agent's work is his credibility It can be a career ender if you -- if you don't. We're We're taught that over and over. If Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 152 of 245152 1 Q Just in short parlance. 2 definition, but just what it means to you as a special agent. 3 A 4 something that can affect your credibility in court, then 5 that -- your credibility from that point forward is questioned. 6 So anything I bring up to the court later, that's going to come 7 up. 8 believe you now?" 9 Q Sure. You don't have to give a legal If you -- if you lie under oath or commit perjury or "Well, you weren't telling the truth then. Why would we Now, after you learned this information, did you then go 10 forward, go about what you had set out to do, which are these 11 file reviews with each of the individual agents? 12 A I did. 13 Q I'd like to go ahead and show you what's already been 14 admitted into evidence as Government's Exhibit No. 9. 15 MR. COONEY: 16 THE COURT: 17 MR. COONEY: May I approach the witness, Your Honor? You may. Thank you. 18 BY MR. COONEY 19 Q 20 take a look at Government's Exhibit No. 9. 21 tell the jury briefly what it is? 22 A It appears to be an original case file. 23 Q And can you actually just hold it up so the jury can see it? 24 If you can close it and hold it up. 25 A Agent Green, could you just -- could you actually -- well, (Witness complies.) And can you just Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 153 of 245153 1 Q What color for the record is it? 2 A It's blue. 3 Q What do you mean by original case file? 4 A There's -- there's two case files for each investigation. 5 When an investigation is open, there's an original case file, 6 and this one is kept in a file room under lock and key. 7 then there's a working case file, which is a mirror image of 8 that case file, and the agent keeps that with copies of various 9 documents, and it's their working file. And 10 Q What do you mean -- and what does an agent do with a working 11 file? 12 A 13 they produce an MOA from an activity, then we approve that MOA, 14 the original goes in the original case file in the file room, 15 and the agent gets a working copy of that MOA so they have that 16 to work off of. 17 Q Why are the original case files kept under lock and key? 18 A To maintain the integrity of the file. 19 Q Now, do you use the original case file when you are doing 20 case reviews or file reviews? 21 A I do. 22 Q How do you use them? 23 A Well, like I explained earlier, they would -- our 24 administrative assistant, then it was Cindy Hinojosa, would 25 bring in the case files. Well, like, for instance, the MOAs we're talking about. If And they would be all stacked up, and Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 154 of 245154 1 I would take each file and go through it. 2 Q 3 in McAllen, where exactly did you do it? 4 A In the conference room at the McAllen office. 5 Q I mean, did you essentially stack up all these files in the 6 conference room and then go through them with the agents one by 7 one? 8 A 9 that I could make some notes and figure some things out if I had So when you did these file reviews with the special agents I did. I went through them usually the night before also so 10 questions that way. 11 read through the whole file. 12 I may have also done them in another office, but they were done 13 in McAllen. 14 MR. COONEY: 15 THE COURT: 16 MR. COONEY: So they didn't have to sit there while I I tried to do as many as I could. May I approach the witness, Your Honor? You may. Thank you. Let me just take that back real quick. 17 I'm going to put up 18 on the ELMO if I may, Ms. Sustaeta. 19 BY MR. COONEY: 20 Q 21 file. 22 Government's Exhibit No. 9. 23 that is? 24 A 25 the notes we made during a case file review. I'm just pulling this, Agent Green, directly from the case I'm going to place a document here on the ELMO from Can you describe for the jury what At the time this was our case review worksheet. This was Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 155 of 245155 1 Q Now, let's just walk through the information on it. 2 Obviously you can see the case number in the upper left-hand 3 corner; is that right? 4 A Yes, sir. 5 Q And the case agent. 6 A The person assigned to that investigation. 7 Q All right. 8 A Special agent. 9 Q So for this particular one, it's Della Saenz; is that right? 10 A Yes, sir. 11 Q All right. 12 supervisor initials. 13 A Yes, sir. 14 Q Right there. 15 A Those are mine. 16 Q Is this a case file review sheet that you filled out? 17 A It is. 18 Q And just generally, what does something like this reflect? 19 This particular one, but then also just case review sheets like 20 this. 21 A 22 the case agent on December 8, 2011, where I reviewed it, we 23 discussed it, and where I gave her some direction. 24 Q 25 review sheets that you place in every file after you do a file Sure. Who does that refer to? And so -- Now, down here there is an area called Whose initials are those? This is memorializing a meeting between myself and And are these the kind of case file review sheets or file Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 156 of 245156 1 review with agents? 2 A Then, yes. 3 Q And when you say "then," what do you mean by then as opposed 4 to -- 5 A 6 change. 7 Q So the form looks different? 8 A That's correct. 9 Q But is the information that you put in the form essentially Our process has changed. We have new forms and things 10 the same even now? 11 A That's correct. 12 Q How -- is there a DHS-OIG policy about how often file 13 reviews should be conducted? 14 A Yes, sir. 15 Q How often should they be conducted? 16 A Quarterly. 17 Q And who is responsible in an office for conducting file 18 reviews? 19 A The supervisor. 20 Q And that's a responsibility you essentially assumed when you 21 came in in October and November 2011 in the McAllen field 22 office? 23 A That's correct. 24 Q Now, I want to show you -- 25 A Well, if I can clarify? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 157 of 245157 1 Q Please, go ahead. 2 A It is a responsibility that I did, but that was through 3 conversations with Kirk Beauchamp and also Mr. Pedraza that I 4 was going to do file reviews and again to try to figure out -- 5 that's the best way to figure out what's going on with these 6 cases, is to have file review with the one -- one on one with 7 the agents and also to build rapport with them. 8 Q 9 testifying to, is this was -- I take it this was a process to go And I guess just to put a finer point on what you have been 10 by and learn about the agent's cases, their caseloads and the 11 steps they needed to take and things like that? 12 A That's right. 13 Q Now, I'm going to put the next page from this file on the 14 ELMO. 15 A It's another case review worksheet, case file review. 16 Q Now, do you recognize the supervisor initials on this case 17 review sheet? 18 A I do. 19 Q I'm just moving it up. I'll start there. What is that? Whose initials are on this case review sheet? 20 21 A Mr. Pedraza. 22 Q Okay. 23 A Yes, sir. 24 Q Now, when you -- you had testified earlier that when you 25 prepare for these file reviews, you essentially went in, kind of Is that E.P.? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 158 of 245158 1 looked at the file. Did you look at the old or the existing 2 case file review sheets that were in those files? 3 A I did. 4 Q Did the files that you had -- that you looked at for the 5 agents -- and actually let me ask a bigger question, by the way. 6 How many files are we talking about that you reviewed with 7 agents in this period when you started doing case reviews? 8 A 9 150. It's been a long time ago. I'm going to guess there were I mean, there was at least 20, 17, 20, 25 per agent, so... 10 Q But safely more than a hundred cases? 11 A I think so. 12 Q Did all of those files have case review sheets like this one 13 completed by a supervisor? 14 A They did. 15 Q And were most of them or all of them completed, you know, 16 containing ones like this with Mr. Pedraza's initials? 17 A I think that's right. 18 Q And so was it all or most or what's the -- 19 A Well, most. 20 done by the previous supervisor, William Jody Warren. 21 Q 22 worksheet that there is more space here at the bottom. 23 last one reflected here was September 2, 2011; is that right? 24 A Yes, sir. 25 Q Now, this case review sheet that I'm going to put back on I think that's fair. I'm going to say most all. There were a few Now, I just see here on this document, on this case review And the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 159 of 245159 1 that you completed, this is for the same case file, correct? 2 A That's correct. 3 Q And you started a new form; is that right? 4 A That's right. 5 Q Is it typical when a new supervisor reviews a file to put in 6 a new form, or do you typically pick up where the form left off? 7 A No, sir. 8 Q Is there any particular reason why you did not pick up where 9 this left off? It should have started where that left off. 10 A There were a lot of reasons. Just -- 11 Q Well, let me ask a more direct question. 12 reviews, did you ask the special agents that you conduct these 13 reviews with about their prior file reviews with -- in the 14 office? 15 A I didn't ask. 16 Q What information was offered to you while you were 17 conducting these file reviews? During your file It was offered. 18 MR. EASTEPP: Object to hearsay, Your Honor. 19 MR. COONEY: Same response as before, Your Honor. 20 THE COURT: Well, let me -- Agent Green, let's not 21 repeat any verbatim statements that anyone told you. 22 you can answer this question without hearsay. 23 BY MR. COONEY 24 Q 25 information that you were provided. I think And I think if you can provide the sentiment of the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 160 of 245160 1 A I just questioned the validity of the case review 2 worksheets. 3 Q 4 concerned whether file reviews had happened at all prior to you 5 conducting them in the office? 6 A Yes, sir. 7 Q So then why did you complete your own case file review 8 worksheet as opposed to continuing on the one in this particular 9 file? Based on information you were provided, did you become 10 A Taking the advice that I was given to start over, move on 11 from this point forward. 12 want anything to do with that. 13 start over. 14 Q 15 sheets here. 16 you find something like this in the -- or take this action, 17 complete your own file review sheet as opposed to using the 18 existing file review sheet when you were doing the file reviews 19 in October, November, December 2011? 20 A 21 write on and then started doing my own, so I couldn't tell you 22 the exact numbers. 23 few. 24 then decided to take the advice I was given and just start over. 25 Q So based on my suspicion, I didn't I wanted a new sheet and just We've just kind of walked through these two case review Is this, is what you've described, how often did I don't remember exactly. I know that some of them I did But at some point I did decide -- I did a I can't tell you how many a few is, but I did a few and And again, that was because you were concerned about the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 161 of 245161 1 validity of the information in those file review sheets? 2 A That's correct. 3 Q After you completed case file review sheets in this time 4 period that we've been talking about, October, November, 5 December 2011, did you set about doing another set of file 6 reviews subsequent to that, after that? 7 A I did. 8 Q Approximately when did you go about doing that? 9 A March; late February, March. 10 Q Was that essentially the next quarter? 11 A Yes, sir. 12 Q So would this have been the next quarter after you did these 13 October, November, December type reviews, and now you're doing 14 February and March reviews; is that right? 15 A Yes, sir. 16 Q Was this before or after the defendant was placed on 17 administrative leave? 18 A After. 19 Q And so at this time when you did this second set of reviews 20 in February and March, what was your title then? 21 resident agent in charge at that point? 22 A 23 been right after he was -- right after Mr. Pedraza left. 24 Q 25 you had the title or not; is that fair? Possibly. Was it acting It's -- it's a little fuzzy, but it would have Functionally you were the resident agent in charge whether Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 162 of 245162 1 A That's correct. 2 Q Did you go about preparing for these file reviews the same 3 way that you did, the ones that you did back in November? 4 A I didn't. 5 Q What was different this time? 6 A Well, I just had all the files brought into the conference 7 room, and then Ms. Hinojosa would put the -- she would do the 8 printout, pull the files and put the printout on top of that 9 stack for that person. 10 Q When you say printout, is this essentially a printout 11 listing the cases assigned to a particular agent? 12 A That's right. 13 Q What, if anything, did you discover when you went about to 14 do these file reviews in February and March 2012? 15 A The case file review sheets were gone. 16 Q What case file review sheets? 17 A The ones I had seen before from Mr. Pedraza, mine, gone. 18 Q Case file review sheets just like the ones that we showed up 19 here in Government's Exhibit No. 9? 20 A Yes, sir. 21 Q Did you discover that when you set out to do your first file 22 review back in that time period? 23 A I did. 24 Q So would that have been in February of 2012? 25 A That's correct. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 163 of 245163 1 Q What did you do when you saw the case file review sheets 2 were missing from case files that you did during this first 3 review? 4 A 5 So I just went through this stack and pulled a few, and they 6 were gone. 7 would ask him to hand me a few of those other files across. 8 looked. 9 get back to this in a minute. Well, they were stacked on the wall, the different stacks. And then the agent that I was doing the review, I They were gone. I And then I said, you know, well, we'll 10 Q And for these that we're talking about right now in this 11 first file review, were you confident at that point that there 12 had been case file review sheets in that file -- in those files? 13 A Absolutely. 14 Q Did you conduct any kind of investigation or inspection of 15 other files at that time? 16 A I did. 17 Q What did you do? 18 A Well, we had an intern at that time, and I talked to the 19 intern, who denied any knowledge of it. 20 Ms. Hinojosa, who also denied any knowledge of it. 21 Q 22 few from the first file review? 23 A I did. 24 Q How many files did you go back and inspect? 25 A Well, eventually we went through all of them in the file What did you do, and what did you learn? I talked to But specifically did you look at files beyond just the first Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 164 of 245164 1 room. 2 Q What is -- how many is all of them? 3 A Like I said, over a hundred. 4 I don't know. 5 Q 6 files, how many were missing case file review sheets? 7 A Most all. 8 Q Some like Government Exhibit No. 9 -- 9 A That's right. 10 Q -- that did still have file review sheets? 11 A Yes, sir. 12 Q All right. 13 that you looked at these files, was it more common for file 14 review sheets to be missing or more common for file review 15 sheets to be intact like this particular file? 16 A Well, they should have been in there. 17 Q But what was more common? 18 there? 19 A To be there. 20 Q At that time in February of 2012? 21 A I'm confused about your question. 22 Q It's my fault, Agent Green. 23 for how big an issue did you have when you first discovered that 24 there were file review sheets missing? 25 talking about they were missing from? Less than a hundred, around -- Around there. When you did that, when you looked at those hundred or so We did find some. But was it -- in February of 2012 at the time For them to be there or not be Oh, to not -- I'm just trying to get a sense How many files are we Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 165 of 245165 1 A Like I said, the majority of them. There were only a few. 2 I would say less than 20, maybe even less than ten that we found 3 that had the case file review sheets in them. 4 inspection, they were there during that file review, during the 5 case file review. 6 Q 7 official case files are kept are kept under lock and key; is 8 that right? 9 A That's correct. 10 Q At the McAllen field office, what does it mean to be under 11 lock and key in terms of what kind of lock is it? 12 automatic lock or a traditional key lock? 13 A 14 in a secured room. 15 has our picture on it and you can -- well, then it didn't. 16 it was just a white card, but electronic key. 17 The door would click open. 18 Q 19 that case file room back in February of 2012? 20 A I had thought so, yes. 21 Q Was an alternative way to get in there? 22 A Yes. 23 Q What was the alternative? 24 A Well, if you had a master key, you can unlock the door. 25 can bypass the electronic system and just unlock the door and go My previous Now, the -- you had said before that the room in which the Well, it's both. Is it an I say lock and key just meaning that it's That room is accessible by a key card. It Then You'd touch it. You could go inside. Did you always need to use an electronic key to get into You Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 166 of 245166 1 in. 2 Q 3 keep -- to your knowledge, keep a record of who keys in that 4 door? 5 A It does. 6 Q If you use the traditional lock and key, does it keep an 7 electronic record of who's unlocked the door and entered? 8 A 9 it would -- they're motion activated, so it would trigger. Now, I take it the electronic system keeps -- does it No, sir. There are cameras in there that when you went in, But 10 no, there's not an electronic record of that that I know of. 11 Q 12 file review sheets were missing? 13 A I was. 14 Q Why? 15 A Well, I have to start all over. 16 the other file review, so when I sit down with the agent to see 17 what I had assigned them to do or what our goals were on that 18 case from the previous file review, now they're gone, so I had 19 to start all over. 20 Q 21 criminal case files, potential impact does it have? 22 A 23 but -- I mean, as far as the integrity of the case, it 24 wouldn't -- it wouldn't have any issues with the case file 25 itself. Just so we're clear, were you upset when you discovered that Those are all my notes from It was a lot of work. What impact does that have on the investigations in those Well, it would slow the forward progress of them down, It's more of an administrative process that we would go Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 167 of 245167 1 through to keep that case on track and finished in a timely 2 manner. 3 Q Could it slow the investigation down? 4 A Absolutely. 5 Q When you discovered this, what did you do with that 6 information? 7 A I called my supervisor, Mr. Beauchamp. 8 Q By that point when you discovered the file -- the case file 9 review sheets missing, were you aware whether there was an FBI 10 investigation going on? 11 A I believe so. 12 Q Did you report this information to the FBI? 13 A I did. 14 Q All right. 15 At any point, either subsequent to that or in this same time 16 frame, did you become aware whether -- or did other agents make 17 you aware whether they had placed false information in criminal 18 investigative activity reports? 19 A Yes, sir. 20 Q What agents made you aware of that? 21 A Edwin Castillo, Rolando Gomez. 22 Q Let's talk -- 23 A Robert Vargas. 24 Q And by this point -- you already knew about Robert Vargas 25 for sure at this point; is that right? I believe at that time I did know. Now, move to a little bit of a different topic. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 168 of 245168 1 A That's correct. 2 Q How is it that you came to learn this information from Edwin 3 Castillo? 4 A 5 me. 6 Q 7 there were missing file reviews, file review sheets? 8 A Yes, sir. 9 Q And were there file review sheets missing from files that he We had done a file review, and the following morning he told Was this one of the file reviews in February of 2012 where 10 was investigating? 11 A Yes, sir. 12 Q Now, with respect to Agent Gomez, how is it that you came 13 into possession of this information? 14 A 15 anyway, there was a complaint that was lodged against Mr. Gomez, 16 and I had had a conversation with someone about that. 17 as part of that conversation, that's how I became aware of it. 18 Q 19 out that an allegation had been made with respect to Agent 20 Gomez? 21 A 22 a phone call from an activist -- I can't remember his name at 23 the moment -- in Dallas, I think it was, and he wanted to talk 24 to his supervisor. 25 Q I had received a phone call from a -- an activist or -- And let's go ahead and be specific. He had called me. And then First, how did you find Mr. Gomez had called me. He had received Did this -- did this allegation that we're talking about, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 169 of 245169 1 did this relate to the treatment of a confidential source? 2 A 3 confidential source, but -- 4 Q 5 a confidential source is? 6 A 7 provides information to law enforcement usually for a fee or for 8 a public benefit. 9 Q That's correct. I'm not sure if she was an informant or a And just for the jury's benefit, can you just tell them what A confidential source or informant is just someone that And particularly in the McAllen field office, is it common 10 to provide what's referred to as I-94s to confidential sources? 11 A Yes, sir. 12 Q What is an I-94? 13 A It's an immigration document that allows them to move back 14 and forth from Mexico to the United States and to move interior 15 into the United States. 16 Q Why is this necessary? 17 A Well, if you're an undocumented alien, you need this 18 document to move forward. 19 make -- we cannot work, quote-unquote, work illegal aliens. 20 have to have good sources of information, so we have to make 21 sure that they're legal. 22 history. 23 and so forth. 24 Q What kind of activities do you use confidential sources for? 25 A Gosh, anything. But then also it's our requirement to We We have to work their criminal We have to see what -- why they're here, their history So it's a long process. That's a long answer. Undercover operations, meets, phonecalls. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 170 of 245170 1 Q Is it necessary to use undocumented individuals in order to 2 essentially obtain information about border corruption? 3 A Yes, sir. 4 Q Would it be possible to do your job without confidential 5 sources like that? 6 A 7 someone on the inside. 8 Q 9 activist, did you provide any instructions to Agent Gomez about It is possible, but it's much easier sometimes if you have Now, going back to Agent Gomez. After you spoke with this 10 the allegations concerning the treatment of the confidential 11 source? 12 A I did. 13 Q What instructions did you provide him? 14 A I told him that I had referred him to our -- the complaint 15 hotline at headquarters and that maybe you should prepare for 16 it. 17 statement, whether you use the statement just as notes or 18 whether or not you're going to give that statement to our 19 investigators. 20 Q 21 treatment of sources and things like that, are these all 22 together uncommon allegations against agents? 23 A They're not uncommon. 24 Q And at that time, did you know anything about the merits of 25 this allegation? Review the case file, make some notes, go ahead and write a And just for the jury's benefit, are allegations about the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 171 of 245171 1 A I did not. 2 Q Now, in the course of -- after you provided instructions to 3 Agent Gomez, did he -- did he inform you anything about this 4 particular confidential force -- source and this particular case 5 file? 6 A Can you be more specific? 7 Q After you provided him these instructions, I guess, did he 8 go back and write a report about what had occurred? 9 A He did. 10 Q Did you have any conversations with him about this specific 11 case in which the allegations were made against him? 12 A I did. 13 Q All right. 14 you? 15 A 16 MOA that was in the case file that was signed, and the contents 17 of that MOA were not true. 18 Q 19 instructions to go back and look at the case file and 20 essentially write a report about it? 21 A Yes, sir. 22 Q What was your reaction when you received that information? 23 A Same as before. 24 Q Did he write a report on that case file after he revealed to 25 you the information about the falsified MOA? What -- what exactly did Agent Gomez reveal to He had revealed that there were again MOAs. There was an Did he provide you that information after you gave him the I just -- I can't believe what I'm hearing. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 172 of 245172 1 A He wrote -- he wrote a statement, yes, sir. 2 Q Did he provide you a copy of that statement? 3 A He did. 4 Q Did you review it? 5 A I did. 6 Q Did you give him any feedback on that? 7 A I did. 8 Q What feedback did you give him, or what was your reaction 9 when you read it? 10 A Well, he didn't -- with the audience being a possible 11 special investigation unit from our own agency and based on what 12 he had told me, he didn't put in his statement or he didn't put 13 in that report what he told me exactly. 14 but he -- he never really -- I call it owned it. 15 really owned it. 16 Q What didn't he own? 17 A That there was a document in that case file that contained 18 false information. 19 Q Did you do anything about that? 20 A Well, I initially sent him a message back, an email, and I 21 may have talked to him. 22 it. 23 Q Were you upset that he didn't own it? 24 A I was. 25 Q Why? He kind of skirted it, He never But I said, you know, you got to own Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 173 of 245173 1 A Well, I was more shocked than -- I'm not believing what I'm 2 hearing. 3 was -- it was disgusting. 4 Q 5 reaction were you having about the McAllen field office? 6 A In general? 7 Q Yeah, when you were receiving this information from agents 8 about false information in reports. 9 A Well, I just kept thinking, "What else?" 10 Q Did you report the information up your chain about Agent 11 Gomez? 12 A I did. 13 Q Did you report it to the FBI? 14 A I did. 15 Q Now, as a result of the information that you received from 16 Agent Vargas, Agent Castillo, and Agent Gomez, did you have to 17 take any action with respect to their roles in criminal 18 investigations? 19 A I did. 20 Q What action did you take? 21 A Well, I was ordered to -- by Mr. Beauchamp who had talked to 22 someone in headquarters to place them first of all I called it 23 on the bench so I would -- they were not to be involved in any 24 administrative or any criminal cases, anything. 25 couldn't -- they couldn't witness any interviews. And to even have to deal with that is just -- it I mean, it just made me angry. Now, as you began to learn all this information, what if any They They couldn't Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 174 of 245174 1 be involved in any enforcement actions that they would have to 2 be a credible witness. 3 Q 4 to be supervised at that point? 5 A 6 to the integrity of the current caseload. 7 Q 8 or active cases that -- oh, and actually I'm sorry. 9 a different question, Agent Green. Why -- why did they have to be benched? Why did they have Well, at this point there's questions of their credibility We had no choice. Now, at that point, were there any particular investigations Let me ask Is that essentially what you 10 were referring to earlier as a Giglio problem? 11 A Yes, sir. 12 Q Did these agents at this point have a Giglio problem? 13 A Well, I can't make the determination, but -- 14 Q Based on the information that Gomez, Castillo and Vargas had 15 provided you, did they have a Giglio problem? 16 A In my opinion, yes. 17 Q And did -- at that point were there other agents that you 18 also had to put on the bench, as you say, or who had a Giglio 19 problem? 20 A Yes, sir. 21 Q What agents? 22 A Camillo Garcia was placed on administrative leave and -- 23 Q What about Wayne Ball? 24 A Oh, yes, sir, Wayne Ball. 25 Q Now, were there any specific cases that the Giglio problem Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 175 of 245175 1 of any of these agents had a direct impact in the time frame 2 that you're doing this? 3 A One. 4 Q Sure. 5 A -- with Wayne Ball and with Camillo Garcia, it wasn't 6 necessarily a Giglio issue that put them. 7 reasons. 8 of that I was privy to, and not all the information -- I was in 9 a very awkward position where I was more or less the process One case in -- but I want to clarify that -- There were other suspicions. There were other There were other -- some 10 server. 11 Q 12 and Gomez. 13 Giglio problem? 14 A In my opinion, yes. 15 Q And so then as a result of that, did you bench them? 16 A Yes. 17 Q And this was before placing them on administrative leave; is 18 that right? 19 A That's correct. 20 Q And just so we're clear, about what time frame are we 21 talking about right now? 22 A That would have been spring, late spring 2012. 23 Q Were there any active cases that placing -- that the Giglio 24 problem associated with these agents had a direct impact on? 25 A So then let's just go ahead and stick with Vargas, Castillo Again in your view at that point, did they have a Yes, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 176 of 245176 1 Q What case is that? 2 A There was a case -- 3 4 MR. EASTEPP: I believe this was a subject of a pretrial ruling. 5 THE COURT: 6 (At the bench) 7 Judge, I'm going to object. Y'all come up here. MR. EASTEPP: In my motion in limine cases, it was 8 number -- it's the one that says that there was an effect on any 9 of these. No. 3, the alleged improper documents had any effect 10 on the rights of any person being investigated could have had an 11 effect on any future criminal or civil case. 12 get into this, that the cases were killed because of this. 13 People's rights were affected. 14 MR. COONEY: Now he's trying to Well, it's not -- first of all, I think 15 that the motion in limine related to the specific documents 16 we're talking about. 17 to testify to now, is that because I had to park Gomez and 18 Castillo, they were involved in a case that had been charged 19 that involved a false statement charge. 20 statement. 21 them, and so the charge against that individual was dismissed. 22 But I'll tell you exactly what he's going They had taken the And because of their Giglio problem, we had to park I mean, it illustrates exactly the problem. And what I know 23 is that -- about his testimony so far is that he's testified 24 about these individuals admitting to falsifying documents. 25 hasn't fingered Pedraza because he doesn't know about it, and He Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 177 of 245177 1 I've essentially redacted his testimony in that respect. 2 he's giving the jury an understanding of what a Giglio problem 3 is, what an impact it has, and that these individuals led them 4 to actually take this kind of action. 5 MR. EASTEPP: 6 already got him to say that. 7 8 9 THE COURT: That's already in the record. Okay. But He's But what's -- what's wrong with him going the next step here? MR. EASTEPP: I think it's the -- it's getting into that 10 area that somebody's rights were affected or could have been 11 affected. 12 THE COURT: Well, it's not that their rights could have 13 been affected as much as that they -- what I'm hearing him say 14 is they refused to prosecute a case because of it. 15 16 MR. EASTEPP: MR. COONEY: 18 THE COURT: 19 MR. EASTEPP: 20 he's talking about? 21 that's my pitch. 23 24 25 It wasn't a prosecuting decision. 17 22 The agency made that decision. That's not right. One at a time. Go ahead, finish. The testimony -- Smith, is that the one He's an AUSA in Houston. But -- well, I think it's getting into that area. THE COURT: I'm going to let him go. You can answer that -- ask the question you just asked, but that's it. MR. COONEY: So just so that I'm clear, though, can I elicit from him that there was a case involving criminal Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 178 of 245178 1 allegations against a defendant -- 2 THE COURT: 3 MR. COONEY: That got dismissed. -- that got dismissed, and the reason is 4 because the agent through the witnesses, who were Castillo and 5 Gomez -THE COURT: 6 7 If he knows the reason. I don't want him guessing. 8 MR. COONEY: 9 THE COURT: 10 Right. He does. I'm confident he does. All right. (Open court) 11 BY MR. COONEY 12 Q 13 few questions here. 14 of all, was it -- was this a case that Agents Castillo and Gomez 15 were involved with? 16 A Yes, sir. 17 Q Had someone been charged in this particular case? 18 A Yes, sir. 19 Q Who is the person that had been charged? 20 A His last name was Leal. 21 Q And just briefly, what was the charge or the allegation 22 against Leal? 23 A 24 false statement. 25 Q Special Agent Green, let's just continue. Let me ask you a This case that you're referring to, first A violation of civil rights, civil liberties, and making a And can you just provide a jury a brief description of what Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 179 of 245179 1 a false statement charge is? What does it mean? 2 A 3 writing to a federal law enforcement officer. 4 Q 5 allegedly made a false statement to? 6 A Rolando Gomez and Edwin Castillo. 7 Q As a result of the information that they provided to you 8 about their role in falsifying documents, were you comfortable 9 with them testifying as to the statements that Leal had made A false statement is when you provide a false statement in Who were the federal law enforcement officers that Leal had 10 that were allegedly false? 11 A 12 prosecuting attorney. 13 Q Did you report it to the prosecuting attorney? 14 A I did. 15 Q Did the government go forward with that false statements 16 charge? 17 A They did not. 18 Q What happened to it? 19 A I believe it was dismissed. 20 Q And again, all this happened after Castillo and Gomez 21 provided you information about their role in falsifying 22 documents? 23 A I thought that that information needed to be reported to the That's correct. MR. COONEY: 24 25 moment? May I have the Court's indulgence for one Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 180 of 245180 1 BY MR. COONEY 2 Q One other question, Agent Green. 3 A Yes, sir. 4 Q That conference room in the McAllen field office where you 5 did the file reviews, is there a recording, an audio recording 6 device in that room? 7 A Not to my knowledge. 8 Q Are there any audio recording devices in the McAllen field 9 office? 10 A Other than the ones we control for undercover operations, 11 not that I'm aware of. 12 Q 13 conversations, meaning agent's conversations within the DHS 14 McAllen field office, are those audio recorded? 15 A What I mean is on a day-to-day basis, are your Not that I know of. 16 MR. COONEY: I don't have any further questions. 17 THE COURT: 18 MR. EASTEPP: Mr. Eastepp, cross-examination? Yes, sir. CROSS-EXAMINATION 19 20 BY MR. EASTEPP 21 Q Good afternoon, Mr. Green. 22 A Good afternoon, sir. 23 Q We obviously know each other. 24 A Yes, sir. 25 Q Before my retirement as a federal prosecutor in Houston -- Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 181 of 245181 1 A Yes, sir. 2 Q -- we actually kind of worked a little bit together. 3 much, but some. 4 A (Nod indicated.) 5 Q And certainly have bumped into each other over the years. 6 A Yes, sir. 7 Q In fact, the last time I think I recall bumping into you, 8 you have not talked to me about this since I've been 9 representing Mr. Pedraza, correct? Not 10 A That's correct. 11 Q We did bump into each other when Greg Costa was sworn in as 12 a federal judge in Galveston. 13 but that would have been like August of 2012, as I recall. 14 A I think that's right. 15 Q Sound right? We had a very brief conversation, But have you ever been thrown into a worse mess in your 16 17 federal career than what your agency did to you when they sent 18 you down here? 19 A I haven't. 20 Q And I'm sure there's been a lot of disheartening moments for 21 you since you've been sent down here, correct? 22 A Yes, sir. 23 Q But I want to go back in time before, which is -- if you 24 started in '04; is that right? 25 A I think that's right, yes, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 182 of 245182 1 Q Okay. You were in Houston? 2 A Yes, sir. 3 Q Okay. 4 A Ava Malone was my direct supervisor, and Dave Smith was the 5 special agent in charge. 6 Q And what was Ron Moore's position back in that time period? 7 A He was the ASAC. 8 Q And was McAllen back then part of the Houston office as a 9 territorial supervisory issue? Who was the supervisor in Houston at that time? 10 A Yes, sir. 11 Q And what was the McAllen office all the way back then? 12 A I don't remember. 13 field office. 14 Q 15 term? 16 A Yes, sir. 17 Q What does that mean? 18 A A resident agent in charge office. 19 I'm not really sure what the -- what constitutes that, being a 20 RAC office versus a suboffice, but it would have been 21 established with a resident agent in charge is my understanding. 22 Q 23 in charge. 24 A That's correct. 25 Q And that's true of most agencies. I think a field office, but -- we were a They were a suboffice, I think. And at some point became a RAC? Are you familiar with that A suboffice, not a -- So a resident agent in charge is less than a special agent Those terms are kind of Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 183 of 245183 1 used throughout the federal government, correct? 2 A Yes, sir. 3 Q The FBI uses them, for example. 4 A Yes, sir. 5 Q Back when McAllen was still a RAC, do you know what Gene 6 Pedraza's position was within the agency? 7 A 8 resident agent in charge or RAC, but he was in a supervisory 9 capacity down there. Not for certain. Do you recall? I mean, I think I remember him being a 10 Q And he would have been supervised by whom at the Houston 11 level? 12 A Either Dave Smith or Ron Moore. 13 Q And both Dave Smith and Ron Moore came from different 14 federal agencies after DHS-OIG was created. 15 A That's correct. 16 Q Dave came from State; Ron came from Treasury; is that right? 17 A Well, they were both Treasury, but that's correct. 18 come from State to Treasury, Dave Smith, and then -- 19 Q Treasury to -- 20 A Both Treasury, and then Treasury got taken into Homeland 21 Security. 22 Q 23 time period between the Houston management and Mr. Pedraza and 24 the agents in McAllen? 25 A Okay. He did Do you know how case reviews were being done in that I don't. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 184 of 245184 1 Q Do you recall Mr. Moore flying down here a bunch and doing 2 them face-to-face or any of that sort of stuff? 3 MR. COONEY: Objection. 4 MR. EASTEPP: 5 THE COURT: He already answered no. I was asking if he recalled. Go on to the next question. 6 BY MR. EASTEPP 7 Q How were they doing your case reviews in Houston? 8 A In what time period? 9 Q When it was Dave Smith and Ron Moore. 10 A Ava Malone was my direct supervisor, so she would do my file 11 reviews. 12 and we would go through my cases. 13 Q 14 still had a much lighter caseload than what was going on down 15 here? And it was as I described. Even back then would be it be a fair statement that Houston MR. COONEY: 16 I would sit in her office, Objection. Just in terms of -- I don't 17 understand the time frame that we're talking about right now. 18 BY MR. EASTEPP 19 Q THE COURT: 20 21 When it was still a RAC agency. Go ahead. You can answer it if you understand the question. THE WITNESS: 22 I think so. But I guess the correct 23 answer as I'm sitting here is I don't know. 24 BY MR. EASTEPP 25 Q Okay. I'm guessing. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 185 of 245185 1 A I don't know. 2 Q How early did you start coming down here to help out? 3 A I think it was '06, '07, probably somewhere in there. 4 Q Okay. 5 coming down here? 6 A Mr. Pedraza. 7 Q And do you remember your very first or earliest meeting with 8 him? 9 A So who was the supervisor in McAllen when you started I don't. I came down so often during that time. I was 10 doing the technical agent thing, so I would come down and help 11 out and also help out with cases. 12 Q 13 and the flow of cases and what was going on in the McAllen 14 office when it was still a RAC in '06 or '07? 15 A Yes, sir. 16 Q Was it busy? 17 A It was very busy. 18 Q Was there a lot of paperwork? 19 A Yes, sir. 20 Q Did you -- when you were down here, would you go into 21 Mr. Pedraza's supervisory office and sit there and have 22 conversations with him? 23 A Yes. 24 Q Would they include talking about the caseload and what was 25 going on with cases? Did you get an impression that early on as to the caseload Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 186 of 245186 1 A Yes, sir. 2 Q Big volume? 3 A Big volume. 4 Q And does all that paperwork have to flow through a 5 supervisor eventually? 6 A Yes, sir. 7 Q What would you in that time period personally be down here 8 doing as a special agent who's not a supervisor? 9 A Like I said, one of the collateral duties, I was a technical 10 agent, so I would come down and help out with the technical 11 equipment for various cases. 12 Q 13 on an informant to go to a meeting or those sorts of things like 14 we've all seen on TV. 15 A That's right. 16 Q That's what you're talking about? 17 A Yes, sir. 18 Q And you -- that was a collateral duty, as you call it? 19 A Yes, sir. 20 Q Who were the agents back then that were working here, the 21 line agents? 22 A 23 Munoz was here. 24 crew. 25 stayed; some of them went. That being if somebody -- you need to put a recording device Oh, gosh. I don't even remember all their names. Carmelito There were -- there were -- it was a different There were different ones than -- well, some of them It was -- it was a turnover. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 187 of 245187 1 Q And do you know why there was turnover? 2 A I don't -- I don't know why there was a turnover. 3 Q From your observation, did you have a professional guess? 4 MR. COONEY: 5 THE COURT: I mean -- Objection. Okay. Let's don't ask him to guess, even if 6 it's a professional one. 7 BY MR. EASTEPP 8 Q 9 something called Operation Lone Star. There came a point in time where you -- where there was What is Operation Lone 10 Star? 11 A 12 email that I read, it was where agents could come in from 13 different parts of the country to work border cases; have an 14 experience at working border cases. 15 Q And about what time period do you recall that? 16 A Maybe '08 into '09. 17 either '08 into '09 or '09 into '010. 18 Q 19 Operation Lone Star and work down here? 20 A Three different occasions. 21 Q And about how long each did you -- were the terms when you 22 came down? 23 A 24 last one. 25 Q It was -- it was an operation where -- according to the I think that's about right. It was And how many times did you come down from Houston for Three weeks for the first two, and then two weeks for the How would you get cases when you came down here? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 188 of 245188 1 A I would go into Mr. Pedraza's office, and he would have some 2 on a table in there. 3 those cases. 4 Q 5 about. 6 A 7 would go through to figure out in that three week period what 8 could I successfully close or what could I at least move along 9 forward. And so I would go in there and go through Give us an idea of the mound of paperwork we're talking Oh, stacks. Stacks of papers, stacks of case files. But the majority of it was what could I close. So I What 10 could I do to alleviate this mountain of files. 11 Q 12 guy and having a case come to fruition? 13 A 14 opened. 15 Q That was where I was headed. 16 A Okay. 17 Q And their being opened, did you know then or do you know now 18 why they're all being opened? 19 A Well, I don't know, but I know what I was told. 20 Q Okay. And why would closing it be important versus going after bad Well, in my opinion, a lot of those shouldn't have been And what is that? 21 MR. COONEY: Objection. 22 THE COURT: It's hearsay. 23 BY MR. EASTEPP 24 Q 25 going into what -- Sustained. Who did you have conversations about this with? Without Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 189 of 245189 1 A Mr. Pedraza. 2 Q And once you became the supervisor, did you start observing 3 the kind of cases that were constantly being opened by your 4 headquarters? 5 A 6 to open those cases. 7 Q When did that change? 8 A 2012. 9 Q So after Mr. Pedraza went out on leave and was no longer -- 10 A Yes. 11 2012 we received new management and that changed. 12 Q 13 Security since you've been there since '04, almost the beginning 14 of the agency, right? 15 A Yes, sir. 16 Q That there's been lots of procedural changes like that in 17 the years you've been there? 18 A Yes, sir. 19 Q It's an agency that has growing pains, for lack of a better 20 term; is that correct? 21 A Things change, yes, sir. 22 Q All right. 23 would take it? 24 A Yes, sir. 25 Q Are you familiar with -- if I use the term JIC, J-I-C? After I became supervisor, there -- we have the discretion I can't remember exactly when, but I think sometime in Is it part of -- in the short history of the Homeland And you've seen a lot from '04 until today I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 190 of 245190 1 A Yes, sir. 2 Q What is that? 3 A That's the Joint Intake Center. 4 Q And what is the Joint Intake Center? 5 A It's the -- it's a repository for all the complaints that 6 come in from different components: 7 CBP, from TSA, from wherever. 8 Q Literally like a hotline, right? 9 A That's correct. 10 Q Where if there's, for example, a Customs and Border Patrol 11 employee in Brownsville thinks he's observed a co-employee 12 committing a wrong, they can call the JIC number and go, "I just 13 think I saw my colleague" -- 14 A They're required to. 15 Q Required to? 16 A Yes, sir. 17 Q Which would be true about OIG agents too are required to 18 report? 19 A That's correct. 20 Q So when these things go to -- 21 A Well, we don't report to the JIC. 22 report to the JIC. 23 Q 24 they see? 25 A I didn't mean that. Got it. From Border Patrol, from They go into this JIC. OIG agents wouldn't But they're supposed to report what Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 191 of 245191 1 Q Once the JIC gets these reports, if it's a report, say, in 2 the McAllen field office's area, what happens back then? 3 A 4 When are you talking about? 5 Q Before the change you mentioned in 2012. 6 A Because '12 is different than '13 that's different than now. 7 Q Before the change you mentioned in 2012. 8 A I don't -- I don't know because it was -- it was different. 9 Q But when you as a -- either when you were down here working Back then? Well, see, I wasn't -- like back then when? 10 as a special agent or even after the time you were kind of the, 11 for lack of a better term, temporary supervisor, if you opened 12 most of those case files, the first paragraph was largely going 13 to be a JIC statement, correct? 14 A That's right. 15 Q Which meant they've taken the report, they've generated it, 16 and it's come back down here and a file is opened in McAllen. 17 Fair statement? 18 A Yes, sir. 19 Q That's where I was headed with that. In the business of prosecution and being a federal agent, 20 21 you ever heard the term dog cases? 22 A I have. 23 Q What generally does dog cases mean? 24 A It's a case that shouldn't have been opened. 25 Q When you were down here going through those stacks in Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 192 of 245192 1 Mr. Pedraza's office, dog cases in there? 2 A Yes, sir. 3 Q Is that the ones you're talking about you worked hard to 4 close? 5 A Yes, sir. 6 Q Cases that should never have been opened? 7 A Well, I would work to bring them to a logical conclusion. 8 Q Right. 9 A But more likely than not, they were not going anywhere based 10 on the complaint or the lack of information. 11 Q 12 anonymous person committing an anonymous crime. 13 A That's right. 14 Q You can be the most skilled investigator in the world, but 15 it's tough to deal with that, correct? 16 A That's right. 17 Q When you were down here, did you start meeting the agents 18 before -- and now I'm referring to before you were sent by 19 Mr. Beauchamp in October, November of 2011. 20 with the other agents when you were down here? 21 I mean the line agents. 22 A Are you talking about during Lone Star? 23 Q Lone Star, for example. 24 A I had some contact with them. 25 for lunch. Right. Lack of information being an anonymous tip about an Were you liaisoning Not Mr. Pedraza. Not -- I mean, we would meet I was cordial to them, but I really just worked. I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 193 of 245193 1 came down and I would get the cases and I would -- I'd go. 2 Q 3 or how good agents they were or great or not? 4 A 5 know who is the hard charger, who's the -- you know, who's not a 6 hard charger. 7 Q 8 there any hard chargers that you met in that time period? So you had no opinion then, I take it, about their abilities Well, you form opinions of other co-workers. I mean, you figure these things out. Of the names that have already been mentioned in here, were MR. COONEY: 9 I mean, you Objection, relevance. 10 THE COURT: Overruled. 11 THE WITNESS: There were. 12 BY MR. EASTEPP: 13 Q Who? 14 A Wayne Ball was one of them. 15 Q What made him a hard charger in your eyes? 16 A Energetic. 17 task or he was working with you on something and it got done. 18 Q Did you work any cases with him? 19 A I don't think so. 20 around each other. 21 He may have witnessed one of my interviews, but I don't -- I 22 don't particularly recall at the time. 23 paper around. 24 you would grab and say: 25 doing this interview. He didn't have a large caseload. You gave him a I think we discussed cases, and we were I may have sat in on an interview with him. You're moving a lot of You're -- there's a lot of different people that Hey, can you come be my witness? I'm Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 194 of 245194 1 Q Do you remember doing paperwork in common with him on any of 2 those instances where you might have helped each other out on a 3 interview? 4 A No. 5 Q Okay. 6 A I don't. 7 Q Any other hard chargers? 8 A J.R. Flores is a hard charger. 9 efficient at his job. Very confident, very You're talking about then or now? 10 Because now I'm going to sing praises about all my people down 11 there because they're all hard chargers. 12 Q 13 able -- back then were you picking up any files where you had 14 concerns as a -- just a line agent yourself at the time that the 15 paperwork was not filled out in accordance with the policy of 16 the agency? 17 A No, sir. 18 Q When you open up a file -- for example, this Operation Lone 19 Star, agents would fly in from all over the country, correct? 20 A That's right. 21 Q So you just happened to be fairly close by in Houston, 22 Texas, to come down here. 23 A That's right. 24 Q I mean, for example, could somebody from Seattle have flown 25 in and worked on that case? I was talking about previously obviously. But were you Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 195 of 245195 1 A Yes, sir. 2 Q Would they have been here for the limited times like you? 3 A For the three week period, yes, sir. 4 Q Well, would that mean if a case is not closed out when 5 they're there, that somebody new is going to have to pick it up 6 and then carry that to fruition, be that closing it or getting 7 it to a prosecutor? 8 A 9 we did transition those investigations to the incoming person. I think it was designed so that we overlapped a week so that 10 Q 11 that's hot or ongoing could keep going. 12 with the guy behind you and then you overlap with the guy in 13 front of you and then that guy. 14 A 15 you were -- which didn't happen, but if you were to develop a -- 16 an investigation that was really high quality, you wanted to do 17 some undercover, you wanted to do some -- start some prolonged 18 relationship with that case, we would have transferred that off 19 to -- we would have went to Mr. Pedraza, and he would have given 20 that to a local agent with the contacts to go ahead and run that 21 because they're long term. 22 But that overlap could then -- if it's an investigation I mean, you overlap Well, if you develop -- during that Operation Lone Star, if So basically if you had worked it and developed a lot of 23 good probable cause, then that would go. And one of them I did 24 do that, and we did end up handing it off to one of the local 25 guys. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 196 of 245196 1 Q And all good agents want to have good cases to work on, 2 right? 3 A Yes, sir. 4 Q And so you're always kind of hopeful that something is going 5 to turn up and you get that great piece of evidence and you move 6 on with the case, correct? 7 A Yes, sir. 8 Q Was Mr. Pedraza helpful in that way and supportive in moving 9 cases along when he was the supervisor and you still were just 10 the line agent coming down here? 11 A 12 wasn't a -- I didn't really go into his office. 13 experienced agent. 14 although I would talk to him about what I was doing, he knew 15 where I was and what I was working on, we didn't really have a 16 lot of guidance other than -- together other than like that 17 case. 18 him, and then he reassigned it to somebody else. 19 Q 20 Warren already the ASAC? 21 A I believe so. 22 Q So in the grand scheme of how things worked, that's not 23 unusual that a line agent would not have day-to-day direct 24 contact with the SAC about cases, because the SAC has got 25 management responsibilities, correct? He and I had a different relationship when I came down. It I was a more A lot of them down here weren't. So If it developed into something, you know, I would tell Was there already an ASAC back then? Meaning was Jody Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 197 of 245197 1 A That's right. MR. COONEY: 2 3 time. Simply ask one question at a That last one was a compound question. THE COURT: 4 Objection. That's all. I think the agent understands. 5 BY MR. EASTEPP 6 Q 7 structured, it's going to be the day-to-day hey, here's how you 8 need to do this case. 9 telephone record, whatever the piece of evidence might be, And it's really going to be the ASAC -- the way it was Go interview this person, maybe get this 10 correct? 11 A Theoretically, yes. 12 Q Right. 13 relationship with Mr. Pedraza in that time period because he's 14 the SAC, that's not unusual, is where I'm headed with that. 15 A It wasn't unusual for me. 16 Q Was he otherwise in just the interpersonal kind to you? 17 you, you know, have nice words if you saw each other, those 18 sorts of issues? 19 A Absolutely. 20 Q Now, let's get to this time period where you're sent down 21 here. 22 coming down here to do. 23 A 24 had assumed that it was because Jody Warren had retired and that 25 now there's a -- a gap. So the fact that you had just kind of a passing Did I take it you had very little knowledge of what you were Is that a fair statement? Like I said, I was told to come down here and help out. I And I was going to come down and help Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 198 of 245198 1 these agents with their cases. 2 Q 3 too in that you're showing you can be a supervisor; so the next 4 time there's a supervisory position, put you in good stead. 5 A Great experience. 6 Q Right. 7 your family and children, all that sort of stuff, it was -- you 8 saw it as a potential good career move for you. 9 A Potential, yes, sir. 10 Q When you got down here, how early did you -- or was there a 11 point once you got down here -- I'm not talking about the 12 Vargas, Castillo and Gomez. 13 did you start seeing that there were issues with paperwork that 14 maybe dates were wrong or signed wrong or any of that? 15 see anything like that? 16 A When I did that first file review. 17 Q And what did you see? 18 A The case file review sheets. 19 Q But like on MOAs, did you ever see anything where there were 20 dates that seemed something didn't match up to you or policies 21 weren't being followed or any of that? 22 A No, sir. 23 Q All the agents seem to know when they needed to sign things 24 and what date they needed to put on things and all that? 25 A I take it it probably would have helped further your career So despite the fact you're having to be away from Not talking about them. How early Did you Well, there were -- there were issues with timeliness. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 199 of 245199 1 There were -- you know, those MOAs were supposed to be returned 2 within five days. 3 So there were -- I'd have to think about it, but there were some 4 specific instances like that where, you know, there were some 5 policies, according to the handbook, that weren't being 6 followed, but -- 7 Q 8 detail of, hey, tell me what your thoughts are of when you 9 should date an MOA and sign your name? Agents were complaining that they weren't. Were you having discussions with the agents in that kind of Did you have those 10 discussions? 11 A 12 to figure out the universe at that point and just get the lay of 13 the land of what was going on. 14 Q 15 with you? 16 A Yes. 17 Q Was it your impression he was neutered, for lack of a better 18 term? 19 A Not at that time. 20 Q What was he doing? 21 A Well, he was in his office like he was every time I had been 22 down there. 23 Q 24 already talked about? 25 A Not at that time. Not when I first came down. I was trying And was Mr. Pedraza in that time period being cooperative That he was just really sitting in his office? Not when I first showed up. And was the same big flow of paperwork going on that we've I think -- I don't know, because I don't know what he was Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 200 of 245200 1 getting at that point. That was part of that discussion in the 2 beginning, was that I needed to see the MOAs, so I need that 3 paperwork to come to me so that I can see what's going on with 4 the cases. 5 with Mr. Beauchamp, that did happen. 6 coming to me so I could track the progress of these cases. 7 again, trying to figure out what's going on. 8 Q 9 stepping into Mr. Warren's shoes somewhat because he's now That was a discussion that we had had. And then So finally the MOAs were Like And was it your understanding that -- as you've said, you're 10 retired at this point in time; that that was the duty he was 11 performing? 12 A Well, that's what I assumed, but that's not what I was told. 13 Q What were you told? 14 A I was told that that was where a lot of the timeliness 15 issues were. 16 Q With Mr. Warren? 17 A That's correct. 18 Q Yeah. 19 timely. 20 again, it's the line agents are going to be sending you the 21 MOAs. 22 correct? 23 A That's right. 24 Q Like Mr. Warren had been, correct? 25 A That's correct. Maybe he was slow about it, but that was his duty. That was my question. It was all about him not being And so that's -- you're stepping into that role. So And you're below Mr. Pedraza in this supervisory line, Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 201 of 245201 1 Q Who were the agents when you got there at this time period? 2 A Let's see. 3 Wayne Ball, Camillo Garcia, J.R. Flores, Camillo Garcia. 4 already say him? 5 Q Marco Rodriguez? 6 A Marco Rodriguez. 7 Q Was Marco Rodriguez one of the hard chargers? 8 A He was. 9 Q Veteran agent? 10 A Yes, sir. 11 Q Meaning like Mr. Flores had been at other agencies before 12 he -- like you had before he got there? 13 A Yes, sir. 14 Q How did you get along with Special Agent Marco Rodriguez? 15 A Fantastic. 16 Q When -- when is the point in time you started doing these 17 case reviews? 18 A That first time was around November and then into December. 19 Q So let's talk about the case reviews, if we could, these 20 forms that Mr. Cooney put on the overhead. 21 internal supervisory mechanism of the agency, correct? 22 A They are an internal form, that's correct. 23 Q Meaning in a case that goes to fruition, Border Patrol agent 24 is assisting smuggling aliens, you catch him, you get a 25 confession, you package that up, and it goes to the U.S. Robert Vargas, Kristofor Healey, Della Saenz, Did I Those forms are an Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 202 of 245202 1 Attorney's office. 2 in that prosecuting package, do they? 3 A 4 discovery. 5 Q 6 call that a Jencks statement, a case review sheet, correct? Not the initial one, no, sir. MR. COONEY: 8 THE COURT: 10 They're included in But when you're on the stand, that's not a -- we would not 7 9 The supervisory case review sheets do not go Objection. All right. I'm going to let you answer it. If you know the answer to that, But otherwise if you don't, I don't want you guessing. THE WITNESS: 11 No, sir. Can you rephrase the question? 12 I want to make sure I answer it correctly. 13 BY MR. EASTEPP 14 Q If I rephrase it, it will be a different question, but -THE COURT: 15 Maybe that's your best option. 16 BY MR. EASTEPP 17 Q 18 correct, as to the agent testifying on the stand, right? 19 A 20 case review sheet. 21 Q 22 its own files. 23 A Well, yes and no. 24 Q What's the no? 25 A The no is if you have a case that during discovery -- that Case review sheets are not the same thing as an MOA, They're different documents, but there is a value to the Which is mostly an internal value for the agency to review Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 203 of 245203 1 document shows the forward progression of that case, and it also 2 shows the investigative steps that were taken. 3 period of time where there's no activity, then that's basically 4 a document of that inactivity or that lack of forward progress. 5 Or if it goes for two years where there's no activity, then that 6 could open you up as an agent today on the stand as why did you 7 let that sit for two years. 8 Q 9 investigation. There are all kind of reasons there can be gaps in investigations. 11 careers, correct? 12 A You and I both have seen that in our Yes, sir. THE COURT: 13 Mr. Eastepp, when you get to a stopping point. 15 MR. EASTEPP: 16 THE COURT: 17 18 19 20 21 22 23 And it's documented. Still cases are going to come down to what's in the 10 14 So if there's a This is fine, Judge. Ladies and gentlemen, let's take about a ten minute stretch break. (Jury leaves courtroom) THE COURT: I'm not rushing you, Mr. Eastepp, but do you have any feeling about how far through your examination are you? MR. EASTEPP: I shouldn't have a whole lot longer, but I can't tell you that's five minutes either. THE COURT: No, that's all right. I'm not rushing you. 24 We just had been going for about two hours is why I let them 25 take a break. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 204 of 245204 1 All right. 2 (Recess taken from 4:18 to 4:34.) THE COURT: 3 4 Let's take about ten minutes, counsel. All right. Mr. Eastepp, are we ready to continue? 5 MR. EASTEPP: 6 THE COURT: 7 MARSHAL: 8 THE COURT: 9 I am, yes, sir. Martin, is the jury ready? Or Richard? Yes, sir. Bring them on in, Mike. (Jury enters courtroom). THE COURT: 10 All right. Ladies and gentlemen, be seated. Go ahead, Mr. Eastepp. 11 12 BY MR. EASTEPP 13 Q 14 sent to McAllen as the replacement for Mr. Warren because we've 15 been talking about October and November. 16 time period on that? 17 A 18 late October I think is the first time I came in. 19 November I know I started doing work that I could say I was 20 there, so -- 21 Q 22 and Houston offices and other Texas border offices and the 23 northwest border offices, correct? 24 A That's right. 25 Q And do you recall about the time period that happened? Let's try to put a better time frame on when you were first That's it. Late October. Can you put a better I've looked through my notes, and And early There had also been an agency reorganization of the McAllen Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 205 of 245205 1 A I think that was the summer before. 2 prior. 3 MR. EASTEPP: 4 THE COURT: Well, just a few months May I approach the witness, Your Honor? You may. 5 BY MR. EASTEPP 6 Q 7 your memory. 8 A Okay. 9 Q Does that refresh your memory as to a better time frame that 10 Just look at this without reading it aloud just to refresh the reorganization fell? MR. COONEY: 11 12 I apologize. But before the witness answers the question, could I just take a look at the -THE WITNESS: 13 According to those documents, it's 14 October. I remember another meeting with Kirk Beauchamp where 15 it was announced, but maybe that's where I'm getting my dates 16 from. 17 October. 18 BY MR. EASTEPP 19 Q 20 September. 21 A 22 there. 23 Q 24 Houston was not inspected; only McAllen. 25 A But according to that document, that memo was dated And you're aware the McAllen office had been inspected mid I learned that later. I didn't know that when I went down Because at that time, Houston and McAllen were separate, so That's right. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 206 of 245206 1 Q So -- and after the change, what did Mr. Pedraza's title 2 become? 3 A After the change in? 4 Q The realignment that -- part of the memo I just showed you. 5 A I'm not sure. 6 charge. 7 Q You never heard the term associate special agent in charge? 8 A I have. 9 Q And with Mr. Beauchamp being the special agent in charge? 10 A He was the regional special agent in charge as part of that 11 reorganization, I believe. 12 Q And Mr. Pedraza had "associate" tagged onto his? 13 A I think that's right, yes, sir. 14 Q All right. 15 you're coming down here -- 16 A That's correct. 17 Q -- is the point, right? I thought he was still special agent in I've heard that. But all that happened pretty close to the time The case reviews. 18 Now, Special Agent Green, it's obvious 19 you are a stickler and follower of the rules. Would that be a 20 fair statement? 21 A Yes, sir. 22 Q But even you, if you're in your -- in the office one morning 23 early and one of your agents comes in and y'all are having 24 coffee and you ask him about a case while you're having coffee 25 that's on your mind, are you going to call him into your office Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 207 of 245207 1 ten minutes later to sit down and do a formal case review on 2 that very same case? 3 A No, sir. 4 Q Right. 5 informally. 6 A 7 where you're supposed to do a quarterly file review, so that is 8 a time where you're supposed to carve out and do that according 9 to the handbook. I mean, it can be done at times a little more On a -- well, there's a -- there's a set period of time 10 Q Some of the agents did tell you that they recall meeting 11 with Gene and Jody, meaning Special Agent Pedraza and the SAC 12 and the ASAC. MR. COONEY: 13 14 Objection. Started with "Some of the agents told you." THE COURT: 15 Why don't you rephrase it. 16 BY MR. EASTEPP 17 Q Were you aware of any case reviews being done? 18 A I was. 19 Q And what were the circumstances case reviews were being 20 done? 21 A 22 placed in the files and then those files returned to the agent. 23 Q 24 informally to either Special Agent Warren or Special Agent 25 Pedraza? Where agents would bring in files, and there were notes Did any of the agents describe sitting and talking Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 208 of 245208 MR. COONEY: 1 2 Objection. "Did any of the agents describe." THE COURT: 3 I'm going to overrule that. He can answer 4 that. 5 BY MR. EASTEPP 6 Q Speaking informally like that with him? 7 A In -- I guess be more specific. 8 informal conversations, but was there -- do I recall a time 9 where they sat down with all their cases and informally There were a lot of 10 discussed them? No, sir, not all their cases. But I -- but 11 there were times where there were informal discussions with case 12 files. 13 Q 14 was filled out unknown to the agent, meaning because they've 15 talked in the coffee room or the copy room or wherever, but 16 somebody has filled out, spoke to the agent, you know, going to 17 issue an IG subpoena, that's not falsified, is it, if that's 18 what the conversation was about? 19 A That's right. 20 Q Just because they're not in the same room when the notes are 21 made? 22 A No, sir. 23 Q All right. 24 A As long as that activity was -- happened and was going to 25 happen and that was conveyed to the agent. So if an informal meeting occurred and a case review sheet Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 209 of 245209 1 Q All right. 2 A There was an agreement, then no, sir. 3 Q When you -- did you show any of the case review sheets that 4 had Gene Pedraza's initials on them to any of the agents or go 5 over it? 6 A 7 file, so they're sitting right there. 8 Q All right. 9 A I did. 10 Q All right. 11 whatever the shorthand is, you know, interview target, those 12 sorts of things? 13 A Yes, sir. 14 Q And went over that with the agents? 15 A Yes, sir. 16 Q Were there times that they said yeah, that's what we were 17 supposed to do or what we did or what we're going to do? 18 A No, sir. 19 Q There was never a time that you -- that -- 20 A The response I had when we sat down to do this is that I 21 would go through and look at it, and I'd say: 22 were we supposed to do the last time? 23 A lot of times I couldn't read what was written there. 24 would look at it and say -- it would say "continue 25 investigation" or something. In case review. I mean, it would have been part of the And did you go back over those things? Meaning, you know, liaison with the FBI or Okay. Well, what And I would look at it. Or I But the majority of the responses Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 210 of 245210 1 I got from everybody was: Dave, we've never done this. 2 Q They're talking about the formal thing. 3 A Right. 4 Q I'm talking about the words that are written down there. 5 it said an IG subpoena has been issued, well, you can look at a 6 file and see if that's true or not. 7 A 8 I'm seeing more broad statements of "continue investigation" or 9 "interview witnesses" or "interview subject and write ROI." If Well, I didn't see a lot of them that detailed is my answer. I 10 don't remember it being that specific as your example. 11 Q 12 the kind of the steps you're going to take to close one out, 13 correct? 14 A Sure. 15 Q So that's not an inaccurate thing, right? 16 A No. 17 the -- the supervisor and the agent and then that activity was 18 going to intentionally occur, then no, sir. 19 Q 20 some of those agents that were not hard chargers. 21 A That's correct. 22 Q Are you aware that there was great pressure to fill some of 23 the spots in McAllen? 24 A I just knew there was a constant turnover. 25 Q So there was a mix of talents, correct? But even the examples you just gave in a dog case, those are Like I said, as long as that was an agreed upon between And the flip side of this hard charger thing is there were Were you aware of that from Houston? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 211 of 245211 1 A That's fair. 2 Q So some needed far more day-to-day supervision in their 3 cases than a Wayne Ball or a Marco Rodriguez, correct? 4 A That's correct. 5 Q Down to fairly minute things that a guy like you would think 6 of this quick, have gone "get his personnel file" or something 7 simple, correct? 8 A Right. 9 Q Now, this time period after you've started doing case 10 reviews and you're noting your own, you know, reviews and then 11 the time period that they become missing, what -- give us the 12 window there. 13 A 14 when I did the file review in -- I guess ending in December. 15 And then the next file review was, like I said, late February, 16 early March. 17 there. 18 Q 19 generally. 20 that you see in a file and make that agent produce the notes 21 underlying it? 22 make him produce that document and verify every sentence in an 23 MOA? 24 A No, sir. 25 Q Nobody does that. Well, the last time I saw the case review sheets was in -- And that's when I discovered they weren't in And let me ask you another question just about a file review When you're doing a file review, do you take an MOA Or if it's a NCIC or criminal records check, You trust the agent drafting it that it's Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 212 of 245212 1 going to be accurate, correct? 2 A 3 reference something like an NCIC report, that NCIC report should 4 be attached to that. 5 If you interviewed somebody and you gave them a Garrity warning, 6 then that Garrity warning and that sworn statement need to be 7 attached to that. 8 Q 9 probably don't need to. I do. There should be some supporting documents. I was going to have you explain Garrity warning, but we Okay. 10 I'll also make sure if you read the MOA and it does So when you're doing the case review, really it's 11 about how to move the thing forward, get it closed, one or the 12 other. 13 A Absolutely. 14 Q It's not about the past? 15 A Well, bring it to a logical conclusion. 16 close it, but how do we remedy this. 17 Q 18 still in his position, correct? 19 A That's correct. 20 Q And you're talking to him pretty much day-to-day? 21 A Absolutely. 22 Q Getting along? 23 A Every morning. 24 Q Is he helpful? 25 A Like I said, we had a different relationship. Not necessarily And again, during this fall period of 2012, Mr. Pedraza is So it was Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 213 of 245213 1 always: Hey, Dave, whatever you need, we're here to help. 2 let me know what you need. 3 Q 4 or get out or stop or I'm the SAC. 5 anything? 6 A No, sir. 7 Q Tried to be as helpful as he could? 8 A Absolutely. 9 Q This issue now of the files that -- or the case review Just Was there ever a time he threw up a red flag and told you no You better listen or 10 sheets that are missing. I've never seen a compilation, meaning 11 that somebody wrote all this down. 12 tells us which files are missing and which ones were there? 13 A 14 course, turned those over. 15 no. 16 Q And why not? 17 A Because I was just looking for the ones that were there. 18 Q But once you realized that there's a huge number missing, it 19 wasn't relevant to note that? 20 A 21 out of it. 22 Q And you did? 23 A And that's what I did. 24 Q Have you seen a compilation in preparation for your 25 testimony? Is there a compilation that Well, the ones that were there, we kept those and, of But the ones we went through, the -- I mean, did I make a list? No, sir. I'm not the one conducting the investigation. I'm told stay Report things and move forward. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 214 of 245214 1 A I have not. 2 Q On this same subject of being cooperative and staying out of 3 it, explain to the jury about the cameras that are in the 4 McAllen field office and how they're -- the recording is made, 5 where that goes to. 6 A 7 camera. They have dome cameras, just small dome cameras in the 8 office. And they go by the front door, the back door, the 9 interview room, the front lobby, down the hallways, the firearms Sure. Explain that. There's a -- not every area in the office has a 10 room, evidence room, just the general areas. Not in the 11 offices, not in the conference room. 12 video only, and they're recorded to a DVR that is in our 13 computer server room in the office. 14 server is, there's a DVR there. 15 Q The camera that's in the file room, is it motion activated? 16 A It is. 17 Q So when -- however somebody opens that door and steps in, 18 it's going to -- 19 A 20 that, yes, it was motion activated. 21 Q 22 recording? 23 A That's right. 24 Q And as you've described it, almost every file was missing a 25 case review sheet? And they're -- they're So down the hall where the I didn't know that until this investigation, but I do know So had anybody stepped in there, there was going to be a Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 215 of 245215 1 A Yes, sir. 2 Q Which meant somebody would have had to go into that room and 3 either rifled through those files with the camera there or take 4 those files somewhere else and rifle through them, correct? 5 A That's right. 6 Q So that would have all been captured on camera? 7 A That's right. 8 Q If somebody did that. 9 scanned a card or used a key. Again, regardless of whether they 10 A That's correct. 11 Q Do you know how many people knew the key thing worked versus 12 the card scan? 13 A 14 that room? 15 Q Because it sounds like you accidentally found that out. 16 A I did accidentally find that out. 17 compliance of the office, I wanted to see who had access to 18 certain areas. 19 because everyone had a master key. 20 were -- for instance, the firearms and the evidence area, those 21 should just be accessed by the firearms instructor, the evidence 22 custodian and their backup or the supervisors. 23 have a need to know to go in the file room need to go in the 24 file room. 25 determined -- I found out that they weren't. I guess -- do I know how many people knew they could access I found out that in the And then I determined that it didn't matter So there were no areas that Only people that So those areas should be limited, and I Everybody had a Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 216 of 245216 1 master key. 2 Q How did you find that out? Did you just try it? 3 A No, when I was -- no, sir. When we were scheduling the -- 4 just kind of an office review, kind of seeing again how do we 5 get everything in compliance, what's going on, who has access to 6 what, I do not recall which agent told me, but one of them told 7 me: 8 We can -- we can all get in. 9 Q Well, Dave, we all have a key. We all have master keys. But again, the failsafe is going to be in those crucial 10 areas, the file room, the evidence room where the firearms are 11 kept, cameras. 12 A That's right. 13 Q It's previously been admitted as Defendant's Exhibit 9 is 14 the -- where the card keys registered who went in. 15 key has an individual -- 16 A That's correct. 17 Q Okay. Each card If we look on page 15 first, Defendant's 9. This has previously been admitted as the card key record. 18 19 Are you aware of the time frame in the indictment, the crucial 20 time period we're talking about? 21 A Not to the point that I'm going to testify to that. 22 Q Okay. 23 administrative leave. 24 A Yes, sir. 25 Q Ron Moore from Houston came down. You were present when Mr. Pedraza was placed on Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 217 of 245217 1 A Yes, sir. 2 Q The two of you went in. 3 the agency, the Washington level agency. 4 A Yes, sir. 5 Q And that was the morning of February 9th, correct? 6 A That's correct. 7 Q Start of the day. 8 A That's right. 9 Q Meaning unless he had snuck in there at midnight on the 9th, Mr. Pedraza was given a letter from 10 the day before is really the last working day he was in there 11 all day and had full access. 12 A That's right. 13 Q We -- starting on page 15. 14 MR. COONEY: 15 THE COURT: 16 MR. COONEY: 17 20 You may. Thank you. (At the bench) MR. COONEY: 18 19 May we approach, Your Honor? I have an objection, a first objection and then a second objection. The first objection is I think we're about to use Defense 21 Exhibit No. 9, which we have stipulated to the preadmission of. 22 But one thing I'm not clear on is my understanding is when we 23 stipulate is that these documents are coming in in the defense 24 case. 25 we're stipulating to preadmission, but it's on the assumption We have not reached a defense case yet, meaning that Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 218 of 245218 1 that it's because had we not stipulated, essentially the defense 2 would be able to call a witness to put this in. 3 not calling an authenticating witness for records like this in 4 our case. THE COURT: 5 Well, but here's the deal. I mean, we're I'm not going to 6 make Mr. Eastepp call an authenticating witness and then put 7 this witness back on the stand. MR. EASTEPP: 8 9 It's a computer record anyway. I'd have to call the custodian of records of DHS-OIG. MR. COONEY: 10 11 That's crazy. And we're not -- it's not that we're not cooperating. 12 THE COURT: 13 MR. COONEY: I'm going to let him use it. Okay. But then second objection is why, 14 though, can this record be shown to this particular witness? 15 understand it's in evidence, but what is he going to testify 16 about computer records? THE COURT: 17 Well, if he doesn't know anything about it, 18 all he has to say is I don't know anything about it and we're 19 done. MR. COONEY: 20 21 I Okay. (Open court) 22 BY MR. EASTEPP 23 Q 24 these things were missing, you immediately questioned two 25 people. You stated, Special Agent Green, that after you saw that Carlos Mandes, who is he? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 219 of 245219 1 A He was an intern at the time. 2 Q And he had file room access? 3 A Yes. 4 Q And setting the master key thing aside, we now know that, 5 you know, the special agents didn't have the card that would get 6 them in that door, did they? 7 A No, sir. 8 Q But generally the agents didn't, but a student intern did? 9 A Well, it was his job to maintain those jobs and enter. One or two may have; but no, sir. He 10 did filing, so that was part of his job, was to get in that 11 room. 12 Q 13 starting -- see January 19th through January 25th on this page? 14 A Yes, sir. 15 Q Do you see Ms. Hinojosa? 16 A Yes, sir. 17 Q And remind us what her job was? 18 A She was the administrative officer for the McAllen office. 19 Q And then the next page, page 16 again picks up at the 20 25th through February 1st. 21 A Yes, sir. 22 Q Same thing. 23 A Yes, sir. 24 Q And last as to her, this is February 1st and goes through, 25 as we can see -- she didn't go in on the 9th, but in between her If we -- again, going to page 15, if we'd look on Defense 9 Was she an authorized person? She was authorized to go in there. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 220 of 245220 1 going in in the 8th and the 10th, Mr. Pedraza is relieved of 2 duty. 3 A That's correct. 4 Q Do you remember the first time you went in with your card 5 key? 6 A I don't. 7 Q Go to page 25 first. 8 A Yes, sir. 9 Q Okay. You see your name? Do you see the first time you went in was on 10 February 9th? 11 A Yes, sir. 12 Q That's late in the day. 13 A Yes, sir. 14 Q Correct? 15 A Yes, sir. 16 Q Do you recall why you would have gone in on the 9th? 17 A Any reason. 18 Q But you would have been in charge basically all that day 19 because Mr. Pedraza would have been relieved that morning. 20 A 21 were -- I don't remember. 22 trying to figure it out, so I don't remember the details of 23 that. 24 Q 25 were trying to do some of the transition now that you're going Yes, sir. I mean, Ron Moore was still there, and I think we It was -- it was a bad day. We're By that I assume you assume Special Agent Moore and yourself Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 221 of 245221 1 to be fully in charge? 2 A I think so. 3 Q There's a gap in time. 4 of when you would go into the room? 5 A 6 get Cindy to pull files for me, and she would -- that was -- her 7 or Carlos Mandes, that was -- their job was to get in the file 8 room and do things for me. 9 Q Probably. That's fair to say. Is that consistent with your memory I didn't go in there all the time because I would If we go to the page before that page 24, you see 10 Mr. Pedraza's name? 11 A Yes, sir. 12 Q On October -- I'm sorry, on August 25th. 13 continues on the next page, you see the last date listed is 14 November the 10th of 2011? 15 A Yes, sir. 16 Q That's some, what, almost three months before he's -- and 17 you mentioned Carlos Mandes. 18 for him to go in there? 19 A Yes, sir. 20 Q If we go to page 31 of the exhibit. 21 is November 29th through January 20th. 22 page, particularly through late January, he was in there a lot. 23 A Yes, sir. 24 Q In February. 25 February 21st through -- again, there's a gap in time from the And as it It would be a very common occasion For example, this one Picking up on the next Going to the next page picking up Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 222 of 245222 1 February 3rd to the 10th when Mr. Pedraza would have been 2 relieved of duty, correct? 3 A That's correct. 4 Q But again, the cameras would have been on too during all 5 this time? 6 A They were, yes, sir. 7 Q They would have shown if -- all those files coming out of 8 there, right? 9 A Yes, sir. 10 Q Have you ever seen a video that shows that? 11 A I did, yes, sir. 12 Q And what did you see? 13 14 video. MR. COONEY: Objection. What video? I mean -- THE COURT: 15 16 BY MR. EASTEPP 17 Q Why don't you be a little more specific. What did you see? THE COURT: 18 Just have you ever seen a Wait, wait, wait. 19 BY MR. EASTEPP 20 Q 21 testified today? 22 A 23 me -- Bob Krupa and Freddy Vela showed me video footage. 24 don't know if they were these exact sheets, but something 25 similar with the card swipes. What video, what date and time? Did you see it before you I did during one of my interviews with the FBI. They showed And I And we had a conversation, and we Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 223 of 245223 1 saw on their computer on the video Cindy Hinojosa carrying files 2 out of that room to the conference room. 3 the whole video or they didn't show me the whole video, but they 4 did show me that portion of it. 5 Q 6 in there all the time, correct? 7 A That's right. 8 Q And you yourself have asked her to go in and do that exact 9 thing. They wouldn't show me And that's something Cindy did, as we've seen at least going 10 A During that time period, and I -- during the time -- I don't 11 remember the date. 12 video, it was at a time when I was in Houston and not down 13 there. 14 been relieved of those duties. But during the time that I was shown the And it was also a time where Mr. Pedraza had already So I was doing the MOAs. 15 I was doing the file reviews. 16 They're -- so I don't know. I never was shown the entire video 17 or given a full explanation. 18 during an interview at the FBI office in Houston. 19 Q 20 the things?" 21 A I did. 22 Q And she said no. 23 A She said no. 24 Q And do you think that she aided and abetted Mr. Pedraza in 25 taking those things? I was just shown that portion And you confronted Cindy Hinojosa and said, "Did you take Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 224 of 245224 1 MR. COONEY: 2 THE COURT: Objection. Sustained. 3 BY MR. EASTEPP 4 Q She's still employed with the agency, correct? 5 A That's correct. 6 Q And she's going to testify, correct? 7 A That's correct. 8 MR. COONEY: 9 THE COURT: Objection. Sustained. 10 BY MR. EASTEPP 11 Q 12 Agent Gomez when you went over it with him, when given the 13 opportunity for him to come clean, he writes a memo where he 14 wouldn't come clean. 15 A 16 him at the time and I'll say it today, he didn't own it. 17 Q 18 he filled out, do you remember? 19 A Which document are you -- 20 Q That Mr. Gomez was writing that you said he didn't own it 21 in. 22 A 23 Word document. 24 statement of fact. 25 something to memorialize. And Mr. Gomez with the situation you talked about or Special Did I understand that correctly? He skirted the issue, that's right. Meaning that he -- okay. He didn't, as I told And what kind of document was that It was a -- I don't remember if it was an MOA or just on a I think it was just on a Word document. Just a Just, like I had told him at the time, You may have to turn it in. It Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 225 of 245225 1 wouldn't be just good notes for the phonecall. 2 just memorialize because months from now you may not remember 3 these details. 4 Q 5 estimate of time period when you think those case review sheets 6 went missing? 7 A 8 prior to -- well, I say I think that it had to have been between 9 December and February 9th or my file review, late February. And lastly, do you remember -- have you ever given an I put a lot of thought into it, and it had to have been 10 it had to have been. 11 Q 12 investigation giving a later date than that? 13 A I may have. I don't know. MR. EASTEPP: 15 THE COURT: 16 MR. COONEY: THE COURT: 19 MR. COONEY: 20 THE COURT: 21 (At the bench) 23 24 25 I put a -- May I approach the witness, Your Honor? You may. Objection. May I see what he's confronting the witness with first or be told? 18 22 So You don't recall on an earlier occasion during this 14 17 Something to MR. COONEY: Okay. Objection. May we approach? Yes. I object to approaching the witness with the FBI 302. THE COURT: I'm going to overrule -- overrule that. mean, all I'm going to let him use it for is to see if it I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 226 of 245226 1 refreshes his memory. MR. COONEY: 2 If it does, fine; if it doesn't. I do object to the foundation insofar as he 3 hasn't even been asked if there's anything that would refresh 4 his recollection about it. 5 THE COURT: 6 Mr. Eastepp. 7 is. Why don't you ask that first, He's going to say: 8 MR. COONEY: 9 THE COURT: 10 All right. Maybe. It depends on what it But he should be told. Okay. (Open court) 11 BY MR. EASTEPP 12 Q 13 Would it help if there was a document that could refresh your 14 memory? 15 A Absolutely. 16 Q Read it to yourself, please. 17 A Yes, sir. 18 Q After reading that document, is your memory refreshed as to 19 a better time period? 20 A Well, in there I said -- 21 Q That you've given? You stated that you couldn't really recall the time frame. 22 THE COURT: 23 THE WITNESS: 24 BY MR. EASTEPP 25 Q Don't quote the document. Yes, sir. Is your memory refreshed that there may have been -- at an Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 227 of 245227 1 earlier time you had a better memory of what the time frame was? 2 A 3 February, March. 4 Q 5 left. 6 A At that time I believed November to those file reviews, March. Which would have -- March is obviously after Mr. Pedraza That's correct. MR. EASTEPP: 7 One moment, Your Honor. Pass the witness, Your Honor. 8 THE COURT: 9 MR. COONEY: 10 Redirect, Mr. Cooney? Yes, Your Honor. REDIRECT EXAMINATION 11 12 BY MR. COONEY 13 Q 14 on, the file review sheets, so that we can put bookends on these 15 dates based on Mr. Eastepp's questions. Let's go first to that -- to that last issue that you ended The time frame that you put it on, put it between, you 16 17 testified just now between November 2011 and sometime in 18 February or March 2012; is that right? 19 A That's correct. 20 Q And is that based on when you first did file reviews and 21 then when you second did file reviews? 22 A That's right. 23 Q And so it could have happened anytime in that time span 24 according to your review of the case files; is that right? 25 A That's right. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 228 of 245228 1 Q Now, just so we're clear, Mr. Eastepp asked you a bunch of 2 questions about what information agents had provided to you 3 about informal case reviews, case reviews and things like that. 4 Do you remember those questions? 5 A I do. 6 Q When you did your first set of case reviews in November of 7 2012 -- excuse me, November of 2011 with the agents, what was 8 the message being relayed to you about whether they had ever 9 done file reviews in the past with the defendant? 10 A They had never done formal file reviews in the manner that 11 we were doing them. 12 Q 13 Exhibit 9, when we looked at those sheets. 14 additional questions by Mr. Eastepp about, again, the informal 15 reviews and things like that. 16 that I put up there, Government's Exhibit No. 9, the file review 17 sheets, are those intended to memorialize file review meetings 18 or simply reviews of reading the file? 19 A Review meetings. 20 Q Meetings with special agents? 21 A That's my understanding. 22 Q And is that how you conduct file reviews? 23 A That is according to the Special Agent Handbook, yes, sir. 24 Q And so we're clear about the significance of the file review 25 sheets, you testified about Edwin Castillo and Rolando Gomez and The file reviews that I put up earlier, Government's You were asked some So we're clear, are those sheets That's correct. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 229 of 245229 1 their Giglio issues with respect to the Lieutenant Leal case; is 2 that right? 3 MR. EASTEPP: 4 THE COURT: 5 All right. Judge, this is leading. Sustained. Don't lead the witness. Let me interrupt you here, though, Mr. Cooney. 6 This is the second time this has come up since this witness has 7 been on the stand. 8 9 Agent, you understand that Giglio is the name of a Supreme Court case. 10 THE WITNESS: 11 THE COURT: 12 THE WITNESS: 13 THE COURT: (Nod indicated.) You need to answer out loud. Yes, sir. Okay. So when you say -- and it's a case 14 that basically says if there is a credibility issue or problem 15 with a certain witness, that problem needs to be disclosed to 16 the other side of the case. 17 THE WITNESS: 18 THE COURT: Yes, Your Honor. All right. And so when you're saying to the 19 jury that the person has a Giglio problem, you're saying they 20 may have a credibility problem, and we may have to tell the 21 other side about that credibility problem. 22 THE WITNESS: 23 THE COURT: Yes, Your Honor. All right. I just didn't want the jury to 24 think that it was like a sprained ankle or something, having a 25 Giglio problem. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 230 of 245230 1 BY MR. COONEY 2 Q 3 your special agents falsified a file review sheet, would they 4 have a credibility problem? And with respect to those credibility problems, if one of 5 MR. EASTEPP: 6 THE COURT: 7 BY MR. COONEY 8 Q 9 concern? Judge, this is leading again. Don't lead him. Rephrase it. Would, in your view, that rise to a credibility or Giglio 10 A A credibility concern, yes, sir. 11 Q Is that something you would disclose to the prosecuting 12 authorities about your special agent? 13 A Independent of this investigation? 14 Q Yes, independent of this. 15 sheet as opposed to an MOA. 16 A I would report it to my superior. 17 Q Now, with respect to your conduct of the file reviews. 18 you conducted a file review, did you have the actual files that 19 you were reviewing placed in the conference room? 20 A I did. 21 Q Did you do that in November of 2012? 22 A Yes. 23 Q Excuse me. 24 A Yes, sir. 25 Q Did you do that again for the second set of file reviews in The falsifying of a file review When November of 2011 for that file review? Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 231 of 245231 1 February or March of 2012? 2 A I had them placed in that conference room, yes, sir. 3 Q And when you say "had them placed there," how did you have 4 them placed there? 5 A 6 both of them put those in there for my review. 7 Q Did you go get them yourself? 8 A I don't recall that time. 9 get another file or a couple of files or -- Either Cindy Hinojosa or Carlos Mandes or a combination of It's possible I went in there to 10 Q But from most of the files, who did you have place them in 11 the conference room? 12 A Cindy Hinojosa. 13 Q So that we're clear here, the video that you testified 14 about, do you know what the date of the video you viewed was? 15 A No, sir, I do not. 16 Q And by date of the video, I mean the date that the footage 17 was taken. 18 A I do not. 19 Q As you sit here today, do you know whether that footage was 20 taken while the defendant was the head of the McAllen field 21 office? MR. EASTEPP: 22 Judge, I'm going to object. He just 23 answered he doesn't know the dates, so we've already established 24 that. 25 THE COURT: I'm going to let him answer that. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 232 of 245232 1 BY MR. COONEY 2 Q 3 from the time that the defendant was heading the McAllen field 4 office, or was that footage from the time that you were heading 5 the McAllen field office? 6 A I'm almost certain -THE COURT: 7 8 As you sit here today, do you know whether that footage was Wait, wait, wait. need to say you don't know. THE WITNESS: 9 If you don't know, you Don't guess. Then I don't know. 10 BY MR. COONEY 11 Q 12 recall being asked those questions? 13 A Yes, sir. 14 Q What does JIC stand for again? 15 A Joint Intake Center. 16 Q When DHS-OIG receives allegations through the JIC, through 17 the Joint Intake Center, are they investigated? 18 A Yes, sir. 19 Q Are they investigated as criminal allegations? 20 A Not always, no, sir. 21 Q Are they sometimes investigated as criminal allegations? 22 A Yes, sir. 23 Q And have there been times in your experience where an 24 allegation made through the JIC has led to a successful 25 investigation, meaning one that leads to a criminal charge? You were asked some questions about the JIC report. Do you Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 233 of 245233 1 A Yes, sir. 2 Q You also -- do you recall being asked questions about dog 3 cases by Mr. Eastepp? 4 A Yes, sir. 5 Q Again, for the benefit -- for the jury's benefit, what is a 6 dog case? 7 A 8 an unknown -- you can't find the complaint. 9 sure where it happened. What do you mean by that? A dog case is an unknown -- it's a very poor allegation of You're really not In most cases you're really not even 10 sure what the violation of the criminal statute is. 11 Q How do you go about closing a case like that? 12 A You take what information is there, and you investigate that 13 information as far as you can. 14 Q 15 case by placing false information in an investigative report? MR. EASTEPP: 16 17 In your experience, have you ever closed a dog case or a bad Judge, I'm going to object that that's argument. 18 THE COURT: Overruled. 19 THE WITNESS: Absolutely not. 20 BY MR. COONEY 21 Q 22 a dog case file than a good case file? Would it be any more acceptable to put false information in 23 MR. EASTEPP: 24 THE COURT: 25 THE WITNESS: Judge, I'm going to object to leading. Overruled. It's never acceptable to put false Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 234 of 245234 1 information into any official case file. 2 BY MR. COONEY 3 Q 4 previously admitted into evidence. I want to show Government's Exhibit 1C which has been Bates stamp 32400. 5 Agent Green, I know that Government's Exhibit 1C is small up 6 there on the screen, but are you able to just see generally what 7 that document is? 8 A Yes, sir. 9 Q What is that document? 10 A It's an MOA, memorandum of activity. 11 Q Now, could we go ahead and just zoom in a little bit, 12 Mr. Starnes, to the text in the body of the MOA? 13 the text. Great. All right. 14 You can do all Thank you. Can you just describe not the substance 15 underlined, but there's this first paragraph here which begins 16 "March 3, 2010." 17 opening paragraph like that one? 18 A Yes, sir. 19 Q What does that opening paragraph report? 20 A It tells the date of the activity, what the activity was 21 related to, what allegation. 22 Q And this second date, October 7, 2010, what is that? 23 A That says the date of the activity. 24 case, that's the date of the complaint, March 3rd in the first 25 paragraph. As a general matter, do most MOAs contain an In this particular October 7th is the date of the activity. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 235 of 245235 1 Q So let's just back up, and if you could explain that to the 2 jury then, the difference between the date of a complaint and 3 the date of an activity. 4 A 5 when we received the allegation through the JIC or when it was 6 initiated by our office. 7 Q 8 investigation is opened? 9 A Yes, sir. 10 Q All right. 11 October 7, 2010, what does that paragraph report? 12 A 13 occurred. 14 Q What is the purpose of an MOA like this? 15 A To document the activity related to a certain allegation. 16 Q Is it to document the activity that was taken on October 7, 17 2010? 18 A That's correct. 19 Q Now, if we could show the signature dates, please. That's right. The -- well, the date of the complaint is Is that essentially the date that the case or the Then the second paragraph that reports This says that on October 7th there was an activity that Simply what are the -- what are those signature blocks down 20 21 there? 22 A 23 signature, the reviewing official. 24 Q 25 this particular MOA before? It's the preparer of the report and then the supervisor's Just so we're clear, to your knowledge, have you ever seen Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 236 of 245236 1 A I couldn't tell you if I've been shown it in the past. 2 been shown so many. 3 Q 4 signature date reflect? 5 A 6 signed it, he would have dated next to it. 7 Q 8 MOA? 9 A I've Now, the signature date on the bottom, what does the The date of the signature. So when -- when Mr. Pedraza And do you recognize those two signatures on that particular I recognize Mr. Pedraza's signature. And I haven't seen 10 Edwin Castillo's signature enough to say yes, that's his 11 signature. 12 Q 13 whether you on your own noticed any irregularities about MOAs, 14 the questions from Mr. Eastepp? 15 A Yes. 16 Q All right. 17 right that you testified that just on their face, you didn't see 18 any irregularities in any MOAs; is that right? 19 A That's correct. 20 Q Just so we're clear, this particular MOA reports 21 surveillance having been done by an agent named Wayne Ball on 22 October 7th, 2010; is that right? 23 A That's right. 24 Q Simply by reading that, would you have any idea whether that 25 surveillance had ever been done? All right. Now, do you recall being asked questions about Just so that we're clear -- and did you -- am I Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 237 of 245237 1 A Well, it's a -- no. I mean, it's a quick turn around from 2 October 7th activity being done. 3 Q 4 the one that had done it, would you have any knowledge as to 5 whether it was done? 6 A No, sir. 7 Q In your work as a special agent, though, would you count on 8 the fact that it had been done? 9 A Yes, sir. 10 Q Why? 11 A Well, because he's an agent, and he says he did it. 12 his word. 13 Q All my question is, simply from reading it, if you're not I take You can go ahead and take Government's Exhibit 1C down. When you first came to the McAllen office in October or 14 15 November of 2011, were you able to make any observations about 16 the timeliness of the filing of MOAs? 17 A I was told things. 18 Q And do you recall being asked questions about that by 19 Mr. Eastepp? 20 A I do. 21 Q What is it that you were told about the timeliness of 22 actually preparing MOAs? 23 A That they were very slow in coming back. 24 Q Is there a policy within DHS-OIG as to how -- in what 25 timeframe an MOA is supposed to be prepared with respect to the Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 238 of 245238 1 investigative activity? 2 A Yes, sir. 3 Q What is that time frame? 4 A Five days. 5 Q And were you -- was that five day timeframe routinely being 6 met by the McAllen field office? 7 A 8 within five days of the activity. 9 Q Well, the handbook says that the activity has to be recorded But was the McAllen field office meeting that policy based 10 on what you were told by the special agents when you arrived in 11 October, November 2011? 12 A 13 timely manner. 14 a timely manner having been approved. 15 Q 16 information from whoever was reviewing it, are those concerns 17 about timeliness ever a reason under any policy with DHS-OIG or 18 anything else to place false information in a report? 19 Yes, sir. I believe the activities were being recorded in a They just weren't being returned to the agent in And any concerns about the timeliness of the return of that MR. EASTEPP: Judge, I'm going to object. 20 whoever reviews it. 21 one person reviewing it. 22 it couldn't be relevant. 23 24 25 THE COURT: question. He said It's been in the record there's more than So if it's not related to Mr. Pedraza, I don't think that's pertinent to the Rephrase it. MR. COONEY: I'll ask the question differently. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 239 of 245239 1 BY MR. COONEY 2 Q 3 for putting false information in it? 4 A No. 5 Q Is that ever a reason to put false information in such a 6 report? 7 A No, sir. 8 Q And then do you recall being asked questions by Mr. Eastepp 9 about the changes in DHS between 2003 and the present? Is the fact that a report is late in being filed an excuse No, sir. 10 A Yes, sir. 11 Q Has DHS changed a lot? 12 A Yes, sir. 13 Q Have its policies and procedures changed a lot? 14 A Some of them, yes, sir. 15 Q What is the policy with respect to the truthfulness and 16 accuracy of MOAs? 17 A 18 the truth. 19 Q Is it an expectation of special agents to report the truth? 20 A Yes, sir. 21 Q Has that expectation ever changed during your career with 22 the Department of Homeland Security? 23 A 24 25 Everything is written in -- it is what it is. You put down You record the truth, whatever -- that's a given. No, sir. MR. COONEY: Agent Green. Your Honor, I have no further questions for Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 240 of 245240 1 THE COURT: Any follow-up, Mr. Eastepp? 2 MR. EASTEPP: 3 THE COURT: I know it's very late, but very briefly. No, that's all right. RECROSS-EXAMINATION 4 5 BY MR. EASTEPP 6 Q Special Agent Green, what is EDS? 7 A It's -- 8 MR. COONEY: 9 THE COURT: 10 Objection. Scope of redirect. Let me hear the answer first, since I don't know what it is. 11 MR. COONEY: Very well. 12 THE COURT: 13 THE WITNESS: I don't know if it's in the scope. It's an internal database that we use to 14 record our case files and their activities. 15 BY MR. EASTEPP 16 Q 17 their own files, correct? 18 A Yes, sir. 19 Q So you as a supervisor, without having to call an agent into 20 your office, can look into the EDS system sitting at your own 21 computer and see what they've been doing on a case, can't you? 22 A Yes, sir. 23 Q So if somebody did that without formally talking and made a 24 note, would there be something wrong with that? 25 A And the special agents access their own cases and update There's nothing wrong with that, no, sir. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 241 of 245241 1 MR. EASTEPP: 2 THE COURT: 3 THE WITNESS: 4 THE COURT: That's all I have, Judge. All right. Agent, you may step down. Thank you. All right. Ladies and gentlemen, why don't 5 we go ahead and break for the evening. 6 and early in the morning, so I'd like you to be here by 8:20. 7 I'd like to start by 8:30. 8 morning, so we can start promptly at 8:30. 9 I'd like to start bright I don't have any hearings set in the Have a pleasant evening. Remember my instructions. Don't 10 investigate the case, don't do anything on the Internet about 11 the case, don't Facebook about the case. 12 instructions verbatim. 13 See you in the morning. (Jury leaves courtroom) THE COURT: 14 15 Thank y'all. Just follow my Okay. Mr. Cooney, who are we looking at tomorrow morning? MR. COONEY: 16 Counsel, be seated. Your Honor, we're looking at Agent Della 17 Saenz, Cynthia Hinojosa, J.R. Flores, and then I think -- I 18 think from there -- we definitely anticipate calling more 19 witnesses than that tomorrow, but I think we are trying to make 20 a few decisions about exactly how we're sliding based on 21 schedules and whatnot. 22 THE COURT: 23 MR. COONEY: 24 25 Okay. But I think that's certainly enough to get us -THE COURT: Let Mr. Eastepp know. Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 242 of 245242 1 MR. COONEY: 2 THE COURT: Absolutely. I just want to get started promptly. I 3 think we made a good start today, but keep us on track here 4 because if we can finish this week -- if we go over the weekend, 5 you know, we always have a chance of losing the jury. 6 don't mean losing the jury, but getting them where they're 7 forgetting stuff and not paying attention. 8 ready to start promptly at 8:30. 9 10 11 12 13 14 15 MR. EASTEPP: Couple of things. MR. COONEY: We will promptly inform him. We just have to deal with some logistical issues. THE COURT: You don't necessarily have to promise him the order, but let's get him the names. 17 MR. EASTEPP: One thing. Yes, absolutely. We'll get him the names. That's fine too. The Special Agent Handbook and these things, 19 these violations have come up enough. 20 instruction fairly early tomorrow? 21 instruction that says -- 23 A, I hope I can find out the witness names not at 10:00 tonight or something. MR. COONEY: 22 So let's be here Anything else we can take up tonight? 16 18 And I THE COURT: Can I get the limiting We agreed on it, the Christo Why don't you prepare an instruction for me how you want it to read and let me look at it. 24 MR. EASTEPP: 25 MR. COONEY: We did, and it's in the record unopposed. We do not object to the limiting Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 243 of 245243 1 instruction. 2 THE COURT: 3 MR. EASTEPP: 4 instruction. 6 Did you file it by itself? It's not buried in some motion? 7 MR. EASTEPP: 8 THE COURT: 9 It's called the Christo limiting I filed it, and I'll get it. THE COURT: 5 Do you remember what it's in? Filed it by itself last week sometime. Oh, okay, okay. I'll get it then. I -- you know, I'm old school, and the thought -- we don't have files, 10 you know, anymore. And so when you have to do it all by 11 computer, if it's buried in the middle of something else, 12 finding something is not easy. 13 MR. EASTEPP: 14 THE COURT: 15 See you in the morning. * * * 17 (End of requested transcript) 18 20 Thank y'all. (Court adjourned at 5:29.) 16 19 That's all I have. -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 21 22 Date: May 22, 2014 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 244 of 245244 1 I N D E X 2 JURY TRIAL 3 MARCH 10, 2014 4 Discussion RE how to refer to the counts 3 5 Admitting exhibits 7 6 Voir dire 18 7 Individual voir dire 53 8 Court strikes 74 9 Counsel making strikes 75 10 Jury selected 75 11 Jury sworn 76 12 Clarifying live counts in the indictment 78 13 Preliminary instructions to the jury 80 14 Government's opening statement 97 15 Defendant's opening statement GOVERNMENT'S WITNESSES: 18 19 DAVID GREEN 21 Name 22 GREEN, DAVID 24 25 DIR CROSS RDIR RCRS 125 180 227 240 V/DIRE ALPHABETICAL INDEX 20 23 110 CHRONOLOGICAL INDEX 16 17 PAGE Page 125 Case 1:13-cr-00305 Document 147 Filed in TXSD on 05/23/14 Page 245 of 245245 GOVERNMENT'S EXHIBITS 1 2 NO. 3 4 6 7 18A 5 18B 6 18C 7 19A 8 19B 9 19C 10 19D 19E 11 19F DESCRIPTION OFFRD ADMTD W/DRAW 14 14 5/16/88 Pedraza appointment affidavit 3/14/97 Pedraza appointment affidavit 5/18/03 Pedraza appointment affidavit Vargas appointment affidavit Healey appointment affidavit Flores appointment affidavit Saenz appointment affidavit Castillo appointment affidavit Gomez appointment affidavit 16 16 16 16 16 16 16 16 16 16 16 16 16 16 16 16 16 16 OFFRD ADMTD 9 7 7 7 12 DEFENDANT'S EXHIBITS 13 14 NO. 15 10 17 18 16 17 18 19 20 21 22 23 24 25 DESCRIPTION Mr. Pedraza's evaluations Final inspection report Ryan report W/DRAW Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 1 of 344 246 IN THE UNITED STATES DISTRICT COURT 1 2 3 4 5 6 SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-13-305 ) EUGENIO PEDRAZA ) __________________________________) 7 8 JURY TRIAL, DAY 2 BEFORE THE HONORABLE ANDREW S. HANEN MARCH 11, 2014 VOLUME 2 9 10 11 12 13 APPEARANCES: 14 For the Government: 15 16 MR. J. P. COONEY MR. BRIAN K. KIDD USDOJ, Criminal Division 1400 New York Ave., N.W., Suite 12100 Washington, D.C. 20005 17 For Deft. Pedraza: MR. LARRY EASTEPP Larry D. Eastepp P.C. 5300 Memorial, Suite 1000 Houston, Texas 77007 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)982-9668 18 19 20 21 22 23 24 25 Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 2 of 344 247 THE COURT: 1 2 All right. Be seated. Counsel, we have all our jurors here. But 3 before we start, one of our jurors mentioned to the court 4 security officer that when we did our jury selection yesterday, 5 I guess it never occurred to her, although I'm not sure I 6 directly asked this either, she's divorced from a Border Patrol 7 officer and didn't mention it. 8 your jury list would be Juror No. 20. 9 And it's Juror No. 6, who on I think it's -- I don't want to say superfluous, but, I 10 mean, I just think it's neither here nor there; but I'll be glad 11 to bring her in and ask her any questions y'all want me to ask 12 her. 13 in El Paso. 14 I mean, they've been divorced since 2007, and he now lives So what's your druthers? MR. EASTEPP: I don't see the need, at least from our 15 standpoint, Judge, of doing anything about it. 16 that that information, if I knew it yesterday, would have meant 17 more than what it means to me now. 18 19 20 21 THE COURT: Yeah. I don't know I mean, it wouldn't make a difference to me either. Mr. Cooney, what about the government's standpoint? MR. COONEY: I think we're in the same boat that way. 22 We only wonder -- somewhat wonder out loud without firmly 23 requesting it whether it wouldn't make sense to bring her in 24 just to ask the ultimate question, which is, "Having pondered 25 that, does that impact your ability to, you know, follow Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 3 of 344 248 1 instructions and make a determination based on the facts 2 presented in court?" 3 THE COURT: What's your pleasure, Mr. Eastepp? 4 mind bringing her in and asking her that. 5 going to be, you know, "Sure, I can follow directions." 6 we ought to do that just to be sure. 7 MR. EASTEPP: 8 THE COURT: 9 MR. COONEY: 10 11 12 13 14 15 THE COURT: Juror No. 6, but her name is Veronica Gonzalez. I don't know if y'all have your list, but -- Cristi, show that to Mr. Eastepp and Mr. Cooney. MR. EASTEPP: We're not allowed to keep them, Judge, under policy. MR. EASTEPP: 21 I'll defer to the Court on it. Would you ask -- it's Juror No. -- she's now 17 20 Maybe And we're not -- THE COURT: 19 I mean, I think it's All right. 16 18 I don't Well, that's what I was -She was the one we brought up-front yesterday. (Juror present.) THE COURT: Right up here. Counsel, this was Juror No. 20 when we were doing jury 22 selection yesterday, and I understand that -- that I probably 23 didn't ask a question about whether you were ever divorced from 24 a Border Patrol officer, but I understand that you at one time 25 were married to a Border Patrol officer. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 4 of 344 249 1 JUROR: Right, and we separated and were divorced in 2 2006, and I really don't have any contact with him. 3 El Paso, and so I just don't even -- 4 THE COURT: He lives in Is there anything about that relationship -- 5 and I always hate to ask about exes, because there's always 6 something about relationships. 7 relationship and your divorce from him that would make it hard 8 for you to be fair and impartial to both sides here? 9 JUROR: But is there anything about that No. 10 THE COURT: Mr. Cooney, Mr. Eastepp, any questions? 11 MR. COONEY: 12 MR. EASTEPP: 13 THE COURT: 14 JUROR: 15 (Juror leaves.) No, Your Honor. No, sir. All right. Thank you, ma'am. Thank you. 16 THE COURT: 17 MR. COONEY: 18 THE COURT: 19 MR. COONEY: All right. Are we ready to go then? Just one preliminary issue. All right. The government intends to now offer as 20 Government's Exhibit No. 21 a video of the case file room from 21 January 25th of 2012, just about three minutes of that video. 22 And I think we are unable to reach a stipulation about it, about 23 its admissibility, because the time stamp is inconsistent 24 with -- it indicates that this all occurred at like 4:30 in the 25 morning, which we're all in agreement is incorrect based on Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 5 of 344 250 1 other objective records. 2 speak for the defense, but they would like to essentially 3 cross-examine an authenticating witness about that particular 4 issue. 5 But it's my understanding, not to We don't intend to offer it for the time, but we do -- we 6 are confident we can authenticate the date itself, that it 7 occurred sometime during the day of January 25th. 8 9 If we can reach a stipulation as to that, then we're good; but if not, then we will bring a witness. And I believe the 10 defense is asking that the witness come in outside the presence 11 of the jury. 12 MR. EASTEPP: I'm not trying to delay things by any 13 means, Judge, but in that obstruction count, they have a hard 14 and fast time period of January 25th to February 9th, the day he 15 was placed on leave. 16 the date stamp is not wrong. 17 a huge difference than the day they're purporting it to be. 18 I don't want -- 19 THE COURT: The time stamp's wrong. I don't know that So if it's the day before, that's Why don't we bring in a witness. So And if 20 it's your preference to do it outside the presence of the jury, 21 I'll consider that. 22 Mr. Eastepp can cross the witness. 23 24 25 MR. COONEY: If not, you can put him on the stand, and We're just prepared to bring in a witness and put the witness on the stand just in trial. THE COURT: That's fine with me. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 6 of 344 251 1 MR. EASTEPP: I would like it outside the presence just 2 in case the Court finds that the date stamp is so inaccurate 3 that it shouldn't be admitted, or should be admitted and the 4 Court give some sort of warning. 5 THE COURT: 6 MR. COONEY: 7 8 9 Who would be the witness? We would actually recall Agent David Green for this limited purpose. THE COURT: All right. Why don't we do it outside. Let's plan on doing it -- is Mr. Green here today? 10 MR. COONEY: 11 THE COURT: We're collecting him now, but he -You're collecting him. Well, maybe we can 12 do it at lunch or at a break, and we'll just -- we'll hear from 13 him on that. 14 Other than that issue, are we ready to go? 15 MR. COONEY: 16 THE COURT: 17 18 19 Yes. All right. (Jury enters courtroom) THE COURT: Ladies and gentlemen, be seated. We're still struggling with our computers unfortunately. 20 Every time we get updates from Houston and every time Houston 21 gives us an update, nothing works, so -- and I don't know what 22 we can do to just quit trying to help us. 23 Good morning. 24 Mr. Cooney, who's our next witness? 25 MR. KIDD: Leave us alone. Glad you're here. Mr. Kidd? Your Honor, the government would like to call Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 7 of 344 252 1 Department of Homeland Security-Office of Inspector General 2 Special Agent Della Saenz at this time. THE COURT: 3 All right. Get Ms. Saenz. Right up here if you will, ma'am. 4 5 THE WITNESS: 6 (Witness sworn.) THE COURT: 7 Yes, sir. Be seated. DELLA SAENZ, 8 9 the witness, having been first duly cautioned and sworn to tell 10 the truth, the whole truth and nothing but the truth, testified 11 as follows: DIRECT EXAMINATION 12 13 BY MR. KIDD 14 Q Good morning, Agent Saenz. 15 A Good morning. 16 Q Can you please state your full name and spell it for the 17 record? 18 A 19 S-A-E-N-Z. 20 Q 21 background after high school? 22 A 23 Cruces, New Mexico, where I received a bachelor's degree in 24 psychology in December of 1996, and I also received my master's 25 degree from the same university in May of 1999 in criminal Della Josephina Saenz. D-E-L-L-A, J-O-S-E-P-H-I-N-A, And do you mind giving the Court a quick educational Yes, sir. I attended New Mexico State University in Las Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 8 of 344 253 1 justice. 2 MR. EASTEPP: 3 THE COURT: I don't think the mic is on, Judge. Sometimes you can't move that microphone 4 enough to make that help. 5 Houston. That's another upgrade we got from Go ahead, Mr. Kidd. 6 7 BY MR. KIDD 8 Q Agent Saenz, where are you currently employed? 9 A I'm currently employed with the Department of Homeland 10 Security-Office of Inspector General in McAllen, Texas. 11 Q And what's your job title at DHS-OIG? 12 A I'm a special agent. 13 Q And as a special agent with the DHS-OIG, what are your job 14 responsibilities? 15 A 16 the Department of Homeland Security and components under DHS. 17 We also investigate public corruption, criminal allegations of 18 misconduct. 19 Q 20 abuse against employees or the components of DHS, does that 21 include employees of these components? 22 A Yes, sir. 23 Q Would that include law enforcement officers? 24 A Yes, sir. 25 Q What law enforcement components does DHS-OIG have oversight We investigate allegations of fraud, waste and abuse within So when you say you investigate corruption, fraud, waste and Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 9 of 344 254 1 over? 2 A 3 ports of entry, U.S. Border Patrol, Secret Service, TSA, Coast 4 Guard, Air Marshals. 5 Q It's a number of agencies. 6 A Yes, sir. 7 Q Now, what office do you work for? 8 A McAllen, Texas. 9 Q You're based out of McAllen, Texas? 10 A Yes, sir. 11 Q Have you ever worked in any other field office or office of 12 DHS-OIG? 13 A No, sir. 14 Q Where did you work when you went on detail? 15 A I went on detail to Alpine, Texas. 16 Q How long were you in Alpine, Texas? 17 A I did -- I believe it was two weeks at a time, and I went 18 about three or four times. 19 Q So they were short stints. 20 A Yes, sir. 21 Q But during that time, you were still based out of McAllen, 22 Texas. 23 A Yes, I was. 24 Q And prior to joining DHS-OIG, where did you work? 25 A Immediately prior to that, I was a uniformed officer with We have oversight over CBP, which includes Customs, the Only on detail. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 10 of 344 255 1 the U.S. Fish and Wildlife Service. I was a refuge officer here 2 in the Rio Grande Valley. 3 Border Patrol agent in Eagle Pass, Texas. 4 Q 5 mentioned as a refuge officer and with Customs and Border 6 Protection, were those other law enforcement jobs? 7 A Yes, they were. 8 Q Besides the three jobs you've now talked about as a special 9 agent, a refuge officer and as an agent with Customs and Border And prior to that, I was a U.S. And were all of those -- were those -- the last two you 10 Protection, have you worked any other law enforcement jobs? 11 A No, I have not. 12 Q Prior to starting your employment with DHS-OIG as a special 13 agent, did you receive any specialized law enforcement training? 14 A Yes, I did. 15 Q Where did you receive that training? 16 A The Federal Law Enforcement Training Center in Glenco, 17 Georgia. 18 Q How long was that training? 19 A That training was 12 weeks. 20 Q Okay. 21 is that right? 22 A Yes. 23 Q Is that commonly referred to as FLETC? 24 A Yes, it is. 25 Q During your time at FLETC, what were some of the topics that You said the Federal Law Enforcement Training Center; Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 11 of 344 256 1 were covered during your training? 2 A 3 writing, defensive tactics, law. 4 Q 5 a special agent with DHS-OIG? 6 A Yes, sir. 7 Q Did you receive any additional training besides just the 8 standard training at FLETC? 9 A Yes. 10 Q And what was that add-on course? 11 A Again, it was more agency specific related to like the 12 reports that we write in DHS-OIG, undercover operations, how to 13 wire up a confidential informant, how to conduct surveillance. 14 Q Would you recall -- it was just a more specific training? 15 A Yes, more specific to the job that we -- we would be doing. 16 Q I want to focus just for a moment on the report writing 17 classes that you took in both FLETC and this add-on course. 18 A Okay. 19 Q During those courses, what were the general topics that they 20 covered? 21 A 22 clear, concise, accurate, written as contemporaneously to the 23 activity as when it happened. 24 Q 25 accurate? You had patrol skills, firearms, driving skills, report Kind of covered the gambit of things you would encounter as We had a two week add-on course in Maryland. In the report writing, basically that your reports should be And why were those elements important: Clear, concise and Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 12 of 344 257 1 A Because you may need to reference that report at a later 2 time. 3 Q 4 of Homeland Security or as a refuge officer or as a CBP agent, 5 have you ever had the opportunity to draft a report of 6 investigation or one of these reports? 7 A Yes. 8 Q And what sort of activity were you -- do you place in a 9 report of investigation? Now, during your time as a special agent with the Department 10 A The -- you usually start off with the date of the activity, 11 who was present at the activity, what type of activity you did, 12 oftentimes the reason for conducting the activity, and the 13 outcome. 14 Q And why is it important to document this? 15 A Because you'd never -- you may have to reference it at a 16 later time, and you may not remember the details because you 17 don't know the time in between of when the activity took place 18 versus when you're going to have to recall that information. 19 Q 20 or just kind of the milestones or the larger investigative 21 activity you take? 22 A Anything that's pertinent that has investigative value. 23 Q And you said that -- during your testimony that sometime -- 24 that you were drafting these reports because sometimes you'd 25 have to go back and refer to the reports? And are you writing a report for all investigative activity Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 13 of 344 258 1 A Yes, sir. 2 Q Because you couldn't -- you might not remember what had 3 happened? 4 A Yes. 5 Q Have you ever had the opportunity where you have had to go 6 back and refer -- refer to a report you had written previously? 7 A Yes, I have. 8 Q Can you give us an example of that? 9 A Well, in the U.S. Border Patrol, I had to testify in a case 10 of an individual who was fighting his deportation, and I had to 11 reference the report that I had written regarding the processing 12 of that individual. 13 the fact. 14 Q 15 you certain that it was -- I mean -- let me start that again. And it was -- it was several months after And when you went back and referenced your own report, were When you went back and looked at your report, did you count 16 17 on that being accurate? 18 A Yes. 19 Q Why did you assume that your reports were accurate? 20 A Because that's how -- what I was trained to do, to make sure 21 that it was accurate; all the important points were noted in the 22 report. 23 Q 24 agent with DHS-OIG or Border Patrol or with the U.S. Fish and 25 Wildlife, have you ever had the opportunity to refer back to a And during your time as a law enforcement officer or special Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 14 of 344 259 1 report written by another agent? 2 A Yes, I have. 3 Q Can you explain the time when that happened? 4 A Oftentimes you will reference another agent's or agency's 5 reports when you get assigned a new investigation if they have 6 background on the individual that you're looking at. 7 if you get a case that's been transferred to you that there's 8 already been investigative activity conducted, you'll reference 9 those reports to see what activity has been done on the case to Sometimes 10 determine what direction or what leads you need to follow-up on. 11 Q 12 to those investigative reports written by other agents, have you 13 counted on them to be correct? 14 A Yes. 15 Q Why? 16 A Because as law enforcement agents, we take an oath to be 17 honest in what we do to uphold the laws of the constitution. 18 Q Did you take an oath when you took office? 19 A Yes, I did. 20 Q And to the best of your knowledge, do other special agents 21 take oaths when they come into office? 22 A Yes. 23 Q And you count on them to follow that oath? 24 A Yes. 25 Q And why do you count on them to follow that oath? And when -- throughout your career when you've referred back Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 15 of 344 260 MR. EASTEPP: 1 Judge, this was all put in the record 2 yesterday and it's cumulative at this point. 3 in that all of them have sworn the oath that every federal 4 officer swears. THE COURT: 5 The exhibits are Let's go on to your next question, Mr. Kidd. 6 BY MR. KIDD 7 Q 8 office of DHS-OIG? 9 A October of 2010. 10 Q And when you started with the office, who is -- who was in 11 charge? 12 A Eugenio Pedraza. 13 Q Did you interview with the defendant? 14 A Yes, I did. 15 Q Eugenio Pedraza? 16 A Yes, I did. 17 Q Was he the one that hired you? 18 A Yes, I did. 19 Q Was he your -- was he your primary supervisor in the office? 20 A No. 21 Q Who was your primary supervisor? 22 A My first line supervisor was William Warren. 23 Q What was the relationship between defendant and Mr. William 24 Warren? 25 Agent Saenz, when did you start with the McAllen field Who was the special agent in charge of that office? Or yes, he was. I'm sorry. First of all -- I'm sorry. What was William Warren's title? Let me step back. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 16 of 344 261 1 A He was the assistant special agent in charge. 2 Q And what does that mean? 3 A He is the first line supervisor. 4 are supposed to go to first with any issues, I guess anything 5 related -- questions, issues that you have with your 6 investigations. 7 Q 8 that make Defendant? 9 A He oversaw the entire office. 10 Q Would he be the second line supervisor? 11 A -- agent in charge. 12 Q Would the defendant be the second line supervisor? 13 A Yes. 14 Q So when you started in the office, did you take -- did 15 you -- was your primary point of contact William Warren? 16 A Yes. 17 Q Did it stay that way throughout your tenure at DHS-OIG under 18 Defendant's -- while Defendant was the special agent in charge? 19 A Not necessarily, no. 20 Q Why not? 21 A Oftentimes Mr. Warren wasn't in the office. 22 Q What do you mean he wasn't in the office? 23 A He wasn't there. 24 So if you had a question or issue or needed some direction or 25 guidance on a case, if he wasn't there, then we would go to the He's the one the agents If William Warren was the first line supervisor, what would He was the special -- He kind of had a sporadic work schedule. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 17 of 344 262 1 defendant. 2 Q And how often was that? 3 A Fairly often. 4 Q Can you give us -- how many hours a week was William Warren 5 in the office that you can recall? 6 A If I had to guess, I would say about 15 to 20 hours a week. 7 Q What's the normal work schedule? 8 A 40 to 50 hours per week. 9 Q And did that change throughout your time at DHS-OIG under 10 Defendant? 11 A No. 12 Q So about -- so William Warren was there about 15 to 20 hours 13 a week? 14 A My guesstimate, yes, sir. 15 Q So did that -- did that -- when William Warren wasn't there, 16 were you reporting directly to Defendant? 17 A Yes, I was. 18 Q Now, when you started in that McAllen field office, how were 19 you treated by Defendant? 20 A 21 just figured I was the new agent, so you kind of have to kind of 22 prove yourself and earn respect. 23 little guidance given. 24 you were set up to fail. 25 stack of files within my first week and told me, "Let me see That was pretty consistent. It was -- it was a little rough going at the beginning. I But it was -- there was very It was more of -- you almost felt like I was I guess, for example, given a Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 18 of 344 263 1 what you got." I didn't have anything to go on. 2 didn't know how, you know, really to -- where do you start, what 3 step A, B, C is. I wrote a report. 4 I didn't -- I He asked me to write a report. I wrote 5 it. And he came back and he said, you know, it was -- it had a 6 lot of corrections on it. 7 want to bring you on as a 12 because you're not 12 material. 8 Q 9 was he referring to? And he told me: This is why I didn't When you say he didn't want to bring you on as a 12, what 10 A The grade that I entered, the pay grade. 11 Q And does the pay grade 12 have any significance other than 12 just a higher salary? 13 A It -- it means that you have experience. 14 Q Besides -- so you said when you started, it was kind of a 15 rough start. 16 A Yes. 17 Q Did that change over time, the way you were treated by 18 defendant? 19 A No. 20 Q So when you say it was rough and you gave this one example, 21 what else are you referring to? 22 A 23 It wasn't across the board. 24 lot of belittling. 25 do anything right. No, it didn't. It was consistent. How else were you treated? I mean, however, it wasn't just to me. We received a lot of criticism, a It almost felt I guess that you could never Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 19 of 344 264 1 Q Did that ever change? 2 A No. 3 Q And you said that the other agents in the office were 4 treated the same way. 5 A Yes, I did. 6 Q So this isn't something you heard? 7 A Excuse me? 8 Q This isn't just something you heard. 9 saw? Did you witness that? This is something you 10 A Yes. 11 Q Were all the agents treated the same way? 12 A Most of the agents were. MR. EASTEPP: 13 I'm going to object to this whole line of 14 questioning, to the relevance of it to the charges in the 15 indictment, how somebody's feelings were getting hurt or not 16 getting hurt. THE COURT: 17 18 Mr. Kidd. MR. KIDD: 19 20 Let's move on to something more relevant, Would you mind if she answers the last question, Your Honor? 21 THE COURT: 22 THE WITNESS: 23 BY MR. KIDD: 24 Q 25 I do think it is relevant. She can answer the last question. Can you repeat the -- Were all the agents in the office treated the same way? THE COURT: Rephrase the question or repeat it. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 20 of 344 265 1 BY MR. KIDD 2 Q 3 of bullied or harassed? 4 A Most of them were, yes. 5 Q Were there any agents who were not? 6 A There were two agents that were not treated as poorly. 7 Q Who were those two agents? 8 A Wayne Ball and Camillo Garcia. 9 Q And how were they treated? 10 A Mr. Garcia was treated considerably better. 11 would still receive some of the I guess hazing, if you want to 12 call it that, but you could tell -- he was -- those two were the 13 ones that you could tell the defendant trusted. 14 Q Were all the agents in the office treated the same way, kind Do you know why he trusted them more than -MR. EASTEPP: 15 Mr. Ball, he Judge, I let it go for a couple of 16 questions, and he's back on the same topic that the Court asked 17 him to -THE COURT: 18 19 Well, I think this -- I'm going to overrule that objection. Go ahead. 20 21 BY MR. KIDD 22 Q 23 other agents in the office? 24 A No, I don't. 25 Q Now, besides the agents who worked in the office, were there Do you know why he trusted those two agents over all the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 21 of 344 266 1 other -- any other employees in the McAllen field office? 2 A Yes. 3 Q Who else was in the office besides the special agents? 4 A We had an administrative assistant and an intern. 5 Q Who was the administrative assistant? 6 A Cynthia Hinojosa. 7 Q What was her role in the office? 8 A She primarily dealt I guess with the supplies in the office, 9 she was the evidence custodian, and she maintained our case 10 files, making sure all the official documents were in the file. 11 When a file was closed, she was in charge of merging our work 12 file with the case file to make sure all the original documents 13 were in the file, and it was prepared to be sent up to 14 headquarters. 15 Q Who did Ms. Hinojosa report to? 16 A To the defendant. 17 Q Did she report to anybody else in the office? 18 A She did deal with Mr. Warren. 19 Q But would you say her primary supervisor was the defendant? 20 A Yes. 21 Q Did Ms. Hinojosa have access to the file room? 22 A Yes, she did. 23 Q And do you know what the file room -- what the file room is? 24 I'm referring to something, but do you know what I'm talking 25 about? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 22 of 344 267 1 A Yes, I do. 2 Q What is the file room? 3 A That's the room where all our case files are housed, I 4 guess. 5 Q And did Ms. Hinojosa have access to that? 6 A Yes, she did. 7 Q Why would she have access to that room? MR. EASTEPP: 8 9 10 relevance of this. supervisor. She's not the office manager or the Mr. Green was on the stand yesterday. THE COURT: 11 Judge, I'm going to object to the Overruled. 12 BY MR. KIDD 13 Q 14 she have access to the file room? 15 A 16 we needed to review a case file or if a case file needed to be 17 pulled again for closing. 18 needed to review it for whatever reason, she would -- she had 19 access to pull those files. 20 Q And what was Ms. Hinojosa's relationship with Defendant? 21 A It was fine. 22 Q Besides Ms. Hinojosa, who had access to the file room to 23 your knowledge? 24 A 25 also had access. Why would Ms. Hinojosa be going in the file room? Why would She was the one we would go to, either her or the intern, if Or if the defendant, Mr. Warren I believe the defendant had access, and I know the intern Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 23 of 344 268 1 Q Who was the intern? 2 A When I first started or -- 3 Q When you first started, who was the -- who was the intern 4 when you started in the office in -- in late 2009 or 2010? 5 A Veronica Bernal. 6 Q Did that change at some point? 7 A Yes, it did. 8 Q Who did it change to? 9 A Carlos Mandes. 10 Q Do you know when he came into the office? 11 A He came in I believe around January of 2011. 12 Q And did he have access to the file room? 13 A Yes, he did. 14 Q Who did the intern report to? 15 A The defendant. 16 Q Did he report to anybody else? 17 A I know he received I guess directive from Ms. Hinojosa also. 18 Q Do you know what his role in the office was? 19 A He was more of a support I guess for Ms. Hinojosa. 20 helped her with tasks such as when we got a new file, opening -- 21 creating our case or our work file jackets, uploading documents 22 into our agency database, tasks like -- you know, nothing 23 dealing with headquarters per se I don't believe; just there 24 within the office. 25 Q He So he assisted in any way that was needed with either Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 24 of 344 269 1 Ms. Hinojosa or the defendant? 2 A Correct. 3 Q Besides those three individuals from the time you started in 4 late 2010 through February of 2012, do you know who else had 5 access to the file room? 6 A No, I don't. 7 Q Did you have access to the file room? 8 A No. 9 Q During that time, did you ever go into the file room? 10 A No. 11 Q Did you ever have Cindy go into the file room for you? 12 A Yes. 13 Q Why would you do that? 14 A Again, if there was a reason I needed to review a file. 15 I didn't get a copy -- usually we would get copies of the 16 reports that we write. 17 file, and we'd have a copy in our work file. 18 duplicates. 19 misplaced and we wouldn't have it in the work file, so we would 20 reference the case file to make sure that that report made it in 21 the case file, create a copy for our work file. 22 Q Was that a common occurrence? 23 A No, I wouldn't say that it was. 24 Q Did you ever see any of the other agents in the office 25 besides Defendant go into the file room? If There's the original copy in the case They're Oftentimes a copy would either get lost or Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 25 of 344 270 1 A No, not that I can recall. 2 Q You never witnessed that? 3 A No. 4 Q To the best of your knowledge, did they use the -- if they 5 needed a file out of the file room, did they go through the same 6 process? 7 A Yes. 8 Q Now, at some point did you become aware that the McAllen 9 field office was going to have -- was going to be inspected by Go to either Ms. Hinojosa or the intern? 10 headquarters? 11 A Yes. 12 Q Do you know when you first heard about that? 13 A I believe it was at the beginning of 2012, because I was at 14 the academy at that time. 15 Q Did you say 2012? 16 A Yes. 17 Q And how did you first hear about this in -- upcoming 18 inspection? 19 A 20 defendant at one point stating that the inspection had been 21 postponed; that the inspection that was going to take place that 22 spring had been postponed. 23 Q 24 out when the inspection was going to take place? 25 A Or 2011. I'm sorry. The only thing I can remember is receiving an email from the When you came back from the academy, did you -- did you find Later on, yes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 26 of 344 271 1 Q What was your understanding of when the inspection was going 2 to take place? 3 A In the fall -- 4 Q Do you know when -- 5 A -- of that year. 6 Q Do you know when in the fall? 7 A We eventually learned that it was going to be in September. 8 Q Did you ever have any conversations with the defendant about 9 the upcoming inspection? 10 A One-on-one conversation or -- 11 Q Either one-on-one or -- 12 A -- just in the office? 13 Q -- just a conversation with the defendant about the 14 inspection. 15 A Yes. 16 Q Can you tell us about that conversation? 17 A He had notified us that this inspection was coming up; that 18 we needed to make sure that we had all our files in order; be 19 prepared for the inspection. 20 would be speaking to one of the inspectors. 21 Q 22 conversation? 23 A It was a group conversation. 24 Q Do you know where that took place? 25 A It was actually during a defensive tactics refresher that we At one point he stated that we And was this a one-on-one conversation or email or a group Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 27 of 344 272 1 had I believe a week or so, couple weeks prior to the 2 inspection. 3 Q Was the entire office at the -- at the training? 4 A Yes. 5 Q Now, in the weeks leading up to the inspection, what was the 6 morale in the office like? 7 A 8 be, you know, stressed out about this upcoming inspection. 9 Q The office was somewhat tense. The defendant appeared to When you say the defendant appeared to be stressed out, what 10 do you mean? 11 A 12 going over the files, making sure everything was there, asking 13 people, you know, what was going on with certain cases, that 14 type of thing. 15 Q Was that normal behavior by the defendant? 16 A Not to that -- to that extent, no. 17 Q And when you say not to that extent, what do you mean? 18 you just explain what's different between right before the 19 inspection to, say, three months before the inspection? 20 A 21 I'm looking for? 22 done. 23 You know, he wanted -- he wanted everything in order, make sure 24 everything was ready to go. 25 Q Just more short tempered. You know, making -- you know, He just seemed more on edge. Can It was more -- what's the word I guess it just -- that we had to get this You know, it wasn't -- we couldn't wait until tomorrow. And one of the things he was talking about were your case Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 28 of 344 273 1 files? 2 A Yes. 3 Q Was there anything else that he highlighted? 4 A Not that I can recall. 5 Q So it was really just focused on the case files? 6 A Yes. 7 Q At any point in the weeks leading up to the inspection, did 8 the defendant come and talk to you personally about one of your 9 work cases? 10 A Yes, he did. 11 Q Do you remember what case file he came to talk to you about? 12 A Yes, I do. 13 Q What was the name of the case? 14 A Daniel Garcia. MR. KIDD: 15 Judge, may I approach? 16 BY MR. KIDD 17 Q 18 Government's Exhibit 9. 19 A Yes. 20 Q Is that the file you were referring to? 21 A Yes, it is. 22 Q And do you -- go ahead and take a minute and flip through it 23 if you want. 24 25 I'm going to show you what's been previously marked as Can you take a look at that? What were the allegations in that case? me do something real quick. You know what? Let me go ahead and -- Let Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 29 of 344 274 MR. KIDD: 1 2 BY MR. KIDD: 3 Q Judge, may I approach? Let me go ahead and take that back now. Do you recall what the allegations in the Garcia case were? 4 5 A Yes. 6 Q Can you tell us? 7 A He was a Border Patrol agent who was alleged to have 8 approached an individual and offered to facilitate the smuggling 9 of aliens and/or narcotics using his official position. 10 Q And at the time Defendant approached you about this case, 11 was it an open criminal investigation? 12 A Yes, it was. 13 Q When had that case been assigned to you? 14 A It had been assigned to me in June of 2011. 15 Q And when were you and Defendant having this conversation 16 about the Garcia case? 17 A 18 inspection of 2011. 19 Q 20 is that correct? 21 A I believe so, yes. 22 Q Do you know who had the case before you? 23 A Agent Garcia. 24 Q And when you say Garcia, what agent are you referring to? 25 A Camillo Garcia. It was I believe in August or early September, prior to the So the case had been assigned to you for about three months; Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 30 of 344 275 1 Q And when you received the case file in June of 2011, what 2 was in it? 3 A 4 printed from Google maps or street view. 5 Q Were there any investigative reports in the file? 6 A No. 7 Q Had any other work been documented? 8 A I believe there might have been an operational plan in 9 there, but that was it -- All that was in it was a picture of a house that had been 10 Q Do you know when -- 11 A -- that I can recall. 12 Q -- the case was opened? 13 A It was opened in May, I believe, of 2010. 14 Q So from May of 2010 up and through June of 2011 when you 15 received the file, no investigative work had been documented? 16 A Correct. 17 Q When you received the file in June of 2011, did you go about 18 conducting investigative activity? 19 A Yes, I did. 20 Q What activity did you conduct? 21 A I -- I did ask Mr. Garcia what had been done on the case, 22 and he had mentioned something about that operational plan. 23 said it's a nothing. 24 that -- that's all he said. 25 The CI, you know, quit cooperating. He But So from there I started conducting my own surveillance of Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 31 of 344 276 1 the Border Patrol agent. I ran database checks, criminal 2 history, lane crossings to see if he had been into Mexico, what 3 vehicles, financial records, that kind of -- 4 Q Did you document that investigative activity? 5 A Yes, I did. 6 Q How did you document it? 7 A On a memorandum of activity. 8 Q Were those in the file at the time the defendant approached 9 you about the case? 10 A No. 11 Q Do you know where they were? 12 A I had submitted them to Mr. Warren for approval, and I had 13 not received them back. 14 Q 15 there any memorandum of activity or investigative reports in the 16 file? 17 A No, there was not. 18 Q Can you tell us about this conversation you had with the 19 defendant? 20 A 21 no reports in this file. 22 the ones that was going to be reviewed during the inspection. 23 Q Do you know on or about when he emailed you about that? 24 A That was in early August of 2011. 25 him at that point and told him that I had submitted my So at the time Defendant approached you about the case, were He had -- he had once emailed me and stated that there were We needed -- it was going to be one of I had a conversation with Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 32 of 344 277 1 memorandums of activity to Mr. Warren and had not received them 2 back. 3 Q 4 you received an email from Defendant? 5 A Correct. 6 Q And then you had a conversation with him at that time? 7 A Yes. 8 Q Right after you got the email? 9 A Yes. 10 Q Okay. 11 A Yes. 12 Q Tell us about that. 13 A Later that month I believe he came to me again and asked 14 about the file. 15 again, I have not gotten my memorandums of activity back from 16 Jody. 17 Q 18 conversation take place? 19 A It took place in the reception area in the McAllen office. 20 Q Go ahead. 21 A He said there were some -- we needed to bridge the gaps in 22 this file. 23 what I've done, but I don't know what activity Mr. Garcia did 24 because when I received the file, there was nothing in there. 25 Q And then in late -- Let me stop you real quick. So in two -- in August of 2011 And is there a second conversation about the case? I'm sorry. He said, you know -- and I explained to him Let me stop you real quick. Where did that And I told him, well, I've written reports based on And what did Defendant say when you said that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 33 of 344 278 1 A "We need to bridge these gaps." So I told him: I'll write 2 a report documenting the date I received the investigation when 3 it was assigned to me, what activity I did upon receiving it and 4 thereafter, but I can't -- I can't write anything other than 5 that because I don't know what was done prior to me receiving 6 the case. 7 Q What was Defendant's demeanor during that conversation? 8 A He -- he was calm. 9 Q And how did he react when you said you would draft an MOA 10 documenting when you had been assigned the case? 11 A He said: 12 Q Now, when Defendant -- after that conversation with 13 Defendant, what did you think Defendant had been asking you to 14 do? Judge, I'm going to object that that's speculation. THE COURT: 17 18 I'll talk to Camillo about it. MR. EASTEPP: 15 16 Okay. Overruled. She can testify as to what she thought. THE WITNESS: 19 I believe that he was asking me to write 20 reports to fill in the dates where there was no activity 21 conducted. 22 BY MR. KIDD: 23 Q 24 of inactivity from the start of the case up to present? 25 A Did you believe the defendant was asking you to fill the gap Yes, because there was no activity documented. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 34 of 344 279 1 Q Did you think he was asking you to fill the gap of activity 2 from the day you were assigned the case until the day you had 3 the conversation? 4 A No, because I had already documented that. 5 Q Did you, in fact, write the memorandum documenting when you 6 had been assigned the case? 7 A Yes, I did? 8 Q Why did you do that? 9 A Because as the case agent, I was going to be the one to see 10 the case to its closing, so my name would have been the last 11 name associated to that case. 12 down the line had questions about that case, I didn't want it to 13 reflect on me as to why there was a gap in investigative 14 activity. 15 Q 16 Government's Exhibit 9A. And if the inspectors or anybody Call up Government's Exhibit 9. It's actually -- I'm sorry, I'm going to direct your attention to Government Exhibit 9A 17 18 which is previously admitted. 19 at that document? 20 A Yes, sir. 21 Q Okay. 22 A Yes. 23 documenting when I was assigned the case. 24 25 Can you go ahead and take a look Can you identify that document for the record? That's the memorandum of activity that I wrote MR. KIDD: Mr. Starnes, can you go ahead and highlight the second paragraph? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 35 of 344 280 1 BY MR. KIDD: 2 Q Agent Saenz, can you go ahead and read this paragraph? 3 A "As of June 28th, 2011, this investigation was reassigned to 4 Della J. Saenz, special agent, DHS-OIG. 5 A. Cantu, SA ICE Office of Professional Responsibility, OPR, to 6 obtain updated information related to the FBI and OPR 7 investigation. 8 his or her cooperation and returned to Mexico. 9 that efforts to contact the CI had been unsuccessful, and ICE Saenz contacted Arturo Cantu stated that the FBI CI had discontinued Cantu stated 10 OPR had closed their investigation." 11 Q 12 left, can you identify that? 13 A That is my signature. 14 Q And do you know what the date is written there? 15 A 9/6/2011. 16 Q Is that on or about the date you had a conversation with 17 defendant about this case? 18 A I believe it might have been a week or so afterwards. 19 Q But this is -- this is the memorandum of activity that you 20 had discussed with Defendant, correct? 21 A Yes. 22 Q Can you identify the signature there on the right? 23 A That is the defendant's signature. 24 Q Can you read the date there? 25 A It looks like 1/12/11. And, Agent Saenz, pointing to the signature there on the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 36 of 344 281 1 Q Based on -- based on the date on your side, does that 2 seem -- I mean, it's hard to read, correct? 3 A Correct. 4 Q Now, a few minutes ago you testified that the McAllen field 5 office was going to get an inspection in the fall, correct? 6 A Correct. 7 Q Did that inspection, in fact, take place? 8 A Yes, it did. 9 Q And you had also testified the defendant had told you that 10 the agents were going to meet with some of the inspectors; is 11 that right? 12 A Correct. 13 Q Did that, in fact, happen during the inspection? 14 A Yes, it did. 15 Q Did you have an opportunity to meet with any inspectors? 16 A Yes, I did. 17 Q Who did you meet with? 18 A James Izzard. 19 Q Why were the agents meeting with Mr. Izzard? 20 A He told us that -- from what I can recall, that he was 21 meeting with us just to see how things were going in the office, 22 what the temperament in the office, the morale, to basically 23 make sure things were running smoothly. 24 Q And did you have an opportunity to, in fact, meet with him? 25 A Yes, I did. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 37 of 344 282 1 Q And what did you and Mr. Izzard discuss? 2 A Again, he asked about the morale in the office, about 3 management, how I liked working for DHS-OIG, how -- how cases 4 were distributed, what procedure -- basically what procedures we 5 followed in the office. 6 Q 7 topics? 8 A Yes, I did. 9 Q Told him how you felt? 10 A Yes, I did. 11 Q At any point during that interview, did you tell Mr. Izzard 12 about Defendant approaching you and telling you to fill the gap 13 of inactivity in a criminal case file? 14 A No, I did not. 15 Q Why not? 16 A I didn't think about it. 17 fact that I was going to write a report documenting when I 18 received the case and what I did forward, nothing -- no other 19 conversation was had. 20 didn't -- he didn't ask me. 21 Q 22 inactivity in the reports, did that play into the fact you 23 didn't -- that you didn't report it to Mr. Izzard? 24 A 25 wrote that report and there was no further discussion. And did you give him your honest opinions about all those Since he seemed satisfied with the I didn't think about it again, and it It didn't come up, so... Did the fact that you didn't actually fill the gap of Yes. Like I say, I didn't -- it was a moot point after I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 38 of 344 283 1 Q After that meeting with Mr. Izzard, did you ever have an 2 opportunity to speak with him again? 3 A 4 one point just to clarify I believe a document name or something 5 to that effect, but nothing of real substance. 6 Q 7 little bit. 8 A Okay. 9 Q I'm going to direct your attention to April of 2011. No, I don't believe I -- well, actually he did call me at Okay. Now I'm going to shift gears on you here just a During 10 that time, do you recall being asked to assist with escorting a 11 former confidential source to the port of entry in Hidalgo? 12 A Yes, I do. 13 Q Who asked you to assist in that operation? 14 A Roland Gomez. 15 Q And what were you asked to do? 16 A He had asked me earlier I believe that week if I would be 17 available because he had a female confidential informant that he 18 was having come into the office, that she was going to be 19 deactivated. 20 him and her, and he thought by having a female present that it 21 might reduce the chances of any allegations being made. 22 Q 23 Gomez was? 24 A 25 me, he had gone up to Dallas to meet with her with another agent And there had been, I guess, some tension between Do you know what the allegations the source made against I recall that it was -- she -- from what Mr. Gomez had told Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 39 of 344 284 1 from another office, and she was unhappy with the fact that they 2 showed up at her house in the early morning hours and had made 3 an allegation of impropriety, but I don't know specifically what 4 type of impropriety. 5 Q 6 Agent Gomez had approached you earlier that week about his -- 7 helping with the source. 8 week he had approached you where that fact occurred, where the 9 source was brought in? And that's fine. Now, you said that Mr. Gomez had appro -- Did there come a time later in the 10 A Yes. 11 Q Were you present when the source was brought in the office? 12 A Yes, I was. 13 Q What happened during that, when the source was brought in 14 the office? 15 A 16 brought her in; that, you know, their professional relationship, 17 you know, obviously would be unable to continue because she 18 obviously, I guess, had issues with him. 19 guess, she had had some honesty issues as a confidential 20 informant so that he was going to be deactivating her. 21 she -- she became upset. 22 that, I mean, he was going to be deactivating her regardless of 23 her being upset or not. 24 Q And was he going to deactivate her that day? 25 A Yes. She was brought in, and he explained to her that he had And the fact that, I And And, you know, he basically told her Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 40 of 344 285 1 Q And once -- and did he tell her once she was deactivated 2 what was going to happen? 3 A Yes. 4 Q What was going to happen when she was deactivated? 5 A We were going to be escorting her back to Mexico. 6 Q When you say, "We were going to be escorting her back to 7 Mexico," who are you referring to? 8 A Myself and Agent Marco Rodriguez. 9 Q Do you know why Agent Marco Rodriguez was asked to assist 10 with this operation? 11 A 12 having anymore contact than necessary. 13 Q 14 Agent Gomez informed the source, the confidential source that 15 she was going to be deactivated and returned to Mexico? 16 A It was myself, Agent Rodriguez, and Mr. Gomez. 17 Q Did anybody else pop into that meeting while it was 18 happening? 19 A Mr. Warren did. 20 Q Anybody else? 21 A No. 22 Q Now, once the source was informed that she was being 23 deactivated and returned to Mexico, how did you go about 24 transporting her from the office to the border? 25 A Again, just to avoid them having -- the CI and Agent Gomez Who was present during that meeting in the office where Another agent, Agent Flores, he -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 41 of 344 286 1 Q And when you say Agent Flores, who are you referring to? 2 A Eraslio Flores. 3 Q Okay. 4 A He contacted the marshals and asked them if we could use 5 their stairwell. 6 to the back of the building. 7 Rodriguez met us at the back of the building or if he walked 8 down with us and then went and got his vehicle. 9 Q So we took her through the marshal's stairwell And I do not recall if Agent Did Agent Gomez go with you while you were transporting the 10 source? 11 A No, he did not. 12 Q Did Agent Gomez leave the McAllen field office with you and 13 Agent Flores and the source? 14 A No, he did not. 15 Q Did he stay behind in the office? 16 A Yes, he did. 17 Q So when you got the source downstairs and into a car and -- 18 so once you got the source downstairs, what did you do? 19 A 20 was a Dodge Dakota. 21 Q Okay. 22 A She got in the front passenger seat. 23 the second seat, and we drove to the Hidalgo port of entry. 24 Q 25 happened? She got into Agent Rodriguez's -- as a matter of fact, it I got behind her in And once you got to the Hidalgo port of entry, what Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 42 of 344 287 1 A 2 can't believe you're going to send me back to Mexico without any 3 money. 4 If you have an ATM card, we'll stop so you can get money. And Agent Rodriguez told her: I I'm -- I'm not that cold. She said she did, so we stopped at a Stripes store. 5 6 Well, prior to getting there, she had mentioned that: She got money. We went. 7 And as we were going, she said she was excited to 8 go back because she hadn't been back in a while. As we were 9 walking across the street over towards the bridge, she told us 10 that she would be back in a few days, and she wouldn't even have 11 to get wet. 12 Mexico at that point. 13 Q And once you walked her across into Mexico, what did you do? 14 A I contacted Agent Gomez. 15 telephone or email and let her know -- let him know that she had 16 just crossed the bridge into Mexico. 17 Q 18 doc -- memorializing what had just happened? 19 A No, I did not. 20 Q Why not? 21 A Agent Gomez, being the case agent, was going to draft that 22 report. 23 Q 24 part? 25 A She walked across Mexico or walked across into I don't recall if it was by And when you returned to the office, did you draft a report Was it your understanding that he would take care of that Correct. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 43 of 344 288 1 Q Do you know if Agent Marco Rodriguez drafted a report about 2 what happened? 3 A To my knowledge, he did not. 4 Q Did you ever read a report drafted by Agent Gomez 5 documenting what had occurred with you, Agent Rodriguez, and the 6 source? 7 A No, I did not. 8 Q Did he ever provide it to you for review? 9 A No. 10 Q Did you ever see a final version of it? 11 A No. 12 Q After you had transported the source to the port of entry, 13 did you ever have any other contact with that case with that -- 14 with the source? 15 A No, I did not. 16 Q Agent Saenz, are you familiar with the term "case review"? 17 A Yes, I am. 18 Q What does the term "case review" mean to you? 19 A When we sit down with our supervisor and we go over all of 20 our cases one by one, noting what activity has been done since 21 the last case review and what direction or what goals we have 22 for the next quarter. 23 Q And have you ever had a case review? 24 A Yes, I have. 25 Q When was the first time you had a case review? We're supposed to have one every quarter. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 44 of 344 289 1 A A formal case review was when David Green took over as our 2 acting resident agent in charge. 3 Q Do you know when that was? 4 A I believe that was in December of 2011 or thereabouts. MR. EASTEPP: 5 Judge, at this point could I get the 6 limiting instruction read to the jury that we discussed last 7 night about the policy issues? 8 THE COURT: 9 MR. KIDD: 10 THE COURT: 12 (At the bench) MR. KIDD: 13 Judge, we have a copy of it if you would Counsel, let me -- I think it's -- you know what? MR. EASTEPP: 16 MR. KIDD: 17 MR. EASTEPP: 21 22 23 Let's see it. Here we go. Can I see it? Yeah, that's it. You may need to vet the language as you're reading it. THE COURT: 19 20 That might be it. 15 18 I will give it. like. 11 14 I don't have it. here. Don't sit down yet. Is this -- are we going here? MR. EASTEPP: Let me read it right Is that what -- Special agent handling. The policy, I believe, to the agency. MR. KIDD: And, Judge, I would request that we're going 24 to make this just more of a general, a general statement because 25 we got a specific understanding. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 45 of 344 290 1 THE COURT: Why don't y'all edit it. 2 right here if you want to. Just do it. 3 (Discussion off the record between both counsel.) 4 (Attorneys editing the instruction.) 5 THE COURT: 6 MR. EASTEPP: 7 THE COURT: 8 MR. EASTEPP: 9 Are you okay with this, both sides? Uh-huh. Is that a yes? Yes, sir. It's right from the Fifth Circuit. MR. KIDD: 10 11 Do it Yes, Your Honor. (Open court) THE COURT: 12 Ladies and gentlemen, let me give you kind 13 of a general instruction about testimony that we may have 14 already heard a little bit of and may hear here in the next few 15 days. 16 You may hear testimony that Defendant Pedraza may have 17 violated policies derived from the DHS-OIG Special Agent 18 Handbook. 19 offense. 20 crimes charged beyond a reasonable doubt. 21 A violation of DHS-OIG policy is not a criminal The government must prove all of the elements of the For example, even if you assume that Defendant Pedraza 22 violated a DHS-OIG policy, the fact that a policy was not 23 followed does not mean that Mr. Pedraza possessed the requisite 24 criminal intent to commit the offenses charged or that the 25 government has proved the elements of the alleged crimes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 46 of 344 291 If you find beyond a reasonable doubt from the other 1 2 evidence in the case that Defendant Pedraza did commit the acts 3 charged in the indictment, then you may consider the evidence of 4 a violation of policy for the limited purpose of determining 5 whether Pedraza had the state of mind or intent necessary to 6 commit the crimes charged in the indictment. So when we talk about violating a policy, just because you 7 8 violate a policy doesn't mean you committed a criminal act. 9 That's the point of what we're trying to make clear. Okay. 10 Go ahead. 11 BY MR. KIDD 12 Q 13 that the first case review, your formal case review you had 14 received is in December of 2011; is that correct? 15 A Correct. 16 Q And that you had received that case review with your new 17 supervisor David Green? 18 A Yes. 19 Q Can you explain what that super -- what that case review 20 consisted of? 21 A 22 Garcia case, we went over that one. 23 had a case review before. 24 this. 25 Q Agent Saenz, I believe when we stopped, you had just said It consisted of he -- I know this case, Garcia, Daniel He asked me if I had ever I told him never a sit down like And -- What was his response to that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 47 of 344 292 1 A He just -- I mean, a little shocked, I guess, but he didn't 2 say -- didn't say anything. 3 here on out once a quarter, we're going to be having case 4 reviews." 5 Q Okay. 6 A I said okay. 7 file and asked me if I had ever seen it before, and I told him 8 no. 9 I had done on the case; you know, what goals I had for the next "Well, get used to it, because from He showed me a case review worksheet in that Then we proceeded to go on with that case review as to what 10 quarter. 11 Q 12 supervisor, David Green, did he document that case review? 13 A Yes, he did. 14 Q I'm going to go ahead and show you a document that's coming. 15 This is from Government's Exhibit 9. And during that -- during that case review, did your new Agent Saenz, do you recognize this document? 16 17 A Yes, I do. 18 Q What is this document? 19 A That's the case review worksheet completed by Mr. Green. 20 Q Pointing out the initials over here on the left-hand side. 21 Whose initials are those? 22 A Mr. Green's. 23 Q Pointing out the date. 24 document? 25 A 12/8/11. What date is listed on this Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 48 of 344 293 1 Q Is this the case review that you were just telling the jury 2 about? 3 A Yes. 4 Q I'm going to show you another document from Government's 5 Exhibit 9. 6 A That's also a case review worksheet. 7 Q Whose initials are over here on the left-hand side? 8 A The defendant's. 9 Q Just pointing to the first date up in the left-hand side, Can you identify this document? 10 can you see what date that is? 11 A 5/4/10. 12 Q Do you recall having a case review on the Garcia matter with 13 Defendant on 5/4/2010? 14 A 15 So, no, that would not have been with me. 16 Q So that could have been with Agent Garcia, though? 17 A Correct. 18 Q Pointing to the second date. 19 A 10/29/10. 20 Q Do you recall having a case review with Defendant on that 21 date? 22 A That was prior to the case being assigned to me. 23 Q And that would be correct of the next day too, correct? 24 A Correct. 25 Q Now, looking at the final date, what is that? That would have been prior to my employment with DHS-OIG. What's the date there? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 49 of 344 294 1 A 9/2/11. 2 Q Do you recall having a case review with the defendant on 3 September 2nd, 2011, on the Garcia matter? 4 A No, I do not. 5 Q And is that what you had explained to David Green during 6 your case review? 7 A Yes. MR. KIDD: 8 9 May the Court -- Judge, if I may, just one moment? No further questions at this time, Your Honor. 10 11 THE COURT: Mr. Eastepp? 12 MR. EASTEPP: Thank you, Judge. CROSS-EXAMINATION 13 14 BY MR. EASTEPP 15 Q 16 Eastepp, and I represent Mr. Pedraza. 17 A Good morning. 18 Q I don't think we ever met -- 19 A No, sir. 20 Q -- before I left the Department of Justice. 21 A No, sir. 22 Q When did you start? 23 A In October of 2010. 24 Q Okay. 25 obviously you and I didn't met -- didn't meet. Hi, Ms. Saenz. I mean Special Agent Saenz. I'm Larry I would have been around a little back then, but Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 50 of 344 295 Let me go back to that sheet quickly that Mr. Kidd had on, 1 2 which was the last one. 3 A Okay. 4 Q Which is this September the 2nd. 5 A I can. 6 "Investigation slowing down. 7 Q 8 conversation in the reception area with Special Agent Pedraza 9 about this case and the progress on it which is what led to that "Still working leads." And can you read that? Looks like the bottom -- Still working leads." If I heard your earlier testimony correctly, you had had a 10 memo getting -- that you wrote, correct? 11 A Correct. 12 Q So just because he didn't bring you into his office and put 13 you in a chair in front of him and say: 14 case review on what I just talked to you about in the hallway, 15 when he wrote on September the 2nd, "Still pursuing leads," 16 that's an accurate statement to what y'all had discussed in the 17 reception area; isn't that correct? 18 A The date is not correct, sir. 19 Q But what would have been incorrect about the date? 20 A The date that I have was probably in late August. 21 Q So late August would be two days before this, August 31st? 22 A It was probably around August 26th when he sent me the last 23 email. 24 Q 25 conversation you've had in the hallway and just because he We had a conversation. Okay. I want to do a So if he updated it on 9/2 from his own memory of the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 51 of 344 296 1 didn't bring you and sit you in a chair, this would have been an 2 incorrect entry? 3 correct, still pursuing leads? 4 A I was -MR. KIDD: 5 6 That's what you were doing in the case, Objection, Your Honor. He's asking multiple questions. THE COURT: 7 Overruled. 8 BY MR. EASTEPP: 9 Q Still pursuing leads? 10 A I was still pursuing leads, yes. 11 Q Okay. 12 A Yes, that statement is accurate. 13 Q And it is accurate to a conversation you had had with him 14 from your memory on August 26th? 15 A Correct. 16 Q Okay. 17 going over the use of reports in the courtroom, you noted a 18 situation when you were a Border Patrol agent where you had to 19 testify. 20 A Correct. 21 Q Correct? 22 A Yes. 23 Q Am I right about that? 24 A Yes. 25 Q Does that mean you've never testified as an OIG agent? So other than the date, the rest of that is accurate? Now, you testified, if I heard correct when you were Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 52 of 344 297 1 A Correct, not before this. 2 Q Okay. 3 I mean. 4 A Correct. 5 Q Right. 6 A I've grand juried and that's it. 7 Q And how long have you been an agent? 8 A It was three years last October. 9 Q So if the agent who's sitting in front of me today has not Right. But on a case you worked up is obviously what Have you ever had one come to fruition? 10 had a case make it to the courtroom, the one that we're talking 11 about as an experience level back in 2011 was still pretty 12 green. 13 A Yes, sir, that would be. 14 Q Meaning you did need some supervision and overseeing by 15 Special Agent Warren, Special Agent Pedraza? 16 A Correct. 17 Q And of those two, no doubt that Special Agent Warren is the 18 one with the more experience as to how -- investigative methods 19 and cases and how to do street work, to call it? 20 A I wouldn't know who was more experienced. 21 Q Okay. 22 two of them? 23 A 24 far as how many years of experience versus -- one versus the 25 other, I don't know. Would that be a correct statement? You never formed that impression from talking to the That's the impression Mr. Warren gives you, yes, but I -- as Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 53 of 344 298 1 Q When you were hired as a GS11, what had you applied for? 2 A I had applied for a GS -- I believe it was a GS-12 position. 3 Q And you got hired as a GS-11? 4 A 12. 5 Q You got hired as a 12? 6 A Yes, sir. 7 Q Okay. 8 A No. 9 want to bring me on as a 12. I thought you told Mr. Kidd you were hired as an 11. He told me I was not 12 material. That's why he didn't 10 Q But he did? 11 A Yes. 12 Q Have you ever heard of just a smart aleck remark? 13 A Yes, I have. 14 Q When you went to Alpine on TDY -- 15 A Yes. 16 Q -- there was a reason you went to Alpine on TDY, correct? 17 A Correct. 18 Q And who arranged for you to go to Alpine on TDY? 19 A James Beauchamp. 20 Q And what was the circumstances that caused that? 21 A We had a single agent in that office who had been dealing 22 with a sick father. 23 he was getting a little bit behind, so I went over there to help 24 him out, try to get his cases up to speed. 25 Q And prior to that, I guess his case work, Was there an occasion when you had a death in your family Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 54 of 344 299 1 and Special Agent Pedraza helped you take some time off so you 2 could deal with that? 3 A 4 leave so I could go to the funeral for my father in New Mexico, 5 yes. 6 Q 7 situation? 8 A I don't think there was anything to cover. 9 Q Because you didn't have cases really going anywhere? 10 A Correct. 11 Q This situation -- well, first as to MOAs. 12 A Uh-huh. 13 Q When you signed an MOA, what date did you use? 14 A That varied. 15 Q Okay. 16 A When I first came on, it was -- we were told by -- I 17 remember asking Ms. Hinojosa, agents around the office, 18 everybody was like: 19 couple of days of the date of activity or, you know, week or 20 whatever, not too far apart. 21 He didn't help me take time. He allowed me to take annual And helped get people to cover for you and deal with the Okay. Just write it. Make sure it's within a But then when we wouldn't get our reports back, I 22 started to kind of get concerned that again, I was going to get 23 questioned somewhere down the road why there was a report 24 written in January, and it wasn't getting dated until July that 25 we got it back, so I started to type my dates of when I had Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 55 of 344 300 1 written the report in the signature block. Today we date them the day we sign them. 2 3 Q And so if you got one back, you had a typed date and you got 4 it back later, did you change the date? 5 A No, I left the date that I typed the report. 6 Q Would you also type in the supervisory name, like William J. 7 Warren -- 8 A Yes. 9 Q -- assistant special agent in charge? 10 A Yes. 11 Q And did you always endeavor to do your reports accurately? 12 A Yes, I did. 13 Q Do you remember post the inspection, after the inspection 14 there was a realignment where Kirk Beauchamp became in Houston 15 the regional special agent in charge? 16 A Yes, I do. 17 Q Do you recall the change in the title of Mr. Pedraza? 18 A Yes. 19 Q What did his title change to? 20 A Associate special agent in charge. 21 Q And do you remember roughly when that would have been? 22 A I'm going to say maybe around November of 2011 possibly. 23 don't recall exactly. 24 Q 25 employment had been special agent in charge? Okay. Do you recall that? And clearly before that, his title during your I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 56 of 344 301 1 A Correct. 2 Q In Government's Exhibit No. 9, the consecutive pages 27069 3 through 074 you were showed. 4 Daniel Garcia file. 5 A Okay. 6 Q -- that Mr. Kidd showed you just so you know as I go through 7 these. 8 clear for the record. 9 that's -- that's the case we're talking about? These are the attachments to the They're out of the blue file -- And I'll be reading their Bates number so that it's It's 27069. Do you recognize that 10 A Yes. 11 Q Okay. 12 A Yes. 13 Q And as you're talking about it, you would have written the 14 date December 15th, 2011? 15 A Yes. 16 Q Typed that in? 17 A Yes. 18 Q And over to the side, you see you've got -- it's 19 Mr. Pedraza's name as associate special agent in charge, but the 20 signature is clearly Dave Green's, correct? 21 A Correct. 22 Q And it's dated in December, right? 23 A Correct. 24 Q Clearly after Special Agent Green had come down there and 25 was at that point kind of the acting supervisor, correct? And at the bottom, that's your signature? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 57 of 344 302 1 A Correct. 2 Q Now, the next page in your -- in that case file with the 3 Bates stamp ending in 70, you recognize it from the top that 4 it's the same case we're talking about? 5 A Yes, sir. 6 Q And this memorializes that you did some surveillance on 7 September 23rd, correct? 8 A Yes, correct. 9 Q And you recall doing this? 10 A Yes, I do. 11 Q And at the bottom, again your own signature. 12 September 29th, 2011, and Mr. Pedraza actually signed this one, 13 correct? 14 A Correct. 15 Q And he's the associate special agent in charge and signed it 16 on November the 1st, correct? 17 A Correct. 18 Q Do you know why he would have -- it would have reached him a 19 little later? 20 A 21 had -- the final report had been approved and we had not 22 received all our reports back from Mr. Warren, Mr. Pedraza would 23 ask us just to send them to him, and he would sign them. 24 Q 25 that you got that back about November from him as it shows his You typed in Do you have any idea? Oftentimes if we were getting ready to close a file, it So clearly -- I mean, do you have any independent knowledge Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 58 of 344 303 1 signature on here? 2 A I do not recall when I got it back, no, sir. 3 Q Now, the next page, which is page 71, again, you recognize 4 it's the same case we're talking about. 5 A Yes. 6 Q That shows some activity on September the 8th. 7 something called EPIC, which is a government database, correct? 8 A Yes. 9 Q And I assume you queried it and had gotten a report back? 10 A Correct. 11 Q And that's pretty common in this kind of investigation. 12 You're looking at assets, correct? 13 A Yes. 14 Q Some federal employee making $30,000 a year living in a 15 $500,000 house might be suspicious. 16 A Correct. 17 Q So that's the reason these databases are queried, correct? 18 A Yes. 19 Q So you've done that? 20 A Yes. 21 Q Which is a typical special agent job? 22 A Yes. 23 Q And then you've summarized after that, you agree, what EPIC 24 has shown you. 25 for this particular person, correct? There's You've also queried that there's some passports Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 59 of 344 304 1 A Correct. 2 Q Again, a very common investigative thing to see if somebody 3 is leaving the country to meet in Mexico, for example, with bad 4 guys. 5 A Correct. 6 Q So that you know when he's crossing the border, correct? 7 A Correct. 8 Q Pretty common thing. 9 person had six crossings, correct? And you, in fact, talk about this 10 A Correct. 11 Q All right. 12 typed in September 12th, 2011. 13 when the inspection was? 14 A It was mid September. 15 Q Okay. 16 one of the days, would you dispute that? 17 A Not if it's in evidence, no, sir. 18 Q Okay. 19 over here. 20 over the whole block? 21 A Uh-huh. 22 Q Who is that? 23 A Wayne Ball. 24 Q Okay. 25 A Eugenio Pedraza. Now, let's look at this signature. Again, you What was -- and do you recall I don't recall the dates. If a record is in evidence that it's -- the 12th is So you've typed in September the 12th. Now, look Do you recognize first the signature that's kind of And you typed in what name? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 60 of 344 305 1 Q And what did you type his title as? 2 A Associate special agent in charge. 3 Q On September the 12th of 2011, what was his title? 4 A It should have been special agent in charge. 5 Q And, in fact, his associate title didn't come into being 6 until, as you testified, into November. 7 A I believe so. 8 Q You're not psychic, right? 9 A No, sir, I'm not. 10 Q All right. 11 A That was an error. 12 Q You agree with me this had to have been typed after the date 13 that you have on here. 14 A 15 to the time of when the activities took place, either dating 16 them or typing in those dates. 17 a template. 18 then just fill in my narrative part. 19 Q 20 be accurate when -- 21 A Correct. 22 Q -- you're testifying. 23 testifying and you're looking at this document, when this 24 document was prepared? 25 A Correct. Like I say, at -- we were typing the dates close And oftentimes I would just use I would pull up an MOA that I had already typed and You testified to Mr. Kidd that the point of all this is to Can you tell me today, you're September 12th is what I would have to tell you based on Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 61 of 344 306 1 what I've typed there. 2 Q 3 in charge" because that title didn't exist. 4 A 5 possibly since I had used this as a template that I didn't -- I 6 had used this MOA afterwards and just pulled it up at some point 7 and didn't change that. 8 Q Is there a chance it's simply just a mistake? 9 A Yes, sir, absolutely. 10 Q And don't mistakes sometimes happen? 11 A Yes, they do. 12 Q Were you trying to mislead anybody here, or is it a mistake? 13 A No, sir, I was not trying to mislead anybody. 14 Q Why would Wayne Ball have signed? 15 A Because he was the lead criminal investigator at that point. 16 Q Were you and Wayne Ball trying to fool somebody when you 17 signed this? 18 A No, sir, we were not. 19 Q Because it's uploaded into an official government file, 20 correct? 21 A Correct. 22 Q Look at the next page, Bates 72. 23 A Yes. 24 Q And this one again is just a surveillance noting, correct? 25 A Correct. But again, you couldn't have typed "associate special agent Correct, sir. I would change the date. I overlooked Again, recognize the case? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 62 of 344 307 1 Q If we look, you've typed in September the 6th, correct? 2 A Correct. 3 Q And signed it. 4 Jody Warren's name as assistant special agent in charge, but who 5 signed this one? 6 A The defendant did. 7 Q Okay. 8 A Mr. Pedraza. 9 Q And what day did he sign this one? 10 A 9/12/11. 11 Q Which is the same date on the one I just showed you Wayne 12 Ball signed. 13 A Uh-huh. 14 Q So appears he was -- and we know it's inspection. 15 around, correct? 16 A Correct. 17 Q The next one, that's Bates 73 out of this. 18 it? 19 A Yes. 20 Q Again, it's a surveillance from August the 2nd? 21 A Uh-huh, yes, sir. 22 Q Shows you apparently typed it just three days later, 23 correct? 24 A Yes. 25 Q On the 5th of 2011. If you look at the other side, you've typed Could you say his name, please? He was You recognize And this one, whose signature is that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 63 of 344 308 1 A Mr. Warren's signature. 2 Q So this one you prepared for him, and he signed it a few 3 weeks later on the 30th. 4 A Correct. 5 Q Before the inspection. 6 A Correct. 7 Q Is that an example of one of the gaps we talked about, 8 things would be sent to him and take a while to get back? 9 A Correct. 10 Q How would you get it back once a supervisor had signed it? 11 A They would email it back. 12 Q But in PDF form signed? 13 A No. 14 attachment, they would tell you either make corrections or it 15 was good to go. 16 take it to them, and they would sign it. 17 Q 18 told you it's final form post editing, final, ready to go, you 19 print, you sign. 20 A 21 column, I don't know, open cabinet, I guess, that has slats, and 22 everybody has a name -- has their name on one of them, and 23 that's your mailbox essentially. 24 Q 25 before a supervisor would have signed them? Yes, sir. I'm talking about -- Once they would send it back to you just regular as an You'd print it, sign it, put it in their box or Tell me about this box thing, putting -- you print. They Where is this box? It's in our distribution room. There's -- it's like a two And do you know how long they would have sat in that box Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 64 of 344 309 1 A It would just depend. You know, if they were there in the 2 office that day and so happened to go by there, they'd sign 3 them. 4 Q Would you get a copy back? 5 A Usually you did, yes. 6 Q Would there be times you didn't get a copy back? 7 A Yes, there were times. 8 Q And the original would have gone into this file room into 9 these blue files like you've been shown? 10 A Correct. 11 Q You actually on all your cases keep a different file than 12 the blue file in your office, correct? 13 A Correct. 14 Q And what is that? 15 A That's our working file. 16 Q And what's in that working file? 17 A Essentially the same thing that's in the blue file. 18 just -- usually copies or research that you've done, copies of 19 the MOAs. 20 Q 21 printout -- 22 A Uh-huh. 23 Q -- which is the financial. 24 emailed, however it comes in this day and age. 25 example of something that would go into your working file until It It for the most part mirrors your case file. So, for example, the one I showed you about the EPIC You get that mailed to you or Would that be an Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 65 of 344 310 1 you've memorialized it? Let's say you got it Friday at 5:00 and 2 you're going to go on vacation for a week. 3 your file. 4 "I received an EPIC report." 5 A Yes. 6 Q And this file getting transferred around happened fairly 7 often, correct? 8 last name of Garcia. 9 A You'd leave that in When you come back from vacation, do an MOA saying, Would that be -- Like Camillo Garcia had this file also with the It happened one time in particular because we had -- he 10 had -- Mr. Pedraza had decided to, I guess, zone the cases, so 11 certain areas were assigned to certain people, and that's why 12 this particular case was transferred to me, I believe. 13 Q 14 file that an agent had done something like an EPIC report but 15 had not memorialized it and then it's come to you, and that 16 needs to be memorialized so that it can go into the file? 17 A Typically -- 18 Q Meaning work had been done but not memorialized. 19 A No. 20 work has already been in there. 21 Q On the ones you've received? 22 A Yes, sir. 23 Q Were you around when the Operation Lone Star and the TDY 24 agents were coming down and working on cases? 25 A Have you, before or since, ever seen where you get a working The cases for the most part that I received, the case I believe that was -- I didn't know it was called that. But Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 66 of 344 311 1 I know when I -- when I first started, I believe two agents from 2 Laredo had come down for a week at a time. 3 was it. 4 Q 5 that needed to be memorialized? 6 A I don't know. 7 Q I'm sorry, I kind of got off on that, but there's one last 8 page. 9 This one says you queried TECS. And after that, that So if they worked for a week, they left, there might be work Is that your experience? I didn't get any of those cases, sir. It's Bates 74 from the Garcia file. Do you recognize it? What is TECS? The jury has not 10 heard about that yet, T-E-C-S. 11 A 12 System. 13 you cross into Mexico, come back, if you were secondaried, if -- 14 federal law enforcement agencies put lookouts on individuals 15 that are suspected of being involved in any type of criminal 16 activity, that type of thing. 17 Q Border checks -- 18 A Correct. 19 Q -- for the comings and goings. 20 memorial -- again, this is a very common thing that agents down 21 here would be checking to see people leaving the country -- 22 A Correct. 23 Q -- right? 24 situation, correct? 25 A It used to be referred to as the Enforcement Communication It's a system used by Customs that documents any time Correct. Okay. And that's what you Just as we talked about with the passport Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 67 of 344 312 1 Q All right. And again, we go to the bottom. 2 your signature, correct? 3 A Correct. 4 Q Typed in July 29th, 2011? 5 A Correct. 6 Q What title did you type first? 7 A Eugenio Pedraza, associate special agent in charge. 8 Q And who signed this one? 9 A Wayne Ball. 10 Q And clearly, as we've already gone over, July 29th of 2011, 11 Gene Pedraza was still the special agent in charge. 12 A Correct. 13 Q Which tells us that this document had to have been prepared 14 sometime Novemberish, correct, of 2011? 15 A 16 exactly. 17 Q 18 November the title was going to change if it was typed in July. I would have to look, sir. You recognize I'm not -- I couldn't tell you Well, again, you're not psychic, so you didn't know that in 19 MR. KIDD: 20 THE COURT: Objection, Your Honor. That's argumentative. Sustained. 21 BY MR. EASTEPP 22 Q 23 charge, correct? 24 A Correct. 25 Q So you have to agree with me that if this title didn't come In July you only knew his title to be a special agent in Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 68 of 344 313 1 into being until November, when is the most likely time period 2 this was prepared logically? 3 A Prior to. 4 Q Prior to? 5 A Or, I'm sorry, after. 6 Q After -- 7 A Yes. 8 Q -- he became the associate special agent in charge. 9 mistakes can be made, Special Agent Saenz, correct? Again, 10 A Correct. 11 Q And you agree with me, this one is a mistake? 12 A Yes, sir. 13 Q Special Agent Marco Rodriguez. 14 for -- you worked with him at the agency for a while after you 15 started, correct? 16 A Correct. 17 Q Was he someone you looked up to? 18 A Yes, sir. 19 Q And why did you look up to him? 20 A Because he was experienced in investigations. 21 player. 22 help anybody in the office. 23 Q Would you disagree if he's been called a hard charger? 24 A I would not disagree. 25 Q Did he -- did you consult with him at times on I would have to say it was a mistake. You've worked with him He was a team He was somebody who was always willing and ready to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 69 of 344 314 1 investigations? 2 A Yes, I did. 3 Q And why did you consult with him? 4 A Again, because he had a lot of experience, especially in 5 investigations, and he was always willing to help you out. 6 Q 7 of the agency when you went to him with questions? 8 A Yes. 9 Q And was he able to accurately advise you as to policies and And did he seem to you to know the policies and procedures 10 procedures and how to do things? 11 A I believe so, yes. 12 Q What's -- what's an example of when you would go to him with 13 a question? 14 A 15 is the typical process when you get a new complaint? You know, 16 what type of checks do you guys normally start with? And he 17 told me, you know, CLEAR checks, driver's license, TECS, that 18 sort of thing. 19 Q Various data bases like we talked about with EPIC? 20 A Yes. 21 Can you remember one? I know when I first started, just asking him, you know, what MR. EASTEPP: Judge, I noticed that you leaned up. 22 that a sign that we might be taking a break? 23 point I could break to. 24 THE COURT: No, I'm fine. 25 MR. EASTEPP: Okay. Because this is a Keep going. Yes, sir. Was Sorry. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 70 of 344 315 1 THE COURT: Again, I have to shift around. 2 MR. EASTEPP: Misunderstood the stretching, Judge. 3 BY MR. EASTEPP 4 Q 5 Agent Rodriguez, Marco Rodriguez and Gene Pedraza? 6 A Yes, I did. 7 Q And what kind of relationship did you observe? 8 A A very tense relationship. 9 Q And can you further explain what you mean by tense? MR. KIDD: 10 11 Did you observe over time the relationship between Special Objection, Your Honor. This is well outside the scope of direct examination. 12 THE COURT: Overruled. 13 THE WITNESS: I'm sorry. Can you repeat the question? 14 BY MR. EASTEPP 15 Q 16 observed? 17 A 18 Mr. Rodriguez, and the feeling was mutual. 19 Q 20 was mutual? 21 that impression? 22 A That they did not -- 23 Q That Marco Rodriguez didn't care for him. 24 A Oh, it was -- I mean, he -- he made it clear that he 25 respected the position but not the man because he, in his Can you tell us what you mean by tense as to what you It was clear that Mr. Pedraza did not care for And how do you know from the Marco Rodriguez side that it Without getting into what he said, how did you form Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 71 of 344 316 1 opinion, didn't know -- he was not a good manager. 2 know his job very well. 3 Q 4 golf buddies or fishing buddies or watching Dallas Cowboy 5 football Sunday buddies or anything like that? 6 A No. 7 Q Would they do anything like that in your wildest 8 imagination? 9 A No, sir. 10 Q You're aware Marco Rodriguez is a co-conspirator in this 11 case with Gene Pedraza? Okay. He didn't Did you know the two of them to be lunch buddies or 12 MR. KIDD: 13 THE COURT: Objection, Your Honor. Sustained. 14 BY MR. EASTEPP 15 Q 16 doors shut or anything that you observed that you thought was 17 inappropriate or improper? Did you ever see the two of them in secret meetings with 18 MR. KIDD: Objection, Your Honor. 19 THE COURT: 20 THE WITNESS: Overruled. No. 21 BY MR. EASTEPP 22 Q 23 seem intimidated by the other? 24 A I believe Mr. Pedraza was intimidated by Mr. Rodriguez, yes. 25 Q And was that -- all of this, did you observe this over a In fact, did -- of the two of them, as you observed, did one Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 72 of 344 317 1 long period of time, at least from the time you started -- 2 during the time period we're talking about for purposes of this 3 case? 4 A Yes. 5 Q And it never changed? 6 A Never changed. 7 Q Do you recall ever seeing them like go to lunch together 8 outside of the whole office? MR. KIDD: 9 10 Objection, Your Honor. This is asked and answered. 11 THE COURT: Overruled. 12 MR. EASTEPP: I'll move on, Judge. 13 BY MR. EASTEPP 14 Q 15 know anything about her or her background before this meeting? 16 A 17 that's all I knew really about her. 18 Q 19 professional source? 20 A Not professional source, no, sir. 21 Q So did you know anything about how long she had been a 22 source or any of that sort of stuff? 23 A No. 24 Q You had a fairly limited role then that morning. 25 A Correct. This situation with Roland Gomez with the source, did you I knew she was illegally present in the United States, but Since you've been an agent, have you heard the term Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 73 of 344 318 1 Q That's not uncommon, whether we're talking an arrest or an 2 interview, particularly if the interview might be 3 confrontational or a situation like this about deactivating a 4 source, that a -- when it's a female interviewee, you're going 5 to have a female agent there. 6 A Correct. 7 Q Probably every federal agency does that, right? 8 A Yes. 9 Q Just smart protocol. 10 A I agree. 11 Q So that was pretty much your role that morning, not only 12 there as a special agent, but you're there because you're a 13 woman special agent. 14 A Correct. 15 Q And there are -- when the source is brought into the 16 interview room at the McAllen office, there's three agents in 17 there, correct? 18 A Correct. 19 Q You, of course, Roland Gomez, and Marco Rodriguez. 20 A Correct. 21 Q And there was a point in time that Assistant Special Agent 22 in Charge Warren came in, correct? 23 A Yes. 24 Q He's a big guy, right? 25 A Yes, he is tall. You would agree with that? He's bigger than I am. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 74 of 344 319 1 Q And he kind of made a show when he came in there, correct? 2 A Correct. 3 Q Raising his voice, talking to her, threatening to arrest 4 her, that sort of thing? 5 A Yes. 6 Q Do you recall all that? 7 A Yes. 8 Q Dumping her purse out on the table. 9 A I don't remember if he dumped her purse out. Do you remember that? I know I 10 searched it, but I don't believe -- I don't recall if he did 11 dump it out or not. 12 Q 13 whether she drove or where her car and her car keys were? 14 A Yes, I do remember that. 15 Q There was an issue about that? 16 A Yes. 17 Q Did you ever see that morning Gene Pedraza walk in there? 18 A No, I did not. 19 Q Did you even know if he was in the office? 20 A Yes, he was in his office. 21 Q Okay. 22 A Yes. 23 Q Okay. 24 Agent Warren came in and deals with her, how long did that last? 25 A Do you remember an issue about whether she was lying about Where he would be most any day? How long did this confrontation that -- when Special I would say it was probably no more than five minutes, ten Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 75 of 344 320 1 minutes tops. 2 Q And she, in fact, had keys secreted on her, correct? 3 A I don't remember where her keys were. 4 Q They were found at some point. 5 A Yes. 6 Q And two of the agents left the room, Special Agent Warren, 7 Marco Rodriguez, correct? 8 A 9 Mr. Gomez also left or Mr. Rodriguez left. I -- I know Mr. Warren did leave, but I don't remember if I don't remember. 10 Q Do you remember if a second agent left with Special Agent 11 Warren? 12 A I believe so, yes. 13 Q So one of the men left. 14 A Yes. 15 Q You stayed? 16 A I stayed. 17 Q For the same reasons we've already gone over. 18 A Correct. 19 Q And were you aware it was reported her car was, in fact, 20 found? 21 A Yes. 22 Q So she had not been truthful that morning. 23 A Correct. 24 Q And were you aware that she had made some pretty serious 25 allegations against Special Agent Gomez? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 76 of 344 321 1 A Like I say, I knew it was something about impropriety, but I 2 didn't know the details of it. 3 Q Have you learned them since, or you still do not know? 4 A I still don't know. 5 about them showing up early at her house. 6 believe, in her pajamas, but that's all I know. 7 Q And that was in the Dallas area. 8 A Correct. 9 Q And were you aware that she kind of had bonded with a Dallas I just know that she was not happy And she was, I 10 agent? Did you know about that? 11 A No. 12 Q You're talking about that she reported about Roland Gomez -- 13 A The impropriety, yes, sir. 14 Q -- in Dallas that kind of kicked this whole thing off, 15 correct? 16 A Kicked what off, sir? 17 Q Getting her down to McAllen to get her decertified and out 18 of the country. 19 A 20 other issues and then that was, you know, kind of rolled up into 21 it. 22 Q 23 that y'all left and took her to the -- to the border? 24 A 25 to an hour maybe at the most. I know she reported her allegation to a Dallas agent. I don't know if that was the catalyst for it or if it was That particular day, how long after the car situation was it It wasn't long after. I would say maybe within half an hour I don't know. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 77 of 344 322 1 Q And do you know who made the decision as to who the two 2 escorting agents were going to be? 3 A 4 appeared that it had already been decided before we even got 5 started. 6 Q Meaning that it was not going to be Roland Gomez? 7 A Correct. 8 Q And why was that? 9 A Again, to avoid them having any further contact with each No, I don't know who made that decision. It was -- it 10 other to not make the situation worse. 11 Q 12 Pedraza ever come in and join this situation and then have 13 conversations with y'all about it? 14 A No, he did not. 15 Q On your way out to go to the border, did you -- did y'all 16 stop by and brief him in any fashion -- 17 A No. 18 Q -- in your presence? 19 A No, I did not. 20 Q Was the only supervisor you saw around that morning Jody 21 Warren that was physically present with this source and knew the 22 situation firsthand? 23 A Yes. 24 Q This situation of after you drop her at the border and you 25 come back and you brief Special Agent Gomez, however you briefed At any point after you became aware of that, did Gene Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 78 of 344 323 1 him, by email or phone call, however that worked, the fact that 2 you didn't write a report or that Marco Rodriguez did not write 3 a report, that's fairly common, right? 4 agent. 5 A Correct. 6 Q Special Agent Gomez. 7 exercise was simply to decertify her, to get her out of the 8 country? 9 A Roland is the case And was your understanding this whole Yes, that her -- she was no longer going to be a 10 confidential informant. She was no longer either upholding the 11 conditions as a CI or not producing information to justify 12 having her as a CI, and so he was decertifying her. 13 Q 14 morning. 15 her and get her out of the country and off the books as an 16 informant. 17 A Correct. 18 Q All right. 19 Garcia file with this conversation with Gene Pedraza, y'all had 20 been told -- the whole office knew this inspection was coming. 21 That wasn't a secret, right? 22 A Right. 23 Q And this thing of getting files in order, that wasn't a 24 secret, right? 25 A So y'all weren't conducting a criminal investigation that This was all about an internal procedure to decertify Right. That was my understanding. Before the inspection, the situation about this Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 79 of 344 324 1 Q Did you notice that both Ms. Hinojosa, the administrative 2 officer, and Special Agent Pedraza were fairly busy in the days 3 leading up to the inspection getting all the stuff ready for the 4 people to come in? 5 A Yes. 6 Q Because beyond looking at case files, did you know they're 7 looking at the evidence room and the grand jury locker and 8 firearms and your body armor and all the other inventory of the 9 agency? Do you understand that? 10 A Yes. 11 Q Pretty big process, right? 12 A Yes. 13 Q Did Gene Pedraza seem to be kind of, you know, frazzled? 14 Trying to look for the right word. 15 A Yes. 16 Q By all this process going on? 17 A Yes. 18 Q So when he sees you in the hallway or the reception area and 19 he has this conversation, you describe him, though, that he was 20 fairly calm in the conversation? 21 A Yes. 22 Q And when you simply tell him that: 23 case from Camillo and there's nothing in it. 24 report, did he holler at you? 25 A No. Hey, remember I got this I'll write a Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 80 of 344 325 1 Q Seem to indicate that that was fine with him? 2 A Yes. 3 Q How in the world have you ever formed in your mind that he 4 was asking you to do anything improper if all that was was he 5 asked you a question, you gave him an answer, and he said fine? 6 A 7 gap. 8 that I'll write to document when I got the case, but I don't 9 know what happened prior to that. Because he still said again: We still need to bridge this And that's when I repeated to him: I have this report 10 Q And he -- and you testified earlier that he also said he 11 would check with Camillo Garcia. 12 A After I told him that a second time, yes. 13 Q Because as we just discussed a few minutes ago, if there 14 were TECS reports or an EPIC report or something that Special 15 Agent Garcia had run outside of your knowledge, Gene Pedraza 16 could ask him: 17 gap. 18 A Yes. 19 Q But having -- he's told you to go have the conversation with 20 Camillo Garcia. 21 trying to follow-up to get the real records is what that sounds 22 like. 23 A 24 already told him once before. 25 Q Hey, memorialize that, and that will fill this That's a pretty logical thing, is it not? If those checks were run, yes. He's not asking you to do anything false. He's We had already had this conversation previously, and I had That? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 81 of 344 326 1 A That there was nothing in the file; that I had just had the 2 file since June. 3 Q 4 Garcia had done something that you did not know about. 5 a possibility that occurred, correct? 6 A 7 gotten everything with it? 8 Q 9 misfiled? But that still is not the situation of whether Camillo Correct, but I had gotten the file. He didn't give it to you? There's Why wouldn't I have He made a mistake? It was Kind of like you've had wrong dates put on those 10 MOAs. Sometimes mistakes are made? 11 A Perhaps. 12 Q But you've interpreted this that Gene Pedraza was asking you 13 to commit a crime; is that right? 14 A Yes, that was my impression. 15 Q And this is a special agent in charge of a federal agency. 16 Do you think he got that because his uncle is a U.S. senator or 17 something? 18 MR. KIDD: 19 THE COURT: Objection, Your Honor. Sustained. 20 BY MR. EASTEPP 21 Q 22 that? 23 A No, sir. 24 Q Did you report this to anybody? 25 A No, not -- Had he ever asked you to do anything else improper like Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 82 of 344 327 1 Q Did you arrest him? 2 A No. 3 Q You had full power to arrest him if you thought he was 4 committing a felony offense under Title 18, did you not? 5 A Yes. 6 Q And you didn't do a thing about it, did you? 7 A No, I didn't. 8 Q Did you report it to anybody? 9 Rodriguez? Did you go tell Marco 10 A No. 11 Q Didn't tell anybody about it? 12 A We discussed it in the office after that when other people 13 had mentioned that he had had -- asked -- had the same -- 14 similar conversations with them. 15 he asked me to do the same thing. 16 Q 17 lined up to tell as much bad stuff as you could about Gene 18 Pedraza because you were trying to get him fired, correct? 19 A No, sir. 20 Q Trying to get him fired. 21 A No. 22 Q You would have been thrilled if that inspection determined 23 that he got fired, right? 24 A No, sir. 25 Q Because do you remember when -- you weren't around when Right. That's when it was like, well, And this was during the inspection when all of y'all We were just telling the truth. We just wanted the truth. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 83 of 344 328 1 Frost came, were you? 2 A No, I was not. 3 Q Okay. 4 that all together? 5 A After Frost came down to the office? 6 Q Right, after the inspection. 7 believe he's still not fired; Gene Pedraza is not fired? MR. KIDD: 8 9 Everybody going: Objection, Your Honor. I can't This is going well outside the scope of what we're here to decide. THE COURT: 10 11 Did you know about the agents going and meeting after I'm going to let her answer this question, but then we're going on to a different topic, Mr. Eastepp. THE WITNESS: 12 I know several of the agents did meet. I 13 don't know if it was prior to Mr. Frost coming or afterwards. 14 BY MR. EASTEPP: 15 Q 16 y'all -- you started telling this story about he's trying to get 17 you to commit a crime; is that correct? 18 until then? 19 A I didn't tell the inspectors, no. 20 Q And you never told anybody until all of this -- after the 21 inspection and he did not get fired, correct? 22 A 23 conversation. 24 Q That you told who? 25 A Just amongst us colleagues there in the office. But it's after the inspection and after he's not fired that You had never told it I think it was prior to the inspection that we had the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 84 of 344 329 1 Q About what you're going to tell the inspectors? 2 A No, about Gene coming and asking people to bridge files or 3 fill gaps. 4 Q Okay. 5 A That's when it confirmed in my mind that what I thought, it 6 confirmed it for me because I had heard it from other people 7 that they were being asked the same thing. 8 Q Did you report this to the whistle blower hotline? 9 A No, I did not. 10 Q Y'all have that on your screen. 11 could have reported it. 12 A Yes. 13 Q You didn't tell anybody? 14 A I did not report it, no. 15 persist. 16 point. 17 have asked me about it, I would have told them. 18 FBI first came and interviewed me, they asked me if I had ever 19 been asked to bridge a file or fill a gap. 20 that's why we're here. 21 Q 22 interpretation could be a mistake just like those MOAs that 23 we've shown the jury? 24 A 25 told me was, and I do not believe that was a mistake, no. You click a button and you Like I say, it was -- he didn't He was fine with what I said; so for me, it was a moot I mean, I didn't think about -- if the inspectors would Just like when I told them yes, and So I guess you're still not willing to admit that your No, sir. I know what I -- what my interpretation of what he Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 85 of 344 330 1 Q But again, you never told anybody? 2 A I discussed it with my colleagues in the office, and I told 3 the FBI agents when they came and interviewed me. 4 Q You took an oath, right, to uphold the law? 5 A Yes, sir, I did. 6 Q And you wouldn't call that upholding the law, would you? 7 A Why would it not be? 8 Q You didn't arrest him if you thought he was committing a 9 crime, did you? 10 A Would you have arrested him, sir? 11 Q When I was an Assistant U.S. Attorney, do you want me to 12 answer that question if I thought somebody was committing a 13 crime? THE COURT: 14 Let's go on to the next question. 15 BY MR. EASTEPP 16 Q 17 Ball's name where you typed wrong dates and everything, would 18 you describe those as clear, concise and accurate? 19 A The MOAs that we went over that I showed you that had Wayne They were mistakes, yes. 20 MR. EASTEPP: 21 THE COURT: 22 MR. KIDD: 23 Any redirect, Mr. Kidd? Yes, Your Honor. If I can have just one moment. REDIRECT EXAMINATION 24 25 Pass the witness. BY MR. KIDD Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 86 of 344 331 1 Q Agent Saenz, I'll try to keep it short. 2 A Okay. 3 Q When you started in the McAllen field office and Defendant 4 was the supervisor, what was the policy on the dating of the 5 signature block in memorandums of understanding? 6 A 7 keep it within a reasonable amount of time of the date of 8 activity, is what we were told at first. 9 Q Okay. 10 A Everybody -- it did once David Green took over. 11 specifically asked him again, and he said just -- even if 12 it's -- for whatever reason I don't get the MOA back to you 13 within the five day span that I'm supposed to, even if it's six 14 months later, you just go ahead and put the date that you sign 15 it. 16 Q 17 McAllen field office under Defendant, did it -- did that policy 18 change from within a few days of the activity? 19 change? 20 A 21 it. 22 Q 23 change over time? 24 A 25 you know. Again, we weren't given any direction. Did that change over time? All right. No. It was, you know, We Now, going back to you -- your time in the Did that ever Like I say, we were never given any formal direction on But did the way that you signed or dated your MOAs, did that It was, like I say, again, keeping it within the time frame, I'd say probably no more than a month or so of the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 87 of 344 332 1 activity, either date it or type in that -- that date. 2 Q 3 your understanding was you dated it within a reasonable time 4 period of when you did the investigative activity? 5 A Correct. 6 Q Regardless of when you wrote the report? 7 A Correct. 8 Q Was that only your understanding? 9 A No. 10 Q How do you know that? 11 A Because we've discussed it. 12 the date was accurate. 13 activity. 14 Q 15 different? 16 A That was the date of the activity. 17 Q I'm sorry. So during your time in McAllen field office under Defendant, Other agents as well. But the activity documented, I mean, that was the date of the So the date of the activity in the report, was that That was -- let me rephrase that question. Was the date of activity in the report, did that change 18 19 depending on -- 20 A No. 21 Q -- when you submitted a report? 22 A No. 23 Q What was that date supposed to be? 24 A The day that you did whatever activity. 25 Q And in your reports, did that date ever change, depending on Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 88 of 344 333 1 when you submitted a report? 2 A No, it did not. 3 Q What date -- in the body of the memorandum of activity when 4 you conducted an investigative activity, what date went into the 5 body of the report? 6 A The date that you did the activity. 7 Q And that never changed? 8 A Correct. 9 Q Agent Saenz, would you lie in order to have someone fired? 10 A Absolutely not. 11 Q Would you lie to have Defendant fired? MR. EASTEPP: 12 13 Judge, I object. This is argument. It's irrelevant. 14 MR. KIDD: Judge, I believe he opened the door on this. 15 THE COURT: I'll overruling the objection, but let's -- 16 BY MR. KIDD 17 Q Agent Saenz, would you lie to have Defendant fired? 18 A No, I would not. MR. KIDD: 19 Judge, if I may have just one moment? 20 BY MR. KIDD 21 Q 22 about a criminal case file, the Garcia criminal case file, which 23 is Government's Exhibit 9. 24 previously throughout this hearing. 25 an issue brought up by defense counsel. Agent Saenz, going back to your discussion with Defendant You've testified that -- to that I just want to go back to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 89 of 344 334 After your conversation in the reception area with 1 2 Defendant, did you have any doubt in your mind what Defendant 3 was asking you to do? 4 A No, I did not. 5 Q What did you understand defendant to be asking you to do? 6 A My impression of what he was asking me to do was to write 7 reports for a period when that case was not assigned to me. 8 Q And why did you not do that? 9 A Because it was illegal. 10 I did not have the case. MR. KIDD: 11 12 It was wrong. Thank you, Agent Saenz. I have no further questions. RECROSS-EXAMINATION 13 14 BY MR. EASTEPP 15 Q 16 correct? 17 A Correct. 18 Q When you gave him the answer that you were just going to 19 type a memo, he said fine, correct? 20 A When the conversation occurred, you said he was calm, Correct. 21 MR. EASTEPP: 22 THE COURT: 23 MR. KIDD: 24 THE COURT: 25 That's all I have. Okay. Nothing further. All right. Ladies and gentlemen, why don't we take about a ten minute break or so. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 90 of 344 335 1 2 3 (Jury leaves courtroom) THE COURT: Who would be next, Mr. Cooney? 4 MR. COONEY: 5 THE COURT: 6 7 8 9 Agent, you can step down. Mr. Vargas. Okay. Let's take about ten minutes. We'll come back. (Recess taken from 10:18 to 10:35.) THE COURT: Okay. Be seated. Let me mention something. I don't usually give 10 stylistic critiques during trials, but all three of y'all have 11 done this. 12 first of all, I don't like you walking away from the podiums, 13 but you also walk away from the microphone. 14 your back to like the last four or five jurors when you do that, 15 if you're -- if you drop your voice, you will not be heard. 16 keep in mind that you're doing that. 17 You realize when you walk away from the podium -- And when you have And then, Mr. Kidd, you're talking so fast. So I mean, you 18 didn't do that when you did your opening; but, I mean, your 19 questions are like a machine gun and then they're done. So when 20 you do that and walk away from the microphone, you know. Just 21 for all three of y'all, if you want the jury to hear you, you 22 need to stand close to a microphone. 23 All right. 24 (Jury enters courtroom) 25 Tony, are they ready? THE COURT: All right. Let's have them join us. Ladies and gentlemen, be seated. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 91 of 344 336 Who's our next witness, Mr. Cooney? 1 2 MR. COONEY: 3 THE COURT: Robert Vargas. Would you have Mr. Vargas come in? 4 Come right up here, sir, if you will. 5 (Witness sworn.) 6 THE COURT: 7 Go ahead, counsel. MR. COONEY: 8 All right. Be seated. Thank you, Your Honor. ROBERT VARGAS, 9 10 the witness, having been first duly cautioned and sworn to tell 11 the truth, the whole truth and nothing but the truth, testified 12 as follows: DIRECT EXAMINATION 13 14 BY MR. COONEY 15 Q Good morning, sir. 16 A Good morning. 17 Q Could you please state and spell your name for the record. 18 A Robert Vargas. 19 Q Mr. Vargas, are you currently employed? 20 A Yes. 21 Q Where are you employed? 22 A With the Department of Homeland Security-Office of the 23 Inspector General. 24 Q What is your title? 25 A Special agent. R-O-B-E-R-T, V-A-R-G-A-S. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 92 of 344 337 1 Q Are you actively involved in investigating criminal cases at 2 this point? 3 A No. 4 Q What is your status with the Department of Homeland 5 Security? 6 A 7 with pay. 8 Q Why are you on administrative leave? 9 A Pending the closure of this criminal case. 10 Q What prompted your agency to put you on administrative 11 leave? 12 A 13 reported. 14 Q Who instructed you to falsify memoranda of activity? 15 A The defendant, Special Agent Eugenio Pedraza. 16 Q At the time that he instructed you to do this, what was his 17 position within the Department of Homeland Security-Office of 18 Inspector General? 19 A He was my boss. 20 Q Mr. Vargas, I'd like to back up just a little bit and talk 21 about your career in law enforcement. 22 you join the Department of Homeland Security-Office of Inspector 23 General? 24 A I was hired January 2011. 25 Q Prior to being hired by OIG, were you in law enforcement? I'm currently on administrative -- on administrative leave I was instructed to falsify memorandums of activity which I First of all, when did Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 93 of 344 338 1 A Yes. 2 Q Where were you employed prior to joining OIG? 3 A I was a police officer with the City of Harlingen. 4 Q How long were you a police officer with the City of 5 Harlingen? 6 A Approximately seven years. 7 Q And prior to joining the Police Department in Harlingen, 8 were you in law enforcement? 9 A Yes. 10 Q Where? 11 A I was enlisted in the United States Air Force as a military 12 police officer and a criminal investigator. 13 Q When did you join the military police? 14 A 1995. 15 Q Where are you from, by the way? 16 A Harlingen, Texas. 17 Q When you joined the military, did you investigate cases or 18 become a police officer in the Harlingen area? 19 joined the military and became a police officer with the 20 military, did you work in Harlingen? 21 A No. 22 Q Where did you work? 23 A I was in the Air Force for eight years and seven months. 24 did my first four years in Abilene, Texas, with a handful of 25 temporary duty assignments in different places: Meaning when you Honduras, I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 94 of 344 339 1 Korea, Saudi Arabia. 2 Q 3 these bases? 4 A 5 violations of the UCMJ, which is the Uniform Code of Military 6 Justice, so violations -- just about anything. 7 Q 8 were you an investigator? 9 A In the military ports, I was a patrol officer, officer. 10 Q And what is a patrol officer? 11 do? 12 A 13 investigations, take reports and forward them to the CID 14 Division. 15 Q 16 cop? 17 A I would say so. 18 Q Why did you leave the military to join the Harlingen Police 19 Department? 20 A 21 daughter. 22 investigator, and I was being shuffled pretty much everywhere. 23 I had recently returned from Korea. 24 meaning that I couldn't take my family. 25 My wife was here staying with my in-laws with my kids. What kind of cases did you work when you were traveling to A variety of cases. Ultimately we -- I investigated When you first got started, were you a uniformed officer, or What does a patrol officer Well, they respond to calls, they conduct initial Is that kind of like what people might refer to as a beat Well, I had a family at that point. I had a son and a Being -- my current position, I was a criminal Korea was a remote tour, I was there by myself. So it Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 95 of 344 340 1 was pretty tough being away. Again, I was gone for a full year. I came back after I completed that tour and was stationed in 2 3 California. I was there for approximately 16 months when I got 4 orders to go back to Korea. 5 and I went through during my initial tour, I decided that it was 6 in the best interest not only for me, but for my marriage to 7 separate from the Air Force, so... 8 Q When you separated, what kind of discharge did you receive? 9 A I received an honorable discharge. Being the struggles that my wife I separated in 2003 from 10 the Air Force, and I brought my family back home to the Valley 11 where we moved back to Harlingen. 12 Q 13 Department? 14 A 15 picked up with the City of Harlingen as a police officer. 16 Q And that was about 2003? 17 A 4. 18 was -- I got the job in April of '04. 19 Q 20 did you do? 21 A 22 Basically if -- if you call 911 or if you're involved in an 23 accident, it goes straight to the dispatcher. 24 would dispatch me. 25 there and take a report. Did you go straight to work for the Harlingen Police I think it was three to four months after arriving I was I separated in three, in November of '03. I believe I When you started with the Harlingen P.D., what kind of work I was a patrol officer assigned to the graveyard duties. The dispatcher If it's my area of responsibility, I go over And I did that for about three, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 96 of 344 341 1 three-and-a-half years. 2 Q 3 every day? 4 A Yes. 5 Q Now, were you promoted at the end of that three, 6 three-and-a-half years? 7 A Yes. 8 Q I'm sorry. 9 A Yes, gang unit. Was that uniform work, meaning you wore a police uniform They created a gang eradication unit. Could you say that? Was that gang eradication? They created a new unit in the Police 10 Department, and I was hand selected for the position. 11 Ultimately it fell under the CID Division. 12 Q What does CID stand for? 13 A Criminal Investigation Division. 14 Q What kind of work did you do when you joined the gang unit? 15 How did it differ from being a uniform officer? 16 A 17 receiving calls from dispatch. 18 meaning you react to calls. 19 pretty much were looking for our own things to do. Well, we still patrolled the streets; however, we were not We were not in a reactive mode, We were in a proactive, meaning we 20 The other difference is if we take an arrest of a gang 21 member of if there's a shooting or a murder, our reports would 22 not go to CID as a patrol officer would. 23 with the entire report. 24 know, that's a good example, that did take place, there was a 25 shooting, I would respond since it was a gang related issue. We would followthrough So if there was a shooting, which, you Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 97 of 344 342 1 I'd conduct the initial investigation, and then I would pursue 2 the criminal investigation and present it to court. 3 Q 4 have experience writing reports? 5 A Yes. 6 Q What were your objectives when you wrote reports when you 7 were with the Harlingen P.D.? 8 A Receiving reports or writing reports? 9 Q Writing reports. 10 A Writing reports, the main goal is just to be accurate. 11 know, they're going to -- whatever you put in that report has 12 got to be true. 13 to be able to answer the who, what, when, where and why. 14 Q 15 ever testify in criminal cases? 16 A Yes. 17 Q When you testified, did you take an oath to tell the truth? 18 A Yes. 19 Q Is that the same oath you took today? 20 A Yes. 21 Q Did you use the reports that you wrote to prepare for your 22 testimony? 23 A With the City of Harlingen? 24 Q Yes. 25 A Yes. As a criminal investigator with the Harlingen P.D., did you You It's got to be factual, concise, and it's got When you were with the Harlingen Police Department, did you Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 98 of 344 343 1 Q Now, you already testified that you left the Harlingen P.D. 2 in about January of 2011; is that right? 3 A Yes. 4 Q Why did you leave? 5 that's when you joined OIG; is that right? 6 A Yes. 7 Q Why did you leave the -- the police department to go to OIG? 8 A At the end of my tenure with the City of Harlingen, I was -- 9 I don't think we've covered this, but I transferred into the And I'm sorry. And in January 2011, 10 Special Investigative Unit from the gang unit and I went into 11 SIU, the Special Investigative Unit as a narcotics investigator. When I received this transfer, I was working for the Drug 12 13 Enforcement Administration, DEA out of Brownsville. It was at 14 that point where I was assigned to the Brownsville office for 15 DEA that I received a phone call from an old supervisor of mine 16 with the City of Harlingen. 17 Q Who was that? 18 A His name is Wayne Ball. 19 Q And let's talk about that for a minute. 20 A At the time that I was with the city or currently? 21 Q Let's do both. 22 A Wayne Ball, when I was assigned to the Gang Eradication 23 Unit, was a lieutenant. 24 he was in charge of the Narcotics Division. 25 commander for our SWAT team. Who is Wayne Ball? Let's start with when he was with the city. He was in charge of the gang unit, and He was also the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 99 of 344 344 1 Q Was he your boss? 2 A Yes. 3 while I was working with the gang -- well, about two years that 4 I was with the gang unit and a short time that I was with the 5 Narcotics Division. 6 team. 7 in that. 8 Q 9 supervisor, what kind of relationship did you develop with him? So he was my supervisor for about a year-and-a-half He was also my commander with the SWAT I was a team leader for the SWAT team. He was commander While you were with the Police Department while he was your 10 A Professional. 11 Q What do you mean by a professional one? 12 A He was my boss. 13 Q Was he -- 14 A Mentor. 15 for -- again, I was hand selected for the Gang Eradication Unit 16 by him. 17 team by him. 18 I would go to him for things, and he trusted me. 19 Q Did he leave the police department? 20 A Yes. 21 Q Where did he go? 22 A He went to the Department of Homeland Security-Office of 23 Inspector General, which is where I'm currently at. 24 Q 25 testifying about when I interrupted you? He was -- He was someone that we could -- I could go to I was selected to become a team leader for the SWAT And it was because he was very knowledgeable, and Was he at OIG when you received that call that you started Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 100 of 344345 1 A 2 received a phone call from Wayne Ball. 3 Q 4 received from Wayne Ball. 5 A 6 left for a job that I had no knowledge of. 7 honest with you, didn't quite care, as I was transitioning from 8 the gang unit to narcotics. 9 going on, so we knew that he was leaving to get a government 10 Yes. When I was in Brownsville working for the DEA, I Why don't you tell the jury about the phone call that you I had not heard from Wayne Ball in probably two years. He Didn't -- to be You know, there's a lot of things job, so I hadn't heard from him. That one day in Brownsville, I received a call on my cell 11 12 phone, and it was Wayne Ball, and I hadn't heard from him. 13 explained to me that there was -- well, he first asked me, he 14 goes, "You know where I work?" 15 have a government job." 16 said okay. 17 office, and I've been talking to our boss about you, and I think 18 you'd fit right in. And I said, "No. He I know you He goes, "Well, I work for DHS-OIG." I He goes, "Well, there's an opening in our McAllen He wants to meet you." And, of course, I was pretty happy with the job that I was 19 20 doing. It's probably one of the better jobs you can get with 21 the City of Harlingen as a police officer, so I was -- and I was 22 all ears. 23 work we would do, and, of course, what the pay was. 24 Q What was the -- what was the pay like? 25 A At that point I believe it was -- the numbers that he gave And I asked him what the job entailed, what kind of Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 101 of 344346 1 me, it was more than what I was currently making. I think it 2 was 65 to $70,000 a year. 3 Q 4 that point? 5 A 6 safe to say, about 20 hours of overtime per pay period. 7 with this current job based off the figures that we looked at, I 8 would make more than that without having to work overtime, not 9 to mention the benefits, the federal benefits and not having to Were you working long hours with the police department at Yes. With the City of Harlingen, I was putting in, it's And 10 work the overtime, spending more time with my family and such. 11 So in any case, I agreed. 12 you -- if he wants to meet me, I'll go meet him." 13 Q 14 Wayne Ball? 15 A 16 talked to the boss about you. 17 okay. 18 said yeah. 19 was working narcotics at the time. 20 have to go home, get cleaned up, shave and get my suit ready. 21 He said, "Well, hurry up and do it," so... 22 Q Did you do it that day? 23 A Right there I left. 24 Q Where did you go after you cleaned up and put your suit on? 25 A I went to the McAllen DHS-OIG office. And who -- I'm sorry. Yes. I told him, "Okay. Well, yeah, if When you agreed, you agreed with Wayne Ball had -- he told me, "Listen, I've already He wants to meet you." And then he said, "Today." I said I said, "Well, today?" He I said, well, I -- you know, you got to consider I I didn't -- so I told him I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 102 of 344347 1 Q Who did you meet with there? 2 A Wayne Ball met me in the lobby and escorted me up. 3 we arrived to the -- to the OIG office, he escorted me into -- 4 into the -- his boss' office, which is Eugenio Pedraza. 5 Q Did you -- 6 A He introduced me. 7 Q Did you meet with the defendant Eugene Pedraza that day? 8 A Yes. 9 Q What did you all talk about? 10 A I don't recall the specifics of what we discussed. 11 was -- I mean, it was obvious. 12 why I was there. 13 He was talking to me about work, what I currently did and 14 experiences, background, and -- 15 Q When the meeting was done, did you want the job? 16 A Yes. 17 Q Did you apply for it? 18 A Yes. 19 Q And I take it you got it? 20 A Yes. 21 Q Was it the defendant who hired you? 22 A Yes. 23 Q Were you excited about that? 24 A Very. 25 Q So let's talk about when you made the move to DHS-OIG. I knew why I was there. And once It He knew It was a very informal conversation, pleasant. You Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 103 of 344348 1 started in January 2011; is that right? 2 A Yes. 3 Q What happened on your first day at work? 4 A My first day from the academy or my first day just -- 5 Q Your first day at work for DHS-OIG in McAllen. 6 A I don't recall exactly how the day went or what exactly I 7 did. 8 that were in that office. 9 were unrelated to work as well. You know, I was introduced to -- to the rest of the agents You know, just discussed things that He explained to me that they 10 didn't have, you know, very much office space and that I 11 would -- once I returned from the academy, that I would be 12 working out of the conference room; you know, things like that. At some point during that day, I was given the oath for -- I 13 14 forget what the heading was on the document, but -- 15 Q What oath? 16 A The oath to uphold the constitution as far as a special 17 agent. 18 Q Did anyone administer that oath to you? 19 A I believe it was the defendant. 20 Q Now, did you immediately begin to work cases as a special 21 agent when you started in January 2011? 22 A No. 23 Q What kind of work did you do when you got started? 24 A I was just doing administrative things. 25 pegged for an academy date, so I was just getting orientated I had already been Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 104 of 344349 1 with the office, meeting the people. He would show me cases 2 and -- 3 Q Who's "he"? 4 A Excuse me. 5 me different cases and different -- he in particular wasn't 6 showing me databases, but he was -- pretty much kind of pointed 7 me in the direction of what I'm going to be doing when I get 8 back. 9 Q Were you assigned any cases to investigate at that time? 10 A No. 11 Q Now, you mentioned something called the academy. 12 that? 13 A 14 Georgia. 15 Q 16 referred to as FLETC? 17 A Yes, FLETC. 18 Q Is that F-L-E-T-C? 19 A Yes. 20 Q Where is FLETC again? 21 A Glenco, Georgia. 22 Q Did you go there? 23 A Yes. 24 Q How long did you spend there? 25 A Approximately four months. The defendant would -- the defendant was showing I was going through, like I said, different cases. What is The Federal Law Enforcement Training Center, Glenco, Did you -- is there an acronym you use for that? Is that Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 105 of 344350 1 Q Was that four months away from your family? 2 A Yes. 3 Q What kind of training did you receive at FLETC? 4 A Pretty much the same training I received when I went to the 5 academy in the Air Force and the academy at the police 6 department. 7 Q 8 did you get training about report writing? 9 A Yes. 10 Q Did you get training about testifying in court? 11 A Yes. 12 Q Did the training that you received at FLETC, did it 13 reinforce the principles that you already testified about that 14 you were experienced in with the Harlingen Police Department? 15 A Yes. 16 Q Now, about when did you return from FLETC back to the 17 McAllen field office? 18 A I believe it was in June 2011. 19 Q When you arrived back, were you assigned cases to 20 investigate? 21 A Yes. 22 Q How were you assigned cases? 23 A After I finished the academy, of course, I had already 24 coordinated with the defendant about my return and when I was 25 expected to return back because I didn't fly over there. And specifically let me ask you, during your time at FLETC, I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 106 of 344351 1 drove. So he had a good idea of what day I was going to return, 2 and we had agreed on what day I was going to report to work. 3 don't remember the exact date of when it was, but I would 4 venture it was in June. It was near my birthday. That morning, of course, he knew I was getting there. 5 I I 6 arrived. And I'm not quite sure how we greeted each other; but 7 in any case, I went to the conference room where I was told my 8 office was going to be. 9 defendant walks in the conference room and presents me with a At some point during that morning, the 10 stack of cases, work cases that he said were assigned to me. 11 pretty much told me take a look at them. 12 believe he told me to get with certain people in the office if I 13 had any questions. 14 Q What do you mean by -- 15 A That was pretty much it. 16 Q What do you mean by he gave you a bunch of work cases? 17 think that was the term that you used. 18 A 19 normal, but I showed up in the morning, and he showed up with a 20 stack of cases I think. 21 They're folders with allegations of criminal -- criminal 22 allegations of DHS employees, and he told me to take a look at 23 them. 24 some of the guys in the office. 25 Q These are yours. He I I Again, I didn't know what -- I didn't know if that was These are yours. I don't know, eight to ten cases. If you have any questions, get with I said okay. So when you were handed those, those files, what did you do Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 107 of 344352 1 with them? 2 A Just that. 3 Q Did those files contain notes or reports or things like 4 that? 5 A 6 cases had been worked on by other agents, so I was able to go to 7 some agents and say: 8 yes. 9 background on it to see if there was some other activity that I I looked through them and I -- Some of them did. Some of them had some -- some of the Hey, did you have this case? What have you done on it? They said They would give me the 10 could pursue. There were other cases that didn't have any work 11 done on them. So then I'm going to have to go and ask around: 12 Have you ever heard of this case? So it was at some point, whenever, I made an assessment of 13 14 what kind of case load I had. This is meat being good stuff. 15 This is fat, being bad stuff. 16 Q 17 about where to place your priorities? 18 A Well, we were kind of -- we were -- 19 Q Let me ask you a more direct question. 20 the meat cases over the bad cases? 21 A 22 leads were -- they weren't any good. 23 was opened. 24 would tell me you need to close that out. 25 closeout. Where did you -- did you make any decisions at that point Did you prioritize Well, some of the bad cases, meaning that they were -- the It made no sense of why it There were cases there that everyone in the office Close it out. That's an easy Get rid of the fat so you can focus on Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 108 of 344353 1 the meat. I didn't know how to close anything out. I didn't 2 know how to do anything. 3 Q 4 which cases were fat, did you rely on the reports that were 5 contained in those files? 6 A Yes. 7 Q Did you go in with the assumption that the reports contained 8 in those files were true? 9 A Yes. 10 Q Why? 11 A It just made sense. 12 Q Were those reports prepared by other special agents? 13 A In most cases, yes. 14 Q Was it your expectation that your colleagues would write 15 truthful reports? 16 A Yes. 17 Q Was that the same expectation you had had as a police 18 officer with the Harlingen Police Department? 19 A Yes. 20 Q Now, at that time in June 2011 or so, did you routinely work 21 out of the McAllen field office itself? 22 A 23 It was at some point, a month or so after, month-and-a-half, 24 maybe a couple months, I'm not quite sure, I found myself 25 operating out of my old DEA Brownsville office. When you made the assessment about which cases were meat and Initially, yes, I was operating out of the McAllen office. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 109 of 344354 1 Q What do you mean by operate out of your old Brownsville DEA 2 office? 3 A 4 presented to me by the defendant, there would be an allegation, 5 for example, of a Border Patrol agent out of Brownsville. 6 that would mean that I would have to do a lot of investigative 7 work in Brownsville. 8 Border Patrol agent in Rio Grande City or McAllen, and we caught 9 ourselves doing two days of work here in Brownsville and then These cases that -- for example, the cases that were So But then I would have another case of a 10 two days of work over in McAllen. 11 sense. It just didn't make any And at some point, someone suggested why don't you just 12 13 give, for example, Brownsville cases and Harlingen cases, 14 Cameron County cases to Robert or to me. 15 there. 16 cases, give them to the guys who live in McAllen. He's from there. He lives there. He's got a network And then McAllen So at some point our office transitioned into that, and I 17 18 was only receiving Cameron County cases. 19 Q 20 type of cases, did you literally work out of, meaning use the 21 office space of the Brownsville DEA? 22 A 23 interviews in Brownsville and Harlingen, and I needed somewhere 24 to sit down to write what had just taken place. 25 catch myself going to my old DEA office with my old colleagues, So then did you -- when you started just receiving those Yes. As I mentioned before, I caught myself doing So I would Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 110 of 344355 1 and I would be able to tap into their secure network so that I 2 could write my reports. And I was there so many times that it was suggested to me by 3 4 the boss of the DEA, Robert, why don't you just move in here. 5 We've got plenty of room. 6 still learning the job. 7 suggest to the boss, but I agree with you. 8 Q Did you suggest that to your boss? 9 A I believe -- I believe I did. And I told him, well, I'm new. I'm I don't know if it's something I should I mean -- At the same point I think I 10 suggested it to the DEA boss, if he can contact my boss and 11 suggest it to see if it would be okay. 12 Q Well, in any -- 13 A It was agreed, yes, that we were given permission to operate 14 out of that Brownsville office. 15 defendant, our boss, agreed to it as well. 16 continued to operate out of Brownsville. 17 Q Who is "we"? 18 A My partner, Kristofor Healey. 19 Q Once you all began working out of the Brownsville DEA 20 office, was that the primary place you reported to work? 21 A Yes. 22 Q Was that essentially your office? 23 A Cubicle, yes. 24 Q How far is Brownsville from McAllen? 25 A An hour approximately. And then, of course, the So, yes, we just Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 111 of 344356 1 Q Were there times that you reported to the McAllen field 2 office for work? 3 A Yes. 4 Q Can you give the jury just a sense of how many days a week 5 you worked out of Brownsville, how many days a week or days a 6 month or whatever you worked out of McAllen? 7 A 8 than three to four times a month, and that was simply for 9 administrative paperwork issues that we had to submit. In a month I would imagine we would go to McAllen no more 10 Q 11 report here every Tuesday? 12 A No. 13 Q Report here every other Wednesday, anything like that? 14 A No. 15 Q When would you go to McAllen? 16 A Whenever we needed to. 17 vehicles assigned to us. 18 believe, a month. 19 month, along with our gas usage. 20 why we would go to McAllen. 21 month turn in our monthly miles. 22 would go to McAllen. 23 Did you have a standing appointment to go to McAllen, like For example, we had government We had to turn in our mileage once, I I forget already. I believe it's once a So that was a good example of We would have to at the end of the Those are examples of why we Or if there was a meeting of the office, we would show up, 24 or we had training. But for the most part, operationally we 25 were in Brownsville for the most part. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 112 of 344357 1 Q Was that only you and Kristofor Healey? 2 A Yes. 3 Q Did you and Agent Healey develop any kind of relationship 4 when you were working together out of Brownsville? 5 A Yes. 6 Q Did the two of you consider each other law enforcement 7 partners essentially? 8 A Yes. 9 Q How did you investigate your cases? And actually let me ask 10 a more direct question. 11 together? 12 A 13 caseload. 14 again, we -- Agent Healey, my partner and I, we were under -- we 15 were doing -- we were pretty much following the same principle: 16 It's work on the meat. 17 off the fat on some of the other cases. 18 Yes. Did you investigate your cases We had -- our office -- our office, we had a large We had more cases than what we could deal with. And Kind of if we get the chance, we'll cut But if we had some cases that were both considered meat, I 19 did and he did, and we would take turns. You know, if one of 20 his meat cases had something to work on, we would focus on his 21 case for two days, three days, whatever it was, and I would help 22 him doing interviews, surveillances, whatever it was. 23 was my case that we were working on that had meat, he would -- 24 he would do that for me as well. 25 would take turns. And if it So, you know, we would -- we We were tag teaming our cases. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 113 of 344358 1 Q Through your work together, did the two of you develop a 2 friendship? 3 A Yes. 4 Q Was Kristofor Healey someone you felt like you could trust? 5 A Very much so. 6 Q Now, I'd like to change topics and talk about the inspection 7 of the McAllen field office. 8 of 2011 that you learned that there was going to be an 9 inspection of the field office? Still do. Did there come a time in the fall 10 A Yes. 11 Q How did you learn that? 12 A Well, I couldn't tell you with certainty what -- I know it 13 either came in through communication of email or a phone call 14 from the defendant, but at some point we were informed that 15 there's going to be an inspection on a certain day and start 16 preparing for it. 17 Q 18 was going to occur? 19 A In September 2011. 20 Q About when did you find out about it? 21 time frame, not an exact date. 22 A About a month before. 23 Q What was your understanding of what the inspection was going 24 to be about? 25 A And approximately when did you understand that inspection None, zero. I didn't have any idea. Just looking for a I had never been Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 114 of 344359 1 through an OIG inspection. 2 Q Did you ask any questions of anyone about the inspection? 3 A Yes. 4 Q Did you ever ask questions of the defendant about the 5 inspection? 6 A Yes. 7 Q Let's talk about that. 8 conversation between the two of you or a series of 9 conversations? How many -- was this -- was this a 10 A I recall one conversation. 11 Q Where did it occur? 12 A In the McAllen office. 13 Q Where within the McAllen office? 14 A In the break room. 15 Q Was anybody else in the break room with you and the 16 defendant that you remember? 17 A 18 who they were. 19 Q 20 occasion? 21 A 22 so that's what everyone was talking about, preparation for the 23 inspection. 24 ever been through an inspection. 25 him what -- what should we expect? Yes. It was -- There were other people there. I just don't remember What did you and the defendant talk about on this particular It was -- it wasn't too long before the actual inspection, I recall asking the defendant specifically had he He had told me yes. I asked He said, well, they're going Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 115 of 344360 1 to bring in some people from Washington, D.C. They're going to 2 go through our paperwork. 3 we're following policy. 4 they're going to do individual interviews with all the agents, 5 which I was not aware of. 6 Q Did you talk to him about those individual interviews? 7 A Yes. 8 They're going to talk to us? 9 what? They're going to go make sure that And at some point he told me that So after he informed me of this, I said: He goes: He's like yeah. Really? I asked him about Well, they're just going to ask you questions 10 about how you like to work here and how you like working for 11 your boss and, you know, things like that. And my response to him was: 12 Well, what if -- what if I say 13 bad things or negative things about my boss? 14 Q Did he respond to that? 15 A Yes. 16 this question, the defendant was not the only boss, okay? 17 was -- there was an under -- there's an ASAC, Jody Warren, 18 beneath the defendant. 19 my opinions on Jody Warren. 20 seen as a supervisor that, you know, were questionable in my 21 mind. 22 And it's important to note as well that when I asked There And I -- you know, there was a -- I had So there were some things that I And so after he told me -- you know, when I made that 23 statement to him: Well, what if we say bad things about our 24 boss? 25 time I was on probation. His response to me was with regards to my probation, the He said: Well, you're still on Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 116 of 344361 1 probation, and I still have to write your evaluations, in a 2 laughing manner. 3 Q And -- 4 A We continued to talk about different things there about the 5 inspection. 6 anymore questions. 7 Q 8 done something wrong to get on probation at that point? 9 A But at that point, I pretty much didn't ask him Got the idea of what to expect. Mr. Vargas, what does it mean to be on probation? No. Had you No, I was just -- probation means you're hired. At 10 that point I didn't know how long I was on probation. 11 proposed the -- I had asked the question to several agents to 12 include the defendant, and I could never get a sound answer. 13 was never told. 14 Later on I found out it was only a year. I had I But I knew without 15 a doubt that when you're on probation, you don't need much of an 16 excuse to get terminated. 17 pretty much knew as far as -- I knew that it's a training period 18 and you got to show progression and things like that; but at the 19 same time, they don't need much of an excuse for you to lose 20 your job. 21 22 23 THE COURT: So I knew that. But that's all I Mr. Vargas, what you're saying is that when you're a new hire, you're on probation for a year. THE WITNESS: Well, Your Honor, for example, Kristofor 24 Healey, my partner, he was already in the federal system. 25 wasn't an agent, but he was in the federal system. He So from what Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 117 of 344362 1 I understood later on, he was not on probation, but he was led 2 to believe he was on probation. 3 whether or not that's true. 4 federal time, yes, you are automatically on probation. THE COURT: 5 And to this day, I don't know But a new hire like myself with no Okay. 6 BY MR. COONEY 7 Q 8 the defendant, you said that you had formed -- already had an 9 opportunity to form some opinions about the assistant special Now, Mr. Vargas, at the time you had this conversation with 10 agent in charge, Jody Warren; is that right? 11 A Yes. 12 Q Were those opinions positive or negative? 13 go into detail, but on a broad brush. 14 A Negative. 15 Q Now, at that point, had you had an opportunity to form 16 opinions one way or the other about the special agent in charge, 17 about the defendant? 18 A Yes. 19 Q What was your opinion at that point? 20 A I liked him. 21 Q Why? 22 A He -- you know, he -- I -- I was told of some things that -- 23 that had happened in the office that I wasn't subjected to. 24 It's hearsay. 25 was never subjected to any of the stuff that I had heard. We don't need to But I had heard some stories prior to that. I He Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 118 of 344363 1 had always been pretty good with me. You know, for example, the thing of moving into Brownsville, 2 3 I heard a lot about that. Your guys there had been there for 4 two, three years, and I had only been there for a few months. 5 Q And you were appreciative of that? 6 A Very much so, and I felt that -- I felt that he trusted me 7 and -- and I appreciated it. 8 me or because I was with Kristofor Healey. 9 doing a good job too. I don't know if it was because of Kristofor Healey was But he was good to me. I mean, we didn't 10 talk very much, but I didn't have any -- I didn't have many 11 negative opinions about him at that point. 12 Q 13 your opinion change? 14 A 15 about his probationary status and wasn't ever told -- 16 Q 17 question, just yes or no. 18 opinion change? 19 A Yes. 20 Q Now, apart from anything that happened to Kristofor Healey, 21 did your opinion change because of anything that happened to 22 you? 23 A Just the conversation we had in the break room. 24 Q At that moment? 25 A Yes. At some point after that conversation in the break room, did Yes, because I know that Agent Healey had -- had inquired Let me just ask you -- let me just ask you a direct At some point after that, did your Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 119 of 344364 1 Q Okay. Why did your opinion change at that moment? 2 A Well, because it was -- it was clear to me that he was going 3 to hold the probation over my head. 4 Q Even though he told you this jokingly? 5 A Yes. 6 Q Sometime after that conversation, were you ever contacted by 7 the defendant while you were in Brownsville to report to McAllen 8 to do work related to the inspection? 9 A Yes. 10 Q What were you contacted by the defendant to do? 11 A It was something like: 12 couple weeks. 13 to need you guys to -- or me, being Kristofor Healey and myself 14 to -- he basically asked us to report to the McAllen office the 15 following week, I believe. 16 Q Was this conversation by phone or in person? 17 A By phone. 18 Q Were you actually at the Brownsville DEA office when you 19 received this phone call? 20 A As far as I recall, yes. 21 Q And about how much notice did he give you to report to 22 McAllen? 23 A 24 days prior, but I believe it was the following week. 25 Q Hey, you know the inspection is in a We're in preparation mode right now. I believe it was the following week. So it wasn't like report in an hour. I'm going I don't know how many It was report some day Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 120 of 344365 1 next week. 2 A 3 stuff going on over there, wrap it up, so that way you can focus 4 on being over here the following week. 5 Q 6 it was he wanted you to do when you came to McAllen? 7 A 8 here the following week, preparation for the case. 9 to go through -- we had to look through and get the cases Right. He just -- he gave us a head's up. Hey, if you got During that phone conversation, did he explain to you what The only thing he told me was -- excuse me. You have to be We're going 10 prepared. There's some things I'm going to need you to do, and 11 I'm going to have Agent Healey, my partner, help you with it. 12 That was it. So he wanted us to go over there in preparation for the 13 14 inspection. It had to do something with our cases, and he was 15 going to have Agent Healey help me out with it. 16 what or anything. 17 when I get over there. 18 Q 19 office as he had instructed you to do? 20 A Yes. 21 Q When you reported there, was that the first -- on that 22 particular day, was that -- did you report directly in the 23 morning to the McAllen field office? 24 A Yes. 25 Q When you arrived at the McAllen field office, where did you I personally didn't care. I didn't ask Just I'll do it The following week did you report to the McAllen field Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 121 of 344366 1 go? 2 A 3 believe he was on the phone. 4 kind of gestured to each other. 5 you asked. 6 right with you. 7 room expecting that he would call me into his office to discuss 8 what he had planned for me for that week for the inspection. The defendant's office was -- office door was open. I As I got in front of his door, we Let him know, hey, I'm here as He made a gesture back to me. So I continued. I'm busy. I'll be I went into the conference So I walked into the conference room, and I started 9 10 connecting my laptop and getting my cases prepared, see -- to 11 see exactly what it was he was going to want us to do. 12 Q Why did you go to the conference room? 13 A Because we didn't -- we didn't have -- we had limited space 14 in the McAllen office. 15 already, so the only open room, available space for me to 16 operate was the conference room. 17 Q 18 set up, did the defendant ever come in to the conference room? 19 A Yes. 20 Q When he came into the conference room, was there anyone else 21 there? 22 A No. 23 Q Was the door to the conference room open or closed? 24 A It's open. 25 Q When he came in, were you seated or standing? All the offices were -- were taken up After you went into the conference room and started to get Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 122 of 344367 1 A I was sitting down. 2 Q Where in the conference room did he go? 3 A As he walked in, he -- he walked in the doors to my left. 4 He walked in and sat directly in front of me on the conference 5 table. 6 Q 7 table from each other? 8 A Yes. 9 Q Did he say anything? 10 A He had -- he had case files in his hands, four or five of 11 them. 12 in the blue folders, meaning that they're internal files. 13 are the originals. 14 they're in a brown folder. So were the two of you on other sides of a conference room I don't remember. He had a handful of them. They stay in the DHS office. They were Those My files, They're work files. So when he walked in, he had, I don't know, a handful, four 15 16 or five of them in his hands. And he sat down, put those files 17 in front of me and asked me if they were mine. 18 Q Were they? 19 A Yes. 20 are all my cases. I looked through them, and I informed him, yes, these They're assigned to me. You want me to continue? 21 22 Q Well, what happened after you confirmed for him that they 23 were your cases? 24 A He -- he asked me in particular if one case was mine. 25 Q What case did he ask you about? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 123 of 344368 1 A The subject of the case was U.S. Customs Agent Manny Peña, 2 Manuel Peña. 3 Q 4 for a minute and talk about the Manny Peña case. 5 so we're clear, was the Manny Peña case assigned to you? 6 A Yes. 7 Q When was -- when had the Manny Peña case been assigned to 8 you? 9 A All right. Let's just take a step out of this conversation First of all I received the physical case file in June, the first day I 10 returned from the academy, June 2011. 11 Q 12 that was placed on the conference room table and that you were 13 instructed to go work? 14 A That's correct. 15 Q What was the criminal allegation in the Manny Peña case? 16 A The allegation regarded suspicions of -- he worked at -- he 17 worked at the port at one of the bridges. 18 smuggling narcotics and human smuggling through the bridge for 19 the Mexican Cartel. 20 Q 21 review of the file when you were first assigned it in June 2011? 22 A Yes. 23 Q When was that investigation first opened? 24 A I believe it was March 2010. 25 Q Was that before you were even employed by OIG? That was one of the set of cases you talked about earlier He was suspected of Did you come to understand that allegation based on your Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 124 of 344369 1 A Yes. I was employed in January of 2011. 2 Q From your review of the file, were you able to determine who 3 was assigned the case between March 2010 and June 2011? 4 A No. 5 Q When you reviewed that file when you first received it back 6 in June 2011, were you able to make any observations about what 7 work had been done? 8 A 9 Manny Peña case was that there was an interview or -- or -- The only thing I knew that took place in that particular 10 there was a communication between two people in our office and 11 the FBI, because the FBI was conducting their own investigation 12 on Manny Peña. 13 by Kristofor Healey. 14 in our office, Camillo Garcia, went to the FBI office and 15 conducted an interview with the FBI agents with regards to the 16 allegation. 17 in the case report with regards to that. 18 information that was given to me by Kristofor Healey. 19 than that, there were no indications that any work, if at all, 20 had been conducted on it. 21 Q 22 activity that Kristofor Healey told you about, was that even 23 reported in the file? 24 A No. 25 Q Were there any reports in the file? And this was -- this information was given to me From what he told me, he and another agent That was the only thing. It was nothing in writing That was just Other When you first read that file in June 2011, was that Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 125 of 344370 1 A Other than the initial complaint, no. 2 Q And so we're clear, were there any memoranda of activity or 3 MOAs in the file when you first received it in June 2011? 4 A No, not that I recall. 5 Q When you were first assigned it in June 2011, did you take 6 any investigative steps? 7 A Yes. 8 Q Why did you consider it meat? 9 A There was a number of things. 10 Q What were they? 11 A No. 1 is the FBI had the case as well. 12 work on it. 13 did not get along. 14 much weren't superior to them. 15 wasn't getting along, so we won't work together. 16 they had the case, so that meant that they had some meat on it. That was a case that we considered meat. They had done some It's important to know that our office and the FBI They weren't superior to us, and we pretty For whatever reason, management But we knew During the course of our investigation, we determined that 17 18 the FBI had an informant that was providing this information, 19 and we wanted that information, considering that Manny Peña was 20 one of our employees. 21 Q 22 just from looking at the case that made you think that there 23 might be some meat there? 24 A 25 knew that there was stuff there, and I'm sure there was. And apart from that, were there any other things when you -- I don't recall. That was -- that was pretty much it. We I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 126 of 344371 1 can't recall at this point, but it was in the meat stack. 2 Q 3 were there any reports or any memoranda of activity or anything 4 like that in the file that would have indicated that the case 5 was progressing? 6 A No. 7 Q What investigative steps did you take once you received the 8 case in June 2011? 9 A But other than the fact that the FBI had the investigation, Well, I -- I treated that case as though it was given to me 10 in June of 2011, like if it was opened that day. Although it 11 wasn't, it was opened in March of 2010, I treated it as though 12 it was opened on June 2011 because there hadn't been any work on 13 it. No productivity that I could go off of. So what I did is -- is what you do on normal cases that you 14 15 initially open. The first thing I did is I verified that, 16 No. 1, he is an employee of ours, which I verified. 17 Customs inspector. 18 Q How did you verify that? 19 A We have databases. 20 It stands for Employment Data System. 21 you put his name in a query box, and it comes up, and the 22 biographics as far as what -- that we already had on him 23 matched, so we determined, okay, he's an employee, No. 1. 24 got to first determine that he works for the Department of 25 Homeland Security, which is what I did. He was a I believe I used the -- our EDS system. Essentially you just -- You Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 127 of 344372 1 Q After you confirmed that he worked for OIG or, excuse me, 2 worked for Department of Homeland Security, did you take any 3 other investigative steps? 4 A 5 database. 6 essentially CLEAR is a database that gives you just about 7 everything on that person: 8 that he owns or owned, associates, extended family members. 9 gives you a lot of stuff. Yes, I did some other checks. I believe I queried our CLEAR I don't recall what CLEAR stands for. But Address, phone numbers, vehicles So I believe I did that check to 10 confirm the address that we had on our employment database. 11 you know, the EDS system will give you an address. 12 the CLEAR, and it gave me the same address. 13 well, now I know where this guy lives. 14 check, got his -- more of his biographics. 15 It So, I went to So, you know, okay, So yeah, I did a CLEAR After the CLEAR check, I believe I did a TECS check, 16 T-E-C-S. That doesn't stand for anything. It's just a database 17 that we have within Homeland Security. 18 check is because at the time and currently, the -- you know, 19 Mexico is really unstable and not many people are traveling into 20 Mexico. 21 one reason I did it is to see if whether or not he was crossing 22 into Mexico as an inspector. 23 that if this guy is working for the cartel, he's going to have 24 to go over there and meet with them. 25 can help you in the case. The reason I did this So we did a TECS check for a number of reasons. But A lot of times you want to believe There are just things that Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 128 of 344373 1 Q It sounds like you're collecting information to do an 2 investigation. 3 A That's exactly what I was doing. 4 Q And so we're clear about TECS, when you run a TECS search, 5 is one of the pieces of information you can get is information 6 about a person's border crossings? 7 A 8 other -- it will provide you criminal history on him. 9 provide if he's ever been investigated in the past by other Not only that. I mean, it also -- it will also provide you That would be in there. It will 10 agencies. So there's a number of 11 reasons why I did the TECS check. 12 a very good tool that we have. 13 Q 14 criminal background that you're referring to, does that 15 information come from what's referred to as NCIC? 16 A Yes. 17 Q Do you know what NCIC stands for? 18 A I believe I do, but under oath -- 19 Q That's all right. 20 A I believe it's National Crime -- 21 Q That's all right. 22 A -- Information System or Intelligence System. 23 It's been two years I've been out of work, so I'm sorry. 24 almost two years, so... 25 Q It provides a lot of -- it's Does that -- incidentally, the criminal information, the That's all right, Mr. Vargas. I forget. It's But when you run a TECS check Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 129 of 344374 1 when you run it through your TECS database, can you collect that 2 NCIC information? 3 A Yes. 4 Q Now, let's step back to the conference room conversation 5 that I interrupted you to talk about the Manny Peña case. 6 the time that the defendant brought in these cases in the 7 conference room and handed you the Manny Peña file in 8 particular, was the Manny Peña case still open? 9 A Yes. 10 Q Did you at that point consider it to be a case with some 11 meat? 12 A Yes. 13 Q Was it your intention to keep investigating that case? 14 A Yes. 15 Q All right. 16 defendant asked you if the Manny Peña case was yours? 17 A 18 mine, I told him yes. 19 that case was going to be part of the inspection, if you will. 20 He informed me that the case had gaps in it, which I already 21 knew. 22 Q What do you mean by gaps? 23 A It means there was a time period where no work had been 24 done. 25 a surprise to me. At What happened in the conference room after the When he isolated that particular case and asked me if it was At some point it was clear to me that I knew the case had gaps in it. And so, of course, it doesn't come -- that didn't come as So he told me we need to clean this case up. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 130 of 344375 1 We need to fill in these gaps, and I'm going to have Kris help 2 you out with it, Kristofor Healey, my partner. My response to him was that I did not need Kristofor 3 4 Healey's assistance because these checks that I just mentioned 5 to you guys, the TECS checks, the CLEAR checks, the EDS checks 6 and a couple of surveillances Kristofor Healey and I had already 7 done, and I had drafted up memos or reports, if you will, for 8 that activity. 9 submitted them. I just had not finalized them. I had not 10 So when he told me that he was going to have Agent Healey 11 assist me in filling these gaps, I told him I didn't need his 12 help. 13 take me very long. 14 Q How did the defendant respond to that? 15 A He told me -- his response was, "I don't think you 16 understand what I'm telling you to do." 17 Q Were those his words? 18 A Yes. 19 Q And I'm sorry I interrupted you. 20 told you, "I don't think you're understanding what I'm telling 21 you to do"? 22 A 23 to do? 24 attention: 25 when it was opened from when I was not employed through I said: I've already got this stuff drafted. It won't I'll knock it out. Well, my response was: Okay. What happened after he Well, what are you telling me At which point -- at which point he brought to my I'm talking about this gap, from March of 2010 from Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 131 of 344376 1 June 2011, which is when I was hired. 2 referring to the gap as the gap is -- when it wasn't assigned to 3 anyone when I wasn't there. 4 Q 5 March 2010 to June 2011? 6 A 7 right. Was he explicit about that, about referring to from Yes, because my response to that was: Oh, okay. You're I'm not understanding what you're telling me to do. I was under the impression that he was talking about the gap 8 9 Essentially he was from June when I had it to that current date, because I hadn't 10 submitted any reports at that point. 11 about the gap when it was assigned to me. 12 him: 13 you. 14 Q 15 said, "I misunderstood you"? 16 A 17 gaps? 18 reports, whatever it is you normally do, something to that 19 effect. I remember asking him: 20 checks? He said: 21 I write them up and then what? 22 Stretch them out from March to June. 23 Q Are those his words, "stretch them out"? 24 A I believe so, yes. 25 Oh, okay. I thought he was talking So I made it clear to I did misunderstood you -- I did misunderstand What did you tell him after -- or what happened after you I told him: Okay. So how do you want me to fill in these He told me -- he told me it -- write up checks, write up What do you mean? What kind of It doesn't matter, just -- I said: He goes: Okay. So Stretch them out. Fill in that gap. Pretty sure that's what he said. In any case, once he started explaining that to me, he told Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 132 of 344377 1 me, he goes: You're just going to write them up. You're going 2 to write up the reports, stretch them out, fill in the gaps, and 3 that's why I was telling you I was going to have Agent Healey 4 help you out with it because he was here. 5 him: 6 got hired during the same time I got hired. At which point I told No, Agent Healey wasn't here during that time either. At some point during that time, Agent Healey walks in. 7 He I 8 don't know if he was in the break room, he heard his name, or 9 I'm not sure how he walked in, but he walked in. And I believe 10 it was a time where I said: Well, Agent Healey wasn't here 11 either. 12 can't -- excuse me. 13 Q 14 room? 15 A 16 right: 17 instructed Agent Healey to contact or to bring Agent Wayne Ball 18 into the conference room. 19 Q Who instructed Agent Healey? 20 A I believe the defendant told Agent Healey go get Wayne Ball, 21 because Wayne Ball shortly after that walks in. 22 Q 23 Healey leave the conference room? 24 A Yes. 25 Q Once Agent Healey left the conference room and before Wayne And I looked at him. I said: So he can't. He He can't do anything with this. What happened after Agent Healey walked into the conference The defendant acknowledged that. You're right. He acknowledged that's He wasn't here either. So I believe he Did -- after that instruction that you recall, did Agent Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 133 of 344378 1 Ball came into the conference room, did you and the defendant 2 continue to talk about this subject? 3 A Yes. 4 Q What did you talk about? 5 A We went back and forth about the checks that he wanted me to 6 write. 7 And I recall telling him that TECS checks can be keystroked, 8 meaning people can go back and check if that TECS check was 9 done. At some point or another, a TECS check was discussed. Not only can they check if it was done, they can 10 determine by who it was done; by whom it was done. 11 Q Did he have any response to that? 12 A He said: 13 won't do a TECS check. Okay. Well, then, yeah, we won't do that. We And at some point during that conversation, you know, I'm 14 15 thinking to myself, darn, okay? I know -- I know what he's 16 telling me to do here. 17 Q What did you understand him to be telling you to do? 18 A To fill in the gap from March 10th, 2011, with reports that 19 did not take place. 20 Q At some point did Wayne Ball come into that conference room? 21 A Yes. 22 Q What happened when Wayne Ball came into the conference room? 23 A The defendant and I were still discussing how to fill the 24 gaps with what kind of checks. 25 time period and trying to figure out how long of a time period. You know, I was looking at the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 134 of 344379 1 How many would -- how many checks can I write up? And at some point Agent Ball walks in, and he stands 2 3 directly to my left. The defendant is still sitting in front of 4 me. 5 I was being instructed to do. 6 same thing. 7 You know, we were discussing doing TECS checks, but I just 8 informed him that TECS checks can be keystroked and they can be 9 verified. And it's at that point where I explained to Agent Ball what I said, you know: I recall telling Agent Ball the He wants me to write up checks. 10 Q 11 conference room at this point? 12 A The defendant, myself and Wayne Ball. 13 Q So what was said after you -- after you repeated the 14 information about the key strokes to Wayne Ball? 15 A 16 agreed that, hey, we can't write up a TECS check because it can 17 be checked. 18 random checks and stretch them out during the gap? 19 guess you're going to have to sign them because you were here 20 during that time. 21 Q How did Wayne Ball react to that? 22 A "No problem. 23 Q Did the defendant say anything at that point? 24 A I don't remember exactly what he said, but he said okay. 25 And so we're clear, was the defendant still in the That's it. I don't remember what -- what -- what was said. And I said: It was just So he just wants me to write up these And then I I'll do it." MR. EASTEPP: Judge, I object. He just said he doesn't Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 135 of 344380 1 know what he said. 2 THE WITNESS: I said I don't know exactly. 3 MR. EASTEPP: Judge, I object. 4 THE COURT: 5 MR. COONEY: 6 Hold on one second. Go ahead and let the judge -Can I ask a few foundational questions, Your Honor, and I 7 8 Wait, wait, wait, wait, wait. think we'll -THE COURT: 9 Wait a minute. 10 THE WITNESS: 11 THE COURT: Agent Vargas, don't guess. Yes, sir. If you remember the words, you can say the 12 words. And if you remember the sense of them, you can tell us 13 what the sense was, but don't guess, you know, as to the answer, 14 all right? 15 THE WITNESS: 16 THE COURT: I understand. All right. I apologize, Your Honor. Go ahead, Mr. Cooney. 17 BY MR. COONEY 18 Q 19 anything? 20 A 21 "When you're done doing the reports, send them to me." 22 23 24 25 After Wayne Ball said, "I'll do it," did the defendant say The conversation ended like this. MR. EASTEPP: Judge, I object. The defendant told me, He's not answering the question he was asked. THE COURT: Mr. Vargas. Just answer the question you're asked, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 136 of 344381 THE WITNESS: 1 The defendant -- 2 BY MR. COONEY 3 Q 4 ask a clearer question here. Hold on one second, Mr. Vargas. I'm going to go ahead and At some point did the conversation between you, Wayne Ball 5 6 and the defendant come to an end? 7 A Yes. 8 Q How did that conversation come to an end? 9 A The defendant instructed me to send the reports directly to 10 him once they were complete and not to send them to ASAC Jody 11 Warren. 12 Q 13 supposed to write at that point? 14 A False reports. 15 Q After the defendant walked out, did Wayne Ball walk out with 16 him or at the same time? 17 A 18 before him, but he walked out. 19 Q 20 defendant instructed you to send the reports directly to him? 21 A Yes. 22 Q Did you and Wayne Ball, after the defendant left or any time 23 in this immediate time in the conference room area, have any 24 independent conversation about this subject? 25 A And I said, "Yes, sir, I will do that." He walked out. What was your understanding of what kind of reports you were He walked out. I don't know if it was right behind him, Did -- and so we're clear, was Wayne Ball present when the No, not immediately after. I believe they walked out. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 137 of 344382 1 Q What did you do after they walked out? 2 A I sat there, sat back in my chair, and just realized what I 3 had just been told to do. 4 Q And what did you realize you had just been told to do? 5 A Lie. 6 Q What was going through your head at that moment? 7 A A lot of things. 8 didn't have it in me to -- as much as I thought and I knew 9 that -- I knew exactly what he had just told me to do and I knew 10 that it was wrong, but I was still on probation, and I knew that 11 if I didn't do it, I would be gone. 12 going on. 13 Q You said -- 14 A -- trying to find a solution. 15 Q You said a minute ago that you didn't have it in you. 16 were you referring to when you said you didn't have it in you at 17 that point? 18 A 19 it. 20 Q 21 ended? 22 A 23 Healey walked in, and he could tell that I was -- that I was 24 upset, something had just happened, and so I explained to him 25 pretty much what I just explained to the Court. My job, my family. I didn't have it -- I So I had a lot of emotions I was mad, disappointed -- What I didn't have it in me to tell him no, I'm not going to do What did you do after that meeting in the conference room I sat there by myself for a while. At some point Agent Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 138 of 344383 1 Q Did the two of you get out of the office? 2 A Yes. 3 agreed that we wanted to talk about it. 4 upset, and I didn't know who was listening or wasn't listening. 5 Conference room is by the break room. 6 defendant walked out. 7 here." I was venting. I was I didn't know if the I told him, I said, "I need to get out of I told him, "I need to get out of here. 8 9 And I told him that -- well, at some point we both see if we can get something to eat. Let's go. Let's go Let's just get out of 10 here." So he goes, "All right, man. Let's go." 11 Q Did you go get something to eat? 12 A Yeah, so we went to the Subway across the building. 13 Q When you said Subway, you mean the sandwich shop? 14 A Subway sandwich shop, yes. 15 Q Do you have any recollection as to what time of day this 16 was? 17 A It was still in the morning. 18 Q When you went to Subway, did you continue to vent with Agent 19 Healey? 20 A Yes. 21 Q What kind of things were you venting about? 22 A That I knew that what the defendant was telling me to do was 23 wrong, and I didn't want to do it. 24 didn't do it, you know, we're going back and forth, but you're 25 on probation. And that I knew that if I I mean, you're going to have to do it. You can't Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 139 of 344384 1 tell him no. You know how -- what's going to happen and, of 2 course -- so we were just trying to find a solution to it. 3 Okay. 4 Q 5 idea? 6 A Yes. 7 Q What idea was that? 8 A We agreed that we were going to go back in there and drill 9 Agent Ball, the guy that got me the job. What else can we do? It's like, well, I mean -- Did you come up with a solution during that lunch or an He was one of the 10 mentors in our office, the one who had agreed to sign the 11 paperwork. 12 Maybe we can bounce it off of him, and maybe he'll realize that 13 this is wrong. 14 Q Did you go back to the office? 15 A Yes, we went back. 16 our office, Agent Healey and I walked towards the break or 17 towards the conference room. 18 I went or I called Wayne or if Agent Healey called Wayne Ball; 19 but at some point shortly after we came back, Agent Ball, myself 20 and Kristofor Healey found ourselves sitting in the conference 21 room. 22 in the center of the conference table, and Agent Ball was to my 23 right. 24 Q 25 conference room? I told him: Let's go talk to Wayne, Agent Ball. As soon as we walked in the hallway of Somehow or other, I don't know if Agent Healey was sitting directly in front of me. I was And so we're clear at this point, was anybody else in the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 140 of 344385 1 A No. Just myself, Agent Healey, and Agent Wayne Ball. 2 Q What did you all talk about? 3 A We told -- 4 MR. EASTEPP: 5 THE COURT: Judge, I'm going to object to hearsay. Don't repeat conversations, but you can tell 6 the content. 7 can talk about the content of the conversation, the subject 8 matter. MR. COONEY: 9 10 If I may, I believe some of these -- we might be able to talk more specifically about some of these. THE COURT: 11 12 Don't repeat what anyone said, Mr. Vargas, but you Well, you may, but your question was, "What did you talk about," which is -MR. COONEY: 13 Certainly. I understand, Your Honor. 14 Thank you. 15 BY MR. COONEY 16 Q And so what subject did you talk about? 17 A Trying to find a solution. 18 Q Did you all talk about possible solutions to this? 19 A I told Wayne Ball this. 20 MR. EASTEPP: Judge, I'm going to object to hearsay 21 based on the ruling the Court made. 22 ruling I'm referring to that -- 23 THE COURT: 24 (At the bench) 25 I think you know which Y'all come up here. MR. EASTEPP: My objection is based on the Court's James Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 141 of 344386 1 ruling, that they've not established that there's any 2 conspiracy. 3 thinks he's being made to do something, and at best, but there's 4 not an agreement. 5 figure out what was said, which shows there's not an agreement. 6 Plus Kris Healey is a party to it, and he's not ever been 7 alleged to be a co-conspirator. 8 9 10 11 What he has said clearly throughout is that he And this conversation is they're trying to THE COURT: Well, I don't think -- do you have any authority that says a statement made in furtherance of a conspiracy has to be a secret statement? MR. EASTEPP: No, sir. But, I don't think they've 12 established that there is a conspiracy, so I'm asking that -- 13 the Court has not made a ruling yet pursuant to your James order 14 that you -- 15 THE COURT: Well, I made a ruling there was a 16 conspiracy. 17 what a statement was to see if it was in furtherance of the 18 conspiracy and then see if the conspirator was part of it. 19 mean, it was the other steps that I said I hadn't reached an 20 opinion on. 21 What I -- what I didn't say is I'd have to hear MR. COONEY: I If I may, Your Honor, I believe just as a 22 predicate matter, I think based on his testimony we've 23 established by a preponderance a conspiracy between Ball, 24 Pedraza and Vargas. 25 all any -- he's testifying about finding a solution and about And in this conversation, I think first of Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 142 of 344387 1 drilling Wayne Ball. 2 state of mind and Ball's state of mind. 3 on the testimony that's going to come out, that Ball's 4 statements will be in furtherance of the conspiracy because they 5 are to write them up. 6 I'll sign them." 7 8 9 THE COURT: Any statements made to Ball go to Vargas' And I anticipate based "I was there during that time period. Let me do this. (Open court.) THE COURT: Ladies and gentlemen, this may take a few 10 minutes. 11 take our lunch break, and I'm going to have you come back. 12 Let's be back about at least by ten after 1:00 so we can start 13 promptly at 1:15. 14 15 16 17 It's ten until 12:00 now. Why don't we go ahead and (Jury leaves courtroom) THE COURT: All right. Let's resolve this now outside the presence of the jury. Go ahead and sit down, agent. 18 THE WITNESS: Thank you, sir. 19 THE COURT: 20 MR. COONEY: 21 THE COURT: Wait, wait. 22 MR. COONEY: Pardon me. 23 THE COURT: Yeah. Stay here on the stand. Mr. Vargas, we're just going to -Before we -I'm sorry. Let me make a distinction here. I think -- 24 I think I know what the agent is going to say because of the 25 James hearing, but I'm not 100 percent sure, which is why I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 143 of 344388 1 excused the jury. There may be a distinction. And I'm not sure 2 that this was Mr. Eastepp's point, but there may be a 3 distinction of -- that has to do with this thing you're about to 4 go into. If someone -- if a conversation -- if the point of the 5 6 conversation is "I don't want to be a member of this 7 conspiracy," then I've got an internal problem saying that, 8 well, that's in furtherance of the conspiracy. Now, that would make -- may pertain to what Mr. Vargas is 9 10 going to say he said. Now, what did Mr. Ball say? And 11 depending on what the answer is, that may be in furtherance of 12 the conspiracy, and so that's why I went ahead and excused the 13 jury. 14 hear this outside the presence of the jury first. Instead of guessing what's going to be said, I wanted to So now go ahead, Mr. Cooney. 15 MR. COONEY: 16 I understand. Thank you. 17 VOIR DIRE EXAMINATION 18 19 BY MR. COONEY 20 Q 21 Healey and Agent Ball in the conference room. 22 when you went into the conference room, what did you all talk 23 about? 24 A 25 cannot be doing this. I want to talk about this conversation between you, Agent First of all, I started writing up the reports, and I told Wayne Ball we I told him: I'm writing up these Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 144 of 344389 1 reports. I'm making updates, and I'm putting your name all over 2 them. 3 day or on a TDY? How do we know whether or not you were on vacation that I was giving him examples of that. At the same time as I'm saying that or simultaneously Agent 4 5 Healey is also telling him: If this goes to court in two years, 6 are you going to go and testify that you did these things that 7 Robert is writing you did? 8 another during that conversation, we were telling Agent Ball: 9 This is fucked up. Because it's at some point or We cannot be doing this. 10 Q How did Agent Ball react to that? 11 A Agent Ball's reaction -- Agent Ball's reaction was he stood 12 up off the chair, he looked at both of us, and said, "Fuck you, 13 and do it." 14 Q What did you understand him to mean when he said, "Do it"? 15 A Follow the orders that you were given. 16 senior agents in that office. 17 me the job. 18 expecting us to do it. 19 Q And just yes or no. 20 A Yes. 21 22 I took it as: MR. COONEY: He was one of the He was a mentor of mine. Boss wants you to do it. You do it. After that, did you do it? I don't think I have any further questions -- 23 THE COURT: 24 MR. COONEY: 25 THE COURT: All right. -- on this particular. Your objection, Mr. Eastepp? He got He's Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 145 of 344390 MR. EASTEPP: 1 It's hearsay. That it can't be of no 2 moment. Kris Healey is both a non-conspirator and a federal 3 agent at the moment that he's hearing this conversation, meaning 4 there's a police officer right in the middle of this thing. 5 MR. COONEY: 6 THE COURT: 7 MR. EASTEPP: 8 THE COURT: 9 known and unknown? 10 MR. COONEY: Your Honor -Maybe he's a conspirator. They've certainly never said that. I don't think -- doesn't the indictment say Yes, it does. I only -- I don't mean to 11 interrupt Your Honor. 12 conversation we should have outside the presence of Mr. Vargas. 13 I'm prepared to keep going. 14 THE COURT: I'm just wondering if this is a I just want to -- I don't think there's any law that I've ever 15 seen that says there can't be someone that overhears a 16 conversation between conspirators. 17 objection, his presence there, I'm overruling it. 18 So to the extent that's an I'm overruling the objection to hearsay, the statements by 19 Wayne Ball and by Mr. Vargas, his own statements, because 20 ultimately those are in furtherance of the conspiracy and made 21 by conspirators. 22 conspiracy and that the defendant was involved in it. 23 24 25 And I've already found that there was a Now, I'm sustaining the objection to the statements of Mr. Healey. MR. COONEY: May I -- I don't want to go behind your -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 146 of 344391 1 2 3 4 I understand your ruling, but may I make a comment? THE COURT: But if you got a reason that Mr. Healey's statements come in, tell me now. MR. COONEY: Certainly. I don't believe any of 5 Mr. Healey's statements prove the fact of any matter. 6 not -- there is no truth for their assertion. 7 assertions. 8 Wayne Ball to say: 9 Who knows who's going to find out. They're not stating facts. They are They are simply He is drilling into You can't do this because you weren't here. Are you going to testify 10 about this? 11 establishes his state of mind and his understanding of the 12 agreement. 13 And Wayne Ball's reaction is telling because it But they don't come in for any truth of any matter asserted. 14 They come in only to provide context of the conversation and an 15 understanding of Wayne Ball's reaction to it. 16 behind those -- I mean, no matter asserted behind those. 17 THE COURT: I don't see that. There's no truth I mean, I do see what 18 you're saying; but, I mean, they're not -- I mean, my problem is 19 they're not probative of anything. 20 MR. COONEY: 21 THE COURT: Oh, but I think they are probative of -I mean, here's -- obviously here's what, you 22 know -- I mean, there's totally a way -- I mean, he doesn't have 23 to repeat the statements of him. 24 Healey questioned whether we should do this or not. 25 MR. COONEY: I agree. What did Mr. Healey do? I mean, I don't dispute that I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 147 of 344392 1 can essentially get this -- deal with this without Healey's 2 specific statements, but I -- that's part of the point, I think. 3 4 5 6 THE COURT: Healey's statements are out. and Mr. Ball's statements are in. MR. COONEY: And if he were to testify, though, before the jury that -- 7 MR. EASTEPP: 8 MR. COONEY: 9 Mr. Vargas' Who is "he"? He being Mr. Vargas, I'm sorry, that -- just so I'm clear on the scope of the ruling, that Healey was 10 protesting doing this or saying he can't do this, is that also, 11 or is that kind of -- 12 THE COURT: 13 MR. COONEY: 14 THE COURT: 15 16 17 I think he can say that Healey protested. And then we just leave it there. Okay. Let's take a lunch break. Let's be back 1:05 or so. MR. COONEY: Thank you, Your Honor. (Recess taken from 11:59 to 1:09.) 18 THE COURT: 19 MR. COONEY: 20 to raise one issue. 21 THE COURT: 22 MR. COONEY: All right. Counsel, are we ready to go? We are ready, Your Honor. We just wanted Okay. Which is this issue about the videotape. 23 We have Agent Green present, and he hopes to be able to return 24 to Houston tomorrow afternoon, early in the afternoon, so it is 25 our hope we can resolve that issue either later this afternoon Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 148 of 344393 1 or tomorrow morning. 2 is something that's going to be done outside the presence of the 3 jury, perhaps the next break would be an opportunity to do it. THE COURT: 4 5 I just raise it because I think if there Why don't we shoot for late this afternoon on that. 6 MR. COONEY: 7 THE COURT: 8 MR. COONEY: 9 THE COURT: Thank you. All right. Otherwise we're ready. Just to make the ruling I said before we 10 broke for lunch clear -- I think I made myself clear -- but if I 11 didn't, I did not find Kristofor Healey to be a co-conspirator. 12 So I don't know if that affects anything that's going to happen 13 later in that trial or not, but I don't want y'all to assume I 14 did that, because I did not. 15 All right. Can we have the jury? 16 Would you have Agent Vargas come back here? 17 (Jury enters courtroom) THE COURT: 18 All right. Ladies and gentlemen, be seated. 19 Agent Vargas, if you'd be seated. 20 Go ahead, Mr. Cooney. MR. COONEY: 21 Thank you, Your Honor. 22 BY MR. COONEY 23 Q 24 the lunch break. 25 that took place between you, Agent Healey and Agent Ball in the Mr. Vargas, I just want to pick up where we left off before And you were testifying about a conversation Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 149 of 344394 1 conference room after your lunch at Subway with Agent Healey. 2 Is that -- have I set us right in terms of where we left off? 3 A I believe so. 4 Q During that conversation between the three of you, again, to 5 go back where we left off, what was the subject? 6 A 7 instructed to do and what he had agreed to do was wrong. 8 Q 9 this? The subject was to convince Agent Ball that what I was What did you say to Agent Ball to try to convince him of 10 A He was sitting to my right, and I was sitting in front of my 11 laptop just like I am here in front of this screen. 12 him: 13 ordered us to or ordered me to. Okay. I said: 14 And I told I'm going to write these reports just like he's Now, this one in particular, I'm making up a date. 15 How do I know, how do you know when you signed this that you 16 were not on vacation or that it wasn't a Saturday or that you 17 weren't TDY somewhere? 18 THE COURT: 19 THE WITNESS: 20 TDY is? They can get sent to another station to assist. 21 THE COURT: 22 THE WITNESS: 23 BY MR. COONEY 24 Q 25 TDY is temporary duty, sir. Okay. Just being absent from the office. Thank you. Did Agent Ball have any response to this? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 150 of 344395 1 A The only response after that discussion to me was he stood 2 up, he looked at me, he looked at Agent Healey, and he said, 3 "Fuck you. 4 Q After he said that, what did he do? 5 A He walked out. 6 Q What did you understand Agent Ball to mean when he told you, 7 "Do it"? 8 A 9 sign them. Do it." Follow the orders, falsify those records, and he's going to 10 Q Did you do that? 11 A Yes. 12 Q Why did you do that? 13 A To not lose my job. 14 Agent Ball, being with the background that we had, he would 15 agree. 16 defendant, and I was hoping that he would hear my side and he 17 would go and talk to the defendant and say: 18 can't be doing this. We were out of options. I was hoping And, you know, he had a lot of respect from -- from the Hey, you know, we But it was complete opposite, and my options were exhausted. 19 20 And I knew that if I didn't do it, I was going to lose my job 21 because I was on probation. 22 Q 23 drafting these reports? 24 A Yes. 25 Q How did you go about doing that? I did it out of fear. After Agent Ball left the room, did you actually go about Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 151 of 344396 1 A I had testified earlier about drafts that I had already 2 wrote after the case had been assigned to me. 3 finalized them or submitted them, but they were drafts that -- 4 of the activities that I had done. 5 drafted. 6 dates, and I put Agent Ball's name on -- on them. 7 the gaps as he instructed me to. 8 Q Are those the gaps between March of 2010 and June of 2011? 9 A Yes. I just had not All I did was use what I had All I did was change my name, Agent Healey's name, the And I covered And once I finished that, I believe I finished it that 10 same day; if not, the following. 11 them to the defendant with an attachment of all the reports. 12 believe there was four or five of them. 13 I sent them to him, he sent them back to me with the changes, 14 edits. 15 Q 16 you, but what kind of changes or edits did the defendant make or 17 suggest to your drafts? 18 A 19 didn't even look at them. 20 Q How did he provide you those changes or edits? 21 A He sends back the email I sent back with the attachments, 22 and on the body of the email, it reads, "See edits," so I know 23 that he made some changes to the reports. 24 25 What kind of -- I apologize. I submitted them. I emailed I And a short time after I didn't mean to interrupt At the time when it happened when he sent them back, I I opened -- the software that we have on our computers, it has a feature there where you can hit a function key, and it Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 152 of 344397 1 will accept all the changes. Now, you can go, and if you're 2 interested, you can see what he changed. 3 investigators who want to see what kind of changes he made so 4 that way they know what to expect in the future. 5 particular case, I didn't even care. 6 Q 7 edits from the defendant prior to this in other reports that you 8 had written? 9 A Yes, I believe so. 10 Q Are you able to see those edits electronically in the 11 document? 12 A Yes. 13 Q Is that feature called track changes? 14 A I believe so. 15 Q After you accepted the edits to the documents, what did you 16 do with them? 17 A 18 whether it was that same email or a different email, I sent a 19 statement in the email stating that one of the reports -- all 20 the reports that were falsified had Wayne Ball's name on the 21 signature block with the exception of one. 22 Kristofor Healey's, which was the interview that he had 23 conducted some time back with Camillo. 24 Q Was that a true and accurate report? 25 A That report was written based off of information that was There's a lot of But in this Well, were -- on a typical basis, had you ever received I'm not sure. I sent them back to him, and I believe I sent them -- It had my partner, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 153 of 344398 1 given to me by Agent Healey, so that was true. So when I sent 2 the emails back with the edits approved, I wrote, "One of the 3 MOAs should be signed by Agent Healey," which would mean that 4 it's going to have Agent Healey's name on the signature block. 5 Q Why did you write that Agent Healey should sign that report? 6 A Because that wasn't anything we had discussed. 7 nothing to do with the false reports. 8 Q 9 particular activity? It had Was it because Agent Healey had participated in that 10 A Yes. 11 Q Was that the FBI meeting that you testified about that 12 Healey had told you about occurred in the Manny Peña case? 13 A Yes. 14 Q After you sent those memoranda back to the defendant, do you 15 have any recollection of ever working with them again? 16 A 17 remember exactly when it was. 18 Q Did you sign any of those reports? 19 A No. 20 Q Now, so that we're clear about the content of the reports 21 that were false, you said that you used memoranda that you had 22 already drafted based on activity that you had conducted. 23 have that right? 24 A Yes. 25 Q The activities that you put in the false report, did those No. At some point I put them in my work file. I don't Do I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 154 of 344399 1 activities actually happen? 2 A Not during those dates. 3 Q That's what I want to assure that there's clarity about. 4 Regardless of the date, did the activity described in the 5 reports that you drafted, did the activity occur? 6 A By the agent that signed it, or you mean just in general? 7 Q Just -- 8 A Because the activity I did do. 9 did do what was written on those reports. Kris -- Agent Healey and I 10 Q Did Wayne Ball do any of that activity? 11 A Not to my knowledge, no. 12 Q Did the activity -- did the dates that you provided for the 13 activity, were those true dates? 14 A No. 15 Q So to be clear then, what was false was first who 16 participated in the activity; is that right? 17 A Yes. 18 Q And second, the dates of those activities? 19 A Yes. 20 Q And again, how did you select the dates? 21 A I just made them up. 22 Q With what objective? 23 A I just stretched them out like he instructed me to. 24 started from March 10th, and I -- I don't even recall the dates, 25 to be honest with you. I I just think I went maybe three or four Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 155 of 344400 1 months. I just made up random dates. 2 Q 3 of 2010 and June 2011? 4 A That's correct. 5 Q Did you understand that what you did was wrong? 6 A Yes. 7 Q Did you make any reports about that activity to anyone? 8 A Yes. 9 Q Who did you report it to? 10 A I reported it to one of the inspectors involved in the 11 inspection that took place two weeks or approximately two weeks 12 after this took place. 13 preparing for, I reported it to the inspector. 14 Q What inspector did you report it to? 15 A James Izzard. 16 Q About how long after you falsified these memoranda was it 17 before you reported the activity? 18 that it had occurred. 19 it and the actual inspection approximately? 20 A Two weeks. 21 Q Between the time that the defendant had instructed you to 22 falsify these memoranda and the time of the inspection, did you 23 report it to anyone else? 24 A No. 25 Q What about Agent Healey? Was that intended to fill the gap of activity between March I mean, the inspection that we were Excuse me, that you reported What was the period of time between doing Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 156 of 344401 1 A Oh, well, yes. I mean, I told him at Subways. 2 Q But then did you report it to any other supervisor? 3 A To Wayne Ball. 4 Q Other than who you've testified about, Agent Healey or Agent 5 Ball, did you report it up to anyone? 6 A No, not that I recall. 7 Q Why not? 8 A I was new. 9 Q And just so -- also so we're clear, when you reported it to I mean, I -- he's -- I didn't know who to report it to. 10 James Izzard -- actually I'm sorry. 11 few other questions. I mean -- Let me back up and ask a Prior to the inspection, did you give any thought about 12 13 whether you should report it during the inspection? 14 A 15 the inspection. 16 still didn't really have much of a leg to stand on. 17 probation. 18 agent in charge of a field office, and I knew that -- well, I 19 felt that I didn't have much -- much leverage on reporting it. 20 I mean, I was confused. 21 some point I was going to have to report it. 22 23 Yes. Agent Healey and I -- we discussed reporting it during However, I knew that by doing that, that I I was the new guy. MR. EASTEPP: The defendant was a special I knew that it was wrong. THE COURT: 25 MR. COONEY: I knew at Judge, I object to the narrative answer of the question. 24 I was on Sustained. I'm sorry, Your Honor. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 157 of 344402 1 THE COURT: 2 MR. COONEY: Go ahead. Just reask your next question. I understand. 3 BY MR. COONEY 4 Q 5 Izzard, had you made any decision in your own mind about whether 6 you were going to report it to him? 7 A 8 was asked, that I knew I was going to have to report it. 9 Q So then prior to actually meeting with the inspector, James I had not made up my mind; but I knew that if the question Did you meet with Mr. Izzard in the ordinary course of the 10 inspection? 11 A Yes. 12 Q About how long did you meet with him? 13 A It was at the very end of the day, I would imagine 4:45 or 14 so, for about an hour. 15 Q All right. 16 A I don't remember, but I know it was the end of the day. 17 was the last one. 18 Q Where did that meeting occur? 19 A In Agent Ball's office. 20 Q Was Agent Ball present during that meeting? 21 A No. 22 Q Was anybody else in the room other than you and Mr. Izzard? 23 A No. 24 Q In fact, was Agent Ball present at all during the 25 inspection? I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 158 of 344403 1 A No. 2 Q Where was Agent Ball? 3 A I believe he was sent to some supervisory seminar. 4 Q Now -- 5 A Arizona. 6 Q During that meeting with Mr. Izzard at DHS, what kind of 7 topics did you talk about? 8 A 9 office; that I was the new hire. I'm not -- he was out of state. Well, he knew that I was the baby, if you will, of the He -- he was asking me a lot 10 of questions about myself, my background, where I worked. 11 you know, he found it very interesting. 12 common. And, We had some things in So it was a very informal conversation. At some point in the conversation, he had asked me if I had 13 14 ever witnessed or if I was aware of any favoritism in the 15 office, things like that, you know. 16 Q 17 about what had happened in the conference room? 18 A No. 19 Q Why not? 20 A I didn't know if he was going to be the right person to 21 report it to. 22 I had never gone through an inspection. 23 didn't really -- didn't even know whether or not he was part of 24 our agency, so I didn't -- I didn't -- just out of fear, I 25 guess. At any point during that meeting, did you tell Mr. Izzard I was still worried for my job. I didn't know -- I didn't know -- I I just -- the truth is I was waiting to finally get off Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 159 of 344404 1 of probation. I was just trying to get through my probation 2 before I reported it. 3 didn't know if he was going to be the right person to report it 4 to. 5 Q 6 should say? 7 A 8 duty hours, I believe. 9 I left the office, drove back to my house in Harlingen. But to answer your question, I -- I When did you report it to Mr. Izzard or Agent Izzard, I That evening after we terminated the interview. It is after We didn't realize we had gone that long. And 10 late in the evening, 9:30, 10:00, I received a call on my work 11 cell phone. 12 Q Who was that call from? 13 A Inspector Izzard. 14 Q Now, had you and Mr. Izzard ever met prior to this 15 inspection? 16 A No. 17 Q Did you have any kind of a friendship? 18 A No. 19 Q Had you ever received a cell phone call from him before? 20 A No. 21 Q Why did he call? 22 A He told me that -- that our interview was cut short. 23 Obviously we were talking about so many different things, and he 24 apologized and said I didn't finish my series of questions. 25 have some other questions I needed to ask you. And -- I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 160 of 344405 1 Q Did he ask you any questions during that phone conversation? 2 A Yes, he asked me a question, had I ever been asked to do 3 anything I believe it was unethical, illegal, such as 4 fabricating or making up reports? 5 Q How did you respond? 6 A I told him yes. 7 had. 8 Q Were you surprised to get the phone call from Mr. Izzard? 9 A Yes. 10 Q What was going through your head when he asked you that 11 question? 12 A 13 going to change in my life. 14 this had gotten out for him to ask me that question, or someone 15 else had also been subjected to it. 16 Q During that conversation -- 17 A And -- 18 Q -- did Mr. Izzard give you any -- or, excuse me, Agent 19 Izzard give you any instructions or directions about anything to 20 do? 21 A I took a deep breath, and I told him yes, I A lot of things. I knew that -- that at some point He told me -- 22 MR. EASTEPP: 23 THE COURT: 24 MR. COONEY: 25 I knew that -- I knew that things were instruction. Judge, I'm going to object to hearsay. Sustained. Your Honor, I would be fine with a limiting I'm not offering this for the truth of the matter Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 161 of 344406 1 asserted, but to explain what's going to happen over the course 2 of the next several hours. 3 THE COURT: 4 MR. COONEY: And these are Izzard's -I could also -- I could ask a series of 5 "did" questions I think to just get us there, if that's all 6 right. 7 THE COURT: 8 MR. COONEY: 9 All right. Do that. Thank you. BY MR. COONEY 10 Q Mr. Vargas, during your phone conversation, did Agent Izzard 11 instruct you to write a report or a summary concerning what had 12 occurred with respect to the falsification of the memoranda? 13 A 14 told him that I -- I had been instructed to falsify records, and 15 I went through the entire story of what I've testified to. 16 He -- 17 Q Did he essentially -- 18 A -- told -- 19 Q Did he essentially tell you to write it up? 20 A Yes. 21 Q Okay. Yes. I told him -- after he had asked me that question, I He told me, "I'm going to need you to document." I'm sorry. THE COURT: 22 I don't mean to interrupt you, but -- Don't repeat things he told you. 23 BY MR. COONEY 24 Q 25 do that the next morning? Right. And then, Agent Vargas, did he -- did you agree to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 162 of 344407 1 A Yes. 2 Q Did you go about doing that? 3 A Yes. 4 Q All right. 5 Izzard ended, were you able to go to sleep that night? 6 A No. 7 Q Did you go about writing up what had occurred for Agent 8 Izzard the next day? 9 A Yes. 10 Q Where did you go the next day? 11 A Brownsville DEA office. 12 Q Why to the Brownsville DEA office? 13 A It just made sense. 14 I believe we had been instructed to resume normal duties after 15 your interview, so we had no reason to go back to McAllen. 16 Q 17 DEA with you? 18 A Yes. 19 Q When you saw Agent Healey the next morning, did you tell him 20 about the phone call you had received? 21 A Yes. 22 Q Now, when you got to the Brownsville DEA's office that 23 morning, what did you do? 24 A 25 instructed to falsify. Now, after your phone conversation with Agent I mean, that's where we had been going. When you say "we," did anybody else go to the Brownsville My partner, Agent Healey. I made copies of the -- I made copies of the MOAs that I was I retrieved them from -- from the -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 163 of 344408 1 from the laptop, and I attached them to an email just like I did 2 with the defendant. 3 statement of what we discussed. 4 of -- of what took place in the conference room, and I also 5 forwarded him the emails that I had sent to the defendant the 6 day that -- 7 Q While you were doing that, did you receive any phone calls? 8 A Yes. 9 Q Who did you receive a phone call from? 10 A The defendant. 11 Q Approximately what time did you receive a phone call from 12 the defendant? 13 A 14 Inspector Izzard. 15 9:15, 9:30. 16 Q What did the defendant tell you when he called you? 17 A He said -- he asked me, "Where are your cases?" 18 they're with me. 19 Q How did he respond to that? 20 A He said, "I need them." 21 Brownsville. He said, "Okay. 22 him, I said: Okay. 23 he hung up. 24 Q 25 referring to? And I wrote -- I provided him with a I went through the details Shortly after writing -- starting to write the statement for I would venture to say it was around 9:00, It was right after I got there. I told him: Okay. I need them." I told him You know I'm in I explained to I'll get them to you as soon as I can, and And when you say that you had them, the cases, what are you Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 164 of 344409 1 A My work cases. 2 Q Your work files as opposed to the final case files; is that 3 right? 4 A Yes. 5 Q Now, what was the defendant's tone during this phone 6 conversation? 7 A It was very short. 8 Q What do you mean by short? 9 A Just didn't greet me or didn't ask me what my plans were. 10 He was just very short. You could tell he was agitated, I 11 guess. 12 Q Did you receive any other phone calls that morning? 13 A Yes. 14 on or -- with respect to what I reported to Inspector Izzard, 15 but I was still trying to finish the statement for Inspector 16 Izzard as he had ordered me to. He was -- he made it clear to me he needed my cases. After that phone call, I knew that something was going After that phone call, I would imagine ten to 20 minutes 17 18 after, I received another phone call from the defendant. 19 Q What did the defendant say to you during this phone call? 20 A Same thing he said on the first one. 21 my cases, asked me where I was at. 22 Brownsville. 23 for the inspectors and that I would not be able to head to 24 McAllen until after I finished that. 25 Q He told me he needed I said I'm still in And then I informed him that I was doing something How did he react to that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 165 of 344410 1 A He said -- he asked me, "What do you mean? 2 you're writing something for them?" 3 was -- I was instructed not to talk to anybody about it and that 4 I was to get that done first thing in the morning. 5 As soon as I get it done, I'll head over there with the cases. 6 I said: 7 bit. 8 Q 9 you not to discuss the subject with anyone? I'm almost done. And just yes or no. What do you mean And I told him that I I told him: I'll be finishing up here in a little Had Agent Izzard, in fact, instructed 10 A Yes. 11 Q What was the defendant's tone during this second phone 12 conversation? 13 A The same. 14 Q Did you receive any additional phone calls that morning? 15 A Yes. 16 Q From who? 17 A Defendant. 18 Q What did the defendant say to you -- excuse me. 19 after the second phone call did this phone call come from? 20 A Another ten, 20 minutes. 21 Q What did the defendant say to you during this phone call? 22 A He told me that he really needed my cases and that he was 23 going to send Agent Flores, who was another agent in our office 24 assigned to the -- he works out of the McAllen office. 25 me, "I need your cases. It was short. It was agitated. How long He told I'm sending" -- refer to him as J.R. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 166 of 344411 1 He says, "I'm sending J.R. over there to pick them up, so get 2 them ready." 3 Q What was his tone during this phone conversation? 4 A The same. 5 Q How far again is it from Brownsville to McAllen? 6 A An hour. 7 Q Had you ever received an instruction from the defendant to 8 report immediately from Brownsville to McAllen before? 9 A Not that I can recall. 10 Q After the defendant informed you that he was sending Agent 11 Flores to pick up your cases, what did you do? 12 A I told him okay. 13 Q Did Agent Flores come get your cases? 14 A What happened was about that time after the third call, I 15 had already pretty much wrapped up the statement for Inspector 16 Izzard. 17 J.R., on my cell phone and told him: 18 call from the defendant. 19 come over and pick up my cases. 20 I needed to do. 21 can head over there and drop them off myself. 22 Q 23 conversation? 24 A 25 out of the office. Hung up. I had just sent it off. So I called Agent Flores, Hey, listen. I just got a He's telling me that you're going to I told him I'm done doing what There's no need for you to come over here. I What did the two of you all arrange to do during that phone Agent Flores told me: No, no, no. He goes: I need to get You don't know what's going on here. He Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 167 of 344412 1 goes: I don't mind going over there. 2 out of the office. And I told him: 3 So he goes: I'm already I'm starting to head that way. You know what? 4 way. 5 meet in Mercedes, which is the county line for Cameron County, 6 so... 7 Q Where in Mercedes did you meet? 8 A The Whataburger parking lot. 9 Q What did you do when you got to the Whataburger parking lot? 10 A I -- I knew that -- well, I felt that was going on with all 11 this, he wanted my case files, and based on what I had reported 12 to Izzard the following evening, I knew it had something to do 13 with that Manny Peña case which I still had. 14 everything -- I put all my cases in a bin, and I took out that 15 particular case and I scanned through it, make sure what was in 16 there. 17 it didn't -- you know, if I have originals -- excuse me. 18 weren't originals. 19 copies are in here, the originals are in the -- in the -- in the 20 other folder, the ones that stay locked in our office. 21 We're in Brownsville. I'll just meet you half He's in McAllen. I said we'll just I put And then everything that was in there were originals, so They were copies. They So I knew that if the But what I did do is I presented the case -- my work case to 22 Agent Healey because we have a -- were able to maintain our 23 original notes. 24 case, and they were -- I checked to make sure they were still in 25 there. I had taken some notes with regards to that I opened up the manila folder and I showed them to Kris, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 168 of 344413 1 said: Listen, these are original notes of mine. They're in 2 here. I'm going to put them back in here just so that you know 3 so when I get this back, if it's gone. 4 couldn't understand why, why he wanted my cases. 5 it, and then Agent Flores showed up. 6 Q Did you give the cases to Agent Flores? 7 A Yes. 8 Q Had you ever been asked by the defendant to provide all your 9 working files to him before? Because at that point I So Kris saw 10 A No. 11 Q After you gave your cases to Agent Flores, what did you do? 12 A Well, at that point it was certain to me that -- that the 13 cat was out of the bag. 14 was doing something over there in our office based on what I 15 told him the following evening. 16 I knew already that Inspector Izzard And I had a headache and I was frustrated because I'm trying 17 to write a statement to the inspector, who I just pretty much 18 put my career and livelihood in his hands. 19 satisfy him with what he's ordering me to do, and at the same 20 time, I'm trying to juggle getting these cases to the defendant, 21 my boss at the time. 22 overwhelming. 23 So I was frustrated. I'm trying to I was -- it was just So we got back in the vehicle, started heading back toward 24 Brownsville from Mercedes. And it was some point during that 25 commute back that I told Agent Healey, I was like: I'm done. I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 169 of 344414 1 said: I'm done with this. I said: It's out of my hands. 2 There's nothing I can do. 3 today or any day after this. 4 to call the defendant. 5 Q Did you call the defendant? 6 A Yes. 7 Q What happened when you called the defendant? 8 A I called him for two reasons. 9 wanted him to know that I no longer had my cases and I had There's no way I can be productive And I told him, I said: I'm going No. 1, I called him because I 10 relinquished them to Agent Flores and that they were en route 11 back to him to McAllen. And the second reason I called him was to ask to take the 12 13 rest of the day off because there's no way that I was going to 14 be able to go back to Brownsville. 15 Q How did he react to this? 16 A Well, he wasn't happy. 17 what do you mean? 18 that point I was already frustrated. 19 don't care what you give me. 20 anymore today. 21 day off. I mean, his response was: What do you want, emergency leave? Well, And at I told him, I said: I I just don't want to be at work And somehow we agreed. He said okay. Take the Take the rest of the day off. 22 And Agent Healey -- my government vehicle was still in 23 Brownsville, so we went all the way back to Brownsville, and I 24 got in my vehicle and I left. 25 Q After this occurred, did you do anymore work on the Manny Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 170 of 344415 1 Peña case? 2 A No. 3 Q Why not? 4 A Because I didn't have the case. 5 work on it. 6 Q What do you mean by tainted? 7 A There were reports in the case that were false, and I 8 reported it. 9 Q It made no sense to do any The case was tainted. Why did that prevent you from doing any additional work on 10 it? 11 A 12 allegation in the future, that there's a very good chance that 13 those false records were going to come to light. 14 have been thrown out anyways. 15 Q 16 that you made to Mr. Izzard, did Special Agent Dave Green come 17 to McAllen to be essentially a supervisory agent? 18 A Yes. 19 Q At some point did you reveal to Agent Green soon after he 20 took that position what had occurred? 21 A Yes. 22 Q After that were you ever approached by the FBI and asked 23 questions about this subject? 24 A Yes. 25 Q When were you approached? Because I knew that if -- if I was able to substantiate the Now, just yes or no. The case would At some point following this report Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 171 of 344416 1 A I believe it was in January 2012. 2 Q After you met with the FBI that day -- oh, and actually just 3 yes or no. 4 January 2012? 5 A To the FBI? 6 Q To the FBI. 7 A No. 8 Q Subsequent to that, did you receive a subpoena to appear 9 before a grand jury in Washington, D.C.? Did you answer questions that day on -- in 10 A Yes. 11 Q Approximately when did you receive that subpoena? 12 actually hold on. Or Let me back up. Approximately when did you appear before the grand jury? 13 14 A The following month, February 2012. 15 Q Do you remember the exact date of your grand jury 16 appearance? 17 A No. 18 Q Are you certain of the exact date? 19 A No. 20 Q If I were to show you a copy of your grand jury transcript, 21 might that refresh your recollection as to the exact date that 22 you appeared before the grand jury? 23 A Yes. MR. EASTEPP: 24 25 I believe it was the 10th, 11th. 2012. Judge, we'll agree it was February 10th of Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 172 of 344417 MR. COONEY: 1 It's an undisputed fact then. 2 BY MR. COONEY 3 Q So then can we agree it was February 10, 2012? 4 A Sounds good to me. 5 Q All right. 6 status with the Department of Homeland Security while you were 7 in Washington, D.C. -- 8 A Yes. 9 Q -- appearing before the grand jury? 10 A Yes. 11 Q What did you learn? 12 A Agent Ball sent us -- sent me a text message that -- that 13 the defendant had been put on administrative leave. 14 Q 15 questions about your FBI meeting. February 10th. Did you learn anything about the defendant's Now, backing up. Frankly, I forgot to ask you one or two Backing up to that date in January 2012. 16 After you were 17 approached by the FBI and asked questions about what had 18 occurred, did you tell anyone in DHS-OIG about it, about the 19 fact that you had been approached by the FBI? 20 A Yes. 21 Q Who did you tell? 22 A Immediately after I walked out of the FBI office, I jumped 23 in my GOV truck, got on my work cell phone, and contacted 24 Special Agent Dave Green, who is the acting supervisor of the 25 office. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 173 of 344418 1 Q After you revealed that information to Dave Green, did you 2 ever reveal that to any other supervisor in DHS-OIG? 3 A 4 they wanted to talk about the inspection. 5 prepared to talk to them about it. 6 Q 7 Dave Green? 8 A Yes. 9 Q Who? 10 A Special agent in charge Kirk Beauchamp. 11 Q Did you tell Agent Beauchamp then after he contacted you 12 about having been contacted by the FBI? 13 A Yes. 14 Q And were any other DHS-OIG agents with you when the FBI 15 first made contact with you in January 2012? 16 A Agent Healey. 17 Q When approximately were you placed on administrative leave? 18 A Approximately three months after that, May 2012. 19 Q After you were placed in administrative leave -- and 20 actually just yes or no, Agent Vargas, so we're clear here. 21 When you appeared before the grand jury on February 10, 2012, 22 did you provide testimony along the same lines that you have 23 provided today? 24 A Yes, yes. 25 Q Subsequent to being placed on administrative leave, just yes He told me -- he asked me what they want, and I told him I told them I wasn't Did anybody from DHS-OIG contact you after you spoke with Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 174 of 344419 1 or no, did you meet with prosecutors from the government again? 2 A Yes. 3 Q During one of those meetings, did you enter into any 4 agreements or an agreement with the government? 5 A Yes. 6 Q What was that agreement? 7 A I was told that there wouldn't be any repercussions to me if 8 I continued to say the truth. 9 reason to lie to you guys. I told them I have no other So there was an understanding that I 10 wouldn't have any charges filed against me as long as I continue 11 to say the truth. 12 I said, "That won't be a problem." 13 Q Well, let me -- before you start -- 14 A Okay. 15 Q -- talking about what you were asked, let me just ask you 16 directly. 17 would be no charges, do you mean that you were told you would 18 not be prosecuted for any criminal offenses arising from what 19 you've testified about today? 20 A Yes. 21 Q Do you have any obligations under that agreement? 22 A Just to say the truth. 23 Q What happens to that agreement if you fail to tell the 24 truth? 25 A And I told them -- I told the attorneys then, They asked me -- When you say there would be no repercussions or there I could be prosecuted. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 175 of 344420 1 Q Could you be prosecuted for the exact offenses that you've 2 testified about today? 3 A Yes. 4 Q And as part of that agreement, is part of that agreement 5 that you must have revealed all the information that you know 6 about concerning these criminal offenses? 7 A Yes. 8 Q Have you fulfilled that obligation? 9 A Yes. 10 Q Is that agreement memorialized in writing? 11 A Yes. 12 Q The agreement with the government is memorialized in 13 writing? 14 A 15 testimonies. 16 Q What kind of agreement do you have with the government? 17 A Verbal. 18 Q Were you given the opportunity to write that agreement down 19 on paper rather than just have a verbal agreement? 20 A Yes. 21 Q Why did you decide that a verbal agreement was okay? 22 A Because I felt I was doing the right thing. 23 reporting it, I was doing the right thing. 24 was told that if I wanted to get it in writing, that I would 25 have to have an attorney to witness it. Oh, excuse me. I thought we were talking about the No. You know, by I really didn't -- I I didn't see a need to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 176 of 344421 1 get an attorney. I knew that as long as I continued to say the 2 truth, I would be okay, so I didn't want to go pay for an 3 attorney. 4 Q 5 in any additional criminal conduct going forward from this 6 point? 7 A Yes. 8 Q If you were to commit any other crime in the future, could 9 the government go back and prosecute you for offenses arising Is another part of that agreement also that you not engage 10 from what you're testifying about today? 11 A Yes. 12 Q Now, is anything about your employment with DHS-OIG part of 13 this agreement? 14 A No. 15 Q After this case concludes, is it correct that a decision 16 will be made about whether you can go back and work at your 17 agency or whether you'll be terminated? 18 A I'm sorry? 19 Q Is it possible that for what you're testifying about today, 20 you could ultimately lose your job with the Department of 21 Homeland Security? 22 A Yes. 23 Q Have any promises been made to you by prosecutors from the 24 government about your employment? 25 A No. Ask me again. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 177 of 344422 1 Q 2 word for you with DHS if you testify at trial? 3 A No. 4 Q Have any of the prosecutors you met with have authority to 5 rehire you with DHS? 6 A No. 7 Q Are any of the prosecutors that you've met with even 8 employed by DHS? 9 A Not that I'm aware of, no. 10 Q Just so we're clear, do I have anything to do with whether 11 you're going to get your job back? 12 A No. 13 Q Does Mr. Kidd seated at counsel table have anything to do 14 with whether you're going to get your job back? 15 A No. 16 Q All right. 17 of exhibits here. 18 Exhibit 1A, which has previously been admitted into evidence. 19 And actually while Mr. Starnes is setting that up, let me 20 Have any of the prosecutors told you they'll put in a good Agent Vargas, I'd like to walk through a handful If we could start with Government's just ask you a few more questions about Agent Green. After Agent Green joined the McAllen office as kind of a 21 22 supervisory agent, did you ever participate in any file reviews 23 or case reviews with him? 24 A Yes. 25 Q Just briefly, what did that entail? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 178 of 344423 1 A He set up an -- a meeting with me in the office and informed 2 me to bring all my cases, which I did. 3 through each individual case, asked me what the current status 4 was of each case. 5 asked me what my next steps were. 6 was planning to do, at which point I asked him what is this for? 7 He said this is a case status review. 8 it was. 9 Q He sat down. We went And I answered his questions, and then he And I explained to him what I He explained to me what And I don't mean to interrupt you, but had you ever done 10 anything like that with the defendant? 11 A No. 12 Q Had you ever participated in any kind of a file review like 13 that with the defendant? 14 A No. 15 Q Had you ever participated in a file review like that with 16 Jody Warren? 17 A No. 18 Q Had you ever participated in any file review like that? 19 A No. 20 Q Did you express that to Agent Green? 21 A Yes. 22 Q If you can look at your monitor, Mr. Vargas. 23 And maybe we could just zoom in a little bit. So you can 24 keep the whole document, but zoom in just from the top. 25 you. Perfect. Thank Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 179 of 344424 Do you recognize Government's Exhibit 1A? 1 2 A Yes. 3 Q What is Government's Exhibit -- and by Government's 4 Exhibit 1A, I mean page 1 of Government's Exhibit 1A. 5 multipage exhibit. 6 A 7 Izzard that morning. 8 Q And that email is dated September 16, 2011? 9 A Yes. 10 Q So by that morning, is that the email that you forwarded to 11 Agent Izzard attaching some of the memos that you had written? 12 A All of them. 13 Q And below that there is an email from you to the defendant 14 dated September 1, 2011, is there not? 15 A Yes. 16 Q What is that email? 17 A This email reflects the order that I was given to -- as far 18 as writing the documents, falsifying the records. 19 the records, I attached them onto that email, and I sent them to 20 the defendant just how he instructed me to. 21 Q 22 correct me if I'm wrong, either the same day as your conference 23 room meeting in which he provided you the instruction or the day 24 after he provided you the instruction; is that right? 25 A Excuse me. It's a What is this? This is an email that I forwarded to Inspector I wrote up And you sent that email, I believe you testified, but please That's correct. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 180 of 344425 1 Q All right. So that meeting in the conference room happened 2 either that day or the day before approximately? 3 A Right. 4 Q All right. 5 email? 6 A 7 falsify. 8 Q All right. 9 A Yes. 10 Q Can we flip to Government's Exhibit 1B, please? Now, what again are the attachments to that The attachments are the reports that I was instructed to Your drafts of them? 11 And you can go ahead and look at the monitor, and this is 12 page 1 of Government's Exhibit 1B, which is also a multi-page 13 exhibit. 14 time. And let's go ahead and start from the bottom this Agent Vargas, there is an email dated September 1, 2011, 15 16 from you to the defendant. And I'm sorry. Is that the same 17 email that we just looked at in Government's Exhibit 1A at the 18 bottom? 19 A Yes. 20 Q There's a middle email dated September 2, 2011, from the 21 defendant to you; is that right? 22 A Yes. 23 Q What is that email? 24 A If you look at the top of the page, there's attachments. 25 That's what I sent him as he instructed me to. Those are my -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 181 of 344426 1 that's what I wrote. After I sent it to him, he sent me back 2 the middle part, the body where it says, "See edits." 3 "see edits," that the attachments had changes to them that were 4 made by the defendant. 5 Q 6 from you to James Izzard; is that right? 7 A Yes. 8 Q What is that email? 9 A That morning when I was writing up the statement for the Meaning And then the top email is an email on September 16th, 2011, 10 inspector, I forwarded all my correspondence and communications 11 with the defendant to the inspector, this being one of them. 12 Q 13 exhibits for us here. All right. All right. 14 Mr. Starnes is going to put up an exhibit, two Government's Exhibit 1A, which you testified are 15 the attachments that you drafted that you sent to the defendant 16 first are depicted on the right; and 1B, which you testified are 17 the attachments with the edits are on the left. 18 that, Mr. Vargas? 19 A Yes. 20 Q All right. 21 document on the left is, what the -- I see that there are cross 22 outs on it and things like that and underlines. 23 A 24 As you can see those strikes, the lines, those are changes that 25 he made, sent it back to me with the instruction, "See edits." Do you see Can you just talk the jury through what the What is that? After I sent the report to the defendant, he reviewed it. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 182 of 344427 1 So he made and recommended these changes. 2 Q 3 here below April 8th, 2010 -- does not seem to be working for 4 me. 5 A I know where you're talking about. 6 Q I just want to make sure everybody can see it. So, for example, here on the -- see if I can do this. All right. 7 Just Oh, well. Below I had made some marks right there on the 8 screen where it says April 8, 2010, that next line, it says, 9 "aforementioned." And I see in your draft on the right-hand 10 side -- thank you, Bennett. And on the right-hand side it says, 11 "The above mentioned address." 12 A Right. 13 Q So was one of the defendant's suggested changes to change 14 the word "above mentioned" to "the aforementioned"? 15 A Yes. 16 Q Are those the types of changes that he made to the other 17 memoranda that you -- draft memoranda that you provided to him? 18 A Yes. 19 Q So when you wrote in here, "On April 8th, 2010, Special 20 Agents Wayne Ball and Camillo Garcia conducted surveillance on 21 the above mentioned address," was that a true statement? 22 A No. 23 Q Did you, in fact, conduct surveillance on that address? 24 A Yes. 25 Q Was Wayne Ball with you? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 183 of 344428 1 A No. 2 Q Was Camillo Garcia with you? 3 A No. 4 Q Did it occur on April 8, 2010? 5 A No. 6 Q When did that surveillance occur? 7 A After June 2011. 8 Q And none of that changed from Government's Exhibit 1A, your 9 draft, to Government's Exhibit 1B, the edits by the defendant; 10 is that correct? 11 A I'm sorry? 12 Q None of -- the fact that you had written Wayne Ball, the 13 identities of the individuals who did surveillance didn't change 14 from Government's Exhibit 1A to 1B, correct? 15 A That's correct. 16 Q So the defendant did not edit that out. 17 A No. 18 Q Let's go ahead and put up Government's Exhibit 1C, please. MR. COONEY: 19 20 And while we put up Government's Exhibit 1C, Your Honor, may I approach the witness? THE COURT: 21 You may. 22 BY MR. COONEY 23 Q 24 evidence as Government's Exhibit 1. 25 the jury what Government's Exhibit 1 is? I'm going to show you what's already been admitted into Can you please explain to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 184 of 344429 1 A This appears to be the case file. As I mentioned before, 2 the work file is brown, which contains copies. 3 file which stays in our office in McAllen and contains all 4 original documents. 5 Q 6 placed? 7 A Yes. 8 Q Are those final case files the ones that are kept under lock 9 and key at DHS-OIG? This is the case Is that where final signed MOAs, memoranda of activity are 10 A Yes. 11 Q Is that the original file for the Manny Peña case? 12 A It appears to be. 13 Q All right. 14 on Government's Exhibit 1C, which are on your monitor which have 15 already been admitted into evidence. All right. 16 So I'd just like to walk through the documents Government's Exhibit 1C. First of all, is this 17 one of the final signed MOAs contained within the Manny Peña 18 case file? 19 A It appears to be, yes. 20 Q All right. 21 A Yes. 22 Q And we've already talked about this activity. 23 clear, did you conduct surveillance on this address in the Manny 24 Peña case? 25 A Yes. Is this one of the MOAs that you drafted? But to be Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 185 of 344430 1 Q Did you conduct it on April 8th, 2010? 2 A No. 3 Q Were Agents Ball or Garcia with you when you conducted the 4 surveillance? 5 A No. 6 Q And down here at the bottom, whose signature appears in the 7 bottom left-hand corner? 8 A Wayne Ball. 9 Q Dated for 4/8/2010? 10 A Yes. 11 Q And whose signature on the right? 12 A Eugenio Pedraza. 13 Q Can we flip to the next page of Government's Exhibit 1A, 14 please? Or, excuse me, 1C. This reports activity on October 7, 2010, by Special Agent 15 16 Wayne Ball, a surveillance on Manny Peña's address. 17 all, did you draft this report? 18 A Yes. 19 Q Did you conduct surveillance on Manny Peña's address? 20 A Yes. 21 Q Did you conduct that surveillance on October 7, 2010? 22 A No. 23 Q Was Agent Wayne Ball with you when that surveillance was 24 conducted? 25 A No. First of Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 186 of 344431 1 Q And down here at the bottom in the left-hand corner, there 2 is a signature. 3 A It appears to be Edwin Castillo's signature for Wayne Ball. 4 Q And did you type Wayne Ball's name into the signature block 5 here on page 2 of Government's Exhibit 1C? 6 A Yes. 7 Q And whose signature appears on the right-hand side? 8 A The defendant's, Eugenio Pedraza. 9 Q Move to page 3 of Government's Exhibit 1C. Whose signature is that? This report is dated March 4, 2010; is that correct? 10 11 A On the bottom, yes. 12 Q Is that Wayne Ball's signature again on the bottom? 13 A It appears to be, yes. 14 Q To your knowledge, did Wayne Ball do any work at all on the 15 Manny Peña case? 16 A No. 17 Q And does it say "for" or anything like that next to his 18 signature? 19 A No. 20 Q Whose signature appears on the right-hand side? 21 A The defendant's, Eugenio Pedraza. 22 Q Can we go to the next one? 23 Government's Exhibit 1A. What is the date of this memorandum? 24 25 I think we're at page 4 of A 3/8/2010. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 187 of 344432 1 Q Did you run a CLEAR database check revealing the information 2 contained in this report about Manuel Peña? 3 A Yes. 4 Q Did Wayne Ball assist you with that? 5 A No. 6 Q To your knowledge, did he do any work in the Manny Peña 7 case? 8 A No. 9 Q Down here at the bottom where his signature appears, does it 10 reflect that he signed this for anyone? 11 A No. 12 Q Did you put his name in the signature block here? 13 A Yes. 14 Q And just to be clear, did you draft this report? 15 A Yes. 16 Q And whose signature appears on the right-hand side? 17 A The defendant's, Eugenio Pedraza. 18 Q This -- what is the date of this memorandum of activity? 19 A 3/3/2010. 20 Q And this reports a review of TECS records concerning Manny 21 Peña's crossing history; is that right? 22 A That's correct. 23 Q Did you run a TECS history of Manny Peña? 24 A Yes. 25 Q Did you run one back on March 3, 2010? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 188 of 344433 1 A No. 2 Q Were you employed by DHS then? 3 A No. 4 Q Did you draft this report? 5 A Yes. 6 Q Who signed this report? 7 A Edwin Castillo for Wayne Ball. 8 Q And again, did you put Wayne Ball's name in the signature 9 line? 10 A Yes. 11 Q Whose signature appears on the right-hand side dated 12 March 5, 2010? 13 A The defendant, Eugenio Pedraza. 14 Q And so we're clear too about these dates down at the bottom 15 or we're clear about when you prepared these, is this one of the 16 reports that you prepared in the conference room sometime in 17 either August 31st or September 1st, 2011? 18 A Yes. 19 Q Go to the next one. What is this report? 20 21 A This is a report that I wrote based off information that was 22 provided to me by my partner, Agent Healey. 23 Q 24 truthful and accurate? 25 A Is this the report that you testified about earlier was Yes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 189 of 344434 1 Q And if I could draw your attention to the bottom left-hand 2 corner, the signature block. 3 signature block? 4 A Kristofor Healey. 5 Q Did you put his name in that signature block? 6 A Yes. 7 Q Is this the MOA that you testified about earlier you told 8 the defendant Agent Healey should sign? 9 A Yes. 10 Q And who signed this MOA? 11 A Edwin Castillo. 12 Q Did he sign it "for" with the -- 13 A Yes. 14 Q -- "for" notation for Agent Healey? 15 A Yes. 16 Q And who signed -- or excuse me. 17 the right-hand side? 18 A The defendant's, Eugenio Pedraza. 19 Q Go to the next one. Whose name is typewritten into the Now, what does this MOA report? 20 Whose signature appears on Take your time. 21 A This report, this is one of the first things that I did when 22 I received it in June when I got the case. 23 office to see if I could get some information or see if they had 24 made any progress on their end. 25 conversation I had with the agent from the FBI. I contacted the FBI And I documented the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 190 of 344435 1 Q Now, down in the bottom -- excuse me. Is this a truthful 2 and accurate report? 3 A Yes. 4 Q Down in the left-hand corner, there's a signature there. 5 you see that? 6 A Yes. 7 Q Whose signature is that? 8 A That is mine. 9 Q And in the typewritten signature block is your name; is that 10 right? 11 A Yes. 12 Q Did you type your name in there? 13 A Yes. 14 Q That's dated for -- it appears March 5, 2010, is it not? 15 A Yes. 16 Q Is that your handwriting? 17 A I don't know. 18 Q Is it possible that you wrote that there? 19 A It's possible. 20 the body of it has June 1st, 2011. 21 Q Okay. 22 A The defendant's, Eugenio Pedraza. 23 Q What date did he write next to his name? 24 A It appears 6/1/2011. 25 Q Now, when did you draft that report? Do I don't know why I would write that date if And whose signature is there on the right-hand side? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 191 of 344436 1 A June the 1st, 2011. 2 Q Did you submit it for final review that day? 3 A I believe so. 4 Q Can we go to the next one? Is that the last one? So those last two, Agent Vargas, are those the only two 5 6 truthful and accurate reports that you wrote in the Manny Peña 7 case? 8 A Yes. MR. COONEY: 9 10 Court's indulgence for just a moment. Your Honor, I have no further questions for this witness. 11 THE COURT: 12 MR. EASTEPP: Give me just a second, Your Honor. 13 THE WITNESS: Would you like me to leave this here? 14 MR. COONEY: 15 16 Mr. Eastepp? May I take that back from the witness, Your Honor? THE COURT: You may. 17 All right. Why don't we take about a ten minute break. 18 (Jury leaves courtroom) 19 THE COURT: 20 THE WITNESS: 21 22 23 24 25 Go ahead. Thank you, sir. (Recess taken from 2:19 to 2:36.) THE COURT: All right. Be seated. Y'all can be seated. Mr. Eastepp, is there something we need to do before we bring the jury in? MR. EASTEPP: Yes, sir, very quickly. In regard to the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 192 of 344437 1 questioning about the immunity of Mr. Vargas, when the original 2 case prosecutors, Mr. Kelly and Mr. Gibson, informed Mr. Vargas 3 of this, they did it at the FBI office here in Brownsville, and 4 Freddy Vela made a 302 of that. 5 not as expansive as the testimony that went on, and I want to 6 offer it as being the best evidence of what the immunity deal 7 is. 8 9 THE COURT: All right. It's a little different. It's Let me see the 302. Well, I don't think this necessarily qualifies 10 as best evidence. I mean, best evidence is like we have a 11 contract and it's signed by everybody, and that's the best 12 evidence. 13 MR. EASTEPP: 14 THE COURT: I didn't mean it quite in that vein. I am going to let you show this to the 15 witness and see if this refreshes his memory as to any of the 16 terms, and you can ask him -- not referring to the 302, but ask 17 him about what's in this 302. 18 into evidence. 19 before the jury comes back in. 20 21 22 23 24 25 Okay. But I'm not going to admit it And if you want to show it to him right now With that, can we bring the jury in? MR. EASTEPP: (Nod indicated.) (Jury enters courtroom) THE COURT: All right. Ladies and gentlemen, be seated. Mr. Eastepp, you may proceed. CROSS-EXAMINATION Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 193 of 344438 1 BY MR. EASTEPP 2 Q Good afternoon, Mr. Vargas. 3 A Good afternoon, sir. 4 Q You described your current job as just -- was it correct 5 when you started that you current job is really just to come 6 here and testify in this case? 7 A What do you mean job, sir? 8 Q That you're just sitting at home being paid by the 9 government and waiting to come testify, and that's what all this 10 administrative leave has been about? 11 A 12 put on administrative leave pending the conclusion of this 13 criminal matter. Yes. The letter that I was given explained that I would be But to answer your question, that's what I've been doing, 14 15 staying at home, not reporting to work. 16 Q And you've been on leave since May of 2012, correct? 17 A That's correct. 18 Q So almost two years? 19 A Almost, yes. 20 Q Which means you've been paid well over $100,000 in that time 21 period? 22 A I don't know the number, sir. 23 Q Well, what do you get paid on a yearly basis? 24 said about 70,000? 25 A It's close to that, sir. You earlier Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 194 of 344439 1 Q So almost two years, 70 and 70. And you've not resigned? 2 A No. 3 Q And why not? 4 A Once this case is over, from what I've gathered, there's 5 going to be an administrative inquiry on myself and other folks 6 in our agency, and I'm prepared to explain to them what 7 transpired. 8 job. 9 Q And the truth is, I'm hoping I'm able to retain my So I take it from that answer, Mr. Vargas, you don't think 10 you committed a crime; is that correct? 11 A 12 that I may have cleansed myself in one way or another. 13 part of me knows that I committed a crime, but the other part of 14 me feels that I did the right thing in reporting it. 15 don't know how that works being on probation. 16 I've asked in my agency has never gone through this, so no one 17 can give me a sound answer of whether or not I'm going to be 18 able to keep my job, so... 19 Q So did you answer in there that you did commit a crime? 20 A I know I did wrong, is what I -- is what I stick to. 21 that I did wrong. 22 Q And what wrong did you do? 23 A I followed the defendant's orders in writing those MOAs. 24 Q And being a former military person the way you said that, 25 followed orders means you were forced to do something; is that I know I did wrong, sir. However, in reporting it, I feel Now, And I Everyone that I know Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 195 of 344440 1 correct? 2 A 3 probation. 4 Q 5 a cop; you were a cop in Harlingen; you were a SWAT team member, 6 which meant you had to know very detailed issues about state law 7 and deadly force and when you could pull a trigger and those 8 sorts of issues, correct? 9 A Comfortable saying correct, yes. 10 Q And you then went to the FLETC, the Federal Law Enforcement 11 Training Center, and were trained on federal laws, where they -- 12 A Yes. 13 Q They go through legal training, correct? 14 A That's correct. 15 Q So you know what a crime is, correct? 16 A Sure. 17 Q Did you commit a crime? 18 A I'd have to say yes. 19 Q And what crime did you commit? I felt like I didn't have any other choice being on All the way back to when you were in the Air Force, you were 20 MR. COONEY: Objection. 21 THE COURT: 22 THE WITNESS: Calls for a legal conclusion. If you know, you can answer that. Ask me the question again, sir. 23 BY MR. EASTEPP 24 Q What crime did you commit? 25 A Well, I agreed with the defendant in falsifying the reports. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 196 of 344441 1 Basically conspiracy. 2 Q 3 agency that admit to committing crimes that they're going to let 4 be agents? 5 A Excuse me? 6 Q Do you think you're going to get your job back? 7 A I said I don't know. 8 play it out. 9 Q And you're going to keep taking the government's money. 10 A Yes. 11 Q Just to sit at home. 12 A If I could do something else, I would. 13 Q You could resign and save the taxpayer's money, couldn't 14 you? 15 A Not if I think I did the right thing in reporting it. 16 Q What in your experience tells you that when people commit a 17 crime and they call 911, that gets them off committing a crime? 18 A I don't know. 19 Q I mean, everybody would be out robbing banks and going: 20 called 911. And do you think there's a whole bunch of people at that It's not in my hands, but I'm going to I robbed a bank. 21 MR. COONEY: 22 THE COURT: 23 BY MR. EASTEPP 24 Q 25 the money, right? I Do I get to keep the money? Objection. Sustained. But you're not going to resign. You're going to keep taking Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 197 of 344442 1 A I'm not going to resign until the administrative inquiry is 2 complete. 3 Q 4 testify, correct? 5 A Yes. 6 Q Okay. 7 you've met with federal investigators or federal prosecutors 8 before you got to the stand today? 9 A And again, all you've been doing is waiting to come here and Leading up to today, can you tell me how many times I don't know the exact number. I would venture to say ten. 10 Several times. 11 Q 12 eight, nine 302s. 13 sound right? 14 A Approximately ten. 15 Q And then your grand jury testimony on February the 10th. 16 A Okay. 17 Q I'm assuming sometime in the last week you've met again with 18 prosecutors? 19 A Four times I believe in the last couple weeks. 20 Q And we had a routine hearing in this case back a few months 21 ago. 22 that hearing? 23 A Yes. 24 Q And about how many times then? 25 A Three or four. And I've seen one, two, three, four, five, six, seven, No doubt some of those are short. Does that That sounds accurate. And did you meet with the prosecutors and agents before I don't remember. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 198 of 344443 1 Q So that's seven meetings on top of the other ten. 2 A Again, sir, I don't know the exact number. 3 Q I'm just trying to do the math. 4 but that's what it sounded like to me. 5 A No, no. 6 Q Ten and seven, right? 7 focused on Gene Pedraza and what started in that conference room 8 on September the 1st; is that correct? 9 A Yes. 10 Q And you've gone over it with them all these -- all those 11 times: 12 A Yes. 13 Q Leading up to today? 14 A Yes. 15 Q So these things ought to be very fresh in your mind, 16 correct? 17 A For the most part. 18 Q And I'm assuming before you testified today, that in these 19 last -- these meetings over the last -- these four meetings in 20 the recent past, you reread your own grand jury transcript? 21 A Yes. 22 Q And, in fact, there's an FBI 302, it's called, where y'all 23 went over your transcript with the agents and the lawyers after 24 you testified. 25 Several times. Not trying to be tricky, I understand. And each of these events have been What was said, who said it, what happened, correct? MR. COONEY: Objection. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 199 of 344444 THE COURT: 1 Sustained. 2 BY MR. EASTEPP 3 Q 4 agents and officers -- agents and prosecutors before last week? 5 A Yes. 6 Q Okay. 7 A I believe it was a week prior to our James hearing. 8 Q And had there been any earlier occasions where that 9 occurred, meaning gone over your grand jury testimony? Have you ever gone over your grand jury testimony with And when was that? 10 A I'm sure there was. I just don't recall. I think we may 11 have met twice before the James hearing. 12 read them. 13 Q 14 those events? 15 A Yes. 16 Q Okay. 17 interviewed in Houston, Texas? 18 A Clarification on the testimony. 19 Q So that's going to be earlier than this James hearing, as 20 you've referred to it. 21 A Yes. 22 Q So -- and how long did that occur, that going over the 23 testimony in Houston, Texas? 24 A You mean the interview? 25 Q Uh-huh. I think each time I Do you recall being interviewed in Houston, Texas, about And what was the subject matter when you were Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 200 of 344445 1 A I know it started after lunch around 1:00. I think I stayed 2 there until 5:00 or so. 3 Q 4 picked up on the another day? 5 A 6 night, and I left the following morning, so it finished that 7 day. 8 Q 9 went over it in Houston. Four hours or so. Did it not, in fact, start on one day and then stopped and No, sir. I drove to Houston that morning and I spent the So going back to you gave grand jury testimony, then you You read it and went over it again at 10 the James hearing. You read it and went over it again last 11 week. 12 A The grand jury? 13 Q Right. 14 A I guess that's three times. 15 Q Three post the event of testifying, correct? 16 A Of the James hearing, yes. 17 Q Let me be clear. 18 the grand jury in Washington, D.C. 19 A Right. 20 Q Everybody admits that's the day it is. 21 after that where you went over it, correct? 22 A That's correct. 23 Q James hearing would have been here in Brownsville. 24 over it, correct? 25 A Fair statement of how many times you've gone over it? That's correct. Three or four times. You testified February the 10th of 2012 at You remember that, right? Houston, Texas, You went Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 201 of 344446 1 Q Last week or so, whenever that was, the fourth time, 2 correct, in preparation for your testimony today? 3 A Yes, I've read it a couple times. 4 Q Okay. 5 grand jury transcript before you've gotten on the stand today. I'm just going over how often you've gone over this I take it you have not read any 302s. 6 Fair statement? 7 A I have not. 8 Q When -- your experience level when you were hired by the 9 Inspector General was fairly extensive, was it not? 10 A Fairly. 11 Q Meaning, as I've already mentioned, what, it was April 1995 12 to April '99 you were security police enforcement at Dyess Air 13 Force Base; is that right? 14 A That's correct. 15 Q And May '99 to January of 2001 you were the United States 16 Air Force security police as a criminal investigator, correct? 17 A Correct. 18 Q And during that time, fair statement, you conducted felony 19 and misdemeanor criminal investigations regarding Air Force 20 personnel, correct? 21 A Correct. 22 Q Including property, facilities and activities of the Air 23 Force? 24 A Correct. 25 Q Meaning it could have been money based, if money was stolen Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 202 of 344447 1 or misappropriated in the Air Force, or misconduct by an Air 2 Force airman or an employee, correct? 3 A Correct. 4 Q During that time period, you had pretty extensive experience 5 interviewing witnesses and interrogating suspects, did you not? 6 A Yes. 7 Q You learned to use polygraphs in doing examinations of 8 witnesses in that time period, did you not? 9 A I believe we had some training in that, yes. 10 Q Which would have been an investigative technique, an 11 interviewing technique. 12 A 13 polygraphs? 14 Q 15 utilize that tool in your cases. 16 A 17 not operate them. 18 Q 19 sensitive investigations regarding breaches of security, 20 violations of the Uniform Code of Military Justice? 21 A Yes. 22 Q You were involved in collecting and analyzing criminal 23 intelligence reports for use by other Air Force personnel, 24 correct? 25 A I didn't conduct them. If you're asking me if I conducted I didn't mean you were an operator, but you learned how to We were aware, yes, that it was available. But, yes, I did You, while in the Air Force, fair statement, conducted Correct. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 203 of 344448 1 Q You learned and did maintain Air Force criminal records and 2 case files? 3 A Correct. 4 Q So even way back, May '99 to January 2001, you knew how to 5 maintain criminal records and case files and the integrity of 6 those files. 7 A For that particular job, yes. 8 Q Well, there's criminal files when you were in the Harlingen 9 Police Department, right? Is that a fair statement? 10 A Yes. 11 Q And then criminal files in DHS-OIG, correct? 12 A Yes. 13 or not maintaining. 14 talking about writing them, securing them, or are you just 15 asking me writing them? 16 Q 17 resume in front of me. 18 A Okay. 19 Q I didn't write "maintained." 20 A Just that. 21 Q What does it mean? 22 A It's broad. 23 Q Say -- 24 A That it's broad, maintaining records. 25 Q Which would be maintaining the integrity of the records, Well, you mean -- did you say -- you asked me whether Maintaining, that's pretty broad. You know what I'm using, don't you? Are you I mean, I've got your What did you mean? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 204 of 344449 1 correct? 2 A Sure. 3 Q You learned and did obtain statements and sworn affidavits 4 from suspects that resulted in them being prosecuted and 5 incarcerated, correct? 6 A Correct. 7 Q March 2002, November 2003 you were a joint drug task force 8 narcotics investigator at Travis Air Force Base in California? 9 A Yes. 10 Q And what were your duties there? 11 A The same thing. 12 Q Very similar to what you did at the Harlingen Police 13 Department? 14 A 15 civilians. 16 Q Drug dealing, correct? 17 A Yes. 18 Q And did you successfully complete investigations while you 19 were in that particular position with the Air Force? 20 A Yes. 21 Q And did you work with other people doing those things? 22 A Yes. 23 Q Did you have supervisors at that time? 24 A Yes. 25 Q Did you have paperwork that needed to be filled out? We just focused on narcotics. Yes, with the exception that it was military people, not Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 205 of 344450 1 A Yes. 2 Q Did that paperwork have to be approved by somebody? 3 A Yes. 4 Q Did that paperwork, after it was approved, get placed into 5 official files? 6 A Yes. 7 Q You learned at that time to recruit and manage CIs, 8 confidential informants; is that right? 9 A Yes. 10 Q You learned how to do long-term surveillance; is that right? 11 A Yes. 12 Q Which also means that's surveillance. 13 to document it and get into the file so it could be utilized in 14 the prosecution; is that correct? 15 A Yes. 16 Q And again, we're still talking about earlier than -- or up 17 to November 2003, right? You had to learn how 18 And again, in that position you participated in successful 19 prosecutions of individuals where the case came all the way to 20 fruition; is that correct? 21 A Yes. 22 Q And then it's April of 2004 that you switched over to 23 Harlingen Police, correct? 24 A Yes. 25 Q You're out of the Air Force. You're now doing civilian Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 206 of 344451 1 work. 2 A That's correct. 3 Q Frankly, other than the uniforms and no doubt the military 4 order issues that may go along with it, there's probably a lot 5 of similarities to the day-to-day work once you switched over to 6 Harlingen; is that correct? 7 A There was a learning curve. 8 Q But did you have kind of a leg up on other, quote, rookies 9 that had never had to write reports and testify in trials and do 10 the other things that you've now had several years of Air Force 11 experience doing? 12 A 13 learn the same thing that I already knew. 14 once we hit the field, no. 15 Q 16 have been able to do it a whole lot faster than somebody that 17 had never cranked out some police report, right? 18 A They're not very hard to crank out. 19 Q What was your first initial job there with the Harlingen 20 Police Department? 21 A I was in the patrol division. 22 Q And that was to June of 2008? 23 A Right about, yes. 24 Q And again, these reports that you were writing, for 25 instance -- for incidents that are occurring while you're on Maybe just in the academy. But, I mean, in the academy they So as far as a leg up I mean, if you've been cranking out reports, you ought to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 207 of 344452 1 duty and you're the reporting officer, you're writing those, 2 they're going through a supervisor, and they're making it into 3 an official file; is that correct? 4 A Yes. 5 Q July of '08 your job changed some at Harlingen. 6 change to? 7 A 8 there? 9 Q Gang unit criminal investigator? 10 A Sounds accurate. 11 Q Which lasted until October of 2009? 12 A Right. 13 Q And in that particular position, you're investigating the 14 criminal activity being conducted by organized gangs -- 15 A Yes. 16 Q -- correct? 17 the chief ordered y'all to be involved in, correct? 18 A Right. 19 Q You conducted lots of interviews during that particular 20 assignment, did you not? 21 A Yes. 22 Q Part of trying to bust gangs is gathering as much 23 information on them that you can get to get into law enforcement 24 databases so you can identify them and track them and hopefully 25 catch them, correct? July of '08? I couldn't tell you offhand. What did it If you've got it Including if there were special operations that Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 208 of 344453 1 A Correct. 2 Q So you did a lot of report writing during that time period. 3 A Correct. 4 Q And you had supervisors in that time period, correct? 5 A Correct. 6 Q And they were seeing your paperwork, correct? 7 A Correct. 8 Q And that paperwork was going into official files? 9 A Correct. 10 Q Then you became a narcotics -- just a regular narcotics 11 investigator; is that right? 12 A Regular? 13 Q I mean, not gang narcotics, but -- I don't know. 14 me. 15 A Yes. 16 Q Your duties were similar. 17 investigations. 18 files, correct? 19 A That's correct. 20 Q And then September of 2010 you get assigned to the DEA Task 21 Force in Harlingen; is that correct? 22 A In Brownsville. 23 Q Brownsville, I'm sorry. 24 force like that, you're a deputized essentially federal agent; 25 is that correct? You tell You're doing narcotics You're writing reports. Reports are going into And while you're on a federal task Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 209 of 344454 1 A Correct. 2 Q And you're having to follow that agency's policies. 3 particular like in this, the form DEA uses to mark their -- like 4 what the FBI calls a 302, what the OIG calls an MOA, everybody 5 in our business calls DEA form 6. 6 a 6 correct? 7 A Correct. 8 Q So you use a DEA form 6 to put all the -- the reporting 9 information, whether it's an interview or a records check like And in You hear everybody calling it 10 NCIC or something like that, correct? 11 A They did. 12 Q What if you went on an interview with a DEA agent, a sworn 13 DEA agent and you did an interview together? 14 A 15 be able to write the reports. 16 many interviews, but I never wrote an interview under a 6 as 17 they did. 18 Q Did you read lots of them written by other people? 19 A Yes. 20 Q Did you read somewhere you may have gone on the interview, 21 but the other agent is writing it, and he's asking you: 22 this accurate? 23 A It's possible. 24 Q But you -- I would take it even if you didn't write one, you 25 got a fairly good dose of how the DEA did their federal I was never -- I never -- I never did it. I was there for a short period, so I didn't get my access to So, yes, I did accompany many, Hey, is I don't remember. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 210 of 344455 1 paperwork; is that correct? 2 A Sure. 3 Q I'm assuming even while you were still in Harlingen before 4 you were on the task force, y'all did lots of liaison work in 5 narcotics investigations with the DEA; is that correct? 6 A Yes. 7 Q So their paperwork, their lingo and the federal language was 8 probably known to you, at least maybe in a general form, when 9 you went onto that task force; is that correct? 10 A That's correct, yes. 11 Q So when -- it's Wayne Ball that calls you, right, about the 12 potential job at the OIG, correct? 13 A Yes. 14 Q And you interviewed with Gene Pedraza, correct? 15 A Yes. 16 Q And you would have provided a resume, much like I've just 17 gone over with you here this afternoon, correct? 18 A Yes. 19 Q And you have to admit to anybody reading that, it certainly 20 appeared at the moment you were hired you had some fairly 21 extensive law enforcement experience from the military, a 22 medium-sized Texas city, and a little bit of the federal 23 government at the point in time you were hired by the OIG, 24 correct? 25 A Correct. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 211 of 344456 1 Q And in all of those jobs before you got there, you've been 2 filling out paperwork that's being reviewed by supervisors 3 that's going into official files, correct? 4 A Correct. 5 Q So when you go to the FLETC in Glenco, Georgia, when they're 6 talking about maintaining records and those sorts of things, 7 again, you probably had a little bit of a leg up. 8 a file was and typical things that went into the file, correct? 9 A Correct. 10 Q The things they had to teach is how they wanted things 11 filled out. 12 was in their lingo and those sorts of issues, correct? 13 A Correct. 14 Q So all this, you know, by the time you're sitting in that 15 conference room, you -- no one would have called you some 16 rookie, either agent or rookie officer sitting in there. 17 might have been new to that agency, but you were not a rookie, 18 correct? 19 A I was the rookie. 20 Q Right, the new guy. 21 and experience, you were nobody's rookie on September 1 of 2011. 22 A I don't know how they felt about me as far as the -- 23 Q I'm asking you to brag on yourself. 24 on 9/1 of 2011. 25 enforcement officer that moment, correct? You knew what It's probably where you first learned what an MOA You I was the new guy. But as to your law enforcement training You were not a rookie You've had many years of experience as a law Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 212 of 344457 1 A Yes. 2 Q Did you think you had been good at all of those jobs? 3 A Yes. 4 Q Had you been promoted and given awards at all those jobs? 5 A Yes. 6 Q Certainly those are things that a federal manager like Gene 7 Pedraza was would have been looking for when he goes to hire 8 somebody, correct? 9 A Yes. 10 Q So you were hired. 11 language calls it, your entering on date in federal language? 12 It's the day you start. 13 A 14 January 2011 or maybe December 31st. 15 January 2011. 16 Q 17 was because you had prior military service, you entered federal 18 service, for purposes of leave, like how much vacation or what 19 the federal government calls annual leave and sick leave, at a 20 higher rate than somebody that might have been hired for the 21 very first time on the very same day, correct? 22 A Correct. 23 Q So while you were in the Air Force, you knew you had a 24 personnel file and that it kept things like your rank and your 25 promotions and those things, right? Makes sense? What was your EOD, as the federal I believe it was -- I couldn't tell you. I think it was It was -- I believe it was And the other thing you had a leg up on when you were hired Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 213 of 344458 1 A Right. 2 Q And years of service, all those things, correct? 3 A Correct. 4 Q So when you entered in federal service, civilian service 5 with the OIG, you knew that there was a personnel file on you, 6 correct? 7 A 8 yes, I'm sure there was. 9 Q I never gave it much thought. But now that you brought up, Well, do you recall things like having to pick your health 10 insurance? 11 A Yes. 12 Q And that's a form, correct? 13 A Yes. 14 Q Thrift savings, which is the government's like 401K 15 retirement. 16 A Yes. 17 Q And you understand those go to somewhere, correct, where 18 somebody can say: 19 Robert Vargas' retirement, right? 20 A Yes. 21 Q So you understand there's a personnel file, right? 22 where all that's headed. 23 A Okay, yes. 24 Q Right? 25 do you remember getting things called notification of personnel There's forms for that. Do you recall that? I think it's all on line, yes, but -- This is Robert Vargas' health insurance, That's And over time as you moved through federal service, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 214 of 344459 1 action, these forms that will come to you in the mail that tell 2 you like when you've got a bonus or a grade raise or any of that 3 sort of stuff? 4 MR. COONEY: 5 MR. EASTEPP: 6 MR. COONEY: 7 I asked did he recall. My objection is just relevance and where are we headed with knowledge of a personnel file. THE COURT: 8 9 Objection. I'm going to overrule it for right now. You can answer that question. THE WITNESS: 10 Ask me again, please, sir. 11 BY MR. EASTEPP 12 Q 13 action as things occurred with your career as you moved along? 14 A No. 15 Q Do you recall getting your pay stubs mailed to your house? 16 A Not to my house. 17 it, you can go access it. 18 Q But you don't remember getting anything like it? 19 A I don't recall, no. 20 Q You don't recall ever seeing and signing your own personnel 21 forms that informed you about your probationary period, for 22 example? 23 A I'm sorry, sir. 24 Q You don't recall seeing and signing forms when you started 25 with the government that explained your probationary period? Do you recall getting forms called notification of personnel Everything was online. If you want to see Ask me again? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 215 of 344460 1 A No. 2 Q Do you recall filling out any paperwork to start working for 3 the federal government? 4 A The memorandums that I falsified, yes. 5 Q That's the only thing from all your federal service you 6 remember? 7 A 8 the beginning of my career. 9 Q I'm sure I remember other things, but you're asking me from Beginning of your career at the OIG was just a few months 10 before you decided to be a criminal, right? 11 A 12 hired. 13 signing what you have in front of you, I don't remember. 14 you show it to me, perhaps I'll remember, but I'm not going to 15 sit here and tell you yes. 16 Q The question was do you remember signing things? 17 A Signing what? 18 Q When you started with the federal government. 19 remember sitting down with somebody with the agency and doing 20 the health forms and the retirement forms and signing all these 21 forms when you started? 22 A I believe we did all that online. 23 Q You never sat in front of somebody to explain all that to 24 you? 25 A You're asking me questions about what I signed when I was I signed several things. Now, whether or not I remember And if Do you No, because I recall Agent Warren explaining TSP to me and Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 216 of 344461 1 telling me get with Marco if you have any questions about it, 2 which I did. 3 Q 4 affidavit where you took the oath? 5 A I do. 6 Q And who did you sign that with? 7 A The defendant, Eugenio Pedraza. But it was all online. But you remember signing an oath of -- an appointment 8 MR. EASTEPP: 9 THE COURT: MR. COONEY: 10 May I approach, Your Honor? You may. Your Honor, I just renew my general 11 objection to relevance of all the miscellaneous personnel 12 documents. THE COURT: 13 Overruled. 14 BY MR. EASTEPP 15 Q Just read it to yourself. 16 A Okay. 17 Q After reviewing that, does that refresh your memory whether 18 you've seen a document like that before? 19 A No. 20 Q Never seen one like that? 21 A I don't recall. 22 Q You knew Ms. Hinojosa was the office manager or 23 administrative assistant, correct? 24 A Yes. 25 Q Did you ever ask her to tell you what your probationary Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 217 of 344462 1 period was or to send an email to Washington? 2 A I don't think I ever asked her to -- to request a check. 3 Q Nor did you personally ever send an email to the HR 4 Department in Washington for the OIG to go: 5 probationary period? 6 A No. 7 Q I mean, you know that's not a secret, right? 8 had the right to know. 9 A Right. 10 Q And it was in paperwork in a personnel file, but you never 11 asked? 12 A Asked who? 13 Q Hey, what's my probationary period? 14 A I did. 15 Q Who? 16 A Defendant. 17 Q What did he tell you? 18 A He would never give me an answer. 19 Q That's my question where I'm headed with all of this. 20 you ever send an email to Washington or ask Cindy Hinojosa or 21 anybody: 22 A 23 anyway. 24 Q 25 about your own personnel file? Hey, what's my Meaning you Did Hey, what's my probationary period? I wouldn't do that because it's going to get back to him So no, I never asked. You thought you would get in trouble for asking something Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 218 of 344463 1 A No, I don't think I was going to get in trouble. 2 Q When you first started, I take it you didn't really even 3 know him, correct? 4 A I didn't know him at all, no, that's correct. 5 Q You didn't know him at all. 6 or even months, you couldn't have formed an opinion about him 7 yet, had you, that he was a tyrant where you couldn't ask him 8 your own probationary period? MR. COONEY: 9 10 testimony. Misstates the witness' Mischaracterizes it. THE COURT: 11 Objection. So in the first few days, weeks Rephrase your question. 12 BY MR. EASTEPP 13 Q 14 that you didn't know the probationary period. 15 person what it is. 16 find it out anywhere else. 17 A Okay. 18 Q But you never bothered to ask Cindy Hinojosa or send an 19 email to Washington or do any proactive work? 20 A No. 21 Q You just accepted that it was some secret that he was going 22 to keep? 23 A Who? 24 Q I said he being Gene Pedraza for the record. 25 the record. You understand why I'm asking these questions. He's told you no. You've said You've asked one You thought you couldn't He, being Gene Pedraza, for the record. I said it for Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 219 of 344464 1 A The truth is in the beginning when I got hired, it didn't 2 matter much. 3 came into play was when all this transpired. I was learning the job. The only time it really Now, in the back of my mind I knew that regardless if that 4 5 document says that I was on probation for one year or two years 6 or whatever it reads, I would imagine he still had discretion 7 and extended it, regardless if it was a year or two years. 8 Ultimately he's -- he holds the strings on that. 9 have any problem before the conference room. 10 Q Who did you work for? 11 A With regards to what? 12 Q Who did you work for? 13 A You mean right now? 14 Q No. 15 A With this job? 16 Q On September 1 of 2011. 17 A I was working for him, for the defendant. 18 Q So you're not working for a federal agency. 19 working for him. 20 A 21 Security. 22 Q 23 They're not Gene Pedraza's rules. 24 rules, correct? 25 A And I didn't What's your answer to that? You were Well, yes, I'm working for the Department of Homeland Right. Who has its own rules, right, about employment. Safe to say. They're the U.S. government's Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 220 of 344465 1 Q You've heard the term civil service. You know what that is, 2 correct? 3 civil service, correct? 4 A Okay. 5 Q You knew that, right? 6 A I've heard of it. 7 Q Did you understand veteran's preference? 8 this country have the right to work for the federal government 9 and have enhanced benefits and enhanced rights? The people that work for the federal government in the 10 MR. COONEY: 11 THE COURT: Their specific duties, I don't know. That veterans in Objection, relevance. Sustained. 12 BY MR. EASTEPP 13 Q 14 employed before you went to FLETC? 15 A Approximately a month. 16 Q What did you do in that month? 17 A Review files. 18 Q Stop right there and explain what that means. 19 A I don't know exactly what I did day-to-day the entire time I 20 was there, but I do recall orientating myself with the office. 21 I recall guys going on calls in other cities and asking me to go 22 with them. 23 Q Such as who did you accompany? 24 A I believe I went to Laredo with Agent Rodriguez. 25 Q Marco Rodriguez? When you first started as an agent, how long were you Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 221 of 344466 1 A Yes, that's correct. I believe I accompanied Rolando Gomez 2 on an interview, things like that. 3 look at their case file and read their memorandums to get an 4 idea of what it is they're looking for there. 5 some other things. 6 certain things. 7 Q Such as? 8 A I don't remember. 9 Q Do you remember being -- do you remember being asked to And then, of course, I would But I also did I helped an administrative officer with 10 conduct an inventory? 11 A Yes, I do. 12 Q And who asked you to do that? 13 A The defendant, I believe. 14 Q Trying to help you learn the agency and help out while 15 you're waiting to go to FLETC? 16 A 17 desks, chairs. 18 at FLETC, but that's what it entailed. 19 Q 20 out, right? 21 gun yet or doing that sort of stuff, right? 22 A Right. 23 Q So you really had to do only office work, correct? 24 A Yes. 25 Q Might have been drudgery, but somebody even in the federal The inventory, if I'm not mistaken, was just the furniture, I don't understand how that's going to help me Somebody had to do it. You're helping the agency by helping Because you can't go out. You're not carrying a Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 222 of 344467 1 government has to do some drudgery, correct? 2 A Yes. 3 Q And you were being paid, right? 4 A That's correct. 5 Q So how long -- you were at FLETC for four months. 6 any of the agents from here accompany you to the FLETC? 7 A No. 8 Q So you're the only one from the McAllen field office, which 9 would include Brownsville, Laredo, that went during the time 10 period you went? 11 A 12 there for a month, I believe, prior to me. 13 Q 14 classes? 15 A Yes. 16 Q Was that the first time you had met him? 17 A Yes, I believe so. 18 Q Did y'all become buddies then? 19 A No. 20 Q When did that occur? 21 A After I finished FLETC. 22 Q And when did you get out of FLETC and come here? 23 A I believe I reported in June 2011. 24 Q And where were you assigned when you got here? 25 A McAllen. And did I traveled there by myself, but Agent Healey was already Was that the first -- meaning there's some overlap in the We reported back over here. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 223 of 344468 1 Q But you were literally working in the McAllen office then? 2 A Yes, sir. 3 Q And that was where you said you were working in the 4 conference room? 5 A Yes, sir. 6 Q That's the same conference room that this thing happens on 7 September 1st, correct? 8 A That's correct. 9 Q It's at the end of a hall; is that right? 10 A Yes, sir. 11 Q The break room is kind of right next to it? 12 A That's correct. 13 Q Was anybody else officing in there with you or using it as, 14 quote, an office? 15 A During that time, no. 16 Q Would you keep the door open most of the time? 17 A I would -- I don't remember how many times -- I remember 18 closing it, yes, but I don't -- I mean, all the time? 19 know. 20 Q 21 FLETC and you're now a sworn agent and can handle cases? 22 A 23 and ten. 24 Q 25 agents who had already been working on those cases? Majority of the time, I don't know. I don't I mean, I closed it. How many cases did you get as soon as you got back from Exactly I couldn't tell you. I believe it was between eight Were they new cases, or were they transferred from other Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 224 of 344469 1 A Both. 2 Q What's the mix? 3 A I couldn't tell you. 4 Q Mostly new, mostly transfer? 5 A I don't remember. 6 cases, though. 7 Q Had old cases? 8 A Yes. 9 Q Were the agents who had worked on the old cases still in the I don't remember. I truly don't remember. I know I had old 10 office? 11 A I'm sure, yes, some of them. 12 Q So they were around for you to ask questions if you needed 13 to ask questions? 14 A For the most part, yes. 15 Q Did you immediately start going out and doing interviews and 16 that sort of work as soon as you got back from FLETC? 17 A What would you consider as soon as I got back from FLETC? 18 Q When you get back and you're assigned this mix of cases, old 19 and new, did you start going out doing interviews on those 20 cases? 21 A I don't think so. 22 Q So you were just working in the office? 23 A I think I was trying to get a grasp on the cases that I had, 24 determining who had what prior and things of that nature. 25 as far as going out and doing interviews in the beginning, I can From what I can recall, yes. But Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 225 of 344470 1 recall doing an interview with Agent Ball. 2 Q 3 blue file as it's been identified. 4 A Yes. 5 Q Were you getting files that look like this? 6 A No. 7 Q As far as thickness, or were you getting -- 8 A Some were bigger, some were -- no, not that big, but some 9 were -- some had a lot of paperwork in it. This is the Manny Peña file that's already in evidence, the 10 Q But eight, nine or ten of those, whatever the number is, 11 seems like you could have read that even in one day all the 12 records in that many cases. 13 A 14 some of the agents that were there. 15 lot of times not all the agents are there. 16 They're doing their own thing, so -- but as far as reading all 17 of them in one day, I don't think that happened. 18 Q 19 doing interviews and agents are out of the office where you 20 can't ask them a question about a file you have, what were you 21 doing? 22 A 23 case. 24 person. 25 was still learning the -- the ins and outs of other agencies; Is that fair? I think I would do one at a time and go and ask questions of You have to realize that a Some guys are gone. How did you fill your time then if you're not going out and Consulting with Agent Ball, for example. You know about it. Do you know him? "Hey, I got this I'm thinking about calling this Do you have his phone number?" And I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 226 of 344471 1 you know, for example, the FBI. 2 them. 3 The other internal affair agencies that -- for example, I'd ask 4 Wayne Ball, and he goes, "Yeah, I got this guy's number. 5 call him for you." 6 guy." 7 was someone I could look forward to or look to help me with 8 cases. 9 Q "Don't call those guys. A lot of these cases had FBI on They're not going to help you." He'd say, "This is Agent Vargas. You know, he was -- I'd consult with him. Let me He's a new You know, he But what case it was or wasn't, I don't remember. Would it help if you saw records that showed you things that 10 you worked on with Wayne Ball immediately? 11 A Sure. 12 Q And before I do that, did he help teach you how to write 13 MOAs? 14 A Yes. 15 Q And, in fact, there was a lot of email traffic of Wayne 16 sending you MOAs and you sending him MOAs, correct? 17 A 18 I'd just email it to him. 19 think?" 20 together, we did an interview, and I believe I wrote it up, 21 showed it to him, he made some changes, and then I submitted it 22 to the defendant. 23 Q 24 his name, yet you went ahead and submitted it with his name on 25 it? I don't recall, but there was. I would write up an MOA. "Take a look at it. What do you I had this one particular case where we worked Were there ever instances where he wrote it up and it had Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 227 of 344472 1 A I don't think so. 2 Q You don't recall that? 3 A I don't remember. 4 MR. EASTEPP: 5 THE COURT: Judge, may I approach? You may. 6 BY MR. EASTEPP 7 Q 8 me if you recognize this. 9 A Your question is what? 10 Q Do you recognize it? 11 A No. 12 Q Is it an email that came to you, though? 13 A According to this. 14 Q And who did the email come from? I on the break showed these to the government. 15 MR. COONEY: 16 THE COURT: 17 MR. COONEY: 18 Sustained. Hasn't been admitted into evidence. 20 MR. EASTEPP: Sustained. Judge, this is getting back -- I guess we need to come to the bench so I can explain. 22 (At the bench) 23 THE COURT: 25 The witness said he didn't recognize it. THE COURT: 24 According to this, yes. Objection. 19 21 First tell Okay. Let me see what it is first of all. Now -- MR. EASTEPP: You know, the government admits these are Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 228 of 344473 1 authentic. These came from the discovery that we printed. 2 identified his own. 3 testifying to, that he and Wayne Ball were trading reports back 4 and forth and helping each other. 5 the content of these reports, but it's in the time period. 6 THE COURT: 7 MR. COONEY: 8 9 He's It's obviously relevant to what he's That's the issue more than Why don't you just ask him that? I think he's actually already testified. We don't contest that he and Wayne Ball emailed back and forth. THE COURT: He testified he doesn't recognize this. 10 don't you ask him, "Would this be an example of when you and 11 Wayne Ball traded emails?" 12 MR. EASTEPP: 13 THE COURT: 14 15 Why There's a whole series of those. Are they -- is the content pertinent, or is it just a -MR. EASTEPP: The content is not, but at times the fact 16 that Wayne Ball's name is going to be on a record that he didn't 17 send to Gene Pedraza becomes relevant, but the body of the 18 report is not. 19 20 THE COURT: Well, why don't you just ask him. have him look at all of them. 21 MR. EASTEPP: 22 THE COURT: You know, just ask. This is going to take forever with him. Well, you know, pick out a couple or 23 whatever you think is important. 24 content if they're not in evidence. 25 You know, MR. EASTEPP: Just don't ask him about the Well, I'm going to offer them into Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 229 of 344474 1 evidence. 2 THE COURT: 3 MR. COONEY: 4 Well, it depends on what they're being offered for. THE COURT: 5 6 Well, y'all are going to object to it? If y'all aren't going to object to them, then why am I worried about it? MR. COONEY: 7 I guess my question is he has testified 8 that he emailed back and forth about MOAs, and so there's no 9 impeachment value. 10 We're not contesting that. THE COURT: 11 12 It's in evidence. Well, if you're not contesting their admission, then why are we arguing over it? MR. COONEY: 13 We're not contesting that fact, but we 14 would contest just putting in a bunch of MOAs that have nothing 15 to do with the case, a bunch of emails to clutter the record. 16 mean, we're not -- it's in evidence. 17 email traffic between me and Wayne Ball trading MOAs back and 18 forth. He has testified there is 19 THE COURT: 20 MR. EASTEPP: 21 after the event in question. 22 to the -- well, they were doing this quite often where Wayne 23 Ball's name ends up on MOAs. 24 September the 1st is not some -- 25 THE COURT: I Are these -- what are the dates of these? These, I believe they're both before and There's a whole series leading up So this event that happens on Well, here's -- I'm going to let you ask Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 230 of 344475 1 about them, but not the content until you offer them. 2 you just want to -- I mean, you can ask him whatever you want to 3 about the practice and procedure; and if he doesn't remember, 4 you can show him, well, isn't this an example of when you -- 5 MR. COONEY: He hasn't been asked yet. But if I don't think 6 he's been asked if there are instances in which Wayne Ball's 7 name ended up on an MOA that he drafted. 8 he can have at him to impeach. 9 10 MR. EASTEPP: THE COURT: 12 MR. EASTEPP: I can't object to that. This is -- there's not a rule of evidence called clogging the record. 11 I mean, if he says no, I'm not aware of that. I'm admitting -Right. I understand, Judge. That's what 13 I'm about to say. I'm going to go quickly through them where he 14 just recognizes his own emails as an attachment, and then I'm 15 going to offer them. 16 THE COURT: 17 MR. COONEY: All right. And I guess just so we note our objection 18 is they're hearsay except as necessary to impeach for a purpose, 19 for example, if he testified -- 20 21 THE COURT: I mean, I thought I heard you just say you admitted they were -- 22 MR. COONEY: 23 THE COURT: 24 MR. COONEY: 25 Well, I mean, are they hearsay? Sure. -- government's records. the content of them. Certainly they're government records, but So if it's -- a business record is the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 231 of 344476 1 fact of the email, so there are 15 emails or whatever, you know. 2 Those are all business records, the fact of the email and the 3 date that they occurred and whatnot, but the content of them are 4 hearsay. THE COURT: 5 Well, we can look at them. There isn't an 6 objection of clogging, but there is an objection as to 7 relevance. MR. EASTEPP: 8 9 it. THE COURT: 10 11 The relevance is -- I've already mentioned I mean, I think to the extent -- to the extent he's going to admit it, just ask him. MR. COONEY: 12 13 issue. 14 object to that. There's not much of an And if he doesn't, then he can be impeached. THE COURT: 15 That's my point. We can't I have a rule in cases that you can't admit 16 an exhibit unless it's, one, relevant; but two, you're going to 17 ask about that exhibit. 18 I'm not doing that now, but -- (Open court) 19 BY MR. EASTEPP 20 Q 21 emails. 22 just tell me if you recognize that it is printed -- a printed 23 email from you and that it has an attachment on it, not the 24 content of the attachment. 25 from you or to you, correct? Mr. Vargas, to expedite this, I'm going to show you several I think nearly all have an attachment. If you would Just that it appears to be an email Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 232 of 344477 1 A Yes. 2 Q And this one, just to differentiate them, is dated 3 June 29th, 2011, correct? 4 A Yes. 5 Q And it has an attachment as noted, correct? 6 A Yes. MR. COONEY: 7 Objection. It's the same objection as 8 before. The witness has testified that there are emails back 9 and forth between him and Wayne Ball. 10 THE COURT: 11 objection for now. 12 BY MR. EASTEPP 13 Q Again, do you recognize that as a printed email? 14 A Yes. 15 Q And it has attachments noted on the email that are printed 16 out underneath? 17 A You don't want me to read the attachment, correct? 18 Q Just the fact that there are attachments on there. 19 trying to expedite this. 20 A No, I understand, but -- okay. 21 Q Do you recall in one of your interviews with the agents, 22 they went over a bunch of emails with you? 23 A Several emails. 24 Q Right. 25 I'm going to let him -- I'm overruling the From Wayne Ball to me, yes. I'm Do you recall that? This is a very similar thing, isn't it? MR. COONEY: I apologize. I can't hear from the back. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 233 of 344478 1 I apologize. THE COURT: 2 You can move up. 3 BY MR. EASTEPP 4 Q 5 one of yours? 6 A Yes. 7 Q And it has an attachment? 8 A Correct. 9 Q Next one dated July 8th, almost 1:00 p.m. Again, the next one is June 29th at noon. Recognize it as That's from the defendant to me. Do you recognize 10 it as one of yours? 11 A Yes, it's to me. 12 Q And again has an attachment? 13 A These are emails. 14 Q This one does not have an attachment. 15 correct? 16 A Correct. 17 Q One dated July 11th, 2011, where you're CCed on it, correct? 18 A That's correct, I'm CCed. 19 Q It's got an attachment. 20 A Okay. 21 Q One dated July 26th, again to you, correct? 22 A Right. 23 Q Has an attachment? 24 A That's correct. 25 Q One dated July 29 at 9:15 a.m. to you with attachments. It's just emails, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 234 of 344479 1 A Yes. Just to clarify, all you're doing is it's to me and 2 there's attachments, right? 3 Q Yes, sir. 4 A Okay. 5 Q Just, as we say, for the record. 6 A Okay. 7 Q And this one is August 10th. 8 attachment. 9 A Same thing, to you, has an Correct. MR. COONEY: 10 Not what's in the body? And the government is willing to expedite 11 this by -- there's a bunch of emails in a folder that are from 12 someone to the agent, just like he's testifying. 13 purpose, we can move through it. THE COURT: 14 If that's the Go ahead, Mr. Eastepp. 15 BY MR. EASTEPP 16 Q Here's one to you August 16th with an attachment, correct? 17 A Correct. 18 Q One later on August the 16th with two attachments or an 19 attachment? 20 A Okay, yes. 21 Q August 17th without an attachment to you? 22 A Okay. 23 Q August 22nd with an attachment to you? 24 A Correct. 25 Q September the 2nd with an attachment? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 235 of 344480 1 A Correct. 2 Q September the 2nd at 11:23 a.m. with an attachment to you? 3 A Correct. 4 Q September the 6th with an attachment to you? 5 A Correct. 6 Q September 6th at 10:53 a.m. with an attachment? 7 A Okay. 8 Q Just an email on 1/31 on 9:26? 9 A Okay. 10 Q And one to you with attachments on 10/5/2011? 11 A Okay. 12 Q And lastly, one on 10/14 to you with an attachment, correct? 13 A To me and Kristofor Healey? 14 Q Right. 15 A Yes. 16 Q Right. 17 government computer? 18 A 19 20 And all those would have been received on your Yes. MR. EASTEPP: Your Honor, we had previously marked as Defendant's 7, and I would offer these under that number. 21 MR. COONEY: 22 THE COURT: Same objection. Okay. I'm going to sustain the objection 23 for right now vis-a-vis the attachments, but I'll be glad to 24 look at them if we want to go through them one by one. 25 any need to do that now, though? Can we -- Is there Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 236 of 344481 1 MR. EASTEPP: 2 THE COURT: I can move on to other topics. All right. Come back to it. 3 BY MR. EASTEPP 4 Q 5 particularly with Wayne Ball, well before September the 1st, he 6 was helping you after you get back from FLETC with cases, 7 correct? 8 A Before I got back from FLETC? 9 Q I'm sorry. Where we were on when I stopped, you were, in fact -- After you got back from FLETC before the 10 meeting. 11 A Yes. 12 Q And I assume -- you referred to him as Major Ball a few 13 minutes ago. 14 Harlingen together? 15 A Lieutenant Ball. 16 Q I thought I heard you say major, but I may have been wrong. 17 Was he somebody you respected, Wayne Ball? 18 A Sure. 19 Q He had been a cop a long time too, correct? 20 A Yes. 21 Q Had other law enforcement members in his family, correct? 22 A I don't know. 23 Q Well, that's in his family. 24 A Yeah. 25 Q So during this period of time leading up to what happens on I guess that's the lingo from when y'all were at I think his father was. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 237 of 344482 1 September 1, about how often would you and Wayne Ball be dealing 2 with each other and talking to each other about cases or you 3 asking him for advice, you know, as you earlier said? 4 A 5 Brownsville, when Agent Healey and I were reporting to 6 Brownsville, I didn't have very much communication with -- I 7 shouldn't say very much, as much communication with Agent Ball 8 as I did from June, July when I came back from the academy. 9 Q During June and July, how often were you talking to him? 10 A Just about every day. 11 Q Was he your go-to guy to ask questions of? 12 A Sure. 13 Q Did he -- was he able to answer all your questions when you 14 had an issue? 15 A Not all of them. 16 Q And if he couldn't, who did you go to? 17 A It depends. 18 example, this TECS system. 19 Marco was the guy to go to for TECS. 20 But as far as writing reports and what they're looking for, yes, 21 I'd go to him. 22 Q 23 agent that you would rely upon? 24 A 25 every single thing. About a month prior to that. Once I started reporting to It depends on what you're -- I mean, for He wasn't very familiar with it. Depends on what it was. So in addition to Wayne Ball, Marco Rodriguez was another I was giving you an example. I didn't go to Wayne Ball for Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 238 of 344483 1 Q And I -- 2 A So Marco was one, J.R. was another. 3 had been there a while. 4 Q 5 Brownsville? 6 A 7 housing, maybe late August, I would imagine. 8 the date. 9 Q I mean, the guys that When is it you and Special Agent Healey start officing in I don't know the exact date. I would have to say as far as I'm not sure of Well, if the -- if we know what occurred in your life on 10 September the 1st, back it up from there. I'm not trying to be 11 tricky. 12 A 13 understand is that you're asking when we started housing there. 14 We were going there -- I was already going over there, so I 15 would -- if I had cases in Brownsville, I would go and I would 16 sit there and do my reports. I'm really not. No, I understand. But what you have -- what you have to Now, you're saying like officially where the defendant and 17 18 the boss from that office said okay, you know, from this day 19 forward, I don't remember the day. 20 there, I would imagine, sometime in August. 21 Q 22 means. 23 coming down here and working cases? 24 A 25 in July. But we had started operating And based on that answer, I need to know what operating Were you going there in late July? I don't recall. Were you already I don't remember if I was going over there Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 239 of 344484 1 Q When -- give me your best estimate when you and Special 2 Agent Healey -- 3 A I did. 4 Q So it had only been like four weeks before the September 1 5 incident? 6 A If it was in the beginning of August, yes. 7 Q I wasn't there. 8 A I don't -- I don't remember. 9 remember what -- when we started operating or started reporting I said I figured it's in August, sometime in August. That's your best -That's the truth. I don't 10 straight to that office. I don't remember the date, but it was 11 before September 1st. 12 Q 13 the cases that were being generated or concerning Cameron 14 County? 15 A 16 what took us over there. 17 work coming out of the Brownsville area. 18 we were always going over to that office, and there was a quick 19 transition. 20 Q And were you still living in Harlingen? 21 A Yes. 22 Q So it was probably more convenient for you too? 23 A Well, the majority of our cases were in Harlingen and 24 Brownsville; so, yes, it was convenient to stay there. 25 Q When did y'all -- you and Special Agent Healey start getting Right around the same time. Right around the same -- that's We were going to have the bulk of our We caught ourselves -- And would Gene Pedraza have been involved in making that Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 240 of 344485 1 decision to allow you and Special Agent Healey to come down 2 here? 3 A Yes. 4 Q And the cases you started working, were they transfers to 5 you, or were they just anything new that was generated? 6 A I believe they were both. 7 Q And of the older ones, were they cases you already had? 8 A Yes. 9 Q And you brought those with you when you came down here? 10 A Yes. 11 Q Except the blue files stayed in McAllen, correct? 12 A Yes. 13 Q What you have day-to-day is called a working file, correct? 14 A Working file, yes. 15 Q And you described that as brown; is that correct? 16 A Yes. 17 Q And so if you're in Brownsville officing at the DEA, you've 18 got that working file with you, and the official file is where 19 Gene Pedraza is in McAllen, correct? 20 A That's correct. 21 Q So at any given moment, he wouldn't necessarily know what 22 was in your working file, correct? 23 A 24 that's not in the case file. 25 Q Nothing gets put into that working file other than the notes Okay. Notes would be like if you've gone and done a witness Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 241 of 344486 1 interview, correct, that's not yet been memorialized, correct? 2 A Correct. 3 Q So again my question is, that's something Gene Pedraza would 4 not have seen in the blue file because it's in your working file 5 down here, correct? 6 A The notes, correct. 7 Q The only time he's ever going to end up seeing what's out of 8 that working file is after something is memorialized and sent to 9 him, correct? 10 A Yes. 11 Q Meaning he's not driving down to Brownsville day-to-day 12 saying: 13 through it. 14 A Correct. 15 Q And that's -- that was not done. 16 file, correct? 17 A Correct. 18 Q So if you've run a TECS check or a CLEAR check or any NCIC 19 check, that's initially going to go in that working file until 20 you do an MOA saying: 21 whatever, correct? 22 A Yes. 23 Q So as that document is sitting in the file, Gene Pedraza 24 wouldn't have known that until it's memorialized and sent to 25 him, correct? Show me your brown working file and let me thumb That was your working I ran a TECS check. I ran a CLEAR check, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 242 of 344487 1 A Correct. 2 Q And did you ever pick up one of these older files where 3 somebody had performed work on it and had not, for whatever 4 reason, forgotten or whatever, to memorialize it, yet it was 5 still -- it was in the working file? 6 check. 7 A 8 not been memorialized, yes. 9 Q Like let's say a TECS Yes, I had some cases where work had been done and it had But if a database had been queried, for example, and the 10 printout is in there, most anybody could go back and look and 11 see when that printout was done, right? 12 A If they made a printout, yes. 13 Q Right. 14 A But, I mean, a lot of times -- yes. 15 question, yes. 16 Q What would you do with that kind of information? 17 A What do you mean what would I do with it? 18 investigative work or -- 19 Q 20 did you do with it on one of your older files when you got it 21 and you saw an agent had done real work on the file but it had 22 not been memorialized? 23 A 24 recall. 25 file and there was a report there that a CLEAR check had been It's on the printout. To answer your As far as As far as memorializing it, or did you ignore it, or what I don't remember what I did with it. But if -- I don't I'm sure there was, but if -- if I opened up a case Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 243 of 344488 1 completed, then I'd write up an MOA if I could determine who 2 wrote it. 3 and there was a CLEAR printout, I'd ask Agent Ball, "Did you do 4 this?" 5 Agent Ball did this CLEAR check on so-and-so date. 6 Q 7 agent gets a file doesn't mean that work goes to waste. 8 still of use to that file like you just described; is that 9 correct? If -- for example, if Agent Ball did a CLEAR check Like, "Yeah." Then I memorialize it on an MOA that So just because somebody had done the work before a new It's 10 A Correct. 11 Q Do you remember about how often that happened with the files 12 when you got them? 13 A 14 agent and get information that he had not memorialized. 15 Q 16 not have been kept in McAllen with Gene Pedraza, correct? 17 would have been in that prior agent's working file that got 18 transferred to you. 19 A 20 the -- if the prior agent would have put copies in the case 21 file. 22 Q 23 along here. 24 and things that aren't memorialized, correct? 25 A I can recall just one, one case where I had to go to an But again, that would have been in a working file that would I don't know. It I don't know if they would have put copies in We just went over that, Mr. Vargas, and I'm trying to move Right. But the work file is the thing that contains notes Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 244 of 344489 1 Q Those are never going to be put into the blue file until 2 it's memorialized, correct? 3 A Right. 4 Q So if you've inherited, for lack of a better term, an older 5 file from an agent and it had records in it like a TECS check or 6 a CLEAR check that not been memorialized, that would not have 7 been in those records, would not yet have been in the McAllen 8 file, correct? 9 A Right, if they weren't memorialized. 10 Q That's all I'm asking. 11 So did you think it showed some confidence in you that Gene 12 Pedraza allowed you and Kristofor Healey, who were fairly young 13 agents, even though you had a lot of experience, to be an hour 14 away from him? 15 A Sure. 16 Q And did you all start getting every new case that was opened 17 here? 18 A I believe we did. 19 Q And do you remember that you would get those by email from 20 him? 21 A 22 call us sometimes, say: 23 through duty call. 24 Q What does that mean, in the system? 25 A In EDS. Did you take that as a compliment? Whether or not it was email, I don't remember, but he would Hey, there's a new case that came It's in the system. In our EDS system. So you would access your EDS. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 245 of 344490 1 You would get a new case. You'd click on something and it would 2 refresh, and you'd go from having ten cases one day to 11 cases 3 the following day. 4 Q 5 or Enforcement Data System, I forget what the acronym is, but 6 it's the OIG's online electronic case file system, correct? 7 A Correct. 8 Q And for like you or for like Chris Healey, you could only 9 log in and see your own cases, correct? It's like, oh, I got another case. So let's talk about EDS. I don't remember. EDS is the Electronic Data System 10 A 11 people's cases. 12 Q You mean you could looky loo at some Dallas agent's cases? 13 A I don't remember. 14 Q The supervisors could access it, correct? 15 A I don't know. 16 Q If you just told me, Mr. Vargas, that Gene Pedraza would 17 call you and say: 18 in it, does that not tell you that he could access the system? 19 A 20 in Dallas. 21 yeah, of course. 22 Q 23 you understand whether Washington could access the system at the 24 headquarters level? 25 A No. I don't remember if we could access other I think we could. I don't remember. I don't. Access the system. You've got something new You're referring to an IO here, that he said looky loo I don't know if he could query that. But ours, He's our supervisor. So you knew your supervisors could access the system. I'm sure they could. Did Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 246 of 344491 1 Q So at any given moment as to your cases, you could look and 2 see what your cases were, right, online? 3 A Yes. 4 Q And your supervisor could look and see, correct? 5 A Yes. 6 Q Washington could look and see, correct? 7 A Correct. 8 Q What kind of information when you clicked on and you saw a 9 file like Manny Peña's name and number -- assume that's the way 10 it's listed in there, correct? 11 A Yes. 12 Q So you pull up your roster of cases. 13 case and you clicked on it, what does that show us next? 14 A 15 going to have a generic page there, electronic page of the 16 allegation. 17 correctly -- I don't remember -- you have to go into another tab 18 under documents, see what was uploaded in there. 19 The software had several tabs. You see the Manny Peña I mean, you open it up, it's Any reports that are written, if I recall So as far as that Manny Peña case, if he were to access my 20 Manny Peña case, all he's going to see are -- is the original 21 complaint from wherever it came from and that's about it, 22 because nothing had been inserted or uploaded into the actual 23 EDS system. 24 that time, I don't even think we were doing the uploading. 25 I'm not mistaken, I think the administrative officer was doing And to be quite honest with you, at that point at If Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 247 of 344492 1 it. We would finish with an MOA, get it memorialized or 2 finished, I think she would go in the case and insert it 3 electronically. 4 Q 5 Not MOAs, but you could enter data, right? 6 A Yes. 7 Q What kind of data could you enter in there? 8 A In the notes category, you can put anything. 9 that you spoke to so-and-so on so-and-so date, just like writing We didn't do that. But EDS also had other -- you could enter notes into EDS. You can put 10 it on a piece of paper. 11 Q 12 memorialized yet. 13 not going to see it in the document section. 14 the note section put in, "Ran TECS check today on the Manny Peña 15 case," or whatever. 16 A Yes. 17 Q And day-to-day that's what you were supposed to be doing, 18 correct, entering in what you've been doing on your cases, 19 correct? 20 A In the notes tab, no. 21 Q Into EDS. 22 A Day-to-day, yeah, I guess. 23 can put it in there. 24 saying, hey, if you did a TECS check, put it in there. 25 know we had five days to memorialize it. So, for example, you've run a TECS check, and it's not been I mean it's not been uploaded in, so you're You could still in Let's be more -- into EDS. I mean, if you wanted to, you I don't remember a mandate coming down I just Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 248 of 344493 1 Q You don't remember being told update your EDS before you 2 leave every day, seeing emails to that effect? 3 A 4 means a lot of things. 5 don't recall. 6 of stuff, whether or not we inserted into EDS. 7 through a transition of the software, if I'm not mistaken, from 8 when I got hired to September. 9 constantly doing updates to the system and everyone was learning Updating your EDS could be anything, your work hours. It As far as updating your EDS on work, I I mean, I did a lot of stuff. We all did a lot I think we went There was a -- there was 10 how to use it, including myself. 11 Q But it was the online tool that was being used? 12 A EDS, yes. 13 Q Right. 14 agent could see by simply looking at a computer screen without 15 ever having to look in a blue file or a brown file, correct? 16 A If they were inserting it, yes. 17 Q Which certainly, again, the agent should have been using it 18 for that purpose. 19 A We weren't. 20 Q Who, you and -- 21 A I don't remember using that system as you just mentioned. 22 don't remember doing TEC checks and then putting it in my notes 23 and updating my EDS. 24 update your EDS; but what it entailed, I don't remember. 25 Q So there were lots of things a supervisor or a case I I mean, I do recall the -- that statement, Day-to-day after y'all were down here at least in that four Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 249 of 344494 1 weeks or whatever it is before September 1, did y'all have 2 pretty free rein to work your own cases? 3 A 4 would we work? 5 Q Mr. Vargas, I'm trying to move along here. 6 A Well, you asked me whether or not we had free rein to work 7 our cases. 8 Q 9 supervisors? Well, yeah. They're our cases. I mean, what other cases What other cases would we work? Is that the kind of attitude that you used with your 10 MR. COONEY: 11 THE COURT: Objection. Sustained. 12 BY MR. EASTEPP 13 Q Were you largely working your cases with Kris Healey? 14 A Yes. 15 Q That's why you call him, quote, partner? 16 A Yes. 17 Q Which is not a federal term. 18 using, correct? 19 A Well, I guess. 20 Q How often would y'all be going to McAllen during that time 21 period? 22 A 23 stuff. 24 logs or our -- if the defendant or the ASAC wanted us over there 25 to assist other agents, but we didn't go there very often. That's just a term you're I've never heard it being a federal term. We wouldn't go very often. It was only for administrative Like I testified earlier, if we had to go do our vehicle I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 250 of 344495 1 don't remember. I would imagine it was, I don't know, once, a 2 couple times a month. 3 remember going to McAllen very often. 4 Q 5 were going to go to McAllen and catch some Gene time, face time 6 Gene? 7 A No. 8 Q Was that a phrase you would have used? 9 A No. 10 Q But if you saw an email, that may refresh your memory? 11 A Sure. 12 Q When you would go there, I guess you're now telling me it's 13 only maybe one time in a month that you went before September 1? 14 A 15 but the majority of the time we spent in Brownsville. 16 Q 17 did you use a certain office or space that you went into? 18 A The conference room. 19 Q Just as you had used it before? 20 A Yes. 21 Q And would Gene Pedraza on those occasions come in there and 22 talk to you? 23 A No. 24 Q Where would you talk to him? 25 A In his office. During that four week period, I don't Do you ever remember writing an email where you said you I said I don't remember how many times we went over there, When you went there for these logs or whatever the reason, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 251 of 344496 1 Q Would you always stop by and see him when you were there? 2 A We would see him in the morning. 3 in the morning and see him in the break room. 4 going and chitchatting in his office every time we went, no. 5 Q So y'all weren't especially close, I take it? 6 A No. 7 Q And, in fact, since you've been hired in January and been 8 gone for four months and now you're down in Brownsville, you've 9 spent a lot of time away from him up to September 1st since If we'd go, we'd go early But as far as 10 you've been hired, correct? 11 A Yes. 12 Q So how do you recall being notified that you needed to be 13 there for September 1st? 14 A The phone. 15 Q And who did the notification come from? 16 A The defendant. 17 Q And you knew the inspection was coming, right? 18 A Yes. 19 Q And how did you know it was coming? 20 A Through the defendant. 21 Q And everybody knew it was coming, correct? 22 A I'm sure. 23 say whether they did or didn't. 24 notified everyone else. 25 obviously they knew. I'm sure they did. I don't want to sit here and I was notified. I assume he The guys that worked in McAllen, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 252 of 344497 1 Q Again, it wasn't a secret, was it? 2 A No. 3 Q So pretty safe to assume everybody knew, correct? 4 A Safe to assume, yes. 5 Q And your military career, I assume you went through certain 6 kinds of inspections, right? 7 A Well, not internal inspections of our office. 8 Q Never the paperwork? 9 all that bureaucracy in the Air Force, there was no -- Nobody ever looked over anything? 10 A 11 called quality assurance where we'd have to go recert on certain 12 things. 13 to check our stuffs? 14 Q 15 the agency. 16 that. 17 A I know that now, yes. 18 Q What do you mean you know that now? 19 A I didn't know at the time. 20 to be an inspection coming up, I didn't know what it entailed. 21 I didn't know who the people were, where they were coming from. 22 I didn't know. 23 We didn't -- not that I recall. In I mean, we had what we But for anyone to come in for -- from out of our agency This inspection that went on in McAllen was not from outside It was from inside the agency. You understood When I was told there was going I was still learning about the OIG. I had a lot of questions when I got hired. I mean, that's 24 why I couldn't understand why we had these internal affairs 25 agencies under us, what their role was. You know, what are we Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 253 of 344498 1 if we have other internal affairs? 2 learning curving for me. 3 where they were come from. 4 Q 5 people coming to inspect us? So, I mean, it was a I didn't know who the inspectors were, That's a pretty simple question to ask. MR. COONEY: 6 7 to ask." 8 BY MR. EASTEPP 9 Q Objection. Who are these "It's a pretty simple question Is it not? 10 THE COURT: You can answer that. 11 THE WITNESS: Overruled. Is it not a simple question to ask? Yes. 12 BY MR. EASTEPP: 13 Q 14 asked that? 15 A Yes. 16 Q Who did you ask? 17 A I asked the defendant. 18 Q And? 19 A I asked what was the inspection going to entail? 20 should we expect, as I testified earlier. 21 didn't -- I wasn't concerned about the inspection up to that -- 22 leading to that. 23 was -- there was a lot of things that were going on prior to 24 that. 25 here in preparation for the inspection, like fine. Who are these inspectors coming to see us? And you never What But I didn't -- I I was trying to still get cases completed. I That's why when he said, hey, we need you to report over That's Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 254 of 344499 1 plenty of time. I'll be able to update my cases then. 2 Q 3 morning? 4 A When? 5 Q September the 1st of 2011. 6 A All my cases. 7 Q And what did you do with them when you brought them there? 8 A Nothing. 9 Q And what did you do with them in the conference room? 10 A I put them on top of the conference table. 11 anything when I got there. 12 what he wanted us there for. 13 Q And so you just sat in the conference room waiting? 14 A That's it. 15 Q And when do you remember him coming in there? 16 A 15, 20 minutes after I arrived. 17 Q And when he walked in there, had he ever had an opportunity 18 to have looked through those brown files as they existed at that 19 moment on that table? 20 A No. 21 Q So whatever information was in there, if it had not been 22 uploaded into EDS, into the official blue file, he would have 23 had no idea. 24 A Yes. 25 Q You've had other supervisors at other times go over cases And when you showed up in McAllen, what did you bring that I walked in the conference room with them. I didn't do I was waiting for the direction of You agree with that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 255 of 344500 1 with you, right, when you were at the P.D. or wherever? 2 A Yes. 3 Q It's a pretty common occurrence. 4 A Sure. 5 Q So when he came in there that morning, what was his -- his 6 attitude and demeanor when he walked in there? 7 A 8 had some things that he wanted us to get done. 9 to say sense of urgency, I guess. I wouldn't know how to describe it. I mean, obviously he I mean, I want 10 Q The inspection may not have been a big deal to you, but you 11 understood it was a big deal to the head of the office, right? 12 A Yes. 13 Q Big deal to Cindy as the administrative assistant, correct? 14 A I guess, yes. 15 Q I take it you had no collateral duties at that time? 16 A None. 17 Q So you weren't in charge of the firearms room or any of the 18 undercover equipment or any of that sort of stuff? 19 A No collateral duties. 20 Q But you can understand for the agents who were in charge of 21 those things that it might have been a bigger deal to them 22 getting all that ready. 23 A Yes. 24 Q So I take it you were not surprised that he was fairly busy 25 minded when he came in there that morning? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 256 of 344501 1 A No. 2 Q Did he sit where he normally would have sat when he was 3 talking to you on other occasions in that room? 4 A 5 prior times. 6 in there, he would just go in there and talk to me and leave, so 7 I don't know whether that was normal or not. 8 Q But he sat across from you in the conference room? 9 A He sat across from me. 10 Q And it's a fairly big conference table, is it not? 11 A Fairly big. 12 Q And the door is open? 13 A Yes, from what I recall. 14 Q Well, later we talk about people are coming in and out. 15 don't remember the door being open and shut, open and shut, do 16 you? 17 A No. 18 Q Right. 19 correct? 20 A I believe it was. 21 Q Do you recall if before he walked in there, you could hear 22 people in the coffee room? 23 A No. 24 Q You don't recall? 25 A I don't recall. That didn't happen often. I don't remember where he sat the I don't even know if he sat down. If he would go I just -- You It likely had been open all this time period, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 257 of 344502 1 Q Now, going back to where he first sits down, how did the 2 conversation start? 3 good morning, or how did it kick off? 4 A 5 his hands were mine. 6 Q And what does that mean? 7 A If they're assigned to me. 8 Q But what's in his hand? 9 A Those cases like that that are blue, internal cases, the Who -- was it just the normal pleasantries, He just sat down and asked me if the cases that he had in 10 case files. 11 Q So he walks in with a handful of these blue files. 12 A Yes. 13 Q Like I'm holding in my hand now. 14 A Yes. 15 Q Which, as we've already talked about, you've got your set of 16 brown files on one side of the table, and he walks in with blue 17 files, correct? 18 A Yes. 19 Q Did it make sense to you that because the blue file would 20 only have what's been uploaded and placed in it, that he would 21 bring it to compare to what might be in the brown file? 22 A Yes. 23 Q Logical move then that he would walk in there that way? 24 A Yes. 25 Q Did he let you see which blue files that he had in his hand? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 258 of 344503 1 A Yes. 2 Q And, I mean, did he like slide them across the table and let 3 you peruse them? 4 A Yes. 5 Q And did you just quickly peruse them and say, yeah, those 6 are all mine? 7 A Yes. 8 Q Do you remember how many? 9 A I believe they were all the old '10 cases, 2010 cases. I 10 believe there was four or five of them. 11 Q 12 any of them been cases you were the original agent on? 13 A 14 correctly. 15 Q 16 you're hired? 17 A Yes. 18 Q Which meant that every one of those would have been worked 19 on by someone before you, correct? 20 A In theory, yes, they should have been worked on. 21 Q Right. 22 before you. 23 A Yes. 24 Q So that you're inheriting them from -- at least from another 25 agent, whether that agent had done much on it or not. And were they all older files that you had inherited, or had They were all older cases that I inherited, if I recall And that's likely logical because they're in 2010 before At least had been opened and assigned to somebody Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 259 of 344504 1 A Yes. 2 Q So after he slides those across to you and you confirm that 3 those are, in fact, your 2010 blue files, what happened next? 4 A 5 Peña case. 6 Q 7 much work done on it, correct? 8 A That's correct. 9 Q But again, at the point he's focused in on it, had he He focuses in on one particular case, which is the Manny And he focuses in on it because it, in fact, had not had 10 requested and received the brown file and perused it? 11 A No. 12 Q So again, even on the Manny Peña file, he has no idea what's 13 in the brown file, correct? 14 A Correct. 15 Q So be it that there's nothing in it like there's nothing in 16 the blue file, or there's reams of material of checks and 17 surveillances or whatever, he didn't know that, correct? 18 A That's correct. 19 Q And as we now know from what the government showed you as to 20 those MOAs, there, in fact, had been a lot of work done that had 21 never been memorialized at that moment, correct? 22 A Yes. 23 Q And Gene Pedraza would not have known that at that moment, 24 correct? 25 A Correct. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 260 of 344505 1 Q Because it had not been uploaded into the system. 2 A That's correct. 3 Q So when he starts focusing in on the Manny Peña case and the 4 gap, what do you recall being the first thing that he said? 5 A 6 activity on this case. 7 get it taken care of, clean it up, which I didn't have a problem 8 with. 9 me. He said: I'm going to need you to fill in a gap of an There's a large gap in it. And when you I thought he was referring to the time it was assigned to And again, he wasn't aware of the work that I had done. 10 Q 11 anybody else's work that might have been placed into that file 12 that was not memorialized. 13 A Correct. 14 Q How early on was it do you remember that he talked about you 15 getting help to do this? 16 A 17 was telling me I had to do. 18 in the case, you need to clean it up for the inspection, I 19 automatically assumed that he was talking about the time, June, 20 when it was assigned to me. 21 But in addition to that answer, he also was not aware of Oh, I think it was after the fact that I realized what he When he told me there's a large gap So when he said that to me, I told him I can take care of 22 that. I don't -- I don't need Kris -- well, he explained to me 23 what I had to get done. 24 Kris to help you. 25 when Agent Healey -- excuse me. He goes that's why I'm going to get I told him I don't need Kris' help. That's That's when Agent Healey was Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 261 of 344506 1 brought up in the conversation. 2 Q 3 were already doing for each other anyway, was it not? 4 A 5 activity. 6 Q But helping each other out on cases was something -- 7 A Yes. 8 that or surveillances, yes, he would assist me and help me. 9 Q When he brings up Kris Healey and helping, that's what y'all He wasn't writing my -- my MOAs, though, my memorandums of I would write them. If we were going to do an interview or things like Right. But even in a pinch, you could have asked Kris 10 Healey to write up like a TECS check that you had printed out, 11 correct? 12 A Sure. 13 Q So you and Kris Healey helping each other and being the two 14 agents in Brownsville just doesn't sound like an unusual request 15 or statement to say, "Why don't you get Kris to help you?" 16 A 17 was -- he had collateral duties. 18 So I knew that he was going to go over there not only to clean 19 up his cases, but to update his property inventory. 20 At that point it was unusual to me because I knew that Kris He was the property manager. So when he told me he was going to get Kris to help me, I 21 knew Kris already had a lot on his plate. That's when I told 22 him I don't need Kris' help. 23 already drafted things up. 24 I didn't want him bringing Kris to help me do something that I 25 could have done. I can do this myself. I've So that's -- that was unusual to me. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 262 of 344507 1 Q And what was his answer to that, "he" being Pedraza? 2 A After I told him that I had already drafted things up from 3 June, several things to fill in the gap from June to September, 4 his response was, "No, I don't think you understand what I'm 5 telling you to do." 6 Q And that's the order you remember those things occurring in? 7 A Yes. 8 Q And you've read your grand jury testimony? 9 A Yes. 10 Q How many times? 11 A Several. 12 Q Would it help refresh your memory if you read it again about 13 those sequence of events? 14 A Yes. 15 MR. COONEY: Objection. 16 doesn't remember something. Witness has not said that he What are we refreshing? 17 THE COURT: I'm going to allow it. Go ahead. 18 MR. COONEY: 19 MR. EASTEPP: It's on page -- I handed him 43 and 44. 20 THE WITNESS: Okay. Could we please get a line and page? 21 BY MR. EASTEPP 22 Q Now, does that refresh you about the sequence of events? 23 A Yes. 24 Q Concerning Kris Healey and the mention of Kris Healey? 25 A Yes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 263 of 344508 1 Q It was fairly early on in that conversation, wasn't it? 2 A Right. 3 was -- yeah, it was early. 4 Q 5 Pedraza walked in there until these events concluded, how long 6 was that? 7 A Not more than 15 minutes. 8 Q Is it a chance it was even less? 9 A Possibly. 10 Q So after that -- that issue that he has asked about getting 11 Kris to help, you now recall he tells you, right, to -- "I don't 12 think you understand what I'm telling you," right? 13 A 14 do it myself, and that's when he tells me, "I don't think you 15 understand what I'm telling you to do." 16 Q 17 than one. 18 A Are you asking me? 19 Q Yes. It didn't last very long, the entire meeting. In fact, let's stop on that point. Right. So it From the time Gene After I tell him I don't need Kris' help, that I can Meaning time is of the essence. I need this done. Two can do the work faster We're about to get inspected. Isn't that a reasonable interpretation of that? 20 MR. COONEY: 21 THE WITNESS: Objection. That's not the way I interpret it. 22 BY MR. EASTEPP 23 Q 24 don't think there's an alternative way to look at it? 25 A But you're just interpreting it in your mind, right? We had two weeks for the inspection. You It was only going to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 264 of 344509 1 take me 30 or 40 minutes to knock out those drafts. 2 Q He didn't know that, correct? 3 A He didn't know what? 4 Q How long it was going to take you to do those -- 5 A I had just told him it wasn't going to take me very long at 6 all. 7 Q 8 file, did he? 9 A Well, he didn't know, did he? He had not seen the brown He should have after I told him. I told him I had 10 already -- I had already wrote drafts. 11 them. 12 seem to understand what I'm telling you to do." 13 Q 14 coming. I told him that. I just had to finalize "What's this?" He told me, "You don't Which is -- he -- let's get it done. We got an inspection What was the next portion of the conversation you recall? 15 16 A After I -- my response to him was: 17 understand. 18 is when we looked at the case, and he brought to my attention he 19 was talking about the time the case was opened, which is 20 March 2010, to June when it was assigned to me. 21 said: 22 telling me to do. 23 Q 24 transcript? 25 A Okay. Okay. I don't Well, what are you telling me to do? Okay, you're right. That That is when I I did not understand what you were Do you recall reading what you just said in your grand jury Yes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 265 of 344510 1 Q Could you show it to me? 2 A Show you what? 3 Q What you just said, that piece of that conversation. 4 MR. COONEY: 5 THE COURT: 6 BY MR. EASTEPP 7 Q Objection. Sustained. And you've read it how many times? 8 MR. COONEY: 9 THE COURT: Objection. Sustained. 10 BY MR. EASTEPP 11 Q 12 trying to get the file up-to-date, right? 13 the conversation moves to next? 14 A 15 understand what you were telling me to do. 16 Q 17 up-to-date in general terms? 18 A No. 19 Q You don't remember talking about techniques or databases 20 or -- 21 A Oh, I didn't understand your question. 22 Q So when this issue came up, you say: 23 before I got there. 24 A 25 to fill in those gaps. So after this "I don't need Kris thing," it moves on to just Yes. When I acknowledge that: That's the piece of You're right. I did not And was there a talk about what could be done to get a file Well, the case existed What was his response to that? He told me he needed me to fill in the gaps, write reports That's when he said -- that's why I was Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 266 of 344511 1 going to get Agent Healey to help me on them. 2 Q You're saying gaps. 3 A Yes. 4 Q Have you used a different word at different times? 5 A I'm sure I have. 6 Q Bridge? 7 A Yes. 8 Q Which word do you recall him using? 9 A Both. 10 THE COURT: Mr. Eastepp, are you at a stopping place 11 where we can take a break? 12 MR. EASTEPP: 13 THE COURT: 14 15 Ladies and gentlemen, let's take about a ten minute stretch break. (Jury leaves courtroom) 16 THE COURT: 17 MR. EASTEPP: 18 Yes, sir, I am. How much longer do you think you have? Well, I'm just now getting to his grand jury testimony, Judge. 19 THE COURT: 20 THE WITNESS: 21 THE COURT: 22 MR. EASTEPP: And on that subject -- Y'all can sit down. You can step down. Step down? Yeah. This issue of objections to me using the 23 grand jury testimony, Rule 613 allows witness' prior statements. 24 I'm not using a 302 here. 25 THE COURT: I'm using his sworn testimony. You can impeach him if that's what you're Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 267 of 344512 1 trying to do. 2 MR. EASTEPP: 3 THE COURT: Right. Well, you need to properly impeach him. 4 need to follow the impeachment rules, which you haven't been 5 doing. You That's why I sustained the objections. 6 MR. EASTEPP: 7 MR. COONEY: 8 MR. EASTEPP: 9 MR. COONEY: All right. I'm fine with you impeaching him with it. Okay. Thanks. And if may say, I mean, if it's 10 impeachment, it should be, you know, present the question and 11 the answer as opposed to refreshing recollection. 12 purpose of my first objection, so that's all. THE COURT: 13 14 All right. That was the Let's take ten minutes. (Recess taken from 4:32 to 4:46.) 15 THE COURT: 16 MR. COONEY: 17 All right. Are we ready to go? Yes. (Jury enters courtroom) 18 THE COURT: All right. 19 Continue, counsel. Ladies and gentlemen, be seated. 20 BY MR. EASTEPP 21 Q 22 "Well, I wasn't working here then" came up, what was the next 23 thing you remember happening, being said? 24 A 25 do, there was a conversation about I didn't understand how he Mr. Vargas, in the conference room when this issue of, Once I acknowledged that, what it was he was telling me to Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 268 of 344513 1 wanted me to write checks or write reports during the time frame 2 I wasn't here for, at which point his response was, "That's why 3 I was going to get Agent Healey to help you." 4 Q 5 about ideas of how a file could be bridged? 6 A 7 in particular. 8 Q 9 investigation? And what were the things that -- was there a discussion I specifically remember discussing writing up checks, TECS The kind of things that are normally done in an 10 A Yes, that's correct. 11 Q And you specifically remember saying what? 12 A Excuse me? 13 Q You specifically remember what being said? 14 A I recall having a discussion about TECS, where I told him if 15 I write a report with regards to TECS, that can be keystroked. 16 That means it can get checked. 17 or not done. 18 Q 19 February the 20th of 2012 in the grand jury, do you not? 20 A Yes. 21 Q Do you recall being asked, "And again as you write here, he 22 told you to write" -- They can verify if it was done Do you recall giving sworn testimony on February the 12th -- 23 MR. COONEY: Objection. Page and line please? 24 MR. EASTEPP: Page 46. I apologize, Mr. Cooney. 25 THE COURT: Why don't you show the witness the statement Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 269 of 344514 1 first. MR. EASTEPP: 2 Page 46, starting at line 16. 3 BY MR. EASTEPP 4 Q 5 again as you write here, he told you to write things that are 6 traditionally for investigations and he would take care of 7 having it signed; is that correct?" 8 You corrected the question: 9 Do you recall being asked on that date under oath, "And "Right. He didn't say the word "traditionally." And your answer: 10 "Actually I don't remember what he said, 11 but we kind of -- I concluded, okay, well, I got an idea of what 12 he's looking for." 13 A 14 being traceable, I knew what he was looking for as far as write 15 stuff up at -- they're not going to be able to tell if it was 16 done or not done by that person. 17 Q I can come back up here with the book to show you. 18 A Well, I'm not sure what your question is. 19 reiterated the same thing, and I'm telling you the same thing. 20 Q 21 read? 22 A What was your question? 23 Q The question and answer I read from your grand jury 24 testimony. 25 A Yes. After we had the discussion about the TECS checks You just Do you recall the question and answer we just -- I just Yes, that was said. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 270 of 344515 1 Q And that was your answer then. 2 your mind in February 10th of 2012? 3 MR. COONEY: 4 THE COURT: 5 THE WITNESS: Were the events fresher in Objection. Overruled. Were they fresher then? 6 BY MR. EASTEPP: 7 Q Right. 8 A They should have been, but there was a lot going on during 9 that time during the grand jury. 10 Q 11 conversation as you recall it? 12 A 13 walks in. 14 excuse me? 15 Q 16 and Mr. Pedraza that you've testified to before Mr. Healey walks 17 in? 18 A 19 writing -- about what was going to be written. 20 on it, I don't recall. 21 statement to him, was like: 22 those are key strokes. 23 Now, moving on, what was the next portion of the At some point during that -- that conversation, Agent Healey And it's at that point where I told him that agent -- You don't recall a whole lot of other discussion between you We went back and forth about that TECS check, about Now, the details But it was clear to me after I made the Sir, if I write up a TECS check, You can check them. At some point during that time, Agent Healey walks in. He 24 said, "Well, that's why I'm going to get Agent Healey to help 25 you out with this." Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 271 of 344516 1 Q MR. COONEY: 2 3 Mr. Vargas, let me stop you there. Objection. He needs to let the witness finish the answer to the question. 4 MR. EASTEPP: 5 THE COURT: 6 Again -- I object to the narrative answer. I think he was finished. Go on to the next question. MR. EASTEPP: 7 8 BY MR. EASTEPP 9 Q All right. Again as we've established, this grand jury testimony is not 10 foreign to you, correct? 11 A Correct. 12 Q So do you remember in the grand jury testimony being asked 13 the sequence of events just like I'm doing as it moved on in 14 real time? 15 A Yes. 16 Q All right. 17 happened 30 minutes later" and then come back 15 or whatever? MR. COONEY: 18 19 They weren't jumping around going, "Tell me what We're talking about grand jury testimony sequencing? MR. EASTEPP: 20 21 BY MR. EASTEPP: 22 Q 23 the events, correct? 24 A 25 Objection. Talking about the flow of the events. You were asked in the grand jury the chronological flow of I don't recall. MR. COONEY: Objection, relevance. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 272 of 344517 THE COURT: 1 Sustained. 2 BY MR. EASTEPP 3 Q 4 where it talks about the TECS checks? When -- in the grand jury testimony, can you direct me to 5 MR. COONEY: 6 THE COURT: Objection. Sustained. 7 BY MR. EASTEPP 8 Q 9 February 10th of 2012 on page 47, line 22, where you were asked: Do you recall being asked on February 12th or 10 "And as you said, one of the things you remember him mentioning 11 is database checks, correct?" 12 A Yes. 13 Q And, "I believe so, yes"? 14 A Yes. 15 Q And database checks is a much broader term than saying TECS 16 checks, correct? 17 A 18 database checks such as TECS checks. 19 I said about key strokes with TECS checks. 20 Q 21 do you recall being asked, "Well, one of the things when Gene 22 suggested you do database checks, you told him that you couldn't 23 do that because there's a record of each when -- a record of 24 when each of those databases are queried, correct?" 25 I believe that's the way the conversation started, to do That's when I stated what On page 49 of the same testimony we've been talking about, And you answered, "Right, I believe we discussed that." Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 273 of 344518 Do you recall that question and answer? 1 2 A Yes. 3 Q And had nothing about key strokes as you've said four or 4 five times today, does it? 5 MR. COONEY: 6 THE COURT: 7 (At the bench) 8 THE COURT: 9 Objection. May we approach on this? Yes. Mr. Eastepp, that's an improper way of using grand jury testimony. If you want to impeach him, that's fine. 10 Show him the statement, show him the question, show him the 11 answer. 12 and I'm not going to allow that. But you just reading grand jury testimony is improper, MR. COONEY: 13 And if I can add on this particular one, it 14 is misleading because in the paragraph right before this 15 question, Agent Vargas is talking about TECS checks and key 16 strokes. THE COURT: 17 18 And that's why -- and that's why you're supposed to show them -- 19 MR. COONEY: 20 THE COURT: 21 Thank you. -- the page and let them read the content. (Open court) 22 BY MR. EASTEPP 23 Q 24 room? 25 A At this point in time in the conversation, who all is in the At which point? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 274 of 344519 THE COURT: 1 Yeah, you may want to be more specific. 2 Which point? 3 BY MR. EASTEPP 4 Q 5 and database checks and those things. 6 A The defendant and I. 7 Q Meaning no one else is in there? 8 A The defendant and I. 9 Q Now, who is the first extra person that walks in? 10 A Agent Healey. 11 Q And how long was he in there? 12 A I don't think he was even there for past a minute. 13 Q Okay. 14 discussion was, correct? 15 A Correct. 16 Q And when he walked out -- or what's the next sequence of 17 events as to who comes in and who goes out? 18 A Agent Healey walks out. 19 Q And what were the circumstances of Agent Ball arriving? 20 A The circumstances that led to that was when Agent Ball 21 walked -- excuse me, when Agent Healey walked out, he walked out 22 because I informed the defendant that Agent Healey can't help 23 with it either because he wasn't here in 2010 either. 24 summoned or he told Healey, "Get Wayne," or Wayne heard. 25 Somehow or another, Wayne walks in. Where I just left off where we are talking about TECS checks No one else is in there. Meaning he could have heard very little of what the Agent Ball comes in. He He stands to my left. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 275 of 344520 1 Defendant is still in front of me. And he walks in, and then I 2 begin to tell -- explain to Agent Ball of what's going on. 3 Q And how do you recall telling him? 4 A I told Agent Ball that the defendant is telling me to fill 5 in the gap on this particular case starting from the time when I 6 wasn't here, 2010, June, and he wants me to write up things, 7 checks. 8 example, he wants me to do database checks, for example TECS. 9 And I was explaining to him that those things are traceable, and 10 it can come back and show that they weren't done by you, because 11 he's going to want you to sign them. 12 Q 13 Gene Pedraza didn't understand that TECS checks or CLEAR checks 14 or any other database created records of who logged in there? 15 A 16 informed him of that. 17 Q 18 border for years how TECS worked? 19 A 20 that, that they were keystroked. 21 Q 22 right? 23 A 24 used TECS. 25 Q I remember telling Agent Ball as well like, for Let me stop you right there. Was it your impression that I know for a fact that he wasn't aware of TECS because I Now, the others, I don't know. You informed him after he had been working cases on the Yes. I had just recently had a course on TECS, so I knew But TECS has been around for decades, or at least for years, At that time I didn't know. So it was new to you. I was new to TECS. I had never You don't know what was new to him is Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 276 of 344521 1 the point. 2 A Yes. 3 Q Yes, what? 4 A Yes, I didn't know what was new to him. 5 Q Right. 6 of the office didn't understand databases? 7 A At that point, yes. 8 Q You thought he did not understand databases? 9 A I knew that he didn't understand that TECS checks were So do you really think the special agent in charge 10 keystroked. 11 Q And that's because you imparted this knowledge to him? 12 A No, because he told me: 13 check. 14 Q 15 conversation, meaning you're not -- 16 A 17 or just the entire time we were in the conference room? 18 Q I got confused. 19 A Yes. 20 Q When was that? 21 A After FLETC. 22 Q And that you came back and educated him as to how TECS 23 worked? 24 A 25 request that he was telling me, I informed him. Okay. Well, then, don't do a TECS So you're saying that all occurred in this -- this What conversation? When Wayne -- when Wayne Ball was there, You said you went to some TECS training. I didn't educate him. I informed him. Based off of the I wouldn't call Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 277 of 344522 1 it educating him. 2 Q 3 with him. 4 he understood databases? So on September the 1, you've already had that conversation He's been an SAC for a while. 5 MR. COONEY: 6 THE COURT: Don't you think again Objection. Sustained. 7 BY MR. EASTEPP 8 Q 9 when you tell Wayne Ball that, what was Gene Pedraza doing? Now, after that particular -- when Wayne Ball walks in there 10 A He was sitting there. 11 Q What was his demeanor? 12 A The same as it was when he walked in. 13 Q Like it's just another day of talking about cases with -- 14 A Like he expected us to do it. 15 Q It was like any other day that he's talked to you about a 16 case as to his demeanor? 17 A 18 what his demeanor was. 19 20 21 22 He had never asked me to do that before, so I don't remember MR. EASTEPP: Your Honor, can the witness be instructed to answer my questions? THE COURT: He just said he didn't remember what his demeanor was. 23 THE WITNESS: 24 THE COURT: 25 THE WITNESS: When Wayne Ball walked in, sir, I was -- Wait, wait, wait, wait. I'm sorry, sir. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 278 of 344523 THE COURT: 1 Wait for the next question. 2 BY MR. EASTEPP 3 Q 4 been used? 5 A No. 6 Q It was never used, was it? 7 A That's correct. 8 Q The word "lie" was never used? 9 A That's correct, it was not used. 10 Q The word "falsify" was never used? 11 A No. 12 Q The word "make it up out of the air," any term cliché like 13 that, nothing like that had been used, correct? 14 A No. 15 Q All this is how you're interpreting these words from him, 16 correct? 17 A Correct. 18 Q Did he seem confused in this conversation? 19 A I don't recall. Up to this point in time, had the word "fabricated" ever It was not used. 20 MR. EASTEPP: 21 THE COURT: 22 MR. EASTEPP: May I approach, Your Honor? You may. Page 69, 70. 23 BY MR. EASTEPP 24 Q 25 Were you being intimidated by Gene Pedraza as you recall? I'll try to do this in an expedited fashion, Mr. Vargas. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 279 of 344524 1 A No. 2 Q Did he seem confused to you now that you've refreshed your 3 memory? 4 A 5 about the abilities of keystroking the TECS checks, yes. 6 Q 7 a three way conversation, correct? 8 A Yes. 9 Q And the point that I've just showed you is when you've 10 Yes. Wayne Ball is standing there at that point, right? MR. COONEY: Objection. If he wants to read the whole question and the whole answer, no objection. MR. EASTEPP: 13 14 So it's described him as being confused as to what's going on. 11 12 He was confused when I explained what I did tell him I was trying to do it in an expedited fashion. 15 MR. COONEY: 16 THE COURT: Whole question and whole answer. Go to your next question. 17 BY MR. EASTEPP 18 Q How long was Wayne Ball standing there? 19 A It only took a few minutes. 20 Q And up to that time, had you known Wayne Ball to be a person 21 that was corruptible? 22 A No. 23 Q So Special Agent Pedraza, the special agent in charge, has 24 now called you in who's not a friend of his, barely knows you as 25 an employee and a veteran cop and federal agent and said: Not very long. Hey, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 280 of 344525 1 let's commit a federal crime together? That's the way you 2 remember these events? 3 A Yes. 4 Q Yet he never used the word fabricate, lie or any of those 5 other things that I went over, correct? 6 A Correct. 7 Q Who walked out first, Gene Pedraza or Wayne Ball? 8 A I don't remember. 9 Q Anything unusual about it? 10 A No. 11 Q Was Gene Pedraza's demeanor different as he walked out than 12 when he walked in? 13 A 14 going to fill in that gap. 15 Q So he was whistling, what? 16 A He said: 17 Don't send them to Jody. 18 Q 19 before the inspection, all MOAs were going through Special Agent 20 Pedraza, correct? 21 A I wouldn't know. 22 Q You were not an agent in the office? 23 A I was, but I don't know if everyone else was sending them to 24 him. 25 Q I think they walked out together. Any hollering, screaming? Well, he was happy because he knew that there -- we were Okay. I mean, there was a solution. Dancing? Get it done. What's happy? Send them directly to me. But at that particular point in time, though, two weeks Because you were aware of the backlog with Jody Warren, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 281 of 344526 1 correct? 2 A Regarding what? 3 Q MOAs. 4 A I was aware that he was tardy in responding to MOAs, but I'm 5 not sure exactly whether or not he had hundreds of MOAs that he 6 hadn't got to. 7 Q 8 time was of the essence before this inspection, did you not? 9 A Yes. 10 Q To get cases updated, correct? 11 A Yes. 12 Q So having Special Agent Pedraza say send them to me so it 13 can be updated was not an unusual request at that point in time, 14 was it? On September the 1st, Mr. Vargas, of 2011, you understood 15 MR. COONEY: 16 THE COURT: Objection. Calls for speculation. Sustained. 17 BY MR. EASTEPP 18 Q 19 of there, where did you go? 20 A I didn't walk out behind them. 21 Q So you never walked out of there? 22 A Yes, I walked out of there, but not immediately after they 23 walked out. 24 what happened. 25 That was, I don't know, ten minutes after the meeting. So what you did -- or let me say when you first walked out I stayed there. It was after Agent Healey came in and was asking I told him I didn't want to talk about it there. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 282 of 344527 1 Q And then what happened after you and Agent Healey talked? 2 A At Subway's or in the conference room? 3 Q I wasn't there. 4 A Well, I'm not sure what part of it you're asking me. 5 Q Let's go with next. 6 A I'm sitting in the office by myself after they walk out. 7 Agent Healey walks in a short time after, asks me what happened. 8 Q 9 20 feet down the hallway and go: 10 And it never hit your brain as you're sitting there to walk Let me get this straight. What did you just say? 11 MR. COONEY: Objection, argumentative. 12 THE COURT: 13 THE WITNESS: Overruled. I didn't have to. It was clear to me what 14 he wanted me to do. 15 BY MR. EASTEPP: 16 Q 17 there and clear it up? 18 A No. 19 Q You decided the better course of action as you sat there 20 privately in that conference room was to commit a crime instead 21 of walking down and saying either: 22 screw you fella. 23 A I wish I had done that, but I didn't. 24 Q Have you thought up to this moment that it's because you 25 misinterpreted the events and not Gene Pedraza saying what you It -- my question was it never hit your brain to walk down Let me get this straight, or I'm not doing this? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 283 of 344528 1 say he said or you interpreted what he said? 2 A No, I didn't misinterpret. 3 Q But again, the words fabricate, lie, falsify, fraud, nothing 4 like that ever came out of his mouth? 5 A It didn't have to. 6 Q So after you talked to Special Agent Healey where y'all went 7 over -- y'all ate, and do you remember somebody saying at that 8 time period: 9 A We both did. 10 Q So that was -- those weren't words that were said in the 11 conference room. 12 Kris Healey, correct? 13 A 14 why we said let's go talk about this somewhere else. 15 Q 16 the Subway, do you not? 17 A Yes. 18 Q After that, when is it that y'all talked to Wayne Ball 19 again? 20 A 21 directly back to the office, which is across the street. 22 entered the office, went down the hallway to the conference 23 room, I believe Wayne Ball may have been there in the lobby 24 or -- or, excuse me, in the foyer or whatever you want to call 25 it where the reception is, and he followed us into the This is F'ed up? I wish I did. I didn't. Do you recall that? Those were words that were said with you and We may have said it in the conference room as well. That's You recall you and Kris Healey said that when you were at Shortly after we finished eating at Subway's, we went As we Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 284 of 344529 1 conference room. So it was as soon as we got back, he followed 2 us in there to the conference room. 3 and Wayne Ball. 4 Q 5 reports? 6 A It was around that time, yes. 7 Q And you were using real events, correct? 8 A That I had done, yes. 9 Q That Gene Pedraza had never seen, correct? 10 A Correct. 11 Q Because you never opened that brown file while he was in 12 there during this conversation, correct? 13 A That's correct. 14 Q So you start typing those up using these real events. 15 assume you used the skills that you had acquired up to that 16 moment, meaning you were trying to write something that looked 17 very real. 18 A 19 hard or not. 20 them up. 21 That was about it. 22 was very hard. 23 testified to this. 24 a Saturday or a Sunday. 25 it. It was myself, Agent Healey And it's at that point in time you started typing these And I I don't know how to explain whether or not I was trying real It wasn't very hard to do it. I had already wrote All I did was change the dates, change the names. Whether you want to -- I don't think that I didn't sit there and think -- again, I I was upset. I didn't even go check whether or not it was I didn't -- I was disgusted about doing I was angry. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 285 of 344530 1 Q But anybody who read them would have said, "This looks 2 real," correct? 3 A Correct. 4 Q And that was your intent. 5 you changed some dates, but you wanted it to look real, correct? 6 A 7 do. 8 Q 9 in that -- everything you've described where he said, "You got You used the real one. You say My intent was just to follow orders, do what he told me to Whether or not it looked real or fake didn't matter. Let's go back then, this thing order. You must do this. Tell me where he ever 10 to do this. Here's what you have to do." 11 You've never said that to date, so what is an order? 12 A 13 saying when he tells you to do something, it's an order. 14 Q Including committing a crime? 15 A That's why I'm here. 16 Q I mean in the Air Force, would you have killed a civilian 17 because some officer told you to? When you have a GS-15 and I'm a GS-9 on probation, I'm 18 MR. COONEY: 19 THE COURT: Objection. Sustained. 20 BY MR. EASTEPP 21 Q 22 he's used any term, rather, "I'm telling you to do this. 23 ordered to do this," or anything like that, correct? 24 A He didn't have to, no. 25 Q You're interpreting that that's what he was saying? But the words -- he never used any term -- you've never said You're Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 286 of 344531 1 A That's what I interpreted, yes. 2 Q So when Wayne Ball comes into the conference room, when is 3 it that you and Healey have this discussion with him and he says 4 the F word back? 5 A What do you mean when? 6 Q Yes. 7 A -- at what point? 8 Q How do you interpret when? 9 talking about, Mr. Vargas? As in time frame or -- Is it in this same setting we're 10 A Yes. 11 Q Okay. 12 A At the end of it. 13 Q And what is it you say he said? 14 A "Fuck you guys. 15 Q Mr. Vargas, the phrase you've added, "do it," is that what 16 you've always said that Wayne Ball told you on that particular 17 occasion? 18 A I believe so. 19 Q Would it refresh your memory if you saw an earlier -- or saw 20 a statement from an earlier time? 21 A 22 23 24 25 When in that setting? Do it." Yes. MR. COONEY: Objection. The witness has not said that he does not recall something about this conversation. THE COURT: Overruled. You can approach. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 287 of 344532 1 BY MR. EASTEPP: 2 Q 3 when -- about these events? 4 MR. COONEY: 5 THE COURT: 6 THE WITNESS: Were the events clear in your mind on May 30th of 2012 Objection. Overruled. No. 1, that document, what is it? 7 BY MR. EASTEPP 8 Q It memorialized -- 9 A Is that my testimony? MR. COONEY: 10 Objection. I believe the next question 11 should be, "Does that refresh your recollection" about whatever 12 his prior question was. THE COURT: 13 That I'll sustain. 14 BY MR. EASTEPP 15 Q 16 Wayne Ball used on that particular day? 17 A I recall him saying, "Fuck you guys. 18 Q Well, in an earlier occasion, that's not what's in this 19 report, is it? Does that refresh your recollection as to the exact words 20 THE COURT: 21 (At the bench) MR. EASTEPP: 22 23 24 25 Wait, wait, wait. Do it." Y'all come up here. You can see what it is. It's a direct quote. THE COURT: is that a 302? I'm not letting you impeach somebody off -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 288 of 344533 1 MR. COONEY: 2 THE COURT: 3 MR. EASTEPP: FBI policy, if they put quotes, that's a quote. THE COURT: 6 7 It's what whoever wrote this 302 heard. It's not a statement of the witness. 4 5 Yes. allegedly heard. It's what that person heard or what he It's not a statement of this witness. 8 MR. EASTEPP: 9 THE COURT: All right. I'm not letting you impeach him like that, 10 like it's a sworn testimony because it's not. 11 impression of what it is. 12 It's the FBI's (Open court) 13 BY MR. EASTEPP 14 Q 15 phrase "do it" on the end of that statement? 16 A As far as I recall, I've always used it. 17 Q Do you understand there is a huge difference if the phrase 18 was only "F you," meaning, you know, get out of here, guys, 19 versus "F you, do it"? 20 dramatically. 21 A No. 22 Q Cops talk rough to each other fairly often, don't they? 23 A Sure. 24 Q So using that kind of phraseology, "F you, get out of here" 25 is not that -- you've heard that throughout your career, right? Mr. Vargas, have you ever used before today, added the The "do it" changes that phrase Do you agree with that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 289 of 344534 1 A Yes, several times. 2 Q So at that point in time, you set about to make these 3 believable reports. 4 stuff? 5 A I believe I finished them that day. 6 Q And you did what with them? 7 A I emailed them to the defendant. 8 Q Which is the way he got most MOAs, correct? 9 to Jody Warren or Gene Pedraza. How long did it take you to create this At least most of them. Well, they went All the agents emailed MOAs, 10 correct? 11 A Yes. 12 Q That was the most common way? 13 A Yes. 14 Q And you didn't get them back immediately, did you, the 15 edits? 16 A 17 after, but it was sometime after it. 18 day. I don't remember as far as -- immediately, no, not right MR. EASTEPP: 19 I believe it was the same I'll move on, but I'm going to need a 20 moment with those exhibits that are already in evidence, Your 21 Honor, but -MR. COONEY: 22 23 BY MR. EASTEPP 24 Q 25 around? Pardon me, Mr. Eastepp. When you finished drafting the MOAs, was Wayne Ball anywhere Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 290 of 344535 1 A I don't think he was. 2 Q Was Gene Pedraza anywhere around? 3 A No. 4 Q You did all that on your own? 5 A Yes. 6 Q Was Kris Healey there observing you do this work? 7 A He was in the conference room. 8 Q And were you talking to him as you were doing this? 9 A I believe I started writing those MOAs when Agent Ball was He was across from me. 10 in there. I started as soon as we came back from Subway's. 11 Agent Ball walked out, Agent Healey stayed in there, and I 12 kept -- continued to vent about the whole situation. 13 Q 14 y'all never thought, well, why don't we just walk down the hall 15 and ask Gene Pedraza what's going on here? And even after your venting with Kris Healey, the two of 16 MR. COONEY: Objection. 17 THE COURT: 18 THE WITNESS: Overruled. Not after Wayne Ball told us that. 19 BY MR. EASTEPP 20 Q Wayne Ball told you what? 21 A "Fuck you guys and just do it." 22 Q So now Wayne Ball is ordering you to do it? 23 A Well, he was -- I felt he was -- he was an out for us. 24 had the defendant's ear. 25 and ask or go and tell the defendant that, I sure wasn't going He And if he didn't have it in him to go Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 291 of 344536 1 to do it being on probation. 2 Q 3 prison option? 4 A It never crossed my mind, facing prison. 5 Q You've been a cop how long at this point, and you never 6 thought that if you're going to commit a crime that you could be 7 facing prison time? 8 A 9 since I was on probation, I had no other choice. Facing prison or being on probation, you chose the facing I knew at some point I was going to report it. I figured But as far as 10 facing prison, that never crossed my mind. I told you before, I 11 knew I was doing wrong. 12 Q 13 sum of that? 14 A That's the way I felt at that point. 15 Q Never thought to call anybody and go, "Let me run this by 16 you"? 17 A It did. 18 Q And who did you do? 19 A Wayne Ball. 20 Q He was in on the conference room discussion. 21 thought of calling a -- or using the whistle blower hotline on 22 your computer? 23 A I didn't know what to do. 24 Q Nancy Reagan said, "Just say no." 25 A I wasn't using drugs. So to save your job, you committed a felony. Is that the You never Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 292 of 344537 1 Q So after you create these reports, do you have any idea how 2 they got signed? 3 A No. 4 Q So after the edits came back to you -- and you sent the 5 reports where? 6 A To the defendant. 7 Q And you don't know how they got signed? 8 A I wasn't there when they were signed. 9 Q Let's look within Government's Exhibit 1C. Do you recall 10 the MOA about surveillance? 11 A Yes. 12 Q And you actually had done this surveillance? 13 A Yes. 14 Q But you never submitted a report to Gene Pedraza that said 15 that, correct? 16 A Correct. 17 Q So any information about a surveillance in the Manny Peña 18 file had never been shown to Gene Pedraza before, correct? 19 A No. 20 Q No, it had not is what you mean? 21 A Yes. 22 Q Now, on this, as you earlier testified, it's clear Edwin 23 Castillo signed this. 24 discussion? 25 A No. Was he in that conference room Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 293 of 344538 1 Q Do you have any idea how Edwin Castillo's name got on there? 2 A I would imagine once they were printed out, they were 3 trying -- 4 Q I'm asking you of your own knowledge, not a guess. 5 A You asked me if I had an idea. THE COURT: 6 You asked him if he had any idea. Do you 7 have any knowledge? 8 BY MR. EASTEPP 9 Q Do you have any knowledge? 10 A No. 11 Q No one ever came to you and said: 12 Edwin to sign this" or -- 13 A No, not that I recall. 14 Q And Edwin is not in the conference room with Gene Pedraza, 15 right? 16 A That's correct. 17 Q And this memorializes again this surveillance by Wayne Ball? 18 A Yes. 19 Q And there's a second one in that same exhibit about a TECS 20 check. 21 A Yes. 22 Q And this particular TECS check, the way this is written, it 23 doesn't describe a time period, correct? 24 A That's correct. 25 Q And again, this is signed by Edwin Castillo -- Hey, I'm going to get Yes, sir, that's correct. Do you see that? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 294 of 344539 1 A That's correct. 2 Q -- right? 3 whether there was a TECS check in that file or not, correct? 4 A That's correct. 5 Q Did you ever go to Edwin after you saw his signature and go: 6 Hey, Edwin, what's up?" 7 A No, sir. 8 Q There's a third one that memorializes this meeting. 9 meeting actually occurred, right? And again, Gene Pedraza would not have seen This 10 A Yes. 11 Q Meaning this is not a fraudulent or created false, whatever 12 term, MOA, is it? 13 A 14 me. 15 Q So you don't have a problem with this one, right? 16 A No. 17 Q All right. 18 right? 19 A That is not a memorandum that I was asked to falsify. 20 Q Yet it gets signed by the same Edwin Castillo, right? 21 A Correct. 22 Q And not Kris Healey? 23 A Correct. 24 Q Why didn't you just print it out and hand it to Kris Healey? 25 A Because I never saw the MOAs after I sent them to the I wrote that based off information that Agent Healey gave This is not part of your crime, as you say, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 295 of 344540 1 defendant. 2 Q 3 to go? 4 A Yes. 5 Q Why didn't you just print it and hand it to Kris and go, 6 "Kris, you need to sign this"? 7 A I don't remember why I didn't do that. 8 Q And then there's a fourth one that he signed. 9 not putting the same one back up. 10 They came back to you after the edits, didn't they? GTG, go Make sure I'm That's the one I showed earlier. But you have no idea how Edwin Castillo got involved, right? 11 12 A If you're asking me an idea, I'll give you an idea. 13 you're asking me knowledge -- 14 Q Do you have knowledge? 15 A No. 16 Q And you never had a conversation with him about that? 17 A No. 18 Q Now, after that, the next thing that occurs is you're 19 interviewed by Special Agent Izzard, right? 20 A Yes. 21 Q And that's for the inspection? 22 A Yes. 23 Q And was it a fair statement that most of the agents didn't 24 like Gene Pedraza going into this inspection interpersonally? 25 A I knew of some that did not like him. If I couldn't draw an Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 296 of 344541 1 opinion on the majority. 2 Q 3 what y'all were going to tell the inspectors about Gene Pedraza? 4 A Just Agent Healey. 5 Q And were y'all going to tell the inspectors that you had 6 thoughts about Gene Pedraza not being a good manager? 7 A 8 I expressed to him that I wasn't sure if this inspector was 9 going to be the right person to report this to. Did you participate in any discussions with agents about I don't know what Agent Healey was thinking, but I know that 10 Q But you didn't know anything about the inspection going in, 11 right, as you've testified earlier? 12 A What do you mean? 13 Q You've never been through one, right? 14 A Not for OIG. 15 Q So how could you make that judgment whether he's the right 16 one or not? 17 A 18 right person to report it to. 19 Q 20 interviewed by him in? 21 A In McAllen. 22 Q Just the two of y'all in the room? 23 A Yes. 24 Q Pretty nice guy? 25 A Yes. I didn't. That's what I said. I wasn't sure if he was the And so when you're sitting there -- where were you Brownsville or up there? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 297 of 344542 1 Q Pleasant conversation? 2 A Yes. 3 Q Professional conversation? 4 A It was informal. 5 Q He's being professional with you, correct? 6 A Yes. 7 Q He's telling you why he's there. 8 "I'm here with the inspection team. 9 about," right? It was. He had to do some intro. I want to talk to you 10 A Yes. 11 Q So it's clear before you started talking to him, you knew 12 why you were talking to him and who he was? 13 A Yes. 14 Q So at that moment, it didn't come on in your mind that this 15 is the guy that you need to talk to? 16 A 17 it did, but for some reason I felt it wasn't. 18 Q 19 brass tacks, what you would have to admit is that you falsified 20 reports. 21 A I did falsify the reports. 22 Q Right. 23 to, correct? 24 A That's what I did admit to. 25 Q But in that first discussion with Izzard, you never told him Well, I don't remember if it did or if it didn't. I'm sure Because what you had -- you know, when we get down to the That's what you were afraid to say, right? And that's the thing you're going to have to admit Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 298 of 344543 1 this, did you? 2 A No. 3 Q So again, you would have had to admit to it, but you chose 4 not to tell him. 5 A 6 point in there, I'm sure I did or I didn't. 7 ended abruptly. 8 correct word. 9 And it got to a point after that conversation with him, I'm 10 The conversation went in all different directions. like: And I shouldn't say that. At some But the interview Maybe that's not the But it got late, and we finished pretty quickly. I didn't tell him. He didn't ask me. And that was it. Now, whether or not it crossed my mind during the interview, 11 12 I don't even remember. He was asking me things that were 13 completely unrelated to the inspection. 14 pleasant interview. 15 of work I did, where I was stationed. 16 kinds of questions. 17 Q 18 right? 19 A No, we weren't co-workers. 20 Q He's a special agent with the Department of Homeland 21 Security-Office of Inspector General just like you. 22 A 23 that point. 24 Q Did you ask him? 25 A Even if I did, I probably still wouldn't have understood. Like I said, it was a He was asking me about my family, what kind He was asking me all Well, there's nothing inappropriate about those questions, Y'all are co-workers. Sure, but I didn't understand the structure of the OIG at I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 299 of 344544 1 hadn't met everyone in our agency. 2 field work. 3 Q I was trying to learn the Let me move on, Mr. Vargas. Now, in that conversation with him, it had been how many 4 5 days until you sat down in front of Izzard from the creation of 6 those MOAs? 7 A 16, I guess. 8 Q It would seem to me a veteran law enforcement officer who 9 has committed a crime would have been tired, couldn't have I believe it was 16 days, 15 or 16 days. 10 slept, worried, wanted to get it off his chest after 16 days. 11 Am I wrong? 12 A I gave it a lot of thought. 13 Q But it sounds like the way you described it, you had just a 14 pleasant conversation with Izzard. 15 A I did. 16 Q And never once brought it up. 17 A No. 18 Q It's only afterwards after somebody tells him to ask you? 19 A I don't have any information regarding that. 20 Q To this day, you don't know how that happened? 21 A No, to this day. 22 Q But somebody -- 23 A I don't know. 24 Q Somebody clearly had to tell him because he calls and asks 25 you, right? I was bothered by it, yes. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 300 of 344545 1 A He told me that he didn't finish asking me the questions, 2 and that's when he continued to ask me. 3 Q 4 up and told him? 5 A That same evening when he called me on my cell phone. 6 Q And was that this continuation? 7 A Yes. 8 Q So don't you think he called you back to ask you about that, 9 not to ask you how your kids are doing? Okay. And when did this issue finally -- that you puked it 10 A Yes. 11 Q That's my question. 12 A You asked me if I knew if someone else had told him. 13 don't know. 14 someone did, but I don't know who it was. 15 Q 16 the first time you tell somebody about these events? 17 A Other than Agent Healey, yes. 18 Q Agent Healey had not arrested you, had he? 19 A Excuse me? 20 Q Agent Healey had not arrested you, had he? 21 a crime to a special agent. 22 A No. 23 Q Did you ever have that discussion with him? 24 A No. 25 Q Was he covering up for you? To this day, I don't know. I Obviously, yeah, When you -- when Mr. Izzard calls you that evening, that's You've admitted Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 301 of 344546 1 MR. COONEY: 2 THE COURT: Objection. Sustained. 3 BY MR. EASTEPP 4 Q 5 what were your words? 6 A 7 do something that was illegal; in particular, fabricate, make up 8 MOAs, something to that effect. 9 Q And where did the conversation go from there? 10 A He asked me to explain. 11 Q Did you do that? 12 A Yes, I did. 13 Q And did you have any ulterior motive on top of all this? 14 A What do you mean? 15 Q A game plan. 16 Pedraza fired. 17 A 18 had to report it to someone at some point. 19 tell him that night? 20 a motive to get Agent Pedraza fired? 21 right thing. 22 Q 23 bet about whether he's going to be fired or not, right? 24 A 25 discussion. Now, when you tell Special Agent Izzard, what did you -- He asked me if I had ever been -- if I had ever been told to I told him yes, I had. If you tell Izzard, maybe you can get Gene I told Izzard because I knew it was wrong, what I did, and I Why I decided to Maybe because he asked me. But as far as I just wanted to do the I mean, there was a point in time you and Kris Healey made a I don't recall making a bet, but I recall having the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 302 of 344547 1 Q One of those not that somebody each exchanged money, but you 2 go: 3 and Kris Healey had that, talked about that? 4 A 5 to happen to him. 6 Q And part of it was around a bet. 7 A No, I don't recall having a bet with him. 8 discuss what was going to happen to him. 9 Q And you don't remember the bet being -- 10 A I do not recall a bet. 11 Q -- in relation to when the Frost meeting occurred? 12 A No. 13 Q You don't remember? 14 A No one knew what was going to happen that day. 15 Q My question was about this bet thing. 16 you tell Izzard, it's the next day that you're drafting this 17 memo to him, correct? 18 A Yes, sir. 19 Q And that's when you get the calls from Gene Pedraza about 20 your working files, correct? 21 A That's correct. 22 Q And up to that point in time, he's never seen those working 23 files, has he? 24 A That's correct. 25 Q So he asks that they be brought to him immediately, correct? I bet he's going to get fired about all this, correct? You We had plenty of discussions about what we thought was going Yes or no? But we did Mr. Vargas, so after Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 303 of 344548 1 A Yes. 2 Q Inspectors are still there, right? 3 A Yes. 4 Q And you knew the inspection was timed, meaning they're not 5 going to be there for weeks and weeks. 6 process, correct? 7 A I was under that understanding, yes. 8 Q Right. 9 right? It was a couple of day And they're going to be flying back to Washington, 10 A At some point, yes. I didn't know if it was that day. 11 Q Right. 12 A Yes. 13 what I understood. 14 morning. 15 Q 16 files needed to be gotten to McAllen where inspectors can see 17 them, that needed to be done quickly because they're going to be 18 leaving town. 19 A Sure. 20 Q Makes sense? 21 files up to McAllen, that shouldn't have been of any concern to 22 you, right? 23 A It -- it wasn't. 24 Q But you refused to go? 25 A I never refused to go. But fairly soon. You understood again -- It was going to be for a week, the inspection, from Right. I didn't know if they were flying back that But time is kind of the essence here, right? If So when Gene Pedraza asked you to get the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 304 of 344549 1 Q You just said you didn't have time or what? How would you 2 call that? 3 A 4 statement. 5 Q And -- 6 A As soon as I finished that, I was going to take it to the 7 defendant. 8 Q And Izzard gave you a direct order? 9 A Twice. I was under direct orders by Inspector Izzard to finish my That's what I was doing. He told me that evening, and he called me the 10 following morning. "Don't forget. I need you to write that 11 statement." 12 Q "I am ordering you to write the statement"? 13 A Again, I'm a GS-9. 14 he is, I'm subordinate to him. 15 I take it as an order. 16 Q 17 word order. 18 A 19 I'm going to do it. 20 Q But you're refusing at that moment to bring the files. 21 A I never refused to take him the files. 22 me where I was. 23 they need the files. 24 soon as I can. 25 files." You got a GS-13, 14 inspector. Whatever If they tell me to do something, So that's another time you form this impression and use the That's the way I interpret it. He told me to do something; I told -- he asked I told him I was in Brownsville. I told him okay. He told me I'll get them to you as I never told him, "I'm not taking you the Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 305 of 344550 1 Q You trust J.R. Flores, don't you? 2 A I do. 3 Q So there's nothing wrong with J.R. Flores coming and picking 4 them up, right? 5 A There's nothing wrong with that. 6 Q And again, nothing wrong with Gene Pedraza wanting to see 7 the files to see what's in there because he's never seen them, 8 right? MR. COONEY: 9 THE COURT: 10 Objection: Assuming facts not in evidence. Sustained. 11 BY MR. EASTEPP 12 Q You got those files back, correct? 13 A Yes, sir. 14 Q And everything was in them, correct? 15 A Yes, sir. 16 Q There wasn't any notes missing, any TECS checks removed, 17 anything like that. 18 A No, sir. 19 Q No draft MOAs removed, nothing. 20 A Not that I recall, no, sir. 21 Q Came back to you exactly as they went to McAllen. 22 A As I recall, yes, sir. 23 Q What happened after you write these statements to Special 24 Agent Izzard? 25 A After I email him the attachments and everything else, Agent Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 306 of 344551 1 Healey and I, we jump in his truck and we head to Mercedes to 2 meet J.R. 3 Q 4 the memorandum to Izzard. 5 A I emailed them to him. 6 Q And did you -- did he call you on the phone? 7 discussion about any of that? 8 A 9 things. I've already covered that. I'm trying to move on to getting How did you do that? Was there any He called me back and asked for some clarification on some At that point I was already on the road to drop off 10 the -- or to meet J.R., and I sent him a clarification. 11 Q "Him" being Izzard? 12 A Yes, sir. 13 were already on the road at that point. 14 Q 15 that? 16 A 17 received that and said thank you. 18 Q 19 called you, right? 20 A I received an email from someone at headquarters, yes. 21 Q Who wanted to talk to you? 22 A Yes. 23 Q And you had a conversation with that person. 24 A I did. 25 Q Who was that person? I sent him a clarification on my Blackberry. We And was that the last conversation you had with Izzard about I believe so. I think he called me or texted me after he That's it. At a short period of time after that, your headquarters Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 307 of 344552 MR. COONEY: 1 2 Objection. (At the bench) MR. COONEY: 3 4 we're going here. 5 with John Ryan. I'm objecting because I'm not sure where It sounds like we're going into conversations 6 MR. EASTEPP: 7 THE COURT: 8 MR. EASTEPP: 9 Wait, wait. THE COURT: I still have all those emails that we have for the day. MR. EASTEPP: 13 THE COURT: 15 How much more do you have? Well, I'm just wondering if I should break 12 14 Right. to talk about. 10 11 May we approach? I'm about worn out. They're also doing construction on our roof apparently, unbeknownst to me. (Open court) THE COURT: 16 Ladies and gentlemen, let's go ahead and 17 break for the evening. 18 Don't talk about the case with anyone. 19 Don't do any emailing, don't do any research on the Internet, 20 nothing like that. 21 morning at about 8:20 so we can start at 8:30. 22 25 Follow them. Don't look anything up. We'll see you -- please be here tomorrow Thank you. (Jury leaves courtroom) THE COURT: 23 24 Remember my instructions. Agent, if you'll stay here for just a minute. All right. Let's cover a couple issues before we break for Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 308 of 344553 1 the day. 2 he's -- discussions he had with Mr. Ryan, one, even admissible; 3 but two, relevant? MR. COONEY: 4 5 Let's go to the -- Mr. Eastepp, why is anything that out while we have this conversation? 6 THE COURT: 7 questions about -- 10 Well, I was worried we may have to ask him MR. COONEY: 8 9 Your Honor, may I suggest the witness step Which may very well be. of course I defer to the Court. I just -- the -- I just want to make sure we can have an open conversation about testimony. THE COURT: 11 Mr. Vargas, why don't you step out, but stay 12 right in that area right outside the courtroom there where 13 the -- have y'all staked out conference rooms? 14 MR. COONEY: 15 THE COURT: 16 Yes. Why don't you put him in your conference room, Mr. Cooney. MR. COONEY: 17 18 Yes. I think he knows exactly where it is. (Witness leaves.) MR. EASTEPP: 19 The relevance would be, Judge, that 20 Mr. Ryan at the time was a deputy associate inspector who called 21 and asked him direct questions, did he do this, and he denies 22 it. 23 THE COURT: 24 MR. EASTEPP: 25 it? Did he do what? Did he falsify records? He denied all of that. Did he mean to do That's in that Ryan report. His Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 309 of 344554 1 direct answers back were lies to his supervisor about it. MR. COONEY: 2 That's a misstatement of what Agent 3 Vargas -- Mr. Vargas told John Ryan. 4 happened, and John Ryan pushed on him. 5 THE COURT: 6 MR. EASTEPP: 7 THE COURT: 8 MR. EASTEPP: 9 THE COURT: 10 He told John Ryan what What exhibit is that, Mr. Eastepp? It's 18, Your Honor. That's what I'm looking for here. One that you ruled on. Okay. I have it in front of me. What are you going to ask him? 11 MR. EASTEPP: 12 THE COURT: 13 MR. EASTEPP: Pulling my copy out now. Okay. It partly comes from here, and he's 14 testified to these facts too about the conversation with -- 15 with -THE COURT: 16 Well, here's -- let me see if I can shortcut 17 this. Let's assume for a minute that somewhere in Mr. Ryan's 18 report -- and I -- if you need to look at it, Mr. Eastepp, 19 you're welcome to my copy. 20 MR. EASTEPP: 21 THE COURT: I've got it here. Let's assume in there he says that Agent 22 Vargas told me this never happened. So you ask him, "Agent 23 Vargas, did you ever tell Mr. Ryan this never happened?" 24 says either yes or no. 25 If he says no, then what? And he If he says yes, you've made your point. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 310 of 344555 1 MR. EASTEPP: 2 THE COURT: 3 MR. EASTEPP: 4 THE COURT: Clearly -- Clearly what? That's the point. I mean -- The whole report -- I mean, I'll let you ask him that question 5 with regard to anybody. 6 manager or whatever that he -- that none of this was true, I 7 mean, but -MR. COONEY: 8 9 10 I mean, has he ever told me or the case This is kind of the basis of our objection, is that what we want to make clear is how would the impeachment, if there is impeachment, be proved up? 11 THE COURT: Well, it can't be. 12 MR. EASTEPP: That's the problem. It can be without admitting the whole 13 report. If you're talking about there's one sentence or 14 something where it says, you know, "I asked him and he denied 15 it" -THE COURT: 16 There's not -- that's not a sworn testi -- 17 how are you going to impeach him with something somebody may 18 have made up? MR. COONEY: 19 20 report. 22 The report does not say that. THE COURT: 21 It's also -- to be clear, it's not in the Well, I was looking at it. I couldn't find it. 23 MR. EASTEPP: 24 THE COURT: 25 MR. EASTEPP: And he's testified to these facts too. Who's testified to it? Vargas has. It's in his grand jury. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 311 of 344556 1 2 3 4 5 THE COURT: He's testified that he told Ryan that he made the whole thing up? MR. EASTEPP: That he got the call and that he didn't answer the questions truthfully. MR. COONEY: He testified -- I think that's a little 6 misleading. 7 John Ryan. 8 who Ryan was. 9 but he felt like he was being pushed back on by a senior 10 11 He testified that he received a phone call from He was asked some direct questions. He didn't know He did acknowledge that he had made the report, official in Washington. And my concern about going into this inquiry with him just 12 relates to how would any impeachment be proved up? 13 is -- it's essentially asking him about his out-of-court 14 statements when there is no -- when the Ryan report doesn't come 15 in to impeach him, there's no witness available to impeach him, 16 and I don't think it's impeachment. 17 statement and an inconsistent statement. 18 THE COURT: 19 MR. COONEY: 20 21 I mean, it There is a consistent Say that again. I guess -- I suppose you can say that there's a consistent statement. THE COURT: I guess one of my problems is no one can 22 show me a statement. 23 don't have -- Mr. Eastepp, I'll let you ask him, "Didn't you 24 tell Mr. Ryan X?" 25 I mean, that's the problem. I mean, I But if he says no, that's it. MR. EASTEPP: Here, let me -- in his grand jury Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 312 of 344557 1 testimony, page 126, line 6. 2 hears Ryan. 3 ever ask you to lie? 4 MOAs?" This is Vargas' testimony that he He said, quote, with regard to these MOAs, did Gene Did he say, "I need you to lie on the 5 I told him no. 6 Did he ever use the word fabricate? 7 I said no. 8 So what did he ask you to do? 9 And I told him what I've told you guys, meaning DOJ, that he 10 wanted to fill that dormant spot with investigative activity 11 that's traditionally done. 12 THE COURT: 13 14 15 16 17 18 19 20 Why is that impeachment? That's exactly what he's testified here today to. MR. EASTEPP: No, he's completely backing off from that statement and watering it down and going, "All Gene said was" -THE COURT: He said he -- did anyone ask him to -- anyone -- let me back up. Did Mr. Pedraza, you know, use the word lie, use the word fabricate? I mean, you've got him saying all that. MR. EASTEPP: But this is to a supervisory official in 21 his own agency. 22 soul and tell people, when he's given an opportunity from 23 somebody -- 24 25 All this theory that he's going to cleanse his THE COURT: Well, he just said the same thing under oath, though, didn't he? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 313 of 344558 1 2 3 4 MR. EASTEPP: But he's not talked about it at the level of somebody at Mr. Ryan's level, Judge. THE COURT: I mean, it's not impeachment. can't figure out. 5 MR. EASTEPP: 6 THE COURT: Judge, I'm -- I mean, you're asking him about consistent 7 statements. 8 testified to all afternoon. 9 What you just read to me is exactly what he just MR. EASTEPP: But he never says in here that, "Well, I 10 told Mr. Ryan I was ordered to do this." 11 says, "No, he didn't tell me to do anything wrong. 12 to do traditional" -- 13 That's what I THE COURT: He soft pedals it and Where do you see that? He told me I mean, if you show 14 me a statement he did not interpret that as being an order, then 15 I might -- you might get me on this. 16 Mr. Ryan tell you to lie? 17 that is no. 18 fabricate? 19 But otherwise, did He's already testified the answer to I mean Mr. Pedraza. Did Mr. Pedraza use the word No. MR. EASTEPP: Judge, just for the record, I want to 20 point out, this is an immunized witness who has the most crucial 21 things to say against my client, and there are strong 5th and 22 6th Amendment implications here. 23 THE COURT: If you're cutting me off -- I'm not cutting you off. I'm just -- we're 24 talking about you're trying to impeach him using consistent 25 grand jury testimony, and I've never heard of that. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 314 of 344559 MR. EASTEPP: 1 It's -- it's not consistent, because 2 remember, this is going back talking about the conversation 3 itself. 4 THE COURT: Well, and so is that. 5 MR. EASTEPP: 6 THE COURT: What you just read me is about the 7 conversation itself. 8 MR. EASTEPP: 9 THE COURT: 10 11 12 13 14 Right. Right, right. So I'm trying to figure out how it comes in. MR. EASTEPP: That when a direct supervisor asked him the question -THE COURT: question again? "Did he use the word lie?" "Did he ask you to lie?" MR. EASTEPP: I mean, read the He said no. "What did he ask you to do?" 15 "And I told you what I've told you guys, that he wanted us 16 to fill in the dormant spot with investigative activity that's 17 traditionally done." 18 to make up stuff." 19 real thing, just do traditional things." 20 how it can be interpreted differently. 21 MR. COONEY: 22 THE COURT: 23 24 25 That last part is not this "I was ordered That's, "Hey, we were just being told the I don't see how you -- Well -I don't see how you can interpret that as impeachment. MR. EASTEPP: Well, again, this is going back to asking him about the conversation itself. "Did you have a conversation Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 315 of 344560 1 with your supervisor? 2 them these things you told Izzard?" 3 THE COURT: 4 MR. EASTEPP: 5 Did you -- in Washington? Did you tell And he says yes. Well, he's going to say no. That's what he says in here, that he didn't. THE COURT: 6 Where does he say no? I don't understand 7 where -- I mean, show me where -- what's contradictory, and you 8 may have me. MR. EASTEPP: 9 This goes on for several pages. Because 10 he goes on and he starts asking particular questions about Wayne 11 Ball. 12 asked him did he ever -- did you ever ask Wayne did he do these 13 checks?" 14 15 16 You know, he asks -- this is on page 127. He says, "Ryan And Vargas says, "I tell him no." "So is it safe to say it's possible he conducted these checks?" And his answer is on line 18 finally. It's, "Yeah, it's 17 possible, but I don't -- I'm pretty certain that he didn't. 18 know, I'm trying to tell him, and he interrupted me." 19 THE COURT: You Well, if you can show me how he made an 20 inconsistent statement, I'll consider it. 21 you've asked him on the stand today, "Did Mr. Pedraza use the 22 word lie?" 23 mean, you went through four or five questions on this, and he's 24 answered no to all of them, just like he answered no to what you 25 just read me. And he said no. But so far, I mean, "Did he use the word fabricate?" I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 316 of 344561 MR. EASTEPP: 1 And the Court is not factoring in this -- 2 in its analysis this issue that he's talking to a direct 3 supervisor. THE COURT: 4 5 6 Well, you can ask him that. "Did you talk to a supervisor after this from Washington?" "Yes, I did." 7 MR. EASTEPP: 8 THE COURT: 9 You can say, day. That's where the objection came in. Well, I know. But, I mean, I broke for the I didn't rule on the objection. 10 MR. EASTEPP: 11 THE COURT: No, no, I understand. All right. I understand. Then the -- but what I'm 12 concerned about, and I think what Mr. Cooney is concerned about 13 is what happens when you get an answer you don't like? MR. EASTEPP: 14 15 THE COURT: 17 MR. EASTEPP: 18 THE COURT: Well, with the report. refresh your memory?" MR. EASTEPP: 21 THE COURT: Right. If he says no, but it's not coming into evidence. 23 MR. EASTEPP: 24 THE COURT: 25 As you know -- Well, I mean, you can say, "Does this 20 22 I can refresh his memory with the Ryan report. 16 19 And -- I'm not -- Here's the deal. Ask him those questions. "Did you tell the guy from Washington that Mr. Pedraza told you Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 317 of 344562 1 to lie?" 2 never used the word lie. 3 here is I'm not seeing any -- if you can -- you know, I've let 4 you impeach him with grand jury testimony. 5 again, but it's got to be impeachment. 6 where he said something at a prior inconsistent statement than 7 what he just said. 8 Mr. Cooney. 9 10 11 12 He's going to say no. MR. COONEY: THE COURT: He's already said no, he's I mean, I guess what I'm -- my problem I'll let you do that Impeachment is something I mean, is there -- let me ask this, Yes. Is there any -- does the government have objection with him asking, "Didn't you tell Mr. Ryan X?" MR. COONEY: No, insofar as this. If the purpose is 13 to -- look, I think Your Honor is correct. 14 object to trying to impeach him with an inconsistent statement, 15 but I think the questions need to be very directed because -- 16 I'll be very transparent about my objection. 17 18 19 I don't think we can One, just like I said, I don't think there is an inconsistent statement, so there's nothing to prove up. And so two, we object to essentially pidgeon holing the Ryan 20 report and these other issues, which Your Honor has already 21 ruled are not coming in at this trial into two or three kind of 22 misleading questions of the witness. 23 And so I actually -- to be clear, I came in with my 24 objection. He had begun to lay the foundation. 25 conversation with a high ranking DHS official?" "Did you have a Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 318 of 344563 1 "Yes, I did." 2 "Did he ask you questions about this?" 3 "Yes, I did." 4 And so I think right now we've got a record that's clean. And that's where I came in. 5 But my issue is what's the next question, and then where do we 6 go based on the answer? THE COURT: 7 8 next question. Okay. It's the question or two after that. MR. COONEY: 9 Well, I'm going to let you ask the And my concern is I'm just not sure I 10 also -- I mean, I do have another objection, which is I'm just 11 not sure what the basis is, giving -- like Your Honor has 12 pointed out, there is not a record of inconsistency on this. 13 where is the good faith basis to start probing about 14 conversations with John Ryan? THE COURT: 15 Well, we'll just have to take it on a 16 question-by-question basis. 17 inconsistency there. 18 But I'm not seeing any Now, if you ask him, "Did you tell Mr. Ryan that Mr. Pedraza 19 told me to lie," and he says yes, then I do see. 20 that out and beat him over the head with it, because then it 21 will be inconsistent to what he testified here. 22 we're just going to have to take it on a question-by-question 23 basis. 24 25 So All right. Let's go to other topics. about the video? You can whip But let's -- Do we want to talk Do we have Mr. Green here? Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 319 of 344564 1 MR. COONEY: Let me check right now. I think -- I'm 2 relatively confident that he is still here. 3 proffer as well. I'm happy to put him on the stand and ask him 4 a few questions. I can make a brief proffer as to what I 5 anticipate his testimony to be and kind of what our state of the 6 evidence is with respect to this. 7 THE COURT: 8 MR. COONEY: 9 THE COURT: 10 11 And I can make a Maybe -- do we also have the video here? We do. We do. Can we show me the video while we're waiting for Mr. Green? MR. COONEY: Certainly. There are only about three 12 minutes of the video. 13 There are only, Your Honor, about three minutes worth of video 14 that we're wanting to play. 15 THE COURT: 16 MR. EASTEPP: 17 THE COURT: 18 MARSHAL: 19 THE COURT: 20 Abel, ask Agent Green to come in. I'd like next about the emails. I'm -- I have not forgotten. Your Honor, where would you like him to stand? Come up here, agent, and take the witness stand again in case we need you. 21 THE WITNESS: 22 MR. COONEY: 23 And Agent Green is here if we need him. Yes, sir. Your Honor, could I just have one minute just to confer here? 24 THE COURT: Agent, you're still under oath. 25 THE WITNESS: Yes, Your Honor. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 320 of 344565 1 THE COURT: 2 THE WITNESS: 3 MR. COONEY: 4 THE COURT: 5 MR. COONEY: 10 11 Okay. I just think it's going to be easier for me Of course. Am I inquiring of the witness, or are we playing the video first? THE COURT: 8 9 Yes, Your Honor. to rule if I've seen it. 6 7 Go ahead and be seated. Right now I want to see the video so we have reference as to what is wrong or not wrong about it. I have a clue. MR. COONEY: All right. We're publishing this now, Your 12 Honor, and we're going to -- we'll try and play at a -- why 13 don't we before we play it -- so I'll just describe -- may I 14 describe what -- 15 THE COURT: 16 MR. COONEY: Yes, go ahead. So camera 2 is a hallway. That's in the 17 upper right-hand corner, and that's a picture of Ms. Hinojosa 18 with some case files. 19 little bit faster speed, and we'll stop it at a few places just 20 so we can flip it through for you. 21 let us know and we can stop. 22 And we're going to try and play it at a If it goes too fast, please And if you look at the time stamp down in the corner, the 23 bottom left-hand side corner, so here she's walking down the 24 hallway again. 25 THE COURT: The time stamp that says 1/25/2012, Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 321 of 344566 1 12:51 a.m.? MR. COONEY: 2 And so then -- so what's happening is in 3 terms of just setting the scene, the direction that Ms. Hinojosa 4 walked with those case files is in the direction from the 5 defendant's office, which is at the bottom of the hall or the 6 top of the hallway on the picture there in the direction of the 7 conference room. 8 actually can't remember if she enters it right this moment or 9 not. And that door on the right-hand side, I But that door depicted on the right-hand side is the door 10 to the case file room. 11 diagonally from it is the defendant's office. 12 13 14 15 And the door on the left-hand side Go ahead. THE COURT: Okay. Where is she? Where did she just disappear into? MR. COONEY: And to be honest with you, I think -- I 16 can't say if she disappeared into the defendant's office or if 17 she disappeared around the corner. 18 knowledge of the office would have to testify to that. 19 More case files. 20 THE COURT: 21 disappears off the screen? 22 23 24 25 I think somebody with more MR. COONEY: And what is she walking toward when she The conference room. And now you can see -- oh, it didn't come up. Okay. So right here at this moment, you can see the -- before you hit start, the bottom right-hand corner is the camera Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 322 of 344567 1 to the case file room, and there's already been testimony about 2 they're motion activated, so you don't see anything unless 3 they're motion activated. 4 about to walk into the case file room and now the defendant 5 following her down the hallway. So you can see here Ms. Hinojosa And you can see that -- 6 Yeah, slow that down. 7 You can see on the bottom she walks in, and you actually see 8 the defendant catches the door and comes in. MR. EASTEPP: 9 10 MR. COONEY: 11 MR. EASTEPP: 12 MR. COONEY: 13 MR. KIDD: 14 MR. EASTEPP: 15 MR. COONEY: 16 See what happens. What's the end of that? I'm sorry? The end of that? 5307. You mean what happens in the video? Correct. Oh, what happens in the video? I'm sorry. So what's going to happen next is that both the defendant 17 and Ms. Hinojosa will walk out of that room with case files. 18 And if memory serves correctly, you'll see them walking down the 19 hallway towards the conference room. 20 So that's at 1053, 50 or 51. And, you know, present time 21 it's our intent to play this clip. And the purpose of playing 22 this clip is to rebut inferences in cross-examination that were 23 made of Agent Green concerning key card access, the existence of 24 video, what we'll be able to see if we had a video, things like 25 that. We don't intend to play hours and hours of tape, but we Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 323 of 344568 1 do intend to play this particular tape to rebut the inferences 2 that were made. THE COURT: 3 4 Okay. What's the problem with it, Mr. Eastepp? MR. EASTEPP: 5 We've had it for months in discovery and 6 have looked at it all. It's the date stamp is off. That's very 7 clear because on a bunch of these, you see what would appear if 8 somebody -- a normal workday starting at 3:00 in the morning or 9 4:00 in the morning or some hour that's very clear. And if the 10 time stamp is off, how do we not know the date stamp is not off 11 too? 12 And it's crucial because of what's in the indictment as to 13 the date. 14 moving pictures like this are admissible in court. 15 It's not admissibility. THE COURT: Tell me what the date stamp is. 16 it says earliest and latest? 17 MR. STARNES: it, the date stamp disappears. 19 date and time. 20 THE COURT: 21 MR. STARNES: 22 the telescreen here. MR. COONEY: 24 THE COURT: 25 is not 10:53 a.m.? Is it where Unfortunately, Your Honor, when you pause 18 23 I understand that just But you can see down there the Wait, wait, wait. I'm sorry. Down where? I'm pointing, but I don't have Bottom left-hand corner, Your Honor. Show me. And so why do we -- we think this Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 324 of 344569 MR. EASTEPP: 1 I think everybody agrees, having seen 2 hours and hours of this, that it's -- that you see too many 3 where, again, people are in there on what is a normal workday at 4 4:00 in the morning on the time stamp that clearly it's not. 5 the issue becomes if the time stamp is off, if the agency hasn't 6 reset it, how do we know the date stamp is wrong or right? 7 That's my only issue. It's this technical thing about the 8 time and the day. 9 office are admissible or not. 10 So It's not whether pictures of my client in the I don't contest that as a general legal proposition. MR. COONEY: 11 There is two things to make clear as to why 12 there's some con -- why there's confusion about the date stamp 13 is because there is a lot of video. 14 fair, that shows, you know, odd hours that we are confident are 15 not the correct hours of this kind of activity. 16 And there is video, to be But we don't have any reason to believe that the date stamp 17 itself is incorrect based on the activity we're seeing which are 18 corroborated by Defense Exhibit No. 9 with the key card entries 19 showing several entries by Ms. Hinojosa on this particular date, 20 as well as Government's Exhibit 20A and 20B, which are emails 21 from the defendant to Ms. Hinojosa on January 25th, 2012, 22 attaching copies of the list of cases to be inspected, 23 indicating that or implying that he wanted to obtain those case 24 files. 25 And so, you know, look, we can't, I think at this particular Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 325 of 344570 1 time, necessarily prove up the exact time in the videotape. 2 However, I do think that the video is admissible to come in -- I 3 mean, it's a matter of weight as opposed to admissibility. 4 And part of the purpose here is the cross-examination of 5 Agent Green concerning, well, key cards are going to show when 6 my client went in, when my client went out. 7 we have video showing him following in Ms. Hinojosa. 8 be very odd to be doing all these things in a place in which 9 there is cameras everywhere. In fact, right here It would And there was a lot of testimony 10 about that video which was elicited on cross-examination placing 11 it in issue. 12 talking about. 13 So let's just show the jury the video we're MR. EASTEPP: I'm looking at the card key. She was in 14 there every day that week. 15 she's in there all the time. 16 And again, it's because the indictment in Count 12 says 17 January 25th until the morning he was placed on leave. 18 THE COURT: That's already in evidence. I mean, She's in there the day before. When we just looked at the date and time, is 19 it the government's contention -- and I don't mean necessarily 20 in front of the jury; but, I mean, do you all think that time is 21 right then? 22 MR. COONEY: 23 THE COURT: 24 25 On this particular? What you just showed me. Do you think it's 10:53 a.m.? MR. COONEY: That exact time, no. The date, yes. I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 326 of 344571 1 think we may have a little bit more information about this, Your 2 Honor, to explain why we're confident on the date. 3 just one moment? 4 Can I have Your Honor, would you permit Mr. Starnes to explain this? 5 He has been researching this all day for the government. 6 explained it to Mr. Kidd and I. 7 accuracy. 8 THE COURT: 9 MR. STARNES: He's We're confident in the Go ahead. So to be brief, Your Honor, we have -- we 10 have multiple videos from that day including this one which is 11 labeled, you can see up there, 80. 12 DVR201280, and it's sequentially followed by -- follows 79 and 13 78, which are -- which are earlier portions of that day. 14 Mr. Eastepp has said, it shows at some point in time 5:00 15 something in the morning that these things are happening. 16 There we go. It's And as Well, between 5:18 and 5:26 on the video, there are three 17 times that Ms. Hinojosa goes into the -- into the file room, and 18 those correspond directly to times on the log. 19 between those times are, I mean, as near as you can be without a 20 stopwatch from Seiko. 21 The intervals Additionally on the second video, 79, there are intervals 22 that correspond directly to the times in which she logs in 23 through the access cards as displayed on Defendant's No. 9. 24 25 THE COURT: So if we play the video for eight hours, if I sit here and watch eight more hours -- Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 327 of 344572 MR. STARNES: 1 2 five-and-a-half Your Honor. THE COURT: 3 4 You'd really only need about I mean, what happens? What's the date and time eight hours from now if I watch this all the way through? MR. STARNES: 5 No, it's about 5:00 a.m. to about 10:00 6 something a.m. that these -- that the events occur on here. 7 it's the 25th here, and it's also the 25th in real life. MR. COONEY: 8 9 So That eight hour period starts at fourish in the morning? 10 MR. STARNES: 11 MR. COONEY: 12 THE COURT: 13 MR. COONEY: Yeah. And then would extend to noonish. Okay. That's what I meant. Right. So it's not going to -- it's not 14 going to post midnight, right? 15 midnight. 16 THE COURT: 17 MR. COONEY: 18 THE COURT: It's not on either side of Why are we -And -Let's go back to why you think it's the 19 25th. 20 23rd or 26th and 27th, or is it merely because when she walks in 21 and out that door several times, they match up with the code 22 entrance? MR. COONEY: 23 24 25 Is there any -- do we have tapes from like the 24th and 25th? And, I'm sorry. Why we think it's the Why do we think this video is the 25th? THE COURT: Yeah, as opposed to the 26th or 27th. I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 328 of 344573 1 mean, that's Mr. Eastepp's -- 2 MR. COONEY: 3 January 25th, 2012. 4 that continue on the 25th as opposed to another date. 5 objective records corroborating that Ms. Hinojosa did go in on 6 those -- on that date. 7 intervals between her entries on the 25th on the objective 8 records are equal to the intervals between as shown on the tape, 9 just that they reflect different times. THE COURT: 10 11 There are And as Mr. Starnes explained, the To give a -- But how do we know -- let's say that all -- We do have video from other days, Your Honor. THE COURT: 15 MR. COONEY: And are those dates correctly reflected? To our knowledge, exactly the same as they are here, 25th, 26th. THE COURT: 17 18 The events all occur within eight hours MR. STARNES: 14 16 Because it says -- because it says do we have video from the 24th and the 26th? 12 13 Right. Do all these dates, to your knowledge, have this same time problem? MR. COONEY: 19 To our knowledge, with respect to the ones 20 we have reviewed, but what I'm not sure I can make a 21 representation about is how wide a span we reviewed, "we" being 22 the government, meaning FBI obtained these and was looking 23 certainly for specific days. 24 have any reason to believe that there are discrepancies between 25 dates. But within that review, we don't Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 329 of 344574 1 THE COURT: I mean, do the time -- does the recording 2 always start at 8:00 a.m.? 3 noon? 4 MR. COONEY: 5 THE COURT: 6 MR. COONEY: 7 THE COURT: 8 MR. COONEY: 9 I'm sorry, like 4:00 a.m. and end at Yes. How is this video kept? That's what Agent Green is here for. If you know, just tell me. Certainly. So my understanding is that there is a DVR machine kind of in the -- within OIG, and it's 10 like stored there. 11 month period. 12 regular maintenance of it and whatnot. 13 And it rolls over itself after a several And it just goes automatically. There's no The -- in this particular instance when the FBI requested 14 it, which was sometime in the spring of 2012, I anticipate we'd 15 hear Agent Green testify that: 16 I know it's kept. 17 things like that, but I pulled this thing out, and I just handed 18 it over to the FBI. 19 20 21 22 Look, I went into the room where I don't know much about the electronics and THE COURT: And it just so happened that they requested it soon enough that it hadn't recorded over it? MR. COONEY: That's right. was based on the investigation. 23 THE COURT: 24 MR. COONEY: 25 THE COURT: That's right. I mean, it And I don't know -- It was either fortuitous or unfortuitous? Exactly. And, Mr. Eastepp, I assume you don't quarrel Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 330 of 344575 1 with that, the way it's kept? MR. EASTEPP: 2 It's the maintained issue; you know, who 3 set these timers and that issue. 4 defined time period -THE COURT: 5 6 Because again, because it's a So it could be as simple as -- and I'm using this facetiously a little bit, but it didn't spring forward. MR. COONEY: 7 It could be -- so, I mean, and I'm 8 speculating, but it could be it didn't spring forward, power 9 went out for a moment and it reset. 10 You know, all -- any number of things could have -THE COURT: 11 And again, Mr. Eastepp, you don't argue with 12 that, that it could be a simple cause. 13 there's a simple cause for the time to be wrong, why isn't there 14 a simple cause for the date to be wrong? MR. EASTEPP: 15 Exactly. But your point is if I don't otherwise contest it's 16 a -- you know, it came from those offices and that's Gene 17 Pedraza on there and that's Cindy Hinojosa on there and those 18 things. It's because of this defined time in the indictment. 19 THE COURT: 20 MR. COONEY: All right. I'm going to think about this. And we don't object to that argument, by 21 the way. 22 out, and I anticipate revealing to the jury that we can work out 23 a stipulation or we can do it another way, but -- 24 25 We don't -- you know, look, this is going to shake MR. EASTEPP: See, now it comes to that point of who is his witness that's going to say that the time is wrong and it Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 331 of 344576 1 wasn't properly maintained? 2 Special Agent Green, can't testify to that, I don't think. 3 he said, he just gave the VCR over or DVD over. 4 his bailiwick. 5 MR. COONEY: Because my former colleague, As That's not in I agree that the technology is not within 6 his bailiwick, but I think he can testify to the kind of 7 representations I've made today. 8 another witness who could do something like that too if 9 necessary, but about just reviewing the tapes and what they -- 10 where the time stamps are. 11 THE COURT: 12 MR. COONEY: 13 14 15 All right. I also think we might be -- maybe we can work out a stipulation. THE COURT: I don't know. Well, is there -- I mean, Mr. Eastepp, I don't hear you objecting. 16 MR. EASTEPP: 17 THE COURT: I -- Wait, wait. 18 Agent Green can testify to. 19 it's kept. 20 Potentially there could be Let me finish -- to anything And by that I mean: Here's how I got it. You know, I guess what I'm saying in a way of saying it, 21 that he can attest to the business records of it. 22 it's not a business record. 23 testify as to all those aspects of it. 24 objecting to is the reliability of it. 25 Here's how MR. EASTEPP: Right. And I know But, I mean, that if asked, he will What I hear you It's about this date, which I Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 332 of 344577 1 guess is maintenance is the term Mr. Cooney used is probably the 2 best term. 3 think is trying to get to his family on spring break, and I'm 4 sympathetic to him. 5 have that he handed it over to the FBI pursuant I think to a 6 subpoena. 7 Yeah, and I don't want -- Special Agent Green I I admit we don't have a problem and never Remember, we toured their office. He took us in and showed 8 us the room. That's never been the issue, nor is it that it -- 9 you know, the cameras were operable correctly, other than the 10 date and time stamp. 11 think that's within his purview. THE COURT: 12 That's the only thing, and I really don't Mr. Cooney, as far as anything Agent Green 13 would testify to, basically he's just going to prove it up as a 14 business record of the -MR. COONEY: 15 That's right. That's right. And I don't 16 anticipate that actually he would be able to provide all that 17 much testimony about date stamps and things like that. 18 it's just, you know, here it is and my understanding. THE COURT: 19 I think And, Mr. Eastepp, are you willing to 20 stipulate that it's a business record, albeit not a reliable 21 one? 22 Green leave. Here's what I'm trying to do. 23 MR. COONEY: 24 THE COURT: 25 to rule on this right now. I'm trying to let Agent Right, right. Because if not, I'm going to -- I don't want I'm going to think about it Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 333 of 344578 1 2 overnight because this reliability thing is troublesome. MR. COONEY: And can I just offer one other thing for 3 the record to kind of put it in context that Mr. Starnes has 4 pointed out to me. 5 2011, and it shows Ms. Hinojosa entering the building at 6 5:08 a.m. 7 time that she entered the building on that particular day. 8 so -- because this is not a time that she ordinarily came to 9 work, at 5:08. 10 For example, we have video from October 5th, And we are supremely confident that that's not the It's likely about four hours off. And so the point being is that this is something that 11 happens. 12 at 4:00 a.m. or 5:00 a.m. or whatever it is. 13 discrepancies exist. 14 You know, like we said on many days, the tape starts So those kind of Look, I think we don't dispute that Mr. Eastepp is -- that 15 he can make arguments about it, and he's entitled to get 16 information like that into the record. 17 18 THE COURT: Well, no. I understand what you're saying. I mean, you're basically arguing it ought to go to the weight. 19 MR. COONEY: 20 THE COURT: Yep. And Mr. Eastepp is arguing, you know, some 21 things are just so inherently unreliable, they shouldn't be 22 admitted. 23 And MR. EASTEPP: Right. 24 that they'll highlight. 25 office on some day. Because it's certainly the date It's not just that he was in that It's that day. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 334 of 344579 1 THE COURT: Okay. 2 MR. EASTEPP: But I don't think Special Agent Green 3 needs to stick around. 4 something is probably not within his bailiwick. 5 I think whether they can prove it or Again, I'm trying to help you here, Special Agent Green. MR. COONEY: 6 And I actually agree with Mr. Eastepp 7 insofar as I think the issue was we're bringing Agent Green here 8 really to testify: 9 and got it. Look, the FBI asked me to get this. I took it out and I gave it to them. MR. EASTEPP: 10 I went That's something I'll stipulate to. 11 don't have a problem with that one. 12 and -- 13 MR. COONEY: 14 THE COURT: I It came from that office The issue is -And, agent, let me ask you this. I assume 15 at the time you got it and turned it over to the FBI that you 16 had no idea what the time stamp on it was, didn't even know 17 whether it was appropriately timed or inappropriately timed. 18 THE WITNESS: 19 THE COURT: That's a safe assumption. Okay. I did not know. And as far as the reliability of what 20 time it was, based on the tape, you have no idea and can't 21 contribute to this discussion. 22 THE WITNESS: 23 MR. COONEY: I cannot. And just to also make it clear, you have no 24 other information that would suggest it's otherwise unreliable 25 in terms of you haven't experienced that the date is just Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 335 of 344580 1 haywire. You haven't done anything with it other than pull it 2 out of the thing, right? 3 THE WITNESS: That's correct. 4 MR. EASTEPP: I'm just guessing, you've never even 5 looked at the pictures before this, had you? THE WITNESS: 6 No, sir. I was shown this video and had 7 this same conversation with Agent Bob Krupa with FBI who had 8 their analyst go through it or -- I'm not sure who it was. 9 Someone went through it, and we had this exact same discussion. MR. EASTEPP: 10 What I meant was before you handed the 11 FBI, just in your duties in that office, you had never even had 12 an occasion to look at it, had you? 13 THE WITNESS: 14 THE COURT: 15 Okay. All right. All right. Let's -- is there anything else that Agent Green can contribute to this? 16 MR. COONEY: 17 THE COURT: 18 MR. EASTEPP: 19 Oh, no, sir. I don't think so, no. All right. You can step down. Can he be excused, Judge? I think that's what he wants to hear. 20 THE COURT: I know. 21 THE WITNESS: When's your flight? Tomorrow, but I'm in Houston. If I'm 22 needed, I can be back in a very reasonable amount of time with 23 Southwest Airlines right here in Harlingen. THE COURT: 24 25 least. All right. You're temporarily excused at Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 336 of 344581 1 All right. Let's go to our other issue, because I am going 2 to mull this. 3 they pay me the big bucks to make these decisions. 4 5 I'm -- I'm not happy either way, but that's why Let's go to the emails, Mr. Eastepp. MR. EASTEPP: Judge, I -- frankly I'm a little puzzled 6 both by the objection and the ruling. 7 disrespectfully, but I think they admit they're authentic. 8 now shown them to him. 9 All of them in here were either to and from -- that have at 10 least as parties to the conversation largely Wayne Ball and 11 Mr. Vargas, some with Mr. Pedraza and Mr. Vargas. 12 couple where somebody else might be copied, as he said. 13 there's two, quote, conspirators on all of them. 14 directly to his testimony in the government's case. 15 16 THE COURT: 18 THE COURT: 21 22 There's a But And it goes That's one of the reasons -MR. EASTEPP: 20 I've He admits they came from his computer. Let me see them. 17 19 And I don't mean that Oh, I'm sorry. -- I haven't allowed them in is no one has shown them to me. MR. COONEY: Our objection is simply a relevance, what are they being used for? THE COURT: Okay. And hearsay, the hearsay upon hearsay. I think we're going to have to take 23 these one at a time. And I may have your only copy, 24 Mr. Eastepp, but I'm looking at the -- let me -- Cristi, you're 25 going to have to help me here. Hand that to Mr. Eastepp. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 337 of 344582 1 What's the relevance of that? 2 MR. COONEY: It might be -- 3 THE COURT: 4 MR. EASTEPP: 5 THE COURT: I mean, it's dated 2009. No, sir. It's dated June 28th of 2011. Well, that's the email, but the attachment 6 is a 2000 -- it had the date 2009 on it. 7 to figure out. 8 9 MR. EASTEPP: simple concept. I was looking, trying Well, the relevance would be it's a fairly It's just that Wayne Ball is sending reports to 10 him via email. 11 some -- when you look at others, you're going to see some where 12 one -- they then leave Vargas and go to Gene Pedraza, and 13 they're still under Wayne Ball's name. 14 15 It's not the content of the report. THE COURT: It's This is, Mr. Eastepp, as far as you know, the entire email? 16 MR. EASTEPP: 17 THE COURT: I'd have to know exactly which one. I meant all of them. I mean, in other 18 words, you got the email and you've got the attachment. 19 the complete attachment? 20 MR. EASTEPP: Yes, yes. This is And they're trackable, meaning 21 the government can look, because we obviously got these from the 22 government. 23 click and get the same attachment. Can look at the date and time of his emails and 24 THE COURT: What's the relevance of this one? 25 Cristi, hand that. Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 338 of 344583 1 2 That one doesn't have an attachment. MR. EASTEPP: This is just -- oh, this is -- this one 3 would be an impeachment. 4 so he can understand. 5 I'll show it to Mr. Cooney as I talk First it just shows -- you know, the first page is just one 6 of these examples of Mr. Pedraza sending an email to take a look 7 at the case. 8 sleep in through lunch. 9 time with Gene." 10 11 12 But this is the one where he says he's going to "I'm going to do my gov trip and face That's where I got this when I asked him earlier today. Most of these, Judge, are just that quick; some of them even quicker. They're -- 13 THE COURT: All right. 14 MR. COONEY: Yes, sir. 15 THE COURT: Here's what I want, Mr. Cooney. My homework is to figure out the date and 16 time stamp. 17 this you really object to. I mean, I'm looking at these. Is 18 there hearsay in hearsay? Yeah, there is in some places. I 19 mean, I'm just reading one that says, "I talked to channel 20 so-and-so reporter, and that reporter said X." 21 Your homework is to figure out is there anything to MR. COONEY: I really mean it. I'm not trying to just 22 kind of put up a fight for the sake of putting up a fight about 23 inconsequential material. 24 hard time understanding is exactly what they are being offered 25 to rebut or to establish. But part of the thing I'm having a Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 339 of 344584 1 So, for example, the impeachment, now I understand that. 2 think, though, he needs to be confronted and impeached. 3 actually don't think that the email would necessarily come in 4 itself, depending on the answers to the question. 5 from that, it's not sworn testimony. 6 confront him and impeach him, then by all means. 7 I And I And apart But if he wants to With the others, I really am just trying to figure out 8 exactly what they're being proffered for. 9 proffered to establish that they're emails about cases back and 10 forth between Wayne Ball and Robert Vargas, we may even be able 11 to reach a stipulation about it as long as there's -- 12 THE COURT: And if they're being If that's all there is, why don't you 13 stipulate? 14 Mr. Eastepp, because I can tell you the jury was doing their 15 best to stay awake this afternoon. 16 I mean, if that's the whole purpose of this, MR. COONEY: They were dying. And Mr. Kidd is correct. He just reminded 17 me that as we were arguing before, Mr. Vargas testified to that, 18 so this corroborates his testimony in that respect. 19 MR. EASTEPP: Judge, I guess I'll just -- one reason why 20 I briefed some of this out, this theory that if something is 21 authentic, and it's no doubt these are government records. 22 These are not where they're talking about -- all these are 23 related directly to their jobs. 24 in there, meaning that -- like about a Channel 5 reporter, well, 25 that's not being offered for the truth of the matter. If there's anything irrelevant But Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 340 of 344585 1 sometimes the issue is -THE COURT: 2 I mean, I -- we're having a case about the 3 Department of Homeland Security. 4 all the documents that belong in the Department of Homeland 5 Security can't be admitted into evidence. 6 that. MR. EASTEPP: 7 8 I'm offering? The jury can't handle Well, these are what, ten, 15 emails that It's not some huge offer, Judge. MR. COONEY: 9 At some point I've got to say I just don't want to kind of say no 10 problem, we'll let them all come in, without having an 11 understanding of what they're being offered to rebut and how 12 they might be argued in closing. 13 relevance, given particularly the testimony of Mr. Vargas. THE COURT: 14 I just don't see facial Well, we may take them one at a time. I 15 don't necessarily say they're irrelevant, so I'm not sustaining 16 your relevancy objection. 17 basically -- Mr. Cooney, you basically conceded they are what 18 they -- 19 MR. COONEY: 20 THE COURT: And they are -- I mean, you Absolutely. There's no dispute. They are what they purport to be. So if 21 they're really -- if you truly don't have an objection to the 22 hearsay within hearsay, which some of them have but some of them 23 don't have, you know, I'm going to -- we're just going to take 24 it on a relevance basis and let -- I'm going to let Mr. Eastepp, 25 you know, utilize them. And then if it becomes clear they're Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 341 of 344586 1 2 not relevant, then you can object. Obviously my concern, besides, of course, I want both sides 3 to get a fair trial is we're now done with day 2 of trial and we 4 have two witnesses done. 5 witness. 6 MR. EASTEPP: 7 THE COURT: 8 9 10 Well, we're not done with the third Oh, you're right. Unless you're giving him up, which I don't think you are. MR. EASTEPP: THE COURT: No, I'm not. So we only have two witnesses done. I mean, 11 I have one of the busiest dockets in the United States, and I 12 got a case set right behind this. 13 even before this case is done. 14 MR. EASTEPP: We're picking a jury maybe Well, on that subject, let me just say I 15 quit objecting to all of this administrative stuff about whether 16 they're sitting down and having case reviews and all these 17 things that I think don't push the ball with the government 18 proving whether Gene Pedraza ordered somebody to make a false 19 document. 20 That added today to a lot of the time. THE COURT: And I'm not picking just on you, 21 Mr. Eastepp. I mean, you know, I'm just telling both of you 22 this, that -- and I'm not saying you have to put a guy on the 23 stand and say, "State your name. 24 you can give a little context to things. 25 looking at the government's witness list, which is substantial, What do you know?" I mean, But, I mean, I'm just Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 342 of 344587 1 and you have one or two names to add to that. 2 going to do less than two witnesses a day, you know, I don't 3 have a month to devote to this trial. 4 MR. EASTEPP: 5 THE COURT: And if we're only Well -- To the extent those emails -- I mean, I'm 6 going to allow you to use them unless Mr. Cooney has a 7 legitimate hearsay objection. 8 in hearsay; but unless there's relevance in there, let's -- and, 9 you know, obviously one of those is clearly an impeachment And I know there's some hearsay 10 because that already came up in today's testimony. 11 statement I assume he's going to use for impeachment came out on 12 cross. 13 time. 14 At least the But let's -- we'll take -- we'll take these one at a MR. COONEY: If we could just get copies of them 15 tonight, we'll take a very close look and we'll come in ready to 16 take them -- to see what we can work out tonight. 17 THE COURT: If you'll do that, and we'll need to get 18 stickers on them. 19 to make them right now, and that will -- she's dying to do that. 20 I can tell by the look on the back of her head, which is all I 21 can see. 22 23 24 25 If you need copies, why don't you get Cristi And all right. We'll see you guys 8:15 in the morning. I'm going to think about the video. MR. COONEY: May I say, we're giving ourself one more homework assignment, Your Honor, that we'll provide to you first Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 343 of 344588 1 thing in the morning -- if we can email it beforehand, we 2 will -- but that we'd appreciate you looking at before you rule. 3 We'll put together a chart as to what we're talking about, the 4 times, so that we can just have a good sense of what the 5 reliability level is with respect to those. 6 THE COURT: 7 MR. EASTEPP: 8 11 12 THE COURT: All right. Stick around. Cristi will give Mr. Cooney copies of that. (Court adjourned at 6:47.) * * * 14 (End of requested transcript) 15 17 Well, he should suffer like the rest of us. See you guys in the morning. 13 16 Which means Mr. Starnes doesn't get any rest tonight, is what that means. 9 10 Okay. -oOoI certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 18 19 Date: May 22, 2014 20 21 22 23 24 25 /s/________________________ Signature of Court Reporter Barbara Barnard Case 1:13-cr-00305 Document 148 Filed in TXSD on 05/23/14 Page 344 of 344589 1 I N D E X 2 JURY TRIAL 3 MARCH 11, 2014 4 Question regarding a juror GOVERNMENT'S WITNESSES: 7 8 247 CHRONOLOGICAL INDEX 5 6 PAGE DELLA SAENZ ROBERT VARGAS DIR CROSS RDIR RCRS 252 336 294 437 330 334 V/DIRE 388 9 ALPHABETICAL INDEX 10 11 Name Page 12 SAENZ, DELLA VARGAS, ROBERT 252 336 13 GOVERNMENT'S EXHIBITS 14 15 NO. 16 21 17 18 19 20 21 22 23 24 25 DESCRIPTION Partial videotape OFFRD 249 ADMTD W/DRAW Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 1 of 311 590 IN THE UNITED STATES DISTRICT COURT 1 2 3 4 5 6 SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-13-305 ) EUGENIO PEDRAZA ) __________________________________) 7 8 JURY TRIAL, DAY 3 BEFORE THE HONORABLE ANDREW S. HANEN MARCH 12, 2014 VOLUME 3 9 10 11 12 13 APPEARANCES: 14 For the Government: 15 16 MR. J. P. COONEY MR. BRIAN K. KIDD USDOJ, Criminal Division 1400 New York Ave., N.W., Suite 12100 Washington, D.C. 20005 17 For Deft. Pedraza: MR. LARRY EASTEPP Larry D. Eastepp P.C. 5300 Memorial, Suite 1000 Houston, Texas 77007 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)982-9668 18 19 20 21 22 23 24 25 Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 2 of 311 591 THE COURT: 1 2 3 Okay. Counsel, where are we vis-a-vis the emails that Mr. Eastepp wants to use with this witness? MR. EASTEPP: 4 5 Be seated. You're probably not going to like this, but we've worked it out, Judge. 6 THE COURT: You know I hate that, you know? 7 MR. EASTEPP: We worked on it this morning before you 8 came in, and I took some out of my request, and we've shown them 9 and gone over them. 10 I think they have one minor thing they want to bring up, but otherwise -MR. COONEY: 11 I think we are in agreement. They are 12 coming in. The ones that he's identified we've agreed on are 13 coming in. The only thing we reserve is we just want to take a 14 closer look before they actually go to the jury to see if we 15 have any proposed redactions based on the fact that many are not 16 coming in for the truth. 17 not -- the content of them are not coming in for the truth, but 18 I don't think this is going to be a problem, and it certainly -- 19 at this point they're in. 20 the fight. THE COURT: 21 22 25 If we lose a redaction fight, we lose Do we have numbers for them? Have we numbered them by exhibit number is what I'm talking about. MR. EASTEPP: 23 24 But, in fact, I think all of them are I already had it, Exhibit 7 as the Vargas emails. THE COURT: Collectively? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 3 of 311 592 1 MR. EASTEPP: Right. Yes, sir, because they're 2 individually dated and timed. 3 record so you can -- they're not Bates stamped because we got 4 them electronically. 5 government knows, they don't have a Bates stamp. 6 7 8 9 10 THE COURT: I'll make sure that's in the And when you print those out, just as the All right. And they're being admitted, but not for the truth of the matter asserted? MR. EASTEPP: As to the attachment I think is what he's talking about. MR. COONEY: That's right, as to the attachment. Also, 11 though, I think as to the attachment but also as to the content 12 of the emails themselves, the -- essentially the statements 13 within the content of the email. 14 them is an impeachment, and so that doesn't come in for the 15 truth actually. 16 statement. 17 But I don't think -- one of It just comes in to show an inconsistent But that's one thing. THE COURT: Okay. But, I mean, you don't need them for 18 the truth of the matter asserted anyway. 19 you're putting them in. 20 that they happened. 21 22 23 MR. EASTEPP: That's not the reason You're putting them in just to show Right, yes, sir, the pattern, that they're coming back and forth. THE COURT: Right. Okay. So for the record, I'm going 24 to admit Defendant's Exhibit 7, not for the truth of the matter 25 asserted. And I'll tell the jury just like I did with Agent Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 4 of 311 593 1 Green's, that one piece of testimony that went in with Agent 2 Green. 3 attachments that need to be redacted, we have just a general 4 agreement that we'll do that before it goes to the jury? And then if there is some material in any of the 5 MR. EASTEPP: 6 MR. COONEY: 7 THE COURT: 8 MR. COONEY: 9 10 11 I'm fine with that, Judge. That's right. All right. And we'll make sure we take a look at that well enough in advance, so if we need to tee something up, we can. THE COURT: Okay. Let me switch gears and talk a minute 12 about the tape. The tape itself minus the date stamp and the 13 time is clearly admissible. 14 MR. EASTEPP: 15 THE COURT: No -- I don't dispute that. I'm worried about that. 16 the exhibit you filed. 17 we're using it today. 18 19 20 MR. COONEY: And I've looked at And while I'm not -- and I don't think At least I don't -- It somewhat depends on where we get, but it's not as if we're going to -THE COURT: But here's -- well, really I'm telling you 21 an advisory ruling, that it's probably going to be my ruling, is 22 that the tape can come in without the stamp of the date and 23 time, but I will allow testimony as to the exhibit, the exhibit 24 you filed last night. 25 wrong with one of the agents gets up and says they -- and says, I mean, I don't think there's anything Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 5 of 311 594 1 "I think this is the tape from January 26th." 2 "Why do you think that?" 3 "Well, it was kept where the January tapes are. And if you 4 look at the January 26 card key entries, it matches the tape 5 exactly." 6 7 8 9 10 11 Now, that I think -- and that is somebody that Mr. Eastepp can then cross-examine. I'm worried about a Crawford issue. That wasn't the objection, but that was -MR. COONEY: I don't -- if I may. I'm sorry. I don't know whose turn it is. 12 THE COURT: 13 MR. COONEY: Go ahead. I understand Your Honor's concern. Two 14 things, and I'll start with the Crawford issue. 15 unless I'm misunderstanding, I don't think there's going to be 16 any kind of a Crawford issue because the type of testimony we 17 will supply will be an agent who -- first of all, the tape is 18 authentic. 19 looked at this tape, and what I did is I watched; and every time 20 I saw Ms. Hinojosa go in, I clicked it and stopped it. 21 22 23 24 25 It's coming in. THE COURT: I don't -- An agent will testify that: I No, I meant there's a Crawford issue if I let it go in with the date and the time on it. MR. COONEY: Oh, I understand Your Honor's -- I understand. THE COURT: I mean, Mr. Eastepp can't cross-examine a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 6 of 311 595 1 tape. MR. EASTEPP: 2 And that's why last night I made a point 3 of saying Dave Green. 4 issues. 5 MR. COONEY: I know he could not get into those But I think that for the agent's testimony 6 to make sense, though, the jury is going to need to know that 7 there is a date and time stamp here on that, and that's how I 8 determined that this is January 25. 9 would be a colossal aligning of the stars for someone to always I mean, I compared it. It 10 go this same exact number of times on this exact deviation. 11 I don't think the date and time stamp on what is essentially a 12 business record presents a Crawford issue. 13 reliability. 14 reliability based on the agent's testimony. 15 But It is its And he is going to get to cross-examine on its THE COURT: Well, see, but that was the same problem we 16 have in the -- not the Crawford case itself, but the post 17 Crawford cases where something was a business record and got 18 in -- would have -- was admitted as a business record and, you 19 know, went -- went to an ultimate issue in the case, like a DWI 20 finding. 21 cocaine -- what's that, Melendez? 22 What was that Bullcoming and -- or the -- this is the MR. COONEY: Melendez-Diaz, absolutely. But what the 23 Court found in those cases is that the underlying work of 24 conducting a chemical analysis and whatnot and its conclusion is 25 testimonial in nature. A date and time stamp is not Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 7 of 311 596 1 testimonial. It is classic Crawford. 2 understand -THE COURT: 3 Now, I could Well, the problem I have -- and if there's 4 no question about its reliability, you might convince me of 5 that. MR. COONEY: 6 And my point is that there will be an 7 opportunity to cross-examine on the reliability of the date and 8 time stamp based on the testimony we propose providing. 9 my point is I -- I'm not opposed to it not coming in initially I guess 10 without the date and time stamp, but it seems to me that it 11 would be odd testimony from an agent and somewhat almost 12 misleading to come up and say I figured out that this was 13 January 25. 14 you know, over a period of like a month at all the entries in 15 and out and figured out this date. THE COURT: 16 17 I don't know what's misleading about that. I would think the jury would think that's what they did. MR. EASTEPP: 18 19 It would suggest that they almost went and looked, I've always understood that is what Bob Krupa did. MR. COONEY: 20 Well, what I mean is without any guidance 21 from a date and time stamp on the video. Do you know what I 22 mean? 23 25th because that's what the business record purports it to be, 24 a video from the 25th. 25 we compare all of the entries on the key card reader to -- We do start with the presumption that it's the And then to confirm that it's the 25th, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 8 of 311 597 1 THE COURT: I don't think there's anything wrong -- and 2 I'm thinking out loud here. 3 let's -- you know, one of the agents getting up and saying: 4 thought it was the 25th because Dave Green -- I told Dave Green 5 to get me the right tape, and this is what he got me. 6 didn't assume it was the 25th. 7 how I doublechecked it. 8 9 MR. COONEY: Okay. you know what I mean? 11 you, but -- 13 14 But with -I But I I doublechecked it, and here's As long as we can have testimony like that, "I had a reason to believe that it was the 25th." 10 12 I'm not ruling. THE COURT: Do I mean, not for the truth or what have He has reason to believe because that's what he asked for. MR. COONEY: And to be clear, though, the agents just 15 asked for, "Give us the tape." 16 stamp, went to the 25th, had -- we do look. 17 stamp and the date stamp. 18 the right day, and we confirm that it is the right day based on 19 the analysis. 20 21 THE COURT: And then based on the time We look at the time We've got concerns to make sure it's Well, that I may have a little problem with. I may have a problem with the date and time stamp testimony. 22 MR. COONEY: 23 THE COURT: Okay. Because -- and here's -- the reason is, it's 24 just a practical reason, is if the jury -- if we tell the jury 25 there's a date and time stamp, they're going to say: Well, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 9 of 311 598 1 where is it? 2 I'm not ruling. 3 MR. COONEY: 4 THE COURT: You can talk me out of that. I understand. I understand. I mean, I think that opens a different can 5 of worms, because if the jury hears there's a date and time 6 stamp -MR. COONEY: 7 I mean, the -- what I'm envisioning, Your 8 Honor, is testimony something like this. 9 like we watched it in court yesterday. The video goes up just It says January 25th at 10 10:00 a.m. 11 to be 10:00 a.m. 12 reliability of the date and time of this because there are 13 other -- there are other recordings on here that occur at like 14 4:00 in the morning, which we just knew was incorrect because we 15 knew this stuff wasn't going on at that time generally. 16 And there's testimony that we knew it was unlikely And we frankly had concerns about the So to confirm that we had the right date, we went back and 17 compared all of the entries on the tape to all of the entries on 18 the key card reader. 19 always approximately two hours 31 minutes, so we knew we had the 20 right date. 21 occurred, but we know -- you know, we proffer that it's the 22 25th. 23 We determined that the deviation was We just don't know exactly what time these things THE COURT: Well, I'm envisioning it going up in front 24 of the jury without the date and time stamp and then that 25 testimony. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 10 of 311 599 1 MR. COONEY: 2 THE COURT: 3 4 was the 25th? And then that exact same testimony. And you can say, "And did you confirm this And how did you confirm it?" "Yes, I confirmed it because I watched people walk in and 5 out, and I matched it up to the card key, and it matches 6 exactly." MR. COONEY: 7 8 Okay. I understand. As long as we can elicit that testimony, then no problem. THE COURT: 9 Because otherwise how does Mr. Eastepp 10 cross-examine? And, quite frankly, listening to Agent Green -- 11 and I don't think either of the agents here today are in a 12 position that they can verify that date and time stamp. 13 do they think it is? 14 they're not -- their expertise is not in video recorders. MR. COONEY: 15 Yeah. I mean, But, I mean, they don't know -- No question about it. I think the only 16 reason we can start with it as being the date and time stamp on 17 there is that it is the business record because it is, you know, 18 an authentic video stored in the ordinary course. 19 mean that that date and time is right. 20 But if we can elicit the testimony that Your Honor has proposed, 21 then I don't think we have a problem here. THE COURT: 22 23 24 25 Okay. Okay. That doesn't There's no question. Well, that's the way I'm leaning. Are we ready to go then? MR. COONEY: email issue. Yeah. Oh, yes, we are. We covered the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 11 of 311 600 THE COURT: 1 Cristi just handed me a note just for 2 y'all's information that we have a juror that's having slight 3 stomach problems. 4 question, you know -- you know why. So if we take a break in the middle of a 5 MR. COONEY: 6 THE COURT: 7 Okay. (Jury enters courtroom) THE COURT: 8 9 Understood. All right. Ladies and gentlemen, be seated. Good morning. 10 THE JURY: 11 THE COURT: Good morning. You know, I was going to say I'm sorry to 12 drag you up here on such a beautiful day. 13 office this morning, the sun was coming up in the east and it 14 looked like it was going to be -- did you see the rain that's 15 coming? 16 just been impossible. 17 When I drove to the It's -- I can't predict the weather this winter. It's Would you have Agent Vargas join us? 18 MR. COONEY: 19 THE COURT: Yes, Your Honor. I'm sorry. Let me mention one other thing. I'm sure 20 y'all have noticed that I tend to work long between breaks. So 21 if someone needs a break, you know, if you wave at me, give me 22 the thumbs up or whatever or tell Meme and he'll tell me and -- 23 come on up, agent -- and bring my attention to it. 24 lot of times I'm leaning back here listening to the evidence -- 25 go ahead and be seated. Because a So this is not supposed to be the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 12 of 311 601 1 Bataan death march, but I am trying to move expeditiously. Okay. 2 Mr. Eastepp, please continue. MR. EASTEPP: 3 Thank you, Judge. CROSS-EXAMINATION 4 5 BY MR. EASTEPP 6 Q Good morning, Mr. Vargas. 7 A Good morning. 8 Q Where we stopped yesterday was regarding a phone call that 9 you received after these events from someone in Washington, just 10 to set the scene from yesterday. Do you recall that? 11 A Yes, sir. 12 Q That, in fact, occurred because you had gotten an email 13 asking you to make a call or be available for a call. 14 which one. 15 A That's correct. 16 Q And after this exchange of emails, a call, in fact, 17 occurred. 18 A Yes, sir, that's correct. 19 Q And I'm not going to go into what the person told you. 20 be clear about that. 21 end of the line? 22 A 23 his name. 24 himself as Inspector Izzard's boss, head of inspections. 25 Q I forget Just But who is the person that's on the other The way he introduced me -- introduced himself to me was by He said his name is John Ryan, and he identified And do you recall if you placed the call or the call came to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 13 of 311 602 1 you? 2 A 3 each other. 4 Q 5 called a 202 or a Washington, D.C. exchange number? 6 A Yes, sir, I believe so. 7 Q Okay. 8 Washington, D.C. you were talking to? 9 A Yes, from the emails after we exchanged, yes. 10 Q Right. 11 be? 12 A Well, I knew I was calling someone in Washington, yes. 13 Q You thought he might not be who he was purporting to be? 14 A I knew at that point once we started talking to each other. 15 When he said he was Inspector Izzard's boss, I knew who I was 16 talking to. 17 Q 18 the subject -- concerning your exchange with Izzard that had 19 occurred about these MOAs? 20 A Yes, sir. 21 Q And did you have a discussion about the clarification? 22 A Yes, sir, we did. 23 Q And in that discussion, did you ever tell him that Gene 24 Pedraza told you to fabricate or lie or any of the other things 25 I went over yesterday? I believe I called him. I believe I did after we emailed Would that tell you or refresh your memory you probably Right. So you knew you were -- that it was somebody in So you were comfortable he was who he purported to And was the subject -- again, not the words, just He wanted some clarification. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 14 of 311 603 1 A No, sir. 2 Q And how long did that conversation last? 3 A That initial conversation was 15, 20 minutes. 4 Q Okay. 5 that we've been discussing here? 6 A 7 you can say they were related to the MOAs, but the majority of 8 the phone call was related to the MOAs, yes. 9 Q And was the whole time the subject of the MOA issue There were other things that we discussed, not -- I guess It didn't contain idle chitchat like how are your kids doing 10 or, you know -- 11 A No, sir, it did not. 12 Q -- how are the Cowboys playing this year or any of that sort 13 of stuff? 14 A No. 15 Q It was really a pretty serious phone call, you would 16 describe it? 17 A Yes. 18 Q In there did you ever say that you -- to him that you and 19 Gene Pedraza conspired to put false documents into the records 20 of the agency? 21 MR. COONEY: 22 THE COURT: 23 THE WITNESS: 24 BY MR. EASTEPP 25 Q Objection. Form of the question. Overruled. No, sir. Was this the only time you talked to that individual? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 15 of 311 604 1 A No, sir. 2 Q When was the next time you talked to that individual, 3 Mr. Ryan? 4 A That same evening. 5 Q And what were the circumstances of the second call? 6 A Based on the first conversation, Mr. Ryan proposed two 7 options for me. 8 didn't feel comfortable with the options, and I wasn't prepared 9 to answer it. 10 about it. I told him that I was not in a position or And I asked him if I could sleep on it or think He said yes. Told him I would call him back. The following day, however, that evening I had made up my 11 12 decision thinking about I wanted to talk to him more, so I 13 called him that evening, and it was -- we discussed basically 14 the same thing. 15 Q 16 that Gene Pedraza needed to be fired and needed to be out of 17 that office immediately? 18 A I don't recall telling him Gene Pedraza needed to be fired. 19 Q Do you recall giving sworn testimony at the grand jury on 20 February the 10th of 2012? 21 A Yes. 22 Q Do you remember being under oath on that day? 23 A Yes. 24 Q Was your memory on that day at least as good as it is today 25 in here about these events? Do you recall in the second conversation actually discussing Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 16 of 311 605 1 A I would say so. 2 Q On page 130 at line 9, you were asked, "Called who?" 3 THE COURT: Wait, wait, wait. 4 MR. EASTEPP: Show it to him. Oh, sorry, Judge. 5 BY MR. EASTEPP 6 Q 7 The answer that picks up on line 22 where I said, quote, "I know 8 you're going with this. Again, do you recall on page 130 at line 9, "Called who?" MR. COONEY: 9 THE COURT: 10 If I play this game with you guys" -- Objection. Sustained. 11 BY MR. EASTEPP 12 Q 13 you wanted Gene Pedraza fired or not? 14 A It does. 15 Q And it, in fact, talks about that, does it not? 16 A No, it doesn't. 17 Q What does it talk -- 18 A I never said I wanted him fired. 19 Q You wanted him out of there. 20 A That reads is -- what I said is "if he remains in that 21 office." 22 have -- I wasn't in a position to suggest he get fired. 23 Q If he remains in that office what? 24 A What he was asking me to do is going to come out anyways. 25 Q If he remains in that office, what? After reading it, did that refresh your memory as to whether That doesn't mean he's going to get fired. I don't Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 17 of 311 606 1 A I'm not sure what you're trying to ask me. I've already 2 answered you. 3 remains in that office, that doesn't mean that he couldn't get 4 transferred somewhere else. 5 Q You wanted him out of that office -- 6 A Not fired. 7 Q -- or everybody else was going to leave? 8 A That's the way I felt. 9 Q And that was the way y'all felt as the inspection started, I wasn't suggesting that he get fired. If he 10 was it not? 11 A 12 with the MOAs. 13 Q 14 inspection about all y'all wanting him out of there and what was 15 going to happen, right? 16 A Not with me. 17 Q You didn't hear the other agents talking about it? 18 A Kris and I or Agent Healey and I talked about it. 19 Q And you didn't hear them talking about having -- there were 20 other meetings and going to lunch and meeting at people's 21 houses? 22 A 23 with anybody. 24 Healey. 25 Q That's the way I felt after he asked me to do what I did And there were a series of meetings after -- around the I never went to anyone's house. I never had any meetings The only person I spoke to this about was Agent About wanting him out of there. It wasn't -- Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 18 of 311 607 1 A We discussed what we thought was going to happen to him. 2 Q Okay. 3 remember the people from Washington coming in early October? 4 A I do. 5 Q And did you go to lunch with everybody after that meeting? 6 A I don't recall. 7 Q Do you recall having any discussions with anyone after that 8 particular meeting that y'all were surprised he wasn't fired and 9 that Frost was backing him? 10 A And, in fact, when the Frost meeting occurred, do you After Frost had his conference with the agents -- 11 MR. COONEY: 12 THE COURT: 13 MR. COONEY: 14 What? Assuming facts not in evidence. May we approach on this? 15 THE COURT: 16 (At the bench) 17 Objection. Yes. MR. COONEY: I believe there was a question and answer 18 about Frost and his confidence. I haven't heard any testimony 19 about this. 20 Washington, D.C. and meeting with the agents? 21 think -- first of all, I don't think it's relevant. 22 all -- particularly based on Your Honor's earlier ruling. 23 second, I'm not sure -- Are we getting into Tom Frost coming from 24 THE COURT: 25 MR. EASTEPP: I mean, I Second of But Where are we going here? I didn't -- I asked him about the agents' Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 19 of 311 608 1 reaction to the Frost meeting. 2 or anything like that. MR. COONEY: 3 4 THE COURT: Wait, wait, wait. What's the relevance of that? MR. EASTEPP: 7 8 But there's been no testimony about a Frost meeting. 5 6 I didn't ask him what Frost said Because after the meeting, they're all still talking about, well, we thought he was going to be fired. THE COURT: 9 Okay. MR. EASTEPP: 10 What's the relevance of that? The theory has been all along that all 11 this started because they wanted to get him fired, and they 12 thought, well, we need to come up with a reason to get him 13 fired, and it blew up in their own face. THE COURT: 14 Okay. I'll let you -- I mean, you can ask 15 him -- don't ask him open ended questions about what he said. 16 Say, "Was there a discussion concerning whether or not he was 17 going to get fired," or whatever. 18 that. 19 MR. EASTEPP: I'm going to let you ask And as we all know, he's not the most easy 20 witness for any of us to ask questions. 21 witness like him in my career. 22 THE COURT: 23 MR. COONEY: I've never had a You're lucky. May I raise one other issue that I want to 24 make clear, my objection on the grand jury transcript before? 25 It's the same as yesterday. I don't have an objection if you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 20 of 311 609 1 want to go into the grand jury and use the whole question and 2 the whole answer. 3 to go into redirect on this because I think right now the jury 4 is left with the misleading impression that -THE COURT: 5 6 My problem with the snippets, and I do plan Well, I'll let you -- if your objection is optional completeness, I'll let you do it now. MR. COONEY: 7 I'm saying I have no objection if 8 Mr. Eastepp wants to do it because I don't want to be forbidden 9 on redirect from getting into this. MR. EASTEPP: 10 That's a miscommunication, because I 11 showed it to Brian, not to you, and I showed Brian what I was 12 going to do. 13 thought -- I'm not trying to put you in the grease, but I MR. KIDD: 14 For the record, I did say at that time you're 15 going to give him the complete question and the complete answer, 16 and you said yes. So there may be some miscommunication. MR. COONEY: 17 I have no problem going back to it and 18 putting the whole part of the transcript. 19 concerned, the whole thing is coming into evidence. THE COURT: 20 21 All right. As far as we're Let's don't pick and choose. Let's -- 22 (Open court) 23 BY MR. EASTEPP 24 Q 25 you any question about anything that Frost said, okay? Going back to this issue. I'm not talking -- I'm not asking I'm Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 21 of 311 610 1 asking you about the fallout after that meeting with agents. 2 There was still a -- or there were upset agents, including 3 yourself, that after that meeting, Gene Pedraza was still the 4 SAC in that office, correct? 5 A 6 discussing their state of mind with what took place. 7 Q 8 not talking about a formalized, send out an invitation, show up 9 at noon kind of meeting. I don't recall having any meeting with other agents And by meeting, I'm talking any casual conversation. I'm 10 A I recall things that took place after with Agent Ball. I 11 recall Kirk Beauchamp coming and introducing himself. 12 recall sitting down and saying they couldn't believe what just 13 took place. 14 structure and the new -- the reorganization of what they had 15 just introduced to us. 16 expressing they were upset with the decision that was made by 17 Mr. Frost. 18 Q 19 after that meeting? 20 A 21 But regarding this, I don't recall. 22 Q Regarding the fallout from the Frost meeting specifically. 23 A Well, sure. 24 specific question is whether or not we were -- they were 25 expressing to me or if I was expressing to them that he was I don't We were all still kind of taken in with the new I do not recall anyone coming up to me And you did not go to lunch or talk to any of the agents Well, of course I went to lunch and I spoke to other agents. I'm sure we had discussions on it. But your Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 22 of 311 611 1 going to remain in office? 2 Q 3 whatever term? 4 A What meeting are you talking about? 5 Q When y'all went to lunch after the Frost -- 6 A I don't even remember who I went -- I'm sorry. Do you hear -- was there any discussed in that meeting, You're parsing my words. 7 THE COURT: 8 THE WITNESS: 9 I don't recall that. One at a time. I don't even remember where I went to lunch or who I went to lunch with. 10 BY MR. EASTEPP: 11 Q 12 a very clear memory about. 13 A For example, what? 14 Q All sorts of things said on September the 1st that were said 15 in just a few minutes. 16 don't remember what was said after the -- when y'all all go to 17 lunch? 18 A 19 after. 20 decision, okay? 21 be the new regional boss. 22 people didn't know who he was. 23 reorganization of our office, and we were all discussing that. 24 What does this mean? 25 Kirk the boss? But anything that's bad about Gene Pedraza you seem to have You sure remember all that, but you I just told you that we had several things that took place You have to realize that Mr. Frost came in, made his He introduced Mr. Kirk Beauchamp was going to I didn't know who he was. A lot of He explained to us the Who's the boss? Is he still the boss? We had a bunch of questions. Is Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 23 of 311 612 But no one sat down together and said we can't believe he's 1 2 still here, or we're going to have to try to get him out of here 3 or nothing like that. 4 conversation. 5 that. 6 Q 7 lunch. 8 A No, I said I'm sure I went to lunch. 9 Q Mr. Vargas, try to move on. I don't remember having that I don't even remember even going to lunch after Well, you just said a minute ago you did recall going to I want to stop at this point 10 and go back into something we talked about yesterday, which were 11 a series of emails I showed you. 12 A Yes. 13 Q They've been admitted into evidence. 14 again, when is the time frame you come back from Glenco from the 15 FLETC, your training? 16 A June 2011. 17 Q About when in June? 18 A Mid June. 19 Q This first email -THE COURT: 20 Do you recall those? Just to set the scene Let me -- ladies and gentlemen, this is -- 21 these series of emails are contained in Defendant's Exhibit 7, 22 which has been admitted into evidence not for the truth of 23 what's contained in the email, the actual language contained in 24 the email, but just for the fact that the emails were made and 25 sent. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 24 of 311 613 Go ahead, Mr. Eastepp. 1 2 BY MR. EASTEPP 3 Q 4 to yourself, correct? 5 A Correct. 6 Q Dated June 28th of 2011 at 3:41:55 p.m. 7 A Yes. 8 Q And it's got an AROI document attached. 9 is an AROI? Mr. Vargas, if you'll see, this first one is from Mr. Ball Do you see that? What is that? What 10 A It's a -- it stands for abbreviated report of investigation. 11 Q How does the agency use that? 12 A I believe it's a short version of a full report of 13 investigation. 14 Q 15 It's simply that he's sending you the document as it appears. 16 Do you agree with that as an appearance? 17 A Yes. 18 Q And if we look at the document, do you recognize just as to 19 form that this is an AROI form? 20 A Yes. 21 Q And we see, if we look at the bottom, reporting agent. 22 is that supposed to mean as a general proposition? 23 A 24 report. 25 Q As you see, there's really -- there's nothing on this email. What The person who wrote the report and who was assigned that And approving official being Mr. Pedraza, correct? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 25 of 311 614 1 A Correct. 2 Q And there are two additional pages under this that complete 3 this report. 4 sending you one of his reports on this date? 5 A 6 was acting as supervisor to me. 7 was sending me examples of reports, MOAs, all kinds of things. 8 So I would imagine -- I don't recall taking any part in that 9 case. 10 or -- 11 Q 12 recognize that to mean what is called a Word document? 13 A Yes. 14 Q Versus -- do you know what a PDF, a dot PDF document is? 15 A The technical difference, I wouldn't know how to explain it; 16 but if I see it, yes. 17 Q 18 word processing, dot DOC; and PDF is a photographic display file 19 that's harder to change? 20 A Okay. 21 Q Meaning that this document, you could go into it and change 22 it around and word process it however you wanted. 23 A Okay. 24 Q Do you agree with that? 25 A Sure. But do you recall why Mr. Ball would have been As I mentioned before, when I arrived from FLETC, Agent Ball So if I recall correctly, he I would imagine he sent that to me as a template to go by And again, to show the email, the dot D-O-C, do you Okay. I mean, do you know that one's easily changed as a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 26 of 311 615 1 Q Okay. Next is June 29th, 2011, at 11:47 a.m. Again, do you 2 agree it's coming from Special Agent Ball to you, correct? 3 A Yes. 4 Q And it's another AROI, correct? 5 A Yes. 6 Q And it lists -- again, it's a dot DOC. 7 that as the attachment, correct? 8 A Yes. 9 Q And then of course there's nothing in the email. Do you recognize It seems 10 this is only about sending you a document. Do you agree? 11 Meaning there's no -- he's not giving you instructions or any 12 words in the email itself. 13 A Not on this page, no. 14 Q Right. Meaning it's just his signature block, correct? Then if we look at the AROI, again do you recognize this as 15 16 the form of an AROI? 17 A Yes. 18 Q And if we look down at the bottom of this one, it's coming 19 to you with your name already on it. 20 A Yes. 21 Q Would that -- and there are two additional pages, but it's 22 just simply to show that it's coming to you with your name 23 already on it. 24 A Okay. 25 Q Do you recall why Special Agent Ball would be drafting a Do you agree with that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 27 of 311 616 1 document with your name already on it and sending it to you? 2 A 3 write the AROI. 4 first case that I attempted to close out. 5 Ball, playing supervisory role for me, before I submitted the 6 case, I forwarded it to him so he could review it. 7 he made some changes. 8 me. 9 Q Yes. I believe what took place there is I attempted to It was -- I believe that may have been the very And again, Agent And I'm sure We discussed it, and he sent it back to And that's because y'all had this working relationship where 10 you're helping each other out, including helping draft documents 11 together, correct? 12 A He was helping me out. 13 Q Right. 14 A During this -- 15 Q Right. 16 A That was shortly after I arrived. 17 Q You certainly, I would assume, would have been as willing to 18 help him at that particular moment if he would have asked you 19 for help. 20 A Not in writing reports. 21 Q Whatever it would be, Mr. Vargas. 22 reports. 23 an interview with me, Robert, would you do that? 24 had a cordial working relationship, did you not? 25 A I didn't talk about If he needed help on something like, hey, come go on I would have helped anyone in the office. I mean, y'all Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 28 of 311 617 1 Q Specifically including Wayne Ball. 2 A Yes. 3 Q Here's one that's dated again on the 29th of June at 4 11:41 from him. 5 A Correct. 6 Q You can see under it that it initially arrived from you. 7 You sent him something. 8 A Yes. 9 Q At an earlier time, and then he's responding back to you. Do you see it's got some attachments? Do you see that? 10 Do you agree it appears that that's what has occurred in this 11 sequence? 12 A Yes. 13 Q And again, it's an interview. 14 MOA form? 15 A Yes. 16 Q And then at the bottom again if we look, it's already got 17 your name and Gene Pedraza's name, correct? 18 A Correct. 19 Q And is this another example of him helping you out? 20 A Yes. 21 Q Including going ahead and putting your name on the form 22 ahead of time? 23 A I was closing out that case, so it should have had my name. 24 Q But, I mean, it's clear, at least it seems from the email, 25 he put your name on there and sent it to you. You recognize that this is an Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 29 of 311 618 1 A No. 2 Q That's not what it says? 3 coming from him to you. 4 A At the bottom it says it's from me to him. 5 Q No, that's earlier, and it doesn't show any attachments. 6 MR. COONEY: 7 THE COURT: 8 BY MR. EASTEPP 9 Q If we go back to the email, it's Objection. Sustained. Look at the one at June 29th, 11:41 a.m. Again, do you 10 agree it's from him to you? 11 A Yes, that I do. 12 Q And it has some attachments. 13 had already sent it to him and it's just bouncing back to you? 14 A Yes. 15 Q Do you recall why you would have done that? 16 A Because he was acting as a supervisory role to me, so I 17 wanted to pass it -- show it to him before I submitted it. 18 Q 19 He's not a formal supervisor of the office, correct? 20 A 21 was playing a supervisory role to me. 22 you need anything done, you come to me. 23 else." 24 Q 25 when you were there? He sent me back with MOAs. And you say that. I don't know. Is it important you think you You mean he's informally helping you. It's a good question. I took it as though he He told me himself, "If Don't go to anybody Mr. Vargas, how many supervisors were in the McAllen office Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 30 of 311 619 1 A I would say three. 2 Q By title you're telling me there were three? 3 three? 4 A By title? 5 Q Yes. 6 A It would have been the defendant and ASAC Warren. 7 Q So who's the third? 8 A In my mind, it was Agent Ball for me. 9 Q Again, as I asked you, that's informal in your mind. Who were the He was 10 not designated as a supervisor by the agency, was he? 11 A 12 of the senior officers in the office. 13 going to write something up, before you submit it, send it to 14 me." 15 role to me, then I will. 16 Q 17 was formally a supervisor of the agency? 18 A 19 yes, I have. 20 Q 21 something as a fill in. 22 A 23 administrative leave, there was a position open for -- I believe 24 it was resident agent in charge, and he was selected for the 25 position. I never asked. He told me he's the one that -- he was one I took that, okay. He told me, "If you're If you're going to play supervisory Did you ever see any document, have anybody tell you that he Before this? At any time? You asked me at any time, well, He was at one point designated as a supervisor. You're talking about if somebody was on vacation or No. No, I'm talking about after the defendant was put on Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 31 of 311 620 1 Q So -- 2 A So he was the boss of the office. 3 Q So Wayne Ball was the resident agent in charge above Dave 4 Green? 5 A 6 but Dave Green was not in our office majority of the time even 7 though he was the boss. 8 they designated him the supervisor for our office. 9 Q And he was named the RAC, the resident agent in charge? 10 A I don't remember the exact term. 11 know that he was our immediate boss. 12 Q On June 29th, 2011 -- 13 A No. 14 Q He was not a supervisor? 15 A By title, no. 16 Q That's what I asked about five minutes ago. That's what you're telling us? Below Dave Green. I'm not exactly sure what the title was, They needed someone that was local, and I could be wrong, but I At that point, no. 17 THE COURT: Mr. Eastepp? 18 MR. EASTEPP: 19 THE COURT: 20 MR. EASTEPP: Yes, sir. Stop with the sidebar. I'm sorry, Judge. Yes, sir. 21 BY MR. EASTEPP 22 Q 23 from Mr. Pedraza to you, copied Jody Warren, correct? 24 A Correct. 25 Q And it's from the same case we just saw, is that right, the Again on June 29th, later that day you see at 2:34? This is Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 32 of 311 621 1 1250 case? 2 A Correct. 3 Q Does this tell you that you forwarded those documents that 4 you and Wayne Ball had passed along? 5 Mr. Pedraza in his role as -- and to William Warren in their 6 role as supervisors? 7 A Yes. 8 Q And this one is coming back to you from Mr. Pedraza. 9 see your name? 10 A Yes. 11 Q Made a few edits. 12 MR. COONEY: 13 THE COURT: 14 MR. COONEY: 15 THE COURT: 16 MR. COONEY: 17 THE COURT: You've now sent them to You "Well written," correct? Objection. What's your objection? Hearsay. Well -Relevance of this particular -It's been admitted, but not for the 18 purposes -- not for the truth of the matter asserted, so I'm 19 overruling your objection. 20 BY MR. EASTEPP 21 Q 22 That's what the question is. 23 A Yes. 24 Q So you're -- you agree you're being complimented for work 25 that Wayne Ball helped you do. You agree with me those are the words that are on here. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 33 of 311 622 1 A Yes. 2 Q You recall me yesterday asking you questions whether you 3 ever used terms like, "I'm going to go get some face time with 4 Gene"? 5 A I don't. 6 Q You don't recall me asking that? 7 A Oh, I recall you asking me. 8 Q Okay. 9 A I don't recall using it, sir. 10 Q Here's an email dated 7/22. 11 Agent Healey to you? 12 A Yes. 13 Q Do you see in the middle of the page the one that's dated 14 at -- timed at 8:15 a.m. on that date? 15 A Correct. 16 Q Were you telling him that you're going to do your gov trip 17 and get face time with Gene? 18 A That's correct. 19 Q So it is a term you use? 20 A Yes, now it is. 21 Q That meant you were going to go to McAllen, sit in front of 22 him and let him know you're doing your job; get some time with 23 your supervisor sort of thing, right, is what that means? 24 A So he can see us. 25 Q It's not a put down. Do you recall that? I don't recall saying it. That was not a term you thought you would use? Do you see that from Special It's a whole series. I can recall. It's just a phraseology. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 34 of 311 623 1 A Yeah. No, it's not a put down. 2 Q Right, and that's just the point. 3 that you said you didn't go to McAllen very often, including 4 maybe one time in the month of August, you said? 5 A 6 paperwork. 7 came back from a trip, so I had to go and submit the paperwork 8 to get reimbursed. 9 Q But we talked yesterday I also said that I would go over there for administrative On this particular case, gov trip, that means I just So there was a reason why I went over there. Here's one dated July the 8th from Mr. Pedraza to you with 10 an investigation. And it just -- as you can see, "When you get 11 a chance, take a look at the case." At this particular point in time, would you and Special 12 13 Agent Healey get a lot of email traffic from Special Agent in 14 Charge Pedraza? 15 A Can you put that back? 16 Q And he's simply just asking you about one of your cases? 17 A No. 18 Q What is it then? 19 A It appears to me there that he opened up a new case that had 20 not been assigned to me yet, and he was just letting me know 21 through an email there's a new case that's been assigned to you. 22 Take a look at it. 23 Q 24 were assigned this particular area, correct? 25 A Okay. Which occurred pretty frequently once you and Kris Healey Safe to say, yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 35 of 311 624 1 Q And most of the time the emails came both to you and Kris 2 Healey together with the new report. 3 FYI and would have the JIC report. 4 A No, sir. 5 Q You don't recall that? 6 A I don't recall whether or not -- I mean, for example, he 7 sent that to me, but I don't recall whether or not he sent a 8 copy to Agent Healey for all of them. 9 Q And all it would say was Do you recall that? I didn't mean that particular one. It was very common, was 10 it not, once y'all had this area and were in charge, meaning you 11 and Kris Healey were getting the cases from down here in this 12 county or this area, that he would forward the new cases to 13 y'all via email and would have copied both y'all on it? 14 A I'm sure -- I'm sure that took place. 15 Q Here's one dated July 26th at 2011 from Ms. Hinojosa. 16 remind us, remind the jury who she is. 17 A She's our administrative officer in the McAllen office. 18 Q This is to you. 19 Clearly seems to indicate, as most people would do with 20 something like this, with a lot of question marks, like not sure 21 this is the right one. 22 do that? 23 A Sure, yes. 24 Q It's a -- again, it's a document. 25 signature page first, this tells us is this an AROI or an ROI? It makes sense. And You see the subject says, "How's this?" Would you agree that that's why people Would you agree? And if we look at the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 36 of 311 625 1 Can you tell? 2 A I believe it's an AROI. 3 Q Okay. 4 one that has Marco Rodriguez's name. 5 situation and why she would have sent you this? 6 A What was the date on that? 7 Q I hit the power button. If we look at the bottom on this, she's sending you Do you recall this Let it come back up. The date on the email or the date on -- 8 9 A Yes, the date on the email. 10 Q July 26th. 11 A I don't remember why she would have sent me that. 12 Q But again, you could have put this in your computer because 13 it's coming to you as a word processing document, and you would 14 have then had a document with Marco Rodriguez's name in the 15 block, so if you wanted to change it or whatever, you would have 16 access to that? 17 A Yes. 18 Q If I didn't ask you yesterday on the subject of Marco 19 Rodriguez, he had nothing to do with the events of September 20 the 1st in regard to you and Wayne Ball and Gene Pedraza and the 21 conference room situation, did he? 22 A No. 23 Q Okay. 24 Ball to you. 25 A Yes. Here's one that's July 29th, 9:15 a.m. from Wayne Do you see that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 37 of 311 626 1 Q Has two documents attached, correct? 2 A Correct. 3 Q But no email traffic, meaning apparently this is another one 4 where he's just sending you documents. 5 A Yes. 6 Q And the first one, this is a -- an ROI, correct? 7 A Yes. 8 Q It has your name on it, correct? 9 A Yes, it does. 10 Q And would it be typical that underneath ROIs, there would be 11 MOAs? 12 A How so? 13 Q Right. 14 A When you submit the case for closing? 15 Q As an attachment, is the better way to say it. 16 A Yes. 17 Q Okay. 18 This is not in final form, would you agree? 19 A Yes. 20 Q And is that typically the way you would get these back from 21 Special Agent Pedraza? 22 A Yes. 23 Q So that you could actually see what he had done in the 24 editing process, correct? 25 A Do you agree with that? What do you mean, behind them? And on this one we see the attachment. Correct. You see it? These are edits? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 38 of 311 627 1 Q Versus him just flat out changing it and sending it to you 2 as a new document. 3 new edits, correct? 4 A Right. 5 Q This one again has got your name on the bottom, correct? He left the edit, your old words with his MR. COONEY: 6 7 record here. 8 from Agent Pedraza. There's a misstatement of the I believe that email came from Agent Ball, not MR. EASTEPP: 9 Objection. Right. Right. 10 BY MR. EASTEPP: 11 Q 12 be -- and the next email is -- As I said, it's coming from Wayne Ball. MR. COONEY: 13 But it appeared to But that -- just for the record, that last 14 one was -- the 7/29/2011 email was an email from Agent Ball to 15 Agent Vargas. MR. EASTEPP: 16 Right, and that's correct. That's what -- 17 BY MR. EASTEPP 18 Q 19 little later? 20 here? 21 A Yes. 22 Q "See edits and suggestions." 23 you would see in an email coming back to you from him? 24 A Yes. 25 Q And, in fact, if we look at the underneath, emails are -- The next from Special Agent Pedraza to you, correct, a You recognize the same case or the same name Was that a very typical thing Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 39 of 311 628 1 the first one is the latest one, and the earlier ones are under 2 it. 3 correct, because you're telling him an AROI will follow shortly? 4 A Yes. 5 Q Which we see is this edited document, correct? 6 showing -- he struck a whole lot of this, correct, coming back 7 to you? 8 A Yes. 9 Q All these editings. But this one shows how -- have you sent something to him, This is He's even left an editor's mark about 10 formatting to the left. Would it be typical that he would also 11 suggest some language to you in the editing process on an MOA 12 that he's editing? 13 language? 14 A Yes. 15 Q Do you recall Special Agent Ball assisting you in this 16 particular case that is noted on here? 17 A Yes. 18 Q And was that again in this relationship you've already 19 described for us? 20 A Yes. 21 Q Okay. 22 co-assigned to the case or assigned to help you out. 23 remember if it was informally helping you out, or was he 24 formally assigned to help you out? 25 A In addition to striking, it recommending Meaning, as I understand it, he might have also been I would say formal. Do you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 40 of 311 629 1 Q Okay. Again, 8/22 at 1:20. This is coming from Special 2 Agent Pedraza to you. 3 correct? 4 A Correct. 5 Q If we look at the MOA under it, again, it appears to show 6 some extensive editing, correct? 7 A Yes. 8 Q Again with strikes and recommended language? 9 A Yes. 10 Q It continues on to -- has a second page, but simply shows 11 edit, correct? 12 A Correct. 13 Q Again, that's very common? 14 A Yes. 15 Q Now, September the 2nd. 16 conference room and from the Government's exhibit yesterday, it 17 appears you sent the MOAs you were talking about to Special 18 Agent Pedraza at almost 5:00 on the 1st. 19 A Yes. 20 Q And I assume, as you I think you testified, you did that in 21 the conference room from a computer before you went back home or 22 back to Brownsville? 23 A Yes. 24 Q That evening, okay? 25 A Yes. Again, it's just a "see edits" example, Going back to the events in the Does that sound right? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 41 of 311 630 1 Q So you didn't get them back that evening from him, at least 2 from the exhibits. 3 A Yes. 4 Q So the next day, the next morning 9:25 -- it's 9/2/2011, 5 9:25. 6 A Yes. 7 Q From Special Agent Pedraza to you. 8 A Good to go. 9 Q And what does -- explain. You got them back at a later time, correct? Do you see that? What does GTG mean? In Special Agent Pedraza's 10 language in sending something like this to an agent like you, 11 what would that have meant? 12 A 13 MOA, memorandum of activity. 14 he made changes to it, he took -- he took a look at it. 15 liked it. 16 Q Good to go. 17 A Good to go. 18 Q Meaning print, sign, file. 19 A Print, yes. 20 Q And then sign. 21 A Yeah. 22 Q Or the agent is going to sign it, the supervisor is going to 23 sign it, and it's going to make its way into a file. 24 A Right. 25 Q I was just trying to do it real short. Finalize it. For example, that attachment there, it's an Finalize it. I sent it to him. Whether or not He That's what GTG meant. Agree with that? You're going to sign. Print, sign, file? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 42 of 311 631 1 A Right. 2 Q So then we look at the MOA under it. 3 name. 4 A Okay. 5 Q So this is at the beginning of the workday after you've sent 6 the others at the end of the workday. 7 can see is not the Manny Peña case, correct? 8 case. 9 A Could you keep it up so I can read it? 10 Q Yes, sir. 11 A Could you move it up, please? 12 Q I mean the question simply was this is a different case. 13 A Yes. 14 Q Right? 15 on that? 16 A No. 17 Q Ten five. 18 at 10:14 a.m. from him to you. 19 complaint. 20 A Yes. 21 Q And again, just what the words are, it just says, "No rush. 22 When you get back, call me." 23 A Yes. 24 Q And as we see, it's got your name from him, correct? 25 A Correct. It's got Wayne Ball's And this, in fact, you It's a different Okay. Do you recall why Wayne Ball's name would have been So it's after the events of the conference room It's got some receipt of That means that's a new case? Was that a very typical thing? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 43 of 311 632 1 Q Then you see there are three docs assigned. 2 second document. 3 A Yes. 4 Q 1315 case. 5 is a Wayne Ball -- 6 A Correct. 7 Q -- document. 8 it's the same case at the top. 9 the three documents attached have his name, not yours. It has database checks. We go to the Do you see that? And if we go to the bottom, we see again, this And then the second document, again you see Again, Wayne Ball. So two of Do you 10 recall why that would have been? 11 A I have an idea why his name is on there. 12 Q What is it? 13 A When I first got to -- to that office, of course, I reached 14 out to Wayne Ball primarily for assistance. 15 templates and examples of AROIs from Agent Ball. 16 point where I felt comfortable -- more than likely, it was once 17 I was in Brownsville and working with Agent Healey and we put 18 our minds together where I stopped asking Agent Ball for as much 19 assistance as he was providing me. 20 I received It was at some What more than likely took place with this is on 21 September 1st, the templates that I had that had my names on 22 them on the signature block, those were my templates that I had 23 been using since I had been working in Brownsville and doing 24 things with Agent Healey. 25 records, I changed the signature block that I was using for After I was ordered to falsify these Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 44 of 311 633 1 myself to Agent Ball. Mind you, I was troubled and bothered by what I was ordered 2 3 to do. 4 what I was going to do. 5 for the inspection to include these. 6 with what I was ordered to do, get these cases cleaned up, I'm 7 fairly sure that I forgot to remove Agent Ball's name from the 8 signature block to mine. 9 to falsify the records that I was asked to that Wayne Ball was 10 I wasn't happy with the whole situation, worried about We were still cleaning up other cases In the midst of my mind And again, I removed my name primarily supposed to sign. So after that was done, I was still cleaning up the other 11 12 cases. I'm sure I forgot to change his signature block back to 13 mine. 14 Q 15 had Wayne Ball's name on it for an MOA after September the 1st? 16 A 17 I changed them after September 1st when I was asked to do that 18 in the conference room. 19 Q 20 after 9/1 you were sending had Wayne Ball's name on it? 21 A I don't know about every, but the ones you presented to me. 22 Q Well, if it's still on there on 10/5 under this long 23 explanation you just gave would mean that everything up to then 24 had never been changed. 25 back to Robert Vargas say on September 12th, then we wouldn't So the only form you're telling me you had in your computer No, they had my name on them initially. They had my name. So every MOA -- that's a month later, 10/5. So every MOA Because if you would have changed it Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 45 of 311 634 1 see it again on the 5th of October, correct? 2 A 3 done, I didn't work on any of the cases. 4 away from me. 5 probably a month where I didn't do any MOAs. 6 a lot of the things of the cases that I have wrote in 7 preparation for the inspection. 8 Q 9 would have left Wayne Ball's name on other documents? After I reported this to the inspectors after all this was The cases were taken So there was a -- there was a large gap there, And I forgot about So you were so not paying attention to your work that you 10 A 11 removed from me. 12 was going to take place. 13 Q 14 presented it with his name on it. 15 A 16 It's just logical. I was concerned and confused for my career. Cases had been As far as I was concerned, I didn't know what And obviously it wasn't removed on 10/5 because you Because I forgot -MR. COONEY: Objection. Your Honor, just for the jury's 17 benefit, can we put the exhibit back on to show the date that 18 Mr. Vargas sent the email? 19 THE COURT: 20 MR. COONEY: If you need to, put it up there. For the jury's benefit, can we just scroll 21 down so they can see the date that Mr. Vargas sent the email to 22 Agent Pedraza? 23 THE COURT: 24 MR. COONEY: 25 You can. Just show the complete exhibit. the complete document. We have Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 46 of 311 635 MR. EASTEPP: 1 2 email. 3 mind it being shown. I've printed one capture of the They have what appears to be more of the email. MR. COONEY: 4 Right. I don't That's not an issue. We just want to show -- this email shows 5 the date that the defendant sent the email back to Mr. Vargas. 6 There are questions being asked assuming that Mr. Vargas sent it 7 on 10/5/2011. 8 THE COURT: 9 provide it to Mr. Eastepp. MR. COONEY: 10 Well, if you have it, then why don't you Thank you. And so we -- just for the record, the complete exhibit shows 11 12 an email from Mr. Vargas to the defendant containing those 13 attachments on September 7, 2011. THE COURT: 14 That's all. Go ahead, Mr. Eastepp. 15 BY MR. EASTEPP 16 Q 17 to -- this is on 9/6, so it's just a few days after. 18 8:54 a.m. 19 A Yes. 20 Q It just says, "You may need to change the title." 21 it that's just probably an editing comment? 22 A Yes. 23 Q And it shows underneath that you've sent it to him on the 24 2nd, correct? 25 A Sorry. That was a little out of sequence. It's an MOA. Correct. Let me go back 9/6/2011, Do you see that? You take Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 47 of 311 636 1 Q And again, it's a different case than Manny Peña, but you 2 see Special Agent Ball's name. 3 Jody Warren's name, correct? 4 A Correct. 5 Q Which would tell you somebody -- if this was the form as you 6 described it that answered -- that caused us to show this other 7 email, that this would mean you've had to at least edit out Gene 8 Pedraza's name and put William Warren's, you agree, if you're 9 using the form from the day before? Except on this one, it's got 10 A Correct. 11 Q But you left clearly then Wayne Ball's name. And later on 9/6, 10:53, again it's a document. 12 It's coming 13 back to you with edits. Do you see that? 14 A Yes. 15 Q This one shows it's actually come to him on the same day. 16 Do you agree? 17 A Yes. 18 Q With what appears to be like an editing comment from you. 19 "Disregard the last one. 20 A Correct. 21 Q That tell you you've sent one and caught your own error. 22 Now you've made your own edit. 23 A Sounds like. 24 Q Pretty common. 25 right? This is a good one." You're sending him a fresh one? It shows you were paying attention actually, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 48 of 311 637 1 A It appears. 2 Q And again, it's not the Manny Peña case. 3 Wayne Ball's name. 4 Pedraza. 5 A Yes. 6 Q And one more. 7 Special Agent Pedraza to you and to Kris Healey. 8 that? 9 A Yes. 10 Q Okay. 11 correct? 12 A It appears to be. 13 Q And you see this is an example. 14 A Yes. 15 Q Do you remember -- do you know who Julie Spetz is? 16 recall that name? 17 A Yes. 18 Q Was she a headquarters person? 19 A I believe so. 20 Q And this one you see that this came to, you see Special 21 Agent Pedraza and Special Agent Beauchamp. 22 A Correct. 23 Q And this would have been after the realignment, correct? 24 A Yes. 25 Q So Beauchamp is the regional SAC. And this one has And again, this one is back to Special Agent Do you see that? 10/14/2011, 3:44. Do you see this? From Do you see This, in fact, is related to the Manny Peña file, It's a PDF document. Do you Gene Pedraza is now the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 49 of 311 638 1 associate SAC. 2 A Correct. 3 Q And under it, do you recognize this kind of form, meaning as 4 a form of the agency? 5 A Yes. 6 Q And it just gives a synopsis of what's going on, really 7 telling us that the FBI is involved in this investigation. 8 in summary, that's all I'm -- the point I'm trying to make. 9 A Yes. 10 Q And there are a couple more pages, but that -- one of them 11 actually has nothing on it. 12 from headquarters like that before? 13 A No. 14 Q Do you know why headquarters would have been sending this 15 about the Manny Peña file to you or to Special Agent Beauchamp 16 and Special Agent Pedraza who then, of course, forwarded it to 17 you? 18 A No. 19 Q Do you recall if you responded back to Julie Spetz or 20 anybody at headquarters about: 21 case. 22 A No. 23 Q Okay. 24 point? 25 A Just But had you seen documents coming I don't recall. Hey, there's a problem with this I falsified some documents in it. No. And you certainly had not told the FBI that at that Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 50 of 311 639 1 Q Now, where I left off with the sequence of events. After 2 these Ryan phone calls and the Frost meeting and all of that 3 through the fall of 2011, you're still an agent in Brownsville, 4 correct? 5 A Yes. 6 Q Working cases, correct? 7 A Yes. 8 Q Do you recall the first time the FBI came to talk to you 9 about these events? 10 A Yes. 11 Q And do you remember when that was? 12 A In January 2011. 13 Q You think it was that early? 14 A I believe it was in January 2012. 15 Q That's your memory? 16 A Yes. 17 Q And who is it that first approached you? 18 A Freddy Vela and Bob Krupa. 19 Q Did you know Freddy Vela? 20 A No. 21 Q He's a long time Brownsville FBI agent, but you had never 22 met him? 23 A That's correct, I've never met him. 24 Q Not going into what they said, but where did they come -- 25 where did you have a meeting with them, or how did it come Or '12, excuse me. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 51 of 311 640 1 about? 2 A 3 Brownsville -- Brownsville assigned FBI agents in the 4 Brownsville FBI office unrelated to this. 5 them. 6 about to depart the Brownsville FBI office. 7 Brownsville FBI agents, Ryan Flint, told me that there were some 8 agents from San Antonio that needed to speak to me. 9 Q And Ryan Flint is a local Brownsville FBI agent? 10 A That's correct. 11 Q Did you know Ryan? 12 A I did. 13 Q He's been here for a while too, has he not? 14 A Yes. 15 Q Okay. 16 that they wanted to see you? 17 A No. 18 Q What happened next? 19 A So I asked -- once he told me -- he said agents from San 20 Antonio wanted to see me. 21 don't know." 22 FBI." Agent Healey and myself were -- we had a meeting with We sat down with We discussed what we had to discuss. We stood up, were One of the Did you know what the subject matter generally was I said, "For what?" He said, "I I said, "Agents from what agency?" I said, "Really?" He said, "The He's like, "Yes." 23 "Bring them in." 24 So he walked out, and then Freddy Vela came in and Bob Krupa 25 came in, and I believe it was an attorney from Department of Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 52 of 311 641 1 Justice that came in with them. 2 Q Who was that? 3 A Tim. 4 Q It was Tim Kelly. 5 A Yes, sir. 6 Q Did Special Agent Healey leave the room? 7 A Yes. 8 Q So it was just those three gentlemen and you left? 9 A Yes. I don't remember his last name. 10 MR. EASTEPP: 11 THE COURT: 12 MR. EASTEPP: 13 THE COURT: Does that sound right? May I have a moment, Your Honor? You may. Can I approach? (Nod indicated.) 14 BY MR. EASTEPP: 15 Q 16 recognize that your name is at the top of that? 17 A Yes. 18 Q Do you see the date highlighted at the bottom? 19 A Yes. 20 Q After seeing this, is your memory refreshed when the actual 21 date might have been where this meeting you're about to describe 22 occurred? 23 A Yes. 24 Q When was that? 25 A January 25th, 2012. I want to show you -- read this to yourself. Did you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 53 of 311 642 1 Q 2 quickly what the purpose of the meeting was about? 3 A Yes, sir. 4 Q And the purpose of the meeting was clearly about the MOA 5 situation from September the 1st, correct? 6 A The inspection, yes, sir. 7 Q Of the three, who was taking the lead in speaking with you? 8 A Freddy Vela. 9 Q Were y'all seated? 10 A Yes, sir. 11 Q How long did that meeting last? 12 A Approximately 15 minutes. 13 Q Would it be fair to say that you got pretty angry at them 14 for confronting you? 15 A I was not happy. 16 Q And why were you not happy? 17 A Because I asked them specific questions and -- and I wasn't 18 getting the answers that I wanted. 19 a witch hunt. 20 Q 21 your mouth? 22 A 23 about what transpired in the inspection with regard to what you 24 reported. 25 So in this meeting, was it generally made known pretty And I felt that they were on What was the question you had, the words that came out of When they asked me -- first they said we want to talk to you I asked them, "For what?" MR. COONEY: They said -- Objection, hearsay. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 54 of 311 643 THE COURT: 1 Sustained. Don't -- don't repeat anything 2 you've been told. 3 BY MR. EASTEPP 4 Q Again, what were your concerns, was my question. 5 A I asked them the number one thing that I wanted to know. 6 asked them, "Is this a criminal case?" 7 Q And I'm assuming you got an affirmative response to that? 8 A No, I did not. 9 Q Did you get any response that was satisfactory to you? 10 A They said, "It depends on what you're going to say." 11 responded by saying, "Well, obviously something -- well, 12 obviously you guys know what this is about. 13 victim, a witness? 14 Q Why would you have asked that question? 15 A Because again, we had no trust with the FBI. 16 Q Who's "we"? 17 A The OIG. 18 FBI until after Kirk Beauchamp and Dave Green arrived and they 19 were trying to build bridges with them. 20 Q Okay. 21 A In any case, it was important to me, No. 1, whether or not 22 it was a criminal case. 23 going to say." 24 25 I And I Am I going to be a What am I going to be?" Let me stop you. I never -- Who is the "we" in that? We never had a good working relationship with the In any case -- They said, "It depends on what you're "Well, obviously you guys already have an idea of what took place. Do you think I'm going to be a witness or a victim?" Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 55 of 311 644 1 Q Did you get -- 2 A And they told me -- 3 MR. COONEY: 4 THE WITNESS: 5 BY MR. EASTEPP 6 Q Objection. I'm sorry. Did you get a satisfactory answer to that? 7 THE COURT: 8 THE WITNESS: 9 Objection. Don't repeat the contents of conversations. I apologize. BY MR. EASTEPP 10 Q Again, did you get, to your own -- in your mind, your own 11 satisfaction, a good answer to that? 12 A No. 13 Q What did you do once you became unsatisfied? 14 A I told them that I had already reported the incident to my 15 agency and they've already taken action, and I didn't feel 16 comfortable talking to them, and I was wasn't going to put my 17 career on the line again, especially to the FBI. 18 responses to that. 19 here and tell you guys anything until I talk to my agency," at 20 which point Bob Krupa walked out, and then he came -- okay. 21 I'll take this back. There was some I told them, I said, "I'm not going to sit The initial conversation began with just Freddy Vela and Bob 22 23 Krupa. After I refused and I told them that I -- 24 Q 25 Mr. Kelly, the lawyer, was not in the room initially is what you Let me stop you just a second. I know where you're headed. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 56 of 311 645 1 mean? 2 A Yes, sir. 3 Q All right. 4 A So at some point in that conversation when I made it clear 5 to them that I was not going to put my career on the line again 6 to the FBI, especially with the working relationship we had, I 7 told them that -- plus I wanted to consult with my agency first. I apologize. No problem. There was a transaction of conversations there. 8 9 I correct myself. We went back and forth. 10 Q Then what happened? 11 A And then Bob Krupa walked out. 12 Bob Krupa walked back in with the attorney from DOJ. 13 Q Freddy Vela stayed there. And I assume introductions are made. "Hi, I'm Tim Kelly." "Hi, I'm Robert Vargas." 14 15 A Mr. Kelly, Tim identifies himself to me, tells me where he 16 works. 17 explains to me what it is they do. 18 Q Because it's out of Washington, correct? 19 A Yes, sir. 20 and Freddy Vela. 21 Q 22 okay? 23 about it? 24 said back to you. 25 A I told him I had never heard of that branch. He And I reiterate to him exactly what I told Krupa I'm not -- I do not want you to say anything Mr. Kelly said, Whatever he responded, were you satisfied with it, angry Just tell me what you thought about whatever it is he I was frustrated. I was frustrated because I thought this Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 57 of 311 646 1 was all behind us. They brought Kirk Beauchamp in. 2 doing a great job. Dave Green was playing a big role. 3 moving forward. 4 up and it's resurfacing again. We put everything behind us. He was We were And then they pop And by all means, if they would have told me this was a 5 6 criminal case, I would have cooperated. I would have sat there 7 and told them everything they wanted. 8 satisfied with the -- with what they told me, and I wasn't going 9 to put my career on the line again with the FBI. However, I wasn't And I made 10 that clear to all three of them in that room, and I was -- I 11 made it clear to them that I was going to -- I can't tell you -- 12 I can't discuss what they said, but that conversation ended with 13 me saying after that I was going to contact my agency and let 14 them know what just transpired. 15 Q And did you terminate the meeting? 16 A Yes. 17 Q You understood the FBI investigates crimes and not admin 18 matters, right? 19 A Yes. 20 Q And you understood, I assume, whatever it is Mr. Kelly said, 21 without going into it, you certainly knew that he worked for the 22 Department of Justice, which is a prosecuting arm of the 23 government? 24 A Yes, after he explained that to me. 25 Q Right. Do you recall the next time you had contact with the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 58 of 311 647 1 agents, the FBI agents? 2 A Agent Vela called me that same evening. 3 Q Okay. 4 A Yes. 5 Q By this time, had the issue of immunity or we're really not 6 after you or whatever, had that come up? 7 A 8 I know that the -- the main focus was -- the main focus was that 9 I didn't want to put myself back on the bull's eye of my agency And did you have a conversation with him? He called me. I don't remember the exact details of what we discussed, but 10 again. And I told -- I explained that to Agent Vela. I told 11 him, I said, "Listen. 12 cooperate and I'll give my story, but I'm not going to give it 13 to you guys." 14 told him, I said, "Nothing personal. 15 I'm just -- this is everything to do with the FBI." If this is a criminal case, I'll And he and I both understood what that meant. I I don't know who you are. I said, "Now, we've" -- we were both -- I knew that by 16 17 saying that if this was a criminal case, that I would get a 18 subpoena, and I explained that to him. 19 to a grand jury that is not biased and would listen to my story 20 instead of the FBI who doesn't care for our agency. 21 I still didn't tell him anything. 22 Q 23 not after you. 24 you recall any of that coming up? 25 I'd rather give my story We agreed. But at that point, was it the discussion that, hey, we're You're going to get immunity, any of that? MR. COONEY: Objection, asked and answered. Do Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 59 of 311 648 1 THE COURT: You can answer it one more time. 2 THE WITNESS: I don't remember whether or not we 3 discussed that. It was -- sir, the conversation was more he was 4 convincing me to talk to them again. 5 to do. 6 him as well that I had already contacted my agency. 7 BY MR. EASTEPP: 8 Q 9 at that point, you understood that, hey, what a big deal it is That's what he wanted me I told him I wasn't going to talk to him. I informed Well, as somebody who's been a cop for well over ten years 10 to be told: We're not after you. We're not going to prosecute 11 you. 12 A I don't remember if he even said that to me. 13 Q Would it have been a concern of yours? 14 A I don't recall exactly what I was feeling during that phone 15 call. 16 FBI about what took place. 17 They took action, and I was adamant. 18 conversation was about. 19 Q 20 you had committed unethical acts versus illegal acts? 21 A No. 22 Q You don't remember that? 23 A No, sir. 24 Q You don't remember making any statements, you making 25 statements? We want somebody else. I was just adamant that I was not going to talk to the I had already reported to my agency. That's what the Do you remember whether there was any conversations whether Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 60 of 311 649 1 A No, because that never came up because I never told them 2 what happened. 3 Q You don't remember talking to Freddy Vela about that at all? 4 A No. 5 because I didn't tell him what had happened as far as my role. 6 Q You understand agents write stuff down, don't you? 7 A I do. 8 Q Including the FBI? 9 A I do. 10 Q But you don't recall any of that in any conversation with 11 Freddy Vela at that time? 12 A I don't recall us discussing that. 13 Q How quickly -- or it's after that you go to the grand jury, 14 correct? 15 A Yes, sir. 16 Q And after you give them testimony, that's when you're told 17 you're not going to be prosecuted. 18 immunity, correct? 19 A I don't remember whether or not it was there or not. 20 Q Okay. 21 grand jury? 22 A No. 23 Q So you were immunized after you went to the grand jury? 24 A Yes, I believe so. 25 Q And after you went to the grand jury -- And I don't understand why we would discuss that We're going to give you full So you may have been immunized before you went to the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 61 of 311 650 1 MR. COONEY: 2 THE COURT: 3 (At the bench) 4 MR. COONEY: Objection, Your Honor. May we approach? Yes. I'm not trying to get too technical here 5 when we haven't gotten in on this, but it's starting to get a 6 little bit confusing. 7 immunity and a non-prosecution agreement. 8 say everything, and it will not be used against you. 9 assured that. 10 11 There is an important distinction between Immunity is you can You are Government may not make derivative or direct use of your statements. He has not been provided immunity. He's been provided a 12 pledge that he will not be prosecuted if he tells the truth. 13 he fails to tell the truth, all of this can be used against him. 14 And apart from that, everything that he has said and today can 15 be derivatively used. 16 17 18 THE COURT: Well, I mean, you can bring that up on cross, but -MR. COONEY: I just feel like that there is a -- there 19 is a distinction here, and I don't want to be misleading the 20 jury about it. 21 If THE COURT: Well, there may be a distinction, but the 22 jury is not going to care about that distinction. 23 to bring it up on cross, I'll let you do it, but it's going to 24 go right over the jury's head. 25 MR. COONEY: Okay. Fair enough. If you want Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 62 of 311 651 1 (Open court) THE COURT: 2 3 don't we take a break. 4 THE COURT: A little quicker than my normal break time, MR. EASTEPP: the government. 10 And I'm about to pass him, and I informed It will be shortly after the break. THE COURT: 9 Okay. Great. (Recess taken from 10:07 to 10:22.) THE COURT: 11 12 Take about ten minutes. but one of the jurors was indicating they needed a break. 7 8 While we're breaking, why (Jury leaves courtroom) 5 6 Tell you what. All right. Are we ready for the jury? Have them join us, please. 13 (Jury enters courtroom) THE COURT: 14 All right. Be seated. Go ahead, Mr. Eastepp. 15 MR. EASTEPP: 16 Yes, Judge. 17 BY MR. EASTEPP 18 Q 19 February 10th, 2012, you testified in the grand jury. 20 A Correct. 21 Q Yesterday we talked about you went to Houston, Texas, and 22 met at the FBI office and went over your grand jury testimony? 23 A Yes, sir. 24 Q And there were some other meetings around that time period 25 too, correct, be it telephonic or in person? Go back to the sequence of events very quickly. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 63 of 311 652 1 A Yes. Following the meeting in Houston, yes, sir. 2 Q And do you remember having a meeting here in Brownsville on 3 June 27th of 2012? 4 A Yes, sir, I do. 5 Q And do you remember the purpose of that meeting or what 6 occurred at that meeting? 7 A Yes, sir. 8 Q And what occurred? 9 A I contacted Agent Vela after the Houston meeting. I just can't recall. There was 10 a reason for it. There were some concerns 11 that came up, and I called him and asked him specifically, "What 12 is my role in this?" 13 Q And by that question, define what you meant as role. 14 A I said, "Am I still -- am I a witness in this or victim, or 15 what am I?" 16 Q 17 that? 18 A Yes. 19 Q Did that -- the result after that -- was that on the 20 telephone? 21 A Yes, sir. 22 Q Okay. 23 A Yes, sir. 24 Q And who was in the meeting? 25 A Agent Vela, Freddy Vela, Tim. And -- Without going to into what he said, did you get an answer to Did that lead to a meeting? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 64 of 311 653 1 Q 2 mentioned earlier? 3 A Yes. 4 Q And who was Eric Gibson as he was introduced to you? 5 A He was an attorney for the Department of Justice, same -- 6 same people. 7 Q 8 working on the case together? 9 A Yes, sir. 10 Q So it's them with Special Agent Vela? 11 A Yes, sir. 12 Q Here at the Brownsville FBI office? 13 A Yes, sir. 14 Q And is that the day -- you've asked the question about your 15 status. 16 prosecuted? 17 A Yes, sir. 18 Q What did you understand the terms to be? 19 A It was explained to me that I could get something in writing 20 if I wanted it. 21 However, if I wanted it in writing, I would have to obtain an 22 attorney to verify what I was receiving. 23 Tim Kelly, the same Department of Justice lawyer you And Eric Gibson, I believe. Was it your understanding Mr. Kelly and Mr. Gibson were Is that the day you're told you're not going to be You've got -- is that right? However -- and I've testified to this before. I made it clear to Agent Vela that I was not going to get an 24 attorney based off of what you were telling me. 25 was discussed there in that meeting. So that's what I told them I'm not going Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 65 of 311 654 1 to get an attorney, so I'm not going to get anything in writing. 2 And they discussed everything verbally. 3 say the truth and if nothing came up to contradict what I was 4 saying, then I would remain under the same status that I was 5 under. 6 Q And you had to be thrilled by that, correct? 7 A No, because I was under the impression -- that impression 8 the entire time. 9 meetings that -- prior to this were -- were for this. And if I continue to I just wanted clarification. Because the It was -- 10 we never had a sit down as we did there with regards to my 11 status. 12 Q Still -- 13 A So thrilled -- I wouldn't say I was thrilled. 14 wasn't surprised. 15 Q 16 telling you to turn around and put your hands behind your back. 17 I'm going to put handcuffs on you, correct? 18 A Yeah. That would have made me thrilled. 19 Q Yeah. Right, that would have made you thrilled. 20 understand. I mean, I I just wanted to get confirmation. It was better than the other option of Special Agent Vela I And from that moment on, you just had to keep telling them 21 22 what you had been telling them, correct? 23 A Correct. 24 Q And things like you and Gene Pedraza sitting in a conference 25 room where there's just two of you in there, that's just what Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 66 of 311 655 1 you say and what he would be around to say, meaning there's 2 nobody else to that conversation, correct? 3 A During what conversation? 4 Q The one in the conference room at the beginning. 5 you and Gene Pedraza, right? 6 A And Wayne Ball. 7 Q In the beginning, it was just you and Gene Pedraza. 8 A Yes. 9 Q And so as long as you keep saying: It's just Well, in that 10 conversation he asked me to commit a crime, you're not going to 11 get prosecuted, correct? 12 A 13 truth, if nothing came out to contradict what I was being -- 14 what I was telling them, I would be okay. 15 Q 16 conversation, correct? If I continued to say what I was saying, which was the The point is there's not a tape recording of that MR. COONEY: 17 Objection. What conversation? 18 BY MR. EASTEPP 19 Q In the conference room on September the 1st. 20 A No. 21 Q So it's only your memory of the events that you have 22 available to tell anybody. 23 A Yes. 24 Q You didn't take notes, anything. 25 later. Not that I'm aware of, no. You agree with that? Now, MOAs are created But as to the words being said from Gene Pedraza to you, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 67 of 311 656 1 this is all just coming from your memory? 2 A Yes. 3 Q So as long as you keep saying your memory is he said these 4 things to you, you're not going to be prosecuted? 5 A Yes. MR. EASTEPP: 6 Pass the witness. REDIRECT EXAMINATION 7 8 BY MR. COONEY 9 Q Mr. Vargas, this won't take long. Is it your understanding under the terms of the 10 11 non-prosecution agreement that you have to keep saying what 12 you're saying or that you have to tell the truth in order to not 13 be prosecuted? 14 A Tell the truth. 15 Q Have you been telling the truth since your first meeting 16 with prosecutors back in 2012? MR. EASTEPP: 17 18 Judge, I object. It's leading and bolstering. THE COURT: 19 Overruled. 20 BY MR. COONEY 21 Q You can answer the question. 22 A Ask me the question again. 23 Q Have you been telling the truth since your first meeting 24 with prosecutors back in 2012 up until today? 25 A I've been telling the truth from the very beginning up to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 68 of 311 657 1 the day I told Izzard. 2 Q 3 through with you, do you recall going through these emails with 4 him just here on cross-examination? 5 A Yes. 6 Q Do any of these emails have anything to do with the 7 defendant's instruction to you to falsify documents? 8 A No. 9 Q When you received the phone call in 2012 from John Ryan that The emails, Defense Exhibit No. 7 that Mr. Eastepp went 10 you were asked about on cross-examination, do you remember being 11 asked those questions? 12 A 13 recall -- 14 Q The phone call with John Ryan -- 15 A Okay. 16 Q -- that Mr. Eastepp asked you questions about. 17 A Okay. 18 Q During that phone conversation, did you tell Mr. Ryan about 19 what occurred in the conference room on September 1, 2011? 20 A Yes. 21 Q Did you deny falsifying documents to Mr. Ryan? 22 A No. 23 Q Did you deny that the defendant had instructed you to 24 falsify documents to Mr. Ryan? 25 A I believe the call was in -- I don't think it was in '12. No. I Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 69 of 311 658 1 Q Mr. Vargas, do you have any doubt whatsoever that on 2 September 1, 2011, the defendant instructed you to falsify 3 memoranda of activity? 4 A No. 5 MR. COONEY: 6 MR. EASTEPP: 7 Judge, may we approach? (At the bench) MR. EASTEPP: 8 9 No further questions, Your Honor. Over the government's objection, I very carefully asked questions about that phone call with John Ryan 10 and stayed away from the content of it. 11 asked a long series about this denial. 12 of Defense Exhibit 17, the Ryan report, based on that series of 13 questions. 14 THE COURT: Okay. 15 MR. EASTEPP: Mr. Cooney has now I move for the admission I'm going to deny it. Can I ask any questions of him about it 16 based on that series of -- 17 THE COURT: 18 MR. EASTEPP: What are you going to ask him? That he was asked questions and never once 19 said that Gene Pedraza told him to falsify documents and stuck 20 to that story. MR. COONEY: 21 He used the word falsify. He used the word fabricate. He used the word 22 lie. That's what's in the grand 23 jury transcript. 24 Ryan. 25 falsifying documents, that he denied telling them that the He was asked a question about what he told The jury is left with the impression that he denied Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 70 of 311 659 1 defendant told him to do it. 2 him and rehabilitated him on. 3 think -THE COURT: 4 That's exactly what I redirected We've gone no further. I don't You can ask him -- I mean, you can ask him 5 the same questions we're talking about. 6 told Ryan, you know, never used the word lie, never used the 7 word fabricate, never used this, because that's what he told 8 him. MR. COONEY: 9 You told -- you know, With all due respect, I believe that 10 Mr. Eastepp has had an opportunity to cross him on that. I've 11 rehabilitated him. He 12 shouldn't be entitled to an opportunity to -THE COURT: 13 14 I'm going to let him ask this within the scope of what you just redirected. MR. COONEY: 15 16 There's no additional scope on this. And will I have an opportunity to redirect him on that? 17 THE COURT: 18 MR. COONEY: 19 Well -Understood. (Open court) RECROSS-EXAMINATION 20 21 BY MR. EASTEPP 22 Q 23 the phone, you never once told him that Gene Pedraza asked you 24 to fabricate or lie or falsify or any word like that memorandums 25 of activity, did you? Mr. Vargas, one last time. When you talked to John Ryan on Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 71 of 311 660 1 A None of those words were used. 2 MR. EASTEPP: 3 MR. COONEY: 4 THE COURT: 5 THE WITNESS: 6 THE COURT: No further questions, Your Honor. All right. You can step down, agent. Am I released? You are. Mr. Kidd, Mr. Cooney, who would be next? 7 MR. COONEY: 8 9 Pass the witness. Your Honor, the government calls Rolando Gomez. THE COURT: 10 Have Mr. Gomez come in, please. 11 Come right up here, sir. 12 (Witness sworn.) THE COURT: 13 All right. Be seated. ROLANDO GOMEZ, 14 15 the witness, having been first duly cautioned and sworn to tell 16 the truth, the whole truth and nothing but the truth, testified 17 as follows: DIRECT EXAMINATION 18 19 BY MR. COONEY 20 Q Good morning, sir. 21 A Good morning. 22 Q Could you please state and spell your name for the record. 23 A My name is Rolando Gomez. 24 Q Thank you, Mr. Gomez. 25 A Yes. That's R-O-L-A-N-D-O, G-O-M-E-Z. Are you currently employed? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 72 of 311 661 1 Q Where are you employed? 2 A I'm employed with the Department of Homeland Security-Office 3 of Inspector General. 4 Q What is your title? 5 A I am a special agent. 6 Q What is your current status with OIG? 7 A I am on administrative leave with pay. 8 Q When were you placed on administrative leave approximately? 9 A May 4th, 2012. 10 Q Why are you on administrative leave? 11 A Because I reported a false entry into a report. 12 Q Was that a false entry -- when you say report, is that into 13 an MOA or a memorandum of activity? 14 A That is correct. 15 Q Why did you -- is that a false entry into a report that you 16 placed? 17 A Yes. 18 Q Why did you insert false information into an MOA? 19 A Because I was instructed by the defendant. 20 Q At the time that you inserted that false information into 21 the MOA, did you know the information to be false? 22 A Yes, I did. 23 Q Did you tell the defendant that information was false? 24 A Yes, I did. 25 Q Mr. Gomez, when did you join DHS? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 73 of 311 662 1 A It must have been late March 2009. 2 Q Who was your supervisor when you joined the office in 2009? 3 A I had two supervisors. 4 charge was William Jody Warren, and the special agent in charge 5 was Eugenio Pedraza, the defendant. 6 Q 7 so of 2011 and a case file referred to as Case No. 209. 8 know the case file I'm referring to? 9 A Yes, I do. 10 Q Was that a criminal investigation to which you had been 11 assigned? 12 A It was. 13 Q Can you tell the jury generally what the allegations in that 14 criminal investigation were? 15 A 16 inspector at the Brownsville port of entry that was facilitating 17 the smuggling of illegal aliens into the United States. 18 Q How did you go about investigating that allegation? 19 A I reached out to the person who reported the allegation who 20 put me in touch with a confidential source of information. 21 Q What is a confidential source of information? 22 A A confidential source of information is an informant that 23 basically, you know, gives -- you know, provides information to 24 law enforcement to assist in a -- in an ongoing crime or 25 criminal investigation. The assistant special agent in Now, I'd like to turn your attention back to the spring or Do you The allegation was that there was a corrupt Customs Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 74 of 311 663 1 Q In this particular investigation, did you utilize the 2 confidential source of information in that manner? 3 A Yes, I did. 4 Q Did that confidential source in this criminal investigation 5 ever do something referred to as wiring up? 6 A Yes, they did. 7 Q Can you explain to the jury what wiring up means? 8 A Wiring up is, you know, the confidential informant, you 9 know, utilizing a recording device to record conversations. 10 Q Did the confidential source also provide other investigative 11 assistance to the government in the course of this -- or to OIG 12 in the course of the criminal investigation? 13 A I'm sorry? 14 Q Apart from wiring up, did the confidential source provide 15 other assistance? 16 A Yes. 17 Q What kind of assistance? 18 A Well, she participated in a -- in a operation, and she was 19 going to assist the Dallas office with a investigation that they 20 were doing. 21 Q 22 DHS-OIG? 23 A Yes, she was. 24 Q What kind of benefit? 25 A She was the -- the confidential informant did not have What was the -- Now, was this confidential source provided any benefit by Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 75 of 311 664 1 status to be in the United States legally, so she was a Mexican 2 citizen. 3 document that allows her to reside in the United States as long 4 as she cooperates with law enforcement in a criminal 5 investigation. 6 Q 7 source with an I-94 in order to obtain the source's assistance 8 in your investigation? 9 A Yes, it was. 10 Q Is that a typical benefit that is provided to confidential 11 sources who can provide investigative assistance to the 12 government? 13 A Yes, it is. 14 Q Now, did there come a time in April of 2011 where it was 15 necessary to deactivate this source? 16 A Yes, there was. 17 Q What occurs just generally when a source is deactivated? 18 A When a source is deactivated, you -- she is required to 19 return her immigration documents to the agent that is 20 supervising her, and it is the agent's department, agency 21 responsibility to return her back to Mexico. 22 Q 23 particular case when the source was deactivated? 24 A Yes, it was. 25 Q Now, why was it necessary to deactivate this particular And she was given a I-94, which is an immigration Was it necessary to supply this particular confidential So is the -- and I'm sorry. Is that what occurred in this Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 76 of 311 665 1 source? 2 A She claimed she was mistreated. 3 Q Did anybody -- whose decision was it to deactivate the 4 source? 5 A 6 deactivate her. 7 Q Who instructed you to deactivate the source? 8 A The defendant. 9 Q And so we're clear about the type of allegation, who did the My understanding is that it was headquarters' decision to It was headquarters' decision. 10 source allege had mistreated her? 11 A She alleged that I mistreated her. 12 Q Now, did you go about or did you then take steps to 13 deactivate the source? 14 A Yes, I did. 15 Q What steps did you take? 16 A We called her into the office and we told her, you know, she 17 was being deactivated and we needed her immigration documents, 18 and we were going to return her back to Mexico. 19 Q 20 to your office in McAllen and was informed of this information? 21 A Yes, she -- it was. 22 Q All right. 23 this source by yourself? 24 A No. 25 Q Who participated in the meeting with the source? Did there come a time in April of 2011 where the source came I want to talk about that. Did you meet with Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 77 of 311 666 1 A Myself, Special Agent Della Saenz and Special Agent Marco 2 Rodriguez. 3 Q 4 you? 5 A To serve as witnesses as to, you know, us deactivating her. 6 Q Where did that meeting occur? 7 A It occurred in the interview room of the DHS-OIG office in 8 McAllen. 9 Q Why did those individuals participate in the meeting with On the day that the source came to the office to meet with 10 you, did you see the defendant, Eugenio Pedraza, in the DHS 11 McAllen office? 12 A Yes. 13 Q Did you speak with him that day? 14 A Yes. 15 Q Did you speak with him about the fact that the confidential 16 source was coming to the McAllen field office? 17 A He was advised of her coming into the office, yes. 18 Q Now, how did the meeting with the source go? 19 A Well, she was -- she was angry. 20 excited about the fact that she was going to be returned to 21 Mexico, that she was being deactivated. 22 Q Who was she angry at? 23 A At me. 24 Q When you were explaining this, the fact that the source was 25 to be deactivated, were Marco Rodriguez and Della Saenz present She was -- she was not Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 78 of 311 667 1 in the conference room? 2 A Yes. 3 Q At any point during that meeting, did anyone else join you 4 in the conference room? 5 A Yes. 6 Q Who? 7 A It was Jody Warren. 8 Q How long was Jody Warren in the meeting with you? 9 A Seconds, maybe a minute at the most. 10 Q How angry was this source, by the way? 11 A She was very angry. 12 uncooperative, you know. 13 did not want to go back to Mexico. 14 upset, hostile. 15 Q 16 Mexico that very day? 17 A Yes. 18 Q Did you go about doing that? 19 A Yes. 20 Q How did you go about doing that? 21 A She -- she was returned to Mexico by Marco Rodriguez and 22 Special Agent Della Saenz. 23 Q How do you know that? 24 A Because I was instructed to and I observed them escorting 25 her out of the office. Wasn't very long. She was pretty -- she was She did not want to -- you know, she She was very angry. She was Was it your intention for the source to be removed back to She was returned to Mexico. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 79 of 311 668 1 Q Now, after -- and I'm sorry. Did anyone else assist in 2 escorting the source out of the office other than Della Saenz 3 and Marco Rodriguez? 4 A Yes. 5 Q Who else? 6 A It was Special Agent J.R. Flores. 7 Q After they left, after they escorted the source out of the 8 building, did you have any additional conversations with either 9 Marco Rodriguez or Della Saenz that day? 10 A I'm sorry, what? 11 Q After they removed the source -- excuse me. Bad question. After Agents Rodriguez and Saenz escorted the source out of 12 13 the building that day, did you have any conversation with either 14 of them about whether the source was returned to Mexico? 15 A Yes, I did. 16 Q Who did you speak with? 17 A I spoke with both Marco Rodriguez and Della Saenz. 18 Q What did they tell you about whether the source was returned 19 to Mexico? 20 A 21 of Hidalgo, Texas, port of entry. 22 Q 23 Saenz, did you have any conversations with the defendant on that 24 same day about the fact that the source had been returned? 25 A They told me they observed her walking to the Mexican side Now, after you obtained that information from Rodriguez and Yes, I did. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 80 of 311 669 1 Q What did you speak about with the defendant? 2 A I told him that -- when the -- when they -- when Marco 3 Rodriguez and Della Saenz, when I observed them escort her out 4 of the office, I walked out of the interview room. 5 defendant was standing right there, and I told him that Marco 6 Rodriguez and Della Saenz were returning her to Mexico. 7 Q 8 her out and you actually got the confirmation that she had been 9 returned to Mexico? All right. And the So this was between the time that they walked 10 A No, she was shortly after -- well, she had already left. 11 They were escorting her out of the office. 12 out of the interview room into our hallway to our office and the 13 defendant was there, and I told him Marco and Della were 14 returning her to Mexico. 15 Q 16 Mexico, did you write up any reports about this? 17 A Yes, I did. 18 Q First of all, why did you take responsibility for writing a 19 report? 20 A I was the case agent. 21 Q The case agent assigned to file 209; is that right? 22 A That is correct. 23 Q Were you also what's referred to as the handling agent for 24 the source of information? 25 A And I was stepping After you received confirmation she had been returned to Yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 81 of 311 670 1 Q What is a handling agent? 2 A The agent that supervises the source. 3 guess her handler, that -- you know, make sure that she's part 4 of the investigation. 5 Q 6 generally what did you write? 7 A 8 Special Agent Marco Rodriguez and Special Agent Della Saenz. 9 Q Was that your draft memorandum of activity? 10 A Yes, it was. 11 Q What did you do with that draft? 12 A I submitted it to both of my supervisors which the defendant 13 was one of them. 14 Q All right. 15 A No. 16 Q I'm going to show you what's already been admitted into 17 evidence as Government's Exhibit 10A. When you wrote up the report about what occurred, just I wrote that, you know, she was returned back to Mexico by That is correct. Yes, I submitted it to Jody Warren. And, Mr. Starnes, if you can just zoom in on Government's 18 19 That is, you know, I Exhibit 10A, these two emails. All right. 20 And what I'm showing you on Government's 21 Exhibit 10A, page 1, is an email first on May 4, 2011, from you 22 to William Warren. 23 May 6th, 2011, from you to Gene Pedraza. 24 emails? 25 A Yes, I do. And then the second email is the top email, Do you recognize those Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 82 of 311 671 1 Q Can you just explain to the jury exactly what they are? 2 A It's an email transmission where I submitted -- it's a 3 thread where I submitted it to -- I initially submitted the 4 report to Jody Warren, and then I forwarded it to -- to the 5 defendant. 6 Q 7 defendant? 8 A 9 pretty quickly, and Jody had the tendency to let days, weeks go Why did you forward that email and the attachment to the Because the defendant wanted the case closed out, you know, 10 by without reviewing reports. 11 Q 12 closed out immediately? 13 A He told me. 14 Q Can we go ahead and go to page 2, please? 15 actually if you could just scroll into -- you can, Mr. Starnes, 16 just go to the text of the memorandum of activity. How is it that you knew that the defendant wanted the case All right. 17 Thank you. And I'm showing you Government's Exhibit 10A, page 18 2. First of all, is this the attachment to the email that you 19 sent to the defendant on May 6th? 20 A That is correct. 21 Q Is this your draft MOA reporting what occurred with respect 22 to the return of the source of information? 23 A That is correct. 24 Q And, Mr. Starnes, if you could just highlight the second to 25 last line, the sentence about who transported? Thank you. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 83 of 311 672 Is it correct that this draft MOA reports that Marco 1 2 Rodriguez and Della Saenz returned the source of information to 3 Mexico? 4 A That is correct. 5 Q Was that the truth? 6 A That was the truth. 7 Q Is that why you wrote it there? 8 A That is correct. 9 Q Can you go ahead and put up Government's Exhibit 10B? And Government's Exhibit 10B is -- first at the bottom, the 10 11 May 4 and May 6 emails. 12 looked at in Government's Exhibit 10A? 13 forwarding on this MOA to the defendant? 14 A Yes, it is. 15 Q Now, the top of page 1 of Government's Exhibit 10B is an 16 email from the defendant to you also dated May 6th, about an 17 hour and 12 minutes after you sent him the draft. 18 this email reflect? 19 A 20 defendant with some edits that he made to the document after 21 reviewing it. 22 Q Was there an attachment to that email? 23 A Yes, there was. 24 Q Go to page 2. 25 Are those the same thread that we Essentially you're What does That email reflects that it's returned to me by the Is page 2 of Government's Exhibit 10B the attachment to the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 84 of 311 673 1 return email from the defendant? 2 A Yes, it is. 3 Q First of all, there are a series of changes on this 4 document, things that are scratched out, underlined things and 5 whatnot. 6 A 7 returning the document to me. 8 Q 9 the second paragraph concerning the return of the confidential 10 Can you explain to the jury what those things are? Those are changes, edits made by the defendant, and he's Can you go ahead and highlight, Mr. Starnes, the sentence in source to Mexico? Mr. Gomez, the edited MOA from the defendant, did it supply 11 12 any changes concerning who returned the confidential source to 13 Mexico? 14 A Yes, it did. 15 Q What was the change that the defendant made to the document? 16 A He removed the name of Agents Marco Rodriguez and Della 17 Saenz, and he added my name and Joe Blow escorted her to the 18 port of entry. 19 Q 20 in yellow? 21 A That is correct. 22 Q What was your reaction when you received this edit from the 23 defendant to your draft MOA? 24 A I knew it was incorrect. 25 Q What did you do about that? Is that what is highlighted here on Government's Exhibit 10B It was inaccurate. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 85 of 311 674 1 A I went directly to his office and approached him on it. 2 Q Who is "he"? 3 A The defendant. 4 Q What did you say to the defendant when you went to his 5 office? 6 A 7 Saenz returned the source to the Hidalgo, Texas, port of entry, 8 returned her to Mexico. 9 Q I told him -- I told the defendant that Marco and Della Did you tell the defendant that you were not there when the 10 source was returned to Mexico? 11 A Yes. 12 Q How did the defendant respond to this information? 13 A He told me that I had to put my name in the report, in the 14 memorandum of activity because she was my source, and that's how 15 headquarters wanted it. 16 Q What was his demeanor and tone when he said this to you? 17 A Demanding. 18 Q What did you say in response? 19 A I was -- you know, I was stunned. 20 shocked. 21 when he told me headquarters wanted it like that. 22 Q Did you protest? 23 A No. 24 Q Why not? 25 A Well, one, I didn't want to be disciplined for He knew. You know, I was -- I was And he made me seem like that's how it had to be done Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 86 of 311 675 1 insubordination. 2 manager that will hold things against you and couldn't -- you 3 know, would make your life miserable if you didn't go by what he 4 wanted. 5 Q Is -- how did the conversation with the defendant end? 6 A I went back to my office and put the edits that he wanted. 7 Q Could you put up Government's Exhibit 10C, please? He didn't like to be told no. Government's Exhibit 10C is another email thread between you 8 9 And, two, the defendant was the type of and the defendant. It is all the same emails that we just 10 looked at and then an additional one on Friday, May 6th, 2011, 11 at 11:34 a.m. 12 A 13 memorandum of activity with the corrections he wanted. 14 Q 15 you. What is that email from you to the defendant? That would be the email thread of me returning back the And -- I'm sorry. Can you go back to that, please? Thank And your return email was at approximately 11:34 a.m.; is 16 17 that right? 18 A That is correct. 19 Q His email with the edits was at 11:24 a.m.; is that right? 20 A That is correct. 21 Q Did the conversation that you just described where the 22 defendant told you that your name needed to be in the report 23 because that's what headquarters wanted, did that occur sometime 24 between 11:24 a.m. and 11:34 a.m.? 25 A Yes, it did. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 87 of 311 676 1 Q So that was a brief conversation? 2 A Yes, it was. 3 Q Can you go ahead and go to page 2 of this exhibit, please? 4 And you can go ahead and just highlight the text. What does the attachment that you sent to the defendant, 5 6 which still contains these tracked changes on here, what does 7 this reflect? 8 A 9 her back to Mexico along with Della Saenz. It reflects that -- it has my name in there, that I returned 10 Q Why did you substitute Della Saenz for Joe Blow? 11 A Because a female's name needed to be in the report also. 12 Q Why did you think that? 13 A Because it was a female source that we were dealing with, 14 and it's more appropriate if there's a female, you know, along 15 with the agent, assisting the agent. 16 Q 17 Saenz's name in particular? 18 A No. 19 Q What was your impression based on your conversation about 20 who, if anyone, you should substitute Joe Blow for? 21 A 22 to go there. 23 Q Did Della Saenz, in fact, return the source? 24 A Yes, she did. 25 Q But based on your conversation with the defendant, did you Did the -- did the defendant tell you to include Della That was my -- my idea because I knew a female's name needed Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 88 of 311 677 1 have any impression about whether he cared whether you put in 2 Della Saenz's or anybody else's name? 3 A No, I didn't. 4 Q You had no impression? 5 A Well, I knew it had to be done that way. 6 needed to -- I knew a female's name needed to be in the report, 7 so I put it in there, and he approved it. 8 Q 9 could just scroll up to the top two emails. I knew that it And so let's go to that Government's Exhibit 10D. If we Government's Exhibit 10D is a continuation of the email 10 11 thread you've been testifying about. 12 dated May 6th, 2011, at 11:35 a.m. 13 A 14 that it's good -- the report is good, to go ahead and print it 15 out and it's complete. 16 Q What does GTG stand for? 17 A Good to go. 18 Q Is that what you understood it to mean when you received 19 this email? 20 A Yes. 21 Q What did you do after you received -- and actually let's go 22 ahead and go to page 2 or page 3, rather, of Government's 23 Exhibit 10D. What does this reflect? It reflects the defendant approving the MOA. And what does this attachment reflect? 24 25 And at the top is an email A It reflects that I took her to the -- And, you know, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 89 of 311 678 1 Q Well, actually let me ask a more direct question. 2 the MOA that the defendant approved? 3 A Yes. 4 Q All right. 5 Exhibit 10E. All right. 6 Is this Let's go ahead and move to Government's And before we zoom in on this, do you recognize, 7 Mr. Gomez, what Government's Exhibit 10E is? 8 A Yes, I recognize it. 9 Q What is it? 10 A That's the final MOA with the signatures of myself and the 11 defendant. 12 Q 13 And if you would go ahead and highlight the second to last line 14 from -- in the second paragraph. All right. Let's go ahead and scroll in on first the text. Mr. Gomez, what does this final signed MOA state about who 15 16 returned the source to Mexico? 17 A 18 Della Saenz escorted the source back to Mexico. 19 Q Is that information true? 20 A No. 21 Q At the time that you put this information in the MOA, did 22 you know that information to be false? 23 A Yes. 24 Q Can you go ahead and go to the signature block, please? 25 It states that Special Agent Gomez, myself, which is me, and The signature on the left-hand side, do you recognize it? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 90 of 311 679 1 A Yes. 2 Q Whose signature is that? 3 A That is my signature. 4 Q And the signature on the right-hand side, do you recognize 5 that? 6 A That is the defendant's. 7 Q After this occurred, did you tell anyone that you had placed 8 false information in an MOA? 9 A Immediately after this occurred? 10 Q Immediately after we can start with. 11 A No. 12 Q Now, there was an inspection in September of 2011; is that 13 right? 14 A Yes. 15 Q An inspection of the McAllen field office? 16 A Yes. 17 Q Okay. 18 anyone about having been instructed by the defendant to put 19 false information in an MOA? 20 A 21 months later, I -- I had forgot about the incident. 22 Q Did you tell the inspectors about it? 23 A No. 24 Q And sometime after the inspection, did you reveal that 25 information to someone at the DHS? Prior to the McAllen office inspection, had you told At the time of the McAllen inspection, which was four, five Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 91 of 311 680 1 A Yes, I did. 2 Q Who did you reveal the information to? 3 A To my new supervisor, David Green. 4 Q Why did you reveal this information to him? 5 A I had received a phone call from an individual claiming he 6 was an attorney representing the source, and he wanted to know 7 my supervisor's number. 8 you know, after our conversation was over. 9 Q So I con -- I contacted my supervisor, After you -- and why exactly was it that you did contact 10 your supervisor? I mean, why was that necessary? 11 A 12 of command. 13 and, you know, I had -- the person claiming he was an attorney 14 wanted to speak with my supervisor; so, you know, I told him. 15 Q 16 getting the phone call from the attorney, did Dave Green give 17 you any instructions concerning the review of the case file 18 related to the confidential source? 19 A Yes, he did. 20 Q What instruction did he give you? 21 A He instructed me that the associate special agent in charge 22 wanted a detailed report on the case. 23 Q Did you go about preparing a report on the case? 24 A Yes, I did. 25 Q What did -- what happened when you went about preparing the You have to report it. You know, he wanted to -- it's chain It's, you know -- you know, he was my supervisor, During that conversation that you had with Dave Green after Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 92 of 311 681 1 report on the case? 2 A 3 which was closed, and I provided -- I went through the reports 4 to refresh my memory on the case to write the report for 5 Houston. 6 Q What happened as you were refreshing your memory? 7 A As I was refreshing my memory, you know, I came across the 8 report that was inaccurate, that was false. 9 Q What did you do when you discovered that? 10 A I told my supervisor, David Green. 11 Q When approximately was that? 12 A That day or -- 13 Q No -- yeah, when approximately? 14 A What are you -- I don't understand. 15 Q I mean when approximately did you tell Dave Green about the 16 false report? 17 inspection; is that right? 18 A It was January -- it was -- this was late January 2012. 19 Q So between the time that you were instructed to falsify the 20 MOA, which was approximately May 6th, 2012, and your reporting 21 of this incident to Dave Green in January of 2012, did you 22 report the incident to anyone else? 23 A No. 24 Q Why did you not -- at the time that you completed that 25 memorandum, though, you knew when you put it in the file that it I -- I had the -- I went and got the original case file When in time? Just time frame. You said it was sometime after the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 93 of 311 682 1 was false; is that correct? 2 A That is correct. 3 Q Why did you not report that to anyone between May of 2011 4 and January of 2012? 5 A 6 manipulated me thinking that's how headquarters wanted it, and I 7 had forgot about the case. 8 passed, and I forgot about the case, what had happened. 9 Q Because the way he instructed me, I -- I felt -- I mean, he I mean, we closed it out. Time had Now, it was sometime after this that you received a subpoena 10 to testify before the grand jury; is that right? 11 A That is correct. 12 Q Did you appear before the grand jury? 13 A Yes, I did. 14 Q Did you tell the grand jury what occurred? 15 A Yes, I did. 16 Q Did you appear before the grand jury before or after you 17 were placed on administrative leave? 18 A Before I was placed on administrative leave. 19 Q After you testified in the grand jury and after you were 20 placed on administrative leave, did you engage in additional 21 meetings with prosecutors involved in this case? 22 A Yes, I did. 23 Q And did you enter into an agreement with those prosecutors? 24 A Yes. 25 Q Were you told that you would not be prosecuted for any Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 94 of 311 683 1 criminal offenses arising from your participation in falsifying 2 documents? 3 A Yes. 4 Q Were there any conditions placed on that promise that you 5 would not be prosecuted? 6 A There were. 7 Q What were those conditions? 8 A The conditions were that as long as I was truthful with them 9 and as long as I cooperated and that if nothing else criminal 10 was found as a result of the investigation, I would not be 11 prosecuted. 12 Q 13 committed a crime? 14 A No. 15 Q At the time that you put those MOAs into the case file, you 16 knew they were false, though? 17 A 18 false. 19 Q 20 that excuse doing the act? 21 A No, it doesn't. 22 Q Do you agree that placing false documents into an official 23 case file with OIG is a crime? 24 A 25 Mr. Gomez, as you sit here today, do you believe that you Yes, they were false; but, I mean -- you know, they were If someone tells you to do something that is criminal, does Yes. MR. COONEY: No further questions, Your Honor. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 95 of 311 684 THE COURT: 1 Cross-exam? CROSS-EXAMINATION 2 3 BY MR. EASTEPP 4 Q Good morning, Mr. Gomez. 5 A Good morning. 6 Q I'm Larry Eastepp. 7 is that correct? 8 A We've spoken. 9 Q When I was still an Assistant U.S. Attorney? 10 A Yes, sir. 11 Q Must have been just in passing like in the office or 12 something? 13 A Yeah, or on the phone. 14 Q Sorry. 15 A That's okay. 16 Q Clearly that we didn't prosecute a case together or anything 17 big, right? 18 A No. 19 Q All right. 20 still employed, which I guess is obviously technically true, 21 meaning that's a truthful answer, but you just have to sit at 22 home, right? 23 A Yes. 24 Q Could I get you to speak up or pull the microphone up? 25 A Yes. I don't recall ever meeting you before; I don't recall. Your issue with your job, you stated you're Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 96 of 311 685 1 Q And Mr. Cooney didn't ask you about your job status in 2 relation to this agreement you have with the government. 3 your hope at the end of your testimony that you're going to get 4 your job back? 5 A 6 to work. 7 Q So you do hope you get your job back. 8 A I want to go back to work as a special agent. 9 Q And I assume one of the things, if you get an administrative Is it I hope the agency does the right thing and returns me back 10 hearing with them, you're going to say: 11 testified against Gene Pedraza. 12 A If they ask me. 13 Q I mean, you're a smart guy. 14 come up, correct? 15 A 16 inquiry on me or the administrative hearing, I have no idea what 17 they're going to ask me. 18 Q 19 was you're certainly going to make that known to them. 20 went and cooperated with the Department of Justice. 21 against Gene Pedraza, correct, as something good you think 22 you've done to get your job back? 25 There's no way that would not I have no idea what the -- you know, whoever does the You're going to -- my question was or my -- and the question MR. COONEY: 23 24 Hey, I went and Objection. I testified It's two questions in one there. THE COURT: Hey, I Why don't you reask your question, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 97 of 311 686 1 Mr. Eastepp. 2 BY MR. EASTEPP 3 Q 4 that you cooperated with the Department of Justice and testified 5 in a trial as something good to try to help you get your job 6 back? 7 A If they ask me. 8 Q You would not proffer that and tell them: 9 A I'm going to answer their questions and whatever they ask My point is that you're going to make this known, correct, Hey, I've -- 10 me. I'm not there to -- you know, I'm not going to ask them 11 their question -- I mean, whatever they want to know. 12 Q 13 is going to write a letter to DHS saying you did a great job 14 testifying? 15 A We haven't talked about that. 16 Q My question was are you hopeful? 17 happen? 18 A I haven't even thought about that, no. 19 Q Not thought about it a bit? 20 A I haven't thought about it one bit. 21 Q You wouldn't turn it down, would you? 22 A If they were to give me that? 23 Q Right. 24 A I'd read it first to see what it says, you know. 25 Q But if -- but if they sent it directly to your agency saying Are you hopeful that somebody with the Department of Justice Would you like that to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 98 of 311 687 1 he did a great job testifying in the Gene Pedraza case, please 2 factor that into your job -- any decision you make, you would 3 like that? 4 A 5 make that decision once, you know, it comes down to -- I mean, 6 I'd have to weigh out my -- you know, my -- the administrative 7 hearing. 8 they're doing. 9 allegation they make against me. I don't know. I mean, I was probably -- I mean, I'd have to I'd have to see exactly first on what they're -- what I mean, what their intentions are, what I have to see -- I don't know 10 what you're going to do. 11 Q 12 just didn't tell you that. 13 A Yes, that's correct. 14 Q The letter says why you're on leave, right? 15 A I don't -- I don't -- I don't remember what it says, to be 16 honest. 17 you're talking about a letter I last read two years ago or going 18 on two years. 19 Q 20 you're on leave. 21 this situation you're testifying about, correct? 22 A Because of the false report. 23 Q Right. 24 A But I don't know if the letter actually states that, 25 Mr. Eastepp. You received a -- when you were placed on admin leave, they They handed you a letter. I know it says I'm on leave, but I'd have to -- I mean, The point of it is you've already been told the reason And the reason you're on leave is because of I don't know if -- I don't remember what the admin Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 99 of 311 688 1 leave letter from the agency says, you know. 2 Q Well, it certainly -- 3 A I just know for myself that, you know, I'm here sitting here 4 in this chair because of, you know, that false report. 5 Q 6 pencils from the supply room, right? 7 A No, sir. 8 Q Right. 9 of this. They didn't put you on admin leave because you used too many We all agree it's -- you're on admin leave because 10 A Because of the report. 11 Q Right. 12 reason you're on admin leave. 13 reason you're going to have an administrative hearing if you're 14 trying to get your job back? 15 A 16 but I don't know exactly what they're going to allege. 17 they could allege various things. 18 Q 19 happened? 20 A 21 agency. 22 Q Okay. 23 A I don't -- I mean, that's something I would have to explain 24 to them. I mean, that's maybe something they could, you know, 25 tell me. But, I mean, like I said, I forgot about the incident. Okay. That's all I was -- we agree that that's the So don't you think that's the But I don't know -- I mean, it's going to be regarding this, I mean, What else could they allege beyond these MOAs or what Is there something we don't know? Failure to report. I don't know. I mean, it's up to the So you committed failure to report? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 100 of 311689 1 I reported it, you know. 2 Q We'll get into that. 3 A No, I don't. 4 Q Right. 5 leave, May 2012 to today, you've collected well over $100,000 in 6 salary, wouldn't you say? 7 salary. 8 A 9 Mr. Eastepp. So you have no intention on resigning? And so you've -- and from the time you've been on It's almost two years worth of I mean, I've been getting paid, but that's no vacation, I mean, you make it sound like I'm sitting there 10 just enjoying, you know, me collecting this check. 11 Q 12 last couple years. 13 A If it was my choice, I would be working right now. 14 Q Well, you made a lot of choices, I think you'd have to 15 agree, in this situation, did you not? 16 A Are you asking a question? 17 Q It was a question. 18 that led to being in here today. 19 A I made a lot of choices in my life. 20 Q Let's talk more about this immunity. 21 of the United States? 22 Texas? 23 be? 24 A 25 Department of Justice, you know, will not seek any -- I mean, as But you have gotten taxpayer dollars is the point in the You made a lot of choices, did you not, In my life. Is your immunity all Is it just the Southern District of Is it Washington, D.C.? What do you understand it to My understanding is that related to this case, you know, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 101 of 311690 1 long as I complied with the agreement. 2 Q And -- and it's not in writing, correct? 3 A No. 4 Q Did you consult an attorney? 5 A Yes. 6 Q And you've never gotten anything in writing? 7 A No. 8 Q Do you understand you don't have immunity? 9 A Hum? 10 Q That it's probably something else? 11 MR. COONEY: Objection. 12 THE COURT: 13 THE WITNESS: What is the question? Well, can you answer that question? I'm sorry? 14 BY MR. EASTEPP 15 Q What is it you think you have? 16 A Well, it's pretty obviously that I -- you know, that I've 17 complied with the agreement because I haven't been charged or 18 anything. 19 Q 20 Gene Pedraza, that's the agreement, right? I'll ask that question. So as long as you keep saying the things you've said about 21 MR. COONEY: 22 THE COURT: 23 THE WITNESS: 24 BY MR. EASTEPP 25 Q Objection, mischaracterizing his testimony. You can answer that. The question again, sir? As long as you keep saying the things about Gene Pedraza and Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 102 of 311691 1 what occurred with this MOA, that's what the agreement is about. 2 A 3 myself and the defendant, I guess I have immunity or whatever. 4 Q 5 you and Gene Pedraza, that was oral. 6 of that. 7 A No. 8 Q So it's your memory of those -- what was said on that day. 9 A Yes. 10 Q And that's what you've testified to the grand jury with, was 11 your memory. 12 memory of these events? 13 A That is correct. 14 Q So as long, again, as the things about Gene Pedraza are said 15 that are consistent, you have immunity? 16 A Can you repeat that again? 17 Q If you say these things about your memory of those events 18 about this MOA as you said to the grand jury, if you keep saying 19 them today and they're consistent, you still have immunity? 20 A 21 have -- as long as I have that agreement with the -- with the 22 prosecutors. 23 Q 24 misunderstanding and I wasn't, quote, ordered to do something, 25 that would violate the agreement. As long as I tell the truth as to what happened between And as to this, the things you say of the exchange between There's no tape recording That's what you're testifying with today, is your As long as I tell the truth, I have immunity, yes, or I Meaning if you ever said: You know, maybe this was a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 103 of 311692 1 A Well, it wasn't a misunderstanding, Mr. Eastepp. 2 Q If you said that, is my question, it would violate the 3 agreement. 4 A You'd have to ask them. 5 Q It's your agreement, sir. 6 A I mean, you'd have to ask the prosecutors if they're going 7 to prosecute -- if they would prosecute me. 8 the truth. 9 told me what he told me; and, you know, he made the changes in I mean -- I just told them And it wasn't a misunderstanding. You know, I -- he 10 the document that was presented. 11 Q 12 beginning of this. 13 records that are in the government's files, exhibits, that show 14 as early as 1989, she -MR. COONEY: 15 16 We'll go through those too. Let's go back now to the Let's talk about this source. Objection. I've seen Providing testimony about documents he's seen in the files. THE COURT: 17 Rephrase your question. 18 BY MR. EASTEPP 19 Q 20 woman was a professional source? 21 A 22 would say maybe back late '80s, early '90s. 23 Q What is a professional source like that? 24 A I didn't say professional. 25 Q Yes. What is your memory from these records as how far back this She had been like a career source of information. I mean, I Are you asking me? You used a little different term. Can we agree that's Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 104 of 311693 1 one term somebody might use for somebody like this? 2 A I wouldn't say professional. 3 Q Term doesn't matter. 4 But somebody like this that continues to be a source for the 5 federal government, have you seen somebody like this before? 6 A 7 one before like that. 8 Q 9 you? I'll move on. Term doesn't matter. I've heard of them, but I've never, you know, worked with Would you say then she was unusual in the source world to 10 A Unusual? I mean, as in -- 11 Q That she's somebody that's been a source since the 1980s for 12 various federal agencies. 13 A 14 been working for several years, you know. 15 Q 16 federal system; and that by cooperating, she's going to get to 17 stay in the United States? 18 A 19 with, yeah. 20 Q 21 intention since the 1980s? 22 latches on to a federal agent, she can get paroled in, she can 23 live in the United States, not have to go through the 24 immigration system like most people would? 25 A I mean, it's not typical. But, I mean, you know, she had And was it your clear impression that she understood the That would be -- I mean, that was her intentions to begin Fine. Yes. And wouldn't it be logical that that had been her She's learned that if she just Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 105 of 311694 1 Q Fine. Point of all this is I think she's trying to game 2 you. 3 A 4 worked with her before vouched for her. 5 gave me seemed something we could work, so I -- I decided -- you 6 know, I worked -- I thought it was good information or 7 information that we could at least try and develop something. 8 Q 9 Dallas when she got mad at you, isn't it your impression she Is that a fair impression you had? I felt -- I mean, the law enforcement officers that had The information she But these events that start happening once she's up in 10 started trying to game you? 11 so she can stay in the country? 12 A It's possible. 13 Q How did you interpret those events differently than that? 14 A I interpret it as, you know, she was upset. 15 may have got her feelings hurt, you know. 16 Q 17 of Amy Owen, right, or Owens, right? 18 A Yes. 19 Q And she had convinced Amy Owens that you were a really bad 20 guy. 21 22 23 24 25 She's trying to get you in trouble She was -- she But she was working with a female agent up there by the name MR. COONEY: Objection. How is the witness supposed to know what the source convinced someone else of? THE COURT: answer it. If you know the answer to that, you can If not, just tell him you don't know. THE WITNESS: Remember -- I mean, refresh -- say the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 106 of 311695 1 question again. 2 BY MR. EASTEPP 3 Q She had convinced Amy Owens that you were a bad guy. 4 A Yeah, I guess you could -- I mean, you could say that. 5 Q It had been reported to headquarters, right? 6 A What? 7 Q The Dallas agency, your office in Dallas had reported to 8 headquarters that the source was saying you're a bad guy. 9 A I -- I believe so. 10 Q Right. 11 A I mean, I don't remember if -- I mean, I wasn't -- I don't 12 know if Dallas had contacted them. 13 defendant was handling all that, you know; him and Jody Warren, 14 the assistant. 15 Q 16 were being made that had made it all the way to D.C. about you 17 by this source, correct? 18 A 19 told the defendant -- well, the defendant told me that 20 headquarters said to deactivate her immediately. 21 Q 22 you, correct? 23 A Yes. 24 Q Mr. Gomez, I'm not trying to be difficult. 25 is -- was to your benefit that this source was saying things I'm going to head to that next. I mean, I had left my -- the But you knew allegations Well, I knew headquarters made the decision or headquarters And by then, you're aware that she's saying things about I think all this Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 107 of 311696 1 against you, she's a professional source, and your agency is 2 trying to help you get her out of the country because she's not 3 a proper source. 4 A 5 confident in what -- you know, what we had done with her and -- 6 you know, a complaint? 7 mean, in law enforcement, you know, if you're -- if you don't 8 get a complaint, you're not -- you're not working. 9 happens, you know. Not really. I didn't feel it as a benefit. I mean, I was I mean, a complaint is a complaint. I I mean, it 10 Q So this was no big deal to you that this source had 11 convinced the Dallas office who had reported to your 12 headquarters that you're a bad guy? 13 A 14 in my office or anything like that, but I was -- like I said, I 15 didn't fear it. 16 Q But deactivating her made a lot of sense, did it not? 17 A Well, yeah. 18 Q Because let me ask this. 19 source, there's a chance they may have to testify at some point, 20 correct? 21 wired up, whatever, they may have to testify, correct? 22 A Yes. 23 Q So if you've got a source who's lying about a case agent 24 who's handling her, that information would have to be turned 25 over in a trial where that source is a witness, correct? No big deal? Well, I mean, I wasn't happy or thrilled or doing cartwheels If you've got somebody who's a If they're in the middle of a transaction, they're Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 108 of 311697 1 A Come -- I mean, tell me the question again? 2 Q If the source has been known to lie, particularly about her 3 handling agent, that's information that has to be handed over in 4 a prosecution, correct, that somebody's a liar? 5 A I really don't know. 6 Q You've never been trained in the rules of what -- Jencks and 7 Giglio and those sorts of courtroom issues are? MR. COONEY: 8 9 Objection, argumentative. He answered the question. THE COURT: 10 Overruled. He can answer that. 11 BY MR. EASTEPP: 12 Q Do you know what Giglio information is? 13 A Yes, I remember Giglio. 14 Q It's about if a witness has told a lie, that has to be 15 turned over? 16 A If a witness has told a lie? 17 Q That the prosecution knows about. 18 A Yes, it has to be turned over. 19 Q Right. 20 good source is the point of all of that, correct? 21 A Oh, yes, yes, yeah. 22 Q Right. 23 agent who's handling her, the McAllen agent who's responsible 24 for her has told a Dallas agent that that agent is a bad guy, 25 you felt it was a lie, right, that she wasn't being truthful So a source who is known to be a liar is not a very So deactivating a source who's told a lie about her Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 109 of 311698 1 about you? 2 A I felt it was a lie, but -- 3 Q Okay. 4 A -- you know. 5 Q So from there on, she's not going to be a very good source 6 because you've got -- she's a documented liar now, correct? 7 A Well, yeah. 8 Q So kicking her out of the country made a whole lot of sense 9 for a whole lot of reasons. 10 A Well, that's -- when you give somebody an I-94, if you're no 11 longer -- when you deactivate them, you have to return them back 12 to Mexico. 13 Q 14 fact that if it's a source who's known to be a liar, it made 15 sense that you couldn't use the person anymore, so deactivate 16 the person. 17 and get her out, correct? 18 A Yes. 19 Q All right. 20 this time was, was it not, that the agent that's on the 21 paperwork that paroled her in and helped get that I-94 from ICE 22 is responsible for that person while that person is in the 23 country. 24 A Yes. 25 Q Right? That's part of it. I hadn't moved to that yet. But it was simply about the And under the rules then, you have to pull the I-94 And this issue under the policy of DHS-OIG at So there's no doubt you were the agent on that Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 110 of 311699 1 paperwork. 2 A I believe that's correct. 3 Q So the pulling of the I-94 once that decision was made was, 4 in fact, something that fell to your responsibilities? 5 A The pulling of the I-94 was my responsibility? 6 Q Yeah. 7 whole thing in motion of getting her I-94 taken away, a Social 8 Security card taken way if she has one, and getting her out of 9 the country. No, of the deactivating her, which would set that You were the case agent responsible for that? 10 A Yes, I was. 11 Q That's just the point of that. 12 the agency, right? 13 A Yes. 14 Q So that would have -- no doubt if you knew it, it's known to 15 the special agent in charge, whether it was in the McAllen 16 office or Seattle, and your headquarters knew that was the rule 17 because it's their rule, correct? 18 signs the paperwork is responsible while that person is in the 19 country, that's -- 20 A Is responsible while they're in the country. 21 Q All right. 22 McAllen? 23 McAllen? 24 A 25 into Mexico. Okay. And that was the policy of That the special agent that So was it a ruse that got her down to I mean, how did y'all get her to drive from Dallas to She -- the source called me, and she said she wanted to go And I told her in order to go to Mexico -- Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 111 of 311700 1 Q Can you speak into the microphone or pull it closer, please? 2 A The source called me and said that she wanted to go into 3 Mexico, and I told her that she needed a special permit for that 4 and that she needed to come to the office and pick up that 5 special permit to go into Mexico. 6 Q 7 an opportunity to deactivate her without y'all having to go up 8 to Dallas and grab her and bring her to the border, correct? 9 A That's correct. 10 Q So y'all had to have been at least fairly happy. 11 you a lot of time and effort it sounds like, correct? 12 A It gave me the opportunity. 13 Q Right. 14 involved once you knew -- or she made that call to you and said: 15 Hey, I need to go into Mexico? 16 chain? 17 A 18 charge. 19 Q Right. 20 A They knew about it. 21 Q So who is it that makes the decision: 22 opportunity. 23 A Who makes the decision -- 24 Q Right. 25 A -- to deactivate her? That was very fortuitous, was it not? I mean, it gave y'all It saved Was supervisory personnel at the McAllen office Did you then report that up the Yes, I reported it to the defendant and the special agent in I mean the assistant. So to Jody Warren, Gene Pedraza? Okay. Great Let's deactivate her while she's here? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 112 of 311701 1 Q Right. 2 A On that particular case, I was told by the defendant that 3 headquarters wants her deactivated. 4 Q 5 it is because of this brouhaha between Dallas and McAllen over 6 the things she's saying about you. 7 A Yes. 8 Q Okay. 9 won the power ball. Uh-huh. And you were at least generally aware that part of So again, I don't mean you're thrilled like you just I don't mean thrilled that way. But, I 10 mean, you couldn't have been displeased that headquarters is 11 fully on board with deactivating her and getting her out off 12 your books. 13 A I mean, I wasn't displeased. 14 Q Right. 15 A I mean, it was their choice to do it. 16 wanted to do an investigation, I mean, oh, well, I would have 17 done it. 18 Q 19 of a source or not being, you're going to take the not being 20 investigated, correct? 21 A Well, yes. 22 Q All right. 23 has communicated that she's going to be or wants y'all to 24 deactivate her? 25 A But, I mean, if they I didn't have anything to hide. But choice of being investigated for scurrilous allegations So how is it reported to you that headquarters How is it communicated to me? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 113 of 311702 1 Q Right. 2 A The defendant approached me. 3 that headquarters -- he spoke with headquarters, and 4 headquarters wanted her deactivated. 5 Q 6 headed to McAllen anyway? 7 A Okay. THE COURT: point, let me know. MR. EASTEPP: 11 THE COURT: 13 This is fine, Judge. Why don't we take about ten minutes, ladies and gentlemen. (Jury leaves courtroom) THE COURT: 14 15 I can't remember. Mr. Eastepp, when you reach a breaking 10 12 He -- in my office and told me Do you think he was aware at that moment that she was I don't believe so. 8 9 How do you find that out? We had a juror that needed a break. (Recess taken from 11:38 to 11:51.) THE COURT: 16 Let's have the jury join us. I don't know 17 what your game plan is, Mr. Eastepp, but I thought if we could 18 go another half hour or so, see if we can finish with this 19 witness. If not, we'll take a lunch break. MR. EASTEPP: 20 Yes, sir. It would help when I get to the 21 same MOA, if I could have the government computer guy put them 22 up real quick. THE COURT: 23 24 25 It will speed it up. You will be willing to do that, will you not? MR. COONEY: Of course we will, Your Honor. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 114 of 311703 1 (Jury enters courtroom) THE COURT: 2 All right. Ladies and gentlemen, be seated. Mr. Eastepp, if you'd continue, please. 3 MR. EASTEPP: 4 Thanks, Judge. 5 BY MR. EASTEPP 6 Q 7 McAllen office. 8 McAllen from Dallas? 9 A Yes. 10 Q How did you first encounter her that morning? 11 A She, you know, went into the -- went into our office and 12 asked for me. 13 Q 14 way to your office? 15 A Yes. 16 Q Meaning versus your going to meet her at McDonald's or at 17 the mall or a parking lot. 18 you. 19 A That's correct. 20 Q So she voluntarily showed up that morning, correct? 21 A Yes. 22 Q And would it be safe to say you had already arranged with 23 Special Agents Marco Rodriguez and Della Saenz to have them 24 participate with you that morning? 25 A So we're at the point in time about the source coming to the Did y'all know how she was going to get to She was going to drive down to McAllen. So that was the setup, that she would actually come all the It was decided she was coming to You weren't going to her, correct? Yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 115 of 311704 1 Q And could I get you to speak into the mic, please? 2 A Yes. 3 Q Why did you ask those two agents to participate with you? 4 A To serve as witnesses, you know. 5 you know, Della was a female. 6 Q And that's just protocol? 7 A I -- it's just being smart. 8 seen it in writing as far as procedure-wise or policy, but it's 9 just being smart, I mean. And plus we needed a -- It was a female source. I mean, I'm not sure if I've 10 Q Most law enforcement officers do that? 11 A Yes. 12 Q Whether it's a police department or a federal agency, 13 correct? 14 A Yes. 15 Q Female on female -- 16 A Yes, sir. 17 Q -- right? 18 immediately into the interview room? 19 A 20 in. 21 Q 22 the room with y'all. 23 A No. 24 Q She's voluntarily walked in. 25 interview room. Yes. So when the source shows up, did y'all take her Well, we didn't take her physically. We brought her I mean -All right. That's what I meant. Just simply she came into She's not in cuffs or anything. Y'all walk her into the Are Marco Rodriguez and Della Saenz already in Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 116 of 311705 1 there? 2 A Yes. 3 Q Let me stop right here and ask you a few questions about 4 Marco Rodriguez. 5 participate that morning? 6 A 7 seasoned agent, responsible. 8 player too. 9 Q Did he have more experience than you? 10 A Yes. 11 Q Was he somebody you relied on at times? 12 experience to run things by? 13 A Yes. 14 Q Was that true for some of the other agents, non-supervisory 15 agents in the office? 16 A We would, you know, ask for his advice on things. 17 Q That's what I mean. 18 A Some did. 19 Q Did you know the relationship between Marco Rodriguez and 20 Gene Pedraza? 21 A What do you mean known or -- 22 Q I mean, were they friends, friendly? 23 their relationship to be? 24 A Co-workers. 25 Q Did you observe they would go to lunch together regularly or Why was he the male agent that you picked to Marco was -- he was -- he was a good, an experienced well He -- you know, he was a team He was always willing to help. It wasn't just you. Relied on his Others did it too? What did you observe Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 117 of 311706 1 chatting or anything like that? 2 A 3 unless it was work related. 4 Q So you would call that a professional relationship? 5 A I guess you can call it a professional relationship. 6 Q And you said co-worker. 7 accurate to be supervisor and employee relationship? 8 A Yes. 9 Q Co-worker is more, just in my mind, would be like you and No, I never seen them go to lunch together or, you know, They'd chat or talk or -- Would it be just a tad bit more 10 Marco. You're kind of on the same level. 11 more experience, but you're co-workers, versus a supervisor like 12 Gene Pedraza and Marco. 13 A Yes. 14 Q So Marco was -- was Marco somebody seemed to you to know the 15 policies and procedures and how things are done with the agency? 16 A 17 he had a decorated career in federal law enforcement, so... 18 Q 19 Special Agent Saenz is in there because of the woman agent thing 20 and to be also a witness to what's going on too, correct? 21 A 22 agent. 23 Q And Della is in there again because -- 24 A For the female part, yeah. 25 Q And to be an additional witness. Marco was an experienced agent. One may have a little You know, he -- you know, So that morning he's in there because of his experience, He's there to help out and because he's an experienced That didn't hurt either, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 118 of 311707 1 correct? 2 A Correct. 3 Q How soon after the source is in the room does she get hit 4 with the news of: 5 Mexico? 6 A 7 mean, we pretty much -- I pretty much told her that she was 8 being deactivated. 9 Q What was her reaction? 10 A She was upset. 11 Q Did that surprise you? 12 A No. 13 Q What happened next after you've told her she's deactivated? 14 A She's -- you know, she's upset and she's, you know, saying I 15 tricked her, you know, to come into the office for a permit. 16 Q Did you respond to that? 17 A I told her we were deactivating her. 18 Q Did it escalate? 19 with you? 20 A 21 I can't remember what went back and forth. 22 mean, she was upset. 23 Q But you don't remember the back and forth? 24 A As to what was actually said? 25 Q No, kind of what happened next. We're pulling your papers. You're headed to I mean, as soon as the interview room door was closed, I Would she continue to argue, for example, Well, I mean, I wouldn't -- I mean, she was upset, you know. But, you know, I Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 119 of 311708 1 A Well, she was -- like I said, she said, oh, I tricked her, 2 and, you know -- you know, I'm like, you know, we're 3 deactivating you, and she was upset. 4 Q 5 What do you have to do as the agent in charge? 6 A 7 return her back to Mexico. 8 Q Any other documents that get pulled other than the I-94? 9 A Whatever immigration documents she has or that are related Okay. What does the process of deactivating actually mean? You have to have her return her immigration documents and 10 to the I-94. It could be a Social Security card. 11 Q 12 also something that had to be taken from her? 13 A Yes. 14 Q Did she voluntarily give those documents up? 15 A She told us that they were in her car or so. 16 Social Security card was in her car, I believe. 17 Q 18 where the car is, correct? 19 A Yes. 20 Q Is it about this time that Special Agent or Assistant 21 Special Agent in Charge Warren comes into the room? 22 A Yes. 23 Q Did at any point in time you see Gene Pedraza come into the 24 room? 25 A Do you recall in this particular situation whether that was Okay. No. Or no, her Then it becomes a big issue that she won't tell you I saw him outside. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 120 of 311709 1 Q Like hallway? 2 A Yes. 3 Q But was he -- did you see him most days somewhere in a 4 hallway if you were both in that office? 5 A 6 it -- Jody stood in between the door, I saw Gene outside. 7 Q Okay. 8 A No. 9 Q Did you ever leave the room during these events and brief When the door opened and Jody was right there because he had But he never came into the room? 10 Gene Pedraza about what was happening inside that room? 11 A At which particular moment? 12 Q While the source is still in that room before she's driven 13 to Mexico, while she is physically in that office, did you 14 personally ever leave and go brief Gene Pedraza about anything? 15 A Yes. 16 Q What did you brief him about? 17 A Just kind of told him what was going on and she was being 18 difficult and she was unhappy and -- 19 Q Which was all true? 20 A True. 21 Q Was this before or after Jody Warren had come into the room? 22 A It was before and after. 23 Q So you did it more than once? 24 A Yeah, yes. 25 Q When Jody Warren is in the room, he caused quite a stir, did Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 121 of 311710 1 he not, with her? 2 A Yes. 3 Q Threatened to arrest her? 4 A Well, he told her -- 5 Q Or cuff her, rather? 6 A Yes. 7 Q Right, sorry. 8 not telling y'all about the car and where the keys are, correct? 9 A That is correct. 10 Q And to condense it, she, after some -- whether it was 11 bluffing or not on his part of being loud, she produced the 12 keys. 13 A 14 cuffs, she produced the keys. 15 Q 16 car? 17 A It must have -- it must have been Marco Rodriguez. 18 Q Do you remember Jody leaving also and going with him? 19 A I don't remember. 20 Q Leaving just you and -- 21 A I remember him leaving the interview room. 22 Q Okay. 23 that? 24 A I don't know. 25 Q Meaning actually left and went downstairs and out on the Cuff her. And all that was over this -- her After -- after Jody told her that he was going to put her in Right. That's the point. Who took the keys to go find the So if he did go with Marco, you might not have known Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 122 of 311711 1 parking lot. 2 A I don't know where Jody went. 3 Q Because the interview room is windowless, correct? 4 A Well, there's a window, but it's -- but you can't like see 5 anything. 6 Q It's to the reception area. 7 A No, it's actually to an office, the next adjacent office. 8 Q It's actually where somebody can stand and look in? 9 A Yes. 10 Q Right. 11 There's not an outside window, an exterior -- 12 A No, no. 13 Q That's my point. 14 looking for the car in the parking lot, that was beyond your 15 knowledge? It's not to the outside. But you can't see the parking lot, is my point. MR. COONEY: 16 17 You might not have known that. So if Jody Warren was with Marco out Objection, asked and answered. He said he can't see out to the parking lot. 18 THE COURT: Overruled. 19 THE WITNESS: 20 THE COURT: 21 THE WITNESS: You can answer this. Your Honor? You can answer it. Oh. What was the question again? 22 BY MR. EASTEPP 23 Q 24 know it because you couldn't see it. 25 A Just trying to establish. Yeah, I don't remember. If Jody was with Marco, you don't But I couldn't see it from inside Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 123 of 311712 1 the interview room. 2 Q 3 anyway, right? All right. That was the issue. You couldn't have seen it Did it get reported back to you the car was out there 4 5 somewhere nearby the building? 6 A Yes. 7 Q And was that kind of the final step before she's going to be 8 taken to Mexico? 9 A Yes. 10 Q And Jody had left by then, correct? 11 A Jody had left. 12 Q So it's back down to besides the source, as to agents, it's 13 just you, Marco Rodriguez and Della Saenz? 14 A In the interview room? 15 Q Right. 16 A Yes. 17 Q Right. 18 the marshal's stairwell to take her out? 19 A That is correct. 20 Q Much like this building with the back doors behind where 21 chambers and all are, the marshals usually have some place they 22 can transport prisoners. And it's -- there's some arrangements made to use 23 MR. COONEY: 24 MR. EASTEPP: 25 Objection. Judge, this is background material. not trying to prove anything. I'm Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 124 of 311713 THE COURT: 1 Overruled. 2 BY MR. EASTEPP 3 Q 4 her out, correct? 5 A Yes. 6 Q Which prevented having to use the public elevators like 7 would be out here in this hallway, correct? 8 A That is correct. 9 Q Not an atypical thing when somebody that's essentially a, That y'all arranged to use the marshal's stairwell to get 10 quote, prisoner is being transported, right? 11 A Not a what? 12 Q When somebody who's a prisoner, somebody like her. 13 wasn't arrested, but she's in y'all's custody and control and 14 taken out of the country, correct? 15 A We wanted to do it quietly. 16 Q Okay. 17 set the scene. 18 sir. 19 A I'm answering your question. 20 Q So who made the arrangements with the marshals to use their 21 stairwell? 22 A J.R. Flores. 23 Q He used to be a deputy marshal. 24 A That is correct. 25 Q So when had the decision been made that it's going to be Special Agent Gomez, that's all. I'm not trying to trick you. She I'm just trying to Okay. Please, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 125 of 311714 1 Marco Rodriguez and Della Saenz that are the transporters? 2 A Right before they took her out. 3 Q So again, the only people in the room besides the source 4 agent-wise are you, Marco Rodriguez, Della Saenz? 5 A 6 instruction from Jody. 7 and Della. 8 think I may have stepped out or something. 9 Q No. I may have stepped out, but I remember getting the Jody told me, you know, to have Marco I don't remember if Jody was in the room or what. I Did you understand that instruction to be consistent with 10 this whole issue, that that's keeping you out of this 11 headquarters trouble issue that the source has raised? 12 A 13 Just to, you know, to get me away from her, I guess, or -- 14 Q Again, because she's made complaints to your headquarters. 15 A No, because she was angry at the moment that morning. 16 was hostile. 17 Q 18 out? 19 A 20 from there. 21 know, they wanted me to cease contact with her. 22 Q Which was to your benefit. 23 A Yes. 24 Q So Marco Rodriguez and Della Saenz, in fact, go out the back 25 stairway, take her to Mexico. Well, it was to avoid, you know, any contact I had with her. She She was upset, you know. So it never hit your mind Jody Warren is trying to help you Well, I mean, they wanted me to -- to get out of the picture But if that would have been the case, I mean, you Did you follow? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 126 of 311715 1 A No. 2 Q What happened to the -- her car, the source's car? 3 A I believe they contacted her sister, and her sister came to 4 pick up the keys. 5 Q Who is "they"? 6 A I believe it was Della Saenz. 7 Q What did you do immediately after you left the room? 8 they leave the room with her and that thing is over, where did 9 you go? I went and told Gene. After 10 A He was outside the -- he was in the 11 hallway. 12 Q He's got a name. 13 A I went and told the defendant that Marco and Della were 14 taking her to the -- were returning her back to Mexico. 15 Q And who was standing there when this conversation occurred? 16 A It was him and I. 17 Q Not tape recorded. 18 A It wasn't recorded. 19 Q And I assume it was as brief as you just said it? 20 A It was -- it was brief. 21 Q And what did you do after that, immediately after that? 22 A I may have went to my office. 23 Q So did you go start typing the paperwork, or did you wait? 24 A I probably started -- I mean, I can't remember. 25 know I did the -- I started working on the paperwork, but I I went and told the defendant that. It's Gene Pedraza. Just coming from your memory. I don't remember. I mean -- I mean, I Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 127 of 311716 1 don't know if I went right then and there or if I went to, you 2 know, let another co-worker know what happened or I don't know. 3 I mean, I don't remember, you know. 4 Q 5 not an investigation, correct? 6 her. 7 A 8 headquarters wanted, according to the defendant. 9 Q This whole exercise of getting her there that day was really It was all about deactivating It was what headquarters instructed or, you know, what The procedures that were performed were not pursuant to an 10 investigation that morning. 11 her. 12 A Yes, we were deactivating her. 13 Q When is it you find out that she has been observed walking 14 into the Republic of Mexico, the Mexican state? 15 A 16 returned back to the office, they told me. 17 Q 18 email? 19 A 20 21 22 23 24 25 It was pursuant to deactivating When Marco and -- Agents Della Saenz and Marco Rodriguez You don't think you found out earlier by phone or text or I don't know. MR. COONEY: Objection. How is the witness supposed to know what somebody else found out by text, by phone? THE COURT: No, no. He's asking if he found out. your answer is you don't remember. THE WITNESS: BY MR. EASTEPP What was -- And Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 128 of 311717 1 Q You don't recall finding out earlier than them personally 2 telling you? 3 A 4 that -- that when they return to the office. 5 Q 6 starting to prepare the paperwork after they've returned? 7 A 8 paperwork. 9 Q I don't recall finding out earlier. Okay. My recollection is And by now do you -- can you remember if you were I believe it was after they returned I was starting the Describe to us first what is the paperwork you're going to 10 have to prepare? How many documents are you going to have to 11 prepare, and what are they called? 12 A 13 her, and then the other one would be an AROI, abbreviated report 14 of investigation, you know, to close out the case. 15 Q And would you have prepared all of those? 16 A Yes. 17 Q Would you have prepared them all at the same time that -- 18 A You -- no, you -- I prepared the memorandum of activity 19 first. 20 Q And why would you have prepared the MOA first? 21 A Because, you know, you have to -- that's what you need first 22 in order -- I mean, that was the final step of the -- closing 23 the case. 24 reporting the last activity of the -- of the case, the 25 investigation, so then you do an AROI afterwards. One is a memorandum of activity documenting the deactivating And once I got that back, then I did the AROI. So, I mean, well, that was the final step of You get that Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 129 of 311718 1 completed first, you know. 2 Q 3 had as her handler, her -- that she's -- you're the agent that's 4 signed her into the country or signed the paperwork that led to 5 her being in the country. 6 paperwork on the backside too, correct? 7 A Yes. 8 Q So that was all routine, what was going on as to the 9 paperwork? And again, that's part of the responsibility you would have It's your responsibility to do the 10 A Yes. 11 Q I want to have 10A put on. 12 be able to see it on your monitor. You can see it on your -- should So even if you started the paperwork on April 29th -- it was 13 14 April 29th when all this occurred, correct? 15 A I'd have to see the report. 16 MR. EASTEPP: 17 THE COURT: 18 THE WITNESS: Can I approach, Your Honor? You may. I have to see the MOA that I wrote. 19 That's something else. 20 BY MR. EASTEPP: 21 Q 22 on May the 4th, correct? 23 A Yes, that's going to Jody on May 4th. 24 Q Right. 25 have refreshed your memory with your testimony before you got But we agree before I go to the MOA, that you're sending it And again, you don't independently recall the -- or Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 130 of 311719 1 here today as to the date of when all this occurred with the 2 source? 3 A The date it occurred? 4 Q Right. 5 A I don't remember the actual date. 6 Q Can I have 10B, please? When we deactivated her? Now do you see the date? 7 8 A Yes. It's April 29th. 9 Q Right. So it was five days later before you ever 10 communicated that MOA to any of your supervisors, correct? 11 A Yes. 12 Q I just showed the email that showed May the 4th. 13 days in April. 14 A 15 shows what, May 4th. 16 Q 17 April 29th. 18 A 19 some other case work came up. 20 between or so. 21 Q 22 event. 23 A Yes. 24 Q And this is the version that's on the screen now that you 25 got back, correct? That's correct. There's 30 I mean, that's when I sent the -- that So meaning you didn't type it on April 29th and send it on I could have typed it. Maybe I didn't send it, or maybe Maybe there was a weekend in I mean, I don't know. I don't remember. My question was simply you emailed it five days after the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 131 of 311720 1 A That is the version I got back from the defendant. 2 Q Right. 3 that it's May the 6th when it comes to you, or do we need to put 4 that back up? 5 A You could put it back up. 6 Q At the top you see "edits"? 7 A Yes, that's correct. 8 Q All right. 9 Warren on the 4th, you're getting it back from Gene Pedraza. And if we -- do you recall the prior email shows You see it says May the 6th? So even though you've originally sent it to Jody 10 And I guess you copied Gene, but you're getting it back on the 11 6th? 12 A I'm getting -- he returned it on the 6th. 13 Q And can we agree that's a week after the events? 14 A Yes. 15 Q And again, looking at Government's Exhibit 10C, these are 16 the edits you got back, correct? 17 A That's correct. 18 Q And can we agree there are far more edits on here than just 19 the names of the two agents, correct? 20 A There's other edits on there. 21 Q Was it typical that you would get lots of edits back from 22 Gene Pedraza when he was the one reviewing your MOAs? 23 A Yes. 24 Q Was that frustrating to the agents? 25 A Yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 132 of 311721 1 Q And why was it frustrating? 2 A Because it would take -- you go back and forth with these 3 reports until they were to his liking, and it seemed like the 4 corrections were -- some of them were not needed. 5 times where he would even correct some of his own edits in 6 there. 7 Q 8 not only edited something, but filled in some suggested 9 language? You see at Have you -- did you ever have any occur with you where he 10 A Where he made corrections? 11 Yes. 12 Q 13 correct? 14 A Yes. 15 Q So in this one, you agree once we get -- he's editing out 16 like, "she repeatedly lied to DHS-OIG concerning," and he's 17 added in, correct, the location of the I-94 and Social Security 18 card; is that right? 19 did you interpret it? 20 A 21 revised it. 22 could have -- I mean, the underlining are also edits that he 23 makes. 24 Q 25 it says "SA Gomez and Joe Blow," he clearly knew who the three Right. Yes. Or inputted information? So that was a fairly typical editing process too, The underlines are things he's added? How There was some -- I mean, that -- he may have changed it, I don't know exactly what he put in there. Right, right. But he So once we get to the -- to two names where Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 133 of 311722 1 agents were who were involved, right? 2 Gomez. 3 Saenz, correct? 4 A 5 Rodriguez were the ones that returned her to Mexico. 6 Q 7 that it was you, Marco Rodriguez, Della Saenz, correct? 8 there were three agents. 9 three agents involved with the source that morning. He knew it was Marco Rodriguez. He knew it was Della He -- the defendant knew that Della Saenz and Marco In the room that morning, he certainly knew, we can agree, 10 A Yes. 11 Q Thank you. My simple question is that there were wanted to just add names in there, he knew who the names were. 14 MR. COONEY: 15 THE COURT: 16 MR. COONEY: Objection. Sustained. How is he supposed to suspect -- 17 BY MR. EASTEPP 18 Q Now, there was not somebody named Joe Blow, correct? 19 A No. 20 Q Right. 21 it, that's just a placeholder? You understood that to be -- or did you understand 22 MR. COONEY: 23 THE COURT: 24 25 That So in this edit where it says "SA Gomez and Joe Blow," if he 12 13 He knew it was Roland Objection. Overruled. Argumentative as to what it is. He can answer what he understood. THE WITNESS: I understood -- when he put Joe Blow in Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 134 of 311723 1 there I understood it as him being difficult and somewhat 2 arrogant and chastising the report. 3 it. 4 BY MR. EASTEPP: 5 Q 6 You think he's just jacking with you. 7 A 8 knew he didn't want Joe Blow in the report. 9 Q That's the way I understood So you didn't take it as a suggestion for you to change it. Well, he took out the names. I knew he wanted that -- I Well, if he's jacking with you, how didn't you know he's 10 just jacking with you about the whole thing? 11 A On this report? 12 Q Right. 13 A On the edits? 14 After I saw "SA Gomez and Joe Blow," I approached him on it. 15 asked him -- I told him that's not how it happened. 16 Q Is there a tape recording of that? 17 A No. 18 Q So it's just your memory? 19 A Yes. 20 Q So, Mr. Starnes, could you put the next version up? On the editings. Because we -- I had talked to him about it. It's come back to you. 21 I You're now -- you've done edits and 22 sending it back to him, correct? 23 A Yes. 24 Q Okay. 25 didn't finalize a document and take all the edits back. And it's clear here that what you sent him back, you You're Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 135 of 311724 1 sending him a document that's still in the editing process, 2 correct? 3 A 4 knew what he wanted to change in there, so I made sure of that. 5 Q 6 edits are in there. 7 and put in a file in this form. 8 A But he finalized it afterwards. 9 Q When you sent it to him, is my question. It still shows all the edits. It shows the edits, but he would just, you know -- I already The point is this is not in final form, right? 10 sent, correct? 11 A Yes. 12 Q Thank you. Because the This wouldn't have been printed and signed This version you This version you sent, correct? It still has the edits, meaning it's not final, ready to be 13 14 printed, is it? 15 A It's still not final and ready to be edited. 16 Q Right. 17 yourself. 18 the word processing program, correct? 19 A I changed Joe Blow and inputted Della Saenz in there. 20 Q Right. 21 that with the word processing program? 22 A Yes. 23 Q But again, the point is, this is not yet in final form? 24 A No, it's not in final form. 25 Q Right. And this shows you still left Joe Blow in there You just struck it with an editing, which is part of But the line we see now through Joe Blow, you did Then you get it back. You've sent it to him in Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 136 of 311725 1 final form? That's what this is showing? 2 A That is showing that he's returning it saying it's okay. 3 Q In the middle, though, "Check it out. 4 A Okay. 5 Q That's coming from you? 6 A Yes, that's coming from me. 7 Q And at the top, it's coming back from him. 8 week later. 9 final form, right? See what you think." Again this is a GTG as we know means good to go, meaning it's in 10 A That's correct. 11 Q So can we see the final? So it's coming back to you again -- so now according to the 12 13 emails, you've gotten it back in final form and you've removed 14 all the edits, correct, to put it in final form? 15 A 16 I, you know, went ahead and accepted the changes on the 17 document. 18 says accept -- you know, you accept the changes. 19 Q And it makes the edits go away. 20 A Yeah, but I don't know -- I can't remember if he did it or 21 if I did it. 22 Q Once this is done, do you recall that you printed it? 23 A Yes. 24 Q Okay. 25 A In the office. I don't remember if I received it from him like that or if Because there's a function on where that says -- it Where did you print it? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 137 of 311726 1 Q But, I mean, did you have a printer inside your office, or 2 was it like at the copy machine, or where would that have 3 occurred? 4 A I had a printer in my office. 5 Q I'm just trying to ask where you printed it. 6 A Yeah. 7 Q So you likely printed it in your office? 8 A I likely printed it in my office. 9 Q Okay. I had a printer in my office. What would you have done with it after you printed 10 it? 11 A Signed it. 12 Q And you would have typed the date May 2nd, 2011, correct? 13 A Yes, or that -- yeah. 14 by him too. 15 2011. 16 Q 17 right? 18 A Backdating. 19 Q Was that common? 20 A It's common in -- yeah, I mean, in any office I would 21 assume, I mean, or places I've worked at. 22 backdated. 23 Q 24 then, correct, of May 2nd as purported? 25 A I mean, it could have been a change I mean, I put -- I signed that it was on May 2nd, We know that that's likely not an accurate date, though, Reports are sometimes So you -- we know you likely didn't sign it on this date No. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 138 of 311727 1 Q What would you have done with it after you signed it? 2 A I would have either taken it to the defendant or put it in 3 the defendant's box, his mailbox in the office for him to sign 4 it when he has a chance. 5 Q 6 go into Gene Pedraza's box like the copy room area? 7 A Yes. 8 Q Okay. 9 presence, correct? Right. Which was a fairly common thing, right, that these So when he signed it, he signed it outside your 10 A I really don't remember. I may have taken it to him, or I 11 may have placed it in his box. 12 Q 13 memory of handing it to him and watching him sign it, correct? 14 A I have no memory of watching him sign it, no. 15 Q So you don't know if he signed it with a stack of others or 16 by itself, do you? 17 A I don't know. 18 Q And after it was signed, what would have happened to it? 19 A It would have been -- you know, I would have started the 20 other report or, you know, it would have been -- I don't 21 remember at what time that report was completed along with the 22 AROI. 23 closing the case or to complete the AROI, or the AROI -- I might 24 have started the AROI once this one was done. 25 Q I don't remember. But you have no -- clearly by that answer, you have no So either that might have been the final step in the But in any event, that's all got to be compiled together Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 139 of 311728 1 because it needs to go to headquarters, correct? 2 A Yes, sir. 3 Q Let me show you Government's Exhibit 10. 4 this version? 5 It's Bates -- Government's Exhibit 10, do you see your 6 signature? 7 A Yes. 8 Q It says 5/26/11? 9 A That's correct. 10 Q Would you think that you signed this one on the actual date 11 you printed it? 12 A Printed which one? 13 Q 5/26/11, this form. 14 A This report? 15 Q Right. 16 A Yes. 17 Q You don't think this is backdated; that this is likely the 18 date? 19 A I believe -- yeah, more than likely it's that date. 20 Q Okay. 21 A Yes, sir. 22 Q He's dated it the same date, correct? 23 A Yes. 24 Q And you do recognize it as the AROI for this source, 25 correct? I'll show you. Do you recognize Do you recognize your signature? And you recognize Gene Pedraza's signature, correct? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 140 of 311729 1 A Yes. 2 Q All right. 3 26617 out of that exhibit. 4 carried over to a couple of paragraphs. 5 A Yes, sir. 6 Q All right. 7 on this particular page, if we go to the second sentence, it 8 says, correct, "DHS-OIG escorted" and that's the source's 9 number, the MCA-CI-035, correct? And if we go to the next Bates page, which is You see all that's on this page, it Do you see that? Now looking at this -- the only full paragraph 10 A That is correct. 11 Q So in lieu of putting her name, for federal law enforcement 12 purposes, they're coded, correct? 13 A That is correct. 14 Q So that's who it's referring to is the same woman source 15 we've been talking about. 16 "to Hidalgo port of entry and observed him/her returned to 17 Mexico," correct? 18 A Yes. 19 Q That's completely accurate, is it not? 20 A That DHS-OIG, the agency, yeah, we reported it -- we 21 escorted her back to the -- to the port of entry. 22 Q 23 completely accurate thing as to what occurred that day, at least 24 in the AROI portion of this report? 25 A All right. "So DHS-OIG escorted" I'll say her So headquarters is being told in the AROI a In the AROI portion, yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 141 of 311730 1 Q All right. So somebody would have to look, if we look to 2 the exhibits which are on the next Bates page of 28618, they're 3 exhibits that go with an AROI? 4 A That is -- yes. 5 Q Right. 6 about? 7 A Yes. 8 Q And if we look down to No. 4, this is going to be the MOA 9 we're talking about? And you recognize this page as that's what this is 10 A When we deactivated the source, yes. 11 Q It's going to be the one we had up, the final form that has 12 Roland Gomez and Della Saenz's name there; is that correct? 13 A That is correct. 14 Q So somebody would have to -- after reading the portion that 15 simply was completely accurate, that just the agency got her out 16 of the country, would have to go and look into that report, 17 correct, to see who the names were that escorted her? 18 A Well, that's why the exhibits are attached to it. 19 Q Right. 20 A So if they want to -- if they want to see who actually took 21 them, they can read the particular exhibit, the memorandum. 22 Q 23 the AROI, the purpose of that that morning and the purpose for 24 the agency was -- the agency was revoking her right to be in 25 this country that they had agreed to, and she's got to leave the But you agree with me just like it says in the paragraph on Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 142 of 311731 1 country? 2 A The -- 3 Q It was the agency's decision. 4 A Yes, that it was the agency's decision. 5 Q Right. 6 A Yes. 7 Q So -- and again, as I showed, by the time this is all 8 finished, it's nearly a month after the events. 9 A As reflected on the AROI, correct? That goes back to how getting reports approved by Gene, how 10 you would go back and forth. That just -- you know, that goes 11 back to that. 12 Q 13 saying it's from April 29th to May 26th. 14 A And I'm telling you what -- yeah. 15 Q That's all my question is. 16 after that, didn't you? Special Agent Gomez, it's not a criticism. 17 THE COURT: 18 MR. EASTEPP: 19 THE COURT: 20 MR. EASTEPP: 21 THE COURT: 22 MR. EASTEPP: 23 THE COURT: Okay. I'm just simply Yes. You kind of forgot about it Mr. Eastepp, you at a starting place? Yes, sir. This is a good point. Stopping place? Starting place, whatever. Yes, sir. Are you at a place? Yes, sir, I am. All right. A transition point. Ladies and gentlemen, it's a 24 little bit after 12:30. Why don't -- let's try to be back here 25 at 1:45 so we can start promptly then. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 143 of 311732 1 (Jury leaves courtroom) THE COURT: 2 3 Agent, you can step down. Let me, before y'all break, I've been up here reading cases 4 and reading. Having reread all the recent line of Crawford 5 cases and having reread the case law on machine generated 6 information, I'm pretty convinced that my ruling, if not 7 100 percent correct, is at least fair. 8 that basically says machine generated information doesn't 9 implicate hearsay, doesn't implicate the confrontation clause, I know there's some law 10 but -- and it's really a matter of authentication more than it's 11 a matter of confrontation or hearsay. 12 I think in this case, it's a little bit of both, because the 13 date in this case, I mean, when I submit the charge, I mean, 14 it's going to have in there, you know, "You will note the 15 indictment charges the offense was committed on or about a 16 specific date," and the government doesn't have to prove that 17 date, you know, as long as it's a date reasonably near that 18 date. 19 video, at least in my mind, somewhat testimonial. 20 Well, that's -- I mean, that makes the date in that And so my ruling -- I'm not changing the ruling I announced 21 earlier. I'm just basically reaffirming it and putting on the 22 record why. 23 issue or whether you characterize it as an authentication issue, 24 no one can authenticate -- and I'm basing this not only on what 25 I've read here today, but, I mean -- but also on what we talked Whether you characterize it as a confrontation Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 144 of 311733 1 on last night and the limited knowledge that Agent Green has, no 2 one can authenticate the date and time. 3 And even given the defendant's basically stipulation that he 4 agrees with the authentication of the actual video, he didn't 5 stipulate that the time and the date were authenticated. 6 don't think, at least according to what the government has told 7 me, that they have any witness that can authenticate it. 8 the government offers the video, I'm going to allow the video in 9 without the date and time. And I So if And then if they have other evidence 10 they want to bring up that helps them pinpoint that date and 11 time, as long as it's otherwise admissible, that's fine with me. 12 But I'm not allowing the video with the date and time to come 13 into evidence. 14 MR. COONEY: Just so I understand Your Honor's ruling 15 and as we discussed this morning, we could, for example, put an 16 agent on to say -- essentially to voice we assert that this is 17 January 25 for the following reasons. 18 THE COURT: 19 MR. COONEY: 20 THE COURT: "And here's why. We've watched it." Right. "They go in and out here. We have the 21 records" in whatever exhibit it is "that shows when the card key 22 entries came in and out. 23 I will allow that testimony. 24 MR. COONEY: 25 THE COURT: It matches up with the video." Yeah, Appreciate it. But I'm not going to allow the video in with Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 145 of 311734 1 the date and time. 2 All right. 3 (Recess taken from 12:31 to 1:54.) THE COURT: 4 5 Let's break for lunch. All right. waiting on a juror. 6 Counsel, are we ready? We were He's here now. (Jury enters courtroom) THE COURT: 7 All right. 8 Agent, be seated. 9 Mr. Eastepp? MR. EASTEPP: 10 Ladies and gentlemen, be seated. Thank you, Judge. 11 BY MR. EASTEPP 12 Q 13 that these events occurred when you made the MOA. 14 came to work at the -- at the OIG, what was your immediately 15 prior job? 16 A 17 Office. 18 Q 19 the jury what the Federal Public Defender's Office is. 20 A 21 the courts to represent people with federal offenses that are 22 indigent, that don't have the financial means to hire an 23 attorney, so the federal judge will appoint a federal public 24 defender to defend them. 25 Q Mr. Gomez, let's kind of freeze frame the day, you know, Before you I was an investigator for the Federal Public Defender's Obviously I know and we all know what that means, but tell The Federal Public Defender are -- it's an office funded by And it has a staff of permanent lawyers, does it not? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 146 of 311735 1 A Yes, it does. 2 Q And what's the role of an investigator in assisting those 3 permanent lawyers? 4 A 5 needs you to do. 6 It could -- you know, your title is an investigator, but it's 7 whatever to assist them in their case. 8 Q 9 witness or whatever might be needed, correct? It's whatever -- basically whatever the -- the attorney I mean, whatever the attorney wants you to do. Helping them put their cases together or track down a 10 A Yes. 11 Q And how many years were you there? 12 A Close to five years. 13 Q And the OIG is on the second floor of the Bentsen Tower, the 14 McAllen Federal Courthouse, correct? 15 A Yes, sir. 16 Q Public defender on four or five? 17 A They were on the 4th floor. 18 Q 4th floor, right. 19 is the head lawyer there? 20 A Yes. 21 Q And there are other lawyers there that were probably there 22 before you started and were there when you left, correct? 23 A That is correct. 24 Q So they're just two floors above you. 25 A Yes. And the head of it is -- Tom Lindenmuth Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 147 of 311736 1 Q Did you ever think to call any of those lawyers and "let me 2 run something by you" before you prepared these reports? 3 A No, I didn't. 4 Q Okay. 5 A They're not allowed to give legal advice, you know. 6 Q Some practical advice. 7 lawyer, right? 8 A 9 defense attorneys and they're, you know, required by the Court Would they have taken your call? Sometimes legal advice is go see a Yes, it's go see a lawyer, but they don't -- I mean, they're 10 to represent their clients. 11 work. 12 Q 13 as fraudulent was something if they were a lawyer they would 14 want to know? 15 A Yes. 16 Q And you were aware of that as an investigator, that that 17 could have been an important thing in a criminal case? 18 A It could have been important. 19 Q Right. 20 is the point. 21 A No, I didn't. 22 Q All right. 23 just put it out of your mind? 24 A After the report was completed and the case was closed? 25 Q Right. Right. They're not allowed to do outside But having a document pop up in one of their cases But that never -- you never reached out to anybody, So after these -- these events, fair to say you After the May 26th, 2011, AROI was signed, you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 148 of 311737 1 didn't think about it again? 2 A No, not really. 3 Q Okay. 4 A Because the case was closed, you know. 5 Q But it was not gnawing at your gut that you had participated 6 in this thing? 7 A 8 be done. 9 the policy and procedure. And why not? Well, I was -- you know, I was told that's the way it had to I was somewhat manipulated as to believing that was That, I mean, when you're told 10 headquarters wants it that way, you're somewhat -- in hindsight 11 you don't think it's right, but you end up -- I mean, you kind 12 of feel like that's how it had to be done. 13 Q 14 headquarters wants your name just on the report. 15 A Yes. 16 Q So you're not even thinking about it when comes time for the 17 inspection to roll around that fall, correct? 18 A Yeah, I had forgot. 19 Q And could I ask you to pull the mic? 20 A Sure. 21 Q Fair to say too before we start into the inspection that the 22 events that occurred on April the 29th and the days following up 23 to May 26th kind of date from the interview to the day the AROI 24 is done, none of that had anything to do with the inspection, 25 did it? And headquarters wants your name on it could also mean Sorry. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 149 of 311738 1 A No. 2 Q Did you even know in April or early May that an inspection 3 was coming in the fall? 4 A 5 what I understood is like this inspection was to happen along -- 6 I mean like a lot sooner than what it did, but it kept on being 7 put off. 8 Q 9 mind. There was -- you know, I mean, we had heard maybe. But from So at that time I really don't remember. So again, the thing that happened was fairly minute in your You weren't thinking about it, changing the names in an 10 MOA? 11 A I thought that, I mean, that was the way it had to be done. 12 Q But, no. 13 A I had forgot about it. 14 Q What was the morale of the office like leading into the 15 inspection? 16 A 17 know. 18 know, the way the -- the leadership we had. 19 Q 20 disgruntled, high-strung? 21 A Yes. 22 Q Describing the mood, the morale of the office? 23 A Yes. 24 Q And is that because, in your mind, of Gene Pedraza's 25 leadership or lack thereof and Jody Warren's leadership or lack After it's done, you're not thinking about it? So immediately before the inspection. It was down. It was -- it was -- you know, it was poor, you You know, a lot of agents were unhappy with the -- you Do you ever recall using the phrase intense, unhappy, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 150 of 311739 1 thereof? 2 A Yes. 3 Q Were the agents hopeful that something was going to be done 4 about the leadership of the office via this inspection? 5 A 6 you know, they -- you know, they figured, you know, some kind of 7 action would be taken. 8 Q 9 were -- y'all being special agents were talking among yourselves Well, they were just reporting what -- how they felt. And, Is it a fair assumption based on that answer that y'all 10 about the upcoming inspection and Gene and Jody's leadership? 11 A 12 Everybody knew we were, I mean, unhappy amongst each other. 13 know, we were -- we were -- some of us were pretty close, and we 14 were -- you know, we would -- everybody could sense the 15 frustrations from one another due to the management. 16 Q 17 also disgruntled? 18 A Yes. 19 Q Did y'all, being two of the kind of veterans in the office, 20 ever express that to each other? 21 A I wasn't a veteran. 22 Q Might not have been a veteran of the office, I'm sorry. 23 Veteran in the law enforcement world because you had had all 24 your experience at the public defender. 25 A Well, it wasn't uncommon that -- I mean, people knew. You Would Marco Rodriguez have also been one of them that was I wasn't in law enforcement at the public defender's office. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 151 of 311740 1 Q I thought you were an investigator. 2 A I was a legal investigator. 3 Q Didn't carry a gun? 4 A No. 5 Q Okay. 6 investigators that are authorized to carry guns, right? 7 A Not that I'm -- not in the Federal Public Defender's Office. 8 Q I'm sorry. 9 office, but my mistake. Because some public defenders, they do have I thought they did, at least in the Houston So even though you couldn't carry a gun, you still were 10 11 doing somewhat similar work in the Federal Public Defenders in 12 your role as a criminal investigator as you did at the OIG, 13 right? 14 A We were doing legal defense work. 15 Q Right. 16 and Marco talked about this leadership issue at times. 17 A Yes, we did. 18 Q Okay. 19 James Izzard from Washington? 20 A Yes, I do. 21 Q Did you understand who he was and his role? 22 A Yes, I did. 23 Q Was it some secret to you or anybody else, you think, who he 24 was and what his role was? 25 A That's what I did. But still, the point -- and then I'll move on. You Do you remember being interviewed by Special Agent From what I -- he was an inspector conducting -- he was part Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 152 of 311741 1 of the inspection team conducting the inspection. 2 Q And I assume you had a sit down with him? 3 A Yes, I did. 4 Q Where did that occur? 5 A I don't believe it was in my office. 6 but not in my particular office. 7 Q Somewhere within the McAllen office? 8 A Somewhere within the McAllen office. 9 Q In the suite of rooms or -- 10 A Yes. 11 Q How long did you meet with him? 12 A 20, 30 minutes or so. 13 Q Pleasant conversation? 14 A Well, I voiced to him, I mean, you know, his -- you know, 15 when he asked me about the morale, I mean, I told him about 16 that. 17 Q 18 professional to you in the way he was treating you that day? 19 A Yes, he was professional. 20 Q In fact, did he seem to be somebody who had empathy and 21 cared and concerned about hearing whatever you had to say versus 22 going, "I don't want to hear that"? 23 A I felt that way. 24 Q That he was -- had empathy and his ears were open? 25 A He sounded concerned. In your office, or somewhere else? It was in the office, I mean, that wasn't pleasant, I mean. Bad question on my part. Let me back up. Was he Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 153 of 311742 1 Q So you -- did you understand he was there to talk about 2 morale, or that was his function within the inspection? 3 A 4 questions regarding that, you know, whatever he wanted to find 5 out. 6 Q 7 questions, or was it pretty broad and him -- meaning like he 8 just said something like, "Tell me what you think about this 9 office." My understanding was he was there to just, you know, ask you Right. And when you sat down, did he start asking 10 A No, he kind of sat down; you know, he talked about what 11 he -- you know, what he was doing. 12 I mean he had like a little introduction to himself, his name, 13 stuff like that. 14 morale in the office. 15 morale? 16 Q What did you respond to those issues? 17 A I told him it was an unhappy, you know, hostile, you know, 18 disgruntled, disgusting work environment. 19 Q 20 tell me why"? 21 A 22 remember if I gave him examples. 23 was, but I don't remember the examples or anything like that. 24 Q Do you recall he was taking notes? 25 A Yes. And he asked me, you know -- And then he asked me, you know, about the How are things? Did you give him specific examples? I don't -- I don't remember. How's management? How's Did he go like, "Well, I mean, I really don't I remember telling him what it Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 154 of 311743 1 Q Did you know if he had a form he was using or if he was just 2 using a legal pad to take notes? 3 A 4 was a form or anything. 5 talking years back. 6 Q And this went on for about 15 minutes? 7 A 15, 20, 30 minutes it could have been. 8 to 30 minutes, I would say. 9 Q It looked like he was just taking notes. I don't remember. I don't think it I mean, you're I don't think -- 20 In that -- in that time period, did he ever cut you off or 10 not give you an opportunity to say whatever you wanted to say? 11 A 12 but I did feel like he was in a hurry. 13 and he might have been frustrated from all the inspections -- I 14 mean the interviews that he had done and, you know, so I felt 15 like he was in a hurry. 16 Q But he still gave you 20 to 30 minutes? 17 A Yes. 18 Q And they were only there a short -- they, being the 19 inspectors, there a short period of time that week, right? 20 you recall that? 21 A It was about a week or so or some days that they were there. 22 Q Where they flew in and flew out essentially and did the 23 inspection in between. 24 A What do you mean flew in? 25 Q Flew in from Washington, did the inspection, flew back out. I didn't -- I don't -- wouldn't say felt like he cut me off, It was late in the day, Do Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 155 of 311744 1 A Yes. 2 Q I mean, they weren't down here a month or something. 3 A No, no. 4 Q Okay. 5 this MOA, did you? 6 A No. 7 Q And, in fact, in the days following or even weeks following, 8 you didn't bring it up to anybody in authority, did you? 9 A No. 10 Q And it's not until this advocates lawyer -- activist lawyer 11 calls you about saying, "Hi, I represent the source," that it 12 popped back up again? 13 A That the case popped up again, yes. 14 Q Right. 15 tell you about back on the source and her complaints and things. 16 But the activist lawyer calling you, did that show she's not 17 letting go of trying to get you in trouble? 18 A Yeah, I guess you can say so. 19 Q Right. 20 to get that call out of the blue from this activist lawyer. 21 A Well, you're not -- I mean, it was a surprise, you know. 22 Q But you duly reported it to Special Agent Green. 23 A Yes. 24 Q And then Special Agent Green did what? 25 what? In all that time you talked, you never brought up And I'm going to ask a very limited question just to Yes. I mean, it was probably a little bit uncomfortable Asked you to do Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 156 of 311745 1 A He -- he told me: Okay. Let me talk to -- Kirk Beauchamp 2 was -- that was -- Kirk Beauchamp was his boss, the associate 3 special agent in charge. 4 Q Well, actually he's the regional special agent in charge. 5 A Is he now? 6 just know he was -- 7 Q He's above Dave Green. 8 A He was above David Green. 9 Q And he's in Houston, Mr. Beauchamp? 10 A Yes. 11 Q Yeah. 12 conversation they had as managers, what were you asked to do? 13 A 14 well, he wanted me to write a detailed report on the case so 15 he's prepared, just so he's aware of it, of the case, the 16 circumstances. 17 Q Where was the case file? 18 A It was in the McAllen office. 19 Q Okay. 20 A Yes. 21 Q It had not been archived or sent to Washington or anything 22 like that? 23 A No. 24 Q When you retrieved -- did you personally retrieve it, or did 25 you have somebody retrieve it for you? Or I don't remember what his title was. But I And he goes -- Did I answer your question? What did Special Agent Green -- after the -- whatever David Green told me that Kirk Beauchamp requested that I -- The blue file was still in McAllen? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 157 of 311746 1 A I don't believe -- I think -- I don't believe -- it may have 2 been our intern that went in there and got it. 3 Q Did you have access to the file room? 4 A I don't believe we had -- we were supposed to go in the file 5 room, you know. 6 Q 7 you asked somebody, whether it was the intern. 8 A Yes. 9 Q Maybe Ms. Hinojosa? 10 A No, I think it was -- I believe it was the intern. 11 Q But it ends up on your desk or in your hands? 12 A Yes. 13 Q Was everything in it that you had remembered being in it the 14 last time you had seen it? 15 A I mean, the paperwork was in there, yes. 16 Q This MOA was in there, for example? 17 A The report, the MOAs, you know, that I had -- you know, the 18 MOAs were in there. 19 Q 20 file that says Roland Gomez and Della Saenz. 21 A 22 were in the file. 23 Q Still sitting there? 24 A Yes, sir. 25 Q Okay. So again, I'm not trying to make a big point. Right. It's likely Nobody has gone and stolen the original out of the No, all the MOAs that were written, typed up, signed, they What did you do once you got the file? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 158 of 311747 1 A I started writing the report. According to -- you know, I 2 started writing the detailed report by refreshing my memory with 3 the MOAs that were in there. 4 Q 5 events? 6 A 7 management, my new leaders, and I just -- I -- you know, there 8 was a lot of ac -- I was going to provide, you know, information 9 from the very beginning of the case all the way to the very end, Why would you have needed to refresh your memory on these Well, I wanted a detailed report. It was going to my new 10 so I wanted to refresh my memory as to activity that was on the 11 case, you know; operations that we did, what have you. 12 mean -- 13 Q 14 be? 15 A I wanted to be specific. 16 Q Okay. I Dates and times, and you trying to be as accurate as you can That's all I was asking. Now, when is it, do you remember, after you get the file 17 18 that you refresh your memory about the MOA having Roland Gomez 19 and Della Saenz escorted? 20 A 21 the report, I saw that that was inaccurate. 22 Q Okay. 23 A It was -- the information was not correct. 24 Q And what did you do once you realized that? 25 A I, you know, I -- it's -- I told myself I wasn't going to While I was writing the report. I mean, as I was writing It was inaccurate? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 159 of 311748 1 let my -- I wasn't going to submit that information to my new 2 management. 3 David Green. 4 Q Dave Green. 5 A Yes. 6 Q And did he ask you to prepare a report based on that? 7 A No, he asked for the number of that advocacy guy. 8 goes, "I'll get back to you." 9 Q Okay. 10 A No, no. 11 Q Yes, sir. 12 A What were you saying again? 13 Q These were the sequence, and it's your memory, so correct 14 me. 15 A Okay. 16 Q -- which is the lawyer calls you, you notify Green, Green 17 and Beauchamp end up telling you to draft a report. 18 file, you notice in the file it refreshes your memory about the 19 Roland Gomez and Della Saenz. 20 A Yes. 21 Q What did you do at that point is I think where the confusion 22 came in. 23 A 24 that to my new management, so I reached out to David Green and 25 told him about it. And, you know, I reached out to my supervisor, And you told him about it? And he And did you keep writing the report? I'm sorry. I lost -- can we go back? This is what I think that you said -- Yeah. You get the I thought to myself that I wasn't going to submit Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 160 of 311749 1 Q Were you asked by Special Agent Green to prepare any 2 additional reports or just to keep working on the one you were 3 already tasked to do? 4 A I don't remember. 5 Q You ended up actually drafting a report, did you not? 6 A I drafted the report and submitted it to David Green. 7 Q All right. 8 this issue that Gene Pedraza told you to change an MOA? 9 A I don't remember. 10 Q You've not seen, in preparation of your testimony, those -- 11 A The report that was -- 12 Q Right. 13 A -- generated to -- regarding the case? 14 Q Right. 15 A No, I haven't seen it. 16 Q Okay. 17 A No. 18 Q Do you think you put it in there? 19 A It's possible. 20 Q Do you remember having conversations with Dave Green after 21 he gets the report about you didn't own it? 22 A I don't remember. 23 Q So even at that point, if your new supervisors are aware 24 you're not being truthful about it, you don't remember that? 25 A What? And in that report, you never once mentioned I may have. I mean, I don't remember. And you've not looked at any notes regarding that? I don't know. I mean, I don't remember. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 161 of 311750 1 Q Your new supervisors are saying you're not being truthful 2 about it. 3 A 4 detailed report, I had the correct information that -- that 5 Marco and Della were the ones that took her to the bridge. 6 Q 7 Special Agent Beauchamp and for Dave Green. 8 A Yes. 9 Q You never once mentioned in that the MOA event, did you? 10 A What? 11 Q That Gene Pedraza asked you to make a change that you didn't 12 really take her to the bridge. 13 A 14 to write that down. 15 him about the situation. 16 Q 17 you've told Dave Green? 18 A What? 19 Q You told Dave Green that the MOA was incorrect in the file. 20 A I had already -- once I saw the information was inaccurate, 21 was not correct, I called Dave Green. 22 gets back to me, tells me to write that report. 23 report, I tell him that I -- I mean that Marco Rodriguez and 24 Della Saenz were the ones that took her to the bridge. 25 Q I had already told David Green about it. So in that I'm talking about the report that's being drafted for Did I not mention what? Like I said, I don't know -- I don't remember if he told me Okay. I don't remember. All I remember telling I don't remember. And that being "him" in that sentence was you meant I told him about it. And have you seen a copy of that report? In that new He Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 162 of 311751 1 A You already asked me that. MR. COONEY: 2 3 Objection. This has been asked and answered whether he's seen the report in preparation -THE COURT: 4 Sustained. 5 BY MR. EASTEPP 6 Q But it's your memory you did that? 7 A It's my memory what? 8 Q That you put it in the report. MR. COONEY: 9 THE COURT: 10 Objection. Asked and answered. Sustained. 11 BY MR. EASTEPP 12 Q 13 anybody within your agency? 14 A I don't believe so. 15 Q They were letting you just do your job? 16 A Yes, they were. 17 my job. 18 Q Even after you made that admission to them? 19 A Yes. 20 Q When is the first time you had contact with the FBI about 21 this investigation? 22 A About my report? 23 Q Uh-huh. 24 else? 25 A After that, did -- were you questioned about the events by Yes. I mean, yeah, they were. I was still doing The MOA? Had the FBI questioned you about anything Well, you said investigation. I mean, this is a broad Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 163 of 311752 1 investigation. You know, there's several counts here. I mean, 2 what -- what part of the investigation are you talking about? 3 My report? 4 Q 5 MOA? 6 A 7 within that week or so. 8 don't -- 9 Q So all the way back into October? 10 A No. 11 to David Green with the correct information, like three or four 12 days later I -- or I get it -- within that week I get a call 13 from FBI, and they want to meet regarding that report. 14 Q 15 Green occurred so we can figure out where the interview 16 occurred? 17 A What do you mean? 18 Q When did it occur? 19 A Late January or so. 20 Q Of what year? 21 A 2012. 22 Q So it's sometime after that you talked to the FBI for the 23 first time? 24 A Yeah, like three or four days after I submitted that report. 25 Q And who with the FBI interviewed you? When did the FBI first interview you about these MOA -- this It might have been three to four days later or so. I mean, shortly after. After I did the report. It was I mean, I After I submitted the report Do you remember about then when the conversation with Dave Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 164 of 311753 1 A I'm sorry? 2 Q Who with the FBI interviewed you? 3 A It was -- it was Freddy Vela and Bob Kruka. 4 Q Krupa? 5 A Krupa. 6 Q Had you met Special Agent Vela before? 7 A No. 8 Q Okay. 9 A No. 10 Q Not when you were with the PD's office? 11 A With the who's office? 12 Q When you were at the Public Defender's Office? 13 A No, I hadn't met them before. 14 Q He was at one point assigned to McAllen. 15 asked. 16 A I didn't know Freddy, no. 17 Q And did they -- did you know what they wanted to see you 18 about? 19 A 20 kind of figured it was the MOA or so. 21 Q 22 interviewed? 23 A Yes. 24 Q And did it become clear to you that that was the purpose of 25 the interview? Had you met Special Agent Krupa before? That's why I But -- I thought it was about the report, you know, the MOA. I Once you got into the interview, did you consent to be Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 165 of 311754 1 A Yes. For them to interview me regarding the MOA? 2 Q Yes, sir. 3 A Yes. 4 what the interview was about. 5 Q 6 what it was about? 7 A Yes. 8 Q How long did that interview last? 9 A It wasn't very long. I mean, I knew, I mean, that -- I felt that that's My question was then once it started, that was clear that's Maybe 30 minutes or so. 20, 30 10 minutes. Yeah, it wasn't very long. 11 Q 12 right? 13 A Yes. 14 Q Okay. 15 whether you were a witness or a target at that time? 16 A 17 the right thing and cooperate with them and tell them what 18 happened. 19 Q 20 target?" 21 A No, didn't ask them that. 22 Q "What's going to happen to me?" 23 A No, I didn't. 24 Q How many times from that first interview until today have 25 you discussed these events with either the FBI or a grand jury And you discussed these events about the MOA with them, Were you aware of whether they were treating you as I wasn't -- I mean, I wasn't aware. And you didn't ask that question? I was just trying to do "Am I a witness? Am I a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 166 of 311755 1 or the Department of Justice lawyers? 2 A 3 and dealt with FBI and DOJs and grand juries? 4 nine times or so. 5 Q 6 2012 in this first interview until today, now, I've counted 7 seven 302s, but some of those didn't -- weren't really 8 interviews. From the time of that first interview to now that I've met I mean, it's -- Well, let's work through that then. MR. COONEY: 9 10 I never counted. Seven, eight, From the beginning of Objection, Your Honor, simply to testify and -THE COURT: 11 Sustained. 12 BY MR. EASTEPP 13 Q 14 how many times you've been interviewed. 15 FBI do you remember being interviewed? 16 A 17 times, eight times. 18 Q And they were all -- 19 A Up until now? 20 Q Yes, sir. 21 A It's about -- yeah, I would say six, seven, eight, nine, 22 eight. 23 met with them several times. 24 Q 25 event of that MOA regarding that source? Just trying to expedite it, if you'll help me, Mr. Gomez, of I told you I never counted. It could be five, six, seven I mean -- I don't remember. Okay. How many times at the I never counted. I mean, it was -- I And was it always about these events, meaning the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 167 of 311756 1 A Mainly. 2 Q Did it broaden to talk about other issues in the office 3 beyond this? 4 A Yes. 5 Q Related to the management issues with Gene Pedraza? 6 A Related to -- yes -- well, not to the morale or anything, 7 but to the management, yes. 8 Q All right. 9 A Decisions or -- 10 Q At what point in time did -- well, let me back up. 11 after your first interview is when you went to the Washington 12 grand jury, correct? 13 A Couple of weeks later or so. 14 Q If the transcript shows February 22nd, does that sound 15 right? 16 A 17 was up to President's Day or something like that. 18 Q 19 the lawyers and the agents and talk about what was going to go 20 on in the grand jury? 21 A Yes. 22 Q And then you went into the grand jury. 23 remember being in there? 24 A 25 a little break, like five, ten minutes or so. They did talk about some things before, other stuff. That's about right, yeah. It was -- yeah. Shortly I remember it Before you testified in the grand jury, did you meet with An hour, hour-and-a-half. How long do you You know, I remember them taking Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 168 of 311757 1 Q And you were questioned under oath about these events, 2 correct? 3 A Yes. 4 Q And at that point in time, had you been told yet whether 5 you're considered a witness or a target? 6 A No. 7 Q After you got out of the grand jury, the estimate is maybe 8 six or seven more times you've been interviewed? 9 A That's an estimation, yeah. 10 Q Would that always include a mix of lawyers and agents? 11 A Yes. 12 Q Did most of them occur here in the Valley, or were you going 13 to other places to talk to them? 14 A Here in the Valley. 15 Q Did -- at what point in these meetings did you finally find 16 out you were not going to be prosecuted? 17 A 18 it was, I would say, summer of that year of 2012 when I met with 19 them in the summer. 20 got placed on admin leave. 21 Q 22 in May. 23 A Yes. 24 Q Okay. 25 to be prosecuted do you think you've met with agents? That's fair. It may have been -- it probably -- it may have been -- well, It was maybe about a month or two after I So again, the grand jury in February. You're put on leave Sometime shortly thereafter when it's hot, summertime? How many times after you're told you were not going Do the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 169 of 311758 1 math. You know, subtract the earlier ones and tell me. 2 A How many times did they tell me that? 3 Q No, no, no. 4 after you knew you had immunity? 5 A Three, four times maybe. 6 Q Well, let me ask you. 7 your testimony today, how many times did you meet? 8 A Prior to today, it was twice. 9 Q Okay. 10 A No, I didn't add those two. 11 Q Okay. 12 A I guess you could say. 13 Q We had an earlier pretrial hearing, a routine hearing in 14 this case. 15 A Yes. 16 Q Okay. 17 talked to lawyers or agents? 18 A Maybe once or twice. 19 Q Okay. 20 original? 21 A Yes. 22 Q Okay. 23 A No, no, no, no. 24 those times. 25 Q Okay. How many times have you met with the government Four. In the last week in preparation of Are you adding those two with these other seven? So that adds two more onto it. Were you prepared to testify in it? How many times leading up to that hearing had you Are those one or two that you didn't add into the So that's -Those aren't -- I added -- I'm thinking So the only ones you didn't add into your initial Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 170 of 311759 1 math are these two of the last -- 2 A Were these last two. 3 Q Okay. 4 about nine. 5 So you met like six or five afterwards. 6 A After I got immunity? 7 Q Right. 8 A I would say probably about six or so. 9 Q And every time you've talked, it's been about this issue of Just trying to get the math right. So just -- that's So it's about three before you got immunity or so. Is the math right? 10 this MOA and this Roland Gomez and Della Saenz escorted. 11 one of those has been about that phrase, correct? 12 A Mainly. 13 Q And your deal is from your memory as long as you keep saying 14 that it's Gene Pedraza that told you to do that, you've got a 15 deal? 16 MR. COONEY: 17 THE COURT: Objection. Every That misstates his testimony. Sustained. 18 BY MR. EASTEPP 19 Q What is your deal? 20 A My deal? 21 Q With the government in regard to your testimony. 22 A That as long as I'm truthful with them, that I cooperated 23 and that they -- they find -- throughout the investigation, that 24 they don't find anything else that I did wrong or illegal or so. 25 Q Then you're free and clear? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 171 of 311760 1 A I mean, what was it -- I mean, a verbal agreement, you know. 2 I mean, I'm here right now. 3 anything. 4 Q Pretty good deal, isn't it? 5 A I guess you -- I mean, I wouldn't say -- yeah, I mean. 6 always -- 7 MR. EASTEPP: 8 THE COURT: I haven't been charged with Thank you. I've That's all I have, Judge. Mr. Cooney? REDIRECT EXAMINATION 9 10 BY MR. COONEY 11 Q I just have one or two final questions. Mr. Gomez, you were asked a lot of questions early on by 12 13 Mr. Eastepp about your job and about whether the Department of 14 Justice would write a letter to the Department of Homeland 15 Security about your testimony and things like that. 16 remember those questions early on during your testimony today? 17 A Yes, I remember those questions. 18 Q Has anybody from the prosecution, from the government 19 promised to write you a letter to the Department of Homeland 20 Security when this is all done? 21 A 22 that they have no bearing as to what is going to happen with my 23 job. 24 Q 25 with the government? No. Do you In fact, they've made it clear from the very beginning What is your requirement under the non-prosecution agreement Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 172 of 311761 1 A That I be truthful; that, you know, I continue to provide 2 assistance, and that nothing else is -- nothing else -- you 3 know, no other wrongdoing is found during the course of the 4 investigation. 5 Q Have you been truthful? 6 A Yes. 7 MR. COONEY: No further questions. 8 MR. EASTEPP: 9 THE COURT: All right. 10 THE WITNESS: 11 THE COURT: You may step down, sir. Am I free to leave? You are free to leave. Mr. Kidd, Mr. Cooney, who would be next? 12 MR. KIDD: 13 14 I don't have any questions, Judge. Your Honor, the government is going to call Edwin Castillo to the stand at this time. THE COURT: 15 Mr. Castillo, please. 16 Come right up here, sir. 17 (Witness sworn.) THE COURT: 18 Be seated. EDWIN CASTILLO, 19 20 the witness, having been first duly cautioned and sworn to tell 21 the truth, the whole truth and nothing but the truth, testified 22 as follows: DIRECT EXAMINATION 23 24 BY MR. KIDD 25 Q Good afternoon, Mr. Castillo. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 173 of 311762 1 A Good afternoon. 2 Q Can you please state your full name and spell it for the 3 record. 4 A Edwin Castillo. 5 Q Mr. Castillo, where are you currently employed? 6 A With the Department of Homeland Security-Office of Inspector 7 General. 8 Q And how long have you been employed there? 9 A Since March 2009. 10 Q And what is your job title? 11 A Special agent. 12 Q And at this moment, what is your status with the Department 13 of Homeland Security-Office of Inspector General? 14 A I am on administrative leave. 15 Q And why have you been placed on administrative leave? 16 A Because of the investigation. 17 Q When you say because of the investigation, what do you mean? 18 A Allegations were reported, and the agency decided to place 19 us on administrative leave. 20 Q 21 administrative leave? 22 A I did. 23 Q And what did you report? 24 A I reported that there was a document that was drafted. 25 drafted a document. E-D-W-I-N, Castillo, C-A-S-T-I-L-L-O. Who reported allegations with respect to you being placed on I And at the time, I guess I didn't feel it Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 174 of 311763 1 was -- I didn't think anything of it. And later I guess red 2 flags went off and -- and I felt it should be reported. 3 Q 4 of activity that you believed to be false? 5 A Yes. 6 Q Did you -- at the time you reported that, did you say who 7 direct -- why you drafted that MOA? 8 A Could you repeat the question? 9 Q Yes. Mr. Castillo, did you report that you drafted a memorandum Did you -- at the time you made the report, did you 10 explain the circumstances under which you drafted that MOA? 11 A Yes, I did. 12 Q What were those circumstances? 13 A I was constantly harassed. 14 hostile work environment for me. 15 just -- I mean, I just tried to go through the motions. 16 Q 17 field office directed you to falsify an MOA? 18 A Yes, he did. 19 Q And is it your understanding that it was that allegation 20 that got you suspended or placed on administrative leave? 21 A Yes. 22 Q Mr. Castillo, when did you start at the Department of 23 Homeland Security-Office of Inspector General? 24 A March 2009. 25 Q And when you started at the DHS -- at DHS-OIG in McAllen, It was a -- it was a very I hated to go to work. It was Did you explain that your supervisor at DHS-OIG McAllen Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 175 of 311764 1 who was your supervisor? Who was the boss of the office? 2 A The defendant. 3 Q Now, directing your attention to February of 2011, did the 4 defendant approach you and ask for your assistance on an open 5 criminal investigation? 6 A Yes, he did. 7 Q Do you remember the name of the target in that 8 investigation? 9 A The investigation didn't have a name. It was what we called 10 an unknown, an unknown subject. 11 Q 12 case? 13 A 14 length of time. 15 much in it. 16 Q Did the -- did the investigation end with the number 414? 17 A Yes, it did. 18 Q Do you know the -- what the allegations were that were 19 contained in this criminal investigation? 20 A 21 Customs Border Protection officer that another CBPO was selling 22 fraudulent documents or entry permits. 23 Q And when you say CBPO, what do you mean? 24 A Customs and Border Protection officer. 25 Q So there was an allegation that a Customs and Border Do you remember any identifying characteristics of that That case had been open for a while. I don't remember the It had been open for a while, and there wasn't The allegation was that a border crosser had reported to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 176 of 311765 1 Protections officer was selling visas or immigration papers? 2 A Right, entry documents -- 3 Q Entry documents? 4 A -- of some sort. 5 Q What's an entry document? 6 A An entry document could have been just a border crossing 7 card; you know, a fraudulent border crosser card or something to 8 that effect. 9 Q What did -- when you said you and defendant had a -- did you 10 have a conversation with the defendant about this case? 11 A Yes, I did. 12 Q Can you explain that conversation? 13 A He came into my office, and he said he needed a favor. 14 asked if I would draft an MOA and told me more or less what he 15 wanted on it. 16 him. 17 Q 18 investigative activity? 19 A Yes, it did. 20 Q At the time the defendant asked you to draft that document, 21 did you ask him if he had conducted that investigative activity? 22 A No, I did not ask him. 23 Q Did you ask the defendant if anybody else in the office had 24 conducted that investigate -- criminal investigative activity? 25 A He And I drafted the document, and I emailed it to Did the defendant ask you to draft an MOA that contained No, I did not. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 177 of 311766 1 Q Had you conducted the investigative activity? 2 A No, I did not. 3 Q Did you draft the report? 4 A Yes, I did. 5 Q After you drafted the report, what did you do with it? 6 A I emailed it to him, and later that day -- I don't remember 7 the time span. 8 Q And what did the defendant say when you asked him that? 9 A His response was, you know, he would fix it or clean it up. 10 Q Did you ever see that MOA again? 11 A Later throughout the day he -- he came to my office and he 12 placed it on my desk, and he asked me to sign it or told me to 13 sign it. 14 Q And what did you do at that time? 15 A I signed the document. 16 Q After you signed the document, did you have any concerns 17 about what you had just done? 18 A Yes, I did. 19 Q Why did you have those concerns? 20 A Well, I mean, I didn't perform the investigative activity. 21 I don't know if he had, so it just -- it raised a lot of 22 questions. 23 been possibly committed; so, you know, I felt that it was 24 something that needed to be reported. 25 Q I asked him if it was okay. So I felt, you know, that something wrong had just And you say you thought that something wrong had just been Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 178 of 311767 1 committed. What do you mean? 2 A 3 if anything had been done as far as if he performed the work. 4 didn't ask. 5 Q 6 come in and ask you to draft reports on his behalf? 7 A Was it -- I'm sorry? 8 Q Was it normal to have Defendant come in and ask you to draft 9 reports on his behalf? Well, I mean, at the time I wasn't sure if -- I wasn't sure I didn't perform it. I So it raised questions. Was it normal to have your supervisor or to have Defendant 10 A No, no. He -- that was the very first time I had ever, you 11 know, been asked to do anything like that. 12 Q 13 reports on their behalf? 14 A No. 15 Q Did you go to other agents in the office and ask them to 16 draft reports on your behalf? 17 A No. 18 Q As a general policy, did the agents in the McAllen field 19 office draft their own reports? 20 A Yes. 21 Q Mr. Castillo, I'm showing you what's been previously marked 22 as Government's Exhibit 11B. 23 2011, at 9:34 a.m. 24 Pedraza, the defendant. 25 A Did other defendants ever come to you and ask you to draft Yes. It's an email dated February 10th, It's from you, Edwin Castillo, to Gene Do you recognize this email? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 179 of 311768 1 Q What is it? 2 A It's the email where I sent the MOA. 3 Q Now, I'm going to direct your attention up here at the top 4 where it says "ARO -- AROI short form and efforts to identify 5 the individual." 6 A Yes. 7 Q The MOA we're talking about, you've just discussed here, 8 which one of the two documents up there is that? 9 A The efforts to identify individual. 10 Q What is the second document, the AROI short form? 11 A That's the closing document, the closing report that we use 12 for the investigation. 13 Q Had Defendant also asked you to draft an AROI for this case? 14 A Yes, he did. 15 Q Did that also contain information that you were not -- you 16 had no firsthand knowledge of? 17 A 18 information, the synopsis for the closing report was obtained 19 from the file. 20 the allegation. 21 Q So it's more of a form document? 22 A Right. 23 Q So really when you're saying that defendant asked you to 24 place information in an MOA that you were not aware of, what 25 you're talking about really is that second document, the efforts Does that appear to be two separate documents? We -- there was somewhat of a template for the AROI, and the So that -- I mean, that was correct as based off Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 180 of 311769 1 to identify the individual? 2 A Correct. 3 Q Mr. Castillo, and this is page 2 of Government's 4 Exhibit 11B. 5 A That's the closing report, the AROI. 6 Q And this is the form document you just talked about? 7 A Correct. 8 Q And so just so we're clear, the information contained in the 9 body of the AROI, is that largely taken from the complaint Can you identify this? 10 that's in the -- in the file? 11 A Yes. 12 Q Agent Castillo, we have jumped to page 4 of Government's 13 Exhibit 11B. 14 A That's the MOA. 15 Q Is this the MOA we've been discussing? 16 A Yes. 17 Q And when you said that the defendant had told you what to 18 place into the MOA, can you go ahead and read aloud the 19 information the defendant had asked you to place in the MOA? 20 A Just the information he asked? 21 Q Yes. 22 A "On January 19th, 2010, the DHS-OIG attempted to identify 23 and locate the unknown individual making the allegation. 24 CBPO did not obtain the unknown individual's name or telephone 25 number. Can you identify this for the record? The The unknown individual did not attempt to reestablish Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 181 of 311770 1 communication with the CBPO." 2 Q 3 provided you? 4 A 5 mean, it's what I placed in the draft -- what I drafted. 6 Q 7 that is the information Defendant gave you generally and you 8 wrote it down? 9 A Correct. 10 Q And again, you had done no previous investigative work on 11 this case; is that right? 12 A Correct. 13 Q Now, the top paragraph, the one that starts, "The Department 14 of Homeland Security." 15 A 16 identify our -- the agency first, and then we go into the 17 allegation that's obtained from the file. 18 Q So is that information taken from the opening complaint? 19 A Correct. 20 Q As far as you know, was that information correct? 21 A Uh-huh. 22 Q And where did you get it from? 23 A From the allegation from the file. 24 Q So you came -- this information was already placed in the 25 file? So am I correct that that is the information that defendant I don't remember -- I don't remember the exact words; but, I And so it's your understanding as you sit here today that Where did you get that information? That is from -- that's pretty much a formality. We always Yes, it was. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 182 of 311771 1 A Correct, from the initial complaint. MR. KIDD: 2 I apologize. I called out the wrong page 3 number there. 4 BY MR. KIDD: 5 Q 6 Exhibit 11D, page 3. 7 and identify it for the record? 8 A That is the MOA that he asked me to sign or told me to sign. 9 Q Is this the edited final version of the MOA that you were Agent Castillo, I am pointing you to what is Government's Can you go ahead and take a look at that 10 asked to sign by the defendant? 11 A Yes, it is. 12 Q Mr. Castillo, I'm going to direct your attention to the 13 bottom left-hand portion of the page here. 14 that signature? 15 A That is my signature. 16 Q And directing your attention to the right-hand side there, 17 whose signature is there on the right-hand side? 18 A The defendant's. 19 Q Now, I'm going to direct your attention to the date. 20 dated January 19th, 2010. 21 A No. 22 Q To the best of your recollection, when did you draft this 23 MOA? 24 A I think it was February 2011. 25 Q So that's -- the date there is off by more than a year? Can you identify It's Is that date accurate? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 183 of 311772 1 A Yes. 2 Q Now, Mr. Castillo, you stated a few moments ago that you had 3 sent a draft of the MOA to defendant for review, correct? 4 A Correct. 5 Q And that he had made some edits and brought it back to you? 6 A Yes. 7 Q Okay. 8 brought to you by Defendant; is that correct? 9 A Yes. 10 Q At any time did you compare your draft versus the final to 11 see what edits the defendant had made? 12 A No, I did not. 13 Q Was it your understanding that the defendant had made edits 14 to the draft you had sent him? 15 A It was common. 16 Q And, in fact, earlier you testified that you had asked 17 defendant if he had reviewed your draft, and he had said he was 18 going to clean it up, something to that effect; is that correct? 19 A Yes. 20 Q Now, Agent Castillo, I'm going to direct your attention 21 to -- these are -- what I've done is you've got the Government's 22 Exhibit 11B on the bottom, which is taken from the draft or the 23 email you sent to the defendant; and you have the final MOA, 24 which is Government Exhibit 11D on the top. 25 and read the second paragraph in the bottom exhibit, which is And that you had signed that final MOA that was It was -- I mean, it was standard. Can you go ahead Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 184 of 311773 1 Government's Exhibit 11B? 2 A "On January 19th"? 3 Q Yes. 4 A "The DHS-OIG attempted to identify and locate the unknown 5 individual making the allegation. 6 unknown individual's name or telephone number. 7 individual did not attempt to -- attempt to reestablish 8 communication with the CBPO." 9 Q Is that what you -- you recall drafting in your draft MOA? 10 A Yes. 11 Q Can you -- I'm going to direct your attention to the second 12 paragraph on the top, which is Government's Exhibit 11D, the top 13 exhibit there. 14 A 15 identify and locate the unknown motorist to evaluate the 16 veracity of the allegation. 17 intan -- of tangible leads obtained by Villarreal, the ability 18 to identify the motorist is futile." 19 Q 20 contained in your draft MOA sent to Defendant? 21 A Yes. 22 Q Did you make those edits? 23 A No, I did not. 24 Q Do you know who made those edits? 25 A The defendant. Yes, sir. The CBPO did not obtain the The unknown Can you go ahead and read that? "During the ensuing days and weeks, the DHS-OIG attempted to However, due to the lack of Does that appear to contain different language than what was Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 185 of 311774 1 Q How do you know it was the defendant who made the edits? 2 A He must have -- he must have done it. 3 make those edits. 4 Q Did the defendant bring you the final MOA for signature? 5 A Yes, he did. 6 Q With regards to the information contained in the final MOA, 7 which is the -- the top exhibit there, did Defendant ever ask 8 you -- ask you if you conducted that investigative activity? 9 A No, he did not. 10 Q Did you ever ask Defendant if he had conducted that 11 investigative activity? 12 A No, I did not. 13 Q Did Defendant ever tell you he had conducted that 14 investigative activity? 15 A No, he did not. 16 Q Did Defendant ever tell you any other agent in the office 17 had conducted that investigative activity? 18 A No, he did not. 19 Q Did there come a time when you reported what you had done in 20 drafting an MOA and providing it to Defendant without knowing 21 the work had been done? 22 A I'm sorry. 23 Q Did you ever report the fact that you thought Defendant had 24 asked you to put information in an MOA that had not, in fact, 25 occurred? I didn't. I didn't Could you repeat? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 186 of 311775 1 A Yes, I did. 2 Q When did that happen? 3 A That happened several months after that occurred. 4 office inspection; and at that point, you know, I reported it 5 to -- to James Izzard. 6 Q Why were you meeting with James Izzard? 7 A He was -- they were having a -- just a office inspection, 8 just a -- I guess make sure the office was running smoothly, 9 morale, asking about operations within the office, how the We had an 10 office was being run. After we had our conversation related to 11 that, I told him that there was a document that I think should 12 be looked at. 13 Q 14 time? 15 A Yes, I did. 16 Q And what was his response when you said there was a document 17 he should look at? 18 A 19 to know more details about it. 20 happened, and he asked if I would send him an email related to 21 that. 22 Q 23 you talking about? 24 A 25 brought the file, told me he was going to assign that case to me And did you provide that document to Mr. Izzard at that He was in shock. He -- he was in disbelief, and he wanted And I told him exactly how it When you say he asked you exactly how it happened, what are Just the incident how the defendant came in to ask me, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 187 of 311776 1 on that day and to draft the MOA and the closing report so we 2 could close the investigation. 3 Q 4 you had drafted an MOA containing information or investigative 5 activity that you thought had not occurred? 6 A 7 something that should be looked at. 8 Q 9 that? Did you explain to Mr. Izzard at that time that you thought Yes. I mean, that's why I reported it. I thought it was And did Mr. Izzard ask you to do anything once you told him 10 A Yes. He asked if I would send him an email related to the 11 incident. 12 Q And did you do as Mr. Izzard asked? 13 A Yes, I did. 14 Q Do you know how soon after that meeting that you sent that 15 email to Mr. Izzard? 16 A No, I do not. 17 Q Mr. Castillo, I'm going to -- I'm going to direct you to 18 what has been marked as -- previously marked as Government's 19 Exhibit 11E. 20 Sunday, September 18th, 2011. 21 talking about? 22 A Yes. 23 Q Do you recall drafting this email? 24 A Yes. 25 Q Do you recall sending this email to Mr. Izzard? It's an email from you to Mr. James Izzard dated Is this the email you were just Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 188 of 311777 1 A Yes. 2 Q Can you go ahead and read what you put in the body of the 3 email? 4 A 5 and said he was going to assign me investigation 6 I10-CBP-MCA-00414. 7 he needed me to type up an MOA and a short AROI so we could 8 close the investigation. 9 over a year. "James: On February 10th, 2011, Gene walked into my office Gene then said he needed a favor. He said The investigation had been open for Gene told me what he wanted to see on the MOA, and 10 I typed it up. I never performed the investigative activity. 11 emailed the MOA and short AROI to Gene, and I later asked him if 12 the MOA was okay. 13 not recall his exact words. 14 else." 15 Q 16 back from him? 17 A No, I did not. 18 Q Did you have any further contact with anybody else from the 19 inspection team about your allegation that Defendant asked you 20 to place information in an MOA? 21 A No. 22 Q I'm going to go ahead and shift gears here on you for just a 23 moment. 24 A Yes. 25 Q Have you ever had a case review? Gene said he would fix it, clean it up. I I do Let me know if you need anything After you sent this email to Mr. Izzard, did you ever hear Have you heard of the term case review? During your time in the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 189 of 311778 1 McAllen field office, did you ever have a case review? 2 A 3 back from leave was when I would have case reviews. 4 Q Can you explain what those case reviews consisted of? 5 A Case reviews consisted of -- well, at that time I didn't 6 know what exactly a case review was, not until we had a formal 7 one with -- with David Green. 8 Q 9 you had had case reviews, and you said that you had case reviews Of -- I had a case review after days off or after I came Let's step back for a moment. A minute ago I asked you if 10 after you went on vacation or had taken days off. At what point 11 were those case reviews in effect? 12 performed by the defendant? 13 A Yes. 14 Q What did they consist of? 15 A He would only ask for specific cases. 16 was more of the cases that were -- he felt had more substance to 17 them, and he wanted to know what was going on. But he never 18 wrote -- I never saw him write anything down. He was asking 19 what they -- what the progress was. 20 Q 21 off or -- why is that significant? 22 A 23 least I felt was indirect type of messing with me with my -- 24 it's more like a mind game. 25 Q Were those case reviews It was different. It And you said that these case reviews happened after a day Not all the time. It was more of an indirect type of -- at And why do you say that? What do you mean by that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 190 of 311779 1 A It was -- like I said before, it was hostile. It was rough. 2 Like I hated to go to work. 3 Q 4 when he would set a case review for the day after a day off? 5 A 6 ask for certain things in that investigation or certain steps 7 and maybe they weren't going to be completed and figured, you 8 know, have something else to hang over my head, I guess. 9 don't know. It was dreadful. So why did you think that the defendant was messing with you Maybe since I had some days off, I didn't -- he was going to I 10 Q And during the time Defendant was the supervisor of the 11 McAllen field office, did you ever sit down and have a case 12 review where you went through all of your cases? 13 A 14 ones that he thought were the cases that had the substance. 15 Q 16 case review with the defendant? 17 A I don't recall that one. 18 Q When was the first formal case review you had? 19 A That was after our inspection. Through all of my cases? No. It was just, like I said, the Did you have cases assigned to you that you had never done a 20 MR. EASTEPP: 21 of being cumulative. 22 MR. KIDD: 23 THE COURT: 24 MR. KIDD: 25 THE COURT: Judge, I'm going to object at this point Judge, this is a -You're changing topics, aren't you, here? No. I was changing time frames. That's what I meant. Go ahead. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 191 of 311780 1 MR. KIDD: 2 THE COURT: This is going to be very brief, Your Honor. I'm overruling the objection. 3 BY MR. KIDD 4 Q When was the first formal case review you had? 5 A It was after the inspection, and that was with Dave Green. 6 Q And what did that inspection consist of? 7 What did that case review consist of? 8 A 9 me, and then he asked me to bring all my cases, all my Or I apologize. Dave had all the master files of all the cases assigned to 10 investigations. And we met privately, and we discussed each one 11 one by one. 12 Q 13 before? 14 A Yes, it was. 15 Q Did anything come up during that case review that kind of 16 raised a red flag about previous case reviews? 17 A Not the first case review, but the second one did. 18 Q When was that second case review? 19 A The second one was 90 days after or so. 20 I want to say. 21 Q And what came up during that case review? 22 A We started off with the first investigation, and -- I want 23 to say it was the first one, and Dave mentioned that -- he said 24 that -- he asked if I had touched the master file. 25 didn't -- I don't think we had access to the file room, and I Was that different than any case review you had ever had It was in February, February of 2012. And we Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 192 of 311781 1 said no. 2 was missing from that specific -MR. EASTEPP: 3 4 And he said the case review worksheets were missing or Your Honor, I'm going to object to hearsay. THE COURT: 5 Sustained. 6 BY MR. KIDD 7 Q 8 did you find out during the course of your February case review? 9 A That the worksheets were missing. 10 Q Were they missing from one file, or was it from all of your 11 files? 12 A I can't recall, but there was -- 13 Q To the extent you know. 14 A I don't recall. 15 Q Now, I'm going to change -- I'm going to change gears on you 16 one more time here. 17 A Okay. 18 Q What was the -- did you ever have -- did the occasion ever 19 present itself during your time in the McAllen field office 20 while Defendant was the supervisor where you signed MOAs on 21 behalf of other agents in the office? 22 A Yes. 23 Q When would that occur? 24 A That was standard. 25 the office and they needed an MOA signed, they'd go to the Without going into specifically what Mr. Green said, what It was just several. It was normal. If the agent wasn't in Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 193 of 311782 1 available agent. 2 Q 3 that needed to be signed. 4 activity that was placed -- that was placed within the report? 5 A No, I did not. 6 Q Would you call the agent and confirm that it had actually 7 taken place? 8 A No, I did not. 9 Q Why not? 10 A I trusted my fellow agent had done the work. 11 Q Mr. Castillo, I'm going to direct your attention to what's 12 been marked as Government Exhibit 1C. 13 document. 14 let me know. And when that happened, did -- say an MOA was brought to you Would you review the investigative This is page 2 in that Can you go ahead and review it? When you're done, Mr. Castillo, were you assigned to -- and you see the case 15 16 title up there, "CBPO Manuel Peña, Brownsville, Texas." Were 17 you assigned to the Manuel Peña investigation? 18 A No, I was not. 19 Q I'm going to direct your attention to the lower left-hand 20 corner there. 21 A Yes, it is. 22 Q And does it say -- is it your signature and then say "for 23 Wayne Ball"? 24 A Yes, sir. 25 Q In that -- is this one of the instances where you signed on Is that your signature? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 194 of 311783 1 behalf of another agent? 2 A Yes. 3 Q Did you perform -- perform the investigative activity in 4 this report? 5 A No, I did not. 6 Q Do you know if this investigative activity even took place? 7 A No, I do not. 8 Q Did you ever talk to Mr. Ball and ask him if he had 9 performed this investigative activity? 10 A No, I did not. 11 Q You simply signed the report on his behalf? 12 A Like I said, it was standard practice. 13 reports if -- first available agent and you sign and you put -- 14 you type -- you write out "for" in front of the agent. 15 Q 16 this is Government's Exhibit 1C. 17 another one of those situations where you signed on behalf of 18 another agent? 19 A Yes. 20 Q Did you perform the investigative activity in this report? 21 A No, I did not. 22 Q Do you know if the investigative activity in this report was 23 performed? 24 A No, I did not. 25 Q And, Agent Castillo, I believe this is the last one. They bring you Mr. Castillo, I'm directing your attention -- once again, This is page 5. Is this This Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 195 of 311784 1 is Government's Exhibit 1C. Can you -- is this another one of 2 those situations where you signed a report on behalf of another? 3 A Yes. 4 Q Another agent in your office? 5 A Yes, sir. 6 Q And again, did you perform the investigative activity in 7 this report? 8 A No, I did not. 9 Q Do you know if the investigative activity in this report was 10 performed? 11 A No, I do not. 12 Q Did you ever speak to an agent in your office, either Agent 13 Healey or Agent Garcia, to confirm that this work was performed? 14 A No, I did not. 15 Q Now, Mr. Castillo, have you had conversations with the 16 government where we've spoken about whether or not you're going 17 to be prosecuted for your participation in the signing of a 18 false MOA? 19 A Yes. 20 Q And for the creation of a false MOA? 21 A Yes. 22 Q And is it your understanding that the government has told 23 you we will not be prosecuting you for your conduct in drafting 24 a falsified report and signing a falsified report? 25 A That is correct. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 196 of 311785 1 Q Do you have any obligations under that agreement not to be 2 prosecuted? 3 A Yes. 4 Q What are your obligations? 5 A That I be truthful, honest, and that the government -- that 6 I had not committed any other crime. 7 Q 8 cooperate, that if the government doesn't find out about any 9 other crimes and you commit no further crimes, that you will not So it's your understanding that if you're truthful and you 10 be prosecuted for your participation in the drafting and 11 falsification of an MOA? 12 A Yes. 13 Q Are there any other -- has the government promised you 14 anything else besides that we -- they will not prosecute you for 15 your conduct? 16 A No. 17 Q At any point has the government said that they will assist 18 you in getting your job back with the Department of Homeland 19 Security-Office of Inspector General? 20 A No. 21 Q Has it -- has any point the government promised to send a 22 letter endorsing you to get your job back with the Department of 23 Homeland Security-Office of Inspector General? 24 A No. 25 Q What is your understanding of the government's role in the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 197 of 311786 1 administrative proceeding that's going to take place with 2 respect to your job with the Department of Homeland 3 Security-Office of Inspector General? 4 A 5 decide what happens. 6 Q Not the government? 7 A Not the government. That's based on my agency. MR. KIDD: 8 That's -- my agency is going to Judge, may I have just one moment? No further questions at this time, Your Honor. 9 10 THE COURT: Cross-examination, Mr. Eastepp? 11 MR. EASTEPP: Yes, sir. CROSS-EXAMINATION 12 13 BY MR. EASTEPP 14 Q Good afternoon, Mr. Castillo. 15 A Good afternoon, sir. 16 Q I'm Larry Eastepp. 17 A No. 18 Q Okay. 19 because it was kind of the last thing Mr. Kidd covered with you. 20 How long have you been on administrative leave? 21 A Since May 4th, 2012. 22 Q And what have you been doing in this interim time period? 23 A Been at home. 24 Q And you do get paid every two weeks like you do? 25 A Right. I don't recall if we've ever met. On this issue of your job, let's start there first Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 198 of 311787 1 Q Right. So you've been paid a substantial amount of money if 2 we added every dollar up from May until today. 3 of pay, correct? 4 A Yes. 5 Q And that would be well over $100,000 gross money, correct? 6 A Yes. 7 Q Do you participate in any shooting competitions? 8 hobby of yours? 9 A Yes. 10 Q Has the agency let you represent them since you've been on 11 leave in any sort of shooting competition? 12 A No. 13 Q What kind of shooting competitions do you go to? 14 A Pistol. 15 Q With other agents? 16 A There's other agents there. 17 that's what you're asking. 18 Q Right. 19 A We have Quick Guns. 20 Q But -- okay. 21 continue? Almost two years Is that a I'm not on a team with them, if What team are you on? And I assume that's a hobby you would like to 22 MR. KIDD: 23 THE COURT: 24 BY MR. EASTEPP 25 Q Objection, Your Honor. Overruled. Relevance. You can answer that. It's a hobby you'd like to continue? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 199 of 311788 1 A Yes, sir. 2 Q Felony conviction would prevent you from doing that. 3 A Yes, sir. 4 Q So this immunity deal you have is a pretty good deal. 5 Prison, sit at home make money. 6 A Yes. 7 Q At the office, files like I'm going to go through in a 8 minute, this unknown file, those were pretty common, were they 9 not? Pretty good deal, correct? 10 A There's tons. 11 Q Right. 12 essentially ordering the opening of those files or, in fact, at 13 the JIC level opening those files, correct? 14 A To be honest, I don't know who would open the files. 15 Q That's fair. 16 A The allegations would come in from the JIC, you know, and 17 then they'd send it down to whatever office it pertained to. 18 Q 19 federal employee," be it somebody at a POE or BP, Border Patrol, 20 "is committing an unknown offense with some unknown people." 21 You saw lots of those, didn't you? 22 A Yes, sir. 23 Q And did you ever hear the term dog cases? 24 that? 25 very good one? Right. You're -- and you understood that headquarters was A bunch of them come down here that said "Unknown Did you ever hear That somebody gave you a dog case, meaning it's not a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 200 of 311789 1 A Yes, yes. 2 Q Okay. 3 either fairly good cases, but they're also being stuck with 4 these anonymous tip cases too, correct? 5 A Yes. 6 Q And most of those, the issue really is getting them cleared 7 out and over with, correct? 8 anywhere. 9 unknown cases. Objection, Your Honor. He's asking the witness to speculate about every case that came into the office. THE COURT: 12 13 Meaning they're never going to go There's not a whole lot you can do to it, these MR. KIDD: 10 11 I would guess that most of the agents had a mix of Well, I don't think he is. I think this is a general question. 14 MR. EASTEPP: 15 THE COURT: Right. If you understand the question, you can 16 answer it. 17 BY MR. EASTEPP 18 Q Or I can ask it again if it was a bad question. 19 A If you don't mind. 20 Q Okay. 21 if you have one or more of those unknown cases, you're never 22 really going to be able to do a whole lot of active 23 investigation on it, so it's mostly going to be getting it 24 administratively cleared out, correct? 25 A Yes. It's simply this. That like on your roster of cases, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 201 of 311790 1 Q Right. Because if it -- it's -- you can be the James Bond, 2 best, greatest agent in the world; but if it's an anonymous tip 3 about some anonymous situation, it's going to be tough to do a 4 whole lot of legal -- or investigative work on that, correct? 5 A Yes. 6 Q Also in this system of cases, you knew that there were TDY 7 agents that would come in at times and work on cases? 8 A Yes. 9 Q Including Dave Green before he became a supervisor 10 occasionally came from Houston, correct? 11 A Yes. 12 Q Other agents from around the country at times would come in 13 and work for a week and fly back to wherever they came from, 14 correct? 15 A Yes. 16 Q So if somebody had worked on one of these anonymous tip 17 cases and it was not closed out, some McAllen agent is probably 18 going to get stuck with the duty of doing the AROI, correct? 19 A Yeah. 20 Q So it shouldn't have been very shocking to you when your 21 supervisor, Special Agent in Charge Pedraza, came to you and 22 said: I need a favor. MR. KIDD: 23 24 BY MR. EASTEPP: 25 Q This dog needs to be closed. Objection. He may not have said dog, but this case needs to be closed. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 202 of 311791 MR. KIDD: 1 2 facts in evidence. 4 misspoke. 5 BY MR. EASTEPP: 6 Q 7 says: No, no, no, the file. I'm sorry if I I meant the file. That you came to -- that he came to see you with a file and I need a favor. MR. KIDD: 8 10 He's misstating the He came in with an AROI. MR. EASTEPP: 3 9 Objection, Your Honor. This needs to be closed out. Objection, Your Honor. And I'm sorry. Right before that, defense counsel stated that if they came and asked him if someone had to fill out an AROI to close it. THE COURT: 11 Let's just reask the question because I 12 think now with the objections, we've got half a question. 13 BY MR. EASTEPP 14 Q 15 been a big surprise that the supervisor of the office brought 16 you one of these anonymous tip cases that did not have a current 17 agent assigned to it, and you drew the black bean to close it 18 out. 19 That was not a surprise to you, right? 20 A Repeat the question just one more time. 21 Q Okay. 22 this been done in a little different process, which is he 23 assigned it to you, you got an email, and then you get the file 24 versus him walking to you and saying: 25 close this out, or whatever the words were. It's simply this, Special Agent Castillo. It couldn't have "Here, would you do me a favor and do the paperwork?" Let me back up. And let's talk about, you know, had Here it is. Help me Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 203 of 311792 1 A Uh-huh. 2 Q Right? 3 to begin with, it probably wasn't a surprise that he had to find 4 a McAllen agent to close it, correct? 5 A I mean, he assigned the investigation to me that day. 6 Q That's the point. 7 A Okay. 8 Q It just happened you were the one picked. 9 you know, I don't know the reason, but you were the first office The point is if there wasn't an agent assigned to it Whether you -- 10 to him or the first agent he saw or whatever reason it was, the 11 next one up. 12 reason, you got the assignment, correct? 13 A Yes. 14 Q All right. 15 your hands on the blue file at that time? 16 A I want to say it was blue. 17 Q And you know the difference in blue and brown, right? 18 A Yeah. 19 the -- the blue was the work file. 20 Q Sure. 21 A I don't know. 22 don't remember. 23 Q 24 the main file or the working file? 25 A You got the assignment, correct? That's all. For whatever And would you have actually had The brown one was the main file, and the blue was It's not the other way around? All right. It's been so long. The -- you know what? I I don't remember. But did you get the -- do you remember getting The work file. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 204 of 311793 1 Q All right. And you looked through it, correct? 2 see that earlier work had been done on it? 3 A No, I did not. 4 Q Let me show you within Government's Exhibit -- within 5 Government's Exhibit No. 11, there's some documents that -- in 6 addition to the MOA that you -- that Mr. Kidd went over with 7 you. 8 would have been this JIC report, correct? 9 A Uh-huh. 10 Q Showing January 19th of 2010, the allegation came in, 11 correct? 12 A Yes. 13 Q Do you recall that you would have seen that? 14 A Yes. 15 Q Okay. 16 this file? 17 number? 18 A Uh-huh. 19 Q Same identifier. 20 think the JIC report is the 19th, correct? 21 A Yes, sir. 22 Q But other than that, it says it received information from 23 the same Customs and Border Protection officer, Mr. Villarreal. 24 You see that? 25 assigned inspection duties, he encountered a concerned citizen First is -- this is Bates No. 26673. And did you Within the file But you don't recall that another agent had worked on It's Bates No. 26679. Do you see it's the same Yes, sir. This date appears to be incorrect. I And that it alleged that while conducting his Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 205 of 311794 1 who stated an unidentified CBPO is allegedly selling permits, 2 I-94s, for a fee. 3 unidentified CBPO is currently assigned to the Gateway port of 4 entry. 5 A Yes, sir. 6 Q You see it's dated February 3rd of 2010? 7 A Yes, sir. 8 Q Do you recognize the signature? 9 A It's -- I don't recognize it, but I see the name that's He assumed from the conversation that the Do you see that? 10 there, so I'm guessing that's his, Rodolfo De Luna. 11 Q Do you remember meeting somebody by Rudy De Luna? 12 A Yes, I do. 13 Q And who was he? 14 A He was an agent from Laredo. 15 Q Did he occasionally get TDYed down to the McAllen office to 16 help work on files? 17 A Yes, sir, he did. 18 Q And you see a few days later, do you recognize the 19 supervisory signature? 20 A Yes, I do. 21 Q And that's Jody Warren's, is it not? 22 A Yes. 23 Q Signed in his formal fashion, correct? 24 A Yes, sir. 25 Q Dated on February 9th, correct? Who do you recall him being? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 206 of 311795 1 A Yes, sir. 2 Q You don't recall seeing those when you worked on the file? 3 A No, sir. 4 Q All right. 5 calendar. 6 okay? 7 A 31. 8 Q So 12 days in January. 9 February the 3rd, correct? First let's do the -- do the math on the The JIC report no doubt came in on January 19th, How many days in January? 31, right? Rudy De Luna signs a report on 10 A Yes, sir. 11 Q So three and 12 is 15. 12 A Yes, sir. 13 Q All right. 14 when you were closing this file out? 15 A No, I do not. 16 Q Okay. Do we agree on that? But you don't -- you don't recall seeing that Can we, Mr. Starnes, put up 11B, page 4? This is out of Government's Exhibit 11B that Mr. Kidd showed 17 18 you, page 4. That this is the one you initially drafted, right? 19 A Yes, sir. 20 Q Okay. 21 2010, date from the JIC report that we just went over, correct? 22 A Yes. 23 Q All right. 24 anything at all, correct? 25 you see that? Now, looking -- you clearly got the January 19th, And what it says next, it doesn't say you did It says the agency, the DHS-OIG. Do Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 207 of 311796 1 A Yes, sir. 2 Q "Attempted to identify and locate the unknown individual 3 making the allegation." 4 A Yes, sir. 5 Q All right. 6 not typed to say SA Edwin Castillo made attempts to do anything, 7 correct? 8 A Yes. 9 Q All right. Do you see that? So again, this -- do you agree with me, this is And the way this was written, it's not 10 purporting to show that some -- something new occurred by you 11 the way it's written, correct? 12 saying it's the agency, correct? 13 A Yes. 14 Q All right. You very carefully wrote that Can we put up the next one, which is 11D? 15 Again, this is Government's Exhibit 11D. 16 If you could highlight the text. 17 Where -- I'm sorry. This is the beginning of the AROI, is 18 it not? 19 A Yes, sir, it's -- it is. 20 Q It's the first page of the AROI. 21 paragraph is pretty much the same in all MOAs, right? 22 dispute about that. 23 You agree with that? 24 25 MR. KIDD: We all agree that first That's completely accurate. Objection, Your Honor. knows it's completely accurate. No We all agree. There's no way he He can say it came from the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 208 of 311797 1 report -- the file. THE COURT: 2 3 If you know it's accurate, you can say it. If you don't know, just tell him you don't know. THE WITNESS: 4 The first paragraph usually comes from the 5 allegation from the initial complaint. 6 BY MR. EASTEPP: 7 Q Now, this one -- this is the change, and you attribute the 8 9 Thank you. change to Gene Pedraza, correct? 10 A Yes. 11 Q Who no doubt you didn't see him type this, did you? 12 didn't see him? 13 A No. 14 Q Right. 15 agent besides you to help in this, do you? 16 because it came back to you, correct? 17 A Yes. 18 Q All right. 19 it says, "During the ensuing days and weeks." 20 you the Rudy De Luna report 15 days after the JIC report. 21 may sound fancy, but is not 15 days days and weeks? 22 days and two weeks. 23 right? 24 A Uh-huh. 25 Q Right. You I did not, no. And you have no idea of whether he got a second You're just assuming But now looking at what is the change from here, Now, I've shown It It's 15 Do you agree with that, just as the math, It's after. And then it again doesn't say you did anything. It Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 209 of 311798 1 says the agency did something. 2 identify and locate the unknown motorist." 3 prepared, you're saying you never saw that Rudy De Luna had, in 4 fact, 15 days later worked on the file. MR. KIDD: 5 "The DHS-OIG attempted to Objection, Your Honor. So when this was That misstates the 6 evidence in the record. The MOA that defense counsel showed is 7 a receipt of complaint. It is not evidence of work on the file. THE COURT: 8 9 Well, he can answer that if that's the case. Reask your question. 10 BY MR. EASTEPP 11 Q 12 report when you prepared your earlier version, correct? 13 what your testimony has been, right? 14 A Right. 15 Q So now if we could highlight the signature block. You don't recall seeing that Rudy De Luna, February 3rd That's Do you think you would have typed the January 19th, 2010, 16 17 date? 18 A I mean, it's there. 19 Q You'd have to admit with me or you would have to admit that 20 it's clear to anybody that would look at this file that 21 January 19th could not have been the day the case was closed out 22 because that's the day the JIC report came in at the Washington 23 level, correct? 24 A Correct. 25 Q So anybody that looked at that would see that that's simply I must have typed it. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 210 of 311799 1 a typed error, right? Correct? 2 A Yeah. 3 Q Special Agent Castillo, I've waited for a while to ask this 4 question. 5 A Yes, sir. 6 Q Why do you think there's anything wrong with what was typed 7 on this file? 8 A 9 anything like that. I mean, it could have been. I just -- I don't know. He had never asked me to do It was just somewhat awkward. You know, I 10 mean, it wasn't -- it wasn't normal. 11 know, he just -- I don't know. 12 something that should be looked at. 13 Q 14 that -- that there was some additional matters in that file that 15 you might not have seen, that maybe you've been wrong all along 16 with your allegation? 17 A 18 the work. 19 Q I -- I just said it was I didn't -- And now that you've seen the Rudy De Luna report, doesn't I mean, I could have, but -- but I didn't do -- I didn't do I don't know. I didn't see him do the work, I mean. But the work was in the file, correct? MR. KIDD: 20 And then afterwards, you 21 BY MR. EASTEPP 22 Q 23 file, correct? 24 A Yes. 25 Q Right. Objection, Your Honor. I mean, the Rudy De Luna report I now showed you is in the And you've worked on other files before that came to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 211 of 311800 1 you subsequently, right? Some agent left the office and you get 2 it to you, or even within the office getting it reassigned where 3 somebody else has worked on a file, correct? 4 A Yes. 5 Q And so for you to look back in a report and rely on somebody 6 else's work is why all those reports are being prepared in the 7 beginning, correct? 8 that file, so that somebody subsequently could pick that up and 9 it would be in there, right? That's why Rudy De Luna put a report in 10 A Yes. 11 Q So when you simply describe that it's the agency didn't 12 confirm the lead, you didn't say Edwin Castillo did a thing. 13 There was nothing wrong with that, was there, what you -- what 14 was written, either by you or whoever made this last change, 15 correct? 16 A Yes. 17 MR. EASTEPP: 18 THE COURT: 19 MR. KIDD: I'll pass the witness. Redirect, Mr. Kidd? Yes, Your Honor. Just one moment. REDIRECT EXAMINATION 20 21 BY MR. KIDD 22 Q 23 draft, had you conducted the investigative activity placed 24 within that report? 25 A Mr. Castillo, the report that Defendant had asked you to No, I did not. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 212 of 311801 1 Q Did Defendant tell you any other agent in the office had 2 conducted that investigative activity? 3 A No. 4 Q Did Defendant tell you he had conducted that investigative 5 activity? 6 A No. 7 Q Had defendant ever asked you to draft an MOA on his behalf 8 or another agent's half -- behalf before? 9 A No. 10 Q Had Defendant ever asked you to assist him in editing 11 another agent's MOA? 12 A No. 13 Q After you signed the MOA that Defendant asked you to draft, 14 did you think that what you had done was wrong? 15 A Yes. 16 Q Did you think that what you had done was wrong because you 17 believed that what you had placed in that report was not 18 correct? 19 A Yes. 20 Q That that activity had not been performed? 21 A I didn't perform the activity. 22 MR. KIDD: 23 THE COURT: 24 MR. EASTEPP: 25 No further questions, Your Honor. Any recross, Mr. Eastepp? Very briefly. RECROSS-EXAMINATION Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 213 of 311802 1 BY MR. EASTEPP 2 Q 3 it may be scary to say something different than -- I understand you have a plea deal with the government, and MR. KIDD: 4 5 scope of redirect. 6 THE COURT: Objection, Your Honor. This is outside the Sustained. 7 BY MR. EASTEPP 8 Q 9 It's clear to you now sitting here that you had not seen that Now, Mr. Castillo, again, and I'll only ask this one thing. 10 Rudy De Luna report in that file at the time you drafted 11 whatever you drafted, correct? 12 13 14 15 MR. KIDD: Objection, Your Honor. We don't have evidence that it was in the file at the time he received it. THE COURT: All right. But you hadn't seen the Rudy De Luna report? 16 THE WITNESS: I can't say that I did. 17 MR. EASTEPP: That's all I have, Judge. 18 THE COURT: 19 MR. KIDD: 20 THE COURT: 21 22 23 24 25 All right. Anything else, Mr. Kidd? Nothing further, Your Honor. All right. You can step down, sir. Ladies and gentlemen, why don't we take another stretch break here. (Jury leaves courtroom) THE COURT: birthday cake. Cristi has to blow out her candles on her Let's take about ten minutes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 214 of 311803 1 (Recess taken from 3:25 to 3:50.) 2 THE COURT: 3 MR. KIDD: 4 THE COURT: 5 MR. KIDD: 6 Are we ready for the jury? We are, Your Honor. Who's going to be next? Richard Villarreal. (Jury enters courtroom) THE COURT: 7 All right. Ladies and gentlemen, be seated. Mr. Kidd, will you call your next witness, please? 8 MR. KIDD: 9 10 All right. Your Honor, the government calls Richard Villarreal to the stand. THE COURT: 11 Come right up here, sir, and be seated. 12 sworn and be seated. 13 (Witness sworn.) THE COURT: 14 All right. Be Be seated. RICHARD VILLARREAL, 15 16 the witness, having been first duly cautioned and sworn to tell 17 the truth, the whole truth and nothing but the truth, testified 18 as follows: DIRECT EXAMINATION 19 20 BY MR. KIDD 21 Q 22 spell it for the record. 23 A 24 R-I-C-H-A-R-D. 25 Q Good afternoon, sir. Can you please state your name and My name is Richard Villarreal. My first name is Richard, Last name is Villarreal, V-I-L-L-A-R-R-E-A-L. Mr. Villarreal, where are you currently employed? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 215 of 311804 1 A I work for Customs and Border Protection. 2 Q And how long have you been working for Customs and Border 3 Protection? 4 A I've been there for 17 years. 5 Q And what's your job title? 6 A I'm a Customs Border Protection officer, CBPO. 7 Q And as a CBPO, what are your job responsibilities? 8 A My current responsibilities are I work on a contraband 9 enforcement team. We current work -- I'm on an outbound team. 10 What we do is we look for weapons, currency leaving the country 11 or any -- and illegal exports. 12 Q And at the moment, where are you based out of? 13 A In Brownsville, Texas. 14 Q How long have you been based out of Brownsville, Texas? 15 A For 17 years. 16 Q Prior to becoming a CBPO, did you receive any specialized 17 law enforcement training? 18 A Yes, sir, I did. 19 Q Where did you receive that training? 20 A In Glenco, Georgia. 21 Q How long did that training last? 22 A Approximately three, three-and-a-half months, I believe. 23 Q What kind of courses did you take while at the -- 24 A We took courses on law pertaining to Customs laws, 25 pertaining to exportation and importation of merchandise into Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 216 of 311805 1 the country and laws pertaining to smuggling. 2 Q 3 and investigation -- 4 A They covered a very large -- 5 Q -- techniques, that sort of thing. 6 A -- variety of law enforcement activities, yes, sir. 7 Q Now, Mr. Villarreal, have you heard of the Joint Intake 8 Center? 9 A Yes, sir, I have. 10 Q Is that often referred to the JIC? 11 A That is correct. 12 Q What is the JIC? 13 A My understanding of it is that anytime we identify or hear 14 of any type of an individual, a law enforcement officer or agent 15 who is doing something unethical or illegal, we call the -- we 16 call their number. 17 number, we report that incident or provide the information to 18 them. 19 Q Is it essentially a hotline? 20 A It is a hotline, yes, sir. 21 Q Is it a hotline for DHS employees, or is it more widespread? 22 A To my knowledge, I know that we call that hotline. 23 know if other agencies call it as well. 24 Q 25 you have allegations against other law enforcement officers, or Did it cover a wide variety of law enforcement activities We have a 1-800 number. Once we call that I don't And just so we're clear, do you only call that hotline if Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 217 of 311806 1 is it more widespread? 2 A 3 is that it's other law enforcement officers, either where they 4 work with us or with one of the other organizations. 5 Q 6 the JIC? 7 A Yes, I have. 8 Q How many complaints have you made to the JIC throughout your 9 career? No, it's other law enforcement officers. My understanding Have you ever made a complaint to the Joint Intake Center or 10 A I've called twice. One was a discussion. 11 complaint. 12 Q 13 complaint to the Joint Intake Center? 14 A I don't recall the date of it. 15 Q Do you know around about when it was? 16 A Around 2010. 17 Q Do you recall that being in January 2010? 18 A Possibly January, yes, sir. 19 Q Do you recall the specifics of the complaint you called in 20 to the JIC? 21 A I certainly do. 22 Q Can you explain those to us? 23 A Certainly. 24 drivers who crossed into the country on a daily basis of a -- of 25 an individual, an officer selling permits out of one of our Let's focus on the complaint. One was a When did you call in a I had information from one of the transport Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 218 of 311807 1 Brownsville port of entries. And the information was that he 2 had a lady who was brokering the permits, and they were selling 3 them through her at Brownsville. 4 $600 or so. 5 Q 6 allegation to you, did you know this individual? 7 A 8 course of time because he crossed on a daily basis, so I was 9 able to develop a rapport with him over a period of several I believe the price was around The individual that made this -- that provided this I didn't know him really well. However, I knew him over a 10 months. 11 Q How were you able to develop the rapport? 12 A Just visiting with him, talking with him on a daily basis he 13 crossed, learning about who he was, who his family was. 14 because of his last name, it was pretty -- his last name was -- 15 well, just the individual would cross every day, so I just was 16 able to establish -- build a friendship with him or a trust, 17 rather. 18 Q 19 provided this information to you? 20 A 21 a rapport with these individuals, not all of them, but there's 22 certain ones that you're able to ask for information if they've 23 heard anything, if they know anything, that, you know, that I'd 24 like to hear, I'd like to know about that. 25 to us. And And he came forward and provided this allegation to you, I asked him -- once you're able to develop a -- some sort of It's real important Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 219 of 311808 1 Q And I don't want you to answer this question, but -- I don't 2 want you to give the name of the individual that I'm going to 3 ask in the next question. 4 source of information? 5 A Yes, sir, I did. 6 Q Once this source of information provided you the allegation 7 of a corrupt CBPO, what did you do with that allegation of 8 corruption? 9 A I took the information and I contacted the JIG. 10 Q You contacted the what? 11 A I contacted the hotline where we make -- where we call with 12 information. 13 Q How did you go about contacting the hotline? 14 A We have -- on our computers at work, they have the phone 15 number for them, and so we simply just call them and tell them 16 what it is we have. 17 Q 18 your -- the information you were providing to the JIC? 19 A I believe so. 20 Q Do you know how you were asked to memorialize that? 21 A I wrote up a paragraph and either emailed it or faxed it. 22 Q Mr. Villarreal, I'm showing you what has been marked 23 Government's Exhibit 11A. 24 document. 25 let me know after you've had a chance to review it? But did you know the name of the And during that conversation, were you asked to memorialize This is page 1 of a two page Can you go ahead and take a look at this document and Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 220 of 311809 1 A Yes, sir. 2 Q What do you recognize this document to be? 3 A I recognize it to be the information that I provided to 4 them. 5 that I received, and it's an -- and it's a report that I wrote 6 or a paragraph that I wrote. 7 Q I'm going to go ahead and direct your -- 8 A Or a synopsis of it, a copy of it. 9 Q Mr. Villarreal, I'm going to direct your attention to page 2 The information is a brief statement on the allegation 10 of Government's Exhibit 11A. Can you go ahead and take a moment 11 and review that and let me know when you're done? 12 A Yes, sir. 13 Q A moment ago you testified that you had emailed a statement 14 or you thought you had emailed a writeup of the complaint of the 15 allegations you had obtained. 16 it contained in this document? 17 A 18 below that and -- between "begin" and "end," that's my 19 statement. 20 Q Can you go ahead read that for the record? 21 A Certainly. 22 information on the possibility of an officer selling permits 23 from Gateway International Bridge as well as a possibility of 24 another officer located at a bridge across from Reynosa. 25 individual with this information has a contact by the name of Does that writeup, the email, is It's at the bottom part, yes, sir, where it says "begin" "I am a CBPO in Brownsville, Texas, with The Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 221 of 311810 1 Mari who was -- who has direct contact with the officer at 2 Gateway. 3 Sunday afternoon and was asked by her to wait at her home while 4 she attempted to locate the officer. 5 later and said the officer was unable and she would contact him 6 as soon as she made contact with the officer at Gateway." 7 Q Is this the entirety of the information you sent to the JIC? 8 A I believe so. 9 Q Now, in this -- this paragraph that you wrote, I notice that I was informed today that he met with this lady on She returned three hours 10 the name of the individual who provided the information is not 11 listed; is that correct? 12 A That's correct. 13 Q Why is that so? 14 individual who made the complaint? 15 A 16 protection. 17 Q So that -- was that a strategic move on your part? 18 A No, it's what we always do. 19 Q Is that normal law enforcement -- 20 A It is normal -- 21 Q -- tactics? 22 A -- yes, sir. 23 Q Now, after making or providing this allegation to the JIC, 24 did you ever hear anything more about it? 25 follow-up after you made -- you provided this information to the Why didn't you list the name of the We don't provide the name of individuals for their We don't provide the name of a source. Was there any Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 222 of 311811 1 JIC? 2 A We had a meeting. 3 Q When you say we had a meeting -- 4 A I had a meeting with two of the special agents at the port 5 of entry at Los Indios. 6 Q 7 complaint to the JIC -- 8 A Right. 9 Q -- or provided the information to the JIC, did anybody ever Okay. Let's step back for a moment. After you made the 10 reach out to you about that complaint? 11 A Yes. 12 Q Who reached out to you? 13 A I had two agents call. 14 Special Agent Wayne Ball. 15 Camillo Garcia, Special Agent Camillo Garcia. 16 Q Do you know who those special agents worked with? 17 A I just -- 18 Q Do you know what agency they worked with? 19 A I assumed it was OIG. 20 Q Why did you assume that? 21 A Because that's usually who comes out, I believe. 22 Q Now, after speaking with Special Agent Camillo Garcia and 23 Special Agent Wayne Ball, did you have any follow-up 24 conversations or meetings with these special agents? 25 A One of the agents that called me was Another agent that I spoke with was I did have a meeting, yes, sir. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 223 of 311812 1 Q Okay. Can you tell us how that meeting came about? 2 A The meeting came about -- not exactly sure how -- exactly 3 how it transpired, but what I can tell you is what took place. 4 I -- once the subject or the source came back into the port of 5 entry, I believe at that point I made contact because I was -- 6 the gentleman was there. 7 port of entry. 8 Camillo Garcia both came to the port of entry at Los Indios. When -- so I held him there at the Special Agent Wayne Ball and Special Agent The source, I brought him in through one of the back doors, 9 10 and we went into a conference room. We had a meeting in the 11 conference room. 12 is bring the individual in. 13 special agents. 14 card, made copies of his card. 15 explained to them what a permit was, what an I-94 was. 16 explained to them so they could understand. 17 Q 18 explain to them what an I-94 was? 19 A 20 on there. 21 is with a -- there's a stamp on there. 22 there's a number that identifies an officer. 23 to that was that while I assumed as the investigation was going 24 to continue, that when our source was going to go back and visit 25 with this lady Maria, the important thing is for him to In the conference room, what I was able to do He was able to talk with the I picked up his identification, his crossing And why was that relevant? The other thing I did was I I Why was it relevant for you to What's relevant about it is that on an I-94, there's a stamp Whether it's a stamp -- an ink stamp or a stamp that But on that stamp, And the importance Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 224 of 311813 1 understand we also show -- not only did I show the agents, I 2 showed the source. 3 that on that stamp was a number. 4 important because it would identify the officer. 5 that's why it was so important to bring in an I-94 to show them 6 and to show the source so that he would understand that even if 7 he was unable to get one, if he could just look at the number, 8 we'd be able to identify the officer. 9 Q And what was important is that he understand And that number was very, very And that's -- And was this because the source -- the information that the 10 source provided to you was that a CBPO officer was selling these 11 I-94s? 12 A That's correct. 13 Q So you provided this information to Special Agent Camillo 14 Garcia and Special Agent Wayne Ball along with the source of 15 information. 16 A Certainly. 17 Q During that meeting, was the identity of the source of 18 information provided to Special Agents Camillo Garcia and 19 Special Agent Wayne Ball? 20 A Absolutely. 21 Q How long did that meeting last? 22 A Probably about 45 minutes to an hour. 23 Q After that meeting, did you ever have a follow-up meeting 24 with Special Agent Camillo Garcia and Special Agent Wayne Ball? 25 A Was that in anticipation of further investigation? I had a follow-up meeting with Camillo Garcia. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 225 of 311814 1 Q And how did that come about? 2 A What happened was that the individual had an appointment to 3 meet us back at the port of entry. 4 Q How long -- 5 THE COURT: 6 THE WITNESS: 7 THE COURT: 8 THE WITNESS: 9 Which individual? I'm sorry, sir? What individual? The source, yes, sir. appointment, an approximate time. 10 morning around 10:00. 11 for a follow-up. And I believe it was in the And so the source was to meet us again Camillo Garcia came out to the port. 12 The source had an I stood outside with 13 Camillo for -- it had to be an hour, an hour-and-a-half, maybe 14 even two hours. 15 BY MR. KIDD: 16 Q How soon after the first meeting was this second meeting? 17 A You know, I don't recall that, but I'm sure it was within 18 about a week, I would assume. 19 Q 20 Special Agent Wayne Ball, and Special Agent Camillo Garcia, the 21 first meeting, did you ever talk to the source of information 22 again? 23 A 24 continued to work at that same port at Los Indios for several 25 months after that. The source never showed up. After the meeting you had with the source of information, No, sir. He vanished. I didn't see him again. And I And I asked other drivers, but I never saw Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 226 of 311815 1 him again. 2 Q 3 Ball, did you ever speak with any other special agents from the 4 Department of Homeland Security-Office of Inspector General 5 about the complaint you made to the Joint Intake Center? 6 A One other officer. 7 Q Who was that? 8 A I don't recall what his name was. 9 Q When was that? 10 A It was probably a month afterwards. 11 Q And do you know where that -- where that -- where that 12 special agent was based out of? 13 A 14 believe. 15 Q 16 from you? 17 A 18 to know -- he wasn't able to -- the information he had showed 19 that there was no information on the source. 20 said he had reviewed the file and that there was no -- there was 21 nothing in there to indicate who the source was or any 22 information on him. 23 Q 24 Ball and Special Agent Camillo Garcia had come down and met the 25 source? Besides Special Agent Camillo Garcia and Special Agent Wayne I want to say San Antonio office. He was a supervisor, I And what -- what kind of information was he trying to get He wanted to know the identity of the individual. He wanted And I -- and he And did you tell that individual that Special Agent Wayne Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 227 of 311816 1 A Absolutely. 2 Q Do you know an individual by the name of Rudy De Luna? 3 A No, sir. 4 Q Rodolfo De Luna? 5 A No, sir. 6 Q Did a special agent with the Department of Homeland 7 Security-Office of Inspector General with the last name De Luna 8 ever contact you about the information you provided to the JIC? 9 A I don't recall, sir. 10 Q Do you recall a special agent with Homeland Security-Office 11 of Inspector General ever contacting you about -- besides Wayne 12 Ball and Camillo Garcia and the supervisor out of San Antonio? 13 A No. 14 Q Mr. Villarreal, do you know who Eugenio Pedraza is? 15 A No, sir. 16 Q Have you ever spoken with a Mr. Eugenio Pedraza? 17 A Not to my knowledge. 18 Never. MR. EASTEPP: Judge, I'm going to object to him being 19 asked questions about this document when he said he does not 20 know Mr. Pedraza, he's not been asked if he knows Special Agent 21 Castillo, and he has not been asked anything about whether he 22 knows about the paperwork of the agency. 23 24 25 THE COURT: Okay. I may sustain that depending on the question. MR. EASTEPP: Well, it's up on the screen already. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 228 of 311817 1 That's my concern. 2 THE COURT: 3 MR. KIDD: Well, let me -- it's in evidence. Yeah, this document is in evidence, and it 4 does reference Mr. Villarreal. 5 BY MR. KIDD 6 Q 7 Government's Exhibit 11D? 8 A Starting from the top? 9 Q Yes, please. 10 A "Department of Homeland Security" -- 11 Q No, I'm sorry. 12 know when you're done. 13 A Okay. 14 Q Mr. Villarreal, directing your attention to the second 15 paragraph in that document. 16 second paragraph of that document accurate? 17 A No, sir, it's not. 18 Q Why is it not accurate? 19 A It's not accurate because we were able to meet with the 20 individual. 21 him, and I was able to provide his documents. 22 copies of them. 23 Q 24 Garcia and Special Agents Wayne Ball? 25 A Mr. Villarreal, can you read what has been marked as Go ahead and read it to yourself and let me Okay, sir. Is the information contained in the I brought him into the office. We sat down with I believe we made And you provided that information to Special Agents Camillo That is correct, yes, sir. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 229 of 311818 1 Q Mr. Villarreal, did you know the identity of the motorist 2 who provided the information to you that you then provided to 3 the JIC? 4 A Certainly did. MR. KIDD: 5 Your Honor, just one moment. 6 BY MR. KIDD 7 Q Mr. Villarreal, just one last question. 8 A Yes, sir. 9 Q Do you know DHS-OIG Special Agent Edwin Castillo? 10 A I don't know that I do. MR. KIDD: 11 12 No further questions at this time, Your Honor. THE COURT: 13 Mr. Eastepp? CROSS-EXAMINATION 14 15 BY MR. EASTEPP 16 Q This is Gene Pedraza. 17 A No, sir. 18 Q All right. 19 that you would not go into their offices and meet with them? 20 A No, sir. 21 Q On this situation of Wayne Ball and Camillo Garcia coming 22 out there, do you know what, if anything, they did with any 23 paperwork they may have generated? 24 A I don't know, sir. 25 Q You wouldn't have any idea what file they might have put You never met him? He was the SAC of the OIG. I take it in McAllen I don't know where their offices are at. I have no idea. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 230 of 311819 1 information in, do you? If they put any information in a file 2 at all, you would have no idea? 3 A Are you asking me whether they created a file? 4 Q No. 5 if they created it? 6 A 7 paperwork, that is correct. 8 Q 9 been interested in when they were there? You would have no idea what they did with any paperwork I would have no idea what they would do with their Right. Were you really aware totally what they might have 10 A I think it was obvious, yes, sir. 11 Q What if they were there looking at other individuals too 12 that they just didn't want to tell you about? MR. KIDD: 13 14 Objection, Your Honor. It's calling -- asking the witness to speculate. 15 THE COURT: I think he can answer this. 16 THE WITNESS: I believe it was pretty evident that they 17 were there for the reason that I called them. It was pretty 18 specific. 19 BY MR. EASTEPP: 20 Q 21 correct? 22 A I wouldn't know. 23 Q Right. 24 that you were just shown was created, you don't know what the 25 two individuals who signed it knew at the moment they signed it, But you don't know what else they may have been doing, And ultimately the bottom line, when the document Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 231 of 311820 1 do you? And so if any information from Wayne Ball or Camillo 2 Garcia had not made it into a discrete specific file, you would 3 have no knowledge of that, do you? 4 A That's correct. 5 Q So when this was created, if that wasn't in there, you would 6 have no knowledge of that? 7 A That's correct. 8 Q And you were interviewed about these events almost two years 9 after this JIC report went in, the first time you were 10 interviewed? 11 A No, sir. 12 Q What -- 13 A When you say interviewed, interviewed -- 14 Q By the FBI. 15 A It was probably a couple -- it was quite a while. 16 Q Quite a while. 17 JIC report that you say you've ever made? 18 A That's correct. 19 Q Okay. 20 no idea? 21 A And have you had other -- is this the only But again, what happened to the paperwork, you have I wouldn't know. 22 MR. EASTEPP: 23 MR. KIDD: Thank you. Your Honor, just one further follow-up. REDIRECT EXAMINATION 24 25 All right. BY MR. KIDD Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 232 of 311821 1 Q Mr. Villarreal, your meeting with Special Agent Wayne Ball 2 and Special Agent Camillo Garcia, did that occur prior to 3 February of 2011? 4 A Yes, sir. 5 Q Do you know how long after the complaint was submitted to 6 the JIC that you had that meeting? 7 A It had to be within a couple of days. 8 MR. KIDD: 9 THE COURT: Thank you. MR. EASTEPP: 11 THE COURT: 12 THE WITNESS: 13 THE COURT: MR. COONEY: 16 THE COURT: 17 MR. COONEY: 19 20 21 22 23 Oh, no, sir. Thank you, sir. You may step down. Thank you, sir. Mr. Cooney, I see you standing, so I guess you're it. 15 18 No further questions, Your Honor. Anything else? 10 14 Fairly quickly. I am it. May I call a witness, Your Honor? You may. Thank you. The government calls Cynthia Hinojosa. THE COURT: Come right up here, ma'am. (Witness sworn.) THE COURT: All right. You may be seated. You may have to scoot the microphone around to make sure you're heard. CYNTHIA HINOJOSA, 24 the witness, having been first duly cautioned and sworn to tell 25 the truth, the whole truth and nothing but the truth, testified Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 233 of 311822 1 as follows: DIRECT EXAMINATION 2 3 BY MR. COONEY 4 Q Good afternoon, ma'am. 5 A Good afternoon. 6 Q Could you please state and spell your name for the record. 7 A Cynthia Hinojosa. 8 Q Thank you. 9 A Yes. 10 Q Where are you employed? 11 A In Houston, Texas. 12 Q For what agency? 13 A Department of Homeland Security-Office of Inspector General. 14 Q Thank you. 15 and keep your voice up for the jurors who are seated in the back 16 here. 17 right now in the air, I'm just asking you to raise your voice, 18 that's all. 19 A Okay. 20 Q Do you understand that? 21 A Uh-huh. 22 Q Is that a yes? 23 A Yes. 24 Q So that's also -- I'm always going to need you to speak an 25 answer -- C-Y-N-T-H-I-A, H-I-N-O-J-O-S-A. Ms. Hinojosa, are you currently employed? Ms. Hinojosa, I'm going to ask you to just try And if you see me kind of raising my hands like I'm doing Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 234 of 311823 1 A Okay. 2 Q -- because we have a court reporter here who is taking down 3 and making a record of everything we're saying. 4 understand that? 5 A Yes. 6 Q All right. Thank you. What is your position with DHS-OIG? 7 8 A Administrative officer. 9 Q How long have you been employed by DHS-OIG? 10 A I'm going on ten years. 11 Q Who hired you into that agency? 12 A Gene Pedraza. 13 Q Is he here in court today? 14 A Yes. 15 Q Do you see him? 16 A Yes. He's standing right there. MR. COONEY: 17 18 Do you May the record reflect that she identified the defendant? 19 THE COURT: 20 MR. COONEY: The record will so reflect. Thank you, Your Honor. 21 BY MR. COONEY 22 Q 23 first hired in to DHS-OIG as? 24 A It was called investigative specialist. 25 Q What year was that? Ms. Hinojosa, what were you first -- what position were you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 235 of 311824 1 A 2004. 2 Q Was that in the McAllen field office? 3 A Yes. 4 Q What GS level was that? 5 A I believe it was a GS-9. 6 Q What is your current GS level? 7 A GS-12. 8 Q Does a GS-12 make more money than a GS-9? 9 A Yes. 10 Q Considerably more money, right? 11 A Yes. 12 Q Who promoted you from a GS-9 to a GS-12? 13 A Gene Pedraza. 14 Q Was that while you worked for him at the McAllen field 15 office? 16 A Yes. 17 Q Was he your direct boss? 18 A Yes. 19 Q Was he a good boss to you? 20 A Yes. 21 Q Did you develop a close relationship with him? 22 A Yes. 23 Q Did the two of you socialize at work? 24 A Yes. 25 Q Did you do things like go to lunch? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 236 of 311825 1 A Occasionally. Not very often. 2 Q Not very often? 3 A No. 4 Q You didn't go to lunch on a regular basis? 5 A No. 6 Q Okay. 7 matter before a grand jury on a prior date; is that correct? 8 A Now, Ms. Hinojosa, you actually testified in this Yes. MR. COONEY: 9 10 THE COURT: 11 MR. COONEY: Your Honor, may I approach the witness? You may. Thank you. Your Honor, would you like a copy of this? 12 THE COURT: 13 Not unless you think I need it. 14 BY MR. COONEY 15 Q 16 Exhibit No. 101. 17 A No, I've never seen this before. 18 Q Why don't you go ahead and look at page 1 of the document. Ms. Hinojosa, I've just placed before you Government's Do you recognize that document? 19 MR. EASTEPP: 20 MR. KIDD: 21 THE COURT: 22 MR. COONEY: 23 THE COURT: If not, that's fine. 24 MR. COONEY: We do, Your Honor. 25 BY MR. COONEY I'm sorry, could I get that number again? Government's Exhibit 101. If you have an extra copy, I may need it. We do. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 237 of 311826 1 Q And I'm sorry. I put in front of you what's been marked for 2 identification as Government's Exhibit No. 101. 3 Ms. Hinojosa, do you see your name there on page 1 of 4 Government's Exhibit No. 101? 5 A Yes. 6 Q Okay. 7 March 23, 2012? 8 A Yes. 9 Q Now, can you go ahead and just -- you can flip through Now, And do you see the date just above that, Friday, 10 Government's Exhibit No. 101. It is a 66 page document. And 11 you don't need to read it, but you can just take a look at it. 12 And would you agree with me that that is a copy of your grand 13 jury testimony of March 23, 2012? 14 A Yes. 15 Q And if you want to go ahead and look at page 2 of 16 Government's Exhibit No. 101, line 3. 17 there at the top of line 3? 18 A Yes. 19 Q And then can you go ahead and read to yourself lines 4 20 through 6? Do you see your name Did you get a chance to do that? 21 22 A Yes. 23 Q Is that the oath that you took when you testified before the 24 grand jury? 25 A Yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 238 of 311827 1 Q All right. 2 line 11. And why don't you go ahead and turn to page 10, You were asked the question before the grand jury: 3 4 It was not uncommon" -- and you interrupted. 5 "Right." 6 to lunch together." A MR. EASTEPP: "Yes." Your Honor, optional completeness. Can I have the questions and answers above that read? THE COURT: 11 12 BY MR. COONEY 13 Q 14 times a week?" Yes. Above that line 6, question: 15 THE COURT: 16 MR. COONEY: 17 "For you and Mr. Pedraza to go Yes. 9 10 Answer: Answer at line 12, Were you asked those questions and did you give that answer? 7 8 Question at line 13. "Okay. "Perhaps as much as three Wait, wait, wait. Excuse me. Yep, I'm sorry. I'll go up to line 3. MR. EASTEPP: 18 19 BY MR. COONEY 20 Q 21 with him frequently." Question: "Okay. Answer: That's fine. Well, you went -- you would go to lunch 22 Line 5. "Yes." 23 Were you asked that question, and did you give that answer? 24 A Yes. 25 Q Is that correct, that you went to lunch with the defendant Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 239 of 311828 1 frequently? 2 A 3 went. I guess I don't recall the frequent -- how many times we 4 THE COURT: 5 MR. EASTEPP: 6 THE COURT: 7 Go ahead. I thought he was going to continue on. Go ahead and finish your answer. Or were you done, Ms. Hinojosa? 8 THE WITNESS: 9 THE COURT: I was done. Okay. 10 BY MR. COONEY 11 Q 12 week I think you told me." Okay. Line 6, question: Line 8, answer: 13 Go ahead and read the next. "Perhaps as much as three times a "Sometimes. I wouldn't say frequently. I 14 mean, sometimes we'd go as a group or a couple of us, just him 15 and I." 16 Line 11, question: 17 Answer: 18 Line 13, question: 19 "Okay. It was not uncommon?" "Right." "For you and Mr. Pedraza to go to lunch together?" 20 Line 15 answer: "Yes." 21 So first my question is were you asked those questions and 22 did you give those answers when you testified before the grand 23 jury? 24 A Yes. 25 Q And so a moment ago you testified that you did not go to Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 240 of 311829 1 lunch with the defendant regularly; is that right? 2 A Yes. 3 Q And so I'm asking you, did you go to lunch with the 4 defendant while he was your boss regularly? 5 A 6 Every day or -- I couldn't say how many times, once a week, 7 twice. 8 Q 9 with him frequently? I guess I would have to ask what do you mean by regularly. I don't know. Did you testify before the grand jury that you went to lunch 10 A Yes, I did. 11 Q Okay. 12 actually go ahead and slide Grand Jury Exhibit 101 to the side. What kind of duties did you perform -- you can What kind of duties did you perform for the defendant when 13 14 you first began working for him? 15 A 16 answer phones, do research, work with the case files, putting 17 them together, creating a work file for the agents, handling any 18 paperwork that was going in and out of those case files. 19 Q And did you like working for him? 20 A Yes. 21 Q When was it that you were promoted from a GS-9 to a GS-12? 22 A I believe it was in 2005. 23 Q And what's the pay difference between a GS-9 and a GS-12? 24 A I don't know. 25 Q But it's a significant increase from a 9 to a 12? I would handle the budget for the group, order supplies, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 241 of 311830 1 A Well, you don't go from a 9 to a 12. You go from 9 to an 2 11, and then from an 11 to a 12. 3 Q 4 9 to 11 and an 11 to a 12? 5 A Yes. 6 Q And is it a substantial pay difference between a 9 and an 7 11? 8 A I don't have the pay scale memorized. 9 Q And what about an 11 to a 12? 10 A Same thing. 11 Q But needless to say, you're making more money as a 12 than 12 as a 9? 13 A Yes. 14 Q All right. 15 2011, in that -- in that general time period. 16 working for the defendant at that time? 17 A Yes. 18 Q And what type of responsibilities did you have for him then? 19 A Still pretty much the same. 20 that much. 21 Q Was he your direct supervisor? 22 A Yes. 23 Q Was he the person who you reported to directly? 24 A Yes. 25 Q Was he the person from whom you took instruction? And did the defendant make both promotions from you, from a I don't know it. Now, I want to go back to the year 2010 and Were you still My job hasn't really changed Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 242 of 311831 1 A Yes. 2 Q And direction? 3 A Yes. 4 Q And followed orders? 5 A Yes. 6 Q Was one of your responsibilities in working for him to 7 actually access the case file room at DHS-OIG? 8 A Yes. 9 Q What kind of things did you do when you accessed the case 10 file room? 11 A 12 memorandum that was turned in, and I would file it into the case 13 file room, any of the forms that needed to be filed into the 14 case file. I would retrieve case files from there to update any I mean, yes, into the case file. And then I would also retrieve the case files if an agent 15 16 needed it or if Mr. Pedraza asked for it. I also would check on 17 the status of the case if it was closed, and I would update it 18 and move it over to the closed section file. 19 Q 20 at the defendant's direction? 21 A Not all the times. 22 Q Did he ever give you directions to enter the case file room? 23 A Yes. 24 Q Did he do that on a regular basis? 25 A I guess. Now, when you accessed the case file room, did you do that I don't know what you mean by regular, if it was Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 243 of 311832 1 every day. I couldn't say if it was every day that he told me 2 go into the case file room. 3 Q Was it a routine part of your job? 4 A It was a routine part of my job. 5 Q Was it routine for him to direct you to obtain files or to 6 otherwise access the case file room? 7 A Yes. 8 Q Now, how do you go about accessing the case file room? 9 A I have an ID card or some type of card, and I would just put 10 it on the panel on the wall, and that's how I would enter the 11 room. 12 Q 13 isn't an electronic record of that made? 14 A I think so. 15 Q So if an electronic record is made, you'd agree that every 16 time you put your card against that, that record would be made 17 of when you went in? 18 A 19 monitored or not. 20 Q 21 2011, in or around August and September of 2011. 22 remember that time period working for the defendant? 23 A Yes. 24 Q Do you recall there being an inspection by DHS-OIG officials 25 of the McAllen field office? And when -- when you put that card on the panel at the room, I think. Okay. Yeah. I don't know if it's electronically I don't know. Now, I want to turn to a specific time period in Do you Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 244 of 311833 1 A Yes. 2 Q Did you have any role or responsibility related to that 3 inspection? 4 A I had lots of responsibilities. 5 Q What were your responsibilities related to that? 6 A I -- one of them was going through the case files, making 7 sure everything was in order. 8 sure that was in order. 9 the agents set up notebooks for whatever assignments they were Looking at the evidence, making The grand jury files. I was helping 10 given. I was all over the place. 11 Q 12 preparing for the inspection? 13 A Gene. 14 Q Now, was one of those roles to help prepare the case files 15 for review by inspectors? 16 A Yes. 17 Q Did you play any role in selecting the cases that were to be 18 inspected? 19 A No. 20 Q Did you play any role in identifying those cases for the 21 inspectors? 22 A Yes. 23 Q What was your role in helping identify those cases for the 24 inspectors? 25 A Who were you taking instructions from when you were They were looking at fiscal year '10, I believe. I believe I worked on a spreadsheet. They -- I think they Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 245 of 311834 1 sent us a spreadsheet of all our cases, open and closed, for 2 both McAllen and Laredo. 3 the ones that were going to be examined. 4 Q How did you select the cases to highlight to be examined? 5 A I believe it was Gene that selected the cases. 6 Q Did you highlight the cases that Gene had selected on this 7 Excel spreadsheet? 8 A I believe so. 9 Q What did you do with that Excel spreadsheet? 10 A I think it was forwarded to C.J. 11 name. 12 Q Who was C.J.? 13 A He was one of the inspectors. 14 Q And would that have been sometime before the inspection that 15 occurred in September of 2011? 16 A Yes. 17 Q Now, I want to move forward to January of 2012. 18 come a time in January 2012 where you became aware that agents 19 who worked at DHS-OIG were being summoned to Washington to 20 appear before a grand jury? 21 A Yes. 22 Q How did you become aware of that? 23 A A couple of the agents asked me to help them out with their 24 travel authorization. 25 Q And then I just kind of highlighted I don't recall his last Did there What exactly -- what was your role in helping to prepare a Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 246 of 311835 1 travel authorization? 2 A 3 arrangements. 4 Q 5 arrangements that these agents were going to Washington to 6 appear before a grand jury? 7 A Because that was on the computer, on the travel request. 8 Q Did you have any conversations with the defendant, 9 Mr. Pedraza, about that? I helped them on a computer like with their flight and hotel How did you know that when you were preparing this travel 10 A Yes. 11 Q What conversations did you have? 12 A I mentioned to him that the guys were going to Washington, 13 D.C., and we thought it was odd because he hadn't heard about 14 it. 15 Q 16 going to Washington, D.C.? 17 A That he thought it was probably about him. 18 Q Did he say anything else about that? 19 A No. 20 Q Did you know what he was referring to when he said he 21 thought it was about him? 22 A No. 23 Q What events are you referring to? 24 A The inspection. 25 Q What was his tone or demeanor like when he said that to you? What did he say when you mentioned to him that the guys were Just because of the events that had happened. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 247 of 311836 1 A Concerned. 2 MR. COONEY: 3 THE COURT: May I approach the witness, Your Honor? You may. 4 BY MR. COONEY 5 Q 6 and I'm going to put next to you 20B. 7 and hold on to 20B. 8 MR. COONEY: 9 I'm going to go ahead and show you Government's Exhibit 20A, Actually I'll go ahead Why don't you just look at 20A. I think by agreement of the parties, Government's Exhibit 20A is in evidence, and so -- I think there 10 are going to be some other portions of this email that will be 11 put into evidence to complete the thread. 12 THE COURT: I don't have it into evidence. 13 MR. COONEY: I think by agreement of the parties -- we 14 have discussed this. 15 cleared this with you. 16 I apologize, Your Honor, if we had not I would now move for admission of Government's Exhibit 20A. 17 THE COURT: Hearing no objection, it's admitted. 18 MR. EASTEPP: Right, Judge. The only issue is they said 19 this was some early email traffic that then got used later on 20 like people will do, and there is some fill in I think in an 21 email I have, but I think we can show that too. 22 okay with that. 23 THE COURT: 24 MR. KIDD: 25 Everybody is All right. The government is not -- the threads that we've shown, to be clear, are complete, but there are some Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 248 of 311837 1 related email traffic that we're not objecting to being entered 2 into evidence. 3 THE COURT: 4 MR. COONEY: 5 MR. EASTEPP: Same thing. I don't object. If there's any fill in, I'd just ask to be able to do it. THE COURT: 8 9 So I'd actually move at the same time relatedly Government's Exhibit 20B. 6 7 Okay. All right. Government's Exhibit 20A and 20B are admitted. MR. COONEY: 10 Why don't you go ahead and put Government's 11 Exhibit 20A on the screen. 12 BY MR. COONEY 13 Q 14 Thank you. And if you could go ahead and zoom in to the top two emails. Ms. Hinojosa, first of all, Government's Exhibit 20A, the 15 16 top reflects an email forwarded to you by the defendant on 17 January 24, 2012. 18 A Yes. 19 Q Now, below that is an email that was included in that 20 forward from an individual name Chieh Chang to the defendant 21 dated August 30th, 2011, and it asks, "Can you highlight the 22 cases that you have reserved for us to inspect?" Is that fair of me to say? Do you know what that question is about in the email? 23 24 A From C.J.? 25 Q Well, who is C.J.? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 249 of 311838 1 A C.J. -- this is who we call C.J. 2 Q So is Chieh Chang, is that C.J.? 3 A Yes. 4 Q So then what is it that that -- are you familiar with what 5 he's asking the defendant to provide? 6 A 7 inventory for McAllen and Laredo. 8 spreadsheet that we forwarded to him of the cases that were 9 going to be reviewed. I believe this is the -- I don't know if this is all the Okay. I don't know if this is the 10 Q And so you're looking -- you're looking right now at 11 the attachments to Government Exhibit 20A; is that right? 12 A Yes. 13 Q And just -- can you just tell the jury what the attachment 14 is generally? 15 A 16 internal program that we use to track our cases. 17 looks for fiscal year '10. 18 inventory. 19 Q 20 were interested in; is that right? 21 A Correct. 22 Q Okay. 23 is that right? 24 A Yes. 25 Q What are the highlights on the Excel spreadsheet? It looks like a copy of fiscal year '10 cases from our But it only It doesn't look like all our And fiscal year '10, that was the year that the inspectors And there are highlights on that Excel spreadsheet; Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 250 of 311839 1 A 2 email to highlight the 40 closed and 10 open for McAllen and 3 five closed and three open for Laredo. 4 Q 5 the defendant that he instructed you to highlight? 6 A 7 it. 8 Q Isn't that the Excel spreadsheet that you highlighted for It could be. I mean, I think we went back and forth with I don't recall. Now, that is -If you go back to the first email of Government's 9 10 It could have been the ones that were responding to his Exhibit 20A. That document is attached to this January 24, 2012, email; 11 12 is that right? You can go ahead and look at page 1 of 13 Government's Exhibit 20A. 14 and look at the screen. 15 A Uh-huh. 16 Q The attachment that's attached to the January 24, 2012 -- 17 A Okay. 18 Q -- email; is that right? 19 at on the screen there. 20 A 21 attachment? 22 Q 23 it says attachment? 24 A Okay. 25 Q Where Mr. Starnes is actually placing the arrow there? Ms. Hinojosa, if you'd just go ahead Okay. Just based on what you're looking On the screen I just see one page. To the attachment, yes. You're referring to an So if you'll look right here where Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 251 of 311840 1 A Uh-huh. 2 Q You see the attachments are reflected on the January 24, 3 2012, email; is that right? 4 A Okay. 5 Q So that Excel spreadsheet that you're looking at with the 6 highlights was attached in an email from the defendant to you on 7 January 24, 2012? 8 A Okay. 9 Q Ms. Hinojosa, why was the defendant sending you that Excel Yes. 10 spreadsheet with those highlights on January 24, 2012? 11 A MR. COONEY: 12 13 I don't recall. witness, Your Honor? THE COURT: 14 15 BY MR. COONEY 16 Q You may. I'd like to show you Government's Exhibit 20B. And, Mr. Starnes, can you go ahead and put 20B up? 17 18 Now, may I go ahead and approach the And you can go ahead and again highlight just the first two. First if you could start just with the attachment again to 19 20 Government's Exhibit 20B. What is the attachment to 21 Government's Exhibit 20B? 22 A 23 with highlights of cases that were going to be looked at. 24 Q It's the same Excel spreadsheet, correct? 25 A Yes. It looks like the same attachment from the previous exhibit Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 252 of 311841 1 Q With the same highlights? 2 A Yes. 3 Q The ones that were highlighted for the inspectors? 4 A Yes. 5 Q Now, Ms. Hinojosa, that spreadsheet that you're looking at 6 now, if you'll look at the screen, that was sent to you in an 7 attachment on January 25, 2012, from the defendant, was it not? 8 A Yes. 9 Q Why was the defendant sending you that Excel spreadsheet 10 with the highlighted cases for the inspectors on January 25, 11 2012? 12 A I don't recall. 13 Q At the time that the defendant sent you those emails, and 14 particularly on January 25, 2012, did he give you any 15 assignments with respect to those cases? 16 A I don't recall. 17 Q Do you recall whether he instructed you to obtain any of 18 those case files from the case file room? 19 A I don't recall. 20 Q Do you recall whether he instructed you to obtain those case 21 files and put them in the conference room in the McAllen field 22 office? 23 A I don't recall. 24 Q Now, Ms. Hinojosa, I want to go back to that case file room 25 key card access. You already testified that you think that Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 253 of 311842 1 every time you put your key card up against the reader, it 2 created a record of when you went in; is that right? 3 A Yes. 4 Q And actually if I showed you Defense Exhibit No. 9, which is 5 already in evidence, which is just a set of records, not from 6 that date necessarily, but of days in which your key card were 7 used, would you dispute that it's an accurate record? 8 A No. 9 Q And if those records showed that you went in and accessed 10 the file room 20 times on January 25, 2012, would you dispute 11 that? 12 A No. 13 Q Now, just when you access the file room, did you -- did you 14 always access, or did you routinely access it 20 times a day? 15 A I was in there quite a bit. 16 Q Were there days where you accessed it perhaps just two or 17 three times? 18 A Yes. 19 Q And days where you accessed it four or five times? 20 A Yes. 21 Q And days where you might have accessed it 30 times? 22 A Correct. 23 Q But there was no set number of times that you ever went into 24 the case file room? 25 A No. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 254 of 311843 MR. COONEY: 1 2 Would you go ahead and queue up Government's Exhibit 21? 3 MR. EASTEPP: We don't have a 21. 4 MR. COONEY: You don't have a 21? I apologize. 5 One second before you put up 21. 6 21 is the exhibit we discussed this morning, compliant with 7 what we discussed. MR. EASTEPP: 8 9 obviously. THE COURT: 10 11 Well, I mean, you're going to show it in the form that we looked at last night, correct? MR. KIDD: 12 13 Correct, and also compliant with what we discussed this morning. 14 THE COURT: 15 MR. EASTEPP: 16 Any objections to that? No, sir. I accept the Court's prior order. THE COURT: 17 18 I have not seen this in this form All right. We're now admitting 21 into evidence. MR. COONEY: 19 Thank you, Your Honor. 20 BY MR. COONEY 21 Q 22 Exhibit 21, can you see it there on the screen, Ms. Hinojosa? 23 A Yes. 24 Q All right. 25 right-hand corner; is that right? All right. Before we do anything else with Government's And you see the picture there in the upper Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 255 of 311844 1 A Yes. 2 Q I'm going to go ahead and try this. 3 before. I've tried this once I'm going to try it again. Do you see the arrow that I've just placed on Government's 4 5 Exhibit 21 in the upper right-hand corner there in the picture? 6 A Yes. 7 Q Well, actually, let me ask you a question before I ask you 8 about my arrow. 9 A I can't tell. 10 Q What is that a photograph of? 11 A I can't tell what area that is. 12 Q Is that the DHS-OIG office? 13 A I couldn't -- I couldn't say. 14 Q You can't say? 15 A No. 16 Q Well, is that the DHS-OIG McAllen field office? 17 A I don't know. 18 Q All right. 19 the McAllen field office that you work in, does it have 20 surveillance video? 21 A Yes. 22 Q Is there surveillance video in the hallways? 23 A Yes. 24 Q Is there surveillance video inside the case file room? 25 A Yes. I'm sorry, Ms. Hinojosa. What is that? I don't know what desk area that is. Well, let me ask you these questions too. Does Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 256 of 311845 1 Q 2 room before? 3 A Yes. 4 Q Let me erase my arrow. Why don't you go ahead and play some of Government's 5 6 Have you ever seen surveillance video from the case file Exhibit 21. 7 (Tape playing.) 8 MR. COONEY: 9 Why don't you go ahead and stop, Mr. Starnes. 10 BY MR. COONEY: 11 Q 12 Exhibit 21, the photograph there. 13 photograph? 14 A Yes. 15 Q Who is that there in the photograph? 16 A That's me. 17 Q What are you holding in that photograph? 18 A Case files. 19 Q Now do you recognize where that is? 20 A Yes. 21 Q Where is that? 22 A It's in my -- the McAllen office. 23 Q Now, where -- in what direction are you walking with those 24 case files? 25 A Ms. Hinojosa, go ahead and take a look at Government's I don't know. Do you recognize that Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 257 of 311846 1 Q Okay. MR. COONEY: 2 3 Mr. Starnes, why don't we go ahead and play a little bit more. 4 (Tape playing.) 5 MR. COONEY: Why don't you go ahead and stop the video. 6 BY MR. COONEY: 7 Q 8 Government's Exhibit 21? 9 A Yes. 10 Q Who is that? 11 A Gene Pedraza. 12 Q Do you recognize what direction he is walking in now that 13 you see that? 14 A No. 15 Q Can you see where he walked out of just a few seconds prior? 16 A I don't know if that was my office or his office. Ms. Hinojosa, do you recognize the person who now appears in 17 MR. COONEY: 18 (Tape playing.) 19 MR. COONEY: Why don't you keep going, Mr. Starnes. Why don't you go ahead and stop, 20 Mr. Starnes. 21 BY MR. COONEY: 22 Q Who is that who just appeared in Government's Exhibit 21? 23 A Me. 24 Q And who is the person on the left-hand side again? 25 A Gene Pedraza. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 258 of 311847 1 Q Now, based on that, does that help orient you as to what 2 you're looking at? 3 A No. 4 MR. COONEY: 5 (Tape playing.) 6 MR. COONEY: 7 BY MR. COONEY: 8 Q 9 video? Why don't you keep going, Mr. Starnes. Why don't you stop it real quick. Ms. Hinojosa, are you and the defendant talking in that 10 A It appears that way. 11 Q What are you talking about? 12 A I have no idea. 13 Q As you sit here, do you remember this video? 14 A From -- 15 Q Do you remember the events going on in this video? 16 A On that date? MR. COONEY: 17 18 No. Mr. Starnes. 19 (Tape playing.) 20 MR. COONEY: 21 Why don't you go ahead and keep going, Going to have to bear with us for just a few seconds here. Go ahead and stop that real quick. 22 23 BY MR. COONEY: 24 Q 25 Government's Exhibit 21 just went a little bit dark, did it not? The camera angle up in the upper right-hand corner of Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 259 of 311848 1 A Yes. 2 Q Do you know why? 3 A No. 4 MR. COONEY: 5 (Tape playing.) 6 MR. COONEY: 7 BY MR. COONEY 8 Q 9 Exhibit 21? Why don't you keep going. Why don't you go ahead and stop the video. Do you recognize the person depicted in Government's 10 A Yes. 11 Q Who is that? 12 A Me. 13 Q What are you carrying? 14 A Case files. 15 Q Now, as you're looking at that more, do you have any sense 16 of where in the McAllen field office you are? 17 A 18 room. 19 Q 20 from? 21 A It looked like -- was that my office? 22 Q I'm asking you. 23 A I'd have to look at it again. 24 Q All right. 25 Down the hall, it looks like going towards the conference Based on what you just saw, could you see where you came MR. COONEY: Why don't we keep going. Go ahead. Yeah, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 260 of 311849 1 why don't you rewind, Mr. Starnes. 2 (Tape playing.) 3 MR. COONEY: Why don't you go ahead and stop it now. 4 BY MR. COONEY: 5 Q Were you able to tell from that? 6 A It looks like the case file room. 7 MR. COONEY: 8 (Tape playing.) 9 MR. COONEY: Why don't you keep going. Why don't you go ahead and stop it. 10 BY MR. COONEY 11 Q 12 the time of this clip. 13 seconds this has been running. 14 the record. And I now realize we do have time there at the bottom, just Not the date and time, but the number of I'll start calling it out for I see we've stopped it here at 0139. Ms. Hinojosa, who is that depicted in the exhibit? 15 16 A Me. 17 Q And now looking at it now, do you have an orientation of 18 where you are? 19 A I'm down the hall going towards my office. 20 Q What's behind you? 21 A The conference room. 22 Q Do you have those case files in your hand? 23 A No. 24 MR. COONEY: 25 (Tape playing.) Why don't you keep going, Mr. Starnes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 261 of 311850 MR. COONEY: 1 Why don't you stop the video. Thank you. 2 BY MR. COONEY 3 Q 4 happened in the camera angle in the top right corner? 5 A The top right corner? 6 Q Yes. 7 A It shows me going into the case file room. 8 Q And am I right that you just moved to the right on the 9 video? I've stopped it at 145. Now, first, can you describe what That you just watched? 10 A Yes. 11 Q Now, how do you know that that shows you going into the case 12 file room? 13 A 14 case file room. 15 Q 16 right-hand corner? 17 A Yes. 18 Q Is that you in the bottom right-hand corner of Government's 19 Exhibit 21 at 145? 20 A Yes. 21 Q Is that the case file room? 22 A Yes. 23 24 25 Because the second one -- the second frame shows me in the The second frame. MR. COONEY: little bit? Is that the one immediately below on the Now, can we go ahead and back it up just a Thank you. All right. Why don't you go ahead and play. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 262 of 311851 1 (Tape playing.) 2 MR. COONEY: Stop. 3 BY MR. COONEY 4 Q 5 making a right into the case file room? 6 A Yes. 7 Q Now, on the prior videos, we saw you coming out of a room on 8 the left-hand side; is that correct? 9 A Correct. 10 Q What is that? 11 A It's either my office or Gene's office. 12 Q Now, right here -- and I've stopped it at 143 -- who is that 13 depicted in the bottom left-hand corner of camera angle 2? 14 A So based on your testimony, am I right that that's you Gene Pedraza. MR. COONEY: 15 16 Why don't you keep going, Mr. Starnes. (Tape playing.). MR. COONEY: 17 Why don't you stop it. 18 BY MR. COONEY: 19 Q 20 key card? 21 A Yes. 22 Q Was it possible to access the file room without the key 23 card? 24 A I believe you can use your office key to enter it. 25 Q How did you use -- what did you use when you entered the Now, to enter that case file room, did you need to use your Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 263 of 311852 1 case file room? 2 A I always used my access card. 3 Q Is that what you did here in what we've depicted on 4 Government's Exhibit 21? 5 A Yes. 6 MR. COONEY: 7 (Tape playing.) 8 MR. COONEY: 9 Why don't you keep going, Mr. Starnes. Stop it. BY MR. COONEY 10 Q 11 Exhibit 21 where we stopped it at 151? 12 A Gene Pedraza entered the case file room. 13 Q Did he enter behind you? 14 A Yes. 15 Q Did he use his key card to do that? 16 A Probably. 17 Q Do you want to back up and look at it again? 18 A Yes. MR. COONEY: 19 20 What just happened at camera angle 5 in Government's Mr. Starnes. 21 Okay. Why don't we go ahead and back it up, Go ahead. (Tape playing.). MR. COONEY: 22 Is that a yes? Go ahead and stop it. 23 BY MR. COONEY: 24 Q Did you get a chance to see that? 25 A Yes. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 264 of 311853 1 Q What does it look like? 2 A It looks like the door didn't close completely. 3 Q Do you remember this day? 4 A No, I don't. 5 MR. COONEY: 6 (Tape playing.) 7 MR. COONEY: 8 Mr. Starnes? 9 BY MR. COONEY Why don't you keep going, Mr. Starnes. Would you go ahead and stop it, 10 Q Stopped Government's Exhibit 21 at minute 220. 11 depicted in camera angle 5? 12 A Gene Pedraza. 13 Q What is the defendant Mr. Pedraza holding? 14 A Case files. 15 MR. COONEY: 16 (Tape playing.) 17 MR. COONEY: Who is Keep going, Mr. Starnes. Can you stop the video, please? 18 BY MR. COONEY 19 Q 20 No. 2? 21 A Gene Pedraza walking down the hall. 22 Q What is he holding? 23 A Case files. 24 Q In what direction is he going? 25 A Towards the conference room. I've stopped it at 227. What is depicted in camera angle Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 265 of 311854 1 Q Did the defendant Mr. Pedraza usually access the case file 2 room himself to collect case files? 3 A Yes. 4 Q He didn't usually have you do that work? 5 A I did it most of the time, but he would go in there too. MR. COONEY: 6 7 (Tape playing.). MR. COONEY: 8 9 Go ahead and keep going, Mr. Starnes. please. Why don't you go ahead and stop that, Actually, go ahead and keep going. You can stop the 10 video. 11 BY MR. COONEY 12 Q Who is depicted in camera angle No. 2? 13 A Me. 14 Q What are you holding in that photograph? 15 A Case files. 16 Q And what direction are you walking? 17 A Towards the conference room. 18 Q Ms. Hinojosa, when the defendant accessed the case file 19 room, did he ordinarily access it at the same time you did? 20 A Sometimes we would go in together. 21 Q Did he always -- if he needed access to the case file room, 22 did he have you key in for him, or was he able to key in 23 himself? 24 A No, he can key it himself. 25 Q Did he have his own access card? Sometimes we wouldn't. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 266 of 311855 1 A Yes. 2 Q Now, I asked you some questions about the access key card. 3 Well, actually, let me ask you again one more time. 4 going on in this video? 5 A 6 looks like we're walking towards the conference room. 7 Q 8 you on January 24, 2012, and January 25, 2012? 9 A I don't recall. 10 Q Now, if electronic records show that you accessed the key 11 card room -- excuse me, the case file room 20 times on 12 January 25, 2012, would you dispute that? 13 A No. 14 Q If someone went through this video for the entire day on 15 January 25, 2012, and counted 20 entries into the case file 16 room, would you dispute that that occurred? 17 A No. 18 Q If there on this video were the exact same number of entries 19 as recorded on the electronic records, would you dispute that 20 the video depicts January 25, 2012? 21 A No. 22 Q Ms. Hinojosa, did you remove any case file review sheets 23 from official case files at any point in January 2012? 24 A No, I did not. 25 Q What about in February 2012? What's We're retrieving case files out of the case file room, and Is this at all related to the emails that the defendant sent Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 267 of 311856 1 A No, I did not. 2 Q What about in March 2012? 3 A No, I did not. 4 Q What about in December 2011? 5 A No, I did not. 6 Q How about in November 2011? 7 A No, I did not. 8 Q Do you have any idea what happened to the case files that 9 are depicted -- or excuse me -- that you are depicted carrying 10 towards the conference room and that the defendant are depicted 11 carrying towards the conference room on Government's Exhibit 21? 12 A I don't recall that event. 13 Q And to be clear, did you ever witness anybody else take case 14 file review sheets out of official case files in first 15 November 2011? 16 A No. 17 Q How about December 2011? 18 A No. 19 Q January 2012? 20 A No. 21 Q February 2012? 22 A No. 23 Q Or March 2012? 24 A No. 25 MR. COONEY: No further questions. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 268 of 311857 1 THE COURT: Counsel, cross? 2 MR. EASTEPP: Yes, Your Honor. CROSS-EXAMINATION 3 4 BY MR. EASTEPP 5 Q Good afternoon, Ms. Hinojosa. 6 A Good afternoon. 7 Q We obviously know each other. 8 A Yes. 9 Q And have from probably since you first got hired at the OIG, 10 as I recall. 11 A Yes. 12 Q When I was still working cases down in the Valley. I don't think Mr. Cooney covered it. 13 What were you doing 14 before you got hired at DHS-OIG? 15 A 16 Investigation Division as a tax fraud investigative aid. 17 Q And how long were you there? 18 A 21 years. 19 Q Okay. 20 parts. 21 ones that deal with us when we get an audit for our taxes, 22 correct? 23 A Correct. 24 Q And then on the other side, they have a criminal 25 investigative unit with agents that carry guns like FBI agents, I used to work for the Internal Revenue Service, Criminal I think 21 years. And so the jury understands, IRS really has two The civil revenue side, which are the auditors and the Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 269 of 311858 1 correct? 2 A Correct. 3 Q And those are the ones charged when there's a drug dealer, 4 money laundering kind of case. 5 after them, correct? 6 A Yes. 7 Q And so in that 21 years, you learned a lot in the beginning 8 about maintaining files and the integrity of files and those 9 sorts of things? Those are the people that go 10 A Correct. 11 Q Did you at times have to deal with maintaining the integrity 12 of income tax forms? 13 A Yes. 14 Q And, in fact, income tax forms under Title 26, Section 6103 15 have to be kept very secure under that statute, do they not? 16 A Yes. 17 MR. COONEY: 18 THE COURT: Objection, relevance. Overruled. 19 BY MR. EASTEPP 20 Q 21 cases or the FBI for use in one of their cases in disclosure 22 order, those are tightly maintained, are they not? 23 A Correct. 24 Q And you learned how to do that back then, did you not? 25 A Yes. Even when those files then make it to prosecutors for court Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 270 of 311859 1 Q Did you at the IRS already understand how to maintain the 2 integrity of grand jury materials? 3 A Yes. 4 Q And grand jury materials, frankly, are simply before a case 5 goes to court when the grand jury is still in session and 6 investigating those records, by Criminal Procedure Rule 6E have 7 to be kept secret, do they not? 8 A Yes. 9 Q And even within the agencies, they have to be kept separate 10 and locked up just like the tax forms do. 11 A Yes. 12 Q And you learned all of that before you got to DHS-OIG. 13 A Yes, I did. 14 Q So when you got there as a GS-9, you were a pretty good 15 hire, I would think, for the 21 year veteran from the IRS when 16 they got you at this OIG. 17 A Yes. 18 Q You had a lot of experience. 19 A I did. 20 Q You didn't get hired off the street? 21 A No, I did not. 22 Q Did you know Gene Pedraza at all during those 21 years 23 before you got there? 24 A No, I did not. 25 Q When you got hired, was it more than just him that hired You can brag on yourself. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 271 of 311860 1 you? I mean, did anybody else in the agency play a role? 2 A No, I believe he's the one that interviewed me. 3 Q Once you got this promotion to GS-11, who made that decision 4 that that position needed to be changed by classification or you 5 needed to be changed? 6 A I think it came from headquarters. 7 Q So that was not something -- he may have endorsed it, but it 8 wasn't his idea. 9 A Correct. 10 Q And day-to-day you had a ton of responsibilities within the 11 OIG, did you not? 12 A Yes, I did. 13 Q Brief us on what your responsibilities were once you became 14 the administrative assistant for the OIG. 15 A 16 the agents needed as far as research, I would do that research. 17 Handle the budget. 18 monthly statements on purchases that were made. 19 ladies up at headquarters in reference to any office furniture 20 that was being ordered for the office. 21 spreadsheets or photo lineups for the agents. 22 needed for the cases. 23 Q 24 inventory. 25 level and the flow of the cases the agents were working on? I would answer phones. I would order supplies. Whatever I had to deal with monthly -- reconciling my Deal with the And just doing Whatever they You mentioned the ladies at Washington with regard to Were you also dealing with people at the Washington Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 272 of 311861 1 A No, I don't recall that. 2 Q I mean, if we've seen -- 3 A I'm sorry. 4 reports up to headquarters. 5 with all the exhibits. 6 Q And at times would you get inquiries back on those -- 7 A Yes. 8 Q -- that came to you, even though you obviously were not the 9 agent -- I'm sorry. Yes. I would send up -- the final I'd make copies and submit, along 10 A Correct. 11 Q -- correct? 12 A Uh-huh. 13 Q And was that a fairly regular occurrence back and forth? 14 A Yes. 15 Q Now, when the inspection is coming up that happened in 16 September of 2011, y'all knew it was happening, correct? 17 A Yes. 18 Q And, in fact, it had been postponed from an earlier date, 19 had it not? 20 A Yes. 21 Q Not because of any issue at McAllen. 22 was it not? 23 A 24 initially I think scheduled for April, and then it was moved to 25 September. It was budget issues, I don't recall why it was postponed; but, yes. It was Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 273 of 311862 1 Q But that was not a decision made in McAllen that came out of 2 Washington? 3 A Correct. 4 Q Okay. 5 anybody from the McAllen office have the opportunity to go 6 observe a prior -- the inspection going on just prior to 7 McAllen's? 8 A Yes. 9 Q And who was that? 10 A Me. 11 Q And why did you go? 12 A Gene asked me to go since I was the one that handled all the 13 case files. 14 Q 15 inspection? 16 A In Tucson. 17 Q And how long were you there? 18 A I think fly in Monday, fly back Friday, so three days. 19 Q While you were there, did you liaison with the inspectors 20 who flew in from Washington to do the inspection? 21 A Yes, I did. 22 Q Did you know any of them ahead of time? 23 A I believe I had met maybe Terrance Demeroto once before. 24 I'm not sure. 25 Q Before the inspection inspectors were to come, did And where was that? Where did you go to observe an Anyway, that was a name you were familiar with? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 274 of 311863 1 A Yes. 2 Q While you were there in Tucson, what -- what did you do 3 vis-a-vis what the inspectors were doing? 4 you have a role? 5 A 6 had some checklists that they were using while reviewing the 7 case files. 8 out of the case file, to just mark that down. No. 10 13 THE COURT: We just -- one of the jurors indicated they My inclination is to finish this witness and quit for the day. 15 Eastepp. I don't know how long you're going to be with her, Mr. MR. EASTEPP: 17 expeditious. 18 speeded up. 19 Let's take a short break. needed a break. 14 16 And they asked me to just -- whatever was missing (Jury leaves courtroom) 11 12 They asked me to go through the case files, and they THE COURT: 9 Just watch, or did A few more minutes, but I'll try to be I hate to tell you, but I think everything has I know you hate to hear that. THE COURT: No, that wasn't a complaint. That was -- 20 all I was -- you know, if you told me you were going to be a 21 couple hours with her, then I might rethink that. 22 it seemed like you were going fairly rapidly. 23 24 25 But, I mean, Let's take a stretch break and try to be back in about ten minutes. (Recess taken from 5:06 to 5:23.) Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 275 of 311864 THE COURT: 1 2 Okay. Are we ready? (Jury enters courtroom) THE COURT: 3 All right. Be seated, everyone. Mr. Eastepp, go ahead. 4 5 MR. EASTEPP: 6 THE COURT: Thank you, Your Honor. Eastepp. You'll notice that I mispronounce 7 his name about 50 percent of the time. 8 Maybe 75 percent. 9 BY MR. EASTEPP And I apologize to him. 10 Q Ms. Hinojosa, I think we left off you're in Tucson helping 11 the inspection team go through case files. 12 A Correct. 13 Q Is part of that you're seeing if they're put together 14 correctly, or are you looking at the integrity of them? 15 the purpose of that? 16 A No, to see if they were put in correctly. 17 Q Okay. 18 through there? 19 A No, I don't. 20 Q Did you do it for days or just a few hours? 21 A No, we did it for a couple of days. 22 Q Was somebody assisting you? 23 A There was several of us in the room, and I believe there was 24 like three of us all working on that specific assignment. 25 Q What is And do you recall about how many you would have gone Were y'all going into the case file room in Tucson and Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 276 of 311865 1 retrieving them? 2 A I believe they had their student intern bring us the cases. 3 Q Would it have been similar later to what occurred in 4 McAllen? 5 A Yes. 6 Q Once you -- was that essentially all you did while you were 7 there in Tucson? 8 A 9 and -- I don't think they showed me the evidence. There was a set number of files they were looking at? No, they showed me how they kept like their firearms room They didn't 10 want me to look at that. But they pretty much just showed me 11 how they kept their cases and their office there in Tucson. 12 Q 13 what the inspection team was going to be looking for in McAllen 14 when they came? 15 A Correct. 16 Q Was that the whole purpose you were there? 17 A Yes. 18 Q So when you go back to McAllen when that trip is over, did 19 you brief Special Agent Pedraza about what to expect in the 20 inspection? 21 A Yes. 22 Q Would it be safe to say the inspections, particularly the 23 one in McAllen, was essentially an open book test? 24 what they were going to be looking at? 25 A Were you able during that visit to get a pretty good idea of Yes. Y'all knew Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 277 of 311866 1 Q And would that have been true in Tucson? 2 A Yes. 3 Q That's the way they did inspections, correct? 4 A Correct. 5 Q In the days and weeks leading up to the inspection itself in 6 McAllen, was it busy for you and for Gene Pedraza? 7 A Yes. 8 Q And why was it busy for you all? 9 A We were trying to get everything in order for the 10 inspectors. 11 Q Would that have been more than just case files? 12 A Yes. 13 Q It's essentially an inventory, an audit, or whatever term 14 you want to have? 15 A Correct. 16 Q But y'all knew what they were going to be looking for, but 17 that's what it's going to be? 18 A Yes. 19 Q Right. 20 it, right? 21 A Yes. 22 Q And the agents have guns, they have body armor or whatever 23 else agents have, correct? 24 A Correct. 25 Q And all that's going to be looked at, right? It was everything in the office, even the vehicles. Because the office has a lot of federal equipment in Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 278 of 311867 1 A Yes. 2 Q So what about the case files of the -- two of you and 3 Special Agent in Charge Pedraza, who was trying to make sure all 4 the case files got updated? 5 A We both were. 6 Q What were you doing in regard to that? 7 A I was looking through the case files to make sure that 8 everything was properly filed in the case file. 9 Q And what do you mean by that? Explain that more to somebody 10 who doesn't have your experience in looking at case files. 11 A 12 like a six part folder, and they each have a tab. 13 what forms go behind what division of that case file. 14 Q 15 how many case files y'all would have had in the room? 16 A In the room? 17 Q Right. 18 A Gosh. 19 Q Would that have spanned many years? 20 A Yes. 21 Q How are they cataloged or placed in the file room where 22 somebody knows how to go get a particular file? 23 A 24 pending, and we would file them by fiscal year. 25 Q Well, the case file that we file all our paperwork in is And it lists At about the time of the inspection, do you remember about 300? I really don't know. I had them in different sections. It was closed, open and And are there -- we saw one view from the camera, but Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 279 of 311868 1 there's more to that room than you can see on the camera, 2 correct? 3 A Yes. 4 Q That's just a camera pointed at the door. 5 A Correct. 6 Q The shelving is to the other side? 7 A Yes. 8 Q And are they as tall as me? 9 A They're fairly tall. 10 Q Were they mostly full of case files? 11 A Yes. 12 were full. 13 Q 14 blue original files. 15 A Yes. 16 Q And you were talking about six parts. 17 there's a first brown internal that fans open, a second one, and 18 then of course the back page. 19 A Yes. 20 Q That's what you're referring to? 21 A Yes. 22 Q Does this one, just as I opened it without looking at 23 everything in it, appear to be what a typical case file would 24 look like? 25 A Are they fairly tall shelves? There was maybe at least three or four shelves that I'm holding what's previously been identified as one of the Yes. Do you recognize that? So if I open it, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 280 of 311869 1 Q 2 year? 3 A Fiscal year. 4 Q So a 2010 file could actually have been in the fall of '09? 5 A Yes. 6 Q And is that a directive from headquarters how they wanted 7 that stored, or is that some decision that was made at the local 8 level? 9 A 10 And you said they're in there by fiscal year or calendar No, that's headquarters. files. THE COURT: 11 12 That's the way they label the case Fiscal year being October 1 through September 30th? THE WITNESS: 13 Correct. 14 BY MR. EASTEPP 15 Q 16 and Special Agent Pedraza are looking through case files trying 17 to get them updated? 18 A Yes. 19 Q And there came a point in time shortly before the inspection 20 where you knew exactly which files because y'all got to pick 21 them, right? 22 A Yes. 23 Q We previously looked at the exhibit they showed you out of 24 Government's Exhibit 20 that had the January 24th and 25th 25 emails. So I think you've already said in the days leading up, you Do you recall that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 281 of 311870 1 A Yes. 2 Q I want to show you from Pedraza's Exhibit No. 2. MR. EASTEPP: 3 4 I think we agree, Judge, this is the one we've agreed, counsel has agreed. MR. COONEY: 5 No objection. 6 BY MR. EASTEPP 7 Q 8 that the one we saw kind of ended right here from C.J. Chang, 9 Chieh Chang, and then picked up above this where I'm covering it To just show you. You recall -- let me do it this way -- 10 up with the January 25th. 11 A 12 cases that were going to be reviewed. 13 Q 14 earlier, again, probably because somebody used an old email and 15 a return, so it's not an accusation. 16 have a little more information. Yeah. Right. Do you recall that? I recall emails back and forth to try to get him the Now, if we look, this is a piece we didn't see This just -- this seems to Do you see this next one from Mr. Pedraza to C.J. Chang? 17 18 A Okay. 19 Q Where, after he's been asked about getting the cases, his 20 response, "I'll have them right after lunch if that's okay. 21 waiting for Cindy to give me a hand, and she's out at the 22 moment." 23 A Okay. 24 Q Does that jibe with your memory that you were helping with 25 that process? I'm Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 282 of 311871 1 A Yes. 2 Q And do you recall what you would have been doing to, quote, 3 give him a hand? 4 A 5 which ones were going to be looked at. 6 Q 7 August 31, 11:00 in the morning. 8 A Okay. 9 Q Do you have an independent memory of whether y'all compiled We were probably trying to get the case files together as to And so that it's clear, that response from him is on 10 that list later this day or the next day or a day after that? 11 A I don't recall. 12 Q Do you recall seeing the Brownsville agents in the McAllen 13 office on September 1? 14 A No, I don't recall. 15 Q Would that be unusual at the point in time Special Agent 16 Kris Healey and Special Agent Robert Vargas were officing down 17 here in Cameron County, that they would pop into McAllen for 18 some reason? 19 A Yes. 20 Q Not unusual? 21 A No. 22 Q And would it have been -- were they there fairly often in 23 that time period after they moved down here? 24 A I don't recall them being at McAllen very often. 25 Q In the days, though -- on September 1, that's a couple weeks Do you have an independent -- It wasn't unusual, no. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 283 of 311872 1 before the inspectors. 2 A Okay. 3 Q Right? 4 when they came? 5 A I don't remember the exact date. 6 Q But you don't dispute if there's been other testimony? 7 A No. 8 Q That on September 1, that Mr. Pedraza would have wanted to 9 go over case files with agents in this process of getting things Do you remember it was about September 12th or so 10 updated. 11 A Before the inspection? 12 Q Right. 13 A Yes. 14 Q And, of course, he would have known at some point in that 15 preinspection period exactly which ones they were going to look 16 at and which ones they were not? 17 A Yes. 18 Q During the inspection, were you talking to the inspectors 19 and helping them during that time period? 20 A Yes. 21 Q Okay. 22 doing with the inspectors. 23 A 24 needed other cases to look at, I was helping them out with that. 25 If they had any questions, I was -- whatever they needed, I was Kind of tell me what or tell the jury what you were If they had any questions as far as the cases or if they Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 284 of 311873 1 helping them out with. 2 Q 3 needed it, they were going to get it? 4 A Yes. 5 Q And was that done as expeditiously as possible? 6 A Yes. 7 Q So if one of them came to you and said, "Cindy, I need four 8 more case files," they were going to get four more case files? 9 A Yes. 10 Q As quick as you could get them? 11 A Yes. 12 Q Now, were you interviewed by any of the inspectors -- 13 A Yes. 14 Q -- during this? 15 A James Izzard. 16 Q And about how long did you talk to him? 17 A I don't think I was in there 30 minutes. 18 Q And was it just a general discussion about the morale of the 19 office and those sorts of things? 20 A Yes. 21 Q And did you have good things to say or bad things to say 22 about your supervisors? 23 A No, I had good things to say. 24 Q Particularly about Special Agent Pedraza? 25 A Yes. And was that pretty much the order of the day? That if they And do you recall who interviewed you? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 285 of 311874 1 Q Special Agent Warren? 2 A I didn't have any problem with Jody either. 3 Q There were issues about whether he was -- how often he was 4 in the office? 5 A Yes. 6 Q And were you up-front about that with them? 7 A I don't recall. 8 Q If you were asked, would you have told them the truth 9 obviously? 10 A Yes. 11 Q Because there were times that he was not in the office as 12 much as Special Agent Pedraza, correct? 13 A Correct. 14 Q Now, going to a different subject quickly. 15 what that is -- 16 A Yes. 17 Q -- from all your experience. 18 A Yes. 19 Q In the process of MOAs, were you ever a person that had to 20 go take an MOA and get an agent to sign it who was not the agent 21 who created it? 22 A Yes. 23 Q And under what circumstance would that happen? 24 A A lot of times the agent wasn't there to sign it, so I would 25 just ask like the duty agent if he could sign it for me. MOAs. You know And it Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 286 of 311875 1 could have been because I was trying to get a report out and I 2 needed the MOA signed. 3 Q 4 Would they sign the day you hand it to them or on a -- or list a 5 different date? 6 A It could have been the date they signed it. 7 Q What if there's a preprinted date? 8 A I think they just signed it. 9 Q And left the preprinted part there? 10 A Yes. 11 Q When MOAs were getting passed around the office, were they 12 typically still in Word form versus like PDF form? 13 A No, I think they were still in Word form. 14 Q Was the intern Carlos Mandes ever involved in like printing 15 of MOAs or doing anything else with MOAs? 16 A I don't recall if he had anything to do with the MOAs. 17 Q Were you ever tasked to print MOAs? 18 A I don't think so, no. 19 Q In this process of getting MOAs signed, if after the special 20 agent signed it -- and who would you go to first of the two 21 signature blocks that we've seen a bunch of? 22 A 23 If they weren't, I'd ask somebody else to sign it. 24 Q 25 situations, would that always be before it went to the Do you know what date somebody would have signed it, an MOA? If the agent was there, I would -- I mean, he would sign it. And would they -- whether it was either of those two Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 287 of 311876 1 supervisor to sign? 2 A No. 3 Q Meaning you would get Gene's signature before you would get 4 the agent's signature sometimes? 5 A That sometimes happened, yes. 6 Q Because it's already been finalized? 7 A Correct. 8 Q So whoever signs it first signs it? 9 A Yes. 10 Q At times when the agents were given the go ahead to print 11 their own MOA, that it's good to go, print it and they signed 12 it, do you know where they would go awaiting the signature of a 13 supervisor? 14 A I don't know if they would put it in Gene's box, mailbox. 15 Q Tell us about what the mailbox is. 16 A We have what was called a distribution room, and that's 17 where we had the copy room and some of our office supplies. 18 each employee had a cubby with their name on it for any 19 correspondence that was coming in and out of the office. 20 Q 21 office, would have had the mailbox that was most full, meaning 22 his filled up more than everybody else's? 23 A Yes. 24 Q Who would go retrieve the MOAs out of his box for him to 25 sign? And And would it seem to make sense that Gene, as head of the Did you ever observe that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 288 of 311877 1 A No. He probably did it. 2 Q Did you ever see him signing stacks of MOAs or even one MOA? 3 A Yes. 4 Q And did you see both those situations where he would be 5 signing stacks of them? 6 A Stacks of them? 7 Q Or several at a time. 8 A Yes. 9 Q Okay. 10 A I couldn't say. 11 Q More than once in the time you were the administrative 12 assistant? 13 A Oh, yes, yes. 14 Q I mean, on a monthly basis, you know -- 15 A Oh, no. 16 signature all the time. 17 Q There was a constant flow of that, correct? 18 A Yes. 19 Q There's also a constant flow, was there not, of new cases 20 being opened in Washington through JIC, sending them down to you 21 all? 22 A Yes. 23 Q From your -- what you knew about the case files and your 24 knowledge of the job, was almost everything getting opened, any 25 allegation? And about how often would you see him doing that? I mean, we were so busy, there was MOAs needing Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 289 of 311878 1 A Yes. There was -- yes, we had a big inventory. 2 Q Then whether it was a -- you know, a dog case or a good 3 case, there's still going to be paperwork that has to go -- the 4 flow that goes through? 5 A Correct. MR. COONEY: 6 Objection. This witness has testified that 7 she played an administrative function, not a law enforcement 8 function in the office. THE COURT: 9 There's been no foundation. I think she was qualified to answer that. 10 BY MR. EASTEPP 11 Q 12 cases and all the agents? 13 A Yes. 14 Q What are the Laredo agents doing with their MOAs? 15 A They're sending them to us too. 16 were sending them via email. 17 we would just print them up there and get them signed there. 18 Q 19 Laredo MOAs? 20 A Yes. 21 Q That was kind of standard procedure? 22 A Yes. 23 Q And is a part of that all this constant flow of the 24 paperwork? 25 A So going back, there's a constant flow of MOAs from all the I can't remember if they It was probably email. And then So would it be that somebody in McAllen is always signing Correct. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 290 of 311879 1 Q After they were signed, you've now got it signed by both an 2 agent and a supervisor, where did they go? 3 A 4 their mailbox and put the original in the case file. 5 Q And is that something you personally did? 6 A Yes. 7 Q Were you the only one that did that? 8 A I don't recall if Carlos did that too. 9 Q That being the student intern. 10 A Correct. 11 Q But primarily would it have been you? 12 A Yes. 13 Q So once then either an AROI or an ROI is done, who would put 14 together all of that to get it to Washington? 15 A I did. 16 Q And how would you gather that up to get it to Washington? 17 A I would proofread the ROI, retrieve the case file, and then 18 retrieve all the MOAs that were associated and marked as an 19 exhibit, and I would put it together, make a copy, and put the 20 exhibit tabs on it. 21 Q And why would you proofread the AROI? 22 A Oh, sometimes there were typos on there. 23 Q Okay. 24 A Yes. 25 Q -- before it went? I would make copies of the MOA for the agent and put it in And they would need to be changed -- And could that have been -- Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 291 of 311880 1 A Just overlooked by everybody who had seen it. 2 Q Would it -- would the AROI, the first page that has a 3 signature block, need to be resigned at that point if it had to 4 be reprinted? 5 A 6 out. 7 Q 8 then it's printed and signed finally? 9 A Yes. 10 Q Would the agent approve the edits or the supervisors approve 11 the edits? 12 A 13 mistake and let him know about it. 14 Q And by mistakes, are we talking about like grammatical? 15 A Yes, just grammatical. 16 report. 17 Q 18 issues? 19 A Correct. 20 Q So even when you're seeing it, it is still a, quote, live 21 document; it's still a word processing document that can be 22 changed? 23 A Yes. 24 Q After all that's done and it's signed and it goes to 25 Washington, did y'all ever have Washington either kick them back No. I would always proofread it before I would print it So after it's proofread, even you might have some edit, and No. I would sometimes tell Gene, you know, I found this I never changed the contents of the What about spacing and those sorts of word processing That's what I would correct. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 292 of 311881 1 or say they wanted something changed or anything else coming 2 back down from Washington? 3 A 4 submitted to them hard copy. 5 Q 6 the final, why they -- why are they seeing it ahead of time? 7 A 8 review it, then Gene would send it up to headquarters and then 9 they would review it. Well, that was before I would finally get the final ROI Okay. Tell us what's happened in between. If that's before Well, the agent would submit the report to Gene. Gene would Then they would send it back to Gene and 10 say, "Okay. This is good to go," and that's when he would send 11 it to me and I would proofread it and then print it out and then 12 get it ready for headquarters. 13 Q 14 going to headquarters and coming back to you, there's still 15 times that there might have been some error that everybody has 16 missed? 17 A Yes. 18 Q And that just kind of happens with word processing in your 19 experience, does it not? 20 A Yes. 21 Q What is the EDS system? 22 A It's our internal case management program. 23 know what it stands for. 24 Q Enforcement Data System maybe? 25 A I'm sorry? And so even despite all of that, of the agent and Gene and I don't even Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 293 of 311882 1 Q Enforcement Data System maybe? 2 A Yes. 3 Q The EDS system has lots of case information in it, does it 4 not? 5 A Yes. 6 Q So you really don't just need to look at one of these blue 7 files. 8 investigation and see what's going on. 9 A Yes. 10 Q What would you -- like a supervisor see in the EDS system if 11 they went in and looked? 12 A 13 violation, synopsis of what the case is related. 14 Q Like the JIC report? 15 A Yes. 16 Q Would there be notes showing what an agent might have done 17 in the case? 18 A 19 system about their case. 20 Q And how often is it to be updated? 21 A I don't know if it's supposed to be on a monthly basis. 22 remember Gene would sometimes send out emails reminding the 23 agents to not forget to update their case files on EDS. 24 Q Did you have full access to EDS like a supervisor did? 25 A Yes. Somebody who has the access can look at that Well, the name of the subject, their job title, the And the JIC report is attached. There was notes the agents were required to keep on that I Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 294 of 311883 1 Q 2 what would have been in the working file of that agent except 3 maybe anything he's not uploaded into EDS? MR. COONEY: 4 5 So you could have looked at any moment and seen pretty much Objection. That mischaracterizes the record I think we have on working files and EDS. THE COURT: 6 Why don't you rephrase your question. 7 BY MR. EASTEPP 8 Q 9 an administrative assistant, from you, could look at any At any time somebody with full access, be it a supervisor or 10 investigation on there and get a snapshot of what's going on, 11 correct? 12 A Yes. 13 Q It's supposed to be up-to-date, at least consistent with 14 whatever the rules were of when you're to update it? 15 A Correct. 16 Q And is the EDS system something that is used as a management 17 tool often? 18 A Yes. 19 Q And were you looking in it every day? 20 A I don't know if I looked at it every day. 21 looked at it every day. 22 Q Fairly often? 23 A Yes, very often. 24 Q Do you know the frequency that the supervisors of the agents 25 would have been looking? I might have Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 295 of 311884 1 A I'm sure they're looking at it every day. 2 Q It's a busy field office, right? 3 A Yes. 4 Q I mean, you're now in Houston. 5 a little more -- at least the flow of the paperwork -- less than 6 here? 7 A Yes. 8 Q Now, we've looked at a video earlier. 9 A Uh-huh. 10 Q Correct? 11 A Correct. 12 Q And one of the things that was gone over with you is -MR. EASTEPP: 13 Is there no doubt Houston is One second, Your Honor. 14 BY MR. EASTEPP: 15 Q 16 access, correct? 17 A Correct. 18 Q What's previously been admitted into this trial under 19 Pedraza's Exhibit No. 9 has been entered into evidence as that 20 record that he was referring to. 21 1536, do you recognize on here your name? 22 A Yes. 23 Q And you see this particular one starts at January 19th of 24 2012 at 11:28:34 a.m. 25 A Mr. Cooney asked you some questions about the card key Okay. And first let me -- on page Do you see that? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 296 of 311885 1 Q And just to go at least on this page, and then I'll carry 2 over to the next page. 3 morning. 4 A Okay. 5 Q If we look, Mr. Cooney talked about January 25th. 6 also want to show you -- and I'll do it with this cover. 7 start counting, you see that's the first entry for the day 8 before on the 24th. 9 A Okay. 10 Q So if you count with me one, two, three, four, five, six, 11 seven, eight, nine, ten, 11, 12. 12 you entered. 13 A Okay. 14 Q Right? 15 the morning. 16 like that? 17 A Yes. 18 Q So that's on -- starting on the 25th, that's one, two, 19 three, four, five, six, seven, eight, nine, ten on this page. 20 We go into the next number of the exhibit. 21 That's 11, 12, 13, 14, 15, 16, 17, 18, 19, 20. 22 Mr. Cooney said, correct? 23 A Okay. 24 Q Now looking at the next day, you're going back in there 25 again one, two, three, four, five, six, seven, eight, nine, ten, This one ends at 1/25 at 10:46 in the But I If we 12 times the day before that And now we're at the 1/25 where you've entered in And do you normally get to the office pretty early We stopped at ten. 20 exactly, as Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 297 of 311886 1 11, 12, 13, 14, 15. 2 three days I've shown, I could keep going through the exhibits, 3 you were in and out of there all the time. 4 A Yes. 5 Q Is that why it's hard to remember just looking at a picture 6 what day it might be? 7 A Yes. 8 Q Now, if we could go to the video itself. MR. EASTEPP: 9 10 15 times the next day. So in those just Mr. Starnes, I'm going to have to bother you for that. 11 (Tape playing.) 12 BY MR. EASTEPP: 13 Q 14 how many case files are in your arms at that time? 15 A It looks like maybe four or five. 16 Q It's several real thick ones, correct? 17 A Yes. 18 Q It's not -- does not appear to be like 50 of these? 19 A No. 20 Q Right? 21 Ms. Hinojosa, can you see and tell us in your best estimate (Tape playing.) 22 BY MR. EASTEPP 23 Q 24 think you have? 25 A Can you tell in this picture about how many case files you It looks like maybe one, but then there's like accordion Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 298 of 311887 1 files too. 2 Q 3 blue case files? 4 A 5 were to be associated with the case file. 6 Q 7 big file? 8 A 9 What would they be used for in conjunction with one of your Some continuation of the case file or maybe exhibits that So does that appear to be one file then, but just a whole Yes. (Tape playing.) 10 BY MR. EASTEPP 11 Q 12 think he's carrying? 13 A It looks like maybe five or six. 14 Q So now in total we're up to ten or 11 in your two trips, and 15 now his being the third. 16 Can you look on here and give us how many case files you (Tape playing.) 17 BY MR. EASTEPP 18 Q What does it -- how many do you appear to be carrying now? 19 A It doesn't look like there's a case file. 20 accordion files. 21 Q Meaning that's going to be -- 22 A An attachment or a continuation of a case file. 23 Q So we would not count this as an additional case file in 24 your opinion? 25 A Correct. They're just Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 299 of 311888 1 Q So we're still at about ten or 11? 2 that all you were carrying were about -- and Mr. Pedraza that we 3 saw in this video were ten or 11 of your case files? 4 A It appears that way, yes. 5 Q Whatever day that is, that's it? 6 A Yes. 7 MR. EASTEPP: 8 THE COURT: 9 MR. COONEY: So in total do you agree Pass the witness, Your Honor. Redirect, Mr. Cooney? Thank you. REDIRECT EXAMINATION 10 11 BY MR. COONEY 12 Q Let's just go ahead and pick up right there, Ms. Hinojosa. MR. COONEY: 13 Could you please, Mr. Starnes, go back 14 to -- I think it was about 146 where you can see Ms. Hinojosa 15 walking -- right there actually. 16 (Tape playing.) 17 BY MR. COONEY: 18 Q 19 145, and camera 5 depicts you going into the case file room; is 20 that right? 21 A Yes. 22 Q Now, you got to watch the entirety of this clip that we did 23 here in court, which was about two minutes or so. 24 very specific. 25 is that right? All right. So we're on Government's Exhibit 21 at minute Let me be 2 minutes 38 seconds on Government's Exhibit 21; Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 300 of 311889 1 A Okay. Yes. 2 Q In that 2 minutes and 13 seconds, you only went into the 3 case file room once, correct? 4 A In the whole video? 5 Q In the whole video in that 2 minutes and 38 seconds. 6 A It looks like that. 7 in my office? 8 Q 9 see it here on camera 5, correct? It was one, and the other times I was I don't remember. We can walk through it again if you would like. Well, you 10 A Correct. 11 Q And that's one time; is that right? 12 A Yes. 13 Q And you'd agree with me, I suppose, that Government's 14 Exhibit 21 depicts just 2 minutes and 38 seconds of whatever day 15 it is, right? 16 A Right. 17 Q And I think you recall answering questions for Mr. Eastepp 18 literally just a minute ago. 19 or 11 files; is that right? 20 A Yes. 21 Q I'm going to put Government's Exhibit -- yes, I want to go 22 ahead and use the ELMO, if that's all right. 23 Exhibit No. 9 on the ELMO. 24 the same pages that Mr. Eastepp showed you, all right? 25 I'm sorry. I think the two of you counted ten Defense And I'm going to go right back to Actually I'm going to go back to page -- there it is. Page Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 301 of 311890 1 15. So on page 15 of Government's Exhibit No. 9 depicting 2 3 January 25, 2012, do you see that record there? 4 A Yes. 5 Q And first of all, I think as you already testified, you 6 don't dispute if this depicts that you went in 20 times on 7 January 25, 2012, that, in fact, you went in with your key card 8 20 times on January 25, 2012? 9 A Correct. 10 Q Well, we show -- and I'm sorry. 11 January 25, 2012, it says here on this record is at 7:47:03 a.m. 12 You wouldn't dispute that that time is correct, would you? 13 A I wouldn't dispute it, no. 14 Q And I just want to go ahead and now flip to page 16. 15 I'm now depicting or pointing at the last time that this record 16 shows that you accessed the case file room at 4:23 p.m. at about 17 19 seconds. 18 or your key card to enter the case file room at that time on 19 January 25, 2012, would you? 20 A No. 21 Q And so that span that we just talked was basically the 22 course of a workday; is that right? 23 A Yes. 24 Q You wouldn't dispute, though, that Government's Exhibit 21 25 that we just looked at is 2 minutes and 38 seconds? The first one on And You wouldn't dispute that you used your access code Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 302 of 311891 1 A No. 2 Q Not eight hours. 3 A Correct. 4 Q Actually let's just go ahead and stay with this. 5 already counted this I think with Mr. Eastepp. 6 through and count again if you want, but do you recall 7 testifying a moment ago when you counted with him that on 8 January 24, 2012, which starts where I'm going to go ahead and 9 draw right here with this arrow down to this arrow, that that You And we can go 10 was 12 times? Is that what you testified to? 11 A Yes. 12 Q And then, of course, starting here between 125, turning to 13 page 16, down to the end of the day, you testified that that was 14 20 times; is that right? 15 A Yes. 16 Q You wouldn't dispute that in the record? 17 A No. 18 Q And then on January 26, you testified on direct -- let's see 19 if I can get that right. 20 that right? 21 A Yes. 22 Q So a different number of times on all three of those days; 23 is that right? 24 A Yes. 25 Q Now, your testimony is that as you sit here today, you don't There we go. That it was 15 times; is Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 303 of 311892 1 recall or know what date that video depicts; is that right? 2 A Correct. 3 Q You can't say that it's January 24; is that right? 4 A I can't say that. 5 Q You can't say that it's January 25 as you sit here; is that 6 right? 7 A That's right. 8 Q You can't say that it's January 26; is that right? 9 A That's right. 10 Q But you don't dispute that it very well could be one of 11 those days; is that right? 12 A Could be. 13 Q And as you sit here right now, you don't dispute that it 14 could be any day; is that right? 15 A Correct. 16 Q So it could be January 24; is that right? 17 A Yes. 18 Q It could be January 25? 19 A Yes. 20 Q And it could be January 26? 21 A Yes. 22 Q Now, if I told you that the entire video, Government's 23 Exhibit 21, that it depicted you going into the case file room 24 20 times, you wouldn't -- 25 I don't know. MR. EASTEPP: Judge, I object to this, him testifying Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 304 of 311893 1 what's in a piece on a videotape that's not evidence. MR. COONEY: 2 3 I'm not testifying. I'm posing a question about it. 4 THE COURT: I thought the videotape was in evidence. 5 MR. EASTEPP: It is. He's giving her additional details 6 about a piece of the tape that's not in evidence. 7 facts out of his own mind. 8 THE COURT: 9 He's adding Why don't you rephrase it. BY MR. COONEY 10 Q If I told you that for every time there's an access on this 11 record, Government's Exhibit No. 9, there is a corresponding 12 entry into the case file room, would you dispute that that 13 depicts that that potentially -- that Government's Exhibit 21, 14 that's pretty good evidence that it depicts January 25, 2012? MR. EASTEPP: 15 Judge, I object to leading, for one, and 16 him testifying to -- or putting facts into the record that 17 aren't in evidence. THE COURT: 18 19 All right. I'm overruling it. You can answer it. THE WITNESS: 20 I do not understand your question. 21 BY MR. COONEY 22 Q 23 Ms. Hinojosa, that for every time there's a record on Defense 24 Exhibit No. 9 that you entered the case file room there's a 25 corresponding depiction of you entering into the case file room, Sure. Let me back up. Let me back up. If I told you, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 305 of 311894 1 you would agree with me that that's -- that's pretty hard to 2 dispute that that's January 25th, 2012? 3 A Correct. 4 Q And the reason is because you don't enter the case file room 5 the same number of times every day; is that right? 6 A Correct. 7 Q Now, with that, I'm going to show you again -- if I may 8 approach the witness -- Government's Exhibits 20A and 20B. MR. COONEY: 9 THE COURT: 10 May I approach? Yes. 11 BY MR. COONEY 12 Q 13 that right? 14 A Yes. 15 Q Seeing those emails, seeing Defense Exhibit No. 9 and 16 looking at Government's Exhibit 21, is it still your testimony 17 that you don't remember whether you were assigned any tasks with 18 respect to case files after getting those emails in Government's 19 Exhibit 20A and 20B? 20 A I don't remember. 21 Q Now, you were asked a lot of questions by Mr. Eastepp about 22 the integrity of file keeping; is that right? 23 A Yes. 24 Q You have a lot of experience with that, don't you? 25 A Yes. You see those emails on January 24 and January 25, 2012; is Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 306 of 311895 1 Q Would you agree with me that to maintain the integrity of 2 files, their contents cannot be destroyed? 3 A Yes. 4 Q Would you agree with me that it would be a crime to take 5 material out of an official case file? 6 MR. EASTEPP: 7 THE COURT: 8 BY MR. COONEY 9 Q Judge, I'm going to object. Sustained. Ms. Hinojosa, you were asked some questions on 10 cross-examination about the dating of MOAs. Were you ever 11 involved in instructing special agents as to what date they 12 should put on an MOA when they signed it? 13 A Yes. 14 Q What date did you instruct them to put on an MOA? 15 A Gene would tell me to have them sign it in and around the 16 date of the action. 17 Q 18 took place? 19 to sign for the date of the activity as opposed to the date they 20 were signing it? 21 A Yes. 22 Q Why would you do that? 23 A Because Gene told me to. What if you received an MOA several months after an activity Would you still instruct special agents to put -- 24 MR. COONEY: 25 MR. EASTEPP: No further questions. Very, very briefly, and then I'll be done, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 307 of 311896 1 Judge. RECROSS-EXAMINATION 2 3 BY MR. EASTEPP 4 Q 5 jury appearance coming through? 6 A The travel order for the agents? 7 Q Right. 8 A I have no idea what date they went. 9 Q No, not where they were going. What's the day you recall the travel orders about a grand The day you recall that -- 10 on your original direct examination, Mr. Cooney asked you about 11 you going in to Mr. Pedraza and saying here are these travel 12 orders. 13 A The day, no. 14 Q So you don't know if that was January 25th or not? 15 A No, I don't. 16 Q And these cameras, the issue, was that some secret that 17 these cameras were in the file room and the hallway and all over 18 that office? 19 A No. 20 Q Did you know that? 21 A Yes. 22 Q Did Gene Pedraza know that? 23 A Yes. 24 Q And were those cameras motion activated? 25 A I believe so. Do you remember that date? Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 308 of 311897 1 Q And were there 24/7? 2 A Correct. 3 MR. EASTEPP: 4 MR. COONEY: 5 THE COURT: 6 All right. That's all I have, Judge. Nothing further. Ms. Hinojosa, you may step down. Ladies and gentlemen, we're going to call it a 7 day. 8 construction on our roof. 9 while we're here in trial. 10 I apologize once again for the fact that they're doing Remember my instructions. 11 the morning. 12 at 8:30. 13 14 15 They picked a great week to do it, We'll see you bright and early in Let's try to be here by 8:15, 8:20 so we can start Thank y'all. (Jury leaves courtroom) THE COURT: Be seated just for a minute. Counsel, tomorrow I may have it by noon, but more -- it's 16 doubtful that I will, but probably this time tomorrow I'm going 17 to send y'all home with a charge. 18 practice is to let y'all mull over the charge. 19 usually better. 20 attorney, as opposed to, you know, giving it to you during the 21 break and saying after break, we're going to do objections, and 22 to have a time where we actually talk about the charge. 23 not necessarily object to it, but get it right. 24 input from both sides on that obviously. 25 give you a time to object to it. My normal -- my normal Overnight is It was always better for me when I was an I mean, And I want And then after that, Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 309 of 311898 1 So no homework tonight, at least from me. But from tomorrow 2 night, you can plan on having a copy of a charge to go home and 3 dissect and be ready to talk sometime Friday about it. 4 Okay. MR. KIDD: 5 6 Thank y'all. Your Honor, if we may, can we raise one more issue? 7 THE COURT: 8 MR. KIDD: 9 See you in the morning. No. Only if it's an easy one. This one should be a softball, Your Honor. The government anticipates the possibility that we'll be done 10 with its case in chief by lunchtime tomorrow. 11 could kick a little bit longer, but it doesn't anticipate having 12 too many more witnesses. 13 THE COURT: It's possible it Well, that means you'll be up, Mr. Eastepp. 14 So not only do they have to tell you your witnesses for 15 tomorrow, you need to tell them yours. 16 17 Obviously if there's -- well, we'll just play it by ear. We'll see when we get done. 18 There are -- I'm telling you right now, there's no chance 19 we'll argue tomorrow because I'm not going to do that to you. 20 I'm not going to at 4:30 hand you a charge and then say, okay, 21 now object. 22 on what the defense does, there may be a chance we'll argue on 23 Friday, so all the more important that you look at the charge. 24 Be ready for that tomorrow night. 25 Now we're going to argue. MR. EASTEPP: But clearly, depending I don't think I'll be lengthy. Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 310 of 311899 1 THE COURT: All right. 2 MR. EASTEPP: 3 THE COURT: Are you a charge first and then we argue? Yes, I'm a -- let me tell you, I will read 4 the charge. My own personal opinion is that's an antiquated 5 thing to do, but I do it anyway. 6 argue, then I send the charge back with them so they have a 7 written charge when they go back. 8 they won't have it while you're arguing. 9 that is because if I give it to them when they're -- the whole I read the charge, I let you I do not give it to them -And the reason I do 10 time you're arguing, they're going to be doing this. 11 going to be thumbing through it. 12 listening, and so I don't give them the charge. 13 with the exhibits. 14 They're They're not going to be It goes back But, yes, I charge -- I'm a charge first, because I always 15 hated it when I argued -- had to argue before the judge charged 16 the jury because the charge never came out like I thought it was 17 going to. 18 MR. EASTEPP: 19 THE COURT: 20 MR. KIDD: 21 22 23 24 25 Thank you. Cristi, can you hand that back to Mr. Kidd? Thank you, Your Honor. (Court adjourned at 6:11.) * * * (End of requested transcript) -oOoI certify that the foregoing is a correct transcript from Case 1:13-cr-00305 Document 149 Filed in TXSD on 05/23/14 Page 311 of 311900 1 the record of proceedings in the above matter. 2 3 Date: May 22, 2014 4 5 /s/________________________ Signature of Court Reporter Barbara Barnard 6 7 CHRONOLOGICAL INDEX 8 9 GOVERNMENT'S WITNESSES: 10 11 12 13 ROBERT VARGAS ROLANDO GOMEZ EDWIN CASTILLO RICHARD VILLARREAL CYNTHIA HINOJOSA 15 Name 16 CASTILLO, EDWIN GOMEZ, ROLANDO HINOJOSA, CYNTHIA VILLARREAL, RICHARD RDIR RCRS 601 684 786 818 857 656 760 800 820 888 659 660 761 803 822 V/DIRE 801 896 Page 761 660 822 803 GOVERNMENT'S EXHIBITS 18 19 NO. 20 20A 20B 21 21 CROSS ALPHABETICAL INDEX 14 17 DIR DESCRIPTION OFFRD ADMTD 836 837 843 837 837 843 OFFRD ADMTD 591 593 Email Email Partial videotape W/DRAW 22 DEFENDANT'S EXHIBITS 23 24 NO. 25 7 DESCRIPTION Robert Vargas emails W/DRAW Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 1 of 214 901 IN THE UNITED STATES DISTRICT COURT 1 2 3 4 5 6 SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-13-305 ) EUGENIO PEDRAZA ) __________________________________) 7 8 JURY TRIAL, DAY 4 BEFORE THE HONORABLE ANDREW S. HANEN MARCH 13, 2014 VOLUME 4 9 10 11 12 13 APPEARANCES: 14 For the Government: 15 16 MR. J. P. COONEY MR. BRIAN K. KIDD USDOJ, Criminal Division 1400 New York Ave., N.W., Suite 12100 Washington, D.C. 20005 17 For Deft. Pedraza: MR. LARRY EASTEPP Larry D. Eastepp P.C. 5300 Memorial, Suite 1000 Houston, Texas 77007 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)982-9668 18 19 20 21 22 23 24 25 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 2 of 214 902 THE COURT: 1 2 3 Be seated. Mr. Cooney, Mr. Eastepp, anything we need to cover before we bring the jury in? Because they're here. MR. COONEY: 4 5 All right. Want to do the exhibit thing now, or should we wait until -MR. EASTEPP: 6 We've discussed the evaluations again; and 7 by agreement, the government will not object to the admission 8 of -- 9 THE COURT: Okay. 10 MR. EASTEPP: 11 THE COURT: 12 13 14 15 -- Pedraza No. 10. And Pedraza -- Defendant's No. 10 is admitted. MR. COONEY: Does No. 10 include just Mr. Pedraza's, or is that -MR. EASTEPP: 10 is just Pedraza's. I'm also wanting to 16 offer Marco Rodriguez's, which are marked as 10A. 17 government does object to those. 18 the evaluations show the day-to-day oversight of supervisors, 19 that they followed the rules. 20 THE COURT: 21 MR. EASTEPP: I think the My theory is the same, that What's the relevance of 10A? Just Marco Rodriguez is still a 22 co-conspirator, and I think this morning they're going to get 23 into some of the proof on the two counts in the indictment 24 regarding him, that he falsified records. 25 THE COURT: Is he testifying? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 3 of 214 903 1 MR. COONEY: 2 THE COURT: 3 No. Give me a copy while I listen to whomever. Do you have a copy? 4 COURT CLERK: (Mumbling.) 5 THE COURT: 6 COURT CLERK: (Mumbling.) 7 MR. EASTEPP: Is it not on the list then? 8 THE COURT: 9 MR. EASTEPP: 10 is the evaluations? Well, you have something different. Oh, I did. I substituted out, and I'll 10 print that page. 11 original one I had marked as 10 and just -- 12 13 I have a printer in there. THE COURT: Okay. All right. I withdrew the I'll look at these. I had already looked at the other ones. 14 MR. COONEY: I understand. 15 THE COURT: 16 MR. EASTEPP: 17 THE COURT: 18 MR. COONEY: While we're doing testimony. That's fine. All right. Thank you, Judge. Anything else we need to do? Just one other exhibit issue. We do intend 19 to offer with Agent Sirles Government's Exhibit 11, which is a 20 chart we provided this morning which records -- she will 21 essentially testify that she watched the video, and she -- every 22 time she saw Ms. Hinojosa go into the file access room, she 23 clicked stop, and then she measured the amount of time between 24 each time Ms. Hinojosa went into the access room or the file 25 room on the tape and then compared it to the objective records Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 4 of 214 904 1 in Defense 9. And so they just record her measurements of the 2 time about which she'll be testifying how she prepared it. 3 THE COURT: Any objection? 4 MR. EASTEPP: They showed it to me this morning, Judge. 5 It just seems to be just those 20 entries on that date. 6 prove that up, I'm not going to object to that. THE COURT: 7 8 Then 22 -- Government's 22 is admitted. MR. COONEY: 9 10 All right. If they Thank you. And then one last numbering convention issue. It occurred 11 to me last evening as we were just prepping up for today that 12 what we referred to up on the screen is Government's Exhibit 21, 13 which is the video. 14 clip. 15 and call that 21A, because we're also, as part of Agent Sirles' 16 testimony, going to show another clip from the same video, 21B. 17 So I think we've been referring to 21 as the entire video, and I 18 realized we've got these kind of clips. 19 Of course, that's the two-and-a-half minute I think we should -- what I would like to do is go back And so what I propose to do is if we could just call what we 20 put up yesterday as 21A, the next clip we show will be 21B. 21 And, of course, the entire video is 21. 22 Mr. Eastepp as to whether -- if you want us to put in the entire 23 eight hours as 21, we're happy to send that back to the jury 24 too. 25 show in court. And I defer to Or we'll just send back 21A and 21B, the clips that we And we can work that out later, but just I think Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 5 of 214 905 1 2 a numbering convention. MR. EASTEPP: I think for purposes of the record more 3 than necessarily sending it -- or the jury being bothered 4 watching eight hours, but that it be in the record so if they 5 wanted to bother looking at it, they could. 6 7 8 9 10 THE COURT: All right. So we're going to admit the entire video as 21 -(Discussion off the record.) THE COURT: Why don't we make clip 1 21; clip 2, 23, I guess, and the entire video 24. 11 MR. EASTEPP: 12 MR. COONEY: 13 MR. EASTEPP: 14 MR. COONEY: 15 THE COURT: Fine with me too. Great. Thank you. Thank you for the ruling. That makes perfect sense. You know, we may know the law or think we 16 know the law, but she knows how it works. 17 application that -- 18 19 They won't, but -- All right. It's the practical Ready for the jury? MR. COONEY: We are ready. Actually, Your Honor, can I 20 raise one other? 21 how long it's going to go, but we would then take the morning 22 break simply so we can get the AV and everything set up. 23 24 25 After Agent's Flores' testimony, I don't know (Jury enters courtroom) THE COURT: Good morning. All right. Ladies and gentlemen, be seated. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 6 of 214 906 1 THE JURY: 2 THE COURT: Thank you for being here on time. Mr. Kidd, who would be next? 3 MR. KIDD: 4 5 Good morning. Your Honor, the government will be calling Special Agent Flores at this time. THE COURT: 6 Would Agent Flores join us? Come right up here, sir. 7 8 THE WITNESS: 9 (Witness sworn.) 10 THE COURT: 11 THE WITNESS: Yes, sir. All right. Be seated. Thank you, sir. ERASLIO FLORES, 12 13 the witness, having been first duly cautioned and sworn to tell 14 the truth, the whole truth and nothing but the truth, testified 15 as follows: DIRECT EXAMINATION 16 17 BY MR. KIDD 18 Q Good morning, Agent Flores. 19 A Good morning. 20 Q Can you please state your full name and spell it for the 21 record. 22 A Yes, sir. 23 Q Agent Flores, where are you currently employed? 24 A I'm currently employed as a special agent with the 25 Department of Homeland Security-Office of Inspector General. E-R-A-S-L-I-O, F-L-O-R-E-S. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 7 of 214 907 1 Q How long have you been a special agent with DHS-OIG? 2 A This August will be ten years. 3 Q And what's your job title with DHS-OIG? 4 A Special agent. 5 Q And what are your job responsibilities? 6 A To investigate fraud, waste, abuse, mismanagement, 7 misconduct within the Department of Homeland Security and its 8 components. 9 Q And what office are you currently assigned to? 10 A McAllen, Texas. 11 Q Have you ever been assigned to a different office since you 12 started in 2004? 13 A No, sir. 14 Q Prior to -THE COURT: 15 16 further. Let me ask you a question before we go much If your first name is Eraslio -- 17 THE WITNESS: 18 THE COURT: 19 THE WITNESS: 20 THE COURT: 21 Yes, sir. Why are you called J.R.? Just a nickname, Your Honor. Okay. I kept trying to get J.R. out of your first name, and I never could manage to do it. All right. 22 23 BY MR. KIDD 24 Q 25 you employed? Go ahead, Mr. Kidd. Prior to becoming a special agent with DHS-OIG, where were Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 8 of 214 908 1 A Immediately prior, with the United States Customs Service or 2 what's now Immigration and Customs Enforcement. 3 Q And how long did you work for Customs Enforcement? 4 A Two years. 5 Q And prior to working for Customs Enforcement, where were you 6 employed? 7 A 8 approximately 11, 12 years in McAllen and Houston, Texas. 9 Q I was employed as a Deputy United States Marshal for And prior to joining the Marshal Service, where were you 10 employed? 11 A The McAllen Police Department from 1987 to 1991. 12 Q So you've had a fairly extensive law enforcement career. 13 A Yes, sir. 14 Q Congratulations. 15 A Thank you. 16 Q When you joined the Department of Homeland Security-Office 17 of Inspector General in 2004, where were you based out of? 18 A McAllen, Texas, sir. 19 Q Where was the -- your office? 20 A At the Bentsen Tower in McAllen on the 5th floor. 21 Q Where's your office now? 22 A It's in the same building, but it's on the second floor. 23 Q So you've been in the Bentsen building since 2004? 24 A With OIG, yes, sir. 25 Q With OIG. I believe Saturday will be my 27th anniversary. And when you started with DHS-OIG, who was in Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 9 of 214 909 1 charge of the office in McAllen, Texas? 2 A Eugenio Pedraza. 3 Q And what was his position when you started? 4 A Resident agent in charge. 5 Q What does that mean? 6 A He was the first line supervisor in charge of the McAllen 7 office. 8 Q What does that mean, to be a suboffice of Houston, Texas? 9 A The main office was in Houston, and there were several At the time we were a suboffice of Houston, Texas. 10 suboffices or satellite offices. There was one in -- the one in 11 McAllen, one in Laredo, one in Del Rio. 12 the -- one of the suboffices. 13 Q 14 but he had a supervisor above him? 15 A Yes, sir. 16 Q And was that -- that supervisor was based out of? 17 A Out of Houston, Texas. 18 Q And what was the name of that supervisor? 19 A The special agent in charge at the time was Dave Smith, 20 David Smith, and the assistant special agent in charge was Ron 21 Moore. 22 Q 23 charge? 24 A 25 agent in charge. We were just one of So was the defendant just in charge of the McAllen office At some point did Ron Moore become the special agent in Yes. After Mr. Smith retired, Mr. Moore became the special Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 10 of 214 910 1 Q Do you know when that was? 2 A I don't recall sir. 3 Q When you joined DHS-OIG office in McAllen in 2004, how was 4 the morale? 5 A 6 fourth agent. 7 and everything was good. 8 Q How was your relationship with Defendant? 9 A Good. 10 Q Would you consider yourselves friend -- were you friendly 11 with him? 12 A Yes. 13 Q Did you do things outside of the office? 14 A We had lunch quite a bit. 15 Q And you worked together extensively? 16 A Yes, sir. 17 Q At some point did the defendant switch over from being a RAC 18 to a SAC? 19 A Yes. 20 Q When did that take place? 21 A I believe it was right around 2009. 22 Q Do you know why that change was made? 23 A McAllen was redesignated from a RAC office to a special 24 agent in charge office or a field office, the same way Houston 25 was. It was good. It was a small office. It was -- it was good. I believe I was the It was a small office, There was a reorganization within the -- the agency. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 11 of 214 911 1 Several SAC offices were created. McAllen was one of them. At 2 that point, McAllen became a field office or a SAC office, and 3 Laredo became a suboffice of McAllen. 4 Q 5 expand its size and scope? 6 A Yes. 7 Q How many agents were in the office prior to the change from 8 a RAC office to a SAC office? 9 A When the McAllen office became a field office, did that When I started, there was four agents. There may have been 10 five at the time, but we were at a point where there was a lot 11 of agents getting hired, a lot of new agents. 12 there may have been seven agents, and we ended up with a total 13 of nine. 14 Q So it was growing in around the time that change was made? 15 A Yes, sir. 16 Q In addition to the five or so agents that were in the 17 office, the McAllen office around the change from the RAC to the 18 SAC office, were there any other employees in the McAllen field 19 office or the McAllen RAC office at that time? 20 A 21 there was approximately four agents, and we had an investigative 22 assistant, Cynthia Hinojosa. 23 Q 24 McAllen office? 25 A So at the time The RAC office -- it was -- Mr. Pedraza was the supervisor, When did Ms. -- when did Ms. Hinojosa start working in the I believe shortly after I did. I started working in August Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 12 of 214 912 1 of 2004. It was shortly thereafter that she came on board. 2 Q So she had been there since 2004? 3 A Roughly, yes, sir. 4 Q What was Ms. Hinojosa's relationship with the defendant? 5 A She was the administrative -- I guess it was administrative 6 aide. 7 administrative functions in the office. 8 Q Were Ms. Hinojosa and defendant close? 9 A I believe so. 10 Q Did they have a good working relationship? 11 A Yes, sir. 12 Q Who did Ms. Hinojosa report to? 13 A Mr. Pedraza. 14 Q Did she ever report to anybody else? 15 A I don't believe so. 16 Q Now -- and you just said -- you said a minute ago that 17 Ms. Hinojosa was -- and this is in the -- still during the RAC 18 office time period, what was her title? 19 A 20 investigative support specialist. 21 assistant, something like that. 22 Q At some point did her title change? 23 A Yes, sir. 24 Q When did that happen? 25 A When McAllen became a SAC office, there was a vacancy I wouldn't call her a secretary, but she handled all the It was investigative -- I can't remember. It's like It was investigative Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 13 of 214 913 1 announcement for an administrative officer. And she applied, 2 and she was selected for that positive. 3 Q 4 to an AO? 5 A Yes, sir. 6 Q Why so? 7 A Well, at that point she becomes responsible for the 8 administrative functions of the field office as well as, in this 9 case, Laredo, being a suboffice. Is that a significant change from an investigative assistant 10 Q Did -- did the defendant play a significant role in 11 Ms. Hinojosa's transition from an investigative officer, 12 investigative agent to -- or investigative specialist in the 13 office to an AO? MR. EASTEPP: 14 Judge, I'm going to object to whether he 15 knows anything about the personnel matters about people getting 16 promoted from his position, whether he's got this knowledge or 17 not. THE COURT: 18 I'm going to allow him to answer the 19 question, but if you know it. 20 you know from your own personal knowledge, you can answer the 21 question. THE WITNESS: 22 I don't want you to guess. Yes, Your Honor. I believe Mr. Pedraza was the selecting official. 23 24 BY MR. KIDD 25 Q Okay. And what does a selecting official mean? If Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 14 of 214 914 1 A The person that makes the decision as to who's going to get 2 the position. 3 Q 4 Ms. Hinojosa to become the AO in the office, was he assigning 5 her additional tasks and additional work? 6 A 7 computer query requests, request for driver's license, photos, 8 request for criminal history of, you know, individuals that we 9 were -- that we were investigating. And around this time period when the defendant selected At one point, yes, we were instructed to funnel all of our 10 Q Was that normal? 11 A Well, up to then, I mean, most of the agents would conduct 12 their own queries. 13 to direct all of the query requests to Ms. Hinojosa. 14 Q Do you know why that was done? 15 A I -- I don't know, sir. 16 Q Did -- and I know you said earlier that Ms. Hinojosa 17 reported to the defendant. 18 A Yes, sir. 19 Q Did they work closely on a day-to-day basis? 20 A Yes, sir. 21 Q Do you know what sort of things did Ms. Hinojosa do for 22 defendant? 23 A 24 correspondence, she would compile reports that needed to be -- 25 if a case was to be closed, she would compile all of the reports But at a certain point, we were instructed To my knowledge, I mean, she would prepare his Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 15 of 214 915 1 that were needed. She'd put a package together, present it to 2 Mr. Pedraza for his signature, answering the phone. 3 Q 4 better term, the defendant's right-hand man? 5 A Sure. 6 Q Why would that be so? 7 A Well, because he relied on her a lot for the majority of the 8 administrative functions in that office. 9 Q Would it be correct to term Ms. Hinojosa as, for lack of a Yes, sir. And was that consistent from the time she started in 2004 10 through 2011? 11 A Yes, sir. 12 Q Now, I'm going to step back to the reorganization that you 13 say took place in 2009, and that's the change from the RAC 14 office to the SAC office. 15 A Yes, sir. 16 Q When that -- and you were saying before that during the time 17 the office was a RAC office, you and Defendant had a close 18 relationship or a friendly relationship. 19 A Yes, sir. 20 Q And that the atmosphere was good in the office. 21 change in 2009 when the office converted from a RAC office to a 22 SAC office? 23 A 24 office. 25 started to change in the office. Did that I notice it did start to change, the atmosphere within the We were getting more agents, and the atmosphere just Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 16 of 214 916 1 Q How did it change? 2 A It just seemed a lot -- a lot of the agents were unhappy at 3 work, coming to work, the tasks they were being assigned. 4 we had had a large turnover in that office. 5 the time the office was opened when Department of Homeland 6 Security was created in 2003, I was not there at that time. 7 in approximately five years, we had five agents leave the 8 McAllen office or the McAllen field office area. 9 Q Do you know why that was? 10 A They were just -- they were unhappy in the office. 11 were unhappy with the work, and they were unhappy with the way 12 they were being treated. 13 Q And how were they being treated? 14 A They were -MR. EASTEPP: 15 I'm going to object. I want to say from But They He's giving a broad 16 answer that there were five people in and out. 17 time period. I don't know the He says they're disgruntled. THE COURT: 18 We -- Why don't you rephrase your question. 19 BY MR. KIDD 20 Q 21 office changed over to a SAC office, up through 2011, how did 22 the morale in the office change? 23 A I'm sorry? 24 Q Did the morale in the office change from pre-2009 when it 25 became a SAC office? Okay. Agent Flores, from the -- from 2009, the time the Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 17 of 214 917 1 A Yes, sir, it did. 2 Q Can you explain how it changed? 3 A Well, again, there was a lot of people that were leaving. 4 There was certain agents that were getting favored treatment. 5 There was a couple of agents that were -- that were hired. 6 one knew how or why. 7 agents were being treated in a different manner. 8 said, there was favoritism. 9 Q There's favoritism by who? 10 A By Mr. Pedraza. 11 agent in charge. 12 Q 13 agents? 14 A 16 There was different agents -- different And like I And at the time -- or the assistant special His name was William Warren. And do you know why they favored certain agents over other I don't know. I know that they had previous -- MR. EASTEPP: 15 No Judge, I object to any further answer after he said he doesn't know. THE COURT: 17 Sustained. 18 BY MR. KIDD 19 Q 20 office in 2009 through 2011, did your relationship with the 21 defendant change? 22 A Yes, sir. 23 Q How so? 24 A It just became very distant. 25 employer-employee relationship. During -- from the time the office changed over to a SAC It became strictly an I would report to the office Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 18 of 214 918 1 and I would do my job, but didn't have a lot of interaction with 2 him as I did at the beginning back in 2004, 2005. 3 Q Why was that? 4 A It just -- again, the atmosphere in the office. 5 it wasn't conducive to -- it wasn't a friendly atmosphere 6 anymore. 7 Q Did you and defendant no longer get along? 8 A Again, it's not that we didn't get along. 9 went from being a friendly relationship with daily It just -- It's just that it 10 conversations, going out to lunch periodically, to just strictly 11 an employer-employee relationship. 12 Q 13 a change in the relationship that the defendant instigated? 14 A It was a little of both. 15 Q Okay. 16 did that dynamic change? 17 A 18 constantly in his office. 19 coming around as much as he used to. 20 Q 21 was going to get an internal inspection from headquarters? 22 A Yes, sir. 23 Q How did you become aware of that inspection? 24 A I don't recall how we were told, but we were -- I can't 25 remember if it was an email or someone told us, but we were Was that a change in the relationship that you instigated or How did the defendant change the relationship? How Again, there was a couple of agents in the office that were You know, it's just -- he stopped That was it. Did you become aware in 2011 that the McAllen field office Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 19 of 214 919 1 supposed to have an inspection in the early part of 2011. 2 Q Did that inspection in the early part of 2011 occur? 3 A No, sir, it did not. 4 Q Do you know why it didn't? 5 A What we were told, it was budgetary constraints. 6 wasn't enough money, so they -- headquarters, "they" being 7 headquarters, postponed the inspection. 8 Q Was it eventually rescheduled? 9 A Yes, sir. 10 Q Do you know when it was rescheduled for? 11 A September of 2011. 12 Q And is that ultimately when the inspection took place? 13 A Yes, sir. 14 Q Prior to the inspection taking place in September 2011, did 15 you know what the inspection consisted of, what an internal 16 inspection consisted of? 17 A Yes, sir. 18 Q How were you aware of that process? 19 A There had been an inspection conducted in the McAllen office 20 when it was still a RAC office. 21 inspectors came down from headquarters. 22 files, our undercover funds, our confidential funds, informant 23 files just to make sure everything was in order. 24 Q 25 that 2005 inspection? There Yes, sir. I believe it was 2005. Some They reviewed our case Was Defendant the RAC of the McAllen office at the time of Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 20 of 214 920 1 A Yes, sir. 2 Q So is it accurate to say that yourself and the defendant 3 went through that 2005 inspection together? 4 A Yes, sir. 5 Q How did that inspection go? 6 A It went well. 7 for I believe two or three days reviewing our files. 8 wasn't with them all the time, but it went fine. 9 any negative feedback afterwards. Okay. I remember the inspectors, they were there And I I never heard 10 Q Now, leading up to the September 2011 inspection, 11 what was the morale in the office like? 12 A 13 morale in the office to start with. 14 inspection, it got -- the atmosphere was a little more frantic. 15 Mr. Pedraza was in and out of everyone's office discussing cases 16 with them. 17 Q 18 time in the few weeks leading up to the 2011 inspection? 19 A He appeared very stressed out. 20 Q Did you ever have a conversation with Mr. Pedraza to talk 21 with him about why he was stressed out about the upcoming 22 inspection? 23 A I had one conversation with him. 24 Q Why don't you tell us about that conversation. 25 A I walked into his office to drop something off, and I asked Well, again, it was -- the majority of the office had low As we got closer to the What was Mr. Pedraza's demeanor, comportment during that Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 21 of 214 921 1 him why he was so stressed out. I said -- you know, I said 2 "Gene," I said, "why are you so stressed out? 3 through this before." 4 Q And what was his response to that? 5 A His response was, "Yeah, yeah. 6 office, so if things were fucked up, I could blame Ron. 7 I'm the SAC, and I don't want anything to come back on me. 8 one thing." 9 Q We've been Back then we were a RAC But now Not So did you take that to mean the defendant was extremely 10 nervous about the upcoming inspection? 11 A Yes, sir. 12 Q And did that seem to be evidenced by his demeanor and 13 comportment during that time frame? 14 A Yes, sir. 15 Q Now, leading up to the inspection, did the defendant ever 16 approach you about one of your open cases? 17 A Yes, sir. 18 Q Do you recall which case he approached you about? 19 A It was -- the case was titled Jesus Salinas. 20 Q And what was the -- what was the -- what were the 21 allegations in this Salinas case? 22 A 23 Pharr, Texas. 24 The way the allegation came to our office, a recreational 25 vehicle was stopped at the -- I believe it was the Sarita Mr. Salinas was a Customs and Border Protection officer in The allegation was -- well, if I could explain. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 22 of 214 922 1 checkpoint. The vehicle was found to contain about 1700 pounds 2 of marihuana. 3 come through the Pharr, Texas, port of entry earlier that day 4 and that Mr. Salinas was the officer, the CBP officer that was 5 working at the primary inspection station at the time. 6 suspicion was that possibly Mr. Salinas had something to do with 7 allowing a marihuana laden vehicle into the United States. 8 Q Was it an open investigation? 9 A It was. 10 Q Do you know when it had first been opened? 11 A That case -- that allegation had been received and case had 12 been opened in our office or by our office in August of 2010. 13 Q And when had that case been assigned to you? 14 A I believe it was like July of 2011. 15 Q And how did that come about that this case was reassigned to 16 you? 17 A 18 Cases were redistributed based on geographic areas. 19 the McAllen agents lived out here in Cameron County, so they 20 were assigned Brownsville/Willacy County cases to include the 21 Sarita checkpoint. 22 were assigned the Progreso port of entry or Weslaco Border 23 Patrol. 24 lived, and others was just geographically they broke it down. 25 was assigned the cases having to do with the Pharr, Texas, port Records checks indicated that that vehicle had So the There was a shuffling of cases in our office at the time. Couple of Some agents lived in the mid Valley, so they Just based on -- some of it was based on where you I Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 23 of 214 923 1 of entry. 2 Q And this was one of those cases? 3 A Yes, sir. 4 Q Do you know who had the case prior to you? 5 A I do not. 6 Q When you received the case when it was reassigned to you in 7 about July of 2011, what work had been done in the matter? 8 A 9 computer query had been conducted in January, but prior -- that Nothing. There was one report, I believe, had been -- 10 was -- there was no work done on that case other than that 11 computer query. 12 Q 13 to you in July of 2011, there was -- there was no activity 14 documented in the -- in the case file other than this computer 15 query you're mentioning? 16 A That is correct, sir. 17 Q Now, you were telling us a moment ago that this was a case 18 that the defendant approached you about shortly before the 19 inspection; is that correct? 20 A Yes, sir. 21 Q Can you tell us what that conversation consisted of? 22 A Yes, sir. 23 "Hey, have you got that Jesus Salinas case?" 24 says, "There's nothing in it." 25 says, well -- he goes, "I can't show this to the inspectors. So from its opening in August of 2010 until its reassignment He came into my office, and he told me, he goes, I says yes. I said, "Yes, I know." He And he Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 24 of 214 924 1 You know, there's no work done on it." I said, "Well, I know." 2 I said -- 3 Q Let me stop you there. 4 A Well, because that's one of the things that the inspection 5 crew was going to look at was open -- open and closed cases and 6 to make sure that they were -- if they were closed, properly 7 filed; and if they were open, you know, what steps had been 8 taken. 9 Q Why would that be a problem? And would you take this to be one of those situations where 10 Defendant didn't want something to reflect badly back on him 11 during the inspection? 12 A Yes, sir. 13 Q This gap? 14 A Yes, sir. 15 Q Now, going back. 16 telling me about how the defendant was telling you that he could 17 not show this gap of inactivity to the inspectors. 18 A Yes, sir. 19 Q Can you go ahead and continue from there? 20 A Yes, sir. 21 said, "Well, I've done three reports since I've gotten the case 22 in the last couple, two, three, weeks." 23 opening report hadn't been done, so I did one of those. 24 some preliminary things. 25 background package, the work schedule for the day in question, I'm sorry I cut you off there. You were He said, "I can't show this to the inspectors." I There was a -- a case Just I requested the officer's personnel Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 25 of 214 925 1 when that vehicle had come through the port. 2 believe I requested some telephone tolls. I think -- I But he said, "Well, that's not enough because there's -- 3 4 nothing was done from the time the case was opened to the time 5 you got it." 6 there's just too much of a gap." 7 didn't know who Jesus Salinas was until three weeks ago so I 8 don't know. 9 this individual was. And he says, "We need to bridge the gap because And I said, "Well, you know, I I didn't know about this case. I didn't know who So I've done what I can do at this point." 10 And he says, "Well, you know," he says, "I'm sure there was some 11 surveillances that you could write up." 12 because I didn't do anything." And I said, "Well, no, I even suggested that he -- that he find out who had the 13 14 case before I did to see if maybe they had done something and 15 just failed to document it. 16 says, it just -- you know, "I'm sure there's something you can 17 write up." 18 Q What was the defendant's demeanor during this conversation? 19 A I -- he got upset, his face got flushed, and he walked out 20 of my office. 21 Q At what point did he get upset and his face get flushed? 22 A After I told him I wasn't -- there was nothing I could do. 23 That I wasn't going to write up a surveillance report that I 24 hadn't done. 25 Q But he says no, no. You know, he And I said no. And at the time you were discussing this case with Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 26 of 214 926 1 Defendant, did you have the working file? 2 A I did, sir. 3 Q And by the working file, I'm referring to your own personal 4 file. 5 A Yes, sir. 6 Q Did you have the blue file at that time? 7 A I did. 8 Q You had the case file, the blue jacket or the folder or the 9 file with the blue -- that's blue? 10 A Yes, sir. The working file, yes, sir, I did have that. 11 Yes, sir. 12 Q 13 office after he had asked you to bridge that gap of inactivity 14 in your case file? 15 A 16 are you -- you know, have you lost your mind asking me to do 17 something like that? 18 you know, I just thought it was a bit odd. 19 first reaction, have you lost your mind asking me to do this? 20 Q Were you angry? 21 A I was -- I was -- I was upset, but I -- you know, I guess at 22 some point I -- you know, to -- once you have -- I had a chance 23 to reflect, asking me to do something like that, I guess you 24 could say I got a bit angry, but -- 25 Q Agent Flores, how did you feel after Defendant left your Well, when he walked out, I mean, my reaction was, you know, I just -- that was about it. I just -- But that was my Why would you be angry by -- angry after being requested to Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 27 of 214 927 1 fill the gap of inactivity with work that you hadn't performed? 2 A 3 mind was that it was a criminal case. 4 of that case developing into something where Mr. Salinas was 5 going to end up getting arrested for something, you know, for 6 allowing the marihuana into the country. 7 time, but the first thing that popped into my mind was that I 8 would be sitting here on a witness stand under oath, and someone 9 was going to ask me if I had conducted surveillance at Jesus Well, I just -- it's -- the first thing that popped into my There was a possibility I didn't know at the 10 Salinas' house on a certain day, when, in fact, I hadn't. So 11 that -- that -- that was it. 12 Q Well, was it not appropriate because it was illegal? 13 A It was illegal. 14 popped into my mind, you know. 15 another -- another thing that popped into my mind. 16 Q 17 Office of Inspector General special agent would investigate? 18 A Yes, sir. 19 Q Why? 20 A I mean, it's a violation. 21 internal affairs component, so that would be something that we 22 would investigate. 23 Q 24 you investigating fraud, corruption, waste and abuse? 25 A It just -- it wasn't appropriate. Like I said, that -- you know, perjury A false report was, you know, Is this kind of conduct the sort of thing that you as a Yes. Why would you investigate this sort of conduct? It's illegal. It's -- we're an As internal affairs, as an internal affairs component, are Yes, sir. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 28 of 214 928 1 Q Would you consider this, the request to falsify a document 2 and the falsification of a document, fraud? 3 A Yes, sir. 4 Q Corruption? 5 A Yes, sir. 6 Q At some point did the -- in the weeks after you spoke with 7 Defendant and in the few weeks leading up to the inspection, did 8 the defendant ever address the office about what the inspection 9 was going to entail? 10 A Not to me. I don't recall anything specifically that we 11 were told they're going to look at this specifically or this 12 specifically. 13 believe it was a Friday before the inspection, we had defensive 14 tactics training, and he just made a comment that the inspectors 15 would be there on Monday. 16 the inspection on Tuesday; and that, you know, we could tell 17 them how great it was in McAllen. 18 Q 19 you could tell the inspectors how great it was in McAllen? 20 A 21 running smoothly in McAllen. 22 Q At that point did you think everything was okay in McAllen? 23 A No, sir. 24 Q At that point did you think everything was running smoothly 25 in McAllen? The only -- the only thing I can remember was I And I guess they were going to start What did you think Defendant was talking about when he said I guess that everything was okay and that everything was Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 29 of 214 929 1 A No, sir. 2 Q During the course of the inspection, did you have an 3 opportunity to meet with any of the inspectors? 4 A I met with James Izzard. 5 Q Why did you meet with Mr. Izzard? 6 A Mr. Izzard, to my understanding, was not part of the 7 inspection team. 8 of the Special Investigations, which is -- I guess would be our 9 internal affairs. 10 He was part of the -- was part of the Office When somebody from OIG does something wrong, they're the ones that would take a look at it. We were -- we were told that OSI would be coming down and 11 12 wanted to interview everybody, which was not something that had 13 occurred during the first inspection I had been part of in 2005. 14 Q 15 of the police of the police? 16 A Yes, sir. 17 Q Now, what was the -- what was the purpose of having that 18 conversation with Mr. Izzard? 19 A 20 the office, what our reputation was within the law enforcement 21 community, our relationships with other law enforcement 22 agencies, our relationships with other internal affairs 23 components, if there was any favoritism in the office, what kind 24 of management and supervision we had in the office. 25 Q Would it be fair to say that the OSI section is the police Well, Mr. Izzard wanted to know what the morale was like in And was this a one-on-one meeting? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 30 of 214 930 1 A Yes, sir. 2 Q Was it behind closed doors? 3 A Yes, sir. 4 Q Was it your understanding that what was -- what you told 5 Mr. Izzard would be walled off from Mr. Pedraza -- 6 A Yes, sir. 7 Q -- or the defendant? 8 A It was explained to me that -- by Mr. Izzard that he was 9 there to interview the agents of the office to see if there was 10 a problem. And he said that if there was a concurrence that 11 there was a problem, he would advise Mr. Pedraza that there was 12 a problem, but he wasn't going to get into specifics as to who 13 said what. 14 Q 15 discuss generally? 16 A 17 law enforcement agencies, other internal affairs components, 18 the -- again, morale in the office, the relationships between 19 the agents, the type of management and supervision in the 20 office. 21 Q What did you tell him about the morale in the office? 22 A I told him it was -- it was bad. 23 was agents trying to leave. 24 I told him that we had had a high turnover in the office. 25 was the average of about one agent a year leaving. Now, during that interview, what did you and Mr. Izzard Yes, sir. Again, the relationship of our office with other It was low morale. There They hadn't been there very long. It Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 31 of 214 931 1 Q What did you tell him about the management in the office? 2 A That it was very poorly run. 3 the office, never participated in any type of operations, would 4 take weeks, months to return reports. 5 Q How long did that interview last? 6 A I don't recall, sir. 7 Q During that interview at any time, did you inform Mr. Izzard 8 that the defendant had approached you and asked you to falsify 9 investigative reports and place them in a criminal investigative The supervisor was rarely in Maybe an hour. 10 case? 11 A No, sir. 12 Q Why not? 13 A Because I hadn't done it. 14 I didn't -- I didn't think to tell him. 15 Q 16 Mr. Izzard during the inspection, did you ever have -- ever have 17 an opportunity to speak with Mr. Izzard again about what 18 happened about the inspection? 19 A No, sir. 20 Q After that night, did there come a time the next day, so -- 21 did the inspection end on a Thursday; is that correct? 22 A Yes, sir. 23 Q The next day, Friday morning, did you have an opportunity to 24 see Mr. Izzard again? 25 A Because I hadn't done it, and so After the meeting -- that meeting -- after your meeting with I saw him briefly on Friday morning. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 32 of 214 932 1 Q Where did you see him? 2 A In the OIG office. 3 Q Do you know what he was doing there? 4 A I -- he -- I guess he was following up on something. 5 said he was following up. 6 but he had something to do, and that's why he was leaving on 7 Friday morning. 8 Q 9 point? He He was supposed to leave on Thursday, But you didn't have any conversations with him at that 10 A I talked to him briefly. I believe there was another 11 inspector there, Mr. Chang. 12 Q 13 morning? 14 A Yes, sir. 15 Q Did you have any conversations with Mr. -- with the 16 defendant after Mr. Izzard left? 17 A Yes, sir. 18 Q What were those conversations? 19 A He called me into his office. 20 meet with Special Agent Robert Vargas and pick up his cases, his 21 case files. 22 coordinate with him and pick up his case files and bring them 23 back to me. 24 Q How did he call you into the office? 25 A He called me on the intercom. At some point did Mr. Izzard leave the office that Friday He told me that I needed to And Mr. Vargas was in Brownsville, so he told me I was down the hall in my Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 33 of 214 933 1 office, and I walked over to his office. 2 Q And what was his demeanor during that conversation? 3 A He looked a bit -- again, he looked a bit stressed. 4 he spoke to Mr. Izzard before Mr. Izzard left, and he looked a 5 bit stressed. 6 Q 7 get another agent's case files? 8 A He had never done that before. 9 Q Had you ever heard of him asking anybody else to go do that? 10 A No, sir. 11 Q How far away is McAllen from -- or Brownsville from McAllen? 12 A Approximately 60, 65 miles. 13 Q And what time of day did this occur, this conversation? 14 A Late morning, sir. 15 Q How was the morale in the office around that time? 16 A At that time there was no one in the office except 17 Mr. Pedraza and myself. 18 and about. 19 right after the inspection. 20 Q 21 case files? 22 A No, sir. 23 Q Did you ask? 24 A No, sir. 25 Q Did you go get the case files? I know Was it a normal request for the defendant to ask you to go Maybe 10:00 maybe. I think Ms. Hinojosa. It was very quiet. Agents were out Very somber mood in the office Did the defendant tell you why he wanted you to go get those Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 34 of 214 934 1 A I did, sir. 2 Q And where did you go? 3 A I called Mr. Vargas. 4 your cases." 5 And so we agreed to meet halfway at the outlet mall in Mercedes. 6 It's about halfway, so I told him, "I'll meet you in the parking 7 lot." 8 Q Did you end up meeting Agent Vargas in the parking lot? 9 A Yes, sir. 10 Q And were you able to retrieve the files? 11 A Yes, sir. 12 Q Did you and Vargas have a discussion at that time about why 13 the files were being picked up? 14 A Yes, sir. 15 Q What -- why -- did you ask Mr. Vargas why he was turning 16 over his files? 17 A 18 pleasantries, and he said, "Well, you know, here's my cases." 19 He gave me the box, and then he was -- he was upset. 20 he told me was that he had been asked to -- I said, "Hey, I'm supposed to pick up And he said, "Yeah." He goes, "Gene called me." And -- He just started talking. 21 MR. EASTEPP: 22 THE COURT: 23 MR. KIDD: We met up, you know, exchanged And what Judge, I object to the hearsay. Sustained. Your Honor, these are prior consistent 24 statements of Agent Vargas. I believe defense counsel brought 25 up the non-prosecution agreement. And once he did that, he Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 35 of 214 935 1 called -- he basically said that his testimony was based on the 2 non-prosecution agreement. 3 THE COURT: 4 (At the bench) 5 THE COURT: 6 MR. KIDD: Y'all come up. What's he going to answer? He's going to say that Agent Vargas told him 7 that he had -- he's going to say that Agent Vargas is going to 8 say that he was -- he told Inspector Izzard about being asked to 9 falsify documents, and he was doing a write up for Mr. Izzard 10 and that Gene, the defendant, had called him, asked him to bring 11 his case files. A little more detail, but that's what he's 12 going to cover. It's a very -- it's a brief conversation. 13 14 THE COURT: the impeachment? 15 MR. KIDD: 16 THE COURT: 17 18 19 20 And so -- and you're introducing it to rebut Yeah. So you're not introducing it for the truth of the matter asserted? MR. KIDD: No, these come in as statements, as prior consistent statements of a witness. MR. COONEY: The motive to fabricate occurred in July of 21 2012 according to the cross-examination of Vargas. 22 statements predate the motive to fabricate; therefore, come in 23 as prior consistent statements to rebut -- 24 25 THE COURT: These A prior consistent statement, doesn't it come in for the same thing as a prior inconsistent statement? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 36 of 214 936 1 Only comes in for a specific purpose? MR. COONEY: 2 3 in for the truth. 4 MR. KIDD: 5 MR. EASTEPP: No. These prior consistent statements come They come in substantively for the truth. I guess I missed the July reference 6 because we're talking about something that occurred during the 7 inspection in September. MR. KIDD: 8 9 10 record was the July 2012 conversation where Agent Vargas was given a non-prosecution agreement. MR. EASTEPP: 11 12 The motive to fabricate that you put on the sorry. I missed that. MR. KIDD: 13 Oh, I thought you meant July 2011. I'm First, Judge, it's -- We don't mind if you want to give a limiting 14 instruction. 15 fabricate his story, if you want to give that instruction. 16 you want to give that, that's fine, and then we can keep it out 17 for -- 18 We're just using it to rebut the motive to MR. EASTEPP: It's usually an improper bolstering. If I 19 don't see how it fits this theory that it's rebutting some -- 20 they're just exchanging files. 21 MR. KIDD: Agent Vargas is making a statement consistent 22 with what he told Agent Izzard, what he has told the government, 23 and what you impugned by saying that he's making it up because 24 of the non-prosecution agreement. 25 MR. EASTEPP: Well, I think he's making that up. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 37 of 214 937 1 MR. KIDD: 2 THE COURT: 3 I think you made that clear. I'm going to allow it as a prior consistent statement. 4 (Open court) 5 BY MR. KIDD 6 Q 7 discuss a conversation you had with Agent Vargas regarding a 8 conversation he had had with Agent Izzard; is that correct? 9 A Yes, sir. 10 Q Can you -- can you continue where you left off? 11 A Yes, sir. 12 because he had been asked by Mr. Pedraza to falsify a report, a 13 memorandum of activity on an investigation, and that he had 14 reported that to Mr. Izzard and that he had had to prepare a 15 memorandum for Mr. Izzard, and also that he had told Mr. Pedraza 16 what he had done. 17 Q 18 himself? 19 A I don't know, sir. 20 Q Once you received the case files, what did you do with them? 21 A I drove back to McAllen. 22 office. 23 there. 24 there." 25 Q Agent Flores, when we left off, you were about ready to Mr. Vargas said the reason he was upset was Do you know why Agent Vargas didn't deliver the files I took the box into Mr. Pedraza's I placed them on a table in his office. I said, "Here's the box." He was in He said, "Just put them And I went back to my office. Did you have any further discussions with the defendant Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 38 of 214 938 1 about those case files? 2 A No, sir. 3 Q Did you have any further discussions with Agent Vargas about 4 those case files? 5 A No, sir. 6 Q I'm going to jump back in time here just a little bit to on 7 or about April 2011. Was there a time when you were asked to assist with the 8 9 I know I'm shifting gears on you. deactivation and movement of a confidential source? 10 A Yes, sir. 11 Q How were you involved with that process? 12 A Special Agent Roland Gomez had an informant that was 13 illegally in the country, but we had obtained a parole for her 14 to assist us in an investigation. 15 Dallas area. 16 to cooperate anymore. She was living up in the She apparently at some point had become unwilling She was going to be deactivated. I was I believe -- I believe it was Mr. Gomez that told me 17 18 that she was going to be called into the office, her parole 19 permit was going to be pulled or taken away, and that she was 20 going to be transported down to the port of entry and allowed to 21 return to Mexico. 22 Q 23 where he informed you of that, did this meeting, in fact, occur? 24 A Yes, sir. 25 Q What happened during this meeting? After you -- that conversation you had with Agent Gomez Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 39 of 214 939 1 A She was -- she was called into the office. 2 Q Let me just stop. 3 the confidential source? 4 A 5 office. I'm sorry. When you say "she," are you referring to The confidential informant was called into the She arrived. MR. EASTEPP: 6 She was -- She was placed -Judge, I'm going to object. I don't know 7 his basis of knowledge about this based on all the other 8 testimony; that it was a whole other group of agents involved in 9 this situation. I just don't know how he knows this. THE COURT: 10 Mr. Kidd, why don't you lay a little more 11 foundation. 12 BY MR. KIDD 13 Q 14 Agent Gomez brought in his confidential source? 15 A Yes, sir. 16 Q Were you present in the office during a time when Agent 17 Gomez and other agents in your office had a meeting with the 18 confidential source? 19 A Yes. 20 Q Where were you during that meeting? 21 A I was in my office, which is right across the hall from the 22 interview room where the other agents were meeting with the 23 confidential informant. 24 Q 25 meeting room, were you able to observe what was going on during Agent Flores, were you present in the office on the day From your office, which was right across the hall from the Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 40 of 214 940 1 this meeting between Agent Gomez, the confidential source and 2 other agents in your office? 3 A 4 could not see -- if I was seated at my desk in my office, I 5 could not see into the interview room. 6 and I had occasion to walk down the hall a couple of times, and 7 I saw them in there talking to the confidential informant. 8 Q Did you know what they were talking about? 9 A The fact that they were going to deactivate her. 10 Q Did they, in fact, deactivate her? 11 A Yes, sir. 12 Q How do you know that? 13 A Because at a certain point, the meeting broke up. 14 the other agents, Special Agent Marco Rodriguez, Mr. Rodriguez 15 came by my office and said, "We're ready to take her to the 16 port." When I walked by, when I walked down the hall, yes, sir. I But the door was open, One of 17 So what I had done, again, being told earlier that day that 18 that was what was going to happen, I had made arrangements with 19 the United States Marshal Service to be able to walk the 20 confidential informant out the back door of the building as 21 opposed to the front door. At that point when I was told that they were ready to 22 23 transport her back to the port of entry, I called the marshals 24 downstairs and asked if they could meet us by the back door. 25 Q And when you say "us," who are you referring to? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 41 of 214 941 1 A At that time it was myself, Special Agent Marco Rodriguez, 2 and Special Agent Della Saenz as well as the confidential 3 informant. 4 Q Did you, in fact, take them down the back stairwell? 5 A We walked down the staircase, and then we met the marshals 6 at the back door. 7 remember if one of our vehicles was already parked on the back 8 curb or if one of the agents went to get a vehicle. 9 the OIG vehicles was there. They let us out. At this point I don't But one of The informant was placed in the 10 vehicle, and Mr. Rodriguez and Ms. Saenz departed for the port 11 of entry. 12 Q At that point did you go back up into the office? 13 A Yes, sir. 14 Q Was this a fairly big deal in the office that a source was 15 being deactivated? 16 out? 17 A Yes, sir. 18 Q Was Defendant present in the office during this time period? 19 A Yes, sir. 20 Q Once this source was taken away -- taken out of the office 21 by Special Agent Marco Rodriguez and Special Agent Della Saenz, 22 did Agent Rodriguez stay in the office? 23 A No, sir. 24 Q I apologize. 25 She was brought in, confronted and taken I am confusing names here. When you returned to the office after dropping off Marco Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 42 of 214 942 1 Rodriguez and Della Saenz and the confidential source out behind 2 the building, was Agent Gomez still in the office? 3 A Yes, sir. 4 Q Did he stay in the office with you during that time? 5 A Yes, sir. 6 Q Was agent -- was the defendant still in the office at that 7 time? 8 A Yes, sir. 9 Q I'm going to shift gears on you one more time here. I'm 10 going to refer -- I'm going to go to something called a case 11 review. 12 A Yes, sir. 13 Q What is a case review? 14 A Quarterly you meet with your supervisor to discuss the 15 progress of your case to get some input. 16 close it if the case has been run into the ground, so to speak. 17 There's nothing else to do. 18 cases fresh, move them along. 19 Q 20 agency, did you have these quarterly case reviews? 21 A 22 had a formal case review in that office. 23 Q 24 review? 25 A Do you know what a case review is? How to proceed or to It's just a method to keep the Since Defendant became the SAC in 2009 until he left the From 2009 to -- up to the time of the inspection, we hadn't Did there come a time when you did have a formal case Yes, sir. Approximately October, November of 2011 after the Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 43 of 214 943 1 inspection. 2 Q And who was that with? 3 A David Green. 4 Q And how did that case review go? 5 A We -- we -- he had a stack of my cases, of the cases that 6 were assigned to me. 7 time. 8 in the file room, as opposed to the work file that the agents 9 have, and there was a case review worksheet on there. I believe I had about 20, 25 cases that He opened up the original case file, which we just kept And he 10 says well -- he goes, "Case review on this case was done on July 11 of 2011." 12 there." 13 since 2009." 14 Q And what was Agent Green's response to that? 15 A Well, he just wondered why it was written down that there 16 had been a case review done. 17 been any case reviews done since that time, since approximately 18 2009. 19 Q 20 formal case review you had had since before 2009? 21 A And I said no. I said, "Sure, but we haven't had a case review here But I -- I told him there hadn't So that late 2011 case review -- case review was the first Yes, sir. 22 MR. KIDD: 23 THE COURT: 24 MR. KIDD: 25 And he said, "Well, it says right Honor. Judge, may I have just one moment? You may. No further questions at this time, Your Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 44 of 214 944 THE COURT: 1 Mr. Eastepp? CROSS-EXAMINATION 2 3 BY MR. EASTEPP 4 Q Good morning, Special Agent Flores. 5 A Good morning, Mr. Eastepp. 6 Q We've known each other for -- probably since '04 since you 7 probably went to work at the OIG? 8 A Yes, sir. 9 Q One of the things as I recall about your career early on in 10 the mid 2000s, you were assigned by your agency to an FBI public 11 corruption task force, were you not? 12 A Yes, sir. 13 Q And you actually in that time period officed pretty much 14 day-to-day or at least went day-to-day to the FBI building in 15 McAllen, correct? 16 A Yes, sir. 17 Q They have their own separate building a couple of miles from 18 the courthouse, correct? 19 A Yes, sir. 20 Q So you've known specifically up to this incident in the 21 hallway about the Salinas case, you knew lots of public 22 corruption agents at the FBI you could have picked up the phone 23 and called up at that moment, correct? 24 A Yes, sir. 25 Q Including supervisors and ASACs at the FBI level, those Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 45 of 214 945 1 sorts of individuals, correct? 2 A Yes, sir. 3 Q And that was kind of, I would assume, a compliment to you 4 that your agency picked you to be the one to go work on a public 5 corruption task force with the FBI, correct? 6 A Yes, sir. 7 Q Was Mr. Pedraza involved in that decision? 8 A Mr. Pedraza is the one that selected me and sent me over to 9 the FBI. 10 Q Which meant he had some confidence in your abilities. 11 you think that's what that means? 12 A Yes, sir. 13 Q I mean, no doubt you were one of the veterans of the office. 14 A Yes, sir. 15 Q Even as far back as the early 2000s, you were already, 16 quote, a veteran. 17 A 18 approximately 14 years of federal service and four years prior 19 with the McAllen Police Department. 20 Q 21 probably lots of reasons that people didn't stick around beyond 22 morale alone, right? 23 A 24 that left told me that the reason they left was because of the 25 morale. Yes, sir. Don't At the time I came to the OIG, I had This in and out of people working at the agency, there's Well, based on what they told me, sir? What those people They didn't like the way they were being treated. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 46 of 214 946 1 Q And the morale was pretty bad leading up to the inspection, 2 was it not? 3 A Yes, sir. 4 Q Now, let me stop right there and go back over, ask you some 5 questions about the procedures in the office. 6 saw that office grow kind of dramatically in this time period 7 from '04 until 2012, did you not? 8 A Yes, sir. 9 Q How many people were there in '04 literally working for And first, you 10 DHS-OIG; total number of employees assigned in McAllen in '04 11 when you came? 12 A Six. 13 Q And who -- who were the six at that moment in time? 14 A Mr. Pedraza was the supervisor, Ms. Hinojosa was the 15 investigative assistant, myself and three other agents. 16 Q Okay. 17 A Yes, sir. 18 Villarreal. 19 Q 20 with the federal -- 21 A 22 Investigations in Houston. 23 Customs and Border Protection internal affairs in McAllen. 24 Q Okay. 25 A Yes, sir. Jody Warren being one of those? Jody Warren, Yvonne Townsend, and Hector Yvonne and Hector both I guess are in the Houston area now No, sir. Hector or Mr. Villarreal is with Homeland Security Ms. Townsend is a supervisor with And Yvonne, most people call her Bonnie. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 47 of 214 947 1 Q Right? And after that, the office continued to grow. 2 A Yes, sir. 3 Q And were you aware there were times that headquarters would 4 put an announcement out to hire an agent, and there actually was 5 a pretty short period of time to get somebody hired? 6 A Yes, sir. 7 Q And you have to -- I would assume you have to admit that by 8 the time the inspection rolls around in the 2011 time period, 9 the office is much bigger by then, correct? 10 A Yes, sir. 11 Q How many -- it's gone from six in '04 to -- what's our 12 number on September 12th of 2011? 13 A 14 office. 15 Q And Ms. Hinojosa and an ASAC and a SAC. 16 A And an intern. 17 Q And an intern. 18 A Yes, sir. 19 Q So it's more than double the amount of personnel, correct? 20 A Yes, sir. 21 Q You also, I assume, in this time period, if you started in 22 '04, DHS-OIG is a -- not only is a agency of DHS, but DHS itself 23 had not been, quote, alive very long at that moment. 24 A No, sir. 25 Q So you've probably also seen, in addition to the jump in Nine agents in McAllen, and three agents in the Laredo sub Only since 2003. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 48 of 214 948 1 numbers of employees, saw lots of changes in policies and 2 procedures, particularly on the paperwork side of the OIG from 3 your -- from '04 to the day of that inspection, correct? 4 A Yes, sir. 5 Q The -- when you get more agents, does that also mean you're 6 getting more cases? 7 A Yes, sir. 8 Q And that's part of the reason they're going to fund 9 positions in McAllen, right, and not Dubuque, Iowa, is because 10 there are more DHS employee personnel problems in this area that 11 required the attention of an inspector general. 12 A Yes, sir. 13 Q No doubt as long as you've been down here working cases, 14 there's lots of issues with the border and crime and corruption, 15 correct? 16 A Unfortunately, yes. 17 Q Right. 18 federal service. 19 A Yes, sir. 20 Q And after DHS itself was created and Border Patrol was added 21 into it and all of the -- what used to be Customs inspectors at 22 the border, right, when all of that CBP got added in to DHS, 23 that meant there's a lot of employees down here on the border 24 that frankly have issues -- law enforcement issues, correct? 25 A And unfortunately also, a lot of that is within the Yes, sir. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 49 of 214 949 1 Q So the McAllen field office had to be one of the busier 2 offices in the country for DHS-OIG, was it not? 3 A It was, yes, sir. 4 Q So thrown into that mix are not just veterans like yourself 5 or veterans like Marco Rodriguez, but also some pretty brand new 6 agents like Della Saenz, correct? 7 A That is correct. 8 Q They certainly -- the younger agents needed, like Ms. Saenz, 9 for example, way more supervision and oversight than say you or 10 a Marco Rodriguez, correct? 11 A Yes, sir. 12 Q And you're pretty much -- you've been around long enough, 13 and you're a self starter. 14 A Yes, sir. 15 Q So more cases, paperwork changing, newer agents, can you 16 understand why the level of supervision issues also go up 17 commensurate with these other things I've been going over? 18 A Yes, sir. 19 Q Right. 20 came was not the same job Gene Pedraza has by the date of that 21 inspection. 22 A That's correct, sir. 23 Q Particularly with the responsibilities that go along. 24 A Yes, sir. 25 Q And are you aware of how often headquarters is being So the job Gene Pedraza had in '04 when you first You agree with that? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 50 of 214 950 1 involved in your cases or with the supervisors or the contact? 2 A No, sir. 3 Q Okay. 4 A No, sir. 5 Q The JIC. 6 A Joint Intake Center, yes, sir. 7 Q And you're aware of how things get called into the JIC and 8 cases get generated down? 9 A Yes, sir. 10 Q And were you aware of whether the McAllen office was -- 11 either itself was making the decision or headquarters to open 12 every little complaint that ever got sent up? 13 A 14 point we were told that headquarters was opening cases on their 15 own. 16 Q 17 down even if it's a call about an anonymous source from an 18 anonymous source helping an anonymous or an unknown federal 19 employee assist an unknown organization. 20 were actually getting opened, were they not? 21 A They were. 22 Q And even a trained veteran investigator like you would have 23 trouble doing a whole lot with something like that, correct? 24 A You can't do anything with that really. 25 Q Right. So you don't know if it's daily, hourly, monthly? You're aware of that, right? At the beginning it was -- it was at the office. At some So they're getting opened at the Washington level and sent Those kind of cases So then it becomes a paperwork game, for lack of a Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 51 of 214 951 1 better term, does it not? 2 A Yes, sir. 3 Q Meaning you're just going to have to -- headquarters has 4 opened it. 5 supervisory chain, then gets assigned to J.R. Flores, you're the 6 one that's going to have to deal with that? 7 A Yes, sir. 8 Q And really you're just going to have to push it through and 9 get it closed essentially, correct? It's been assigned to McAllen. It fit within the 10 A Yes, sir. 11 Q With whatever you can try to do with that anonymous 12 complaint, correct? 13 A Yes, sir. 14 Q Those kind of cases, were they all dog cases, for lack of a 15 better term, being assigned just to one agent, or was most 16 everybody getting that across the board? 17 A They were spread out amongst everyone, sir. 18 Q Which means, I assume, everybody hated getting the dog 19 cases. 20 A Yes, sir. 21 Q Right? 22 mentioned you got assigned the Pharr POE. 23 are there? 24 A In the McAllen area, sir? 25 Q Or that you would have had in your territory. And there became a point in time, right, I think you And how many bridges Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 52 of 214 952 1 A Mostly just the Pharr bridge. Someone else had the Hidalgo 2 bridge. 3 area. 4 Q Pharr is a very busy bridge among those bridges, right? 5 A Yes, sir, it is. 6 Q So you're going to get -- once that shift happens, you're 7 going to get any great case coming out of there, and you're 8 going to get any dog case coming out of that territory, correct? 9 A Yes, sir. 10 Q So particularly at that point, that's really not a -- a 11 supervisory -- supervisory decision to punish an agent. 12 you've got a territory, you know going in you're going to get 13 the good ones, you're going to get the bad ones. 14 going to be true for everybody. 15 bridge, right? 16 A Yes. 17 Q The guys here in Brownsville, they're going to have the 18 bridges here, correct? 19 A Yes, sir. 20 Q So it's hard to impute some motive there to the assignment 21 of cases, that that's a punishment thing. 22 A Again, they were just shifted geographically, sir. 23 Q Right. 24 some from some agents who had been very diligent about their 25 paperwork and what they put into a working file and just the Someone else had the Progreso bridge. It was just that If And that's The guy that's got the Hidalgo Don't you agree? And when cases got shifted around, I assume you got Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 53 of 214 953 1 opposite. You probably got some from some agents that had not 2 been as diligent. 3 A Yes, sir. 4 Q I assume, now talking about this Salinas file -- and I just 5 want to talk about the file itself. 6 the incident with Gene Pedraza. 7 A Yes, sir. 8 Q But just the file itself, were you shocked or appalled when 9 that got reassigned to you and you open it up and there's not a I'm going to come back to 10 whole lot in it? 11 A Yes, sir. 12 Q Did you make any attempts to go to the prior agent and ask, 13 "Hey, did you run a TECS check?" 14 other law enforcement agency?" 15 Or anything like that? 16 A 17 had it before I did. 18 Q 19 Pedraza, the two supervisors, or Ms. Hinojosa and ask, "Can you 20 query the system and tell me who might have had this?" 21 A No, sir. 22 Q That was certainly an option that was available, was it not? 23 A It was an option. 24 Q Right. 25 there not? No, sir. Or, "Did you liaison with some Or, "Did you do a surveillance?" I didn't know who -- I don't know to this day who Did you go to either Special Agent Warren or Special Agent Because there is something called the EDS system; is Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 54 of 214 954 1 A Yes, sir. That's our internal database. 2 Q Right. 3 A It holds all of our cases. 4 uploaded into EDS. 5 is written, it's put into the system. 6 Q 7 notes in, was there not, and kind of update things. 8 A Yes, sir. 9 Q Right? 10 A Yes, sir. 11 Q And what was your understanding about how often you were 12 supposed to do that? 13 A Monthly. 14 Q And were you being diligent about doing that? 15 A On that case or -- 16 Q All your cases. 17 A Tried to, yes, sir. 18 Q Just -- the bottom line, as long as you've been in the 19 system, I went through it in my 22 years, there was lots of 20 bureaucracy when you work for the federal government; is there 21 not? 22 A Yes, sir. 23 Q And it's their rules. 24 you're going to have to follow their rules. 25 A And what do you understand the EDS System to be? Nowadays, all of the reports get So when some activity takes place, a report Back then it wasn't. But even back then, there was a section for agents to put Yes, sir. And if you're going to work for them, Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 55 of 214 955 1 Q So updating EDS or whatever they -- you're being told to do 2 is just part of being in the federal bureaucracy. 3 A Yes, sir. 4 Q Correct? 5 duties, to follow the rules. 6 that, can it not? 7 A Yes, sir. 8 Q So the Salinas file. 9 it and really didn't make any efforts that you recall to find And you have work plans where that's part of your And your pay can be judged by You -- again, you didn't know who had 10 out who had had it. 11 A No, sir. 12 Q Was that an unusual deal as to a file like that where you 13 would get one again on one of these transfers where it had been 14 open and there were gaps in it? 15 A There were several that way, sir. 16 Q So as to Gene Pedraza, if you saw that there were cases with 17 gaps in it, you have to assume the supervisory staff knew that 18 there were cases with gaps in it. 19 A Sure. 20 Q Ms. Hinojosa, let's talk about her real briefly. 21 good at her job? 22 A Yes, sir. 23 Q If you needed something, was she somebody you could go to 24 and ask questions and get an answer? 25 A I just started working on it. They're the ones that assigned them. Yes, sir. Was she Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 56 of 214 956 1 Q Would that include -- did you ever have an occasion to have 2 something involving your personnel file, maybe your insurance or 3 something that's related to your benefit package or to your 4 employment, that you had to ask her to contact Washington HR to 5 get information for you? 6 A 7 been the one to ask. 8 Q 9 you think if somebody had an HR question, she's going to be able I don't recall anything specific, sir, but she would have Right. And just as she got anything you wanted case-wise, 10 to get an answer? 11 A More than likely, sir. 12 Q The working relationship with Gene Pedraza and Cindy 13 Hinojosa, was it professional in your opinion? 14 A Yes, sir. 15 Q He was the boss agent, and she essentially, even though 16 there wasn't really another one other than an intern, she was 17 kind of the boss of the non-agents or the unsworn personnel, 18 correct? 19 A Yes, sir. 20 Q Right. 21 A Yes, sir. 22 Q Right. 23 for, particularly the Marshal Service, they probably had an 24 administrative officer like that too, correct? 25 A As an administrative officer? And probably the other federal agency you worked They did. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 57 of 214 957 1 Q Right. All the federal agencies tend to have one of those 2 positions, correct? 3 A Yes, sir. 4 Q Or sometimes more if it's a bigger agency and more issues, 5 correct? 6 A Yes, sir. 7 Q FBI is probably full of those, as many agents as the FBI 8 has. 9 A Yes, sir. 10 Q MOAs. 11 A Yes, sir. 12 Q That's the standard form that DHS-OIG uses to note whatever 13 happens in a case, does it not? 14 A Yes, sir. 15 Q And was that form the same from '04 to today? 16 A Yes, sir. 17 Q Within the McAllen office, what date did you understand you 18 were supposed to sign on an MOA when you signed an MOA? 19 A On or about the date the activity occurred. 20 Q So if there's been one of these -- we all agree that there 21 were times the agents -- like you might have sent several MOAs 22 to Jody Warren, and you didn't get them back for a while. 23 A Unfortunately, yes. 24 Q Right. 25 Warren, if it was two months later, you would sign the date of You're familiar with that term? So when you got those back from Special Agent Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 58 of 214 958 1 the activity in the report? 2 A 3 was just typed in. 4 that's the date that it was -- that was typed in. 5 we get it back from Mr. Warren, we just signed them. 6 Q 7 had not typed in the date? 8 A Uh-huh. 9 Q What about a handwritten date? 10 A Usually -- sometimes I would sign it the date that I got it 11 back, depending on how -- how long it was, how long of a gap it 12 was. 13 Sometimes it was sign it within -- it's supposed to be signed 14 within a couple of days of the activity. 15 go ahead and sign it the date you got it back. 16 there was -- there was really no rules on that. 17 Q 18 meaning signing an MOA you had not personally prepared? 19 A Yes, sir. 20 Q What would be a circumstance that you would do that? 21 A Most of those were from our Laredo office. 22 original case files were kept in McAllen, as McAllen was the 23 field office, the Laredo agents would submit their reports to -- 24 to McAllen for approval. 25 out in McAllen, and one of the McAllen agents would sign for one Usually when the reports were submitted, sometimes the date Whatever date that the report was written, So whenever If it didn't have a date, if whatever agent had prepared it What would you do? We were told different things at different times. Sometimes it was no, There was -- Were there times you were asked to sign for other agents, Because the To save time, the reports were printed Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 59 of 214 959 1 of the Laredo agents. So if it was say, for example, Ramiro Garcia, agent in 2 3 Laredo, I would sign Eraslio Flores for Ramiro Garcia. 4 Q 5 it was at training, was in Georgia at the FLETC? 6 A Like a McAllen agent? 7 Q Right. 8 A That did occur occasionally, sir. 9 Q So you did have the occasion to sign for another agent who What about if an MOA comes back and the agent who prepared 10 might be gone, vacation, at FLETC, whatever? 11 A Yes, sir. 12 Q In those situations, would you sign "for"? 13 name is going to be typed. 14 Castillo's name is typed, and Edwin is at the FLETC. 15 write "for" and then write Eraslio Flores? 16 A Usually I would sign like Eraslio Flores for Edwin Castillo. 17 Q Right. 18 A It occurred quite a bit, sir. 19 Q Was there ever an occasion where MOAs came back at a later 20 time after you thought they were gone and finished that somebody 21 either at the headquarters level on your supervisory staff said, 22 "We need to make a change and resign this," an editing or 23 grammatical or whatever? 24 A 25 that comes to mind is the titling of our reports changed at one Because their Like let's say, for example, Edwin Would you Not an unusual occasion for that to happen too? The only one -- the only time that came to mind, sir, or Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 60 of 214 960 1 point. If you conducted an interview, the title of the 2 interview used to be "Personal Interview" colon, "Joe Smith," 3 and then you'd write your report, sign it, date it, supervisor 4 would approve it, it would go in the case file. At some point, some headquarters policy changed, and now 5 6 they wanted the interviews titled "Interview of Joe Smith." 7 at that point we were instructed to retitle the report. 8 report, just to retitle it, sign it and put it back in the file. 9 Q Okay. So Same And would that report be dated the date of the 10 original submission? 11 A Yes, sir. 12 Q So it's, quote, backdated, but not in a way trying to fool 13 anybody? 14 A In that case, no, sir. 15 Q But there's no doubt, though, in that situation, that the 16 pen that hit the paper didn't hit the paper on the date that's 17 going to be reflected. 18 A Correct. 19 Q And again, if you did that, you weren't trying to fool 20 somebody. 21 told. 22 A Yes, sir. 23 Q Marco Rodriguez. 24 A Yes, sir. 25 Q Veteran agent, right? You're just following the rules or doing what you're His name has come up a few times. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 61 of 214 961 1 A Yes, sir. 2 Q Was he somebody that you observed and that you respected 3 based on your observations? 4 A Yes, sir. 5 Q And why is that? 6 A When he came onto the -- I didn't know him when he came into 7 the office, but we started working together, and we worked in a 8 similar manner. 9 experience, and we shared a lot. We got along real well. He had a lot of 10 Q Without going into what he might have said, were you aware 11 whether he shared these feelings about the bad morale of the 12 office? 13 A Yes, sir. 14 Q He did? 15 A He did, yes, sir. 16 Q What did you observe the relationship to be, the 17 interpersonal relationship between Marco Rodriguez and Gene 18 Pedraza? 19 A Very minimal contact. 20 Q Was it simply in your observation a supervisor of a federal 21 agency and an employee of the federal agency relationship? 22 A Yes, sir. 23 Q Where you observed them going to lunch? 24 A No, sir. 25 Q Were you aware if they were meeting on Sundays and watching Had very little contact. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 62 of 214 962 1 Dallas Cowboy football together? 2 A No, sir. 3 Q No, they weren't? 4 A No, they weren't. 5 Q Would you have described them to anybody as friends? 6 A No. 7 Q Now, going to this -- I'm going to go now to the incident 8 with the Salinas file with Gene Pedraza -- 9 A Yes, sir. 10 Q -- just to let you know. 11 described that Gene Pedraza was pretty much on edge, right? 12 A Yes, sir. 13 Q I mean, is that surprising to you? 14 for a long time up to then, that he would have been nervous 15 about headquarters coming in? 16 A 17 uptight about certain things. 18 Q Right. 19 A Stressed out. 20 Q In fact, that's a fairly common thing with his personality, 21 right, that he can get frazzled? 22 A Yes, sir. 23 Q So from that standpoint -- and that -- it sounded to me like 24 when I heard your answer to Mr. Kidd about when you asked him, 25 "Gene, why are you so wound up about this," or whatever term you Leading up to that, you've That -- that's -- he was like that. You had worked with him He was prone to get Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 63 of 214 963 1 used, that you had some empathy or care or concern because 2 you're watching him -- he's getting amped up, and you're like, 3 okay. 4 A 5 was simply, "Why are you so stressed out? 6 this before." 7 Q 8 that the SAC of the office going through the inspection is in a 9 different position than just a line agent like you going through Was that kind of your intent? Well, again, we had been through it before, and my question We've been through And again, in fairness to him, would -- you'd have to admit 10 an inspection. 11 A Yes, sir. 12 Q There's just no doubt about that, correct? 13 A Yes, sir. 14 Q From your standpoint of what you had to do with the 15 inspection was really just talk to Special Agent Izzard, right? 16 A And the inspectors. 17 Q And the inspectors. 18 A Yes, sir. 19 Q Answer whatever questions they had and go about your 20 business. 21 A Yes, sir. 22 Q From both Gene Pedraza's standpoint and Ms. Hinojosa's as 23 the administrative officer, from the second the inspectors got 24 there until the inspectors left, they were -- you'd have to 25 admit they were probably on go with the inspectors the whole Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 64 of 214 964 1 time. 2 A Yes, sir. 3 Q So now this incident. 4 about the time period of the incident. 5 A Which incident, sir? 6 Q The Salinas. 7 A Again, a couple of weeks before the inspection, he came into 8 my office and asked about the Jesus Salinas case. 9 Q Kind of tell me -- tell us again The thing with Gene Pedraza and the file. And were you aware that the inspection was, quote, an open 10 book test, meaning that the agency -- McAllen knew what files 11 were going to be looked at ahead of time? 12 A Yes, sir. 13 Q I mean, were you surprised that he was asking that 14 particular question first to start, which is there was no doubt 15 it was a file that had a gap in it, and he's asking the guy now 16 assigned to it what's going on here. 17 surprising, was it? 18 A No, sir. 19 Q Right. 20 are you sitting behind your desk? 21 A Yes, sir. 22 Q And your office was actually not just directly across from 23 the interview room. 24 A Yes, sir. 25 Q Right. That alone was not And when that occurred, physically to set the scene, Isn't it down just a bit? Several feet down the hallway? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 65 of 214 965 1 A A few feet, yes, sir. 2 Q So where is he physically? 3 Gene Pedraza? 4 A He was standing -- he was standing off to my right. 5 Q Was your door open? 6 A Yes, sir. 7 Q Was he close to the hallway, or was he still like standing 8 in the hallway? 9 hallway, or is he all the way into your -- If you're at your desk, where is If this is the doorway, is he -- he in the 10 A No, he's all the way into my office. He's standing right 11 next to my desk. 12 Q Okay. 13 A Yes, sir. 14 Q Were you aware of whether other employees were around that 15 day? 16 A I don't know, sir. 17 Q But it was otherwise a regular workday? 18 A Yes, sir. 19 Q Do you remember about what time of day? 20 A No, sir. 21 Q So he comes in and he asks you the question. 22 your first response when he says, you know, "What's going on 23 here?" 24 A 25 said, "There's nothing in here." But the door is open. And what was I told him that there was no -- you know, there's -- he I said, "Yeah, I know." I Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 66 of 214 966 1 said, "I just got this a couple of weeks ago." And I told him 2 what I had done, that I had done the case opening report and a 3 couple of other preliminary things, personnel records, work 4 schedules, telephone tolls. 5 Q 6 about about colors of files, working versus the case file. 7 want to stop right there to go over that because I'm about to 8 ask about the case file. You gave an answer to Mr. Kidd that I wasn't real clear So I The working file was brown, was it not? 9 10 A You know, I don't remember, sir. They change different 11 colors. 12 them. 13 Q 14 case files, not a working file, but a case file. 15 A Okay. 16 Q Does that help refresh your memory? 17 A Yes, sir. 18 Q The blue being the case file or whatever kind of turquoisey 19 color this is? 20 A Sure. 21 Q Right? 22 not this color. 23 whatever over the time period, it was different? 24 A I don't remember, sir. 25 Q But it was different than this. Some were red, some were blue, and then they changed Well, if what I'm holding has been identified as one of the Meaning then that the case -- the working file was Whether you remember it as brown or red or The working file was not Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 67 of 214 967 1 the same color as this, was it, where they could get mixed up? 2 I'm not trying to trick you. 3 A 4 point all the files were one color. 5 were red, some were blue. 6 what color my work file was. 7 Q 8 there is a, quote, official file that's in the file room. 9 A Yes, sir. 10 Q Right. 11 A Yes, sir. 12 Q In a separate folder, correct? 13 A Yes, sir. 14 Q And when Gene Pedraza comes into your office, are you aware 15 of whether he's ever seen the working file? 16 A No, sir. 17 Q And it sounds from your answer that even from your 18 standpoint in the time period you had it, you had done some 19 initial work that had not yet been uploaded either into the 20 system or particularly made it into the case file. 21 A 22 file. 23 Q 24 some things. 25 A No, no, I understand. I just don't remember, because at one Then they changed. Some I just don't remember at the time But no doubt during the -- while an investigation is open, And then the agents have a working file. I don't know what was in the -- what was in the original No. I meant of your work, because you said you had done Yes, sir. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 68 of 214 968 1 Q You said something like, "Well, Gene, I have done 2 something." 3 A Yes. 4 Q But it sounds like -- correct me if I'm wrong or explain. 5 It sounds to me like you had done something like maybe a TECS 6 check but had not memorialized that and had not made it to him 7 yet. 8 A That's possible. 9 Q Right. So again, there could have been things in that file 10 before it was assigned to you -- in the working file, I'm 11 talking about, not the case file. 12 it, there could have been things in there that you had done that 13 he's not aware of yet. 14 A That's possible, sir. 15 Q So now he's -- he's asked and you've answered, you know, 16 "It's just been assigned to me. 17 do you remember him saying next? 18 A 19 gap." 20 Q 21 their face value? 22 A That there was a big gap, yes, sir. 23 Q Right. 24 into this thing, are there some things that have not made it 25 into the case file yet? But no doubt after you had I've done some things." He said, "There's too big of a gap. What We need to bridge the Was that not a true statement if we just take those words at And that then the bridging the gap issue goes back Is that one logical explanation for Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 69 of 214 969 1 that question? 2 A It could be, sir. 3 Q Because, again, I went over that earlier. 4 inherited cases from other agents that when you looked at it, 5 there were things that had not been formally memorialized. 6 A Correct. 7 Q So again, that's going to be in a working file, not in a 8 case file. 9 bridge it, on its face, you have to admit, could be interpreted That you had So that question alone about isn't there some way to 10 that this just -- simple. Are there things that have not made 11 it into the file yet? 12 A I didn't take it that way. 13 Q I know you didn't, but is that one interpretation? 14 A It could be. 15 Q Thank you. So what do you recall your answer to that was? 16 17 A "I've done -- this is what I've done." I said why -- "Find 18 out who had the case before me. 19 forgot to write it, didn't document it in a report. 20 did something." 21 Q 22 That's a very logical thing you said back to him, is it not? 23 A Yes, sir. 24 Q Except I was asking whether you had done that. 25 of shifted the burden back to him, and I assume it's because you Maybe they did something and Maybe they Which is exactly what I was just asking you questions about. You've kind Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 70 of 214 970 1 didn't know who the prior agent was, where you're going, "Gene, 2 you go find out if there's something that hasn't made it into 3 the file," right? 4 A That's not what I'm saying, sir. 5 Q Okay. 6 again what you said, and then explain what that meant. 7 A 8 before me. 9 Q That's what you're saying? Well, then, when you said that to him, first tell me I said, "If you can find out -- find out who had the case Okay. Maybe they did something and forgot to document it." So correct me if I'm wrong, but what you're saying 10 is, "Gene, you have the" -- to Gene, to explain it further, it 11 sounds like you're saying. 12 look in the system and see who had this case before me," 13 correct? 14 A Yes. 15 Q And, "Gene, once you do that, you can then go to that agent 16 and ask that agent, hey, did you work on this file during 17 that -- this gap that's in there? 18 to memorialize it." 19 A Correct. 20 Q Right? 21 correct? 22 A Yes, sir. 23 Q Did -- what was his response to that? 24 A He can't -- he didn't respond to that. 25 Q All right. "Gene, you have the ability to go Because if you did, you need That was a very logical thing for you to say, Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 71 of 214 971 1 A He just -- 2 Q So you don't know if he didn't respond that he didn't think 3 that was the best idea he heard that morning? 4 A I'm sorry? 5 Q You don't know, because he didn't respond, that he wasn't 6 thinking, "Thanks, J.R., for giving me that tip. 7 go do that." 8 A I don't know -- I don't know what he was thinking, sir. 9 Q Right. 10 A I don't know. 11 Q At the moment he's standing in your office -- and first, 12 he's never asked you to do anything like that before, has he? 13 A No, sir. 14 Q And he certainly didn't afterwards. 15 A No, sir. 16 Q Right? 17 he's frazzled from the inspection, correct? 18 A Yes, sir. 19 Q But you also have to admit he knew who he was talking to. 20 He knew that this is J.R. Flores who's been a McAllen cop, who's 21 been a deputy marshal, who's been a inspector general special 22 agent for eight years at that time, including a significant time 23 as an FBI task force employee, that it would be awful brave to 24 ask that guy sitting on the stand now, hey, commit a crime for 25 me just to fill in a gap in a file, don't you agree? I'm going to So you don't know if he didn't go do that, correct? And it is at a point in time where everybody admits Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 72 of 214 972 1 A I'm sorry sir. 2 Q Wouldn't that be awful brave of him to ask a guy like you 3 that could turn around and arrest him or call headquarters or 4 call the FBI by asking you to commit a crime? 5 A Yes, sir. 6 Q That would be awful brave? 7 A Yes, sir. 8 Q And this nervous guy that you worked with all those years, 9 did he ever strike you as that brave? 10 A What's the question? No, sir. MR. EASTEPP: 11 I'll pass the witness. REDIRECT EXAMINATION 12 13 BY MR. KIDD 14 Q 15 keep this brief. 16 A Yes, sir. 17 Q During questioning by Mr. Eastepp, you talked about how 18 DHS-OIG policies had changed over time from 2004 up until nine 19 because it was a growing agency; is that correct? 20 A Yes, sir. 21 Q At any point did the DHS-OIG policy regarding the truth and 22 accuracy of investigative reports change? 23 A No, sir. 24 Q At any time did the policy dictate that you could put in 25 false or misleading information into an investigative report? Agent Flores, just a few follow-up questions. I'll try to Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 73 of 214 973 1 A No, sir. 2 Q Was that always prohibited? 3 A Yes, sir. 4 Q Was it prohibited when you started? 5 A Yes, sir. 6 Q Is it prohibited now? 7 A Yes, sir. 8 Q You also had a brief discussion about these cases you've 9 termed dog cases. 10 A Yes, sir. 11 Q Do you remember that? 12 A It's just a case that has no hope of ever being solved 13 because there's no one to interview. 14 unknown agent that's doing something, but there's no way to 15 corroborate it. 16 interview anybody. 17 go watch anybody because you don't -- there's nothing there. 18 Q So there's limited investigative activity you can do. 19 A Yes, sir. 20 Q Did you -- were you assigned dog cases? 21 A Yes, sir. 22 Q Did you close dog cases? 23 A Yes, sir. 24 Q Did you do that by placing falsified MOAs in them? 25 A No, sir. What's a dog case? It's allegation on a There's nothing really you can do. You can't check anybody's phone. You can't You can't Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 74 of 214 974 1 Q Is it okay to close a dog case by falsifying the 2 investigative activity placed within that report? 3 A No, sir. 4 Q Why not? 5 A It doesn't matter, sir. 6 you can't do that. 7 just to close a case. 8 Q 9 it's a dog case? It's a dog case. It's -- it doesn't matter. It's illegal. It -- You can't make something up So it's never okay to place a false report in a file even if 10 A That's correct, sir. 11 Q Now, Agent Flores, I want to go back to the conversation you 12 had with the defendant about the Salinas file. 13 counsel talked briefly about a working file and a case file, and 14 you explained that there's some confusion about the color 15 because it changed over time; is that correct? 16 A Yes, sir. 17 Q Regardless of the color, the case file you received on the 18 Salinas matter, did it have any work documented in it? 19 A 20 January of 2011. 21 Q Were there any handwritten notes in there? 22 A No, sir. 23 Q Post-its dictating -- stating that a TECS record had been 24 run, CLEAR record had been run, anything of that nature? 25 A You and defense No, sir, other than that computer query that was done No, sir. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 75 of 214 975 1 Q Was it your understanding when you received that file in 2 July of 2011 that no work had been performed? 3 A That's correct. 4 Q When the defendant came in your office a few weeks before 5 the inspection to discuss the Salinas case, did you inform the 6 defendant that you had just been assigned the case in July of 7 2011? 8 A Yes, sir. 9 Q Notwithstanding the fact you had just been assigned the 10 case, did the defendant ask you to draft or document 11 investigative activity that took place prior to you being 12 assigned the case? 13 A Yes, sir. 14 Q At any point during that conversation, did the defendant 15 tell you: 16 agent in the office, discuss with him the work they had done in 17 this case and document that? 18 A No, sir. 19 Q In fact, did the defendant simply suggest that you document 20 activity such as a surveillance? 21 A Yes, sir. 22 Q Had you conducted surveillance on the case? 23 A No, sir. 24 Q Did you let him know that? 25 A Yes, sir. Agent Flores, I need you to go get with any other Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 76 of 214 976 1 Q When the defendant came in and asked you to draft these 2 reports, did you tell him that you had conducted work on the 3 case? 4 A Yes, sir. 5 Q What did you tell him you had done? 6 A That I had done the case opening report, requested 7 Mr. Salinas' personnel file, telephone tolls on Mr. Salinas' 8 telephone, and I believe the work schedule for the day in 9 question. 10 Q At that point when the defendant came into your office, had 11 you documented that in a report of investigation or an MOA? 12 A Yes, sir. 13 Q Where was it -- where were those MOAs at that time? 14 A Those were in my -- in the case file. 15 Q So the work you had done was actually in the case file? 16 A Yes, sir. 17 Q Did you inform the defendant that you had documented that 18 activity? 19 A Yes, sir. 20 Q Was he happy with what you had done? 21 A I didn't get a reaction from him on that. 22 Q Was he -- did he appear to be concerned about the time 23 period from July of 2011 to the time he was having that 24 conversation with you in your office? 25 A I'm sorry? I told him what I had done. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 77 of 214 977 1 Q Was he concerned about the time period from July of 2011 2 when you were assigned the case to when you were having that 3 conversation in or about September of 2011, or did he appear 4 concerned about the time period prior to July of 2011? 5 A 6 to July or August of 2011 when we were having the conversation. 7 Q And did he ask you to resolve that gap of inactivity? 8 A He suggested that I write up some surveillance reports. 9 Q And again, did he tell you to go get with any other agent in He was concerned about the time period from August of 2010 10 the office to figure out what they had done on the case? 11 A No, sir. 12 Q Did he tell you who had had the case prior to you? 13 A No, sir. 14 Q When you suggested that the defendant go talk to other 15 agents in the office and see if they had done any work, did the 16 defendant seem appreciative of that suggestion? 17 A 18 gauge his reaction. 19 Q What was his demeanor when he left your office? 20 A Like I said, he -- he was up -- his face got flushed. 21 turned around, walked out of my office. 22 Q 23 flushed? 24 A When I told him that I wasn't going to do it. 25 Q Agent Flores, do you have any doubt in your mind that what I couldn't gauge his reaction, but he -- he -- I couldn't He When -- at what point in the conversation did his face get Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 78 of 214 978 1 Defendant was asking you to do was to document investigative 2 activity that had not been performed for a time period on a case 3 when it was not assigned to you? 4 A There's no doubt. 5 MR. KIDD: 6 THE COURT: 7 MR. COONEY: 8 Judge, may I have just one moment? (Nod indicated.) Pass the witness at this time. No further questions. RECROSS-EXAMINATION 9 10 BY MR. EASTEPP 11 Q 12 term, "Did he ask you to draft MOAs for surveillances." 13 words were never used? 14 A 15 surveillances you can write up." 16 Q 17 that he's not aware of. 18 mean make it up, are you not? 19 A Yes, sir. 20 Q Right. 21 A Yes, sir. 22 Q Not a tape recording, correct? 23 A Correct. 24 Q And again, he never asked you to fabricate -- use the word 25 would you fabricate something, right? Just very briefly, Special Agent Flores. No, sir. Right. Mr. Kidd used the Those What he said was, "I'm sure there's some Meaning there may be something in the working file That alone, you're interpreting it to And this is all coming from your memory. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 79 of 214 979 1 A He never used that word, sir. 2 Q Will you lie for me? 3 make something up? 4 A He did not, sir. 5 Q It was actually a question, "I'm sure there's a surveillance 6 you can write up." 7 A Yes, sir. 8 Q Not -- not -- okay. 9 Will you falsify a record? He never used any term like that? That's a question, right? MR. EASTEPP: 10 MR. KIDD: 11 THE COURT: 12 THE WITNESS: 13 THE COURT: That's all I have, Judge. No further questions, Your Honor. All right. All right. for about an hour-and-a-half. 15 minute break. 17 18 Agent, you can step down. Thank you, Judge. 14 16 Will you Ladies and gentlemen, been going Let's take about a ten or 15 (Jury leaves courtroom) THE COURT: All right. (Recess taken from 10:06 to 10:30.) 19 THE COURT: 20 MR. COONEY: Counsel, are we ready to move forward? We are if I could just preview one issue, 21 which is that first, with respect to the clips that we were 22 talking about before, we only intend to offer now Government's 23 Exhibit 21, the same one we played yesterday in terms of what 24 we're going to show the jury. 25 for the Court since I said there were going to be other ones. So I just wanted to preview that Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 80 of 214 980 1 And then the second thing is already admitted into evidence 2 is Government's Exhibit 14, which are TECS records. 3 Sirles, in preparation for this testimony and to aid the jury, 4 created summary tables of information contained within those 5 TECS records, and we intend to move them into admission as 6 summary exhibits. 7 Agent I believe that Mr. Eastepp, not to speak for him, has an 8 objection to them coming in as exhibits, but does not object to 9 us using them as demonstratives for purposes of her testimony. 10 So we're going to show them to the jury, and then we can have 11 whatever argument we need to have before Your Honor about 12 whether they come into evidence. 13 it now, but we can have that later on because I think we don't 14 have an objection to me showing them to the jury and Agent 15 Sirles testifying from them. 16 MR. EASTEPP: 17 THE COURT: We're certainly prepared to do I just got them three minutes ago. Okay. So one of your objections is while 18 they're permissible under the rules if they're accurate, you 19 have no way of knowing that they're accurate. 20 MR. EASTEPP: Right. 21 demonstrative aid thing. 22 evidence. 23 24 25 THE COURT: So as I said, I'm okay with the I'm not okay moving them into All right. Well, let's take it up later after he's had an actual chance to review them. MR. COONEY: Absolutely, absolutely. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 81 of 214 981 1 THE COURT: 2 MR. COONEY: 3 Okay. Otherwise we are ready to go. (Jury enters courtroom) 4 THE COURT: 5 MR. COONEY: 6 Then are we ready to go? All right. Ladies and gentlemen, be seated. The United States calls FBI Agent Laura Sirles. THE COURT: 7 8 Step up, Ms. Sirles, and be sworn. (Witness sworn.) THE COURT: 9 Be seated. LAURA SIRLES, 10 11 the witness, having been first duly cautioned and sworn to tell 12 the truth, the whole truth and nothing but the truth, testified 13 as follows: DIRECT EXAMINATION 14 15 BY MR. COONEY 16 Q Good morning, Agents Sirles. 17 A Good morning. 18 Q Could you please state and spell your name for the record. 19 A Laura Sirles. 20 Q Agent Sirles, where are you employed? 21 A I'm a special agent with the FBI. 22 Q How long have you been a special agent with the FBI? 23 A For five years. 24 Q What do you do as an agent with the FBI? 25 A I investigate federal criminal cases. L-A-U-R-A, S-I-R-L-E-S. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 82 of 214 982 1 Q Where are you currently assigned? 2 A To San Antonio, Texas, division. 3 Q What type of cases do you presently investigate? 4 A I'm on a public corruption squad. 5 Q What does that mean? 6 A We investigate allegations of public corruption. 7 Q And, Agent Sirles, I'm going to ask you to just -- if you 8 want to take the mic, either move closer to the mic or move it 9 up just a little bit to make sure everybody in the back can 10 hear. 11 A Yes. 12 Q All right. Perfect. Now, Agent Sirles, what is your role with respect to the 13 14 case that we are here for today? 15 A I'm the assigned case agent. 16 Q What does it mean to be the assigned case agent? 17 A Means you're responsible for the case, and you see it 18 through to the end of the case. 19 Q Have you been involved in the investigation of this case? 20 A Yes, I have. 21 Q When did you become the case agent? 22 A The case was assigned to me in February of 2013. 23 Q And, Agent Sirles, actually what I'd like to do is we're 24 going to come back to that, but I want to back up a little bit. 25 Prior -- can you tell the jury a little bit about your Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 83 of 214 983 1 educational background? 2 A 3 Texas in Austin in finance. 4 Baylor University. 5 Q 6 Baylor? 7 A I did. 8 Q When you were first -- where were you first assigned as an 9 FBI agent? Sure. I have an undergraduate degree from the University of And I also have a law degree from Did you join the FBI after graduating from law school at 10 A I was part of the New Orleans Division. I was assigned to a 11 small office in Lake Charles, Louisiana. 12 Q And when did you come back to the Texas area? 13 A In January of 2013. 14 Q Are you from Texas? 15 A Yes, I'm from the Valley. 16 Q Now, getting back to when you were assigned to be the case 17 agent in this particular investigation, when was that again? 18 A February of 2013. 19 Q When you were first assigned to this case, did you have 20 what's referred to as a co-case agent? 21 A I do. 22 Q Who is that? 23 A That is Special Agent Michael Carlisle. 24 Q Was he assigned to become a case agent at the same time that 25 you were? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 84 of 214 984 1 A Yes, he was. 2 Q Were there any case agents assigned to this investigation 3 prior to your involvement? 4 A 5 Freddy Vela. 6 Q Did they pick up this investigation from the start? 7 A Yes, they did. 8 Q Are they still involved in this investigation? 9 A Yes, they are. 10 Q Now, Agent Sirles, is one of your roles as the case agent to 11 be present during the trial? 12 A Yes. 13 Q And, of course, you've been present here during the 14 testimony of the witnesses and whatnot; is that right? 15 A Yes. 16 Q Prior to this trial, did you have an opportunity to meet 17 with witnesses who testified here? 18 A Yes, I have. 19 Q Did you participate in interviews of them? 20 A Yes. 21 Q And apart from that, what other investigative functions have 22 you played in this case? 23 A 24 well. 25 Q Yes, there were two prior case agents, Robert Krupa and I have reviewed records that were gathered in this case as Have you had an opportunity, for example, to go to the Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 85 of 214 985 1 DHS-OIG McAllen field office that we've been discussing here in 2 court the past several days? 3 A Yes, I have been to that office. 4 Q Have you had an opportunity to observe the internal offices, 5 the hallways, the case file room that there's been testimony 6 about, things like that? 7 A Yes. 8 Q Now, Agent Sirles, I want to go ahead now and change topics. Have you had an opportunity to review the official case 9 10 files about which there have been testimony in court here today 11 from DHS-OIG? 12 A Yes, I have. 13 Q And I want to go ahead and show you one that's already been 14 admitted into evidence, which is Government's Exhibit 13. 15 happens to be the case file in 1086. 16 holding up, Government's Exhibit 13? 17 A Yes, I do. 18 Q Just what generally is Government's Exhibit 13? 19 A That is an original case file for case file No. 1086. 20 Q And is this -- when I say original case files, is this what 21 you understand me to be talking about? 22 A Yes. 23 Q Where did these come from, these blue files that we've been 24 talking about? 25 A This Do you recognize what I'm It contains original signatures. They were provided to the FBI by the Department of Homeland Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 86 of 214 986 1 Security-Office of Inspector General. 2 Q 3 control have then been maintained in? 4 A They have been in my custody. 5 Q All of these blue files that have been admitted into 6 evidence, are they in the same condition now as when they were 7 provided to you by DHS-OIG? 8 A Yes. 9 Q Have you or anybody else from the FBI made any markings in After they were provided to the FBI, whose custody and 10 them? 11 A None besides tabs marked for certain pages. 12 Q And that would be like a Post-it note just so that you could 13 find your page and things like that? 14 A That's correct. 15 Q If there were any Post-it notes in those files at the time 16 that you obtained them, did you keep those Post-it notes in 17 there? 18 A Yes. 19 Q Have you or anyone else from the FBI removed anything from 20 these case files? 21 A No. 22 Q Have you changed the order of anything in these case files? 23 A No. 24 Q Now, I'd like to speak specifically about the official case 25 file in the Manny Peña case. They were not removed. First of all, have you had an Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 87 of 214 987 1 opportunity to review that official case file? 2 A Yes, I have. 3 Q And that has been entered into evidence as Government's 4 Exhibit No. 1. I'll just go ahead and hold it up for you. Have you had an opportunity to review MOAs that were placed 5 6 into the official Manny Peña case file? 7 A Yes, I have. 8 Q And just so we're clear about your role in all of this, have 9 you played any role in investigating the Manny Peña case itself? 10 A No, I have not. 11 Q Have you played any role in investigating any of the 12 criminal allegations that are actually the subject of these blue 13 files, the government exhibits? 14 A No, I have not. 15 Q Your role is limited to investigating the criminal 16 allegations in this case; is that right? 17 A That's correct. 18 Q I'm going to put up for you what's been admitted into 19 evidence as Government's Exhibit 1C. 20 Can I please get the ELMO? 21 All right. And I'm going to actually go ahead and start at 22 the bottom. And, of course, Government's Exhibit 1C, this is a 23 document that's been shown a couple times here in court already 24 while you've been here; is that right? 25 A That's correct. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 88 of 214 988 1 Q If you could just orient the jury. First of all, generally 2 what is Government's Exhibit 1C? 3 A 4 No. 537, case title, CBPO Manuel Peña. 5 Q And what investigative activity does this MOA reflect? 6 A The first paragraph is a summary of the allegations, and the 7 second paragraph indicates there was a review of TECS records 8 showing that CBPO Manuel Peña had an extensive crossing history. 9 Q This is a memorandum of activity pertaining to case file Now, is there any date in this MOA associated with the TECS 10 record check in the body of the MOA? 11 A No, there's not. 12 Q Now, I want to go down to the signature block. 13 there's -- if we can read it right here, and there's been 14 testimony about the signatures for -- Edwin Castillo for Agent 15 Ball and the signature of the defendant, Eugenio Pedraza; is 16 that right? 17 A That's correct. 18 Q And can you just read out, though, for the jury the 19 handwritten date here next to Edwin Castillo's signature? 20 A 3/3/2010. 21 Q And can you read out the date for the defendant, 22 Mr. Pedraza's signature? 23 A It appears to be 3/5/2010, but it also may be 3/15/2010. 24 Q Now, just yes or no. 25 activity to attempt to confirm whether any TECS check had been And Did you conduct any investigative Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 89 of 214 989 1 run in the time period of March 3, March 5, or March 15, 2010? 2 A Yes. 3 Q All right. 4 And it cuts off a little. 5 Take the opportunity to do that. All right. 6 I'm going to show you Government's Exhibit 14A. Actually I can zoom this up, can't I? Excellent. Can you please tell the jury what Government's 7 Exhibit 14A is? 8 A 9 employees for the name Manuel Peña. This exhibit is a summary of TECS searches by DHS-OIG And records were provided 10 by TECS to cover a time period of January of 2010 through 11 August 16th, 2012. 12 Q 13 the TECS records itself. 14 provided records of TECS checks for the period that you just 15 described, January 1, 2010, to August 16, 2012? 16 A Yes. 17 Q And just at a very broad level, what do those TECS records 18 reflect? 19 A 20 and other agencies. 21 Q 22 from these Manuel Peña ones, what do all those TECS records 23 reflect? 24 A They reflect searches by DHS employees. 25 Q Have you had an opportunity to review those TECS records? Now, let's -- apart from this exhibit, let's just talk about During this investigation, was the FBI They reflect all searches for Manuel Peña, including DHS-OIG But the -- all the TECS records provided to the FBI, apart What are they? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 90 of 214 990 1 A Yes, I have. 2 Q And so the jury understands what we mean by review, the TECS 3 records, again apart from the Manuel Peña ones, but all the TECS 4 records provided to the FBI -- I'm sorry. 5 those TECS records, by the way? 6 A 7 Security. 8 Q All those TECS records, are they voluminous? 9 A Yes, they are. 10 Q How voluminous are we talking here? 11 A Many, many Excel spreadsheets of names. 12 Q Are we talking about more pages than we care to print and 13 bring into court? 14 A Yes. 15 Q Thousands of pages? 16 A Lot of pages. 17 Q So when you say you reviewed those records, how did you go 18 about reviewing them? 19 A 20 Excel spreadsheet to see which DHS-OIG employees searched the 21 name Manuel Peña. 22 Q 23 allow you to filter out by the subject of the search, Manuel 24 Peña? 25 A Where did the FBI get Those were obtained from the Department of Homeland It was an Excel spreadsheet, so I was able to filter that All right. So did those Excel spreadsheets essentially That's correct. Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 91 of 214 991 1 Q Is that what you did to create this exhibit, Government's 2 Exhibit 14A that's up on the screen? 3 A Yes. 4 Q When you went about doing that search of the TECS records, 5 what did you find? 6 A 7 Manuel Peña was on 6/7 of 2011 by Kristofor Healey. 8 Q When was the last search that you found? 9 A The last search was performed by Robert Vargas on I found that the first search performed by DHS-OIG for 10 September 1st, 2011. 11 Q 12 here on 6/20/2011 below Robert Vargas. 13 A Correct. 14 Q So that's actually before September 1, 2011? 15 A Yes. 16 Q So this particular chart that you've created is ordered by 17 the person who ran the search; is that right? 18 A Person and date, yes. 19 Q But it reflects all the searches within the TECS history for 20 Manuel Peña by DHS-OIG employees? 21 A 22 August 16th of 2012. 23 Q 24 were there any -- was there any record of any search by any 25 DHS-OIG employee prior to Kristofor Healey on June 7, 2011, for Is there -- I see that there is an additional search listed Yes, for the time period January 1st of 2010 through So we're clear, within the TECS records that you searched, Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 92 of 214 992 1 Manuel Peña? 2 A No. 3 Q Now, have you had an opportunity to review the TECS records 4 actually contained within the official case file? 5 A 6 file. 7 Q 8 instances, like printouts from TECS, like TECS reports 9 containing the information described in the MOA? Yes. I attempted to locate TECS records within the case And within the official case files, are there, in some 10 A Yes. 11 Q And can you just describe for the jury kind of briefly what 12 that looks like? 13 A 14 language in all capital letters, kind of a light gray text, and 15 it goes through. 16 searched, it has a date at the top, it has the person searching 17 for, whatever type of record it might be. 18 Q 19 you could find any hard copy printout like that dated for 20 sometime in March of 2010? 21 A I did. 22 Q Did you find one? 23 A I did not. 24 Q Did you find any TECS search, hard copy TECS search other 25 than perhaps any of the ones that were run between June 7, 2011, It's usually a several page printout, and it contains Whatever particular record that person And did you look through the Manny Peña case file to see if Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 93 of 214 993 1 and September 1, 2011, by Healey or Vargas? 2 A No, I did not. 3 Q And I would just like to point your attention to TECS search 4 by Robert Vargas on September 1, 2011. 5 A Yes. 6 Q And I'm now posing to the jury what's already been admitted 7 and there's been testimony about Government's Exhibit 1A. 8 Agent Sirles, obviously this is an email that you were not 9 involved in; is that right? Do you see that one? And, 10 A That's correct. 11 Q There's been testimony in court about this email already? 12 A Yes. 13 Q I just want you to point out for the jury down here at the 14 bottom the email that's been admitted into evidence from Robert 15 Vargas to Gene Pedraza attaching some draft MOAs. 16 you could remind the jury what date that email was sent on. 17 A 18 was September 1st, 2011. 19 Q The date that Robert Vargas sent that email to Gene Pedraza Thank you. All right. 20 And just if Agent Sirles, I'd like to now talk about another 21 case file. I'm holding up what has been admitted into evidence 22 as Government's Exhibit No. 12. 23 in a case called the Jonathan LNU case, case file 315. 24 seen this case file before? 25 A Yes, I have. This is the official case file Have you Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 94 of 214 994 1 Q Have you had an opportunity to review Government's 2 Exhibit No. 12? 3 A Yes, I have. 4 Q First of all, through your investigation do you know what 5 LNU, L-N-U stands for? 6 A 7 the person's last name. 8 commonly referred to as LNU. 9 Q So is this the Jonathan last name unknown file essentially? 10 A That's correct. 11 Q Now, based on your review of this case file, were you able 12 to determine whether it was an open criminal investigation as of 13 the time of the inspection on or about September 12 or 14 September 13, 2011? 15 A Yes, it was. 16 Q Was it an open criminal investigation? 17 A Yes. 18 Q Who was assigned to that criminal investigation based on 19 your review of the case file? 20 A Marco Rodriguez. 21 Q Did you also have an opportunity to review MOAs and other 22 records contained within this case file, Government's 23 Exhibit 12? 24 A I did. 25 Q Did you review the entire file? Yes. That's common in law enforcement when you don't know It stands for last name unknown. It's Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 95 of 214 995 1 A Yes. 2 Q Are you able to tell the jury, based on your review of that 3 file, just generally what the criminal allegations in the 4 Jonathan last name unknown case were? 5 A 6 allegations of a corrupt Customs and Border Protection officer 7 regarding introduction of narcotics and undocumented 8 individuals. 9 Q The Jonathan last name unknown case was regarding All right. Now, I would like to put up for you what has 10 been admitted into evidence as Government's Exhibit 12A, which 11 is a final MOA contained within case file 315. 12 can -- first of all, Agent Sirles, have you reviewed this 13 memorandum of activity before? 14 A Yes, I have. 15 Q All right. 16 investigative activity is recorded within this MOA? 17 A 18 allegations. 19 November 14th of 2010, Marco Rodriguez located records 20 pertaining to Aurelio Gomez within the National Crime 21 Information Center. 22 Q 23 Center? 24 A It's a database that contains criminal history. 25 Q Is that sometimes referred to as NCIC? Yes. Let me see if I And are you able to tell the jury what The first paragraph is again a summary of the And in the second paragraph, it indicates that on Now, first of all, what is the National Crime Information Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 96 of 214 996 1 A Yes. 2 Q Is information from the NCIC database available within TECS? 3 A Yes, it is. 4 Q Based on your review of the -- just for example, 5 Government's Exhibit 12, the Jonathan LNU case file, have you 6 seen TECS reports containing NCIC information? 7 A Yes, I have. 8 Q Just yes or no. 9 actually, I'm sorry. Did you conduct any investigation -- oh, One or two other questions. Let's just go ahead and move to the signature block here. 10 11 And can you just -- first of all, I'm pointing out a signature 12 here on the bottom left-hand corner of Government's Exhibit 12A. 13 Based on your review of the case file and your investigation, 14 are you able to tell the jury whose signature that is? 15 A That signature is for Marco Rodriguez. 16 Q All right. 17 A It's a typed date of November 14th, 2010. 18 Q All right. 19 corner. 20 A Gene Pedraza. 21 Q And is there a typewritten date there as well? 22 A Yes, a typewritten date of November 14th, 2010. 23 Q Now, Agent Sirles, much like with the other case file, just 24 yes or no, did you conduct any investigation to determine 25 whether any records check was conducted for NCIC information And what -- what date is supplied there? And I also -- now moving to the right-hand Whose signature is that? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 97 of 214 997 1 within TECS on November 14, 2010? 2 A Yes. 3 Q I'm going to show you Government's Exhibit 14B. 4 tell the jury what Government's Exhibit 14B is? 5 A 6 Aurelio Gomez between the time period January of 2010 through 7 August 16th, 2012. 8 Q Did you prepare Government's Exhibit 14B? 9 A I did. 10 Q How did you go about preparing it? 11 A I reviewed TECS searches conducted for Aurelio Gomez and 12 limit those to ones performed by Marco Rodriguez. 13 Q 14 when you testified about the records check that you backed up in 15 Government's Exhibit 1C? 16 A That's correct. 17 Q All right. 18 records reveal? 19 A 20 represented in the MOA. 21 Q 22 search? 23 A 3/14/2011. 24 Q And what is the last day? 25 A 9/12/2011. Can you This chart represents TECS searches by Marco Rodriguez for Did you use essentially the same technique that you used What did your investigation of those TECS It revealed there was no search conducted on the date And what is the first date that Marco Rodriguez ran a TECS Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 98 of 214 998 1 Q Based on your investigation, are you familiar -- and just 2 from being here in the testimony in court, are you familiar of 3 the approximate dates of the inspection in the McAllen field 4 office? 5 A Yes. 6 Q Were those dates sometime between about September 12, 2011, 7 and September 16, 2011? 8 A That's correct. 9 Q Now, Agent Sirles, in addition to running this or searching 10 these TECS records, did you examine the case file to see whether 11 there are any printouts of TECS records or other records checks 12 for Aurelio Gomez on or about November 14, 2010? 13 A Yes. 14 Q Did you find any printouts of such a records check? 15 A Yes. 16 Q What did you find? 17 A I found the NCIC criminal history report printed out through 18 TECS for Aurelio Gomez. 19 Q For what date? 20 A 9/12/2011. 21 Q Is that the one that is reported here on your -- or one of 22 the ones reported here on the chart that you created? 23 A Yes. 24 Q Did you find such a hard copy printout for November -- I've 25 now forgotten the date. Is it November 14th, 2010? Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 99 of 214 999 1 A I did not locate a report. 2 Q I'd now like to show you another part of Government's 3 Exhibit 12A. 4 file? 5 A Yes. 6 Q Now, what does this -- and when I say the case file, I mean 7 case file 315. 8 A That's correct. 9 Q Same case file we're talking about? 10 A Yes. 11 Q What does this MOA reflect? 12 A The first paragraph is again a summary. 13 paragraph, it indicates that DHS-OIG located records pertaining 14 to Aurelio Gomez, specifically a report by ICE HSI. 15 Q 16 within the text of it indicating what date that search was run? 17 A No, there is not. 18 Q I want to move down to the signature date. 19 signature on the bottom left-hand corner? 20 A Marco Rodriguez. 21 Q What date is reflected in the signature box? 22 A A typewritten date of September 16th, 2010. 23 Q And what about the other signature block? 24 A Gene Pedraza, September 16th, 2010. 25 Q I'm putting back up Government's Exhibit 14B. Is this another MOA contained within the case In the second Now, is there any date within the memorandum of activity Again, whose Did you 1000 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 100 of 214 1 conduct an investigation through the TECS records that you had 2 available to you to determine whether any TECS check had been 3 run for Aurelio Gomez on or about September 16, 2010? 4 A Yes, I did. 5 Q And was that essentially the same -- literally the exact 6 same search that you conducted to investigate whether a TECS 7 search had been done for November of 2010? 8 A That's correct. 9 Q And so Government's Exhibit 14B, is that the result of your 10 searches? 11 A Yes. 12 Q Did you find any TECS searches run for Aurelio Gomez on 13 September 16th, 2010? 14 A No. 15 Q Did you find any by Marco Rodriguez for Aurelio Gomez in the 16 year 2010 at all? 17 A No. 18 Q Again, did you search the case file to see if there are any 19 TECS printouts dated September 16, 2010? 20 A Yes. 21 Q Were there any? 22 A Yes. 23 Q What did you find? 24 A I found the report that was referenced in the MOA. 25 run through TECS with a date of 3/14 of 2011. It was 1001 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 101 of 214 1 Q Is that one of the searches here reflected on your report? 2 A Yes, it is. 3 Q And just so we're clear, though, did you find a TECS report 4 containing that information dated September 16, 2010? 5 A No, I did not. 6 Q All right. 7 now holding up what has been admitted into evidence as 8 Government's Exhibit 13. 9 No. 1086. Now I'd like to turn to another case file. I'm This is a case file labeled unknown, Is this one of the case files that you obtained from 10 DHS-OIG? 11 A Yes. 12 Q Have you had an opportunity to review this case file? 13 A Yes. 14 Q From your review of this case file, were you able to 15 determine whether this was an open criminal investigation at or 16 about the time of the McAllen field office inspection in 17 September of 2011? 18 A Yes. 19 Q Was it an open case file? 20 A Yes. 21 Q Were you able to determine from your review of this case 22 file who was assigned to it? 23 A Yes. 24 Q What did you determine? 25 A It was assigned to Marco Rodriguez. 1002 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 102 of 214 1 Q Based on your review of the case file, can you just 2 familiarize the jury generally with what the criminal 3 allegations contained in this investigative file are or that are 4 the subject of this investigative file? 5 A 6 facilitating the transportation of pregnant females to the U.S. 7 Q 8 memoranda of activity contained within that case file? 9 A Yes. 10 Q I'm going to show you what has already been admitted into 11 evidence as Government's Exhibit 13A, which is a collection of 12 memoranda of activity contained within that case file, this 13 being one specific memorandum of activity. The allegations were that a corrupt border official was All right. Have you had an opportunity to review all the Agent Sirles, have you had an opportunity to review this 14 15 memorandum of activity before? 16 A Yes. 17 Q Can you just tell the jury based on the memorandum itself 18 what kind of investigative activity it reports? 19 A 20 allegations. 21 November 3rd of 2010, Marco Rodriguez searched the TECS database 22 for records pertaining to Maria Guerra Irrecheta. 23 Q 24 tell the jury about the two signature blocks at the bottom of 25 the page? Yes. The first paragraph is again a summary of the In the second paragraph, it references that on And if we could just scroll down here. Could you please 1003 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 103 of 214 1 A The signature block on the left for Marco Rodriguez is -- 2 has a typewritten date of November 3rd, 2010. 3 Gene Pedraza, signature date is typewritten, November 3rd, 2010. 4 Q 5 about, did you conduct any investigation within the TECS records 6 that were supplied to you by DHS concerning whether any TECS 7 checks were run for Maria Guerra Irrecheta on or about 8 November 3, 2010? 9 A Yes. 10 Q I'm putting up now Government's Exhibit 14C. 11 best I can do with that one. On the right, Agent Sirles, as with the other two case files we've talked That's the Agent Sirles, what is Government's Exhibit 14C? 12 13 A This exhibit shows TECS searches by Marco Rodriguez for 14 Maria Guerra Irrecheta and variations on that name from January 15 of 2010 until August 16th of 2012. 16 Q 17 by Marco Rodriguez for Maria Guerra Irrecheta on or about 18 November 3, 2010? 19 A No, I was not. 20 Q Were you able to find some records of TECS checks having 21 been run by Marco Rodriguez for that name? 22 A Yes. 23 Q When was the first -- what was the first date that you found 24 he had run that name? 25 A Were you able to find any record of a TECS check being run The first date was September 1st of 2011. 1004 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 104 of 214 1 Q And based on -- and what was the last date on which he ran 2 that name? 3 A The last date was September 7th, 2011. 4 Q And that's on page 3 of Government's Exhibit 14C; is that 5 right? 6 A Does it have the page number at the bottom? 7 Q Thank you, Agent Sirles. 8 A Yes, that is page 3. 9 Q Now, Agent Sirles, so all of the searches run by Marco 10 Rodriguez according to the TECS records you reviewed were 11 between September 1 and September 7, 2011; is that right? 12 A That's correct. 13 Q Now, Agent Sirles, when preparing this, were you able to 14 search by Marco Rodriguez's name in particular? 15 A Yes. 16 Q So this contains reports of searches not just for Maria 17 Guerra Irrecheta, but also Irrecheta, Maria Guerra, variations 18 of the name; is that right? 19 A That's correct. 20 Q Was there any record within the TECS database of Marco 21 Rodriguez running searches for any variation of that name at all 22 prior to September 1, 2011? 23 A No. 24 Q Were there any records of such searches in the year 2010 25 even? 1005 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 105 of 214 1 A No. 2 Q As with the other case files you reviewed, did you review 3 Government's Exhibit No. 13, the official case file in this 4 case, to see whether there are any hard copy printouts from 5 TECS? 6 A Yes. 7 Q Did you find any hard copy printouts for the period 8 November 3, 2010, for Maria Guerra Irrecheta? 9 A No, I did not. 10 Q Did you find any indication of those TECS searches having 11 been run in November 3rd, 2010? 12 A No, I did not. 13 Q Let's turn our attention, if we could, to another report 14 contained within case file 1086. 15 been admitted into evidence as Government's Exhibit 13A. 16 that a memorandum of activity contained within case file 1086? 17 A Yes, it is. 18 Q Can you please tell the jury what investigative activity is 19 reported within that memorandum of activity? 20 A 21 paragraph indicates that on February 1st of 2011, DHS-OIG 22 conducted a registration check of a vehicle with the license 23 plate NLM162 through TECS. 24 Q 25 activity associated with that TECS check? Yes. I'm going to show you what has The first paragraph is again a summary. Is The second Is there any name within the text of this memorandum of 1006 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 106 of 214 1 A No, there's not. 2 Q Now, can you go ahead and please familiarize the jury with 3 the signature block like you have with the other MOAs? 4 A 5 typewritten date February 2nd, 2011; and on the right, Gene 6 Pedraza, February 2nd, 2011. 7 Q 8 you conduct an investigation through the TECS records you 9 obtained from DHS to determine whether Marco Rodriguez or any Yes. On the left portion is Marco Rodriguez with a As with the other reports that we've been discussing, did 10 other DHS-OIG employee ran a TECS search on or about February 1, 11 2011? 12 A Yes. 13 Q I'm showing you now Government's Exhibit 14D. 14 Government's Exhibit 14D? 15 A 16 No. NLM162 for the time period January 2010 through August 16th, 17 2012. 18 Q What did you find when running that search? 19 A I found searches by DHS-OIG employees Cynthia Hinojosa and 20 Marco Rodriguez. 21 Q 22 had been run? 23 A July 6th, 2010. 24 Q And what is the last date? 25 A November 10th, 2011. What is These are TECS searches by DHS-OIG for Texas license plate What is the first date for which you found a records check 1007 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 107 of 214 1 Q So now both of Cynthia Hinojosa's checks were run in 2 July 2010; is that right? 3 A That's correct. 4 Q When was Marco Rodriguez's first search? 5 A September 7th, 2011. 6 Q When was his last search? 7 A November 10th, 2011. 8 Q Did you find any record of any DHS employee running a TECS 9 search in February 2011? 10 A No, I did not. 11 Q Did you find a record of any other DHS employee running a 12 TECS search in 2011 other than Marco Rodriguez? 13 A No, I did not. 14 Q And the first such search was on November 7, 2011; is that 15 right? 16 A That's correct. 17 Q Could you please remind the jury as to the approximate date 18 that the inspection began? 19 A The inspection began approximately on 9/12 of 2011. 20 Q And again, did you search this case file, Government's 21 Exhibit No. 13, to see whether there were any TECS printouts 22 printed in or around February of 2011? 23 A Yes. 24 Q Were there any? 25 A Not for that date. I found one for that vehicle dated 1008 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 108 of 214 1 November 10th, 2011. 2 Q 3 database review that you conducted? 4 A Yes. 5 Q And those are again reported on Government's Exhibit 14D; is 6 that right? 7 A Yes. 8 Q Agent Sirles, I'd like to now change topics. 9 court yesterday, were you not? And is that one of the dates that you found in the TECS You were in 10 A Yes. 11 Q And yesterday while you were in court, you were here when 12 the government played Exhibit No. 21 that was a surveillance 13 video from the Department of Homeland Security-Office of 14 Inspector General McAllen field office; is that right? 15 A That's correct. 16 Q How did the FBI come into possession of that videotape? 17 A It was requested that Department of Homeland Security-Office 18 of Inspector General provide that videotape, and specifically 19 David Green provided that to the FBI. 20 Q 21 Department of Homeland Security-Office of Inspector General for 22 the videotape? 23 A Yes. 24 Q Was one of the dates asked for by the FBI January 25, 2012? 25 A Yes. Did the FBI request any specific date or dates from the 1009 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 109 of 214 1 Q Now, just on the face of the tape itself, just from looking 2 at the pictures and nothing else, is it self evident based on 3 the pictures or anything else as to what date the surveillance 4 video that we watched in court yesterday, Government Exhibit 21, 5 what date it is? 6 A Yes. 7 Q Just from looking at the pictures itself and nothing else? 8 A Not from just looking at the pictures. 9 Q Okay. You're correct. Now, did you conduct any research to attempt to 10 determine what date Government's Exhibit 21 is? 11 A Yes, I did. 12 Q At just a high level, what kind of research or investigation 13 did you conduct to determine that? 14 A 15 compared them against the video to match up certain dates and 16 times. 17 Q 18 ahead and show what has been admitted into evidence and was 19 shown in court yesterday that's Government's Exhibit -- or 20 excuse me, defense exhibit. 21 the key card entries that we're discussing? 22 A Yes. 23 Q All right. 24 entirety of Defense Exhibit No. 9 that is 36 pages? 25 A I reviewed the key card entries that were shown earlier and And specifically when you say key card entries, I want to go Defense Exhibit No. 9. Are these Have you had an opportunity to review the Yes, I have. 1010 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 110 of 214 1 Q In particular, did you review the number of key card entries 2 for Cynthia Hinojosa on January 25, 2012? 3 A Yes. 4 Q How many entries into the key card access room did you count 5 on Defense Exhibit No. 9? 6 A 20. 7 Q That's 20 on January 25, 2012? 8 A Yes. 9 Q Did you count the number of times that Ms. Hinojosa entered 10 on other days contained within Defense Exhibit No. 9? 11 A Yes. 12 Q And these contain records of her entries from -- on page 1, 13 August 1, 2011, through June 1, 2012; is that right? 14 A 15 range at the top. 16 Q That's right. I believe the first page also states the date Thank you, Agent Sirles. Between August 1, 2011, and June 1, 2012, or June 4, 2012, 17 18 according to the top record, was there any other day in which 19 Cynthia Hinojosa entered the case file room, according to these 20 records, 20 times? 21 A No. 22 Q Was there any other day in which she entered the case file 23 room 19 times? 24 A No. 25 Q That's the only day contained within these records? 1011 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 111 of 214 1 A That's correct. 2 Q Using these records, how did you go about, again at a high 3 level, investigating whether Government's Exhibit 21 is, in 4 fact, January 25, 2012? 5 A 6 Ms. Hinojosa's entry times and the time lapse in between those 7 entry times against the card log-in sheet to compare if those 8 intervals were the same. 9 Q I was able to compare the intervals from the video of Based on your review, were those interviews -- intervals 10 approximately the same? 11 A Yes, they were. 12 Q Based on your review of those records and your review of the 13 videotape, were you able to form an opinion as to what date the 14 videotape is? 15 A Yes. 16 Q What is your opinion on that? 17 A It is January 25th, 2012. 18 Q All right. 19 reached that opinion. Could we go ahead, Mr. Starnes, and queue up Government's 20 21 Now I want to go through and discuss why you Exhibit No. 21? All right. 22 Now, Agent Sirles, could you just describe for 23 the jury how it is you kept time on this, how you counted the 24 intervals? 25 A There was a running clock at the bottom of the screen as I 1012 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 112 of 214 1 watched it. And as I saw Ms. Hinojosa scan her badge and enter 2 the case file room, I would pause the tape, note the time, then 3 click play again, watch her enter the case file room and then 4 leave. 5 entered the case file room, I stopped it again and wrote that 6 time down as well. 7 Q 8 time in order to determine the time interval between the two 9 entries? And then as she entered again and scanned her badge and And then did you subtract that first time from the second 10 A Yes, I did. 11 Q Did you use a regular convention for determining when she 12 entered into the case file room while you were watching the 13 tape? 14 A 15 I could see her entering the case file room. 16 Q 17 is that right? 18 A That's correct. 19 Q Was this a somewhat time intensive process? 20 A Yes, it was. 21 Q How long did it take you to do this? 22 A Hours. 23 Q And did you review all the available tape for January 25 -- 24 or excuse me, for Government's Exhibit 21? 25 A I tried my best to pause it after she scanned her badge and Now, you were doing this just literally with a mouse click; Yes, I did. 1013 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 113 of 214 1 Q All right. 2 clicking with your finger; is that right? 3 A That's correct. 4 Q So that's a human convention; is that right? 5 A That's correct. 6 Q You didn't have any automatic way of stopping the tape every 7 time she entered the case file room; is that right? 8 A 9 her entry into the room, a few seconds could have elapsed. No. Now, again, as you did this, you were mouse In addition, if she scanned her badge and then delayed I 10 stopped the clock when I could see her entering the room after 11 scanning her badge. 12 Q 13 Exhibit 21, and let's play some of the time here. Now, can we just go ahead now and queue up Government's 14 And what I'd like you to do, Agent Sirles, if you would, is 15 simply walk us through how you did this while this is up on the 16 screen. 17 (Tape playing.) 18 MR. COONEY: Actually can you stop it right there? 19 BY MR. COONEY: 20 Q 21 on talking us through that, but you've testified before you've 22 been to the McAllen field office; is that right? 23 A That's correct. 24 Q Are you familiar with the area of this videotape? 25 A Yes, I am. Agent Sirles, I'm sorry to interrupt my own question there 1014 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 114 of 214 1 Q Are you able just to describe for the jury then what we're 2 looking at here? 3 A 4 Cynthia Hinojosa is walking towards the conference room. 5 the hallway going back, the case file room would be on the 6 right. 7 Q 8 the office that the defendant occupied when he was the special 9 agent in charge of the McAllen field office? That is a hallway leading towards the conference room where And As part of your investigation, have you been able to go to 10 A Yes, I did. 11 Q Are you able to describe for the jury generally where that 12 is on this picture? 13 A 14 but further down. 15 Q 16 Mr. Starnes. It is one of the doors on the left. All right. Not the immediate one, Why don't you go ahead and keep going, 17 (Tape playing.) 18 MR. COONEY: And actually could you pause it one more 19 time? 20 BY MR. COONEY: 21 Q 22 two-and-a-half minute portion of all of the videotape available 23 that you reviewed to determine whether it was January 25, 2012; 24 is that right? 25 A Just so we're clear for the jury, this is just a That's correct. 1015 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 115 of 214 1 Q All right. So this is not necessarily the first entry into 2 the case file room on the particular tape that we're looking at; 3 is that right? 4 A That's right. 5 Q And it's not necessarily the last one, correct? 6 A That's right. 7 Q This is just one sometime within there? 8 A Correct. 9 Q But I assume when you were reviewing this surveillance tape 10 based on the intervals and whatnot, you were able to determine 11 generally when a day started and when a day ended for a tape; is 12 that right? 13 A That's correct. 14 Q So what you were looking at was one day in time? 15 A That's correct. 16 Q All right. Why don't you keep going, Mr. Starnes. 17 (Tape playing.) 18 MR. COONEY: Can you stop the tape? 19 BY MR. COONEY 20 Q 21 stopped it at 22 seconds. 22 Mr. Pedraza, depicted in camera angle 2; is that right? 23 A Yes. 24 Q Based on your familiarity with the McAllen field office, are 25 you able to tell the jury approximately where he came from in Based on your review of the tape -- and I should say we And that is the defendant, 1016 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 116 of 214 1 the tape? 2 A MR. COONEY: 3 4 From his office area. All right. Why don't you go ahead, Mr. Starnes. 5 (Tape playing.) 6 MR. COONEY: Can you pause it, please? 7 BY MR. COONEY 8 Q I see the tape just went dark right now. 9 A That's correct. 10 Q Did you see that routinely when you were reviewing this 11 videotape? 12 A That's correct. 13 Q What is your understanding as to why that occurred? 14 A When there's no motion detected by the cameras, it goes into 15 a dormant state. 16 Q 17 that you were reviewing? 18 A Yes, I did. 19 Q What happened when someone entered into an area when the 20 camera had otherwise been dormant, though? 21 A It would suddenly get brighter. 22 Q Why don't we keep going. And did you observe dormant states throughout the period 23 (Tape playing.) 24 MR. COONEY: 25 BY MR. COONEY Can you stop it right there, please. 1017 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 117 of 214 1 Q We stopped it at now a minute and 20. 2 A Yes. 3 Q Is that what you're describing when someone comes into a 4 dormant area? 5 A Yes. 6 Q And I see on camera angle 2, Ms. Hinojosa just walked back 7 into that hallway; is that right? 8 A 10 The motion is detected, and the camera gets brighter. That's correct. MR. COONEY: 9 It just got bright? All right. Why don't you keep going, Mr. Starnes. MR. EASTEPP: 11 Your Honor, to kind of speed it up at this 12 moment, could I have her -- have the agent ask where she saw 13 Ms. Hinojosa come from as she's walking down the hall? MR. COONEY: 14 15 I think Mr. Eastepp is going to get an opportunity to cross-examine her, so -- 16 MR. EASTEPP: 17 THE COURT: 18 MR. COONEY: Just trying to speed things up. All right. And actually, can you go ahead and pause 19 it, please, Mr. Starnes? 20 BY MR. COONEY: 21 Q 22 could, please, where it is that Ms. Hinojosa came from. 23 A 24 Pedraza's office area. 25 end of that hallway. Go ahead, Agent Sirles. Go ahead and tell the jury if you It appears she came from either her office area or Gene Their offices were close together at the 1018 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 118 of 214 1 MR. EASTEPP: 2 MR. COONEY: 3 (Tape playing.) THE WITNESS: 4 Thank you. Thank you. All right. Go ahead, Mr. Starnes. At that moment I would have 5 paused the tape when I was conducting my review, and I would 6 have noted the time of her entering. 7 BY MR. COONEY: 8 Q 9 what you were doing to try and figure out these time intervals; And so now -- so essentially what we just did is exactly 10 is that right? 11 A That's correct. 12 Q All right. 13 camera angle No. 5. 14 that right? 15 A That's correct. 16 Q And is that consistent with what you reviewed about the 17 camera if there was no motion there being dormant? 18 A That's correct. 19 Q But then when motion came in, it would light up? 20 A That's correct. 21 Q So what we just saw here, for example, with camera angle 22 No. 2 being lit up, but camera No. 5 not being lit up, did you 23 see that frequently throughout your review of the video? 24 A Yes, I did. 25 Q But if somebody made a right-hand turn into that file room, Now, I do want to talk about just real quickly That just lit up and came into view; is 1019 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 119 of 214 1 would camera angle No. 5 light up? 2 A Yes. 3 Q Why don't you go ahead and keep going, Mr. Starnes. 4 you. 5 (Tape playing.) 6 MR. COONEY: Thank Go ahead and stop the tape, please. 7 BY MR. COONEY 8 Q 9 yesterday, and we just saw the defendant, Mr. Pedraza, enter the Just a quick question. There was testimony about this 10 case file room; is that right? 11 A Yes. 12 Q Okay. 13 And these are the records of Gene Pedraza. I'm just going to put back up Defense Exhibit No. 9. Oh, I'm sorry. And you can see -- 14 MR. COONEY: Ms. Sustaeta, can you 15 switch to the ELMO? 16 BY MR. COONEY 17 Q 18 page 24 for him entering the case file room on August 25, 2011; 19 is that right? 20 A That's correct. 21 Q And now turning to the next page, there's a record of 22 additional entries for him on August 26th, 2011, to November 10, 23 2011. 24 A Yes. 25 Q All right. My fault for not asking. Thank you. And I see there's a record here starting at the bottom of Do you see those entries? Now, there's not -- there's no record entry for 1020 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 120 of 214 1 him on January 25, 2012; is that right? 2 A That's correct. 3 Q Based on what we just saw, does that do anything to dissuade 4 you of your opinion that the date that we're looking at is 5 January 25, 2012? 6 A No, it does not. 7 Q Why not? 8 A Because he did not scan his badge to enter the room. 9 walked in behind Ms. Hinojosa. 10 Q 11 caught the door behind her? 12 A Yes. 13 Q All right. Based on your review of the tape, did it appear that he MR. COONEY: 14 He Why don't we -- if we could switch back to 15 the computer, please. 16 watching here. 17 (Tape playing.) 18 MR. COONEY: Thank you very much. And we'll keep Can we stop the tape, please? 19 And now why don't you go ahead and keep going, Mr. Starnes. 20 (Tape playing.) 21 MR. COONEY: Stop the tape, please. 22 BY MR. COONEY 23 Q 24 a few seconds before that as well. 25 tape to count your intervals at a moment like this when All right. We stopped the tape at 232. We stopped the tape Would you have stopped the 1021 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 121 of 214 1 Ms. Hinojosa walked out of the case file room? 2 A No. 3 Q Why not? 4 A You only badge to enter the room. 5 record of when you leave the room. 6 Q There's no electronic Thank you. MR. COONEY: 7 8 down. 9 BY MR. COONEY All right. You can go ahead and take that Can we switch back to the ELMO, please? All right. Thank you. 10 Q I'm going to show you what's been marked as 11 Government's Exhibit No. 22 and admitted into evidence. 12 just tell the jury at a high level what Government's 13 Exhibit No. 22 is? 14 A 15 on the video what I did, stopping the tape and taking note of 16 those time intervals. 17 Q 18 would, Agent Sirles, just talk the jury through this exhibit. 19 And now, Agent Sirles, I'm pointing here to the first Can you This is a chart explaining in numbers what I just showed you All right. Now, what I'd like to do is have you, if you 20 column, and it's titled "File access room," and it's numbered 1 21 through 20. 22 23 24 25 And actually now that we've done that, let me zoom in a little, just cover this text. What does this 1 through 20, what does that number represent? 1022 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 122 of 214 1 A That indicates the number of times that room was accessed by 2 Ms. Hinojosa. 3 Q According to the key card entries? 4 A According to the key card entries, yes. 5 Q On what date? 6 A January 25th of 2012. 7 Q So that's the 20 times you testified to before; is that 8 right? 9 A Yes. 10 Q All right. 11 access with key card on 1/25/12 stated on Defense Exhibit 12 No. 9." 13 No. 2? 14 A 15 entries on that previous sheet we looked at for January 25th, 16 2012. 17 Q 18 Exhibit No. 9 that we were looking at earlier; is that right? 19 A Correct, for that one day. 20 Q January 25, 2012? 21 A Yes. 22 Q Now, let's go ahead and move to the third column, which is 23 labeled "Time between file room access with key card in 24 minutes." 25 reflects? Now, column No. 2 is labeled "Hinojosa file room Can you describe for the jury what is here in column Those numbers or times are taken directly from the key card So those are just a restatement of the times on Defense Can you describe for the jury what column No. 2 1023 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 123 of 214 1 A Column No. 2 shows the time span in between each individual 2 room entry. 3 Q 4 that measured? 5 A 6 substract 747, the first entry from that, and you get a time 7 lapse of three minutes and 24 seconds, is the time difference 8 between the first time she entered the room and then the second 9 time she entered the room. And is that measured between -- well, actually, just how is For instance, the second entry on there of 7:50:27, 10 Q All right. And so we're clear too, in column No. 2, when it 11 says 7:47:03, is that an actual time of day recorded on Defense 12 Exhibit No. 9? 13 A Yes, it is. 14 Q So that would be 7:47:03 a.m.; is that right? 15 A That's correct. 16 Q That would be the first time she entered that day? 17 A Yes. 18 Q And then the last time she entered that day was 19 4:23:19 seconds p.m.; is that right? 20 A That's correct. 21 Q So these numbers in column 2 are essentially AMs and PMs? 22 A Yes. 23 Q But the numbers in column 3 -- or excuse -- yes, column 3, 24 these are minutes, the intervals between each of those entries; 25 is that right? 1024 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 124 of 214 1 A Correct. 2 Q Now, if you could just tell the jury just quite literally 3 how it is you calculated the time intervals. 4 calculator or something like that? 5 A 6 subtraction. 7 Q 8 have those calculations in front of you? 9 A No, I did not. 10 Q When you reviewed the videotape, were you literally just 11 watching and then clicking to stop the tape every time you saw 12 Ms. Hinojosa enter the file room on Government's Exhibit 21? 13 A Yes. 14 Q All right. 15 No. 4. 16 entrances seen on Government Exhibit No. 21 in minutes." 17 does column No. 4 reflect? 18 A 19 watched the tape and paused the video in between each entry. 20 Q 21 all right, and work backwards. 22 number I'm pointing to, 000659 in column No. 4, line 20 of 23 Government's Exhibit 22 is? 24 A 25 Cynthia Hinojosa entered that day to the time just previous to Did you use a There's a time and date calculator that facilitates that All right. And when you reviewed the videotape, did you Let's just start from the bottom here. Column And column No. 4 is labeled "Time between file room What It represents intervals, the ones that I measured when I And so I want to go ahead and start from line 20 right here, Yes. Can you tell the jury what this That is my measurement comparing the last time that 1025 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 125 of 214 1 that. 2 Q 3 represents one click of your mouse? 4 A Two clicks. 5 Q How so? 6 A I click the last time she entered the room. 7 previous to that also had a corresponding time as the running 8 clock ran across the bottom on that videotape. 9 difference of those two figures to arrive at six minutes and 59 All right. So I take it this represents, this 000659 Then the time And I took the 10 seconds. 11 Q 12 the case file room here at line 19 to the one at line 20; is 13 that right? 14 A That's correct. 15 Q All right. 16 A 6 minutes and 59 seconds. 17 Q Now, I see that the entry on line 20, based on just the 18 objective records, is seven minutes and one second; is that 19 right? 20 A That's correct. 21 Q Can you explain that two second difference? 22 A Human error. 23 Q Does that two second difference change your opinion at all 24 as to what date Government's Exhibit No. 21 is? 25 A So essentially 659 is the difference between an entry into No. And what number is that for line 20? 1026 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 126 of 214 1 Q Now, let's just move to No. 19. That is also another time 2 interval; is that right? 3 A That's correct. 4 Q And that's one between line 18 and line 19; is that right? 5 A That's correct. 6 Q What time interval is that? 7 A 6 minutes and 48 seconds. 8 Q And what time interval is in line 19 based on the objective 9 records? 10 A Also six minutes and 48 seconds. 11 Q So that one is dead on, exactly the same. 12 A That's correct. 13 Q Let's just go ahead and take another one here. 14 line 9. 15 entry, the one on line 8 directly above; is that right? 16 A That's correct. 17 Q And when you clicked after you saw the next entry, which 18 would have been the one labeled at line 9; is that right? 19 A That's correct. 20 Q All right. 21 A A difference of 27 minutes and 19 seconds. 22 Q And what did the objective records get? 23 A 27 minutes and 14 seconds. 24 Q And again, how do you account for the -- or what is the 25 difference between those two? Line 9, column 4. Let's take That represents you seeing one And what did you get based on your mouse click? 1027 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 127 of 214 1 A 5 seconds. 2 Q Five seconds. 3 A Human error. 4 the room exactly. 5 saw her enter the case file room. 6 Q 7 biggest time interval difference that you found? 8 A Yes. 9 Q So all of the ones that you measured that you were able to How do you account for that five seconds? She may have scanned her badge and not entered I generally clicked the mouse as soon as I Now, just reviewing this entire chart, is five seconds the 10 see a file access for were sometime between dead on, zero second 11 difference, and five seconds; is that right? 12 A That's correct. 13 Q Consistently throughout every file access that you saw on 14 Government's Exhibit No. 21; is that right? 15 A That's correct. 16 Q As compared to the objective records; is that right? 17 A Yes. 18 Q All right. 19 things on this exhibit. 20 I'm going back to the objective records, column 3, row No. 1. 21 It's empty. 22 A 23 before 1 to compare it to. 24 first time she entered the room on that particular day. 25 Q Now, I want you to explain just a few more I want to look in particular -- here Why is that row empty? That row is empty because there is no prior time entry That first entry represents the According to the objective records, right? 1028 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 128 of 214 1 A That's correct. 2 Q Okay. 3 entry and the second entry; is that right? 4 A Yes. 5 Q All right. 6 see in column 4 both line 2 and line 1 are blank; is that right? 7 A That's correct. 8 Q All right. 9 that represents your manual time calculation between line 2 and So again, line 2 is the difference between the first Now, I'm looking here now in column 4. And I So now just so we're clear, line 3, column 4, 10 line 3; is that right? 11 A Yes. 12 Q So why is line 2 blank? 13 A There were only 19 entries captured on the videotape that 14 particular day. 15 Q Right. 16 A Because there was no prior entry to compare it to. 17 Q All right. 18 whether the date that you looked at was January 25, 2012? 19 A No, it does not. 20 Q Why? 21 A Because the other time intervals for that day match so 22 closely, it could not be represented by any other day in the key 23 card entry system. 24 Q 25 objective key card access, one that happened, according to So why then is line 1 blank? Now, does that change your opinion at all as to Now, backing up, though, to line 1, which does represent an 1029 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 129 of 214 1 Defense Exhibit No. 9, at 7:47 a.m. and three seconds. Is there 2 any indication on that videotape, Government's Exhibit 21, of 3 that entry happening? 4 A 5 that someone was in there. 6 Q Okay. 7 A The light is on in the room. 8 standing outside the case file room. 9 Q She is not viewed going into the room, but there is evidence What evidence is that on the videotape? In addition, Ms. Hinojosa is When you say the light is on in the room, what room are you 10 talking about? 11 A The case file room. 12 Q Would that be camera 5 on Government's Exhibit 21 that we 13 have been looking at? 14 A Yes. 15 Q What is the significance of the fact that the light in the 16 room was on? 17 A 18 dormant. 19 Q 20 that you saw the light in the room remain on after someone left? 21 A Approximately eight minutes. 22 Q So it indicated that someone had been within that room 23 within that time period? 24 A That's correct. 25 Q And at the beginning of the tape that you looked at, It means that someone was in there; that the camera was not When you reviewed that videotape, how long was it typically 1030 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 130 of 214 1 Exhibit 21, Ms. Hinojosa is pictured in that hallway outside of 2 the room? 3 A That's correct. 4 Q All right. 5 Defense Exhibit No. 9, was there any other person who entered 6 the file room on January 25, 2012, at 7:47 in the morning other 7 than Ms. Hinojosa? 8 A No. 9 Q Was there anyone else who entered the case file room within Now, Agent Sirles, based on your review of 10 that time period, like within a minute or two of that time 11 period, on January 25, 2012? 12 A No. 13 Q And, Agent Sirles, back to where we started when I was 14 asking you about your overall review of these records. 15 there any other day where Cynthia Hinojosa entered the case file 16 room 20 times? 17 A No. 18 Q And was there any other day, any day at all, any day at all 19 within these records, that she entered 19 times? 20 A No. 21 Q And you counted 19 times on that tape; is that right? 22 A That's correct. 23 Q But there's no day in these records that show 19 times; is 24 that right? 25 A That's correct. Was 1031 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 131 of 214 1 Q 2 another entry; is that right? 3 A That's correct. 4 Q And is that why none of this dissuades you of your opinion 5 that the date of that video is January 25, 2012? 6 A That's correct. 7 Q How firm are you in that opinion? 8 A I believe that is the day. 9 MR. COONEY: THE COURT: 10 No further questions, Your Honor. Everybody okay? Anybody need a break? Go ahead, Mr. Eastepp. 11 MR. EASTEPP: 12 13 So to be one of the days on this record, there has to be Thank you, Judge. I don't think I'll be very long. CROSS-EXAMINATION 14 15 BY MR. EASTEPP 16 Q 17 just saw. 18 all that was about, correct? 19 A That's correct. 20 Q All right. 21 one, files being the other, you would have to agree that on the 22 20 entries, one of only three things could happen vis-a-vis the 23 room and swiping the card. 24 without a file. 25 with a file, right? Let's -- Special Agent Sirles, let's cover that issue we I mean, all of that was about establishing a date was But if we have two variables, Ms. Hinojosa being One, she enters and then leaves She enters and leaves with a file. She enters 1032 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 132 of 214 1 A Correct. 2 Q Okay. 3 those three things that occurred that day. 4 times she went in and left the files, times she went in and then 5 came back out without a file, or times she put a file back in 6 there. 7 A That's correct. 8 Q That's all I have on that issue. You agree with me that, in fact, there's a mix of That there were Now, going to these -- the various Government's Exhibit 14. 9 10 First going to 14A to refresh your memory. 11 it. 12 A Yes. 13 Q Correct? 14 case file. 15 A That's correct. 16 Q Because Kris Healey was, in fact, an agent of DHS-OIG, 17 correct? 18 A Yes. 19 Q He seems to have run multiple checks. 20 A Yes. 21 Q Do you know why an agent would run like on this date showing 22 he ran, one, two, three, four, five, six, seven, eight, nine, 23 ten checks on June 7th of 2011? 24 reason that would have occurred? 25 I'm sure you know These are the Manny Peña TECS checks. Clearly TECS checks had been run pursuant to this We agree with that? MR. COONEY: Objection. We agree with that? Is there an investigative That's two questions. Do you 1033 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 133 of 214 1 know why an agent would do it, or is there an investigative 2 reason. 3 BY MR. EASTEPP 4 Q Split them apart, please. 5 A I don't know why an agent would do that. 6 explained by the different types of searches being conducted 7 within the TECS system. 8 Q Meaning one could have been an NCIC check, correct? 9 A Correct. 10 Q One could have been a border crossing check, correct? 11 A Correct. 12 Q One could have been related to a passport, correct? 13 A Correct. 14 Q So on and so forth, just to speed it up, correct? 15 A Yes. 16 Q All right. 17 A Correct. 18 Q But you -- you really don't know exactly what happened with 19 these ten. 20 A That's correct. 21 Q And then, of course, we see that just a few days later, 13 22 days later, Mr. Vargas did four more, correct? 23 A Yes, on June 20th. 24 Q June 20th. 25 A Yes. Answer them separately. It's perhaps So point of that, nothing unusual about this? You just know ten were run by him. 1034 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 134 of 214 1 Q And then he made some more on August the 18th and then on 2 September 1 a couple, correct? 3 A That's correct. 4 Q All right. 5 was Government's Exhibit 1C, you're familiar with this, correct? 6 A Yes. 7 Q You were before we started trial, meaning you had learned 8 about this once you inherited the case and got up to speed on 9 it, correct? So then if we look at the underlying MOA, which 10 A I'm sorry? 11 Q You didn't just need to hear about this in the courtroom. 12 You knew about it before we started trial. 13 with this MOA. 14 A Correct. 15 Q Right. 16 pointed out, you've heard all the testimony too? 17 A Yes. 18 Q Right? 19 A Yes. 20 Q Now, if we look, this is no doubt -- this is data system 21 check, and it is the Manny Peña file. 22 that, correct? 23 A Yes. 24 Q This first paragraph is just that, as we've heard throughout 25 this trial, that beginning paragraph that's in all MOAs. Meaning you've also sat here. You were familiar As Mr. Cooney's Including Edwin Castillo's testimony? Everybody agrees with It 1035 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 135 of 214 1 kind of shows how the investigation kicked off, correct? 2 A Yes. 3 Q Nothing unusual about that paragraph at all? 4 A No. 5 Q The next one says, "A review of TECS checks showed CBPO 6 Manuel Peña had an extensive crossing history. 7 not reveal cash transactions, CTRs or criminal history reports," 8 correct? 9 A Correct. 10 Q Does that tell us, if we break that apart, extensive 11 crossing history could have been one TECS check, like we've seen 12 with Kris Healey running ten on one day? 13 one of those categories? 14 A Yes. 15 Q Would you go to the next -- what -- I don't think we've 16 heard about this before in the trial. 17 briefly what a CTR, cash transaction report is. 18 A 19 done by banks. 20 Q 21 you get $10,000, you might have to fill out paperwork at your 22 bank. 23 A That's correct. 24 Q That's a CTR, is what that really is, correct? 25 A Yes. The analysis did That could have been Tell the jury very Cash transaction report documents a type of financial entry And a lot of people, even non-law enforcement, have heard if 1036 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 136 of 214 1 Q And that's another category of TECS? 2 A It could be, yes. 3 Q And then lastly, criminal history records. 4 NCIC, which is the national crime computer the FBI maintains, 5 correct? 6 A Yes. 7 Q But in very general language, people will also say that's a 8 criminal history check. 9 A Yes. 10 Q So that -- these two sentences likely refer to three 11 different kinds of TECS checks, does it not? 12 A Yes, it could. 13 Q You also agree with me that there's not a date on there as 14 to when these were purported to be run, correct? 15 A That's correct. 16 Q And we do know from looking at 14A that there had, in fact, 17 been multiple TECS checks run by agents, correct? 18 A Yes. 19 Q Including Vargas and Healey who, as Vargas described, were 20 partners. 21 A Correct. 22 Q Office mates, whatever, correct? 23 A Correct. 24 Q So now we get to the signature block. 25 signature block, again, there's no typed date here, is there? We've also said If we look at the 1037 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 137 of 214 1 A No, it's handwritten. 2 Q So -- and it's clear with this one, much like what I went 3 over with Edwin Castillo about the document he prepared, if you 4 look at 3/3/2010, the only date on here that might match up is 5 that is, in fact, the date the initial report came in, correct? 6 A That's correct. 7 Q And you would agree with me, somebody looking at this would 8 probably quickly recognize those two things, correct? 9 A Yes. 10 Q All right. 11 were run. 12 A That's correct. 13 Q So it's just a date issue, correct? 14 A It indicates that a review was done prior to March 3rd when 15 it was written. 16 Q 17 when he signed it for Wayne Ball. But otherwise it does tell us that TECS records And we do know that TECS records were, in fact, run. But again, that's because Edwin Castillo chose to date this MR. COONEY: 18 Objection. That is argumentative. The 19 documents speak for themselves, but that's discussion about the 20 testimony of another witness. THE COURT: 21 That's for argument. Rephrase your question. 22 BY MR. EASTEPP 23 Q 24 from this date up here, the typed date, correct? 25 A We already agree that it's likely that the date originated I don't know that. 1038 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 138 of 214 1 MR. COONEY: Objection. 2 MR. EASTEPP: 3 MR. COONEY: 4 THE COURT: The signature date? All right. I mean, the witness -- She answered the question. 5 BY MR. EASTEPP 6 Q 7 about the signing of this because Edwin Castillo says he didn't 8 remember, correct? 9 A That's correct. 10 Q And so now we get to Mr. Pedraza's signature. 11 FBI 302s, that's y'all's form that is the most analogous to this 12 form, correct? 13 A Correct. 14 Q Your forms actually at the bottom preprinted have a date 15 that says "investigation on," correct? 16 A That's correct. 17 Q So y'all actually have a different and likely better 18 procedure in your paperwork, do you not? 19 A It is different, yes. 20 Q You referred to Mr. Cooney that when you prepared 14A and 21 the other exhibits we'll go through, that -- how big is the 22 volume of these TECS records that you went through? 23 A There were a lot of records. 24 Q I mean, thousands of entries? 25 A I couldn't say a particular number, but many spreadsheets And getting to that point, you really don't know anything And again, 1039 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 139 of 214 1 containing the data. 2 Q 3 collate the data? 4 A Yes. 5 Q And that's how you performed it to be able to boil it all 6 the way down to here, correct? 7 A Yes. 8 Q Now, if you did this for your supervisor, we took this same 9 thing and you're investigating something, you get that box of And you had to move that to a spreadsheet to even be able to 10 TECS records, you put it in a spreadsheet, you boil it down to 11 what you did with 14A and you wrote a 302 for this, say it's 12 still in investigation, which would be a likely thing, right? 13 A That I would gather TECS records? 14 Q That if you were doing this investigation, you had these 15 TECS records, you did this same analysis you've talked about of 16 putting it into an Excel spreadsheet and then deciding when 17 checks were made out of these thousands and thousands of 18 entries, there would be a -- if this was in the investigative 19 stage, you likely would have written a 302 memorializing this 20 work you did examining TECS records and making a spreadsheet and 21 saying: 22 checks, correct? 23 A Correct. 24 Q So if you did that and wrote a 302 like your supervisor, 25 Special Agent Krupa, when you brought him the 302, you wouldn't Okay. This shows how many times an agent ran these 1040 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 140 of 214 1 bring that box of records and your spreadsheets and go over 2 that. 3 A I would attach the records electronically. 4 Q You're talking about the spreadsheet? 5 A Correct. 6 Q But all those underlying records would still be, in y'all's 7 language, in your evidence room, correct? 8 A 9 to our 302s. You would give him the signed 302 saying that's my work. We have electronic records now that we attach electronically 10 Q 11 supervisor's agents with 302s, right? But you're not bringing boxes and boxes into your MR. COONEY: 12 13 Okay. That's how I would do it. This is outside the scope of this witness' testimony. 14 THE COURT: 15 MR. COONEY: 16 Objection, Your Honor. Sustained. She's testified to records, not to her work with the FBI. THE COURT: 17 Sustained. 18 BY MR. EASTEPP 19 Q 20 this and signed this. 21 spreadsheets to figure out if TECS checks had been run on that 22 date, do you? 23 So when supervisor -- you have no idea when Mr. Pedraza got MR. COONEY: You don't think he went back and did Objection. Well outside the scope of this 24 witness' knowledge and her opinion as to what she thought is not 25 relevant. 1041 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 141 of 214 THE COURT: 1 2 Mr. Pedraza. 3 yes or no. His question is you have no idea about She can answer that question. 4 THE WITNESS: 5 THE COURT: 6 way. 7 BY MR. EASTEPP 8 Q 9 Exhibit 14B. She can answer that I don't know. Or "I don't know." You can answer it that Now, moving to the next one, which is Government's Clearly this shows that you confirm that Marco 10 Rodriguez had, in fact, run several TECS checks for the name 11 Aurelio Gomez over a several month period, correct? 12 A That's correct. 13 Q Meaning that work had been done. 14 A On those particular dates, yes. 15 Q And TECS is a database, is it not? 16 A Yes. 17 Q And do you think there's any special agent in any agency 18 that doesn't understand that when you log into databases, that 19 there's a record of the logging in? 20 A I'm not aware of what other agents know about the databases. 21 Q Well, you know that, don't you, when you log into one? 22 A That's correct. 23 Q That there's going to be a record of you entering that 24 database? 25 A That's correct. 1042 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 142 of 214 1 Q Pretty common knowledge. 2 A I know it. 3 Q You think other FBI agents know it? 4 A I haven't discussed it with other FBI agents. 5 Q You're going to hang tough, huh? 6 MR. COONEY: 7 THE COURT: 8 BY MR. EASTEPP 9 Q Objection. Sustained. Now, if we look at the underlying 302 -- I'm sorry, the MOA, 10 the title is correct, right? I mean, meaning that we know he 11 did, in fact, run some records checks because that's what you 12 show here. 13 A Correct. 14 Q The file name is correct, right? 15 A Yes. 16 Q First paragraph again is that beginning paragraph we see in 17 all these MOAs, right? 18 A Yes. 19 Q The next one with -- let's set aside the date, but it just 20 says Marco Rodriguez located records pertaining to this Gomez 21 person with NCIC. 22 within the TECS check, correct? 23 A That's correct. 24 Q And then this other is just stating some factors about the 25 investigation, right, the next two sentences? And I'll get to the dates, but -- And again we've gone over. NCIC could be That she's 1043 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 143 of 214 1 believed to be continuing to organize the distribution of drugs. 2 I mean, that's part of the investigation. 3 A That's what it says in the document, yes. 4 Q That's all. 5 NCIC, again referring back without the day. 6 it breaks out the NCIC. 7 list criminal records like this, the date of -- arrest date and 8 what the offenses were and convictions? 9 A You can include that in a report, yes. 10 Q Right. 11 to get from an NCIC report, right? 12 A Yes. 13 Q And then that continues on to the next page, correct? 14 A Yes. 15 Q And all the dates on here of the activity, meaning it's 16 showing an arrest and conviction in '87 and '88, then an arrest 17 in '97, an arrest in '93 with an unknown conviction date, and 18 then an arrest in 2000 and disposition and -- meaning convicted 19 in 2001. 20 14th all the way through September the 12th of 2011, those older 21 records should be in there, right? 22 A Yes. 23 Q So on this, the issue then becomes the date, November 14th 24 of 2010, that's both at the bottom, correct, and up here in the 25 paragraph? That the following records were located through And, you know, then And is that common that an agent would Because that's the kind of information you're going Clearly if somebody ran records checks on March the 1044 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 144 of 214 1 A Yes, the dates do match. 2 Q Right. 3 signature? 4 A And they match the date that the activity was said to occur. 5 Q Right. 6 how when MOAs are getting passed around, they're still in doc, 7 D-O-C, form or Word form when they're being passed around, 8 correct? 9 A Correct. 10 Q You would agree with me that if the date March the 14th 11 instead of November the 14th of 2010, but March the 14th of 2011 12 was on here and down here, all that information would be 13 accurate, correct? 14 A 15 the report was actually run through TECS. 16 Q 17 Government's Exhibit 14B and then showing you on the report that 18 if instead of November 14th of 2010, it was March 14th of 2011, 19 and again down here, it would be completely accurate, correct? 20 A If it contained the correct date, it would be accurate. 21 Q Right. 22 Oh, they match here, meaning the typed date for the But you've heard the testimony in this case about It would be an accurate report if it included the date that Right. That's what I'm saying. Thank you. I'm showing you That was my question. So the issue then becomes it's not that it's made up. It 23 just has the wrong date on it, meaning TECS checks were run that 24 could be consistent with the information on here. 25 again, we went over the four entries all predate March 14th of Because 1045 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 145 of 214 1 2011. Should have been in the NCIC computer, correct? 2 A Correct. 3 Q Do you have any knowledge that you can tell this jury at all 4 about how these got signed by Marco Rodriguez and Gene Pedraza? 5 A I do not. 6 Q Now, the next MOA under that, again, Aurelio Gomez and TECS 7 checks. 8 A Yes. 9 Q There's not a date other than that same beginning paragraph We agree it's the same file? 315, yes. 10 we've always talked about, correct? 11 A Correct. 12 Q The next two substantive paragraphs put in here just say 13 DHS-OIG located records pertaining to Aurelio Gomez through 14 TECS. 15 A Yes. 16 Q Now, look at the next thing. 17 question mark." 18 non-capitalized or lower case letter, "a report of 19 investigation." 20 sentence makes no sense, does it? 21 A Correct. 22 Q Does it not appear that this is a -- that that is a draft 23 and that somehow it was not edited properly? 24 A It made it into the case file as the final signed version. 25 Q Right. You agree this says that? It has "DHS-OIG obtained Then the next sentence starts with a That -- from a grammatical standpoint, that Again, we've heard about all these MOAs getting 1046 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 146 of 214 1 passed around in the review process. 2 that got printed that was an earlier version and not the final 3 version? MR. COONEY: 4 Objection. Could this not be just one This witness' recollection of 5 the testimony, it's the jury's recollection of all the testimony 6 that's going to control, not mine, not Mr. Eastepp's, not the 7 agents, and that's what we're doing right now. 8 about testimony. THE COURT: 9 We're talking Sustained. 10 BY MR. EASTEPP 11 Q 12 correct? 13 A Correct. 14 Q You agree that with oversight, this should have been caught? 15 A Correct. 16 Q And then we get down to the dates. 17 back that DHS-OIG located records pertaining to Aurelio Gomez 18 through TECS. 19 September 2011, Marco Rodriguez had, in fact, run TECS checks 20 under that name. 21 then the only date referenced on here becomes the September 16th 22 of 2010, correct? 23 A 24 should have been run by that date. 25 Q But it does appear to have an error that was not removed, Correct. And again, we know going Again we know that at least in March and in And, of course, there's not a date there. But The date at the bottom indicates that the report You've heard all that other testimony, that at times, dates 1047 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 147 of 214 1 were all over the mark with this agency, right? 2 A That's correct. 3 Q Again with the signature. 4 were signed or the circumstances of them being signed, do you? 5 A No. 6 Q Now, 14C again, it's very clear that Marco Rodriguez ran a 7 lot of TECS checks on September the 1st of 2011. 8 with that? 9 A Yes. 10 Q What would be a reason again why there are various name 11 iterations being used? 12 A 13 located. 14 Q 15 information would do to make sure they're getting accurate 16 information, correct? 17 A Correct. 18 Q Then he ran some more on September the 7th, correct? 19 A Yes. 20 Q In fact, September the 7th, if we counted, looks to me like 21 it's 20, 25 maybe? 22 A Yes. 23 Q Maybe 30 or so, okay? 24 underlying MOA that's Government's Exhibit 13A, again, we have 25 this opening -- it has TECS records, Maria Irrecheta. You don't have any idea how these Do you agree Just to make sure that a complete and full report is This would be what an agent who's trying to find out There are many run on September. Now, if we look at the -- the Is that 1048 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 148 of 214 1 how you pronounce it? The case name and the unknown. Again, we 2 have the initial paragraph, correct? 3 A Yes. 4 Q And then, of course, we have a date here. 5 the date, Marco Rodriguez searched the TECS computer database 6 for records pertaining to her, and that a search failed to 7 locate records pertaining. 8 crossing documents. 9 there's no doubt at some point in time he, in fact, had run TECS But setting aside Furthermore, search failed to locate If we go back, setting aside the date, 10 checks, correct? 11 A Much later than the date referenced in the report. 12 Q Setting aside the date, there's no doubt he had run TECS 13 checks? 14 A Yes. 15 Q So now we just get to the date, and it has November the 3rd, 16 and then it's typed in at the bottom, correct? 17 A Yes. 18 Q But other than that, again setting aside the date, at some 19 point in time we know Marco Rodriguez ran these checks. 20 do you know any of the circumstances of the signing of this 21 document? 22 A No. 23 Q 14D shows us that in 2010, Ms. Hinojosa had run a TECS check 24 for a Texas license plate number that's listed, correct? 25 A Yes. Again, 1049 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 149 of 214 1 Q And that also tells us that in these categories, like we 2 talked before of Kris Healey running ten checks, one of the ones 3 we didn't mention, you can run license plate checks, correct? 4 A Correct. 5 Q And, of course, it shows Marco Rodriguez as early as 6 September the 7th and then later through November the 10th ran 7 checks again, correct? 8 A Correct. 9 Q Now, if we look at the underlying MOA -MR. EASTEPP: 10 May I have a moment? 11 BY MR. EASTEPP: 12 Q 13 same license number that you show, that there were, in fact, 14 some TECS checks run, correct? 15 A Yes. 16 Q And then we have the beginning paragraph, correct? 17 A Yes. 18 Q And if we note the beginning paragraph, July 2nd of 2010, 19 correct? 20 A Yes. 21 Q About this report. 22 just four days later, correct? 23 A That's correct. 24 Q Then it has February 1st of 2011. 25 agent's name, correct? So if we look at the underlying MOA, you see that it's the If we look, Ms. Hinojosa ran it twice Again, it does not say an It just says the agency. 1050 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 150 of 214 1 A Correct. 2 Q "Conducted a registration check of the white Pontiac van 3 bearing the same license plate." 4 indicated the vehicle was sold in January of 2010 and remains 5 unregistered." 6 A That's what it says, yes. 7 Q So if it -- if TECS records indicated that in January 2010 8 it was sold, you agree with me that probably would have popped 9 up in these July 6th checks by Ms. Hinojosa because that's The last sentence being, "It Do you agree with that? 10 seven, six months later? 11 A If it had happened prior to that date, yes. 12 Q Right, right. 13 A Yes. 14 Q Okay. 15 conducted a registration check, do you know if any printouts 16 from -- Ms. Hinojosa may have made were in the file as of 17 February 1st of 2011? 18 A 19 the other document, I can tell you the date. 20 Q Right. 21 A Yes, the November 10th, 2011. 22 Q It says that Marco Rodriguez ran one fresh that day, 23 correct? 24 with that? 25 A And January 2010 is obviously prior to -- So again, even with this date that the agency There was a printout in the file. It was -- if you put up It's going to be one of these November dates? Or it's newer than Ms. Hinojosa's. Correct. Would you agree 1051 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 151 of 214 1 Q Newer in time. Later in time. So you just didn't see one 2 that -- from when she ran it, correct? 3 was -- 4 A There was not one in the blue file that was run by her. 5 Q Okay. 6 working file as of February 1 of 2011 and was memorialized in 7 this 302 and then the TECS -- the MOA makes it in the file, the 8 blue file, but the underlying TECS record never made it in the 9 blue file, you would have no knowledge of that? The only one you saw So if one had been run in July of 2010 and was in the 10 A No, but I don't believe Ms. Hinojosa had access to the 11 working files. 12 Q 13 an investigation herself, correct? 14 A She's not an agent. 15 Q So if she ran it and printed it, it likely went to someone 16 working on the case, correct? 17 A I don't know. 18 Q She's not -- well, we just went over it. 19 investigator, correct? 20 A Correct. 21 Q So if it's run to be utilized in an investigation, that's 22 logically someone other than her. 23 A Correct. 24 Q All right. 25 says, "The agency conducted a registration check," if somebody Just the original case files. If she ran it in July 6th of 2010, she clearly is not doing She's not an agent. She's not an So again, on February 1st of 2011, since it just 1052 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 152 of 214 1 has picked up an older copy, read it and is simply memorializing 2 that as of January 2010, the vehicle had been sold and remains 3 unchanged, you would have no knowledge if that TECS record had 4 been in that working file? 5 A No, I would not know that. 6 Q And again lastly, the circumstances of signing it, it 7 purports to be Marco Rodriguez and Gene Pedraza, you have no 8 knowledge of? 9 A I don't know how it was signed. MR. EASTEPP: 10 That's -- I'll pass the witness, Judge. REDIRECT EXAMINATION 11 12 BY MR. COONEY 13 Q 14 looking at -- 15 A Correct. 16 Q -- with Mr. Eastepp, Agent Sirles. 17 to go ahead and make a mark on this, "On February 1, 2011, 18 DHS-OIG conducted a registration check on." 19 review of the TECS records, is that a true statement? 20 A No. 21 Q I'm putting up Government's Exhibit 1C again. 22 the document that you started speaking with Mr. Eastepp about. 23 This is a memorandum of activity from the Manny Peña case 24 reflecting that a review of TECS records showed that CBPO Manuel 25 Peña has an extensive crossing history. Just putting up 13A. That's the document you were just And I just -- I'm going Based on your And this is Do you recall the 1053 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 153 of 214 1 conversations about this document? 2 A Yes. 3 Q All right. 4 handwritten; is that right? 5 A Correct. 6 Q Handwritten for March 3, 2010? 7 A Correct. 8 Q Handwritten for March 5, 2010? 9 A Yes. 10 Q And I'm putting back up Government's Exhibit 14A. 11 your review of the TECS records, were there any TECS searches 12 conducted even in the year 2010 by anyone from the Department of 13 Homeland Security-Office of Inspector General for Manny Peña? 14 A No. 15 Q You were asked some questions by Mr. Eastepp about your own 16 experience in law enforcement. 17 A Yes. 18 Q And your own experience drafting 302s; is that right? 19 A Correct. 20 Q Have you ever heard the phrase 1811? 21 A Yes. 22 Q What's an 1811? 23 A It's a law enforcement category. 24 Q Are you considered an 1811? 25 A Yes. And the signature dates down here are Based on Do you remember those questions? 1054 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 154 of 214 1 Q When you say law enforcement category, do you mean category 2 of criminal investigator? 3 A Yes. 4 Q Are criminal investigators with the Department of Homeland 5 Security-Office of the Inspector General also 1811s? 6 A Yes. 7 Q You're all law enforcement officials; is that right? 8 A Yes. 9 Q When you draft 302s, do you put dates in your 302s that you 10 know to be false? 11 A No. 12 Q What date do you sign -- excuse me. 13 question. 14 A Electronic signatures, yes. 15 Q When you affix that electronic signature, do you affix a 16 date with it? 17 A 18 that are printed into that 302. 19 Q And what date is reflected with the electronic signature? 20 A The date drafted. 21 Q Would you ever put an electronic signature in for the draft 22 date that was not the draft date? 23 A No. 24 Q That married up with something else? 25 A No. Let me ask a better Do you sign your 302s? There's a date of the investigation and the date drafted 1055 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 155 of 214 1 Q Would you ever -MR. EASTEPP: 2 3 questioning. 5 It's just argument. MR. COONEY: 4 THE COURT: 7 BY MR. COONEY 8 Q 9 are signing it? He asked the questions about 302s. A Would you ever sign a 302 for a date other than the date you No. MR. COONEY: 12 MR. EASTEPP: 13 THE COURT: 15 16 17 18 19 No further questions, Your Honor. I don't have any questions. All right. MR. KIDD: Your Honor, James Izzard is going to be the next witness. THE COURT: All right. It's 12:15 now. Let's come back 1:20 or so so we'll be ready to start at 1:30. (Jury leaves courtroom) THE COURT: 21 from the government today? 22 MR. KIDD: 23 THE COURT: 25 Ma'am, you may step down. Mr. Cooney, who would be our next witness? 20 24 Can I Go ahead. 11 14 It's irrelevant. ask one last question? 6 10 Judge, I'm going to object to this line of Do we anticipate him being our last witness At this time we do, Your Honor. All right. See y'all back here about 1:15. (Recess taken from 12:16 to 1:28.) THE COURT: Be seated. All right. 1056 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 156 of 214 1 Mr. Cooney, do I understand we have a change of plans here? MR. KIDD: 2 3 the record. 5 All right. MR. EASTEPP: 7 THE COURT: 8 MR. EASTEPP: 10 What I'll -- and then what is the defense? 6 9 Mr. Kidd, for Your Honor, the government rests at this time. THE COURT: 4 That's correct, Your Honor. inspection report. I have a motion to make. And then are you going to rest? I want to publish the evaluations and the I'm not going to read the full thing, just some selected portions. THE COURT: 11 Then I'll rest. All right. Here's what I'm going to do. 12 I'm going to bring the jury back in, and I'll have the 13 government rest with the jury in the box. 14 call on you, Mr. Eastepp, and you're going to do whatever you 15 need to do as far as publishing to the jury whatever. 16 to not hear your motion before that, but I am going to deem it 17 timely. 18 you're done doing whatever it is you need to do and you rest, I 19 assume given what he's going to do, there's not going to be 20 rebuttal? Then I'm going to We're going to hear it afterwards. I'm going And then when Is that a yes? 21 MR. KIDD: 22 THE COURT: That's correct, Your Honor. Then I'm going to let the jury go for the 23 day, and then I'll let you make the motion and so the jury is 24 not cooling their heels while you're making a directed verdict 25 motion. And there's also some things I want to go over about 1057 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 157 of 214 1 the charge while I have you here. 2 let you do is leave and then maybe come back about 4:00 or 4:30, 3 and I'll give you the charge. 4 morning and probably start argument about 10:00. 5 us a little flexibility in the morning to make changes. 6 have y'all come before 10:00 and make objections and we'll make 7 changes. 8 MR. COONEY: THE COURT: I'll How does Your Honor -- ordinarily when we Yes. I ordinarily give as much as you want up to about ten minutes. MR. COONEY: 13 14 So that gives request a time, does that include our rebuttal time? 11 12 And we'll talk about it in the How long do you think argument is going to take? 9 10 And then probably what I'll So can we take six in our primary closing and four in the rebuttal? 15 Would it be possible for us to give some thought to it 16 before the -- we talk this afternoon, or is this something you 17 want to take into account with the jury right now? 18 THE COURT: 19 MR. COONEY: 20 THE COURT: 21 MR. EASTEPP: 22 23 I don't have to know right now. We would ask for an hour 15 total. What's your feeling, Mr. Eastepp? That's way too much. This is a 40 minute case. THE COURT: Well, I'll split the difference. You each 24 get an hour. And that way -- it will take me a while to read 25 the instructions, but at least that way the jury will be 1058 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 158 of 214 1 deliberating tomorrow afternoon. MR. COONEY: 2 3 Great. Do you anticipate we'll be able to complete closings before the lunch hour? 4 THE COURT: 5 MR. COONEY: 6 THE COURT: Will that be the idea? That will be the idea. Great. This is going to be a lengthier charge, 7 quite frankly, than I anticipated, but I hadn't really focused 8 on what we had to say. 9 and I have been working on it up here this morning. But now that I've focused on it, Katie It will 10 take me a while to read. 11 we're still going to be in the 12:30, 12:45 range I think. 12 MR. COONEY: 13 MR. EASTEPP: 14 THE COURT: 15 18 19 Great, great. I'm going to be shocked if I take an hour. No one -- I have never had a jury yet demand more argument. MR. COONEY: 16 17 But then if each side takes an hour, We will not fill the time just to fill the time. THE COURT: It's not like more cowbell. says more argument. 20 All right. 21 (Jury enters courtroom) 22 23 24 25 No one ever Tony, can you have the jury join us? THE COURT: All right. Ladies and gentlemen, be seated. Mr. Kidd, are we hearing from Mr. Izzard? MR. KIDD: We are not, Your Honor. United States rests. At this time the 1059 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 159 of 214 1 2 3 THE COURT: All right. Mr. Eastepp, what say the defendant? MR. EASTEPP: Your Honor, at this time I would like to 4 publish what's previously admitted into evidence as Pedraza's 5 No. 10 that have been identified as employee evaluations of 6 Mr. Pedraza. 7 final inspection report from DHS-OIG. And next Pedraza's 17, which is identified as the 8 First as to Pedraza's Exhibit No. 10, it shows on Bates page 9 23531 of that exhibit that the plan -- that is the Department of 10 Homeland Security-Office of Inspector General employee 11 performance plan and rating form. 12 acknowledged being given by supervisors to -- appears to be 13 Mr. Pedraza's signature in November of '07 with a progress 14 review in '08 with his rating listed as achieved excellence, 15 dated in October of '08. 16 That it shows it was The next page of that particular evaluation shows as to the 17 critical job elements and performance standards that he was 18 rated under critical job element 4 for investigations that 19 included manages investigative program and related activities as 20 assigned with the performance standard for achieved expectations 21 of ensures investigations are conducted in a diligent and 22 complete manner. 23 counterparts to meet investigative responsibilities and 24 objectives, maintains liaison with high ranking law enforcement 25 officials as necessary to maximize -- to maximize effectiveness Coordinates with high ranking department 1060 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 160 of 214 1 and productivity, and ensures that investigative priorities are 2 followed and effectively manages multiple tasks or activities. 3 Monitors investigations and ensures that evidence is gathered 4 and reported in an unbiased and independent manner. 5 that investigations are conducted with due respect for the 6 rights and privacy of those involved, and assigned to conduct 7 complex and sensitive investigations as required. 8 got a -- if we go back to the other page, an AX would be 9 achieved excellence, the highest rating. 10 Ensures That shows he Next would be a set again of employee performance plan and 11 rating form from the agency from February 15th of '09 to 12 September 30th of '09 that bears the signatures showing it was 13 acknowledged that it was given to him, the plan was given. 14 There was a progress review in April of '09, and that he got the 15 rating in November of '09, this time with an exceeded 16 expectations rating. 17 For the record, that was Bates page 23526. Now Bates page 23528. Communication in this one, he got 18 exceeded expectations; and teamwork, the excellent rating. 19 the next page, Bates page of 23529, again for investigations 20 with very similar standards that I read in length a minute ago, 21 again got the highest rating for it. 22 And Then starting at Bates page 23521 would be the next period, 23 which is February of '09 through 9/30 of 2010. Again 24 acknowledged the plan in November of '09, progress review early 25 in -- appears to be April of 2010, and then rated in November of 1061 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 161 of 214 1 2010, again, with a rating overall of exceeded expectations 2 signed by various supervisors and Mr. Pedraza. 3 Then going to page 23524 on that same rating under critical 4 job element 4 for investigations, he was rated at the highest 5 level for it, again with the same requirements that I previously 6 read in detail. 7 Then the next one is going to be the last one from this 8 exhibit. Again, it shows it's the employee performance and 9 rating form, acknowledged that he received it in November of 10 2010, an interim rating or progress rating in April 15th of 11 2011, and then shows the final plan was signed in November 2011 12 after the inspection. 13 expectations, which is defined under this plan as fully 14 successful performance. 15 the organization, its mission, and has demonstrated full 16 competency in performing the duties and responsibilities by 17 demonstrating good sound performance with minimal supervision. 18 19 20 21 22 23 Shows in this one he got achieved Employee has a good understanding of Underneath it, for brevity's sake, has similar elements showing the rating plan. That's all I wish the publish from this exhibit at this time, Your Honor. THE COURT: Mr. Kidd or Mr. Cooney, is there anything from that exhibit you wish to point out to the jury? 24 MR. KIDD: Not at this time, Your Honor. 25 MR. EASTEPP: Then next if I could, Your Honor, 1062 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 162 of 214 1 Government Exhibit -- or Pedraza's Exhibit No. 17 has been 2 admitted into evidence and identified as the final inspection 3 report, Department of Homeland Security-Office of Inspector 4 General, Inspection Operations Division, concerning the -- and 5 it shows it's the final report with the executive summary. 6 Summarizing it, that says, "The Department of Homeland 7 Security-Office of Inspector General, Office of Investigations, 8 Inspection Operations Division, Office of Investigative 9 Compliance conducted this inspection to determine whether the 10 DHS-OIG McAllen field office, the MCA in McAllen, Texas, was 11 successfully meeting or exceeding all applicable investigative 12 standards and policies. 13 "Our inspection determined that the MCA is meeting all 14 applicable investigative standards and policies, to include the 15 Attorney General guidelines for Offices of Inspector General 16 with statutory law enforcement authority, the AG Guidelines, the 17 Council of Inspectors General on Integrity and Efficiency, the 18 CIGIE standards reflected in the quality standards for 19 investigations, and the DHS-OIG Special Agent Handbook, the SAH. 20 However, improvements are required. 21 "Our inspection found no significant systemic failures, and 22 MCA was compliant in meeting all applicable investigative 23 standards and policies. 24 policy or procedural non-conformity and pointed out areas of 25 required improvement regarding MCA's internal procedures. Our inspection identified instances of The 1063 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 163 of 214 1 non-conformities appear to be a direct result of ineffective 2 managerial oversight at the SAC and ASAC level. 3 "We discussed our findings with MCA Special Agent in Charge, 4 SAC Gene Pedraza, who took corrective action when appropriate. 5 The level of cooperation exhibited by MCA staff during this 6 inspection facilitated its successful completion. 7 sincerely appreciated." 8 9 It was Typed names of C.J. Chang with title of an SSA, IOD, OIC, bearing a date of 1/5/12, and approving official of Terrance 10 Demeroto, a SAC, IOD, OIC, signed the same day in January 5th of 11 2012. 12 That is Bate -- that's not a Bates page. Going to page 7 of 16 in the inspection report. Says, "Of 13 the 124 investigative files opened during fiscal year 2010, 52 14 remain as open cases and 72 were closed. 15 inspection, the inspection team, we reviewed a total of 58 16 investigative case files; 13 open cases and 45 closed cases. 17 The inspection team reviewed a variety of inspection types and 18 cases completed by MCA. 19 survey, each agent carries an average of 15 cases. 20 for those cases are attached in what is attachment A to this 21 report." 22 As part of our According to E-D-S or EDS and the SAC Statistics Skipping down this page to the heading of investigative 23 methods and standards. "The investigations we reviewed were 24 initiated and conducted in accordance with all applicable laws, 25 rules, regulations, policies and procedures with due respect for 1064 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 164 of 214 1 the rights and privacy of those involved. 2 the MCA, ordinarily uses two SAs when conducting interviews in 3 situations that are potentially hazardous or compromising. 4 SAs issue the appropriate warnings and advisements. 5 comply with agency policies dealing with union representatives 6 at subject and witness interviews. 7 during the inspection period were recorded either by audio or 8 video. 9 The McAllen office, MCA MCA SAs No interviews conducted "The evidence we reviewed was gathered and reported in an 10 unbiased manner. 11 been able to maintain their independence so that judgments used 12 obtaining evidence, conducting interviews and making 13 recommendations were objective and viewed as impartial." 14 We concluded that MCA and its employees have The next page, which is 8 of 16 under the heading 15 Investigative Case Files. "We found that the majority of the 16 MCA case files that we reviewed were complete and properly 17 organized. 18 sequentially organized within the file according to the SAH. 19 Our review found that the MCA SAs established investigative case 20 files immediately upon the opening and assignment of an 21 investigation. 22 appropriate six part folders and identified with the correct 23 case number on the outside of the file. 24 investigative activity, both exculpatory and incriminating, in 25 the official case file. However, some case file documents were not The case files were created using the MCA employees recorded Where applicable, confidentiality 1065 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 165 of 214 1 requests were adequately documented in the case files. 2 not all the reviewed case files reflected the final disposition 3 of evidence after it was determined that it could no longer be 4 retained as such. 5 documents and related paperwork, were stored in the closed case 6 files rather than properly disposed of in accordance with the 7 SAH. 8 marked on the outside, quote, grand jury material, close quote, 9 and the files were maintained in a limited access storage file 10 11 However, Some items of evidence, such as immigration Case files containing grand jury information were clearly accessible only to authorized personnel." Under the heading on this page of Case Reviews. "Based on 12 our inspection, MCA recorded that case reviews were conducted on 13 at least a quarterly basis when applicable, and the review 14 process was documented in the case file as required by the SAH. 15 Case review documentation typically present in the case file 16 included a brief summary of the investigative progress and the 17 date and initials of the reviewing supervisor. 18 "Inspector's note: In addition to reviewing the 58 cases, 19 three additional cases were selected for review, as they have 20 been open for over five years. 21 to be of investigative value, and one awaits sentencing." 22 Two remain open as they continue Toward the bottom of that page under Reports of 23 Investigation, "The majority of ROIs and MOAs that we reviewed 24 were completed in accordance with the SAH. 25 addressed the relevant aspects of the investigation. The reports reviewed However, 1066 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 166 of 214 1 the inspection team observed that in several of the cases 2 reviewed, MOAs were signed months after the investigative 3 activity date, and thus did not appear to have been submitted 4 within five days or soon thereafter as required by the SAH. 5 Some of the exhibits," continuing on the next page, which is 9 6 of 16. 7 "Some of the exhibits within the ROIs were out of order. 8 The reports contained exculpatory evidence and relevant 9 mitigating information where applicable. All the reports we 10 reviewed reflected what the investigation had accomplished or 11 the action taken as a result of the investigative findings to 12 include referrals to other agencies." 13 Going to page 12 of 16 under the main heading of The Report 14 Of Administration. 15 interviews and office professionalism. 16 were no significant morale issues. 17 employee personal interviews, the responses revealed widespread 18 dissatisfaction with the MCA management. 19 personnel interviews were immediately reported to the DAIGI for 20 IOD." 21 Toward the middle of the page, Personnel "MCA SAC reported there However, during the MCA The findings of these The next page, which is 13 of 16, starts middle of the page 22 under Required Improvements Heading. "The inspection team found 23 that MCA was meeting applicable investigative standards and 24 policies and made the following recommendations for improvements 25 to the MCA management based on the procedural non-conformities 1067 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 167 of 214 1 observed. 2 improvements must be corrected no later than six months from the 3 date of this report. 4 ensure that the below listed items have been fully implemented. 5 These required improvements -- these required At that time, MCA will be reinspected to "1, properly document the disposition of all evidence that 6 is currently stored in closed case files by processing the 7 evidence in accordance with the procedures outlined in the SAH. 8 9 "2, follow the procedural requirements regarding the deactivation of CIs that had been paroled, and document the 10 termination of the parolees within the CI file." 11 Page 14 of 16 continuing those improvements. 12 "3, prosecutorial declinations must be uploaded into the EDS 13 database in accordance with the SAH. 14 "4, a greater degree of management oversight is needed to 15 ensure that all MOAs are timely submitted, reviewed, approved 16 and filed in accordance with the SAH." 17 "5, MCA management must examine all closed files to ensure 18 that the file is organized in accordance with the SAH; i.e., 19 ROIs must be complete and orderly displayed within the official 20 file folder. 21 "6, to ensure all investigative plans are properly initiated 22 and completed for each investigation. Investigative plans 23 should summarize the predicate allegation, identify all 24 investigative leads, address appropriate database checks and 25 must identify all complainants, targets and witnesses." 1068 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 168 of 214 1 "7, management must conduct quarterly supervisory case 2 reviews via the process described in the SAH. 3 process will help ensure that all relevant aspects of an 4 allegation are thoroughly investigated and the case is brought 5 to a logical investigative conclusion." 6 This review It closes with, "SAC Pedraza acknowledges and concurs with 7 the findings and required improvements depicted on this 8 inspection report. 9 submitted by the SAC reflecting such concurrence is enclosed as A closing inspection memorandum prepared and 10 attachment B," which is this document, which is the final 11 document attached to the inspection report. 12 November 7th of 2011, it's to -- the memorandum is to Terrance 13 Demeroto, special agent in charge of the headquarters inspection 14 division, from Eugenio Pedraza, Associate Special Agent in 15 Charge, McAllen Field Office. 16 report for the McAllen field office. 17 Subject: That shows that own Memo re inspection "After reviewing the final draft of the McAllen field office 18 inspection report, I concur with the findings. The report was 19 objective, well written, and factually covered the various 20 inspection categories. 21 "On behalf of the McAllen field office, I would like to 22 thank you and the members of our team for the professional, 23 thorough and informative inspection you conducted at our office. 24 Your team provided us with outstanding expert guidance, and we 25 especially appreciate the recommendations that improved our 1069 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 169 of 214 1 2 day-to-day operations. "Please extend my heartfelt appreciation to the members of 3 your team for a job well done. 4 Associate Special Agent in Charge, McAllen field office," with 5 CCs to two individuals at the Washington headquarters. 6 That's the final document in that exhibit, Your Honor. THE COURT: 7 8 Mr. Kidd or Mr. Cooney, anything from that exhibit you wish to point out? MR. KIDD: 9 No, Your Honor. 10 MR. EASTEPP: 11 publish to the jury. 12 rests. THE COURT: 13 14 rested. 15 government? Those are the only exhibits I wish to And, Your Honor, at this time the defense All right. Mr. Kidd, the defense has Is there anything by way of rebuttal from the 16 MR. KIDD: 17 THE COURT: 18 Respectfully, Eugenio Pedraza, All right. No, Your Honor. Okay. Ladies and gentlemen, the government has rested 19 and the defense has rested, which means you've heard all the 20 evidence you're going to hear. 21 Here's what I want to do. It's good news for you but bad 22 news for me and the lawyers, is I'm going to let you go this 23 afternoon, and I'd like you to be back 9:45 in the morning 24 raring to go at 10:00, and we'll start with the final 25 instructions and closing arguments. The lawyers and I have some 1070 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 170 of 214 1 basically paperwork we have to complete, and I don't want y'all 2 to have to sit in the jury room and cool your heels while we're 3 doing it because it could take some time. 4 that, I'm going to let y'all go today. 5 Remember my instructions. So rather than do Don't talk about the case with 6 anybody, don't try to visit any places mentioned in the case, 7 don't do any kind of independent research or Facebook or any 8 Internet activity on the case. 9 9:45. 10 11 12 And we'll see you tomorrow about (Jury leaves courtroom) THE COURT: All right. Be seated. Let's start with the directed verdict motion 13 that counsel for the defense wanted to make. 14 the record that he asked to make such motion when the government 15 first rested, and I asked him to wait, given what I had been 16 advised about the schedule of presentation of evidence, so I'm 17 deeming this timely. 18 19 Let me state on Go ahead, Mr. Eastepp. MR. EASTEPP: And, Judge, also to possibly speed this up 20 a little bit, I don't -- my argument would not be any different 21 for the Rule 29 motion at the close of the government's evidence 22 as it would have been at the close of all evidence. 23 THE COURT: 24 MR. EASTEPP: 25 I suspected that. I'm okay with the Court accepting these as an argument for both timely made motions to speed this up. 1071 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 171 of 214 1 If I can start, I think a logical place to start first is 2 Count 4 and Count 6 that are the two Marco Rodriguez substantive 3 counts, the two that my client is alleged to have been involved 4 with Special Agent Rodriguez. 5 counts that the government presented were those last few 6 exhibits with Special Agent Sirles this afternoon. 7 will note, throughout the course of the case, there were no 8 questions asked by the government, as I recall, at all about 9 Special Agent Marco Rodriguez and his role with my client and The only evidence in these two As the Court 10 whether they would have been aiding and abetting each other as 11 is styled in Counts 4 and 6, and violating Title 18 of United 12 States Code 1519 in these counts by falsifying documents, 13 specifically MOAs and supervisory case review sheets and making 14 false entries in a record, specifically the case file for 15 criminal investigation 2 in Count 4; and then in Count 6, 16 criminal investigation 3, as it's styled in the introduction to 17 the -- 18 THE COURT: Investigation 2 is which one? 19 MR. COONEY: 20 THE COURT: 21 MR. COONEY: 22 THE COURT: 23 MR. EASTEPP: 315. That's the Jonathan LNU file. And 6 is? 1086, unknown. Okay. Go ahead. So those two particular cases, even in a 24 light most favorable to the government as is obviously the legal 25 standard at this stage of the case, they put the case files into 1072 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 172 of 214 1 evidence and put some MOAs into evidence that had wrong dates. 2 Well, the great weight of the testimony has been that the dates 3 may not necessarily accurately reflect, you know, what's going 4 on with the paperwork. 5 they prove that Marco Rodriguez did anything, other than putting 6 in some documents that appear to bear his signature. 7 But in particular, the simple fact is Next, they prove not a thing as to what my client would have 8 known about those MOAs coming to him. Specifically, there 9 certainly was zero testimony that anybody ever heard or 10 overheard or observed any conversation between Marco Rodriguez 11 and my client about doing anything improper or illegal. 12 And, in fact, again, the great weight of the testimony is 13 that the two would never have done that; that they weren't even 14 close to being friendly in a normal interpersonal sort of way, 15 much less the type who would be involved in a criminal 16 conspiracy. 17 So I just can't see with these two counts that there's any 18 true evidence. 19 record that would support these two particular counts. THE COURT: 20 21 24 25 All right. Who's going to reply to that for the government? MR. COONEY: 22 23 I don't think there's probable cause in the I will, Your Honor. If I could just -- looking for one exhibit if I may. it is. So the government put into evidence on this count Here 1073 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 173 of 214 1 Government's Exhibits 12 and 13. 2 just as Mr. Eastepp said, and I just want to give one example of 3 a case -- of a report that Agent Sirles testified about, 4 Government's Exhibit -- I believe this is 13A. 5 THE COURT: 6 MR. COONEY: Those are the two case files, Okay. And the exact question was, "The report 7 says on February 1, 2011, DHS-OIG conducted a registration 8 check." And the question of Agent Sirles was, "Is that true?" 9 Answer: "No, it is false." 10 11 12 And as she explained during her testimony, the reason for her knowledge of that is her review of the TECS records. Mr. Eastepp's argument with respect to falsity is something 13 with respect to: Hey, all this stuff happened. 14 dates are wrong. Dates don't matter. 15 It's just the Well, with respect to dates and with respect to their 16 importance, the only evidence isn't Agent Sirles' testimony. 17 The record is replete with the significance to dates to criminal 18 investigations, which as I said -- which, by the way, is not 19 even an element of the offense. 20 emphasize the fact that simply having the wrong date is not a 21 minor issue. 22 But I point out to say -- to It's important to a criminal investigation. This document is a false document. It's in a case file that 23 was assigned to Marco Rodriguez. It's in a case file that was 24 selected for the inspection. 25 checks by Marco Rodriguez that were run on September 7, 2011, The TECS checks -- there are TECS 1074 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 174 of 214 1 with respect to this particular check, which is five days in 2 advance of the inspection. 3 from Robert Vargas, intrinsic to the conspiracy that the 4 defendant in that time period, specifically August 31 or 5 September 1, 2011, approached him and asked him to do exactly 6 what is in an MOA like this, to backdate them, put in 7 investigative activity, spread the dates out. 8 that within a week of the time period of the TECS report that 9 was run by Marco Rodriguez which reveals this information. 10 And there is testimony, importantly He agreed to do There is no requirement under the law that the defendant and 11 Marco Rodriguez be friends, and there is no requirement under 12 the law that we present direct evidence versus circumstantial 13 evidence versus what have you. 14 is that there was an inspection pending, that the defendant had 15 a motive to obstruct it, that he instigated that through 16 conversations with many different of his employees, and that 17 specifically with respect to the inspection, explicitly direct 18 evidence from Robert Vargas that he and Wayne Ball agreed to do 19 that. 20 What we've put into the record And then, of course, this evidence, circumstantially through 21 the Marco Rodriguez case file, that this was actually done by 22 Marco Rodriguez and safely within -- intrinsic to the 23 conspiracy, the jury can infer that an agreement was made 24 between the defendant and Rodriguez. 25 This was just one MOA. I note that I went through a handful 1075 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 175 of 214 1 with Agent Sirles that were demonstrably false through the TECS 2 records. 3 inference, and certainly enough to overcome the light burden of 4 Rule 29. THE COURT: 5 6 2? MR. COONEY: 6. What about on 315 or criminal investigation Because aren't the counts limited? 7 8 Certainly -- certainly enough for a jury to make an So this would be -- this would run to Count And so you're asking about case file 315? THE COURT: 9 MR. COONEY: 10 Yes. Certainly. Count 2? Yes. So that would 11 be the TECS check -- make sure I've got the right -- hold on. 12 Yeah. 13 we put in through Agent Sirles a report with an MOA purporting 14 to conduct a TECS check on November 14, 2010. 15 records related to her through NCIC, I believe. 16 presented the TECS records through Agent Sirles that, in fact, 17 no check was even made in 2010 at all by Marco Rodriguez. 18 the further testimony I'd point out, that her review of the case 19 file reviewed no documentary evidence of the checks -- check 20 ever having been run at that date. 21 This is case file 315, Government's Exhibit 12A, in which Or actually it's And we And So same argument as with respect to the last one. 22 Demonstrably false document. TECS check run, as I point out 23 here, 9/12/2011. 24 then all the other evidence that I testified about the defendant 25 approaching other individuals, asking them to agree to do That is the eve of the inspection, and -- and 1076 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 176 of 214 1 exactly this type of work. 2 THE COURT: 3 MR. COONEY: Wait a minute. Isn't that a different case? This is -- this is case file -- yes, this 4 is a different case. 5 Count 4, I believe was your question, wasn't it, Your Honor? THE COURT: 6 7 Well, I guess the problem I'm having is this page says 315 is Jonathan last name unknown. 8 MR. COONEY: 9 THE COURT: 10 13 Right. And the next page -- put that one down -- says it's for Aurelio Gomez. MR. COONEY: 11 12 This is case file 315 which pertains to Oh, pardon me, Your Honor. sure I make my record clear. So this Aurelio Gomez. Let me make Thank you. I'm not sure exactly what her status 14 was. I think she was a witness in the investigation, but it's 15 in the case file. 16 Jonathan LNU case purports to do is to locate records pertaining 17 to Aurelio Gomez. But in any event, what this report in the 18 THE COURT: 19 MR. COONEY: All right. So it's part of the -- It's part of that case file, that is 20 correct. So what I just put up, Government's Exhibit 13 -- 21 excuse me, 14B are the TECS checks for Aurelio Gomez. 22 MR. EASTEPP: 23 THE COURT: 24 MR. EASTEPP: 25 I have a quick response to that. Go ahead. Which is simply they still have to prove the mens rea for these two counts. You can't impute mens rea 1077 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 177 of 214 1 out of the conspiracy, which is what he's saying, from Vargas 2 somehow onto this. 3 mens rea, aided and abetted by Marco Rodriguez to violate this 4 statute and these -- 5 THE COURT: They still have to prove my client had the Well, let me ask you this: Can I -- not I. 6 Can the jury get sufficient mens rea from the fact that not only 7 is the investigation allegedly backdated, but aren't both of 8 those, don't they contain his signature over a backdated date? 9 10 MR. COONEY: Yes. MR. EASTEPP: There's also in evidence that I showed 11 Della Saenz the very same thing. 12 was just an error. 13 government wants it to be falsification or an error when the 14 government wants it to be an error. 15 the intent that the people, when they signed the documents, they 16 were intending on putting a false document in the record, not 17 just because there's some wrong date on it. 18 MR. COONEY: And she had to admit, well, it I mean, it can't be falsification when the They still have to prove There is sufficient record evidence for the 19 jury to infer intent based on the motive to impede the 20 investigation -- excuse me, the inspection testified to by J.R. 21 Flores just this morning about the conversation he had with the 22 defendant on the eve of the inspection, and the defendant 23 concerned about what was going to happen because responsibility 24 for this particular inspection rested with him and a -- along 25 with all the other testimony I mentioned before from the other 1078 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 178 of 214 1 agents. THE COURT: 2 3 All right. I'm going to deny the motion with regard to Counts 4 and 6. MR. EASTEPP: 4 I think next it may make sense to go to 12 5 and 13 because they're the -- it's the same act, I think, that's 6 alleged in both counts. 7 statutes, which are the destroying case review sheets. 8 9 It's just that it's two different Again, there's no evidence in the record that my client destroyed anything. The leap they're trying to make is a huge 10 leap. 11 official proceeding. 12 was their attempt with Ms. Hinojosa. 13 didn't know -- didn't really recall when this -- the travel 14 orders came down where supposedly she then goes into my client's 15 office and says, "People are going to the grand jury." 16 didn't acknowledge really remembering the date. 17 obviously could have and didn't bring forth those documents. 18 You know, they have to prove some nexus under 1512 to the I think they tried to do that. I think it But even she said she She The government And as we all know now, after going over the issue with the 19 tape recording, that it's a discrete date of the -- between 20 January 25th and February 12th -- February 9th when my client -- 21 in the morning when he goes out on admin leave that the act had 22 to occur within there. 23 Well, they -- they put the video in. Of course, Special 24 Agent Green had testified there were about a hundred of those 25 things missing. They put a video in that only showed, as 1079 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 179 of 214 1 Ms. Hinojosa counted, she had about ten or 11, I think was her 2 count, case files in her arms. 3 she didn't take anything out of case files or destroy anything 4 or help my client take anything out of a case file. 5 And she put in the record that So this leap that they went missing and my client did it, 6 there's just -- there's no connection there. Special Agent 7 Green also said that his initial reaction was to blame the 8 intern and Ms. Hinojosa and not my client. 9 think as to those two counts, they never proved my client had And so there's -- I 10 any -- did it, much less had the intent to do it in either one 11 of those counts. 12 MR. COONEY: I think the record evidence on this point 13 is that on January 25, 2011, Vargas and Healey were approached 14 by the FBI, and they made a phone call to their supervisor, Dave 15 Green, who made a supervisor -- made a phone call to his 16 supervisor, Frank Beauchamp. 17 called Vargas that very day inquiring about having been 18 approached by the FBI. 19 other than the two approached witnesses, were aware of the 20 existence of the investigation. 21 And we know this because Beauchamp So we know that individuals at DHS-OIG, We know that in late January 2011, from the testimony of 22 Ms. Hinojosa, that agents were being summoned to appear before 23 the grand jury; that she revealed this to the defendant, and 24 that he was nervous. 25 And we know that the supervisory case review worksheets were 1080 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 180 of 214 1 removed from the files sometime between the middle of November, 2 2010, and sometime in late February, perhaps early March 2012 -- 3 thank you. 4 Mr. Kidd just corrected me. I think I said November 2010. 5 They disappeared sometime between November 2011 and late 6 February or early March 2012 based on the testimony of David 7 Green. 8 9 And also within the record is testimonial evidence that agents, up until Dave Green joined the office in November of 10 2011, no case reviews were done with the defendant. 11 were confronted by David Green with case review worksheets that 12 recorded case reviews that these agents testified that they did 13 not participate in at all, raising red flags for David Green, 14 causing him to even create his own case review worksheets. 15 That they The point being is that -- and incidentally, testimonial 16 evidence throughout the case about the importance of updating 17 the case review sheets with respect to the inspection. 18 The point being is that the defendant had the motive to 19 remove them after it was revealed to him there was a grand jury 20 investigation, that he was concerned that they were looking into 21 him, and that those case review worksheets may very well have 22 been falsified based on the testimonial evidence from the 23 government witnesses about never having participated in the 24 investigations. 25 THE COURT: Is motive and opportunity enough? 1081 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 181 of 214 MR. COONEY: 1 2 commit the crime? 3 offense. No. Not sufficient to They're not even elements of the However -- 4 THE COURT: 5 MR. COONEY: 6 Motive and opportunity? That's why I'm asking. I mean -- No, but what I'm trying to prove, I think the point was that -THE COURT: 7 I mean, I think Mr. Eastepp's point is what 8 do you have that anywhere -- I mean, did Defendant have a motive 9 to do it? 10 Yeah. If those sheets were false, I mean, he clearly had a motive to get rid of them. 11 MR. COONEY: 12 THE COURT: Uh-huh. And if nothing else, the video that you 13 showed clearly shows he had the opportunity because he and 14 Ms. Hinojosa could walk in and out of that file room at will. 15 16 17 18 19 MR. COONEY: And so what we have -- pardon me, Your THE COURT: But what do we have other than motive and Honor. opportunity? MR. COONEY: We have evidence that on January 24, 2012, 20 and January 25, 2012, Government's Exhibits 20A and 20B, the 21 defendant specifically seeking out from Ms. Hinojosa or 22 forwarding to Ms. Hinojosa a list of the cases to be inspected 23 from back in September of 2011, a facially odd request. 24 incredible circumstances of January 25, 2012, the video showing 25 files being carried to the conference room. And the And I don't want to 1082 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 182 of 214 1 over-argue the video. 2 happened on January 25, 2012. 3 incredible circumstance here of files being carried out. 4 two minute period, we get 11. 5 the case file room 25 times -- or, excuse me, 20 times that day. 6 That could be 300 files. 7 We're not alleging necessarily that it But we certainly show an Over a She entered the conference -- or The time frame in which they're gone, and essentially from 8 the record testimony, the people who -- and from Defense Exhibit 9 No. 9, the people who entered the case file room are Mandes and 10 Hinojosa. 11 on which there's no record evidence that he would have any 12 reason to remove the case review sheets. 13 Hinojosa specifically denied it. Mandes is an intern So I think certainly the motive and opportunity coupled with 14 the time frame linked the defendant directly there. 15 sufficient for a jury to infer that it was the defendant and no 16 one else who removed the supervisory case review worksheets. THE COURT: 17 18 19 20 All right. Certainly I'm going to think about that one. What's next, Mr. Eastepp? MR. EASTEPP: May be easier just to lump them in 21 together, for lack of a better term, which is Count 1, the 22 conspiracy count, Count 2, which is going to be the Vargas and 23 Ball count, and then 10, which is going to be the Edwin Castillo 24 count, and Count 11 which is going to be the Roland Gomez count. 25 Well, first it may be easier if I back up to the Castillo 1083 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 183 of 214 1 count first, which is Count 10. As the documents reflect and 2 the testimony from him reflected that, you know, he was tasked 3 simply with closing out this file. 4 memo. 5 last version of the memo, as I showed the jury as to what was in 6 that discrete case file at that discrete moment he closed it or 7 was writing his memo, that the phrase he didn't like, which was 8 "in the ensuing days and weeks," that if you did the math, that 9 was 15 days, and the records in the file that something had been He took it, wrote this short He says that my client changed the memo. But even the 10 done in 15 days; and therefore, that phrase was not wrong. 11 may be fancy, but it's not wrong or incorrect. 12 he answered on cross that he might be mistaken now that he's 13 been confronted with those facts. 14 It And ultimately So that particular one, I don't think that he -- he 15 certainly didn't have the intent to violate the law. 16 what he's testified to. 17 on the other side, meaning aiding and abetting on the innocent 18 side of aiding and abetting, saying my client was the bad guy in 19 there and that he had done the changes. 20 what the changes were, they were not incorrect. 21 particular count, I don't think the government sufficiently 22 proved enough evidence for it to go to the jury. 23 MR. KIDD: That's It was I guess the aiding and abetting But when you look at So that Your Honor, with regards to Count 10, not 24 only did we hear from Mr. Castillo, who testified that he had 25 not done the work documented in -- in the MOA, but the defendant 1084 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 184 of 214 1 himself hadn't informed him if anybody else had, and the 2 defendant never told him he had, in fact, had done the work. 3 What Mr. Castillo testified to was that without ascertaining 4 who had done the work documented in the MOA, he signed it. 5 Afterwards he had reservations about what he had done, and then 6 he disclosed that information to Mr. Izzard. 7 What defense counsel is not mentioning is the fact that the 8 individual who actually got the original report documented in 9 criminal case file 414, Richard Villarreal, got on the stand and 10 testified that what is contained in the MOA drafted by 11 Mr. Castillo, which I've placed on the overhead, is false. 12 Because contrary to what it says here and what the defendant 13 instructed Mr. Castillo to draft, agents of DHS-OIG, Special 14 Agent Ball and Special Agent Camillo Garcia did, in fact, track 15 down the identity of the individual who made the complaint in 16 this case. 17 Furthermore, Edwin Castillo testified that he drafted that 18 document, this MOA, on or about February of 2011. 19 down to the signature block here, we'll see that it's dated 20 January 19th, 2010. 21 the defendant, Your Honor. 22 And if we go Both Mr. Castillo signed that and so did I believe there's -- there's plenty of evidence in this case 23 for a jury to find that the defendant, aided and abetted by 24 Mr. Castillo, did, in fact, create a falsified MOA and have it 25 placed in a criminal investigative file. 1085 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 185 of 214 THE COURT: 1 2 I'm going to deny the motion regarding Count 10. MR. EASTEPP: 3 Count 11 is first, which is the Roland 4 Gomez count. 5 insufficient evidence to show beyond -- the standard at this 6 point that there's sufficient evidence to go to the jury. 7 think it was simply a series of misunderstandings. 8 Special Agent Gomez is not believable on the point that he 9 informed my client in the hallway that -- as to who was taking 10 Again, I believe the government presented I I think the woman to the bridge. 11 So when the review happens days later, the exchange of 12 information, my client had no idea that -- who it was and, 13 therefore, just assumed that it was Special Agent Gomez, as the 14 handler of the informant, had been the one that took her to the 15 bridge. 16 that count. So I think it's insufficient evidence at this point for 17 THE COURT: 18 MR. KIDD: Mr. Kidd? Your Honor, defense counsel is making a 19 credibility assessment. The government has presented evidence, 20 and that is testimony of Special Agent Gomez, who has told the 21 jury that he was instructed by Defendant to change the names of 22 the special agents who transported the confidential source to 23 the port of entry in Hidalgo; that he had correctly drafted a 24 memo. 25 taking out the correct information. The defendant edited that MOA that had false information, Special Agent Gomez 1086 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 186 of 214 1 confronted the defendant, told him that what was in there was 2 wrong. 3 You need to do what I say because that's what headquarters 4 wants. 5 directed him to do. 6 MOA. 7 investigative file. 8 9 The defendant acknowledged that that doesn't matter. Special Agent Gomez then did exactly as Defendant That was place false information into an That MOA was then placed into an open criminal Furthermore, we've heard from Special Agent Della Saenz confirming that what Special Agent Gomez had originally placed 10 in the MOA was factually correct; that she and Special Agent 11 Marco Rodriguez had transported the source to the port of entry 12 and notified Special Agent Gomez that they had done so. 13 Further, we heard the testimony of J.R. Flores who confirmed 14 once again that it was Special Agent Saenz and Special Agent 15 Marco Rodriguez who had transported the source to the port of 16 entry. 17 had been taken out by the two special agents, he came back into 18 the office. 19 away from the office, Special Agent Gomez was still there. 20 himself was there and so was defendant. 21 He also testified that at that point after the source While the source is being transported out of -He So Defendant -- there's evidence in the record that 22 Defendant was aware that what he was telling Special Agent Gomez 23 to do was false. 24 government has met its burden at this point, Your Honor. 25 Special Agent Gomez did it. THE COURT: Okay. Therefore, the I'm going to deny the motion as to 1087 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 187 of 214 1 11. MR. EASTEPP: 2 And as to Count 2, which is the Vargas and 3 Ball count. What they've failed to prove in this particular 4 count is -- these are the unusual counts that we have Edwin 5 Castillo signing these MOAs, and he doesn't remember why he 6 signed them. 7 time where it's clear in the record that there's a huge flow of 8 paperwork going to my client. 9 Edwin Castillo count -- MOAs or any of these other MOAs related They're signed days after the events at a point in There's no proof whether it's the 10 to this count. 11 that that's -- that these were false documents and were not just 12 simply he's signing MOAs that are flowing through to him through 13 the process in the office. 14 15 That my client knew at the moment he signed them So I believe as to these counts, the government failed to prove or reach their burden. 16 THE COURT: 17 MR. KIDD: Mr. Kidd? Your Honor, this is -- Special Agent Vargas 18 testified about this. He explained that this whole series of 19 reports in the Manny Peña filed were created at Defendant's 20 direction. 21 He sent those reports to Defendant for review. 22 reviewed the reports. 23 Vargas. 24 signed by agents in the office to make it appear as if criminal 25 investigative work had been done during a time period when, in Defendant instructed him what to do. He did that. Defendant They were sent back to Special Agent They were printed out, and the defendant had them 1088 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 188 of 214 1 fact, nothing had been done. 2 defendant asked Special Agent Vargas to do. 3 This was exactly what the So to make a leap from there to there's no way the defendant 4 could have thought that's what he was doing is illogical. 5 is exactly what defendant asked them to do. 6 Castillo got on the stand and testified that in the office from 7 time to time, agents signed on behalf of others. 8 brought you a report and asked for the signature, you did it, 9 and you didn't question the work that was done. 10 11 12 13 This And Special Agent If the AO Your Honor, the government at this point has met its burden for Rule 29. THE COURT: Okay. I'm going to deny defendant's motion as to Count 2. MR. EASTEPP: And lastly, which is Count 1, of course, 14 the conspirators are alleged to only be Marco Rodriguez, Robert 15 Vargas and Wayne Ball. 16 I made as to Counts 2, 4 and 6, the Vargas, Ball counts, and 17 then the two Marco Rodriguez counts as to the various 18 infirmities I pointed out in those counts; that the defendant, 19 my client, could not have been conspiring with these individuals 20 as detailed in this count. 21 MR. COONEY: And I would just resubmit the arguments I am prepared to submit, but am also 22 prepared to answer any questions Your Honor has. 23 touched upon these -- this count. 24 25 THE COURT: argument. I believe I Why don't you just reply to Mr. Eastepp's 1089 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 189 of 214 MR. COONEY: 1 Certainly, certainly. Which is this -- 2 Mr. Vargas testified about the conference room episode, and he 3 specifically stated that at the end of that meeting with the 4 defendant and Ball, the three had agreed to falsify 5 investigative reports, and they were doing so in order to fill 6 gaps of an investigative activity in advance of the inspection. 7 As I outlined with respect to Counts 4 and 6, there is 8 identical conduct within the case file designated 315, the 9 Jonathan LNU case, and case file 1086, the unknown case. There 10 is no requirement under the law that co-conspirators necessarily 11 know of the existence of all the co-conspirators. 12 must be unified in their objective and have a reasonable 13 understanding that there may, you know, be other co-conspirators 14 essentially. 15 They simply There is record evidence replete with that from which a jury 16 can infer that there is a conspiracy. 17 the defendant on trial here. 18 between him and Vargas, we are successful with respect to that 19 count. THE COURT: 20 21 24 25 So if we prove the agreement Criminal investigation 1, is that the Manny Peña? MR. COONEY: 22 23 Also I just note, it's That is the Manny Peña case, yes, Your Honor. THE COURT: as well. All right. I'm going to deny it as to one 1090 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 190 of 214 1 2 Let me jump back for a minute. Counts 12 -- 12 is the -- 1512(c) count? 3 MR. COONEY: 4 THE COURT: Yes. And I -- it's not one I've ruled on, and 5 it's one I said I -- but before I leave it, just to help my 6 thinking along, we have a -- for lack of a better term, a three 7 month gap, window, if you will, at which the government claims 8 basically at any time the defendant could have removed these 9 documents, the case review sheets. 10 11 But do I really have a three month window? And here's the reason. If -- if 1512 requires the nexus, 12 and basically the nexus being that at the time that they were 13 destroyed, that he knew about the proceeding, I mean, isn't -- 14 isn't the window necessarily from late January to February? MR. COONEY: 15 Yes. I don't dispute that. It is from 16 then up until the time he was placed on administrative leave, 17 which is -THE COURT: 18 19 Okay. If that's the case, if he destroyed them in December, is he not guilty? MR. COONEY: 20 I actually would not concede that. And I 21 don't mean it to be cute, Your Honor. 22 cute. 23 doesn't require that the grand jury investigation be open at 24 that point, but that it be -- 25 I don't mean it to be But I also -- because of on or about, and I think the law THE COURT: Doesn't he have to have knowledge of 1091 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 191 of 214 1 something? 2 MR. COONEY: 3 THE COURT: 4 Yes, yes. He's got to have knowledge that something's going on. 5 MR. COONEY: 6 THE COURT: Yes. To be a 1512. It might be a 1519. Now, it might be something 7 else. 8 a 1512, I've got to have a time length, don't I? MR. COONEY: 9 It might be something else; but for But -- and it's charged in the indictment 10 between there. 11 is a matter of -- that's a classic factual argument for the 12 jury. 13 this is the window, January 25 to February 9. 14 anticipate the defendant would argue is: 15 from Dave Green. 16 in late February. 17 for other people to do it. 18 But that time frame that I'm talking about, that Believe me, we are going to be arguing in close: Look, And what I Hey, look. You heard He saw them in November, and he saw them again There's a lot of other opportunities there But that's a classic factual issue. There is -- based on the evidence we have put forth about 19 what the defendant knew and when he knew it, his motive and his 20 opportunity, there is sufficient evidence for a jury to infer 21 that he had intent and that, in fact, that he did it. 22 THE COURT: Let me back up then. Let's assume you've 23 convinced me enough that I deny Mr. Eastepp's motion. If I 24 charge -- or not if, when I charge the jury on this count, 25 shouldn't I limit it to late January? 1092 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 192 of 214 MR. COONEY: 1 Well, I think the indictment already limits 2 it insofar as on or about January 25 to on or about February 9. 3 And the instruction that the government must prove beyond a 4 reasonable doubt some nexus between the obstruction and the 5 official proceeding I think in and of itself essentially limits 6 that. 7 THE COURT: 8 MR. COONEY: 9 Okay. What I would oppose is a specific instruction that says -- that would suggest to the jury you must 10 find that it happened on a specific date, because they don't 11 need to find that, and it may have happened over several days. 12 But certainly -- 13 THE COURT: I'm not arguing with you on that. But I'm 14 just -- my question was basically doesn't he have to have 15 knowledge of the proceeding? 16 MR. COONEY: Well -- 17 MR. EASTEPP: 18 MR. COONEY: That's the nexus. There has to be a nexus. There has to be a 19 nexus, and so -- and we are certainly going to argue that he had 20 knowledge of the proceeding. 21 THE COURT: All right. Let me jump back to the 22 conspiracy count, and this is just like my last question. I'm 23 really soliciting information here. 24 denied Mr. Eastepp's motion, but we're going to charge the jury 25 on a conspiracy, and we normally would say, you know, something In this case I've actually 1093 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 193 of 214 1 like, you know, did he commit or did somebody help him commit 2 the overt acts as expressed in the indictment. 3 Now, the jury is not -- they're not going to have a copy of 4 the indictment. 5 paraphrase of each of the overt acts, and -- but I would try 6 obviously for fairness to both sides to make it as neutral as 7 possible, just referencing them to the alleged overt acts. 8 Having said that, and that's -- let me ask a predicate 9 10 11 12 question. Usually in this case, I would give them a Can criminal investigation 4 and 5 be considered in the overt acts? MR. COONEY: referring to the Gomez and the Castillo files? 13 THE COURT: 14 MR. COONEY: 15 THE COURT: 16 17 18 19 20 We want to confirm, but I think you're Well, here's the reason. Right. But I'm not anticipating an argument. MR. EASTEPP: J.R. Flores. To remind you, 4 and 5 are Della Saenz and They're not Roland Gomez. MR. KIDD: I think -- I think you may be referring to criminal investigation 6 and 7. THE COURT: 22 MR. EASTEPP: 23 MR. KIDD: 25 But if I've struck counts -- for instance, Counts 5 -- 21 24 I mean, yes. Have I not turned the page? They are listed as overt acts. Yes, criminal investigations 4 and 5 are part of the conspiracy, Your Honor. MR. EASTEPP: Page 14 and 15 of the indictment. 1094 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 194 of 214 1 THE COURT: 2 MR. KIDD: 3 THE COURT: 4 MR. KIDD: Well, 4 and 5 are what then? Della Saenz and J.R. Flores, Your Honor. What about -- you're saying 6 and 7? 6 and 7, Your Honor, are Edwin Castillo and 5 Rolando Gomez. Those happened in early 2011 before the 6 inspection, well before the inspection. 7 MR. EASTEPP: 8 THE COURT: 9 MR. EASTEPP: THE COURT: 10 11 at 5. Ah. They're not alleged to be. I was going to say, my conspiracy only stops That was part of my problem. Okay. 12 So they're not part of the conspiracy. All right. Here's what I want to do. 13 to stay here and work. 14 have hotels. 15 Why don't you come back -- it's 2:35 now. 16 4:35, and I'll have a draft for you. 17 work with it. You're welcome You're welcome -- I assume both of you You're welcome to go back to the hotel and work. Come back about 4:30, I'll let you take it home, I'd like you back here at basically at 8:30 so we can start 18 19 at 8:30. 20 I want to do is, as I told you a couple days ago, is work with 21 it. 22 sides will agree with everything in there, but -- and then I'll 23 get it in enough shape, and that will still give both sides time 24 enough to object to it before we have argument. 25 So be back here about 8:20 so we can start. Let's get it right. And what And it doesn't mean necessarily both For your purposes, working purposes tonight, you know, let's 1095 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 195 of 214 1 assume that 12 and 13 are going to be in there just because it's 2 always better to assume the worst-case scenario, and then you 3 won't be surprised if it's less than you have intended. 4 in a couple hours, I can have a good working charge for you. I think 5 All right. Anything y'all need? 6 Now, if you want to -- there is one thing you can do. You 7 can do it now or you're going to have to do it tomorrow 8 afternoon if you don't do it now, and that is let's get the 9 exhibits. 10 11 Get with Cristi and get those all lined up so that we're not running around tomorrow trying to get them. Okay. See y'all in a couple hours. 12 MR. KIDD: 13 MR. COONEY: 14 15 16 Thank you, Your Honor. Thank you, Your Honor. (Recess taken from 2:37 to 5:48 p.m.) THE COURT: All right. Be seated. Mr. Eastepp, if you're not going to wear a coat, it's stupid 17 to not wear a tie. 18 All right. Or to wear a tie. As I said, I'm not reneging on you. I'm going 19 to let you look at these tonight if there's more that you want 20 to look at. 21 at least an hour or more than I had anticipated and you've had a 22 chance to look at at least the instructions, are there any 23 suggestions for making them better? 24 25 But since we've drug this out a little bit longer, And having said that, I will take everything in the vein that it's constructive criticism. So either side weigh in? Go 1096 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 196 of 214 1 2 ahead, Mr. Cooney. MR. COONEY: Thank you. So just a few. We caught a few 3 kind of typographical issues if you want me to address those as 4 we go as well. 5 THE COURT: Sure. Let's do those as we go through 6 because we really were bringing these out as soon as we got them 7 done, so our proofreading really has not happened. 8 9 MR. COONEY: We can go through page by page. But page 2, fourth line from the bottom, it reads, "Government's 10 Exhibit No. 7," and we think that should read Defendant's 11 Exhibit No. 7. 12 THE COURT: 13 MR. COONEY: 14 THE COURT: 15 Call it what it is. 16 MR. COONEY: 17 THE COURT: 19 MR. COONEY: 20 THE COURT: 22 23 All right. And then -That wasn't a typo. That was a mistake. So then page 8, overt act No. 5, it reads Ignacio Flores, and that is Eraslio. 18 21 Oh, okay. E-R? E-R, yes. You know, I asked him how he got the nickname J.R., but I've never asked you why you were called J.P. MR. COONEY: Joseph Patrick. There are too many Josephs in my family, Your Honor. 24 MR. EASTEPP: 25 MR. COONEY: It's actually, I think, E-R-A-L-S-I-O. That is correct. It is E-R-A-L-S-I-O. 1097 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 197 of 214 1 THE COURT: 2 MR. COONEY: 3 THE COURT: there. 10 It should be LNU. I changed that once. That snuck back in That is page 10, Your Honor, Count 4 in the blocked off. THE COURT: 8 9 And on page 10 -- first just one other typo What page is that? MR. COONEY: 6 7 Continue on. in the Count 4 involving Jonathan LVU. 4 5 Okay. place. Okay. Oh, yeah. Oh, I caught it in a different Sounds like a new Law and Order show. Law and Order LVU. MR. COONEY: 11 And then we request just with respect to 12 each of these, though, Count 2, 4 and 6. 13 is parroting the language in the indictment; but as the verdict 14 form reflects and as -- it's charged obviously in the 15 conjunctive, but that is they can be proved up in the 16 disjunctive. 17 of activity and false entries in the case file be switched to 18 "or." So we could just ask that "and" between memoranda 19 THE COURT: 20 MR. COONEY: 21 THE COURT: 23 MR. COONEY: 25 Okay. Because the jury does not need to find both. 22 24 We recognize that this That's correct. And so that would repeat in Count 2, Count 4, Count 6 and Count 10. And in addition, you can -- if I'm going too fast, obviously 1098 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 198 of 214 1 please just tell me to stop talking. THE COURT: 2 Look at Count 10 for a minute, Mr. Cooney, 3 Mr. Eastepp, where it says "memoranda of activity or" -- we'll 4 now make that an "or," and a -- should that be singular, report? 5 MR. COONEY: Exactly. 6 THE COURT: All right. 7 MR. KIDD: That was our next comment. Your Honor, with respect to Count 11, it says 8 "knowingly falsified a memorandum of activity and an abbreviated 9 report of investigation." I don't believe we -- we did not put 10 in a falsified abbreviated report of investigation, so we can go 11 ahead and take that out. 12 count. THE COURT: 13 14 It should just read MOA for that And then after that AROI, should that be an "or"? 15 MR. KIDD: Yes. 16 THE COURT: 17 MR. COONEY: That would be correct, Your Honor. Okay. And so to be frank, Your Honor, I think 18 we're done with suggestions up until -- but we only got to page 19 15, so we haven't had an opportunity to read the aiding and 20 abetting instruction and the instruction regarding 21 deliberations. 22 THE COURT: 23 MR. COONEY: 24 THE COURT: 25 AROI, do we not? Well, let me back up for just a second. Oh, absolutely. On page -- now, in Count 10, we do have an 1099 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 199 of 214 1 MR. KIDD: 2 THE COURT: All right. 3 4 All right. Just wanted to make sure. So is that basically everything up to page 15 MR. COONEY: Yes. We have a few other suggestions, but in terms of this document, yes, to page 15. THE COURT: 7 8 Okay. that you found at least? 5 6 That's correct, Your Honor. I'm willing to listen to suggestions now since we're all here. MR. COONEY: 9 Certainly. First I think the first is that 10 simply -- as we read these, we would just -- I know we've 11 discussed it once, but we would like to renew our request that 12 Your Honor renumber the counts in the indictment. 13 lot of instructions here. 14 there are certainly a handful of them. 15 ponder, you know, why the indictment contains counts the way it 16 is. 17 them in order, one, two, three, four, and for the verdict form 18 to read that way as well. 19 20 There are a There's not a ton of counts, but The jury is not to It just seems like it would be more logical for them to get THE COURT: And I assume, Mr. Eastepp, you prefer it to remain the way they are? 21 MR. EASTEPP: 22 THE COURT: That's correct, Your Honor. All right. I'm going to leave them the way 23 they are, although I think I will add -- I'm looking for the 24 paragraph where we talk about there's a separate count in each 25 charge, an instruction to say they should basically not be 1100 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 200 of 214 1 confused by the numbering or whatever. MR. COONEY: 2 3 Correct. that. 4 MR. EASTEPP: 5 THE COURT: 6 We would ask that you insert Top of page 2, is it, Judge? I mean, it could go there, but that really wasn't the paragraph I was looking for. MR. COONEY: 7 We would ask to get it closer to the 8 counts. I think what Your Honor was suggesting was in the 9 multiple counts instruction perhaps? 10 THE COURT: 11 MR. COONEY: 12 Yes. And that is on page -- the bottom of page 5. 13 MR. EASTEPP: 14 THE COURT: Page 5, right. All right. Here's what I'm thinking about 15 saying. 16 you may find a defendant guilty or not guilty of one of the 17 crimes charged in the counts should not control your verdict as 18 to any other. 19 counts seem to be missing, as the ones not mentioned here are 20 not applicable to this trial." 21 Do not -- after that, the last sentence, "The fact that Do not be concerned with the fact that some Everybody all right with that? 22 MR. KIDD: Yep. 23 MR. COONEY: 24 MR. EASTEPP: 25 THE COURT: We're okay with that. Yes, sir. All right. Okay. What's next, Mr. Cooney? 1101 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 201 of 214 1 MR. COONEY: Just one other thing on page -- actually 2 just -- I was -- we were kind of pondering this as we were 3 standing here. 4 mean, I suppose we should put in language, but it just seems 5 generally on pages 13 and 14, we should insert a sentence 6 perhaps right before the instructions begin to describe the 7 attempting, to simply make clear that it's an alternative theory 8 of criminal liability. 9 it should be kind of clear on its face because it's one or the 10 11 12 But to be honest with you, I don't know if -- I other, but -MR. EASTEPP: MR. COONEY: 14 THE COURT: 15 MR. COONEY: Does it? Yeah. I apologize. I apologize. MR. EASTEPP: 18 MR. COONEY: 19 THE COURT: 21 It's -- Oh, I'm sorry, Your Honor. 17 20 It does say it in the paragraph that starts "Furthermore." 13 16 You know, that -- it seemed -- I mean, That's from the pattern. Okay. Thank you. All right. Any other suggestions through what you've been able to read? MR. KIDD: Your Honor, we would just -- there's two 22 additional paragraphs if at all possibly we'd like to get -- the 23 government would like to get added. 24 prep paragraph, which would just be your basic, "It's the duty 25 and obligation of the attorneys to meet with witnesses to prep That would be a witness 1102 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 202 of 214 1 for trial." We emailed some suggested language to the Court. 2 THE COURT: 3 MR. KIDD: 4 THE COURT: I'm not willing to say that -Okay. -- in this case because, quite frankly, 5 Mr. Eastepp tried to meet with certain witnesses, and they 6 wouldn't meet with him. 7 and I think you actually offered one, and I'll go back and look 8 at it, something to the effect that it's not wrong or there's 9 nothing wrong with a lawyer meeting with a witness prior to 10 11 But I will say and give an instruction, trial. MR. KIDD: I think we gave you a model instruction from 12 the 7th Circuit, Your Honor. 13 language put in there that it's okay to meet with a witness on 14 numerous occasions. 15 THE COURT: All we would ask is that we have Here's the one you offered from the 7th 16 Circuit. 17 least I hope you did since Mr. Eastepp brought it out time and 18 again, "that certain witnesses were interviewed by the lawyers 19 prior to trial. 20 witness in preparation for trial." 21 "During the trial you may have heard testimony" -- at It is proper for an attorney to interview any I'm all right with giving that. But I'm not going to say 22 it's a lawyer's duty or something, because then it implies that 23 because you didn't do it, there was something wrong. 24 25 MR. KIDD: Your Honor. And the government has no problem with that, But we would ask if you could just, if at all 1103 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 203 of 214 1 possible, modify that just to say that if the attorneys meet 2 with the witnesses on more than one occasion or on numerous 3 occasions, because I think one of the points that was made was, 4 "He met with the government nine times." THE COURT: 5 Well, I think that's legitimate cross, and 6 obviously I think it's legitimate argument from the defense 7 side, that they can argue that, you know, it's one thing to meet 8 with them once. 9 you know, I'm not going to say -- I'm going to go with this. Gosh, they met with them ten times. I mean, 10 MR. KIDD: 11 THE COURT: 12 I'm going to go with this. 13 meeting once or meeting ten times because I -- you know, I think 14 that's fair fodder for argument. MR. KIDD: 15 16 Okay. I'm going to put it in the right tense, but I'm not going to make a comment on Thank you, Your Honor. There's a second instruction. I honestly don't have the 17 language here at this moment, but it's a consciousness of guilt 18 instruction. 19 that. We can -- we'll try to get something together on 20 THE COURT: 21 MR. KIDD: 22 23 24 25 It's the what? Consciousness of guilt. We had not submitted anything on that to the Court yet, Your Honor. MR. EASTEPP: Well, that's in the Fifth Circuit pattern, and that's the thing they tell you not to give unless it's -THE COURT: Let me know when you find it. 1104 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 204 of 214 1 MR. EASTEPP: 2 THE COURT: 3 MR. EASTEPP: Yes, sir. Do you have a page number there? Yes, it's Fifth Circuit Pattern 1.37, 4 knowingly to act. It's the blocked in. 5 definition of the word knowingly, it's the blocked in paragraph 6 in the pattern under it. 7 version that I grabbed. 8 THE COURT: 9 MR. EASTEPP: THE COURT: 11 MR. COONEY: 12 MR. EASTEPP: 14 Yeah, and it may -- this is the older I'm not seeing what you're looking at. 10 13 After just the simple I'm holding the hard copy of the 2001. Oh, okay. I'm looking at the 2012. We have the 2012 too, Your Honor. This one does cite all the case law in the Fifth Circuit just to show y'all on that. MR. COONEY: Oh, but actually this is the deliberate 15 ignorance, which is not what we're requesting, which is now set 16 off as 1.37A. 17 18 THE COURT: I can promise you, I'm not giving deliberate ignorance. 19 MR. COONEY: We're not requesting it. 20 MR. EASTEPP: 21 THE COURT: I guess I misunderstood the term. You're going to have to show me. You don't 22 have to do it now, as long as you do it in the morning, show me 23 what it is you want. 24 25 MR. KIDD: Your Honor, we can get that language sent over to the Court today within the next hour or so. 1105 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 205 of 214 THE COURT: 1 2 MR. KIDD: Okay. THE COURT: 6 MR. KIDD: We'll have it to the Send it to Barbara. She'll still be here. I'm sure she'd be very happy to get it and 7 review it tonight. 8 THE COURT: She'll be holding her breath. Anything else that you can think of right now? 10 let Mr. Eastepp weigh in. 11 MR. KIDD: 12 time, Your Honor. If not, I'll Nothing further from the government at this THE COURT: 13 14 Fair enough. Court by the morning. 5 9 In the next hour I hope to be not here. 3 4 You don't have to do that. All right. Mr. Eastepp, what are your thoughts? MR. EASTEPP: 15 Top of page 4, the paragraph on immunity, 16 the cooperators. 17 what is the pattern 1.14, an immunized witness, and then has a 18 few sentences from 1.15, the accomplice with the plea agreement. THE COURT: 19 20 This paragraph, what you have here is a mix of You are correct. I did that purposely, but go ahead. MR. EASTEPP: 21 All right. It's the -- you know, I did 22 tender, you know, a proposed charge on this where I jazzed up 23 1.14. 24 that says "such agreements have been approved as lawful and 25 proper and are expressly provided for in the rules of the But what I really have a problem with is the sentence 1106 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 206 of 214 1 court." The only way that's a technically correct answer, I 2 think, is when it's real immunity. 3 this is not real immunity -- 4 THE COURT: 5 MR. EASTEPP: Because they have argued What is not -- what is unlawful about it? There's nothing unlawful. The courts do 6 look down upon these, particularly unwritten agreements. I 7 cited the case law including the Ramos decision. 8 discussion in it, where in it, there was at least what was more 9 than a proffer letter, but the Court still said that really -- There's a long 10 you should do -- do a better job than what was written in a 11 letter. Well, this one, they don't even have it in writing. THE COURT: 12 Well, I don't mind shortening that and 13 saying that "Such agreements have been approved as lawful" and 14 put a period if that helps you. MR. EASTEPP: 15 Yeah. It's particularly "as expressly 16 provided for in the rules of the court" that I have a strong 17 issue with. THE COURT: 18 19 it adds all that much for it. MR. KIDD: 20 21 22 23 24 25 I don't mind deleting that. All right. I don't think We'll delete that. The government has no objection to that, Your Honor. MR. EASTEPP: That's all I had. I certainly want more time to look at it as they do. THE COURT: Oh, absolutely. No, I'm speaking -- since I made you wait here, if something was fresh on your mind, we 1107 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 207 of 214 1 could go ahead and fix it now. MR. EASTEPP: 2 We do have some other record things. 3 don't know if your clerk told you to just -- to put on the 4 record about our exhibits. 5 is. 6 THE COURT: 7 MR. EASTEPP: I We're withdrawing stuff, is what it Go ahead. If y'all need to talk, go on. As to my exhibits, to clear up one thing 8 on the hard copy of the exhibit list I tendered to the Court. 9 Originally on the copy that the Court has and the clerk has, 10 Pedraza's Exhibit No. 10 was listed as OJT Manual. 11 withdrawn that exhibit and notified the government I was not 12 going to attempt and simply had -- because I was withdrawing it, 13 used that number for Pedraza evaluations, which were admitted. 14 I had So if the -- the clerk has shown me that's been 15 interlineated on the copy in the Court's file. 16 make sure on the record that I'm saying I had withdrawn the OJT 17 Manual, and it should be Pedraza's evaluation. 18 THE COURT: 19 MR. EASTEPP: She wanted me to Okay. Next I move to withdraw Pedraza's Exhibits 20 11 consecutive through 15. So 11, 12, 13, 14, 15 that were 21 admitted in the February 10th hearing. 22 time. 23 the record. I withdraw those at this They were never put in front of the jury for purposes of 24 THE COURT: 25 MR. COONEY: No objection, I assume? No, objection. 1108 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 208 of 214 1 THE COURT: 2 MR. EASTEPP: 3 THE COURT: 4 That's all I have on that issue, Judge. Any housekeeping from the government's MR. COONEY: Yes. We have -- we move to withdraw Government Exhibits 3 consecutively through 7. 7 THE COURT: 8 MR. COONEY: 9 They're withdrawn. standpoint? 5 6 All right. 3, 4, 5, 6 and 7. Correct. There's 4B and 4C, but those inclusive, yes. 10 THE COURT: 11 MR. COONEY: All right. We also move to withdraw Government 12 Exhibit 16, which was actually never admitted in the first 13 place. 14 Government's Exhibit 19B. 17, which was admitted. 15 THE COURT: 16 MR. EASTEPP: 17 THE COURT: 18 MR. COONEY: We move to withdraw that. And Any objection to any of those? No, sir. All right. They're withdrawn then. And finally, Your Honor, the last kind of 19 housekeeping issue we have is Government's Exhibit 14 was 20 admitted. Today we showed in court Government's Exhibits 14A 21 through D. Those were the summary exhibits created from the 22 TECS reports. 23 admissible under Federal Rule of Evidence 1006 as summary 24 exhibits of objective reports. 25 language. And the government's position is that those are And I can read the pertinent 1109 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 209 of 214 "The contents of voluminous writings, recordings or 1 2 photographs which cannot be conveniently examined in court may 3 be presented in the form of a chart, summary or calculation." 4 THE COURT: 5 MR. COONEY: I thought 14 was admitted. 14 is in. 14 is in. The -- what 14A, B, C 6 and D are are the exhibits that Agent Sirles utilized during her 7 testimony to explain her analysis, which were essentially 8 records within records of Government's Exhibit 14. 9 testified, Government's Exhibit 14 is actually not one that we And as she 10 can put in paper form before the jury because of its volume. 11 is a substantial electronic database. THE COURT: 12 13 14 It So what are we giving them that's labeled 14? MR. COONEY: Well, right now we would -- our proposal is 15 to give them 14A, B, C and D, the summary exhibits. 16 give them a disk, Government's Exhibit 14. 17 records obviously that have been disclosed and whatnot, but I -- 18 A, B, C and D all report objective records from within 19 Government's Exhibit 14. 20 THE COURT: All right. 21 MR. EASTEPP: We could These are all TECS Mr. Eastepp? My objection remains the same as it was, 22 which was, you know, I got it two minutes before it was used. 23 No doubt we've had -- the TECS records were provided in 24 discovery. 25 prepared by the agent, you know, I had just gotten. That's not the issue. But the particular chart I didn't 1110 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 210 of 214 1 object to it for use as a demonstrative aid to guide her 2 testimony. 3 being marked as a formal exhibit. 4 But just for purposes of the record, I object to it MR. COONEY: The jury has seen it. The only thing I would say about that is it 5 is correct that the precise one that we -- ones that we used we 6 provided to the defense just a few minutes before Agent Sirles 7 testified. 8 voluminous form, but also in the extracted form showing the 9 precise things that we presented here in court. 10 However, records were produced not just in the THE COURT: All right. I'm going to sustain the 11 objection. I am going to let you use them obviously in final 12 argument. 13 argument to tell the jury that -- that, you know, to the extent 14 they need to write these down, here they are; and because 15 they're not in evidence, only the big piece is in evidence in 16 this form. 17 them if they want to search the disk. And I'll -- and I think it's fair game in final And obviously we'll have a computer available for 18 But given the fact that he was just given those before 19 trial, I just don't think it's fair to make them exhibits. 20 All right. Any other housekeeping things? 21 MR. EASTEPP: 22 THE COURT: No, sir. All right. I'm going to make the changes we 23 talked about. 24 8:30 tomorrow, let's get back together and finalize this. 25 We'll do that tonight before we leave. And then I'll give you -- again, we'll have a meeting just like we're 1111 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 211 of 214 1 having now as far as trying to get it in good shape, and then 2 I'll give you the final version and let you object. 3 should be in good shape by 10:00 hopefully, knock on wood, when 4 the jury gets here so they're not cooling their heels. 5 And we And as I told you, I will read it but not give it to them, 6 although I will tell them they will get it with the exhibits. 7 And then -- but you'll have -- other than when I read it, 8 invariably I find typos, and I may correct those as I go along. 9 But other than that -- but, you know, at the time you argue, you 10 11 will have what they get. MR. EASTEPP: Can I ask a question about that, about 12 argument? I can refer to the language in the indictment during 13 my argument, right, even though it's summarized in here? 14 THE COURT: 15 MR. EASTEPP: 16 THE COURT: 17 18 Yes, you may. Okay. I don't have a problem with that. Do you have a problem with that? MR. COONEY: To the extent that it's contained within 19 the instructions, we would have a problem with reference to 20 dismissed counts. 21 MR. EASTEPP: 22 MR. COONEY: 23 MR. EASTEPP: 24 25 Oh, yeah. No, no, no, no, no. Things like that. No, I'm talking about in the conspiracy count or in the counts that are live certainly. THE COURT: I'm trying to think. I guess if there's an 1112 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 212 of 214 1 objection, we're going to have to take it up as we go along in 2 final argument. 3 Now, I'll have to say this. 4 of, you know, Special Agent A and Special Agent B, Special Agent 5 C, that kind of thing is kind of hard to follow. 6 I mean, I don't blanketly think of a rule. This indictment, because of its use So I just have always had a problem putting the indictment 7 into evidence. I know some judges do it. But we spend 8 preliminary instructions, voir dire, closing instructions 9 telling the jury that the indictment is not evidence, and then 10 judges put it into evidence, you know, and I just think that's, 11 you know, kind of counterproductive, which is why I don't do it. 12 13 14 But off the top of my head, I can't think of a blanket reason you can't use it. MR. EASTEPP: I'm not talking about extensively. 15 wanted to make sure before I did it. 16 Are you going to -- 17 THE COURT: 18 MR. EASTEPP: 19 20 I just Should we wait tonight? Pardon me? Should we wait tonight for these corrections? THE COURT: No, no, no, no. I mean, I'm going to make 21 the ones you said, but they'll be -- you know, I'm going to 22 already incorporate those, but I'm going to give you a chance to 23 supplement those in the morning. 24 MR. COONEY: 25 MR. KIDD: Okay. Thank you. Thank you, Your Honor. 1113 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 213 of 214 THE COURT: 1 See you in the morning. 2 (Court adjourned at 6:15 p.m.) 3 * * * (End of requested transcript) 4 -oOo- 5 6 7 I certify that the foregoing is a correct transcript from the record of proceedings in the above matter. 8 9 Date: May 23, 2014 10 11 /s/________________________ Signature of Court Reporter Barbara Barnard 12 13 14 I N D E X 15 JURY TRIAL 16 MARCH 13, 2014 PAGE 17 Government rests 1059 18 Defense rests 1069 19 Rule 29 motion 1070 20 Objections to the charge 1096 CHRONOLOGICAL INDEX 21 22 GOVERNMENT'S WITNESSES: 23 24 25 ERASLIO FLORES LAURA SIRLES DIR CROSS RDIR RCRS 906 981 944 1031 972 1052 978 V/DIRE 1114 Case 1:13-cr-00305 Document 150 Filed in TXSD on 05/23/14 Page 214 of 214 ALPHABETICAL INDEX 1 2 Name Page 3 FLORES, ERASLIO SIRLES, LAURA 906 981 4 GOVERNMENT'S EXHIBITS 5 6 NO. 7 3 4B 4C 5 6 7 17 19B 22 23 24 8 9 10 11 12 DESCRIPTION OFFRD ADMTD W/DRAW 1108 1108 1108 1108 1108 1108 1108 1108 Chart Partial videotape Entire videotape 904 905 905 904 13 DEFENDANT'S EXHIBITS 14 15 NO. DESCRIPTION OFFRD ADMTD 16 10 10A Pedraza evaluations Marco Rodriguez's evaluation 902 902 902 17 18 19 20 21 22 23 24 25 11 12 13 14 15 W/DRAW 1108 1108 1108 1108 1108 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 1 of 1121114 IN THE UNITED STATES DISTRICT COURT 1 2 3 4 5 6 SOUTHERN DISTRICT OF TEXAS BROWNSVILLE DIVISION __________________________________ ) UNITED STATES OF AMERICA ) ) ) CRIMINAL ACTION NO. VS. ) B-13-305 ) EUGENIO PEDRAZA ) __________________________________) 7 8 JURY TRIAL, DAY 5 BEFORE THE HONORABLE ANDREW S. HANEN MARCH 14, 2014 VOLUME 5 9 10 11 12 13 APPEARANCES: 14 For the Government: 15 16 MR. J. P. COONEY MR. BRIAN K. KIDD USDOJ, Criminal Division 1400 New York Ave., N.W., Suite 12100 Washington, D.C. 20005 17 For Deft. Pedraza: MR. LARRY EASTEPP Larry D. Eastepp P.C. 5300 Memorial, Suite 1000 Houston, Texas 77007 Transcribed by: BARBARA BARNARD Official Court Reporter 600 E. Harrison, Box 301 Brownsville, Texas 78520 (956)982-9668 18 19 20 21 22 23 24 25 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 2 of 1121115 1 2 THE COURT: All right. Be seated. We're here with bright and shiny faces to finish 3 the charge. 4 other changes other than the ones -- we made the ones we talked 5 about last night. 6 MR. KIDD: 7 Mr. Kidd, Mr. Cooney, let me start with you. The government didn't find any additional changes, Your Honor. 8 THE COURT: 9 MR. EASTEPP: 10 11 12 What THE COURT: Mr. Eastepp, how about you? Nor did I. Well, it will go -- Katie, did you highlight the changes in here? What we'll do then is run off what will be final copies for 13 both sides. 14 You can go to the conference room and work, just whatever you 15 want to. 16 for another hour yet. 17 18 19 20 21 22 23 And, quite frankly, y'all can sit in here and work. The jury is not going to be here until -- you know, And then is there anything else we need to do before we bring them in for argument? MR. EASTEPP: I will be making a couple objections to the charge just to put it on the record. THE COURT: Oh, let's do that now. wasn't -- you're right. MR. EASTEPP: I'm sorry. I I'm sorry. I request that the charge I tendered that 24 was adapted from 1.14 of the Fifth Circuit pattern charge 25 regarding accomplice testimony where there's immunity, that the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 3 of 1121116 1 charge I submitted before the trial started be used and given to 2 the jury. 3 THE COURT: Okay. And knowing, of course, that I gave 4 virtually that charge, except I also included language from the 5 prior section. 6 7 8 9 10 11 12 13 MR. EASTEPP: Judge, I'm doing this for the record and to cover it. THE COURT: All right. I'll just overrule it. Okay. To the extent -- I guess I don't -- I think I gave it basically in whole anyway. MR. EASTEPP: There's no doubt you gave the pattern with that language from 115. Next I would object to the summarization of the overt acts 14 and ask that they be placed in the charge verbatim from the 15 indictment. 16 THE COURT: 17 MR. EASTEPP: 18 19 20 21 22 And again, I'm making this for the record, Judge, because -THE COURT: I mean, but do you really want that? I can do that, but it's three pages of -MR. EASTEPP: indictment. Obviously the summary is not the This is a fairly unusual indictment, so -- 23 THE COURT: 24 MR. KIDD: 25 Verbatim? All right. I'll think about that. Your Honor, the government will also look at both and see if they have objection to that. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 4 of 1121117 1 THE COURT: 2 MR. KIDD: Pardon me? The government will take a look at how the 3 summaries are currently worded and what's in the indictment as 4 stands, and we can discuss that. 5 THE COURT: I actually literally Xeroxed the overt acts 6 portion and considered putting them in verbatim and then decided 7 there was so much surplusage in it. 8 FBI letters and things that we don't have any evidence in that I 9 decided that it would be very confusing for the jury to instruct 10 11 You know, it talks about them on things that we don't have any evidence about. MR. KIDD: Government agrees, Your Honor. 12 we're trying to streamline this, the process. 13 the job done the fastest from point A to point B. 14 MR. EASTEPP: Let me back up. At this point I think this gets I withdraw that. I 15 just -- I do again, as I said for the record, request that the 16 immunity charge I gave be used; but other than that, those are 17 my objections. 18 19 20 THE COURT: That I'll overrule. Any objections for the record from the government? MR. KIDD: No, Your Honor. The government would like to 21 inform the Court that yesterday we made a request for a 22 consciousness of guilt paragraph be added to the jury 23 instructions. 24 this time, Your Honor. 25 The government is withdrawing that request at THE COURT: All right. There is one thing I'd like to Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 5 of 1121118 1 do for the record. 2 One is for the record. 3 instruction, which I gave during the trial, and which I have 4 included in the instructions that they're drafted right now. 5 And during the trial at bench, at the bench, there was some 6 actual hen scratching where counsel agreed to cross out certain 7 parts of it and everything, and I'd like to enter that into 8 evidence. 9 given to the Court, but y'all agreed on as far as the Christo 10 11 12 13 Actually there's two things I want to do. The defendant had asked for a Christo Not into evidence, but in the record. instruction that I actually gave. MR. EASTEPP: It's what was So I'm giving that to Cristi. We've seen it. I just wanted to indicate to you it was behind you. THE COURT: All right. And then I had this addition to 14 the Christo instruction that I put in when I drafted this charge 15 originally, and then I took it out because neither side seemed 16 to ask for it. 17 calling artillery down on my own position after y'all have 18 agreed on the charge. 19 But I'm going to raise it here at the risk of I was going to add to the Christo instruction that goes to 20 the jury the inclusion of the oaths, because there has been some 21 testimony about everybody taking an oath of office. 22 Now, if you want that, the first draft of the charge I 23 wrote, I had it in there. Then I decided to take it out because 24 no one had asked for it. 25 you're not guilty of a crime either. But, I mean, if you violate an oath, Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 6 of 1121119 MR. EASTEPP: 1 I being the one requesting it obviously. 2 Up until the trial, we were geared to deal with FBI letters and 3 the training logs, and that's where the original charge I 4 drafted I think just goes at least to the FBI letters and the 5 MOUs. 6 objection by us. 7 my part. The oaths were added late by the government without So, yeah, I agree. 8 THE COURT: 9 MR. EASTEPP: 10 THE COURT: 11 MR. KIDD: 12 THE COURT: That was an oversight on You'd like it in? Yes, sir. Any objection? No objections, Your Honor. What we'll do, we're going to rewrite that 13 paragraph to include the oaths. I'm going to leave the same 14 example that's in the draft you gave because it works with that. 15 I can tell you because I wrote it, and it looks just like -- it 16 works the way it's written. 17 And with that change and the changes we discussed last 18 night, we'll probably have those out to you here in about five 19 minutes, and that will be the final draft. 20 21 22 23 24 25 Okay. All right. MR. KIDD: Katie and I will get those out to you. Thanks, Your Honor. (Recess taken from 8:48 to 9:58.) THE COURT: Okay. All right. Be seated. We have all our jurors. They're ready to go. Is there anything we need to do before we bring them in and I begin Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 7 of 1121120 1 to read the final instructions? 2 will see in the paragraph at the bottom of page 4 that includes 3 oaths that we talked about. 4 either you or Mr. Eastepp need any kind of time warning from me? MR. COONEY: 5 6 that. 7 out with the time. 8 THE COURT: 9 MR. COONEY: I will have -- I think Mr. Starnes is going to help me Okay. Thank you very much. THE COURT: 11 MR. EASTEPP: 13 14 No big horns or anything. THE COURT: MR. EASTEPP: 17 THE COURT: 21 Then is there any reason we can't bring the jury in and begin? 16 20 Like I told you yesterday, I can't imagine All right. MR. COONEY: 19 Just -- I'm going to be near the hour. 15 18 Other than that, Mr. Cooney, do Your Honor, I don't think I'm going to need 10 12 I did make the change as you No, Your Honor. We're ready to go. No, Your Honor. All right. Tony, can we have the jury? (Jury enters courtroom) THE COURT: Good morning. All right. Ladies and gentlemen, be seated. Thank you for being here on time. As I told you yesterday, you've heard all the evidence 22 you're going to hear in the trial. This morning I'm going to 23 read you these final instructions. They are longer than the 24 ones I read to you earlier at the beginning of the trial; but as 25 I told you at the beginning, don't panic. This is -- this -- Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 8 of 1121121 1 you're going to have these instructions with you to -- so it is 2 at least an open book test for you, and you'll have these 3 instructions in writing. 4 when you go back to make your decision. 5 You'll have all the exhibits with you Now, in any trial, there are in effect two judges. I'm one 6 of the judges, and the other is you, the jury. 7 duty to preside over the trial and to decide what evidence is 8 proper for your consideration. 9 end of the trial to explain to you the rules of law that you 10 11 It has been my It's also my duty here at the must follow and apply in arriving at your verdict. First I will give you some general instructions which apply 12 in every case. 13 proof and how to judge the believability of the witnesses. 14 I will give you some specific rules about the law in this 15 particular case. 16 you should follow in your deliberations. 17 For example, instructions about the burden of Then Finally I will explain to you the procedures You as jurors are the judges of the facts. But in 18 determining what actually happened, that is, in reaching your 19 decision as to the facts, it's your sworn duty to follow all the 20 rules of law as I explain them to you. 21 disregard or give special attention to any one instruction or to 22 question the wisdom or correctness of any rule I may state to 23 you. 24 opinion as to what the law is or ought to be. 25 to apply the law as I explain it to you regardless of the You have no right to You must not substitute or follow your own notion or It is your duty Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 9 of 1121122 1 2 consequences. It is also your duty to base your verdict solely on the 3 evidence without prejudice or sympathy. 4 you made and the oath you took before being accepted by the 5 parties as jurors, and they have a right to expect nothing less. 6 That was the promise The indictment or formal charge against a defendant is not 7 evidence of guilt. The defendant is presumed by the law to be 8 innocent. 9 starts the trial with a clean slate. The presumption of innocence means that the defendant In other words, the 10 defendant is presumed by you to be innocent throughout your 11 deliberations until such a time you as the jury are satisfied 12 that the government has proven the defendant guilty beyond a 13 reasonable doubt. 14 The law does not require a defendant to prove his innocence 15 or produce any evidence at all. 16 a reasonable doubt that the defendant is guilty, the presumption 17 alone is sufficient to find the defendant not guilty. 18 Unless you are satisfied beyond The government has the burden of proving the defendant 19 guilty beyond a reasonable doubt as to each count; and if it 20 fails to do so with regard to any count, you must acquit the 21 defendant of that count or counts. 22 with the government throughout the entire case, and it never 23 shifts to the defendant. 24 25 The burden of proof rests While the government's burden of proof is a strict or heavy burden, it is not necessary that the defendant's guilt be proved Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 10 of 1121123 1 beyond all possible doubt. It is only required that the 2 government's proof exclude any reasonable doubt concerning the 3 defendant's guilt. A reasonable doubt is doubt based upon reason and common 4 5 sense after careful and impartial consideration of all the 6 evidence in the case. 7 therefore, is 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. Proof beyond a reasonable doubt, 10 As I told you, it is your duty to determine the facts. 11 doing so, you must consider only the evidence presented during 12 the trial, including the sworn testimony of the witnesses and 13 the exhibits. Certain charts and summaries have been received 14 into evidence. You should give them only such weight as you 15 think they deserve. 16 In Remember that any statements, objections or arguments made 17 by the lawyers are not evidence. 18 to point out those things that are most significant or most 19 helpful to their side of the case, and in doing so, to call your 20 attention to certain facts or inferences that might otherwise 21 escape your notice. 22 own recollection and interpretation of the evidence that 23 controls in the case. 24 you. 25 The function of the lawyers is In the final analysis, however, it is your What the lawyers say is not binding on During the trial, I sustained objections to certain Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 11 of 1121124 1 questions. 2 speculate as to what the witness would have said if permitted to 3 answer the question. 4 You must disregard those questions. Do not Certain testimony of David Green concerning his 5 conversations with Robert Vargas and Defendant's Exhibit No. 7 6 were admitted not for the truth of the matters contained 7 therein, but only to show that the statement was made or certain 8 emails were sent respectively, and they should be considered 9 only for those purposes. 10 11 Your verdict must be based solely on the legally admissible evidence and testimony. Also do not assume from anything I may have done or said 12 during the trial that I have any opinion concerning the issues 13 in the case. 14 you should disregard anything I may have said during the trial 15 in arriving at your own findings as to the facts. 16 should consider only the evidence, you are permitted to draw 17 such reasonable inferences from the testimony and exhibits as 18 you feel are justified in the light of common experience. 19 other words, you may make deductions and reached conclusions 20 that reason and common sense lead you to draw from the facts 21 which have been established by the evidence. 22 Except for these instructions to you on the law, While you In You should not be concerned about whether the evidence is 23 direct or circumstantial. Direct evidence is the testimony of 24 one who asserts actual knowledge of a fact, such as an 25 eyewitness. Circumstantial evidence is proof of a chain of Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 12 of 1121125 1 events and circumstances indicating that something is or is not 2 a fact. 3 give to either direct or circumstantial evidence. 4 consider and weigh all the evidence that was presented to you. 5 I remind you that it is your job to decide whether the The law makes no distinction between the weight you may You should 6 government has proved the guilt of the defendant beyond a 7 reasonable doubt. 8 evidence. 9 of the evidence as true or accurate. 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 10 the credibility or believability of each witness and the weight 11 to be given the witness' testimony. 12 An important part of your job will be making judgments about 13 the testimony of the witnesses who testified in the case. 14 should decide whether you believe all or any part of what each 15 person had to say and how important that testimony was. 16 You In making that decision, I suggest you ask yourself a few 17 questions. Did the person impress you as honest? Did the 18 witness have any particular reason not to tell the truth? 19 the witness have a personal interest in the outcome of the case? 20 Did the witness have any relationship with either the government 21 or the defense? 22 Did the witness clearly see or hear the things about which he or 23 she testified? 24 to understand the questions clearly and answer them directly? 25 Did the witness' testimony differ from the testimony of other Did Did the witness seem to have a good memory? Did the witness have the opportunity and ability Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 13 of 1121126 1 witnesses? 2 you determine the accuracy of what each witness said. 3 These are a few of the considerations that will help During the trial, you may have heard that certain witnesses 4 were interviewed by the lawyers prior to trial. 5 for an attorney to interview any witnesses in preparation for 6 the trial. 7 It is proper In this case, the government called witnesses who are 8 alleged co-conspirators of the defendant with whom the 9 government may have entered into immunity agreements providing 10 that they would not be prosecuted. 11 prohibited from testifying. 12 as lawful. 13 or the testimony of one who provides evidence against the 14 defendant and has been given immunity from prosecution must 15 always be examined and weighed by the jury with greater care and 16 caution than the testimony of ordinary witnesses. 17 Such a witness is not Such agreements have been approved The true testimony of such an alleged co-conspirator You the jury must decide whether the witness' testimony has 18 been affected by those circumstances, by prejudice against the 19 defendant, or by the benefits that the witness has received as a 20 result of being immunized from prosecution. 21 testimony of such a witness may alone be of sufficient weight to 22 sustain a verdict of guilty. 23 defendant upon the unsupported testimony of such a witness 24 unless you believe that testimony beyond a reasonable doubt. 25 Nevertheless, the You should never convict a You have heard testimony that the defendant and others may Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 14 of 1121127 1 have violated policies derived from the Department of Homeland 2 Security-Office of Inspector General, which we have abbreviated 3 DHS-OIG, the Special Agent Handbook, or violated certain oaths 4 of office. 5 are not in and of themselves criminal offenses. 6 must prove all of the elements of the crimes charged beyond a 7 reasonable doubt. 8 9 Violations of a DHS-OIG policy or an oath of office The government For example, even if you assume that the defendant violated a DHS-OIG policy, the fact that a policy was not followed does 10 not necessarily mean that the defendant possessed the requisite 11 criminal intent to commit the offenses charged or that the 12 government has proved the elements of the alleged crimes. 13 If you find beyond a reasonable doubt from other evidence in 14 the case that the defendant committed the acts charged in the 15 indictment -- that the defendant did commit the acts charged in 16 the indictment, then you may consider the evidence of a 17 violation of a policy or an oath for the limited purposes of 18 determining whether the defendant had the state of mind or 19 intent necessary to commit the crimes charged in the indictment. 20 The testimony of a witness may be discredited by showing 21 that the witness testified falsely concerning a material matter 22 or by evidence that at some other time, the witness said or did 23 something or failed to say or do something which is inconsistent 24 with the testimony the witness gave at trial. 25 statements of a witness were not admitted into evidence to prove Earlier Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 15 of 1121128 1 the contents of those statements are true. 2 earlier statements only to determine whether you think they are 3 consistent or inconsistent with the trial testimony of the 4 witness and, therefore, whether they affect the credibility of 5 that witness. 6 You may consider the If you believe that a witness has been discredited in this 7 manner, it is your exclusive right to give the testimony of that 8 witness whatever weight you think it deserves. 9 Your job is to think about the testimony of each witness you 10 have heard and decide how much you believe of what each witness 11 had to say. 12 not make any decision simply because there were more witnesses 13 on one side than on the other. 14 particular point just because there were more witnesses 15 testifying for one side on that point. 16 In making up your mind and reaching a verdict, do Do not reach a conclusion on a As I stated earlier, you should always bear in mind that the 17 law never imposes upon a defendant in a criminal case the duty 18 or burden of calling any witnesses or producing any evidence. 19 You are here to decide whether the government has proved 20 beyond a reasonable doubt that the defendant is guilty of the 21 crimes charged. 22 conduct or offense not alleged in the indictment. 23 you concerned with the guilt or innocence of any other person or 24 persons not on trial as a defendant in this case. 25 The defendant is not on trial for any act, Neither are If the defendant is found guilty, it will be my duty not -- Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 16 of 1121129 1 it will be my duty to decide what the punishment will be. 2 should not be concerned with punishment in any way. 3 not enter your consideration or discussion. 4 You It should A separate crime is charged in each count of the indictment. 5 Each count and the evidence pertaining to it should not -- 6 should be considered separately. 7 defendant guilty or not guilty as to one of the crimes charged 8 should not control your verdict as to any other. 9 concerned with the fact that some counts seem to be missing, and The fact that you may find the Do not be 10 that's -- what I mean by that is the numbering system. Remember 11 I told you earlier there were numbers that were skipped. 12 ones not mentioned here are not applicable to this trial. The 13 In any criminal case, the government must not only prove the 14 essential elements of the offense or offenses charged as defined 15 herein, but must also prove, of course, the identity of the 16 defendant as either the perpetrator or an aider and abettor of 17 the alleged offense or offenses. 18 testimony and evidence in this case you have a reasonable doubt 19 as to the identity of the defendant as the perpetrator or aider 20 and abettor of the offenses charged, you must find the defendant 21 not guilty. If after examining all of the 22 Now, as -- the word "knowingly" as that term is used from 23 time to time throughout these instructions means that the act 24 was done voluntarily and intentionally, not because of an 25 accident or mistake. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 17 of 1121130 1 All right. Now, those are general rules that apply across 2 the board to the -- your entire consideration into these 3 instructions. 4 instructions about the various charges that have been made 5 herein. Now I'm going to give you some specific 6 Instructions regarding Count 1, the conspiracy count. 7 Title 18, United States Code, Section 371 makes it a crime 8 for anyone to conspire with someone to commit an offense against 9 the laws of the United States. 10 In Count 1, the indictment charges that from in or about 11 February of 2011 through in and about January of 2012, the 12 defendant knowingly and willfully conspired with others to 13 falsify documents and make false entries in records with the 14 intend to impede, obstruct and influence the investigation and 15 proper administration of a matter within the jurisdiction of the 16 Department of Homeland Security-Office of Inspector General. 17 A conspiracy is an agreement between two or more persons to 18 join together to accomplish some unlawful purpose. It is a kind 19 of partnership in crime in which each member becomes the agent 20 of every other member. 21 For you to find the defendant guilty of the crime of 22 conspiring as charged, the government must prove each of the 23 following beyond a reasonable doubt. 24 25 First, that the defendant and at least one other person made an agreement to commit the crime of falsification of documents Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 18 of 1121131 1 or making false entry in records as charged in the indictment. 2 Second, that the defendant knew of the unlawful purpose of 3 the agreement and joined in it willfully; that is, with the 4 intent to further the unlawful purpose. 5 And third, that one of the conspirators during the existence 6 of the conspiracy knowingly committed at least one of the overt 7 acts described in the indictment in order to accomplish some 8 object or purpose of a conspiracy. 9 The indictment alleges that the defendant, in violation of 10 federal law and in furtherance of the conspiracy, committed 11 multiple overt acts relating to several criminal investigations 12 for which the McAllen office was responsible. 13 follows: 14 They are as The indictment alleges that in or about February or March 15 through September of 2011, that defendant, Eugenio Pedraza, 16 created and initialed falsified supervisory case review 17 worksheets documenting case reviews that did not, in truth and 18 fact, occur and cause them to be placed in investigative case 19 files. 20 overt acts. 21 And further, that he allegedly committed the following No. 1: That with respect to the Manuel Peña file, 22 investigation No. 537, defendant Eugenio Pedraza directed Robert 23 Vargas to create and draft falsified memoranda of activity, 24 MOAs, that either reflected investigative activities that had 25 not been done or that had not been done on the date that Vargas Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 19 of 1121132 1 reflected, and that Defendant Pedraza directed Wayne Ball and 2 others to sign the allegedly false MOAs. 3 No. 2: That with respect to the Jonathan LNU, last name 4 unknown, file investigation No. 315, Defendant Eugenio Pedraza 5 directed Marco Rodriguez to create false MOAs to be put in the 6 file; and that Defendant Eugenio Pedraza created and initialed a 7 false supervisory case review worksheet in the same 8 investigatory file. 9 3: That with respect to the unknown individual file, 10 investigation No. 1086, Defendant Eugenio Pedraza directed Marco 11 Rodriguez to create falsified MOAs to be put in the file. 12 that defendant, Eugenio Pedraza, created and initialed a 13 falsified supervisory case review worksheet in the same 14 investigatory file. 15 16 17 4: And That defendant Eugenio Pedraza directed Della Saenz to create falsified MOAs, a request that she refused to obey. 5: That defendant, Eugenio Pedraza, directed Eraslio J.R. 18 Flores to create falsified MOAs, a request that he refused to 19 obey. 20 You will note that Count 1 charges that the offense was 21 committed in or about February 2011 through in or about 22 January 2012. 23 crimes were committed on exact dates, so long as the government 24 proves beyond a reasonable doubt that the defendant committed 25 the crime on a date reasonably within these dates. The government does not have to prove that the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 20 of 1121133 1 Now, one may become a member of a conspiracy without knowing 2 all the details of the unlawful scheme or the identities of all 3 the alleged co-conspirators. 4 the essential nature of a plan or scheme, understands its 5 unlawful nature and knowingly and intentionally joins in it on 6 one occasion, that is sufficient to convict him for a 7 conspiracy, even though the defendant had not participated 8 before, and even though the defendant played only a minor part. 9 The government need not prove that the alleged conspirators If a defendant has knowledge of 10 entered into any formal agreement, nor that they directly stated 11 between themselves all the details of the scheme. 12 the government need not prove that all the details of the scheme 13 were actually agreed upon or carried out, nor must it prove that 14 all of the persons alleged to have been members of the 15 conspiracy were such, or that the alleged conspirators actually 16 succeeded in accomplishing their unlawful objectives. 17 Similarly, Mere presence at the scene of an event, even with the 18 knowledge that a crime is being committed, or the mere fact that 19 certain persons may have associated with each other and may have 20 assembled together and discussed common aims and interests, does 21 not necessarily establish proof of the existence of a 22 conspiracy. 23 but who happens to act in a way which advances some purpose of a 24 conspiracy, does not thereby become a conspirator. 25 Also a person who has no knowledge of a conspiracy, You must determine whether the conspiracy charged in the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 21 of 1121134 1 indictment existed; and if it did, whether the defendant was a 2 member of it. 3 exist, then you must return a not guilty verdict, even though 4 you find that some other conspiracy existed. 5 a -- the defendant was not a member of the conspiracy charged in 6 the indictment, you must find the defendant not guilty, even 7 though the defendant may have been a member of some other 8 conspiracy. 9 10 If you find that the conspiracy charge did not All right. If you find that Now, these are instructions regarding Counts 2, 4, 6, 10, 11 and 13. 11 Regarding the second, fourth, sixth, tenth, eleventh and 12 thirteenth counts of the indictment relating to falsification of 13 documents and making false entries in a record, Count 2, the 14 second count, charges that from in or about August 2011 through 15 in or about September of 2011, the defendant, along with Special 16 Agents Robert Vargas and Wayne Ball, while acting in relation to 17 and in contemplation of criminal investigation 537 involving 18 Manuel Peña and an internal DHS-OIG inspection of the McAllen 19 field office, knowingly falsified memoranda of activity, MOAs, 20 or made false entries in the case file for criminal 21 investigation 537 with the intent to impede, obstruct and 22 influence the investigation and proper administration of the 23 matter. 24 25 Count 4: The fourth count charges that from in or about August of 2011 through in or about September of 2011, the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 22 of 1121135 1 defendant, along with Special Agent Marco Rodriguez, while 2 acting in relation to and in contemplation of criminal 3 investigation 315 involving Jonathan last name unknown, LNU, and 4 an internal DHS-OIG inspection of the McAllen field office, 5 knowingly falsified memoranda of activities, MOAs, or 6 supervisory case review worksheets or made false entries in the 7 case file for criminal investigation 315 with the intent to 8 impede, obstruct and influence the investigation and proper 9 administration of that matter. 10 Count 6: The sixth count charges that from in or about 11 August of 2011 through in or about September of 2011, the 12 defendant, along with Special Agent Marco Rodriguez, while 13 acting in relation to and in contemplation of criminal 14 investigation 1086 involving an unknown perpetrator and an 15 internal DHS-OIG inspection of the McAllen field office, 16 knowingly falsified memorandum of activities or supervisory case 17 review worksheets or made false entries into the case file for 18 criminal investigation 1086 with the intent to impede, obstruct 19 and influence the investigation and proper administration of the 20 matter. 21 Now, you will note that Counts 2, 4 and 6 charge that the 22 offenses were committed on or about August of 2011 through in or 23 about September of 2011. 24 prove that the crimes were committed on those exact dates so 25 long as the government proves beyond a reasonable doubt that the Now, the government does not have to Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 23 of 1121136 1 defendant committed the crime on a date reasonably near these 2 dates. 3 Count 10: The tenth count charges that from in or about 4 February of 2011 through in or about March of 2011, the 5 defendant, along with Special Agent Edwin Castillo, while acting 6 in relation to and in contemplation of a criminal investigation, 7 knowingly falsified a memorandum of activity or an abbreviated 8 report of investigation, an AROI, made false entries in the case 9 file for the criminal investigation with the intent to impede, 10 obstruct or influence the investigation and proper 11 administration of the matter. 12 Now, you will note that Count 10 charges the offense was 13 committed in or about February of 2011 through in or about March 14 of 2011. 15 was committed on an exact date, so long as the government proves 16 beyond a reasonable doubt that the defendant committed the crime 17 on a date reasonably near the dates mentioned. 18 The government does not have to prove that the crime Count 11: The eleventh count charges that from in or about 19 May of 2011, the defendant, along with Special Agent Roland 20 Gomez, while acting in relation to and in contemplation of a 21 criminal investigation, knowingly falsified a memorandum of 22 activity or made false entries in the case file for the criminal 23 investigation with the intent to impede, obstruct and influence 24 the investigation and proper administration of the matter. 25 You will note that Count 11 charges that the offense was Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 24 of 1121137 1 committed in or about May of 2011. 2 to prove that the crime was committed on an exact date, so long 3 as the government proves beyond a reasonable doubt that the 4 defendant committed the crime on a date reasonably near that 5 date. 6 Count 13: The government does not have The thirteenth count charges that from in or 7 about January of 2012 through in or about February of 2012, the 8 defendant, while acting in relation to and in contemplation of 9 an investigation by the Federal Bureau of Investigation, 10 knowingly destroyed or concealed falsified supervisory case 11 review worksheets with the intent to impede, obstruct and 12 influence the investigation and proper administration of the 13 matter. 14 You will note that Count 13 charges that the offense was 15 committed in or about January 2012 through in or about February 16 of 2012. 17 was committed on an exact date, so long as the government proves 18 beyond a reasonable doubt that the defendant committed the crime 19 on a date reasonably near these dates. 20 The government does not have to prove that the crime Now, Title 18, United States Code, Section 1519 makes it a 21 crime for anyone to knowingly alter, destroy, mutilate, conceal, 22 cover-up, falsify or make a false entry in any record, document 23 or tangible object with the intent to impede, obstruct or 24 influence the investigation or proper administration of any 25 matter within the jurisdiction of any department or agency of Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 25 of 1121138 1 2 the United States. For you to find the defendant guilty of this crime under 3 Counts 2, 4, 6, 10, 11 and 13, you must be convinced that the 4 government has proved each of the following beyond a reasonable 5 doubt: 6 First: That the defendant altered, destroyed, mutilated, 7 concealed, covered up, falsified or made a false entry in any 8 record, document or tangible object. 9 10 11 Second: That the government -- excuse me. Second: That the defendant acted knowingly. And third: That the defendant acted with the intent to 12 impede, obstruct, or influence the investigation or proper 13 administration of any matter within the jurisdiction of an 14 agency or department of the United States or in relation to or 15 contemplation of such matter or case. 16 A criminal investigation performed by the DHS-OIG, the 17 DHS-OIG internal inspection, and FBI investigations all qualify 18 as matters within the jurisdiction of an agency or a department 19 of the United States. 20 For you to find the defendant guilty of the crime charged in 21 Counts 2, 4, 6, 10, 11 and 13 of the indictment, the government 22 must prove all of the essential elements for each count beyond a 23 reasonable doubt. 24 proven all of the essential elements beyond a reasonable doubt 25 for any one of the counts, you must find the defendant not If you find that the government has not Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 26 of 1121139 1 guilty as to that count or counts. All right. 2 3 4 Then we have a different instruction for Count 12. Regarding the twelfth count of the indictment relating to 5 obstruction of justice, Count 12 charges that from in or about 6 January 2012 through in or about February of 2012, the defendant 7 corruptly caused falsified supervisory case review worksheets to 8 be removed from the McAllen field office case files or attempted 9 to do so with the intent to impair the record or document's 10 integrity or availability for use in an investigation before a 11 grand jury empaneled in the District of Columbia. 12 You will note that Count 12 charges that the offense was 13 committed in or about January 2012 through in or about 14 February 2012. 15 crime was committed on an exact date, so long as the government 16 proves beyond a reasonable doubt that the defendant committed 17 the crime on a date reasonably near these dates. 18 The government does not have to prove that the Title 18, United States Code, Section 1512(c)(1) makes it a 19 crime for anyone to corruptly alter, destroy, mutilate, or 20 conceal a record, document or other object or attempt to do so 21 with the intent to impair the object's integrity or availability 22 for use in an official proceeding. 23 For you to find the defendant guilty of the crime, you must 24 find that the defendant has proven each of the following beyond 25 a reasonable -- excuse me, that the government has proved each Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 27 of 1121140 1 2 3 of the following beyond a reasonable doubt. First: That the defendant altered, destroyed, mutilated or concealed a record or document. 4 Second: That the defendant acted corruptly. 5 And third: That the defendant acted with the intent to 6 impair the record or document's integrity or availability for 7 use in an official proceeding. 8 9 10 11 12 13 An act is done corruptly if the defendant acted knowingly and dishonestly with the specific intent to subvert or undermine the due administration of justice. The term "official proceeding" as used in Count 12 means the District of Columbia grand jury proceeding. The official proceeding need not be pending or about to be 14 instituted at the time of the offense. 15 necessary for a nexus to exist between the alleged violative act 16 and the proceeding. 17 violative act, the defendant must have foreseen an official 18 proceeding in which the record or document might be offered. 19 Nevertheless, it is That is, at the time of the alleged Furthermore, it is a crime for anyone to attempt to commit a 20 violation of certain specified laws of the United States. In 21 this case, the defendant is charged in the alternative with 22 attempting to corrupt, alter, destroy, mutilate or conceal a 23 record or document or other object with the intent to impair the 24 object's integrity or availability for use in an official 25 proceeding. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 28 of 1121141 1 The elements of the crime of corruptly altering, destroying, 2 mutilating or concealing a record, document or other object with 3 the intent to impair the object's integrity or availability for 4 use in official proceeding are explained immediately above. 5 For you to find the defendant guilty of attempting to 6 corruptly cause falsified case review worksheets to be removed 7 from the McAllen field office case files with the intent to 8 impair the record or document's integrity or availability for 9 use in an investigation before a grand jury empaneled in the 10 District of Columbia, you must be convinced that the government 11 has proved beyond a reasonable doubt the following: 12 First: That the defendant intended to corruptly alter, 13 destroy, mutilate, or conceal a record, document or other object 14 with the intent to impair the object's integrity or availability 15 for use in an official proceeding. 16 And second: That the defendant did an act that constitutes 17 a substantial step toward the commission of that crime and that 18 strongly corroborates the defendant's criminal intent and 19 amounts to more than mere preparation. 20 All right. These are instructions on aiding and abetting, 21 and they apply only to Counts 2, 4, 6, 10, 11, 12 and 13. 22 obviously these will be written for you, so you can see them. 23 And With regard to the remaining seven counts in the indictment, 24 Counts 2, 4, 6, 10, 11, 12 and 13, the government has alleged 25 both that the defendant committed and that he aided and abetted Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 29 of 1121142 1 2 others in committing the charged offenses. The guilt of a defendant in a criminal case may be 3 established under the law of aiding and abetting without proof 4 that the defendant personally did every act constituting the 5 offense alleged. 6 person can do for himself may also be accomplished by him 7 through the direction of another person as his or her agent or 8 by acting in concert with or under the direction of another 9 person or persons in a joint effort or enterprise. 10 The law recognizes that ordinarily anything a If another person is acting under the direction of the 11 defendant or if a defendant joins another person and performs 12 acts with the intent to commit a crime, then the law holds the 13 defendant responsible for the acts and conduct of such other 14 person just as though the defendant had committed the act or 15 acts or engaged in such conduct. 16 Before any defendant may be held criminally responsible for 17 the acts of others, it is necessary that the accused 18 deliberately associate himself in some way with the crime and 19 participate in it with the intent to bring about the crime. 20 Of course, mere presence at the scene of a crime and 21 knowledge that a crime is being committed are not sufficient to 22 establish that the defendant either directed or aided and 23 abetted the crime unless you find beyond a reasonable doubt that 24 the defendant was a participant and not merely a knowing 25 spectator. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 30 of 1121143 1 In other words, you may not find the defendant guilty unless 2 you find beyond a reasonable doubt that every element of the 3 offense as defined in these instructions was committed by some 4 person or persons and that the defendant voluntarily 5 participated in its commission with the intent to violate the 6 law. 7 For you to find the defendant guilty of aiding and abetting 8 a certain offense, you must be convinced that the government has 9 proved each of the following beyond a reasonable doubt: 10 11 12 13 14 15 First: That the underlying offense was committed by some person. Second: That the defendant associated with the criminal venture. Third: That the defendant purposely participated in the criminal venture. 16 And fourth: 17 venture successful. 18 That the defendant sought by action to make the To associate with the criminal venture means that the 19 defendant shared the criminal intent of the principal. This 20 element cannot be established if the defendant had no knowledge 21 of the principal's criminal venture. 22 To participate in the criminal venture means that the 23 defendant engaged in some affirmative conduct designed to aid 24 the venture or assisted the principal of the crime. 25 All right. Let me give you some just general instructions Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 31 of 1121144 1 2 about your deliberations. To reach a verdict, whether it is guilty or not guilty, all 3 of you must agree. Your verdict must be unanimous on each count 4 of the indictment. Your deliberations will be secret. 5 never have to explain your verdict to anyone. 6 You will It is your duty to consult with one another to deliberate in 7 an effort to reach an agreement if you can do so. 8 must follow the case for yourself, but only after impartial 9 consideration of the evidence with your fellow jurors. 10 Each of you During your deliberations, do not hesitate to reexamine your 11 own opinions and change your mind if you're convinced that you 12 were wrong, but do not give up your honest beliefs as to the 13 weight or effect of the evidence solely because of the opinion 14 of your fellow jurors or for the mere purpose of returning a 15 verdict. 16 Remember that at all times, you are judges, judges of the 17 facts. 18 beyond a -- proved the defendant guilty beyond a reasonable 19 doubt. 20 Your duty is to decide whether the government has proved Now, when you go to the jury room, the first thing you 21 should do is select one of your number as the foreperson who 22 will guide your deliberations and will speak for you here in the 23 courtroom. 24 25 A verdict form has been prepared for your convenience. The foreperson will write the unanimous answer of the jury in the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 32 of 1121145 1 space provided for each count of the indictment, either guilty 2 or not guilty. 3 foreperson should date and sign the verdict. 4 At the conclusion of your deliberations, the If you need to communicate with me during your 5 deliberations, the foreperson should write the message and give 6 it to the marshal, and I will either reply in writing or bring 7 you back into the courtroom to answer your message. 8 9 Bear in mind that you are not to reveal to any person, not even to the Court, how the jury stands numerically or otherwise 10 on any count of the indictment until after you have reached a 11 unanimous verdict. 12 Thank you for your attention you've given the case during 13 the presentation of the evidence and the argument of counsel and 14 for your continued diligence throughout your deliberations. 15 Those are the instructions. You'll have these with you. 16 Then there's a verdict form that looks like this, and you'll 17 each have a copy of this too. 18 read you Count 1. 19 Eugenio Pedraza," and then there's a blank for "guilty or not 20 guilty of conspiring to falsify documents or make false entry in 21 records." 22 And it basically -- I'll just It says, "We, the jury, find the defendant, And then there's an additional question there each for 23 Counts 1, 2, 4, 6, 10, 11, 12, and 13. 24 for the foreperson to date and sign it. 25 All right. And then there's a space Those are the instructions we're going to be Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 33 of 1121146 1 2 3 4 operating under. Mr. Cooney, who's going to lead off for the government? MR. COONEY: I will, Your Honor. If I may just have one moment to set up. 5 THE COURT: You may. 6 MR. COONEY: 7 "He didn't have to. Thank you. He didn't have to. I knew exactly what 8 he meant." That is what Robert Vargas told you about the 9 defendant's instruction to him in the conference room just a 10 couple weeks before the inspection to falsify reports, to 11 falsify memoranda of activity in the Manny Peña case file. 12 didn't have to use the word falsify. 13 word fabricate. 14 didn't have to use the word lie. 15 what the defendant meant. 16 He didn't have to use the He didn't have to use the words make up. Fill the gap. He He Robert Vargas knew exactly Bridge the gap. Spread it out. Robert 17 Vargas knew this because they had a direct conversation in the 18 conference room. 19 specific about the gap between March 10, 2010 -- excuse me, 20 March 3, 2010 and June 10, 2011. 21 words because the defendant was talking about a time in which 22 Robert Vargas not employed by the Department of Homeland 23 Security. 24 Vargas wasn't assigned to that case. 25 time period when Robert Vargas was in Georgia at FLETC getting He knew this because the defendant was He didn't have to use those He was talking about a time period in which Robert He was talking about a Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 34 of 1121147 1 2 trained. He didn't have to use those words when he gave the same 3 instruction to J.R. Flores. He didn't have to use those words 4 because he was talking about a time before J.R. Flores was 5 assigned to the case file that he instructed him to falsify 6 documents in. 7 the same instruction to Della Saenz, and she too had not been 8 assigned the case file for the time period when the defendant 9 instructed her to bridge the gap. He didn't have to use those words when he gave 10 Isn't that exactly what you would expect when someone 11 instructs or asks someone else to commit a federal crime? 12 defendant was the only person who had anything to gain from the 13 falsification of those documents. 14 had something to lose at the inspection. 15 who would be held responsible for gaps in investigative 16 activity. 17 about why case files weren't being worked, about why reports 18 hadn't been written, about why memoranda were not getting into 19 the files at the time they were supposed to. 20 The He was the only person who He was the only person He was the only person who would be asked questions And you know that from the testimony of J.R. Flores, his 21 colleague who had worked in the office with him since back in 22 2004. 23 been through this before." 24 25 "Gene, what's the big deal about this inspection? What did the defendant say? charge now. We've "I'm the special agent in Ron Moore, the old special agent in charge, he's Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 35 of 1121148 1 2 not here anymore to take this. It's on me. It's on me." You saw Defense Exhibit No. 10 yesterday, the employee 3 evaluations of the defendant. 4 evidence is. 5 thought of him. 6 defendant wanted to keep going, that they thought he was doing 7 his job; that they thought his files were in order; that they 8 thought the McAllen field office was in compliance with policy. 9 Let's be clear about what this This evidence is what the defendant's supervisors What they thought of him. That's what the You heard throughout this case and you saw throughout this 10 case that the dates in those files, the dates that the defendant 11 directed his special agents to falsify are important dates. 12 witnessed it here during the testimony of Robert Vargas. 13 witnessed it when Mr. Eastepp went up to him on more than one 14 occasions with documents to refresh his recollection about the 15 date that interviews happened, the date he went to the grand 16 jury, the date he got his non-prosecution agreement. You You 17 Those dates are important, the date that a record check was 18 run, the date that a person crossed from Mexico into the United 19 States, from the United States into Mexico. 20 criminal investigations, they are the difference between holding 21 a guilty person accountable of a crime and letting an innocent 22 person go free. 23 matters. 24 25 Details matter. These things in Dates matter. The truth But what do you know from the evidence in this case about the defendant? You know from Cynthia Hinojosa, his right hand, Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 36 of 1121149 1 the person he hired, the person who worked with him on a daily 2 basis. 3 respect to MOAs. 4 You know from her that the truth didn't matter with She came in here and she told you that he told her to tell 5 the special agents to date MOAs when they signed them. 6 the date that they were actually signing the document, but 7 rather for the date or a date near the time of the investigative 8 activity recorded in the report, even if that had occurred 9 months prior to the filing of the MOA. 10 11 Not for The truth didn't matter to the defendant about those dates. What you know from Cynthia Hinojosa is that what mattered to 12 him was looking good, giving the appearance that the report was 13 written timely, that it was filed timely, that they were in 14 compliance with the five day policy, that the boxes were being 15 checked. But the truth matters in these cases. 16 From the opening statement and from the cross-examination of 17 the witnesses, you know that the defense wants you to think that 18 this is a case about filling forms, just prefilled forms where 19 dates are filled in, where things are filled in. 20 about dog cases. 21 time with the Department of Homeland Security. 22 confusion about when memoranda of activity are supposed to be 23 dated. 24 25 That it's That it's about shifting policies throughout That it's about There was no confusion about that for the defendant. know that from Ms. Hinojosa. You But that is not what this case is Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 37 of 1121150 1 2 about. This case is about lying. This case is about the 3 defendant's instructions to his special agents to falsify those 4 reports, to bridge the gap. 5 that these agents were not working cases, not even assigned to 6 cases; and in the case of Robert Vargas, not even employed at 7 the Department of Homeland Security. 8 9 To bridge the gap for time periods I want to shift now, and I want to talk about the specific counts that are charged in this case and how the events that 10 we've talked about in each of these instances with each of these 11 witnesses who have come up and testified and told you about the 12 defendant's instructions to them and the conversations they had, 13 how they fit into the charges and how they fit into your 14 deliberations when you go back and consider them in this case. 15 The first -- the first place I want to start is just in 16 Count 1, the conspiracy charge. 17 to consider what you're thinking about. 18 you, and the concept is not a difficult one. 19 the defendant and one other person, the defendant and Robert 20 Vargas, or the defendant and Wayne Ball, or the defendant and 21 Marco Rodriguez agreeing to falsify documents for the purpose of 22 impeding the criminal investigation file or for the purpose of 23 impeding the inspection. 24 25 And just a moment on conspiracy Judge Hanen instructed It's two people, Now, you heard Judge Hanen instruct you an agreement doesn't have to be explicit. It doesn't have to be memorialized in Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 38 of 1121151 1 writing. 2 with the specific terms. 3 an example for a second. 4 It doesn't have to be something that's agreed upon A basketball team. And I encourage you to just think of They're co-conspirators. A basketball 5 team agrees with each other, five players on the court, to try 6 to score. 7 They don't say, "Come on, guys. 8 the court and they play the game. 9 They don't say that before they go get on the court. Let's score." They go out on The conspiracy starts when the ball is tipped. Maybe that's 10 when they agree. 11 started even sooner in the locker room when they were putting 12 their uniforms on. 13 score. 14 Actually the conspiracy actually probably They've agreed to go out together to try to And when they're on the court, they don't say, "Come on, 15 let's score." 16 code language for score. 17 They say pass, shoot, hustle, play defense. Bridge the gap. Fill the gap. Spread them out. It's You know 18 in this case that there was an agreement to falsify documents 19 from Vargas' testimony. 20 He told you that. He told you all about -- in detail through my direct 21 examination and Mr. Eastepp's cross-examination all about what 22 happened in that conference room, about their conversation, 23 about Vargas' protests, "We can't do this. 24 check the TECS reports. 25 They'll be able to I wasn't here then." So what did the defendant do? Let's get Wayne Ball. Ball Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 39 of 1121152 1 was here. And what did they agree? 2 reports. Ball will sign the reports. 3 meeting. 4 Problem solved. How else do you know they made that agreement? 5 from the case file. 6 you know from the emails. 7 agreement. 8 Vargas will write the End of You know You know from the Manny Peña case file and They did it. In this case, it wasn't just an They falsified these documents. And it gets to Count 2, the actual charge of obstructing the 9 inspection or the criminal case file, the Manny Peña case file 10 with respect to what Robert Vargas and the defendant and Wayne 11 Ball did with these MOAs. 12 they're false. 13 them. 14 You know from Vargas' testimony that You know that the defendant participated in You know he signed these documents. These documents show you that Vargas is telling the truth. 15 I just want to remind you, Government's Exhibit 1B. This is the 16 email, the second one down, from the defendant to Robert Vargas. 17 "See edits." 18 room. 19 you that he protested with the defendant and warned him, 20 "They'll be able to look at the TECS checks. 21 be able to see if I ran them; or even once Ball got involved, if 22 Ball ran them." Think back to that conversation in the conference Think back to what Robert Vargas told you about. He told They're going to 23 Just look at this example from Government's Exhibit 1B. 24 This is the defendant's response with his tracked changes, with 25 the defendant's edits. The cross out. The cross out here, Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 40 of 1121153 1 that's the defendant's change. 2 He wrote that Wayne Ball conducted the checks, which he knew was 3 false. 4 Look what Robert Vargas wrote. Vargas warned the defendant, "They're going to be able to 5 check this." Who changed it to make it more ambiguous? 6 changed it to take Wayne Ball's name out? 7 and cover-up tracks about who had run a search and when a search 8 had been run? 9 testimony to you about what happened in the conference room. The defendant. Who Who changed it to try That corroborates Vargas' 10 That's one of the ways that you know that Robert Vargas is 11 telling you the truth about what happened. 12 You can look at Government's Exhibit 1B back in the 13 conference room, and you'll see there are other MOAs involving 14 TECS checks and CLEAR records checks where the defendant made 15 the exact same change. 16 out of here. 17 You know what? Let's get Ball's name Let's get his name out of this. And Government's Exhibit 1C, the final case files. You know 18 that the defendant cares nothing of the truth and that he's 19 willing to falsify reports to look good simply by looking at 20 these. 21 you look at Government's Exhibit 1A, 1B, those are the drafts 22 back and forth. 23 September 1, 2011. 24 this report and wrote himself. 25 mistake from using one; you know, just line it up, a pony from If you look at Government's Exhibit 1C, all of these, if You'll see that they were all emailed on September 1, 2011. The defendant signed Not a prefilled form. Not a Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 41 of 1121154 1 another document and forgetting to change the date. 2 defendant wrote this date, October 8, 2010. 3 That document had to have been signed on or after September 1, 4 2011, because that is the date that Vargas sent the draft. 5 is the date those documents were created. 6 lied about the date. 7 Why? The October 8, 2010. That The defendant simply To look good to the inspectors, to impede the 8 inspection, to give the false impression that he was doing his 9 job because he was accountable because Ron Moore wasn't there 10 11 anymore. And you know from Government's Exhibit 14, the TECS checks 12 that Agent Sirles testified about yesterday, that no TECS checks 13 were run on the dates in that file that those reports claimed 14 that they were. 15 It was all a lie. And you know the proper administration of this case file, of 16 this criminal investigation, open criminal investigation, you 17 know what happened to it. 18 can't work this anymore. 19 Robert Vargas knew. 20 credibility was the cornerstone, and he knew that anything that 21 was done subsequently in this case could never be -- could never 22 be prosecuted. 23 Robert Vargas told you. He knew we We can't solve this case because He knew what he did was wrong, and he knew It could never be counted on again. And I want to make one kind of important point, just a 24 technical point about the charges when you go back. You'll see 25 that on these case files, it is our burden, the government's Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 42 of 1121155 1 burden to demonstrate that the defendant intended to impede 2 either the inspection or the case file itself. 3 file itself, the proper administration of the case file. 4 And by the case This case file was worthless once the defendant instructed 5 Robert Vargas and Wayne Ball to falsify documents, its proper 6 administration done. 7 find one or the other. 8 9 But you don't have to find that. You can And as I told you, the evidence is incontrovertible on this point. The defendant will be held accountable for the 10 inspection. 11 impede the inspection; the only one with the motive to falsely 12 bridge gaps. 13 The defendant was the only one with the motive to I want to move on to Counts 2 and 4. These are also case 14 files that the defendant instructed Marco Rodriguez to falsify 15 for the inspection. 16 testified about yesterday that put the documents in and showed 17 the dates that reports were run in this case file, TECS reports. 18 She put up two or three -- actually I think it was a total of 19 four reports that went into these two case files that were open 20 at that time. 21 that those TECS reports had not been run, Government's 22 Exhibit 14. 23 These are the ones that Agent Sirles also And she showed you the TECS records demonstrating And I'll just put up one right here, Government's 24 Exhibit 12A. On November 14, 2010, Marco Rodriguez ran a TECS 25 report essentially. And what did Agent Sirles show you about Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 43 of 1121156 1 these documents? She showed you Government's Exhibit 14 2 demonstrating the TECS reports dates that they were run on; that 3 there was no TECS report run in November 4 -- in November of 4 2010 on this subject by Marco Rodriguez, much less one in 2010 5 at all. 6 defendant instructing Marco Rodriguez to do this, to falsify 7 this report was that what she also showed you about those TECS 8 runs is that some of them occurred in September of 2011. 9 Throughout those four reports she showed you, she showed you But so important as to the evidence that it was the 10 TECS reports that were run on dates between September 2, 2011, 11 and September 7, 2011. 12 before the internal inspection, the exact type of gap filling 13 that he directed Robert Vargas to do. 14 We are talking about ten days to a week Who else but the defendant had a motive to do that? None of 15 these agents had a stake in this inspection. 16 agents had anything to lose for gaps in investigative activity 17 during times they weren't even assigned to cases; during times 18 in Robert Vargas' case he wasn't even employed by DHS. 19 defendant. 20 None of these The That's how you know. You don't need testimony from a specific person about that 21 case file. You don't need to know the specifics of the 22 conversation like you have with Robert Vargas. 23 the TECS records. 24 need to know is the context of that inspection. 25 that happen? All you need are All you need is that false report. Why else would that have happened? All you How else did The defendant. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 44 of 1121157 1 The defendant. And I want to talk about one final case file related to the 2 3 inspection and actually two conversations, but Della Saenz and 4 J.R. Flores. 5 there are no charges that arise from the defendant's instruction 6 to Della Saenz and J.R. Flores to falsify memoranda of activity. 7 That is evidence that what he told Robert Vargas to do, what he 8 instructed Marco Rodriguez to do, that it happened. 9 Flores refused. Now, this is important. There are no counts, Saenz and You know that these things happened because 10 they are exactly consistent with what he told Robert Vargas, 11 with what you see occurred in the two files related to Marco 12 Rodriguez. 13 And so important, there was cross-examination about this. 14 Mr. Eastepp asked questions of both Della Saenz and J.R. Flores. 15 You didn't -- he didn't tell you to go get with the old case 16 agent. 17 Della Saenz's case. 18 go get with whoever had been assigned the case before him. 19 didn't you go do that? 20 he? 21 He didn't tell you to go get with Camillo Garcia in In J.R. Flores' case, he didn't tell you to That's exactly the point. What did the defendant know? Why Why didn't The defendant knew either 22 nobody had been assigned to those cases or no work had been 23 done. 24 to do it. 25 agent about work that had never been done. If he couldn't get them to do it, he couldn't get anybody He's not going to go have them talk to another case To get somebody to Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 45 of 1121158 1 falsify documents, he's got to do that himself. 2 conversations, their refusal to follow his instructions, they 3 prove to you that what happened with Vargas and what happened 4 with the Rodriguez files occurred, that it was his intent to 5 falsify documents, that he instructed it. 6 Those two All these case files that I've just described, they all 7 relate to the inspection, to Count 1, the conspiracy, and to 8 Counts 2, 4 and 6. 9 And so what you need to find with respect to the conspiracy is All those counts relate to the inspection. 10 simply that the defendant agreed with one person, Robert Vargas, 11 to falsify documents, and that someone committed one overt act 12 in support of that conspiracy. 13 are five I believe in the instructions that Judge Hanen gave 14 you. 15 reports. 16 Just one. You only need to find one. You'll see that there Robert Vargas writing the That's a conspiracy. And then for each of the counts, you just need to find that 17 the defendant instructed Vargas to do it, that the defendant 18 caused, with respect to the two Rodriguez files I just 19 described, that he caused the falsifications to occur. 20 all. 21 inspection. 22 And you know, as I've just described, he didn't care about the 23 proper administration of the case files. 24 he looked. 25 That's With the intent to impede the instruction -- the Or the proper administration of the case files. Let's jump ahead. He cared about the way Let's talk about Counts 12 and 13 because Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 46 of 1121159 1 they relate to this too. 2 missing case review sheets that David Green told you about. 3 When you get to those counts and you talk about the case review 4 sheets, I want to make a suggestion to you. 5 clear, it's your deliberations. 6 your case. 7 suggestion about how you should deliberate. 8 specific suggestion related to this count, those two counts. 9 Start with two cases -- two questions to yourselves, two 10 11 Those are the counts involving the And I want to make When you go back there, this is You deliberate the way you see fit, but I can make a I'm going to make a questions about the case review sheets. First, who had a motive to destroy them? The defendant, to 12 cover-up what had happened with respect to the inspection once 13 he knew he was under investigation. 14 And the second question, who else had a motive? 15 one. 16 sheets. 17 No one. No one had any reason to remove those case file review And so let's talk about what happened. The other day, yesterday Mr. Eastepp put into evidence the 18 inspection report for the defense, Defense Exhibit No. 18. 19 something about this inspection report that you need to keep 20 clear about. 21 anything in here about falsifying documents, about destroying 22 case review sheets. 23 inspection. 24 25 No Remember, this is an inspection. And You won't read You won't see that in here. This is the Falsifying documents, destroying case review sheets, that's a criminal investigation. That was handled by the FBI, by Agent Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 47 of 1121160 1 2 Sirles and her colleagues, as it should be. But I want you to look at two dates, two dates in this 3 inspection report. 4 Mr. Eastepp put up here from the defendant back to the 5 inspectors. 6 me just comment on that date, because I think if there's one 7 thing the evidence has shown in this case about dates, you can't 8 count on them when the defendant puts them on a document. 9 At the very back, the letter that And look at the date. But November 7, 2011. November 7, 2011. And let And look at another important date. 10 The date that this was signed by inspectors in Washington, 11 January 5, 2012. 12 final by then. 13 January 5, 2012. This inspection report was This process was over. January 24 and January 25, 2012. January 5, 2012. Government's Exhibits 20A 14 and 20B. 15 defendant attaching the Excel spreadsheet highlighting the cases 16 that were to be inspected. 17 these case files? 18 Hinojosa three weeks after that inspection report was final, 19 three months after the inspectors had been there? 20 doing looking for these reports? 21 These are the emails to Cynthia Hinojosa from the Why is the defendant looking for Why is he sending this spreadsheet to Cynthia What is he Cynthia Hinojosa got up here and took this stand, and she 22 told you she didn't contest that she got these emails, but she 23 said, "I don't -- I don't remember why he was looking for them. 24 I don't -- I don't remember if I was ever instructed to go into 25 the case file room and get case files. I don't -- I don't Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 48 of 1121161 1 2 remember any of this." Is Cynthia Hinojosa credible on that fact? Cynthia 3 Hinojosa, the person who three minutes into her direct 4 examination, I had to confront with her grand jury testimony 5 because she didn't want to admit that she goes out to lunch with 6 the defendant frequently? 7 started as a GS-9 and was promoted up to a GS-12 by the 8 defendant and couldn't tell you what her salary was? 9 Hinojosa, when she was first shown that hallway where she had 10 11 Cynthia Hinojosa, a person who Cynthia worked since 2004 said, "I don't -- I'm not sure where that is." Who was she here to protect? What does she know? What does 12 she know about Government's Exhibit 21, the videotape that Agent 13 Sirles demonstrated to you is January 25, 2012? 14 know about that day? 15 What else do we We know that on that day, Robert Vargas was approached by 16 the FBI and asked questions. 17 the Department of Homeland Security to his supervisors. 18 know in that same time frame, according to Ms. Hinojosa, that 19 she became aware of a grand jury investigation. 20 admitted that she talked to the defendant about it, and he said, 21 "They must be looking at me. 22 We know that he sent word back to And we And she They must be looking at me." And we know that it was weeks after that that Dave Green 23 discovered all those case file review sheets missing. Who else 24 had a motive to take those sheets other than the defendant? 25 destroy the evidence of what he had done to corrupt the To Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 49 of 1121162 1 inspection, to destroy evidence that would have gone to a grand 2 jury, to destroy evidence that he did not conduct case file 3 reviews, that he falsified case file reviews, and that he did it 4 to look good. 5 Let's talk now about some additional counts in the 6 indictment, kind of moving back. 7 directly to the inspection, but more evidence that the defendant 8 doesn't tell the truth, that he does not care about the truth, 9 but what he cares about is looking good. 10 Ones that don't relate The 414 file, the corrupt unknown border official. This is 11 the one that Edwin Castillo testified about. 12 where Edwin Castillo testified that he was approached by the 13 defendant in February of 2011 and instructed to write an MOA 14 that the source, who had been integral to making the report in 15 this case file, couldn't be located so this case could be closed 16 out. 17 This is the one One year after it was opened. Let me just remind you about the JIC report that was made on 18 January 19, 2010. 19 Exhibit 11A on this subject about the fact that there was a 20 source who reported that there was a corrupt border official 21 that could be looked at. 22 from him. 23 report. 24 25 You can take a look at Government's And who made that report? Richard Villarreal. You heard Richard Villarreal made that One year later, Edwin Castillo knows nothing about that. The defendant simply comes to him and says, "Write a report." Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 50 of 1121163 1 Edwin Castillo, you saw him testify. 2 things. 3 But he wasn't confused about one thing. 4 on the case. 5 he was being asked to write a false report or a true report. 6 You know something that Edwin Castillo did not know. There's no questioning that. He was confused about some No questioning of that. He hadn't done any work He didn't know if anybody had. He didn't know if You 7 know that Richard Villarreal cultivated that source and set up a 8 meeting between Wayne Ball and Camillo Garcia and that source 9 sometime in January or February of 2010. You know that it 10 happened. 11 he tried to set up a second meeting. 12 couldn't get it done, but you know that those things happened. 13 And, in fact, you know from Richard Villarreal that He wasn't able to, This is the draft report, Government's Exhibit 12C, that 14 Edwin Castillo wrote. 15 identify and locate the unknown individual. 16 to obtain the individual's name." 17 Edwin Castillo didn't know one way or the other. 18 the defendant to write a report to that effect. 19 know from the email traffic and from looking at the case file 20 itself, that the defendant, the defendant -- and from Castillo's 21 testimony that the defendant changed this wording. 22 "However, due to the lack of tangible leads obtained by 23 Villarreal, the ability to identify the motorist is futile." 24 25 "On January 19, the DHS-OIG attempted to They weren't able You know all that is false. He was told by And what you Same idea. You know from Richard Villarreal that that is not true. when was this written? In February 2011. Why? And To close-out a Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 51 of 1121164 1 dog case. Why would the defendant do that? 2 For the same reason he 3 wanted to impede the inspection. 4 closed out, to look like they were moving timely. What date was this signed? 5 To look good, to get cases We know it was signed in 2011. 6 We know that from Edwin Castillo's testimony and from the 7 documentary evidence. 8 make it look like a timely close-out. But it's dated for January 19, 2010, to And the final count that I want to address relates to Count 9 10 11. 11 about this one involving Castillo. 12 These counts, the intent that the government has to demonstrate 13 is not the intent to impede the inspection. 14 allegation there because of the time that this one took place. 15 And the same with the one involving Rolando Gomez that I'm going 16 to talk about. 17 administration of the case file. 18 And actually you know what? Let me say one other thing And this is important. That's not the The intent is to impede the proper And based on opening statements and based on the 19 cross-examination of the witness -- of the witnesses, the 20 defense wants you to believe these are dog cases going nowhere. 21 They can't be interfered with. 22 Nowhere in the instructions will you see that the quality of 23 the case, the quality of the lead makes any difference. These 24 were open criminal investigations. 25 using your own common sense, your own judgment, how does one And simply ask yourself Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 52 of 1121165 1 know when a case opens where it's going? How does one know when 2 it gets started where it might lead? 3 had Richard Villarreal gotten the second meeting with the 4 source? What might have happened 5 And you heard testimony from J.R. Flores, from David Green, 6 from experienced inspect -- experienced criminal investigators, 7 you never close out a dog case by not telling the truth. 8 never mislead. 9 investigative agent is the cornerstone of the work you do. You You never falsify because your credibility as an If 10 it can't be counted on in the dog cases, it can't be counted on 11 in the cases that go all the way. 12 Count 11 of the indictment, which addresses Rolando Gomez's 13 testimony. 14 recall that Rolando Gomez got up here, and he testified about 15 the fact that the defendant had instructed him to deactivate a 16 source because of allegations against Gomez and concerns about 17 truthfulness, which meant returning her. 18 instruction. 19 Marco Rodriguez. 20 instructed them to do. 21 who arranged the Marshal's staircase for Rodriguez and Saenz to 22 take them out. 23 This is the source issue, you'll recall. Gomez followed that And who took the source back? Why? And you'll Della Saenz and Because that's what Jody Warren had You know that from J.R. Flores as well And you know from Della Saenz's testimony she called and she 24 told Gomez this. And Gomez, doing his job as the case agent, as 25 the handler of the source, wrote a report explaining exactly Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 53 of 1121166 1 what happened. 2 corroborating exactly what he said. 3 need to get this done quick because the defendant cares about 4 this one. 5 defendant to review. 6 The truth that Rodriguez and Saenz took the source back. 7 Rodriguez and Saenz took the source back. 8 9 And he sent that email to the defendant Hey, you know what? We And two days later on May 6th, he sent it to the And what is in this report? The truth. That And what do you know from Government's Exhibit 10B, the very same day? The defendant sends back an email changing it to Joe 10 Blow and Gomez. 11 There is no confusion about who took the source back with the 12 defendant because Gomez walked down the hallway to say, "What's 13 going on? 14 Marco did." 15 And what does Gomez tell you happened next? What is going on? I didn't take him back. Della and And the defendant says, consistent with all the other 16 evidence you've heard in this case about his motives, about what 17 he cares about, "Your name needs to be in there because that's 18 what headquarters wants. 19 Because Gomez is the handling agent. 20 supposed to stay with her throughout. 21 care about what's true. 22 checking the boxes, about keeping the perception up that he's 23 doing his job in accordance with DHS policies. 24 what he was instructed to do. 25 And you know what? That's what headquarters wants." Why? He's the one who's The defendant doesn't He cares about looking good, about And Gomez did During open statement, it was suggested Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 54 of 1121167 1 to you that this was a misunderstanding. 2 misunderstanding. 3 was Gomez who did it because that would make sense because he's 4 the handling agent. 5 Must be a Must be that the defendant thought that it If that's what the defendant thought, would he simply write 6 in a report what he thought was true or what he thought should 7 be the case without going down to his agent to find out what the 8 truth was? 9 information in a report, shouldn't he be going down to talk to If he thought his agent was putting false 10 him about it instead of putting comments like Joe Blow into a 11 report? 12 The defendant didn't care about the truth. You saw Rolando 13 Gomez testify. 14 you're going to hear argument about the fact that he reported it 15 late, about the fact that other people reported it late. 16 didn't even want to admit that he had actually committed a 17 crime. 18 Did he look that happy to be here? He Isn't that why these people -- these witnesses did not 19 report things on time? 20 committed crimes too, and they knew that. 21 falsify reports. 22 I know They committed crimes too. They They know you don't And they did get non-prosecution agreements. You heard 23 testimony about that. But what are their incentives? Their 24 incentives are to tell the truth. The way they avoid 25 prosecution is to tell the truth. Contrast that incentive with Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 55 of 1121168 1 the incentive of someone like Cynthia Hinojosa who was up here 2 not telling you about -- not answering questions about whether 3 she knew about what was going on back in January 2012 about the 4 case file room and whatnot. 5 person who's supposed to be maintaining the integrity of the 6 case files? 7 had anything to do with that or if she knew something about it? 8 9 case files. 12 13 The Does she believe she's going to keep her job if she The defendant corrupted the inspection. He corrupted these Find him guilty of these crimes. THE COURT: 10 11 What are her incentives? Thank you, Mr. Cooney. Tell you what, Mr. Eastepp. Why don't we take a short stretch break here and then come back. (Jury leaves courtroom) THE COURT: 14 Before we leave, counsel, let me broach 15 something about the instructions. 16 reason I don't give it to them while I read it because I always 17 find something when I read it. MR. COONEY: 18 19 20 21 At least this is the second And I did find something. I really hope it doesn't impact what I just argued. THE COURT: No, it didn't. It won't. If you have your instructions with you, if you look on page 22 1, the very first -- at the bottom paragraph, a normal part at 23 least of my instructions would include the following. 24 with, "In other words -- in other words, the defendant is 25 presumed by you to be innocent throughout your deliberations Starts Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 56 of 1121169 1 until such a time you are satisfied that the government has 2 proven the defendant guilty beyond a reasonable doubt. 3 does not require a defendant to prove his innocence or produce 4 anything at all or evidence at all or to testify. 5 defendant may not have testified -- since the defendant has a 6 right to remain silent, the law prohibits you from considering 7 the fact that the defendant may not have testified in your 8 verdict." 9 The law Since the That was not in there, and it's normally a part of my deal. 10 And I think when we were drafting this initially, we thought the 11 defendant was going to testify. 12 paragraph to the jury as corrected when we come back. 13 any objection to that? 14 MR. EASTEPP: 15 MR. KIDD: 16 THE COURT: I plan on rereading that entire Is there No, sir. No, Your Honor. Okay. And then when it gets submitted, it 17 will have that extra statement there about the defendant, you 18 know, has the right to remain silent and you cannot use that 19 against him. 20 All right. And then, Mr. Eastepp, I'll call on you. 21 MR. EASTEPP: 22 THE COURT: 23 24 25 Okay. And obviously that will be in there when it goes back. MR. COONEY: When it goes back. (Recess taken from 11:28 to 11:39.) Thank you, Your Honor. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 57 of 1121170 1 2 THE COURT: Y'all can be seated. Mr. Eastepp, you ready? 3 MR. EASTEPP: 4 THE COURT: 5 6 7 I am, Your Honor. All right. They're just about. (Jury enters courtroom) THE COURT: All right. Ladies and gentlemen, be seated. Before I call Mr. Eastepp, I want to make sure that I've 8 read one of the instructions right, so I want to reread it just 9 to make sure that it's clear. 10 11 And, of course, you'll have this to refer to. "But the indictment or formal charge against a defendant is 12 not evidence of guilt. 13 be innocent. 14 defendant starts the trial with a clean slate. 15 the defendant is presumed by you to be innocent throughout your 16 deliberations until such a time that you as a jury are satisfied 17 that the government has proven the defendant guilty beyond a 18 reasonable doubt. 19 The defendant is presumed by the law to The presumption of innocence means that the In other words, "The law does not require a defendant to prove his innocence 20 or produce any evidence at all or to testify. Since the 21 defendant has a right to remain silent, the law prohibits you 22 from considering that the defendant may not have testified in 23 arriving at your verdict. 24 reasonable doubt that the defendant is guilty, that presumption 25 alone is sufficient to find the defendant not guilty." Unless you are satisfied beyond a Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 58 of 1121171 1 2 3 All right. I just wanted to make sure I read that correctly and that we had everything in. When my daughter was growing up, she always preferred my 4 wife read to her because I would skip all the important parts. 5 I'd go right to, "They lived happily ever after," close the 6 book, go to sleep. 7 All right. 8 9 Mr. Eastepp? MR. EASTEPP: Mr. Pedraza: May it please the Court, counsel, First, ladies and gentlemen, as Judge Hanen 10 earlier this morning thanked you at the conclusion of reading 11 the instructions, I too on behalf of my client want to thank you 12 for your close attention this week. 13 As I told you on opening statement on Monday, I used a 14 couple of examples. 15 TV show example, that you see it and you think it's going to be 16 really something? 17 be quite what you thought it was going to be. 18 Remember the movie trailer example or the And then you see it, and it turns out to not That's what's occurred in this case, and I want to go over 19 it with you. There really is a most reasonable set of facts as 20 to what likely occurred throughout this whole set of events. 21 There is a unified theme that runs throughout what occurred. 22 The theme is not as I -- as I think Mr. Cooney was trying to 23 tell you, his theme is that Mr. Pedraza was trying to save his 24 job or keep his job. 25 was about that. That that's their theme; that all of this Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 59 of 1121172 1 Frankly, he had the job. He had been promoted. His 2 evaluations are in there for you to see. 3 risk at any one moment, particularly with this inspection that 4 was an open book test. 5 His job was never at That's not the theme of this case. The theme of this case, as I told you too on opening 6 statement, is it's this issue that his employees didn't like him 7 and they wanted him out of there, and they wanted to use that 8 inspection as the conduit to get him out of there. 9 it all starts flowing from when you really look at the evidence That's where 10 that came to you from that chair and from these documents during 11 this week. 12 I spoke some of the history on my opening statement, and I 13 think both sides asked questions of various witnesses about the 14 history of this agency. 15 way back in my opening statement, this really does go back to 16 9/11 when all those terrible events happened that caused the 17 Congress and the president to create a Department of Homeland 18 Security that came into being by 2003, as you heard particularly 19 from Agent Green and J.R. Flores when they testified. And as you heard, as I told you all the 20 You heard that my client was with the agency in McAllen 21 pretty much from the beginning and kind of proceeded up the 22 ranks. 23 history. 24 in charge, office with supervisors in Houston at that time to 25 where it later became its own field office with a SAC, meaning What J.R. Flores also told you, he told you some of the Started as a RAC. Remember that term, resident agent Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 60 of 1121173 1 the head of it is in McAllen; of course, Laredo and Brownsville, 2 as we now know, reported there. 3 the office. 4 But you heard of the growth of You also heard from J.R. Flores that as he observed it -- 5 and he's a veteran agent, a veteran law enforcement man. 6 as the agency grew, so did the problems, so did the paperwork. 7 He talked to you about the hiring. 8 questions: 9 somebody had to be hired real quick? 10 11 That If you recall, I asked him Were there times that people -- jobs were posted and And he said: Yes, sir, that that happened. And he told you and I think Special Agent Green told you 12 that by the time this inspection rolls around, there was a mix 13 of talents in that office. 14 federal law enforcement field. 15 hard chargers and he had some that weren't. 16 out of his mouth. 17 These were not all the stars of the As Dave Green said, he had some Those words came So you've got Special Agent Pedraza, who's been promoted up 18 the ranks. 19 J.R. Flores that no doubt, Mr. Pedraza is a nervous guy, 20 pressure builds on him. 21 Flores. 22 The bureaucracy has gotten greater. You hear from You heard all that directly from J.R. You also saw all of this email traffic going back and forth 23 with these MOAs and these various issues that were going on in 24 this case or in the cases pending back then at the agency where 25 he's doing all those extensive edits. And I think you can see Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 61 of 1121174 1 how some of those agents probably got extremely frustrated. 2 That's where some of this starts building; that you hear that 3 he's, you know, a tyrant or bully or whatever terms they were 4 using to describe him. 5 So when the fall turn -- of 2011 comes around for that 6 inspection, this is their chance. You hear that they're talking 7 about him. 8 particularly the ones that would be truthful to my questions 9 when I asked and would be forthcoming to answer my questions on It was clear from the testimony of these agents, 10 cross-examination, like Edwin Castillo and J.R. Flores, that 11 they didn't like him, and they were all hoping that somehow this 12 inspection was going to get him either out of there because he's 13 fired, or get him out of there because he's transferred. 14 Vargas told you those things. 15 fired, but if he wasn't around" -- you know, they were going to 16 be okay with that. 17 the inspection starts so they could load up on Gene Pedraza to 18 tell them. 19 "Well, maybe I didn't want him So they are lined up to shoot for bear when Well, what do they need? They need some things to tell the 20 inspectors about him. 21 he makes me -- he edits my papers. 22 than that. 23 what is it going to be? 24 25 Robert It can't just be, well, you know, golly, It has to be something more So they all start talking about, among themselves, What are we going to tell them? Well, again, the one thing that they didn't really understand about these -- the cases and the process that you all Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 62 of 1121175 1 now fully understand, it is just an uncontested fact that this 2 inspection was an open book test. 3 that they knew coming in what files are going to be looked at. 4 She had flown to Tucson and watched the prior one. 5 completely what was coming. 6 This inspection was not some thing that they were going to fear. 7 Does that mean he was not nervous about it as you heard 8 evidence? 9 J.R. Flores from lots of things. 10 Cindy Hinojosa told you that, They knew This wasn't some big surprise. Sure he was nervous, but he seemed to be nervous from But is it this thing that his whole career was somehow 11 riding on the results of this inspection, on this open book 12 test? 13 office to look good? 14 your federal employees that are running offices at any agency to 15 want that office to be the best it can be so that it's spending 16 your tax dollars the best they can spend them? 17 him for wanting it to be good? 18 That is just a ludicrous proposition. Let me ask you this. with that. 20 responsibility as the leader. 21 come back on him. 22 his evaluations. 23 test. 25 Don't you want all Can you blame That's what a good manager does. So when he tells J.R. Flores that, there's nothing wrong 19 24 Did he want the "I want it to be good." And he also accepts the If it comes back, it's going to But he wasn't going to lose his job. He had a very safe job. Look at This was an open book I'll go over it more, but the end of that is we know what the inspection report itself shows. Essentially passed with Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 63 of 1121176 1 2 flying colors, but I'll talk about that more in a minute. So the agents get together. Now, let's talk about, you 3 know, the inspection comes. 4 and start saying something turned out to be Edwin Castillo where 5 he -- you know, he tells the interviewer, who y'all have heard 6 identified as Mr. Izzard or Special Agent Izzard, you know: 7 think Gene made me do something with an MOA. 8 looking into it. 9 Well, first, the first one to break And Izzard starts Well, next we find out, Vargas tells you he doesn't know 10 how, but he gets the call, and Izzard is now asking him 11 questions, and he starts telling his version of events. 12 I Then you hear -- you hear that Vargas also told you at this 13 time and on this theme that they were out to get him, that 14 Vargas says he and his partner Kris Healey didn't like Gene 15 Pedraza, and they had been talking about that, that they didn't 16 like him. 17 something about it. 18 So now this becomes Vargas' opportunity to do So leading up, what has he done? Vargas has told you -- and 19 I'll go into it in more detail about these changed MOAs that he 20 changed from his own work to make them look as real as he could 21 make them look to fool whoever would look at them, including my 22 client. 23 So here's the inspection. You know, it's Edwin and it's 24 Vargas and these events are known. They're known before these 25 inspectors ever leave that these agents have said things about Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 64 of 1121177 1 the MOAs. 2 brought up from Brownsville to McAllen. 3 they're returned to him in pristine form, meaning no one has 4 taken anything out of those files. 5 at, they're gone. 6 You hear this issue that Vargas' work files are You're also told that They come up, they're looked Well, the inspectors leave. Well, at this point in time, it is very clear in this 7 record -- it should be very clear to you all -- that the 8 Department of Homeland Security-Office of Inspector General at 9 the Washington level knew that these agents were making these 10 allegations that there may be issues with their paperwork. 11 That's not some big secret by the second week of September in 12 2011. 13 So what happens next? Well, the agents are hoping that 14 because Castillo and Vargas have told the inspectors about these 15 MOAs and that all of the agents have told them about this morale 16 issue, that Gene Pedraza is going to be gone. 17 working perfectly in their minds up to that moment, that he is 18 not going to be around any longer. Their plan is 19 And as Vargas told you, James Izzard was my game plan, 20 meaning Vargas gets to keep his job because he's going to tell 21 bad stuff about Gene Pedraza and Gene Pedraza is going to be 22 gone. And Vargas skates, everybody skates with the stuff they 23 did. They go on, but they've gotten Gene Pedraza out of their 24 life because he's either fired or transferred. 25 Well, then, what happens? There's deafening silence. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 65 of 1121178 1 They're expecting their headquarters to take care of this. 2 Well, of course, again, they didn't know this was an open book 3 test. 4 as did Ms. Hinojosa, as she told you that they both knew. 5 Headquarters knows all this stuff, and nothing happens. 6 Gene Pedraza knew what was coming with this inspection, Well, the agents are more infuriated. You hear about this 7 meeting where one of the -- where the realignment occurred; 8 where Mr. Frost, as you heard his name mentioned, comes down to 9 McAllen. That's where Mr. Beauchamp in Houston is made the 10 regional special agent in charge, if you remember that term, and 11 that's when Mr. Pedraza's title switches from special agent in 12 charge to associate special agent in charge. 13 fall. 14 That's in the Well, the agents are expecting when headquarters comes down, 15 because this is -- I think is the time period that was placed 16 during the testimony, was around October, so it's two or three 17 weeks after inspection. 18 coming down; Gene Pedraza is out of here; you guys have won; and 19 y'all are now -- you know, the inmates are running the asylum, 20 as the old cliché goes. 21 They're expecting the headquarters is But that doesn't happen. Well, they then get Dave Green sent. And no doubt, Dave 22 Green is a straight up, good agent. I do not dispute that for a 23 moment. 24 dissatisfied that Dave Green is there. 25 not formally named as the supervisor, right? But he's got a bunch of people who are still And as he told you, he's He's there in this Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 66 of 1121179 1 temporary role. 2 uncomfortable because Mr. Pedraza is still the associate special 3 agent in charge. 4 Green told you, he's having to do some liaison talking to 5 Mr. Pedraza. 6 Even he talked about it. It was a little He's still there fully empowered. As Dave But it's at this time that he decides, "he" being Dave 7 Green, what I'm about to say. Dave Green decides he wants to 8 take over some more of the duties, and he's going to do case 9 reviews. Because remember about this time, as you heard in the 10 testimony, Jody Warren has retired, so there is no longer an 11 ASAC. 12 reasons he was temporarily sent in there. 13 Dave Green told you about that. That's one of the So you've got Associate Special Agent in Charge Pedraza, and 14 then Dave is kind of in that role that Jody Warren was in. 15 William Warren, obviously as you heard, was his formal name. 16 So now they -- gets to these case reviews. 17 agents are still upset. 18 office. 19 Well, these Gene Pedraza is still in the big He's still in charge. So what do they do? Now it comes to this case review things that y'all heard 20 testimony ad nauseam about over and over again. 21 at the moment Dave Green sat down and started doing case reviews 22 that is without a doubt uncontroverted; you can take it as fact? 23 I went over it yesterday in that inspection report. 24 25 What do we know If you look in that inspection report, they reviewed whether that office was doing their case reviews in a quarterly manner. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 67 of 1121180 1 It is in there. 2 accordance with the Special Agent Handbook. 3 there with you. 4 that report. 5 It says they were, in fact, doing them in You can read it. It will be back What I'm telling you is in So when Dave Green sat down doing them and those agents 6 start saying, "Dave, we haven't done this before." Remember, 7 Gene Pedraza is not in the room when those statements are being 8 made. 9 agents start saying, "Well, Dave, we hadn't done it in this Dave Green wasn't around before the inspection, so these 10 exact form." 11 reviewers reviewed at the inspection, they would have been 12 critiqued on it. 13 it correctly. 14 reviews had been done. 15 Well, they had been being done, or when the They wouldn't have been told they were doing So you can accept that as fact, that those case They may not have been done in the exact form and fashion. 16 That's why I went over some questions with Dave Green. 17 you talk to somebody in the coffee room and got an update, 18 you're not going to make the agent come sit in a chair in front 19 of you to tell you the same thing five minutes later. 20 would be silly. 21 that. 22 ought to be doing, is trying to catch bad guys, not sitting 23 around doing case reviews all day. 24 25 Well, if That Again, you don't want your bureaucrats doing You want them out doing what these law enforcement guys So at the point in time Dave Green starts sitting down, now they're -- they're still dumping on Gene Pedraza. They want him Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 68 of 1121181 1 out of there. 2 doing these things." 3 "Well, Dave, you know, he wasn't doing -- wasn't Well, then, you know, they still are looking and hoping that 4 Gene Pedraza will get fired. 5 that's still their hope. 6 So throughout the fall of 2011, And then suddenly, I think particularly for Robert Vargas, 7 the big oops moment came, which is when he did what he did on 8 his own when he prepared false MOAs, he thought it would stay 9 in-house; that nobody would see it but maybe the inspectors 10 during that inspection. 11 here in Brownsville at that meeting and the FBI agent says, 12 "Could you stay after the meeting? 13 the agency that want to talk to you." 14 But the big oops moment comes when he's There's a couple guys from And that's the big oops moment to Robert Vargas where he 15 realized: 16 Pedraza out of there is completely blowing up in our face. 17 FBI is involved. 18 let's get Gene Pedraza thing out of there. 19 investigation with the FBI and with federal prosecutors from the 20 Department of Justice in Washington, D.C. 21 Vargas is thinking. 22 Oh, my God. This little plan we had just to get Gene The This is not just some in-house inspection It is now a criminal "Oh, my God," Robert That's why you heard him tell you that in that first meeting 23 with the FBI, he didn't say, "Thank you guys for coming. 24 are going to help me get Gene Pedraza out of there." 25 just the opposite. Y'all He did He went, "Hey, I ain't talking to y'all. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 69 of 1121182 1 What am I? 2 talking to y'all." 3 he's scared to death because again, their plan has blown up in 4 their face. 5 Am I witness? Am I target? What am I? Because he now knows that it's on him. But then manna from heaven falls in their lap. 6 manna from heaven? 7 or Special Agent Gomez or Special Agent Castillo. 8 Pedraza. 9 going to give you immunity." 10 We want Gene So after his big oops moment, they got that gift from heaven 12 about Gene Pedraza. 13 you heard in here. 16 What's the You tell us bad stuff about Gene Pedraza, and we're that they get immunity. 15 And "We're not after you, Special Agent Vargas 11 14 I'm not All they have to do is say bad stuff That's what is the overall theme of what That's what really occurred. Now I want to talk about what you heard in this courtroom about all these events that I've talked about. Let's break it down somewhat by individuals. Remember, as 17 Mr. Cooney told you, the events with Edwin Castillo and Rolando 18 Gomez are not part of the conspiracy. 19 inspection because they occurred earlier in 2011. 20 Edwin ups it; you know, tells the inspection: 21 maybe did something wrong. 22 you're back there deciding, Edwin Castillo and Roland Gomez are 23 not named as co-conspirators with Gene Pedraza in Count 1 of the 24 indictment. 25 They're not part of the Of course, I think Gene But otherwise for your purposes when But what -- when you hear and you saw Edwin Castillo come Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 70 of 1121183 1 testify in here, folks, he was one of the more honest witnesses 2 that you saw, because here's what occurred with that file. 3 went over it with him, this issue of a supervisor coming with 4 some file that needed to be closed was a fairly routine thing. 5 That was not some extraordinary or out of the ordinary sort of 6 thing for Special Agent Pedraza to take a case to somebody like 7 him and get a -- you know, hey, this just needs to be closed. 8 9 As I And this issue about Richard Villarreal coming in here and telling you? And I'm sure that was all totally correct. But 10 what you don't know and what Edwin Castillo didn't know and what 11 Gene Pedraza didn't know from the file is the following. 12 know, Mr. Villarreal tells you that, well, Wayne Ball and 13 Camillo Garcia come out and they talk. 14 reports on that, it would have made it into that file. 15 whether they did and they had just not been filed yet or they 16 got misfiled in another file or those two guys were lazy and 17 didn't do a report, whatever the situation is, it's very clear 18 from what the government put into evidence, because they put the 19 case file in. 20 So anybody who picked it up, be it Gene Pedraza or Edwin 21 Castillo at the point in time Edwin Castillo was tasked with 22 closing it out would not have known that information. 23 your purposes of deliberation, it's essentially worthless. 24 25 You Well, if they did And so There is not any mention of any of that in there. So for Again, I'm sure Mr. Villarreal was telling you a thousand percent the truth. But this issue of imputing that on to Gene Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 71 of 1121184 1 Pedraza and Edwin Castillo at the moment Edwin Castillo was 2 closing that file out, you just simply can't do that because 3 nothing was in that file that would have indicated that to 4 anybody who picked it up at that discrete moment in time. 5 So Edwin Castillo drafts a little memo. It's clear from the 6 cross-examination that he missed that Rudy De Luna report that I 7 went over with him. 8 there. 9 look at the edits that came down after they went through Gene He agreed he didn't -- didn't see it in And I went over the time frames with him that if you 10 Pedraza's editing where it simply changed it to say, "In the 11 ensuing days and weeks" -- and I did the math. 12 what they knew or what was in that file at the time. 13 It's 15 days of And so the most honest thing that after that when I asked 14 Edwin Castillo -- if you remember, I even prefaced it. 15 been waiting to ask you this question, Mr. Castillo. 16 ever thought you made a mistake in thinking that Gene improperly 17 either asked you to change something or he, in fact, did change 18 something improperly?" 19 And if you saw, he swallowed hard and he thought. "I've Have you And I 20 guarantee you the thought that was going through his mind was 21 not just my question and what his answer was, but whether his 22 answer would violate his immunity agreement, because it would be 23 backing off saying something bad about Gene Pedraza and was 24 afraid they would jerk his immunity out from under him and he 25 would be prosecuted. But I give that young man credit because Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 72 of 1121185 1 he told you the truth. 2 mistake." 3 4 5 He said, "Yes, sir, I might have made a Now, contrast that next with what happens with Roland Gomez and the situation and his testimony in this courtroom. Roland Gomez tried to sell you on the theory when I asked 6 him a series of questions about, well, weren't you concerned 7 that this woman source was telling the Dallas agents that you're 8 a bad guy and had done bad stuff to her and she's reporting that 9 to headquarters and all that? Remember it? "Mr. Eastepp, it 10 was no big deal to me what she said about me. 11 investigated me, who -- you know, no big deal." 12 That's just wholly unbelievable. If they And remember in the 13 charge, there's a series of questions on page 3 that Judge Hanen 14 read to you that say things: 15 honest? 16 the truth? 17 outcome of the case? 18 either the government or the defense? 19 have a good memory? 20 things about which he or she testified? 21 Did the person impress you as Did the person have any particular reason not to tell Did the witness have a personal interest in the Did the witness have any relationship with Did the witness seem to Did the witness clearly see or hear the When Mr. Gomez is telling you those things, that's just 22 wholly unbelievable, that anybody who's a federal agent that has 23 a source saying: 24 improper, a female source to a male agent, that he would not be 25 concerned about that? Hey, this guy did something to me that's Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 73 of 1121186 1 So now we get into what happens that morning. We know 2 Special Agent Pedraza was in his office. 3 lots of testimony about that, that he was in his office that 4 day. 5 those things, if you really look at all the testimony you heard, 6 you only heard that from Roland Gomez. 7 That's -- seemed to be But this issue that he was around or outside the door, What you hear is what's going on in the room. It's Special 8 Agent Marco Rodriguez, Special Agent Della Saenz is the female 9 agent in there, and Roland Gomez is in there. And at some point 10 the ASAC, Jody Warren, comes in there; this issue about her keys 11 and those things. 12 down the back stairs by Roland Gomez and Della Saenz. 13 through the front door, not past Special Agent Pedraza's office, 14 but out a back stairwell and taken to Mexico. 15 And then there's this issue that she's taken Not out Well, it is just simply also a fact that Roland Gomez was in 16 charge of her. That's -- he admitted it. Everybody talks about 17 that, that under the rules of the agency, he was responsible for 18 her as the agent who had signed the paperwork that allowed her 19 to get the parole documents to get into the country, and it was 20 also his responsibility to get her out of the country. 21 Well, you know, he wants to cover that too. He doesn't want 22 to get in trouble with his headquarters, right? They're already 23 looking at him over what's going on with the allegations that 24 she's making. 25 version of it, sends it to Gene Pedraza. So, you know, he drafts that first MOA, the first And here's where it Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 74 of 1121187 1 starts differing, whether there's evidence in the records 2 sufficient to believe that Gene Pedraza knew that Roland Gomez 3 had not taken her to the river. 4 Well, certainly you heard all the testimony, as I just went 5 over. 6 He's in charge with her. 7 routinely; that the handling agent would be the agent that would 8 also take the person to the river. 9 There's no doubt, it was Roland Gomez's responsibility. Of course, it's Jody Warren, as you hear, makes the 10 decision: 11 she's made allegations. 12 That would be what would happen Hey, y'all don't -- Roland, you don't go because Della and Marco take her. Well, again, those con -- when you were told that, you're 13 not told Gene Pedraza is anywhere around when that happens. 14 only knowledge that's imputed to Gene Pedraza comes from Roland 15 Gomez saying that he stepped out in the hall and just the two of 16 them standing there, meaning Gene Pedraza and Roland Gomez, that 17 Roland Gomez says: 18 Of course, it's not tape recorded, as I asked. 19 witness to that or anything like that. 20 The Hey, Marco and Della took her to the river. Now, the paperwork starts being prepared. There's not a He sends that 21 first draft. Well, it no doubt said Marco Rodriguez and Della 22 Saenz. 23 Roland Gomez and Joe Blow. 24 indicate that there was somebody named Joe Blow, right? 25 wasn't unusual in Pedraza's No. 7, which were the Vargas emails. You see the edit coming back from Gene Pedraza with that Clearly y'all know that doesn't It also Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 75 of 1121188 1 We put in a whole series of e-mails to show some of the giving 2 back and forth between Pedraza and Robert Vargas. 3 admitted for y'all to look at, not because of the truth of the 4 matter, but to see the words in them. 5 And they were And one of them dated August 22nd, you see on the edited 6 copy, if you look, "SA Vargas and Healey met with FBI Agent Joe 7 Blow." 8 9 Well, I submit to you in that version too, there's not an FBI agent named Joe Blow. That's just part of the editing 10 process and that suggested that somebody -- any editor would put 11 when they don't really know exactly what went on. 12 So seeing Roland Gomez -- and it's logical that Roland's 13 name would be in the edit because again, Roland, right? 14 the agent in charge of that informant under all the rules. 15 Joe Blow is "I don't know who the second agent was. 16 name of the second agent." 17 heaven for Roland Gomez because that gets him off the hook with 18 his headquarters that he's not the one who took her to the 19 river. So he very willingly wanted to put his own name in 20 there. That's why he told you: 21 I completely forgot about it, didn't tell the inspectors later, 22 didn't tell anybody later until the criminal investigation 23 started. 24 25 He's The Fill in the And again, that had to be manna from It was a fairly minute detail. Oh, yeah, because remember, the activist lawyer calls? new supervisor in Houston says, "I want a report." His He thinks Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 76 of 1121189 1 it's now going to be exposed, and it's going to be exposed on 2 him that he was not the one who actually took her to the river 3 and that he's going to get in trouble with his headquarters, so 4 what do you do? 5 hallway." 6 Gomez. 7 "Well, Gene made me. I told Gene in the Of course, there's no witnesses to that but Roland Again, that gets him off the hook. Then it rolls around and he gets criminal investigators from 8 the FBI and Department of Justice coming to him saying, "We're 9 not after you. We're going to give you immunity. You just got 10 to say Gene Pedraza." 11 Well, I told him out in the hall that he knew this. 12 manna from heaven for Roland Gomez. 13 Well, the only thing he can say is: Again, Now, we look at, you know, Della Saenz and J.R. Flores. 14 Della Saenz first. 15 to her door and says, "Hey, there's a gap in the file." 16 says, "Gene, I didn't have the file. 17 have it then. 18 it," and he was happy and walked away. 19 All she said to you was Gene Pedraza comes I just got it. She I didn't I will write you a report that says I just got Why would she then say in her mind he's making her do 20 something improper? If you look at her exact testimony and what 21 she told y'all, there's no way somebody could interpret those 22 events that he's asking her to do something wrong by saying, 23 "Hey, there's a gap here." 24 report saying I just got it." 25 "Okay, fine," and leaves. And her responding, "Well, I'll do a Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 77 of 1121190 1 How is that asking anybody to do anything improper? How 2 could she have ever formed that opinion? 3 because again, going back to the plan. 4 rid of Gene Pedraza. 5 thought he meant make up stuff even though I gave him a 6 legitimate answer, drew up a legitimate MOA, and he was 7 legitimately happy with it, I'm still going to make it up." 8 And on the subject of her, I showed her some of her own 9 The only way is Well, the plan is to get "So I'll tell people that in my mind I paperwork, so dates being wrong means somebody committed a 10 crime? Well, I guess she did too, because I showed y'all those 11 dates where she wrote the associate special agent in charge on 12 his name with dates in July and September before the title ever 13 came into being in November. 14 with incorrect dates. 15 happen. 16 does not mean that's a crime. It clearly meant those were signed But again, as I told her, mistakes Just because there's some date on a form that's wrong 17 Just as Judge Hanen told you, just because some policy was 18 not followed does not mean it's a crime, nor are you to accept 19 that it's a crime just because some policy was not followed. 20 Now we move to J.R. Flores. Again, I think like Edwin 21 Castillo, J.R. Flores had a real honest moment with you in this 22 courtroom where he really gave you his true feelings. 23 he tell you? 24 enforcement agent at the point in time before the inspection 25 that Gene Pedraza goes to him and says: What does For one thing, without a doubt, he's a veteran law Hey, there's nothing in Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 78 of 1121191 1 2 this file, J.R. And J.R. said: Well, you know, I just got it. What he told you was he wasn't ordered to do anything. 3 got a question. 4 question. 5 can be written up?" 6 That's a question when you don't know if those things exist or 7 not, if there's not notes in the working file or not. 8 there surveillances that can get written up?" 9 And I went over that with him. He He got a "Well, aren't there surveillances or something that That's a question. That's not an order. "Aren't He gets the response back from J.R., "Well, you know, you 10 need to go ask the -- whoever had it before me." 11 the conversation. 12 add: 13 that, that he probably did look flushed. 14 inspection. 15 sure everything is okay, as any good manager would do, as I told 16 you. 17 anything wrong. 18 And he says: Gene Pedraza -- he wants to Well, he looked flushed, or whatever. Well, I'll give him It's right before the He notices how nervous he is. So he walks away. And that ended He's trying to make That's not telling J.R. Flores to do And the honest moment I had with him when I said, you know, 19 this nervous guy, as you've described him that you've worked 20 with for about eight years at that time, he doesn't have the 21 nerve to go to a guy with your law enforcement experience and 22 ask that person to commit a felony offense, does he? 23 Flores told you, "No, he doesn't." 24 honestly. 25 nerve to go ask somebody, a law enforcement agent to commit a And J.R. He answered my question He told y'all honestly, Gene Pedraza didn't have the Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 79 of 1121192 1 felony. 2 doing was just talking to him about a case file. 3 answer and he walked away. 4 anything improper. 5 in this case. 6 All J.R. -- all Gene Pedraza in those questions were That's not asking somebody to do That's not the testimony that was presented Then again we get to these case reviews and missing case 7 reviews and those things. 8 second. 9 He got an First -- if you'll pardon me just one First, what you need to know is the government's theory. 10 It's in the indictment. 11 case reviews were taken out of anything. 12 reviews, what the government has alleged and what's in the 13 charge and what you'll see when y'all get back there, you've 14 already heard it from Judge Hanen, is they say they're falsified 15 case reviews. 16 It's in your charge. It does not say Anytime you see case Not case reviews, falsified case reviews. Well, again, the files had been inspected. A huge majority 17 of them -- that's in the inspection report -- had been looked at 18 as part of the inspection process, and nowhere in there do they 19 say there was anything wrong with them. 20 not that these are just plain old case reviews. 21 believe they're falsified case reviews. 22 that inspection report rebuts that immediately. 23 So you have to believe You have to And I'm telling you So when you're back there deliberating, if you find that, if 24 you look at that inspection report and you see what I'm telling 25 you is in there, that they looked at these case reviews and Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 80 of 1121193 1 they're not falsified, that ends your inquiry on Counts 12 and 2 13. 3 That's not guilty right there. So now we get to this issue -- I'll go ahead and talk about 4 it -- about him, quote, being missing and how that might have 5 happened. 6 Well, that's where Ms. Hinojosa comes in. And Mr. Cooney 7 tried very hard to impugn that woman's credibility and her honor 8 and her truthfulness, and all she's done for the last 30 years 9 is serve the people of the United States honorably with the 10 Internal Revenue Service in a very serious, important job within 11 their Criminal Investigative Division, and then serve the people 12 of the United States in the Department of Justice-Homeland 13 Security that she still works for. 14 responsible position today. 15 And the same agency that hired her and reviews her and sees her 16 day-to-day has left her in there. 17 she steals stuff out of official files or destroys stuff or 18 because she's the good employee that she appeared to be? 19 think that you all know that she is. 20 She is still in that Her own agency has left her there. Do you think that's because And I So Ms. Hinojosa, she never -- one of the things you have to 21 find in Count 12 about these missing files beyond this falsified 22 thing I've already gone over is that there's some nexus to the 23 grand jury event. 24 all this had to occur, and y'all have to find it occurred in 25 this very defined time period. Well, there's a very defined time period when Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 81 of 1121194 1 The nexus has to be that y'all know that Gene Pedraza is on 2 notice of this grand jury investigation. She actually told you 3 when it came down to this issue of how he found out; that it 4 became travel orders from agents. 5 was she didn't really recall what day that was. 6 recall that it was on the 25th of January. 7 answer was when asked on the witness stand. 8 recall. 9 trying to get y'all to accept that it really only happened on She had -- her answer to that She did not That's what her She didn't really Because there -- clearly the government I think is 10 one day, the 25th. 11 exercise with that videotape, that it only happened on the 12 25th of January of 2012. 13 That's why they went through the whole And, of course, they only played you, what, a couple of 14 minutes? 15 on cross and counted. 16 her answer. 17 the intern to go in and check and see how many of those case 18 reviews were missing. 19 And she and I, remember we stopped it when I had her She counted I think ten or 11 files was Dave Green says it was over a hundred once he got Over a hundred. There are cameras everywhere, folks. You now know it. Dave 20 Green told you before you ever saw the video. You know that 21 when somebody opens that door to the file room and gets 22 anything, that there's going to be a picture of it. 23 you two minutes with ten files on January 25th according to some 24 key card data, and they want you to accept that that means that 25 100 of them were taken. They played That is a huge failure in their proof. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 82 of 1121195 1 2 That too, along with the falsified thing. But on top of that, I'll take it a step further. Dave Green 3 told you that he gave it a time period of they could have been 4 missing from about November to about March the 1st. 5 Pedraza -- it is uncontested because Dave Green sat there on the 6 morning of February the 9th when Gene Pedraza showed up for 7 work, Dave Green and Ron Moore from Houston handed Gene Pedraza 8 a letter saying you're on administrative leave. 9 leave the office and just go home. 10 Gene You have to So if it happened after February the 9th, as Dave Green 11 speculated it could have, up to March 1 -- and he's the only 12 source. 13 files. 14 are missing?" And mind you this. I asked him that. You didn't see a list of those "Is there a list of these things that 15 "Well, no." 16 They just want you to guess on that too. But again, if it 17 happened after February 9th -- really after February the 8th, 18 because he's put on leave immediately upon the start of the 19 workday on the 9th, as Dave Green told you it clearly could 20 have, all the way up to March 1st, Counts 12 and 13 go away. 21 Those are not guilty. 22 make on those two things. 23 That's the only fair decision you can There's just simply no evidence when you look at it that 24 Gene Pedraza took anything. 25 long. They can say he had motive all day I can tell you there were agents that had motive on this Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 83 of 1121196 1 plan that I told you get rid of him. 2 telling Dave Green: 3 though, as I told you, the inspection report says they were. 4 They're not being done. 5 Well, let's take some. 6 They're running around Well, case reviews weren't being done, even How can we make Gene Pedraza look bad? And you look at that card key data that we put in. There's 7 lots of people, including that student intern that's going in 8 and out of there all of the time. 9 that could have gotten to files and done things. 10 11 There's lots of other people There's simply no evidence that Gene Pedraza did that. Now, quickly going through the counts, and then I'm going to 12 kind of wind up with -- like Mr. Cooney with some suggestions 13 about maybe a good starting point when y'all get back there. 14 Count 1. You need to remember that the indictment alleges 15 that there's three conspirators besides the allegation against 16 Mr. Pedraza. 17 Wayne Ball. That's Marco Rodriguez; it's Robert Vargas; it's 18 Count 2 is Robert Vargas and Wayne Ball and the same MOAs. 19 Count 4 and Count 6 are Marco Rodriguez and my client. 20 Count 10 is Edwin Castillo. 21 Count 11 is the Roland Gomez. 22 And then Counts 12 and 13 I just went over, which are the 23 24 25 taking those things out of those two files. Here's what I think is a good way for y'all to deliberate. And obviously, as Mr. Cooney said, it's completely your Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 84 of 1121197 1 decision, but a good starting point to go through all this 2 evidence, which would be to get back there and first y'all all 3 look closely at that inspection report first just to kind of 4 kick it off. 5 what's in that inspection report and what kind of employee he 6 was throughout the time period that those evaluations show. 7 And, of course, as Mr. Cooney told you, that inspection report 8 is not finalized until January 5th of 2012, almost five months 9 after all these events are known of what Castillo and Vargas And look at Mr. Pedraza's evaluations and see 10 have said about these MOAs. 11 to look at it, whether there's any administrative problems. 12 You'll see their answers are in that report. 13 there at that moment in time saying this is a crime. 14 saying these were internal matters that we've handled and 15 they're over with. 16 Pedraza is not fired. 17 The agency has had plenty of time There's nobody in They're And again, the agents are mad because Gene If you look at those things, the evaluations. And again, 18 his last evaluation came, is signed by supervisors in November 19 of 2011, two months after the inspection when all these events 20 are known. 21 They're still saying he's a valuable employee. So then if you will start looking at Counts 12 and 13, as I 22 just went over with you. That if you start looking, there's not 23 falsified case reviews, that the case reviews were being done 24 anyway, that there's no proof Gene Pedraza took anything out of 25 any file. If you look at those two, you're going to start Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 85 of 1121198 1 seeing right off the bat that you have to find not guilty 2 immediately on 12 and 13 because there is simply no quantity of 3 evidence that would ever add up to a reasonable doubt based upon 4 reason and common sense after careful and impartial 5 consideration. 6 a convincing character, you would be willing to rely and act 7 upon it without hesitation in the most important of your own 8 affairs. 9 counts. 10 That is proof beyond a reasonable doubt of such There's simply not anything near that for those two Next the Marco Rodriguez's counts would be, I think, a next 11 logical starting point for you to go to next. 12 I told y'all on opening statement, you are not going to hear -- 13 it was a dare. 14 that said Marco Rodriguez and Gene Pedraza were observed talking 15 about, whispering about, conspiring about anything; and that, in 16 fact, you were going to hear just the opposite, that they're not 17 two guys that would ever even be friendly, much less commit a 18 crime together. 19 That's 4 and 6. You're not going to hear a word from any witness And you heard, as J.R. Flores told you and some of the 20 witnesses, that Marco Rodriguez was not some rookie. 21 Rodriguez was one of the better agents in that office, was a 22 veteran special agent at that office. 23 admitted, Mr. Pedraza is way too nervous to go up to a veteran 24 law enforcement officer and say: 25 crime together. Marco And just like J.R. Flores Hey, let's me and you commit a And particularly not a veteran agent like Marco Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 86 of 1121199 1 Rodriguez, that they don't even get along. 2 doesn't even like him. 3 inspection time that Marco Rodriguez was one of them talking 4 about: 5 those counts, there's no way. 6 Marco Rodriguez You heard testimony around the I don't like him. I hope he's gone. So if you look at All that leaves you is Mr. Cooney tried to convince you and 7 they tried to do it yesterday morning. They put a few MOAs up 8 going, well, there's a wrong date here. There's a wrong date 9 here. Well, they showed a bunch of stuff that had truly 10 occurred. 11 y'all have seen lots of the paperwork, including the Della Saenz 12 paperwork that she admitted she signed herself that had wrong 13 dates. 14 Agent Handbook on writing the wrong date is not a crime. 15 The only thing that was wrong were the dates. A wrong date is not a crime. Well, A violation of the Special All they're left trying to convince you with 4 and 6 is that 16 because there's a wrong date, Marco Rodriguez and Gene Pedraza, 17 these two guys that wouldn't even go to lunch together would 18 have conspired and aided and abetted each other to commit a 19 crime? 20 proof beyond a reasonable doubt. 21 That's ludicrous. That's well below the standard of So after you got through 12 and 13 and find not guilty, 22 you're going to have to look at 4 and 6 and come to the same 23 thing. 24 starts crumbling in this indictment. 25 If you start doing that, this whole house of cards Because next we get to Edwin Castillo. And he told y'all he Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 87 of 1121200 1 was mistaken. 2 guilty of that one when Edwin Castillo told y'all, "I'm 3 mistaken. 4 I don't see how you can still find Mr. Pedraza I am mistaken." So then we move to the Della and J.R. situations that I've 5 already gone over. When you really look at that with Della, it 6 was simply, "There's a gap." 7 "Okay. 8 "Okay." 9 That's all you know. 10 11 12 I'll write a memo to fill in the gap." That's not a crime. That's not an attempt to commit a crime. The J.R. Flores, the same thing. It was a question, "Aren't there some surveillances to be written up?" 13 "Well, Gene, go ask the guy who had that case before me." 14 "Okay." 15 That's not proof beyond a reasonable doubt. He leaves. That's a couple 16 of sentences that aren't directives or orders or anything the 17 government has been characterizing them as. 18 when you look at them closely. 19 So those crumble Now it gets to the -- down to Roland Gomez and Robert 20 Vargas, the two guys with immunity that, unlike Edwin Castillo, 21 those two guys were not about to say anything for fear that 22 immunity would be taken away from them. 23 them tell you? 24 that after testifying in this case and getting Gene Pedraza, 25 that they're going to have a ticker tape parade and be welcomed And what did both of Both of them told you it is their distinct hope Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 88 of 1121201 1 2 back into their jobs. All this has been about those two guys making their own 3 mistakes and trying to save themself by placing blame on Gene 4 Pedraza. 5 they did something wrong, they think they want their law 6 enforcement jobs back? 7 to have help getting that job back. 8 going -- is going to jump in and help them get that job back? 9 They're hoping they get rewarded, from their minds, rewarded for 10 11 And both of those guys, after they admit, they say Well, they're hoping that they're going Who do you think they're their testimony in this courtroom of getting Gene Pedraza. When you look at them and you go back and you see what Judge 12 Hanen told you as to how you should consider that list of 13 questions I read you already about did the person impress you 14 honest, that whole long series. 15 And then you go to page 4 where it talks about immunized 16 witnesses where it says, "You, the jury, must decide whether the 17 witness' testimony has been affected by these circumstances," 18 meaning the immunity, "by prejudice against the defendant or by 19 the benefits that the witness has received as a result of being 20 immunized." 21 22 23 It's on page 3 of the charge. I think it's clear in the record they're prejudiced against this defendant. That's part of this overall plan to get him. I think it's also clear that are they affected by the 24 benefits? They've been sitting at home being paid hundreds of 25 thousands of your taxpayer dollars jut waiting to come testify. Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 89 of 1121202 1 That's their job, to testify against Gene Pedraza. 2 pretty much said that when he came in. 3 Vargas And are they being affected by the benefits that they're 4 receiving? 5 juror as you 12 are could see it as anything but that. 6 judge tells you you should never convict a defendant upon the 7 unsupported testimony of these witnesses unless you believe it 8 beyond a reasonable doubt. 9 somebody that has been bought and paid for in that manner beyond 10 I don't see how a reasonable person, a reasonable And the I don't see how you can believe a reasonable doubt. 11 Because if you take away with Robert Vargas what he just 12 tells you he and Gene Pedraza talked about in the conference 13 room that nobody else witnessed, that there's not a tape 14 recording, that he says Gene is telling him to change things. 15 And then the Gomez thing I've already gone over where it's the 16 brief hallway conversation. 17 things away from there, Gene Pedraza has no knowledge of the 18 MOAs that Robert Vargas claims to -- that Gene Pedraza knew he 19 was changing. 20 Gene Pedraza had, that the people that drove her to the river 21 were Marco Rodriguez and were Della Saenz and not Roland Gomez. 22 Because if you take those two Takes away the knowledge that Roland Gomez says So that's what their testimony was about. It's about 23 continuing this set of -- this story, this lie to get Gene 24 Pedraza. 25 trying to get him in prison with this immunized testimony and No doubt it shifted from getting him fired to now Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 90 of 1121203 1 this continued telling of stories to get at him. 2 Roland Gomez and Robert Vargas, from everything you saw and 3 observed of their demeanor and their answers and the words 4 coming out of their mouth and what they hope to get in this 5 immunity, they are wholly unbelievable, and I don't know that 6 you could base anything on them. 7 So then when it comes down, that if you eliminate those -- 8 and, of course, this Wayne Ball situation. 9 about that? What do you know When you look at who signed the Vargas MOAs, Edwin 10 Castillo signed a couple of them. 11 why I signed them." 12 can't call that evidence, can you? 13 And again, Tells you, "I have no idea Has no idea how they got them to him. You This thing, that Wayne Ball again, that's coming just from 14 Vargas telling you Wayne Ball somehow has knowledge of 15 something. 16 about Wayne Ball was he's a veteran cop, a veteran agent, 17 somebody that everybody relied on. 18 much like Marco Rodriguez, the evidence in this case, this 19 record for you all is Wayne Ball is not the kind of person that 20 would have been participating in such a conspiracy either. 21 Much like Marco Rodriguez, the things you heard And I'm telling you that So when you look at all of that as I went through, 12 and 13 22 crumble; 4 and 6, the Marco Rodriguez counts crumble; 10, the 23 Castillo crumbles; 11 crumbles. 24 of that brings down the conspiracy count. 25 even if you think that two other people were committing a That's Roland Gomez. And all Because remember, Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 91 of 1121204 1 conspiracy, if Gene Pedraza is not in that conspiracy, Gene 2 Pedraza is innocent. 3 says, "If you find it's a different conspiracy that occurred," 4 meaning even if you, for example, believe Vargas and Wayne Ball 5 went off and did something on their own, that's two people 6 conspiring to do something. 7 knowledge of that, even if you find two other people were 8 committing a criminal conspiracy, he's innocent, and you have to 9 find him innocent. 10 It's in your charge on conspiracy where it But if Gene Pedraza has no You know, I'm sure y'all have had the circumstance of having 11 a close family member, you know, go into surgery, some serious 12 event with doctors and nurses. 13 in the waiting room and you're placing the life of your loved 14 one in their hands. And when you do that, you're out And -- 15 MR. KIDD: Objection, Your Honor. 16 THE COURT: 17 MR. EASTEPP: Overruled. And at this moment, that's kind of what 18 y'all are to Gene Pedraza. 19 going to have, you 12, to give him a fair trial and a fair 20 consideration of all this evidence in this case. 21 that when you're back there, you use the same care and concern 22 that you would want doctors and nurses to use when they're 23 operating on your loved one in the most serious of events, 24 because this is his whole life that's on the line. 25 Y'all are the only people he's ever And I hope I ask that when you go back there, you consider these things Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 92 of 1121205 1 that I've gone over. 2 the manner that I've gone over it with you this morning or this 3 afternoon, there's no other verdict you can reach other than not 4 guilty and give him his life back. 5 6 7 8 9 THE COURT: It's very logical if you go through it in Thank you. Thank you, Mr. Eastepp. Mr. Kidd, are you going to finish? MR. KIDD: I am, Your Honor. A moment ago Mr. Eastepp brought up something that's very important. Logic. What defense counsel is asking you to 10 believe is illogical. 11 office of agents conspired, admitted violating federal law, 12 perjured themselves before the grand jury, perjured -- perjured 13 themselves here before you, all to remove Defendant from being 14 the head of an office. 15 He's asking you to believe that an entire If you don't like your neighbor, you play loud music. You 16 let your dog go to the bathroom on their lawn. 17 do is go to the FBI and tell them that you and the neighbor 18 committed a bank robbery in the hopes that they are put in jail 19 and by some means, they're going to let you go. 20 21 22 What you don't That is exactly what defense counsel is asking you to buy today, and I'm going to walk through it briefly. He's asking you to believe that Robert Vargas was so angry 23 at Defendant that he was going to -- came up with a plan. He 24 was going to admit that he had violated federal law in the hopes 25 that the defendant would be moved from his job. He was so angry Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 93 of 1121206 1 that he came up with this plan, and he didn't tell the 2 inspectors. 3 If his plan was to get Defendant removed from his office, 4 wouldn't it have made sense to go to the inspector and say: 5 Hey, I falsified documents. 6 he was confronted. 7 He didn't tell anybody that he's confronted with. He didn't do that. He waited until And in this big story that he's going to make up, in this 8 big plan, he decides not to say that the defendant asked him to 9 specifically falsify, lie. If he was going to make up a story, 10 wouldn't it make sense that he would make up a little bit better 11 of a story and at least insert the words falsify, lie? 12 But that's not what he did. He waited until he was 13 confronted, he said what happened, and he continued to say what 14 happened throughout the course of time prior to receiving a 15 non-prosecution agreement. 16 requires him to do nothing more than tell the truth. 17 truth. 18 A non-prosecution agreement which Tell the Not, as Mr. Eastepp says, tell a story. Mr. Castillo, again, as part of a big plan, is going to 19 bring down the defendant. They're going to bring him to his 20 knees and get him out of the office. 21 think the defendant may have asked me to do something wrong. 22 You should look into this." 23 gates with and then he stands by that story? 24 a non-prosecution agreement, that's his story. 25 when he got on the stand before you, that he thought defendant What's his story? "I That's the shot he comes out of the Prior to receiving It was his story Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 94 of 1121207 1 2 had asked him to do something strange. Agent Della Saenz. To bring down the defendant, get him 3 kicked out of the office, what does she tell the inspectors? 4 Nothing. 5 that she falsify MOAs. 6 later. She doesn't even inform them about Defendant's request She doesn't tell anybody until much 7 Same thing with J.R. Flores. 8 Agent Gomez, he doesn't tell anybody until February of 2011. 9 And why does he come forward? Doesn't tell the inspectors. Because he reviews a report that 10 he had drafted a year prior and realizes what had been done. 11 Turns it over. 12 So this grand scheme of all these agents coming together to 13 get Defendant removed from office trickled out over the course 14 of a year included Agent Gomez, a year in advance of admitting 15 what he had done, falsifying an MOA, placing it away in a file; 16 Agent Vargas, with no reason to fill a gap of inactivity because 17 he wasn't employed at DHS for much of the time, wasn't assigned 18 a case for much of the other, and was in training, falsified 19 MOAs, placed them in the file, and just waited until he was 20 confronted. 21 And the Agent Gomez or Agent Castillo was going to create 22 this story but not really say the defendant ever asked him to 23 falsify anything. 24 not going to tell anybody until much later. 25 scheme. And the Agent Saenz and Agent Flores, they're This is their big lie. This is the grand Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 95 of 1121208 1 Five agents didn't walk into the inspector and say: 2 what was done. 3 documents. 4 He needs to go. He asked us to falsify That is not what happened. That would be logical. What defense counsel is suggesting is illogical. 5 make sense. 6 put before you during the course of this trial. 7 This is It doesn't It doesn't comport with the evidence that has been The evidence that has been put before -- that has been put 8 before you this week is that Defendant repeatedly asked his 9 agents to falsify documents, and he did so because of these 10 reviews. 11 inspectors were coming and they were going to realize and figure 12 out that what Defendant's employers thought they knew about him 13 was wrong. 14 of his job. 15 doing his job. 16 were going to come to the inspection and realize that what they 17 thought all along was wrong. 18 week. 19 He wanted good reviews. He realized that the They thought he was complying with the obligations That's what these reviews say. They thought he was And what Defendant was afraid of, because they That's what you've heard here this There are a few other things I want to address. Defense 20 counsel talked about the inspection report, about how it passed 21 with glowing reviews. 22 case review sheets were complete. 23 contest that. 24 25 And if you go in here, it says that the The government doesn't Says it. Do you know why it says that? Because the defendant systematically filled out case review sheets and had them placed Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 96 of 1121209 1 in the files prior to the inspection. Therefore, when the 2 inspectors came through in their three day review of everything 3 in the office to check the boxes, they checked the boxes. 4 And just so you get a sense of how comprehensive this 5 inspection report was, it was important that they noted that the 6 case files were created using the appropriate six part folder. 7 This is just checking boxes. 8 investigation. 9 inspection report. This is not a criminal This is an inspection report, an internal The allegations of falsifications, the 10 allegations of criminal conduct were turned over to the 11 appropriate authorities, the Federal Bureau of Investigation. 12 I want to go to the video for a minute and the destruction 13 of the case review sheets. 14 government's contention is that it took place on January 25th, 15 2012. 16 case review sheets. 17 saying that all case review sheets were destroyed on that day, 18 just that that is the start of the process, and they were 19 destroyed sometime between January 25th and February 9th. 20 point did the government put up the video and say: 21 everything. 22 how the process moved along. 23 Defense counsel said that the That that was the day that the defendant destroyed the That is incorrect. That's not what we said. The government is not At no This is It's the start. You see Special agents were interviewed, indicating there was a 24 federal investigation. Defendant sends an email requesting 25 files that had been reviewed during inspection. There's a video Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 97 of 1121210 1 of some of the files being taken out. 2 second video where 12 files were removed in under three minutes. 3 It's just a three minute video. 4 removed between the 25th and the 9th. 5 A two minute and 38 It's a process. They were I want to go back to the non-prosecution agreements for a 6 moment because I think this is important. Defense counsel said 7 that there -- the testimony of Agent Vargas, Agent Castillo and 8 Agent Gomez was bought and paid for; that this was their great 9 moment that they got a non-prosecution agreement. Again, they 10 had admitted criminal liability and had gone months with the 11 possibility -- or not knowing what was going on prior to getting 12 the non-prosecution agreement. 13 were required to do was tell the truth. 14 incentive in the world to do that because they know when they 15 stop telling the truth, when they lie, they can be prosecuted. 16 They have an incentive to be honest and truthful with regards to 17 what they have told the Court. 18 Roland Gomez. But when they got it, what they And they have all the Defense counsel said that Agent Gomez, 19 there's no other evidence other than him just changing the -- 20 changing the Joe Blow, inserting his own name; that we have 21 nothing else besides his own just kind of what he said. 22 invite you, when you go back to the jury room, to look at the 23 emails again. 24 sent. 25 what to do. I In fact, look at all of the emails Defendant Defendant is making changes. He is telling the agents Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 98 of 1121211 1 With respect to Agent Gomez, there is no confusion. 2 Defendant wasn't -- wasn't unclear who had transported the 3 source. 4 in the email or in the MOA that Agent Gomez provided to 5 defendant. 6 wanted to be put in the report, false information. 7 Defendant knew who had transported the source. He crossed the names out. Defendant and Marco Rodriguez. It was He inserted what he Defense counsel's argument 8 is that they could not have conspired to commit a crime because 9 they weren't friends. What you did not hear during the 10 instructions to the jury was that an element of a crime is to be 11 friends. 12 meeting of the mind; and in this case, they created falsified 13 documents. 14 the fact that at the point Robert Vargas did what Defendant 15 asked him to do and created the false MOAs, they were no longer 16 friends because that relationship had ended a few days before 17 after the defendant threatened Agent Vargas with his employment 18 about his probationary period or his review, I apologize, and 19 held his probationary period over his head. 20 It's not required. All that matters is there's a They don't need to be friends. It's evidenced by Ladies and gentlemen, at the start of this trial, we told 21 you we would show you three things: That the defendant lied, 22 the defendant caused others to lie, and that the defendant 23 destroyed evidence. 24 government's obligation to prove its case beyond a reasonable 25 doubt. The government has done that. It is the We embrace that obligation, and we have met that Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 99 of 1121212 1 2 obligation. We're going to ask you to go back to the jury room, 3 deliberate, and return with the one verdict that the facts 4 support, and that's a verdict of guilty on all counts. 5 you. 6 7 THE COURT: All right. Thank Thank you, Mr. Kidd. Ladies and gentlemen, you have now heard all the evidence, 8 you've heard my instructions, and you heard the closing 9 argument. But you haven't had lunch. And so what I'm going to 10 do, it's 12:55 now. I'm going to ask you to be back in an hour. 11 So I'm going to let you go to lunch, come back and begin your 12 deliberations then. So I'm going to excuse y'all now. 13 (Jury leaves courtroom) 14 (Two alternate jurors remain in courtroom.) 15 16 THE COURT: Y'all can be seated. Ladies, you've been our alternates. 17 figured it out or not. 18 go, "Hum, we have more than 12." 19 Here's the deal. I don't know if you A lot of people start counting and they I'm going to let y'all go, and you can get 20 your stuff, and you don't have to come back. But I'm not 21 releasing you from my instructions or from your oath. 22 to ask you to give Cristi the best phone number we can get for 23 you, whether it's your cell phone, your home phone, your work 24 phone, wherever you're going to head for today and tomorrow. 25 Because if something were to happen, something untoward, like I'm going 1213 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 100 of 112 1 one of the jurors had an accident on the way back from lunch or 2 whatever, I'm going to reach out and grab you and bring you 3 back. 4 instructions, and you must be available near a phone. 5 So that's why I'm -- you must continue to follow my Now -- 6 MR. COONEY: 7 THE COURT: 8 MR. COONEY: 9 Yes. Thank you. (At the bench) MR. KIDD: 10 11 Your Honor, may we approach briefly? I think you've got No. 7 up here as opposed to 13 and 14. THE COURT: 12 The way they're sitted -- seated, excuse me, 13 is one, two, three, four, five, six, and then seven, eight, 14 nine, 10. MR. COONEY: 15 16 17 18 Honor. MR. KIDD: THE COURT: 20 JUROR: 21 THE COURT: 22 JUROR: 23 THE COURT: 25 Just wanted to make sure. (Open court) 19 24 I am so sorry for interrupting you, Your So I am sure, you're Ms. Wood? Yes. And you're Mrs. Lopez? Yes. I just wanted to make sure we had the right two jurors. I've never had to have -- I've never had to reach out and 1214 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 101 of 112 1 call an alternate back; so in all likelihood, what's going to 2 happen is the jury will deliberate, they'll come back with a 3 verdict, and then Cristi will call you and say: 4 you're released and let you know what happened. 5 Okay. Now But so give Cristi the best phone number for the next, say, 6 24 hours where we can get you and then y'all can go and not come 7 back. 8 JUROR: Thank you. 9 JUROR: Yes, sir. 10 11 THE COURT: all your stuff. 12 JUROR: 13 THE COURT: 14 15 Just leave your badges on the table and take Thank you. Thank y'all. (Alternates excused.) THE COURT: All right. Counsel, I'm going to let y'all 16 break for lunch. I'd like you to be back here, say, about five 17 until 2:00. 18 that are supposed to go back are in the stack, and all the ones 19 not supposed to go back aren't in the stack, and then we'll have 20 the instructions with the correction that we made midstream in 21 there ready to go back as well. Make sure the exhibits are just -- all the exhibits 22 Okay. 23 (Recess taken from 1:00 to 2:07.) 24 25 With that, we'll see y'all in an hour. THE COURT: All right. Be seated. Cristi reminded me that I hadn't ruled on -- at 1215 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 102 of 112 1 least out loud on the record that I had denied the motion to 2 dismiss concerning Count 12. 3 fact that I left it in the charge, I'm overruling the defense's 4 motion on that. 5 All right. 6 put on the record? 7 And so if it wasn't clear from the Do we have some evidentiary things we need to MR. COONEY: I think the government needs to move to 8 withdraw Government's Exhibit 23 and 24. 9 portions of the tape that we never actually utilized. 10 THE COURT: 11 MR. EASTEPP: 12 THE COURT: 13 MR. EASTEPP: Those are the other Any objection to that? No, sir. They're withdrawn. And Pedraza's No. 2 we all agreed to be 14 admitted, and your clerk tells me that might not have been 15 formally put on the record. 16 MR. COONEY: No objection. 17 THE COURT: It's admitted. 18 19 20 It's a single email. I think I gave it my usual "Okay." okey dokey. That was the official It's in the record. All right. Anything else? I'm going to bring the jury in, 21 just count heads to make sure we have all 12, and then they can 22 begin their deliberations. 23 24 25 (Jury enters courtroom) THE COURT: Ladies and gentlemen, be seated. Really just brought you in here to make sure and count heads 1216 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 103 of 112 1 to make sure we have all 12 of you here. 2 to excuse you to return to the jury room. 3 both the exhibits and the copies of the charge and y'all can 4 begin your deliberations. 5 6 7 8 9 10 11 We do. I'm now going Cristi will bring in Thank you for being back so promptly. (Jury leaves courtroom) THE COURT: Okay. All right. Y'all can be seated. Counsel, get with Cristi one more time on the exhibits so she takes back just the right things. Mr. Cooney, where are y'all going to be? MR. COONEY: Ms. Sustaeta has our contact information, but we'll be in the U.S. Attorney's office. 12 THE COURT: All right. 13 MR. EASTEPP: And Mr. Eastepp? We'll be right here. We are going to go 14 ahead and move our boxes and everything right now to the car to 15 get that done. 16 THE COURT: I've never had a note come back about how we 17 elect a foreman, so we're probably good for 30 minutes anyway. 18 Just be where Cristi can find you. 19 20 21 Thank you. (Recess taken from 2:11 to 4:44.) THE COURT: All right. Be seated. Let me first say that we have a jury note. And not to make 22 light of it, because I know this is serious situation, but I've 23 never had this situation come. 24 25 We have eight jury notes. MR. EASTEPP: Eight? 1217 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 104 of 112 1 THE COURT: Eight. All saying that they've reached a 2 verdict and timed differently. So I think what they did is we 3 have eight counts. 4 verdict form and then went on to the next one, so... I think they decided a count and signed the 5 If y'all want to look at it, here it is. 6 It's never -- I've never seen it happen. 7 Cristi's theory is because she sent in ten blank note 8 9 10 papers, that they felt obligated to fill them out. MR. EASTEPP: THE COURT: The only logical conclusion. Needless to say, I cannot read the 11 handwriting of the foreperson either, so I cannot tell you who 12 is the foreperson. 13 have a Ruiz on the jury, so we'll find out together. 14 It looks like it might be Ruiz, but we don't I would prefer to just read the answers to the counts. 15 anyone object to that? 16 ask them if they have a verdict. 17 that's what this is before I ask any answers whatsoever. 18 Does When I ask -- what I'm going to do is I'm going to make sure that But after I do that, assuming they've decided everything, 19 normally I have them hand it to the marshal, hand it to me, and 20 I read -- and I would just read the answers, unless y'all feel 21 like I need to read the entire question and the answer. 22 23 MR. EASTEPP: Meaning you would just say, "Count 1," and go through, not guilty? 24 THE COURT: 25 MR. KIDD: Yeah. That's fine. 1218 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 105 of 112 THE COURT: 1 Okay. All right. And then let me say this 2 before we know the verdict. 3 sides. 4 this trial. 5 been clean, if you will. 6 ought to be but not always are. 7 sides that y'all have handled this appropriately. 8 9 Just -- and I mean this for both I really appreciate how professionally y'all have done I mean, you know, it's been hard fought, but it's All right. in the jury. And so I think that's the way trials So I appreciate it from both What I'm going to ask the marshal to do is bring I'm going to ask the foreperson if this means 10 they've decided all the counts, because I don't want to 11 prematurely invade the deliberation. 12 yes, then I'm going to ask for the verdict form. 13 (Jury enters courtroom) THE COURT: 14 15 And assuming the answer is All right. All right. Be seated, please. I have to confess that I cannot read the jury 16 foreperson's handwriting. But that's all right, because if I 17 wrote you a note, you couldn't read it either. 18 time I have a jury note, I print it. 19 Which one of you -- raise your hand. 20 (Hand raised.) 21 THE COURT: All right. 22 right. 23 foreman, I might add. 24 25 That's why every Who's the foreman? Juror No. 7. No, that's all You don't get extra duty or extra pay for being the Have you reached -- has the jury reached a unanimous verdict on all counts? 1219 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 106 of 112 1 JUROR: 2 THE COURT: 3 4 5 Yes, we did. All right. marshal, please? Counsel, is there anything we need to do before I announce the verdict? 6 MR. KIDD: 7 MR. EASTEPP: 8 THE COURT: 9 Would you hand it to the No, Your Honor. No, Your Honor. All right. The jury found the defendant on Count 1, guilty; on Count 2, guilty; on Count 4, guilty; on 10 Count 6, guilty; on Count 10, guilty; on Count 11, guilty; on 11 Count 12, not guilty; and on Count 13, not guilty. 12 13 All right. Counsel, is there anything we need to do with the jury before I let them retire back to the jury room? 14 MR. EASTEPP: 15 THE COURT: Have the jury polled, Your Honor. All right. Each side, defendant or 16 government, has a right for me to ask each juror if this verdict 17 that I just read represents your verdict, so I'm just going to 18 go right down the line calling you basically by juror number 19 starting here with No. 1. 20 JUROR: 21 THE COURT: 22 JUROR: 23 THE COURT: 24 JUROR: 25 THE COURT: Is this your verdict? Yes. Is this your verdict? Yes. Is this your verdict? Yes, Your Honor. Does this represent your verdict? 1220 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 107 of 112 1 JUROR: Yes. 2 THE COURT: 3 JUROR: 4 THE COURT: 5 JUROR: Yes. 6 JUROR: Yes. 7 JUROR: Yes. 8 JUROR: Yes. 9 JUROR: Yes, sir. 10 JUROR: Yes. 11 JUROR: Yes, sir. 12 THE COURT: Your verdict? Yes. Your verdict? All right. The Court will accept that as 13 the unanimous verdict on all eight counts of -- as the jury 14 verdict. 15 Anything else, counsel, before we allow the jury to retire? MR. KIDD: 16 17 Nothing further from the government, Your Honor. 18 MR. EASTEPP: 19 THE COURT: 20 21 22 23 Nothing from the defendant, Your Honor. All right. Ladies and gentlemen, y'all can retire back to the jury room. (Jury leaves courtroom) THE COURT: All right. Gentlemen, be seated. As is my custom, I'm going to go visit with the jury and 24 thank them. I'm going to ask everyone to remain in the 25 courtroom until after I come back and dismiss you because I want 1221 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 108 of 112 1 to allow the jury to not be confronted by anyone. 2 assuming there would be. 3 you to remain here. 4 there, and he will prevent you from leaving. 5 and visit with y'all after I visit with the jury. 6 9 But I'd ask That mean Marshal Gavito is standing back So I'll come back (Recess taken from 4:48 to 5:03.) THE COURT: 7 8 I do this in every case. Not that I'm All right. All right. Be seated. Mr. Eastepp, if you and Mr. Pedraza would step up to the podium. 10 (Defendant sworn.) 11 THE COURT: All right. Mr. Pedraza, the jury has found 12 you guilty on six of the eight counts that you were charged 13 with. 14 will be an investigation by the probation office. 15 that investigation, they're going to want to interview you. 16 when they do that, you want to be sure and have Mr. Eastepp 17 present. And that having been done, the next step in this process As part of And Do you understand that? 18 THE DEFENDANT: 19 THE COURT: Yes, sir. All right. Investigation and preparation of 20 presentence investigation report will be completed by 21 April 28th. 22 Mr. Eastepp get a copy of it. 23 kind of additions, corrections, modifications, any objections, 24 and let's have those on file in writing by May 12th. 25 are no objections, I'd like a statement to that effect signed by Government gets a copy of that. You and Go over it together, make any If there 1222 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 109 of 112 1 you and Mr. Eastepp, filed by that same May 12th deadline. 2 Final report will be due to the court on May 27th, and the case 3 is set for sentencing on June 16th at 8:30. 4 5 6 All right. Mr. Eastepp, I assume you would like Mr. Pedraza to remain free on bond. MR. EASTEPP: I would. And I discussed that with the 7 government prior to the verdict coming in earlier today, and I 8 think they're not opposed. 9 themselves. 10 MR. KIDD: They obviously can speak for That's correct, Your Honor. 11 as previously set. 12 THE COURT: 13 PRETRIAL OFFICER: 14 THE COURT: Same conditions Steve, is he in compliance? Yes, Your Honor, he is. Mr. Pedraza, I'm going to allow you to 15 remain free on the same terms and conditions that you've been 16 free under with two caveats. 17 Obviously do not break any laws while you're out because I will 18 put you in jail if you get a DWI or anything like that. 19 One, and one -- you know this. And then secondly, you need to stay in touch with 20 Mr. Eastepp because these deadlines will be coming up, and he 21 can't be traipsing around South Texas looking for you. 22 need to keep in touch, all right? 23 THE DEFENDANT: 24 THE COURT: 25 Yes, sir. All right. we can take up today? So y'all Counsel, is there anything else 1223 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 110 of 112 1 MR. KIDD: Nothing from the government, Your Honor. 2 MR. EASTEPP: Judge, I don't know if procedurally I need 3 to do this or not, but I'm going to do it. 4 29 motion at this point. THE COURT: 5 All right. I'm renewing my Rule And I'll deny it. Obviously one 6 of the aspects of the Rule 29 were the last two counts, and the 7 jury has found you not guilty on that, and obviously that 8 probably moots that issue. All right. 9 10 Anything -- gentlemen, anything else we can take up? 11 MR. EASTEPP: 12 THE COURT: 13 Y'all are free to go, and we're off the record. 14 MR. KIDD: 15 MR. COONEY: 16 17 18 19 20 21 22 23 24 25 No, sir. Thank you, Your Honor. Thank you, Your Honor. (Court adjourned at 5:06.) * * * (End of requested transcript) 1224 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 111 of 112 1 2 -oOoI certify that the foregoing is a correct transcript from 3 the record of proceedings in the above matter. 4 Date: May 23, 2014 5 6 /s/________________________ Signature of Court Reporter Barbara Barnard 7 8 9 I N D E X 10 JURY TRIAL 11 MARCH 14, 2014 PAGE 12 Charge conference 1115 13 Charge of the Court 1121 14 Government's initial closing argument 1146 15 Defendant's closing argument 1171 16 Government's final closing argument 1205 17 Alternate jurors excused 1214 18 Jury deliberates 1216 19 Jury notes 1216 20 Jury verdict 1218 21 Jury polled 1219 22 Post trial scheduling 1221 23 24 25 1225 Case 1:13-cr-00305 Document 151 Filed in TXSD on 05/23/14 Page 112 of 112 1 GOVERNMENT'S EXHIBITS 2 NO. 3 23 24 DESCRIPTION OFFRD ADMTD W/DRAW 1215 1215 4 5 DEFENDANT'S EXHIBITS 6 NO. 7 2 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 DESCRIPTION OFFRD ADMTD 1215 W/DRAW