Esquivel trial testimony

Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 1 of 105 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS DEL RIO DIVISION UNITED STATES OF AMERICA VS. RAQUEL ESQUIVEL ) ) ) ) ) ) ) DR-07-CR-1065 DEL RIO, TEXAS APRIL 27 and 28, 2009 ____________________________________________________________ TRIAL TESTIMONY OF DIEGO ESQUIVEL BEFORE THE HONORABLE ALIA MOSES LUDLUM UNITED STATES DISTRICT JUDGE ____________________________________________________________ Proceedings reported by stenotype, transcript produced by computer-aided transcription. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 2 of 105 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A P P E A R A N C E S FOR THE UNITED STATES OF AMERICA: UNITED STATES ATTORNEY'S OFFICE RICK BENNETT Assistant U.S. Attorney Third Floor, U.S. Courthouse 111 East Broadway Suite 300 Del Rio, Texas 78840 FOR THE DEFENDANT: GREGORY D. TORRES ATTORNEY AT LAW 457 Jefferson Eagle Pass, Texas 78852 OFFICIAL COURT REPORTER: ANNA RENKEN LAFRENZ, CSR, RPR United States District Court Western District of Texas 111 E. Broadway Suite 214 Del Rio, Texas 78840 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 3 of 105 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 I N D E X PAGE GOVERNMENT WITNESS DIEGO ESQUIVEL Direct Examination by Mr. Bennett Voir Dire Examination by Mr. Torres Direct Examination by Mr. Bennett (continued) Cross Examination by Mr. Torres Redirect Examination by Mr. Bennett Recross Examination by Mr. Torres Further Direct Examination by Mr. Bennett Further Cross Examination by Mr. Torres 4 19 23 61 90 101 103 103 E X H I B I T S GOVERNMENT EXHIBIT 1 2 3 4 5 6 7 8 IDENTIFIED 18 25 27 31 31 43 43 49 ADMITTED 22 28 44 (Demonstrative) 44 (Demonstrative) 99 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 4 of 105 4 1 2 3 4 03:23 (APRIL 27, 2009, OPEN COURT.) THE COURT: Mr. Bennett, you may call your first witness. MR. BENNETT: The Government called Diego Esquivel. (OATH ADMINISTERED.) THE WITNESS: Yes, I do. THE COURT: Mr. Esquivel, sit as close as you can to the microphones. You will need to speak into that microphone so that everyone can hear. Also allow the attorneys to complete their questions before answering them. The court reporter can't take you both down if you are both speaking, so do not try to anticipate. Mr. Bennett, you may proceed. MR. BENNETT: Thank you, Your Honor. DIRECT EXAMINATION Q. 5 6 7 8 9 03:23 10 11 12 13 14 03:23 15 16 17 18 19 03:23 20 (BY MR. BENNETT) Sir, would you please state your name and spell your last name for the record. A. Q. A. Q. Diego Esquivel, E-s-q-u-i-v-e-l. You were arrested in this case, correct? Yes. Are you the same Diego Esquivel charged in the indictment 21 22 23 24 03:23 25 as with the defendant? A. Q. A. Correct. Why were you arrested? Transporting marijuana. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 5 of 105 5 1 2 3 4 03:24 Q. A. Q. A. Q. Do you know the defendant here, Ms. Raquel Esquivel? Yes, I do. Do you recognize her in the courtroom? Yes, I do. Will you identify her by an article of clothing she's 5 6 7 8 9 wearing and where she is seated. A. Q. A. Black jacket. She's sitting on the left (indicating). Your left? My left. MR. BENNETT: Your Honor, let the record reflect the 03:24 10 11 12 13 14 03:24 15 witness has identified the defendant. THE COURT: So noted. Q. (BY MR. BENNETT) Are you related to Ms. Esquivel in any way? A. Q. A. Q. A. Q. A. Q. A. Q. A. No, I'm not. Did you plead guilty in this case? Yes, I did. And what charges did you plead guilty to? Intent to distribute and conspiring. Conspiring to do what? Move over 1,000 kilograms. Of what? Marijuana. Have you ever previously been convicted of a felony? No, I haven't. 16 17 18 19 03:24 20 21 22 23 24 03:24 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 6 of 105 6 1 2 3 4 03:25 Q. A. Q. Why are you here today testifying? I want to get my sentence reduced. Has anyone promised that you're going to get your sentence reduced? A. Q. 5 6 7 8 9 No. Have you been promised anything in exchange for your testimony? A. Q. No. What is your understanding of who determines your 03:25 10 sentence? A. Q. A. Q. A. Q. A. 11 12 13 14 03:25 15 Ludlum has the last word. I'm sorry? Ms. Alia Ludlum has the last word. And she's the judge who -She's the one that determines it. I'm sorry. Repeat that. Ms. Alia Ludlum has the last word. She is the one that 16 17 18 19 03:25 20 determines my sentencing. Q. A. She is the presiding judge? Yes. MR. TORRES: Objection, leading, Your Honor. THE COURT: Overruled. 21 22 23 24 03:25 25 Q. A. Q. (BY MR. BENNETT) Has the Government promised you anything? No. Prior to today have you met with myself and agents? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 7 of 105 7 1 2 3 4 03:26 A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. Yes, I have. And what did we do? We went over my case and Kelly's case. Did anyone tell you what to say? No. Mr. Esquivel, where were you born? Ciudad Acuna, Coahuila. And where did you grow up? Del Rio, Texas. Where did you go to high school? Del Rio High School. Did you at some point become involved in smuggling 5 6 7 8 9 03:26 10 11 12 13 14 03:26 15 marijuana? A. Q. A. Q. A. Yes, I did. And when was that? 2002. Why did you get involved? I saw a lot of people, a lot of my close friends, a lot of 16 17 18 19 03:26 20 nice cars, you know, carrying around a lot of money; and an opportunity was offered and I took it. I wanted to have the same thing they had. Q. A. Q. A. 21 22 23 24 03:27 25 Do you know the co-defendant Ramon Patuel in this case? Yes, I do. And how do you know him? He was a close friend of mine. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 8 of 105 8 1 2 3 4 03:27 Q. And did he at some time get involved in smuggling marijuana as well? A. Q. A. Q. A. Q. A. Q. A. Q. A. Yes, he did. And when did that occur? In 2006. Did you guys ever work together? Yes, we did. How often did you work together? Once a week. Who were you smuggling marijuana for? Rogelio Flores and Bebe Medrano and Don Chuy. And who are these people? They are drug traffickers in Mexico. MR. TORRES: Your Honor, I apologize. May I 5 6 7 8 9 03:27 10 11 12 13 14 03:27 15 approach? THE COURT: You may. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. TORRES: Your Honor, I want to make sure we already invoked the Rule. I thought I had previously. THE COURT: You had. MR. TORRES: I saw a bunch of people in court with suits on. THE COURT: Yes. But I don't think there are any witnesses. MR. TORRES: Very good, Your Honor. 16 17 18 19 03:28 20 21 22 23 24 03:28 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 9 of 105 9 1 2 3 4 03:28 THE COURT: Yes, a bunch of people watching. (BENCH CONFERENCE CONCLUDED.) Q. (BY MR. BENNETT) Mr. Esquivel, would you describe to the jury how this, how a drug trafficking or this drug trafficking organization is set up. A. 5 6 7 8 9 I would go to Mexico, and I was given orders in Mexico of what was I supposed to do, how to pick up the marijuana off of Lake Amistad. MR. TORRES: Your Honor, object to hearsay. And also I believe the question asks for a narrative. THE COURT: Overruled on the narrative. Mr. Bennett, on the hearsay? Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. 03:29 10 11 12 13 14 03:29 15 (BY MR. BENNETT) Who is at the top of this organization? Rogelio Flores and Don Chuy. And who works for them? I do. Do they have any other workers? Yes, they do. Describe briefly how that is set up. They've got burreros. I'll sorry. Say that again. Burreros, those are the guys -Would you spell that for the court reporter, if you know? B-u-r-r-e-r-o-s. And who are those people? 16 17 18 19 03:29 20 21 22 23 24 03:29 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 10 of 105 10 1 2 3 4 03:30 A. Those are the people who cross the marijuana over on their backs pretty enough. Q. A. Q. And who else is involved? Ramon Patuel was involved. What other types of people did these leaders of the 5 6 7 8 9 trafficking organization have working for them? A. The guys who go pick up the marijuana on this side of the river or the lake. Q. And who would work with those people who were picking up 03:30 10 the marijuana? A. Q. A. Q. 11 12 13 14 03:30 15 I would. Did you pay any of those people? Yes, I did. What kind of information do you rely on when people are picking up marijuana? A. 16 17 18 19 03:30 20 We would have to figure out who is watching the water as far as Border Patrol, park rangers. Q. A. Q. And how would you get that information? We would get on the water ourselves. So what was your role for this organization in the United 21 22 23 24 03:31 25 States? A. Q. A. Q. I would look for drivers. Did you get paid for this? Yes, I would. What would these drivers do? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 11 of 105 11 1 2 3 4 03:31 A. They would go pick up the marijuana off of the lake or they would drive it up to Fort Worth, Dallas or Lubbock. Q. A. Q. A. Q. How much were you paid to do this? Depending on the quantity. Okay. Give us an example. Say for 500 pounds maybe 30 grand. And how many people would you hire at any time for any 5 6 7 8 9 load? A. Q. About three or four. And besides drivers, what other roles did people play in 03:31 10 11 12 13 14 03:32 15 these three to four people? A. Q. The place where we would stash the marijuana. Do you rely on those people or did you rely on these people to successfully smuggle marijuana? A. Q. Yes, I did. When you began smuggling marijuana what was your common 16 17 18 19 03:32 20 method? A. Making sure everything was already on the lake. That way we could bring the marijuana across, have my drivers pick it up, bring it back to the stash house, prepare it, load it up and get it ready for the next day to be sent off to Fort Worth or Lubbock or Dallas. Q. A. Q. 21 22 23 24 03:32 25 Where on the lake would you typically pick up? Off of 454 and across from Governor's Landing. And across from what? I'm sorry? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 12 of 105 12 1 2 3 4 03:32 A. Q. Governor's Landing. And the whole time you were smuggling marijuana did you have a partner? A. Q. A. Q. A. Q. Yes, I did. And who was that? Ramon Patuel. Who would bring the marijuana over on the lake? The burreros. And typically how much marijuana would be involved in each 5 6 7 8 9 03:33 10 load? A. Q. A. Q. 11 12 13 14 03:33 15 Five hundred pounds. Is that an estimate or is that for certain? Around 400 to 500 pounds. And that marijuana would be brought into the United States? A. Q. A. Q. A. Q. A. Q. 16 17 18 19 03:33 20 Yes, it would. In which areas? Vega Verde, 454, and across from Governor's Landing. What city is that? Del Rio, Texas. Were you smuggling marijuana in 2006? Yes, I was. So from 2006 until the date you were arrested how much 21 22 23 24 03:33 25 marijuana, if you can give us a roundabout answer, did you move? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 13 of 105 13 1 2 3 4 03:34 A. Q. A. Q. Four to five tons. Did the amount of marijuana vary with different loads? Yes, it did. Let's turn to earlier summer of 2006. Were you smuggling 5 6 7 8 9 marijuana then? A. Q. A. Q. A. Yes, I was. Do you know the name Tim Rodriguez? Yes, I do. And how do you know him? I met him out while I was drinking. He's a good friend of 03:34 10 11 12 13 14 03:34 15 mine, one of my friends. Q. A. And what did you guys do? Had Tim go pick up the marijuana off of Lake Amistad and bring it over to a stash house, and that was his role. Q. A. Q. And how many times did you work with Mr. Rodriguez? Maybe on five or six occasions. And were each of those times the same thing you just 16 17 18 19 03:35 20 stated, that he would go pick up the marijuana? A. Q. The same thing. And approximately how many, how much marijuana were in 21 22 23 24 03:35 25 these loads? A. Q. A. 400 to 500 pounds. Were you picking up the marijuana at the same place? We would pick it up at 454 and across from Governor's Landing. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 14 of 105 14 1 2 3 4 03:35 Q. During the same time period do you know the name Travis Stahl? A. Q. A. Q. A. Yes, I do. How do you know that name? He's Tim's friend. He also worked for me. And what did he do for you? He would pick up the marijuana off of Lake Amistad and 5 6 7 8 9 drive it over to the stash house. Q. Were you working with him and Mr. Rodriguez and Tim or 03:35 10 separate? A. Q. A. 11 12 13 14 03:36 15 Both of them at the same time. When the marijuana arrived at the lake what happened? Tim and Travis would have the bed of the truck open and help the burreros unload the marijuana and load it up to the truck while we were watching the waters on our boat. And they would leave, they would call us while they were on the highway, take it over to the stash house, and we'd meet them up there and pay them for what they did. Q. A. Q. A. Q. 16 17 18 19 03:36 20 When you said "we" who are you referring to? Me and Ramon Patuel. How was the marijuana packaged when you received it? With brown tape. Were they all just laying in the boat or were they 21 22 23 24 03:36 25 packaged in a different way as well? A. They were in black duffle bags. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 15 of 105 15 1 2 3 4 03:36 Q. When the marijuana was taken out of the -- put into the car where would the car go first? A. Q. A. Q. A. Q. To the stash house. And did you use a particular stash house? Yes. Whose? Ramon Patuel's house. Were Mr. Rodriguez and Mr. Stahl paid for their 5 6 7 8 9 assistance? A. Q. A. Q. A. Q. A. Q. A. 03:37 10 Yes, they were. How much? $1,000 to $2000. Were you involved in smuggling marijuana in October 2006? Yes, I was. Do you know the name Johnny Tellez? Yes, I do. How do you know him? He worked with Ramon Patuel at Ram Country and he wanted 11 12 13 14 03:37 15 16 17 18 19 03:37 20 to work with us, so -Q. A. Q. Doing what? Driving marijuana up to Fort Worth. During this time he was driving marijuana was he ever 21 22 23 24 03:37 25 arrested? A. Q. Yes, he was. And are you familiar with that incident? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 16 of 105 16 1 2 3 4 03:37 A. Q. A. Yes, I am. How are you familiar with that? We sent him off to go to Fort Worth with I think anywhere from 100 to 150 pounds of marijuana and he got stopped at the checkpoint. MR. TORRES: Objection, Your Honor, hearsay. THE COURT: Mr. Bennett. MR. BENNETT: Your Honor, this is background information on a historical conspiracy. It's not used to prove the matter. THE COURT: Okay. Overruled. Q. 5 6 7 8 9 03:38 10 11 12 13 14 03:38 15 (BY MR. BENNETT) Do you know what method he was using or to smuggle the marijuana? A. He was sticking it in the trunk. He had a box, some speakers in there, and we would put it in the box. It would fit up to 150 pounds of marijuana. Q. 16 17 18 19 03:38 20 Was the marijuana he was moving was that part of one of your loads? A. Q. A. Q. A. Q. Yes, it was. And how much was in the original load, if you recall? Five hundred pounds. Did you pay him for his role? Yes, I did. Were you involved in smuggling marijuana in November of 21 22 23 24 03:39 25 2006? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 17 of 105 17 1 2 3 4 03:39 A. Q. A. Q. A. Q. A. Yes, I was. At that time were you still working with Tim Rodriguez? Yes, I was. Did you work with him in November of 2006? Yes, I did. Do you recall when? We had him do the same thing as he always did; but this 5 6 7 8 9 time we had him take it over to his ranch, because we couldn't store it at Ramon Patuel's house, and a black duffle bag was found. Q. 03:39 10 11 12 13 14 03:40 15 Do you know why you couldn't store it at Mr. Patuel's house? A. Q. A. Q. A. Q. A. Q. A. Q. A. I think we had other marijuana there. How much was in that load? 300 to 400 pounds. Did anything unusual happen with this particular instance? One of the bags was found. What happened to that bag, if you know? It was seized by the Sheriff's Department, I think. Were you worried about that? Yes, I was. Why? Because I had to report it to the people in Mexico. And 16 17 18 19 03:40 20 21 22 23 24 03:40 25 if it wasn't complete, if the load wasn't complete, I had to either pay it up or take the guy to Mexico. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 18 of 105 18 1 2 3 4 03:41 Q. A. Q. Do you remember where the lost bag was? I don't remember. Where was the marijuana being stored when the bag was lost? A. 5 6 7 8 9 At the ranch. MR. BENNETT: May I approach the witness, Your Honor? THE COURT: You may. Q. (BY MR. BENNETT) Sir, I'm showing you what has been marked for identification as Government's Exhibit Number 1. Do you know what that is? A. Q. A. Q. A. Q. A. 03:41 10 11 12 13 14 03:41 15 Yes, I do. What is that a picture of? A black duffle bag. Are you familiar with that black duffle bag? Yes, I am. How? It's one of the duffle bags we used to put the marijuana 16 17 18 19 03:41 20 in. Q. And does that picture fairly and accurately represent what the duffle bag looked like at the time you put it there? A. Q. A. 21 22 23 24 03:41 25 Yes, it does. To you knowledge has that picture been altered in any way? No. MR. BENNETT: Your Honor, at this time the Government moves to admit Government's Exhibit Number 1 and publish it to Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 19 of 105 19 1 2 3 4 03:41 the jury. MR. TORRES: Your Honor, I'd ask to be allowed to take this witness on voir dire in reference to that photograph. THE COURT: You may. MR. TORRES: Thank you. Your Honor, may I approach to get a copy? THE COURT: You may. VOIR DIRE EXAMINATION Q. 5 6 7 8 9 (BY MR. TORRES) Mr. Esquivel, where exactly was that 03:42 10 photograph taken? A. Q. 11 12 13 14 03:42 15 Tim Rodriguez' Ranch on Alderete Lane. Okay. So do you know exactly where this photograph was taken? A. Q. No. Okay. So you cannot tell the ladies and gentlemen of the 16 17 18 19 03:42 20 jury that that's in fact a photograph of a particular area. Correct? A. Q. A. Q. No. You have no personal knowledge, correct? No. Okay. Were you shown this photograph prior to your 21 22 23 24 03:42 25 testimony today? A. Q. Yes, I was. And someone else represented to you or told you that's what was in it, correct? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 20 of 105 20 1 2 3 4 03:42 A. Correct. MR. TORRES: Okay. May I approach to return the photograph to him? THE COURT: You may. MR. TORRES: Your Honor, we would object to referencing this photograph. This witness has no personal knowledge which is necessary to lay the foundation for it. THE COURT: The foundation is whether this picture fairly and accurately represents that bag. That's what needs to be done. Does that picture represent the bag in the condition that you had it, Mr. Esquivel? THE WITNESS: Yes, it does, Your Honor. THE COURT: It doesn't matter who takes the picture when and where, Mr. Torres, does it? MR. TORRES: I agree with that, Your Honor. If I may inquire additionally that can maybe shed some light? THE COURT: You may. MR. TORRES: Thank you, Your Honor. Q. 5 6 7 8 9 03:42 10 11 12 13 14 03:43 15 16 17 18 19 03:43 20 (MR. TORRES) Mr. Esquivel, those are the bags used by all 21 22 23 24 03:43 25 the dopers, correct? A. Q. Correct. Okay. You don't know if that bag was one of your bags, because everybody uses the same bag. Right? MR. BENNETT: Objection, Your Honor. That's been Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 21 of 105 21 1 2 3 4 03:43 asked and answered. He has identified it. THE COURT: Let me have you both approach. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) THE COURT: Where are we going? What is the deal? MR. TORRES: Your Honor, the problem with the witness is he has shown and he's basically been wood shedded in reference to a bunch of photographs. THE COURT: Don't all witnesses get wood shedded? It's malpractice not to. MR. TORRES: Your Honor, there is no way he knows for a fact that that is one of his bags. Those are the bags that all the dopers buy and use. He cannot testify -MR. BENNETT: I object. We presented the picture informing him what it is. THE COURT: If he can testify that this is the bag that he used on that occasion, that's sufficient. The rest goes to credibility. It doesn't go to admissibility. It goes to how much weight the jurors are going to give that photograph. Isn't that true? MR. TORRES: It is, Your Honor. We just ask a little leeway in reference to that since the bag is -THE COURT: Why don't you cross him as to that. You have already made your point. Can he say whether or not this is a fair and accurate representation of the bag involved in his case? If he can say "yes," that's all that I need to hear. 5 6 7 8 9 03:43 10 11 12 13 14 03:44 15 16 17 18 19 03:44 20 21 22 23 24 03:44 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 22 of 105 22 1 2 3 4 03:44 Hasn't he said that? MR. BENNETT: Yes. I asked that question. MR. TORRES: He has, Your Honor. Your Honor, I would ask at least the Court abate its ruling as to its admissibility until I cross. THE COURT: How? That goes to the weight -MR. TORRES: Very good, Your Honor. THE COURT: -- to be given, not the admissibility. MR. TORRES: Very good, Your Honor. (BENCH CONFERENCE CONCLUDED.) THE COURT: Admitted. MR. BENNETT: May I approach the witness, Your Honor? THE COURT: You may. MR. BENNETT: May I publish it to the jury, Your Honor? THE COURT: You may. DIRECT EXAMINATION (CONTINUED) Q. 5 6 7 8 9 03:44 10 11 12 13 14 03:45 15 16 17 18 19 03:45 20 (BY MR. BENNETT) Mr. Esquivel, I'm showing the jury what has be marked as Government's Exhibit Number 1. Is that the bag you just testified was part of that load? A. Q. A. Q. A. 21 22 23 24 03:46 25 Yes. Were you involved in smuggling marijuana in January 2007? Yes, I was. Do you know the name Tony Ortiz? I do. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 23 of 105 23 1 2 3 4 03:46 Q. A. How do you know that name? I used to play soccer with him; and he saw that I was making good money, and he asked me if he can work with me, so... Q. A. 5 6 7 8 9 And what did you all do? He would find drivers for us and at times he would pick up too off of Lake Amistad and also drive up to Forth Worth or Dallas or Lubbock. Q. A. Q. A. Do you know the name Eloy Arredondo? I do. And how do you know that name? He was one of the guys who Tony got to pick up one of our 03:46 10 11 12 13 14 03:46 15 loads. Q. A. Q. A. Q. A. Q. A. I'm sorry. Did you say Tony? Tony. Is that Mr. Ortiz? Yes, sir. And do you recall an incident where he was arrested? I do. What happened? I wasn't always there on all the occasions; but I knew 16 17 18 19 03:47 20 21 22 23 24 03:47 25 what was going on. I was informed what was going. MR. TORRES: Objection, hearsay, Your Honor. MR. BENNETT: Co-conspirator statement, Your Honor. THE COURT: Mr. Torres? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 24 of 105 24 1 2 3 4 03:47 MR. BENNETT: I'm sorry, Your Honor? THE COURT: I'm asking Mr. Torres. MR. BENNETT: Okay. MR. TORRES: Your Honor, if the Court is making a finding that the conspiracy in fact existed at this point. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) THE COURT: Mr. Torres, are you going to object to everything like that? I'm not making a finding yet. A co-conspirator statement made during and in furtherance of it, I'm going to allow it in. MR. TORRES: If the Court is going to allow it in, there is no sense objecting to it. THE COURT: You are going to have to preserve your record somewhere along the line. Are we going to be like a Jack-In-The-Box and saying I haven't found conspiracy? Because I'm not going to find that until the end of the Government's case. MR. TORRES: Your Honor, I'll make an objection here. THE COURT: And then what I'll do is have Mr. Bennett say co-conspirator statement and then I identify that those are the statements. MR. TORRES: Very good, Your Honor. (BENCH CONFERENCE CONCLUDED.) THE COURT: Proceed. Q. 5 6 7 8 9 03:47 10 11 12 13 14 03:48 15 16 17 18 19 03:48 20 21 22 23 24 03:48 25 (BY MR. BENNETT) What did you know about that incident? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 25 of 105 25 1 2 3 4 03:48 A. Ramon Patuel called me and he told me that they were going to pick up a load. I was in San Antonio at the time; but everything that was done had to be informed to me because we were partners. So they went on and they picked up the load. As they were picking it up they got stopped by Border Patrol or park rangers -- I'm not sure what it was -- and confiscated 500, 600 pounds. MR. BENNETT: May I approach the witness, Your Honor? THE COURT: You may. Q. 5 6 7 8 9 03:49 10 (BY MR. BENNETT) Sir, I'm showing you what has been 11 12 13 14 03:49 15 marked for identification as Exhibit No. 2. What is that? A. Q. A. Q. That's the truck they were caught in. Are you familiar with that picture? I wasn't there. So you don't know what is in that? You don't know what 16 17 18 19 03:49 20 that -- how do you know that's a picture of truck they were caught in? A. Q. Because that's the truck they would drive around. So if you weren't there, you can't say whether or not that was the way the truck looked at the time of the arrest? A. 21 22 23 24 03:50 25 No. MR. BENNETT: Okay. May I approach, Your Honor? THE COURT: You may. Q. (BY MR. BENNETT) Were you smuggling marijuana in February 2007? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 26 of 105 26 1 2 3 4 03:50 A. Q. A. Q. A. Q. A. Q. A. Yes, I was. And were you continuing to work with Mr. Patuel? Yes. Were you continuing to work with Mr. Ortiz? Yes. So did you work with Mr. Ortiz in February? Yes, I did. What did you do? We loaded him up. We used the same method that we would 5 6 7 8 9 03:50 10 use with Johnny Tellez with the speaker box. We loaded him up with I think it was 100 pounds, and he was stopped at the Border patrol checkpoint on his way to Fort Worth. Q. A. Q. A. Q. 11 12 13 14 03:51 15 Was that part of one of your loads from the lake? Yes, it was. How much was in the original load, if you remember? 400 to 500 pounds. Are you familiar with the method that Mr. Ortiz packaged 16 17 18 19 03:51 20 the marijuana? A. Q. A. Q. A. Yes. Did you see him package the marijuana? Yes. Did you see him put it in his car? Yes. MR. BENNETT: May I approach, Your Honor? THE COURT: You may. 21 22 23 24 03:51 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 27 of 105 27 1 2 3 4 03:51 Q. (BY MR. BENNETT) Mr. Esquivel, what is that a picture of (indicating)? A. Q. A. Q. A. Marijuana in the speaker box. Are you familiar with that photograph, what it depicts? Yes. How are you familiar with that? Those are the speakers we bought for him and that's the 5 6 7 8 9 box we had made for him. Q. And does that picture fairly and accurately represent how 03:52 10 the car appeared on the day he was -- the day the marijuana was in there and he was arrested? A. 11 12 13 14 03:52 15 I wasn't there when they seized it; but that's the box and that's the car. MR. TORRES: Objection, nonresponsive. THE COURT: Overruled. Q. A. 16 17 18 19 03:52 20 (BY MR. BENNETT) I'm sorry. Could you repeat that? I wasn't there when they seized the marijuana; but that's the car and that's the box. Q. And is that the box? Does it look like that -- does it fairly and accurately show what the box looked like at the time you put it into the car? A. Q. 21 22 23 24 03:52 25 Yes. Does it fairly and accurately represent the marijuana that is contained in that speaker box? A. Yes. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 28 of 105 28 1 2 3 4 03:52 Q. And to your knowledge has that picture been altered in any way? A. No. MR. BENNETT: Your Honor, at this time the Government 5 6 7 8 9 moves to admit Government's Exhibit Number 3. MR. TORRES: Your Honor, I would object. I didn't hear the proper predicate in reference to when the picture was taken. THE COURT: That isn't one of the predicate. MR. TORRES: Well, as far as a fair and accurate depiction of when it was taken. THE COURT: No. The foundation is is it a fair and accurate representation. When it was taken is not part of that foundation. MR. TORRES: Very good, Your Honor. THE COURT: You can ask him about it in cross examination if you want. MR. TORRES: Thank you, Your Honor. THE COURT: Overruled. Admitted. MR. BENNETT: Your Honor, may I approach and publish? THE COURT: You may. Q. 03:53 10 11 12 13 14 03:53 15 16 17 18 19 03:53 20 21 22 23 24 03:53 25 (BY MR. BENNETT) Please tell the jury again what Government's Exhibit Number 3 is. A. That's the speaker box that we put in Tony's car, Mr. Ortiz' car in order to hide the marijuana. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 29 of 105 29 1 2 3 4 03:54 Q. A. Q. Were you smuggling marijuana in March 2007? Yes, I was. Do you know the name of -- do you know names Franky Lumbreras, Alex Retana, Noe Lopez or Orlando Polomos? A. Q. A. Q. A. 5 6 7 8 9 I do. How do you know those names? They were the guys that were working for us too. And what happened with them? We had one of our close friends Carlos Trevino go and look 03:54 10 for some people, because we needed to pick up a load off of Lake Amistad; and he found Franky Lumbreras, Alex Retana and Orlando Polomos. And we were on the water checking to see if there was any Border Patrol or park rangers; and they delivered the load, the burreros delivered the load to them, they got on the highway and they got stopped. Q. 11 12 13 14 03:55 15 16 17 18 19 03:55 20 Do you know how much marijuana was involved in that instance? A. Q. 400 to 500 pounds. In that same month does the same Cesar Resendez mean anything to you? A. Q. A. 21 22 23 24 03:55 25 Yes. What does it mean? He was the guy who would drive up marijuana to Fort Worth in a trailer truck used for construction work. He got caught. Q. Explain that instance for the jury, please. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 30 of 105 30 1 2 3 4 03:56 A. I received a phone call from the people in Mexico, our bosses; and they asked us to go pick up a truck that we were going to use to start working with. This was a construction truck, a dually type trailer. It was a big truck. And we brought it over. We had our people go pick up the marijuana on Lake Amistad, from 500 to 600 pounds. We started cutting some plywood in the middle and stacking it, placing 600 pounds in the middle, and then stacking it with uncut plywood on the top, and we would have Cesar Resendez drive it up to Fort Worth. Q. A. Q. A. 5 6 7 8 9 03:56 10 Was he ever stopped? Yes, he was. What happened with that? On the second time we had him work he got stopped on the 11 12 13 14 03:56 15 checkpoint going out to Fort Worth. Q. A. Q. A. Q. Do you recall what checkpoint that is? The check point going out to Uvalde. Did you pay him for his role? Yes, we did. Are you familiar with the method that he was using to 16 17 18 19 03:57 20 smuggle the marijuana? A. Q. A. 21 22 23 24 03:57 25 Yes. Did you personally partake in that? I did. MR. BENNETT: Your Honor, may I approach the witness? THE COURT: You may. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 31 of 105 31 1 2 3 4 03:57 Q. (BY MR. BENNETT) Sir, I'm showing you what has been marked as Government's Exhibits 4 and 5. What are those? A. Q. A. Q. That's the truck and that's the marijuana. And how do you know that? Because we put it together, me and Ramon Patuel. Do those pictures fairly and accurately represent the 5 6 7 8 9 truck as it appeared when you all put the marijuana in there? A. Q. A. No. What is the difference? We had it stacked. The other plywood, we had it stacked 03:58 10 11 12 13 14 03:58 15 on top. Q. A. And what do those pictures represent? That the marijuana was seized. MR. BENNETT: May I approach, Your Honor? THE COURT: You may. 16 17 18 19 03:58 20 Q. (BY MR. BENNETT) Are Government's 4 and 5, is that the truck that you all used? A. Q. A. Q. A. Q. A. Q. Yes. Is that the plywood that you all used? Yes. In July 2007 were you smuggling marijuana? Yes, I was. Do you know the name Albert Parks? Yes. How? 21 22 23 24 03:59 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 32 of 105 32 1 2 3 4 03:59 A. Q. A. He's one of my friends. And what did you all do? We worked together to cross marijuana over into the United States through his property in Vega Verde. Q. A. Q. A. 5 6 7 8 9 Was he ever arrested? Yes, he was. What do you know about that instance? We had 500 pounds, 300 to 500 pounds stashed at one of our stash houses; and I received a phone call from the people in Mexico saying that they had gotten a driver coming from somewhere in West Texas. I'm not sure where he was from. He was at the Motel 6, and I needed to go get someone to go pick up this truck, go load up the marijuana and drop off the truck at Motel 6 again; but I was at work, so I wasn't able to do that. So I called Albert Parks and he went and did that. While he was pulling out of the stash house he got caught. He got stopped by the Del Rio Police Department, I think. Q. 03:59 10 11 12 13 14 03:59 15 16 17 18 19 04:00 20 Now how about September 2007, were you smuggling marijuana? A. Q. A. Q. A. Q. Yes. Do you know the name Jeffrey Turner? Yes. How do you know that name? He worked for me. What did he do for you? 21 22 23 24 04:00 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 33 of 105 33 1 2 3 4 04:00 A. He would pick up marijuana at Lake Amistad and drive it up to Fort Worth. Q. A. Q. A. Q. A. Q. And how much marijuana would he transport? From 100 to 200 pounds. Was he ever arrested? Yes. Where was he arrested? Pulling out from Box Canyon. Now during this whole timeframe we're talking about did 5 6 7 8 9 04:00 10 you come into contact with the Defendant Raquel Esquivel? A. Q. 11 12 13 14 04:01 15 No. When was the first time you came into contact with Ms. Esquivel? A. Q. A. Q. Two months before she left to the Border Patrol academy. What year was that? 2007. Now did you know her prior to coming into contact with her 16 17 18 19 04:01 20 in 2007? A. Q. A. Q. A. Q. A. Yes. How did you know her? We dated in 2001. What name do you know her by? Kelly Esquivel. Now where did you meet her? I'm sorry. Did you say 2001? Yes. 21 22 23 24 04:01 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 34 of 105 34 1 2 3 4 04:02 Q. A. Q. A. Q. A. Q. A. Q. Where did you meet her in 2001? High school. Did you know her during high school? Yes. Did you keep in touch with her after high school? No. So was 2007 the next time you came into contact with her? Yes. Describe that to the jury. How did you come into contact 5 6 7 8 9 04:02 10 with her? A. 11 12 13 14 04:02 15 I was shopping at HEB and I bumped into her. I asked how she was doing, what she was doing at the time. She told me she was working at the bank. And I asked her out to dinner. I asked her if she wanted to hang out with me, and she said yes. Q. A. Q. A. So did you guys hang out? Yes, we did. What was the nature of your relationship? We were friends. We would go to Mexico, hang out at other 16 17 18 19 04:03 20 friends' houses. We went to the circus. We just did a few things. Q. A. Q. 21 22 23 24 04:03 25 Were you dating? Not at the time. And at that time when you had first run into her were you still smuggling marijuana? A. Yes, I was. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 35 of 105 35 1 2 3 4 04:03 Q. At this time did you inform her that you were smuggling marijuana? A. Q. A. Q. A. Yes, I did. Did you tell her that Mr. Patuel was helping you? No. How would you tell her that you were smuggling marijuana? I was always known for doing I guess public corruption 5 6 7 8 9 always having to deal with marijuana. And she asked me what I was up to. I told her I was working on base; but I also had another job, and that was smuggling marijuana into the United States. Q. A. Q. A. Q. A. Q. 04:03 10 11 12 13 14 04:04 15 And how did she react to that? She just said to be careful. Was this prior to her going to the Border Patrol academy? Yes. How did you become aware of her future plans? She told me. After she told you that did you continue talking about 16 17 18 19 04:04 20 your marijuana business? A. Q. No. I left it alone. What did you think about her entering the Border Patrol 21 22 23 24 04:04 25 academy? A. I thought that was good for her. At the moment I thought it was good for me too. Q. Did you feel strange telling her that you were smuggling Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 36 of 105 36 1 2 3 4 04:04 marijuana? A. Q. A. No. Why not? Well, She was a good friend. I felt she wouldn't say 5 6 7 8 9 anything. Q. A. Q. A. Q. Did she ever tell you not to do it? No. Did she ever threaten to turn you in? No. Did you continue your relationship after she entered into 04:04 10 11 12 13 14 04:05 15 the Border Patrol academy? A. Q. A. Q. A. Q. We would talk once in a while; but -What -- I'm sorry. Go ahead. We would talk once in a while. What about when she got out of the academy? We started talking again and we started dating. So you started dating her after she left the Border Patrol 16 17 18 19 04:05 20 academy? A. Q. Yes. So to your knowledge at this time was she a Border Patrol 21 22 23 24 04:05 25 agent? A. Q. Yes. What did you guys -- did you -- at this time did you continue talking about your marijuana smuggling business? A. I told her. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 37 of 105 37 1 2 3 4 04:05 Q. A. What did you tell her? I told her I was still smuggling. I told her I was still working on base; but I told her I had new plans. I told her that I wanted to start smuggling marijuana myself instead of hiring drivers. Q. A. Q. A. Q. A. Q. 5 6 7 8 9 How did she react to that? I guess she got a little worried. Did she tell you to stop? No. Again, did she threaten to turn you in? No. Did you ever talk to Mr. Patuel about her being a Border 04:06 10 11 12 13 14 04:06 15 Patrol agent? A. Q. Yes. What did you two discuss? MR. TORRES: Objection, leading, as to what 16 17 18 19 04:06 20 Mr. Patuel would say, Your Honor. THE COURT: Overruled. The question is "What did he say?" Go ahead. THE WITNESS: He became very interested in her too. We had plans of smuggling marijuana through the Pecos River; and she was stationed in that area, so we thought maybe we could do something. MR. TORRES: Objection, Your Honor. There is no way he would know what Mr. Patuel was thinking. 21 22 23 24 04:06 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 38 of 105 38 1 2 3 4 04:06 THE COURT: Do you know or are you assuming what he was thinking? THE WITNESS: Patuel? THE COURT: Uh-huh (yes). THE WITNESS: We talked about it. THE COURT: Okay. Q. A. 5 6 7 8 9 (BY MR. BENNETT) Continue. And what we thought, you know. And we talked about, you know, maybe we could use her to help us out in our smuggling ventures, you know, off of the Pecos River. She was working that area. Q. 04:07 10 11 12 13 14 04:07 15 How long had or do you recall how long she had been with Border Patrol at the time you informed her again that you were smuggling marijuana? A. Q. A. Q. A. Q. Maybe a month or a month and a half. I'm not sure. And at the time you were dating? Yes. How did you view her? I liked her. She was a good friend. We were intimate. Concerning your marijuana smuggling venture, what did you 16 17 18 19 04:07 20 21 22 23 24 04:08 25 see her as? A. Q. I saw her as my girlfriend. Did she ever provide you information that you used to smuggle marijuana? A. She did. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 39 of 105 39 1 2 3 4 04:08 Q. A. Q. How many times? Three times. Was that to you, or was that to you and Ramon, or who was that to? A. Q. A. 5 6 7 8 9 Both of us. How would you discuss this information? After I had told her that I was going to start driving the marijuana myself I asked her what I could do to avoid being caught. She provided information. On our first time that we drove up she gave me information on what highway to take and what not to take. Q. 04:08 10 11 12 13 14 04:09 15 And this was -- was this directly -- was this information directed toward your marijuana smuggling? A. Q. Yes. Tell the jury about what you mean she told you what 16 17 18 19 04:09 20 highway to take. A. She told me not to take highway or road FM 1024 and to take 163. Q. A. Why? Because there were sensors on the road on 1024 and there 21 22 23 24 04:09 25 was hardly anyone patrolling the area on the other highway. Q. A. Q. A. Did you know what a sensor was? Not at the time. How did you find out? Raquel told me. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 40 of 105 40 1 2 3 4 04:09 Q. A. What did he she tell you? That the sensors were activated if anyone was passing through them. She told me that there was also sensors near the watering tanks, to tell the burreros if we ever used them, not to get close to them. Q. A. Q. A. Q. 5 6 7 8 9 What happens if they got close to them? They would know that people are around that area. Who would know? Border Patrol. Did she explain to you how these sensors work? MR. TORRES: Objection, leading, Your Honor. THE COURT: "Did she explain" is not leading, 04:10 10 11 12 13 14 04:10 15 Mr. Torres. Overruled. THE WITNESS: We didn't get into detail on that. I was more interested in other things since we weren't using the burreros at the time. Q. 16 17 18 19 04:10 20 (BY MR. BENNETT) Did she provide you with any additional information? A. Q. A. She did. What? She told me there was just one sheriff around the area and 21 22 23 24 04:11 25 what time of day they would go and check the ramp, the Pecos River ramp, that Border Patrol would drive in pairs. She told me when she would be going to work. She told me that they had received information that there was smuggling being done on the Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 41 of 105 41 1 2 3 4 04:11 Pecos River ramp. Q. A. Q. A. Q. Was that information helpful to you? It was. How was it helpful to you? We were successful on two loads. You were successful on two loads because of that 5 6 7 8 9 information? A. Q. Yes. What else -- with that information that you had what did 04:11 10 you do with that information? A. 11 12 13 14 04:11 15 We told the people in Mexico what we were doing, who we had providing us information. Q. A. And what did they tell you? They were very pleased and they said to keep her happy, keep her on our side. Q. 16 17 18 19 04:12 20 When you say you provided it to Mexico who are you talking about? A. Q. A. Q. Don Chuy. And what is his role in this whole conspiracy? He's a boss. Did she, Ms. Esquivel ever give you anything else to help 21 22 23 24 04:12 25 you with your drug smuggling activities? A. Q. A. A uniform. What kind of uniform? A shirt? A Border Patrol uniform and a cap. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 42 of 105 42 1 2 3 4 04:12 Q. A. Q. A. And why did she give you that? She just felt like if it was useful for me. What did you think about that? I thought it was great, you know. I thought I could 5 6 7 8 9 impress the guys in Mexico with it. I think you can do a lot of things with it. Q. A. Like what? The cartels in Mexico right now they disguise themselves as the AFI, so -Q. A. 04:13 10 I'm sorry. Disguise themselves as what? The big cartels in Mexico they disguise themselves as the 11 12 13 14 04:13 15 AFI to go either to take loads from other drug dealers or just to stop people on the streets. I thought maybe we could do something like that with a Border Patrol uniform. We could do a lot of things. Q. A. 16 17 18 19 04:13 20 How did it come about that she gave you the shirt and hat? I was outside her house and we were just talking about it. I liked her uniform. I told her if I could have a shirt or a cap, and she gave me the shirt and the cap. MR. BENNETT: Your Honor, may I approach? THE COURT: You may. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. BENNETT: I have a replica of the same sized Border Patrol shirt and hat that I want to use for demonstrative purposes and ask that it be admitted for 21 22 23 24 04:14 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 43 of 105 43 1 2 3 4 04:14 demonstrative purposes so he can identify it. I just wanted to bring it to the Court's attention now before I pull it out before the jury sees it. THE COURT: So it's not going back to the jury? MR. BENNETT: No. THE COURT: You're just using it to demonstrate? MR. BENNETT: Yes. MR. TORRES: As long as he says "That looks like the shirt I had." As long as he doesn't say "That's exactly the shirt I had." As long as it's the same shirt everyone has, I have no problem with that. THE COURT: Okay. (BENCH CONFERENCE CONCLUDED.) MR. BENNETT: Your Honor, may I approach the witness? THE COURT: You may. Q. 5 6 7 8 9 04:14 10 11 12 13 14 04:15 15 16 17 18 19 04:15 20 (BY MR. BENNETT) Mr. Esquivel, I'm showing you what has been marked as Government's Exhibit 6 and 7. What is that? A. Q. A. Q. A. It's a Border Patrol uniform and a cap. Now does this resemble the uniform that she gave you? Yes. Does it resemble the hat that she gave you? Yes. MR. BENNETT: Your Honor, at this time the Government 21 22 23 24 04:16 25 would offer this for demonstrative purposes only, understanding that this is not the uniform or hat that she gave him, but it's Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 44 of 105 44 1 2 3 4 04:16 a replica, and would ask to publish it to the jury. MR. TORRES: Your Honor, for demonstrative purposes only. And again we'd ask with the instruction from the Court that that is not, does not belong to my client. THE COURT: I will give such instruction. You may proceed. MR. TORRES: Thank you. Q. 5 6 7 8 9 (BY MR. BENNETT) So what did you do with the -- aside from the plans you told the jury, what did you do with the shirt? A. 04:16 10 11 12 13 14 04:16 15 I threw it in the back of the car and I went over to my friend's house. We were supposed to go buy some uniforms, soccer uniforms in Mexico; and on the way to Mexico after I picked up my friend he saw it and he said "Hey, we need to go back and drop this off." So we went back to his house and we dropped off the shirt and kept the cap. Q. A. Q. A. Q. A. Q. A. Q. 16 17 18 19 04:17 20 What did you do with the cap? I gave it to Don Chuy. Did you personally give it to him? I did. Where was he? We were on the lake. On the U.S. side or the Mexico side? The Mexico side. What did he do with the hat? 21 22 23 24 04:17 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 45 of 105 45 1 2 3 4 04:17 A. Q. A. Q. A. Q. He put it on. Did he tell you anything? He got happy. Did he continue wearing the hat? He did. To your knowledge did you find out at any point that 5 6 7 8 9 anyone else besides you and Mr. Patuel attempted to get information from Ms. Esquivel? A. She told me that one time while she was working a man 04:17 10 approached her at the checkpoint. He stopped in his car and asked her if she wanted to work. I don't know who this man was. She told me the name; but I don't remember. She said that he had a really nice car and that he was known. I really didn't know who he was. Q. A. Q. 11 12 13 14 04:18 15 Did she state whether she reported him? No. Did you ever tell Ms. Esquivel that you were going to run 16 17 18 19 04:18 20 a load on a certain date? A. Q. A. Q. A. Yes. How many times? All three of the times. Let's start with the first time. How did that come about? After I told her that I was going to start smuggling 21 22 23 24 04:18 25 myself we started asking her questions about what we can do to avoid being caught, and we would usually talk to her the night Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 46 of 105 46 1 2 3 4 04:19 before. On the first time -Q. Was this -- I'm sorry. Was this in person or on the phone? How did you talk to her? A. Q. A. Q. A. In person and on the phone. Both? Yes. Okay. So tell the jury what happened. The night before we were going to do it the first time she 5 6 7 8 9 told us about what highways to take and which ones not to take, what time of the day they would check the ramp, and who was going to be checking the highways. She told us about one sheriff. Q. 04:19 10 11 12 13 14 04:19 15 And how far in advance would you tell her this or ask her for this information? A. Q. A. Q. A. The day before. Did you meet with her in person on this occasion? We did. Tell the jury about that. We met at our apartment and we just started asking her 16 17 18 19 04:20 20 questions. We would usually just eat and we'd be drinking, I guess, just hanging out asking her questions. Q. A. Q. A. 21 22 23 24 04:20 25 Do you recall when this first load was run? Around mid October. What did you do with information she gave you? We used it. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 47 of 105 47 1 2 3 4 04:20 Q. A. Q. How did you use it? We were successful in running that first load. And what about the information allowed you to be successful? A. Q. A. 5 6 7 8 9 What was that again? What about the information allowed you to be successful? We were thinking of doing the load in the afternoon; and she told us that they would be checking the ramp during the afternoon, so we did it in the morning before noon. We took the highway that she told us to take. Q. A. Q. A. Q. A. 04:21 10 11 12 13 14 04:21 15 Which highway? 163. There was nobody on that road. What highway would you have taken? We really don't know, because we were new at this. Could it have been either highway? Either highway. MR. TORRES: Objection, Your Honor. That calls for 16 17 18 19 04:21 20 speculation. THE COURT: Don't ask him to speculate. Q. (BY MR. BENNETT) After she told you, after she gave you 21 22 23 24 04:21 25 that information how did you feel? A. I was very happy, you know. I really didn't want to do it at first. I was scared; but after she told me, after she gave me the information I thought that I had a really good chance of making it. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 48 of 105 48 1 2 3 4 04:21 Q. Did you know about those, that information prior to her telling you? A. Q. No. What did you do with that information besides running the 5 6 7 8 9 load? A. Q. A. Q. A. Q. A. Q. A. Q. We passed it on to our bosses in Mexico. Who did you pass it on to? Don Chuy. How did you tell him? What methods we were going to use. And how did he react? He was very happy. To your knowledge did they use that information? They did. This load that you're speaking of, how much marijuana was 04:22 10 11 12 13 14 04:22 15 16 17 18 19 04:22 20 involved? A. Q. A. Q. A. Q. A. Q. A. Six hundred pounds. And where was that load going? Fort Worth. Did you arrive in Fort Worth? Yes, we did. Did you stay there? Yes. Do you recall where you stayed? Holiday Inn Express. 21 22 23 24 04:22 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 49 of 105 49 1 2 3 4 04:23 MR. BENNETT: May I approach the witness, Your Honor? THE COURT: You may. Q. (BY MR. BENNETT) Sir, do you recognize what has been marked as Government's Exhibit Number 8 for identification purposes? A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. 5 6 7 8 9 I do. What is that? That's what I had to sign in order to get the room. And do you know what that document is? Just -What did you sign? I guess a waiver. Who gave you that document? They needed my information in order to get the room. Who gave you that document? The guy who was at the desk. And what date did you receive that document? That same night. What night was that? Mid October. Do you recall the exact date? No. And you stated that's your signature on that document? Yes. What is the second page of that document? 04:23 10 11 12 13 14 04:23 15 16 17 18 19 04:24 20 21 22 23 24 04:24 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 50 of 105 50 1 2 3 4 04:24 A. Q. A. How much we spent. From is that the same time? Yes. MR. BENNETT: May I approach, Your Honor? THE COURT: You may. 5 6 7 8 9 Q. (BY MR. BENNETT) Did you -- after this load was successful did you speak with Ms. Esquivel again? A. Q. A. Q. A. Q. A. Q. A. Q. I did. About what? I told her that we were okay, that we had made it. Did you speak to her again about getting more information? Yes. When did that occur? The second time we ran a load. How long after the first time did it occur? Around the same time, a day in advance. I'm sorry. After the first load how long did you speak to 04:25 10 11 12 13 14 04:25 15 16 17 18 19 04:25 20 her again about running another load? A. Q. We would speak from time to time. Do you recall how much time passed before the first time 21 22 23 24 04:25 25 and the second time? A. Q. A. Q. Maybe two to three weeks. And how did you speak to her about it? The same way I did the first time. Did you meet her or did you call her on the phone? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 51 of 105 51 1 2 3 4 04:25 A. Q. A. Q. A. Q. A. Meet her and call her on the phone. And what did you ask her? I told her that I was going to do another one. Another what? I was going to run another load, and that -What did she tell you? -- maybe if she had any other information she could give 5 6 7 8 9 me. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. A. Q. And what did she tell you? She pretty much told me the same thing. The same thing as before? Yes. And what did you do with that information? I used it again. How much marijuana did you move at that time? Six hundred pounds. Where was it going? Fort Worth. Did you arrive in Fort Worth? Yes, I did. Did you pass that information along to anybody else? I did. Who? Don Chuy. And how did he react? 04:26 10 11 12 13 14 04:26 15 16 17 18 19 04:26 20 21 22 23 24 04:26 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 52 of 105 52 1 2 3 4 04:26 A. Q. A. Q. He was happy. To your knowledge did they use that information? He did. After that load did you talk to her again about running 5 6 7 8 9 another load? A. Q. A. Q. A. Q. A. I did. And do you recall when that was approximately? It was the night before too. Do you recall what time of year it was? Towards the end of November. And what did you tell her? I told her I didn't want to do it, if she could please 04:27 10 11 12 13 14 04:27 15 call Ramon to tell him that things weren't looking good. She had told us that things weren't looking good, not to work the next day; but Ramon wanted to do it either way. Q. A. Q. A. Q. A. 16 17 18 19 04:27 20 So what else did she tell you? She told me that she would call Ramon. Did she provide you with any additional information? No. Why was it not looking good? The weather was going to be bad. She said that they had 21 22 23 24 04:28 25 known about smuggling being done at the Pecos River ramp. Q. A. Q. So how did that make you feel? I didn't want to do it. Did you do it? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 53 of 105 53 1 2 3 4 04:28 A. Q. A. Q. A. Q. A. Q. A. I did. How much was involved in that load? Six hundred. Six hundred what? Six hundred pounds. Were you successful? No, we weren't. What happened? As soon as we pulled out of the ramp and hit the highway 5 6 7 8 9 04:28 10 there was a Border Patrol agent waiting for us, and he stopped us and we were caught. Q. A. Q. A. Q. A. Q. 11 12 13 14 04:28 15 At that time were you arrested? We were. Did you have your cell phones on you? We did. How many cell phones did you have? Three. Did you -- did you give consent to search those cell 16 17 18 19 04:29 20 phones? A. Q. We did. To your knowledge did the agents look through your cell 21 22 23 24 04:29 25 phones at any point? A. Q. I don't know. So by this time at the time of your arrest how much marijuana had you smuggled since early summer 2006? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 54 of 105 54 1 2 3 4 04:29 A. Q. Four to five tons. Now aside from you telling Mexico about the information did they ever talk to you about Ms. Esquivel? A. Q. A. Q. A. Q. They would. Who? Don Chuy. And what would he tell you? How much we were paying her. To your knowledge did Mr. Patuel ever meet with 5 6 7 8 9 04:30 10 Ms. Esquivel by himself? A. Q. 11 12 13 14 04:30 15 He told me that he was, that he would call her up. To your knowledge did this information that she gave you during these three instances did it help you succeed in moving marijuana? A. It did. MR. TORRES: Objection. Asked and answered, Your 16 17 18 19 04:30 20 Honor. THE COURT: Overruled. Q. (BY MR. BENNETT) Did all this information help anybody else? A. Q. A. Q. A. 21 22 23 24 04:30 25 It did. Who? Shannon Pearce. How do you know that? Ramon would tell him. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 55 of 105 55 1 2 3 4 04:30 Q. At any point did Ms. Esquivel ever threaten to turn you in? A. Q. A. Q. A. Q. A. Q. A. Q. No. Did you ever force her to give you information? No. Did you ever threaten her? No. Did you ever threaten anyone she knows? No. Did you ever keep her from leaving you? No. At the time during this time we're speaking of did you 5 6 7 8 9 04:31 10 11 12 13 14 04:31 15 ever have or did Ms. Esquivel ever tell you something about her family members? A. She called me and -MR. TORRES: Your Honor, may I approach? THE COURT: You may. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. TORRES: I think we're getting ready to go into 16 17 18 19 04:31 20 404(b) about her brother and the load he didn't get paid. That was a totally different conspiracy. I'm not sure that's where we are going or not. MR. BENNETT: Your Honor, what he's going to testify is that she asked him to call because her brother got short changed on a load of marijuana. That is intrinsic because of 21 22 23 24 04:32 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 56 of 105 56 1 2 3 4 04:32 her influence over him and the ability for her to provide information to him. THE COURT: Is that part of this conspiracy? MR. BENNETT: Well, her brother didn't know. But her asking Mr. Esquivel to call him, my opinion is that she was using her position of influence that she had with him because she was providing information. THE COURT: I don't know how it's intrinsic. If the ultimate load had nothing to do with this case, then it's not intrinsic. MR. BENNETT: It's not the fact that the load was moved or anything. It's the fact that she said "Hey, you need to call this guy to fix this." THE COURT: No. What I'll allow you to do, Mr. Bennett, is to ask if she ever asked him to use his influence in any way, yes or no. But ask it in a leading manner, because I don't want him to tick off "Yes. She asked me to call somebody else regarding her brother." Lead. MR. TORRES: That one question? THE COURT: I think the point that you are trying to make is nobody forced her and the fact she wanted them to help her is my understanding -MR. BENNETT: Right. THE COURT: -- what you're trying to do. MR. BENNETT: Wanted him to help her fix the 5 6 7 8 9 04:32 10 11 12 13 14 04:32 15 16 17 18 19 04:32 20 21 22 23 24 04:33 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 57 of 105 57 1 2 3 4 04:33 situation for her brother. THE COURT: So lead him. Say "Did she ever ask you to help the family" and then just have him answer "yes" and "no," and then go from there. MR. BENNETT: And that's it. MR. TORRES: Yes, Your Honor. (BENCH CONFERENCE CONCLUDED.) Q. 5 6 7 8 9 (BY MR. BENNETT) Mr. Esquivel, at any point did Ms. Esquivel ever ask you to help her resolve a situation with a family member? THE COURT: Just "yes" or "no." A. 04:33 10 11 12 13 14 04:33 15 Yes. MR. BENNETT: At this time I pass the witness. THE COURT: Okay. Let me ask you both for scheduling issues. Let me have you come forward for a second. MR. TORRES: Yes, ma'am. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) THE COURT: I'm thinking of stopping at this point. MR. TORRES: Please. THE COURT: Letting you cross in the morning. And then I'm going to instruct them and then we'll just pick up from there. Now how many witnesses do you all realistically think we can get through tomorrow, knowing that you're going to do cross on him and probably direct and then you're going to do recross? 16 17 18 19 04:34 20 21 22 23 24 04:34 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 58 of 105 58 1 2 3 4 04:35 And we have Mr. Patuel. MR. TORRES: This was the longest one and Patuel is going to be the second longest. I think we can get through both of those. MR. BENNETT: I feel we can. THE COURT: I just want to know. MR. BENNETT: We'll be finished with the case Wednesday morning. MR. TORRES: Yes. THE COURT: The reason I'm asking is because I want to break tomorrow about 5:00, 5:30 as well. We have all week, so I want to push it; but -MR. TORRES: Nothing crazy. THE COURT: Yes. MR. TORRES: Not that I would ever accuse Mr. Bennett of being improper; but I would ask the Court instruct him that now that the witness is testifying, that -THE COURT: I'm going to tell the witness he cannot talk to anybody including the Government. MR. TORRES: Thank you, Your Honor. And I'm not alleging Mr. Bennett would be capable of that. THE COURT: Actually I'm going to instruct the witness. MR. TORRES: Very good. Thank you, Your Honor. (BENCH CONFERENCE CONCLUDED.) 5 6 7 8 9 04:35 10 11 12 13 14 04:35 15 16 17 18 19 04:35 20 21 22 23 24 04:35 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 59 of 105 59 1 2 3 4 04:36 THE COURT: Ladies and gentlemen, I think this is a good point to stop for the day; and we will pick up again tomorrow morning at 9:30. Remember all of my instructions about not discussing this case or investigating or reading about it in any way, shape or form. I'm going to have you come back to the jury room at 9:30 in the morning. That way if the attorneys and I need to take care of any business, we can do that before you even get here. You may be excused. We will see you tomorrow. (JURY OUT.) THE COURT: Okay. Mr. Esquivel, you are now on the stand and you're now testifying. From this point forward you are not to discuss your testimony with anyone, not even the Government or any of the Government's agents. You need to not, nobody else in court -- excuse me -- nobody else at the jail cell, anywhere else, do not discuss your testimony from this point forward. And then when you return tomorrow morning you'll be ready for cross examination. You may be excused. Marshals, you may take him. THE WITNESS: Thank you. MR. TORRES: Anything further, Your Honor? THE COURT: I was about to ask you that same question. Anything further, gentlemen? MR. BENNETT: Not from the Government, Your Honor. MR. TORRES: Your Honor, there is one issue. I guess 5 6 7 8 9 04:36 10 11 12 13 14 04:37 15 16 17 18 19 04:37 20 21 22 23 24 04:37 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 60 of 105 60 1 2 3 4 04:37 we had preadmitted the four plea agreements. However, Your Honor, I only have one. I have four certified copies and I've made one copy of one. What I would request is that the Court allow me to bring those exhibits in the morning. I mean, however the Court wants to do that that is fine with the Court and the Government. The Government gave them to me. It's just that I'm going to need one to hold in my hand with the witness so we can go over them in cross examination. THE COURT: What is it you are asking? MR. TORRES: I'm asking since those technically, my four exhibits have been -THE COURT: Bring them to Ms. Green. If you need them tomorrow, you can take them back. MR. TORRES: Three of them I need to make a copy of, Your Honor. COURTROOM DEPUTY: I'll do it. MR. TORRES: Very good. I'll give those to Ms. Green. THE COURT: Anything else that you need from me now or in the morning? If you need to speak to me in the morning, let Ms. Green know by at least 9:15 so I can take the bench earlier than 9:30 if you need anything. MR. TORRES: Very good, Your Honor. May I approach Ms. Green to give her these? THE COURT: You may. All right. We are in recess. 5 6 7 8 9 04:37 10 11 12 13 14 04:38 15 16 17 18 19 04:38 20 21 22 23 24 04:38 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 61 of 105 61 1 2 3 4 09:40 You may be excused. (COURT ADJOURNED FOR THE DAY.) oOo (APRIL 28, 2009, OPEN COURT, JURY OUT.) THE COURT: DR-07-CR-1065; the United States of America vs. Defendant Number 7, Raquel Esquivel. MR. BENNETT: Rick Bennett for the United States. Your Honor, the Government is ready. MR. TORRES: Gregory Torres. The defendant and I are present and ready to proceed. THE COURT: All right. Everybody ready to have the jury be brought out? MR. BENNETT: Yes, ma'am. MR. TORRES: Yes, ma'am. THE COURT: All right. Let's bring in the jury. (JURY IN.) THE COURT: You may be seated. We are ready to proceed. You may proceed, Mr. Torres. MR. TORRES: Thank you. CROSS EXAMINATION Q. A. Q. 5 6 7 8 9 09:40 10 11 12 13 14 09:41 15 16 17 18 19 09:41 20 21 22 23 24 09:42 25 (BY MR. TORRES) Good morning, Mr. Esquivel. Good morning. Mr. Esquivel, I'd like to talk a little bit about your testimony yesterday. I believe that you had made the statement that the reason you were testifying is that you want to get Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 62 of 105 62 1 2 3 4 09:42 your sentence reduced. Do you recall that? A. Correct. MR. TORRES: Okay. May I approach the witness, Your Honor? THE COURT: You may. Q. 5 6 7 8 9 (BY MR. TORRES) Would you peak at that for a moment, please, and then we'll go through that together (indicating). That is Defendant's Exhibit Number 2 is what is says on the front, correct? A. Q. 09:42 10 Correct. Okay. And on the top left-hand side does it say "United 11 12 13 14 09:42 15 States of America vs. Diego Esquivel"? A. Q. Yes. Can you tell the ladies and gentlemen of the jury what that document that you have in your hand is? A. Q. 16 17 18 19 09:42 20 This is just stating -At the top it has a title. It's your plea agreement, correct? A. Q. A. Q. A. Q. Yes. Okay. Do you recognize it now? I recognize it. Okay. Would you look at the very back page, number 11? Okay. That has your signature along with your attorney's, 21 22 23 24 09:43 25 correct? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 63 of 105 63 1 2 3 4 09:43 A. Q. Correct. Okay. So you have adopted and accepted this as your agreement previously, correct? A. Q. Correct. Okay. And let's be clear. You have pled guilty I think 5 6 7 8 9 you testified to conspiracy to possess with intent to distribute marijuana, correct? A. Q. Correct. Do you remember what the punishment range was? MR. BENNETT: Objection, Your Honor. It calls for a 09:43 10 11 12 13 14 09:43 15 legal conclusion and it's irrelevant. MR. TORRES: Your Honor, it's in his plea agreement. It's a reason that would go to bias and credibility as to why he's testifying. THE COURT: Well, it is in the plea agreement which has already been admitted. But just remember, Mr. Torres, the sentencing province is that of the Court, not the jury. They don't decide it based on sentencing issues. MR. TORRES: Yes, ma'am. THE COURT: So be careful. MR. TORRES: Yes, ma'am. Q. 16 17 18 19 09:43 20 21 22 23 24 09:43 25 (BY MR. TORRES) In your agreement if you will look, sir, on page one, the very front, paragraph number two it sets forth what your penalty range is. Correct? A. Correct. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 64 of 105 64 1 2 3 4 09:44 Q. A. Q. A. Q. Okay. And what is that? Ten years to life. So it's a minimum of 10 years, correct, by statute? Correct. Okay. Have you had an opportunity to review a document 5 6 7 8 9 called your Presentence Investigation Report? MR. BENNETT: Objection, Your Honor. That's invading -THE COURT: Sustained. MR. BENNETT: -- the province of the jury. MR. TORRES: Very good, Your Honor. Q. 09:44 10 11 12 13 14 09:44 15 (MR. MR. TORRES) Tell me a little bit or tell the ladies and gentlemen of the jury a little bit more about what your understanding is of the sentencing reduction that you are seeking. A. 16 17 18 19 09:44 20 I made a mistake. I think everybody deserves an opportunity. You know, I did a lot of bad things while I was out there. Right now I am looking to get my sentence reduced. I want to get my sentence reduced if there is any way. No one has promised me anything. Q. 21 22 23 24 09:45 25 Let me stop you there for a moment. Has the Government promised you that they will request a reduction with no guarantee if you help them? A. Q. Yes. So you've met with Mr. Bennett on numerous occasions, Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 65 of 105 65 1 2 3 4 09:45 correct? A. Q. Yes. And Mr. Bock here on my I guess my right as well from the DEA, correct? A. Q. 5 6 7 8 9 Correct. Okay. So you have had to actually debrief or visit with them since your arrest several times to tell them what you have done and things you have seen, correct? A. Q. Correct. Okay. And during all of these debriefings or meetings you 09:45 10 11 12 13 14 09:45 15 have at least talked on one occasion about some sort of sentencing reduction that you're asking the Government to request, correct? A. Q. Correct. Okay. Now the Government has never promised you a certain 16 17 18 19 09:45 20 reduction, because Judge Ludlum is the one that decides your sentence ultimately, correct? A. Q. Correct. But you're not here testifying because all of a sudden you're a good Samaritan, correct? A. Q. A. Q. 21 22 23 24 09:45 25 Correct. You are here because you want to go home sooner, correct? Correct. You don't want to go to prison for at least 10 years, do you? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 66 of 105 66 1 2 3 4 09:46 A. Q. No, I don't. Okay. Let's talk a little bit about -- you kept talking and responding to or answering to Mr. Bennett about a list of people that you kept referring to them as your friends, "These guys were my friends and they helped me drive" and "These folks were my friends and they helped me drive." Do you remember that? A. Q. A. Q. A. Q. 5 6 7 8 9 Friends that help me drive? Well, friends that you hired to transport marijuana. Okay. Do you remember that? I do. Well, all of these people that were your friends, and you 09:46 10 11 12 13 14 09:46 15 went through many, many, many names yesterday, those were all people that knew you. Correct? A. Q. 16 17 18 19 09:46 20 Correct. And those were all people that you brought in and got them involved in the drug business, correct? Yes or no? A. Q. Yes. You set it up so they would get paid money to bring or 21 22 23 24 09:46 25 transport marijuana, correct? A. Q. Correct. And you did that because you were afraid to drive, correct? A. Correct. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 67 of 105 67 1 2 3 4 09:47 Q. So basically you were making money off the risk that they were taking, correct? A. Q. A. Q. A. Q. Correct. But those are your friends? Yes or no? These are people who asked me that they wanted to work. But you described them as friends yesterday. I can describe them as acquaintances. Well, are they acquaintances now, or are they friends like 5 6 7 8 9 you called them yesterday? A. Q. A. 09:47 10 They are acquaintances. So none of those were your friends? These are people you just hardly ever see. I mean, these 11 12 13 14 09:47 15 are people that I would drink with. You know, my friends I don't involve them in anything because they're my friends. Q. Well, weren't some of these people kids that you had grown 16 17 18 19 09:47 20 up with and went to school with here in Del Rio? A. Q. A. Q. Correct. That you've known a long, long, long time? Correct. Now all of them have been convicted for selling and 21 22 23 24 09:48 25 transporting the drugs that you got them involved in, right? A. Q. A. Q. Sir, I didn't involve them in anything. You hired them, did you not? I didn't hire them. Sir? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 68 of 105 68 1 2 3 4 09:48 A. Q. A. Q. A. Q. I didn't hire them. I didn't hire Ramon to work with me. How about the other names? I didn't hire Kelly to work with me. How about all the other people you listed yesterday? They aren't my friends. Well, these people that now you're saying they're your 5 6 7 8 9 acquaintances, you paid them. Correct? A. Q. A. Q. A. Q. I did. You got them involved in the drug trade, correct? I did. And you did that to keep yourself at a distance, correct? Correct. Basically to stay away from the center of problems, 09:48 10 11 12 13 14 09:48 15 correct, the risk? A. Q. You're always at risk. Well, then why didn't you just drive and save yourself 16 17 18 19 09:48 20 some money? Because you were afraid, right? MR. BENNETT: Object, Your Honor. It's been asked and answered. THE COURT: Overruled. You may proceed. Q. A. Q. A. Q. 21 22 23 24 09:49 25 (BY MR. TORRES) Because you were afraid, right? No. Because I was arrogant. I wanted to be the top guy. Okay? That's why. Well, I think you had testified that you started, correct Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 69 of 105 69 1 2 3 4 09:49 me if I'm wrong, in the drug trade around 2002. Was that correct yesterday? A. Q. A. Q. A. Q. Correct. Okay. Well, that was as to this conspiracy only, correct? I wasn't moving loads of marijuana back then. But you were slinging dope, right? Yes, I was. Way back when you were in junior high and high school you 5 6 7 8 9 were selling dope here in the community, right? A. Q. 09:49 10 I was. So to characterize that you first became involved in the 11 12 13 14 09:49 15 drug trade in 2002 is incorrect. Would you agree with me? A. Q. Correct. Basically in 2002 you just graduated to a bigger level. Now you're moving large quantities, correct? A. Q. 16 17 18 19 09:49 20 Correct. But back in junior high and high school you were selling to the kids here who were your friends and acquaintances here in Del Rio, correct? A. Q. Correct. Making money off their misery? MR. BENNETT: Objection, Your Honor. THE COURT: Sustained. MR. TORRES: Very good, Your Honor. 21 22 23 24 09:50 25 Q. (BY MR. TORRES) Well, what kind of drugs did you sell Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 70 of 105 70 1 2 3 4 09:50 back in junior high and high school? A. Marijuana and cocaine. THE COURT: Mr. Torres, where are we going? MR. TORRES: Your Honor, if I can approach. THE COURT: Sure. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. TORRES: Your Honor, the picture that was painted 5 6 7 8 9 yesterday was that Mr. Esquivel became involved in drugs for the first time in 2002, which in reality -THE COURT: Why are you getting into this other misconduct? It's not a crime of morale turpitude. It's not punishable by over 10 years. Unless you can show that it was punishable by over 10 years, why are we getting into that? You are going to credibility. So you have to go through 608 and 609 of the Rules of Evidence. MR. TORRES: I'll move on. THE COURT: I mean, if you can show that it meets those rules, then you can get into it. If not, move on. MR. BENNETT: I'm waiting for Mr. Torres to open the door to other misconduct by going into this line of questioning. I want Mr. Torres to be aware of that. MR. TORRES: Okay. THE COURT: I'm sorry. I'm lost. What are you talking about, Mr. Bennett? MR. TORRES: He's hoping I'll open the door to some 09:50 10 11 12 13 14 09:50 15 16 17 18 19 09:50 20 21 22 23 24 09:51 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 71 of 105 71 1 2 3 4 09:51 sort of transactions with my client. THE COURT: I'm assuming she was one of the customers. That's why they knew each other as well as her brother. MR. TORRES: I have no personal intelligence. That's unknown to me, Your Honor. THE COURT: That's fine. But it's a pretty logical inference from what is going on. MR. TORRES: Very good, Your Honor. (BENCH CONFERENCE CONCLUDED.) MR. TORRES: May I have a moment, Your Honor? THE COURT: Yes. MR. TORRES: May I approach the witness, Your Honor? THE COURT: You may. Q. 5 6 7 8 9 09:51 10 11 12 13 14 09:51 15 (BY MR. TORRES) I'll exchange this. Mr. Esquivel, those 16 17 18 19 09:51 20 are the photographs that Mr. Bennett was showing you yesterday. One of them I believe you testified was a black duffle bag that you had seen or had belonged to you in the past; is that correct? A. Q. Correct. How can you tell the ladies and gentlemen of the jury that 21 22 23 24 09:52 25 that duffle bag belonged to you or to your group? You can't, correct? MR. BENNETT: Object, Your Honor. He hasn't even answered the question. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 72 of 105 72 1 2 3 4 09:52 THE COURT: I was going to say let's see what the answer is first. A. We would use those black duffle bags, and that's the brown tape that we would use. Q. 5 6 7 8 9 Like every other doper in town? MR. BENNETT: Objection, Your Honor. It's assuming facts not in evidence. THE COURT: Speculation. Stained. MR. TORRES: Very good, Your Honor. Q. 09:52 10 (BY MR. TORRES) Based on what you yourself have seen and 11 12 13 14 09:52 15 your personal knowledge about the drug trade isn't it true in fact that that type of bag is the bag that everybody uses? A. Q. A. Q. A. Q. Sir, not everyone in Acuna uses that same bag. Have you seen other people use that bag? Yes, I have. Other people that have nothing to do with you, correct? Correct. Okay. So you cannot tell the ladies and gentlemen of the 16 17 18 19 09:52 20 jury that that's your bag. It looks like your bag, but like the bag that other people in Acuna use, correct? A. Q. 21 22 23 24 09:53 25 Correct. Okay. Let's talk a little bit about the photographs that you have seen. Isn't is true that during your visits with Mr. Bennett and representatives of the Government that you have gone through all these different photographs? Correct? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 73 of 105 73 1 2 3 4 09:53 A. Q. Correct. Okay. And that was in preparation of your testimony today, correct? A. Q. Correct. So this was not just a picture that Mr. Bennett took out 5 6 7 8 9 of his file and showed to you that you automatically recognize. It was a photograph that you had been shown at least on one occasion and you knew what the question was going to be and what your response should be, correct? A. Q. 09:53 10 Correct. Okay. So in essence, you had an opportunity to more or 11 12 13 14 09:53 15 less rehearse your testimony today, correct? MR. BENNETT: Object. Improper question. THE COURT: Mr. Torres, where are we going? You're getting on some very dangerous grounds. If any attorney puts a witness on that isn't prepared, that would be malpractice. MR. TORRES: Yes, ma'am. THE COURT: Everybody does it. MR. TORRES: Very good, Your Honor. Q. 16 17 18 19 09:53 20 (BY MR. TORRES) In reference to the different times that 21 22 23 24 09:53 25 you have met with the Government -- strike that. How many times have you had to meet with the Government to visit with them and tell them about the things that you have done and seen? A. I don't know. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 74 of 105 74 1 2 3 4 09:54 Q. A. Q. A. Q. A. Q. More than once? More than once. More than three times? Four to six times. Four to six times, correct? (Nods affirmatively.) Well, what was it that you left out on the last debrief 5 6 7 8 9 that you didn't tell them about on the first time? MR. BENNETT: Objection, Your Honor. That's assuming that there is something he left out. I would object to the form of the question. MR. TORRES: I'll rephrase the question, Your Honor. THE COURT: You-all better approach. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) THE COURT: Mr. Torres, in this case you are crossing some very serious boundaries. Now you better have a good faith basis for asking some of this stuff, because I'm not going to put up with it much longer. MR. TORRES: Your Honor, my only question is -- and I don't know because obviously I haven't had contact with him. It's just that I want to find out. Our defense is he has made up some of these things. THE COURT: Why don't you ask him that. MR. TORRES: Very good, Your Honor. Very good. (BENCH CONFERENCE CONCLUDED.) 09:54 10 11 12 13 14 09:54 15 16 17 18 19 09:54 20 21 22 23 24 09:54 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 75 of 105 75 1 2 3 4 09:55 Q. (BY MR. TORRES) Mr. Esquivel, when you met with the Government for the first time did you tell them anything about Ms. Esquivel? A. Q. A. Q. I did. You did? I did. Okay. Did you tell the Government everything that you 5 6 7 8 9 testified about yesterday in reference to Ms. Esquivel? A. Q. I did. Okay. So no information changed during the different 09:55 10 11 12 13 14 09:55 15 meetings you had in reference to Ms. Esquivel? A. Q. No. That was something you told them right up from day one; is that correct? A. Q. Correct. Mr. Esquivel, for the most part you have kind of lived 16 17 18 19 09:55 20 somewhat of a lie, correct? A. Q. Correct. Your job was to do what you were doing and for no one to find out, correct? A. Q. 21 22 23 24 09:55 25 Correct. So would it be fair to say that you have experience basically deceiving people? A. Q. Correct. Sir? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 76 of 105 76 1 2 3 4 09:56 A. Q. Correct. So you are used to in the past not letting people know what you really are thinking and what is really going on, correct? A. Q. 5 6 7 8 9 Correct. Well, is there any way that the ladies and gentlemen of the jury would know now that that's not what you're doing? A. Q. Everything I've said is the truth. But in the past have you not told other people things that 09:56 10 you have told them were the truth that were lies? A. Q. 11 12 13 14 09:56 15 They were lies. Well, my question is how can they tell? You've lied for so long in the past -MR. BENNETT: Objection, Your Honor. Counsel is testifying. THE COURT: Go ahead. Let him finish his question. Q. 16 17 18 19 09:56 20 (BY MR. TORRES) Isn't it true that you have lied so many times based on your testimony today in the past, and now you're telling the ladies and gentlemen of the jury it is the truth. How can they, how do they know when you are lying and when you're not, I guess is the question? THE COURT: Mr. Torres, aren't you invading the province of the jury? Isn't that up to them to determine the credibility? MR. TORRES: It is, Your Honor. It's just I'm trying 21 22 23 24 09:57 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 77 of 105 77 1 2 3 4 09:57 to get a basis. But I'll move on if the Court would like. THE COURT: I'm just saying you're asking him something that it's up to the jury to decide, unless he can actually answer. Can you answer that question, Mr. Esquivel? THE WITNESS: I'm sure I'm not the only one that has talked. And based on the information I gave them I think they confirmed my information with everybody else's. Q. 5 6 7 8 9 (BY MR. TORRES) So even if a lie is told more than once, it makes it true, or does it still remain a lie? THE COURT: Mr. Torres, that is rhetorical. Move on. MR. TORRES: Very good. Q. 09:57 10 11 12 13 14 09:57 15 (BY MR. TORRES) That's your response. That's the only way? Is that correct? A. (No response.) MR. TORRES: I'll move on, Your Honor. 16 17 18 19 09:58 20 Q. A. Q. (BY MR. TORRES) Are you a drug user, sir? Yes, I am. Are you under the influence of drugs today? MR. BENNETT: Objection, Your Honor. It's improper impeachment. THE COURT: Where are we going, gentlemen? MR. TORRES: My next question, Your Honor, is to find out if he's under the influence of drugs today. That's all. I think it's a valid question. THE COURT: Are you? 21 22 23 24 09:58 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 78 of 105 78 1 2 3 4 09:58 THE WITNESS: No. MR. TORRES: I'll move on, Your Honor. Q. (BY MR. TORRES) It's your testimony that Ms. Esquivel provided you information to further your illegal drug trade, correct? A. Q. 5 6 7 8 9 Correct. Okay. At what point did you and Ms. Esquivel just sit down and she said "Okay. I'm going to help you give this information and you're going to pay me X amount of dollars"? When did this happen? A. Q. A. Q. 09:58 10 11 12 13 14 09:58 15 That never happened. Because you never paid her, correct? Correct. So it's your testimony to the ladies and gentlemen of the jury that Ms. Esquivel risked her job, risked imprisonment -MR. BENNETT: Objection, Your Honor. That's not his testimony. MR. TORRES: I'll rephrase, Your Honor. Q. 16 17 18 19 09:58 20 (BY MR. TORRES) It's your testimony that Ms. Esquivel conspired to possess to transport marijuana with you and she never got paid, correct? A. Q. 21 22 23 24 09:59 25 Correct. Okay. Well, isn't it true that you were asking some of your other co-defendants for money because you were going to pay her? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 79 of 105 79 1 2 3 4 09:59 A. Q. A. Q. We talked about it. No. You collected money telling them that, correct? No, I didn't. Okay. Well, if Ms. Esquivel never sat down and entered 5 6 7 8 9 into an agreement or conspired with you, how was it that she ended up giving you this information? MR. BENNETT: Objection. He is misstating the question from the last question in this one. He said was it a conspiracy and now he's questioning the conspiracy. It's misstating the evidence and it's compounding the question. MR. TORRES: I'll rephrase, Your Honor. THE COURT: Okay. Rephrase. Q. 09:59 10 11 12 13 14 09:59 15 (BY MR. TORRES) Is it your testimony that Ms. Esquivel helped you by giving you information to further your drug trade? A. Q. 16 17 18 19 10:00 20 Correct. Okay. When was it that she made an agreement with you? Did she make an agreement with you at some point "I'm going to help you from today forward"? A. Q. A. No. She didn't make an agreement with me. She never agreed to conspire or to assist you, correct? Correct. MR. BENNETT: Objection, Your Honor. He never said 21 22 23 24 10:00 25 "assist." He said -THE COURT: Well, isn't that the ultimate issue in Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 80 of 105 80 1 2 3 4 10:00 this case? Isn't that what the jury is going to decide, whether there was such an agreement? MR. TORRES: Yes, ma'am. THE COURT: Okay. So don't -- I know what you're trying to get to, Mr. Torres. Rephrase your question. But don't use a legal term of art. MR. TORRES: Very good, Your Honor. Q. 5 6 7 8 9 (BY MR. TORRES) Did you ever reach an agreement? THE COURT: Don't use that word. MR. TORRES: That word, okay. THE COURT: See if you can rephrase it with another 10:00 10 11 12 13 14 10:00 15 word. Did you ever come to an understanding? MR. TORRES: Very good, Your Honor. MR. BENNETT: Your Honor, may the Government make a speaking objection? THE COURT: Approach. (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. BENNETT: Your Honor, as the Court is aware, an agreement can be inferred from the actions of others, as contained in the jury charge. THE COURT: I think what Mr. Torres is trying to get to is what did they actually do to come to the understanding. So you have a factual situation, definition colliding with a legal definition. That's why I'm trying to get Mr. Torres to rephrase to say factually "How did you come to this 16 17 18 19 10:01 20 21 22 23 24 10:01 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 81 of 105 81 1 2 3 4 10:01 understanding in terms of actions or words?" Maybe that's what you ought to do, Mr. Torres. MR. BENNETT: Will the Court instruct the jury that an agreement can be inferred? MR. TORRES: At the end. THE COURT: I'm going to instruct on that and you-all are going to argue that, I'm sure. But phrase your question such that it's clear that you are asking them what did they factually do, what did they factually say, what did they factually do together to come to this understanding so that it's clear that you are asking facts, not legal conclusions. Because he's also not -- he's not an expert and can't give you a legal conclusion. MR. TORRES: Can I start? Because I don't know if I really need to get into it if he testified he never reached an understanding with her. May I ask him that? THE COURT: Ask him what factually they did together or not together. You're still inferring the legal answer. And he's not an expert in the legal issue. He can't give you a legal answer. Even if he can answer it so to speak, he can't give you a legal determination. So make it clear you're asking him factually what steps were taken, whether it's words or actions were taken between him and the defendant in this case. MR. TORRES: I'll do my best, Your Honor. THE COURT: Okay. I know you will. 5 6 7 8 9 10:01 10 11 12 13 14 10:01 15 16 17 18 19 10:02 20 21 22 23 24 10:02 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 82 of 105 82 1 2 3 4 10:02 (BENCH CONFERENCE CONCLUDED.) Q. (BY MR. TORRES) Mr. Esquivel, at what point in time did Ms. Esquivel begin to help you? A. Q. A. Q. Before the first load. Before the first load that you ran, correct? Correct. In a ball park number, how many other loads were run or 5 6 7 8 9 taken prior to the first load that you were going to run? A. Q. A. Q. A. Q. A. Q. I don't know. Dozens, would you agree? In that area? Well, any of the ones you were involved in? (Nods affirmatively.) Many, many, many loads, correct? Correct. And all those loads, to be clear for ladies and gentlemen 10:03 10 11 12 13 14 10:03 15 16 17 18 19 10:03 20 of the jury, Ms. Esquivel never provided any information for those, correct? A. Q. No. Okay. And many, many, many, many of those loads never got 21 22 23 24 10:03 25 caught, correct? A. Q. Correct. So basically in a nutshell, you were successful in the transportation of marijuana long before you're alleging that Ms. Esquivel gave you any information, correct? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 83 of 105 83 1 2 3 4 10:03 A. Q. Correct. And again just to kind of be clear about that, it wasn't like all of a sudden Ms. Esquivel gave you a bunch of information and now you could run dope loads. You were doing that for a long time successfully without her, correct? A. Q. 5 6 7 8 9 Correct. Well, was there a time that you and Ms. Esquivel sat down and did certain things and then she began to help you? A. We would talk. I told her what I was going to do and she 10:04 10 provided me with information in order for me not to get caught. Q. 11 12 13 14 10:04 15 Well, let's talk about that. In what setting? Like you and I are talking at a distance, you were at her house? Where did that take place at? A. Q. A. Q. My apartment. Okay. Were you intimate at that time? We were. So just to be clear, it wasn't something where it was a 16 17 18 19 10:04 20 business agreement or a business understanding? THE COURT: It doesn't have to be. MR. TORRES: I understand, Your Honor. I'm just trying to find out. THE COURT: I don't understand what you're asking. It doesn't have to be -MR. TORRES: Yes, ma'am. THE COURT: -- for legal purposes. So rephrase your 21 22 23 24 10:04 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 84 of 105 84 1 2 3 4 10:05 question -MR. TORRES: Yes, ma'am. THE COURT: -- so that you can get to what you are getting to. Q. 5 6 7 8 9 (BY MR. TORRES) You were in the apartment for the first time with Ms. Esquivel in an intimate setting posing as her boyfriend, correct? A. Q. I wasn't posing. I was her boyfriend. So you were her boyfriend. You were in the setting and 10:05 10 you were trying to extract information from her, correct? A. Q. 11 12 13 14 10:05 15 Correct. Well, isn't it true that you and Mr. Patuel, and that's what your testimony was yesterday, that you intentionally wanted to date her because you felt she could be an asset for you? A. Q. A. 16 17 18 19 10:05 20 I didn't say I intentionally wanted to date her. Okay. Well, remind -I said that Ramon became interested in Kelly because we were going to start working that area. Q. So is it your testimony that you were not interested in 21 22 23 24 10:06 25 Ms. Esquivel at any point because it was helping you with your drug business? A. Q. A. Sir, I was interested in her since we were in school. Okay. This is way before that. It has nothing to do with her Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 85 of 105 85 1 2 3 4 10:06 going to the Border Patrol. Q. Well, you've testified earlier today that you wouldn't get your friends, your real friends involved in any of these type of things, correct? A. Q. 5 6 7 8 9 Correct. Yet you are testifying now that you legitimately felt something for Ms. Esquivel, yet you were trying to get information from her and involve her; is that correct? A. Q. Correct. Well, do you find that there is a difference between those 10:06 10 11 12 13 14 10:06 15 two statements? A. I was going to start working. And she was with me. She was my girlfriend. I asked her a couple of questions and she answered them. She told me what to do and what not to do while I'm over there. I guess she was watching out for me. MR. TORRES: Objection, speculation, Your Honor. THE COURT: You asked the question, Mr. Torres. MR. TORRES: Well, it was nonresponsive. THE COURT: But you asked what is the difference between those statements. Rephrase the question and see if you get what you are looking for. MR. TORRES: Very good, Your Honor. Q. 16 17 18 19 10:06 20 21 22 23 24 10:07 25 (BY MR. TORRES) Why would you expose someone that you cared for? A. Because I was wrong. I didn't know what I was doing. I Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 86 of 105 86 1 2 3 4 10:07 thought everything seemed easy to me back then. I hadn't realized what life is really like. This is -- I have had a lot of time to think while I've been in here. Q. A. In where? In jail. MR. BENNETT: Objection, Your Honor. MR. TORRES: I didn't ask the question he answered, 5 6 7 8 9 Your Honor. THE COURT: Overruled. MR. BENNETT: He asked where. THE COURT: Overruled. Q. 10:07 10 11 12 13 14 10:07 15 (BY MR. TORRES) Where are you in jail at? MR. BENNETT: Objection, Your Honor. THE COURT: Now you've asked. Mr. Torres, don't test the Court. MR. TORRES: Yes, ma'am. That's not my intent. THE COURT: I know. So be careful. MR. TORRES: Yes, ma'am. Q. 16 17 18 19 10:07 20 (BY MR. TORRES) You've had a lot of time to think, correct? A. Q. 21 22 23 24 10:08 25 Correct. Okay. Have you had a lot of time to think about the bad things you did or the enormous amount of time that you are exposed to? A. The bad things that I did. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 87 of 105 87 1 2 3 4 10:08 Q. Well, so you're not worried about the possibility of going to prison for a long time? MR. BENNETT: Objection, Your Honor. It's been asked and answered and it's in the province of the jury. THE COURT: Overruled. He can answer it. A. 5 6 7 8 9 It's the time I'm going to do. I've been doing it. Nothing has been easy. Q. Well, answer this question: After you were arrested has Ms. Esquivel ever gone to see you there at the jail? A. Q. A. Q. A. Q. 10:08 10 No. Has she every given you any money? No. Have you held that against her? No. You've testified that you really felt something for her, 11 12 13 14 10:08 15 16 17 18 19 10:08 20 correct? A. Q. Correct. Have you not felt abandoned because she hasn't come to visit you, honestly? A. No. MR. TORRES: May I have a moment, Your Honor? THE COURT: Yes, sir. 21 22 23 24 10:09 25 Q. (BY MR. TORRES) How much money were you making for each load approximately? A. Depending on the quantity. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 88 of 105 88 1 2 3 4 10:09 Q. Well, you testified 400 to 600 pounds I think yesterday more or less is what the loads were, correct? A. Q. It was 500. 500, okay. Refresh my memory. Was it $30,000 that you 5 6 7 8 9 were making? A. Q. A. Q. A. Q. $30,000. I wasn't making $30,000. Well, how much were you making? Maybe ten. Each load? Each load. And you ran dozens and dozens and dozens of loads, 10:09 10 11 12 13 14 10:09 15 correct? A. Q. A. Q. Correct. But they weren't all 500 pounds. What was the smallest load you ran? A hundred. Okay. Would it be fair to state that the only reason 16 17 18 19 10:09 20 you're still not selling marijuana or transporting marijuana is that you got caught? MR. BENNETT: Objection, Your Honor. Again, that's the province of the Court. THE COURT: I'm sorry? MR. BENNETT: Well, the fact that where he stands now and that's why he's not doing it is irrelevant to this proceeding. THE COURT: I'll allow him to answer it. 21 22 23 24 10:10 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 89 of 105 89 1 2 3 4 10:10 A. Q. Correct. So it wasn't you became again a good Samaritan and just realized it was wrong and you wanted to stop doing these things? A. 5 6 7 8 9 Sir, everybody has to go through some sort of problem in order to change. MR. TORRES: It was a yes -- objection, nonresponsive. THE COURT: Overruled. Q. 10:10 10 (BY MR. TORRES) Yes or no, you stopped because you got 11 12 13 14 10:10 15 caught? A. Q. Yes. Let's be clear. In reference to -- strike that. Were you the person that would go to Acuna to visit with the suppliers of the marijuana? A. Q. 16 17 18 19 10:10 20 Yes. Okay. And you would get paid and things like that, correct? A. Q. Yes. Okay. You've testified you never paid Ms. Esquivel, 21 22 23 24 10:10 25 correct? A. Q. Correct. Did Ms. Esquivel ever go and enter into an agreement with anyone or go visit with anyone in Acuna about the dope business? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 90 of 105 90 1 2 3 4 10:11 A. Q. A. No. Did Ms. Esquivel ever hire anybody? No. MR. TORRES: One moment, Your Honor. I pass the 5 6 7 8 9 witness. Thank you, Your Honor. THE COURT: Mr. Bennett. REDIRECT EXAMINATION Q. (BY MR. BENNETT) Mr. Esquivel, you just testified that you never paid Ms. Esquivel, correct? A. Q. A. Q. A. 10:11 10 Correct. Did you buy her things? I did. What did you buy her? After the first load I called her when I was in Fort Worth 11 12 13 14 10:11 15 and I told her to meet me in San Antonio. We were at the mall. I got her perfume. We started whenever we got back to Del Rio we would -- I would pretty much treat her, try to keep her happy. We would go out to dinner, have lunch, just try to have a good time with her. Q. 16 17 18 19 10:12 20 Did you -- well, let's break it down. Do you recall how 21 22 23 24 10:12 25 much you spent involving dinners? A. Q. Maybe $1,000. Do you recall giving agents a written statement concerning the amount of money that you spent on her? A. I do. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 91 of 105 91 1 2 3 4 10:12 Q. Would it help to refresh your recollection if you looked at that in response to these questions? A. Yes, sir. MR. BENNETT: Your Honor, may I approach? THE COURT: You may. 5 6 7 8 9 Q. (BY MR. BENNETT) Will you take a moment to look that over and let me know when you are finished. A. Q. Okay. So approximately how much would you spend on dinners and 10:13 10 things? A. Q. A. Q. A. Q. A. Q. A. 11 12 13 14 10:13 15 $1,000 to $2000. Would you spend money on anything else for her? We would go out shopping at HEB. We went out to the club. How much total in these kind of expenses? $1,000 to $2,000. I'm sorry? $1,000 to $2000. Was there any point that you just gave her money? No. MR. BENNETT: May I approach the witness, Your Honor? THE COURT: You may. 16 17 18 19 10:13 20 21 22 23 24 10:14 25 Q. (BY MR. BENNETT) Will you please -- would it help to refresh your recollection if you looked at that statement again? A. Yes. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 92 of 105 92 1 2 3 4 10:14 Q. And would you read the portion that talks about the money and let me know when you are finished. A. Q. A. Q. A. Okay. How much? Would you give her any money? $50, $60 to go shopping at HEB to bring us some food. How many times did you do that? A couple of times. To the convenience store to go get 5 6 7 8 9 certain things. Q. And was that money -- where did you get that money to give 10:14 10 her? A. 11 12 13 14 10:14 15 My drug business. MR. BENNETT: May I approach to retrieve that document, Your Honor? THE COURT: You may. Q. (BY MR. BENNETT) Who would handle the money between you 16 17 18 19 10:15 20 and Ramon? A. Q. A. Q. A. Q. Ramon. And how would you get paid? He would give me almost half of everything he would make. How would he give it to you? In cash. Well, kind of just describe a typical scenario when he 21 22 23 24 10:15 25 would give you money. A. Q. Maybe $10,000 wrapped in rubber bands. And at what time did that take place with respect to any Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 93 of 105 93 1 2 3 4 10:15 particular load? A. Q. After we would turn in the load we would get paid. Now who would have, between you and Ramon who would have more contact with the people in Mexico? A. 5 6 7 8 9 Depending on what people, I had more contact with Ray Flores and he has got more contact with Don Chuy. Q. Now in cross examination Mr. Torres asked you about friends and acquaintances. Did you ever threaten any of these people to provide you information? A. Q. 10:16 10 No. Did you threaten to run loads -- did you force them to run 11 12 13 14 10:16 15 loads for you? A. Q. A. Q. A. Q. No. Did you pay them? I did. What kind of transactions would you characterize this as? They wanted to make money. And Mr. Torres asked you about all the loads before 16 17 18 19 10:17 20 Ms. Esquivel started helping you before she provided information. Do you recall that? A. Q. 21 22 23 24 10:17 25 Yes. From the time she provided information to you how many loads did you guys run, caught or not caught? A. We ran three. But the rest of the other guys, they ran about three or four. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 94 of 105 94 1 2 3 4 10:17 Q. A. Q. A. Q. Who are the others guys? Shannon Pierce. And how much marijuana were in his loads, if you recall? 600 pounds. So three to four loads of 600 pounds. What does that 5 6 7 8 9 total up to if you do the math in your head? A. Q. 2400 pounds. Do you know for a fact that he used the information obtained from you? A. 10:17 10 Yes. MR. TORRES: Objection, Your Honor, unless he 11 12 13 14 10:17 15 actually stated that to him, he wouldn't have personal knowledge. THE COURT: Did they tell you that? THE WITNESS: It was said to Simon Pearce to use that highway, and Ramon told him everything that Kelly had told us. THE COURT: That Kelly? THE WITNESS: Kelly Esquivel. THE COURT: Just so we're clear for the record, refer to her as Ms. Esquivel. THE WITNESS: Thank you. THE COURT: Go ahead, Mr. Bennett. Q. 16 17 18 19 10:18 20 21 22 23 24 10:18 25 (BY MR. BENNETT) So if you could total up between you and Ramon and Mr. Pierce, how much marijuana would you say you moved using her information? Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 95 of 105 95 1 2 3 4 10:18 A. Q. A. Q. A. 4,200 pounds. I'm sorry? 4,200 pounds. Is that an approximation? Correct. MR. BENNETT: May I have a moment, Your Honor? THE COURT: You may. (Counsel confer.) MR. BENNETT: Your Honor, may I approach the witness? THE COURT: You may. 5 6 7 8 9 10:19 10 11 12 13 14 10:19 15 Q. (BY MR. BENNETT) Mr. Esquivel, do you recall what has been marked as Government's Exhibit Number 8, what that is again? A. Q. A. Q. A. Q. A. Yes. And does your signature appear on there? Yes. Do your initials appear on there? They do. What is that? This is what I had to sign in order for me to get the room 16 17 18 19 10:19 20 21 22 23 24 10:20 25 at the Holiday Inn Express in Fort Worth, Texas. Q. And to your knowledge from what it appears to you has it been altered or changed in any way? A. No. MR. BENNETT: Your Honor, at this time the Government Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 96 of 105 96 1 2 3 4 10:20 moves to admit Government's Exhibit Number 8. MR. TORRES: Your Honor, I'd like a moment to review it, please. THE COURT: You may. MR. TORRES: Your Honor, in reference to the first page of Exhibit 8 or proposed Exhibit 8 that Mr. Bennett has tendered where it has been signed by Mr. Esquivel, I have no objection. However, Your Honor, there is no signature on the guest signature line on page two. THE COURT: Let me see it, because I don't know what you-all talking about. MR. TORRES: Yes, ma'am. May I approach? (ON-THE-RECORD BENCH CONFERENCE, TO WIT:) MR. TORRES: I don't think it has it. MR. BENNETT: These are hotel receipts. I'm not offering it for the truth of the matter asserted. THE COURT: So what is your objection, Mr. Torres? MR. TORRES: Well, Your Honor, there is no guarantee that page one and two, that that in fact is the second page of the same thing. He has adopted the front page as self authenticating. With a signature he can adopt it as a document that is either accepted or adopted; but the second page I don't see any signature. The guest signature line is empty on the bottom. There is no way that we can show in fact what that is, that that goes with it. 5 6 7 8 9 10:20 10 11 12 13 14 10:20 15 16 17 18 19 10:20 20 21 22 23 24 10:21 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 97 of 105 97 1 2 3 4 10:21 THE COURT: Let me ask a question. If it talks about Room 317 arrival and departure date and that matches Room 317 arrival and departure date, are you talking about the reliability of it? MR. TORRES: The reliability, Your Honor. And I think the way to remedy it would possibly be to have him go through the second page and review it and adopt it as well. THE COURT: That's fine with me. MR. TORRES: That's my objection. THE COURT: That's fine with me. I'm just saying that it appears to be, they appear to be of the same visit. The question is if they're of the same record. They would be two different records. Go through it, Mr. Bennett. MR. BENNETT: Your Honor, just to be clear, he may not remember the balance sheet. He may not remember the balance sheet; but my position is it's a hotel receipt and it's self authenticating. THE COURT: But he has to be able to say that that second page goes with the first page, that it's all part of the same package. MR. TORRES: Exhibit. THE COURT: It's part of the same thing. MR. BENNETT: If he can identify it. I don't know if he knows how they keep those things. It's self authenticating. THE COURT: So how is it self authenticating? 5 6 7 8 9 10:21 10 11 12 13 14 10:21 15 16 17 18 19 10:22 20 21 22 23 24 10:22 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 98 of 105 98 1 2 3 4 10:22 MR. BENNETT: It's self authenticating, the 901(b)(4) And I have Seventh Circuit case law. THE COURT: Let me look at 901(b)(4), Mr. Bennett, because it's been a while since I've read it. MR. BENNETT: I did too because of case law. MR. TORRES: I trust Mr. Bennett. THE COURT: (4) talks about "appearance, contents, substance, internal patterns or other distinctive characteristics." What are you claiming are the patterns, distinctive characteristics? I mean, I can see the internal patterns in terms of the date and the room number and the address of the person. I can see that. MR. BENNETT: I think they are sufficient to qualify as a hotel receipt of Holiday Inn Express. THE COURT: I don't know that they're that distinctive. That one may be distinctive in itself because of, like I said, the internal patterns; but I don't know that they are per se. They are more like business records. MR. TORRES: We don't have an affidavit. My understanding the one he signed is fine. He adopted it or accepted it; but the other one has no signature. THE COURT: Just get him to see if he remembers if that's the case and then we'll go from there. MR. BENNETT: Okay. (BENCH CONFERENCE CONCLUDED.) 5 6 7 8 9 10:23 10 11 12 13 14 10:23 15 16 17 18 19 10:23 20 21 22 23 24 10:23 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 99 of 105 99 1 2 3 4 10:24 MR. BENNETT: May I approach the witness? THE COURT: You may. Q. (BY MR. BENNETT) Mr. Esquivel, you stated about the first page. Do you recognize the second page? A. Q. A. 5 6 7 8 9 I do. And what is the second page? The sums I paid for the room. MR. BENNETT: Your Honor, I move to admit Government's Exhibit 8. MR. TORRES: Without objection at this point, Your Honor. THE COURT: So admitted. MR. BENNETT: May I publish it to the jury, Your Honor? THE COURT: You may. Q. 10:24 10 11 12 13 14 10:24 15 16 17 18 19 10:25 20 (BY MR. BENNETT) Mr. Esquivel, can you read that from there? A. Q. A. Q. A. Q. A. I can. What is this again? That's a form I had to sign in order to get the room. Where? Holiday Inn Express, Fort Worth, Texas. Why were you at the Holiday Inn? We had just turned in the load and we needed somewhere to 21 22 23 24 10:25 25 sleep, and that was the closest to the spot where we dropped it Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 100 of 105 100 1 2 3 4 10:25 off. Q. A. Q. And what does the arrival date reflect on this exhibit? I can't see it. 10/30/07. I believe you are looking at the departure. Look to the 5 6 7 8 9 left of that. A. Q. A. Q. 10/29/07. And which load is that? This was the first load. You testified earlier that the first load was in the 10:26 10 middle of October. Could this have been the second load? MR. TORRES: Objection, leading, Your Honor. THE COURT: Don't lead. A. Q. A. Q. A. Q. A. 11 12 13 14 10:26 15 Correct. Correct as to what? This was the second load. And when did you depart? 10/30/07. Where were you going after you departed? Del Rio, Texas. MR. BENNETT: May I approach the courtroom deputy? THE COURT: You may. MR. BENNETT: May I have a moment, Your Honor? THE COURT: You may. (Counsel confer.) MR. BENNETT: Pass the witness, Your Honor. 16 17 18 19 10:26 20 21 22 23 24 10:27 25 Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 101 of 105 101 1 2 3 4 10:27 THE COURT: Mr. Torres. RECROSS EXAMINATION Q. (BY MR. TORRES) Mr. Esquivel, you testified that you were making several thousand dollars for each load, correct? A. Q. 5 6 7 8 9 Correct. And all the drivers were getting paid lots of money each time they ran a load, right? A. Q. A. Q. Correct. So to be clear, everybody got paid money. Right? Correct. But Ms. Esquivel got a couple of drinks at the club? MR. BENNETT: Objection. That's misstating his 10:27 10 11 12 13 14 10:28 15 testimony, Your Honor. THE COURT: Go ahead. Keep asking. Q. (BY MR. TORRES) A couple of drinks at the club, some 16 17 18 19 10:28 20 perfume, and you'd give her some grocery money so she could bring back groceries so you two could eat. Correct? A. Q. Correct. Okay. So why didn't she make $10,000 or $5,000 or whatever? A. Q. A. Q. A. 21 22 23 24 10:28 25 I never offered to pay her. But you offered to pay everybody else, correct? Correct. Well, why did you not offer to pay her? I just didn't feel the need to. Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 102 of 105 102 1 2 3 4 10:28 Q. Well, isn't it true that based on your experience -- well, strike that. You have dated other people then other than Ms. Esquivel, correct? A. Q. A. Q. A. Q. A. Q. A. Q. Correct. Have you ever bought them gifts in the past? Yes, I have. Perfume? Yes. Have you ever bought them a couple of drinks at the club? Yes. Have you ever bought them dinner? Yes. And they weren't giving you information to help further 5 6 7 8 9 10:28 10 11 12 13 14 10:28 15 your marijuana business, were they? A. Q. No. Okay. So you didn't give anything to Ms. Esquivel 16 17 18 19 10:29 20 different from any other young lady that you have dated in the past, correct? A. Q. Correct. In reference to the exhibit Mr. Bennett just had up there, 21 22 23 24 10:29 25 the hotel, you are not telling the ladies and gentlemen of the jury that Ms. Esquivel went up there to the Holiday Inn Express with you, right? A. Q. No. And nothing in this document has her signature on it, Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 103 of 105 103 1 2 3 4 10:29 correct? A. Q. A. Q. Correct. She didn't use a credit card to pay for it, right? Right. All that does is show that you stayed at some hotel where 5 6 7 8 9 you were out running just another dope load, right? A. Correct. MR. TORRES: I pass the witness, Your Honor. THE COURT: Mr. Bennett. FURTHER DIRECT EXAMINATION 10:29 10 11 12 13 14 10:30 15 Q. (BY MR. BENNETT) Mr. Esquivel, you previously testified that you were running the marijuana from Spur 454, correct? A. Q. A. Q. A. Q. A. Q. Correct. Why did you go over to the Comstock area? We hadn't used that area. And while using that area you were arrested, correct? Correct. And were you arrested with the marijuana? Yes. Why were you -- because previously you had used drivers. 16 17 18 19 10:30 20 21 22 23 24 10:30 25 Why were you now moving the marijuana? A. I wanted to make more money. MR. BENNETT: No further questions. THE COURT: Mr. Torres. FURTHER CROSS EXAMINATION Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 104 of 105 104 1 2 3 4 10:31 Q. (BY MR. TORRES) Mr. Esquivel, would it be fair to say you finally got caught because you got a little greedier? You wanted more of the pie for yourself, correct? A. Correct. MR. TORRES: Thank you, Your Honor. MR. BENNETT: Nothing further, Your Honor. THE COURT: You may step down. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 oOo Case 2:07-cr-01065-AML Document 203 Filed 06/09/2009 Page 105 of 105 105 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS ) ) I, ANNA RENKEN LAFRENZ, Official Court Reporter for the United States District Court, Western District of Texas, do hereby certify that the foregoing is a correct transcript from the record of proceedings in the above matter. Certified to by me this 5th day of June, 2009. Anna Renken Lafrenz__________ ANNA RENKEN LAFRENZ, CSR, RPR United States District Court Western District of Texas 111 E. Broadway Suite 214 Del Rio, Texas 78840 CSR #2343 Expires 12/31/10 #6202ARL