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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA HONORABLE LARRY ALAN BURNS, JUDGE PRESIDING

3 4 UNITED STATES OF AMERICA, 5 6 7 8 9 10 11 12 13 14 15 16 17 18 FOR THE DEFENDANT: 19 20 21 22 23 24 25 COURT REPORTER: EVA OEMICK OFFICIAL COURT REPORTER UNITED STATES COURTHOUSE 940 FRONT STREET, STE. 2190 SAN DIEGO, CA 92101 TEL: (619) 615-3103 FEDERAL DEFENDERS, INC. BY: STEPHEN DEMIK, ESQ. 225 BROADWAY, STE. 900 SAN DIEGO, CA 92101 APPEARANCES: FOR THE GOVERNMENT: KAREN P. HEWITT, U.S. ATTORNEY BY: A. DALE BLANKENSHIP, ESQ. LAUREN J. BAREFOOT, ESQ. ASSISTANT U.S. ATTORNEYS 880 FRONT STREET SAN DIEGO, CA 92101 REPORTER'S TRANSCRIPT VIDEO DEPOSITION HEARING ) ) PLAINTIFF, ) ) VS. ) ) JULIO MARTINEZ-HERNANDEZ, ) ) DEFENDANT. ) __________________________________) CASE NO. 07CR03101-LAB SAN DIEGO, CALIFORNIA JANUARY 24, 2008 10:00 A.M.

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SAN DIEGO, CALIFORNIA - THURSDAY, JANUARY 24, 2008-10:00 A.M. THE CLERK: CALLING NO. 1 ON THE CALENDAR,

07CR03101, USA VERSUS JULIO MARTINEZ-HERNANDEZ ON FOR VIDEO DEPOSITION HEARING. MR. BLANKENSHIP: GOOD MORNING, YOUR HONOR. DALE

BLANKENSHIP AND LAUREN BAREFOOT ON BEHALF OF THE UNITED STATES. THE COURT: MS. BAREFOOT. MR. DEMIK: GOOD MORNING, YOUR HONOR. STEPHEN GOOD MORNING, MR. BLANKENSHIP AND

DEMIK, FEDERAL DEFENDERS, ON BEHALF OF MR. MARTINEZ WHO IS NOW PRESENT BEFORE THE COURT IN CUSTODY. THE COURT: GOOD MORNING, MR. MARTINEZ.

THE COURT HAS AUTHORIZED AND ORDERED THE VIDEOTAPED DEPOSITION OF GOVERNMENT WITNESS AGENT LEE MILLER. MILLER IS PRESENT. AGENT

THE DEPOSITION MAY COMMENCE AT THIS TIME. DALE BLANKENSHIP WITH LAUREN

MR. BLANKENSHIP: BAREFOOT FROM MY OFFICE.

I DO HAVE AGENT MILLER, AND RAY

CHRISTENSEN FROM MY OFFICE WILL BE CONDUCTING THE VIDEOTAPING. AT THIS TIME, THE GOVERNMENT CALLS LEE MILLER TO THE STAND. LEE MILLER WAS CALLED AS A WITNESS AND, AFTER HAVING BEEN DULY SWORN, TESTIFIED AS FOLLOWS: THE CLERK: PLEASE STATE YOUR FULL NAME AND SPELL

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YOUR LAST NAME FOR THE RECORD. THE WITNESS: M-I-L-L-E-R. DIRECT EXAMINATION BY MR. BLANKENSHIP: Q. GOOD MORNING, AGENT MILLER. CAN YOU PLEASE TELL THE COURT, BY WHOM ARE YOU EMPLOYED? A. YES, SIR. I'M A UNITED STATES BORDER PATROL AGENT. Q. YOU RECOGNIZE THE TESTIMONY THAT YOU'RE GIVING HERE -THE TESTIMONY YOU'RE GIVING HERE MY NAME IS LEE MILLER, L-E-E

YOU'VE JUST BEEN SWORN IN.

IS THE SAME AS IF YOU WERE GIVING IT IN TRIAL. A. Q. YES, SIR, I UNDERSTAND. AGENT MILLER, CAN YOU PLEASE TELL THE COURT, HOW LONG

HAVE YOU BEEN EMPLOYED WITH THE UNITED STATES BORDER PATROL? A. YES, SIR. I'VE BEEN EMPLOYED NINE AND A HALF YEARS WITH THE BORDER PATROL. Q. A. AND WHERE HAVE YOU BEEN STATIONED FOR THOSE NINE YEARS? YES, SIR. BARRING THE ACADEMY TIME, WHICH WAS ABOUT SIX MONTHS, I'VE BEEN STATIONED AT THE IMPERIAL BEACH AREA FOR THE ENTIRE NINE YEARS. Q. AND IS THAT ALSO WHERE YOU'RE CURRENTLY ASSIGNED?

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A. Q.

YES, SIR. NOW, CAN YOU PLEASE GENERALLY DESCRIBE YOUR DUTIES WITH

THE BORDER PATROL. A. YES, SIR. I'M ASSIGNED TO THE ALL-TERRAIN VEHICLE UNIT THERE IN THE IMPERIAL BEACH AREA OF OPERATIONS AND PATROL THAT AREA, APPROXIMATELY 13 MILES OF THE BORDER, ON AN ALL-TERRAIN VEHICLE, AN ATV. Q. A. Q. WERE YOU ON DUTY ON OCTOBER 15TH, 2007? YES, SIR, I WAS. AND CAN YOU TELL THE COURT WHERE YOU WERE ASSIGNED ON

OCTOBER 15TH, 2007. A. YES, SIR. I WAS SPECIFICALLY ASSIGNED TO THE WEST ZONE AREA OF OPERATIONS OF THE IMPERIAL BEACH AREA, WHICH IS THE AREA CONSISTING OF THE BORDER TO THE WEST OF THE SAN YSIDRO PORT OF ENTRY ALL THE WAY TO THE BEACH. Q. WHEN YOU SAY THE "BEACH," ARE YOU TALKING ABOUT THE BEACH

THAT IS PART OF THE PACIFIC OCEAN, SAN DIEGO -A. Q. YES, SIR, IMPERIAL BEACH, FRIENDSHIP PARK. NOW, I'D LIKE TO DIRECT YOUR ATTENTION TO THE MORNING

HOURS OF OCTOBER 15TH, 2007 AT APPROXIMATELY 5:20 A.M. DID YOU HAVE OCCASION TO BECOME INVOLVED IN THE ARREST OF THE DEFENDANT IN THIS CASE, JULIO MARTINEZ-HERNANDEZ?

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A. Q.

YES, SIR, I DID. CAN YOU -- BEFORE WE GET INTO THE SPECIFICS OF THAT

EVENT, CAN YOU PLEASE DESCRIBE THE LOCATION OF AN AREA CALLED THE ELBOW. A. YES, SIR. THE ELBOW IS LOCATED APPROXIMATELY A HALF A MILE TO THE WEST OF THE SAN YSIDRO PORT OF ENTRY. AND IT'S DIRECTLY

ADJACENT TO THE U.S./MEXICO BORDER PROBABLY 250 YARDS, 300 YARDS TO THE NORTH OF THE ACTUAL INTERNATIONAL BOUNDARY. MR. BLANKENSHIP: WITNESS? THE COURT: YOU MAY. I'VE HANDED TO THE WITNESS WHAT'S YOUR HONOR, MAY I APPROACH THE

MR. BLANKENSHIP:

BEEN MARKED AS GOVERNMENT'S EXHIBITS 1A AND 1B -- I'M SORRY -1A AND 2A. BY MR. BLANKENSHIP: Q. A. Q. A. Q. A. CAN YOU FIRST TAKE A LOOK AT GOVERNMENT'S EXHIBIT 1A. YES, SIR. DO YOU RECOGNIZE GOVERNMENT'S EXHIBIT 1A? YES, SIR, I DO. WHAT IS THAT? THIS IS THE EASTERNMOST PORTION OF THE WESTERN ZONE OF

THE IMPERIAL BEACH AREA OF OPERATIONS. Q. A. IS THAT ALSO A GOOGLE MAP REPRESENTATION OF THAT AREA? YES, SIR, THAT APPEARS TO BE WHAT IT IS.

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Q. A.

HOW ARE YOU ABLE TO RECOGNIZE GOVERNMENT'S EXHIBIT 1A? JUST FROM MY EXPERIENCE WORKING THERE FOR THE LAST

NINE YEARS, I RECOGNIZE THE AREA. Q. AND IS GOVERNMENT'S EXHIBIT 1A A FAIR AND ACCURATE

DEPICTION OF THE U.S./MEXICO INTERNATIONAL BORDER AREA AND THE IMPERIAL BEACH BORDER PATROL STATION AREA OF RESPONSIBILITY, AND SPECIFICALLY THE ELBOW AREA? A. YES, SIR, IT IS. MR. BLANKENSHIP: AT THIS TIME, I'D MOVE TO ADMIT

GOVERNMENT'S EXHIBIT 1A, YOUR HONOR. MR. DEMIK: THE COURT: NO OBJECTION. 1A IS ADMITTED.

(EXHIBIT NO. 1A RECEIVED INTO EVIDENCE) BY MR. BLANKENSHIP: Q. YOU INDICATED THAT THIS IS THE AREA THAT YOU'VE BEEN

WORKING, AND SPECIFICALLY OCTOBER THE 15TH YOU WERE IN THIS AREA? A. Q. YES, SIR. WHERE IN PARTICULAR IS THE ELBOW LOCATED ON GOVERNMENT'S

EXHIBIT 1A? A. THE ELBOW IS RIGHT HERE (INDICATING). IT LOOKS LIKE AN

L-SHAPE.

IT'S ACTUALLY THE NORTH LEVEE OF THE TIJUANA RIVER SO

WHERE IT TURNS FROM RUNNING EAST/WEST TO NORTH/SOUTH. RIGHT HERE IN THIS PICTURE (INDICATING). Q.

AND CAN YOU PLEASE INDICATE ON GOVERNMENT'S EXHIBIT 1A

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THE APPROXIMATE LOCATION OF THE U.S./MEXICO INTERNATIONAL BORDER. A. YES, SIR. IT'S RIGHT HERE (INDICATING). IF YOU CAN SEE THIS

YELLOW LINE, IT'S JUST BARELY NORTH OF THAT YELLOW LINE RIGHT THERE RUNNING EAST/WEST. Q. DOES THAT LINE EXTEND ALL THE WAY FROM THE LEFTMOST

PORTION OF GOVERNMENT'S EXHIBIT 1A TO THE RIGHTMOST PORTION OF GOVERNMENT'S EXHIBIT 1A? A. Q. YES, SIR, IT DOES. WITH RESPECT TO THE ELBOW, YOU INDICATED WITH YOUR FINGER

ON GOVERNMENT'S EXHIBIT 1A AN AREA THAT IS APPROXIMATELY ONE-THIRD FROM THE BOTTOM OF THE PAGE UP AND IN ALMOST THE DIRECT CENTER OF THAT ONE-THIRD OF THE WAY UP? A. Q. YES, SIR, RIGHT HERE (INDICATING). CAN YOU NOW TAKE -MR. BLANKENSHIP: HONOR? THE COURT: BY MR. BLANKENSHIP: Q. CAN YOU TAKE A PEN THERE AND CIRCLE THE AREA OF THE YES. MAY I APPROACH THE WITNESS, YOUR

ELBOW. A. Q. YES, SIR. AND YOU'VE INDICATED -CAN YOU PUT YOUR INITIALS NEXT TO THE CIRCLE THERE.

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NOW, DIRECTING YOUR ATTENTION TO THE EARLY MORNING HOURS OF OCTOBER 15TH, CAN YOU PLEASE DESCRIBE THE CIRCUMSTANCES THAT LED TO YOUR INVOLVEMENT IN THE ARREST OF THE DEFENDANT. A. YES, SIR. I WAS RIDING MY ALL-TERRAIN VEHICLE TO THE SOUTH LEVEE ROAD JUST NORTH OF THE BOLLARD WHEN APPROXIMATELY AT THE SAME TIME I OBSERVED SOME INDIVIDUALS AND THE E SCOPE OPERATOR CALLED OUT THAT HE HAD FOUR INDIVIDUALS RUNNING NORTHBOUND TOWARDS THE ELBOW. Q. YOU SAID THE "BOLLARD." CAN YOU DESCRIBE WHAT THE BOLLARD IS FOR THE COURT. YES, SIR. THE BOLLARD IS A CONCRETE FENCE MADE OUT OF CONCRETE POLES WITH A METAL EXTENSION ON TOP OF IT, ANGLED METAL EXTENSION. IT'S ACTUALLY THE SECOND FENCE THAT YOU WOULD HAVE I

TO CROSS TO ENTER THE UNITED STATES ILLEGALLY IN THIS AREA. WAS DIRECTLY NORTH OF THAT FENCE. THERE'S A ROAD THAT GOES

ALONG THE BOTTOM, A DIRT ROAD, THAT WE LOOK FOR FOOTPRINTS AND OTHER SIGNS OF ENTRY INTO THE COUNTRY. Q. AND THAT FENCE EXTENDS THE ENTIRE LENGTH EAST AND WEST IN

THE AREA OF THE ELBOW? A. Q. YES, SIR, IT DOES. AFTER YOU SAW THOSE INDIVIDUALS, YOU SAID YOU SAW THEM

WHILE YOU WERE AT THE BOLLARD FENCE?

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A.

YES, SIR.

I WAS SOUTH OF THE ELBOW AND A LITTLE BIT TO

THE WEST, IF I CAN DIRECT YOUR ATTENTION TO THE MAP HERE, IN APPROXIMATELY THIS AREA KNOWN AS STEWART'S BRIDGE (INDICATING). AND I OBSERVED THE MOVEMENT OF INDIVIDUALS

RUNNING TO THE NORTH. Q. AND YOU'VE CIRCLED THE AREA WHERE YOU OBSERVED THAT

MOVEMENT? A. Q. A. YES, SIR. --

AND WHAT DID YOU DO WHEN YOU OBSERVED THAT MOVEMENT? THAT'S WHEN I -- ON MY ATV, I TRAVERSED ACROSS THE

TIJUANA RIVER, WHICH AT THAT TIME WAS DRY, AND MADE MY AWAY DIRECTLY TOWARDS THE ELBOW. Q. WHAT HAPPENED WHEN YOU ARRIVED IN THE AREA OF THE

ELBOW? A. YES, SIR. MY RIDING PARTNER AND MY SUPERVISOR AGENT JAY LAMBERT HAD BEEN ALSO IN THE AREA, AND HE HAD ALREADY GOTTEN THERE BEFORE I DID. DETAINED. Q. AND I'D LIKE TO DIRECT YOUR ATTENTION TO GOVERNMENT'S 2A. HE HAD TWO INDIVIDUALS IN CUSTODY

JUST TAKE A LOOK AT THAT TO YOURSELF REAL QUICK. DO YOU RECOGNIZE GOVERNMENT'S EXHIBIT 2A? A. YES, SIR. THIS IS A PICTURE TAKEN FROM ON TOP OF THE

ELBOW LOOKING TO THE NORTH/NORTHWEST. MR. BLANKENSHIP: MAY I RETRIEVE GOVERNMENT'S

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EXHIBIT 2A? THE COURT: THE EXHIBIT HERE. MR. DEMIK: BY MR. BLANKENSHIP: Q. NOW, WITH RESPECT TO GOVERNMENT'S EXHIBIT 2A, CAN YOU THANK YOU, YOUR HONOR. MR. DEMIK, YOU MAY APPROACH AND LOOK AT

PLEASE TELL THE COURT WHAT THAT IS. A. YES, SIR. THIS IS THE ELBOW -- A PICTURE TAKEN FROM THE ELBOW LOOKING OFF FROM THE NORTH AND WEST. Q. A. HOW DO YOU KNOW RECOGNIZE GOVERNMENT'S EXHIBIT 2A? AGAIN, FROM MY EXPERIENCE IN WORKING THERE FOR SO LONG.

AND ALSO, THERE'S SEVERAL FEATURES, THE BEND IN THE ROAD AND THE METAL FENCE. Q. DOES GOVERNMENT'S EXHIBIT 2A FAIRLY AND ACCURATELY DEPICT

THE AREA OF THE ELBOW? A. YES, SIR. MR. BLANKENSHIP: EXHIBIT 2A. MR. DEMIK: THE COURT: NO OBJECTION. RECEIVED. MOVE TO ADMIT GOVERNMENT'S

(EXHIBIT NO. 2A RECEIVED INTO EVIDENCE) BY MR. BLANKENSHIP: Q. NOW, WITH RESPECT TO GOVERNMENT'S EXHIBIT 2A, YOU

INDICATED THAT YOU ARRIVED TO THE ELBOW AREA AND YOU OBSERVED

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AGENT LAMBERT ALREADY THERE? A. YES. WHEN I GOT TO THE ELBOW, AGENT LAMBERT HAD ALREADY AND HE HAD TWO INDIVIDUALS WITH HIM WHO HE WAS

GOTTEN THERE. DETAINING. Q. A.

WHAT DID YOU DO AFTER YOU GOT THERE? I ASKED HIM IF -- BECAUSE THE SCOPE HAD CALLED OUT FOUR SO I ASKED WHERE THE OTHERS

INDIVIDUALS, AND HE ONLY HAD TWO. HAD GONE. Q. A. WHAT HAPPENED THEN?

HE SAW AT LEAST ONE MORE RUN TO THE NORTH AROUND THIS

CORNER ACTUALLY BETWEEN THE LEVEE AND THE TERTIARY FENCE HERE, RUNNING NORTHBOUND (INDICATING). Q. YOU JUST POINTED TO AN AREA ON GOVERNMENT'S EXHIBIT 2A

THAT IS IN THE RIGHTMOST OR RIGHT IN THE MIDDLE BUT DIRECTLY ABOVE THE GOVERNMENT'S EXHIBIT STICKER, AND YOU'RE INDICATING A FENCE LOCATED ON GOVERNMENT'S EXHIBIT 2A? A. YES, SIR. THIS BEND IN THE ROAD, THE FENCE LIKEWISE THE

MAKES A 90-DEGREE TURN RIGHT HERE (INDICATING).

INDIVIDUAL WAS RUNNING AROUND THIS CORNER THAT YOU CANNOT SEE IN BETWEEN THE LEVEE AND THE FENCE (INDICATING). Q. YOU'RE SAYING THAT THERE'S A LEVEE. IS THAT ACTUALLY WHAT THE ROAD SITS ON TOP OF? THAT'S THE LEVEE YOU'RE TALKING ABOUT? Q. A. THAT'S INDICATED IN GOVERNMENT'S EXHIBIT 2A? YES, SIR.

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Q.

CAN YOU JUST PUT YOUR FINGER RIGHT THERE ON WHAT WOULD BE

CONSIDERED THE LEVEE. A. YES, SIR. THIS GRAVEL ROAD RIGHT HERE IS THE LEVEE

(INDICATING). Q. NOW, AFTER YOU ARRIVED AND RECEIVED INFORMATION FROM

AGENT LAMBERT, WHERE DID YOU GO? A. I BEGAN RIDING ON THAT LEVEE ROAD TO THE NORTH IN THE

DIRECTION THAT HE INDICATED. Q. A. AND WHAT HAPPENED WHEN YOU BEGAN RIDING NORTH? AS I ROUNDED THE CORNER, I COULD SEE AN INDIVIDUAL AND JUST AFTER I SAW HIM, I OBSERVED THAT AND IT LOOKED LIKE HE WAS

RUNNING NORTHBOUND.

HE HAD DROPPED TO THE GROUND.

HIDING IN SOME TUMBLEWEEDS OR SOME BRUSH THAT WAS LAYING RIGHT THERE. Q. A. WHAT DID YOU DO WHEN YOU OBSERVED HIM IN THE TUMBLEWEEDS? MY LIGHTS WERE ON HIM. WITH THE AID OF MY LIGHTS, I WAS

ABLE TO SEE THROUGH THE BRUSH AND SEE SOME CLOTHING AND STUFF LAYING THERE. IN THE BRUSH. Q. A. WHAT DID YOU DO AT THAT POINT? I BEGAN TO GET OFF MY ATV. I ACTUALLY TOOK ONE STEP OFF, IT TURNED OUT TO BE AN INDIVIDUAL LAYING THERE

AND THE INDIVIDUAL JUMPED UP AND BEGAN RUNNING TO THE WEST AND STOPPED, WENT ACROSS THE LEVEE, AND STARTED ANGLING SOUTH/SOUTHWEST. Q. HE HAD ACTUALLY RAN BACK UP TO THE GRAVEL ROAD FROM THE

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FENCE AREA? A. Q. A. Q. A. YES, SIR. THEN INTO THE FIELD, YOU SAID? YES. WHAT DID YOU DO WHEN YOU OBSERVED THAT? WHEN HE FIRST JUMPED UP, I YELLED "HEY, U.S. BORDER WHERE ARE YOU GOING? STOP." AND HE CONTINUED AND

PATROL.

DID NOT RESPOND AT ALL TO MY COMMANDS. Q. A. SO DID YOU THEN BEGIN TO PURSUE THAT INDIVIDUAL? YES. I GOT BACK ON MY ATV AND PURSUED HIM TO THE FIELD

TO THE WEST/SOUTHWEST. Q. A. WHAT HAPPENED WHEN YOU PURSUED HIM INTO THE FIELD? I WAS ABLE TO QUICKLY CATCH UP WITH HIM. AS I STARTED TO

GET OFF AND GRAB AHOLD OF HIM, WE COLLIDED WITH EACH OTHER. WHETHER HE TURNED MY DIRECTION OR BECAUSE OF THE TERRAIN, I'M NOT SURE. BUT HE MADE CONTACT WITH THE RIGHT -- I'M SORRY --

THE LEFT FRONT FENDER OF MY ATV, TRIPPED UP, AND FELL. Q. A. HIM. Q. AT THAT POINT WERE YOU ABLE TO LOOK AT HIM AND OBSERVE WHAT HAPPENED AFTER THAT? I JUMPED ON MY ATV AND DETAINED HIM, PUT HANDCUFFS ON

THIS FELLOW? A. Q. A. YES, SIR. DID YOU THEN INTERACT WITH HIM? YES, SIR, I DID. I ASKED HIM FIRST IF HE WAS OKAY, IF HE

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NEEDED MEDICAL ATTENTION, AND WHY HE WAS RUNNING. WHY HE WAS RUNNING. Q. A. WHAT HAPPENED AFTER YOU HAD THAT INTERACTION?

I ASKED HIM

HE TOLD ME THAT HE WAS OKAY, THAT HE DIDN'T NEED MEDICAL

ATTENTION, THAT I HAD RUN OVER HIM AND THAT HIS LEG WAS INJURED BUT THAT HE WAS OKAY. I ASKED HIM IF HE WAS WELL AT THIS POINT, I'D SEEN MY

ENOUGH TO WALK OVER TO THE LEVEE.

PARTNER WITH THE OTHER TWO INDIVIDUALS WALKING NORTH ALONG THE LEVEE. Q. A. Q. WAS HE OKAY ENOUGH TO WALK? YES, SIR, HE WAS. WHAT LANGUAGE WERE YOU USING WHILE YOU WERE INTERACTING

WITH HIM? A. BOTH SPANISH AND ENGLISH. I STARTED OFF A LITTLE BIT IN

SPANISH AND THEN NOTICED THAT HE SPOKE ENGLISH AND UNDERSTOOD ENGLISH AND THEN SWITCHED OVER TO ENGLISH. Q. AND THE INDIVIDUAL THAT YOU APPREHENDED IN THE EARLY

MORNING HOURS OF OCTOBER 15TH, 2007, DO YOU SEE HIM SITTING IN THE COURTROOM TODAY? A. Q. YES, SIR, I DO. CAN YOU PLEASE INDICATE FOR THE COURT BY DESCRIBING WHERE

HE'S SITTING AND POINT TO HIM. A. YES, SIR. HE'S SITTING OVER THERE NEXT TO DEFENSE COUNSEL AND IN BETWEEN DEFENSE COUNSEL AND THE INTERPRETER.

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THE COURT:

THE RECORD WILL SHOW THAT AGENT MILLER

HAS IDENTIFIED MR. MARTINEZ. MR. BLANKENSHIP: BY MR. BLANKENSHIP: Q. AFTER THAT INTERACTION IN THE FIELD, YOU ASKED HIM IF HE THANK YOU, YOUR HONOR.

WAS ABLE TO WALK. WHAT DID HE DO AFTER YOU ASKED HIM IF HE COULD WALK BACK UP TO THE LEVEE ROAD? A. WE BOTH WALKED TO THE LEVEE ROAD. I FOLLOWED HIM ON MY

ATV WHILE HE WALKED, AND WE MET UP WITH AGENT LAMBERT AND THE OTHER TWO OTHER INDIVIDUALS THAT HE HAD APPREHENDED. Q. THE AREA THAT YOU SAID THAT YOU WERE TRYING TO APPREHEND

OR CHASING THE DEFENDANT, IS THAT LOCATED OR INDICATED ON GOVERNMENT'S EXHIBIT 2A? A. YES, SIR. IT'S KIND OF HARD TO SEE FROM HERE BECAUSE THE

LEVEE ITSELF FROM THIS PICTURE OBSCURES, BUT THERE'S A BRUSH LINE HERE (INDICATING) AND THEN A FIELD -- A LIGHT-BROWN SANDY AREA. IT WAS IN THIS LIGHT-BROWN SANDY AREA VERY CLOSE TO THE

LEVEE, MAYBE 30 OR 40 YARDS TO THE WEST OF THE LEVEE. Q. SO THAT WOULD HAVE BEEN -- ON GOVERNMENT'S EXHIBIT 2A,

THE ROAD ACTUALLY TURNS TO THE NORTH, AND IT WOULD HAVE BEEN ON THE WEST SIDE OF THAT ROAD? A. Q. YES. YOU HAD TO PURSUE HIM FROM THE EAST, OVER THE ROAD, AND

ONTO THE WEST TO THE FIELD?

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A. Q.

YES. AFTER YOU GOT BACK UP TO THE LEVEE ROAD, WERE YOU THEN

ABLE TO MEET UP WITH AGENT LAMBERT? A. YES. I MET UP WITH AGENT LAMBERT, AND I TOLD HIM ABOUT

THE CIRCUMSTANCES OF THE ARREST; THAT THE INDIVIDUAL WAS CLAIMING THAT I HAD RUN OVER HIM AND THAT I KNEW THAT I HAD MADE CONTACT WITH MY ATV WITH HIM. AGENT LAMBERT THEN ASKED

HIM IF HE NEEDED MEDICAL ATTENTION, IF HE NEEDED THE PARAMEDICS OR AN EMT TO COME AND CHECK HIM OUT. Q. A. Q. A. DID YOU OBSERVE HIS RESPONSE TO THAT QUESTION? YES, SIR. WHAT DID HE RESPOND? HE SAID, "IF I CAN GO BACK TO MEXICO RIGHT NOW, I DON'T

NEED ANY MEDICAL ATTENTION." MR. DEMIK: THE COURT: BY MR. BLANKENSHIP: Q. A. WHAT HAPPENED AFTER THAT? I EXPLAINED TO HIM THAT THAT'S NOT THE WAY THAT IT WORKS. AND IF HE WAS FOUND TO BE IN OBJECTION; HEARSAY. OVERRULED.

THAT HE HAD BEEN APPREHENDED.

THE COUNTRY ILLEGALLY, THAT HE WOULD HAVE TO GO TO THE STATION FOR FURTHER PROCESSING. Q. AND AFTER THIS, DID YOU THEN ASK HIM SOME QUESTIONS

RELATED TO HIS NATIONALITY AND CITIZENSHIP? A. YES, SIR, I DID.

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Q. A.

WHAT DID YOU ASK HIM? I ASKED HIM WHAT COUNTRY HE WAS A CITIZEN, TO WHICH HE AND THEN I ASKED IF HE HAD ANY DOCUMENTS

REPLIED "MEXICO."

THAT WOULD ALLOW HIM TO ENTER OR BE IN THE COUNTRY LEGALLY, TO WHICH HE ANSWERED, NO, THAT HE DIDN'T HAVE ANY PAPERS. THEN I PROCEEDED TO ASK HIM HIS NAME. Q. A. DID HE ACTUALLY TELL YOU HIS NAME? YES, SIR. HE GAVE ME THE NAME JOSE PEREZ-RUIZ. OBJECTION; 3501, HEARSAY. OVERRULED. AND

MR. DEMIK: THE COURT: BY MR. BLANKENSHIP: Q. A.

AFTER THAT INTERACTION, WHAT HAPPENED? AFTER THAT INTERACTION, THE TRANSPORT AGENT HAD ALREADY

BEEN CALLED FOR THE INDIVIDUALS THAT AGENT LAMBERT HAD APPREHENDED. SO WHILE WE WERE DOING THIS INTERVIEW, THE

TRANSPORT AGENT HAD SHOWED UP WITH HIS VEHICLE, AND HE WAS SEARCHED FOR ANY KIND OF WEAPONS OR CONTRABAND AND THEN PLACED IN THE VEHICLE AND TAKEN TO THE IMPERIAL BEACH STATION FOR FURTHER PROCESSING. Q. NOW, AFTER THE TRANSPORT WAS ARRANGED AND MADE TO THE

IMPERIAL BEACH BORDER PATROL STATION, DID YOU HAVE ANY FURTHER INVOLVEMENT IN THE INVESTIGATION OF THIS INCIDENT AND THE ARREST? A. Q. YES. I COMPLETED A REPORT FOR THIS CASE.

DID YOU HAVE ANY OTHER INVOLVEMENT?

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A.

NO, SIR. MR. BLANKENSHIP: THE COURT: YES. YOUR HONOR, I HAVE NO FURTHER MAY I HAVE JUST ONE MOMENT?

MR. BLANKENSHIP: QUESTIONS. THE COURT: MR. DEMIK: THE COURT: MR. DEMIK:

YOU MAY CROSS-EXAMINE, MR. DEMIK. MAY I HAVE ONE SECOND, YOUR HONOR? OF COURSE. YOUR HONOR, I'D LIKE FOR THE RECORD TO

RENEW THE OBJECTIONS I MADE PREVIOUSLY, SPECIFICALLY WITH REGARD TO THE COMPETENCY ISSUE. THE COURT: MR. DEMIK: OVERRULED. THANK YOU. CROSS-EXAMINATION BY MR. DEMIK: Q. AGENT, I WANT TO ASK YOU FIRST A LITTLE BIT THE AREA

CALLED THE ELBOW. A. Q. A. Q. YES, SIR. THAT'S IN GOVERNMENT'S EXHIBIT -- I BELIEVE IT'S 1A. YES, SIR. THAT'S -- IT'S CALLED AN ELBOW BECAUSE IT'S SHAPED --

LOOKS LIKE IN GOVERNMENT'S 1A IT'S SORT OF SHAPED LIKE THE CURVATURE OF AN ELBOW? A. Q. YES, SIR. IF YOU COULD LOOK AT IT WITH ME, THAT AREA TO THE SOUTH

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AND TO THE WEST, THAT'S PRETTY MUCH FIELDS; RIGHT? A. YES, SIR. IT'S THE TIJUANA RIVER CHANNEL, AND WE KEEP IT

PLOWED TO BETTER AID OUR ABILITIES TO PATROL THAT AREA AND SEE INTO THAT AREA. Q. YOU KEEP IT PLOWED OF THINGS LIKE BRUSHES AND

TUMBLEWEEDS? A. Q. A. Q. YES, SIR. THAT'S SO PEOPLE CAN'T HIDE THERE; RIGHT? YES, SIR. THERE'S ALSO FLOODLIGHTS THAT SHINE ON THAT AREA;

CORRECT? A. YES, SIR. THERE ARE DARK SPOTS, BUT THERE ARE

FLOODLIGHTS NORTH OF THE NORTH LEVEE THERE THAT SHINE INTO THAT AREA. Q. A. Q. THEY SHINE INTO THE FIELD AREA? YES, SIR. AND AT THAT TIME YOU ARRESTED MR. MARTINEZ, IT WAS ABOUT

5:30 A.M. A. Q. A. Q. A. Q. YES, SIR. I BELIEVE 5:20.

AND THOSE FLOODLIGHTS WERE ON? YES, SIR, THEY WERE. IT'S ALSO SORT OF SUNRISE ABOUT THAT TIME; RIGHT? YES, IT'S BEGINNING TO GET LIGHT. ON GOVERNMENT'S EXHIBIT 1A, YOU REFER TO THE YELLOW LINE. THAT'S THE INTERNATIONAL BORDER BETWEEN MEXICO AND

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THE UNITED STATES? A. JUST A LITTLE BIT TO THE NORTH OF THAT LINE. YOU CAN SEE

THE LINE GOES ACROSS THE HOUSES IN THAT NEIGHBORHOOD, AND THEN THERE'S A LIGHT LOOKING -- IT LOOKS LIKE A ROAD THAT GOES INTO MEXICO, AND THEN DIRECTLY TO NORTH OF THAT ROAD IS THE PRIMARY FENCE. Q. AND THOSE HOUSES, THAT'S BECAUSE THERE IS A RESIDENTIAL

AREA ON THE MEXICAN SIDE OF THE FENCE; RIGHT? A. Q. A. Q. A. Q. THAT IS CORRECT. AND THAT RESIDENTIAL AREA HAS HOUSES; RIGHT? YES. PEOPLE LIVE THERE? YES, SIR. OKAY. AND THERE IS ONE FENCE BEFORE THE -- I'M SORRY.

REMIND ME, WHAT'S THE WHITE FENCE? A. Q. IT'S CALLED A BOLLARD FENCE. THANK YOU. BEFORE THE BOLLARD, THERE'S A FENCE ON THE MEXICAN SIDE; RIGHT? A. IT'S ACTUALLY THE ACTUAL DIVIDING LINE. THE

INTERNATIONAL BOUNDARY IS WHERE THAT FENCE LIES. Q. A. Q. AND AFTER THAT FIRST FENCE, THEN THERE'S THE BOLLARD? YES, SIR. HOW MANY YARDS NORTH DO THOSE FIELDS GO IN GOVERNMENT'S

EXHIBIT A FROM THE BOLLARD AS FAR NORTH AS THAT FIELD GOES?

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HOW FAR APPROXIMATELY IS THAT, WOULD YOU SAY? A. TO THE ELBOW AREA, IT'S APPROXIMATELY 200 TO 250 YARDS.

BUT THEN THAT FIELD AREA THERE, AS YOU CAN SEE, WHERE IT TURNS NORTH ON THE ELBOW, IT EXTENDS NORTH PROBABLY ANOTHER 800 METERS, APPROXIMATELY A HALF-MILE. Q. AND THAT'S THE AREA THAT WE'RE TALKING ABOUT THAT'S

FIELDS; RIGHT? A. YES, SIR. JUST -- PROBABLY ABOUT 50 TO 75 YARDS NORTH OF

THE ELBOW AND ABOUT 30 TO 40 YARDS WEST OF THE LEVEE IS WHERE THE APPREHENSION WAS MADE IN THE FIELD. Q. A. Q. THERE'S NO BUILDINGS IN THAT AREA; CORRECT? NO, NOT IN THE FIELDS. IT'S BASICALLY ROCKS AND I THINK YOU REFERRED TO A

LIGHT-BROWN SANDY AREA? A. YES, SIR. IT'S A FIELD WHERE THEY GROW SOD. AND WHEN

THERE'S NO SOD THERE, WHEN THEY PLOW IT, IT'S JUST THE FRESH DIRT. Q. I'M GOING TO SHOW YOU WHAT I'M MARKING AS GOVERNMENT'S I'M GOING TO ALLOW GOVERNMENT COUNSEL

EXHIBITS A THROUGH F.

TO LOOK AT THOSE AND ASK YOU IF YOU RECOGNIZE THEM JUST TO HAVE SOME RECORD. THAT'S ALL RIGHT. A. Q. A. YES, SIR. WHAT DO DEFENDANT'S EXHIBITS A THROUGH F DEPICT? IT SHOWS AREAS IN AND AROUND THE ELBOW AREA. SO I'LL HAND THEM ALL TO YOU AT ONCE, IF IF YOU COULD JUST TAKE A LOOK AT THOSE.

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Q.

AND ARE THOSE PHOTOGRAPHS THE SAME GENERAL AREA WHERE YOU

APPREHENDED MR. MARTINEZ? A. YES, SIR. MOST OF THEM ARE LOOKING BACK TO THE SOUTH. I

WAS JUST A LITTLE BIT NORTH OF THIS AREA. Q. OKAY. AND IT'S SAFE TO SAY THE AREA THAT'S NORTH OF

THERE IS THE SAME TERRAIN? A. YES, SIR. IT'S PLOWED FIELDS. THAT'S THE ONLY

DIFFERENCE, WHERE THIS IS NOT REGULARLY MAINTAINED FOR GROWING SOD AND STUFF, THE OTHER AREA. SO WHERE YOU SEE THE TIRES AND

THE TRASH, THERE'S NOT THAT KIND OF AREA, THAT KIND OF DEBRIS IN THE AREA WHERE I MADE THE APPREHENSION. Q. SO IF WE LOOK BACK TO GOVERNMENT'S EXHIBIT 1A, THOSE

PHOTOGRAPHS ARE OF THE SORT OF ROCKY AREA THAT RUNS EAST TO WEST; RIGHT? A. Q. YES, SIR. AND THE AREA THAT YOU WERE JUST REFERRING TO IS THAT AREA

A LITTLE BIT NORTH, WHICH ON GOVERNMENT'S 1A ALMOST LOOKS LIKE FIELDS? A. YES. THAT GREEN FIELD -- THE FURTHEST SOUTH GREEN FIELD

THERE IS ACTUALLY WHERE I MADE THE APPREHENSION INSIDE THAT FIELD THERE. NO SOD THERE. Q. OKAY. BUT AT THE TIME IT HAD BEEN PLOWED. SO IT WAS ALL BROWN AND SANDY. THERE WAS

I SEE. NOW, COULD YOU GET GOVERNMENT'S EXHIBIT 1A. I WANT

TO MAKE SURE WE HAVE THAT ON THE RECORD.

COULD YOU CIRCLE

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THAT GREEN FIELD. A. Q. NO, SIR.

DID YOU ALREADY DO IT?

COULD YOU CIRCLE THE GREEN FIELD ON GOVERNMENT'S 1A TO

SHOW WHERE YOU'RE TALKING ABOUT. A. Q. A. Q. YES, SIR. COULD YOU PUT AN A IN THAT CIRCLE FOR APPREHENSION. YES, SIR. THANK YOU. SO THIS AREA, THE ONE THAT YOU CIRCLED A, THAT IS WHAT YOU SAID WAS PLOWED FOR SOD; RIGHT? A. Q. YES, SIR. SO IT'S ACTUALLY LESS ENCUMBERED THAN THE DEFENDANT'S A

THROUGH F? A. Q. YES. THERE'S NOT AS MUCH DEBRIS AND THAT KIND OF -I WAS LOOKING FOR A

THAT'S WHAT I MEANT BY "ENCUMBERED."

BETTER WORD. THERE'S NOT THAT MUCH TRASH, TUMBLEWEED, BRUSHES? A. Q. CORRECT. THERE'S LESS OF THAT WHERE MR. MARTINEZ WAS

APPREHENDED? A. Q. YES, SIR. I WANT TO ASK YOU A LITTLE BIT ABOUT WHEN YOU APPREHENDED

MR. MARTINEZ. YOU WROTE A REPORT IN THIS CASE? A. YES, I DID.

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Q. A. Q. A. Q.

AND THIS WAS A FORM I-213? YES, SIR. AND IT WAS FOUR PAGES LONG? YES, SIR. IN YOUR REPORT, YOU STATE THAT MR. MARTINEZ WAS RUNNING

IN A ZIGZAGGING PATTERN? A. Q. YES, SIR. YOU ALSO MADE REFERENCE, I THINK AT LEAST THREE TIMES, TO

HIM RUNNING IN AN ERRATIC COURSE? A. Q. A. Q. YES, SIR. YOU USED THE WORD "ERRATIC"? YES, SIR. I WANT YOU TO ASK YOU A LITTLE BIT ABOUT THAT. SO HE WASN'T RUNNING IN A STRAIGHT LINE? A. Q. A. NO, SIR, IT WASN'T A STRAIGHT LINE. HE WAS RUNNING IN AN UNUSUAL MANNER? I MEAN, IT WASN'T LIKE HE WAS RUNNING CRAZILY OR I WAS LIKE HE WAS TRYING TO AVOID BEING AS I WAS PURSUING HIM, HE WAS CUTTING MORE AND THEN AS

ANYTHING.

APPREHENDED.

SOUTHWEST, AND THEN HE WOULD CUT BACK SOUTHEAST.

I GOT CLOSER, HE WAS TRYING TO GET AWAY, IS WHAT IT APPEARED TO BE. Q. A. Q. SO WHEN YOU FIRST ENCOUNTERED HIM, HE WAS HEADED NORTH? YES, SIR. AND THEN WHEN HE WAS RUNNING IN THE ZIGZAG PATTERN, HE

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WAS RUNNING SOUTH AND SOUTHWEST? A. Q. A. Q. SOUTH, SOUTHWEST, SOUTHEAST. IN VARIOUS DIRECTIONS? YES, SIR. WHEN YOU WERE ON YOUR ATV AND YOU COLLIDED, YOU HAD

SLOWED DOWN; RIGHT? A. YES, SIR. I BEGAN TO SLOW DOWN BECAUSE I WAS GETTING

CLOSE TO HIM, AND I WAS GOING TO JUMP OFF AND EITHER GIVE HIM A PUSH OR TRY TO GET HIM TO WHERE I COULD GET HIM DOWN AND GET SOME HANDCUFFS ON HIM AND DO MY JOB. Q. AND BECAUSE HE WAS RUNNING ERRATICALLY, YOUR ATV COLLIDED

WITH HIS LEG; RIGHT? A. Q. A. YES, SIR. IT'S LIKE HE RAN INTO YOU? YES, SIR. LIKE I SAID, I DON'T KNOW IF IT WAS BECAUSE OF

THE WAY HE WAS TURNING OR BECAUSE I WAS TRYING TO GET CLOSE TO HIM OR WHAT EXACTLY HAPPENED THERE. WITH THE FRONT FENDER OF MY VEHICLE. Q. OKAY. WHAT YOU'RE SAYING IS BECAUSE HE WAS RUNNING BUT HE DID MAKE CONTACT

ERRATICALLY, YOU'RE NOT SURE EXACTLY WHAT CAUSED THAT COLLISION? A. I'M ASSUMING THAT THAT'S WHAT CAUSED THE COLLISION,

BECAUSE HE WAS RUNNING ERRATICALLY, YES, SIR. Q. BECAUSE OF THE NATURE THAT HE WAS RUNNING IN THIS AREA,

IT LED HIM, IN FACT, TO COLLIDE WITH YOUR ATV?

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A. Q. A. Q.

YES, SIR. AND THE ATV IS HARD TO MISS? YES, SIR, I DID. THE FLOODLIGHTS ARE ON BY THIS TIME, AND THE LIGHT IS YOU HAD YOUR LIGHTS ON?

ALMOST UP. HE COULD SEE YOU; RIGHT? A. YES, SIR. HE WAS RUNNING AWAY FROM ME. HE TURNED BACK

LOOKING OVER HIS SHOULDER, BUT -Q. AT ONE POINT WHEN HE ZIGZAGGED, THAT'S WHEN HE RAN INTO

YOUR ATV? A. Q. A. YES, SIR. THEN HE STOPPED; RIGHT? YES, SIR. IT KIND OF TRIPPED HIM UP WHEN HIS LEG HIT THE

FENDER. Q.

IT TRIPPED HIM UP, AND HE FELL TO THE GROUND.

AND YOUR REPORT STATES THAT HE WAS LYING IN A PRONE

POSITION? A. Q. A. Q. A. Q. YES, SIR. HE'S FLAT ON THE GROUND? YES, SIR. WHAT YOU DID THEN, YOU PUT HANDCUFFS ON HIM; RIGHT? YES, SIR, I DID. AND THEN YOU BROUGHT HIM FROM THE A CIRCLE WHERE YOU

APPREHENDED HIM OVER TO THE ACTUAL POINT OF THE ELBOW? A. NO, NOT THE ELBOW. MY PARTNER HAD BEGAN WALKING THE SO HE WAS JUST 30

OTHER TWO INDIVIDUALS NORTH ON THE LEVEE.

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TO 40 YARDS AWAY ON THE LEVEE. Q. A. Q. A. Q. GOING NORTH ON THAT LEVEE ROAD? YES, SIR. OKAY. AND THAT'S A SHORT DISTANCE; RIGHT?

YES, SIR. AND WHEN YOU BROUGHT HIM WITH THE OTHER TWO LET ME BACK UP.

INDIVIDUALS -- NO, I'M SORRY.

AFTER YOU HANDCUFFED HIM, YOU ASKED HIM WHY HE WAS RUNNING; RIGHT? A. Q. A. Q. YES, SIR. DID HE ANSWER YOU? NO, I DON'T REMEMBER HIM ANSWERING THAT QUESTION. AND THEN WHEN YOU TOOK HIM OVER WITH THE OTHER TWO

INDIVIDUALS, HE ASKED YOU IF YOU WOULD RELEASE HIM; RIGHT? A. NO, SIR. I HAD ASKED HIM -- I TOLD MY SUPERVISOR WHAT

HAD HAPPENED, AND THAT'S HOW MY SUPERVISOR ASKED HIM IF HE NEEDED MEDICAL ATTENTION. AGAIN, THAT WAS THE SECOND TIME I'D

ASKED HIM IN THE FIELD, AND THEN MY BOSS HAD ASKED HIM ONCE WE GOT TO THE LEVEE. Q. A. SO AT THE LEVEE, HE ASKED "WILL YOU RELEASE ME?" YES, SIR. THEN WHEN HE SAID, "IF I CAN RETURN TO MEXICO THEN I DO NOT

RIGHT NOW, I'LL GO BACK TO MEXICO RIGHT NOW. NEED ANY MEDICAL ATTENTION." Q. A. SO "IF YOU RELEASE ME"? YES, SIR.

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Q. A. Q.

YOU SAID, "WE AREN'T GOING TO RELEASE YOU"? THAT'S WHAT I SAID, "THAT'S NOT HOW IT WORKS." AND AFTER THAT POINT, YOU DID WHAT'S CALLED FIELD

QUESTIONING; RIGHT? A. Q. A. YES, SIR. YOU ASKED HIM QUESTIONS; RIGHT? YES, SIR. HIS CITIZENSHIP, HIS NAME, WHERE HE WAS BORN,

MOTHER AND FATHER. Q. A. Q. A. Q. A. Q. IMMIGRATION QUESTIONS? YES, SIR. TO DETERMINE HIS IMMIGRATION STATUS? YES, SIR. AND YOU ALSO ASKED HIM IF HE HAD ANY PAPERS? YES, SIR. OKAY. I DON'T KNOW IF YOU FOUND OUT, BUT LATER HE WAS

TAKEN TO THE HOSPITAL; RIGHT? A. YES, SIR. I BELIEVE AFTER WE GOT TO THE STATION AND IT

WAS DETERMINED THAT THERE HAD TO BE A MORE EXTENSIVE REPORT DONE, THEN HE SAID HE WAS GOING TO NEED TO SEE THE DOCTOR FOR HIS LEG. Q. A. Q. AND HE DID SEE A DOCTOR? YES, SIR. THAT DOCTOR DIAGNOSED HIM WITH A SPRAINED ANKLE? MR. BLANKENSHIP: THE COURT: OBJECTION. IT'S

THE OBJECTION'S SUSTAINED.

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HEARSAY. BY MR. DEMIK: Q. ARE YOU AWARE OF ANY MEDICAL INJURIES THAT MR. MARTINEZ

WAS DIAGNOSED WITH AT THE HOSPITAL? A. NO. JUST THE NEXT DAY, I INQUIRED AS TO WHAT WAS GOING

ON WITH THE CASE AND WAS ADVISED BY ANOTHER AGENT -MR. BLANKENSHIP: THE COURT: BY MR. DEMIK: Q. YOU SAID A MORE IN-DEPTH REPORT. DID YOU WRITE ANY OTHER REPORTS IN THIS CASE? A. NO, SIR. JUST THE 213 REPORT AND THE PAPERWORK OBJECTION.

THE OBJECTION'S SUSTAINED.

ASSOCIATED WITH THE A FILE. Q. A. WHAT PAPERWORK IS THAT? THERE IS AN A-71, I-94, 9205. JUST THOSE PAPERS THAT ARE

REQUIRED FOR THE A FILE, SIR. Q. A. AND YOU COMPLETED THOSE? YES, SIR, I DID. MR. DEMIK: FOR THE PAUSE. THE WITNESS: YES, SIR. IF YOU CAN GIVE ME ONE SECOND. SORRY

(PAUSE IN PROCEEDINGS) BY MR. DEMIK: Q. I WANT TO ASK YOU, IN YOUR OPINION, THIS IS A DIFFICULT

AREA -- IN YOUR TRAINING AND EXPERIENCE, THIS WOULD BE A

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DIFFICULT AREA FOR SOMEONE TO ILLEGALLY ENTER THE UNITED STATES. WOULD THAT BE A FAIR STATEMENT? A. BECAUSE OF THE FENCES, YES, SIR. THERE ARE MORE FENCES

IN THIS AREA THAN THERE ARE IN OTHER AREAS. Q. A. Q. AND THERE ARE ALSO THE FLOODLIGHTS; RIGHT? CORRECT, SIR. AND THERE'S ALSO THE FACT THAT THIS IS UP TO, LIKE, HALF

A MILE OF JUST FIELDS? A. Q. YES, SIR. THAT COMBINED WITH MR. MARTINEZ'S ERRATIC BEHAVIOR, WOULD

YOU SAY HIS CHANCES OF ENTERING THE UNITED STATES ILLEGALLY WERE SLIM TO NONE? MR. BLANKENSHIP: THE COURT: OBJECTION, YOUR HONOR.

ARE YOU ABLE TO QUANTIFY HOW LIKELY IT

IS SOMEBODY CAN GET IN AT ANY GIVEN TIME AT A CERTAIN PLACE ALONG THE BORDER? THE WITNESS: A LOT OF THAT HAS TO DO WITH CHANCE

AND LUCK BECAUSE WITH THE E SCOPE OPERATOR AND THE DIFFERENT INDIVIDUALS -THE COURT: WOULD YOU BE GUESSING IF YOU WERE TO TRY

TO GIVE MR. DEMIK SOME ODDS ON HOW LIKELY IT IS? THE WITNESS: THE COURT: GUESS. YES, SIR. IT WOULD JUST BE -HE CAN'T

THE OBJECTION IS SUSTAINED.

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BY MR. DEMIK: Q. HOW LONG TOTAL WAS YOUR INTERACTION WITH MR. MARTINEZ,

WOULD YOU SAY, AS FAR AS CONVERSATION, WORDS? A. IN THE FIELD, PROBABLY NO LONGER THAN 15 MINUTES WE WERE

THERE. Q. AND YOU STATED THAT YOU SPOKE TO HIM IN BOTH ENGLISH AND

SPANISH? A. Q. YES, SIR. WHICH APPEARED TO BE BETTER TO YOU, HIS ENGLISH OR HIS

SPANISH? A. Q. HE SEEMED TO UNDERSTAND ME BETTER IN ENGLISH. AND THAT'S BECAUSE WHEN YOU WERE SPEAKING ENGLISH, YOU

WERE ASKING HIM QUESTIONS; RIGHT? A. Q. A. YES, SIR. AND MOST OF HIS REPLIES WERE "YES"? WELL, WHENEVER IT WENT TO THE MEDICAL TREATMENT QUESTION,

IT WAS, NO, HE DIDN'T NEED MEDICAL TREATMENT IF HE COULD BE RETURNED TO MEXICO. QUESTIONS. AND THEN TO HIS NAME, HE ANSWERED THOSE

AND HIS NATIONALITY, MEXICO. MR. DEMIK: THE COURT: NO FURTHER QUESTIONS, YOUR HONOR. ANYTHING ELSE? JUST BRIEFLY, YOUR HONOR.

MR. BLANKENSHIP:

REDIRECT EXAMINATION BY MR. BLANKENSHIP: Q. AGENT MILLER, DURING YOUR INTERACTION WITH THE DEFENDANT,

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YOU SPOKE IN THE ENGLISH LANGUAGE? A. Q. YES, SIR, I DID. WHEN YOU WERE INTERACTING WITH THE DEFENDANT AND YOU

ASKED HIM QUESTIONS, DID HE GIVE APPROPRIATE RESPONSES TO YOUR QUESTIONS? A. YES, SIR. AS I SAID, IT SEEMED LIKE HE BETTER UNDERSTOOD

ME IN ENGLISH THAN MY SPANISH. MR. DEMIK: THE COURT: OPINION. THE WITNESS: WHEN I ORIGINALLY MADE THE ARREST, I OBJECTION; SPECULATION. OVERRULED. I THINK THAT'S A PROPER LAY

WAS SPEAKING TO HIM IN SPANISH. AND THEN HE SAID IN ENGLISH "HE RAN OVER MY LEG." I WAS, LIKE, "OH, THIS GUY SPEAKS ENGLISH." I BEGAN SPEAKING TO HIM IN ENGLISH. HE SEEMED TO UNDERSTAND AND ANSWER THOSE QUESTIONS JUST FINE IN ENGLISH. BY MR. BLANKENSHIP: Q. A. Q. A. Q. A. Q. WERE YOU ABLE TO OBSERVE HIM FACE TO FACE? YES, SIR. WERE YOU ABLE TO OBSERVE HIS BEHAVIOR? YES, SIR. WERE YOU ABLE TO OBSERVE HIS SPEECH PATTERNS? YES, SIR. HAVE YOU INTERACTED WITH PEOPLE ALONG THE BORDER ON SO THEN

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PREVIOUS OCCASIONS? A. Q. YES, SIR, MANY TIMES. WERE YOUR INTERACTIONS WITH THIS INDIVIDUAL IN ANY WAY

SUSPECT? MR. DEMIK: THE COURT: BY MR. BLANKENSHIP: Q. A. Q. WERE YOU ABLE TO COMMUNICATE WITH HIM? YES, SIR. WAS THAT COMMUNICATION IN ANY WAY MARKEDLY DIFFERENT THAN OBJECTION; VAGUE. SUSTAINED.

TYPICAL COMMUNICATION WITH OTHER INDIVIDUALS? A. Q. NO, SIR. YOU HAD INDICATED THAT HE WAS RUNNING IN AN ERRATIC

MANNER? A. Q. YES, SIR. BE SPECIFIC. WHAT ARE YOU TALKING WHEN YOU'RE SAYING, "ERRATIC"? A. YES, SIR. PERHAPS "ZIGZAG" IS NOT THE BEST DESCRIPTION

BECAUSE HE WASN'T RUNNING WILDLY BACK AND FORTH ALL OVER THE PLACE. IT SEEMED LIKE HE WAS TRYING TO GET AWAY FROM MY ATV. AND THEN AS I WOULD CLOSE

SO HE WOULD RUN TO THE SOUTHWEST.

IN TO THE SOUTHWEST, THEN HE WOULD CUT BACK TO THE SOUTHEAST. AS I TURNED TO MEET HIM THERE, HE WOULD KIND OF TURN BACK MORE TO THE SOUTH. RUNNING. SO THAT'S HOW -- MORE OF HIS PATTERN OF

AND AS I CLOSED IN AND GOT CLOSER, I WAS RIGHT ON

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HIS HEEL, AND HE STARTED TO TURN. WAS MADE. Q.

AND THAT'S WHEN THE CONTACT

YOU HAD INDICATED THAT THE AREA OF THE APPREHENSION WAS A

PLOWED AREA? A. Q. A. Q. YES, SIR. WAS THE SOIL SOFT? YES, SIR, VERY SOFT. CAN YOU DESCRIBE THE EFFECT OF HAVING SOFT -- WHAT THE

SOFT SOIL EFFECT IS ON YOUR ATV OPERATIONS. A. YES, SIR. FOR THE ATV, IT SLOWS THE ATV DOWN QUITE A BIT BECAUSE YOU'RE BOGGING DOWN IN THE SOFT SAND. OF -- THERE IS NO SHARP TURNING. BIT LONGER, TO TURN AND TO STOP. ALSO, ANY KIND

EVERYTHING TAKES A LITTLE SO IT SLOWS THINGS DOWN

QUITE A BIT ON THE ATV, THE REACTIONS AND THE PERFORMANCE OF THE VEHICLE. Q. WHEN YOU WERE TRYING TO CLOSE IN ON THE DEFENDANT, DID

THAT SOFT SAND AFFECT YOUR ABILITY TO ACTUALLY ACCOMPLISH THAT? A. YES, SIR. ABSOLUTELY. THAT'S WHY HE WAS SO EFFECTIVE

WHEN HE WAS MAKING A CUT TO THE SOUTHWEST OR A CUT TO THE SOUTHEAST. IT WOULD TAKE ME A COUPLE SECONDS TO MAKE THE

CORRECTION TO CLOSE THE DISTANCE THAT HE HAD GAINED DURING THAT TIME. MR. BLANKENSHIP: I HAVE NOTHING FURTHER.

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THE COURT: MR. DEMIK:

MR. DEMIK, ANYTHING ELSE? BRIEFLY. RECROSS-EXAMINATION

BY MR. DEMIK: Q. THIS AREA THAT HE WAS TRYING TO GET AWAY FROM YOU, THAT'S

CLOSED IN BY AT LEAST TWO FENCES? A. TO THE EAST IN THE FIELD, YES. THERE'S METAL FENCES TO

THE EAST. FIELD.

TO THE WEST, IT'S JUST PROBABLY A HALF A MILE OF BACK TO THE SOUTH AGAIN

THERE IS NO FENCE THAT WAY.

IS THE BOLLARD FENCE, THE SECONDARY FENCE, AND THE PRIMARY FENCE. Q. A. Q. A. Q. SO WHAT BARRIERS ARE THERE TO THE WEST? TO THE WEST, THERE ARE NO BARRIERS. THERE'S MOUNTAINS THERE? NO, SIR. HOW DO YOU NORMALLY APPREHEND PEOPLE WHO HEAD WEST IN

THAT AREA? MR. BLANKENSHIP: THE COURT: OBJECTION, YOUR HONOR.

OVERRULED.

YOU MAY ANSWER. THE WITNESS: YES, SIR. INDIVIDUALS THAT HEAD WEST,

USUALLY THE SAME WAY AS WE APPROACH MOST INDIVIDUALS, THEY GIVE UP. THEY SEE THEY CAN'T GET AWAY FROM A VEHICLE. SO

THEY PUT THEIR HANDS UP AND THEY STOP RUNNING AND COMPLY WITH OUR COMMANDS AS WE GET CLOSE.

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BY MR. DEMIK: Q. SO WHEN YOU SAY THAT THEY REALIZE THAT THEY CAN'T GET

AWAY FROM A VEHICLE, THAT'S BECAUSE IT'S A WIDE OPEN SPACE; RIGHT? A. YES, SIR, BECAUSE AN ATV IS FASTER THAN AN INDIVIDUAL

RUNNING IN MOST CASES, IN MOST AREAS. MR. DEMIK: THE COURT: NO FURTHER QUESTIONS. ANYTHING ELSE? NOTHING FURTHER, YOUR HONOR.

MR. BLANKENSHIP: THE COURT:

AGENT MILLER, YOU MAY STAND DOWN.

YOU'RE EXCUSED AS A WITNESS. THE WITNESS: THE COURT: MILLER. ANYTHING ELSE FOR THE RECORD, GENTLEMEN, BEFORE WE RECESS? MR. DEMIK: I DO, YOUR HONOR. YES, SIR. THIS CONCLUDES THE DEPOSITION OF AGENT

FIRST, I'D LIKE TO MAKE A MOTION UNDER 3501 TO EXCLUDE THE FIELD STATEMENTS BASED UPON VOLUNTARINESS AND MIRANDA. THE COURT: THE MOTION IS DENIED. THE MIRANDA THE

RIGHTS WERE NOT IN PLACE YET.

HE WAS NOT IN CUSTODY.

CIRCUMSTANCES AS EXPLAINED BY AGENT MILLER DON'T IMPLICATE VOLUNTARINESS TO ANY EXTENT THAT CAUSES ME TO THINK THE DEFENDANT'S STATEMENTS WERE THE PRODUCT OF UNFAIR PRESSURE OR

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Case 3:07-cr-03101-LAB

Document 80

Filed 05/19/2008

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FORCE. IT'S TRUE THAT THERE WAS A COLLISION, APPARENTLY, BETWEEN THE FRONT OF HIS ATV VEHICLE AND MR. MARTINEZ'S LEG. BUT THAT ALONE DOESN'T CAUSE ME TO THINK THAT MR. MARTINEZ WAS RESPONDING IN A COMPELLED MANNER TO ANY QUESTIONS THAT WERE PUT TO HIM. NOTHING IN THE CONTEXT OF INTERROGATION OF

MR. MARTINEZ HAS BEEN BROUGHT OUT IN THE QUESTIONING TODAY THAT COMPELS A CONCLUSION. ANYTHING ELSE? MR. DEMIK: NOT AT THIS TIME. NOTHING FROM THE GOVERNMENT, YOUR SO THE MOTION IS DENIED.

MR. BLANKENSHIP: HONOR. THE COURT:

WE'RE IN RECESS.

GOOD LUCK, AGENT MILLER. THE WITNESS. THANK YOU. --O0O--

I HEREBY CERTIFY THAT THE TESTIMONY ADDUCED IN THE FOREGOING MATTER IS A TRUE RECORD OF SAID PROCEEDINGS.

S/EVA OEMICK EVA OEMICK OFFICIAL COURT REPORTER

5-15-08 DATE

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