1 IN THE UNITED STATES DISTRICT COURT

 2 DISTRICT OF ARIZONA

 3

 4 United States of America CR-17-1791-TUC-JGZ(LAB)

 5 vs.

 6 Charles Burton Foster, 

 December 21, 2017

 7 Defendant. Tucson, Arizona 

________________________________

 8

 9 OFFICIAL TRANSCRIPT OF PROCEEDINGS

 10 HEARING ON CHANGE OF PLEA

 11 BEFORE THE HONORABLE LESLIE A. BOWMAN 

UNITED STATES MAGISTRATE JUDGE

 12

 13 A P P E A R A N C E S

 14 For the Government:

 15 Kevin Charles Hakala

United States Attorney's Office

 16 405 West Congress

Tucson, Arizona 85701

 17

 18 For the Defendant:

 19 Barbara Tapper Catrillo

Catrillo Law Firm

 20 1320 North Bryant Avenue

Tucson, Arizona 85712

 21

 22 PROCEEDINGS WERE DIGITALLY RECORDED

 23

 24 TRANSCRIBED BY: ERICA R. McQUILLEN, RDR, CRR

405 West Congress, Suite 1500

 25 Tucson, Arizona 85701

(520) 205-4267

1
 1 P R O C E E D I N G S

 2 THE CLERK: Calling Case No. CR-17-1791, USA vs. 

 3 Charles Burton Foster, on for a change of plea hearing. 

 4 Counsel, please state your appearance.

 5 MR. HAKALA: Good afternoon, Your Honor. Kevin 

 6 Hakala on behalf of the United States filling in for Adam 

 7 Rossi.

 8 THE COURT: Thank you. Good afternoon.

 9 MS. CATRILLO: Barbara Catrillo on behalf of 

 10 Mr. Foster, who is present, out of custody, and seated to my 

 11 right, and he's prepared to enter a plea today.

 12 THE COURT: All right. Thank you. Good afternoon. 

 13 Good afternoon, Mr. Foster.

 14 THE DEFENDANT: Good afternoon, Judge.

 15 THE COURT: Thank you.

 16 Sir, I'm Leslie Bowman. I'm the United States 

 17 magistrate judge. You can stay seated. Thank you for your 

 18 respect. And sir, I'm assigned to conduct your hearing today. 

 19 Because you're pleading guilty to a felony, you have 

 20 the right to have the hearing take place before the district 

 21 court judge. She has more authority than I do as a magistrate 

 22 judge, but you signed this written consent form. It 

 23 authorizes me to conduct your hearing. 

 24 Did your lawyer explain that form to you before you 

 25 signed it?

2
 1 THE DEFENDANT: Yes, Your Honor.

 2 THE COURT: All right. And sir, you also -- excuse 

 3 me just one moment here.

 4 You also have a written plea agreement here. We're 

 5 going to talk about that in just a moment, but before we start 

 6 into that, I am going to have you placed under oath. After 

 7 that, if you answer any of my questions falsely, you could be 

 8 charged with perjury. 

 9 Do you understand?

 10 THE DEFENDANT: Yes, Your Honor.

 11 THE COURT: Would you please raise your right hand, 

 12 and our clerk will administer the oath to you.

 13 (Charles Burton Foster was duly sworn by the clerk.)

 14 THE CLERK: Thank you.

 15 THE COURT: All right. Sir, is your true name 

 16 Charles Burton Foster?

 17 THE DEFENDANT: Yes, ma'am.

 18 THE COURT: How old are you? 

 19 THE DEFENDANT: Sorry, Your Honor. 61.

 20 THE COURT: How far did you go in school?

 21 THE DEFENDANT: GED.

 22 THE COURT: In the last two days, have you had any 

 23 drugs, prescription medicines, or alcoholic beverages?

 24 THE DEFENDANT: Just a prescription, ma'am.

 25 THE COURT: And when did you last take the medicine? 

3
 1 THE DEFENDANT: Today, ma'am.

 2 THE COURT: Is it anything that --

 3 THE DEFENDANT: Your Honor. I apologize.

 4 THE COURT: That's okay.

 5 Is it anything that would interfere with your 

 6 ability to think clearly today?

 7 THE DEFENDANT: No, Your Honor.

 8 THE COURT: I don't want to get too personal, but I 

 9 just want to make sure I make a good record here. Do you know 

 10 what the medication is? 

 11 THE DEFENDANT: Yes, Your Honor.

 12 THE COURT: Is it something that you feel 

 13 comfortable stating out loud?

 14 THE DEFENDANT: I'm fine with it, Your Honor.

 15 THE COURT: Okay.

 16 THE DEFENDANT: It's oxycodone and lisinopril.

 17 THE COURT: All right. And the oxycodone is for 

 18 pain? 

 19 THE DEFENDANT: Yes, ma'am. Yes, Your Honor.

 20 THE COURT: And the other medication, what is that 

 21 for? 

 22 THE DEFENDANT: Blood pressure.

 23 THE COURT: For blood pressure. All right. But 

 24 when you take that medicine, it doesn't make you feel groggy 

 25 or confused or anything like that? 

4
 1 THE DEFENDANT: No, Your Honor.

 2 THE COURT: Thank you very much. I'm not trying to 

 3 pry into your personal affairs. I just want to make sure that 

 4 you're thinking clearly today, because you're making a big 

 5 decision.

 6 MS. CATRILLO: Your Honor, for the record, pretrial 

 7 services is monitoring that he's taking the prescribed amount 

 8 of that drug, is my understanding, and that --

 9 THE COURT: Okay.

 10 MS. CATRILLO: -- he has been currently.

 11 THE COURT: Okay. Good. Thank you very much.

 12 All right. And Ms. Catrillo, do you believe that 

 13 Mr. Foster is competent to enter the plea? 

 14 MS. CATRILLO: I do.

 15 THE COURT: Thank you very much.

 16 Mr. Foster, I have your written plea agreement 

 17 here, and it does appear that you signed this document. 

 18 Before you signed it, did you review it with your attorney? 

 19 THE DEFENDANT: Yes, Your Honor.

 20 THE COURT: Did she answer all of your questions for 

 21 you?

 22 THE DEFENDANT: Yes, Your Honor.

 23 THE COURT: The district court judge who's assigned 

 24 to your case is Judge Zipps. She does not have to accept this 

 25 agreement, but once she does accept it, you won't be allowed 

5
 1 to withdraw from it.

 2 Do you understand all the terms and conditions in 

 3 this plea agreement?

 4 THE DEFENDANT: Yes, Your Honor.

 5 THE COURT: Did anyone promise you anything that's 

 6 not included in the agreement?

 7 THE DEFENDANT: No, Your Honor.

 8 THE COURT: Did anyone force you or threaten you to 

 9 plead guilty?

 10 THE DEFENDANT: No, Your Honor.

 11 THE COURT: Sir, your plea agreement states that 

 12 you're going to plead guilty to Count 1 of the indictment. 

 13 That count charges you with conspiracy to transport illegal 

 14 aliens for profit. At the time of sentencing, the remaining 

 15 counts in the indictment will be dismissed. 

 16 The maximum penalties that you face for this offense 

 17 that you're pleading guilty to today are up to 10 years in 

 18 prison, there's a fine of up to $250,000 or both, plus a term 

 19 of up to three years of supervised release, and a mandatory 

 20 $100 special assessment. 

 21 Do you understand the maximum penalties?

 22 THE DEFENDANT: Yes, Your Honor.

 23 THE COURT: Mr. Foster, your plea agreement sets 

 24 forth two different sets of potential sentencing ranges. The 

 25 ranges for the first group would be if the adjusted offense 

6
 1 level ends up at level 13. Those ranges are anywhere from 12 

 2 to 18 months all the way up to 33 to 41 months. 

 3 If the adjusted offense level turns out to be 

 4 eight, then the lowest range is zero to six months, and the 

 5 highest range is 18 to 24 months. Either of these ranges 

 6 allow your attorney to argue for a sentence lower than the low 

 7 end of all of those different sentencing ranges.

 8 Do you understand the sentencing agreement? 

 9 THE DEFENDANT: Yes, Your Honor.

 10 THE COURT: The Federal Sentencing Guidelines apply 

 11 in your case. The guidelines are only advisory. But District 

 12 Judge Zipps still has to consult the guidelines. She's going 

 13 to make an accurate determination of the specific range that 

 14 applies to you before she imposes the sentence. 

 15 And once you finish serving that sentence, you also 

 16 could serve a term of supervised release, which is something 

 17 like parole. It starts when the prison term ends. And if you 

 18 were to violate any of the conditions of the supervised 

 19 release, you could be brought back into court and be sentenced 

 20 to serve that term of years in prison in this same case.

 21 In addition to the penalties that I just explained 

 22 to you, if you commit another crime in the United States, this 

 23 conviction can be used against you to increase any new 

 24 sentence that might be imposed on you, and if you are not a 

 25 citizen of the United States, the conviction could have 

7
 1 serious immigration consequences. It could result in you 

 2 being deported and removed from the United States and excluded 

 3 from reentering the country in the future.

 4 Mr. Foster, your plea agreement states that, as long 

 5 as Judge Zipps sentences you by the terms in your plea 

 6 agreement, you're going to waive your right to appeal, and 

 7 you're giving up your right to collaterally attack or to 

 8 challenge your conviction and your sentence.

 9 Are you aware that you're giving up those rights?

 10 THE DEFENDANT: Yes, Your Honor.

 11 THE COURT: And sir, since you've been accused of a 

 12 crime, you have a number of constitutional rights. If you 

 13 plead guilty today, you're going to give up some of those 

 14 rights. 

 15 You have the right to be represented by your 

 16 attorney in a trial if you would have chosen to take the case 

 17 to trial and then also your attorney would represent you in 

 18 the sentencing hearing, if you were found guilty at the trial, 

 19 just as she'll represent you in that sentencing hearing if you 

 20 plead guilty today.

 21 If you could not afford to hire your own attorney, 

 22 the Court would appoint one to represent you, and that would 

 23 be at no cost to you. That's what has happened in your case.

 24 Sir, if you wanted to go to trial, you'd have the 

 25 right to have a jury trial before 12 citizens randomly 

8
 1 selected from this district. You and your attorney would help 

 2 choose the jurors, and you could not be convicted unless all 

 3 12 of them were first convinced that you were guilty.

 4 At trial, the jury would be instructed that you are 

 5 presumed innocent. You do not have to prove that you're 

 6 innocent. The Government has to prove that you're guilty, and 

 7 it has to prove that beyond a reasonable doubt.

 8 Sir, you would have the right to have the Government 

 9 bring its witnesses into court so that they would testify in 

 10 your presence, under oath, and then through your attorney you 

 11 would have the right to cross-examine their witnesses, and 

 12 you'd also have the right to subpoena your own witnesses to 

 13 come into court and testify on your behalf.

 14 If you went to trial, you would have the right to 

 15 testify in your own defense, if you wanted to, but if you 

 16 chose to remain silent, the jury would be instructed that it 

 17 could not use your silence against you in any way.

 18 Mr. Foster, do you understand all the rights I've 

 19 explained to you today?

 20 THE DEFENDANT: Yes, Your Honor.

 21 THE COURT: Do you have any questions?

 22 THE DEFENDANT: No, Your Honor.

 23 THE COURT: Then, sir, knowing the penalties and the 

 24 consequences that you're facing, do you still want to plead 

 25 guilty?

9
 1 THE DEFENDANT: Yes, Your Honor.

 2 THE COURT: Ms. Catrillo, do you believe your client 

 3 understands the rights he's giving up, the penalties he's 

 4 facing, the consequences of pleading guilty, and the terms in 

 5 his plea agreement?

 6 MS. CATRILLO: Yes, Your Honor.

 7 THE COURT: Thank you. 

 8 Mr. Foster, Count 1 of the indictment charges that, 

 9 from a date unknown until about October 29th, 2017, near 

 10 Tucson, in the District of Arizona, that you did knowingly and 

 11 intentionally combine, conspire, confederate, and agree with 

 12 various people known and unknown to the grand jury to 

 13 transport and move Santos Cortez-Garcia, Simon Gavilan-

 14 Velazquez, and Noe Marin-Aguilera, illegal aliens, within the 

 15 United States, by means of transportation or otherwise, in 

 16 furtherance of the violation of the law and for the purpose of 

 17 commercial advantage or private financial gain.

 18 Do you understand the charge?

 19 THE DEFENDANT: Yes, Your Honor.

 20 THE COURT: Mr. Foster, on about October 29th, 2017, 

 21 were you in the area of Tucson, Arizona?

 22 THE DEFENDANT: Yes, Your Honor.

 23 THE COURT: Were you driving a silver 2017 Infiniti 

 24 SUV that was stopped because of an allegation that you'd been 

 25 speeding?

10
 1 THE DEFENDANT: Yes, Your Honor.

 2 THE COURT: Did you have five people in the car that 

 3 were hidden under some blankets?

 4 THE DEFENDANT: Yes, Your Honor.

 5 THE COURT: And did you know or have a good reason 

 6 to know that the people that you had hidden in your car were 

 7 in the United States illegally?

 8 THE DEFENDANT: Yes, Your Honor.

 9 THE COURT: Had you made an agreement with some 

 10 other people to help transport those individuals?

 11 THE DEFENDANT: Yes, Your Honor.

 12 THE COURT: Is the Government satisfied with the 

 13 factual basis?

 14 MR. HAKALA: Yes, Your Honor.

 15 THE COURT: I'm sorry. Actually, there is one more 

 16 element. Were you going to receive some sort of payment or 

 17 something of value for your part in this?

 18 THE DEFENDANT: Yes, Your Honor.

 19 THE COURT: All right. Thank you. 

 20 And sir, how do you plead to the charge of 

 21 conspiracy to transport illegal aliens for profit?

 22 THE DEFENDANT: Yes, Your Honor.

 23 THE COURT: Do --

 24 MS. CATRILLO: Do you plead guilty or not guilty? 

 25 THE DEFENDANT: Guilty, Your Honor.

11
 1 THE COURT: Ms. Catrillo, is there any legal reason 

 2 why the Court should not accept your client's plea? 

 3 MS. CATRILLO: There are no such reasons, Your 

 4 Honor.

 5 THE COURT: All right. Thank you. 

 6 It is the finding of the Court that Mr. Foster is 

 7 guilty of conspiracy to transport illegal aliens for profit. 

 8 There is a factual basis for the plea, which was entered into 

 9 knowingly and voluntarily. These findings and recommendations 

 10 are referred to District Judge Zipps for her consideration. 

 11 The parties have 14 days to file written objections. I'm 

 12 going to order that a presentence report be prepared.

 13 Mr. Foster, your next hearing will be your 

 14 sentencing hearing. It's scheduled in front of Judge Zipps on 

 15 March 27th, 2018. That will be at 9:20 in the morning.

 16 THE DEFENDANT: Thank you, Your Honor.

 17 THE COURT: You're welcome, sir. 

 18 And I have not just a report from pretrial services, 

 19 I also had a short meeting with the pretrial services officer 

 20 before court. Usually when I see the officer walk into my 

 21 chambers, I'm thinking, oh, no, because that means they're 

 22 going to tell me something. 

 23 And what he told me was that you are doing 

 24 exceptionally well, that he wanted to come and tell me 

 25 that, not just hand me the piece of paper. You're maintaining 

12
 1 excellent communication. You're testing negative for drugs 

 2 and alcohol. You've provided proof of work, updated 

 3 prescriptions, documents about your local court matters. 

 4 You're maintaining your residence properly with your family. 

 5 Apparently you got cited for speeding, which seems 

 6 to be your downfall. You might want to slow that down a 

 7 little bit, but you handled it just fine. You went right to 

 8 court. You took care of everything just the way you're 

 9 supposed to, signed up for the defensive driving. 

 10 I mean, the report is as glowing as it possibly can 

 11 be, and honestly, I don't see reports like this very often, so 

 12 it's a great pleasure to see how well you're doing.

 13 THE DEFENDANT: Thank you, Your Honor.

 14 THE COURT: You're welcome. And of course the 

 15 recommendation is that you be allowed to remain released. 

 16 What's the Government's position?

 17 MR. HAKALA: We agree with the recommendation.

 18 THE COURT: Okay. Great. 

 19 And any record you'd like to make, Ms. Catrillo? 

 20 MS. CATRILLO: No, Your Honor. I'm just very 

 21 pleased with my client's progress.

 22 THE COURT: Yes, you should be. He should be as 

 23 well. 

 24 I'm going to order that you remain released on the 

 25 previously imposed conditions. I'm really glad to do that. I 

13
 1 hope you enjoy the holidays with your family.

 2 THE DEFENDANT: Thank you, Your Honor.

 3 MS. CATRILLO: Thank you, Your Honor. 

 4 Further, I would like to thank pretrial services for 

 5 voicing a positive report. That is very important to the 

 6 clients, to get positive feedback.

 7 THE COURT: It is. Well, some of the clients don't 

 8 get them because they don't do what they're supposed to, so 

 9 you know, it's a little bit of a catch-22. You know, when you 

 10 get somebody who's doing well, you get the glowing report, and 

 11 we just don't get that that much, sadly. So I really 

 12 appreciate it. You ended my day on a very nice note. I'm 

 13 really appreciative. 

 14 And so if there's nothing further, you may be 

 15 excused.

 16 MS. CATRILLO: Thank you, Your Honor.

 17 THE DEFENDANT: Your Honor, is it okay if I thank my 

 18 pretrial officer? 

 19 THE COURT: Yes, of course, of course.

 20 THE DEFENDANT: Thank you very, very, very much.

 21 MS. CATRILLO: Your Honor, on another matter, just 

 22 administratively, can I just speak with you briefly? 

 23 THE COURT: Sure, sure, sure.

 24 (Proceedings concluded in this matter.)

 25

14
 1 C E R T I F I C A T E

 2

 3 I, Erica R. McQuillen, do hereby certify that the 

 4 preceding pages of typewritten matter are a true, correct, and 

 5 complete transcription of the digital recording of proceedings 

 6 in the above-entitled matter.

 7 Dated this 18th day of July, 2018.

 8

 

 9 s/Erica R. McQuillen 

 Erica R. McQuillen, RDR, CRR

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