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UNITED STATES DISTRICT COURT

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UNITED STATES DISTRICT COURT

DISTRICT OF ARIZONA

United States of America, )

)

Plaintiff, ) CR 18-260-JAS(DTF)

)

vs. )

) Tucson, Arizona

Alfonso Jose Mendez, Jr., ) June 21, 2019

) 2:30 p.m.

Defendant. )

TRANSCRIPT OF PROCEEDINGS

SENTENCING HEARING

BEFORE THE HONORABLE JAMES A. SOTO

UNITED STATES DISTRICT JUDGE

405 W. CONGRESS STREET

TUCSON, ARIZONA 85701

Cindy J. Shearman, RDR, CRR, CRC

405 W. Congress Street, Suite 1500

Tucson, AZ 85701

520-205-4286

Proceedings Reported by Realtime Court Reporter

Transcript prepared by computer-aided transcription

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UNITED STATES DISTRICT COURT

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A P P E A R A N C E S

For the Plaintiff:

Gordon Davenport, III

Assistant U.S. Attorney

405 W. Congress Street, Suite 4800

Tucson, Arizona 85701

For the Defendant:

W. Eric Rau

Assistant Federal Public Defender

407 W. Congress Street, Suite 501

Tucson, Arizona 85701

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UNITED STATES DISTRICT COURT

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I N D E X

WITNESS PAGE

JOHN FEENEY

Direct examination by Mr. Davenport 13

Cross-examination by Mr. Rau 21

Redirect examination by Mr. Davenport 25

SUSAN McCLINTOCK

Direct examination by Mr. Davenport 27

Cross-examination by Mr. Rau 30

GUILLERMO LOPEZ

Direct examination by Mr. Davenport 33

Cross-examination by Mr. Rau 38

Redirect examination by Mr. Davenport 39

BRIAN CREGAN

Direct examination by Mr. Davenport 42

Cross-examination by Mr. Rau 48

Redirect examination by Mr. Davenport 51

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UNITED STATES DISTRICT COURT

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P R O C E E D I N G S

(Call to order of court.)

THE COURT: All right. Let's go on the record in case

number 18-cr-260, the United States of America versus Alfonso

Jose Mendez, Jr. This case is on my calendar this afternoon

for a sentencing hearing.

Before we go any farther, can I see counsel at sidebar?

(A sidebar conference was had.)

MR. DAVENPORT: Yes, Your Honor.

THE COURT: This came in, I don't know if it came in

yesterday or the day before. I have not read this. It is --

it came in an envelope, that's the envelope it came in. I

don't know who sent it, it is not signed. So I'm not going to

consider this but I thought because it was received in chambers

you all should have an opportunity to see this letter. In

fact, I think I've got copies for each of you.

MR. RAU: Thank you. Your Honor, just to let the

court and Mr. Davenport know, Mr. Mendez received a copy of the

letter also and he texted me a photo of this. I have a

printout.

THE COURT: I did not look at the letter. It's not

signed.

MR. RAU: No, that's fine.

THE COURT: I don't know who sent it but it's because

-- because I don't know who sent it and I didn't even read the

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UNITED STATES DISTRICT COURT

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letter, quite frankly, but I wanted you to be aware of the

contents of this letter.

MR. RAU: Thank you. And, Your Honor, I need to let

the court know there is somebody who's present in the courtroom

seated in the front row of the gallery, it's the

African-American woman with the sort of purplish dyed hair.

She was taking photographs of Mr. Mendez and his wife when we

were going through security downstairs on the first floor and

she was videotaping in the corridor of the courtroom.

Mr. Mendez's sister-in-law, his wife's sister, Betty, who

is one of the letter writers confronted her outside and she

came in and she was rather aggressive and I informed the

marshals and that's why there was courthouse security officers

here in the courtroom. But I wanted to let the court know that

that had taken place.

THE COURT: Tiffany came in and talked to my JAA.

MR. DAVENPORT: I have no problem with them being on

high alert. I'm not looking for a spectacle.

MR. RAU: All right.

THE COURT: So I will also tell you before we go any

further, this is a somewhat of a difficult case for me because

I get the feeling there's a lot more going on in this case than

is in the record. I will tell you that. I'm troubled by that,

quite frankly. You all have -- I did not see a sentencing

memo. Did you file one?

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MR. DAVENPORT: I filed the objections and to some

extent --

THE COURT: Well, I saw your objections and I saw your

responses.

MR. DAVENPORT: Yeah. And to some extent, the part

here that is the frustrating, and I recognize that, and I know

Mr. Rau has taken me to task a little bit on the scope of the

investigation versus what ultimately got charged.

THE COURT: We'll call it an objective -- not

objective, an aggressive sentencing memorandum.

MR. DAVENPORT: And I appreciated it and I take no

issue with Mr. Rau, I enjoy him very much and I want him to be

an aggressive advocate for his client.

This is one where it really exposes the issue with the

prison cases. I have a lot of conduct that goes to the issue

of interaction with prisoners. Most of the prisoners in that

penitentiary are sex offenders doing significant amount of

time.

THE COURT: But this is the facility out on south

Wilmot?

MR. RAU: Yes.

MR. DAVENPORT: Yes.

THE COURT: I've been there.

MR. DAVENPORT: So we have a built-in credibility

issue.

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THE COURT: Yeah. And then part of the reason I tell

you that, I will tell you, I haven't made a final decision but

as I walk in here, based upon what I've read so far and heard,

and I'm leaning toward placing this defendant on probation

probably for three years, not two, but going into it, that's

what I'm looking at.

Mr. Davenport, you may strongly object. I understand if

you do. And you're going to get to present witnesses if you

want, you're going to get to present and make argument but I

will tell you that going into the hearing, I'm probably going

to place this defendant on probation, and part of the reason is

I get the distinct feeling I don't have all the -- there's a

lot more going on here.

MR. DAVENPORT: Well, and I'll --

THE COURT: It's not to diminish the fact that he

committed perjury and it's clearly a serious offense but, in

view of all the circumstances, that's probably what I'm going

to do. I don't know what the government's going to suggest.

I'm not trying to put you in a tough spot.

MR. DAVENPORT: No, Your Honor. And the issue also

is, and I think I explained this to Eric. This is a case where

I had a lot of 80 percent cases where ultimately I thought that

there was -- there wasn't a case that was -- that got all the

way, and so I focused on the staff conduct, and that's why

we're here. And I acknowledge that and I recognize that that

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UNITED STATES DISTRICT COURT

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is going to -- that is a hit I take and I've confined myself,

the witnesses will largely confine themselves to contesting

things in the sentencing objections and the sentencing

memorandum.

THE COURT: So are the witnesses your witnesses?

MR. DAVENPORT: My witnesses.

MR. RAU: They're his. And I'm going to say that,

honestly, I object to all four of the witnesses named on the

grounds of relevance. I did mention them in the sentencing --

in the objections to the presentence report because they were

listed in the disclosure, some of them were related to the

charge in Count 1 that's dismissed as part of the plea

agreement in this case.

Probation discussed factual issues. I made objections to

those, the government responded, and indicated that it was

going to present testimony from those witnesses. My position

is still that that's actually irrelevant because it's not

related to the perjury charge to which he pled guilty for which

Your Honor is sentencing him today.

We're going to argue 3553(a) factors but I think that

there's not -- the relevance to that is so tenuous and I can

say, in all honesty, that the government disclosed thousands of

pages of disclosure and that for every allegation, there is

evidence in there that counteracts that allegation; for every

factual accusation that somebody in the disclosure made,

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UNITED STATES DISTRICT COURT

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somebody else contradicts that; or even if three people are

accusing something that was done wrong, they all contradict

each other and what was done wrong or how it was done wrong.

And so I think that there's a tremendous amount of smoke.

I know the government believes there's fire behind the smoke.

My position is that even if there is, it's irrelevant to the

issue of perjury.

THE COURT: If you have witnesses you want to call,

I'm going to allow you to call those witnesses.

MR. DAVENPORT: Yes.

THE COURT: I'm not going to limit you. I'll have to

determine whether it's relevant or not.

MR. RAU: Okay.

THE COURT: Or, if it's relevant, how important it is

to the issues I have to decide.

MR. RAU: And I'll raise the objection with each

witness.

THE COURT: You can do that, I'll just note a standing

objection.

MR. RAU: Okay, yes, okay.

THE COURT: And then things may move a lot quicker.

MR. RAU: Okay, that's fine.

MR. DAVENPORT: We'll take it as a standing objection.

MR. RAU: I'm fine with that.

MR. DAVENPORT: Okay.

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UNITED STATES DISTRICT COURT

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THE COURT: You can do that at the start of each

witness and then that way we won't have to go through Q and A

and objection as to each one.

MR. RAU: Okay.

MR. DAVENPORT: All right. And, Your Honor, just so

it's absolutely clear, I don't know if you have a copy of his

objections but I'm actually going to -- I'll say this is the

page I'm referring to, this is the allegation.

MR. RAU: Okay.

MR. DAVENPORT: So that there's some clarity.

THE COURT: Let me ask you one last thing. One of

your objections, though, did deal with the guidelines. It

looks to me like the final presentence report addressed your

issue and then you objected.

MR. DAVENPORT: I objected because I think that the --

THE COURT: Two-level enhancement --

MR. DAVENPORT: Is appropriate and the first witness

will deal with that.

MR. RAU: And I think -- I don't think I objected to

the guideline calculations.

MR. DAVENPORT: I don't think you did.

MR. RAU: I didn't have any objections to guideline

calculations.

THE COURT: I just assumed -- I didn't look at the

draft. I assumed that there was am objection -- I assumed that

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UNITED STATES DISTRICT COURT

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the draft had the two-level enhancement.

MR. RAU: No, it did not. Probation did not find the

enhancement.

MR. DAVENPORT: And so I'm seeking the two-level

enhancement.

THE COURT: Okay.

(The sidebar conference was concluded.)

THE COURT: All right. Let's get appearances on the

record. I think I neglected to do that.

Mr. Davenport, you want to put your appearance on the

record?

MR. DAVENPORT: Gordon Davenport for the United

States.

THE COURT: Good afternoon, Mr. Davenport.

MR. RAU: Good afternoon, Your Honor. Eric Rau on

behalf of Alfonso Jose Mendez, Jr. Mr. Mendez is present out

of custody seated to my left. He speaks English. Also present

in the courtroom are members of his family who are in the

gallery to Your Honor's left.

THE COURT: Good afternoon, Mr. Rau.

Do you want to call your witnesses first at this point? At

some point, I'm going to ask you to come forward, Mr. Rau, with

your client, I'm going to go through the colloquy on the change

of plea. I don't know what order you all want to proceed. I'd

just as soon hear the testimony now if you want to call your

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witnesses, Mr. Davenport.

MR. DAVENPORT: That's fine, Your Honor.

THE COURT: Before we do, though, I'm sorry.

Ms. Lopez, let's get your appearance on the record.

PROBATION: Good afternoon, Your Honor. Tara Lopez,

US Probation.

THE COURT: Good afternoon.

MR. DAVENPORT: And, Your Honor, just as it kind of

relates to the unsigned letter we dealt with -- you

distributed, Mr. Ayers is here, he was the person whose case it

was when there was a perjury allegation. We've been treating

him as a quasi witness, a quasi victim even though he's not

statutorily so, so putting that on the record.

THE COURT: All right. We'll have the record reflect

that he is present.

You want to call your first witness, Mr. Davenport?

MR. DAVENPORT: Yes, Your Honor. John Feeney, please.

THE COURT: Mr. Feeney, if you'd come forward.

MR. DAVENPORT: We have him outside in the side room,

Your Honor.

THE COURT: Mr. Feeney, if you'd please come forward.

I need you to stand in front of this young lady right here,

raise your right hand. She's going to administer an oath to

you.

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DIRECT EXAMINATION - JOHN FEENEY

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JOHN FEENEY, WITNESS, WAS SWORN.

THE COURT: All right, Mr. Feeney, if you'd come

around to your right and take a seat over here in the witness

chair.

CLERK: And if you can please state your full name,

spell your last name for the record, please.

THE WITNESS: John Feeney, F-e-e-n-e-y.

MR. RAU: And, Your Honor, at this point, I would like

to object to the government's use of the testimony of

Mr. Feeney as irrelevant and unrelated to the charge to which

Mr. Mendez has pled guilty of perjury. Mr. Feeney does not

have information to offer and I do not believe any other

information he has is useful to the court's consideration under

18 USC, Section 3553(a).

THE COURT: All right. Let's note the defendant's

standing objection to Mr. Feeney testifying. That objection is

overruled.

Go ahead, Mr. Davenport.

DIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Sir, could you introduce yourself to the judge, please?

A. I'm sorry?

Q. Sir, could you introduce yourself to the court?

A. My name is John Feeney. I'm presently employed with the

Maricopa County Sheriff's Office. I've been there for about

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DIRECT EXAMINATION - JOHN FEENEY

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two years. Prior to that, I was a special investigative agent

here in Phoenix and in five other facilities.

Q. Okay. What were those other facilities?

A. Let's see, I started out in Lompoc, California, I

transferred to Atlanta, Georgia; Safford, Arizona; Springfield,

Missouri; Manhattan, New York; Allenwood, Pennsylvania;

Pollock, Louisiana; and then Phoenix, Arizona, is where I

finished.

Q. And based on your history, are you familiar with the duties

and responsibilities of what we've been calling an SIA?

A. Yes, sir.

Q. Could you tell the court what an SIA is?

A. An SIA is a special investigative agent. They're pretty

much the chief law enforcement officer at a facility. They

conduct investigations of inmate activities for administrative

reasons and for criminal reasons. They also investigate staff

for the same things, criminal and administrative matters.

Q. So for a sense of perspective, how many SIAs, just

approximately, would you say are in the United States?

A. There are about 30.

Q. And how many total BOP facilities are in the United States?

A. There's over 100.

Q. And about estimating, how many total prisoners are there in

the United States?

A. 200,000.

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DIRECT EXAMINATION - JOHN FEENEY

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Q. Okay. So we're talking the 30 people that are -- would it

be fair to call them the internal affairs?

A. Yes.

Q. As a part of that duty, is it advising the warden on staff

issues?

A. It is, a large part of it.

Q. Is a part of that duty supervising what's called the SIS

office?

A. Yes.

Q. And can you tell us what SIS is?

A. SIS is the special investigation services, the

investigative component of the prison. They're the ones who

basically track the inmates, listen to the inmates, communicate

with the inmates.

Q. Okay. Now, is it important to tell the truth or especially

important to tell the truth when you're an SIA?

A. Absolutely.

Q. Can you explain why?

A. You're -- have the most knowledge of any situation, whether

it's something that occurred with the inmates, such as a

stabbing, or an officer that's maybe being alleged to do

something wrong. You're the one who has the most firsthand

information and you're the one conducting the briefings with

the warden who runs that facility.

So you develop this relationship with the warden. He

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DIRECT EXAMINATION - JOHN FEENEY

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dictates how his facility is going to run. You are like the

operations officer who makes it run that way. So he's

essentially counting on you to be honest, to provide honest,

factual information to him at all times in order to make

decisions.

Q. As a part of SIA duties, do your investigations sometimes

deal with high visibility cases, such as prison sexual

assaults?

A. Yes, they do.

Q. Do they deal with murders?

A. Yes.

Q. Do they deal with civil rights cases?

A. They do.

Q. And is your work, when you're an SIA, sometimes important

to the initial response on those cases?

A. It is.

Q. As an SIA, are you asked to testify in court?

A. You are.

Q. And is that part of your duties?

A. It is.

Q. As an SIA, are you sometimes called, in your role as a

supervisor, to conduct supervisory activities and to testify

regarding employee matters?

A. Yes, you are.

Q. And can we -- is it especially important for an SIA to be

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DIRECT EXAMINATION - JOHN FEENEY

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truthful in those matters?

A. It is.

Q. Based on your -- in your experience, based on your word

alone, have you been able to negatively affect people's careers

or livelihood?

A. I have.

Q. Okay. And is that true generally for SIA?

A. It's true for all of them, yes.

Q. Okay. And with regard to most of the line prison guards,

can you -- could you do that to them? Could you, if you lied,

could you affect their careers?

A. Absolutely. My say-so would -- could result in them being

investigated for criminal activity, it could be responsible for

an administrative investigation where they were suspended, or

it could result in nothing occurring in some cases.

Q. Did you -- was Mr. Mendez an SIA?

A. Yes.

Q. Since you were in Phoenix, he was in Tucson, did you have

any dealings with him?

A. I did.

Q. Did you know him a long time?

A. Yes.

Q. Okay. If you had to estimate, plus or minus?

A. I would say approximately 10 years.

Q. Okay. Did you ever encounter a situation where you became

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DIRECT EXAMINATION - JOHN FEENEY

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concerned with Mr. Mendez's credibility even before these

incidents?

A. I did.

Q. Okay. Can you tell us about that?

A. I was contacted by the facility in Tucson. They had

switched wardens. My warden who was at Phoenix had been

transferred to Tucson, Tucson warden had been transferred to

where I was. The -- my old warden, who was in Tucson, made

contact with me and asked me to speak to Mr. Mendez about

providing reports and reporting information both timely and

accurately.

Q. And did you have such conversation?

A. I did.

Q. How long of a conversation would you say it was?

A. We talked for, say, less than an hour, but it was for a

minute.

Q. Okay. And you're using "minute" in the kind of colloquial

sense?

A. Yes, sir.

Q. Okay. And in that, did you emphasize the importance of

candor to Mr. Mendez?

A. I did.

Q. Did you talk about how that candor related to his job as an

SIA?

A. Yes. And particularly regarding how that warden expected

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DIRECT EXAMINATION - JOHN FEENEY

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the information to flow and following up on things that you

have told him previously.

Q. Were you involved in the 2014 matter where they searched

the SIS office?

A. No, sir.

Q. Okay. What was your role -- did you have any connection to

it later?

A. Later I did, yes.

Q. Okay. What was your role?

A. I was assigned by the regional office who supervises the

SIS for the western area, including Phoenix and Tucson, to

report to Tucson to conduct a review and to supervise matters

down there.

Q. Okay. Now, on page 9 of the sentencing objections, it

says: Mr. Mendez asserts that SIA Feeney was called in to

investigate but not in a supervisory role.

Is that a -- to the best of your personal knowledge, a

true -- an accurate or inaccurate statement?

A. Inaccurate.

Q. Okay. Did you have supervisory duties?

A. Yes.

Q. Okay. And what were those duties?

A. I was to sit in the office, I was to train other staff, I

was to direct other staff in what to do. There was no

investigative agent there. The people who they were bringing

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DIRECT EXAMINATION - JOHN FEENEY

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in had a limited amount of experience.

Q. Okay. As a part of reviewing the materials at that office,

did you encounter anything unusual about some of the

investigatory materials?

A. Yes.

Q. What did you see that was unusual?

A. I saw investigations that were internally -- internal

affairs cases that I felt should have had sustained charges

when they were not sustained by Mr. Mendez. I also saw

complaints in there from inmates, some of them very lengthy,

five, 10 pages long, handwritten, they go into all these

details, but when the investigation itself was completed by

Mr. Mendez, the information in there was that the inmate didn't

want to cooperate or that he refused to be interviewed or

wouldn't sign a statement.

Q. In your history, have you dealt with inmate complaints?

A. A lot, yes.

Q. Are we talking hundreds, thousands?

A. Thousands.

Q. Okay. Is it common for someone to take the time to write a

10-page letter and then say they don't want to talk any

further?

A. No, it's quite the opposite.

Q. Okay. And what do you mean by that, sir?

A. My experience almost every time was that if an inmate took

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DIRECT/CROSS-EXAMINATION - JOHN FEENEY

UNITED STATES DISTRICT COURT

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the time to hand write a long complaint, that the inmate would

often have -- try give you more information when you actually

interviewed him and completed a statement, stuff that wasn't

even on the paper they would remember or add or even sometimes

make up.

Q. So also on the sentencing objection by the defense, it said

there were only three such alleged incidents out of

Mr. Mendez's approximately 2,000 case investigations. Was that

consistent with what you were seeing when you were reviewing

the cases?

A. I don't recall the exact number but my recollection is it

was more than three.

Q. Okay. Thank you, sir.

MR. DAVENPORT: Pass the witness.

THE COURT: Mr. Rau, do you have questions for this

witness?

MR. RAU: I do.

CROSS-EXAMINATION

BY MR. RAU:

Q. Mr. Feeney, you've indicated that there are thousands of

investigations of this nature performed over a period of years,

correct?

A. Correct.

Q. And so during Mr. Mendez's years that you were familiar

with him, he would have performed thousands of these?

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CROSS-EXAMINATION - JOHN FEENEY

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A. True.

Q. The 2,000 figure cited in the defense objection of the

presentence report was not unreasonable?

A. No.

Q. And you indicated you don't recall a specific number but

you think it was more than three that were cited to be

incorrect or inaccurate?

A. Yes.

Q. But you don't have any specifics as to numbers?

A. No, I don't.

Q. You don't have anything specific to contest the defense

objection that only three such instances were found out of

those thousands of reports that he did?

A. The -- whatever record I had created was examined by

internal affairs, so I don't really recall.

Q. And these interviews with these inmates who deny the

accuracy of Special Investigative Agent Mendez's reports were

conducted years later, correct?

A. The interviews?

Q. Yes. When you went back or someone went back to talk to

these inmates about the accuracy of these reports, those

conversations were years after --

A. I don't know that part.

Q. Okay. You didn't witness the incidents that gave rise to

the inmates' reports?

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CROSS-EXAMINATION - JOHN FEENEY

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A. Correct.

Q. And you weren't privy to the conversations that they had

with the Special Investigative Agent Mendez?

A. Correct.

Q. And your position is that there were internal affairs cases

that should have been sustained against the BOP officers but

weren't?

A. Correct.

Q. That's your own personal opinion?

A. Correct.

Q. You weren't the person who did the direct investigation?

A. Yes.

Q. You weren't the person who talked to the inmates and the

other witnesses, including the officers who were the subject of

the complaints?

A. Correct.

Q. And you indicate that the inmates' complaints were long but

that Special Investigative Agent Mendez's reports were short?

A. No. My recollection of it was there was long inmate

complaints, handwritten, and that when I reviewed the files,

there was typical responses, and out of the files that I

reviewed, let's say I reviewed 50 files, the ones that had

inmate complaints in there that were handwritten, nearly all of

them, the inmate refused to make a statement to Mr. Mendez or

similar to that.

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CROSS-EXAMINATION - JOHN FEENEY

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Q. And you weren't present when Mr. Mendez talked to those

inmates?

A. Correct.

Q. Mr. Mendez was aware of the length of their complaints,

correct?

A. Correct.

Q. He was investigating those long complaints that they had

written?

A. Correct.

Q. And you weren't present when the inmates told him that they

weren't going to go forward or denied that they had written the

complaints?

A. Correct.

Q. And you testified that inmates don't normally withdraw

complaints?

A. Correct.

Q. It's not impossible for them to do so?

A. Correct. But given the number of complaints that I saw,

given my experience, my experience is totally the opposite.

Q. But you don't know personally, based on the interactions

that Special Investigative Agent Mendez had with those

particular individuals, why he wrote that in those reports or

why they might have chosen to dispute the complaints that they

had originally filed?

A. True.

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REDIRECT EXAMINATION - JOHN FEENEY

UNITED STATES DISTRICT COURT

25

MR. RAU: I have no further questions.

MR. DAVENPORT: Can I just ask two --

THE COURT: Mr. Davenport, redirect?

MR. DAVENPORT: Just briefly, Your Honor.

REDIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Sir, I want to draw on your experience. Assume for a

moment that the prisoner makes a 10-, 15-page handwritten

complaint, Mr. Mendez decides to close it and says, let's say

falsely, that the prisoner decided to withdraw his complaint or

not or to give no further statement.

How would that differ from what you were saying?

A. It's -- it's an integrity matter. Most inmates that you

talk to, they just want a chance to tell their story. So, in

other words, you present them with a -- they have a handwritten

statement, they get to sign an official statement under oath,

this is what occurred. That's their record of what occurred.

When you take away that factor, that chance that they have to

tell their story officially, it looks like you don't care. And

that atmosphere inside a prison, that's very dangerous.

Q. And just to make clear, from what you were observing, it

was the under oath witnessed by the SIA reports that were

indicating they had nothing further to say?

A. Yes, sir.

MR. DAVENPORT: Okay. Thank you, Your Honor. We'll

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UNITED STATES DISTRICT COURT

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pass the witness.

THE COURT: Mr. Feeney, you can step down.

THE WITNESS: Thank you, sir.

THE COURT: Counsel, may this witness be excused?

MR. DAVENPORT: Yes, Your Honor.

THE COURT: Mr. Feeney, you are excused. You're free

to go about your business.

THE WITNESS: Thank you.

MR. DAVENPORT: Your Honor, we would call Susan

McClintock next.

MR. RAU: Your Honor, would you like me to make the

standing objection now or after she's sworn? Either way --

THE COURT: Let's have him sworn -- let's have her

sworn, excuse me. Is it Susan McClintock, was that the name?

MR. DAVENPORT: Susan.

THE COURT: McClintock.

MR. DAVENPORT: Yes, sir. And, Your Honor, if it's --

for ease, I'm willing to stipulate that the objection is made

on each witness.

THE COURT: Sure.

Ms. McClintock, if you'd come forward, ma'am. Let's wait

until she's sworn and she's on the stand and you can make your

objection for the record.

Ms. McClintock, I'm going to ask you to please raise your

right hand and this lady here is going to administer an oath to

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DIRECT EXAMINATION - SUSAN McCLINTOCK

UNITED STATES DISTRICT COURT

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you.

SUSAN McCLINTOCK, WITNESS, WAS SWORN.

THE COURT: All right, ma'am, if you'd come around to

your right, take a seat over here in the witness chair.

CLERK: And then if I could please have you state your

full name and spell your last name for the record.

THE WITNESS: Susan McClintock, M-c-C-l-i-n-t-o-c-k.

CLERK: Thank you.

THE COURT: Go ahead, Mr. Davenport.

MR. RAU: At this point, I will object to the

testimony of Ms. McClintock. It is irrelevant and unrelated to

the count at which the court is sentencing Mr. Mendez. In

addition, any testimony that she has has no bearing on any of

the 18 USC, Section 3553 factors that the court must consider

in imposing sentence.

THE COURT: All right. Let's note defendant's

objection. The objection is overruled. And we'll note a

standing objection this same basis on all the questions being

asked by Mr. Davenport this afternoon.

Go ahead, sir.

DIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Ma'am, could you introduce yourself to the court, please?

A. My name is Susan McClintock. I'm a retired warden at FCC

Tucson.

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DIRECT EXAMINATION - SUSAN McCLINTOCK

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Q. How long were you with BOP?

A. 27 years.

Q. And in that capacity, did you have various jobs?

A. Yes.

Q. What were those jobs?

A. I started as a correctional officer and worked my way

through the bureau as a safety trainee and specialist, manager,

an evaluations specialist in central office, camp

administrator, associate warden, and warden.

Q. In that capacity, did you know Mr. Mendez?

A. Yes.

Q. Okay. When and when?

A. The first time I met Mr. Mendez was when I entered the

bureau in July of 1990 as a correctional officer at FCC Tucson

and then we worked together for the second time when I came

back to Tucson as associate warden and then when I returned to

Tucson as warden, he was also there at the same time.

Q. And in that capacity, did you deal with him as an SIA?

A. Yes.

Q. Ma'am, and for the court's benefit, page 6 of the

sentencing objections by the defense, 6 through 13, I'm going

to read a statement and I want to understand from you whether

it's accurate or not.

Although the government waited until 2018 to charge

Mr. Mendez in the instant case with having made a false

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DIRECT EXAMINATION - SUSAN McCLINTOCK

UNITED STATES DISTRICT COURT

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statement to SA Cregan in that 2016 investigation, specifically

his denying a conversation that Mr. Mendez allegedly had with

Warden Susan McClintock concerning Warden Wynn's hard drive.

Mr. Mendez firmly denies that change. He avidly maintains that

he never had such a conversation with the warden and that he

told SA Cregan the truth.

Is that correct?

A. No.

Q. Okay. Can you tell us what happened?

A. Yes.

Q. Do you remember a conversation or conversations with

Mr. Mendez about him possessing Warden Wynn's hard drives?

A. Yes, I do.

Q. Okay. Tell us to the best of your recollection where and

when that conversation was held.

A. The first conversation was when I first returned to Tucson

as warden, it was the end of 2014 or the beginning of 2015. He

came to my office, sat down in front of my desk, and placed a

red folder on the desk, slid it over and opened it, and they

were pictures of computer hard drives. He told me that Warden

Wynn, the former warden, was out to get him and that there was

evidence on his hard drives and that Warden Wynn had had the

computers destroyed when he left, and that Mendez had recovered

the hard drives and these were supposedly pictures of the hard

drives. That was the first conversation.

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DIRECT/CROSS-EXAMINATION - SUSAN McCLINTOCK

UNITED STATES DISTRICT COURT

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Q. Okay. I gather by the fact that you called it the "first

conversation" that there was at least one more conversation.

Tell us about that, please.

A. So, after I announced my retirement, it was, I believe,

August of 2016, I stopped at the camp 'cause that's where

Mr. Mendez was assigned at the time and was speaking to him

about my pending retirement. And he spoke about the ongoing

situation with the investigation he was under and said that he

had taken the hard drives and sent them out -- sent them out.

So the -- what I took from that is he sent them out to have

them read to get information off of them. And I asked him

directly: You sent them out? And he said: Yes.

Q. Okay. And where were you when this happened?

A. We were standing out in front of the camp.

Q. Okay. At any point -- well, we'll just stick with that

since that was the defense assertion.

Thank you, ma'am.

MR. DAVENPORT: Pass the witness.

THE COURT: Mr. Rau, cross-examination?

MR. RAU: Yes, Your Honor. May I have a moment?

CROSS-EXAMINATION

BY MR. RAU:

Q. Ms. McClintock, just to be clear, your testimony has no

relevance or relation to the charge of perjury that's at issue

in this sentencing today, correct?

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CROSS-EXAMINATION - SUSAN McCLINTOCK

UNITED STATES DISTRICT COURT

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A. Not to my knowledge.

Q. And the interaction that you report -- reported regarding

these supposed statements by Mr. Mendez, you provided that

information during an investigation in 2016, correct?

A. I provided the information -- I was aware of the ongoing

investigation. I provided the information because of the

conversation, not because of the investigation.

Q. And you relayed the conversation to the agent who was

investigating at that time, correct?

A. Yes. I submitted a memo and then he came and questioned

me.

Q. And you were aware at that time that Mr. Mendez was

disputing your version of the events, correct?

A. No.

Q. Are you aware that he disputes that he had those

conversations with you?

A. Yes.

Q. And you are aware that internal affairs never received any

hard drives for analysis, despite the allegation that

Mr. Mendez had sent them there?

A. I'm not aware of any of that information.

Q. You're not aware of any use of these supposed hard drives

for the purposes that you say Mr. Mendez claimed he was using

them?

A. All I'm aware of is the conversation that we had and that I

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CROSS-EXAMINATION - SUSAN McCLINTOCK

UNITED STATES DISTRICT COURT

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reported it and then I was interviewed by the agent and, in

preparation for this trial, I was provided a copy of the

affidavit where I was -- he said it didn't happen. I say it

did happen. I know it happened. He says it didn't happen.

But the other information you're asking me about, I have no

knowledge of.

Q. Okay.

MR. RAU: I have no further questions.

THE COURT: Mr. Davenport, redirect?

MR. DAVENPORT: No, Your Honor. I ask that this

witness be excused. And we're prepared to call our next

witness.

THE COURT: Ms. McClintock, you're excused. You may

go about your business.

THE WITNESS: All right. Thank you, sir.

MR. DAVENPORT: And we would call Guillermo Lopez.

THE COURT: Mr. Lopez, if you'd please come forward,

sir. If you'll come around and stand in front of this lady

here, she's going to administer an oath to you so I'll ask you

to please raise your right hand.

GUILLERMO LOPEZ, WITNESS, WAS SWORN.

THE COURT: All right. Sir, if you'd come around to

your right and take a seat over here in the witness chair.

CLERK: And if you can please state your full name and

spell your last name for the record.

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DIRECT EXAMINATION - GUILLERMO LOPEZ

UNITED STATES DISTRICT COURT

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THE WITNESS: Guillermo Lopez, L-o-p-e-z.

CLERK: Thank you.

MR. RAU: And, Your Honor, at this point --

THE COURT: Go ahead. I'm sorry.

MR. RAU: Your Honor, at this point, I will object to

the use of Mr. Lopez's testimony as irrelevant. And, in

addition, it is unrelated to the perjury charge at issue before

the court. And it has no bearing and provides no information

under 18 USC, Section 3553.

THE COURT: We'll note the defendant's standing

objection to any questions being asked of this witness. That

objection is overruled.

Go ahead, Mr. Davenport.

DIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Mr. Lopez, could you introduce yourself to the court,

please?

A. My name's Guillermo Lopez.

Q. And what do you do for a living?

A. I'm a special investigative services technician at the

Federal Correctional Complex in Tucson, Arizona.

THE COURT: I'm sorry. I did not hear the answer.

THE WITNESS: I'm an SIS technician, special

investigative services technician.

THE COURT: All right. Thank you.

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DIRECT EXAMINATION - GUILLERMO LOPEZ

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BY MR. DAVENPORT:

Q. How long have you been that?

A. Since 2011.

Q. And before that, what was your job?

A. I was a senior officer specialist right there at the

Federal Correctional Complex.

Q. Okay. And what is a senior officer specialist?

A. It's basically one of the more seasoned staff around that

is a mentor to some of the newer staff.

Q. Okay. Have you always wanted to be in law enforcement?

A. Yes.

Q. And do you have family in law enforcement?

A. I do.

Q. Do you understand the importance of telling the truth?

A. Yes, sir.

Q. You understand the importance of integrity -- of integrity?

A. Yes.

Q. How do you know Mr. Mendez?

A. Mr. Mendez was my supervisor in the special investigative

services office.

Q. Okay. And what was your relationship with Mr. Mendez?

A. It was that of a subordinate and supervisor.

Q. Okay. Sir, in the defense memorandum, it says that

Mr. Mendez denies that he ever falsified the contents of any

investigative case files regarding inmate complaints or failed

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DIRECT EXAMINATION - GUILLERMO LOPEZ

UNITED STATES DISTRICT COURT

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to take sworn statements when inmates wished to provide them

during the many years as an SIA.

Do you have any knowledge whether that is an accurate or

inaccurate statement?

A. He did falsify documents, yes.

Q. Sir, how do you, based on your personal knowledge, know

that?

A. On a particular occasion, another staff member was the

subject of an investigation. The staff member in question was

brought in and he had my affidavit already filled out.

Q. So let's be very specific here. When you say "he", who had

your affidavit?

A. Mr. Mendez.

Q. And was your affidavit completed?

A. Yes.

Q. Had you given any interview in that case?

A. No.

Q. And were you directed to sign it?

A. Yes.

Q. And was that the -- and what type of case was this?

A. It was pertaining to abuse of an inmate.

Q. And, sir, I'm going to be real clear. Have I made any

promises to you?

A. No.

Q. Have I -- I have indicated I'm not interested in you,

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DIRECT EXAMINATION - GUILLERMO LOPEZ

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correct, criminally?

A. Correct.

Q. But you understand you can suffer fairly significant

employment consequences for what you just admitted to?

A. Correct.

Q. And you're aware of that?

A. Yes, sir.

Q. Sir, did you observe or participate at any point in

Mr. Mendez involving himself in an investigation?

A. Yes.

Q. Okay. Can you tell us what happened then?

A. On one particular occasion, I received a phone call from

Mr. Mendez. It pertained to a staff member. The way it was

presented, it was to warn the staff member as if his safety was

in jeopardy and then I informed the staff member that,

essentially, that the inmate was a danger to him.

Q. Okay. And what was that staff member's name?

A. Cody Hunter.

Q. Okay.

MR. DAVENPORT: And, Your Honor, I'd ask you to take

judicial notice of CR 16-01160. That would be the case where

Mr. Hunter was prosecuted.

THE COURT: Is there any objection to that, Mr. Rau,

other than the standing objection to relevance?

MR. RAU: Other than the standing objection to

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DIRECT EXAMINATION - GUILLERMO LOPEZ

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relevance, no. And I will be making reference to that case in

my sentencing argument.

THE COURT: Okay. Go ahead, Mr. Davenport.

BY MR. DAVENPORT:

Q. And, specifically, it would be page 10, just so we're

100 percent clear. There's a section that says: Subsequent to

my discussion with the inmate, I received information that the

inmate was cooperating with law enforcement officials.

Did you have a subsequent conversation with Mr. Mendez

after you delivered that message?

A. Yes.

Q. What did he tell you?

A. Basically, he called to follow up to make sure I had

delivered the message.

Q. Okay. Let's -- Mr. Rau has pointed out not all of these

deal with the perjury case. So let's take it back specifically

to Mr. Ayers' case.

Were you interviewed as a part of that employment case?

A. I was.

Q. Did Mr. Mendez have any discussions with you about what

your testimony would be in that case?

A. Yes, he instructed me to provide my statement to him.

Q. Okay. After you provided your statement, was there any

questions about what he -- did he provide any questions or

inquire or follow up after?

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DIRECT/CROSS-EXAMINATION - GUILLERMO LOPEZ

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A. No, not pertaining to that. On a separate occasion he did.

Q. What was that separate occasion?

A. Regarding an investigation to the SIS office.

Q. And did you, in any way, feel threatened or intimidated

with regard to the Ayers case?

A. Yes.

Q. And did you feel that if you provided certain information,

that would go badly for you?

A. Yes.

Q. And, as a result of that, were there factual things that

you knew or were asked about that you did not provide?

A. Yes.

Q. And was the source of that concern, that threat or

intimidation, Mr. Mendez?

A. Yes.

Q. Okay.

MR. DAVENPORT: Pass the witness.

THE COURT: Mr. Rau, cross-examination?

CROSS-EXAMINATION

BY MR. RAU:

Q. Mr. Lopez, you claim that you felt threatened or

intimidated during all of this supposed falsification of

reports and statements, correct?

A. Yes.

Q. You didn't report SIA -- SIA Mendez to outside law

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CROSS/REDIRECT EXAMINATION - GUILLERMO LOPEZ

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enforcement authorities, did you?

A. No, sir.

Q. You didn't go to any higher ups in the prison to report

anything that you claim was improper, correct?

A. Correct.

Q. And, according to what you say, that Special Agent Mendez

directed you to make a call to Officer Cody Hunter about an

inmate he was dealing with who was actually an informant, you

were actually the person who made the call, correct?

A. Yes.

MR. RAU: I have no further questions.

THE COURT: Mr. Davenport, redirect?

MR. DAVENPORT: Redirect?

REDIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Sir, why didn't you report it?

A. Under those circumstances at that time with Cody Hunter, I

was unaware that Cody Hunter was under an investigation.

Q. Would the SIA know the investigation?

A. Yes.

Q. Okay. Sir, why didn't you report Mr. Mendez to outside law

enforcement? It seems like you have multiple instances that

would have given someone concern.

A. Like I said, it was in fear of retaliation.

Q. Did Mr. Mendez have any bubbles, trinkets, trophies to

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commemorate all the people that he had removed from BOP

employment?

MR. RAU: Your Honor, I'm going to object to this as

outside the scope of cross-examination and to relevance.

THE COURT: Overruled. Answer the question if you

can. I'll decide how relevant it is or whether it's got any

probative value.

Go ahead.

THE WITNESS: Yes.

BY MR. DAVENPORT:

Q. Could you tell us what those were?

A. Off in the office next to a dry erase board, there was

chits of staff members that he had had terminated.

Q. So when you say "chit", is it a little thing that each

person gets as an identifier?

A. Correct.

Q. And so when someone was fired, would he save it?

A. Yes.

Q. So if you were in his office, would you see the line of

people that he had gotten fired?

A. Yes.

Q. Okay.

MR. DAVENPORT: Pass the witness.

THE COURT: Counsel, may this witness be excused?

MR. RAU: Yes, Your Honor.

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THE COURT: Mr. Lopez, you're excused. You're free to

go about your business.

THE WITNESS: Thank you.

THE COURT: Mr. Davenport, if you'll call your next

witness.

MR. DAVENPORT: Yes, Your Honor. The government calls

Brian Cregan.

THE COURT: Mr. Cregan, if you'd come forward, sir. I

need you to come over here and stand in front of this lady and

raise your right hand. She's going to administer an oath to

you.

BRIAN CREGAN, WITNESS, WAS SWORN.

THE COURT: All right. Mr. Cregan, if you'd take a

seat in the witness chair.

CLERK: And if you can please state your full name and

spell your last name for the record.

THE WITNESS: Brian Cregan, C-r-e-g-a-n.

CLERK: Thank you.

MR. RAU: Your Honor, at this point, I will object to

Mr. Cregan's testimony on grounds, first, that it is irrelevant

to the charge at issue. The charge to which his investigation

related has been dismissed under the agreement Mr. Mendez has

entered into. In addition, it's irrelevant and not probative

of any factor under 18 USC, Section 3553 for the court to

consider.

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THE COURT: All right. We'll note the defendant's

objection. The objection is overruled.

MR. DAVENPORT: May I proceed, Your Honor?

THE COURT: Yes, sir, go ahead.

DIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Sir, could you introduce yourself to the court, please?

A. My name is Brian Cregan. I'm a special agent with the

office of internal affairs.

Q. How long have you been a special agent?

A. 12 years.

Q. And where are you based?

A. Butner, North Carolina.

Q. And, as a part of your duties, do you go to prisons all

over the United States?

A. Yes.

Q. Just in the last two weeks, where have you been?

A. I've been to St. Louis and I've been to La Tuna, Texas.

Q. Okay. Before that, did you hold positions inside a BOP

facility?

A. Yes, I did.

Q. What kind of positions were those?

A. I was a correctional officer at the Federal Medical Center

in Lexington, Kentucky; I was a lieutenant in the Federal

Prison Camp in Duluth, Minnesota; and also the SIS lieutenant

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at the FPC in Duluth, Minnesota; I was a lieutenant at FCI

Gilmer, West Virginia; and also the SIS lieutenant at FCI

Gilmer. And I was the special investigative agent at the

United States Penitentiary in Lee County, Virginia.

Q. And that would be the SIA, right?

A. Yes.

Q. That would be the same position that Mr. Mendez had?

A. Yes.

Q. Okay. What involvement -- so let me back up.

For all of us that may not know the flow chart for BOP,

what component of BOP do you work for?

A. I work for the office of internal affairs, directly for the

director of the Bureau of Prisons.

Q. Okay. And, as a part of that office, did you have or what

involvement have you had with Mendez in the past?

A. I've interviewed Mr. Mendez three times.

Q. Okay. So I want to address a couple of things that came up

in the sentencing objections by the defense. First, there

seems to be, looking at page 4, Mr. Mendez, and I'm looking at

lines 21, said the following: He asserts -- meaning Mendez --

that his last day of work in the SIS office was Friday,

January 17th, 2014. He was away on vacation in Rocky

Point/Puerto Penasco, Sonora, Mexico, for the Martin Luther

King holiday weekend when OIG staff searched the SIS office at

FCC Tucson on Monday, January 20th, 2014.

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Investigator -- investigation revealed no officer was

actually assigned to work in the SIS office at the maximum

security USP Tucson facility over that weekend.

I want to just take a couple of things. There seems to

have been -- whether or not he was there, was Mr. Mendez

responsible for -- as an SIA?

A. For the office itself?

Q. Yes.

A. Yes. As an SIA, he is responsible for the special

investigative supervisor's office.

Q. Okay. Before today, did you review the duty roster of that

weekend?

A. Yes.

Q. Did you find out whether or not the statement of

investigation revealed that no officers were actually assigned

to work in the SIS office at the maximum security USP Tucson

facility over that weekend was an accurate or inaccurate

statement?

A. There were staff assigned.

Q. Okay. Then on page 5, it moves to what appears to be kind

of a soft allegation of a setup. BOP staff witnesses have

attested that Lieutenant Charles Ayers, whose 2014 EOC

complaint resulted in the deposition or deposition of

Mr. Mendez at issue in the instant case and another lieutenant

who was also hostile to Mr. Mendez received lengthy private

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DIRECT EXAMINATION - BRIAN CREGAN

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access to the unmanned SIS office at the orders of Warden Lewis

Wynn who, in parentheses, who also had an antagonistic

relationship towards Mr. Mendez, close parentheses, on

Saturday, January 18th, 2014, two days before OIG unexpectedly,

in parentheses, descended and discovered the numerous alleged

violations described in the PSR.

Is that -- so I want to just deal with a couple of things.

As a part of your investigation, did you look in whether or not

Mr. Ayers and other individuals had key or SIS office access?

A. Yes.

Q. What did you find out?

A. Mr. Ayers had no access to the office. The keys that were

originally issued to him prior to his removal from office were

secured in the lock shop.

Q. Okay. And that was true of the January 18th day?

A. Yes.

Q. Okay. Now, the allegation is that -- the unexpectedly

suggests that there was some awareness of the warden about the

oncoming inspection. When did you let the warden know you were

going to inspect the office?

A. It would have been the evening of the 19th, roughly 7:00 or

8:00 p.m. when we showed up in town. We had made our travel

plans, showed up in town, and, at that point, my supervisory

agent called the warden to the Starr Pass Resort. We briefed

him on the patio there. He had no knowledge of what we were

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DIRECT EXAMINATION - BRIAN CREGAN

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going to do or when we were going to do it until that point.

Q. And then what time did you actually search the office?

A. Midnight.

Q. So five hours later?

A. Yes.

Q. Okay. So would it be fair to say that the warden, to the

best of your knowledge, didn't have any knowledge about the

search on January 18th, 2014?

A. Yes.

Q. They raise the issue that, apart from speaking with

Mr. Mendez, OIA investigators never interviewed Lieutenant

Ayers or any other lieutenant or anyone else from SIS to

determine who actually was responsible for the violations the

OIG had encountered.

Is that correct?

A. No. There were other agents that had interviewed Ayers; I

did not. But I did interview other staff assigned to the SIS

office.

Q. Okay. And as -- was one of the results of the report and

investigation you reviewed, you determined that Mr. Mendez had

not been candid with you with regard to his responsibility for

the office?

A. Yes.

Q. It says here that you refused to provide Mr. Mendez

requested copies of the videotape of OIG's January 20th, 2014,

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DIRECT EXAMINATION - BRIAN CREGAN

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search of the SIS office or their own OIA report. Again from

the defense objections.

Why is that, sir?

A. I don't provide copies of the documents used in discipline.

Mr. Mendez, in his position, is fully aware that the servicing

human resource manager would provide any documents to him for

any pending discipline, much like we would with any other

staff.

Q. And, based on your report, did you actually walk through

minute by minute the search, the videotape with him as a part

of your interview with him?

A. Yes.

Q. Okay. The other thing I want to address is on page 6.

Really, only thing touching on the back and forth about the

warden's laptops. It says in here: The agent did not find any

wrongdoing by Mr. Mendez and Mr. Mendez was critical in his

denials, resulting in the agent closing the investigation.

Sir, did you make a finding in this case or any other case

that a person is credible?

A. No, I do not do credibility assessments.

Q. What -- can you explain as an investigator what you do?

A. When we get evidence, we gather evidence, we deal in

preponderance or admissions. In this particular case, we had

more or less a he said/she said. From the evidence that I had,

I did not have enough to sustain or render a sustained finding

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DIRECT/CROSS-EXAMINATION - BRIAN CREGAN

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in that matter.

Q. Okay. Would you say your job becomes more difficult if the

person isn't honest?

A. Oh, definitely.

Q. Why is that?

A. It taints the investigation. It makes you dig further into

things, it leads you in wrong directions. It can lead to a

whole gamut of different issues that can come up.

Q. And, normally, if you're doing an otherwise, other internal

affairs investigation, would you coordinate with the SIA

sometimes?

A. Yes.

Q. Okay. And, obviously, if the SIA is not someone you

believe is credible or truthful, does that make your job more

difficult?

A. Yes.

Q. Okay.

MR. DAVENPORT: Pass the witness.

THE COURT: Mr. Rau, cross-examination?

MR. RAU: Yes.

CROSS-EXAMINATION

BY MR. RAU:

Q. You've indicated that the group you were with spoke with

Warden Wynn at Starr Pass on January 19th of 2014, correct?

A. Yes.

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Q. That was the day before the descent on the SIS office at

USP Tucson, correct?

A. Yes.

Q. And this visit wasn't spontaneous, didn't occur at the spur

of the moment on January 19th, did it?

A. No, it occurred at midnight on the 20th.

Q. No. I mean, the planning of your visit to Tucson and the

conversation at Starr Pass, that wasn't something that just

happened spontaneously on January 19th, was it?

A. Yes.

Q. Where were you before that?

A. Before being at the Starr Pass?

Q. Yes.

A. I was in Butner, North Carolina.

Q. You traveled to Tucson?

A. Yes.

Q. Did you magically appear or did you have to make travel

arrangements?

A. I had to make travel arrangements.

Q. And you made travel arrangements for the purpose of what?

A. My supervisor told me I needed to make travel arrangements

and meet her in Tucson.

Q. To do what?

A. I was not aware until we got there.

Q. But you knew you were coming to Tucson?

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CROSS-EXAMINATION - BRIAN CREGAN

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A. Yes.

Q. And it's certainly possible that the warden knew that also

before January 19th?

A. I don't know. I did not communicate with the warden.

Q. You don't know whether someone else did?

A. No.

Q. You are aware that BOP witnesses disclosed to the defense

by the government have asserted that Lieutenant Ayers and

Lieutenant Hunt were given a key on the orders of the warden,

even though they did not possess keys, correct?

A. No.

Q. As part of your investigation, you didn't learn that the

warden instructed those people to break the glass of the key

safe and provide Lieutenant Ayers and Lieutenant Hunt the keys?

A. No.

Q. As part of your investigation, you never bothered to learn

that?

A. No.

Q. As part of your work on this case, you never bothered to

review the government's disclosure that contains those reports

from BOP employees?

A. No.

Q. So you were not aware that Ayers and Hunt were given access

to the SIS office on Saturday the 18th of January?

A. No.

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Q. Correct? You had no idea, right?

A. Correct.

Q. And you're the investigating officer, right?

A. Yes.

Q. You never bothered to talk to anybody who could have told

you that?

A. There were no other witnesses presented.

Q. And you never talked to Ayers yourself?

A. No, sir.

Q. And you claim that you interviewed other SIS officers?

A. Yes.

Q. Didn't it seem strange to you the extent of the violations

in that office, the amount of complete disarray that you

encountered?

A. No.

Q. Interesting.

MR. RAU: I have no further questions.

THE COURT: Mr. Davenport, redirect?

MR. DAVENPORT: Sure.

REDIRECT EXAMINATION

BY MR. DAVENPORT:

Q. Item one, do you remember any of the glass around the keys

being broken?

A. No, sir.

Q. Okay. Item two, when you said you didn't think it was

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REDIRECT EXAMINATION - BRIAN CREGAN

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strange about the amount of violations, can you explain more

further why you didn't feel it was strange?

A. Certainly. When I was the SIS at USP Lee and took over,

they had an interim and some actings and when I had taken over

as the full-time position, the office itself was in disarray

and we had to go through and straighten up and fix various

policy violations.

Q. Do you have any opinion -- when you interviewed, did you

have any opinion of Mr. Mendez?

A. No, sir.

Q. Okay. The -- clarifying a little bit something that I

thought was getting a little muddled, I want to just understand

the timeline. You're directed by the internal affairs, your

office at internal affairs, to fly from North Carolina to

Tucson; is that correct?

A. Yes.

Q. At that point, do you know what you're doing in Tucson?

A. No.

Q. Do you, to your knowledge, communicate with anyone in

Tucson and said, "Hey, man, I'm going to be in Tucson"?

A. No.

Q. To your knowledge did anyone else on the internal affairs

team communicate and say, "Hey, man, we're going to be in

Tucson. It's good to be here"?

A. Not that I'm aware of.

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Q. Okay. Were you present when Warden Wynn was informed about

what was about to happen?

A. Yes.

Q. Based on your observations, did he appear surprised?

A. Yes.

Q. Okay. Did he show any knowledge or make any statements

which would indicate he was aware that you were about -- what

you were about to do?

A. No.

Q. Okay.

MR. DAVENPORT: Pass the witness.

THE COURT: Counsel, may this witness be excused?

MR. RAU: Yes, Your Honor.

THE COURT: Agent Cregan, you are excused. You're

free to go about your business.

MR. DAVENPORT: We have no further witnesses for this

sentencing hearing, Your Honor.

THE COURT: Mr. Rau, do you have any witnesses you

intend to call?

MR. RAU: No, Your Honor. We will submit on the

letters that we've provided on behalf of Mr. Mendez.

THE COURT: All right. Then why don't you come

forward to the podium, have your client come forward with you

to the podium.

Mr. Rau, did you have an opportunity to go over the

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presentence report with your client?

MR. RAU: I did, Your Honor.

THE COURT: Do you think he understands the contents

of that report?

MR. RAU: Yes, Your Honor. And he was present with me

when I took extensive notes to draft the objections to the

presentence report. I've reviewed my objections to the

presentence report with him, as well as the government's

response to my objections and probation's final presentence

report, which includes its addressing my objections.

THE COURT: And I assume, before your client signed

the plea agreement, you went over that entire plea agreement

with him?

MR. RAU: Yes, Your Honor, that's correct.

THE COURT: To the extent your client had any

questions about the plea agreement, you answered those

questions?

MR. RAU: Yes, Your Honor.

THE COURT: So do you think your client understands

the contents of the plea agreement and the presentence report?

MR. RAU: Yes, Your Honor.

THE COURT: All right.

Mr. Mendez, let me address you. First I would like you to

tell me your full name.

THE DEFENDANT: Jose Alfonso Mendez.

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THE COURT: And, sir, you read, speak, and understand

English, correct?

THE DEFENDANT: Absolutely.

THE COURT: What is your date of birth?

THE DEFENDANT: 3/11/64.

THE COURT: So you are 55 years old?

THE DEFENDANT: Yes, sir.

THE COURT: Are you satisfied with the services of

your attorney?

THE DEFENDANT: Absolutely.

THE COURT: Did your attorney review the presentence

report that was filed in your case by the probation department

with you?

THE DEFENDANT: Yes, Your Honor.

THE COURT: Did he also go over the plea agreement

with you before you signed it?

THE DEFENDANT: Yes, Your Honor.

THE COURT: If you had questions about your case, did

your attorney answer those questions?

THE DEFENDANT: Yes, sir.

THE COURT: And when he was talking to you about your

case, were you able to understand everything that he was

telling you?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Well, let's have the record

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reflect that on November the 29th of 2018 the defendant entered

into a written plea agreement with the government. He pled

guilty to Count 2 of the indictment which charged him with

perjury, a violation of Title 18, Section 1621, and which is a

felony. This court by a text order on December the 17th of

2018 accepted the defendant's guilty plea.

Mr. Mendez, there is a portion of the plea agreement that

you signed that is entitled Factual Basis and Relevant Conduct.

I assume you read that and went over that with your attorney

before you signed the plea agreement?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Is everything in there true

and accurate to the best of your belief?

THE DEFENDANT: Yes, sir.

THE COURT: Essentially what you are admitting to, as

I understand it, that you gave a false statement during a, I

believe it was a video deposition; is that correct?

THE DEFENDANT: It was a telephonic interview with the

EEO commission.

THE COURT: A telephonic deposition. And that was on

July the 3rd?

THE DEFENDANT: Yes, Your Honor.

THE COURT: All right. And when you acknowledged in

the plea agreement that you knew that you were not testifying

accurately to that question?

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THE DEFENDANT: The question that was presented to me

was if I had spoken to the person directly, that's how I

interpreted it. And I said that it was a false statement. The

fact was that I made the statement during a threat assessment

meeting in November of 2013.

THE COURT: Well, you've admitted that you knew --

that you acted willfully and that you knew and believed that

the testimony was false; is that correct?

THE DEFENDANT: It is correct -- if I can explain a

little bit, I would like that opportunity.

THE COURT: You'll have an opportunity to address the

court in a minute but what you've admitted to in the plea

agreement is -- here's what it says: The defendant acted

willfully in that Mendez knew and believed that testimony was

false.

Is that correct?

THE DEFENDANT: Yes, that is correct.

THE COURT: Okay. And I'll give you an opportunity in

a minute to address the court. If you want to explain that

answer, I'll give you an opportunity in a minute.

Mr. Mendez, there's another part of the plea agreement that

I want to talk to you about, actually, two parts. There's --

on page 3 it talks about the sentencing guidelines and you went

over that with your attorney?

THE DEFENDANT: Yes.

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THE COURT: All right. And page 4 and 5 there's a

paragraph entitled Waiver of Defenses and Appeal Rights. That

paragraph essentially provides that, as long as I sentence you

in accordance with the terms of the plea agreement, you have

agreed to waive your right to appeal my sentencing decisions

today. You are also waiving your right to challenge your

conviction in a later proceeding. The only two exceptions

would be ineffective assistance of counsel or prosecutorial

misconduct, otherwise, you're waiving your right to challenge

your conviction in a later proceeding, and you are also waiving

your right to raise any possible defenses that you may have had

to the charges in your case.

Do you understand that that's -- that waiver is part of the

plea agreement?

THE DEFENDANT: Yes, Your Honor.

THE COURT: And did your attorney go over that with

you and explain that to you before you signed the plea

agreement?

THE DEFENDANT: Yes, Your Honor.

THE COURT: I'm going to accept the plea agreement

today. It is the judgment of the court today that the

defendant is guilty of perjury, as set out in Count 2 of the

indictment. The offense is a class D felony. It's a violation

of 18 USC 1621 and the offense occurred on or about August the

31st of two thousand -- excuse me, July the 3rd of 2014 here in

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the District of Arizona.

Before coming into court this afternoon, I have read the

presentence report filed in this case by the probation

department, including their recommendations to the court.

Mr. Rau, on behalf of his client, filed objections to the

presentence report. Mr. Davenport, on behalf of the

government, filed responses to that. Mr. Rau also filed a

sentencing memorandum which I have also read, and Mr. Rau

submitted what he refers to as attachment C. There are letters

-- two letters on behalf of the defendant, one from his

sister-in-law and one from a coworker. I've read those letters

also.

Counsel, is there anything else in written form that I

should consider before sentencing this afternoon?

MR. RAU: Your Honor, if I may, did the court also

receive letters submitted on May 23rd -- it looks in

attachment C and then the letters were also -- I'm

double-checking, I guess it's attachment A and B.

THE COURT: I don't see those, you can either let me

look at them now if you have them or you can talk about them --

MR. RAU: May I approach?

THE COURT: Sure.

MR. DAVENPORT: Which one is it? No.

MR. RAU: Your Honor, this was submitted -- it should

have been submitted on May 20th of 2019. Did probation receive

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it?

PROBATION: (Probation officer shook her head.)

MR. RAU: If I may first present them to the court.

THE COURT: Sure.

Mr. Rau -- Mr. Davenport, you've seen them? Mr. Davenport,

you've seen those?

MR. DAVENPORT: I have not. I'm not disputing that

they are what they are. I'm just saying present them to the

court.

THE COURT: Do you want to look at them before I look

at them?

MR. DAVENPORT: I'll look at them for a moment, Your

Honor.

MR. RAU: Your Honor, I apologize to the court, to the

government, and to probation. Those actually should have been

submitted three days before and what I have indicated that they

were submitted three days before the one with attachment C on

them.

THE COURT: Well, I did notice it was attachment C and

it did cause me -- I was kind of curious as to what happened to

attachments A and B but I have not seen them so let me look at

them before we go any farther.

MR. RAU: And, Your Honor, if I may, before I give

them to Ms. Lopez to look at on behalf of probation, I'd just

like to read into the record who the letters are from. The

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first letter, listed as attachment A, is a letter from

Mr. Mendez himself and then attachment B includes a letter from

David Clifford, a friend who's retired from the Bureau of

Prisons. A second letter from Becky Smith-Massett, a long time

Federal Bureau of Prisons employee. Third is Linda Frisby,

F-r-i-s-b-y, hyphen Thursby, T-h-u-r-s-b-y, also a Bureau of

Prisons employee; retired Bureau of Prisons employee Leroy A.

Smith, Jr.; Letty Molina, M-o-l-i-n-a hyphen Gutierrez,

G-u-t-i-e-r-r-e-z; and John Quan. And if I may approach

probation to give them to Ms. Lopez to take a look at?

THE COURT: Ms. Lopez, did you see them?

PROBATION: No, I have not.

THE COURT: Just give them directly to me. She's

going to end up with them after the hearing so --

All right. For the record, I've also reviewed a memorandum

from Mr. Rau. It's dated -- actually, I don't know if -- dated

May the 20th and there are letters, it's attachment A and B.

I'm going to be giving it to the probation department after

this hearing but I have read the letters that were submitted by

Mr. Rau.

Okay. Anything else in written form, counsel?

MR. RAU: No, Your Honor. I do want to address, I've

spoken with the government, they did submit a letter on behalf

of Charles Ayers in this case and we do have an objection to

that letter. I don't know if Your Honor wants to hear about my

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objection now or would prefer to wait. I don't know even know

if Your Honor has received it and has reviewed or considered

it.

THE COURT: Are you submitting a letter from

Mr. Ayers, Mr. Davenport?

MR. DAVENPORT: We submitted a letter before the last

sentencing. Do you not have a copy, Your Honor?

THE COURT: I do not. It's not in my packet, so --

MR. RAU: Your Honor, we do object. I don't know if

you want to hear the argument now or prefer to wait.

THE COURT: Go ahead and state your objection.

MR. RAU: Your Honor, our position, first, is that

Mr. Ayers has no standing to submit a letter in this case. He

is not actually a victim statutorily and is not entitled to

have any input. This is --

THE COURT: Does he have to be a victim to submit a

letter?

MR. RAU: My position is in this particular instance

is yes and based on the nature of the letter and its contents,

which go far beyond the perjury during an EEOC telephonic

deposition, we would urge the court to disregard the letter in

its entirety.

It appears that Mr. Ayers spends a good amount of time

defaming Mr. Mendez on social media. There are Facebook groups

for former and current BOP employees and Mr. Ayers has posted

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things like: Staff from Florence, Leavenworth, and Tucson in

BOP, former SIA Mendez is now a felon. And he's posted other

things. It's very clear that he is deeply bitter and resentful

and blames Mr. Mendez for things that had absolutely nothing to

do with Mr. Mendez or the perjury during the EEOC telephonic

deposition.

Our position is he's not entitled to submit this letter,

he's not entitled to defame Mr. Mendez and try to use that to

send Mr. Mendez to prison to assuage his own bitterness. He's

not entitled to try to spread stories about Mr. Mendez and

trash him on social media. And especially since he's not been

subject to any sort of cross-examination in a case, none of the

things that he puts there, which are defamatory and used really

for the purpose of harming Mr. Mendez, are credible and should

be considered by this court.

THE COURT: Mr. Davenport?

MR. DAVENPORT: First I have the letter, Your Honor,

if you don't have it.

THE COURT: I don't have the letter. Well, before I

look at it, I want to hear your response to Mr. Rau's

objection.

MR. DAVENPORT: So the -- first, Your Honor, the

context of the perjury in this case is important. And I expect

Mr. Mendez is going to attempt to walk it back but event one is

there's a threat assessment related to some complaints that

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Mr. Ayers makes. Mr. Mendez, in the closed room of staff with

the threat assessment team, says: He's dishonest and disloyal.

Then, when they're evaluating, the EEO counselor puts him under

oath and says: Did you call him dishonest? Did you call him

disloyal? He said: That's a false statement.

The additional context is I have the civil deposition which

was 2015 where he multiple times said: I don't think he's

disloyal, I don't think he's disloyal. And then it said:

Well, I thought he was disloyal to the organization.

In my view, that is someone who has been directly impacted

by this defendant's crime. He was someone with responsibility

and, drawing on what Mr. Feeney said, this is someone who is

supposed to be the white knight in the prison. And when he

lies, that's everything. He's the guy that's supposed to --

his word is supposed to be golden. And when he lies, the guy

he lies against is a liar. And I think Mr. Ayers makes a very

good, and I think clear, articulation of the harm he suffered

as a result of this crime.

Now --

THE COURT: All right. I'm going to overrule the

objection. I'm going to read the letter. If there are

portions that I think are relevant, I'll consider them. If

there's portions that I think are irrelevant or inflammatory,

then I'm not going to consider them. We'll note the

defendant's objection. The objection is overruled.

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All right. For the record, I've also read a letter

addressed to this court from Mr. Ayers.

All right. Anything else in written form, counsel?

MR. DAVENPORT: No, Your Honor.

MR. RAU: No, Your Honor.

THE COURT: All right. With respect to the guideline

calculations, the presentence report proposes a base offense

level of 14, a two-level adjustment for acceptance of

responsibility, and a total offense level of 12. The

government has objected to the failure to include a two-level

enhancement. I've read your arguments on that. I'm going to

overrule the government's objection; I'm not going to apply

that two-level enhancement. So I find that the total offense

level in this case is 12. The defendant falls into criminal

history category I. The guideline provisions are 10 to 16

months. The plea agreement provides for a range of zero to

16 months.

And there are a number of objections that have been filed

by Mr. Rau. Do you want to add to what you filed or do you

want me to rule on your objections at this point?

MR. RAU: No, Your Honor. You can go ahead and rule

on the objections as they stand.

THE COURT: I'm sorry?

MR. RAU: You can rule on the objections as they

stand, Your Honor.

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THE COURT: Okay. I think some of the objections --

I'm looking at Ms. Lopez's addendum, which I assume you've all

seen. I think some of the objections are moot because she

revised her final PSR.

Would you agree?

MR. RAU: Yes, Your Honor.

THE COURT: All right. With respect to objection one

in Ms. Lopez's addendum, I'm going to -- the objection is moot

so I don't have to rule on it. The final presentence report

was revised and the government agreed that the revisions were

appropriate.

With respect to objection two, I'm going to sustain it in

part as to paragraph 8. I think the government agrees with

that. I'm going to overrule it in part as to the issue of

Count 1. The defendant argues or that I should not consider

any evidence with respect to Count 1. That objection is

overruled.

With respect to objection three, that is also moot; the

government agreed with the defendant's objections and the final

presentence report has been revised accordingly.

The government filed the objection with respect to the

two-level enhancement that we've talked about under 3(b)(1.3),

that objection is overruled.

All right. Having said all that, Mr. Rau, let me hear from

you first and then I'll hear from your client.

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MR. RAU: Your Honor, this has been a long and painful

process for Mr. Mendez and his family who are here in the

courtroom to support him. As we noted in the sentencing

memorandum, he had a longstanding conflict with Warden Lewis

Wynn. He contacted his Congressional representatives regarding

the situation of his employment at BOP and had actually sued

the Bureau of Prisons. He is a long-time Bureau of Prisons

employee. He is a military veteran, honorably discharged, and

he served the BOP for many years. He has no criminal history.

He is widely beloved, as the letters in his support indicate.

THE COURT: I get the distinct impression from looking

at the audience and everything that I've read that he is widely

beloved and widely reviled also.

MR. RAU: Yes, Your Honor. I would say that it's fair

to say that there are people who have highly positive

impressions of him and those who have highly negative

impressions of him.

Quite frankly, my position, and in interacting with the

government over the many months of this case, was diametrically

opposed. The government's view was everybody who says

something good about him is blinded by loyalty, the people who

say the negative things are the ones who are telling the truth.

Our position is the opposite, that those people who know him,

who know his character, who know his integrity support him, and

the people who are attacking him, the people who are trying to

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defame him are people who have, for whatever reason, antagonism

or hatred toward him. I don't know that we can resolve any of

that in this particular sentencing but it is fair to say that

he is a widely beloved person by a number of people, even if

there are those who are very much opposed to him, even though

there are those here who are taking pleasure in seeing him

standing before the court for sentencing.

There was somebody, as we noted for the court earlier, who

was taking photographs of Mr. Mendez and his wife to post on

social media and taking videos in the hallway. So there are

clearly people here who are taking malicious pleasure in

whatever is happening to him.

And, despite that, he has tremendous support, not only

within his family but also within people of the BOP. Part of

the problem is that current BOP employees don't want to make

waves, don't want to endanger their own jobs by supporting him.

And so the people who did write letters in his support who are

still current BOP employees were quite brave to do so and we

thank them and we commend them.

I will note that when he was first brought to his initial

appearance when I was appointed on the case, I talked to his

employment lawyer, Ivelisse Bonilla, who is one of the most

respected employment attorneys in Tucson, and she was aghast

that he was being charged with perjury because, in her

experience, in EEOC depositions people make false statements on

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both sides and she's never seen anyone charged federally with a

felony of perjury. This was a telephonic deposition. I would

note for clarity that the question specifically was that

Mr. Ayers claimed that Mr. Mendez had verbally attacked him and

called him disloyal. The question is quite clearly inelegantly

and poorly phrased because it does lead one to assume that the

questioner is asking about a specific attack on Mr. Ayers.

Mr. Mendez absolutely --

THE COURT: Your client specifically admitted in the

plea agreement --

MR. RAU: Correct.

THE COURT: -- that he knowingly gave false testimony.

MR. RAU: Correct. But I think at the same time, in

looking at his conduct, in looking at the ramifications of

that, it needs to be factored in what was going on. He did not

have a lawyer present, he was being interviewed telephonically

over a situation that had happened some time previously -- I

think it was eight months before if I'm -- if I'm not mistaken.

This is an instance in which the government took years to

investigate this case. The incidents at issue took place in

2014 and 2016, and he was arrested in 2018. And the government

knew where he was, they knew what his residence was, they could

have bought him in on a summons. Instead, they indicted him

and issued a warrant. And they could have had him arrested at

home on a warrant, though it wasn't necessary. Instead, they

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chose to do so at work in front of his coworkers that he had

worked with for years. That is a tremendous personal

humiliation.

The suffering that Mr. Mendez has experienced has been

extreme. It is not necessary for him to be imprisoned, despite

probation's recommendation, despite the government's request,

despite Mr. Ayers' demands in his letter. A sentence of

probation is appropriate in this case.

The government asked the court to take judicial notice of

the case of Corrections Officer Cody Hunt from the Bureau of

Prisons. And since the court has been asked to take judicial

notice, I would point out that Officer Hunt received 60 months

of probation for making false statements regarding his

involvement with a conspiracy to promote inmate contraband of

tobacco for which he expected to be paid $150,000 by an

inmate's family.

Officer Lopez testified that he made a call, supposedly at

Mr. Mendez's behest, to let Officer Hunt know that the inmate

that he was working with was an informant. He didn't report

that to anyone, and Officer Lopez admits that he was actually

the one who made the call.

But, in looking at the subject or the recipient of that

supposed call, we have somebody who was far more egregious in

anything that he did than anything that's been alleged here

under this false statement to Agent Cregan charge or the

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perjury charge, and that particular individual got 60 months of

probation and was allowed to move and have his probation

transferred to the District of North Carolina.

I think, since the government has asked this court to take

judicial notice of that case, it bears on the sentence that

Mr. Mendez should receive.

Our position is that a sentence of probation is

appropriate. He is now a convicted felon. He entered into an

agreement with the Bureau of Prisons by which he retired. He

is now retired earlier than he had intended to, at a lower

retirement rate than he had hoped for, and he is now working.

His family is present. As you can see from the letters

submitted on his behalf, he is a mainstay of his family and he

often travels out of state to help his family. His

brother-in-law is severely ill and has been going through

extensive treatments and his brother-in-law specifically made

the effort to come here on behalf of Mr. Mendez, despite his

treatments, while he's in an interim period between his

infusions, to be able to support the brother-in-law that has

been so helpful to him and his family.

These people know Mr. Mendez far better than Charles Ayers,

than AUSA Davenport, than Agent Cregan, than Officer Lopez.

These people love him, they support him, they need him. And

our position is that he is entitled to a term of probation and

that's what we ask the court to impose.

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THE COURT: All right. Thank you, Mr. Rau.

Mr. Mendez, this is your opportunity to address the court

and to tell me anything you think I should know or anything

about the offense that you have pled guilty to.

THE DEFENDANT: Okay. Thank you, Your Honor, for

giving me the opportunity to speak to you. Thank you also for

reading those letters that my family, friends, and coworkers

wrote to you. I appreciate that.

This has been a long journey for me. I've been going

through this since 2013. 2014, in January 2014, I spent eight

months inside of an inmate visiting room that was my, let's

say, duty station. From there I was moved to another location

in September of 2014 to a storage room and I stayed there until

December 1st of 2015. Then I was returned back to a visiting

room and I sat in this visiting room until the issue came in

February where I was arrested.

I do want to make this clear that I apologize to you and

your staff for this situation that I'm here before you.

I was interviewed for -- by a threat assessment committee

because it was an allegation that I physically threatened

Mr. Ayers. One of the members in there asked me if I viewed

him as being disloyal and dishonest and, at that point, I said:

If I'm being accused of physical threats, yes, I do. Now, in

July of 2014, I was interviewed by the EEO commission --

THE COURT: Well, you were placed under oath, weren't

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you?

THE DEFENDANT: Not during the -- not during the

threat assessment, sir.

THE COURT: Okay. I'm talking about, I'm referring to

the July 3rd, 2014, telephonic deposition.

THE DEFENDANT: Yes, I was. It was a telephonic

deposition and I was asked multiple questions, questions like:

Did you keep -- did you tell Mr. Ayers he couldn't attend

meeting? No. Did you keep him out of and tell him he couldn't

attend intelligence meetings? And I said: No. And then she

asked me: Did you call him disloyal and deceptive? And I

said: No, that's a false statement. I interpreted it as if --

if I had spoke to him directly. Nonetheless, I'm still

responsible for my actions.

As we were going through this situation, I ended up

contacting my representatives, specifically John McCain, Martha

McSally, and Jeff Flake, and Raul Grijalva. I received

feedback from everybody except Raul Grijalva. And I spoke

multiple times with Jeff Flake and Martha McSally.

Shortly thereafter, I was interviewed by the Office of

Internal Affairs and that was in September of -- August and

September of 2016. In 2017 I was proposed a letter for

reduction in grade and loss of wages, of course. I responded

to that. Everything that Brian Cregan presented on that report

was without merit. I proved it. I had all the evidence.

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In June of 2016 I was demoted. Cost of -- it was a big

chunk of money that I was reduced to so I contacted Ivelisse

Bonilla and I presented my case to her.

THE COURT: Now, as I understand it, there was a

confidential settlement agreement that was reached; is that

correct?

THE DEFENDANT: Absolutely. I'm not going to --

THE COURT: So I don't want you to get into any of the

terms of whatever --

MR. RAU: And, Your Honor, he won't.

THE DEFENDANT: No, I won't.

So, basically, we ended up -- they presented an agreement,

a settlement agreement, the government. I agreed to everything

except one and then, shortly thereafter, I was arrested and

Mr. Rau explained to me the situation and all that.

On that day I spent a good chunk of the day, you know, in

restraints, leg irons, belly chain, hand restraints. During my

arrest, I was -- I stood in the parking lot during the

application of restraints for a long time. I could only gather

that it was for to further my humiliation.

Bottom line is this: As we were going with my attorney in

preparation for trial, I presented it to him, I told him, I

said: You know, Eric, the bottom line is, I said that. I said

it. I made the statement. I should have known better. How I

interpreted it is irrelevant but I made the statement. And so

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for that, yeah, I'm responsible.

My family needs me and I need them. I travel to Salt Lake

City practically every other month to assist them -- to assist

them in their needs. They've been very supportive for me and

I'm very supportive for them. I have a full-time job. I

wasn't anticipating doing that but I work construction six days

a week from 5:30 to 6:00 or 8:00 p.m. every day except Sundays.

Again, I'm sorry for the situation that has been presented

to you. I apologize to your staff, to Mr. Davenport, to all --

anybody that is in your group. So that's all I have to say.

Thank you so much.

THE COURT: All right. Thank you, Mr. Mendez.

Mr. Davenport, what is the government's position?

MR. DAVENPORT: Yes, Your Honor. There may be no

better named area of law in crime than corruption. In the same

way that an organization or a person gets sick, the way an

organization gets sick is through its people. Mr. Rau has made

the observation, as have you, this was much more extensive than

what ultimately got to the needlepoint of a perjury case.

And I will say it was one of the more difficult

investigations I've gone through because of the practicalities.

The defendant is well spoken, he's clean cut, he has military,

he has a lot of good people and people who are loyal as can be

to him.

The people who I was sorting through their complaints were

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often prisoners, sometimes notorious. Often, because of the

special programming, they were sex offenders. We were dealing

with pornographers, pedophiles, molesters, and those are the

people who talked to me and who we were looking at.

And I looked through their cases. I looked through every

one. And, ultimately, I said: Look, if this guy's dirty, if

he's not honest, then there's going to be a case which is just

staff, where everyone he talked to is staff. Guess what? This

is all staff. The threat assessment was all staff. The EEO,

all staff. The lawyers, everything's recorded. This is one

where -- and this is the 3553(a) factors -- this is someone

who, at least when he stepped in the BOP, I can't speak to

whether objectively he is a good man or a bad man, and I look

at, is this a man who committed crimes and, in the course of

those crimes, caused severe harm. And he is.

He is someone who caused a great deal of damage because he

was not someone that was allowed to fall. The SIA is the

internal affairs. When your internal affairs guy lies, your

ability to leverage that and hold other people who are

oathbound in that institution, which is everyone else, goes out

the window. When the SIA guy is -- people feel threatened and

they feel like they can't report or they feel like they're at

risk and they look over and they see that line of everyone who

used to be on BOP and isn't, their little knobs lined up, and

when that guy goes, I mean, it's -- it's impossible to repair

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easily. I know that I -- if I had said what the prisoners, if

I had believed them, if I had multiple people prisoners, I

would have had some pornographer doing 50 years for creating

child porn with Mr. Mendez saying: No, sir, that's not right.

And so I dug in.

I think Mr. Rau is incorrect in one thing in that I -- I

don't think he's a devil. I think that there was arrogance and

there was selfishness, and I want to draw in back to the

perjury because it's important what he lied on. He said -- he

was asked: Was Mr. Ayers disloyal? Did you call him disloyal?

And part of the reason that I brought in Mr. Lopez and that I

brought in, really put on the evidence so you could evaluate

the witnesses yourself is to -- so you could get a sense of why

that matters, why that loyalty matters.

I wish I'd had the letters that kind of got presented to

you -- I don't blame Mr. Rau -- because there were little

details that when you're going, how can someone be so reviled

and so loved, it's little details like, when I interview people

I would ask, and with the agents, we would interview people and

we'd ask: What did he tell you about his military service?

More than a couple said: Oh, yeah, he was talking about how he

got shot in Afghanistan and how he almost lost his leg and how

the insurgent (phonetic) gentlemen took it over.

Well, I looked at his reports in his application. He took

no veteran preference, he doesn't have a Purple Heart. I don't

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know whether or not he got shot but certainly the indications

aren't there. And so it just is one of those every time you'd

look -- and part of the reason that I wanted to let the

witnesses speak is, and I went through each thing the defense

put in its objections, and, again, Mr. Rau is relying on his

client to advance and say this fact exists or not, the sheer

gall to assert false statements in sentencing for your perjury

case is staggering. You can evaluate their credibility. But

it looks like he'd legitimately, black and white, told at least

four or five asserted false statements in service of before

coming to you for a perjury case.

I can't fix that. And if you're evaluating a person, you

need to look and go, okay, this is someone who's that far gone.

I looked at their witness -- the first waive of letters, and I

was concerned when you read the sister-in-law letter you'd go:

No acceptance of responsibility. That would have been a

completely inappropriate based on where that story had to come

from.

Your Honor, there are 30 of this position in

100 institutions with -- affecting 200,000 people currently

incarcerated, and thousands and hundreds of thousands of family

members and formerly incarcerated. To describe this as a

crucial, key, important position in the United States, it's not

overblown. And for that guy to lie throws -- throws

corruption, blackens what everyone else is doing, the entire

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purpose of the institution.

I -- I'm sure a lot of people love him. I'm sure he has a

lot of good qualities. I'm not taking away that he served his

country. But, at the end of the day, the first rule of public

service is you serve the public, not your friends, not your

family, not yourself. And that's what he violated.

So, Your Honor, I'm asking for at least a year of

detention. I know that that's higher than even Mr. Hunter got

but, at the end of the day, we are responsible -- to have the

position, that level of position in the United States is a

responsibility, it is a weight. And when you fail and you do

so knowingly, and you do so in a way that undermines the

credibility of whatever you've done for years, it costs, and he

has a price to pay. And I think that's over a year in prison,

Your Honor.

THE COURT: All right. Counsel, is there any legal

cause why I should not proceed with sentencing?

MR. RAU: No, Your Honor.

THE COURT: I've looked at all the factors set out at

18 USC 3553(a) in arriving at my sentencing decision today.

When I look at the nature and circumstances of the offense, it

appears that this defendant, in his plea agreement,

acknowledged that he had acted willfully and that he gave false

testimony after he'd been placed under oath. He breached a

fiduciary duty he had to his employer and he also committed a

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crime and he's pled guilty to that crime. So that is --

appears to me as to what happened but it looks to me, in

looking at this case, that the story is much, much larger than

his -- the false statement that he gave. As I told counsel at

sidebar, I have the distinct impression that I don't have all

of the -- there's a lot more going on in this case than I have

access to information and that part of this case troubles me.

But having said that, Mr. Mendez, nevertheless, you lied

under oath. You tried to walk it back a little bit right now.

I'm not going to let you walk it back 'cause you lied under

oath. If you thought that question was confusing, if you

thought it was misleading, you're smart enough and experienced

enough to say: I don't understand the question. Rephrase it.

I don't think that's what occurred here. I think you

deliberately lied under oath.

Having said that, as I indicated before, it strikes me that

there's a lot more going on in this case than I have access to

information about.

There are mitigators and aggravators in this case. This

defendant had a high ranking position. He breached a fiduciary

duty that he had and there are other people within the

organization that, I'm sure, relied upon him and he was -- he

was a leader within the organization and he was supposed to be

an example setter, and I think you've let yourself down and you

let all of those other individuals down by your activity.

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I also took into consideration that this defendant was --

had past military service, he was employed, if I read one of

the memorandums or perhaps the presentence report correctly, he

was with the Department of Justice for 31 years and he was --

spent 14 years as a special investigative agent. So I'm sure

he made a lot of very positive contributions at the same time.

He also appears to enjoy strong family support and some

level of community support and he has the support of some of

his coworkers, as is indicated by the letters that I have

received.

He is not in a situation anymore where he's going to be

able to commit the damage and the harm that he did to the

organization because he is no longer -- he's lost his job, he's

had to retire early, and he's no longer with the Bureau of

Prisons. I've taken that into account also.

In deciding whether to impose a custodial sentence or not,

I also considered, frankly, his safety if he were to be

incarcerated, although I'm sure arrangements could be made to

assure his safety. But when I look at the overall

circumstances in this case, I don't think a custodial sentence

is appropriate. The defendant has no criminal history. It

looks to me like he is suffering a lot of nonincarceration

consequences as a result of his actions. So I am going to be

placing him on probation this afternoon.

Some people may think that's a very light sentence, other

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people may think it's a very justified sentence but I think,

when you balance all of the factors that I need to consider

under 3553(a), I think it's an appropriate disposition.

That still does not excuse your behavior, Mr. Mendez. I

don't know, somewhere -- the term I like to use is somewhere

you went off the tracks. I don't know exactly why or when that

started but you seem to me to be minimizing some of the things

that you've been involved in. Whether or not there were other

circumstances that I'm not aware of that led you to do this,

it's not clear to me. As I indicated earlier, I have the

feeling there's a lot more going on in this case than I know

about. But nevertheless, you went off the tracks, to use my

term. I think you know that, I believe that's the case.

I am placing you on probation because of your past history.

I know that you are -- assist your brother-in-law with his

physical condition and I've given that some consideration.

I also considered whether or not to impose a term of home

detention as a condition of probation to add an additional

level of -- to add an additional sanction. I don't know that

it makes much sense in this case. The defendant -- other than

the false statements that he gave and what appears to me to be

a pattern of false statements, I don't know that home detention

will add anything in this particular case, so I'm not going to

be placing him on home detention.

For all of those reasons, it will be the judgment of the

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court today that the defendant be placed on probation for a

period of three years.

Mr. Mendez, while you're on probation, you're going to be

subject to all of the mandatory and standard conditions of

probation that this district has adopted in its General

Order No. 17-18. I'm not going to go through all of those

conditions with you this afternoon. This lady over here is

from the probation department. After this hearing, you're

going to need to meet with her. At some point, they're going

to schedule an appointment with you with your probation

officer. That officer is going to review all of your

conditions with you and you'll be required to sign off for

those conditions.

I will tell you that one of your conditions of probation is

the condition that you are not to violate any laws, whether it

be federal, state, or local.

I'm also going to order the defendant to cooperate in the

collection of a DNA sample. It's always listed as a special

condition; I don't know why. It's actually, in my judgment, a

standard condition.

There's a recommendation for the search condition. I'm not

going to be following that recommendation. I don't see that

that is necessary in this case. If it becomes necessary or

appropriate in the future, I'm willing to consider a

modification in his conditions of probation to include the

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search condition.

Mr. Mendez, do you have any questions about any of the

terms of my sentence?

THE DEFENDANT: No, I don't, Your Honor.

THE COURT: Mr. Davenport, I assume you're moving

dismiss Count 1 of indictment?

MR. DAVENPORT: I am, Your Honor.

THE COURT: On motion of the government, I'm going to

dismiss Count 1 of the indictment.

Based upon the terms of the plea agreement, I find that the

defendant has waived his right to appeal this court's

sentencing decisions today. He has also waived his right to

collaterally attack his conviction, other than a collateral

attack for ineffective assistance of counsel or prosecutorial

misconduct. I'm going to accept the defendant's waiver at this

time.

Mr. Davenport, anything else from the government?

MR. DAVENPORT: No, Your Honor.

THE COURT: Mr. Rau, anything else?

MR. RAU: No, Your Honor. Thank you.

THE COURT: All right.

CLERK: I'm sorry, Judge Soto, financial.

THE COURT: Thank you. Sorry. I always miss

something.

I'm not going to assess a fine in this case; I don't think

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it's necessary. I am going to order the defendant to pay the

special assessment of $100, which is mandatory. I'm going to

order that it be paid at the rate of $10 per month for the

first 10 months that the defendant is on probation. The first

payment will be due one month from today's date.

Tiffany, did I miss anything else?

CLERK: No, Your Honor.

THE COURT: All right. After this hearing, right

after this hearing, Mr. Mendez, I want you to report to

Ms. Lopez, she's a probation officer. She's going to give you

a directive as to when and where to report for a review of your

conditions of probation. We are at recess. Thank you.

MR. RAU: Thank you, Your Honor.

(Whereupon, the matter was concluded.)

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C E R T I F I C A T E

I certify that the foregoing is a correct transcript

from the record of proceedings in the above-entitled matter.

/s Cindy J. Shearman_____ July 1, 2019

CINDY J. SHEARMAN, RDR, CRR DATE

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