Petition for Writ of Certiorari — John Gregory Alexander Herrin, Petitioner v. United States

Supreme Court briefJul 25, 2019

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IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 2018

JOHN GREGORY ALEXANDER HERRIN,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT

OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY R. GALLAGHER

Federal Defender

♦MICHAEL DONAHOE

Deputy Federal Defender

Federal Defenders of Montana

50 West 14th Street, Suite 1

Helena, MT 59601

Telephone: (406)449-8381

♦Counsel of Record

SUBMITTED: July 25, 2019

TABLE OF CONTENTS

Pages

Order to Show Cause filed January 14, 2019

No. 19-30002, Ninth Circuit Court of Appeals

1-2

Order denying initial hearing en banc filed June 5, 2019

No. 19-30002, Ninth Circuit Court of Appeals....

Order dismissing appeal for lack of jurisdiction filed June 26, 2019

No. 19-30002, Ninth Circuit Court of Appeals.....................

Order denying defendant’s Motion to Suppress Evidence

filed January 10, 2019, No. CR 16-15-H-SEH,

United States District Court for the District of Montana,

Helena Division...........................................................

5-6

Transcript of Hearing on Motion to Suppress Evidence

held January 10, 2019, No. CR 16-15-H-SEH,

United States District Court for the District of Montana,

Helena Division...........................................................

7-130

Indictment filed October 26,2016, No. CR 16-15-H-SEH,

United States District Court for the District of Montana,

Helena Division...........................................................

131-139

Application for Search Warrant, Bates Nos. 322-327,

No. CR 16-15-H-SEH, United States District Court for

the District of Montana, Helena Division....................

140-145

Response in Opposition to Defendant’s Motion to Suppress

filed December 17, 2018, No. CR 16-15-H-SEH,

United States District Court for the District of Montana,

Helena Division...........................................................

146-163

Email dated December 5, 2018 from Deputy Federal Defender

Michael Donahoe to Assistant United States Attorney

Tim Racicot................................................................

164

Email dated December 6, 2018 from Assistant United States Attorney

Tim Racicot to Deputy Federal Defender Michael Donahoe ...

165

Case: 19-30002, 01/14/2019, ID: 11151646, DktEntry: 2, Page 1 of 2

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JAN 14 2019

MOLLY C. DWYER, CLERK

U S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

JOHN GREGORY ALEXAND HERRIN,

No. 19-30002

D.C. No. 6:16-cr-00015-SEH

District of Montana,

Helena

ORDER

Defendant-Appellant.

A review of the record suggests that this court may lack jurisdiction over the

appeal because the district court’s order, denying appellant’s motion to suppress,

entered on January 10, 2019, is not appealable as a final judgment or an order that

comes within the collateral order doctrine. See 28 U.S.C. § 1291; Midland Asphalt

Corp. v. United States, 489 U.S. 794, 798 (1989) (stating that finality requirement

generally “prohibits appellate review until after conviction and imposition of

sentence”).

Within 21 days after the date of this order, appellant shall move for

voluntary dismissal of the appeal or show cause why it should not be dismissed for

lack of jurisdiction. If appellant elects to show cause, a response may be filed

within 10 days after service of the memorandum.

APPENDIX - PAGE 1

Case: 19-30002, 01/14/2019, ID: 11151646, DktEntry: 2, Page 2 of 2

Failure to comply with this order may result in the dismissal of the appeal

for failure to prosecute. See 9th Cir. R. 42-1.

Briefing is suspended pending further order of the court.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: David J. Vignol

Deputy Clerk

Ninth Circuit Rule 27-7

APPENDIX - PAGE 2

Case: 19-30002, 06/05/2019, ID: 11320102, DktEntry: 12, Page 1 of 1

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

JUN 5 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

19-30002

D.C. No.

6:16-cr-00015-SEH-1

District of Montana,

Helena

JOHN GREGORY ALEXAND HERRIN,

ORDER

Defendant-Appellant.

No judge has requested a vote to hear this case initially en banc within the

time allowed by GO 5.2(a). The petition for initial hearing en banc (included in

Appellant’s reply to the order to show cause at Docket Entry No. 8) is therefore

denied.

FOR THE COURT:

MOLLY C. DWYER

CLERK OF COURT

By: Paul Keller

Deputy Clerk

Ninth Circuit Rule 27-7

APPENDIX - PAGE 3

Case: 19-30002, 06/26/2019, ID: 11345204, DktEntry: 13, Page 1 of 1

FILED

UNITED STATES COURT OF APPEALS

JUN26 2019

FOR THE NINTH CIRCUIT

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No.

19-30002

D.C. No.

6:16-cr-00015-SEH-1

District of Montana,

Helena

JOHN GREGORY ALEXAND HERRIN,

ORDER

Defendant-Appellant.

Before: CLIFTON, N.R. SMITH, and FRIEDLAND, Circuit Judges.

We have reviewed the responses to this court’s order to show cause why this

appeal should not be dismissed for lack of jurisdiction. We conclude that we lack

jurisdiction to review the district court’s interlocutory order. See 28 U.S.C.

§ 1291; Midland Asphalt Corp. v. United States, 489 U.S. 794, 798 (1989) (stating

that finality requirement generally “prohibits appellate review until after conviction

and imposition of sentence”). According, this appeal is dismissed.

DISMISSED.

APPENDIX-PAGE 4

Case 6:16-cr-00015-SEH Document 34 Filed 01/10/19 Page 1 of 2

FILED

1/10/2019

IN THE UNITED STATES DISTRICT COURT

Clerk, UrS. District Court

District of Montana

Helena Division

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

UNITED STATES OF AMERICA,

CR 16-15-H-SEH

Plaintiff,

ORDER

vs.

JOHN GREGORY ALEXANDER

HERRIN,

Defendant.

On December 12, 2018, Defendant filed a Motion to Suppress Evidence.1

The Court held a hearing on the motion on January 10, 2019. Upon the

record made in open court,

ORDERED:

Defendant’s Motion to Suppress Evidence2 is DENIED.

Doc. 13.

2 Doc. 13.

-1-

APPENDIX - PAGE 5

Case 6:16-cr-00015-SEH Document 34 Filed 01/10/19 Page 2 of 2

Trial remains set for January 22, 2019, at 8:45 a.m. at the Paul G. Hatfield

Courthouse, Courtroom I, Helena, Montana.

DATED this

of January, 2019.

SAM E. HADDON

United States District Judge

-2-

APPENDIX - PAGE 6

Case 6:16-cr-00015-SEH Document 44 Filed 01/18/19 Page 1 of 124

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MONTANA

HELENA DIVISION

UNITED STATES OF AMERICA

PI ai ntiff,

-vsJOHN GREGORY ALEXANDER HERRIN,

Criminal Docket

No. 16-15-H-SEH

Defendant.

TRANSCRIPT OF HEARING ON MOTION TO SUPPRESS

Heard in Courtroom Number I

Paul G. Hatfield United States Courthouse

901 Front Street

Helena, Montana

January 10, 2019

10 a.m.

BEFORE THE HONORABLE SAM E. HADDON

UNITED STATES DISTRICT JUDGE

TINA C. BRILZ, RPR, FCRR

Freelance Court Reporter

BRILZ COURT REPORTING, INC.

4956 Smallwood Court

Helena, Montana 59601

Proceedings recorded by mechanical stenography, transcript

produced by computer.

APPENDIX - PAGE 7

Case 6:16-cr-00015-SEH Document 44 Filed 01/18/19 Page 2 of 124

APPEARANCES:

PRESENT ON BEHALF OF THE PLAINTIFF, UNITED STATES

OF AMERICA:

MR. TIMOTHY J. RACICOT

Assistant U.S. Attorney

OFFICE OF THE U.S. ATTORNEY

P.0. Box 8329

Missoula, Montana 59807

PRESENT ON BEHALF OF THE DEFENDANT, JOHN GREGORY

ER HERRIN:

MR. MICHAEL DONAHOE

Assistant Federal Defender

FEDERAL DEFENDERS OF MONTANA

Great Northern Town Center

50 West 14th Street, Suite 300

P.O. Box 250

Helena, Montana 59601-0250

APPENDIX - PAGE 8

C&§&&a<Wr-00015-SEH Document 44 Filed 01/18/19 Page 3 of 124

The following proceedings were had:

THE COURT:

Be seated, please.

Madame Clerk, if you'll call this matter for us, please.

Good morning, everyone.

CLERK OF COURT: Yes, Your Honor.

This is the time the court has set aside for a motion for

suppression in Criminal Cause 16-15.

case before Honorable Sam E. Haddon, the United States of

America versus John Gregory Alexander Herrin.

This is a Helena Division

THE COURT: The United States is represented in this

matter today by Mr. Timothy Racicot of the U.S. Attorney's

Office. The defendant is represented by Mr. Michael Donahoe of

the Federal Defenders of Montana. The presence of the

defendant in the courtroom is noted.

And we have before the court a motion to suppress evidence

filed on behalf of the defendant.

The motion document itself, which is in the court file as

Number 13, characterizes the request as a pretrial ruling

suppressing any and all evidence showing that the defendant was

the individual who stole, converted, or embezzled money from

GardaWorld.

The essential position of the defendant, as the court

understands it, is that the defendant believes that the

government will either try to prove that someone, perhaps not

APPENDIX - PAGE 9

Cfi&-6QfflUtf-00015-SEH Document 44 Filed 01/18/19 Page 4 of 124

identified, stole money from Garda. And that the money that

was stolen belonged to the Federal Deposit Insurance

Corporation, or to a bank of that organization.

And from that premise, the case will proceed on the basis

that the government contends that the defendant was the thief

who took the money, and that it was his intent to deprive the

owner of the money permanently of its use and possession.

The defendant responds, in substance, that the government

should be precluded from introducing evidence related to the

who-stole-the-money issue, because, number one, the defendant

did not --or the government did not charge or indict the

defendant for stealing the money in the first instance.

And because of that omission, the defendant -- the

government is not entitled to introduce evidence related to the

theft of the money and who stole it, in substance, because he

wasn't indicted for that charge.

That the applicable statute of limitations has run on any

charge of the theft of the money. And because of the finding

favorably to the defendant on those two issues, the evidence

becomes, for purposes of the trial, inadmissible. And that any

statements made by the defendant after the theft occurred and

related to his or the defendant's activities after the theft

occurred, are irrelevant and are, therefore, more prejudicial

than probative as evidence in the case.

The defendant, as the court understands his position,

APPENDIX - PAGE 10

C&£&6G@U£lfr-00015-SEH Document 44 Filed 01/18/19 Page 5 of 124

advances alternate theories. One that someone, not necessarily

identified, stole the money from Garda. And that the other

activities that are sought to be proven do not in any way tie

the defendant as the person to the crime of the theft of the

money. To which, as noted, the government -- the defendant

makes the basic response that, "Wei 1, the defendant wasn't

charged as a thief, he wasn't charged with stealing the money."

And absent a charge of that substance, that the government is

not entitled to introduce evidence related to the circumstances

of the theft or of the activities of the defendant after the

theft occurred, whether in Las Vegas or other locations. And

that that evidence in its entirety should be excluded.

The government, of course, responds to all of this as

asserted by the defendant with the basic argument, number one,

that the government is not required to charge the defendant

with the theft of the money; and secondly, that evidence that '

the defendant was, in fact, the thief is relevant to proof of

at least the components of the crime charged, that the money

was, in fact, stolen. And secondly, that the defendant was

aware or knew that the money had been stolen when the money was

moved from Montana to Nevada.

The government had laid out in its brief in response to

the motion before the court what are said to be a rather

extensive set of facts that the government intends to assert or

rely upon as evidence in support of its claims against the

APPENDIX-PAGE 11

Cfi&-6Q8Utf-00015-SEH Document 44 Filed 01/18/19 Page 6 of 124

defendant.

The record is also, in the view of the court, clear that

the defendant does not directly claim a constitutional rights'

violation. And that from that, it follows that if this were to

be treated as a motion to suppress, that is, the matter before

the court were to be treated as a motion to suppress, that a

claim of constitutional violation of the defendant's rights

would be a significant or essential component of that

assertion.

The government responds, in part, at least, on the basis

that, "Wei 1, if the court 1ooks at this matter before the court

appropriately, it will conclude that this matter is not really

a motion to suppress in the classical sense, but it is, in

substance, a motion in limitation on grounds -- asserted on

grounds that the evidence that the government would intend to

produce is both irrelevant and prejudicial to the defendant,

more prejudicial than probative, and therefore, not appropriate

for admission."

The defendant -- the government has reasserted, as a

fundamental position, that, as noted, it is not obliged to

charge the theft of the money as a component of the offense

charged in the indictment. And that the settled law of the

Ninth Circuit supports the conclusion that the government is

not required to prove who stole the money in the first

instance.

APPENDIX - PAGE 12

C6^&a@Uyr-00015-SEH Document 44 Filed 01/18/19 Page 7 of 124

But, as a part of the government's intended proof, that

the fact that the money was stolen is relevant to the issues in

the case and the circumstances under which the money went

missing and the facts surrounding that are all a part of the

totality of the circumstances that the government asserts that

it is entitled to prove in support of its case-in-chief.

That is not intended, counsel, as a complete summary of

the statement of the positions of the parties, but it does

provide at least a summary background for where we are today.

Which brings us to the -- to a core question which is

before the court, and that is, in substance, whether this

motion that is before the court is a classical motion to

suppress, or whether, all factors considered, it should be

taken and evaluated and addressed as a motion in limitation, or

a motion in limine.

defendant; the latter being, in substance, the position

asserted by the government.

The former position being asserted by the

We have, in the view of the court, at the outset, the

question of how do we approach the issues that are presented by

the motion and address of those issues?

We have, of course, reviewed the briefs filed by the

parties.

The court has engaged in some substantial, even

extensive, additional research on the issues. And I think

there are some general principles that we can draw from the

case law that support the approach that the court has elected

APPENDIX - PAGE 13

C^6&<SUtf-00015-SEH Document 44 Filed 01/18/19 Page 8 of 124

to take.

One of those propositions, which quotes from a recognized

treatise on the subject of pretrial motions in criminal cases,

I quote:

is initially upon the party seeking suppression to go forward

with specific evidence demonstrating that the evidence is

tainted."

"When suppression of evidence is at issue, the burden

Here, there is not an assertion, per se, that the evidence

is tainted; rather, the defendant more broadly states that the

evidence is prejudicial and inadmissible, and therefore, for

that reason, should be excluded.

If the motion were, on the other hand, treated as a motion

in limitation, as the government asserts, then the classical

approach to address of such an issue would be to place the

burden upon the defendant, who is seeking to exclude the

evidence.

Whether the court addresses this as a motion in

limitation, or whether as a motion to suppress, the essential

and core issue, in the view of the court, remains the same:

Whether or not the statements that are said to be a part of the

evidence offered by the government --or represented to be a

part of the evidence offered by the government, whether those

statements and the activities related to those events should be

excluded.

And the court will address the issue as follows:

APPENDIX - PAGE 14

C£^6Q@Udf--00015-SEH Document 44 Filed 01/18/19 Page 9 of 124

I take it to be valid precedent that the defendant carries

2 the initial burden in going forward with evidence on these

3 issues. And we will proceed on that basis.

The defendant may call any witnesses that the defendant

5 seeks to have the court consider. We will proceed with

6 examination and cross-examination of those witnesses. After

7 the defendant's witnesses have been presented, the government

8 will then be entitled to go forward with its evidence, call

9 witnesses for examination and cross-examination as may be

10 appropriate.

I will emphasize to everyone, however, that the sequence

12 of presentation of evidence in this matter is not determinative

13 of the court's ultimate responsibility to make a decision.

We will take all of the evidence in the order the court

15 has outlined, and the court will then, at that point, when the

16 evidence has been presented, will undertake an analysis of the

17 evidence as a whole, the totality of the circumstances, and

18 will address and make a final ruling on the motion -- excuse me

--on the motion that is before the court.

Excuse me, counsel.

I think that sets the stage and the background.

Mr. Donahoe, you may proceed.

MR. DONAHOE: Thank you, Your Honor.

We would call Mr. Arnold Ailer.

THE COURT:

May we have the spelling of the person's

APPENDIX - PAGE 15

Ccfs@l&!D©liY-00015-SEH Document 44 Filed 01/18/19 Page 10 of 124

name, Mr. Donahoe?

MR. DONAHOE:

THE COURT: Yes.

MR. DONAHOE: Yes, it is:

Spell his name, Your Honor?

Please.

First name Arnold,

A-R-N-O-L-D.

THE COURT: Yes.

MR. DONAHOE:

THE COURT: All right.

Last name Ailer. A-I-L-E-R.

Mr. Ailer, come right up here to where the clerk is

standing at the front of the courtroom.

the oath for you, sir.

THE WITNESS: Yes, sir.

CLERK OF COURT:

THE WITNESS: Yes, ma’am.

She will administer

Please raise your right hand.

ARNOLD AILER, having been called as a witness on behalf of the

defendant, being first duly sworn according to law, was

examined and testified as follows:

THE COURT:

Mr. Ailer, have a seat over here at the

witness chair, please.

Mr. Donahoe, you may proceed.

MR. DONAHOE:

Thank you, Your Honor.

APPENDIX - PAGE 16

Ca%il^E0-Bli-OeOi5i9Ert'o(!«teQeient 44 Filed 01/18/19 Page 11 of 124

DIRECT EXAMINATION

BY MR. D0NAH0E:

1 iving?

technician for the Charter Cable. Cable guy.

And in a previous work life, did you work for GardaWorld?

Yes, sir.

And were you so employed in or around November of 2013?

Yes, sir.

And do you recall meeting with me to discuss your

employment there?

Yes, sir.

And you were present with your attorney?

Yes, sir.

And would you identify who your attorney is.

Mr. Nick Brooke sitting in the back back here.

Mr. Nick Brooke. And he's from Missoula?

Yes, sir.

And you've retained that counsel?

Yes, sir.

And you've discussed with your counsel coming forward to

testify before the court today?

Yes, sir.

Sir, were you the object of suspicion in the theft of

Sir, can you tell me where you live and what you do for a

Yes.

I live in Missoula, Montana. And I'm a commercial

APPENDIX - PAGE 17

Ca%il^E0-Bii-O6Ot5^Effl>oo»teQBient 44 Filed 01/18/19 Page 12 of 124

money from GardaWorld that apparently went missing sometime In

November of 2013?

yes, sir, yeah. Over --

Yes, sir. At this point, yes, sir, yeah.

I learned that,

A11 right.

Tell me what your job was at GardaWorld?

Started out there as a courier, driving a Dodge minivan, a

Caravan for picking up Providence medical.

tests for cancer and whatnot and all the blood tests.

It's -- they do the

So I had -- did that for the longest time, and then they

got me to driving the armored trucks from there, yes, sir.

So, did you drive the armored trucks around Missoula?

Yes, sir.

And what was the purpose of driving around Missoula?

would you do?

have routes, and you'd drive around to the businesses and

whatnot and make the pickups and the deliveries.

What

What were your duties?

You drive around Missoula to make all your stops.

They'd

Okay.

So you'd pick up money, currency, coin, that sort of

thlng?

Yes, sir.

And likewise, you'd deliver currency and coin to some

places; correct?

Yes, sir.

APPENDIX - PAGE 18

Ca%£L£!^-l^0@0i5*QE$oc»feQment 44 Filed 01/18/19 Page 13 of 124

And you could maybe stock ATMs?

Yes, sir.

Okay.

Now, on November 20, 2013, did you have some sort of

rendezvous with another GardaWorld truck early in the day?

sir, it would the -- what they called the fed truck from Helena

-- from here, yes, sir. Yep.

Yes, sir. With the date what we discussed before, yes,

All right.

Would you tell me and explain to the Judge concisely what

the fed truck is?

that was either for, like, Missoula from the bank here. Yes,

sir. Yeah.

As far as I understood it, they brought over all the money

And then they give us what was supposed to be delivered in

Missoula, and then take off. Yes, sir. Yeah.

And then they'd go on some other route?

Yes, sir.

Okay.

Yes, sir. Yeah.

So, you would meet up with this fed truck?

Yes, sir.

Now, do you recall, as you're here today, actually having

that meeting in November of 2013?

I don't remember that day.

But I was driving that day,

APPENDIX - PAGE 19

Ca&fcl£KJfclF0e0i5^flo<MteQftient 44 Filed 01/18/19 Page 14 of 124

because they showed me the paperwork on It.

But as far as

remembering the day, no.

working. Yes, sir.

and accept money from that other truck?

That's the first stop. Yes, sir, yep, for that route, yes,

sir.

And what time would that have been, approximately?

Maybe around 6, I think it was.

had to be at the office on that day, like, five something.

So fairly early in the morning?

Yes, sir.

Okay.

It would be like any other day

At some point in time, did you meet with this other truck

Yes, sir. Yeah.

It would have been in the morning.

Because I remember you

And can you tell me mechanically how this works out that

things are transferred from one truck to another?

was already there, the other truck would just back up to them,

back-to-back, yes, sir.

So, the doors on each truck open?

Yes, sir. At the back there.

And do the doors go up and down, or do they go

side-to-side?

They would just open out, yes, sir, like the regular door.

Okay.

Yes, sir.

It would -- if they were already there, whoever

APPENDIX - PAGE 20

Ca^il^S0-Bii-DeOt5^Efl>o(!ateQ&ient 44 Filed 01/18/19 Page 15 of 124

So, like shutters in a window?

2 A

Yes, sir.

You just open it up, yes, sir (witness

indicating).

4 Q

Okay.

And then the trucks sort of marry together by backing into

one another?

7 A

Yes, sir.

8 Q

Is there a purpose to that?

9 A

I guess to be close, yes, sir, as far as I knew.

10 Q

When the transfer is made and on this particular occasion,

Yeah.

where were you sitting in your truck?

12 A

Driver's seat.

Yes, sir.

I was the driver that day.

13 would be, yes, sir, in the driver's seat.

14 Q

And do you have a helper on your truck?

15 A

Yes, sir.

16 Q

All right.

And does he have a name or a title?

18 A

They call him -- what did they say? The jumper or

You've got the guy that's in the back.

messenger.

20 Q

The messenger?

Yes, sir.

22 Q

Okay.

So who was your messenger on this day we're talking about;

do you remember?

Yeah.

It was Chris was his name, young fellow.

The only

APPENDIX - PAGE 21

Ca^il^E0-l^li-O6Ot5-t9Ert>o(D®teQffient 44 Filed 01/18/19 Page 16 of 124

reason I remember that was from showing the forms that I was

shown there -- was it last Friday? Yes, sir, yep.

So you had ameeting with the government?

Yes, sir.

With governmentcounsel?

Yes, sir.

And you refreshed recollection and remembered that --

Well, they showed me who it was.

If it was him, that was who I was with that day," yes, sir.

I said:

"Well, yeah.

All right.

Do you remember anything about this individual, Chris?

Was he a long-term employee? Had he worked with you for a long

time. Was he new?

He was the newest one of the people that worked at the office

here in Missoula, but I don't know how long he'd already been

-- you know, I don't know his -- I can't remember, you know,

how long he'd been there.

your truck, is there anything that goes on in terms of people

communicating with one another?

handset in your hand. You just kind of keep your eyeballs out

looking, you know.

He was newer, but I can't say how long he'd been with us.

So when this transfer is made from the Helena fed truck to

Well, if you're the driver, you have the little radio

So that would have been your job?

APPENDIX - PAGE 22

Ca&fcl£M4&taOOi5^floratoQftient 44 Filed 01/18/19 Page 17 of 124

Yes, sir.

All right.

Does the messenger do anything with the bags? Does he

call out numbers? Anything of that nature?

out how many pieces we got, yes, sir.

At the end of it when we start to take off, yeah, he calls

Okay.

So this money that's transferred from one truck to

another, how is it packaged? Is it in cellophane? Is it in

paper bags? Is it -- can you describe that to me.

bags. And then they got the coins in these cardboard boxes.

And the coins that got the different colors for the coinage on

it; quarters and nickels and dimes and pennies and whatnot.

Plastic bags.

I believe it's plastic bags, sealed plastic

Okay.

So, do these bags have numbers on them?

Yes, sir. Yeah. They got the serial numbers on them

yes, sir.

what's moving from one truck to the next truck?

Yes, sir.

All right.

So there's some kind of manifest or inventory concerning

Is there a process that you guys go through, your

messenger and you as the driver and perhaps the people in the

other truck, to ensure that there's an accurate exchange?

APPENDIX - PAGE 23

Ca&il^S8-l^ii-Deot5-tSEffl>o(3ateQftient 44 Filed 01/18/19 Page 18 of 124

jumping or messenger to tell you how much pieces you got.

do al1 that other stuff between them in the back with it

with that other paperwork, yes, sir.

They

As the driver, you just keep track of how many pieces is

coming and going is all you do.

Okay.

So I would assume that after -- and correct me if I'm

wrong -- after the exchange is made, the doors to each truck

are closed, and they go on their separate ways?

Yes, sir.

Okay.

And is that what happened in November of 2013, you went on

Well, as the driver, you just wait for the -- whoever's

your way?

Yes, sir. Absolutely, sir. Yep.

And what would you do after that?

You just do your route. The route for that day.

All right.

Anything unordinary about this particular day?

No, sir.

The fed truck?

No, sir.

Did you hear later that day that money maybe was

erroneously transferred to your truck?

No.

That I can remember, no, sir.

No, sir.

APPENDIX-PAGE 24

Ca%il^ia-ias-OeOt5^Eflo(D®teQ0ient 44 Filed 01/18/19 Page 19 of 124

2 A

Nobody called you and told you that that day?

That day, that I can remember, no.

Like I said, if any

calls would come from -- that I know from working there, any

calls that would come would go to the manager.

5 would call us.

But I don't remember getting any calls that day

Did you subsequently learn that money may have been

transferred erroneously to your truck?

9 A

No.

10 Q

Nobody ever told you that?

No, sir.

12 Q

And then he

from anybody.

7 Q

No, sir.

Did anybodyendeavor

ever to question you about that from

GardaWorld?

14 A

Yes, sir.

There was -- well, I don't know if it was for

that, or whatever.

investigator fellows come in to the office there at one time

there, yes, sir.

But, yeah.

They had some fellows come --

And they were from the GardaWorld company?

19 A

That's what Bruce Reese, the manager, said, yes, sir.

20 Q

All right.

Bruce Reese was your manager in Missoula?

22 A

Yes, sir.

23 Q

Okay.

And these other folks that apparently worked for

25 GardaWorld that were going to investigate, did they come from

APPENDIX - PAGE 25

Ca%il^S6f-Bii-OeOt5^Ert>ooHfeQBient 44 Filed 01/18/19 Page 20 of 124

afar?

I don't know. They just said they worked for the company.

Okay.

So you don't know their point of origin?

No.

Did you speak with these individuals that wanted to

investigate something, apparently, that you were not aware of?

Briefly, yes, sir.

So, can you tell me about that.

Oh, yeah.

monies missing.

I said, well -- I gave them my lawyer's

business number.

"Yeah. Call him. We can set something up

with it."

No, they just said they wanted to talk about

Yes, sir.

No, sir.

A11 right.

Did you ever subsequently meet with them?

No, sir.

Did you ever meet with a detective from the Missoula

police department named Stacy Lear?

No, sir.

All right.

No, sir.

So, did you later learn that money was missing from the

truck? A lot of money?

I said, from the manager, Bruce Reese, and Aaron Johnson was

No.

Because we just always hear about money missing, like

APPENDIX - PAGE 26

Ca&il£WJ&toOOi5^WooatoQfiient 44 Filed 01/18/19 Page 21 of 124

the assistant manager there. They would just -- office gossip.

They would say:

going on."

"Ah, we heard this was going on or that was

A11 right.

So, I'd like to be clear about this.

was fairly routine for money to turn up missing?

you'd hear about something goings on in Helena or somewhere

else.

day.

I wouldn't say routine.

Yes, sir.

Are you saying it

It's just every now and then

But I wouldn't say -- it wasn't, like, every

A11 right.

x’* •

Once in a while?

Yes, sir.

So, when these investigators came from GardaWorld and

wanted to speak to you, you just made an assumption it was

about money that may have been missing, and you really had no

inclination to talk to them without a lawyer?

Yes, sir.

And it just shut down there?

Yes, sir.

All right.

Now, in November of 2013, at any time, did you take any

Every once in a while, yes, sir.

money from GardaWorld unauthorized?

No, sir.

Have you stolen any money from GardaWorld?

No, sir.

APPENDIX - PAGE 27

Ca&iL£Eef-Bii-0©0l5^Ert»o(3]6tfeQBient 44 Filed 01/18/19 Page 22 of 124

No, sir.

Did you have attempted contact from the police in

Missoula, the local police, trying to speak with you about such

activity?

Yes, sir.

And can you tell me about that.

Got a call from -- I don't remember who it was.

somebody -- I know it was a lady from -- from Missoula Police

Department, and that's when I just called my lawyer.

"Hey, I got somebody calling me from Missoula Police

Department."

I said:

And he just took it from there.

Okay.

Yes, sir.

Fair enough.

So, did you ever have a sit-down with that person?

No, sir.

Nobody ever made inquiry of you directly about any money

that was missing from GardaWorld?

It was

No, sir.

MR. D0NAH0E:

I don't have anything further.

Thanks.

THE COURT: You may examine, Mr. Racicot.

MR. RACICOT: Thank you, Your Honor.

APPENDIX - PAGE 28

Cg&fcl£IW£r0881&i6ffl3cte®tJment 44 Filed 01/18/19 Page 23 of 124

CROSS-EXAMINATION

BY MR. RACICOT:

Good morning, Mr. Ailer.

Good morning, sir.

You talked with Mr. Donahoe about the fed truck that would

come from Helena to Missoula. And was that every Wednesday

that the fed truck would come from Helena to Missoula and then

go on to Kali spell?

Yes, sir, I believe so, yes, sir.

And did you handle the local Missoula route with some

frequency that met with the fed truck? In other words, did you

work a lot of those Wednesdays where the Garda truck in

Missoula would meet the fed truck from Helena?

in Missoula, yes, sir. As far as I can remember, yes, sir.

for Garda, you were doing courier services driving a van around

picking up materials from hospitals and things like that?

Providence people directly.

Kalispel1, meet them up there at the hospital.

off big ole blue boxes with the tests in them, and the dry ice.

And then I'd drive back to Missoula and then meet another

courier, hand that off to them, and then go to Garrison and

meet a fellow.

Not too much, no, sir. Versus the other routes that I did

So, most of the initial time, especially that you worked

I met up with the panel people that worked for the -- the

I'd start in Missoula, drive up to

And they'd hand

Then drive back to Missoula again, and -- yes,

APPENDIX-PAGE 29

Ca&il^E0-(er-43891^6ffi4ctK®tment 44 Filed 01/18/19 Page 24 of 124

sir.

That was the route Monday through Friday.

So, for the larger period of time that you worked for

Garda, your route involved meeting people from Providence and

other medical installations and picking up the results of

medical tests, blood tests, and that sort of thing?

Yes, sir.

And then later on, and for a shorter period of time that

you worked for Garda, you handled the armored truck deliveries?

Yes, sir. And did that, too. Yes, sir.

And still worked as what you were calling a courier, as

well

Yes, sir.

-- doing the medical routes?

Yes, sir.

And one thing, Mr. Ailer, you and I have to be careful not

to talk over one another, so the court reporter can get down

what I say, and then what you say, and then back and forth;

okay?

Yes, sir.

That's okay.

Sorry.

Mr. Donahoe asked you if you ever took money from Garda in

November of 2013.

Did you ever take money from Garda at any

time while you were employed for Garda?

No, sir.

Did you ever take money out of an ATM that you were

No, sir.

APPENDIX - PAGE 30

Ca&fcl£RMcr4^1^l89ct»fctlment 44 Filed 01/18/19 Page 25 of 124

servicing for Garda?

No, sir.

Did you ever take any other property that you were

supposed to courier for Garda and take that property?

No, sir.

Mr. Donahoe asked you about the trucks backing up close to

one another. And the back of those trucks both had double

doors; correct?

Had a big ol' door, yes, sir.

one or two doors if they had two, back the trucks up close

together?

Yes, sir.

Was the stuff that you were transferring, the bags of

money and the boxes of coin, heavy?

Coin is, yes, sir.

Is one of the reasons the trucks were backed up close to

one another in order to make that transfer easier, because of

the weight that you were transferring back and forth?

I assume so.

And was that also maybe to ensure safety and security

during the transfer?

Yes, sir.

As opposed to, say, parking a couple hundred feet away and

The -- what we drove here in Missoula had the one door.

So, you'd open your one big door, they would open their

That would make it easier, yes, sir.

That would make sense, yes, sir.

APPENDIX-PAGE 31

Ca&il£B6£r4S991&£®9ctK®timent 44 Filed 01/18/19 Page 26 of 124

wheeling handcarts back and forth, or something like that?

2 A

Oh, yes, sir. Yes, sir.

3 Q

You said that as the driver on this -- whoop, excuse me --

4 on this local route, that as the driver, your job was basically

5 to look around, you know, keep watch, essentially?

6 A

Yes, sir.

7 Q

And then when the transfer was over, to take note of how

8 many pieces, how many bags of money and boxes of coin your

9 truck had accepted from the other truck?

10 A

Yes, sir.

And it's your understanding that your messenger, working

12 in concert with either the driver or messenger from the fed

13 truck, would actually be checking serial numbers on the bags to

14 try to make sure they got the right stuff?

15 A

Yes, sir.

16 Q

Okay.

So, you had specific bags and boxes you were supposed to

18 get from the fed truck?

19 A

Yes, sir. Yes, sir.

20 Q

But your job as the driver was just to know the gross

number.

How many things you were getting?

22 A

Yes, sir.

23 Q

Mr. Ailer, at the end of the day, these Wednesdays when

The total, yes, sir.

24 the fed truck was making its run, you would meet the fed truck

25 again at the end of the day; is that right?

APPENDIX - PAGE 32

Ca&il£RMeP<»81&3Bffl3ctJl®tlment 44 Filed 01/18/19 Page 27 of 124

Yes, sir. There at the office.

And then you would give them things that now they were

supposed to take back to Helena?

Yes, sir.

And those would be things you had picked up from other

stops on your route?

Yes, sir.

For instance, if you're meeting with the fed truck and

then one of your other stops is a bank because you're going to

service an ATM, you would take whatever money is left in that

ATM and put in the new amount of money; correct?

Yes, sir.

And then you would take that leftover money, and at the

end of the day, you would transfer that back to the fed truck,

and they would take that back to Helena?

Yes, sir.

Okay.

And do you remember meeting with the fed truck at the end

of the day on November 20th of 2013?

No, sir, I do not.

Do you assume that you did, because that was standard

procedure for the fed truck run?

before they did, you would just take off on your next courier

route.

No, sir.

Yes, sir. Yeah. You would either -- if you got back

But I can't remember that particular day, no, sir.

APPENDIX - PAGE 33

Ca&tL£M£r-0®81&}BlSac treatment 44 Filed 01/18/19 Page 28 of 124

Okay.

So you don't remember any -- meeting with them and having

any discussion where they're kind of freaked out about the fact

that they've misplaced these bags of money; this money is

missing; they don't know where it is. You don't remember any

conversations to that effect?

No, sir.

And you also don't remember any phone calls from them

earlier in the day after your first meeting with them where

they said:

you the wrong bags," or, "we're missing some bags up here in

Kali spell, would you check your truck"?

"Hey, would you check your truck. We think we gave

You don't remember any conversation like that?

No, sir.

Like I said, they would have to talk to -- any

calls we'd ever get would be from Bruce Reese, the manager

there. And I don't remember getting any calls from him. So

no, sir, I didn't get any calls.

money went missing on November 20th, 2013?

No, sir.

Do you have any personal knowledge about how much money

was in the bags that went missing?

No, sir.

So other than the fact that you've now been discussing

November 20th, 2013, with law enforcement and with Mr. Donahoe,

Do you have any personal knowledge of how many bags of

No, sir.

APPENDIX - PAGE 34

Ca&§l£M46H»91^^cfc0fctlment 44 Filed 01/18/19 Page 29 of 124

did November 20th, 2013, stick out to you in any way?

No, sir.

And when you were -- when the Garda investigator attempted

to interview you after November 20th of 2013, did you know it

was specifically about that day?

No, sir.

Do you think back then you would have known that that's

what it was about? Would you have heard, as you say, these

rumors that money had gone missing and would you know that's

why they were there then, and you just don't remember now?

just that -- money is missing, you know. And, you know, that's

where they found it, or whatever happened with it, that kind of

stuff.

like that, no, sir.

you, am I correct that you did not refuse to be interviewed,

you just said:

interview me, talk to my lawyer and set it up through my

lawyer"?

Yes, sir.

And why did you do that?

Well --at least my family have always been that way, when

it comes to -- like I said, you know, if something's wrong with

my electrical, I call an electrician.

No.

No, sir.

Because like I said, Mr. Reese never did talk about

But I don't remember anything saying dates and anything

And when the Garda investigator attempted to interview

"Here's my lawyer's card.

If you want to

Certainly. Yes, sir. Yep.

If something's wrong

APPENDIX - PAGE 35

Ca&fcl£K-<er0881&£®3ctR®tlment 44 Filed 01/18/19 Page 30 of 124

with my plumbing, I call a plumber.

When I have people ask me

questions that, you know, I don't know what's going on, you get

yourself a lawyer, yes, sir.

some kind of investigation, you could maybe get in trouble or

either on the job or with law enforcement, you just wanted to

make sure that you protected yourself and went through a

lawyer?

worried in context of that, yes, sir, I don't know what's going

on.

law, so I'm going to get my lawyer's number.

So, basically, are you saying that because this involved

Yeah.

But I wasn't worried about myself, but I'm just

And this seems to be involving something to do with the

Yes, sir.

Okay.

And Mr. Ailer, at some point around this same time frame

I think it was September of 2013, you had occasion to take a

fairly large quantity of cash into a bank to make a bank

deposit; is that right?

Yes, sir.

Tell me about that.

The one that started my family's business again, like we

had in Virginia, yes, sir, so I was putting it in there.

Because, heck, nowadays you can't do anything without -- it's

all online anyway and all that kind of stuff,

really -- it ain't like it used to be.

you know --

So, you can't

So you always got to,

APPENDIX - PAGE 36

CaA£l£B8£r43@91&^^ct)S®timent 44 Filed 01/18/19 Page 31 of 124

So I'm going to break that down a little bit.

had a cleaning business in Virginia?

Cleaning and maintenance business, yes, sir.

And what kind of cleaning and maintenance would your

family do in Virginia?

jobs anybody ever needed done, yes, sir.

of the thing?

Yes, sir.

And at this period of time here in Missoula, your family

wanted to restart that business?

Yes, si r.

And you had some money just that you or your family had

saved?

Yes, sir, as our savings, yes, sir.

Was that money money that you had taken from Garda or out

of an ATM machine?

No, sir.

So, you decided to take this money into a bank to open a

bank account?

Q . And when you took the money into the bank to open the bank

account, what did the bank tell you about the money?

Residential and commercial.

Your family

And pretty much any odd-end

So, cleaning houses; cleaning office buildings, that sort

Yes, sir.

Business bank account, yes, sir.

Wei1, nothing. They opened up my account for me. Yes,

APPENDIX - PAGE 37

Ca&fcl£M-<cr-0881&iBtftactR®tlment 44 Filed 01/18/19 Page 32 of 124

sir.

Okay.

And did they do any special paperwork as it related to the

fact that you brought in money? Cash money?

there for to open up the account, if I remember right. And

that was it. They told me I'd get my -- get your card and all

that kind of stuff later, you know, with it, like they do when

they mail it to you.

account?

I think it was around 25,000. Yes, sir.

And did you hear anything else from either the bank or law

enforcement about that money?

Missoula Police Department. Yes, sir, yeah.

happening with that money?

said they needed to talk to me pertaining to the money I put in

the bank.

contact with my 1awyer."

No.

No, sir.

I just filled out a couple little things

And how much money did you take into the bank to open the

Down the road, that's when that lady called me from the

And what, if anything, did you know about what was

At that point, I had -- I didn't even know when she just

I was, like, okay.

"Well, I'm going to get in

Then, like I said, after that I just -- whatever he told

me was going on, is what was going on. Yes, sir.

Okay.

APPENDIX - PAGE 38

Ca&ll£M£n»01&l6tftacte®tlment 44 Filed 01/18/19 Page 33 of 124

And I want to make sure I don't ask you anything that your

lawyer told you.

But eventually, did you get into any trouble regarding

that deposit?

yes, sir.

So, you didn't get charged with any crime?

No, sir.

You didn't get arrested or convicted of anything?

No, sir.

And eventually, you got the money back and you were able

to leave it in that account, if you wanted?

Yes, sir. Yes, sir.

And does your family have that cleaning business?

Yes, sir, they do.

No, sir.

They gave me my money back, my family's money

MR. RACICOT:

That's all the questions that I have.

Thank you.

THE WITNESS:

Oh. Yes, sir.

THE COURT:

I have one question.

Or Mr. Donahoe, do you have a redirect?

MR. DONAHOE:

No. Thank you, Your Honor.

Thank you. Go right ahead.

THE COURT:

Mr. Ailer, when did this event involving

the $25,000, or thereabouts, of family money take place? That

is, that you took it to a bank and put it in the bank?

APPENDIX - PAGE 39

Ca&tlO0£rO®81&3BStactafctiment44 Filed 01/18/19 Page 34 of 124

THE WITNESS:

I want to say -- I want to say August

or September, I believe.

THE COURT: Of what year?

THE WITNESS:

THE COURT: Was it before this missing-money event

2013, yes, sir.

occurred on November 20 of '13?

THE WITNESS: Oh, yes, sir.

THE COURT:

THE WITNESS: Yes, sir.

THE COURT: All right.

Several months before that?

That's all I have.

You may step down, sir.

THE WITNESS: Yes, sir. Thank you.

(Witness excused from the witness stand.)

THE COURT: Call your next witness, please.

MR. D0NAH0E:

I will call Stacy Lear.

Judge, this examination wi11 involve an exhibit I've

marked as Defense 501.

I've served copies on Mr. Racicot, or a copy. And I've

provided copies to the clerk.

THE COURT: Wei 1, is there a copy for the court's

reference?

MR. D0NAH0E:

There is, Your Honor.

Certainly.

(Clerk of Court delivering a document to the court.)

THE COURT: Thank you.

APPENDIX-PAGE 40

Calsi^?l©-tr^oei^6ffM>nstoaement 44 Filed 01/18/19 Page 35 of 124

CLERK OF COURT:

Come forward, please.

Raise your right hand, please.

STACY LEAR, having been called as a witness on behalf of the

defendant, being first duly sworn according to law, was

examined and testified as follows:

CLERK OF COURT:

witness stand.

DIRECT EXAMINATION

Go ahead and have a seat at the

BY MR. DONAHOE:

for a living.

the City of Missoula Police Department.

And how long have you been so employed?

Since August of 2006, just over 12 years.

And were you so employed in or around 2013?

Yes.

And you were actively working cases in Missoula at that

time?

Yes, sir.

Do you know a person, or did a person come to your

attention named Arnold Ailer?

Ma'am, could you tell me where you live and what you do

I live in the City of Missoula,

And I'm a detective for

Arnold Ailer, Junior, yes.

APPENDIX-PAGE 41

Calsi/«?l©-tr^)Otl^Sff^>ns}(t®ement 44 Filed 01/18/19 Page 36 of 124

And was he a Missoula resident at the time, do you know?

I can't say for certain, because I was never able to

establish a residential address, but he had P.0. Boxes in that

area.

Okay.

And what was your contact with Mr. Ailer?

voicemai1 and one phone cal1.

My only actual contact with him, as I recal1, is one

Okay.

So why did he come to your attention, Mr. Ailer?

Initially, in September of 2013, I had been assigned to

investigate a report on an allegation of theft in which

Mr. Ailer was identified as a suspect.

And who was the victim of the theft?

Garda International, I think is the name of the company.

And is that an armored car company?

Correct.

That works all around Montana; correct?

Yes.

Yeah.

And what was the nature of the concern with Mr. Ailer?

Specifically, in that case from September, approximately

$30,000 had gone missing from ATM pickups between April and

August of 2013.

suspicious deposit of 20,000 -- $25,000 cash into a new bank

And in October 2013, Mr. Ailer had made a

APPENDIX - PAGE 42

Calsi/«?l^tr^)0til^6ffl^nstit®ement 44 Filed 01/18/19 Page 37 of 124

account.

case.

And so he was presumed to be the suspect in that

3 Q

Okay.

So, based on a suspicious transaction report, Mr. Ailer

became the object of suspicion of the theft of the ATM money?

6 A

Correct.

7 Q

And was that resolved?

8 A

Ultimately, yes.

9 Q

And how so?

10 A

Prosecution was declined.

So, you made -- I'll just use the phrase prosecution

status report to the county attorney?

13 A

Yes.

Essentially, I do an investigation, and then I refer

the case for charging.

charging decision.

Then our county attorney makes the

And in that case, they declined charges.

And do you know who the county attorney was at the time?

17 A

The county attorney who declined the case?

18 Q

Yes.

19 A

Okay.

That would be Jason Marks.

And he was an assistant, or a deputy?

22 A

I think he was senior deputy county attorney at that time.

23 Q

At that time?

Okay.

So, that resolved that investigation?

APPENDIX - PAGE 43

Calsi/«?l(|Ltr^)Oei&^Sffl0nstoaement 44 Filed 01/18/19 Page 38 of 124

Correct.

And you worked it through as an ordinary case.

declined. And that was the end of that?

Correct.

Now, subsequently, did you have --or desire to have

contact with Mr. Ailer concerning other missing money from

GardaWorld?

Can you rephrase that question.

Did you become aware at some time in your duties as a

detective that money had gone missing from GardaWorld in

November --

Yes.

-- of 2013?

Yes, sir.

Did Mr. Ailer surface as a possible suspect, I'll say, in

connection with that matter?

Yes.

And did you endeavor to contact Mr. Ailer to speak with

him about that?

case.

mixing it up with the previous case.

It was

I don't think I tried to contact him as a part of that

Or at least if I did, I can't recall.

But I may be

Okay.

Did you at some point in time decide as the investigator

in this second matter that we're talking about from November of

APPENDIX - PAGE 44

CabB^frtr-eoOl&^BStonatowment 44 Filed 01/18/19 Page 39 of 124

2013, that it might be prudent to take a peek at phone records

of Mr. Ailer?

3 A

Yes, I did.

4 Q

And did you author and submit to the court an application

for a search warrant to review such records?

6 A

I di d.

7 Q

And did -- have I discussed that with you --

8 A

Yes, sir.

9 Q

-- in a previous meeting?

Did you have an opportunity to review that?

I di d.

So, tell me what the orientation was of the search warrant

application? Were you suggesting that Mr. Ailer might have

been a suspect in this second matter?

15 A

Yes, I was.

16 Q

And why?

17 A

On the basis that he -- he was one of the employees who

18 was working when the second case money went missing.

That in

the previous case I investigated him with, he had provided

fictitious addresses and fictitious reasons for why he had come

across the money that he had deposited.

the intervening time since the second theft, he had submitted

his resignation.

And also because in

So all of those factors together combined to make me think

that he may be a suspect in that case.

APPENDIX - PAGE 45

Cds6^&ir-eoOl&3Bffl0nfiftaament 44 Filed 01/18/19 Page 40 of 124

)

And what would have been the purpose -- I mean, I know

it's kind of obvious -- but in your mind as an investigator

detective, what would have been the purpose of trying to take a

peek at the phone records?

theft on November 20th, he had his personal cell phone with

him, which was a violation of policy.

whether or not he may have contacted someone to come take money

from him or help him. Or after the fact, if he had discussed

having come into a large sum of money with anyone.

Defense Exhibit 501.

So I was looking to see

Now, showing you -- or I hope you have it with you there,

Do you have that?

Well one of the other issues was that during the second

I don't see any exhibits up here.

MR. D0NAH0E: Can I approach, Your Honor?

THE COURT: Yes. Of course.

(Mr. Donahoe approaching witness with a document.)

(BY MR. DONAHOE) Ma'am, showing you that exhibit marked

as 501 for identification purposes, would you turn to the last

page and tell me whether that's your signature? Well, I guess

the page before that.

(Witness reviewing document.)

On page 4, the application, that is my signature.

That is your signature?

Yes, sir.

APPENDIX-PAGE 46

Calsi/«?l©-tr-€0til&i6ffM>nstit®ement 44 Filed 01/18/19 Page 41 of 124

Do you recognize the document?

I do.

Did you prepare it?

I did.

And was it submitted to the court?

Correct.

And was the warrant issued?

Yes.

Did you obtain the phone records?

I did.

And was there anything worthwhile there for you?

No.

Wei 1, to the extent to which there was nothing in there to

indicate that he had come into this sum of money that was

missing in this case.

conversations in which he indicated to someone that they needed

to be very careful with their Christmas money.

have a lot of money.

They didn't

MR. D0NAH0E: Your Honor, I would move the admission

Specifically, I recall text message

of Exhibit 501.

MR. RACICOT:

THE COURT:

;

No objection.

Five oh one is received without

objection.

page; that would be Bates 323.

(BY MR. D0NAH0E)

So, ma'am, could you turn to the second

APPENDIX - PAGE 47

Cals^l©--tr-«0til^6ffM>ngt©eement 44 Filed 01/18/19 Page 42 of 124

So, if you could focus there on paragraphs 3, 4, and 5.

Read that to yourself.

you're through.

And tell me when

(Witness reviewing document.)

A11 right.

So, the basic narrative here, if you stay with me, we're

talking about a sum of money that went missing on November 20th

of approximately $390,000?

Correct.

And the messenger, who the court knows, at least by

function, that day on Mr. Ailer's truck was a new guy?

Correct.

And Mr. Ailer was the experienced driver in his truck?

Correct.

And based on everything that you knew to include the prior

suspicion of the other theft in October, was it your conclusion

that --at least initially, that an erroneous transfer of bags

may have been made to Mr. Ailer's truck?

Initially, yes.

And thatwas,apparently,

Mr. Ailer?

It would have seemed to have been.

All right.

Three through 6.

Yes, sir.

That was thebelief.

acrime

of opportunity for

And that was, basically, the gist of the investigation and

APPENDIX - PAGE 48

CakB^&tr-eotll&JStftonatoMment 44 Filed 01/18/19 Page 43 of 124

-i/

why you wanted to look at those phone records?

Correct.

Now, subsequent to all of that work that you did, did you

learn later that there had been suspicious activity reports

filed in relation to another individual?

Yes.

And did you --do you have any particulars in terms of

knowledge or memory about those reports?

jurisdiction requesting those reports, I believe on all the

employees who could have been involved at the time. And in

response, I received records showing that Mr. Herrin had

gambled over a hundred thousand dollars in Vegas, I believe,

around January 2014. And had also made a deposit, I think, of

about $30,000 into a bank account, and then withdrawn about

$60,000 from a bank account, all within January of 2014.

I recall -- I reached out to an FBI agent in my

Okay.

So, similar investigative paradigm to Mr. Ailer; correct?

Correct.

All right.

And as a result of that, did the focus of the

investigation shift to the other side of the hill here to

Helena?

Correct.

And did you cease and desist with your investigation?

APPENDIX - PAGE 49

CalsBAfl?l&DPS80ll>9-3feWiO®fcument44 Filed 01/18/19 Page 44 of 124

I did.

Mr. Ailer was no longer a suspect in your mind?

I had nothing to support him being a suspect in the second

case.

Okay.

Did you ever make any connection between Mr. Ailer and

Mr. Herrin?

Not that I'm aware of, no.

MR. D0NAH0E:

I have nothing further.

Thanks.

THE COURT: You may examine, Mr. Racicot.

MR. RACICOT: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. RACICOT:

Good morning, Detective.

Good morning.

I'm Tim Racicot from the U.S. Attorney's Office in

Missoula.

Detective Lear, am I correct that when you first began the

investigation into what culminated in Mr. Ailer's deposit of

cash, Garda suspected that Aaron Johnson might have been

involved with the missing sum of money that had accumulated

from April to August or September of 2013; correct?

That's correct.

So when you first talked to the manager of Garda, Bruce

APPENDIX - PAGE 50

CalsiARl&eWDQOlDP-SRg^i ©Sfcument 44 Filed 01/18/19 Page 45 of 124

Reese, in Missoula, he said:

"We think it might be Aaron

Johnson who's been taking this money, because Aaron Johnson's

been present at the ATM every time the money's gone missing"?

Correct.

So, was it your understanding that when Garda services

these ATM machines, they essentially have to balance up the

money that was delivered the last time, the money that the

customers have since come into the bank and taken out of the

ATM, and the money that's left?

That's correct.

And when they were trying to make that balance, they were

coming up short for several instances over the course of

several months in the spring, summer, and early fall of 2013?

Yes.

And so initially they said:

Johnson," and that's sort of what people thought initially

until Mr. Ailer went into the bank to make this cash deposit?

That's correct.

And then it was the circumstances surrounding his cash

deposit, including what you characterized as his fictitious

reasons for making the deposit and his resignation from Garda

that made people think, well, maybe it was Arnold Ailer and not

Aaron Johnson?

November.

"We think it's Aaron

Yes. Although the resignation did not come until

APPENDIX - PAGE 51

CalsS^?16ef>®80to?-3£Hn ©Bfcument 44 Filed 01/18/19 Page 46 of 124

The resignation from Garda didn't come until later?

2 A

Correct.

3 Q

Okay.

And did you learn he had resigned from Garda to take a job

5 with Charter Communications to lay cable for them?

6 A

I don't recall who he went to work for, but I knew he had

resigned and already had a job waiting.

8 Q

Okay.

So didn't just leave and then get a job; he left to go to

a new job?

That's correct.

12 Q

Did you know that he's still at that job today?

13 A

I do not know.

14 Q

So, as part of the investigation into this first batch of

missing money from ATM machines, you actually prepared a search

16 warrant in that case to seize that money; correct?

17 A

I did.

18 Q

And that was for purposes of wanting to have that actual

cash around to maybe be able to compare bill denominations,

serial numbers, that sort of thing?

Correct.

And eventually, that money was returned to Mr. Ailer when

the prosecution was declined?

24 A

Correct.

25 Q

And then you got another warrant, but that related to the

APPENDIX-PAGE 52

Ca!s§^?l&€C>®80kS-3ferai CRjfcument 44 Filed 01/18/19 Page 47 of 124

money that went missing off the truck on November 20th of 2013?

Correct.

And that was for phone records --

Yes.

-- for Mr. Ailer's phone?

Yes, sir.

And essentially, the only thing that even sort of relates

to money are text messages from Mr. Ailer to someone saying:

"Don't spend too much money around the Christmas holiday"?

That's correct.

Okay.

In your search warrant application for those phone

records, Mr. Donahoe referred you to paragraphs 3, 4, and 5 in

particular, but paragraph 4 is where Mr. Molzhon, spelled

M-0-L-Z-H-0-N, who is the messenger on the Missoula truck, said

he thought he accidentally accepted those missing bags?

That's correct.

But didn't know one way or the other; is that correct?

I don't think I could speak to what he knew exactly, but I

can tell you later when I received the actual supporting

documents from Garda, I found discrepancies between his oral

statement, his written statement, and what I had been told in

the initial investigation.

Okay.

So he -- he may have believed that at the time, or he may

APPENDIX - PAGE 53

©afcument 44 Filed 01/18/19 Page 48 of 124

--he may have accepted them or not. There's no way to really

tell.

Okay.

And that's a good answer to my not-very-good question.

But basically, your statement in paragraph 4 seems pretty

definitive that Mr. Molzhon said:

those bags.

"I accidentally accepted

Mistakenly accepted those bags."

But after you were able to review a broader array of

evidence, you were able to determine it might not have been so?

Correct.

Okay.

And in paragraph 5 you make a statement that Mr. Ailer

being a four-year Garda employee would be experienced with the

route and would have known if they were getting the wrong bags.

And again, was that a conclusion based on the evidence you had

at the early stage of the investigation?

That's correct.

And was that based on all of the evidence that's now been

presented to you, some of which you're -- and then other

evidence that you wouldn't necessarily be aware of, is it fair

to say that that was more of a speculative statement based on

the evidence you had at that time?

knew.

I think it would always be speculative to say what he

Okay.

APPENDIX - PAGE 54

Calsi^l^toeiS-SBH Dereahmfent 44 Filed 01/18/19 Page 49 of 124

You mentioned that Mr. Ailer had a personal cell phone

with him when he was driving his Garda route on November 20th

of 2013.

Do you know if any other Garda employees had a personal

cell phone with them on that day?

I do not know.

Do you know if Garda employees generally would take

personal cell phones with them on their routes, despite the

fact that they were not supposed to by Garda policy?

I do not know.

There was nothing in your investigation that revealed that

one way or another?

No.

Okay.

MR. RACICOT:

Detective.

Thank you.

THE COURT:

That's all the questions I have,

Mr. Donahoe, you may redirect limited to

cross.

MR. DONAHOE: Thank you.

REDIRECT EXAMINATION

BY MR. DONAHOE:

policy of the cell phone.

Ma'am, I just wanted to talk about that question about the

Did you determine, at least insofar as your investigation

APPENDIX - PAGE 55

Ca!s§/8?l&&fl-t)O0$$-3BH D©ffi®bm&nt 44 Filed 01/18/19 Page 50 of 124

of Mr. Ailer was concerned, that there, one, was a policy of

GardaWorld not to carry a cell phone during work time?

that I ever received a copy of that policy.

I was told that by the Garda investigators.

I don't know

Okay.

So, you never saw it written down?

If I did, I can't recall.

And if you didn't see it in writing, can you tell me what

the policy was? Could one carry a phone and keep it off or in

airplane mode, or anything like that? Or was it just a strict

ban, physically you cannot have a cell phone in your possession

during work time?

(Witness reviewing documents.)

According to what I wrote in my search warrant, the

employees were restricted by the company policy from having

personal cell phones in their possession while on shift.

But that, again, was what I was told.

All right.

So that's the determination that you made?

Correct.

So did you determine that Mr. Ailer had, in fact, violated

that policy?

show that he appeared to have had his phone with him that day.

If that policy exists, then their cell phone records do

Okay.

APPENDIX - PAGE 56

Ca!s§/8?l&&fM)0@$$-3©H Derjabmfent 44 Filed 01/18/19 Page 51 of 124

So, making the assumption there was such a policy, the

records show that he actually had had his phone?

be by him based on the context that I saw.

effect:

Something like that, yes.

And to whom was that directed?

I don't know that I knew the name.

a romantic partner, possibly, in California is my recollection.

That his phone was certainly in use.

And there was a text message that said something to the

"Don't spend too much money at Christmastime"?

But it appeared to be

Okay.

Did you ever undertake to do anything to investigate that

other party in California?

I did not.

Thank you.

And it appeared to

THE COURT:

Did I understand correctly that,

Detective Lear, that once you obtained this search warrant and

looked at the phone records of Mr. Ailer, your department

concluded that there was nothing of value to the department in

considering Mr. Ailer as a robbery suspect?

(No response.)

THE WITNESS:

THE COURT: You mentioned the "don't spend money at

Christmas," but a lot of people are -- some, at least, may be

cautioned to such potential extravagance.

THE WITNESS:

I can't say that it would make me

APPENDIX - PAGE 57

D©i£@bmfent 44 Filed 01/18/19 Page 52 of 124

eliminate him as a suspect solely on that basis.

THE COURT:

Well, I'll say it differently:

Did you

find anything in this phone record search that your department

conducted that you utilized to take further action against

Mr. Ailer?

THE WITNESS:

THE COURT:

No, I did not.

Thank you.

You may step down, ma'am.

(Witness excused from the witness stand.)

THE COURT: Your next witness, Mr. Donahoe.

MR. DONAHOE: Thank you, Your Honor.

I would call Mr. Curtis McAlpin.

THE COURT:

Sir, come in -- come right up here to the

front of the courtroom where the clerk is standing.

administer the oath for you, sir.

CLERK OF COURT:

She will

Please raise your right hand.

CURTIS LYNN McALPIN, having been called as a witness on behalf

of the defendant, being first duly sworn according to law, was

examined and testified as follows:

CLERK OF COURT:

Go ahead and have a seat in that

witness chair.

THE COURT:

Have a seat here at the witness chair,

please, sir.

APPENDIX-PAGE 58

CE&6Afl;reW4M)0aB4sa»y B®aaht^it44 Filed 01/18/19 Page 53 of 124

THE WITNESS:

THE COURT:

Thank you, Your Honor.

Would you state your name for the record,

pi ease.

THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT:

Curtis Lynn McAlpin.

Spell your last name, please.

M-C capital A-L-P-I-N.

Thank you, sir.

DIRECT EXAMINATION

BY MR. DONAHOE:

a living.

Montana. And right now I am a job coordinator for the Helena

Prerelease Center.

And how long have you been so employed?

About three years.

And previously, were you employed by GardaWorld?

I was.

What is GardaWorld?

It is an armored car company.

And did you have duties of delivering currency and coin to

various locations throughout Montana?

Yes, sir.

On November 20, 2013, did you make a run from Helena to

Missoula that you recall?

Sir, could you tell me where you live and what you do for

I live at 2350 North Mitchell Gulch Road, East Helena,

APPENDIX - PAGE 59

Cc&^££W-eil)0$§4S£l¥ &5Ktahl®¥it 44 Filed 01/18/19 Page 54 of 124

I did.

And in that -- was that a Garda vehicle?

3 A

Yes.

4 Q

And did it have coin and currency that needed to be

transported to Missoula and other locations on the other side

of the mountain?

7 A

Yes.

What time did you arrive in Missoula that day; do you

recal1?

10 A

I would say it was seven'ish in the morning.

So, when you arrive in Missoula, what's the first thing

you do?

13 A

We usually complete the Missoula branch of Garda, and we

14 do a cash and coin transfer.

15 Q

Now, prior to coming to court today, did you and I have a

sit down for a few minutes with my investigator, Mr. Hopkins?

17 A

Yes.

18 Q

And do you recall us discussing this transfer on this

particular day, November 20, 2013?

20 A

Yes.

And where did it take place? Do you recall telling me?

22 A

It's on Front Street in front of First Interstate Bank.

So you went to First Interstate Bank.

Did you have to make a drop at that bank that day?

25 A

We did.

APPENDIX - PAGE 60

Cdte/&WJW-IM)0fcB4sSnr &®raafafc®)t44 Filed 01/18/19 Page 55 of 124

And did you, in your memory, start to make that drop at

the bank before the other Garda Missoula truck came to meet

you?

go ahead and make the delivery to the bank.

So that delivery would consist of what?

Unloading coin and currency and put it on a hand pushcart

into the bank. >

correct?

Correct.

Now, did you have a helper that day?

I did.

And he's titled a messenger?

Correct.

And who was it?

Clay Olson.

And is Mr. Olson still with us?

He passed away.

And do you know when?

It was a couple years ago, I believe.

All right.

Yes. They were not there upon our arrival, so we had to

And again, we're talking about First Interstate Bank;

And did you know Mr. Olson?

I've known him for quite a long while.

And he was a Helena resident?

APPENDIX-PAGE 61

CdteA&MW-fttoaBiSBfir Bmahi^it 44 Filed 01/18/19 Page 56 of 124

He was.

And you guys went toschooltogether?

No.

his ex-wife.

He was several years older.

I went to school with

I'm sorry. Yeah. That was the story.

So that's how you became friends with Mr. Olson?

Right.

A11 ri ght.

But he was a long-standing friend?

He was more an acquaintance than a friend.

I associated

with him off and on.

Through the relationship with the other person?

Right.

Okay.

Uhm-hum.

So, back to First Interstate Bank, the material that you

took to deliver to the Missoula truck and to other banks that

we'll talk about in a second, came from where?

Out of our truck.

All right.

It came from the Helena branch.

So, that truck was loaded up here in Helena?

Correct.

And does it contain Federal Reserve funds?

Yes.

And when are those funds obtained from Federal Reserve?

Usually, on the over-the-road route, they're obtained the

APPENDIX - PAGE 62

CsIteAfl;MJW4M)0*54sBflr Baraalwit 44 Filed 01/18/19 Page 57 of 124

day before.

All right.

So, this truck that you were driving has up till now been

identified as the fed truck.

Correct.

Does that make sense?

Yes.

And is it likewise sometimes called the OTR truck?

It is.

And what's OTR stand for?

Over the road.

So, you were in charge of the over-the-road truck on

November 20, 2013?

I was.

And did you load that truck, personally?

I did that morning.

And did your helper help you to load that truck?

Yes.

Was there any other GardaWorld person in Helena who helped

you load that truck?

No.

After these charges were brought --or actually, before

these charges were brought, did you have an opportunity to look

at a videotaping of your loading of that truck?

Yes.

APPENDIX - PAGE 63

Cclte/8;KW-IM)0*54saiy &©a8htw?it44 Filed 01/18/19 Page 58 of 124

And when did you do that, sir?

Oh, it was several times,

after.

taping --or the videotape.

And what was the purpose of reviewing it?

To see if the actual money lost was actually loaded onto

the truck.

It was, I believe, about a week

The Garda security came from out-of-state to review the

All right.

When you say "money lost," what money was lost?

There was three bags of what they call fit money.

for ATMs.

And do you know approximately how much?

I believe it was 370,000.

Somewhere in that neighborhood?

It was

So, did people have contact with you from GardaWorld

wanting to discuss that missing money?

Yes.

And was part of that discussion involving looking at this

videotape?

Correct.

Did you discern anything or conclude anything on your own

from reviewing that tape?

12 movements into the truck.

I had checked out 12 packages of ATM money. And I counted

So, it seemed to you after reviewing the tape, what?

APPENDIX - PAGE 64

Cdl®Afl;KJW4M)0*B4saHr toaah^it 44 Filed 01/18/19 Page 59 of 124

That all the ATM money that was due to be delivered on

that route was placed into the truck.

Now, inside your OTR truck there are lockers; correct?

Correct.

And did you have a personal policy about storing money in

those lockers?

Yes.

Can you tell me about that, sir.

All the fed money that came out of the Federal Reserve

that was packaged in their wrap, was placed on the floorboard

of the currency room, And the lockers are on the driver's side

and the passenger's side.

I personally always -- always put the Kali spell delivery

ATM money in locker 13.

I never deviated from that.

Ever.

money that went missing?

Correct.

So, when you met up with the truck in Missoula to make the

exchange in front of First Interstate Bank, was the locker

money accessed at that time?

No.

Do you recall, personally, as a matter of personal

knowledge, putting that ATM money in locker 13?

truck.

Now, when you say the Kali spell ATM money, is that the

You know, I never really deviate from that when I load the

I've been on that truck for six years.

I've always put

APPENDIX - PAGE 65

Cd4ett;MW4M)0«B4sanr e&raafrftSit 44 Filed 01/18/19 Page 60 of 124

on that particular route, Kali spell's in locker 13.

rarely ever deviated from that.

It very

All right.

And don't take this as a challenge in an offensive way,

but are you working here on your habits, or on your memory? In

other words, do you remember putting the money into the locker

13 that day?

Not a hundred percent, no.

But you do recall, at least from looking at the videotape,

putting the correct number of bags, loading the correct number

of bags from Helena into the OTR truck, initially?

movements into the truck.

earmarked for Kali spell?

Missoula and Kalispel1.

Missoula and Kali spell? Okay.

Yeah. We counted 12 out of the vault, and I counted 12

And that would have included those 12 bags, the ATM money

Would you have any occasion to look in the locker when you

were making the transfer from the OTR truck, your truck, to the

Missoula truck?

No.

So that -- those funds or those bags would have remained

in that locker and would have never been accessed until you got

to Kali spell?

Correct.

APPENDIX-PAGE 66

Cdte/8;MW4M)0*B4sGHr Baraatawit 44 Filed 01/18/19 Page 61 of 124

Was there anything that struck you in memory as unusual

about the transfer from your truck to the Missoula truck on

November 20th, 2013?

to make the transfer --or the delivery to the bank prior to

our delivery to them.

Other than they were later than average. And we decided

Okay.

So I want to talk about that a little bit.

That would have been a slight deviation from normal

protocol?

there just shortly after we're there, so it's usually pretty

quick,

del i veri es.

There's no set protocol.

Normally, the Missoula truck is

But if we did a transfer, then we'd start our

All right.

But in this particular instance that particular day, you

have specific memory of starting the First Interstate drop

before the Missoula truck arrived?

Correct.

Now, mechanically, how would that have worked?

The truck, or --

Wei 1, in other words, were you in progress of making this

First Interstate Bank drop, and then the Missoula truck showed

up?

Yes.

APPENDIX-PAGE 67

CsBeA&reW-GtOfcSlsaHr

Bank, and then start to engage to the Missoula truck?

Correct.

So, can you describe to me in pictorial form, in words,

what that looked like?

were coming out with returns. And we threw our coin -- throw

our currency into the truck, threw our return coin into the

truck. Then proceeded on. Getting the Missoula truck,

basically, back-to-back.

44 Filed 01/I8/19 Page 62 of 124

So, did you terminate that delivery to First Interstate

We had came out of the bank, we'd made our delivery. We

And then, I was on the bumper transferring what we needed

from the inside to the Missoula truck.

after that Missoula truck job transfer was done, was there

other activity that had to occur inside First Interstate Bank?

signed and make sure the piece count was right. And could you

-- get ready to continue our route.

So, after that interruption, was there further activity

Yeah. We had to go back in and get all the paperwork

All right.

So, in your memory, there definitely was an interruption

v./j

in the First Interstate Bank delivery?

Correct.

Would the back of the truck, your truck, have been open

for the First Interstate delivery?

We had to open it to pull the material out.

APPENDIX - PAGE 68

Cste^!PSW$4)0$S4SS}¥ BottahttSit 44 Filed 01/18/19 Page 63 of 124

Was there any time, once you pulled your materials out,

that that truck, your truck, was left unattended while you were

inside First Interstate Bank?

The vehicle was secured, and we both exited the vehicle.

So, the two of you, you and your helper, had gone into

First Interstate Bank?

Correct.

And the truck was freestanding? Was it running?

Yes.

And was there anybody in the truck?

No.

Had the Missoula truck yet arrived?

No.

So, the truck was unattended for how long?

Well, total, it was almost a half-an-hour from start to

finish.

All right.

I -- you got to break that down for me, sir.

From start to finish of the loading the Missoula truck?

No. The Missoula truck come -- came in between.

In the middle of that half-an-hour?

Yeah.

would show the time I arrived at the bank and the time that

Missoula showed up.

I would have to look at the route sheet, because it

All right.

APPENDIX - PAGE 69

Cc(!t/&PW-B4)0$5JS&¥ BwaatoWit 44 Filed 01/18/19 Page 64 of 124

But that would -- so, that's good enough.

Those records would give you a pretty good estimate of how

long your truck was unattended?

Correct.

Okay.

I get that.

Is it policy of GardaWorld to have the truck unattended?

No.

Was it unattended for more than ten minutes?

Yes.

After you loaded up the Missoula truck, you stopped the

First Interstate delivery, the Missoula truck did what?

returns in, and then we proceeded with the transfer of what

they needed to conduct their route.

So then, they take off.

Correct.

To put it in the vernacular.

Correct.

And they're going to go do their day's work?

Correct.

And what did you do on their departure, on the Missoula

truck's departure?

After they came, backed into our truck, after we put our

Is that --

Wei 1, we secured the doors.

We organized what we just threw in. We -- the truck is a

APPENDIX - PAGE 70

44 Filed 01/18/19 Page 65 of 124

cubical. And we needed to -- quarters go on one side,

Pennies

and nickels go on one side; dimes go on one side, And we

needed to clear a path so we could conduct our business in

there.

Okay.

But at some point, you went back into First Interstate

Bank?

Correct.

And was the truck unattended once again?

I believe so.

All right.

So, on two occasions at this initial Missoula stop, your

first stop of the day, the truck was left unattended?

Correct.

And I guess we could figure out the times later.

So, after you were concluded in First Interstate Bank,

what did you do next?

the time we made our departure, and headed to our next stop.

did you have occasion to open locker 13 to look at that money?

No.

And in your view, as we sit here today, that money was in

that locker? You had put it in there?

We marked our total pieces out.

Put it on our log sheet,

Now, at any time during that whole process in Missoula,

Correct.

APPENDIX - PAGE 71

Ce!teAfl;WW4M)0*54sa«r Bxsraaht^it 44 Filed 01/18/19 Page 66 of 124

So, after all business in Missoula is concluded, where do

you go?

Kali spell.

would go to St. Ignatius and Ronan.

Depending on which week it was, we head up towards

One week, we'll go to Poison; the off week, we

A11 right.

So -- and we could figure that out, probably, by

documentation.

But the gist of it is, is that you have further duties,

and you head north?

Correct.

And what's your ultimate destination?

Our 1ast stop is Kalispel1.

And depending on the week, you're going to make two or

three stops in between Missoula and Kali spell?

Correct.

At any time in your memory and of personal knowledge, do

you remember your truck being unattended between Missoula and

Kali spell on November 20th?

And I had -- Clay was brand new on the truck.

a day before.

This is Mr. Olson?

Correct.

I -- I would say yes.

Or 1ast town is Kalispel1.

I believe we stopped in Poison.

Never been on it

You could not send an unknown guy into anywhere.

APPENDIX - PAGE 72

Cdte/lkWW-OGoaBJsBHr BffitaafrftSit 44 Filed 01/18/19 Page 67 of 124

You know, Garda pretty much set us up to fail from the

2 get-go.

3 Q

Now, ultimately, I guess we can just fast-forward.

You arrive in Kalispel1; correct?

5 A

Correct.

6 Q

Your OTR truck, your fed truck, you and Mr. Olson, and you

7 have business that you have to conduct in Kalispel1; correct?

8 A

Correct.

9 Q

At some point, was it necessary for you to access the

10 money in locker 13?

Yes.

12 Q

And what happened when you went to do that that day?

13 A

Opened up locker 13, and it was empty.

14 Q

And what did you do?

15 A

I didn't panic, but I was rather concerned.

It was rather

16 disconcerting that it wasn't there.

17 Q

Did you contact anybody?

18 A

Yes.

I called our branch manager, Craig Stevens, and

19 advised him that the OTR ATMs for Kalispel1 were not in the

20 truck.

And how did you do that? Did you do that with a cell

22 phone?

23 A

Yes.

24 Q

Was it your cell phone?

25 A

No.

It was the Garda's cell phone, truck's cell phone.

APPENDIX - PAGE 73

Cdte/&WW-IM)0fiB4sa«r Brafaaftrefit 44 Filed 01/18/19 Page 68 of 124

So, a business cell phone --

2 A

Yes.

-- that's provided to you? And it goes on the run with

you?

Yes.

Were you given any instructions?

Told us to completely, thoroughly go through the truck to

make sure that it wasn't somewhere misplaced. We searched the

truck high and low. Could not find it.

All right.

So, did you ultimately conclude business up in Kali spell?

Yes.

And then where did you go?

Went back to Missoula, picked up the returns that the

Missoula branch had from their deliveries, and we head back to

Helena.

A11 right.

When you went back to Missoula, was there discussion about

this money from locker 13?

wasn't inadvertently misdelivered.

couldn't find the money on the truck.

they didn't have it.

Yeah.

Prior, I had called them to make sure that it

And we did that when we

And just make sure that

And they stated that they didn't have it.

So we picked up our returns, and came back to Helena.

All right.

APPENDIX - PAGE 74

CdS®Afl;KJiW-IM)0*B4sB»}r &8&ahT@¥it 44 Filed 01/18/19 Page 69 of 124

So, just for clarification purposes, when you say

"misdelivery," are we talking about what you and I just here

3 today discussed, your previous rendezvous with the Missoula

4 truck that morning?

5 A

Right.

6 Q

So, the theory being, or the notion being that perhaps the

7 bags were loaded onto Mr. Ailer's truck?

8 A

When I was looking back at the possible -- any possible

9 scenario where that money could have went, I had to, okay, was

10 it misdelivered or not appropriately loaded on the truck? So I

made sure about the Helena branch check the currency bins.

12 went ahead and called Missoula, made sure it wasn't

13 misdelivered to them.

And then, I just basically just checking any possible

15 thing that could have happened.

16 Q

Sure. Just using logic; right?

17 A

Uhm-hum.

18 Q

So, if we go back to you looking at the video, that was,

19 likewise, part of your logic:

"Did we put it on the truck?

20 Let's check the video"?

Uhm-hum.

22 Q

Correct?

23 A

Correct.

24 Q

So there could have been something that went awry in

25 Helena? You posed the question to yourself; correct?

APPENDIX - PAGE 75

CsUett;IPffW-M)0«54sa»}r

2 Q

Yeah.

44 Filed 01/18/19 Page 70 of 124

Yeah.

And then you posed the question:

There could have been an

erroneous transfer in Missoula; correct?

4 A

Correct.

5 Q

And then a third option was what?

6 A

Thievery.

7 Q

That somebody --

8 A

Entered the truck while it was unattended, and took the

funds.

figure that truck was left unattended?

And through the course of that day, how many times do you

12 A

Probably five times.

Varying degrees of time?

14 A

Ri ght.

15 Q

Amounts of time?

Have you ever had occasion -- how long did you work for

GardaWorld?

18 A

Approximately six years.

19 Q

And in the course of your experience there as an employee,

did you ever lock your keys in the truck?

Once.

22 Q

And what did you do?

23 A

Myself and the defendant, we made one call to a locksmith,

see if they would open up the truck.

They refused to do so.

25 And we had to kind of figure it out.

I had left the driver's

APPENDIX - PAGE 76

Qnftaho*it44 Filed 01/18/19 Page 71 of 124

side vent open for airflow to go in. And we managed to get a

-- I can't remember if it was a mop handle or a broom handle,

pushed it through the screen mesh, and hit one of the rocker

switches on the control panel that unlocked one of the doors.

Okay.

So, you're going to have to break that down a little bit.

7 There's an access point outside the vehicle?

8 A

Yes.

9 Q

And what's that called?

10 A

You have doors on the passenger --on the driver's side,

there's one driver door. The passenger's side had two doors.

12 One is the main door that goes into the cab. And right behind

13 that is a turret door,

It is -- what they --a drum, which you

14 just spin around, You push a button on the wall inside there,

15 and it opens up the door outside.

And then, there was a back door.

17 Q

So you were able to gain access with some kind of broom

18 handle or stick?

19 A

Right.

Each door is opened from the outside either with a

20 key, other than the turret door, and the front driver and

passenger door could be opened with a master key. And the

22 turret door has to be hit with a rocker switch that's on a

23 control panel on the dashboard.

24 Q

So, you, obviously, have one of the keys when you're

25 operating the truck?

APPENDIX - PAGE 77

Cd4e/^PS-N:/-©iD0$5JsSiy Baraalmsit 44 Filed 01/18/19 Page 72 of 124

Either myself or the messenger does.

Right.

The master key is usually kept in the branch manager's

office.

And that would be in --

Helena.

--in Helena? Okay.

And where's the other key?

So, on this particular occasion, though, you did gain

access to the truck?

Yes.

Did that ever occur on another occasion?

Not when I was on the truck.

No?

And whose idea was it to access this stick?

Wei1, between Mr. Herrin and I, we came up with it.

don't know who thought of it.

And that was several years ago.

with the thought plan.

But -- the access was gained.

I don't remember who came up

All right.

And just for clarification, this discussion you and I just

had about getting into that truck when the keys were locked in

there, was not on November 20, 2013?

thought it was October, but I know I worked a certain amount of

time after that.

It was on the Missoula route. You know, the exact date, I

APPENDIX - PAGE 78

Cdfte/8;KJIt/4>fiO®B4saw &®aahte¥it 44 Filed 01/18/19 Page 73 of 124

So, it was October of that year?

It was -- it was either October or November.

know I worked up until right before Christmas, and they

terminated my employment.

Because I

And that's where I was going to go next.

Were you spoken to about this missing money?

Several times.

And did you openly and freely discuss the situation with

GardaWorld?

Yes.

With the investigators?

And the -- I want to say the district manager out of

California, I believe.

Okay.

So, somebody even a little higher up?

Yes.

And you made yourself available for interview?

Absolutely.

And told them everything you knew?

Yes.

Perhaps everything we discussed here today?

Yes.

You had nothing to hide?

Nothing at all.

Did you take the money --

APPENDIX - PAGE 79

Ccte^PS-IW-Bi!)0$54s£jy

44 Filed 01/18/19 Page 74 of 124

No.

--on November 20th, 2013?

Did not.

Were you ever accused of that?

Yes.

By whom?

The individual that came in from another district.

to say Gonzo or Gonzalez, or --

Right. And was that in confrontational style?

It was more of an interrogation than an interview.

demanded his money.

And you denied having it?

I di d.

And you denied taking it?

I di d.

And you deny taking it today?

I do.

Did you ever determine to your own satisfaction what

happened to this misplaced money?

No.

Thank you, sir.

MR. D0NAH0E:

I have nothing further.

THE COURT:

Mr. Racicot, you may examine.

MR. RACICOT: Thank you, Your Honor.

I want

APPENDIX-PAGE 80

RgxefcQertent 44 Filed 01/18/19 Page 75 of 124

CROSS-EXAMINATION

BY MR. RACICOT:

Good morning, Mr. McAlpin.

Good morning.

Mr. Donahoe asked if you took the money on November 20th

6 of 2013, and you said no.

Did you ever take money from Garda?

No.

Did you ever take money out of an ATM that you were

servicing on behalf of Garda?

I've assisted other branches on servicing ATMs.

But did you ever take money that you were supposed to be

acquiring in the course of your employment and take it for your

own use and benefit?

No.

When you locked the keys in the OTR truck and had to find

another way in, do you recall where you were?

I was at the First Interstate Bank in Kali spell.

And you said the defendant, Mr. Herrin, was working with

you that day?

Yes.

That was not the day that all the money went missing,

though; correct?

That's correct.

And you talked with Mr. Donahoe about using a mop or broom

APPENDIX-PAGE 81

Cc(&e/&ES-tei'-©00$§-3BH RfiX&tQfrtent 44 Filed 01/18/19 Page 76 of 124

handle to get into the truck by hitting one of the rocker

switches and that unlocked one of the doors.

Where is the roof vent that you had to -- or the vent that

you had to put the handle through?

driver's side roof vent.

roof? How do you do that?

hood to the cab of the truck, and then position yourself on the

box. And I believe the vent was facing backward.

days, depending on the weather, you would have one facing

forward; one facing backward.

One of these roof vents?

Right.

The heat and the air conditioning was horrible in the truck.

So we used -- for the ventilation. And I believe the one on

the driver's side was facing backward towards the rear of the

truck. And we were able to put the broom handle in.

There’s two roof vents in the cab. We got into the

So, do you need a ladder or something to get up on the

You would climb up the front bumper of the truck, up the

On certain

So you get a cross-vent or draft inside the cab.

The rocker switches are on the middle of the dashboard in

between the seats, and there's probably 15 to 18, 20 maybe,

different rocker switches. And we were able to hit one of them

and pop a door.

through that vent and hit one of those rocker switches to

So you were able to put that handle, broom or mop handle,

APPENDIX - PAGE 82

CoHe/&Eg-f4r,-©00$5-3BH RfflebQfttent 44 Filed 01/18/19 Page 77 of 124

unlock one of the doors?

Correct.

And that's what happened with you and the defendant that

day in Kali spell?

Correct.

You talked with Mr. Donahoe about, basically, trying to

hypothesize how the money might have gone missing. And so you

called back to Helena and said:

vault?"

"Did we leave it in the

Correct?

Correct.

And then you said:

and see if we seemed to be making the right number of motions

to 1oad the bags on the truck"; correct?

manager pulled the video out of the -- their armored bay.

Right.

Correct.

And then, going back to the day that the money goes

missing, you figure:

the Missoula truck, we'll call them and see if they have it"?

Correct.

Now, does that seem unusual to you, because you would

have, in all likelihood, put those bags in locker 13 and never

opened it again till you got to Kali spell?

"Wei1, 1ater on, we'll check the video

Yeah. That was after this Garda security or branch

That was more during the investigative phase?

"Well, we better call Missoula. We met

APPENDIX - PAGE 83

CstteAfcreW-GOOiB-SBH RSX&tQOtent 44 Filed 01/18/19 Page 78 of 124

Correct.

So, no matter how unusual it might have been, you wanted

to make sure that for some reason, you didn't forget to put

them in locker 13 that day, and then accidentally give them to

the Missoula truck?

Correct.

However extraordinary the options are, you're just trying

to run through all of the options that would lead you to the

ultimate conclusion, which is somebody took it?

Correct.

Okay.

You searched your truck?

Yes.

Now, you talked about these 12 -- you see yourself making

12 motions with ATM bags when you're loading the truck?

Correct.

But the truck has a lot more than just 12 bags on it;

correct?

Oh, yes.

How many items, approximately, are you going to be hauling

over on the fed truck day to Missoula and, ultimately,

Kali spell?

Over 500 pieces.

Over 500 pieces total?

Correct.

APPENDIX-PAGE 84

Cctee/&PW-<0oO$5-3BH Rex&tQfttent 44 Filed 01/18/19 Page 79 of 124

nickels, and pennies, et cetera?

3 A

Correct.

4 Q

Is it heavy?

5 A

That truck ran heavy all the time.

6 Q

Are the boxes of coin heavy?

7 A

Very.

8 Q

And then, you're picking things up.

Other than from the

Missoula truck at the first stop, generally, when you're

dropping things off, you're also picking things up?

Yeah.

We pick up bank returns.

12 Q

Leftover money from ATMs, lefover coin?

13 A

Yeah.

The coin from every -- every delivery we make, the

bank sends out a shipment to be redeposited, coin and currency.

15 Q

So that's bags of money, boxes of quarters, dimes,

So even as throughout the day you're unloading some of

these 590 pieces, you're also acquiring additional pieces?

17 A

Correct.

So it's -- not to be coy -- but garbage in/garbage out

sort of throughout the day?

20 A

Absolutely.

Other than with that first Missoula truck?

22 A

Correct.

Because you settle up with them at the end of the day?

24 A

Correct.

25 Q

So, you talked about this instance with Mr. Herrin in

APPENDIX - PAGE 85

Cst!§/&!PS-IM-<&00$5-3®H Rex&tQftfent 44 Filed 01/18/19 Page 80 of 124

Kali spell, that's on the OTR truck, the fed truck day?

Yes.

Did you work that route with Mr. Herrin very often?

Yeah. We worked that -- the Billings route and the

Missoula route for quite a long while.

called "staging the truck"; correct?

Correct.

And so, you were sort of in charge of staging the fed

truck for the run from Missoula to Kali spell?

Correct.

Did the people that work with you on the fed truck after

they worked with you a while, have a pretty good idea of how

you staged your truck?

Yes.

So they would have a pretty good idea, whoever was on that

route with you with any frequency, where you put those

Kali spell ATM bags, in locker 13?

Correct.

You talked with Mr. Donahoe about the truck being

unattended by both you and Mr. Olson about five times on

November 20th, 2013.

He was my co-driver.

And where you put things in the truck, that's sometimes

It never deviated.

In addition to the first stop at First Interstate Bank

which got interrupted by the Missoula truck, there was three

additional instances just in Missoula where your truck was

APPENDIX - PAGE 86

Ccte§/&!PS-NY-<a00$5-3BH RfiXetQfrfent 44 Filed 01/18/19 Page 81 of 124

unattended; correct?

2 A

Correct.

3 Q

And it was for approximately, give or take, 30 minutes

4 each of those incidents; correct?

5 A

Correct.

6 Q

Now, that's againstcompany

7 A

Correct.

8 Q

Why did you and Mr. Olson violate company policy by

policy; right?

9 leaving the truck unattended?

10 A

They cut our manpower from three to two. And expected us

to do the same amount of work in the same amount of time with

12 less manpower, and they gave me a new guy and a weak guy.

13 Q

Would you leave the truck unattended, even when you worked

14 with other people, just for the sake of efficiency?

15 A

Just Mr.

16 Q

When you worked with Mr.Herrin?

17 A

Yeah.

18 Q

You mentioned you're dealing with upwards of 600 pieces,

Herrin.

19 590-some pieces of stuff, either coin or money.

Are you under kind of a time crunch that day to get all of

that stuff delivered and all the other stuff picked up?

22 A

Yes.

And was that a dictate that came down to you from

management that you need to get this route done in a certain

amount of time?

APPENDIX-PAGE 87

Ca(4©m;M4MJD00$5-3BH R©efcQftfent 44 Filed 01/18/19 Page 82 of 124

are only allowed to drive and operate so many hours in a

24-hour period.

4 Q

That, and we have a commercial driver's license, and we

So you only have so many hours that you can operate per

regulations regarding your CDL?

6 A

Correct.

7 Q

And there's also this sort of overriding company policy

"We want you to get all this work done as quickly as

saying:

possible."

r»

So was this fed truck run a hustle? Were you moving to

try to get this done?

12 A

Every time.

13 Q

And did that create the opportunity to make mistakes?

14 A

Yes.

15 Q

And did it create in your mind, at least, the necessity to

leave that truck unattended for at least some stops?

17 A

Yes.

18 Q

And were those stops, when you're making a particularly

large volume of drop-offs to the bank or the other business?

20 A

Yes.

You mentioned the truck had a cell phone, a business cell

phone assigned to it.

Was there a company policy that prohibited employees from

having their personal cell phone with them on a truck?

25 A

Yes.

APPENDIX - PAGE 88

CcH©AUEPii'-®6dl!>3S3H b£>d&QmdW44 Filed 01/18/19 Page 83 of 124

you at all; correct?

Correct.

Did people violate that policy?

Constantly.

Pardon?

I, as wel1.

You did, as well?

In other words, not supposed to be on your person or with

I, as well.

So people would take their personal cell phones with them

even though they weren't supposed to?

Yes.

MR. RACICOT:

That's all the questions that I have.

Thank you.

THE COURT:

Redirect, Mr. Donahoe.

MR. DONAHOE: Thank you.

REDIRECT EXAMINATION

BY MR. DONAHOE:

Just a couple, sir, based on the cross.

So, the access to the lockers -- are the lockers locked?

Yes.

A11 right.

And who has the key to the locker?

Usually, the messenger.

So, on this day, you would have put the money, as you

testified previously, in the locker, but Mr. Olson would have

APPENDIX - PAGE 89

Cc&e/&!Pg-f>i:i'-©edl5<S0H bjDd&Qm*to<P<34 Filed 01/18/19 Page 84 of 124

had the key?

2 A

I believe I had the key that particular day, because -That particular day?

4 A

Uhm-hum.

5 Q

Is there a reason you remember that?

6 A

Because Mr. Olson didn't know how to use the control panel

to get into the lockers.

8 Q

All right.

So, if you broke in the truck -- if somebody broke in the

truck, they'd have to have the key to the locker?

possibly two, before it got time-locked out.

believe, was seven minutes.

Normally.

I believe you could open up one locker,

And time-lock, I

14 Q

All right.

So, what 'does that mean to me with locker 13?

16 A

Okay.

17 Q

In the truck?

18 A

--in the truck, in the currency department, there is a

On thewall

control panel on the passenger side which has a key slot, and

that's for the master key to go into.

it till the power came on, so you could operate the control

panel to open up lockers.

And then you would turn

23 Q

I see.

24 A

You would push the number of the locker, hit "enter," it

25 would unlock the locker.

You turn a knob, pull the money out.

APPENDIX - PAGE 90

CeHe/&PW-B@diS*S8H bpcBcmidroeM Filed 01/18/19 Page 85 of 124

Then you shut it, relock it.

It automatically locks. And cancels that particular

order.

Okay.

So but, you would need a key to get that access.

Yes.

All right.

So, if you broke in the locker, you would need the key to

have that access to the locker? If you broke into the truck,

rather?

command, maybe two commands, before it would time-lock out, so

you would have to put the key in. Then you would have to wait

for the time-lock to clear itself.

the summer of 2013, or the fall of 2013?

It was probably the fall or summer.

It was either one?

Right.

It could have been sooner, then?

Uhm-hum.

It could have been summer?

Pardon me?

It could have been summer?

Yes.

Mostly, yes.

I know there's occasions you can make one

Now, about the time of the broom handle incident, was it

It was warm enough where I had the vent open.

It was when Mr. Herrin was on the truck with me.

APPENDIX - PAGE 91

Cc&§/&!P5-N:/-©6dlS*SgH bpciaQmdwM4 Filed 01/18/19 Page 86 of 124

Did the messenger door on the fed truck become broken?

The -- the truck inadvertently --at times, nothing

worked. You know, it breaks down; gets repaired.

-- I would say it worked.

out the door on a number of occasions.

handcart inside the turret door.

I couldn't

Because we used the turret to get

And we keep the

Okay.

Thank you, sir.

THE COURT:

THE WITNESS: Yes, sir.

THE COURT: On the day in question, November 2013,

you were the driver of this truck that's been called the fed

truck and the OTR truck, the same truck?

THE WITNESS: Yes.

THE COURT: And you started driving where? What

Mr. McAlpin.

location?

THE WITNESS:

THE COURT:

I left Helena.

You left Helena with the truck early in

the morning?

THE WITNESS:

Roughly, 4:30.

THE COURT: All right.

And you make a stop in Missoula?

THE WITNESS:

Correct.

THE COURT:

First stop?

THE WITNESS: Correct.

APPENDIX - PAGE 92

THE COURT: And it was there that you described how

you picked up bags of money that were headed for Kali spell?

Right?

THE WITNESS: We -- the first stop?

THE COURT:

THE WITNESS:

Right.

Go ahead.

I guess I'm -- I'll explain from the

start. We stop at the bank. And Missoula truck was not there,

so we went ahead and made our first delivery.

THE COURT: All right.

At some point, you meet up with the Missoula truck?

THE WITNESS:

THE COURT:

Correct.

Missoula truck offloads bags from it to

you?

THE WITNESS:

THE COURT:

THE WITNESS:

THE COURT: All right.

No.

No?

I offload my property to their truck.

You take all what you brought with you and put it on the

Missoula truck?

THE WITNESS:

THE COURT: All right.

I understand that.

Just what they needed.

How does it happen that you are carrying bags of -- that

were not still with the truck when you got to Kali spell?

THE WITNESS: You know, I put the -- I know I put the

money in locker 13, the ATM money.

APPENDIX - PAGE 93

THE COURT: All right.

Where did you do that?

THE WITNESS: At the Helena Garda branch.

THE COURT: All right.

You put this money that later was found to be missing, you

put it into your truck in Helena before you left Helena early

in the morning?

THE WITNESS:

THE COURT: And you believe that you put those bags

Correct.

into locker 13?

THE WITNESS:

THE COURT: And how many bags did you put into locker

13?

THE WITNESS:

THE COURT:

Correct.

I believe there was four.

Four? All right.

When you get to Kalispel1, are al1 four bags gone? Or is

there one of the four still in locker 13?

THE WITNESS: You know, I don’t rightly remember.

want to say there was maybe one.

THE COURT: Wei1, I believe you stated earlier that

1ocker 13 was empty when you got to Kalispel1.

THE WITNESS: Yeah.

I'm going by what I looked at

the delivery.

THE COURT:

Okay.

Wei 1, let's be more specific.

APPENDIX - PAGE 94

THE WITNESS:

THE COURT:

Yes.

I would like your best recollection today

of what the situation was with locker 13 when you got to

Kalispel1.

THE WITNESS:

I remember that I didn't see anything

in there.

THE COURT: All right.

All right.

And you had put whatever you deposited into locker 13, you

had done that in Helena before you ever left?

THE WITNESS: Correct.

THE COURT: All right.

You get to Missoula.

Does anyone that you were aware of have any access to

locker 13 or do anything with locker 13 when you were in

Missoula?

THE WITNESS:

THE COURT:

Nobody that was with me.

Nobody that was with you? A11 right.

But as I understand, the truck was unattended for some

period of time in Missoula; correct?

THE WITNESS:

THE COURT: Where were you stopped when that

happened?

THE WITNESS:

Correct.

It was First Interstate Bank on Front

Street.

APPENDIX - PAGE 95

CdteA&WW-GSQOlSJSStf oiDoteMnifetoMQoiFilfed OI/I8/19 Page 90 of 124

THE COURT:

All right.

THE WITNESS: Wells Fargo.

off of -- I want to say maybe Brooks.

I can't remember -- it's

THE COURT: Wei 1, 1et me be more specific:

times did the truck stop in Missoula before you left Missoula

in which the truck was unattended?

THE WITNESS: At least three times.

THE COURT: All right.

How many

Are you aware of anyone having access to locker 13 when

the truck was unattended during those three stops?

THE WITNESS: They --my first thought was someone

had the other master key that was kept in the branch manager's

office. That would be the only way to get into it. There's

only two keys.

THE COURT:

I understand that.

But are you aware of anyone having had access to locker 13

at the three stops in Missoula?

THE WITNESS:

THE COURT: You make an additional stop en route to

No.

Kali spell in Poison. Am I right?

THE WITNESS:

THE COURT: Was the truck left unattended for a

I believe so, yes.

period of time when it was in Poison?

THE WITNESS: Yes.

THE COURT: What was the total time that the truck

APPENDIX - PAGE 96

was unattended before you ever left Missoula?

THE WITNESS:

THE COURT: All right.

Then you drive north to Poison.

Is that the first stop after you leave Missoula?

Possibly, a half-an-hour.

THE WITNESS:

I believe that particular day was

Poison. We only have, like, three stops between Missoula and

Kalispel1.

THE COURT: All right.

And one of those was Poison?

THE WITNESS:

THE COURT: And you believe that was the first stop

Correct.

after you left Missoula?

THE WITNESS:

THE COURT: Was the truck left unattended in Poison?

THE WITNESS: Yes.

THE COURT:

THE WITNESS:

THE COURT: All right.

I believe so.

For what period of time?

Roughly, a half-an-hour.

Did you stop again before you got to Kali spell?

THE WITNESS:

THE COURT: And the truck was, I believe you said,

I don't believe we did.

unattended in Poison for about a half-an-hour?

THE WITNESS: Correct.

THE COURT: And then you get to Kali spell and open up

APPENDIX - PAGE 97

locker 13; right?

THE WITNESS:

THE COURT: And that's when you find that locker 13

is, as you've described it, missing or perhaps with two --or

three or four bags gone?

Correct.

THE WITNESS: Correct.

THE COURT: All right.

Now, you and Mr. Herrin devised a method of getting into

the truck when it had been locked on one occasion when you

locked the keys in the truck; right?

THE WITNESS:

THE COURT:

Correct.

Do you recall where you were physically

when that event occurred?

THE WITNESS:

Parked in front of First Interstate

Bank in Kalispel1.

THE COURT:

And you and Mr. Herrin devised a method

by which someone got onto the roof of the truck and used a

broom handle to unlock a door?

THE WITNESS: Correct.

THE COURT: And that would gain access to the

interior of the truck?

THE WITNESS:

THE COURT: And this event, you think, occurred in

the summer or fall of 2013, but in any event, before November

20 of '13?

Correct.

APPENDIX - PAGE 98

CsHe/&M-tt*'-E»0!l!3JSSH 0HDcteMmyw4Q0ipnfed 01/18/19 Page 93 of 124

THE WITNESS:

THE COURT: All right.

No.

It only happened the one time.

Was it before or after this truck was found to be missing

the cargo when you got to Kali spell?

THE WITNESS:

Before.

THE COURT:

Before that?

THE WITNESS: Yes.

THE COURT: All right.

And you and Mr. Herrin were working together on the truck

the day that this method of gaining access was worked out and

carried out?

THE WITNESS: Correct.

THE COURT: And I believe you said that once you got

inside the truck, that there would be a time period in which

one could gain access to some of the lockers before a time-lock

would shut everything down?

THE WITNESS: Yes.

THE COURT: And you described that as about seven

minutes?

THE WITNESS:

It would lock you out for seven

minutes. You could open one or two lockers.

THE COURT: All right.

If you got in, you could open one or two lockers before

the shutdown system took over and shut everything down.

THE WITNESS:

Correct.

APPENDIX - PAGE 99

THE COURT:

THE WITNESS: Correct.

THE COURT:

Is that right?

So a person who knew where to go or what

to do could gain access to one or two lockers during that brief

period of time after gaining access to the truck?

THE WITNESS:

THE COURT: And then the shutdown process would lock

Correct.

everything?

THE WITNESS:

Correct.

THE COURT: You've answered my questions.

Thank you, sir.

You are excused.

You may step down.

(Wi tness excused from the witness stand.)

THE COURT:

Call your next witness.

MR. D0NAH0E:

Mr. Jeff Stacey.

This is it, Your Honor.

And this witness should be fairly brief.

THE COURT:

Counsel, as someone wiser than I said

the Lord made a lot of time. You may take as much as you

require.

MR. D0NAH0E: Thank you.

I know you're generous with your time.

THE COURT:

Mr. Stacey, come in, sir.

Walk up here to where the clerk is standing.

She will

APPENDIX - PAGE 100

administer the oath for you.

CLERK OF COURT:

Please raise your right hand.

JEFF STACEY, having been called as a witness on behalf of the

defendant, being first duly sworn according to law, was

examined and testified as follows:

CLERK OF COURT:

THE COURT:

Go ahead and have a seat.

Have a seat over here at the witness

chair.

DIRECT EXAMINATION

BY MR. DONAHOE:

a living.

company.

And in a previous life, did you work for GardaWorld?

Yes.

Did you work with Mr. Herrin?

Yes.

Did you roommate with Mr. Herrin for a spell?

I did.

And can you tell me from when to when?

I believe it was from December of 2000 -- 2013/2014 to the

-- I believe the April -- I'm sorry.

Sir, could you tell me where you live and what you do for

I live in Bozeman, Montana. And I work for a construction

I think I goofed my dates

APPENDIX - PAGE 101

Cc&i/&E&T-6£t)0e$$-36H Dercabmfent 44 Filed 01/18/19 Page 96 of 124

up.

It was, I believe, from December to April.

Of the following year?

Yes.

So into '14?

Correct.

Okay.

And did you guys just share rent and expenses? Was that

the extent of the relationship, or did you hang out together?

No. That was pretty much it.

Just sharing expenses?

Yes.

Okay.

Did you work shifts together at GardaWorld?

Yes.

And did you drive the OTR truck?

Not the big truck, no.

drove it.

I worked on the truck, but I never

Okay.

Were you a messenger or driver?

I was a messenger.

Okay.

And so, you did serve as messenger on the OTR truck?

Yes.

Do you know how many occasions?

APPENDIX - PAGE 102

Hundreds.

2 Q

Just time and again?

So, how long did you work for GardaWorld?

4 A

Just shy of 11 years.

5 Q

At some particular time, did you have discussion with

Mr. Herrin about money that was missing --

7 A

Yes.

-- from one of the trucks?

9 A

Yes.

And when was that, sir?

It was in 2013 after the money had come up missing.

12 were working a Great Falls route.

And can you tell me what the nature of that discussion

14 was? What -- you know, the content of it?

15 A

It was -- the content was, basically, how we felt

the money could have been taken.

17 Q

Yeah.

So you were kind of hypothesizing, floating theories about

how the money could have turned up missing?

19 A

Exactly.

And what were some of the ways that you came up with?

Some of the ways is if somebody had a key, they could

possibly have, if somebody on the truck possibly could have

taken it that was working that day. And also, there was a way

to do it with a broom handle if you were -- if you knew the

method.

APPENDIX - PAGE 103

Cc&i/&E8r-t£t)0e$$-35H Dditabmfent 44 Filed 01/18/19 Page 98 of 124

out of that truck; is that correct?

So pretty much the gamut of how this money may have gotten

3 A

Yes.

4 Q

And when I say "this money," I'm talking about money that

5 was taken or became misplaced in or around November of 2013?

6 A

Yes.

7 Q

And you were aware of that?

8 A

I was.

Was that common knowledge in your shop?

10 A

That the money was missing?

Yeah.

12 A

Yes.

13 Q

So, employees knew? It wasn't a secret; right?

14 A

Correct.

15 Q

Were you questioned about it personally?

16 A

Later on, yes.

17 Q

So you worked the OTR truck?

18 A

Yes.

19 Q

And inside the truck, there are lockers?

20 A

Yes.

Can you tell me how those lockers function?

22 A

Yeah.

the truck.

There is two rows of lockers, one on each side of

There's a number pad up above with a key.

24 Q

So, a keypad?

25 A

A keypad, yes.

APPENDIX - PAGE 104

Okay.

With a key.

key into the lock, and then you put the locker number and press

enter.

lockers without the key.

Just by using the key pad?

Yes.

And so, if somebody gained access to the truck with a

broom handle or a mop, something of that nature, you could just

use the keypad and pop open one of those lockers?

Yes.

All right.

Basically, you -- you go up and you put the

It will allow you to open, potentially, up to three

Potentially.

Why do you say "potentially"?

There's a qualification

there.

go to open a locker, even without the key --or even with the

key, I'm sorry, sometimes it would give you a five-minute

del ay.

What is it?

There is.

And what it is is every now and then when you'd

So yeah, you could still get in, but you'd be delayed five

minutes.

It's supposed to do it after three lockers, but

sometimes it would do it after one.

it without you opening any lockers.

So it's an automatic no access?

Correct.

And it happens randomly?

Or sometimes it would do

APPENDIX - PAGE 105

Seemingly so, yes.

Okay.

So sometimes it would kick in after you had already opened

three lockers, but sometimes it would kick in after you had

opened one?

Sometimes it would do it even if you hadn't opened any.

Okay.

So kind of hit or miss?

Right.

The key is supposed to override that, but --

chances are you'd have more clear access to the lockers?

of the lockers.

But if you broke into the truck and you had the key,

Yes. You -- theoretically, you should have access to all

Okay.

Did your discussions with Mr. Herrin about this misplaced

or missing money involve Mr. Herrin admitting to you that he

took the money?

It did not.

Did he ever imply, he, Mr. Herrin, in conversation with

you, that he took the money?

100

He did not.

MR. D0NAH0E: Thank you, sir.

I have nothing further.

THE COURT: You may cross-examine.

APPENDIX - PAGE 106

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101

MR. RACICOT: Thank you, Your Honor.

CROSS-EXAMINATION

BY MR. RACICOT:

Good morning, Mr. Stacey.

Good morning.

Mr. Donahoe asked you about working the OTR truck.

The OTR truck would make runs to Missoula that ended in

Kali spell and then back.

But it would also make runs to

Billings and back and to Great Falls and other places and back;

correct?

Correct.

And then, you also worked on other trucks that would make

runs either in town or out-of-town, as well?

Correct.

So did you ever work the fed truck, OTR route, the

Wednesday run from Helena to Missoula and then up to Kali spell

and back?

Yes.

And when you would make that run, did you make that with

the crew leader at that time, Curt McAlpin?

Yes.

Were you aware of how Curt McAlpin would stage his truck?

Where he would put various things that were being dropped off

at various times?

Yes.

APPENDIX - PAGE 107

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102

This method of gaining entry to the truck, you could take

a broom handle, or something like that, put it through the roof

vent on the truck, and access the panel of rocker switches

between the driver and passenger seat?

5 A

Yes, you could.

And use that handle to hit one of those rocker switches

7 which would open one of the doors?

8 A

Yes.

9 Q

Did you ever do it?

10 A

Yes.

Did you do it more than once?

12 A

I know I did

it at least once, though.

14 Q

I don't recall if I did it more than once.

Could I get you to lean a little closer to that

microphone?

16 A

Yeah.

17 Q

Thank you.

What can you tell me about the time that you did it? Tell

me the circumstances, if you would.

20 A

We were locked out.

I don't recall which bank, so I think

somebody had left the key inside the truck, and we both closed

the door.

Let me stop you.

Who's "we"? Who were you with?

24 A

I believe that was with John, actually.

25 Q

You think you were with Mr. Herrin?

APPENDIX - PAGE 108

Ca^£Q^iCm!^-&EH*aBdfiWfcent 44 Filed 01/18/19 Page 103 of 124

)

Yeah.

Okay.

Do you remember what town you were in?

I want to say Great Falls.

When you did the Great Falls run, did you have to continue

north of Great Falls? Did you ever go as far as Havre?

Yes.

But you think you were in Great Falls on this occasion

where the truck got locked?

I believe it was, yeah.

Okay.

103

-•'v

/< ;

So go ahead. What happened?

We were locked out. We were able to get a broom handle

from one of the banks. We were able to climb on top of the

truck and manually open the vent. Somebody had already drilled

a hole through the mesh on top of the vent from doing this

method prior. We were able to stick the handle down and open

one of the doors and gain entry to the truck.

screen door?

No.

Metal mesh?

Yep.

But there was a hole in that?

Yes.

So there was a mesh screen, like you'd have maybe on a

It was a metal -- metal mesh.

APPENDIX - PAGE 109

104

CafiffdQ^rfiQDBKSB-fiEI-RaDOOffltent 44 Filed 01/18/19 Page 104 of 124

Was this method of gaining entry into the truck common

knowl edge?

there was more than a few people that knew about it.

issue of the locked truck that day in Great Falls?

I had heard about it, yes.

So, in other words, it wasn't something you had to

brainstorm whi1e you were there in Great Fal1s?

Correct.

Where did you hear about it from, if you know?

I honestly can't recal1.

You said "we" -- you know, got the broom from the bank.

"We" got up on to the truck.

Yeah.

I don't know how wi despread it was known.

But yes,

Was it something you knew about before you confronted the

Do you remember who did what as between you and

Mr. Herrin?

I don't.

Okay.

I don't remember if I did or he did.

But it worked?

Yes.

You got into the truck?

Correct.

And got the keys that had been locked inside?

Yes.

As it relates to these lockers inside the truck needing

APPENDIX - PAGE 110

105

Ca^6QI^</iCB0Oas-6KhR8O6fi«Btent 44 Filed 01/18/19 Page 105 of 124

the key or not needing the key, sometimes it worked and

sometimes it didn't, did you get a sense that was a truck

malfunction?

4 A

No.

Or that there was some rhyme or reason to it?

It didn't -- it didn't make a lot of sense to me why

it would be like that.

-- maybe they programmed it to be like that to maybe keep

people from attempting to open lockers when they weren't

supposed to.

But, you know, I don't know.

I wasn't

9 Q

Okay.

But to your knowledge, in theory, if you have a master

key, you could put that into the keyhole that's next to the

control panel, and then you can type in the numbers for the

lockers that you want to access on the control panel and access

14 all of the lockers if you want?

15 A

Yes.

16 Q

In theory?

17 A

In theory, yes.

in the numbers for up to three lockers, I believe is what you

stated, and open up to three lockers before you would get timed

out?

22 A

And in theory, if you don't have a key, you can still type

Yeah.

I don't recall being able to open more than three.

I'm only basing this on my personal knowledge with it, is that

it seemed like after three it would always lock you out.

25 Q

But you had personal experiences where you did not have

APPENDIX-PAGE 111

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106

the master key, and you were still able to access one or more

lockers, something short of four?

Yes.

And then you had experiences where you had the key, and

you couldn't necessarily access all of them?

Correct.

Do you remember if you were working on November 20th of

2013?

I believe I was working the city route that day.

THE COURT: What does that mean?

THE WITNESS: That means I worked in Helena.

THE COURT:

That's helpful.

Thank you.

In Helena? All right.

THE WITNESS: And I didn't leave the city.

(BY MR. RACIC0T)

And if you worked the city route, would

you have any interaction at all with the fed truck?

I would not.

And Mr. Donahoe asked you about being interviewed and you

said you were later.

Am I correct you were not interviewed by Garda

investigators or Garda management as part of the internal

investigation?

I was not.

You were interviewed later, if I'm correct, by federal law

APPENDIX - PAGE 112

107

enforcement officers during the course of their investigation

into this case?

Correct.

And that was sometime later; is that right?

Yes.

That's all the questions I have.

MR. RACICOT:

Thank you.

THE COURT:

Mr. Donahoe, you may redirect.

MR. DONAHOE: Thank you.

REDIRECT EXAMINATION

BY MR. DONAHOE:

again?

I don't have an exact date for when it happened.

Would it have been before this missing money that we're

discussing here today?

Yes.

Okay.

So, sir, this Great Falls event, when did it happen,

Now, at some point, did that truck, the OTR truck, the

messenger door become broken?

there was a -- when you go in the side door, there's a drum,

essentially, it's like a mantrap you have to go into and spin

it around.

I don't know if necessarily the door became broken, but

I think that was broken for a while.

Okay.

APPENDIX - PAGE 113

Ca^£Q.^(/rR^lI3JS£l-byD&^6Gm4 Filed 01/18/19 Page 108 of 124

So, in the Great Falls event, when the broom handle was

used, did the door pop and you got into the truck?

3 A

Yes.

4 Q

And you had immediate access to the back?

5 A

Yes.

6 Q

Did it ever happen where you guys had to take something

On this particular occasion.

apart because the messenger door was broken?

8 A

Yes.

9 Q

All right.

Is that the same event as what we were talking about in

108

Great Falls?

12 A

It is not.

13 Q

All right.

So, there was yet a third event, correct, of access to the

This is another event.

truck, or a second event?

16 A

A second event, yes.

17 Q

Okay.

When did that happen?

19 A

I don't recall the date.

20 Q

All right.

In relation to the first one that you described in Great

Falls, where you popped the door open, this -- did this second

one occur before or after?

24 A

I want to say after.

25 Q

Okay.

But I don't know for sure.

APPENDIX - PAGE 114

109

Ca^AQI^rfiRWilto6tl+yD0airaboP44 Filed 01/18/19 Page 109 of 124

And tell me what was taken apart?

There's a side bin, so to speak, in that truck that's

opened with a switch.

sliding door that would allow access to only one side, either

the outside or the inside.

drum was broken, we were able to get the bread box open.

there's two sliders, or two guides, I'm sorry, on the sides.

We were able to take the screws or bolts out of that to take

that slider off.

We call it the bread box.

There's a

On this particular time when the

And

All right.

When you say "we," that would be who?

It was Mr. Herrin and I.

All right.

And this second event, you don't remember whether it was

before or after the first Great Falls event, did that involve a

lot of time, or a short period of time to access into the

truck?

Through the bread box?

Yes.

It was a pretty significant amount of time.

More than an hour?

I would say yes.

So what about the first time? How long did that take?

I - - I don't recal1.

All right.

APPENDIX - PAGE 115

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110

Mr. Racicot asked you things about being familiar with

Mr. McAlpin's staging habits.

Yes.

Do you recall that?

Yes.

All right.

And how would he stage money that needed to go to

Kali spell for ATMs?

have Missoula ATM transfer in one locker, we'd have --

essentially, whatever we needed to -- at certain towns, he'd

put in certain lockers. Kali spell would always go in one

1ocker.

He would --he would utilize certain lockers, like he'd

Okay.

So -- and were the lockers numbered?

Yes.

Do you recall the locker that the Kali spell money would go

i nto?

I don't.

Okay.

But you do recal1, at 1 east, that money for various stops

would be segregated into different lockers?

Yes.

And the messenger door was broken beginning when?

I couldn't tell you.

APPENDIX - PAGE 116

Ca^A(3B<rfiRWlCla®6tH3yDe8«Wlboe44 Filed 01/18/19 Page 111 of 124

2 A

Just -That was before I was working regularly on the truck.

Okay.

But just so I have this right:

If the messenger door is

broken, you'd have to go through the bread box?

7 A

If you're utilizing that method, yes.

8 Q

Okay.

If you go through the bread box, that takes more time?

10 A

A significant amount.

A significant amount of time?

12 A

Yeah.

13 Q

Okay.

Now, so it sounds like -- is it a fair statement that

there's more than one way to access these trucks if the keys

are 1ocked in there? Or they're unattended?

17 A

I don't know how long it was broken.

4 Q

111

For the people on the truck to access it, it's fairly

limited, but yes, there is more than one way.

19 Q

And is it common knowledge in the shop how to do this for

the drivers and the messengers?

Like I said, I don't know how widespread it is, but yes,

22 other people know about it.

23 Q

Other people did know about it?

24 A

Yep.

25 Q

Thank you, sir.

APPENDIX - PAGE 117

Ca^AQ^</tHB0Oto6£H3yDe8unflbOP44 Filed 01/18/19 Page 112 of 124

MR. D0NAH0E:

THE COURT:

THE WITNESS:

THE COURT:

MR. DONAHOE:

I have nothing further.

You may step down.

Thank you.

Do you have other witnesses, Mr. Donahoe?

No, Your Honor.

Thank you.

THE COURT:

Mr. Racicot, what's the timeline on the

government's presentation of evidence?

MR. RACICOT: We don't have any witnesses to call

Your Honor.

THE COURT: Very well.

It's five minutes past noon. We'll take a 15-minute

recess. The court will reconvene at that time, and I will

attempt to address the issues raised by the motion.

112

We're in recess till 25 past.

(The proceedings in this matter were recessed at

12:08 p.m. and reconvened at 12:27 p.m.)

THE COURT:

Be seated, pi ease, all.

We are back in open court session.

Counsel for both parties are present.

The defendant is present.

And the evidence record on this motion has been closed,

the defendant having presented four witnesses who gave

testimony. The government having stated it has no witnesses to

present on this particular issue.

APPENDIX - PAGE 118

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113

So we'll deem the matter, insofar as the record is

concerned, submitted.

Counsel

I'll be pleased to hear summary argument on both

sides as you care to present it.

the court has read the briefs and has conducted what it

considers to be appropriate additional research directed to the

issues.

Keep in mind, please, that

But you are welcome to proceed.

I have no particular

preference as to order of presentation, keeping in mind, as I

said earlier, the court will approach the issues on the basis

of the totality of the record that's before it.

MR. RACICOT: Thank you, Your Honor.

Judge, we would just highlight a couple of points that we

referenced in our briefing that I know the court has reviewed,

and that's first and foremost that there is prosecutorial

discretion in which offense to charge in a case of this type.

And interstate transportation of stolen property and all of the

transportation of property statutes relate as much to receiving

of stolen property as to the initial taking. And that in this

case, we charged receiving and transportation. The best

analogy I could think of that's not contained in our brief

would relate to the possession and transport of stolen motor

vehicles across state lines. There is no federal offense that

I'm aware of specifically addressed to stealing a vehicle.

if I steal a vehicle here in Helena, and I drive it across

But

APPENDIX-PAGE 119

Ca€$6U®3&Y00015-SEH Document 44 Filed 01/18/19 Page 114 of 124

state lines, I can be prosecuted federally for the

transportation of that stolen property, even though I couldn't

be charged for it -- for the actual underlying theft.

;

114

Here, there's arguments that Mr. Herrin could have been

We believe

charged with the underlying theft, but he wasn't,

that's within our discretion to make that determination, so

long as we're not discriminating against any class of

defendant, which there's been no indication that we are.

Then in our view

as we've said in our brief, it becomes

an issue of the evidence and whether it's relevant under 401,

whether it's unduly prejudicial under 403.

pattern instructions the court can give the jury at the time of

trial to help focus their review of proof, including pattern

instruction 3.10 that addresses the fact that the defendant is

not on trial for any conduct or offense that is not charged in

the indictment.

We think there's

So the jury will not be asked to find the defendant guilty

or not guilty of actually taking the money off the truck.

They'll be asked to determine whether the government met its

burden of proof as to the elements of interstate transportation

of the stolen property. We think that argument dovetails with

the Ninth Circuit decisions in Heiberg and Desmond, which are

cited in our briefs. And we just don't think the defendant's

argument as it relates to the Fifth Amendment and being charged

under the Fifth Amendment by the way of grand jury for the

APPENDIX - PAGE 120

Ca§06U@QtAYooO15-SEH Document 44 Filed 01/18/19 Page 115 of 124

115

actual theft is relevant here, because he will not be exposed

to double punishment.

taking the money, because the jury won't be asked to determine

whether he actually took the money. Any evidence that did he

would be relevant only to proving, one, that the money is

stolen; and two, that he knew it at the time he transported it

across state lines, which are two of the elements of interstate

transportation of stolen property.

He will not be punished for actually

And with that, Your Honor, unless you have questions, I'd

be happy to stand on our briefs.

THE COURT:

MR. RACICOT: Thank you.

THE COURT:

MR. DONAHOE: Thank you.

Nope.

I don't have questions.

Mr. Donahoe.

Your Honor, thank you for the opportunity to make some

closing remarks here.

So, I'm going to pick up where the government began, and

they seem to be just fastened, apparently, to this idea of

prosecutorial discretion. And I would ask the court to

conceive of this as prosecutorial obligation.

I think it's apparent from what the court heard today,

that the orientation of this case, from the government's point

of view, is that Mr. Herrin took the money.

There's evidence of truck break-ins, accessibility to the

trucks, keys, possession of keys. Your Honor now has, I think,

APPENDIX - PAGE 121

Ca£$&W&&Y00015-SEH Document 44 Filed 01/18/19 Page 116 of 124

a context to look at this indictment and think to yourself:

"Well, was it Mr. McAlpin that took the money?"

He denies that, and he's never been charged with it.

Nor was it anyone else that apparently had contact with

116

these funds that took the money.

There's some testimony that seems to indicate that perhaps

the correct number of bags were loaded by looking at this video

cam, but even that hasn't been established.

Frankly, Your Honor, I think at this point, what we have

here is money that has been misplaced.

doesn't want to say that Mr. Herrin did it, I guess we're fine

with that. And that would take a large part of the

government's case, in terms of evidence, and set it to the

side.

If the government

Because there would be no apparent relevance for it.

At the beginning of the hearing, Your Honor summarized in

some detail its understanding of the papers that have been

filed so far.

And alighted on the fact that the government had made the

argument that this should be cast as a motion in limine and not

as a motion to suppress, because there's no alleged

constitutional violation.

There clearly is alleged a constitutional violation, as a

violation of the grand jury clause in the Fifth Amendment,

Fifth and Sixth Amendments, together with and looked at through

the lens of the statute of limitations statute, which I bring

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to Your Honor's attention, states expressly:

otherwise expressly provided by law, no person shall be

prosecuted, tried, or punished."

The government in its remarks says:

117

"Except as

"Wei 1, he won't be

punished for taking the money." But there's two other clauses

or two other words that are really stand out in this phrasing

in the statute of limitations statute 3282, "prosecuted or

tried."

It has to be the government's view that it intends to put

on bank records, casino records, statements, apparently, that

Mr. Herrin made, banking activities, deposits, all directed to

the goal to show that the money, and I want to use that phrase,

"the money," that was run through his accounts and perhaps used

for gambling in Las Vegas and so on, is "the money" that was on

the truck.

But there's not going to be any physical evidence

whatsoever that will connect Mr. Herrin -- "the money" that

went through his accounts to "the money" that was apparently

misplaced from this truck.

So, for all those reasons, and for all the reasons in the

papers, we respectfully request that the court enter an order

that says that any effort by the government to offer evidence

that Mr. Herrin was the taker of the funds, ought to be

excluded.

Thank you, Your Honor.

APPENDIX-PAGE 123

THE COURT:

to the court for decision.

I appreciate the specificity with which both sides have

addressed their perception of the issues.

And we will endeavor to address the issues as presented as

Thank you, counsel.

We wi 11, wi th those arguments, deem this matter submitted

118

specifically as possible.

Let's start with the evidence that was presented today.

Defendant, at the court's direction, assumed the responsibility

to present evidence related to the issues.

called and testified and were examined.

Four witnesses were

And it is the court's observation, and it's fair to say

that the testimony that was encompassed in those four

witnesses, largely focused upon the factual events that

surrounded the missing money that occurred on -- in November of

2013.

The legal issues, as raised, essentially, in the briefs

and argued in the briefs, were not the focus of particular

evidence.

And those legal issues remain for the court's analysis and

decision, essentially, on the basis of the record, which while

it may be impacted to some extent by the testimony presented

here today, is largely directed to an analysis of the charges

made.

The defendant argues that he has made a constitutional

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119

claim. However, upon analysis, it appears that it remains to

be concluded and is concluded by the court that the arguments

advanced are, essentially, arguments related to the

admissibility of evidence.

But regardless of whether the court takes the motion as a

motion to suppress the record which is sought to be excluded,

or had the court approaches the question as one of exclusion of

evidence, the issue really remains for the court to decide, and

that is, whether the evidence surrounding the events of the day

in question should be excluded.

That is, it is essentially the defendant's position that

all of that evidence, whatever may have --be shown to have

factually occurred on the date of I think it was November the

13th, that that evidence is irrelevant, inadmissible, and

prejudicial to the defendant, and should not be admitted.

The government, on the other hand, contends that this

evidence has relevancy. And that the -- keeping in mind that

the government, from its perspective, does not have to prove

the issue of who stole the money as a part of the crime

charged, that the evidence the government seeks to introduce is

not only relevant, but that it has probative value, and should

be allowed to be introduced at the trial, because it touches

upon and deals with both the question of who took the money and

whether or not the defendant intended to deprive the true owner

of the money with its use and possession on a permanent basis.

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120

This issue is framed in -- at least in part, by the Ninth

2 Circuit pattern instructions, particularly pattern instruction

3 8.189, 2018 edition, the charge being interstate transportation

4 of stolen property.

And I paraphrase:

"The defendant is charged in the

6 indictment with the transportation of stolen property in

7 interstate commerce, in violation of Section 2314 of Title 18

8 of the United States Code.

"In order for the defendant to be found guilty of that

10 charge, the government must prove each of the following

elements beyond a reasonable doubt:

"First: That the defendant transported, transmitted,

13 transferred, or otherwise moved stolen property," in this

14 instance, the funds taken from the Garda truck, "between the

15 states, as it's charged, of Montana and Nevada."

Second element:

"At the time of the property, the money,

17 crossing the state line boundary, the defendant knew that it

18 was stolen.

"Third: That the defendant intended to deprive the owner

20 of the money temporarily or permanently.

"Fourth, that the money or property was of a value of

22 $5,000 or more."

And finally, as an element in the standard stock

24 instruction:

"The government need not prove who stole the

25 money."

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121

Those are the elements of this crime as it is charged in

the indictment.

And as I said earlier, the question directly for the court

Does the court appropriately allow this evidence, which

is:

the government has outlined in its brief, to be introduced if

otherwise admissible at time of trial?

The manner in which the issue is presented, arguably,

could be said to have isolated the claim made by the defendant

to one that does not charge a constitutional rights violation.

I make no final determination on that issue, because it is the

court's determination, regardless of the standard applied, and

whether the review of this court's decision be for abuse of

discretion, or whether it be by de novo review, that the

evidence should be admitted. And that is the ruling of the

court.

What happened on the day of the loss of the money that

preceded the loss, the events of the day, the investigation

that followed, and the evidence that presumably will be found

to be admissible at trial of activities of the defendant that

followed the loss of the money, are -- and it is the court's

determination, relevant to the proof of the crime that was

charged. That is, the taking of the money that had been

stolen.

it is relevant to proof of the charge made by the government.

The government simply does not have to prove that the defendant

Not specifically that the defendant took it. And that

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122

was the thief, although there may be evidence that would tend

to support that conclusion, yet to be developed at time of

trial.

But the ruling of the court is the motion to suppress or

the motion in limine, however characterized, is denied.

To the extent that the defendant has raised issues that

may be appropriate for address by the instructions to be given

by the court at the completion of the trial process, those

questions are, in the view of the court, premature at this

point, and will be addressed at an appropriate time, including,

if not before, at the time of settlement of instructions at the

completion of trial.

Therefore, the motion, as framed, whether characterized as

a motion to dismiss or to suppress or as a motion in limine, is

denied.

The evidence may be presented to the extent that the court

finds it otherwise to be admissible under the Rules of Evidence

to be applied.

That is the ruling of the court.

The case will proceed to trial as scheduled.

There is one other matter, counsel, that I feel obliged to

bring to your attention, And that is that the scheduling order

in this case that was issued required that by January 4 of this

year, that a -- either a plea agreement, if there were a plea

negotiation effected, or a notice of intent to go to trial were

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123

to be filed.

No side, either side, complied with that order of this

court.

I have nothing before the court to -- other than the

absence of a filing, to provide the notice to the court that

was required by the court's scheduling order.

I don't have any statement to that effect by the

defendant. And I have no response statement or any other

statement from the United States on that issue either.

Consequently, counsel, it's my order that on or before

close of business on Friday of this week, that's on November --

January 11, that each of you shal1 fi1e and submit to this

court a written explanation of your reasons or reason for not

complying with the court's scheduling order in this case.

And for the information of everyone, the court does not

issue scheduling orders with the expectation or belief that

counsel can or will be free to simply ignore them.

So I expect the filings to be -- as ordered to be made.

That concludes the matters before us today.

We are in recess.

MR. D0NAH0E:

before you leave there?

THE COURT:

Judge, can I be heard on something

If it's not related to the rulings of the

court, yes.

MR. D0NAH0E:

It's not. Well, it is, I guess,

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124

tangentially, but it would be my intention, and I just don't

want to electronically file it without the court knowing, I'm

going to appeal this order to the Ninth Circuit.

THE COURT: Wei 1, counsel, that's -- whatever your

prerogatives are under the -MR. D0NAH0E: Wei 1,1]ust didn't want to not

disclose that.

THE COURT: Wei 1, I appreciate your bringing that to

the attention. The court will act as it deems appropriate

based upon whatever is filed, of course.

MR. D0NAH0E:

THE COURT: All right.

Okay.

We are in recess.

(The proceedings in this matter were adjourned at

12:49 p.m.)

CERTIFICATE

I certify that the foregoing is a correct transcript from

S-"

the record of proceedings in the above-entitled matter.

Isl Tina C. Brilz, RPR, FCRR

Dated this 18th day of January, 2019.

APPENDIX - PAGE 130

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.