Baca retrial: Prosecution, defense rest case

LOS ANGELES (KABC) -- Andre Birotte was on his way to his children's open house early one evening in September of 2011 when he got a shocking phone call -- two LASD deputies had just threatened to arrest the young, female FBI agent leading a federal investigation into the L.A. County jails.

Birotte, then the U.S. Attorney for the Central District of California, quickly called then-Sheriff Lee Baca on his cell phone.

"What the hell is going on?" Birotte demanded of Baca. "Is this what we're doing here?"

Tensions between the LASD, the FBI and the U.S. Attorney's Office had already been running high - but this was an explosive tipping point.

"I've got to know - is this agent going to be arrested tonight?" Birotte says he asked the Sheriff.

Birotte, now a federal judge, testified Thursday as the final prosecution witness in Baca's retrial on felony charges of conspiracy, obstruction of justice and false statements. Baca has pleaded not guilty.

Nine of Baca's LASD subordinates, including former Undersheriff Paul Tanaka, have either been convicted or pleaded guilty in the scheme to block the FBI's investigation into deputy-on-inmate abuse and corruption in the jails. Tanaka began serving a five-year prison sentence in January.

The government rested its case Thursday after nine days of testimony and 16 witnesses. In a surprise move, the defense also rested its case Thursday after just one witness.

Birotte described for jurors an intense meeting held the day after those two LASD sergeants threatened to arrest FBI Special Agent Leah Marx. Birotte, Baca and Steve Martinez, then head of the Los Angeles FBI Field Office, met to clear the air after six weeks of rising hostilities.

How was Mr. Baca's demeanor at the start of the meeting, asked prosecutor Lizabeth Rhodes?

"Cordial in the beginning," Birotte recalled. "If you're going to be mad at anyone, be mad at me," Birotte says he told the Sheriff of the decision to keep the federal probe "close to the vest" by not informing Baca of the covert investigation.

The mood quickly turned. Baca, according to Birotte, directed most of his wrath at the FBI's Martinez -- exclaiming, "I'm the goddamned Sheriff, this is my goddamned jail!"

"Your guys committed a crime!" Baca told Martinez of the FBI undercover sting to see if a jail deputy would accept a bribe to smuggle a contraband cell phone into an inmate-turned-FBI informant.

"Your guy took a bribe!" Martinez fired back at Baca, according to Birotte.

"Stop, stop!" Birotte told the pair. It was "bark... bark back," between the two top law enforcement leaders.

The Sheriff then let loose, according to Birotte: "You want to gun up in here? Is that what you want to do?"

Birotte testified he took the "gun up" comment to mean the agencies could "go to war and fight this out," not a literal threat to pull out a firearm.

Prosecutors played a 2013 recorded interview of Baca for jurors in which the former sheriff describes how his temperament guides his actions.

"Let me explain this anger business. I don't get really angry. I get more tactical. All right?" Baca told federal agents in the interview.

In that heated September 2011 meeting, Baca accused the FBI of conspiracy, entrapment and civil rights violations.

"Did the FBI commit a crime?" Rhodes asked Birotte.

"No, absolutely not," said Birotte.

On cross examination, Birotte testified he told Baca - "Look, this is an undercover operation. You know that! Your agency does it too!"

The meeting did not "end in a huff," Birotte told jurors. Instead, the men shook hands and in the weeks ahead, "the tide started to shift" toward more cooperation between the agencies.

In a surprise move, the defense rested its case Thursday after calling a single witness - Michael Gennaco, former head of the LASD's watchdog agency, the Office of Independent Review.

Gennaco, a former Assistant U.S. Attorney who prosecuted civil rights violations, said he "was surprised," upon learning the FBI had introduced a contraband cell phone into the jail as part of their undercover probe.

Baca defense attorney Nathan Hochman asked Gennaco about an earlier meeting between representatives of the LASD, including Baca and Tanaka - and the U.S. Attorney's Office.

Gennaco testified that Baca voiced "his concern" about the introduction of the cell phone into the jail. After Baca departed, Undersheriff Paul Tanaka stayed behind and "expressed his extreme displeasure."

Tanaka was "filled with disdain," Gennaco told jurors. "I'd characterize it as very hawkish and aggressive."

Baca's defense has argued throughout the trial that his LASD subordinates "went too far" by "committing illegal acts" Baca knew nothing about - and that Tanaka "was the heartbeat" of the conspiracy to obstruct the FBI.

Court is dark on Friday. Closing arguments get underway on Monday morning.

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