• With: Fernando Benitez, Attorney for Sgt. Andrew Tahmooressi

    This is a rush transcript from "On the Record," August 4, 2014. This copy may not be in its final form and may be updated.

    GRETA VAN SUSTEREN, FOX NEWS HOST: This is a FOX News alert. Just moments ago, a crucial hearing in a Mexican court for Marine Sergeant Andrew Tahmooressi. It's wrapping up. And the U.S. Marine has been held in a Mexican prison since March 31st, just for making a wrong turn at the border while carrying guns in his truck. In moments, you will hear directly from the Marine's lawyer.

    But first, chaos outside the court. FOX News correspondent, William La Jeunesse, live in Tijuana with the very latest -- William?

    WILLIAM LA JEUNESSE, FOX NEWS CORRESPONDENT: Greta, moments ago, you may have seen Tahmooressi escorted from the courthouse by very heavy armed escort. He was alone in one van. An armed escort in front and behind him. You had another van with inmates headed back to the federal prison about 30 or 40 miles away from where I am standing.

    As you said, it was March 31st when Tahmooressi crossed the border with his guns in his vehicle. Today, the two customs agents who stopped him, who went through his belongings, they took the stand, under cross-examination, by Tahmooressi's attorney, Fernando Benitez. He attempted to undermine their credibility by showing, claiming they had falsified certain reports and that they omitted certain information favorable to Tahmooressi.

    The attorney for the customs agents said that was not accurate, that, in fact, these guys were following protocol. Benitez also claims that the search was illegal, that the agents violated Tahmooressi's civil rights by denying him a lawyer, access to the U.S. consulate, and a proper translator in over eight hours of custody, trying to convince the judge that that evidence should be thrown out. That's the argument that he is making. As we know, this will probably go on, Greta, for several more months.

    Back to you.

    VAN SUSTEREN: Indeed. Several more months. Anyway, William, thank you very much.

    Sergeant Tahmooressi's lawyer, Fernando Benitez, joins us from Tijuana. Good evening, sir.

    FERNANDO BENITEZ, ATTORNEY FOR SGT. ANDREW TAHMOORESSI: Good evening. How are you?

    VAN SUSTEREN: I'm very well. And before I ask you what happened in court today, how is your client? Does he seem any different from the last time you saw him?

    BENITEZ: I would say that he is a little bit more upbeat, especially since the hearing didn't take as long as the last one. It's a very hot day, humid day around here. I think he was more optimistic. He has been growing a little bit more optimistic as evidence has been entered into his case. I think he is -- his participation in the hearing allows him to get a better feel that we're finally heading somewhere with his defense.

    VAN SUSTEREN: Lucky for him he is feeling more optimistic. I would feel the other way since it's dragging on since March 31st. But let me ask you this, how many witnesses testified today?

    BENITEZ: Four witnesses. Two members of a Mexican army, who served as support for the two customs agents that performed a search on his vehicle and ultimately found his guns and placed him under arrest.

    VAN SUSTEREN: Now I understand that you are taking the position, the tactic, at least at this point, that his rights were violated. Let me ask you another sort a question that's a little different. Did any one of the four who testified say anything that would hurt him if this were to proceed to a full trial?

    BENITEZ: No, quite the contrary.

    VAN SUSTEREN: What did they say?

    BENITEZ: Well, the customs agents admitted that the search the vehicle was a blank order that was signed three days in advance of the fact taking place. And one of the agents admitted that, with his own handwriting, he filled in Andrew's name and the information for his vehicle. And, therefore, by doing that, they are altering a public document that would have allowed them to perform an illegal search on the vehicle. So, therefore, our contention is that the search is illegal, and whatever was a result of that search is illegal as well.

    VAN SUSTEREN: All right. Now, we have the same sort of provision under U.S. law, if you violate someone's constitutional rights here, everything gets thrown out, including possibly the arrest. I realize that's where your attention is. I'm curious, did anyone say anything, aside from that today, testify to show that his intent, that it was in his mind to bring those guns into Mexico to violate Mexican law? Anything at all from that?

    BENITEZ: We designed the interrogation in a way that we would only have responses to the topics which we were interested in. Of course, the witnesses could have volunteered any information that they had, but they didn't. So, I'm not sure that they are convinced that it was his intent. For example, he was led into customs to the secondary inspection. They asked him what was in the vehicle. He responded. They took him out of the customs area in order to serve the search warrant on the car. And then took him back in to the customs area.

    And all of this happened during a time frame that, according to their own testimony, the search warrant wasn't even issued at that point. So, I think they got coached by their superiors and they had a script which they had to stick to. And, basically their script was, we took all this time to deliver him to the prosecutor because we were doing our customs procedure and all done by the book, and it was all done according to the law. But, by safeguarding their customs procedure, they are actually demolishing the criminal case against my client.

    VAN SUSTEREN: Now, what sense do you have watching the judge? Did the judge seem to indicate any way what he was thinking or whether he believed the four witnesses? Anything at all?

    BENITEZ: Well, the judge is very level-headed. He was present. He was inquisitive. He asked some questions of his own to the witnesses after the defense and the prosecution were done with their questions. And I can gauge that his interest in the case is high. But he did not let on, nor could I even dare to foresee what is going on in his mind now.

    VAN SUSTEREN: All right. How about the prosecutor? Some prosecutors are really gunning for defendants. And in this particular case, did you get the sense that this prosecutor was gunning for Sergeant Tahmooressi or whether he thought that he had a bad case and just sort of wants to get rid of it?

    BENITEZ: No. I think is he going through the motions. I didn't see him aggressively pursue anything now. The information is there in the case file. I think that the prosecution's case is exhausted. These are our witnesses now. We called them. I don't think they have anything further to add to the prosecution's case. And that's why the prosecution only asked a couple of questions relating to the names of the people that took part in the search.

    VAN SUSTEREN: All right. Two quick questions. One, is there another court hearing? And, two, is there a possibility some decision could be made where the case is tossed out and he goes home or something happens so he comes home soon?

    BENITEZ: OK. Right now, we are at a stage of the procedure where only evidentiary hearings will take place. No rulings will take place right now until this stage is over. And since it's not over yet, we still have some evidence to file. We still have some evidence to enter into the record. It's going to keep dragging on a little bit more. Now, we're not expecting any sort of decision, OK. For the time being, and we have some other evidence on the table right now. It's going to be entered. But I'm not sure that it will be subject to a hearing. Most of the evidence will be documents and probably will just be added to the case file with no hearing involved.

    VAN SUSTEREN: So, no court hearing is scheduled, and maybe more evidence will be introduced just not in a court hearing.

    BENITEZ: Not a court hearing.

    VAN SUSTEREN: So when would you expect a resolution on your motion where your -- your attempt to they this out on technical reasons this that his rights were violated?

    BENITEZ: Out of respect for the federal court system, I will not venture to make a call on how long I expect it to take. But, of course, if we file any motions, we expect a prompt ruling. And I think the case is going very well so far. As soon as we have all of the evidence that we feel is necessary, we will conclude this phase and move on to the closing arguments.

    VAN SUSTEREN: OK. Let me ask a quick question. Would three months be reasonable in the ball park or longer?

    BENITEZ: It could be three months. But it could be a little more.

    VAN SUSTEREN: OK. Thank you very much, sir. Thank you for joining us.

    BENITEZ: It would all depend.

    VAN SUSTEREN: Indeed.

    BENITEZ: You are welcome. Thank you for having me.