Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 1 of 124 226 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA HON. LAWRENCE J. O'NEILL UNITED STATES OF AMERICA, Plaintiff, vs. BARRY LEE BOWSER, Defendant. ) ) 1:15-cr-088 LJO ) ) JURY TRIAL, DAY 2 ) ) ) ) ) ) Fresno, California Wednesday, July 1, 2015 REPORTER'S TRANSCRIPT OF PROCEEDINGS Vol. 2, pgs. 226 to 349, inclusive REPORTED BY: PEGGY J. CRAWFORD, RDR, CRR, Official Reporter Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 2 of 124 227 APPEARANCES OF COUNSEL: For the Government: KAREN ESCOBAR BAYLEIGH J. PETTIGREW Assistant U.S. Attorneys 2500 Tulare Street, Rm. 4401 Fresno, California 93721 For the Defendant: FEDERAL DEFENDER'S OFFICE 2300 Tulare Street Suite 330 Fresno, CA 93721 BY: JANET BATEMAN ERIN SNIDER Assistant Federal Defenders Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 3 of 124 228 INDEX GOVERNMENT'S WITNESSES: ERIC CELEDON DIRECT EXAMINATION BY MS. ESCOBAR CROSS-EXAMINATION BY MS. SNIDER REDIRECT EXAMINATION BY MS. ESCOBAR RECROSS-EXAMINATION BY MS. SNIDER 237 238 252 258 259 JOSHUA NICHOLSON (Rebuttal) DIRECT EXAMINATION BY MS. ESCOBAR CROSS-EXAMINATION BY MS. BATEMAN 289 289 297 LEON McLIN (Rebuttal) DIRECT EXAMINATION BY MS. PETTIGREW 301 301 DEFENDANT'S WITNESSES: BARRY BOWSER DIRECT EXAMINATION BY MS. SNIDER CROSS-EXAMINATION BY MS. ESCOBAR REDIRECT EXAMINATION BY MS. SNIDER RECROSS-EXAMINATION BY MS. ESCOBAR FURTHER REDIRECT EXAMINATION BY MS. SNIDER FURTHER RECROSS-EXAMINATION BY MS. ESCOBAR 262 263 267 275 280 283 283 ***** EXHIBITS COURT'S Marked A 345 ***** GOVERNMENT'S 4 Received 251 Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 4 of 124 229 1 Wednesday, July 1, 2015 2 8:00 a.m. 3 (The following proceedings were had outside the presence 4 5 of the jury, to wit:) (Discussion was had off the record.) 6 7 THE COURT: 10 Back on the record. Counsel and defendant are now present. 8 9 Fresno, California Issue one is you found the e-mail that was being discussed in yesterday's testimony. 2014. It is dated October 6, I have just received it. 11 Does the defense want to do something with it? 12 MS. BATEMAN: Well, your Honor, I think we may need 13 to question Deputy Austin about it. 14 had a duty to report it to the FBI. 15 16 17 His testimony was that he This is an e-mail to Officer/Deputy Nicholson of the Kern Sheriff's. He also testified that he completed both the 18 questionnaire and made his report to the FBI within a day or 19 two of the incident on September 12th. 20 October 6th. 21 This e-mail is dated Also the first line of the e-mail says, "Here's the 22 form completed in a PDF," which indicates that there was a 23 prior communication. 24 just had the form in a different format. 25 Perhaps the form was transmitted in a hard copy. And that perhaps the prior communication I don't know. I'm not Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 5 of 124 230 1 sure. 2 3 But I can't tell from the text of this that this is the first reporting. 4 THE COURT: 5 MS. BATEMAN: 6 What's the issue? The issue is that the witness testified that he made the report to the FBI. 7 He didn't. The issue is that the witness testified that he made 8 a report within a day or two of the incident. 9 than three weeks later. 10 MS. ESCOBAR: This is more Your Honor, with respect to the timing, 11 Agent Officer Nicholson has indicated he would testify that he 12 became aware of the laser incident and had a telephonic 13 contact first, and then this was the first written 14 communication from Pilot Austin or from anyone involved in the 15 incident. 16 THE COURT: 17 MS. BATEMAN: What do you want to do? There is another inconsistent piece of 18 testimony from Deputy Austin who said his first report to the 19 FBI was in an e-mail, and now we are hearing it is in a phone 20 call. 21 MS. ESCOBAR: 22 THE COURT: 23 What do you want to do? 24 MS. BATEMAN: 25 That is not a report. Wait. I'm still here. Just a moment, your Honor. government is representing that Deputy -- If the Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 6 of 124 231 1 I'm sorry, are you Deputy? 2 MS. ESCOBAR: Both. 3 MS. BATEMAN: -- Deputy Nicholson is testifying, then 4 I think we could -- it would be our request to question him 5 about these details. 6 Deputy Austin and confront him with these differences. 7 THE COURT: Otherwise, we would want to recall Why don't you just let the government 8 finish with their case, I think they have one more witness, 9 and then just call him. 10 MS. BATEMAN: 11 THE COURT: That's fine, your Honor. The second issue is no issue, no problem 12 on the proposed instruction that was given to me this morning 13 on the Definition of Aiming by the defense? 14 MS. ESCOBAR: 15 THE COURT: 16 MS. ESCOBAR: No objection. What other issues? Your Honor, the potential admission of 17 prior recorded statements -- actually, portions of prior 18 recorded statements by the defendant to law enforcement, we 19 believe it is hearsay even if the defendant testifies, and I 20 do have cases indicating that. 21 There would be no basis for the admission of his 22 prior statements to corroborate whatever he says. 23 way to -- actually, I just, they are still hearsay. The only 24 And he has just edited out the self exculpatory 25 portions of prior statements that were actually made six Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 7 of 124 232 1 months after the laser incident, after he is aware there is a 2 federal charge. 3 4 THE COURT: I, frankly, don't know what you are talking about. 5 MS. ESCOBAR: Well, in the defense exhibits, they 6 have indicated they are perhaps going to use as evidence 7 certain prior statements. 8 made to the FBI at the time of his arrest in this case in 9 March. And they have edited statements he 10 THE COURT: Maybe I can cut through it a little bit. 11 What are you planning on doing? 12 MS. SNIDER: We do not intend to introduce those 13 statements in our case-in-chief, but we want to reserve the 14 right to use those statements in the event that the government 15 opens the door in any way if it is rebuttal evidence. 16 17 THE COURT: We will get in that boat, if we need to, together. 18 MS. ESCOBAR: We don't want to get in that boat. 19 MS. BATEMAN: We have one other issue, your Honor. 20 The Court has already ruled that if Mr. Bowser takes the 21 stand, his two prior convictions that were noticed under Rule 22 609 can come in. 23 One of his two convictions from 2004, is noted in the 24 complaint and the abstract of judgment as a violation of 25 California Penal Code 530.5(a). And it is noted on the Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 8 of 124 233 1 abstract of judgment by the clerk's notes as identity theft. 2 There is recent law from the California Supreme 3 Court -- excuse me, from the California Court of Appeals 4 stating that section 530.5 is more broadly written, that 530.5 5 does not require that a defendant falsely personate another 6 person. 7 appear in the statute and that the statute captures a broader 8 range of conduct and that identity theft is shorthand. 9 It notes that the words "identity theft" does not A person who has committed identity theft can be 10 convicted of or charged with 530.5, but identity theft is not 11 required to be convicted of 530.5 because it captures broader 12 conduct. 13 So we don't dispute that was what Mr. Bowser was 14 convicted of, but with the change in the law and the clerk's 15 note, it would be more accurate, if he does testify, that he 16 was convicted of what he was convicted of, which is this 17 offense, what it is titled. 18 THE COURT: 19 MS. BATEMAN: 20 Just a moment. 21 What's the title? The title is -- it is long, admittedly. Getting there. MS. ESCOBAR: Sorry. Your Honor, the complaint is listed as 22 an exhibit, Government's Exhibit 11. 23 that he: 24 25 And it does indicate "Did willfully and unlawfully obtain personal identifying information on Steven Miles without Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 9 of 124 234 1 authorization and used that information for an 2 unlawful purpose and to obtain and attempt to obtain 3 credit, goods, services, medical information in the 4 name of Steven Miles without consent." 5 And he pled guilty to, according to the court 6 minutes, identity theft, and that's Government's Exhibit 10. 7 And then the abstract of judgment is contained in the 8 969(b) package, and that's Government's Exhibit 8. 9 shows on the abstract of judgment, conviction for identity 10 And it theft. 11 And the reports indicate, too, he stole the identity 12 and used it at different establishments, representing himself 13 to be Steven Miles. 14 THE COURT: All right. I understand what you are 15 saying, but is it correct, what Ms. Bateman is saying, that in 16 the Penal Code section itself that is the subject of the 17 conviction, that it doesn't use those terms? 18 he has to have pled guilty to a statute. 19 guilty to a fact. In other words, He can't just plead 20 MS. ESCOBAR: Right. 21 MS. BATEMAN: I can read the statute. 22 THE COURT: 23 statute. 24 25 Why don't you show her the But what's the title of the statute? MS. ESCOBAR: theft." Well, no. I don't have -- I think it does have the word "identity Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 10 of 124 235 1 2 MS. BATEMAN: It does not. Identity theft does not appear anywhere in the title of the statute. 3 MS. ESCOBAR: It says, "to use the identity of 4 another," according to the state officer, who is familiar with 5 it. 6 7 THE COURT: The title of it is, "Unauthorized Use of Personal Identifying Information of Another Person." 8 I assume that's what you want. 9 MS. BATEMAN: 10 11 THE COURT: Yes. I don't know if there is a big difference. 12 MS. ESCOBAR: 13 THE COURT: 14 MS. ESCOBAR: It doesn't seem there is, your Honor. Okay. That's fine. What else? Well, your Honor, though, if the 15 defendant -- I think he is not disputing that he is the one 16 convicted because we do have a stipulation to that effect, in 17 which case, there would be no further inquiry. 18 But if he got up and said, "Well, I am not the 19 person," then I would need to use the abstract, which shows -- 20 and the fingerprints. 21 theft. And it shows conviction for identity But I think -- 22 MS. BATEMAN: 23 We agree he has the conviction. 24 25 THE COURT: stipulation, have I? We agree. We signed the stipulation. I don't think I have seen that Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 11 of 124 236 1 MS. ESCOBAR: No, your Honor. I wasn't even sure if 2 he was going to get up, but here is the -- the stipulation 3 isn't very -- that he was convicted -- 4 THE COURT: Let me just ask a different question 5 then. 6 that what you want me to read, or how are we going to approach 7 this? 8 9 Based on whatever the stipulation, however it reads, is MS. ESCOBAR: This is very vague, the stipulation, because it says, "The parties agree he was convicted of the 10 crime set forth in Government's Exhibit 8," which is the 11 prison package, which says, "identity theft." 12 need. 13 THE COURT: 14 MS. BATEMAN: So we might Why don't you revise your stipulation. The government sent us that 15 stipulation, and in an e-mail, said that we could take up this 16 issue because we told them we had an issue. 17 THE COURT: Okay. But now we have to decide what you 18 want me to tell the jury. 19 language or you can tell me what you want me to tell them. 20 21 MS. BATEMAN: THE COURT: 23 MS. BATEMAN: 25 I think telling the jury that he was convicted in 2002, of forgery -- 22 24 So I can come up with my own Two Thousand -We have no dispute about the 2002 forgery, and the 2004 -THE COURT: Unauthorized Use of Personal Identifying Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 12 of 124 237 1 Information of Another Person? 2 MS. BATEMAN: 3 THE COURT: 4 MS. ESCOBAR: 5 THE COURT: 6 MS. ESCOBAR: 7 THE COURT: 8 MS. ESCOBAR: 9 THE COURT: 10 11 That's fine. Yes, your Honor. Tell me when you want that. Should we just -- okay, we will. Okay. Anything else? No, your Honor. We are ready for the jury. Are you ready for the next witness? Is your witness here? 12 MS. ESCOBAR: 13 THE COURT: 14 Yes, yes. He is right outside. Could you bring him in, please. (The following proceedings were had in the presence of the 15 jury, to wit:) 16 THE COURT: The jury has joined us. Good morning, 17 ladies and gentlemen. Everybody looks physically solid. 18 Nobody got worked over last night by family members, so this 19 is good. 20 Any issues or concerns? 21 All right. 22 Next witness, please. 23 MS. ESCOBAR: 24 25 That's fine. The government will call Officer Celedon. ERIC CELEDON, ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 13 of 124 238 1 called as a witness on behalf of the Government, having been 2 first duly sworn, testified as follows: 3 THE COURT: Please take the witness stand right here 4 and tell us who you are, if you would, and when you do, spell 5 your last name for us. 6 7 THE WITNESS: Last name is spelled C-e-l-e-d-o-n. 8 9 My name is Eric Celedon. DIRECT EXAMINATION BY MS. ESCOBAR: 10 Q. Would you state your occupation for the record. 11 A. I'm a sworn police officer for the City of Bakersfield, 12 ma'am. 13 Q. How long have you been so employed? 14 A. About a year and a half. 15 Q. And where are you assigned? 16 A. At the Patrol Division within the department, ma'am. 17 Q. How long have you been in the Patrol Division? 18 A. For about a year and a half. 19 Q. So the whole time with Bakersfield, you have been assigned 20 to Patrol? 21 A. Yes, ma'am. 22 Q. What do your duties encompass as a patrol officer? 23 A. To uphold the laws of the State of California. 24 Q. Do you respond to calls for assistance? 25 A. Yes, ma'am. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 14 of 124 239 1 Q. Do you have a call sign, a particular call sign? 2 A. I do, ma'am. 3 Q. What is the call sign? 4 A. At this current time, it is 1-Metro-6. 5 Q. In September of 2014, what was it? 6 A. 1-Baker-41. 7 Q. And is that also referred in dispatch recordings as 8 1-B-41? 9 A. Yes, ma'am. 10 Q. Your call sign? 11 A. Yes, ma'am. 12 Q. Have you received any training on lasers? 13 A. Yes, ma'am. 14 Q. What's the nature of your training? 15 A. Every shift, the Kern County Sherriff's Office Air-1 team 16 comes in and they provide us with briefing training which 17 pertains to their limitations, as well as the capacity in 18 which we can use them, as well as laser strikes and the way it 19 affects them in operating the machinery. 20 Q. 21 Unit of the Kern County Sheriff's Office? 22 A. Yes, ma'am. 23 Q. Specifically, training with respect to Air-1? 24 A. Yes, ma'am. 25 Q. What did you learn with respect to lasers and Air-1? And that just designates who you are? Have you received any information from the Air Support ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 15 of 124 240 1 A. The fact that a pilot or observer is struck with a laser, 2 it can blind them. 3 Q. 4 incidents? 5 A. Yes. 6 Q. And what kind of laser did they involve? 7 A. Just a beam laser, a green laser or red laser. 8 Q. And involving the illumination of -- 9 A. Of a cockpit. 10 Q. -- of an aircraft? 11 A. Yes, ma'am. 12 Q. Were you on duty on the night of September 11th and 12th, 13 the night and early morning hours of September 11th and 12th? 14 A. Yes, ma'am. 15 Q. Where were you assigned at that time? 16 A. I was assigned to the Patrol Division, northeast 17 Bakersfield. 18 Q. 19 marked Government's Exhibit A, can you tell us the general 20 area where you were assigned, in the northeast, you said? 21 A. Yes, ma'am. 22 Q. So where in relation to -- Have you been involved in the investigation of prior laser And showing you what is previously admitted into evidence, 23 THE COURT: 24 MS. ESCOBAR: 25 THE COURT: Is that Exhibit 1-a? I'm sorry, it is 2-a. Thank you. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 16 of 124 241 1 BY MS. ESCOBAR: 2 Q. Is the area depicted on the map on 2-a? 3 A. A portion of it, yes, ma'am, the lower right-hand corner. 4 Q. Lower right-hand corner. 5 area? 6 A. Yes, ma'am. 7 Q. And around 12:25 a.m., did you receive a call for 8 assistance? 9 A. I did. 10 Q. And what was the nature of the call? 11 A. Air-1 was requesting assistance for a subject who had just 12 struck their aircraft with a laser. 13 Q. Where were you dispatched to? 14 A. I was dispatched to the area of Gulf Street and Arrow 15 Street. 16 Q. 17 Government's Exhibit 2-b, is Gulf Street accurately depicted, 18 the area you were dispatched to, on 2-b? 19 A. Yes, ma'am. 20 Q. How far was this Gulf and Arrow area from where you were? 21 A. I would say within five miles. 22 Q. How long did it take to get to the Gulf and Arrow area? 23 A. Just a couple minutes. 24 Q. Did you receive any information from Air-1 prior to your 25 arrival? So you were in this general Showing you what's already been admitted into evidence as ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 17 of 124 242 1 A. Yes, ma'am. 2 Q. What was the nature of your information? 3 A. They gave me a brief description of the subject who had 4 struck them with a laser. 5 in his 50s, wearing no shirt and camouflage shorts, and they 6 observed him enter a white motor home on the property. 7 Q. 8 to depicted within the yellow border line area? 9 A. They described him as a white male, And where is the property that you were -- that you went In the -- I was directed to the lower left portion of the 10 yellow outline there. 11 Q. 12 monitor, can you indicate for us and touch the monitor where 13 you went to? 14 A. Yes, ma'am. 15 Q. And was that -- what -- did Air-1 provide any other 16 information to you? 17 A. 18 participated in a hand-to-hand exchange with an SUV that had 19 fled prior to my arrival. 20 Q. When you got there, did you see an SUV? 21 A. I did not. 22 Q. Where was Air-1 when you responded to this gate? 23 A. It was still orbiting around the property. 24 Q. And you could see it clearly? 25 A. Yes, ma'am. Okay. And -- one moment. I think if you just use the (Witness Complies.) Other than that prior to my arrival, the subject had ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 18 of 124 243 1 Q. What did you do when you arrived at that location? 2 A. I attempted to locate an entry point to the property. 3 Q. Was the property address 3501 North Sillect Avenue? 4 A. Yes, ma'am. 5 Q. Was the property fenced in? 6 A. Yes, ma'am. 7 Q. And how was it fenced in? 8 A. There was a locked gate, as well as the entire perimeter 9 was secured by razor wire. 10 Q. Was there any vegetation or trees around the property? 11 A. Yes, ma'am, there were. 12 Q. And does the photograph fairly represent or depict the 13 fact that there were trees in the area? 14 A. Yes, ma'am. 15 Q. Were the trees tall? 16 A. I believe so, ma'am. 17 Q. What did you do? 18 property? 19 A. Yes, ma'am. 20 Q. And was there a gate that was locked -- 21 A. Yes, ma'am. 22 Q. -- at that location? 23 gate? 24 A. 25 however, it was locked. So you went to the rear gate of the What did you do when you got to the When I got to the gate, I attempted to make entry; ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 19 of 124 244 1 Q. So what did you do? 2 A. I did. 3 Q. Was there anyone there? 4 A. Not that I initially saw. 5 Q. How did you look into the property? 6 A. It was a chain link fence, so I could clearly see through 7 the chain link fence. 8 Q. Did you use a flashlight to look into the property? 9 A. I did. 10 Q. Did you call out to anyone? 11 A. Not that I recall initially, no. 12 Q. Was the spotlight or the night sun on from Air-1? 13 A. I believe he may have momentarily showed me the location 14 using the night sun, but I don't remember it constantly being 15 on the location, no. 16 Q. 17 individual later known to you as Barry Bowser? 18 A. Yes, ma'am. 19 Q. Is he present in court today? 20 A. Yes, ma'am. 21 Q. Would you identify him for the record? 22 A. Yes, ma'am. 23 shirt, to my right. 24 THE COURT: 25 /// Did you look into the property? At about 12:37 a.m., did you come in contact with an He is sitting at the table, with the yellow He has been identified. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 20 of 124 245 1 BY MS. ESCOBAR: 2 Q. How is it that you came in contact with the defendant? 3 A. He exited the motor home, and then I called him to our 4 location. 5 Q. What did he do when he met with you? 6 A. He unlocked the gate and engaged in conversation with me. 7 Q. I'm also showing you what's already been admitted in 8 evidence as Government's Exhibit 1-d. 9 A. Yes, ma'am. 10 Q. And what does 1-d depict? 11 A. That is the motor home that was on the property that 12 Mr. Bowser exited that evening. 13 Q. 14 and accurately represent what you saw? 15 A. Yes, ma'am. 16 Q. And was this the area, general area where the motor home 17 was parked on the Sillect property? 18 A. Yes, ma'am. 19 Q. Under the awning, as depicted? 20 A. Yes, ma'am. 21 Q. When the defendant came to you and unlocked the gate, what 22 happened? 23 A. We began to engage in conversation. 24 Q. First, let me clarify. 25 in 1-d, where is it depicted on 2-b, the overhead? Do you recognize 1-d? Although the photograph indicates daytime, does it fairly Also the awning, which is depicted And if you ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 21 of 124 246 1 could just indicate using the monitor. 2 A. (Witness Complies.) 3 Q. Okay. 4 defendant -- did Air-1 indicate to you that the defendant was 5 the person that they had seen who had struck them with a green 6 laser? 7 A. 8 that struck them with the green laser. 9 Q. Were you talking to Tactical Flight Officer Storar? 10 A. I believe so. 11 Q. What was the defendant wearing when you came in contact 12 with him? 13 A. 14 this time, he was wearing a T-shirt. 15 Q. Did you have any conversation with the defendant? 16 A. I did. 17 Q. What was the nature of the conversation? 18 A. It pertained to whether he knew why I was there and 19 pertained to the laser strike of Air-1. 20 Q. Did he indicate whether he knew why you were there? 21 A. Yes. 22 Q. What did he indicate? 23 A. Because he had struck a helicopter with a laser. 24 Q. And that was his initial response to your initial inquiry, 25 "Do you know why we are here?" While in contact with the defendant, did the Yes, ma'am. They positively identified him as the subject I contacted him, he was wearing shorts as described, but ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 22 of 124 247 1 A. Yes, ma'am. 2 Q. Did he make any other statement? 3 A. He also advised that he was testing -- he had just found 4 the laser, had just replaced the batteries and was testing its 5 capabilities. 6 Q. Did you ask where the laser was? 7 A. I did. 8 Q. What did he say? 9 A. He advised that he gave it to a person who he identified 10 only as Todd, as described in that hand-to-hand exchange 11 provided by Air-1. 12 Q. Did you ask him where Todd was? 13 A. I did. 14 Q. What did he indicate? 15 A. He was unable to provide any further information 16 pertaining to Todd. 17 Q. He didn't provide a last name? 18 A. No, ma'am. 19 Q. Did he indicate where Todd resided? 20 A. No, ma'am. 21 Q. Where was Air-1 during your conversation with the 22 defendant? 23 A. 24 area. 25 Q. Air-1, I believe, was still hovering, surrounding the While you were at the Sillect property, was there anyone ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 23 of 124 248 1 else, other than the defendant? 2 A. No, ma'am. 3 Q. What happened after he made a statement to you, this 4 initial statement in response to your question, "Do you know 5 why I'm here?" 6 A. That's when I placed him under arrest. 7 Q. And that was for a violation of a California? 8 A. Penal Code 247.5, yes, ma'am. 9 Q. What happened after you placed him under arrest? 10 A. I read him his rights pursuant to the Miranda decision and 11 obtained his official statement. 12 Q. 13 officially-issued department card? 14 A. Yes, ma'am. 15 Q. Did he indicate he understood his Miranda rights? 16 A. Verbally, he did, yes, ma'am. 17 Q. Did the defendant make a statement to you after he was 18 advised of his Miranda rights? 19 A. He did. 20 Q. Did you record the statement? 21 A. I did. 22 Q. Showing you -- You read him the Miranda rights pursuant to your 23 If I might approach the witness, your Honor? 24 THE COURT: 25 /// Sure. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 24 of 124 249 1 BY MS. ESCOBAR: 2 Q. 3 recognize this exhibit? 4 A. Yes, ma'am. 5 Q. Can you tell us what it is? 6 A. It is a copy of my conversation that I recorded with 7 Bowser that night. 8 Q. 9 made to you after he was given his Miranda rights? -- what's been marked as Government's Exhibit 4. Do you And is it a fair and accurate recording of his statement 10 A. Yes, ma'am. 11 Q. Have you had an opportunity to review the recording with a 12 transcript that was prepared and marked Government's Exhibit 13 4-a? 14 A. Yes, ma'am. 15 Q. And if you turn to the Government's Exhibit binder, and 16 identify Government's Exhibit, it is marked 4-a, is that the 17 transcript that you reviewed while listening to your 18 recording? 19 A. Yes, ma'am. 20 Q. Is it a fair and accurate transcription? 21 A. Yes, ma'am. 22 23 MS. ESCOBAR: The government would move to -- would ask permission to publish 4-a to the jury. 24 THE COURT: 25 MS. BATEMAN: Any objection? No objection. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 25 of 124 250 1 THE COURT: 2 MS. SNIDER: 3 THE COURT: 5 MS. ESCOBAR: 6 THE COURT: I don't think it's been moved. We intend to use it to help the jury. Just so we are clear, is there an objection? 8 9 Your Honor, we would request an instruction that 4-a is not evidence. 4 7 All right. MS. SNIDER: No, your Honor, other than the transcript itself is not evidence. 10 THE COURT: Well, hang on just one second there. 11 Ordinarily, we don't show things that aren't in evidence to 12 the jury. 13 not objecting? 14 That's the request. MS. SNIDER: Are you objecting or you are I'm not objecting to showing it to the 15 jury. I'm objecting on the grounds that we would like the 16 jury instructed that the audio recording itself is the 17 evidence and the transcript is merely an aid. 18 THE COURT: 19 MS. ESCOBAR: 20 THE COURT: 21 MS. ESCOBAR: 22 THE COURT: 23 24 25 problem. Are you planning on playing Exhibit 4? Yes, your Honor. And 4-a is only to help the jury? Yes, your Honor. Fine. And then we will collect them, no Thank you. MS. ESCOBAR: And I would move 4, the recording identified, into evidence. ERIC CELEDON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 26 of 124 251 1 THE COURT: Any objection? 2 MS. SNIDER: No objection. 3 THE COURT: That's received. 4 (Government's Exhibit 4 was received.) 5 MS. ESCOBAR: 6 THE COURT: 7 Ask to play 4. That's granted. Let's just let the jury get the transcript passed out first. 8 MS. ESCOBAR: Let me get this set up. 9 (The audio was played.) 10 BY MS. ESCOBAR: 11 Q. Was the defendant at all times coherent? 12 A. Yes, ma'am. 13 Q. And alert? 14 A. Yes, ma'am. 15 THE COURT: 16 MS. ESCOBAR: 17 THE COURT: 18 Are you done now with Exhibit 4? Yes, I am, your Honor. Why don't we collect them since the transcripts are not in evidence. 19 (The transcripts were collected from the jury.) 20 BY MS. ESCOBAR: 21 Q. Was the evening clear? 22 A. Yes, ma'am. 23 Q. Were you able to clearly see Air-1 as it was orbiting? 24 A. Yes, ma'am. 25 Q. Could you see the lights on Air-1? ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 27 of 124 252 1 A. Yes, ma'am. 2 MS. ESCOBAR: 3 THE COURT: 4 No further questions. Cross-examination? CROSS-EXAMINATION 5 BY MS. SNIDER: 6 Q. Good morning, Officer. 7 A. I'm good. How are you? 8 Q. I'm good. So I understand this correctly, you arrived to 9 the scene five, ten minutes after the report of the laser How are you doing? 10 strike; is that correct? 11 A. Approximately, ma'am, yes. 12 Q. You didn't see the helicopter get struck by the laser, 13 correct? 14 A. No, ma'am. 15 16 THE COURT: Wait a minute. "No," you didn't? Or "no," it is not correct? 17 THE WITNESS: No, I did not see the helicopter get 18 struck by the laser. 19 BY MS. SNIDER: 20 Q. 21 correct? 22 A. I did not see him, ma'am, no. 23 Q. Everything you know about this laser incident came from 24 what other people told you; is that correct? 25 A. And you did not see Mr. Bowser with a laser pointer, Yes, ma'am. ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 28 of 124 253 1 Q. All right. Now, I'm assuming that you are pretty familiar 2 with this area, you patrol it? 3 A. Yes, ma'am. 4 Q. All right. 5 would that be an accurate statement? 6 A. Yes, ma'am. 7 Q. And there is some radio antennas in the area? 8 A. I believe so, ma'am, yes. 9 Q. So communication towers. And there is -- it is an industrial area; Now, when you came to the 10 property, you testified that Air-1 was still in the air, 11 correct? 12 A. Yes, ma'am. 13 Q. And the spotlight, it was on when you arrived? 14 A. I believe so, ma'am, yes. 15 Q. Okay. 16 have the spotlight on the property when you arrived? 17 A. I never testified to that. 18 Q. Is that an accurate statement? 19 A. I don't recall if he said that. 20 Q. When you arrived at the property, it is surrounded by a 21 fence, correct? 22 A. Yes, ma'am. 23 Q. And it is a barbwire fence or razor wire? 24 A. Yes, ma'am. 25 Q. And there is a gate? And in fact, Deputy Storar had told you he would ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 29 of 124 254 1 A. Yes, ma'am. 2 Q. And the gate was locked? 3 A. Yes, ma'am. 4 Q. Now, Barry, he met you at the gate, correct? 5 A. Yes, ma'am. 6 Q. He unlocked the gate? 7 A. Yes, ma'am. 8 Q. And he walked out? 9 A. Yes, ma'am. 10 Q. Officer, at the time that you arrived, you are pretty sure 11 you have the right location, correct? 12 A. Yes, ma'am. 13 Q. There is no question that you showed up at the wrong one? 14 A. No, ma'am. 15 Q. And you placed Mr. Bowser in handcuffs? 16 A. Yes, ma'am. 17 Q. And you placed him in the back of the patrol car? 18 A. Yes, ma'am. 19 Q. So at the time of the statements that we just heard, the 20 recorded statements, Mr. Bowser is sitting in the back of the 21 patrol car, in handcuffs, correct? 22 A. Yes, ma'am. 23 Q. Now, Barry, he seems to understand why you were there, 24 correct? 25 A. Yes, ma'am. ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 30 of 124 255 1 Q. Now, the prosecutor has already played the recording, and 2 I'm not going to play it for you again, but it is a pretty 3 short recording, correct? 4 A. Yes, ma'am. 5 Q. A little over three minutes; does that sound accurate? 6 A. Yes, ma'am. 7 Q. You start by introducing yourself? 8 A. Yes, ma'am. 9 Q. And you have to look for your department-issued Miranda 10 card? 11 A. Yes, ma'am. 12 Q. And then you read Mr. Bowser his Miranda rights? 13 A. Yes, ma'am. 14 Q. And that takes 40 seconds; does that sound right? 15 A. Yes, ma'am. 16 Q. Give or take? 17 happened that evening with Mr. Bowser, correct? 18 A. Yes, ma'am. 19 Q. This entire discussion lasts, taking out the 40 seconds 20 that you are reading him his Miranda rights, a little over two 21 minutes, right? 22 A. Yes, ma'am. 23 Q. And Barry tells you that he doesn't know what helicopter 24 was in the air that night, correct? 25 A. Correct. And then you go on and you discuss what ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 31 of 124 256 1 Q. And he tells you, "I just pointed it up. I heard 2 something. 3 helicopter, pretty much," correct? 4 A. Yes, ma'am. 5 Q. And you suggest to him that he was testing his aim, 6 correct? 7 A. Yes, ma'am. 8 Q. And he says no? 9 A. Correct. 10 Q. And you go on and you suggest that he was aiming it at the 11 helicopter, correct? 12 A. 13 it, yes. 14 Q. 15 worked"? 16 A. I believe so. 17 Q. Did you ask him, "At the helicopter?" 18 A. Yes. 19 Q. Did he respond, "I guess"? 20 A. I believe so, ma'am, yes. 21 Q. Now, that wasn't the answer you were looking for, was it? 22 A. I wasn't looking for a particular answer. 23 Q. Well, you pressed him again and you said, "But you pointed 24 it towards the helicopter," correct? 25 A. I pointed it up in the air and there was a I don't recall me suggesting it, but I remember mentioning Did Mr. Bowser say, "I was just pointing to see if it Does that sound right? Yes, ma'am. ERIC CELEDON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 32 of 124 257 1 Q. And that's a "yes" or "no" question, right? 2 A. Yes. 3 Q. But he didn't give you a "yes" or "no" answer, did he? 4 A. No. 5 Q. In fact, he said, "I guess I did"? 6 A. Yes, ma'am. 7 Q. And you said, "What do you mean, you guess? 8 did or you didn't," correct? 9 A. Correct. 10 Q. So he wasn't giving you the "yes" or "no" answer you were 11 looking for? 12 A. Correct. 13 Q. You didn't ask him what he meant when he said, "I guess," 14 did you? 15 A. I don't believe so. 16 Q. You didn't ask him to clarify? 17 A. No. 18 Q. You never asked him whether it was an accident, did you? 19 A. No. 20 Q. You never asked him whether it was a mistake? 21 A. No. 22 Q. You never asked him whether he intentionally aimed the 23 laser beam at the helicopter? 24 A. 25 Either you No, ma'am. MS. SNIDER: I don't have any further questions. ERIC CELEDON - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 33 of 124 258 1 THE COURT: 2 MS. ESCOBAR: 3 Any redirect? Yes, your Honor. REDIRECT EXAMINATION 4 BY MS. ESCOBAR: 5 Q. 6 jail? 7 A. Yes, ma'am. 8 Q. Did he ever, during that time, make any statement to you 9 about this was an accident or that he was just pointing the Were you the one who transported the defendant to the 10 laser at a radio tower or a transmission communication device 11 or something else other than the helicopter? 12 A. No, ma'am. 13 Q. In fact, during your initial confrontation with him, he 14 immediately responded he knew why you were here? 15 A. Yes, ma'am. 16 Q. And it was because he was aiming the laser at a 17 helicopter? 18 A. Yes, ma'am. 19 Q. During the recording, he made a statement that before 20 that, he was sleeping, I guess -- before Todd, whatever his 21 last name was, arrived, he was sleeping. 22 Did the defendant appear to be drowsy, sleepy, or 23 otherwise not communicative? 24 A. No, ma'am. 25 Q. And he never provided any other explanation between the ERIC CELEDON - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 34 of 124 259 1 time you encountered him at the gate and during your contact 2 with him? 3 A. No, ma'am. 4 MS. ESCOBAR: 5 MS. SNIDER: 6 No further questions. Just one moment, your Honor. RECROSS-EXAMINATION 7 BY MS. SNIDER: 8 Q. 9 questioning Mr. Bowser, you asked him, "Why did we come out Officer Celedon, just to clarify, when you began 10 here tonight," correct? 11 A. Yes, ma'am. 12 Q. And his response was, "Because I was -- I got a laser 13 pointer working and pointed it at a helicopter," correct? 14 A. I believe so. 15 Q. And he never stated that he was intentionally aiming the 16 laser pointer at that helicopter, correct? 17 A. 18 19 No, ma'am. THE COURT: "No," it is not correct, or "no," he did not? 20 THE WITNESS: No, he did not. 21 MS. SNIDER: 22 THE COURT: 23 MS. ESCOBAR: 24 THE COURT: 25 Next witness, please. I have no further questions. Any recross? No, your Honor. Thank you, sir. You may step down. Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 35 of 124 260 1 MS. ESCOBAR: 2 THE COURT: 3 Defense wish to call witnesses? 4 MS. SNIDER: 5 6 Your Honor, the government rests. All right. Your Honor, we are going to need a break to take up a legal issues. THE COURT: We have tried to take up legal issues 7 when you are on recess or after you left for the day, but the 8 law is very clear that there is one issue we have to take up 9 if it is made as soon as the government rests. 10 11 just happened. That's what There is a legal issue I have to take up. So I'm asking you to go back to the jury room. 12 Please don't discuss the case. It won't take long, and then 13 we will bring you right back out here. 14 (The jury left the courtroom.) 15 THE COURT: 16 MS. BATEMAN: The jury has left the courtroom. Thank you, your Honor. The defense 17 moves for Rule 29 motion, judgment of acquittal. Based on the 18 state of the government's case, we don't see how any 19 reasonable jury could find beyond a reasonable doubt that 20 Mr. Bowser is guilty of the offense charged. 21 Particularly, the government has not proved beyond a 22 reasonable doubt that Mr. Bowser did this act knowingly, that 23 is, intentionally. 24 THE COURT: Are you done? Okay. 25 The state of the evidence is that there were two Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 36 of 124 261 1 strikes, that they were within a few seconds of one another. 2 And there is expert testimony from yesterday afternoon 3 indicating that the duration of the -- first of all, the 4 number is important, and the duration and the combination of 5 the two based on the evidence is indicating of tracking. 6 Tracking, of course, is indicative of intentional 7 conduct. It is circumstantial evidence, and, therefore, it is 8 a jury issue, not a Court/legal preclusion issue, and Rule 29 9 motion is denied. 10 Anything else? 11 MS. BATEMAN: 12 we have a few minutes to speak with Mr. Bowser. 13 THE COURT: 14 MS. BATEMAN: 15 THE COURT: 16 MS. BATEMAN: 17 THE COURT: 18 19 Your Honor, we would just request that All right. You mean now? Before the jury comes back in. Now? Yes. Let me know when you are ready. (Recess) MS. BATEMAN: Your Honor, we will be ready whenever 20 the government comes back. 21 walk to the stand as opposed to being there when the jury 22 comes back in. 23 THE COURT: 24 MS. BATEMAN: 25 THE COURT: We would like to have Mr. Bowser Are you going to call him next? Yes. Could we have him taken to the stand, Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 37 of 124 262 1 2 please. (Pause in the proceedings.) 3 4 We will administer the oath when he is on the stand. Back on the record. Counsel are present. The defendant is on the stand. 5 Sir, so you know, I'm going to ask your attorney, 6 "Who do you wish to call," and they are going to say you, and 7 I'm going to say, "Raise your right hand and be sworn." 8 9 You don't have to stand up and raise your right hand, and that will be fine. 10 11 MS. BATEMAN: have to have the jury excused again. 12 13 When his testimony is complete, we will THE COURT: No problem. Are we ready for the jury? Okay. 14 Any problem when they come in if he stands? 15 MARSHAL: 16 THE COURT: 17 No, your Honor, that's fine. If that's what you want to do. (The following proceedings were had in the presence of the 18 jury, to wit:) 19 THE COURT: All right. 20 and the jury has joined us. 21 Okay. We are still on the record Any issues, ladies and gentlemen? 22 Who does the defense wish to call? 23 MS. SNIDER: 24 25 Your Honor, we would call Barry Bowser. BARRY BOWSER, called as a witness on behalf of the Defendant, having been BARRY BOWSER - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 38 of 124 263 1 first duly sworn, testified as follows: 2 THE COURT: Have a seat, please. And then pull your 3 chair up to the microphone, adjust the microphone so you can 4 speak directly into it, and tell us who you are, please. 5 THE WITNESS: 6 My name is Barry Bowser, B-o-w-s-e-r. DIRECT EXAMINATION 7 BY MS. SNIDER: 8 Q. Good morning, Mr. Bowser. 9 A. A little nervous, to be honest with you. 10 Q. Mr. Bowser, why don't you start by telling us how old you 11 are? 12 A. I'm 52 years old. 13 Q. Where were you born? 14 A. Lompoc, California. 15 Q. What have you done in the past for a living? 16 A. 20 years in the oil fields, and then I became a certified 17 ASC mechanic. 18 Q. Mechanic? 19 A. Yeah. 20 Q. Mr. Bowser, in 2002, did you plead guilty to forgery? 21 A. Yes, I did. 22 Q. And in 2004, did you plead guilty to unlawfully using a 23 person identifying information of another person? 24 A. Yes, I did. 25 Q. Mr. Bowser, you were just placed under oath. How are you doing today? What does it BARRY BOWSER - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 39 of 124 264 1 mean to you to be placed under oath? 2 A. That means to tell the truth. 3 Q. I want to talk to you about what happened on September 12, 4 2014. 5 A. 6 there, in Bakersfield, California. 7 Q. On Moreland property. 8 A. Through a friend who works for the company. 9 asked if I could stay there. 10 Where were you living at that time? I was living in a motor home on the Moreland property How did you come to live there? I guess he He told me I could move my motor home in there and reside there -- 11 MS. ESCOBAR: Objection. 12 THE WITNESS: -- reside there for a couple of weeks. 13 THE COURT: 14 MS. ESCOBAR: 15 THE COURT: 16 Yes, it is. Hearsay. Sustained. Move to strike, your Honor. I assume that there is no issue as to whether or not he was legally on the property? 17 MS. ESCOBAR: 18 THE COURT: No issue. Next question. 19 BY MS. SNIDER: 20 Q. 21 have access to the property? 22 A. Yes, I did. 23 Q. So there was a gate and a combination lock on the gate? 24 A. Yes, there was. 25 Q. All right. Mr. Bowser, I'm assuming you are living there. Did you I had the combination to the gate. What were you doing around midnight, on BARRY BOWSER - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 40 of 124 265 1 September 12th? 2 A. Playing with a laser with my dog. 3 Q. What is your dog's name? 4 THE COURT: I need to back up just a second. The 5 objection is overruled because it is not being offered for the 6 truth of the statement, but rather it is offered to explain 7 why he was where he was. 8 9 So the objection is overruled. The testimony is in. It is not stricken. 10 Next question. 11 MS. SNIDER: Thank you, your Honor. 12 BY MS. SNIDER: 13 Q. 14 What's your dog's name? 15 A. My dog's name is the same last name as mine, Bowser. 16 Q. Your dog's name is Bowser. 17 Bowser? 18 A. We weren't playing very long. 19 Q. Please. 20 A. I was having problems with the laser. 21 the laser, and I was having problems getting the laser 22 working. 23 Q. Where did you get this laser? 24 A. Out of the motor home. 25 Q. How did it come to be in the motor home? We will back up. You said you were playing with your dog. How long were you playing with If I may elaborate on that? He liked to chase BARRY BOWSER - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 41 of 124 266 1 A. My friend purchased it for me, and I put it in that motor 2 home. 3 Q. 4 laser. 5 A. 6 like the officer said earlier. 7 kept not working. 8 the dog's attention with it, and it stopped working, and the 9 dog's attention went somewhere else. All right. And so you were playing with your dog with the What happened next? The laser kept -- I just put new batteries in the laser, And it was wore out and it And I kept finagling with it. And I had And I went up in the air 10 with it, and I heard the -- 11 Q. 12 were playing with the dog. 13 playing with the dog? 14 A. Yeah. 15 Q. What is the dog doing? 16 A. If I can keep it working, the dog is chasing the laser. 17 Q. You were playing with Bowser for, you said, a few minutes? 18 A. Yeah. 19 Q. What happens after Bowser loses interest? 20 A. And then I was having -- like I said, I was having trouble 21 even keeping the thing working. 22 went up in the air with it, and then I heard something and I 23 came back down, and it was a helicopter, what I heard. 24 25 Mr. Bowser, I'm going to stop you right there. So you Can you explain how you were I was shining it against the fence. And I got it working and I And I guess -- and so I struck the helicopter when I came back down with it. BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 42 of 124 267 1 Q. All right. So you heard something. 2 were hearing when you first heard it? 3 A. 4 was, but after a couple seconds, I realized what it was, yes. 5 Q. 6 intentionally aim the laser beam at the helicopter? 7 A. Not at first. All right. Did you know what you It took a minute for it to register what it Mr. Bowser, let me ask you, did you No, I did not. 8 MS. SNIDER: 9 THE COURT: I have no further questions. Cross-examination. 10 CROSS-EXAMINATION 11 BY MS. ESCOBAR: 12 Q. So the laser pointer was yours, it belonged to you, right? 13 A. Yes, ma'am. 14 Q. And the laser pointer had a danger warning on it, correct? 15 A. No, it did not, ma'am. 16 Q. Do you know that the FDA requires that laser pointers have 17 a danger warning? 18 A. 19 was the size of an ink pen, and it had no warning on it. 20 Q. 21 pointing a laser at someone's eyes? 22 A. No, not really, I wasn't. 23 Q. Or pointing it into an area where someone's vision would 24 be obstructed? 25 A. You know what? I wondered the same thing, but this one It had no warning. You were not aware of the dangers of With this specific laser, ma'am, I didn't think it was no BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 43 of 124 268 1 big deal. It was just a little tiny laser, like the one you 2 buy at Petco. 3 Q. 4 beam expand? 5 A. No, I did not. 6 Q. It was a very bright green laser, was it not? 7 A. When I could get it to work, yes, it was, ma'am. 8 Q. And your testimony here is you just went up in the air 9 with the laser? If you pointed it in the air, did you not see the laser 10 A. When the dog's attention was off of it, I went up in the 11 air with it, and then I heard the helicopter and I came back 12 down. 13 Q. You struck it two times? 14 A. I don't recall striking it. 15 laser when I heard the helicopter. 16 Q. 17 struck it; isn't that correct? 18 A. 19 It wouldn't stay together. 20 It was just a twist-together. 21 Q. It was a twist-together? 22 A. Yes, ma'am. 23 Q. And you didn't activate it with a button? 24 A. No, ma'am. 25 Q. Did you tell the truth to Officer Celedon about Todd? I came back down with the You took your finger off the laser pointer after you first No, ma'am. I had to twist it together to get it to work. There was no button or nothing. BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 44 of 124 269 1 A. No, I didn't, ma'am. 2 Q. So you lied to Officer Celedon when he asked you where the 3 laser was? 4 A. Yes, I did. 5 Q. Did you leave the Sillect property or the Moreland 6 property in October? 7 MS. SNIDER: Objection, your Honor. 8 is precluded by the Court's prior order. 9 scope of direct. 10 11 12 13 14 15 16 Rule 403 as well. THE COURT: I need to have a quick sidebar to see where we are going with this so I can rule. (The following proceedings were had at the sidebar, to wit:) THE COURT: are present. All right. We are at sidebar. Counsel The defendant is not. Waived? 18 MS. SNIDER: 19 THE COURT: Yes. I know where you are going with your objection, obviously. 21 Where are you going? 22 MS. ESCOBAR: 23 It is beyond the It is irrelevant, and it is precluded under 17 20 This testimony Just that he left the state and had someone check to see for warrants before he returned. 24 THE COURT: 25 MS. ESCOBAR: What's the relevance of it? It relates to his knowledge of BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 45 of 124 270 1 wrongdoing, consciousness of guilt. 2 THE COURT: I thought we had a discussion about this 3 pretrial where there would have to be some indication that he 4 knew that there were -- somebody was investigating and there 5 were charges, and I haven't heard any evidence of that. 6 MS. ESCOBAR: He did tell the San Luis Obispo County 7 deputy when he was arrested on the outstanding warrant that 8 the FBI had contacted him about the laser incident. 9 THE COURT: 10 MS. ESCOBAR: 11 THE COURT: 12 MS. ESCOBAR: 13 THE COURT: 14 sustained. 15 That was when? That was in March. Before he left? We don't know when the contact is. That's the problem. It is not relevant. (The proceedings at the sidebar were concluded.) 16 MS. ESCOBAR: One moment, your Honor. 17 BY MS. ESCOBAR: 18 Q. 19 Luis Obispo County deputy -- Okay. Six months after this incident, did you tell a San 20 MS. SNIDER: 21 the scope of direct. 22 23 24 25 The objection is THE COURT: Objection, your Honor. This is beyond Once more, see where we are going with it. (The following proceedings were had at the sidebar, to wit:) BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 46 of 124 271 1 THE COURT: Counsel are again present. 2 Waiving your client? 3 MS. SNIDER: 4 THE COURT: Yes. I don't know whether it is or not, 5 because I don't know what the reason for it. 6 to impeach him, obviously, it is relevant. 7 Where are you going? 8 MS. ESCOBAR: 9 Here's the question. If it is going He told the deputy that he didn't have problems working the laser, that it 10 was functioning properly, and he was just trying to see how 11 far the laser went. 12 MS. SNIDER: 13 THE COURT: 14 He said it went up pretty far. If that's where you are going, go ahead. It's relevant. 15 (The proceedings at the sidebar were concluded.) 16 BY MS. ESCOBAR: 17 Q. 18 told a San Luis Obispo -- did you tell a San Luis Obispo 19 County Sheriff deputy that you didn't have any problems with 20 the laser working? 21 A. I don't recall that, what you are asking me there. 22 Q. Did you state to Deputy Roach that "The laser does go up 23 there pretty far, but I wasn't like I was chasing the 24 helicopter with the laser. 25 yard, and I put it up in the air. Six months after this incident, in March of this year, you We were just playing around in the And sure enough, when I put BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 47 of 124 272 1 it up in the air, the laser beam struck the helicopter"? 2 A. I don't recall that, ma'am. 3 Q. Do you recall having a conversation with the San Luis 4 Obispo County deputy, sheriff's deputy? 5 A. I vaguely do. 6 Q. And you made no mention of the fact that you had to twist 7 the laser to turn it on and that you had difficulty turning it 8 on and off? 9 A. Like I just told you; is that what you are saying? 10 Q. Right. 11 A. I believe so. 12 Q. You don't recall saying, "It does go up pretty far"? 13 A. When I got the beam to work, it did seem like it was 14 pretty bright, if that's what you are getting at, ma'am, but I 15 had trouble getting it to work. 16 Q. When you told -- 17 A. And I figured it was because I had new batteries in it. 18 Excuse me. 19 Q. 20 before Todd came that night, that also wasn't the truth? 21 A. 22 some food, and that's why I got up and that's why I was 23 outside, killing time, waiting for him to show up with my 24 food. 25 Q. When you told Officer Celedon that you had been sleeping Well, I got a phone call saying he was going to bring me Before Todd came, you were not asleep in the motor home, BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 48 of 124 273 1 correct? 2 A. I was asleep. 3 Q. But after that, you were out playing with the laser in the 4 yard? 5 A. I was waiting for Todd to show up, ma'am. 6 Q. And -- 7 A. With my food. 8 Q. But you were not asleep before Todd showed up. 9 playing with the laser, correct? He called me and woke me up. You were 10 A. I got a phone call, and I went outside, waiting for him to 11 show up with my food, but I was asleep prior to the phone 12 call, ma'am. 13 So I went outside to kill the time while I was 14 waiting for him to show up because I was inside a locked gate, 15 and he couldn't get inside there. 16 observe when he pulled up, and I started playing with the 17 laser with the dog. 18 Q. 19 before you were playing with the laser? 20 A. Ma'am, I was asleep before I played with the laser. 21 Q. But you didn't tell him that, right? 22 A. I believe I did. 23 Q. And you did not tell Officer Celedon the truth about Todd, 24 correct? 25 A. So I went outside to You didn't tell Officer Celedon that you were asleep The only thing I didn't tell him the truth about was about BARRY BOWSER - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 49 of 124 274 1 the laser, ma'am. 2 Q. 3 what his last name was or where he was? 4 A. I don't know his last name, ma'am. 5 Q. You also told Officer Celedon that you did not know the 6 phone number for Todd, correct? 7 A. That's right. 8 Q. And yet you indicated you had a phone conversation with 9 him earlier about the enchiladas? You didn't tell the officer who Todd was when he asked you 10 A. Yes. He called me, ma'am. 11 Q. He knows your number, but you didn't know his and you 12 didn't know how to get in contact with him? 13 A. That's correct. 14 Q. All right. 15 not -- you were not truthful with Officer Celedon about Todd, 16 and you don't recall here today that you told Deputy Roach 17 that the laser goes up pretty far? 18 A. 19 confusing me. 20 making it more than what it is. 21 Q. You made the statements that we heard today, correct? 22 A. Correct. 23 Q. And you didn't tell Officer Celedon the complete truth 24 when he asked you then what happened, right? 25 A. But you are admitting today that you did Ma'am, you are twisting it all up on me, ma'am. You are It is like the officers did that night; you are I told him the truth, but when he asked me about what I BARRY BOWSER - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 50 of 124 275 1 did with the laser is where I did not tell him the truth, 2 ma'am. 3 Q. So it was okay at that time not to tell the truth? 4 A. Ma'am, I can't say I thought about this. 5 I didn't tell him the truth, ma'am. 6 didn't tell him the truth about the laser. 7 Q. 8 dishonesty, correct? 9 A. If that's what you call them. 10 Q. Forgery? 11 A. Yes, ma'am. 12 Q. And using someone else's identity? 13 A. Over a decade ago. I don't know why I have no idea why I You have been convicted in the past with crimes involving Over a decade ago, ma'am. 14 MS. ESCOBAR: 15 THE COURT: 16 No further questions. Redirect? REDIRECT EXAMINATION 17 BY MS. SNIDER: 18 Q. 19 experience when Officer Celedon was questioning you? 20 A. Which one is Celedon, the Bakersfield police officer? 21 Q. The Bakersfield police officer. 22 A. What are you asking me? 23 Q. How were you feeling at the time you were being 24 questioned? 25 A. Mr. Bowser, what kind of emotions did you have, did you I felt like he was putting words in my mouth. BARRY BOWSER - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 51 of 124 276 1 Q. All right. And this was -- describe to me again. When is 2 he questioning you? 3 A. On our journey back to the downtown jail. 4 Q. You lied to Officer Celedon, correct? 5 A. Yes, I did. 6 Q. Why? 7 A. I have no idea. 8 Q. Do you feel like you had enough time to tell Officer 9 Celedon what happened? 10 A. He was kind of putting the words in there for me and I was 11 just agreeing with him, I believe. 12 Q. 13 out what you had to say? 14 A. No. 15 Q. Before Officer Celedon, the Bakersfield police officer, I 16 want to make that clear, before the officer starts questioning 17 you, do you already feel like you are going to jail that 18 night? 19 A. 20 up. 21 Q. What did you do with the laser that night? 22 A. I put it in the motor home. 23 Q. How fast did everything occur on September 12th? 24 A. This whole incident, ma'am, took approximately ten seconds 25 for everything, all this to happen, it was over. Do you feel like Officer Celedon was interested in finding I was already in the car, ma'am. I was already handcuffed It lasted, BARRY BOWSER - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 52 of 124 277 1 like they indicated yesterday, one to two seconds, and the 2 helicopter and everything. 3 They were on top of me. 4 Q. Do you remember every detail from that night? 5 A. Most, yes. 6 Q. And the prosecutor asked you about a conversation you had 7 with Deputy Roach. 8 Do you remember that? 9 A. Vaguely. 10 Q. Yes. 11 A. Six months later? 12 Q. Yes. 13 A. Yes. 14 distraught about them taking my dog from me. 15 Q. This was over in ten seconds. This would have been in San Luis Obispo. Is that the one from San Luis? That's the one from San Luis Obispo. I have a problem with that one because I was more Do you remember what you told him? 16 MS. ESCOBAR: 17 THE COURT: 18 MS. ESCOBAR: 19 THE COURT: 20 THE WITNESS: Objection. Legal ground? Withdrawn, your Honor. Withdrawn. "Yes" or "no"? What was the question again? 21 BY MS. SNIDER: 22 Q. 23 Obispo deputy? 24 A. Honestly, I don't, ma'am. 25 Q. Do you have -- Do you remember what you told Deputy Roach, the San Luis BARRY BOWSER - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 53 of 124 278 1 One moment. 2 (Defense counsel conferred off the record.) 3 BY MS. SNIDER: 4 Q. 5 statement to Officer Roach, would that refresh your 6 recollection as to what you said to him? 7 A. 8 9 Mr. Bowser, if you listened to a recording of your Yeah. MS. SNIDER: Your Honor, at this time, we would ask to play Exhibit B. 10 THE COURT: 11 MS. SNIDER: 12 MS. ESCOBAR: 13 THE COURT: Is Exhibit B in evidence? Not yet, your Honor. Your Honor, we would object. It is -- the objection is sustained. 14 is hearsay. 15 to attempt to refresh. 16 17 Hearsay. It Something does not have to be in evidence for you However, you can't refresh something that is not in evidence in front of the jury. If you are asking for a -- 18 How long is this recording? 19 MS. SNIDER: Just a couple of minutes, your Honor. 20 THE COURT: If you are asking permission to attempt 21 to refresh the recollection of this witness now, you just need 22 to make that request, and I will ask the jury to go into the 23 jury room. 24 25 MS. SNIDER: another way. Your Honor, I think I can get at this BARRY BOWSER - RD Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 54 of 124 279 1 THE COURT: That's fine. 2 BY MS. SNIDER: 3 Q. 4 statement to Deputy Roach, would that refresh your 5 recollection? 6 A. Mr. Bowser, if you were to see a transcript of your Yes. 7 8 MS. SNIDER: Honor. 9 10 THE COURT: Granted. She is just asking you to read this to yourself. 11 THE WITNESS: 12 THE COURT: 13 Permission to approach the witness, your Okay. Let us know when you are done reading it, will you? 14 THE WITNESS: 15 MS. SNIDER: 16 THE WITNESS: Do you want me to read the whole thing? Just to yourself. Okay. 17 BY MS. SNIDER: 18 Q. Did that refresh your recollection? 19 A. Yes, it did. 20 Q. What did you tell Deputy Roach? 21 A. The same thing I told the other officer there, about how I 22 put it up in the air, and when I put it up in the air, I heard 23 something, and I brought it back -- I turned. 24 25 When I heard it, I turned and I realized what -- it took a second for me to realize what that was, for me to BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 55 of 124 280 1 recollect it was a helicopter, and when I realized it was a 2 helicopter, I came right straight back down out of the air 3 with it. 4 MS. SNIDER: 5 THE COURT: 6 I don't have any further questions. Recross? RECROSS-EXAMINATION 7 BY MS. ESCOBAR: 8 Q. 9 Officer Celedon, correct? No one forced you to make the statements that you made to 10 A. "Celedon," being the Bakersfield PD? 11 Q. Yes. 12 A. Nobody forced me, no. 13 Q. He didn't have his weapon drawn? 14 A. No, ma'am. 15 Q. He didn't threaten you in any way? 16 A. No, ma'am. 17 Q. He told you that your statements could be used against you 18 in a court of law? 19 A. Yes. 20 Q. And you did not tell him that you needed to twist the 21 laser pointer on to get it working, and that there was no on 22 and off button, right? 23 A. I don't recall. 24 Q. Is that what you are testifying, that you had to twist it 25 to get it on and to turn it off? He read me my rights, ma'am. BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 56 of 124 281 1 A. Yeah. I had to screw it together to get it to work. 2 Unless the button was already on it, I'm not sure, but I had 3 to twist it to operate. 4 Q. 5 finger off the beam? 6 It just was operated by pressing a button? 7 A. No, ma'am. 8 Q. You don't recall that? 9 your Defendant's Exhibit A-1. Didn't you later tell the FBI that you just let your You didn't tell them about any twisting? I'm showing you what is marked as 10 A. 11 months later and I think I was a little -- I wasn't familiar. 12 Are you talking the one I made the statement about six You know, I had a lot of things going on. At that 13 time, they had just taken my dog from me, and I was distraught 14 over that, and so I didn't think that was a big issue, on how 15 you turned it on and off. 16 But you turn this specific laser on and off by 17 twisting it together, ma'am, and that's the bottom line. 18 Q. 19 beam was hitting the helicopter, I stopped right there, I let 20 my finger off that beam? 21 A. I just told you what I said, ma'am. 22 Q. Did you make that statement to the FBI, that you, "let my 23 finger off that beam"? 24 A. I don't believe so. 25 Q. You don't believe so? You don't recall telling the FBI, "After I realized the BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 57 of 124 282 1 A. I don't remember. 2 Q. If I show you your exhibit, would that help refresh your 3 recollection? 4 A. It sure would. 5 Q. Showing you -- 6 If I might approach, your Honor? 7 THE COURT: 8 BY MS. ESCOBAR: 9 Q. Sure. Defense Exhibit A-1, and I would direct your attention 10 to -- starts at the bottom of page 2 through page 3. 11 A. The bottom starts over here? 12 Q. Just if you would read "BB" for "Barry Bowser," what you 13 told the FBI. 14 A. It says it right there, ma'am. 15 16 THE COURT: It says -- Wait just a second. She is asking you to read it, and then she will ask you a question. 17 THE WITNESS: Oh. 18 BY MS. ESCOBAR: 19 Q. Does that refresh your recollection? 20 A. Yes. 21 Q. And did you tell the FBI that you just, "let my finger off 22 that beam"? 23 A. 24 of it, it shut off. 25 Yeah. I just let go of the whole thing, and when I let go MS. ESCOBAR: No further questions. BARRY BOWSER - RD/RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 58 of 124 283 1 THE COURT: 2 Anything else? FURTHER REDIRECT EXAMINATION 3 BY MS. SNIDER: 4 Q. Mr. Bowser, you testified that you talked to the FBI? 5 A. Excuse me? 6 Q. Did you just testify that you talked to the FBI? 7 A. I don't even know who the FBI was. 8 grand marshals. 9 by somebody in San Luis Obispo. FBIs are cops. I was told they were All I know is I got picked up 10 Q. And you spoke to the people who picked you up in San Luis 11 Obispo? 12 A. 13 was recorded on a conversation, yes, I was. On the ride back to Bakersfield from San Luis Obispo, I 14 15 MS. SNIDER: I don't have any further questions, your Honor. 16 FURTHER RECROSS-EXAMINATION 17 BY MS. ESCOBAR: 18 Q. 19 everything else was true, correct? You said you lied to Officer Celedon about the laser, but 20 MS. SNIDER: 21 THE COURT: 22 BY MS. ESCOBAR: 23 Q. 24 mutilated the laser? 25 A. This is beyond the scope of redirect. Sustained. Did you tell the FBI in March of this year that you I don't recall that. BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 59 of 124 284 1 Q. You don't recall? 2 A. No. 3 Q. If we played that portion of the recorded statement, would 4 that refresh your recollection? 5 A. I don't know about that. 6 Q. You don't recall making the statement that you mutilated 7 the laser in Arkansas? 8 9 MS. SNIDER: 12 THE COURT: All right. (The following proceedings were had at the sidebar, to wit:) 13 14 THE COURT: We are at sidebar with counsel, but not the defendant. 15 Waived? 16 MS. SNIDER: Waived. 17 been precluded. 18 about his move to Arkansas. 19 laser, that's in evidence now. 20 21 Permission to approach. 10 11 Objection, your Honor. Your Honor, this testimony has We haven't asked Mr. Bowser any questions The fact that he mutilated the Where he did it isn't relevant. We would ask that that stay out. 22 With regard to playing the statement to the FBI, the 23 fact that he is in Arkansas is part of that statement. 24 would request the Court exclude that because it is not 25 relevant. We BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 60 of 124 285 1 2 THE COURT: Here is the problem. She asked him the question without the Arkansas reference. 3 MS. BATEMAN: 4 THE COURT: 5 MS. BATEMAN: 6 THE COURT: And then she slipped it in. I got it. Be calm. Give me a minute. It is prejudicial -Wait. She asked the question without any 7 reference to Arkansas, and he said he didn't remember. 8 she asked him a more specific question about where he 9 mutilated it because he was not remembering telling anybody he 10 And did or didn't, and that's why it is permissible. 11 Just the fact that he is in Arkansas is no crime. 12 mean I don't think that that raises suspicions. 13 said, "Now, you up and fled to Arkansas," that's a different 14 issue, because then it is in violation of the Court order 15 because there is no indication that he did flee. 16 that's -- 17 MS. BATEMAN: If she had And Once he agrees to Arkansas, is the 18 argument going to be that that's now in evidence and we can 19 talk about it? 20 THE COURT: 21 MS. BATEMAN: 22 That's my question. Is that the next question from the government? 23 MS. ESCOBAR: 24 THE COURT: 25 You mean -- order. No. That would be in violation of the Court I BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 61 of 124 286 1 MS. BATEMAN: 2 MS. SNIDER: 3 Arkansas, that's it. 4 THE COURT: Okay. If this is the sole reference to And to argue now, in closing arguments, 5 that "He was in Arkansas for a good reason and you can figure 6 it out, ladies and gentlemen," would be a violation of the 7 Court order, and that wouldn't go well. 8 9 MS. ESCOBAR: THE COURT: 11 MS. ESCOBAR: 12 THE COURT: 13 MS. ESCOBAR: 14 THE COURT: 15 MS. BATEMAN: 16 THE COURT: 17 MS. SNIDER: 18 MS. BATEMAN: 20 21 22 23 We did withdraw the flight instruction. 10 19 Right. Where are we going? I'm done. We may have rebuttal. There is a question pending. The question? The question that excited Ms. Snider. We want that on the record, that he -There is a question. We would like the answer to that. Could we have the question read back. (The proceedings at the sidebar were concluded.) THE COURT: Would you please read the last question that's pending. (The question was read back as follows: "You don't recall making the statement that you 24 mutilated the laser in Arkansas?") 25 THE COURT: Go ahead and answer, if you can. BARRY BOWSER - RX Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 62 of 124 287 1 THE WITNESS: I don't recall. 2 MS. ESCOBAR: If I might approach the witness? 3 THE COURT: 4 MS. ESCOBAR: 5 All right. One moment, your Honor. Let me show this to the defense. 6 (Counsel conferred off the record.) 7 MS. ESCOBAR: Your Honor, I'm approaching the witness 8 with a document to refresh the witness' recollection. 9 BY MS. ESCOBAR: 10 Q. Direct your attention to where I'm pointing, and ask if 11 you could read the sentence to yourself, and see if it 12 refreshes your recollection. 13 A. Not really. 14 Q. Do you recall meeting with the FBI, including Task Force 15 Officer Josh Nicholson, in March of this year? 16 A. 17 with. 18 Q. 19 that laser after I realized what I had done and I got rid of 20 that thing"? 21 A. He was the driver of the FBI officer that I was involved He was this guy here, the driver, Josh. Right. Do you remember saying, "I ended up mutilating No, ma'am. 22 MS. ESCOBAR: 23 THE COURT: 24 MS. SNIDER: 25 your Honor. No further questions. Anything further? We have don't have anything further, Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 63 of 124 288 1 THE COURT: Ladies and gentlemen, let's take two 2 minutes, and we will come right back. 3 room. 4 Please don't discuss the case. 5 Go back to the jury I have to take up one quick issue. It won't take long. (The jury left the courtroom.) 6 THE COURT: The jury has left. The reason we took 7 the break is he is on the stand and we are not showing the 8 shackles. 9 What's the plan? 10 MS. BATEMAN: 11 THE COURT: 12 MS. ESCOBAR: 13 THE COURT: 14 MS. ESCOBAR: 15 THE COURT: 16 MS. ESCOBAR: We rest. Any rebuttal? Yes. Deputy Nicholson. What's your time estimate? Quick. And then? And then I think we would -- I don't 17 know if the defense would have anything afterward, but I think 18 we would be ready for jury instructions, and then a quick 19 break so that we could transfer my PowerPoint to here. 20 21 THE COURT: We are ready for the jury. (The following proceedings were had in the presence of the 22 jury, to wit:) 23 THE COURT: 24 jury has joined us. 25 That's fine. All right. Next witness. Still on the record and the JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 64 of 124 289 1 MS. SNIDER: 2 THE COURT: 3 MS. ESCOBAR: 4 THE COURT: 5 stand. 6 do need to be sworn. Your Honor, the defense rests. Rebuttal? Senior Deputy Nicholson. All right. If you would retake the You need not be resworn. 7 That's right. Sorry. You JOSHUA NICHOLSON, 8 called as a rebuttal witness on behalf of the Government, 9 having been first duly sworn, testified as follows: 10 THE COURT: Take the witness stand. 11 are, and spell your last name, if you would. 12 used to looking at you down there. 13 14 THE WITNESS: Tell us who you I guess I got My name is Joshua Nicholson. The last name is spelled N-i-c-h-o-l-s-o-n. 15 DIRECT EXAMINATION 16 BY MS. ESCOBAR: 17 Q. Would you state your occupation for the record? 18 A. I am a senior deputy with the Kern County Sheriff's 19 Office. 20 Q. 21 Office? 22 A. 23 over 13 years. 24 Q. Are you currently assigned to the FBI? 25 A. I am. How long have you been with the Kern County Sheriff's I have been deputized with the sheriff's department for My current assignment is a, what they call a Task JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 65 of 124 290 1 Force Officer, or liaison officer, if you will, with the 2 Federal Bureau of Investigations Joint Terrorist Task Force, 3 and I'm sworn by the United States Marshal's Service. 4 Q. How long have you been with the FBI? 5 A. This current assignment, it will be a year in a week or 6 two. 7 Q. 8 FBI? 9 A. I was. 10 Q. And then did you come in contact with the defendant on 11 March 17, 2015? 12 A. I did. 13 Q. After advice and waiver of his Miranda rights, did the 14 defendant make a recorded statement in which he indicated what 15 he had done with the laser? 16 A. Yes. 17 Q. Did he make a statement about mutilating it? 18 A. He did. 19 Q. What, specifically, did he say? 20 A. He had said that he took the laser with him to Arkansas 21 and he began playing with it again and realized that was kind 22 of a bad idea, and he mutilated the laser in Arkansas. 23 Q. And the term "mutilated" was the term he used? 24 A. That is the term he used. 25 Q. And did he say that he did that after he realized what he So you were on duty in September of 2014, assigned to the JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 66 of 124 291 1 had done? 2 A. 3 play with it again. 4 Q. 5 operated? 6 A. 7 finger go. 8 go of a button. 9 Q. He had said something about realizing it was a bad idea to And then did he make a statement about how the laser was Was it through the use of a button? He had indicated when he shut it off that he just let his I made the assumption that that is because he let And then were there radio towers in the vicinity of 10 Sillect, the Sillect property? 11 A. 12 property when I went to that location. 13 Q. 14 the area? 15 A. I did, twice. 16 Q. And showing you 2-a, which already has been admitted into 17 evidence, the aerial of the Sillect Avenue property. 18 just indicate where there were radio towers that you could see 19 in that area? 20 A. Can you just touch the screen? 21 Q. Yes. 22 A. There was one directly to the north of the property. 23 I will try to make it a little bigger for you. 24 to the northwest, which is right about -- oh, I'm sorry. 25 little bit above that. There was three towers that I could see visible from that Let me show you 2-a. You went to that location to assess It's right there. Can you And There was one A JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 67 of 124 292 1 And then there is one series of towers way over here 2 across the freeway. 3 Q. 4 the third, "3." 5 So we will call the first arrow, "1," the second, "2," and How far was the first radio tower from the Sillect 6 Avenue property? 7 A. It is about a hundred yards or so. 8 Q. How tall was the tower? 9 A. It is -- the base of it is a hundred feet tall, and it has 10 a lightning rod on the top of it, about 15 feet. 11 Q. How far was the second tower from there? 12 A. Point three, point four miles away to the northwest. 13 Q. Was that radio tower associated with any business? 14 A. It was in the industrial -- it is like an industrial oil 15 field type area. 16 Q. Was that radio tower visible from the Sillect property? 17 A. It was. 18 Q. And how tall was that radio tower? 19 A. It was under a hundred feet. 20 Q. Under a hundred feet? 21 A. Yes, ma'am. 22 Q. How far was it from the Sillect property? 23 A. About point three, point four miles away. 24 Q. Then the third arrow pertains to another radio tower 25 associated with any type of business? JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 68 of 124 293 1 A. I wouldn't -- there is actually three towers, kind of real 2 close together, in that area. 3 taller of the three is not a radio tower. 4 do with the oil industry that's right there. 5 of -- it is like a oil processing plant. 6 Q. Okay. 7 A. And all three are under 150. 8 Q. Okay. 9 was visible from the Sillect property? I am not sure. I think the It has something to There is a bunch And that was visible from -- that third radio tower 10 A. Yes, partially visible. 11 Q. Partially visible. 12 Avenue? 13 A. They are about 1.2 miles west of the Sillect property. 14 Q. How tall were the radio towers? 15 A. All three towers are 150 or less. 16 Q. And the helicopter was flying at 500 feet? 17 A. According to the pilot, yes. 18 Q. Finally, did the defendant make any statement to you 19 about -- or did he indicate any direction he was pointing the 20 laser at in the sky? 21 A. 22 that he was pointing towards the tower and that he had 23 turned -- the tower was about half a mile away, half mile to a 24 mile, and he had turned when he heard the helicopter. 25 Q. And how far was it from the Sillect He did not give an exact direction. Now -- He just described JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 69 of 124 294 1 A. Turned around. 2 Q. So if he had been pointing at the first radio tower and he 3 turned, was the first radio tower a half mile away? 4 A. 5 north of Sillect. 6 Q. 7 third arrow, would he have had to turn? 8 A. 9 have to do a slight turn; number 3, he would not have turned 10 No. It was pretty close. If the helicopter was perpendicular, number 2, he would at all. It would have been in view of the helicopter. MS. SNIDER: Objection, your Honor. Officer Nicholson wasn't there. 13 THE COURT: 14 MS. SNIDER: 15 THE COURT: 16 MS. SNIDER: 17 It is in the next property If he had been pointing at tower 2 or the towers at 3, the 11 12 I'm sorry. What is the legal ground? Speculation. Objection is sustained. We move to strike the answer, your Honor. 18 THE COURT: Done. 19 BY MS. ESCOBAR: 20 Q. 21 location, would you have to -- from the Sillect property, how 22 would you have to view them from the property? 23 view them, where would you have to be standing? 24 A. 25 property. In order to view the radio towers at the second and third In order to You would be standing on the southwest portion of the JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 70 of 124 295 1 Q. Okay. If you are standing on the southwest portion of the 2 property, which is where that rear entrance was, how would you 3 need to be standing to view the radio tower, the towers in the 4 distance? 5 MS. SNIDER: 6 MS. ESCOBAR: 7 THE COURT: 8 MS. ESCOBAR: 9 Objection. Speculation. The defendant said it was a -Withdrawn? Yes. BY MS. ESCOBAR: 10 Q. Did the defendant tell you that the radio tower he had 11 been viewing was a mile and a half away? 12 A. No. 13 Q. Half a mile? 14 A. Half a mile. 15 Q. A half a mile. 16 mile away were in this -- at the second or the third location? 17 A. 18 mile. 19 Q. So it would only have been at the second one? 20 A. Based upon the half mile statement, the second one would 21 be the accurate tower. 22 Q. 23 to face in the westerly direction? 24 A. 25 were looking at the property and you were looking at the first And the only towers that were a half a It would have been the first or second or within a half I mean the first is not a half mile. Okay. And in order to view the second one, would you need It would be a more northwesterly direction. So if you JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 71 of 124 296 1 tower directly in front of you, it would have been at the, I 2 would say, between the 10:00 and 11:00 o'clock, so it would be 3 diagonal to the left. 4 Q. And the helicopter was already south of that second tower? 5 MS. SNIDER: 6 THE COURT: 7 BY MS. ESCOBAR: 8 Q. 9 Flight Officer. 10 Speculation. Sustained, as phrased. You heard the testimony of the pilot and the Tactical Do you know where the helicopter was at the time that we heard? 11 MS. SNIDER: 12 BY MS. ESCOBAR: 13 Q. Objection. Lack of personal knowledge. Were you present during the testimony -- 14 15 Objection, your Honor. THE COURT: One second. Are you withdrawing your question? 16 MS. ESCOBAR: As phrased, your Honor. 17 BY MS. ESCOBAR: 18 Q. 19 at the time of the first strike? 20 A. I did. 21 Q. And did that testimony indicate that the helicopter was 22 south of the second tower? 23 A. Yes. 24 Q. The second -- I guess we will call it tower -- radio 25 tower, which was less than a hundred feet? Did you hear the testimony about where the helicopter was JOSHUA NICHOLSON - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 72 of 124 297 1 A. Yes. 2 Q. 400 feet below the flying distance of the helicopter, 3 correct? 4 A. Correct. 5 Q. And the helicopter was not, according to the testimony, 6 south of that tower, correct? 7 A. I'm sorry? 8 Q. According to the testimony, the helicopter, when first 9 struck, was south of the second tower? 10 A. According to the testimony, yes. 11 Q. Okay. 12 he have had to turn to strike the helicopter? 13 A. Yes. 14 Q. Would he have had to raise his arm to strike the 15 helicopter? 16 If the defendant was facing the second tower, would MS. SNIDER: 17 personal knowledge. 18 THE COURT: 19 MS. ESCOBAR: 20 THE COURT: 21 MS. SNIDER: 22 THE COURT: 23 Objection, speculation. Lack of Speculation is sustained. No further questions, your Honor. Anything further of this witness? Yes, your Honor. Just one moment. Okay. CROSS-EXAMINATION 24 BY MS. BATEMAN: 25 Q. Good morning, Senior Deputy Nicholson. I have the hardest JOSHUA NICHOLSON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 73 of 124 298 1 time with your title. 2 A. I know. 3 Q. Many hats. 4 with Mr. Bowser in your capacity as an FBI Task Force Officer, 5 correct? 6 A. Yes, ma'am. 7 Q. And that was in March of 2015? 8 A. Yes, ma'am. 9 Q. About six months after the incident, correct? 10 A. Approximately. 11 Q. Okay. 12 Mr. Bowser, were you? 13 A. I was not. 14 Q. You were with your partner? 15 A. I was. 16 case. 17 Q. He was a Special Agent with the FBI? 18 A. Yes, ma'am. 19 Q. And when the two of you spoke with Mr. Bowser, you were 20 traveling -- you were transporting him from San Luis Obispo to 21 Bakersfield, correct? 22 A. Correct. 23 Q. About how long is that trip? 24 A. Oh, I would say it is over an hour and a half. 25 couple hours, I think. I have quite a few. All right. So you testified that you spoke And you weren't alone when you spoke with He was the chief investigator at the time in the Probably a JOSHUA NICHOLSON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 74 of 124 299 1 Q. 2 obviously, you testified that Mr. Bowser discussed what 3 happened, correct? 4 A. He did. 5 Q. Okay. 6 A. It was. 7 Q. All right. 8 accident, did he not? 9 MS. ESCOBAR: 10 Bit of a road trip. And while you are in the car, And that discussion was recorded, was it not? And Mr. Bowser explained that this was an Objection, your Honor. Outside the scope. 11 THE COURT: 12 THE WITNESS: Oh, just a second. Overruled. I don't believe he used the term 13 "accident," but he described what happened during that time. 14 BY MS. BATEMAN: 15 Q. 16 playing with the laser? 17 A. I do remember that. 18 Q. And that, you know, they were just bored, out there on 19 that lot? 20 A. He did say that. 21 Q. Okay. 22 helicopter, correct? 23 A. 24 said that. 25 Q. Okay. He said that he told you that he and his dog were And he said that he heard the sound of the I think he used the term, "I mentally heard," I think he He mentally heard it, okay. And then he said, "Without JOSHUA NICHOLSON - X Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 75 of 124 300 1 really thinking what I was doing with my hand here, I turned 2 around"? 3 A. 4 and then he turned around to the helicopter. 5 Q. 6 helicopter with the laser beam? 7 A. He did not. 8 Q. He did not say that? 9 A. He did not say that. 10 Q. Would it refresh your recollection if you were to review 11 the transcript of the conversation? 12 A. 13 helicopter down. He did say he was focused on a tower, mentally heard it, Okay. No. And he told you that he didn't go chasing the He said -- he never said he was chasing the He never said that. 14 MS. BATEMAN: 15 like to admit as an exhibit -- 16 17 THE COURT: Your Honor, at this point, we would Why don't you ask the question again. Maybe I missed it, but -- 18 MS. BATEMAN: I will try again, thank you. 19 BY MS. BATEMAN: 20 Q. 21 the helicopter with that laser beam"? 22 A. I do remember that statement. 23 Q. Oh, okay. 24 A. I think I misunderstood your question, actually. 25 Q. My apologies. Didn't Mr. Bowser make the statement, "I didn't go chasing Forgive me. I was misunderstanding you. LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 76 of 124 301 1 THE COURT: 2 both. 3 BY MS. BATEMAN: 4 Q. 5 a couple of minutes? 6 A. 7 8 What is frightening is that I understood He told you he was playing with the laser pointer for just I believe he did say that. MS. BATEMAN: Okay. That's all I have for now. Thank you. 9 THE COURT: Any redirect? 10 MS. ESCOBAR: 11 THE COURT: 12 Next rebuttal witness, please. 13 MS. ESCOBAR: 14 THE COURT: 15 MS. ESCOBAR: 16 MS. PETTIGREW: 17 THE COURT: 18 No, your Honor. Thank you, sir. You may step down. Your Honor, we will recall Dr. McLin. What is your time estimate, please. Brief. Three to five minutes or less. Sir, retake the stand. You are still under oath. 19 LEON McLIN, 20 called as a rebuttal witness on behalf of the Government, 21 having been previously sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MS. PETTIGREW: 24 Q. Good morning, Dr. McLin. 25 A. Good morning. LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 77 of 124 302 1 Q. You heard the testimony of the FBI regarding the height of 2 the tower that the defendant would have needed to be pointing 3 a laser at in order to turn to hit the helicopter; is that 4 correct? 5 A. That's correct. 6 Q. And did you also hear the FBI state that the tower that 7 would have matched the defendant's description to them was 8 approximately a half a mile away? 9 A. Yeah. 10 Q. And did you hear that the tower was also about a hundred 11 feet tall? 12 A. I heard that. 13 Q. Yesterday, were you in the courtroom when Deputy Austin, 14 the pilot of the helicopter, was testifying? 15 A. Yes, I was. 16 Q. And did you hear him testify where the helicopter was when 17 it got hit with the first strike? 18 A. I did hear that. 19 Q. Did you hear him say that he was approximately at an 20 altitude of 500 feet? 21 A. That's what I recall, 500 feet. 22 Q. Assuming that the defendant was pointing at the angle at 23 the hundred foot tower that was approximately half a mile 24 away, would the angle be significantly different if he then 25 struck the helicopter that was 500 feet in the air? That tower 3 was half a mile away, yes. Correct. LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 78 of 124 303 1 MS. BATEMAN: Objection, your Honor. This is beyond 2 the scope of this expert's expertise. 3 a physicist; he is an optometrist and a vision scientist. 4 MS. PETTIGREW: He testified he is not I will ask a different question. 5 BY MS. PETTIGREW: 6 Q. Are you familiar with the Pythagorean theorem? 7 A. Yes. 8 Q. Are you familiar with it used to calculate angles? 9 A. Yes. 10 Q. Given the information that you have been given through the 11 testimony of the pilot and the FBI agent, would you be able to 12 calculate the angle that the laser would have been at to 13 strike the tower? 14 MS. BATEMAN: Objection, your Honor, on the same 15 grounds. 16 the Pythagorean theorem qualifies him on the subject of 17 Geometry or Physics. 18 THE COURT: 19 Approach for one second. (The following proceedings were had at the sidebar, to 20 wit:) 21 22 I don't believe that the witness' familiarity with THE COURT: Counsel are present. The defendant is not. 23 Waived? 24 MS. BATEMAN: 25 THE COURT: Waived. Where are we going with this? Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 79 of 124 304 1 MS. PETTIGREW: Simple math to show there is a 2 significant difference between aiming at something at a 3 hundred feet and 500 feet, because the defendant testified he 4 just had it up in the air and the helicopter flew into it. 5 THE COURT: 6 MS. PETTIGREW: 7 allowed to do math. 8 9 Do you need expert testimony for that? He knows how to do math. I'm not I can't testify. MS. BATEMAN: He doesn't begin to meet the qualification for the expertise in this. 10 THE COURT: I don't think there is any question he 11 has the expertise to give the calculation, just like you do. 12 We all took basic geometry. 13 MS. PETTIGREW: I wasn't planning on asking for a 14 specific calculation. I was asking for would there be a 15 significant difference in the angle which I think he should be 16 able to opine. 17 MS. BATEMAN: She is asking for an expert opinion. 18 MS. ESCOBAR: It is the angular difference. 19 THE COURT: 20 21 What are you asking him to do? What do you want? MS. PETTIGREW: To state that the angle would be 22 different if it is pointing at a 100-foot tower than it would 23 be at a 500-feet helicopter. 24 MS. ESCOBAR: 25 THE COURT: And what that difference is. You don't need an expert for that. Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 80 of 124 305 1 2 3 MS. ESCOBAR: Not everyone remembers high school geometry. THE COURT: But I think that if we are sitting here 4 and we are looking at a hundred foot tower, that's much 5 different from looking at something that's 500 feet, five 6 times higher. 7 need that. That's basic common sense. 8 MS. ESCOBAR: 9 THE COURT: 10 MS. BATEMAN: 11 THE COURT: 12 But not the specific. She said she is not asking for that. That's fine, your Honor. I think so. (The proceedings at the sidebar were concluded.) 13 MS. PETTIGREW: 14 THE COURT: 15 MS. BATEMAN: 16 THE COURT: 17 Any further witnesses? 18 MS. ESCOBAR: 19 THE COURT: 20 MS. SNIDER: 21 THE COURT: 22 MS. BATEMAN: Rest, your Honor. 23 MS. ESCOBAR: Rest. 24 THE COURT: 25 I don't think you I have no further questions. Anything else? Nothing further. Thank you. Thank you. You may step down. No, your Honor. Surrebuttal? Nothing further. Both sides rest? Ladies and gentlemen, we are going to take the midmorning recess. While you are doing that, we will Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 81 of 124 306 1 be doing a few things with jury instructions. 2 back, my intent is to read you the rest of the jury 3 instructions and then move into closing arguments of counsel. 4 And so now you have heard all the evidence. 5 getting close, but we are not quite there. 6 start talking about the case yet. 7 will come back for you. 8 9 10 When you get It is So please don't And 15 minutes, and then we Any questions, issues or problems? Okay, thanks. (The jury left the courtroom.) THE COURT: The jury has left. I think both sides 11 have been given the packets of the jury instructions that both 12 sides wants, asked for. 13 that don't apply, one of which has been withdrawn, to wit, the 14 flight instruction. 15 And they exclude, of course, things So take a look, see if there is anything that you are 16 thinking is out of the ordinary. 17 verdict form? 18 MS. BATEMAN: 19 THE COURT: 20 21 22 23 Also we gave you, I think, a Yes. Okay. We will be in recess, 15 minutes. (Recess) THE COURT: Back on the record. Where is Ms. Bateman? MS. SNIDER: Your Honor, Ms. Bateman just stepped out 24 to call Deputy Roach, who had been on our witness list, to 25 release him. She will be right back. JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 82 of 124 307 1 MS. ESCOBAR: 2 THE COURT: 3 Counsel are present. 4 Any issues on the jury instructions or the verdict 5 He is coming from San Luis Obispo. Got it. Defendant is present. form? 6 MS. ESCOBAR: No, your Honor. 7 MS. BATEMAN: No, your Honor. 8 THE COURT: 9 MS. ESCOBAR: Yes, your Honor. 10 MS. BATEMAN: Yes, your Honor. 11 THE COURT: 12 We are ready for the jury? Okay. (The following proceedings were had in the presence of the 13 jury, to wit:) 14 THE COURT: 15 Thank you. has joined us. 16 We are still on the record, and the jury Any issues, ladies and gentlemen? All right. What I'm going to do, as I promised 17 before the break, we are going to give you the rest of the 18 jury instructions now and then we will move into closing 19 arguments. 20 Now that you have heard all the evidence, it is my 21 duty to instruct you on the rest of the law that applies to 22 the case. 23 in the jury room for you to consult. 24 25 A copy of these instructions will be made available It is your duty to weigh and to evaluate all the evidence received in this case, and in that process, to decide JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 83 of 124 308 1 2 what the facts are. It is also your duty to apply the law as I give it to 3 you to the facts as you find those facts to be, whether you 4 agree with the law or not. 5 You must decide the case solely on the evidence and 6 the law and must not be influenced by personal likes, 7 dislikes, opinions, prejudices or sympathies. 8 that you took an oath promising to do that at the beginning of 9 this case. 10 You will recall You must follow all of these instructions, and not 11 single out some and ignore others. 12 these instructions or into anything I may have said or done 13 any suggestion as to what your verdict should be. 14 entirely up to you. 15 Please do not read into That is The indictment itself, as I read it to you at the 16 beginning, is not evidence. 17 guilty to the charges, and the defendant is presumed to be 18 innocent unless and until the government proves the defendant 19 guilty beyond a reasonable doubt. 20 The defendant has pleaded not In addition, the defendant does not have to testify 21 or present evidence to prove innocence. 22 the burden of proving every element of the charges beyond a 23 reasonable doubt. 24 25 The government has Proof beyond a reasonable doubt is proof that leaves you firmly convinced that the defendant is guilty. It is not JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 84 of 124 309 1 required that the government prove guilt beyond all possible 2 doubt. 3 A reasonable doubt is a doubt based upon reason and 4 common sense and is not based purely on speculation. It may 5 arise from a careful and impartial consideration of all the 6 evidence or from a lack of evidence. 7 If, after a careful and impartial consideration of 8 all the evidence, you are not convinced beyond a reasonable 9 doubt that a particular defendant -- that the defendant is 10 guilty, it is your duty to find the defendant not guilty. 11 On the other hand, if, after a careful and impartial 12 consideration of all the evidence, you are convinced beyond a 13 reasonable doubt that the defendant is guilty, it is your duty 14 to find the defendant guilty. 15 Defendant Barry Lee Bowser testified in this case. 16 You should treat this testimony as you would the testimony of 17 any other witness. 18 You are only to determine whether the defendant is 19 guilty or not guilty of the charge in the indictment. 20 defendant is not on trial for any conduct or offenses not 21 charged in the indictment. 22 The You have heard testimony that the defendant made a 23 statement. It is for you to decide whether the defendant made 24 the statement and, if so, how much weight to give to it. 25 making those decisions, you should consider all the evidence In JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 85 of 124 310 1 about the statement, including the circumstances under which 2 the defendant may have made it. 3 You have heard evidence that the defendant has 4 previously been convicted of crimes. 5 evidence only as it may affect the defendant's believability 6 as a witness. 7 You may consider that You may not consider a prior conviction as evidence 8 of guilt of the crime for which the defendant is now on trial. 9 You have heard testimony from persons who, because of 10 education or experience, were permitted to state opinions and 11 the reasons for those opinions. 12 Such opinion testimony should be judged just like any 13 other testimony. You may accept it or reject it and give it 14 as much weight as you think it deserves, considering the 15 witness' education and experience, the reasons given for the 16 opinion and all other evidence in the case. 17 The defendant is charged in the indictment with 18 aiming the beam of a laser pointer at an aircraft or its 19 flight path. 20 In order to find a defendant guilty of this crime, 21 the government must prove the following elements beyond a 22 reasonable doubt: 23 First, that the defendant knowingly aimed the beam of 24 a laser pointer at an aircraft or the flight path of an 25 aircraft; JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 86 of 124 311 1 And, secondly, that the aircraft in question, Air-1, 2 was an aircraft in the Special Aircraft Jurisdiction of the 3 United States or was a civil aircraft of the United States or 4 another aircraft in the United States. 5 To aim is to point or direct an object at a target. 6 The term "aircraft" means any contrivance invented, 7 used or designed to navigate or fly in the air. 8 9 10 The term "Special Aircraft Jurisdiction of the United States" includes any civil aircraft of the United States or another aircraft in the United States. 11 An act is done knowingly if a defendant is aware of 12 the fact and does not act through ignorance, mistake or 13 accident. 14 The government is not required to prove that a 15 defendant knew that his acts or omissions were unlawful. 16 may consider evidence of a defendant's words, acts or 17 omissions, along with all other evidence, in deciding whether 18 the defendant acted knowingly. 19 When you begin your deliberations as a jury, elect 20 one member of the jury as your foreperson who will preside 21 over the deliberations and speak for you here in court. 22 You You will then discuss the case with fellow jurors to 23 reach agreement if you can, and your verdict, whether guilty 24 or not, must be unanimous. 25 Each of you must decide the case for yourself, but JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 87 of 124 312 1 should do so only after you have considered all the evidence, 2 discussed it fully with other jurors and listened to the views 3 of your fellow jurors. 4 Do not be afraid to change your opinion if the 5 discussion persuades you that you should, but do not come to a 6 decision simply because other jurors think it is right. 7 It is important that you attempt to reach a unanimous 8 verdict, but of course, only if each of you can do so after 9 having made your own conscientious decision. Do not change an 10 honest belief about the weight and effect of the evidence 11 simply to reach a verdict. 12 Because you must base your verdict only on the 13 evidence received in the case and on these instructions, I 14 remind you not to be exposed to any other information about 15 the case or the issues involved. 16 You may only discuss the case with your fellow jurors 17 during your deliberations. 18 any way and do not let anyone else communicate with you in any 19 way about the merits of the case or anything to do with it. 20 Do not communicate with anyone in This includes, of course, discussing the case in 21 person, writing, phone, electronic means, e-mail, mail, text 22 messaging or any other Internet chat room, blog or website or 23 anything other feature. 24 25 It applies to communicating with your family members or employer, media, press, friends, people involved in the JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 88 of 124 313 1 2 trial. If you are asked or approached in any way about your 3 jury duty, please let me know immediately. 4 have already indicated, media, you cannot watch, listen, or 5 read media issues about this case. 6 And of course, I The law requires these restrictions to ensure that 7 all parties have a fair trial based on the same evidence that 8 each party had an opportunity to address. 9 If you violate the restrictions, it jeopardizes the 10 fairness of the proceedings and we might have to try the case 11 again, so please, please take this very seriously. 12 Some of you have taken notes during the trial and 13 maybe some of you have not. 14 should rely on your own memory of what was said. 15 only to assist your memory. 16 influenced by your notes or those of your fellow jurors. 17 Whether you did or didn't, you Notes are You should not be overly The punishment provided by law for this crime is for 18 the Court to decide. You may not consider punishment in 19 deciding whether the government has proved its case against 20 the defendant beyond a reasonable doubt. 21 A verdict form has been prepared for you. After you 22 reach a unanimous agreement on the verdict, your foreperson 23 must fill out the form that has been given to you, sign it and 24 date it, and advise the Court that you are ready to return to 25 the courtroom. GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 89 of 124 314 1 If it becomes necessary during your deliberations to 2 communicate with me, you may send a note through your -- 3 through the Court staff, signed by the foreperson or any 4 member of the jury. 5 No member of the jury should attempt to communicate 6 with me except in a signed writing, and I will respond to the 7 jury only in writing or in open court. 8 9 If you send out a question, I'm required to consult with the lawyers before answering it, which may take some 10 time. 11 the answer to any question you may give. 12 You may continue your deliberations while waiting for Remember that you are not to tell anyone, including 13 me, how you stand numerically or otherwise on any question of 14 guilt of the defendant until after you have reached a 15 unanimous verdict or you have been discharged by this Court. 16 We are ready for the closing arguments of counsel. 17 Ms. Escobar? 18 MS. ESCOBAR: 19 20 sometimes a hindrance. Okay. One moment, your Honor. Technology is That was a quick break. Ladies and gentlemen, the law and the crime 21 are rather simple. The crime is simply the crime of aiming a 22 laser pointer at an aircraft. 23 The elements are, as the Court instructed, that the 24 defendant, Barry Bowser, knowingly aimed the beam of a laser 25 pointer at an aircraft or its flight path, and the aircraft in GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 90 of 124 315 1 question, which is Air-1, the Kern County Sheriff's 2 helicopter, was in the Special Aircraft Jurisdiction of the 3 United States. 4 As the Court has instructed, an aircraft -- use your 5 common sense -- the Air-1, was an aircraft, but the legal 6 definition is here for you to view. 7 Aircraft in this case means a public contrivance. 8 The Kern County Sheriff's helicopter is something the 9 taxpayers paid for. It is a public contrivance invented, 10 used, or designed to navigate, fly, or travel in the air. 11 question. 12 Special Aircraft Jurisdiction of the United States 13 encompasses any aircraft. 14 there. 15 No Fairly broad. There is no dispute Aim means to point at or direct at. The evidence 16 indicates there was a pointing or directing of a laser beam 17 two times, at least. 18 Aiming does not mean to strike or to hit. It does 19 not matter whether or not the defendant intended to strike or 20 hit the aircraft. 21 the aircraft or its flight path, you are guilty of the crime. 22 As long as he aimed the laser pointer at So the evidence here -- and this is a short trial, 23 and it is simple. 24 struck Air-1 two, possibly three, times. 25 What we have here, it is clear the laser You heard Austin, the pilot, say he wasn't sure if GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 91 of 124 316 1 the third strike was a continuation of the second or there was 2 yet a third. 3 the aircraft and they were direct hits. 4 5 But there were at least two distinct strikes of And there was five seconds between those hits, and those hits were at different parts of the helicopter. 6 The helicopter was traveling 100 to 115 miles per 7 hour. 8 that might have been in the area. 9 It was at 500 feet, much farther above any radio tower It was only an eighth of a mile away. Ladies and 10 gentlemen, that is two football fields, not very far. 11 flying object, with lights on the helicopter, reflective 12 material on the helicopter. 13 Only two football fields away. 14 So big Looking like a police helicopter. They were direct hits. Struck two times. Dr. McLin, a Senior Research 15 Optometrist for the Air Force Research Laboratory, who has 16 extensive background and training on lasers and the effects of 17 lasers and the way lasers operate, told you that those hits 18 and the evidence and testimony of the two strikes of the 19 helicopter, were direct hits, not consistent with some random 20 movement or moving of an arm or turning around or flickering. 21 They were direct hits to the eye of Pilot Austin, 22 such a direct hit that it caused him to experience like a sand 23 in his eye, a gravelly feeling, pain in his left eye when the 24 laser entered the cabin through the open door, the left door. 25 Then five seconds later, as the aircraft was GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 92 of 124 317 1 moving -- and it doesn't turn on a dime, it had to bank 2 around -- that aircraft was hit again directly between the 3 11:00 o'clock and 12 o'clock position of the aircraft. 4 In order for the -- then as a result of that second 5 strike directly at the aircraft, the cockpit entirely lit up 6 green, a flash of green. 7 It would have been worse had the night vision goggles 8 not been on. 9 vision goggles on after the first strike. 10 I think Austin testified that he put the night When the light entered the cockpit that means, as 11 Dr. McLin testified, that beam entered the window there. 12 There was no scattering or flickering of light that caused the 13 burst inside the cabin. 14 It was a direct hit. That is consistent with an aiming at the aircraft, 15 not random activity. 16 an aiming. The direct hits indicate that there was 17 You heard also from the Flight Officer Storar that 18 the defendant -- and I believe also Austin -- the defendant 19 stood directly in front of the helicopter. 20 consistent with aiming conduct, pointing a laser at the 21 aircraft. 22 That too is And obviously, he admitted to pointing the laser at 23 the aircraft in the recorded statement that you heard. And it 24 was clear when Officer Celedon contacted the defendant, he 25 made no mention of striking any other objects. He indicated GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 93 of 124 318 1 he pointed the laser at the aircraft. 2 Now, it doesn't matter that he didn't intend to hit 3 it. I think he said that. 4 evidence establishes that he aimed the laser pointer at the 5 aircraft, and he aimed it twice, and he testified here today 6 that there were -- there was more than one strike. 7 that the beam hit the aircraft establishes there was an 8 aiming. 9 the case is not in dispute. 11 established. 12 14 The The fact And the defense acknowledged in opening that much of 10 13 The crime is completed. Most of the elements have been Aircraft, easy, check. Special Aircraft Jurisdiction, there is no dispute, check. Was there an aiming? The evidence clearly 15 establishes it, and your common sense tells you there was an 16 aiming because there were direct hits of the aircraft, and 17 there was more than one strike. 18 laser pointer at Air-1. 19 don't think it's disputed by the defense. 20 The defendant had to aim the This element is satisfied. And I Check. So we have got most of the elements established. The 21 only thing that needs to be shown in order for you to return a 22 guilty verdict, is did the defendant know that he aimed, that 23 he aimed the laser pointer at an aircraft. 24 25 The evidence establishes that the defendant knew what he was doing when he aimed the laser pointer at the aircraft GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 94 of 124 319 1 and hit it two times. 2 The law indicates, as Judge O'Neill instructed you, 3 an act is done knowingly if the defendant is aware of the act 4 and does not act through ignorance, mistake or accident. 5 Here the evidence that has been presented establishes 6 beyond a reasonable doubt that the defendant knowingly 7 pointed, directed, aimed the laser pointer at the aircraft, 8 regardless of whether he thought he struck it. 9 Obviously, he made that admission up front at the 10 time Officer Celedon arrived within minutes to investigate the 11 laser strikes that were reported immediately by the airmen. 12 His only, I guess, clarification at the time that he 13 made the statement that was recorded after he was advised of 14 his Miranda rights, without any coercion, force, or anyone 15 putting words into his mouth, was he just was not sure that he 16 hit it. 17 Again, striking or actually hitting the aircraft is 18 not what is required. 19 contrary, that there were the strikes and the hits. 20 irrelevant whether the defendant knew that he hit it. 21 The evidence establishes, on the In fact, he did. It is And he would have seen the aircraft 22 being struck when the cockpit illuminated. That was the 23 testimony of Dr. McLin. 24 the ground two football field lengths away would have seen the 25 aircraft light up. A person looking at the aircraft on GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 95 of 124 320 1 We talked about the direct strikes. The direct 2 strikes at the 9:00 o'clock and between the 11:00 and 12:00 3 o'clock position of the aircraft, five seconds apart, are 4 indicative of the tracking movement that Dr. McLin testified 5 about. Tracking in order to strike. 6 This -- there would have been tracking here when the 7 aircraft maneuvered around to determine the source of the 8 laser. 9 order to strike it directly in front of the nose of the 10 The defendant would have had to track the aircraft in aircraft. 11 If he just stood in one position and the aircraft 12 makes that turn to go investigate, he would have had to track 13 the aircraft to move it to hit it directly in the nose of the 14 aircraft. 15 and that tracking movement is reflective or indicative of 16 knowledge. 17 That's the tracking movement we are talking about, That establishes knowledge. Again, he would have seen it, had he been looking, 18 and he says he was looking in the horizon. 19 a tower. 20 seen the circling bird. 21 he would have seen it again on the second strike. 22 evidence of knowledge. 23 Not so near. Perhaps aiming at Had he seen a tower, he would have He would have seen it light up. And That is Again, there is a significant angular difference, if 24 anyone remembers high school math and the Pythagorean theorem. 25 You can calculate for yourself the difference between, if he GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 96 of 124 321 1 had been looking at that second tower in the distance, which 2 would have been consistent, perhaps, with a moving around, I'm 3 not really sure; however, there is a significant angular 4 difference, and that's what Dr. McLin testified to. 5 you could do the math between where that tower, the second 6 tower was in the distance a half mile away at a hundred feet, 7 and where the helicopter was at 500 feet. 8 9 Again, So if he was pointing at this tower, the second tower, half a mile away -- the defendant at one point, much 10 later in time, indicated to Officer Nicholson that the tower 11 he was pointing at was a half mile away. 12 feet. 13 (Indicating) to go and strike the helicopter. 14 huge angular difference. 15 That was a hundred He would have had to make this kind of movement There was a And again, if you believe he was looking at the radio 16 tower, again, there was no mention of a radio tower at the 17 time of Celedon's arrival, at the time of the incident. 18 mention of a radio tower. 19 No If you believe he was looking at a radio tower, much 20 smaller, less distinct at night than a circling helicopter, he 21 would have had to make a huge adjustment to strike that 22 helicopter. 23 But that's not really what happened because we know 24 that the helicopter was south of that tower anyway, according 25 to Pilot Austin. GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 97 of 124 322 1 Again, evidence of knowledge is reflected by his very 2 stance, the fact he was directly facing the helicopter when 3 the helicopter was struck two times. 4 testimony from the airmen, that the defendant -- and they 5 could see well. And that is the 6 I mean there was a spotlight that shed a lot of 7 light, and he was talking about candlepower, but you are 8 probably familiar with the police helicopter's spotlight. 9 is a very, very bright light, like a stage light. Probably 10 much brighter in terms of candlepower, but they had a good 11 view of the defendant and they could see that he faced the 12 helicopter. 13 It His placement, his holding of an object in a steady 14 manner, facing the helicopter, the two strikes are 15 circumstantial evidence, and very strong circumstantial 16 evidence, that the defendant knew that he was aiming the laser 17 pointer at the helicopter. 18 You have heard an instruction from the Court 19 indicating there is to be no difference; you are to weigh 20 circumstantial evidence and direct evidence equally. 21 We are never going to have direct evidence of what's 22 going on in the defendant's mind. 23 knowledge based on circumstantial evidence. 24 circumstantial evidence here is super strong. 25 You have to establish But the Based on your common sense and the evidence, the GOVERNMENT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 98 of 124 323 1 defendant knew exactly what he was doing when those laser 2 strikes occurred. 3 You will recall again Pilot Austin testified that the 4 laser or the source of the laser beam was directly in front of 5 the defendant when the defendant was facing directly toward 6 the helicopter. 7 The defendant -- there has been some testimony here 8 today about where the laser pointer is. There is no laser 9 pointer for you because that evidence has been concealed in 10 some manner, in some way, by the defendant. 11 how, we don't know when. 12 We don't know We do know at the time of the arrival of Officer 13 Celedon, and based on the observations of the airmen, that 14 there was an SUV that arrived during the laser incident while 15 the spotlight was shining on the Moreland property. 16 That an SUV came at the very time right after this 17 laser incident to deliver enchiladas? 18 there was some food. 19 I don't know. Maybe But the defendant said that's when he turned over the 20 evidence, the laser, which would be incriminating, in an 21 effort to conceal the laser. 22 That's what he told Officer Celedon in the recorded 23 statement, that he gave the laser to Todd. 24 know his last name. 25 was. Todd, we don't The officer tried to determine who Todd We never got a name, we never got an address. The SUV DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 99 of 124 324 1 fled into the night, we don't know where. 2 determine where this Todd went. 3 The airmen tried to Six months later, fast-forward, when he is getting 4 arrested on federal charges by the FBI, he said that he lied 5 to Officer Celedon about the laser, and when the FBI tried to 6 find out where the laser was, he said he, in his words, 7 "mutilated" the laser. 8 His efforts to conceal the laser pointer reflects 9 consciousness of guilt, reflects his knowledge that he knew 10 what he was doing and he wanted to get rid of the evidence. 11 So ladies and gentlemen, we have the three undisputed 12 elements. 13 shows his knowledge. 14 The evidence that we have established in court Check. Again, reasonable doubt is not doubt beyond all 15 possible reason. It is based upon your reason and your common 16 sense. 17 that the defendant knowingly aimed the laser at Air-1. 18 not a chance occurrence, as the defense characterized it in 19 their opening statement. 20 defendant knew what he was doing. Common sense here, based on the evidence, indicates It was a deliberate act. 21 MS. BATEMAN: 22 Barry Bowser is not guilty. And the Good morning, everybody. He is not guilty of 23 knowingly aiming a laser pointer at a helicopter. 24 innocent. 25 It was He is Now, the government is correct, no one is arguing DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 100 of 124 325 1 that the helicopter in this case was hit with a green laser 2 pointer. 3 at an aircraft can create dangerous conditions for pilots. And no one is arguing that pointing a laser pointer 4 The only issue you have to decide is whether 5 Mr. Bowser knowingly, on purpose, pointed the laser pointer at 6 the helicopter. 7 know the answer is no. 8 9 And from the evidence that we have seen, you This case is about Mr. Bowser, a man playing with his dog with a cheap toy, and as he was pointing it up after his 10 dog got bored, he heard a noise. 11 noise, and as he was shining the laser pointer, he ended up 12 directing it in the direction of the helicopter. 13 And he turned toward that And this was an accident. Mr. Bowser explained to 14 law enforcement that he was not aiming it intentionally, and 15 the facts bear this out. 16 in a little bit. 17 We are going to get into the facts The government is the one with the burden. And they 18 have failed to meet this burden. The evidence in this case 19 has proved that this was an accident and that he is innocent, 20 but you don't need to go that far to find him not guilty. 21 The evidence doesn't need to prove his innocence. 22 doesn't need to convince you of exactly what happened that 23 night, and that's because of the principles of our justice 24 system. 25 to protect all of our liberty should one of us find ourselves At the heart of it is the jury. It The jury system is DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 101 of 124 326 1 wrongly accused of a crime. 2 You have a great responsibility here, true, but it is 3 not a difficult one. 4 happened. 5 innocent in order to find him not guilty. 6 decide whether the prosecution has convinced you beyond a 7 reasonable doubt, left you firmly convinced, that Mr. Bowser 8 did what he is charged with. 9 You don't have to decide for sure what You don't even have to decide that Mr. Bowser is You only have to And if you have any uncertainty, if you are not 10 exactly sure what happened, then your job is easy and you must 11 find Mr. Bowser not guilty. 12 Now, this is the instruction that Judge O'Neill read 13 to you. 14 that this law has an intent element, and the fact that it has 15 an intent element is intentional. 16 Those are the elements of the charge, and the fact is Lawmakers could have left that out. It could have 17 been written to say that it is against the law to aim or point 18 at an aircraft. 19 helicopter with a laser, that that violated the law, and it 20 would subject them to prosecution. 21 That would mean that if a person hit a And in that scenario, a truthful explanation of an 22 accident wouldn't do that person any good. 23 matter. 24 they would be subject to prosecution. 25 But that's not the law here. It wouldn't They would have acted in violation of the law and The law here is that it DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 102 of 124 327 1 is illegal to knowingly aim at a helicopter. 2 set about to hit a helicopter with a laser pointer, to see a 3 helicopter and purposely aim the laser pointer at it. 4 that's what the government has to prove. 5 It is illegal to So Now, we talked a little bit about in the beginning 6 about the presumption of innocence, and that's for each of us, 7 right? 8 works when all of you believes in that principle. That protects all of us. And that protection only 9 The second important principle is the burden of 10 proof, and I have already said, the burden lies with the 11 government. 12 And why is that? Well, for one reason, is that an 13 innocent person may not have much evidence to offer by way of 14 their innocence. 15 much information to offer, much evidence to offer about what 16 was in his head that night. 17 And in Mr. Bowser's case, he may not have Before the government can take away a person's 18 liberty, it must bear the entire burden. 19 any of you have questions about what happened that night, you 20 can't look to Mr. Bowser for answers. 21 that means the government was supposed to answer those 22 questions, and its failure to do so can be the basis for your 23 not guilty verdict. 24 25 And that means if If you have questions, Our Constitution allows Mr. Bowser to sit back and make the government prove its case against him. He is not DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 103 of 124 328 1 required to present anything to you. 2 But it was important for him to tell you his story, 3 even though he was very nervous, even though he knew 4 cross-examination would be difficult, even though he knew it 5 was a big risk, you know, that you might disbelieve him. 6 But this is his life on the line, and what he said 7 has been supported by what he said to Officer Celedon and what 8 he said to FBI and Senior Deputy Nicholson. 9 And the final principle I want to talk to you about 10 and, then we will get into the facts a little bit, is beyond a 11 reasonable doubt, the standard of proof. 12 You are all well aware of that phrase, you have heard 13 it hundreds of times. 14 it everywhere. 15 does it really mean? 16 You have probably said it yourself. It is a very high standard. 17 way. 18 innocent." 19 that, you have -- 20 21 22 23 You have heard it on TV, you have heard But what Let's think of it this At the bottom, you have, "I'm convinced Mr. Bowser is And above that, you have uncertainty. MS. ESCOBAR: And above Your Honor, objection to the qualification. THE COURT: Are you trying to state that that's what the law is? 24 MS. ESCOBAR: 25 THE COURT: Yes. No, I'm not asking. DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 104 of 124 329 1 Ms. Bateman? 2 MS. BATEMAN: 3 I'm trying to give context to what beyond a reasonable doubt means. 4 THE COURT: 5 MS. BATEMAN: Objection is sustained. Well, let's put it this way. The 6 instruction that Judge O'Neill has read to you is that you 7 must be left firmly convinced. 8 fairly certain he did it." 9 and above that bright line is, "I am firmly convinced beyond a 10 So that's more than, "I'm There is a bright line above that, reasonable doubt." 11 So your whole verdict is going to come down to 12 whether you think Mr. Bowser acted on purpose. 13 flash. 14 nothing. We had one to two seconds. No further strikes. 15 Seconds. We had a And then No more light at all. He was out there playing with his dog Bowser for just 16 a few minutes. 17 turned. He pointed it up. He heard something. He Then he realized, and he immediately stopped. 18 So let's talk about the facts in evidence. 19 is clear that this wasn't just a fast experience for 20 Mr. Bowser. 21 months ago. 22 It was fast for everyone. Well, it And it was almost nine We heard that the first strike was just a flash. 23 Deputy Storar, the second witness, who was the Tactical Flight 24 Officer, he didn't even see the flash. 25 happened. He had no idea it When Deputy Austin began to turn suddenly, Deputy DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 105 of 124 330 1 Storar didn't even know why. 2 We also heard that that first strike, that flash, 3 went through an open door. 4 anything. 5 see it. So it didn't reflect off of There wasn't enough reflection for Deputy Storar to Certainly not enough for Mr. Bowser to have seen it. 6 Now, about the second strike, we don't know for sure 7 much about it. 8 first. 9 illuminated. We know it was a little bit longer than the Deputy Storar didn't tell you that he saw the cockpit 10 Deputy Austin told you that, but he didn't tell the 11 FAA that. 12 strikes to the FBI and that in this case, his report to the 13 FBI was an e-mail with the FAA Laser Beam Questionnaire 14 attached, and that questionnaire asks a yes or no question, 15 "Was the cockpit illuminated," and Deputy Austin answered, 16 "No." 17 He told you that he has a duty to report laser And in a followup e-mail to the FBI, who, along with 18 the prosecution, was looking for more information about the 19 case, Deputy Austin expounded upon his experience, he filled 20 in the details, and that e-mail does not mention that the 21 cockpit was illuminated. 22 We also heard through the testimony that there was a 23 third person in that helicopter, but we didn't hear from him. 24 We didn't hear that he saw anything at all that night. 25 Who else did we hear from? We heard from Dr. McLin. DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 106 of 124 331 1 And you certainly heard a lot about his training and his 2 experience and his research. 3 his career to studying the effects of lasers on the eye and 4 laser eye safety, and it is clear that he is an expert about 5 those fields. 6 And he has certainly dedicated But at the end of the day, he is an accomplished 7 optometrist and a vision scientist. 8 medical evidence, vision evidence, I believe that he could 9 evaluate that evidence and help guide you in determining the 10 And if we had evidence, issues that are before you. 11 But what did Dr. McLin really tell you? Well, first 12 he told you that a person who was looking, with good eyesight, 13 could see a green laser if it reflected off of something. 14 We know that the first flash did not reflect. 15 went through an open door. 16 was in the helicopter, as close as you could get, and he 17 didn't see it. 18 It Deputy Storar didn't see it. Much closer than Mr. Bowser. And the second strike, well, we don't know what kind 19 of reflection that made. 20 no cockpit illumination. 21 Deputy Austin told the FAA there was And even if Dr. McLin's testimony has merit on this 22 issue, he doesn't know anything about Barry Bowser or the 23 pilots. 24 Barry could have or couldn't see was speculation. 25 He He didn't witness the event. His testimony about Another point he made -- and it doesn't really take DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 107 of 124 332 1 an expert to tell you this -- that the more a helicopter is 2 hit and for the longer amount of time that it is lit, the more 3 likely the person with the laser pointer was acting 4 intentionally. 5 But here, this all happened in about five seconds. 6 fraction of a second followed by -- immediately by about two 7 seconds, and then nothing. 8 9 Dr. McLin also told you that a laser beam expands over a distance. And you know this wasn't 20 feet in your 10 classroom or boardroom or however you may be familiar with 11 using a laser pointer. 12 air. 13 away. 14 expanding, it was getting bigger. This was a helicopter 500 feet in the I believe the testimony was about an eighth of a mile So at this point, the laser wasn't a pinpoint. It was 15 So this certainly could have been an accident. 16 law contemplates a scenario just like this case, and it 17 doesn't allow for a person to be convicted. 18 And this wasn't random. The Mr. Bowser didn't tell you 19 that he was out there waving a laser pointer around, closing 20 his eyes, twirling around. 21 It wasn't random. He told you, just like he told the FBI, and just like 22 he told Officer Celedon, that he was pointing it up, and then 23 he heard something and then he reacted. 24 moment, he directed the beam. 25 A And so in that The definition of aim is to point or direct an object DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 108 of 124 333 1 at a target. 2 the laser pointer must have been pointed, directed at it. 3 That's a fact. 4 If the helicopter gets hit with a laser pointer, The second piece of this is that he had to have done 5 that knowingly. 6 to be found by you. 7 Those two elements are -- each of these need We are not talking about some random freak occurrence 8 in the whole big sky. 9 why this happened. 10 There is a reasonable explanation about We also heard from Officer Celedon. We know that 11 when he arrived, he had already been told by the flight crew 12 that Mr. Bowser was the one who had used the laser pointer. 13 And after Mr. Bowser unlocked the gate for him, he 14 acknowledged -- he had a pretty good understanding about why 15 the police were there. 16 He understood. And he understood at that point, that 17 he had hit the helicopter with the laser pointer. 18 and two together. 19 ten to 12 minutes. 20 The helicopter had been orbiting him for It was clear. But this wasn't an interrogation. 21 this interrogation was about two minutes. 22 thought he had his suspect in custody. 23 clearly identified by dispatch. 24 yeah, it was me." 25 He put two The substance of Officer Celedon The suspect had been Mr. Bowser told him, "Yeah, And you heard the questions that Officer Celedon DEFENDANT'S CLOSING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 109 of 124 334 1 asked and the way that he phrased them. 2 questions he didn't ask. 3 answered, equivocally. You noticed the You heard the way Mr. Bowser You heard the way he was speaking. 4 Mr. Bowser and, frankly, I suspect, Officer Celedon 5 didn't know the elements of the federal offense, and neither 6 one was parsing the statute in that two minutes in the car on 7 the way to the station. 8 9 And really, that's it. That's the evidence against Mr. Bowser. 10 What about facts you haven't heard from the 11 government? 12 Mr. Bowser to law enforcement where he said that he 13 intentionally aimed the laser pointer at the helicopter. 14 Well, you haven't heard any statements from You didn't hear from the FBI Special Agent in charge 15 of the case who was with Deputy Nicholson. 16 Mr. Bowser made a recorded statement to the FBI, and the 17 government didn't play that for you. 18 act. 19 That was an intentional And what about some other evidence you heard? 20 you heard from Mr. Bowser. 21 accident. 22 turned. 23 And we know that Well, You heard him tell you this was an "I was pointing it up. The helicopter responded. I heard something. I I realized, I stopped." It is not enough for the government to present 24 evidence on the pilot's experience or to have an expert tell 25 you how strong a green laser might have been or what a person GOVERNMENT'S REBUTTAL ARGUMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 110 of 124 335 1 might have seen. 2 It is not enough. They have to prove to you beyond a reasonable doubt 3 that Mr. Bowser set out that night to strike that helicopter, 4 and the evidence simply doesn't show it. 5 So, ladies and gentlemen, now, the government gets 6 one more chance to speak to you, but this is it for me and 7 Erin Snider and Mr. Bowser. 8 9 So we ask you to please remember these important constitutional principles. Mr. Bowser is innocent. The 10 government has failed to meet its burden to prove to you 11 beyond a reasonable doubt all of the elements that they have 12 to prove. 13 So the prosecutor gets to talk to you one more time, 14 but you will have the final say, and we are confident that you 15 will find him not guilty. 16 Thank you for your time. 17 THE COURT: 18 MS. ESCOBAR: Rebuttal? Ladies and gentlemen, in the whole big 19 sky, the defendant chose to aim the laser pointer at the 20 police helicopter and strike it two times. 21 accident. 22 This was not an Dr. McLin testified that the facts are consistent 23 with a deliberate act. It was not an accident. The defendant 24 testified that he told the truth to Officer Celedon when he 25 told him at the time of the laser incident that he pointed the GOVERNMENT'S REBUTTAL ARGUMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 111 of 124 336 1 laser pointer at the helicopter. 2 He said the only thing he was lying about was the 3 laser and where it was. 4 actually was. 5 to Todd, and he didn't know where Todd was, so that that piece 6 of evidence could be retrieved. 7 The actual -- where the laser pointer He said he lied, that he gave the laser pointer Now, it may not be a big deal to anyone that the 8 defendant admitted on the stand today that he lied about the 9 laser pointer, but ladies and gentlemen, he would have you 10 believe what he testified to and his version of the truth is 11 correct. 12 The defendant admitted to lying to the police. The 13 defendant has given multiple excuses as to why he did what he 14 did, that he was trying to test the capability of the laser, 15 and he found batteries and he put it in and he was playing 16 with his dog and maybe the radio tower. 17 The fact of the matter is he pointed the laser 18 pointer, as he said, at the helicopter, and he struck it two 19 times. 20 to divert their attention away from a serious call and to 21 investigate. 22 hits to cause the pilot to feel the effects of the laser 23 strikes, to experience flash blindness, to have the experience 24 of feeling like sand was being poured in their eyes, a 25 gravelly feeling. Those strikes were significant enough for the airmen Those strikes were serious enough and direct GOVERNMENT'S REBUTTAL ARGUMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 112 of 124 337 1 The defendant has provided multiple inconsistent 2 stories of what occurred and would have you believe his 3 testimony. 4 should not be believed by you. 5 with a deliberate act. Those inconsistencies discredit his testimony and The evidence is consistent 6 The government's expert has testified this was not an 7 accident, the two successive strikes with the intervening five 8 seconds. 9 turn and the defendant to directly hit was consistent with 10 11 The time it took for the aircraft to make the wide tracking, a deliberative act. The number of strikes, the multiple locations of the 12 strikes on the aircraft is inconsistent with what the 13 defendant would have you believe. 14 His inconsistencies undermine his credibility, and 15 his prior convictions can be considered by you in discrediting 16 his testimony. 17 involving fraud, deceit, and dishonesty. 18 Prior convictions for crimes, serious crimes His testimony should not be credited. His testimony 19 is not consistent with what you and your common experience 20 know to be the truth. 21 And what the defendant knew at the time when the 22 police responded to the call for help, when they asked, and it 23 was unsolicited, "Do you know why we are here?" 24 25 And I'm not talking in the bigger, broader philosophical sense. GOVERNMENT'S REBUTTAL ARGUMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 113 of 124 338 1 The defendant knew immediately what the answer to the 2 question was when the cops appeared at the Sillect property. 3 His unsolicited response was, "Because I pointed the laser at 4 the helicopter." 5 That establishes his knowledge. 6 The defendant knew why the police were here. We have proven to you beyond a reasonable doubt what 7 you, based on your common sense and experience know to be 8 true, that the defendant knowingly aimed the laser pointer at 9 the police helicopter. 10 The evidence establishes beyond a reasonable doubt 11 the defendant's guilt, and the government is not required to 12 bring in every single possible witness to establish the crime. 13 The defense has the ability to secure other witnesses, should 14 they desire, to have you hear the testimony of the original 15 case agent. 16 We have established beyond a reasonable doubt the 17 very simple elements of the simple crime. The defendant 18 acknowledged that he knew what he was doing, and that, really, 19 is the end of the story. 20 What the pilot indicated in that Laser Beam 21 Questionnaire really has no evidentiary value as he testified, 22 the laser, the FAA form that the pilot completed at or near 23 the time of the laser incident was submitted to the FAA for 24 statistical purposes only, not for criminal prosecution. 25 was said or not said in the pre-populated form should have no What GOVERNMENT'S REBUTTAL ARGUMENT Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 114 of 124 339 1 value to you. 2 What is important and what we asked you to key in on 3 at the very beginning of the case is not only what happened 4 here, but what the defendant knew at the time of the offense 5 when the cops showed up. 6 7 One last time, here is the unsolicited response. (The audio was played.) 8 9 That is his immediate response. established. 10 Knowledge has been He knew why the police were here. It is now your job to follow the law and do your 11 duty. Don't leave your common sense at the courtroom door. 12 Using your common sense, assessing the credibility of the 13 defendant, who has admitted today to lying in the past, and 14 has been convicted of crimes involving dishonesty, you need to 15 now follow the law, do your duty, what you have been sworn to 16 do, and find the defendant guilty. 17 Thank you. 18 THE COURT: For the alternates, the law does not 19 allow in a criminal case the alternates to go into the jury 20 room until and unless it is necessary to substitute you in for 21 that purpose. 22 23 And so I ask you now, do you have anything in the jury room now still? 24 ALTERNATE 1: 25 THE COURT: Yes. Could I ask you to go get whatever it is Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 115 of 124 340 1 you have in there and bring it back out. 2 3 (Alternate 1 left the courtroom to retrieve her property.) 4 THE COURT: For the 12 who are going to go deliberate 5 now, she is going to -- let's see, Juror 1, she is probably 6 going to need you to open that door when she comes back 7 because it is locked. 8 that? 9 So when you hear, could you just do In just a few minutes, we are going to be sending in 10 the verdict form, the instructions, the jury instructions, the 11 evidence that has been received into evidence, and we are 12 going to be sending in a -- the note forms in the event that 13 you need to send me a note while you are deliberating. 14 And we are going to deal with the alternates as soon 15 as you leave the courtroom to go take care of the beginning of 16 the deliberations. 17 18 19 20 21 22 I ask, Irma, please, to administer the oath. (The Court security officer was sworn.) THE COURT: Any questions or issues, ladies and gentlemen? Is there any reason, Counsel, I should not now have the jury leave the courtroom and deliberate? 23 MS. ESCOBAR: No, your Honor. 24 MS. BATEMAN: No, your Honor. 25 THE COURT: So the 12 of you please go into the jury Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 116 of 124 341 1 room, take your notes, and if you have any issues, write them 2 down and send them out. 3 4 (The jury left the courtroom to begin their deliberations at 11:31 a.m.) 5 6 MS. PETTIGREW: Your Honor, the large exhibits were also admitted. 7 THE COURT: We know that. 8 are you from geographically? 9 ALTERNATE 1: Fresno. 10 ALTERNATE 2: Bakersfield. 11 THE COURT: 12 13 14 All right. I can't remember. Where Do you have cell phone numbers? (Both alternates answered affirmatively.) THE COURT: If you will give the cell phone numbers 15 to Irma before you leave the courtroom, then you are free to 16 go about your personal business, but in the event, for 17 instance, a juror got ill or for some reason could not 18 continue on, we would, at random, which is what the law 19 requires, select one of you to come back in. 20 And in that event, we would call you and you would 21 need to come right away; in other words, if you are at work or 22 doing something else, you would have to stop doing that and 23 then come in right away. 24 25 Do you accept that proposition? (Both alternate jurors indicated affirmatively.) Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 117 of 124 342 1 THE COURT: I'm also going to ask you to leave your 2 jury badges and your notes with Irma when you give her your 3 cell phone numbers. 4 And I will tell you that in the event the jury 5 reaches a verdict without needing to call either of you back, 6 we will call you right away, as soon as they reach a verdict, 7 and tell you that. 8 9 So if you don't get a call, that means that they are still deliberating, because you get a call for one of two 10 reasons, either we need one of you to come back in, or we are 11 discharging you. 12 In the event that we are discharging you, please then 13 at that point -- not now, but at that point -- you may talk to 14 anybody you want to about this case. 15 The reverse is also true. 16 to people about the case, don't. 17 your choice. 18 If you don't want to talk It is totally up to you, But between now and then, when we call you to tell 19 you that the jury has reached a verdict or has been 20 discharged, you still are jurors. 21 So all of the same admonitions apply. You can't talk 22 to anybody or allow anybody to talk to you, and no research of 23 any nature or sort. 24 this case until you get a call. 25 tell you will depend on what you can and can't do. In other words, don't do anything about And then depending on what we Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 118 of 124 343 1 Is that acceptable to both of you? 2 ALTERNATE 2: Absolutely. 3 ALTERNATE 1: Yes. 4 THE COURT: 5 Finally, in the event I don't have you come back, and Any questions or concerns? 6 in other words, I don't see you again on this case, two 7 things. 8 9 10 One, I want to thank you very much on behalf of the court system, all the judges, the counsel in this case, parties in this case, for your service. 11 You can always figure out how to answer a question 12 where nobody wants you on a jury and you didn't do that. 13 Neither one of you did that. 14 and does tell us a great deal about how you view the law. That is very much appreciated 15 Secondly, in the event of this next year, either one 16 of you is called by your county superior court where you live 17 for jury duty, you may tell them that you have served here and 18 tell them when. 19 And they can call, if they wish, the jury 20 commissioner, because we have a reciprocal agreement that in 21 the event that you get called in the next year, that you may 22 use this as a reason not to serve there. 23 That doesn't preclude you from serving there if you 24 want to. It is just that if you don't want to, you do not 25 have to if it is within the next year. Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 119 of 124 344 1 Anything else that you need to address with me? 2 ALTERNATE 2: I can go ahead and leave town? If I 3 get called, it would be an hour, hour and a half for me to get 4 back up. 5 6 THE COURT: 9 Leave your cell phone on and be available, but we will call you either way. 7 8 That's fine. If you would then approach Irma and take care of that business, then we will let you go. (The alternate jurors left the courtroom.) 10 THE COURT: Both the jurors who have gone to 11 deliberate and the alternates have left the courtroom. 12 issues? 13 MS. ESCOBAR: 14 THE COURT: 15 MS. BATEMAN: 16 No, your Honor. How do you want to be available? Your Honor, just briefly, we would like to renew our Rule 29 motion at this point. 17 THE COURT: 18 MS. BATEMAN: 19 THE COURT: 20 MS. BATEMAN: 21 THE COURT: 22 Any Same reasons, same ruling. Understood. How would you like to be available? I can leave my cell phone with Irma. If that's what you prefer to do, that's fine. 23 Ms. Escobar? 24 MS. ESCOBAR: 25 THE COURT: Cell phone, your Honor. Done. We will let you know if they have Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 120 of 124 345 1 2 3 4 5 6 7 8 9 10 11 12 any contact whatsoever with me. (Recess) 4:05 p.m. (The following proceedings were had outside the presence of the jury, to wit:) THE COURT: Back on the record. defendant are present. We received a note from the jury a few minutes ago saying the jury has reached a unanimous verdict. It is signed by Juror Number 11. Is there any reason we should not call the jury for the verdict? 13 MS. ESCOBAR: No, your Honor. 14 MS. BATEMAN: No, your Honor. 15 THE COURT: 16 Counsel and We are ready for the jury. Mark this as Court Exhibit A. 17 (Court's Exhibit A was marked for identification.) 18 (The jury returned to the courtroom with a verdict at 19 20 4:14 p.m.) THE COURT: Let the record reflect that the jury has 21 joined, rejoined us. 22 time, when I say, "The Jury," I'm talking about 12 in number. 23 The alternates are not here. 24 25 We are still on the record, and this We have received a note from you, signed by you, Juror 11, as foreperson of the jury, indicating that the jury Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 121 of 124 346 1 has reached a verdict. 2 THE FOREMAN: 3 THE COURT: 4 5 6 7 Is that true? That is true. Could you please hand the verdict to the Court security officer. (The verdict was handed to the Court.) THE COURT: The verdict is in proper form. dated and it is signed. It is The Court will read the verdict. 8 "We, the jury, find the defendant, Barry Lee Bowser, 9 as follows as to the sole count of the indictment: 10 Guilty." 11 It is dated July 1, today, and signed by the 12 foreperson. 13 Is there anybody who wishes the jury polled? 14 MS. BATEMAN: 15 THE COURT: Yes. I have just read a verdict indicating 16 that your finding is for guilt. 17 voted in the jury room? 18 19 20 Is that how you personally (All jurors affirmed their verdict individually). THE COURT: The Court orders the clerk of the Court to record the verdict. 21 Is a reading of the recorded verdict waived? 22 MS. ESCOBAR: Yes, your Honor. 23 MS. BATEMAN: Yes, your Honor. 24 THE COURT: 25 discharge this jury? Is there any reason why I should not now Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 122 of 124 347 1 MS. ESCOBAR: No, your Honor. 2 MS. BATEMAN: No. 3 THE COURT: Ladies and gentlemen, you are now done 4 with this case and you are now done with your federal jury 5 service. 6 actually sit as jurors in a case and come to verdict, that you 7 are discharged. 8 9 10 It is my policy that when you sit as jurors, And you are discharged from your -- not just this case, but from your obligation in the federal court. You may now talk to anybody you want to about the case. 11 The reverse is also true. If you don't want to talk 12 to people, you don't have to. 13 you or in any way obligate you to talk. 14 Nobody will, of course, force Your notes, if you will leave them please on the 15 table in the jury room, your notes will be destroyed without 16 anyone ever having read them, just like I promised you they 17 would. 18 I'm asking you in just a moment to return to the jury 19 room and leave your badges, your jury badges on the table as 20 well. 21 Any one of you certainly could have figured out how 22 to answer questions that were being asked yesterday when we 23 were selecting this jury, and you could have figured out how 24 to get out of jury duty by answering questions a certain way 25 so that you knew that people would not want you on the jury, Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 123 of 124 348 1 2 and you did not do that. And that is a very strong statement to me and to the 3 entire court, and to the entire community, frankly, that you 4 take the rule of law seriously, you take the United States 5 Constitution seriously, and I appreciate that very much. 6 7 On behalf of the Federal Judges of the Eastern District of California, I thank you for your service. 8 And do you have any questions or issues for me? 9 All right. Thanks. You are now discharged and you 10 may go back to the jury room and take care of those items and 11 then you are free to go. 12 (The jury left the courtroom.) 13 THE COURT: Let the record reflect that the jury has 14 left the courtroom. 15 look for judgment and sentencing? How does September 28th, at, say, 9:30, 16 MS. ESCOBAR: Fine with the government, your Honor. 17 MS. BATEMAN: Let me check. 18 THE COURT: 19 MS. ESCOBAR: No, your Honor, thank you. 20 MS. BATEMAN: No. 21 THE COURT: 22 23 24 25 Fine. Okay. It's fine. Thank you. Anything else that we need to do? We will be in recess. (The proceedings were concluded at 4:20€p.m.) Case 1:15-cr-00088-LJO-SKO Document 82 Filed 07/09/15 Page 124 of 124 349 1 2 3 I, PEGGY J. CRAWFORD, Official Reporter, do hereby certify the foregoing transcript as true and correct. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated: 9th of July, 2015 /s/ Peggy J. Crawford PEGGY J. CRAWFORD, RDR-CRR