Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 1 of 223 1 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 1 ) ) ) ) ) ) Fresno, California Tuesday, June 30, 2015 REPORTER'S TRANSCRIPT OF PROCEEDINGS Vol. 1, pgs. 1 To 225, inclusive NOTE: SEALED PAGES 20 AND 21 FILED SEPARATELY REPORTED BY: PEGGY J. CRAWFORD, RDR, CRR, Official Reporter Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 2 of 223 2 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 81 Filed 07/09/15 Page 3 of 223 3 INDEX GOVERNMENT'S WITNESSES: KEVIN AUSTIN DIRECT EXAMINATION BY MS. PETTIGREW CROSS-EXAMINATION BY MS. BATEMAN REDIRECT EXAMINATION BY MS. PETTIGREW RECROSS-EXAMINATION BY MS. BATEMAN FURTHER REDIRECT EXAMINATION BY MS. PETTIGREW 108 109 139 147 152 157 JEREMY STORAR DIRECT EXAMINATION BY MS. PETTIGREW CROSS-EXAMINATION BY MS. BATEMAN 157 158 190 TAMARA FLEMING DIRECT EXAMINATION BY MS. PETTIGREW 193 193 LEON McLIN DIRECT EXAMINATION BY MS. ESCOBAR VOIR DIRE EXAMINATION BY MS. BATEMAN FURTHER DIRECT EXAMINATION BY MS. ESCOBAR CROSS-EXAMINATION BY MS. BATEMAN REDIRECT EXAMINATION BY MS. ESCOBAR 198 198 203 208 219 221 EXHIBITS GOVERNMENT'S Received 1-a and 1-c 2-a 2-b 1-d 3-a 3-b 1-b, 2-a-1, and 2-b-1 116 122 128 171 176 178 225 DEFENDANT'S C and D 156 ***** Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 4 of 223 4 1 Tuesday, June 30, 2015 2 8:30 a.m. 3 4 Fresno, California (The following proceedings were had outside the presence of the jury, to wit:) 5 THE COURT: 6 Let's call the case of United States versus Bowser, 7 Thanks, everyone. Action Number 088. 8 Your appearances, please. 9 MS. ESCOBAR: 10 11 Please be seated. Karen Escobar, Bayleigh Pettigrew, Case Agent Josh Nicholson, on behalf of the United States. MS. BATEMAN: And good morning, your Honor. Janet 12 Bateman and Erin Snider on behalf of Barry Bowser, who is 13 present in court. 14 THE COURT: 15 MS. BATEMAN: Who has issues? Couple brief ones, your Honor. With 16 respect to the recording that we received on Friday, it seemed 17 from the government's response to our motion yesterday that 18 they don't intend to introduce it, but it would be our request 19 for a ruling precluding it. 20 THE COURT: 21 MS. BATEMAN: Precluding them from using it. 22 MS. ESCOBAR: Your Honor, we don't intend to use it 23 in our case-in-chief. 24 rebutted, we might need it, but I don't anticipate. 25 THE COURT: A request for a ruling for what? If there is something that needs to be It is precluded in the case-in-chief. If Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 5 of 223 5 1 it is going to be used on rebuttal, then you would be required 2 to chat with defense counsel to make sure they don't not see 3 it coming. 4 MS. BATEMAN: Your Honor, we couldn't decipher the 5 audio, and we don't have a transcript from the government, so 6 we truly don't know what is said on it and how the government 7 will be using it, but I guess that goes to your point. 8 THE COURT: 9 MS. ESCOBAR: 10 Does the government know what it says? It is difficult to hear. got it. 11 THE COURT: 12 MS. ESCOBAR: Well, how can you use it for any reason? I don't know. There are four clips in 13 the -- taken at various locations during booking. 14 know if anything might become relevant. 15 I don't know. 16 That's how we THE COURT: I don't There is some video. I don't think the issue is relevance. 17 think the issue is if you don't know what it says and nobody 18 can decipher it, how could it be used? 19 MS. ESCOBAR: I don't know. Maybe the defendant will 20 say he was coerced, and the video doesn't show any. 21 don't know what issue might come up. 22 THE COURT: All right. I So I My guess is it is not going 23 to come up, so we will wait and see, but it doesn't sound like 24 it is going to be used. 25 What else? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 6 of 223 6 1 MS. BATEMAN: Understood, your Honor. 2 And with respect to defendant, the recording of 3 defendant's statement to Officer Celedon, if, you know -- it 4 is our request that that not be permitted to be played, but if 5 it is to be played, we would request that the government not 6 be permitted to play the very last portion of that statement 7 where the officer is -- advises Mr. Bowser on what not to try 8 to smuggle into the jail and Mr. Bowser's response to that 9 statement. 10 THE COURT: What's the response? 11 MS. BATEMAN: 12 And then Officer Celedon says, "It's something I tell He says, "Yeah, yeah." 13 everybody, you know, because if you do," and Mr. Bowser says, 14 "Yeah, I quit that stuff years ago, bro'." 15 And Celedon, he continues to push it, "Yeah, just 16 because if you do take it into the jail, there is two 17 additional felony charges that are on you." 18 Mr. Bowser says, "Oh, really?" 19 And Celedon says, "Just to let you know, if there is 20 anything on you, now is the time to tell me." 21 And he says, "No, I don't." 22 THE COURT: 23 24 25 Before that, they were talking about drugs? MS. BATEMAN: The way it all starts is Officer Celedon says, "I'm going to transport you to the Kern Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 7 of 223 7 1 Receiving Facility. 2 of your charge when we get there, but before we get there, do 3 you have any type of contraband, any type of narcotics, 4 weapon, or anything like that?" 5 I'm going to book you. THE COURT: I will notify you Any problem with that, making sure if you 6 are going to play it, at least that far, that you just turn it 7 off? 8 9 MS. ESCOBAR: We didn't edit that part out. I will -- I will practice. 10 However, we did prepare transcripts, and I would need 11 time to -- perhaps during the break we will be able to get 12 some help, but we would neat to redact that last part out. 13 THE COURT: Maybe with scissors. 14 easy because it is at the end. 15 MS. ESCOBAR: 16 If the defense could tell me exactly where to start this, then we will get working on editing. 17 18 It should be pretty THE COURT: I assume it is just in the last part that you just read? 19 MS. BATEMAN: It's the last part, yeah. 20 MS. ESCOBAR: Let me just make sure. 21 THE COURT: 22 Unlike other editing, this one is truly scissors. 23 MS. BATEMAN: It starts with, "Good deal, buddy." 24 MS. ESCOBAR: So we will start editing. 25 THE COURT: Anything else? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 8 of 223 8 1 MS. ESCOBAR: Your Honor, I don't know if -- 2 MS. BATEMAN: I was going to ask that Mr. Bowser be 3 permitted to be unshackled during the trial. 4 that's the Court's procedure for every defendant. 5 THE COURT: Are there any -- I deal with so many 6 cases, I can't remember the answer to this. 7 violence in his background? 8 9 10 MS. BATEMAN: your Honor. I don't know if Is there any I have to take a look at his rap sheet, I believe he has an old domestic violence from more than ten years ago. 11 MARSHAL: Your Honor, more than two or three domestic 12 violence and a couple of assault with a deadly weapon, a 13 firearm. 14 MS. ESCOBAR: Your Honor, also according to the 15 California Department of Corrections records, he was -- they 16 noted crimes of violence, whether they be arrests, charges, 17 convictions, but there was torture, there was kidnapping, 18 great bodily injury, inflicting corporal injury to spouse, 19 battery on a person. He got in a physical altercation in 20 jail. Disciplinary action taken. 21 enemies noted. 22 the CDC. That's noted. It says He is a Pecker Wood Gang member, according to 23 THE COURT: 24 MS. BATEMAN: 25 THE COURT: Anything else? No, your Honor. That request is denied. However, the Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 9 of 223 9 1 record should reflect that the table is curtained so that 2 people cannot see his legs or his feet. 3 Let us know when -- if you are going to call him as a 4 witness, and we will make sure that he is able to get onto the 5 witness stand without that activity going on in front of the 6 jury. 7 MS. BATEMAN: Understood, your Honor. Thank you. 8 THE COURT: 9 MS. BATEMAN: I think that's all, your Honor. 10 MS. ESCOBAR: On our side, your Honor, the defense Anything else? 11 has indicated who their witnesses may be. 12 Mathis. 13 the date of birth provided. One is David We did run a criminal history for a David Mathis with 14 However, we need the Social Security number. 15 the defense if they could ask that witness because there are a 16 number of David Mathis with that date of birth that links to 17 people with other names with that date of birth and the same 18 Social Security number. 19 I asked I don't know what this David Mathis' Social Security 20 number to rule out whether this David Mathis might be their 21 David Mathis. 22 THE COURT: 23 MS. BATEMAN: 24 THE COURT: 25 MS. BATEMAN: Is this person in custody? No, your Honor. Are you able to obtain it or you are not? We provided the last four digits of the Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 10 of 223 10 1 Social Security number that our investigator gave to us. 2 not sure if our investigator has the full number. 3 know if our investigator just asked Mr. Mathis for the last 4 four digits. 5 THE COURT: I'm I don't The odds of having -- if you have the 6 last four digits, the odds of somebody else having those last 7 four digits are almost a billion to one. 8 9 10 MS. ESCOBAR: would check, if that's my understanding. MS. BATEMAN: 12 THE COURT: 13 MS. ESCOBAR: That's the best information we have. Sounds like you have what they have. If it has been verified with the witness, then -- 15 MS. BATEMAN: 16 further since then. 17 THE COURT: 18 We haven't spoken with Mr. Mathis any I mean if we -When are you planning on calling him? Tomorrow? 19 MS. BATEMAN: 20 depending on how it goes today. 21 They provided and they said they thought that was it, but they 11 14 We did ask for the last four. THE COURT: If we call him, it would be tomorrow, If you are going to call him, just ask 22 him before he answers a question like that on the witness 23 stand in front of everybody, and if it is confirmed, it is 24 confirmed. 25 it to the government. If it is different, it is different, but provide And, of course, if the government is Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 11 of 223 11 1 going to run that information, they have an obligation to 2 share it. 3 MS. ESCOBAR: 4 THE COURT: 5 MS. ESCOBAR: 6 THE COURT: 7 Yes. Any other issues? No, your Honor. All right. Jury should be here in about 15 minutes or so, and we will move forward. 8 (Recess) 9 (The prospective jurors entered the courtroom and the 10 following proceedings were had in open court, to wit:) 11 THE COURT: 12 Let's call the case of United States versus Bowser, 13 16 17 18 Please be seated. Action Number 88. 14 15 Thank you, everyone. Could I have your appearances, Counsel, for the record. MS. BATEMAN: Good morning, your Honor. Janet Bateman and Erin Snider for Mr. Barry Bowser. MS. ESCOBAR: Good morning, your Honor. Karen 19 Escobar, Bayleigh Pettigrew, Josh Nicholson, on behalf of the 20 United States. 21 THE COURT: Good morning, ladies and gentlemen. I 22 know that you have been sent to this courtroom, as do you, for 23 the purpose of picking a jury. 24 you here in the courtroom for this purpose, but we do not have 25 any legal right to waste your time, and it is not our We have a legal right to have Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 12 of 223 12 1 intention to do that. 2 We recognize that you have come here not necessarily 3 as a volunteer, and we recognize that you have other places to 4 be and other things to do and that you are only here because 5 you respect the rule of law and the United States 6 Constitution. 7 So what we are going to do, first of all, is we are 8 going to have numerous of you come into the area of the jury 9 box and sit in designated seats. 10 We already know, just so there is no secret about it, 11 we already know who you are and which seat you will be in. 12 And the reason we do is because the law requires this to be 13 done in a random selection form, and the computer, by random, 14 has already selected the order in which we call you forward. 15 So we will designate certain seats as we call you 16 forward, and I ask the Clerk of the Court to please start that 17 process. 18 (Jurors are identified by number only. Any reference to 19 personal identifiers regarding jurors has been redacted. 20 Actual personal information requires a motion and Court 21 order.) 22 THE CLERK: Number 9, Juror 009. 23 THE COURT: Sir, come to your right and immediately 24 go to your right and go to the farthest seat there is back 25 from me. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 13 of 223 13 1 THE CLERK: Juror 008. 2 THE COURT: Next to him, please, if you would. 3 THE CLERK: Juror 007. 4 THE COURT: Sir, we ask you to come over here, top 5 row, and then all the way in. 6 THE CLERK: 7 Juror 006, Juror 005, Juror 004, Juror 003, Juror 002, Juror 001. 8 Number 18, Juror 018. 9 THE COURT: 10 Thanks. Juror 018, if you would please turn to your right and go right in front of Juror 009. 11 THE CLERK: Juror 017. 12 THE COURT: Juror 017, if you would go right next to 13 Juror 018, please. 14 15 THE CLERK: Juror 016, Juror 015, Juror 014, Juror 013, Juror 012, Juror 011, Juror 010. 16 Number 19, Juror 019, Juror 020, Juror 021, Juror 17 022, Juror 023, Juror 024, Juror 025, Juror 026, Juror 027, 18 Juror 028. 19 THE COURT: For those of you who have not been called 20 forward, that does not mean that you will not be called 21 forward. 22 forward, and so I ask that you help us to not waste anyone 23 else's time, including yours, and here's how. 24 25 You have an excellent chance of being called In just a couple of moments, I will start questioning the people who have come into the area of the jury box that Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 14 of 223 14 1 you just heard and you saw moved into the area of the jury 2 box. 3 You will note that my questions are formed so that 4 the is either "yes" or it is "no." 5 then I will ask whoever is answering the question yes who is 6 seated in the area of the jury box to raise his or her hand. 7 That will tell me that their answer is yes. 8 9 10 If the answer is "yes," If their answer is "no," they just sit there and wait for the next question. Here is how you come in. In all the years I have 11 been a judge, the only consistent comment that judges get from 12 jurors is that they don't like the selection of jury process 13 when the questions are repetitive, when the judge or counsel 14 ask the same question over and over again. 15 judges don't like it either. 16 And, frankly, most It is not the best use of time. Here is how you can help. Listen to the questions as 17 I ask them and make a mental or a written note of any question 18 I ask to which you would have raised your hand; in other 19 words, your answer would have been yes. 20 Because when you come forward, I will ask you, "Did 21 you hear the questions?" 22 "Were there any questions to which you had raised your hand," 23 in other words, you would have answered the question "yes." 24 25 Assuming you say yes, I will ask, If you tell me, "Yes, there was one question or there were a couple," I'm going to ask you, "What are they?" If you Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 15 of 223 15 1 tell me at that point, you don't remember, I have only one 2 option, and that is to ask all the same questions again, and 3 that is the repetition that we try to escape. 4 Any questions about that process or procedure? 5 All right. We know, ladies and gentlemen, that it is 6 very common for somebody to recognize somebody by face and not 7 by name or the other way around. 8 9 And so this time, I'm going to ask everybody at counsel table, both counsel table, to introduce themselves 10 again. And this time, I am asking you not only to listen to 11 their answer as far as their name is concerned, but I'm asking 12 you to take a look at them. 13 14 Because my followup question is going to be do you recognize any of these people by name or by face. 15 MS. ESCOBAR: Good morning. I'm Karen Escobar. 16 an Assistant U.S. Attorney here in the Eastern District of 17 California in the U.S. Attorney's Office, which is in this 18 building. 19 I'm Bayleigh Pettigrew is a Special U.S. Attorney, also 20 assigned to the U.S. Attorney's Office, Eastern District of 21 California. 22 23 And then Josh Nicholson, he is an FBI Task Force Officer, employed by the Kern County Sheriff's Office. 24 THE COURT: 25 MS. BATEMAN: Thank you. My name is Janet Bateman and I work for Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 16 of 223 16 1 the Office of the Federal Defender. 2 3 MS. SNIDER: And good morning. Snider and I also work for the Office of the Federal Defender. 4 THE DEFENDANT: 5 THE COURT: I'm Barry Bowser. I'm the defendant. That is my question, ladies and 6 gentlemen. 7 introduced by face or by name? 8 hand? 9 My name is Erin Do you recognize anybody who has just been If so, could you raise your I am going to ask in just a moment the issue of 10 whether or not anybody feels as though they cannot sit on this 11 jury for hardship reasons. 12 couple of things. 13 short-in-duration trial. 14 is a holiday for the 4th of July holiday, but we believe that 15 this case will be done this week. 16 Before I do that, however, a One, this is going to be a relatively In other words, we know that Friday And so, as I said, this is, relatively speaking, a 17 very short trial, and it might be a good one for those of you 18 who are pressed for time to sit on. 19 I know that jury duty is inconvenient. And this will 20 be a surprise to some of you, if not all of you, but judges 21 are not exempt from jury duty. 22 And sometime ago, I got a notice of jury summons from 23 the court I used to sit on for a number of years, the Fresno 24 Superior Court, and I knew exactly what that was when I saw 25 the return address, as I was walking up the driveway, flipping Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 17 of 223 17 1 2 through the mail. And I admit, not with a lot of happiness or pride, 3 that I stopped and thought, "Oh." 4 mind's eye, my chambers desk just filling up to the ceiling. 5 And I could see in my And I caught myself and reminded myself that I sit up 6 here and tell you all the time that we know it is 7 inconvenient, but it is more important than the inconvenience. 8 And so I adjusted my attitude and went over and I served over 9 in the superior court. 10 11 And when I got back, my desk was piled up to the ceiling, just like I knew it would be. And I dug out, just like I dig out when I go on 12 vacation with my family. 13 know that. 14 And it is not an easy task. You have done it. But I will just tell you that the United States 15 Constitution provides for this process. 16 not a small issue. 17 right that people have, including you. 18 You all It is not -- it is This is a major issue. It is a major There is nobody in this courtroom who can say with 19 out-and-out certainty that you or a member of your family or a 20 close friend won't ever need a jury, whether it be a criminal 21 case or a civil case. 22 sued, you don't know, you just simply don't know what the 23 future brings. 24 25 Whether you are suing somebody or being But I guarantee you this, if you are involved in a court action and a jury is involved, it would be the most Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 18 of 223 18 1 important thing in your life at that moment, and you will not 2 understand it if somebody tries to get off jury duty because 3 it is inconvenient. 4 The term "inconvenience" and "legal hardship," those 5 are not synonyms. 6 did, I could clear out this courtroom in probably less than 90 7 seconds based on the inconvenience issue. 8 9 They don't mean the same thing. If they We know that. But I just simply ask you to take it seriously. And if you were one of the ones who, when you got this, began 10 talking to neighbors and friends saying, "How do I get out of 11 this," I have got family members, I have got neighbors, and 12 from time to time, they will call me or come over and say, 13 "How do I get out of this?" 14 basically say, "You can't." 15 And I, as nicely as I can, And so if you are going to tell me you have a 16 hardship, I'm going to tell you in advance I have an 17 obligation to question you about it, because I have to follow 18 the law, just like we are going to be asking you to follow the 19 law, for those of you who take the oath to be the jury in this 20 case. 21 And the law gives me certain factors that I must 22 consider in determining whether or not somebody has a true 23 legal hardship. 24 Now, having said that, if you believe that you have a 25 true legal hardship, please raise your hand and I will take it Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 19 of 223 19 1 up right now. Anyone? 2 Is it Juror 018? 3 JUROR: 4 THE COURT: Yes. Sir, could I ask you to stand so the 5 court reporter can see you. 6 me what it is. 7 JUROR: 8 THE COURT: 9 It makes it easier on her. Tell Can I approach the bench? Yes, you can. On the record, Counsel. (Juror coughing.) 10 THE COURT: Do you need some water? 11 JUROR 010: I'm sick. 12 THE COURT: Are you sick to the point of where you 13 14 15 16 17 18 19 20 21 22 23 24 25 feel as though you need to defer your -JUROR: If I'm going to be a disruption, you know. During the day, I'm going to cough a lot, but that's it. THE COURT: We will get back to you very soon. (Sealed proceedings were continued to the next page without interruption.) Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 20 of 223 22 1 (The following proceedings were had in open court.) 2 3 THE COURT: to let you go on this case. 4 JUROR: 5 THE COURT: 6 cough. Thank you. I don't feel real great. Some of us have just gotten over that It lasts for a month or more. 7 JUROR: 8 THE COURT: 9 JUROR: 10 Juror 010, we like you, but we are going That's what the doctor told me. I could have told you that for free. You pay the premiums. You might as well use the insurance. 11 THE COURT: If you'll go back to the Jury 12 Commissioner's Office and tell them, why don't we defer you 13 for six months or so, and by then I'm sure you will be happy. 14 JUROR: 15 THE COURT: 16 Thank you. Can we fill seats 18 and 10 in that order, please. 17 THE CLERK: Juror 029. 18 THE COURT: Turn to the right and take the empty seat 19 there. Thanks. 20 THE CLERK: Juror 030. 21 THE COURT: Juror 030, this seat right here. 22 Thank you. 23 Did I miss any hands on the hardship issue? 24 THE COURT: 25 JUROR: Yes, sir, Juror 026, tell me what it is. The company I work for is going to close down Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 21 of 223 23 1 temporarily. It could happen any day now, so I'm going to be 2 out of a job. I don't know if it is going to happen today, 3 tomorrow, or next week or the week after. 4 THE COURT: 5 JUROR: 6 THE COURT: 7 10 JUROR: Is there a reason you have to be there I might help with moving from one to another or I might be out of work, period. THE COURT: Well, what you are telling me is their hardship and not yours. 13 JUROR: 14 THE COURT: I understand. And I appreciate it, but that's not a 15 legal hardship. 16 JUROR: 17 THE COURT: 18 Is it Juror 015? 19 20 Couple weeks, a month. They are not sure. 11 12 They are relocating. when they do? 8 9 Tell me more a little bit about this. That's fine. Thanks. Yes, tell me what it is, if you would. JUROR: It happens to be a bad week where my parents 21 are my babysitters, and they are going to be out of town. 22 niece is having heart surgery. My 23 And my husband is off today watching the kids, but he 24 does not get a salary, he is paid commission, so if he doesn't 25 work, we don't get paid. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 22 of 223 24 1 THE COURT: Let me get personal with you for just a 2 minute, but I will only get as personal as I need to be. 3 your husband does not go to work and because he is 4 baby-sitting and he does not get paid when he doesn't go to 5 work, which I think is what you have told me, are you still 6 able to pay your bills? 7 If And I don't want you to give me a lot of detail 8 because I'm not entitled to it and I don't want to get that 9 personal with you, but the answer is either "yes" or "no." 10 JUROR: 11 THE COURT: 12 Is this supposed to be a one-week trial? I believe it will be three days, today, tomorrow, and the next day. 13 JUROR: Then yes. 14 THE COURT: 15 JUROR: 16 THE COURT: 17 Anybody else? 18 All right, what I'm going to do is I'm going to read Yes what? I can pay the bills. Thank you for your honesty. 19 you a brief statement of what this case is about. 20 that I'm reading you this, it is not evidence, and for those 21 of you who ultimately sit as jurors in this case, you may not 22 rely on what I am telling you right now. 23 The fact Now, you may find that odd, but there is a real 24 reason for it. I am not a witness in this case. And you can 25 only decide, those of you who sit as jurors, you can only Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 23 of 223 25 1 decide this case based on the evidence that is brought either 2 by stipulation, meaning both sides agree to this fact and we 3 tell you, or somebody comes and sits on the witness stand and 4 testifies to it under oath. 5 You may be saying now, "All right. 6 on it, then why are you doing it?" 7 simple. 8 9 If we can't rely And the answer is very I need you to know in a very general sense about what this case is about so that if there is anything going on in 10 your life now or in the past that you believe would affect 11 your ability to be fair to both sides, that you can tell me, 12 and I can't wait until we swear you in and we are in the 13 opening statements or the first witness, and you raise your 14 hand and say, "Gee, if I realized it was this type of case, I 15 would have told you I can't sit and I can't be fair." 16 17 18 That's why I'm doing it. said or the reasons? Any questions as to what I All right. This is a criminal case brought by the United States 19 Government. 20 Bowser, with aiming the beam of a laser pointer at an 21 aircraft, specifically a Kern County Sheriff's helicopter, or 22 its flight path, on or about September 12, 2014. 23 The government charges the defendant, Barry Lee The charge against him is contained in a document 24 called an "indictment." An indictment simply describes the 25 charge the government brings against the defendant, and it is Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 24 of 223 26 1 not evidence and does not prove anything. 2 The defendant in this case has pleaded not guilty to 3 the charge and is presumed innocent unless and until the 4 government proves the defendant guilty beyond a reasonable 5 doubt. 6 7 The defendant has the right to remain silent and never has to prove innocence or to present any evidence. 8 9 Now, based on that statement about what this case is about, is there anybody, based on education, training, or 10 something that's happened, experience-wise, or within your 11 family, is anybody thinking, "I don't think I should be on 12 this case because I'm not real sure I can be fair to both 13 sides?" 14 15 If I have just described you, please raise your hand and let's talk about it. 16 Yes, sir, Juror 030? 17 JUROR: I wanted to point out, your Honor, that I 18 currently work for the Department of Justice, the Commission 19 on Peace Officers Standards and Training, and one of my 20 responsibilities is to work with the Kern County Sheriff's 21 Department and their staff on training issues, although I have 22 no experience with any aircraft or, as far as I know, the 23 officers involved. 24 25 THE COURT: Let me ask you what we call a hypothetical question. Before I do, I'm going to ask you to Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 25 of 223 27 1 assume certain things, and before I do that, I want to make 2 sure everybody, including you, Juror 030, understand that I am 3 going to listen to the evidence for the first time, just like 4 you. 5 So in my question, I am not suggesting anything on 6 one side of this case or the other because I don't know any 7 more about it than you do. 8 so do you. 9 I know what the charges are, but So don't think I'm suggesting anything. I'm not. Let me assume -- let's assume in this case that you 10 sit as a juror, and let's assume that when you get to the 11 point at the end of the trial to deliberate the case with your 12 fellow jurors, that your fellow jurors and you decide to vote 13 not guilty in this case. 14 Would that in any way affect what you do or how you 15 do it or, in your mind, the relationship you have with anyone 16 in the Kern County Sheriff's Office if they were to find out? 17 18 19 JUROR: No, sir. I have no reason to believe it would. THE COURT: And would it affect in any way your vote, 20 just knowing that you are going to go back, and let's assume 21 that they know, the people that you are talking to and dealing 22 with, that they would know how you voted. 23 way affect your decision in this case? 24 JUROR: 25 THE COURT: Would that in any No, sir. Is there any reason that you can think of Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 26 of 223 28 1 why you could not be fair to both sides, not just one, but 2 both sides in this case? 3 JUROR: 4 No, sir. I wanted to point out the background because of the possible connection to Kern County. 5 THE COURT: Fine. I will, in a couple of minutes, be 6 reading a list of witnesses, and just listen carefully so that 7 if you know any of these people, you can let us know. 8 JUROR: 9 THE COURT: 10 JUROR: Yes, sir. Anyone else? Yes, Juror 001. I have a question. My English is very 11 limited, especially on understanding, and probably half of 12 what you said, I didn't really get it. 13 that's going to effect. 14 15 THE COURT: JUROR: 20 21 THE COURT: Okay. Counsel approach for just one moment, please. (The following proceedings were had at the sidebar, to wit:) 22 23 About what you read, there is some words that I didn't even know what they are. 18 19 So far, I have said things you did not understand? 16 17 So I don't know if THE COURT: We are at sidebar and all counsel are present. 24 You are waiving his appearance? 25 MS. BATEMAN: Yes. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 27 of 223 29 1 THE COURT: I don't know, ordinarily, if they don't 2 understand, we can't have them because we can't have another 3 juror explain to them what words mean. 4 because I don't want to embarrass her. 5 What do you want me to do? 6 MS. BATEMAN: Excuse her. 7 MS. ESCOBAR: Agreed. 8 THE COURT: 9 10 I am here at side Okay. (The proceedings at the sidebar were concluded.) THE COURT: Juror 001, I appreciate very much your 11 straightforwardness on this, and obviously, it is very 12 important and essential and necessary that everybody 13 understand everything because, otherwise, it puts a person 14 into a position where you have to look at another juror and 15 say, "What did they say?" 16 an interpreter for you, and that is not fair. 17 18 And then that juror becomes really And so we are going to thank and excuse you from the jury service. 19 Can we fill seat 1, please. 20 THE CLERK: Juror 031. 21 THE COURT: Juror 031, have you heard the questions I 22 have asked so far? 23 JUROR: Yes, sir. 24 THE COURT: 25 JUROR: No. Would you have raised your hand so far? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 28 of 223 30 1 THE COURT: 2 Yes, is it 013? 3 JUROR: 4 about the understanding. 5 6 Have I missed any hands so far? I'm the same way as the lady just there, THE COURT: So. Have you understood everything that I have said so far? 7 JUROR: No, I didn't. 8 THE COURT: 9 Either counsel wish to be heard? No. 10 MS. BATEMAN: No, your Honor. 11 MS. ESCOBAR: No, your Honor. 12 THE COURT: All right. Well, for the same reason, I 13 hope it is not embarrassing to you -- it is not intended to 14 be -- but we do have to follow the law and the law does 15 require a person to understand proficiently English, and so we 16 are going to thank and excuse you. 17 JUROR: 18 THE COURT: Can we fill seat 13? 19 THE CLERK: Juror 032. 20 JUROR 013: Do I have to report somewhere? 21 THE COURT: No. 22 JUROR 019: Excuse me, your Honor. 23 THE COURT: Juror 032, did you hear my questions so 24 25 Thank you. far? JUROR: Yes, your Honor. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 29 of 223 31 1 THE COURT: 2 JUROR: 3 THE COURT: Any other hands I missed? 4 JUROR 019: I cannot understand fully, but I can 5 No, sir. understand, not to speak fluently. 6 THE COURT: 7 are saying to me. 8 but -- 9 Would you have raised your hand so far? JUROR: I -- English isn't -- Let me make sure I understand what you Are you saying you understand the words, Not fully. 10 THE COURT: 11 MS. ESCOBAR: No, your Honor. 12 MS. BATEMAN: No, your Honor. 13 THE COURT: 14 excuse you. Does either counsel wish to be heard? Well, for the same reason, we have to So I thank and excuse you, and you are done. 15 JUROR: 16 THE COURT: Can we fill seat 19? 17 THE CLERK: Juror 033. 18 THE COURT: Juror 033, good morning. 19 Thank you. Did you hear my questions? 20 JUROR: 21 THE COURT: 22 JUROR: 23 THE COURT: 24 Do we have anyone who is currently or in the past 25 Yes, I did. Would you have raised your hand so far? No, sir. Any other hands I missed? been a law enforcement officer? All right. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 30 of 223 32 1 Yes, sir, Juror 031. 2 JUROR: 3 THE COURT: 4 JUROR: 5 6 7 Yes, sir. Tell me when and where? From 1973 to about 1988, I was a deputy for the San Bernardino County Sheriff's Department. THE COURT: All right. Then did you retire from the department? 8 JUROR: I quit because of family reasons. 9 THE COURT: Was there anything about your service 10 that, or the reason that you quit, that would affect in any 11 way your ability to be fair and impartial to both sides here? 12 JUROR: No, sir, I don't believe so. 13 THE COURT: 14 obviously, you took training. Being a law enforcement officer, 15 JUROR: Yes, sir. 16 THE COURT: 17 JUROR: 18 THE COURT: 19 the police academy, correct? You went to the police academy? Yes, sir. 20 JUROR: 21 THE COURT: And they obviously teach law, some law in Yes, sir. Will you assure me that if I give you 22 law, which I'm -- it is part of my function, I'm required to 23 do that in the form of jury instructions -- and you are 24 thinking that's inconsistent with something somebody else told 25 you along the way, will you assure me that you will follow the Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 31 of 223 33 1 law as I give it to you and not based on something somebody 2 else has told you? 3 JUROR: Absolutely. 4 THE COURT: There will be law enforcement officers 5 who will testify in this case. Do you believe you would be 6 inclined, based on your training and experience, to be 7 inclined to believe them more because of your training and 8 experience or not? 9 enforcement people? In other words, more than nonlaw 10 JUROR: I don't believe so, no. 11 THE COURT: 12 Yes, sir, Juror 030? 13 JUROR: Okay. Anybody else? Prior to my current employment with the 14 Department of Justice, I worked for the Kingsburg Police 15 Department for 28 years, and retired last year as their Chief 16 of Police. 17 THE COURT: All right. 18 were at every rank there is. 19 JUROR: 20 THE COURT: 21 the law as I give it to you. Well, obviously you basically Yes, sir. Same question with regard to following Any problem there? 22 JUROR: No, sir. 23 THE COURT: 24 be law enforcement officers. 25 believe them simply because they are law enforcement officers Same question with regard to there will Would you be more inclined to Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 32 of 223 34 1 versus the nonlaw enforcement officers? 2 JUROR: 3 THE COURT: 4 No, sir. Do you have any concerns about your objectivity or fairness to both sides in this case? 5 JUROR: No, sir. 6 THE COURT: 7 Okay. Anyone else? I'm broadening intentionally this question. 8 Now, I'm not talking about you. 9 family members, close friends, law enforcement. 10 Yes, Juror 003? 11 JUROR: 12 THE COURT: 13 JUROR: I'm talking about close Yes. Juror 003. I have my two son-in-laws, who, one is 14 currently a Fresno police officer, and one is in the cadet 15 program, and a nephew that works for Hanford PD. 16 THE COURT: Based on these relationships, would you 17 have any issue at all in deciding if the evidence -- you were 18 convinced the evidence pointed to not guilty, would you have 19 any problem knowing that you, of course, will be talking to 20 your relatives possibly about this case, not yet, but after 21 you are done with jury service? 22 JUROR: 23 THE COURT: 24 25 No. Not a problem? Do you feel as though there is any problem with your objectivity to both sides? JUROR: No. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 33 of 223 35 1 THE COURT: 2 JUROR: Anyone else? Yes, sir, Juror 007. My brother is retired Atwater City Police, 3 and he was also worked for the Park Service, undercover 4 narcotics, and my nephew is currently a captain in Mariposa. 5 6 THE COURT: Same issue with regard to fairness, objectivity to both sides on those relationships? 7 JUROR: 8 THE COURT: 9 Yes, Juror 008? 10 11 JUROR: No problem. I don't know if you count it law enforcement, but my husband is a Tulare County Superior Court Judge. 12 THE COURT: 13 JUROR: 14 THE COURT: 15 16 17 Anyone else? Lloyd? Yes. I have known him for a number of years, especially when I was on Fresno Superior Court. Would that in any way make a difference to you as to your fairness and objectivity here? 18 JUROR: No, not at all. 19 THE COURT: Give him my best. 20 Next hand? Juror 017? 21 JUROR: 22 serve with the Merced PD. Yes. 23 THE COURT: 24 JUROR: 25 My dad, my mother, and my brother all They are retired now. Were they law enforcement officers? My mom wasn't. She worked in records keeping, but my dad and my brother were. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 34 of 223 36 1 2 THE COURT: It is the same issue. and objective? 3 JUROR: 4 THE COURT: 5 JUROR: 6 THE COURT: 7 Yes, sir, Juror 016? 8 JUROR: 9 Yes. Thanks. Anyone else? A friend of mine flies for the Highway Patrol. THE COURT: 11 JUROR: 12 THE COURT: On the helicopter? He was flying a fixed plane. 13 you don't know? 14 JUROR: 15 THE COURT: Has he been involved with helicopters, or I'm not positive of that. Have you talked to him in the past about his experience as a pilot with the Highway Patrol? 17 JUROR: 18 THE COURT: 19 To both sides? Yes. 10 16 Can you be fair Yeah. Has an issue come up on the issue of laser? 20 JUROR: Not laser, specifically. 21 THE COURT: 22 JUROR: 23 THE COURT: What, more generally? Being shot at, random. Okay. You know what the charge is here. 24 Do you believe that that in any way would affect your ability 25 to be fair and impartial to both sides? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 35 of 223 37 1 JUROR: No. 2 THE COURT: 3 We are down to Juror 026, I think. 4 JUROR: Anyone else? I have a cousin who is a police officer for 5 the City of Reedley, I believe. 6 that are State of California correctional officers and another 7 friend who is a Deputy Sheriff, Fresno County. 8 9 THE COURT: JUROR: 11 THE COURT: 13 Would any of those relationships affect your ability to be fair to both sides in this case? 10 12 And I have various friends No. Okay. There was another hand, I think. Is it Juror 023? JUROR: Yes. My father is retired, but he was the 14 head administrator for the state parole or something. 15 do not believe that would influence my decision. 16 THE COURT: 17 JUROR: 18 THE COURT: 19 JUROR: 20 21 And I He is retired now from that? He is retired. Yes. Juror 022, did you have your hand up? My oldest son is a police officer for the City of Atwater. THE COURT: Same question, same issue. Would you be 22 fair to both sides in this case or do you think the 23 relationship might affect that fairness? 24 JUROR: Yes, I believe I can be fair. 25 THE COURT: Anyone else? Yes, Juror 033? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 36 of 223 38 1 2 JUROR: My cousin is a detective with the City of Stockton. 3 THE COURT: 4 JUROR: 5 THE COURT: 6 Is anybody, now or in the past, licensed to fly? 7 Same issue. No problem. Anyone else? Helicopter, plane? 8 Juror 015, are you a pilot? 9 JUROR: Yes, private pilot, fixed wing. 10 THE COURT: 11 JUROR: 12 THE COURT: 13 JUROR: Yes. with an instructor. 15 THE COURT: I'm not licensed to fly, unless Have you had any training with regard to your pilot's license concerning lasers? 17 JUROR: 18 THE COURT: 19 As a pilot? Interning. 14 16 Have you ever flown helicopters? No. Have you had any experience with regard to lasers? 20 JUROR: No. 21 THE COURT: Do you believe that if a helicopter pilot 22 comes in and describes certain events, that you will be able 23 to decide this case based on the evidence presented here 24 rather than perhaps training that you have had in the past? 25 JUROR: Yes. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 37 of 223 39 1 THE COURT: 2 now or in the past? 3 4 Okay. Anyone else, a pilot, licensed, Same question with regard to your spouses or close family members. Pilots? 5 Yes, Juror 022? 6 JUROR: The same son I was talking about also is a 7 helicopter pilot, licensed only to fly with an instructor at 8 this point, but he is going through training. 9 10 THE COURT: JUROR: What agency is it? He works for Atwater PD. It is not through 11 the PD, though, that he is getting the training for the 12 helicopter. 13 THE COURT: 14 about his piloting? 15 JUROR: 16 THE COURT: 17 JUROR: 18 THE COURT: Have you had any discussions with him Some. Other than his getting the license? No, not really. In this particular case, I believe there 19 is going to be at least one witness who comes in and testifies 20 from law enforcement indicating that he piloted a helicopter, 21 and there will be an allegation or evidence that a person in 22 that position will be discussing a laser. 23 Now, obviously this case has to be decided on the 24 evidence here and not perhaps on any current or future fear 25 that you might have that something might happen to your son. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 38 of 223 40 1 Do you think that you can be completely fair and 2 impartial in this case and decide this case based on what the 3 evidence is here rather than the other? 4 JUROR: 5 THE COURT: 6 JUROR: 7 THE COURT: 8 JUROR: 9 THE COURT: 10 JUROR: Yes, I believe so. Not a problem? No. Okay. Yes, Ms. -- is it 025? Yes. Juror 025? Just because you asked, my grandson is a 11 pilot for Air Force One, but that's never been a discussion 12 with the helicopters. 13 THE COURT: 14 JUROR: 15 16 family. Who is this again? My grandson. But our discussions are about It has nothing to do with his job. THE COURT: Do you believe that that position that he 17 holds would in any way affect your ability to be fair here to 18 both sides? 19 JUROR: No. 20 THE COURT: 21 From time to time, we will have a juror who will say, Anyone else? 22 "Well, gee," when I give jury instructions, which is the law, 23 I will have a juror who will say, "Mmmmm, I don't agree with 24 that law." 25 And my response is always the same. Okay. You don't Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 39 of 223 41 1 have to agree with the law, you just have to follow it. And I 2 will tell you as a judge, from time to time, we will see a law 3 that comes down from the Legislative branch or we will see a 4 law that comes down from an appellate court, and we just don't 5 agree with it. 6 But that does not give us permission to say, "So I 7 will find a different law that I agree with and follow that 8 one." 9 judges, just like you, as the jury, whoever you are, will take 10 It doesn't work that way. We have taken oaths as an oath to follow the law as it is. 11 Is there anyone who believes that if they don't agree 12 with the law, that they will not be able or willing to follow 13 the law as it is? 14 Anyone? All right. Has anybody had what you consider to be 15 unpleasant experiences with law enforcement? 16 including tickets. 17 getting a ticket and they are thrilled. 18 19 Now, I am not I don't think anybody marches away from I'm talking about something more substantial than that. Anyone? 20 Has anyone, for instance, registered a complaint 21 against any law enforcement officer, either verbally or in 22 writing? 23 I broaden that to include close family members. Has anybody had such positive experiences with law 24 enforcement that you feel as though you are biased in favor of 25 law enforcement and against anyone else who might come in and Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 40 of 223 42 1 2 testify? Is anybody currently a litigant? In other words, you 3 are being sued or you are suing someone else? 4 expand in the last ten years. 5 Yes, sir, Juror 016? 6 JUROR: 7 THE COURT: 8 9 10 It was an accident. I include and Small claims. Was there anything about the result or the process that you felt was unfair? Anyone else? Yes, sir? JUROR 030: In the course of my employment, I was 11 named in a couple of different cases, but they were all 12 settled prior to going to court. 13 14 THE COURT: Was there anything about the process before settlement that you thought was unfair? 15 JUROR: 16 THE COURT: 17 Does anyone have law background, a lawyer, paralegal? 18 Yes, Juror 033. 19 JUROR: 20 about 30 years. No, sir. Yes. 21 THE COURT: 22 JUROR: 23 THE COURT: 24 JUROR: 25 Anyone else? I was a legal assistant, paralegal for Where? Modesto. What type of a law firm was it? 20 years for a criminal defense attorney, and I worked personal injury and bankruptcy. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 41 of 223 43 1 THE COURT: All right. With regard to the time that 2 you spent working on criminal cases, I'm sure that you were 3 exposed to the law? 4 JUROR: Yes. 5 THE COURT: It is the same issue that I raised 6 before, and that is that if you have run across criminal law, 7 and I give you something that you are thinking, "That's not 8 consistent with what I knew or thought I knew about that," 9 will you assure me that you will follow the law as I give it 10 to you? 11 JUROR: 12 THE COURT: 13 Absolutely. Do you believe that you have any bias one way or the other in criminal cases? 14 JUROR: 15 THE COURT: 16 Has anyone ever sat as a juror? 17 duty. 18 19 No. Anyone else? I don't mean on jury I mean actually sat as a juror. Yes, Juror 020, was there anything you considered to be negative? 20 JUROR: No. 21 THE COURT: Anyone else? 22 All right. Keep your hands up for a second. Thank 23 you. For the eight of you who just raised your hands -- you 24 can put them down -- did anyone serve on a case that did not 25 reach a verdict? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 42 of 223 44 1 2 All right, Juror 015, sometimes people view that as being a very negative experience. 3 JUROR: 4 THE COURT: 5 JUROR: 6 THE COURT: 7 JUROR: 8 THE COURT: 9 JUROR: Yes. Do you remember anything about the case? Yeah. 11 JUROR: 14 Was it a criminal case or a civil case? I'm not sure. THE COURT: 13 How long was it? 15 years, I think. 10 12 Did you? What was it about, generally? Guy was pulled over and had a gun in the back of the truck. THE COURT: It was criminal. What happened? The jury didn't agree? 15 JUROR: Correct. 16 THE COURT: That is part of the process. It doesn't 17 happen often, but it does happen, and the law does allow for 18 that to occur. 19 20 Do you believe that there was anything about that process that was so negative that you bring it with you now? 21 JUROR: No. 22 THE COURT: Was there another hand? Yes, Juror 020, 23 was it the same situation, where the jury could not reach a 24 verdict, couldn't agree? 25 JUROR: Yes. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 43 of 223 45 1 THE COURT: 2 JUROR: 3 THE COURT: 4 JUROR: 5 THE COURT: 6 Civil. 8 THE COURT: 11 Same question. Was it so negative that you think it would affect your ability to be fair here? JUROR: 10 How long ago? I think it was about ten years ago. 7 9 Criminal or civil? No. For those of you who raised your hands earlier, did anyone, even if you reached a verdict, consider your jury service to be negative? Anyone? Has anyone been involved in any litigation where you 12 felt, whether it settled or was dismissed or anything else, 13 but during the time that it was in progress, you felt that the 14 system did not work for you? 15 Anyone? Does anybody have any close friends or relatives that 16 have been involved, to your knowledge, with the criminal 17 justice system? 18 crime, arrested, jailed or imprisoned, a witness to a crime. 19 That is involvement. And what I mean by that is charged with a 20 Yes, Juror 008. 21 JUROR: 22 23 24 25 I have a nephew who was imprisoned for drug use maybe 20 years ago, in his late teens, early 20s. THE COURT: Was there anything that you were aware of that you felt that the criminal justice system did not work? JUROR: No. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 44 of 223 46 1 THE COURT: 2 JUROR: 3 I have an ex son-in-law that is in jail for murder, first degree. 4 THE COURT: 5 JUROR: 6 THE COURT: 7 JUROR: 8 THE COURT: 9 10 Yes, Juror 025? Okay. What county? Tulare. And based -- were you a witness? No. Based on what you know about it, based on what you learned about it from perhaps somebody else, was there anything that you felt that the system did not work? 11 JUROR: No. 12 THE COURT: 13 JUROR: Anyone else? Yes, Juror 026. I have got a cousin who has been in prison, I 14 don't recall what for. 15 was for bank robbery. 16 was murder from a long, long time ago. 17 THE COURT: And a couple of friends. One of them The other one was for -- I believe it Same question about based on what you do 18 know about either one of those circumstances, was there 19 anything that you felt where the system did not work? 20 JUROR: I don't believe so. 21 THE COURT: 22 JUROR: 23 THE COURT: 24 JUROR: 25 THE COURT: Anyone else? Yes, sir, Juror 002. Cousin who was convicted of theft and drugs. Were you a witness to it? No. Based on what you did learn, any problems Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 45 of 223 47 1 with the way the system worked? 2 JUROR: 3 THE COURT: 4 JUROR: 5 No. Anyone else? Two cousins that are gang members. They have been in and out prison. 6 THE COURT: 7 JUROR: Are you close to them or not close? I see them sometimes, like once a month when 8 they go to my house, but rarely. 9 together or nothing. 10 11 Yes, Juror 012? THE COURT: We don't hang around Based on what you know, any problems with the way the system worked? 12 JUROR: No. 13 THE COURT: Anyone else? Anyone who, either you, a 14 family member or a close friend, to your knowledge, employed 15 by the Federal Bureau of Investigation, the FBI, the Kern 16 County Sheriff's Office, or the Bakersfield Police Department? 17 Anyone? 18 Yes? JUROR 030: Again, through my work, I know a number 19 of people who work for the FBI or the Bakersfield Police 20 Department. 21 THE COURT: Then let me move to that question. 22 I'm going to read a list of names, and if you hear 23 one that you think, "Oh, I know that person," when I'm done 24 reading the list, that's when I'm going to need you to raise 25 your hand and tell me. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 46 of 223 48 1 FBI Task Force Officer Joshua Nicholson; FBI 2 employee, Justin Badger; a Senior Research Optometrist with 3 the Air Force, Leon McLin; Pilot/Deputy of the Kern County 4 Sheriff's Department, Kevin Austin; Tactical Flight Officer 5 with the Kern County Sheriff's Office, Jeremy Storar, 6 S-t-o-r-a-r; Kern County Deputy Izam Perez; Kern County 7 Sheriff's Office Deputy Lyles; Kern County Sheriff's Office 8 custodian of records Danielle Davenport; Bakersfield Police 9 Officers Eric Celedon, Christopher Bagby, Jared Ashby, Elena 10 Andrade; Bakersfield Police Department Crime Lab Supervisor 11 Jeff Cecil; FBI Bakersfield Police Officer Shane Shaff, 12 S-h-a-f-f; San Luis Obispo Sheriff Deputy Greg Roach. 13 Those are the law enforcement officers that I see on 14 the list. 15 read? Does anybody recognize any of the names I have just 16 If so, please raise your hand. 17 JUROR 030: Yes, sir. I don't think I know any of them, but 18 some of the name are familiar from the reviewing training 19 records or agency rosters with Bakersfield PD. 20 THE COURT: I want you to assume then that all of 21 those officers or police people employed by police agencies 22 testify. 23 way affect your ability to judge credibility with any of them? Do you believe that your familiarity would in any 24 JUROR: No, sir. 25 THE COURT: Anyone else? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 47 of 223 49 1 I know I have touched on the issue of whether or not 2 you are pilots. But does anybody, now or the in the past, 3 work on aircraft at any level? 4 just knowing what it is by definition, with the use of lasers? 5 By education, by experience? 6 Anyone? 7 JUROR 031: Is anybody familiar more than Yes, sir? I'm not sure I understand the question, 8 but I use lasers -- I just retired as a teacher, and we used 9 lasers a lot to project on the walls. 10 11 THE COURT: JUROR: 13 THE COURT: Yes. Are you familiar, other than using them, what you should do and what you should not do with them? 15 JUROR: Well, as far as pointing them at an aircraft, 16 I know you shouldn't, for sure. 17 classroom to point out things on the walls. 18 19 THE COURT: But I just used them in the That's the extent of your use and knowledge? 20 JUROR: 21 THE COURT: 22 JUROR: 23 The laser pointers? 12 14 I see what you are saying. Yes. Anyone else? Yes, sir, Juror 016? I studied physics, basic physics of lasers in college. 24 THE COURT: 25 JUROR: And do you remember much about it? Very little. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 48 of 223 50 1 THE COURT: Okay. Anyone else? Okay. 2 From time to time, we will have people who, for any 3 reason, are a little surprised that one of the functions of a 4 juror is to sit in judgment of somebody else's credibility. 5 In other words, are they telling the truth or are they not 6 telling the truth? 7 accurate? Are they more accurate than another witness or less 8 accurate? Those are all credibility determinations. 9 Are they accurate or are they not Is there anybody who, for any personal, religious or 10 any other reason, feel as though you cannot sit in judgment of 11 somebody else's credibility? 12 One of the things -- and I specifically refer to 13 those of you who are married -- one of the things that is 14 unusual about sitting as a juror is that it is one of the very 15 few times where the law allows us to interfere with your 16 relationship with your spouse by telling you you cannot talk 17 to them about this case while you are a juror. 18 What you do after you are done being a juror is 19 totally up to you, but while you are a juror, you cannot talk 20 to them about your service. 21 "I'm on a jury." 22 need to get in touch with you, but you can't tell them the 23 type of case it is, for instance. 24 any details. 25 You can't -- you can tell them, You can tell them where you are in case they And certainly not go into Is there anybody who would have any problem with that Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 49 of 223 51 1 2 order? Anyone at all? Obviously, in a courtroom, we have rules and we have 3 procedures. 4 brought the charge in this case, they go forward first. 5 have the burden of proving the case. 6 And for instance, since the government has And then afterwards, certainly the defense can ask 7 questions. 8 brought in here by the government. 9 in that way, by asking questions. 10 It is called "cross-examination" of any witness And they elicit evidence And then, if they wish, they can call witnesses from 11 the defense afterwards, "afterwards" meaning after the 12 government is through. 13 14 15 They We don't just have a free-for-all where everybody stands up and starts talking at you. So the point here is it is very important to both 16 sides, frankly, that you wait until you hear all of the 17 evidence before you make a decision and before you come to a 18 conclusion in the case. 19 20 21 Is there anybody who feels as though they lack the patience to do that? Anyone? I know I touched on this earlier. I don't know 22 whether Mr. Bowser is going to take the witness stand or not. 23 I don't know. 24 the purposes of this question, it doesn't make a lot of 25 difference to me. I haven't asked. Nobody has told me and, for Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 50 of 223 52 1 I will just tell you that, as a matter of law, a 2 person has a right not to take the witness stand, if they 3 don't wish to, when they are accused of a crime. 4 And the law further says that if they make that 5 decision not to take the witness stand, that you can't hold it 6 against them. 7 taken the stand if they had been innocent," because obviously, 8 you are punishing somebody for exercising a constitutional 9 right, and the law strictly prohibits that. 10 You can't say things like, "They would have Is there anybody who would have a problem in 11 following the law in the event Mr. Bowser doesn't take the 12 witness stand? 13 Anyone? For those of you -- and I thought of this earlier -- 14 for those of you who sat on juries, how many of you sat on 15 civil cases; in other words, somebody was suing somebody for 16 money, that sort of a case? 17 Any one person? All right. I will tell you, Juror 002, the law is completely 18 different, civil cases versus criminal cases. Will you assure 19 me that if I give you the law in this case and you are 20 thinking that's not consistent with what the judge told me in 21 the other case, that you will follow the law here? 22 JUROR 002: Yes. 23 THE COURT: Anyone else? 24 Has anybody worked for the federal government in the 25 past? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 51 of 223 53 1 Yes, sir, what did you do for them? 2 JUROR 020: 3 Service. 4 officer. 5 6 I was a tax auditor, revenue agent and appeals THE COURT: JUROR: 8 THE COURT: 10 How long was that that you stopped doing it? 7 9 I worked for the Internal Revenue I retired about two and a half years ago. Now, the government is part of this case. Would that in any way affect your ability to be fair to both sides? 11 JUROR: 12 THE COURT: 13 What -- who did you work for? 14 JUROR 015: 15 18 19 Anyone else? Same? Sharpe Army Depot, the Federal Distribution Center. 16 17 No, it would not. THE COURT: Were you a government employee for how long? JUROR: I believe it was '95 to '98, warehouse job. Yes, I could be fair. 20 THE COURT: Anyone else? 21 Has anyone worked for a prosecutor or a defense 22 attorney -- other than we heard from one, Juror 033 -- such as 23 the United States Attorney's Office, the District Attorney, 24 the City Attorney, Federal Defender's Office, Public 25 Defender's Office, or any particular criminal defense lawyer? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 52 of 223 54 1 Anybody work in any of those positions other than Juror 033? 2 All right. Is there anyone who believes that the 3 fact that charges have been brought in this case against 4 Mr. Bowser means he must have done something criminal? 5 other words, he is in the courtroom, he has been charged with 6 a crime. 7 his way out of this because he must be guilty of something? 8 Anybody thinking that? 9 In Does anybody feel as though now he better explain All right. If you are sitting there thinking, "Oh, I 10 hope that judge doesn't ask me a question about," whatever it 11 is, if I just described you, could you raise your hand and 12 let's talk about that? 13 Yes. 14 JUROR 031: When you asked them to stand up, see if 15 anybody looked familiar, over there, I couldn't see very well, 16 but looking at Mr. Bowser now, gosh, he looks really, really 17 familiar to me. 18 THE COURT: 19 JUROR: Where are you from? From Fresno. When I was working law 20 enforcement, San Bernardino, but that was so long ago, he 21 would probably have hair about the color of mine. 22 23 24 25 But he really, really looks familiar. I can't place him. THE COURT: an impression? So he looks familiar, but you don't have Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 53 of 223 55 1 2 3 4 JUROR: I don't think it had anything to do with what I did in San Bernardino, but, you know. THE COURT: you during the trial, would you be sure to tell me -- 5 JUROR: 6 THE COURT: 7 Yeah, sure. -- about what the relationship was or the experience? 8 JUROR: 9 THE COURT: 10 If you sit as a juror and if it comes to Yeah. Anyone else? If anyone is sitting there thinking, you know, "I 11 just don't think I ought to be a juror on this case," for 12 whatever reason you are thinking of, if I have just described 13 you, could you raise your hand and let's talk about that? 14 Each one of you, I believe, looking at your laps have 15 a questionnaire sitting there, and it will not take a 16 particularly long time. 17 Before we do that, let me ask. Is there anybody who 18 needs a restroom break? 19 that is -- I should have asked that at the beginning -- I can 20 sit up here for days without a break. 21 expecting anybody else to do that. 22 All right, you do. The reason I ask And it doesn't mean I'm For those of you who are going to sit as jurors 23 ultimately, all you have to do during your jury service, if 24 you need a break, just get my attention and say, "Could we 25 have a break," and I will never look at you and say, "No," and Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 54 of 223 56 1 I will never look at you and say, "Why?" 2 tell me you need a little break. 3 All you need is just So what we are going to do, let's do this. Let's 4 take, with this many people, let's take 15 minutes, max. 5 will be the midmorning break, and then we won't break again 6 until we have the jury. 7 Couple of things. 8 about the case. 9 this case. 10 It One, don't talk to each other Don't allow anyone else to talk to you about I will I assure you that -- counsel know this -- they 11 are ethical people, and if they are what you consider to be a 12 little standoffish or cold, that's what they are required to 13 do. 14 has to do with their ethics, and that's a good thing. It has nothing to do with you or your personalities, it 15 Secondly, and lastly, take a good look at what seat 16 you are in because that's the seat we need you in. 17 We have charts. 18 is very important, that you remain in the same seat. 19 No secret. That's how we remember your names. So no more than 15 minutes. And that 10:28, we will see you 20 in your seats, and we will come back and finish picking the 21 jury. 22 23 (The prospective jurors left the courtroom.) THE COURT: Ladies and gentlemen, if I could ask you, 24 we are going to take up a couple of legal issues. If 25 everybody who is on the jury panel, please step out in the Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 55 of 223 57 1 2 hallway and come back any time after ten minutes. Everybody in the courtroom is not a juror. Okay. 3 are in recess. 4 recess too, and remember, I promised on the shackling issue. We It is just that the defendant needed to take a 5 We are in recess. 6 MS. ESCOBAR: Your Honor, just was wondering, is the 7 Court going to ask the potential jurors if they know the names 8 of the nonlaw enforcement? 9 10 11 12 13 THE COURT: I can. There weren't too many of those, but I would be glad to. MS. ESCOBAR: Okay. (Recess) THE COURT: All right. 14 Counsel and parties are present. 15 jury are present. 16 17 18 We are back on the record. All members of the potential Any issues, any issues that you thought of that maybe you wanted to correct an answer, add to it? All right. There were a couple of other names, nonlaw 19 enforcement names that I wanted to bring to your attention too 20 on witnesses: 21 Lidia Bravo from the Kern County Superior Court, Tamara 22 Fleming and Michael Moreland. Daniel Gibson, David Mathis, George Rubio, 23 Anybody recognize any of those names? 24 All right. 25 Now, with regard to the sheet on your lap, it won't take as long as you might think. We are going Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 56 of 223 58 1 to ask each of you to answer those questions. 2 to read the question. 3 your answer. You don't have The question will be obvious based on 4 And also, if you have a question there that does not 5 pertain to you, for instance, what do your adult children do, 6 and you don't have any adult children, just skip it and move 7 right along without recognizing the question out loud. 8 9 And lastly, I ask that you speak out loud so that we can all hear you. 10 It is very important that we all hear you. It is also important that the court reporter can hear 11 you. 12 word anybody says in the courtroom. 13 She is tasked with the obligation of taking down every So that's why I ask you to speak out loud, especially 14 if you are of the nature where you are soft spoken. 15 BY THE COURT: 16 Q. Juror 031? 17 A. My full name is Juror 031. 18 elementary school for 23 years. 19 previous occupation with the Sheriff's Department. 20 21 I am retired after teaching And I have already stated my I have a Master's degree in Reading and am a Reading Specialist. 22 I'm married. 23 financial officer at a church. 24 for a huge construction firm in Sacramento. 25 My wife is also retired from being a I have a daughter who works I have a son who is an associate pastor of a church Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 57 of 223 59 1 in Riverside, and another daughter that is -- works with 2 Special Ed children at a middle school in Fresno. 3 have another daughter who is manager at a clothing store. 4 THE COURT: Okay. 5 BY THE COURT: 6 Q. Juror 002? 7 A. Juror 002, (spelling redacted.) 8 education is an Associate's from Valley College. 9 No wife. I'm unemployed. Q. 11 you doing? 12 A. I'm single. The last time you were employed, what type of work were Security. THE COURT: Thank you. 14 BY THE COURT: 15 Q. Juror 003? 16 A. Juror 003, (spelling redacted.) 17 assistant, and I have high school education. 18 Highest No children. 10 13 And I also And I am married. I am an optometry My husband is a restaurant 19 manager, and one of my children is a regional sales rep for a 20 tile company. 21 two are currently stay-at-home moms. 22 Q. What do you do with the optometry office? 23 A. I just actually started the new job yesterday, but the one 24 where I was working, because I was in an optometry office, I 25 was doing pretesting for the doctor and checking glasses, One is a retail manager at a retail shop, and Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 58 of 223 60 1 making appointments, sort of like an all-around thing because 2 it was a small office. 3 Q. 4 testifying in this case. 5 that you will decide based on the evidence here rather than 6 bringing things in from your work? 7 A. 8 9 There is a possibility that an optometrist will be If that occurs, will you assure us Yes. THE COURT: Thank you. BY THE COURT: 10 Q. Juror 004? 11 A. My name is Juror 004. 12 graduated from high school. 13 an auto mechanic, and I have three children. 14 THE COURT: I work in a Mexican restaurant. I am married, and my husband is They are minors. Thank you. 15 BY THE COURT: 16 Q. Juror 005? 17 A. I am Juror 005, (spelling redacted.) 18 have a Bachelor's degree in Liberal Studies and a teaching 19 credential. 20 I I'm a teacher. I I'm married, and my husband is director of 21 Alternative Ed at high school. 22 independent study school, which is a branch of our elementary 23 school district where I live. 24 THE COURT: 25 BY THE COURT: Thank you. I'm a K-8 teacher at an Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 59 of 223 61 1 Q. Juror 006? 2 A. Juror 006, (spelling redacted.) 3 My background is I have a Associate's degree in Liberal Arts, 4 and all mechanics. 5 and I don't have no kids, children. 6 Q. What does she teach? 7 A. K through 8. 8 9 I'm married. THE COURT: Occupation is security. My wife, she is a teacher, Thanks. BY THE COURT: 10 Q. Juror 007? 11 A. Juror 007, (Spelling redacted.) 12 I guess, I'm an environmental tech, environmental consultant 13 service, designing engineered septic systems for new 14 residences. 15 Been there 25 years. I have an AA. I am semiretired from -- I'm only part-time now. I'm married. She is retired from 16 Mariposa Human Services, and my son works for the fleet 17 services for Mariposa County. 18 THE COURT: Thank you. 19 BY THE COURT: 20 Q. Juror 008, can I ask you to stand, please. 21 A. Juror 008, (spelling redacted.) 22 eighth grade history and Constitution. 23 degree, and two and a half years post graduate work for 24 credentials. 25 I'm married. I'm a teacher. I teach I have a Bachelor My husband is a Tulare County Superior Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 60 of 223 62 1 Court Judge. 2 young mom not working, homemaker, and a substitute teacher is 3 the third one. 4 Q. 5 Constitution with students, both in middle school and high 6 school, and I will tell you that, hands down, eighth graders 7 are my favorite. 8 kids and respectful, and they are old enough where they are 9 mischievous. 10 A. 11 I have a child who is a high school teacher, a Judges from time to time go and speak about the They are still young enough where they are Yes, they are delightful. THE COURT: They are. 12 BY THE COURT: 13 Q. Juror 009? 14 A. Juror 009, (spelling redacted.) 15 two Bachelor degrees, and I'm single. 16 Q. The last time you were employed, what did you do? 17 A. I was -- I worked at the student bookstore. 18 THE COURT: I'm unemployed. I have Thank you very much. 19 BY THE COURT: 20 Q. Juror 030? 21 A. My name is Juror 030, (spelling redacted.) 22 employed as a senior consultant on the Commission for Peace 23 Officer Standards and Training. 24 Criminology from Fresno State. 25 Married. Currently I have a Bachelor degree in My spouse works in retail sales, Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 61 of 223 63 1 electronics. 2 college students. 3 the other one is working as a lifeguard. 4 And two adult children, both are full-time One is working in an agriculture lab and THE COURT: Thank you. 5 BY THE COURT: 6 Q. Juror 011? 7 A. My name is Juror 011, (spelling redacted.) 8 custodian for an elementary school. 9 Single. I am a night High school diploma. And my only daughter is a mother/homemaker. 10 THE COURT: Thank you. 11 BY THE COURT: 12 Q. Juror 012? 13 A. Juror 012, (spelling redacted.) 14 I'm a supervisor for a labor contractor company. 15 educational background, high school. 16 kids. 17 THE COURT: That's a -- occupation, And And I'm single and no Okay. 18 BY THE COURT: 19 Q. Juror 032? 20 A. My name is Juror 032, (spelling redacted.) 21 part-time sales associate for Orchard Supply Hardware, and I 22 have a B.A. degree in Geography. 23 children. 24 Q. And was your former spouse employed? 25 A. No. I'm a I am divorced, with no Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 62 of 223 64 1 THE COURT: Thank you. 2 BY THE COURT: 3 Q. Juror 014? 4 A. My name is Juror 014, (spelling redacted.) 5 licensed psychiatric technician. 6 I have an Associate's degree. 7 I believe he is unemployed. 8 9 Currently, I'm not working. I am separated. the Armed Forces. THE COURT: Thank you. 11 BY THE COURT: 12 Q. Juror 015? 13 A. My name is Juror 015, (spelling redacted.) 14 Sheriff's Department in the Finance office. 15 accounting certificate and AA degree. 16 a financial adviser. 17 THE COURT: I am married, and he is Thank you. BY THE COURT: 19 Q. Juror 016? 20 A. Juror 016, (spelling redacted.) 21 Previous employment was mechanic and ranching. 22 degree in Geology. 25 I work for the I have a 18 24 I am not sure, My daughter is a software developer and my son is in 10 23 I am a I am married. Currently not employed. I have a My wife, she works for a software company here in Fresno, and my son works for Tractor Supply. THE COURT: Thank you. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 63 of 223 65 1 BY THE COURT: 2 Q. Juror 017? 3 A. My name is Juror 017, (spelling redacted.) 4 family-owned pistachio orchard. 5 Justice, with a minor in Psychology. 6 no children. 7 THE COURT: I have a B.A. in Criminal I am single and I have Thank you. 8 BY THE COURT: 9 Q. Juror 029? 10 A. Juror 029, (spelling redacted.) 11 with Fresno Unified. 12 degree. 13 I work for a Semiretired administrator I have completed work for my doctoral I'm a widow. My husband was a creative director for 14 a large ad agency. 15 business in Paso Robles and my other son works for Golden 16 Stereo in San Francisco. 17 Q. What type of work does the first son do? 18 A. He owns a roofing and solar company. 19 Q. I'm sorry to ask this question and I don't mean to be 20 unkind, but I have to ask it. 21 have anything to do at all with crime? 22 A. 23 And my two adult sons, one owns his own Your husband's death, did it No. THE COURT: 24 BY THE COURT: 25 Q. Juror 033? Thank you. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 64 of 223 66 1 A. 2 social worker. 3 4 Juror 033, (spelling redacted.) I'm a retired clinical I have a Master's degree in social work. I am married. My husband is also retired and he was a high school English teacher. 5 I have two children and two stepchildren. 6 mechanic, one is a junior high Special Ed teacher, one is a 7 nurse, and one is a firefighter. 8 9 THE COURT: One is a Thank you. BY THE COURT: 10 Q. Juror 020? 11 A. Juror 020, (spelling redacted.) 12 previously worked for Internal Revenue Service, last employed 13 as an appeals officer. 14 and a teaching credential. 15 16 I am married. I'm currently retired. I have a Bachelor's degree in Spanish My wife is also retired. She previously was employed as an insurance rater. 17 THE COURT: Thank you. 18 BY THE COURT: 19 Q. Juror 021? 20 A. My name is Juror 021, (spelling redacted.) 21 schoolteacher. 22 Q. What level? 23 A. Second grade. 24 Q. Thank you. 25 A. I have a Bachelor's in Liberal Arts and a teaching I'm a I Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 65 of 223 67 1 credential. 2 I'm single and I have no children. THE COURT: Thank you. 3 BY THE COURT: 4 Q. Juror 022? 5 A. Juror 022, (spelling redacted.) 6 Currently working on my Bachelor's. 7 I'm married. I'm a registered nurse. My husband owns a vending business. 8 Four children, two of which are adults. 9 police officer, and the second is a student, working with my 10 The oldest is a husband as well in the business. 11 THE COURT: Thank you. 12 BY THE COURT: 13 Q. Juror 023? 14 A. I'm Juror 023, (spelling redacted.) 15 nurse. 16 San Francisco. 17 student. 18 Q. Graduate student in what? 19 A. History. 20 I'm a registered I have my Bachelor of Science from the University of I'm married and my husband is a graduate No children. THE COURT: Thank you. 21 BY THE COURT: 22 Q. Let's see, Juror 024? 23 A. Juror 024, (spelling redacted.) 24 unemployed, going to school. 25 Q. I am currently What did you do the last time you were working? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 66 of 223 68 1 A. I was in the sanitation department in a factory, tomato 2 processing. 3 Q. Thank you. 4 A. Not married. 5 THE COURT: Okay. 6 BY THE COURT: 7 Q. Juror 025? 8 A. Juror 025, (spelling redacted.) 9 been a housewife. 10 My occupation has always My background, high school. And I am a widow. My husband was self-employed as 11 a -- had a meat locker service. 12 plumbing contractor, owns his own business, and my daughter is 13 a bookkeeper. 14 Q. 15 anything to do with crime? 16 A. Same question. And my children, my son is a Was the death of your husband, did it have No. 17 THE COURT: Thank you. 18 BY THE COURT: 19 Q. Juror 026? 20 A. Juror 026, spelled (spelling redacted.) 21 supervisor. 22 children. 23 High school diploma. THE COURT: 24 BY THE COURT: 25 Q. Juror 027? Thank you. Restaurant And single. I have no Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 67 of 223 69 1 A. Juror 027, (spelling redacted.) 2 a cleaning company. 3 a manager in retail, and as well as my two older kids. 4 I am project manager for I have an Associate's degree. THE COURT: Thank you. 5 BY THE COURT: 6 Q. Juror 028? 7 A. Name is Juror 028, (spelling redacted.) 8 in a retail store. 9 My wife is I am a supervisor I have a high school diploma. I'm married and my wife is a teacher. 10 children. 11 Q. What level does your wife teach? 12 A. Seventh grade. No adult 13 THE COURT: 14 Any questions that you wish -- or excuse me, any 15 answers that you wish to amend in any way? 16 17 Thank you very much. All right. Each counsel will get approximately ten minutes, so we will start. 18 MS. ESCOBAR: Getting there. I will be fast. With 19 respect to the use of the laser in the classroom, what color 20 was the laser? 21 JUROR 031: 22 MS. ESCOBAR: 23 Red. Does anyone own or use a laser for work? 24 JUROR 028: 25 MS. ESCOBAR: We use a wide beam to read bar codes. What kind of store? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 68 of 223 70 1 JUROR: 2 MS. ESCOBAR: 3 JUROR: 4 MS. ESCOBAR: 5 JUROR: 6 THE COURT: 7 JUROR: 8 MS. ESCOBAR: 9 10 Retail, national department store. In my work, I use lasers for presentation. It is a cleaning company. Are you familiar with the business known as AMS, Moreland Corporation, or the old Home Depot? 12 MS. ESCOBAR: AMS sounds familiar, but the other two, no. Have you ever done any work for the business known as AMS? 14 JUROR: 15 THE COURT: No. Juror 024, what are you studying in school? 17 JUROR: 18 MS. ESCOBAR: 19 Juror 027, you work in Bakersfield? Yes. JUROR: 16 What color? Red. 11 13 Anyone else use lasers in any way? Arts, Liberal Arts. Where did you say you are going to school? 20 JUROR: West Hills Community College. 21 MS. ESCOBAR: 22 JUROR: 23 THE COURT: 24 JUROR: 25 MS. ESCOBAR: How many years of college? Two years, so far. What grade level? Sophomore. Thank you. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 69 of 223 71 1 THE COURT: 2 MS. BATEMAN: Ms. Bateman? Good morning, everyone. Again, my name 3 is Janet Bateman and my partner, Erin Snider, and I represent 4 Barry Bowser. 5 And I want to take a couple minutes of your time to 6 hear your honest opinions about your life experiences, and 7 there is no right or wrong answer. 8 9 Just trying to figure out if you are the right jurors for this jury. As Judge O'Neill explained, we all need to 10 serve, but you may not be the right juror for this jury, so I 11 just hope that you will be honest with me. 12 time. 13 14 I know a couple of you said you have used laser pointers in your work. 15 JUROR 031: 16 MS. BATEMAN: 17 JUROR: 18 How do you use it in your work? For presentations. Is it the same for you as well? I used it pointing at charts while I'm teaching. 19 MS. BATEMAN: 20 JUROR: 21 MS. BATEMAN: 22 JUROR 030: 23 JUROR: 24 MS. BATEMAN: 25 I appreciate your Has anyone else used a laser pointer? At school. Anybody else? Presentation. I use a bar code scanner. Okay. Have any of you heard anything about laser pointers in the news or from friends? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 70 of 223 72 1 2 JUROR: airplane. Know not to point a laser pointer at an Airplane. I didn't hear about helicopter. 3 JUROR: Same with me. 4 JUROR: I have as well. 5 MS. BATEMAN: 6 JUROR 031: 7 I remember seeing the beam coming up, I think it was green, but. 8 9 Yes. MS. BATEMAN: case? Do you remember what happened in that Does anybody remember any other details? 10 JUROR 031: 11 at law enforcement. No, just the fact that somebody shined it 12 MS. BATEMAN: Do you know what happened to the pilot? 13 JUROR 031: 14 MS. BATEMAN: 15 THE REPORTER: 16 MS. BATEMAN: No. Does anybody else? Please keep your voice up. Okay. How many people when you walked 17 in here and you saw the judge sitting up there in his robe 18 assumed he was the judge? 19 20 21 THE COURT: Everybody? We would have to have someone carried out of here if they didn't. MS. BATEMAN: And how many of you, when you saw all 22 of us sitting at the table in our suits looking really 23 intense, assumed that we were the lawyers? 24 25 Okay. And how many of you, when Mr. Bowser introduced himself as the defendant, assumed that he was guilty? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 71 of 223 73 1 Anybody? 2 Good. And does any of you have -- do any of you know why? 3 You know that it is based on our presumption of innocence? 4 Does anybody have an idea about why we have that? 5 anybody disagree with that presumption? 6 Does Okay. If the government brings charges against the person, 7 should the government bear the burden to prove all of those 8 charges against them? 9 10 Does anybody disagree with that or have any ideas or questions? 11 No? Now, Mr. Bowser, he has pled not guilty to this 12 charge. 13 of the story? 14 15 should testify? Okay. No. If he does not testify, what would you think? JUROR 027: One way or the other. It is entirely up to you. 20 MS. BATEMAN: 21 Let me ask another question. Anybody else have a feeling about that? Have any of you -- can 22 any of you think of an example where you might have done 23 something accidentally, but no one believed you? 24 have been blamed for something? 25 Do you have any idea? 18 19 How many of you feel like you want to hear his side Does anyone have a thought about whether or not he 16 17 Yes? You are nodding your head? Or you might Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 72 of 223 74 1 JUROR 025: I'm trying to think. 2 THE COURT: Are you willing to share with us? 3 JUROR 016: I was accused of breaking a wheel that I 4 was not at work that day. 5 MS. BATEMAN: You weren't at work that day. 6 seems like a pretty good alibi. 7 situation? That Were you able to explain the No? 8 Anybody else? Anything like that? No, okay. 9 Have any of you ever heard about a person being 10 accused of a crime or punished for something they didn't do? 11 Yeah. 12 JUROR 029: A lot. Just in criminal cases that you 13 read about or hear about on the news, that people have been 14 exonerated after X amount of time in prison and they were 15 sentenced and later cleared up because of DNA issues. 16 17 MS. BATEMAN: beyond DNA exoneration? Yes. Does anybody else have anything Okay. 18 Now, a lot of the government's witnesses are going to 19 be from different law enforcement agencies, and I know several 20 of you responded you have your own experiences and your family 21 have experiences in law enforcement. 22 And I'm just wondering if anybody thinks that an 23 officer's testimony would be more reliable than anybody else's 24 than a lay witness? 25 Nobody believes that? Just one moment. No? Okay. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 73 of 223 75 1 I think that's all. 2 THE COURT: 3 MS. ESCOBAR: Yes, your Honor. 4 MS. BATEMAN: Can we have a sidebar, your Honor? 5 Pass for cause, both sides? (The following proceedings were had at the sidebar, to 6 wit:) 7 8 Thank you very much. THE COURT: Yes. present, defendant is not. 9 MS. BATEMAN: 10 THE COURT: 11 MS. BATEMAN: We are at sidebar. Counsel are You waive? Yes. Go ahead. Our concern is with Juror 030. He is 12 doing work with the DOJ, which is the agency of prosecution. 13 He is doing work with Kern and Bakersfield police, where the 14 law enforcement witnesses are coming from. 15 that he has reviewed training records pertaining to some of 16 the witnesses' names that he recognized. 17 18 19 THE COURT: He might have. He has indicated I think he said he might have. MS. BATEMAN: Might have. He recognized the names. 20 I think at the very least, there is a pretty clear suggestion 21 that he has, you know, intimate knowledge and is part of the 22 law enforcement and prosecution team and agencies, not in this 23 case, but he is currently employed by all of the agencies 24 involved in this case. 25 MS. ESCOBAR: He said he could be fair, and I'm not Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 74 of 223 76 1 sure he works for the U.S. Department of Justice. 2 California Department of Justice, but it -- as a consultant. 3 THE COURT: 4 MS. PETTIGREW: 5 Maybe He works for -And he also said he hasn't done any training on the helicopter or the lasers. 6 THE COURT: 7 MS. ESCOBAR: Yes. No training in helicopter -- sounds 8 like he does -- is involved in training, but he has not been 9 involved in training of helicopters, air support units, 10 anything like that. 11 THE COURT: 12 His background and his current involvement in PORAC [sic]. 13 MS. BATEMAN: 14 THE COURT: 15 MS. ESCOBAR: 16 THE COURT: Could you tell me what PORAC is? That's -Private consulting firm. I can't remember. He said what it was. 17 He didn't say PORAC, but everyone else uses PORAC, and I 18 cannot remember all of the words in the acronym. 19 can't. 20 and he didn't use that term. I'm sorry, I But he did tell us, he mentioned it twice, I think, 21 His position with the -- and his association, both 22 past and present, don't automatically disqualify him, so there 23 would have to be something to indicate that he has some bias, 24 and he has not indicated. 25 indicate. There is no answer he has given to So for cause would be denied. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 75 of 223 77 1 Anything else? 2 MS. ESCOBAR: No, your Honor. 3 MS. SNIDER: Nothing further. 4 MS. BATEMAN: No, your Honor. 5 THE COURT: 6 7 Thank you. (The proceedings at the sidebar were concluded.) THE COURT: Ladies and gentlemen, we are now at the 8 peremptory challenge stage, and that's just a fancy legal term 9 for what it really means, and it means that the United States 10 Congress, by way of legislation, has given each side in a 11 criminal case a certain number of what we call "peremptory 12 challenges." 13 That means that the lawyers can thank and excuse you 14 for not -- and not give any reason whatsoever for doing it. 15 So if you are thanked and excused, it would probably not be 16 worth your while to try to figure out why. 17 There could be a million reasons, many of which are 18 not evident. There might be an obvious reason that you can 19 figure out in two seconds, but the bottom line is it should 20 not be some slight or an insult to you. 21 be and it is not. 22 negative way. It is not intended to So, please, I ask you not to take it in a 23 What is the instruction from the Jury Commissioner? 24 THE CLERK: Friday, after 5:00. 25 THE COURT: If you are thanked and excused, we are Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 76 of 223 78 1 asking you -- as soon as you are, you can get up and leave and 2 go back to your personal business -- but we are asking you to 3 call the 1-800 number, after 5:00 p.m., on Friday, for 4 instruction. 5 JUROR: Is that a holiday? 6 THE COURT: Are you closed? It would have to be Thursday. 7 guarantee you she is not coming in on Friday. 8 out for sure. 9 Any questions? All right. 11 MS. BATEMAN: Defense, on peremptory? Your Honor, we thank and excuse Juror 030. 13 THE COURT: 14 Let's see, do we have an answer? 15 THE CLERK: Yes. 16 THE COURT: Thursday, after 5:00. 17 JUROR: 18 THE COURT: 19 MS. ESCOBAR: 20 We will find Thank you. 10 12 I Thank you, Juror 030. If you would -- Thursday. Thank you. All right. Government? The government would thank and excuse Juror 009. 21 MS. BATEMAN: We thank and excuse Juror 031. 22 MS. ESCOBAR: Government thanks and excuses Juror 23 033. 24 THE COURT: 25 MS. BATEMAN: Thank you, Juror 033. We thank and excuse Juror 015. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 77 of 223 79 1 2 MS. ESCOBAR: Government thanks and excuses Juror 012. 3 THE COURT: 4 MS. BATEMAN: 5 THE COURT: 6 Government? 7 MS. ESCOBAR: Government thanks and excuses Juror 9 MS. BATEMAN: We thank and excuse Juror 017. 10 MS. ESCOBAR: Government thanks and excuses Juror 12 MS. BATEMAN: We thank and excuse Juror 003. 13 THE COURT: 14 MS. ESCOBAR: 8 11 15 MS. BATEMAN: 18 and excuse Juror 025. 19 THE COURT: 20 MS. BATEMAN: 21 THE COURT: 25 Government? Government thanks and excuses Juror 029. 17 24 Thank you. 024. THE COURT: 23 We thank and excuse Juror 022. 026. 16 22 Defense? Defense? Just one moment, your Honor. Okay. We thank Defense? We will pass, your Honor. All right. We are going to do some adjusting in seats here. Juror 002, would you please move over one seat. The Court designates you as Juror 1. Juror 004, move over two seats, you are second juror. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 78 of 223 80 1 Juror 005, if you would move over, you are Juror 3. 2 Juror 006, move over a couple, if you would, Juror 4. 3 Juror 007, couple over, number 5. 4 Juror 008, could I ask you to take the big walk and 5 number 6. 6 7 Juror 011, can I ask you to go into the first row and all the way to the end as 7. 8 9 Juror 032, can I ask you to move all the way to the end, please, as Juror 8. 10 11 Juror 014, if you would move next to him, please, as Juror 9. 12 Juror 016, if you would move all the way down as 10. 13 Juror 020, if you could please move into the second 14 15 16 17 18 19 20 row as Juror Number 11. Juror 021, if you could please move into the next seat as Juror 12. Juror 023, if you could move into the next seat as Alternate 1. And Juror 027, if you would please move into juror seat number Alternate 2. 21 One and one on alternates. 22 MS. ESCOBAR: 23 THE COURT: 24 MS. BATEMAN: 25 THE COURT: We pass, your Honor. Defense? We will pass, your Honor. Pass? Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 79 of 223 81 1 MS. BATEMAN: 2 THE COURT: 3 Yes. Is there any reason I should not swear this jury in? 4 MS. ESCOBAR: No, your Honor. 5 MS. BATEMAN: No, your Honor. 6 THE COURT: Ladies and gentlemen, before we swear the 7 14 of you in as this jury, is there any reason that you 8 believe that you should not be sworn in? 9 10 Anyone? I ask the 14 of you to please stand, raise your right hands and be sworn. 11 (The jury was duly impaneled and sworn.) 12 THE COURT: Please be seated. 13 Ladies and gentlemen, for everyone else, including 14 Juror 028, and everybody else, I want to thank you for being 15 here. 16 As I told you at the beginning, that it was not our 17 intent to waste your time. 18 you feel the same way. I don't believe we have. I hope 19 We are asking you to call the 800 number, after 20 5:00 p.m., on Thursday evening, for further instruction. 21 I thank you very much for your being here. 22 go. 23 24 25 And You are free to (The prospective jurors left the courtroom.) THE COURT: Ladies and gentlemen, we are now going to take a recess to get some things done with you, to accomplish Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 80 of 223 82 1 some things. 2 could turn around and look into the jury room. 3 would see a large room, large table, with chairs around it. 4 We have a couch back there. 5 microwave, a coffee machine, things that we hope will make you 6 comfortable during the breaks during this trial. 7 If there were a glass window behind you, you And there you We have a refrigerator, There are also a couple of restrooms back there so 8 you won't have to use the public restrooms while you are 9 sitting as jurors. 10 One of the things we are going to do is Samantha 11 Kantor is a lawyer that works with us in chambers, and she is 12 going to go into the jury room with you. 13 she is going to do is she is going to give you jury badges. 14 One of the things Now, we ask that you wear those badges prominently so 15 people can actually see them. 16 will, for instance, clip it to a belt loop. 17 you have something there. 18 From time to time, a juror It is clear that It is not clear what it is. We want them -- we want other people to know who you 19 are. 20 reason for that. 21 this case or any other, in your presence. 22 are a little bit more careful; when they see that you are a 23 juror, they are careful, and they don't talk about cases. 24 25 We want them to know you are jurors. And there is good We don't want people talking about any case, And usually people That said, we ask that you wear your jury badges in the courtroom, in the courthouse, and at a safe distance to Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 81 of 223 83 1 and from the courthouse as you leave and come back, because, 2 again, it is very normal for people to talk about what is on 3 their mind, and as they are coming into a courthouse, 4 oftentimes what is on their mind is a court case. 5 want you to have to listen and wonder, gee, are they talking 6 about this case or some other. 7 about any case. 8 9 So we don't We don't want them talking If somebody does, you have an obligation physically to move away and, if you can't, for instance, you are in an 10 elevator, you have an obligation to say, "Excuse me, I'm a 11 juror. 12 talk about that?" 13 Can you wait until I get off the elevator before you We have never had a case where somebody said, "Oh, 14 no, I have to talk about it right now, but if that were to 15 happen, I would need to know about it. 16 me about it. 17 You would need to tell Now, you cannot talk to each other, even though 18 that's the one thing I know you all have in common, is this 19 case, is the one thing you cannot talk to one another about 20 until it is time to deliberate. 21 So please don't. You can talk about anything else 22 you want to talk about, but just not this case or witnesses, 23 anything having to do with this case. 24 25 You may talk to employers. You may talk to spouses or other family members, close friends, to tell them that you Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 82 of 223 84 1 are on jury duty and where you are in case there is an 2 emergency where they have to call you, but, please, stop 3 there. 4 For instance, it will normally go like this. 5 tell me anything about the case, but is it criminal or civil?" 6 "Don't" I guarantee you if you answer that question, there 7 will be more questions, and I guarantee you that there won't 8 be more questions if you say, "I can't answer any questions. 9 The Judge ordered it. I'm following the order and end of the 10 story," and then make it the end of the story. 11 them. 12 Please don't look anything up. Don't tell A single word in a 13 dictionary, going on Google, Facebook, and all of those other 14 verbs that have been created in the last several years having 15 to do with a computer, don't do any of those things. 16 Don't drive by any place, don't walk by a laser store 17 and start looking. All of that is gathering evidence outside 18 the courtroom, which is strictly prohibited and could cause us 19 to have to try the case again. 20 So please, it's very important, when you are out of 21 the courtroom, don't do anything having to do with this case 22 at all. 23 We will be giving you notebooks at this break in the 24 jury room. If you want to take notes, take notes. 25 don't want to take notes, don't take notes. If you It is totally up Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 83 of 223 85 1 2 to you whether you do or don't. For those of you who do take notes, you may bring 3 those notes for your personal use into the jury room during 4 your deliberations. 5 destroyed without anyone ever having read those notes after 6 your jury service is done. 7 personal use during the trial. Those notes, if you take them, will be So they are truly for your own 8 Do you have any questions? 9 Lastly, I will tell you that from time to time, I 10 look at you during the trial, and there is a reason. 11 taking a survey of eyelids just to make sure we are all alert 12 and happy. 13 trying to look at me and get my attention, for instance, you 14 need a break. 15 I am I'm also looking over at you in case you are I will tell you a number of years ago, when I sat on 16 the superior court, I received a letter from a juror after the 17 case was over, and she thanked me for her service, actually, 18 which was odd, but appreciated. 19 But one of the things she said that made me almost 20 fall off my chair was she said, "I could tell when things were 21 important, because you looked over at me." 22 I would never try to convey what you should find 23 important as jurors. That would be judicial misconduct. 24 I was obviously unhappy that she took it that way, and I 25 shared it with the lawyers in the case. And Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 84 of 223 86 1 But the point is I'm not looking at you to try to 2 convince you of something. 3 saying anything ever to try to tell you what you should be 4 doing as jurors, whether I believe a witness, don't believe 5 them, I would never look at you and, "That one is good." 6 would never do that. 7 And during the trial, I'm never I It is improper. So if I'm looking over at you, understand the reason 8 I'm looking over at you is to see if you need me to call a 9 break or if I'm looking to make sure we are all alert. 10 That's all. 11 Any questions at all? 12 All right. When you get back, when we accomplish 13 these things -- and of course, you can use the restrooms, if 14 you need to, back there. 15 or 20 minutes. 16 When you -- it usually takes oh, 15 When you get back, I am going to read you the 17 preliminary jury instructions. 18 And then depending on what -- how long it does take, the 19 break -- because this break is dependent on you. 20 how long you need this break. 21 It will not take very long. You tell us When you are ready, just let us know through 22 Ms. Kantor, and then we will be ready for you, and we will 23 decide what we are going to do with the noon hour, take it 24 early or take it a little late. 25 We will figure that out. So now, Sammy, if you would go with the jury, go Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 85 of 223 87 1 through this door and turn to the right as soon as you go 2 through it, we will accomplish all the things we indicated we 3 will be accomplishing. 4 (The jury left the courtroom.) 5 THE COURT: 6 left the courtroom. 7 Let the record reflect that the jury has Any issues? MS. PETTIGREW: Your Honor, we have a blowup version 8 of an exhibit that I would like to be able to use during my 9 opening, if that's permissible and okay with defense counsel. 10 11 THE COURT: Just show it to defense counsel, and if there is an issue, let me know and I will come right back out. 12 Any other issues? 13 MS. BATEMAN: 14 THE COURT: 15 we are ready to go. 16 17 No, not yet. We will be in recess until they tell us (Recess) THE COURT: 18 are present. 19 instructions. Back on the record. Counsel and parties This won't take me very long, to read the 20 How long is your opening statement going to be? 21 MS. ESCOBAR: 22 MS. PETTIGREW: 23 THE COURT: 24 MS. SNIDER: 25 THE COURT: Brief, your Honor. Probably less than ten minutes. Okay. And what? Same. Okay. We are ready for the jury. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 86 of 223 88 1 2 MS. BATEMAN: One moment. see. 3 MS. PETTIGREW: 4 THE COURT: Is it blocking you? I'm not sure there is going to be a place 5 where one of us isn't blocked. 6 moving wherever you want to move? 7 MS. PETTIGREW: 8 MS. BATEMAN: 9 The board is -- I can't Do you feel comfortable in Who can't you see? Mr. Bowser can't see the first two columns. 10 THE COURT: How about pulling it over here? 11 MS. PETTIGREW: Okay. That's where we are going to 12 have it for the witness. 13 only, but I can move it over there, if that's better. 14 thought it would be easier for the jurors to be able to see it 15 during the opening. 16 THE COURT: 17 MS. ESCOBAR: 18 THE COURT: 19 MS. PETTIGREW: 20 THE COURT: 21 How about just blocking Peggy? Who is giving the opening? I am. If you are going to be blocked where Peggy can't see you, speak up. MS. PETTIGREW: 23 THE COURT: 25 We Do you care? 22 24 It is just here for the opening I will be here. Just over a little bit. (The following proceedings were had in the presence of the jury, to wit:) PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 87 of 223 89 1 THE COURT: Let the record reflect that the jury has 2 joined us. 3 going -- pardon my back. 4 Ladies and gentlemen, what I'm going to do is I'm What I'm going to do is I'm going to read you the 5 jury instructions. 6 the bench because of the easel that one of the counsel is 7 going to be using during the opening statement. 8 9 I'm going to do it from here instead of on As soon as I'm done with this, we will move into the opening statements of counsel. They will not last long, but 10 they will probably take us up to the noon hour and, at that 11 point, we will take the noon recess and call the first witness 12 at the end of the noon recess. 13 Ladies and gentlemen, you are now the jury in this 14 case, and I need to take a few minutes to tell you about your 15 duties as jurors and give you some preliminary instructions. 16 You will be getting the rest of the jury instructions, in 17 other words, the rest of the law, at the end of the case. 18 When you deliberate, it will be your duty to weigh 19 and to evaluate all the evidence received in this case and, in 20 that process, to decide the facts. 21 them, you must apply the law as I give it to you whether you 22 agree with the law or not. 23 To the facts as you find You must decide the case solely on the evidence and 24 the law before you and you must not be influenced by any 25 personal likes, dislikes, opinions, prejudices or sympathies. PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 88 of 223 90 1 Please do not take anything I may say during the trial of what 2 I think of the evidence or what your verdict should be since 3 that is entirely up to you and not up to me. 4 I have already indicated to you what the charge is in 5 this case. 6 what the facts are consists of the sworn testimony of any 7 witness, the exhibits which are received into evidence, and 8 any facts to which the parties agree. 9 The evidence that you are to consider in deciding If the parties agree to a fact, I will make it very 10 clear to you, you won't have to guess, so you will know if 11 there is an agreement. 12 You may consider only the testimony and exhibits 13 received in evidence. 14 and you may not consider them in deciding what the facts are. 15 The following things are not evidence Questions, statements, objections and arguments by 16 the lawyers are not evidence. 17 witnesses. 18 understand the answers of a witness, the lawyer's question 19 itself are not evidence. 20 The lawyers themselves are not Although you must consider a lawyer's questions to Similarly, what the lawyers will say in their opening 21 statements and in their closing arguments at the end of the 22 case and at other times is intended to help you interpret the 23 evidence, but it is not itself evidence. 24 remember them differ from the way the lawyers state them, your 25 memory of those facts controls. If the facts as you PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 89 of 223 91 1 Any testimony that I have excluded or stricken or 2 instructed you to disregard is not evidence. 3 some evidence may be admitted only for a limited purpose. 4 When I instruct you to consider a certain evidence in a 5 limited way, you must do so and must consider -- and must not 6 consider such evidence for any other purpose. 7 In addition, Anything you may see or hear when the Court is not in 8 session is not evidence, even if what you see or hear is done 9 or said by one of the parties or one of the witnesses. You 10 must decide the case solely on the evidence received at the 11 trial. 12 Evidence may be direct or it may be circumstantial. 13 Direct evidence is direct proof of a fact, such as testimony 14 by a witness about what that particular witness personally saw 15 or heard or did. 16 Circumstantial evidence is indirect evidence, that 17 is, it is proof of one or more facts from which one can find 18 another fact. 19 You are to consider both direct and circumstantial 20 evidence. 21 makes no distinction between the weight to be given to either 22 direct or circumstantial evidence. 23 to decide how much weight to give to any evidence. 24 25 Either can be used to prove any fact. The law It is for you, the jury, There are rules of evidence that control what can be received in evidence. When a lawyer asks a question or offers PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 90 of 223 92 1 an exhibit into evidence and a lawyer on the other side thinks 2 it is not permitted by the rules of evidence, that lawyer may 3 object. 4 answered or the exhibit received. 5 the question cannot be answered or the exhibit cannot be 6 received. 7 If I overrule the objection, the question may be If I sustain the objection, Whenever I sustain an objection to a question, you 8 must ignore the question and not guess what the answer would 9 have been had I allowed it to be answered. 10 Sometimes I may order that evidence be stricken from 11 the record and that you disregard or ignore the evidence. 12 That means when you are deciding the case, you must not 13 consider that evidence that I told you to disregard. 14 Just so you know procedurally how that happens, it 15 usually happens, a question is asked of a witness and just at 16 the same time it is being answered, the objection comes from 17 the other side and I agree with the objection; in other words, 18 I sustain the objection, and say that's not permitted under 19 the rules, but the answer has already come in. 20 That's when I will look at you and say that the 21 question that was asked, that objection is sustained and you 22 must not consider that answer if you heard it. 23 In deciding facts in this case, you may have to 24 decide whether testimony is to be believed and which testimony 25 not to believe. You may believe everything a witness says or PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 91 of 223 93 1 part of it or none of it. 2 In considering the testimony of any witness, you may 3 take into account the witness' opportunity and ability to see 4 or hear or know the things testified to; that witness' memory; 5 the witness' manner while testifying; the witness' interest in 6 the outcome of the case, if any; the witness' bias or 7 prejudice, if any; whether other evidence contradicted the 8 witness' testimony; the reasonableness of the witness' 9 testimony in light of all the evidence, and any other factors 10 that bear on believability. 11 The weight of the evidence as to a fact does not 12 necessarily depend on the number of witnesses who testify 13 about it. 14 were and how much weight you think that that testimony 15 deserves. 16 What is important is how believable the witnesses From time to time during the trial, it may become 17 necessary for me to take up legal matters with the attorneys 18 privately, either by having a conference at the bench, or when 19 necessary, by calling a recess for the jury. 20 We will do that -- we will do what we can to keep the 21 number and length of those conferences to a minimum. 22 not always grant an attorney's request for a conference. 23 And I want to make something very clear. 24 happens, we are not trying to hide things from you. 25 not what we are doing. I may When that That's PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 92 of 223 94 1 What we are doing is we are following the law. The 2 law says that legal issues are mine and factual issues are the 3 jury's. 4 outside of your presence because they are not and should not 5 concern you. 6 any other reason except to follow the law. And when, at all possible, we take legal issues 7 And so that's why we do it, and it is not for Please keep an open mind throughout the trial and do 8 not decide what the verdict should be until you and your 9 fellow jurors have completed your deliberations at the end of 10 the case. 11 exposed to anything else outside the courtroom and you cannot 12 seek anything outside of the courtroom. 13 all your decisions must be made on the evidence that comes 14 from this courtroom. 15 I have already indicated to you that you cannot be All the evidence and Because you will receive all the evidence and legal 16 instructions you properly may consider to return a verdict, do 17 not read, watch or listen to any news or media accounts or 18 commentary about the case or anything to do with it. 19 Now, we never know when the press is interested. 20 Some cases, you are wondering why they are. 21 are wondering why they aren't, but it doesn't make any 22 difference ultimately because it is not my business. 23 This is an open courtroom. Some cases, you They can come in. They 24 don't have to come in. It is totally up to them, but if there 25 is coverage in this case, please remember you can't be a part PRELIMINARY JURY INSTRUCTIONS Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 93 of 223 95 1 of it or watch or listen to it. 2 are in the car driving home and for instance and it comes on, 3 remember go listen to some music. 4 So if, for instance, if you At the end of the trial, you will have to make your 5 decision based on what you recall of the evidence. 6 not have a written transcript of the trial, so I urge you to 7 pay close attention to the testimony as it is given. 8 already indicated to you what you can and can't do with regard 9 to note-taking. 10 11 12 13 Totally up to you. You will I have And now I tell you that the next phase of the trial will now begin. Each side may make an opening statement, and my understanding is that each side will. The opening statement is not evidence. It is simply 14 an outline to help you understand what that party expects the 15 evidence will show. 16 opening statement, but as I indicated, they are going to. 17 government will then present evidence and counsel for the 18 defense may cross-examine. 19 witnesses brought in by the government. 20 A party is not required to make an The That means ask questions of the Then if the defendant chooses to offer evidence, they 21 may, and counsel for the government may cross-examine their 22 witnesses. 23 After the evidence has been presented, I will 24 instruct you on the rest of the law in the case and then the 25 attorneys for each side will make closing arguments and after GOVERNMENT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 94 of 223 96 1 then, it will be your case to deliberate. 2 Any questions, ladies and gentlemen? 3 All right. 4 We are ready for the opening statement of government. 5 MS. PETTIGREW: Thank you, your Honor. 6 Good morning. Good afternoon, almost. We are here 7 today, as the Judge explained earlier, because the defendant 8 is charged with a violation of Title 18 section 39A of United 9 States Code, which prohibits knowingly aiming a laser pointer 10 11 at an aircraft or in the flight of an aircraft. On September 12, 2014, shortly after midnight, the 12 Kern County sheriff officers were flying in a helicopter, much 13 like the one that you see here. 14 helicopter. 15 the helicopter's top. 16 assist ground units. 17 This is an identical The only difference is the numbers on the back of They were responding to a call to As they did so, the pilot was suddenly struck in his 18 left eye through the open door by a green light. 19 immediately dropped the helicopter and started turning around 20 because they were very close to Meadows Field Airport in an 21 area called the "critical zone," which is where other flights, 22 commercial flights and military flights, approach the airport 23 as they are landing. 24 25 He As he was turning the aircraft around, he was struck a second time directly in the cockpit, which illuminated the GOVERNMENT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 95 of 223 97 1 entire cockpit. 2 He had already flipped down his night vision goggles, 3 but he still had to look away from it, and when he looked up 4 again, the light was still there. 5 However, we know that it was the defendant that did 6 this because they were able to trace the laser light down to 7 the middle of a vacant industrial area -- this was after 8 midnight -- where they saw one lone man, later identified as 9 the defendant, Barry Bowser, standing there, and he was 10 standing, looking at the helicopter. 11 We also know this because when the Bakersfield police 12 arrived, the defendant admitted that he had pointed the laser 13 at the helicopter. 14 are going to hear testimony from eyewitnesses, such as the law 15 enforcement officers. 16 who will explain a little bit more about laser pointers. 17 will hear audio from -- that was taken from interviews with 18 the defendant and with the radios talking from the helicopter 19 to the ground units with the Bakersfield police. 20 Now, over the course of this trial, you You will hear from an expert witness You will also learn the facts by listening to the 21 testimony of Deputy Kevin Austin. 22 Sheriff's Office, and he was the pilot of Air-1 that was 23 struck. 24 25 You He is with the Kern County He will tell you that shortly after midnight, as they were departing the airplane, they were traveling about 500 GOVERNMENT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 96 of 223 98 1 feet off the ground, which is a normal level that they travel 2 at, and going approximately a little over 100 miles per hour 3 if they were on the ground. 4 measured a little differently, but that's about the same. 5 And that he was suddenly startled when they were They are in the air, so it is 6 about two miles from the airport by the green light, and 7 that's what caused him to divert, because he knew he was in 8 this critical area. 9 He will tell you that he flipped down his night 10 vision goggles, and in doing so, he was again struck a second 11 time. 12 time or if the second time was sustained because he had to 13 look away from the second time, and when he looked up again 14 the light was still there, but that also allowed him and his 15 partner in the air, in the helicopter, who is Tactical Flight 16 Officer Jeremy Storar, who is called a TFO, they were able to 17 see where the defendant was standing in the middle of this 18 industrial area. 19 And he cannot actually tell if he was struck a third And the pilot was able to not only start orbiting 20 around that area so they could keep an eye on the defendant, 21 but he also pointed something called a "night sun," which you 22 will look at the picture of the helicopter, which you will see 23 on your screens later, is kind of a big spotlight on the side 24 that they use in searching and assisting the ground unit. 25 You will also hear from Deputy Jeremy Storar, who is GOVERNMENT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 97 of 223 99 1 a Tactical Flight Officer, TFO. 2 binoculars, his night vision goggles, and something called a 3 "FLIR" unit, which is kind of that round, bowling-ball-type 4 thing on the front of the aircraft which allows him to see 5 imaging from the ground to locate the defendant and also to be 6 able to see him quite clearly enough to identify him later. 7 He is the one that uses Deputy Storar was the one that was relaying what was 8 going on to the Bakersfield Police Department on the ground. 9 They used, first, the general channel, which kind of said, 10 "Hey, this is what's going on over here in this industrial 11 area near Sillect Avenue and Arrow. 12 Channel 4, which is one they are using on one-on-one 13 conversations, so that not all the cars are hearing it. 14 And then later on, You will be able to hear this communication and also 15 you will hear Deputy Storar talk about how they watched the 16 defendant and as soon as the night phone was on him, he went 17 under a big awning on the property. 18 He didn't come out for a few minutes until a dark SUV 19 drove up to the gate. 20 locked, he came out and spoke to one of the occupants of the 21 vehicle. 22 pilot and the Tactical Flight Officer saw. 23 Because the property is gated and They exchanged something under the fence which the And then they spoke for a few more minutes, and the 24 defendant walked back under the awning. He could also see 25 there was a motor home located under the awning, and he will GOVERNMENT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 98 of 223 100 1 show that to you as well. 2 3 You will be able to hear these recordings with the BPD officers yourself. 4 You will also hear from an expert witness who will 5 explain that having multiple laser strikes is an indication 6 that somebody is tracking an aircraft with a laser pointer. 7 In addition, you are going to hear from an executive 8 with the company that was located on the property where the 9 awning and the motor home and the laser strike occurred, and 10 she will tell you that she was allowing the defendant, Barry 11 Bowser, to stay on the property as a favor, I guess, for a 12 friend because he hadn't been able to find a place to park the 13 motor home, and that they had let him do that because they 14 thought it would, you know, add kind of extra security by 15 having somebody in this vacated area. 16 Finally, you are going to hear from Bakersfield 17 Police Officer Eric Celedon. 18 to Deputy Storar on the dispatch radio. 19 how he came up to the locked gate where the SUV had previously 20 been after he had driven away. 21 He was the one that was speaking And he will tell you That the defendant came over, opened the gate for 22 them. That he interviewed him. That he spoke to the 23 defendant and he told him that he had pointed the laser 24 pointer at the helicopter, and then he had given the laser 25 pointer to the person in the SUV, his friend, when he drove DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 99 of 223 101 1 up, so he no longer had the laser pointer there. 2 You will also hear his own admission, because there 3 is a tape of the Bakersfield police officer's interview with 4 the defendant at that time. 5 And I ask when you are in the jury room deliberating 6 later on, that you remember what the defendant said on that 7 tape, which was right after the laser strike happened and 8 right when everything was fresh in his mind. 9 When Officer Celedon asked the defendant if he knew 10 why the police were there, he responded unequivocally that it 11 was because he had a laser pointer and he pointed it at a 12 helicopter. Thank you. 13 THE COURT: 14 MS. SNIDER: Ms. Snider. Good morning. Ladies and gentlemen of 15 the jury, this is a case about a man who was playing with a 16 cheap toy laser pointer with his trusted companion, his dog. 17 Now, this man, without intending to, hit a helicopter with the 18 beam of his laser pointer. 19 was simply an accident. 20 This was a chance occurrence. Now, the government has already told you that we are 21 all here today because of something that happened on 22 September 12, 2014. 23 It So let's go back to that day. Now, the government indicated at this time, Barry was 24 living on a commercial lot and he was working as a sort of 25 security guard there, and he was living there with his dog, DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 100 of 223 102 1 whose name is Bowser. 2 And on September 12, 2014, it was late, it was around 3 midnight, and he and Bowser were sitting around their RV. 4 was a borrowed RV that was parked on this commercial lot, they 5 were sitting around it, and they were bored. 6 a lot going on that night. 7 It They didn't have Now, earlier in the day, Barry had found a laser 8 pointer, just the kind you can buy online for a few dollars, 9 just a cheap little thing. And as he and Bowser are sitting 10 around their RV and they are bored, Barry decides he is going 11 to put some new batteries in this laser pointer to see if it 12 even works. 13 And sure enough, it does. And so he and Bowser, they start playing with the 14 laser pointer. 15 chases after the light. 16 but Bowser loses interest pretty quickly and he goes off and 17 gets a drink of water. 18 Barry points it on the ground and Bowser This goes on for a couple of minutes, So Barry, he just keeps playing with the laser 19 pointer by himself. 20 commercial area and there is not a lot of people around. 21 is late at night. 22 posts and some transmission towers that kind of hold the power 23 lines. 24 25 Now, remember he is out in this It There is some radio antennas and some lamp And as Barry is playing with this laser pointer, he starts to point it up. And as he is doing this, he hears DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 101 of 223 103 1 something. 2 he hears it, he turns toward the source of the noise. 3 a helicopter. 4 He doesn't see anything, he just hears it. And as It was The next thing that Barry knew, that helicopter was 5 veering down out of the sky toward him. It came right up 6 until it was hovering right above him. The spotlight came 7 down, and that helicopter remained there for maybe five, ten 8 minutes, with the spotlight down, shining on that light where 9 Barry was staying, until the Bakersfield Police Department 10 arrived. 11 And when the officers arrived, they came to the gate 12 of the property and they had no way in. 13 was fenced in and there was a locked gate. 14 out. 15 He stepped outside, and he was promptly arrested. 16 He greeted the officers there. The entire property But Barry walked He unlocked the gate. Now, as the government has indicated, Mr. Barry -- 17 excuse me, Mr. Bowser has been charged with a violation of 18 Title 18 United States Code section 39A. 19 with aiming the beam of a laser pointer at an aircraft. 20 He is being charged And as you can probably gather, there is a lot that's 21 not in dispute. 22 Barry doesn't dispute that there was an aircraft, there was a 23 helicopter. 24 probably got hit by a laser. 25 Barry doesn't dispute that there was a laser. And Barry doesn't dispute that that helicopter What Barry does dispute is whether he knowingly aimed DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 102 of 223 104 1 his laser pointer at the helicopter. 2 that you, as the jurors, are going to have to decide. 3 And that is the question Now, the Judge is going to instruct you that an act 4 is done knowingly if it is done intentionally and if it is not 5 the result of a mistake or an accident. 6 Over the course of the next couple of days, you are 7 going to hear that Barry, he spoke to law enforcement officers 8 regarding this incident on at least three occasions. 9 And as you heard from the government, the very first 10 time he spoke to law enforcement was the night that he was 11 arrested. 12 Department. 13 He spoke with an officer of the Bakersfield Police And on that night, Barry readily admitted that he was 14 the person that had the laser, and he tried to explain to the 15 officer that he was playing with the laser when the helicopter 16 passed by. 17 18 19 You are also going to hear that Barry spoke with an agent of the Federal Bureau of Investigation. MS. ESCOBAR: 20 would like to hear. 21 THE COURT: Your Honor, objection. If the Court I know what the objection is. The 22 objection is sustained because it is hearsay if you are 23 talking about a statement -- 24 MS. ESCOBAR: 25 THE COURT: Yes. -- made by him to another person. DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 103 of 223 105 1 MS. SNIDER: What you are not going to hear is any 2 evidence that Barry ever told any law enforcement officer that 3 he intentionally was aiming his laser pointer at the 4 helicopter. 5 You are also not going to hear any evidence that the 6 helicopter was struck repeatedly or for a long period of time. 7 The pilot is going to testify that there were two strikes. 8 That the first strike was only a fraction of a second and the 9 second strike was just two, maybe three seconds. 10 You are also not going to hear any evidence that 11 Barry continued to use the laser pointer after the helicopter 12 started to respond. 13 out of the sky, Barry stopped what he was doing. 14 off that laser pointer. 15 As soon as that helicopter descended down He turned Now, the government bears the burden to prove beyond 16 a reasonable doubt that Barry is guilty of this offense, and 17 that's to say that the government has to present evidence that 18 firmly convinces you that Barry knowingly aimed the laser 19 pointer at the aircraft. 20 And it is going to be up to you to decide whether the 21 government has satisfied its burden in this case. 22 going to be up to you to decide whether in fact Barry 23 knowingly aimed the laser pointer at the aircraft. 24 accidentally, not mistakenly, not recklessly, but knowingly. 25 So it is Not Now, at the conclusion of the evidence, we are going DEFENDANT'S OPENING STATEMENT Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 104 of 223 106 1 to have an opportunity to come back and talk to you again. 2 And at that time, we are going to ask that you find that the 3 government failed to satisfy its burden in this case, and we 4 are going to ask that you return a verdict of not guilty. 5 Thank you. 6 THE COURT: All right, ladies and gentlemen, just so 7 I can see you all -- and we are going to move the easel during 8 the break -- but we are now going to take the noon recess. 9 is almost noon. It We are going to take the recess until 1:15. 10 That should give everybody time to eat, if you want, relax if 11 you want, and ultimately be back in the jury room, ready to 12 go. 13 There is no prohibition of your pairing up, going 14 individually, whatever you want to do for lunch is just fine, 15 but remember, no matter where you go, no matter who you are 16 with, please don't talk in any way about this case, and we 17 will see you in the jury room, ready to go at 1:15. 18 19 Thank you. (The jury left the courtroom.) 20 21 22 23 24 25 THE COURT: Jury has left the courtroom. 1:15. (The lunch recess was taken.) See you at Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 105 of 223 107 1 2 AFTERNOON SESSION 1:15 p.m. 3 4 THE COURT: Back on the record. defendant are present. 5 MS. BATEMAN: Counsel and Ready for the jury? We have a couple of issues. The first 6 is that we saw, on our way out to the lunch break, Deputy 7 Austin, and he was wearing a green jumpsuit and on top of 8 that, a bulletproof vest. 9 wear the vest on the stand. 10 MS. ESCOBAR: 11 MS. PETTIGREW: 12 THE COURT: 13 MS. SNIDER: And it would be our request he not It is not a bulletproof vest. It is a flight outfit. Okay. We are ready for the jury. Your Honor, we have one other issue. 14 appears that the government is going to be calling Tamara 15 Fleming. 16 was a victim of some unrelated theft ring that occurred 17 simultaneously or after the laser incident. 18 It And it is our understanding that she was involved or We just want to ensure that that's not coming in and 19 that her testimony will be limited to Mr. Bowser living on the 20 property. 21 MS. ESCOBAR: In the case-in-chief, if it is brought 22 up somehow that there is another way for it to come in on 23 rebuttal, but we are not bringing it up in the case-in-chief. 24 THE COURT: 25 MS. ESCOBAR: Okay. Ready for the jury. Your Honor, I don't know if we need to Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 106 of 223 108 1 formally do this. 2 than our expert, but we move to exclude. 3 ordered it before trial. 4 5 THE COURT: MS. BATEMAN: Gonzalez. THE COURT: 9 MS. ESCOBAR: 10 THE COURT: Your Honor, our investigator is Victor No objection? No, your Honor. Fine. (The following proceedings were had in the presence of the 12 jury, to wit:) 13 THE COURT: 14 Everybody is responsible, of He is on our witness list. 8 11 I did. I know the Court course, for your own witnesses, making sure they are not in. 6 7 I don't see any other witnesses here other has joined us. We are still on the record and the jury Ladies and gentlemen, any issues at all? 15 Ready for the first witness, Ms. Pettigrew. 16 MS. PETTIGREW: Thank you, your Honor. The United 17 States calls Kern County Sheriff Deputy Kevin Austin to the 18 stand. 19 20 THE COURT: Sir, would you come forward to this area of the courtroom, please, raise your right hand and be sworn. 21 KEVIN AUSTIN, 22 called as a witness on behalf of the Government, having been 23 first duly sworn, testified as follows: 24 THE COURT: Please take the witness stand right here 25 and then tell us who you are. KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 107 of 223 109 1 2 THE WITNESS: My name is Deputy Kevin Austin. first name is K-e-v-i-n. 3 It's Last is A-u-s-t-i-n. DIRECT EXAMINATION 4 BY MS. PETTIGREW: 5 Q. Good afternoon, Deputy Austin. 6 A. Good afternoon. 7 Q. Can you please tell me what your occupation is. 8 A. Deputy Sheriff with Kern County Sheriff's Department. 9 Q. How long have you held the position with the Kern County 10 Sheriff's Office? 11 A. A little over five years. 12 Q. What positions have you held as a Kern County Sheriff? 13 A. I worked in Detentions for a year and a half, Patrol for 14 14, and for the last ten, almost 11 years in the Air Support. 15 Q. 16 Support? 17 A. 18 that, I was a Tactical Flight Officer, which is a fancy name 19 for observer. 20 Q. 21 the Air Unit? 22 A. 23 school that's put on by the Airborne Law Enforcement 24 Association every year. 25 amounts of training that starts with the equipment that we use What type of positions have you had as a member of the Air Right now, I'm currently a command pilot, and prior to What type of training have you had to become a member of Training for the Tactical Flight Officer, we attend a In that school, there is various KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 108 of 223 110 1 all the way to the legal aspects of using the equipment, 2 tactics and procedures. 3 Q. 4 flying for the sheriff's county? 5 A. As far as a pilot? 6 Q. Yes. 7 A. We do all of our pilot training in-house. 8 sheriff, I'm required to have at least two years of 9 training -- I'm sorry, two years of patrol. And what type of training have you had in regards to As a deputy And we start out 10 in the unit as a Tactical Flight Officer, and you slowly move 11 into being a pilot. 12 Q. 13 do in that scenario? 14 A. Yes. 15 Q. Can you explain what that training was? 16 A. It was a basic course that was presented by the ALEA, 17 Airborne Law Enforcement Association. 18 were shown different colors of lasers, the damage they can 19 cause to the eyes, and pretty much how to avoid it if you are 20 ever struck with the laser. 21 Q. 22 with laser strikes? 23 A. Many times. 24 Q. And have any of them had physical effects on your body? 25 And have you had any training in laser strikes and what to In the training, we In your time with the Air Unit, have you had experience MS. BATEMAN: Objection, your Honor, relevance. KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 109 of 223 111 1 THE COURT: Sustained, due to the breadth. 2 BY MS. PETTIGREW: 3 Q. 4 the eyes with a laser? 5 A. Yes. 6 Q. How many times? 7 A. Numerous. 8 Q. Can you give us an estimate of how many times? 9 10 While you were in the field, have you ever been struck in MS. BATEMAN: Objection, your Honor. irrelevant to this case. 11 THE COURT: 12 MS. PETTIGREW: 13 I'm not seeing the relevance either. It goes to his experience with laser strikes, your Honor, and the ability to identify them. 14 THE COURT: The objection is sustained. 15 a more specific question. 16 BY MS. PETTIGREW: 17 Q. 18 colors have the lasers been? You can ask With the laser strikes that you have experienced, what 19 MS. BATEMAN: 20 THE COURT: 21 This is Objection, your Honor, same grounds. No. I think that that is -- this is getting more specific, so it is overruled. 22 THE WITNESS: Red and green. 23 MS. BATEMAN: Objection, your Honor. There is -- I 24 don't understand how Deputy Austin's prior experience with 25 other lasers of varying colors has any bearing on his KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 110 of 223 112 1 experience in this case. 2 3 THE COURT: recognizing what it is immediately and his reaction to it. 4 5 Because it goes to the issue of his MS. BATEMAN: The question before him wasn't whether recognized what it was. 6 THE COURT: It was a foundational question of whether 7 or not he was also familiar with green, and as I understand 8 it, green is the issue in this case. 9 BY MS. PETTIGREW: So it is overruled. 10 Q. In your experience, does being struck by a green laser 11 have a different effect on you than being struck with a red 12 laser? 13 A. It does. 14 Q. What is the difference? 15 A. The green is usually brighter in intensity. 16 Q. What is your vision? 17 A. Right now, it is 20/20. 18 Q. Are you required to have your vision checked on a regular 19 basis in order to be a pilot? 20 A. Every year, yes. 21 Q. Do you have any supervisory experience with the Kern 22 County Sheriff's Office? 23 A. Somewhat. 24 Q. Have you ever been responsible for training anybody in the 25 Air Unit? KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 111 of 223 113 1 A. Yes. 2 Q. What kind of training have you given them? 3 A. I am the Tactical Flight Officer Coordinator. 4 we take a patrol deputy, put them in a helicopter, and we are 5 side by side. 6 is use of the equipment, procedures on the radio, and 7 expectation in case of emergency. 8 Q. 9 of a laser strike? Basically, We train them how to be an observer, and that Does any of that training include what to do in the case 10 A. Yes. 11 Q. And how do you train in that regard? 12 A. We train everyone the same way, the way I was trained. 13 And if struck by a laser, we try to pinpoint the source. 14 we are -- continue to be illuminated by the laser, we try not 15 to look at it. 16 If That's a little bit difficult at times. We do use night vision goggles, and that is one way 17 to filter out the laser light, is by wearing the night vision 18 goggles. 19 Q. 20 day-to-day basis, when you are in the air, what are your 21 primary responsibilities as the pilot? 22 A. My primary responsibility is safety of the aircraft. 23 Q. How do you do that? 24 A. By scanning the skies to avoid a collision with another 25 airplane, scanning my instruments to make sure nothing is Now, to just kind of transition into what you to do a KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 112 of 223 114 1 overheating. All that combined is primarily the safety of the 2 aircraft. 3 Q. 4 general mission of the helicopter? 5 A. 6 officer safety for officers on the ground and aid or assisting 7 in apprehending suspects. 8 Q. 9 you do that using the helicopter? And when you are flying on a day-to-day basis, what is the The general mission is law enforcement, which provides And can you just describe in a little greater detail how 10 A. We fly at 500 feet. 11 As an example, if a call was to come in, an armed robbery, if 12 before we arrive on scene, we have information that the 13 suspect has fled, if we are given a vehicle description or a 14 physical description of the suspect and clothing, we can orbit 15 at 500 feet. 16 That's usually our cruising altitude. We cover a lot of ground, and that's how we assist 17 the officers. We have a better chance of finding the suspect 18 before the officers on the ground actually find them. 19 Q. 20 when there is a laser strike. 21 changes? 22 A. 23 laser, whatever our priority was before then is now second 24 priority. 25 laser also has the ability to hit other aircraft in the area Now, you spoke a little bit about how the mission changes Can you just explain why that It changes because at the time that we are struck with a Because this subject that is hitting us with a KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 113 of 223 115 1 with lasers. 2 So in order for us to apprehend them, we have to stop 3 or not respond to the call that we were going to originally, 4 and deal with the subject with the laser. 5 Q. Is that particularly true closer to airports? 6 A. Yes. 7 Q. Now, you also said that you are responsible for training 8 the Tactical Flight Officers, and you have been one yourself. 9 Can you explain the responsibilities of the Tactical Flight 10 Officer? 11 A. 12 a better description, is the brains of the operation. 13 talk on the radios to the ground units. 14 the ground units. 15 looking for, whether it be a suspect or a lost person. 16 are the hub of our operations. The Tactical Flight Officer, during our flights, for just 17 They They coordinate with They advise the pilot what we may be They The pilot generally doesn't talk to anyone except for 18 other aircraft and air traffic control. It is the Tactical 19 Flight Officer's job to coordinate with all the law 20 enforcement agencies that we work with. 21 Q. 22 laser strike? 23 A. The TFO's duties change? 24 Q. Yes. 25 A. Not necessarily. And do his or her duties also change when there has been a KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 114 of 223 116 1 Q. Do they assist in any way in trying to locate the suspect? 2 A. Exactly. 3 Q. And let's get into the aircraft a little bit. 4 Can you please turn to Exhibit 1-a and then also look 5 at 1-c in your exhibit book there. 6 A. Okay. 7 Q. 1-a, do you recognize this? 8 A. Yes. 9 Q. What is it? 10 A. It is a picture of Kern County Sheriff's helicopter, 11 4-9er-7 Echo. 12 A-Plus, manufactured by -- A-Plus, manufactured by Bell. 13 Q. 14 Exhibit 1-c and let me know if you recognize that. 15 A. I do. 16 Q. That you just described? 17 A. Yes. 18 19 I'm looking at 1-a. That's the tail number. And when you have the book open, can you also look at It is a picture of the same helicopter. MS. PETTIGREW: THE COURT: 21 MS. BATEMAN: 22 THE COURT: 24 25 Your Honor, I would like to admit Government's Exhibits 1-a and 1-c. 20 23 And it is a OH-58 Any objection? No objection, your Honor. Received. (Government's Exhibits 1-a and 1-c were received.) MS. PETTIGREW: Your Honor, I also have the blown-up version that you previously saw during the opening. May I KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 115 of 223 117 1 publish it to the jury? 2 THE COURT: 3 MS. PETTIGREW: 4 THE COURT: 5 MS. BATEMAN: 6 THE COURT: 7 BY MS. PETTIGREW: 8 Q. It is a blown-up version of? 1-a. Any objection? No objection. All right. Now, looking at -- 9 May I also publish 1-a on the Elmo, your Honor? 10 THE COURT: Sure. 11 MS. PETTIGREW: Thank you. 12 BY MS. PETTIGREW: 13 Q. 14 that are on this helicopter? 15 A. 16 little round gimbal off the bottom of the nose that is our 17 FLIR imager, or infrared imager. Looking at 1-a, can you point out some of the features Yes. 18 I will start from the nose. At the nose, you see a As you go back from the nose, you see a black, looks 19 like a blade. 20 in case we fly into a wire. 21 hope. 22 That's actually a wire cutter that assists us It actually cuts the wire, we Going back from there to the first cross tube of the 23 landing gear, right in front of that cross tube on the belly 24 is a navigation light. 25 picture. It is pretty hard to see in the KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 116 of 223 118 1 In the exhibit here, it is difficult to see, but 2 there is a corresponding light on the other side of the 3 helicopter. 4 the right is green. 5 another flashing light that flashes white and red in a strobe. 6 The light on the left side is red. The light on And in between those two lights is As you go back further to the next cross tube, you 7 will see a little round light that is a landing light. 8 is two of those side by side. 9 There And as you go further back beyond the rear cross 10 tube, you see a big light. 11 spotlight. 12 That is our 30 million candlepower From there, you proceed to the back. The helicopter 13 goes up, and that is our tail boom. 14 strength beam for our tail rotor shaft. 15 horizontal fins, if that's what you want to call them, 16 sticking out from the sides of the tail boom. 17 That incorporates the And there is also And as you go further back, you have a vertical fin, 18 or stabilizer, and the tail rotor. And at the tail rotor, 19 there is also a white and red flashing strobe light, along 20 with a constant white light, on the very tip of the tail. 21 Q. 22 collision when you are flying? 23 A. They are supposed to. 24 Q. Are they -- if you are flying like you said at 500 feet, 25 are they visible from the ground? And do the lights that you mentioned, do they help avoid KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 117 of 223 119 1 A. 2 3 Yes. MS. BATEMAN: Objection, your Honor. Calls for speculation. 4 THE COURT: Sustained as phrased. 5 BY MS. PETTIGREW: 6 Q. 7 ground flying at about 500 feet? 8 A. Yes, I have, and I have seen our own helicopters. 9 Q. And can you see the lights that you describe when you are Have you ever seen one of these helicopters from the 10 on the ground? 11 A. Absolutely. 12 Q. Now, is there any reflective material on these 13 helicopters? 14 A. 15 below the rotor mast -- it reflects. 16 17 I believe the badge on the very top -- would be right down MS. PETTIGREW: I'm going to publish 1-c. 18 THE COURT: 19 THE WITNESS: It is a decal. If it is all right with the Court, This must be a better angle. Go ahead. Much better. 20 BY MS. PETTIGREW: 21 Q. 22 reflective on the helicopter? 23 A. 24 right below the main rotors, in front of the 4-9er-7 Echo 25 number, and right below that on the fuselage is a bigger badge Can you first, again, describe the materials that are There is a reflective decal. It is on the engine cowling KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 118 of 223 120 1 which is also reflective. 2 Q. 3 it would be 11th through 12th of 2014? 4 A. Yes. 5 Q. And were you working at midnight and thereafter? 6 A. Yes. 7 Q. In what capacity were you working that evening? 8 A. I was the command pilot of the sheriff's helicopter. 9 Q. And did the helicopter that you were flying have a name Now, were you working on the night of September -- I guess 10 that you referred to as? 11 A. Yes. 12 Q. What is that? 13 A. Air-1. 14 Q. The photos that we have seen of this helicopter, is it 15 similar to the helicopter that you were flying, Air-1? 16 A. Yes. 17 Q. And what was your mission on that evening? 18 A. Our mission on that evening, like any other evening, is to 19 assist patrol. 20 call was to come out. 21 Q. Did you receive any type of calls shortly after midnight? 22 A. Yes. 23 Q. What was that call? 24 A. One in particular was a call with the Bakersfield Police 25 Department. We are also search and rescue if that type of The call information that was given to us was KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 119 of 223 121 1 there was a naked man armed with a handgun in the southern end 2 of the city. 3 Q. 4 received this call? 5 A. 6 sheriff's hangar. 7 Q. And did you respond to this call? 8 A. Yes. 9 Q. Can you explain what happened on the way to the call? 10 A. Yes. 11 airport and I flew directly over Freeway 99. 12 that is because it is long. 13 lights up very well, and I use the freeway in case an engine 14 goes out, I have a place to land the helicopter. 15 Q. 16 Exhibit 2-a. 17 A. Yes, it would. 18 Q. Do you recognize the area of the photograph? 19 A. Yes, I recognize it. 20 portion of the Kern County Meadows Field Airport and our 21 sheriff's headquarters and hangar, and to the west of that 22 would be Freeway 99. 23 Q. 24 were flying over at the time you just spoke of? 25 A. And where were you approximately at the time that you We were at the Meadows Field Airport, actually at the I proceeded in a southerly direction from the The reason for There is ambient light that I would like you to take a look real quick at Government's That would be a photo with a map? At the very top of the map is a And does this map accurately reflect the area that you Yes. KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 120 of 223 122 1 2 MS. PETTIGREW: Your Honor, I would like to admit Government's Exhibit 2-a. 3 THE COURT: 4 MS. BATEMAN: 5 THE COURT: 6 Any objection? No objection. Received. (Government's Exhibit 2-a was received.) 7 MS. PETTIGREW: I would also request to publish it to 8 the jury and also put a blowup version which is marked as 9 2-a-1. 10 11 THE COURT: do that. 12 Anything that comes in evidence, you can No request required. MS. PETTIGREW: Thank you, your Honor. 13 BY MS. PETTIGREW: 14 Q. 15 using the green marker, where the -- where you took off that 16 evening from the airport? 17 A. The green marker? 18 Q. I'm sorry. 19 green arrow? 20 A. Explain. 21 Q. About where you took off that evening. 22 A. It would be the red dot identified as Kern County 23 Sheriff's Headquarters. 24 Q. I believe if you touch that. 25 A. Do you want it bigger? Now, looking at this map, can you point out on the map Just touch the screen and it should give it a You want me to point? KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 121 of 223 123 1 Q. That should be fine. 2 A. Okay. 3 Q. Now, as you are flying to this call, you said you were 4 going south. 5 A. 500 feet. 6 Q. Approximately what was your speed? 7 A. My ground speed was between 100 and 110 miles per hour. 8 Q. Did you have the doors of the helicopter off like it 9 showed in the photo? At what altitude were you flying? 10 A. Yes. 11 Q. Why was that? 12 A. In September, it is hot. 13 in the helicopter. 14 Q. And as you were flying south, did anything happen? 15 A. Yes. 16 Q. What happened? 17 A. A few miles south of the airport and 99, a green laser 18 struck the helicopter on the left side. 19 Q. And were you hit by the laser as well? 20 A. I was. 21 Q. Where were you hit? 22 A. The whole left side of my body plus my left eye. 23 Q. And did you feel any effects from the hit of the laser? 24 A. Yes. 25 Q. Can you show us on the map approximately where you were We do not have air conditioning KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 122 of 223 124 1 when you were struck by the laser? 2 A. It is kind of blurry and hard to see. 3 Q. Would it be easier to look at the blowup map? 4 A. No. 5 Q. Try to make it a little larger. 6 A. Okay. 7 approximate location where the helicopter was when it was 8 struck by the laser. 9 Q. And what effects did you feel at that time? 10 A. At the time, I didn't feel any physical pain, but it 11 caused like a flash blindness, similar to a camera flash going 12 off. 13 around in your vision, and it was much like that. 14 Q. 15 laser? 16 A. 17 power of the helicopter, brought it into a flare where I bring 18 the nose up. I'm trying to get my ground reference. Here we go. (Indicating.) That was the The camera flash goes off, you see a little dot floating And so what action did you take when you were hit by the It startled me, so the first thing I did was reduce the 19 It actually slows the helicopter down. And then turned to the left toward the origin of the 20 laser with the intent of trying to catch the person with the 21 laser. 22 Q. When you did that, did you stay at the 500 foot altitude? 23 A. On the initial turn, we stayed at 500. 24 leveled out of the turn, I dropped the nose just slightly to 25 go into a shallow dive, and it actually allows me to pick up As soon as I KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 123 of 223 125 1 my forward air speed. 2 able to climb back up to 500, and it was almost instantaneous. 3 Q. What happened next? 4 A. I received another strike from the laser at the nose of 5 the aircraft. 6 Q. Can you describe it? 7 A. It was green. 8 could see directly to the laser, I could see the green dot. 9 Once I had my forward air speed, I was Where the first one hit me broadside, I This time, hitting the front of the aircraft, the 10 windscreen, or windshield, diffused the light and it filled 11 the whole cabin, the interior cabin up with green light. 12 Q. 13 helicopter, did you take any other actions at that time to try 14 to protect yourself from the laser strike? 15 A. 16 vision goggles, were flipped up. 17 laser strike, I put the goggles down because I use that as a 18 defense in case I look into the light again. 19 Q. 20 approximate area where you -- hold on. 21 Now, as you were making the turn and adjusting the I did. Before the first strike hit me, my NVG, my night As soon as I saw the first Now, looking at the map again, can you point out the Can you point out the approximate place where you 22 were struck by the second laser strike? 23 A. 24 I can cheat and use the red dot, but that looks like the 25 abandoned warehouse or warehouse in renovation that the Can you blow it up just a little bit more? Okay. I know KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 124 of 223 126 1 suspect was standing in front of. 2 Q. That's approximately where the second strike occurred? 3 A. Yes, first and second. 4 Q. The first one was where you put the first arrow; is that 5 correct? 6 A. 7 strike would be in between the two arrows. 8 directly overhead yet. 9 Q. Well -- The first strike was at the first arrow. Okay. The second We weren't And how long was it between the first strike and 10 the second strike, would you say? 11 A. I'm going to estimate five seconds, maybe. 12 Q. And that's happening while you are adjusting the 13 helicopter and turning it around? 14 A. Yes. 15 Q. And so how long did the second strike last? 16 A. A few seconds. 17 Q. And when the second strike occurred, did you continue to 18 look at the strike? 19 A. No. 20 Q. What did you do? 21 A. Although I had night vision goggles on, I know it is going 22 to protect my eyesight to some extent, I looked to the left 23 side of the aircraft so I would not look directly into the 24 laser. 25 Q. Maybe less. At some point, did you look back up towards the laser? KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 125 of 223 127 1 A. I did. 2 Q. Approximately how long did you look away? 3 A. Maybe a second. 4 Q. And when you looked back, was there still light being 5 reflected throughout the cockpit? 6 A. 7 illuminated by the green. 8 Q. 9 laser? Yeah. The interior of the helicopter was still And at that time, were you looking for the source of the 10 A. Yes. 11 Q. And did you find it? 12 A. I did. 13 Q. At what point during the strikes did you find the source? 14 A. Immediately upon the first strike. 15 Q. And what did you do when you saw the source? 16 A. I told Deputy Storar, who is my Tactical Flight Officer, 17 that there was a person about an eighth of a mile to the east 18 of us that had just struck me with a laser. 19 the first strike. 20 He did not see I turned the aircraft because I could still see the 21 person that had the laser. The second strike came up, and I 22 could still see the person. I just basically followed the 23 laser beam to the person. 24 Q. 25 person? I could still see them. And what could you see when you were looking at that KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 126 of 223 128 1 A. I could see someone standing on the west side of a large 2 warehouse, and I believe it is a parking lot that has some 3 trees or shrubs, but it is also illuminated with a parking 4 light or some other ambient lighting around it. 5 see the silhouette of a person standing right out in the open. 6 Q. Okay. 7 A. Okay. 8 Q. Do you recognize the area reflected in this photograph? 9 A. I do. 10 Q. How do you recognize it? 11 A. The area that's surrounded by the yellow is the warehouse 12 that was under renovation and where the suspect was standing. 13 14 But I could Can you please look at Government's Exhibit 2-b. MS. PETTIGREW: Your Honor, the government would like to move Government's Exhibit 2-b, to admit it. 15 MS. BATEMAN: 16 THE COURT: 17 No objection. Received. (Government's Exhibit 2-b was received.) 18 MS. PETTIGREW: And I would like to publish it on the 19 Elmo as well as, if there is no objection, put up the blown-up 20 version. 21 BY MS. PETTIGREW: 22 Q. Now, is this the area where you saw the suspect standing? 23 A. Yes. 24 Q. What could you see? 25 A. I could definitely see the outline of a person. I can KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 127 of 223 129 1 mark on the map here where that person was standing. 2 Q. That would be fine. 3 A. The property is surrounded by a chain link fence. 4 southwest corner of the property, there was a double gate. 5 Inside that double gate was a short driveway, which is 6 surrounded on both sides by trees. 7 laser was standing right there out in the open, between the 8 trees and the opening past the driveway. 9 Q. On the And the person with the What could you tell about this person from what you could 10 see? 11 A. Appeared to be a male adult. 12 Q. And could you tell which direction the person was facing? 13 A. Once -- during the laser strike or following the laser 14 strike? 15 Q. 16 you said you saw a silhouette of a person there. 17 you do? 18 A. 19 green laser to the silhouette, we made a turn, was hit a 20 subsequent time. 21 surrounded in yellow. 22 Well, let's just go back. So following the laser strike, So what did After seeing the silhouette and being able to follow the We orbited around this property that's I don't believe we had the spotlight on him yet. I 23 believe Deputy Storar had him on the FLIR imager and we were 24 looking at him with the FLIR, which is going to show up on a 25 screen about half the size of this monitor here. And it shows KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 128 of 223 130 1 up in black and white. 2 and white screen. 3 Q. 4 you already described on the helicopter to help you view the 5 person standing below you? 6 A. Yes. 7 Q. What was that? 8 A. We have the 30 million candlepower spotlight. 9 Storar has two hand controllers. 10 White is hot, so it looks like a black And at any point, did you use any of the other things that Deputy One runs the FLIR. The other runs the spotlight. 11 In the event that he needs to see something on the 12 ground closer with binoculars, he can hand the control of the 13 spotlight over to the pilot. 14 didn't hand the controller to me; there is actually a control 15 on the stick that I fly with that can control the direction of 16 the light. 17 So that's what he did. He So as I had direction of the light, I lit the suspect 18 up. Deputy Storar was able to see him through the binoculars. 19 Q. 20 after the second strike or before it? 21 A. After the second. 22 Q. What was the helicopter doing at this time? 23 A. We were in a orbit. 24 Q. And when you lit up the suspect with the light, what 25 happened then? And chronologically, when was this happening? Was this KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 129 of 223 131 1 A. It just, a matter of moments after illuminating him with a 2 light, he was -- he turned and began walking toward an awning 3 that was located on the southwest corner of the building. 4 Q. 5 you able to see better what he looked like? 6 A. 7 better. 8 Q. Were you able to see what direction he was facing? 9 A. Yes. 10 Q. What direction was that? 11 A. Well, by the time we illuminated him with the spotlight, 12 he was walking to the east, toward that awning at the 13 southwest corner of the building. 14 Q. 15 you able to actually see a laser yourself? 16 A. The actual laser pointer or the beam? 17 Q. The actual laser pointer? 18 A. No. 19 Q. Did you see any indication that the person you saw had the 20 laser pointer? 21 A. 22 being held directly in front of his body, midsection, between 23 the neck and lower torso. 24 Q. And was -- could you tell if it was with one arm or two? 25 A. I couldn't tell that. And when you had first put the light on the suspect, were Well, better than just the silhouette, but not much And you said you followed the source of the light. Were It appeared to me with the silhouette that the laser was KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 130 of 223 132 1 Q. So you said that you went into an orbit and you said that 2 the defendant had gone under an awning. 3 A. 4 Storar notified the Bakersfield Police Department we had just 5 been hit with a laser and asked for their assistance. 6 Q. 7 it take to get assistance from the Bakersfield Police 8 Department? 9 A. I'm going to say between ten to 12 minutes. 10 Q. What did you do during that time? 11 A. Well, after we notified the city police of what we had and 12 where we were, we continued orbiting. 13 underneath the awning, and we both lost eyesight of him or 14 sight, period. What did you do then? I continued flying the helicopter in orbit and Deputy And approximately how much time from the laser strike did The suspect had walked Even using the FLIR, we couldn't see him. 15 We orbited around the property, trying to make sure 16 no one else was trying to get off the property, run or hide, 17 and it was a few minutes after orbiting, a black SUV pulled up 18 to that double gate at the southwest corner of the property. 19 Q. 20 pulled up? 21 A. 22 shining through the double gates. 23 exited, walked in front of the SUV and stood at the double 24 gates, and a subject underneath the awning walked out to that 25 driver. And were you able to observe what happened when the SUV Yes. The vehicle pulled up. Headlights were still on, The driver of the SUV KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 131 of 223 133 1 Q. Were you able to tell if that was the same person you had 2 seen walk underneath the awning? 3 A. Yes. 4 Q. Did you use the spotlight to follow that person? 5 A. Deputy Storar used the spotlight. 6 of the spotlight over to me. 7 with his binoculars, and he also used the FLIR imager to look 8 at the suspect. 9 Q. What happened then? 10 A. Since I had a better vision or better view of the suspect 11 on the FLIR screen, I could tell by his body build and just 12 the way he carried himself, it was the same person that I saw 13 in front after the first and second laser strike. 14 Q. Where did he go? 15 A. I walked out to the gate and met the driver of the SUV at 16 the gate. 17 Q. Did he open the gate? 18 A. He did not. 19 Q. Did he unlock the gate? 20 A. It did not appear to be unlocked. 21 Q. What did you observe him and the driver do? 22 A. Well, I saw the suspect bend down toward the bottom of the 23 gate. 24 passed an object. 25 soup bowl or stainless steel doggy bowl, but it looked like Again, gave the control He again looked at the suspect The driver at the same time did the same, and they Just with the naked eye, it looked like a KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 132 of 223 134 1 the driver passed it to the guy on the other side of the gate. 2 They passed it underneath the gate. 3 Q. 4 what was happening at the gate? 5 A. I did. 6 Q. What was that? 7 A. Normally, when we are struck with lasers, the people don't 8 like to get caught, and in my experience, they will pass off 9 evidence, such as a laser pointer, to someone else to get rid Did you have any particular reason to pay attention to 10 of it. And I was afraid that the exchange under the gate was 11 in fact the suspect handing the laser off to the driver of the 12 SUV. 13 Q. Were you able to confirm that that happened or not? 14 A. No. 15 Q. So after the exchange at the gate, what happened next? 16 A. The driver of the SUV eventually entered the SUV and drove 17 southbound from the property. 18 of the gate walked back and again disappeared from our view 19 underneath the awning. 20 Q. What did you do when he disappeared back under the awning? 21 A. Basically, stayed in an orbit and kept a view of the whole 22 property to again make sure no one tried to escape the 23 property or hide. 24 police to show up. 25 Q. The suspect on the other side We did that while waiting for the city And did anything else happen before the city police showed KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 133 of 223 135 1 up? 2 A. 3 recall anything else. 4 Q. 5 this exchange did the police arrive? 6 A. Just a couple of minutes. 7 Q. And where did they arrive in regards to where everything 8 else that you have talked about was? 9 A. They arrived at the southwest corner, at the double gate. 10 Q. And that's the same gate that the SUV had been at -- 11 A. Yes. 12 Q. -- a few minutes earlier? 13 A. After I want to say four to five minutes, I didn't know if 14 the officers were going to attempt to cut the lock or the 15 chain that was around the fence, that was securing the fence. He again disappeared back underneath the awning. I don't So you were in orbit and so approximately how long after What did you observe next? 16 As we kept a visual on the property, and wondering 17 what the officers were going to do, eventually, the suspect 18 came back out from underneath the awning and walked westbound, 19 back out to the double gates, where he appeared to be talking 20 to officers standing on the other side. 21 Q. And did he open the gate for the officers? 22 A. It appeared he did. 23 Q. Did you see where the officers went after that? 24 A. After a few moments of speaking with him, the officers and 25 the suspect walked back up to the awning and disappeared KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 134 of 223 136 1 underneath the awning. 2 And it is between that time and before the officers 3 just arrived, we realized there was a -- an RV that was parked 4 underneath the awning. 5 Q. 6 other person inside this area or in the vicinity? 7 A. No. 8 Q. When did you leave? 9 A. I believe Deputy Storar took one of the officers over to a Now, at any time during this whole period, did you see any 10 secure channel, or we call it "car-to-car." 11 can talk with clear text. 12 It is where you You don't have to use codes. Storar explained what he saw, that he was certain 13 that that subject that they had detained was the subject with 14 the laser. 15 officer what our observations were, we left, and they were 16 still on scene with the suspect. 17 Q. 18 the eye with the laser? 19 A. 20 eye, especially on the outside corner, appeared to be 21 irritated, like sand or maybe an eyelash had broke off and 22 entered my eye. 23 Q. 24 laser strikes. 25 A. And after a few minutes of explaining to the Now, did you experience any aftereffects from being hit in Other than the flash blindness, it seemed like my left And you said you have been -- you've experienced other Yes. Has this ever happened on any of those? KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 135 of 223 137 1 Q. Had the same sand feeling? 2 A. Yes. 3 Q. How long did that last? 4 A. I never really gauged it, but by the time the shift is 5 over, which this shift was -- or this incident was toward the 6 end of our shift, it wasn't affecting me when I left, so 30, 7 40 minutes. 8 MS. PETTIGREW: 9 THE COURT: Your Honor, may I have one moment? Sure. 10 BY MS. PETTIGREW: 11 Q. 12 it hit near the nose. 13 do you know? 14 A. It did. 15 Q. In looking at photo 2-b -- actually, back up real quick. 16 Can you just show us real quick where the awning is that you 17 saw the defendant walk underneath. 18 A. That's good. 19 Q. How about I undo it and why don't you show me now where 20 the awning is. 21 A. (Witness indicating.) 22 Q. And can you also point out where the double gate is on the 23 property and where the SUV and the Bakersfield police arrived? 24 A. (Witness indicating.) 25 Q. Can you point out on this where Sillect Avenue is? Just to go back real quick to the second strike, you said Did it actually hit the cockpit window, KEVIN AUSTIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 136 of 223 138 1 A. Sillect would be just to the east, runs north and south, 2 with a gradual curve to the northwest. 3 Q. Do you know what address this is? 4 A. I don't. 5 after the investigation, but I know it was in, I believe, the 6 3400 block of Sillect. 7 Q. 8 gate on? 9 A. On Arrow. 10 Q. Where is the critical airspace in relation to Meadows 11 Airfield, Meadows Field Airport? 12 A. 13 occupying the tower, there is a five-mile radius around the 14 tower. I don't even know if it was the correct address What street did the officers and the SUV arrive at the Meadows Field, during the day, when there is personnel It is considered Class D. 15 At 11:00 o'clock, the tower closes. That air space 16 turns from Class D to Class E, as in "echo." 17 a five-mile radius around the airport or the tower. 18 Q. 19 critical? 20 A. 21 Meadows Field is maybe a mile, maybe not that far, to the east 22 of this warehouse. 23 Q. And 3-0, what is that? 24 A. 3-0, that's a compass heading of the runway. 25 Q. That's a approach where the aircraft would approach? And it still is And that's the part that you said is particularly It is critical because the approach to 3-0 right at KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 137 of 223 139 1 A. Yes. 2 Q. Did this whole thing occur in the Special Aircraft 3 Jurisdiction of the United States? 4 A. It did. 5 MS. PETTIGREW: 6 THE COURT: 7 MS. BATEMAN: 8 9 Pass the witness to the defense. Cross-examination? Yes, your Honor. CROSS-EXAMINATION BY MS. BATEMAN: 10 Q. Good afternoon, Deputy Austin. 11 A. Good afternoon. 12 Q. How are you? 13 A. Good. 14 Q. You reported that you experienced some effects on your 15 vision, correct? 16 A. Yes. 17 Q. And you described flash blindness, like a camera flash? 18 A. Correct. 19 Q. Okay. 20 A. No. 21 Q. And you didn't have to land the helicopter as a result of 22 this experience? 23 A. No. 24 Q. And you were able to continue working this night after the 25 Bakersfield Police Department had secured the suspect? You never had to see a doctor after this incident? KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 138 of 223 140 1 A. Yes. 2 Q. You moved on to other missions? 3 A. Yes. 4 Q. And it is my understanding, you never reported the event 5 to air traffic control? 6 A. Air traffic control was closed when this event occurred. 7 Q. Oh, okay. 8 A. Normally we would, if they were open, but they were 9 closed. 10 Q. Gotcha. Understood. 11 Thank you for explaining that. Now, I know you completed a Laser Beam Questionnaire 12 for the Federal -- for the FAA, and we are going to get to 13 that in a minute, but did you ever make any other report of 14 this incident besides the FAA questionnaire? 15 A. I did not. 16 Q. Okay. 17 A. I believe it was either the following night or maybe the 18 night, the second night. 19 Q. Okay. 20 A. Yes. 21 Q. And the incident was still fresh in your mind? 22 A. Yes. 23 Q. Okay. 24 an official FAA Laser Beam Questionnaire, I assume? 25 A. When did you complete the report for the FAA? So within a day or two? Is this -- you know, this is an official -- it was It was. KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 139 of 223 141 1 Q. Did you review it after you wrote it? 2 A. I did. 3 Q. And you wanted to make sure it was complete and accurate? 4 A. Yes. 5 Q. And you would agree that it is important to be complete 6 and accurate in your reporting? 7 A. Yes. 8 Q. Okay. 9 correct? Because other people need to rely on your reports, 10 A. Correct. 11 Q. Including your superiors, I assume? 12 A. Just the FAA. 13 Q. The FAA. 14 A. And prosecutors, correct. 15 Q. Okay. 16 was not illuminated, did you not? 17 A. 18 second strike, it was. 19 Q. But that's not what you told the FAA? 20 A. There is not a lot of space on the FAA form to fill out, 21 to do a complete narrative. 22 Q. 23 binder there? 24 A. I do. 25 Q. Would you please turn to the Defendant's Exhibit C. And prosecutors? On your report, you told the FAA that the cockpit On the first strike, it was not illuminated. On the Would you please turn to -- do you have a Defense exhibit KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 140 of 223 142 1 A. Are you talking about the CD? 2 Q. There is a tab. 3 A. I'm sorry. 4 Q. Yes. 5 Questionnaire? 6 A. Yes. 7 Q. And is this -- do you want to take a moment to review -- 8 is this the questionnaire that you completed? 9 A. It looks like it is mine, a copy of mine. 10 Q. If you could please turn to the third page. 11 the section that says, "Laser Information." 12 about three, I suppose, questions down. 13 "Cockpit Illumination. C, as in "Charles"? Do you have before you a Laser Beam Exposure At the top, And if you look It says: Did the laser beam enter 14 through the windscreen and illuminate any part of the 15 cockpit?" 16 A. Yes. 17 Q. What did you say? 18 A. I answered "No." 19 Q. Thank you. 20 incident; that's what your testimony is? 21 A. Yes. 22 Q. Okay. 23 almost nine months later, is that the cockpit was illuminated? 24 A. Say that again? 25 Q. Your testimony today on direct examination, nine months Now, you wrote this within a day or two of the But your testimony on direct examination now, KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 141 of 223 143 1 after the incident, is that the cockpit was illuminated? 2 A. It was illuminated. 3 Q. After you have had an opportunity to review your report, 4 does that change your testimony? 5 A. 6 not illuminate the interior. 7 Q. 8 second strike? 9 A. Regardless of what this report says, the first strike did The second strike did. Does your report differentiate between the first and If -- I can't go into specifics. 10 on it. 11 it illuminated the cockpit, it did. 12 strike. 13 There is not enough area I'm not going to say something that didn't happen. If It happened on the second The first strike, it hit me from the broadside, so it 14 didn't. Deputy Storar didn't even see the first strike. He 15 did see the second strike. 16 Q. 17 the second strike? 18 A. No. 19 Q. It sounds like from my understanding of the evidence so 20 far, the second strike was the more serious of the two 21 strikes? 22 A. I wouldn't put more weight on the other. 23 Q. It was the longer of the two strikes? 24 A. You could say that. 25 Q. You said Deputy Storar didn't even notice the first strike Did you complete a second questionnaire with respect to KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 142 of 223 144 1 that was just a fraction of a second? 2 A. That's right. 3 Q. And so when you were filling out this questionnaire, is it 4 your testimony that you were only reporting on the first 5 fraction of a second strike? 6 A. Yes. 7 Q. Doesn't it seem important to you that the longer strike, 8 the strike that was in your testimony two to three seconds 9 long, isn't that important information that needs to be 10 reported? 11 A. 12 one that actually struck the aircraft first versus the second 13 one, they both hit the aircraft. 14 the interior. 15 Q. Even when the question is, "Was the cockpit illuminated?" 16 A. Yes. 17 Q. So it is your estimation that the second strike was two 18 seconds; is that correct? 19 A. It was a couple seconds, if that. 20 Q. Could have been less? 21 A. Could have been. 22 Q. Okay. 23 began to respond to the source, and you turned and flew 24 towards where you believe the source was, correct? 25 A. If you are asking me is it more important to report the Yes. The second one illuminated I went off the first one, off the first strike. Now, after you experienced the first flash and you KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 143 of 223 145 1 Q. And during that time of your response after you 2 experienced the second flash, the second strike, you never saw 3 the laser beam again, correct? 4 A. That's correct. 5 Q. Okay. 6 location, you were hovering or orbiting? 7 A. Orbiting. 8 Q. But the whole time that you were orbiting, it was a tight 9 orbit, you were able to keep your vision, keep your sight on And when you were able to pinpoint the suspect's 10 the location, correct? 11 A. Correct. 12 Q. And in that ten to 12 minutes, you never saw the suspect 13 attempt to leave the property, did you? 14 A. I did not. 15 Q. You just saw him walk under the awning, back out to the 16 gate to meet the driver of the SUV, back under the awning, 17 back to the gate to meet the Bakersfield officers? 18 A. Correct. 19 Q. You didn't take note of where the SUV went after it left? 20 A. I tried to follow it. 21 south, and reached a cross street and went to the west. 22 I know it left the area to the I either had to choose between it or keep Deputy 23 Storar or the warehouse, so I ignored it after I saw it drive 24 to the west. 25 Q. Okay. Did you report the SUV's trajectory over the KEVIN AUSTIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 144 of 223 146 1 dispatch? 2 A. I didn't. 3 Q. Do you know if Deputy Storar did? 4 A. I believe he did. 5 Q. Now, you are familiar with this area where Mr. Bowser was 6 found, correct? 7 A. Correct. 8 Q. And we know the 99 freeway is nearby, correct? 9 A. Correct. 10 Q. And the airport is how many miles away? 11 A. Maybe one and a half, two miles to the north. 12 Q. Do you know there is a CHP office, I think, nearby, 13 probably close to the freeway? 14 A. Yes, on Buck Owens Avenue. 15 Q. And you know there are large antenna around, like 16 communication antennas? 17 A. 18 I'm flying at 500 feet, it would only be a hundred, 150 feet 19 below me. That would be a large antenna to me. 20 Q. Okay. Are there any of those in the area? 21 A. No. 22 Q. Are there any that are perhaps not as large as what large 23 is to you? 24 residence? 25 A. It depends on what "large" is. Sure. Large, to me, would be if Larger than what would be on, let's say, a KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 145 of 223 147 1 Q. And are those -- do any of those antenna have red lights 2 on them? 3 A. 4 on it. I believe the one at the CHP office does have a red light 5 6 MS. BATEMAN: for now. Just one moment, please. That's all Thank you. 7 THE COURT: 8 MS. PETTIGREW: 9 Any redirect? Yes, your Honor. REDIRECT EXAMINATION 10 BY MS. PETTIGREW: 11 Q. 12 you know what the intent of filling that form out is for? 13 A. Yes. 14 Q. What is that? 15 A. The intent is to give just the basic information to the 16 FAA about when, where, and color of the laser strike. 17 Q. So would you characterize it as a statistical purpose? 18 A. Absolutely. 19 Q. Would you say that it is intended for criminal 20 investigation or prosecution? 21 A. No. 22 Q. Now, do you know who has the duty to report this as the 23 investigating agency? 24 A. 25 is my duty to report it. Now, the FAA form that the defense was talking about, do Well, if I'm the subject of being struck with a laser, it We would report it to the FBI in our KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 146 of 223 148 1 jurisdiction, which gets passed on to the FAA. 2 Q. And did you do that? 3 A. We did. 4 Q. The FAA form that you spoke about that you said is more 5 statistical in nature, is that something they use to track 6 laser incidents nationwide? 7 A. Yes. 8 Q. Now, you said that you were approximately one and a half 9 to two miles -- I'm sorry, that Meadows Field Airport was 10 approximately one and a half to two miles north of where the 11 laser strike occurred; is that correct? 12 A. That's correct. 13 Q. So is that in the critical airspace that you spoke about 14 earlier? 15 A. It is. 16 Q. And when you were negotiating the turn between -- after 17 the first strike, but before the second strike, is that 18 something that you can turn the helicopter like quickly in one 19 spot? 20 A. No. 21 Q. So approximately how long does it take to turn around 22 going at the speed that you were going? 23 A. Are you talking about time or distance covered? 24 Q. Talking more distance covered. 25 A. The ideal, if you could, almost bring the helicopter to, KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 147 of 223 149 1 not to a complete stop, but close to it. 2 make a quicker turn that way. 3 You can maneuver and The faster you are, the wider your turn is going to 4 be. I didn't want to go wide. 5 almost stopped and get the nose pointed toward the laser 6 source. 7 I wanted to get the helicopter So I would say covered maybe an eighth to a quarter 8 of a mile before the nose was actually turned. 9 Q. And you said there is a tower at the CHP office that may 10 have a red light on it. Can you estimate how tall that tower 11 is? 12 A. 13 red lightening bolt. 14 than a red light. 15 150, 175 feet. 16 Q. 17 approximately where it was? 18 A. Yes. 19 Q. And do you need the further away map or the closer map to 20 do that? 21 A. Further away. 22 Q. Okay. 23 screen for you. 24 office tower is? 25 A. I believe it is a microwave tower. Okay. I know it has like a Maybe that's what I'm thinking of other I want to say it is no taller than, say, Would you be able to show us on one of the maps I'm going to put Government's Exhibit 2-a on the Can you point out approximately where the CHP It is going to be northwest from the warehouse and still a KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 148 of 223 150 1 bit -- I'm going to say it is right in here, in this area 2 (Indicating) just south of this canal. 3 Q. 4 the laser? 5 A. It is. 6 Q. In filling out the FAA report, you said that you didn't 7 put in that it had illuminated the cockpit because there was 8 two strikes, and it is not meant to be an investigative 9 report; is that -- And is that tower north of where you were first struck by 10 A. That's correct. 11 Q. -- correct, what you were saying? 12 A. Yes. 13 Q. But the laser, the second time, it did hit the cockpit 14 window, didn't it? 15 A. It did. 16 Q. And it did illuminate the cockpit? 17 A. Yes. 18 It also got Deputy Storar's attention. MS. BATEMAN: Leading. 19 BY MS. PETTIGREW: 20 Q. Did it illuminate the cockpit? 21 A. It did. 22 Q. Did it strike the cockpit window from a perpendicular 23 angle? 24 MS. BATEMAN: 25 THE COURT: Objection, leading. Sustained. At what angle. KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 149 of 223 151 1 BY MS. PETTIGREW: 2 Q. 3 window? 4 A. 5 a clock, it being the 12:00 o'clock position, the second laser 6 strike would have been between the 11:00 and 12:00 o'clock as 7 the helicopter's nose turned. At what angle did the second laser strike hit the cockpit From -- if you were to use the nose of the helicopter like 8 9 MS. PETTIGREW: May I have a moment, your Honor? BY MS. PETTIGREW: 10 Q. Who was the initial investigative agency for the laser 11 incident? 12 A. That would be the Bakersfield Police Department. 13 Q. And did the Bakersfield Police Department have the 14 responsibility of writing up a report about the incident? 15 A. Yes. 16 17 MS. BATEMAN: It calls for facts not in evidence and speculation. 18 19 Objection, your Honor. THE COURT: The objection is overruled on those grounds. 20 MS. BATEMAN: 21 THE COURT: The witness lacks personal knowledge. Sustained. 22 BY MS. PETTIGREW: 23 Q. 24 responsible for writing a report after this laser strike? 25 A. Do you know if the Bakersfield Police Department is I did not see the report myself; however, with the suspect KEVIN AUSTIN - RX Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 150 of 223 152 1 being taken into custody, it is normal procedure to write a 2 report on the arrest for any agency. 3 Q. 4 Tactical Flight Officer, conveying information about what had 5 happened to the Bakersfield Police; is that correct? 6 A. And you said that you had heard Deputy Storar, the Yes. 7 MS. PETTIGREW: 8 THE COURT: 9 MS. BATEMAN: 10 Pass the witness, your Honor. Recross? Thank you. RECROSS-EXAMINATION 11 BY MS. BATEMAN: 12 Q. 13 experience a laser strike to report it to the FBI? 14 A. Yes. 15 Q. You state you did report this to the FBI? 16 A. Yes. Deputy Austin, you said it is your duty when you 17 18 MS. PETTIGREW: Objection. Beyond the scope of the redirect. 19 THE COURT: It might not be because of the questions 20 about responsibility of investigation and reports, so the 21 objection is overruled. 22 BY MS. BATEMAN: 23 Q. When did you report it first to the FBI? 24 A. When the laser strike report was completed, I believe I 25 e-mailed our liaison officer that works with our department KEVIN AUSTIN - RX Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 151 of 223 153 1 and the FBI, I e-mailed it to him upon completing the report. 2 Q. At the same day, about the same time? 3 A. The same day that it was completed. 4 Q. Okay. 5 within a day or two of the incident? 6 A. Yes. 7 Q. Who was that liaison? 8 A. The senior deputy, Josh Nicholson. 9 Q. What did you say in that report? 10 And that, you testified earlier that that was MS. PETTIGREW: Objection, your Honor. 11 Mischaracterizes the evidence. 12 MS. BATEMAN: 13 has -- 14 15 Your Honor, he has testified that he THE COURT: the report? Wait just a second. What did he say in What is the mischaracterization? 16 MS. PETTIGREW: 17 THE COURT: 18 MS. BATEMAN: It was an e-mail, not a report. Rephrase your question, please. Your Honor, he testified that he had a 19 duty to report it, and that he did report it, and that he 20 reported it in an e-mail. 21 THE COURT: That's right. What's your question now? 22 BY MS. BATEMAN: 23 Q. What did you report in the e-mail? 24 A. I sent him a attachment with the FAA Laser Strike Incident 25 Report. KEVIN AUSTIN - RX Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 152 of 223 154 1 Q. And was there any text? 2 A. I'm sure there was. 3 incidental. 4 Q. 5 Mr. Nicholson's title? 6 A. Liaison. 7 Q. Liaison. 8 him? 9 A. Senior Deputy Nicholson. 10 Q. Senior Deputy Nicholson. 11 October 9, 2014; is that correct? 12 MS. PETTIGREW: 13 I can't recall. It was probably It maybe even referred to a case number. You also e-mailed -- did you call him a -- what was "Liaison Nicholson," is that how you refer to You also e-mailed him on Objection, your Honor. Beyond the scope. 14 THE COURT: 15 MS. BATEMAN: Sounds like it is. Well, your Honor, he is testifying 16 about communications with Senior Deputy Nicholson about the 17 laser event. 18 to his previous testimony about the cockpit illumination. And my next two questions are going to get back 19 THE COURT: 20 MS. BATEMAN: 21 THE COURT: Tie it in? Yes. Go ahead. 22 BY MS. BATEMAN: 23 Q. 24 write that the cockpit was illuminated, did you? 25 A. In that e-mail to Senior Deputy Nicholson, you didn't I didn't write what? KEVIN AUSTIN - RX Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 153 of 223 155 1 Q. That the cockpit was illuminated. 2 A. In the October 9th e-mail? 3 Q. Yes. 4 A. I believe there was an e-mail from him asking me more 5 in-depth questions. 6 remember what I wrote. 7 Q. Would it refresh your recollection if you could review it? 8 A. Sure. 9 Q. If you turn to tab D, as in "David," in the Defense I haven't seen that e-mail. I don't 10 exhibit binder. You will see the e-mail. 11 A. I have it. 12 Q. Okay. 13 A. Not yet. 14 Q. Please. 15 A. No. 16 Nicholson where I said that the laser illuminated the cockpit. Have you had an opportunity to review it? Do you mind if I do? There is nothing in this e-mail with Senior Deputy 17 MS. BATEMAN: 18 Your Honor, we would like to move Defendant's 19 Thank you. Exhibits C and D into evidence. 20 THE COURT: 21 MS. PETTIGREW: 22 THE COURT: 23 MS. BATEMAN: 24 25 Any objection? Yes, your Honor. The legal ground? Prior inconsistent statements, your Honor. THE COURT: I need the legal ground for the KEVIN AUSTIN - RX Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 154 of 223 156 1 objection. 2 MS. BATEMAN: Oh, excuse me. 3 MS. ESCOBAR: Your Honor, there is no basis to admit 4 an e-mail -- 5 6 THE COURT: I don't need argument. I need a legal ground for the objection. 7 MS. ESCOBAR: Hearsay. There is a chain. That is a 8 supplement to the laser questionnaire, and there is an e-mail 9 chain clarifying the Laser Beam Questionnaire. 10 THE COURT: The objection is overruled based on the 11 exception to the hearsay rule. 12 MS. BATEMAN: 13 THE COURT: 14 MS. ESCOBAR: 15 C and D are admitted, your Honor? Anything else? Well, there is no inconsistency, so there is no basis for the admission. 16 THE COURT: That's a juror question. 17 legal preclusion. 18 documents are received. 19 That's not a So the objection is overruled, and the (Defendant's Exhibits C and D were received.) 20 MS. BATEMAN: 21 Thank you, Deputy Austin. 22 THE COURT: 23 MS. PETTIGREW: 24 /// 25 /// Thank you, your Honor. Anything further? Briefly, your Honor. KEVIN AUSTIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 155 of 223 157 1 FURTHER REDIRECT EXAMINATION 2 BY MS. PETTIGREW: 3 Q. 4 Nicholson ask you specific questions in the e-mail? 5 A. 6 appears it was an e-mail sent by Erick Bach to Nichol -- to 7 Senior Deputy Nicholson, who forwarded it to me. 8 Q. 9 eventually sent to you, is it asking very specific questions? Looking at Defense Exhibit D, did Senior Deputy Josh It doesn't appear that it was Senior Deputy Nicholson. Then let me rephrase the question. In the e-mail that was 10 A. It does. 11 Q. And are you responding specifically to those questions? 12 A. I am. 13 Q. And did it ask anywhere for you to expand on the entire 14 laser incident? 15 A. Somewhat. 16 Q. Does it ask you specifically about the cockpit 17 illumination? 18 A. It did not. 19 MS. PETTIGREW: 20 THE COURT: 21 Next witness, please. 22 MS. PETTIGREW: Pass the witness, your Honor. You may step down. Your Honor, United States calls 23 Tactical Flight Officer with Kern County Sheriff's Office, 24 Jeremy Storar to the stand. 25 JEREMY STORAR, It JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 156 of 223 158 1 called as a witness on behalf of the Government, having been 2 first duly sworn, testified as follows: 3 THE COURT: 4 and then tell us who you are. 5 THE WITNESS: 6 THE COURT: 7 THE WITNESS: 8 THE COURT: 9 Please take the witness stand right here, My name is Deputy Jeremy Storar. The spelling of your last name is? S-t-o-r-a-r. Thank you. Direct examination. DIRECT EXAMINATION 10 BY MS. PETTIGREW: 11 Q. Deputy Storar, what is your current occupation? 12 A. Deputy Sheriff for the Kern County Sheriff's Office. 13 Q. How long have you held that position? 14 A. A little over ten years. 15 Q. And while working for the Kern County Sheriff's Office, 16 have you held various positions? 17 A. I have. 18 Q. What are those positions? 19 A. I have been a guard, or an escort, in the court system. 20 have been a deputy on patrol as well as a Tactical Flight 21 Officer and Sheriff's Department Air Unit. 22 Q. 23 Sheriff's Air Unit? 24 A. 25 Flight Officer, I held that position for two years. How long have you been a Tactical Flight Officer in the Currently, I'm back on patrol. When I was a Tactical I JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 157 of 223 159 1 Q. 2 you were with the Air Unit? 3 A. 4 was on-the-job training. 5 Q. What type of training did you receive? 6 A. It is an on-the-job training. 7 helicopter. 8 by more experienced officers that have been in those positions 9 for several years, five or more years, this is the 10 And during that time, did you receive any training while Yes. All of the training that I did while in the Air Unit It's going up in the You go through an evaluation phase. You are told expectation, this is what we do. 11 They show you how to manipulate the equipment that is 12 in the helicopter. 13 experience as a patrol deputy, as well, in that position. 14 And you apply your knowledge and And from that point forward, it is just practice and 15 repetition. 16 Q. 17 helicopter is hit by a laser? 18 A. Yes, ma'am. 19 Q. What was that training? 20 A. Again, on-the-job training. 21 department also gives on in the event of this, this is how the 22 situation will be handled. 23 Q. What are those directives? 24 A. The directives for the sheriff's office is that, as a 25 Tactical Flight Officer or a pilot of an aircraft, if you are And have you had any training in what to do if the There is directives that the JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 158 of 223 160 1 struck with a laser and it affects you in any way, that we are 2 considered the victims. 3 We have to notify whatever police agency covers the 4 jurisdiction that we are flying, whether it be Bakersfield 5 Police Department, an outlying city, or the sheriff's office, 6 and request officers respond to the scene and investigate and 7 take a report. 8 Q. 9 were working as a Tactical Flight Officer with laser strikes? And in your training, have you had experience while you 10 A. Yes, ma'am, I have. 11 Q. Approximately how man? 12 A. Probably between five and ten. 13 Q. Have you ever felt the physical effects of a laser strike? 14 A. Yes, ma'am, I have. 15 Q. What were those effects? 16 A. Within about two minutes to five minutes of being struck 17 and having any sort of prolonged exposure -- and what I mean 18 "prolonged" is anywhere between two and five seconds -- my 19 eyes would start to feel like sand was being poured into them. 20 A very abrasive feeling, and also a feeling of swelling in the 21 eye itself. 22 Q. 23 duties? 24 A. 25 providing safety to units that are on the ground. Now, as a Tactical Flight Officer, what are your regular The duties of a Tactical Flight Officer is primarily And within JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 159 of 223 161 1 the helicopter itself, it is manipulation of equipment and the 2 handling of radio traffic that is coming in from various 3 agencies. 4 So we monitor several different bands, police radios. 5 Bakersfield Police Department has two channels. 6 Department usually has two that we are all listening to 7 simultaneously. 8 9 10 The Sheriff's We listen for calls. My job is to dispatch myself and the pilot. basically tell the pilot, "Let's go here." I The pilot turns the aircraft in that direction. 11 When we arrive on scene, I manipulate the equipment, 12 as well as handle the radio traffic, directing the officers 13 that are on the ground to points of interest that we see, 14 whether it be a suspect, evidence, dangers, things of those 15 nature. 16 Q. 17 previously been admitted. 18 or a helicopter identical to this one before? 19 A. Yes, ma'am, I have. 20 Q. And can you describe the equipment that's available for 21 your use as a Tactical Flight Officer on this helicopter? 22 A. 23 four of our patrol helicopters. 24 radio system that has several different bands that we 25 communicate with local and outlying agencies around Kern I'm going to show you Government's Exhibit 1-a. Yes, ma'am. This has Have you flown in this helicopter The picture that's displayed here is one of It is outfitted with a police JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 160 of 223 162 1 County. 2 Kern County as well. 3 Can communicate also with agencies from outside of It also has a aviation radio inside of it. It also 4 currently -- this picture shows that it has a night sun, which 5 is a large searchlight on the tail end of the aircraft. 6 on the front -- 7 Q. Can you point out where the night sun is on the photo? 8 A. The night sun is right here. 9 Q. What else is available on the helicopter? 10 A. The FLIR, which is Forward Looking Infrared, and it also 11 has a daytime camera feature as well, and that's on the nose 12 section of the aircraft. 13 Q. Can you point that out on the photograph? 14 A. (Witness Complies.) 15 Q. What other type of equipment do you use when you are 16 working the Air Unit? 17 A. 18 myself wear an aviation helmet that has communication inside 19 of it so that we can hear the radios and we can also talk back 20 and forth with one another. 21 We have personal equipment as well. And Both my pilot and A microphone is attached to that. We also have night vision binoculars that affix on 22 the top portion of the helmet, and I wear binoculars as well. 23 Q. 24 Flight Officer on a regular call. 25 has been a laser strike? Now, you described what your duties are as a Tactical Do those change when there JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 161 of 223 163 1 A. No, ma'am. 2 Q. And were you on duty on the night shortly after midnight 3 on September 12th, 2014? 4 A. Yes, ma'am, I was. 5 Q. In what capacity? 6 A. As a Tactical Flight Officer flying a similar aircraft to 7 this with a different tail number, November N397 Echo. 8 Q. But otherwise, it is identical in features? 9 A. Yes, ma'am. 10 Q. And what was your mission on that evening? 11 A. Patrolling overhead Bakersfield, metropolitan Bakersfield, 12 as well as the outskirts if the calls took us in that 13 direction. 14 Q. Did you receive any calls on that evening? 15 A. Several. 16 Q. And do you recall any that happened shortly after 17 midnight? 18 A. Yes, ma'am. 19 Q. What call was that? 20 A. Initially, we had, I believe, landed at the sheriff's 21 hangar, where we store our helicopters and we have our 22 equipment. 23 equipment, I don't remember what that was. 24 25 Several calls. And we had gone there I believe to retrieve some We had a ride-along with us that night. We lifted off from the hangar, and en route to a report of a male JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 162 of 223 164 1 subject that was naked and armed with a firearm. 2 Q. 3 happen to divert your helicopter? 4 A. 5 pilot where I would like the aircraft to be to handle a 6 particular call. And when you were en route to that call, did anything Yes, ma'am. 7 8 As I stated before, my job is to tell the The pilot's responsibility is the safe operation of the aircraft. 9 And while en route to that call, we abruptly turned 10 in a direction that was unusual or not expected by me. 11 Q. And did you know at that time why you were turning? 12 A. I did not. 13 Q. I'm going to show you a map which is Government's Exhibit 14 2-a. 15 A. 16 specific, the 99 freeway and the 204 freeway, which is also 17 known as Golden State Highway. 18 Q. 19 flying when you were first responding to the call? 20 A. 21 the very top of the map, where it says, "Kern County Sheriff's 22 Office." 23 is where our sheriff's hangar was, and that's the south side 24 of Meadows Field Airport. 25 Are you familiar with this area? Yes, ma'am. It is an overview of Bakersfield, and And so where were you flying? What direction were you To the north of the -- around the north side of the map, Headquarters is where -- and I believe the red dot We took off from there, flew directly southbound and JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 163 of 223 165 1 were essentially flying over the 99 freeway, heading in a 2 southbound direction. 3 Q. 4 far from Meadows Field Airport were you when that turn took 5 place? 6 A. Roughly two and a half to three miles. 7 Q. And are you familiar with the critical zone of the 8 airport? 9 A. And you said there was a sudden turn. Not in that terminology. Approximately how I'm familiar with the Class 10 Delta, which is a controlled air space that's controlled by 11 the Meadows Field tower. 12 Q. And how far does that extend out from the airport? 13 A. Five miles from the Air Traffic Control Center. 14 Q. When you made that first turn, were you within that Class 15 Delta area? 16 A. Yes, ma'am. 17 Q. And so what happened when the pilot turned the aircraft? 18 A. We were traveling southbound along the 99 freeway, and he 19 abruptly started to turn eastbound. 20 Our speed, if I recall correctly -- we were going 21 into a in-progress call -- would have been roughly, in that 22 helicopter, a hundred to 110 miles per hour, and the aircraft 23 quickly turned in an eastbound direction. 24 Q. 25 circumference that the helicopter has to travel around if it Now, when you say "quickly," is there still some type of JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 164 of 223 166 1 is going that fast? 2 A. 3 does take a moment to decelerate and turn in an arc. 4 Yes, ma'am. It doesn't just turn at a right angle. It And the pilot typically -- and it depends on whether 5 we are going to start in orbit quickly to that turn or if we 6 have to travel a distance -- is going to maintain a speed or 7 decelerate to get into an orbit. 8 Q. Did it maintain the speed or decelerate? 9 A. It decelerated. 10 Q. As you are turning into this orbit and you are 11 decelerating, what's your approximate height from the ground? 12 A. Give or take, between 450 and 550 feet above ground level. 13 Q. And what happened as you were turning around? 14 A. He, "he" being my pilot, asked me if I had saw something, 15 and started muttering stuff that I don't remember at this 16 point, but it got my attention. 17 on, so I asked him, "What are we doing," and he said that he 18 was being struck by a laser and asked if I had seen it. 19 Q. What was your response? 20 A. That I had not. 21 Q. What actions did you take at that time? 22 A. At that point, I began to actually search actively. 23 Instead of my focus being towards the call that we were en 24 route to, was searching for the location of where we were 25 being struck. I wasn't sure what was going JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 165 of 223 167 1 Q. What equipment did you use to do so? 2 A. Typically -- and I don't recall specific equipment that I 3 used in that moment. 4 in moments to follow, but initially, it would have either been 5 my naked eye or my naked eye in conjunction with my binoculars 6 or goggles, my night vision goggles. 7 Q. 8 that point? 9 A. I do remember the equipment that I used Do you recall if you had your night vision goggles on at My recollection is that I did have those in the down 10 position, was using my night vision goggles. 11 Q. What happened next? 12 A. Within a few seconds, I saw a green laser striking us at 13 the nose section of the aircraft and over on the pilot's side. 14 Q. 15 on the area of the helicopter that you were in? 16 A. 17 green laser coming either across the nose or on the windscreen 18 of the aircraft. 19 Q. Did it go through the cockpit window? 20 A. It does pass through. 21 itself or the Plexiglas, it does travel through that. 22 Q. Do you recall what angle it struck the glass at? 23 A. I do not recall the angle per se that it struck. 24 just that I saw it hitting the windscreen and passing through. 25 Q. And can you describe the effect that the green laser had In that particular instance, I saw the flashing of the If it goes and it hits the glass It is And so when you saw this strike, did you see what color it JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 166 of 223 168 1 was? 2 A. Green. 3 Q. And when you saw this green light come through the cockpit 4 window, how long was that between the time when the pilot had 5 suddenly started decelerating and turning the airplane and 6 when you saw this light? 7 A. 8 seconds. 9 Q. Approximation would be a second and a half to three And then when the light was striking the cockpit, how long 10 was it striking the cockpit for? 11 A. Second to two seconds. 12 Q. And did you look away at all when it was striking the 13 cockpit? 14 A. 15 where the point of origin for that laser was. 16 Q. Did you see that point of origin? 17 A. Initially, no. 18 I saw where my pilot was directing my attention to. 19 Q. 20 see where the pilot was directing your attention? 21 A. Probably within two to three seconds. 22 Q. What did you see at that time? 23 A. He directed my attention to a parking lot of a business 24 that I know to be AMS, which is a drywall supply company. 25 least, at one point, it was there. I did not, because I was still actively searching for And after the aircraft moved into a orbit, And how shortly after the laser strike was over did you I know that from prior At JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 167 of 223 169 1 construction experience that I had. 2 And I looked into that parking lot with my night 3 vision goggles and in conjunction with the night sun 4 searchlight, and saw a subject standing in the parking lot. 5 Q. What details, if any, could you make out of the subject? 6 A. Initially, that it appeared to me to be a male subject. 7 It appeared to have no shirt on, and there was also a dog that 8 was roaming around where the subject was standing. 9 Q. When you first saw the suspect, what was he doing? 10 A. Looking in our direction of where our orbit was, and he 11 was standing still between some lights and some trees in the 12 parking lot. 13 Q. 14 photograph reflect the area where you saw the suspect after 15 you saw the laser strike? 16 A. 17 this picture. 18 Q. What was the helicopter doing at this time? 19 A. We were orbiting in a clockwise direction on the north 20 side of the business and circling around to the east side. 21 Q. And you reference the night sun. 22 A. The night sun is an extremely bright light that's affixed 23 to the tail section and underneath the aircraft. 24 to illuminate either targets or to search for targets, 25 "targets" being in a location, a vehicle, a piece of evidence, I'm going to show you Government's Exhibit 2-b. Does this Yes, within the yellow square rectangle that's depicted in What is the night sun? I use that JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 168 of 223 170 1 a suspect, whatever. 2 Q. 3 suspect? 4 A. Yes, ma'am. 5 Q. And using the night sun and the other tools available to 6 you, were you able to get a pretty good view of the suspect? 7 A. Yes, ma'am. 8 Q. Would you be able to identify him? 9 A. No. 10 Q. And while you were orbiting, what was the suspect doing? 11 A. Still standing in the parking lot and kind of following, 12 looking where we were orbiting. 13 us. 14 Q. 15 movements? 16 A. 17 returned, but began walking eastbound towards the covered 18 portion of the building itself. 19 And was the night sun being used to illuminate the His attention was drawn to And did he continue to just watch you or did he make any No, ma'am. At some point, he returned -- or sorry, not That covered portion is located roughly in the 20 southwest corner of that building. 21 Q. 22 you point out to where the covered portion is? 23 A. Yes, ma'am. 24 Q. Now, could you see under that covered portion at any time? 25 A. Portions of it, not in its entirety, though, because of And looking at the map on the screen in front of you, can (Witness Complies.) JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 169 of 223 171 1 the angle and the height that we fly and the tightness of our 2 orbit. 3 Q. 4 covering? 5 A. Yes, ma'am, I was. 6 Q. What did you see? 7 A. A motor home that was parked underneath it. 8 Q. I ask you to look at Government's Exhibit 1-d in the book 9 in front of you. Were you able to see anything underneath the awning or the 10 A. Okay. 11 Q. Do you recognize this photo? 12 A. Yes, ma'am. 13 Q. What is it? 14 A. This is a motor home that is underneath the awning of the 15 AMS building located at 3501 Sillect Avenue. 16 Q. How can you tell it is the AMS building? 17 A. Depicted just up and to the right of the corner or back 18 corner of the motor home. 19 MS. PETTIGREW: Your Honor, the government moves to 20 admit Government's Exhibit 1-d. 21 MS. BATEMAN: 22 THE COURT: 23 No objection. Received. (Government's Exhibit 1-d was received.) 24 MS. PETTIGREW: 25 THE COURT: And to publish it on the Elmo. That's fine. JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 170 of 223 172 1 BY MS. PETTIGREW: 2 Q. 3 under; is that correct? 4 A. That's correct. 5 Q. Were you still orbiting at this time? 6 A. Yes, using a combination of the night sun, the FLIR 7 camera, my NVG goggles and my binoculars. 8 Q. 9 enforcement agency? This is the awning area that you saw the defendant walk Now, at any point, did you communicate with another law 10 A. Yes, ma'am, I did. 11 Q. What agency was that? 12 A. The Bakersfield Police Department. 13 Q. While you were in communications with the Bakersfield 14 Police Department, did they indicate that they were on their 15 way to the location? 16 A. Yes, ma'am. 17 Q. And while they were on the way, did you see the suspect do 18 anything else? 19 A. 20 carport, but the covered awning section of that business, and 21 moments later -- and I say moments. 22 seconds to a minute -- he exited that covered portion, still 23 with the canine or the dog that was with him, and began 24 walking westbound towards the fence line of the property. 25 Q. The suspect had gone under the carport -- or not the And what happened then? Possibly within 30 JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 171 of 223 173 1 A. Two things that I noticed is the subject that I saw that 2 was in the parking lot at first had no shirt on. 3 time, had a shirt on that was white and blue, and began or 4 continued to walk westbound towards a gate that's on the 5 southwest corner of the property. 6 Q. And did he reach the gate? 7 A. He did. 8 Q. And what did he do when he was at the gate? 9 A. While we were orbiting, I saw a vehicle that was driving 10 in the area. 11 Street and heading towards Arrow. 12 He, this When I first saw, it was eastbound on Gulf That vehicle, as we were continuing to orbit, at the 13 time I didn't know if it was involved, but I continued to 14 watch for possibilities. 15 on Arrow Street and pull in front of the gate to that 16 business. 17 Q. What happened when you saw the SUV pull into the gate? 18 A. A driver who appeared to be a male in his mid-40s with 19 dark hair had got out of the driver's seat and approached the 20 gate where the subject that I believed was striking us with 21 the laser had met him. 22 Q. And at the gate, did they open the gate? 23 A. They did not. 24 Q. Did they unlock the gate? 25 A. No. I saw that vehicle turn southbound JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 172 of 223 174 1 Q. What happened at the gate? 2 A. It appeared that there was a transfer of some property. 3 What it looked like to me on both my binoculars, as well as my 4 night vision -- not night vision, my FLIR -- is a bowl of food 5 or plate of food of some sort was handed to -- from the driver 6 of the vehicle to the subject within the fence. 7 Q. 8 attention to what was happening at the gate? 9 A. And was there any reason you were taking particular Yes. Looking for any other exchanges, whether I could see 10 a device, being a laser device or a laser light, also being 11 transferred, which I could not tell. 12 Q. 13 between the suspect and the gentleman from the SUV? 14 A. 15 Arrow Street and out of the area, and the subject within the 16 gate walked eastbound back to the motor home or the location 17 of the motor home and underneath the covered portion of the 18 AMS building. 19 Q. 20 him again that evening? 21 A. I did. 22 Q. When was that? 23 A. When the Bakersfield Police Department arrived, they 24 responded to the same gate where the Suburban had been parked, 25 and he eventually came out and met with officers. And what happened after you saw the exchange at the gate The driver got back in the vehicle and drove southbound on After he walked under that covered portion, did you see JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 173 of 223 175 1 2 MS. PETTIGREW: Your Honor, may I approach the witness with Government's Exhibit 3-a, please. 3 THE COURT: All right. 4 BY MS. PETTIGREW: 5 Q. Do you recognize Government's Exhibit 3-a? 6 A. Yes, ma'am. 7 Q. What is it? 8 A. It is an audio recording of the radio transmissions from 9 the Bakersfield Police Department's, what we refer to as 10 Channel 1, the traffic between myself and the officers that 11 were responding to this call. 12 Q. Is this the only channel that you used that evening? 13 A. No. 14 Q. And have you listened to this recording? 15 A. I have. 16 Q. And does it accurately reflect the length of time from the 17 initial communication to the final communication? 18 A. Yes, ma'am. 19 Q. And is it a fair and accurate recording of your 20 communication with the Bakersfield Police Department on that 21 channel shortly after midnight on September 12, 2014? 22 A. 23 24 25 Yes, ma'am. MS. PETTIGREW: Your Honor, may I approach the witness again? THE COURT: Sure. JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 174 of 223 176 1 2 MS. PETTIGREW: 3-a, your Honor. 3 THE COURT: 4 MS. BATEMAN: 5 THE COURT: 6 No objection, your Honor. Received. MS. PETTIGREW: And I would like to publish it to the jury and let them listen to the dispatch. 9 THE COURT: 10 11 Any objection? (Government's Exhibit 3-a was received.) 7 8 The government moves to admit Exhibit How long is it? MS. PETTIGREW: I think it is like less than five minutes, your Honor. 12 THE COURT: Do we agree that the court reporter 13 should not have to take it down because it is already in 14 evidence? 15 in court. For the record, it would be present for any review 16 MS. PETTIGREW: 17 MS. BATEMAN: 18 THE COURT: 19 Government agrees, your Honor. That's fine. Okay. (The recording was played.) 20 BY MS. PETTIGREW: 21 Q. 22 with the Bakersfield Police Department on Channel 1? 23 A. 24 that channel relating to possible burglary at another business 25 that was unrelated. Now, was there -- was that your dispatch communications Yes, pertinent to that call. There was also traffic on JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 175 of 223 177 1 Q. Was that the one related to the Office Depot? 2 A. Yes, ma'am. 3 Q. That did not have to do with this call? 4 A. No, it did not. 5 Q. Did you also speak to the Bakersfield Police Department on 6 a second channel at any time? 7 A. Yes, ma'am, I did. 8 Q. What channel was that? 9 A. It is Bakersfield Police Department Channel 4, which is 10 designated for car-to-car traffic, or officer-to-officer 11 traffic. 12 13 MS. PETTIGREW: Your Honor, may I approach the witness again? 14 THE COURT: Sure. 15 BY MS. PETTIGREW: 16 Q. 17 3-b. 18 A. Yes, ma'am. 19 Q. What is it? 20 A. This is the radio transmission of the recording of the 21 radio transmissions on Channel 4 pertinent to this call. 22 Q. Have you had an opportunity to listen to the CD? 23 A. Yes, ma'am. 24 Q. Is it a accurate and fair recording of your communications 25 with Bakersfield Police Department shortly after midnight on I'm handing you what's been marked as Government's Exhibit Do you recognize this exhibit? JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 176 of 223 178 1 September 12, 2014? 2 A. Yes. 3 MS. PETTIGREW: 4 THE COURT: 5 MS. PETTIGREW: 6 Yes. Government moves to admit Government's Exhibit 3-b. 7 MS. BATEMAN: 8 THE COURT: 9 No objection. Received. (Government's Exhibit 3-b was received.) 10 11 May I approach the witness again? MS. PETTIGREW: This is a shorter tape, but I would like to publish it for the jury as well, your Honor. 12 THE COURT: Okay. 13 BY MS. PETTIGREW: 14 Q. 15 Police Department using the radio that evening? 16 A. Yes, ma'am, regarding that call. 17 Q. Regarding that call? 18 A. Yes, ma'am. 19 Q. Were you still in orbit when the Bakersfield Police 20 Department arrived? 21 A. Arrived on the scene to the call? 22 Q. Arrived on scene to the call, yes. 23 A. Arrived on scene to the call, yes, ma'am. 24 Q. What happened when they arrived? 25 A. They arrived in the southwest corner where the Suburban Is that your complete communication with the Bakersfield JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 177 of 223 179 1 had been parked and they waited there. 2 over the property, number one, to attempt to still locate the 3 subject that walked under the covered portion of the business 4 and towards the motor home so that we could direct officers to 5 that subject. 6 Q. 7 locked? 8 A. Yes, ma'am. 9 Q. What happened after that? 10 A. The officer had, as the recording that we listened to 11 depicts, the officer had a visual of the subject briefly while 12 I did not. 13 We maintained visual Also to provide safety for them on the call. When they arrived at the gate, was it still closed and Eventually, I did see the subject come out, and I 14 looked in combination with the night sun, which illuminated 15 the area, and my binoculars, and confirmed that it was the 16 same subject that my pilot had pointed to as being the subject 17 who struck him with the laser. 18 Q. 19 with the suspect? 20 A. Yes, ma'am. 21 Q. What did you observe? 22 A. That they -- it appeared, anyway, to me, that they were 23 communicating through the fence initially. 24 eventually open up the gate, and they contacted him on the 25 property inside the gate or the fence line. And did you see the Bakersfield Police Department interact The subject did JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 178 of 223 180 1 Q. And was the helicopter still orbiting at that time? 2 A. Yes, ma'am, it was. 3 Q. Was the night sun still on the suspect at that time? 4 A. Yes, ma'am. 5 Q. And at any time, did you observe anybody inside the gate, 6 inside the gated area, other than the suspect, and you said 7 there was a dog? 8 A. 9 that business while we were orbiting. Yes, ma'am. No other subject inside the fenced area of 10 Q. And approximately how much longer did you stay on scene? 11 A. Maybe a minute or two just to see the interaction, make 12 sure that the officers advised what we refer to as Code 4, 13 meaning that they are secure and they are safe. 14 And we did remain on scene to see if they had 15 confirmed that an offense had occurred and that was the 16 suspect. 17 Q. Did they confirm? 18 A. Yes. 19 MS. PETTIGREW: Your Honor, may I have one moment? 20 BY MS. PETTIGREW: 21 Q. And Deputy Storar, what is your vision? 22 A. Approximately 20/25 in both eyes. 23 Q. Now, you spoke about night vision goggles. 24 that affect the ability to perceive the green laser when you 25 are being struck by it? How far does JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 179 of 223 181 1 A. It diminishes the effects of it. It filters out the 2 harmful rays or lighting that negatively affects your eyes, 3 but it still allows you to see the laser itself. 4 makes it look more dim. 5 Q. 6 laser? 7 A. 8 does, but I don't know the science behind it. 9 Q. It just Does it completely protect you from the effects of the I don't know the answer to that. I have been told yes, it I guess what I was actually trying to say is does it -- 10 can you still tell how bright it is, even though you have the 11 night vision goggles on? 12 A. 13 binoculars, it dims the light so it does not have the same 14 intensity looking through the binoculars or the goggles as it 15 does if you were to look on the naked eye. 16 Q. Does the light infiltrate the peripheral vision at all? 17 A. It can still hit through the peripheral vision. 18 Q. So when you were struck by the laser that you saw, not the 19 first one that you didn't see, but the second one that you did 20 see, were you able to tell that it was -- did it look bright 21 to you? 22 A. It looked very intense to me. 23 Q. Now, when you were first seeing the suspect and you said 24 that he was standing, looking at the helicopter, where was he 25 standing in relation to the helicopter? No. When you look at the laser through the night vision JEREMY STORAR - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 180 of 223 182 1 A. When I first observed him, I would have been -- the 2 helicopter's location would have been a little bit to the west 3 and to the north of where he was standing. 4 Q. And which direction was he facing? 5 A. Towards the west and north, where our helicopter was 6 positioned. 7 Q. So it appeared that he was facing towards your helicopter? 8 A. Yes, ma'am. 9 Q. I showed you a photo of the motor home that was under the 10 awning. 11 A. I did not. 12 Q. Do you know when it was taken? 13 A. I do not. 14 Q. Does it appear that it was taken at night, similar to when 15 you saw the motor home? 16 A. No, ma'am, it does not. 17 Q. And the laser incident happened at night; is that correct? 18 A. Yes, ma'am, it did. 19 Q. And was the night sun on the entire time from when you 20 first located the suspect through during the exchange with the 21 SUV until the police arrived? 22 A. Yes, ma'am, it was. 23 24 25 Did you take that photograph? MS. PETTIGREW: Pass the witness at this time, your Honor. THE COURT: All right, ladies and gentlemen, let's Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 181 of 223 183 1 take 15 minutes, midafternoon break. 2 case, and then we will finish with this witness and move on to 3 the next. 4 Any questions? Okay. 15 minutes. 5 (The jury left the courtroom.) 6 (Recess) 7 8 9 THE COURT: are present. Please don't discuss the Back on the record. Witness is on the stand. MS. BATEMAN: 10 THE COURT: 11 MS. BATEMAN: Counsel and parties Ready for the jury? Your Honor, we have an issue. What is it? Deputy Austin testified that it is his 12 duty to report to the FBI and that he did make a report. 13 do not have that report. We 14 The government filed a response to our discovery 15 motion stating that it had provided to us all federal law 16 enforcement reports in this matter and had produced all local 17 law enforcement reports created in connection with the 18 investigation of this case that are in its possession, custody 19 and control, which is the same response they had made to our 20 discovery letter. 21 MS. ESCOBAR: That is the very thing that we were 22 discussing. 23 asked, "Did you report it," he said, "I e-mailed." 24 25 It was e-mails, e-mails. There was no formal report. And when you were It was e-mails. And then there were followup e-mails clarifying the Laser Beam Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 182 of 223 184 1 Questionnaire. 2 THE COURT: That was the subject matter of the 3 objection when you said something about a report and there was 4 an objection. 5 MS. BATEMAN: 6 THE COURT: Right. It was something not in evidence, and 7 then you cleared it up with another question, saying, "The 8 e-mails." 9 MS. BATEMAN: He testified, it is my recollection -- 10 and I don't know if it is possible, perhaps, if it would be 11 useful for the court reporter to read it back while we are 12 raising this issue -- the deputy testified on direct that when 13 a laser strike happens, it is his duty to make a report to the 14 FBI. 15 THE COURT: 16 MS. BATEMAN: 17 THE COURT: 18 MS. PETTIGREW: 19 THE COURT: 20 What did you do? It was Deputy Austin. Oh, is he still here? That's the FAA report. Wait. One person at a time. Is he still here or not? 21 MS. ESCOBAR: 22 THE COURT: 23 MS. BATEMAN: Your Honor, I think his testimony was MS. ESCOBAR: Her interpretation is -- there is a 24 25 Yes. Bring him in and ask him. clear. Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 183 of 223 185 1 semantic distinction. 2 3 Ms. Bateman asked, "Did you report," and she believes that that meant he prepared a report. 4 There is no report, but we have no objection to him 5 coming in to clarify that there was no formal report, only 6 e-mails, phone calls or whatever. 7 And this is the person, the defense can ask, this is 8 who they contacted. 9 THE COURT: 10 objection on the word "report" versus "reported." 11 12 Well, I thought that was the issue of the MS. BATEMAN: Your Honor, I believe that the testimony was not confusing or a matter of semantics. 13 He -- the prosecution elicited from him on direct 14 what steps he takes after he experiences a laser strike. 15 he responded that it is his duty to make a report to the FBI. 16 17 THE COURT: THE COURT: report. That's different from saying he filed a It is saying he reported it. 20 MS. BATEMAN: 21 THE COURT: 22 MS. BATEMAN: 23 Can you find that quickly, Peggy. (The record was read back.) 18 19 And He said it is his duty to report it. Correct. And then he did report it. And my questions to him were, "How did you report it?" 24 And he said, "By e-mail." 25 And I said, "What was your" -- "What report did you Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 184 of 223 186 1 make in an e-mail?" 2 THE COURT: 3 And he said that he sent it in e-mail form and attached that FAA form. 4 MS. BATEMAN: 5 text, he answered equivocally. 6 MS. ESCOBAR: 7 And then when I asked if there was also He said, "I believe so." He said there might have been a reference to a case number, but that was about it. 8 THE COURT: 9 MS. BATEMAN: That is what he said. I'm not -- he didn't have a memory of 10 what was in that report. 11 government has represented to us that they have given us every 12 report. 13 THE COURT: We haven't seen that report, and the I'm not following your argument. 14 testified that he reported it. 15 said that he sent e-mail and attached the FAA form. 16 MS. BATEMAN: And then, when pressed, he We don't have that e-mail. 17 least -- it seems like a discovery violation. 18 least, it seems like a violation under Jencks. 19 haven't seen the e-mail. 20 21 22 THE COURT: At the very And at the very We still I thought it was referred to during questioning. MS. BATEMAN: There is more than one e-mail. 23 an e-mail on October 9th. 24 the initial one. 25 He THE COURT: It was a followup. Where is it? We have We don't have Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 185 of 223 187 1 MS. ESCOBAR: Your Honor, I don't know that -- 2 AGENT NICHOLSON: It just comes across from him to 3 me with that attachment. 4 That's their way of reporting it. 5 That's it. There is no text. They send us the FAA form, and then it is our job to 6 go compile everything. 7 questions that were from an agent passed through me. 8 THE COURT: 9 MS. BATEMAN: 10 And then the second e-mail is followup What don't you have? I don't have his initial report to the FBI. 11 AGENT NICHOLSON: The way they report it to the FBI 12 is he sends -- or whoever is affected send that attachment. 13 That's all they put. 14 they attach it. 15 That's it. purely the FAA form. 17 FBI. 18 22 It is just That's their way of reporting it to the And then from there, if we have followup, then we go from there. 20 21 There is nothing else to it. There is no verbiage inside the e-mail. 16 19 They put laser questionnaire and then That's their only way that they report it to us. THE COURT: I'm still at a loss of what you don't have. MS. BATEMAN: We don't have the e-mail that the 23 questionnaire was attached to that the witness stated 24 contained additional text. 25 referred to an e-mail chain. And I don't know -- the witness Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 186 of 223 188 1 2 MS. ESCOBAR: The e-mail chain was this very exhibit that was admitted as Defendant's Exhibit -- 3 4 No. MS. BATEMAN: It is D. We do have those. I don't know if that -- 5 MS. ESCOBAR: That was the chain e-mail. When they 6 sent the FAA questionnaire to FBI, and Josh was the liaison 7 FBI Task Force Officer who received it, they contacted our 8 office. 9 And then now we are getting into the realm of the 10 deliberative process, I believe, but they contacted us. 11 we interested? Were 12 And then I had questions, which is in this e-mail 13 chain, which I thought was a little bit beyond evidentiary 14 value. 15 On the other hand, the question is, the AUSA is 16 asking for more details, more in addition to the Laser Beam 17 Questionnaire. 18 And then that was from the FBI agent to Josh. Josh 19 forwarded my questions then to Austin, who testified about 20 this very e-mail, which was admitted into evidence. 21 THE COURT: Look, this is precisely -- this is called 22 a "meet and confer issue." 23 if there is something I need to decide, I will. 24 25 Counsel, you meet and confer, and But I don't know what was given, obviously. in the middle of discovery. I'm not I don't know what was given, what Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 187 of 223 189 1 wasn't. 2 quite sure you can. 3 4 But you two get together and figure it out. I'm You both speak English well. MS. BATEMAN: Your Honor, the point of the defense is that we don't know wasn't given. 5 THE COURT: 6 MS. BATEMAN: Well, ask her. We have asked multiple times for this 7 very type of law enforcement reporting, and she has told us 8 multiple times that she has provided everything to us. 9 10 And then her witness got on the stand and said, "There is a report to the FBI." 11 12 13 14 15 THE COURT: We don't have it. He did not say that. That is not what he said. He said he reported it to the FBI. And with further questioning, it was done by way of e-mail and the attachment. So I think we are saying the same thing again. 16 two can meet and confer when the jury leaves, but we are 17 wasting the jury's time right now. 18 and finish with this witness, please. 19 Let's bring the jury out (The following proceedings were had in the presence of the 20 jury, to wit:) 21 THE COURT: The jury has joined us. We had a couple 22 of legal issues we had to discuss and that's what we did. 23 That's why it took a little longer, ladies and gentlemen. 24 25 You Any time you are asked to wait in the jury room longer than I am telling you the break will be, you are JEREMY STORAR - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 188 of 223 190 1 entitled to know why. 2 here and the break is a little longer than we anticipated, you 3 will never find glazed doughnut crumbs out here. 4 Okay. And I assure you that when you come out Cross-examination, please. 5 CROSS-EXAMINATION 6 BY MS. BATEMAN: 7 Q. 8 questions for you. 9 your direct testimony. Good afternoon, Deputy Storar. 10 I just have a few I want to clarify some of the timing from I believe that you said you -- there were about one 11 to three seconds between when the pilot made the turn and when 12 the second strike occurred; is that correct? 13 A. That's correct, roughly. 14 Q. Okay. 15 observed, you estimated between one to two seconds; is that 16 correct? 17 A. That's correct. 18 Q. And while the helicopter was orbiting around the property, 19 you had a good look at the suspect? 20 A. Yes, ma'am. 21 Q. Except for when he was under the awning, correct? 22 A. That's correct. 23 Q. When you saw him walk first under the awning and then walk 24 back to the gate, when the SUV arrived, correct? 25 A. And the second laser strike, the one that you Yes, ma'am, that's correct. JEREMY STORAR - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 189 of 223 191 1 Q. And then he took something that you thought was food and 2 then walked back under the awning and then back to the gate 3 when the Bakersfield Police Department arrived, correct? 4 A. Yes, ma'am. 5 Q. The government played some of the dispatch recordings and 6 we heard you say at one time, I believe, that the suspect ran. 7 Is it your testimony that he walked or he ran? 8 A. 9 them, I was merely intending that he left the location I first He walked. In terms of verbiage that I communicate to 10 observed him at and went to a different location. 11 Q. 12 him try to leave the area? 13 A. No, ma'am. 14 Q. We also heard a reference on the dispatch to PC, I think 15 it was 247.5? 16 A. That's correct. 17 Q. That's the California state statute for a laser offense? 18 A. That's correct, the Penal Code section that applies to 19 laser strikes, that's correct. 20 Q. 21 quoting this exactly -- "When we land, we will 1021"? 22 A. That's correct. 23 Q. Does that mean to talk on the telephone? 24 A. Yes. 25 requesting a phone call. And the whole time you were watching him, you never saw We also heard you say something -- and I may not be A 1021 is a 10 code that says that we will call or JEREMY STORAR - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 190 of 223 192 1 Q. Okay. 2 Bakersfield police officers that were responding on the 3 ground? 4 A. 5 the officers that were doing the investigation. 6 Q. 7 later? 8 A. 9 case on that with the officer. Yes. Okay. And that's -- you meant between you and the In order to report and actually be interviewed by And did you have that conversation on the phone I don't recall having a conversation in this particular 10 Q. 11 area of the neighborhood where Mr. Bowser was found? 12 A. This location? 13 Q. Yes. 14 A. Very familiar. 15 Q. Very familiar, okay. 16 nearby? 17 A. Yes, ma'am. 18 Q. And obviously, the freeway is nearby? 19 A. Yes, ma'am. 20 Q. And there are commercial properties, there are 21 streetlights nearby? 22 A. Yes, ma'am. 23 Q. And there are radio or communication towers nearby? 24 A. Yes, ma'am. 25 Okay. Are you familiar with the, you know, the general MS. BATEMAN: And you know there is a CHP office Just one moment, please. That's all I TAMARA FLEMING - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 191 of 223 193 1 have. Thank you. 2 THE COURT: 3 MS. PETTIGREW: 4 THE COURT: 5 Any redirect? No redirect, your Honor. Thank you, you may step down. good evening. 6 THE WITNESS: 7 Next witness, please. 8 MS. PETTIGREW: 9 Have a You too. Your Honor, the United States calls Tamara Fleming to the stand, please. 10 THE COURT: All right. 11 TAMARA FLEMING, 12 called as a witness on behalf of the Government, having been 13 first duly sworn, testified as follows: 14 THE COURT: Please take the witness stand right here 15 and then tell us who you are. 16 THE WITNESS: My name is Tamara Fleming. 17 THE COURT: 18 MS. PETTIGREW: Direct examination, Ms. Pettigrew. 19 Thank you, your Honor. DIRECT EXAMINATION 20 BY MS. PETTIGREW: 21 Q. 22 current occupation is? 23 A. I am currently President of Moreland Corporation. 24 Q. And I'm going to put Government's Exhibit 2-b on the 25 screen. Good afternoon, Ms. Fleming. Can you tell me what your There is also a large version next to you. Do you TAMARA FLEMING - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 192 of 223 194 1 recognize this area? 2 A. I do. 3 Q. And why do you recognize it? 4 A. We own this building. 5 Q. And can you touch the screen and draw like an X on the 6 building that you own? 7 A. (Witness Complies.) 8 Q. Perfect. 9 2014? And did you own that building in September of 10 A. Yes, I did. 11 Q. Is there anyone that you recognize in court here today? 12 A. Yes. 13 Q. Can you describe what they look like and point them out 14 for us. 15 A. The gentleman on the far right, wearing the blue blazer. 16 THE COURT: 17 THE WITNESS: 18 THE COURT: Is? Mr. Bowser. He has been identified. 19 BY MS. PETTIGREW: 20 Q. Thank you. 21 A. I met Mr. Bowser while he was living in his motor home at 22 the factory. 23 Q. 24 Government's Exhibit 1-d. 25 A. And how do you know Mr. Bowser? We call this building the factory. And I'm going to show you another photograph marked as Yes, I do. Do you recognize this photograph? TAMARA FLEMING - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 193 of 223 195 1 Q. What is it? 2 A. That appears to be Mr. Bowser's RV that was at our 3 factory. 4 Q. 5 that's at your factory? 6 A. Yes. 7 Q. And when did you first meet the defendant, Mr. Bowser? 8 A. I'm not sure of an exact date. 9 year, sometime late summer last year. Is that -- is it underneath an awning type structure It was the summer of last 10 Q. Late summer of 2014? 11 A. Yes. 12 Q. And your business occupied this space at that time? 13 A. I don't work there every day, but we have owned that since 14 2014. 15 Q. Okay. 16 A. I had occasion to go to the factory and to retrieve some 17 items. 18 you the scope of how big it is. And how did you meet the defendant, Mr. Bowser? It is an old Home Depot, and so that will kind of give 19 We ran a housing factory out of there. We also used 20 it for storage, so when I would need items that I didn't have 21 in my office, I would go to the factory to retrieve them. 22 Q. And that was where you first met Mr. Bowser? 23 A. Yes. 24 Q. And what was he doing there? 25 A. I was told by Mr. Dave Brown -- TAMARA FLEMING - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 194 of 223 196 1 MS. SNIDER: 2 THE COURT: 3 Hearsay. It appears as though it is going to be, so be more specific on your question, please. 4 MS. PETTIGREW: 5 BY MS. PETTIGREW: 6 Q. Yes, your Honor. Do you know what Mr. Bowser was doing on the property? 7 THE COURT: 8 THE WITNESS: 9 Objection. That's "yes" or "no." Yes. BY MS. PETTIGREW: 10 Q. And what was he doing on the property? 11 A. Living there. 12 Q. And was he an employee of Moreland Corporation at that 13 time? 14 A. No. 15 Q. Was he ever an employee of Moreland Corporation? 16 A. No. 17 Q. Looking back at the map that I showed you, is the property 18 gated off? 19 A. Yes. 20 Q. And was it gated off in 2014? 21 A. Yes. 22 Q. And do you know if it is the practice to keep it gated and 23 locked at night? 24 A. Yes. 25 Q. And was it gated and locked in September of 2014, at TAMARA FLEMING - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 195 of 223 197 1 night? 2 A. As far as I know, yes. 3 Q. That was the practice? 4 A. Yes. 5 Q. Do you know at what point Mr. Bowser and the motor home 6 left the property? 7 A. Yes. 8 Q. When was that? 9 A. In October of 2014. 10 MS. PETTIGREW: 11 BY MS. PETTIGREW: 12 Q. Do you know why the defendant was living on the property? 13 MS. SNIDER: 14 THE COURT: 15 One moment, your Honor. Objection. The question is, "Do you know why he was living on the property?" 16 What's the objection? 17 MS. SNIDER: 18 Relevance. I'm sorry. I will withdraw the objection. 19 THE COURT: 20 THE WITNESS: Yes or no? Yes. 21 BY MS. PETTIGREW: 22 Q. Why was that? 23 A. Because he was needing a place to stay. 24 Q. Was there anybody else staying at the property at night 25 during September of 2014, to your knowledge? LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 196 of 223 198 1 A. No. 2 Q. And was there supposed to be anybody there at night in 3 September 2014? 4 A. No. 5 MS. PETTIGREW: 6 THE COURT: 7 MS. SNIDER: 8 THE COURT: 9 Next witness, please. 10 MS. ESCOBAR: 11 Pass the witness, your Honor. Cross? We don't have any questions, your Honor. You may step down. Thank you. Government calls Dr. McLin. LEON McLIN, 12 called as a witness on behalf of the Government, having been 13 first duly sworn, testified as follows: 14 15 THE COURT: Please take the witness stand and then tell us who you are. 16 THE WITNESS: 17 I'm Leon McLin, M-c-L-i-n. DIRECT EXAMINATION 18 BY MS. ESCOBAR: 19 Q. State your occupation for the record. 20 A. I'm a Senior Research Optometrist/Vision Scientist for Air 21 Force Research Laboratory. 22 Q. 23 Laboratory? 24 A. 25 different jobs, but. How long have you been employed by the Air Force Research I have been employed since 1987, in this laboratory, LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 197 of 223 199 1 Q. What is your current position? 2 A. My current position is a Senior Scientist. 3 Q. And in what particular -- 4 A. And so what I am doing is laser bio-effects, especially 5 the effects of laser glare and flash blindness, lasers used as 6 dazzlers for warning for military uses. 7 Q. 8 your educational background? 9 A. And would you tell the ladies and gentlemen of the jury I have a Bachelor's degree in Biology from Temple 10 University, and a Master's from the University of California, 11 Berkeley, and a Doctor of Optometry from Pennsylvania College 12 of Optometry. 13 Q. 14 of laser effects on pilots? 15 A. Yes. 16 Q. Have you -- hundreds, in fact, of publications? 17 A. Yes. 18 Q. And are you a member of the American National Standards 19 Institute? 20 A. Right. 21 Q. You are a voting member of what committees or what 22 institutes? 23 A. 24 American National Standard Institute For the Safe Use of 25 Lasers. Have you authored a number of publications on the subject So -- So for the safe use of lasers, there is a committee, The They have a -- several committees. I'm a member of LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 198 of 223 200 1 that group, and they make standards for using lasers. 2 Q. And in what regard? 3 A. Well, one of their publications is The American Standard 4 For the Safe Use of Lasers Outdoors, ANSI Z-136.6, and that 5 gives you control measures to use while using lasers. 6 Outdoor laser use? It gives you numbers for allowed exposures. It gives 7 you distances for where you can -- the lasers will operate 8 that you won't get injury. 9 safe use of air lasers. It gives you distances for the Say that you are not causing visual 10 interference and you can, say, operate a laser light show 11 around airports. 12 Q. 13 Laboratory, did you have experience and employment in this 14 general field? 15 A. 16 Air Force. 17 clinical optometry, seeing patients, before I went into 18 research in '87. 19 Q. You were in the private sector before? 20 A. No, I was never in the private sector. 21 Q. Always with the Department of Defense? 22 A. In optometry school or college, and then I was in the Air 23 Force, and now I'm a civil employee now, but I was active 24 duty. 25 Q. And before your employment with the Air Force Research Well, I'm an optometrist, so I have been employed by the I joined the Air Force in '76, so I was in What rank did you achieve? LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 199 of 223 201 1 A. Lieutenant Colonel. 2 Q. Are you not only familiar with the effects of lasers on 3 the eye and pilots and specifically airmen, but are you also 4 familiar with the functioning and mechanics of lasers? 5 A. Yes. 6 Q. Based on your training and experience, what would you say 7 is the percentage of laser incidents involving the use of 8 green lasers? 9 A. 10 Most of the laser incidents are green lasers, about 97 percent, are the FAA numbers. 11 MS. BATEMAN: Object that that question was 12 overbroad, as was the answer. 13 specifically. 14 THE COURT: "Laser incidents," The objection is sustained. 15 BY MS. ESCOBAR: 16 Q. 17 on aircraft? 18 A. Yes. 19 Q. And the percentage of laser strikes on aircraft would 20 be -- do you know the percentage? 21 A. It is about 97 percent. 22 Q. Okay. 23 that the pilots fill out when there is a laser incident and a 24 cockpit illumination by a laser? 25 A. Have you conducted research in the area of laser strikes I get the FAA reports. And those FAA reports are based upon those reports Correct. LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 200 of 223 202 1 Q. Have you also testified as an expert in the area of laser 2 effects on the eye and the functioning and mechanics of 3 lasers? 4 A. Yes. 5 Q. Have you qualified as an expert in that area? 6 A. I would say so. 7 Q. Have you testified in this court? 8 A. Oh, yes. 9 Q. And rendered opinions regarding how lasers work and the I have testified before in these laser cases. 10 effects of lasers? 11 A. Yes, ma'am. 12 13 MS. BATEMAN: Objection, your Honor. That question is compound and overbroad. 14 THE COURT: Just a second. It is compound. 15 BY MS. ESCOBAR: 16 Q. 17 was the subject matter? 18 A. 19 aircraft. 20 Q. 21 witnesses who testified in this case so far; is that correct? 22 A. Yes, ma'am. 23 Q. And based -- and you have also reviewed reports that were 24 provided in discovery to the defense? 25 A. Your area of expertise was what testifying in court? What Well, laser visual effects and pointing lasers at Now, you've been listening to the testimony of the I have. LEON McLIN - VD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 201 of 223 203 1 Q. Based upon your review of the reports and the testimony 2 that you have heard and the evidence, based also on your 3 training and experience, do you have an opinion whether the 4 person on the ground who was lasing Air-1 would have seen -- 5 6 MS. BATEMAN: THE COURT: Are you disputing the qualifications as an expert? 9 10 This witness hasn't yet been qualified, and she is asking for an opinion. 7 8 Objection, your Honor. MS. BATEMAN: I would like an opportunity to voir dire. 11 THE COURT: 12 MS. ESCOBAR: 13 THE COURT: 14 Any objection? No, your Honor. Go ahead. VOIR DIRE EXAMINATION 15 BY MS. BATEMAN: 16 Q. 17 been an author or coauthor on something like over a hundred 18 published articles; is that correct? 19 A. Yes, ma'am. 20 Q. Okay. 21 exposure on eyes? 22 A. Related to that mostly, yes. 23 Q. Including vision science? 24 A. Yes. 25 Q. And eye safety? Good afternoon, Dr. McLin. So your CV indicates you have And are they primarily on the effects of laser LEON McLIN - VD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 202 of 223 204 1 A. Yes. 2 Q. And how to measure safe exposure? 3 A. How to -- well, what safe exposure distances are, yes. 4 Q. Okay. 5 have you? 6 A. 7 using lasers. 8 Q. That wasn't the question. 9 A. Um, I'm not sure what that means. 10 Q. Well, have you studied -- have you ever conducted a study 11 on the use of hand-held commercial lasers? 12 A. 13 lasers to illuminate aircraft. 14 studies where I experienced lasers from aircraft and on the 15 ground of people pointing lasers at me. 16 Q. 17 users of hand-held lasers, the users themselves? You've never authored a study on users of lasers, On users of lasers? I have conducted numerous studies where we have used I have been the -- conducted On the effect of that, but have you actually studied the 18 MS. ESCOBAR: 19 THE COURT: 20 Well, I have authored studies on Your Honor, objection. Overbroad. You are going to have to be more specific. 21 THE WITNESS: I'm not following the question exactly. 22 I didn't study the population of users, but I've done studies 23 of how capable people are at using hand-held lasers. 24 BY MS. BATEMAN: 25 Q. How capable people are? LEON McLIN - VD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 203 of 223 205 1 A. Yes. 2 and what is the effect when you point a laser at someone doing 3 various tasks. 4 Q. 5 which of your articles is the one where you were studying the 6 users of lasers? 7 A. 8 where we had subjects do different tasks like driving a golf 9 cart and throwing balls into a target when they were -- when Okay. Like, for example, can they point a laser at someone Putting aside the second part of that, the effect, Well, there is a technical report there where we were -- 10 someone would point lasers at them. 11 Q. 12 light? 13 A. 14 were also studying the people pointing the lasers, to see if 15 they could do that task. 16 Q. Do which task? 17 A. Excuse me? 18 Q. You were studying the people pointing the lasers? 19 A. How well they can do that task. 20 work on is the U.S. Military uses lasers as dazzlers for 21 warning and for some visual suppression. 22 So you were studying the people who were experiencing the We were studying the people experiencing the laser and we So one of the things I And for those to be effective, I have various studies 23 of the effectiveness of using lasers, to point them at 24 someone, say, driver defeat, going into a checkpoint, can you 25 slow them down, can you stop them, can you convey warning so LEON McLIN - VD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 204 of 223 206 1 that you don't have to use like real bullets to stop them. 2 You want them to stop if they are innocents without resorting 3 to that. 4 Q. 5 was seeing whether the laser could be used as a dazzler to act 6 as a deterrent to the would-be driver? 7 A. Correct, correct. 8 Q. Okay. 9 dazzler? I'm trying to follow your laser dazzler. So that study But it wasn't a study of the person using the 10 A. It was a -- well, we also included how accurately could 11 you aim that laser at the car coming toward you. 12 Q. Okay. 13 A. That you can aim the laser, but, you know, there are 14 different parameters. 15 be expanded to make it easier. 16 pinpoint beam to hit where you want to hit. 17 fast they are going. 18 Q. And have you tested commercial lasers for their strength? 19 A. Well, I make measurements of laser output and I follow 20 what the strength of lasers are, yes. 21 Q. Do you build lasers as part of your work? 22 A. No. 23 Q. Do you dismantle them as part of your work? 24 A. We make measurements of them. 25 Force is going to use a laser, we can get military exemptions What were your findings? So one of findings is the beam has to You can't have just a little Depends on how A number of parameters. We do -- so if the Air LEON McLIN - VD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 205 of 223 207 1 for them to military use, so we make measurements to see how 2 well they comply to FDA standards for laser, whether they meet 3 laser requirements, what their outputs are, power outputs. 4 Q. You said "we." 5 A. I have personally done that, and I have reviewed the 6 reports of people who do that measurement. 7 Q. And you mostly work with pilot subjects; is that correct? 8 A. No. 9 of interest, but I work for Joint Nonlethal Weapons Director Do you mean you personally do that? I wouldn't say that. That's one of my primary areas 10 for the Marines and Army also and Navy. 11 Q. 12 think you said ten years doing clinical optometry? 13 A. 14 doing clinical optometry. 15 Q. You are not -- you are not a physicist? 16 A. I'm not a physicist, right. 17 Q. And you are not an electrical engineer? 18 A. I'm not an electrical engineer. 19 Q. You are not an applied scientist? 20 A. So I have a Master's degree in Physiological Optics. 21 Q. What is physiological optics, if you can do that so that I 22 can understand it? 23 A. 24 really amounts to, what's your eye's response to various 25 stimuli, how well can your eye perform. And your background is in optometry. And you said -- I I spent nine years to ten years doing -- well, nine years So that's vision effects. So vision science is what that LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 206 of 223 208 1 Q. 2 Okay. Just one moment. Your Honor, that's all the questions I have at this 3 moment on qualifications. We certainly wouldn't have any 4 objection to Dr. McLin's expertise as an optometrist, as a 5 vision scientist. 6 The more technical that way you describe -- 7 THE WITNESS: Physiological optics. 8 MS. BATEMAN: Physiological optics. 9 Safety standards with respect to laser. 10 We do object to him being qualified as an expert in 11 lasers in general or in users of lasers or in laser mechanics 12 or physics. 13 THE COURT: I have to wait until I have a question 14 asking for an opinion to determine whether or not it is within 15 his expertise. 16 Keep going, please. 17 FURTHER DIRECT EXAMINATION 18 BY MS. ESCOBAR: 19 Q. 20 the mechanics. 21 22 23 24 25 If I might continue along the lines of the engineering and You referenced -- Your Honor, I will flesh out a little bit more in those areas, the engineering and the mechanics. You referenced your membership on committees that set standards for the use of lasers. The defense specifically asked you about users LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 207 of 223 209 1 generally. As a voting member for the American National 2 Standards Institute, do you set standards, do you and other 3 scientists, regarding the safe use of lasers generally. 4 A. Yes. 5 Q. And do you, along with other scientists and experts in the 6 fields of lasers, generally set standards nationwide for the 7 safe use of lasers outdoors? 8 A. Yes. 9 Q. And are you also a member of a Society of Automotive 10 Engineers, which, again, set standards on the use of lasers in 11 air space? 12 A. 13 laser hazards in air space. 14 practices. I'm a committee -- yeah, I'm on a committee that does a 15 They write air space recommended There is FAA members, so it is not setting standards 16 so much, but recommendations like the report that the pilots 17 send in when they are illuminated by lasers. 18 that committee originally and then went through the FAA. 19 Q. 20 testified that he completed was generated as a result of an 21 initiative of the Automotive -- 22 A. 23 started. 24 Q. 25 Engineers which is involved in looking operational lasers? That came out of So the FAA Laser Beam Questionnaire that Pilot Austin NSAE 10, right. I participated in that, when that And you are also co-chair of a Society of Automotive LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 208 of 223 210 1 A. Correct. 2 FAA to show pilots the effects of lasers, I have produced that 3 video with the FAA, so that was really an FAA/Air Force video. 4 So one of the videos that they refer to for the And we put lasers in the simulator in Oklahoma City, 5 and, you know, what we want to do is try to familiarize and 6 educate pilots who would experience lasers as they are flying 7 around. 8 9 10 MS. ESCOBAR: witness is qualified to render an opinion in the area of laser use and laser effects. 11 12 Your Honor, I would submit that this THE COURT: Why don't we go ahead and ask questions and see if there is an objection. 13 MS. ESCOBAR: Okay. 14 BY MS. ESCOBAR: 15 Q. 16 expertise, you indicated that 97 percent of laser strikes on 17 aircraft are green in color? 18 A. Yes. 19 Q. Now, is there anything unique about green laser beams and 20 its effect on the vision of pilots and airmen? 21 A. 22 most sensitive to green. 23 a laser, you will have a brighter effect with the green laser 24 than most other colors of lasers. 25 Going back before this questioning regarding your Well, compared to other wavelengths of lasers, your eye is MS. BATEMAN: For the given outputs, same watts of Objection, your Honor. This was a LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 209 of 223 211 1 matter that we took up in our motions regarding comparisons. 2 THE COURT: 3 (The following proceedings were had at the sidebar, to 4 wit:) 5 6 THE COURT: We are at sidebar. Counsel are present. You waiving your client's presence? 7 MS. BATEMAN: 8 THE COURT: 9 Approach the bench for just one moment. versus green. Yes. As I recall, the issue was comparing red So where are we going with this? 10 MS. ESCOBAR: 11 THE COURT: We are going to compare with red. He is comparing it green versus 12 everything else, which, of course, would include red. 13 the purpose of this? 14 15 MS. ESCOBAR: What is That the eyes are more sensitive to the green. 16 THE COURT: 17 MS. ESCOBAR: But what are you trying to prove? And he will testify, first of all, that 18 it would have been perceived because the eyes are more 19 sensitive, but not only by the people in the aircraft, but by 20 the person on the ground, it would have been perceived because 21 the eyes are more sensitive, especially at night, he will say. 22 THE COURT: If I am -- but where are you going with 23 it? In other words, you are establishing that the green laser 24 is obvious and it is sensitive to the eye. 25 that's, at this point, undisputed. And I think LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 210 of 223 212 1 But where are we going with it other than that? That 2 goes to the issue, and it is fair, that obviously a pilot is 3 going to see it and is going to feel the effects of it, but 4 what else are we trying to establish here? 5 MS. ESCOBAR: We are trying to counter the defense 6 that this is accidental. So one strike would have been, but 7 knowing the effect, that it is much brighter, and being able 8 to see and strike an aircraft, which is not an easy thing to 9 do, two times, is not a accident. It is a green, green light, 10 a bright green light to which all people's eyes are most 11 sensitive because of the wavelength of the green laser. 12 THE COURT: 13 highly sensitive to the eyes. 14 MS. ESCOBAR: 15 THE COURT: Okay. You have established that green is Yes. And you can argue what you want from 16 that, but where are we going now with this when he is 17 comparing green with all other types of lasers? 18 19 20 21 MS. ESCOBAR: That's all that I want to establish with respect to the sensitivity of the eye. THE COURT: Then I think you have established it. you agree with that? 22 MS. ESCOBAR: Yes. 23 THE COURT: 24 MS. ESCOBAR: With the green, yes. 25 MS. BATEMAN: The prosecutor just brought up two So you are done with this? Do LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 211 of 223 213 1 other areas that the Court has already ruled on with respect 2 to this expert, both about whether it was visible from the 3 ground. 4 with if he were looking, and the other -- Your Honor's ruling was that it had to be qualified 5 THE COURT: I don't think he has testified to that. 6 MS. BATEMAN: 7 THE COURT: 8 MS. ESCOBAR: 9 And this was our letter, that in order for it to That was my understanding of -But I think she says she is through. Not on the green. 10 illuminate, the laser beam had to intersect the cockpit, and 11 that the person on the ground would have seen it if they were 12 looking. 13 THE COURT: 14 MS. ESCOBAR: I mean I'm not going to ask if he were 16 MS. BATEMAN: That was the Court's ruling. 17 THE COURT: 18 MS. ESCOBAR: 19 THE COURT: 15 And you are going to ask him that? looking. One at a time. If the person is looking -You know, it has to be obvious. If the 20 person is not looking, there is no way for him to say that 21 that person is going to see it. 22 MS. ESCOBAR: 23 24 25 I know, but then that's argument, it seems to me. MS. PETTIGREW: She can ask if a person is looking from the ground, would they. As long as she prefaces it like LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 212 of 223 214 1 that, isn't it appropriate? 2 THE COURT: 3 hypothetical. 4 is this object? It has to be how high is this object, how big 5 MS. ESCOBAR: 6 THE COURT: 7 MS. ESCOBAR: 8 Right, right. So that we don't just have wild -I'm not going to steer off the questions. 9 10 Just remember, it has to be a complete THE COURT: Comparing the green to any other, I think you are done with that. 11 MS. ESCOBAR: Yes. 12 MS. BATEMAN: We will see how it goes. 13 (The proceedings at the sidebar were concluded.) 14 THE COURT: All right. 15 BY MS. ESCOBAR: 16 Q. 17 aircraft, would the laser beam necessarily have to intersect 18 the window of the cockpit? 19 A. 20 to intersect the window or an open door. 21 Q. As opposed to a random? 22 A. As opposed to missing the window or the aircraft. 23 Q. And if -- and you have heard the testimony. 24 flying, there might have been a range, but up to 500 feet. 25 think it lowered. In order for a laser beam to illuminate the cockpit of an Well, to illuminate the cockpit, that implies that it has Air-1 was And given the altitudes, 400 to 500 feet, I LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 213 of 223 215 1 if the -- if a laser beam intersects the helicopter cockpit 2 between the 11:00 o'clock and 12:00 o'clock position, from 3 about an eighth of a mile away, would that -- would the 4 illumination -- and we are talking about a green laser -- 5 would the illumination of the cockpit with a green laser, been 6 visible to the individual on the ground using the laser if 7 that person was looking at the helicopter? 8 A. 9 being stopped by the helicopter if it is hitting the The person on the ground would see the beam going out and 10 helicopter and reflecting back. 11 there, they will see it back even better, but that's at close 12 distance. 13 14 MS. BATEMAN: If there is reflectors on Objection. That question calls for speculation. 15 THE COURT: Not as phrased. Overruled. 16 BY MS. ESCOBAR: 17 Q. 18 other than the window or the door, would the pilots or the 19 occupants of the aircraft see green? 20 some other part? 21 A. 22 reflection off the aircraft that didn't get in the window. 23 Q. 24 illuminate? 25 A. If the laser beam hit any other part of the helicopter If it hit the tail or Well, if it is in their line of sight, they can see a If -- if the laser beam hits the tail, would the cockpit No. The cockpit wouldn't illuminate and they wouldn't get LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 214 of 223 216 1 that bright perception like you get when you are hit in the 2 eye with a laser. 3 Q. 4 window or the door? 5 A. 6 whether it came through the window or through the door. 7 Q. 8 there wouldn't be the bright effect? 9 A. So the bright perception would require a direct hit of the What it really requires is the direct hit of the eye, And if the beam had hit any other part of the aircraft, Well, you would see it bright, as lighting up the inside 10 of the aircraft, but it wouldn't be the effect on your vision 11 as looking into the beam. 12 Q. 13 and experience and expertise in this area, was there tracking 14 of the Air-1? 15 Based upon your review of the evidence and your training MS. BATEMAN: Objection, your Honor. This calls for 16 speculation and it also calls for a conclusion impermissible 17 by Rule 704. 18 THE COURT: The objection on the first ground is 19 sustained. 20 BY MS. ESCOBAR: 21 Q. What is tracking? 22 A. Tracking is when you make an active motion. 23 tracking with a laser would be you make an active, intentional 24 motion to have the beam move at whatever you are pointing at. 25 Say, if So you are tracking along with the, say, helicopter LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 215 of 223 217 1 that you would be pointing it at or whatever you are pointing 2 at. 3 Q. 4 hour at 500 feet, and is struck first on the left through the 5 doorway, the pilot is struck, and then the helicopter makes a 6 wide move to turn to face the area from which it was struck, 7 and is then hit at the 11:00 o'clock to 12 o'clock position, 8 would the second strike have required tracking movement? If a helicopter is flying at about 110 to 120 miles per 9 MS. BATEMAN: Objection, your Honor. The same 10 grounds. 11 expertise as on the effects of lasers and into what a user of 12 the laser must have been doing. 13 And this is also going to beyond Dr. McLin's THE COURT: The objections are sustained and 14 overruled in that order. 15 weight, not admissibility. 16 17 18 19 20 21 22 On the second objection, it goes to Approach the bench. Let's clear this up so we can move along. (The following proceedings were had at the sidebar, to wit:) THE COURT: You are going to have to do it this way. He can define tracking, which he has done. You can ask him a question, such as what -- if a 23 person is trying to make a determination of what -- whether or 24 not something is being tracked, what factors play into that. 25 And then, ultimately, you are going to have to wait LEON McLIN - D Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 216 of 223 218 1 until closing argument. 2 But defense counsel is right. You can't ask was this 3 tracking or, based on this hypothetical, was the person 4 tracking, because that goes to the ultimate issue for the 5 trier of fact, not an expert witness. 6 (The proceedings at the sidebar were concluded.) 7 BY MS. ESCOBAR: 8 Q. 9 tracking means. Tracking, again, if you could define what that -- what 10 11 MS. BATEMAN: Objection, your Honor. Asked and answered. 12 THE COURT: Sustained. 13 BY MS. ESCOBAR: 14 Q. 15 aircraft is being tracked by a laser beam? 16 A. 17 aircraft would the -- the factors to consider would be the 18 duration that the laser is hitting the aircraft and the number 19 of times and for what duration that the laser hits the 20 aircraft. 21 Q. 22 with tracking? 23 A. Okay. So to determine whether a laser beam is tracking an Were there any factors present here that are consistent Well, two hits would be consistent with intentionally -- 24 25 What factors go into a determination that an MS. BATEMAN: 704 (b). Objection, your Honor. This was the subject -- This is LEON McLIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 217 of 223 219 1 THE COURT: Tighten up the question. I think he can 2 answer, I believe, the question you are seeking, but tighten 3 it up, and let's see. 4 BY MS. ESCOBAR: 5 Q. 6 tracking movement to follow, locate, and strike an aircraft? 7 A. 8 consistent with tracking. 9 Q. 10 Two hits separated by a couple of seconds would be How difficult is it to directly strike a pilot in the eye flying at 500 feet? 11 12 Are there any factors in this case consistent with a MS. BATEMAN: Objection, your Honor. This is beyond the scope of his expertise. 13 THE COURT: The foundation for this question has not 14 been laid. Sustained. 15 BY MS. ESCOBAR: 16 Q. 17 feet, what is required? 18 A. 19 at the aircraft. 20 the big empty sky. In order to strike an aircraft flying at night at 500 Well, you need to -- generally, you have to aim the laser You don't hit an aircraft just shooting into 21 MS. ESCOBAR: 22 THE COURT: 23 No further questions. Cross? CROSS-EXAMINATION 24 BY MS. BATEMAN: 25 Q. Hello again. Dr. McLin, you don't know anything about LEON McLIN - X Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 218 of 223 220 1 Mr. Bowser's health, do you? 2 A. About who? 3 Q. Mr. Bowser, you don't know anything about his health, do 4 you? 5 A. No, I don't know about his health. 6 Q. You don't know whether he has any medical conditions? 7 A. I do not. 8 Q. Do you know whether he has any condition that would affect 9 his ability to have a steady hand? Excuse me? 10 A. I do not. 11 Q. You didn't examine Mr. Bowser's eyes, did you? 12 A. I did not. 13 Q. And you don't know what his vision is like? 14 A. I do not. 15 Q. And if you knew that a person with a laser pointer on the 16 ground had poor vision for distance, wouldn't that change your 17 opinion on whether or not they could see illumination on an 18 aircraft? 19 A. 20 big the helicopter is and how close it is. 21 Q. 22 eyes either, did you? 23 A. I did not. 24 Q. Or Deputy Storar's? 25 A. No, no, ma'am. Well, depends on your definition of "poor vision," and how A lot of factors. And you didn't examine Deputy Austin's LEON McLIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 219 of 223 221 1 2 MS. BATEMAN: Okay. Just one moment. That's all for now, your Honor. 3 THE COURT: 4 Anything else? REDIRECT EXAMINATION 5 BY MS. ESCOBAR: 6 Q. 7 Generally, do the laser beams expand as they travel through 8 the air and then strike a moving target, such as a 9 helicopter -- There was some mention about expansion of laser beams. 10 11 MS. BATEMAN: This is beyond the scope of our cross-examination. 12 MS. ESCOBAR: 13 THE COURT: 14 Objection, your Honor. It goes to what can be seen. Well, I need a full question. I don't have a full question. 15 What is your question? 16 BY MS. ESCOBAR: 17 Q. 18 travels through the air before it strikes an aircraft, such as 19 one flying at 500 feet? 20 A. Yes. 21 Q. And would that expansion be visible to the person on the 22 ground? 23 24 25 Is there an expansion -- does a laser beam expand as it MS. BATEMAN: Objection, your Honor. for speculation. THE COURT: Sustained. It is calling LEON McLIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 220 of 223 222 1 BY MS. ESCOBAR: 2 Q. 3 or in a classroom, when used -- 4 A. Uh-huh. 5 Q. -- will emit a beam and make a little point on a chart; is 6 that correct? 7 A. Correct. 8 Q. Now, when that laser beam is used outside at night and is 9 aimed at a helicopter, is it just a little point that is -- How much of an -- generally, a laser beam in a courtroom 10 that appears on the aircraft? 11 A. 12 point across a room of 20 feet, it has a divergence. 13 diverges about a milliradian, so it diverges about a 14 thousandth of a distance or plus or minus factor of two or 15 three of the distance. 16 at a thousand feet, a beam would be one foot. It gets larger and larger with distance. 17 MS. ESCOBAR: 18 THE COURT: 19 MS. BATEMAN: 20 THE COURT: So say in 800 feet, the beam is -- say No further questions. Anything further? Your Honor, could we have a sidebar? Yes. (The following proceedings were had at the sidebar, to 23 wit:) 24 25 And it have a quick question. 21 22 That little THE COURT: here. We are at sidebar. The defendant isn't I LEON McLIN - RD Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 221 of 223 223 1 Do you waive his presence? 2 MS. BATEMAN: 3 MS. ESCOBAR: We are not releasing him. Depending on what the defense is. 6 THE COURT: 7 MS. BATEMAN: 8 THE COURT: 9 MS. ESCOBAR: 10 I want to know if Dr. McLin cannot be released. 4 5 Yes. That takes care of the problem. I think so. What now? You know -- we just have one more witness. 11 THE COURT: 12 MS. ESCOBAR: 13 Tomorrow morning? Yes. (The proceedings at the sidebar were concluded.) 14 THE COURT: 15 MS. ESCOBAR: No, your Honor. 16 MS. BATEMAN: Nothing further, your Honor. 17 THE COURT: 18 Any further questions of this witness? All right. Thank you. You may step down. 19 THE WITNESS: 20 THE COURT: Thank you. Ladies and gentlemen, the -- we are going 21 to take a natural break now, and that is for the end of the 22 day. 23 ready to go at 8:30, and we will be ready for you with the 24 next witness. 25 Tomorrow morning, I'm asking you to be in the jury room, Now, when you left your homes this morning, you were Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 222 of 223 224 1 on jury duty, and I guarantee you that you have become more 2 interesting people to your family and friends. 3 to know some specifics. 4 They will want And they will back you into a corner near the 5 barbeque and try to get them out of you, and you need to be 6 tough and you need to simply blame it on me, if that's what 7 you would like to do. 8 firm. 9 I'm okay with that. You cannot talk about this case. But just hold Please don't do 10 anything about this case between now and when you get back 11 here at 8:30. 12 typing in the word "laser" to see what comes up, that would 13 require us to start the case again. 14 gathering of evidence. 15 Even simply sitting there at your computer and That's independent It is strictly prohibited by law. You can't talk to anybody about the subject matter. 16 Even if they don't know you are on jury duty, it is not their 17 responsibility not to talk about it, it is yours. 18 So be very, very careful to do absolutely nothing. 19 Get some rest, relax, but don't do anything having to do with 20 the case. 21 22 23 Any questions at all? All right. We will see you tomorrow morning, ready to go, at 8:30, and have a pleasant evening. (The jury left the courtroom.) 24 THE COURT: The jury has left. 25 If there are issues after you meet and confer, let's Case 1:15-cr-00088-LJO-SKO Document 81 Filed 07/09/15 Page 223 of 223 225 1 then be here at 8:00 o'clock so we won't keep the jury waiting 2 at 8:30. 3 Any other issues? 4 MS. PETTIGREW: 5 ask to admit the blowup exhibits. 6 THE COURT: 7 MS. BATEMAN: 8 THE COURT: 9 10 Any objection? No objection. Done. (Government's Exhibits 1-b, 2-a-1, and 2-b-1 were received.) 11 MS. PETTIGREW: 12 THE COURT: 13 MS. PETTIGREW: 14 THE COURT: 15 It is 1-b, 2-a-1, and 2-b-1. All right. Thank you, your Honor. We will see you in the morning. (The proceedings were adjourned at 4:29€p.m.) 16 17 Your Honor, the government would just I, PEGGY J. CRAWFORD, Official Reporter, do hereby certify the foregoing transcript as true and correct. 18 19 20 21 22 23 24 25 Dated: 7th of July, 2015 /s/ Peggy J. Crawford PEGGY J. CRAWFORD, RDR-CRR