(1 of 324) 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 1 of 245 NO. 15-10486 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, V. BARRY LEE BOWSER, R., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DC. No. SUPPLEMENTAL EXCERPTS OF RECORD VOLUME I BENJAMIN B. WAGNER KAREN A. ESCOBAR United States Attorney Assistant US. Attorney Eastern District of California CAMIL A. SKIPPER 2500 Tulare Street, Suite 4401 Assistant US. Attorney Fresno, California 93721 Appellate Chief i Telephone: (559) 497-4000 Attorneys for Appellee Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 2 of 245 SUPPLEMENTAL EXCERPTS or RECORD VOLUME I INDEX DOCUMENT BATES STAMP . quar RECORD Order on Defendant?s Motion for Judgment of 7 Acquittal or New Trial Under Federal Rules of Criminal Procedure 29 and 33 (Doc. 84) 1-2 95 United States? Reply to Defendant?s Sentencing Memorandum and. Formal Objections 3-15 98 Defendant Barry Bowser?s Sentencing Memorandum and Formal Objections to the Presentence Investigation Report 16-24 91 United States? Sentencing Memorandum 25-27 90 . Order on Defendant?s Motion for Judgment of Acquittal or New Trial (Doc. 84) 28-29 87 Government?s Opposition to Defendant?s Motion for Judgment of Acquittal or New Trial Under Federal Rules of Criminal Procedure 29 and ?38 30-80 86 Defendant?s Exhibit A'pin? Support of Motion for udgment?of Ac?quittal or New Trial, National- Aeronautics and Space Administration (NASA), ?5Pythaigerean Theorem? 81-83 .85 Defendant?s Notice of Metion' and Motion for Judgment of Acquittal er New Trial Under Federal Rules of Criminal Procedure 29 and 33; Memorandum of Points and Authorities and Exhibit 84-113 84 Defendant?s Admitted Trial Exhibit D, Email from Kern County Sheriff Office Pilot/Deputy Kevin Austin to FBI Task Force Officer/Kern Ceunty: Sheriffs Office Deputy Joshua Nicholson, Dated October 9, 2014 . 114-15 ?75 Defendant?s Admitted Trial Exhibit C, Federal Aviation Administration, Laser Beam Exposure 116-20 75 Questionnaire Form, Completed by Kern County i (2 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 3 of 245 I Sheriffs Office Pilot/Deputy Kevin Austin Discovery; Memorandum of Points and Authorities in Support Thereof Government?sPublished Trial Exhibit 4-a, 121-28 ER 58 Transcript of Admitted Trial Exhibit 4, Recording CR 76 Statement to Bakersfield 1 Police Officer Eric'Celedon Government?s Opposition to Defendant?s Motion 124-30 7 8 to Dismiss Defendant?s Notice of Motion and Renewed 131-50 72 Motion to Dismiss Indictment; Memorandum of Points and Authorities and Exhibits Defendant?s Amended Proposed Exhibit List 151-52 71 Government?s Renewed Opposition to 153-57 63 Defendant?s Motion for Review of Personnel Files of Non-Federal Law Enforcement Witnesses Defendant?s Motion for Review of Law 158-62 62 Enforcement Witnesses? Personnel Records Government?s Witness List 163-64 59 Defendant?s List of Potential Witnesses 165-66 58 Defendant?s Notice of Motion and Motion to 167-78 56 Dismiss Indictment and for Release of Grand Jury Transcripts; Memorandum of Points and Authorities and Exhibits Defendant?s Opposition to United States? Motions 179-87 51 1'11 Lz'mjne - Order Pursuant to In Camera Inspection of Police 188 46 Records Government?s Opposition to Defendant?s Motion 189-95 45 to Exclude Expert Testimony Government?s Response to Defendant?s Discovery 196- 44 Motion and Government?s Formal Motion for 204 Reciprocal Discovery Defendant?s Amended Notice of Motion and 205-41 48 Motion to Exclude Expert Testimony; Memorandum of Law in Support Thereof Defendant?s Notice of Motion and Motion for 242-48 41 ii (3 of 324) 20 21 22 23 24 25 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 4 of 245 Case Document 95 Filed 09/24/15 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, 1:15-cr-00088 LJO SKO ORDER ON MOTION FOR JUDGMENT 0F ACQUITTAL OR v. NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33 (Doc. 84) Plaintiff, BARRY LEE BOWSER, JR, Defendant. The Court has received and reviewed the Defendant's pending alternative motions forjudgment of acquittal or new trial (Doc. 84), coupled with the Government?s opposition (Doc. 86). The matter is deemed apprOpriate to decide based upon the documents ?led by both sides in the matter. The Defendant was convicted byjury on Juiy I, 20] 5 of the soie count charged in the Indictment, aiming a laser pointer at an aircraft in violation of 18 U.S.C. 39A. The aircraft invotved was a Kern County Sherist Of?ce helicopter. Factually, there was little in dispute. The central factual issue was whether the laser hit(s) occurred by way of inadvertence (by ?accident,? as the defendant testi?ed), or intentionally (based on evidence thejurors could have deemed an admission, and/or on circumstantial evidence). Defendant ?rst argues that Government?s expert, Dr. Leon McLin, should not have been permitted to testify because he was not qualified as an expert, and that, in the absence of Dr. McLin?s testimony, the record would not support a conviction. Defense Counsel is focused on the Court?s not making an express ruling on the quali?cation of Dr. McLin. The ruling ofthe Court was obvious. When the Court moves beyond the express ruling to address what the expert is allowed to testify to, the clear and obvious inference that can and should be made is that the Court is ruling that the witness is quaii?ed in a limited way on the Court-described issues. As to the suf?ciency ofthe evidence, the legal 1 (4 of 324) 000001 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 5 of 245 Case Document 95 Filed 09124/15 Page 2 of 2 test is whether any rational trier of fact couid have found the defendant guilty beyond a reasonable doubt of all of the elements ofthe crime based on the evidence viewed in the light most favorable to the Government. United States vShari)?; 817 F.2d 1375, 1377 (9th Cir. 1987). As noted above, the record included a recorded statement by the Defendant thejurors could have deemed an admission going to knowledge and intent. The evidence was sufficient to support a ?nding of knowledge, even in the absence of Dr. McLin?s corroborating testimony. In addition, the defense alleges prosecutoriai misconduct. The first issue is whether it occurred, and if so, the effect of any misconduct. See United States Weatherspoon, 410 F.3d 1 142, i i45?6, i 150-1 (9th Cir. 2005). Where the defense objected at the timely moment, the review is for harmless error; where no such objection was made, the review is for plain error. United States Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013). The Court has reviewed each of the defense allegations on the issue of prosecutorial misconduct, Court error, Brady material violations and Impeachment matters, and finds that, even if true, no aileged misstatement (if it be a misstatement at all) or improper ruling (ifthere be an improper ruling at all) substantiaily prejudiced the Defendant. The Court further finds that the Government?s brief on the pending motions accurately and thoroughly represents the record. The defense is cautioned that convenient and out-of-context citations to the record are disturbing and inappropriate. Leaving out rulings and results to objections and side bar discussions is an attempt to mislead, and have serious ethical ramifications. The motions are DENIED. 1T 18 SO ORDERED. Lawrence J. O?Neill STATES DISTRICT JUDGE Dated: September 24, 2015 (5 of 324) 000002 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 6 of 245 Case Document 93 Filed 09/21/15 Page 1 of 10 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93 72] Telephone: (559) 497?4000 Facsimile: (559) 497?4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERTCA, CASE NO. LJO Plaintiff, v. OBJECTIONS BARRY LEE BOWSER, JR, DATE: 9/28/15 TIME: 8:30 A.M. COURT: HON. LAWRENCE Defendant. The United States of America, by and through its undersigned counsel hereby replies to the defendant?s sentencing memorandum and formal objections to the presentence report filed herein. For the reasons set forth below and contained in the government?s sentencing memorandum filed on September I4, 2015, a high?end guideline sentence of24 months is reasonable. CR. 90. I. AN DESTRUCTION OF JUSTICE ENHANCEMENT IS APPROPRIATE. The probation of?cer and the government recommend a two-level increase for obstruction of justice, resulting in a total offense level of 1 I. P.S.R. 7, 21; U.S.S.G. 3C1 .I. With a total offense level of} criminai history category IV, the defendant's guideline range is 18 to 24 months. P.S.R. The defendant objects to the two-level enhancement for obstruction of justice, arguing that he did not attempt to conceal evidence and that his statement to Bakersfield Police Officer Celedon, the responding officer, that he had given the laser pointer to? Todd,? the man in the SUV who had driven up to the fence after the laser strikes, was not material. The defendant also fails to address whether his false testimony at United States? Reply to Defendant?s 1 Sentencing Memorandum UNITED REPLY TO SENTENCING MEMORANDUM AND FORMAL landa 000003 (6 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 7 of 245 Case Document 93 Filed 09/21/15 Page 2 of 10 trial constitutes obstruction. Pursuant to the Sentencing Guidelines, the Court must enhance a defendant's offense levei by two levels the defendant willfully obstructed or impeded, or attempted to obstruct or impede, the administration ofjustice during the investigation, prosecution, or sentencing of the instant offense.? U.S.S.G. 3C I . . The obstruction ofjustice enhancement under Section .I applies to a variety of conduct including wiilful perjury, providing a materially false statement to a law enforcement of?cer, and ?destroying or concealing or procuring another person to destroy or conceal evidence that is material to an . . . investigation . . . or attempting to do so.? U.S.S.G. .1, comment, n. (D), (G). A. The Defendant Obstructed Justice by Concealing the Laser Pointer. In the instant case, the defendant concealed material evidence the laser pointer when he told Of?cer Celedon that he had given the laser pointer to ?Todd? in the SUV after he struck Air-I with the laser pointer and just prior to the of?cer?s arrival. Rfi?. 247. Indeed, his statements to Of?cer Celedon at the time of his arrest are consistent with what Pilot Austin saw after the laser strikes. 1 saw the suspect bend down toward the bottom of the gate. The driver at the same time did the same, and they passed an object. They passed it underneath the gate. R.T. Pilot Austin, who had been struck by green lasers on numerous occasions in the past, further testified that, based on his training and experience, the exchange was consistent with ?the suspect handing the laser off to the driver ofthe to avoid getting caught. RT. 134:1 1?12. At trial, the defendant testified that he had lied to Of?cer Celedon when he told him that he had given the laser to Todd.2 At the time ofhis arrest on the federal warrant in March, 2015 (about six months after the laser incident), the defendant told the FBI that he had ?mutilated? the laser in Arkansas. R.T. should be noted that Tacticai Fiight Of?cer Jeremy Storar, ?ying at an altitude of 500 feet, also testified that he thought he saw the defendant pass a bowl of food to the man in the SUV. R.T. 174. 2Speci?cally, during cross-examination, the defendant testified that he had lied to Of?cer Celedon when he asked where the laser was: Q. Did you tel! the truth to Officer Celedon about Todd? A. No, I didn't, ma'am. Q. So you tied to Of?cer Celedon when he asked you where the laser was? A. Yes, I did. R.T. 268:25, 269: 1?4. United States? Reply to Defendant?s Sentencing Memorandum (7 of 324) 000004 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 8 of 245 Case Document 93 Filed Page 3 0f 10 290:22. The defendant argues that the destruction of the laser after the incident was not obstructive, because he claims that he was not then aware that a federal investigation was pending. Although there is no evidence when the defendant may have destroyed the laser and no evidence other than the defendant?s statement to the FBI that he did, in fact, destroy it, the defendant was aware that the FBI had attempted to contact the defendant earlier this year in an effort to determine his whereabouts.3 The defendant, in fact, acknowledged to the SLO County deputy who arrested him on the federal warrant that he was aware that the FBI was looking for him. Even if the defendant was unaware after his arrest on the state charge that the FBI continued to investigate, the fact that he defendant told Officer Celedon that he had given the laser to Todd and was unable to provide any identifying information regarding Todd or Todd?s whereabouts was in itself obstructive. R.T. 247; U.S.S.G. 3Cl.l, comment, n. Even ifthe defendant had lied to Of?cer Celedon, as the defendant testi?ed at trial, his statements to Of?cer Celedon about the laser had the intended . effect of thwarting law enforcement efforts to locate the laser and thus falls within two categories of conduct which the Sentencing Commission recognizes to constitute obstruction.4 U.S.S.G. 3C1.l, comment, n. (concealment of evidence) and (G) (providing materially false statement to law enforcement). The defendant also argues that the laser pointer was ?not material to this case,? since he admitted that he had used a laser pointer. Def. Sen. Mem. at 4:3. This argument is disingenuous. The defendant lied about and succeeded in concealing the laser pointer from law enforcement and then used the absence of the laser to his advantage at trial. For example, before trial, the government provided notice to the defense that it intended to call Dr. McLin, a Senior Research Optometrist for the Air Force, to testify that a green laser is much brighter and causes greater visual interference than a red laser. Government?s Trial Brief at 7; CR. 26. Def. Motion to Dismiss Indictment at 6:24?26; CR. 56. See also Def. Mot. for Judgment of Acquittal, at i :16; CR. 84. Following this notice, the defense moved to exclude expert testimony about the iaser based on the absence of the laser and the fact that ?the strength of the laser in this case is unknown.? Def. Mot. to 3 At trial, the defendant never testified that he destroyed the iaser. In "fact, he did not recall that he had told the FBI three months before trial that he had destroyed the laser. R.T. 283:23?25, 287:14?21. 4 After the laser incident, the FBI secured a federal search warrant to search the defendant?s motor home; however, the defendant thereafter moved the motor home to another location. When the FBI finally located the motor home, it was cieaned out and the defendant was nowhere to be found. The FBI tried unsuccessfuliy to reach the defendant at the beginning of this year, but the defendant, aware that the FBI was looking for home, evaded detection until his return from Arkansas to California in March after he had someone check for outstanding warrants. United States? Reply to Defendant?s 3 Sentencing Memorandum (8 of 324) 000005 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 9 of 245 Case Document 93 Filed 09/21/15 Page 4 0f 10 Exclude Expert Testimony, 7: I 9, 7:26-28, 8:1 1-l2; CR. 43; see also Def. Mot. for Judgment ofAcquittal, 1 123-4; CR. 84. [fit was material enough to his defense to argue to exclude evidence based on the absence of the laser, it is no less material now that the defendant obstructed justice by his conduct in concealing the laser pointer from law enforcement. Moreover, had the laser pointer been available to law enforcement, an examination of the laser could have been conducted to determine the power and divergence of the laser beam (which would have been relevant to assessing the defendant?s knowledge, intent, and absence of mistake) and its potentiai for visual interference (which would be relevant to sentencing). In addition, had the laser pointer been available, evidence of the danger warning would have been reievant to assessing culpability and weighing the Section 3553(a) factors? B. The Defendant Obstructed Justice by Testifying Falselv at Trial. The defendant?s false testimony at trial also qualifies for the obstruction ofjustice adjustment. Before imposing an enhanced sentence under Section 3C1 .1, the Court must make an independent factual finding that the defendant has committed perjury. A witness commits perjury by giving false testimony under oath on a material matter with the intent to deceive, as opposed to merely being confused, mistaken or suffering memory lapse. United Slates v. Dunnigan, 507 US. 87, 94(1993). The Dunnigan Court explained: Of course, not every accused who testifies at trial and is convicted will incur an enhanced sentence under ?3 .l for committing perjury. As we have just observed, an accused may give inaccurate testimony due to confusion, mistake or faulty memory. In other instances, an accused may testify to matters such as lack of capacity, insanity, duress or self-defense. H[is] testimony may be truthful, but the jury may nonetheless find the testimony insufficient to excuse criminal liability or prove lack of intent. Id. at 95; see, Uni/ed States v. Dobbs, 1 F.3d 152, 155 (1 1th Cir. 1994) (where a defendant's testimony was fundamentally inconsistent with testimony of a government witness on a material matter and the trier of fact accepts the testimony of the government witness, an obstruction enhancement was proper). 5 FDA regulations require a warning label on laser pointers. The type of warning required varies depending on the level of power emitted by the laser device. A particularly powerful laser device might be required to contain a warning label that advises to avoid exposure to not only direct but scattered laser radiation. Laser pointers must also be accompanied by identifying and certifying labels and instructions for safe use. 21 C.F.R. 1040.10, 1040.1 1. United States? Reply to Defendant?s Sentencing Memorandum (9 of 324) 000006 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 10 of 245 Case Document 93 Fiied 09/21/15 Page 5 of 10 In the instant case, there is ample support for finding that the defendant obstructed justice given the defendant?s deliberately false statements, which cannot be attributed simply to mistakes. Most signi?cantly, the defendant obstructed justice when he attempted to exculpate himself by testifying that he did not intentionally aim the laser at Air-l. R.T. 267:5-7. At triai, the defendant testified that, when he was playing with his dog, he: Put [the laser pointer] up in the air, and when [he] put it up in the air, [he] heard something, and brought it back turned. When I heard it, I turned and I realized what it took a second for me to realize what that was, for me to recollect it was a helicopter, and when I realized it was a helicopter, I came right straight back down out of the air with it. R.T. 279:20-25, 280:1?3. This explanation was in direct conflict with the government?s evidence that the laser beam deliberately tracked Air-1 between the two strikes to the aircraft at two different locations?? one to the side of the pilot and one head on to the cockpit window and that the defendant immediately acknowledged striking the helicopter when Of?cer Ceiedon obliqueiy asked the defendant if he knew why the officer had responded to the Moreland property? Before trial, at the time of his arrest on the federal case, the defendant also attempted to excuipate himself by suggesting that the laser strikes were accidental; however, at that time, he offered a different explanation for the laser strikes. He did not tell the FBI, as he testi?ed at trial, that he was pointing the laser in the air and brought it back down accidentally striking the helicopter. Instead, he told the FBI that he had been aiming at a radio tower to see how far the laser would reach. Def. Opp. To United States? Motions in Limine, at 2:21-26; CR. 51 (defendant told FBI in a recorded statement that he aimed the laser pointer at a 6 The defendant responded to Officer Celedon?s open-ended question, ?Why did we come out here tonight?" as follows: Because I was, got a laser pointer working and pointed it at a, a helicopter. Gov. Ex. 4-a at 1:24-15. The defendant also advised the of?cer that he had pointed the laser at the helicopter ?to see if it even worked.? Gov. Ex. 4-a at 2:25-27. He further stated, ?When the helicOpter flow by I pointed it towards it.? Gov. Ex. 4-a at 3:1-2. When pressed by Of?cer Celedon, the defendant claimed that he did not see the laser actually hit the helicopter. However, this statement is contradicted by Dr. McLin?s testimony that a person on the ground would have seen the laser light up the cockpit had he been looking in the direction of the aircraft. R.T. 215. The defendant?s claim to Of?cer Celedon that he did not see the laser strike the helicopter is also directly contradicted by his own pretrial statements to the FBI that he saw the laser hit the helicopter, as discussed at footnote 7 herein. United States? Reply to Defendant?s 5 Sentencing Memorandum (10 of 324) 000007 27 28 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 11 of 245 Case Document 93 Filed 09/21/15 Page 6 of to red light on top of a radio tower and turned right into the helicopter, striking it with the beam). After the defendant?s testimony on direct that he had been aiming the laser in the sky and brought it back down when he heard the aircraft, FBI TFO .iosh Nicholson testi?ed on redirect about the defendant?s prior inconsistent statements about the incident: [The defendant] just described that he was pointing towards the [radio] tower and that he had turned the tower was about half mile away, halfmile to a mile, and he had tumed when he heard the helicopter. R.T. 293:2l?24. According to TFO Nicholson, ifthe defendant had in fact been aiming at a radio tower, the only radio tower about a half mile away from the Moreiand property was a radio tower referenced at trial as Tower 2. If the defendant had been aiming the laser at Tower 2, the angular differential between Air~l and that radio tower was signi?cant. As noted in the government?s opposition to the defendant?s post?trial motions for acquittal, the difference between the angles of the hypotenuse for Air?1 and Tower 2 was about 34 degrees. Had the defendant been aiming at Tower 2, this differential would have required a deliberate movement of the defendant?s arm to strike the helicopter. See Government Exhibit 5, attached to Government?s Opposition to Defendant?s Motion for Judgment of Acquittal or New Trial; CR. 86. This differential, along with evidence of tracking and his failure to mention to Officer Celedon that he was aiming the laser at a radio tower, substantially undercut the defendant?s argument that the laser strikes were accidental. The defendant?s own inconsistent versions of the laser incident, juxtaposed against the government?s internally consistent and strong evidence that the strikes were intentional and not the product of an accident or mistake, establish the falsity of his testimony, which was ultimately rejected by thejury in finding him guilty. 7 Clearly, the defendant?s perjurious trial testimony attempted to in?uence the ultimate issues 7 The record contains other defense inconsistencies, which constitute obstructive conduct. For example, at trial, the defendant testified that he ?had to screw? or ?twist? the laser together to get it to work and could only turn the laser on by ?twisting it together.? R.T. 281 281 :l6-17 This testimony is contrary to his pretrial statements to TFO Nicholson indicating that the laser was operated by means of a push button. R.T. 281 ~82, 291. A laser device equipped with a push button would be easier to turn on and off than one requiring a twisting action to Operate. Considering that seconds elapsed between the first and second strike, how the device is operated bears on intent and is thus material. The defendant also told Of?cer Celedon that rbefore ?Todd? arrived he was in the motor home sleeping and was awakened only as a United States? Reply to Defendant?s 6 Sentencing Memorandum (11 of 324) 000008 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 12 of 245 Case Document 93 Filed 09/21/15 Page 7 of 10 presented for the jury's resolution; as such, it was material and supports a two-level increase for obstruction of justice. See, UnizedSIates v. Penq?or, 91 F.3d 157 (9th Cir. 1996) (unpub) (af?rming application of obstruction of justice enhancement where defendant providing ?conflicting (and incredible) accounts? of the offense); see also United States v. Lewis, 1 15 F.3d 1531, 1537-38 (1 1th Cir. 1997) (holding enhancement for obstruction of justice warranted where inconsistencies in defendant?s testimony coupled with contradictions with other witnesses' testimony supported conclusion that defendant intended to testify about material matters); United States v. Tapia, 59 F.3d 1 137, 1 144?45 (1 1th Cir. i995) (defendant's testimony which conflicted with testimony of government witness properly formed basis for ?nding that defendant had committed perjury and enhancement was proper); United States v. Ge?ard, 87 F.3d 448, 453 (1 1th Cir. 1996) (finding that defendant's denials, poor recollection and false testimony, in light of all credible evidence to the contrary/justified perjuly finding and enhancement for obstruction of justice). II. A HIGH-END GUIDELINE SENTENCE IS REASONABLE. The probation of?cer and the government recommend a high-end guideline sentence of 24 months based light of the severity of the offense, the defendant?s long criminal dating back to i985, including a history ofviolent conduct, and the need to providejust punishment, to afford adequate deterrence, and to avoid sentencing disparity. P.S.R. 1139; 18 U.S.C. 3553(a). The defendant argues for a below~guideline sentence of six months in custody with credit for time served and placement at Westcare for ninety days. Def. Sen. Mem. at 5. Such a sentence would constitute a 75% reduction from the high?end of the guidelines and a 66% reduction from the low-end of the guidelines. Such a significant departure is unwarranted in this case. The probation officer speci?cally considered factors that might warrant a downward departure or variance in this case and found none. P.S.R. 18-21. The falsely of the istory result of Todd ?hollering at the gate.? Gov. Ex. 4-a at 2:17, 2:15. I-Iis statement to Of?cer Celedon is in direct con?ict with the observations of Tactical Flight Of?cer Jeremy Storar who testified that he saw defendant go under the awning where the motor home was located after the laser strikes and remain there thirty seconds to a minute before emerging again to meet with the occupant of the SUV at the west gate of the fence, where an exchange occurred. R.T. 172?73. This observation coupled with the fact that the defendant did not appear drowsy or sleepy when he dealt with Officer Ce ledon indicates that he not only lied to Officer Celedon about Todd, as he admitted at trial, but lied to the of?cer about what he was doing Todd?s arrival. RT. 258. United States? Reply to Defendant?s Sentencing Memorandum the before 000009 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16?1, Page 13 of 245 Case Document 93 Filed 09/21/15 Page 8 of 10 government concurs with the probation of?cer?s conclusion. The defendant argues that, aside from ?one lie? to Of?cer Celedon about the whereabouts of the laser, the defendant was otherwise cooperative. Def. Sen. Mem. at 2:15. As discussed above, the defendant lied more than once in this case. He consistently lied before and during trial about his intent, claiming he did not intend to point the laser at the helicopter and denying he knew that it actually struck its He also li about having slept before ?Todd? arrived. He also lied before and at trial about how and where he aimed the laser beam. The defendant?s false statements, in totality, constitute obstructive conduct which does not warrant the extreme downward departure/variance that the defendant now seeks. The defendant also argues that his drug addiction is a mitigating factor. However, in considering the Section 3553(a) factors, the probation officer speci?cally considered and rejected the defendant?s ?ongoing drug use? as a mitigating factor, since it has resulted ?in the victimization of others and continued use incarceration and program participation.? P.S.R. 20. As the probation of?cer noted, ?most of his criminal record consists of drug-related crimes or financial crimes to get money for drugs.? P.S.R. 16. Moreover, he has been given opportunities in the past to address addiction issues but failed to avail himself of such opportunities. When he was paroled for his forgery conviction in 2005, he was released to a one-year residential drug treatment program and was required to participate in substance abuse counseling. P.S.R. 16. While on parole, he stole another man?s credit card and used that credit card to obtain $l75 worth of methamphetamine. P.S.R. 1 1. When he was apprehended for the crime, he was in possession of a syringe with 20 units of amphetamine, a spoon, and a plastic baggie containing 2.40 grams methamphetamine. When he was caught, the defendant admitted it was wrong to take the credit card and sought leniency by seeking a drug treatment program. P.S.R. 1 1; see also Parole Revocation Report, attached hereto as Government Exhibit A. It seems the defendant has a history of using drug addiction as an excuse for criminal behavior. The 3 in contrast, in his recorded statement to the FBI, the defendant readily acknowledged that ?the beam hit the helicopter? and said, actually seen it hit the helicopter, and was like, ?Oh, wow . . . the green dot hit it, yeah.? Def. Opp. To United States? Mot. in Limine, at 2:24?26, at 3:i 1, 3:22; CR. 51 United States? Reply to Defendant?s 8 Sentencing Memorandum ed despite 000010 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 14 of 245 Case Document 93 Filed 09/21/15 Page 9 of 10 government agrees with the probation of?cer that the defendant?s drug use is an aggravating factor, which, when considered in conjunction with his criminal history, the severity of this offense, and his obstructive conduct, justi?es a high?end guideline sentence. PSR. 1188. Indeed, it is unclear whether the defendant currently has a drug addiction problem. There is no evidence that the defendant was under the influence of alcohol or a controlled substance at the time of the laser incident. R.T., 251 :1 1-14. At trial, the defendant successfully moved to exclude as prejudicial the last portion of his recorded statement to Of?cer Celedon. In the excluded portion of the statement, Celedon, as part of a standard admonishment, advised the defendant not to try to smuggle drugs into thejail. The defendant responded, ?Yeah, i quit that stuff years ago, bro.? R.T. 6:14. in light of the foregoing, while drug treatment may be warranted during or following incarceration, it should not be imposed in lieu of incarceration. A high-end guideline sentence would also serve to avoid sentencing disparity, as noted in the government?s sentencing memorandum. See United States? Sen. Mem. at 2; CR. 90. Finally, in response to the defendant?s claim that ?the general public is still generally [un]aware 0f the dangers and risks posed to pilots? as a result of laser strikes, the laser illumination problem in this district has been widely publicized locally, regionally and nationally. Def. Sen. Mem. at 5:8-9; cf. see, Wall Street Journal article, ?Laser-Pointer Strikes Menace Pilots,? (8?27?1487; Arstechnica online article, ?Blinding light: The US crackdown on not-so?harmless laser strikes, (5?2 l? 14) at harmless-laser-strikes/; Bakersfield Californian article, ?Arrests made in joint laser strike search,? (3-16-14) ABC news af?liate, Bakersfield internet posting, ?Laser strikes: Bakers?eld defendant pleads guilty, Clovis defendant sentenced,? (5?1244) at Bakersfield Californian article, ?Couple Faces Federal Charges for Shining Laser at Helicopter? (l2? 7-07) at United States? Reply to Defendant?s Sentencing Memorandum (14 of 324) 000011 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 15 of 245 Case Document 93 Filed 09/21/15 Page 10 of 10 ttnm?hvww.bakers fieldcom/N ews/ 2007/ 12/1 ina? laser-at? This district and Bakers?eld, in particular -- has been plagued by numerous laser strikes on aircraft. As noted in the government?s original sentencing memorandum, last year there were 150 reported incidents of laser strikes on aircraft in this district, with the majority in Bakers?eld and Fresno. Seventeen individuals have been charged with federal laser crimes in this district. Thirteen have been convicted. The other four cases are currently pending. Seven of the charged defendants were residents of Bakers?eld and were charged as a result of laser strikes involving Kern County Sheriff?s Of?ce heiicopter, Air?l. This district was one of twelve sites chosen to launch a public awareness campaign, initiated by the FBI, in February, 2014 m- six months before the defendant?s lasing of Air-i. See The campaign expanded on a national level in June, 2014, and aimed to focus attention on the growing problem of laser strikes on aircraft. See laser-threat?to?aircra?. The campaign kicked off in February, 20M, with press conferences around the country, including one in Sacramento, and involved public service announcements and the offer of a $10,000 reward for information leading to the arrest of persons targeting aircraft with lasers. In this district, the campaign was well-publicized and the attached flyer was posted on electronic billboards. See FBI Flyer, ?Don?t Let a Prank Lead to Prison,? attached hereto as Government Exhibit B. The objective of the campaign was to raise awareness about the dangers of laser strikes on aircraft, deterring the behavior and encouraging reporting of incidents to law enforcement. The campaign was in place at the time of the laser incident in this case. IV. CONCLUSION Based on the foregoing, as well as the arguments contained in the government?s original sentencing memorandum, it is respectfully requested that the Court impose a sentence of 24 months. BENJAMIN B. WAGNER United States Attorney BAYLEIGH PETTIGREW Special Assistant United States Attorney ls/ Karen A. Escobar KAREN A. ESCOBAR Assistant United States Attorney Dated: September 21, 2015 United States? Reply to Defendant?s Sentencing Memorandum (15 of 324) 000012 (160f324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 16 of 245 Case Document 93?1 Filed 09/21/15 Page 1 of 2 a ?rm: as 2mm amount: numeroqu CHARGE summevoqmw mmnasoue NC mm - IS got-unau- 'rn . CE BOARD OF TERMS - me-F?m mam-us. our:on motor mm PD mum co JAIL MW mm! AGENCY AWE [Awmm? Wl'?i A Mama am? ammemmcv HATE Ti .. .. Ella-05- Changiog Residence without 4. Possession of Methamphetamine 776 inf PEECSD (022 I I: S. 5. Ba 5813 scarf-omens I nag EVIDEICE: CHARGE 1: 8-03?04, Agent of Record (ADmettempted to locate subject at his. residence of record. An eviction notice was posted on the front door stating residence was to be vacated by 7-49-04. AOR enter residence confirming vacancy. AGE called subjects employer and left message for subject to contact agent. 0n subject left message on 3103's voice mail stating he was working; no other centect information was left. cannon 2,3.4553: pr: 8?09-04, Venture Police were dispatched to a call regarding a fraud. Police made contact with the victim as he was confronting ?cwser over the theft of a credit card. The victim stated there were 7 fraudulent transactions on his credit card totaling $487.05. The victim stated he had lost his wallet while work and had asked his co? workers, including Boweer if they had- found it. Bowser was suspected due to the fact that several long distance phone calls were charged on the A card and one of the phone nun?oers was to Bowser's brother?inwlaw. Bowser admitted to goiice he had taken the credit card from the victim's wallet. Bowser stated lice charged a room at the Country Inn 5: Suites and signed the victim; ne'rpe on? the reocipt. The following day Bowser gave the credit gard' to C'imiidenti?ied male in- catchange for $175.00 worth of search of Bowser's vehicle was conducted discovering a syringe with 30 units of amphetamine, a spoon. and a plastic baggie containing '2540 gi?njs of. Methamphetamine. Subject was arrested the Ventura County Jail without incident. emcee.qu stated he Fmew it was wrong to take the credit card. oentg i?afdrug treatment program. - i In 3 ?chi??soh. Venture PD 113845. Officer Hunger. Venture P9135323. calm-1' Calse wags referred to the District Attorney for prosecution: Subtith hag color: date set for 8?19?04. (Ir? Police report#04-12128. ?meme woman - 30915321: BARRY I TESQSS Page I on U-S- v- Barry Lee Bowser Government Exhibit A Supplemental Discovery 1:1 LJO 73 000013 (17 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 17 of 245 Case Document 93?1 Filed 09/21/15 Page 2 of 2 - SU MMA-RY OP PAROLE ADJUSTMENT 'Cbcmi-armn 'f - - - ?1 . ATTACH LEGAL sums sun/muggy memes 0W T66966 . BOWSER, BARRY 8?17-04 . . ,11 razor: - Possesszon of Controlled Subs tancc H511377 (A) 11-2?-95 SIEMCOWMOHISIOF HIM I INITIAL 95!! RamaAnti-Narcotic Tesiting . 2. Participate in drug treatment as directed by H?gr: . rmanmwg "Wu?mun sun-om SQURCEOF WENT lm??s ADDRESS wars Mm?? We" ?it-O Full-Time Compressor . 10-05?03 Laborer Employment EVALUAWON - Covert!? [mind ?'crn data of 30 upon. Judaic positives-mi aqmivc haul: u?hll Minn: 8116 nomkyma nibble in Jim arm-oath. (kn; prop-mu. lu?patkm or calm cw. Bowser is a 41-year-o;ld term-r committed for Forgery. His criminal history dates 33an to 1985 with entries/convictions for: Hitanun, obscene-{Threatening phone call. Under influence of CS. Poss of cs, Burglary and (2qu glnjury spouse. It appears lam-user gangotm refrain from criminal' behavior that p1?c_cg ?55: [the 2 timeTems is If. a. good cause 15 made a return to custody is recomendedBOWSER, BARRY I PageZoni I v. Barry Lee Bowser Supplemental Discovery LJO 79 000014 AIMING A mam AT AN IS A FEDERAL CRIME BROUGHT LINE PILOTS ASSOCIATION. mm. Gove t?324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 19 of 245 Case Document 91 Fiied 09ll4/15 Page 1 of 5 HEATHER E. WILLEAMS, BAR #122664 Federal Defender JANET BATEMAN, CA Bar #241210 ERIN SNIDER, OR Bar #1 16342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, CA 93721-2226 Telephone: 559.487.556l/Fax: 559.487.5950 Attorney for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNEA UNITED STATES OF AMERICA, Case No. 1:15-cr-00088 LJO DEFENDANT BARRY SENTENCING MEMORANDUM AND FORMAL OBJECTIONS TO THE Plaintg'f? PRESENTENCE INVESTIGATION I VS. BARRY LEE BOWSER, JR, REPORT Defendant. Date: September 28, 2015 Time: 8:30 pm. Judge: Hon. Lawrence J. O?Neill SENTENCING MEMORANDUM Mr. Bowser is an older man in poor health. He has spent his iifetirne abusing his body with drugs and with daredevil sports. He has crashed his bones in accidents and has ruined his back with labor. He has lost many ofhis teeth, has been diagnosed with Hepatitis C, and has hearing loss. He also suffers from asthma and has chronic obstructive pulmonary disease which causes, among other things, serious shortness of breath causing him to need a cane. His lungs are often filled with ?uids and he is in pain. On Friday, September 1 l, 2105, the Fresno County jail deputies transported him to the hospital for a chest x-ray; as ofthis filing, Mr. Bowser has not yet teamed the results of these most recent tests. His recent record reflects his decreased energy and aging body. The PSR makes plain that he has had a long life of drug-reiated crimes and addiction-reiated bad behavior. However, (19 of 324) 000016 (20 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 20 of 245 Case Document 91 Filed 09/14/15 Page 2 of 5 despite his continuing struggle with addiction, he has slowed down. Aside from this offense, he has not had a new conviction in over ten years. Mr. Bowser has admitted his responsibility from the moment he realized what had happened. The instant he realized the helicopter was reacting toward him, he understood that he had done something wrong and immediately stopped. He did not, as this Court has seen in other cases, continue to aim his laser at the helicopter as it approached or orbited. He stopped. When the Bakers?eld Police Department officers arrived, he was cooperative with them. He did not run or hide. He unlocked the gate for them and admitted he had been the one with the laser pointer. He apologized. He admittedly lied to BPD about where the laser pointer was at the time of his arrest. Mr. Bowser cannot explain why he toid this lie when he was already under arrest and had already confessed to having used the laser pointer. He could not explain it to the FBI when he voluntarily admitted to the lie?without prompting?nor could he satisfactorily explain it to the jury. He thinks that he was simply scared and gave a panicked response. Aside from that one lien?which he voluntarily corrected the next time he was under questioning?Mr. Bowser was cooperative and consistent. He has never denied using the laser pointer. He has been, and continues to be, apologetic. As Mr. Bowser?s letter to the Court reveals, this case has already cost him everything. Mr. Bowser was arrested in his rented U-Haul truck near the end of his move back to California. All of his possessions were in it and they are all now gone. More importantly, law enforcement took his dog Bowser, his best friend, to a shelter in San Luis Obispo County on the night of his arrest on the federal warrant. His nearby famin already had multiple dogs in their home and was unable to take Bowser in. Bowser was, at times, Mr. Bowser?s only friend and gave his life some routine and purpose. The loss of his companion has caused Mr. Bowser great heartache. Mr. Bowser?s issues moving forward will not relate to laser pointers. Rather, he will struggle with staying sober and he will suffer from poor health. He needs treatment and a safe place to stay. He would iike the opportunity to try a treatment program. Accordingly, the Bowser, Barry: Sentencing Memorandum Forms] -2- Objections 000017 u?s?n?n?n?nu?n 16 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 21 of 245 Case Document 91 Filed 09/14/15 Page 3 of 5 defense requests that Mr. Bowser be permitted to go to WestCare for its 90~day treatment program before transitioning back to the community. FORMAL OBJECTIONS I. The Obstruction Enhancement Does Not Apply. Mr. Bowser objects to the application of the enhancement for obstruction of justice. Application Note does not apply. Mr. Bowser admittedly destroyed the laser pointer because he believed it was the safe, smart thing for him to do so that further trouble to him or pilots or anyone else did not come from use of the laser. The state had declined to bring charges against him, and he believed there was no criminai case. He did not attempt to conceal evidence. He knew, though, that he had been arrested and taken to jail, he had been made aware that the incident had been dangerous for the pilots, and he believed that possessing the iaser was a bad idea. Ninth Circuit case law is cleari ?ifa criminal investigation is not actually pending, then steps taken to conceal the facts do not amount to an obstruction of justice.? United States v. Gilchrist, 658 F.3d l97, 1205 (9th Cir. 201 see also United Slates v. Rising Sun, 522 F.3d 989, 992, 995?96 (9th Cir. 2008) .1 enhancement does not appiy where a murder defendant destroyed evidence and threatened witnesses after the killing but before an investigation into the killing had begun). Likewise, Application Note also does not apply. Mr. Bowser?s statement about the laser pointer to BPD was not material and did not significantly obstruct or impede the investigation or prosecution. The BPD of?cer made an arrest upon Mr. Bowser?s immediate and COOperative confession that he had been the person using the laser pointer. The BPD did not conduct a more thorough interrogation of Mr. Bowser aside from the three~minute recording in the patrol car. The BPD did not obtain a search warrant at any point in time. When later arrested on the federal warrant, Mr. Bowser made the same admissions to the FBI, but aiso voluntarin corrected the spontaneous statement he had made to BPD about the location of the laser pointer. The FBI conducted no follow up questions about the laser, aside from asking how it came into Mr. Bowser?s possession; the agents did not even ask him to describe the laser pointer, but he offered that it looked like a pen. The federal prosecution Bowser, Barry: Sentencing Memorandum Formal Objections (21 of 324) 000018 (22 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 22 of 245 Case Document 91 Filed Page 4 of 5 persisted without the laser pointer and thejury heard Mr. Bowser admit that he had lied at the scene to BPD. At no point was there ever any dispute that he had used a laser pointer. The laser pointer was not material to this case. Mr. Bowser readily admitted to the arresting BPD officer, to the San Luis Obispo County Sherist Deputy who arrested him on the federal warrant, to the FBI, and during his direct testimony at trial that he had used a laser pointer. His admissions were all recorded. Application Note 5 provides examples of where the enhancement should not apply, including: (A) providing a false name or identi?cation at arrest; (8) making false statements (not under oath) to law enforcement of?cers; and (D) avoiding or ?eeing from arrest. Likewise, Application Note 4(9) makes an exception for actions taken ?contemporaneously with arrest (cg, attempting to swallow or throw away a controlled substance)? Mr. Bowser?s statement about the laser pointer to BPD was analogous to giving a false name or getting rid of drugs in his possession. If Mr. Bowser?s nonsensical lie upon his arrest quali?ed him for the enhancement, then the application would apply in most cases. Most cases include a defendant who, cut of fear or panic or even calculation, tells a lie to police upon initial contact or during interrogation. This would include a DUI suspect denying he had had more than ?one beer? or a suspect denying that he was in possession of drugs. It could include people who go from denying knowledge of drugs smuggled in their car to later providing substantial assistance to the government. Mr. Bowser?s initial, brief lie to the arresting of?cer was an immaterial statement to law enforcement while he was not under oath. Thus, the two?level enhancement for obstruction of justice does not apply, and the base offense level should be 9. II. The High End of the Applicable Guideline Range is Inappropriate. initially, the United States Probation Of?cer believed Mr. Bowser?s Criminal History Category to be [11. She recommended that the high end of the range (18 months) was an appropriate sentence to take into account Mr. Bowser?s old convictions, that is, convictions remote enough in time that the United States Sentencing Commission specifically discounts them for categorization purposes. She concluded that an above?guideline sentence was not appropriate. Bowscr. Barry: Sentencing Memorandum Formal -4- Objections 000019 (23 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 23 of 245 Case Document 91 Filed 09/14/15 Page 5 of 5 the new range (18 months) is equal to her initial recommendation. CONCLUSION aware of the dangers and risks posed to pilots. Mr. Bowser?iike the defendants in the of laser pointers. a three~year period of supervised release to follow. Dated: September 14, 2015 HEATHER E. WILLIAMS Federal Defender Janet Bateman JANET BATEMAN ERIN SNIDER Attorneys for Defendant BARRY LEE BOWSER, JR. Bowser, Barry: Sentencing Memorandum Formal ObjectiOns Upon the government?s objection, the USPO revised Mr. Bowser?s criminal history calculation to a Category lV, but maintained the high?end recommendation (24 months). The defense submits that Mr. Bowser?s reievant criminal history is well accounted for in Category IV. The reasoning for initially recommending the high end, and notably not above the range, should no longer apply given the increase in category, particularly where the low end of Despite this Court?s familiarity with laser offenses, the general public is still generally Coleman/Rodriguez case, the Garden/airs case, and likely every other defendant prosecuted for such an offense?certainly now knows potential consequences involved and poses no risk of reoffending. He is interested in contributing to a public information campaign about the dangers Based on the foregoing, Barry Bowser respectfully requests that he be sentenced to six months of custody, with credit for time served, and to a 90-day in-patient term at WestCare, with 000020 (24 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 24 of 245 Case Document 91?1 Filed 09/14/15 Page 1 of 4 United States v. Barry Lee Bowser, Jr. l:lS-cr-00088 Mr. Bowser?s letter to Judge O?Neill Exhibit A 000021 (25 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 25 of 245 Case Document 91?1 Filed 09/14/15 Page 2 of 4 September 14, 2015 Dear Judge O?Neill: My name is Bany Bowser, 1 will be coming before you on September 28, 2015. I have been convicted of shining a laser at an aircraft. 0k, ?rst of all I want to apologize to the Courts, to you, and most important the pilots of the aircraft. ldo apologize. I never meant no harm to any one for sure. I was de?nitely uneducated about lasers. I am now well educated. Since my incarceration I have lost everything I owned, my home, my job, my clothes, even/thing, even my best friend most important my dog. He was my life, he was my therapy dog. With his loss, I feel I have paid dearly already. I have received certi?cates. I have one here for you to see so you know I am being honest with you. I have been doing bible study. I would like to ask you for a program. A chance to get my life back. I am a Dad, a a Grandpa. Please let me show you all I am ?nally changed. Just give me a chance to prove it please. I have always been given jail time, can I please try a program? Thank you, your Honor, please I ask you for leniency during 39% Dinar?15' With reSpect: Barry Bowser 000022 (26 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 26 of 245 Case Document 91-1 Filed 09/14/15 Page 3 of 4 United States v. Barry Lee Bowser, r. 1:15-cr-00088 LJO-SKO Mr. Bowser?s Certi?cate Exhibit 000028 (27 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 27 of 245 Fiied 09/14/15 Page 40M Sp EL TEA CERHMCAT This Mat BARRY BOWSER 15a: successfully compiaz?ed the GOSPEL ECHOES TEAM SCHOOL OF CORRESPONDENCE BIBLE STUDIES BASIC COURSE 1. God's Great Love 2. Growing in the Christian Life 3. Sharing Your Christian Faith 4. Growing Toward Maturity [bar-s AUGUST 30, 2015 FLORES 356$: czaqu ?nd-ma?a?: 000024 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 28 of 245 Case Document 90 Filed 09/14/15 Page 1 of 3 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 440! Fresno, CA 9372] Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. LJO Plaintiff, UNITED SENTENCING MEMORANDUM v. DATE: 9/28/15 BARRY LEE BOWSER, .IR., TIME: 8:30 A.M. COURT: HON. LAWRENC J. Defendant. The United States of America, by and through its undersigned counsel hereby submits this sentencing memorandum and formal objections to the presentence report ?led herein on September 8, 2015. CR. 89. 1. STATEMENT OF FACTS The basic facts are set forth in the presentence memorandum. In addition, the government makes the following spelling correction. (I) PSR 115: The laser strikes occurred within a critical descent (not ?decent?) flight zone of Meadows Field Airport. SENTENCING RECOMMENDATION The probation of?cer recommends a high?end guideline sentence of 24 months based on a TOL 1 and CI-IC IV. The probation of?cer found no basis for a downward departure or variance. United States? Sentencing Memorandum 000025 24 25 26 27 28 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 29 of 245 Case Document 90 Filed 09/14/15 Page 2 of 3 The government agrees with the probation officer?s recommendation, particularly in light of the following: the severity of the offense, which caused the Kern County Sheriff?s Office Pilot Kevin Austin to suffer flash blindness and irritation lasting several hours and had the potential to produce catastrophic results, PSR. ?ll85; (2) the defendant?s obstructive conduct (destruction of the laser and false testimony), PSR. 1122; (3) the defendant?s criminal history, including history of recklessness and violence in and outside of prison (convictions for battery, obscene/threatening phone calls, spousal abuse; arrests for hit and run, battery, torture, spousal abuse, firearms offense; prison disciplinaiy action for ?ghting) and af?liation with the Peckerwood gang, 33-34, 39, 41-44, 49, 87. ARGUMENT A high-end guideline sentence would have a signi?cant deterrent effect. From 201 to 2014, there have been over 16,000 laser illumination incidents reported to the Federal Aviation Administration. Airports in the Eastern District of California reported approximately 150 laser strikes in 2014. This year, there have been more than 40 reported laser strikes. Bakers?eld reports the second highest number, after Fresno. The number of reported laser illumination incidents is particularly alarming, since ?the misuse of laser devices poses a serious threat to aviation safety.? See hazards webpdf Aviators, such as helicopter pilots, are particularly vulnerable to laser illuminations when conducting low-level flight operations at night. 1d. A high-end guideline sentence also takes into account the severity of the offense. The defendant used a green laser pointer to track and twice strike a Kern County Sheriff? 3 Of?ce helicopter. P.S.R. 115. The laser beam caused visual interference of the pilot and disrupted Air-1?s response to a call for assistance involving a naked man armed with a firearm. The pilot also experienced flash blindness and pain lasting several hours that felt like sand in his eyes. A high~end guideline sentence would avoid sentencing disparity. Since the Ninth Circuit?s pronouncements in Garden/me and Rodriguez, one defendant, Timothy Earl Wilson has been sentenced in this district. In United States v. Wilson, Case No. l:l4cr070 Senior District Judge Anthony W. ishii sentenced Wilsonmonths in custody following his guilty plea. Like this United States? Sentencing Memorandum (29 of 324) 000026 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 30 of 245 Case Document 90 Filed 09114l15 Page 3 of 3 defendant, Wilson aiso struck Air-1 twice with a powerful green laser pointer.1 Unlike this defendant, Wilson entered a guilty plea and did not obstruct justice or destroy evidence. Although Wilson?s criminai history score was greater, his criminal history did not include as many convictions and arrests for violent crimes or offenses involving reckless conduct. The recommended sentence is also quite ienient in Eight of pre?Gardenhire sentences that have been imposed on laser strike offenders in this district and were found to be reasonabie. See, United States v. Jared James Dooley, LJO (laser defendant with ill and methamphetamine addiction sentenced to low-end guideline sentence of 24 months following guilty plea); United States v. Charles Conrad Maha?ey, lzl3cr181 LJO (laser defendant with Ci?lC Ii sentenced to low-end guideline sentence of21 months following guilty plea); UnitedStares v. Brett Lee Scott, l:l3cri 10 (iaser defendant with CHC sentenced to low-end guideline sentence of 21 months foilowing guilty plea). IV. CONCLUSION Based on the foregoing, it is respectfully requested that the Court impose a sentence of 24 months. BENJAMIN B. WAGNER United States Attorney BAYLEIGH J. PETTIGRBW Special Assistant United States Attorney Dated: September 14, 2015 Is! Karen A. Escobar KAREN A. ESCOBAR Assistant United States Attorney Kern County Sherist Office Deputy Jeremy Storar was the Tactical Flight Of?cer in both the Wilson and Bonner cases. In the Wilson case, Deputy/TFO Storar also experienced irritation to his eyes akin to the pain that Pilot Austin felt as a result of the laser strikes in this case. 3 United States? Sentencing Memorandum (30 of 324) 000027 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 31 of 245 Case 1:15?cr?00088- LJO-SKO Document 87 Filed 08/03/15 Page 10f2 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNM UNITED STATES OF AMERICA, Piaintiff, ORDER ON MOTION FOR JUDGMENT OF ACQUITTAL OR v. NEW TRIAL (DOC. 84) BARRY LEE BOWSER, JR, Defendant. The Court has received and reviewed the Defendant?s pending alternative motions, along with the Government?s opposition. The factual issue is whether the defendant pointed the laser at the aircraft intentionally. Nobody contests that the defendant possessed the laser, nor that he was hoiding the laser when the laser hit the poiice heiicoPter twice. Nobody diSputes that thejury decided the factual issue in its verdict in favor of the Government?s Indictment. Regarding allowing the expert, Dr. McLin, to testify at all, and/or letting him testify about certain aspects of lasers, there are no new issues raised in the instant motion that weren?t already ruled upon during the pre verdict phases oftrial. The Court incorporates by reference the Government?s opposition. That Opposition is accurate, both in fact and in legal citation. It also fairly presents the direct and circumstantial (fair inferences) 1 000028 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 32 of 245 Case Document 87 Filed 08l03/15 Page 2 of 2 evidence that was provided at triai. The Court offers one addition: On the motions concerning the expert?s ability to testify, the Court did rule by implication by allowing Dr. McLin to testify as an expert, within appropriate Iimits. The pending alternative motions are DENIED in their entirety. IT IS SO ORDERED. Is/ Lawrence J. O?Neill UNITED STATES DISTRICT JUDGE Dated: August 3. 2015 000029 Ac:324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 33 of 245 Case Document 86 Filed 07/30/15 Page 1 of 35 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497?4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. BARRY LEE BOWSER, IR, Defendant. OPPOSITION TO POST-TRIAL MOTIONS CASE NO. LJO-SKO GOVERNMENTS OPPOSITION TO MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33 DATE: TBD TIME: TBD. COURT: I-Ion. Lawrence J. O'Neill 000030 (34 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 34 of 245 Case Document 86 Filed 07130/15 Page 2 of 35 TABLE NTENTS I. The Evidence Was Suf?cient to Establish The Defendant?s Guilt ..2 II. Defendant Has Not Established Any Prosecutorial Misconduct ..7 A. Alleged Fabricated Witness Statements and False Theories ..7 B. The Government Complied with the Court?s Pretrial Rules ..9 1. Any Reference to Flight Did Not Violate the Court?s Pretrial Order .. 0 2. Dr. McLin?s Testimony Was Proper ..11 a. Laser Beam Intersection of Cockpit Window ..11 13. Visibility of Cockpit Illumination From the General ..12 i 0. Tracking Testimony ..12 C. The Prosecutor Did Not Misstate the Evidence During Closing Argument .. 3 D. The Allegation of Cumulative Effect of Errors Committed by the Government and This Court Which Denied Defendant a Fundamental Fair Trial Is Meritless ..16 A New Trial Is Not Warranted On Due Process Grounds ..17 A. The Government Complied with Its Discovery and Brady Obligations ..20 1. Pilot Austin?s Communication with the FBI Were Produced ..20 2. The Government?s Pretrial Production of Local Law Enforcement Recording Did Not Violate Rule 16 or 000031 (35 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 35 of 245 Case Document 86 Filed 07/30/15 Page 3 of 35 a. Defendant?s Recorded Statement to BPD Of?cer Celedon .22 b. Defendant?s Recorded Statement to San Luis Obispc County Sheriff?s Deputy ..23 c. Recorded Statements of the Defendant to Kern County Sheriff?s Of?ce Booking Of?cer ..25 3. The Government Does Not Have a Heightened Obligation To Uncover Bxculpatory Evidence ..25 4. The Government Complied with Its Obligations Under Giglio .27 IV. Conclusion ..29 Government?s Exhibits 1 through 6 .. attached ii 000032 (36 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 36 of 245 Case Document 86 Filed 07/30/15 Page 4 of 35 TABLE OF AUTHORITIES ASES Gig/i0 v. United States, 405 U.S. 150 (1972) ..28 Gilbert. v. United States, 359 F.2d 285, 288 (9th Cir. 1966) ..6 Jackson v. Virginia, 443 U.S. 307, 319 (1979) ..2 Johnson v. United States, 520 U.S. 461 (1997) ..6 Phi/lips v. Woodford, 267 F.3d 966 (9th Cir. 2000) ..28 United States v. Agurs, 427 U.S. 97 (1976) ..28 United States v. Ate/zeson, 94 F.3d 1237 (9th Cir. 1996) ..13 United States v. Bender, 304 F.3d 161 (lst Cir. 2002) ..24 United States v. Birges, 723 F.2d 666 (9th Cir. 1984) ..13 United States v. Bryan, 868 F.2d 1032 (9th Cir. 1988) ..22, 24 United States v. Capers, 61 F.3d 1100 (4th Cir. 1995) ..25 United States v. Castil/o, 615 F.2d 878 (9th Cir. 1980) ..10-11 United States v. Chavez? Vernaza, 844 F.3d 1368 (9th Cir. 1987) ..22 United States v. Davis, 960 F.2d 820 (9th Cir. 1991) ..7 United States v. Jennifer Lorraine Coleman, Case No. LJO-SKO ..5 United States v. Domingaee?Villa, 954 F.2d 562 (9th Cir. 1991) ..27 United States v. i guema~L0pez, 125 F.3d 1241 (9th Cir. 1997) ..4 United States v. Gil/06k, 886 F.2d 220, 222 (9th Cir. 1989) ..2 000033 (37 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 37 of 245 Case Document 86 Filed 07/30/15 Page 5 of 35 United States v. Hankey, 203 F.3d 1160 (9th Cir. 1999) ..5 United States v. Hensley, 574 F.3d 384 (7th Cir. 2009) ..11 United States v. Hughes, 211 F.3d 676 (Ist Cir. 2000) ..25 United States 12. Keys, 133 F.3d 1282 (9th Cir. 1998) ..6 United States v. Lee Vang Lor, 706 F.3d 1252 (10th Cir. 2013) ..19 United States v. Levine, 180 F.3d 869, 871 (7th Cir. 1999) ..12 United States v. Lopez?Alvarez, 970 F.2d 583 (9th Cir. 1991) ..29 United States v. Lasster, 128 F.3d 1312 (9th Cir. 1997) ..6 United States v. Marrero, 904 F.2d 251 (5th Cir. 1990) ..25 United States v. Necoeehea, 986 F.2d 1273 (9th Cir. 1992) ..13 United States v. Olano, 507 US. 725, 734 (1993) ..6 United States v. Percy, 250 F.3d 720 (9th Cir. 2000) ..13 United States v. Perez, 2014 WL 3362240 (ED. Cal. July 9, 2014) ..27 United States v. Ramsey, 165 F.3d 980 (DC. Cir. 1999) ..4, 5 United States v. Rivaz-Fe/tx, 2013 WL 1694449 ..27 United States v. Santiago?Mendez, 599 F. Supp. 2d 95 (D.P.R. 2009) ..11 United States v. Sepa/veda, 15 F.3d1161(13tCir. 1993) ..17 United States v. Shart? 817 F.2d 1375 (9th Cir. 1987) ..2 United States v. Steel, 759 F.2d 706 (9th Cir. 1985) ..7 iv 000034 (38 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 38 of 245 Case Document 86 Filed 07/30/15 Page 6 of 35 United States v. Sullivan, 522 F.3d 967 (9th Cir. 2008) ..8 United States v. Toro-Pe/aez, 107 F.3d 819 (10th Cir. 1997) ..6 [Jnited ??ate? ?ode 18 U.S.C. 39A (2012) ?18 18 ..7 13 use. 3500 (2012) ..21 Federal Rules of Ql?iminal Prggedurg Fed. R. Crim. P. .22 Fed. R. Crim. P. ..22, 23 Fed. R. Crim. P. 16 .. passim Fed. R. Crim. P. 16(1)) ..20 Fed. R. Crim. P. 16(0) ..19 Fed. R. Crim. P. 26.2 .20 Fed.R. Crim. P. 33 .. passim Fed. R. Crim. P. 33(a) ..7 Federal Rules of Evidence Fed. R. Evid. 701 ..4 Fed. R. Evid. 702 ..4, 5 cher FAA Laser Beam Questionnaire Form at page 3 ..14 Local Rule of the United States District Court of the Eastern District of California 440(0) Federal Practice Procedure ..7 Craig A. Williamson Dr. Leon N. McLin ..5 000035 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 39 of 245 Case Document 86 Filed 07/30/15 Page 7 of 35 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH 3. PETTIGREW Special Assistant United States Attorney 2500 Tuiare Street, Suite 4401 Fresno, CA 93 721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. LJO-SKO Plaintiff, OPPOSITION TO BARRY LEE BOWSER, 3R, DATE: TBD TIME: TBD. COURT: Hon. Lawrence J. O'Neill Defendant. The United States of America, by and through its undersigned counsel, hereby opposes the defendant?s post-trial motions for judgment of acquittal or new trial, pursuant to Rules 29 and 33 of the Federal Rules of Criminal Procedure. CR. 84. The defendant?s counsel has written a brief long in invective and short in citation to the record or the law. As discussed in greater detail below, the defendant?s motion for judgment of acquittal or new trial should be denied, because the evidence was more than suf?cient to prove that the defendant knowingly aimed the beam of a laser pointer at an aircraft 0r its ?ight path. In addition, any alleged error did not deprive the defendant ofa fair trial. Further, the defendant?s claim of discovery and OPPOSITION TO 1 POST-TRIAL MOTIONS MOTION FOR JUDGMENT OF v. ACQUITTAL OR NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33 000036 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 40 of 245 Case Document 86 Fiied 07/30/15 Page 8 of 35 constitutional rights violations by this Court and the government is predicated upon wholly unsupported accusations and distortions of the record and the law. IENT ESTABLI HTHE DEFE NDANT 1L T. I. THE EVIDEN WA The defendant contends that there was insuf?cient evidence to support his conviction based solely on the claim that the government?s expert, Dr. Leon McLin, was not quali?ed as an expert to render opinions. The defendant?s argument is misplaced. The evidence that the defendant knowingly aimed the beam of a laser pointer at Air-l or its flight path is suf?cient if, viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the defendant guilty beyond a reasonable doubt of the elements of the crime. Jackson v. Virginia, 443 U.S. 307, 319 (1979); United States v. Shari]: 817 F.2d 1375, 1377 (9th Cir. 1987). in doing so, this Court must reSpect the province of the fact-?nder to determine the credibility of witnesses, resolve evidentiary con?icts, and draw reasonable inferences from prover: facts. United Slates v. Gil/00k, 886 F.2d 220, 222 (9th Cir. 1989). The undiSputed evidence showed that the defendant aimed the beam of a laser pointer at Air?1. The sole issue in dispute was whether the defendant did so knowingly.i In summary, the evidence established that Air-1 was hit by a ?very bright green? laser not once, but twice. R.T. 268:6. The evidence further indicated that the pilot and cockpit, which was illuminated by the laser beam, took direct hits from the laser. The evidence also established that the defendant was the only individual in the parking lot of a business in a Ii gilt-industrial area at the time of the laser incident, looking at the helicopter as it orbited, facing the direction of the helicopter, and directing ?his attention? toward the Defense counsel acknowledged in its opening, ?[T]his man, without intending to, hit a helicopter with the beam of his laser pointer.? RT. 101 :17-1 8. In closing, the defense conceded, ?So your whole verdict is going to come down to whether you think Mr. Bowser acted on purpose.? RT. 329: 1 1?12. OPPOSITION TO 2 POST-TRIAL MOTIONS 000087 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 41 Of 245 Case Document 86 Filed 07/30/15 Page 9 of 35 helicopter. R.T. l3}, 169-70:12, 182. According to TFO Storar?s recorded statements on the dispatch tape, immediately after the laser strikes, the defendant ?ran back toward that awning,?2 where his motorhome was located on the commercial property. Gov. Ex 3~b (Bakers?eld Police Department DiSpatcli Tape, Channel R.T. 131. Most signi?cantly, the evidence established that when the responding police of?cer ?rst arrived and asked the defendant, ?Why did we come out here tonight?,? the defendant responded without hesitation, ?Because I was, got a laser pointer working and pointed it at a, a helicopter.? Gov. Ex. 4?a. The defendant?s statement was recorded, played and admitted at trial. Gov. Ex. 4-21. The only evidence presented by the defense to counter the knowledge element of the crime was the defendant?s testimony that he did not intentionally aim the laser at Air-1. RT. 267. The defendant?s credibility, however, was substantially undermined by evidence of his prior felony convictions for crimes ofdishonesty (forgery and unauthorized use of personal identifying information of another perSOH), his admission to lying to the initial responding police of?cer about the laser?s whereabouts, and his inconsistencies in the stories he told to law enforcement of?cers and the jury.3 RT 275-76. Based on the foregoing evidence alone, it was reasonable to infer that the defendant knew he was 2 Although TFO Storar advised dispatch stated that the defendant ?ran back? toward the awning, Pilot Austin testi?ed that he ?began walking.? R.T. 131 3 For example, before trial, the defendant told BPD Of?cer Celedon that he pointed the laser at the helicopter but ?never seen it hit the heliCOpter.? Gov. Ex. 4~a, at p. 3. In contrast, at trial, the defendant changed his story and acknowledged that he, in fact, ?struck the helicopter after he got the laser working. RT. 266:24. He also testi?ed that he initially could not get the laser pointer to work, then he put in new batteries and kept ??nagling? with it. RT. 266: 7. He then ?went up in the air with it? and, while lowering his arm, he heard the helic0pter. R.T. 266:9?10. On cross, the defendant initially testi?ed he had to twist the laser pointer, which was a ?twist-together,? in order to activate it and did not have to use his finger to activate it, insisting several times that there was no button to activate the laser. R.T. 268:21. Later, he indicated he did not recall telling the FBI that he used his ?nger to activate the laser. RT. 281. In contrast, FBI TFO Nicholson testi?ed that the defendant told him in a recorded statement at the time of his arrest on the federal warrant that he used his ?nger to activate the laser and did not mention activation by means Of a twisting action. Rfl". 290-91. OPPOSITION TO 3 MOTIONS 000038 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 42 of 245 Case Document 86 Filed 07/30/15 Page ?10 of 35 aiming the beam ofa laser pointer at Air?i and that he did so intentionally. The circumstantial evidence of the defendant?s knowledge, along with his admission, was further corroborated by Dr. McLin?s testimony that two distinct and separate hits is consistent with tracking. RT. 219. Dr. McLin also defined, without contemporaneous objection by the defense, that ?tracking? is an ?intentional motion to have the beam move at whatever you are pointing at.? RT. 216:23-24. In addition, Dr. McLin testi?ed, in support of the knowledge element, that a laser beam must necessarily intersect the cockpit window or open door in order for it to illuminate the cockpit. RT. 214. Further, according to Dr. McLin, the cockpit illumination would be visible to a person on the ground, if the person was looking at the aircraft. RT. 215. The defendant argues that the Court erroneously admitted Dr. McLin?s testimony ?altogether,? because he claims that Dr. McLin was not quali?ed as an expert witness. Def. Mot. at 9:2. Although the Court did not formally rule that Dr. McLin was quali?ed as an expert when the government submitted that Dr. McLin was so quali?ed, the Court allowed the foregoing testimony and the record establishes that Dr. McLin was, in fact, quali?ed as an expert under Federal Rule of Evidence 702. R.T. 210. See United States v. Figueroa?Lopez, 125 F.3d 1241, 1247 (9th Cir. 1997) (holding that expert testimony erroneously allowed under Federal Rule of Evidence 701 was harmless error despite failure to go through usual process for qualifying expert testimony because it was clear from the record the witness was quali?ed to give the testimony); United States v. Ramsey, 165 F.3d 980, 984 (DC. Cir. 1999) (?Although the trial judge never formally quali?ed [the witness] as an expert witness, his testimony functionally satis?ed the requirements for expert testimony set forth in Federai Rule of Evidence Dr. McLin has worked for the Air Force Research Laboratory for 28 years, where he is a Senior OPPOSITION TO POST-TRIAL MOTIONS 000039 LL) U143324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 43 of 245 Case Document 86 Fiied 07/30/15 Page 11 of 35 Scientist with a medical background. RT. l98~99. His specialty includes the study of laser bioeffects and lasers as ?dazzlers.?4 RT. 199: 6. He is familiar with not only the bioeffects of lasers but their functioning and mechanics, having measured the strength and output of lasers and conducted studies involving iaser usage. RT. 201, 204-07. He has also conducted numerous studies involving the use of lasers on aircraft and has personally experienced being in an aircraft while lasers were pointed at it from people holding them on the ground, striking his eyes. RT. 204. Dr. McLin is also a voting member of a committee of the American National Standards Institute for the Safe Use of Lasers, which promul gates standards for the safe use of lasers outdoors. R.T. 199-200. Dr. McLin also testified that he had previously quali?ed as an expert at trial in this Court ?in the area of laser visual effects and pointing lasers at R.T. 202: 1 8-19. Dr. McLin?s training and experience indicate that he was quaiified to deliver an opinion concerning the targeting and direct hits of Air-l, as well as the visibility of the strikes from the ground. Rule 702 of the Federal Rules of Evidence provides that an expert may testify ?in the form of an opinion or otherwise? if his or her ?specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue.? In considering the admissibility of testimony based on ?specialized knowledge," this and other circuits have held that Rule 702 generally is construed liberally. See, United States v. Han/ray, 203 F.3d 1160, 168 (9th Cir. 2000); United States v. Ramsey, 165 F.3d 980, 984 (DC Cir. 1999) (admission of opinion testimony by DEA agent regarding drug trade was not plainly erroneous; while agent was not formally quaii?ed as expert, agent described his quali?cations, 4 ?[L]aser dazzle is de?ned as disability glare caused by a visible laser source.? Craig A. Dr. Leon N. McLin, Nominal ocular dazzle distance WODD). APPLIED OPTICS, Vol. 54, No. 7, March 1, 2015, at 1564. 5 As the Court is aware, Counsel Janet Bateman, who represents Defendant Bowser, also represented the defendant in the prior laser case in which Dr. McLin rendered an expert Opinion. United States v. Jennifer Lorraine Coleman, Case No. LJO-SKO. GOVERNMENTS OPPOSITION TO 5 MOTIONS 000040 couch 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 44 of 245 Case Document 86 Filed 07/30/15 Page 12 of 35 including his specialized knowledge, education, skill and experience, before giving testimony). The defendant also argues that the Court impermissibly reiied on Dr. McLin?s de?nition of tracking as encompassing intentional motion in denying his Rule 29 motion at trial. However, as noted above, the defendant did not contemporaneously object to this testimony and did not move at trial for acquittal on any specific grounds other than ?the state of the government?s case.? 344. Because the defendant failed to object to Dr. McLin?s de?nition of tracking, the plain error test applies.6 Under that test, the Court must consider whether there is 1) an error, (2) that is plain, and (3) which affects substantial rights. United States v. Keys, 133 F.3d 1282, 1286 (9th Cir. 1998). To establish that the error affected the defendant?s substantial rights, the defendant generally must Show that the error was prejudicial; must have affected the outcome of the District Court proceedings.? United States v. Lussz'er, 128 F.3d 1312, 1317 (9th Cir. 1997) (quoting United States v. Olano, 507 1.1.8. 725, 734 (1993)). If all three conditions are satisfied, the Court may exercise ?discretion to notice a forfeited error, but only if (4) the error seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.? Johnson v. United States, 520 US. 461, 467 (1997). Dr. McLin?s testimony does not constitute plain error. He did not testify that the defendant?s conduct or the evidence in this case was consistent with intentional conduct. Instead, in defining the concept of tracking, he testi?ed that the act was consistent with an intentionai motion. Even assuming that Dr. McLin?s de?nition of tracking was improper, the error was not prejudicial. In the absence of Dr. McLin?s testimony, the evidence supported a ?nding of guilt and thus the outcome would not have been any different. Viewing the evidence in the light most favorable to the government, a jury could certainly 6 As on appeal, a motion for a judgment of acquittal on any ground not objected to at trial is forfeited and reviewed by this Court only for plain error. See, Gilbert 12. United States, 359 F.2d 285, 288 (9th Cir. 1966) (general chalienge to suf?ciency of the evidence does not preserve motion for acquittal based on iack of venue); United States v. Toro-Pe/aez, 107 F.3d 819, 828 (10th Cir. 1997) (reviewing denial of the defendant?s motion for a new trial on the grounds of alleged prosecutorial misconduct for plain error where the defendant failed to contemporaneously object at trial). GOVERNMENTS OPPOSITION TO 6 POST-TRIAL MOTIONS 000041 06(30qu 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 45 of 245 Case Document 86 Filed 07/30/15 Page 13 of 35 conclude that the defendant?s behavior was not consistent with innocence. Moreover, to the extent that the defendant reasserts his arguments regarding Dr. McLin in support of his motion for a new trial pursuant to Rule 33, his motion must be denied.7 Under Rule 33 of the Federal Rules of Criminal Procedure, the Court may grant a motion for new trial if the interest of justice so requires. Fed. R. Crime. P. 33(a). A motion for new trial pursuant to Rule 33 is directed to the sound discretion of the Court. United States Steel, 759 F.2d 706, 713 (9th Cir. 1985). However, the defendant bears the burden of proving that he is entitled to a new trial under Rule 33 and, before ordering a new trial pursuant to Rule 33, the Court must find that there is a real concern that an innocent person may have been convicted. United States v. Davis, 960 F.2d 820, 825 (9th Cir. 1992); 3 Charles Alan Wright Sarah N. Welling, Federal Practice and Procedure, ?581, at 437 (4th ed. 2011). The defendant has made no showing that justice requires a new trial. The record establishes that Dr. McLin?s testimony was preperly admitted, since he was well-quali?ed to render an expert Opinion that two hits separated by several seconds was consistent with tracking, that the cockpit illumination would have been visible to a person on the ground who was looking at the aircraft, and that the strikes necessarily intersected or directly struck the or open door in order for the pilot and cockpit to be illuminated in the manner described by Pilot Austin. II. DEFENDANT HAS NOT ESTABLISHED ANY PROSECUTORIAL MISCONDUCT. A. Alleged Fabricated Witness Statements and Falsg Thegries The defense argues that statements made by the government in pretrial pleadings constitute prosecutorial misconduct. The defendant has not established that the government misrepresented an}r facts pretrial or during trial. More important, the defendant has failed to show that any alleged pretrial 7Like post-trial Rule 29 trial motions are subject to the harmless and plain error provisions of Rule 52; if the substantial rights of the defendant were not affected, the court should refuse to grant the defendant?s motion? 3 Wright, Federal Practice and Procedure 581 (4th ed. 201 GOVERNMENTS OPPOSITION TO 7 POST-TRIAL MOTIONS 000042 $324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 46 of 245 Case Document 86 Filed 07f30/15 Page 14 of 35 misrepresentations were advanced at trial or serve to warrant a new trial. United States v. Suliivan, 522 F.3d 967, 982 (9th Cir. 2008) (?When prosecutorial misconduct is alleged, the issue is whether, considered in the comext of the entire trial, that conduct appears likely to have affected the jury?s discharge of its duty to judge the evidence fairly?). FBI Special Agent Erick Bach prepared the af?davit in support of the criminal complaint in this case that was ?led on December 29, 2014. Agent Bach did not testify at trial, because he was assigned to a temporary detail on the East Coast. Rfi?. (6?22?1 S) at 4. There is no evidence that Agent Bach misrepresented statements made to him during the investigation of this case by the defendant?s friend, Danny Gibson, who has a criminal history consisting of prior impeachable convictions.8 Six weeks after the laser incident, Gibson made arguably exculpatory statements to BPD Of?cer Jared Ashby about the laser incident to Bakersfield Police Of?cers who were conducting a separate investigation of thefts that had occurred at the Moreland property during the time frame that the defendant lived there. The BPD theft investigation did not focus on the defendant as the primary su3pect and was conducted solely by BPD of?cers who were not acting in concert with the FBI or the of?cers involved in the investigation of the laser incident. The government did not become aware of Of?cer Ashby?s report until the government interviewed other of?cers involved in the theft investigation on June 17. The reports of those of?cers did not contain any exculpatory material and were provided to the defense in discovery on June 1. As soon as the government obtained Of?cer Ashby?s report from the Bakers?eld Police Department, the government provided it to the defense on June 19. Gibson?s statements documented by Of?cer Ashby do not establish that Agent Bach misrepresented what Gibson told Ashby or what was known to Agent Bach at the time that he prepared the af?davit in support of the complaint. Evidence about any statements that Gibson made to law enforcement was not presented at trial. Because Agent Bach did not testify, his credibility was not at issue at trial. Thus, in the context of the trial, Gibson?s statements and Agent Bach?s characterization of them were not considered by the jury and did not affect 8 Court records indicate that Gibson was convicted in 2008 of possessing methamphetamine, a felony, and convicted again in 2009 of possessing methamphetamine, a felony. GOVERNMENTS OPPOSITION TO 8 POST-TRIAL MOTIONS 000043 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 47 of 245 Case Document 86 Filed 07/30/15 Page 15 of 35 the outcome of the trial. Indeed, the defense identi?ed both Gibson and Of?cer Ashby as potential defense witnesses but did not call them as witnesses at trial. CR. 58 (listing Gibson and Ashby as defense witnesses; Ashby was also present in the courthouse during trial pursuant to a defense subpoena). Thus, even if the Defendant could Show Agent Bach failed to disclose exculpatory hearsay statements, there was no prejudice to the Defendant since any alleged misstatements by Bach bear on the credibility of a non-testifying agent and are immaterial. Moreover, the witnesses to any potentially exculpatory material were known to and could have been subpoenaed by the defense to testify at trial. The defense mischaracterizes the government?s evidence of ?ight. The government?s theory regarding ?ight never shifted. The government maintained that the defendant ?ed as a result of the laser incident before he was aware of the thefts. When the of?cers investigating the theft case contacted the defendant after he left California, the defendant denied knowing about any thefts, as documented in discovery provided to the defense in March.9 Nor is there any evidence that the defendant was, in fact, aware of the theft investigation at the time of his flight. In accordance with the Court?s pretrial order, the government identi?ed all potential rebuttal witnesses, including Gibson and another individual who not only had information about the defendant?s flight but had provided information to law enforcement about admissions that the defendant had made regarding the laser incident. CR. 22. The fact that the govemrnent included potential witnesses on its witness list who had provided information to law enforcement about the defendant?s ?ight did not have any effect on the jury, since they did not testify. The defendant?s unsupported allegations do not establish grounds for a new trial. B. Govern men Cg mu ii ed ith th Court?s Pr etrial Rul in gs. The defendant mischaracterizes the government?s response to the Court?s pretrial rulings. The government did not violate any pretrial orders. 9 At Bates Stamp 53, BPD Officer Christopher Bagley?s report indicates that the defendant ?reported that on 10-31-14, he moved from Bakersfield to Spring?eld Illinois and knew nothing about this theft.? OPPOSITION TO 9 000044 0000\10 (48 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 48 of 245 Case Document 86 Filed 07/30/15 Page 16 of 35 1. Anv Reference to Flight Did Not Violate the Court?s Pretrial Order The defendant argues that the government violated the Court?s pretrial ruling regarding evidence of the defendant?s ?ight to Arkansas. At the hearing on the parties? in limine motions, the C0urt did not exclude evidence of ?ight. When the government argued that evidence of ?ight ?could be relevant,? the Court indicated, ??rst of all, he would have to testify, period. But secondly, he would have to testify that he left.? R.T. (6-22-15) at 37:15?19. At trial, the government did not present any evidence of ?ight in its ease-in?chief. During cross? examination of the defendant, the government asked whether he left the Sillect or Moreland property in October. R.T. 269. The question was consistent with the Court?s statement at the in limine hearing that ?he would have to testify that he left? in order to establish relevance. R.T. (6222-15) at 37:15-19. Before the defendant responded, the defense objected and no evidence on the issue was elicited. The defense also complains about the government?s questioning of the defendant about his destruction of the laser pointer. During cross?examination, the government asked the defendant about his statement to the FBI that he had ?mutilated the laser,? a statement the defendant made at the time of his arrest in this case in March six months after he told Of?cer Cetedon that he had given the laser pointer to the guy in the SUV before BPD arrived on the night of the laser incident. R.T. 283:24. The defendant responded that he did not recall making the statement. R.T. 283125. The government then asked if it would refresh his recollection to play that portion of his recorded statement to the EB. R.T. 284. in response, the defendant said he did not know. Then, after two attempts to ask about his destruction of the laser, the government quali?ed its line of inquiry by asking, ?You don?t recail making the statement that you mutilated the laser in Arkansas?? R.T. 284: 6-7. Following the defendant?s objection, the Court ruled that the question was permissible, since there was no reference to ?ight and reference to Arkansas was a necessary quali?er to jog his memory. R.T. 285. The record indicates that the government did not violate the Court?s pretrial order and that questioning about the destruction of the laser pointer was proper. United States v. Castillo, 615 F.2d OPPOSITION TO 10 POST-TRIAL MOTIONS 000045 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 49 Of 245 Case Document 86 Filed 07/30/15 Page 17 Of 35 878, 885 (9th Cir. 1980) (?An attempt by a criminal defendant to suppress evidence is probative of consciousness of guilt and admissible on that basis?); United States v. Hensley, 574 F.3d 384, 391 (7th Cir. 2009) (destruction of relevant evidence shows consciousness of guilt); United States v. Santiago- Mendez, 599 F. Supp. 2d 95, 99 (D.Puerto Rico 2009) (destruction of pertinent evidence ?is probative of consciousness of guilt??). Questioning about the destruction Of the laser pointer was also proper, because the defendant testi?ed on direct that he had lied to Of?cer Celedon about giving the iaser pointer to his friend in the SUV. R.T. 268-69. 2. Dr. Mc Lin?s Testi men Was Proper The defense mischaracterizes the testimony of Dr. McLin. a. Laser Beam Intersection of Cockpit Window In a ?tentative? pretrial ruling, the Court indicated that Dr. McLin could testify that? in order for a laser beam to illuminate the cockpit, the laser beam necessarily had to intersect the cockpit window.? R.T. (6-22?15) at 39:9. The Court also indicated that the government could argue in opening and closing that such testimony is "consistent with deliberate aimng of the cockpit." RT. (6-22?15) At trial, Dr. McLin observed the Court?s tentative ruling and testified ?to illuminate the cockpit, that implies that it has to intersect the window or an open door.? R.T. 214: 19-20. The record does not indicate that Dr. McLin rendered an opinion that such intersection is consistent with deliberate aimng of the cockpit. However, consistent with the Court?s tentative pretrial ruling, the government argued in closing that Dr. McLin?s testimony about the direct hits of Air-1 was ?not consistent with some random movement? and was ?consistent with an aiming at an aircraft.? R.T. 316: 19-20, 317:14. Dr. McLin?s testimony did not constitute an impermissible legal conclusion and the government?s argument in closing was derived from a reasonable inference arising from Dr. McLin?s testimony. Moreover, the defendant did not object to Dr. McLin?s testimony about the laser?s intersection of the cockpit window and open door, nor did he object to the government?s argument. Thus, plain error analysis applies. Dr. McLin?s expert testimony and the government?s argument was proper. Dr. McLin provided OPPOSITION TO 1 1 POST-TRIAL MOTIONS 000046 ix.) 43w coco-amt324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 50 of 245 Case Document 86 Filed 07/30/15 Page 18 of 35 permissible expert testimony regarding the functioning and visual effects of lasers, and such testimony assisted the jury in assessing the defendant?s knowledge and intent. Thus, there was no error, let alone plain error. Even if a contemporaneous objection had been made to the government?s argument, the arguments of counsel are not evidence; as the Court instructed the jury, ?Questions, statements, objections and arguments by the lawyers are not evidence.? R.T. 90:15-16. b. Visibility of Cockpit Illumination From the Ground As discussed above, Dr. McLin is clearly an expert in the bioeffects of lasers. The defense conceded as much at trial. R.T. 208, 217. Thus, Dr. McLin was quali?ed to render an opinion regarding the visibility of the laser?s illumination of a helicopter cockpit at 500 feet and one-eighth of a mile away by a person looking at the aircraft from the ground. R.T. 214-1 5. Such opinion was also appropriate in light of the centrality of the issue of the defendant?s knowledge in this case.10 Questioning by the government regarding the expansion capability of the laser and its visibility to a person on the ground was similarly appropriate. 0. Tracking Testimony There is no evidence that the government sought to elicit a legal conclusion from Dr. McLin when it asked, ?were there any factors present here that are consistent with tracking?? R.T. 218121-22. Indeed, the question was entirely consistent with the Court?s directive, ?You can ask him a question, such as . . .whether or not something is being tracked, what factors play into that.? R.T. 217:22~24. When Dr. McLin replied that ?two hits would be consistent with intentionally the defense objected, interrupting Dr. McLin who did not complete the sentence. R.T. 218:23. A question posed by a prosecutor which elicits an unanticipated, incomplete legal conclusion is not prosecutorial misconduct. See, United States v. Levine, 180 F.3d 869, 87l (7th Cir. 1999) '0 The defendant claimed that he did not knowingly aim the laser at the aircraft, but gave varying accounts of what occurred. At trial, for example, the defendant testi?ed that he did not see the laser hit the helicopter. R.T. 252. However, before trial, he admitted to San Luis ObiSpO County Sheriff Deputy Gregory Roach that he was playing around with the laser and, when he pointed it up into the air, the laser beam struck the helicopter. R.T. 271-72. . OPPOSITION TO 12 MOTIONS 000047 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 51 of 245 Case Document 86 Filed 07/30/15 Page 19 of 35 (?Matters of fact often overlap matters of law, however, and characterizations can have legal signi?cance; that the answer to a question may lead to a particular legal conclusion does not put the subject off limits?). In the absence of evidence that the government intentionally attempted to elicit improper testimony, the general, non-leading question that the government posed to its expert cannot serve as the basis of ptosecutorial misconduct. C. The Prosecutor Did Not Misstate the Evid nce Durin la in Ar ument. The defense also seeks a new trial based on alleged misstatements of evidence made during the government?s closing argument. The defendant?s claim is invalid, since the government did not misstate the evidence and, even if it did, any error does not rise to the level of prosecutorial misconduct. That the defendant?s claim is completely without merit is evidenced by the absence of any objection by defense counsel during the government?s closing argument. When a defendant fails to object to a misstatement of the evidence, thus foreclosing an opportunity for correction, the error is reviewed only for plain error. United States v. Percy, 250 F.3d 720, 728-29 (9th Cir. 2001); United States v. Necoec/zea, 986 F.2d 1273, 1278 (9th Cir. 1993). it is not misconduct for "the prosecutor to argue reasonable inferences based on the record." United States v. Ate/293m, 94 F.3d 1237, 1244 (9th Cir. 1996) (prosecutor's comment that defendant did not deny the crime to his cousin was a reasonable inference); United States v. Birges, 723 F.2d 666, 671- 72 (9th Cir. 1984) (prosecutor may argue that defendant's affirmative defense is a "fabrication"). When the prosecutor?s argument in this case is examined in light of the record, it is apparent that there was no attempt to mislead the jury, and no prosecutorial misconduct. Speci?cally, the defendant contends that the government inaccurately characterized the testimony of the airmen as establishing that the defendant faced the helicopter when it was struck by the laser. The testimony of the airmen supported this characterization. TFO Storar testified that when he 6? ?rst saw the defendant he was in our direction? and the defendant?s attention was drawn to? Air?1. R.T. 169:10-12, 170:12-13. He further specified that the defendant was ?facing? west and north in the direction of the helicopter. R.T. 182: 4-6. TFO Storar made these observations with the aid OPPOSITION TO 13 MOTIONS 000048 (52 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 52 of 245 Case Document 86 Filed 07/30/15 Page 20 of 35 of the Nightsun searchlight, Night Vision Goggles (NVGs), binoculars and FLIR. R.T. 169, 172. However, when the helicopter turned toward the defendant during the second strike, he ran or walked back toward the awning where his motorhome was located. Gov. Ex. 3-b; R.T. 131. Based on this evidence, a reasonable inference could be drawn that the defendant was, in fact, ?directly facing? the helicopter at the time of the laser incident. Rfl?. 322:2. Thus, there was no misstatement and no prosecutorial misconduct. The defendant further argues that the prosecutor misstated the evidence when she stated that the defendant was ?holding . . . an object in a steady manner.? Rfl". 322:13?14. Pilot Austin testi?ed that he saw a silhouette of the defendant and it appeared that ?the laser was being held directly in front of his body, midsection, between the neck and lower torso.? RT. 131:2l-23. There was no testimony that the defendant was ?ailing or moving erratically; the defendant was, according to the evidence, holding an object directly in front of his body, while he was standing in the parking lot facing the direction of the aircraft. Based on the record, a reasonable inference could be drawn that the defendant was holding an object in a steady manner, which is consistent with deliberate laser strikes on the aircraft. The defendant also mischaracterizes the record regarding the FAA Laser Beam Exposure Questionnaire that Pilot Austin completed and that was admitted into evidence as Defense Exhibit C. A review of the exhibit, which consists of a ?llable FAA form available on the FAA website, serves as a reporting mechanism to the FAA for ?statistical? purposes only and reveals no room for signi?cant narrative or explanatory answers to multiple choice responses.? R.T. 147: 17~18, 148; AA Laser Beam Exposure Questionnaire. Although there are some boxed areas for text, the form does not allow for extended narrative. A review of the FAA form indicates that Pilot Austin accurately testified at trial, ?There is not a lot of space on the FAA form to fill out, to do a complete narrative.? R.T. 141:20-21. Speci?cally, the space provided for the ?Cockpit Illumination? section allows only 61 and one half usable characters all others are cut off, and it does not specify, after previously asking how many strikes, which strike illuminated the cockpit or how many times the cockpit was illuminated. See Text Box of ?Cockpit Illumination? section of FAA Laser Beam Questionnaire Form at page 3, attached hereto as Government Exhibit 1. GOVERNMENTS TO DEFEN POST-TRIAL MOTIONS 14 000049 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 53 of 245 Case Document 86 Filed 07/30/15 Page 21 of 35 However, the fact that Pilot Austin testified to two laser hits but only one cockpit illumination does not mean that the laser strikes would not have been visible to the defendant who, as shown by the evidence, was facing the aircraft. As Dr. McLin testi?ed, a laser beam expands as it travels and would be visible to observers on the ground before it strikes the aircraft. Rfl". 22]. Dr. McLin also testi?ed that ?[t]he person on the ground would see the beam going out and being stopped by the helicopter if it is hitting the helicopter and reflecting back.? R.T. 215:8-10. The prosecutor?s argument did not misstate the evidence; therefore, there was no prosecutorial conduct. The defendant further argues that the prosecutor mischaracterized the severity of the visual effects on the airmen. However, TFO Storar likened the effect of two to three seconds of exposure to a laser beam to the feeling that ?sand was being poured into [his eyes].? R.T. 160:19. Pilot Austin also referred to the effects of the laser strike that he experienced as an irritation like a feeling of sand entering his eye. RIF. 136:2] ?22. The prosecutor?s statements that the effects of the laser strikes was akin to ?the experience of feeling like sand was being poured? into the was a fair interpretation of the testimony and thus does not constitute prosecutorial misconduct. R.T. 336:24. Finally, the defendant complains about reference to the Pythagorean Theorem as a means of calculating the angular degree required to strike the helicopter based upon the relevant altitude (500 feet) and distance of one eighth of a mile (660 feet). The degree of angular distance was important in this case, because one of the defendant?s stories was that he was aiming for a radio tower (Tower 2) about a half mile away. According to FBI Task Force Officer Joshua Nicholson, the only radio tower visible from the Sillect or Moreland preperty that matched this description was about 100 feet in height and .4 miles 12 feet) west of the Sillect or Moreland property where the defendant was using the laser. R.T. 293. Because the helic0pter was ?ying much higher (500 feet) and at a shorter distance (one-eighth of a mile) from the source of the laser, the angular difference was highly relevant. Dr. McLin testified that the Pythagorean Theorem could be used to calculate angles. R.T. 303. However, the Court would not allow Dr. McLin to continue to testify regarding the calculation of the angles for comparison after determining the hypotenuse using the distance and height measurements established by the evidence, GOVERNMENTS OPPOSITION TO 15 MOTIONS 000050 oomqmmaww 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 54 of 245 Case Document 86 Filed 07/30/15 Page 22 of 35 because it was based on ?basic geometry? that ?we all took.? R.T. 304:12. In closing, the prosecutor argued that, even if the defendant was in fact aiming the laser at Tower 2, there would have been ?a signi?cant angular difference? in aiming the laser between Tower 2 and Air?1 and urged jurors familiar with ?high school math? to do their own calculations. '2 R.T. 320-21. This angular difference would have indicated that the defendant would have had to take deliberative action to move his arm to hit Air-1 with the laser. Basic math, in fact, supports the assertion that there was a signi?cant angular difference such that if the defendant was pointing the laser at the tower, the helicopter could not have accidentally traveled through it. Applying basic math, the Pythagorean Theorem would determine the hypotenuse, or the distance from the defendant to the top of Tower 2, which could then be used to calculate the angle using the sine. In fact, as the attached charts establish, the angle of the hypotenuse for Tower 2 is 2.71 degrees and the angle of the hypotenuse for Air-l is 37.1 degrees. See Angular Calculation for Tower 2, attached hereto as Government Exhibit 3; Angular Calculation for Air-1 attached hereto as Government Exhibit 4; Angular Differentials to Scale of Tower 2 and Air-l attached hereto as Government Exhibit 5; Calculation Worksheet (with interplay of Pythagorean Theorem), attached hereto as Government Exhibit 6. D. The All ati umulative Effect ofErr rs omrnitted th vernment and This ggourt Whigh Denied Defendant a Fundamental Fair Trial ls Meritless. Defendant argues that even if this Court determines that none of the alleged court and government errors, standing alone, do not constitute plain or reversible error, their cumulative effect impugned the fairness of the proceedings and undermined the trustworthiness of the verdict. I-le requests that his conviction be reversed and new trial be granted on the basis of the cumulative effect of 12 A high school math worksheet showing the calculation of an angle in a right-angled triangle are attached hereto as Government Exhibit 2 and speci?cally provide as an example at page 4 the angle of elevation of a plane from point A on the ground. The defendant argues that the Pythagorean Theorem has nothing to do with angle calculation; however, in order to calculate the angle of a right-angled triangle, one must establish the hypotenuse which may be calculated through application of the Pythagorean Theorem. Defense Exhibit A, attached to the defendant?s motion, which is titled ?Pythagorean Theorem,? also indicates that better understand certain problems involving aircraft and propulsion it is necessary to use some mathematical ideas from trigonometry the study of triangles.?Def. Ex. A at 2. GOVERNMENTS OPPOSITION TO 16 POST-TRIAL MOTIONS 000051 (55 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 55 of 245 Case Document 86 Filed 07/30/15 Page 23 of 35 alleged error. ?The Constitution entitles a criminal defendant to a fair trial, not to a mistake-free trial.? United States v. Sepu/veda, 15 F.3d 116], 1196 (ist Cir. 1993). In applying the Cumulative Error Doctrine, reviewing tribunal must consider each such claim against the background of the case as a whole, paying particular weight to factors such as the nature and number of the errors committed; their interrelationship, if any, and combined effect; how the district court dealt with the errors as they arose (including the ef?cacy -- or lack of ef?cacy -- of any remedial efforts); and the strength of the government?s case.? Id. As discussed above, there were no errors committed by this Court or the government. In the event that this Court finds errors occurred, there was strong evidence to establish the defendant?s guilt. The evidence included: 1) the defendant?s recorded admission, 2) an admission that the defendant ?mutilated? the laser pointer and lied to BPD about it, 3) the airmen?s observations of the defendant during the laser incident, 4) direct hits and tracking of the police helicopter, 5) the signi?cant angular difference between Tower 2 and Air-l and 6) the defendant?s lack of credibility. Accordingly, the defendant?s motion based on alleged cumulative error by this Court and the government should be denied. A NEW TRIAL IS NOT WARRANTED ON DUE PROCESS GRQIENDS. in his Rule 33 motion, the defendant argues for a new trial based on the claim that both the government and the Court violated his due process rights under Brady and Rule 16. Def. Motat 23:23- 24. The defendant?s repetitive and acrimonious accusations against the government of malicious violations of the Constitution and rules of discovery are unfounded and speci?cain fail to recognize the OPPOSITION TO POST-TRIAL MOTIONS l7 000052 coco-1an 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 56 of 245 Case Document 86 Filed 07/30/15 Page 24 of 35 government?s discovery and Brady obligations in federally?adopted cases that were initially and independently investigated by local authorities. '3 As indicated in discovery, the involvement in this case followed an initial investigation by the Bakers?eld Police Department (BPD) and Kem County Sherist Of?ce (KCSO). The reports of the BPD, KCSO, and FBI were produced to the defendant on March 31, 2015, the day after his arraignment. ?4 The information referenced in those reports was at all times available to the defense through the subpoena power of the court. Trial in this matter was set on May 11. Prior to that, it was anticipated that the defendant would plead guilty based on averments made by defense counsel to that effect and was expected to sign a written plea agreement sent to the defense at the defendant?s request after transmission of a plea offer. On June 5, the defendant ?led a seven-page discovery motion seeking a wide array of material outside the scope of Rule 16 and requesting Brady, Giglio, and Jencks material. OR. 41. in its response, the government noted that it had produced material consistent with its discovery and Brady obligations. OR. 44. However, it noted that it did not have an obligation to produce encks material '3 The defendant also argues that, because this case was initially investigated by state officers, it should have been prosecuted at the state level. Def. Mot. at 20. This argument is irrelevant. There are many crimes which are prosecutable at both the state and federal levels. The fact that the majority of the witnesses are state of?cers does not mean that federal prosecution was notjusti?ed. Indeed, there is a signi?cant federal interest in prosecuting laser cases federally, as Congress recognized when it criminalized aiming the beam ofa laser pointer at an aircraft in 2012. FAA Modernization and Reform Act of2012, Pub. L. 112?495 (enacting 18 U.S.C. 39A). Prior to the passage of 18 U.S.C. 39A, Congress acknowledged ?the obvious and inherent danger of aiming a laser at an aircraft under circumstances? is based on the potential for ?visual distraction . . . discomfort or even damage to a pilot?s eyes.? Securing Aircraft Cockpits Against Lasers Act of 201 1, House Report No. 1 12?1 Indeed, laser strikes of aircraft have skyrocketed since 2006 when the FAA began to document the incidents based on information gathered from its Laser Beam Exposure Questionnaire submitted by victim airmen. In 2006, there were 384 reported laser incidents. In 2014, the FAA received 3,894 reports of incidents involving laser strikes on aircraft. in this district, there were approximately 150 reported laser incidents last year, with the majority in Bakersfield, Fresno, and Modesto. The defendant also asserts that ?[n]ot one federal employee testi?ed.? Def. Mot. at 20:25. This statement is not only irrelevant; it is untrue. Dr. McLin, who testi?ed, is a federal employee. '4 Speci?cally, the BPD report, which was produced to the defense on March 31, stated that there was a recording of the defendant?s Mirandized statement, which was summarized in the BPD report. Had the defendant speci?cally requested to inspect or copy the recording that was referenced in the BPD report, the government would have contacted the BPD to obtain a copy and make it available to the defense before June 3 when the government did obtain and produce it to the defense 27 days before trial. OPPOSITION TO 18 POST-TRIAL MOTIONS any 000058 LI324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 57 of 245 Case Document 86 Fited 07/30/15 Page 25 of 35 before trial, that it did not have an obligation to produce Giglio material with respect to non-testifying witnesses, that Brady did not announce a rule of pretrial discovery, and that it did not have an obligation to produce items not within its ?possession, custody or control.? Fed. R. Crim. P. 16. Speci?cally, with respect to its Brady obligations, the government, citing and quoting United States v. Lee Vang Lor, 706 F.3d 1252, 1260 (10th Cir. 2013), noted that it did not have an obligation to investigate ?every tidbit of information that is, or could ripen into, impeachment evidence.? See Def. Mot. at 17:} (failing to attribute ?tidbits? language to legal authority). Although the defendant requested a subpoena for records of the Kern County Sheriff?s Of?ce, that subpoena issued on June 16 two weeks before trial and did not require production of any records until June 30, the day of trial. See Declaration of Amber Hemingway, Sheriff?s Senior Support Specialist; CR. 65. The defendant also subpoenaed records of the Bakers?eld Police Department. However, it is unclear from the court record when that subpoena actually issued, since it was sealed. The government became aware of the production of records by the Bakers?eld Police Department when this Court?s deputy courtroom clerk contacted the undersigned right before trial to review the items produced by BPD. All of the KCSO and BPD materials requested by the defendant in his subpoena were produced in discovery by the government before the start of trial. During preparation for trial and pursuant to speci?c requests made by defense counsel regarding many items which fell outside the scope of Rule 16, the government asked witnesses employed KCSO, BPD, and San Luis Obispo County Sheriff?s Of?ce (the arrestng agency for the federal arrest warrant) about the existence of any reports, recordings, or other materials relevant to the case. When the existence of such material in the custody of local authorities became known to the government, were made to obtain it and then produce it immediately in discovery regardless of whether the materiai was properly discoverable and, if discoverable, pursuant to the government?s continuing duty to disclose additional evidence or material. Fed. R. Crim. P. 16 Conversely, the government requested reciprocal discovery from the defense on March 30. CR. 17. Thereafter, in subsequent discovery production letters to the defense, the government renewed its GOVERNMENTS OPPOSITION TO 19 POST-TRIAL by the efforts 000054 OKDOOQON 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 58 of 245 Case Document 86 Filed 07/30/15 Page 26 of 35 discovery requests, noting this Court?s Local Rule requiring production within 21 days from the government?s initial discovery request. Local Rule 440(0). On May 28, pursuant to Federal Rules of Criminal Procedure 16(1)) and 26.2, the government sent a letter to the defense requesting reciprocal discovery by no later than three calendar days before trial. On June 14, the government formally ?led a motion for reciprocal discovery. CR. 44. On June 22, this Court ordered the defense to produce reciprocal discovery. CR. 60. Notwithstanding the government?s repeated discovery requests, the government did not receive any reciprocal discovery from the defense and only received the defense exhibit binder on the very morning of trial. On .lune 22, the morning of the hearing on previously ?led motions in limine, the defendant moved to dismiss the indictment based on alleged Brady and discovery violations. CR. 56. Upon consideration of the arguments of the parties, the Court denied motion. CR. 60. The day before trial, ?the defense renewed its motion to dismiss the indictment based on alleged Brady and discovery violations. CR. 72. The government ?led a seven ?page opposition that day. OR. 73. Noting the complexity of the discovery issues raised by the defendant ?literally three and 1/2 court hours before the jury panel [was] expected to arrive for selection? and the failure of the defense to adequately analyze and support the issues, the Court denied the motionAust in?s Communications with the FBI Were Produced. The defendant complains that it did not receive any documentation from the government concerning Pilot Austin?s reporting of the laser incident to the FBI until the second day of trial. In its initial discovery production on March 3 the government provided Pilot Austin?s completed FAA Laser Beam Exposure Questionnaire and an email to the FBI from Pilot Austin supplementing the contents of the Laser Beam Questionnaire.15 indeed, both documents were marked 1? FBI TFO Nicholson also generated a report of the interview of Pilot Austin when he was interviewed by the government?s attorneys during trial preparation. The report and TFO Nicholson?s notes were immediately provided to the defendant in discovery. In addition, the government produced in discovery expansive materials reiating to prior laser incidents prosecuted federally in which Pilot Austin was a victim. GOVERNMENTS OPPOSITION TO POST-TRIAL MOTIONS 20 000055 (59 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 59 of 245 Case Document 86 Filed 07/30/15 Page 27 of 35 and admitted into evidence as Defense Exhibits and D. RT. 141-42, 156. As discussed above, the Laser Beam Exposure Questionnaire is a ?llable FAA form that is not intended as a criminal report of an investigation; rather, it is prepared and submitted to the FAA for primarily statistical purposes. ?6 RT. 147: 17-18, 148. The questionnaire was attached as a document to an email that was sent to FBI Task Force Of?cer (TFO) Joshua Nicholson?s KCSO (not FBI) email account after Pilot Austin Orally reported the laser incident to TFO Nicholson and before the case was opened in the U.S. Attorney?s Office. RT. 230. Other than the attachment, consisting of the FAA Laser Beam Exposure Questionnaire, that was produced to the defense on March 31, the text of the email itself did not contain any relevant material discoverable under Rule 16 or subject to production under the iencks Act. Fed. R. Crim. P. 16(a)(2) (?this rule does not authorize the discovery or inspection of reports, memoranda, or other internal government documents made by an attorney for the government or other government agent in connection with investigating or prosecuting the case. Nor does this rule authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. 3500?); 18 U.S.C. 3500 (?After a witness called by the United States has testi?ed on direct examination, the court shall, on motion of the defendant, order the United States to produce any statement . . . of the witness in the possession of the United States which relates to the subject matter as to which the witness has testi?ed?). Pilot Austin?s email with the attachment was nonetheless provided to the defense after Pilot Austin testi?ed and after the government requested TFO Nicholson to search his email accounts for any communications from Pilot Austin. RT. 229. After the email was produced, the defense indicated it might need to question Pilot Austin further. However, the defense did not recall Pilot Austin. RT. 229. in sum, the defendant has failed to establish any discovery or Brady violation relating to Pilot Austin?s communications with TFO Nicholson about the laser incident. '6 The form itself was created by the FAA in response to the recommendation of a committee of the Society of Automotive Engineers, on which Dr. McLin sits which, that sets standards on the use of lasers in air space. RT. 209. OPPOSITION TO 21 MOTIONS 000056 (60 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 60 of 245 Case Document 86 Filed 07/30/15 Page 28 of 35 2. The Governrn ent?s retrial roducti on of Lo cal Law Enforcement Re cordi Did 2 Not Violate Rule 16 or Brady. a. Defendant?s Recorded Statement to BP Of?ce eledon As noted above, the defendant?s rec0rded statement to BPD Of?cer Celedon was not obtained by the FBI or the US. Attorney?s Of?ce until on or about June 3 when it was produced to the defense 23 days after the defendant requested a speedy trial and 27 days before triai. CR. 21. The defense was certainly not blindsided by the recording, since the substance and existence of the recording was summarized in the Of?cer Celedon?s report and the recording was referenced in the report, which was produced to the defense on March 31, 2015, and would have been made available to the defense at that time upon speci?c request. Prior to on or about June 3, the recording was not ?within the government?s possession, custody, or control? and was equally available to the defendant through the subpoena process of the court. Fed. R. Crim. P. see also United States v. Chavez- Vernaza, 844 F.3d 1368, 1374-75 (9th Cir. 1987) (federal government has no obligation to obtain and disclose to the defendant information not in possession of federal prosecutor or agency). Moreover, the Ninth Circuit stated in Uni/ed States v. Bryan, 868 F.2d 1032, 1036 (9th Cir. 1989), that under former Rule (current Rule 16(a)(l which applies to documents ?within the possession, custody or control of the government? federal prosecutor need not comb the ?les of every federal agency which might have documents regarding the defendant in order to ful?ll his or her obligations under Rule Instead, ?[t]he prosecutor will be deemed to have knowledge of and access to anything in the possession, custody or control of any federal agency participating in the same investigation of the defendant.? Id. Ruie which refers to recorded statements ?within the possession, custody or control of the government, the existence of which is known or by the exercise of due diligence may become known, to the attorney for the government? is similariy limited. Although the Bakersfield Police Department participated in the initial laser investigation and had custody of the recorded statement, the rule did not apply before on or about June 3, because BPD is not a federal. agency. OPPOSITION TO 22 POST-TRIAL MOTIONS 000057 (61 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 61 of 245 Case Document 86 Filed 07/30115 Page 29 of 35 Thus, there was no discovery violation. Nor was there a Brady violation, since the recording contained no exculpatory statements and was not therefore subject to Brady disclosure. b. Defend ant?s Reco rded Statement to an Luis Obi no County eriff 4330Deputy The defendant also complains about the production of a recording of the defendant?s arrest in March on the warrant in this case by San Luis Obispo (SLO) County Sheriff Deputy Gregory Roach. The arrest by Deputy Roach was not coordinated with or effected at the direction of the FBI or any federal agency. As the government?s trial brief ?led on May 27 indicated, the defendant was arrested on the federal warrant by Deputy Roach who found the federal warrant after the defendant was encountered sleeping on the side of the road ?and transported him to SLO County Jail where he was held pending notification and arrival of CR. 26 at 3:20?2i. After the ?ling of the government?s trial brief, the FBI, at the direction of the government, obtained Deputy Roach?s arrest report and provided it to the government?s attorneys, who immediately produced the report to the defense. Prior to that time, the report was not ?within the government?s possession, custody, or control? and was equally available to the defense through the subpoena power of the court. Fed. R. Crim. P. Moreover, the report did not contain any statements of the defendant or reference the fact that the arrest was recorded via a police camera and contained statements ofthe defendant about the laser incident. Nor were statements of the defendant elicited at the direction of the government or its agents. After the report was obtained by the FBI, the government?s attorneys attempted to reach Deputy Roach to determine whether the defendant had made any statements about the laser incident. Deputy Roach did not immediately return the government?s calls. However, on June 18, the government finally made contact with Deputy Roach and for the ?rst time became aware of some self-serving recorded statements in the custody of the SLO County Sheriff?s Of?ce made by the defendant about the laser incident during the hour and one half drive to the SLO County Jail in March. After Deputy Roach advised that he could not personally produce the video, the government immediately contacted two TO 23 POST-TRIAL MOTIONS 000058 Li.) warmth-t: ?3fo 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 62 of 245 Case Document 86 Filed 07/30/15 Page 30 of 35 custodians of record of the SL0 County Sheriff?s Office and requested immediate production of a copy of the video. The video recording was too big to email. The government requested overnight delivery; however, the video did not arrive to the US. Attorney?s Office until June 24, when it was produced to the defense.? In the video, the defendant indicated that he did not intend to strike the police helicopter with the laser, a sentiment that he repeated to the FBI in a recording obtained by TFO Nicholson and Agent Bach when they took custody of the defendant from the SLO County Jail later that day. The FBI recording had been produced to the defense on March 3 I well in advance of trial. Although the defendant asserts that the SL0 County Sheriff?s Office video is exculpatory, subpoenaed Deputy Roach (who was available to testify) and listed him as a witness on his witness list, the defendant did not call Deputy Roach as a witness or attempt to introduce the video that the government provided in discovery. CR. 58. Deputy Roach is not a federal agent. He did not participate in the investigation of the laser incident with the FBI, BPD or KCSO. He did not document the defendant?s recorded statements about the laser incident. He did not communicate with the FBI about his recording of the defendant?s Statements, nor did he advise the FBI about the existence of the video. The government had no knowledge or reason to believe that the SL0 County Sheriff?s Office had a recorded statement of the defendant about the laser incident. More important, there was no discovery or Brady violation, because the video was not within the government?s ?possession, custody or control? and the government had no reason to believe that such video existed before its June 18 contact with Deputy Roach. Bryan, 868 F.3d at 1036; see also United States v. Bender, 304 F.3d 161, 163-64 (lst Cir. 2002) (Court rejected defendant?s claim that his conviction should be set aside because government failed to disclose witness?s medical treatment records, noting that it was questionable whether government?s discovery obligations were triggered given that Brady does not require ?a prosecutor to seek out and disclose exculpatory or 17 There were several snafus by the carrier. As a result, the SL0 County Sheriff? 8 Of?ce had to resend the video. Upon receipt, the government immediately copied it and hand-delivered it to the Federal Defender?s Of?ce. GOVERNMENTS OPPOSITION TO 2?4 000059 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 63 of 245 Case Document 86 Filed 07/30/15 Page 31 of 35 impeaching material not in the government?s possession?); United States v. Hughes, 21 1 F.3d 676, 688 (1 st Cir. 2000) (stating that the government ?has no duty to produce evidence outside of its control?); United States v. Capers, 61 F.3d 1100, 1103-04 (4th Cir. 1995) (no Brady violation in failure to disclose notebook kept by informant because government unaware of notebook). When the government became aware of the existence of a video recording in the SL0 County Sheriff?s Of?ce possession, it immediately took stops to produce it to the defense, thereby satisfying its discovery and Brady obligations. 0. Recorded Statements of the Defendant to Ke rn Count herif f?s Of ?ce Bookin Of?cer The defendant also complains about the government?s production on June 25 of a video that it received from the Kern County Sheriff?s Office that depicted the defendant?s booking at the Kern County Jail at the time of the laser incident. The video contains poor audio and was produced as and when it was received. The fact of the defendant?s arrest and booking at the Kern County I ail was referenced in the initial discovery production on March 31. Any information about booking at the Kern County Jail was equally available to the defendant through the subpoena power of the court. in addition, the booking video was not within the government?s ?possession, custody, or control? until it was received in June. in light of the authorities set forth above, the government fully complied with its discovery and Brady obligations by producing the video immediately upon receipt. 3. The Government Does Not Have a Heightened Obligation to Uncover Exculoatorv Evidence. The defendant argues that, notwithstanding the equal access of both sides to state law enforcement agency records, the government has a heightened obligation to uncover exculpatory evidence. ?While the Supreme Court in Brady held that the Government may not properly conceal exculpatory evidence from a defendant, it does not place any burden upon the Government to conduct a defendant?s investigation or assist in the presentation of the defense?s case.? United States v. Marrero, 904 F.2d 251, 261 (5th Cir. 1990). Placing a higher burden on the government to uncover such evidence OPPOSITION TO 25 POST-TRIAL MOTIONS 000060 (64 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16?1, Page 64 of 245 Case Document 86 Filed 07/30/15 Page 32 of 35 would place the government in the ?untenable position? of having to prepare both sides of the case at once. Def. Mot. at 2129?10. The government in this case went above and beyond what it was required to do under Rule 16, Brady, Giglio and Jencks. At the request of the defense, the government sought out material which was not in its ?possession, custody or control? and turned it over to the defense as soon as it was received. Fed. R. Crim. P. 16. Notwithstanding the defendant?s constant accusations of wrongdoing, there is no evidence of bad faith on the part of the government. Moreover, it is reprehensible to speculate without any factual basis that the government is currently in possession of and suppressing ?additional materials, Brady or otherwise.? Def. Mot. at 22:20. The fact that the government obtained and produced the Flight Data Report of the Air Support Unit of the Kern County Sheriff? Office re?ects the due diligence that the government exercised in interviewing its witnesses during trial preparation. When the airmen revealed to the government?s attorneys that they maintain a Flight Data Report for internal audit purposes, the government immediately requested and produced the report to the defense on June 22. The report is not, however, an official law enforcement report that is maintained by the Kern County Sheriff's Of?ce. ?8 The report has entries for every call Air?1 responded to on the day of the incident. One small paragraph documents the actual laser incident and does not contain any exculpatory material. Although the report listed the name of a ride?along, the defense did not list the individual as a witness, nor is there any indication that the witness created any reports related to the incident. CR. 58. While the defense marked and listed the report as Defense Exhibit G, the defense never questioned the airmen about the report. CR. 71. During cross-examination, TFO Storar volunteered that a ride-along was present that night; however, the defense failed to elicit any testimony from the airmen about the third occupant or the contents of the [8 As noted in the government?s opposition to the defendant?s June 29 motion to dismiss the indictment, the Flight Data Reports ?are not considered of?cial reports and therefore are not part of the KCSO records system. The records are prepared to justify the expenses of the Air Support Unit.? CR. 73 at 7:11-13. GOVERNMENTS OPPOSITION TO 26 POST-TRIAL MOTIONS 000061 Lia-324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 65 of 245 Case Document 86 Filed 07/30/15 Page 33 of 35 Flight Data Report. R.T. 163. In sum, the defendant has failed to point to any legal authority to show that the government has a heightened burden to uncover exculpatory material beyond its obligations under Brady and its progeny, which the government has met, nor has the defendant shown that the government in fact suppressed exculpatory evidence in this case. 4. The Government Compiled with Its Obligations Under Giglio. Finally, without any factual support, the defense accuses the Court and the government of impeding defense efforts to obtain Giglio material. The defendant continues to assert that it is the government?s obligation to seek out Brady material from any potential source, including the personnel ?les of testifying local law enforcement of?cers. As previously noted, the defendant?s claim is not supported by applicable authority. See, e. United States v. Dominguez? Villa, 954 F.2d 562, 566 (9th Cir. 1992) (?nding ?[t]he prosecution is under no obligation to turn over materials not under its control?); United States v. 2013 WL 1694449, at DC. No. AWI-BAM (ED. Calif, April 18, 2013). CR. 32. Indeed, this Court not only held in Uni/ed States v. Perez, 2014 WL 3362240, *3 (E.D.Calif. July 9, 2014), that the government is under no obligation to turn over the personnel ?les of local law enforcement officers, but, citing Dominguez- noted that a district court ?exceed[s] its authority by requiring review of personnel ?les of state law enforcement witnesses." 1d. citing Donringuea?Vz??a. 954 F.2d at 565?566. Although the government did not and does not have in its possession, custody or control the personnel ?les of any state law enforcement officers in this case, before trial it questioned each of the state witnesses who testi?ed at trial about potential Giglio material and found none. In addition, the Court reviewed in camera the personnel ?les of various state law enforcement of?cers that were subpoenaed by the defense and found that the ?les did not contain any Giglio material. The defendant speci?cally blames the government for its inability to identify FBI Task Force Of?cer or TFO ,1 oshua Nicholson as a Kern County Sheriff?s deputy in order to subpoena his personnel GOVERNMENTS OPPOSITION TO 27 POST-TRIAL MOTIONS 000062 La324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 66 of 245 Case Document 86 Filed 07/30/15 Page camera review for potential Giglio material. Nicholson was identi?ed as a witness in the March 31 discovery production and was speci?cally identi?ed as an FBI TFO in the government?s June 14 reSponse to the defendant?s discovery motion ?led on June 5 when the government was on annual leave, as it noted when the case was set for trial.19 CR. 41, 44. However, the defense failed to subpoena Nicholson?s personnel ?le at that time and never asked the government to identify the agency that employs Nicholson. Before trial, the government asked TFO Nicholson, as it asked all other potential witnesses, state and federal, questions that bear on credibility. The government did not receive any negative information from Nicholson or from anyone else re?ecting negatively on his credibility. Moreover, unlike the defendant in Gig/i0, Nicholson was not a key witness in the government?s case. Giglio v. United States, 405 U.S. 150 (1972). Nicholson was not a percipient witness to the laser incident. He did not testify in the government?s case-in-chief and testified solely as a rebuttal witness.20 Even if Nicholson?s state personnel file contains information that bears negatively on his credibility, such information would ?not likely to have changed the verdict.? Gig/i0, 405 U.S. at 766. The bottom line is that the defendant has not shown a Brady violation based upon undisclosed material from Nicholson?s personnel ?le in the sole custody and control of the Kern County Sheriff's Office. Brady applies to evidence ?known to the prosecution but unknown to the defense.? United States v. Agurs, 427 U.S. 97, 103 (l 976). Here, there is no evidence that Brady material is contained in Nicholson?s personnel ?le and there is no evidence that the government knew of any unfavorable material contained therein. See Philips v. Woodford, 267 F.3d 966, 987 (9th Cir. 2001) (petitioner not entitled to evidentiary hearing to pursue Brady claim based on mere supposition that reports existed and 19 The defendant?s assertion that Nicholson was ?rst identi?ed in an FBI-302 as an ?Agent? is false. Def. Mot. at 23, 11.6. The FBI-302 identified ?Joshua Allan Nicholson? as a witness to the defendant?s recorded statement taken at the time of his arrest on the federal warrant. The report did not identify Nicholson as an ?Agent.? 20Nicholson testified in rebuttal about the defendant?s admission to ?mutilating? the laser pointer and about the location of radio towers visible from the Sillect or Moreland prOperty. R.T. 290: 7. On cross, Nicholson also testi?ed about the defendant?s self?serving statements six months after the laser incident, during his arrest by the FBI, that the laser strikes were accidental. GOVERNMENTS OPPOSITION TO 23 POST-TRIAL MOTIONS 000063 0?324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 67 of 245 Case Document 86 Filed 07/30/15 Page 35 of 35 would have been exculpatory); United States v. Lopez-Alvarez, 970 F.2d 583, 598 (9th Cir. 1992) (rejecting Brady claim where it was ?purely speculative? that information existed). IV. ION Based on the foregoing, the government respectfully requests that the Court deny the defendant?s motion. BENJAMIN B. WAGNER United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney Dated: July 30, 2015 By: KAREN A. ESCOBAR KAREN A. ESCOBAR Assistant United States Attorney OPPOSITION TO 29 MOTIONS 000064 (68 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 68 of 245 $300.5 Page 1 of 16 Complete questionnaire and. e-mail to: iaserreports@faa.gov OR send via fax to FAA Washington Operations Center Complex (WOCC) - {202) 267-5289 ATTN: DEN Name of pilo?crewmember reporting E-mail address and phonenumber (9.9., home, cell, work) i What seat in the cockpit were you occupying at the time of the laser beam exposure? Left f? Right Jumpseat Flight Engineer C: OtherXNot applicable How many crewmembers on the flight had laser light shined directly in their eyes? None (the laser light beam did not directly enter anyone's eyes) One Two Three Four or more Note: if any other crewmember had direct exposure to the laser light in their eyes, each person exposed should complete their own copy of this FAA Laser Beam Exposure Questionnaire Flight number, call sign and aircraft registration number SWA572. Southwast, N287WN) 1 Aircraft Make and Model Boeing 737. Cessna 172, Airbus A320, BAE Jetstream 32, Dornier 328) Category of aircraft (?Airplane Rolorcraft Lighterihan air Othertspeciiy) i Type of operation f" Commercial Aviation General Aviation f? Military Law Enforcement f? Medical News Reporting Other (specify) 1 Date of laser incident I Please enter date of iaser incident in Month Day, Year format ie.g., July 27, 2012). OR mouse click in the data ?eld to display a drop down arrow to view calendar and make your selection. The calendar selection is optimized for PCs and may not be available on a Mac. Time of laser incident (enter universal Time Coordinated (UTClZuiu) format rounded to the nearest ?ve minutes) :l United States v. Barry Lee Bowser, Jr. Government Exhibit 1 I 000065 (69 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 69 of 245 (. Case 1:15-cr-00088 Document 86?1 Filed Ohm/15 Page 2 of 16 Time of day during laser incident Location of aircraft during laser incident (Fixed Radial Distance (FRO) from navaid or airport, OR add latflong coordinates) Estimated geographic location of the laser source the laser source relative to KDFW approach and of runway 35L was approximately 220 degree radial and 2 miles. You can also provide estimated latllong coordinates) Approximate altitude of the aircraft above ground level (AGL) Primary direction of flight at the time of the laser incident r? NW NE 1 (?None/Hover What phase(s) of ?ight were you in during the laser incident? (check all that apply) Taxi [3 Takeoff Climb to altitude [3 Cruise altitude [j Descent Final approach Landing [3 ftAGLlievei?ight Hover El Other (specify) I interference: Did the laser illumination incident interfere with your performance of pilot or crewmember duties during the flight? 0? Yes No if you selected "Yes" above. how did the laser illumination interfere with your pilot or crewmember duties? Flight Path: Did the laser illumination cause the piloticrew member to change the aircraft flight path? No change in flight path (?Minor or non?adverse change if? Major or adverse change Disruption of Mission: Answer this question ONLY if you were conducting law enforcement. medical or military flight operations during the time oithe laser illumination incident. Did the laser illumination incident disrupt your mission? Yes No if you selected "Yes" above. how did the laser illumination interfere with your mission? 000066 (70 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 70 of 245 (. (. Case Document 86-1 Filed 0?115?0/15 Page 3 of 16 Color of the iaser light? (if multi?colOred. check ali that apply) . .c [j Yeilow Orange [3 White Blue Red Purpie Other (specify) I I Tracking: Did the laser beam appear to deliberately track the aircraft? (?Yes No Unsureiother(specity) I I I Cockpit illumination: Did the laser beam enter through the and illuminate any part of the cockpit? 0? Yes f? No Other (specify) I exposure: Did the the laser beam light shine directly into one or both of your eyes? Did not shine directly in my eye(s) Shined a little in my eye(s) Shined in my eye(s) ON HOUR Questionabelbw ONLY if the laser beam shined a little 201' inlyotir ems) Did you experience any adverse VISION from the exposure? (check all that may apply) [3 Did not experience adverse vision effects [3 Glare (could not see past the light while it was in your eye(s)) Temporary ?ash blindness and/or after images (similar to a camera flash) One or more blind spots (spots in visual ?eld lasting longer than 5-10 minutes) [3 Blurry vision [3 Signi?cant loss of night vision Other (specify) *Exampies of comm on vision effects Glare.- A temporary disruption in vision caused by the presence of a brightiight [such as an oncoming car's headlights) within an indiViduai's fieid of vision. Glare iasts oniy as ion 9 as the bright iightis actuaiiy present within the individuals tieid of vision. Fiash blindness: A temporary visual interference effect that persists after the source of the has ceased, similar to a bright camera ?ash. After image: An image that remains in the visuai ?eld after an exposure to a bright light. Blind Spot: A temporary or permanent ioss of vision ofparr of the visual field. Uniike an after image, a blind spot does not fade, or fades very siowiy (taking many minutes, hours or days to fade out). Did you experience any adverse PHYSICAL EFFECTS from the exposure? (check all that may apply) Did not experience adverse physical effects Watering eye(s) El Eye(s) discomfort or pain Headache Feeling of shock Disorientation or dizziness Other (specify) Did you rub your eye(s) after the exposure? t" No signi?cant rubbing Rubbed themalittle Rubbed them vigorously gin-1??: - - - it?d 000067 (71 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 71 of 245 Enter the medical facility name: What type of doctor did the primary or most comprehensive examination of your eyeis)? Retinal Specialist Ophthalmologist (medicai doctor specializing in health) t? Optometrist (tests for visual acuity and diseases; prescribes and ?ts glasses/contacts) Optician (?ts glassesfcontacts) Emergency room doctor. nurse or technician Other (specify) Describe the results of the medical evaluation: Did you report the incident to Air Traffic Control f" Did not report to ATC Reported via aircraft radio communication f? Reported via phone call Reported via walk-in to FAA ATC facility Other (Specify) Did you report the laser incident to an FAA Flight Standards (AFS) fieid office? FSDO, CMO, CHDO) Did not report to AFS Reported via aircraft radio communication Reported via phone call (A Reported via walk-in to FAA AFS ?eld of?ce Other (Specify) if you reported to an FAA AFS field office, enter the name and office location 000068 (72 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 72 of 245 Did you have any prior knowledge or training on the hazards and effects of lasers aimed at a piloucrewmember? f? None Basic information about the hazards and effects of lasers Detailed. speci?c information such as how to recognize and recover from laser illuminations Simulator training or similar exposure to laser?like illuminations in an aviation training environment Other (specify) I Please feel free to add caem?nts'ab?ae ?ii??i{?iit?ihle I?s'?r fn?ici?ntfr?pbrt'ing, andlor subsequent outcome: Did you 'ie'part the the D'o?hiegti?' incidents Network No Yes What local Iawe?foroement agencf?c'?d you contact? (include their phone?number) was an arrest made? 0' No arrest. or arrest unlikely Maybe. still working the case (A Yes. arrest was made Arrest status is unknown Other (specify) Thank you for taking time to comptete this questionnaire. Please "save" the completed questionnaire and submit to the FAA using one of the two methods described below: 1. Attach the saved PDF to an email and send to: iaserreports@faa.gov 2. Send via fax to FAA Washington Operations Center Comptex (WOCC) (202) 267-5289 ATTNHi,- 2-53: r. u?i? least? .3 MFA -- 000069 (73 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 73 of 245 ?mung, an 11.1151: 111 a 1x1 in, Augusta untugit: rage 1 OI 3 . i 0? Case?1:15?cr?0008 Document86~1 .Flled Page60f 16 Finding an Angle in a Right Angled Triangle Angle from Any Two Sides We can find an unknown angle in a riqht?anqled triangle as long as we know the of two of its sides. Example The ladder leans against a wall as shown. 5 What is the angle between the ladder and the wall? 2.5 The answer is to use Sine, Cosine or Tangent! But which one to use? We have a special phrase SOHCAHTOA to help us, and we use it like this: Step 1: find the names of the two sides we know 3W5 my all? pos i 9 Adjacent I: I Adjacent is adjacent to the angle, United States v. Barry Lee Bowser, Jr. - Opposite is opposite the angler Government Exhibit 2 com/alga 7/24/20 15 000070 (74 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 74 of 245 an 11.11516 a A?gteo trlangie Page 2 of5 Case Document 86-1 Filed 0? ?50/15 Page 7 of 16 Example: in our ladder example we know the length of: the side Opposite the angle which is 2.5 the longest side, called the Hypotenuse, which is 5 Step 2: now use the first letters of those two sides (Opposite and Hypotenuse) and the phrase to ?nd which one of Sine, Cosine or Tangent to use: Sine: sin(0) Opposite Hypotenuse ?Cosine: (305(8) Adjacent Hypotenuse Tangent: tan(8) Opposite Adjacent In our example that is Opposite and Hypotenuse, and that gives us ?SOHcahtoa?, which tells us we need to use Sine. .Step 3: Put our values into the Sine equation: Sin Opposite/ Hypotenuse 2.5 5 0.5 .Step 4: Now solve that equation! sin(x) 0.5 Next (trust me for the moment) we can re-arrange that into this: And then get our calculator, key in 0.5 and use the sin"1 button to get the answer: com/a1 gebra/tri 7/24/201 5 000071 (75 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 75 of 245 rmumg, an range: It: a menu angleo trlangie Page '5 of 5 i Case Document 86-1 Filed Page 8 of 16 And we have our answer! But what is the meaning of sin?1 Well:r the Sine function "sin" takes an angle and gives us the ratio "opposite/hypotenuse", sin :Ang? Opposite .Hypotenuse .1 ?h m" . . But sin? (called "inverse sine") goes the other way it takes the ratio "opposite/hypotenuse" and gives us an angle. Example: - Sine Function: sin(30?) 0.5 - Inverse Sine Function: 30? I On the calculator press one of the following (depending on your brand of calculator): either '2ndF sin? or 'shift sin?. On your calculator, try using sin and sin'1 to see what results you get! Also try cos and cos?. And tan and tan?. Go on, have a try now. 7/24/2015 000072 (76 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 76 of 245 rage 4+ o: a usuauE cu: rule-51v 111. a J.\.15ul. 11115101.! 1 1115111515 .f Case Document 86-1 Fiied 0980/15 Page 9 of 16 Step By Step These are the four steps we need to follow: 0 Step 1 Find which two sides we know out of Opposite, Adjacent and Hypotenuse. - Step 2 Use SOHCAHTOA to decide which one of Sine, Cosine or Tangent to use in this question. - Step 3 For Sine calculate Opposite/Hypotenuse, for Cosine calculate Adjacent/Hypotenuse or for Tangent calculate Opposite/Adjacent. 0 Step 4 Find the angle from your calcuiator, using one of sln'l, cos'1 or tan"1 Examples Let?s look at a couple more examples: Example Find the angle of elevation of the plane from point A on the ground. 300 400 a Step 1 The two sides we know are Opposite (800) and Adjacent (400). - Step 2 SOHCAHTOA tells us we must use Tangent. - Step 3 Calculate Opposite/Adjacent 300/400 0.75 '0 Step 4 Find the angle from your calculator using tan"jl Tan x? opposite/adjacent a 300/400 0.75 tan?1 of 0.75 36.9? (correct to 1 decimal place) 7/24/201 5 000073 (77 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 77 of 245 mumg an 1111515 111 a. ?1511;. nugmu 1 mangle. . rage 3 CI 3 . i Case Document 86-: Filed 071-30/15 Page 10 of 16 Unless you're told otherwise, angles are usually rounded to one place of decimals. Example A 0 Find the size of angle 0 8022'! 6,750 0 Step 1 The two sides we know are Adjacent (6,750) and Hypotenuse (8,100). Step 2 SOHCAHTOA tells us we must use Cosine. Step 3 Calculate Adjacent/ Hypotenuse 6,750/8,100 0.8333 I Step 4 Find the angle from your calculator using cos?1 of 0.8333: cos a? 6,750/8,100 0.8333 (3015"1 of 0.8333 33.6? (to 1 decimal place) Question Questiouj Question; Question 4 Question 5 Question 6 Question 7 Question 8 ue :on ion 0 .H f?hv?Iw??ow Search Index About Contact Contribute Cite This Page Privacy Copyright 2014 MathsIsFun.com 7/24/1301 5 000074 (78 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 78 of 245 iuyiL-migzcu Lila-11515 rage J. OI A Case Document 86-1 Filed Page 11 of 16 Cleave Books The Right?angled Triangles Calculator clean. Isle-arm Show values to . . . ?flsigni?cant ?gures. edge a 3 ?100 . units edge .- WIS edge 2110 . units angle A 2771 degrees angle 87.3 degrees area L196. 099.-. i square units Remember: Appropriate units need to be attacked. Very large and very small numbers appear in e?Formar. Unvalued zeros on all numbers have been suppressed The original inputs have NOT been ac?usted in any way. A note on Format and Accuracy is available. Additional Information The usual way of identifying a triangle is by ?rst putting a capital letter on each vertex (or corner). Like, for example, A C. Now, a reference to A can mean either that vertex or, the size of the angle at that vertex. Here it means the size. The edges are identi?ed by using the small version of the Opposite vertex- letter. So, a is opposite is opposite is opposite C. Again, the small letter could be identifying the edge or the length of the edge. Here it is the length. The name hypotenuse is given to the Where (for brevity) it says 'edge 'angle and so on, it should, more correctly, be something like 'length of edge a' or 'edge- length? or 'size of angle etc. If the perimeter is needed, add together the of edge a edge edge 0 Note that giving the sizes of the two angles, A will not allow any other sizes to be found. At least one dimension, of edge-length or area, has to be supplied. Remember the drawing is NOT to scale. It is for illustration of the parts only. Sometimes two different solutions are United States v. Barry Lee Bowser, Jr. Government Exhibit 3 000075 (79 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 79 of 245 mgm?m1g1eu triangle pas-?mater Page 2 012 Case Document 86~1 Filed Page 12 of 16 longest edge in a right-angled triangle. (It possible. If one edge is known, and one is the edge opposite to the right angle and angle; try putting in the edge length ?rst is in this case.) . as a and second as b; while putting in the angle as the SAIVIE letter each time. Go to Cleave Boolgs main Index Version 1.4 7/28/2015 000076 (80 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 80 of 245 rage J. U1 .1. Auyib?; ?1515/? .1. vulyuluu}; .. f. Case Document 86-1 Filed Ohm/15 Page 13 of 16 Cleave Books Triangles Calculator AQJUTSF sentient [Chit Show values to . . . 3 :lsigni?cant ?gures. edgea= 500 units edge so. units edge c= 828 units angleAs 3.7-1. 1. degrees angle 52.9 degrees area '165 000 square units Remember: Appropriate Emits need to be attached. Very large and very small numbers appear in e-Format. Unvalaea? zeros on all numbers have been suppressed The original inputs have NOT been adjusted in any way. A note on Format and Accuracy is available. Additional Information The usual way of identifying a triangle is by ?rst putting a capital letter on each vertex (or corner). Like, for example, A C. Now, a reference to A can mean either that vertex or, the size of the angle at that vertex. Here it means the size. The edges are identi?ed by using the small version of the opposite vertex? letter. So, a is opposite is opposite is opposite C. Again, the small letter could be identifying the edge or the length of the edge. Here it is the length. The name hypotenuse is given to the Where (for brevity) it says 'edge 'angle and so on, it should, more correctly, be something like 'length of edge a' or ?edge- length' or 'size of angle etc. If the perimeter is needed, add together the of edge a edge edge 0 Note that giving the sizes of the two angles, A will not allow any other sizes to be found. At least one dimension, of edge-length or area, has to be supplied. Remember the drawing is NOT to scale. It is for illustration of the parts only. Some?mea A-i-F'Pnrani- anittf?inna ow: United States v. Barty Lee Bowser, Jr. Government Exhibit 4 000077 (81 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 81 of 245 mgnt?Angleci 'lnangle (Lei-eulator -. Page 2 of 2 Case Document 86-1 Filed Page 14 0f 16 longest edge in a right-angled triangle. (It possible. If one edge is known, and one is the edge opposite to the right angle and angle; try putting in the edge length ?rst is in this case.) as a and second as b; while putting in the angle as the letter each time. Go to Cleave Books 'main Index Version 1.4 7/28/2015 000078 000079 91:10 91: 8519 :19 Angles to scale (1 pt 1 feet): i, ?Green .4 miles (2112 feet) distance 100 foot height Tower 2 VgBlue 1/8 miles (660 feet) distance 500 foot height (altitude) AIR-4 helicopter 3l!:l 39193 United States v. Barry Lee Bowser, Jr, Government Exhibit 5 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 82 of 245 (82 of 324) (83 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 83 of 245 Document 86-1 FiledO Calculating Angle From Defendant To Calculating Angle From Defendant To Top Helicopter Of Tower 2 STEP 91;) E: S133 GEE: Calculate the length of the hypotenuse. Calculate the length of the hypotenuse. . Side A Height of AIR-1 to the ground: Side A Height of Tower 2 to ground: 500 feet 100 feet Side Distance lion} to ground beneath Side Distance from to Tower 2 AIR-1: .4 miles 3 2112 feet 1/8 mile .125 miles 660 feet Pythagorean Theorum: Pythagorean Theorem: A2 32 (hypotenuse)2 A2 B2 (hypotenuse)2 1002 21122 2114.2 5002 6602 3232 STEP 1W9: STEP TWQ: Calculate the angle of the laser from to Calculate the angle of the laser from to the 1 (Sine). top of Tower 2. Side A Opposite side (to wear is standing): Side A Opposite side (to wear is standing): 500 feet 100 feet Hypotenuse 828 feet Hypotenuse 2114 feet SOHCAHTOA Using Sine to calculate SOHCAHTOA Using Sine to calculate angles of 90 degree triangle. angles of 90 degree triangle. Sine Opposite side length/Hypotenuse length Sine Opposite side length/Hypotenuse length Sine 500/828 .604 Sine 100/2114 .047 Angle Sine'l (Opp/Hyp) 37.1 degrees Angle Sine'l (Opp/Hyp) 2.7 degrees United States v. Barry Lee Bowser, Jr. Government Exhibit 6 000080 (84 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 84 of 245 Case Document 85 Filed 07115/15 Page 1 of 3 United States v. Barry Lee Bowser, Jr. 1:15-cr-00088 NASA?Pythagorean Theorem Exhibit A 000081 (85 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 85 of 245 Pythagorean ?l'hcorem . rage I. or 2 Case Document 85 Filed 07/15/15 Page 2 of 3 Text Only Site Non-Flash Version Contact Glenn For any right triangle with sides a and and hypotenuse h, the square of the hypotenuse is equal to the sum of the squares of the other two sides. has a2+ To better understand certain problems involving aircraft and propulsion it is necessary to use some mathematical ideas from trigonometry the study of triangles. Let us begin with some de?nitions and terminology which we will'use on this slide. We start with a right triangle. A right triangle is a three sided ?gure with one angle equal to 90 degrees. A 90 degree angle is called a right angle and that is where the right triangle gets its. name. We de?ne the side ofthe triangle -. opposite from the right angle to be the hypotenuse, h. It is the longest side'of the three sides of the right triangle. The word hypotenuse" comes from two Greek words meaning "to stretch", since this is the longest side. We are going to label the other two sides a and b. The Pythagorean Theorem is a statement relating the of the sides ofany right his ngle. The theorem states that: For any right triangle, the square of the hypotenuse is equal to the sum of the squares of the other two sides. Mathematically. this is written: at?? The theorem has been known in many cultures. by many names. for many years. Pythagoras. for whom the theorem is named, lived in ancient Greece, 2500 years ago. it is believed that he learned the theorem during his studies in Egypt. The Egyptians probably knew of the relationship for a thousand years before Pythagoras. The Egyptians knew of this relationship for a triangle with sides in the ratio Pythagoras generalized the result to any right triangle. There are many different algebraic and geometric proofs of the theorem. Most of these begin with a construction of squares on a sketch of a basic right triangle. On the ?gure at the top of this page. we show squares drawn on the three sides ofthe triangle. A square is the special case of a rectangle in which all the sides are equal in length. The area A of a rectangle is the product of the sides. So for a square with a side equal to a, the area is given by: 7/1 5/2015 000082 (86 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 86 of 245 Pythagorean 't'heorem Page 2 or 2 Case Document 85 Filed 07/15/15 Page 3 of 3 a *a So the Pythagorean theorem states the area of the square drawn on the hypotenuse is equal to the area a"2 of the square drawn on side a plus the area of the square drawn on side 13. Here's an interactive Java program that let's you see that this area relationship is true: We begin with a right triangle on which we have constructed squares on the two sides. one red and one blue. We are going to break up the pieces of these two squares and move them into the grey square area on the hypotenuse. We won't tose any material during the operation. So if we can exactly fill up the square on the hypotenuse. we have shown that the areas are equal. You work through the construction by clicking on the button labeled "Next". You can?go "Back" and repeat a section. or go alt the way back tothe beginning by clicking on "Reset". What is it doing? The ?rst step rotates the triangle down onto the blue square. This cuts the blue square into three pieces. two triangles and a red rectangle. The two triangles are exactly the same size as the original triangle. The "bottom" of the original triangle exactly ?ts the vertical side of the square. because the sides of a square are equal. The red rectangle has its vertical sides equal to the-base of the original triangle. and its horizontal sides equal to the difference betWeen the "bottom" side and the "vertical" side of the originat triangle. Using the terminology from the figure at the top of this page. the dimensions of the red rectangle are: vertical length horizontal length - a The next step Is to move the red rectangle over adjacent to the red square. The rectangle sticks out the top of the red square and the two triangles remain in the blue-sqtlare. The?heXt step is to move one Of the blue triangles verticallyinto the hypotenuse square. It ?ts exactly along the Side of the hypotenuse square because the sides of a square are equal. The next step is to move the other blue triangle into the hypotenuse square. (We are haif way there!) The next step is to siide the form of the original triangle to the left into the red region: The triangle cuts the red region into three pieces, two triangles and a small yellow square. The original triangle fits exactly into this region because of two-reasons; the vertical sides are identical, and the horizontal side of the red region is equal to the length ofthe red square plus the horizontat length of the red' rectangle iwhich we moved. The horizontal length of the red region is: horizontal length a (h - a) The horizontal length of the red region ls'exactiy the length of the horizontal side of the original triangle. The yeliow square has dimenSions - a on each side. The next step is to move one of the red triangtes into the hypotenuse square. Again it's a perfect The next step is to move the ?nal red triangle into the hypotenuse square. Now if we look at the grey square that remains in the hypotenuse square, we see that its dimensions are - a; the long side of the triangle minus the short side. The ?nal Step is to move the yellow square into this hole. It's a perfect ?t and we have used all the material from the original red and blue squares. Activities 9M Navigation .. Compressible Flow Hypersonic Index Beoinner?s Guide Home Page Editor: Nancy Hall NASA Of?cial: Nancy Hail Last Updated: May 05 2015 Contact Glenn Inspector General Hotllne i Equal Employment Opportunity Data Posted Pursuant to the No Fear Act Budgets, Strategic Plans and Accountability Reports Freedom of Information Act The President?s Management Agenda NASA Privacy Statement, and Accessibility Certification grenasa. 1 2/airplane/pythag.html 7/1 5/20 1 5 000083 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 87 of 245 Case Document 84 Filed 07/15/15 Page 1 of 30 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATEMAN, CA Bar #241210 ERIN SNIDER, OR Bar #1 16342 Assistant Federal Defenders 2300 Tuiare Street, Suite 330 Fresno, CA 93721-2226 Telephone: (559) 487-5561 Fax: (559) 487-5950 Attorneys for Defendant BARRY LEE BOWSER, 3R. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF Plaintiff. vs. BARRY LEE BOWSER. 3R. Defendant. Case No. NOTICE OF MOTION AND MOTION FOR JUDGMENT OF ACOUITTAL OR NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33: MEMORANDUM OF POINTS AND AUTHORITIES AND EXHIBIT Date: To be determined Time: Judge: Hon. Lawrence J. O?Neill (87 of 324) 000084 (88 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 88 of 245 Case Document 84 Filed 07/15/15 Page 2 of 30 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES ..3 I. INTRODUCTION. ..3 II. THE COURT SHOULD SET ASIDE THE VERDICT AND ENTER A JUDGMENT OF ACQUITTAL BECAUSE THE GOVERNMENTS EXPERT WITNESS WAS NOT QUALIFIED ..3 THE COURT SHOULD GRANT A NEW TRIAL BASED ON PROSECUTORIAL MISCONDUCT ..6 A. Fabricated Witness Statements and False Theories Formed the Basis of the Criminal Complaint and the Government?s Theory of the Case ..6 B. The Government Repeatedly Violated This Court?s Pre-Trial Rulings ..8 I. The Court?s Ruling that Mr. Bowser?s Move to Arkansas Was Irrelevant ..8 2. The Court?s Speci?c Rulings on Dr. McLin?s Proffered Testimony ..9 i. The laser beam necessarily intersected the window, consistent with deliberate aiming ofthe cockpit ..9 ii. Whether a person on the ground could see the laser beam illumination. ..10 ?Tracking? is consistent with deliberate conduct, not accidental or random acts .. 1-0 iv. Green versus red laser pointers ..1 C. The Prosecutor Misstated the Evidence During Closing Arguments D. Mr. Bowser Was Deprived of a Fair Trial as a Result of the Prosecutor?s Misconduct ..15 IV. THE COURT SHOULD GRANT A NEW TRIAL BASED ON DISCOVERY AND BRADY VIOLATIONS ..16 A. Discovery violations and Brady Non?Compiiance ..I7 I. The Pilot?s Revelation oflriis Reporting to the FBI on Direct Examination .. 7 2. The Government Untimely Produced to the Defense Three Recordings of Mr. Bowser?s Statements to Law Enforcement in the Weeks Before Trial ..18 i 000085 (89 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 89 of 245 Mid?I 12 Case Document 84 Filed 07/15/15 Page 3 of 30 TABLE OF CONTENTS (cont.) 3. The Government Must Not Be Permitted to Rely on Its Untenabie Position that the Defense Has Equal Access to State and Local Law Enforcement Materials and that the Defense May Obtain a Subpoena for Discoverabfe Materials .. 4. A Preper Review for Impeachment Materials For Testifying Law Enforcement Of?cers Was Not Done .. V. CONCLUSION .. ..21 "22 ..24 000086 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 90 of 245 Case Dacument 84 Filed 07/15/15 Page 4 of 30 TABLE OF AUTHORITIES FEDERAL CASES Brady v. Maiyland 373 US. 83 (1963) ..passim Dauberr v. Merrell Dow Pharmaceuticals, Inc. 509 US. 579 (1993) ..3, 4 Estate ofBarabin v. AslenJohnson, Inc. 740 F.3d 457 (9th Cir. 2014) ..5 Kyles v. Whitley 514 ..23 Kuth Tire Co. v. Carmichael 526 US. 137 (1999) ..4 Parle v. Runnels 505 F.3d 922 (9th Cir. 2007) ..15 United Slates v. Campos?Nunez 584 F. App?x 473 (9th Cir. 2014) ..5 United States v. or! 472 F.3d 1 106 (9th Cir. 2007) ..23 United Siaies v. Gardenhire 784 F.3d 1277 (9th Cir. 2015) ..16 United States v. Jef?'ey Lee Gentry Case No. (ED. Cal. ?led Feb. 10, 2011) ..16 United States v. Henthorn 931 F.2d 29 (9th Cir. 1991) ..23 United States v. Jennings 920 F.2d 1488 (9th Cir. 1992) ..23 United Slams v. Kerr 981 F.2d 1050 (9th Cir. 1992) ..15 United States v. Nixon 418 ..21 United Sfates v. Nobari 574 F.3d 1065 (9th Cir. 2009) ..15 Uniied Slales v. Price 566 F.3d 900 (9th Cir. 2009) ..20 (90 of 324) 000087 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 91 of 245 Case Document 84 Filed 07/15/15 Page 5 of 30 United States v. Rodriguez ?F.3d W, 2015 WL 3875518 (9th Cir. June 24, 2015) .. 15 United States v. Brett Lee Scott 1:13-cr-001 10-AW1 (ED. Cal. ?led Mar. 4, 2013) ..16 United States v. Simtob 901 F.2d 799 (9th Cir. 1990) ..15 United States v. Smith 756 F.3d 1070 (8th Cir. 2014) ..16 United States v. Smith 962 F.2d 923 (9th Cir. 1992) ..16 United States v. Weatherspoon 410 F.3d 1142 (9th Cir. 2005) ..15, 16 United States v. Timothy Earl Wilson Case No. (ED. Cal. ?led Apr. 1, 2014) ..15 United States 12. Young 571 F. App?x 558 (9th Cir. 2014) ..5 FEDERAL STATUTES AND REGULATIONS United States Code 18 U.S.C. 39A ..3, 15 18 U.S.C. 3500 ..18 Federal Rules of Criminal Procedure Rule 16 17 Rule 29 ..5, 6, 24 Rule 33 ..6, 24 Federal Rules of Evidence Rule 401 ..4 Rule 402 ..4 Rule 403 ..4 Rule 609 .21 Rule 702 ..3, 4, 5 Rule 704(1)) ..4, 9 iv (91 of 324) 000088 (92 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 92 of 245 Case Document 84 Filed 07/15/15 Page 6 of 30 000089 (93 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 93 of 245 ?n i2 Case Document 84 Filed 07/15/15 Page 7 of 30 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATBMAN, CA Bar #24 E210 ERIN SNIDER, OR Bar #i E6342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, CA 93721-2226 Telephone: (559) 487?556l Fax: (559) 487-5950 Attorneys for Defendant BARRY LEE BOWSER, JR. IN THE STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA. Plaintiff. vs. BARRY LEE BOWSER. JR.. Defendant. TO: PLAINTIFF: PLEASE TAKE NOTICE that, at a hearing to be set by the Court, defendant, Barry Lee Bowser, 31:, through undersigned counsel, wil enter ajudgment of acquittal or in the alternative grant him a new trial in the interests of justice based upon the grounds discussed in this moti presented on this motion. This motion is based on the instant motion and notice of motion, the attached memorandum of points and authorities, the Federal Rules of Criminal Procedure and Evidence, all files, records, and transcripts in this case, and such evidence and argument as may be presented at the hearing on this motion. BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN A. ESCOBAR, ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR Case No. 1:15-cr-00088 NOTICE OF MOTION AND MOTION FOR JUDGMENT OF ACOUITTAL OR NEW TRIAL UNDER FEDERAL RULES OF CRIMINAL PROCEDURE 29 AND 33: MEMORANDUM OF POINTS AND AUTHORITIES AND EXHIBIT Date: To be determined Time: Judge: Hon. Lawrence J. O?Neill i move this Court to set aside the guilty verdict and on and any argument or testimony that may be 000090 (94 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 94 of 245 Case Document 84 Filed 07/15/15 Page 8 of 30 Respectfully submitted, DATED: JuIy 15, 2015 By: HEATHER E. WILLIAMS Federal Defender Janet Bateman JANET BATEMAN ERIN SNIDER Assistant Federai Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. 000091 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 95 of 245 Case Document 84 Filed 07/15/15 Page 9 of 30 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Defendant, Barry Lee Bowser, Jr., was charged in a single?count indictment with aiming a laser pointer at an aircraft in violation of 18 U.S.C. 39A. He was convicted on July I, 2015, after a jury trial. Mr. Bowser presented a defense that although he caused the events of September 12, 2014, where a Kern County Sheriffs Office helicopter was struck with a green light from a laser pointer, he did so accidentally. The prosecution presented testimony from the KCSO pilot, the KCSO tactical flight officer, a Bakersfield Police Department arresting officer, a KSCO deputy member of an FBI task force, an optometry/vision science expert, and an employee of the property where Mr. Bowser was living at the time of the incident. Mr. Bowser now moves this Court for ajudgment of acquittal, or a new trial, because the government?s expert witness was not qualified and should not have been permitted to testify. Mr. Bowser also moves for a new triai based on prosecutorial misconduct relating to presentation of false facts in support of spurious arguments and shifting case theories and (2) repeated violations ofthis Court?s pre?trial rulings. Finally, the government?s numerous discovery and violations of Brady v. Maryland, 373 U.S. 83 (i 963), alone are further grounds for relief. THE COURT SHOULD SET ASIDE THE VERDICT AND ENTER A JUDGMENT OF ACQUITTAL BECAUSE THE EXPERT WITNESS WAS NOT QUALIFIED. On May 27, 2015, the government disclosed its intention to call Dr. Leon McLin as an expert at trial. According to the government, Dr. McLin, a Senior Research Optometrist for the Air Force Research Laboratory, ?leads a vision science team conducting research on the visual and functional effects of lasers.? He is also an advisor for ?laser bioeffects research.? In its expert disclosure letter, the government listed seven points of proposed testimony. None of these seven items related to the science involving the effects of laser exposure on the human eye. The defense filed a motion to exclude Dr. McLin?s testimony because it did not meet the legal standard for admission of expert testimony under Federal Ruie of Evidence 702, Dauberl v. (95 of 324) 000092 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 96 of 245 Case Document 84 Filed 07/15/15 Page 10 of 30 Mehre/Z Dow Pharmaceuticals, Inc, 509 US. 579 (i 993), and K2!th Tire Co. v. Carmichael, 526 US. 137 (I999). in the alternative, the defense challenged each ofthe seven testimony tepics under Federal Rules of Evidence 704(b), 702, 40E 402, and 403. At the hearing on the motion, this Court did not speci?cally rule on the motion to exclude Dr. McLin?s testimony under FRE 702 and Dan/Jeri and Kym/10, but it did make speci?c rulings limitng his testimony. Dr. McLin should never have been allowed to testify. He is an Optometrist, with a background in clinical care. He is a vision scientist who studies the ?visual and functional e?fects of lasers." His curriculum vitae lists ?over 100 publications on laser effects and vision,? with a representative sampling oftitles including: ?Assessing Visual Field Restrictions Imposed by Eyewear . . . ?Determining a Nominal Ocular Dazzle Distance,? ?Laser Glare Disruption of Visual Tracking,? Spatial Vision Modeiing Approach . . . ?Principles for Safe Exposures to Lasers in Human Subjects . . . and ?Visual Recovery for Complex Targets After Broadband Flash Exposures.? None of his scienti?c studies sought to differentiate between accidental and purposeful laser strikes or reported findings on users of lasers. He is not a physicist, electricai engineer, applied scientist, or geometrist. Nor is he a criminologist, or behaviorist. The facts at issue in this case related only to whether Mr. Bowser had intentionaily aimed his laser pointer at the helicopter. There was no medical or optometric evidence relating to the pilots and flight crew or to Mr. Bowser. There was nothing at issue relating to safe exposure to lasers or to the effects of lasers on the eye. The government did not notice any such testimony. Rather, the government called Dr. McLin to testify, and the Court permitted Dr. McLin to testify, about laser beams intersecting cockpits at different angles, the reflection of laser beams on aircraft and what a person on the ground could or could not see, ?tracking? behavior, of lasers, the probability of an accidental laser strike, and the ease or difficulty of striking an aircraft with a iaser pointer. in addition to its pre-trial motion, the defense objected severai times throughout Dr. McLin?s testimony that he was not qualified to testify generally and in response to particular questions. Despite raising a challenge to Dr. MoLin?s qualifications pre-trial and during trial, the Court never made a ruling on the threshold question of his qualifications and admissibility. The (96 of 324) 000093 LII-l3wa 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 97 of 245 Case Document 84 Filed 07/15/15 Page 11 of 30 FRE 702). Where expert testimony is erroneously admitted, reviewing courts begin with the presumption of prejudice. Estate quarabin, 740 F.3d at 465. Here, Mr. Bowser was clearly prejudiced by Dr. McLin?s testimony. At the close government?s case?in?chief, the defense made a motion under Federal Rule of Criminal Procedure 29' for a judgment of acquittal. The Court denied the motion, finding that: The state of the evidence is that there were two strikes, that they were within a few seconds of one another. And there is expert testimony from yesterday afternoon indicating that the duration of the?~first of all, the number is important, and the duration and the combination of the two based on the evidence is indicating of tracking. Tracking, of course, is indicative ofintentional conduct. It is circumstantiai evidence, and, therefore, it is ajury issue, not a Court/legal preclusion issue, and Ruie 29 motion is denied. there would have been no evidence to sustain a conviction. At the hearing, the Court ruled: the tracking of an aircraft and laser illumination of the cockpit are consistent with deliberative and purposeful, not random or accidental acts, that is precluded for the expert to testify to. That does go to the issue of argument and that is beyond what an expert can or should testify to. Ninth Circuit has emphasized that the trial court must exercise its gatekeeping authority with respect to the relevance and reliability of an expert witness: ?Just as the district court cannot abdicate its role as gatekeeper, so too must it avoid delegating that role to thejury.? Estate of Barabin v. AstenJohnson, Inc, 740 F.3d 457, 464 (9th Cir. 2014); see also United States v. Young, 571 F. App?x 558 (9th Cir. 2014) (unpublished) (reversing conviction and remanding where trial court failed to rule on admissibility of expert testimony); United States v. Campos- szez, 584 F. App?x 473, 474 (9th Cir. 2014) (unpublished) (finding the district court abused its discretion in admitting expert testimony without making the requisite findings of reliability under p. 260?61.) Without that unquali?ed testimony relating to circumstantial evidence of intent, Moreover, as is discussed more fully below, the Court?s deniai ofthe Rule 29 motion relied on the expert?s testimony that the Court had previously precluded at the pretrial hearing. (MIL Tr, p. 40.) In denying the Rule 29 motion, the Court reiied on the expert?s testimony that of the 000094 (98 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 98 of 245 Case Document 84- Filed 07/15/15 Page 12 0f 30 ?tracking, of course, is indicative of intentional conduct.? The Court considered evidence trial pursuant to Rule 33 on this ground. MISCONDU CT. The government?s broad misconduct and twisting of the facts undermines the jury? Rule 33, in the interest ofjustice. A. of the Criminal Complaint and the Government?s Theory of the Case. aimed the Easer at the helicopter several times.? BPD and one recorded statement to the FBI) and an incriminating statement to his friend. government stated that the statements had been noted in reports, provided in discovery, an self-inculpatory. to the government, that ?Bowser had told him that he had aimed the laser at the helicopter several times.? (See #26, p. 3, line I 1.) Jared Ashby and dated October 28, 2014.! The report memorializes Of?cers Ashby and precluded and it should be presumed that thejury did as well. As such, without Dr. McLin?s testimony, the Rule 29 motion should be granted. In the alternative, the defense requests a new THE COURT SHOULD GRANT A NEW TRIAL BASED ON PROSECUTORIAL verdict. Therefore, the Court should grant Mr. Bowser a new trial, pursuant to its authority under Fabricated Witness Statements and False Theories of Proof Formed the Basis FBI Special Agent Erick Bach was the author of the affidavit in support of the federai criminal complaint. in the affidavit, FBI SA Bach wrote that on October 26, 2014, officers spoke with Mr. Bowser?s friend, Danny Gibson, who stated that ?he had a conversation with Bowser about the laser incident with the helicopter and Bowser admitted to Gibson that he had On May 26, 2015, the government ?led motions in limine. In the motions in limine, the government noted that Mr. Bowser made ?two sets of statements? to law enforcement (one to the On May 27, 2015, the government filed its trial brief. In its description of the facts against Mr. Bowser, it relied on Mr. Gibson?s purported statements. Mr. Gibson said, according In the late afternoon of Friday, June 19, 2015, just before the motions in limine hearing on Monday, June 22, the government produced to the defense a BPD report authored by Officer it had The were Although the report contains the heading "aircraft incident," the government asserted that it was created in relation to a theft 6 000095 (99 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 99 of 245 14 Case Document 84 Filed 07/15/15 Page 13 of 30 Otterness? interview with Mr. Gibson on October 26, 2014. The report states: Gibson told me during their conversation, Bowser said he got arrested for ?accidentally? shining a laser at a Sheriff?s helicopter which Gibson stated he had given to Bowser. The report does not state that Mr. Bowser told Mr. Gibson he aimed the laser at the helicopter at all, let alone several times, as FBI SA Bach swore in his af?davit and as the government represented in its motions in limine and its trial brief. Rather, the report contains the exculpatory statement that Mr. Bowser told his friend he had acted accidentally. FBI SA Bach was either sloppy on the only critical issue in the case or he committed perjury. Either way,.his twist on the facts prOpelled the government?s case against Mr. Bowser forward. The prosecution never took any steps to correct its presentation of false statements by FBI SA Bach or in its pre-trial ?lings. It was not until one and a halfweeks before trial that the prosecution produced a police report that revealed FBI SA Bach?s af?davit and its own theory of the case to be false. At the hearing on the defense motion to dismiss and for release of grand jury transcripts in light ofthe above, the prosecution simply stated that it did not intend to call FBI SA Bach or Mr. Gibson as witnesses. The government?s theory of proof shifted further once the Court ruled that evidence of Mr. Bowser?s move out of state could not be presented. Mr. Bowser was arrested in September 2014, bailed out of custody, and was never charged in state court. The government did not file the complaint until the end of December 2014. Nevertheless, the government persisted with a theory that Mr. Bowser had and ?absconded? during the intervening months, and that such ?flight? was evidence of consciousness of guilt.2 its theory of the case thus rested on fabricated witness statements and a fabricated argument that Mr. Bowser left California to avoid a federal prosecution that did not exist at the time he left. It was not until one week before trial that its theory and strategy shifted. Even after the Court ruled, the government included witnesses on its witness list whose evidentiary value could only have been related to Mr. Bowser?s move to Arkansas. investigation. In any event, it appears to be a BPD report that memorialich the October 26, 2014 BPD interview with Mr. Gibson in SA Bach?s affidavit and various government ?lings. 2 The government referenced Mr. Bowser?s alleged ?ight as a basis for his pretrial detention. 7 000096 (100 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 100 of 245 Jib-3M OQOOQQUI Case Document 84 Filed 07115115 Page 14 of 30 B. The Government Repeatedly Violated This Court?s Pre?Trial Rulings. The government repeatedly violated this Court?s pre-trial rulings. The defense had to vigilantly police the prosecutor?s questioning and language, causing multiple objections and arguments at sidebar. The purpose of rulings on motions in limine is to obtain rulings in advance oftrial on the admissibility of evidence, so as to avoid having legal arguments in the presence of the jury, wasting the jury?s time, and having the jury judge counsel?s behavior as obstreperous while being kept out of the discussions at sidebar. It became clear that the government was willing to try to slip in language and testimony that this Court had precluded. Then, the government attempted to re-argue each issue at sidebar. The defense was left in the compromising position of appearing argumentative and defensive in front ofthejury. It created a prejudicial atmosphere in the courtroom for Mr. Bowser and it caused defense counsel to be distracted from the actual issues. 1. The Court?s Ruling that Mr. Bowser?s Move to Arkansas Was Irrelevant. As noted above, the Court ciearly ruled at the pretrial hearing that any evidence relating to Mr. Bowser?s move to Arkansas was irrelevant. (See Tn, p. 38.) Nevertheless, when cross-examining Mr. Bowser, the prosecutor asked, ?Did you leave the Sillect property or the Moreland property in October?? (Tn, p. 269.) Following a defense objection, the Court had the following exchange with the prosecutor at sidebar: C: ?Where are you going?? G: ?Just that he left the state and had someone check to see for warrants before he returned.? C: ?What?s the relevance ofit?? G: ?It relates to his knowledge of wrongdoing, consciousness of guilt.? (Tin, p. 269?70.) The Court reminded the prosecutor that the issue had been litigated and ruled upon and sustained the defense objection. Later, after the prosecutor questioned Mr. Bowser about whether he remembered telling the FBI that he had mutilated the laser pointer, the prosecutor tried again: ?You don?t recaii making the statement that you mutilated the laser in Arkansas?? (Tn, p. 283?84.) 000097 (101 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 101 of 245 Case Document 84 Fiied 07/15/15 Page 15 of 30 2. The Court?s Specific Rulings on Dr. McLin?s Proffered Testimony. from its export. deliberate aiming of the cockpit. was ?argument, and the expert may not testiiy to it.? (MEL Tr., p. 39.) The government nevertheless sought to slip this into the record in the form of its questioning: Q: ?In order for a laser beam to illuminate the cockpit of an aircraft, would the laser beam necessarily have to intersect the window of the cockpit?? A: ?Well, to illuminate the cockpit, that implies that it has to intersect the window or an open door.? Q: ?As opposed to a random?? (Tn, p. 2l4.) Then, in its closing argument, the government argued: Dr. McLin, a Senior Research Optometrist for the Air Force Research Laboratory, who has extensive background and training on lasers and the effects of lasers and the way lasers operate, told you that those hits and the evidence and testimony of the two strikes of the helicopter, were direct hits, not consistent with some random movement or movrng of an arm or turning around or ?ickering. McLin testified that the facts are consistent with a deliberate act. it was not an accident.? McLin?s testimony and opinions, opinions that the Court had previously ruled precluded. The defense sought to preclude Dr. McLin altogether. The Court did not make a ruling on that point, but did rule on the defense arguments on the specific items of proffered testimony. The government ignored the rulings in the form ofits questions and elicited precluded responses i. The iaser beam necessarily intersected the window, consistent with The defense motion challenged the first part ofthis item as common sense and one that did not require an expert, let aione an optometrist. The second part, the defense argued, violated FRE 704(b). The Court ruied clearly that the first part was ?legitimate,? and that the second part (TL, p. 316.) in its closing rebuttal argument, the government could not have been clearer: ?Dr. p. 335.) And again: ?The government?s expert has testified this was not an accident.? p. 337.) The government?s argument acted to shape and influence thejury?s understanding of Dr. (Tn, 000098 (102 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 102 of 245 Case Document 84 Filed 07/15/15 Page 16 of 30 1 ii. Whether a person on the ground could see the laser beam illumination. 2 3 The defense objected that this item was irrelevant and that Dr. McLin had no knowiedge 4 of Mr. Bowser?s vision or where he was looking during the incident. The Court ruled that the 5 testimony would be permitted ?as long as it is included that if he were looking. in other words, 6 you can?t testify that clearly Mr. Bowser saw it . . . . So that would have to be if a person were 7 looking from the ground.? Tn, p. 39.) 8 After asking a series of background and quali?cation questions, the government?s first 9 question to Dr. McLin was, ?Do you have an opinion whether the person on the ground who was 10 lasing Air-l would have seen?m.? (Tn, p. 203.) Later the government asked the question 1 1 without the ordered quali?er again: ?Would that expansion be visible to a person on the I2 ground?" (TL, p. 221.) 13 ?Tracking? is consistent with deliberate conduct, not accidental or random acts. i4 15 The Court ruled that this opinion was inadmissible. (See MIL Tr., p. 40.) During Dr. 16 McLin?s direct testimony, the prosecutor gave him the speci?c details of the case?the 17 helicopter?s elevation, speed, and the direction of its movement, and the location of the strikes? }8 and then asked, ?would the second strike have required tracking movement?? p. 2i 7.) 19 After the defense objected, the Court told the prosecutor at sidebar: ?He can de?ne tracking, 20 which he has done. You can ask him a question, such as what?wife person is trying to make a 21 determination of what?whether or not something is being tracked, what factors play into that . . 22 . . You can?t ask was this tracking, or based on this hypothetical, was the person tracking, 23 because that goes to the ultimate issue for the trier of fact, not an expert witness.? (T11, p. 2i 8.) 24 The prosecutor then asked: ?Were there any factors present here that are consistent with 25 tracking?? And Dr. McLin replied, ?well, two hits would be consistent with intentionallym.? 26 (Tn, p. 2l8.) 27 28 10 000099 (103 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 103 of 245 Case Document 84 Filed 07/15/15 Page 17 of 30 iv. Green versus red laser pointers. The defense objected to the proffered testimony on green versus red lasers on the basis that it was irrelevant, confusing, and a waste of time, as no red lasers were in evidence and the strength of the laser used in this case was unknown. The government sought to use the comparison as a means to show mens rea. The Court concluded that the comparison was irrelevant and granted the defense motion. (See MIL T12, p. 46.) Despite the Court?s pro-trial ruling, the government sought to introduce the comparison through the pilot?s direct testimony. (See T12, p. 11 i-lZ.) Then, with Dr. McLin, the government asked: Q: ?Now, is there anything unique about green laser beams and its effect on the vision ofthe pilots and airmen?? A: ?Well, compared to other of lasers, your is most sensitive to green. For the given outputs, same watts of a laser, you will have a brighter effect with the green laser than most other coiors of iaser.? (TL, p. 210.) Upon defense objection, the Court asked at sidebar: C: ?As i recall, the issue was comparing red versus green. So where are we going with this? G: ?We are going to compare with red.? (Tn, p. 2 The prosecution attempted over and over again to present precluded testimony to thejury. It did so in the form of its questions. It failed to properly advise its expert on what testimony was not permitted. it caused defense counsel to have to make repeated objections in front of the jury. It re~argued issues at sidebar. Most importantiy, it allowed the Court and thejury to consider evidence that had been precluded. C. The ProsecutOr Misstated the Evidence During Closing Arguments. The prosecutor?s misconduct continued into closing arguments, where she misstated evidence and improperly suggested that tbejury could discount Mr. Bowser?s defense on the basis of an inappiicable mathematical formula. For instance, the prosecutor told thejury that both Deputy Austin and Deputy Storar testi?ed that Mr. Bowser ?was directly facing the helicopter when the helicopter was struck two times.? (Tn, p. 322.) In fact, neither deputy ll 000100 (104 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 104 of 245 .hwh) OWOOKJCBUI Case Document 84 Filed 07/15/15 Page 18 of 30 was facing?? (TL, p. 129.) Deputy Austin responded, ?Once?during the laser strike or following the laser strike?? p. 129.) Rather than clarify her original question, the second laser strike. (Tn, p. I68.) 319.) testified which direction Mr. Bowser was facing at the time of the laser strikes. During direct examination, the prosecutor asked Deputy Austin, ?[C]ouid you teil which direction the person prosecutor redirected Deputy Austin?s testimony to what he did after he saw the silhouette of the subject in the parking lot. Later during direct examination, the prosecutor tried again to get Deputy Austin to testify regarding what direction the subject was facing at the time of the laser strikes. (T12, p. I31.) Deputy Austin, however, reSponded only that he initially saw only the subject?s silhouette and that he saw the subject walking east after the two laser strikes when he and Deputy Storar used the spotlight to illuminate the subject. (Tn, p. 131.) Likewise, Deputy Storar testi?ed that he did not see the point of origin of the laser until several seconds after the Thus, neither deputy testified that Mr. Bowser was facing the helicopter at the time of the two laser strikes. Nevertheless, the prosecutor skewed the deputies? testimony to support her theory that Mr. Bowser necessarily saw the laser beam hitting the helicopter. She used this misrepresentation of the deputies? testimony to make relevant Dr. McLin?s testimony that a ?person looking at the aircraft on the ground . . . would have seen the aircraft light up.? p. immediately after incorrectly stating that the deputies testified that Mr. Bowser was facing the helicopter at the time of the laser strikes, the prosecutor told thejury that Mr. Bowser was ?holding . . . an object in a steady manner.? p. 322.) No witness, however, testified regarding whether Mr. Bowser was holding the laser in a steady manner. Although Deputy Austin testified that he beiieved Mr. Bowser was holding an object in front of his body, Deputy Austin offered no testimony, and presumably could not have offered any testimony, regarding how steadily Mr. Bowser was holding the object. (T12, p. 131.) indeed, Deputy Austin could not even testify whether Mr. Bowser was holding the object with one hand or two. p. 131.) Nevertheless, the prosecutor took it upon herself to tell thejury that Mr. Bowser was hoiding the laser in a steady manner. This unsupported statement was presumably in response to defense 000101 (105 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 105 of 245 Case Document 84 Filed 07/15/15 Page 19 of 30 counsel?s cross-examination of Dr. McLin, wherein defense counsel asked Dr. McLin, ?Do you 2 know whether [Mr. Bowser] has any condition that would affect his to have a steady 3 hand?? (Tn, p. 220.) Dr. McLin responded, ?i do not.? (T11, p. 220.) 4 One point of contention during the trial was whether the cockpit was illuminated by the 5 second laser strike. Deputy Austin indicated on the FAA Questionnaire that the cockpit was not 6 illuminated but then testified at trial that the second strike did illuminate the cockpit. On cross- examination, Deputy Austin attempted to correct this inconsistency by stating that he answered 3 the FAA Questionnaire with regard to the first strike only. In reSponse to questioning by defense 9 counsel, Deputy Austin stated, ?On the ?rst strike, it was not illuminated. On the second strike, 10 it was.? (Tn, p. 141.) Despite the fact that Deputy Austin clearly testified that the first strike did 1 1 not illuminate the cockpit, the prosecutor suggested to thejury that Mr. Bowser surely would 12 have seen the laser beam strike ?light up? the helicopter on the first strike: would have I3 seen the circling bird. He would have seen it light up. And he would have seen it again on the l4 second strike." (TL, p. 320.) 15 The prosecutor further misrepresented Deputy Austin?s testimony regarding the effect 16 this experience had on his eyes. Despite the fact that any reference to any pain or discomfort 17 was irrelevant and nothing more than an attempt to in?ame thejury, the prosecutor not only 18 chose to do so but also chose to misrepresent to thejury the severity of the discomfort. During 19 her rebuttal closing argument, the prosecutor stated, ?Those strikes were serious enough and 20 direct hits to cause the pilot to feel the effects ofthe laser strikes, to experience flash blindness, 2] {0 have the experience offee/ing like sand was being poured in their [sic] eyes, a gravelly 22 feeiing." (Tit, p. 336.) In fact, Deputy Austin offered no testimony suggesting that his injury 23 was nearly as severe as the prosecutor represented to thejury.3 Rather, Deputy Austin likened 24 the experience to having ?sand or maybe an eyelash? in his eye. (T12, p. 136.) 25 Finally, the prosecutor?s suggestion to thejurors that they needed only to apply a 26 mathematical formula in order to discount Mr. Bowser?s defense was improper and inaccurate. 27 28 3 Deputy Storar testi?ed on direct examination that prior prolonged laser exposures caused a sensation like sand was being poured into his eyes. (See TL, p. 160.) 13 000102 (106 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 106 of 245 UN Case Document 84 Filed 07/15/15 Page 20 of 30 In her closing, the prosecutor stated, ?[T]here is a signi?cant angular difference, if anyone there is a signi?cant angular difference, and that?s what Dr. Mclin testi?ed to. Again, you Bowser?s defense. Dr. Mchin is neither a mathematician nor a physicist. p. 303.) At sidebar, the Court his calculation of the difference in angles, the prosecutor asked no further questions of Dr. McLin. had performed some calculation diSproving Mr. Bowser?s defense was highly prejudicial. mathematical equation. Moreover, she suggested that an admittedly smart individual, Dr. McLin, had already performed that mathematical equation for thejury. remembers high school math and the Pythagorean theorem. You can calculate for yourself the difference between, if he had been looking at that second tower in the distance . . . however do the math . . . (Tn, p. 320-21.) The Pythagorean theorem has nothing to do with measuring angles; it is an equation for solving the length ofthe hypotenuse ofa right triangle. The National Aeronautics and Space Administration de?nes the theorem as: ?For any right triangle, the square of the hypotenuse is equal to the sum of the squares of the other two sides.? (Ex. A.) Yet, the prosecutor represented to the jury that the Pythagorean theorem was somehow relevant, that thejurors should know the Pythagorean theorem from ?high school math,? and that if they applied the Pythagorean theorem to the facts of the case, it would indisputably diSprove Mr. Moreover, the prosecutor suggested to thejurors that they did not even need to do the calculation themselves because Dr. McLin had already done the calculation for them and that his testimony supported the argument that there was a ?significant angular difference.? In fact, Dr. McLin offered no such testimony. During rebuttal, the prosecutor asked Dr. McLin whether he would be able to calculate the angle, which prompted defense counsel to object on the basis that inquired where the government was going with the line of questioning, after which the parties and the Court engaged in a brief discussion regarding whether Dr. McLin could perform the calculation. (TL, 303-05.) After the Court ruled that Dr. McLin could not testify regarding The prosecutor?s suggestion that the Pythagorean theorem applied and that Dr. McLin prosecutor attempted to reduce the question of Mr. Bowser?s guilt or innocence to a simple could The 000103 (107 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 107 of 245 $31-beCase Document 84 Filed 07/15/15 Page 21 01?30 D. Misconduct. alleged misconduct affected thejury?s verdict.? United States v. Nobari, 574 F.3d 1065, (9th Cir. 2009) (quoting United States v. Simtob, 901 F.2d 799, 806 (9th Cir. 1990)). in consider any curative instructions the trial court gave and ?the strength of the case against defendant.? Id; see also Unitedeates v. Kerr, 981 F.2d 1050 (9th Cir. i992) (noting the look at the effect of the individual instances of prosecutorial misconduct, as well as the ofa constitutional vioiation warranting reversal. Nobari, 574 F.3d at 1082 (quoting Perle Runnels, 505 F.3d 922, 927 (9th Cir. 2007)). complaints to the Court, the Court never gave a curative instruction. See United States v. Wentherspoon, 410 F.3d 1 142, 151 (9th Cir. 2005) in the absence of objections prompt corrective action as appropriate.? (quoting Kerr, 981 F.2d at 1054)). Moreover, this case was a close one. Uniike prior cases under 18 U.S.C. 39A in United States v. Rodriguez, F.3d 2015 WL 3875518, at *2 (9th Cir. June 24, 20} 5) least eight laser strikes involving two different heticopters); United States v. Tnnothy Earl 15 Mr. Bowser Was Deprived of a Fair Trial as a Result of the Prosecutor?s misconduct invites reversal if it appears more probable than not that the determining whether a prosecutor?s misconduct influenced the jury?s verdict, the court may "substance of a curative instruction" and the ?closeness of the case? as the two relevant factors in determinin ?whether the 31?osecutor?s misconduct affected the 'ur ?s verdict? . The court must 8 3? cumulative effect of multiple errors, when determining whether the misconduct rises to the level In this case, the prosecutorial misconduct was consistent and pervasive. it began with the tiling ofa criminal complaint that contained false information and continued through discovery and into the trial, where the prosecutor consistently disobeyed the Court?s pretrial rulings and misrepresented evidence and facts to the jury. Despite defense counsei?s frequent objections and defense counsel, a ?trial judge should be alert to deviations from proper argument and take district, there were only two strikes?"one lasting a fraction of a second and the other lasting approximately one to three seconds?and the two strikes were less than five seconds apart. See Wilson, Case No. i:t4-cr-00070-AW1 (ED. Cat. filed Apr. 1, 2014) (two laser strikes lasting 1082 a V. by this (at 000104 (108 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 108 of 245 Case Document 84 Filed 07/15/15 Page 22 of 30 1 eight to ten seconds); United States v. Brett Lee Scott, 1:13-cr-001 (ED. Cal. ?led Mar. 2 4, 2013) (four laser strikes on date of incident, prior laser strikes on different dates from that 3 same location, and the defendant admitted to aiming for the helicopter); United Sta/es v. Je?iey 4 Lee Gentry, Case No. 1:1 l?cr?00094-LJO (E.D. Cal. ?led Feb. i0, 201 1) (four laser strikes 5 iasting one to three seconds each, with the latter two strikes occurring after the helicopter 6 changed course to locate the source of the laser beam); see also United States v. Gardenhire, 784 7 F.3d 1277, 1279 (9th Cir. 2015) (laser incident involving two different aircrafts and the 8 defendant admitted to intentionally trying to hit the aircrafts); United States v. Smith, 756 .3d 9 1070, 1072 (8th Cir. 2014) (laser incident involving two different aircrafts and the defendant 10 admitted to intentionaliy trying to hit one of the aircrafts). 1 Because the prosecutor?s conduct in this case ??affected thejury?s ability to consider the 12 totality of the evidence fairly,? Wear/teaspoon, 410 F.3d at 152 (quoting United States v. Smith, 13 962 F.2d 923, 935 (9th Cir. 1992)), a new trial is warranted. 14 IV. THE COURT SHOULD GRANT A NEW TRIAL BASED ON DISCOVERY AND '5 BRADY VIOLATIONS. 16 At Mr. Bowser?s arraignment on the indictment on March 30, 2015, the COurt ordered the 17 government to produce discovery pursuant to Federal Rule of Criminal Procedure 16 and local 18 rules. On March 31, 2015, the government produced 35 pages of discovery and a recording of 19 Mr. Bowser?s statements to the FBI. In that statement, Mr. Bowser explained that he had struck 20 the helicopter with his laser pointer accidentally. On May I I, Mr. Bowser elected to exercise his 21 right to a speedy trial, and trial was set for June 30. 22 On May 28, the government responded to a defense discovery fetter stating that it had 23 fully compiied with its discovery obligations.4 The letter asserted that the government had 24 ?disclosed to the defendant: any relevant written or recorded statements made by the defendant . 25 . . within the possession, custody or controi of the government, the existence of which is known, 26 or by the exercise of due diligence may become known, to the attorney for the government . . . 27 28 4 The defense ?led a motion for discovery on June 5. The government repeated its assertions in its June 14 response to the defense?s discovery motion. 16 000105 (109 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 109 of 245 4:.wa Case Document 84 Filed 07/15l15 Page 23 of 30 asserted that it had ?provided all federal law enforcement reports in this matter and [had] case that are in the government?s possession or knowledge.? The government repeatedly provide them, and that such materials were equally available to the defense. the defense could have suf?cient time to investigate their backgrounds for impeachment information. for its testifying of?cers. A. Discovery Violations and Brady Non-Compliance. I. The Pilot?s Revelation of His Reporting to the FBI on Direct Examination. (Tn, p. l40.) l-le con?rmed that he made no other report. (Tn, p. 140.) On redirect 17 It also stated that it had ?no other recordings in [its] possession or control.? The government also produced all local law enforcement reports created in connection with the investigation of this asserted that discovery?including reports, recordings, and by the BPD and KCSO were not in its custody and control, that it had no duty to seek such materials out and The government also stated that it had compiled with its obligations under Brady and its progeny. The government asserted that it was not required to disclose exculpatory evidence pre- trial, that it would make required disclosures in a timely fashion, that it was not required to investigate ?tidbits,? and that it was not required to disclose witness names to the defense so that The government?s entire case at trial depended on Dr. McLin?s testimony and employees of the BPD and the KCSO. Nevertheless, the prosecution?s constant refrain was that it had no discovery obligation to produce anything in the possession of BPD, KCSO, or the San Luis ObiSpo County Sheriff?s Office, nor must it conduct a proper review for impeachment material The government position was very clear: it insulated itself from what would it believed would otherwise be its discovery duties under Federal Rule of Criminal Procedure 16 and its duties to seek out and disclose favorable evidence to the defense under Brady and its progeny. The pilot, Deputy Kevin Austin of the KCSO,testif1ed on crossexamination that he completed an FAA Laser Beam Questionnaire within a day or two ofthe laser strike incident. examination, he stated that the purpose of the FAA Questionnaire is to ?givejust the basic 000106 (110 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 110 of 245 Case Document 84 Filed 07/15/15 Page 24 of 30 information to the FAA about when, where, the color of the strike.? p. 147.) He also 2 testi?ed that he had a duty to report lasing incidents to the FBI. (T12, p. 147.) He testi?ed that 3 when he experiences a laser strike, he reports it to the FBI, who then reports it to the FAA. (TL, 4 p. 147-48.) 5 This was the first time the defense heard anything from the government about this duty or 6 any reporting besides the FAA Questionnaire. On re-cross-examination about his duty to report 7 to the FBI, Deputy Austin testified that he made his report via email to Deputy Joshua 8 Nicholson, his ?liaison? to the FBI. He stated that he emailed the FAA Questionnaire to Deputy 9 Nicholson on the same day that he had completed the Questionnaire, and that the email contained 10 other text, but he could not remember exactly what it said. (See Tr, p. 152-54.) 1 I The defense raised the issue at ajury break, claiming the government?s failure to produce I2 the email report was a discovery violation and a violation ofThe Jencks Act, 18 U.S.C. 3500. 13 The government sidestepped: ?it was e-maiis, e-maiis . . . . There was no formal report. It was :4 emails.? (Tn, p. 183.) The next morning, the government provided an email from Deputy Austin 15 to Deputy Nicholson. It was dated October 6, more than three weeks after the incident and after 16 Deputy Austin said that he had made his report to the FBI. It also appeared that the email was 17 not the first communication about the incident between Deputies Austin and Nicholson. 18 2. The Government Untimely Produced to the Defense Three Recordings of 19 Mr. Bowser?s Statements to Law Enforcement in the Weeks Before Trial. 20 The extreme lateness with which the government produced discovery prejudiced Mr. 2] Bowser. Whether calculated or otherwise, the government produced discovery throughout the 22 last week leading to trial. Beginning June I, the government made thirteen additionai 23 disclosures, several in the last week before trial. At the very least, the untimely disciosures were 24 a signi?cant interruption, causing defense counsel to stop preparing for the trial to review and 25 investigate each new production. 26 For instance, on June 3??more than two months after Mr. Bowser?s arraignment on the 27 indictment and the order that discovery be produced, well after a speedy trial was set on May i I, 28 2015, and after the government asserted that it had complied with its discovery obligations?the 18 000107 (1110f324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 111 of 245 Case Document 84 Filed 07/15/15 Page 25 of 30 1 government produced a short recording of statements Mr. Bowser made to the BPD on 2 September 12, 2014, the day of his arrest. 3 On Monday, June 22, 2015, at the motions in limine hearing, the parties and the Court 4 discussed the government?s Saturday, June 20 disclosure that another previousiy undisclosed 5 recorded statement existed, that is, Mr. Bowser?s statement to the arresting San Luis ObiSpo 6 County Sheriff?s Of?ce deputy. The government represented to the Court that the arresting 7 officer was named in the discovery and the defense therefore had equal access to any 8 discoverable evidence he might have generated. The idea that defense counsel has equal access 9 to law enforcement materials is simply false, as this Court recognized during the motions in 10 limine hearing. (MIL Tr., p. 23.) Moreover, the government ?rst revea1ed to the defense the 1 1 arresting officer?s identity Friday, June 19, the day before informing the 12 defense of the video?s existence and the last working day before the hearing. The government :3 ?nally produced to the defense the recording on Wednesday afternoon, June 24. The recording 14 is exculpatory and consistent with the recording of the interrogation of Mr. Bowser. 15 Then, on Thursday afternoon, June 25, the government filed its exhibit iist with a 16 reference to a fourth video of Mr. Bowser while in law enforcement custody. The government 17 provided a copy of the video to the defense late Friday afternoon. There are four files on it, three 18 that do not appear to have audio. The fourth, with audio, is of terrible quality. The defense had 19 no Opportunity to retain a technologist to examine it to determine whether the audio might be 20 enhanced. Counsel?s legal assistant spent the day before trial with transcription headphones, 21 trying to decipher Mr. Bowser?s statements to create a transcript. 22 Each statement that Mr. Bowser made after his arrest on the federal warrant was 23 consistent, and even though his statement to the BPD six months earlier was different, it 24 was meaningfully consistent. 25 It is possible the government chose not to investigate the case before ?ling a complaint, 26 seeking an indictment, seeking Mr. Bowser?s pre-trial detention, producing initial discovery, 27 tiling its motions in iimine, and reSponding to Mr. Bowser?s discovery letter. in any event, the 28 resuit to the defense was unfair delay. Another resnit was that the government?s theory of the 000108 (112 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 112 of 245 Case Document 84 Filed 07/15/15 Page 26 of 30 case shifted dramaticallyjust one week before trial. The government?s statement of its facts and argument in its motions and trial brief materially changed. No longer was the case agent the ease agent. It called neither the original case agent nor Mr. Gibson as a witness. it is also possible that the government did investigate, but was careful not to take any evidence of the investigation into its possession so that it would, under its theory, not have to turn it over to the defense. This possibility is supported by the government?s various assertions: it does not owe the defense a duty to turn over anything not in its possession, custody, or control; (2) it does not have a duty to facilitate a review of the testifying of?cers? personnel files for impeachment material; (3) discovery produced in an untimely fashion, including Mr. Bowser?s recorded statements, was excusable for one reason or another; (4) discovery it provided to the defense beyond the initial discovery is the result of cooperation with the defense?s requests, rather than compliance with discovery obligations or law; and (5) the defense can access the discovery equaiiy, through court orders or subpoenas. Either way, the result is that Mr. Bowser?s due process right to a fair trial was violated. Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. It is equaily clear that a prosecutor cannot evade this duty simply by becoming or remaining ignorant of the fruits of his agents" investigations. United States v. Price, 566 F.3d 900, 903 (9th Cir. 2009). This case could have been prosecuted in state court. instead, the government chose to adopt this case from non?federal iaw enforcement agencies. it worked with those agencies and of?cers to make the decision to bring the prosecution in federal court and it worked with those agencies and officers to prepare for trial. Not one federal employee testified. The government had this very straightforward case since at least October 20] 4. It had access to all law enforcement agencies involved. It provided discovery on March 3 i, 2015, the day after Mr. Bowser?s arraignment. It should have been ready for Mr. Bowser?s invocation of 20 000109 (113 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 113 of 245 ambush)? 17 Case Document 84 Filed 07/15/15 Page 27 of 30 letter?mall before making another discovery disclosure. The Court should not permit the government to infringe upon Mr. Bowser?s due process rights because he exercised his constitutional right to a speedy trial. 3. The Government Must Not Be Permitted to Rely on Its Untenable Position that the Defense Has Equal Access to State and Local Law Enforcement Materials and that the Defense May Obtain a Subpoe Discoverable Materials. October 2014 and provide discovery in a timely manner under the law, the defense should most tangential ways, the defense is out of time to seek subpoenas to try to make sense of government?s case. following records: Booking sheet for Barry Lee Bowser; Any reports, notes, dispatch, radio, or other logs for Dep. Kevin Austin and Dep. Jeremy Storar relating to the lasing incident on September 12, 2014, and their prior mission that night relating to their search 21 speedy trial rights, which occurred on May 11. The docket reveals that the government was able to ?le proposed voir dire, motions in limine, a FRE 609 notice, a trial brief, a motion for an order denying a defense request for personnel record review, an opposition to a defense motion for the same, an Opposition to defense motions in limine, and a response to the defense?s discovery The government?s refrain was that rather than investigate the case it had since at least conduct its own investigation into state law enforcement agencies. The government also asserted that the defense could simply obtain a court order or subpoena to gather the necessary evidence. First, subpoenas duces tecum in criminal cases are not intended to provide a means of discovery. United States v. Nixon, 418 U.S. 683, 693 (1974). Second, such a method of obtaining discovery is wildly inef?cient and a waste of resources. Furthermore, where the government is permitted to release discovery to the defense in the last days before trial, and where the government? witness list includes officers who do not appear in the discovery or appear in the briefest and Not only is the above unworkable and not in accordance with the law, but at least one state agency involved with this case was non?compliant with a subpoena signed by this Court. This Court signed a subpoena addressed to the Custodian of Records for the KCSO for the na for the 000110 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 114 of 245 (114 of 324) Case Document 84 Filed 07/15/15 Page 28 of 30 for an armed man; Any reports, notes diSpatch, radio, or other documentation relating to Dep. Austin?s or Dep. Storar?s reporting of the lasing to any officers or 2 agencies, including superior officers and/or the FAA. 3 The KCSO records were due, in lieu of a personal appearance at trial, on June 24, 2015. The 4 defense received on June 22, 2015, a signed declaration under penalty of perjury from the 5 Dispatch Supervisor stating that the KCSO Communications Section had no reSponsive records. 6 On June 23, the defense received a declaration from a Senior Support Specialist stating that the 7 KCSO Records Section, Crime Reports Unit had nothing responsive and directed the defense to 8 a BPD case number for an incident report.5 The defense received a third declaration from a 9 different Senior Support Specialist for the Records Section with Mr. Bowser?s booking sheet 10 attached. However, in the meantime, in the late afternoon of June 22, the government produced 1 1 to the defense a ?ve?page report, produced by the KCSO, authored by Deputy Storar, titled ?Air 12 Support Unit, Flight Report,? which includes notations relating to the lasing incident and the 13 prior incident with the suspected armed man. This report also reveals that there was a third 14 individual in the helicopterwa fact not previously disclosed to the defense. That third individual ]5 appeared on the government?s witness list, but he did not ultimately testify. '16 Fortunately, the defense was provided access to the flight report. But this access came 17 late?after the motions in limine hearing, one week before trial?and it came from the 18 prosecution. Thus, the government?s oft-repeated suggestion that the defense has equal access to l9 materials in the custody of state and local agencies is simply wrong. Given the above, it is 20 reasonable to assume additional materials, Brady or otherwise, were never revealed to the 2] defense. 22 4. A Proper Review for Impeachment Materials For Testifying Law Enforcement Of?cers Was Not Done. 23 24 The defense requested that the government examine the personnel or related files for all 25 testifying federal, state, and locai government witnesses for evidence of perjorious conduct or 26 other like dishonesty, or any other material relevant to impeachment or exculpatory information. 27 28 5 The case number refers to the BPD case number fer the laser incident. The government produced a seven?page BPD incident report in initial discovery. 22 000111 (115 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 115 Case Document 84 Filed 07/15/15 Page 29 of 30 The government opposed the request and sought an order denying such request. The defer ?led a formal motion on May 28 requesting production ofthe ?les for review; the defense revealed to the defense by the prosecution within the time for initial discovery. The Court responsive. 22, 2015, the government filed its witness list,6 which included names of KCSO and BPD motion and the request for subpoenas. For purposes of discovery, mgovernment agent? includes non~federal personnel whose wo 2007). An individual prosecutor is reSponsible for the duty under Brady to learn of any material ?cannot be evaded by claiming lack of control over the files.? United States v. rulings, violated Mr. Bowser?s right to due process. in which his title and email address were redacted. The defense understood that he was an FBI agent. In its respOnse to the defense?s discovery motion, the prosecution referred to Nicholson as a At the member in its witness list flied June 22. 23 applied for subpoenas for the KCSO and BPD officers whose names and identities had been denied the motion as moot at the motions in limine hearing, after granting the subpoenas for KCSO employees Austin and Storar and BPD employees Celedon and Amos and finding nothing The government then made several more discovery disclosures throughout June. On June employees who had appeared for the first time in discovery just days before the June 22 hearing, or not at all. Therefore, on June 23, the defense renewed its motion for a review of testifying law enforcement witnesses, and applied for additional subpoenas for Deputy Nicholson and the other newly revealed officers on the government?s witness list. The Court denied both the To ensure a fair triai, a criminal defendant is entitled to Brady material contained in a testifying officer?s personnel files. United States v. Hentnorn, 931 F.2d 29, 30 (9th Cir. 199 i contributes to a federal criminai ?case.? United States v. Fort, 472 F.3d 106, 13 (9th Cir. favorable evidence known to others acting on the government?s behalf in the case, including the poiice. Kyles v. Whitley, 514 US. 419, 437 (i 995). An responsibility to disclose Brady Jennings, 920 F.2d 1488, 1490 (9th Cir. I992). The government?s position, and the Court?s f? In discovery, Deputy Nicholson?s name appeared twice, ?rst as an ?Agent? in an FBI-302, and second in an email hearing, the prosecution identi?ed him as the ?co-case agent?; it ?rst identi?ed him as KCSO employee task?force 158 also rk June 14 une 22 000112 (116 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 116 of 245 Case Document 84 Filed 07/15/15 Page 30 of 30 V. CONCLUSION For the foregoing reasons, the Court should grant the Rule 29 motion for ajudgment of acquittal, or in the alternative, a new trial should be granted under Rule 33. Respectfully submitted, DATED: July 15, 2015 HEATHER E. WILLIAMS Federal Defender By: Jane! Bate/nan JAN ET BATEMAN ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. 24 000113 335 32? there's anything else I can provide let me know. Th (117of324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 117 of 245 Esco bar, Karen (USACAE) "om: Kevin Austin .. ant: Thursday, October 09, 2014 6:46 PM To: Josh Nicholson Subject: Re: Fwd: Laser incident questions The laser struck the helicopter twice. The was less than a second followed by the 2nd strike which lasted between two and three seconds. The second strike was held long enough for me to visually spot the exact location of the source and the suspect was standing in an open area whereI could see the silhouette of his person. I immediately executed a ieft, diving turn toward the source to gain airspeed while closing the distance. I also flipped my NVG goggles down which made it easier to keep a visual on the suspect while he was still out in the open area. Once we arrived over the location of the suspect, he was still in an open area. We kept him illuminated with the helicopter's spotlight and observed him until we lost sight of him when he walked under a iarge, metal awning. My TFO, Deputy Jeremy Storar, used binoculars to obtain a good description of him as well. My TFO, Deputy Storar, and I watched him reach under a closed, locked chain-link gate to the driver of the SUV. Deputy Storar observed the suspect and driver at the gate using a pair of binoculars. The driver gave the suspect what appeared to be a bowl with possible food in it. The exchange was made under the gate. I told Deputy Storar to watch closely because I felt the suspect would hand the laser to the drivar of the SUV. The driver left moments later, but we were not certain wether the laser had beenfgiven to the driver. While Deputy Storar was observing with binoculars, I had control of the helicopter's spotiight and used it to keep the driver and suspect illuminated. I know my answers were probably more than you wanted, but I want to make sure there?s no misunderstanding. ank - Josh Nicholson 10/9/2014 3:03 PM Sir, can you piease answer Thanks Sent from my Verizon Wireless 46 LTE DROID Original Message -- Subject: Laserincident questions. ?7 I From: "Bach, ErickT,? Tonosh Nicholson - CC: Josh- The AUSA is asking for a couple more little details regarding the laser strike incident. If deputy pilot Austin could answer them we can go ahead and conduct the search. How many times was the heiicopter struck by the laser. If not a number of times, then what was the estimated duration? Who observed the hand to hand exchange of the laser with the Brown nitial Discovery 26 U.S. v. Barry Lee Bowser, Jr. LJO 000114 (118 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 118 of 245 4. Who observed the person and the clothing? If both the pilot and the tactical flight officer observed this then I will put that in the affidavit. (?Thank you, '7 SA Erick Bach, FBI Sacramento F0 I Bakers?eld RA US. v. Barry Lee Bowser, Jr. Initial Discovery LJO 27 000115 (119 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 119 of 245 Federal Aviation Administration Complete questionnaire and e?mail to: laserreports@faa.gov OR send via fax to FAA Washington Operations Center Complex (WOCC) (202) 267-5289 ATTN: DEN '7 .ONTACT teem-rm 1 .. Name of pilot/crewme'mber reporting E-?mail address and phone number home, call, work) What seat in the cockpit were you occupying at the time of the laser beam exposure? Left f? Right OtheriNot applicable How many crewmembers on the flight had laser light shined directly in their eyes? CJumpseat Flight Engineer mm" 15? None (the laser light beam did not directly enter anyone's eyes) 93;, Two Three f? Four or more Note: if any other are wmember had direct exposure to the laser light in their eyes, each person exposed should complete their own copy of this FAA Laser Beam Exposure Questionnaire I 5 FLIGHT INFORMATION Flight number, caii sign and aircraft registration number (eg.I 3WA572, Southwest, N287WN) I ?Iml?emgouinty Sheriff?s Air?1. NSQTE Aircraft Make and Model Boeing 737. Cessna 172, Airbus A320, BAE Jetstream 32, Dornier 328) Bell oensem . I 7 Category of aircraft Airpiane Rotorcraft Lighter than air f? Other (specify) Type of operation Commercial Aviation (A Medical f" General Aviation Military Law Enforcement News Reporting Other (specify)l 7 Date of laser incident ISeptember 12, 2014 Please enter date of laser incident in Month Day. Year format July 27. 2012). OR mouse click in I the data ?eld to display a drop down arrow to View calendar and make your selection. The calendar selection is optimized for PCs and may not be available on a Mac. Time of laser incident (enter Universal Time Coordinated (UTCiZulu) format rounded to the nearest ?ve minutes) ?ier?: are- 3.1-24.1 A Lia. baitift U.S. Barry Lee Bowser, Jr. 1:1 LJO Initial Discovery 13 000116 (120 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 120 of 245 Time of clay during laser incident [Nighttime on or after midnight local time @ocation of aircraft during Ias?er incident (Fixed Radial Distance (FRD) from navaid or airport. OR add iatllong coordinates) '2 miles south of Meadows Field (KBFL) directly over State Route-99 Estimated geographic location of the laser source the laser source relative to KDFW approach end of runway 35L was approximately 220 degree radial and 2 miles. You can also provide estimated lat/long coordinates) Source located at 3401 Siliect Ave, kad, CA approximately >118 mile away at 9:00 O?clock position to helicopter. Approximate altitude of the aircraft aboVe ground level (AGL) [401 500 Feet AGL Primary direction of flight at the time of the laser incident if? NW NE SW SE None/Hover What phase(s) of flight were you in during the laser incident? (check all that apply) Taxi Takeoff IE Climb to altitude Cruise altitude Descent Final approach [3 Landing [3 Low-altitude (<500 ft. AGL) level flight Hover Other (specify) I err-"act on FLIGHT interference: Did the laser illumination incident interfere with your performance of pilot or crewmember duties during the ?ight? Yes No If you selected "Yes" above. how did the laser illumination interfere with your pilot or crewmember duties? The green laser startled me, caused flash blindness in my left and took my attention away from flying the aircraft. Flight Path: Did the laser illumination canse the pilotlcrew member to change the aircraft ?ight path? No change in flight path Minor or non-adverse change f? Major or adverse change Disruption of Mission: Answer this question ONLY if you were conducting law enforcement, medical or military ?ight operations during the time of the laser illumination incident. Did the laser illumination incident disrupt your mission? Yes f? No if you selected "Yes" above, how did the laser illumination interfere with your mission? ?Thiallaisjerstriige interrupted my response to a man armed with a gun. My attention to ?ying the aircraft was interruptedEire-t"- . 5: '91-?62 vu- U.S. v. Barry Lee Bowser, Jr. Initial Discovery LJO 14 000117 r? (1210f324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 121 of 245 White ?ame Other (specify) Tracking: Did the laser beam appear to deliberately track the aircraft? Yes No Unsurelother (specify) 1 Cockpit illumination: Did the laser beam enter through the and illuminate any part of the cockpit? Yes No Other (specify) I exposure: Did the the laser beam light shine directly into one or both of your eyes? Did not shine directly in my eye(s) Shined a little in my eye(s} Shined in my eye(s) EFFECT ON YOUR Answer questions below ONLY if the laser beam shined a little or in your eye-(s) Did you? experience any adverse VISION from the exposure? (check all that may apply) Did not experience adverse vision effects Glare (could not see past the light while itwas in your eye(s)) 12] Temporary ?ash blindness and/or after images (similarto a camera flash) One or more blind spots (spots in visual ?eld lasting longer than 5-10 minutes) a Blurry vision [3 Signi?cant loss of night vision Other (SPECW) Left felt irritated for a few hours afterward. *Examples of common Vision effects Glare: A temporary disruption in vision caused by the presence 'ofa bright light (such as an oncoming car?s headlights) within an individual's field of vision. Glare lasts only as long as the bright light is actually present within the individuals field of visio n. Flash blindness: A temporary visual interference effect that persists after the source of the illumination has ceased, similar to a bright camera flash. . After image: An image that remains in the visual field after an exposure to a bright light. Blind spot: A temporary or permanent loss of vision of part of the visual field. Unlike an after image, a blind spot does not fader or fades very slowly {taking many minutes, hours or days to fade out). Did you experience any adverse EFFECTS from the exposure? (check all that may apply) Did not experience adverse physical effects Watering eye(s) Eyels) discomfort or pain [3 Headache Feeling of shock Disorientation or dizziness Other (specify) Irritation similar to sand or grit in my left eye. 0 Did you rub your eyels) after the exposure?? - No signi?cant rubbing Rubbed them a little Rubbed them vigorously . -. . .-..- n- .-.. -l . .tg? n. n: Initial Discovery 15 U3. v. Barry Lee Bowser, Jr. LJO 000118 (122 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 122 of 245 EYE EXAMRES Enter the medical facility name: I . What type of doctor did the primary or most comprehensive examination of your eye(s)? Retinal Specialist t? - Ophthalmologist (medical doctor speciaiizing in health) t? Optometrist (tests for visual acuity and diseases; prescribes and ?ts glassesiconiacts) (?Optician (?ts glassesicontacts) Emergency room doctor. nurse or technician Other (specify) [7 Describe the results of the medicai evaluation: LASERINCIDENT Did you report the incident to Air Traf?c Control (3 Did not report to ATC Reported via aircraft radio communication (A Reported via phone call t? Reported via walk-in to FAA ATC facility Other (specify) Did you report the laser incident to an FAA Flight Standards (AFS) ?eld of?ce? SDO, CMO. CHDO) Did not report to AFS Reported vie aircraft radio communication t? Reported via phone cali Reported via walk-in to FAA AFS ?eld of?ce Other (specify) If you reported to an FAA AFS ?eid of?ce, enter the name and of?ce location t, Eeritfr? @ir?sqn 9-: - Fi? A. i: U.S. v. Barry Lee Bowser, Jr. - Initial Discovery 1:1 SCR88 LJO 16 000119 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 123 of 245 Did you have ?an'ytprior. knowledge or trainingon .the hazards'a'nd effects of lasers aimed at a pilottcrewmem'ber? (H None Basic information about the hazards and effects of lasers Detailed, speci?c information such as how to recognize and recover from laser iliuminations Simulator training or simiiar exposure to laser-like illuminations in an aviation training environment f? Other (specify) n.3, The subject pointing the laser was immediately apprehended minutes after the iaser strike. The subject shining the laser was visible with the naked standing in an open area at a closed business. Units from the Bakers?eld Police Dept responded and arrested the subject. Refer to BPD's report 14-200549 for more information. 53:2 it"; ?35 - '01- - message .i ma?saii?fpi stem seas Pym?!? I 1 ear-arrest. or arrest unlikely Maybe. still working the case Yes. arrest was made Arrest status is unknown Other (specify) SUBMIT COMPLETED FAA LASER BEAM EXPOSURE QUESTIONNAIRE Thank you for taking time to compiete this questionnaire. Please "save" the compieted questionnaire and submit to the FAA using one of the two methods described below: Attach the saved PDF to an email and send to: iaserreports@faa.gov 2. Send via fax to FAA Washington Operations Center Compiex (WOCC) - (202) 267-5289 ATTN?Hut-zInitial Discovery 1 7 U.S. v. Barry Lee owser, Jr. LJO (123 of 324) 000120 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 124 U.S. Barry Lee Bmwser,I Jr. LJO Female: Bowser: Celedon: Bowser: Celedon: Bowser: Celedon: Bowser: Celedcn: Bowser: Celedon: Bowser: Celedon: Bowser: Celedon: Bowser: Celedon: Bowser: Celedon: Bowser: Celedon: Bowser: Alright buddy, what?s your name. Barry. It?s Barry. Okay Barry, my name is Of?cer Celedon with the Bakersfield Police Department, okay? What is your name? Of?cer Celedon. Celedon? Badge 1201. I?m just going to read these to you real quick, okay? I?m sure you?ve heard these before. Uh let?s see, ?nd my department?issued card real quick. You don?t know it by heart yet? No I do. It?s just better for court if I read it off the card. You have the right to remain sil\6nt?. Do you understand that? (inaudible) Anything you say may be used against you in a court. Do you understand that? Uh yeah. You have the right for the presence of an attorney before and during any diatom-11g. Do you understand that? Yes. If you can not afford an attorney, one will be appointed to you free of charge before a any questioning if you want. Do you understand that? Yeah. Okay Barry. So do you know why we came out here tonight? Yes. Why did we come out here tonight? Because I was, got a laser pointer working and pointed it at a, a helicopter. You pointed it at the helic0pter. Do you know, do you know which helicopter that was? No I don?t. U.S. v. Bowser, Barry Lee Case Number: 1:15 CR 88 L10 BPD Interview of Bowser, Barry Lee Supplemental Discovery 99 (124 of 324) 000121 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 125 of 245 Celedon: y?A Bowser: Celedon: Bowser: Celedon: Bowser: Ceiedon: Bowser: h?l Celedon: Bowser: Celedon: Bowser: r?nr?n 43-h.) Celedon: Bowser: 0\Ln Celedon: Bowser: x) Celedon: i?lP?I Bowser: MMN tor?CD Celedon: 40 b) Bowser: Celedon: row m4:- Bowser: Celedon: [0 Ch Bowser: \1 Celedon: 00 U.S. Barry Lee Bowser, Jr. LJO You don?t? I-Iuh I just pointed it up. I heard something. I pointed it up in the air and there was a helicopter pretty much. Okay. Okay. So who has the, twhat did you do with the laser pointer? Uh I gave it to my friend. He come brought me dinner. Brought you some dinner. What?s your friend?s name? Uh Todd. That?s all I know. You don?t know his last name or his address or anything like that? No. Do you know his phone number? Uh no. Heck no, don?t remember his phone number now a?daysbring you food? I talked to him earlier in the day. And how did you know he was here? He was hollering at the gate. Hollering at the gate. Okay. And I was in there sleeping. So you don?t know him any other way than just by Todd? In, in passing? Yeah, pretty much. Well, and then he told me, I seen him today at the store. He said he?s making, making enchiladas. He asked me if I?d like some tonight. And I said yeah. But I didn?t realize it?d be this late. Okay. Okay. So you just got this laser pointer working? Yeah. I just put batteries. I found it in the motor home and put batteries in it. Oh really? Just ?gured you?d test it out? Wanted to see how good your aim was? No, not really. I just was pointing to see if it even worked. At the helicopter? I guess. You guess? US. V. Bowser, Barry Lee Case Number: 1:15 CR 88 L10 2 BPD Interview of Bowser. Barry Lee Supplemental Discovery 1 00 (125 of 324) 000122 (126 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 126 of 245 I Bowser: No, yeah. When the helicopter ?ew by I pointed it towards it. I never seen it hit the 2 helicopter. I mean it?s too far away. 3 Celedon: But you pointed it towards the helicopter? 4 Bowser: Yes I guess I did. 5 Celedon: What do you mean you guess? Either you did or you didn?t. 6 Bowser: I did but I never seen it hit the helic0pter. You know I didn?t even know if it was, the 7 battery was going weak. You know, and. . . 8 Celedon: . . . So you didn?t, but you pointed it at the helicopter, you just didn?t know you hit it? 9 Was that it? 10 Bowser: Um, yes I didn?t know if the batteries were even strong enough to hit, actually hit it. 11 Celedont- Oh okay. 12 Bowser: And I wasn?t trying hurt, I didn?t even know if that was a cop helicopter. I wasn?t l3 trying to hurt nobody, you know what I mean? 14 Celedon: Yeah I understand. Uh I?ve never experienced it myself but I guess once that laser 15 hits the cockpit or whatever visual aids that the pilots have, it blinds them. 16 Bowser: Oh. 17 Celedon: So that?s why it?s against the law. Uh there?s, there?s been some, not here locally, but 18 there?s been several crashes um, resulting from laser, laser?point strikes like that. So. 19 Bowser: Why do they even sell them things then I wonder? 20 Celedon: I don?t know. - 21 Bowser: I mean I just found it in the motor home just playing around earlier tonight. And I?m 22 playing around there and (inaudible). DamnBowser, Barry Lee Case Number: 1:15 CR 88 LIO 3 BPD Interview of Bowser. Barry Lee U..S. Barry Lee Bowser, Jr. Supplemental Discovery LJO 101 000123 (127 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 127 of 245 (1h - . Case Document 73 Filed 06/29!15 Page 1 of 7 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. GOVERNMENTS OPPOSITION TO MOTION TO DISMISS Plaintiff, v. DATE: June 30, 2015 TIME: 10:00 am. COURT: Hon. Lawrence J. ONeill BARRY LEE BOWSER, JR, Defendant. The United States of America, by and through its undersigned counsel, hereby opposes Defendant Bowser?s motion to dismiss the indictment due to alleged discovery and Brady violations. 1. DISCOVERY AND BRADY MATERIAL Essentially, the defendant claims that it was unaware that this case was adopted by the FBI after an investigation by local authorities. The reports provided in discovery never represented otherwise. The involvement in this case followed the initial investigation of the laser incident by the Bakers?eld Police Department (BPD) and Kern County Sheriff?s Of?ce (KCSO). The reports of the BPD and KCSO were produced to the defendant on March 3i, 2015, the day after his arraignment.I The information referenced in those reports was available to the defense through the subpoena power of the 1 Speci?cally, the BPD report stated that there was a recording of the defendant?s Mirandized statement, which was summarized in the BPD report. 'Had the defendant speci?cally requested to inspect or copy the recorded statements referenced in the BPD report, it would have been made available to the defense at a time mutually convenient to the parties. GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000124 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 128 of 245 (W Case Document 73 Filed 06/29/15 Page 2 of 7 court. Although the defendant did subpoena records of the Kern County Sheriff?s Of?ce, that subpoena did not require production of any records until June 24. CR. 65. As discussed below, all ofthe KCSO documents requested by the defendant in his subpoena was produced in discovery by the government before June 24. Trial in this matter was set on May 11. Prior to that, it was anticipated that the defendant would plead guilty and was expected to sign a written plea agreement sent to the defense at the defendant?s request after a plea offer was sent. As information became available during trial preparation and at the speci?c request of the defense it was produced regardless of whether the material was properly discoverable and, if discoverable, pursuant to the government?s continuing duty to disclose additional evidence or material. Fed. R. Crim. P. 16 . Speci?cally, the defendant complains about ?thirteen additional disclosures? made by the defendant following the government?s reSponse to the defendant?s discovery letter dated May 27. The additional disclosures are set forth in the below table. Prior to their production, the government did not have ?possession, custody, or control? of any of the below items and therefore was not obligated to produce them. Fed. R. Crim. P. (E). The government produced these items as soon as they were received, notwithstanding the fact that, for the most part, the government was not obligated to produce these items. Many of these disclosures were made pursuant to the defendant?s specific request for additional information from the investigative law enforcement agencies. Bates BPD report oftheft 6/1/15 Stamp Nos. 37?54 55 BPD recorded interview 6/3/15 56-71 BPD diSpatch log and dispatch recording 6/9/ 5 of Channel 1, certi?ed 96% package 72 BPD recorded interview (Bates 55) 6/11/15 enhanced 73?96 California Department of Corrections 6/15/15 documents 2 it should be noted that the government has not obtained any reciprocal discovery from the defense. GOVERNMENTS RESPONSE TO DISCOVERY MOTION (128 of 324) 000125 u(129 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 129 of 245 I. . Case Document 73 Filed 06/29/15 Page 3 of 7 97-124 Transcription of BPD recorded interview 6/ 19/1 5 (Bates 55 and 72), BPD dispatch log and recording of Channel 4, BPD ?ngerprint examination, Additional BPD theft report 125-130 Kern Co SO Mugshot Pro?le; SLO Co SO 6/19/15 incident report 131-135 KCSO Air Support Unit Flight Report 6/22/15 136~l4l Photos of heiiCOpter and maps 6/23/l 5 l4] Enhanced copy of BPD diSpatch (Channel 1) l42?I 79 Prior laser incidents Involving Pilot Austin 6/23/i 5 and TFO Storar 180-220 Suppl. 302?s of Pretrial Interviews of 6/24/15 Witnesses; SLO County SO video 221-225 Venture Co Sup. Ct. Felony Complaint 6/24/15 226-234 Prior Laser Incident Involving Pilot Austin; 6/26/15 KCSO Booking Video Bates 37 to 54 is a report of an unrelated theft. it was produced to the defense out of an abundance of caution, since it contains a statement by the defendant relating to his move from Bakers?eld. The report does not reference the laser incident. The government does not intend to use the defendant?s statement in its case-in-chief. It is therefore not subject to production. Fed. R. Crim. P. i6(a)(I (requiring the production of the defendant?s oral statement if the government intends to use the statement at trial?). Bates 55 is the actual recording of the defendant?s statement that was in the custody and control of the Bakers?eld Police Department until it was speci?cally requested and obtained by the government. It was produced 25 days before trial. The substance of the defendant?s statement, as well as the fact of the actual recording, were, in fact, referenced in the arresting of?cer?s report at Bates 23 that was produced in initial discovery to the defense on March 31, one day after the defendant?s arraignment. On the page numbered Bates 23, the Bakers?eld Police report states, ?For further on mirandized statement refer to my digital recording of our conversation, which I later downloaded into On or about March 31, 2015, the defendant was aware of the existence ofa recording of his Mirandized statement about the laser incident to Bakers?eld Police Of?cer Celedon. The government therefore complied with the requirements of Rule 16, as it disclosed the existence of the recording to the GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000126 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 130 of 245 a r. Case Document 73 Filed 06/29/15 Page 4 of 7 defense in Bates Stamp 23. As early as March, the recording was equally available to the defendant through the subpoena power of the court. As an alternative to dismissal of the indictment, the defense seeks to preclude the government from introducing the recorded statement of the defendant, of which the defense was aware shortly after indictment. However, the statement was not in ?the government?s possession, custody, or control? before it was produced on June 3 -- nearly one month before trial. Fed. R. Crim. P. The government did not have an obligation to produce the recording until it was obtained. United States v. Garro, 763 F.2d 1040, 1048 (9th Cir. 1935) (Rule 16 ?triggers that government?s disclosure obligation only with reSpect to documents within the federal government?s actual possession, custody or control?) . Bates 56 through 71 consists of a dispatch log and recording of the laser incident on Bakers?eld Police Department Channel 1. As with the BPD recording of the defendant?s statement, the dispatch recording was obtained at the request of the defendant on May 27 and was not previously in the government?s possession, custody, or control. It was equally available to the defendant through the subpoena power of the Court. The production of Bates 56 through 71 also contains the California Department of Corrections certi?ed 96% package pertaining to the defendant?s prior convictions that were admissible for impeachment and are not subject to production under Rule l6. Bates 72 is an enhanced recording of the Bakers?eld Police recording (Bates 55) that was referenced in the report produced to the defense on March 31, 2015. Bates 73 through 96 are California Department of Corrections documents that were obtained by the government in reSponse to the defendant?s challenge that his forgery conviction is mandatoriiy I admissible and his identity theft conviction was, in fact, for identity theft. These records were not in the government?s ?possession, custody, or control? before their production and were not subject to production. Fed. R. Crim. P. in addition, they are not intended for production in the government?s case-in-chief but for cross-examination of the defendant and, possibly, rebuttal. Bates 97 through i24 contains a transcription of the Bakers?eld Police recording referenced in the Bakers?eld Police report that was produced in March, 2015. The transcript is in English and is intended to aid thejury, not intended for admission into evidence. This production also contains a RESPONSE TO DISCOVERY MOTION 000 (130 of 324) 127 MN OCOOQCB (131 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 131 of 245 Case Document 73 Filed 06/29/15 Page 5 of 7' dispatch log and recording of the incident on Bakers?eld Police Channel 4 that was obtained at the request of the defendant on May 27 and following the government?s interview of the Kern County deputies and Bakers?eld Police of?cers on June 18, who advised that they switched channels during the laser incident to allow for more radio traf?c on Channel 1. A ?ngerprint examination obtained on June 18 was also produced at this time. The ?ngerprint examination is not intended for production in the government?s case?in-chief but was intended to establish the fact of the defendant?s prior convictions a fact that was previously challenged by the defense but to which the defendant is now stipulating. in I addition, an additional BPD theft report was produced after the government became aware of it during pretrial interviews of witnesses on June 17. This report does not contain any statements of the defendant but does contain statements of potential witnesses who will not testify as government witnesses. Bates [25 through 130 consists of documents obtained from the Kern County Sheriff?s and San Luis ObiSpo County Sheriff?s Office that are not subject to disclosure. Fed. R. Crim. P. (20(2) (?this rule does not authorize the discovery or inSpection of reports?). The Kern County Sheriff?s documents relate to the defendant?s booking and release. The San Luis Obispo County Sheriff?s documents relate to the defendant?s arrest on the outstanding warrant for this case. The description of the arrest is four sentences long. The government obtained these-reports at the May 27 request of the defendant for ?[r]eports . . . of any law enforcement agency,? notwithstanding the fact that the government was not required under Rule 16 to produce them. Bates 13] through 135 consists of internal reports of the Kern County Sheriff?s Office Air Support Unit. The reports document in summary fashion the laser incident that is detailed in the official Bakersfield Police reports of the incident and FAA questionnaire completed by Pilot Austin documenting the laser incident, both of which were produced one day after the defendant?s arraignment. These reports are not subject to disclosure and were not in the government?s ?possession, custody, or control? before their production. The purpose of these reports is to justify Air Support Unit expenses. They are not considered of?cial reports. Bates 136 to l4i consists of photographs ofa helicopter similar in make and model to Air-l the victim aircraft in this case, the defendant?s motor home, and aerial maps of the area.3 These items were 3 The victim aircraft has been disassembled for repairs. GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000128 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 132 of 245 1_ Case Document 73 Filed 06/2915 Page 6 of 7 produced when obtained. In addition, on May 28, the government advised the defendant that it intended to ?introduce photographs, maps or charts at trial" which would ?depict the area of the lasing.? Bates 142 through 179 consists of prior laser incidents (Dooley/Snow, Gentry. Wilson, Scott) prosecuted by the Attorney?s Office involving the airmen in this case. in the govemment?s view, the reports of past incidents do not constitute Brady or Giglio materiai and are not subject to Rule 16 disclosure but were, nonetheiess, produced out of an abundance of caution for use during cross- exarnination by the defense. Bates 180 through 219 consists of supplemental reports generated during the interviews of three witnesses during trial preparation. Supplemental statements of the pilot?s observations were obtained during his interview on June 19. Statements of one of the property owners were also obtained on June 19 and documented. Statements of a third witness, who is not testifying were obtained on June 23 and documented. The Act governs the production of statements by testifying witnesses. The Jencks Act provides for the production of such statements after the testimony of the witness. The government complied with its obligations under the Jencks Act six days in advance of what the Act requires. The government aiso produced the notes of its agents, notwithstanding the fact that the Act and case law does not require the production of the agent?s rough notes when a report has been produced. Bates 220 consists ofa police cam video obtained by the deputy of San Luis Obispo County Sherist Offi ce. The of?cer arrested the defendant pursuant to the outstanding warrant on this case. The deputy was not acting at the direction of the government or its agents when it obtained the video.- The government does not intend to use the item in its case-in?chief at trial. The item was equaliy available to the defendant. Further, the government has no objection to the exclusion of this video which is over one hour and a halflong. Bates 22] to 225 consists of the Ventura County felony complaint charging the defendant with. identity theft, which the government intends to use for impeachment purposes. It was obtained because the defendant chalienged the fact that the defendant was convicted of identity theft, rather than some I other offense enunciated in the statute of conviction. Bates 226 through 234 consists of additional reports of a prior laser incident referenced in the June 23 production. This incident gave rise to the Genny case involving Pilot Austin. Discovery RESPONSE TO DISCOVERY MOTION (132 of 324) 000129 Ch OKCOOQ (133 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 133 of 245 i Case Document 73 Filed 06129115 Page 7 of 7 materials for the Gentry case were archived in San Bruno and were not in the government?s possession, custody or control electronically. The material was produced out of an abundance of caution to allow the defendant the opportunity to question the pilot about his past experience with laser strikes. In addition, the government produced the booking video of the defendant, which the government obtained, even though the video was not requested by the defendant in its subpoena to the Kern County Sheriffs Of?ce. The government also has no objection to the exclusion ofthe booking video. 11. DEFENSE SUBPOENA POWER The defense cites to the above-referenced Air Support Unit Flight Reports of evidence of the defendant?s inability to access materials via the subpoena power of the Court. This material was obtained by the government following questioning of its witnesses, the KCSO airmen, on June 17 and June 19. As explained above, the reports are not considered official reports and therefore are not part of the KCSO records system. The records are prepared to justify the expenses of the Air Support Unit. Nonetheless, when the reports were obtained at the government?s request, they were produced to the defense. The reports are not subject to discovery under Rule 16. Because they contain the name of a potential witness, they were produced pursuant to the government?s obligations under Brady. CONCLUSION Based on the foregoing, it is respectfully requested that the Court deny the defendant?s motion to dismiss the indictment or exclude evidence. BENJAMIN B. WAGNER United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States I Attorney Dated: June 29, 2015 KAREN A. ESCOBAR KAREN A. ESCOBAR Assistant United States Attorney By: RESPONSE TO DISCOVERY MOTION 000130 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 134 of 245 Case Document 72 Filed 06/29/15 Page 1 of 8 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #1 16342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, CA 93721-2226 Telephone: (559) 487?5561 Fax: (559) 487-5950 Attorneys for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. LJO-SKO - Plaintiff, NOTICE OF MOTION AND RENEWED MOTION TO DISMISS vs. MEMORANDUM OF POINTS AND AUTHORITIES AND EXHIBITS. BARRY LEE BOWSER, JR, Trial: June 30, 2015m8r30 am. Defendant. Judge: Hon. Lawrence J. O?Neill BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN A. ESCOBAR ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR PLAINTIFF: TO: PLEASE TAKE NOTICE that on June 30, 2015, at 8:30 am, or as soon a time as the matter can be heard in the Courtroom of the Honorable Lawrence J. O?Neill, United States DistrictICourt Judge for the Eastern District of California, defendant, Barry Lee Bowser, through undersigned counsel, will bring on for hearing the following motion. MOTION Defendant, Barry Lee Bowser, Jr., by and through counsel, Assistant Federal Defenders Janet Bateman and Erin Snider, moves this Court for an order dismissing the single-count indictment charging him with a violation of 18 U.S.C. 39A. This motion is made pursuant to the Due Process Clause of the Fifth Amendment and is based upon the instant Motion and Notice of Motion, the accompanying memorandum of points (134 of 324) 000131 assumedCase: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 135 of 245 Case Document 72 Filed 06/29/15 Page 2 of 8 and authorities, all ?les and records in this case, and such evidence and argument that may be presented at the hearing on this motion. DATED: June 29, 2015 HEATHER E. WILLIAMS Federal Defender fS/ Janet Baremai'z JANET BATEMAN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. By: MEMORANDUM OF POINTS AND AUTHORITIES It now seems that the entire prosecution is dependent on employees of the Bakersfield Police Department and the Kern County Sheriff?s Office Nevertheless, the - prosecution?s constant refrain has been that it has no discovery obligation to produce anything in the possession of BPD, KCSO, or the San Luis Obispo County Sheriff?s Office, nor must it conduct a proper review for Gig/i0 material for its testifying of?cers. In light of ongoing discovery and Brady failures, the Court should not permit the government to proceed to try Mr. Bowser, for an offense with a possible punishment of five years imprisonment, and to present to thejury a distorted picture of the evidence. The government has been very clear that it has insulated itself from what would otherwise be its discovery duties under Federal Rule of Criminal Procedure 16 and its duties to seek out and disclose favorable evidence to the defense under Brady and its progeny. I. Untimely Discovery and Brady Non-?Compliance The extreme lateness with which the government has been producing discovery has prejudiced Mr. Bowser. - Whether calculated or otherwise, the government produced discovery throughout this last week leading to trial. Immediateiy after his arraignment on the indictment, on March 31, 2015, the government produced 35 pages ofinitial discovery and a recording of Mr. Bowser?s statements to the FBI. On May 1 1, Mr. Bowser elected to exercise his right to a speedy trial, and trial was set for June 30. On May 28, the government responded to a defense -2- Bowser: Renewed Motion to Dismiss (135 of 324) 000132 ?ll-Phat(136 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 136 of 245 Case Document 72 Filed 06/29/15 Page 3 0f 8 discovery letter stating that it had fully complied with its discovery obligations. Since then, the government has made thirteen additional disclosures. At the very least, the untimely disclosures have been a significant interruption, causing defense counsel to stop preparing for the trial to review and investigate each new production. For instance, on June 3, more than two months after Mr. Bowser?s arraignment on the indictment and the order that discovery be produced, well after a speedy trial was set on May I l, 2015, and after the government asserted that it had complied with its discovery obligations, the government produced a short recording of statements Mr. Bowser made to the BPD on September l2, 2014, the day of his arrest. On Monday, June 22, 2015, at the motions in limine hearing, the parties and the Court discussed the government?s Saturday, June 20 disclosure that a third recorded statement existed, that is, Mr. Bowser?s statement to the arresting San Luis Obispo County Sheriff?s Office deputy. The government represented to the Court that the arresting officer was named in the discovery and the defense therefore had equal access to discoverable evidence he might have generated. The idea that defense counsel has equal access to law enforcement materials is simply false. Moreover, the government first revealed to the defense the arresting officer?s identity Friday, June 19, the day before informing the defense of the video?s existence and the last working day before the hearing. The government finally produced to the defense the - recording on Wednesday afternoon, June 24. The recording is exculpatory and consistent with the recording of the Bl?s interrogation of Mr. Bowser. Then, on Thursday afternoon, June 25, the government ?led its exhibit list with a reference to afourth video of Mr. Bowser while in law enforcement custody. The government provided a cepy of the video to the defense late Friday afternoon. There are four files on it, three that do not appear to have audio. The fourth, with audio, is ofterrible quality. The defense has no opportunity to retain a technologist to examine it to determine whether the audio might be enhanced. Counsel?s legal assistant is working with it todayw?the day before trialwwith transcription headphones, trying to decipher Mr. Bowser?s statements and create a transcript, if possible. Bowser: Renewed Motion to Dismiss 000133 (137 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 137 of 245 Case Document 72 Filed 06l29/15 Page 4 of 8 materially changed. No longer is the case agent the case agent. He will not be testifying. enforcement with Mr. Bowser?s statements against interest. (1) it does not owe the defense a duty to turn over anything not in its possession, custody, or control; (2) it does not have a duty to facilitate a review ofthe testifying officers? personnel files for impeachment material; (3) discovery produced in an untimely fashion, including Mr. Bowser?s recorded statements, was excusable for one reason or another; (4) discovery it has provided to the defense beyond the initial discovery is the resuit of COOperation with the defense?s requests, rather than compliance with discovery obligations or law; and (5) that the defense can access the discovery equally, through court orders or subpoenas. violated. Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating of?cers that is helpful to the defendant, including evidence that might tend to impeach a government witness, must be disclosed to the defense prior to trial. it is equally clear that a prosecutor cannot evade this duty simply by becoming or remaining ignorant of the fruits of his agents? investigations. United States v. Price, 566 F.3d 900, 903 (9th Cir. 2009) (emphasis in original). -4- Bowser: Renewed Motion to Dismiss it is possible the government chose not to investigate the case before ?ling a complaint, seeking an indictment, seeking Mr. Bowser?s pre-trial detention, producing initial discovery, tiling its motions in limine, and responding to Mr. Bowser?s discovery letter. In any event, the result to the defense has been unfair delay. Another result has been that the government?s theory of the case has shifted dramatically just one week before trial. The government?s statement of its facts and argument in its motions and trial brief??filed May 26 and 27-?--now appear to have Neither will Dan Gibson, who the government has held out to be a witness who had provided law It is also possible that the government did investigate, but was careful not to take any evidence of the investigation into its possession so that it would, under its theory, not have to turn it over to the defense. This possibility is supported by the government?s various assertions: Either way, the result is that Mr. Bowser?s due process right to a fair trial has been This case could have been prosecuted in state court. Instead, the government chose to adopt this case from non-federal law enforcement agencies. it had to work with those agencies 000134 mitt-ION (138 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 138 of 245 Case Document 72 Filed 06/29/15 Page 5 of 8 and officers to make the decision to bring the prosecution in federal court and it is working with these agencies and of?cers to prepare for trial. Only one person on the government?s seventeen- person witness list is a federai employee. As far as the defense is aware, that agent was only involved in the search of the motorhome, after Mr. Bowser had moved to Arkansas and cleaned his belongings out ofit. With respect to Gig/i0 materiai, the government has refused to facilitate a review of the testifying officers? personnel ?les for impeachment material. The Court denied a subpoena, as well as the defense?s motion for the same. II. Defense Access Via Subpoena The government suggests that rather than investigate the case it has had since at least October 2014 and provide discovery in a timely manner under the iaw, the defense should conduct its own investigation into state iaw enforcement agencies. The government also asserts that the defense may seek a Court order or subpoena to gather the necessary evidence. First, subpoenas duces tecum in criminal cases are not intended to provide a means of discovery. United States v. Nixon, 413 US. 683, 698 (1974). Second, such a method of obtaining discovery is wildly inefficient and a waste of resources. The defense would have to make the requests sufficiently specific, and then, if granted, wait for responsive materials. The defense would then have to review, investigate, and then follow the trail, which would then require additional requests for orders and subpoenas. How much time would that take? How involved would this Court have to become? How quickly would the defense exhaust the Court?s patience? How many actors at state agencies would have to respond? How could the defense be confident that it had used the correct technical and in-house administrative words that would trigger a compliant response? Furthermore, where the government is permitted to release discovery to the defense in last days before triai, and where the government?s witness list includes of?cers who do not appear in the discovery or appear in the briefest and most tangential ways, the defense is simply out of time to seek subpoenas to try to make sense of the government?s case. Not oniy is the above unworkable and not in accordance with the law, but the defense has Bewser: Renewed Motion to Dismiss 000135 (139 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 139 of 245 1 Case Document 72 Filed 06/29/15 Page 6 of 8 proof that at least one state agency involved with this case has been non?compliant with a subpoena signed by this Court. This Court signed a subpoena addressed to the Custodian of Records for the KCSO for records for the: Booking sheet for Barry Lee Bowser; Any reports, notes, dispatch, radio, or other logs for Dep. Kevin Austin and Dep. Jeremy Storar relating to the lasing incident on September 12, 2014, and their prior mission that night relating to their search for an armed man; Any reports, notes dispatch, radio, or other documentation relating to Dep. Austin?s or Dep. Storar?s reporting ofthe lasing to any of?cers or agencies, including superior of?cers and/or the FAA. The KCSO records were due, in lieu of a personal appearance at trial, on June 24, 2015. The defense received on June 22, 20l S, a signed declaration under penalty of perjury from the Dispatch Supervisor stating that the KCSO Communications Section had no responsive records. 011 June 23, the defense received a declaration from a Senior Support Specialist stating that the KCSO Records Section, Crime Reports Unit had nothing responsive and directed the defense to a BPD case number for an incident report.? The defense received a third declaration from a different Senior support Specialist for the Records Section with Mr. Bowser?s booking sheet attached. (See Exh. A, KCSO Declarations in response to subpoena.) However, in the meantime, in the late afternoon of June 22, the government produced to the defense a ?ve-page report, produced by the KCSO, reported by Dep. Storar, titled ?Air Support Unit, Flight Report,? which includes notations relating to the lasing incident and the prior incident with the suspected armed man. (See Exh. B.) This report also reveals that there was a third individual in the helicopter?a fact not previously disclosed to the defense. That third individual is on the government?s witness list. Fortunately, the defense was provided access to the flight report. But this access came late?after the motions in limine hearing, one week before trial?and it came from the prosecution. Thus, the government?s oft-repeated suggestion that the defense has equal access to materials in the custody of state and local agencies is simply wrong. The defense does not have equal access. The KCSO has been non-compliant with a subpoena. The case number refers to the BPD case number for the laser incident. The government produced a seven?page BPD incident report in initial discovery. Bowser: Renewed Motion to Dismiss 000136 (140 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 140 of 245 . Case Document 72 Flied 06/29/15 Page 7 of 8 Remedy Sought The defense does not beiieve it can provide Mr; Bowser with effective assistance of counsel when the majority of the last two weeks has been Spent dealing with grossly untimely discovery, with the government?s shifting theory of the case, and with seeking, serving, and waiting for responses from subpoenas for basic discovery from multiple law enforcement agencies. It is also clear that these law enforcement agencies should not be trusted to comply fully with this Court?s subpoenas. For the purposes of discovery, mgovernment agent? includes non-federal personnel whose work contributes to a criminal I?case.? United States v. Fort, 472 F.3d 1 106, 13 (9th Cir. 2007). Additionally, an individual prosecutor remains responsible for the duty under Brady to learn of any favorable evidence known to others acting on the government?s behalf in the case, including the police. 1132/65 12. Whitley, 514 U.S. 419, 437 (1995). Nevertheless, the government?s asserts that it is not obligated to seek out such materials from state agencies. The defense has no confidence that the KCSO, BPD, and the prosecution have complied with their discovery obligations, and with their obligations under the due process clause and Brady. A reasonable conclusion can be drawn that additional non~disclosed Brady materials exist. ?Criminal discovery is not a game. It is integral to the quest for truth and the fair adjudication of guilt or innocence. Vioiations of discovery rules thus cannot go uncorrected or undeterred without undermining the truthseeking process.? Taylor v. Illinois, 484 U.S. 400, 419 (1988) (Brennan, J. dissenting). The Court should exercise its authority to fashion a remedy in the form of a dismissal. Otherwise, Mr. Bowser is heading into an unfair trial. if the Court denies the requested remedy, the defense requests that as an alternative, the Court preclude the government from using any of Mr. Bowser?s resorded statements provided to the defense after May 23, 2015 against aim.2 2 On May 28, 2015, the government responded to the defense?s discover letter, stating that it had complied fully with its discovery obligations, including the production of defendant?s written or recorded statements and the substance of all relevant oral statements made by the defendant, before or after arrest, to law enforcement. Since that date, the defense has received three additional recordings. Bowsor: Renewed Motion to Dismiss 000137 (1410f324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 141 of 245 (t Case Document ?2 Filed 08/29l15 Page 8 of 8 Respectfully submitted, DATED: June 29, 2015 HEATHER E. WILLIAMS Federal Defender fs/ Janet Batemcm JANET BATEMAN ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. By: Bowser: Renewed Motion to Dismiss 000138 (142 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 142 of 245 Case Document 72-1 Filed 06/29/15 Page 1 of 12 United States v. Barry Lee Bowser, Jr. Subpoena Responses from Kern County Sheriff Exhibit A 000139 (143 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 143 of 245 72-1 Filed iip? is: UNITED STATES DISTRICT COUR forthe 'Tf?rii?. arr-r to :?It or; . Eastern District of California United States of America BARRY LEE aowsaa, JR. Case No: LJO-SKO Defendant SUBPOENA T0 TESTIFY AT A HEARWG 0R TRIAL IN A CRIMINAL CASE To: CUSTODIAN OF RECORDS KERN COUNTY DEPARTMENT 1350 NORRIS ROAD BAKERSFIELD, CA 93308-2231 YOU ARE COMMANDED to appear in the United States district court at the time, date, and place shown below to testify in this criminal case. When you arrive, you must remain at the court until the judge or a court of?cer ailows you to leave. Place of Appearance: UNITED STATES DISTRICT oouar Courtrde No-r 4 2500 TULARE sr.. FRESNO. CA 93721 Date and Time: 0813012015 3:30 am You must also bring with you the following documents, electronically stored information, or objects (bionic ifnoz applicable): OF PERSONAL APPEARANCE, PLEASE PROVIDE COPIES OF THE REQUSTED DOCUMENTS AS FOLLOWS BY JUNE 24. 2015: Booking sheet for Barry Lee Bowser; Any reports, notes. dispatch, radio or other logs for Dep. Kevin Austin and Dep. Jeremy Storar relating to the lasing incident on September 12. 2014. and their prior mission that night rotating to their search for an armed man; Any reports, notes, dispatch, radio. or other documentation relating to the Dep. Austin's or Dep. Storar's reporting of the lasing to any of?cers or agencies. including superior officers andlor the FAA. (SEAL) 1 6 2915 Date: ig'cqotir'ra or Clerk The name, address, e-mail, and telephone number of the attorney representing (name ofparw) BARRY LEE BOWS ER JR. who requests this subpoena, are: JANET BATEMAN, Assistant Fedora! Defender Assistant Federal Defender 2300 Tulare Street, Ste. 330 Fresno, CA 93721 559-487-5561 000140 (144 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 144 of 245 72?1 Filed csrzereenonnegeeser 12 Public Administrator COUNTY OF KERN 1350 Norris Rd Bakers?eld. Calilcmia 93305-2231 DECLARATION Title of Action: United States of America vs. Barry Lee Bowser, Jr. Number oontion: LJO-SKO date of Court-Order: June so, 2015 Name of Party Obtaining Court Order: Janet Bateman, Assistant Federal Defender I, Jennifer B. Mebane . the undersigned, say: i am the duty authorized custodian of the records of the Kern County Sheriff's Office Communications Section and have authority to certify copies of these reports; 2. a. copies transmitted herewith are true and correct copies of ail of the original records as described in the above named Court OrderI insofar as the Kern County Sheriff?s Of?ce Communications Section has such records. b. mThe copies transmitted are true copies of part of the original records described in the subpoena. Portions of the record(s) requested have been withheld because: c. No copies are transmitted herewith as; No affidavit accompanying said Subpoena Duoe Tecum. 2. i The Kern County Sheriff?s Of?ce Communications Section has none of the records as described in the above named subpoena. 3. records requested are protected under statute 4. _Califorinia Code of Civil Procedure section 1985.4 requires consumer notice for records exempt from public disclosure under the Public Records Act and maintained by state or tocai agencies. 5. wThe records requested are not subject to discovery as they concern an on-going, open criminal investigation. (County of Orange v. Superior Court (2000) Cat. 759.) 3- The records referred to above were prepared by the personnet oi the Kern County Sheriff?s Of?ce Communications Section in the ordinary course of business at or near the time of the act, condition. or event. Executed on. June 22. 2015 declare under penalty of perjury that the above is true and corr ct. ?f?i?m Dispatch Supervisor srg?tur'e of Declarant Title or Declarant 000141 (145 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 145 of 245 . . V. Filed 06/29/15 Public Administrator JUN: '3 2015 OLER DIST iC'i cam; '5 BY flatworm 95mm 1350 Morris Rd Bakers?eld. California 93303-2231 DECLARATION Title of Action: United States of America v. Barry Lee Bowser, Jr. Number of Action: Date of Court Order: June 16, 2015 Name of Party Obtaining Court Order: Janet Bateman, Assistant Federal Defender l, AmberHemingway ,the undersigned, say: 1. I am the duly authorized custodian of the records of the Kern County Sheriff?s Of?ce Records Division, Crime Reports Unit and have authority to certify copies of these reports; 2. a. WThe copies transmitted herewith are true and correct copies of all of the original records as described in the'above named Court Order. insofar as the Kern County Sheriff?s Of?ce Records Division, Crime Reports Unit has such records- b. _The copies transmitted are true copies bf part of the original records described in the subpoena. Portions of the record(s) requested have been withheid because: c. A No copies are transmitted herewith as; t. _No af?davit accompanying said Subpoena Duce Tecum. 2. is? The Kern County Sheriff?s Of?ce Records Section, Crime Reports Unit has none of the records as described in the above names subpoena. In regards to the incident report, please refer to Bakers?eld Police Department case Your reouest for Booking and Dispatch records will be responded to separately. 4. _Caiifomia Code of Civil Procedure section 1985.4 requires consumer notice for records exempt from public disclosure under the Public Records Act and maintained by state or locai agencies. 5. ?The records requested are not subject to discovery as they concern an on-going, open criminal investigation. (County of Orange v, Soperior Court (2000) 79 Cal. 759.) 3. The records referred to above were prepared by the personnel of the Kern County Sheriff?s Of?ce Records Section, Crime Reports Unit in the ordinary course of business at or nearthe time of the act, condition, or event. Executed on, June ?19, 2015 I declare under penalty of perjury that the above Sheriff?s Senior Support Specialist Title of Declarant 000142 (146 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 146 of 245 PublicAdmims rator BUNNY I I '3 Telephone (661) 391-7500 Shem? ?Se ?1 Filed 06/29/15 Page 5 0f12 1350 Norris Rd Bakers?eld. California 93308-2231 DECLARATION Title of Action: United States of America v. Barry Lee BoWser, Jr. Number of Action: LJO-SKO Date of Court Order: June '16, 2015 Name of Party Obtaining Court Order:- Janet Bateman, Assistant Federal Defender 1, Natalie the undersigned, say: 1. I am the duly authorized custodian of the records of the Kern County Sheriff?s Of?ce Records Divison and have authority to certify copies of these reports; 2. a. A The copies transmitted herewith are true and correct copies of all of the original records as described in the above named Court Order, insofar as the Kern County Sheriff?s Of?ce Records Division has such records. b. WThe copies transmitted are true copies of part of the original records described in the subpoena. Portions of the record(s) requested have been withheld because: c. copies are transmitted herewith as; 1. affidavit accompanying said Subpoena Duoe Tecum. 2. mThe Kern County Sheriff?s Of?ce Records Divison has none of the records as described in the above named subpoena. 3. records requested are protected under statute 3- The records referred to above were prepared by the personnel of the Kern County Sheriff's Office Records Division in the ordinary course of business at or near the time of the act, condition, or event. Executed on, June 19, 2015 I declare under penalty of perjury that the above is true and correct. 7% (7647/7/ Sheriff's Senior Support Specialist Signature of Declarant Title of Declarant 000143 (147 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 147 of 245 RECORD 06/18/15 0 I 13:59 6 01?12 ADDITIONAL INMBEE INVOLVEMENTS PENDING OUT OF CUSTODY ORG: so BOOK NO: 2086919 0302: 09/12/14 06:16 LAR NO: 0255135 INMATE RAMS: BOWSER, BARRY LEE RACE: SEX: AGE: 51 DOB: 06/26/1963 HT: 510 WT: 200 HR: BLN EYE: BLU ADDRESS: 836 KERN CANYON RD APT 65, BAKERSFIELD, CA 93306 SSH: 554499118 OLN: N9543544 ST: CA EXP: 05/20/00 ROS: LORPOO, CA HOUSING: CLASS CD: GPGP SL: 02 CORR LOC: NEXT HEARING: DNA: SUBMITTED FOR: COURT CASE: ACTUAL-RELEASE BASS: 09/12/14 TIME: 20:43 NUMBER OF URRELEASED BOOKINGS: 0 TOTAL NUMBER OF BOOKINGS: 1 SCHEDULED RELEASE DANE: TOTAL BAIL AMOUNT: RUMBER OF DAIS BOOKING: 802086919 00 ARRESTED: 09/12/2014 00:45 BOOKED: 09/12/2014 06:16 NAME: BOWBER, RABBI LEE LAR NO: 0255135 BOOKING TYPE: OPEN CHARGES CRIME CASE NO: BK14200549 COURT CASE NO: ARRESTED BY: 1201 BP CSLEDON CHARGES Rm BOOKING PC (F) BKRO RELEASED-BAIL: $0.00 BOOKING RELEASE DATE: 09/12/2014 TIME: 12:46 RELEASE TYPE: SURETY BOND SOSTEO BAIL AMOUNT: $10,000.00 POSTED BY ALADDIN BAIL BONDS SEAVIEW INSURANCE End Of Report I HEREBY CERTIFY THAT THIS IS A TRUE COPY OR THE ORIGINAL ON FILE WITH THIS OFFICE 11/ M10. 0/775?/ DATE 0 5 ECORDS AND IDENTIFICATION UNIT, KERN COUNTY SHERIFF ?3 OF ICE BAKERSFIELD, CALIFORNIA $9502 1 OF 31 000144 (148 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 148 of 245 a. Case Document 72-1 Fiied 06/29/15 Page 7 of 12 United States v. Barry Lee Bowser, Jr. 1:15-cr-00088 LJO-SKO Kern County Sheriff Flight Reports Exhibit 000145 (149 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 149 O-SKO Document72?l Filed 06/29/15 Pag??f79?q?e%ort Date: 911112014 flight??92 2945 T'ImeStart 13:50 ?ssignment: Arr-1 mag-:39: 20:53 ASU Flight gAircraft Information Fae: Servings 8 Paint: ID Name: wages FueJType: JetA Austin 200567 En? F80 Name: Large Truck Price/Gal: 81.9 39 .0 2.1 . ID Hobbs 89 8? AImort: Truck Charge Card: 410340 Gallons. 23 Engine: 1919.8 1921.9 2.1 Passengers: Non J-TZOO Source info Activigg Info 5513' st Info 05115: Time: Type A Calls Time Type Direct Assist 5 1.05 rtasiigallons Felony 1 a 1'0 . 5 1'05 Misdemeanor RideAlong:J-1200 5 2'05 Cite Detained .. . . . . .. .. .. 1 . . . units Suggort Info . M9. Investiga?gn Info Assists Time Assists Time Agency: Calls: Time: rype; c3115,- Time; Patrof 3 0.43 SWAT 933$?? 1 52 Fezony 4 0.90 Misdemeanor 1 0.15 MVU GSU I - HIDTA Detect. BPD 1 0.10 Vice 2 0.62 RCTF OHV SAR Action Taken Info nil?ism Action: Cans: Action:- Calls: Finds: Property Recovered: First On Scene 5 Photo Perimeter Survenlanca Safety 5 Transport _1 Pursuit Off site Landing Area: Calls: Time Patrol Check ASU Handled Metro 5 2'05 Search 5 I 5 2.95 Eguigment Info Abonf Info Card's ?i?e Cain's ?me FLIR 4 2.05 External Hook Nightsun 4 1.38 Fujinons Gyro Cam VCR N.V.G.'s 4 0.93 Camera Downlink Reported Printed: . .- 1- U.S. v. Barry Lee Boy-user, Jr. Supplemental Discovery LJO 1 131 000146 (150 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 150 of 245 (k - ?15: Case Document 72-1 Filed 06/29/15 Date: 911132014 E?ig?t?z 2945 15:50 Alf-1 Um End 20:53 ID Start End Toto! Location Carl Type Narrative - 22100 18:50 19:15 0.42 4~Zone, 3-Zone, 2- Patrol Patrol Zone 22101 19:15 19:22 0.12 2132 111135 Street 460Audfble 22102 19:22 19:40 0.30 2-2008. 13-2008. 4- Patrol Zone 22103 19:40 20:11 0.52 728 Undenvood Court 3056 PO 22104 20:11 20:20 0.15 320 Water Street 927 22105 20:20 20:27 0.12 2-Zone F'airo.I 22105 20:27 20:37 0.17 Rosewood Drive and 273.5 PC Graenwaod Street 2210'! 20:37 20:43 0.10 10400 Mersham 9.27 Drive 22108 20:43 20:53 0.1? 4?Zonelothe Patrol Sheriff's Ramp Printed: Repoded by: - U.S. v. Barry Lee Bowse, Jr. 1:150888 LJO 132 000147 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 151 of 245 . ??g-gag- up.) Date; 91102014 (M - AIR Case Document 72-1 Fiied 06/29/15 Flight ID: 2946 . 23:12 Assagnmenf; Air-?1 ?meEn 119 ASU ?ight Crew ?Aircrafz? information Fuel Serviges Pifot: New" ?3975 Name: wassa Fuel'f'ype: Jet A Austin 20056? F80 Name: Large Fuel Truck Price/Gal: T.F.O..- ID - Hobbs: 3934.0 3936.1 2.1 Airport: Truck Charge Card: Storar 410340 .. I 67 0 Engine: 1921.9 1924.2 2.3 a Non Name: Source info .49;in Info Arrest We Perez. Izam KCSD Source: Cans: Time: Type Saris Time Type Direct Assist Observed 2 0-43 Investigations 9 1.37 Fe! my 1 iRadIo 7 0.93 Patrof 0 0,75 1 . Misdemeanor Ride Atong:J?1zoo 9 1-37 9 ?2 Cite Detained . Q. ?01-'0'inft; I Investigation [nfg '1 Assisis Time Assism Time Agency: Calls: Time: 13:99,- Caus; Time; Patrol 3 0.45} SWAT Felony a mu MVU Gs? BPD 5 0'62 Misdemeanor 3 0.37 5 0.62 HIDTA Detect. I Vice RCTF OHV SAR Action Taken lnig Mtg-"mfg Action: Calls: Action: Carl's: Finds: Property Recovered: First On Scene 6 Photo 1 $10,000.00 Perimeter Surveillance Safety 6 Transport AM Pursuit on Site Landing Am: Cam: Time Patrol Check ASU Handseu -1 0'05 Metro 9 2.0? Search 3 a 2.12 Egaigmen: info abort Info 7 Cafls ??me Calls Time FLIR 5 2.12 External Hook Nightsun 5 2.12 Fujinons 5 1.00 Gyro Cam VCR N.V.G.'s 5 1,00 Still Camera Downfan PA Printed: v. Barry Lee Bowser, Jr. I 1 :1 5131288 LJO Raported by: . pier: al (151 of 324) 000148 (152 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 152 Case Document 72?1 Filed 06/29/15 Pagalgmfo?idmart Date: 9/11/2014 2948 I TimeStag 23:12 to Start End Total Location Call Typo Narrative 22109 23:12 23:15 cos Patrol Patrol 22111 23:15 23:23 9.13 \Nijson Road and LoJacjf Air-1 observed a LoJacI-t hit while ?ying over the Olldaie area. The signal South Real Road directed us to the south, where we eventually located the K080 stolen vehicle In the parking lot of the Kmart. Air-t directed BPD officers to the vehicles locationI but they found it was cold and unoccupied. Air-1 cleared once of?cers were cod out and advised KCSO deputies who were also looking for the vehicle that it had been located. 22112 23:23 23:20 0.10 3-Zonetothe 2?che Parrdi Paerl 22113 23:29 23:40 0.13 9741 Ramos Avenue 927 Air-?t arrived FOS to an unknown situation. possible domestic dispute Air?1 completed a search for the 'male half. but he was GOA prior to our arrival. Deputies arrived and determined the was a family disturbance only. All units cleared. 22114 23:40 23:41 0.02 3-che Petrol Patrol 22115 23:41 23:55 0.23 El Prado Drive and SUSP Person Air?1 responded to assist BPD officers with a search of two backyards?in South Street the area. icoklng for a who was observed jumping fences when we had flown over during the prior LoJacl-r call. Air-1 and of?cers completed a search of the area and was UTL. The subject was possibly related to a KCSO investiallon of a felony warrant suspect that was nearby. Air-1 cleared once our search had concluded. 22115 23:55 23:59 0.07 Berle Terrace and 245 pc Air?1 responded to assist BPD of?cers with a search fora subject on a South Street that was a suspect to an assault Air-1 provided overhead safety for BPD officers on-scene and cleared once they had advised code?4. AIM and of?cers were UTL on the suspect. . 22117 23:59 0:03 0.07 3-Zone to the 2-che Patrol Patrol ?22110 0:03 0:07 0.07 600 Block of illegal Shooting Air-1 arrived F03 and completed a search of a report of shots ?red In the street area. Air-1 was UTL on any suspicious activity and cleared once our search was complete. - 22119 0:07 0:22 0.25 2-Zone to the 3-201'18 Patrol Patrol 22120 0:22 0:25 0.05 2727 White Lane Susp arm Air-t began to respond to assist BPD of?cers with a naked subject possibly armed with a ?rearm at the Motel 6. Prior to arriving. Air-1 and its pilot was struck by a green laser light. Air-t diverted and otticers eventually advised code-4 at the Motel 6. 22121 0:25 0:43 0.30 3401 Sillect Avenue 247.5 While enroute to our previous call. Air?1 was slruok by a male subject standing in the parking lot of a closed business on Sillect Avenue. Air?1 centinucd to observe the subject. who retreated toward a nearby molorhome parked underneath an awning. The dark colored SUV pulled to the gate of the business and the suspect handed the laser light to the driver. who then fled the area. Air-1 directed BPD of?cers to line suspects location. who eventually admitted to striking Air-1 and its crew with the green laser, as well as giving the laser to the driver of the dark SUV. Air-t cleared once of?cers had arrested the suspect and advised they were code-4. Refer to BPD Report #14?200549. completed by Of?cer Celedon (Badge #1201}. 22122 0:43 0:65 0.20 41011:? to the 1?Zone Patrol Patrol 22123 0:55 1:03 0.13 334 McCord Avenue 415 PC Air-1 arrived F08 to a report of a maieliemaie light in the middle of the street. Air-1 completed asearch. but was UT on any disturbance in the area. Air-1 cleared once deputies arrived and advised they too were UTL on any light or victim. 22124 1:03 1:15 0.20 1007 East Brundage 450 Audible Airv?l arrived FOS to an audible alarm from a closed market. with priors for Lane after hours burglaries. Air-1 completed a search and provided warhead safety for BPD of?cers arriving on~scene. Air-1 and of?cers cleared False Alarm after they advised code-4. Reported by: Printed: stars. -- - 5 '2 .. (LS. v. Barry Lee Bowser, Jr. Supplemental LJO u- 134 000149 (153 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 153 of 245 I Case Document 72-1 Filed 06/29/15 Date: 9111(2014 Elfgh?D; 2945 23:12 TimeEnd 1:19 ?ssiggment: Air-1 221251:15 1:19 0.07 2-Zoneto the Palm} Patrol She?ff's Ramp :3 Reported by: Printed: 0.5. v. Barry Lee Bowser, Jr. lemenfaI Discovery LJO 135 000150 (154 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 154 of 245 Case Document 71 Filed 06/25115 Page 1 of 2 I HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender 2 JANET BATEMAN, CA Bar #241210 ERIN SNIDER, OR Bar #116342 3 Assistant Federal Defenders 2300 Tulare Street, Suite 330 4 Fresno, CA 93721~2226 Telephone: (559) 487-5561 5 Fax: (559) 487?5950 6 Attorneys for Defendant BARRY LEE BOWSER, JR. 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA i 1 UNITED STATES OF AMERICA, Case No. LJO-SKO 12 Plaintiff, AMENDED 13 vs. DEFENDANT BARRY LEE BOWSER, PROPOSED EXHIBIT LIST I4 BARRY LEE BOWSER, JR. Trial: June 30, 2015 1 I 15 Defendant. Time: 8:30 am. Judge: Hon. Lawrence J. O?Neill I7 Defendant, Barry Lee Bowser, .112, hereby designates the following as potential Exhibits 18 for trial in the above-entitled action, reserving the right to add to the list as circumstances dictate. i9 Counsel may introduce, or use at trial, these exhibits during Opening statement, in his case-in? 20 chief, and during closing argument. 21 Description 22 A Relevant portion of recording oer. Bowser?s 3/i7/15 statement to FBI 23 A-i Transcript of A 24 Relevant recording of Mr. Bowser?s statement to SLOCSO G. Roach B?l Transcript of 13 FAA Questionnaire Email from K. Austin to J. Nicholson FBI 302 for Barry Bowser, dated 3/24/15 000151 (155 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 155 of 245 Case Document 71 Filed 06/25/15 Page 2 of 2 I BPD Report by J. Ashby, dated 2 KCSO FIight Report, dated 1/14 3 FBI 302 for Dep. Austin, dated 6/23/15 4 1 FBI 302 follow?up, dated 6/23/15 5 Photograph of Moreland property 6 Photograph of View from Moreland property 7 Photograph of View from Moreiand property 8 Photograph of view from Moreland property 9 Respectfully submitted, 10 DATED: June 25, 2015 I I HEATHER E. WILLIAMS Federal Defender By: Janet Barean I3 JANET BATEMAN ERIN SNIDER 14 'Assistant Federal Defenders Attorneys for Defendant I5 BARRY LEE BOWSER, JR. 000152 000%(156 Of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 156 Of 245 6 Case Document 63 Filed 06/24/15 Page 1 0f 5 BENJAMIN B. WAGNER UnitedeStateS Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497-4000 Facsimile: (559) 4974099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA CASE NO. LJO-SKO UNITED STATES OF AMERICA, Plaintiff, GOVERNMENTS RENEWED OPPOSITION TO MOTION FOR REVIEW v. OF PERSONNEL FILES OF NON-FEDERAL LAW ENFORCEMENT WITNESSES Date: June 30, 2015 - Trial Date Time: 8130 am. Courtroom: Hon. Lawrence J. O?Neill BARRY LEE BOWSER, R., Defendant. The United States, by and through its attorneys, BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, and KAREN A. ESCOBAR, Assistant US. Attorney, hereby responds to Defendant second motion filed June 28 for review Of testifying local law enforcement officers? personnel files in this matter. CR. 62. We have already litigated this issue and the Court has followed the appropriate 1 000153 (157of324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 157 of 245 C. Case Document 63 FiIed 06/24/15 Page 2 of 5 procedure in issuing subpoenas at the defendant?s request for review of the personnel files of non-federal law enforcement officers. The government has no objection to the defendant?s efforts to continue to investigate the state and local law enforcement officers. However, the federal government does not have control over the personnel files of state and local officers. They are not a part of the federal ?executive branch? of government, as the defendant claims. Def. Mot. at 3124. Defendant?s reliance on United States V. Santiago, 46 F.3d 885 (9th Cir. 1995), is misplaced. That case dealt with whether the United States Attorney?s Office had knowledge of and access to the inmate files held by another executive branch agency, the Bureau of Prisons, not a state or local law enforcement agency. The defense insisted on a speedy trial, which is within his rights; however, he now claims prejudice as a result of his failure to conduct an investigation of potential Giglio information equally available to him. As previously noted, CR. 28, 32, the government does not have a duty to obtain the personnel files of state law enforcement officers, since the government does not have possession, control, or knowledge of the contents in the personnel files of the testifying non'federal law enforcement officers.1 FACTUAL BACKGROUND The defendant has requested a speedy trial in this matter and the matter was set for June 80. By means of a letter submission to the United States on May 27, 201.5, the defendant requested a number of items, which were not the subject of any previous filings The government has submitted appropriate Heat/201m requests for the two federal witnesses noted in its witness list. 2 000154 (158 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 158 of 245 C. Case Document 63 Filed 06/24/15 Page 3 of 5 or requests, including ?the personnel or related file for all testifying federal, state, and local government witnesses. On May 28, the government requested an order denying the defendant?s informal request. CR. 28. On May 29, the defendant filed a formal motion requesting review of the personnel files of non-federal law enforcement officers. QB. 29. That day, the government opposed the motion. OR. 32. Thereafter, the Court issued subpoenas for the personnel files for some of the potential non-federal law enforcement witnesses in this case. The Court then reviewed the files and determined that there was no Giglio material contained therein. The defendant has renewed its earlier request now less than one week before trial to compel the government to assist in its efforts to obtain review the personnel files of other non-federal law enforcement witnesses. Again, the government does not have possession, control or knowledge of the personnel files of testifying non-federal law enforcement officers. ARGUMENT The defendant continues to assert that it is the government?s obligation to seek out Brady material, including the personnel files of testifying local law enforcement officers. The defendant?s claim is not supported by applicable authority. See, e. g, United States V. Dominguez-Villa, 954 F.2d 562, 566 (9th Cir. 1992) (finding ?[tlhe prosecution is under no obligationto turn over materials not under its control?); United States V. Erma-Felix, 2013 WL 1694449, at DC. No. 12-CR-340 AWI-BAM (ED. Calif, April 18, 2013).- 000155 (159 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 159 of 245 Case Document 63 Filed 0624/15 Page 4 of?5 Indeed, this Court found in United States V. Perez, 2014 WL 8362240, *3 July 9, 2014), that the government is under no obligation to turn over the personnel files of local law enforcement officers. Further, citing Dommguez- V?la, the Court noted that a district court ?exceedlsl its authority by requiring review of personnel files of state law enforcement witnesses.? Id, citing Dominguezw Villa, 954 F.2d at 565-666. Notwithstanding the foregoing, the government has questioned the state/local witnesses listed in its Witness list about potential Giglio material and found none. In addition, the government does not oppose the defendant?s efforts to independently seek out potential Brady material consistent with the prior precedent of this and other courts of this circuit. The defendant?s efforts to shift the responsibility of ferreting out any Giglio material from the personnel files of its state/local law enforcement officers/witnesses is not justified by the expedited timeline that the defendant created. 000156 (160 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 160 of 245 Case Document 63 Filed 06/24/15 Page 5 of 5 CONCLUSION In light of the foregoing, as well as the government?s previously filing on the issue, the government respectfully requests that the Court deny the defendant?s request that the government examine the personnel or related files for all testifying state and local witnesses. Dated: June 24, 2015 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney Karen Escobar KAREN A. ESCOBAR Assistant United States Attorney 000157 (161 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 161 Case Document 62? Filed 06/23/15 Page 1 of 5 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATEMAN, CA Bar ERIN SNIDER, 0R Bar #116342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, California 93721?2226 Telephone: (559) 487?5561 Counsel for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. LJO-SKO I Plaintiff DEFENDANT MOTION FOR vs. REVIEW OF LAW ENFORCEMENT PERSONNEL RECORDS BARRY LEE BOWSER, JR., - De?andant. Defendant Barry Bowser hereby moves this Court for an order for the production and review for Brady/Gig/io material of the personnel records of Bakersfield Police Department Of?cers ChristOpher Bagby, Jared Ashby, and Shane Shaff; Kern County Sheriff Deputies Joshua Allan Nicholson, Izam Perez, and Lyles (?rst name unknown); and San Luis Obispo County Sheriff Deputy Gregory S. Roach. This motion is made pursuant to Federal Rule of Criminal Procedure I6(a)(l and the Due Process Clause of the Constitution as interpreted in Brady v. Maryland, 373 US. 83 (I 963). This motion is based upon the attached memorandum of points and authorities, all ?les and records in this case, and such evidence and argument as may be presented at the hearing on motion. this 000158 (162 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 162 Case Document 62 Filed 06/23/15 Page 2 of 5 MEMORANDUM OF POINTS AND AUTHORITIES Background Defendant Barry Lee Bowser, Jr. is charged with one count of aiming a laser pointer at an aircraft in violation 01?18 U.S.C. On May 27, 2015, Mr. Bowser delivered his formalized written discovery requests to the government, including a request that the government examine the personnel or related files for all testifying federal, state, and local government witnesses. The defendant requests that these files be reviewed by the government attorney for evidence of perjurious conduct or other like dishonesty, or any other material relevant to impeachment, or any information that is exculpatory, pursuant to its duty under US. v. Hawthorn, 931 F.2d 29 (9th Cir. 1999). (Ex. A, Written Discovery Request, at 4). On May 28, 2015, the government moved for an denying Mr. Bowser?s request for government examination of personnel or related ?les of state and local witnesses. The following day, Mr. Bowser, through counsel, filed a cross?motion, requesting that the Court order the government comply with its duty to disclose exculpatory information under Brady/Gfglio. At the motions in limine hearing on June 22, 2015, the Co ruled the motions were moot.l On June 22, 2015, the government filed its witness list, which included various law- enforcement officers who either are not mentioned in the discovery materials or are mentioned in discovery materials the government produced in an untimely manner. Mr. Bowser now requests an order from this Court granting his request for review of the above-referenced of?cers? personnel ?les for Brady/Gig/io material. This case is set for trial on June 30, 2015. The defense cannot be prepared for trial without crucial Brady/Gig/io material relating to the governmen witnesses. Defense counsel also requested and received a subpoena from this Court for production of the records for the of?cers it believed would testify. After an in earnera review ofthose records, the Court issued Orders ?nding the records did not contain any discoverable documents. Bowser: MOTION FOR REVIEW OF LAW ENFORCEMENT PERSONNEL RECORDS order urt t?s that 000159 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 163 of 245 INCase Document 62 Filed 06/23/15 Page 3 of 5 Argument The Constitution requires a fair trial, and one essential element of fairness is the prosecution?s obligation to turn over exculpatory evidence. United States v. Bag/9y, 473 US. 667, 674-675 (1985); Milka 12. Ryan, 7} i F.3d 998, 1002 (9th Cir. 2013). Due process requires that the prosecution disclose all exculpatory material, ?including evidence that could be used to impeach one of the prosecution?s witnesses or undermine the prosecution?s case.? Milka, 711 F.3d at 1003; see also United States v. Price, 566 F.3d 900, 903 (9th Cir. 2009) (?Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence that might tend to impeach a government witness [must be provided to the To ensure a fair trial, a criminal defendant is entitled to Brady material contained in a testifying officer?s personnel files. United States v. Heat/corn, 931 F.2d 29, 30 (9th Cir. 1991). Under Henrhom, a defendant need not make an initial showing of materiality. Heat/20m, 931 F.2d at 31. Rather, once a defendant makes a request, the government has an obligation to examine the files for any information that may be material to the defendant?s case. Id. Mr. Bowser is requesting that the government produce to the Court the personnel and related ?les of seven state and local law enforcement officers, including the newly identified case agent, for evidence that could be used to impeach the of?cers? testimony. The government will presumably claim that it does not personally possess the requested documents and, thus, does not have a duty to disclose any evidence favorable to the defense that may be contained in such documents. Defense counsel takes the government at its word that it does not personally possess the documents, but the analysis does not end with what an assistant US. attorney has in her files in her office. The government?s discovery obligations annot be evaded by claiming lack of control over the files and procedures?of ot agencies.? United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995). a the prosecution is in a unique position to obtain information known to other agents of the government, it may not be excused from disclosing What it does not know but could have learned.? Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1997). The rationale behind requiring the government to be proactive in requesting Bowser: MOTION FOR REVIEW OF LAW ENFORCEMENT PERSONNEL RECORDS (163 of 324) 000160 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 164 of 245 IsCase Document 62 Filed 06/23/15 Page 4 of 5 exculpatory information from other relevant executive agencies from whom it can solicit information, is not ?to police the good faith of prosecutors, but to ensure the accuracy and fairness of trials by requiring the adversarial testing of all available evidence bearing on guilt or innocence.? Id; see, Santiago, 46 F.3d at 894; United States v. Bryan, 868 F.2d 1032, 1035- 36 (9th Cir. l989); United States v. Sa/yer, 271 F.R.D. E48, l56 (ED. Cal. 2010). The government has adopted a case from non-federal law enforcement agencies. It had to work with?those officers to make the decision to bring the prosecution in federal court and it is working with these agencies and officers to prepare for trial. Of the fourteen law enforcement witnesses on its witness list, only one is a federal employee. As far as the defense is aware, that agent was only involved in the search of the motorhome, after Mr. Bowser had moved to Arkansas and cleaned his belongings out of it. The government has stated flatly that it will not conduct the review. The government did not oppose the defense?s attempts to obtain an in camera review of the records, or other non- speci?ed ?independent? avenues. Moreover, the government did not dispute that the material sought is Brady/Gz'g/io material and it has not represented that it will produce Brady/Gig/io material after its witnesses testify, nor would such a representation be sufficient at this point. In any event, nothing in the Brady line of cases suggests that Brady/Giglz'o material in an investigating officer?s personnel file should be withheld until after the'witness has testified, particularly where the defense has specifically requested such material. Even if the government intends to turn over impeaching material after its witnesses testify, then presumably the government is able to overcome the custody and control issue. Trial begins in this case in one week. To avoid any unnecessary delay at trial, the defense respectfully requests that this Court order the government to produce the requested ?les now. If this Court denies this motion, Mr. Bowser has no recourse and his due process rights will be violated. A denial will encourage prosecutors to consider whether an impeachable officer was part of the initial investigation when deciding whether to bring a prosecution in state or federal court. If impeachment material against state of?cers is available, prosecutors will simply bring the case in federal court where they will argue that that material is not under their control. Bowser: MOTEON FOR OF LAW ENFORCEMENT PERSONNEL RECORDS (164 of 324) 000161 (165 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 165 Case Document 62 Filed 06/23/15 Page 5 of 5 mm For the reasons set forth above, as well as the reasons in the defense?s prior motion for the same type of records (see the defense requests that this Court order the government to examine the personnel and related records of the testifying of?cers for any evidence that could be used to impeach the of?cers? testimony. DATED: June 23, 2015 HEATHER E. WILLIAMS Federal Defender By: Erin Snider ERIN SNIDER ANET BATEMAN Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. Bowser: MOTION FOR REVEEW OF LAW ENFORCEMENT PERSONNEL RECORDS 000162 (166 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 166 of 245 if. Case Document 59 Filed 06522115 Page 1 of 2 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 497-4000 Facsimile: (559) 497?4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT I EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. LIO-SKO Plaintiff, WITNESS LIST v. DATE: June 30, 2015 BARRY LEE BOWSER, JR., TIME: 3:30 am. COURT: Hon. Lawrence J. O'Neill Defendant. The United States, by and through its undersigned counsei, hereby submits the following list of Witness it may call in its case?in?chief: 1. FBI Task Force Of?cer/Kern County Sheriff?s Of?ce Deputy Joshua Allan NicholsonI 2. FBI SA Justin Badger 3. Dr. Leon McLin, Senior Research Optometrist, Air Force Research Laboratmy 4. Pilot/Deputy Kevin Austin, Kern County Sheriff?s Of?ce 5. Tactical Flight Of?cer/Deputy Jeremy Storar, Kern County Sheriffs Of?ce 6. Deputy Izam Perez, Kern County Sheriff?s Of?ce 7. Deputy Lyles, Kern County Sheriff?s Office 8. Danielle Davenport, or Custodian of Records, Kern County Sheriff?s Of?ce 1 TFO Nicholson is also the government?s case agent and will be sitting at the government?s table during trial. WITNESS LIST 000163 U143an (167 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 167 of 245 1 Case Document 59 Filed 06/22/15 Page 2 of 2 9. Of?cer Eric Celedon, Bakers?eld Police Department 10. Of?cer Christopher Bagby, Bakers?eld Police Department 11. Of?cer Jared Ashby, Bakers?eld Police Department 12. Elena Andrade, Bakers?eld Police Department 13. Jeff Cecil, Bakers?eld Police Department Crime Lab Supervisor 14. FBI TFO/Bakers?eld Police Department Of?cer Shane Shaff 15. Deputy Greg Roach, San Luis Obispo County Sheriff 16. Tamara Fleming I 17. Michael Moreland BENJAMIN B. WAGNER United States Attorney Dated: June 22, 2015 KAREN A. ES COBAR KAREN A. ESCOBAR Assistant United States Attorney By: GOVERNMENTS WITNESS LIST 000164 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 168 of 245 Case Document 58 Filed 06/22/15 Page 1 of 2 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATEMAN, CA Bar #241210 ERIN SNIDER, OR Bar #1 16342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, CA 93721-2226 Telephone: (559) 4876561 Fax: (559) 487?5950 Attorneys for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. LJO-SKO Plaintiff, DEFENDANT BARRY LEE BOWSER, IRES LIST OF POTENTIAL vs. WITNESSES BARRY LEE BOWSER, JR., Trial: June 30, 2015 Time: 8:30 am. Defendant. Judge: Hon. Lawrence J. O?Neill Defendant, Barry Lee Bowser, by and through her counsel, Janet Bateman and Erin Snider, Assistant Federal Defenders, hereby designates the following as potential witnesses for the trial in the above-referenced matter, reserving the right to add to the list as circumstances dictate: 1. Daniel Gibson 2. David Mathis 3. George Rubio, Manager of Aladdin Bail Bonds 4. Representative of Legal Department, Aladdin Bail Bonds 5. Lidia Bravo, Assistant Court Supervisor, Superior Court of Kern County 6. Gregory Roach, San Luis ObiSpo County Sheriff?s Deputy 7. Jeremy Storar, Kern County Sheriff?s Deputy 8. Jared Ashby, Bakers?eld Police Department 000165 (168 of 324) (169 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 169 of 245 Case Document 58 Fiied 06/22/15 Page 2 of 2 1 9. Victor Gonzaiez, Investigator with Federai Defender?s Of?ce 2 10. Barry Lee Bowser, Jr. 3 4 Respectfuliy submitted, 5 DATED: june 22, 2015 6 HEATHER E. WILLIAMS Federal Defender 7 By: Erin Snider 3 JANET BATEMAN ERIN SNIDER 9 Assistant Federal Defenders Attorneys for Defendant 10 BARRY LEE BOWSERBowser: List of Potentiai Witnesses 000166 (170 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 170 of 245 Case Document 56 Filed 06/22/15 Page 1 of 8 HEATHER E. WILLIAMS, CA Bar #122664 Federal Defender JANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #1 16342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, CA 93721-2226 Telephone: (559) 487?5561 Fax: (559)487-5950 Attorneys for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. I Plaintiff, NOTICE OF MOTION AND MOTION TO DISMISS INDICTMENT AND FOR RELEASE vs. OF GRAND JURY MEMORANDUM OF POINTS AND BARRY LEE BOWSER, JR, AUTHORITIES AND EXHIBITS Defendant. Trial: June 30, 2015?830 am. Motions Hearing: june 22, 2015w10100 a.rn. Judge: Hon. Lawrence J. O?Neill TO: ESCOBAR ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR PLAINTIFF: PLEASE TAKE NOTICE that on June 22, 2015, at 10:00 am, or as soon thereafter as the matter can be heard in the Courtroom of the Honorable Lawrence J. O'Neill, United States District Court Judge for the Eastern District of California, defendant, Barry Lee Bowser, through undersigned counsel, will bring on for hearing the following motion. MOTION Defendant, by and through counsel, Assistant Federal Defenders Janet Bateman and Erin Snider, moves this Court for an order dismissing the single-count indictment charging him with a violation 01?18 U.S.C. 39A. This motion is made pursuant to the Due Process Clause of the Fifth Amendment and is BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN A. 000167 (171 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 171 of 245 ONDOOHJONUI Case Document 56 Filed 06/22115 Page 2 of 8 based upon the instant Motion and Notice of Motion, the accompanying memorandum of points and authorities, all files and records in this case, and such evidence and argument that may be presented at the hearing on this motion. Mr. Bowser aiso moves for the pretrial disclosure of grand jury transcripts pursuant to Federai Rule of Criminal Procedure DATED: June 22, 2015 HEATHER E. WILLIAMS Federal Defender fs/ Janet Bateman JANET BATEMAN ERIN SNEDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. By: MEMORANDUM OF POINTS AND AUTHORITIES I. FACTS In a criminal indictment ?led March 26, 2015, Mr. Bowser is charged with one count of aiming a laser pointer at an aircraft, in violation of I 8 U.S.C. 39A. According to the discovery, a Kern County Sheriff?s Office helicopter was struck by a laser beam on September 12, 2014. Two KCSO deputies?Kevin Austin and Jeremy Storarw?were in the helicOpter and assisted of?cers on the ground with apprehending Mr. Bowser. The helicopter responded to Mr. Bowser?s location immediately. There were no further laser strikes. The discovery indicates that Mr. Bowser was arrested, interrogated, and booked by Bakersfield Police Department Officers .1. Amos and Eric Celedon. The BPD digitaiiy recorded a statement from Mr. Bowser while he was in custody, as is noted in a BPD report that was produced to the defense on March 31, 2015. The state declined to prosecute and Mr. Bowser?s bond was exonerated on October 14, 2014. (See Exh. A, Email from Lidia Bravo, Assistant Court Supervisor, Kern County.) On December 29, 2014, a criminal complaint was filed in federal court, with an af?davit -2- Bowser: Motion to Dismiss Indictment 000168 (172 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 172 of 245 Case Document 56 Fited 06/22/15 Page 3 of 8 in support written by Special Agent Erick Bach of the FBI. In it, SA Bach wrote that on October 26, 2014, the BPD located the motorhome subject to a search warrant. He wrote that officers spoke with Mr. Bowser?s friend, Danny Gibson, who stated that ?he had a conversation with Bowser about the iaser incident with the helicopter and Bowser admitted to Gibson that he had aimed the laser at the helicopter several times.? (See p. 7, 26.) An indictment was ?ied on March 26, 2015. The Court ordered that discovery be produced pursuant to Federal Rule of Criminai Procedure l6 and local rules on March 30, 2015. On May 11, 2015, Mr. Bowser invoked his right to a Speedy trial; the Court set triai for June 30, 2015. On May 26, 2015, the government ?led motions in Iiininc. In in, the government noted that Mr. Bowser made three statements: (1) to the (2) recorded statements to the and (3) incriminating statements to his friend. The government stated that the statements had been noted in reports, provided in discovery, and were self-inculpatory. (See #24, p. 2, lines 16- 21.) On May 27, 20l 5, the government filed its trial brief. In its description ofthe facts against Mr. Bowser, it relied on statements from ?Danny? Gibson, Mr. Bowser?s friend. Mr. Gibson said, according to the government, that ?Bowser had told him that he had aimed the laser at the helicopter severai times.? (See #26, p. 3, line I 1.) On May 27, 2015, defense counsel submitted to the government a discovery letter formaiizing its requests, including those under Rule 16, Local Rule 440, and Brady v. Manx/and, 373 U.S. 83 (1963), and its progeny. On May 28, 2015, the government responded to the stating that it had complied fully with its discovery obligations, including the production of defendant?s recorded statements. On June I, the defense again asked the government for Mr. Bowser?s recorded statements. On June 4, more than two months after Mr. Bowser?s arraignment on the indictment and the order that discovery be produced, and after the government asserted that it had complied with its discovery obligations, the government produced a three?minute and forty-seven-second recording of Mr. Bowser?s September 12, 2014L statement to the BPD. -3- Bowser: Motion to Dismiss Indictment letter, 000169 (173 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 173 Case Document 56 Filed 06/22/15 Page 4 of 8 On Saturday, June 20, the prosecution informed the defense that itjust inquired ?at [the defense?s] request? with the San Luis Obispo County Sheriff?s Office (which arrested Mr. Bowser on the federal warrant) and learned that there is yet another recording of Mr. Bowser?s arrest during which he made statements relating to the laser incident. A COpy of that recording has not yet been provided to the defense. The day before, in the late afternoon of Friday, June 19, 2015, the government produced to the defense a BPD report authored by Officer Jared Ashby and dated October 28, 2014.1 The report memorializes Officers? Ashby and Otterness interview with Danny Gibson on October 26, 2014. The report states: Gibson told me during their conversation, Bowser said he got arrested for ?accidentally? shining a laser at a Sheriff? 3 helicopter which Gibson stated he had given to Bowser. (See Exh. B, Bates #1 12.) The report does not state that Mr. Bowser told Mr. Gibson he aimed the laser at the helicopter at all, let alone several times, as SA Bach swore in his af?davit and as the government has represented in its motions in limine and its trial brief.2 Rather, the report contains the exculpatory statement that Mr. Bowser told his friend he had acted accidentally. II. ARGUMENT A. The Court Should Dismiss the Indictment Due to Constitutional Error During the Grand Jury Proceedings and Pursuant to Its Supervisory Powers. Courts may dismiss an indictment: (1) when a constitutional error interferes with the grand jury?s independence and the integrity of the grand jury process; and (2) pursuant to a court?s supervisory powers where a defendant has suffered actual prejudice because of misconduct. United States v. Lsgro, 974 F.2d 1091, 1094 (9th Cir. 1992). Dismissal of an Although the report contains the heading ?aircraft incident,? the government has asserted that it was created in relation to a theft investigation. in any event, it appears to be a BPD report that memorializes the October 26, 2014 BPD interview with Gibson referenced in SA Bach?s af?davit and various government ?lings. 2 SA Bach?s report ofthe search ofthe motorhOme on October 26, 2014, also describes statements from Gibson that night. It states: ?Gibson reported the same information as Munoz concerning Bowser?s location. Gibson will provide information about the girlfriend the [sic] Bowser left with to Arkansas. Gibson stated that he owned the motorhonie but had no proofof identi?cation or ownership ofthe vehicle." Bowser: Motion to Dismiss Indictment 000170 (174 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 174 of 245 O?Doo?m Case Document 56 Filed 06722/15 Page 5 of 8 indictment is an appropriate remedy ?to protect the integrity of thejudicial process . . . particuiarly the functions of the grand jury, from unfair or improper prosecutorial misconduct.? United States v. Samango, 607 F.2d 877, 88l (9th Cir. l979) (internal citations and quotations omitted). A court may dismiss an indictment to protect a defendant?s due process rights. United States v. Basurto, 497 F.2d 781, 785 (9th Cir. 1974). Where misconduct has ?significantly infringed upon the grandjury?s ability to exercise its independentjudgment," dismissal is warranted. United States v. De Rosa, 783 F.2d 140i 1405 (9th Cir. l986). The government may not rely on perjured testimony to secure an indictment before the grand jury. Basurto, 497 F.2d at 785-86 (?We hold that the Due Process Clause of the Amendment is violated when a defendant has to stand trial on an indictment which the government knows is based partially on perjured testimony, when the perjured testimony is material, and whenjeopardy has not attached?). ?The relevant inquiry focuses on the impact of the prosecutor?s misconduct on the grandjury?s impartiality, not on the degree of the prosecutor?s culpability." De Rosa, 783 F.2d at 1405. A court may also dismiss an indictment as an exercise of its inherent supervisory power. Somongo, 607 F.2d at 884. ?Although deliberate introduction of perjured testimony is perhaps the most flagrant example of misconduct, other prosecutorial behavior, even if unintentional, can also cause improper in?uence and usurpation ofthe grand jury?s role.? Id. at 882. Courts should dismiss where ??it is established that a violation substantially influenced the grand jury?s decision to indict,? or lfthere is ?grave doubt? that the decision to indict was free from the substantial influence of such violations.? Bank of Nova Scott'a v. United States, 487 US. 250, 256 (1988) (internal citations omitted). To establish a violation of 18 U.S.C. 39A, the government establish that Mr. Bowser knowingly aimed a laser pointer at the KCSO helicopter. It is not enough that it prove Mr. Bowser hit the helicopter with the laser beam, or even that he aimed the laser at the helicopter. To aim, as the government submits in its trial brief, is to point or direct. The statute goes further: the government must show that Mr. Bowser aimed it knowingly, that is, not through accident, -5- Bowser: Motion to Dismiss Indictment 000171 ?n (175 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 175 of 245 Case Document 56 Filed 06/22/15 Page 6 of 8 p?s mistake, or ignorance. The government?s case agent, FBI SA Bach, and the prosecutor have consistently represented to the court that Mr. Bowser made self?incriminating statements to his friend Dan Gibson, who in turn reported those statements to the BPD, as proof that Mr. Bowser knowing/y aimed the iaser pointer. it is now ?naiiy evident to the defense that those statements were not seif?incriminating and were in fact excuipatmy. They are also consistent with Mr. Bowser?s statements to the FBI, wherein he explained how he had hit the helicopter with the light beam accidentally. Given that the government has consistently maintained in its court ?lingsm?both before and after the grand jury returned an indictment?that Gibson reiayed Mr. Bowser?s seif- incriminating statements to the BPD, the oniy reasonable conclusion is that this false evidence was presented to the grand jury. i?i Such grandjury testimony is material, as it represents powerful self-incriminating admissions relating to the mens rear element of the offense charged. It is particuiariy prejudicial DJ under these circumstances. It was purportediy made to a friend (as Opposed to law enforcement), where a person is not immediately aware that his words could result in consequences against his 'J?l own self-interest. Moreover, it represents the only inconsistent statement attributed to Mr. ON Bowser. it aiso contributes to the cumulative effect of the government?s struggle to establish the mans rea element in the face of Mr. Bowser?s repeated protestations that he acted accidentally. 00 The government has argued that Mr. Bowser ?tied? thejurisdiction (insinuating that he \0 was concerned about being prosecuted for the laser incident) and destroyed the laser pointer as evidence of consciousness of guilt. The facts are, however, that no charges were pending against Mr. Bowser when he moved to Arkansas. Mr. Bowser was informed that his bond was MN exonerated and his laser case was dropped in mid~October. He left California on or about October 24, 2014, conscious that no charges were pending. He destroyed the laser while he was in Arkansas, as he told the FBI, because he realized that it had landed him in trouble and that he MN felt he needed to be rid of it. The government?s insistence that he fled is a mischaracterization of the facts and timeline. The only conclusion is that the government represented to the grandjury that he fled?for the reasons the government argues repeatedly in its filings?and that this 00 Bowser: Motion to Dismiss Indictment 000172 (176 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 176 of 245 Loom Case Document 56 Filed 06/22/15 Page 7 0f 8 ??ight? was evidence of Mr. Bowser?s consciousness of guilt. There is insuf?cient evidence remaining?if any?~to establish probable cause that Mr. Bowser committed a violation of 8 U.S.C. 39A. Based on the government?s consistent presentations thus far, it presented to the grand jury fora probable cause finding on the mens rea element of the charged offense: (1) a false representation of Gibson?s statements to the BPD regarding Mr. Bowser?s account of his arrest; (2) a false representation that Mr. Bowser fled California to escape consequences relating to this laser offense; and (3) a conclusion based on falsehoods that the ?ight and the destruction of the laser were evidence of consciousness of guilt. Moreover, because prosecutors do not have a duty to present exculpatory evidence to the grand jury, see United States v. Williams, 504 US. 36, 52 (1992), the defense presumes the grand jury did not hear that Mr. Bowser?s statements to Gibson and the FBI described an accident. 3 Unlike other laser incidents before this Court, the pilots here experienced a relatively limited exposure. They reported a flash followed immediately by a two-second laser illumination. The illumination then stepped and did not recur as the helicopter responded to the source of the light. The defense further presumes the grand jury did not hear that Mr. Bowser wanted to get rid of the laser because he realized it was dangerous and had already caused him troubie. The prosecution now says it has become aware?pursuant to the defense?s request?~that another recording of Mr. Bowser?s statements to law enforcement exists. It is possible these statements, too, are exculpatory, but in any event, they have still not yet been produced. Accordingly, the indictment shouid be dismissed. B. The Court Should Order the Release of Grand Jury Transcripts. The Court should authorize disclosure of the grandjury proceedings given that Mr. Bowser has demonstrated grounds to dismiss the indictment because of a matter that occurred before the grandjury. Fed. R. Crim. P. A particularized need must be demonstrated in order to overcome the presumption of secrecy of grand jury prodeedings. Pittsburgh Plate Glass Co. v. United States, 360 US. 395, 400 (1959)., 3 However, the United States Attorney?s Manual states that when an AUSA ?is personain aware of substantial evidence that directiy negates the guilt of a subject of the investigation, the prosecutOr must present or otherwise disclose such evidence to the grand jury before seeking an indictment against such a person.? U.S.A.M. 1.233. Bowser: Motion to Dismiss Indictment 000173 (177of324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 177 of 245 Case Document 56 Filed 06/22/15 Page 8 of 8 I The particularized need in this case is now obvious. Material facts and arguments in 2 multiple government ?lings are belied by recently produced law enforcement reports and 3 superior court information. Therefore, release of the grand jury transcript is essential to 4 meaningful review of this motion. 5 CONCLUSION 6 For the foregoing reasons, the Court should dismiss the indictment. 7 8 Respectfully submitted, 9 DATED: June 22, 2015 10 HEATHER E. WILLIAMS Federal Defender 1 I By: Janet Bowman [2 JAN ET BATEMAN ERIN 13 Assistant Federal Defenders Attorneys for Defendant i4 BARRY LEE BOWSERBowser: Motion lo Dismiss indictment 000174 (178 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 178 of 245 Case Document 56-1 Filed 06/22/15 Page 1 of 4 United States v. Barry Lee Bowser, Jr. 1: 15-cr?00088 E-Inail from Kern County Superior Court Exhibit A 000175 (179 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 179 of 245 Page I Gas Docment 56?1 Filed 06/22/15 Page 2 of 4 Begin forwarded message: From: "Bravo, Lidia" Date: June 12, 2015 at 10:11:54 AM PDT To: ?'victor Cc: ?Salazar, Ashley? armlkegngountsegi.gov> Subject: FW: Barry Bowser, booking number 2086919 Hello Mr. Gonzalez: I have veri?ed Mr. Barry Lee Bowser was arrested on 09/12/14 booking 2086919," he posted a bond to appear in court on 09/26/ 15. Due to no charges being ?led we requested a one~time 15-day bond extension to 10/14/14. On 10/ 13/ 14 we didn't receive any ?lings for this person so bond was exonerated on 10/14/14 (we prepare our calendars the day prior to court hearings). Our bondsman get contacted via email with this information. You may want to contact Aladdin Bail bond'for email received by the court. Our emails are in house records and they are only kept for about S?months. We cannot con?rm whether this person appeared at the counter or not on the dates of 9/26/not make any notations. At times we do have the defendants appear at the counter even after the bondsman have been notified if an extension was granted or bond exonerated. Please let me know if you need further assistance, Lidia Bravo Assistant Court Supervisor Felony Criminal Division 1-661-868-4834 fax 11dia.bravo@kern.courts.ca.gov 000176 (180 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 180 of 245 Case Document 56?1 Filed 08/22/15 Page 3 of 4 United States v. Barry Lee Bowser, Jr. 1:1 S-cr?00088 BPD Report of Interview with Dan Gibson Exhibit 000177 (181 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 181 of 245 Case Document 56?1 Filed 06/22/15 Page 4 of 4 - . - BAKERSFIELD POLICE DEPARTMENT GENERAL OFFENSE HARDCOPY RELEASED TO BAD GE 2014-2130549 CLOSED 70 011-32 AIRCRAFT INCIDENT Related Text'P'agejs) Document: Supplemental Report . Author: 1034 - ASHBY, - Related date/time: 0ct428-20131 149 . ., .. On Sunday, Octbberxzs, 2014 at?approximately 1703 hours, Officer Otterness #i162 and I (Ashhv'#1034) responded tO'the?residenoe located at 8563 Kern Canyon-Rd~space #65 in an attempt to-locate'BOWSER. Up0n our arrival, we contacted the resident DAN BOWSER bnly used his?address'as a mailing address as he did not reside there. During my.conversation with GIBSON he told me the suspect vehicle which has contacted in on the date of the offense actually belonged to him. GIBSON added he had been friends with BOWSER for ?a long time" and told BOWSER if he could find someone willing to trade a Mercury Cougar for a motor home he would"allow BOWSER to live in it. GIBSON said he was in the process of transferring the vehicle's title into his name at the time of this investigation. GIBSON told.nelBOWSER continued to get "run off? from various locations'where was parking the motor.home, so he obtained permission from his.boss to allow BOWSER tojpark the vehicle at their job site located at 3501 N. Sillect Av. GIBSON stated soon after BOWSER began living on the premise numerous items became stolen from the job said when he confronted BOWSER about the sudden thefts BOWSER told him he was moving to Arkansas with his girlfriend ?Wendy." GIBSON told me during their conversation, BOWSER said he got arrested for ?acbidently? Shining a laser at a Sheriff's helicopter which GIBSON stated he had given to BOWSER. GIBSON said he purchased ?three green lasers off Ebay for eight dollars" and gave one to BOWSER, sold one, and kept one for himself. GIBSON said on Friday, October 24th, 2014 BOWSER returned the motor home to his residence. GIBSON stated because he resided in a trailer park he asked his friend "Eddie" (later identified as EDGAR MUNOZ) if he could park the vehicle at his residence. GIBSON told Officer Otternees and I that MUNOZ resided on Pearl St. and that the vehicle was ?pulltd up into the driveway? but that he could not provide further information. GIBSON told me, ?You are welcome to search if for anything you want." - I contacted Deputy Austin and advised him of the possible vehicle location: Deputy Austin and Deputy MoAdoo later contacted me and advised me they located the suspect vehicle parked in the rear yard of the residence located at 1428 Pearl St. On Sunday, October 26th, 2014 at approximately 1930 hrs, Officer Otterness, Officer Moore #1173, and I responded to the IE18468 Printed On: Jun-174015 (Wed) Pages of 5 U.S. v. Barry Lee Bowser, Jr. Supplemental Discovery LJO 112 000178 (182 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 182 of 245 Case Document 51 Filed 06/17/15 Page 1 of 9 1 HEATHER E. WILLIAMS, Bar #122664 Federal Defender 2 JANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #1 16342 3 Assistant Federal Defenders 2300 Tulare Street, Suite 330 4 Fresno, California 93721-2226 Telephone: (559) 487656! Counsel for Defendant 6 BARRY LEE BOWSER, JR. 3 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, Case No. I 12 Plaintiff OPPOSITION TO UNITED MOTIONS 13 vs. IN LIMINE I4 BARRY LEE BOWSER, JR, Trial: June 30, am. Motions Hearing: June 22, 2015??! 0:00 am. 15 Defendant. Judge: Hon. Lawrence J. O?Neill 16 ?7 Defendant Barry Lee Bowser, In, by and through his counsel of record, Assistant Federal 13 Defenders Janet Bateman and Erin Snider, hereby files his opposition to the United States? ?9 Motions in Limine. 20 I. THE COURT SHOULD DENY THE REQUEST TO PRESENT 21 ESIPY A MISLEADING PORTION OF MR. STATEMENT TO THE 32 Mr. Bowser was interviewed by Federal Bureau of Investigation Special Agents 23 Brick Bach and Joshua Allan Nicholson on March 17, 2015, while being transported from the San 2?4 Luis Obispo County Jaii to the Lerdo Federal MaxMed detention center in Bakersfield, 25 California. The agents began by asking Mr. Bowser to ?recap? the day of the laser incident, after 26 which the following exchange occurred: 27 23 000179 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 183 of 245 23 24 25 26 Mr. Bowser: Officer: Mr. Bowser: Of?cer: Mr. Bowser: Of?cer: Mr. Bowser: Of?cer: Of?cer: Mr. Bowser: Officer: Of?cer: Mr. Bowser: Of?cer: Bowser, Barry: Opposition to Gov?t Motions in Limine Case Document 51 Filed 06/17/15 Page 2 of 9 Airight, yeah, so as I said, I got that from Dan, he bought it online somewhere and I wasjust gonna use it for a little toy, you know, and, uh, think the batteries were dead on it or something, and i, I was going through my junk to sell or something in the trailer there, the mobile home and i found it that day. Put new batteries in it, you know, and playing around with it and, uh, uh, we werejust, me and my dog were bored silly in therejust sittin? doing nothing really and we were playing around with it and, uh, my dog started chasing it, you know, like most dogs do and, and then, like I said, there was a radio tower at the, out of the way, down there, and I was like, ?Ooh, can hit that red light on top of that radio tower,? you know? And this is on the, uh, prOperty where you park your trailer? what was the address there? i don?t know? You don?t know? i don?t know. The road out in front? By the, by (inaudible)? Right, okay. Mr. Bowser: Um, I?m not sure what is the address, where the place is at but? What is the company?s name though? Moreland Incorporation. Moreland Incorporation? Mr. Bowser: Yeah. Uh, but there?s a big radio tower out by, uh, it was, looks like it was about a half mile, mile away, you know? Okay. Great big tall one, you know, it had the red lights on it? And so, I, I was, i was seeing ifl can, I, I was playing with the dog and the dog was sitting there getting a drink of water and I was standing there and I said, wonder ifI can hit that red light on top ofthat tower over there?? And while I was doing that, I, I mentally heard a helicopter in my head, you know? But not really thinking what I was doing with my hand here and, and I turned around, and when I turned 1 lost that red, that blinking tight, I turned and I turned right into that helic0pter, my laser beam did, and I actually seen it hit the helicopter, and i was like, ?Oh, wow,? and I, when I turned as the beam hit the helicopter and then i turned around and shut it off and by then that helicopter come around and he was on me, right on top of me. So how, how long do you think your laser was contacting the helicopter? (183 of 324) 000180 (184 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 184 of 245 Case Document 51 Filed 06/17/15 Page 3 of 9 1 Mr. Bowser: Uh, I don?t believe it was but maybe a second or twom?and i, I didn?t go chasing the heIiCOpter with that laser beam, you know, 2 nothing like that, like I said, I turned into it as he was ?ying by, I turned offthat little red light I was playing with, trying to hit, and I 3 turned into, carelessly turned into the helicopter, but I didn?t, after I realized the beam was hitting it, I stopped right there, I let my ?nger 4 off that beamw 5 Of?cer: So, so the helicopter was in front ofyou, um, in the direction ofthe tower? 6 . . . Mr. Bowser: Um, 1t, when I turned, I kind of turned into the path of the 7 helicopter, you know? 8 Of?cer: But the helicopter was in front of you? Mr. Bowser: Uh, in front of me? Uh, it was above me in front of me, he flew 9 into my frontal vision, you know, he was coming from my side eye, like I said, I heard it, but I didn?t think nothing of it, when I was still 10 playing with that, trying to get the red light, not thinking it was a (inaudible), I didn?t reaily comprehend that was a helicopter until I turned my beam into it, ?til that laser hit it. '2 Of?cer: How long were you, uh, pointing the laser at that tower? 13 Mr. Bowser: Oh, not very long,just a couple of minutes, like I said, my dog got tired of chasing it and was getting a drink of water and while he was 14 doing that ljust was hitting that law?trying to hit that little red light up there and i was just seeing if it had that distance to go that far? I5 Of?cer: Right? 16 . . Mr. Bowser: You know, and, uh, so it wasn?t very long. The whole time I played 17 with him, was probably ?ve minutes, it wasn?t even very long. ,8 Of?cer: So when the helicopter came, uh, you said you just weren?t very conscious ofhearihg the helicopter? 19 Mr. Bowser: Well? 20 Of?cer: You turned and the laser had struck the helicopter pi?or the a} helicopter, so? Mr. Bowser: Yeah, I see it, the green dot hit it, yeah. 22 Of?cer: So, so then what happened? 23 . Mr. Bowser: So then, uh, like i said, the helicopter pilot got right on top of me 24 and, uh, he didn?t take his light off me ?til the poiice showed up. . . . 25 In its motion in Iimine, the government requests that the Court exclude Mr. Bowser?s 26 statements that he ??carelessly? struck the laser beam right into the helicopter,? ?that he did not 27 ?go chasing? the helicopter with the laser beam,? that ?he stopped as soon as he realized he hit the 28 aircraft,? and that ?he did not comprehend that it was a helicopter until the aircraft ?ew into the Bowser, Barry: Opposition to Gov?t Motions in Limine 000181 (185 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 185 of 245 Case Document 51 Fiied 06117715 Page 4 of 9 I beam.? Gov?t Motion in Limine, Docket No. 24, at 3 (emphasis omitted). The government 2 contends that such statements are hearsay when offered by Mr. Bowser and argues that Rule 106 3 ?does not alter this analysis.? Gov?t Motion in Limine, Docket No. 24, at 2. The government, 4 however, indicates its intention to introduce what it perceives to be Mr. Bowser?s inculpatory 5 statements to the FBI. 6 The Court should deny the government?s request to cherry-pick only those portions of Mr. 7 Bowser?s statement that would create a misleading impression that Mr. Bowser confessed to 8 violating 18 U.S.C. 39A. Mr. Bowser?s account ofwhat occurred on September 12, 2014, is 9 one cohesive story and, under Federal Rule of Evidence 106, if the government introduces any 10 part of his statement, his entire statement concerning the events of September l2, 2014, should, in 1 1 fairness, be considered at the same time. Alternatively, if the government introduces any part of 12 Mr. Bowser?s statement, the defense may elicit his other statements to the FBI on cross- 13 examination, as his other statements are nonhearsay when elicited for the purposes of providing 14 context and ensuring that thejury is not left with a misleading impression as to what Mr. Bowser 15 told the shortly after his arrest. 16 A. Mr. Bowser?s Entire Statement Is Admissible Under Rule 106 and General Due Process Principles. 1? 18 Federal Rule of Evidence 106 provides, ?Ifa party introduces all or part ofa writing or 19 recorded statement, an adverse party may require the introduction, at that time, of any other 20 part-wor any other writing or recorded statement?that in fairness ought to be considered at the 21 same time.? Fed. R. Evid. 106. The advisory committee notes explain that Rule 106 was 22 designed to address two concerns: ?The first is the misleading impression created by taking 23 matters out of context. The second is the inadequacy of repair work when delayed to a point later 24 in the trial." Fed. R. Evid. 106 advisory committee?s note. 25 Here, should the government present any portion of Mr. Bowser?s account of what 26 occurred on September 12, 2014, Mr. Bowser?s entire statement is admissible under Rule 106 and 27 general principles of due process. While the government correctly states that, under Ninth Circuit 28 precedent, Rule 106 does not make otherwise inadmissible hearsay admissible, see Gov?t Motion Bowser, Barry: Opposition to Gov?t Motions in Limine 000182 (186 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 186 of 245 Case Document 51 Filed 06ll7115 Page 5 of 9 i in Limine, Docket No. 24, at 2 (citing United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000), 2 and United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996)), this is not permission for the 3 government to introduce a misleading snippet of Mr. Bowser?s statement that leaves the jury with 4 the impression that Mr. Bowser confessed to violating 18 U.S.C. 39A. See United States v. 5 Darrell, 758 F.2d 427, 435 (9th Cir. l985) (noting that the rule of completeness applies ifthe 6 redacted confession ??distorts the meaning of the statement or excludes information substantially 7 exculpatory of the declarant?? or excludes portions of the statement that are ?explanatory of [or] 8 relevant to the admitted passages?? (alteration in original) (citations omitted?; see also Hayes v. 9 Brown, 399 F.3d 972, 983 (9th Cir. 2005) (noting that it violates a defendant?s due process rights to when a prosecutor knowingly allows a witness to create a false impression (citing Alcorta v. ii Texas, 355 U.S. 28 (1957)). 12 For example, in United States v. Castro?Cabrera, 534 F. Supp. 2d 1156 (CD. Cal. 2008), 13 the District Court for the Central District of California addressed this issue in the context of an 14 immigration case. In astral-Cabrera, the defendant made a sworn written statement to 15 immigration of?cials. Id. at 159. in response to the question, ?Ofwhat country are you a 16 citizen?,? the defendant wrote, ?Hopefully United States through my mother.? Id. In response to i? the question, ?What country are you a citizen of now?,? the defendant stated, guess Mexico I8 until my mother files a petition.? Id. The government sought to introduce only the defendant?s 19 response to the second question, not the first. Id. at 159~60. The court noted that if it were to 20 exclude the defendant?s response to the ?rst question ?where he asserts that the United States may 21 be his country of citizenship through his mother,? it would ?distort the context of the latter portion 22 of the statement.? Id. at 160. That is, the defendant?s answer to the second question ?suggests 23 that [the defendant] believes he is currently a Mexican citizen? but his answers together ?are less 24 conclusive? and could ?mean that [the defendant] believes he has dual citizenship.? Id. Thus, the 25 court concluded that the defendant?s two statements were ?inextricably intertwined? and held that 26 Rule 106 warranted admission of both of the defendant?s i?eSponses. Id. 27 In this case, if the government seeks to admit any p01tion of Mr. Bowser?s statement to 28 law enforcement ?recapping? the night of September 12, 2014, the Court must allow in Mr. Bowser, Barry: OppositiOn to Gov't Motions in Liminc 000183 (187of324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 187 of 245 Case Document 51 Filed 06/17115 Page 6 of 9 Bowser?s unedited and complete statement. Mr. Bowser told a cohesive story of the events of 2 that night and permitting the government to seiect only those portions of his statement that 3 support the government?s theory of the case causes the very problem Rule 106 was meant to 4 address?that is, it creates a misleading impression by taking Mr. Bowser?s statements out of 5 context. For instance, if FBI Speciai Agent Bach or Nicholson were to testify that Mr. Bowser 6 admitted to hitting the helicopter with a laser, thejury would be left with the impression that Mr. 7 Bowser admitted to violating 18 U.S.C. 39A and, moreover, would be less inclined to accept 8 Mr. Bowser?s defense that he did not hit the helicopter knowingly, as a reasonable person would 9 have alerted the FBI agents that the laser strike was an accident. Mr. Bowser?s explanation that 10 he was aiming the laser pointer at the radio tower, heard a helicopter, and turned toward the It source of the noise without considering that his laser was still on and directed toward the source 12 of the noise is inextricably intertwined with his admission that he hit the helic0pter with the laser. 13 it is for this reason that this case is distinguishable from Ortega, upon which the 14 government relies in its motion. In Ortega, the defendant made several assertions that were each 15 independent of the other. See Ortega, 203 F.3d at 678~79, 68182. Some of those assertions were 16 inculpatory (?[the defendant] arranged to sell the methamphetamine?) and some were exculpatory 17 (?the firearms . . . belonged to [the defendant?s] cousin?). Id. Because the various statements 18 were independent, excluding the exculpatory statements did not alter the meaning of the 19 statements that confessed guilt. Such is not the case here, where an edited version of Mr. 20 Bowser's statement would significantly change the meaning the statement. 21 Moreover, this case is distinct from Ortega in another way. The defendant in Ortega 22 testi?ed prior to the officer?s testimony, and thus the defendant?s Fifth Amendment right not to 23 testify was not violated by excluding portions of his statement: ?The of?cer?s testimony did not 24 distort the meaning of [the defendant?s] statements because [the defendant] testified to the 25 statements not mentioned by the officer." Id. at 683. Had the defendant not already testi?ed, 26 however, the Ortega court notes that Fifth Amendment concerns would have arisen. Id. Those concerns weigh heaviiy here, as the government presumany seeks to introduce Mr. Bowser?s 28 aitered statements in its case in chief, and therefore before he testifies (if he so chooses). Bowser, Barry: Opposition to Gov?t Motions in Limine 000184 (188 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 188 of 245 Case Document 51 Flied 06/17/15 Page 7 of 9 I Accordingly, shouid the government present any portion of Mr. Bowser?s statement to the 2 FBI concerning the events of September 12, 2014, his entire statement is admissible pursuant to 3 Rule 106 and general principles of due process. 4 B. Alternatively, Mr. Bowser?s Entire Statement Is Admissible As Nonhearsay. 5 Alternatively, this Court should admit Mr. Bowser?s complete statement as nonhearsay, as 6 the complete statement serves the purposes of providing context and correcting the misleading 7 impression of the government?s selective presentation of Mr. Bowser?s interview with the FBI. 8 ederal'Ruie of Evidence 80I(c) de?nes ?hearsay? as a statement that: ?the declarant does not 9 make while testifying at the current trial or hearing?; and (2) ?a party offers in evidence to prove 10 the truth of the matter asserted in the statement.? Fed. R. Evid. 801(c). When an out-of-court statement is not offered to prove the truth of the matter asserted, it is not hearsay. See Anderson 12 v. UnitedSmtes,4l7 l3 For instance, in Beech Aircrq? Corp. v. Rain/3y, 488 US. 153 (1988), the Supreme Court 14 held it permissible under general relevancy principles to admit a plaintiff?s out-of-court statement IS when the admission was necessary to provide context to statements elicited by the defense and to 16 dispel a misleading impression created by the defense. ln Rainey, the spouses of two deceased 17 Navy pilots brought a products liability suit against the manufacturer of the aircraft and the 18 company that had serviced the aircraft. Id. at l56. Prior to the trial, one ofthe plaintiffs, who 19 himself was a Navy ?ight instructor, investigated the crash and drafted a detailed letter explaining 20 his theory that the aircraft crashed as a result of a loss of power caused by ?some form of 2! pneumatic sensing/fuel fiow malfunction, probably in the fuel control unit.? Id. at i59 (internal 22 quotation mark omitted). In the same letter, the plaintiff also noted that his wife, one of the 23 deceased Navy pilots, ?had unsuccessfully attempted to cancel the ill-fated training ?ight because 24 of a variety of adverse factors including her student?s fatigue.? Id. He further noted that one of 25 the aircrew members had reacted ?instinctiveiy and abruptly" when another plane came 26 unexpectedly close. Id. at 160. 27 At trial, the defendants called the piaintiff as an adverse witness and elicited testimony 28 about his letter, Speci?cally, his statements that his wife had tried to cancel the training flight due Bowscr, Barry: Opposition to Gov?t Motions in Liminc 000185 (189 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 189 of 245 Case Document 51 Filed 06/17/15 Page 8 of 9 1 to her student?s fatigue and that ?her airplane had violated pattern integrity in turning left 2 prematurely.? Id. at 160, 170. The plaintiffadmitted that he made both statements. Id. at I60. 3 On cross-examination, plaintiff?s counsel asked plaintiff whether he had also opined in the same 4 letter that the cause of the crash was loss of power. Id. Defense counsel objected to the question, 5 and the trial court sustained the objection. 1d. 6 The Supreme Court determined the trial court erred in excluding plaintiff?s response on 7 cross-examination: 8 We have no doubt that the jury was given a distorted and prejudicial impression of [the plaintiff?s] letter. The theory of [the plaintiff?s] case was that 9 the accident was the result ofa power failure, and, read in its entirety, his letter . . . was fully consistent with that theory. . . . What thejury was told, however, through defendants? direct examination of [the plaintiff] as an adverse witness, was that [the plaintiff] had written six months after the accident (1) that his wife had attempted to cancel the flight, partly because her student was tired and emotionally I2 drained, and that ?unnecessary pressure? was placed on them to proceed with it; and (2) that she or her student had abruptly initiated a hard right turn when the 13 other aircraft unexpectedly came into view. it is plausible that ajury would have 14 concluded from this information that [the plaintiff] did not believe in his theory of power failure and had developed it only later for purposes of litigation. 15 16 Id. at 170?71. While the Supreme Court discussed Rule 106, it ultimately held it unnecessary to 17 decide the issue on the basis of Rule 106 or on the basis that a hearsay exception applied. Id. at 18 l7l-72 n. 5. Rather, the Supreme Court concluded-that ?general rules of relevancy? compelled I9 admission of the excluded statements, noting that ?when one party has made use of a portion of a 20 document, such that misunderstanding or distortion can be averted only through presentation of 21 another portion, the material required for completeness is fpsofacto relevant and therefore 22 admissible under [Federal Rules of Evidence] 401 and 402.? Id. at 172. 23 Here, if the government presents any portion of Mr. Bowser?s statement to the FBI 24 concerning the September 12, 2014 incident, the Court must permit defense counsel to cross- 25 examine the FBI agent, or agents, regarding Mr. Bower?s other statements concerning the 26 incident. Such statements do not constitute hearsay, as they would be offered for the purposes of 27 providing context and dispelling the misleading impression created by the government. Just as in 23 Rainey, if the government elicits testimony regarding Mr. Bowser?s statement that he hit the Bowser, Barry: Opposition to Gov?t Motions in Limine 000186 (190 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 190 of 245 Case Document 51 Filed 06/17/15 Page 9 of 9 helicopter with the laser, it is plausible that thejury will conclude that Mr. Bowser?s defense?? 2 that he hit the helicopter merely a concoction of defense counsel familiar with 3 the elements of 18 U.S.C. 39A. Indeed, thejmy may be less liker to accept Mr. Bowser?s 4 defense given that a reasonable person under arrest and in the custody of the FBI would have told 5 the interrogating FBI agents that the laser strike was accidental. 6 Accordingly, should the government present any portion of Mr. Bowser?s statement to the 7 FBI concerning the events of September l2, 2014, defense counsel should be free to cross- 8 examine the FBI agent or agents concerning Mr. Bowser?s complete statement pursuant Rafney. 9 The Court should therefore deny the government?s first request. IO 11. THE DEFENSE HAS NO OBJECTION TO THE REMAINING REQUESTS. 12 The defense has no objection to the government?s requests to exclude: (1) reference to the 13 punishment Mr. Bowser would receive if convicted; (2) reference to the occurrence and substance I4 of plea negotiations; and (3) reference to the effect ofthe prosecution on Mr. Bowser?s family. IS 16 CONCLUSION 17 For the reasons set forth above, the Court should deny the government?s request to 18 exclude Mr. Bowser?s complete and unedited statement to the FBI. The defense has no objection 19 to the government?s second, third, and fourth requests. 21 DATED: June 17, 2015 22 HEATHER E. WILLIAMS Federal Defender 23 24 By: Erin Snider ERIN 25 BATEMAN Assistant Federal Defenders 26 Attorneys for Defendant 97 BARRY LEE BOWSER, IR. 28 Bowser, Barry: Opposition to Gov't Motions in Liminc 000187 (191 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 191 of 245 Case Document 46 Fited 06/15/15 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, 1:15-cr-0088 LJO SKO 1 ORDER PURSUANT TO IN CAMERA INSPECTION OF POLICE RECORDS Plaintiff, v. BARRY LEE BOWSER, JR, Defendant. The Court has received and reviewed (in Camera) the response of the Bakers?eid Police Department to the subpoena issued June 13 2015 for the records of Police Of?cers .1. Amos (#1074) and E. Ceiedon (#1201). The reSponse was received and reviewed in chambers on June 15, 2015, having been received by the Clerk's Of?ce ofthe Court on June 12, 2015. The response is in full compliance with the subpoena. There were no such records in existence for Officer E. Celedon. There were records that ?t into the broad categories of the subpoena for Of?cer J. Amos. review of those very few documents, the Court concludes that they are not reievant in any way to the type of facts/pertinent law found in the instant case, and have nothing to do with truthfuhtess, improper interrogation or fa1se arrest allegations. There are no documents to be ordered to be discovered. iT is SO ORDERED. Lawrence J. O?Neill UNITED STATES DISTRICT JUDGE Dated: June 15, 2015 Upon 000188 (192 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 192 of 245 Case Document 45 Filed 06/14/15 Page 1 of 7 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney J. PETTIGREW Special Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 4974000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, v. BARRY LEE BOWSER, JR., Defendant. The United States of America, by and through its undersigned counsel, hereby responds to Defendant Bowser?s motion to exclude testimony of the government?s expert witness, Dr. Leon McLin. On May I l. 2015, following the defendant?s request for a speedy trial, the Court ordered the CASE NO. GOVERNMENTS TO MOTION TO EXCLUDE EXPERT TESTIMONY DATE: .iune 22, 2015 TIME: 10:00 am. COURT: Hon. Lawrence J. O'Neill TIMELINESS filing of motions in [imine on or before May 29, 2015. CR. 21. On May 27, the government provided notice to the defense that it intends to introduce expert opinion testimony of Dr. Leon McLin. See Def. Ex. C.R. 43-1. The government also noted in its trial brief ?led on May 27 the fact that it intends to call Dr. McLin as an expert witness and provided legal authority in support of his testimony. OR. 26. On May 22, the Court issued its Pretrial Order. CR. 22. In the order, the Court indicated that any further motions in limine required Court approval in advance offiling. On .Iune 12, while the government was on annual leave (a fact that was noted on the record at the RESPONSE To DISCOVERY MOTION 000189 (193 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 193 of 245 Case Document 45 Flied 06/14/15 Page 2 of 7 time of setting trial), the defendant moved to exclude the testimony of Dr. McLin. CR. 43. The record does not indicate whether the defendant obtained prior authorization from the Court to move to exclude the testimony of Dr. McLin. lfhe did not obtain such authorization, his motion was not timely ?ied and should not be considered by the Court. II. NATURE OF THE EXPERT TESTIMONY Dr. Leon McLin is a Senior Research Optometrist for the Air Force Research Laboratory, who previously qualified in this Court as an expert and testified at the trial of United States v. Rodriguez/Coleman, LJO. Dr. M'cLin is not only a medical expert in the bio-effects of lasers but is an expert in the mechanics of lasers. As noted in its letter to the defense and in its trial brief, the government intends to caii Dr. McLin to testify that: (1) In order for a laser beam to illuminate the cockpit the laser beam necessarily had to intersect the cockpit window, consistent with deliberate aiming ofthe cockpit; (2) The green laser illumination ofa helicopter cockpit flying 401 to 500 feet above ground level and about 1/8 miie away at the 9:00 o?clock position to the heliCOpter from the source wouid be visible to the individual pointing the laser on the ground; (3) When a laser beam hits the exterior of an aircraft it reflects off of the aircraft and the of the laser beam makes it easier to track the aircraft; (4) The tracking of an aircraft and laser illumination of the cockpit are consistent with deliberative and purposeful, not random or accidental acts; (5) Laser pointers, particularly green laser pointers, are readiiy available over the internet; (6) The green wavelength is inherently several times brighter for milliwatt compared to a red laser. A green laser would appear, depending on the wavelength, 4 to 30 times brighter than a red laser; and (7) The wavelength of most green lasers (532 nm) is close to the eye?s peak sensitivity when they are dark-adapted. See Def. Ex. CR. Bowser now seeks to exciude these opinions. He argues that: Dr. McLin is not quali?ed because his expertise is in the ?physiological effects? of lasers, not laser mechanics or function; Dr. GOVERNMENTS RESPONSE TO DISCOVERY MOTION ?return? 000190 (194 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 194 of 245 Case Document '45 Filed 06/14/15 Page 8 of 7 McLin?s opinions do not comply with Daubert/Kumho; and Dr. McLin?s opinions invade the province ofthejury and are irrelevant. As discussed in more detail below, Dr. McLin?s opinions are properly admissible. Dr. McLin has ample training and experience regarding lasers to render opinions regarding the mechanics and functionality of a green laser beam emitted from a laser pointer. Further, given what Dr. McLin knows about green lasers, its effect on the heliCOpter pilot and tactical ?ight officer, the placement of the heliCOpter in relation to the defendant, and the time of evening of the laser incident, it does not require any experiments or scienti?c testing for Dr. McLin reliably to reach the conclusions set forth above. DR. EXPERT TESTIMONY IS PROPERLY ADMISSIBLE If specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness quali?ed as an expert may testify in the form of an opinion. Fed. R. Evid. 702. In considering the admissibility oftestimony based on some "other specialized knowledge," Rule 702 generally is construed liberally. United States v. Hankey, 203 F.3d 1 160, I 168 (9th Cir. 2000); see also United States v. McDavr?d, _F.Supp. 2d_, 2008 WL 850307 at DC. No. 35 MCE (ED. Calif, March 28, 2008) (J. England permitting expert testimony about anarchist groups? methods and motives in order to providejury with a context to better understand other evidence relating to motive) (unpub). The Court has "broad latitude" in determining whether an expert's opinion is reliable. Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 141-42 (1999). Not only must the Court be given broad discretion to decide whether to admit expert testimony, but it "must have the same kind of latitude in deciding how to test an expert?s reliability." Hankey, 203 F.3d at I 168 (citation omitted). The Court may consider the Daubert test or any other facts in addressing relevant reliability concerns regarding expert testimony. Kumho Tire, 526 U.S. at 150 (noting that "there are many different kinds of experts, and many different kinds of expertise"). For example, in Hankey, the Ninth Circuit ruled that a districtjudge had properly admitted an expert witness?s testimony regarding gang culture and custom and their effect on the level of disclosure offered by gang members testifying at trial. The court stated that ?[g]iven the type of expert testimony proffered by the government? the Dauber! factors did not apply. Rather, admissibility of expert opinion testimony generally turns on the following preliminary question of law determinations by the trial judge GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000191 (195 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 195 of 245 Case Document 45 Filed 06/14/15 Page 4 of 7 under Fed. R. Evid. 104(a). - Whether the opinion is based on scientific, technical, or other Specialized knowledge; Whether the expert's opinion would assist the trier of fact in understanding the evidence or determining a fact in issue; - Whether the expert has appropriate qualifications 113., some special knowledge, skill, experience, training or education on that subject matter. Whether the testimony is relevant and reliable. Whether the methodology or technique the expert uses the conclusions (although the expert's credibility is for thejury). Whether its probative value is substantially outweighed by the risk of unfair prejudice, confusion of issues, or undue consumption oftime. See Han/ray, 203 F.3d at 168. Like the gang expert?s testimony in Han/ray, Dr. McLin's opinions amply meet these criteria. Dr. McLin is in a position to offer opinions about laser optics and mechanics. The reliability ofhis testimony ?depends heavily on [his] knowledge and experience . . . rather than the methodology or theory behind it.? 1d. at I 169. Dr. McLin?s opinions are based on scienti?c, technical or specialized knowledge knowledge of lasers, gained through extensive education, training, experience, and peer recognition in the field of lasers. Further, Dr. McLin's opinions would assist the trier of fact in understanding the evidence or determining facts in issue. It is not common knowledge that a laser expands in diameter at varying distances. It is not common knowledge that green lasers are much brighter than red lasers. it is not common knowledge that it requires skill and a steady hand to track and hit the cockpit of an aircraft. it is not common knowledge that a laser beam must intersect the cockpit window in order for it to illuminate the cockpit. It is not common knowledge that the illumination ofthe cockpit ofa helicopter would be visible to the individual pointing the laser on the ground given the distance, altitude and position of the helicopter at the time of night in this case. It is not common knowledge that the laser beam would reflect off the helicopter exterior, excluding the cockpit window, and provide a ?return? to assist in the tracking of the aircraft. None of the Opinions that Dr. McLin would offer are based on ?common sense? and experience of laypersons. Def. Mot. at 5:25. RESPONSE TO DISCOVERY MOTION 000192 JEWN (196 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 196 of 245 Case Document 45 Filed 06/14/15 Page 5 of 7' Speci?cally, in Dr. McLin's opinion, the illumination of the cockpit requires the intersection of the laser beam with the cockpit window, which is consistent with a deliberate aiming of the laser pointer at the aircraft. This opinion is helpful to thejury and is highly relevant to assessing the mens rear element of the Section 39A charge, which requires proof of knowingly aiming the beam of a laser pointer at an aircraft or its ?ight path. This opinion would clearly assist thejury in determining facts in issue. Dr. McLin?s opinion renders it less likely that Bowser did not know that he was aiming the beam ofa laser pointer at the aircraft. Dr. McLin?s opinion that the illumination ofthe cockpit with a green laser would have been visible to Bowser, given the altitude, distance, and position of the aircraft, as well as the time of night, is likewise helpful to the jury and is highly relevant to the knowledge element. Dr. McLin?s Opinions that the tracking of an aircraft is not an easy thing to do and that the laser beam would reflect off the helic0pter, creating a ?return? to allow for ease of tracking, which is consistent with deliberative rather than random action, is also helpful to thejury in assessing the defendant?s mans ran. Dr. McLin?s opinion that green laser pointers are much brighter than red lasers is scientifically based and is helpful to the jury to assess the defendant?s mens rea that he knowingly pointed the beam ofa laser pointer at an aircraft or its ?ight path. The foregoing opinions are particularly helpful given the defendant?s statements to law enforcement and anticipated defense that Bowser was merely exploring the long range capabilities of the laser pointer by striking a nearby radio tower and that, in doing so, he heard the helic0pter, turned around, and the helicopterjust ?ew into the laser beam. Dr. McLin?s opinions renders it less likely that Bowser did not know he was aiming the beam of a laser pointer at an aircraft or its flight path. Further, Dr. McLin is more than suf?ciently qualified to render the opinions set forth above. Dr. McLin has quali?ed as an expert in this Court and rendered opinions similar to those being proffered in this case. In addition to having received a doctorate in Optometry and an undergraduate degree in biology, Dr. McLin has a masters degree from UC Berkeley in physiological optics. He has over 28 years of experience in measuring light and optics. His job as a Senior Research Optometrist/Vision Scientist at the Air Force Research Laboratory involves the evaluation and research on both the visual GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000193 (197 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 197 of 245 Case Document 45 Filed 06/14/15 Page 6 of 7 and functional effects of lasers. At the Air Force Research Laboratory, Dr. McLin is the principle investigator for laser glare and laser dazzlers, Prior to hisjob at the Air Force Research Laboratory, he was a Senior Research Vision Scientist at Northrop Grumman, where his job included conducting research on visual perception and cognitive interpretation ofvisual signals and obscurants, including laser effects. Dr. McLin is and has been for years a member of the voting committee for the American National Standards Institute (ANSI) regarding the Safe Use of Lasers Outdoors and two ANSI subcommittees relating to lasers. He has written and published over 100 scientific articles about lasers, including an articie about the ?dazzle? effect of lasers aimed at aircraft that appeared in the March 2015 edition of Applied Optics. See Def. Ex. C.R. 43-1, a copy of which was provided to the defense in discovery. Finally, Dr. McLin?s opinions are reliable. Moreover, the Daubert factors (peer review, general acceptance for McLin?s opinions, potential error rate, etc.) simply are not applicable to this kind of testimony, whose reliability depends heavily on the knowledge and experience of the expert, rather than the methodology or theory behind it. See Kym/70 Tire, 536 US. at l50 ("Engineering testimony rests upon scientific foundations, the reliability of which will be at issue in some cases . . . . In other cases, the relevant reliability concerns may focus upon personal knowledge or experience") (internal citations omitted). Nor would the admission of Dr. McLin?s testimony create unfair prejudice under Fed. R. Evid. 403. His testimony would be relevant and highly probative of a material issue: to establish that Bowser knowingly aimed the beam ofa laser pointer at the police helicopter or its flight path. Rule 403 supports exclusion of relevant evidence only if its probative value is substantially outweighed by the danger of unfair prejudice. As explained in the advisory note to Rule 403, unfair prejudice ?means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.? Fed. R. Evid. 403, Notes ofAdvisory Committee. Indeed, courts have held that excluding relevant evidence on grounds of prejudice is an extraordinary remedy that must be used sparingly, Dorie: v. Fibreboard Corp, 765 F.2d 456 (5th Cir. 1985), and only when the defendant proves the evidence is not only prejudicial but unfairly prejudicial. Hendrix v. Raybestos-Manhattan, Inc, 756 F.2d 1492 (l ith Cir. 1985). GOVERNMENTS RESPONSE TO DISCOVERY MOTION 000194 tn (198 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 198 of 245 Case Document 45 Filed 06/14/15 Page 7 of 7? There can be no doubting the signi?cant probative value of Dr. McLin?s opinions. Dr. MoLin?s testimony would not be unfairly prejudicial. lt wouid not tend to suggest decision on an improper basis, such as an emotional. Any prejudicial effect ofthe admission of Dr. McLin?s testimony would not "substantially outweigh" its probative value. Fed. R. Evid. 403. For all these reasons, admission of Dr. McLin's expert testimony is pmper. IV. CONCLUSION Based on the foregoing, it is respectfully requested that the Court deny the defendant?s motion excluding Dr. McLin?s testimony. BENJAMIN B. WAGNER United States Attorney BAYLEIGH J. PETTIGREW Special Assistant United States Attorney Dated: June 14, 2015 KAREN A. ESCOBAR KAREN A. ESCOBAR Assistant United States Attorney By: RESPONSE TO DISCOVERY MOTION 000195 U?l (199 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 199 of 245 Case Document 44 Filed 06/14/15 Page 1 of 9 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney BAYLEIGH PETTIGREW Special Assistant United States Attorney 2500 Tuiare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 4974000 Facsimile: (559) 4974099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. LJO-SKO Plaintiff. GOVERNMENTS RESPONSE TO RECIPROCAL DISCOVERY BARRY LEE BOWSER, .IR., DATE: June 22, 2015 TIME: 10:00 am. COURT: I-Ion. Lawrence J. ONeill Defendant. The United States of America, by and through its undersigned counsei, hereby responds to Defendant Bowser?s discovery motion filed herein on June 5, 2015.I CR. 41. I. BACKGROUND The Iaser incident occurred on September 12, 2014, at a business owned by Michael Moreland (?Moreland preperty?) in Bakers?eid. The defendant was at that time residing on the Moreland property in a motor home for the purpose of providing security. Bakers?eld Police Department (BPD) Of?cers Celedon and Amos contacted Bowser at the time of the laser incident at the Moreland property and arrested him that day after an on scene investigation. As documented in Of?cer Celedon?s report which I In its pretrial order, the Court ordered the parties to seek Court approval prior to ?ling pretrial motions in this matter. CR. 22. It is not known to the government whether the defense obtained such approval prior to the ?ling of his discovery motion. Otherwise, the time for ?ling pretrial motions expired on April 20, pursuant to Local Ruie which requires the filing of pretrial motions within 21 days of arraignment in the absence ofa motion schedule. GOVERNMENTS RESPONSE TO DISCOVERY MOTION DISCOVERY MOTION AND v. FORMAL MOTION FOR 000196 La(200 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 200 of 245 Case Document 44 Filed 06/14/15 Page 2 of 9 was provided months ago to the defense in initial discovery, Bowser made incriminating statements about the incident to the police. As noted in the report, Bowser?s statements were recorded. Although Officer Ceiedon?s report noted that the recording itself was booked as evidence into state custody, the recording was not obtained by federal authorities until at or near the time it was produced to the defense on June 4. At no time did the defense ever request the production of recording of Bowser?s statement, which was equally available to the defendant via the subpoena process. While counsel for the government was on prescheduled annual leave last week, the government obtained an enhanced copy of recording, since the original cepy produced by the BPD was not completely audible. AUSA Escobar?s legal assistant was instructed to immediately produce the enhanced recording to the defense. The state did not pursue prosecution of the laser incident, in deference to federal authorities who handled follow-up investigation. On or about December 8, 2014, BPD Officer Christopher Bagby contacted the defendant telephonically regarding the theft ofa pickup truck at the Moreland property. Of?cer Bagby documented this contact and the government produced the report to the defense in discovery several weeks ago after the defense argued that his flight from Caiifornia was not to avoid prosecution ofthe laser incident but to avoid prosecution for theft. While the focus of Officer Bagby?s investigation was concerning the theft, Bowser did indicate to the officer that he was then in Springfield, Illinois and was not aware of any thefts. I On March 17, 2015, the defendant was found in San Luis Obispo sleeping on the side of the road in a rented vehicle. The San Luis Obispo County deputy who found the defendant determined that Bowser had an outstanding warrant for this case and placed him under arrest. When FBI SA Brick Bach and FBI TFO Joshua Nicholson went to San Luis Obispo County to take custody of Bowser, Bowser said in a recorded statement that he moved to Arkansas after he bailed out on the state laser charge and took the laser with him. He said he played with the laser a little bit in Arkansas but decided it would be better to get rid of it and, in fact, ?mutilated? it. He further admitted that he knew he did something wrong when he hit the helicopter with the laser. Bowser also said he did not like Arkansas, so he decided to move back to California after having someone check to see if he RESPONSE TO Discovsnv MOTION 000197 (201 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 201 of 245 Case Document 44 Filed 06/14/15 Page 3 of 9 had any outstanding warrants. The government produced the FBI report of the defendant?s statement, as weli as the recording itself, to the defense many weeks ago. At the defendant?s arraignment on March 30, the defendant requested discovery and the government requested reciprocal discovery. The government has complied with its discovery obligations in this matter. To date, the government has not received any discovery from the defense. II. SPECIFIC DISCOVERY REQUESTS 1. Rule Requests The Ninth Circuit has heid that any order requiring the government to produce "all" statements of the defendant is overbroad. United States v. Ho?man, 794 F.2d 1429 (9th Cir. 1986). Thus. Bowser?s request for the production of his statements is over broad. Def. Disc. Mot. at 3:9. Pursuant to Fed. R. Crim. P. 16(a), the government has disclosed to the defendant: any re written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control ofthe government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the government; that portion of any written record containing the substance of any relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a government agent; recorded testimony of the defendant before a grand jury which relates to the offense charged; and the substance of any other relevant oral statement made by the defendant whether before or after arrest in response to interrogation by any person then known by the defendant to be a government agent if the government intends to use that statement at trial. Consistent with the scepe of Rule i6, the government has disclosed the substance ofall relevant orai statements made by the defendant, before or after arrest, in reaponse to interrogation by a per defendant knew was a government agent that the government intends to use the statement at trial. Notwithstanding the foregoing, the government has produced any and all statements in its custody or control that Bowser made to BPD Officers Celedon, Amos and Bagby, as all as FBI Agent Erick Bach and TFO Joshua Nicholson. 2. Rule Requests The government has produced any and ali material CD8 and DVDS within its ?possession, GOVERNMENTS RESPONSE TO DISCOVERY MOTION levant son the 000198 LUJN Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 202 of 24 Case Document 44 Filed 06/14/15 Page 4 0f 9 custody, or control.? Fed. Crim. P. (F). 3. Rule Request Rule l6(a)(2) provides: [T]his rule does not authorize the discovery or inspection of reports, memoranda, 01' other internal government documents made by the attorney for the government or other agents in connection with the investigation or prosecution of the case. . . . Fed. R. Crim. P. Nonetheless, the government has provided all federal law enforcement reports in this matter and has produced all local law enforcement reports created in connection with the investigation ofthis case that are in the government?s ?possession, custody, or control." Fed. R. Crim. P. 4. Rule Request The government has produced any recordings in its ?possession, custody, or control." Fed. R. Crim. P. 16(a)(l The government is not aware of the existence of any photographs taken at the time ofthe incident and none are in its possession, custody, or control. The government intends to obtain and produce before trial photographs ot?the victim helicopter, along with photographs ot?the area whe incident occurred. 5. Rule Requests The government has produced any and all tangible objects and evidence that it intends to use in its case-in-chief at trial, in accordance with Rule See response to Request No. 3 above with respect to Bowser?s request for reports and documents. See response to Request No. 4 above with respect to Bowser's request for photographs. The government has produced BPD dispatch logs and recording of the laser incident. Rough notes, generally, are not discoverable. With respect to any notes of witness interviews, the production of notes of witness interviews, documents, including rough notes and surveillance which relate to the investigation ofa case are expressiy excluded from pretriai discovery and insp by Rule l6(a)(2) as being government documents. See also United States v. Andersson, 813 F.2d 1450, 1459 (9th Cir. 1987) (?an agent's rough notes taken during the course of surveillance need not be RESPONSE TO DISCOVERY MOTION (202 of 324) 5 re the notes, ection 000199 Jib-(203 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 203 of 245 Case Document 44 Fiied 06/14/15 Page 5 0f 9 preserved or produced") (citing United States v. Bernard, 623 F.2d 551, 557?58 (9th Cir. i979). Under the .lencks Act, however, witness statements based solely on rough notes fali within the .iencks Act and must be produced. On the other hand, the Jencks Act does not require the production of rough notes or surveillance iogs which form the basis of statements summarized in a law enforcement report. In United States v. Pisa/[0, 877 F.2d 762 (9th Cir. 1989), the defendant unsuccessfully argued that the government was required to produce FBI rough notes of witness interviews which came within the Jencks Act. The Ninth Circuit Speci?cally held that the government is not required to surrender all material connected with the preparation of witness statements. The statements and rough notes of non- testifying witnesses are not subject to disclosure under the Jencks Act. Nor are they discoverable under Rule 16. Only if statements of non-testifying witnesses constitute Brady material they be disclosed before trial. With respect to the defendant?s request under subparagraph a relating to information relating to the piiot?s response to a man armed with a gun on September 12, 2014, the government has produced the Kern County Sheriff?s Of?ce (KCSO) report documenting the matter. According to the FBI, there are no KCSO dispatch reports or recordings of relating to the laser or gun incident. Nonetheless, this information is not in the government?s ?possession, custody, or control? and is thus not subject to production. Fed. R. Crim. P. With respect to the defendant?s request under subparagraph relating to radio and dispatch communications and logs, the government is not aware ofthe existence of any such material maintained by the KCSO and has produced all relevant BPD material in the government?s ?possession, custody. or control.? Fed. R. Crim. P. The government submits that any such material unrelated to the laser incident, such as calls for other criminal activity, is irrelevant and inadmissible. However, it is equally available to the defense via the subpoena power ofthe Court. With respect to the defendant?s request under subparagraph 0 relating to the pilot?s reporting of the laser incident to his superiors or the FAA, the government has produced any and all such reports within its ?possession, custody, or control.? Fed. R. Crim. P. See also reSponse to Request No. 3 above. RESPONSE To DISCOVERY 000200 (204 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 204 of 245 Case Document 44 Filed 06/14/15 Page 6 Of 9 6. Rule See response to Request Nos. 2 through 5 above. 7. Jencks Act Material The rule governing discovery of a defendant's statements does not require discovery of witness statements. Sendejas v. United States, 428 F.2d 1040 (9th Cir. 1970). The production of statements by witnesses is governed by 18 U.S.C. 3500, commonly referred to as the Jencks Act. The Jencks Act provides that disclosure of statements by government witnesses cannot be compelled prior to the direct examination of the witness. The Ninth Circuit has repeatedly upheld this legislation against constitutional challenge and has mandated strict compliance with its provisions. United States v. 659 F.2d 932, 936 (9th Cir. l98l); United States v. Washabaugh, 442 F.2d 1 l27, 129 (9th Cir. E971). The government, therefore, requests that this Court make no order concerning the pretrial disclosure of witness statements inconsistent with the encks Act. Further, with respect to non?testifying witnesses, the government is neither obliged under Rule i6 nor the Jencks Act to provide statements of such witnesses to the defendant. The government notes, however, that it has provided expansive materials in discovery, including many items, such as reports by government agents, which are not subject to discovery under Rule 16, that reference witness statements. Fed. R. Crim. P. 16. Only if statements ofnon-testif?ying witnesses constitute Brady material must they be disclosed before trial. The government is not aware of any statements ofnon-testifying witnesses that are exculpatory. All such statements are incriminating. Any and all such statements in the government?s "possession, custody, or control? have been produced, notwithstanding the timing limitations of the Jencks Act. 8. Brady Material The government is aware of its obligations under Brady and cases decided under the due process principles set forth in that case. According to Brady, the government must disclose evidence which shows the defendant's innocence. But Brad does not announce a rule of retrial discover it is a 3/ statement of a constitutional rule designed to ensure fair trials. The Brady rule does not stand for the proposition that the Due Process Clause mandates a certain quantum of pretrial discovery in criminal cases. Weathezford v. Bursey, 429 US. 545 (1976). The right GOVERNMENTS RESPONSE TO DISCOVERY MOTION Griffith 000201 LLAM (205 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 205 of 245 Case Document 44 Filed 06/14/15 Page 7 of 9 to pretrial discovery is established by the Federal Rules of Criminal Procedure, not by the Due Process Clause. Brady forbids the suppression of favorable evidence at trial; it does not require pretrial disclosure of exculpatory evidence. United States v. Jones, 612 F.2d 453 (9th Cir. 1979). Moreover, Brady requires disclosure only of evidence that is material to the issue of guilt or punishment. Brady v. Maryland, 373 US. 83, 87 (1963). The government will meet its obligations under Brady in a timely fashion, but it is not required to make the sort of open-ended discovery requested by the defendant in this case. Nor does it impose an affirmative obligation on the prosecution to investigate ?every tidbit of information that is, or could ripen into, impeachment evidence.? United States v. Lee Vang Ler, 706 F.3d 1252, 1260 (10th Cir. 2013). To the extent that the defendant is requesting evidence that may impeach the credibility of a government witness, the government acknowledges that such information may, in some circumstances, constitute Brady material. However, evidence affecting the credibility of a witness falls within Brady only if the reliability of the given witness may be determinative of guilt or innocence. Gig/i0 v. United States, 405 US 150, 154 (1972); Under/States v. Bos/Ie/l, 952 F.2d 1 101, 1 106 (9th Cir. E991). In addition, although Brady exists as an independent foundation to preserve evidence, it is not intended to override the mandate or timing requirements ofthe iencks Act. United States v. Jones, 612 F.2d 453, 455 (9th Cir. 1979); United States v. Anderson, 574 F.2d 1347, 1352 (5th Cir. 1978). In particular, the Due Process Clause does not require the government to disclose before trial the names of its witnesses, just so the defense can have sufficient time to investigate their backgrounds for impeachment information. Weathesz'ordv. Bursey, 429 US. 545, 559 (1977) (rejecting the notion that the Due Process Ciause required the government to disclose the name of an adverse witness so the defense can ?do a background check? on him ?for purposes of see United States v. Neve/S, 490 F.3d 800, 803 (10th Cir. 2007) (?The Supreme Court has established that no constitutionai right to pretrial discovery of witnesses exists in non?capital cases?). Therefore, to the extent that the defendant requests such information, the government will provide such information in a timely fashion consistent with the requirements of the Jencks Act. ifthere is any doubt concerning the applicability of Brady to a specific ?le, the prosecutor will GOVERNMENTS RESPONSE To DISCOVERY MOTION 000202 1,3 (206 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 206 of 245 Case Document 44 Filed 06/14/15 Page 8 of 9 turn over the material to the Court for an in camera review. United States v. Cadet, 727 F.2d I453, 1467 (9th Cir. 1984). 9. Giglio Material The government will provide to the defense in advance of trial any evidence that may impeach the witness,.including evidence of impeachable convictions. The government will not provide, nor does it have a constitutional obligation to provide, impeachment/Giglio evidence to the defense of non? testifying witnesses. The government likewise requests any impeachment/Giglio evidence of the defendant?s testifying witnesses in advance of trial. To that end, the government requests that the defendant provide the names, dates of biith, and Social Security Numbers of the testifying defense witnesses to the government in advance of trial in order for the government to obtain any relevant criminal histories. 10. Rule Request The government has provided in its initial discovery production to the defense a copy of the defendant?s criminal history. In addition, on May 26 and in subsequent filings, the government provided notice of its intention to impeach the defendant with his prior forgery and identity theft convictions, should he testify at trial. CR. 25. GOVERNMENTS RECIPROCAL DISCOVERY MOTION As previously requested on March 30, 20l 5, the government renews its reciprocal discovery request, pursuant to Fed. R. Crim. P. i6(b) and 26.2, that: i. The defendant permit the government to inspect and copy or photograph books, papers, documents, photographs, tangible objects, or copies or portions thereof, which are within the possession, custody or control of the defendant and which the defendant intends to introduce as evidence in chief at the triai. 2. The defendant permit the government to inspect and copy or photograph any results or reperts of physical or mentai examination and of scientific test or experiments made in connection with the particular case, or copies thereof, within the possession or control of the defendant, which the defendant intends to introduce as evidence in chief at the trial or which were prepared by a witness whom the defendant intends to call at the trial when the resuits or reports relate to his testimony. RESPONSE TO DISCOVERY MOTION 000203 (207 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 207 of 245 Case Document 44 Filed 06/14/15 Page 9 of 9 3. The defendant disclose to the government a written summary of testimony the defendant intends to use under Rules 702, 703 and 705, Federal Rules of Evidence, as evidence at trial. This summary shall describe the witnesses' Opinions, the bases and reasons therefor, and the witnesses' qualifications. - 4. Pursuant to Fed. R. Crim. P. 26.2, the government further requests that by 5 pm. three calendar days prior to trial, the defendant, by and through his counsel, produce to the government the statements of any witness, other than the defendant, who will testify on behalf ofthe defendant. Further, as requested above, the government requests that the defense provide to the government the dates of birth and Social Security Numbers of its witnesses. As noted above, the government has not received any reciprocal discovery from the defendant, as of this date. BENJAMIN B. WAGNER United States Attorney BAYLEIGH PETTIGREW Special Assistant United States Attorney Dated: June 14, 2015 KAREN A. ESCOBAR KAREN A. ESCOBAR Assistant United States Attorney By: GOVERNMENTS Response TO DISCOVERY MOTION 000204 (208 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 208 of 245 Case Document 43 Filed 06/12f15 Page 1 Of 8 1 HEATHER E. WILLIAMS, Bar #122664 Federal Defender 2 JANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #116342 3 Assistant Federal Defenders 2300 Tulare Street, Suite 330 4 Fresno, California 93721-2226 Telephone: (559) 487-5561 Counsel for Defendant 6 BARRY LEE BOWSER, JR. 8 iN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA ll UNITED STATES OF AMERICA, Case No. I2 Plaintiff AMENDED NOTICE OF MOTION AND MOTION TO EXCLUDE 13 vs. EXPERT MEMORANDUM OF 1-4 BARRY LEE BOWSER, JR., Trial: June 30, 2015?8:30 am. Motions Hearing: June 22, 2015w10:00 a.m. Judge: l-Ion. Lawrence J. O?Neill I LAW IN SUPPORT THEREOF 15 Defendant. 17 TO: BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN ESCOBAR, ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR 18 PLAINTIFF: 19 PLEASE TAKE NOTICE that on June 22, 2015, at 10:00 am. or as soon thereafter as 20 counsel may be heard before the Honorable Lawrence J. O?Neill, United States District Court 21 Judge, defendant Barry Bowser, by and through counsel, Assistant Federal Defenders Janet 22 Bateman and Erin Snider, will ask this Court to enter an order precluding the government from 23 introducing at trial the testimony of its proposed expert or, alternatively, limiting the testimony of 24 its preposed optometry expert. 25 26 27 28 000205 (209 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 209 of 245 Case Document 43 Filed 06/12!15 Page 2 of 8 1 This motion is based on the instant motion and notice of motion, the attached 2 memorandum of points and authorities, the Federal Rules of Criminal Procedure and Evidence, all 3 files and records in this case, and such evidence and argument as may be presented at the hearing 4 on this motion. 5 DATED: June 12, 2015 6 Respectfully submitted, 7 HEATHER E. WILLIAMS 8 Federal Defender 9 By: Janet Bateman JANET BATEMAN :0 ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant '2 BARRY LEE BOWSERBowscr. Barry: to Exclude Expert Testimony 000206 (210 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 210 of 245 Case Document 48 Filed 06/12/15 Page 3 of 8 I MEMORANDUM OF POINTS AND AUTHORITIES I. FACTUAL BACKGROUND 3 BARRY BOWSER is charged with one count of aiming a laser pointer at an aircraft, 18 4 U.S.C. 39A, pursuant to an indictment. 5 The government has disclosed its intent to call Dr. Leon McLin as an expert witness at 6 trial. According to the government, Dr. McLin is a research optometrist who leads a vision 7 science research team on the visual effects of lasers. The list of his proffered testimony is 3 attached as Exhibit A. 9 Dr. McLin is a doctor of optometry. His experience is as a therapeutic optometrist and a 10 researcher on light and optics, including laser protection and the visual effects of lasers. (See 1 1 Exh. B.) The government provided a recently published article co?authored by Dr. McLin that 13 defines ?laser dazzle,? the most common experience for civilian and military pilots, as 13 ?disability glare caused by a visible light source.? The publication explores models to calculate l4 ?likeiy dazzle risks by non-experts,? and proposes two new caiculations. (See Exh. C.) '5 There will be no laser pointer introduced in evidence in this case. There is also no ?6 medical or optometric evidence reiating to the alleged victim. The government seeks to expand 17? the scepe of the case by the use of an Optometrist/laser safety expert. As discussed further 13 below, his proffered testimony is inadmissible under Federal Rules of Evidence 702, 704(b), 40] 19 402, and 403. The proffered testimony is not derived by a scientific method, purports to Speculate 20 on the ultimate issue (Mr. Bowser?s mentai state?an element of the charged crime). seeks to 21 introduce evidence of facts that are not of consequence to determining the action, and will result 22 in unfair prejudice, confusion of the issues, and a waste oftime, while providing little probative 23 value. 24 II. ANALYSIS 25 A. Dr. McLin?s Proffered Testimony Does Not Meet the Legal Standard for 26 Admission of Expert Testimony. 27 The admission of expert testimony is governed by Federal Rule of Evidence 702, and by 23 the Supreme Court?s decisions in Day/Jeri! v. A/Ierrell Dow Pharmaceuticals, Inc, 509 US. 579 Bowscr. Barry: to Exclude Expert Testimony 000207 (211 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 211 of 245 Case Document 43 Filed 06/12/15 Page 4 of 8 1 (1993), and Kuth Tire Co. v. Carmichael, 526 U.S. 137 (1999). Rule 702 presents four factors 2 that must be met before a quali?ed expert witness is permitted to testify in the form ofan opinion: 3 the expert?s scienti?c, technical, or other specialized knowiedge wili help the 4 trier of fact to understand the evidence or to determine a fact in issue; 5 the testimony is based on sufficient facts or data; 6 the testimony is the product of reliable principles and methods; and the expert has reliably applied the principles and methods to the facts ofthe 7 case. 3 Fed. R. Evid. 702 (emphasis added). The focus ofthe inquiry is on whether the expert?s 9 testimony will assist the trier of fact: 10 There is no more certain test for determining when experts may be used than the common sense inquily whether the untrained layman would be quali?ed to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject 13 invoived in the dispute. 13 Fed. R. Evid. 702 adivisory committee's note (quoting Ladd, Expert Testimony, 5 Vand. L. Rev. '4 4M, 418 (1952). Testimony that is superfluous and a waste oftime should be excluded. See Fed. 15 R. Evid. 702 adivisory committee?s note. 16 In Daubert, the Supreme Court set forth four, non-exclusive factors to be considered when a District Court is exercising its gatekeeping function under Rule 702. Notably, these factors 13 focus their attention on the technique or methodology employed by the proposed testifying expert: 19 whether the theory or technique can be or has been tested, (2) whether the theory or 20 technique has been subjected to peer review, (3) whether the error rate is known and standards 21 exist controlling the operation of the technique, and (4) whether the theory or technique has 22 gained general acceptance.? Cooper v. Brown, 510 F.3d 870, 880 (9th Cir. 2007). Thus, in 23 applying this test, a court is not meant to assess ?the correctness of the expert?s conclusions but 24 the soundness of her methodology.? Primi'ano 12. Cook, 598 F.3d 558 (9th Cir. 2010). 9-5 in addition to the non-exhaustive Daubert factors, when determining whether expert 26 testimony is sufficiently reliable to be considered by the trier, courts have considered factors 27 including: (1) whether the expert has unjustifiany extrapolated from an accepted premise to an 23 unfounded conclusion, see Gen. Elec. Co. v. Joiner, 522 U.S. 136, 146 (1997) (noting that in Bowser, Barry: to Exclude Expert Testimony 000208 (212 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 212 of 245 Case Document 43 Filed 06/12/15 Page 5 of 8 I some cases a trial court ?may conclude that there is simply too great an analytical gap between the Ix.) data and the opinion proffered?) and (2) whether the expert has accounted for alternative 3 explanations, see ()1an v. Bur/ingron NR.R., 29 F.3d 499 (9th Cir. 1994) (testimony excluded 4 where the expert failed to consider other obvious causes for the plaintiff?s condition). 5 In this case, the government has provided Dr. McLin?s quali?cations and experience-? 6 namely, optometry and the physiological effects of laser exposure on eyes?but his proposed 7 testimony is not about optometry or the physical effects of lasers on the eyes of anyone involved 3 in this case. it does not appear that Dr. McLin will be relyingon his research techniques or 9 methodology in his testimony. His research (laser dazzle models, visual effects of lasers) and its '0 theories, techniques, error rate, peer review, and whether they have been accepted are simply not 1? implicated by his proposed testimony. Rather, his proffered testimony covers non-medical, non? '2 scientific, and ultimately irrelevant facts and opinions. His proffered testimony does not involve 13 any methodology for the court to assess. Dr. McLin will not assist the trier to determine any fact 14 in issue, of which there appears to be only one: did Mr. Bowser knowing/y aim a laser pointer at 15 the aircraft. 16 B. Dr. McLin?s Proffered Testimony Invades the Province of the Jury. 17 Federal Rule of Evidence 704(b) precludes an expert from stating an opinion on whether a 13 defendant had a mental state or condition that constitutes an element of a charged offense. The 19 rule regarding expert testimony on this ultimate issue applies to all expert witnesses, not only to 20 and mental health experts. United States v. Mom/es, 108 F.3d 103 i, 1036 (9th Cir. 2! 1997). Several of Dr. McLin?s proffered testimony items should be precluded under Rule 7040)). 22 l. Item (1): The laser beam necessarily intersected window, consistent with deliberate aiming. 23 24 The first part of this proposed testimony?mthat the cockpit window was intersected in 25 order to illuminate the cockpit?is common sense. The defense assumes the pilot will testify 26 consistently with his responses in his FAA questionnaire (one of three documents produced to the 27 defense from anyone associated with the Kern County Sheriff?s Office, the others being a one- 23 page arrest data form and an email). Presumably, his testimony will be that he experienced a Bowser. Barry: to Exclude Expert Testimony 000209 (213 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 213 of 245 . Case Document 43 Filed 06/12/15 Page 6 of 8 1 green laser strike and that the cockpit was illuminated. An eXpert is not necessary to tell thejury 2 that the light traveled through the window, as opposed to some other part of the helicOpter, to 3 illuminate the cockpit. 4 The second part of this proposed testimony?that such illumination is consistent with 5 deliberate aiming?is precisely the type of expert opinion prohibited by Rule 704(b). It is a 6 conclusion on the ultimate issue, namely, Mr. Bowser?s mental state, which is an element of the 7 crime charged. Additionally, it is outside the scope of Dr. McLin?s expertise as an optometrist in 8 the ?eld of visual effects of lasers. It fails to account for alternative theories and it does not rely 9 on any scienti?c methodology. Accordingly, it is inadmissible under Rules 704(b) and 702. 10 2. Items (3) and (4): Lasers re?ect off of helicopters making it easier to "track" them; ?tracking? is consistent with deliberate and purposeful conduct. i2 Presumably the pilot will testify that a green light illuminated the cockpit for two seconds. 13 Like with item (I), the government seeks to introduce expert Opinion testimony on the ultimate 14 issue of Mr. Bowser?s mental state, in violation of Rule 704(b). '5 With proposed testimony items (I), (3), and (4), the government intends to introduce l6 expert testimony that Mr. Bowser purpose/y and deliberately aimed a laser pointer at the 17 helicopter and that his actions were not random or accidental. The government has a heavy 13 burden to prove Mr. Bowser?s mental state beyond a reasonabie doubt. The government is 19 attempting to use Dr. McLin to invade the province ofthejury through testimony about Mr. 30 Bowser?s intent. Such testimony is not only improper, but is also not about the physiological 21 effects of laser pointers on eyes, which is his purported field of expertise. Dr. McLin has not 22 identified a theory or technique on which he is relying. He does not appear to have considered 23 any alternatives. Thus, this testimony should be precluded under Rules 704(1)) and 702. 24 C. Dr. McLin?s Proffered Testimony Shouid Be Excluded Under Rules 401, 402, and/or 403 as Irrelevant and/or More Prejudicial, Confusing, and Wasteful of 25 Time Than Probative. 26 Federal Rule of Evidence 402 provides that ?[i]rrelevant evidence is not admissible." Fed. 27 R. Evid. 402. Evidence is relevant if?it has any tendency to make a fact more or less probable 28 than it would be without the evidence? and ?the fact is of consequence in determining the action." Bowser. Barry: Min to Exciude Expert Testimony 000210 (214 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 214 of 245 26 27 28 Case Document 43 Filed 06/12/15 Page 7 of 8 Fed. R. Evid. 401. The proponent of the evidence bears the burden of establishing relevance. See United Slates v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982) (citing United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979)). Where evidence is of little probative value, it is ?an abuse ofdiscretion to admit it if there?s even a modest likelihood of unfair prejudice or a small risk of misleading the jury." United States v. Hill, 981 F.3d 422, 424 (9th Cir. 1992). This concern is signi?cantly heightened in the context of expert testimony because of ?the aura of authority that experts often exude. which can leadjuries to give more weight to their testimony.? Elsayed Mudhtar 12. Cal. State Hayward, 299 F.3d 1053, 1063?64 (9th Cir. 2002). For these reasons, the Court should apply Rules 401, 402, 403 here and exclude Dr. McLin?s remaining proffered testimony as irrelevant and/or more prejudicial than probative. 1. Item (2): The cockpit illumination was visible to a person on the ground. Dr. McLin has no idea what Mr. Bowser?s vision is like. He has no idea where Mr. Bowser was looking or what he saw. Whether or not Mr. Bowser saw the cockpit illuminated is not an element that the government must prove. This prOposed testimony?s risk of confusing or misleading the jury and wasting time far outweighs any possible probative value. 2. Item (5): Green lasers are available for purchase on the internet. There is no laser pointer in evidence. The pilots believed they were struck with the beam from one. Mr. Bowser believed that the object he had in his possession on September 12, 2014, was a laser pointer. Whether or not green laser pointers are availabie fer purchase over the internet (or at a dollar store, or anywhere else) is totally irrelevant and inadmissible under Rule 402. 3. Item (6) (marked item (7) in government?s trial brief): Green lasers are brighter than red lasers. Again, there is no laser pointer in evidence. Presumably the pilot will testify that his cockpit was illuminated by a green light. The strength of the light in this case is unknown and irrelevant, in any event. Whether or not a green iaser is brighter than a red one does not tend to Bowser. Barry: to Exctude Expert Testimony 000211 (215 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 215 of 245 Case Document 43 Filed Page 8 of 8 I make any fact more or less probable. Introducing a comparison with a red laser?which has IQ nothing to do with this case?is a waste oftime and has the potential to confuse and mislead the 3 jury. Such testimony should be excluded under Rules 402 and 403. 4 4. Item (7) (marked Item (8) in the government?s trial brief): The wavelength of a green laser. 5 6 Testimony on Item (7) should be excluded under Rules 402 and 403 for the same reasons 7 stated above. 3 Even if theCourt concludes that the above referenced items are relevant within the 9 meaning of Rule 401, Dr. McLin?s proffered testimony has little, if any, probative value. He can 10 offer testimony as to what might have been seen on the ground. He can offer testimony in general I 1 about the strength of green laser pointers, but there is no laser pointer here to evaluate. He can 12 offer testimony about the effects of lasers on eyes in general, but here there is no medical or 13 scientific evidence to evaluate. The proffered testimony runs a high risk, however. of prejudicng i4 thejury, confusing the issues, and wasting time. The issue for the trier in this case is simple and 15 limited: did Mr. Bowser knowingly aim a laser pointer at a helicopter? Dr. McLin?s testimony is 16 irrelevant or otherwise inadmissible on that issue. i7 CONCLUSION 18 As set forth above, the Court should exclude the testimony of the government?s proffered '9 optometrist and laser safety expert because that testimony does not qualify as expert 20 testimony under Daubert and violates Rules 702, 704(b), 401, 402, and 403. 22 DATED: June '12, 2015 23 HEATHER E. WILLIAMS Federal Defender 24 25 By: Janet Bat?eman JANET BATEMAN 25 ERIN SNIDER Assistant Federal Defenders 27 Attorneys for Defendant 28 BARRY LEE BOWSER, JR. Bowser. Barry: to Exclude [Expert Testimony 000212 (216 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 216 of 245 Case Document 43-1 Filed 06/12/15 Page 1 of 29 United States v. Barry Lee Bowser, Jr. 1:15-cr-00088 Government Exhibit Disclosure Exhibit A 000218 (217 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 217 of 245 Case Document 43-1 Filed 06/12/15 Page 2 of 29 DEPARTMENT OF JUSTICE United States Attorney Eastern District of California Beqfamin B. Wagner mated States Attorney is Mm? mun I 2500 Tulsa: Street, Suite 4401 Phone 559/ 497-4000 Fresno, CA 93721 Fax 559/ 497-4099 TTD 559/ 497?4500 May 27, 2015 VIA ELECTRONIC MAIL Janet Bateman Erin Snider Assistant Federal Defender Re: Amended Expert Disclosure re: United States Barry Lee Bowser, Jr. LJO-SKO Dear Counsel: The government intends to call the following expert at trial in the above?captioned matter. Dr. Leon McLin, a Senior Research Optometrist for the Air Force Research Laboratory, assigned to the 71 Human Performance Wing, who testi?ed and quali?ed as an expert at trial in United Stores v. Rodriguez/Coleman, LJO, will testify at trial in this case that: in order for a laser beam to illuminate the cockpit the laser beam necessarin had to intersect the cockpit window, consistent with deliberate aiming of the cockpit; (2) The green laser illumination of a helicopter cockpit ?ying 401 to 500 feet above ground level and about 1/8 mile away at the 9:00 o?clock position to the helicopter from the source would be visible to the individual pointing the laser on the ground; When a laser beam hits the exterior of an aircraft it re?ects off of the aircraft and the ?return? of the laser beam makes it easier to track the aircraft; (4) The tracking of an aircraft and laser illumination of the cockpit are consistent with deliberative and purposeful, not random or accidental acts; (5) Laser pointers, particularly green laser pointers, are readin available over the internet; 000214 (218 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 218 of 245 Case Document 43-1 Filed 06/12/15 Page 3 of 29 (6) The green wavelength is inherently several times brighter milliwatt for milliwatt compared to a red laser. A green laser would appear, depending on the wavelength, 4 to 30 times brighter than a red laser; and (7) The wavelength of most green lasers (532 nm) is close to the eye?s peak sensitivity when they are dark-adapted. Dr. McLin leads a vision science team conducting research on the visual and functional effects of lasers. He is also a scienti?c adviser for laser bioeffects research and reviews and provides consultation for laser incidents and accidents for the Department of Defense laser injury hotline. His opinion is based on his training and experience, as well as the discovery and review of any live testimony. Dr. McLin?s updated Curriculum Vitae setting forth his quali?cations is attached hereto, along with his most recent publication, which appeared in the March 2015 edition of Applied Optics. Sincerely, BENJAMIN B. WAGNER United States Attorney By: /s/Karen A. Escobar KAREN A. ESCOBAR Assistant United States Attorney 3 cc: FBI SA Bach enclosure Harris Plea Offer 2 000215 (219 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 219 of 245 Case Document 431 Filed 06/12/15 Page 4 of 29 United States v. Barry Lee Bowser, Jr. Vitae of Dr. McLin Exhibit 000216 (220 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 220 of 245 Case Document 43-1 Filed 06/12/15 Page 5 of 29 Curriculum Vitae Leon N. McLin, Jr., M.S., F.A.A.O. . Senior Vision and Laser Bio-effects Researcher/ Senior Research Optometrist 711th Human Performance Wing Air Force Research Laboratory JBSA FORT SAM HOUSTON TX 78234?2644 Of?ce: Mobile: Fax: .r EDUCATION: - University of California, Berkeley, Berkeley, CA, MS, physiological optics, 1987 - College of Optometry, Philadelphia, PA, 0.13. (doctor of optometry), 197 7 Temple University, Philadelphia, PA, BA. biology, 1972 EXPERIENCE SUMMARY: - Licensed therapeutic optometrist Top secret clearance . - Certi?ed Acquisition Professional, Level in the functional speciaity of Systems Planning, Research, Development, and Engineering - Certi?ed Acquisition Professional, Level in the functional Specialty of Systems Flaming, Science Technology Manager Authored over 100 scientific publications, scienti?c director for research programs - Approved by Council on Optomcttic Practitioner Education (COPElfor presenting Laser Course to optometrists for CME credit - 27 years of eXperience in laser bioeffects research, expert in measuring light and optics, measurement and ocular examination of nonhuman primates and rabbits Member of the DOD Laser System Review Board - National Research Council Adviser, May 2006 .- Member of the Bioeffects working group Member of voting committee for the American National Standards 2136.1, the Safe use of Lasers - Member of voting committee for the American Nationai Standards 2136.6, Safe Use of Lasers Outdoors Member of voting standards subcommittee for the American National Standards 2136.7, Lasci- Eyewear and Protective Barriers - Member of American National Standards 2136 Technical Subcomittee Laser Bioei?fects and Medical Surveillance - Member of Society of Automotive engineers, SAE 0-10 committee on use of lasers in airspace Co-chair of Society of Automotive Engineers, SAE G- 0-0L Operational Laser Committee - Laser safety category 1 certi?ed April 30, 2014 a McLin Curriculum Vitae 000217 (221 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 221 of 245 Case Document 43?1 Filed 06/12/15 Page 6 of 29 - Privacy Act and HIPAA Clinical Training, May 2013 - CIT 1 Collaborative Institutional Training Initiative, Basic/Refresher Course Human Subjects Research Curriculum, July 2014 WORK EXPERIENCE: FEB 2006 - present Senior Research Optometrist/Vision Scientist Air Force Research Laboratory Supervisor Lt Col Scott Nemrners, (210) 53 981 80 . Lead for vision science team for evaluation and research on the visuai and ?rnctional effects of lasers. Principle investigator for laser glare, laser dazzlers, and photostress recovery. Scienti?c adviser for laser bioeffects research. Member-of voting committees for the American National Standards 25136.1, the Safe Use of Lasers, and 2136.6, Safe Use of Laser Outdoors, that set standards for laser use. Consultant and expert witness for Assistant US. Attorneys for prosecution of laser strikes against aircrait. DEC 2003 to FEB 2006 I Senior Research Vision Scientist Northrop Grumman Corporation, 4241 Woodcock Drive, Suite Supervisor - Dr Peter Smith, (210) 539-8201 A Lead for team for evaluation and research on laser protection. Planned, conducted, and promoted basic research activities to investigate visual perception and cognitive interpretation of visual signals and obscurants. Authored technical information and brie?ngs on progress, evaluation, analysis, and recommendations for applications of laser systems, measurements, and laser theory. Primary investigator for experiments designed to provide recommendations for the optimal design of a visual warning signal and lasers in simulator for the FAA and the Air Force Surgeon General's of?ce. Primary investigator for the effects of laser glare on visual obscuration. Member of voting committee for the American National Standards 2136.1, the Safe use of Lasers, that sets standards for laser use. Member of Society of Automotive engineers, SAE 6-1 0 committee on use of lasers in airspace. Translated mission de?ciencies /requirements into science and technology investment programs. OCT 2001 to FEB 2003 Scienti?c Advisor, Division, Lt Col Air Force Research 8315 Hawks Road Supervisor - .Dr Richard Miller, (210) Scienti?c director for research programs involved the biological effects of directed energy, including lasers and radio frequency energy emitters for a scienti?c research organization with 102 members and budget of over Directed only AF organization investigating bioeffects of revolutionary new directed energy technologies. Advised AF Surgeon General, FAA, and laser standards organization on the use and regulation of lasers. Senior April 30, 2014 - McLin Curriculum Vitae 000218 (222 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 222 of 245 Case Document 43-1 Filed 08/12/15 Page 7 of 29 laser expert and consultant to CSAF and for developing CONOPS for laser applications. Guided the division?s scienti?c direction, reviewed publications, and coordinated tri-Service research efforts: OCT 1997 to OCT 2001 Chief, Optical Radiation Branch, Lt Col Air Force Research 2624 Louis Bauer Drive Supervisor Dr Richard Miller, (210)536-4317 Directed branch activities of 60 personnel investigating the safety and bioeffects of lasers. Coordinated over 20 research and development projects with contracts totaling over per year. Led efforts testing and evaluating laser protection enabling transition of laser protection to SPO. Planned and conducted humanuuse vision science experiments using lasers and other directed energy Optical systems, including photometric calculations and safety analysis. Examined eyes and adnexa of human and animal subjects using appropriate obj ective and/or subjective testing methods to diagnose abnormal refractive, corneal, ienticular, retinal, and neurological conditions as well as Ophthalmic manifestations of systemic disease. Prepared all aspects of scienti?c reports. Responsible for oversight and management of 6. 6.2, and 6.3 federal research programs related to laser protection, vision science, and laser bioeffects, as well as planning and reporting research to meet DOD requirements. MAY 1997 to NOV 1997 Division Chief Scientist, Lt Col Lab/0E0, 2624 Louis Bauer Drive Supervisor - Robert Cartledge, (210)536-4817 Chief scientist of lead agency for human use testing of laser protection. Key adviser and planner for division of 26 government personnel and 36 support contract personnel investigating laser effects and laser protection. Led team that r'nade policy for FAA and FDA controlling operations of laser light shows, reducing incidents of hazardous laser exposure of aircraft. Chief investigator and obtained funding for joint cockpit laser safety research study. Member of 5 ANSI laser safety conunittees: 2136.1 Standard Subcommittee, 2136.4 Standard Subcommittee, 2136.5 Standard Subcommittee, TSC-1 Laser Bioetfects, and TSC-Z Hazard Evaluations. DEC 1992 to MAY 1997 Branch Chief, Lt Col 2624 Louis Bauer Drive Supervisor - Robert Cartledge, (210)536-4811 Lead AF member directing efforts to determine the 'visnal consequences of laser light to air crews and other military personnel. JAN 1992 to NOV 1992 Assistant Chief, Scienti?c Program, Maj April 30, 2014 - McLin Curriculum Vitae 000219 (223 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 223 of 245 Case Document 43?1 Filed 06/12/15 Page 8 of 29 AF HQ Human Systems Center/CSX, Brooks AFB - George Irving Assistant Chief of Staff for Scienti?c Programs for Commander's Action Group. Brooks AFB, TX. Led the Commander's Action Group scienti?c activities. 1987 -- 1992 Research Optometrist. USAF School of Aerospace Medicine, Brooks AFB, TX 1980 1985 Chief Optometry Services, Cannon AF B, NM - 1977 ?.1980 Chief Optometry Services, KJ. Sawyer AFB. TX SPECIALIZED TRAINING: - Evolutionary Acquisition Strategies, Feb 2002; Forecasting, Planning, and Managing Technology, Feb 1998 Ocuiar Therapeutics Course, 1994, and 1984 - Laser Safety Training, November 1993 Systems Engineering, Nov 1992 Intermediate Acquisition Management Course, Feb 1992 Laser Microwave Hazards Course, April 1989 Intro Systems Acquisition Management, Aug 1983 Laboratory Management of 1993 - Certi?ed Acquisition Professional, Level 111, in the functional Specialty of Systems Planning, Research, DeVelopment, and Engineering March 23, 1994 Licensed Therapeutic Optometrist, 1977 - Laser Safety Officer, Cat 1, 1993 AWARDS: - Selection ofjournai articie "Nominal ocular dazzle distance for publication in the Virtual Journal for Biomedical Optics (VJBO), - Invited lecturer for Fechner Day XII-University of Missouri-St Louis October 18, 2013 Keynote Speaker, International LaSer Safety Conference, Mar 2011 - SAE International Recognition Award, 2000, and 2010 - 711 Human Performance Wing Annual Awards, international Award (Team), Laser Glare Team - Civilian of Quarter, Cat V, Jun 2006 - National Research Council Advisor,?May 2006 - Scientist Engineer of Quarter, DES, Jun 2004 - AFRL Comander?s Cup, 2002 - Air Force Meritorious Service Medal,1992, 2002, 2003 - Air Force Commendation Medai 1980, 1985 - Journal of Defense Science, Outstanding Paper Award 1999 April 30, 2014 - McLin Curriculum Vitae 000220 (224 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 224 of 245 Case Document 43?1 Filed 06/12/15 Page 9 of 29 - AFMC Optometrist of Year, 1994 MEMBERSHIPS AND ACTIVITIES IN PROFESSIONAL AND TECHNICAL SOCIETIES: Association for Research in Vision and Ophthalmology Optical Society of' America - designated as Senior Member American Academy of Optometry Laser Institute of America Alamo ?Fri-service Optometric Society Armed Forces Optometric Society American Optometric Association PUBLICATIONS: Over 100 publications on laser effects and vision Kinerk, W., McLin, Riclonao, .M., Rockweli, BA. Near?infrared laser induced intra- ocuiar thermal lens causes- decreased contrast sensitivity in human subjects Optometry and Vision Science, 92: submitted E-abstract Kuyk T., Morin,A., McLin, L., Guevara, M., &Brockmeicr, W., (2014) Assessing visual ?eld restrictions imposed by eyewear using three-dimensional computer aided design and reverse ray tracing, 92: submitted E-abstract Williamson, C. A., McLin, L. N. (2015). Nominal ocular dazzle distance (NODD) Application to laser dazzlers. Proceedings paper, 8th European Symposium on Non-Lethal Weapons, Ettlingen, Germany, May 2015 Williamson, C. A., McLin, L. N. (2015). Nominal ocular dazzle distance (NODD). Appl Opt, 54(7), 1564-1572. doi: 10.1364/ao.54.001564 McLin, L. N., Williamson, C. A., Smith, P. A., Kinerk, W. T., Freeman, D. Rickrnan,1. M., Marika, M. A. (2015). Visual Effects of Laser Strikes: Considerations for Determining a Nominal Ocular Dazzle Distance (N ODD). Paper presented at the Proceedings of the international Laser Safety Conference, Laser Institute of America, Albuquerque, NM. Williamson, C.A., Rickman, J.M., Freeman, D.F., Marika, MA. McLin, LN. (2015) The contribution of atmospheric scatter to laser irradiance at the and laser dazzle effects, Paper presented at the Proceedings of the International Laser Safety Conference, Laser Institute of America, Albuquerque, NM. Williamson, C.A., Rickman, .M., Freeman, D.F., Manka, MA. McLin, LN. (2015) Measuring the contribution of atmospheric scatter to laser dazzle, submitted for publication, Appl Opt, - McLin, L. N., Novar, B. ., Smith, P. A., Garcia, V., Ricionan, J. M., Manka, M. A. (2015). Laser Glare Disruption of Visual Tracking and Shooting; Part 1, Indoor Laboratory, April 30, 2014 - McLin Curricuium Vitae 000221 b. (225 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 225 of 245 Case Document 43?1 Filed 06/12/15 Page 10 of 29 Technical Report Air Force Research Laboratory, 71 1 4141 Petroleum Rd., JBSA Ft. Sam Houston, TX 782344644 Kuyk T., Morin,A., McLin, Guevara, M., &Brocl100 9.9 2.9 0.07 44% 635 r74.1 5.1 1.6 pigmentation 1570 APPLIED OPTICS I Vol. 54, No. 7 I 1 March 2015 (242 of 324) 000239 r? l. Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 243 of 245 Case Document 43~1 Filed 06/12/15 Page 28 of 29 The results highlight that, for this speci?c baseline condition, the most important input parameters to ensure an accurate NODD calculation are the ambi- ent luminance, laser divergence, obscuration extent, laser power, and target size. For this case, it appears that the accuracies of the other parameters are less crucial, although it should be stressed that the im- portance of parameters will vary depending on the baseline case chosen. Figure 95 highlights this fact by showing how the NODD changes when varying only a single param- eter from the baseline inputs. The dashed vertical lines on the plots bound the extremes of the ?less? and ?more? dazzle cases, and it can be seen that these straddle regions of the graphs with a high rate of change of the NODD for the ambient luminance and laser power graphs presented. This means that a relatively small change in these input parameters can yield a relatively large change in the NODD for this particular test case. However, it can also be seen that the NODD calculation is not as sensitive to the observer?s age and the laser wavelength as these parameters are in relatively ?at regions of the NOBD change for the given test case. If the age of the observer was (60 i 10) years, or if the laser wave- length was (500 20) nm, for example, then the accuracy of these parameters would have more sig- ni?cance for the given NODD calculations. 6. Discussion and Future Development A simple model of laser dazzle effects has been presented to ?ll a gap in existing laser safety advice. The model permits a non-expert user to estimate laser dazzle e?'ects in a range of scenarios using mathematics that can be computed on a basic pocket calculator. The Maximum Dazzle Exposure (MDE) has been introduced as quantifying the threshold laser irradiance below which a given target can be detected. The Nominal Ocular Dazzle Distance (NOD13) has been introduced to calculate the mini- mum distance ??om a laser system for the visual detection of a target. Example calculations have been presented to show the utility of the MDE and NOD13 concepts as com- plimentary parameters to existing MPE and NOHD calculations that quantify the risks of permanent 5 0.1 4 to moon (km) 0.001 0.1 16 1000 Ambient luminance (cd'me) Laser power (mW) 100 300 500 7'00 900 damage. It is acknowledged that these new calcula- tions are inherently more complex, requiring not only a few readily quanti?able laser source parame- ters, but also several inputs regarding the visual environment. Therefore, although the calculations are accessible to non-experts, it is impertant to pro- vide users with careful guidance to ensure that they are applied correctly. Calculated MDE values can be used to specify exposure limits to ensure that personnel can still perform their duties in the presence of laser dazzle, or, alternativer they can drive the requirements of laser dazzle systems by indicating the irradiance needed to achieve a particular e??ect. Similarly, NODD calculations can he used to specify safety distances around laser systems for individuals to operate without laser dazzle a?'ecting their perfor? mance, or, alternatively, they can indicate the effec- tive range of a laser dazzle system. The calculation of the angular extent of obscura- tion for a given laser system has also been presented and could ?nd applications in understanding the severity of visual function de?cit caused by laser dazzle systems. The overall model represents a compromise be- tween simplicity and accuracy, and accordingly, it leaves room for improvement in both areas. Regard- ing simplicity, there is scope to shield users from the more complicated MDE calculations [Eq. by presenting precalculated MDE tables for speci?c sets of input parameters. These would provide irradiance guidance while also allowing NODDs to be calculated for di??erent laser systems using the more simple Eqs. and Such an approach presents challenges in establishing combinations of the seven input parameters to the HIDE equation that can cover a suitably relevant range of scenarios. Regarding accuracy, the authors are planning ex- periments to further validate the existing model and improve its precision. Human subject laser dazzle ex~ periments are scheduled for 2014 and 2015 to provide additional data to improve the ambient luminance and laser wavelength dependencies within the model. The existing model has an ambient luminance correc- tion factor based on the authors? previous work but the aim is to provide additional data at a wide 409 500 60!} 700 Age (years) Laser wavelength {nm} (0) Fig. 4. Graphs of NODD versus input parameters for the ?baseline? case. (8.) Ambient luminance, laser power. to) observer age, and laser wavelength. 1 March 2015 I Vol. 54. No. 7 I APPLIED OPTICS 1571 (243 of 324) 000240 0 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 244 of 245 Case Document 43-1 Filed 06/12/15 Page 29 of 29 range of ambient luminance levels to further strengthen this facton In terms of laser wavelength dependence, the authors? own experiences indicate that the photopic e?iciency function used in this model is not a perfect method for accounting for the wavelength dependence of laser dazzle e??ects. Therefore, human exposures at a range of visible will be used to derive a modi?ed photopic ef?ciency function for this application. Beyond these planned re?nements is a desire to extend the relevance of the model in a number of ways. ri?he current model has a static target detection paradigm, which could be extended to allow task complexity to be accounted for, perhaps incorporat- ing more challenging tasks such as target identi?ca- tion or moving targets. Extraocular scattering sources (those external to the human eye) could also be included to account for other factors in the overall laser dazzle problem suchas scatter from trans- parencies car Windshields or aircra? cockpit canopies), the atmosphere, and eyewear specta- cles or contact lenses). Including the effects of a?er-images would also be bene?cial to determine the persistence of visual obscuration alter the laser exposure has ceased. The aforementioned simpli?cations, re?nements, and extensions to the initial model are key to giving con?dence in its accuracy and relevance. This is es- sential if the concepts of MDE and NODD presented herein are to be adopted more widely among the laser community. This research was supperted by (Defence Science and Technology Laboratory) and USAF (United States Air Force) funding. References 1. European Standard, ?Safety of laser products?Part 1: equip- ment classi?cation and requirements," EN 60825-1:2007 (European Committee for Standardization, 2007). 2. American National Standards institute, ANSI 3136.1. 2014-?American National Standard for Safe Use of Lasers,? 2014. 3. Y. Barkana and M. Belkin, ?Laser injuries,? Surv. Ophthal- mol. 44, 459?478 (2000). 4. R. Bimgrubcr, Hiilcnkamp, and V. P. Gabel, ?Thcoretical investigations of laser thermal retinal injury,? Health Phys. 48, 781496 (1985). 5. Wicked Lasers, ?Arctic Blue Laser," .com/. 6. Aero News Network, laser incidents increase in 2013,? February 2014, 7. P. Padmcs, ?Glare and tunnel entrance lighting: effects of stray-light ?tom eye, atmosiahere and 0113) J. 3, 1?24 (1984). B. G. V. Hultgren and B. Knave, ?Discomfort glare and disturb- ances from light reflections in an of?ce landscape with CRT display terminals," App]. Ergon. 5, 2-3 (1974). Q. J. J. Vac, ?Glare todayin historical perspective: towards a new 01E glare observer and a new glare nomenclature,? in Proceedings of the 24th Session of the CIE, Warsaw (ore, 1999), pp. 38-42. 10. American National Standards Institute, ANSI 2136.6- 2005??American National Standard for Safe Use of Lasers Outdoors,? 2005. 15(2 APPLIED OPTICS I Vol. 54, No. 7! 1 March 2015 11Blick, J. M. A. Beer, W. D. Kcsnik, S. Troer, A. Toot, J. Walraven, and W. Mitchell, "Laser glare in the cockpit: psy- chophysical estimates versus model predictions of veiling luminance distribution,? Appl. Opt. 40, (2001). H. D. Reidenbach, "Local susceptibility of the retina, forma? tion and duration of a?erimcges in the case of Class 1 laser products, and disability glare arising ?'om high-brightness light shutting diodes,? J. Laser App}. 21, 46?56 (2009). D. P. Pinoro, D. Ortiz, and J. L. Alio, ?Ocular scattering," Optom. Vis. Sci. 87, (2010). J. J. Vos and J. Boogaard, ?Contribution of cornea to entoptic scatter,? J. Opt. Soc. Am. 53, 869?873 (1963). J. J. Vos, ?Contribution chundus Oculi to Entoptic Scatten? J. Opt. Soc. Am. 53, 1449?1451 (1963Bouman, ?Contribution of retina to entoptic scatter," J. Opt. Soc. Am. 54, 95-100 (1964). T. J. T. P. van den Berg, J. K. Ijspeert, and P. W. Dewaard, ?Dependence of intraocular straylight on pigmentation and light transmission through the ocular wall,? V15. Res. 31, 1361?1367 (1991). T. J. T. P. van den Berg, "Analysis of intraocular straylight, es- pecially in relation to age,? Dptom. Vis. Sci. '73, 52-59 (1995). J. V03, 13. Cole, Bodmann, E. Colombo, T. Takeuchi, and T. J. T. P. van den Berg, equations for disability glare," 0111?. TC Report 01E 146:2002, 2002. L. N. McLin, P. A. Smith, L. E. Barnes, J. R. Dykes, Kuyk, B. J. Never, P. VI Garcia, and C. A. Williamson, "Scaling laser disability glare functions with factors to predict dazzle," presented at ILSC ZOE?International Laser Safety Conference, Orlando, USA, 18?21 March 2013. L. L. Holladay, "The ?mdamcntals of? glare and visibility," J. Opt. Soc. Am. Rev. Sci. Instrum. 12, 271?319 (1926). L. L. Holladay, ?Action of a light-source in the ?eld of view in lowering visibility," J. Opt. Soc. Am. Rev. Sci. Inch-um. 14, 1?45 (1927). . W. S. Stiles, "The scattering theory of the effect on the brightness difference threshold,? in Proceedings of the Royal Society of London Series Papers ofA Biological Character 105 (Royal Society, 1929). Pp. 131?146. . W. S. Stiles and B. H. Crawford, ?The effect of a glaring light source on extraf?ovcal vision,? in Proceedings of the Royal Society of London Series BuBiologiccl Sciences 122 (Royal Society, 1937). PP. 255-280. J. J. Yes and P. Parimos, "Straylight, contrast sensitivity and the critical object in relation to tunnel entrance lighting,? in Proceedings ofthc 20th Session ofthe CIE, Amsterdam 143404 (CE, 1983). 1313- 1-4. J. Vos, "Disability glare?a state of the art report," CIE J. 3, 39-53 (1984van den Berg, ?Report on disability glare," CIE Collection in Vision 8: Colour 01E 135/1 (1999). J. J. V03, ?0n the cause of disability glare and its dependence on glare angle, age and ocular pigmentation,? Clin. Exp. Optom. 86, 363-370 (2003). L. Franssen, J. Tahemero, J. E. Coppens, and T. J. van den Berg, ?Pupil size and retinal straylight in the normal eye,? Investig. Ophthalmol. Vis. Sci. 48, 2375-2382 (2007). International Organization for Standardization, ?Photom- 01E System of Physical Photometry" ESQ 235392005851), 2005. J. E. Coppens, L. Fraxmsen, and'I?. J.T. P. van den Berg, "Wave- length dependence of intraocular straylight,? Exp. Res. 82, 683-892 (2006). W. Adrian, ?Visibility of targets: model for calculation." Light. Res. Technol. 21. 181?-188 (1989). European Standard, ?Safety of laser products?Part 1: equip- ment classi?cation, requirements and user?s guide," EN 60825-1:1994 (European Committee for Electrotechnical Standardization, 1994). G. C. Holst, Imaging System 4th ed. and SPIE, 2006). World Meteorological Organization, Guide to Meteorological Instruments and Methods of Observation, 7th ed. (World Meteorological Organization, 2008). (244 of 324) 000241 (245 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-1, Page 245 of 245 CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellant CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 5, 2016. I certify that all participants in the case are registered CM/ECFF users and that service will be accomplished by the appellate CM/ECF system. DATE: February 5, 2016 /s/ Monica Garza Monica Garza (246 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 1 of 79 NO. 15-10486- IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, V. BARRY LEE BOWSER, R., ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DC. NO. SUPPLEMENTAL EXCERPTS OF RECORD VOLUME 11 BENJAMIN B. WAGNER KAREN A. ESCORAR United States Attorney Assistant US. Attorney Eastern District Of California CAMIL A. SKIPPER 2500 Tulare Street, Suite 4401 Assistant US. Attorney Fresno, California 93721 Appellate Chief Telephone: (559) 497-4000 Attorneys for Appellee Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 2 of 79 SUPPLEMENTAL EXCERPTS OF RECORD VOLUME INDEX DOCUMENT BATES COURT STAMP RECORD PAGEQS) OrderAfter ln Camera Inspection of Kern 249 40 County Sheriffs Dept Records Defendant?s Notice of Motions and Motions 112 250-63 33 ijjne; Memorandum in Support of Defendant?s Motions 1'12 ijjne Government?s Opposition to Defendant?s Motion 264368 32 for Review of Personnel Files of Non-Federal Law Enforcement Witnesses Defendant?s Motion'for Review of Law 269-7 5 29 Enforcement Witnesses? Personnel Records; Opposition to Government?s Request for Denial Government?s Motion for Order Denying 27 6-88 28 Defendant?s Informal Request for Review of Personnel Files of Non-Federal Law Enforcement Witnesses . United States? Trial Brief 284-96 26 Pretrial Order 29799 22 Reporter?s Transcript of Proceedings, Status 300-06 98 Conference (5-1 1-15) Order 807 7 Arrest Warrant and Return 808 I 6 Criminal Complaint 309-17 1 (247 of 324) (248 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 3 of 79 Case Document 41 Filed 06/05/15 Page 1 of 7' HEATHER E. WILLIAMS, Bar #122664 Federal Defender JANET BATEMAN, Bar #241210 ERIN OR Bar 16342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, California 93721-2226 Telephone: (559) 487?556l Counsel for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. DEFENDANT NOTICE OF MOTION AND MOTION FOR MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF Plaintiff vs. BARRY LEE BOWSER, JR., Trial: June 30, 2015m8130 am. Motions Hearing: June 22, 2015??10z00 am. Defendant". Judge: Hon. Lawrence J. O?Neill TO: BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN ESCOBAR, ASSISTANT UN ITEI) STATES ATTORNEY, COUNSEL FOR PLAINTIFF: PLEASE TAKE NOTICE that on June 22, at ?10200 am, or as soon as counsel may be heard before the Honorable Lawrence J. O?Neill, United States District Court Judge, the defendant, Barry Bowser, through counsel, will bring on for hearing the following motion. MOTION Defendant, by and through counsel, Assistant Federal Defenders Janet Bateman and Erin Snider, moves this Court for an order directing plaintiff to produce discovery, and permitting the inspection and copying, ofitems more fully described in the attached Memorandum of Points and Authorities. 000242 (249 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 4 of 79 26 27 28 Case Document 41 Filed 06/05/15 Page 2 of 7 This motion is based upon the attached memorandum ofpoints and authorities, all ?les and records in this case, and such evidence and argument that may be presented at the hearing on this motion. I MEMORANDUM OF POINTS AND AUTHORITIES Background In a criminal indictment filed March 26, 2015, Mr. Bowser is charged with one count of aiming a laser pointer at an aircraft, 18 U.S.C. 39A. According to the discovery, a Kern County Sheriff" 3 Office helicopter was struck. by a laser pointer on September 12, 2014; Two KCSO deputieszevin Austin and Jeremy Storar?were in the helicopter and assisted officers on the ground with apprehending lVlr. Bowser. The discovery indicates that he was arrested, interrogated, and booked by Bakersfield Police Department Officers J. Amos and Eric Celedon. His statement was recorded digitally. That statement was not produced. to the defense until June'4, 2015; the recording is only three minutes and forty-seven seconds long. The state declined to prosecute. A federal criminal complaint was filed on December 29, 2014. Mr. Bowser was arrested in March 2015 by a San Luis Obispo County deputy. He was released to FBI custody. While en route to the Eastern District of California, the FBI conducted a recorded interrogation of Mr. Bowser. Mr. Bowser requested discovery pursuant to Federal Rule of Criminal Procedure 16 and local rules on March 30, 2015. On May 27, 2015, Mr. Bowser delivered written discovery requests to the government; the government responded in a letter dated May 28, 2015 (see attached as Exh. A). I Mr. Bowser now moves this Court to order the government to produce the discovery in dispute outlined below. Requests With Points and Authorities This motion is made pursuant to Federal Rule of Criminal Procedure 16, Eastern District of California Local Rule Crim. 16?440, Brady v. Mary/and, 373 US. 83 (1963), and such other statutory and constitutional rules relating to discovery as may be applicable. Bowser. Barry: Discovery motion [0 000243 (250 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page Case Document 41 Wed 06/05/15 Page 3 of 7 The government?s responsibility for providing discovery is generally defined in Rule 16(a), Federal Rules of Criminal Procedure. According to the Local Rules for the United States District Court, Eastern District of California, upon request of the defendant, unless otherwise ordered by the court, Rule 16(a) discovery shall be provided to the defendant within fourteen days of arraignment. Mr. Bowser requests, to the extent the information requested has not previously been provided, that the government be required to disclose and/or make available for inspection, copying, or photographing the following: 1. Any statements, written or oral, recorded digitally or otherwise, made by Mr. Bowser to any law enforcement officer, government agent, informant, or other third party relevant to this case that is in the government?s possession, custody, or control, the existence of which is known or may become known to the government by the exercise of due diligence. Fed. R. Crim. Free. 16 and United States v. Hoffman, 794 F.2d 1429, 1432 (9th Cir. 1986). Ho?man requires a defendant?s oral statements to be produced when made in response to interrogation to a known government agent. This request includes: a. Any and all statements made by Mr. Bowser to BPD Officers Eric Celedon and J. Amos and others on and after September 12, 2014. b. Any and all statements made by Mr. Bowser to BPD Officers Christopher Bagby and others on or about December 8, 2014. c. Any and all statements made by Mr. Bowser to FBI Agents Erick. Bach and Joshua Nicholson and others on and after March 17, 2015. This request includes any statement by defendant that is repeated, reported, or incorporated in any subsequent oral, written, or recorded statement made and/or prepared by any of the above?listed individuals. 2. Pursuant to Rules 16 (F), the defendant hereby requests copies of any and all CDs and, DVDs generated by the government or its agents as part ofthe criminal investigation. Bowser. Barry: Discovery motion 000244 (251 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page Case Document 41 Filed 06/05/15 Page 4 of 7 3. Any reports, questionnaires, forms, event logs, conclusions, or other notes of activity from the FAA relating to the September 12, 20M incident. This request should be read to include any recorded or written communication from the KSCO and BPD to the FAA reporting the lasing event. It should also be read to include documents from the investigation and conclusions, including its determination whether or not a fine would be levied. 4. Any video recordings, audio recordings, or still photographs of the activities alleged during the investigation ofthis case. Fed. R. Crim. Proc. 16 5. Reports, recordings, and documents of any law enforcement agency involved in this investigation, including radio calls, dispatch and other logs, all papers, rough notes, documents, data, photographs, videotapes, tape recordings, surveillance recordings, and other evidence gathered or produced by these agencies, government agents, or other government witnesses. Fed. R. Crim. P. 18 U.S.C. 2510-2522; 18 U.S.C. 3117; l8 U.S.C. 3121-3127; Brady v. Mary/and, 373 US. 83 (1963); United States V. Price, 566 F.3d 900, 903 (9th Cir. 2009) (?Under longstanding principles of constitutional due process, information in the possession of the prosecutor and his investigating officers that is helpful to the defendant, including evidence I that might tend to impeach a government witness, must be disclosed to the defense prior to trial?); United/States v. Alvarez, 86 F.3d 901, 904 (9th Cir. 1996) (an officer?s rough notes must be disclosed pursuant to Brady if they contain material and exculpatory information). The information sought relates speci?cally to: a. Information relating to the pilot?s mission on September 12, 2014, immediately preceding the lasing, namely his response to a man armed with a gun; b. Recordings and reports of radio and dispatch communications and logs of events by all involved KCSO and BPD of?cers for 15 minutes prior to the lasing event through Mr. Bowser?s arrest and booking; 0. information relating to the helicopter pilot?s reporting of the lasing to any officer or agency, including on September 12, 2014, and afterwthe?fact reporting to his superiors and/or the Bowser, Barry: Discovery motion 000245 (252 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 7 of 79 Case Document 41 Filed 06/05/15 Page 5 of 7 6. Written and audio copies, and reports and notes thereof, of any and all statements made by witnesses in this case. Brady, 373 US. 83. 7. Any and all witness statements discoverable under the Jencks Act and/or under Fed. R. Crim. Proc. 26.2, including but not limited to: a written statement made by the witness and signed or otherwise adopted or approved by him; (2) a stenographic, mechanical, electrical, or other recording or transcription thereof, that is a substantially verbatim recital of an oral statement made by said witness and recorded contemporaneously with the making of such oral statement; and (3) a statement or transcription made by the witness to a grand jury. 18 U.S.C. 3500(e). Written and audio Copies of copies of all rough notes taken during witness interviews by law enforcement officers in connection with this case must be preserved and provided to defendant. See United States v. Harris, 543 F.2d 1247 (1976). 8. Any and all information in whatever form, source or nature, which is favorable to the accused with respect to either guilt or punishment and therefore is discoverable under Brady v. Maryland and its progeny; This request includes, but is not limited to: a. information that tends to exculpate the defendant either through an indictment of his innocence or through the potential impeachment of any government witnesses; and all information of a similar nature that may be or become of benefit to the defendant in preparing for or presenting the merits ofhis defense of innocence at trial. Since plaintiff and defendant may differ in their opinions as to what constitutes exculpatory evidence, defendant requests that the Court examine in camera plaintiff?s files for evidence exculpatory to defendant. In Brady v. Maryland, the Supreme Court held that: ?[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith in the prosecutor.? 373 US. at 87 (internal citation omitted). Brady and its progeny require the production of information helpful to the defendant at the appropriate time requested. Bowser, Barry: Discovery motion 000246 (253 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 8 of 79 k) Case Document 4:1. Filed 08/05/15 Page 6 of 7 b. All evidence important and useful for impeachment purposes, including, but not limited to, all evidence of any promises made, consideration provided, or any other inducements, by the government in connection with this case in exchange for the person's testimony er other participation in this case. See Gig/1'0 v. United/States, 405 US. 150 (1972); see, Under/States 12. Price, 566 F.3d 900, 907 (9th Cir. 2009); United States v. But/er, 567 F.2d 885 (9th Cir. 1978). c. Statements by persons interviewed during the government?s investigation, whether written or oral, that are favorable to the defendant in that they tend to exculpate him or minimize his responsibility. Brady v. Mary/and, 373 US. 83 (1963). Such statements include ?negative exculpatory? statements, tie, statements of informed witnesses that do not mention the defendant. Jones v. Jago, 575 F.2d 1164, 1168 (6th Cir. denied, 439 US. 833 (1978). 9. State whether any intended government witness has any conviction record whatsoever, whether federal, state, or local and the nature of the offense. Gig/1'0 v. United States, 405 .S. 150 (1972); Price, 566 F.3d at 907. Defense counsel must have access to this information far enough in advance of trial to obtain certi?ed court documents necessary for impeachment. 10. Additionally, Mr. Bowser requests a copy ofhis criminal record, the existence of which is known, or by the exercise of due diligence may become known to the government. This request is made pursuant to Rule 16(a)( of the Federal Rules of Criminal Procedure, Fed. R. Evid. 404(b), and Local Rule Crim 16-440. Bowser, Barry: Discovery motion 000247 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 9 of 79 26 27 28 Case Document 41 Filed 08/05/15 Page 7 of 7 Based on Rule 16, and on the authority of Brady v. Mary/and, these discovery requests should be granted. Such discovery shall be subject to a continuing duty to disclose as specified in Rule 16(0). DATED: June 5, 20l 5 HEATHER E. WILLIAMS Federal Defender By: Janet Batemcm JANET BATEMAN ERIN Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. Bowser, Barry: Discovery motion (254 of 324) 000248 (255 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 10 of 79 Case Document 410 Fited 06/04/15 Page 1 of 1 UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, LJO Plaintiff, ORDER AFTER IN CAMERA INSPECTION OF KERN COUNTY v. DEPT RECORDS BARRY BOWSER, JR, Defendant. On une 4, 2015, the Court received and reviewed personnel records from the Kern County Sheriff? 8 Department for Deputies Kevin Austin and Jeremy Storars. The records were produced in camera in response to a subpoena issued at the request of Assistant Federal Defender Janet Bateman, counsel for Defendant Bowser. The documents received were accompanied by the appropriate Declaration of the Custodian of Records, Michael J. Mahoney of the Kern County Sheriff?s Of?ce, dated June 1, 2015. After a complete and thorough review of the records provided on each deputy sheriff, the Court ?nds that none of the records received pertained to truthfulness, allegations of false arrests, or improper interrogation. As a result, no records are ordered released. IT IS SO ORDERED Dated: June 4, 2015 Lawrence J. O?Neill United States District Judge 000249 1?0 DJ 19 20 21 (256 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 11 of 79 Case Document 33 Filed 05/29/15 Page :1 of 14 HEATHER E. WILLIAMS, Bar #122664 Federal Defender JANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #116342 Assistant Federal Defenders Designated Counsel for Service 2300 Tulare Street, Suite 330 Fresno, California 937212226 Telephone: (559) 4876561 Counsel for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. DEFENDANT NOTICE OF MOTIONS AND MOTIONS IN MEMORANDUM IN SUPPORT OF MOTIONS IN Plainti?' vs. BARRY LEE BOWSER, JR, Trial: June 30, 2015 - 8:30 a.m, Motions Hearing: June 22, 2015 10:00 am. Defendant. Judge: Hon. Lawrence J. O?Neill BENJAMIN B. WAGNER, UNITED STATES ATTORNEY AND KAREN ANN ESCOBAR, ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR PLAINTIFF TO: PLEASE TAKE NOTICE that on June 22, 2015, at 10:00 am, or as soon thereafter as counsel may be heard before the Honorable Lawrence J. O?Neill, United States District Court Judge, Defendant Barry Bowser, through counsel, does and hereby will move the Court in [Wine as set forth in the attached memorandum in support of the motions. MOTIONS Defendant, Barry Lee Bowser, Jr., by and through counsel, Assistant Federal Defenders Janet Bateman and Erin Snider, pursuant to the United States Constitution, the Federal Rules of Criminal Procedure, the Federal Rules of Evidence, and all other applicable statutes, case law, and local rules, hereby moves this Court for an order: I. Permitting attorney~conducted voir dire; 2. Excluding evidence required to be, but not yet disclosed under Rule 16, including 000250 (257 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 12 of 79 Case Document 33 Filed 05/29/15 Page 2 of 14 expert testimony not properly noticed; 3. Excluding evidence of other crimes, wrongs, or acts pursuant to FRE 404(b); 4. Excluding evidence of prior convictions pursuant to FRE 609; 5. Excluding the testimony of any government Witness whose criminal conduct has not been disclosed; Ordering the production of Witness statements; . Excluding any statement allegedly made by defendant that has not yet been'disclosed; Excluding evidence of defendant?s move from California to Arkansas; 05>ch . Permitting defendant to raise further issues orally at the motions in [I?m/rte hearing. These motions are based upon the instant motions and notice of motions, the attached statement of facts and memorandum of points and authorities? and such evidence and argument as may be presented at the hearing on these motions. Dated: May 29, 2015 Respectfully submitted, HEATHER E. WILLIAMS Federal Defender Janet Bare/nan JANET BATEMAN ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY BOWSER, JR. By: 000251 (258 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 13 of 79 Case Document 33 Fited 05/29/15 Page 3 of 11.4 MEMORANDUM OF POINTS AND AUTHORITIES Factual Background BARRY LEE BOWSER is charged with one count of aiming a laser pointer at an aircraft, 18 U.S.C. 39A, pursuant to an indictment. I. THIS COURT SHOULD PERMIT VOIR DIRE. This case involves a number of circumstances that one would expect may bias some jurors against Mr. Bowser and impair his right to a fair trial. To minimize any prejudice, the Court should permit the defense to conduct voir dire in addition to any voir dire conducted by the Court. Fed. R. Crim. P. 24(a). II. THE COURT SHOULD PRECLUDE THE GOVERNMENT FROM INTRODUCING EVIDENCE REQUIRED TO BE, BUT NOT YET, DISCLOSED UNDER RULE 16, INCLUDING EXPERT TESTIMONY NOT PROPERLY NOTICED. The Court should preclude the government from introducing evidence required to be, but not yet, disclosed. Rule 16(d)(2) authorizes the Court, among other things, to prohibit a party from introducing evidence not disclosed. United States v. Hernandez?M620, 720 F.3d 760, 768- 69 (9th Cir. 2013) (vacating conviction on the ground that Rule 16 evidence was not disclosed); see also United States v. Aceves?Rosales, 832 F.2d 1155, 1 156-57 (9th Cir. 1987) (upholding trial court order excluding medical record as a sanction for violating Rule 16). The defense requests the Court preclude the government from offering any evidence to which the defense is entitled under Rule 16 and which has not been disclosed to Mr. Bowser. THE COURT SHOULD EXCLUDE EVIDENCE OF OTHER CRIMES, WRONGS, OR ACTS PURSUANT TO FRE 404(b). Federal Rule of Evidence 404(b) prohibits the use of evidence of a. crime, wrong, or other act to prove a person?s character in order to show that on a particular occasion the person acted in accordance with the character. To date, the government has not provided notice of its intent to introduce FRE 404(b) evidence. Mr. Bowser requests that the Court exclude 404(1)) evidence for which the government has not provided notice as of the filing of this motion on May 29, 2015. 000252 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 14 of 79 AWN Case Document 33 Filed 05/29/15 Page 4 of 14 IV. MR. PRIOR CONVICTIONS SHOULD BE EXCLUDED PURSUANT TO FRE 609. The government has provided notice that, if Mr. Bowser elects to exercise his right to testify, it will seek to introduce evidence of Mr. Bowser?s prior convictions for forgery (Cal. Penal Code 470(d)) and unauthorized use of personal identifying information from another person (Cal. Penal Code from 2002 and 2004, respectively. Under Federal Rule of Evidence 609(b), if more than ten years have passed since a witness?s conviction or release from confinement for an offense that is otherwise admissible under Rule 609, evidence ofthat conviction is admissible only if?its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Mr. Bowser received a two-year sentence on the 2002 forgery conviction, and he was released from custody sometime before August 9, 2004.1 The government argues that Mr. Bowser was released from con?nement in December 2008. The defense presumes the government relieson that date based on a parole or probation violation and revocation. However, confinement pursuant to a revocation is deemed confinement imposed for the original conviction only where the violation involved a substantive probation condition that closely parallels the initial criminal activity underlying the conviction. United States v. McClintoc/r, 748 F.2d 1278, 1288-89 (9th Cir. 1984); of? United States v. Daniel, 957 F.2d 162, 168 (5th Cir. 1992) (rejecting argument that release from confinement should not be calculated until probation has terminated and relying on former Rule 609 which explicitly stated that the ten-year period should run from the expiration of parole, probation, or sentence, language removed from Rule 609 in i972).2 The criminal history provided in discovery shows Mr. Bowser was arrested in Ventura County on August 9, 2004. The government references California Department of Correction records, which it has not provided to the defense as of the date of this writing. 2 1n /1/IcC/intock, the defendant was convicted of fraud stemming from professional fund raising. MoC'Tlintoc/t, 748 F.2d. at 1287. His probation included a condition that he refrain from fund raising, and his probation was later revoked for violating that condition. Id. The Ninth Circuit noted that the statute was silent on the question of whether a probation revocation is ?con?nement? for the original conviction. Id. at 1288. The Court concluded that only because McClintock?s violation was ofa substantive provision that ?so directly tracked the original crime,? it may have implicated the same, initial type ofdishonesty. Id. The Ninth Circuit declined to address the issue more broadly. (259 of 324) 000253 (260 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 15 of 79 Case Document 33 Filed 05/29/15 Page 5 of 14 There has been no showing here of whether, and if so when, Mr. Bowser?s parole or probation on the 2002 conviction was revoked, let alone that any violation and resulting revocation was of the kind at play in Accordingly, the proper conclusion is that he was convicted and released from con?nement more than ten years ago. As such, the question then becomes whether the probative value of the 2002 conviction, supported by specific facts and circumstances, substantially outweighs the prejudice Mr. Bowser will suffer should he exercise his constitutional right to testify in his own defense. There is a presumption against the admission of a criminal defendant?s prior convictions and ?[tjhe government bears the burden of showing . . . that the proffered evidence?s probative value substantially outweighs its prejudicial effect.? United States Alexander, 48 F.3d 1477, 1488 (9th Cir. 1995). In determining whether the government has rebutted the presumption against admissibility, the Ninth Circuit suggests that district courts balance the five factors outlined in United States v. Cook, 608 F.2d 1 175 (9th Cir. 1979) (en banc); overruled an other grounds by Luce v. United States, 469 .S. 38 (1984). These factors are: l) the impeachment value of the prior conviction; (2) the temporal relationship between the conviction and the subsequent history of the defendant; (3) the similarity between the prior offense and the offense charged; (4) the impertance of the defendant?s testimony; and (5) the centrality ofthe credibility issue. 1d. at 1 185 n.8 (citing Gordon v. United States, 383 F.2d 936, 940 (DC. Cir. 1967)). Balancing these five factors demonstrates that the government cannot show that the probative value oflVIr. Bowser?s 2002 forgery conviction substantially outweighs its prejudicial effect so as to rebut the presumption against admissibility. The offense occurred over a decade ago. The conviction does not relate to the offense charged; it appears to relate to a theft?type offense. Its impeachment value is therefore minimal. When considering the importance of the defendant?s testimony, it strongly weighs in favor of excluding Mr. Bowser?s prior conviction. Chief Justice Berger explained this factor as follows: One important consideration is what the effect will be if the defendant does not testify out of fear of being prejudiced because of impeachment by prior convictions. Even though ajudge might find that the prior convictions are relevant to credibility and the 000254 (261 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 16 of 79 Case Document 33 Filed 05/29/15 Page a of 14 risk of prejudice to the defendant does not warrant their exclusion, he may nevertheless conclude that it is more important that the jury have the benefit of the defendant?s version of the case than to have the defendant remain silent out of fear of impeachment. Gordon, 383 F.2d at 94041. When the defendant?s testimony is important, he should not be forced into declining to testify because of fear ofthe admission ofhis prior conviction. in this case, the number of witnesses to the alleged offense is limited. The defendant is the only one who can contest certain aspects of the government?s case. It is important that the jury be allowed to hear Mr. Bowser?s version ofevents, so that it can make its impartial decision with the bene?t of all of the facts. The Court should therefore prohibit his impeachment with the prior conviction so as not to discourage him from testifying out of fear of being prejudiced. The government refers to Mr. Bowser?s 2004 conviction for a violation of California Penal Code section 530.5(a) as one for ?identity theft/fraud.? The conviction on the criminal history provided in discovery shows a violation of section but does not include language suggesting identity theft or fraud. Section 530.5(a) is punishable by up to one year in jail and provides: 5 Every person who willfully obtains personal identifying information, as defined in subdivision of Section 530.55, of another person, and uses that information for any unlawful purpose, including to obtain, or attempt to obtain, credit, goods, services, real property, or medical information without the consent of that person, is guilty of a public offense, and upon conviction therefor, shall be punished by a fine, by imprisonment in a county jail not to exceed one year, or by both a fine and imprisonment, or by imprisonment pursuant to subdivision of Section 170. Cal. Penal Code 530.5. Section 530.55 defines ?personal identifying information? to include addresses, mothers? maiden names, and dates of birth, e.g. The elements of section 530.5(a) are: that the person willfully obtain personal identifying information belonging to someone else; (2) that the person use that information for any unlawful purpose; and (3) that the person who uses the personal identifying information do so without the consent of the person whose personal identifying information is being used. People v. Barber, 2i 1 Cal. App. 4th 2l4, 223 (Cal. Ct. App. 2012). in Barber, the California Court of Appeals found that ?[n]either the words ?identity theft? nor any similar phrase appears 000255 (262 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 17 of 79 Case Document 33 Filed 05/29/15 Page 7 of 14 in the statute.? Id. Instead, the statute encompasses ?a much wider range of conduct,? and contains no requirement that the defendant held himself out as another. Id. Merely obtaining personal information and then using it without consent for an unlawful purpose is suf?cient to sustain a conviction. Id. The underlying facts surrounding Mr. Bowser?s 2004 conviction for a violation of section 530.5(a) are not before the Court. The statute is broadly written and encompasses a wide range of conduct. Accordingly, it cannot be ?readily determineldf? that his conviction required proof ofa dishonest act or false statement, as Rule 609(a)(2) requires. Fed. R. Evid. His conviction under a statute punishable by up to one year renders it inadmissible under Rule 609(a)(1). Even ifthis Court finds the conviction falls Within Rule 609(a)(1), the prejudicial effect of its admission is not outweighed by its probative value, for the same reasons detailed above. V. THE COURT SHOULD EXCLUDE THE TESTIMONY OF ANY GOVERNMENT WITNESSES WHOSE CRIMINAL CONDUCT HAS NOT BEEN DISCLOSED. On March 30, 2015, the Court ordered that the government provide discovery in accordance with Rule 16 and the local rules. On May 27, 2015, Mr. Bowser delivered a formal discovery request to the government requesting the disclosure of any evidence that a prospective government witness has engaged in criminal conduct. To date, Mr. Bowser has not received any responsive information. Mr. Bowser requests that the Court exclude the testimony of any government witness whose criminal conduct, including arrests or convictions, has not been disclosed as of the date ofthe hearing on the motions in [I'm/rte. VI. THE COURT SHOULD ORDER PRODUCTION OF WITNESS STATEMENTS. Mr. Bowser moves the Court to order the government to produce all witness statements governed by 18 U.S.C. 3500 and Rule 26.2 of the Federal Rules of Criminal Procedure as soon as practicable without further request by the defense. Additionally, in the interests of efficiency, the defense further moves for disclosurevofall prior statements of government witnesses no later than the start of trial. Included in this motion are all grandjury testimony under Federal Rule of Criminal Procedure 262(1) and anyqnotes used 000256 (263 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page Document 33 Filed 05/29/15 Page8of14 by witnesses when testifying before the grand jury. United States v. Wallace, 848 F.2d 1464, 1470 (9th Cir. 1988). Waiting to disclose such statements until after a witness has testified may require defense counsel to seek a recess in order to read the materials and prepare for cross?examination. To promote efficiency and reduce the amount of time that the Court and jurors must wait for such an examination, the defense requests that all such statements be produced at the start of trial. THE DEFENSE MOVES FOR THE EXCLUSION OF ANY STATEMENT ALLEGEDLY MADE BY DEFENDANT THAT HAS NOT YET BEEN DISCLOSED. VII. Mr. Bowser moves to exclude any statements he allegedly made that have not been provided in discovery pursuant to Federal Rule of Criminal Procedure THE COURT SHOULD EXCLUDE ANY EVIDENCE PERTAINING TO MR. MOVE FROM CALIFORNIA TO ARKANSAS. A. Evidence Pertaining To Mr. Bowser?s Move from California to Arkansas is Inadmissible Because It Is Irrelevant. Federal Rule of Evidence 402 provides that ?[ilrreievant evidence is not admissible.? Fed. R. Evid. 402. Evidence is relevant if?it has any tendency to make a fact more or less probable than it would be without the evidence? and ?the fact is of consequence in determining the action,? Fed. R. Evid. 401. The proponent of the evidence bears the burden ofestablishing relevance. See United States v. Mehrmanesh, 689 .2d 822, 830 (9th Cir. 1982) (citing United States v. Hernandez-Miranda, 601 F.2d 1104, 1108 (9th Cir. 1979)) Defense counsel anticipates that the government will seek to present evidence regarding Mr. Bowser?s move from California to Arkansas approximately a month after his arrest for the laser incident. Specifically, on September 12, 20145 the day ofthe laser incident, officers with the Bakers?eld Police Department arrested Mr. Bowser for a violation of California Penal Code 247.5, discharging a laser at an aircraft. Mr. Bowser was arrested in a commercial business lot, where he lived in a motorhome and worked as a security guard. He was released from the Kern County jail the same day he was arrested. He was never charged in state court. Mr. Bowser remained in Bakersfield for approximately a month after his arrest, during which time he continued to live in the same lot where he had been arrested. Federal agents observed Mr. 000257 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 19 of 79 Case Document 83 Filed 05/29/15 Page 9 of 14 Bowser in the lot on October 2, 2014, October 3, 2014, and October 9, 2014. During this there was a rash of thefts in the lot. Mr. Bowser was fearful that he would be blamed for the thefts, although he had nothing to do with them. When the owner of the lot confronted Bowser regarding the theft of a tractor, he voluntarily agreed to leave the lot. it was at this point that he decided to. leave California and move to Arkansas with his girlfriend, Wendy Smith, who had family in Arkansas with whom they could stay. Mr. Bowser purportedly explained to his friend, Danny Gibson, that he was leaving California because he was ?getting into too much trouble with law enforcement.? Mr, Bowser drove to Arkansas with Ms, Smith sometime between October 9, last reported date federal agents saw October 26, 2014??the date the search warrant was executed. Mr. Bowser remained in Arkansas for 3 months but decided to return to California in March 2015, as he was not pleased with the situation in Arkansas and his aunt, who lives in Arroyo Grande, California, was ill. Prior returning to California, Mr. Bowser purportedly asked a friend to check public records for any outstanding warrants. Mr. Bowser was arrested on the federal warrant while in route to Arroyo Grande on March) 17, 2015. Defense counsel anticipates the government will seek to present evidence of Mr. Bowser?s move from California to Arkansas to suggest that Mr. Bowser to avoid prosecution for the laser incident. ?[T]he fact of an accused?s ?ight, escape from custody resistance to arrest, concealment, assumption of a false name, and related conduct, are admissible as evidence of consciousness of guilt, and thus of guilt itself.? United States v. Myers, 55 1036, 1049 (5th Cir. 1977) (citation omitted), cited with approval in United States v. Silverman, 861 F.2d 571, 581 (9th Cir. 1988); see also United States v. Blanca, 392 F.3d 382, 395 (9th Cir. 2004). An accused?s alleged ?ight is relevant, however, only ifthe factfinder can draw a of unbroken inferences: from the defendant?s behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actua of the crime charged.? Silverman, 861 F.2d at 581 (quoting Myers, 550 F.2d at 1049:); see also Blanca, 392 F.3d at 395 (stating that there must be ?evidence sufficient to support a chain (264 of 324) time, everal living to 1 0 F.2d chain 1 guilt of 000258 (265 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 20 of 79 Case Document 33 Filed 05/29/15 Page 10 of 14 unbroken inferences from the defendant?s behavior to the defendant?s guilt of the crime charged? (quoting Silverman, 86l F.2d at 581) (internal quotation mark omitted)). In determining whether these inferences are justified, the Ninth Circuit looks to such factors as ?whether the defendant knew the police suspected him ofa particular crime? and ?whether the defendant fled immediately after the crime.? Silverman, 861 F.2d at 581; accord Blanca, 392 F.3d at 395. Here, the evidence is insufficient to support the necessary ?chain of unbroken inferences.? Blanca, 392 F.3d at 395 (quoting Silverman, 861 F.2d at 581). First, there is nothing to suggest that Mr. Bowser?s decision to move from California to Arkansas nearly a month after he was arrested was in any way prompted by a desire to avoid prosecution for the laser incident. Significantly, Mr. Bowser remained in Bakers?eld for a month following his arrest, during which time he was living and working in the same lot where he had been arrested. When Mr. Bowser left California, there was no pending case against him, as the Kern County District Attorney?s Office apparently declined to prosecute the laser case; the federal Criminal Complaint was not tiled until December 29, 2014. There is no evidence suggesting that Mr. Bowser was aware that a federal investigation regarding the laser incident was ongoing at the time he left for Arkansas. Given the length of time between the laser incident and Mr. Bowser?s move, and the absence of any evidence that Mr. Bowser knewof the federal investigation, there is no support for any inference that Mr. Bowser?s decision to move was an attempt to ?ee, See, eg, Blanca, 392 F.3d at 395; Silverman, 861 F.2d at 582 n.4. Mr. Bowser?s purpOrted statement to Mr. Gibson that he was leaving California because he was ?getting into too much trouble with law enforcement? does not alter the analysis. Mr. Bowser?s statement to Mr. Gibson was unrelated to the laser incident, which occurred a month earlier. During his interview with federal agents, Mr. Bowser explained that there had been a rash of thefts in the lot where he worked and lived, and he believed that he would be blamed for the thefts. Thus, even ifa factfinder could draw the inference that Mr. Bowser?s move to Arkansas was an attempt to flee, the could not rule out the possibility that Mr. Bowser was fleeing California because he believed that he was suspected of committing the thefts. See .Myers, 550 F.2d at 1050 (finding a ?ight instruction improper where the defendant was charged 10 000259 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 21 of 79 Case Document 33 Filed 05/29/15 Page 11 of 14 with a robbery in Florida and had also committed a robbery in because, assuming the defendant attempted to flee, it was ?impossible to say whether [his] flight resulted from feelings of guilt attributable to the Florida and robberies or from consciousness of guilt about the robbery alone?). indeed, it is more reasonable to infer that, if Mr. Bowser?s conduct can be characterized as ??ight,? he wasfleeing as a result of his fear of being blamed for the thefts rather than the laser incident, given the delay between the laser incident and Mr. Bowser?s move to Arkansas and, the fact that there were no charges pending for the laser incident. See Silverman, 861 F.2d at 582 n.4 (?Evidence that a defendant fled immediately after a crime was committed supports an inference that the ?ight was motivated by a consciousness of guilt of that crime. As the time between the commission of the offense and the ?ight grows longer, the inference grows weaken?). Likewise, there is nothing to suggest that Mr. Bowser?s purported statement that he had a friend review public records for outstanding warrants prior to his return to California was in any way connected to the laser incident. Again, at the time that Mr. Bowser left California, he believed that he was going to be blamed for a rash of thefts in the lot where he lived and worked. There is nothing to suggest that Mr. Bowser was concerned about a warrant related to the laser incident. He had been arrested and released on the laser incident. He was never charged nor did he appear before ajudge. Even if the government could establish that Mr. Bowser?s decision to move to Arkansas a month after the laser incident was prompted by a concern that he would be prosecuted for the laser incident, the government has presented no evidence to support the inference that Mr. Bowser left California because ofa ?consciousness ofguilt? and that this ?consciousness of guilt? is probative of actual guilt in this case. Mr. Bowser was certainly left with the impression that he did something wrong on September 12, 2014. This impression, however, had nothing to do with Mr. Bowser?s consciousness of guilt or actual guilt but, rather, how law enforcement reacted to the laser incident. As the Affidavit in Support ofthe Criminal Complaint explains, after the helicopter was allegedly struck by the laser, the pilot ofthe helicopter ?immediately executed a left, diving, turn toward the source [ofthe laser] to gain airspeed while closing the (266 of 324) 000260 (267 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 22 of 79 Case Document 33 Filed 05/29/15 Page 12 of 14 distance? and the ?Tactical Flight Of?cer . . . kept the subject illuminated with the helicopter?s spotlight.? As Mr. Bowser? later explained to federal agents, knew I did something when I hit that, when the helicopter come, was coming back at me, you know what I mean?? Thus, even if the government could establish that Mr. Bowser left California to avoid prosecution for the laser incidentw?a showing the government cannot makemthere is nothing to connect Mr. Bowser?s alleged desire to avoid prosecution with a consciousness of guilt or actual guilt of the charged offense. Simply put, a cannot draw the required unbroken chain of inferences necessary for Mr. Bowser?s move to be probative of guilt in this case. Because evidence regarding Mr. Bowser?s move has no bearing on any fact of consequence, this Court should enter an order excluding such evidence pursuant to Rule 402. B. Evidence Pertaining to Mr. Bowser?s Move From California to Arkansas Is Inadmissible Under Rule 403. Federal Rule of Evidence 403 provides that, even if evidence is relevant within the meaning of Rule 401, the trial court may nevertheless exclude it ?if its probative value is i substantially outweighed by a danger of one or more ofthe following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.? Fed. R. Evid. 403. The Ninth Circuit has explained that, ?[wjhere the evidence is ofvery slight (if any) probative value, it?s an abuse of discretion to admit it ifthere"s even a modest likelihood of unfair prejudice or a small risk of misleading thejury.? United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992). in the event that this Court finds that evidence of Mr. Bowser?s move is relevant within the meaning of Rule 40], the Court should nevertheless exclude such evidence pursuant to Rule 403, as such evidence has slight probative value and will result in unfair prejudice, confusion of the issues, and wasting time. Specifically, if the government is permitted to present evidence regarding Mr. Bowser?s move a month after the laser incident, it will be necessary for Mr. Bowser to present evidence regarding the rash ofthe thefts in the lot where he lived and worked, as evidence of the thefts is necessary to'explain his decision to move. Evidence of Mr. Bowser?s 12 000261 (268 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 23 of 79 Case Document 33 Filed 05/29/15 Page 3.3 of 14 move, and the reasons for the move, will merely detract from the central issue in this casewthat is, whether Mr. Bowser knowingly aimed a laser at an aircraft. Evidence regarding Mr. Bowser?s move from California to Arkansas is, at most, ofminimal probative value. Because the probative value ofthe evidence is substantially outweighed by the danger of unfair prejudice, confusing the issues, and wasting time, this Court should exclude the evidence pursuant to Rule 403. C. Statements Danny Gibson Made to Edgar Munoz Regarding Mr. Bowser?s Move Are Inadmissible Hearsay. Federal Rule of Evidence 802 provides that, unless an exception applies, hearsay is inadmissible. Fed. R. Evid. 802. Hearsay is defined as ?a statement that: the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth ofthe matter asserted in the statement.? Fed. R. Evid. 801(0). Hearsay within hearsay is excluded unless there is an exception applicable to each level, of hearsay. Fed. R. Evid. 805. i in this case, federal agents interviewed Edgar Munoz, who was present at the time of the search of the motorhome on October 26, 2014. Mr. Munoz reported to the federal agents that Mr. Bowser ?dropped the Motor home off at a friends [sic] house belonging to DANNY GIBSON. GIBSON then'brought the Motor Home to MUNOZ to clean. BOWSER told Gibson that he was leaving the state of California because he was getting into too much trouble with law enforcement.? Mr. Munoz?s statements to law enforcement regarding what Mr. Gibson told Mr. Munoz are inadmissible hearsay. Although Mr. Bowser?s statements to Mr. Gibson are arguably nonhearsay under Federal Rule of Evidence 801(d)(2) (statement by a party opponent), Mr. Gibson?s statements to Mr. Munoz are not covered by an applicable hearsay exception. Accordingly, this Court should exclude any testimony from Mr. Munoz regarding statements Mr. Gibson may have made to Mr. Munoz. l3 000262 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 24 of 79 mum Case Document 33 Filed 05/29/15 Page 14 of 14 IX. THE MOTIONS IN LIMTINE HEARING. issues at the motions in [imine hearing should that prove necessary and appropriate. CONCLUSION For the foregoing reasons, the Court should grant Mr. Bowser?s motions in liming. Dated: May 29, 2015 Respectfully submitted HEATHER E. WILLIAMS Federal Defender Janet" Bateman JANET BATEMAN ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. By: l4 DEFENDANT REQUESTS LEAVE TO RAISE FURTHER ISSUES ORALLY AT Defense counsel respectfully requests the Court allow Mr. Bowser to raise additional (269 of 324) 000263 (270 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 25 of 79 Case Document 32 Fiied 05/29/15 Page 1 of 5 BENJAMIN B. WAGNER 1 United States Attorney KAREN A. ESCOBAR Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 98721 Telephone1 (559) 4974000 Facsimile: (559)497-4099 {0 -I>w Attorneys for Plaintiff 6 United States of America 7 8 IN THE UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, CASE NO. 1315-CR-088 LJO-SKO 12 Plaintiff, OPPOSITION TO -, MOTION FOR REVIEW OF 13 V. PERSONNEL FILES OF LAW ENFORCEMENT WITNESSES 14 BARRY LEE BOWSER, JR, Date: June 22, 2015 15 Defendant. Timel 10100 am. Courtroomi Hon. Lawrence J. O?Neill 17 The United States, by and through its attorneys, BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, and KAREN A. ESCOBAR, 19 Assistant US. Attorney, hereby responds to Defendant motion for review of 20 testifying local law enforcement officers? personnel files in this matter. 21 motion is not based on applicable authority. It also misconstrues the 22 government?s offer of a solution. 23 The government does not oppose the defendant?s efforts to obtain an In camera 24 review of the personnel files of testifying local law enforcement officers. The government 25 1 26 27 28 000264 (271 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 26 of 79 Case Document 32 Fiied 05/29/15 Page 2 of 5 did not suggest, as the defendant claims at page 6 of his motion, that a Rite/Jess motion should be filed in state court. The government specifically noted in its May 28' filing that the defendant could submit ?a Pita/Jess type motion filed in this Court? to obtain what the defendant desires. CR. 28 at 5321-22. The government does not, however, have a duty to obtain the personnel files of state law enforcement officers, since the government does not have possession, control, or knowledge of the contents in the personnel files of the testifying state law enforcement officers, as noted in more detail below. FACTUAL BACKGROUND The defendant has requested a speedy trial in this matter and the matter was set for June 30. By means of a letter submission to the United States on May 27, 2015, the defendant requested a number of items, which were not the subject of any previous filings or requests, including ?the personnel or related file for all testifying federal, state, and local government witnesses.1 The government does not have possession, control or knowledge of the personnel files of testifying local law enforcement officers. ARGUMENT Relying on United States V. Fort, 472 F.3d 1106 (9th Cir. 2007), the defendant claims that the government has a duty to seek out Bradvmaterial, including the personnel files of testifying local law enforcement officers. The defendant?s reliance In the defendant?s letter request, the defendant noted that some of the items desired might be needed to craft a suppression motion. 2 011 000265 26 27 28 (272 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 27 of 79 Case Document 32 Fiied 05/29/15 Page 3 of 5 Forte is misplaced. As Magistrate Judge McAuliffe noted in United States V. Rivaz-Felix; 2013 WL 1694449, at DC. No. (ED. Calif, April 18, 2013), a case in which counsel for this defendant was involved, Fort ?did not hold that state law enforcement i personnel files must be turned over? to federal prosecutors. Indeed, Fort did not deal with the government?s obligation to turn over the personnel files of state law enforcement officers files; it dealt with the government?s Rule 16 obligation to turn over state law enforcement reports generated prior to federal involvement in a criminal investigation. The applicable controlling authority is United States V. Denn'nguez-Wlla, 954 F.2d 562 (9th Cir. 1992). In DomingueZ'ViIIa, the Ninth Circuit held that ?[tl he prosecution is under no obligation to turn over materials not under its control.? Id. at 566, citing United States V. Aisha/e, 941 F.2d 761, 764 (9th Cir. 1991). Without citing applicable authority, the defendant insists that ?an outlier.? Def. Mot. at 5111. However, in Judge McAuliffe found Dominguez Villa was applicable authority, as the Ninth Circuit and other district courts of this circuit have found. See, egz, United States V. Perez, 198 F.3d 256, at *3 (9th Cir. 1999) (unpub); United States V. Parrish, 83 F.3d 430, 430 (9th Cir. 1996) (unpub); United States V. Origel, 2010 WL 1654134, *2 (DAriz. April 20, 2010) (unpub); United States V. Johnson, 2014 WL 6068089, *8 Nov. 13, 2014) (unpub); Buchanan V. United States, 2013 WL 4761025, *6 September 4, 2013) (unpub); United States V. Khan, 2010 WL 5135363 December 9, 201.0) (unpub) (J. Hollows denying 3 000266 (273 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 28 of 79 Case Document 32 Filed 05/29/15 Page 4 of 5 defendant?s Hem/31201112 request for review of state officer?s personnel file, noting ?[tlhe fact that state law enforcement personnel were involved in the underlying federal criminal investigation, here only indirectly, does not make their personnel files ?under the control of,? or ?in the possession of the federal prosecutor?). Indeed, this Court found in United States V. Perez, 2014 WL 3362240, *3 July 9, 2014'), that ?the government is under no obligation to turn? the personnel files of local law enforcement officers. Further, the Court noted that a district court ?exceedlsl its authority by requiring review of personnel files of state law enforcement witnesses.? DemI'ngez~~ V?la, 954 F.2d at 565?566. Notwithstanding the foregoing, the government categorically does not oppose the defendant?s efforts to independently seek out potential Brady material consistent with the prior precedent of this and other courts of this circuit. CONCLUSION In light of the foregoing, the government respectfully requests that the Court deny the defendant?s request that the government examine the personnel or related files for all testifying state and local witnesses. In the alternative, the government does not oppose a continuance to allow the defendant sufficient time to attempt to obtain in camera review of the personnel files of testifying state law enforcement officers. Should the Court desire further hearing or action on this matter, as previously noted by the government when trial was set, counsel for the government is not available from June 5 through June 12, having scheduled at the beginning of this year annual leave 000267 (274 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 29 of 79 Case Document 32 Filed 05/29/15 Page 5 of 5 for this time. Datedi May 29, 201.5 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney Karen Escobar KAREN A. ESCOBAR Assistant United States Attorney 000268 (275 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page Case Document 29 Filed 05/29/15 Page 1 of 7 HEATHER E. WILLIAMS, Bar #122664 Federal Defender .IANET BATEMAN, Bar #241210 ERIN SNIDER, OR Bar #116342 Assistant Federal Defenders 2300 Tulare Street, Suite 330 Fresno, California 93721 ?2226 Telephone: (559) 487-5561 Counsel for Defendant BARRY LEE BOWSER, JR. IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Case No. I Plaintgf? DEFENDANT MOTION FOR REVIEW OF LAW ENFORCEMENT vs. PERSONNEL OPPOSITION TO BARRY LEE BOWSER, JR., REQUEST FOR DENIAL Defendant; Trial: June 30, 2015 Time: 8:30 am. Judge: Hon. Lawrence J. O?Neill TO: review for Bmdy/Giglio material of the personnel records of all testifying federal, state, and local law enforcement officers, and opposes the government?s motion for an order denying such BENJAMIN B. WAGNER, UNITED STATES ATTORNEY, AND KAREN ESCOBAR, ASSISTANT UNITED STATES ATTORNEY, COUNSEL FOR PLAINTIFF: Defendant Barry Bowser hereby moves this Court for an order for the production and request. 000269 (276 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 31 of 79 27 28 Case Document 29 Filed 05/29/15 Page 2 of 7 This motion is made pursuant to 28 U.S.C. 636, Rule the Due Process Clause of the Constitution as interpreted in Brady v. Alan/land, 373 .S. 83, 86 (1963), and Article Ill of the Constitution. Such information is exculpatory, impeaching, and necessary and material to preparing a defense. This motion is based upon the attached memorandum of points and authorities, all ?les and records in this case, and such evidence and argument as may be presented at the hearing on this motion. MEMORANDUM OF POINTS AND AUTHORITIES Background BARRY BOWSER is charged with one count of aiming a laser pointer at an aircraft, 18 U.S.C. 39A, pursuant to an indictment. According to the discovery, a Kern County Sheriff?s Of?ce helicopter was struck by a laser pointer on September 12, 2014. Two KCSO deptitieszevin Austin and Jeremy Storarwwere in the helicopter and assisted of?cers on the ground with apprehending Mr. Bowser. The discovery indicates that he was arrested and booked by Bakers?eld Police Department Of?cers J. Amos and Celedon. On May 27, 2015, Mr. Bowser delivered his formalized written discovery requests to the government, including a request for a review of the KCSO and BPD of?cers? personnel ?les for Brady/Giglio material. The government moved on May 28, 2015, for a motion denying that request, arguing that it does not have an obligation to produce Brady/Giglio material that is not within its possession, custody, or control. Mr. Bowser now requests an order from this Court granting his request for'review of the testifying of?cers? personnel ?les for Brady/Giglio material. This case is set for trial on June 30, 2015. The defense cannot be prepared for trial without crucial Brady/Giglz?o material relating to the government?s main witnesses. Argument In its motion for a denial order, the government argues that it has no duty under the law to seek and produce Bran?/Giglio material in the hands of local law enforcement, and that the Bowser, Barry: for Order for state of?cer ?les 000270 (277 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 32 of 79 Case Document 29 Filed 05/29/15 Page 3 of 7 defense has an independent process available to it to seek the material. The government did not 2 dispute that the material the defense seeks is Brady or Gig/i0 material. 3 A. The Government Has a Duty to Seek Out Brady Material. 4 i The Constitution requires a fair trial, and one essential element of fairness is the 5 prosecution?s obligation to turn over exculpatory evidence. United States v. Eagle)?, 473 .S. 6 667, 674?675 (1985); Mil/re v. Ryan, 711 F.3d 998, 1002 (9th Cir. 2013). Due Process requires 7 that the prosecution disclose all exculpatory material, ?including evidence that could be used to 8 impeach one of the prosecution?s witnesses or undermine the prosecution?s case.? Mil/re, 71 9 F.3d at 1003. To ensure a fair trial, a criminal defendant is entitled to Brady material contained in 10 a testifying officer?s personnel files. United States v. Hem/torn, 931 F.2d 29, 30 (9th Cir. 1991). 11 ?The prosecutor is charged with knowledge of any Brady material of which the 12 prosecutor?s office or the investigating police agency is aware.? Milke, 711 F.3d at 1012. Due 13 Process imposes on the prosecutor an ?inescapable? duty to disclose Brady material known to an 14 investigating police agency. Id. The prosecutor must disclose Brady material ?in the possession 15 of any of its agents involved? in the prosecution. United States v. Price, 566 F.3d 900, 909 (9th 16 Cir. 2009). 17 B. Non-Federal Personnel Who Contribute to a Federal Case Are ?Government Agents.? 18 19 For purposes of discovery, government agent? includes non?federal personnel whose 20 work. contributes to a federal criminal ?case.?? Unit?edStates v. Fort, 472 F.3d 1 106, 1 1 13 (9th 2] Cir. 2007). An individual prosecutor remains responsible for the duty under Brady to learn of any 22 favorable evidence known to others acting on the government?s behalf in the case, including the 23 police. Kyles v. Whitley, 514 US. 419, 437 (1995). An responsibility to disclose Brady 24 material ?cannot be evaded by claiming lack of control over the ?les.? United States v. Jennings, 25 920 F.2d 1488, 1490 (9th Cir. 1992). Bowser, Barry: for Order for state officer ?les 000271 (278 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 33 0f 79 Case Document 29 Filed 05/29/15 Page 4 of 7 ?l Admittedly, the officers in this case were not deputized federal agents. Rather, the 2 government adopted this case from the law enforcement work begun by, among others?, KSCO 3 Deputies Kevin Austin and Jeremy Storar and BPD Officers J. Amos and E. Celedon. They were 4 allegedly ?ashed by a green laser, they responded to the defendant on the ground, and they took 5 statements from him. Thus, there is no dispute that these officers were the primary investigating 6 of?cers and that the government cannot make its case without calling the officers to testify. Thus, 7 they are agents whose work is Contributing to Mr. Bowser?s prosecution.12 8 C. Mr. Bowser?s Due Process Rights Under Brady Are at Stake. 9 The only evidence against Mr. Bowser is these of?cers? identification of him and their 10 reports and testimony of his alleged statements under questioning. Effective cross-examination of 11 the responding officers will be essential to Mr. Bowser?s defense. It follows that impeaching I2 evidence ofthe officers? prior incidents involving dishonesty or coercion is crucial to Mr. 13 Bowser?s defense. 14 The government adopted this case from the KCSO and BPD. It had to work with those 15 of?cers and county prosecutors to make the decision to bring the prosecution in federal court. It 16 will be working with those police departments to prepare for trial, including with the officer 17 witnesses. It is outrageous that the government can ignore its constitutional obligations under 118 Brady simply by stating that it does not have custody of those witnesses? personnel files. 19 If this Court denies this motion, it will encourage prosecutors to consider whether an 20 impeachable officer was part of the initial investigation when deciding whether to bring a 21 prosecution in state or federal court. if impeachment material against state officers is available, 22 prosecutors will simply bring the case in federal court where they will argue that that material is 23 not under their control. 26 This motion should be read to include any testifying of?cer, not only the ones named in the discovery received thus far. 27 2 Compare with the state officer in (.fniledStates v. Rivas-Felix, 2013 WL 1694449, DC. No. lZ?cr?340 28 who, the government maintained, acted only as an interpreter and would not be called as a substantive government witness. Bowser, Barry: for Order for state officer files 000272 (279 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page non~federal actors who have contributed to a federal case. The local police officers here were not Case Document 29 Filed 05/29/15 Page 5 of 7 Here, local law enforcement allegedly experienced the law violation themselves. They responded and investigated. They made contact with Mr. Bowser. They interrogated him at the scene and executed his arrest. They will be called to testify. And yet, because the United States Attorney?s of?ce decided to prosecute the case in federal court, thereby exposing Mr. Bowser to more severe penalties, the government claims those of?cers? personnel files are offlimits for a review of Brady/Giglio information. I The, defense understands that the government?s reliance on United States v. Dominguez- Villa, 954 F.2d 562 (9th Cir. 1992). In that case, from 1992, the Ninth Circuit held, after only one paragraph of analysis, that federal prosecutors have no obligation to turn materials not under its control, including state law enforcement officers? personnel files. Id. at 565?66. The defense submits that Dominguez? Villa is an outlier. The consistent holdings of cases following Brady, including Giglio, Price, Jennings, Fort, Kyles, and Ruiz, work in concert: a criminal defendant has a constitutional right to have access to exculpatory evidence, including impeachment evidence, upon request, and the prosecution has a duty to seek out such information, even from just part of the investigation, they were the investigation. The AUSA must rely on them to make their case. The evidence against Mr. Bowser will come from them, and their credibility, or lack thereof, is of paramount importance to his defense. it would be a perversion of Brady and its progeny to allow the government to try Mr. Bowser without seeking and disclosing the information the defense has requested in this case. D. The Defense is Entitled to Disclosure of Brady/Giglio Material ?Upon Request.? The Supreme Court and Ninth Circuit have made clear that the government is required to disclose Giglio and Rule 16 material ?upon request.? Brady, 373 US. at 87 (failure to disclose favorable evidence upon request violates due process); Ruiz, 536 .S. at 628 (citing Brady for proposition that due process requires disclosure ?upon request?); Price, 566 F.3d at 903 (defendant is entitled to Brady material, including impeachment material, pretrial); United States v. Doe, 705 F.3d 1134, 1150 (9th Cir. 20l 3) (upon request, government must disclose Rule 16 material that can be used to prepare for trial, including impeachment material). Brady material Bowser, Barry: for Order for state officer ?les 000273 (280 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 35 0f 79 Case Document 29 Filed 05/29/15 Page 6 of 7 1 includes exculpatory impeachment material. Giglio v. United States, 405 .S. 150, 154 (1972) 2 (when the reliability ofa given witness may well be determinative of guilt or innocence, evidence 3 affecting credibility is Brady material); see also Bagley, 473 US. at 676 (?Impeachment 4 evidence, however, as well as exculpatory evidence, falls within the Brady rule. . . . Such 5 evidence is ?evidence favorable to an accused? so that, if disclosed and used effectively, it may 6 make the difference between conviction and acquittal.? (citations omitted)); see also Aguilar v. 7 725 F.3d 970, 982 (9th Cir. 2013) as well as exculpatory, evidence 8 falls within Brady?s definition of evidence favorable to the accused?? (alteration in original) 9 (citation omitted)). 10 The government has not represented that it will produce Giglio material after its witnesses 11 testify. In any event, nothing in the Brady line of cases suggests that Brady/Giglio material in an 12 investigating officer?s personnel ?le should be withheld until after the witness has testi?ed, 13 particularly where the defense has speci?cally?requested such material. Additionally, if the 14 government intends to turn over impeaching material after its witnesses testify, then presumably 15 the government is able to overcome the custody and control issue. Trial begins in this case in four 16 weeks. To avoid any unnecessary delay at trial, the defense respectfully requests that this Court 17 order the government to produce the requested ?les now. 18 E. Pitchess is an nworkable Alternative in a Federal Prosecution. 19 Finally, the alternative the government suggested??that the defense ?le a Pitchess motion 20 in state court?~is unworkable and would result in a denial of due process. The government argues 21 that Mr. Bowser needs to ?le a Pitchess motion in state court to ensure Due Process in his federal 22 criminal proceeding. This is a federal prosecutionmthere is no mechanism for Mr. Bowser to ?le 23 anything in state court relating to this case. Moreover, such a procedure would require Mr. 24 Bowser, pursuant to California Evidence Code l043(b)( to establish good cause to be 25 entitled to review of personnel records for Brady material, a showing not required by the 26 Constitution to receive Brady material. Milka, 7l F.3d at 1003?04 (?The law requires the 27 presecution to produce Brady and Giglio material whether or not the defendant requests any such 28 evidence?); see also Hentlzorn, 931 F.2d at 31 (the government has a duty to examine personnel Bowscr, Barry: for Order for state officer ?les 000274 (281 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 36 0f 79 Case Document 29 Filed 05/29/15 Page 7 of 7 ?les upon a defendant?s request). Mr. Bowser is entitled to Due Process determinations and assurance of a fair trial by an Article Ill judge. See United States v. Raddatz, 447 .S. 667, 673 (l980). Conclusion The government concedes the information requested is Giglio material. The defense is entitled to Giglio and Rule 16 evidence upon request. The government?s contention that it not disclose the material upon a defendant?s request undermines Mr. Bowser?s right to due process, right to Rule 16 discovery, and right to a fair trial and is contrary to Supreme Court and Ninth Circuit precedent. Until this material is received and investigated, the defense cannot be ready for trial. Thus, the defense requests that this Court order the material be turned over, very least for an in camera review by this Court. DATED: May 29, 20l 5 HEATHER E. WILLIAMS Federal Defender By: Janet Bateman JANET BATEMAN ERIN SNIDER Assistant Federal Defenders Attorneys for Defendant BARRY LEE BOWSER, JR. Bowser, Barry: for Order for state of?cer ?les need at the 000275 (282 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 37 of 79 Case Decemth 28 Filed 05/28/15 Page 1 of 8 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 98721 Telephone: (559) 497-4000 Facsimile: (559) 497-4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, Plaintiff, V. BARRY LEE BOWSER, JR, Defendant. The United States, by and through its attorneys, BENJAMIN B. WAGNER, United States Attorney for the Eastern District of California, and KAREN A. ESCOBAR, Assistant US. Attorney, hereby moves for anorder denying Defendant request to the government on May 27, 2015, for review of the personnel files of state and local government witnesses in this case. FACTUAL BACKGROUND This case involves the lasing of a Kern County Sheriffs Office helicopter, which was investigated by Bakersfield Police officers. The defendant?s arrest was effected by a San CASE NO. 1115-CR-088 LJO-SKO GOVERNMENTS MOTION FOR ORDER DENYING INFORMAL REQUEST FOR REVIEW OF PERSONNEL FILES OF LAW ENFORCEMENT WITNESSES Date3 June 22, 2015 Time1 10300 a.m. Courtroomi Hon. Lawrence J. O?Neill 1 000276 (283 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 38 of 79 Case Document 28 Fiied 05/28/15 Page 2 of 8 1 Luis Obispo deputy following the defendant?s flight and on the basis of a federal arrest 2 warrant that issued with the underlying criminal complaint. I 3 A trial date was recently set for June 30, at the request of the defendant for a 4 speedy trial. 5 On May 27, defense counsel delivered a letter to the government making specific 6 discovery requests for the first time. One of the requests included a request for the 7 government to ?examine the personnel files or related files for all testifying federal, state, 8 and local government witnesses.? 9 The government has made the appropriate Hen/thorn request for the personnel files 10 of the testifying federal witnesses. 12 ARGUMENT 13 A. The Government Has Complied With Its Constitutional Obligations. 14 The Ninth Circuit?s position with respect to the disclosure of personnel files of 15 government employees was set forth in United States V. Henthorn, 981 F.2d 29 (9th Cir. 16 I 1991). In Henthorn, the Ninth Circuit stated3 17 [Tlhe [Glovernment has a duty to examine personnel files upon a defendantrequest for their production. Absent such an examination, it cannot 19 ordinarily determine whether it is obligated to turn over the files . . . . The obligation to examine the files arises by virtue of the, making of a demand for 20 their production. However, following that examination, the files neednot be furnished to the defendant or the court unless they contain information that material to the defendant 8 caseresponse to Henthor?, the US. Department of Justice developed a policy 25 2 26 27 28 000277 (284 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 39 0f 79 Case Document 28 Filed 05/28/15 Page 3 of 8 regarding the review of personnel files. This policy was explained and upheld in United 2 States V. Jennings, 960 F.2d 1488 (9th Cir. 1992): 3 Counsel for the [Glovernment informs us that the Department of Justice has 4 instituted a policy designed to implement the holding of Henthorn. Under this policy, the files of law enforcement officers are to be examined by the 5 appropriate agency?s attorney or his [or her] staff. The agency legal staff will notify the [Flederal prosecutor assigned to the case if any potential Brady 6 material is found, and the [Assistant United States Attorney (the 7 will then determine whether the information should be disclosed or whether an in camera review by the district court is appropriate. 8 9 Id. at 1492 n. 2. The Jennings court concluded that "[aldherence to this procedure would indicate that the AUSA is fulfilling his [or her], responsibility for ensuring [Glovernment compliance with Brady." Id. at 1492. The government has complied with the Department of ustice's Heat/20171 policy 14 concerning the personnel files of all government agents and all government employees 15 expected to testify at trial. The government is not required to do more. 16 17 B. The Government Does Not Have a Constitutional Duty to Produce State Personnel Files Not in its Custody or Control. 18 19 In United States V. 2018 WL 1694449, DC. No. 12-CR-34O AWI-BAM 20 (ED. Calif, April 18, 2013), US. Magistrate Judge Barbara A. McAuliffe denied the 21 defendant?s motion to compel the government to produce Gngz'o material from the 22 personnel records of a South Gate Police Department Officer. Relying on Dommguez- 23 Villa, the Court found that those records were not in the custody or control of the 24 government and, therefore, the government was under no obligation to produce them000278 (285 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 40 of 79 Case Document 28 Filed 05/28/15 Page 4 of 8 Court also noted that ?Defendant is not without a procedure to obtain the information he seeks.? Dominguez-Villa, 2018 WL 1694449, at On the defendant?s motion for reconsideration, Senior District Judge Anthony W. Ishii affirmed the Magistrate Judge?s decision. Um?tea? States V. DC. No. CR. 78. Likewise, in this case, the personnel records of the local law enforcement officers are not in the custody or control of the government. The defendant?s right to due process is not contingent upon the government providing him with any favorable information from the local police officer?s personnel files. The government believes due process would be served if the defendant made his own efforts to obtain any exculpatory information from the Kern County or San Luis Obispo County Sheriff or Bakersfield Police Departments. In other words, the defendant?s position is that he believes/suspects/speculates that helpful material may be contained in the local officers? personnel records but refuses to attempt to obtain that information through his own motion directed to the entity which controls the information. As Judge McAuliffe noted in her opinion in the case, California state law provides a well-recognized procedure for the defendant to obtain the information. Dominguez-Villa, 2018 WL 1694449, at C. The Defendant Has an Independent Process to Obtain State Personnel Files. As Magistrate Judge McAuliffe observed, the procedure for obtaining state personnel records is set forth in Pitchess V. Superior Court, 11 Cal.3d 531 (1974), and the California Evidence Code. 2013 WL 1694449, at California criminal defendants may compel discovery of police officers' personnel files by filing a Pitchess motion supported by affidavits showing good cause, materiality, and a reasonable belief that the agency has the information at issue. Id. In California, the disclosure of peace officer personnel records is governed by rules 000279 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 41 of 79 Case Document 28 Filed 05/28/15 Page 5 of 8 different from those for discovery of other information because, although ?evidence contained in a law enforcement officer?s personnel file may be relevant in a lawsuit, officer ?has a strong privacy interest in his or her personnel records and . . . such records should not be disclosed unnecessarily.? Haggerty V. Superior Court, 117 Cal.App.4th 1079, 1085, 12 Cal.Rptr.8d 467 (2004). To balance these competing interests, following the California Supreme Court's decision in Pi'tcbess V. Superior Court, 11 Cal.8d 581, 11 Cal.Rptr. 897, 522 P.2d 805 (1974), the California Legislature enacted a statutory scheme mandating certain procedures for discovery of peace officer personnel records. Calif. Code Sections 832.5, 882.7, 832.8; Calif. Evid. Code Sections 10481047; see also City of Santa Cruz v. Court, 49 Cal.8d 74, 93?94, 260 Cal.Rptr. 520, 776 P.2d 222 (1989) (?[iln enacting [the statutory scheme] the Legislature clearly intended to place specific limitations and procedural safeguards on the disclosure of peace officer personnel files which had not previously been found in judicial decisions?). California Penal Code Section 882.7, subdivision provides ?Peace officer or custodial officer personnel records and records maintained by any state or local agency pursuant to [Penal Code] Sectio 882.5 [governing citizen complaints against personnel in departments or agencies th employ peace officers], or information obtained from these records, are confidential and shall not be disclosed in any criminal or civil proceeding except by discovery pursuant to Sections 1048 and 1046 of the Evidence Code.? The government believes that both the defendant?s due process rights and the officers? privacy interests may be balanced in this case through a Pitchess type motion filed in this Court by the defendant employing the procedure set forth in Pi'tcliess and the California Evidence Code. California courts recognize that the Pi'tcbess scheme does not unconstitutionally trump a defendant?s right to exculpatory evidence under Brady because (286 of 324) [thatl 3 Penal at state 000280 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 42 of 79 Case Document 28 Filed 05/28/15 Page 6 of 8 the two schemes work in tandem. See, egg, People V. Gutzerrez, 112 Cal. App. 4th 1463, 147 3 (2003). More importantly, the Pz'tcbess procedure would comply with both Sup The Pj?tcbess preliminary requirement of good cause complies with Supreme Court precedent under Brady, as modified in V. Ritchie(19871 In V. Ritchie, the US. Supreme Court found a scheme similar to California?s Pz'tchess procedure to be constitutional. In that case, a defendant who was charged with molesting his thirteen-year-old daughter sought disclosure of reports compiled by the state protective services agency that had investigated the charges. The Supreme Court held that the defendant?s right to discover exculpatory evidence did not ?include the unsupervised authority to search through? the state?s files. V. Ritchie, 480 US. at 59. The Court found that both the defendant?s and the state?s interest could be protected by requiring that the files be submitted to the trial court for an 111 camera review, after a showing that the agency file contains material evidence. 10?. at 58 n. 15. The Ninth Circuit has similarly held that California's procedure complies with constitutional principles. Harrison V. Leaky/er, 316 F.3d 1068, 1066 (9th Cir.2003) (holding that the denial of Pitchess discovery does not violate due process if the defendant makes ?no showing that la police personnell file contained complaints material to his defense?). In light of the foregoing, reference to California?s Pi'tchess procedure is instructive and should be followed in the event the defendants? choose to file a P16012933 type motion. California Evidence Code Sections 1043 and 1046 set forth detailed procedures for discovery and disclosure, including the requirement that, ?[th initiate discovery, the (287 of 324) reme Court and Ninth Circuit precedent, as noted in Judge McAuliffe?s opinion. at 000281 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 43 of 79 Qase Document 28 Filed 05/28/15 Page 7 of 8 [party seeking discovery or disclosure] must file a motion supported by affidavits showing ?good cause for the discovery,? first by demonstrating the materiality of the information to the pending litigation, and second by ?stating upon reasonable belief that the police agency has the records or information at issue. 1043, subd. This .l [ill If two-part showing of good cause is a ?relatively low threshold for discovery.? [Citation the trial court finds good cause for the discovery, it reviews the pertinent documents in chambers and discloses only that information falling within the statutorily defined standards of relevance.? Warrz'ck V. Superior Court, 85 Cal.4th 1011, 1019, 29 Cal.Rptr.3d 2, 112 P.8d 2 (2005). In conducting an 1'11 camera review of a state police officer?s personnel file following a showing of good cause, a state court is required to exclude disclosure the following types of information3 (1.) Information consisting of complaints concerning conduct occurring more than five years before the event or transaction that is the subject of the litigatio aid of which discovery or disclosure-is sought; (2) The conclusions of any information investigating a complaint filed pursuant to Section 832.5 of the California Penal Code [governing citizen complaints against personnel in departments or agencies that employ peace officers]; or (3) Facts that are so remote as to make disclosure of little or no practical benefit. Calif. Penal Code Section 1045(b). If a California court determines that any records should be disclosed, it must that the records disclosed or discovered may not be used for any purpose other than court proceeding pursuant to applicable law.? Calif. Penal Code Section 1045(e). Further, upon motion of the governmental agency in possession of the personnel file(s), the Court ?order (288 of 324) from nin a 000282 26 27 28 (289 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 44 of 79 Case Document 28 Filed 05/28/15 Page 8 of 8 ?may make any order which justice requires to protect the officer or agency from unnecessary annoyance, embarrassment or oppression.? Calif. Penal Code Section 1045QD. CONCLUSION In light of the foregoing, the government respectfully requests that the Court deny the defendant?s request that the government examine the personnel or related files for all testifying state and local Witnesses. Datedi May 28, 2015 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney Karen Escobar KAREN A. ESCOBAR Assistant United States Attorney 000283 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 45 of 79 Case Document 26 Filed 05/27/15 Page 1 of 13 BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney 2500 Tulare Street, Suite 4401 Fresno, CA 93721 Telephone: (559) 4974000 Facsimile: (559) 497?4099 Attorneys for Plaintiff United States of America IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE NO. LJO-SKO Plaintiff, 0 UNITED TRIAL BRIEF v. BARRY LEE BOWSER, Date: June 30, 2015 Time: 8:30 am. Court: Hon. Lawrence J. O?Neill Defendant. I. STATUS OF THE CASE A. Trial is set for June 30, 2015. at 8:30 am. before the Honorable Lawrence .1. O?Neill, United States District Judge. B. Estimated time for the government's case-in~chief is approximately two days. C. Trial by jury has not been waived. D. Defendant Bowser was detained pretrial as a ?ight risk and. danger to the community. E. Absent stipulations, the government expects to call approximately eight to ten witnesses in its case-in-chief. F. The Indictment contains a single count. G. Defense counsel has not indicated that they plan to present any affirmative defenses, UNITED TRIAL BRIEF I (290 of 324) 000284 (291 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 46 of 79 Case Document 26 Filed 05/27/15 Page 2 of 13 including, but not limited to, a notice of an insanity or mental incapacity defense. See, Fed. R. Evid. 12.2. Consequently, the government would object to any such evidence. II. THE INDICTMENT The sole count ofthe Indictment charges the defendant with violating 18 U.S.C. 39A (aiming the beam of a laser pointer at an aircraft or its flight path). 111. STATEMENT OF FACTS The government intends to prove at trial the following facts, among others. On September 12, 2014, while providing air support to ground units responding to a man armed with a gun, a Kern County Sherist Office (KCSO) helicopter, Air-1 was struck at the 9:00 o?clock position two times by a powerful green laser from a distance of about 1/8 mile. The aircraft was ?ying at about 401 to 500 feet above ground level (AOL). The laser beam caused visual interference of the pilot, who experienced flash blindness and discomfort and pain that lasted several hours. The beam of the laser appeared to track the helicopter. The officers pinpointed the source of the laser to a commercial business and motorhome surrounded by a chain link fence lined with razor wire. They saw an individual later identi?ed as Bowser make an exchange with the driver of an SUV parked outside of the fence gate. When ground units arrived, the of?cers called out to anyone on the property to respond to the gate. Bowser stepped out of the motorhome, walked to the gate, and unlocked it. He was the same individual the airmen had seen shining the laser at them. During his contact with the officers, Bowser admitted that he had just placed new batteries in the laser and was testing its capabilities. When the police asked for the laser, Bowser said he had just given the laser to a friend named Todd who had driven away in an SUV moments before the police arrived. On October 16, the FBI later obtained a federal search warrant to search the motorhome. However, the motorhome was no longer there. On October 26, officers located the motorhome at l. 428 Pearl Street, a residential property, in Bakers?eld and searched it, pursuant to the warrant. The laser was not recovered. It appeared that UNITED TRIAL BRIEF 2 000285 (292 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 47 of 79 Case Document 26 Fiied 05/27/15 Page 3 of 13 someone had cleared the vehicle ofall personal items. The Pearl Street property owner indicated that Bowser had previously dropped the motorhome off at the house of a friend, Danny Gibson, who had driven the motorhome to the Pearl Street location to be cleaned. Gibson responded to the Pearl Street location and indicated that he was the owner of the motorhome. He stated that he had loaned it to Bowser, who was homeless. Gibson worked at the commercial property and had asked Bowser to serve as a security guard there. Parenthetically, while Bowser resided there, theft rates increased. Gibson also stated that he had purchased several green lasers from an online store for about $20 and had given one to Bowser. Gibson indicated that he had thrown away the lasers that he had kept for himself after they stopped working, but Bowser still had his. Gibson said that Bowser had told him that he had aimed the laser at the helicopter several times. Gibson further stated that Bowser had told him that he was leaving California, because he was ?getting into too much trouble with law enforcement and would be prosecuted soon.? Gibson indicated that Bowser had a girlfriend from Arkansas and thought Bowser might go there to live with her. At the end of last year, the FBI obtained a sealed complaint and arrest warrant for Bowser. Bowser was arrested at I am. on March 17, 2015, in San Luis Obispo (SLO) where a SLO County deputy found Bowser sleeping on the side ofa road, in violation of California law. He was in a U'Haul with Arkansas plates. The SLO deputy discovered the warrant that issued in connection with the underlying complaint when he ran Bowser?s information. The deputy advised Bowser of the outstanding warrant, arrested him, and transported him to SLO County Jail where he was held pending notification and arrivai Bowser was released to the custody the next day. Upon advice and waiver of his Miranda rights, Bowser indicated that he was aware that he was under arrest for shining a laser at an aircraft, and agreed to make a statement, which was recorded.1 He said he was shining the laser at a radio tower and, I The government does not intend to introduce the recording into evidence at trial. The quality is poor and contains statements about unrelated thefts, drug trafficking, and firearms. UNITED TRIAL BRIEF 3 000286 (293 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 48 of 79 Case Document 26 Filed 05/27/15 Page 4 of 13 when he turned, suddenly a helicopter was there. He also said that he lied to the police when he told them he had handed off the laser to his friend in the SUV. Instead, he indicated that he kept the laser and took it to Arkansas where he ?mutilated? it. He said he left California, because he was afraid of getting into legal problems. He returned to California, because he did not believe there were any outstanding warrants. IV. LEGAL AND EVIDENTIARY ISSUES A. Elements of the Charged Offense The defendant is charged in the sole count of the Indictment, aiming the beam of a laser pointer at an aircraft or its flight path. 18 U.S.C. 39A. 18 U.S.C. 39A provides: Whoever knowingly aims the beam ofa laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the ?ight path of such an aircraft, shall be ?ned under this title or imprisoned not more than 5 years, or both. 18 U.S.C. 39A. To convict on this charge, the government must show beyond a reasonable doubt that: (I) The defendant knowingly aimed the beam of a laser pointer at an aircraft or at the flight path of an aircraft; and (2) The aircraft was in the special aircraftjurisdiction of the United States. In proving a violation of Section 39A, the government is not required to show that the defendants knew it was a violation of law to knowingly aim a laser pointer at an aircraft. Ignorance ofthe law is no defense to a violation of law. A defendant is not required to know that his conduct is illegal as a predicate to being convicted for that conduct. United States v. de Cruz, 82 F.3d 856, 867 (9th Cir. 1996). In construing the meaning of aiming in the context of Section 39A, the Court should ?rst determine whether the language at issue has a plain and unambiguous meaning. The Supreme Court has ?stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.? Conn. Nat"! Bank v. Germain, 503 US. 249, 253?54 (1992). ?When the words ofa statute are unambiguous, then, this first canon is also the last: ?judicial inquiry is UNITED TRIAL BRIEF 4 000287 23 24 25 26 27 28 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 49 of 79 Case Document 26 Filed 05/27/15 Page 5 of 13 complete.? Id. at 254 (quoting Rubin v. UniledStafeS, 449 US. 424, 430, (1981)). ?in ascertaining the plain meaning of the statute, the court must look to the particular statutory language at issue, as well as the language and design of the statute as a Whole.? Sullivan 12. Stroop, 496 US. 478, 482 (1990) (quoting KMart Corp. v. Cartier, Inc., 486 US. 281, 291?92 (1988) (internal marks omitted)). To get at the thought or meaning expressed in a statute, a contract, or a constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement in which the framers of the instrument have placed them. if the words convey a de?nite meaning, which involves no absurdity, nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the legislature have the right to add to it or take from it. So, also, where a law is expressed in plain and unambiguous terms, . . . the legislature should be intended to mean what they have plainly expressed, and consequently no room is left for construction. Lake County v. Rollins, 130 US. 662, 670?71 (1889) (citations omitted). In analyzing the statute at issue, the language is plain and unambiguous. The Oxford English Dictionary defines to aim as to point or direct?(a weapon or camera) at a target. si'u?ai in. The plain meaning of ?aims? suggests that it is simply enough to point the beam of a laser at an aircraft or its ?ight path. Congress could have used terms such as ?shine? or ?illuminate,? if it meant to imply that the beam must actually reach the aircraft. However, Congress chose not to use those words and, therefore, aiming the beam ofa laser pointer at an aircraft or its ?ight path is sufficient to convict. The term ?special aircraftjurisdiction of the United States? includes any civil aircraft of the United States, any aircraft of the armed forces of the United States, or another aircraft in the United States. 49 U.S.C. 46501(2). The term ?aircraft? means a civil, military, or public contrivance invented, used, or designed to navigate, or travel in the air. 18 U.S.C. 49 U.S.C. 40102(a)(6). B. Defendants? Statements As recounted above and in the government?s motion in limine, CR. 24, the defendant made statements to both law enforcement officers and civilians. The government will seek to admit all of the UNITED TRIAL BRIEF 5 (294 of 324) 000288 25 26 27' 28 (295 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 50 0f 79 Case Document 26 Filed 05/27/15 Page 6 of 13 defendants? statements, which are admissible at trial when offered by the government. A statement is not hearsay if the statement is offered against a party and is the party's own statement. Fed. R. Evid. United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000) (defendant's ?self?inculpatory statements, when offered by the government, are admissions by a party- opponent and are therefore not hearsay?). Further, a witness may testify to what he or she understood the declarant to mean with respect to a statement made by the declarant to the witness, so long as the witness?s understanding is rationally based on the witness's perception and is helpful to the jury's understanding. Fed. R. Evid. 701; United States 12. Brooks, 473 F.2d 817, 818 (9th Cir. 1973) (per curiam). introduction by the government of a defendant's statements, however, does not open the door for defendant to introduce any of his prior, 0ut?of~court statements. When offered by a defendant, such statements are hearsay. Fed. R. Evid. 801(c); Ortega, 203 F.3d at 682; United States v. Willis, 759 F.2d 1486, 1501 (l Cir. 1985) (for the defense to place prior out~of-court statements by defendant before the jury without subjecting defendant to cross?examination "is precisely what is forbidden by the hearsay rule"). C. Witness Testimony The government expects that the ?ight crew members of the victim aircraft will testify regarding the alleged laser incident, the operation and occupancy of the aircraft, their actions during the incident in question, their perceptions of the events, and their reactions thereto. The government also intends to call law enforcement officers who are expected to testify regarding their observations and interaction with the defendant following the incident, and the defendant?s? statements that day and at the time of his arrest on the complaint. Their testimony is critical to essential elements of the crime charged. D. Expert Testimony Federal Rule of Evidence 702 provides that: Testimony By Experts if a scienti?c, technical, or other specialized knowledge will assist the trier of fact to understand 6 000289 (296 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 51 of 79 Case Document 25 Filed 05/27/15 Page 7 of 13 the evidence or to determine a fact in issue, a witness quali?ed as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Fed.R.Evid. 702. A witness who is ?qualified as an expert by knowledge, skill, experience, training, or education? may present expert testimony if his or her ?specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.? Fed. R. Evid. 702; United States v. Espinosa, 827 F.2d 604, 612 (9th Cir. 1987). Dr. Leon McLin, a Senior Research Optometrist for the Air Force Research Laboratory, assigned to the 71 Human Performance Wing, who testified and qualified as an expert at trial in United States v. Rodriguez/Coleman, l:!3CRl 09 LJO,-will testify at trial in this case that: (1) In order for a laser beam to illuminate the cockpit the laser beam necessarily had to intersect the cockpit window, consistent with deliberate aiming of the cockpit; (2) The green laser illumination of a helicopter cockpit flying 40l to 500 feet above ground level and about 1/8 mile away at the 9:00 o?clock position to the helicopter from the source would be visible to the individual pointing the laser on the ground; (3) When a laser beam hits the exterior of an aircraft it reflects off of the aircraft and the ?return? of the laser beam makes it easier to track the aircraft; (4) The tracking of an aircraft and laser illumination of the cockpit are consistent with deliberative and purposeful, not random or accidental acts; (5) Laser pointers, particularly green laser pointers, are readily available over the internet; (6) The green wavelength is inherently several times brighter milliwatt for milliwatt compared to a red laser. A green laser would appear, depending on the wavelength, 4 to 30 times brighter than a red laser. (7) A green laser may appear as much as 35 times brighter than a red laser of equal power output; and (8) The wavelength of most green lasers (532 nm) is close to the eye?s peak sensitivity when UNITED TRIAL BRIEF 7 000290 (297 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 52 of 79 Case Document 26 Filed 05/27/15 Page 8 of 13 they are dark-adapted. Dr. McLin leads a vision science team conducting research on the visual and functional effects of lasers. He is also a scientific adviser for laser bioeffects research and reviews and provides consultation for laser incidents and accidents for the Department of Defense laser injury hotline. E. Present Sense Impressions of Pilots and Flight Of?cers The Federal Rules of Evidence provide an exception to the hearsay rule for statements "describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter." Fed. R. Evid. 803(1). This exception is known as the present sense impression exception. In this case, the government intends to offer the dispatch tape of the Air?l ?ight officers? simultaneous observations made by them while responding to the report of laser strikes. Such observations whether made by testifying agents or reported to them at the time they were witnessing them - are admissible under the present sense impression exception. See, United States v. Gil, 58 F.3d 1414, 1422 (9th Cir. 1995). F. Cross Examination and Impeachment With all witnesses, the scope of a cross-=examination is within the discretion of the trial court. Fed. R. Evid. 61 In general, ?[clross?examination should be limited to the subject matter ofthe direct examination and matters affecting the credibility ofthe witness? Id. As to the latter, on May 26, 2015, the government filed a notice of intention to impeach Bowser with his prior forgery and identity theft/fraud convictions, should he testify. The scope of cross?examination does not, of course, extend to matters that are irrelevant, or as to which the relevance is substantially outweighed by unfair prejudice. Fed. R. Evid. 402, 403. G. Character Witnesses The government anticipates that the defendant may call character witnesses to testify. As a general rule, character witnesses called by a defendant may not testify about Speci?c acts demonstrating a particular trait or other information acquired only by personal observation and interaction with the defendant; the witness must summarize the reputation or opinion ofthe defendant as known in the UNITED TRIAL BRIEF 8 000291 24 25 26 27 28 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 53 0f 79 Case Decument 26 Filed 05/27/15 Page 9 of 13 community. Fed. R. Evid. 405(a); United States v. Hedgcorth, 873 F.2d 1307, 1313 (9th Cir. 1989). On cross~examination ofa defendant's character witness, however, the government may inquire into speci?c instancesof defendant's past conduct relevant to the character trait at issue. Fed. R. Evid. 405(a). In particular, a defendant's character witnesses may be cross-examined about their knowledge of a defendant's past crimes, wrongful acts, and arrests. The only prerequisites are that there be a good faith basis that the incidents inquired about occurred and (2) that the incidents are relevant to the character trait at issue. United States v. McCoZlom, 664 F.2d 56, 58 (5th Cir. 1981),; United States 1). Bright, 588 F.2d 504, 51 l-lZ (5th Cir. 1979). H. Prior Offenses, Prior False Statements At the time the defendant struck Air?1 with a green laser, Bowser had an extensive criminal history consisting of numerous convictions. Although the government does not intend to offer in its case?in?chief evidence of Bowser's criminal history, the government will, as noted above, impeach Bowser's testimony if he elects to Under Rule 609(a) ofthe FederalRules of Evidence, a witness may be impeached with evidence of recent felonies (at the Court's discretion) or any crimes involving dishonesty or false statements. Additionally, the government may cross-examine any defense character witnesses regarding the defendant?s criminal history, including specific acts of past conduct. Speci?c instances of conduct ofa witness may, in the Court's discretion, be inquired into on cross-examination ofthe witness only ifthe conduct concerns his or her character for truthfulness or untruth?ilness. Fed. R. Evid. 608(b). In event, the ?bad acts? may not be proved by extrinsic evidence. Id. The defendant?s admitted false statements to the police may also be explored, pursuant to 608(1)), for the purpose of impeachment. 1. Evidence of Flight As indicated above, the defendant admitted that he ?ed to Arkansas to avoid prosecution and disposed of the evidence there. . 9 (298 of 324) testify. any Rule 000292 24 25 26 27 28 (299 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 54 of 79 Case Document 26' Filed 05/27/15 Page 10 of 13 Clearly, "[e]vidence of ?ight is generally admissible as evidence of consciousness of guilt." United States v. Guerrero, 756 F.2d 1342, 1347 (9th Cir. 1984). The government is also seeking a flight instruction. ?Flight instructions are valid only if there is evidence sufficient to support a chain of unbroken inferences from the defendant's behavior to the defendant's guilt of the crime charged.? United States v. Silverman, 861 F.2d 571, 581 (9th Cir. 1988). To meet this requirement, ?four inferences must be justified: (1) from the defendant's behavior to flight; (2) from flight to consciousness of guilt; (3) from consciousness of guilt to consciousness of guilt concerning the crime charged; and (4) from consciousness of guilt concerning the crime charged to actual guilt of the crime charged.? 1d. (internal quotation marks omitted). In determining whether these inferences are warranted, the Court must consider ?whether the defendant knew the police suspected him ofa particular crime? and ?whether the defendant ?ed immediately after the crime.? United States v. Dixon, 201 F.3d 1223, 1232 (9th Cir. 2000). ?However, this immediacy requirement generally only becomes important in those cases where the defendant does not know, or his knowledge is doubtful, about the charges and accusations made against him.? United States v. Hernandez-Miranda, 601 F.2d 1104, 1106 (9th Cir. 1979). Here, the evidence is suf?cient to support a ?ight instruction. J. Authentication, Identi?cation, and Chain of Custody Under Rule 901(a) of the Federal Rules of Evidence, ?[t]he requirement of authentication or identification as a condition precedent to admissibility is satis?ed by evidence sufficient to support a finding that the matter in question is what its proponent claims.? Fed. R. Evid. 901 The proponent of evidence need not establish a proper foundation through personal knowledge; a proper foundation "can rest on any manner permitted by Federal Rule of Evidence 901(b) or 902.? United States v, Pang, 362 F.3d 1 187, 1 193 (9th Cir. 2004); Alexander Dawson, Inc. v. NLRB, 586 F.2d 1300, 1302 (9th Cir 1978) (content of document and circumstances ofdiscovery sufficient for admissibility). Rule 901(a) UNITED TRIAL BRIEF 10 000293 (300 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 55 0f 79 Case Document 26 Filed 05/27/15 Page :11 of 13 only requires the government to make a prima facie showing of authenticity or identi?cation ?so that a reasonable juror could ?nd in favor of authenticity or identi?cation.? United States v. Chit Kong Yin, 935 F.2d 990, 996 (9th Cir. 1991); United States 17. Black, 767 F.2d 1334, 1342 (19th Cir. 1985). Once the government meets this burden, ?the credibility or probative? force of the evidence offered is, ultimately, an issue for the jury.? Black, 767 F.2d at 1342. To be admitted into evidence a physical exhibit must be in substantially the same condition as when the crime was committed. The Court may admit the evidence if there is ?a reasonable probability the article has not been changed in important respects.? United States v. Harrington, 923 F.2d 1371, 1374 (9th Cir. 1991). The government need not establish all links in the chain of custody of an item or call all persons who were in a position to come into contact with it. Reyes v. United States, 383 F.2d 734 (9th Cir. 1967). Alleged gaps in the chain of custody go to the weight of the evidence rather than to its admissibility. United States v. Je?erson, 714 F.2d 689, 696 (7th Cir. 1983). Further, in the absence of evidence of tampering, there is a presumption that public officers have properly discharged their of?cial duties; Harrington, 923 F.2d at 1374. K. Photographs and Audio Recordings Photographs, and other relevant items may be introduced. Under Rule 901 of the Federal Rules of Evidence, a witness familiar with a scene or object depicted in a photograph or recorded conversation may provide a suf?cient foundation for admissiOn of the photograph or audio recording by testifying that the photograph or audio recording fairly and accurately depicts the scene or the object at some relevant time. United States v. Brannon, 616 F.2d 413, 416 (9th Cir.), cert. denied sub nom. Cox v. United States, 447 US. 908 (1980); United States v. Albert. 595 F.2d 283, 290 (5th Cir.1979) (voice identi?cation by conversation participant proper). L. Summaries and Charts The government may introduce or use at trial several summaries and charts. The government may also use some of its charts and summaries during its opening statement, the presentation of its case UNITED TRIAL BRIEF 000294 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 56 0f 79 Case Document 26 Filed 05/27/15 Page 12 of13 in chief and/or during closing argument. These charts and summaries will substantially assist the understanding the government's proof in this case. It is well-established that the trial court in its discretion may allow the presentation of summary evidence to guide and assist thejury in understanding and judging the factual controversy. See Fed.R.Evid.-1006; United States v, Skalicky, 615 F.2d 1117, 1 120-1121 (5th Cir. 1980); United States v. Cooper, 464 F.2d 648, 656 (10th Cir. 1972). A foundation for the admission of each chart and summary will be laid through the testimony of various witnesses, who will testify that the charts and summaries accurately reflect information contained in documents already in or to be admitted into evidence. United States v. Lemz?re, 720 F.2d 1327, 1349 (DC. Cir. 1983); United States v. Pollack, 417 F.2d 240, 241 (5th Cir. 1969). M. Judicial Notice Pursuant to the doctrine ofjudicial notice and Rule 201 ofthe Federal Rules of Evidence, requested by a party, the Court must takejudicial notice of any undisputed facts which are either (1) generally known within the territorial jurisdiction of the trial court, or (2) capable of accurate and determination by resort to sources whose accuracy cannot reasonably be questioned. Fed.R.Evid. N. Stipulations The government has sought, but not yet obtained, stipulations to the admissibility of the defendant?s prior convictions. See Notice of Intention to Offer Evidence of Defendant?s Prior Forgery and Identity/Theft Convictions; C.R.25. O. Plea Negotiations The introduction of any evidence of, or reference to, plea negotiations in this action not admissible for any reason, pursuant to Rule 1 10?) of the Federal Rules of Criminal Procedure and 410 of the Federal Rules of Evidence. This admonishment was also contained and highlighted in the government?s plea offer to the defendant. The government has filed a motion in limine seeking the exclusion of plea negotiations. CR. 24. UNITED TRIAL BRIEF (301 of 324) jury in See if ready 201. Rule bold in 000295 (302 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 57 of 79 Case Document 26 Fiied 05/27/15 Page 13 of 18 P. Reciprocal Discovery The government has requested reciprocal discovery pursuant to Rules 16 and 26.2 of the Federal Rules of Criminal Procedure and Rule 440 of the Local Rules ofthe U.S. District Court for the Eastern District of California. To date, the defendant has not produced any reciprocal discovery. As of the filing of this trial brief, the defendant also has not disclosed any potential affirmative defenses to the government. The government expects to prove each and every element of the charge beyond a reasonable doubt. V. EXCLUSION OF WITNESSES AND CASE AGENT DESIGNATION The government will move for the exclusion of all but expert witnesses until their testimony has been completed, pursuant to Fed. R. Evid. 615. The government will further move that FBI Special Agent Erick Bach be designated as the case agent and be exempt from the exclusion order, pursuant to Fed. R. Evid. 615. See also United States v. Little, 753 F.2d 1420, 1441 (9th Cir. 1985). VI. CONCLUSION The government respectfully reserves the right to supplement this trial memorandum to address additional matters that may be raised before or during trial. Dated: June 22, 2015 Respectfully submitted, BENJAMIN B. WAGNER United States Attorney Karen A. Escobar KAREN A. ESCOBAR Assistant United States Attorney UNITED TRIAL BRIEF 13 000296 i?-Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 58 0f 79 Case Document 22 Filed 05/22/15 Page 1 of 3 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, CASE O. Plaintiff, PRETRIAL ORDER VS. BARRY LEE BOWSER, JR, Defendant. 1. Trial Date Trial is set for June 30, 2015 at 8:30 a.m. in Department 4 (LJO) of this Court before United States District Judge Lawrence J. O?Neill. 2. Further In Limine and Pretrial Motions The parties must contact the Court by emailing imunoz@caed.uscourts.gov to seek approval prior to filing further in limine or pretrial motions, Such email must identify the requested motion and need for this Court to resolve the issue. 3. Proposed Jury Voir Dire The parties, no later than June 22, 2015, shall ?le and serve proposed jury voir dire examination questions. 4t Witness Lists The parties, no later than June 22., 2015, shall ?le and serve their respective lists ofall. witnesses, including those which the parties may reasonably be expected to call as rebuttal witnesses. The parties shall make a good faith effort to include on their witness list only those witnesses they reasonably expect to call. (303 of 324) 000297 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 59 0f 79 Case Document 22 Filed 05/22/15 Page 2 of 3 5. Proposed Jury Instructions and Verdict The parties shall Serve their proposed jury instructions and verdict on one another no later than June 10, 2015. The parties shall conduct a conference to address their proposed jury instructions and. verdict no later than June 16, 2015. At the conference, the parties SHALL attempt to reach agreement on jury instructions and a verdict for use at trial. The parties shall ?le and serve all agreedwon jury instructions and verdict no later than June 22, 2015, and identify such as the agreed~on jury instructions and verdict. If and only if, the parties after genuine, reasonable and good faith effort cannot agree upon certain speci?c jury instructions and verdict, the parties shall ?le and serve their respective proposed (disputed) jury instructions and verdict no later than June 22, 2015, and identify such as the disputed jury instructions and verdict. All jury instructions and. verdict shall indicate the party submitting the instruction or verdict joint, Government?s or defendant?s), the number of the proposed instruction in sequence, a brief title for the instruction describing the subject matter, the complete text of the instruction, and the legal authority supporting the instruction. All proposed jury instructions and verdict described above (whether agreed or disputed) shall be e?mailed as a Word (preferable) or WordPerfect attachment to ljoorders@caed.uscourts. gov and lcoffman@caed.uscourts. gov no later than .1 une 22, 2015. Jury instructions will not be given unless they are so e?mailed to the Court. The Court will not accept a mere list of numbers of form instructions from the Ninth Circuit Model Jury Instructions, CALCRIM, or other instruction forms. The proposed jury instructions and verdict must. be in the form and sequence which the party desires to be read or given to the jury. All. blanks and bracketed portions to form jury instructions must be completed or omitted as appropriate. Ninth Circuit Model Jury Instructions SHALL be used where the subject of the instruction is covered by a model instruction. Otherwise CALCRIM or instructions SHALL be used where the subject of the instruction is covered by CALCRIM or CALJIC. All instructions shall be short, concise, understandable, and neutral and accurate statements of the 2 (304 of 324) 000298 AWN 11Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 60 0f 79 Case Document 22 Filed 05/22/15 Page 3 of 3 law. Argumentative or formula instructions will not be given and must not be submitted. The parties shall designate, by italics or underlining, any modi?cation of instructions from statutory or case authority, or any pattern instruction, such as the Ninth Circuit Model Jury Instructions, CALCRIM, CALJIC or any other source of pattern instructions, and must speci?cally state the modification made to the original form instruction and the legal authority supporting the modi?cation. No later than June 22, 2015, the parties may ?le and serve written objections to disputed jury instructions and verdict proposed by another party. All objections shall be in writing, set forth specifically the objectionable matter in the proposed instruction or verdict, and include a citation to legal authority explaining the grounds for the objection and why the instruction or verdict is improper. A concise argument concerning the instruction or verdict may be included. Where applicable, the objecting party shall submit an alternative proposed instruction or verdict covering the subject or issue of law. 6. Trial Exhibits The parties shall premark their respective exhibits and submit an original and two copies of their premarked exhibits to the clerk?s office no later than June 25, 2015. The parties also shall ?le and serve their respective exhibit lists no later than June 25, 2015. 7. Trial Briefs At their option, the parties may ?le and serve trial briefs no later than June 22, 2015. Failure to comply with all provisions of this order may be grounds for imposition of sanctions on counsel or parties who disobey or cause noncompliance with this order, SO ORDERED Dated: May 22, 2015 Lawrence J. O?Neill United States District Judge (305 of 324) 000299 (306 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 61 of 79 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA HON. LAWRENCE J. UNITED STATES OF AMERICA, 1215?Cr?088 LJO PTaTntiff, STATUS CDNFERENCE BARRY LEE BOWSER, VS. Defendant. Fresno, CaTTfornTa Monday, May 11, 2015 TRANSCRIPT OF PROCEEDINGS REPORTED BY: PEGGY J. CRAWFORD, Reporter 000300 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 62 of 79 (307 of 324) For the Government: For the Defendant: APPEARANCES OF COUNSEL: KAREN ESCOBAR Assistant 0.8. Attorney 2500 Tu1are Street, Rm. 4401 Fresno, Ca11forn1a 93721 FEDERAL OFFICE 2300 TuTare Street Suite 330 Fresno, CA 93721 BY: JANET BATEMAN ERIN SNIDER Assistant Federa1 Defenders 000801 .3 .5 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 63 0f 79 (308 of 324) Monday, May 11, 2015 Fresno, CaTifornia 8:41 a.m. THE COURT: Let's caTT the case of Barry Lee Bowser. Ms. Bateman and are you both representing? MS. BATEMAN: Yes. THE COURT: Your appearances, pTease. MS. BATEMAN: Janet Bateman and Erin Snider for Barry Bowser, who is present in court, in custody. MS. ESCOBAR: Karen Escobar for the United States. THE COURT: The reason I put this on caiendar sua sponte is because of a Tetter that I received that I forwarded on to defense counseT. Ms. Escobar, with your permission, I woqu Iike to, on the record, have defense counseT approach the sidebar, onTy defense counseT, because_I have a question. It may be an attorney~ciient issue. MS. ESCOBAR: Okay. (The foTTowing proceedings were had at the sidebar, to wit:) THE We are at sidebar with defense counsei and nobody eTse can hear. The reason I did this is because I am concerned that what he is teTTing me in the Tetter is that he doesn't want to waive the Speedy TriaT Act, and he didn't use those words, obvioust, but that's my concern. MS. BATEMAN: After speaking with him this morning 000302 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 64 of 79 (309 of 324) .10:30, and reading the Tetter, we share those concerns. It woqu be our request that we coqu take him downstairs for a TittTe bit Tonger, perhaps come back Tater today. THE COURT: That's fine. It is a quarter to 9:00. What do you want to do? MS. BATEMAN: I think the government is avaiTabTe at 10:30. If we can get him downstairs? THE COURT: That's fine. (The proceedings at the sidebar were concTuded.) THE COURT: Based on sidebar, counseT is asking for a TittTe extra time to meet with Mr. Bowser and come back at and I think that defense counseT government counseT has indicated you are avaiTabTe at that time? MS. ESCOBAR: Yes, your Honor. THE COURT: That's what we wiTT do. (The Court heard other matters.) THE COURT: Back to the Bowser case. CounseT, defense attorney, Mr. Bowser is present. 0 We had a very brief off?the?record discussion, kind of we fit it in the middTe of the case I was just taTking about, and my understanding is that Mr. Bowser wishes to invoke the Speedy TriaT Act. MS. BATEMAN: That's correct, your Honor. THE COURT: And that as a resuTt of that, to have a triaT date within the Speedy TriaT Act provisions, that we are 000303 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 65 0f 79 (310 of 324) Tooking at June Tuesday, June 30, for triaT; is that what we said? MS. BATEMAN: Yes, your Honor. MS. ESCOBAR: Yes, your Honor. THE COURT: And so everybody is okay with it? Mr. Bowser, do you have any questions? THE DEFENDANT: No, sir. THE COURT: That's what we wiTT do. We wiTT set this matter for June 30, and it wiTT be a sure go on June 30. MS. ESCOBAR: Your Honor, shaTT we set a triaT confirmation date? THE COURT: or not. If you We can, It's up to you. need one, we can. If you are not sure, then we don't need to set it and just Tet us know if you need it, and if you do, we W111 set it. MS. ESCOBAR: I woqu ask that. I woqu think there woqu be some I have a few in Timine motions. THE COURT: Okay. What date? MS. ESCOBAR: Is June 22nd okay, the week before? THE COURT: It's okay with me. It makes no difference to me. MS. BATEMAN: June 22nd is triai confirmation and hearing on any motions in Timine? That THE COURT: Do you want to set it for 10:00? way, you are not sitting around waiting. 000304 .A Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 66 0f 79 (311 of 324) MS. BATEMAN: Is there a date by which we shouid fi the motions? THE COURT: When is the soonest date you can fiie a motions? MS. ESCOBAR: We ooqu do it about May 26th. THE COURT: You okay with that on the defense side rtoo? MS. BATEMAN: I wouid request at Teast three weeks from today, your Honor, to fiTe motions in Timine. THE COURT: You are not giving yourseif much time oppose it you do that. MS. BATEMAN: So motions to be fiied the 26th, and then opposition two weeks after that? June 9, THE COURT: Is that what you woqu Tike? opposition? MS. BATEMAN: That's fine, your Honor. THE COURT: And then you want -- MS. ESCOBAR: Your Honor, weTT, the oniy probTem wi that, is that is smack?dab in the middTe of my annuaT Teave. THE COURT: When are you coming back? MS. ESCOBAR: I come back on the 15th. THE COURT: So the probTem is not when you fiTe; it is when you oppose. MS. ESCOBAR: It is that. I don't know. THE COURT: how about opposition no Tater Te ?y 0 th 000305 .4 (312 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 67 of 79 than MS. ESCOBAR: The 18th? THE COURT: June, on the 18th, I can stiTT do that, and hearing on Monday, June 22, at 10:00. Dated: MS. ESCOBAR: That's fine, your Honor. THE COURT: Ms. Bateman, are you fine? MS. BATEMAN: Yes, your Honor, I'm fine. date for motions, is that the 26th of May? THE COURT: ActuaTTy, how about the 29th? MS. ESCOBAR: Okay. May 29th. THE COURT: side of it because it is not as important based on when the opposition is due. MS. BATEMAN: Thank you. THE COURT: 'Everybody okay? MS. ESCOBAR: Yes, your Honor. MS. BATEMAN: Thank you, your Honor. (The proceedings were concTuded at 11:35 I, PEGGY J. CRAWFORD, OfficiaT Reporter, do hereby certify the foregoing transcript as true and correct. 14th of October, 2015 Peggy J. Crawford PEGGY J. CRAWFORD, RDR-CRR The first We wiTT give you a few extra days on this 000306 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 68 of 79 Case Document 7 Filed 03/17/15 Page 1 of I BENJAMIN B. WAGNER United States Attorney KAREN A. ESCOBAR Assistant United States Attorney 2500 Tulare St., Room 4401 Fresno, CA 93721 Telephone: (559) 497?4000 Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA UNITED STATES OF AMERICA, NO. JLT Plaintiff, ORDER v. I BARRY LEE BOWSER, JR., Defendant. For good cause shown, IT IS HEREBY ORDERED THAT: The complaint and arrest warrant in the above?captioned matter be unsealed. IT IS SO ORDERED. Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE Dated: March 17, 2015 (313 of 324) 000307 (3140f324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 69 0f 79 1.1- 9 A0 442 (Rev. 11/11) eaten UNITED STATES DISTRICT COURT for the 08/17/15 Eastern District of California CLERK, 0,3 D, United States of America EASTERN Di 1 8 URT BY 1 5?4an}000580LT - Barry Lee Bowser, .Jr. case NO, .m um ir?rET?f grit": Defendant EiEi; ?201mm?; 1' ARREST WARRANT To: Any authorized law enforcement of?cer YOU ARE COMMANDED to arrest and bring before a United States magistrate judge without unnecessary delay (name ofperson 10 be arrested) Barry Lee Bowser, Jr. who is accused of an offense or violation based on the following document ?led with the court: [3 Indictment Cl Superseding Indictment Information Cl Supersedng Information Complaint Cl Probation Violation Petition Supervised Release Violation Petition i3 Violation Notice Order of the Court This offense is brie?y described as follows: Aiming the beam of a laser pointer at an aircraft or its ?ight path, in violation of 18 U.S.C. Section 39A. Date: '0 ~Iss'iu'ng of?cer '5 signature City and state: Bakers?eld, California Jennifer U.S. Magistrate Judge Printed name and title Return This warrant was received on (date). 3i and the person was arrested on (date) ?3 7g at (any andstate) LR: 5? 5pc) . Date; 031/7118 51 Arresting officer ?5 signature SA Er: cK Printed name and title ?7oaa7? 000308 (315 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 70 of 79 2/29/14 Page 1 of 9 UNITED STATES DISTRICT COURT . for the Eastern District of California DEC 2 9 2011, CLERK, U.S. Disrmc United States of America EASTERWS 8" .RO v, CLERK Barry Lee Bowser, Jr. Case No. Defendant(s) CRIMINAL COMPLAINT I, the complainant in this case, state that the following is true to the best of my knowledge and belief. On or about the date(s) of September ?12, 2014 in the county of Kern in the Eastern District Of California the defendant(s) violated: Code Section 0??3n5e Description 18 U.S.C. 39A Aiming the beam of a laser pointer at an aircraft or its ?ight path. This criminal complaint is based on these facts: if Continued on the attached sheet. My Complainant ?s signature Erick T. Bach, FBI Special Aqent Printed name and title Sworn to before me and signed in my presence. Date: City and state: Bakers?eld, California Jennifer L. Thurston, .S. Magistrate Judge Primer; name and title 000309 (316 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 71 of 79 Case Document 1 Filed 12/29/14 Page 2 of 9 AFFIDAVIT IN SUPPORT OF CRIMINAL COMPLAINT AND ISSUANCE OF ARREST WARRANT I, Erick T. Bach, being ?rst duly sworn, hereby depose and state as follows: A. INTRODUCTION AND AGENT BACKGROUND 1. I am a Special Agent with the Federal Bureau of Investigation (FBI), and have been since August 2012. I am currently assigned to the Sacramento Division, Bakers?eld Resident Agency Joint Terrorism Task Force (JTTF). I am also the Airport Liaison Agent responsible for coordinating all laser strike incidents within Kern and Inyo Counties, along with all airport~related disaster response incidents. My training and experience has included courses addressing basic criminal law, federal court procedures, domestic and international terrorism and various investigative techniques. My responsibilities as a Special Agent with the Federal Bureau of Investigation include investigating crimes of domestic terrorism to include offenses involving crimes against transportation systems and interference with ?ight crews. 2. I have investigated crimes involving laser devices on three separate occasions. On February 27, 2013, I investigated a laser strike incident involving green and purple handheld laser devices aimed at a Kern County Sheriff?s Of?ce helicopter ?ying routine patrol in Bakers?eld, California.1 One adult subject was identi?ed, arrested and charged in this district of violating Title 18, United States Code, Sections 32(a)(8) and 39A, and 2. The subject was ultimately sentenced to 21 months in prison and a 3 year term of supervised release. 1All references to dates and times herein are to approximate dates and times. 000310 (317 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 72 of 79 Case Document 1 Filed 12/29/14 Page 3 of 9 3. On March 7, 2014, I investigated a laser strike incident involving a green handheld laser device aimed at a KCSO helicopter ?ying routine patrol in Bakers?eld, California. One adult subject was identi?ed, arrested and charged in this district of violating Title 18, United States Code, Section 39A. The case is set for a change of plea on January 20, 2015, before Senior US. District Judge Anthony W. Ishii. 4. On May 8, 2014, I investigated a laser strike incident involving a green handheld laser device aimed at a privately?owned Cessna aircraft conducting an approach for landing in Tehachapi, California. The subjects were identi?ed, arrested and interviewed with a full confession of the incident. The case was not pursued federally, in lieu of state prosecution for other serious crimes. 5. This affidavit is intended to show only that there is suf?cient probable cause to establish a violation of federal criminal law, as discussed herein, and to support the issuance of an arrest warrant. It does not set forth all of my knowledge about this matter. B. APPLICABLE LAW 6. Title 18, United States Code, Section 39A provides: Whoever knowingly aims the beam of a laser pointer at an aircraft in the special aircraft jurisdiction of the United States, or at the ?ight path of such an aircraft, shall be ?ned under this title or imprisoned not more than 5 years, or both. Special aircraft jurisdiction of the United States is de?ned under Title 49, United States Code, Section 46501(2), and includes the following aircraft in ?ight: a. A civil aircraft of the United States b. An aircraft of the United States Armed Forces; or c. Another aircraft in and outside the United States destined for the United States, 000311 (318 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 73 of 79 Case Document Filed 12/29/14 Page 4 of 9 7. I have learned the following from investigation, from interviews of contacts, Victims, potential witnesses and/or suspects, and my review of law enforcement reports prepared in this case, and from discussion of this case with assisting agents and/or of?cers. The purpose of this af?davit is to support a complaint charging BARRY LEE BOWSER Jr. with a violation of Title 18, United States Code, Section 39A. C. PROBABLE CAUSE 8. On September 12, 2014, at 12:25 am, a KCSO helicopter, Air-1, ?ying at an altitude of approximately 500 feet Above Ground Level (AGL), was providing support to ground units responding to a man armed with a gun when it was struck two times by a green laser. The ?rst strike lasted for a second and the second strike lasted for approximately three seconds. The second strike was held long enough for the pilot of Air-1 to visually spot the exact location of the source which was when the pilot spotted the subject standing in an open area. The pilot immediately executed a left, diving, turn toward the source to gain airspeed while closing the distance. The pilot ?ipped his Night Vision Goggles (NV G) down which made it easier to keep a Visual on the subject while he was still out in the open area. 9. The laser appeared to be tracking Air~1 which was approximately two miles south of Bakers?eld Meadows Field Airport (BFL) directly over State Route 99. The source of the laser beam was located at 3401 Sillect Avenue, Bakers?eld, California, approximately 1/8 mile away at a 9 o'clock position to Air-l. - 10. The Tactical Flight Of?cer (TFO) kept the subject illuminated with the helicopter's spotlight and continued observations until both the pilot and TFO lost sight of the 000312 (319 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 74 of 79 Case Document 1 Filed 12/29/14 Page 5 at 9 subject when he walked under a large, metal awning. The TFO used binoculars to obtain a good description of the subject during observation. 11. While the TFO, who was using binoculars, kept the subject under observation and the pilot kept the subject illuminated by the spotlight, the TFO witnessed the subject reach under a closed, locked, chain-link gate and receive a bowl with what appeared to have food in it from a person who was the driverof an SUV parked at the outside of the fence gate. After the exchange was completed, the driver entered the SUV and left moments later. The pilot and TFO were unable to determine for certain if the laser was handed to the driver of the SUV. 12. Air-1 personnel contacted Bakers?eld Police Department (BPD) dispatch and reported the incident and location of the source of the laser beam. As directed by Air-1 personnel, BPD of?cers immediately responded to the area, where a commercial business was located. The main gate to the closed business was locked with a chain and padlock. The top of the chain link fence was lined with razor wire. The of?cers called out to anyone on the property to respond to the gate and a man stepped out of a motorhome parked under a metal canopy on the property and walked to the gate. The man was identified as BARRY LEE BOWSER, JR. 13. While the officers spoke with BOWSER outside of the motorhome at the gate, the pilot and TFO of Air?1 were able to positively identify BOWSER as the same man who had shined the laser at the helicopter. The subject shining the laser had been visible with the naked standing in an open area of the closed business wearing distinctive white camou?age shorts and no shirt which matched clothing. 14. While the police of?cers were contacting BOWSER, Air-1 personnel advised the 000313 (320 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 75 of 79 Case Document 1 Filed 12/29/14 Page 8 of 9 of?cers that, prior to their arrival, the pilot of Air?1 had witnessed BOWSER make a hand-to- hand exchange with a driver of a brown SUV which ?ed their location in an unknown direction. 15. During his initial contact with the BPD of?cers, BOWSER admitted to the police of?cers that he was the person who had been aiming the beam of a green laser pointer at Air-1. BOWSER said he had just placed new batteries into the laser and was testing its capabilities. When the police of?cer asked for the laser, BOWSER replied that he had just given the laser to a friend named Todd who had driven away in an SUV moments before the police arrived. BOWSER could not provide any of Todd's contact information, address or additional identi?ers. i 16. The laser strikes disrupted the pilot's support mission and took his attention away from ?ying the aircraft. The pilot experienced ?ash blindness in his left which remained irritated for several hours after the incident. The irritation was described as similar to the sensation of having sand in the eye. 17. BOWSER was arrested by BPD and transported to KCSO Jail for violation of California Penal Code Section 247.5, discharging a laser at an aircraft. 18. State prosecution was declined in lieu of federal prosecution and BOWSER was released from the KCSO jail on September 12, 2014 at 8:43 pm. 19. On October 2, 3, and 9th, 2014, Special Agents (SA) of the FBI observed BOWSER at the same vacant property where BOWSER was initially arrested by BPD for aiming the laser at Air-1. The vacant property is owned by Acoustical Material Service (AMS). It appeared presence on the property may be to provide on-site security. On the above? mentioned dates, agents observed BOWSER entering and exiting the motorhome throughout the day and, at approximately 8:50 am on those days, BOWSER would emerge from the motorhome 5 000314 (321 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 76 of 79 Case Document 1 Filed 12/29/14 Page 7 of 9 and unlock the main gate to allow various contractors into the property to work within the main building structure. 20. On October 16, 2014, a search warrant, authorized by US. Magistrate Jennifer L. Thurston of the Eastern District of California, issued for the motorhome, described as a 1977 Class Motorhome, California license 01 SRRL, white with ?ame pattern lines on hood. 21. On October 17, 2014, an attempt to execute the search warrant was made at the above?mentioned property; however, the motorhome previously observed was no longer on the property. BPD issued a Be On the Lookout (BOLO) in an attempt to locate the motorhome. 22. On October 26, 2014, at 8:00 pm, BPD of?cers located the motorhome at 1428 Pearl Street, Bakers?eld, California. A search was executed at that location at 9:00 p.m. During the search of the motorhome, it was evident that someone had cleaned out the vehicle, since all personal items had been removed. No items contained within the search warrant were located and seized. 23. The resident of 1428 Pearl Street, where the search was conducted, reported that BOWSER had dropped the motorhome off at a friend?s house belonging to DANNY GIBSON. GIBSON then brought the motorhome to 1428 Pearl Street to be cleaned. 24. At approximately 9:30 pm, GIBSON arrived at 1428 Pearl Street after being called by the residents of the search location. GIBSON said that the motorhome belonged to him and he had loaned it to BOWSER who was homeless. GIBSON worked for AMS and gave BOWSER the key to the gate and asked him to live on the property in order to prevent theft from the property which had been a recent problem. GIBSON reported that since BOWSER was on the property, theft rates had actually increased. 000315 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 77 of 79 Case Document 1 Filed 12/29/14 Page 8 of 9 25. GIBSON also reported that about a year ago he had purchased several green lasers from an online store for approximately $20. He had given one to BOWSER and kept one for himself. GIBSON indicated that he threw his laser away after it stopped working. GIBSON reported that BOWSER still had the same laser that was given to him. I 26. GIBSON stated that he had a conversation with BOWSER about the laser incident with the helicopter and BOWSER admitted to GIBSON that he had aimed the laser at the helicopter several times. 27. According to GIBSON, BOWSER said that he was leaving the state of California, because he was ?getting into too much trouble with law enforcement and would be prosecuted soon.? According to GIBSON, BOWSER had a girlfriend, who would be traveling with BOWSER to the state of Arkansas Where the girlfriend had a residence owned by a friend. BOWSER and the girlfriend would live there once they arrived. (322 of 324) 000316 Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 78 of 79 Case Document 1 Filed 12/29/14 Page 9 of 9 D. CONCLUSION 28. Based on the foregoing, I respectfully submit there is probable cause to believe that BARRY LEE BOWSER, Jr., did knowingly aim the beam of a laser pointer at an aircraft or its ?ight path, in violation of Title 18, United States Code, Section 39A. Your affiant swears under penalty of perjury that the facts presented are true and accurate to the best of my knowledge. ERICK T. Special Agent Federal Bureau of Investigation SWORN TO BEFORE ME, AND UBSCRIBED IN MY PRESENCE THIS 24 DAY OF DECEMBER, 2014. IF . URSTON .S. Magis rate Judge Reviewed and Approved as to Form this 19th Day of December, 2014 Karen A. Escobar KAREN A. ESCOBAR Assistant US. Attorney (323 of 324) 000317 (324 of 324) Case: 15-10486, 02/05/2016, ID: 9856882, DktEntry: 16-2, Page 79 of 79 CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellant CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on February 5, 2016. I certify that all participants in the case are registered CM/ECFF users and that service will be accomplished by the appellate CM/ECF system. DATE: February 5, 2016 /s/ Monica Garza Monica Garza