Free Transcript - District Court of Arizona - Arizona

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA _________________ ) ) Plaintiff, ) ) vs. ) ) JOHN DAVID JOHNSON WHITE, ) ) Defendant. ) ) ______________________________) UNITED STATES OF AMERICA, BEFORE:

CR 06-1073-PHX-FJM CR 03-0550-PHX-FJM Phoenix, Arizona November 8, 2007 9:00 a.m.

THE HONORABLE FREDERICK J. MARTONE, JUDGE

REPORTER'S EXCERPTED TRANSCRIPT OF PROCEEDINGS JURY TRIAL TESTIMONY

APPEARANCES: For the Government: U.S. Attorney's Office By: MICHAEL ALLEN LEE, ESQ. 40 North Central Avenue, Suite 1200 Phoenix, AZ 85004 For the Defendant White: Law Office of Robert J. Kavanagh By: ROBERT J. KAVANAGH, ESQ. 51 West Elliott Road, Suite 109 Tempe, AZ 85284 Official Court Reporter: Linda Schroeder, RDR, CRR Sandra Day O'Connor U.S. Courthouse, Suite 312 401 West Washington Street, Spc. 32 Phoenix, Arizona 85003-2151 (602) 322-7249 Proceedings Reported by Stenographic Court Reporter Transcript Prepared by Computer-Aided Transcription

Case 2:03-cr-00550-FJM

Document 172

Filed 05/01/2008

Page 1 of 149

2 1 2
SUMMARY OF COURT PROCEEDINGS PAGE: 3

INDEX

3
Proceedings Outside the Presence of the Jury

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 2 of 149
EXHIBIT NO.: INDEX OF EXHIBITS DESCRIPTION: ID'D: RECEIVED: WITNESSES FOR THE GOVERNMENT: INDEX OF WITNESSES Direct Cross Redirect

HERNANDEZ, Rafael SANDER, Patrick Sean WITNESSES FOR THE
DEFENDANT:

126 139
Direct

131 144
Cross

138 147
Redirect

BRITNELL, Anthony W. BOWEN, Nicholas WHITE, John David

10 17 63

13 35 105

15 58 122

109 126A 126B 126C 126D

Copy of MVD Title to 1996 Dodge Ram Van 92 Photograph of Defendant 101 Photograph of Defendant 101 Photograph of Defendant 101 Photograph of Defendant 101

99 101 101 101 101

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 (Proceedings outside the presence of the jury:) THE COURT: Counsel, by now the clerk should have

given you a set of the proposed jury instructions, so be sure to take a look at them before we deliver them to make sure that they're correct and they are what we said they would be and that they're in the right order. Okay?

If I don't hear from you, I'll assume they're fine. The clerk also told me, Mr. Lee, that you had an issue that you wanted to discuss before we brought the jury in? MR. LEE: Yes, Your Honor. There were two items of I've spoken with defense

evidence that we were concerned with.

counsel, and he is not intending to utilize one of these items which was Defense Exhibit 108. with that at this time. The issue that we have is Defendant's Exhibit 110. When we started trial here, Your Honor, we handed the Court a notebook that you have as well as defense counsel. the same notebook containing our exhibit list. They got Therefore, we have no issue

We did not

receive an exhibit list and therefore did not know about Defense Exhibit 110. Apparently Defense Exhibit 110 is a video taken sometime in September and October of this year of the Blaze Nightclub area sometime either at night and as well as during the day. I had a hard time looking at it. I only received it

after court last night, had a hard time getting to it. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 3 of 149

4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Apparently there is some audio files in there, as well, that I could not access. The video itself is choppy. speed to slow speed. to my agents. It moves from regular

I haven't had an opportunity to show it

More importantly, back in January of 2007, we

sent out a reciprocal discovery notice with our original discovery. this video. This is the first time we've seen or heard about It is irrelevant under 401 as it does not tend to It is

demonstrate what was occurring back on April 16th, 2006.

completely -- It is extremely late disclosure, and it's 403 cumulative because we already have the maps. diagram. We have the map here. We have the

We have the other witness --

the satellite photos that the witnesses have testified to. Apparently it shows some scene from when it's late at night and you can't hardly see anything with some street lights that are out. dark. The witnesses themselves have indicated it was The

They can't remember if lights were on or off.

officers testified that in his report he indicated the lights were on. As such we believe this is simply a manufacturing of evidence that is not relevant to what happened a year and a half ago after this was -- after this was taken. THE COURT: All right. Thank you. Mr. Kavanagh.

MR. KAVANAGH:

Judge, I looked through my file that I

got from the other attorney, and I didn't see a letter from the UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 4 of 149

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem. day. government. letter. But he's right. I gave him some exhibits the first And I don't think I missed it, but I did not see a

I thought I gave him my list, which I gave to the clerk

as well, and he says I didn't, so I guess I didn't. Judge, the videotape is simply a tape of the scene on September 26, 2007. Present was a witness, Nicholas Bowen, who And Nick would testify that

was also present April 15th, 2006.

the lighting conditions and the scene that evening that we were out there was substantially the same as it was on the 15th of April, 2006. Admittedly the video is not the best in the world. The investigator shot it. But for the important parts, I think

it does show the scene that's important in this case. It's hard to shoot at nighttime, so that's part of the And then the investigator went back a few days later

and did a daytime just for clarity. THE COURT: The foundation for this, who took the

video or who's going to -- What witness are you going to use for this video? MR. KAVANAGH: Well, the private investigator would He will testify that he took

testify that -- He's out there. some measurements as well.

He would testify that he went out

there with me on that evening, September 26, I believe it was, 2007, and did this. Certainly --

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 5 of 149

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clerk? MR. KAVANAGH: THE COURT: Yes, Your Honor. to him? MR. KAVANAGH: it to him. Well, I, frankly, I -- I forgot to give I THE COURT: And it was taken what day? September 26, 2007.

MR. KAVANAGH: THE COURT: MR. LEE:

And when did you give it to Mr. Lee?

October 4th. And later for the daytime.

MR. KAVANAGH: Yesterday. THE COURT:

What accounted for the delay in giving it

The first day I gave him a stack of exhibits.

didn't prepare a nice notebook for him like he did for me, and that was my fault. me. I didn't expect that he would do that for

But I thought I gave him my list of witness or -- of

exhibits. THE COURT: Is 110 on the list that you gave to the

And what's its description? Video of crime scene.

MR. KAVANAGH: THE COURT: Mr. Lee as well? MR. KAVANAGH:

And did you give a copy of that list to

Well, I -- I thought I did. I thought I did.

I'm pretty But he says

sure I gave him my witness list. I didn't.

So I can't specifically say yeah, I gave it to him.

I don't remember seeing it in my hand. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 6 of 149

7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THE COURT: There was some evidence in this case that Was there some evidence of that in

this nightclub is closed. this case? MR. LEE:

Officer Gagnon testified that when he was

asked as to how many officers work off-duty there, he said it started at two, it ended with seven, until the nightclub itself closed. THE COURT: MR. LEE: Do we know when it closed?

He thought it closed sometime -- what was But, again,

it? -- somewhere around the beginning of the year.

we didn't send anyone out at nighttime to see whether it's open or closed or not at this juncture. THE COURT: Is there any foundation as to what night

of the week this tape was taken and whether that club was open or closed? MR. KAVANAGH: Your Honor, it was definitely closed. There's no

The club was closed when this video was taken. doubt about that.

The video certainly shows the whole thing. But the important part is the

It kind of pans it and so forth.

Big & Tall parking lot that shows -- And that was closed then. And it shows the condition of that parking lot. So there's no cars or anything like that. concern is the light post. But our

There is a street light on 27th And there's

Drive that's depicted on this diagram over here.

also a parking lot light for the Big & Tall store that's also UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 7 of 149

8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 110? MR. KAVANAGH: THE COURT: Yes, Your Honor. depicted on Exhibit 9. And those two lights were out when we were out there, and Nick Bowen and probably anybody -- Well, the testimony has been it was dark. Nick Bowen would testify that that's the And I think Mr. White would

same condition it was then.

testify, as well, those lights were not working that night, April 15th, 2006. So that's the importance of the videotape. And it is difficult to see out there. All right. We're going to -- It's Exhibit

And it's nighttime. THE COURT:

We're going to exclude 110 for two One, we think that if the

separate and independent reasons.

tape was made in September, it should have been disclosed to the government before that so the government could have confronted that evidence with its own witnesses in its case in chief and also given that evidence to any expert that it wanted to call or any investigator that it wanted to call as well or to reproduce its own video and so forth. And, secondly, we would exclude it under 403, because whatever probative value it has is pretty slim compared to all the other evidence that we've already received and we will continue to receive in connection with what the witnesses saw and observed who were there on the night in question rather than what it looks like a year and a half later after the UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 8 of 149

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ask. nightclub is closed. I would think that after the nightclub is closed may have affected quite a bit of what the activity would be on that corner at night. So, Kerry, let's get the jury. MR. LEE: Your Honor, can I just -- We would ask

also -- We don't want the jury to have something hanging out there in front of them. We put in the booking sheet. It

listed the defendant's on probation.

Similarly, we would not We would ask that

want to have a similar situation with this.

the witness -- that both witnesses, Mr. Bowen as well as the private investigator, not reference that a videotape was made, because it will let them believe that -- the jury believe it has not seen something that it should have seen. THE COURT: Well, I trust in Mr. Kavanagh's He's not going to ask them any

professional responsibility.

questions about a video that's been excluded. MR. LEE: I'm sorry. I was not intimating that I just

Mr. Kavanagh would necessarily make a question of that.

would like the witnesses to be informed that they should not mention that. THE COURT: Well, Mr. Kavanagh, it's a fair thing to

Maybe before you call your witnesses, tell them that the

tape isn't coming in, and they shouldn't mention it. MR. KAVANAGH: Yes, Your Honor. I'll do that.

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 9 of 149

10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. KAVANAGH:

THE COURT:

Then let's get the jury.

(The jury returned to the courtroom.)

THE COURT: have a chair.

Welcome back, members of the jury.

Please

I'm sorry for the delay, but we had a legal

issue that we had to resolve, and it's been resolved, and we're ready to resume. Mr. Kavanagh. MR. KAVANAGH: Mr. Anthony Britnell. THE CLERK: If you could state your name and spell Thank you, Your Honor. I would call

your last name please. THE WITNESS: It's Anthony Wayne Britnell, and the

last name is B-r-i-t-n-e-l-l.
ANTHONY WAYNE BRITNELL, DEFENDANT'S WITNESS, SWORN DIRECT EXAMINATION

Q A Q A

Good morning. Good morning. Would you introduce yourself, sir, to the jury. Again, my name is Anthony Wayne Britnell, and currently I

am an independent private investigator. Q A Q What type of investigations do you do? Criminal defense work. Do you do anything else, any kind of employment,

preemployment screening? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 10 of 149

BRITNELL - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Yes, I do. Who do you do that for?

11

Several of the valley agencies, the City of Buckeye, City

of Goodyear, City of Avondale, City of El Mirage. Q A Q A Q A Q A Q A Is this your second career? Yes, it is. What was your first career? I was a police officer with the City of Phoenix. When did you retire? 2001. What rank? Sergeant. What assignments did you have as a police officer? Started off in patrol like everybody else. I worked night walking beat. I worked I worked the

communications.

street crimes unit.

It's an undercover position where we make

narcotics purchases and stolen property, those type of cases. I had numerous temporary assignments to various, you know, bureaus within the police department. Q A Q A Q So some points in your career you were a detective? Yes, I was a detective also. And you've had the opportunity to investigate crime scenes? Yes, I have. Did you do any work on this case reference crime scene

investigation? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 11 of 149

BRITNELL - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Q A Q Yes, I did.

12

Did you go to the area of the Blaze Nightclub on September

26, 2007, to investigate that scene? A Q A Q Yes, I did. And did you take some measurements? Yes, I did. Can you describe -- Well, let me back up. Exhibit 9, do you see that over there? closer if the Judge let's me. THE COURT: Sure, of course. Can you see that? I can bring it

(BY MR. KAVANAGH) Yes, I can.

Can the jury see it? That's not your diagram, is it? No, it's not. But that's a fair but crude representation of the scene? I would say so, yes. MR. KAVANAGH: THE COURT: Can I approach the easel, Your Honor?

Yes. There's an X marked right in front of

(BY MR. KAVANAGH)

the club. A Q

Do you see that?

Yes, I do. Did you take a measurement -- this is coincidentally -- did

you take a measurement from that location to another location? A Yes, I did. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 12 of 149

BRITNELL - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. LEE:

13

Q

And according to this diagram, in the northwest corner of

this parking lot where it says vacant building, there's a van. Is that the approximate location where you measured from the front of the Blaze? A Q Yes, it was. And what was the distance from the X to the location of the

van? A Q A It was 237 feet. And can you break that down into yards, approximately? Without a calculator, it's, I would say, approximately 80

yards, almost the length of a football field. Q A Q You didn't interview anybody in this case? No, I did not. You simply went to the crime scene and took some

measurements? A Q A That's correct. At my direction? Yes, sir. MR. KAVANAGH: THE COURT: I have no further questions.

And Mr. Lee?
CROSS-EXAMINATION

Q

Sir, you made a measurement from approximately the front of

the club to a stall that was in -- near the Big & Tall area; is that correct? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 13 of 149

BRITNELL - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q Yes, sir, that's correct. Okay. And the places you were told to measure you were

14

told to measure by defense counsel, correct? A Q Yes, sir. From -- Did you measure from the front entrance of the club

or whereabouts, sir? A Well, in relation to your diagram, it would have been a

little bit to the north. Q A Q A So -One of the -More the corner of the building; is that correct? Just a little bit. Just a little bit north of there.

There's an area there where I was told that the officers normally stand from wherever the point I took my measurements. Q And your measurement, was it a straight distance that you

measured it, or was it a walking distance? A Q A Q A Q A Q in? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 14 of 149

It was a straight line distance. So as the bird -- as the crow flies? Yes, sir. And you did that using what type of instrument, sir? A Rolatape. And you just rolled it right over the wall that was here? That's correct. And which -- who told you which particular stall to put it

BRITNELL - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. KAVANAGH:

15

A Q

One of the witnesses involved in this case. And can you tell the jury which numbered stall it was at

the time? A No, sir, I cannot. The way he described it to us, it was

pretty much in line with some palm trees that are on the northwest corner of that vacant building there. Q A Q A Pretty much in line with some palm trees? Palm trees that are right next to it. Where this building was? Yes, sir. MR. LEE: All right. I have no further questions.

THE COURT:

Mr. Kavanagh? Judge, perhaps I can have Exhibit 123,

MR. KAVANAGH:

perhaps might help the jury to get a better idea on where exactly this was done.
REDIRECT EXAMINATION

Q

Actually let me show you what's already been admitted as Can you see that exhibit on the screen,

Exhibit 124. Mr. Britnell? A Q

Yes, I can. Do you see some palm trees in the diagram in the northwest

corner of the building with the blue roof? A Q Yes, I do. Is that the approximate location that was at least parallel UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 15 of 149

BRITNELL - REDIRECT

16

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

to where you measured? A Yes. In that picture, there's palm trees all along the

west side of that building ranging from the north to the south. It was described to me that it would have been the farthest north palm trees directly parallel from there. Q And so those palm trees that you just described are a

little bit south of the north edge of the building; is that correct? A Q That's correct. So if you look at Exhibit No. 9, the government's exhibit,

their van is actually slightly further north than where you measured; is that correct? A Q A Possibly just slightly. Okay. So we're close?

Yes, very close. MR. KAVANAGH: THE COURT: I have no further questions.

May we let him go? Yes, we may. You're

MR. KAVANAGH: THE COURT: excused. Mr. Kavanagh. MR. KAVANAGH: THE COURT:

Thank you very much for coming.

Call Mr. Nick Bowen.

If you could state your name and spell it

for the record please. THE WITNESS: Nicholas Bowen, N-i-c-h-o-l-a-s, last

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 16 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. KAVANAGH:

17

name B-o-w-e-n.
NICHOLAS BOWEN, DEFENDANT'S WITNESS, SWORN DIRECT EXAMINATION

Q A Q A Q A Q A Q A

Mr. Bowen, are you currently employed? Yes. Who do you work for? Bank of America. What do you do for them? On-line sales. On-line sales? Correct. And would you briefly explain your education level. I have a bachelor's degree from Arizona State University in I also have an

justice studies and African-American studies. AA from South Mountain Community College. Q A Q A Q A Q A Q Do you know John White? Yes. How do you know him?

I met him at South Mountain Community College. About how long ago? Approximately 2000. Did you guys become friends? Yes. I want to direct your attention to this case, April 14th, UNITED STATES DISTRICT COURT

Case 2:03-cr-00550-FJM

Document 172

Filed 05/01/2008

Page 17 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 2006. A Q A Q A What did you do that night?

18

That night we went to the Blaze Nightclub. Do you recall how you got there? I rode in a van with Corey. How did that happen? Well, basically Mrs. White -- It had been arranged earlier She was going to Food City, And that's where I

for Mrs. White to come pick me up.

and she would bring me back to her house. met Corey, and we drove up there. Q A Q A Q A Q

So you were at Mrs. White's house, and Corey showed up? Well, Corey was already there, but -Why didn't you drive? I have a suspended license. At that time you did? Correct. Do you recall about what time in the evening you met up

with Corey? A Q A Q A Q A Q It was around 8:30, 9:00, approximately, in that area. Was it already dark outside? Correct. What kind of vehicle was Corey driving? That night he drove a van. That's the van that's in question in this case? Correct. Do you know if Corey has a car? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 18 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q No, I don't. Can you describe that van briefly? It's a big, 18-passenger van, kind of grayish in color.

19

Do you recall whether or not anybody else went with you in

that van to the nightclub that night? A Q Nobody else. It was just me and Corey.

I want to direct your attention away from that right now

and talk about the handgun. A Q A Q A Q A Q A Q A Q A Q A Q A Okay. Do you own a handgun? Yes. Did you have one with you that night? Yes. What kind of handgun did you have? It was a 9mm pistol. I should say what kind of handgun did you have? Actually -- I don't have it anymore, but it was a 9mm. Did you say it was a Hi-Point? It was a Hi-Point. When did you acquire or get that 9mm? February, 2003. Why do you remember that? I testified against it before. So you've been through this before once? Correct. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 19 of 149

I missed that.

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Regarding that gun? That same gun. And that was two years before this thing happened? Correct.

20

Can you explain how you came into possession of that gun. One day I accompanied John to the Jewel Box where he was And I saw one there that was fairly So basically I inquired

going to pick up a gun. cheap.

I had extra money at the time.

about purchasing the gun.

The guy at the Jewel Box basically

said if you want to just put it on his ticket, that way it's quicker, you don't have to do any background checks or anything, then you can get it that way. makes sense to me, so -Q A Q A Q A Q A Q So that was between you and the clerk? Correct. Do you have any felony convictions? No, sir. Anything that might prohibit you from possessing a firearm? No, sir. The Jewel Box, is that a pawn shop? Correct. That 9mm, did you have it in your possession from the time So I just said it

you got it from the Jewel Box until the time the officer seized it that night? A Correct. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 20 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Honor? THE COURT: Yes. MR. KAVANAGH: Exhibit 1A? THE COURT: Yes. Excuse me. It's Exhibit 2.

21

Your Honor, if I can show the witness

MR. KAVANAGH: it was 1A.

I thought

It appears that it's safe.

Can I approach, Your

(BY MR. KAVANAGH)

I'm showing you Exhibit 2, Mr. Bowen.

Does that appear to be the same weapon that you purchased at the Jewel Box? A Q A Yes. How do you know? It's a Hi-Point, and it's a fairly cheap gun, casted iron.

It's 7968 on the serial number. Q A Q A it. Q Why did you carry a 9mm that night, April 16th, 15th, 14th, So the numbers match? Correct. It's got some red stuff on it, though, doesn't it? I don't know if that was rust or they sprayed something on

whatever, 2006? A That night actually -- Well, earlier in the year I had an

incident where me and a friend, I was dropping him back off, and he -- We were coming off of 3rd, the 3rd Street exit off of UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 21 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the 10 or the 17. I'm not sure which one it is.

22 And we -- at

that time some guys were chasing us, and basically we were in an attempted carjacking that led on to the morning, not with us personally, but these guys continued on to the morning with this carjacking spree. Q A So you were concerned about that happening again? Yeah. I just felt helpless, like I drove around in blocks

for about 20, 30 minutes before police finally met up with me. So I was helpless basically, dimmed the headlights waiting for help. Q Let me bring you back to the Blaze Nightclub. Why did you

go there that evening? A We were going there for a release party, a CD release And my main reason for going was one of our friends,

party.

Emmanuel Lee, he had joined the Navy, and I believe the last -he had been gone for about a year, year and a half. And the

last time that he came, his mom committed suicide, so it wasn't really a happy standing for us. So, you know, that kind of passed, so I just figured that would be a good place, you know, we can go hang out and have a good time. Q A Q A Did you see John White at the Blaze that evening? Yes, I did. Did you know he was going to be there? Yes. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 22 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q Q A Q A Q Did you also see other friends that you knew? Yes, I did. So it was kind of like a planned event? It was a planned event.

23

Do you recall about what time you arrived at the Blaze that

night? A Q A Q A At approximately 9:00, 9:30. And where was the van parked when you first got there? It was parked in front of Mrs. White's house. I'm sorry. I'm sorry. At the Blaze. At the Blaze, it was parked in front of the Big

& Tall. Q There's a diagram -If I can approach, Your Honor? THE COURT: Yes. Exhibit 9. Does that diagram accurately

(BY MR. KAVANAGH)

depict kind of the situation where the Blaze is in relation to the Big & Tall store? A Q Correct. On this diagram, Exhibit 9, it says vacant building. Is

that the Big & Tall store? A Q That's the Big & Tall store. And someone has drawn in where this van was parked facing Is that about where the van was parked? Is that pretty

east.

accurate? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 23 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Pretty accurate. After you and Corey got to the Blaze, what did you do? We went inside, and basically, you know, we were just

24

mingling for a little while.

And time passed, and time passed.

And I had had a long night before and just worked the whole day, so I kind of got tired, started nodding off. And while I

was nodding off in one of the booths, the guy told me I had to leave; I wasn't allowed to fall asleep in there, in the club. Q A Q A Q A Had you been drinking too? No. I hadn't had any drinks.

Nothing at all? Nothing. Do you drink alcohol? I do. At that time they just -- I just drunk a particular

kind of alcohol, and they don't have that. Q A Q A Q A Q A So your position is you were totally sober? Correct. Just tired? Just tired. Did you take that 9mm into the bar? No, I didn't. What did you do with it? I left it in the van on the front -- on the front floor in

between the two seats. Q Did you have it covered? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 24 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q A Q A Q No, it wasn't covered. Just laying out? Uh-hmm. It was just in a holster.

25

Now, you've already talked about having a run-in with the Did they kick you out?

security. A Q A

They told me I had to leave. What did you do then? Upon leaving, I told them if I have to leave, can I at

least get my money back, because I was tired, and I said you could look at me and see I'm not intoxicated. I needed to speak with the sheriff's officers. And I went and spoke with them. told me that: This is out of our hands. And they basically That's their club. He told me that

We don't have anything to do with that. And so I just walked to the van and went to sleep. Do you recall about how long you were in the van sleeping? Approximately two hours, maybe longer. When you first went to the van to go to sleep, did anybody

go with you? A Q No, nobody went with me. At some point while you were in the van sleeping or in the

van, did someone come up and approach you? A Q A Mr. John White did. And what happened? He woke me up and said, you know, the club was, you know, UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 25 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 getting close to time for everybody to go, club was getting close to letting out.

26

And I asked him where Corey was, and he

said he's still in there, and I said, well, get Corey so, you know, we could leave. Q A And then what did John do? He went back to get Corey. And I kind of nodded off again.

He came back and woke me up and said, you know, like, wake up, you know, the club's about to let out. So I had took my shirt off when I got in the van so I wouldn't sweat it all up. And I hung it up in the back. So

basically I took the shirt off -- Well, I was getting the shirt to put it back on. on the van seat. And upon doing that, I seen the black case

And so me, being just nosey and bored, I

opened the case and looked in it and seen it was a rifle. So then at that time I picked the rifle up. And it

was dark, so I leaned it out the van to kind of get some light. And I put the van back in -- Well, actually I asked John do you know whose this is? And he was, like, no, I don't know nothing about that. So then I just put it back down, closed the case, slid it back on the seat. And we sat there talking. And at that

time, a few moments later, John was, like, police are, you know, running people off; let's get ready to go. in the passenger seat of the van. Q All right. So you're telling me that when you're putting UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 26 of 149

So I hopped

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 your shirt back on, reaching back, you see this gun case? A Q A Uh-hmm. Is that a yes? Yes.

27

I didn't know it was a gun case, but I just seen it

was a black case, so -Q A Q Is that the first time you had seen that in the van? Correct. Before you took the gun case out of the van, did you step

out of the van, or did you do it from the passenger seat? A I was stepped out of the van. I, like, reached in, opened

the case, grabbed it, took it out, and, like, looked at it, asked John, you know, I was, like, do you know whose this is? And he said no, I don't. in. Q How did you reach in? Did you reach in -- I mean, can And I just put it back, slid it back

you -A Probably, like, if the van doors are open coming this way,

and I'm facing into the van, I just kind of leaned over, grabbed it, opened the case, grabbed it, looked at it like this, put it back in the case, and slid it back in. Q A Q Did you have any conversation with Corey about that weapon? Not until later in the night. Okay. Do you know whether or not Corey has any prior

felony convictions? A No, I do not. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 27 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 hey. Q A Q A Q A Did you ever hand that gun case to John? No. Did you ever hand the gun itself to John? No. Did he ever touch it as far as you know? No. I'm a good friend. I know his situation. So I

28

wouldn't put him in anything like that, any situation like that. Q After John clued you in that, hey, the police are coming,

let's go, then what happened? A Basically I hopped into the passenger side. John closed

one of the doors, picked something up, which turned out to be a hanger later, and closed the other door. the van to get to his girlfriend's truck. And at that time the police started saying hey, hey, I didn't -- At that time I didn't know they were actually They were walking up, lights flashing, and they And he walked around

talking to us.

start flashing the light on him, on John, and asked him to come back around. And at the time they asked him to come back around, they were asking him what did he have in his hand, what did he have in his hand. Q A Q Did he come back around? He came back around, yes. When you say come back around, to where? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 28 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Well, to the other side of the van. He went from the

29

driver's side to the passenger side. Q A Q Where you initially had been standing? Correct. Do you know which deputy sheriff asked him what he had in

his hand? A I don't know his name. I just know he was a short Mexican

male, Hispanic. hand. Q A

He continually asked him what he had in his

John was, like, I didn't have anything in my hand.

Did the deputy sheriffs order you to do anything? I was pretty much sitting there. They asked him then --

One of the sheriffs had a light on me, in my face, and basically told me don't move. And so I sat there. And

eventually they asked me to get out. Q A Q A And you did? Correct. Then what happened to you? They asked me to get out. I stepped back off the van. One

of the sheriffs asked me if there was anything in the van he should know about. I said there was a gun sitting in the front

of the middle console or where a middle console would be, sitting right there. Q A Q So you directed him to that weapon? Correct. Did you tell him it was yours? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 29 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q Uh-hmm. Is that a yes or no? Yes, yes.

30

Did you see whether or not any of the officers found the

rifle? A One of them came out with the rifle. They were in the van And

for a little while.

One of them came out with the case.

at that time they pretty much asked whose gun is this? told them I didn't know. John said he didn't know.

And I

And upon

then, they asked me for my ID. taken John's ID. pockets.

I believe they had already I patted my

I told him I didn't have my ID.

I said I don't have it. The guy started, you know, yelling at me how did you

get in the club?

And I said I don't know what happened to it.

So then when they got the radio back on the information on Mr. White, then at that time one of the sheriffs basically was just, like, oh, you're on probation, you shouldn't be around firearms, kind of gave a chuckle, and was, like, you just earned yourself a tough five years. Q A Q A So then he got arrested? After that they arrested him, correct. Did you get arrested? No, I didn't. They asked me to sit down in the grass. I

told them I'm allergic to grass, if I could sit on the asphalt. And at that time the sheriff's officer asked me a couple times, UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 30 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

31

and I asked him a couple times can I just sit on the asphalt. So he came over there, physically grabbed me, and threw me to the ground. And then at that point we got into a kind of -- he started cussing at me like when I tell you to do something, and a bunch of cuss words, you'd better do it. I started cussing back. At that time he told me I'll That's when I

take you to jail for being obscene in public.

looked back to the sheriff that was standing in between me and Mr. White and basically said if he arrests me, then I want you to arrest him, because I know the law, and I'm just talking to him like he talked to me. Q A You say law school. Do you mean -You go over a brief

I mean justice studies, you know.

overview of the law and how the law came into place and things like that, but not a lawyer or anything like that. know all the statutes and things like that. I don't

But I just have

that much common sense that if you talk to me in one demeanor, it shouldn't be a problem for me to talk to you back in that same demeanor. Q Did you ever tell any of the deputies that it was actually

you that was holding that gun case? A They never asked. So basically one deputy said: Whose is this rifle? They just This gun

is fine, this handgun.

And we were both, like, I don't know. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008

Page 31 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q again? THE COURT: Yes. basically put it on Mr. White. He asked were you holding this. touched that. Q Let's talk about the condition of the scene that night.

32

He was, like, I never

Can you describe the lighting in the area that night? A Well, it's actually -- the whole entire club is pretty That area is actually particularly more dark.

dark. Q A Q A

Where you were parked? Where we were parked. Do you know why that is? Well, I mean, there's no lighting over there in that It was vacant. So there's no lighting around that

building. building.

MR. KAVANAGH:

Your Honor, if I can approach the easel

(BY MR. KAVANAGH)

On Exhibit 9, someone wrote in here two This blue X on And

blue X's along the west side of this diagram.

the furthest east is supposed to be a parking lot light.

then the one furthest west is supposed to be a street light. Do you recall those types of lighting instruments in the area? A Q No, I don't. Do you recall any street lights or parking lights on near

the van? A No. I mean, I mean, the entire club is pretty dark when UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 32 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you pulled up. The only illumination that you have from

33

anything would be from cars passing by or from the Blaze Nightclub itself with the -- its banner or sign lit up. Q So a car passing by with their headlights might be able to

see something going on? A Well, not necessarily see. I mean, it just gives you light

like, you know, just an illumination in the area. Q A Nick, how much do you weigh? Approximately right now I weigh about 320. At that time I

probably weighed about 290. Q A Q And you can see John White behind me, can't you? Correct. Does he appear to be in the same physical condition as he

was April 15th, 2006? A Q No. He's lost quite a bit of weight.

About how many pounds was he lighter than you on that

evening? A Approximately 11 pounds, because we used to go work out. And he was 279 at the time. I was

So it's around 11 pounds. 290. Q A Q

Where did you work out at? We used to go to LA Fitness off of Mill and Southern. There's been some talk about a coat hanger in this case.

Did you ever have a coat hanger? A Yes. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 33 of 149

BOWEN - DIRECT 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 34 of 149

34

Q A

Can you explain how you came about having a coat hanger. I'm just a big guy, but I like to stay clean or whatever, I don't like wrinkles and stuff.

fresh, however.

And so basically when I go anywhere, if I take time to iron a shirt, I'm going to hang it up until I get to the location, and then I put it on. Q A Q Is that what you did in this case? Correct. And this shirt that you reached back to put on, was that on

a hanger? A I mean, I had it on upon getting in the van. Knowing I was

going to be there for a minute, I took it off, put it back on the hanger, and hung it back up. Q A Q A Did you hear any conversation about a stick? No, I didn't. Are you right handed or left handed? It actually depends. I throw with my right hand, but I In a weapon sense, I would use my

write with my left hand. left hand. Q

So if you're going to be target shooting, you would be a

lefty? A Correct. MR. KAVANAGH: THE COURT: I have no further questions. Mr. Lee.

Thank you.

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
BY MR. LEE: CROSS-EXAMINATION

35

Q A Q A Q

Mr. Bowman? It's actually Bowen. Oh, I'm sorry, sir. No. Mr. Bowen, no insult intended.

It's a common mispronunciation. You indicated that you rode in the white van

That's fine.

over to the club that night with Corey, correct? A Q It was actually a grayish color, but I did ride with Corey. Well, grayish meaning it's a pretty light color; is that

correct? A Q Correct, but, I mean, it's obviously not white. And you indicated that you went to Mrs. White's house

approximately 8:30 or 9:00 that night, correct? A Q A Q A Yes. And did you drive another car there? No. Mrs. White actually picked me up.

And she -- where did she pick you up from, sir? She picked me up from my mother's house. She went to Food

City, and I live -- my mother's house is right around the corner from the Food City. Q And she just picked me up.

And you had known to meet there that night because you were

going to go over as a group for the CD release; is that correct? A Correct. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 35 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q

36

And the van was parked out in front of Ms. White's house at

the time when you arrived? A Q Yes. And John was living with his mother at that time; is that

correct? A Q Yes. And you had seen this van being used before; is that

correct? A Q Yes. And to the best of your knowledge, it was associated with

the school itself that Ms. White and her daughter own? A Q Yes. Now, you've indicated that you purchased in February of

2003 a 9mm pistol with John; is that correct? A Q Yes, sir. And that you accompanied John to the Jewel Box, and you

bought that gun with him there, correct? A Q Yes, sir. Now, can the witness be given Government's Exhibit 10

please. Mr. Bowen, I want to have your attention basically taken to the back page that shows the listing of the firearms that were purchased that day. A Q Okay. Can you see on that exhibit there's three firearms that UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 36 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q were purchased that day? A Q A Q Yes. Can you also see that two of them were 9mm handguns? Correct.

37

You've indicated to the jury today that you recognize this

handgun as the gun -- as the 9mm you bought because of the serial number on it; is that correct? A Q A Yes. You memorized the serial number on your handgun, sir? No. I'm just good with numbers. I used to look at the box

and things like that.

Just in case anything ever happened, you

know, that based on the background and area we come from, you know, you hear stories about guns being switched and things like that. Q So I want to know what's mine.

And on this date, the form says that on February 22nd,

2003, John David Johnson White bought those three firearms, correct? A Yes. MR. LEE: Can I obtain the form, Your Honor? Yes.

THE COURT: MR. LEE:

May I approach the witness?

We're going to put it up on the screen here. (BY MR. LEE) It's your testimony here today that you went

with John to buy a gun, but it was the store clerk who determined that you should just put the -- that gun on a UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 37 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 receipt so you don't have to do a background check? A I didn't actually accompany him to purchase the gun.

38

It

just when we got there and I seen the price and I had the extra money in my pocket that I decided to purchase one at that time. And then when I inquired about it, the clerk said basically, you know, to avoid time and background checks, we can just put it on the same ticket. Q Now, sir, you said you've attended classes at ASU, and you

have your degree in justice studies as well as African-American studies, correct? A Q Yes. And that you have a basic understanding of the law. You

indicated that had the police arrested you that night, you felt that you may have had some grounds to contest that, correct? A Q A Q If they arrested me when? On April 15th. Correct, yes. So when the clerk tells you that you don't have to do a

background check, that didn't cause you to have any kind of concern at that time, sir? A Q A Q Well, he just said basically put it on the same ticket. That's not my question, sir. I didn't have any concern. And do you understand that the clerk -- if the clerk told

you this, that that clerk was violating federal law at the UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 38 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 time; it's a federal felony? A Q No, I didn't.

39

Did you have any concern that since you didn't have to go

through a background check for a gun that you were buying, that you may have been violating federal law at the time? A Q A No. That didn't cross your mind at all? No, because it's just like if you would buy a gun from

somebody who's had a yard sale or something, I'm pretty sure they're not going to put you through a background check or anything like that. Q A Q This wasn't a yard sale, though, sir, was it? No, it wasn't. You were going to the Jewel Box, which you called it a pawn

shop, correct? A Q Yes, sir. And it's also true that they are a federal firearms

licensee because they were selling new firearms, right? A Q I wouldn't know that, but -Well, they were selling a new firearm to you; is that

correct? A Q A Q Correct. This firearm was not used; is that correct? Correct. And so you knew that you were at an establishment that is UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 39 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q retail selling a brand new firearm, correct? A Q Yes, sir. If I --

40

There's no question, sir. And you're absolutely sure that you didn't buy the

other 9mm? A Q Absolutely. Absolutely? Because you have the serial number memorized

on that gun, right? A I just memorized the last four digits. And if you see,

it's the last one on the list, which is the one he added on. Q Well, sir, that's an interesting statement as well, because

if you see on this, you can indicate that on -- Let's see what it says here on -- I'll focus in on it just for a moment. 19A, can you see that question there, sir? Correct. "Transferee's identifying information in Section A of this

form was transmitted to the NICS and the appropriate state agency on 2-18-03." sir? A Q A Q A Q Correct. That's several days before the gun was actually picked up? Correct. 19C, can you see the box that's checked there, sir? Correct. What does it say? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 40 of 149

That would be February 18, 2003, right,

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Q "Delayed." So do you know what the NICS is, sir? No, sir. Would you have any idea if that's the national instant

41

background check? A Q A Q No. So can you read over to 19D what that says there, sir? "2-21-03 proceed." So basically this transaction was delayed from 2-18 all the

way to 2-21, and John comes to the store on 2-22-03 and picks up the guns? A Q Correct. So at the time he bought these guns, he was attempting to

buy all three of these guns on February 18, 2003, sir? A Q No, sir. Well, so John was just attempting -- You can see the Does it seem to you to be markedly

handwriting here, sir.

different in any way, shape, or form like someone just added on the last one? A If you go up, you can obviously see that's a different pen

color. Q A Q A Where John signed, that's correct. No. I mean if you go up on the form.

You can see where John signed it's in blue. No. I'm talking if you go back up to 19A and see how it's UNITED STATES DISTRICT COURT

Case 2:03-cr-00550-FJM

Document 172

Filed 05/01/2008

Page 41 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 a blue pen color there. Q That's right, sir. You have a blue pen when it was

42

approved and agreed to proceed, but everything -- And there's a blue pen for where John signed it. But everything else on this

form, including the listing of the guns that John attempted to buy on February 18, are all listed in black pen. notice that? A Q Yeah. And you said you arrived at the club somewhere between 9:00 Did you

and 9:30 that night, correct? A Q Correct. And this happened a year and a half ago from today's date

pretty much, sir, is that right? A Q Correct. So when you say 9:00 or 9:30, you're basically

approximating, to the best of your memory, as to what the time was? A Q That's why I said approximately. I understand. And you indicated that you were tired and

nodding off in the club, and security told you to leave; is that correct? A Q Correct. Now, yesterday Kisha Spellman was on this stand and Do you know who Kisha Spellman is, sir?

testified. A Yes.

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 42 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q Who is that, sir? That's Mr. White's sister.

43

And she testified that you had been involved in a fight or Isn't that correct, sir?

altercation in the club. A Q No, sir.

Is it possible that you were with her at a different club

when a fight or altercation occurred? A Q No, sir. I'm not a fighting person by any means.

Now, Ms. Spellman also testified too regarding her

background that she's an athlete and has had -- that she has played on various different teams including basketball. know if that's true or not, sir? A Q I've seen pictures. And she testified that at the time that you weighed -- she Do you

first started at 400 pounds and then moved back down to 350 and then kept at 350 pounds for the time. A Q A Q No, sir. So you're indicating you weighed closer to 290 at the time? Correct. Now, you testified here that you were not drinking the So --

whole night that night; is that correct? A Q No, sir. The officers had come up, and Officer Hernandez has come up Is that --

and testified that you had alcohol on your breath. A If that's what he said, I don't know. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008

Page 43 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q

44

So you're testifying that you did not drink any alcohol,

and you would not have alcohol on your breath, correct? A Q Correct. So basically if the officer testifies there was alcohol on

your breath, then he's lying; is that correct? A Q Correct. All right. And we had another officer, Officer Gagnon,

come up and testify yesterday that he found a 9mm underneath the driver's seat, sir. And you didn't place that gun

underneath the driver's seat? A Q A Q No, sir. And you didn't drive over in that van that night? No, sir. I drove in the van. I didn't drive it. You didn't drive

I'm sorry.

I should have been clearer.

the van that night? A Q No, I didn't drive the van. Now, after you were starting to nod off and you were asked

to leave by the club, you went and talked to security briefly; is that correct? A The security basically came and grabbed me and said I

wasn't allowed to fall asleep in the club, it was against the law or against the rules or whatever, and told me I had to leave at that time. Q And you walked outside, and you talked to the MCSO deputies

out there, correct? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 44 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Correct.

45

Well, they told -- the security told me that I

needed to ask them. Q Right, sir. You've already answered that. I just needed

you talked to -A Q I'm just being clear. I understand. You talked to the MCSO deputies outside

afterwards; is that correct? A Q That's correct. And John was not with you at the time you talked to those

deputies, correct? A Q No, sir. And when you talked to those deputies, did you -- were you

in good light there in front of the club, sir? A Q Correct. So you could see them clearly, and they could see you

clearly, correct? A Q Yes, sir. Now, you've testified that you walked back to the van, and

you determined to go to sleep at that time; is that correct? A Q A Q A Q Correct. And how did you get the van open, sir? Somebody gave me the keys. Somebody gave you the keys before you went out to the van? Uh-hmm. So you had control of the van's keys at that time? UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 45 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q A Correct. And who was that somebody who gave you the keys, sir? I don't remember.

46

Security was pulling on me on one arm,

and there was people standing out front. Q So you can't remember if it was Corey or if it was Kisha or You just know

anybody that night who gave you the keys. someone gave them to you? A Q Correct.

Is it possible that John David Johnson White gave you those

keys? A Q I don't know who gave them to me. And you indicated that you slept for approximately two Is this based on a watch that you had on, or

hours in the van.

is it just a guess? A It's an estimate, approximate. I was out there for a long

time. Q Okay. And you said that John came and woke you up and

indicated that to a certain extent it was near closing time; is that correct? A Q Correct. And you said you indicated to him to go get Corey so that

you guys could go and leave, correct? A Q Correct. Now, prior to laying down, you've testified that -- I'm Not laying down. Prior to falling asleep you testified

sorry.

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 46 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

47

you took your shirt off and that you put it in the back, right? A Q A Q Correct. You had an undershirt on at the time, sir? Correct, always. And the hanger that was in the back, that was the hanger

you initially brought over with you? A Q Yes. And when you put your shirt in the back at the time, you

hadn't seen the black plastic gun case that was back there? A Q No. In fact, you testified that that black case was not in the It was actually on a seat in the van; is that

rear of the van. correct? A Q A Correct.

And you put your shirt in the rear of the van? No. You know where the doors are, there's always a hook,

so I just hooked it right there. Q This is an 18-passenger van, so on the van itself, you --

how far to the back did you hang your shirt up? A Q Just arm's length like that. There's a hook right there.

And you saw the case again when you went to put your shirt

back on? A When I opened the side doors and was putting my shirt back

on, that's when I saw it. Q Now, about -- Do you have any idea what time it was that UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 47 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you saw that case laying there? A Q No, I don't.

48

And you indicated that it was -- but it was after John had

come to you and was going -- and to the best of your knowledge was going back to get Corey, correct? A Q He had actually came back out and woke me up again. Okay. Well, just to understand here, then, John comes and

wakes you up. A Q He comes and wakes me up. Right. I'll just ask you. I ask him where's Corey? You ask where's Corey, and then And he leaves the van,

you tell him to go back and get him.

and you believe he's going back to get him, correct? A Q A Q A Q Correct. And it's that time you fell back asleep again? Correct. And then he came back to you one more time and woke you up? Correct. And then that's when you went back, got your shirt on, and

you see the black case sitting there, and you pulled the gun out, correct? A Q Correct. You hold it up for a moment, you ask John about it, and

then you put it right back in the case, and you close it up, right? A Correct. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 48 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q A Q You didn't walk around with it? No. Now, the officers have testified that they received an

49

anonymous tip from a taxicab driver indicating they saw a man walking around near a white van with a rifle. walking around with it? A Q No, sir. You just held it up right there in the van and put it back, You weren't

right? A Q Correct. Now, it's a funny thing, sir. The officers testified that

when they obtained the rifle from inside the van, it was not in a case. A Q Can you explain that? I saw them.

Maybe they took it out.

And the officers have also testified -- one of them in In other

particular testified that he had to clear the weapon.

words, the magazine was in the gun, and he had to take the magazine out, rack the slide back, and pull out a bullet. you explain that? A Q I didn't see any of that. Let me show you something here, sir, on this case. If I were to take a magazine and insert it into this case, if it were to go another inch or so in or so here, there's no way you could close this case, could you? A Correct. But I never said the magazine was in it either, UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 49 of 149

Can

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 so -Q

50

But you didn't put a magazine in, and you didn't load it,

right? A Q it? A Q A Q No. Because you didn't see that occur, correct? No. You are, as you described yourself, a good, close friend of Correct. Is it possible that Mr. White put a magazine in and loaded

the defendant; is that correct? A Q Correct. And you said the defendant then testified -- the defendant

said something to the effect the police are coming to kick us out; let's go. A Q Is that pretty much what it was?

Not to kick us out but to clear out the parking lot. The police are coming to clear us out, so we need to go,

right? A Q Correct. And then you testified that John walked around to the front

of the van near the driver's side, and you believe that he was heading to another vehicle, right? A He was heading to another vehicle. When we came -- When we

came and we first parked, his girlfriend's truck was already there. And we just backed in just how their vehicle was backed UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 50 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 in. Q A Q Where was his girlfriend's truck at? Right next to the van. Would it surprise you that Angel testified, his

51

ex-girlfriend, that the vehicle was actually up here in the parking that was near Peoria, not along the van or next to it? A Q I don't -Is it possible, sir, you don't have a clear recollection as

to actually where her vehicle was parked? A Q A Q I remember her van being there when we pulled up. Her van? Not her van but her truck. Okay. She has a Durango.

But if she testified that she actually had it parked

up here on this side, do you have any reason to doubt, or is this what you remember? A Q That's what I remember. I couldn't speak for her.

And you said that John was near the driver's -- up near

where the driver's area was standing outside when the deputies approached, correct? A When -- Yeah, correct, but that would be adjacent to the

passenger side of her vehicle. Q Right. And Kisha Spellman, when she testified, she

testified that when the police approached, that you and John and a third person were standing here next to the rear of the van on the south side. Does that surprise you at all?

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 51 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 A Q I don't remember that.

52

And she testified that she saw you get in the van at that

time. A Q I don't -As the police were yelling and approaching, that you

actually jumped in. A Q In the passenger, when we left, when we got in to leave. Now, you testified that the deputies, after they arrived,

eventually told you to just come out of the van, correct? A Not when they first arrived, they didn't. They just told

me to stay still. Q A Q You didn't hear them tell you to raise your hands? No. And you didn't put your hands outside of the van and hold

them up? A Q A Q No. The window was up.

Did you see if the officers had their guns drawn? No. They had their lights on me, so I couldn't see. Those lights were blinding

They had the lights on you.

you, sir? A Q A Q A Correct. You're talking about their flashlights? Uh-hmm. So they just calmly told you just to stay in the van? They said stay still; don't move. That's what I did.

UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 52 of 149

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Q

53

And they asked you about where your ID was, and you didn't

know where your ID was; is that correct? A Q Correct. You have no idea how John David Johnson White got your ID

into his wallet, do you? A Q No. You never told the deputies you were holding the rifle that

day, did you? A Q No. Never told the deputies the 9mm was your gun that day, did

you? A Q Yes, I did. Did you ever contact the MCSO or the ATF to try to get your

gun back, sir? A Q No. And this gun was seized almost a year and a half ago; is

that correct? A Q Correct. The officer records in his report -- and I'm interested if

this is correct -- "At one point Nicholas stood up, continued to be obnoxious, calling me a nigger, and telling me I didn't know what I was doing. I soon got tired of Nicholas's behavior When he refused, I went up to

and told him to sit back down.

him and told him to sit down again, then grabbed him by the shirt behind the neck and started to help him down. UNITED STATES DISTRICT COURT
Case 2:03-cr-00550-FJM Document 172 Filed 05/01/2008 Page 53 of 149

My

BOWEN - CROSS 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 intentions at this time were to prevent the situation from

54

getting out of hand and keep Nicholas on the ground where he could be better controlled for officer safety reasons." remember anything like that, sir? A After he threw me on the ground the first time, then, you Do you

know, they were asking me -- The guy picked me up, patted me down again, and I just sat back down again. But me calling somebody a nigger, especially a Hispanic male when I'm black and I studied African-American studies and I know the derivative of that word, that's absurd alone. Q So when they asked you to come out of the van, they just

asked you to exit the van, sir, and the first time they threw you down is they just took you out of the van and just threw you onto the grass? A No. I mean, I walked back, and they went, and they asked I told them the gun was in the

me if anything was in the van. van.

So the first officer, which was another -- There was a

tall white male, a short white male, and a short Hispanic male. The shorter white male went in the van and got the handgun out. Q Okay. That's not what I asked, sir. I asked about the You said it happened

first time they threw you to the ground. twice. A