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 7, 2007 9:10 a.m.

THE HONORABLE FREDERICK J. MARTONE, JUDGE

REPORTER'S 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

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2 1 2
SUMMARY OF COURT PROCEEDINGS PAGE: 179 258

INDEX

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
EXHIBIT NO.: WITNESSES FOR THE GOVERNMENT: HERNANDEZ, Rafael J. Rule 29 Motion Outside the Presence of the Jury Proceedings Outside the Presence of the Jury INDEX OF WITNESSES Direct 3 Cross 35 Redirect 104

GAGNON, Richard James SANDER, Patrick Sean WITNESSES FOR THE
DEFENDANT:

116 147
Direct

130 171
Cross

144 178
Redirect

SWEEDO, Michael John GRIFFIN, Angel SPELLMAN, Kisha

182 199 219

189 207 236

199 218 256

INDEX OF EXHIBITS DESCRIPTION: ID'D: RECEIVED:

1 2 2A 2B 2C 3 3A 3B 3C 4 5 5A 6 7 7A 8 9 10 100 101 122 123 124 125 H

Romanian Arms Model SAR-1 Rifle 26 Hi-Point Model C9 9mm Handgun 28 8 Rounds Federal 9mm Ammunition 30 Hi-Point Handgun Magazine Handgun Holster AK Rifle Magazine AK Rifle Magazine 77 Rounds of Wolf 7.62 x 39 mm Ammunition Hard Plastic Rifle Case Stipulation - Prior Felony Conviction 157 Stipulation Re Jewel Box Receipt 168 Jewel Box Receipt No. 214337 168 Certified MVD Vehicle Record 157 Driver's License Photo - N. Bowen 163 MVD Driver's License Record - N. Bowen 165 MVD Driver's License Record - Defendant 162 Drawing by Deputy Hernandez 3 ATF Form 4473 166 MCSO Report 06-61030 37 Redacted Release Questionnaire 4/15/06 58 Aerial View Crime Scene/Street Names 65 Aerial View Crime Scene/No Street Names 65 Aerial View Big & Tall/Blue Roof in View 65 Aerial View Big & Tall/No Blue Roof View 65 Impeachment Exhibit 10/11/06 Evaluation 136 UNITED STATES DISTRICT COURT

28 32 32 32 32 35 35 35 35 157 168 168 158 165 163 35 167 61 66 66 66 66

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BY MR. LEE:

(Proceedings in the presence of the jury:) THE COURT: to see you. Mr. Lee.
RAFAEL J. HERNANDEZ, GOVERNMENT'S WITNESS, PREVIOUSLY SWORN CONTINUED DIRECT EXAMINATION

Welcome back, members of the jury.

Good

Q

Now, Officer Hernandez, as we ended yesterday, we discussed

you making a diagram of the scene as it existed back on April 15, 2006. A Q Did you do that after court yesterday?

Yes, sir, I did. Is that diagram represented on the easel that's in the

court here today? A Yes, it is. MR. LEE: Your Honor, I would like to have this marked

as Government's Exhibit No. 9. THE COURT: MR. LEE: Yes.

If it's all right, can I move it forward? Yes, please do.

THE COURT: MR. LEE:

Can I have the officer step down so he can

explain what he drew? THE COURT: Yes. Excuse me, Your Honor. Is that the problem?

MR. KAVANAGH: THE COURT: Mr. Kavanagh?

Can you see that?

UNITED STATES DISTRICT COURT
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HERNANDEZ - DIRECT

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MR. KAVANAGH:

Judge, I would like my client to also

be able to watch as much as possible. THE COURT: He's going to have to sit there, but maybe

you can trot that easel over there so everyone can see it. MR. LEE: I'm trying to see what's best. I don't mind standing, if that's okay.

MR. KAVANAGH: MR. LEE:

I wonder if I can move this here, and if I

move the podium, would that be all right, Your Honor? THE COURT: MR. LEE: Yes.

Thank you.

I'll place the exhibit sticker on the lower left-hand corner indicating Government's Exhibit No. 9. Q (BY MR. LEE) Officer Hernandez, what's going to be

important here is the court reporter has to hear you, and we don't have microphones nearby. problem, please let us know. If that's going to be a

So you're going to have to turn

to face her as well as the jury when you give an explanation of what is on this. A Q Yes, sir. Now, can you please explain generally what you have drawn

here and the various streets that are here and location, and then we'll get into specifics. A This is pretty much a layout of the nightclub, north being

at the top of the easel, south, west, and east, Peoria Avenue, 27th Drive, and then North Lane. UNITED STATES DISTRICT COURT
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On the east side continuing going east is going to be a hotel and then I-17, which runs north-south. The nightclub

sits just north of North Lane with the entrance facing North Lane. So the entrance would be actually south. So northwest

of the nightclub there's a vacant building that used to be, I believe, a Big & Tall Men's Store, and this is the scene where everything happened. Right just west of the vacant lot is where the van was parked facing eastbound. Q And was the van in a -- within the white lines of a

parking -- delimiting what is parking? A Yes, sir. There is parking spaces all along this side

right here, and the van was backed up into one of those parking spaces. Q Now, you've drawn a long rectangle behind the van as it What does that represent?

edges toward 27th Drive. A

This is just a little grassy area probably about eight feet

wide by the length of the parking lot, and that's just all that signifies the grassy area. Q Okay. You've also drawn a single vertical line -- I'm Can

sorry -- horizontal line underneath the vacant building. you please explain to the jury what that is. A As you come into this -- As you're pulling into the

entrance into the nightclub and to the vacant lot, there's an entrance off of 27th Drive. On 27th Drive, the ground kind of

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slopes upward.

So there's, like, a little wall, a little

retainer wall that separates the parking lot from this area, so the parking lot from the nightclub. It starts almost at, oh, probably a foot and continues on to this, once you get to this area here, probably about three feet up. Q So all it is is a little divider.

Now, about the middle of your diagram on the left-hand side Does that represent the

you have drawn two hash marks. entrance off the street? A

Yes, approximately the entrance where you would pull off

27th Drive into the parking lot. Q A Are there street lights at this area? There's one street light on 27th Drive, and there's, like,

a little peninsula that comes out here with bushes or something, I believe. And there's another light right there,

which is for the parking lot area. Q I'm going to hand you a blue pen. Can you please put an X

on the two lights please. A Q The two lights would be approximately here and right there. Okay. And can you please put a circle around where you and

the other deputies were standing at the nightclub that night when the taxicab driver came and gave you the initial tip. A Yes, sir. We were approximately in this area right here, The southwest part of the club is where

just outside the club. the entrance is at.

And we would usually stand right in front

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of the entrance. Q Now, after receiving that tip, what did you do at that

time? A What we did is we just walked through the parking lot. You've got parking lot, parking

This is all parking lot here. lot here. Q

So we just walked this way, northwest --

Can you do that -- Using hash marks, can you show generally

where you were? A Yes. We just walked this way. And the reason we did is we

figured if there was anybody out here with a weapon as the cab driver had described, we would go ahead and use the concealment of the parked vehicles to keep us out of sight. to this way. Once we hit the little wall, the end of the wall, is when we had a clear view of the van and the individual with the weapon. him. Q Now, just so the jury understands, you're walking. As you So we just continued up until we made contact with We walked over

walked through here, there's no pauses until you reach real close to the van; is that correct? A Q Correct. But we're going to take your testimony a step back here.

And tell us what you saw when you initially got to the point where the retaining wall was. A Once we got to the end of the retaining wall where there's UNITED STATES DISTRICT COURT
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no vehicles, looked up, and that's when we saw the individual was carrying the rifle walking back and forth east and west on the south side of the van. Q A And was there anyone else with that individual? Standing outside or -- There was an individual inside the

van, but there was nobody else outside. Q A Q Where was this individual located inside the van? He was in the front passenger seat. And the -- You've described that there were street lights What was the illumination like in general?

that evening. A Clear.

It was almost a full moon, so you could see very

well without -- I didn't use a flashlight at all the whole time. Q Did any of the other deputies use a flashlight as you came

onto the scene? A I don't believe that they did. I know that I didn't. The

illumination was so well that you didn't need one. Q Now, from the retaining wall itself, you -- what could you

observe again? A The individual walking back and forth with the rifle in his

hand just swinging with the natural movement of his arm. Q A Q And which hand was the rifle in? It was in his left hand. And could you tell what kind of rifle it was from that

distance? UNITED STATES DISTRICT COURT
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A Q A Q

Yes, sir.

You could see it was an AK-47.

And do you personally own an AK-47 style rifle? Yes, I do. And, furthermore, in your experience with the Marines, have

you come in contact with AK-47 style rifles? A Q Numerous weapons overseas. And, in particular, your overseas during Operation Desert

Storm; is that correct? A Q Yes, sir. And while you were overseas, you saw numerous of these

types of rifles, correct? A Q A Q Yes, sir. And you could see this weapon was that AK-47 style? Yes. And, again, what was the individual holding the rifle, what

were they doing at that time? A He was just walking back and forth the length of the van,

and it looked like he was talking to the individual in the front passenger seat. Q All right. Now, as you continued walking forward, were the

other deputies with you at that time? A Yes. I had Deputy Gagnon to my right, and Deputy Dietrich He was out of my sight.

was back to my left. Q

And as you approached the van, was there anyone else

standing outside or inside -- or was there anyone else inside UNITED STATES DISTRICT COURT
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the van other than the passenger and the person walking outside? A The only person I could see was the passenger and then the After we made

individual who was outside holding the rifle.

contact with him, I searched the inside of van and found out there was nobody else inside the van other than the passenger. Q Now, as you continued to walk forward -- Well, let's take a At the retaining wall, what is the distance

step back here.

approximately that you believe from the retaining wall to the van when you first saw the person walking? A Q I would say about 20 yards. Which is based on what estimate? How do you determine what

is 20 yards and what isn't? A Just from being in high school playing football, and you

know what a 100-yard football field is, and I go by that. Q A Q This is an approximate determination? Approximate, yes. And you did not take a tape measure that night and measure

exactly the distance from the retaining wall to the van; is that right? A Q No, sir. Now, when you got to about 20 feet from the person walking

back and forth, could you see that person clearly? A Q Yes, sir. And the person who was walking back and forth and holding UNITED STATES DISTRICT COURT
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the rifle, is that person here in the courtroom today? A Q Yes, he is. Can you please tell the Court and the jury where this

person is in the courtroom today and what this person is wearing? A He's seated right here, wearing black trousers. I'm

color-blind, so it looks like he's got a green shirt, could possibly be brown. Q A And he's seated at defense table; is that correct? Yes, sir. MR. LEE: May the record reflect, Your Honor, the

officer has identified the defendant as the individual who was holding the rifle that evening? THE COURT: Q (BY MR. LEE) Yes.

Now, when you got to within about 20 feet of

the defendant at that time, what did you determine to do? A Once I got to the retaining wall, when I saw him with the

weapon in his hand, at that point I went ahead and drew my weapon. Q A What did you do then? And continued forward to confront him. But I didn't let

him know that I was coming until I got a little bit closer. Q A And why did you draw your weapon? Well, like I said, this individual has got a weapon. His

fire power compared to the weapon that I had, I had no idea UNITED STATES DISTRICT COURT
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what his intentions were.

So to be on the safe side, take care

of myself and the deputies that were with me, I'm going to draw my weapon. Q Again, was it also unusual for a person to have an AK-47

style rifle at 2:00 in the morning in the parking lot? A Q It is to me. Now, as you approached, when did you first make verbal

commands to the defendant? A I probably got to within 20 feet, probably in this area

right here, and I started making verbal commands. Q Why don't you put a little box using your blue pen as to

where approximately you believe you started making verbal commands. A Q A Q A Approximately this area. And before that time had the defendant seen you walking up? No, he did not. Why not? He was walking back and forth with his back towards us, it He wasn't

looked like, talking to the passenger in the van. paying attention to anybody behind him. Q A Q A

What verbal commands did you give at that time? Told him get his hands up. And what happened at that time? Once he heard me make the commands, he looked -- kind of On seeing me, he took a step

looked back over his shoulder.

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towards the van, threw the weapon in, reached with both hands, slammed the door -- the van side doors, slammed them shut, and then turned around and started demanding to know what he did wrong. Q Now, as you approached the van -- and we -- As you

approached the van, were the van's rear passenger doors, were they open? A Q Yes, they were. And was this a sliding door, or were these two separate

opening doors? A Q I believe they were two separate opening doors. And as you did that -- So as the defendant threw the rifle

in, he then also slammed the doors shut; is that correct? A Q A Yes, sir. Could you see where the rifle landed at that time? Yes. I was close enough that I saw it landed -- There was

a bench seat in the -- Behind the two front seats, there's a bench seat, and it landed underneath it. Q A Q Is that where you recovered the rifle moments later? Yes, sir. Now, after the defendant put the rifle in, slams the door,

and turns back around and starts demanding to know what he did wrong, what did you say to him, if anything? A Well, when he demanded to know what he did wrong or why

were we treating him that way, I said because of the weapon UNITED STATES DISTRICT COURT
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that you had in your hand. Q A And what did he tell you at that time? He said that he had no weapon in his hand or might have

been that he had no weapon in his hand. Q A What did you say to him then? I told him he could say whatever he wanted to because I saw

him with my own eyes. Q A Q A What did the defendant reply? That he didn't have anything in his hand. Did he indicate that he had been holding something else? Yes. He said he didn't have a weapon in his hand. He said

he had a stick in his hand. Q A Q A Q And what did you say in regards to that? At one point I said, well, then, where is the stick? And what did the defendant say about that? He said he didn't know. Now, as this conversation is occurring, what did you

also -- what were you ordering further for the defendant to do at that time? A We were -- Well, at this point he already had the weapon in He closed the doors. He turned around, and he

the vehicle.

was facing me.

I had him with his hands up above his head, and

I ordered him to step over to what would have been my right where Deputy Gagnon was at so he could take charge of him. Q To the best of your understanding at that time Deputy UNITED STATES DISTRICT COURT
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Gagnon handcuffed him; is that right? A Assuming -- Once he was in Deputy Gagnon's control, he was

out of my sight, so I was paying attention at that point to the passenger in the van. Q A What did you do then? I opened up the van to clear the van, make sure there was Once I had done that, I reached in,

nobody else inside.

grabbed the rifle, pulled it out, and then I ordered the passenger to step out of the van. Q A What did you do with the rifle at that time? At one point I gave it to Deputy Gagnon, who went ahead and

cleared it, made sure there was no rounds in the chamber. Q Okay. And when you pulled the rifle out of the van, you

could see the magazine was sticking out; is that correct? A Q Magazine was attached to it, yes, sir. And, in fact, before that, when the defendant was walking

back and forth with it, could you also see the magazine was in it? A Q Yes, sir. Now, when you asked -- when you had the passenger removed

from the van, did you handcuff the passenger? A Q No, sir. The passenger was never handcuffed.

And at any point that evening did you see the passenger was

handcuffed? A No. The passenger was never handcuffed. UNITED STATES DISTRICT COURT
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Q

So the only person that you saw that was handcuffed that

evening was the defendant? A Q A Q Yes, sir. And the defendant was the one holding the rifle, correct? Correct. All right. Now, after you had the passenger exit and you

had -- Well, before we get to that -- I'm sorry -- why did you determine to grab the rifle out of the van and have Officer Gagnon clear it? A Officer safety reasons. I wanted to make sure there was

nothing that accidental discharge or anything -(Reporter interrupted for clarification.) A I wanted to make sure there's no rounds in the chambers so

we don't have an accidental discharge in case somebody's handling the weapon. weapon. THE COURT: chart? MR. LEE: can. Q (BY MR. LEE) And in reaching into the van and pulling out For just one more minute, Your Honor, if I Mr. Lee, does he still need to use the Just wanted to make the weapon a safe

the weapon before the passenger left, was there also officer safety purpose by obtaining the weapon then? A Yes. That's why I went in and cleared the van first. I

checked the inside of the van, make sure there's nobody else UNITED STATES DISTRICT COURT
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inside.

That was my first priority.

Once I saw that there was

nobody else in the van other than the passenger who was still holding his hands up high where we could see them, that's when I reached in and pulled the weapon out. Q A Q Where were the passenger and the defendant taken to? The little grassy area right behind the van. Were they seated there? Were they standing there? What

were they doing? A Q We had them sit down. Can you please indicate on the diagram to the best of your

knowledge by putting a triangle down where the passenger and defendant were seated. A Q Approximately this area right here. Okay. And then last but not least, we also had -- there

was a hanger outside the van; is that correct? A Q Yes, sir. Can you please, using this red pen, put an X as to where

that hanger was located. A The hanger was approximately located right about there. MR. LEE: Why don't you have a seat, and we can

continue on from there. Q (BY MR. LEE) Now, the passenger in the van, did you

recognize that passenger? A Q Later on, yes, I did. How did you recognize him? UNITED STATES DISTRICT COURT
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A Q A

He had been removed from the club earlier that evening. About what time, do you know? I'm sure it states it in the report, but I'm thinking it

was roughly about 11:00. Q A And why was this individual removed? The bouncers had told us that he had fallen asleep inside

the club because he'd been -- they felt he had been drinking too much and fallen asleep, so they wanted him to leave the club. Q A And so what happened when the bouncers brought him outside? He left peacefully. There was no problems whatsoever. He

left. fine.

He was told that he had to leave the premises, which is I went back, and we, the three deputies, we went back,

and we were standing in the same spot, and then he came up and approached us and started talking to us. Q A What conversation did you have with him? He was just telling us that he was going to law school.

That's pretty much the conversation. Q Do you have any other particular recollection of the

conversation other than that statement? A Q A Q A No, I don't. Then after having this conversation -- Was it a brief one? Yes, sir. It wasn't very long.

What happened at that time? He left. UNITED STATES DISTRICT COURT

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Q

Now, after the defendant and Mr. Bowen were seated at that

grassy area, what did you proceed to do at that time? A Once we went ahead and we checked the vehicle, make sure In searching the

there was nothing else in the vehicle.

vehicle, we found another pistol which was under the front driver's seat. Q A Q A And who found that pistol? That was Deputy Gagnon. And what did you find in the van? In the back of the van, I found a case, a plastic case, a

hard plastic case, and inside that plastic case there was another magazine loaded with AK-47 rounds. Q A Q And what caliber were those rounds? I'm not sure of the exact caliber, sir. Now, after locating the firearms, did you have a

conversation with Mr. Bowen? A We -- You're going to have to reask that question. I'm not

sure exactly what you mean by conversation. Q Well, after locating the firearms, did you go back over to

the grassy area at that time and start talking with Mr. Bowen and the defendant about their personal information? A Q A I went and got their information, yes, sir. And how did you proceed to do that? Well, we asked the front passenger if he had any

identification on him, because the first thing I wanted to do UNITED STATES DISTRICT COURT
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is I wanted to run their information through our dispatch to see if there was any wants or warrants on these individuals. The passenger advised me that he did not have any identification on him. Q A And was that unusual, sir? It was, seeing that he'd just come out of the club earlier

that night, because they card everybody walking into the establishment. Q A So you have to have an ID with you.

Did you ask Mr. Bowen why he didn't have his ID? I did ask him that, and I don't remember him ever giving me

an answer. Q After talking with Mr. Bowen about this, what did you do

next? A Then I went ahead and asked Mr. White if he had any I searched his pockets, because he was at this

identification.

point handcuffed, saw that he had a wallet, pulled the wallet out and started going through it looking for his identification. Q A Q A Q A Q Whose identification did you find in the wallet? In there I found the identification for the passenger. And what type of identification was it? I believe it was a driver's license. And what was the name on the license? I couldn't tell you right offhand, sir. Did you learn that that was Nicholas Bowen; is that UNITED STATES DISTRICT COURT
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correct? A Q A Q Yes, sir. Did the license picture match the passenger? Yes, it did. After you gained personal information from both the

defendant and from Mr. Bowen, did you contact MCSO dispatch or Maricopa County Sheriff's Office dispatch to get information regarding the defendant, Mr. Bowen, as well as for the van that was there? A Yes, sir. Once we went ahead and called the information

into our dispatch center, they ran the information on both individuals and on the van. Q Now, while talking with both Mr. Bowen and the defendant,

did you notice anything unusual about them? A Other than that they had a strong odor of an alcoholic

beverage on them, that's about it. Q And did you notice that from them collectively or

individually? A Q Individually, sir. Now, during this time period as you were gaining

information from these two individuals and calling dispatch, what was the defendant saying, if anything, to you? A The defendant kept saying that he did not have a weapon.

The whole time he just kept reiterating that he didn't have a weapon, he didn't have a weapon. And at one point he looked

UNITED STATES DISTRICT COURT
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down at the ground and saw the white hanger, and he said that's what I had in my hand. Q Okay. Did he have the white hanger in his hand when you

walked up? A Q No, he did not. And just so the jury understands, you saw him holding the Did you see him holding a hanger in

rifle in the left hand.

his right hand or in any other way, shape, or form? A The only thing he had in his hands was the rifle, which he

had in his left hand. Q Did MCSO dispatch confirm the van was registered to the

defendant? MR. KAVANAGH: THE COURT: Objection. Hearsay.

The objection is overruled. Yes, it did.

THE WITNESS: Q (BY MR. LEE)

And did MCSO dispatch further confirm the

defendant was a felon? A Q Correct. Was that the determination that you used; your personal

observations plus their statements did you use to determine to arrest the defendant for being a felon in possession that night? A Q A Yes, sir. And did you further arrest him for disorderly conduct? I did. UNITED STATES DISTRICT COURT
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Q A

What was the reason for that? Well, I felt that being he was a felon, a prohibited

possessor and in possession of a weapon, I felt that was disorderly conduct with a weapon, so I went ahead and put that charge on him. Q Just so the jury understands, a prohibited possessor is Are you indicating that that means

kind of a term of art.

prohibited from possessing a firearm; is that correct? A Q Correct. Also while this process was occurring, did a female

approach you and ask what was occurring? A Yes, sir. It was towards the end of the whole incident

there was a female that approached. Q And can you give us -- What's the best description you can

give us of this individual? A Q A Description of her? Yes. I remember she was young. I couldn't tell you exactly the She came

age.

Maybe late twenties, possibly early thirties.

up and wanted to know what was going on.

I explained to her

that we had the gentleman under arrest for having a weapon in his possession, being a prohibited possessor, and that was pretty much -- It wasn't a long conversation. Q And at some point in time did you do something with the

keys to the van? UNITED STATES DISTRICT COURT
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MR. KAVANAGH: THE COURT:

Objection.

Foundation.

I'm not sure I understand the objection. Judge, assuming facts not in evidence.

MR. KAVANAGH:

We have no idea where these keys came from or where they originated, so that's the objection. THE COURT: I see. The objection is sustained. Maybe

you could back up a few questions. Q (BY MR. LEE) At some point in time did you obtain the keys

to the van? A Q Yes, I did. Do you know -MR. KAVANAGH: Objection. Same objection, Your Honor.

Trying to establish whether it was the keys to that van or not, if he can do that. THE COURT: (BY MR. LEE) The objection is overruled.

In obtaining these keys, do you remember

whether you received them, took them out of the van or from a particular person? A Q A No, sir, I do not remember. What did you do with those keys, if anything? Once we decided we were going to go ahead and take him into I could either have the vehicle

custody, I had two choices.

towed, or I asked him if he wanted me to go ahead and give the van to the female that was there. That way they can go ahead

and take it home or do whatever they wanted to. UNITED STATES DISTRICT COURT
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Q A Q

And what did the defendant indicate to you? To go ahead and give her the keys. And when you say the female that was there, are you again

referring to the female that approached you and asked what was occurring? A Yes, sir, the one who actually identified herself as his I didn't get her name or anything because I didn't

cousin.

feel that that was necessary. Q At any time that night, did the defendant indicate that

Mr. Bowen was holding the rifle or the handgun? A Q No. At any time that night did the defendant indicate that the

handgun was Mr. Bowen's? A Q No. At any time that night did Mr. Bowen indicate that he had

been holding the rifle? A Q No. At any time that night did Mr. Bowen tell you that he owned

the handgun? A Q A Q A Q No. Had you been drinking alcohol that night? Pardon? Had you been drinking alcohol that night? No, sir. Did you impound the firearms, ammunition, the plastic case, UNITED STATES DISTRICT COURT
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pistol, and holster recovered that night from the defendant in the van? A Q A Q Yes, sir, I did. Were these later provided to ATF Special Agent Sean Sander? Yes, they were. In your report did you record the basic information

regarding these firearms and ammunition, including caliber and serial number. A Q Yes, I did, sir. Furthermore, in your report did you record the make, model,

year, license plate number, and state and VIN number of the van -A Q A Q Yes, I did. -- where the firearm was recovered? Yes, sir. And, furthermore, did you record personal information

including a physical description of the defendant and Mr. Bowen in your reports? A Yes, I did. MR. LEE: Your Honor, at this time, with the help of

Agent Sander, can the witness be given Exhibit No. 1? THE COURT: MR. LEE: Yes.

Your Honor, there's two firearms that are We have zip tied the

going to be brought in as exhibits.

action back, and I have personally confirmed that the firearms UNITED STATES DISTRICT COURT
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are unloaded. Q A Q A Q (BY MR. LEE) Yes, sir. And how do you recognize it? This is the weapon that I impounded. Prior to coming to court here today, have you compared the Officer, do you recognize Exhibit No. 1?

description that you put in your report with Exhibit No. 1? A Q Yes, sir. And in making that comparison, does the comparison match

for the description of the firearm, with the sole discrepancy being how you listed the first digit of the serial number? A Yes, sir. I, in listing the serial number for the weapon, Come to find out

I believe I listed the first letter as a 5. it's actually an S. Q

And as you look at the serial number right now, is it, on

the rifle, is it difficult to distinguish whether it's an S or a 5? A I would have to use my glasses even to see it at this Yes, it is pretty hard to see.

point, sir. Q

Now, after performing this comparison with the information

in your report with Exhibit No. 1, have you come to a determination as to whether this is the same firearm you seized from the defendant that night? A Q Yes, sir. And what is that determination? UNITED STATES DISTRICT COURT
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A Q

That this is the weapon that I seized. Other than the red fingerprint powder that's on it, is the

weapon in essentially the same condition that it was when you seized it from the defendant that night? A Q Yes, sir. And you did not put the zip ties that put the action back;

is that correct? A No, sir, I did not. MR. LEE: Your Honor, the government would ask that

this firearm be moved into evidence, Exhibit No. 1. THE COURT: Is there any objection? No, Your Honor.

MR. KAVANAGH: THE COURT: MR. LEE:

1 is admitted.

You can set that down.

With the help of the agent, Your Honor, can the witness be given Exhibits 2, 2A, 2B, and 2C? THE COURT: Q (BY MR. LEE) Yes. Have you seen

We'll start with Exhibit 2.

this exhibit before today? A Q Yes, sir. Is this the firearm that Officer Gagnon gave you that he

received -- took from the van underneath the driver's seat? A Q A Yes, sir. And is this the firearm that you impounded? Yes, sir, it is. UNITED STATES DISTRICT COURT
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Q

Now, did you record a description of that firearm including

its serial number in your report? A Q Yes, I did, sir. Prior to court here today, did you compare Exhibit No. 2

with your report and the description? A Q Yes, sir, I did. And did you confirm the serial number and the make of this

firearm? A Q I did. In making that comparison, do you believe this is the same

firearm that you -- that was seized from the van that evening? A Q Yes, sir. And other than the fingerprint powder that's on it, is it

essentially in the same condition as when it was seized from the van that night? A Q Yes, sir. Also want you to take a look inside the box that we have

before you. Can you take the items in that box out, please, and set those down. The box that's before you, is that what you

utilized to impound the handgun, the holster, and the handgun's ammunition -- magazine? A Q Yes, sir. And how do you know that this is the box that you utilized

to impound it? UNITED STATES DISTRICT COURT
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A

It's got my number.

It's got my initials and my serial

number on the box itself. Q A Q And is that in your handwriting, sir? Yes, sir, it is. And the number that we see on it, 06-061030, is that the

departmental report number or the number that's given to the report that you wrote in this incident? A Q Yes, sir. And did you impound, again, the handgun, its magazine, its

ammunition, and the holster in that box? A Q A Yes, sir. Looking at the magazine and -I'm sorry. I'm not sure if you said the ammunition. The

ammunition was not in the box. little container. Q

The ammunition was in this

Thank you for correcting me. In the box itself was the handgun, the magazine, and

the holster; is that correct? A Q Correct. The magazine and holster that you have before you, do they

appear to be the same ones that were taken from the van that were in -- that were utilized with this pistol? A Q A To the best of my recollection, they do. The ammunition itself, you said it was packaged separately? Yes, sir. I always have -- Whenever we impound a weapon, UNITED STATES DISTRICT COURT
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the ammunition has to be packaged separately from the firearm. Q The ammunition itself, Exhibit 2A, do you recognize that

ammunition? A Q A Yes, sir. 9mm.

Are there eight rounds of Federal 9mm ammunition there? Yes, sir. There are, I believe -- I believe three were the

ball, and the other five were hollow points. Q And that's a description of the physical bullet, not of the

make or manufacturer, correct? A Q Correct. And in the bag that you have there, did you sign a receipt

indicating that these are the bullets that you got from the scene that time? A Yes, sir. I filled out all this information right here in

the front. Q A Q A Q A Q Does it indicate your report number as well? Yes, it does, at the very top. Is it dated? Yes, it is, date of impound. And does it further have your initials or signature on it? It's got my name and my serial number, sir. Do you believe that these bullets are the same bullets that

you impounded in relation to the Hi-Point 9mm that was seized on April 15th, 2006, at the scene we've been talking about today? UNITED STATES DISTRICT COURT
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A

Yes, sir. MR. LEE: Exhibits 2, the handgun; 2A, the 8 rounds of

Federal ammunition; 2B, the handgun magazine; and 2C, the handgun holster, we would ask that these be moved into evidence, Your Honor. THE COURT: Is there any objection? No, Your Honor.

MR. KAVANAGH: THE COURT: Q (BY MR. LEE)

They're all admitted.

Now, to clear some space here, we'd ask

that -- if we can ask the agent to take these off and ask if it would be all right, Your Honor, for him to bring up some other items in just a moment. We ask the witness be brought -- You can take the hard case with the ammo and magazines in it, the hard case, the magazines, and the ammunition. and 3C. Now, that night in the back of the van, you found a hard plastic case; is that correct? A Q Yes, sir. Have you compared with your report the hard case that's These are Exhibits 3, 3A, 3B,

before you to see if this is the same? A Q Correct. And further on this case did you put an exhibit tag for

when you impounded this case? A Yes, sir. I put an evidence tag right in the middle of the UNITED STATES DISTRICT COURT
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case. Q And in this case you found another AK-47 style magazine; is

that correct? A Q A Q Correct. And was that loaded with 36 rounds of ammunition? Yes, sir. Also with the rifle itself, it had a magazine that was

loaded, correct? A Q Yes, sir. And it had approximately 39 rounds of ammunition; is that

correct? A Q A Q Yes, sir. As well as one round that was in the chamber? Correct. The magazines that are before you, Exhibits 3 and 3A, can

you tell the jury -- are you able to tell the jury which one was in the gun and which one was in the plastic case? A Q A Q A Q No, sir. Are both magazines unloaded at this time? Yes, they are. The 7.62 x 39 ammunition, did you impound this as well? Yes, sir, I did. At this point in time, it's in two plastic bags; is that

correct? A Correct. UNITED STATES DISTRICT COURT
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Q

The bag that the ammunition is in, it's covered by another

Ziploc; is that correct? A Q A Yes, sir. Which bag did you put on this firearm, on this ammunition? The initial bag is the one that's inside, the Ziploc bag,

the one with all the tags on it. Q And, again, did you -- does it have your departmental

report number from that evening? A It does, along with my name, my serial number, and the date

that I impounded it. Q When you impounded it, you indicated in your report there

were 76 rounds of this 7.62 x 39 ammunition; is that correct? A Q I believe so, yes, sir. And when you turned it over to ATF, and they counted it,

they believed they counted 77; is that correct? A Q A Q That's what I was told, yes, sir. Do you have any idea the discrepancy between one bullet? No, sir. And this -- the ammunition, the hard case, and the two

magazines, are they essentially in the same condition they were when you seized them that night? A Q A Yes, sir. Other than the tags that are placed on them at this time? Correct. MR. LEE: Your Honor, we would ask that this be --

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Government's Exhibit 3, 3A, 3B, and 3C be moved into evidence. THE COURT: Any objection? No, Your Honor.

MR. KAVANAGH: THE COURT: MR. LEE:

They're each admitted.

Your Honor, we would further ask for

Government's 9 to be moved into evidence as well. THE COURT: MR. LEE: correct. THE COURT: Is there an objection to that? No. Is that the exhibit there on the easel? That's

It is the diagram on the easel.

MR. KAVANAGH: THE COURT: MR. LEE: deputy. THE COURT: MR. LEE:

Exhibit 9 is admitted.

No further questions at this time for this

Thank you very much.

For -- To clear off his table, can I have

the agent, if he would, remove those items? THE COURT: Yes.

Mr. Kavanagh. MR. KAVANAGH: Thank you. Your Honor, can I approach

and retrieve the exhibits that I noticed? THE COURT: Yes.
CROSS-EXAMINATION BY MR. KAVANAGH:

Q

Good morning.

Deputy Hernandez, you're color-blind?

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A Q A Q

Yes, sir. And poor eyesight? Just for reading, sir. Just in general, general police issues, would you agree

that it's good police procedure to prepare police reports over serious matters soon after they occurred? A Q Yes, sir. That's because your memory is better sooner than later,

correct? A Q A Q Correct. Details are fresh in your mind? Correct. And really there's less chance of forgetting? That's why

you do that? A Q Yes, sir. So in this case, this happened April 15th, 2006, in the

early morning hours, correct? A Q A Q A Q A Q Correct. And you booked John White into jail on those charges? Yes, sir. And you wrote a six-page typewritten report? Correct. On a personal laptop or MCSO issued laptop? Correct. And the report was very detailed? UNITED STATES DISTRICT COURT
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A Q

I would like to think so, yes, sir. But that report was not written until at least three days

later; is that correct? A Q A I don't remember the exact date it was written, sir. Would you need to see your police report to know that? I don't think that would help me as far as when it was

written. MR. KAVANAGH: Your Honor, if I can show the witness

Exhibit 100, which is the police report? THE COURT: Q Yes. Deputy, I'm going to show you what's Can you see

(BY MR. KAVANAGH)

been marked as Defense Exhibit 100 on the screen. that? A Q Yes, sir.

Let me try and zoom in a little bit because I can hardly

see it. Do you see the report number up top 06-61030? A Q A Q Correct. Is that the report that you wrote in this case? Yes, sir. At the bottom of the report, it appears that perhaps a Do you see that?

supervisor reviewed the report. A Q A Yes, sir.

And it looks like it's dated April 18th, 2006? Yes, sir. UNITED STATES DISTRICT COURT

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Q A Q

So the report was reviewed at least three days later? That's when it was reviewed, sir. Correct. Nowhere on this police report does it indicate when

you actually wrote it? A Q A Q A No, sir. Did you write it that very morning? I started writing it after I impounded the weapon, sir. Did you finish it that morning? I couldn't tell you, to be honest with you. I don't

remember. Q A Do you know when you finished it? It would have had to have been between that time and before

the date it was signed by the supervisor. Q A Q A Q A Q Okay. So you took it home and worked on it at your house?

I probably did, sir. You don't remember? I don't remember, no. Is that your routine, to take reports home? On weekends when it's my day, yes, sir. So this was your weekend, and you were working off duty,

and you got involved in police activity, correct? A Q A Correct. So you took that home to do it on your own time? I probably did, sir. I couldn't tell you. I don't

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remember. Q A Did the Blaze pay you to do that or did the county sheriff? Actually I didn't get paid to do that. It wound up out of

my own pocket. Q So it's better to do less police work off duty than more? MR. LEE: Objection, argumentative, Your Honor. The objection's sustained. I want to direct you to Page 5 of your Do you see that, sir?

THE COURT: Q

(BY MR. KAVANAGH)

police report, the very last paragraph. A Q Yes, sir.

It appears that at least sometime in the late morning of

April 17th, 2006, you had not finished your police report; is that correct? A Q Like I said, I couldn't tell you, sir. Well, in your police report you refer to some activity that

you took that day, correct? A Q Correct. So you had to have written this sometime after 11:30 in the

morning April 17th, 2006? A Q A At least that part of it, yes, sir. Did you have notes to go from? If -- I don't remember if I had notes. It's not uncommon

for me to take notes and use them. the report, I just throw them away. Q

But once I get done with

But you can't recall in this case? UNITED STATES DISTRICT COURT

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A Q

I don't.

I don't remember.

You might have taken notes on a little three-by-five card

or something? A Q It probably would have been a pad of paper, yes, sir. Now, the county sheriff's office has a policy about getting

reports in on time; is that correct? A Q Yes, sir, pretty much so. The report or -- excuse me -- the policy regarding felony

in-custody arrests requires that the report be submitted within 48 hours; is that right? A Q A Q A I believe so, sir. This was a felony in-custody arrest, wasn't it? Yes, sir. And you didn't get it in within those 48 hours? I might have gotten the face sheet in. The main thing that

they require is that we get the face sheet in; let them know of the report. Q So you think there may be another report out there that's

not given to the -A No. It would have been that report. I started the report.

Whether I finished it or how far I got done that morning, I couldn't tell you. Q A Q I don't remember.

So you turned in a half completed report? No. The report can't be turned in until it's completed.

So did you turn something in within that 48-hour period? UNITED STATES DISTRICT COURT

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A Q

I don't remember.

I don't remember, sir.

Is it possible you had a handwritten report that you turned

in to substitute? A No. What is possible is that I finished the report, turned

it in, being on my day off, because that's also another procedure we go through. The sergeant, when he comes in, if

it's in his box when he comes in, he'll go ahead and review it and sign and date it at that time. Q But I just showed you where you know that you were still

writing that report at least on April 17th, 2006, at 11:30 in the morning, because you were doing more work on the case. A That part of it. It's also possible that I finished it all And then when I got a call back from the

except for that end.

probation officer, went back, input that information. Q Okay. Well, it's all in your report, six pages. You

didn't do a supplemental to the original, did you? A Q A Q A Q A Q A No, sir. So it was one report? Yes, sir. You don't turn in half-written reports, correct? No. You turn in the whole report? Correct. So you turned in the whole six-page report at one time? Yes, sir. UNITED STATES DISTRICT COURT
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Q

Which -- Deputy Hernandez, you've had problems over your

career turning in late reports, haven't you? A Q I've been accused of it, yes, sir. You've been accused of it. Have you had problems over your

career turning in late reports? A Q A Q Turning in, yes, sir. At least seven out of ten years? Possibly, yes, sir. So you've been counseled at least seven times in your

ten-year to eleven-year career about getting your reports in on time? A Q A No, sir. Is it documented in your employee performance appraisal? I did have one, one supervisor, but that was counseled, but

not seven times, sir. Q Well, it's been in your report -- in your file at least six

or seven times, is that correct, where it was noted? A To be honest with you, sir, I don't know, because I haven't

looked at my report. MR. LEE: I'm going to object to this. We have seen

no file, nothing to back this up.

This is merely the

testifying of the attorney at this point in time. THE COURT: Q The objection is overruled. Are you saying, Deputy Hernandez, that

(BY MR. KAVANAGH)

you have not been noticed in your yearly evaluations about UNITED STATES DISTRICT COURT
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getting reports in on time? A I'm saying that I haven't had seven yearly evaluations that I know I have had at least one, And, like I said, I haven't looked

have mentioned late reports. but I don't remember seven.

at my personnel file, so I couldn't tell you, sir. MR. KAVANAGH: Your Honor, if I can have Exhibits -- I

believe it's B through G, the impeachment exhibits that I marked for my numbering purposes, I would like to refresh the deputy's memory at least, and perhaps he'll remember this. THE CLERK: G? MR. KAVANAGH: B through G, I think. I'm sorry. What did you say? B through

If I can approach, Your Honor? Q (BY MR. KAVANAGH) Deputy Hernandez, can you see that

document on the screen? A Q A Q A Q A Q Yes, sir, I can. And what does that appear to be? It's an evaluation report, sir. I'm sorry? Evaluation report. Dated 2004, correct? Correct. I want to show you Page 3 of that report where it says

Rafael sometimes struggles meeting his deadlines and turning his reports in on time. Do you see that?

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A Q A Q

Which paragraph would that be, sir? I'm sorry. Yes, sir. So at least in 2004, you were put on notice about getting Quality and quantity of work.

your reports in on time? A It says the quality of -- Is that the one? Is that the

paragraph, sir? Q Yes. It's the first paragraph below that paragraph where The second-to-the-last sentence

it says quality and quantity.

puts you on notice that your reports -- you have trouble making deadlines, getting your reports in on time. A Q A Yes, sir. Sure. Because I want to make sure that we're talking about the It says the amount of work performed by -Your Honor, I object. He can read it to Do you see that?

Can I read the whole paragraph, sir?

same paragraph.

MR. LEE:

himself, the rest of the paragraph.

The whole report is

irrelevant, but I'd appreciate it if he'd read it to himself. THE COURT: MR. LEE: one sentence -THE COURT: MR. LEE: Yes, I understand. Mr. Lee, do you want the rest of this -He's taking

Oh, most certainly, Your Honor.

We would like the entire -Excuse me, please.

THE COURT: MR. LEE:

I'm sorry.

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THE COURT:

If you believe that something ought to in

fairness be read at the same time as those portions offered by Mr. Kavanagh, you can request that, and we'll have it all read at the same time. He's trying to have him read, as I I think,

understand it, only Line 3 of the second paragraph. in fairness, the entire paragraph should be read. MR. LEE:

Your Honor, at this time the government

would ask that, for completeness of the record, that the entire paragraphs there under quality and quantity of work -- there's only three -- be read. THE COURT: At this point you've just asked to read Are you going to be

the third line in that second paragraph. using the rest of it as well? MR. KAVANAGH: one sentence. THE COURT: No, Your Honor.

I'm just using that

Yes, I know, but under the Rules of

Evidence, other material in context in order to present a complete picture can be read at the same time on the insistence of the adverse party. sentence is critical. Sir, you can read the entire paragraph to the jury. THE WITNESS: Yes, sir. It says, "The amount of work He works an I should think especially the very next

performed by Deputy Hernandez is above standard.

assortment of beats in District 2 and is exposed to a wide variety of calls for service. Rafael sometimes struggles

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meeting his deadlines and turning his reports in on time. However, this is usually because of the volume of work he performs." MR. LEE: Your Honor, we would also ask for the other

two paragraphs, because the defendant is being -- I'm sorry -THE COURT: MR. LEE: I understand --

The witness is being questioned -I understand what your objection is.

THE COURT:

Could you put the rest of it back up on the screen so I can read the other two paragraphs. THE WITNESS: end of it, sir. little please. THE COURT: Yes. Those two paragraphs do in fact If it can be moved over, I can't see the

You'd have to move it over to the left a

relate to the reports that are referred to in the portion that Mr. Kavanagh read, so you can read the next two paragraphs as well. THE WITNESS: It says, "The quality of Deputy He proofreads his reports

Hernandez' work is above average.

sufficiently and uses his office-issued laptop computer, virtually eliminating errors. Deputy Hernandez' reports are

neat in appearance and contain ample detail to ensure sufficient prosecution. It is obvious that Deputy Hernandez is

alert to details and takes all necessary actions to resolve problems with viable resolution. Further, Deputy Hernandez'

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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

use of vocabulary is clear and concise.

in writing and verbally his message clearly without misunderstanding." Q Same exhibit further back, Deputy Hernandez, what does that

appear to be? A Q It's another employee evaluation dated 2002, sir. So 2002. Is that your evaluation? A Q A Q Yes, sir, it is. And you signed it? Yes, sir. Similar issue. I'm going to direct you to the entire

section, then, certainly for quality and quantity of work. If you can briefly read that, and then when you're done, perhaps focus toward the bottom of the last paragraph. I'll give you a chance to read it. A Q Yes, sir. In 2002 there's another notation where you are having

difficulty getting reports turned in on time; is that correct? A Q Correct, sir. I'd like to show you what's been marked as Exhibit C for my

purposes. MR. LEE: bar? THE COURT: No. What is the objection? All right. Your Honor, can we have a side

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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 this? 2001. 2002.

MR. LEE:

We're going to go -- Now we're back into

We've already discussed his report from 2004 and from We're just curious. It just seems irrelevant at this

point in time. THE COURT: MR. LEE: So the objection is relevance?

That's correct. Mr. Kavanagh, what is the relevance of

THE COURT:

MR. KAVANAGH:

Your Honor, the report in this case was It was turned in late.

turned in outside of policy limits. THE COURT:

What is the relevance of it? Judge, it's a memory issue, and he's

MR. KAVANAGH:

had that problem for his whole career turning in late reports. And I asked him whether or not he had notice of that over his career, and he said once. If he said six, we'd be done. MR. LEE: This has absolutely -Excuse me, please. I didn't invite any

THE COURT: response. MR. LEE:

I'm sorry, Your Honor. This is of marginal relevance. And how

THE COURT:

many more -- Do you have many more of these? MR. KAVANAGH: Judge, I've got six of them, but if the

deputy would certainly acknowledge that, yeah, he had six issues -UNITED STATES DISTRICT COURT
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THE COURT: lengthy reports.

Well, but they're snippets out of very

And in fairness to the witness, he ought to

be given an opportunity to read the whole paragraph in which you find it. I'm going to overrule the objection and allow you to have this -- have him read these paragraphs to the jury if you want him to. MR. KAVANAGH: MR. LEE: Okay. Thank you.

Your Honor, could I -But the whole thing, not just what it is

THE COURT:

that you're focusing on, because taken out of context, it doesn't fairly characterize his performance. MR. LEE: different grounds. material. What is it?

Your Honor, I would like to object on This is supposed to be impeachment

None of this goes to his ability, his truthfulness, We are essentially parading his

veracity, and how he works.

entire background for the Court and for the jury, which could be done in any case, and yet there is nothing here that demonstrates that he has done something that indicates that he has been -- that he has lied or miscommunicated in any way, shape, or form. lacking. THE COURT: I do think the question of these reports So as for impeachment material, this is

is marginal -- The timeliness of the particular report is not in question in this case, is it? And you're not going to move

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the report in evidence, are you? MR. KAVANAGH: THE COURT: The police report?

Yes. I don't think so, Your Honor. What are

MR. KAVANAGH: THE COURT:

So what is the relevance of it?

we -- What did he say on direct examination that was based upon the report or -- I'm trying to do a 403 weighing here. MR. KAVANAGH: I appreciate that, Your Honor. His

testimony is not 100 percent accurate with his police report. My point is this report was not written -THE COURT: You're welcome -- If he says something

here on direct examination that's different from what is in his police report, you can impeach him with his police report. But

so far you're just going back in time picking out snippets in prior performance appraisal evaluations about the timeliness of reports. And I don't understand the relevance of the

timeliness. MR. KAVANAGH: Judge, I think it also would go toward

his bias and motive in this case here as well, because I am challenging the timeliness of this report. he said, to write them on time. He didn't do that in this case, and he hasn't done it throughout his career. And if he's saying he only had been It's important, as

counseled or put on notice one time, well, it's significantly more than that, and I'm just trying to show that. UNITED STATES DISTRICT COURT
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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 hours. it. he?

THE COURT:

As I understand it -- and you correct me

if I'm wrong -- the incident occurred on April 15, which is a Saturday, correct? MR. KAVANAGH: THE COURT: Yes, sir.

And on a Monday he's in finishing the

report on the 17th, and on the 18th his supervisor has reviewed it and noted it. And where is the foundation that it's even tardy? MR. KAVANAGH: Well, I asked him on cross just before

I started doing this whether or not there was a county policy to get felony in-custody arrests in within 48 hours. yes. It didn't happen in this case. THE COURT: Well, we don't know that he didn't have He said

I mean, he could have turned it in on the 17th, couldn't

MR. KAVANAGH:

That still would have been more than 48 He doesn't know when he

But he doesn't know that.

turned it in. THE COURT: a Sunday and do it? MR. KAVANAGH: THE COURT: Why not? What was he going to do? Go down there on

I think this is of marginal relevance, and I think you've made

I'm going to exclude it under Rule 403.

your point that, in your opinion, that you think that the police report that he wrote in connection with this case was -UNITED STATES DISTRICT COURT
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what? -- late? MR. KAVANAGH: THE COURT: Late and outside of policy. I think you've made that point

All right.

with what you've already shown this jury. MR. KAVANAGH: The other point, Your Honor, is that

when I asked him, he said it happened one time in his career. I'm saying I've got proof that it happened at least six times. THE COURT: And what is the significance of that? Now it goes to credibility.

MR. KAVANAGH: THE COURT:

I t