1

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

----------------------------X

UNITED STATES OF AMERICA

v. Case No. 10-MJ-739

DANIEL CHOI,

Defendant

-----------------------------X Washington, D.C.

Wednesday, October 17, 2012

2:05 P.M.

TRANSCRIPT OF MOTIONS HEARING

BEFORE THE HONORABLE JOHN M. FACCIOLA

UNITED STATES MAGISTRATE JUDGE

APPEARANCES:

For the Government: Angela S. George, AUSA

U.S. ATTORNEY'S OFFICE

555 Fourth Street, NW, Room 4444

Washington, DC 20530

(202) 252-7758

For the Defendant: Daniel Choi, Pro Se

565 Pennsylvania Avenue N.W.

Washington, DC 20001

Court Reporter: Lisa Walker Griffith, RPR

U.S. District Courthouse

Room 6507

Washington, D.C. 20001

(202) 354-3247

Proceedings recorded by mechanical stenography, transcript

produced by computer.

2

1 P R O C E E D I N G S

2 THE DEPUTY CLERK: This is case number 10-739-M.

3 United States of America versus Daniel Choi. Angela George

4 for the government. Daniel Choi is representing himself as

5 counsel. This is a motions hearing.

6 THE COURT: Good afternoon.

7 LT. CHOI: Good afternoon, Your Honor.

8 MS. GEORGE: Good afternoon, Your Honor.

9 THE COURT: I was wondering if I could understand

10 this a little better if the clerk put on Elmo 24 and 25.

11 Turn the monitor to you, Lieutenant, so you can see

12 it.

13 If the parties would turn their attention to exhibit

14 24. You can zoom out so we can see the number at the bottom.

15 That document bears a sticker in the lower right

16 hand corner. I take it then, as you explained in your

17 opposition, Ms. George, that actually if not used as exhibit

18 was available at the trial because it was marked with a

19 sticker; is that right?

20 MS. GEORGE: Yes, Your Honor.

21 THE COURT: All right. Then would you put -- do you

22 agree?

23 LT. CHOI: No, Your Honor. I was not given that,

24 nor was my counsel. And I can provide affidavits thereto.

25 THE COURT: Let's see if we can figure this out.

3

1 Please put up 25.

2 Again, Ms. George, that bears the 25 sticker, right?

3 MS. GEORGE: Yes.

4 THE COURT: And you tell me in your opposition that

5 it was marked as an exhibit even if it may not have been

6 introduced. But on the basis of that, you say unquestionably

7 it was available to the defendant.

8 MS. GEORGE: Yes, and I believe the transcript

9 reveals that the Court made copies for the defendant and his

10 defense counsel.

11 THE COURT: All right. Now would you put up the

12 last document.

13 Now this document does not bear the government

14 sticker. And let's, for the purposes of our discussion,

15 let's call it the Bond memorandum.

16 I imagine, Madam Clerk, we ought to mark it with an

17 exhibit here as Court's Number One. Court's Number One is an

18 e-mail from, it is an e-mail string culminating in Lasada

19 from Coffey to Lemasters. The third e-mail in the chain is

20 from Bond to certain people. And as indicated, indicates he

21 has it on pretty good authority and so forth.

22 Now, this one does not bear a sticker.

23 MS. GEORGE: That is correct, Your Honor.

24 THE COURT: But I take it from your opposition that

25 some time in August of 2011, after the trial but before the

4

1 consideration of the Petition for Mandamus to Judge Lamberth,

2 the Department of Interior, in response to a subpoena,

3 produced this document. It's at page three and four of your

4 opposition, Ms. George, you give the history of this.

5 MS. GEORGE: Yes, not the Department of Interior.

6 It was defendant's counsel, former counsel, Mr. Feldman who

7 served a subpoena on the Secret Service.

8 THE COURT: I'm sorry, the Secret Service and this

9 is the response.

10 MS. GEORGE: Yes, they turned the subpoena and a,

11 I'm sorry, the e-mail and a cover letter, Court's Number One

12 exhibit, over to Mr. Feldman, I believe it was, on September

13 21, 2011.

14 THE COURT: At that point, the mandamus petition was

15 pending before his honor?

16 MS. GEORGE: That's correct.

17 THE COURT: And you explained to me in your

18 opposition that this document, which we're calling the Bond

19 e-mail but let's call it Court Exhibit Number One, it was

20 made an exhibit and presented to Chief Judge Lamberth?

21 MS. GEORGE: The defendant attached it to one of his

22 filings before, I think it was the D.C. Circuit because if

23 the Court will recall, he filed a petition for Mandamus

24 prohibition, as well as an appeal. And I believe he attached

25 it to the petition for Mandamus prohibition as an exhibit.

5

1 THE COURT: It is your understanding, Ms. George and

2 you represent to the Court, that 24 and 25 were

3 unquestionably made available to the defendant either before

4 or at the trial because they bear a court sticker indicating

5 they were used at the trial in some way.

6 MS. GEORGE: That is correct, Your Honor.

7 THE COURT: But Lieutenant, you disagree?

8 LT. CHOI: Yes, Your Honor. It was exhibit number

9 25, which I believe is the Randolph Myers memorandum e-mail

10 to U. S. Park Police Sgt. Timothy Hodge which was presented

11 to me. Copies were not made. We transcribed by hand in

12 court 24, which was the U. S. Secret Service Lemasters,

13 titled AUSA George, here is how we found out, Sgt. Lemasters

14 told us. We never got that. I never received that until,

15 particularly in the useable form, until I became pro se and I

16 asked AUSA George to please give me all discovery because my

17 counsel did not give me the complete document. She gave that

18 to me the day before trial in 2012, August 29.

19 THE COURT: Okay. But Ms. George, you know from the

20 transcript that Mr. Feldman used 25 or at least referred to

21 having it in his possession.

22 MS. GEORGE: That's correct, Your Honor.

23 THE COURT: All right. But may not have given it to

24 Lieutenant Choi.

25 MS. GEORGE: That is totally possible.

6

1 THE COURT: Whatever the situation is, we are, we

2 have the common ground that Court's One was not made

3 available until the Mandamus petition had been filed and it

4 was before the Court, right?

5 MS. GEORGE: That's correct, Your Honor.

6 THE COURT: Now, am I correct, Lt. Choi, that it is

7 your contention that the failure to give you Court's One, the

8 Bond e-mail, constitutes a breach of Ms. George's

9 obligations, the obligations of the United States to provide

10 you with information that's exculpatory and therefore you,

11 from which you deduced the conclusions that the case should

12 be dismissed or a mistrial granted or other relief. Is that

13 right?

14 LT. CHOI: Your Honor, I do believe there was a

15 breach based on exculpatory as well as other issues. And

16 I've never asked for a mistrial, but I have asked for

17 dismissal with prejudice, yes, Your Honor.

18 THE COURT: All right. Now, and the premise of that

19 dismissal is that the Court's One would tend to exculpate

20 you. Is that right? That's the fundamental requirement of

21 Brady violation.

22 LT. CHOI: Yes, Your Honor, that's primary argument.

23 THE COURT: So how did it prejudice you by not

24 having that?

25 LT. CHOI: Thank you, Your Honor.

7

1 I believe that the prejudice is simple to see when

2 AUSA George repeatedly reminds us that this trial has gone up

3 to the Court of Appeals. It has even gone back down from the

4 Supreme Court.

5 If it were for this information, Brian Bond, Brian

6 K. Bond, the White House gay liaison, a political appointee,

7 not a police officer, writing to high level appointees,

8 political civilian appointees, not police officers, AUSA

9 George herself concedes and argues -- well, arguably says

10 that in her motion to quash subpoenas, these are individuals

11 second to the President of the United States.

12 Why are they on this e-mail, Your Honor, is the

13 question that I could have used if we assumed that rule

14 12(b)(3)(A) of the Federal Rules for Criminal Procedure do

15 apply, which I still argue against, I would say I could have

16 filed a motion based on First Amendment rights, restrictions

17 of time, place and manner, all of that.

18 The constitutionality here is in question because

19 the charge itself, not the charging instrument or however

20 Ms. George wants to dance around it, but the charge itself

21 that we have to prove in the trial of the general matter

22 necessitates this kind of an argument.

23 If I would have known that, then I could have cross

24 examined or I could have had my counsel, and I've had

25 multiple, cross-examine AUSA George's direct examination,

8

1 question of the witnesses brought by the government. That, I

2 cannot go back in time. Nor can I go back in time and file

3 pretrial motions.

4 I don't want to get into what Chief Judge Lamberth

5 has mandated. I don't think it is relevant. I have made

6 very clear that I'm not going to bring that up. But for sake

7 of argument, I believe that if indeed I had this information,

8 I could have put that, not only in my response to the

9 petition once this trial was continued about 700 days ago,

10 but I could have done it before trial.

11 Maybe the day after these wrongful arrests were

12 effectuated, maybe I could have known. I believe I deserved

13 to know mostly because I can't go back in time. I believe

14 this here is probative, highly probative of a view point

15 discrimination, content bias and invidious prior restraint.

16 The case law on that is very clear. AUSA George

17 even notes that Perry Educators Association versus Perry

18 Local in 1985, in footnote six, she talks about form

19 analysis, she talks about something in free speech. She has

20 also brought up in trial, Your Honor, on multiple occasions,

21 free speech, as necessary to the trial. She asked the

22 questions herself.

23 I would have liked to know that my fellow gay

24 American invidiously wanted to restrict my free speech. I

25 would have liked to know that. If I would have known that,

9

1 then the Mandamus I do believe would not have been granted.

2 If I would have known that, it would have helped me in the

3 cross examination. We can't go back in time, Your Honor.

4 That's why I think the only thing that is left for us is a

5 motion to dismiss with prejudice.

6 THE COURT: Let me parse this a bit. You have to

7 look very carefully at the Chief Judge's opinion of October

8 11, 2012. And the order that explicitly defines what I am

9 and am not permitted to do.

10 Look at this order which I have now popped up on the

11 screen. He said: The petition is granted, the mandamus

12 issues, and Facciola is prohibited from considering selective

13 or vindictive prosecution as a defense to the merits,

14 allowing the evidence as to either claim, entertaining any

15 motion filed by respondent to dismiss the information based

16 on selective or vindictive prosecution, and considering sua

17 sponte dismissal based on selective or vindictive

18 prosecution. End of quotes.

19 The Chief Judge has never been accused of being

20 ambiguous when he issues an order. That's about explicit as

21 it gets in precluding Facciola from considering the very

22 motion you are making. Isn't that true?

23 LT. CHOI: No, Your Honor. I believe the historic

24 understanding of selective and vindictive prosecution is

25 quite clear from Yick Wo versus Hopkins in 1886 to the

10

1 present date. This is not selective and vindictive

2 prosecution. Nor can Judge Lamberth, nor can AUSA George

3 read into this order an excisement or an excision of First

4 Amendment free speech analysis, Your Honor. None of this

5 evidence that I am going to adduce once trial does ever begin

6 will go in contradiction to this order.

7 Your Honor, I believe--

8 THE COURT: You were going to say I thought that

9 Bond, in the memorandum we saw, Court's One, Bond was

10 involved in what you claim to be a political decision to

11 single you out for special treatment because of the content

12 of your speech.

13 Well, the premise of that is speech related. It

14 falls precisely under the notion of selective prosecution in

15 the same way that under Yick Wo versus Hopkins. The Chinese

16 man was singled out for behavior because of the way he

17 dressed. In subsequent cases, singling out people because of

18 what they say in my view would be the typical example of a

19 selective prosecution. That's what the word means.

20 That's exactly what the judge said we can't do.

21 LT. CHOI: I respectfully disagree, Your Honor,

22 because Yick Wo was not in fact in the case law of the same

23 court that decided I believe Dred Scott, did not invidiously

24 prior restrain Mr. Yick Wo or Mr. Wo Lee afterwards for free

25 speech or the way they dressed.

11

1 It was, as far as I recall in reading the case law,

2 it was an intermediate economic interest, his ability to, and

3 you are right, Your Honor, in that it was behavior, to

4 establish an entrepreneurial enterprise of a wooden laundry

5 facility. Had nothing do with free speech; had nothing to do

6 with how he dressed.

7 THE COURT: Let's put your quote to one side. The

8 point of what I thought the chief judge was saying was that

9 your counsel on your behalf was arguing to Facciola that he

10 should be permitted to produce evidence and cross-examine to

11 show that you were singled out. You were not prosecuted in

12 the Superior Court like many other protestors, but was

13 singled out for prosecution in this Court. And that was

14 because you had taken public positions offensive to the

15 powers that be with reference to an issue of social policy.

16 You, therefore, said you wished to do that.

17 Facciola said he could. Ms. George objected and secured

18 mandamus. The chief judge said quotes, John Facciola is

19 prohibited from considering selective or vindictive

20 prosecution as a defense of the merits of the prosecution,

21 which is an explicit and precise reference to the very

22 argument that is being made by your counsel on your behalf.

23 LT. CHOI: Your Honor, I do agree that selective and

24 vindictive prosecution are precise legal terms. I'm not

25 intending here to bring up, if we were to take the argument

12

1 even further, demagogic prosecution or other kinds of

2 illegal, I think what might be adduced or inferred from this.

3 I'm not trying to do that, Your Honor. I'm simply trying to

4 assert a constitutional right, First Amendment when trial

5 begins.

6 I have also quoted case law from Wayte versus the

7 United States which is perhaps the only selective prosecution

8 case that we have. Wayte is I believe 1985. That talks

9 about both free speech and selective prosecution.

10 But the order itself from the Supreme Court even put

11 selective prosecution in a completely different paragraph of

12 analysis from, and that was paragraph three, that paragraph

13 four, that's at page 607 to 613. I do not agree. I do not

14 agree that what I'm trying to do here is selective

15 prosecution. I will argue that until I'm blue in the face,

16 Your Honor. This is Brady.

17 THE COURT: Okay. Let's put this in a broader

18 context. In his memorandum opinion, the chief judge looked

19 at rule 12(b)(3) and he specifically discussed how it

20 operates. And how it divides, if you will, all the potential

21 defenses, objections or requests into two categories, those

22 which under the rule may be raised by pretrial motion that

23 the Court quotes " --can determine without a trial of the

24 general issue." He then goes on to say, in accordance with

25 the very same rule, that the failure to assert them under

13

1 rule 12(e) by that motion, the 12(b)(3)(A) Motion,

2 constitutes a waiver.

3 He specifically, therefore, indicates that your not

4 raising questions of the defect of the proceeding, whether

5 they were statutorily based or constitutionally based, before

6 the trial began constituted a failure on your part that could

7 not be, happens to be held against you and constituted a

8 waiver.

9 But then he did something even more interesting. He

10 went forward and he said to Facciola another thing. While

11 12(b)(3) permits or grants the Court an opportunity to

12 consider the motion in the mid-trial, it is only if good

13 cause can be shown. That's under rule E, for good cause, the

14 Court may grant relief from the waiver.

15 He goes on to find as a matter of fact or as a

16 matter of law, that this Court, quotes -- this is page 15 of

17 his opinion -- seeing absolutely no basis in the record for

18 finding of good cause, agrees.

19 Then he goes on to say, these arguments,

20 constituting arguments made by the defendant, defy reasonable

21 belief and thus Magistrate Judge Facciola could not find

22 cause to excuse a rule 12(e) waiver. The magistrate thus has

23 a clear duty not to consider the motion to dismiss on the

24 basis of selective or vindictive prosecution either sua

25 sponte or in motion by the respondent.

14

1 So I don't know how the chief judge could have been

2 clearer than to say that any motion to be made that did not

3 require the trial of the general issue, any motion that spoke

4 to a constitutional or other defect in the initiation and the

5 maintenance of the prosecution had to be raised before trial.

6 That precludes Facciola from considering it no

7 matter what its nature is, whether it is based on the due

8 process clause, equal protection or the First Amendment. I

9 think, I don't know how you could say it any other way

10 because his ruling is so unequivocably clear.

11 LT. CHOI: Your Honor, in that case, if it is your

12 decision to consider these two motions of a similar nature

13 and legal status, then I believe that's something for a

14 higher court to entertain. And I believe when the higher

15 court did entertain our appeal of the mandamus, it simply

16 said that upon conviction you can come back but did not touch

17 any of the merits of our argument.

18 THE COURT: That remains to be seen. But that's

19 above my pay grade. I don't know anything about that.

20 Okay. Thank you.

21 Ms. George, did you want to be heard?

22 MS. GEORGE: Just briefly, Your Honor.

23 First the government just wants to establish for the

24 record that Government's Exhibits 24, 25, the defendant was

25 not entitled, pursuant to rule 16 or Jencks or any other

15

1 evidentiary theory, to receive these prior to trial. I think

2 I did state that in my opposition to the defendant's motions.

3 I just wanted to reiterate that because the

4 defendant has claimed that we failed to turn those over.

5 Actually the government had no obligation under rule 16 or

6 any other evidentiary theory to turn them over.

7 In addition, the defendant at the tail end of his

8 argument before the Court said that these e-mails or that

9 this, his argument is Brady. And I'd just like to argue

10 again to the Court, as we did in our opposition, that the

11 defendant has not made any threshold showing that the

12 information in the e-mails or the e-mails considered together

13 as a whole include any exculpatory information indicating

14 that they--

15 THE COURT: Before you make that argument, if I may,

16 Ms. George, is that argument to even be considered given the

17 mandate?

18 MS. GEORGE: I would agree in this sense, Your

19 Honor. If you look at the substance of the argument, the

20 government would agree with the Court. That the substance of

21 Mr. Choi's argument, which is the argument that I made in our

22 opposition, is basically a selective and vindictive

23 prosecution argument.

24 But the government feels compelled to respond to the

25 Brady claim because he has attached that label to it. I

16

1 think we did sufficiently in our opposition. And I just

2 wanted to state on the record that he has made no threshold

3 showing that any information in the e-mails would tend to

4 indicate that he did not fail to obey a lawful order or would

5 impeach any witness that testified at trial or is going

6 testify at trial.

7 THE COURT: Narrowly what does Court's Exhibit One

8 provide that 24 and 25 do not? I mean, the rhetoric of

9 Court's Exhibit One is a bit snarkier.

10 MS. GEORGE: It is.

11 THE COURT: And demeaning. But if the argument

12 could be considered, I have your point. But I would like you

13 to tell me whether that, if it is a Brady violation, or

14 claimed Brady violation, does it take it out from under the

15 mandamus order that we've been looking at.

16 MS. GEORGE: The government will say no, Your Honor,

17 because of the substance of the defendant's argument. If he

18 had facts that would legitimately support a Brady claim, then

19 the government's response may be different. But his facts do

20 not, even from a basic level, support an allegation that the

21 government engaged in a Brady violation.

22 THE COURT: Then you would say, correct me if I

23 misunderstand you. But you would say, even if he could make

24 the motion now -- a mid-trial motion for mistrial, or he

25 doesn't want a mistrial, he wants a dismissal -- he would not

17

1 be able to show prejudice.

2 MS. GEORGE: That's correct, Your Honor.

3 THE COURT: Court's Exhibit One does not add

4 anything that 24 and 25 does not say.

5 MS. GEORGE: That, and we are mid-trial. I mean, he

6 is making effective use of all of the e-mails at this point

7 in time. And the trial has not been concluded.

8 THE COURT: It also seems to be true that any

9 further use of those e-mails is beared by the mandamus.

10 MS. GEORGE: That's the government's argument, Your

11 Honor.

12 THE COURT: That the defense is now taken out of

13 this case.

14 MS. GEORGE: Yes, Your Honor.

15 THE COURT: Lieutenant, if you want to address that

16 issue, I would appreciate your thoughts. As you just heard

17 Ms. George say in response to my question, Court's Exhibit

18 One does not add anything that we don't already know from 24

19 and 25. So even if your motion could escape from under the

20 mandate, it would have to be denied on its merits.

21 LT. CHOI: Yes, Your Honor. I do object very

22 strongly. I disagree very much with the notion that the

23 prosecution can make effective use and have it within her

24 knowledge, within their knowledge, but I can't from here on.

25 So, I think maybe, Your Honor, to just cut to the

18

1 chase, it might be better just out of fairness to strike all

2 testimony so far by which I have not had the chance to

3 cross-examine. Then we can move on from there. That might

4 be the only fair way to go about this. But I do think that--

5 THE COURT: Wait a minute. You've turned the clock

6 back a bit. The reason Ms. George got me reversed in

7 mandamus was because I had permitted, over her strenuous

8 objection, Mr. Feldman to pursue in his cross examination the

9 legitimacy of your prosecution and whether you were singled

10 out for unique treatment because of the views you expressed.

11 But Mr. Feldman went on to great length. Indeed,

12 even review of the small portion of the transcript I have

13 indicates, that I've looked at because I have not reviewed

14 the whole thing, indicates that he pursued that quite

15 vigorously.

16 LT. CHOI: And so did AUSA George.

17 THE COURT: Mr. Feldman did everything quite

18 vigorously. But put that to one side, he certainly didn't

19 hold back from attacking the validity of the prosecution on

20 the grounds that you had been singled out because of your

21 views on this particular issue.

22 LT. CHOI: Yes, Your Honor. I do believe that, and

23 I agree that I have not at this point given the factual bull

24 work enough to lay on and to stand upon this motion. For

25 that reason, I wanted the testimony of a number of government

19

1 officials. They would have lasted maybe only a minute or two

2 minutes, Your Honor. I simply wanted to know why they were

3 on that e-mail.

4 I would offer Your Honor right now, I believe it is

5 Bagley, the case law that very explicitly says, without the

6 full evidence or the full trial record, it is impossible to

7 decide whether a Brady violation occurred or not.

8 I believe your analysis is correct, Your Honor. If

9 we were to go back or if there was a mistrial, I wouldn't

10 have this, it would prejudice me greatly. All I simply

11 wanted, and I didn't have a chance, Your Honor, to file an

12 opposition. The honorable clerk didn't notify me yesterday,

13 that it was just simply too late.

14 AUSA George filed the Motion to Quash on Friday at

15 midnight I believe. I was traveling and speaking at Seattle

16 University and attending a funeral for the first lesbian

17 service member married to die in Afghanistan. And I tried to

18 file it yesterday. I'm not finished with it. I contest all

19 of the--

20 THE COURT: If you would like me to postpone ruling

21 on it, I'll give you the opportunity to finish it and get it

22 in. Please don't feel -- I don't want you to feel that

23 you've been deprived of any right. If you need a little more

24 time to do it, take it.

25 LT. CHOI: Your Honor, I am a little bit confused.

20

1 If I could take a little detour here. I did want, when and

2 if trial resumes, to have all of those subpoenas continued.

3 And that AUSA George be in charge.

4 THE COURT: We'll talk about that in a moment. I

5 have your point. Please go ahead.

6 LT. CHOI: Thank you.

7 I do believe that when we talk about, in your words,

8 the snarkiness of Mr. Brian K. Bond, you have to see in

9 proper context exactly why he came to that point. My message

10 was very different from his. And that's it.

11 So, First Amendment analysis is now, if that's what

12 are saying, Your Honor, excised from the trial, we would rest

13 on just a couple of more points on as far as what I believe

14 is Brady, and what I believe goes to the exculpatory nature

15 of certain evidence which was not transmitted to me or handed

16 to me, particularly objects such as keys to handcuffs or

17 handcuffs themselves.

18 Your Honor, these are my handcuffs that I'm holding.

19 When we went through the trial to discuss whether I was an

20 emergency, national security emergency to the public, we were

21 listening at length, for a great length of time, arguments as

22 to supergluing from Robert Zarger or not. And now I'm asking

23 AUSA George repeatedly, repeatedly through emails, can I

24 get the handcuffs please, AUSA George.

25 I'm extremely frustrated at this point, Your Honor.

21

1 I'm not trained as a lawyer. I just believe that, if they

2 won't make the argument that my handcuffing myself is

3 allegedly a national security emergency threat, disruptive or

4 whatever verb they used, then I believe I should have access

5 to those objects.

6 I believe that Lt. LaChance, the chief witness of

7 the prosecution to the charge itself, was testifying that,

8 yes, we threw them away. Now Angela George parades into the

9 courtroom as she has many times --

10 THE COURT: You don't need language like that.

11 We're all trying do a job.

12 LT. CHOI: Your Honor, I'm sorry. I withdraw that.

13 As far as many occasions now, AUSA George has come

14 here representing to this Honorable Court that I did have

15 access to all relevant objects. And I disagree completely,

16 Your Honor. That itself is a separate Brady point and there

17 are more.

18 THE COURT: Okay. Thank you.

19 Ms. George, did you want to speak briefly?

20 This is the first I've heard of the handcuffs. I'm

21 sorry.

22 MS. GEORGE: That's fine, Your Honor. Mr. Choi

23 e-mailed me and asked me for the handcuffs in the case. And

24 as I explained to Mr. Feldman, I believe the transcript

25 reflects that Mr. Feldman asked for the handcuffs and noted

22

1 that he would just ask for a missing evidence instruction.

2 There are no handcuffs in relationship to November 15, 2010.

3 I responded to Mr. Choi's e-mail before he came to court

4 today and explained that to him.

5 He also sent an e-mail several weeks ago, asking me

6 how he could obtain or reobtain the custody of his handcuffs.

7 The government has handcuffs with reference to an April 20,

8 2010 incident which is not the subject of this trial.

9 And so I did explain to him that we did not have the

10 handcuffs. And that he has not been denied access to them

11 because we don't have them. He certainly could view the

12 other handcuffs at the U.S. Park Police Property Division.

13 And I would give him information about how he could do that.

14 THE COURT: I also asked, issued some orders

15 yesterday to clean up the docket and before we finish and I

16 take a brief recess, I would appreciate your views. One was

17 57. It is a supplemental motion to produce evidence or

18 proper control receipts. I take it that was made by

19 Mr. Feldman on Mr. Choi's behalf.

20 MS. GEORGE: I think it was Mr. Kent.

21 THE COURT: Then number 58 is a supplemental motion

22 to certify judicial notice upon Mr. Daniel Choi. Can you get

23 me there? They seemed to have gotten lost in the shuffle as

24 the mandamus petition went on through other ways.

25 MS. GEORGE: May I grab my stack of those pleadings,

23

1 Your Honor?

2 THE COURT: Sure.

3 MS. GEORGE: Your Honor, I cannot find my copy. One

4 of the pleadings that the Court referenced did reference

5 handcuffs. So I think that it is not related. I went

6 through each one before I came to court so I could let the

7 Court know whether we objected to the Court's proposed

8 resolution.

9 So the motion to produce this specific document is

10 in reference to the evidence property control receipt in

11 reference to November 15, 2010. I supposed -- I didn't speak

12 to Mr. Kent about this specifically but I suspect he was

13 trying to ascertain the location of the handcuffs.

14 And when he filed this, I did explain to at least

15 Mr. Feldman I believe and it may have been Mr. Kent, that

16 there weren't any handcuffs. So, this document is not

17 specifically related to the mandamus order from Chief Judge

18 Lamberth.

19 THE COURT: Now, it is followed in the docket by 58,

20 which is described as a Supplemental Motion to Certify

21 Judicial Notice by Daniel Choi. What is that about and did

22 you ever respond to that or reply to it?

23 MS. GEORGE: I did not respond to this. This was in

24 reference to the selective vindictive prosecution claim that

25 they were making. If the Court recalls, they called Capt.

24

1 Beck to the stand and asked several questions about the March

2 18, 2010 and April 20, 2010 incidents prior to the instant

3 offense date, November 15, 2010, because it says here that

4 the defendant is raising a defense of impossibility.

5 And that brings the government to docket number 55

6 which was the Government's Motion in Limine in which, prior

7 to trial, the government received information that the

8 defendant would be arguing that, because he was handcuffed to

9 the fence, he could not comply with the order, which is

10 specifically referenced in paragraph two of document 58.

11 THE COURT: What does it ask the Court to take

12 judicial notice of in the context of your understanding it?

13 MS. GEORGE: I guess items one, two and three, Your

14 Honor.

15 THE COURT: Would you put it up on the Elmo please?

16 MS. GEORGE: Certainly.

17 THE COURT: So this speaks to an evidence or

18 property control receipt associated with the arrest of the

19 defendant on March 18, 2010.

20 MS. GEORGE: Uh-huh.

21 THE COURT: Said document is outside the scope of

22 the complaint. Its authenticity and validity is not in

23 question. So I'm being asked to take notice of official

24 court documents and records. I'm afraid I don't understand

25 what court records and documents I'm being asked to take

25

1 judicial notice of.

2 MS. GEORGE: It is not a court record, Your Honor.

3 It is a U.S. Park Police property control receipt. And

4 without Mr. Kent being here, I can't specifically attest to

5 what he's--

6 THE COURT: Have you ever seen it?

7 MS. GEORGE: I have it. I have the property control

8 receipt. But the government would argue it is not relevant

9 to the defendant's innocence or guilt with reference to

10 November 15, 2010. And that it should not be--

11 THE COURT: Would you put 57 up please, supplemental

12 motion.

13 There is the demand for, this is the control receipt

14 evidence property.

15 MS. GEORGE: In reference to November 15, 2010.

16 Same document but different offense.

17 THE COURT: Defense offenses.

18 MS. GEORGE: Right.

19 THE COURT: What happened to this? Did you give him

20 this?

21 MS. GEORGE: Did I give him the document in document

22 57?

23 THE COURT: Yes.

24 MS. GEORGE: No, because there are no handcuffs.

25 THE COURT: But is there a receipt for property that

26

1 was taken from the defendant at the time of his arrest? Is

2 that what this is looking for? I realize this is awkward

3 because Mr. Kent is not in this case anymore. But I can't

4 figure out for the life of me what he wants.

5 MS. GEORGE: I don't know. The government doesn't

6 have any handcuffs. I explained that to Mr. Feldman. And I

7 believe Mr. Kent was here one day when I also explained that

8 to him.

9 I did have handcuffs present during trial. But

10 those handcuffs were in reference to April 20, 2010. And

11 mr. Feldman, as I stated to Mr. Choi, refused to look at

12 them, to view them. And he has all the other documents, the

13 evidence property control receipts that he actually has a

14 copy of it, Mr. Choi, that is referenced in document 58. I

15 turned over a huge notebook of police paperwork to Mr. Choi

16 after he requested full discovery again before the trial

17 resumed.

18 THE COURT: Lt. Choi, what is this all about? What

19 was Kent looking for? It is not clear. I'm trying get this

20 docket in order and I'm a little lost.

21 LT. CHOI: Your Honor, he wanted to know why the

22 evidence was missing. And he wanted to know custody of who,

23 as Lt. LaChance said on August 29, 2011, page 39, lines 10

24 through 17, that they were thrown away at the scene.

25 Mr. Kent simply wanted to know what charges he could possibly

27

1 make as far as missing evidence.

2 But now I raise it, Your Honor, because the

3 prosecution is positing that there was super glue in some. I

4 supposed that goes to a mens rea argument. It raises serious

5 doubt as to whether I was, by my protest, offensive to

6 national security on November 15th.

7 But the reason why I bring it up, Your Honor, is

8 also, and I quote from United States versus Bryant from the

9 D.C. Circuit 1971. That normally they put these evidence in

10 ziploc bags for trial. And when the prosecutor loses or

11 leaves important evidence, the trial may file sanctions or a

12 missing evidence instruction.

13 And here in this case could because there is no

14 jury, that goes to a new motion, Your Honor, that based on

15 the prosecution's inability to produce either the handcuffs

16 or proof that some government agents, including U. S. Park

17 Police for whatever reason, threw away important evidence.

18 I also wanted to ask that of some of the witnesses

19 here, Your Honor, today. But that is why I raise it.

20 THE COURT: Okay. Thank you.

21 The problem with 59 and 61 is 59 is filed by Mr.

22 Kent. It says Motion for Reconsideration of Defendant's Ore

23 Tenus, O-R-E T-E-N-U-S, motion to dismiss; that 61 is a

24 motion to withdraw document for reconsideration by Daniel

25 Choi filed by Mr. Kent as well.

28

1 Ms. George, by 61, do you understand that Mr. Kent

2 on Lt. Choi's behalf was withdrawing 59? If he was, why did

3 he use different names?

4 MS. GEORGE: I have no understanding of what he

5 meant, Your Honor.

6 THE COURT: Just proves the old point: If you really

7 want to confused things, use Latin. What is ore tenus?

8 LT. CHOI: Oral argument, Your Honor.

9 THE COURT: Oral argument? No, that's impossible.

10 LT. CHOI: Yes, Your Honor. I believe he also made

11 other motions related to the mandamus hearing where he said

12 ore tenus, oral I believe holding to -- he wanted to

13 supplement them.

14 THE COURT: But that's in any event, that appears to

15 be moot. You don't have any objection to those being

16 dismissed as moot since the motion by the writ of mandamus as

17 been resolved by another court?

18 LT. CHOI: We'll bring it up to another court.

19 THE COURT: All right. I am going to take a brief

20 recess. We'll be back in five minutes.

21 LT. CHOI: Your Honor, we have one more thing.

22 MS. GEORGE: Your Honor, before the Court leaves, I

23 have a courtesy copy of the transcript for the Court which I

24 also provided to Mr. Choi.

25 THE COURT: Thank you, that is very gracious of it.

29

1 LT. CHOI: One final thing. I'd like to put, I

2 wanted to make it a defendant exhibit.

3 THE COURT: Mark it as Defendant's Exhibit One for

4 the hearing.

5 LT. CHOI: This was the last page of Attorney Ann

6 Wilcox's Rosser letter which did in fact ask for all police

7 documents, all police notes, including those to be used at

8 trial. And she goes on, all products or fruits of

9 surveillance. That was on May of 2011.

10 THE COURT: You are saying that the government did

11 not comply with their obligation to give you that stuff?

12 LT. CHOI: Yes, Your Honor.

13 THE COURT: With specific reference to the

14 handcuffs?

15 LT. CHOI: Yes, Your Honor.

16 THE COURT: All right. Thank you.

17 LT. CHOI: Finally. I did attempt to try other, not

18 that I'm obligated to under Bagley and Kyles v. Whitley, but

19 I did try to ask in a Freedom of Information Act request to

20 the Department of Interior. I hope that this can also be

21 admitted.

22 THE COURT: For purposes of the hearing only, we'll

23 mark it as two.

24 Have you seen this?

25 MS. GEORGE: No, Your Honor. I have the last page

30

1 of Ms. Wilcox's Rosser letter because I provided that in

2 discovery. I don't have a copy of his next exhibit.

3 LT. CHOI: But your Honor, Randolph Myers does. For

4 whatever reason--

5 THE COURT: You made a FOIA request. What did you

6 ask for?

7 LT. CHOI: I asked for correspondence that contains

8 the name Daniel Choi and/or Lt. Bahjat, which was nom de

9 guerre and/or Get Equal. They did say that responsive

10 documents exist, but the release of the documents could

11 prematurely reveal the full scope, direction and limits of

12 the case against you, which is this proceeding.

13 So I wanted Attorney Myers, the senior solicitor or

14 attorney at the solicitor's office to be here, just simply to

15 give me those documents. I know they exist and they would

16 certainly show more than just animous, but a concealment

17 whether it is good faith or bad faith, I invoke that. And I

18 believe that if you have no other questions, that's my

19 argument.

20 THE COURT: Fine. We'll be in recess.

21 (A brief recess was taken.)

22 THE COURT: This constitutes the ruling of the Court

23 on the pending motions. Pending before the Court, are

24 Documents 119 and 120. 119 is denominated Defendant's

25 Omnibus In-Trial Motion to Dismiss. 120 is denominated

31

1 Defendant's Motion to Dismiss for Prosecutorial Misconduct.

2 Both motions are denied. I find, first of all that

3 the premise of both motions is failure, the alleged failure

4 to produce a certain e-mail, which has been identified and

5 now placed into this Court as Court Exhibit Number One.

6 I find, first of all, that the only possible

7 relevance or pertinence of the e-mail to this matter is

8 insofar as it bears on the supposed legitimacy of the

9 initiation, continuance and maintenance of this prosecution

10 because doing so is in violation of the Constitutional rights

11 of the defendant.

12 I find, first of all, that under the unequivocal

13 command of the mandate order issued by the chief judge that

14 defense, that objection may not be considered. The

15 magistrate judge is precluded from doing so by explicit order

16 of the Court.

17 Additionally, I find no distinction whatsoever that

18 can be permissibly drawn between a claim of selective or

19 vindictive prosecution, which are spoken of in that order,

20 and a claim that the prosecution violates the First Amendment

21 right. To me, they are all variance of the same theme. More

22 specifically, they all deal with, as I say, the commencement

23 or initiation of the prosecution. And the chief judge has

24 unequivocably ruled that such motions must be made prior to

25 trial pursuant to Rule 12.

32

1 Additionally, I find in addition that, even if the

2 motion could be considered, I do not find that Court's

3 Exhibit Number One adds substantially to the quantive of

4 information known about what occurred before the day of the

5 demonstration. I do not find that a reasonable person would

6 find in it any additional evidence of an animous or a

7 retaliatory motive, even assuming for the sake of the

8 argument I could consider it. Accordingly, I deny both

9 motions.

10 Additionally with reference to other outstanding

11 motions, with reference to number 57 and 58, those motions,

12 while not perfectly clear, pertain it appears, and as shaped

13 by the defendant, to certain handcuffs that were used to

14 arrest him which have now -- which are no longer in existence

15 as represented by the United States.

16 I find the existence and condition of those

17 handcuffs to be irrelevant to this case whether because --

18 excuse me -- to be irrelevant to this case because they did

19 not bear at all on the legitimate issue presented which is

20 whether or not the defendant obeyed the order of police to

21 get down from the White House ledge on top of the White House

22 sidewalk.

23 With reference to numbers 59 and 61, I find that

24 number 61, despite its title, is an effort to withdraw number

25 59 and I will grant the motion to withdraw it, rendering the

33

1 other motion moot.

2 There is pending before the Court two additional

3 motions. First of all, the defendant has asked for an

4 opportunity to speak to the Motions to Quash. I will permit

5 him an opportunity to do so because I think doing so will

6 shape our thinking as to what remains if anything of the case

7 to be tried. In responding to the government's motion of

8 course the defendant will have to grapple and deal with the

9 rulings I have just made.

10 Ms. George, there is also pending before me, I don't

11 know if you have seen it, a motion to file a brief amicus

12 which was filed on October 8th. I do not know if you saw

13 that. I permitted by fiat it to be filed solely for the

14 purposes of getting it on the docket. I will certainly give

15 you an opportunity to respond there if you wish to.

16 MS. GEORGE: Your Honor, I did receive a copy of it

17 yesterday. And I did check Pacer last night and shortly

18 before I came to court today and it has not been docketed

19 yet.

20 THE COURT: All right. I wrote fiat and it may not

21 have gotten to Ms. Coln. Have you seen it yet?

22 In any event, I will cause it to be filed, subject

23 of course to your motion to strike it or oppose it, whatever

24 you see fit to do.

25 MS. GEORGE: Thank you, Your Honor.

34

1 THE COURT: That concludes the business of today. I

2 will look forward to the filings by the parties.

3 I want Lt. Choi's opposition to the Motion to Quash

4 to be filed within 10 days.

5 Ms. George, would you file within 10 days any

6 opposition you may have for that motion to file a brief

7 amicus.

8 MS. GEORGE: Certainly, Your Honor.

9 THE COURT: Court stands in recess. Thank you.

10 (Whereupon, at 3:13 P.M., the hearing concluded.)

11

12

13

14

15 CERTIFICATE OF REPORTER

16

17 I, Lisa Walker Griffith, certify that the foregoing

18 is a correct transcript from the record of proceedings in the

19 above-entitled matter.

20

21

22

23

24 ________________________________ ____________

Lisa Walker Griffith Date

25