Show Temp 14

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927
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) 4:06CR-3095
) May 29, 2007
vs. ) 9:06 a.m.
) Lincoln, Nebraska
JEFFREY E. HOOVER, )
)
Defendant. )
VOLUME VII
TRANSCRIPT OF TRIAL PROCEEDINGS
BEFORE THE HONORABLE RICHARD G. KOPF
UNITED STATES DISTRICT JUDGE, AND A JURY
A-P-P-E-A-R-A-N-C-E-S
FOR THE PLAINTIFF: Alan L. Everett
Janice M. Lipovsky
Assistant United States Attorneys
100 Centennial Mall North
Suite 1400
Lincoln, Nebraska 68508
FOR THE DEFENDANT: Robert B. Creager
Jonathan M. Braaten
Anderson-Creager Law Office
1630 K Street
Lincoln, Nebraska 68508
TRANSCRIBER: Allan G. Kuhlman
111 S. 18th Plaza
Suite 3122
Omaha, NE 68102
(402) 661-7305
4:06-cr-03095-RGK-DLP Doc # 161 Filed: 10/29/07 Page 1 of 159 - Page ID # 1916
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928
(At 9:06 a.m. on May 29, 2007, with counsel for the
parties and the defendant present, the following proceedings
were had out of the presence of the jury:)
THE COURT: Good morning.
MS. LIPOVSKY: Good morning.
MR. CREAGER: Good morning.
THE COURT: Is there anything you want to put on the
record at this time?
MR. EVERETT: Judge, just to update everybody on the
scheduling, it looks like we may be finished Thursday at
noon.
Our last two witnesses can't be here until then.
One of them is a director of a crime lab in Wyoming and he
has another trial he has to testify in.
He has to testify before the final witness, so we've
got those two for Thursday morning.
As the trial progressed, also we kind of continued
to drop witnesses.
We are not sure we have a full day today, and a full
day tomorrow, but we can't get those last two witnesses here
any sooner than Thursday morning and let you know that.
THE COURT: All right. Thank you. Mr. Creager,
anything you want to put on the record?
MR. CREAGER: No, Thank you, Your Honor.
THE COURT: Counsel, at about 5:30 on Friday
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929
afternoon I sent you an e-mail in which I enclosed a copy of
United States versus Roy, 843 F.2d 306-307, Eighth Circuit,
1988.
In that case evidence of accomplices' prior
consistent statements were deemed to be admissible for the
limited purpose of rehabilitation after a murder defendant
argued that the accomplices' statements had been made after
they had a motive to fabricate their story, shifting the
blame to the defendant.
The jury was charged and told that there was a
limited use they could make of the testimony, and that was as
to prior consistent statements could be used for
rehabilitation purposes only, and excluded its use as
substantive proof.
The opinion, I think, does a pretty good job of
explaining my limitation of Steven McCaul's testimony and it
also addresses and in a sense refines the question of when
does a motive to fabricate or lie arise in these accomplice
situations.
It is very likely that if the government offers
prior consistent statements regarding other witnesses, or
from other witnesses about the accomplices, the two young men
who were alleged to be accomplices here, that I will limit
their testimony in much the same manner I limited McCaul's
testimony regarding what Brian Kempton said to him.
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930
I want to make a record of that so that you know
what my thinking is.
And that, I think, is partially responsive to the
government's suggestion that it might later try to argue that
the government wants this information received for
substantive purposes.
It's quite unlikely that that's going to occur. All
right. May I bring the jury in?
MS. LIPOVSKY: Yes, Your Honor.
MR. CREAGER: Yes, Your Honor.
THE COURT: Bring the jury in, please.
MS. LIPOVSKY: May I bring the first witness into
the courtroom?
THE COURT: Yes.
(The following proceedings were had in the presence
of the jury:)
THE COURT: Good morning, ladies and gentlemen.
Ladies and gentlemen, I told you I would keep you advised as
to the progression of the case.
The government informed me this morning that it
anticipates that its evidence will be over sometime Thursday,
probably in the morning.
The government also tells me because of witness
scheduling matters, that our day today may be shorter than
normal, as well as tomorrow.
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MARY JANE DUNN - DIRECT EXAMINATION
931
I'll try to keep you advised as things progress so
you know how we are going along.
But the long and short of it is we're on schedule,
or a little bit ahead of schedule. Ms. Lipovsky?
MS. LIPOVSKY: Thank you, Your Honor. I would call
Mary Dunn.
THE COURT: Ms. Dunn, if you would come forward and
take a seat in that witness box. Just sit down and this lady
will swear you in.
COURTROOM DEPUTY: Please state your full name for
the record and spell your last name.
THE WITNESS: Mary Jane Dunn. D-U-N-N.
MARY JANE DUNN, PLAINTIFF'S WITNESS, SWORN
THE COURT: Ms. Dunn, if you would put your elbows
flat on the desk in front of you, that will force you into
the microphones and we will be able to hear you better.
The lawyers are going to be asking you questions
from that standing podium. Ms. Lipovsky, you may proceed.
MS. LIPOVSKY: Thank you, Your Honor.
DIRECT EXAMINATION
BY MS. LIPOVSKY:
Q. Ms. Dunn, could you please state your business address?
A. 807 South 11th, Lincoln Nebraska.
Q. And what is your business?
A. Liquor store.
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932
Q. What is the store?
A. Geno's.
Q. It's a liquor store, off sale?
A. Yes.
Q. How long have you been doing business at Geno's?
A. Since December 1995.
Q. And is it the type of business that has some regular
customers?
A. Yes.
Q. Were you running Geno's in 1997?
A. Yes.
Q. And did it have the same address as the current address?
A. Yes.
Q. And that was 807 South 11th Street?
A. Yes, ma'am.
Q. Ms. Dunn, did you know Harold Fowler?
A. Yes.
Q. Did you know him by a nickname?
A. Yes.
Q. What was the nickname?
A. Blue.
Q. Was Blue a regular customer?
A. Yes.
Q. About how long had you known him as a regular customer?
A. About eight months.
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933
Q. But you had owned the liquor store longer; is that
correct?
A. Yes.
Q. Why was it eight months?
A. An employee retired and I started working full-time days
about eight months prior to this.
Q. And what were the usual -- what was -- let me withdraw
that and rephrase that.
Did Harold Fowler have a usual type of purchase of
alcohol?
A. Small purchases, not one brand.
Q. What type of purchase?
A. A quart of beer, single servings.
Q. Like individual cans of beer?
A. Sometimes, yes.
Q. Single servings, you can sell single servings from a
liquor store?
A. Yes.
Q. How did Harold Fowler usually pay for his purchases?
A. Cash.
Q. And what denominations did he usually provide you for his
purchases of his small amounts of alcohol?
A. Frequently paid with change.
Q. Like nickles and dimes and quarters?
A. Yes.
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934
Q. Did you ever see Harold Fowler make any large purchases
of alcohol?
A. No.
MS. LIPOVSKY: Could I have Exhibit 38 brought up,
please?
BY MS. LIPOVSKY:
Q. Ms. Dunn, do you recognize who is present in that
exhibit?
A. Yes.
Q. Who is that?
A. Harold Fowler.
Q. Thank you. Ms. Dunn, was Harold Fowler a regular
customer in May and June of 1997?
A. Yes.
Q. Do you recall the last time you saw Harold Fowler?
A. Late afternoon or early evening on Monday, the 9th of
June.
Q. Was Mr. Fowler alone or with someone?
A. He was alone.
Q. Did he make a purchase?
A. Yes.
Q. Do you recall how he paid for that purchase?
A. With a fifty dollar bill.
Q. Does that stick out in your mind?
A. Yes.
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935
Q. Why?
A. He had never paid -- I had never seen him with that large
amount of money.
Q. Did you see if he had any other money?
A. Yes.
Q. What did you see?
A. He had two additional fifty dollar bills and he had a
roll of cash in his hand.
Q. After Harold Fowler paid for his purchase, did he leave?
A. Yes.
Q. I guess I didn't ask you, did he purchase the normal
amount of alcohol that he usually did?
A. Yes.
Q. He paid with something unusual?
A. Yes.
Q. After Harold left, did he come back?
A. Yes.
Q. About how much time went by?
A. Five, six minutes.
Q. And when Harold Fowler returned, did he ask you anything?
A. Yes.
Q. What did he ask?
A. He asked to use the phone.
Q. Did you routinely let people use your business phone at
that time?
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936
A. No.
Q. Where was the phone located?
A. Behind the counter.
Q. Did you make an exception for Harold Fowler on that day?
A. Yes.
Q. Why was it that you made an exception for him that day?
A. He said he had lost his keys.
Q. What else did he tell you?
A. He wanted to make some phone calls. He was locked out of
his apartment.
Q. Did it appear to be urgent?
A. Yes.
Q. Did you then agree that you would let him use your phone?
A. Yes.
Q. How many phone calls did Harold make?
A. Two.
Q. Could you hear what was being said during the phone
calls?
A. Yes.
Q. During the first phone call, what did Harold say?
A. He said I've got some money for you. I'll be over to get
you some money.
Q. How long did that phone call last?
A. Under thirty seconds.
Q. And you said that he made two phone calls?
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937
A. Yes.
Q. Do you know where the second phone call was placed to?
A. Yes.
Q. How do you know that?
A. He needed assistance dialing it.
Q. Did you provide assistance?
A. Yes.
Q. How did you provide assistance?
A. I looked up the number to Matt's Bar and dialed it and
handed the phone back to him.
Q. And did you hear what Harold Fowler said during that
conversation?
A. Yes.
Q. What did he say?
A. He said I've got your stuff for you this time. I'm sorry
it took so long to get it together.
I guess the subject matter ran along the lines that
sounded like they were talking about something covert.
Q. And did you ever see Harold Fowler again after he used
your telephone on June 9, 1997?
A. No.
Q. This was in 807 South 11th Street in Lincoln, Nebraska?
A. Yes.
MS. LIPOVSKY: May I have a moment? I have no other
questions.
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STEVEN C. HARRY - DIRECT EXAMINATION
938
MR. CREAGER: May we have a second, Your Honor?
THE COURT: Yes.
MR. CREAGER: We don't have any questions of this
witness, Your Honor. Thank you.
THE COURT: Thank you, Ms. Dunn. You may step down.
May I excuse Ms. Dunn?
THE COURT: You are excused, ma'am.
MS. LIPOVSKY: Your Honor, may I go in the hall and
retrieve the next witness?
THE COURT: You may. Sir, if you will come forward
and take a seat in that witness box, please. This lady will
swear you in after you're seated.
THE WITNESS: Steven C. Harry. H-A-R-R-Y.
STEVEN C. HARRY, PLAINTIFF'S WITNESS, SWORN
THE COURT: Mr. Harry, sit just exactly like you're
seated. That's good. You're right into the microphone.
The lawyers will be asking you questions from the
podium. Ms. Lipovsky.
DIRECT EXAMINATION
Q. Good morning, Mr. Harry.
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939
A. Good morning.
Q. Mr. Harry, what is your current address?
A. Denver, Colorado.
Q. And what is your current employer?
A. Echelon Communications.
Q. What do you do there?
A. Sales associate.
Q. How long have you worked there?
A. Four months.
Q. Where were you employed prior to that?
A. General Truck Sales in Memphis, Tennessee.
Q. Did you previously live in Lincoln?
A. I did.
Q. Were you born in Nebraska?
A. Yes.
Q. Where?
A. Omaha.
Q. Were you living in Lincoln in 1997?
A. I was.
Q. What were you doing in Lincoln at that time?
A. Student.
Q. Where were you going to school at?
A. UNL.
Q. And did you get a degree there?
A. Yes, ma'am.
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940
Q. What was it?
A. Business administration.
Q. How long did you live in Lincoln before you moved away?
A. From 1994 to 1996, and then moved to Keystone, Colorado,
for six months, took a semester off, and then moved back to
Lincoln in the end of April in 1997.
Q. Did you start attending school then again when you came
back to Lincoln?
A. Yes, ma'am.
Q. Were you also working places?
A. Yes.
Q. Where were you working after you returned in 1997?
A. Matt's Bar.
Q. Any place else?
A. I also worked at Nebraska Public Television as an intern.
Q. Were you attending school at the same time you were
working?
A. Yes.
Q. So was your employment full or part-time at Matt's Bar?
A. Part-time.
Q. Do you recall where Matt's Bar was located at that time?
A. On 8th Street.
Q. In what general area of town?
A. The Hay Market.
Q. Is that kind of downtown north of the overpass?
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941
A. Yes, ma'am.
Q. You said that you had come back in like late April of
'97, was that right?
A. Yes.
Q. Did you start working at Matt's shortly after that?
A. Yes.
Q. Were you working there in June of 1997?
A. Yes.
Q. Did you have usual hours, even though it was part-time?
A. I believe I worked Mondays and Saturdays.
Q. And did you know a customer named Blue?
A. Yes.
Q. Was he what you would term a regular?
A. Yes.
Q. And do you remember what Blue looked like?
A. Black male.
Q. Did you see Blue on June 9, 1997?
A. I did.
Q. Were you working at the time?
A. I was.
Q. Do you recall what time of day approximately it was when
you saw him?
A. I believe it was in the early evening.
Q. Was he alone or with someone else?
A. I believe he was with somebody, but -- yes, I believe he
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STEVEN C. HARRY - CROSS-EXAMINATION
942
was with somebody.
Q. Did you know who that person was?
A. No, ma'am.
Q. Do you recall anything about Blue's demeanor that night?
A. Nothing specific.
Q. Was there anything that you recall that seemed unusual
regarding him?
A. Yes. He had a large wad of money.
Q. Can you describe it for the jury at all?
A. About a three-quarter inch thick wad of money.
Q. Were you able to see any of denominations that you can
recall?
A. I believe the only bill that I saw was a five dollar
bill.
Q. Did you ask Blue anything about the money?
A. No, I didn't.
Q. Had you ever seen him with that much money before?
A. No, ma'am.
Q. Did you see Blue or Harold Fowler after that?
A. No, ma'am.
MS. LIPOVSKY: I have no other questions.
MR. CREAGER: Just a few questions, Your Honor.
CROSS-EXAMINATION
BY MR. CREAGER:
Q. Sir, do you recall how long Blue was at the bar that
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STEVEN C. HARRY - CROSS-EXAMINATION
943
evening?
A. No, sir, I don't.
Q. Do you recall whether he purchased any alcohol or
consumed any alcohol there that evening?
A. No, sir, I don't.
Q. You just basically remember seeing him for some period of
time with the money and that's about it?
A. Yes.
MR. CREAGER: I have no further questions. Thank
you, Your Honor.
THE COURT: Redirect?
MS. LIPOVSKY: None.
THE COURT: Thank you, Mr. Harry. You may step
down. May the witness be excused?
THE COURT: You are excused, Mr. Harry.
MR. EVERETT: May I be excused to get the next
witness, Your Honor?
THE COURT: Yes. Sir, if you would come forward and
take a seat in that witness box. After you're seated this
lady will swear you in.
THE WITNESS: Jay Doug Oates. O-A-T-E-S.
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JAY D. OATES - DIRECT EXAMINATION
944
THE COURT: Mr. Oates, if I could ask you to lean
forward and place your elbows flat on the desk in front of
you, that will force you into the microphone so we can hear
you better.
podium. Counsel, you may proceed.
MR. EVERETT: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. EVERETT:
Q. Mr. Oates, where do you live?
A. Ypsilanti, Michigan.
Q. What do you do there?
A. Executive chef at the Marriott at Eagle Crest.
Q. Where is Ypsilanti, Michigan?
A. Fifteen miles west of Detroit, or four miles east of
Ann Arbor.
Q. And you stated you are the executive chef at a Marriott
there?
A. That's correct.
Q. How long have you been doing that?
A. I have been at that property for fifteen months.
Q. And as executive chef of a large hotel, what sort of
duties do you have?
A. I oversee the human resource aspect in the culinary
department, along with all menu development, and along with
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945
all culinary operations throughout the complex.
Q. How long have you been doing that at the Marriott at
Ypsilanti?
A. Fifteen months.
Q. What sort of training and education do you have to
qualify you for that job?
A. I have a degree in culinary arts, and then I've also been
doing it for the better part of twenty years.
Q. How long have you been with Interstate Hotel Resorts?
A. About three and a half years.
Q. And you've been in this line of work for how long?
A. Since about 1991 as professional chef.
Q. Did you previously work at the Ramada here in Lincoln,
Nebraska?
A. Yes, I did.
Q. And where is that located?
A. 9th and O Street.
Q. What was your position there?
A. Executive chef.
Q. And when did you work there at the Lincoln Ramada?
A. November of '95 until September of '98.
Q. You were executive chef there in June of 1997?
A. That's correct.
Q. Did you know Harold Fowler?
A. Yes, I did.
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946
Q. How did you know Harold Fowler?
A. I hired him as a breakfast cook.
Q. What does that mean?
A. Means I hired him to cook breakfast.
Q. How many days a week did he work?
A. Scheduled would have been five to six, depending on the
flow of business.
Q. 5:00 a.m. --
A. His hours would have been 5:00 a.m. to probably 1:00
o'clock or 2:00 o'clock.
Q. And generally how many days a week?
A. Five or six days a week he would have been scheduled,
depending on the flow of business.
Q. During what period of time, beginning to end, did he work
for you?
A. I believe he worked for me for about nine months, so it
would have been late '95 through the winter and spring of
1996 or '97.
Q. 1997?
A. Right.
Q. Did he last work for you in approximately May of 1997?
A. That is correct.
MR. EVERETT: May we see Exhibit 38, please?
BY MR. EVERETT:
Q. I want to ask you if you recognize this as Harold Fowler?
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947
A. Yes.
Q. Was the last time you saw Harold Fowler the Monday before
they found him?
And if they found him on June 15th, would that make
it Monday, June the 9th?
A. That's correct.
Q. Do you remember what day of the week that was?
A. Yeah, it was a Monday. Along with being the executive
chef of Ramada Plaza, I was the resident manager and I did
MOD shifts on Monday.
Q. What is an MOD shift?
A. I'm sorry. Manager on duty.
Q. Do you recall what time of day it was on Monday, June
9th, when you last saw Harold Fowler?
A. In between 7:00 o'clock and 9:00 o'clock.
Q. So sometime in the evening?
A. That's correct.
Q. What do you remember of that meeting?
A. He had came in to finalize a payment on a debt he owed
me. He was intoxicated.
He was in pretty good spirits and he had a little
bit of cash on him.
Q. What about any of that was unusual?
A. That he had a little bit of cash on him.
Q. Was he typically in pretty good spirits?
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A. Yes.
Q. And did he pay you in cash?
A. Yes.
Q. Did you see how he was carrying that cash? Was it in a
wallet? In a pocket?
A. He had it in a pocket, kind of in a wad.
Q. And could you describe the wad of cash that you saw him
to have?
A. It was approximately ten to fifteen bills. He had a
couple of hundreds, two or three, over the outside of the
wad.
Q. Could you see any of the other denominations?
A. No.
Q. A couple hundreds, though, on the outside?
A. Right.
Q. I take it from your earlier comment he did not normally
have that kind of money?
A. No. No, he didn't.
Q. And how long were you in each other's presence that
evening?
A. Probably less than fifteen minutes.
Q. Were you conversing that whole time?
A. I met him in the lobby in front of the elevator bank. He
said he came in to pay me. He paid me.
I'm sure we joked around a little bit, talked a
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949
little bit.
And then I asked him, because he was no longer
allowed on the property by that time, so I asked him to leave
and he slowly meandered towards the front door.
Q. And was that the last time you ever saw him?
A. I watched him walk down the sidewalk to ensure that he
left the property.
Because we had a south entrance, I didn't want him
to come back in the south door, but that was the last time I
saw him.
MR. EVERETT: Nothing further, Your Honor.
MR. CREAGER: We have no questions, Your Honor.
Thank you.
THE COURT: Thank you, sir. You may step down. May
I excuse this witness?
MR. EVERETT: Yes, Your Honor.
THE COURT: You're excused, sir. Thank you.
MS. LIPOVSKY: If we could have just one moment?
MR. EVERETT: Your Honor, our next witness is Jeff
Howard.
THE COURT: Sir, if you will take a seat in the
witness box, this lady will swear you in from the seated
position.
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JEFFREY HOWARD - DIRECT EXAMINATION
950
THE WITNESS: Jeffrey Howard. H-O-W-A-R-D.
JEFFREY HOWARD, PLAINTIFF'S WITNESS, SWORN
THE COURT: Mr. Howard, I see that you have a number
of things, that you brought a number of things with you.
Nevertheless, if you could move them to the side.
THE WITNESS: Sure.
THE COURT: And if you would put your elbows on the
desk in front of you, that will force you into the
microphone, so that way we will be able to hear you better.
podium. Counsel, you may inquire.
DIRECT EXAMINATION
BY MR. EVERETT:
Q. Sir, how are you employed?
A. Currently work for the FBI.
Q. What do you do for the FBI?
A. I'm a special agent in Fredericksburg, Virginia.
Q. And as a special agent for the FBI, what is the general
nature of your duties?
A. Investigate federal crimes and bring them to prosecution.
Q. How long have you been with the FBI?
A. Since January of 1999.
Q. What did you do before that?
A. I was a police officer in Lincoln, Nebraska.
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951
Q. How long were you a police officer in Lincoln, Nebraska?
A. Since June of 1985. A little over thirteen years.
Q. From June of 1985 to roughly January of 1999 you were a
police officer here in Lincoln?
A. Yes.
Q. And as a police officer in Lincoln, what were your
duties?
A. At first I was a street officer in uniform and then in
approximately 1992 I became an investigator in the criminal
division over at the police department.
Q. What sort of duties did you have in the criminal
division?
A. Working mainly violent crimes and serious felonies.
Q. And in June of 1997 were you also a member of any sort of
a specialized crime scene team?
A. Yes. We called ourselves crime scene technicians at that
time.
Q. And what does that mean?
A. We got special training to process crime scenes and
collect evidence.
Then we would go out on the major crimes that needed
that kind of skill.
Q. And as such did you become involved on June 9th -- well,
I guess on June 15, 1997, did you become involved in a
homicide investigation?
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952
A. Yes.
Q. Were you detailed to go to a particular location in that
regard?
A. Yes.
Q. Where was that?
A. 801 South 9th Street in Lincoln.
MR. EVERETT: May we see Exhibit 1, please?
BY MR. EVERETT:
Q. We're showing to you and to the jury a photograph that
has been received previously as Exhibit 1. Do you recognize
that?
A. Yes.
Q. What is that?
A. That's the apartment building where this scene occurred.
Up in the upper left hand window, that was the apartment.
Q. Do you recall approximately what time you arrived at the
apartment?
A. Approximately 2:30 in the afternoon.
Q. And what was the status of the investigation at that
time?
A. What I had been told via the radio was that someone had
reported an odor and flies at that apartment and the owner
had opened the apartment with a police officer and observed
two dead bodies.
Q. And what was going on investigation-wise when you
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953
arrived?
A. When I got there the uniformed officer was up on the
landing making sure nobody was entering the apartment and the
door was open.
Q. Were any officers of the Lincoln Police Department in the
apartment at that time?
A. No.
Q. What was the first thing you did?
A. I advised my sergeant what was going on and they said
that they were calling up the folks on the crime -- the crime
scene techs to come out and look at processing the scene and
they were going to bring -- there is a police van that we use
that has -- kind of use as a command post for something like
this.
Q. And I think I may have misspoken earlier. I might have
said the 15th. This is actually Saturday the 14th; is that
right?
A. Yes. It started on the 14th.
Q. Your duties went into the early morning hours of the 15th
that day?
A. Yes.
Q. But still on Saturday the 14th, did you stay at the crime
scene there for very long?
A. I left not long after that, after there was -- I was told
there was a person at the police department who was a
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954
neighbor that they wanted me to interview and I returned to
the police department to interview that person.
Q. And when that interview was finished, did you return to
815 South 9th?
A. Is it 815 or 801?
Q. 801. I'm sorry.
A. Yes, and by that time the crime scene van was there and
my captain at that time said he wanted me to go with the
county attorney to draft a search warrant for the premises
and then go get that signed by a judge.
Q. And so did you become what is referred to as an affiant
on a search warrant?
A. Yes.
Q. And I take it the idea was to get permission to enter the
apartment and begin the investigation?
A. Yes.
Q. And did that process take some time?
A. Yes.
Q. What time of day approximately did you finally have the
search warrant that you needed?
A. I think it was 4:00 p.m. or 4:30 that day, approximately.
Q. I'm talking about the final search warrant.
A. Maybe 5:30 or 6:00 when we finally had -- I would have to
look, if there is a specific time.
Q. What did you do with the search warrant once you got it?
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955
A. The first one?
Q. No, the final one.
A. I contacted the people at the scene and advised them that
I had the search warrant and then I returned to the scene.
Q. And what happened after you returned to the scene?
A. I noticed that there was quite a bit more activity.
There were more officers assembled and the technicians were
getting assembled to go in and interviews were being done in
the neighborhood by various officers.
Q. After you arrived back on the scene, was entry made into
the apartment?
A. Yes.
Q. And were you present when that was done?
A. Yes.
Q. And who was it that made the initial entry into the
apartment that you observed?
A. Sergeant Barksdale, and Sergeant Sundermeier, I believe,
was videotaping the scene.
Q. Did everyone else stay outside initially?
A. Yes.
Q. And this was sometime after 9:00 in the evening, as I
understand it?
A. Yes.
Q. After Sergeant Barksdale and Officer Sundermeier did
their initial walk-through, did you and other officers then
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956
begin your processing of the crime scene?
A. Yes.
Q. Were any steps taken so as not to contaminate the crime
scene?
A. Yes.
Q. Such as?
A. We had these special uniforms that we put on so that we
wouldn't -- you know, things wouldn't fall off.
And I should point out that Sergeant Sundermeier and
Sergeant Barksdale had these white suits on which consisted
of a shower cap for your hair and there were booties that
went over your shoes and we were wearing latex gloves.
Q. You made reference to some sort of a special uniform.
A. Yes. It was kind of a white jumpsuit made of paper, kind
of like what you get at the hospital, only it's white.
Q. Did everyone who entered that apartment that evening wear
that kind of protective clothing?
A. Yes.
Q. What were the conditions like inside the apartment?
A. It was really -- there was a really strong odor, and if
you have smelled a dead body, decomposing body, that's what
it smelled like.
It was very hot. The air conditioning wasn't
working.
It had been in the '90s I think that day and it was
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957
very warm in the apartment.
And we had -- there was a door in front that had
been open since I first got in, and I think the windows were
already open when we got there, and there were large blue
blow flies all over the place and kind of swarming around the
windows.
Q. You indicated that it was very hot.
A. Yes.
Q. Did that -- I guess does that have any effect on how the
officers were able to work in the apartment?
A. Well, we would step out every once in a while to get some
air, and we would change our latex gloves frequently because,
you know, those don't breathe and your gloves would start to
fill up with sweat.
So we would go out and take the gloves off and dry
off our hands and put a new set of gloves on and go back in
and get back to work.
Q. What was your primary duty that evening?
A. We had teamed-up. I was working primarily with
Investigator Doetker.
Prior to us going in and actually doing anything,
like I said, Sergeant Barksdale did a walk-through and
Sergeant Sundermeier did a video and Sergeant Breen was
taking -- had taken photographs of the overall scene.
I was assisting Investigator Doetker with taking
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958
measurements of where things were, how they were positioned,
making little cards to document where various things were in
the crime scene with letters and numbers.
Q. What sort of things were you measuring?
A. The distance from the various walls to the shell casings,
where the bodies were positioned. There was an ashtray next
to a couch.
I mean, we just wanted to take measurements so if we
needed to we could put things back exactly where they were
found.
Q. Now this began, you indicated, right after Barksdale and
Sundermeier did their initial walk-through, which was
sometime after 9:00 o'clock on Saturday the 14th; is that
right?
A. Yes.
Q. And how long did you and other officers stay there at the
apartment processing this crime scene?
A. Until sunup, when the bodies were finally removed.
Q. Do you know approximately what time all of the officers
finally decided to leave the apartment?
A. I think it was around 6:00 or 7:00 in the morning that we
left.
Q. What was done to secure the scene when you left?
A. At one point we put up padlocks on the front and back
door.
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959
I believe there were officers stationed outside
while we were gone.
And then we went and got some -- we went back to the
station and then we went home and got some sleep and we came
back later that day and stated up again.
Q. That first evening, Saturday evening and Sunday morning,
you and other officers were finding and seizing various items
of evidence; is that right?
A. Yes.
Q. And what was done with those that first night?
A. The evidence was secured in the southwest bedroom of the
apartment before we left.
Q. And when was that evidence then taken to the police
department and actually tagged in to property there?
A. The evening of the 15th.
Q. Who did that?
A. I did that.
Q. I've handed you what has been marked as Exhibit 50. Do
you recognize what that is?
A. Yes.
Q. What is that?
A. This is the hard copy of the property report that I
booked in on the 16th of June.
I have the time here as 2117, which is 9:17 in the
evening.
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960
And it consists of a hair found on Harold Fowler's
left wrist on his watch that was collected by Investigator
Doetker and placed in this envelope.
This is my handwriting on the outside of this
envelope here with that information. And do you want me to
open it?
Q. In a minute. You said that Officer Doetker seized a hair
from where?
A. From Harold Fowler's left wrist on his watch. There was
a hair on his watch.
Q. Did you actually write that on the outside of the
envelope?
A. Yes.
Q. And when you tagged it in to property, did the Lincoln
Police Department property keeping system assign a property
number to that?
A. Yes, it did.
Q. What is that property number?
A. P9709711.
Q. Did you observe Officer Doetker to seize that hair from
Mr. Fowler's left wristwatch?
A. Yes.
Q. And did you observe how he did that?
A. Yes.
Q. How did he do that?
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961
A. I recall him using tweezers and then placing it into an
envelope that I was holding.
Q. Was he wearing rubber gloves when he did that?
A. Yes, we both were.
Q. You said you were holding the envelope?
A. Yes.
Q. You were wearing rubber gloves?
A. Yes.
Q. And when did you then -- when did you tag that in to the
Lincoln Police Department property system?
A. I tagged it in on the 15th of June at 9:17 in the
evening.
MR. EVERETT: I'm going to ask you to open that. If
I may approach the courtroom deputy and obtain a scissors?
THE COURT: You may.
BY MR. EVERETT:
Q. Inside of that manila envelope we have been talking
about, it looks like you've removed a white envelope?
A. Yes.
Q. What is that?
A. It's an envelope we use for collection of things like
hair and this one is actually labeled hair.
It says Lincoln Police Department on it, and the
hair was placed by Officer Doetker into the envelope and then
Officer Doetker wrote -- this is his handwriting here.
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962
It says hair, left wrist on watch, RCD, that's Rich
Doetker's initials, 6-15-97, and collected by Doetker.
And he also indicated that the victim that it was
removed from was Fowler.
Prior to him doing this writing he had placed red
evidence tape around the edges so that it couldn't slip out.
Q. Did you see him do all of that, the writing?
A. Yes.
Q. And putting the tape on?
A. Yes.
Q. Is that the envelope that you held that he put the hair
in?
A. Yes.
Q. Does that also indicate what time on June 15th this was
done?
A. Yes, in Rich's handwriting here it says 0548, 6-15-97, so
that would have been 5:48 in the morning.
Q. Other than what you've told us, is there additional
handwriting on that envelope that you or Mr. Doetker didn't
put on it?
A. Yes.
Q. And how about the manila envelope that it came out of,
Exhibit 50, is there additional writing on there that you've
not talked about?
A. Yes.
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963
Q. And is that handwriting that neither you nor Mr. Doetker
put on there?
A. Correct, not by us.
Q. Other than that, do those exhibits appear to be in
substantially the same condition now as they were when you
tagged them in to the Lincoln Police Department property room
on June 15, 1997?
A. Yes.
Q. And was it standard procedure of the Lincoln Police
Department at that time to put evidence items such as hair in
to paper envelopes?
A. Yes.
THE COURT: Mr. Everett, would you identify for me
the exhibit numbers, please?
MR. EVERETT: The white envelope, Your Honor, is
contained within a manila envelope marked as Exhibit 50.
THE COURT: So there is only one exhibit number?
MR. EVERETT: Yes.
THE COURT: Thank you.
MR. EVERETT: May I approach the courtroom deputy,
Your Honor?
THE COURT: Yes.
BY MR. EVERETT:
Q. Sir, I've handed you what has previously been received in
evidence in this case as Exhibit 44-A and would ask you to
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look at that exhibit and its contents.
A. Do you want it removed?
Q. Yes, just enough so that you can know what the contents
are.
A. All right.
Q. Is there another item in there?
A. Yes. There is a clear ashtray in here.
Q. Have you seen that ashtray before?
A. Yes.
Q. Where have you seen that ashtray before?
A. It was on the floor in front of the couch in the living
room of the apartment at 801 South 9th Street on the 14th of
June of 1997.
Q. Were you present when that ashtray was seized into
evidence by the Lincoln Police Department?
A. Yes.
Q. Were there cigarette butts in that ashtray when it was
collected?
A. Yes, at the time.
MR. EVERETT: Could we see Exhibit 32, please?
BY MR. EVERETT:
Q. We're all looking at a photograph that has been received
into evidence as Exhibit 32. Do you recognize that?
A. Yes.
Q. What is that?
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A. That's this ashtray, minus the cigarette butts and the
ashes.
Q. Which is minus the cigarette butts? The picture --
A. The ashtray that I have in my hand doesn't have the
cigarette butts in it anymore, but the picture has the
cigarette butts in it.
Q. Was that photograph taken then before the ashtray and
cigarette butts were collected into evidence?
A. Yes.
Q. And did you see who collected those items and how that
was done?
A. Investigator Doetker picked up the ashtray with the
cigarette butts and put them into a plastic baggie type
evidence bag.
Q. Was he wearing rubber gloves when he did that?
A. Yes.
Q. Did you later submit those to the Lincoln Police
Department property room?
A. Yes, I did.
Q. And was that on June 15th?
A. Yes.
Q. Were they in those bags when you submitted them to the
Lincoln Police Department property room?
A. Yes, the plastic bag -- yes. The plastic bag we
submitted with the hard copy of this property report here.
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Q. Did you ever touch the ashtray or the cigarette butts
with your bare hands?
A. No.
Q. Did you ever see anyone else touch them with their bare
hands?
A. No.
Q. Did you, again this first evening of the 14th into the
early morning hours of June the 15th, did you observe anyone
to remove some hairs from the right hand of Harold Fowler?
A. Yes.
Q. If you could go ahead and put Exhibit 44-A back together.
A. All right.
Q. Let me ask you this. The hairs that you saw removed from
Mr. Fowler's right hand, who did that?
A. That was removed by Sergeant Sundermeier.
Q. And how did he do that?
A. I believe he used tweezers to pull them out and then
there were, I believe, three hairs and he put them into these
little bindles he had made with graph paper.
Q. What is a bindle?
A. He had this way of making a sheet of paper into an
envelope so it would hold the item without anything spilling
out.
Q. Was Sergeant Sundermeier wearing rubber gloves?
A. Yes.
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Q. And you said that there were three of them, three of
these bindles?
A. Yes, three bindles.
Q. Were hairs placed in each of them?
A. Yes, one to each one.
Q. Did you later tag those in to the Lincoln Police
Department property room?
A. Yes.
Q. Did you or anyone else, to your knowledge, touch any of
those with their bare hands?
A. No.
Q. Before you I've placed what has been marked as
Exhibit 51. Do you recognize that?
A. Yes.
Q. What is that?
A. This is the hard copy of the property report that I
tagged in on the 15th of June at about 9:19 p.m. on that
date.
This was the hair from Harold Fowler's right hand
that Sergeant Sundermeier collected at 0508 hours, which
would have been 5:08 a.m. on the 15th of June.
Q. Inside of Exhibit 51 is another envelope that has now
been marked as Exhibit 51-A.
A. Yes.
Q. I'll direct your attention to that. Do you see that?
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A. Yes.
Q. And inside of Exhibit 51-A there are three additional
items; is that right?
A. Yes.
Q. Have you examined those before coming in to court here
this morning?
A. Yes.
Q. I guess let's first start with the outside, the manila
envelope marked as Exhibit 51-A. What is that?
A. This is the manila envelope that I placed the bindles
into after the hairs were collected to secure them.
And this is my handwriting right here where it says
0508, hair, Fowler, 6-15-97, right hand, 717, JS, that's John
Sundermeier, and then my initials are down here, JH.
And then the property report number, that's in my
handwriting as well. The other handwriting on here is not
mine.
Q. What is the Lincoln Police Department property number
assigned to this item?
A. P9709717.
Q. Now, the three bindles that you talked about, those are
inside of that manila envelope?
A. Yes.
Q. And do you recognize those?
A. Yes.
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Q. How do you recognize those?
A. These appear to be the bindles that Sergeant Sundermeier
folded and then there are numbers on each of them, one, two,
three.
And those numbers are written in my handwriting, and
then this other writing appears to be John Sundermeier's.
Then there is the date, 6-14-97, and then there is
some other writing on here.
Q. What handwriting do you recognize as John Sundermeier's?
A. The writing underneath the numbers here, where it says
JS, 717, 6-14-97, which is written beside the number on all
three.
Q. What is the 717?
A. That's his unit number, I think. A lay person refers to
that as his badge number.
Q. Then there is additional writing on the bindles that's
not yours and it's not Sergeant Sundermeier's?
A. Yes.
Q. I guess he's now a captain?
A. He's a captain now, yes.
Q. On the manila envelope there's some additional writing
that's not yours; is that right?
A. Yes.
Q. Other than that additional writing, do Exhibits 51 and
51-A appear to be in substantially the same condition now as
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970
they were when you submitted them to the Lincoln Police
Department property room on June 15, 1997?
A. Yes.
Q. You can go ahead and put 51-A back together. Did you
also assist in efforts to locate fingerprints in the
apartment?
A. Yes.
Q. Was that also done the same evening?
A. No.
Q. Do you recall approximately when it was that you were
attempting to find some fingerprints in the apartment?
A. We saved that for last and I recall that as being on
approximately the 20th of June.
Q. Had you previously received training in how to do this?
A. Yes.
Q. What sort of training?
A. We all get fingerprint training, on how to collect and
powder for fingerprints, when we are in the Lincoln Police
Academy.
Now, I also had more training beyond that when I was
a crime scene tech, because we would go over things like
that, different techniques for collecting evidence.
Q. Did you have experience in, I guess dusting and lifting
fingerprints, prior to June of 1997?
A. Yes.
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Q. What sort of experience?
A. Various crime scenes, practice and training, reading
about techniques and training, that sort of thing.
Q. When you dust for fingerprints, are you looking for what
are termed prints of comparable value?
A. That's what we hope to get, yes.
Q. And I realize you are not an expert, and I'm not asking
you that question in that sense, but to you, as a person who
was looking for fingerprints, I mean to you, what was a print
of comparable value?
A. Something with enough detail on it that you could
recognize it as a fingerprint, or part of a fingerprint, or
part of a palm print, or some sort -- they leave a distinct
pattern.
But if it's like a smear, or a rub mark that has
absolutely no definition to it, that would be something I
would -- me not being an expert would say is not of
comparative value.
If there is any question in my mind we will collect
it and turn it in and let the person who is actually
qualified to make the analysis determine whether or not it's
of comparative value.
Q. If it was one of those smears or other items that were,
in your words I think clearly not of comparable value, what
would you do with those?
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972
A. Sometimes we would collect them and turn them in and
still let them be evaluated.
But, like I said, if it was absolutely nothing there
that indicated that you can even tell for sure that it was
some sort of a print, then we would collect it to the point
we put it on a card, but we would turn in just about
everything that -- because sometimes you would put the tape
on and collect it and then there really would not be anything
there.
Q. What if you weren't sure if a print was of comparable
value or not?
A. If there was any question in my mind I would just turn it
in and let a qualified person make that determination.
Q. What steps did you and other officers take to find
fingerprints in this apartment?
A. We were dusting just about every surface available in
that apartment.
If anything looked like it was developing into a
print we would dust it to the point where we were ready to
collect it.
At that point Detective Breen would photograph the
print, its location, a few times.
And then Rich Doetker would place the tape down and
collect the print, pulling the tape off and then placing it
on a fingerprint card.
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973
It's kind of a step process, because dusting is kind
of a messy job and it's better not to have the person that is
dusting for everything and getting messy be the one that
turns around and grabs the tape and takes the photograph and
does the tape.
So we had assigned jobs where I was doing the
dusting, Detective Breen would photograph if there was
something developed, and then Investigator Doetker would
collect it and put it on a fingerprint card.
Q. Were there others besides yourself who were dusting for
prints?
A. Yes, I think at various times I believe -- I think Rich
was collecting fingerprints at one point later.
Remember, we were doing the whole apartment, walls
included, all the way up to the ceiling.
Q. And what areas do you specifically recall dusting for
prints?
A. Like I said, there was the walls of the apartment
themselves, counter tops in both the kitchen and the
bathroom, the walls in the bathroom, the handles and door
knobs, and telephone, and, you know, anything in there that
could conceivably have a fingerprint of some kind on it or
any kind of a print, because we were also doing the linoleum,
both in the kitchen and in the entryway, not only to look for
fingerprints but to develop shoe prints.
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974
Q. And I think you indicated that when you found a print of
possible comparable value you would have Officer Breen
photograph it and then Investigator Doetker would actually
lift the print?
A. Yes.
Q. Did you, or any of the other officers, to your knowledge,
find prints of comparable value from the cupboards in the
apartment?
A. No, I don't recall that there were any.
Q. How about the kitchen counter?
A. I don't recall any.
Q. Telephone?
A. I don't recall any.
Q. Door knobs?
A. No.
Q. Window ledges?
A. No.
Q. The refrigerator, including its handle?
A. No.
Q. Did there come a time later in the investigation of this
case that you spoke with Brian Kempton?
A. Yes.
Q. And when was that?
A. When I spoke to him? I think it was in November of 1997.
Q. Do you recall when in November?
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975
A. I think the latter half of November.
Q. Did you make a report of that conversation?
A. Yes.
Q. And would looking at that report refresh your
recollection as to the exact date?
A. Yes. November 24, 1997.
Q. And was that the first time anybody from the police
department had spoken with Brian Kempton in connection with
this case?
A. Yes, I believe so.
Q. What was your purpose in making contact with Brian
Kempton on that day?
A. There was some -- there were some slips of paper and
notations in the residence and there was a phone number next
to the name BJ and we were told that Brian Kempton was one of
the persons that was referred to as BJ.
Q. And did that phone number correspond with anything else
that had been found during the search of the apartment
building?
A. Yes, it was also a phone number for -- I believe it was a
roommate, Jeff Hoover, and there were some -- there were some
checks that were found in the laundry room in the apartment
building that had Jeff Hoover's name on it.
MR. CREAGER: Excuse me, Your Honor. He appears to
be reading from a document. Can I have --
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976
MR. EVERETT: 296 is the number on the bottom
right-hand corner.
THE WITNESS: Yes, sup 296, page -- doesn't have a
page number. I think it would be page number three.
THE COURT: Hang on, just a minute. Mr. Creager,
tell me when you have access to it, please.
MR. CREAGER: I do. Thank you, Judge.
THE COURT: Go ahead.
BY MR. EVERETT:
Q. And did you contact Brian Kempton at that time because he
was somehow a suspect in this case?
A. No. We were just going through our steps. I had a list
of phone numbers that were found in the residence and we were
trying to determine what belonged to what phone numbers and
what their association was with one or more of the victims.
Q. And did you meet with Brian Kempton face-to-face?
A. No.
Q. This was a telephone call?
A. Yes.
Q. And did you ask him about the checks that had been found
in the laundry room belonging to Mr. Hoover?
A. Yes.
Q. And did you ask him if he knew Harold Fowler?
A. Yes, I did. He said that he had met -- he thought he had
met Harold Fowler maybe three times.
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977
Q. Did you ask him if he had any information about the
homicide?
A. Yes, specifically, and he said he did not have any
information about Harold Fowler's homicide.
Q. How long a phone call was this, do you think?
A. Maybe five or ten minutes.
Q. I want to clear up one thing. You mentioned that
actually two search warrants were obtained that evening?
A. Yes.
Q. Do you know the reason?
A. After myself and Joe Kelly, the county attorney that had
gone and drafted the warrant, with me being an affiant, and
taking it out to Judge Pokorny to be signed, we brought it
back to the command post, LPD mobile home, trailer, whatever
you want to call it.
As we looked it over there was some discussion that
maybe the search warrant wasn't specific enough about what we
were looking for.
And at that point I went with Joe Kelly again to add
some more language and then Joe Kelly and I drove out and had
the judge look over the search warrant and sign that second
warrant.
Q. So that whole process took about twice as long as normal,
it sounds like?
A. Yes.
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978
THE COURT: Mr. Creager, if you have any questions,
do you want to start now?
MR. CREAGER: I just have a few.
THE COURT: Go ahead.
CROSS-EXAMINATION
BY MR. CREAGER
Q. Agent Howard, I believe you testified that Sergeant
Doetker removed the hair from Mr. Fowler's watch; is that
right?
A. Yes.
Q. Did you see that hair?
A. Did I see the hair?
Q. Yes.
A. Yes.
Q. Do you know if that hair was photographed before Doetker
removed it?
A. I don't recall. I assume so, but that doesn't answer
your question.
Q. If you know, there's lots of photographs, do you recall
that hair and how it was situated either on or about the
watch?
Do you know whether -- I'll start over again.
Do you know whether there was a picture taken at the
time that Sergeant Doetker removed the hair from the watch?
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JEFFREY HOWARD - CROSS-EXAMINATION
979
A. I reviewed all the photographs before I came in here
today last week.
I don't know if you have the same ones I did, but
they have been digitized, so I can look at them on a
computer, and the scanning was not the best, so I might have,
but some of the things in some of those photographs I
couldn't make out very well.
Q. Fair enough. Do you remember how the hair was attached
to or on or affixed to the watch?
A. I recall it as being like stuck under the buckle portion
or -- I'm having trouble remembering what the watch looked
like as far as the band, if it was the buckle or one of the
teeth like in a flex watch.
Q. Did it seem to you that it was actually lodged in the
watch in some fashion?
A. I guess I don't follow what you're saying. Lodged?
Q. If the hair got caught and was actually stuck in the
watch, like in a gap, or under the belt, or someplace on the
watch? Do you know what I mean?
A. Yeah, like it caught on something?
Q. Yes.
A. Yes, that's how I took it.
Q. How about the hairs from the hand? Do you know whether
those hairs were photographed before they were removed from
the hand of Mr. Fowler?
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JEFFREY HOWARD - CROSS-EXAMINATION
980
A. Yes. I do recall a photograph of his hand with hair in
it.
Q. Can you tell us what you saw as to how the hair was in or
about the hand of Mr. Fowler?
A. When he was -- his body was laying next to the counter by
the front door and I recall his hand being like this, his
right hand --
Q. For the record, you have your hand sort of in a semi
clenched fist with your fingers along the palm?
A. Yes, and there were strands of hair that we could clearly
see without moving his hand, just looking at it, we could see
he had hair in his hand.
Q. Between his fingers in some fashion?
A. Or, you know, how it got caught in a crease, he was
gripping, it's hard to tell what exactly was gripping it, but
it was like this.
Q. It appeared to you from what you saw that the hairs were
inside the hand as if they had been gripped?
A. Yes.
Q. By the hand?
A. Yes.
MR. CREAGER: I have no further questions of the
witness. Thank you, Your Honor.
THE COURT: Redirect?
MR. EVERETT: No questions, Your Honor.
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981
THE COURT: Thank you, Agent. You may step down.
May I excuse Agent Howard?
MR. EVERETT: Yes, Your Honor.
THE COURT: You're excused, Agent. Thank you.
Counsel, shall we take our mid morning break at this time?
MR. EVERETT: Yes.
MR. CREAGER: Yes, Judge.
THE COURT: Ladies and gentlemen, if you will follow
the courtroom deputy, she'll help you now.
(The following proceedings were had out of the
presence of the jury:)
THE COURT: Now outside the presence of the jury,
would the government tell me what the testing of the hairs
showed?
MR. EVERETT: Your Honor, the testing of the hairs
either came back as no DNA could be extracted or consistent
generally with Duane Johnson.
I don't know that they obtained enough DNA to make
an actual identification, but at the loci where we were able
to extract DNA, it was generally all consistent with
Duane Johnson.
THE COURT: Will there be any DNA linked to the
defendant?
MR. EVERETT: From the cigarette butt in the
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982
ashtray.
I mean, there were other cigarette butts seized from
throughout the apartment. That DNA was all consistent with
Harold Fowler.
Hairs came back generally consistent with
Duane Johnson.
Nothing came back matching Waldbaum or Kempton, and
only the cigarette butts in the ashtray matched the
defendant.
THE COURT: Thank you. All right. Is there
anything you want to take up at this time?
MR. EVERETT: We are really cooking along today,
Judge. We've got one more very short witness for this
morning, and then this afternoon is going to be short as
well.
I apologize. We dropped some witnesses out over the
weekend and thought we had adjusted accordingly, but it's
going a lot faster than we thought.
THE COURT: I don't think anybody will be terribly
depressed, at least the jurors, if they get to leave early.
So you have one more witness this morning and then
you have another witness this afternoon?
MR. EVERETT: We have two -- well, one, maybe two
witnesses, this afternoon.
We've got phone calls we have been making to a
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983
witness starting this weekend and continuing this morning
that haven't been returned yet.
So we may have that witness this afternoon; we may
not have him until tomorrow.
THE COURT: All right. So, Mr. Creager, it sounds
like you are going to need to be thinking about Thursday
afternoon.
MR. CREAGER: Okay. Your Honor.
THE COURT: Is that right?
MR. EVERETT: We think so.
THE COURT: All right. Fifteen minutes.
(10:28 a.m. - Recess Taken)
(At 10:45 a.m. on May 29, 2007, with counsel for the
THE COURT: Please be seated. May I bring the jury
in?
THE COURT: Bring the jury in, please.
of the jury:)
THE COURT: Counsel, you may proceed.
MS. LIPOVSKY: Thank you, Your Honor. Call Heather
Christensen.
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HEATHER CHRISTENSEN - DIRECT EXAMINATION
984
THE COURT: Ma'am, if you will come forward and take
a seat in that witness stand there.
If you will follow this lady's directions, she will
swear you in.
COURTROOM DEPUTY: State your full name for the
record and spell your last name.
THE WITNESS: Heather Christensen.
C-H-R-I-S-T-E-N-S-E-N.
HEATHER CHRISTENSEN, PLAINTIFF'S WITNESS, SWORN
THE COURT: Ma'am, if you will lean forward and put
your elbows on the desk in front of you in a flat position
like that, that will force you into the microphone.
That way we'll be able to hear you better. The
lawyers will be asking you questions from the podium. Go
ahead, counsel.
DIRECT EXAMINATION
BY MS. LIPOVSKY:
Q. Ms. Christensen, what is your business address?
A. 575 South 10th Street.
Q. By whom are you employed?
A. Lincoln Police Department.
Q. What is your position there?
A. I'm a records manager.
Q. Are you a law enforcement officer or a civilian employee?
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985
A. Civilian.
Q. And how long have you worked for the Lincoln Police
Department?
A. Approximately a year and a half.
Q. And during that entire time have you been the records
manager?
A. Yes.
Q. What is your prior employment?
A. Previously I worked for Family Service as the office
manager and then Lincoln Public Schools as an office manager.
Q. And what type of duties did you have with those
businesses?
A. Running a front desk and supervising employees, as well
as maintaining all the behavioral health files for Family
Service.
With Lincoln Public Schools I worked for the
Community Learning Center and I was the only person in the
office so I ran that office and maintained all of their
before and after school program files.
Q. What are the duties of a records manager?
A. The main duties are to ensure proper maintenance and then
dissemination of the records, ensuring that all of the staff
are following the policies and procedures.
I process all the subpoenas that come in, and I also
process false information cases that would come in, and then
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986
assign follow-up to officers if necessary and supervise all
the staff.
Q. Do you also maintain the records of the police
department?
A. Yes.
Q. Where is the records department of the Lincoln Police
Department?
A. We're on the first floor in the northeast corner.
Q. That's --
A. 575 South 10th.
Q. That's past the front desk inside the actual police
department?
A. Yes.
Q. How many people work in records?
A. There's 27, including myself.
Q. Could you briefly describe the structure of the records
department?
A. Yes. I have three supervisors underneath me. We're
there twenty-four hours, seven days a week, so there is one
supervisor for the first shift, one for second shift, and one
for third shift.
Underneath them are technicians. First shift has
ten technicians. On second there's seven, and third shift
there's six.
Q. And the technicians report to the supervisors, the
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987
supervisors report to you?
A. Yes.
Q. What kind of work does the records department do? You've
kind of given me a general rundown, but for example do they
ever issue a citation?
A. The only time we issue a citation would be for false
alarm, if someone has more than four alarms, say a business
has more than four false alarms, then we would issue a
citation. Otherwise we enter the citations.
Q. What about when reports are dictated by officers?
A. Yeah, we would transcribe any of the supplemental reports
that were dictated through officers, as well as transcribe
taped statements.
Q. Do you record the dates of citations?
A. Yes.
Q. What is the information -- I'm sorry. What is the IRS?
A. The IR would be an incident report, and that is just a
report or record that the officer would fill out.
It's a form they will fill out for any criminal
offense or any other significant incident.
Q. Does the Lincoln Police Department issue peddler or taxi
permits?
A. Yes.
Q. Is that done through your office?
A. Yes, that's done at our public counter in the records
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988
unit.
Q. You said the incident reports are prepared by the
officers, correct?
A. Correct.
Q. And is information from incident reports maintained by
the records department?
A. Yes.
Q. What type of information?
A. All the information that is on the incident report is
entered in the computer.
The officers enter it in the computer and then we go
in and make sure the information is accurate as we would know
it and update any information.
For example, names is one of the things that the
officers do not enter, so if there is a name on a report we
go in and we enter those names and update any addresses.
Q. Do you file reports from other agencies from time to
time?
A. Yes, in our hard copy case file we would file those, if
they came in.
Q. What types of reports and agencies would that cover?
A. For example, a coroner's report might come in. We also
have our own DUI packets, just any other significant report
that would come in from another agency.
Q. Do you maintain gun registration files?
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989
A. Yes.
Q. What about property reports? Do you retain property
reports?
A. Yes, we do.
Q. Do you retrieve information for citizens?
A. Yes.
Q. What type of information?
A. Some of the information they request would be for an
accident report.
They may request the incident report as well.
Oftentimes they will request criminal histories or sometimes
the citation.
Q. How are those available to citizens?
A. They can come in at our records public counter and get
those, or we have the accident report and the criminal
history available on line for them.
Q. Is there a charge for any of that service?
A. The criminal histories are ten dollars. They can get the
accident reports free of charge, and the incident reports are
free of charge.
Q. So is it important that the information that you maintain
in the records department is accurate?
A. Yes.
Q. Are the incident reports made at or near the time of the
event?
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990
A. Yes.
Q. Are they made by officers who obtained that information?
A. Yes.
Q. Are they kept in the course of a regularly conducted
business activity?
A. Yes.
Q. And is it a regular practice of the Lincoln Police
Department to generate incident reports?
A. Yes.
Q. And how else are incident reports used by the officers,
other than just to record the information?
A. It's a general overview of the case. We can share that
with other law enforcement agencies.
Q. Is it also accessible to independent Lincoln police
officers?
A. Yes.
Q. You said that you check like the name to make sure that
the information is correct and you update the information
regarding the names; is that right?
A. Uh-huh.
Q. And how do you do that?
A. Any time we have a name on one of the reports, we check
and make sure that the name is tied to that particular case,
we have the case numbers that we would tie that to.
So if an incident report comes in and someone is
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991
listed as a suspect on there, we would go in to the main
screen, make sure that we have them in our system, and check
the address that was given by the officer at the time of the
report and make sure that that is updated and correct.
Q. If it's not in the system, do you put it into the system?
A. Yes.
Q. If there is a change, do you make note of the date of the
change?
A. Yes, the date would be as of when we typed it in, that
particular date that we're typing the report, that would be
the new address date.
Q. If this was a person who was already in the system and
you updated it, would you also try to maintain the, for
example, address immediately prior to the new information?
A. Yes.
Q. Did you review the records of the Lincoln Police
Department regarding Harold Fowler prior to coming to court?
A. Yes.
Q. Did you retrieve that information from Lincoln Police
Department records?
A. Yes.
Q. Is the report kept in the course of the regularly
conducted business activity?
A. Yes.
Q. And what is the information in the records of the Lincoln
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992
Police Department regarding the last known address of
Harold Fowler?
A. 801 South 9th Street, number five, Lincoln Nebraska.
Q. What is the phone number?
A. 438-0169.
MS. LIPOVSKY: May I approach the witness?
THE COURT: Yes.
BY MS. LIPOVSKY:
Q. Ms. Christensen, I've handed you what has been marked as
Exhibit 80, I believe; is that correct?
A. Yes.
Q. And are you able to identify what that is?
A. Yes.
Q. What is it?
A. It's the report of the gun sale, gun registration.
Q. And is this a form that is maintained with the police
department?
A. Yes.
Q. Is it the duty of the records department to maintain
those forms?
A. Yes.
Q. Do you know how it is completed?
A. This would be completed by either the seller, or by who
it was sold to.
Q. And is Exhibit 80 regarding a particular individual?
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993
A. Yes.
Q. Is that person's name listed on Exhibit 80?
A. Yes.
Q. Does that person's signature appear on that document
also?
A. Yes.
Q. Who is that individual?
A. Steve McCaul.
Q. And when the gun registration form is received at the
present time, how is it handled by the Lincoln Police
Department?
A. Presently a crime analysis unit enters all of the gun
registration information.
Q. Where are the actual records then kept?
A. They are kept in the records unit and within our computer
system.
Q. And prior to crime analysis putting that information in,
whose responsibility was it to input that information?
A. The records unit.
Q. And do you recognize any initials on Exhibit 80?
A. Yes.
Q. Whose initials do you recognize?
A. Janet O'Neill.
Q. Who is Janet O'Neill?
A. She was a records technician.
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994
Q. Has she been a records technician for the Lincoln Police
Department for very long?
A. Yes.
Q. Was she employed in that capacity in 1997?
A. Yes.
Q. Is it the regular practice of the Lincoln Police
Department to make and maintain gun registration forms?
A. Yes.
Q. And is this a copy of the original gun registration form?
A. Yes.
Q. Does it appear to be a true and accurate copy of the
registration form maintained by the Lincoln Police
Department?
A. Yes.
MS. LIPOVSKY: I would offer Exhibit 80.
MR. CREAGER: No objection, Your Honor.
THE COURT: Exhibit 80 is received.
MR. CREAGER: We have no questions for this witness.
Thank you, Judge.
THE COURT: Thank you, ma'am. You may step down.
May I excuse this witness?
THE COURT: You're excused, ma'am. You can leave
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the exhibits. Exhibit 80, you can leave that there, please.
My understanding is that the government has run out
of witnesses this morning?
MS. LIPOVSKY: Yes.
THE COURT: All right. We'll blame Mr. Creager for
not asking questions.
Ladies and gentlemen, we are going to have you come
back at 1:30, but let me tell you it's also likely that the
afternoon will be short as well.
We do try to maximize your time, but there are
times, particularly when you are scheduling witnesses, where
it's sometimes difficult.
And today and tomorrow we are going to run into
those difficulties and I'll ask you to be patient.
But we're on time for getting this matter concluded,
so if you will follow the courtroom deputy. Come back at
1:30.
THE COURT: Now outside the presence of the jury, is
there anything we should take up?
MS. LIPOVSKY: No, Your Honor.
MR. CREAGER: No, Your Honor.
THE COURT: We'll see you at 1:30. We stand in
recess.
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(11:03 a.m. - Recess Taken)
(At 1:45 p.m. on May 29, 2007, with counsel for the
THE COURT: I apologize for the delay. May I bring
the jury in?
MS. LIPOVSKY: Yes, Your Honor. I was notified by
the marshal that he's a little concerned about being able to
bring one of our witnesses in, depending on the status of
some other hearings in other courts, because he's real
shorthanded today.
So we may need to, depending on how things go, we
may need another break, but not right now.
THE COURT: I presume the marshal will let me know
if that becomes a problem. Bring the jury in, please.
MR. EVERETT: Just so the court knows, our first
witness, we are recalling Chris Zangari from ATF.
We want to clear up a loose end we fear we left
hanging with him last week.
of the jury:)
THE COURT: Please be seated. Ladies and gentlemen,
I'm sorry to keep you waiting.
There were numerous hearings going on over the noon
hour.
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CHRISTOPHER R. ZANGARI - DIRECT EXAMINATION
997
The marshal's service was having to attend to a
variety of hearings, and so we got slowed down just a little
bit. Counsel, you may proceed.
MR. EVERETT: Thank you, Your Honor. We recall
Chris Zangari.
THE COURT: Sir, if you will retake the witness
stand, please. You'll need to be re-sworn.
COURTROOM DEPUTY: Please state your name for the
record.
THE WITNESS: Christopher Ryan Zangari.
Z-A-N-G-A-R-I.
CHRISTOPHER R. ZANGARI, PLAINTIFF'S WITNESS, SWORN
DIRECT EXAMINATION
BY MR. EVERETT:
Q. Mr. Zangari, you testified last week; is that right?
A. That's right.
Q. And you told us you were an industry operations
investigator with the ATF; is that right?
A. That's correct.
Q. You talked about a firearm trace summary that has been
received in evidence in this case as Exhibit 82?
A. That's correct.
MR. EVERETT: Your Honor, may I approach the
courtroom deputy and retrieve that exhibit?
THE COURT: You may.
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998
BY MR. EVERETT:
Q. I want to, I think, try to clear up some testimony about
the last section of the last page on that exhibit, the
section designated, "The following individual was reported to
be in possession of the firearm." Do you see what I'm
talking about?
A. This section down here?
Q. Yes.
A. Yes.
Q. Could you explain, I guess briefly, to the jurors how it
is that the ATF tracing center receives trace requests and
how it is that the last section of this exhibit is generated?
A. Okay. The way it works is a law enforcement agency, if
they wish to request a firearms request from ATF, they submit
a form known as ATF form 3312.1 and on that form it has --
Q. What is that called in English?
A. It's called National Tracing Center trace request form.
Q. And it has --
A. It has, I believe it's eight sections. Let me make sure.
It has eight sections that are completed by the law
enforcement agency.
Q. By the law enforcement agency who is making the request?
A. That's correct, and it identifies the law enforcement
agency making the request, it identifies the firearm
information, it requests possessor information, it requests
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999
associate information and firearm recovery information.
Q. So if a law enforcement agency has a firearm that they
seize from a scene, let's say, they would fill that
information out and indicate who the firearm was found in
possession of and the location in which it was found?
A. On the request form that they submit.
Q. And is that characterized as recovery information?
A. That's correct, yes.
Q. If a law enforcement agency finds or recovers a firearm,
that gets reported on the request form?
A. Correct. Yes. That's what the request form asks for.
It asks for the recovery location and the possessor
information, correct.
Q. Is that recovery information then included on the trace
summary form that is sent back to the law enforcement agency?
A. That's correct. Yes. What is provided -- ATF kind of
stops on the records that we're able to confirm in our
possession, right at this point right here, where we are able
to confirm from the records we have on file, the 4473, the
firearms transaction record as you recall we discussed
previously, where we can absolutely certainly say that on
January 4th -- is that correct -- January 4, 1995, Mr. Steve
James McCaul acquired and purchased the firearm on that
specific date.
Information below that line pertains to what is
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1000
provided by the law enforcement agency making the request
form and filling out the information on the trace request.
Q. The trace request form itself, does that include a
section entitled possessor information?
A. It does, yes.
Q. That's filled out by the law enforcement agency who makes
the request?
A. That's correct.
Q. And is that the information that is then essentially
regurgitated in this last section that we're looking at on
Exhibit 82?
A. Yes, that's correct.
Q. The reported to be in possession of, that's essentially a
regurgitation of information that had been provided by law
enforcement in the request form itself?
A. That's correct.
Q. And does not reflect a determination by ATF that in this
case Mr. McCaul was found to be in possession of the firearm?
A. That's correct, yes. ATF does not make that
determination.
Q. And similarly if the law enforcement agency making the
request in this case had reported recovery information, would
that information be reflected in Exhibit 82?
A. Absolutely, yes.
Q. And there is no such information reflected in Exhibit 82;
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1001
is that right?
A. No, there is not, and it would be on the next line, I
believe, or in between -- let me check a sheet here -- yes,
it would be the next line after the individual possessor
information, the next step, if there was recovery information
about where the firearm was found, it would be listed next
after that.
Q. What law enforcement agency made the request for the
trace summary in this case?
A. We have on file that the FBI made the request.
Q. And that was when?
A. I have a request date that it was entered into the system
of December 1, 2005.
MR. EVERETT: Thank you. Nothing further, Your
Honor.
THE COURT: Mr. Creager?
MR. CREAGER: I don't have any questions, Your
Honor.
THE COURT: Thank you, sir. You may step down.
Please leave our exhibit there, if you will.
MR. EVERETT: Your Honor, if I may approach I'll go
ahead and fetch the exhibit.
THE COURT: Thank you. Ms. Lipovsky.
MS. LIPOVSKY: We call Ken Koziol.
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KENNETH KOZIOL - DIRECT EXAMINATION
1002
THE WITNESS: Kenneth F. Koziol. K-O-Z-I-O-L.
KENNETH F. KOZIOL, PLAINTIFF'S WITNESS, SWORN
DIRECT EXAMINATION
BY MS. LIPOVSKY:
Q. Place state your business address.
A. 575 South 10th street, Lincoln, Lancaster County,
Nebraska.
Q. By whom are you employed?
A. City of Lincoln, Lincoln Police Department.
Q. In what capacity are you employed there?
A. I'm a sergeant in the criminal investigations unit.
Q. How long have you been employed by the Lincoln Police
Department?
A. 29 years.
Q. And have you had assignments other than with the criminal
investigations unit?
A. Yes, I have.
Q. What other assignments have you had?
A. I have been sergeant supervisor working nights on the
street in uniform.
I've been assigned to the technical investigations
unit, which is known as the white collar crime unit. I
supervised that unit for some time.
I was in internal affairs as an internal affairs
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1003
investigator.
Also a member of the SWAT team, a hostage
negotiator, and finally came to criminal investigations in
approximately 1997.
Q. You've been there since?
A. Yes.
Q. You're also the case officer in this particular case?
A. Yes, I am.
Q. And you are a commissioned police officer?
A. Yes.
Q. And have you had the requisite training for basic
education and continuing ongoing in-service training to
assist you in performing duties as a sergeant in the criminal
investigations unit?
A. Yes.
Q. Do you recall the address in 1997 of Matt's Bar?
A. Address would have been 100 North 8th Street.
Q. And how far is that from 801 South 9th Street?
A. It would be approximately seven blocks.
Q. Did you assist Sergeant Barksdale in reviewing certain
evidence with the RUVIS machine?
A. Yes, I did.
Q. Where do you recall that taking place?
A. That took place in the criminal investigations conference
room, which is adjacent to the property division, and that
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1004
was at 575 South 10th street.
Q. When did that take place?
A. That occurred, I believe, on August 26th of 2003.
Q. And on that occasion were you wearing gloves?
A. Yes.
Q. Was Sergeant Barksdale also?
A. Yes.
Q. What was your participation in that event?
A. Sergeant Barksdale and I made a decision to examine some
property for fingerprints and also try to determine if there
were any items that should be checked for DNA.
I was able to facilitate receiving certain property
from the property division, signed it out and met with
Sergeant Barksdale where he attempted to use the RUVIS
machine to try to obtain fingerprints from some of this
property.
Q. You helped facilitate receiving property, meaning you got
the property out of the property room?
A. Yes.
Q. Took it to the conference room?
A. I took the property, checked it out from the property
division, and then took it to the conference room where
Sergeant Barksdale and I did our examinations.
MS. LIPOVSKY: May I approach the courtroom deputy?
THE COURT: Yes.
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1005
BY MS. LIPOVSKY:
Q. Sergeant Koziol, in front of you is Exhibit 44-A; is that
correct?
A. Yes.
Q. And have you seen Exhibit 44-A before?
A. Yes, I have.
Q. Where have you seen it before?
A. I first saw this exhibit in the conference room in the
criminal investigations unit on August 26th of 2003.
Q. Is that an item that was reviewed using the RUVIS
machine?
A. Yes.
THE COURT: Pardon me. Ms. Lipovsky, would you
spell the name of that machine?
MR. EVERETT: I believe it's --
THE COURT: Or ask the officer to help you with
that, if you can, or just give us the phonetic spelling.
MS. LIPOVSKY: I believe it's R-U-V-I-S.
THE COURT: So when we are taking notes, we could
use that for whatever, RUVIS, am I pronouncing that close
enough?
MS. LIPOVSKY: I generally hear it RUVIS, is what
I've heard it pronounced.
THE COURT: Thank you.
BY MS. LIPOVSKY:
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1006
Q. Could you again review for the court what Exhibit 44-A
consists of?
A. It consists of -- first of all it's attached to a
property report. The property report number is P9709714.
This item was tagged in by Investigator Jeff Howard
on June 15th of 1997.
It has a case number and address this was brought in
from.
And on the property report itself it indicates that
it's an ashtray from the living room floor.
Q. Could you inspect Exhibit 44-A and describe, besides the
property report and brown manila envelope, what it consists
of?
A. The property report is attached to a brown manila
envelope, and inside the envelope is a glass ashtray, as well
as an empty baggie.
Q. You can take those items out, please. Does that appear
to be the ashtray that you provided to Sergeant Barksdale
that day for investigation using the RUVIS machine?
A. Yes.
Q. Inside the -- besides the ashtray, what was in the
manilla envelope?
A. There is a baggie, it's empty, with some residue in it.
Q. Had you seen that baggie before?
A. Yes.
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1007
Q. How do you know?
A. I have my writing on the envelope indicating the case
number, the date, and a time of 1536 hours, which would be
3:36 p.m.
Q. For what reason did you place your identifying
information on that baggie?
A. To indicate that I had examined the items and had
manipulated the items on that specific date.
Q. On the date that you wrote your identifying information
on the baggie, were there any contents in the baggie?
A. Yes.
Q. What was in the baggie?
A. Inside the baggie, to the best of my recollection, was
the ashtray, as well as three partially consumed cigarette
butts.
Q. And do you recall what happened to the three partially
consumed cigarette butts that were also part of the plastic
bag and the contents?
A. In order to protect the cigarette butts we handled this
piece of property with latex gloves.
Sergeant Barksdale wanted to try to fingerprint the
glass ashtray, so he directed me to take the cigarettes from
the ashtray and place them in a baggie.
Q. And did you do that?
A. Yes.
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1008
Q. And after you had done that, what did you request be done
with the cigarettes in the baggie?
A. Once we were done doing the examination, the ashtray, the
cigarette butts, were all placed back in the manila envelope.
These were returned to the property division and
they put it in their custody according to their procedures.
I then filled out a lab submittal form.
Q. What is a lab submittal form?
A. When we send items to the state laboratory for any type
of analysis, we write a case number on this form. It's a
standard form that we use.
We write our names, a brief description of the
nature of the case.
And then we put the item that we want examined, we
put the property number and what the contents are of that
specific property, and then we in another space fill out the
examination that we want done.
Once we fill out this form, we just give it to the
property division and then they take care of our request.
Q. Did you specify what type of test you wanted done on the
cigarette butts?
A. Yes.
Q. What did you ask for?
A. To examine the cigarette butts for DNA.
Q. And did you have an opportunity to review the property
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1009
records regarding Exhibit 44-A?
A. Yes.
Q. And did that show whether or not that was taken by
property personnel to the Nebraska State Patrol Crime Lab?
A. Yes.
Q. Do you recognize the initials of the person who
reportedly took that to the crime lab?
A. Yes.
Q. Who was it that took that item to the crime lab?
A. Diane Campbell.
Q. And who is Diane Campbell?
A. She's employed with the property division. I'm not sure
of what her title is. I believe it's property clerk.
Q. She has worked at LPD property for a while?
A. Yes.
Q. When was that taken to the state patrol lab, according to
the records of the property department?
A. It was August 28th of 2003.
Q. Could I have you put Exhibit 44-A back together? As part
of your work in this case, did you obtain any DNA samples
from any individuals connected to this case?
A. Yes, I did.
Q. Did you collect DNA samples from the defendant?
A. Yes.
Q. From Mr. Waldbaum?
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1010
A. Yes.
Q. From Mr. Kempton?
A. Yes.
Q. What was the procedure that you used in obtaining the
samples?
A. There are several steps. You obtain a carton, a swab
carton, from the property division.
The carton is in a flattened position and you have
to manipulate that carton and it's kind of stuck together
until it becomes loose and you make an actual box shape with
it.
This allows for you to take a swab and insert it
into that carton once you take a sample from somebody.
Secondly, the swabs themselves are contained in a
sealed packet.
There are two swabs in there. They have a cotton
formation on one end, and then the other end is just a stick,
so it's kind of a typical cotton type of swab.
Q. Looks like a Q tip with only one end?
A. Yes. Very good.
Q. You said that the swabs are sealed?
A. Yes.
Q. What is the reason for them being sealed?
A. To maintain their integrity. To make sure that they are
not contaminated in any way.
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1011
Q. And you said that the swab cartons are flattened, but are
kind of stuck together?
A. Yes.
Q. So nothing is passing through them before you open the
carton and put it into a rectangular or square shape?
A. Yes.
Q. Once you have the swab out and the carton ready, let me
ask you, on the carton is it like preprinted with certain
information you need to place on it?
A. Right. It has certain blanks to fill in each time that
you take a sample from an individual.
Q. Is this carton and the swabs provided to you through the
Lincoln Police Department?
A. Yes.
Q. When you have the container ready, and the swabs, how do
you actually use the swabs in regards to an individual?
A. Well, prior to even opening up the carton, or taking the
swabs out, we put latex gloves on.
Once we have the carton prepared, we advise the
individual that we would like to have a sample for DNA and we
instruct them on how it needs to be done.
Normally we will ask to retrieve one of the swabs
out with their own hands, so we'll peel it open, they'll
reach over, grab the stick end of the swab, and they will put
that swab inside their mouth.
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1012
And we instruct them to swab the inside of the cheek
rather vigorously.
Once they are done they take it and slide it
themselves back into the carton.
And then we have them also swab the opposing cheek
on the inside and either put it in that carton or make a
separate carton for another side of the cheek. Then we close
that carton.
Q. And do you take steps to ensure that this swabbing motion
that was done appears to be sufficient to obtain a sample?
A. Yes.
Q. You watch the individual?
A. Yes.
Q. You said that you had obtained samples from Waldbaum,
Kempton, and Hoover, correct?
A. Yes.
Q. Did you obtain those samples pursuant to a search warrant
on each individual?
A. Yes.
Q. I notice you are changing gloves. Why are you doing
that?
A. Due to the fact that I just did an examination from the
previous report with the ashtray and I didn't want to
contaminate the next property that you set before me.
Q. Do you have Exhibit 85?
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A. Yes.
Q. Can you identify what Exhibit 85 is, please?
A. It's a manila envelope that is attached to a property
report.
And inside the manila envelope are two swab specimen
cartons and one envelope containing hair.
These particular items were obtained on March 2nd of
2006 and they were obtained from Benjamin Waldbaum.
Q. Who collected those items?
A. I did.
Q. And did you follow the procedure that you just testified
to when you collected that sample from Benjamin Waldbaum?
Let me direct your attention to, I think there are
two cardboard containers with swabs inside; is that correct?
A. Yes.
Q. Regarding the cardboard containers with the two swabs
inside, did you follow the procedure you described regarding
use of the kits and instructions and obtaining use of the
swabs?
A. Yes.
Q. Did you feel that you had a sufficient sample from
watching Benjamin Waldbaum swab the inside of both cheeks
that the collection of DNA was complete?
A. Yes.
Q. And specifically on Exhibit 85, does your writing appear
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anywhere on that exhibit?
A. Yes.
Q. Where does it appear?
A. Initially my writing appears on the property report. My
writing also appears on the manila envelope which contained
the cartons and a packet containing hair.
On the two cartons I have the case number listed. I
have Benjamin Waldbaum's name listed as the patient name,
collected by myself, Sergeant Koziol, on 3-12-06, and I give
a time of 1212 hours, which would be 12:12 p.m.
The envelope itself contains the case number,
initials, as well as the property number.
Q. You placed that on there?
A. Yes.
Q. And the carton itself and the contents, has there been
any change to the swabs inside those cartons?
A. Yes.
Q. What is the change?
A. It appears that there is some coloration to the cotton
ends of the swabs. That wasn't there when I collected it.
Q. Other than that, are the swabs and the containers in
substantially the same condition as when you collected them
from Benjamin Waldbaum?
A. Yes.
Q. The exhibit also has -- you said there was another
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container in there beside the ones with the swabs?
A. Yes.
Q. And it has what in it?
A. It has some head hair samples from Benjamin Waldbaum.
Q. Did you collect those from Benjamin Waldbaum?
A. Yes.
Q. How did you do that?
A. Instructed him on wanting several different samples and
as a matter of fact he would pull the hair and place it into
the envelope and then I sealed the envelope.
Q. Does your writing appear on the envelope?
A. Yes.
Q. What information did you place on the envelope?
A. The case number, the property number, the date, time, and
my initials.
Q. And is it in substantially the same condition as when you
collected it from Benjamin Waldbaum?
A. Do you want for me to try to open this envelope?
Q. Does it appear it has been opened?
A. Does not appear.
Q. Does it appear to be in substantially the same condition
as when you collected it?
A. Yes.
Q. And how did you seal that envelope?
A. There's a piece of tape that is placed across to keep the
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1016
envelope shut.
Q. If I could have you place the envelope with the hair and
the cartons with the swabs and all those items back into
Exhibit 85, please. Have you now done that?
A. Yes.
Q. Thank you. Again I note you're changing gloves. Is that
for the same reason?
A. Yes.
Q. You want to avoid cross-contamination?
A. Yes.
Q. I believe in front of you is now Exhibit 86; is that
correct?
A. Yes.
Q. And can you identify for the jury what Exhibit 86 is?
A. 86 contains a one swab carton which contains two swabs,
and this is under property number Q0607126.
The carton is contained in a manila envelope, which
is attached to the property report.
Q. And does your writing appear there?
A. Yes.
Q. Does it appear on the property report?
A. Yes, it does.
Q. Does it also appear on the manila envelope?
A. Yes.
Q. And does it also appear on the carton inside? Do you
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1017
need scissors? ?
A. I think I am getting it out. A little bit of damage on
the envelope. I'm sorry. Your question?
Q. If your writing appeared on the carton inside of the
manila envelope.
A. Yes, it does.
Q. Does it have the same identifying information, the
property number, your name, the date collected, the time, who
it was collected from?
A. On this I don't have the property report number on it.
However, I do have the case number, the name of the
individual, my name, the date it was collected and the time.
Q. And what was the date this was collected?
A. This was collected on March 29th of 2006.
Q. And did you follow the same procedure that you earlier
testified to in having the individual swab first one side of
his cheek and then the other side of the check?
A. Yes.
Q. Who was it that was providing this DNA sample?
A. This would have been Brian Kempton.
Q. And after he had swabbed the inside of his cheek, did it
appear to you it had sufficient saliva on it to afford a good
DNA sample?
A. Yes.
Q. Did you then complete the test by placing the swabs into
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1018
the carton?
A. I had him place the swab into the carton.
Q. Prior to using this test kit, were the swabs sealed?
A. Yes.
Q. And was the container in the same flattened condition
that you testified to earlier?
A. Yes.
Q. And the item which is the carton with the swabs, does it
appear to be in substantially the same condition as when you
collected it from Brian Kempton on the 29th of March of 2006?
A. Yes.
Q. And does this exhibit contain a hair sample?
A. No.
Q. Why not?
A. Mr. Kempton had his head shaved at the time that we
contacted him.
Q. Did you feel that you still had a sufficient sample to
allow a DNA test to be performed by the lab?
A. Yes.
Q. So you didn't really need the hair on that particular
occasion?
A. That's correct.
Q. If I could again have you put the items that comprise
Exhibit 86 together and back into the manila envelope. Did
you do that already?
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1019
A. Yes.
Q. Thank you. Once again, Sergeant Koziol, you've changed
gloves?
A. Yes, I have.
Q. In front of you is Exhibit 87; is that correct?
A. Yes.
Q. Can you identify what Exhibit 87 is, please?
A. Exhibit 87 consists of two swab carton boxes containing
cotton swabs.
These swabs were obtained on March 2, 2006. The
property report number is Q0604854 and the swabs were
received from Jeffrey Hoover.
Q. And is that the Jeffrey Hoover who is seated at defense
table in the short sleeve blue shirt?
A. Yes.
Q. You personally took this from Jeffrey Hoover?
A. Yes, I did.
Q. And were the swabs sterile and in containers at the time
that you took this test?
A. Yes.
Q. There are two boxes there, correct?
A. Yes.
Q. Were the boxes in the flattened condition?
A. Yes, they were.
Q. Did you take steps to make sure they remained sterile
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1020
until they were used?
A. Yes.
Q. Did you follow the same procedure that you've earlier
testified to regarding the individual swabbing the inside of
one cheek and then the other?
A. This one was different in the respect that I instructed
Mr. Hoover on how I wished for him to grasp the swabs and to
swab the inside of his cheek.
He informed me that he wasn't going to do my job;
however, he allowed me to take the oral swabs, which I did.
Q. So in this particular case you were the person handling
the swab?
A. Yes.
Q. Did you take precautions to avoid contamination?
A. Yes.
Q. What did you do?
A. I had my latex gloves on. I unsealed the swabs, grasped
them by the wooden stick portion.
Mr. Hoover did open his mouth for me. I took a swab
from one particular cheek from the inside, did it rather
vigorously, placed it in the box, closed that box, and then
took another packet with swabs and swabbed the other cheek
and put that in the box and that was completed.
Q. Did you feel that you had obtained a sufficient sample to
allow you to test for DNA from the cheek saliva?
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A. Yes.
Q. And on the cartons did you place identifying information?
A. Yes, I did.
Q. And does it appear to be in substantially the same
condition as when you collected it from Mr. Hoover?
A. Yes.
Q. That was on March 2, 2006?
A. Yes.
Q. Is there a hair sample in Exhibit 87?
A. No.
Q. Why not?
A. Mr. Hoover had his head shaved.
MS. LIPOVSKY: May I have a moment?
THE COURT: Yes.
MR. CREAGER: I don't have any questions, Your
Honor.
THE COURT: You may step down, sir.
MS. LIPOVSKY: May I retrieve the exhibits?
THE COURT: Sure.
MS. LIPOVSKY: May I have one moment to consult with
the marshal?
Your Honor, I have asked the marshals to retrieve
the next witness.
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JOHN E. McCAUL - DIRECT EXAMINATION
1022
THE COURT: Thank you. Just have a seat there, sir,
and hold on for just a moment, please.
I've excused one of our jurors. She will be right
back.
Ms. Lipovsky, will you identify your witness for us,
please?
MS. LIPOVSKY: Yes, sir. This is John McCaul.
THE COURT: Mr. McCaul, if you will follow this
lady's directions, she will swear you in.
THE WITNESS: John Edward McCaul, Jr. M-C-C-A-U-L.
JOHN E. McCAUL, PLAINTIFF'S WITNESS, SWORN
THE COURT: Mr. McCaul, would you lean forward and
put your elbows on the desk in front of you just exactly like
that?
THE WITNESS: Okay.
THE COURT: And speak directly into the microphone.
The lawyers will be asking you questions from that standing
podium. Ms. Lipovsky, you may proceed.
DIRECT EXAMINATION
BY MS. LIPOVSKY:
Q. Mr. McCaul, are you currently incarcerated?
A. Yes, I am.
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1023
Q. Do you have a permanent designation yet?
A. Not yet.
Q. And where have you been residing the past few weeks?
A. Leavenworth Detention Center.
Q. Are you currently serving a federal sentence?
A. Yes.
Q. You are here today testifying at the request of the
government and pursuant to a plea agreement?
A. Yes.
THE COURT: Mr. McCaul, will you speak directly into
the microphone? Thank you.
MS. LIPOVSKY: Your Honor, may I approach the
witness?
THE COURT: Yes, you may.
BY MS. LIPOVSKY:
Q. Mr. McCaul, I've given you what I believe is Exhibit 91;
is that correct?
A. Yes.
Q. Can you identify what Exhibit 91 is?
A. This is my plea agreement.
Q. And is that a copy of your plea agreement or the
original?
A. I believe it's a copy.
Q. Does your signature appear on that item?
A. Yes, it does, on the last page, number four.
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1024
Q. And if you just look at that, I'm going to ask you if
that appears to be a true and accurate copy of your plea
agreement?
A. I believe it is, yes.
MS. LIPOVSKY: I would offer Exhibit 91.
MR. CREAGER: No objection, Your Honor.
THE COURT: 91 is received.
BY MS. LIPOVSKY:
Q. Mr. McCaul, what kind of responsibility do you have under
your plea agreement?
A. Just to tell the truth, if I'm needed for something. I'm
not exactly sure as to all the legalities of it.
Q. Have you agreed to cooperate with the government if
requested?
A. Yes.
Q. Is that one of the reasons why you're here today?
A. Yes.
Q. In return for your cooperation, are you hoping for some
kind of benefit?
A. You can hope for it, yeah, but it's not guaranteed.
Q. What kind of benefit are you hoping for?
A. Maybe a downward departure.
Q. And that would be a review by the court of your sentence
and maybe a lessening of your sentence?
A. It could be.
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1025
Q. Now, you said there is no guarantee. Do you know who
would request the court to review your sentence?
A. I think it's the prosecutor.
Q. The United States Attorney for the District of Nebraska?
A. Yes.
Q. And according to your plea agreement and your
understanding, who determines whether or not your cooperation
has been of substantial assistance to allow that request to
be made?
A. I believe it's the prosecutor.
Q. Again, the United States Attorney?
A. Yes.
Q. It's not you?
A. No.
Q. And the United States Attorney, it's not your lawyer, the
United States Attorney for the District of Nebraska?
A. Yes, it is.
Q. Sir, let's say that your case is reviewed. Is there any
guarantee that the United States Attorney for the District of
Nebraska is going to agree that your cooperation has been
substantial?
A. No.
Q. Let's say a review is made and that determination is made
and there is a request filed by the United States asking the
court to review your sentence.
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1026
Is there any guarantee that the judge will grant
your request?
A. No.
Q. Is there any guarantee, even if the court does grant it,
that the reduction would be as much as you want?
A. No.
Q. You're hoping that something will happen, correct?
A. Yes.
Q. But there's no guarantees?
A. Exactly.
Q. What happens if you violate your plea agreement?
A. If definitely probably wouldn't be considered.
Q. What wouldn't be considered?
A. The plea agreement.
Q. So it goes away?
A. I'm not exactly sure, but --
Q. Does it release the government from their having to ask
for a reduction?
A. Yes.
Q. And if you falsely testify, would that be violating your
plea agreement?
A. Yes, it would.
Q. You took an oath today?
A. Yes.
Q. You swore to tell the truth?
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1027
A. Yes.
Q. Do you know what perjury is?
A. Yes.
Q. What is perjury?
A. When you're lying on the stand.
Q. Do you also know what obstruction of justice is?
A. Yes.
Q. And in this case you're currently serving a sentence?
A. Yes.
Q. And what is that sentence for?
A. For trafficking in a firearm.
Q. Do you recall when you were sentenced?
A. January 30th of this year.
Q. And what was your sentence?
A. Fifteen years.
Q. Did you have --
THE COURT: Ms. Lipovsky, I don't think it's
entirely clear whether this was prosecuted in federal court
or state court and I'll leave it to you to address.
BY MS. LIPOVSKY:
Q. You said that you were convicted of trafficking in a
firearm?
A. Yes.
Q. And in Exhibit 91, in the first paragraph, does it set
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1028
out what you actually pled to?
A. Yes, it does.
Q. What exactly did you plead to?
A. Fifteen years, one hundred dollar fine, and I wound up
getting five years supervised release instead of three.
Q. Directing your attention to the second line under
paragraph one --
A. Yes.
Q. What was it that you pled to?
A. Possession of a firearm by a felon.
Q. So a felon in possession of a firearm is what you were
charged with and pled to, correct?
A. Yes.
Q. And I don't remember offhand the exact part, but there
was a second count that was also dismissed as part of this
agreement; is that correct?
A. Yes, there was.
Q. That was a benefit you did receive, I believe that's in
paragraph three on page two, you've already received that
benefit, correct?
A. Yes, I did.
Q. Was that in federal court?
A. Yes, it was.
Q. And you were sentenced out of Omaha?
A. Yes.
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1029
Q. Now, in order to be a felon in possession of a firearm
you had to have a prior felony; is that correct?
A. Yes.
Q. Did you have a prior conviction for three robberies in
1990?
A. Yes, I did.
Q. Do you recall when you were paroled on that?
A. July 28, 1997.
Q. In the past ten years, do you have any other convictions
regarding truthfulness?
A. No.
Q. In the past ten years, do you have any other felony
convictions, other than these three robberies?
A. No, that's it.
Q. How old were you when you did those robberies?
A. I was 19.
Q. You were 19?
A. Yes.
Q. And were they done at or near the same time?
A. Same day.
Q. Mr. McCaul, where were you born?
A. Omaha, Nebraska.
Q. And have you lived in Nebraska your entire life?
A. Yeah, I've lived in the Nebraska area my whole life.
Q. Lived in Lincoln for a while?
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1030
A. Yes.
Q. And prior to your arrest you are currently serving your
sentence for, what kind of employment did you have?
A. I owned a security company, a bar, and mixed martial arts
company.
Q. The security company, did you have to be bonded to do
that?
A. No, I didn't.
Q. Why not?
A. You don't have to do bonding for like manual, like watch
security, or building security systems; only for doing
private investigation, and I didn't do that.
Q. Did your company have a name?
A. Security Alternatives.
Q. Security Alternatives?
A. Yes.
Q. And how long did that business exist?
A. About six years.
Q. You said you also had a martial arts gym?
A. Yes.
Q. When was that?
A. About three years ago approximately.
Q. And do you know martial arts?
A. Yes.
Q. Did you actually teach martial arts?
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1031
A. Yes. I teach it and I promote it.
Q. What kind of martial arts do you teach?
A. Ju-Jitsu and -- it's mixed martial arts, we do a
combination of quite a few different styles.
Q. How long have you been interested in that type of, I call
it self-defense; is that correct or incorrect?
A. That would be -- yeah, that would be correct. It is.
Q. How long have you been interested in that?
A. My whole life. Even when I was younger I boxed and
wrestled.
Q. Also at one point were you a fight promoter?
A. Yes.
Q. You have lived in Nebraska your whole life. How many
kids in your family?
A. In my -- my children?
Q. I'm sorry. How many siblings do you have?
A. I have five.
Q. And is one of them Steve McCaul?
A. Yes.
Q. What is your educational background?
A. It's in business college, electrician, and I have a
certificate in industrial maintenance.
Q. You were paroled in 1997, correct?
A. Yes.
Q. Where did you go to live when you were paroled?
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1032
A. Eagle, Nebraska.
Q. Who did you live with there?
A. Phyllis McCaul. That would have been my mother.
Q. And at that time where was your brother Steve living?
A. He was living in Lincoln.
Q. Do you know where?
A. It was -- I don't know the exact address, but it was in
the apartment complex one block off of Cornhusker.
Q. And can you just generally describe the building that he
lived in?
A. It was two stories. All the doors to the entrances were
all in front on the top tier and bottom, so all you had to do
was walk upstairs and walk in, the parking lot where you pull
in, and all the doors faced the parking lot.
Q. Were there any convenience stores in the area?
A. Yeah, about two blocks.
Q. Who did Steve live with at that time?
A. Shanda McCaul, his wife, and his two children, and I
would stay there a little bit off and on.
Q. Why were you staying there?
A. Just hanging out. I never -- I didn't know anybody in
Eagle.
Q. So would you stay overnight sometimes?
A. Yeah, sometimes.
Q. How often do you think you were staying there when you
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1033
first were released?
A. I think there was a month that I stayed there quite a
bit, more than the rest of the time. I was staying there
probably one every three days.
Q. Did you meet other individuals while you were there?
A. Yes.
Q. Did you develop some friendships?
A. Yes.
Q. Do you know Jeff Hoover?
A. Yes, I do.
Q. Is Jeff Hoover present in the courtroom today?
A. Yes, he is.
Q. Could you identify where he is seated and what he has on?
A. He's to my left, has on a blue shirt.
Q. There are two blue shirts at the table. Could you be
more specific?
A. Lighter blue.
Q. Is it short sleeve?
A. Yes.
Q. Does he have a tie on?
A. No.
MS. LIPOVSKY: I would ask the record to reflect the
witness has identified the defendant.
THE COURT: It will.
BY MS. LIPOVSKY:
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1034
Q. How did you meet Jeff Hoover?
A. Through my brother Steven.
Q. How did that come about?
A. He would come over to the house quite a few times while I
was there, and that would have been Steven's apartment.
Q. When you say he, do you mean Jeff Hoover?
A. Yes.
Q. Do you recall when you first met Jeff Hoover?
A. Yeah. It was over at Steven's house.
Q. About how long was it after you had been released from
prison?
A. About two weeks.
Q. So --
A. Beginning of August.
Q. I'm sorry?
A. The first or second week of August of '97.
Q. Did you see Jeff Hoover more than once after you met him?
A. Yes.
Q. And do you recall how often he would come over, Jeff
Hoover would come over?
A. It would kind of be in spurts. Sometimes he would come
over every day for a week and then you wouldn't see him for a
week or so.
Q. Did you talk with Jeff Hoover from time to time?
A. Yes.
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1035
Q. And did Jeff Hoover ever make any statements to you
regarding a couple of deaths in Lincoln?
A. Yes, one time.
Q. Do you recall approximately when that was?
A. About the third time I met him.
Q. Would that still be August?
A. Yeah, about the middle of August.
Q. Do you recall who was present?
A. Just me and him were outside. There was other people in
the apartment.
Q. Where were you outside?
A. Right in front of Steven's doorway, right in front of the
apartment complex.
Q. Is this in the parking lot area?
A. Yes. It's on the bottom stairs, right where the cars
are.
Q. And you said it was just the two of you?
A. Yes.
Q. Do you know who else was at your brother's apartment that
day?
A. Yes.
Q. Who else was inside?
A. A friend named Nate. Shanda, Steven's wife, and Steven
and his two children.
Q. Approximately what time of day was this?
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1036
A. It was closer to the evening. It was still daylight.
Q. Who was at the apartment first, you or Mr. Hoover?
A. Me.
Q. Were you present when he arrived?
A. Yes.
Q. Do you recall how Mr. Hoover got to your brother's
apartment?
A. I guess he drove his car.
Q. What do you recall about his car?
A. I'm not very good with cars, but reminded me of like an
'80s muscle car.
Q. Do you recall what color it was?
A. Blue, a darker color.
Q. And what was the first contact then that was had between
you and Mr. Hoover on that occasion?
A. What was that again?
Q. Let me rephrase the question. It wasn't very good. You
saw Mr. Hoover drive up; is that correct?
A. Yes.
Q. Did he get out of the car?
A. Yes.
Q. Did he come talk to you?
A. Yes.
Q. And was there anybody else that came out and talked to
you or came out and talked to you at that time?
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1037
A. No.
Q. Do you recall what you and Mr. Hoover were talking about?
A. We just kind of started out with hey, how are you doing,
and kind of went into me doing time, because he knew I had
done quite a bit, and all the things that kind of go with
doing time in prison and stuff.
Q. How much time had you just completed?
A. I did a little over seven years.
Q. Did Mr. Hoover appear interested in that?
A. A little bit, yeah.
Q. What kinds of things did Mr. Hoover ask you about that?
A. About how you handle and hold yourself while you are in
the prison.
A couple of things he did ask me was what do you do
when somebody comes up and they try to handle business with
you, fight with you, or try to single you out, and basically
told him you have to hold your own, stand your ground.
Q. Did you ever comment to Mr. Hoover on whether or not it
was a good place to be?
A. No, it's not a good place to be.
Q. Did you tell that to Mr. Hoover?
A. Yeah, something you don't want to do.
Q. I'm sorry?
A. Something you don't want to do.
Q. Did that dissuade Mr. Hoover from talking with you about
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1038
your prison experience?
A. No.
Q. And during the course of that conversation, did
Mr. Hoover mention any action that he had done?
A. Yeah, he said he's pretty good at handling himself.
Q. Did he explain to you how he was good, pretty good at
handling himself?
A. Yeah, I've known him to be in a few fights.
Q. Did you talk about that?
A. Yeah, we talked about -- actually, no, we didn't talk
about the actual fights that he was in at that time.
But when we did start talking about it, he said he
could handle his own with his hands, himself with his hands.
Q. Did he give you any specific example of how he could
handle himself?
A. He told me he has had to take out a couple people. I
think his exact phrase was whack them.
Q. When Mr. Hoover said he had to whack some people, did he
say how many?
A. There's two.
Q. How did you respond to that?
A. I kind of gave him a weird look, said I thought whack
meant beat them up, but he rephrased it and said no, I killed
them.
Q. Those were the words he used?
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1039
A. Yes.
Q. How did you respond?
A. At the time I didn't really believe him. I just thought
he was talking himself up. I didn't take it real seriously.
Q. Did you say anything to Mr. Hoover when he said I killed
them?
A. Did I say anything to him?
Q. Yes. Did you respond to him by saying anything?
A. I gave him a weird look, and then he said he killed them.
I go really, and the conversation just kind of went into --
went from him driving off -- he had to go deal with some
people and kind of felt like -- I got the impression it was a
drug deal. He didn't feel comfortable with it.
Q. This is information that Mr. Hoover is telling you?
A. Yes.
Q. This is after you gave him kind of a --
A. Yes.
Q. I didn't hear the word you used, but your response that
you said.
A. As far as what he said, I was like yeah.
Q. Like yeah --
A. Yeah.
Q. Sarcastic or not believing?
A. Yeah, kind of like not sure.
Q. Did Mr. Hoover explain to you what happened?
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1040
A. Yes.
Q. What information did he tell you about the two people
that he had whacked or --
A. That he was going to go handle some business with some
people, he didn't feel comfortable about it, so he had to go
back and get a gun.
He kind of gave me the idea it was a big gun by the
way he was holding his hands.
Q. How was he holding his hands?
A. Like this.
Q. And because we don't have a video record, would you kind
of describe how he was holding his hands?
A. Hands are one in front of the other, probably about eight
inches apart like he was holding a bigger gun.
Q. And he had his hands across the front of his chest?
A. Yes.
Q. One hand a little higher than the other?
A. Yes.
Q. Why did you think that referred to a bigger gun?
A. Because most people just use their hand signal with a
finger out and a thumb up for a pistol.
Q. So the defendant said that he had to go get a gun. Did
he say anything else?
A. He also said that Nate knew about it, which would have
been the guy inside the apartment complex, and he said there
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1041
was another guy that was there named BJ.
Q. Did he say whether BJ knew about it?
A. He just told me BJ was there.
Q. And did you know who he meant when he said BJ?
A. I know that his girlfriend's brother, I believe that was
his name.
Q. And you said you got the impression that this was a drug
deal?
A. Yeah.
Q. What gave you that impression?
A. That's the only thing I could really think that he would
probably be going over there for.
At the time I don't believe he was selling any
drugs, but I think Benny was.
Q. You weren't doing drugs at the time?
A. No.
Q. Did the defendant say anything about the race of the
individual?
A. He did say -- he said the white guy when he referred to
-- he did say he killed one of them. He didn't say the race
or anything about the other guy.
Q. After the defendant told you that he had whacked these
two people with a gun and that he had killed them, what did
you do with that information?
A. Toward the end when he told me another guy named BJ was
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1042
in on it, I just started shutting the conversation down.
Q. Why?
A. I had just got out of prison and you hear that kind of
stuff in there all time and I was interested in other things.
Q. Did you take him seriously?
A. At the time, no.
Q. Did that change at some point?
A. Yes.
Q. When did it change?
A. When I heard that law enforcement was looking to start
questioning people about it in regards to him.
Q. Who told you that?
A. My mother, who told me that some of the police wanted to
talk with one of my brothers and a few other people.
Q. Did you talk with your brother Steve McCaul about what
happened?
A. Not in any detail.
Q. Did Steve McCaul tell you that he had been talked to?
A. Yeah.
Q. Did he tell you the details of what he said?
A. No.
Q. How did you bring this story to light to law enforcement?
A. Law enforcement was talking with me about my gun case.
Q. Did you make a proffer statement?
A. Yes.
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1043
Q. And during that proffer statement were you to tell them
information you had about various things?
A. Yes.
Q. When was the first time you attempted to tell the law
enforcement officers about this episode with Mr. Hoover?
A. There was two groups of officers that I talked to. The
Lincoln Police Department and the federal marshals, or the
Omaha Police Department. It was --
Q. Which one did you talk to first?
A. The Omaha.
Q. Did they take information from you about this?
A. Very little, I believe. They were more interested in
letting me talk to Lincoln.
Q. And did the Lincoln police then talk to you?
A. Yeah, about three weeks, four weeks later.
THE COURT: Could we have the year, Ms. Lipovsky?
BY MS. LIPOVSKY:
Q. What was the year you talked to the police?
A. 2006.
Q. Before you were sentenced in your case?
A. Yes.
Q. Was it before you pled?
A. It might have been around September, I believe.
Q. And, I'm sorry, I wasn't very clear. When you talked to
the Lincoln Police Department, was that in September of 2006
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1044
or thereabouts?
A. Right about then.
MS. LIPOVSKY: May I have a moment?
THE COURT: Yes.
MS. LIPOVSKY: I don't have any other questions.
MR. CREAGER: Thank you, Your Honor.
THE COURT: If you would like to take a break, we
can take a break, if that's your preference.
MR. CREAGER: That may help get my notes in order.
THE COURT: Ladies and gentlemen, we'll take a
fifteen minute break at this time.
If you will follow the courtroom deputy, she will
help you now.
Mr. McCaul, you can step down and go with the
marshals. You'll come back in about fifteen minutes.
THE COURT: Now outside the presence of the jury, is
there anything we should take up?
MR. EVERETT: Just for everybody's information, we
do have one very quick witness after this one, who will be
our ninth witness today, and that's what we have.
THE COURT: Is that a new personal best?
MR. EVERETT: No. I'm just kind of proud of it.
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JOHN E. McCAUL - CROSS-EXAMINATION
1045
THE COURT: You're easily amused, Mr. Everett.
Anything, Mr. Creager?
MR. CREAGER: No, thank you, Your Honor.
THE COURT: Fifteen minutes.
(3:00 p.m. - Recess Taken)
(At 3:15 p.m. on May 29, 2007, with counsel for the
THE COURT: Please be seated. May I bring in the
jury?
THE COURT: Bring the jury in.
of the jury:)
THE COURT: Counsel, you may inquire.
MR. CREAGER: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. CREAGER
Q. Good afternoon, Mr. McCaul. You were released from your
state sentence on July 28, 1997; is that correct?
A. Yes.
Q. And do you remember when you commenced that sentence?
A. It was --
Q. When did you turn yourself in, or when you were asked to
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1046
start serving that sentence?
A. I believe in about June of 1990.
Q. So I take it you were in custody the entire time from
June of 1990 through July 28, 1997?
A. Yes.
Q. You weren't out for any other reason on furlough or --
A. A small time inside 1995 I was at the work detail center
for about eleven months and we had furloughs.
Q. During any of those furloughs did you have occasion to
come home or stay with your mom?
A. In Alvo, Nebraska.
Q. What was your relationship like with your brother Steve
during this period of time?
A. My incarceration?
Q. Yes, just take us from 1990 to the time you got out.
What was the nature of your relationship with your brother?
Were you close? Were you feuding some in between or
can you tell us?
A. We were close.
Q. Did he come visit while you were incarcerated?
A. A couple times.
Q. Prior to your release from incarceration in July of 1997,
had you ever heard anything about this incident, that is
about the double homicide?
A. No.
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1047
Q. No news accounts?
A. No.
Q. No talk in the institution?
A. No.
Q. And so as I understand it, you are released and you go
live with your brother and his wife; is that right?
A. I went to go live in Eagle, Nebraska, but I was staying
in Lincoln with my brother on occasion. I would spend the
night.
Q. That confused me a little bit. Where were you calling
home during this period of time?
A. Eagle, Nebraska.
Q. And did you spend equal amounts of time in Eagle and
Lincoln, or can you tell us how that normally worked out for
you?
A. More time in Eagle than in Lincoln.
Q. So you would come to Lincoln on special occasions?
A. No. I would just come there to kind of hang out with my
brother.
Q. And occasionally stay the night?
A. Yes.
Q. And it was during one of these times when you were over
there sort of hanging out that you met Jeff Hoover; is that
right?
A. Yes.
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1048
Q. Did your brother Steven introduce you to Mr. Hoover?
A. Yes.
Q. And there came a time apparently where during one of
these meetings he drives up in a car, you meet him out in the
parking lot, and you have this conversation about these
homicides; is that right?
A. Yes.
Q. And how many days was it then after you first met
Mr. Hoover that you had this conversation with Mr. Hoover?
A. A couple weeks.
Q. So in this two week period, was it towards the end of the
two week period, or the middle, or do you remember?
A. I would say closer to the end, about two weeks.
Q. If I recall your testimony, you said you were there for
like every day, and not there for a while. Do you remember
that testimony?
A. No. That would have been -- I said Jeff would be there
for like a week or so and then he would be gone for like a
week or so, not every day.
Q. Out of this two week period, how many days were you there
at the same time that Jeff was there?
A. Three times.
Q. Three times in that two week period and somewhere towards
the end of this two week period --
A. Uh-huh.
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1049
Q. -- about the second or third time you talked to him you
had this conversation in the parking lot; is that right?
A. Yes.
Q. And no one else is around?
A. No.
Q. Except the two of you, right?
A. Yes.
Q. Now, Ms. Lipovsky asked you sort of pieces of the
conversation.
What I want you to do is to just start at the
beginning, right now today, tell me what was said by you, and
what was said by Mr. Hoover in this conversation.
Just take it from there and give us the
conversation, not what you suppose or that you assume, but
what you remember, the words that you used, and what you
remember about the words that Mr. Hoover used in this
conversation.
A. Okay. I'll tell you what exactly I remember.
Q. Please.
A. When he came up we kind of did our greetings, how are you
doing? What's up?
Mr. Hoover -- we just kind of kicked it around a
little bit.
He asked me about doing time. I can remember that.
How you handle yourself, what's it like in there.
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1050
I just kind of told him you have to hold your own,
stand your ground.
If somebody messes with you, you have to deal with
it.
I believe the one part he kind of talked about, he
can handle himself quite well fighting-wise.
I told him I also could, too, and then he kind of
went into the part about how he could handle himself when he
said he whacked a couple of people.
Let's see. He said he whacked them.
I kind of gave him a weird look, because I thought
he was talking about fighting.
But then he said no, he killed them. He kind of
told me -- this is exactly what he said.
He said he went to, or he went to go handle some
business with some people, didn't feel right about it.
So he had to get a gun to go do it. Something went
wrong. He had to take care of a couple people.
When he said he killed a couple people, he referred
to one of them being white.
At the end of the conversation he had said that Nate
knew, which was the other guy that was inside the apartment.
And he also had said that another guy named BJ was
there.
He didn't go into details about him, but just said
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1051
he was there.
And that was pretty much the end of the conversation
when I ended it with him.
Q. How long did this conversation take place between you and
Mr. Hoover outside by his car?
A. Maybe a little bit longer than what it just took me to
say, except I probably didn't exactly remember every little
word in there.
Q. Do you remember being interviewed by Detective Breen of
the Lincoln Police Department?
A. I remember being talked with about -- two officers from
the Lincoln Police Department.
Q. Was one of them Detective Koziol?
A. It could have been.
Q. Do you know how long you were interviewed by those
officers?
A. I would be guessing. About forty-five minutes. Maybe,
an hour. I'm not sure.
Q. At the time that you had this conversation out in the
parking lot with Mr. Hoover, were you under any charges at
that particular point in time?
A. I was on parole.
Q. You were on parole. When was it that you got in trouble,
that is somebody accused you of a crime or you were indicted
or charges were filed against you?
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1052
A. On this charge?
Q. Let me ask you this. The federal charge, the firearm
charge, is that the only charge that was filed against you
since your release from prison?
MR. EVERETT: Objection, relevance. Improper --
THE COURT: Overruled.
THE WITNESS: That's the only felony.
BY MR. CREAGER:
Q. Were there other charges, though, not felony charges that
were filed against you after you got out of prison?
A. I have had misdemeanor assault, or consensual assault, I
believe it was.
Q. The details aren't particularly relevant, but you had an
assault charge pending. That's what you've said, right?
A. I went to trial on it.
Q. Now, tell us exactly the point in time in which it
occurred to you that the information that you had in your
head about this conversation with Mr. Hoover might be helpful
to somebody?
A. Before he got indicted.
Q. Before who got indicted?
A. On this charge.
Q. Before Mr. Hoover got indicted?
A. Yes.
Q. All right. You had this conversation in the two week
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1053
period after you are released sometime in late July of 1997.
Do you remember of your own knowledge when
Mr. Hoover was indicted on this charge?
A. It's the middle of 2006, if I remember correctly.
Q. So was it the information about the indictment then that
caused you to think that this information you had might be
helpful to someone?
A. I talked with my attorney about it before the indictment.
Q. So I take it then before Mr. Hoover had been indicted you
were indicted on these federal gun charges; is that right?
A. Yes.
Q. So is it fair for me to say that in connection with your
own charges, while they were pending, you got information
that Mr. Hoover was indicted; is that right?
A. After I was indicted, I understood that he was.
Q. You were indicted first and he was indicted later, right?
A. Yes.
Q. Now let's talk about these federal gun charges. Now, was
this the first time you had ever been involved in the federal
system with criminal charges?
A. Yes.
Q. Did you learn fairly quickly that federal penalties can
be severe in cases where felons possess firearms?
A. Yes.
Q. And did you learn about the federal sentencing
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1054
guidelines?
A. Yes.
Q. Tell the ladies and gentlemen of the jury what you
remember about federal sentencing guidelines that are
applicable to cases involving federal offenses.
A. Like what are the laws?
Q. Just your understanding of what the federal sentencing
guidelines had to say about your offense and how much time
you would do.
A. My offense was for fifteen years.
Q. That was the statutory maximum term?
A. I believe it's the minimum, fifteen.
Q. So your understanding was that you were looking at a
fifteen year sentence based upon the information you had
about this offense?
A. I don't know if it was fifteen years at the time. It
might have been like three or four years.
Q. Let's get that straight, because I don't want you to be
confused by my questions.
I asked you -- I thought I asked you at the time
that you were indicted, did you have some understanding about
what the potential sentence would be in your case if you were
convicted?
A. I was looking at thirty months in the beginning.
Q. And did that change?
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1055
A. Yes.
Q. Why did it change?
A. An enhancement.
Q. And after you learned about this potential enhancement,
what was your understanding about the sentence you would be
facing?
A. That it gets enhanced from two and a half years to
fifteen.
Q. I take it somewhere in your learning experience on these
matters you learned that if you provide substantial
assistance to federal prosecutors in the prosecution of other
individuals that you may avoid that minimum term; is that
right?
A. It could be possible.
Q. Let's face facts, that if you don't do something dramatic
you're going to do the minimum term, right?
A. Yeah.
Q. And there is no parole, right?
A. No.
Q. And you knew that if you could provide substantial
assistance, that's the word that is used, if that doesn't
sound familiar to you let me know, against somebody, in the
prosecution of another person, that you might avoid that
sentence, right?
A. Yeah.
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1056
Q. And that's what motivated you to sign that proffer
agreement, right?
A. Yeah.
Q. And you understood that proffer letter, or that proffer
agreement, gave you the opportunity to sit down and tell law
enforcement everything you knew about this case, or that
case, or any other case, in hopes that you might be able to
help yourself out at sentencing, right?
A. Yeah.
Q. And how many other kinds of criminal activity were you
involved in during that time period for which you might have
been prosecuted but for your cooperation?
MS. LIPOVSKY: Objection, foundation, relevance.
THE COURT: Overruled. You may answer.
THE WITNESS: The only thing I was charged for was
gun crimes.
BY MR. CREAGER:
Q. Well, were you concerned that the government had
information involving -- is it true that the government had
information involving your participation in narcotics
trafficking?
A. I don't know if they did or not.
Q. Did you have some concern that they did?
A. I wasn't charged with it.
Q. I know you weren't charged with it. Did you have some
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1057
concern if they looked carefully at what you were involved
in, that one of the things that you might face is potential
drug trafficking charges, right?
A. There is a possibility, right.
Q. And there was some information about weapon caches and
other things involving the Hell's Angels, right?
A. Yes.
Q. So you had a whole bunch of information and you were
willing to sit down with law enforcement and tell them what
you had, right?
A. Yes.
Q. Now, as I understand the sequence of events, Mr. McCaul,
this moment in time in which you felt this information may be
relevant to this case, it had nothing to do with any
communication you had with family members?
A. No.
Q. Am I right? That was a bad question. Did your decision
to bring this information forward have anything to do with
conversations you would have had with Steven McCaul or your
mother?
A. No.
Q. This was just all based upon your proffer?
A. Yeah.
Q. And are you telling us that from the time you got out of
prison until the time you signed that proffer agreement you
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1058
never had any conversations with your brother Steve, that the
authorities had been out to interview him about supplying the
weapon that was used in these double homicides?
A. I never knew that happened.
Q. He never told you about it?
A. No.
Q. He never talked to you about it?
A. No.
Q. That was news to you?
A. I just learned it now.
Q. And there was never a time then when your brother, or
anybody else for that matter, had a conversation about the
double homicide, this BJ Kempton, Mr. Hoover, or any of these
people? Is that what you're telling us?
A. Yeah, I never had any conversations with them about it.
Q. But you knew somehow that law enforcement was questioning
people about it; is that right?
A. Yeah.
Q. And how did you learn then that law enforcement was
questioning people about this double homicide?
A. My mother told me that.
Q. And your mother didn't tell you why she knew that?
A. No, she didn't go into detail.
Q. She didn't tell you that they talked to your brother
about it?
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1059
A. She didn't tell me whether they did or not, but they
wanted to talk to him about it.
Q. I'm confused about the time line then. Was this
conversation with your mother about the fact that law
enforcement wanted to talk to your brother about the
homicides before or after you made your proffer agreement
with the government?
A. I think that was before, and I did have one conversation
with Steven after they had talked with him about it briefly,
and that was it.
Q. Okay. Well, now, let's back up then, because I'm sorry
if I've confused you or if I've gotten this sequence wrong.
A. Okay.
Q. There was a time then that you talked to your brother
Steven about this investigation before you told any
authorities about what you knew; is that right?
A. No, I talked -- it might have been before the
authorities. I talked with my attorney before then.
Q. Did I hear you wrong, Mr. McCaul? Didn't you say you
would have maybe had one conversation with your brother
before you talked to the authorities?
A. Yeah, I believe that's it.
Q. You had a conversation or you didn't have a conversation
with your brother before you talked to the authorities?
A. I would say I had one with him before I talked with the
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1060
authorities.
Q. Did that have anything to do with your motivation then to
go forward and talk to the authorities about this matter?
A. No. I was already going in that direction.
Q. Is it fair for me to state that the conversation you had
with your brother in this conversation before you went to
talk to the authorities didn't discuss any of the details?
A. No. He just told me they showed him some pictures.
Q. Did you tell your brother at that time that you had a
conversation with Mr. Hoover in which Mr. Hoover said
something to the effect that he killed or whacked these two
people?
A. No.
Q. And your brother, I take it, didn't say anything to you
at that time, that Mr. Hoover said to him out by the mail box
that he had killed these two people?
A. No.
Q. So that subject just never came up?
A. No. It was like a five minute phone call.
Q. I take it then that that one conversation you had out in
the parking lot was the only conversation you had with
Mr. Hoover about this double homicide; is that right?
A. Yeah.
Q. Did you know that your brother had a .22 Ruger rifle?
A. No.
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1061
Q. This individual that you identified as BJ, sometimes you
referred to him as Nate. In your mind is Nate and BJ the
same person?
A. No, they are not.
Q. And the BJ that you are referring to in your statement
and in your testimony is which individual?
A. From my understanding who BJ is, and I don't believe I've
ever gone up and shaked his hand or met him, but it was his
girlfriend's brother, from my understanding.
Q. That means somebody probably told you something?
A. Yeah.
Q. Do you know who this BJ, that that name has been used, do
you know who that person is in fact?
A. I have been told that that was --
Q. Do you know it from your own knowledge, not from what
you've been told?
A. No, I don't know it from my knowledge.
Q. Mr. McCaul, do you know what the penalties are for
perjury?
A. I know it's a crime.
Q. Do you know what the penalties are?
A. No.
MR. CREAGER: May I have a second, Your Honor?
THE COURT: Yes, you may.
MR. CREAGER: I don't have any further questions of
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1062
the witness. Thank you, Your Honor.
THE COURT: Ms. Lipovsky?
REDIRECT EXAMINATION
BY MS. LIPOVSKY:
Q. Mr. McCaul, where did you serve your sentence for the
burglaries?
A. Robberies?
Q. Robberies.
A. The first three years was in Lincoln Correctional Center
and the last five was in the Omaha Correctional Center.
Q. So you were in the Omaha Correctional Center prior to
being released on parole?
A. Yes.
Q. And while you were in the Omaha Correctional Center, were
you paying attention to what was going on in Lincoln,
Nebraska?
A. No.
Q. You were asked by Mr. Creager about if you had any other
run-ins with the law between the robberies and your federal
charges, and you said that you had a misdemeanor consensual
assault?
A. Yes.
Q. What did you get for a penalty for that?
A. A one hundred dollar fine.
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JOHN E. McCAUL - REDIRECT EXAMINATION
1063
Q. What was that?
A. It was a mixed martial arts tournament that was being
sanctioned.
Q. Where was it performed at?
A. I can't remember the name of the building, but it was
right on O Street.
Q. Was that in Lincoln, Nebraska?
A. Yes.
Q. Had you been before to similar exhibitions in Omaha?
A. Yes.
Q. Was it okay to do that in Omaha?
A. Yes.
Q. Did you find out it wasn't okay to do that in Lincoln?
A. Yes.
Q. As a result you had the consensual assault?
A. Yes.
Q. It was a fighting promotion that you had?
A. Yeah, we had ring doctors, referees.
Q. You said that you thought, you believed you had a
conversation with your brother Steve before you actually got
to talk to the authorities about the defendant telling you
that he had whacked some people. Did I understand that
correctly?
A. Yes.
Q. Did Steve tell you the details of what he knew?
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1064
A. No.
Q. What was involved in that conversation?
A. He just told me that the law enforcement talked with him
about it and he met at a jail and showed him some pictures
and that was the end of it.
Q. Did your mother tell you any details about what was going
on?
A. No, just that they were looking for Steven to talk with
him about Jeffrey.
Q. And there was a question you were asked toward the end
about BJ and I want to clarify. You said BJ was his
girlfriend's brother. Who is his?
A. Hoover's.
Q. You were asked by Mr. Creager if you knew before that
Steve had supplied the weapon, and I believe your answer was
I just learned it now.
A. Yes. Just as he told me.
Q. You had never heard that before?
A. No.
Q. Steve didn't tell --
A. No.
Q. -- it to you?
A. No.
Q. No one else told it to you?
A. No.
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1065
Q. When Hoover told you this, why didn't you tell somebody
else?
A. I didn't take it really seriously to heart when he told
me that.
Q. Why didn't you talk to Steve about it?
A. I just didn't take it that serious.
Q. You didn't talk to anybody about it?
A. No.
Q. Was it similar to other stories you had heard --
A. Yes.
Q. -- when you were in prison?
A. Yes.
Q. At some point did your opinion of whether or not it was
true change?
A. Yes.
Q. When did it change?
A. When I learned that they were looking for Mr. Hoover to
question him in regards to a couple of homicides.
MS. LIPOVSKY: I don't have any other questions.
THE COURT: Thank you, sir. You may step down. May
I excuse this witness?
MR. CREAGER: May we approach?
THE COURT: Yes.
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JAMES F. KRUEGER - DIRECT EXAMINATION
1066
hearing of the jury:)
MR. CREAGER: I guess I'm trying to figure out, I
may need him --
THE COURT: Marshal, do you want to come to the
bench, please?
Marshal, are you keeping Mr. McCaul at Saline
County?
U.S. Marshal: Yes.
THE COURT: Would you keep him there until I release
him?
U.S. Marshal: Yes.
THE COURT: Because Mr. Creager may want him back.
(The following proceedings were had in the hearing
of the jury:)
THE COURT: Mr. Everett?
MR. EVERETT: Your Honor, we have one more witness
today. Call James Krueger.
THE COURT: All right.
THE COURT: Sir, if you will take a seat in the
witness box right there, this lady will swear you in.
COURTROOM DEPUTY: Please state your name for the
record and spell your last name.
THE WITNESS: James F. Krueger. K-R-U-E-G-E-R.
JAMES F. KRUEGER, PLAINTIFF'S WITNESS, SWORN
DIRECT EXAMINATION
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1067
BY MR. EVERETT:
Q. Mr. Krueger, how are you employed?
A. I'm a special agent with the FBI.
Q. How long have you been doing that?
A. About five years.
Q. And where are you stationed?
A. Lincoln, Nebraska.
Q. How long have you been in Lincoln?
A. About four years.
Q. What did you do before you were with the FBI?
A. I was with a private corporation.
Q. Since you've been stationed in Lincoln, Nebraska, have
you had occasion to assist the Lincoln Police Department in
their investigation of the homicides of Harold Fowler and
Duane Johnson?
A. Yes, I have.
Q. And in connection with your assistance, did you request a
firearms trace summary from the Bureau of Alcohol, Tobacco &
Firearms pertaining to a particular gun?
A. Yes, I did.
Q. And did you get a reply back from the ATF responding to
your request?
A. Yes, there was a reply, yes.
MR. EVERETT: May I approach the courtroom deputy,
Your Honor?
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1068
THE COURT: You may.
BY MR. EVERETT:
Q. I've handed what has been received into evidence in this
case as Exhibit 82.
Does that contain a copy of a firearms trace summary
which you received from the ATF pursuant to your request?
A. Yes, it is.
Q. Now, when you submitted your request to the ATF, was
there a section of that request form that asked for possessor
information?
A. Yes.
Q. And did you complete that section of the request form?
A. Yes, I did.
Q. And did you indicate that there was an individual who you
identified in your request form as the possessor of the
firearm?
A. Yes. I listed an individual, yes.
Q. Who did you list?
A. Steve McCaul.
Q. And why did you identify him in your request as the
possessor of the firearm?
A. Basically the last information we had, or the latest
information in our possession, was the owner of that firearm
was Steve McCaul.
Q. Did you at the time you made your request have
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1069
information that Steve McCaul, or anyone else for that
matter, had actually been found to be in possession of that
gun subsequent to June 9th of 1997?
A. No, there is no information that anyone has been in
possession of that gun since that date.
THE COURT: Mr. Creager.
MR. CREAGER: I have no questions, Judge.
THE COURT: Agent, you may step down, sir. You may
leave that there. We'll pick it up. Thank you. Mr. Everett
that runs the government out of nine witnesses today?
MR. EVERETT: It does, Your Honor.
THE COURT: You say that with a certain degree of
pride, and I compliment you on doing nine witnesses in a day,
but with a dollar you can get a cup of coffee.
In any event, that's all we have for today and so
we'll take our break now, ladies and gentlemen.
We'll start again at 9:00 in the morning. If you
will follow the courtroom, she will help you now.
hearing of the jury:)
THE COURT: Now outside the presence of the jury,
what do you have tomorrow, Mr. Everett?
MR. EVERETT: Your Honor, we have a total of four
witnesses tomorrow.
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1070
One of them is the videotaped deposition of Brett
Ratcliffe and there are some pending objections to that.
THE COURT: I have read that transcript. I'm likely
to overrule all of the objections and just have you play
through it and tell the jury beforehand they are overruled.
But, Mr. Creager, if there is any objection in there
that you really want to argue tomorrow --
MR. CREAGER: I will let you know. I think that my
objection was perhaps overly technical about the scope of his
-- and in this case I'm not sure that it matters all that
much anyway.
THE COURT: That was my sense. The time of death to
a bug guy is probably different than a time of death to a
pathologist, and that is the sense of your objection, as I
understood it.
I think you were suggesting that a bug guy is not a
pathologist.
I think that's clear and I don't think the jury will
be --
MR. CREAGER: As I recall, I was the one that made
the objection at the time thinking that the science would
have permitted an entomologist to state, using the gestation
period known of the insects and calculating back from the
birth or the age of these larvae what time the larvae would
have been deposited on the body, and would further state that
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1071
since these particular blow flies aren't active at night it
would had to have been deposited sometime in the early
morning of the day following the death.
But when the actual fly deposited the first larvae
is not something that is knowable or known.
THE COURT: And I don't think his testimony is that
refined.
MR. CREAGER: That's what I thought he tried to do.
I thought he tried to take it further than simply saying in
my opinion these larvae would have been deposited in the
morning hours --
THE COURT: You re-read the transcript, and I
re-read it, and frankly I thought it was close enough for
government work and the jury wasn't going to be confused by
the points you make, and if you want to argue it --
MR. CREAGER: I guess the only question I have for
the record is do I make a record of those having been the
objections and they were overruled? Do I have to object
during the deposition?
THE COURT: I would think not. If it's okay with
you folks, we will just play the deposition. I'll tell the
jury I've denied the objections.
We'll mark the deposition video as an exhibit, which
will not go to the jury.
I'll tell the jury that they have to remember the
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1072
video just like everything else, but we'll keep the video as
the record.
If you want, we can add the transcript as well so
it's easier for a judge someplace else to look at a
transcript and we'll keep those from the jury.
MS. LIPOVSKY: There were several exhibits that we
did offer during the course of the deposition, some of which
I would ask to offer again and allow them to go back to the
jury, such as his CV and the time line and the chart that he
made.
There are a series of slides of bodies at the scene
that are very graphic, which although he used those, and they
were marked as an exhibit, it was never my intention to have
those go back to the jury.
Those are contained in Exhibit 100. So what I would
be offering is 99, 101, 102, and 103, which includes his
final report.
THE COURT: There may be grounds for objection to
those that are different than -- I can't recall.
Did you reserve all the objections as to exhibits or
not? Did you make any objections?
MR. CREAGER: I thought it was foundational, but I
didn't have a real problem with the exhibits --
MR. EVERETT: I thought they were offered.
MR. CREAGER: I will look at that, too, Your Honor.
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1073
THE COURT: In any event, clearly we don't need to
have the slides of bodies and so you don't have to offer
those.
MS. LIPOVSKY: In Exhibit 100. There are other
things duplicated in other exhibits we have, and I don't
intend to offer Exhibit 100 to go back to the jury, but for
the record I should offer them as part --
THE COURT: I'll leave that to your good judgment.
If you want it in the record for some other purpose, I
suppose we can do that. If the man testified, why would he
put his report in?
MS. LIPOVSKY: I guess it's similar to the
pathologist --
THE COURT: There wasn't any objection. The typical
pathologist's report, if Mr. Creager doesn't care, and if
it's clear, I think everybody benefits by clarity, as opposed
to the lack of it generally, I don't care, but if there is an
objection to the report I'll probably keep the report out.
I've not read the report.
MS. LIPOVSKY: I think that it's a very succinct
synopsis of his opinion.
It has been several days, actually weeks since I've
looked at it, so I'll look at it again.
THE COURT: In another life I used to spend time
helping experts write reports and offer them after the expert
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1074
testimony with the hope that some idiot judge would let them
in so the jury could read the report, rather than my
inarticulate witness, but I suspect that didn't happen here.
In any event, I'm not a big fan of having reports,
but we'll see.
MR. EVERETT: It seems like some of the questioning
from both sides was sort of premised on the idea that the
report was going to be --
THE COURT: That may be, and if there is no harm,
that's fine. I don't care one way or the other particularly.
Ms. Lipovsky was telling me what she was going to
offer, and she should independently offer them, and I think
you should do that at the conclusion of the reading of the
deposition and then we'll take them up one at a time, and if
you identify them by number and a short description so the
jury hears that, that will be helpful.
MS. LIPOVSKY: I will do that.
MR. CREAGER: I have one other issue for the legal
question for the day.
In reviewing the evidence of Waldbaum's cross, and
what he admitted or didn't admit about his prior statements
that I crossed him on, I always try to make a list, having
asked the question and then produced the extrinsic evidence
of the statement, in this particular case, in both to some
degree Mr. Kempton and some degree Mr. Waldbaum, the
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1075
statements that I was referring to were actual recorded
statements by witnesses in front of the law enforcement.
They were not under oath.
THE COURT: Right.
MR. CREAGER: The question is, for impeachment
purposes, does the witness have to be present and under oath
to testify to the inconsistent statement, or is the statement
itself admissible, because it's not admitted for the truth of
the matter asserted, and the rules of evidence don't apply,
foundation doesn't apply to impeachment the same way that
other evidence may be required --
THE COURT: Your question is how to get the
inconsistent statement in?
MR. CREAGER: If I have to go find Jeff Wright, for
example --
THE COURT: Who is Jeff Wright?
MR. CREAGER: Jeff Wright is one of the individuals,
just one, we have Mr. Jeff Hauser coming, but these people
have given the statements that I'm referring to.
And Mr. Everett and I have discussed the need to
actually produce them.
If we can produce their words, that is what they
actually said outside --
THE COURT: Give me the -- you have a witness who
says somebody else gave an inconsistent statement.
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1076
MR. CREAGER: The witness says this guy told me the
light was red. Do I have to bring the guy to testify to the
consistent statement?
Does he have to be present under oath to be
cross-examined --
THE COURT: If he's not present, how do you know he
will say -- how do you know what his statement is?
MR. CREAGER: He gave a recorded statement.
THE COURT: To law enforcement, okay, and you are
the proponent of the statement?
MR. CREAGER: Yes, and the question is, can we use
the statement itself, rather than call the witness and say is
this the statement you made.
That's the question. Whether it's a requirement for
foundation.
THE COURT: You are the proponent of the statement?
MR. CREAGER: I am a proponent of the impeachment
statement. It's his recorded statement.
THE COURT: What would you prefer to do?
MR. CREAGER: It's just going to take longer to make
sure we rustle up all these people and get them here.
If their statements are available, just use the
statement that we have, but Mr. Everett and I had a
discussion about whether, if he objected to that procedure,
whether it would still be admissible for limited purposes of
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1077
impeachment, or whether it's not even admissible for
impeachment purposes unless the proponent of the inconsistent
statement offers up the ears, if you will, of that statement
to be cross-examined about whether the statement was made.
THE COURT: Well, let's cut to the chase. If they
are police officers who took the statement, some police
officer interviews Jeff Hauser and he says Kempton made this
statement to me, my guess is, by hook or crook, you could get
it in through the cop.
If he objects, I doubt that you can get it in just
with the paper. I mean, I think he's entitled --
MR. CREAGER: Somebody would have to come and
testify that he gave the statement.
It's a hybrid, because if he objected on hearsay
grounds, declarant present under oath --
THE COURT: The cops -- yeah. I think you could
probably get it in through the cop.
MR. CREAGER: That was my thought, but we'll see if
we can kind of cut down some of the time.
THE COURT: Do you care?
MR. EVERETT: Greatly.
THE COURT: Then find some authority to tell me that
it's --
MR. EVERETT: He's talking about something like
Mr. Waldbaum making a statement allegedly to Jeff Wright
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1078
that's inconsistent.
He doesn't want to bring in Jeff Wright so that we
can cross-examine Jeff Wright.
THE COURT: I understand.
MR. EVERETT: Jeff Wright is available. These
people are available.
THE COURT: Is Jeff Wright interviewed by the
police?
MR. EVERETT: Yes.
THE COURT: Jeff Wright has made this statement?
MR. EVERETT: Jeff Wright has made a statement.
THE COURT: To the police that Waldbaum told me --
MR. EVERETT: But it's not a statement that he's
ever adopted.
He gave a statement to the police, and the police
have their version of what he said, but we can't
cross-examine those statements.
THE COURT: That's true. You can't.
MR. EVERETT: There are no circumstantial guarantees
of trustworthiness of what Jeff Wright is going to say, or
Jeff Hauser is going to say, or what any of these other
people are going to say.
These statements these people gave to the police are
highly suspect and we think that under the rules we're
entitled --
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1079
THE COURT: Find --
MR. EVERETT: Especially when they are available.
These witnesses are available.
MR. CREAGER: It's an impeachment question, because
it clearly wouldn't be admissible against a hearsay objection
if it were being offered for other than impeachment purposes,
but we'll work through it.
It's just one of the next issues, and it's not an
officer saying he said it, it's his own words, it's the
declarant's recorded statement.
MR. EVERETT: And we have a problem with the
accuracy of all these transcripts.
You read through these transcripts, there are
obvious mistakes throughout them.
THE COURT: Sure. I would have to look at the books
to know if you could get it in through the cop. My sense is
you could.
If the cop's recollection is this is what he told
me, and it's not offered to prove the truth of the matter
asserted --
MR. EVERETT: It is offered to prove the truth.
THE COURT: The statement was made --
MR. EVERETT: Jeff Wright really did say those
things to the police.
THE COURT: To the police, yes.
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1080
MR. EVERETT: So in that sense I think it is offered
for the truth of the matter asserted.
THE COURT: Might be. Look it up and let me know.
If they are available, Mr. Creager, I think that you would be
well advised to issue subpoenas for them.
MR. CREAGER: They're out, and I think we have
Mr. Hauser, but we're keeping track of them daily, and as our
time line shifts I get nervous about whether they will
actually be reachable, but we've got an investigator --
MR. EVERETT: Just so you know, we have made the
services of the FBI and the Lincoln Police Department
available to find these people and we think we have found
them all for Mr. Creager.
THE COURT: Well, let me say this. In my opinion it
would be far preferable to have the witness who heard the
inconsistent statement who is the direct -- the percipient
witness here, as opposed to having the cop here, even if you
could get it in.
And if the government shows that they are available,
and you don't call them, then the government may be able to
call them in rebuttal.
MR. CREAGER: That would be our intent, and there's
one other issue.
There is a report that was provided us by the
government on an interview with a James Davis.
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1081
THE COURT: That's not the James Martin Davis?
MR. CREAGER: This James Davis is dead, as far as
our information is concerned.
THE COURT: I can assure you that Mr. James Martin
is not.
MR. CREAGER: I spoke to him last week, actually.
What we are struggling with is that Mr. Davis' account of
this time line has, as I understand it, has him placing a
telephone call to Mr. Fowler's residence on Tuesday and gave
a statement that the telephone was answered by a young black
male, who was obviously anxious to get him off the phone.
Our investigator indicates that public records show
that he has been deceased for some time, since like 2004,
even before the second phase of this investigation.
And we're wrestling with the concept of trying to
admit that statement under the residual exception to the
hearsay rule with notice to the government that we can't
produce any similar evidence or any other evidence that would
be --
THE COURT: So the government has the statement.
Some police officer interviews a guy by the name of Davis,
who is now dead?
MR. CREAGER: Yes.
THE COURT: Mr. Davis says I called the residence of
Fowler on Tuesday, and a young black male answered, and we
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had a previous conversation, he didn't want to talk to me,
and that was the end of it?
MR. CREAGER: Right. He's pretty sure it was a
Tuesday, for reasons that are in the statement.
And obviously it would be relevant to the time line
that the government has suggested, and relevant to people in
the house, and all the other things that flow from that.
There is no other evidence in the records given to
us of any other similar statement from somebody else about
something happening on Tuesday, or that there was any contact
with the house, so there is no other way to get that evidence
in.
The individual doesn't seem to have any interest in
the case, and we can consider this at least verbal notice of
perhaps our intent to try to rely on the residual exception
to the hearsay rule.
THE COURT: I think rather than verbal notice --
MR. CREAGER: I will file something. I don't know
if I need to file it with the court.
I probably should make a pleading out of it, and
file it or serve it on the government.
We ordered up a death certificate to make that
showing, but apparently our investigator says they won't give
it to an investigator.
THE COURT: Do you agree this guy is dead?
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1083
MR. EVERETT: I am not certain. Do we know? We
don't know.
THE COURT: You could find that out pretty quick.
MR. EVERETT: Probably.
THE COURT: They don't have to run to get a death
certificate, do they? Can't you just punch it up and find
out?
MR. EVERETT: Assuming we can do that, right.
THE COURT: Mr. Creager, they aren't going to --
could you let him know by tomorrow maybe sometime?
MR. EVERETT: Sure.
THE COURT: You give them notice if you are trying
to get it in under the residual exception to the hearsay
rule.
MR. CREAGER: I will, Your Honor.
THE COURT: Do you know the name of the police
officer who interviewed him.
MR. EVERETT: Officer Koziol interviewed him.
MR. CREAGER: Actually nothing further, Judge.
Thank you.
THE COURT: But do get the written notice to them.
MR. CREAGER: I will do it tonight before I go home.
THE COURT: As soon as you can.
MR. CREAGER: Otherwise I may forget.
THE COURT: Make the guy getting all the big money
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1084
who is sitting next to you do that. There being nothing
further, we stand in recess.
(4:12 p.m. - End of Proceedings)
C-E-R-T-I-F-I-C-A-T-E
I, Allan G. Kuhlman, do hereby certify that the
foregoing transcript is a true and accurate transcription to
the best of my ability from the digital recording of the
proceedings held in this matter.
In witness whereof I hereunto affix my signature on
October 28, 2007.
/s/Allan G. Kuhlman
Allan G. Kuhlman
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1085
I-N-D-E-X
Direct Cross Redirect
WITNESSES:
FOR THE PLAINTIFF:
Mary Jane Dunn................ 931
Steven C. Harry............... 938 942
Jay Doug Oates................ 944
Jeffrey Howard................ 950 978
Heather Christensen........... 984
Christopher Zangari........... 997
Kenneth F. Koziol............. 1002
John E. McCaul................ 1022 1045 1062
James F. Krueger.............. 1067
Exhibits: OFFERED RULED ON
80 Gun Registration.......... 994 994
91 McCaul Plea Agreement..... 1024 1024

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