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Case 2:04-cv-08425 Trial Day 4 Vol 1

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UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISION-RIVERSIDE HONORABLE VIRGINIA A. PHILLIPS, JUDGE PRESIDING

4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 PHYLLIS A. PRESTON, CSR License No. 8701 Federal Official Court Reporter United States District Court 3470 Twelfth Street Riverside, California 92501 stenojag@aol.com REPORTER'S TRANSCRIPT OF COURT TRIAL PROCEEDINGS Riverside, California Friday, July 16, 2010 8:30 a.m. - 12:05 p.m. LOG CABIN REPUBLICANS, a nonprofit corporation, ) ) ) Plaintiff, ) ) V. ) ) UNITED STATES OF AMERICA, and ) ROBERT M. GATES, SECRETARY OF ) DEFENSE, in his official ) capacity, ) Defendants. ) ________________________________)

DOCKET NO. CV 04-8425 VAP Court Trial Day 4 A.M. Session Pages 697 - 802

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

APPEARANCES WHITE & CASE LLP BY: DAN WOODS EARLE MILLER AARON KAHN DEVON MYERS RACHEL FELDMAN 633 W. Fifth Street, Suite 1900 Los Angeles, California 90071-2007

UNITED STATES DEPARTMENT OF JUSTICE Civil Division, Federal Programs Branch BY: PAUL FREEBORNE JOSHUA GARDNER RYAN PARKER SCOTT SIMPSON United States Attorneys 20 Massachusetts Avenue, NW Washington, DC 20001 and UNITED STATES ARMY Litigation Division MAJOR PATRICK GRANT MAJOR JENNIFER BOTTOMS Litigation Attorneys 901 N Stuart, Suite 400 Arlington, Virginia 22203

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JOINT EXHIBITS 113 114 115 116 117 118 119 121 120 112 WITNESS FOR PLAINTIFF:

I N D E X

PAGE

CHRISTOPHER MEEKINS DIRECT EXAMINATION BY MR. KAHN . . . . . . . . . . . 701 CROSS-EXAMINATION BY MR. FREEBORNE . . . . . . . . . 713

MICHAEL ALMY DIRECT EXAMINATION BY BR. KAHN . . . . . . . . . . . 726

ADMITTED 784 784 784 784 784 784 784 784 792 800

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FRIDAY, JULY 16, 2010, RIVERSIDE, CALIFORNIA ---o0o--THE CLERK: CV 04-8425 VAP, Log Cabin Republicans

versus United States of America. Counsel, please state your appearance. MR. WOODS: Good morning, Your Honor. Dan Woods With

with White & Case for plaintiffs Log Cabin Republicans. me at counsel table this morning are Aaron Kahn and Earle Miller. THE COURT: Thank you. Good morning. Paul

MR. FREEBORNE:

Good morning, Your Honor.

Freeborne on behalf of the United States and Secretary Gates. With me at counsel table are Josh Gardner, Brian Parker, Scott Simpson, and Major Grant and Bottoms. THE COURT: Thank you. Good morning.

You may call your next witness. MR. WOODS: Thank you, Your Honor. The plaintiff

would next call Mr. Martin Meekins, and Mr. Kahn will conduct that examination. THE COURT: Thank you.

Please come forward. PLAINTIFF'S WITNESS, CHRISTOPHER MEEKINS, WAS SWORN THE CLERK: Please be seated.

Please state your full name and spell it for the

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THE WITNESS:

It's Christopher Martin Meekins,

C-H-R-I-S-T-O-P-H-E-R, M-A-R-T-I-N, M-E-E-K-I-N-S. THE COURT: Thank you.

You may inquire. MR. KAHN: Thank you, Your Honor. DIRECT EXAMINATION BY MR. KAHN: Q. A. Q. A. Good morning, Mr. Meekins. Good morning. Mr. Meekins, how are you currently employed? I am employed as an Assistant General Counsel for

Perella Weinberg Partners in New York. Q. A. What is Perella Weinberg Partners? It's a financial services company. We provide corporate

advisory services globally for M & A and restructuring and bankruptcy. We also do asset management which is hedge funds

and private equity funds. Q. A. Q. A. So are you a licensed attorney? I am. And in what states are you licensed to practice law? I am currently in good standing in the states of Texas,

California, the District of Colombia, and I'm a member of the U.S. Supreme Court and in the process of being waived into the state of New York. Q. Are you admitted to the Bar of the Central District of

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California? A. Q. A. Q. A. Q. I am. And where did you receive your law degree? I received my law degree from the University of Texas. When was that? This was in 1997. How long have you been employed by Perella Weinberg

Partners? A. Q. Over three years. And prior to being employed by Perella Weinberg Partners

where were you employed? A. I was employed by ACE Ventures and before that White &

Case here in Los Angeles. Q. When and you're referring to White & Case, is that the

same law firm representing Log Cabin Republicans in this case? A. Q. It is. When you worked for White & Case were you also

affiliated with the Log Cabin Republicans? A. I was. When I joined White & Case I was already serving

on the board of directors for Log Cabin Republicans. Q. When did you first become a member of Log Cabin

Republicans? A. I think I became a member sometime in the second half of

2001 and then stepped on the national board of directors in

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the spring of 2002. Q. A. Are you still a member of Log Cabin Republicans today? I'm not. Shortly before the filing of this case I

resigned from the board of directors, and I believe I sort of ceased my membership in the spring of 2007 when I began working in New York. Q. So approximately what date did you resign from the board

of Log Cabin Republicans, the national board? A. It was shortly before the filing of this immediate

action. Q. A. And do you recall approximately the time period of that? It was either the very end of September or the very

beginning of October 2004. Q. Mr. Meekins, were you ever involved with this case

either as an attorney at White & Case or as a member of the national board of Log Cabin Republicans? A. I was. Obviously, as an attorney at White & Case I was In particular, I was involved

very involved with this case.

with analyzing the associational standing issues. Q. A. And do you recall when this case was filed? It was filed sometime in October 2004. I don't recall

the exact date. Q. And at that time did you serve on the national board of

Log Cabin Republicans when this case was filed? A. I was not. I resigned immediately before we filed this

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case. Q. A. And why is it that you resigned? Well, we were worried about any perceived conflicts of

interest given the media scrutiny the case might receive, and sort of our desire for my to be seen as counsel for Log Cabin Republicans instead of a member of the national board of Log Cabin Republicans. Q. And you mentioned that in regard -- in connection with

the filing of this case you performed some tasks related to associational standing. A. Sure. Can you explain those for us?

Obviously, in the spring of 2004 we were in touch And some of

with various people of Log Cabin Republicans.

the feedback we were getting from members of Log Cabin Republicans who were also members of the Armed Forces were that people were scared to come forward individually to challenge "Don't Ask, Don't Tell" because to do so would subject them to discharge under "Don't Ask, Don't Tell," and so we were doing research about how Log Cabin Republicans could bring a lawsuit on their behalf. MR. GARDNER: THE COURT: MR. KAHN: Objection, move to strike, hearsay.

Do you wish to respond? I do, Your Honor. This goes to the

state of mind of the association which Mr. Meekins represented at the time, of course. In addition, it goes to

the First Amendment issue similarly to Mr. Bradley's

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testimony. THE COURT: In other words, to the chilling effect,

the First Amendment issue? MR. KAHN: THE COURT: Indeed, Your Honor. The objection is overruled.

Had you finished your answer? THE WITNESS: Just repeat the question, maybe the

end of my response if that's possible. THE COURT: BY MR. KAHN: Q. The question was, what tasks did you undertake in All right. Go ahead.

connection with the associational standing work. A. To finish my answer -THE COURT: And could you slow down, please? Sure. After the feedback we were

THE WITNESS:

receiving from some of the members about their great concern coming forward individually, we were trying to determine whether or not Log Cabin Republicans had associational standing to bring the lawsuit on their behalf so as to preserve their anonymity. BY MR. KAHN: Q. A. And what did you conclude in that regard? Well, we concluded, based on the law that we reviewed,

that so long as there were members -- people were members of Log Cabin Republicans who were gay, lesbian, or bisexual who

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were members of the Armed Forces, that Log Cabin Republicans had associational standing to bring the lawsuit. Q. And did you take any action to ensure that Log Cabin

Republicans had members who were in the military and were gay and lesbian? A. Q. A. I did. Can you explain those actions for the Court, please? Yes. Some months before the action was commenced, we

conducted through our contacts and people who had contacted us who were gay, lesbian, or bisexual who were members of the Armed Forces and members of Log Cabin through telephone interviews to talk about with them the possibility of bringing a claim and their willingness to come forward. And

we narrowed down that sort of large group over a dozen folks. And I individually met with over four of them and talked with them to confirm that they were who they said they were, that they were members of the Armed Forces, including which branch they were in, talked with them about coming forward, the reasons why they didn't want to, talked with them about preserving their anonymity through the associational standing, confirmed that they were members of Log Cabin Republicans. THE COURT: four of them? I'm sorry, did you say you met with

The four persons you met with individually,

that wasn't over the phone, that was face to face?

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THE WITNESS: THE COURT:

Yes, Your Honor.

Thank you. I was going to say it required flying

THE WITNESS:

to other states and back, because it was very important for us to do that face to face. THE COURT: BY MR. KAHN: Q. Do you recall which branch of the military each of those Thank you.

four individuals served in? A. Q. A. Q. Yes. What were they? They represented the branches of the Navy and the Army. Are you familiar with the individual whom we have

referred to in this case as John Doe? A. Q. A. I am. And how did you become familiar with John Doe? He was an acquaintance through Log Cabin Republican

activities of Phillip Bradley, who also served on the national board of directors at the same time I did in 2004. Q. A. Did Mr. Bradley introduce John Doe to you? He did. I think his initial introduction was by e-mail,

and I believe that we conversed telephonically several times before meeting in person. Q. And was John Doe one of the individuals with whom you

met personally?

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A. Q.

Yes. What branch of the military did John Doe serve when you

met with him? A. Q. A. Q. He served in the Army. And where did you meet with John Doe? Here. I say "here," generally Los Angeles.

And did John Doe -- was John Doe a member of the Log

Cabin Republicans when you met with him? A. Q. He was. And how do you know that John Doe was a member of Log

Cabin Republicans? A. Two ways. One, he had participated in Log Cabin I also, to

meetings and that's how he knew Phillip Bradley.

confirm that he was a member of Log Cabin, saw him fill out his application to make sure that he had sort of complied with the practices of Log Cabin for membership. Q. Did he fill out that application at your meeting with

him in Los Angeles? A. He did. He also paid his dues to me to satisfy the

membership requirement. Q. A. And in what form did he pay his dues to you? He paid in cash. He, like many of the others that I had

met with, again, were very nervous about any sort of trail that could be used as evidence or indicia that would subject him to discharge under the policy while he served actively.

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And so he sort of refused to give a check because he didn't want there to be any trace of funds leading to his bank account to an organization that would be identified with gay, lesbian, or bisexual individuals. Q. A. Q. you? A. The cash and the application I forwarded to the national How much did he pay you in cash? I think it was around $60. And what did you do with that cash once he gave it to

office of Log Cabin Republicans in Washington, DC. Q. Did he fill out the application under his real name or a

pseudonym? A. Under a pseudonym. As I mentioned before, one of the

things, after we had analyzed associational standing, we felt very confident that we could and should preserve the anonymity of the plaintiffs. Q. A. To whom did you send John Doe's cash and application? I would have directed it to Patrick Guerrero, the

national director of Log Cabin Republicans at that time. Q. A. Q. A. Where was he located? In Washington, DC. Do you recall when your meeting with John Doe occurred? Yes. It was either shortly before or shortly after He was one of the last ones that I met with

Labor Day 2004. face to face.

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Q.

How do you know that John Doe -- I'm sorry.

How do you

remember that date? A. Well, I remember that date, and I'm going to smile a

little bit because I'm not a litigator by training and worked very closely with the head of litigation of White & Case, Dan Woods, who is here today, and Dan was very meticulous about me crossing my T's and dotting my I's with respect to things that we needed to do to prepare this lawsuit for filing. And

one of those things was to confirm the associational standing requirements, which was meeting with people, making sure they were who they said they were, if they were members of the Armed Forces, that they were gay, lesbian, or bisexual, and that they were members of Log Cabin Republicans. And that

needed to be done weeks before we were prepared to file, and so sort of the filing was postponed, quite frankly, until I could have the meeting with who we now know as John Doe No. 1 in Los Angeles around that time. Q. As a member of the national board of Log Cabin

Republicans, did you consider John Doe to be a member of Log Cabin Republicans prior to the date of filing the original complaint in this case? A. Q. Yes. Mr. Meekins, when did you cease working for White &

Case? A. The end of 2005.

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Q.

And when is the last time you spoke or communicated with

John Doe? A. Probably that -- sometime in the second half of 2005 I

would give updates to folks, so somewhere around that time. Q. When you were a member of the Log Cabin Republicans

national board, did the national board recognize honorary memberships? MR. GARDNER: Objection, beyond the scope of If I may be heard on this, Your

Mr. Meekins' declaration. Honor? THE COURT:

Go ahead. You may recall, Mr. Meekins is an They

MR. GARDNER:

individual who was not disclosed during discovery. tendered a declaration from Mr. Meekins.

We had asked to We

depose Mr. Meekins and the Court did not rule on that.

would be highly prejudiced now to go into areas that were not covered in Mr. Meekins' declaration. THE COURT: MR. KAHN: Mr. Kahn. Your Honor, counsel is correct, it's not

in his declaration; however, his knowledge of the national board's practices and the honorary membership status of members of Log Cabin Republicans has been made an issue by counsel. And I only have two questions on this issue. THE COURT: I'm trying to recall what the status And as I

was of the request to take Mr. Meekins' deposition.

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recall, when this was discussed at -- I guess it was at the pretrial conference, I think my ruling was that it wasn't necessary to take his deposition, if I recall correctly. maybe that was at one of the hearings from the motion for summary judgment, because that's when Mr. Meekins' declaration was submitted. You may ask your questions and I'll consider whether after cross-examination the testimony should be stricken. MR. KAHN: BY MR. KAHN: Q. Mr. Meekins, when you were a member of the Log Cabin Thank you, Your Honor. And

Republicans national board, did the national board recognize honorary memberships in the organization? A. They did, although I have to say as a corporate lawyer,

how I viewed those things and the instances in which they were given is that people were really recognized for their in-kind contributions to the organization. So, for instance,

if someone came and gave a speech in which normally otherwise honorarians would be paid to them and those weren't paid, people would be giving memberships to Log Cabin Republicans instead. MR. KAHN: further questions. THE COURT: Cross-examination. Thank you, Your Honor. I have no

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

CROSS-EXAMINATION

Good morning, Mr. Meekins.

We haven't met before.

My

name is Josh Gardner.

I represent the United States.

Now, Mr. Meekins, you mentioned before on direct that John Doe had to fill out a membership application; is that correct? A. Q. I watched him fill out a membership application. It's your understanding as a member of the board that to

become a member of Log Cabin Republicans, one fills out a membership application, correct? A. That's one way. I think that the Website at the time

allowed people to become members in different ways, electronically filling out a different type of form. Q. When you fill it out electronically or in hard copy, you

fill out a membership, correct? A. Q. I think that was the general practice. Now, as I understand it, you were on the national board

of directors of Log Cabin Republicans prior to the filing of this lawsuit, correct? A. Q. That's correct. But you weren't on the board of directors at the time

the lawsuit was filed, correct? A. Q. That is also correct. Okay. Now, you mentioned on direct examination that you

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know John Doe and three other individuals who were service members because you met with them prior to the filing of the initial complaint in October of 2004, correct? A. I think to be absolutely correct, I met and talked with

more than four, but after culling down people I wanted to meet with further, I met with at least those four. Q. I wasn't quite clear from your testimony. The first

time -- let me back up. Did you meet with John Doe in person one time? A. Q. I did. As I understand your testimony, it was either before or

after Labor Day? A. Q. A. That's right, immediately before or after. You don't remember the exact date? No, but I can tell you the restaurant that we met at

that day and that it was fairly hot. Q. Now, it wasn't also clear to me, did the other three

individuals with whom you met also sign applications to become members of Log Cabin Republicans? A. Q. That's my understanding. Did they sign with their pseudonyms or their actual

names? A. Q. A. I believe all of them signed with their pseudonyms. I see. Did they all pay you money?

They did not pay me money, but it is my understanding,

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because I was directing others to collect these things personally so that we knew for sure that we had these things, that they were done. Q. A. So who did these other individuals pay money to? A couple of the others I know for sure delivered their

applications and their money to Phillip Bradley. Q. A. I see. Because, obviously, these people are disbursed

throughout the United States and there's not a board member in every state. Q. Now, you mentioned the fact, as I understand it, that

John Doe paid you the money and then you provided the money and the application to the Washington, DC headquarters; is that correct? A. Q. A. That's correct. And did John Doe only pay you one time? Well, as I mentioned, I resigned from the board just And so when I accepted the

before this lawsuit was filed.

money from John Doe, it was on behalf of the organization. So it would have been just that one time at which time I forwarded it to the national office of Log Cabin Republicans. Whether or not he paid subsequently, I don't have personal knowledge of that. Q. That was my question ultimately. You can't say whether

John Doe has continuously paid dues since the one time he

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paid you, correct? A. Q. That's correct. And you understand as a former member of the board of

directors that the requirement of membership is paying the annual dues, correct? A. It is, but as I mentioned earlier, it was a practice

that I observed that in-kind contributions were viewed as equal to actual money paid contributions. Q. Now, you are aware that Log Cabin Republicans has

articles of incorporation, correct? A. I assume they do. I have not served as their corporate

lawyer in that sense. Q. Sure. But you were on the national board of directors,

correct? A. Q. I was on the board of the national directors. Why don't we take a look at the articles of Just pull that up. I want to

incorporation which are JX10.

draw your attention, sir -- first of all, have you seen the articles of incorporation before as a member of the national board of directors? A. I cannot say today whether I have or not. It is not

something I've given thought to in a very, very long time. Q. I totally understand. It is not a memory test in any

way, shape or form. I want to draw your attention to article 4 of the

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articles of incorporation.

It's on page 2.

And if we could

just -- if we can blow up article 4, membership organization. Now, the second sentence here says, "The Do you see

corporation shall have one membership class." that? A. Q. A. Q. The second sentence? Correct. Do you see that, sir?

Yes, I -- it is the second sentence. Yes, that's right. You have no reason to quarrel that

that is, in fact, the way that Log Cabin Republicans membership is structured, correct, one membership class? A. Again, as I said, in terms of corporate form of their

membership, this has been a very long time ago and I have never been asked to give legal advice to their articles, to my knowledge. Q. I'm not asking for a legal opinion. I'm asking as one

of the members. A. As my personal knowledge, this is the first time I've

thought about this in a very long time. Q. I understand. As you said, because you were a member of

the national board of directors, I just want to make sure that we're on the same page here. You have no reason to

quarrel with the fact that one of the requirements of membership to be a member of Log Cabin Republicans, there is a single membership class, correct?

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A.

Yeah.

If this is the articles of incorporation and

assuming that they have been authenticated, I would have no reason to think that this is not true. Q. All right. And you'll see that the next sentence says

that in order to be a member, members of the corporation shall be individuals who support the purposes of the corporation and make a financial contribution to the corporation each calendar year. A. Q. Yes. Do you see that?

That would be the third sentence. And, again, you have no reason to quarrel that

Correct.

under the articles of incorporation for Log Cabin Republicans one has to make a financial contribution to the corporation each calendar year, correct? A. Yes. And I think as I mentioned, it was my practice and

observation when I was a board director for Log Cabin Republicans that that final contribution could be both in-kind and actual, just like you would any other political organization. Q. And whatever the practice of the organization may have

been, according to the articles of incorporation, there's a requirement to make annual payments, correct? A. Q. I don't read that sentence that way. So where it says make a financial contribution to the

corporation each calendar year, you don't take that to mean one must make annual payments?

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A.

No.

I mean, so, in addition to my law degree, I have my Accounting 101 would be that a company can make

MBA degree.

in-kind contributions for which value may be assessed or they may pay actual money. When you say make a financial

contribution, I could work at your house in your backyard all day and you not pay me a dime and in return I may get something for you for equal value. financial contributions. Q. Sure. In other words, you take the term "each calendar Those would be in-kind

year" to mean you can make a one lump sum payment at one time. A. That's how you interpret this? I'm actually -- I'm sorry. I'm making a You said

No.

distinction about what is a financial contribution. make a payment each calendar year. necessarily a payment. Q. A. I said it is not

I don't read that sentence that way.

So you interpret financial to mean not necessarily money? I mean, financial contribution, not to be

argumentative -Q. A. No. The words "financial contribution" can be money or can

be an in-kind contribution. Q. And that whatever that financial contribution comprises,

you understand it has to be annual, at least according to the articles of incorporation? A. Yes. It says each calendar year, so I think that would

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be a -Q. A. Annual, correct? Well, yes, but this is a different calendar, so it would

be January 1st to December 31st. Q. Fair enough. And sitting here, Mr. Meekins, you can't

say whether John Doe has made a financial contribution to the corporation Log Cabin Republicans each calendar year from 2004 to the present day? A. No. I personally do not know that. I personally

accepted from John Doe a payment and application for Log Cabin Republicans prior to the filing of this lawsuit. Q. A. Q. And that one-time payment, right? Correct. Okay. By the way, since you were an attorney at White &

Case before the filing of the lawsuit, I take it you were involved in the drafting of the complaint, correct? A. Q. Yes. And you're aware that in the complaint Log Cabin

Republicans asserts that it has other service members who are homosexuals and still serving in the Armed Forces? A. I haven't looked at the complaint in years, so I'm happy

to take a look at it. Q. Yeah, sure, let's do that. Now, if you look at paragraph 10, this is the original complaint, it says, "The membership of the Log Cabin

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Republicans includes gay and lesbian members of the United States Armed Forces who currently serve in the United States Armed Forces and thus are subject to the Policy and the DOD Regulations." Do you see that? A. Q. I do. I take it that is an accurate statement, at least as you

understand it, right? A. Q. That's absolutely correct. Did all of those service members who are members of Log

Cabin Republicans pay you personally to retain their anonymity? A. Q. I'm sorry, repeat the question again. Sure. All of these service members who are members of

Log Cabin Republicans, did they all pay you personally to retain their anonymity? A. Q. So, did they pay me money to retain their anonymity? In other words, as I understood your testimony, there

was some concerns with some of the individuals you spoke with that to pay money and give their names directly to Log Cabin Republicans, they would be subject to "Don't Ask, Don't Tell," as I understand your testimony, correct? A. Just to correct that, I spoke with many people who

identified themselves to me or through others as members of Log Cabin Republicans who were gay or lesbian and were

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members of the Armed Forces.

Every one of these people that

I talked to -- and, again, remember, this is less than three years after 9/11 -- were people who wanted to serve their country in their continued capacity of the Armed Forces. This issue had not come up constitutionally in The people with whom I spoke felt so

almost a decade.

adamant that service to their country was more important than anything else, they had no interest in being named and subject to discharge under "Don't Ask, Don't Tell," and that the people that I met with both telephonically and in person would only undertake sort of stepping forward on the request of anonymity. Q. Now, since you have left White & Case and since you are

no longer affiliated, as I understand it, with the Log Cabin Republicans, have you been following "Don't Ask, Don't Tell" at all? A. I read probably like everybody else, but I have to admit

that my job is a fairly high hour job, so it's not something I follow closely. Q. Understood. Are you aware that the Department of

Defense recently promulgated new regulations with respect to "Don't Ask, Don't Tell"? A. I am aware that "Don't Ask, Don't Tell" has not been

repealed, but that's -- again, I haven't delved into the details. I know that it still exists and people are still

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subject to "Don't Ask, Don't Tell." Q. And to just sort of close the loop here, I take it you

have no knowledge one way or the other as to whether those new regulations -- you have no, I take it, understanding one way or the other whether the regulations, either new or old, actually state that membership in associations like Log Cabin Republicans is not credible evidence of homosexual conduct? A. Q. You know, state the last part of that question again. Sure. I take it you have no understanding one way or

the other whether DOD regulations state that membership in associations, such as Log Cabin Republicans, is not credible evidence of homosexual conduct? A. That's not my understanding. And I will tell you in

conducting interviews with people both who are Log Cabin Republicans and members of the Armed Forces and those who are not, that membership and association with gay or lesbian or bisexual organizations certainly gives rise, you know, rebuttable presumption that they themselves may be gay, lesbian, or bisexual, whether it's an official policy of the Armed Forces or whether it's an unofficial policy. Q. So your understanding is, in fact, if one were to become

a member of an organization like Log Cabin Republicans, that would create a presumption? A. Q. That's your understanding?

Yes, in the same way that, you know -- yes. Okay. By the way, is John Doe a Republican?

724

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A.

He's a member. MR. KAHN: Objection, Your Honor, for the sake of

anonymity -MR. GARDNER: I don't think that outs John Doe,

Your Honor, if he's a Republican. THE COURT: Objection is overruled. The question is, is he a Republican? Correct. Being a member, a gay or lesbian

THE WITNESS: MR. GARDNER: THE WITNESS:

member of Log Cabin Republicans is not the most popular thing in the world, either in the Republican party or in the gay and lesbian community. The fact that he is a Log Cabin

Republican is a high level -- gives me a high level of confidence to say that he is a Republican. BY MR. GARDNER: Q. A. But you don't personally know one way or the other? Well, different states have different requirements, as

you may well know, with respect to being a registered Republican voter on a state, local or federal level, so I don't know whether he is a, quote/unquote, registered Republican in his state of locale that he votes. Q. And it's a requirement to be a member of Log Cabin

Republicans that one be a Republican, correct? A. You mean a registered Republican? A self-identified

Republican?

725

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Q. A.

Take it any way you want it.

Self-identified?

I don't know of any Log Cabin Republicans who are not

Republicans. Q. And that's a requirement of being a Log Cabin

Republican, correct? A. Again, as I stated earlier, if there is an indication on

the application that such a person is a Republican, then, yes. As I stated earlier, when you put the articles of

incorporation in front of me, this is something I have not looked at in six years. you want me to. Q. A little bit beyond the scope of your understanding, I I'm happy to look at something if

understand that. MR. GARDNER: tender the witness. THE COURT: Thank you. No further questions, Your Honor. I

Redirect examination. MR. KAHN: THE COURT: We have no further questions, Your Honor. Thank you.

You may step down. THE WITNESS: THE COURT: witness. MR. WOODS: Yes, Your Honor. Our witness is Thank you.

Plaintiffs may call their next

Retired Major Michael Almy, A-L-M-Y.

And Mr. Kahn will do

726

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that examination. waiting.

And Mr. Almy is on his way.

He is outside

THE COURT:

Thank you.

PLAINTIFF'S WITNESS, MICHAEL ALMY, WAS SWORN THE CLERK: Please be seated.

Please state your full name and spell it for the record. THE WITNESS: THE COURT: Michael David Almy, A-L-M-Y.

Thank you.

You may inquire. MR. SIMPSON: Your Honor, I'm sorry, before we

start here, if we could just have a continuing objection on the grounds raised in docket No. 180, our motion in limine. THE COURT: Go ahead. MR. KAHN: Thank you, Your Honor. DIRECT EXAMINATION BY MR. KAHN: Q. A. Q. A. Q. Good morning, Mr. Almy. Good morning. Mr. Almy, did you serve in the U.S. military? Yes, I did. How long was your active duty career in the Certainly. Thank you.

U.S. military? A. Slightly over 13 years.

727

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Q. A. Q. A. Q. A. Q.

What years did that encompass? 1993 to 2006. And in what branch of the military did you serve? The U.S. Air Force. Were you enlisted or an officer? I was an officer. And how did you become an officer in the U.S. Air Force

in 1993? A. I earned my commission through Air Force Reserve Officer

Training Corps when I went through college at Wright State University. Q. And can you explain for the Court, please, what it is to

be a commissioned officer? A. A commissioned officer basically entitles a little more

respect, a little more trust, a little more responsibility than your average service member. A commission means that

someone has -- when someone receives a commission in the military, they have a formal document that is signed by the President as well as they go through a Senate confirmation. Their name goes on a list which the Senate must confirm before they can become a commissioned officer. Q. And is there a process in connection with being a

commissioned officer at stages in which you receive a promotion? A. Correct. Every time an officer is nominated for or

728

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selected for the next highest promotion, that in turn, must go back to the Senate for confirmation. So not only is there

a formal process of personnel process in the Air Force where someone is selected for promotion to the next highest grade based upon their recommendations from their superior officers, but they must also go to a Senate confirmation. Q. Mr. Almy, why did your active duty career in the Air

Force end in 2006? A. I was discharged from the Air Force because of the law

we call "Don't Ask, Don't Tell." Q. A. Q. A. And what was your rank when you were discharged? I was a major. Mr. Almy, why did you join the Air Force? I joined the Air Force primarily out of a sense of duty. He

My father was also a career officer in the Air Force. retired as a full colonel. retired from the military.

I had several uncles who had also One uncle had retired from the Another uncle of

Army and had service in the Korean War.

mine had retired from the Marine Corps and had service in World War II, Korea, as well as Vietnam. So growing up I

always had a rich history of military service in my family and just always knew that I would follow suit. Q. A. How long did you intend to serve in the Air Force? I had every intention of staying for 20 years where I

was eligible for retirement or perhaps longer than 20 years.

729

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Q.

And as a 13-year Air Force officer veteran, how would

you describe your knowledge of Air Force culture, tradition, history? A. I would say it's a very thorough, extensive knowledge.

You could probably even call me an expert on Air Force culture, history and tradition. I'm not just from my time in

the Air Force but as well as from my father's time, and I've basically been in the Air Force my entire life. Q. Mr. Almy, I'd like to have you walk the Court through

your career in the Air Force leading up to the events of 2005 and '06 when you were discharged under "Don't Ask, Don't Tell." Can you please tell us about your time at Wright

State University in the ROTC? A. Yes. I started Air Force ROTC in the summer of 1988 and Shortly thereafter I

got very active, very involved in ROTC.

earned a scholarship through Air Force ROTC which paid for the vast majority of my undergraduate education. And that

was in part not only because of my academic credentials but because of my leadership in ROTC as well and my involvement there. Q. And did you attend any specialized training while in

ROTC? A. My junior year I went through Army Airborne Training

which was a pretty selective course for Air Force ROTC cadets to go to. It was a little competitive to get a slot for

730

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that. Q. A. Q. And what was your major at Wright State University? I studied management information systems. And did you graduate from the Air Force ROTC at Wright

State? A. Yes, I did. I was a distinguished graduate from Air

Force ROTC which basically designated me in the top 10 percent of all ROTC graduates throughout the nation. Q. A. Q. And what year was that that you graduated? December of 1992. And following your graduation from ROTC, did you go on

active duty in the Air Force? A. A few months later, yes, I did. That was June of 1993

when I came on active duty in the Air Force. Q. And when you came on active duty in the Air Force, what

was your rank? A. At that time I was a second lieutenant, which is the

lowest officer rank. Q. Before we go on actually, Mr. Almy, can you please

describe for the Court the ranks used in the Air Force to designate commissioned officer? A. The ranks, yes. It starts out at second lieutenant,

which is the lowest rank, which is the rank that I received when I first came on active duty. lieutenant. Next there is first Those first

Following this there's captain.

731

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three grades are what we call company grade officers or the most junior officer category in the Air Force. Following this is the rank of major, then lieutenant colonel and then colonel. These are what we call They are basically

field grade officers in the Air Force. mid to senior level officers.

So this designates someone

who's been in at least 10 years or longer, someone who has every intention of making a career and the Air Force has basically designated these people as career officers who will stay for 20 years or longer. After this you get into the general officer categories. Q. How did the responsibilities differ between field grade

and company grade officers? MR. SIMPSON: foundation. THE COURT: Overruled. A field grade officer basically has Objection, Your Honor, lack of

THE WITNESS:

far greater responsibilities in their particular career field as well as the Air Force in general. leadership opportunities. They have much greater

At this point they are basically

considered an expert within their particular field of study or expertise in the Air Force, their career field, as well as just a leader in general throughout the Air Force. BY MR. KAHN:

732

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Q.

Mr. Almy, how would you describe your occupation

throughout your career in the Air Force? A. For the vast majority of my 13 years I served as a

communications officer, basically information technology. Q. Did you go into that career field for any particular

reason? A. That was, in part, because of my field of study in So I already had a

college, management information systems.

background in information technology and the Air Force selected me to go into the communications career field because of this. Q. do? A. Communications officer in the Air Force is responsible And what does a communications officer in the Air Force

for a variety of different IT or communications systems or projects. Typically, they will lead a team of other junior

officers or enlisted personnel responsible for various IT systems, such as local area networks, voice and data networks, or in my case I did a good chunk of my time in tactical or deployable communications. Q. And what do you mean by tactical or deployable

communications? A. Tactical or deployable communications basically means it

is not fixed, it doesn't stay in one location at a particular base. That tactical or deployable com is used to go to a

733

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combat zone, to go out in the field, to go to a remote location where no communication infrastructure previously existed and to establish that in order to meet the mission. Q. And in your career did you work in tactical deployable

units? A. Yes, I did. I had several different assignments in

tactical and deployable communications. Q. Can you please describe the training you received to

become a communications officer? A. My first assignment on active duty I went to Keesler Air

Force Base in Biloxi, Mississippi, for approximately six months. And that is where I learned how to become a That's where I learned the technical

communications officer.

skills of the trade, if you will. Q. A. Can you describe the course further for us? It's an academic course lasting approximately

six months, basically what we would call a technical school. So there I learned to become a communications officer. learned -- it was an academic setting, as I said, and I learned as much as I could about the com career field across the Air Force. It's the basic foundational knowledge that I

all com officers have. Q. And did you attend any other training during the

beginning of your career? A. Not initially for that first year. And then

734

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approximately two years later I was selected for navigator training, basically flight school, which I attended in San Antonio. Q. Can you please describe for the Court the navigator

training? A. Navigator training lasts approximately a year. I made

it about two-thirds of the way through, about seven months. I encountered a few problems with some of the check rides or final examinations, so I was eliminated from navigator training. field. And then I went back to the communications career

But navigator training is one of the foundational

schools that the Air Force uses for their flying community. Q. Would you say that -- strike that. Did your navigator training benefit the balance of your career in any way? A. Absolutely. Even though I didn't finish the training

there and go on to become a navigator, it gave me a far greater appreciation for the operational side of the Air Force, what I mean by that is the flying side of the Air Force, which is the heart of the mission of the Air Force. So it gave me a much greater perspective, a much broader perspective for the Air Force as a whole. Q. And through the balance of your career, did you support

that flying mission? A. Yes. Everything in the Air Force is geared towards

735

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supporting the flying mission in one way or another. Q. As a 13-year officer in the Air Force, do you know what

the Air Force invests in service members that go through navigator training? MR. SIMPSON: foundation. THE COURT: BY MR. KAHN: Q. Mr. Almy, when you were at navigator training, did you Sustained. Objection, Your Honor, lack of

have any other duties? A. My primary duty -- well, the short answer is no. My

primary duty there was to be a student, to become a navigator. Q. And during that period of time were you paid by the Air

Force? A. I was paid by the Air Force. I was on active duty

during that time frame, yes. Q. A. Q. And approximately what was your salary during that time? Probably around $45,000 a year, I would guess. Besides your training assignments, can you please

describe the first five years of your career in the Air Force from the time you went on active duty? A. Following my training at Keesler Air Force Base, which I

mentioned previously, I went to Kelly Air Force Base in San Antonio for a little under a year. I led a team of

736

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approximately six men and women who were in charge of installing first local area network for the headquarters I was working at. From the start of my career I was in a

leadership position. Following this I went to navigator training, we just spoke about, and following navigator training I went to Scott Air Force Base in Illinois. And there I was also in

another leadership position where I led a team of nearly 40 men and women who were in charge of a help desk supporting over 5,000 customers throughout the Air Force. Q. Was that assignment for any particular command in the

Air Force? A. That was for Air Mobility Command and also supporting

United States Transportation Command. Q. A. And what is the U.S. Transportation Command? U.S. Transportation Command is what we refer to as one The best or the most known example of

of combatant commands.

that would be Central Command, United States Central Command, which is in charge of the wars in Iraq and Afghanistan. So

United States Transportation Command is basically a corollary or a sister command, peer, if you will, of CENTCOM. Q. And was there a particular division within the

Transportation Command that you were responsible for? A. Correct. I worked within the J2 which is the So this particular directorate was

intelligence directorate.

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in charge of all the intelligent systems, all the intelligence communications gathering, intelligence analysis for the United States Transportation Command. And I worked

on -- I worked on some of the systems for the intelligence directorates. Q. And how long did you continue working at Scott Air Force

Base? A. Q. A. I was there for approximately three years. And how did you come to leave Scott Air Force Base? It was my time to rotate out of there just through the I expressed an interest in going

normal personnel rotations.

into deployable or tactical communications, so I met with the senior communications officer who was there at Scott Air Force Base. I requested a meeting with him and expressed an

interest to go into deployable or tactical communications. He looked over my resume'. He basically -- he called me into

his front office to work for a few weeks just to evaluate me, to evaluate my performance, to make sure that I had the caliber of leadership and quality to go into deployable or tactical communications. And then from that he recommended

that I -- he recommended me for my next assignment which was to Tinker Air Force Base. Q. When was that that he recommended you to Tinker Air

Force Base? A. This was the summer of 1998.

738

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Q.

And at Tinker Air Force Base did you work for a

particular group or division? A. There was in what's called the Third Combat

Communications Group, which is one of the premier mobile or tactical com units within the Air Force. Q. And how many service members serve in the Third Combat

Communications Group? MR. SIMPSON: THE COURT: Objection, lack of foundation.

Overruled.

You may answer. THE WITNESS: There were approximately -- when I

first got there there were approximately a thousand men and women serving in this unit. BY MR. KAHN: Q. What was your role with the Third Combat Communications

Group? A. I served as what we call a flight commander, which is

one of the foundational leadership positions in the Air Force. I led a team of approximately 30, 35 men and women And then I was also the most

within my particular flight.

senior captain within my squadron, so I also served as basically the deputy squadron commander serving in his leadership capacity when he was not there. Q. A. Who are you referring to? The squadron commander that I worked for.

739

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Q.

And when you served as deputy squadron commander, how

many service members did you command? A. Q. Approximately 125. Mr. Almy, you referred to a flight. Can you just

explain what a flight is for the Court? A. A flight is one of the basic organizational structures, It's the basic

personnel structures, within the Air Force.

unit of organization that we use to comprise a mission or to organize for a squadron. And it depends primarily on the

mission and how many men and women that are within a particular flight, but typically a flight commander is someone -- is an officer who has been designated for leadership position to be in charge of that flight. Q. And at Tinker Air Force Base how many service members

were in your flight? A. There were approximately, I believe it was around 35 men

and women within my flight. Q. From the time that you went on active duty to your time

with the Third Combat Communications Group, did you receive any promotions? A. Q. I'm sorry, can you restate the question? Sure. From the time you went on active duty to the

time -- through your time at the Third Combat Communications Group at Tinker Air Force Base, did you receive any promotions?

740

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

MR. SIMPSON: character evidence. THE COURT:

Objection, Your Honor, improper

Overruled.

You may answer. THE WITNESS: Yes, I did. Approximately two years

after I came on active duty I was promoted to first lieutenant. This was while I was at Randolph Air Force Base And then approximately two years

in navigator training.

after that I was promoted to captain while I was at Scott Air Force Base. BY MR. KAHN: Q. Can you speak generally as to what the requirements are

to make captain in the Air Force? A. The requirements to make captain are that you have

shown -- well, primarily you've been in for four years but also that you've shown leadership, you've shown demonstrative potential, you've shown that you can have a future in the Air Force, that they've chosen you for the next higher grade. Q. Now, Mr. Almy, during the same time period did you

receive any awards or commendations or medals or decorations? MR. SIMPSON: Objection, improper character

THE COURT:

Overruled. Your Honor, can we have a continuing

MR. SIMPSON: objection on this line?

741

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THE COURT:

Yes, you may. While I was at Tinker Air Force Base

THE WITNESS:

at the Third Combat Communications Group, I was selected as the officer of the year for my entire group. BY MR. KAHN: Q. And what does that mean to be selected as the officer of

the year? A. That means that I've shown exemplary leadership,

dedication to the mission, going above and beyond the call of duty. That means that I've been chosen among my peers as the

top performer. Q. Did the Third Combat Communications Group receive any

awards as a group during your tenure there? A. They did. Toward the end of my time there at the Third

Combat Communications Group they were selected as the best communications unit within the entire Air Force. Q. Starting in 1998 when you were at Tinker Air Force Base,

were you deployed overseas at all? A. Yes, I was. During that time in September of 1998, I I deployed -- I

deployed to Eskan Village in Saudi Arabia.

was the senior officer on that deployment comprised of men and women from my unit from Tinker Air Force Base. We had We

about 70 men and women that deployed to Saudi Arabia.

were in charge of maintaining the communications systems for that base. And also during that time frame the United States

742

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kicked off what we called Operation Desert Fox which was a bombing campaign over Iraq. And so my team of 70 men and

women was responsible for maintaining the communication systems on that base supporting that operation. Q. A. What was your specific role? There again, I was a flight commander similar to the

leadership position that I held back in Oklahoma, but this time it was deployed in Saudi Arabia leading a similar team of men and women. responsibility. This time it was an even larger

As I mentioned, I had about 70 men and women

and we were in charge of maintaining these IT systems, these command and control systems, for real world missions over Iraq. Q. A. Q. And when did you leave Eskan Village? It was January of 1999. And did you have another overseas deployment following

that? A. I did. Later that same year, a few months later, I

believe it was about September of 1999, I again deployed to Saudi Arabia, but this time to Prince Sultan Air Base about an hour away. On that deployment I served as the executive

officer for the operations group. Q. A. Q. And did that group have a particular name? This was the 363rd Expeditionary Operations Group. And what were the group's responsibilities in Saudi

743

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Arabia during that deployment? A. This was the 363rd Expeditionary Operations Group was

the heart of the operational or the flying mission in Saudi Arabia enforcing the southern no-fly zone over Iraq. So, in

other words, this was approximately two-thirds of the flying mission over Iraq at the time. We had approximately, I think

it was about eight squadrons within this operations group, so that the commander that I worked for, the full colonel, he was the operational group commander. In other words, he was

in charge of the vast majority of the flying mission over Iraq. Q. A. And approximately how many aircraft did that represent? I believe we had about 50 or 60 aircraft within the

operational group there. Q. How many service members did you command or oversee as

part of that group? A. Directly I had about six men and women that I led there In addition, I was in

in my duties as the executive officer.

charge of just the administrative or the office functions for the group commander there, the operational group commander, making sure that deadlines were met, making sure that he had all the administrative needs met for his group there. Q. A. Q. And when did that deployment end? That was approximately December of 1999. What happened after you returned from Saudi Arabia in

744

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December 1999? MR. SIMPSON: THE COURT: Objection, Your Honor, vague.

Overruled.

You may answer. THE WITNESS: I served for -- at that point I

served for about another year or so and then I was stationed to Quantico Marine Base where I was selected for training. BY MR. KAHN: Q. Can you explain for the Court, please, what Quantico

Marine Base is? A. That is a Marine base located right outside I was one of six officers for the entire Air

Washington, DC.

Force selected to attend professional military education with the Marine Corps. This particular school is the -- it's

considered the premier school for Marine Corps Captains. Approximately the top 20 percent of Marine Corps officers are selected to attend this training. Q. A. I take it other services can attend as well? They can as well, yes. There were -- as I mentioned,

there were six Air Force officers, there were approximately ten Army officers, a few Navy officers, as well as a few officers from foreign militaries. Q. A. Q. How long was that training course? Just under a year. Why did you apply to attend the Quantico Training Course?

745

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A.

I applied to attend that primarily because I wanted to

learn about another sister service, to expand my professional military education, to expand my knowledge as an officer. It's a very distinguished thing for an officer to attend professional military education in residence, which is what this was. Q. A. What do you mean by in residence? As opposed to correspondence. In other words,

correspondence means that an officer completes this education on their own time basically in the evenings or on the weekends, whereas in residence you're attending a school full time. Q. And can you describe briefly the training that you

received over those ten months? A. We studied leadership, command and control philosophy,

information and warfare, joint operations, just a broad variety of academic studies that would further an officer's career. Q. A. Q. A. Q. Did you complete the course successfully? Yes, I did. And when was that that you completed the course? That was approximately, let's see, about June of 2002. And where were you stationed following completion of the

Marine Corps school? A. Following this I was sent to Ramstein Air Base in

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Germany where I served in the information or the communications directorate within the headquarters of the United States Air Force in Europe. Q. A. And from Ramstein Air Base, were you deployed anywhere? I was. I was at Ramstein for a few months and then I

volunteered for deployment again to Saudi Arabia to Prince Sultan Air Base, and that was approximately November of 2002. Q. And did you work in any particular division or group at

Prince Sultan? A. I worked in -- again, I worked in the communications

directorate within what we call the Combined Air Operations Center. This was a joint command which was the command

structure for all of the flying activity, all the flying operations, for the Iraqi theater. Q. And what were your responsibilities in connection with

that command? A. I was in charge of maintaining or reporting the

communications status for the systems across the theater as far as up or down time of those systems. I reported that on

a daily basis and presented that information to the senior communications leadership so that they would be aware of the status of all the communication systems across the theater. In addition to this, I was also in charge of helping activate communication systems for new bases that were stood up throughout the theater. As we deployed more units into the

747

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theater and stood up new bases in Saudi Arabia, in Jordan, even into Iraq after the invasion, I was in charge of helping to facilitate the activation of those communication systems. Q. Mr. Almy, you referred to Iraq. Did you participate in

the invasion of Iraq in 2003? A. I did participate -- not the actual invasion itself,

but, yes, I did participate in the invasion from the standpoint that I was deployed in Saudi Arabia. I was

serving in the communications directorate that I just described supporting the invasion as we went into Iraq. Q. How did your duties change as the invasion of Iraq

progressed? A. After the initial invasion, after the first few weeks as

these new communications units were stood up, my role there started to taper off as far as the supporting the actual invasion. And at that point the headquarters, the CAOC, the

Combined Air Operation Center, which is where I was working, that was rotated or shifted from Saudi Arabia to a base up in Qatar. So I was in charge of helping to support that

transition from Saudi Arabia to Qatar. Q. And how long did you remain on deployment for that

deployment? A. It was approximately six months that I was on that

deployment. Q. And correct me if I'm wrong, that was your third

748

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deployment? A. Q. That was my third deployment to Saudi Arabia, yes. Over the course of your three deployments to Saudi

Arabia, can you please describe the living arrangements, your living arrangements while you were there? A. In my first deployment that I mentioned previously to

Eskan Village, I was living in a house or villa-type arrangement. I had a private room. There were approximately

three or four officers that were living in this house at the same time. As I mentioned, we all had private rooms. We all

had private baths.

There were maybe one or two people that

would share a bath but not at any one time. Q. A. That was at Eskan Village? That was at Eskan Village, my first deployment. My next

two deployments to Prince Sultan Air Base in Saudi Arabia was a dormitory-type facility. The first time I deployed to The

Prince Sultan I had a private room and a private bath. second time when I deployed to Prince Sultan, which was

during the invasion of Iraq, there again, it was the same dormitory-type facility. As the invasion progressed, the

build-up to the invasion, we plussed-up by a considerable number the forces that we had on that particular base. towards the end of that I believe we had about three or four people per room there. And, again, we had a shared So

shower facility, but at any one time there would have been

749

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one person in the shower, in the bathroom. Q. A. Q. Was there one shower stall? There was one shower stall, so, yes. Towards the end of your deployment -- well, what do you

mean by plussed-up? A. What I mean by plussed-up is we significantly expanded

the troop strength or the personnel numbers that we had on that particular base. I believe at one point we increased by

approximately 10,000 troops as we were building up towards the invasion of Iraq. Q. And you mentioned dormitory style. Can you explain what

that looks like? A. It was -- we typically had about two to four personnel Some of the more senior people would have their

per room.

own private room, the more junior people would have approximately three to four people per room. And there again

it was a private bathroom, so at any one time you would have one person in the bathroom. Q. A. Q. How did the sleeping areas connect to the bathroom? They were adjoined. During the time that you plussed-up during the invasion

of Iraq, how many service members were sharing the shower facility that you were using? A. I believe we had about six to eight people that were

sharing a particular shower, a particular bathroom facility.

750

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Q.

Mr. Almy, do you know what I mean if I refer to

something called an open bay shower? A. Q. Yes, I do. And during your deployments to Saudi Arabia did you ever

have to use open bay showers? A. I never had to use an open bay shower. To my knowledge, I

no one on my base ever had to use an open bay shower.

don't believe we even had open bay showers at any of the bases in Saudi Arabia. And I never saw any in Iraq either

towards the later part of my career. Q. A. Q. And we will talk about that -Sure. -- in a bit. Did that -- you just said you didn't see any on your bases in Saudi Arabia. enlisted personnel? A. Correct. The enlisted personnel typically had the same Did that include areas for

type of facilities as the officers did as far as the same living arrangements, the same shower arrangements, the same chow halls or dining facilities. The exception with the

enlisted personnel is they would typically have more people to a room. Some of the officers would have a private room, The enlisted personnel would

which was usually the case.

typically have a roommate, maybe one or two other roommates, but again, it was the same facilities.

751

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Q. A. Q. A.

When did your third deployment to Saudi Arabia end? That was approximately May of 2003. And then where did you go? I went back to Ramstein Air Base in Germany for about

another two or three months, and then I moved to another base in Germany, to Spangdahlem. Q. A. Why did you move to Spangdahlem? I was selected for promotion to Major at that point as

well as the senior communications leadership back at Ramstein Air Base had called me while I was down in Saudi Arabia and asked me if I wanted to move to this particular base at Spangdahlem. It was a deployable or tactical communications

unit, which was my background from my time at Tinker Air Force Base. And because of that and because of my

demonstrated leadership, the senior communications leaders asked me if I wanted to move to this base, and so I said yes. Q. And what position did they propose you assume at this

base? A. I served as the chief of maintenance for the 606 Air

Control Squadron. Q. A. Q. And did you accept the position? I accepted the position, yes. Can you please describe for the Court what the 606 Air

Control Squadron consists of? A. The best analogy I can draw is an air control squadron

752

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in the Air Force is similar to what the FAA does here in the States as far as controlling air traffic. So an air control

squadron in the Air Force is a deployable or a tactical version of that. So they take all the com or command control

facility systems that are used to control air traffic and they do that in a deployed environment. Q. And what is the organizational structure of the 606 Air

Control Squadron? A. My squadron fell under the operations group which was

the flying mission on that particular base that I was stationed at. So it was my squadron as well as we had And then that

three squadrons of fighter aircraft.

operations group fell under the entire wing, the 52nd Fighter Wing, which was the command structure for that entire base. Q. A. Q. So the 52nd Fighter Wing was based at Spangdahlem? Yes. And as an aside, can you spell that for the court

reporter? A. Q. Sure. It's S-P-A-N-G-D-A-H-L-E-M.

Mr. Almy, you said that the chief of maintenance

position -- well, strike that. Did the chief of maintenance position require you to be a major? A. Yes, that particular position was for a major. And I

had just been promoted to major about a month or two before

753

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that, so they needed a major that had a strong tactical deployable background for that position. Q. And as chief of maintenance, who did you report to in

the 606? A. I reported to a lieutenant colonel who was the squadron

commander for the 606. Q. Approximately how many service members did you command

as chief of maintenance? A. I had approximately 180 men and women that were working

in my directorate, the maintenance directorate, which consisted of three different flights. Q. A. Q. A. Q. A. Q. Did the 606 Air Control Squadron deploy to Iraq? Yes, it did. And when was that? That was approximately September of 2004. And how long was that deployment? That was about a five-month deployment. And did the entire 606 Air Control Squadron deploy to

Iraq? A. The vast majority of it. We left maybe 100 personnel

back in Germany and then we deployed about 100 to 120 people to three different locations in Iraq. Q. A. And what were those locations? They were Balad Air Base, which is where I was located,

which was where the majority of the personnel were; Kirkuk

754

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Air Base, which was in the northern part of Iraq; and then we had a small detachment in southern Iraq about an hour south of Baghdad. Q. And of the service members that deployed from your base

in Germany, approximately how many were officers and how many were enlisted? A. I think we had approximately 20 officers at that point,

and then I would say probably about 70 or 80 enlisted personnel, maybe a little more than that. Q. A. And in Iraq how many individuals were under your command? I had -- directly with me in Iraq, I believe I had about

50 personnel, but I was still in charge of the personnel that were back in Germany that reported to me. Q. A. And where were you personally based in Iraq? I was at Balad Air Base which is about an hour north of

Baghdad. Q. And did you also command the service members deployed to

the other two locations? A. Yes. The detachment that we had at Kirkuk Air Base,

which was another -- we had a radar facility that was set up there which consisted of approximately 20, 25 men and women, that reported directly to me, so I was in command of that as well, and also the small detachment of about six personnel in southern Iraq that I mentioned. Q. Did you travel to those other sites?

755

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A.

I traveled to Kirkuk once and then I also traveled to

Baghdad once during my deployment. Q. What were the 606 Air Control Squadron's

responsibilities in Iraq? A. My squadron was responsible for maintaining, controlling So we had a

the air space over the vast majority of Iraq.

24-hour-7-day-a-week mission to control the air space in all the missions that occurred over Iraq. This included the

Invasion of Fallujah when that occurred. Q. A. Q. Approximately when was that? That was November to December time frame of 2004. What were the maintenance directorate's specific

responsibilities? A. The maintenance directorate, which was what I led, that

team was responsible for maintaining all the communications, all the command and control systems that was necessary to operate and maintain, control the air space over Iraq. this included the radar. So

We had two radar established, Balad

at my location and also Kirkuk which I mentioned previously, our northern detachment, our satellite link, our satellite antennas, voice and data communications, radios, all the logistics behind that, the spare parts to operate and maintain that equipment, as well as the generators to power that equipment. Q. Did you experience any combat in Iraq?

756

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A.

Yes, we did.

On my base at Balad we had frequent mortar On one

attacks, usually several times a week, if not daily.

particular occasion we had a mortar attack that struck my location there and injured one of my troops as well as caused significant equipment damage. Q. What was it like to perform your mission during those

attacks? MR. SIMPSON: THE COURT: Objection, Your Honor, vague.

Overruled.

You may answer. THE WITNESS: It was pretty stressful from the We were daily under

standpoint that we were in harm's way. the threat of mortar attacks.

And that -- but on the other

hand, professionally, it was a little gratifying from the standpoint that this was why we were there, this was our mission and we were serving our country. had trained for. BY MR. KAHN: Q. Did you live on Balad Air Base throughout your time in This was what we

Iraq? A. Q. Yes, I did. Other than the two visits you mentioned before going to

Kirkuk and Baghdad, did you ever leave the base as part of your duties? A. No, I didn't. Aside from those two visits, I was on

757

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Balad for the duration of the deployment. Q. A. How did you get to Kirkuk? We took military -- I'm sorry, to Kirkuk. I flew in a

helicopter, a Blackhawk, down to Kirkuk, and also similarly down to Baghdad when I went on that trip, yes. Q. A. Can you describe Balad Air Base for the Court, please? Balad Air Base at the time was the largest military base And

in Iraq, the vast majority of which were Army personnel.

then we had a fairly significant number of Air Force people there as well. troops overall. Q. I believe we had about 4 or 5,000 Air Force It was the premier base in Iraq.

Can you describe some of the facilities, please, on the

base? MR. SIMPSON: THE COURT: MR. KAHN: Your Honor, objection, relevance.

What is the relevance? Your Honor, I'm going to ask Mr. Almy

about the facilities and socializing opportunities on the base. THE COURT: All right. The objection is overruled.

THE WITNESS:

The vast majority of our time was on The limited time that we had

duty performing the mission.

off duty we would get together to watch movies, play games, go to the gym or just sleep. BY MR. KAHN: Q. What were your living conditions like there?

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A.

For approximately the first six weeks when I was in

Balad I was living in a tent as was everyone else in my squadron. My particular tent we had about six to eight

people in that tent. Q. A. And what were the sleeping arrangements in the tent? We tried to partition off individual rooms as best we

could by just simply by hanging sheets up, making little partitions, if you would. Q. And in the tent did service members dress and undress in

their private partitioned areas? A. In their little partitioned areas, yes. So there was

some amount of privacy within the tent, yes. Q. Did you or your fellow service members put up the sheets

because of some concerns that there may be gay service members? A. Q. No, none whatsoever. After you lived in the tents, what were the living

arrangements like next? A. After that we -- my entire squadron moved to more We were staying in trailers.

permanent-type facilities.

Because of my rank and because of my seniority I had a private room there, as did most of the officers. And then

the enlisted personnel would typically have about -- would typically have one or two other roommates. Q. During your time on Balad Air Base, what were the shower

759

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and latrine arrangements? A. There was a separate shower or latrine trailer, if you There were approximately six to eight showers in this They

will.

shower trailer, but they were all individual stalls.

all had a little curtain so there was privacy when you were showering. Q. A. Q. So they were not open bay showers? They were not open bay showers, no. Were there any open bay showers on the base, to your

knowledge? A. Q. To my knowledge, no. In your experience, Mr. Almy, how common is it that

service members must use open bay showers in the Air Force? A. I would say it is the exception rather than the norm.

In my 13-year career I believe the only time that I actually used an open bay shower was when I went to Army Airborne Training in Fort Benning back in 1992. Other than that, I

would say every Air Force base I've been stationed at people do not have to use open bay showers. Q. At Balad, even though the showers were partitioned, in

some way was the shower facility otherwise communal? A. Yes, it was. It was -- aside from the private There was also

individual showers, there was a common area. a row of sinks that people used. Q.

Did some service members walk around in the shower

760

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facilities without clothes? A. On occasion. They would dress and undress as they were

going to and from the showers, so, yes. Q. A. Q. A. Q. Did others walk around with towels on or clothes on? Yes. It was their choice? It was their choice. Did you receive any awards as a result of your service

in Iraq? A. Towards the end of my deployment to Iraq I was selected

as the -- I received an award called the Lieutenant General Leo Marquez Award. What this signifies is it designates the

top communications officer throughout the Air Force serving in Europe. MR. SIMPSON: Your Honor, objection, move to

strike, improper character evidence. THE COURT: The objection is overruled. Do you

wish to have a standing objection on this subject? MR. SIMPSON: THE COURT: record. BY MR. KAHN: Q. A. I'm sorry, can you identify the award again? The proper name of the award is the Lieutenant General Yes, Your Honor. This should be noted for the

You may.

Leo Marquez Award, which is given to the top communications

761

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officer for the Air Force serving in Europe. Q. A. And what are the qualifications for that award? The qualifications for that are demonstrated leadership,

performance above that of my peers, going above and beyond the call of duty, just strong leadership, strong duty performance. Q. A. Q. A. yes. Q. While you were a member of the 606 Air Control Squadron, When did your squadron's tour in Iraq end? That was approximately the end of January 2005. And did you return to Spangdahlem at that point? My unit returned to Spangdahlem, Germany, at that point,

did you ever train with members of foreign militaries? A. Yes, I did. On one particular occasion my squadron And we

deployed to the Netherlands in a field condition.

were doing the similar mission as we had done in Iraq, as far as controlling air space, but this was a field exercise. we deployed to the Netherlands and we served alongside a Dutch military unit there. Q. To your knowledge, does the Dutch military allow service So

of persons who are openly gay or lesbian? A. Yes, they do. I believe that they were the first

country that allowed gays and lesbians to serve openly. Q. Did anyone in your unit express any concern about

participating in field condition training with members of the

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Dutch military? A. Not at all. I believe there might have been a little

curiosity since that country allows open service, but there was absolutely no detriment or no disruption to the mission. Q. Did you or anyone in your unit learn or discover that

any of the Dutch service members were openly gay? A. I learned towards the end of that field exercise that

there were about one or two of the Dutch soldiers that were serving alongside my unit that were gay. Q. Based on your observations, how did your squadron

operate? A. Again, I think they were a little curious about it just

because it's not allowed in the U.S. military, but once that initial curiosity wore off, there was absolutely no problem whatsoever. Q. Was there any effect on your mission as a result of

serving with openly gay service members from the Dutch military? A. Q. A. Not at all. And where did this training take place? This was in the Netherlands. It was in the northern

part of the country on a Dutch military base. Q. On the Dutch military base did the Dutch military base

include members of the Dutch military other than those training with you?

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A. Q.

Yes, it did. During your career in the Air Force did you serve

alongside members of any other foreign military? A. Quite a few other countries. Primarily Germans from my

time stationed in Germany, but I've also served with Canadians, Australians, soldiers from the United Kingdom, French, as well as various other members of NATO. Saudis and Iraqis. Q. A. Q. You mentioned Great Britain? Yes. Do you know whether Great Britain allows openly Also

homosexual service members to serve? A. now. Q. A. And same question for Australia? Yes, Australia does allow open service, as does Canada, Yes, they do, and they have for approximately 10 years

virtually all of our NATO allies across Europe. Q. And where was it that you served with the British,

Australian, and French militaries? A. Primarily throughout my deployment in Saudi Arabia, in

Iraq, and also in my time back in Germany. Q. And was there ever any effect on your unit's mission as

a result of serving with these foreign militaries that could include openly gay and lesbian service members? A. None whatsoever.

764

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 10:45.

THE COURT: examination? MR. KAHN: THE COURT:

Is now a good breaking point in your

Yes, Your Honor. We'll take a morning recess until about

Thank you.

You may step down. (Morning Recess) ---o0o---

THE COURT: MR. KAHN: BY MR. KAHN: Q.

You may continue. Thank you, Your Honor.

Mr. Almy, before we continue I wanted to ask you one You mentioned

question from the beginning of your testimony.

that your commission was signed by the President of the United States when you become a commissioned officer in the Air Force, correct? A. Q. A. Q. Yes, it is. Which President signed your commission? That would have been President George H.W. Bush. Thank you. You also mentioned that you were discharged

under "Don't Ask, Don't Tell" in 2006? A. Q. Correct. Can you please describe to the Court what led to your

discharge circumstances? A. Yes. As I mentioned previously, my unit left Iraq

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towards the end of January 2005. in Iraq was rotating in. time.

The unit that replaced mine

We had about a two-week transition

Several weeks after my unit left Iraq, someone who had

been sitting at my same desk, same computer, somehow private e-mails that I had written to family and friends during the stress of combat zone, these e-mails were searched for any type of content or any potential perceived violation of "Don't Ask, Don't Tell." This was a personal folder. It was

labeled "Friends," so in the sense that there was no business or professional reason for this particular individual to search this particular folder. There were approximately 500

e-mails, over 500 e-mails that I had put in this folder to designate my private, personal e-mail communications while I was in Iraq. Again, several weeks afterwards this folder was searched. Approximately 12 to 15 e-mails were pulled out

which were damaging to myself as far as perceived violations of "Don't Ask, Don't Tell." These e-mails that were searched

in Iraq were forwarded from the unit that replaced mine in Iraq. They forwarded these e-mails to my commander back in And then approximately six weeks after my unit had

Germany.

returned from Iraq, my commander called me into his office. The first thing he did was he read me the DOD policy on homosexuality. When he finished reading that he handed me a

stack of e-mails and asked how did I explain these e-mails.

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In other words, he demanded an explanation for these e-mails. I refused to do so. He pressured me to make a statement to

acknowledge the e-mails, basically to admit that I had violated "Don't Ask, Don't Tell," and again, I refused to do so. I told my commander at the time I would not make a

statement until I had first consulted with a lawyer. MR. SIMPSON: Your Honor, we object on grounds of

lack of foundation and move to strike Mr. Almy's testimony regarding the circumstances of the search. THE COURT: The search of his computer? Correct, Your Honor.

MR. SIMPSON: MR. KAHN:

Your Honor, I think as my questioning

goes on, I can establish that foundation. THE COURT: All right. Why don't you proceed --

well, I'm going to strike the testimony regarding how the e-mails were discovered and you may attempt to lay a foundation. MR. KAHN: BY MR. KAHN: Q. Mr. Almy, what generally were discussed in those Thank you, Your Honor.

e-mails? A. These were private communications between family and

friends, personal e-mails written for my own purposes to take my mind off the stressful combat zone, combat situation. They were written to approximately three or four people,

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friends that I had known, including one person that I had dated briefly. Q. And did you use a personal account or government e-mail

account to write these e-mails? A. For the vast majority of these I used a At the time the Air

government-furnished e-mail account.

Force restricted all access to personal e-mail accounts in Iraq, primarily for security purposes, to maintain the health of the network as well as to restrict bandwidth usage. When

an individual -- at the time when an individual deployed to Iraq, they were given a government-furnished e-mail account which was primarily for work purposes, but it was also for morale or personal use. In other words, they could use that

same Government e-mail to keep in touch with loved ones back home. And this was purely authorized. This was explained

clearly to each service member when they first deployed to Iraq, that their e-mail account was for work as well as personal use. Q. And could a service member in Iraq gain access to

private e-mail accounts? A. Only with limited exception. As a blanket rule personal One had

e-mail accounts were -- they were restricted access. to gain special access or special permission from

administrators in order to have access to their private e-mail accounts.

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Q.

Did you apply for such access at any time while you were

in Iraq? A. During my deployment I did. There was certain

information in my personal e-mail that I needed to obtain, such as bank account information, some contact information, so I requested special access from the system administrators. Q. To your knowledge, did other service members use

government computers and e-mail accounts to communicate with loved ones and friends back home? A. To my knowledge, everyone in my unit and probably I

would say every Air Force member who was deployed to my particular base in Iraq at the time was using their government e-mail account to keep in touch with loved ones back home for personal use, yes. Q. Besides using the government's e-mail account, was there

any way for a service member to communicate via e-mail other than to apply for and receive the permission to access their private e-mails as you testified to? A. Q. There was no -- no. When a unit leaves a deployment and is replaced by a

unit, such as what happened with your unit in Iraq, is it common for those units to conduct the search that you referred to earlier on e-mails? A. It's common for -- as I alluded to earlier, there was a We had a two-week overlap when the new unit

transition time.

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rotated in and my unit rotated out, so there was a formal transition time during that process where we would get the new unit up to speed, if you will. We brief them on the

mission, we brief them on the status of the equipment, we presented continuity or transitions materials to them. is commonplace. It is also commonplace for someone in the new unit to look for any type of information that might help them on their current rotation, something that happened on the previous rotation, any type of files, both printed out or electronic. In my particular unit we had a shared network That

drive, a public network drive where we kept some continuity materials, so it was not uncommon to look for materials that would help them in their current rotation. Q. Did your unit perform such a search when it arrived in

Iraq? A. We looked for any type of information that would have

helped us from the previous rotation as well as -- yes, we did. Q. And with regard to your personal e-mails, had you made

any efforts to segregate those from the official Air Force business e-mails that would be on that account or computer? A. I did. This was an e-mail account that was purely for There was no one else that was using this And I took great lengths, great

my use only.

particular e-mail account.

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efforts to separate my personal e-mail communications into a folder, the one that I had mentioned previously that was labeled "Friends." process. I did this process -- it was a manual

I would just go through my sent box as well as my

inbox and separate any personal communications and put them in this folder. Q. I did that several times a week.

And you said you moved them into an inbox labeled

"Friends"? A. Q. Correct, an electronic folder labeled "Friends," yes. Did you have any expectation that someone would read

e-mails in a folder labeled "Friends"? A. I did not. What is highly unusual -- it is very unusual

to search another person's private, in that case it was a government-furnished e-mail account, but a personal e-mail account. It is highly unusual that that occurs. THE COURT: Excuse me. I want to ask a question

because I'm confused about the witness's testimony. Mr. Almy, you testified that you asked -- you testified a few moments ago that you asked permission to have access to your personal e-mails? THE WITNESS: To my private e-mail account. This

was an Earthlink account, so that was my personal e-mail account that I owned as a private citizen and as well as my government-furnished e-mail account. THE COURT: If I understand it correctly, what you

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asked then for was permission to access your Earthlink account on the government computer? THE WITNESS: THE COURT: Yes. I was deployed to Iraq.

Did you receive that permission? I did, yes. And you said that that was

THE WITNESS: THE COURT:

All right.

so that you could obtain information about some bank account, financial information? THE WITNESS: Correct. There was some personal

information that I needed to obtain in that particular account. THE COURT: But the Earthlink account was not the,

or was it, the account through which you were receiving the personal e-mails that you put in the "Friends" folder? THE WITNESS: There were one or two from my

Earthlink account that I had forwarded to my government-provided account and then from there I put them in the labeled folder called "Friends," but the vast majority of my personal e-mail communication was done on my government-furnished e-mail account while I was in Iraq. THE COURT: Then you also testified that when you

were provided -- when you were deployed and you were provided the government account, if I understand your testimony correctly, you were told that that was for Government business, but while you were deployed in Iraq you were

772

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allowed to use that to maintain contact with your family and loved ones; is that correct? THE WITNESS: purposes, yes. THE COURT: Go ahead. MR. KAHN: BY MR. KAHN: Q. Mr. Almy, the permission that you were granted to access Thank you, Your Honor. Thank you. Right, for personal or morale

your Earthlink account, how long did that permission last? A. That was for the duration of my deployment, but I tried

to use that account very sparingly. Q. As a relative matter, approximately how much did you use

your Earthlink account relative to your government-issued account for personal purposes? A. I would say 5 percent or less of the time. As far as

the overall number of e-mails that I sent, I would say approximately 5 percent or less were from my Earthlink account. Q. Thank you. As a communications officer in the Air

Force, did you have any understanding that those e-mails might be searched? A. Correct. Personal e-mails, excuse me.

No, I did not, from the standpoint that system

administrators or any general service member is not allowed to search an e-mail account unless they are directed by

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proper legal authority.

In other words, a squadron commander

or higher or a lawyer is involved in the search as a routine duty, a system administrator is not allowed to search the content of e-mails from another account. Q. You testified earlier that your e-mails were forwarded Who is that commander?

to your commander in Germany. A.

That was Lieutenant Colonel Fisher who was my immediate

supervisor, the commander of the squadron. Q. A. Did the commander tell you how he received the e-mails? He explained to me that they had been searched in Iraq They were forwarded to

by the unit that had replaced mine.

my commander from the commander of the unit in Iraq. Q. You testified earlier he pressured you to make a

statement in response to being confronted with these e-mails. How did he pressure you? A. We went round and round for approximately 20 minutes.

He wanted me to acknowledge the e-mails or to provide some explanation basically to say that I had written the e-mails, in essence, acknowledging that I had violated a perceived violation of "Don't Ask, Don't Tell." Q. Did he show you the "Don't Ask, Don't Tell" policy? MR. SIMPSON: Your Honor, on the last answer,

objection, move to strike on the grounds of hearsay. THE COURT: If this was the witness's commander, it I'm going to overrule the

would be a party admission.

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objection on that basis. You may continue. THE WITNESS: The first thing that happened during

this meeting was my commander read me the DOD policy on homosexuality. BY MR. KAHN: Q. end? A. I was relieved of my duties. In essence, I was fired At the At the end of this meeting -- well, how did this meeting

where I had led 180 men and women in my directorate.

end later that afternoon, my commander called an officer call, there was approximately 30 to 40 officers in my squadron, called an officer call through the whole squadron and said Major Almy had been relieved of his duties, saying basically I had been fired. MR. SIMPSON: of hearsay. THE COURT: BY MR. KAHN: Q. day? A. I was completely devastated. I drove myself home. I How did you react of being relieved of your duties that The objection is overruled. Objection, Your Honor, on the grounds

took my uniform off.

I curled up on the floor of my bathroom

in the fetal position and just balled like a baby for probably several hours.

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Q.

At that time how long had you been serving in the Air

Force? A. At that time it was a little over -- near the 12-year

point. Q. At that time had you ever made a statement to anyone in

the military that you were gay? A. Q. No, I had not. Was there any effect on your security clearance as a

result of your meeting with your commander? A. Approximately three months after I was relieved of my I had a TS or

duties, my security clearance was suspended.

top secret SCI clearance, which is one of the highest level clearances that an individual can have in the military, and that was restricted. My access to classified information was

suspended at that point. Q. Can you remind the Court, please, when this was that you

were first relieved of your duties? A. Q. A. This was March 14th, 2005. Did you contest your discharge proceedings? I did. When I was served formal notification of what we

call a show cause letter -- in other words, that means that the Air Force thinks they have sufficient grounds to discharge me under "Don't Ask, Don't Tell," I had several options at that point. I could have resigned my commission

and gone quietly, I could have done nothing, in which case

776

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the case against me would have moved forward, I could have made a statement, or the option that I chose was to invoke my right to an administrative hearing. Q. And why is that that you invoked your right to an

administrative hearing? A. Because I wanted to fight this as much as I could. I

maintained that I had done nothing wrong, that I had not violated the policy because I never told. In other words, I

kept my private life separate from my professional life. Q. What did you do to prepare for that administrative

hearing? A. I worked a fair amount with my defense counsel, my Air I also had counsel from Service

Force provided attorney.

Members Legal Defense Network which is a non-profit organization in Washington, DC that provides free legal counsel to service members facing potential discharge under "Don't Ask, Don't Tell." two attorneys. Q. A. Did you do anything else to prepare? I did a lot of research on my own. I tried to become as So I worked primarily with those

knowledgeable about "Don't Ask, Don't Tell" as I could looking at DOD and Air Force regulations and guidelines as well as reading as much literature as I could find about the law, academic journals, newspaper articles, as well as reading some of the court cases that had transpired

777

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previously under "Don't Ask, Don't Tell." Q. A. Did you solicit any letters from fellow service members? I solicited and obtained approximately two dozen letters Some of these

from service members that I had worked with.

were junior enlisted or officers who had worked directly for me, some of these were my peers who had worked alongside me, and some of these were superior officers who I had worked for. Q. A. And what was your purpose in soliciting those letters? The purpose in these letters was to show the Air Force

these were men and women who had worked side by side with me who knew my professional conduct, who knew my reputation as an officer, who knew my performance. It was to establish

credibility with the Air Force and show first-hand knowledge of people who knew me and urge that the Air Force retain me, that I not be discharged from the Air Force. Q. Did any of the service members who you asked for a

letter express to you that they supported your discharge? MR. SIMPSON: THE COURT: Objection, Your Honor, hearsay.

Objection is overruled.

You may answer. THE WITNESS: Not one person that I asked to write In other words, they all

a letter in my defense objected.

supported, they all wholeheartedly endorsed writing a letter for me, and they all urged the Air Force that I be retained.

778

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BY MR. KAHN: Q. And once you received those letters, what did you do

with them? A. They were included in a statement that I released. In

preparation with my defense counsel, we released a statement to the Air Force alongside these reference letters that these men and women had written for me. Q. When you say "release," is there some sort of formal

procedure through which you submit them? A. Correct. They were included in the documentation that

was submitted up the chain of command to the Air Force as part of my legal defense. Q. I'm sorry, just to back up for a second, you said that

you received a show cause letter? A. Q. A. Q. A. Yes. At the beginning of the proceedings? Correct. Who issues that letter? The show cause letter has to come from a very senior In this case it was Major General

officer in the Air Force. Gould, G-O-U-L-D.

He was the first officer in my chain of

command who had the proper legal authority to initiate discharge proceedings against me, and he was the second Air Force commander at the time. Q. So you submitted these letters to the discharge

779

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authority that you received.

Did they become part of your

permanent file with the Air Force? A. Q. To my knowledge, yes, they did, yes. And would such letters be kept in the Air Force's

ordinary course of business? MR. SIMPSON: foundation. Objection, Your Honor, lack of

Obviously, Mr. Almy is not a custodian of these

records we are talking about. THE COURT: Well, he is not a custodian but that

doesn't mean he might not have -- well, he might or might not have knowledge about the procedures. question asks that question. You may answer. was? THE WITNESS: please? BY MR. KAHN: Q. Would such letters be kept in the ordinary course of Can you ask the question again, So I think this

The objection is overruled.

Do you remember what the question

business, to your knowledge? A. I believe they would be because this was a formal part

of the documentation, a formal part of my legal defense that was submitted to the Air Force. included in the documentation. Q. Mr. Almy, can you please -- there are some binders to Can you pull out Volume 5, please. So, as such, they should be

your left there.

780

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

MR. SIMPSON:

Your Honor, if I can point out, the

witness's last answer, we have not established any foundation for these letters. doesn't know. THE COURT: Actually, I think he said, I believe He said that they should be kept. He

they would be because they formed a part of the -- I can't remember. I think his words were they were a part of his

discharge file. MR. SIMPSON: that he is guessing. in the normal course. THE COURT: They haven't been offered into evidence Your Honor, again, it seems to me

He is assuming that they would be kept

We will wait until they are formally offered in and

then see if the foundation has been laid. BY MR. KAHN: Q. Can you please, for identification purposes only, turn

to Exhibits 113 -- well, starting at Exhibit 113. A. Q. 113, yes. Okay.

Mr. Almy, is Exhibit 113 a letter from Colonel Paul

Trahan? A. Q. Yes, it is. Can you take your time, please, and look through

Exhibits 113 through 127. Are the documents identified in Exhibit 113 through 127 the letters you received from your superiors and other

781

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service members in response to your request? A. Q. They are, yes. Are these the documents you submitted to the Air Force

authorities in connection with your discharge proceedings? A. I did. These documents -- these letters were a formal

attachment to my letter, my statement that I released to the Air Force. So, in other words, this was an inherent part of

my package, my documentation, my statement that was released to the Air Force. MR. KAHN: here. Your Honor, there are many letters

I don't want to take up the Court's time by So just going

introducing all of them, just certain of them. one by one, if I may. evidence Exhibit 114. THE COURT: Mr. Simpson.

I would like to move to admit into

MR. SIMPSON:

If I may be heard on that, Your

Honor; obviously, we would object to that not only on the grounds of hearsay, as we said already, but also on the ground that this is improper character evidence under Rule 404, also, on grounds of relevance. I don't I don't know

know -- Mr. Kahn has so far said Exhibit 114.

how many exhibits now we are talking about that they are going to try to move into evidence. It would be highly

inappropriate, Your Honor, to include these in the record of this case. Character evidence regarding one witness is

782

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entirely inappropriate and irrelevant.

As I've said, it's

improper character evidence and, again, the hearsay issue. MR. KAHN: THE COURT: MR. KAHN: Your Honor, if I may respond. Go ahead. As a preliminary matter, in the pretrial

order defendants only objected to these documents on the ground of relevance. With regard to relevance, these

documents will demonstrate Mr. Almy's superiors, peers, other service members, showing that they in their belief feel discharging Mr. Almy from the Air Force was detrimental to the Air Force or would have been detrimental to the Air Force. In that regard they are directly relevant whether

"Don't Ask, Don't Tell," good order, discipline, morale readiness, all of the factors identified in the statute and therefore under the Witt factors demonstrate whether "Don't Ask, Don't Tell" furthers any of those interests. In fact, On

"Don't Ask, Don't Tell" detracts from those interests. the hearsay grounds, they're admissions. commissioned officers. THE COURT: I'm not sure they are admissions. They're from

If

there are no objections other than relevance, you want to finish your comments to that objection? MR. SIMPSON: Yes, Your Honor. We could not -- we

were not able to know whether to make an objection based on the fact that it is improper character evidence until we knew

783

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for what purpose the plaintiff was going to offer these exhibits. THE COURT: Well, from the face of them, for

example, your objection of improper character evidence, that objection from the nature of the exhibit itself should have been clear, so I think you waived that objection. Do you

want to address what Mr. Kahn's argument was as to the relevance? MR. SIMPSON: THE COURT: Your Honor --

Other than what you've already stated.

I think the record is clear as to the Government's position, but if there is anything you wish to add, go ahead. MR. SIMPSON: Your Honor, this is connected to our

objections in relation to the testimony of the former service members in general. The opinions of these individuals,

again, I don't know how many we're talking about, but the opinions of these individuals as to whether discharging one service member would be detrimental to the service, it seems entirely irrelevant. THE COURT: the Court attaches. MR. SIMPSON: Again, Your Honor, we would submit Well, that may go to the weight that

that we could probably bring in multiple other individuals who might say contrary to the testimony of these individuals, that the opinion of these individuals, again, regarding one

784

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service member, seems entirely irrelevant as to whether what Congress did in 1993 was constitutional. THE COURT: How many of the exhibits are you moving

into evidence of the 113 through 127? MR. KAHN: Yes, Your Honor. I will list them out

for everybody's benefit. sorry.

No. 113, No. 114, No. 115 -- I'm

As I look at it, it's 113 through 119 and No. 121.

So eight. THE COURT: MR. KAHN: THE COURT: MR. KAHN: THE COURT: What volume are they in? Volume 5. I'm sorry, 113, 114 -113 through 119, plus No. 121. Well, although, as I said, I think all

the objections, other than relevance, are waived, I'm not so sure that I would interpret it as -- a cumulative objection was waived because until the Government knew exactly which of these would be moved into evidence, they couldn't really make that objection. So I have reviewed the exhibits that the

plaintiff is now moving into evidence, and insofar as there's an objection that it's cumulative, that objection, too, is overruled. evidence. MR. KAHN: BY MR. KAHN: Q. Mr. Almy, if you could please turn to Exhibit 114. I'm Thank you, Your Honor. So 113 through 119 and 121 are admitted into

785

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going to put it up on the screen for you as well. easier. A. I'm there. THE COURT:

It will be

I should say that as to these exhibits

which have just been received into evidence, as with the other evidence in the course of this witness's testimony which has been objected to during the evidence given as to some of the other witnesses that has been objected to as improper character evidence, the Court doesn't consider it for the purposes of determining the witness's character. it's not considered for that purpose but for the other purpose which counsel for the plaintiff outlined a moment ago. MR. KAHN: THE COURT: MR. KAHN: BY MR. KAHN: Q. Mr. Almy, do you recognize the name and signature on Thank you, Your Honor. Go ahead. Thank you, Your Honor. So

Exhibit 114? A. Q. A. Yes, I do. And can you tell the Court who signed this letter? This is Lieutenant Colonel Kromer who has since been This is an individual who I had

promoted to full colonel.

known personally as well as professionally for approximately 10 years. I had served with him previously at Scott Air

786

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Force Base and was very involved with he and his wife in our local church. And then towards the end of my career at

Spangdahlem Air Base, he was the com squadron commander, so once I had been relieved of my duties at the 606 and I was moved over to the com squadron, I worked with Lieutenant Kromer on a day-to-day basis. Q. At the top of that page, page 2 of this exhibit, let's Could you just read

see, there is a partial paragraph there. the last sentence? in that paragraph. A. Q. A. Okay.

Well, the only full sentence on that page I'm sorry, read it out loud.

"I have entrusted Major Almy" --

I'm sorry, the very first full sentence on page 2. Okay. I'm sorry. "His leadership on these and other

projects directly contributed to our winning the 2005 Lieutenant General Harold W. Grant Award for 'best small communications squadron' in USAFE," which is the Air Force in Europe. Q. Can you describe for the Court what those projects might

have entailed? A. I was in charge of a variety of different projects that

Lieutenant Colonel Kromer entrusted me with, some administrative, some personnel, some project management type functions. He tried to use my expertise as a com officer

from my 13-year career where I could best serve his squadron there.

787

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Q.

I'm sorry, could you also describe what the 2005

Lieutenant General Harold W. Grant Award is? A. That's a rather -MR. SIMPSON: Your Honor, objection, relevance and And I don't know how many of

improper character evidence.

these letters, the language of them, we're going to be getting into, but to the extent we do that, if we could have a continuing objection, relevance and improper character evidence going through the language of these letters. THE COURT: You may have a standing objection.

It's my understanding, I guess you're going to ask the witness about this, that this was an award that was given to the entire group, though, it wasn't an award that was given to this witness, correct? MR. KAHN: Honor. THE COURT: Mr. Simpson. Go ahead. BY MR. KAHN: Q. Mr. Almy, can you please describe the 2005 Lieutenant You may have a standing objection, I was going to ask him that myself, Your

General Harold W. Grant Award? A. This was an award that is a unit award. It designates It's a

the top communication squadron throughout Europe.

very competitive award and it's the highest honor that a

788

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squadron, a communications squadron can receive. basically designates them as the best unit. Q. A. Q. And so this was not a personal award? This was not a personal award, no.

It

If you could please turn to page 1 of this exhibit.

If

you could turn to paragraph 3 on page 1, I will try to zoom in here for you. Let's see. Could you please read the

second full sentence in paragraph 3? A. Q. A. The one that begins, "In that capacity"? Please. Okay. In that capacity he served with distinction

while deployed in support of OIF, Operation Iraqi Freedom, to Ballad Iraq and sustained repeated mortar and rocket attacks. Q. You answered my question. Thank you. I was going to ask what OIF

stands for.

And then, sorry, in paragraph 4, please. A. Q. Yes. Could you please read the second full sentence that

begins with, "I was called"? A. I was called the same day by the 52d Fighter Wing/Vice

Commander, which is what FW/CV stands for, was asked and performed a health and wellness visit to Major Almy's residence. Q. A. What is a health and wellness visit? What that meant was Lieutenant Colonel Kromer was

789

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charged with checking on my whereabouts, my welfare.

This

occurred after I was relieved of my duties after I was fired. He came to my personal residence and just checked on my well-being. Q. Thank you very much. MR. KAHN: time. I won't take up much of the Court's

I would just like the witness to identify the writers

of the letters. THE COURT: BY MR. KAHN: Q. Turning, please, to 115, Major Almy, who signed That's fine.

Exhibit 115? A. Q. A. It was signed by Major Scott Weenum. How did you know Major Weenum? I initially met him in Air Force ROTC at Wright State

where I was -- where I first came to the Air Force and had known him for the better part of 20 years. So this is an

individual who knew my professional as well as personal career spanning the entire time in my Air Force career. Q. Thank you. I'm turning to Exhibit 116, please. Who

signed the letter, Exhibit 116, please? A. This is Captain Stuart Williamson who served in the

operational section of the 606 Air Control Squadron, my last unit. So he was a subordinate officer but did not work

directly for me but basically worked alongside me and who I

790

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had day-to-day contact with professionally. Q. A. Q. A. Q. Did you deploy to Iraq with Captain Williamson? Yes, I did. Did he observe your operations while in Iraq? He did on a daily basis, yes. Moving on to 117, please, Mr. Almy, who signed

Exhibit 117? A. This was a Captain Timothy Higgins who also served in He would have been a

the operations section of my squadron.

peer or contemporary of Captain Williamson who I just described there. Again, I had day-to-day contact with

Captain Williamson -- excuse me, Captain Higgins, as well while I was deployed to Iraq. Q. Thank you. Let's see No. 118. Who signed Exhibit 118,

Mr. Almy? A. This was Captain Walker who was a chaplin on my base at He is someone that I went to for

Spangdahlem in Germany.

spiritual counseling after I had been relieved of my duties or fired. And then over the course of approximately a year

developed a close friendship with him and he provided a lot of counseling, spiritual counseling and mentorship, guidance for myself. Q. A. Q. Did you know -- it looks like he is ranked as captain? At the time he was a captain, yes. Did you know Captain Walker before you were placed in

791

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discharge proceedings? A. No. I knew who he was from being on my base, but I

didn't really have a personal relationship with him, no. Q. A. No. 119, please. Who signed Exhibit 119, Mr. Almy?

This was Captain Tran who was a captain or flight

commander in the communications squadron, the 52nd Communications Squadron which was commanded by Lieutenant Colonel Kromer that we spoke about previously. So this was a

gentleman who I worked side by side with after I had been relieved of my duties from the 606 and moved over to the communications squadron. Q. That was 119. So next is 121, please. Who signed

No. 121? A. This was Lieutenant Freeman, a soldier who was one of He worked directly for me. His first So as

the lieutenants.

assignment in the Air Force was to my unit to the 606.

such, I worked with him for the better part of two years as his commander and provided mentorship, officership, career development, professional development to him. Q. A. Q. And so you served with him in Iraq as well? Yes, correct. Thank you. And then finally, just to go back to 113, if

I may. A.

So, finally, No. 113, who signed this document?

This was signed by Colonel Paul Trahan, United States

Army, Retired.

792

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Q. A.

How did you know Colonel Trahan? I knew him initially from the first time that I was

stationed in the Washington, DC area when I was at Quantico from 2001 to 2002, maintained a personal contact, friendship with him for the duration up until now. with him. MR. KAHN: like to add one. lines. I'm sorry, Your Honor. I would just I am still friends

It's another officer.

Goes along the same

It's Exhibit 120. MR. SIMPSON: THE COURT: Same objection. Thank you.

Same objection, okay.

The objection is overruled. admitted. BY MR. KAHN: Q. A. Mr. Almy, who signed Exhibit 120?

Exhibit 120 is ordered

This was Lieutenant Freeman who was there -- again, he I was his commander. He

was a subordinate officer to me.

was one of my flight commanders and worked directly for me on a day-to-day basis. Q. Did you work with First Lieutenant Freeman in Iraq as

well? A. Not directly. He stayed back in Germany, but I

maintained close working contact with Lieutenant Freeman while I was in Iraq. I spoke with him several times a week.

I was still in charge of the troops that were left behind in

793

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Germany in my unit, and as such, Lieutenant Freeman was my point man, if you will. He was basically the one who was in

charge of the folks on a day-to-day basis that were left behind in Germany. contact with him. Q. Thank you. Mr. Almy, to your understanding, was your So I still maintained close working

discharge based on anything in the personal e-mails discovered on your computer in Iraq? A. Q. That was the sole basis for my discharge. Were you ever accused of any violation of the Uniform

Code of Military Justice? A. Q. No, I was not. To your knowledge, would it have been permissible for a

service member to discuss heterosexual conduct using the exact same computer e-mail account on the exact same government computer? MR. SIMPSON: foundation. THE COURT: MR. KAHN: THE COURT: BY MR. KAHN: Q. Mr. Almy, as a communications officer -THE COURT: this case. There is no legal protection claim in Sustained. May I lay a foundation, Your Honor? You may attempt to lay a foundation. Objection, Your Honor, lack of

Even if you laid the foundation, what would be

794

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the relevance? MR. KAHN: Just goes to show the involvement under

Lawrence, Your Honor. THE COURT: BY MR. KAHN: Q. Mr. Almy, as a communications officer are you familiar All right. Go ahead.

with what the uses of -- what the permissible uses of the government e-mail accounts are? A. Q. A. Yes, I am. I have a fairly thorough knowledge of that.

What is your knowledge based on? Primarily government e-mail is for work-related In a deployed environment,

purposes, duty-related purposes.

such as I was in in Iraq at the time, it was also authorized for personal or morale purposes; in other words, to keep in touch with family and friends, loved ones back home. THE COURT: I'm sorry. Mr. Almy, listen carefully

to the question, because the question goes to the knowledge that you had at the time of your discharge as -- I don't want to misstate this because it is rather a technical area, but your knowledge as a communications specialist or in the civilian world an MIS specialist. THE WITNESS: THE COURT: Yes, Your Honor.

I'm going to ask the attorney to

restate the question, but listen carefully to the question that was asked and then answer that question.

795

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

Could you repeat your question, Mr. Kahn? MR. WOODS: I'm not sure that I can but I will

BY MR. KAHN: Q. Mr. Almy, as a communications officer in the Air Force,

are you familiar with the permissible uses of e-mail, of government e-mail accounts? A. I am quite familiar with them from the standpoint that

part of my duties as a communications officer or in the career field in general, the communications career field, is to operate and maintain the network. The system

administrators who are in charge who are maintaining the network on a day-to-day basis fall within the com squadron, which is what I was a part of. That was my career field. So

as such, I was very familiar with the network as well as the permitted use of government e-mail. THE COURT: If I may, when you say "systems

administrators," would someone who was a systems administrator report to you? THE WITNESS: THE COURT: BY MR. KAHN: Q. Given your knowledge in this area, would it have been Yes, they would, Your Honor.

Thank you.

permissible for a service member to discuss heterosexual conduct using the exact same government e-mail account on the

796

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exact same government computer? MR. SIMPSON: THE COURT: Objection, Your Honor, relevance.

Overruled. Yes, it would have been.

THE WITNESS: MR. KAHN: THE COURT:

Thank you. Mr. Almy, you have testified earlier

that -- I think you testified earlier, so if I misstate your testimony, please say so. Counsel could say so, too, but

sometimes they're a little reluctant to when I ask the questions. That's why I try not to ask too many questions. But I think that you testified earlier that it was your understanding that a systems administrator, unless they had permission from someone higher in the hierarchy, couldn't investigate by going into anyone's computer to look at e-mail; is that correct? THE WITNESS: That's correct, Your Honor. As a

communications officer, I was very -- the systems administrators basically worked for me. So, as such, I was

very familiar with their roles and responsibilities as outlined by Air Force regulations of which I had read. THE COURT: So the Air Force regulations would

cover this issue or this area of who had authorization to look or investigate into anyone's computer; that is, their U.S. government computer? THE WITNESS: Yes, Your Honor.

797

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THE COURT:

Can you tell me about that? A systems administrator's primary As

THE WITNESS:

responsibility is to operate and maintain the network. such, the only type of information they are -- in their day-to-day performance of their duties, the only type of

information they are allowed to read on e-mail is what we refer to as the header, information such as the title of an e-mail, who is sending it, who is the recipient, and the date of that e-mail. information. That's what we referred to as the header

A systems administrator is not allowed to read And this is outlined

the content or the body of an e-mail.

in Air Force regulations that outline their roles and responsibilities as systems administrators of which I was familiar as a communications officer. The two notable exceptions to that is if a systems administrator suspects a threat to the network, such as a malicious virus that would harm the network. And the other

exception is if they are directed to by a proper legal authority. THE COURT: administrators. So that's what applies to systems

What are the regulations that apply to

others who are not systems administrators? THE WITNESS: It is the same across the board, Your

This is specific for the systems administrators

career field because they are the ones who have

798

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administrative rights to the network. THE COURT: But there is no more authority that is

granted to others other than someone higher, someone with legal authority? THE WITNESS: THE COURT: BY MR. KAHN: Q. A. Q. Mr. Almy, how long did your discharge proceedings take? Approximately 16 months. And did you ultimately participate in the administrative Correct, Your Honor. Go ahead.

I'm sorry.

hearing that you requested? A. I ended up waiving my right to an administrative hearing

the week before it was scheduled, which was approximately February of 2006. Q. A. And why did you do that? I did that for a variety of reasons. First was to -- in

counsel, with my defense counsel's guidance, under him he advised that there was actually no way that we would win this hearing. I also wanted to secure an honorable discharge in

the event that I would be discharged, so that was part of my waiver of my hearing was that should the Air Force make a decision to discharge me, that I would be guaranteed an honorable discharge. And finally, because I was emotionally I just don't think I had the

exhausted at this point.

emotional strength to go through a trial or a hearing.

799

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Q.

What would it have meant to you to have received less

than an honorable discharge? A. It directly affects the benefits that a veteran There are a lesser amount of benefits if one does It also affects

receives.

not receive an honorable discharge.

potential federal employment in the civil service sector. Every future job interview in the civil service sector they look at what we call the DD-214, which is the discharge paperwork, and it shows whether or not one received an honorable discharge or anything less than an honorable discharge. So it has direct potential on employment after

the military as well as just the overall stigma of receiving something less than honorable to the end of a career. Q. After you waived that administrative hearing, what

happened? A. At that point I submitted my statement, my formal legal

statement, in guidance with my defense counsel, along with the letters that we spoke about previously that was part of the case or part of my statement to the Air Force. submitted formally up the chain of command. That was

Ultimately, it

went up to the Secretary of the Air Force who was the only individual who can make a decision to discharge an officer. Q. A. And what was the outcome? The Secretary of the Air Force directed that I be

discharged.

800

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Q.

And what happened on your last day of service in the Air

Force? A. On my final day of service, I went to the personnel We were doing routine personnel matters that are That's where the DD-214 I

section.

associated with a discharge.

discharge paperwork that I mentioned earlier was prepared. refused to sign this paperwork because it listed the reason for discharge was homosexual admission, and I never admitted anything to the Air Force. So I told the personnel NCO,

non-commissioned officer, who was handling my discharge paperwork I could not sign that because I had not admitted anything. I had not made a statement to the Air Force. Once

all that was complete, my commander called the police escort to escort me off the base on my final day of active duty. Q. A. Was the police escort public? It was, yes. MR. KAHN: Your Honor, at this time I would like to

introduce Exhibit 112 which is in the same binder. Exhibit 112 is Mr. Almy's DD-214 form he just referred to, the discharge document. THE COURT: Any objection to 112? Other than relevance, Your Honor, no.

MR. SIMPSON:

We do object on the grounds of relevance. THE COURT: 112 may be admitted. The relevance objection is overruled.

801

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MR. KAHN: BY MR. KAHN: Q.

Thank you, Your Honor.

Mr. Almy, you have it in front of you?

I'm going to put

it up on the screen as well. A. Q. A. Q. A. Yes, I do. You see box 21? Yes, I do. Can you read that? This is the signature of the member being separated and

it's typed in there "Member refused to sign." Q. A. Q. Does that relate to what you just testified about? Correct, yes. And if you look down further on, I think it's box 28,

can you read what's written there? A. "Narrative reason for separation." And then it's typed

in "Homosexual Admission." Q. And is it your testimony that you did not make a

homosexual admission? A. Correct, I never made an admission or statement to the

Air Force regarding my personal life. Q. And in box -- it's a little difficult to read maybe on Box 13, what's listed in box 13, Mr. Almy?

the screen. A.

This says this box is decorations, medals, badges,

citations, and campaign ribbons awarded or authorized. MR. SIMPSON: Your Honor, again, objection on

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

grounds of improper character evidence and relevance. THE COURT: Well, the document has been admitted,

so your objections are noted for the record. BY MR. KAHN: Q. Without going through all of them, Mr. Almy, do those --

well, first of all, it looks like they continue into the remarks box, box 16; is that right? A. Q. A. Yes, it does. And what's generally listed there? This is listed are all the awards or decorations that I

received throughout my 13-year career. Q. And do the awards and decorations listed in those

two boxes appear to be an accurate list? A. It looks like an accurate list, yes. THE COURT: MR. KAHN: THE COURT: MR. KAHN: 20 minutes left. THE COURT: All right. We will recess for lunch Is now a good breaking point? Sure, Your Honor. Are you almost done? I would say there's approximately

and be in recess until 1:15 this afternoon. (Lunch Recess) ---o0o---

C E R T I F I C A T E DOCKET NO. CV 04-8425 VAP I hereby certify that pursuant to Section 753, Title 28, United States Code, the foregoing is a true and accurate transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

/S/ Phyllis Preston PHYLLIS A. PRESTON, CSR Federal Official Court Reporter License No. 8701

DATED:

July 16, 2010