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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 Court Reporter: For the Defendant: v. DANIEL CHOI,

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA --------------------------------UNITED STATES OF AMERICA, Plaintiff, : : : : : : : : : : :

Case No. 10-739M August 29, 2012 Wednesday 9:48 a.m. - 10:44 a.m.

Defendant. ---------------------------------

TRANSCRIPT OF TRIAL BEFORE THE HONORABLE JOHN M. FACCIOLA, UNITED STATES DISTRICT JUDGE APPEARANCES: For the Plaintiff: MS. ANGELA GEORGE 555 Fourth Street NW Washington, DC 20530 (202) 252-7758 MR. DANIEL CHOI 1229 Euclid Street NW Washington, DC 20009 (714) 654-0828 Kellie M. Humiston, RMR, CRR Room 6720, U.S. Courthouse Washington, DC 20001 (202) 354-3187

Proceedings reported by machine shorthand, transcript produced by computer-aided transcription.

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 that. THE CLERK:

P R O C E E D I N G S

This is criminal case year 2010 739M, United Angela George and Brittan

States versus Lieutenant Daniel Choi.

Heller for the Government, Daniel Choi representing himself as pro se. This is a bench trial, day one. THE COURT: interrupted? MS. GEORGE: Your Honor, on August 31st, 2011, the case Where were we before we were so rudely

was adjourned and we were in the midst of the defendant's case. THE COURT: MS. GEORGE: THE COURT: MS. GEORGE: And we had a witness on the stand. Captain Beck. Is he here? No. The Court excused all witnesses in The Court stated that all Yes, Your Honor.

reference to the mandamus petition. witnesses were excused. THE COURT: MS. GEORGE: THE COURT: Which court?

You, Your Honor. All right. I'm sorry. I don't recall doing

When did I say that? MS. GEORGE: It was -- I didn't mark it in the

transcript.

I didn't know the Court was going to ask me that But in reference to the transcript, I do have a

specific question. copy for you.

THE COURT:

Oh, the transcript from August 11th?

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 his case.

MS. GEORGE: August 31st. THE COURT: MS. GEORGE: THE COURT: MS. GEORGE:

The transcript from August 29th through

Of last year? Of last year. All right. At the conclusion of the Government

indicating that it was going to file a petition for mandamus, the Court noted that the witnesses were excused. THE COURT: All right. Then how -- please be seated.

How shall we proceed, according to the Government? MS. GEORGE: Your Honor, I guess the defendant can resume But the Government had a few

The Government had rested.

preliminary matters before the Court came in. THE COURT: MS. GEORGE: What are they now? The first one is I just wanted to apprise

the Court that on Friday, August 24th, the defendant e-mailed the Government approximately around 4:00 p.m. indicating that he had insufficient discovery materials. I believe he stated in his

e-mail that he had some documents and some photos, but he was requesting full discovery again. The Government did prepare full discovery and served it on the defendant on Tuesday, August 27th at about 10:30 a.m. picked it up himself, so he does have full discovery. He

I turned

over all documents that were previously given to his former defense counsel, all of them. I also provided him with a courtesy copy of

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the Government's trial exhibit notebook, a courtesy copy of the Government's police paperwork notebook, and he received all DVD's and CD's and radio runs, just to summarize what was turned over. THE COURT: MS. GEORGE: Thank you. In addition to that statement, the

Government did review the transcript before resuming trial and reviewed his case jacket, and as the Court knows, the defendant has always previously appeared with defense counsel, but today this is his first appearance pro se. And Rule 58 indicates that the

defendant should be apprised that he has the right to request appointed counsel if he wishes. THE COURT: MS. GEORGE: He can only do that if he's indigent. That's correct, Your Honor, and if he's in a

petty offense case facing jail time, he's facing up to six months in this case, per Scott v. Illinois and Rule 58. THE COURT: But he would have to file an affidavit of his

indigency before he could do that. MS. GEORGE: I don't believe Rule 58 -- I don't believe

Rule 58 speaks specifically to that. THE COURT: MS. GEORGE: But the Criminal Justice Act does, I believe. I understand, Your Honor, but I believe

under his due process rights and Rule 58, the Court should at least apprise him of that fact and indicate whether he wants appointed counsel or not. THE COURT: All right. I thought he had fired his

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lawyers. MS. GEORGE: lawyers -THE COURT: I do. I thought he had made it quite clear I don't know the specific details of how his

in a document that I had seen that he was firing them after the mandamus order was issued by Judge Lamberth. MS. GEORGE: And even if that's the case, the defendant

still should know that if he wants to have appointed counsel and he can't afford to retain counsel, he can seek that from the Court. THE COURT: MS. GEORGE: case. All right. And the Government is ready to resume the He --

I did receive a copy of the defendant's motion. THE COURT: MS. GEORGE: Well, we'll get to that later. Okay.

He did indicate that he filed it this

morning. THE COURT: Oh, he did file it. All right.

You have the case, sir. plan to do?

Where are we and what do you

First of all, although I -- let me advise you, though

I'm not certain it is necessary, that you have the right, sir, if you could establish to the Court's satisfaction that you can't afford counsel, to have counsel appointed to represent you. Do you

wish me to avail -- do you wish to avail yourself of that right and do you claim that you cannot afford counsel? MR. CHOI: THE COURT: No, Your Honor. I prefer proceeding --

So you wish to proceed pro se?

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MR. CHOI: THE COURT:

Yes, Your Honor. Is that satisfactory? Yes. Thank you, Your Honor.

MS. GEORGE: THE COURT: Yes, sir. MR. CHOI:

You're welcome.

Your Honor, before we begin, I did have a

Motion to Dismiss for prosecutorial misconduct. (Defendant's Motion to Dismiss) THE COURT: All right. Let's now -- my clerk brought it Has this

in to me this morning, but it didn't bear a file stamp. document been filed, Madam Clerk, in the court file? THE CLERK: THE COURT: bears the file stamp? MS. GEORGE: opportunity to file it. file stamp on it -THE COURT: MS. GEORGE: THE COURT: court jacket. All right. -- with today's date. Okay. Thank you. Yes. Not yet.

It's not in the record yet.

Miss George, you said you had a copy that

Mr. Choi, I asked him if he had an

He sent the Government a copy with a red

So that now is part of the

All right.

Yes, sir.

MR. CHOI:

Your Honor, I just wanted to note that I did

subpoena several witnesses, including Captain Phillip Beck, not only in this trial, but in my DC Superior case trial. evading subpoena. He has been

I've used a process server as well on

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non-government agents for the Park Police, namely White House officials. I had a private process server go to the White House

executive office of the president, approach general counsel, and they have been evading every single attempt, at great expense to me. I do not see any of those essential witnesses, starting with

Shin Inouye, I-N-O -THE COURT: Well, I think what you want to do, sir, is if

you would be so kind, I think you probably want to put in the record now those subpoenas and your copy of them. MR. CHOI: THE COURT: Yes, Your Honor. So we'll know the names and -- do you have

declarations or affidavits from your process server? MR. CHOI: THE COURT: Yes, Your Honor, I do. All right. Well, why don't you -- why don't

you share those with Miss George and then we'll make them a part of the record. MS. GEORGE: MR. CHOI: THE COURT: MS. GEORGE: Honor. THE COURT: All right. That's not a problem. But you Your Honor, if -I'm sorry.

These are my only copies. Yes. Yes. We'll make copies.

I was going to request that, Your

say that you're -- the documents you have, which were made part of the record, will attest to efforts made by a process server to serve certain denominated people and his -- the process server's

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inability to do so. MR. CHOI: to that. THE COURT: MR. CHOI: minutes. THE COURT: Okay. All right. Now, so as far as we're -Okay. Is he here? Yes, Your Honor. And he is willing to testify

I can call him and he'll be here in 30

that goes, you claim that these Government witnesses are evading service process and you're not able to proceed. Now, I take it,

then, we can't hear from any witnesses today, because they're not here. MR. CHOI: proceed. THE COURT: MR. CHOI: Okay. If -- it is my understanding now that the I do have one, Your Honor, and I am ready to

Motion to Dismiss will not be heard at this time? THE COURT: that. MR. CHOI: THE COURT: Yes. Now, you served it this morning. You filed Well, it's -- let's talk a little bit about

it this morning, I guess.

You e-mailed it, it must have been It is the ordinary

yesterday, because I think I saw it then.

practice of the Court, indeed due process requires no less, that the Government would be given an opportunity to respond to this in writing. Now, it could be said that we should stop everything

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until we do that, in which case I would have to set a time for a -for Miss George's response and for a hearing on the motion. I also think, because you are proceeding pro se, you're going to have to shape the problem you're having with your witnesses in another Motion to Dismiss if that's what you're going to claim. Do you see what I mean? MR. CHOI: THE COURT: MR. CHOI: Yes, Your Honor. I will file that.

Now, who is the witness you have today? Mr. Paul Yandura. I'm sorry. I couldn't hear that.

MS. GEORGE: MR. CHOI: THE COURT: Police? MR. CHOI: at the White House. THE COURT:

Yandura, Y-A-N-D-U-R-A. And Mr. Yandura's position is with the Park

No, sir.

He is a civilian and he used to work

All right.

And just briefly, what would

he -- a brief proffer of what his testimony would be. MR. CHOI: He will show the legal basis of my

constitutional arguments, particularly the First Amendment analysis, which is inherent in the charge itself, the failure to obey a lawful order. He will talk about messages that have upset

powerful people in this District, and he will show animus on the part of government officials, those same government officials who are evading subpoenas, Your Honor. THE COURT: All right. And he is here today? He's in

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the room? MR. CHOI: THE COURT: Yes, Your Honor. Miss George, should we, in the interests of

efficiency, hear that testimony subject to your motion to strike it on the grounds, for example, consideration that is barred by Judge Lamberth's mandamus order? MS. GEORGE: Your Honor, the Government will -- based

upon his brief proffer, it sounds like he's describing a legal issue and not a factual issue that's related to the elements of the crime. The Court alluded to the fact that in order to consider the

motion that he filed this morning, that the Government would have a right to respond in writing. The Government is suggesting this, Your Honor: given

that the defendant is first appearing pro se, he's filed a motion to dismiss, the Government agrees with the Court, the Government would ask permission to respond in writing and then for the Court to set a motion schedule so that defense counsel -- I mean, Defendant Choi can file the legal motion in reference to Mr. Yandura and any other issues that he wants to raise, so that he has the understanding that these are the time periods to submit motions, the Government has the right to respond, and he waives the motions if he does not file them within the motion schedule. that's what the Government suggests. THE COURT: has he come from -Is Mr. Yandura in the District of Columbia or So

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MR. CHOI: THE COURT:

Yes, Your Honor. All right. Yes. Could you please rise, sir? Sir, would it be Mr. Yandura?

MR. YANDURA: THE COURT:

a grave inconvenience to you if you had to return to court at a later date? MR. YANDURA: THE COURT: if I may ask? MR. YANDURA: THE COURT: MR. YANDURA: THE COURT: Yes. Are you practicing law in the city? No. Okay. All right. Thank you, Mr. Yandura. No. Are you employed in the District of Columbia,

I think that the suggestion Miss George makes is a good Why don't we do this: Why don't I take a brief recess, you

consult with the defendant and come up with a motion schedule that's acceptable to both sides. comprehensive as possible. MS. GEORGE: THE COURT: Yes, Your Honor. All right. So all the things you want me to Why don't I take about ten Please work on making it as

consider are in one place. minutes -MR. CHOI: THE COURT: MR. CHOI:

All right?

Your Honor --- you can talk to Miss George. Yes.

I just need a little clarification --

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THE COURT: MR. CHOI:

Sure. -- on subpoenas as they relate to the

I don't know if I did it correctly, but I did use a And is there any support that I can get from -I think what you want to do is -- is

process server.

THE COURT:

supplement your motion with affidavits and declarations about -- by your process server of all the efforts he made so that Miss George can see what your proffer is going to be and respond to it if she can. Is that fair, Miss George? MS. GEORGE: That is fair, Your Honor, but I'd just like

to reiterate to Mr. Choi that the Government did provide him information with how to subpoena Park Police and Secret Service officers. He could -- and I just want that on the record. And let me place this, because Captain Beck did call the Government yesterday. avoiding service. trial was. I want it clear on record that he is not

He called me to find out what the status of the

I informed him of the Court's order to Mr. Choi that he He is available today, he said. So I

should subpoena witnesses.

don't know what his availability is after today -THE COURT: MS. GEORGE: Well --- but I want the record to reflect that He did indicate that he had not

he's not avoiding service.

received or been served a subpoena. THE COURT: All right. In any event, I think that's one

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of the issues we have to take up. MS. GEORGE: THE COURT: MS. GEORGE: (Recess: THE COURT: MS. GEORGE: Certainly, Your Honor. We'll be in recess until 10:10. Thank you. 10:02 a.m. - 10:40 a.m.) Miss George, was progress achieved? Yes, Your Honor. And thank you for the

recess so that we could discuss a motions schedule. Mr. Choi and I have agreed to the following, that all motions from either side will be due on September 7th of this year. The responses will be due, based upon the normal local rules, 14 days, which will be September 21st. And then any replies will be

due on September 28th, seven days from that date. And then we also agreed upon, after consultation with Miss Podger, if the Court is available, a motions hearing date on October 17th, 2012. And I've discussed this next issue with Mr. Choi. The

Government is requesting that it be allowed to file its response to the motion that was filed today on September 21st with all of its other responses. We do contemplate that we might file an omnibus

response if it is appropriate. THE COURT: MS. GEORGE: All right. Yes. That's acceptable to everyone?

And then defense counsel -- Defendant

Choi and the Government also discussed that we would choose the trial date at the motions hearing date --

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THE COURT: MS. GEORGE: THE COURT: MS. GEORGE:

All right. -- at that time. That's -- that's fine. And Mr. Choi had a question about whether he

has subpoena power in reference to the motions hearing, and I explained to him that if he had witnesses that he thought should testify regarding the issues in his motions, he certainly can subpoena witnesses for that date. THE COURT: And that's -- that's perfect advice. You

have the absolute right under the Constitution to have subpoenas issued to you in blank. courthouse and get them. MR. CHOI: Okay. So my signature on them is just as Okay? All you have to do is come to the

powerful as the Court's? THE COURT: No. But what happens is the clerk -- you

come and say, I'm so-and-so, here's the case number. MR. CHOI: THE COURT: bear the clerk's name. MR. CHOI: THE COURT: MR. CHOI: THE COURT: Sure. She'll issue you subpoenas in blank. They

You have to fill them out after that. Great.

Okay.

All right? Thank you, Your Honor. But that's the constitutional right you have.

If you have any difficulties in getting those subpoenas, you call me. Okay?

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MR. CHOI:

Thank you, Your Honor, and I just wanted to The other Park Police, Sergeant

bring that up very briefly.

Bindeman, had not returned -- B-I-N-D-E-M-A-N, has not returned any of my e-mails or faxes, and that all the information was given to me very kindly by Miss George and all of the individuals who are evading service, I don't know what to do, but Mr. Brian Bond, Mr. Shin Inouye and Mr. Johnathan Carson, there's only three of them, and they are material to what I need, and they have not come here today at 9:30. And to clarify, U.S. Park Police Captain Beck, I was not insinuating that he was, as Miss George explained, evading this trial, because I assumed that he would be here. subpoena in my other trial. THE COURT: MR. CHOI: That's in the Superior Court? Yes, Your Honor. And as I understood, at day He was evading a

three of last year, the -- your order from the bench was that you believed that we might be in the status where the witnesses are excused, but you did not give a definitive, yes, they are excused. THE COURT: Well, we'll try to confront that. But a

couple of points that, as I say, you're entitled to subpoenas to be issued in blank. The second thing is since you've proceeded

pro se, Miss George I'm sure will confirm this, you certainly are permitted to attach to your motion declarations or affidavits that support the factual assertions you're making, and that's a very good idea to do that. So please do that. And if you want to

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proffer the significance of a witness's testimony, there's no better way to do it than have a declaration from that witness as to what that witness is going to say. MR. CHOI: THE COURT: MR. CHOI: THE COURT: MR. CHOI: THE COURT: Thank you, Your Honor. That's what I'll be looking at. And do I copy the Court as well -What you do is you file. Okay. You take -- you bring it here. When you

get -- it's ECF criminal, isn't is it, Miss George? MS. GEORGE: THE COURT: That's correct, Your Honor. So it's still ECF. So you'll be preparing

the documents, you put them into pdf format and you follow the instructions how to file them. If you have any problem with that,

just call Miss Coln and she'll help you do it. MR. CHOI: THE COURT: Thank you, Your Honor. Okay. The clerk's office is here to help

you, and they get outstanding reviews on a national level for their assistance to all people, so don't hesitate to ask a question. MR. CHOI: THE COURT: Thank you, Your Honor. All right. We'll confirm -- we'll put that Court

agreed-upon stipulation into an order and issue it shortly. will be in recess. Thank you, very much. Thank you, Your Honor.

MS. GEORGE:

(Proceedings adjourned at 10:45 a.m.)

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CERTIFICATE OF OFFICIAL COURT REPORTER

I, Kellie M. Humiston, RMR, CRR, certify that the foregoing is a correct transcript from the record of proceedings in the above-entitled matter.

__________________________ Kellie M. Humiston

August 31st, 2012 ___________________ Dated