Free Transcript - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE

4 UNITED STATES OF AMERICA, 5 Plaintiff, 6 v. 7 THOMAS J. SMITH, 8 Defendant. 9 10 11 12 13 BEFORE: 14 APPEARANCES: 15 16 17 18 19

: : : : : : : : : -

Criminal Action

No. 08-08-GMS -

Wilmington, Delaware Thursday, May 29, 2008 10:16 a.m. -

HONORABLE GREGORY M. SLEET, Chief Judge

SHAWN EDWARD MARTYNIAK, ESQ. Special Assistant United States Attorney Counsel for Government KEIR BRADFORD, ESQ. Federal Public Defender's Office Counsel for Defendant

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THE COURT:

Good morning.

Please be seated. We

MR. MARTYNIAK:

Good morning, Your Honor.

are here this morning to hear an evidentiary hearing in the matter of United States versus Thomas Smith, 08-08. Martyniak representing the government, Your Honor. The government is ready to proceed. THE COURT: Good morning, Ms. Bradford. Shawn

Good morning, Mr. Smith. Are you ready? MS. BRADFORD: I am, Your Honor. Before we

proceed, I would just ask for a motion to sequester all witnesses. THE COURT: So ordered. Your Honor, the government calls

MR. MARTYNIAK: Officer Rinehart. THE COURT:

Okay.

... MICHAEL RINEHART, having been duly sworn as a witness, was examined and testified as follows ... DIRECT EXAMINATION BY MR. MARTYNIAK: Q. Officer Rinehart, you are clearly a Wilmington Police Correct?

Officer. A. Q.

Yes, sir. As a Wilmington Police Officer, what are your job

duties?

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Rinehart - direct 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 A. Patrol functions, basically patrol assigned districts

and conduct stops, motor vehicle stops, enforce city rules and regulations, as well as state laws. Q. A. How long have you been a Wilmington Police Officer? Approximately three years. It will be three years

July 5th. Q. A. Q. 2008? A. Q. Yes, sir, I was. Were you working as a patrol officer, in that Have you been a patrol officer since you were hired? I have. Do you recall if you were working on January 8th of

capacity, on that date? A. Q. Yes, sir, I was. Do you recall what times on January 8th you were

working or what shift? A. Q. A. Q. A. 11:00 in the p.m. until 08 a.m. And did you have a partner working with you? I did. Officer Muziol.

Is Officer Muziol still your partner? No. I have since trained, I am training another

rookie now, I guess you could say. Q. Do you recall a specific area or location that you

were assigned to with Officer Muziol on January 8th of 2008? A. We were assigned to the 16th District, which

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Rinehart - direct 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 encompasses the 600 block of Madison Street. Q. And do you recall if you were involved in the

investigation into a Thomas Smith? A. Q. A. Q. Yes, sir, I was. Did you meet Thomas Smith that evening? Yes, I did. Is the Thomas Smith that you met that evening in the

court today? A. Q. Yes, he is. Can you describe for the Judge what he is wearing and

where he is seated? A. He is the male subject at the defense table wearing

all orange. MR. MARTYNIAK: May the record reflect that he

has identified the defendant? THE COURT: BY MR. MARTYNIAK: Q. On January 8th of 2008 were you patrolling the 600 Yes.

block of North Madison Street? A. Q. A. Q. A. Q. Yes. What were you wearing on that day? Full uniform. Just like today? Correct. How about Officer Muziol?

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Rinehart - direct 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 A. Q. A. Q. A. Q. A. Q. A. Q. A. Full uniform as well. What type of vehicle were you driving? Fully marked Wilmington Police vehicle. You indicated that that was your assigned district? That is correct. Are you familiar with that area? I am. Would you consider that a high-crime area? Yes. Why would you consider it that? There is criminal activity in that area constantly,

all hours of the day and night, from drug sales to shootings, homicides. Q. well? A. Q. 8th? A. I believe it was approximately 45 degrees outside, Yes. Do you recall what the weather was like on January You name it, that area has it.

Was it true of that area on January 8th of 2008 as

calm winds, clear. Q. And in the area that you came into contact with Thomas

Smith, what was the lighting like in that area? A. It was very well-illuminated. There were numerous

residential lights on as well as DP&L, I guess, streetlights.

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Rinehart - direct 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 witness? THE COURT: BY MR. MARTYNIAK: Q. Officer, I have handed you a map. Could you describe Yes, you may. District. THE COURT: THE WITNESS: MR. MARTYNIAK: The Center City District? Yes, sir. Your Honor, may I approach the city called? THE COURT: Officer, what is this area of the

It's North Wilmington? THE WITNESS: We refer to it as the Center City

for the Judge what is that a map of? A. This is a map of the 600 block of Monroe as well as

Madison Street. Q. A. Q. Is that the area in which you stopped the defendant? It is. Is that map a fair and accurate depiction of the area

as you know it to be? A. Yes. Minus for vegetation on the trees was not there

the night that this occurred. Q. A. Q. If you would -- do you have a pen with you? Yes, I do. Could you mark your location and the defendant's

location when you and Officer Muziol first contacted him? A. Just an X, sir?

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Rinehart - direct 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 vehicle was. Q. For your location, I guess, if you would, write a P.

And for the defendant's location mark a D. A. Q. Okay. Could you describe for the Judge where those locations

are in relation to the relative street locations? A. We were about midway between West Sixth Street and

West Seventh Street, adjacent to the basketball courts in the park there, Your Honor. Q. A. Q. A. Q. A. Q. A. Q. Where was the defendant located? He was walking on the west side sidewalk. At which location? On Madison Street, 600 block of Madison Street. Was he closer to Sixth Street or Seventh Street? Closer to Seventh. So your patrol vehicle -- who was driving? Officer Muziol. Officer Muziol's patrol vehicle was about in the

center of North Madison -- I am sorry, the center of the street on North Madison about between Sixth and Seventh Street? THE COURT: I guess he should say where the

That's a leading question. MR. MARTYNIAK: Yes, Your Honor.

BY MR. MARTYNIAK: Q. If you could describe where the vehicle was located

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Rinehart - direct 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 when Officer Muziol -- who came into contact with the defendant first? A. first. Street. Officer Muziol came into contact with the defendant We were traveling north on Madison Street from Sixth And we were just basically maintaining a safe It is a one-way

distance on both sides of the vehicle. roadway. Q.

Where was the vehicle located between Sixth and

Seventh Street? A. block. Q. You earlier stated that the defendant was located About midway. It was stopped about midway up the

closer to Seventh Street? A. Q. Correct. He was walking southbound.

And did you or Officer Muziol attempt to stop the

defendant? A. Q. Officer Muziol did attempt to stop the defendant. Can you explain why you attempted to stop this

particular individual? A. We had been instructed by our Lieutenant, due to

recent criminal activity in that area, to give that area special attention, high-visibility patrols, to stop and identify anyone that was out walking in that area, and to just basically make our presence known. We observed the defendant walking southbound.

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Rinehart - direct 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 second? He was the only subject out walking. 3:00 in the morning, about 3:15. him to find out who he was. Q. A. Can you describe that encounter for the Judge? Yes, I can. We observed him walking south. He had I guess it was about

We stopped to speak with

his hands in his pockets, which, through training and experience of mine in the past, I have learned that subjects sometimes can carry illegal narcotics or firearms. hold onto them through their clothing. But Officer Muziol stopped. defendant if he had any ID. He asked the They

The defendant stated, No, at

which time Officer Muziol asked the defendant where he was heading. He said he was heading to his girl's house. And

at this whole time I am in the passenger seat of the vehicle, and I was leaning down, just listening to the conversation. Q. A. Q. A. Had Officer Muziol asked the defendant to stop? No. What exactly did he say? Just said, Can I talk to you for a second? The

defendant stopped. THE COURT: Officer -- that's fine. Continue.

I will leave it there. THE WITNESS:

Said, May I talk to you for a Officer Muziol said, Do you

Defendant stopped.

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Rinehart - direct 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 have any identification? BY MR. MARTYNIAK: Q. A. After he says no, what happened? Officer Muziol asked him, Where are you heading? He He said no.

said, I am heading to my girl's house. pause.

There was a brief

Officer Muziol said, I think, if I recall correctly, And

Officer Muziol again asked, Where is your girl's house? the defendant's response was again, I am heading to my girl's house. Q. A. Q. In which direction was he headed? Southbound. And what was Officer Muziol's response to that

particular encounter? A. Officer Muziol, after asking the question a couple

times, getting the same response, asked the defendant to come place his hands on the hood of the car so we could further identify him, because at that point we were both kind of like, we didn't know what was going on, why he kept giving us the same answer to different questions. Q. During that period did you notice anything peculiar

about the defendant? A. I noticed that, through my training and experience, I

noticed that he would not turn his right side towards my patrol vehicle. He constantly kept his right side pointing

towards the park, or his right side toward the park, left

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Rinehart - direct 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 side towards us. Also, as he pointed south with his left hand, when he put his left hand back down, again I could only see from probably about waistline down, maybe because I am in the passenger seat of the vehicle, I noticed that his left hand was shaking and he appeared to be a little nervous. Q. A. Did you say anything to Officer Muziol about that? When I saw his left hand shaking, it heightened my, I

guess you could say my suspicion as to what was going on. And I whispered to Bart, Tell this guy to put his hands on the hood. Q. A. Did Officer Muziol do that? Yes. Officer Muziol said, you know, Why don't you

come put your hands on the hood so we can talk to you a little bit. That's when the defendant, he took about two

steps towards the hood, and then turned around and started running. Q. Did you or Officer Muziol make any action prior to

the defendant running? A. Yeah. It was either one of us, I can't recall which

one of us, one of us clicked our door to get out of the car, to step out and talk to the defendant, you know, on the street. Q. A. And that's when he started to run.

Do you recall what the defendant was wearing? I believe it was a black hoodie and blue jeans, if I

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Rinehart - direct 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 recall correctly. Yes. MR. MARTYNIAK: THE COURT: BY MR. MARTYNIAK: Q. On that map that I have handed you earlier, can you If I can have one moment?

Sure.

see where the streetlights that you indicated earlier are on that map? A. I can't tell from looking at the streetlights or the

support beams for the fence that goes along the park, it appears to be, there is telephone poles up that block, I believe with lights on them. Q. If you can't tell, that's fine. After the defendant began to run, which direction did he run? A. Q. Southbound, towards Sixth Street. And what happened? What did you or Officer Muziol do

after that? A. Officer Muziol put the patrol vehicle in reverse, And

activated the overhead lights, the emergency equipment. as he was driving in reverse, I was turned around in the passenger seat looking out the back window to try to maintain sight of him. Q. A. Were you able to maintain sight of him? I was.

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Rinehart - direct 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 Q. A. radio. Were you saying anything? I was actually speaking to our dispatch center on the And I was advising them that we had a subject

fleeing from us on foot and that he appeared to be in possession of a weapon. Q. A. Q. A. Q. Did you ever lose eye contact with the defendant? No. Or visual contact, I should say? No, I did not. Can you describe the path of travel that the defendant

took as he fled? A. He ran southbound on Madison Street, crossed over

Sixth Street and into the rear parking lot -- after running a short distance on Sixth Street westbound, he went into the rear parking lot behind the William Hicks Anderson Community Center, and attempted to scale a fence in the rear lot there. Q. A. Q. A. Q. What type of fence was this? A chain-link fence. How high was it? Maybe six foot. And could you just describe, I suppose, what that How was the fence laid out?

fence encompassed? A.

The fence encompasses, I would call it a courtyard, They have a

behind the Williams Hicks Anderson Center.

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Rinehart - direct 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 delivery area back there where they take their deliveries in. There is a sidewalk that runs up to the back of the Then there is the grass. That fence encompasses

building.

that, about midway down the building off of Madison Street, all the way down the Sixth Street side to the parking lot, and into the rear parking lot, and then back to the building again. Q. It comes as like a courtyard. If you were to climb that fence from where the

defendant was located at and end up on the other side, would you be in an enclosed area? A. Q. Yes. So once the defendant gets to this particular fence,

did he attempt to scale it? A. Q. A. Yes. What happens after that? After he attempted to scale the fence, he got maybe

two hands up -- both his hands on the fence, and then got back down. At that point Officer Muziol and I were about When he went up on the I

parallel to him in the rear lot.

fence, it gave me enough time to get out of the car.

exited the vehicle, went around the back of the car, at which time the defendant turned around and started running northbound through the back lot. And that's where I saw

what I believed to be the firearm fall. THE COURT: He ran which way? I am sorry.

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Rinehart - direct 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 approach. THE COURT: BY MR. MARTYNIAK: Q. If you could describe again where the police vehicle Sure. Honor. THE COURT: No. THE WITNESS: He spun around, Your Honor, and

ran northbound in the rear lot. BY MR. MARTYNIAK: Q. A. Q. A. Q. Is that back towards Sixth Street? Correct. Back towards Sixth Street.

You indicated you exited the car? I did. Where on that map was the police vehicle located when

you exited the car? A. We were about -- we were right about midway between

Sixth Street and the larger building on the map. I don't know if you have the map or not, Your

Do you have an extra copy of the map? MR. MARTYNIAK: I do, Your Honor. If I may

was located when the defendant attempted to scale the fence? A. We were approximately, if you look at the larger

building on the map, Your Honor, it says Wilmington on there, we were approximately midway between Sixth Street and that larger building in that back lot there where the cars

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Rinehart - direct 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 are parked. Q. You indicated the defendant then fled north back

towards Sixth Street? A. Q. A. Correct. Can you describe your chase of the defendant? Once I exited the patrol vehicle, as soon as I exited I was running While

the vehicle, the defendant started running. at an angle towards him.

He started running north.

he was running, about two steps after he got down off the fence, I saw what I believed to be a firearm fall from his right side. He ran. I started giving him verbal commands.

He continued to run, after what I thought was the firearm fall, he continued to run to the corner of Sixth and that rear lot, where, after my second or third verbal command, he laid down on the ground. Q. How far from where the gun fell from the defendant did

the defendant run before he went to the ground? A. Q. A. About five yards. Five yards is what I report.

Did you then -- what did you do then? Attempted to place him into custody. He refused to

give up his hands right away. of the head.

I gave him a stun blow, back

And my partner and I were able to gain control

of his hands after my partner put his knee on the defendant's back.

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Rinehart - direct 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 Q. From what you could tell, was the defendant injured in

that encounter? A. Q. A. Q. No. Were you injured? No. Did you ask the defendant if he wanted to go to the

hospital? A. Q. Yes. He declined.

Can I assume that the defendant was then taken into

custody? A. Q. Yes. And did you respond back to the area where you thought

you saw a firearm fall from the defendant? A. Q. A. Yes, we did. What did you find? We located a black in color Model 19 Glock

semiautomatic handgun. Q. Could you describe for the Judge where that was

located? A. It was located -- let me refresh my memory, sorry. MS. BRADFORD: refresh his recollection. THE WITNESS: from that evening. Listed on the sidewalk right down, right about I'm sorry. I am using my report If I may ask what he is using to

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Rinehart - direct 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 A. maybe two yards from where the subject, or the defendant had jumped off the fence, it was on the sidewalk in the rear of the William Hicks Anderson Community Center. THE COURT: Mr. Martyniak, perhaps you can have

him mark on the exhibit where he discovered the gun. MR. MARTYNIAK: BY MR. MARTYNIAK: Q. If you could mark where the gun was located, and if Yes, Your Honor.

you could, also, where the defendant went to the ground at. Could you describe the condition of the firearm? It was, looked, appeared to be in perfect condition, It contained 12 hollow point

perfect working order.

nine-millimeter rounds, all of which were in the magazine. None of those were racked into the chamber of the gun. It was free of any debris. trash in that immediate area. There wasn't any

There wasn't any other items

in that immediate area other than the firearm. Q. A. Q. Were there any other people in that immediate area? No. There was no other persons in that area at all.

Were there any other people located in the area during

the chase of the defendant? A. Q. Not that I saw. Do you recall if any other contraband was located from

the defendant? A. Yes.

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Rinehart - direct 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this point. THE COURT: Ms. Bradford. Actually, Your Honor, if I could Q. A. Q. What was that? About a gram of crack cocaine. And can you describe for the Judge how that was

located? A. We were processing the defendant at turnkey, or at the

jail cell, whereupon he clearly stated to me that he had approximately a gram of crack cocaine in his pocket. Q. Are you positive that the firearm fell from the

defendant's possession prior to him submitting to your command? A. I am. MR. MARTYNIAK: I have no further questions at

MR. MARTYNIAK: submit that, the map, as -THE COURT:

I would like Ms. Bradford to see it Why

first, and then I would like to take a look at it. don't you get it from the witness, Mr. Martyniak. Why don't I take a look at it. it to Ms. Bradford. examination. Thank you, Officer.

We can then give

She may want to use it during her

Officer, if you could, for the record, indicate where you recovered the gun, use a G.

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Rinehart - direct 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 MS. BRADFORD: Q. A. Q. Good morning, Officer Rinehart. Good morning, ma'am. Officer Rinehart, you used today to refresh your Correct? verbally. THE WITNESS: adjacent to the fence. The gun was on the sidewalk, right THE WITNESS: it's about right there. the ground. THE COURT: Describe where the G is on the map That's what this is, right there, This is where the defendant laid to

If you come down off the fence,

there is a very small strip of grass, and there is a sidewalk, and then that sidewalk turns directly into the parking lot. The gun was actually laying on the sidewalk. THE COURT: Ms. Bradford? Thank you.

MS. BRADFORD:

CROSS-EXAMINATION

recollection in testifying your police report. A. Q. That's correct.

Is there anything else you used to prepare yourself

for your testimony today? A. Q. No. Just my police report.

Did you take any handwritten notes at the time of this

incident? A. No, ma'am.

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Rinehart - cross 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 Q. In fact, you referred to a police dispatch that you, Correct?

yourself, made. A. Q. was -A.

Yes, just a communications center. Was that ever obtained or did you ever know if that

That is in the process of being -- it's very hard, But

actually, to get a tape of what we say over the radio. I am working on getting that. Q. Very well.

Officer, on this day in question, I would say on January 8, 2008, you were on regular patrol. A. Q. A. Q. Yes. Routine patrol? Yes. In fact, your routine patrol leads you to patrol the Correct?

area of North Madison Street, I guess 600 North Madison Street. A. Is that correct?

Yes, 600 block of Madison as well as all the

surrounding areas. Q. It's fair to say that, in your police report, as in

your testimony today, that you did not get a radio call from any other resident in that area complaining of a person matching Mr. Smith's description. A. Q. No, we did not. And, in fact, this is a residential area. Correct? Correct?

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Rinehart - cross 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 A. Q. It is. So there are residents who live in the area who would

call you if they had some kind of incident that they wanted you for investigation? A. Q. Correct. On this day in question, when you got to the area on Correct?

routine patrol, you say you encountered Mr. Smith. A. Q. I did.

And he was, in fact, the only person on the street at Correct?

that time. A. Q.

He was the only person that we saw in that area. And you said based on your, I guess, instructions to

make your presence known, you decide to have an encounter with Mr. Smith? A. Q. A. Q. Correct. Upon seeing him. Correct. And not because you saw him doing anything, but Correct?

basically because you were instructed to make your presence known? A. Yes. Our Lieutenant's exact words were to stop and

identify people. Q. A. Stop and identify people? Find out who they were, find out where they are going,

what they're doing outside.

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Rinehart - cross 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 Q. A. Q. Or at least ask them? Correct. Ask them.

Once you do that, once you see Mr. Smith, you see him Correct?

walking -- and you say it's January. A. Q. was. Yes.

And you made a specific reference to what the weather Is that your estimated guess? Or did you have Or

something that told you the exact weather at the time? you are guessing that it would be 45 degrees? A.

The 45 degrees, I believe, if I recall correctly, was I always have

off of the WeatherChannel.com, weather.com.

that up in the car, just to watch if rain is coming into the area or anything like that. Q. On this night, at 2:00 in the morning, there was no

rain, you noted that on your WeatherChannel.com that it was 45 degrees? A. Correct. That's where the 45 degrees came from. As

far as the clear skies and calm winds, that was my personal observation. THE COURT: Not that it matters a great deal, You just said 2:00. Is it 2:00

it's early in the morning. or 3:00? THE WITNESS: MS. BRADFORD: BY MS. BRADFORD:

We stopped him at 3:13. I apologize.

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Rinehart - cross 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 stopped. A. Q. A. Q. 3:00. My mistake. And when you saw Mr. Smith you said he had his hands in his pocket and he was just walking? A. Q. A. Correct. You asked him what his name was first? Actually, my partner asked him if he had any

identification. Q. A. Your partner didn't ask him what his name was? No. As far as I know my partner asked him, Do you

have any identification? Q. A. Q. A. And at that point -- to which he replied no? Correct. And actually kept walking. Not to my knowledge. Correct?

When Officer Muziol asked him,

Do you have any identification, he stopped, turned to our car, at least to a 45 to our car, and said no. Officer Muziol said, Where are you heading? the conversation -Q. Let me finish asking you the question on that. I And then

And that's when

apologize. Once you asked him if he had identification, he Correct?

Correct. How far are you from him at this point? A foot to two foot, because we had to pull in front of

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Rinehart - cross 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 stopped? THE WITNESS: remained stopped. BY MS. BRADFORD: Correct. In my judgment, he had the center of the roadway over against the curb. Q. A. Q. So you can clearly see him? Correct. At that point, as you indicated in your police report

and as you testified to on direct, you didn't notice anything that would cause you to believe that he had a weapon. A. Q. Correct?

That is correct. Now, once he says no, he then continues to walk.

Correct? A. Q. A. it. It wasn't a walk. He didn't -- he took maybe a step? It was a sidestep. I don't even know how to describe

It was a very small kind of, away from our car

(indicating). Q. For description purposes, he pretty much remained in

that same area? A. Q. A. Yes. While you were questioning him? Yes. THE COURT: In your judgment, he had remained

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Rinehart - cross 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 Muziol. Q. The question from your officer then was where are you Correct?

headed. A. Q. A. Q. A. Q. A. Q.

That's correct. To which he replied, To my girl's house? To my girl's house. At that point, does he then continue to walk? No. He stays? Correct. And he is staying basically because your officer is

still questioning him? A. Bart was still, said, Where's your girl's house or I can't

something about, Where are you coming from?

remember what Bart's next words were, because I was paying attention to where his hands were and on our personal safety while Bart was engaged in a conversation with him. THE COURT: THE WITNESS: Bart is Officer Muziol? I am sorry. That is Officer

I am sorry, Your Honor.

BY MS. BRADFORD: Q. At that time, Officer Muziol then asked him again

where his girl lived, to which -- I don't know if you heard or not, do you know if the defendant replied, On Fifth Street? A. No. I didn't hear that.

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Rinehart - cross 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 confused. officer. Muziol. THE COURT: You referred to his partner as your Q. A. Q. You didn't hear that? I don't recall that. Once that encounter is over, where your fellow officer

is asking where he is headed and he replies, you then, you, yourself, or your officer then tells him to get over to your vehicle? THE COURT: When you say your officer, you are

talking about Officer Muziol? MS. BRADFORD: I asked him was it he or Officer

I am not sure what you mean.

BY MS. BRADFORD: Q. A. Your partner. Officer Muziol -MR. MARTYNIAK: Your Honor, before he answers, I I think it was I don't believe

would object to the form of the question. you told him to get over to your vehicle. that was the officer's testimony. THE COURT:

It's cross-examination.

The officer

is well able to correct her if necessary. MR. MARTYNIAK: MS. BRADFORD: THE WITNESS: Yes, Your Honor. Thank you. I am sorry. I am a little

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Rinehart - cross 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 Officer Muziol asked him to step over and place his hands on the hood so we could speak with him further. BY MS. BRADFORD: Q. So you personally heard Officer Muziol tell him to

come over to the vehicle? A. Q. A. Q. A. Q. A. I did. And place his hands on the top of the vehicle? Correct, on the hood. On the hood of the vehicle? Correct. This was all to ascertain identification? To ascertain his identification and conduct further

identification checks, to see where he was heading, because his answers to what Officer Muziol was asking and his overall body language for me was enough to have him stopped and put his hands on the hood of the car. Q. was? A. Q. Correct. And at that point, you say the defendant begins to So it was to obtain his identification to see who he

walk towards the vehicle? A. Q. He took two steps towards the car. And as he is doing that, you are exiting your car? Or

are you already out of your vehicle? A. We are in our vehicle until he takes his first step to

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Rinehart - cross 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 the hood. When he takes his first step to the hood, it was

either one of us or both of us simultaneously, opening our -- pulling the latch on the inside of the door to get out of the car. Once that clicking noise, and my door kicked maybe a quarter of the way opened, the defendant turned and began running. Q. A. Q. A. Q. You are in your full uniform at this point. Yes. With guns on your holsters? Correct. Once he begins running, he runs, I believe you Correct?

indicated on your map, which is Government Exhibit 1, southbound on Sixth Street? A. Q. Correct. And you take a turn, would that be westbound -- I am Would that be

sorry, southbound on Madison Street. westbound on Sixth Street? A. Q. Yes.

Now, once he gets there, your partner has to drive his

vehicle in reverse? A. Q. Correct. And you are saying you are looking through your back

window? A. I am turned like this in the car (indicating).

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Rinehart - cross 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 Q. Indicating for the record body facing frontward, head

turned towards the back. A. I am setting just like this in the car. I got my hand

resting about against the dash, and I'm holding myself like this, looking out the back window of the vehicle, observing him run south on Madison. And as we were catching up to him

I was following him up to the car -Q. Officer, I am sorry. I just wanted to know that

particular point. your vehicle? A. Q. Correct.

You said you were looking out the back of

Once he runs, you and your partner have to get back Correct?

into the vehicle. A. Q. No.

We never got out of the car.

How long of a time period would you say it took you to

follow and chase Mr. Smith once he started to run? A. We were parallel with him by the time he got to the

corner of Sixth and Madison. Q. And when you were parallel with him, you say you are

on your dispatch radio and you said to your, I guess, fellow officers that you had -- you were chasing a suspect. Correct? A. Yes. When we got parallel to him, Officer Muziol

turned the vehicle, if this is the defendant, Officer Muziol turned the vehicle up Sixth Street like this so that now the

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Rinehart - cross 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 Q. front of our vehicle was facing the defendant as he crossed Sixth Street and began running westbound on Sixth. we are looking at him out our front windshield. Q. Okay. Once you said that you radioed to your So now

dispatch -A. Q. A. Q. That's correct. -- that you were chasing a suspect. Yes. Now, you said you used your police report to refresh Correct?

your recollection? A. Q. Correct. Did you notice or did you not notice anywhere in this

police report that it has the particular part where you radioed to dispatch the person you are chasing and your reasons why? A. Let me check. (Pause.) I don't see it in here. Did you write that on any contemporaneous notes that

you made this call and the reasons why? A. Q. A. Q. A. No. This is from your memory of January 8th? It is. Of 2008? It is.

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Rinehart - cross 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 Q. A. Since that date, how many arrests have you made? I don't know, not offhand. I couldn't tell you

offhand the exact number. Q. A. Q. Hundreds? No, not hundreds. Maybe 25. Maybe 25. And how many times would you

All right.

have radioed to dispatch in those 25 arrests, would you know? A. Between my partner and I, maybe ten or 15 times?

That's just an approximate amount. Q. A. Q. That's okay. I never tallied it up. Once you get, I guess, parallel with Mr. Smith, you

are now, your vehicle would be entering into the parking lot behind the rec center. A. Q. Correct. I am calling the rec center that building in which you Correct?

said the fence encompasses? A. Q. Yes. The William Hicks Anderson Community Center.

When you are in that parking lot, you say Mr. Smith

then tries to scale that exact fence? A. Q. A. Q. Correct. And that fence is about six feet high? Approximately six feet, yes. And you see him -- how far away from him are you at

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Rinehart - cross 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 this time? A. Where is the map? THE COURT: BY MS. BRADFORD: Q. A. Just give me an approximation. It's approximately the sidewalk, and then a car's You can use mine.

length, because there were a couple of parked cars further down. We hadn't turned into the parking area -- there is

parking spots, and then there is a driveway, then there is parking spots on the other side of that rear lot. We hadn't

turned off of that driveway into like a parking spot. Officer Muziol was still in the driveway area of the parking lot, in case the subject continued to run southbound. Q. A. Q. A. Q. Would you say about three feet, five feet? I'd say more like ten. You were about ten feet away? Ten feet. At the time that you are ten feet away from him, you

say you see him scaling the fence using both hands? A. Q. A. Q. Correct. And you don't see anything in his hands? No, not at the time. In fact, he is not touching any part of his body? He

is actually using both hands to hang onto the fence? A. That's correct.

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Rinehart - cross 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 Q. Now, Mr. Martyniak asked you, if you were to climb Correct?

into the fence, they would be in an enclosed area. A. Q. Yeah.

And looking at the map, Government's Exhibit 1, you

would agree with me that this parking lot is an open-ended area. A. Q. Correct? The parking lot is an open area, yes. And there is actually a park right across the street.

Correct? A. Q. Correct. And there is streets and sidewalks and all kinds of Correct?

different things. A. Q. Correct.

In fact, there are houses where there are small Correct?

alleyways off the parking lot area. A. Yes.

I don't know about alleyways, but those houses

face out onto the 500 block of Monroe. Q. But there are small alleyways in between each house. This is your patrol area. Correct?

Isn't that correct? A. I believe so.

I believe that they have alleyways that

run from the front to the back in order for them to get their trash dumpsters in and out. Q. Once he attempts to scale that fence, you say that is

a failed attempt, he kind of just falls back down? A. Correct.

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Rinehart - cross 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 body. area. Q. And at this time you don't see anything in his hands

or him clutching onto his waistband or anything? A. Q. A. Q. A. Q. A. Not at that time. And you say he runs about maybe two feet. Yes. And you say you see a dark object fall? Correct. Where, in fact, did that dark object fall from? It appeared to fall from his right, his right side. Correct?

The best that I could get, like his right pants area. I couldn't tell you exactly where it fell from But it definitely fell from his right side pants

It wasn't from like up around his collar or anything.

It was from the right side pants area. Q. leg? of? A. Q. A. Q. A. Q. I just saw it fall from his right side pant leg area. Which means towards the ankle or towards the waist? I'd say more towards like the waist area. Like it just kind of dropped out of the waist area? Correct. At this point your best description of that would be a Did you see it come like down from out of his pant Could you describe exactly where you saw it come out

dark object? A. Dark object.

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Rinehart - cross 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 Q. A. Q. yards? A. About five yards. I was -- let me back up for a I was out You say you exit your vehicle at this time. I did. And you maybe chase him about a yard or two, or five Correct?

second, if I can.

I just picked up on something.

of the car already when I saw this item fall. down off the fence, I exited the car.

When he came

When I was coming at

an angle to him on foot is when I saw the item fall. THE COURT: I wanted to clear that up, because I

thought I heard you say on direct that you saw the item fall when he came off the fence. THE WITNESS: he lands, turns. When did you see the item fall?

When he comes down off the fence, As I exit the

I start exiting the car.

car, I started running at an angle. rear parking lot. the sidewalk.

He is running up the

I am running from the parking lot into

About two feet after he gets down off the

fence and he started running is when I see the item fall. Then we continue to run a short distance. ground. BY MS. BRADFORD: Q. You say fall. You didn't see him physically take his He drops to the

hands and throw anything? A. Q. No. Or discard anything?

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Rinehart - cross 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 A. Q. No, I didn't. Now, you said, after we have gotten through where you

saw it fall, you say you chased him about another five yards? A. Q. A. Q. A. Q. him? A. Q. A. I grab his -Are you using your notes to refresh your recollection? I am. I am using my notes to refresh my recollection. Yes. I attempted to place him into custody. I Correct. And he willfully submitted. Yes. By laying on the ground? Correct. Once he lays on the ground, you then get on top of Correct?

got down, I think I had one knee up on his back and I was trying to get hold of his right arm. Q. A. Q. This was after he willfully submitted. Correct. You said once you are on top of him, you say you are Correct?

struggling with him to submit further? A. His left arm was under his body. I kept saying, bring

out your arms, bring out your arms. arms. Stun blow.

He didn't bring out his

Officer Muziol came over, put his knee

down onto his back.

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Rinehart - cross 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 Q. I want to make sure. I am going -- we are going to go

through it.

I wanted to go sequentially. Once you are struggling with him to submit

further, did you notice that he urinated on himself? A. Q. A. Q. No. You never noticed that? No. Did you ever make reference that you weren't going to

go into his pockets because he was all wet? A. Q. Not that I recall. At the station did you ever make a reference of him

urinating on himself at the time that he was on the ground? A. Q. A. Q. No. Not that you recall? Not that I recall. You said you had to deliver a stun blow. Can you

describe that? A. It is a technique that we are taught in the academy to

loosen -- it's the palm of your hand, strike a muscle in the body, it's supposed to, like, they taught us in the academy, like the back of the head, strike the back of the head, it stuns, they lose -- it kind of knocks the wind out of you for a second. Q. That way you are able to gain control.

Indicating for the record you used your palm of the,

the palm of your hand?

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Rinehart - cross 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 A. Q. Yes. And pushed -THE COURT: BY MS. BRADFORD: Q. A. Q. A. Q. A. The heel of your hand? Yes. And made contact with the back of Mr. Smith's head? Correct. And at this time your partner is on top of him, also? My partner was on top. My partner put his knee on the That would be the heel.

center of the defendant's back. Q. Now, once you are able to get him restrained -Less than a minute?

actually, how long does that take? A. Q. A. Q. Maybe a minute? Maybe a minute? If that.

Once you are able to get him restrained, you say you Correct?

lift him up. A. Q. A. Q.

Correct. And you walk him to your patrol vehicle? Correct. Before you put him in your patrol vehicle, do you pat

him down or search him for any further weapons? A. I believe Officer Muziol did. I don't recall patting

him down before I put him in the car.

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Rinehart - cross 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 Q. Once that was done, you didn't feel or find the bag of

crack cocaine? A. Q. Not at that time. And that would have been located later in his pants

pocket? A. Q. Correct. And you put him in your vehicle. You take him to the

station? A. Q. Correct. How long is it that he is in the station until you say

that he voluntarily tells you that he has crack cocaine? A. Q. A. Five minutes, maybe. He is in the station. No. He is in the cell. Correct?

He is not in the cell.

We have to process them. We take

We have to go through all their pants pockets.

their shoelaces, their belt if they wear one, any hats, items like that. Q. Can I ask you a question on that. Once he gets into

the station, you take him to be processed, you describe processing as searching him, going through his pants pockets, taking any of his items, I guess to write an inventory of what he has? A. Q. Correct. And in doing that, you did not find the crack cocaine

in his pockets?

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Rinehart - cross 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 A. No. Before I started that process, I have something I

do to everybody I bring in, I ask them if there is anything else they need to tell me about. Q. Upon your asking him if there is anything else that he

needs to tell you about, that's when he answers, I have crack cocaine in my pocket? A. Q. Yes, I got a couple bags of crack in my pocket. This is while he is in the station, I believe he is

handcuffed? A. Q. A. Correct. Did you yourself refuse to go into his pockets? I don't recall. I bring so many people into the back,

I can't recall if I refused to go in his pockets or not. Q. Now, you say he takes the crack out of his pockets and

gives it to you? A. Q. I don't remember. You can't remember. After all of that happens, you

then attempt to Mirandize him and ask him to make a statement. A. Q. A. Correct?

Correct. To which he replies he does not want to? Correct. MS. BRADFORD: THE COURT: No further questions, Your Honor.

Any redirect? Briefly, Your Honor.

MR. MARTYNIAK:

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Rinehart - redirect 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. MARTYNIAK: Q. How would you describe the encounter between Officer REDIRECT EXAMINATION

Muziol and the defendant prior to Officer Muziol asking the defendant to place his hands on the hood of the vehicle? MS. BRADFORD: THE COURT: the encounter. Objection, Your Honor.

It is vague, how would you describe I am not

You can ask a specific question.

sure what point this goes to relative to her cross-examination. BY MR. MARTYNIAK: Q. Would describe the encounter as consensual? MS. BRADFORD: THE COURT: BY MR. MARTYNIAK: Q. Did you notice anything in particular about the I am going to object, Your Honor. But go ahead.

Sustained.

defendant's body language while he was running prior to his attempting to scale the fence? MS. BRADFORD: THE COURT: Objection, Your Honor.

Sustained. I don't understand why it is an

MR. MARTYNIAK: objectionable question. THE COURT:

You went over this on direct exam. I heard the officer's

I don't need to hear it again. testimony.

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Rinehart - redirect 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 schedule. THE COURT: Hold on just a second. pattern. motion? MR. MARTYNIAK: THE COURT: I would ask the map be admitted. excused. (Witness excused.) THE COURT: Do you have another witness? No, Your Honor. The government rests on the MR. MARTYNIAK: no further questions. THE COURT: Officer, thank you. You are Very well, Your Honor. I have

MR. MARTYNIAK: THE COURT:

Fine.

Any objection? No objection.

MS. BRADFORD: THE COURT:

Government 1 is admitted.

(Government Exhibit No. 1 received in evidence.) MS. BRADFORD: THE COURT: The defense rests, Your Honor. Interesting fact

Okay, counsel.

I want to give the government and the defense an You can advise your

opportunity to brief the issues.

partner he can come back in, Officer. What I would like to get right now from you is some thought as to the timing of your submissions. MS. BRADFORD: Your Honor, we are at the Court's

My law clerk is reminding me we have a trial

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date coming up, I believe, in this case. THE COURT: July 9th. We will need to move the

briefing along, so that, if necessary, I can convene argument and/or issue a ruling, hear argument and then issue a ruling, but in any event, issue a ruling of some type. So, counsel, tell me what you want to propose. MS. BRADFORD: at least 30 days. THE COURT: To complete the process? Yes, Your Honor. Your Honor, I think we would need

MS. BRADFORD: THE COURT: June.

That would put us at the end of I don't want to move

We have a July 9 trial date.

the trial date. either.

I am sure Mr. Smith does not want it moved,

This is my assumption. anything.

I am not implying

I suspect that much is going to turn on the

resolution of this motion. MS. BRADFORD: THE COURT: Absolutely, Your Honor.

Ms. Bradford and Mr. Martyniak, do

you have any trials looming in the next two weeks? MS. BRADFORD: MR. MARTYNIAK: Your Honor. I do not. I have plenty of trials looming,

If I may inquire, I did not bring my calendar,

as to the scheduling conference date. THE COURT: I don't know. You mean the pretrial

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conference date? MR. MARTYNIAK: THE COURT: offer this observation. Yes, Your Honor. I am sorry.

While we are doing that, I would It seems to me that both parties'

attention is going to be drawn to the Hodari D case on some level. I think that's an issue that has to be, that case,

that holding, the holding in it, Justice Scalia's holding is one that needs to be reckoned with. I would suggest that the facts of this case may present the question that was not answered in Hodari D. The

specific question, I will read from the opinion, the Justice wrote that, The narrow question before us is whether, with respect to a show of authority as with respect to application of physical force, a seizure occurs even though the subject does not yield. We hold that it does not.

Does the government have a position as to whether a seizure has occurred in this case? MR. MARTYNIAK: The government's position would

be that a seizure has not occurred until he submits to the authority, in this particular case when he voluntarily falls to the ground, which is after the weapon falls from his person. THE COURT: anticipated. That is sort of what I would have

You may have a chance to argue this further.

Did he not submit to authority when summoned by Officer

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Rinehart?

Actually, I believe it was Officer Muziol who

summoned him. MR. MARTYNIAK: I suppose, with the

understanding that further briefing is allowed, the government's argument would be that a brief momentary stop followed by flight -THE COURT: That is your characterization of it. You didn't ask him to He

The Officer hasn't characterized it. characterize it.

Nobody asked him to characterize it.

described what happened.

He described -- we don't know over It took at least more than

what period of time it happened.

seconds for this questioning to occur, I suspect. MR. MARTYNIAK: Your Honor, the government would

argue that there is no submission to any show of authority prior to the question, could you place your hands on the hood? An officer is free to engage individuals in any sort

of conversation -THE COURT: country, Mr. Martyniak. MR. MARTYNIAK: THE COURT: Understood, Your Honor. Terry is still good law in this

Do you maintain that prior to the

submission, what I am going to characterize as the submission to authority, that there was objective indicia of criminal activity afoot at the time that Mr. Smith was initially stopped? It seems to me that, if I may go on,

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that Officer Rinehart was quite candid in his testimony that he didn't see any criminal activity afoot. He was

responding to a directive from his Lieutenant. MR. MARTYNIAK: subjective intent is -THE COURT: subjective intent. I didn't ask you anything about his I am not sure that the officer's

I asked you what observations Officer

Rinehart testified to that the government can reasonably assert amounted to a Terry basis for a stop in this case. MR. MARTYNIAK: The government would argue that

there is no Terry-based stop. THE COURT: That is my point exactly. But,

again, I am going to characterize, at least for the purposes of our conversation right now, and leave myself the opportunity to decide otherwise, because I am asking for briefing, that there was a submission to authority. I think

the officer's testimony is clear that there was a submission to authority. How the Supreme Court or the Third Circuit or I may ultimately decide that question, that I think has not been answered by Hodari D, perhaps, is an open question. MR. MARTYNIAK: If I may ask, at what point does

Your Honor feel that the submission to authority occurred? THE COURT: open mind on that issue. I don't know. I am going to keep an

You should want me to have an open

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mind on that, because it would be very easy for me to conclude sitting here today were I to just shoot from the hip that the submission occurred at the time that Officer Muziol said, Can I talk to you? Can we talk to you? And the He is

in uniform, in a marked car, two officers. defendant says -- he stops.

Not only does he stop, at some

point he turns towards the officer's patrol vehicle, subsequent to further questioning. He doesn't have any identification, but he has stopped. And when he is told to put his hands on the hood, Now, he does not actually submit

he moves towards the car.

to the command to put your hands on the car because the door is open at that time. Then he moves, he runs.

So I think it can be reasonably asserted, in any event, I am sure it is going to be argued, that a submission to authority occurred prior to that time and that that takes this case out of Hodari D. the issue. MR. MARTYNIAK: THE COURT: Understood. I don't know. I haven't decided

I am trying to give counsel some

insight into the Court's thinking, at least as to what you want to address in this case. The other issue, I am curious -- Ms. Bradford, did you want to weigh in on this at all? MS. BRADFORD: Your Honor, I believe, the

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defendant's position would be exactly that, that he submitted to authority. We would start at the time that he

stopped and answered the line of questions. THE COURT: These are questions -- this is a It seems to me,

question that at least has to be briefed. there is another question.

That is, Mr. Martyniak, what is

the government's position with regard to the contraband itself, the gun? terms of art. Was it lost? Or abandoned? Those are

You might want to, both parties might want I happen to have it here. Fulani.

to -- what's the case?

It is an '04 Third Circuit opinion, I believe it's precedential. It's cited at 368 F.3d 351.

Just some preliminary thoughts that you might want to have in addressing your briefing on this case. It

seems to me the answer to that question may be dispositive as well, under the circumstances. It seems to me very

clear, the officer again was very forthright, he didn't see the gun tossed. the waistband. It fell. Okay. He said he thought it fell from Regardless of whether

Well, it fell.

it slid down the pants leg through a hole in the pocket or from the waistband. abandoned. It fell. It was not, perhaps,

I don't know.

It may not make a difference.

Again, I don't' know.

I am going to be interested in the

research that counsel do on the issue and hearing from, perhaps hearing your advocacy during oral argument.

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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 of July. seems to me. schedule.

So we need to be on a rather aggressive briefing

The trial starts the 14th. conference is the 10th.

The pretrial

So the government bears the burden here, it Have you discussed who wants to go first? MS. BRADFORD: Your Honor, if the government

could go first because they have the burden, we will respond. That's fine. THE COURT: I think that's the way it should be.

When can you get your first submission in? MR. MARTYNIAK: The government would ask for

until May 14th if possible, Your Honor. THE COURT: You mean June 14th. June 14th, I am sorry.

MR. MARTYNIAK: THE COURT:

That is a Saturday. June 13 would be good.

MR. MARTYNIAK: THE COURT:

And you would like two weeks. If we may, Your Honor. You are pressing me.

MS. BRADFORD: THE COURT:

All right.

June 27th is what day of the week? MS. WALKER: THE COURT: It is a Friday. We are getting quickly into the 4th

I will give the government an opportunity, if it

Case 1:08-cr-00008-GMS

Document 19

Filed 05/30/2008

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cares to, to file a reply by Monday, close of business Monday, the 30th. It looks like you are going to be working Thankfully, it won't be

over the weekend, Mr. Martyniak. the 4th. All right.

Anything else, counsel? Nothing from the government. No, Your Honor.

MR. MARTYNIAK: MS. BRADFORD: THE COURT: the exhibit.

The witness made some markings on

Did counsel want a copy of the original? MS. BRADFORD: THE COURT: I have it.

Ms. Walker will make each side a

copy so that you have it. Okay. We are in recess.

(Court recessed at 11:19 a.m.) MICHAEL RINEHART Direct Cross --------------------------------------------------Page 2 Page 20 Page 42 -

Redirect

Government 1

Map

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Reporter:

Kevin Maurer