1

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Criminal Case No. 91-076
Washington, D.C. April 16, 1991 10:05 a.m.


UNITED STATES OF AMERICA,
Plaintiff,

v.

DIANA NOMAD,
Defendant.


TRANSCRIPT OF TRIAL
BEFORE THE HONORABLE ROYCE C. LAMBERTH
UNITED STATES DISTRICT JUDGE

APPEARANCES:

For the Government:
OFFICE OF THE U.S. ATTORNEY
By: BRIAN M. MURTAGH, ESQ.
Assistant U.S. Attorney
555 Fourth Street, N.W.
Washington, D.C. 20001

For the Defendant:
OFFICE OF THE FEDERAL PUBLIC
DEFENDER
By: MICHAEL C. WALLACE, ESQ.
625 Indiana Ave., N.W.
Suite 550
Washington, D.C. 20004

Court Reporter:
CARRIE LUCINA GANSLE, CVR-CM
Official Court Reporter
6808 U.S. District Court
3rd & Constitution Ave., N.W.
Washington, D.C. 20001
(202) 289-6791

Pages 1 - 99

Proceedings recorded by stenomask; transcript produced from dictation.


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INDEX

DIRECT CROSS RE-DIRECT RE-CROSS
WITNESSES FOR THE GOVERNMENT

Officer Lawrence C. Romans
By Mr. Murtagh 4
By Mr. Wallace 8

Sergeant Robert Rule
ByMr. Murtagh 10
By Mr. Wallace 19

Officer Guy A. Borden
By Mr. Murtagh 26
By Mr. Wallace 36
By Mr. Murtagh 42
By Mr. Wallace 44

Joseph M. Gurrieri
By Mr. Murtagh 45
By Mr. Wallace 50
By Mr. Murtagh 63

WITNESSES FOR THE DEFENDANT

William Thomas
By Mr. Wallace 68
By Mr. Murtagh 70
By Mr. Wallace 76
By Mr. Murtagh 78

Sergeant Robert Rule
By Mr. Wallace 79
By Mr. Murtagh 83


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EVIDENCE

EXHIBIT NUMBER

MARKED RECEIVED

Government's Exhibit No. 1 12 64
Government's Exhibit No. 2 12 64
Government's Exhibit No, 3 18 64
Government's Exhibit No. 4 17 66
Government's Exhibit No. 5 28 65

Government's Exhibit No. 6 29 65
Government's Exhibit No. 7 29 65
Government's Exhibit No. 8 46 65
Government's Exhibit No. 9 49 65
Government's Exhibit No. 10 6 7


Defendant's Exhibit No. 1 24 25
Defendant's Exhibit No. 2 82 82

CLOSING ARGUMENTS

Government 84

Defendant 88

Government Rebuttal 90


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P R O C E E D I N G S

[Defendant present]

THE DEPUTY CLERK: Criminal Case No. 91-76, United States of America versus Diane Nomad. Mr. Murtagh for the government; Mr. Wallace for the defendant.

MR. MURTAGH: Good morning, Your Honor.

MR. WALLACE: Good morning, Your Honor.

THE COURT: Good morning. Is the government ready to proceed?

MR. MURTAGH: The government's ready, Your Honor.

THE COURT: Any preliminary matters from the defendant?

MR. WALLACE: No, Your Honor.

THE COURT: I take it you first dismiss Count 2?

MR. MURTAGH: Yes, Your Honor, we do.

THE COURT: Count 2 is hereby dismissed on motion of the government.

MR. MURTAGH: May it please the Court, Your Honor, the government is ready to proceed on Count 1 and would call as its first witness Officer Lawrence Romans.

THE COURT: All right.

OFFICER LAWRENCE D. ROMANS, GOVERNMENT'S WITNESS, SWORN

DIRECT EXAMINATION BY MR. MURTAGH:

Q. Good morning, sir.


5

Would you please state your full name and spell it for the reporter?

A. Larry D. Romans, R-O-M-A-N-S.

Q. All right. And where are you employed, Mr. Romans?

A. The United States Park Police, Criminal Investigations Branch, Identification Unit.

Q. And how long have you been employed in that capacity?

A. I've been with the Identification Unit for 16 years; 19 years with the Park Police.

Q. All right. Were you so employed or were you on duty on the 27th of January, 1991, in that capacity?

A. Yes, sir, I was.

Q. And where were you, please?

A. I work day work and was held over due to pending demonstrations in Lafayette Park.

Q. What was your specific assignment on that day, sir?

A. Videotape --

THE COURT: On what day?

MR. MURTAGH: The 27th of January, 1991, Your Honor.

THE COURT: All right.

THE WITNESS: Videotape the demonstrators and any subsequent possible arrests that may arise from the demonstrations.

BY MR. MURTAGH:

Q. Now could you describe for the Court, please, the type of


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equipment that you used?

A. It's the standard Panasonic half-inch VCR like you would buy for home.

Q. Okay, sir. Now what were your lighting conditions?

A. During daylight, I use the ambient light and then at night, we have an auxiliary light which you can mount on top of the camera.

Q. All right. And where does the power for the auxiliary light come from?

A. It comes from a battery pack.

Q. All right, sir.

[Government's Exhibit No. 10 marked for identification]

MR. MURTAGH: If I may approach the witness, Your Honor?

THE COURT: You may.

BY MR. MURTAGH:

Q. Officer Romans, let me show you what's been marked for identification as Government's 1 [sic] and ask you if you recognize that, sir.

A. It's a copy that I made of the videotape that I shot on the 27th of January, 1991.

Q. You say it's a copy.

Now what was it copied from, sir?

A. From the master tape.


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Q. Do you have that with you today?

A. The master tape is in the witness room.

Q. All right, sir. Does the master tape cover more than one day?

A. Yes, sir, it does.

Q. All right. Did you extract onto this copy what was recorded on the 27th of January?

A. Yes, sir, I did.

Q. Did you extract all of what was recorded on the 27th?

A. Yes, sir, I did.

Q. You didn't edit it in any way?

A. No, sir.

A. All right.

MR. WALLACE: Excuse me, Your Honor. I have no objection to this officer's credibility with respect to not bringing to court anything but an exact duplicate.

THE COURT: All right.

MR. MURTAGH: Your Honor, based on counsel's representations, we would offer Government's Exhibit 10 in evidence and ask that it be received.

THE COURT: Without objection, it's received.


MR. WALLACE: That is correct, Your Honor.

[Government's Exhibit No. 10 received into evidence]

MR. MURTAGH: Your Honor, I'm at the Court's pleasure.


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We could play it now as sort of a background. It covers not every minute of the 27th, but it's a representative sampling of what was taken.

THE COURT: I leave it to you.

MR. WALLACE: No objection.

BY MR. MURTAGH:

Q. Officer Romans, could I ask you to place the tape in the video machine and play it for the Court and counsel, please?

MR. MURTAGH: Your Honor, I may have misspoken myself. I believe I marked that as 10 for identification and 10 in evidence. It's the last exhibit, but it's the first one I'm offering, so it would be Government's 10.

THE COURT: I thought you said Government 1 at the time you handed it to him.

MR. MURTAGH: I'm sorry. I misspoke myself.

THE WITNESS: More volume, Your Honor?

THE COURT: No that’s all right.

[Government's Exhibit No. 10 was played for the Court and counsel.]

MR. MURTAGH: No further questions.

Your Honor, counsel may cross-examine.

CROSS-EXAMINATION BY MR. WALLACE:

Q. Officer Romans, my name is Mike Wallace. I represent Ms. Nomad.


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Have you had the opportunity to review this videotape prior to you coming to court today?

A. I checked my master this morning.

Q. Okay. But you've had an opportunity to see it; is that correct?

A. Yes.

Q. In your examination of that video, have you been able to find Ms. Nomad in there anywhere?

A. I haven't really looked for her in there.

Q. Okay.

A. I haven't looked for anybody in the tape really.

Q. Did you -- you made this tape yourself?

A. Yes, sir, I did.

Q. And while you were out there, if I may briefly, did you hear people talking?

A. Oh, there was people talking, cars going by, horns being honked.

Q. Okay. And then you could hear the drums beating, of course; isn't that correct?

A. Yes, sir.

MR. WALLACE: That's all the questions I have.

THE COURT: You can step down.

[Witness excused]

THE COURT: Next witness?

MR. MURTAGH: Your Honor, the government calls Sergeant Robert Rule.


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SERGEANT ROBERT RULE, GOVERNMENT'S WITNESS, SWORN

DIRECT EXAMINATION BY MR. MURTAGH: Q. Good morning.

Could you please state your full name and spell it for the reporter?

A. Sergeant Robert Rule. It's R-U-L-E.

Q. Okay. And what's your occupation, Sergeant Rule?

A. I'm employed by the United States Park Police.

Q. And how long have you been employed in that capacity?

A. Approximately 13 years.

Q. And you were so employed on January 27th, 1991?

A. Yes, I was.

Q. And on that date, what time approximately or -- let me ask you this. You were on duty on the 27th of January?

A. That's correct.

Q. When did you start your shift?

A. I was on the midnight shift, so I started work at 10:00 p.m. on the 26th and worked through until 6:00 a.m. on the 27th.

Q. All right, sir. What had your assignments, if any, been during the week of January 20th to 27th?

A. I was assigned to monitor activities and demonstrations in


11the area of the White House.

Q. Okay. Were such activities going on?

A. Yes, they were.

Q. Could you describe to the Court basically what the general nature of those activities were?

A. Yes. We had demonstrations -

MR. WALLACE: Your Honor, I would object to relevancy. The issue before the Court is what occurred on the 27th. What happened prior to that time is not relevant to these issues.

MR. MURTAGH: Your Honor -

THE COURT: I must have misunderstood his testimony, too. I thought he came on duty at 10:00 p.m. on the 26th and left at 6:00 a.m. on the 27th. Didn't this incident occur at 10:00 p.m. on the 27th?

MR. MURTAGH: The arrests occurred on the night of the 27th, Your Honor. Sergeant Rule -- I will offer his testimony to establish the mechanics of how the readings are taken at various times on that day, and I was also about to establish his knowledge or familiarity with the defendant -- whether he knows her or not.

THE COURT: All right. Go ahead.

MR. WALLACE: But again, Your Honor, it still wouldn't be relevant because his readings would have to be germane to the time that the offense occurred. I can understand


12 him doing background about the audiometer or the meter itself, but not on the other issues. They're not relevant.

THE COURT: I'll give you some leeway. Go ahead.

MR. MURTAGH: Yes, Your Honor. I'd just bring to the Court's attention that the information charges on the 27th of January and we would submit that we are not limited to the precise time that the arrest is made to establish the violation.

THE COURT: All right.

BY MR. MURTAGH:

Q. Sergeant Rule, are you regularly assigned to Lafayette Park?

A. Yes.

Q. Okay. And on what occasions are you so assigned?

A. Generally when there's a demonstration or a special event.

Q. Do you know the defendant in this case?

A. Yes, I've seen her.

Q. Now with respect to the 27th of January, do you know or can you recall whether or not she was present on that day?

A. I don't recall specifically on the 27th whether she was there.

Q. All right, sir.

BY MR. MURTAGH:

[Government's Exhibit Nos. 1 and 2 marked for identification]

BY MR. MURTHGH:


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Q. Now, sir, let me show you what's been marked for identification as Government's Exhibits 1 and 2 and ask you if you recognize those.

A. Yes. These are the sound decibel meters that the Park Police uses.

Q. Are they identical?

A. That's correct.

Q. Let me take back 2 if I may.

MR. MURTAGH: If I may tender this to the clerk so that the Court may have a meter to follow the officer's testimony?

BY MR. MURTAGH:

Q. Sergeant Rule, if you know, what is the unit of measurement that these sound meters -

A. Decibels.

Q. -- reflect? All right.

And is there a range of measurement in decibels?

A. Yes. They're set at 10 decibel increments starting with 60 and running to 120.

Q. Okay. Does the decibel meter measure below 60 decibels?

A. Yes. It can measure anything to 10 decibels below 60. So in this case, the meter is capable of registering as low as 50 decibels.

Q. Well, if the -- are there different settings on the meter?

A. Yes, there are. If I'm rotating this initially, you have


14 a battery check and that should go over to the red area to show that the battery is properly charged. And then from there, it goes in 10 decibel increments from 120 down to 60.

And then if it measured in here at the zero, that would indicate that it was reading 60 decibels. To the left of the zero would be less than 60 and the farthest over it goes to the left is 10 decibels. So the minimum that it would read would be 50 decibels.

Q. All right, sir. And at the 70 decibel setting, what would the range of measurement be?

A. Set at 70 decibels, it would read on the low side as low as 60 decibels and as high as 76.

Q. All right, sir. Now does this sound meter have an accuracy factor, if you know, sir?

A. Yes. According to the instructions, it's rated at plus or minus two decibels and that's at 114 decibels.

Q. All right. Now to your knowledge, sir, does the meter have more than one scale?

A. Yes. It's two scales, the A and C weighted scale.

Q. And are those indicated in some fashion on the face of the meter?

A. Yes, they are.

Q. All right.

A. By flicking this knob here to the left, you put it on the A weighted scale; to the right would be the C weighted.


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Q. All right. Now with respect to your duties on the 27th of January, 1991, what, if anything, were you required to do with respect to that meter or those meters?

A. Okay. We were asked to take hourly readings of the sound levels of the demonstrations in Lafayette Park on the south side.

Q. All right, sir. And which scale did you select, if any?

A. The A weighted scale.

Q. All right. Now did you select a particular range of on the 27th of January?

A. Yes. It was in the 70 decibel range.

Q. All right. And that would measure from what to what?

A. That would measure anything from 60 to 76.

Q. All right, sir. Now when did you commence taking your readings?

A. At 1:00 a.m.

Q. Can you describe what the lighting conditions were, to the best of your recollection, when you started taking your readings at 1:00 a.m. on the 27th of January?

A. Okay.

MR. WALLACE: I would object, Your Honor. It's not relevant. The ratings that he took are not at issue, but the ratings that some other officer took are. Therefore, it's not relevant to any of the issues what the ratings were unless it was at the period of time that Ms. Nomad was present.


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THE COURT: Well, I guess I should ask the government. Which ratings are you using to convict the defendant?

MR. MURTAGH: Your Honor, we would rely upon specifically the ratings that are taken later in the day, but I believe the question I just asked the sergeant was what the lighting conditions were and counsel objected to it.

THE COURT: I'll sustain that objection. I don't know what the lighting conditions matter. If it's not at the time she's being arrested, I don't know what it matters.

MR. MURTAGH: All right, sir.

THE COURT: I shouldn't say arrested, but the offense for which she's charged. Is that not at the time that she was arrested?

MR. MURTAGH: No, Your Honor. This is earlier in the day.

THE COURT: The offense with which you're now charging her, what time did it occur?

MR. MURTAGH: Well, she was arrested at, I believe. 10:47 in the evening.

THE COURT: You're going to show a reading at that time?

MR. MURTAGH: We're going to show readings before that time and times when we hope to show that she's present.

THE COURT: All right.

BY MR. MURTAGH:


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Q. Now what intervals did you take readings at, Sergeant?

A. Each hour.

Q. Okay. And how many did you take in total?

A. From 1:00 a.m. to 5:00 a.m. each hour.

Q. And do you recall what your readings were at 1 o'clock?

A. I don't believe I have them memorized. They're in the 70s. I do recall that.

Q. Is there anything that would refresh your recollection?

A. Yes. I did a report.

Q. All right.

[ Government 's Exhibit No. 4 marked for identification]

BY MR. MURTAGH:

Q. Sergeant Rule, let me hand you Government's Exhibit 4 for identification and ask you if you recognize this.

A. Yes. This is the report that I did the following morning.

Q. Does that refresh your recollection?

A. Yes, it does. At 1:00 a.m., the decibel reading was 72; 2:00 a.m., 70; 3:00 a.m., 74; 4:00 a.m., 76; and 5:00 a.m., 76.

Q. All right. What distance were you from -- let me strike that.

Where were the demonstrators located, to the best of your recollection?

A. Along the sidewalk on the south side of Lafayette Park.

THE COURT: On Pennsylvania Avenue?


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THE WITNESS: That's correct, Your Honor.

BY MR. MURTAGH:

Q. All right. And would it help to illustrate your testimony to refer to a map of Lafayette Park?

A. Yes.

[Government's Exhibit No. 3 marked for identification]

BY MR. MURTAGH:

Q. Sergeant, let me hand you a copy of Government's 3 for identification. Counsel has one.

With reference to Government's 3, could you describe approximately where you observed the demonstrators to be?

A. The demonstrators were along this sidewalk here on the south side of Pennsylvania Avenue -- correction -- on the north side of Pennsylvania Avenue, the south side of Lafayette Park.

Q. And where, in relation to the -- well, let's say the Jackson statue, can you relate their approximate location to that?

A. Well, they would have been south of that along the side walk here.

Q. Okay. Now what distance were you at when you took your various readings?

A. Approximately 60 feet.

Q. All right. And how did you approximate that distance?

A. I just paced it off. I have approximately a three-foot pace.


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Q. All right. How many readings did you take with respect to any of the readings that you reflected in your report? Do you understand my question?

A. I believe I do.

Q. Okay.

A. The two meters are used.

Q. All right. You used two meters.

But my question is, how many locations do you stand in and take readings before you write down a number?

Generally at least two.

Q. All right. What time did you go off duty, Sergeant Rule?

A. 6:00 a.m.

Q. Okay.

MR. MURTAGH: Thank you. No further questions. Counsel may cross-examine.

CROSS-EXAMINATION

BY MR. WALLACE:

Q. Officer Rule, my name is Michael Wallace. I represent Ms. Nomad.

You indicated that on the night that you took these particular readings, you don't know whether or not Ms. Nomad was there; is that correct?

A. That's correct.

Q. Now when you took those readings that you did take, did


20

you calibrate your machine prior to you using it?

A. Did I calibrate it?

Q. Yes, sir.

A. No, I did not.

Q. Without the calibration, do you know what the range for error was?

A. Okay. What we do is, when I go in service, I get both meters and they'd be banging away. I take those meters and take them and if they were both reading substantially the same reading, I would consider it accurate.

Q. So you don't know whether or not they were accurate; is that correct?

A. Well, I could say that the meters were in agreement.

Q. Okay. Now would you agree with me that sound does not travel in a straight line as of light; is that correct?

A. To the best of my knowledge.

Q. And as a matter of fact, sound travels in sort of a C shape to get wider as the sound disperses; is that correct?

A. That's correct.

Q. Now when you were doing your readings, can you tell us whether or not people were talking in the park?

A. I imagine they were, but I don't know for sure if they were talking.

Q. Do you know whether or not cars were passing by on the street?


21

A. No, they weren't on Pennsylvania Avenue. The times I took readings, there was no traffic. This was the early hours of the morning.

Q. There also were some generators in the park; isn't that correct?

A. That's correct.

Q. And one of the individuals, a Mr. Thomas, brought it to your attention that the generators had a decibel reading of 70 and above; is that correct?

A. Two days later, Mr. Thomas approached me.

Q. Two days later.

So in the two days prior to that, which would include the 27th, the generators would have been going at night; is that correct?

A. That’s Correct.

Q. did you adjust your meters in amy way to eliminate that noise?

A. I was not even aware that the generators were putting out a substantial amount of noise until Mr. Thomas brought it to my attention. From the south side, it's not very loud.

Q. You're talking about a not very loud sound.

Would you take your meter that you have with you right now out and turn it on, please?

What setting do you want?

Q. Okay. Set it at 60 decibels.


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Now as I ask you the next question, which will be, what is the reading at the current time, could you tell us, while I was asking you that question?

    Why don't you repeat it?

Q. Okay. What is it reading now?

A. It's at 60.

Q. At 60 decibels.

Now with that same reading that you just took with me asking those questions, could you tell us what it's reading now with the silence and point it just to the courtroom acoustics in itself?

What are you reading now?

A. Well, it's on the left side.

Q. Now you've had the opportunity to read the manual that comes with this, haven't you?

A. Yes, I have.

Q. Okay. And in that manual, it gives you readings and how to use this instrument; isn't that correct?

A. Yes, it does.

Q. And when you were measuring those sounds, you were measuring for musical instruments; isn't that correct? The drums and whatever else was going on out there; isn't that correct?

A. That's correct.

Q. Doesn't that manual tell you specifically, in order to get a reading on musical instruments, you should use the C-weiqht scale?


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A. Well, the CFR, why we use the A-weighted scale is because the CFR is specific

Q. I understand that.

A. -- to use the A-weighted scale.

Q. I understand that.

But doesn't the manual tell you, when using this instrument that you have, it tells you to use the C-weighted scale?

That's what it says to use for musical instruments, that' correct, for people who are going to do sound checks.

Q. I understand.

Do you believe that when the manufacturer designed this particular instrument that you have, that it had a particular reason in mind for using it for musical instruments?

A. My opinion of that?

MR. MURTAGH: Objection, Your Honor. Calls for a conclusion.

THE COURT: Overruled.

BY MR. WALLACE:

Q. Do you imagine that the manufacturers had a reason for doing that?

A. I would imagine.

Q. And you're not testifying in court that you have any particular or special knowledge about decibel readings, are you?


24

A. No.

Q. So with that assumption in mind, would you believe that the manufacturer decided to set C decibel ratings in order to get an accurate reading of musical instruments; is that correct?

A. I would assume so.

Q. And in that same instruction manual, it gives you some various readings on page 15 -

MR. WALLACE: If I may approach the witness, Your Honor? I'll have it marked in just a moment.

BY MR. WALLACE:

Q. Page 15, those readings.

Have you seen those before?

A. Uh-huh.

THE COURT: Was that yes?

THE WITNESS: Yes, Your Honor.

[Defendant's Exhibit No. 1 marked for identification]

BY MR. WALLACE:

Q. I'm going to show you what's been marked as Defendant's Exhibit No. 1. Would

you look at that?

Can you tell us whether or not it's an accurate representation of the user's manual that came with the meter?

Yes. It appears to be the one that I copied.

Q. Looking at page 15 in that manual, does it give you some


25

decibel readings on various things?

A. Yes, it does.

Q. And where does the first reading on that chart show of a decibel reading of 60?

A. Okay. It shows it at background music.

Q. Background music.

A. on the A-weighted scale.

Q. Okay. And that background music is what they generally talk about as like music in elevators and places like that: is that correct?

A. That’s correct.

Q. Now assuming that people were talking in the park at the time that you took these ratings, and there was some drumming, could your meter determine which was the noise, which was the musical instruments, which was traffic, or anything of that nature at all?

A. It would be measuring the overall noise.

Q. The overall noise.

MR. WALLACE: That's all the questions I have. Your Honor, at this time, I move to be admitted Defense Exhibit No. 1.

MR. MURTAGH: No objection.

THE COURT: Without objection, it's received.

[Defendant's Exhibit No. 1 received into evidence]


26

MR. WALLACE: That's all the questions I have of this witness. Your Honor.

MR. MURTAGH: Nothing further.

THE COURT: You can step down.

[Witness excused]

THE COURT: Next witness?

MR. MURTAGH: Your Honor, the government calls Sergeant Guy Borden.

SERGEANT GUY A. BORDEN, GOVERNMENT'S WITNESS, SWORN DIRECT EXAMINATION

BY MR. MURTAGH:

Q. Sergeant, please state your full name and spell it for the reporter.

A. Guy, G-U-Y, Arnold, A-R-N-O-L-D, Borden, B-O-R-D-E-N.

Q. All right. And for the record, sir, where are you employed?

A. With the United States Park Police.

Q. Okay. And how long have you been employed in that capacity?

A. For approximately 17 years.

Q. All right, sir. And were you so employed on January 27th, 1991?

A. Yes.

Q. And where were you assigned on that day, sir?

A. I was assigned in front of the White House, Lafayette Park area.


27

Q. All right. And what time did you begin your shift, if you recall?

A. Let's see. About 10:00 a.m.

Q. What was your specific assignment on that day?

A. I was assigned to, like I said, in front of the White House in Lafayette Park and I was to take meter readings, sound meter readings.

Q. All right, sir. Now in front of you, Sergeant, is, I believe, Government's Exhibit 1 for identification, and I'd ask if you recognize that.

A. Yes.

Q. What is it, please?

A. It's one of the meter readers that I had.

Q. Could you take the item out, please?

And do you recognize it?

A. Yes.

Q. All right. You say one of.

Did you have more than one?

A. Yes, I did.

Q. How many did you have?

A. Two.

Q. Were they identical?

A. Yes.

Q. Now what time did you commence to take readings, if you recall?


28

A. The first reading was at 11 o'clock.

Q. All right. And could you describe generally the activity that you observed while you were taking this first reading?

A. I observed a group of demonstrators beating on drums and similar objects.

Q. All right. Did you, in fact, take the readings?

A. Yes.

Q. Okay. Could you describe which scale, if any, you used to take the readings?

A. I used the A scale.

Q. All right, sir. Now is that true for all of the readings you took?

A. Yes.

Q. Okay. Sergeant Borden, let me show you what I will mark as Government's 5 for identification.

[Government's Exhibit No. 5 marked for identification]

BY MR. MURTAGH:

Q. Do you recognize it as an approximate layout of Lafayette Park?

A. Yes, I do.

Q. All right. Now, Sergeant Borden, with reference to Government's 5 for identification, could you indicate, by marking on government's 5, and describe for the record, the


29

approximate location of where the group of demonstrators were that you observed?

A. It would be at the bottom of the page, Pennsylvania Avenue side, midway -

Q. I wonder if I could give you a pen with a slightly finer point there, and if I could ask you to mark the location of the group of demonstrators with the letter G?

Have you done that?

A. Yes, I have.

Q. And could you describe for the record where that is?

A. It's at the bottom of the page.

Q. If I may? Sergeant Borden, would you agree that you've marked the letter G in a square area that's bounded on the south by the sidewalk on the Pennsylvania Avenue side and on the north by a portion of the elliptical path?

MR. WALLACE: May I see it?

MR. MURTAGH: Sure.

MR. WALLACE: Okay.

BY MR. MURTAGH:

Q. Now did you, in fact, prepare a report which reflected the readings that you took on the 27th?

A. Yes, I did.

[Government's Exhibit Nos. 6 and 7 marked for identification]

BY MR. MURTAGH:


30

Q. Let me show you Government's 6 and 7 for identification and ask if you recognize those.

A. Yes, I do.

Q. Okay. Now, sir, could you tell us, please, with respect to the readings that you took, the procedure that you followed?

A. Approximately early on, I went to start to take the readings by starting on the, if you use this diagram -

Q. Okay.

A. I would start on the west side and work around taking readings

Q. Okay. How many locations did you take readings from at any given hourly interval, if you understand my question?

A. Four.

Q. Okay. And do those locations correspond in any way to the points on a compass?

A. Yes, they do.

Q. All right. Could you mark on the diagram, using the fine pen, the approximate location of where you took the north, south, east, and west readings?

All right. And could I ask you to mark with the letter N. the north direction and E, the east direction, and S the south direction, and so on?

All right. Now, Sergeant Borden, when you're at any one of those locations, could you describe what you did, basically, for the Court and counsel?


31

A. Okay. I went to take the meter readings at the particular location.

Q. How many readings would you take at any one location?

A. I would take one reading.

Q. Okay. And then you'd move on to the next location?

A. Yes.

Q. Okay. Now after you'd taken four readings, what would you do with those readings?

A. I would strike out the top one and the bottom one, which would leave two, and then I would take the lesser of the two and use that one.

Q. So you would take the lesser of the two remaining readings?

A. Yes.

Q. Okay. And would that be the number that you would write down in your report?

A. Yes, it would be.

Q. Okay. And is that true with each reading you took?

A. Yes.

Q. Okay. Now you had how many meters?

A. Two.

Q. Okay. What relationships, if any, were there between the two meters as you were taking these readings? Do you understand my question?

A. I had them both together.


32

Q. Okay. And you look at the two different meters?

A. Yes.

Q. What would you do at that point?

A. I would see if they were pretty much compatible, in sync.

Q. And were they?

A. Yes, they were.

Q. Okay. Now how far, approximately, were you from the group of demonstrators when you took any of your readings?

A. I wouldn't say more than 50 feet.

Q. Okay. Now have you had a subsequent opportunity to measure the distance?

A. Yes.

Q. And how did you do that?

A. I used what is known as roller tape that we use in accident investigations.

Q. Okay. And are you familiar with that from your training?

A. Yes.

Q. Okay. Now, sir, with respect to Government's Exhibit 5 for identification, if I could draw your attention to the northeast corner of the square that you've marked the G in. Okay?

With respect to the reading that you took at the east end location, how far is that distance approximately?

It was approximately 54 feet.

Q. Okay. Now with respect to the reading that you took at


33

the northern location, how far was it from the northeast corner of the square, if you will?

A. It was approximately 74 feet.

Q. Okay, sir. Now as you were taking your readings, let me direct your attention to the late afternoon or the afternoon of January 27th, did you have occasion to observe any particular individual or individuals?

A. Yes.

Q. All right. Could you tell the Court basically what you saw?

A. I noticed one particular person -

Q. If I could ask you to keep your voice up a little bit or lean into the microphone?

A. I noticed one particular person who noticed me taking the readings.

Q. Okay. And could you explain to the Court how you noticed that the person noticed you, if you will?

A. Well, when I would go into one of the positions that's marked on this map, I would notice that this particular person and a couple other people would turn around, for example, the northern position, and look at me taking the readings.

Q. All right. What, if anything, were they doing while you were taking the readings?

A. They were beating on drums.

Q. All right. Now, sir, do you see anybody in the courtroom


34

here today that was present that you've just described with respect to this activity?

A. Yes.

Q. And who is that, please?

A. It's the lady sitting at the table.

Q. Could you describe where she's seated and what she's wearing, please?

A. She's wearing blue.

MR. MURTAGH: Your Honor, may the record reflect that the witness has identified the defendant?

THE COURT: It will.

MR. MURTAGH: Okay.

BY MR. MURTAGH:

Q. Now where, with respect to the square with the G in it, was the defendant that you've just identified?

A. Approximately the northeast corner.

Q. Could you mark on Government's 5 for identification that approximate location using the letter D for defendant?

All right. Now, Sergeant Borden, could you, with respect to Government's 6 and 7, could you tell us please what your readings were with respect to the various times indicated?

A. At 11 o'clock, it was 64 decibels; at 12:15, it was -

THE COURT: I'm sorry. I didn't hear that.

THE WITNESS: At 11 o'clock, 64 decibels; 12:15, 74; 13:07, which is 1:07 p.m., it was 74; at 1412, which is 2:12


35

hours, it was 74; at 1509, which is 3:09, it was 76; at 1613, which is 4:13, it was 74; at 1720, it's 78; and at 1806, it's 78.

BY MR. MURTAGH:

Q. Now with respect to Government's 7 for identification, could you please tell us what your readings reflected?

A. At 1917, it's 74; at 2120, it's 74; at 2222, it's 74; at 2245, it's 66; and 2255, it was 70.

Q. All right. Sergeant Borden, could you describe for the Court and counsel, please, the lighting conditions with respect to -- well, let's start with Government's 6, which would correspond roughly from 11 o'clock to 6 o'clock in the evening?

A. It was daylight.

Q. Okay. And when daylight ultimately faded, what were the lighting conditions?

A. Well, regular street lighting.

Q. Okay. Are there lights in the park?

A. I believe so.

Q. All right. Other than street lights, were you aware of any other lighting conditions?

A. No.

Q. Okay. Now, Sergeant Borden, did you ever take -- let me ask you this.

Did there ever come a time when the drummers ceased drumming?


36

A. No.

MR. MURTAGH: No further questions, Your Honor. Counsel may cross-examine.

CROSS-EXAMINATION BY MR.

WALLACE:

Q. Sergeant Borden -- is that correct?

A. That's correct.

Q. My name is Mike Wallace. I represent Ms. Nomad.

You indicated to the Court a few moments ago that you noticed that there were some drummers who made eye contact with you while you went to these various points to take these readings; is that correct?

A. That's correct.

Q. How many demonstrators or drummers were out there on that particular occasion?

A. Fifteen to 20.

Q. Can you tell me whether the person sitting on the right hand side of Ms. Nomad was a male or female?

A. No, I couldn't.

Q. Could you tell me whether or not the person sitting on the right side was a male or female?

A. No, I couldn't.

Q. Then who was the other person who turned and looked at you then if you couldn't tell whether it was a male or female?

A. I remember an American Indian was there.


37

Q. Was it a male or female American Indian?

A. It was a male. I remember a woman who was -- she was a black woman. She may have been Puerto Rican; I'm not sure. She -- I'm trying to see how I can say it -- she was slightly disoriented. I remember a couple of other people there.

Q. And when was the first time you ever saw these people?

A. That was it.

Q. That was that particular day?

A. Yes.

Q. On January the 27th, 1991?

A. Yes.

Q. And you are out there in that park every day since then; is that correct?

A. No.

Q. You have not been back since?

A. Yes, I've been back since.

Q. Well, did you see any other demonstrators on those other occasions?

A. I was there a couple days ago and there was a demonstration there taking place.

Q. Do you remember what the people looked like then?

A. They were foreign. They were not Iranians, but PLO. They were foreign people.

Q. Now on that day on the 27th, can you tell us how many black children were out there demonstrating?


38

A. I remember a black boy, approximately nine years of age.

Q. How many other black males did you see out there on that occasion?

A. I remember seeing a black gentleman, also.

Q. What time did you see him?

A. I can't recall the exact time, but I saw him during the day.

Q. And have you seen the videotape that the government has had of this demonstration?

A. Yes, I have.

Q. Is that how your memory is recollect?

A. No.

Q. You remember it independently?

A. Yes.

Q. Okay. Now when you took these readings and these people, including Ms. Nomad, turned and looked at you, what time of day was that?

A. I would say it was in the late evening. I couldn't be exact.

Q. How close to exact?

A. Between 3:00 and 6:00.

Q. Somewhere between 3:00 and 6:00.

So you're not coming in here testifying that on the night that you took these readings, that you saw Ms. Nomad turn and look at you and continue to drum, are you?


39

A. No, I'm not.

THE COURT: Was there more than one occasion that that occurred?

THE WITNESS: We noticed them, yes. After the second or third time that I went out to take the readings, it was obvious and apparent to me that the demonstrators had keyed in on what I was doing, so subsequently, when I came around to take the readings, they were keying on me.

BY MR. WALLACE:

Q. Now did you notice that there were generators out there at night as well?

A. No, I didn't notice.

Q. You never knew that?

A. I was unaware.

Q. Did you ever talk with Sergeant Rule or did anyone ever bring that to your attention?

A. No.

Q. But you're not going to deny that they were there, are you?

A. I don't know one way or the other.

Q. And you have not had a chance to talk to Sergeant Rule or anyone else about these generators?

A. I don't understand your question.

Q. Have you heard or did you know the fact that the generators that were in Lafayette Park, that were running at the same


40

time you took these readings, had a decibel reading of 60 or above? Did you know that?

MR. MURTAGH: Objection, Your Honor.

THE COURT: Overruled. You can answer if you've been told that.

THE WITNESS: At the time I took the readings, I was unaware and I had no knowledge of a generator.

BY MR. WALLACE:

Q. I understand that.

But now you've learned that; is that correct?

A. Yes.

Q. Now when you took your readings, did you take your readings on the A scale or the C scale?

A. A scale.

Q. And do you know what the difference between a C scale reading and an A scale reading is?

A. The A scale basically takes readings for average noise; whereas the C scale would take readings of sharp peaks.

Q. Of sharp pitches?

A. Peaks.

Q. Can you tell us then why the manufacturer designed that meter, particularly the one that you have, to read musical instruments on the C scale?

A. No, I can't.

Q. Did you know that?


41

A. Did I know if it could?

Q. Did you know that that's how that instrument was designed?

A. Yes.

Q. When did you learn that?

A. When I got in possession of the instrument and I was given the instructions.

Q. You were given the instruction booklet.

Then do you know what the average background noise is likes for elevator music?

A. I would presume that it would be less than 60 decibels.

Q. Would you look on page 15 of Defense Exhibit No. 1, and tell us what this says for background noise for music or more simply, what does the first reading show for 60 decibels?

A. Background music.

Q. Okay. And would you agree with me also that there were people talking in the park on that occasion?

A. There were people talking.

Q. Okay. And does that meter that you use monitor people's voices?

A. It monitors -

Q. Everything.

A. -- noise.

Q. So you don't know independently whether or not the drumming exceeded the 60 decibels or whether or not the voices plus the drumming exceeded 60 decibels, do you?


42

A. No, I don't.

MR. WALLACE: No more questions.

MR. MURTAGH: Briefly, Your Honor.

RE-DIRECT EXAMINATION BY MR. MURTAGH:

Q. Sergeant Borden, when counsel asked you on cross-examination about when you learned about the generator -- do you recall that line of cross- examination?

A. Yes.

Q. Okay. And correct me if I'm wrong, but I believe you were asked something to the effect of, did you know that there was a generator running at the time you were taking your readings.

Do you recall that question?

A. Yes.

Q. And do you recall what your answer was?

A. My answer was, no, I didn't know.

Q. And then counsel asked you on cross-examination, something to the effect that, but you've learned it now or you know it now.

Do you recall that?

A. Yes.

Q. My question, sir, is -- well, let me ask you.

Do you remember what your response was to his question, but you've learned it now?

I believe when he asked that question, I stated that I


43

didn't know at the particular time that I took the readings, but subsequently, I've learned something to that effect.

Q. Okay. Are you basing your response based on what counsel had told you, in effect, in asking the question on cross-examination?

A. You lost me.

Q. I lost you. I'm sorry. My question is -- maybe I should rephrase it.

Other than counsel telling you in cross-examination, but you've learned it now-

MR. WALLACE: Excuse me, Your Honor. I'm going to object to the form of the question. I didn't tell him anything. I asked him a question, so I object to the form of the question.

THE COURT: That's sustained. Why don't you just say, what's the first time you heard about that there might have been a generator there? Who first mentioned that to you?

THE WITNESS: I learned about a possibility of a generator today.

THE COURT: Today? All right.

BY MR. MURTAGH:

Q. All right. My question, Sergeant Rule [sic], is, of your own personal knowledge, were you aware of a generator at the time you were taking your readings?

A. No, I wasn't.


44

MR. MURTAGH: Thank you. Nothing further.

MR. WALLACE: I've just got one question, Your Honor.

RE-CROSS EXAMINATION

BY MR. WALLACE:

Q. Do you know Sergeant Rule?

A. Yes, I do.

Q. And does Sergeant Rule ever come on a shift after or before you come on or off?

A. We don't work in the same area.

Q. Same area.

Where were the flood lights at this time while all this was going on? Do you know where they were located?

A. At the time I took the readings, I was unaware of flood lights.

Q. You didn't see any flood lights either?

A. I was unaware of them.

Q. So all you did was just walk around the perimeter of the park; is that correct?

A. I walked in the area that you mentioned.

Q. But you never walked through the park or anything like that?

A. I was in the park.

Q. But you didn't see the flood lights?

A. I didn't notice any.

Q. Do you know what the normal lighting is like at the park at night?


45

A. I believe it's street lighting. I believe there are some lights there. I believe there are some lights there.

MR. WALLACE: That's all the questions I have.

THE COURT: I take it Lafayette Park is not part of your regular beat?

THE WITNESS: It's not.

THE COURT: What's your regular beat?

THE WITNESS: I work on the GW Parkway in Virginia.

THE COURT: Okay. You can step down.

[Witness excused]

THE COURT: We'll take our morning recess now.

[Recess]


THE COURT: Call your next witness.

MR. MURTAGH: Your Honor, the government calls Officer Joseph Gurrieri.

OFFICER JOSEPH M. GURRIERI, GOVERNMENT'S WITNESS, SWORN

DIRECT EXAMINATION

BY MR. MURTAGH:

Q. Officer, please state and spell your full name for the reporter.

A. Joseph M. Gurrieri, G-U-R-R-I-E-R-I.

Q. All right. And for the record, where are you employed, sir?

A. United States Park Police.


46

Q. And how long have you been a Park policeman?

A. In May, it will be four years.

Q. All right. Were you so employed on January 27th, 1991?

A. Yes.

Q. And where were you assigned?

A. Lafayette Park.

Q. Okay. And do you recall when you commenced your tour?

A. Yes, I do.

Q. And when was that?

A. Approximately 10:00 a.m.

Q. All right. And when did you get off duty?

A. Approximately 2:30, 3 o'clock, the 28th.

Q. All right. And were you continuously in the park in the interim?

A. Yes.

Q. All right. Now, sir, did there come a time when you were given a particular assignment?

A. Yes.

Q. And when was that, approximately?

A. Approximately, I'd say, at 10 o'clock in the evening.

Q. All right. And what was that assignment?

A. To give verbal warnings to the demonstrators beating drums in Lafayette Park.

Q. All right, sir.

[Government's Exhibit No. 8 marked for identification]


47

BY MR. MURTAGH:

Q. Let me show you what's been marked for identification as Government's Exhibit 8 and ask you if you recognize it.

A. Yes, I do.

Q. And what is it, please?

A. This is the verbal warning that I gave to the demonstrators.

Q. All right. And how did you give it?

A. Via the PA system in one of the police vehicles.

Q. Okay. Did you read the document?

A. Yes, I did.

Q. Okay. And how many times did you give a warning?

A. Three times.

Q. When was the first time?

A. If I may look at my notes?

The first time was at 2234 hours.

Q. Is that 10:34 –-

A. Yes.

Q. --in civilian time?

A. Yes, sir.

Q. All right. And at the time you gave that warning, did you observe anybody who you now see present in the courtroom today?

A. Yes, I do.

Q. And who is that, please?


48

A. It's the female seated next to her lawyer in the blue dress, long brown and black hair.

MR. MURTAGH: Your Honor, may the record reflect that the officer has identified the defendant?

THE COURT: It will.

MR. MURTAGH: Okay. BY MR. MURTAGH:

Q. And at that time, 2234, 10:34, what did you observe the defendant to be doing, if anything?

A. Banging a drum.

Q. All right, sir. Now you mentioned that you gave the warning three times.

A. Yes.

Q. When was the second time?

A. At 10:36 hours

Q. At 10:36 hours. Okay.

Did you do the same thing?

A. Yes, sir.

Q. All right. What, if anything -- well, let me ask you.

Did you observe the defendant at that time?

A. Yes, I did.

Q. And what, if anything, was she doing?

A. Banging the drum.

Q. All right. When was the third time you gave the warning?

A. At 10:47.


49

Q. All right. And did you observe the defendant at that time?

A. Yes, I did.

Q. And what, if anything, was she doing?

A. Banging the drum.

Q. All right. What happened next?

A. The subject was placed under arrest.

Q. All right, sir. Did you -- well, let me ask you. Excuse me a second.

[Government's Exhibit No. 9 marked for identification]

BY MR. MURTAGH:

Q. Let me show you what's been marked for identification as Government's 9 and ask you if you recognize this.

A. Yes, I do.

Q. And what is it, sir?

A. This is the drum that she was banging.

Q. And when you say she was banging –

A. The defendant.

Q. The defendant. All right.

And did you seize that -

A. Yes, I did.

Q. -- at that time? All right.

Officer Gurrieri, if you recall, at the time you're giving the warnings, what are the lighting conditions?


50

Street lighting in the area.

Q. All right, sir.

MR. MURTAGH: No further questions, Your Honor. Counsel may cross-examine.

THE COURT: All right.

CROSS-EXAMINATION BY MR. WALLACE:

Q. Sergeant -- is it Sergeant Gurrieri?

A. No. Officer.

Q. I'm sorry. Officer, you indicated that you gave the warning from the police vehicle; is that correct?

A. Yes, sir.

Q. Where were you parked?

A. Excuse me?

Q. Where were you parked at the time you gave the warning?

A. On Pennsylvania Avenue.

Q. Pennsylvania Avenue.

Where was Ms. Nomad at this particular time?

A. On the south sidewalk, approximately the middle of the park on the south sidewalk.

Q. Was she in the bunch of all the other demonstrators?

A. Yes, in a group.

Q. Did you see the video that was played that the police department took of this particular incident?

A. Yes, I have.


51

Q. And did you recognize Ms. Nomad in that group?

A. From the video? No.

Q. Then can you tell us then how you were able to see her?

A. I saw her from the vehicle, from the police vehicle.

Q. From the police vehicle.

And you were how far away?

A. I can give you an approximate.

Q. Yes, sir.

A. Thirty or 40 feet maybe.

MR. WALLACE: Your Honor, if I may play the video again, please?

MR. MURTAGH: Your Honor, we would object. The officer didn't take the video. There's no testimony that his field of vision is the same as the cameramen 's. He's testifying to what he saw from the vehicle. I don't see how the -we'd stipulate that she's not visible on the videotape.

MR. WALLACE: It goes to his credibility, Your Honor.

THE COURT: Proceed.

MR. WALLACE: Thank you, Your Honor.

I'll ask some more questions while we're rewinding, Your Honor.

BY MR. WALLACE:

Q. Did you notice a police officer there with a video camera recording all of the chain of events on that particular evening?


52

A. No, I can't say from my knowledge. I was just concentrating on the group.

Q. You were concentrating on the group.

How many other people have you now been able to recognize that were in that same immediate group?

A. Can you say the question again, please?

Q. How many other people can you readily identify that were in that particular group on that particular occasion?

A. From this room?

Q. Yes, sir.

A. I just have to say her.

Q. Okay. Did you see anybody else that you recognize since you've been here in this courthouse today?

A. Not to my knowledge.

Q. How many people did you arrest on that particular night?

A. Six, I believe.

Q. Do you remember who they all were?

A. Excuse me?

Q. Do you remember who they were?

A. I'd have to check the files. I don't know exact names right off the top of my head.

Q. Do you remember what they looked like, whether or not they were males or females?

If I go through the files, yeah.

Q. I just want you to see whether or not you can recall this.


53

Can you recall?

MR. WALLACE: I'm going to forego the video, Your Honor.

THE COURT: All right.

MR. WALLACE: I think the Court had an opportunity to see it.

BY MR. WALLACE:

Q. Were there females or males that were arrested in the six that you arrested?

A. There were males in there, too.

Q. How many were male?

A. I'd have to say five, I believe.

Q. Five males.

Were they black or white?

I would say white.

Q. How were they dressed?

A. I can't tell you the actual dress.

Q. How was Ms. Nomad dressed?

A. That particular evening?

Q. Yes, sir.

A. I couldn't tell you right off.

Q. This was at night, dark; is that correct?

A. Yes, sir.

Q. Do you remember seeing -- would you stand up for a moment, please? No, you.


54

Do you remember seeing that gentleman right there?

That gentleman there?

Q. Yes, sir.

A. He's been in the park.

Q. Did you see him that particular night that you arrested Diane Nomad?

Yes.

Q. Okay. And where was he?

A. On that south side of the park.

Q. South side of the park.

Was he standing next to Ms. Nomad or where was he?

I couldn't tell you exactly where.

Q. How many other females did you see out there on that particular night?

A. I couldn't tell you.

Q. So you kept your eye on Ms. Nomad the entire period of time?

A. I kept my eye on the group of people and she was one of the people.

Q. And she was in that group?

A. Yes, sir.

Q. The same group that was videotaped; is that correct?

MR. MURTAGH: Objection, Your Honor.

THE COURT: Overruled.

BY MR. WALLACE:


55

Q. The same group that was videotaped showing the arrests on that particular night; is that correct?

A. I can't say if they were all in there. I really don't know if they were all in the videotape.

Q. And she was sitting right there in the front of everybody else; is that correct?

A. To my knowledge, she was -- I can't place her exactly where she was exactly standing.

Q. Was she within the group there or was she separate and apart?

In the group.

Q. In the front row?

A. I can't put her exactly in the front.

Q. Was she standing or sitting?

A. To my knowledge, I believe she was sitting.

Q. She was sitting.

MR. WALLACE: I've got to have this video. May I try it one more time, Your Honor?

I guess my technical abilities have failed me again, Your Honor.

MR. MURTAGH: Your Honor, I'll stipulate that she's not visible on the tape.

THE COURT: Are you able to assist him in getting it working?

MR. MURTAGH: I had the officer do it. I'll give it


56

a try, Your Honor.

THE COURT: Has the officer departed?

MR. MURTAGH: I think he's departed. I could check.

[Pause]

MR. MURTAGH: Your Honor, I take it counsel would like to see the portion towards dark rather than the whole thing?

MR. WALLACE: Right.

[Pause]

THE COURT: The record will reflect that Officer Romans came back to the courtroom to assist us in setting up the videotape. Thank you, Officer.

[Government's Exhibit No. 10 partially played for the Court and counsel simultaneously with questions.]

BY MR. WALLACE:

Q. Were you present at 10:23 on this particular occasion?

A. Yes, sir.

Q. Were you there all along -- what time were you there?

A. On that particular day, approximately 10:00 in the morning until 2:30 or 3:00 the next morning.

Q. At 10:30, you were there at this time; is that correct?

A. Yes, sir.

Q.And you observed Ms. Nomad during this period of time?

A. Yes, sir.

Q. When was the first time you noticed Ms. Nomad?

A. I can't give you an exact time.

Q. You said you gave your first warning at what time?

A. 10:34.

MR. WALLACE: Your Honor, I'm trying to get it to 10:33.

THE COURT: You're going to pass it because I think he time on the tape, as I jotted it down, is off from his time. The first recorded warning on the tape was at 10:37.

BY MR. WALLACE:

Q. Would you agree that that lighting is pretty accurate as to what you were able to observe?

A. No. It was a little clearer than that.

Q. A little clearer?

A. Yeah.

Q. Was it more brighter or darker?

A. A little brighter.

Q. Brighter.

And you were able to recognize individual faces; is that correct?

Yes, sir.

Q. Would you agree with me that everybody from this particular angle, it appears that everybody is standing up?

Would you agree with that?

I couldn't say.

Q. Did anybody respond to you at the moment in time – did


58

anybody respond to you in the moment in time that you made the verbal warning? Did anyone respond?

A. To myself?

Q. Yes, sir.

A. Come over to me, you mean?

Q. Yes, sir.

A. No.

Q. Did you hear anybody in the crowd say anything?

A. No, not to my knowledge.

Q. Were you sitting down in your police car or were you standing up?

A. In the police car.

Q. Sitting down?

A. Yes, sir.

Q. And you saw Ms. Nomad from what distance was this?

A. Approximately 30 or 40 feet maybe.

Q. You saw her through the picket fence; is that correct?

A. There was a fence up.

Q. And was she standing or sitting?

A. I believe she was sitting.

Q. Were there other people around her?

A. Yes, sir.

Q. Were they standing or sitting?

A. I can't give you exactly what everyone was doing.

Q. At that point in time, could you tell -- make a determination


59

where the singing was coming from?

A. From where I was?

Q. Yes, sir. Where was it coming from?

A. The group of demonstrators.

Q. The group of demonstrators right directly in front of you or to your right or to your left?

A. From where I was positioned, to my right on the sidewalk.

Q. Ms. Nomad would have been -- of the pictures you could see -- to your right or would she have been to the left of the immediate section of the crowd?

I believe to the left from looking at it.

Q. So in other words, you had to look past the immediate crowd first in order to see Ms. Nomad; is that correct?

Yes.

Q. Could you recognize and see what kind of instrument she had at that time?

Yes, I could.

Q. Okay. Was that the point in time when you made the announcement; is that right?

A. That's my voice.

Q. That's your voice?

A. Yes.

Q. Is this the crowd you're talking about? Is this the crowd you're talking about?

A. Yes, that's some of the crowd.


60

Q. Would you agree with me that the majority of these people are standing?

A. Yes, sir.

Q. Now would it be true, this side you're talking about, you observed Ms. Nomad; is that correct?

A. I can't tell you exactly where they're standing.

Q. Do you remember seeing these people?

A. I can't say exactly.

Q. Would you agree that this video is doing a panorama of the entire area?

Would you agree with that?

A. To an extent.

Q. Did you arrest any of these people that you see in here?

A. Not to my knowledge.

Q. What was the next time that you gave a warning?

A. At 10:36.

Q. Do you recall people playing drums and singing?

A. Yes, sir.

Q. Do you remember seeing this man right here?

A. Yes, sir.

Q. Was he there beside Diane Nomad?

A. I don't know if he was exactly beside her, but I've seen him.

Q. You've seen him.

And that's the reason why because you've seen Ms. Nomad


61

more than one Occasion; isn't that right?

Excuse me?

Q. You've seen Ms. Nomad on more than one occasion; isn't that correct?

A. Yes, sir.

Q. That's why you said that you remember her particularly that night; isn't that correct?

A. Yes, sir.

Q. Now you saw Ms. Nomad beating the drum; isn't that right?

A. Uh-huh.

Q. Could you hear the drum?

A. Could you restate the question, please?

Q. Could you hear the drum?

A. I could hear people banging the drums.

Q. Could you hear Ms. Nomad strike that drum?

A. Not from where I was sitting in the police car.

Q. Would you agree that if you sit down, that your line of vision or your field of vision is decreased when you're looking over a crowd?

Would you agree with that?

To an extent.

Q. And each time while you made this public announcement, your car was pointed in what kind of direction?

A. It was pointed westbound.

Q. Westbound on Pennsylvania Avenue: is that correct?


62

A. Uh-huh.

Q. Would you have been on the same side of the street that the demonstrators were on or the opposite side of the street?

A. Same side.

Q. And as you were parked in that direction -- and you said that Ms. Nomad was to the immediate left of the existing crowd is that correct?

A. Yes.

Q. Which side of the car were you sitting on?

A. Driver's side.

Q. On the driver's side.

That puts the car, in addition, between you and the demonstrators; is that correct?

Yes, sir.

Q. Wasn't there also a line of police officers on the front side between the Lafayette Park and the White House; is that correct?

A. Not to my knowledge.

Q. You didn't see any police officers out there?

A. I saw police officers, yes.

Q. Where were they?

A. In the park area.

Q. In the park area?

A. Yes.

Q. Were any of them between you and the demonstrators?


63

A. I can't say from my knowledge.

Q. But you remember seeing Diane Nomad's face out of every body else that was at that park on that particular occasion and you can't recall whether or not the police were there; is that correct?

I remember seeing her face.

Q. Could you tell whether or not she was striking the drum with her right hand or her left hand?

A. I cannot say.

MR. WALLACE: That's all the questions I have of this witness, Your Honor.

THE COURT: Okay.

MR. MURTAGH: Briefly, Your Honor.

RE-DIRECT EXAMINATION

BY MR. MURTAGH:

Q. Officer Gurrieri, with respect to the times that you gave the warnings, how did you determine those times?

A. To my knowledge, we checked with Communications on a time check and gave the warnings.

Q. Okay. Now with respect to the video that you've observed here, where in relation to the cameraman -- let me ask you this.

Were you standing with the cameraman when the pictures were taken?

No.


64

Q. You were standing someplace else or were you someplace else?

A. I wasn't with the cameraman.

Q. Okay.

MR. MURTAGH: Thank you. Nothing further.

THE COURT: You can step down.

[Witness excused]

THE COURT: Next witness?

MR. MURTAGH: That's it, Your Honor.

THE COURT: All right. Any exhibits you need to move in?

MR. MURTAGH: Yes. Your Honor, the government would offer and ask that Government's 1 and 2, the audio devices, be received.

THE COURT: Without objection, they're received.

[Government's Exhibit Nos. 1 and 2 received into evidence]

MR. MURTAGH: I would also ask, Your Honor, that we be able to get them back at the conclusion of the case.

THE COURT: You can get them at the end of the trial.

MR. MURTAGH: Government's Exhibit 3, that's a map of Lafayette Park.

THE COURT: Without objection, received.

[Government's Exhibit No. 3 received into evidence]


65

MR. MURTAGH: Government's Exhibit 5, which -

THE COURT: Without objection, received.

[Government's Exhibit No. 5 received into evidence]

MR. MURTAGH: Government's Exhibits 6 and 7.

THE COURT: Without objection, they're received.

[Government's Exhibit Nos. 6 and 7 received into evidence]

MR. MURTAGH: Government's Exhibit 8, the audio warning.

THE COURT: Without objection, it's received.

[Government's Exhibit No. 8 received into evidence]

MR. MURTAGH: Government's Exhibit 9, the drum.

THE COURT: Without objection, it's received.

[Government 's Exhibit No. 9 received into evidence]

MR. MURTAGH: And Government's Exhibit 10, the videotape.

THE COURT: Received. It was previously received.

MR. MURTAGH: I'm sorry, Your Honor?

THE COURT: It was previously received.

MR. MURTAGH: I don't believe I marked -

THE COURT: Exhibit 4 is another report. Were you going to offer it?


66

MR. MURTAGH: 4? Yes, Your Honor.

THE COURT: Did you object to that? That was Rule's report.

MR. WALLACE: Your Honor, I would not object to Rule's report if the entire report is admitted.

THE COURT: It's received.

MR. WALLACE: The secondary one that talks about the generator.

MR. MURTAGH: I didn't offer that one.

MR. WALLACE: I'm just saying, I would have no objection to his reports, all of his reports.

MR. MURTAGH: Your Honor, the problem is that the second report is for the 29th of January. I don't have any problem with it coming in -

THE COURT: It's not marked or offered?

MR. MURTAGH: No, I didn't offer it.

THE COURT: Government 4 is received.

MR. MURTAGH: Thank you.

[Government's Exhibit No. 4 received into evidence]

THE COURT: That's all your evidence?

MR. MURTAGH: That's all my evidence, Your Honor.

THE COURT: You rest. Have you got a witness?

MR. WALLACE: Your Honor, I'd like to make a motion for a directed verdict of not guilty at this time, a motion of


67

acquittal, Your Honor.

The standard that the Court must employ is whether or not the Court can find beyond a reasonable doubt that the defendant committed the offense as charged. I think the evidence of this case, Your Honor, does not rise to a level of beyond a reasonable doubt simply because the evidence fails to -- the government has failed to prove that the drumming that Ms. Nomad caused exceeded the 60 decibels.

There's been no testimony directly relating to Ms. Nomad's drumming. The officer -- I asked him specifically, the last officer, whether or not Ms. Nomad was, in fact, beating; he said she was beating. I asked him whether or not he could hear it. I think that would be crucial to the testimony of showing that she was, in fact, drumming to some level of noise.

The second problem, Your Honor, by the government's own evidence, it shows that the reading included the background noises. The government's witnesses said that there was talking, traffic noise, all that sort of stuff that's measured by the audiometer.

So therefore, Your Honor, it rises to a level of doubt of whether or not the drumming at that particular time exceeded 60 decibels for which she's charged. I believe the government's evidence has failed.

THE COURT: Okay. Your having offered and my having received Defendant's 1 in evidence, your motion is denied.


68

In any event, your motion would be denied. I think once you've offered evidence, you can't make a motion for judgment of acquittal anyway.

MR. WALLACE: Your Honor, I heard that before -

THE COURT: That's my understanding of the law.

MR. WALLACE: But that's just to the contrary.

THE COURT: Is that not right?

MR. WALLACE: The first time I ever heard that was when I came to Washington. I mean, I never heard of that before. I mean, I never heard of that before because -

THE COURT: Well, I'll give you the alternative ruling. You motion will be denied in any event on the merits.

MR. WALLACE: Okay.

THE COURT: So you need not detain us on that. Do you have a witness?

MR. WALLACE: Yes, Your Honor, one witness. We call Mr. William Thomas.

WILLIAM THOMAS, DEFENDANT'S WITNESS, AFFIRMED

DIRECT EXAMINATION

BY MR. WALLACE:

Q. Would you state your name for the record, please?

A. William Thomas.

Q. Mr. Thomas, reflecting your attention back to the date of January the 27th, 1991, did you have an occasion to be in Lafayette Park?


69

A. January 27th?

Q. Yes, sir.

A. Yes, I did.

Q. Do you know whether or not, in Lafayette Park during that period of time, there were any generators putting out noises at the park?

A. Yes, there were.

Q. And how were you able to determine that those generators were there?

A. I saw them.

Q. Okay. And had you been monitoring what was going on at Lafayette Park during this period of time?

A. I was.

Q. And when was the first time you brought the question to someone's attention about the generator noises?

    Well, on January 29th.

Q. And who did you bring -- whose attention did you bring it to?

A. Sergeant Rule.

Q. Sergeant Rule.

And can you tell us what made or what prompted you to bring this generator noise situation to the -- to Mr. Rule?

Sergeant Rule had been monitoring the sound levels of people who were playing drums on the south side of the park.

Q. Well, had anything in particular happened to make you


70

become cognizant of the situation on the monitoring of the musical instruments?

A. He had already supervised the arrests of some people for allegedly exceeding a sound decibel limit.

Q. Okay. And was one of those individuals you knew as Diane Nomad?

A. Yes.

Q. And on that particular night, were the generators running?

A. On January 27th?

Q. Yes, sir.

A. Yes.

Q. Between the hours of –

A. They were running from, I believe, sun-down until sun-up.

Q. Okay. And after you brought this to Sergeant Rule's attention on the 29th, were the generators there anymore?

A. I can't recall if they were shut off on the 29th or on the 3Oth, but they shut them down shortly after.

Q. How did you know that those generators were emitting noise?

A. Sergeant Rule told me that they were at 72 decibels.

MR. WALLACE: That's all the questions I have of this witness, Your Honor.

CROSS-EXAMINATION

BY MR. MURTAGH:

Q. Good morning, Mr. Thomas.


71

A. Good morning.

Q. Now let me ask you, Mr. Thomas, when was the first time in this January 27th time period that you were in Lafayette Park?

A. On January 27th.

Q. You weren't there on the 26th?

A. I was there on the 26th.

Q. That's sort of my question.

When did you begin to be present at the demonstration or to monitor the demonstrations at Lafayette Park?

A. Well, I didn't begin to pay any attention to monitoring the demonstrations until the 27th because prior to the 27th, there was no objection voiced to anything that was going on.

Q. Well, I don't know if you've answered my question, Mr. Thomas.

My question is not when you began to pay attention, but when were you there first with respect to let's say the 20th of January?

A. I was there on the 20th of January.

Q. And the 21st?

A. I was there on the 21st.

Q. And the 22nd?

A. Yes.

Q. Okay. When did you cease to be there? The 27th, 28th, 29th? In other words, from what period to what period are you there?


72

A. I'm not sure specifically what you're saying. Essentially, I suppose you could say I was there through the entire period.

Q. And what period is that in your mind?

A. From what you're asking, I was there from January 20th until January 27th. I was there from January 20th until whenever you want to say.

Q. Well, but I'm asking you, Mr. Thomas. In other words, can you recall the end of your presence there? In other words, is it the 29th of January, the 3Oth, February, when?

I really don't understand. I'm still there essentially. I mean, I'm not there now, but I try to be there all the time.

Q. I see. Okay.

THE COURT: Well, you're there for some time every day?

THE WITNESS: Yes.

THE COURT: Basically?

THE WITNESS: Yes.

THE COURT: That's continued throughout this whole period?

THE WITNESS: Yes. And even prior to January 20th. If it will help at all, the drumming began on January the 12th and I was there on January the 12th.

BY MR. MURTAGH:


73

Q. Okay. Now do I understand your testimony on cross-examination [sic] and I'm paraphrasing, but I'm asking you, is it correct that the first thing that really sort of stands out in your mind on the 27th is the arrests going down; is that right?

A. I think that's probably what stands out more than anything in my mind on this date, yes.

Q. So other than the arrests, I take it, there really isn't anything in your memory to distinguish say the 27th from the 26th or the 25th of January?

A. Well, the 27th is distinguishable from the 26th from certain observations that I made on that day.

Q. Okay.

A. And then on the 28th, I began to use different devices to record what was going on because I thought it was all questionable.

Q. All right, sir. Now were you recording anything on the 27th of January?

A. No.

Q. All right. When was the first time, if you can recall, on the 27th of January, that you observed Sergeant Rule? Do you understand my question?

A. I'm not sure I observed Sergeant Rule on the 27th.

Q. Well, didn't you testify on direct that he supervised some arrests on the 27th?

A. He was supervising arrests during that period. He was


74

supervising arrests on the 29th, I think it was.

Q. Okay. But my question is –

A. But I'd have to -- and specifically what he was doing was, he was using a decibel meter to check the sound and on the 29th was when I was referring to.

Q. Okay. Well, is it –

A. That's the first time I have a clear recollection of Sergeant Rule being present there.

Q. So is it correct that you have no clear recollection of him being present on the 27th of January at all?

A. No, I can't remember Sergeant Rule on the 27th of January.

Q. All right. How about Sergeant Borden?

A. No.

Q. All right. Let me ask you, with respect to the 27th, did you bring to anybody's attention the presence of the generator?

A. No.

Q. Okay. With respect to the daylight hours of the 27th of January, do you know whether the generator was running or not?

A. I don't think it was.

Q. Do you have a clear recollection -- strike that.

Now if you can, Mr. Thomas, can you tell us, did you notice anybody on the 27th taking any sound readings?

A. No, I didn't.

Q. Not Sergeant Rule?

A. I didn't notice anyone. The 27th. -- the incidents on the


75

27th came as something of a surprise. A police officer said that the drumming would stop on the 27th, but that was just a rumor. But it was my thought that the entire drumming was perfectly protected and harmless and that there was no reason to stop it, and so I sort of discounted it.

For that reason, I hadn't been paying much attention to what was going on. For that reason, I didn't mention anything about the generators on the 27th because it all came as something of a surprise.

It wasn't until after the police began to enforce this regulation that the sound of the generators even occurred to me, and then I thought it was very unusual that the police should be disturbed with a sound that wasn't as loud as the generators and yet, was much closer to the Hay-Adams Hotel.

It was for that reason that I brought the question to Sergeant Rule's attention.

Q. Did you bring it to anybody's attention on the 28th of January?

A. No, I didn't.

Q. Were the generators going?

A. Yes, they were.

Q. Were arrests made?

A. In the early morning hours of the 28th, there were some arrests.

Q. And the generators were going?


76

A. Yes.

Q. And you didn't bring it to anybody's attention?

A. No.

Q. Okay. Mr. Thomas, do you know whether the audiometers or the meters -- and let me show you Government's 1 -- now, sir, do you know whether those meters are directional or not?

A. Well, if I recall, they're omni-directional according to the instruction manual.

Q. Okay. So in other words, it measures frontwards and backwards?

A. It has a certain -- it has a cone and it measures every thing within the range of the cone.

Q. All right. Well, that's a little different from being omni-directional, isn't it?

A. It may be.

Q. Okay. But -

A. I'm not an audio expert.

Q. You're not an audio expert?

A. No.

MR. MURTAGH: Thank you. Nothing further, Your Honor.

MR. WALLACE: I just have one quick question.

RE-DIRECT EXAMINATION BY MR.

WALLACE:

Q. Just to clarify a few things, Mr. Thomas, is it your


77

testimony that you brought it to Sergeant Rule's attention that the generators were exceeding the decibel levels after Ms. Nomad and some other people had been arrested; is that correct?

A. It was two days after. I didn't tell Sergeant Rule that the generators were exceeding the level. I asked him what the reading was on the decibels.

Q. Did Sergeant Rule then take a reading of the generators?

A. He then walked over to the generators and I followed him and he took a reading.

Q. Okay. And were those generators going during the night time hours?

A. The generators were powering lights and they went on at dark and they went off when the sun came up.

Q. So if a person was reading the noise level where the demonstrators were, would that generator noise be included, from your understanding of the audiometer readings?

MR. MURTAGH: Objection, Your Honor.

THE COURT: I'll sustain that.

MR. WALLACE: That's all the questions I have, Your Honor.

THE COURT: Where were these generators, Mr. Thomas?

THE WITNESS: The generators were on the -- well, there were two of them. There was one on the west side of the park and one on the east side of the park. Each was approximately one-third of the way into the park; in other words, half


78

the distance from the center of the park where the statue of Andrew Jackson is to either Jackson Place or Madison Place. They were situated in the center.

The one on the west side of the park was about due south of the Hay-Adams Hotel, which was approximately 75 yards closer to the hotel than the south sidewalk.

THE COURT: What were they, gas-powered generators?

THE WITNESS: Yes.

THE COURT: Gas-powered?

THE WITNESS: Yes.

THE COURT: Any other questions?

MR. WALLACE: No questions, Your Honor.

MR. MURTAGH: Briefly, Your Honor.

RE-CROSS-EXAMINATION

BY MR. MURTAGH:

Q. Mr. Thomas, with respect to the 27th of January, okay?

A. Yes.

Q. Is it not correct that you have no knowledge as to where the position of the generators was with respect to where Sergeant Borden was when he was taking his readings?

A. I didn't see Sergeant Borden taking any readings, so the answer is no, I don't have any idea where they were.

Q. So it's possible, is it not, that the generators could have been behind Sergeant Borden when he was taking readings at the northern position in the park?


79

A. If he made -- northern position of the park?

Q. Well, let me show you Government's 5 in evidence and I'm referring to the N there.

A. The generators were to the north.

Q. Okay.

MR. MURTAGH: Nothing further. Thank you.

THE COURT: You can step down.

[Witness excused]

THE COURT: Any other witnesses for the defendant?

MR. WALLACE: Yes, Your Honor, Sergeant Rule.

THE COURT: Sergeant Rule, I remind you you're still under oath. You can resume the stand.

SERGEANT ROBERT RULE, DEFENDANT'S WITNESS RESUMES THE STAND UNDER OATH

DIRECT EXAMINATION

BY MR. WALLACE:

Q. Sergeant Rule, during the period of time that you were monitoring the sounds at Lafayette Park, were there gas operated generators in the park?

A. I believe there were.

Q. Okay. Do you know where they were located?

A. Yes. On the north side.

Q. Okay. Would you take Government's Exhibit No. 5 and mark on there where you believe the generators were located?

A. Approximately in this area here and here.


80

Q. So there were two of them; is that correct?

A. That's correct.

Q. And were those generators on during the periods of time that you were working that night?

MR. MURTAGH: I'm going to object, Your Honor, unless we can pin this time period down.

BY MR. WALLACE:

Q. That night when you were working, were the generators going?

THE COURT: On January 27th? You didn't work on that night.

THE WITNESS: The 27th? Yes, sir.

THE COURT: Well, you worked the night of the 26th and the morning of the 27th?

THE WITNESS: I really don't recall exactly if they were or they weren't. The 29th, I got a complaint from Mr. Thomas about them and I tried today to find out when they were first installed, first put up there, and it's difficult to say. But I imagine they were there.

BY MR. WALLACE:

Q. Okay. And as we spoke earlier about the way sound travels, if that generator was sitting in the middle of this room, hypothetically -- say it's Government's Exhibit 9 -wouldn't you agree that the sound that comes from that generator would travel in a circular motion? When I say circular,


81

we'll put an imaginary circle around the drum and each section would move out, out, out until it couldn't be heard anymore; is that correct?

A. That's my understanding, but I'm not an expert.

Q. That's your understanding.

Would you just briefly, with this red pen, circle the way that you understand that sound would travel emitting from those two generators on Government's Exhibit No. 6?

Well, it would travel in all directions around.

Q. Yes, sir. And would you agree that that circle would emit itself all the way out; is that correct?

MR. MURTAGH: I'm going to object to all the way out, Your Honor.

BY MR. WALLACE:

Q. Well, to a reasonable distance?

MR. MURTAGH: I would object to that.

BY MR. WALLACE:

Q. Until the sound diminishes.

THE COURT: Do you have any knowledge -- you heard on some occasions, I take it?

THE WITNESS: Two days later, Your Honor, after the date in question, Mr. Thomas, William Thomas, came to me and complained that the generators, he felt, were too loud. In response to that complaint, I went up and did the required, came back approximately 50 feet away from it as the CFR states, the generators


82and did a DB check. It was, I believe, 62 decibels. It was above 60.

THE COURT: At 50 feet?

THE WITNESS: At 50 feet, that’s correct. So what I did was, I had the people shut them down at that time.

[Defendant’s Exhibit No. 2 marked for identification]

BY MR. WALLACE:

Q. And did you file a report? I show you government’s [sic] Exhibit No. 2. Did you file this written report?

A. Yes, I did.

Q. Is this your report, in fact?

A. That is my report.

MR. WALLACE: Your Honor, we’d move to have Government’s – I mean, Defendant’s Exhibit No. 2 admitted.

THE COURT: Any objections?

MR. MURTAGH: No, Your Honor.

THE COURT: Received.

[Defendant’s Exhibit No. 2 received into evidence]

BY MR. WALLACE:

Q. and, Sergeant, were you there on the particular night that arrest was made?

A. At the time of the arrest?


83

Q. Yes, sir.

A. No, I was not.

Q. Okay. Can you tell us what the general atmosphere was, from your understanding -- well, not the atmosphere, but what the noise level was on the particular nights that you took the readings, background noises?

MR. MURTAGH: I'm going to object, Your Honor, again with respect to if we can pinpoint the dates.

MR. WALLACE: I'll withdraw the question, Your Honor. No problem.

THE COURT: Any cross?

MR. MURTAGH: Very briefly, Your Honor.

CROSS-EXAMINATION

BY MR. MURTAGH:

Q. Sergeant Rule, my question is this.

With respect to January 27th, 1991, do you recall hearing generators at any time when you were taking readings?

A. No.

MR. MURTAGH: Thank you. Nothing further.

THE COURT: You can step down.

[Witness excused]

THE COURT: Any other witnesses for the defendant?

MR. WALLACE: No, Your Honor.

THE COURT: Any rebuttal witnesses for the government?


84

MR. MURTAGH: No, Your Honor.

THE COURT: You can argue. I assume this is brief enough we can do this before lunch or do you want to take a lunch break?

MR. WALLACE: This is fine, Your Honor.

MR. MURTAGH: Your Honor, may it please the Court, with respect to the evidence that the government has adduced, I think it's clear that Ms. Nomad is, on the 27th of January, part of a group that at various times is metered and that the decibel readings are in excess of 60 decibels on the A-weighted scale at 50 feet.

Your Honor, I do not believe that the government has the burden of proving that Ms. Nomad alone caused more than 60 decibels worth of noise and my basis for that is as follows. In the first place, the information was amended by a superceding information to put the defendant on notice that she was charged with concerted action and I think the proof certainly shows that there were people acting in concert on the night of the 27th and on the day of the 27th, of which Ms. Nomad was one --that she had a drum, that she was beating it.

Whether the officer in the car could hear it at that time is irrelevant because he wasn't taking the readings; someone else was taking the readings.

Also, Your Honor, with respect to the legal basis for a charge of concerted action, I would submit that 18 U.S.C. 2


85

provides that whoever aids or abets an offense against the United States, et cetera, is guilty as a principal. The issue, I believe, then becomes one of whether the CFR violation is an offense against the United States and I would submit that it is for the following reasons.

16 U.S.C. 3 provides, in pertinent part, that the Secretary of the Interior can propound regulations to govern the national parks and that a violation of those regulations is punishable by a period of imprisonment of six months or less and a $250 fine. So it is clearly an offense.

Then, Your Honor, with the amendment of Title 18, Section 1 which defined or previously defined petty offenses, we now go to, if I recall correctly, 18 U.S.C. 19, defining petty offenses and then 18 U.S.C. 3559.7, which further defines for the purposes of the Sentencing Reform Act, this particular conduct as a petty offense punishable by six months or less.

So I would submit that while it may be a petty offense, it is nonetheless a petty offense against the United States and 18 U.S.C. 2 is therefore applicable. The fact that it is a misdemeanor does not prevent someone from aiding or abetting the commission of a misdemeanor and accordingly, one can be charged -- although I grant you it's an unusual use of the charging mechanism -- but can be charged with aiding and abetting a violation by someone of a CFR violation.

I think it's no different, Your Honor, if for the


86

sake of argument, Mr. Thomas had held a big drum and Ms. Nomad had had a paddle and beat the thing and the decibel was 61, for the sake of argument, that the two of them acting in concert had violated the CFR provision. I think it's no different if her noise contributes to the overall 60 decibel level.

Clearly, there was no question of surprise, as I think Mr. Thomas' testimony, I would submit, should be, if you will, taken with a grain of salt on the issue of whether the arrests came as a surprise. There were three warnings; this had been going on all day and these people -

THE COURT: Well, I took it his comment was they would have been surprised when they got the first warning. Obviously, after the warnings, there was no longer any surprise.

MR. MURTAGH: I guess he didn't believe they meant it, but obviously they did.

A couple of other points, Your Honor. With respect to the instruction manual which the officers were cross-examined about, I would submit that it is irrelevant with respect to the officer's conduct in enforcing this statute, that 60 decibels under certain circumstances may be considered by the manufacturer of the instrument as background music.

There the real issue I think is the challenge to the reasonableness of the statute and I would submit that Your Honor has already passed on that. So the officers cannot


87

really be held responsible for enforcing the law as written. Obviously, that was not their call.

With respect to the issue of Ms. Nomad being observed by Officer Gurrieri, I would submit that his testimony should be accepted at face value and the fact that a videotape taken at night under varying lighting conditions, portions of the tape are using merely ambient light and you can't really distinguish who's there at all, and others are taken, albeit in a panning-type motion with a battery-operated flood light.

There again, we did not offer the tape to prove that Ms. Nomad was there. We rely on the testimony of Sergeant Borden and Officer Gurrieri for that matter.

With respect to the generator, Your Honor, I would submit that the evidence is, at best, in conflict on that point. Mr. Thomas didn't bring this to anyone's attention until the 29th of January and seems -- and I believe I'm quoting him accurately -- to have not been paying too much attention on the 27th until the arrests were effected.

So I would submit that the testimony of Sergeant Rule, who certainly when this was brought to his attention, did act conscientiously to monitor the thing and to turn it off, I would submit that his recollection or his non-recollection of hearing the generator on the night or the morning of the 27th should be accepted by the Court.

In any event, with respect to Sergeant Borden's


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readings, which are taken, for the most part, in daylight, there is no evidence whatsoever, conflicting or otherwise, that the generators, if they were present, were in fact in operation.

That would basically be my argument, Your Honor, unless the Court has specific points you'd like me to address.

THE COURT: Thank you.

MR. WALLACE: Just briefly, Your Honor.

Your Honor, the standard, viewing the evidence in the light most favorable to the government, is whether or not a reasonable trier of fact could find guilt beyond a reasonable doubt. I think that's what we're talking about here, Your Honor, and the government has failed.

They've failed in a number of ways, Your Honor. Number one is that the 60 decibel readings which brings us to court is in question. The officers who testified, particularly Officer Rule, who seemed to have the most knowledge about the way these meters work, indicated that the meters will not discriminate against noises.

That is the most prevalent thing. There was talking, chanting, drumming, all of that stuff combined. He got a reading of 64 or 60 decibels. What percentage of that decibel was talking? If it was 10 percent, then the government has failed. If it's one percent, then it's below 60 and they've failed. We don't know what the drumming was by itself;


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whether the drumming exceeded 60 decibels, but the readings that they gave included all of the noise, every bit of it. That's doubt.

We don't know whether or not they calibrated their machines to tune itself in to drumming noises or anything else like that because they didn't do it. I think Officer Rule was very honest and straight-forward in his testimony. He indicated that that machine could not discriminate against noise.

I asked him to take a reading here in the courtroom of my voice and it exceeded 60 decibels according to that meter, but it also took into account the noise from the -- I think it's the heater in here as well.

So, Your Honor, the standard is whether or not the government has proven that she drummed that drum to exceed 60 decibels. We don't know what that drum produced by itself or any of the other drums. They could have been drumming all night, Your Honor, and it may have, hypothetically, only been 50 decibels, but for the talking, the walking and the other noises in the background that could have pushed it to a higher level.

I think that the government's proof here is suspect and it's weak because it cannot and does not prove that the drum-like noises exceeded 60 decibels. All we know from the entire testimony is that the noise at Lafayette Park on that particular night exceeded 60 decibels and that's all we know.

Therefore, Your Honor, in applying that standard the


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government has failed.

Again -- I'm just going over my little check list here -- is that the generator was running, if we even include the generator; there were people talking -- that was the testimony -- and the sound meters will not discriminate against noise.

Therefore, Your Honor, that in enough creates a reasonable doubt and I ask the Court to discharge Ms. Nomad and enter a not guilty verdict.

THE COURT: All right. Anything further?

MR. MURTAGH: Briefly, Your Honor.

With respect to Sergeant Rule's testimony, I would point out that the government did not rely on Sergeant Rule's readings of the decibel levels with respect to Ms. Nomad's culpability. In point of fact, I believe counsel objected to the testimony of the readings at all on direct.

I would point out, Your Honor, that Sergeant Borden, I believe, testified that the drumming never stopped and that viewing the evidence in the light most favorable to the government and having seen the demonstrators as a group on the videotape, I think it's clear, Your Honor, that the readings that were taken were done in such a way as to minimize, if not eliminate, the use or the inclusion of background noise, and that it was, in fact, the demonstrators which were making the readings which far exceeded 60 decibels.

I think we have testimony they went as high as 74 or


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78 decibels. I would submit, Your Honor, that the government has met its burden of proof, not with respect to Ms. Nomad alone, but as part of a group in concerted action.

Thank you, Your Honor.

THE COURT: All right. I'm satisfied, based on the evidence I've heard, that the defendant is guilty beyond a reasonable doubt. I believe it is clear that she was part of a group that was beating drums; that she aided and abetted this concerted action. I credit the testimony of Officer Gurrieri that, in fact, at the time of the three warnings, he personally observed her continuing to beat the drum, so she was clearly a part of this group that was continuing to beat the drums.

I'm satisfied with Sergeant Borden's testimony that the beating of the drums at the very moments of the warnings and at the time of the arrests was, in fact, in excess of 60 decibels.

That afternoon when there were no generators concededly operating, the testimony of Sergeant Rule indicated that the drumming consistently exceeded 70 decibels. I could not observe, and I do not believe, that the generators had any appreciable effect, even if Mr. Thomas is right that they were on that night, in the effect of the noise at the particular site where this drumming was going on.

The videotape itself strongly corroborates the meter readings. There's no generator noise obvious on the videotape


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and the constant banging of the drums is clearly visible and, in fact, after one of the warnings, it was noticeably louder than it had been prior to the warning itself.

Sergeant Borden's testimony that he saw the defendant between 3:00 and 6:00 that afternoon also beating drums at the time that he was taking readings further corroborates the testimony of officer Gurrieri that this defendant was beating drums in a loud manner.

Clearly between 3:00 and 6:00 that afternoon, the group that she was a part of was beating drums in excess of 60 decibels when Sergeant Borden took those readings. There's no question there were no generators operating at that time.

From the Court's perspective, there's no question that the group, including the defendant, were unreasonably disturbing non-participating persons in this area of Lafayette Park; that the constant banging clearly would drive away any park visitors; and that, in fact, what the Court has witnessed here is good, conscientious, indeed praiseworthy police work with proper warnings given before the arrests were undertaken and proper specific explanations of what the violations would be if the defendants did not cease their conduct and stop banging on the drums.

So the Court is satisfied beyond a reasonable doubt that the defendant is guilty and the Court finds the defendant guilty of Count 1 of the second superceding information.


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With that then, I presume there's no need for a presentence report and we can proceed to sentencing now, if the government is prepared to go forward. I'll hear from the government first. You can be seated until the government finishes.

MR. MURTAGH: Your Honor, may it please the Court, I, with some -- reluctance is not the right word -- but perhaps with appreciation for the gravity of the moment when we are asking the Court to sentence someone based on what they perceive to be an expression of their First Amendment rights.

This is something that obviously the Court will weigh very heavily in imposing any sentence that the Court sees fit. Nonetheless, Your Honor, I do believe that some period of incarceration is merited here because the conduct is certainly willful; the conduct was done not in any ignorance of the regulations or warnings from the police.

The conduct was done, if you will, I submit, purposefully to annoy, to disturb, and to, if you will, rob those in proximity to this noise of any peace of mind or sleep or whatever. I think that the touchstone, Your Honor, is that if the defendant and if the demonstrators as a group had sought to stay within the regulations, which are not drawn in any way to impede First Amendment expression, but I think were done originally, literally to protect the peace and tranquility of our national parks.


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Now the fact that Lafayette Park is across the street from the White House I don't think removes it -- and the Court has already ruled on this matter -- from all regulation. So I think, Your Honor, in assessing as to whether some period of incarceration is merited in this case, the Court should bear in mind that the defendant had an alternative means of expression, which is essentially the same. They could have beat the drum slowly or lowly or at reasonable hours and they'd still be beating them to this day.

With that in mind, Your Honor, I would ask that the Court impose some period of incarceration commensurate with Your Honor's assessment of the seriousness of the conduct.

Thank you.

THE COURT: Mr. Wallace?

MR. WALLACE: Your Honor, briefly I take opposition completely with the government's position. I don't believe that her conduct was willful or purposefully to violate the statute. The Court has already made its decision with respect to whether or not she's guilty or innocent, but I would like to point out something that the government mentioned.

If Ms. Nomad's intentions were to make her vigil or her protest to what was happening in the Persian Gulf in a manner that did not exceed 60 decibels, there has been no evidence presented to show that she was a part of the group that intended to exceed 60 decibels, assuming that all this is


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true that she was, in fact, beating.

If she was beating her drum in her own vigil toward the situation, then hers could have been very well within the law. I don't believe that she purposely attempted to evade the law in any manner whatsoever. So therefore, when the police officers read the warning that anyone who exceeded 60 decibels, her intentions could have been to comply by beating at a slow and lower pace.

THE COURT: That wasn't the warning given. The warning was that they were all to immediately cease, wasn't it?

MR. WALLACE: Well, Your Honor, the statute -

THE COURT: Because they had been found to be operating in excess of 60.

MR. WALLACE: Right.

THE COURT: So the police said they had to stop because they were violating the law.

MR. WALLACE: But see, that's the part where the police don't have the authority to do it. They have the authority to tell you to stop if you exceed 60 decibels.

THE COURT: They don't have to do that. They can arrest you on the spot. They don't have to give you any warning.

MR. WALLACE: I understand that, but -

THE COURT: They didn't do that here. They gave them another opportunity to evade arrest.


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MR. WALLACE: Right, so that's my point. Well, if they did give her a warning to cease the activity, I think that some of them would have interpreted it, as well as Ms. Nomad, as not to exceed the required decibel levels. So therefore, I think the willfulness part should not be considered.

Any offense against the United States is a serious offense, but this is not the kind of offense that we should ask a person to go to jail for, expressing what she believed to be a First Amendment right. That doesn't happen in America. I just cannot believe that the United States would ask that to happen.

It is a sensitive political question that has been raised in this entirety, but we don't want to get into that at all. I just don't believe that this country is made or designed to put people in jail for exercising their First Amendment right if the Court were to consider that as a whole.

THE COURT: Well, I've already found that she didn't have a First Amendment right to engage in this conduct.

MR. WALLACE: Right. I understand that, but what I'm saying -

THE COURT: I'm not sentencing her for any First Amendment conduct.

MR. WALLACE: Right.

THE COURT: This conduct was not protected by the First Amendment.


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MR. WALLACE: Yes, Your Honor But I still believe that we could use our resources in incarcerating people who commit more serious kinds of crimes. Maybe this will serve as a very valuable lesson to Ms. Nomad; I'm sure it will. But we need our room in our jails for other more serious and more violent kinds of offenses.

I just ask the Court to exercise its discretion and not send her to jail because it's a waste of real resources to incarcerate her and feed her for a period of time for this kind of offense. I just ask the Court to exercise its discretion and even if the Court were to decide to place her on probation or something, I think at this stage in Ms. Nomad's life, she's been under some kind of probation or another, and I just ask the Court to discharge her and let her go home.

THE COURT: All right. Ms. Nomad, I know you would be nervous at a time like this, but anything you'd like to say on your own behalf, I'd be willing to hear it.

THE DEFENDANT: First and foremost, I'd like to say that Officer Gurrieri perjured himself because I was not with that group of people that was drumming. And I was praying a Buddhist chant with that drum. I was not attempting to exceed any decibel levels. I was in prayer and vigil and I was far from where they were taking the decibel readings that evening.

I hope that this Court sees fit to allow people to pray in a manner that they feel moved to pray and not accuse


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them of a crime. I appreciate your considering that. Thank you.

THE COURT: All right.

THE DEFENDANT: Also, I did spend overnight in jail that night, so I did serve some time in jail already. Thank you.

THE COURT: All right. It's the judgment of the Court that the defendant, Diane Nomad, is hereby sentenced to the custody of the Bureau of Prisons for incarceration for a period of seven days. The Court believes that the conduct of the defendant was not protected under the First Amendment and has previously so ruled.

In the Court's view, those who engage in expressive conduct that turns into civil disobedience, as occurred here, certainly can do so, but they must then be held accountable for their actions and they have to pay the price for that action which is in disobedience with what the Court has found to be the laws of the land.

While I do not in any way intend to interfere with expressive, peaceful civil disobedience, I do intend, as a Judge, to say that those who engage in that conduct then should expect to be held accountable for conduct which does violate the law and in my view, in this case, that's a period of incarceration for seven days.

I will, however, because there are serious questions


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presented, stay execution of that pending any timely appeal that's noted by the defendant. Mr. Wallace, I'm sure, will assist you in filing notice of appeal and you'll be continued on the same conditions until the appeal is resolved and we'll let all the legal issues get sorted out.

If the Court of Appeals agrees with me that this was a violation of law, then my view is there has to be some accountability when the law is violated and seven days is an appropriate period. But we'll wait to do that until after the Court of Appeals has ruled.

Thank you very much, counsel.

MR. WALLACE: Thank you, Your Honor.

[Whereupon, at 12:50 p.m., hearing in the above-entitled matter was adjourned.]

* * *

I certify that the foregoing is a true and correct transcript from the record of proceedings in the above-entitled matter.

/s/Carrie Lucina Gansle

CARRIE LUCINA GANSLE, CVR-CM
OFFICIAL COURT REPORTER


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