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VOLUME III TRIAL
TRANSCRIPTS, 2-11-01
IN THE CIRCUIT COURT IN AND FOR
PINELLAS COUNTY, FLORIDA
CASE NO. 99-7430-CI-08
:
CHURCH OF SCIENTOLOGY FLAG SERVICE :
ORGANIZATION, INC., a Florida :
corporation, :
:
Petitioner, :
:
vs. :
:
ROBERT S. MINTON, JR., ET AL., :
:
Respondents. :
----------------------------------------x
BEFORE: The Honorable THOMAS E. PENICK, JR.
PLACE: Pinellas County Judicial Building
545 First Avenue North
St. Petersbrg, Florida
DATE: February 11, 2001
TIME: 12:30 P.M.
REPORTED BY: JACKIE L. OSTROM
Court Reporter
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ORDERS TO SHOW CAUSE
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Pages 259-435
Volume III
ROBERT A. DEMPSTER & ASSOCIATES
P.O. BOX 35
CLEARWATER, FLORIDA
(727) 443-0992
APPEARANCES
The Honorable THOMAS E. PENICK, JR.
CIRCUIT COURT JUDGE
F. WALLACE POPE, JR., ESQUIRE
JOHNSON, BLAKELY, POPE ET AL
911 Chestnut
Clearwater, Florida
MICHAEL LEE HERTZBERG, ESQUIRE
740 Broadway, Fifth Floor
New York, New York 10003
Attorneys for Church of Scientology Flag Ship
Organization
JOHN MERRETT, ESQUIRE
2716 Herschel Street
Jacksonville, Florida 32205
BRUCE G. HOWIE, ESQUIRE
PIPER, LUDIN, HOWIE AND WERNER
5720 Central Avenue
St. Petersburg, Florida 33707
Attorneys for Robert Minton and
Lisa McPherson Trust, Inc.
261
1 PROCEEDINGS
2 THE COURT: Are we ready?
3 MR. MERRETT: Yes, Your Honor.
4 THE COURT: Good afternoon.
5 MR. MERRETT: I understand that this to
6 be taken up at the Court's leisure, but I
7 wish to announce Mr. Henson is present.
8 THE COURT: From California?
9 MR. MERRETT: Yes, sir.
10 THE COURT: All right. I'll deal with
11 that accordingly.
12 MR. MERRETT: Yes, sir.
13 THE COURT: And at the proper time, but
14 thank you for telling me that. All right.
15 Mr. Pope, you ready to call your next
16 witness?
17 MR. POPE: I am, but before I do so I
18 would like to raise a legal matter from
19 yesterday that was left a little bit
20 incomplete, if I may.
21 THE COURT: Okay.
22 MR. POPE: It won't take me but a minute
23 or two.
24 THE COURT: Okay.
25 MR. POPE: In connection with the
262
1 respondent's motion to hold Mr. Geiger and
2 Judy Ross and the Church in contempt relative
3 to the service of process on Ms. Brooks in
4 the Ruth Chris Steakhouse, Mr. Merrett made
5 his argument that section 47.272 prohibited
6 Pinellas process from being served in
7 Hillsborough County by a Hillsborough
8 certified process server and, you know, that
9 was once true, but it got changed and it got
10 changed by legislative enactment effective
11 June 17, 1998.
12 Now, Mr. Merrett relied on a case called
13 Adbate which was cited in 1994. It's a
14 Fifth District case and he gave you a copy
15 of it.
16 All he had to do was shepardize that
17 case and you would find the Fifth District's
18 opinion in Decker versus Kaplas (sic) which
19 is 763 So. 2d. 1229 which points out that
20 the legislature changed the statute and it
21 cites Adbate and I got the session law and I
22 want to give counsel a copy of this so they
23 can follow along. Here is the session law.
24 I brought along the actual session law
25 book because it has the underlined -- may I
263
1 approach the bench, Your Honor?
2 THE COURT: Come forward, please, sir.
3 MR. POPE: It's 98.410 and here's the
4 section. I've highlighted it to make it a
5 little bit easier to find.
6 THE COURT: Okay.
7 MR. POPE: What the legislature did
8 apparently when the Adbate case was decided.
9 the sheriffs of the State of Florida went
10 into an uproar because they've been trying to
11 pawn off the civil service thing for years
12 and that opinion severely tied our hands, so
13 they had the legislature fix it
14 two-and-a-half years ago.
15 Now, so the entire argument that
16 Mr. Merrett made collapsed in 1998, June 17,
17 which could have easily been found simply by
18 shepardizing the case and finding the
19 amendment, so I wanted to bring that to the
20 court's attention on the front end and when
21 you're ready, I'm ready to proceed.
22 THE COURT: Let me do this.
23 Mr. Merrett, I'll give you a chance if you
24 want to say anything now or I'm not ready to
25 deal with this matter, so if you come with
264
1 something, I'll give and Mr. Howie an
2 opportunity, but at some point in time I am
3 going to have to address that.
4 MR. MERRETT: I understand that, Your
5 Honor, and it may be in the same statute, but
6 contained in the actual section of evidence
7 code is probably how Mr. Pope found it.
8 THE COURT: Okay. We'll get there.
9 Okay, Mr. Pope, sir, please call your next
10 witness.
11 MR. POPE: Our next witness next Algar
12 Avila.
13 Thereupon:
14 ALGAR AVILA
15 was called as a witness and having been duly sworn, was
16 examined and testified as follows:
17 DIRECT EXAMINATION
18 BY MR. POPE:
19 Q Tell us your name, please, sir?
20 A Algar Avila.
21 Q Your address, sir?
22 A 551 North Saturn.
23 THE COURT: Hold on. Go ahead and spell
24 your name so we can get it in the record.
25 THE WITNESS: A-L-G-A-R A-V-I-L-A.
265
1 THE COURT: Thank you.
2 BY MR. POPE:
3 Q What is your occupation?
4 A Security for the Church.
5 Q Mr. Avila, I want to direct your attention
6 to the December 7, 2000, that date.
7 A Okay.
8 Q Did you, on that date, observe Tory Bezazian
9 in the vicinity of the Coachman Building?
10 A Correct.
11 Q Would you please describe what you saw her
12 doing?
13 A I saw her in the entrance way to the parking
14 lot at the Coachman Building, which is the 503
15 address, and she was blocking the entrance way to the
16 parking lot.
17 She was standing there with her picket signs
18 up within ten feet of the injunction that I know
19 because I looked at it and that was a violation of it
20 as far as I know.
21 MR. MERRETT: I want to object and ask
22 to strike this as legal conclusion and ask
23 counsel to take charge of the witness to
24 avoid a narrative and this kind of error.
25 MR. POPE: You know, Your Honor, I'd
266
1 like to request that the judge direct counsel
2 to stop lecturing me.
3 THE COURT: Gentleman, were getting off
4 to a shaky start here. Let's see if we can
5 avoid any of the back biting diatribes and
6 both of you, please, show a little respect to
7 the other side, and counsel, let's walk it
8 down the road with the questions.
9 MR. POPE: All right, sir. Where was I
10 before that occurred?
11 THE COURT: He was just getting ready to
12 talk about what he observed.
13 (Thereupon, the question referred to was
14 read by the reporter as above recorded.)
15 BY MR. POPE:
16 Q All right. Let's go back. As I recall you
17 said she was blocking the driveway. Were you there?
18 A Yes.
19 Q Okay. So would you tell us whether any
20 automobiles actually tried to get in the parking lot
21 at that time?
22 A Yes, that is correct. She actually -- there
23 was a vehicle that came into the entrance of the
24 parking lot and stopped right there at the entrance
25 and Tory was talking to the person inside of a vehicle
267
1 and, you know, at that point after like maybe a minute
2 of her talking to the person, there was a van, a
3 church van, trying to come in to unload and load
4 passengers and the van actually had to stop in the
5 middle of the street because they couldn't get into
6 the parking lot.
7 At that point I had to signal the driver of
8 the vehicle to keep moving because he was blocking
9 traffic and then finally he did and the van could come
10 in, but she was blocking.
11 Q So as I understand, she had stopped the
12 vehicle right in the open part of the parking lot?
13 A Right, the entrance to the parking lot.
14 Q And then there was another vehicle trying to
15 get in?
16 MR. MERRETT: I'll object to the
17 leading.
18 THE COURT: Sustained.
19 BY MR. POPE:
20 Q So what was there right behind her at that
21 time, sir?
22 A Sorry, what?
23 Q What vehicle, if any, was right behind the
24 one in the parking lot you just described?
25 A That was a church van.
268
1 Q Okay. What did it have to do?
2 A Well, they was trying to get into the
3 parking lot so they could unload and load people, but
4 it couldn't because there was a vehicle there which
5 Tory --
6 Q Where was it stopped?
7 A In the, just in the entrance of the parking
8 lot.
9 Q The van, where was the van stopped?
10 A The van had to stop in the street.
11 Q And was it blocking Ft. Harrison?
12 A Yes, it was.
13 Q All right. Now, have you viewed a video?
14 May I approach?
15 THE COURT: You may, sir.
16 BY MR. POPE:
17 Q Have you viewed a video of this?
18 A Yes, I have.
19 Q Now, if I may, is that the video that you
20 have viewed of this event you just testified to?
21 A Yes, it is.
22 Q Is that a true and accurate depiction of
23 what saw and what you just testified about?
24 A Correct.
25 MR. POPE: I'd offer that into evidence,
269
1 Your Honor.
2 MR. MERRETT: I'd ask for leave to voir
3 dire, Your Honor?
4 THE COURT: You may.
5 VOIR DIRE EXAMINATION
6 BY MR. MERRETT:
7 Q What day was this?
8 A Seventh.
9 Q Of December?
10 A Correct.
11 Q And the events you described took place on
12 the Ft. Harrison side of --
13 THE COURT: Let's do this, sir. You may
14 stop down. Turn that so everyone can see and
15 so they can see. He may step down.
16 (Whereupon, a pause in the proceedings took
17 place.)
18 BY MR. MERRETT:
19 Q Okay. This is the Coachman Building?
20 A Uh-huh.
21 Q The parking lot that you're referring to is
22 this area here where I've put the X?
23 A Right.
24 Q Okay. That's north? North is --
25 A That way.
270
1 Q Is that right?
2 A I don't know. What is this? Is that to the
3 entrance, or --
4 Q The driveway, yes. There's two driveways on
5 that side of Coachman, right?
6 A No, there's only one entrance to the parking
7 lot.
8 Q Okay. And the street that runs beside the
9 Coachman Building or behind the Coachman Building
10 doesn't go all the way through, right? It doesn't
11 cross Ft. Harrison, correct?
12 A Right.
13 Q Okay. Now --
14 MR. POPE: I thought he was going to
15 voir dire the witness with respect to the
16 authenticity of the tape. It looks like he's
17 cross-examining him before I'm finished with
18 him.
19 THE COURT: Well, let's do this. Did we
20 got through voir dire? I agree, it sounds
21 like cross. I'm not sure where we're going
22 here.
23 MR. MERRETT: Well, the first question
24 of voir dire is the next question which you
25 can't answer without these.
271
1 THE COURT: Okay. I'll give you some
2 latitude. Let's see.
3 BY MR. MERRETT:
4 Q Thank you. Where were you?
5 A I was in the parking lot.
6 Q Show me where and mark it with an A.
7 (Whereupon, witness marked drawing.)
8 And did you have a video camera?
9 A Nope.
10 Q Okay. And did you move at all during the
11 time that you say Ms. Bezazian was standing in the
12 driveway?
13 A Yeah, I moved around a couple of feet.
14 Q But, I mean, you didn't go anywhere?
15 A No.
16 Q Okay, and can resume your seat. So we can
17 assume if you didn't have a video camera you didn't
18 make the video that you're swearing is accurate,
19 right?
20 A I didn't take it myself.
21 Q Where was that video taken? Where was the
22 camera?
23 A I believe in the Ft. Harrison.
24 Q Where?
25 A In the northeast corner.
272
1 Q And you didn't have a remote control device
2 to run the camera, did you?
3 A No.
4 Q And you couldn't see what that camera was
5 seeing, could you?
6 A No, I was just seeing what I'm seeing.
7 MR. MERRETT: Okay. Your Honor, I would
8 suggest the witness is not competent to
9 authenticate this videotape which doesn't
10 show the view that he saw, nor is he
11 competent to establish the authenticity for
12 the silent witness rule.
13 THE COURT: Mr. Pope?
14 MR. POPE: Your Honor, the videographer
15 is not necessary to authenticate a tape.
16 Anybody can authenticate it if they witness
17 the event and are in a position to testify
18 that it is a true and accurate depiction of
19 what they saw and that's precisely what he
20 said.
21 THE COURT: Proceed.
22 MR. POPE: May we play it, Your Honor?
23 I renew my offering it into evidence.
24 THE COURT: Let's do something.
25 Mr. Howie, Mr. Merrett raised his objection.
273
1 Is there anything you want to say or do that
2 you want to voir dire?
3 MR. HOWIE: No, Your Honor, I don't
4 request voir dire, but I would join with
5 Mr. Merrett in the objection.
6 THE COURT: Okay. I understand that.
7 And with those objections noted for the
8 record, I'll allow Mr. Pope to proceed. And
9 let's do this. You want to put that into
10 evidence.
11 That will be number five if you give
12 here. Let's mark it before going any
13 further.
14 MR. MERRETT: Your Honor, could I take a
15 look at the label before you put your label
16 on it?
17 THE COURT: That's what I've been doing,
18 just so you know. What I've been trying to
19 do is reserve those labels and put mine above
20 it or something so that we don't get there,
21 so bear with me a minute.
22 (Plaintiff's Exhibit Number Five was
23 admitted into evidence.)
24 All right, Mr. Pope. It's in evidence
25 now.
274
1 MR. POPE: Thank you, Your Honor.
2 (Whereupon, the videotape was played.)
3 It's a very short video, Your Honor.
4 THE COURT: A little bit too short.
5 Play it again, please.
6 MR. POPE: Yes, sir.
7 THE COURT: Is that you in the maroon or
8 purple shirt?
9 THE WITNESS: No.
10 THE COURT: It looks like a
11 walkie-talkie or something sticking out the
12 guy's back pocket.
13 THE WITNESS: Yeah, that's Jeff with the
14 camera.
15 THE COURT: Okay.
16 (Whereupon, videotape was played a second
17 time.)
18 MR. POPE: I have no further questions
19 of the witness, Your Honor.
20 THE COURT: Okay. Thank you, Mr. Pope.
21 Mr. Merrett, you may inquire, sir.
22 MR. MERRETT: Thank you, Your Honor.
23 THE COURT: I'll stay here. You may
24 want to play the video.
25
275
1 CROSS-EXAMINATION
2 BY MR. MERRETT:
3 Q Mr. Avila, you saw the area Mr. Jacobson and
4 Ms. Bezazian crossed. What they just crossed, that's
5 the street, correct?
6 A Yes, that's true.
7 Q Okay. Then the next thing is there is some
8 bushes, some kind a landscaping and then there is a
9 driveway; is that right?
10 A Correct.
11 Q Okay.
12 THE COURT: This was at the first
13 entrance to the driveway?
14 THE WITNESS: It's at the north side or
15 I'm sorry, the Ft. Harrison side of the
16 entrance.
17 THE COURT: Right. I don't know the
18 drawing there behind his head, but I got the
19 impression there are two entryways to that
20 parking lot.
21 THE WITNESS: Well, there's one, but
22 it's on the other side.
23 THE COURT: I see. Okay.
24 MR. MERRETT: Right. That's why the one
25 is scratched out.
276
1 THE COURT: I see. You've scratched
2 that out. Okay.
3 BY MR. MERRETT:
4 Q Let me ask you something. This fellow right
5 here, that's a Scientology security guard, right?
6 A Correct.
7 Q Okay, and you saw this whole thing?
8 A Yeah, that's myself.
9 Q Oh, that's yourself, so you weren't in the
10 parking lot like you said when you saw Ms. Bezazian
11 stop the car?
12 A Well, as you can see, she's not stopping the
13 car there yet.
14 Q Okay. Let me ask you this. You drove down
15 the sidewalk she was standing on, right?
16 A I believe so, near by.
17 Q Let's be certain. You're going up on the
18 sidewalk, right?
19 THE COURT: That's you on the bicycle.
20 THE WITNESS: Yeah.
21 THE COURT: With the helmet on?
22 THE WITNESS: That is correct.
23 BY MR. MERRETT:
24 Q And you pass behind on the sidewalk that she
25 was standing on, right?
277
1 A Yes, went around her.
2 Q Okay. Now, I want you to tell us, what is
3 this sidewalk; 50 feet wide, 60 feet wide, 100 feet
4 wide?
5 A The sidewalk itself?
6 Q Yeah.
7 A Maybe about ten feet wide.
8 Q Okay. So then you were between the edge of
9 the sidewalk and Ms. Bezazian when you went behind
10 her?
11 A Yeah. I'd have to go around, yeah.
12 Q And you knew the injunction prohibited you
13 and any other Scientologist from coming within ten
14 feet of Ms. Bezazian, right?
15 A Correct.
16 Q So you went within ten feet of her anyway,
17 right?
18 A Yeah. She stopped going in the entrance of
19 the parking lot so, I mean, she's not supposed to be
20 there in the first place.
21 Q Uh-huh. So you're admitting, though, that
22 you violated the injunction, right?
23 A I wouldn't think so because I was going into
24 the parking lot she wasn't supposed to go into.
25 Q Okay.
278
1 A She was already there.
2 Q Now, there is another entrance around the
3 corner, right?
4 A Well, that's supposed to be an exit. You're
5 supposed to go in here and go out the other side.
6 Q Okay. There is however another entrance
7 that was available to you in the parking lot more than
8 ten feet away from her, right?
9 A Yeah, I guess I could have gone around.
10 Q You could have just turned right there and
11 gone in the other end of the parking lot?
12 A Yeah.
13 Q Okay. Now, let me ask you, the Scientology
14 van that you said was stopped, giving its direction of
15 travel, can you tell the judge which way it turned to
16 go into the parking lot?
17 A Which way it turned into the parking lot?
18 Q Yeah. Was it driving making a right-hand
19 turn or left-hand turn?
20 A Right turn.
21 Q Okay. And it was unable to do that because
22 that green car was stopped in the driveway, right?
23 A Correct.
24 Q So that there wasn't -- traffic couldn't
25 move through there?
279
1 A Yeah.
2 Q So no traffic could go in -- it couldn't go
3 in. That's an entrance, right?
4 A Right.
5 Q Okay.
6 (Whereupon, the video was played.)
7 You want to tell us what this big brown
8 thing on wheels is here?
9 A That's a UPS truck.
10 Q And it's going into that driveway into that
11 parking lot, right?
12 A Right.
13 Q Okay. The parking lot that you suggested
14 not a minute ago, you told us it was blocked and no
15 traffic could go in and out of that drive, right?
16 A Right.
17 Q Okay.
18 A At least the van.
19 Q So nothing -- I guess the maximum size would
20 be a UPS delivery van is what you meant?
21 A No, actually the UPS truck -- the reason why
22 it couldn't get in there is because he was coming
23 around the other side.
24 Q Well --
25 A Making a left turn.
280
1 Q They went in through the same driveway,
2 right?
3 A Right.
4 Q And that's the driveway that you just
5 described as being blocked and unusable, correct?
6 A It was blocking the van, yes.
7 Q Okay.
8 (Whereupon, the video was played.)
9 Now, where that black car came out and the
10 Scientology van is coming out, that's the street that
11 runs along the side of the Coachman, right; the side
12 of the parking lot?
13 Q Right.
14 THE COURT: That's an east/west street,
15 right?
16 MR. MERRETT: Yes, sir.
17 THE WITNESS: Yes.
18 BY MR. MERRETT:
19 Q Now, you touched on in direct examination
20 that the van was stopped directly behind the green
21 car?
22 A Yeah, right there.
23 Q Wasn't it just past the green car?
24 A Yes. It's actually off the picture, but it
25 is siting there in the street.
281
1 Q Well, let's walk through this a second
2 because I need you to help me understand this. That
3 one?
4 A Nope.
5 Q Okay. That one?
6 A Nope.
7 Q Okay.
8 A That one.
9 Q Okay. Let's watch it.
10 (Whereupon, the videotape was played.)
11 You saw the van and its shadow disappear
12 past the back of the green car, right?
13 A It's off the picture, but it's actually on
14 the street, sitting on the street.
15 Q Okay, but it's already driven past the green
16 car, correct?
17 A No, it's behind it.
18 Q Well, let's look at this.
19 (Whereupon, the videotape was played.)
20 You see that red car going past the back of
21 the green car?
22 A Yes.
23 Q It's in the same lane that the white van was
24 in, wasn't it?
25 A It had to go around it.
282
1 Q Okay. It is passing the green car at this
2 moment, correct?
3 A No, it's probably just past the street.
4 Q See the shadow of the van leave; the red car
5 hits its brakes?
6 A Right, and turns left.
7 Q And the van is beyond the green car,
8 correct?
9 A No, it's still right behind it.
10 Q So who is the Scientologist responsible for
11 videotaping this?
12 A I'm not sure.
13 Q You don't know who made it?
14 A No.
15 Q You don't know who was working as far as who
16 moved the camera around?
17 A No.
18 Q And you don't know why what you're
19 testifying to isn't on this film?
20 A Well, because they happened to film that. I
21 don't know.
22 Q In other words, what this videotape is
23 showing is not the same thing that you saw because you
24 were over here on the other side of all this, correct?
25 A It's the same thing though, from a different
283
1 angle.
2 Q Okay. The difference being that what you
3 were able to see included the van and what the film
4 included would tell us whether or not you're telling
5 us the truth about, it ain't there, right?
6 A Yeah. I saw the van in the middle of the
7 street and the video doesn't show that except maybe a
8 little bit of the back of it in front of it.
9 Q When did you last view this videotape before
10 coming to court today?
11 A Um, I think I saw it yesterday.
12 Q All right. When did you last see it before
13 that?
14 A Um, I guess maybe a week ago.
15 Q Now, at that time it included additional
16 footage, didn't it?
17 A Um, yeah, I think so.
18 Q Okay. And did you edit the tape so the
19 parts that you wanted were in it and the parts that
20 you didn't want weren't?
21 A No, I didn't.
22 Q Who edited the tape after it was produced?
23 A I'm not sure. I was given the tape to see
24 that, to watch.
25 Q Okay. What we have here is a tape that you
284
1 didn't make that you admit was edited. Footage was
2 removed from the tape, right?
3 A Sorry, what?
4 Q Footage was removed from the tape, right?
5 There was more to it when you saw it a week ago than
6 there is now, right?
7 A You mean the original tape?
8 Q When you looked at the tape a week ago there
9 was more to the tape than what is here. It was
10 longer?
11 A Yeah, I guess they recorded more of it.
12 Q Okay.
13 A From the different angle.
14 Q And somebody and you don't know who, edited
15 that out before you and Mr. Pope brought the tape to
16 court today?
17 A I don't know.
18 Q You don't know?
19 A No.
20 MR. MERRETT: May I have just a minute,
21 Your Honor?
22 THE COURT: You can have it.
23 (Whereupon, a pause in the proceedings took
24 place.)
25 BY MR. MERRETT:
285
1 Q Mr. Avila, I want you to assume that this is
2 the Coachman parking lot entrance, the driveway. This
3 is where Ms. Bezazian was standing?
4 A Uh-huh.
5 Q The green car is here?
6 A Right.
7 Q Okay. I want to make sure that what you're
8 testifying happened was that a UPS van. a full-sized
9 UPS van; not a Ford Aerostar, one that was specially
10 built for them?
11 A Right.
12 Q Came this way and drove in here; is that
13 right?
14 A Right.
15 Q Okay. But, that there was a somewhere -- we
16 know it wasn't between the Ft. Harrison and the corner
17 of the car because we don't see it in the videotape,
18 somewhere here there was a Scientology van that was
19 stopped because it couldn't get through where the UPS
20 truck was?
21 A Right.
22 Q Okay. And tell the court, if you
23 would -- just look at the judge and tell him how much
24 bigger your vans are than a UPS truck?
25 A They're not bigger.
286
1 Q Okay.
2 A Maybe about the same wide.
3 MR. MERRETT: Okay. I don't have
4 anything further.
5 REDIRECT EXAMINATION
6 BY MR. POPE:
7 Q Mr. Avila, when the green car finally moved,
8 what did the van do?
9 A It went into the parking lot.
10 Q Behind the green car?
11 A Correct.
12 Q Where had it been standing before it came in
13 behind the green car?
14 A On the street.
15 MR. POPE: Thank you.
16 MR. HOWIE: May it please the court?
17 THE COURT: Mr. Howie, yes. Sorry, I
18 missed your cross-examination.
19 CROSS-EXAMINATION
20 BY MR. HOWIE:
21 Q Sir, this is a parking lot for Scientology
22 parking lot?
23 A Correct.
24 Q And people going into that Scientology
25 parking lot generally have business with the
287
1 Scientology, correct?
2 A Yes.
3 Q It is not considered a public parking lot or
4 space where anyone can park in, correct?
5 A Right.
6 Q Can you identify the driver of the green car
7 that's stopped in the driveway?
8 A No idea.
9 Q You have no idea why they were there?
10 A Just because they happened to stop to go in.
11 Q And you have no idea why they had stopped?
12 A I just saw them pull in and they started to
13 go in.
14 Q And you have no idea why they stopped?
15 A I have no idea. He's definitely not a
16 Scientologist. I've never seen him before.
17 Q But you don't know who it is?
18 A Right, I don't know.
19 Q And you don't know what their business was?
20 A Right.
21 Q And you don't know why they stopped, do you?
22 A They stopped because they stopped because to
23 talk to her, yeah.
24 Q They stopped to talk to Tory Bezazian?
25 A Yeah.
288
1 Q When you say they, how many occupants of the
2 car were there?
3 A There was one person in the car and she was
4 standing outside.
5 Q Now, you did observe that the car stopped
6 voluntarily, did you not?
7 A I didn't see if she waved them down or they
8 came to her, but when I looked she was there talking
9 to the person.
10 Q And did you also notice that when the van
11 pulled up behind that Tory Bezazian walked backwards
12 waving the car. You did observe this, didn't you?
13 A Yeah. At that point because then that van
14 was behind the car.
15 MR. HOWIE: Thank you. No further
16 questions.
17 THE COURT: Hold on just a minute.
18 (Whereupon, a pause in the proceedings took
19 place.)
20 Mr. Merrett, anything else?
21 RECROSS-EXAMINATION
22 BY MR. MERRETT:
23 Q Just briefly. Do you know all of the
24 Scientologist that there are?
25 A No, not completely. I usually have seen
289
1 them.
2 Q I thought there was eight million of them?
3 A Probably.
4 MR. MERRETT: I don't any have anything
5 further.
6 THE COURT: All right. Mr. Pope.
7 MR. POPE: Nothing further, Your Honor.
8 THE COURT: Okay. Can we excuse him?
9 MR. POPE: We can.
10 THE COURT: Okay, sir. I thank you come
11 coming in. You are free to leave. Mr. Pope,
12 call your next witness.
13 MR. POPE: We call Antonio Avila.
14 MR. MERRETT: Your Honor, before we take
15 that up, at this time I would a move a motion
16 to strike the video that it was testified
17 that the video has been altered and the last
18 time since he had reviewed it had been
19 edited, there was additional footage. He
20 didn't know what had been removed, he didn't
21 know who removed it. He didn't know why it
22 was removed.
23 He was very clear that that videotape
24 was cut down from its prior state.
25 Additionally I would simply remind the court
290
1 that yesterday you accepted a videotape that
2 was purportedly authenticated by the
3 representation of Mr. Elkamel that he was
4 the guy that monitored it, and therefore had
5 seen that view and could therefore say that
6 he really viewed what the camera took.
7 Today we have somebody that wasn't in
8 that room and I assume that because
9 Mr. Elkamel's testimony was not necessarily
10 what they like yesterday they have a
11 substitute witness who didn't see it happen,
12 wasn't there and can't authenticate this
13 view in the same way testifying to as I
14 stated, he admitted on cross-examination is
15 an edited tape and he doesn't know what's
16 missing and he doesn't know who remove it
17 and he doesn't know why.
18 MR. HOWIE: We join in the motion.
19 MR. POPE: Your Honor, the tape that the
20 witness testified that what was on the tape
21 was a true and accurate representation of
22 what he saw. That is the predicate for one
23 of these tapes. He doesn't have to tape it
24 himself. He just was there and he saw it.
25 We cut off extraneous matter because --
291
1 MR. MERRETT: I'll object to counsel
2 testifying.
3 MR. POPE: The extraneous matter is out
4 of the tape, Your Honor, because it didn't
5 relate to the point of Ms. Bezazian blocking
6 the driveway. That was the point of the
7 tape. It didn't make sense to put a lot of
8 other stuff in there that didn't relate to
9 that.
10 MR. MERRETT: May I cross?
11 THE COURT: Yes, sir.
12 MR. MERRETT: Would you state your name.
13 MR. POPE: That's cute.
14 THE COURT: I'm sorry. I thought you --
15 I didn't realize that's where you were going.
16 MR. MERRETT: Your Honor, Mr. Pope has
17 reportedly testified to the preparation of
18 this videotape as a matter of fact. My point
19 is simply the easy thing to do, Judge, is
20 just tell them to bring Mr. Elkamel back or
21 tell them to produce whoever edited the
22 videotape.
23 I understand Mr. Shaw doesn't want
24 Mr. Elkamel back in the courtroom, but he's
25 the one that can authenticate it and he said
292
1 he's the one that did the edit and the
2 cutting and the pasting on the one from
3 yesterday so he may very well be the one
4 that did this.
5 MR. POPE: Your Honor, you admitted the
6 tape. It's in evidence. We've shown it.
7 Can we move on?
8 THE COURT: Just a minute. Let the
9 record be real clear that I'm not striking it
10 at this time, but I'll certainly take into
11 consideration everything that's been said
12 here and I will give it the weight I feel it
13 deserves. Let's press on.
14 MR. POPE: Call Antonio Avila.
15 THE COURT: Is there going to be a tape
16 involved in this?
17 MR. POPE: Yes, Your Honor.
18 THE COURT: I'll just stay here.
19 MR. POPE: All right.
20
21
22
23
24
25
293
1 Thereupon:
2 ANTONIO AVILA
3 was called as a witness and having been duly sworn, was
4 examined and testified as follows:
5 DIRECT EXAMINATION
6 BY MR. POPE:
7 Q Tell us your name, please, sir?
8 A Antonio Avila.
9 Q Was is your address, sir?
10 A 503 Cleveland Street, Clearwater, Florida.
11 Q And your occupation?
12 A I work as a security guard for Church of
13 Scientology Flag Service Organization.
14 Q And I want to call your attention to
15 December 4, 2000, late morning on the east side of the
16 building of the Bank of Clearwater Building. Were you
17 present there at 11:30?
18 A I was.
19 Q What did you observe?
20 A I was on Waterson Avenue at 11:30 in the
21 morning. I observed --
22 MR. MERRETT: Excuse me, Your Honor. I
23 object to relevance. There is no charge
24 actual occurring on December 4.
25 MR. POPE: I believe there is, Your
294
1 Honor.
2 THE COURT: I'm going to have to go back
3 up to the bench. I've got notes up there. I
4 need those. I'll be right back. Just stay
5 seated.
6 (Whereupon, a pause in the proceedings took
7 place.)
8 MR. MERRETT: I beg your pardon, Your
9 Honor.
10 THE COURT: All right. Do we stand
11 corrected?
12 MR. MERRETT: Well, I think so, Your
13 Honor, but the only problem is it looks like
14 the count, it looks like after talking to
15 Mr. Howie, we're jumping back and forth
16 between orders to show cause.
17 THE COURT: Well, that's -- you know,
18 that's why you all are AB attorneys. You're
19 able to follow these things.
20 MR. POPE: Let me explain.
21 THE COURT: Hold on just a minute now.
22 Another rocket ship was launched. Yes,
23 Mr. Howie.
24 MR. HOWIE: Only for clarification, the
25 allegations concerning December 4 at
295
1 approximately 11:30 on Waterson Avenue are
2 made in a separate motion order to show cause
3 and show cause order, which specifically does
4 not pertain to Tory Bezazian and if I
5 understand the court's direction correctly,
6 we were going to stick with one order to show
7 cause at a time.
8 THE COURT: That's what I was trying to
9 do. I was hoping that we would have the good
10 fortune to be able to do that. I don't know
11 if we're getting there. Let me see what's
12 going on.
13 MR. POPE: Your Honor?
14 THE COURT: Yes, sir.
15 MR. POPE: We have an amended and
16 consolidated order to show cause. In that
17 there are three different people or groups of
18 people. Ms. Bezazian is one. We rolled
19 three of them up in one and the court entered
20 the amended and consolidated one on
21 January 4.
22 THE COURT: Yeah. Now, that one I've
23 got in front of me; Tory Bezazian.
24 MR. POPE: Tory Bezazian.
25 THE COURT: Yes, sir. Robert Minton,
296
1 John Merrett, Lisa McPherson Trust, Grady
2 Ward, Jesse Prince, Rob Keller, Heather
3 Bennett and Frank Oliver.
4 MR. POPE: Paragraph one deals with
5 Bezazian, paragraph two deals with Keith
6 Henson, and paragraph three deals with a
7 group of people including Mr. Minton,
8 Mr. Merrett, the Trust, Ward, Prince, Keller,
9 Bennett and Oliver.
10 Now, I just -- so it's all in one order,
11 the last one related to Ms. Bezazian. The
12 coming witness relates to paragraph three
13 which deals with Minton, Merrett the Trust,
14 Ward, Prince, Keller, Bennett and Oliver.
15 THE COURT: Okay. Now, you want to go
16 ahead and proceed with Antonio Avila, right?
17 MR. POPE: Correct.
18 THE COURT: And I'm just going to leave
19 him sitting there because we're dealing with
20 the tape. I'll go back in a minute. Go
21 ahead, Mr. Pope.
22 BY MR. POPE:
23 Q Mr. Avila, I believe we had established who
24 you are and that were on the east side of the Bank of
25 Clearwater Building?
297
1 A Correct.
2 Q At 11:30 on December 4. And I asked you to
3 tell us what you observed, so will you please tell us?
4 A Yes, sir. 11:30 in the morning I was on
5 Waterson Avenue next to the Clearwater Building, or
6 the Bank of Clearwater Building and what observed John
7 Merrett on the northeast end of the building.
8 He had a ladder on the public side a right
9 adjacent to the building and a was up on the ladder
10 tampering with one of our security cameras. What I
11 mean is he had his hands on it and he was twisting it
12 and changing its position. That's a fixed camera
13 which is a security camera.
14 I observed that and started videotaping that
15 and I also told one of the police officers that was
16 there off-duty that Mr. Merrett was tampering with our
17 camera.
18 The officer went down to speak to him and
19 after a minute or so Mr. Merrett got down from the
20 ladder and Mr. Minton went up on the ladder and he
21 started tampering with our camera also, grabbing it
22 with his hands and changing its position. I believe
23 he was taking pictures of it, as well, and taking
24 them.
25 I got closer to get a better look and I
298
1 overheard the police officer that was already at the
2 location asking Mr. Minton to get down off the ladder
3 grabbing the camera. He was moving it or taking down.
4 Mr. Minton said he was not doing that. So I
5 have that on tape and they actually -- we had to have
6 one of our engineers come out and refocus the camera
7 and replace it because it was completely out focus
8 from messing around with it.
9 Q Who else was present at this event?
10 A We had -- I saw Jesse Prince there holding
11 the ladder. I saw Heather Bennett there helping with
12 the ladder.
13 THE COURT: Slow down. Just a minute.
14 (Whereupon, a pause in the proceedings took
15 place.)
16 Go ahead, sir.
17 THE WITNESS: Grady Ward was there.
18 Frank Oliver was also there, and Rod Keller
19 was there all present when this was
20 happening.
21 BY MR. POPE:
22 Q How far away is this from one of the
23 entranceways to the Bank of Clearwater Building?
24 A It's very close. We have -- it's actually a
25 delivery door where I believe there was someone in the
299
1 kitchen this is a position I would say with five feet
2 of the door.
3 At that time we also had a delivery taking
4 place and we had some of our church staff members
5 exiting and entering that entrance that we received
6 the delivery and one person didn't make a delivery
7 because saw them out there and she went back inside.
8 The other person had to continue doing the delivery,
9 though.
10 Q Did you --
11 MR. MERRETT: Excuse me, Your Honor, I
12 need to object and move to strike that last
13 statement for lack of competence.
14 THE COURT: Which part?
15 MR. MERRETT: The part where he said
16 that someone inside a building he wasn't in
17 didn't come out for a particular reason.
18 THE COURT: Mr. Pope?
19 MR. POPE: Fine. Disregard it, Your
20 Honor.
21 THE COURT: It's struck. Let's proceed.
22 BY MR. POPE:
23 Q All right. Now, later on was there another
24 event later on in the day relative to this camera?
25 A Yes. Later on in the day I believe it was
300
1 Peter Alexander and Patricia Greenway.
2 MR. MERRETT: Objection. Relevance.
3 THE COURT: Hold on just a minute. Hold
4 on. Hold on. Madam Court Reporter, read me
5 back his answer, the one that was
6 interrupted.
7 (Thereupon, the answer referred to was read
8 by the reporter as above recorded.)
9 Thank you. All right, Mr. Merrett, I
10 take this is some sort of an anticipatory
11 objection. I'm not sure what he's saying.
12 MR. MERRETT: Well, Your Honor, the
13 entirety of the allegations regarding the
14 camera set out in paragraph, I think it's 3A,
15 B and C of the amended and consolidated order
16 to show cause. They don't include
17 Ms. Greenway and Mr. Alexander and they don't
18 mention any event other than the event that
19 was testified to.
20 MR. POPE: I agree, Your Honor. I
21 thought that was in there but it's not. He's
22 correct, so I will not pursue that line of
23 questioning.
24 THE COURT: Okay. Thank you all very
25 much. Thank you, Madam Court Reporter. Go
301
1 ahead.
2 MR. POPE: I'm going to have him
3 identify the video, if I may. May I, Your
4 Honor?
5 THE COURT: Yes, sir.
6 BY MR. POPE:
7 Q I'm going to show you this videotape,
8 Mr. Avila. What is this?
9 A This is the tape which I recorded on the
10 December 4, 2000.
11 Q Okay. Is it a true and accurate depiction
12 of what you just described and what you saw?
13 A Yes, sir.
14 MR. MERRETT: Offer it into evidence,
15 Your Honor?
16 THE COURT: Objection?
17 MR. MERRETT: Depending on what it
18 actually is. I don't know, Your Honor.
19 THE COURT: I'll tell you what I'll do.
20 Go ahead and show it and then move it in.
21 MR. MERRETT: Your Honor, I would ask to
22 be permitted to --
23 THE COURT: You want a proffer view like
24 we did yesterday? I'll step out of the
25 courtroom and you all take a look at it.
302
1 MR. MERRETT: No, sir, I just want to
2 bifurcate cross-examination. I don't want
3 the witness watching a videotape before he's
4 cross-examined or the witness be excluded
5 while the tape is published.
6 THE COURT: I'll give you cross now. Go
7 ahead, and Mr. Howie, you too, sir. You want
8 to go first?
9 MR. HOWIE: No, I'll let Mr. Merrett go
10 first.
11 THE COURT: All right. Let's go ahead,
12 Mr. Merrett.
13 CROSS-EXAMINATION
14 BY MR. MERRETT:
15 Q Thank you, Your Honor, Mr. Avila, you've
16 routinely worked on Waterson; is that correct?
17 A Yes, that is correct.
18 Q And a substantial part of your duties
19 involves surveillance of the premises of the Lisa
20 McPherson Trust, right?
21 A No, I'm outside our property keeping an eye
22 to make sure nothing happens. That's my job.
23 Q You were here yesterday and you heard
24 Officer Harbert testify that the Scientology security
25 guards there at the corner of Cleveland and Waterson
303
1 routinely make calls on your radios or phones or
2 whatever when people come around the corner and the
3 coming and goings for the Trust. Who you calling?
4 A I get calls all the time. Sometimes I'm
5 initiating the call and sometimes I'm responding to
6 them.
7 Q When you're initiating the call in immediate
8 conjunction with the arrival or departure of somebody
9 who is associated with the Lisa McPherson Trust, who
10 are you calling?
11 MR. POPE: Objection, Your Honor. This
12 is way outside the scope of my direct
13 examination.
14 THE COURT: Mr. Merrett, where we going
15 with this?
16 MR. MERRETT: It goes to bias. I mean
17 that's the bottom line. I understand that --
18 THE COURT: Okay. All right. Go ahead.
19 Press on.
20 BY MR. MERRETT:
21 Q Who is that you call?
22 A It depends. Sometimes I call Ahmed Elkamel
23 who was here yesterday.
24 Q To alert him regarding videotapes in the
25 cameras watching the street?
304
1 A I'm sorry?
2 Q To alert him that there is going to be
3 action of some sort on the videotape that he's
4 monitoring?
5 A Right, that I have -- right. Right.
6 Q Okay. So, essentially what you do is you
7 help Scientology keep tabs on the people and the
8 comings and goings of people to and from the Lisa
9 McPherson Trust?
10 A Well, unfortunately we've had people
11 actually mess with our cameras from the Lisa McPherson
12 Trust and they're right, you know, pretty close to the
13 property and so he needs to be aware of that.
14 Q And this is something that you've done
15 before December 4. This is what you were doing well
16 before December 4, right?
17 A Negative.
18 Q Okay. Let me make sure that your testimony
19 is clear and on the record. You're testifying under
20 oath that prior to December 4 you did not monitor and
21 report on people coming and going from Lisa McPherson
22 Trust?
23 A On occasion.
24 Q Okay. So the answer is then yes rather than
25 no.
305
1 A I didn't fully get your question.
2 Q Okay. I understand that it was complicated.
3 The question was before --
4 MR. POPE: Excuse me, Your Honor.
5 THE COURT: All right. All right. Hey.
6 Gentlemen --
7 MR. POPE: May we approach the bench,
8 Your Honor?
9 THE COURT: No, let's do it another way.
10 Let's go to my chambers with the court
11 reporter and the bailiff.
12 (An unrelated hearing took place in
13 Chambers and was omitted from the transcript at
14 the direction of The Court.)
15 THE COURT: All right. Let's pick it
16 back up. Mr. Merrett, you were on cross. Go
17 ahead, sir.
18 BY MR. MERRETT:
19 Q Now, Mr. Avila; is that a correct
20 pronunciation?
21 A Yeah, that's fine.
22 Q I think we're in agreement that even prior
23 to December 4 you had been observing and videotaping
24 before on the comings and goings around the Trust,
25 right?
306
1 A One specifically, like pickets.
2 Q But also you have done one in the last ten
3 days as a matter of routine. If somebody drives
4 around the corner and stops at the Trust you stop and
5 pick up your phone, right?
6 A On occasion.
7 Q Okay. Now you mentioned that Mr. Elkamel
8 was one of the people that you communicated with on
9 those occasions. Who else?
10 A That's about it.
11 Q Okay. Who is your superior?
12 A Paul Kellerhoff.
13 Q Who is his superior?
14 A Actually, I don't know.
15 Q Where is Ben Shaw in your chain of command?
16 A He's not in the chain of command.
17 Q What department are you assigned to?
18 A I'm assigned to the security department.
19 Q And security is a part of what?
20 A It's part of the Church.
21 Q Okay. What department within the Church is
22 security part of?
23 A I believe it's department three.
24 Q And department three is what, by name?
25 A It's Inspections and Reports.
307
1 THE COURT: I'm sorry, I didn't hear
2 you.
3 THE WITNESS: It's Department of
4 Inspections and Reports.
5 BY MR. MERRETT:
6 Q Department of Inspections and Reports and
7 what is it above department three in the
8 organizational chart?
9 A That's a division, division one.
10 Q Which is what one?
11 A It's the communications office division.
12 Q Okay. Now, there is a term -- actually,
13 Your Honor, I'll move on from at that subject.
14 Now, if this is the Clearwater Bank Building
15 here on the left and this is the Lisa McPherson Trust
16 Building on the right, what is this building in the
17 middle?
18 A It's a neutral business. I'm not sure.
19 Q Okay, a neutral business. And this I'm
20 assuming is a public sidewalk, right?
21 A Correct.
22 Q Now, I want you to describe the camera that
23 you're talking about, if you would?
24 A You want me to draw it or --
25 Q First off just describe it for me.
308
1 A Okay. It's a camera that's on the north of
2 the -- the northeast end of the Clearwater Bank
3 Building it's about 12 foot up in the air affixed to
4 our property, Clearwater Bank Building.
5 Q And what does the camera look like?
6 A Um, it's actually a box.
7 Q Okay. A junction box, right?
8 A I don't know that. It's just a box.
9 THE COURT: It's on the northeast corner
10 of the bank building or I mean the Clearwater
11 Building?
12 THE WITNESS: Yeah.
13 THE COURT: And is it up there at the
14 roof?
15 THE WITNESS: No, it's close to it.
16 It's about -- let me see. It's about 12 foot
17 up in the are. It's on the wall.
18 THE COURT: That's the one next to the
19 down drain?
20 THE WITNESS: I believe it is.
21 THE COURT: Okay.
22 THE WITNESS: I think there's a down
23 drain there. I'm not sure.
24 THE COURT: You all allowed me last year
25 to go out there and observe and that's some
309
1 of the things I observed.
2 BY MR. MERRETT:
3 Q But the cameras -- there's actually two
4 camera's right?
5 A Correct.
6 Q And the two cameras are contained in a box
7 like this, right, with two of the knock-outs out?
8 A Well, it's a camera like -- I don't know how
9 many cameras are in the box.
10 Q Okay. But it's in a box like the one that
11 I'm showing you?
12 A Yeah, it's got points on it.
13 Q If I could get you to just put your initials
14 on the top of that box?
15 THE COURT: Here's a permanent marker.
16 MR. MERRETT: Your Honor, if I could ask
17 the court to mark that for identification.
18 THE COURT: All right. He initialled it
19 in black. I'll use a blue marker and call
20 this Defendant's Exhibit For ID Number Two
21 and let's put today's date on this, February
22 11, 2001 and our case number is 99-7430-CI-8.
23 (Defendant's Exhibit Two was marked for
24 identification.)
25
310
1 BY MR. MERRETT:
2 Q Now, Mr. Avila, that camera is mounted on a
3 piece of conduit, right?
4 A I believe that there is conduit and there is
5 something holding it down with screws to the wall.
6 Q Okay. All right. Please explain what you
7 mean when you say you think it's anchored to the wall
8 with screws?
9 A There is a piece of metal over the conduit
10 and it's into the wall.
11 Q I understand. I understand, so it's the
12 conduit that's anchored, right?
13 A Right.
14 Q Okay. Now, am I correct if this is the
15 conduit, it comes down from the top of the building
16 right?
17 A Right.
18 Q Okay. And it makes a 90 degree turn, right?
19 A I'm not sure about that. It goes into the
20 box.
21 Q Okay. At some point then, well, whether
22 it's 90 degrees or something else it comes in the box,
23 right?
24 A Right.
25 Q Now, putting exhibit two for identification
311
1 as though it were on the end of the conduit, the way
2 that the conduit is fixed and strapped to the wall the
3 camera can be swung, correct?
4 A No, it can't. It's fixed.
5 Q It's fixed?
6 A In other words, it can't move.
7 Q Okay.
8 A It's in a position so it doesn't move.
9 Q Okay, and that is accomplished how?
10 A Because I've seen it and it's got screws on
11 it holding it. It's not flexible or anything.
12 Q Well, show me on here where the screws are?
13 A Okay. You got -- this is like kind of from
14 the top. I'm not sure, but the conduit itself has got
15 a piece of metal and it goes like this across it and
16 you got a screw here and it's got a screw here.
17 Q Okay. Thank you. Maybe I'm not making
18 myself clear. What I'm asking you is this. If this
19 is strapped, the conduit itself can rotate within the
20 strap. I'm not asking you if it can be pulled away
21 from wall.
22 A I've never tried it.
23 Q So you don't know whether it can be,
24 correct?
25 A Well, you see what happens, you could, but
312
1 you have to force it because the screws are, you know,
2 it's tightened down to the wall.
3 Q Okay. Now, the name of this company that's
4 next door to the CWB, the Clearwater Bank Building,
5 you remember that?
6 A The name of the company?
7 Q Uh-huh.
8 A Motomco or something like that.
9 Q Okay. Just assume -- well, let me ask you
10 this. There is a either a party wall or contact wall
11 between and I'll refer to this as rat bait building
12 because that's what they sell, between the rat bait
13 building and the Clearwater Bank Building, okay?
14 THE COURT: What did you say?
15 MR. MERRETT: Rat bait, B-A-I-T. I was
16 talking to them one day and that's what they
17 said they do. They sell fine rat bait.
18 THE COURT: What is that, their national
19 headquarters?
20 MR. MERRETT: Evidently.
21 THE COURT: Okay.
22 BY MR. MERRETT:
23 Q That there is a shared wall here, right, or
24 at least the walls are --
25 A Well, the walls aren't touching each other.
313
1 It seems like the walls between the Clearwater Bank
2 Building and that company are very close.
3 Q Right. You couldn't stick your hand in
4 between the buildings?
5 A No, you couldn't.
6 Q Okay. That's what I wanted to established.
7 Now, what I want you to do and just use the template,
8 if you would, you know, to trace around it, if you
9 would draw on that diagram where, in relation to the
10 seam between the buildings where the buildings
11 join --
12 A Where it is located?
13 Q Yeah.
14 A Okay, well, I'd say an inch or something
15 like that. That's approximate.
16 Q Okay. And where was it located on
17 December 4?
18 A About right there. We're talking, right,
19 December 4, that's how it was.
20 Q So, it's your testimony, just so that we're
21 clear, on December 4 the wide surface of the box
22 containing the cameras that you're talking about was
23 hanging on the side of the Clearwater Bank Building?
24 A Right, an inch or so from the other
25 building.
314
1 Q Is it also your testimony that that camera
2 very clearly was not situated, not touching the rat
3 bait building, but hanging in front of the rat bait
4 building?
5 A I believe it was to the side like you've
6 drawn there?
7 Q Say that one more time?
8 A I believe it was to the side. Not on top of
9 the rat bait building, but on the Clearwater Bank
10 Building.
11 Q Okay. All right.
12 A See, it might be sticking out onto the
13 sidewalk a little bit, but not onto, you know, not in
14 front of the rat bait building.
15 Q Okay. Just to make your testimony clear and
16 take one more view on this -- that was a bad one.
17 We're looking down on the wall, okay. This is the
18 Clearwater Bank Building, this is the rat bait
19 building and this is the wall between?
20 A Uh-huh.
21 Q Can you draw from there where you're saying
22 the camera was situated if you were looking down from
23 the roof at the juncture of the building?
24 A Sure. You've got the conduit that sticks
25 out a little bit.
315
1 Q Right.
2 A And you've got this here.
3 Q Okay.
4 A Now, I've never seen it from the top, so I'm
5 just assuming.
6 Q Okay.
7 A See, I've never been up on a ladder looking
8 at it but from the ground that's how it looks.
9 MR. MERRETT: Okay. May I have just a
10 moment, Your Honor?
11 THE COURT: You can have it.
12 MR. MERRETT: I think that Mr. Avila may
13 for my part resume the witness stand.
14 THE COURT: Yeah, come on up here, sir.
15 Let's see where we go from here. Okay.
16 MR. POPE: Your Honor, I think this was
17 some sort of preliminary cross-examination we
18 were engaged in prior to my introducing the
19 tape and playing it. I think that's where we
20 were.
21 THE COURT: That's where we are. I
22 don't think he's through, yet.
23 MR. POPE: All right.
24 THE COURT: Let's wait and see where
25 this goes.
316
1 (Whereupon, a pause in the proceedings took
2 place.)
3 BY MR. MERRETT:
4 Q Now, you testified that you saw Jesse Prince
5 holding the ladder?
6 A That is correct.
7 Q How do you know who Jesse Prince is?
8 A Excuse me?
9 Q How do you know who Jesse Prince is?
10 A We know each on a first name basis.
11 Q How did you meet?
12 A We met several times in the street.
13 Q Uh-huh.
14 A He calls me by my first name.
15 Q Okay. Did he introduce himself to you?
16 A Not exactly.
17 Q Right. You had been shown photographs of
18 him prior to ever meeting him, right?
19 A I'm not sure.
20 Q You had been advised of who he was and what
21 he looked like before you ever met him by the people
22 that you worked for and worked with, right?
23 A I believe that somebody pointed him out to
24 me while he was on the street.
25 Q And identified him to you?
317
1 A Correct.
2 Q Okay. How about Heather Bennett; how do you
3 know who she is?
4 A Same way.
5 Q Somebody showed you a photograph of her and
6 told you who she was?
7 A No, same way as Jesse Prince. She was just
8 on the street and somebody next to me from the Church
9 told me that's Heather Bennett.
10 Q Okay. And Grady Ward, how do you know who
11 he is?
12 A I'm not sure. I believe he was involved in
13 a picket a few years ago and, yeah, I believe pointed
14 him out too.
15 Q Okay. And identified him by name?
16 A Correct.
17 Q Okay. And Frank Oliver?
18 A I believe he was with Grady on that same
19 picket a few years ago.
20 Q And somebody pointed him out and identified
21 him by name?
22 A Right.
23 Q And Rod Keller?
24 A I don't recall how I know him.
25 Q Okay. Have you ever met him?
318
1 A Not in person.
2 Q Okay.
3 A I've seen him from across the street. We've
4 been close.
5 Q I assume you mean physically close?
6 A Well, yes.
7 Q Okay. You said that you haven't met him
8 personally. Have any met him any other way? Have you
9 met him over the internet or by telephone?
10 A No.
11 Q Okay. Have you ever -- how do you know what
12 head and face go with the name, Rod Keller?
13 A I can't remember how I came to know him.
14 Q Okay. Somebody from the Church must have
15 told you though, right?
16 A I believe so.
17 Q Okay. And the Church takes great pains to
18 identify and keep tabs on who is coming and going
19 there, right?
20 A I'm sorry?
21 Q Scientology takes great pains, in other
22 words they put forth great effort to make sure that
23 they know who is coming and going at the Trust, right?
24 A I actually don't know how much effort they
25 put into it.
319
1 Q Well, enough for you to get that names of
2 people you never met, right?
3 A Right.
4 Q Okay. And these persons have been described
5 to you as suppressive persons?
6 A They have been described to me as members of
7 the Lisa McPherson Trust.
8 Q They have also been described to you as
9 suppressive persons or suppressive, correct?
10 A And you are referring to who?
11 Q These any or all of the people that
12 enumerated as being on the sidewalk on December 4?
13 A Actually, they haven't been described to me
14 like that.
15 Q Okay. They are, however, suppressive
16 persons, right?
17 A I would consider some of them to be.
18 Q Okay. And the Lisa McPherson Trust is a
19 suppressive or enemy organization, correct?
20 A Definitely an enemy organization, yes.
21 Q Okay. And these people, some or all of them
22 are enemies, correct?
23 A Right.
24 Q Okay. Let me ask you, of the people seating
25 on the right-hand side of room, we'll leave Mr. Howie
320
1 out of the midst, is there anybody on this side of
2 room that you haven't videotaped?
3 A I'm not sure I've videotaped the lady in the
4 back with --
5 Q The red hair?
6 A Right.
7 Q Okay.
8 A Everybody else I think at one point or
9 another I might have.
10 MR. MERRETT: Okay. If I might have a
11 moment, Your Honor?
12 THE COURT: You may.
13 (Whereupon, a pause in the proceedings took
14 place.)
15 BY MR. MERRETT:
16 Q You know what? I forgot to ask you this.
17 You said Mr. Oliver was there?
18 A Yes.
19 Q What was he doing?
20 A He was next to the ladder. I'm not sure
21 what he was doing.
22 Q Okay. And the ladder was in front of the
23 rat bait building, right?
24 A I believe it was, well, within five feet of
25 that entrance to the Clearwater Bank Building, so it
321
1 must have been -- it could have been half way in the
2 rat bait building and half way in the Clearwater Bank
3 Building.
4 Q But you don't know?
5 A I'm not -- I can't say for sure.
6 Q Okay. And you said that Mr. Keller was
7 there. What was Mr. Keller doing?
8 A He was right there where the ladder was, a
9 few feet from there.
10 Q Doing what?
11 A Observing.
12 Q Okay. And what did Mr. Ward do?
13 A He was at first observing and then somebody
14 told him to get something and he want off on an errand
15 and came back.
16 Q Now, you have videotaped people other than
17 the people here coming and going out of the Lisa
18 McPherson Trust, right?
19 A Yes.
20 Q Okay. Former Scientologists coming and
21 going out of the Lisa McPherson Trust, right, other
22 than the former Scientologists that are here?
23 A It is possible.
24 Q Okay. Now, which, if any, of the people in
25 the courtroom do you know to be suppressive persons?
322
1 MR. POPE: Your Honor, this is way past
2 any direct examination. I mean, you've given
3 him pretty wide latitude, but what does this
4 have to do with my direct examination?
5 MR. MERRETT: Your Honor, if he remains
6 subject to recalling, I don't have a problem.
7 THE COURT: Well, I don't know that he's
8 going to be subject to recall, so I'll have
9 to wait and see how this plays out.
10 MR. MERRETT: I'm not sure I understand.
11 I apologize. I think if you say he is --
12 THE COURT: Well --
13 MR. POPE: He's going to be here all
14 day.
15 THE COURT: I'll make him subject to
16 recall. Let's press on.
17 BY MR. MERRETT:
18 Q What was it that was being delivered at this
19 time?
20 A I believe it was a bread delivery.
21 Q Okay. It was a bread delivery -- there's
22 not a bakery there in the Clearwater Bank Building, is
23 there?
24 A Not exactly, no.
25 Q I guess my question is if the bread was
323
1 going in, it wasn't coming out, right?
2 A That is correct.
3 Q Okay. And was this bread coming from a
4 Scientology bakery somewhere?
5 A I doubt it. I don't have a clue actually.
6 (Whereupon, a pause in the proceedings took
7 place.)
8 Q Couple more questions. You signed an
9 affidavit in connection with this event?
10 A Yes.
11 Q Okay. What did you hear the policeman tell
12 Mr. Minton and myself?
13 A Well, actually I overheard him saying or
14 actually asking Mr. Minton if he was -- this was while
15 Mr. Minton was on the ladder. The police officer came
16 out and asked Mr. Minton if he had moved the camera or
17 if he took it down.
18 Q Uh-huh.
19 A Mr. Minton's reply was no.
20 Q Okay. Anything else that you heard the
21 policeman say?
22 A Nothing that comes to mind, but they did
23 have a -- they did talk for a little while.
24 (Whereupon, a pause in the proceedings took
25 place.)
324
1 Q Did you at any time hear the officer warn or
2 instruct myself and Mr. Minton to stop what we were
3 doing and leave?
4 A I didn't hear that. From what I could tell,
5 the sun was in the officer's line of view and he
6 couldn't really see because I saw him putting his
7 hands up trying to block the sun, so I don't think he
8 really saw what was going on up there.
9 Besides that, there was a person up there
10 kind of blocking the view, as well.
11 MR. MERRETT: Okay. May I approach the
12 witness, Your Honor?
13 THE COURT: You may, sir.
14 BY MR. MERRETT:
15 Q Let me show you a copy of the amended and
16 consolidated order to show cause that was issued on
17 the request of Scientology. If you would, kind of
18 flip through it. There is something I need to ask you
19 about in there.
20 (Whereupon, documents were reviewed.)
21 Here we go. Paragraph 3A down there at the
22 bottom. You see the last sentence there?
23 A Yes.
24 Q It says an off-duty police officer was also
25 there and after warning Mr. Merrett and Mr. Minton to
325
1 stop what they were doing and leave, he later made a
2 police report of the incident.
3 Now, were there anybody else, any other
4 Scientology security guards in the area, in the
5 immediate area?
6 A No.
7 Q Okay. Was there any other -- anybody else
8 that you were able to see in a position to hear what
9 the officer was saying?
10 A From Scientology?
11 Q Right, right, other than the people who
12 you've talked about being out there messing around
13 with the ladder and what not?
14 A Possibly the guy receiving the delivery. He
15 might have heard something.
16 Q Okay. And now there is actually two, and
17 I'm not talking about two cameras in a box. There is
18 actually two separate camera deals here. One camera
19 and there is another camera that's pointed south.
20 A Yeah, one going southbound and one pointing
21 northbound.
22 Q Right, and the southbound camera in a
23 separating housing, right?
24 A Above the other one, correct.
25 Q Okay. And does either of those cameras have
326
1 sound capability?
2 A I don't know.
3 Q Okay. Have you ever heard a sound track
4 tape from either of those cameras?
5 A Never.
6 Q Okay. But you don't -- you're not the
7 source of the allegation that the officer told
8 Mr. Minton and myself to quit what we were doing and
9 leave. That must have come from somewhere else,
10 right?
11 A You mean the warning?
12 Q Yeah, to quit what you're doing and leave?
13 A Well, when I spoke to the officer after he
14 talked to you all, that's what he told me.
15 Q Uh-huh.
16 A That's what he told me, that he warned you
17 and that you complied and went back inside.
18 Q Okay. So you may have said that the officer
19 warned Mr. Minton and myself to quit what we were
20 doing and leave?
21 A I didn't hear him directly telling
22 Mr. Minton or yourself that. That's simply what the
23 officer told me.
24 Q Okay. And this set of events that you're
25 talking about, it only happened once, right? There's
327
1 only been one incident involving that camera and
2 Mr. Minton and me and all these people?
3 A Correct.
4 MR. MERRETT: I don't believe I have
5 anything further, Your Honor.
6 THE COURT: Okay. Mr. Howie?
7 CROSS-EXAMINATION
8 BY MR. HOWIE:
9 Q May it Please the Court, Mr. Avila, you
10 started videotaping right after you observed this
11 activity around the camera, correct.
12 A Right.
13 Q So, virtually everything that you observed
14 is on the videotape that you, yourself, made?
15 A Most of it, for the most part the -- I
16 guess, when you guys brought the ladder or, I'm sorry,
17 Mr. Minton and Mr. Merrett brought the ladder out and
18 started climbing it, that's not on the tape, I don't
19 believe.
20 Q But soon after Mr. Merrett started climbing
21 on the ladder, that's when you started filming?
22 A Yeah, when he was on the ladder and he was
23 actually grabbing and tampering with the camera,
24 that's on the tape.
25 Q So virtually everything that you testified
328
1 here concerning this incident is on your videotape?
2 A Right, except I didn't videotape the officer
3 telling me, you know, what he did.
4 Q Okay. How many times have you had an
5 opportunity to observe the tape that's being offered
6 in evidence?
7 A I believe two times.
8 Q And it's your testimony that that tape
9 fairly and accurately depicts the events that you,
10 yourself, observed, correct?
11 A Right.
12 Q And being a videotape with audio sound on
13 it, would it be your position that if the tape varies
14 from your testimony, it's the tape that's to be
15 believed and not your testimony?
16 A I don't get your question.
17 Q All right. If your testimony varies from
18 what's on the tape, it's the tape we are to believe;
19 is it not?
20 A I believe they are both one in the same.
21 Q All right, but any variation between your
22 testimony and the tape you would agree that the tape
23 most fairly and accurately depicts this better than
24 your memory does?
25 A I believe my memory is just as good.
329
1 Q All right. So it's your testimony that
2 everything you testified to will be backed up and
3 verified by the videotape you took?
4 A Exactly.
5 Q Without exception?
6 A Pretty much, yeah.
7 Q Now, concerning the spy camera that's on the
8 side of building that you say was tampered with?
9 A It's actually a security camera.
10 Q A security camera?
11 A Yeah.
12 Q Is it on only when you need security or is
13 it on all the time?
14 A It's on 24 hours, seven days a week.
15 Q And it's pointed towards the Lisa McPherson
16 Trust?
17 A Well, it's northbound pointing at the
18 sidewalk in that direction.
19 Q Right. Anybody coming and going from the
20 Lisa McPherson Trust would be in the view of that
21 camera?
22 A I actually don't know. I haven't seen it.
23 I've just seen the camera there. I don't know what it
24 sees.
25 Q Was this, in fact, being -- to your
330
1 knowledge was this camera being operated at the time
2 that all these events occurred?
3 A The camera is on 24 hours a day, yes.
4 Q And to your knowledge the Church of
5 Scientology has the ability to record or make a
6 videotape of anything that comes within view of that
7 camera?
8 A I'm not actually sure of that camera. They
9 do have the capability to do that in different
10 cameras. I'm not sure about that one.
11 Q Have you ever observed any videotape made by
12 this particular camera that you say is affixed to this
13 wall?
14 A I couldn't say. I've seen many tapes. I
15 don't know. I can't tell for sure if it's that
16 camera.
17 Q And specifically do you recall seeing any
18 videotape taken by the cameras affixed to the wall of
19 this incident on December 4 that you've just
20 described?
21 A Like I said, I'm not sure if it was that
22 camera or another camera.
23 Q But you have seen videotapes of the incident
24 other than the videotape you made?
25 A I don't recall for sure.
331
1 Q You're not certain now?
2 A I can't recall if I saw another videotape
3 besides my own.
4 Q Is it your testimony, yes or no, that you
5 have seen other videotapes of this December 4 incident
6 other than the one that you, yourself, made?
7 A Yeah, I believe so.
8 Q It's your testimony that since all those
9 videotapes exist, your don't know which camera made
10 those videotapes?
11 A Correct.
12 Q So you don't know whether it's the camera
13 that was affixed to the call that made this other
14 videotape that you saw or some other camera?
15 A No, I know 100 percent that the tape that I
16 filmed was from a camera which I had in my hand.
17 Q I'm talking about the other videotape that
18 you just testified that you have seen?
19 A I just said that I didn't think I saw
20 another one besides my own tape.
21 Q Oh, besides your own tape?
22 A I saw my tape.
23 Q All right.
24 A A few times and then I don't recall seeing
25 another tape besides my own.
332
1 Q Do you have knowledge that there are any
2 other tapes of this incident?
3 A I have no knowledge of that. Like I said, I
4 don't know if that camera is recording or not. I know
5 that many cameras do have the capability to record. I
6 don't know -- I'm not specifically sure about that
7 one.
8 Q Now, you said that you've seen this tape
9 that you made at least a couple of times, correct?
10 A Right. About twice.
11 Q And you have listened while watching the
12 tape you have listened to the audio portion of that
13 tape at the same time, haven't you?
14 A Yes.
15 Q And it would be your testimony that the
16 audio portion of that tape fairly and accurately
17 depicts what was said within range of the microphone
18 of your camera?
19 A Yes.
20 Q All right. And do you have the capacity to
21 turn up any volume or switch that increases the
22 ability of the microphone of your cameras to pick up
23 sound?
24 A No, I don't.
25 Q It's a fixed volume situation?
333
1 A Yeah. I mean there is a switch for more
2 volume, but it just raises all the sounds like a
3 regular TV set.
4 Q Is it your testimony that you were in your
5 position that day, December 4, able to hear things
6 that you determined later on were not picked up by the
7 video microphone?
8 A I'm not sure exactly all the sounds the
9 microphone picked up, but it must have been able to
10 pick up what I just described.
11 Q So, anything that you have heard would have
12 been picked up on the microphone?
13 A Not necessarily, because the microphone is
14 aiming in one direction and I can hear all around
15 while the microphone probably doesn't have that
16 capability.
17 Q Well, you say the microphone is aiming in
18 one direction. It's aimed in the direction where you
19 point the camera, correct?
20 A Correct.
21 Q All right, and my question for you is, was
22 the microphone capable of picking up everything in
23 front of the camera that you, yourself, were able to
24 hear?
25 A I don't know how much the microphone can
334
1 pick up, but it should be there.
2 Q All right, and you have listened to this
3 tape, correct?
4 A Correct.
5 Q And everything that occurs in front of the
6 camera as far as any sound matches your own
7 recollection of what was said and what was done,
8 correct?
9 A That's correct.
10 MR. HOWIE: Thank you. I don't have any
11 further questions.
12 THE COURT: All right. Mr. Merrett,
13 before I go back over to Mr. Pope, do you
14 have any questions in light of what Mr. Howie
15 asked?
16 MR. MERRETT: Nothing further in
17 relation to what we've covered, Your Honor.
18 THE COURT: Okay. Mr. Pope, over to
19 you.
20 REDIRECT EXAMINATION
21 MR. POPE: I would offer into evidence
22 the videotape that he identified.
23 THE COURT: It will be received. Hand
24 it up here and let me mark it, please.
25 (Exhibit was marked and admitted into
335
1 evidence.)
2 Who has that last tape?
3 THE WITNESS: Here it is.
4 THE COURT: Thank you. What about the
5 court reporter?
6 MR. MERRETT: Judge, I think counsel
7 will agree --
8 MR. POPE: She doesn't need to try to
9 take this down.
10 THE COURT: Okay. As long as it is in
11 evidence it's going to be in the court file.
12 (Whereupon, the videotape was played.)
13 MR. POPE: May he just stay right there?
14 THE COURT: As long as everybody speaks
15 up.
16 MR. POPE: May I approach the witness?
17 THE COURT: You may, sir.
18 BY MR. POPE:
19 Q Mr. Avila, what is this?
20 A This is the photograph of the northeast end
21 of the Clearwater Bank Building. It shows a portion
22 of the building which is between the LMT and the
23 Clearwater Bank Building.
24 Q Does it show the camera?
25 A It shows the camera that was tampered with,
336
1 yes.
2 Q Shows both cameras?
3 A Correct.
4 Q Is this a true and accurate depiction of the
5 present configuration of the cameras?
6 A Uh-huh. Yes.
7 Q When was this picture taken?
8 A That was taken on the same day, December 4,
9 2000.
10 MR. POPE: Your Honor, I would offer
11 this into evidence.
12 THE COURT: Okay. Mr. Howie,
13 Mr. Merrett, you have copies?
14 MR. HOWIE: Yes.
15 MR. MERRETT: Yes, sir.
16 THE COURT: And you know what he has in
17 his hand?
18 MR. HOWIE: Yes, sir.
19 MR. MERRETT: Yes.
20 THE COURT: All right. Any objection.
21 MR. MERRETT: I have some brief voir
22 dire. I do have an objection but voir dire
23 before the objection.
24 THE COURT: Proceed.
25
337
1 VOIR DIRE EXAMINATION
2 BY MR. MERRETT:
3 Q This was taken after the camera had been
4 reset by the technician, correct?
5 A I couldn't say for sure.
6 Q It was certainly after the events depicted
7 on the videotape, correct?
8 A Well, I can't say because I didn't take the
9 picture.
10 Q Then you can't say when it was taken, can
11 you?
12 A I know that someone took the picture that
13 same day because I saw it that same day. Yes, I did
14 see the picture after this event.
15 Q All you are able to tell us is that this
16 photograph was taken not later than December 4,
17 correct?
18 A Correct.
19 Q And that is reflects the condition at the
20 present time, correct?
21 A Right, on December 4.
22 Q Okay. But obviously the picture was not
23 taken prior to December 4, right?
24 A Right.
25 Q How do you know that?
338
1 A Because I saw the picture earlier the same
2 day. I also saw the picture before December 4 and on
3 December 4. I'm sorry, not a picture; by myself,
4 being in the area. I know how it looks now and I know
5 how it looked back then and that's how it looked back
6 then.
7 Q Okay.
8 A Even prior to December 4.
9 Q Okay. Let's make it real clear.
10 A Yes.
11 Q Your under oath.
12 A Yes.
13 Q You're testifying this is exactly the
14 position of that camera prior to December 4?
15 A Correct.
16 Q And you looked at the picture?
17 A Right.
18 Q There is no question in your mind and no
19 problems with --
20 A As far as I can remember that's the way it
21 looked even prior to December 4. Now, it's a little
22 different. Now, it's a little bit more towards the
23 south.
24 Q Right, because it's been swung back
25 towards --
339
1 A Going back south. Actually Officer Harbert
2 recommended we move it back some.
3 Q Okay, so it wasn't crossing over the lines
4 between the buildings?
5 A His recommendation was that it was too close
6 so he wanted us to move it back.
7 THE COURT: Okay. Too close to what?
8 THE WITNESS: To that rat bait building.
9 THE COURT: Okay.
10 THE WITNESS: However, that's how I
11 recall it on that day and before that.
12 MR. MERRETT: I don't have any
13 objection, Your Honor.
14 THE COURT: Mr. Howie.
15 BY MR. HOWIE:
16 Q Yes, if I may. Mr. Avila, it's your
17 testimony that this picture was taken on December 4,
18 the same day as this incident?
19 A Right.
20 Q And you, yourself, did not observe this
21 picture being taken but you saw this picture that same
22 day, December 4?
23 A Right.
24 Q And you saw the picture several hours after
25 the incident depicted on the video camera, correct?
340
1 A Right. Now, there is a possibility -- see,
2 I don't know who the photographer is, so I did see
3 people around who were filming. I don't know if that
4 came from one of those guys or who it came from.
5 Q But you would agree that this picture, you
6 did not see it until several hours after this incident
7 that you videotaped, correct?
8 A About an hour or so, yes.
9 Q An hour or so?
10 A Maybe a couple hours, yeah.
11 Q Maybe several hours.
12 A I would say a couple hours.
13 Q Do you recall seeing the videotape with the
14 officer standing there in the sunlight?
15 A Uh-huh.
16 Q Do you recall --
17 A Yeah, that was 11:30 in the morning.
18 Q 11:30 in the morning?
19 A Right.
20 Q And you observed the officer had to squint
21 to shield his eyes?
22 A Yes.
23 Q Because the sun was directly above him,
24 correct?
25 A Right.
341
1 Q And isn't it a fact that this wall depicted
2 in the photograph is on the east side of the building,
3 correct?
4 A Right.
5 Q And isn't it a fact that this building is
6 now entirely in the shadows, correct?
7 A Correct.
8 Q And isn't it a fact that this awning over
9 the electrical box here in fact shows the angle of the
10 sun from the west, correct?
11 A Correct.
12 Q And is it correct to assume then that this
13 picture was taken hours after the incident that you
14 saw?
15 A Yes, sir.
16 MR. HOWIE: Thank you. Nothing further.
17 I have no objection.
18 THE COURT: All right. It will be
19 received. Let me get it marked.
20 (Plaintiff's Exhibit Seven was admitted
21 into evidence.)
22 All right, Plaintiff's Exhibit Number
23 Seven, this photograph, is in evidence.
24 MR. POPE: Your Honor, I would continue
25 with Mr. Avila, but at this point in time I'm
342
1 switching from the amended and consolidated
2 order to show cause to the second one which
3 deals with Mr. Minton, Lerma, Enerson,
4 Bezazian and Gogolla.
5 THE COURT: Wait a minute. Before we
6 make that switch, let me do something, okay.
7 Mr. Merrett.
8 MR. MERRETT: Yes, sir.
9 THE COURT: Do you have any cross,
10 anything else that you want to ask regarding
11 this incident, the camera, the ladder the
12 photograph or the tape.
13 MR. MERRETT: Just one, Your Honor.
14 THE COURT: You may.
15 MR. MERRETT: Thank you. Do you need
16 this?
17 RECROSS-EXAMINATION
18 BY MR. MERRETT:
19 Q No, sir. Mr. Avila, everything that you say
20 that you saw, myself and Mr. Minton, Mr. Ward,
21 Mr. Keller, Mr. Oliver, Ms. Bennett, Mr. Prince,
22 everything that said that you saw those people doing
23 on December 4 in connection with this camera is on the
24 tape, right?
25 A Should be.
343
1 Q I'm sorry?
2 A I believe so, yes, sir.
3 MR. MERRETT: Okay. I don't have
4 anything further, Your Honor.
5 THE COURT: Mr. Howie?
6 MR. HOWIE: Nothing further, Your Honor.
7 THE COURT: Okay, Mr. Pope, anything in
8 light of those questions?
9 MR. POPE: Nothing further, Your Honor.
10 THE COURT: Okay.
11 MR. POPE: I would however be grateful
12 for a five minute recess.
13 THE COURT: All right. Yes, sir. Let's
14 do this. Let's take at least a 15 minute
15 recess. We've been going a while. Let's
16 take an afternoon break. I'll make it 20
17 minutes.
18 MR. MERRETT: Your Honor, could I
19 mention one thing before we do that?
20 THE COURT: Sure.
21 MR. MERRETT: There are a substantial
22 number of people named to respond to the
23 order to show cause. I believe we started on
24 Scientology's case at 1:00 or 1:30 yesterday
25 afternoon and consumed the balance of the
344
1 day. It's now three o'clock.
2 THE COURT: Gentlemen, let me tell you
3 all something. I'm aware that one, I have a
4 full courtroom. There are still a lot of
5 people here.
6 Two, we went a full day yesterday.
7 We're going to go -- we'll get in about five
8 or six hours today and so that there is no
9 misunderstanding, hear me. We will pick
10 this up at nine o'clock tomorrow morning, go
11 all day tomorrow and go all day Tuesday. I
12 can't go all day Tuesday, but we'll go up to
13 2:30 on Tuesday and then we'll pick it back
14 up on Thursday if we have to.
15 I realize that this is my jury trial
16 week, but the way my calendar is breaking
17 this is my number one case and we will
18 continue so the people that have flown in
19 won't have to fly back out of town or
20 anything else and we will, I'm going to say
21 this one more time, we will, W-I-L-L, pick
22 it up at nine o'clock tomorrow morning.
23 Thank you all very much.
24 (Thereupon, a short recess was taken, after
25 which the proceedings continued.)
345
1 THE COURT: All right. Are we ready
2 now? Mr. Pope said that he wants to shift
3 gears here and go into a new area and so
4 let's do that.
5 MR. POPE: All right.
6 THE COURT: Now, this witness, we need
7 the witness back on the stand.
8 MR. POPE: We do.
9 THE COURT: We're going to still use the
10 same witness. Come on back up and have a
11 seat on the stand, sir. Mr. Pope. Where are
12 we going on with this one?
13 MR. POPE: This is the second order to
14 show cause that is directed at Mr. Minton,
15 Mr. Lerma, Mr. Enerson, Ms. Bezazian and
16 Ms. Gogolla.
17 THE COURT: Do you have a copy handy?
18 MR. POPE: I do, Your Honor.
19 THE COURT: Okay. Proceed.
20 DIRECT EXAMINATION
21 BY MR. POPE:
22 Q Mr. Avila, I want to direct your attention
23 to December 1, 2000, specifically to Mr. Randy
24 Enerson. Did you observe Mr. Enerson on that date?
25 A Yes, I did.
346
1 Q Would you tell the court what you observed?
2 A I observed him picket in front of the
3 Clearwater Bank Building. This was around five in the
4 afternoon. He had a picket sign up in the air. He
5 was on the right in the sidewalk right in front of the
6 Clearwater Bank Building and in the injunction that is
7 designated as a no picket sign. I'm sorry, I mean
8 picket place.
9 Q All right. Did you make a video of this?
10 A Yes, I did.
11 Q And is the video a true and accurate
12 representation of what you saw?
13 A Yes.
14 MR. POPE: Let me get that video, if I
15 may, Your Honor?
16 THE COURT: Okay. Did you get the
17 video?
18 MR. POPE: Yes, thank you.
19 THE COURT: Proceed.
20 BY MR. POPE:
21 Q Mr. Avila, that video that you just
22 described?
23 A Yes, sir.
24 MR. POPE: Offer it in evidence, Your
25 Honor?
347
1 THE COURT: Mr. Merrett, would you like
2 to voir dire?
3 MR. MERRETT: That's okay, if this is
4 what I think it is and if it isn't, I'm sure
5 Mr. Pope would tell me.
6 THE COURT: All right. Hold on then,
7 folks, while this gets in evidence.
8 (Plaintiff's Exhibit Number Eight was
9 marked for identification.)
10 MR. MERRETT: If I may inquire of
11 Mr. Pope real briefly, Your Honor?
12 THE COURT: Please.
13 MR. MERRETT: That's the one that's
14 marked Enerson, 12/1 or whatever?
15 MR. POPE: I believe so.
16 THE COURT: December 1, 2000 is what's
17 on this.
18 MR. MERRETT: Fine.
19 THE COURT: All right. This is in
20 evidence. It is Plaintiff's Exhibit Number
21 Eight.
22 MR. POPE: May I publish it, Your Honor?
23 THE COURT: You may, sir.
24 MR. POPE: You want it flipped around
25 that way, Your Honor?
348
1 THE COURT: Yes, please.
2 MR. POPE: You want to step down, sir.
3 THE COURT: I coming. Hold on. Give me
4 a chance to get there.
5 (Whereupon, the videotape was played.)
6 THE COURT: All right.
7 BY MR. POPE:
8 Q Which one is Randy Enerson?
9 A He's the one with the picket sign up in the
10 air.
11 Q And the red shirt on?
12 A Correct.
13 MR. POPE: I don't have any further
14 questions with respect to this particular
15 item, Your Honor.
16 THE COURT: Okay. Mr. Merrett.
17 MR. MERRETT: Your Honor, I'm not sure
18 if there is to be further direct examination
19 of Mr. Avila on different subjects?
20 MR. POPE: Yes.
21 CROSS-EXAMINATION
22 BY MR. MERRETT:
23 Q Thank you, Your Honor. Mr. Avila, what we
24 saw on the tape is what you saw, right.
25 A Yes, I filmed that.
349
1 Q That's all there is, right?
2 A Well, there is more footage that was taken
3 out.
4 Q Okay. Who took it out?
5 A I'm not sure.
6 Q It wasn't you, though, right?
7 A I wasn't me.
8 Q Is there a master tape editor at Scientology
9 or is this just done by whoever is standing there
10 whenever a tape needs to be cut up?
11 A I don't know who does it.
12 Q But you're not involved with that?
13 A No.
14 Q Do you know if there is a central office, if
15 it's Mr. Shaw's responsibility, Mr. Miscavige, is it
16 Mr. Kellerhoff, who is it that does that?
17 A I said that I don't know.
18 Q Okay. So what you know is that you had a
19 videotape that was a certain length containing certain
20 things and you turned it to Mr. Kellerhoff?
21 A No, well sometimes. I turned it in to him a
22 couple times. Usually I turn it into reception.
23 Q Okay. Reception being the front desk at
24 Ft. Harrison or what?
25 A The reception at the office for public
350
1 relations.
2 Q Which is part of the Office of Special
3 Affairs?
4 A I believe so, yes.
5 Q Okay. You turn it in there and then the
6 next time you see it's been cut up, right?
7 A Sometimes.
8 Q And you don't know who did it or what
9 happened in the meantime?
10 A I don't know who cut it up.
11 Q Okay. Now. all that is under Mr. Shaw's
12 jurisdiction, right?
13 A I don't know who cuts the tape up and I
14 don't know who edited it.
15 Q But the Office of Special Affairs and all
16 that, is Mr. Shaw and the people that work for him are
17 the people that you work for, right?
18 Now, the part missing from that tape is
19 Mr. Enerson and the other people who were with him
20 just going right on into the intersection of Cleveland
21 and Waterson and hanging a left and going on down
22 Waterson towards LMT, right?
23 A Actually I'm not sure if they continued down
24 the sidewalk. I believe you're right.
25 Q And went back to the LMT, as far as you
351
1 recall?
2 A Yes.
3 Q All right. Do you recall where they were
4 coming from?
5 A I know they were coming back from a picket.
6 I don't know -- I believe it was the Coachman
7 Building.
8 Q Somewhere down --
9 A Somewhere down south of that property.
10 MR. MERRETT: Okay. I don't have
11 anything further.
12 THE COURT: Mr. Howie?
13 MR. HOWIE: I have no questions, Your
14 Honor.
15 THE COURT: All right. Mr. Pope.
16 MR. POPE: I would ask the witness to
17 take the witness stand again, Your Honor.
18 THE COURT: Okay. Let's go back that
19 way.
20 MR. POPE: While he's taking the stand,
21 Your Honor, I'm going to be asking him about
22 I think four different episodes that occurred
23 on January 6 and 7, 2001, relating to the
24 second order to show cause and my plan is to
25 examine him orally as to each of those events
352
1 and play the video.
2 THE COURT: Okay.
3 DIRECT EXAMINATION
4 BY MR. POPE:
5 Q Mr. Avila, call your attention to January 6,
6 2000 about four clock in the afternoon?
7 THE COURT: Wait a minute. January 6 of
8 what year?
9 MR. POPE: I'm sorry, 2001. I misspoke.
10 THE COURT: I was going to say, let's
11 not waste time on 2000.
12 MR. POPE: I misspoke. We're not going
13 to waste time on it.
14 THE COURT: Thank you, sir. Go ahead.
15 BY MR. POPE:
16 Q January 6, 2001 about 4:00 PM with respect
17 to Mr. Minton, Mr. Merrett, Mr. Enerson, Mr. Lerma,
18 did you observe them?
19 A Yes, they were picketing. This was in the
20 Coachman Building on the south side and Mr. Minton had
21 a pole with, I believe it was an extended pole with a
22 copy of the injunction on the end of it and he had a
23 horn on the pole making noises and he also had a loud
24 megaphone which he was speaking through as part of the
25 demonstration and with him was -- I'm sorry, this is
353
1 December 6?
2 Q No, January 6, 2001?
3 A January 6?
4 A Right.
5 Q Okay.
6 A Yeah, so it was that and he Anita Gogolla
7 was there picketing with the sign and Enerson was also
8 present with a sign.
9 THE COURT: Slow down just a minute.
10 Robert Minton and who was the other one?
11 THE WITNESS: Anita Gogolla.
12 THE COURT: I'm sorry?
13 THE WITNESS: I'm not sure of the
14 pronunciation.
15 MR. MERRETT: I can spell it for the
16 court.
17 THE COURT: I've got it; G-O-G-O-L-L-A,
18 is that it, Anita?
19 THE WITNESS: Gogolla.
20 MR. MERRETT: That's it.
21 THE COURT: All right. And then the
22 other one was who?
23 THE WITNESS: Enerson, Mr. Enerson was
24 there.
25 THE COURT: E-N-E-R-S-O-N?
354
1 THE WITNESS: Correct.
2 THE COURT: Okay. And who else?
3 THE WITNESS: And Arnie Lerma was there.
4 THE COURT: Arnaldo, A-R-N-A-L-D-O
5 Lerma, L-E-R-M-A; is that it?
6 THE WITNESS: Correct.
7 THE COURT: Okay.
8 BY MR. POPE:
9 Q Was Mr. Merrett present?
10 A We was present, as well.
11 Q All right. At any time did they get into
12 the driveway of the parking lot south of --
13 A Yeah, they did. During the picket and
14 protest they were in fact protesting in the entrance
15 of the driveway to the Coachman Building which is also
16 prohibited by the injunction.
17 MR. MERRETT: Judge, I'm going to have
18 to object and ask the court to instruct the
19 witness not to make commentary on legal
20 conclusions.
21 THE COURT: Mr Pope.
22 MR. POPE: Your Honor, as I recall,
23 Mr. Merrett was asking one of these witnesses
24 yesterday to show where -- point out in the
25 injunction where the person was.
355
1 I mean this gentleman and the police
2 officers and everybody concerned is supposed
3 to know the terms of it so they can comply
4 with it. It seems to me he ought to be able
5 to say that.
6 MR. MERRETT: If I may, as a fact
7 witness, rather than a visiting legal
8 scholar, Mr. Avila's purpose is to tell the
9 court what he saw, where people were and what
10 they were doing. Not whether those actions
11 were violations of the injunction or
12 violations of anything else.
13 THE COURT: I would agree with that as
14 far as the fact witness and everything else.
15 If Mr. Pope wants to establish a little
16 predicate here, that's fine.
17 BY MR. POPE:
18 Q Where you say you saw them with respect to
19 the driveway?
20 A Right on the driveway.
21 Q All right. And did they move to any other
22 location after they were there?
23 A They continued northbound. Also Mr. Minton
24 was with his pole, he was extending it into our
25 property with that injunction at the end of the pole.
356
1 Q Okay.
2 A And that incident occurred just moments
3 before they were on the driveway.
4 Q Did you video this?
5 A Yes, I did.
6 Q Is the video you made a true and accurate
7 depiction of what you saw?
8 A Yes, sir.
9 Q Let me call your attention to the late
10 afternoon of January 6 with respect to Mr. Minton,
11 Mr. Lerma, Mr. Enerson and Mr. Merrett. Did you
12 observe them on January 6 of the late afternoon?
13 A Yes, sir.
14 Q What did you see?
15 A They were going northbound Waterson on the
16 east end of the street. Now, at one point Mr. Minton
17 and Mr. Merrett --
18 THE COURT: Wait a minute. Wait a
19 minute. Waterson?
20 THE WITNESS: Waterson Avenue, right
21 next to the Clearwater Bank Building.
22 BY MR. POPE:
23 Q And they were on the east side to start
24 with?
25 A Right. And then they crossed over onto the
357
1 west side of Waterson to the Clearwater Bank Building
2 and that was two individuals, Mr. Merrett and
3 Mr. Minton.
4 Mr. Minton had the pole extended up in the
5 air and he was waiving the injunction at the end of
6 the pole up to the second floor windows while at the
7 same time speaking through the megaphone, protesting.
8 Q Let me direct your attention to January 7,
9 2001 at about 5:50 PM. Did you observe Mr. Lerma,
10 Ms. Bezazian and Mr. Enerson?
11 A Yes, I did.
12 Q What did you see?
13 A They were again protesting. This was on
14 Pierce Street just north of the Ft. Harrison Hotel on
15 the sidewalk next to the property.
16 They had megaphones which they were yelling
17 things through and they were putting it right up to
18 the fence so that people inside the property could
19 hear exactly what that were saying.
20 Q Yelling into which property?
21 A Into the Church property, which is right
22 next to where they were.
23 Q And did Ms. Bezazian make any particular
24 reference to the injunction during this time?
25 A Yes, she did. She mentioned that and I
358
1 believe I'm saying this verbatim. She said per your
2 own stupid injunction. That's just -- I believe she
3 said that to say that's why they were there.
4 Q Okay. And did you video that?
5 A I did.
6 Q And is your video a true and accurate
7 depiction of what you saw?
8 A Yes, sir.
9 Q Did you video the previous episodes in which
10 you saw Mr. Minton with the pole up in the air on the
11 second floor, did you make a video of that on Bank of
12 Clearwater Building?
13 A Yes, I did.
14 Q Is that a true and accurate depiction of
15 what you saw?
16 A Yes, sir.
17 Q Now, let's go last to January 7, 2001 in the
18 evening on Waterson. Did you observe Mr. Minton
19 Ms. Bezazian, Mr. Lerma and Mr. Enerson at that time?
20 A Yes, I did.
21 Q What activity was going on relative to the
22 dining hall at that hour?
23 A Well, where he have the dinner mealtime
24 at -- that happened to be around 6:30 in the afternoon
25 which is when we have the mealtime and there is about
359
1 1500 or so people coming to eat at that time and there
2 is all the traffic in the street from the Church.
3 Q What did you observe Mr. Minton,
4 Ms. Bezazian, Mr. Lerma and Mr. Enerson doing?
5 A They approached the loading zone where the
6 buses load and unload the Church staff and they had
7 picket signs with them.
8 Mr. Minton had a megaphone and they
9 approached the officers which were off duty there and
10 Mr. Minton immediately starting yelling at them
11 telling them that they were part of the Church or
12 something to that effect and that they needed to
13 follow the injunction and stay ten feet away from them
14 and he proceeded to go -- at first he was on the
15 sidewalk and then he stepped off the sidewalk while
16 pointing at the officers and telling them that and
17 then a couple minutes later he again was on the
18 sidewalk -- I'm sorry, on the street again, where, you
19 know, cars are supposed to be passing by and an
20 officer told him he needs to get back on the sidewalk.
21 Well, he refused to follow the officer's
22 instructions and continued yelling at them from the
23 street. At that point one of the officers stepped up
24 closer to him and kept repeating himself that
25 Mr. Minton is to remove himself from the street and go
360
1 onto the sidewalk.
2 Then as Mr. Minton refused to do so and
3 started obscenities, and another officer who was off
4 duty at the same time approached him as well and they
5 both convinced him to go back on to the sidewalk where
6 he was supposed to be.
7 Q Is this the same event that Officer Harbert
8 testify to yesterday?
9 MR. HOWIE: Objection. Competence.
10 THE COURT: That's an interesting point.
11 Yes, sir, Mr. Pope.
12 BY MR. POPE:
13 Q Were you in the room yesterday when Officer
14 Harbert testified about that episode?
15 A Yes, I was sitting right over there.
16 Q Did you hear his testimony?
17 A I did.
18 Q This is the same episode you observed and
19 filmed?
20 A Yes, the same one.
21 Q All right. And the film you made of it, the
22 video you made of it, is that a true and accurate
23 depiction of what you saw?
24 A Yes, sir.
25 Q And heard?
361
1 A Yes.
2 MR. POPE: Your Honor, that covers the
3 episodes I would offer the videotape in
4 evidence.
5 THE COURT: Let me back up just a
6 minute. The one, January 6, 2001, the first
7 incident, approximately what time of the day
8 was that?
9 THE WITNESS: I'm sorry, January?
10 THE COURT: January 6, the first one.
11 THE WITNESS: I believe that was around
12 4:30 in the afternoon.
13 THE COURT: All right. And involved in
14 that was Mr. Minton, Gogolla, Bezazian,
15 Enerson, Lerma and Merrett; is that correct.
16 THE WITNESS: I don't believe Bezazian.
17 MR. POPE: I don't believe Bezazian was
18 there.
19 THE COURT: Okay. And that was -- where
20 was the location of that incident?
21 THE WITNESS: That was on the Coachman
22 Building on the south side.
23 THE COURT: Okay. Coachman Building,
24 south side?
25 THE WITNESS: Correct.
362
1 THE COURT: Okay. Hold on just a
2 minute. What do you mean, south side?
3 THE WITNESS: I'm referring to they were
4 on the sidewalk just south of the Coachman
5 parking lot, Coachman Building parking lot
6 which is owned by the Church.
7 THE COURT: I've got the colored
8 injunction here. I'd like to show it to him
9 and get him to -- do we have a copy that we
10 can put an X on it?
11 MR. POPE: Here's one.
12 THE COURT: Yeah, that's the Coachman
13 Building and this in the Bank of Clearwater
14 Building?
15 THE WITNESS: Correct. Now they were
16 offer here, over here on the south side here.
17 They protested around on this sidewalk here.
18 Now, where I -- then they went around the
19 corner here and this is the driveway I'm
20 referring to where they was protesting at.
21 That's right --
22 THE COURT: They were in the driveway?
23 THE WITNESS: In the driveway,
24 protesting, yelling through the megaphones
25 and the signs up in the air and so on.
363
1 MR. HOWIE: Thank you.
2 THE COURT: Okay. Thank you, sir.
3 THE WITNESS: You're welcome.
4 THE COURT: Just a minute.
5 THE WITNESS: And at the same time if I
6 may add, Mr. Minton had the pole into
7 the -- like trespassing our property line.
8 MR. HOWIE: Objection. Competence.
9 THE COURT: All right. Let's do this
10 now. Just a minute. On January 6, 2001,
11 later in the day and I think you said this
12 was in the Waterson area, there was another
13 incident. Who was involved in that?
14 THE WITNESS: That was Mr. Minton and
15 Mr. Merrett.
16 THE COURT: Just those two?
17 THE WITNESS: There was actually, I
18 believe it was the same people, Ms. Gogolla,
19 Arnie Lerma, Mr. Enerson, and I believe
20 that's it.
21 THE COURT: That was on the -- they
22 were -- where were they again? They were on
23 the Waterson area.
24 THE WITNESS: Waterson Avenue.
25 THE COURT: Waterson.
364
1 THE WITNESS: And initially they were on
2 the east end of the street. Then at one
3 point Mr. Minton and Mr. Merrett crossed the
4 street, Waterson Avenue and they placed
5 themselves adjacent to the Bank of Clearwater
6 Building.
7 THE COURT: They were on the sidewalk
8 adjacent to the Bank of Clearwater?
9 THE WITNESS: Correct.
10 THE COURT: That would be the west
11 sidewalk?
12 THE WITNESS: Correct. And Mr. Minton's
13 sign --
14 MR. HOWIE: Objection, Your Honor.
15 These are nonresponsive statements by the
16 witness.
17 MR. POPE: Your Honor, the witness was
18 answering the Court's questions about where
19 they were and what happened.
20 THE COURT: Okay. I'm just trying to
21 get down to complete my notes to what I heard
22 previously. All right. Go back to the
23 January 7, Pierce Street and who was involved
24 in that?
25 THE WITNESS: That was Tory Bezazian,
365
1 Randy -- I'm sorry, Arnie Lerma, Randy
2 Enerson, and that's it.
3 THE COURT: Where were they?
4 THE WITNESS: They were right here, on
5 this area here. There were three guys.
6 MR. HOWIE: Your Honor, may I have the
7 record reflect that he's three Xs within the
8 orange area along side Pierce Street.
9 THE COURT: Right. The record will so
10 reflect.
11 MR. HOWIE: Thank you.
12 THE COURT: Hold on now. Let me do my
13 notes.
14 (A pause in the proceedings took place.)
15 THE COURT: All right. Now later in the
16 day other the 7th of January, 2001 on
17 Waterson, who was involved in that?
18 THE WITNESS: That was Mr. Minton, Arnie
19 Lerma, Randy Enerson, and Tory Bezazian.
20 THE COURT: What were they doing?
21 THE WITNESS: They were protesting with
22 their picket signs and megaphones.
23 THE COURT: Where were they doing that?
24 THE WITNESS: On Waterson Avenue.
25 THE COURT: The street?
366
1 THE WITNESS: Actually they started out
2 on the sidewalk, on the east sidewalk. At
3 one point Mr. Minton went up on to the street
4 until he got directed off by the police
5 officers.
6 THE COURT: Did I understand you to say
7 Mr. Minton was the only one in the street?
8 THE WITNESS: Correct.
9 MR. MERRETT: And the others stayed on
10 the sidewalk on the east side of Waterson?
11 THE WITNESS: Correct.
12 (A pause in the proceedings took place.)
13 THE COURT: All right. Now you want to
14 show the video?
15 MR. POPE: I would offer it into
16 evidence, Your Honor.
17 THE COURT: All right. Plaintiff's
18 Exhibit Number Nine is in evidence.
19 MR. MERRETT: Your Honor, I was just
20 curious whether there was going to be an
21 opportunity for interposition for an
22 objection.
23 THE COURT: Yes, there will be. Go
24 ahead.
25 MR. MERRETT: Your Honor, this is a
367
1 single -- actually can I see the exhibit?
2 THE COURT: Sure you can. Here, take it
3 here.
4 (A pause in the proceedings took place.)
5 MR. MERRETT: Your Honor, I object to
6 the admissibility of this evidence on a
7 couple of grounds.
8 The first being that this videotape
9 fails to comply with the court's order
10 regarding production of videotapes which is
11 to be used in a party's case in chief in the
12 that the videotapes that were supplied to
13 Mr. Howie and myself of this event are not
14 this tape. They're tapes marked January 5,
15 6 and 7.
16 This is obviously another reedit by
17 wherever the reedit department is. This is
18 not, this is clearly not the tape that was
19 produced in purported compliance with the
20 court's order regarding production of tapes.
21 Additionally, the fact that it is now at
22 least at a bare minimum second or third or
23 fifth to twelfth generation edit, I mean
24 it's not admissible, but principally it
25 violates the court's order.
368
1 They were supposed to give us the exact
2 types that they were going to use and I
3 don't have any idea what this is because
4 this isn't even a duplicate what the sent
5 us.
6 MR. HOWIE: I join in the objection and
7 it is my recollection that I never received,
8 although I received many tapes from
9 Mr. Pope's office, I did not receive a tape
10 marked as this one is, January 6 and 7
11 events.
12 THE COURT: Mr. Pope.
13 MR. POPE: Your Honor, we produced to
14 them everything single bit if video footage
15 the we intend to use. Between the time we
16 produced it and today, for example that tape,
17 I eliminated the stuff on January 5 because
18 it wasn't pertinent to my case. I mean, I
19 produced it to them. What's left is on
20 there. What's left is the stuff on the 6th
21 and the 7th which they have.
22 I was trying to save time and instead of
23 looking at 20 minutes of videotape, maybe we
24 could cut it down to five or six.
25 The witness has testified as to the
369
1 events and he's testified that this is a
2 true and accurate reproduction and they have
3 it. They have every piece of video that --
4 they've got it. This is just a spurious
5 objection.
6 THE COURT: All right. Here's what I'm
7 going to do. I will step down, allow up you
8 to show it. Let them view it and see if that
9 is a composite of exactly what you have
10 already previously produced to them and
11 contains -- well, I'm not going to say
12 anything else. I'll let them look at it and
13 we'll wait and see what happens.
14 MR. MERRETT: I wonder if the witness
15 could also be directed to leave the courtroom
16 and placed under the rules of sequestration
17 during the pendency of this matter?
18 THE COURT: That's all right. We'll do
19 it. Mr. Bailiff, go with him out in the
20 hall. Gentleman, she's not going to be
21 taking anything down and she needs to change
22 her paper and get her machine reloaded and
23 lets do this. When you all get done looking
24 at it, take ten.
25 (Thereupon, Plaintiff's Exhibit Nine was
370
1 played out of the presence of The Court, after
2 which a short recess was taken, after which the
3 proceedings continued.)
4 THE COURT: Come back to the witness
5 stand, if you would, please, sir.
6 We took a recess to allow the attorneys
7 to look at the tendered video and comments?
8 MR. MERRETT: Your Honor, the objection
9 as I made was to the apparent disparity
10 between videotapes produced today and
11 videotapes produced previously is withdrawn.
12 THE COURT: Is withdrawn?
13 MR. MERRETT: Yes, Your Honor.
14 MR. HOWIE: We are withdrawing ours
15 also.
16 THE COURT: Can we proceed?
17 MR. MERRETT: Yes, sir.
18 THE COURT: Thank you very much.
19 Mr. Pope up.
20 MR. POPE: I wish to publish it, Your
21 Honor.
22 THE COURT: Okay. Now let me do this.
23 Did I get it marked? It's ready to go. It's
24 in evidence. Thank you.
25 MR. POPE: Your Honor, with your
371
1 permission, since there are lot of different
2 people involved I may freeze this from time
3 to time so he can identify who these folks
4 are with the court's permission.
5 THE COURT: Would you do that, please?
6 That way everybody can keep track of what's
7 going on.
8 MR. MERRETT: I ask as we have been
9 doing earlier during the day that we
10 bifurcate cross-examination so the witness
11 can be examined on his recollection prior to
12 viewing the videotape.
13 THE COURT: I don't have a problem with
14 that. Just tell me, you all let me know as
15 we go to each event and when you want to a
16 cross and do everything, okay, and let's you
17 and I go back down there. We'll shift gears
18 again.
19 CROSS-EXAMINATION
20 BY MR. MERRETT:
21 Q Mr. Avila, I want to ask you first about the
22 first incident that you testified to -- you can stay
23 seated if it's all right for the court.
24 THE COURT: Let him come up. And just
25 so nobody gets the wrong impression here,
372
1 inasmuch as this witness as been up, down,
2 back, forward, done a lot of walking and
3 everything else and it is a little bit warm
4 in here. I did notice that he had his coat
5 off but I elected not to make an issue of it
6 because of the moving around so don't anyone
7 try to take advantage of it.
8 BY MR. MERRETT:
9 Q The first incident you testified occurring
10 in the south side of the Coachman Building, that was
11 the afternoon of January 6 of this year; is that
12 right?
13 A Could you repeat that?
14 Q The first incident that you testified to
15 regarding this videotape occurred on the afternoon of
16 January 6, right?
17 A Right.
18 Q Okay. And the event that you're describing
19 began on the south side of the Coachman Building; is
20 that right?
21 A Correct.
22 Q And let's see. So let me ask you first off
23 the initial event that you're talking about occurred
24 in this area here, correct?
25 A Correct.
373
1 Q Thank you. I'm putting diagonal lines or
2 actually making cross hashes through there. Now, this
3 is -- I'm going to show you Defendant's Number One for
4 identification.
5 Do you recognize that as being the
6 attachment to the injunction that depicts the Coachman
7 Building?
8 A Correct. I didn't see this arrow here.
9 Q Okay. I understand. Just so you know,
10 that's where a couple police officers marked on them.
11 A Okay.
12 Q Yesterday.
13 A Okay.
14 Q As far as the south side of Coachman on the
15 sidewalk adjacent to Park Street, that's the area that
16 you're talking about, correct?
17 A Correct.
18 Q And that is the area which on Defendant's
19 Exhibit One for identification is colored as an orange
20 area, correct?
21 A Correct.
22 Q Okay. And the driveway off the alley on the
23 west side -- that's east side of the Coachman parking
24 lot, is that accurately depicted there?
25 A Not on your drawing it's incorrect.
374
1 Q Okay. The tell me about the map on the
2 injunction?
3 A That is it about right here. The map on the
4 injunction is pretty accurate.
5 Q Okay. So what we've gotten is there is an
6 alley that comes through this way, right?
7 A Right.
8 Q And you can turn into the alley and then in
9 the parking lot; is that correct?
10 A Correct.
11 Q Okay.
12 A I would move that entranceway a little bit
13 up.
14 Q Okay.
15 A Right.
16 Q All right. And what exactly was Ms. Gogolla
17 doing?
18 A She was protesting on the south side where
19 you have you the Xs mark.
20 Q Okay, so Gogolla -- what did she have in her
21 hand?
22 A Picket sign.
23 Q Anything else?
24 A She might have had something else. I recall
25 only the picket the sign.
375
1 Q Okay. And Mr. Lerma?
2 A He had a megaphone and possible a picket
3 sign.
4 Q Okay. And let me see, Mr. Enerson?
5 A Same as Lerma.
6 Q Okay.
7 A I don't recall if they each had their own
8 megaphone but I know they at least traded it off it
9 they didn't their own megaphone.
10 Q And Mr. Minton?
11 A He had a megaphone and a pole.
12 Q Okay.
13 A Which I would say is about maybe ten feet
14 long.
15 Q Okay. And you said that I was there? What
16 was I carrying?
17 A You weren't carrying anything.
18 Q Cigar, maybe?
19 A Yeah, maybe you lit a cigar at one point.
20 Q Okay. Now, the videotape that you have
21 identified, is it a complete and continuous videotape
22 from your camera?
23 A Yes.
24 Q Okay.
25 A Now, I'd like to -- the extras that was --
376
1 Q Right, I understand that. Some stuff from
2 January 5 I believe was deleted?
3 A Right.
4 Q Okay. My question to you, though, is this.
5 As far as what it show is what's on that tape
6 everything that you filmed in th same continuous
7 sequence?
8 A Yes.
9 Q Okay. Did you stop filming at any time
10 after you started filming them during the first
11 incident picketing on the sidewalk on the south side
12 of the Coachman Building?
13 A I don't recall exactly, but there is a
14 possibility.
15 Q Why would you have stopped filming?
16 A Well, I believe they were there for an
17 extended period of time and I only have a 30 minute
18 tape.
19 Q Okay. Now, you actually had come from as
20 they had come from, around on Waterson Street,
21 correct?
22 A Yeah, I believe they walked out of the LMT
23 Building.
24 Q You had started from somewhere over there
25 and come to the Coachman to observe what they were
377
1 doing, correct?
2 A Correct.
3 Q Okay. And you continued and I don't mean to
4 use this as a loaded word, you continued to follow
5 them or keep them in sight until they returned th the
6 LMT, correct?
7 A Right.
8 Q And that included videotaping from inside
9 this parking lot; is that right?
10 A Yeah, I positioned myself in the park lot.
11 Q Okay. And that also included -- let's see
12 if I've got this right. That also included
13 videotaping from somewhere here north of Pierce Street
14 them across Ft. Harrison Avenue south?
15 A Coming south.
16 Q Well, okay, now here's what I mean. You
17 videotaped them -- well, you may have been south of
18 them. At some point you made videotapes of these
19 people when these people were in front of where the
20 super -- what is it called?
21 A You mean the construction site?
22 Q Yeah.
23 A I call it the construction site.
24 Q Okay. That's the Super Power Building
25 eventually?
378
1 A I believe so.
2 Q Okay. You did make a videotape of them
3 picket and doing whatever in front of the Super Power
4 Building, right?
5 A On the sidewalk, yeah.
6 Q Okay. And so the references in the
7 affidavit and the motion and the order to show cause
8 to people picketing in front of the Ft. Harrison,
9 they're not on the sidewalk adjacent to the hotel, are
10 they?
11 A No, they're across the street.
12 Q Okay. So it is correct that at no time
13 during the what is the 6th and 7th of January did you
14 observe any people that you mentions on the sidewalk
15 which is on Ft. Harrison Avenue adjacent to the hotel,
16 right?
17 A Correct.
18 Q Okay. You also -- oh, the megaphones that
19 you talked about, these are not electrical devices,
20 are they?
21 A I have no idea.
22 Q Okay. Let me ask you if you will examine
23 what I'll call Defendant's Exhibit Three for
24 identification, tell me if this one of the megaphones
25 you saw them using?
379
1 A Yes, that's one of them.
2 Q And you don't see any electrical parts or
3 devices in there?
4 A None.
5 MR. MERRETT: Your Honor, if I could
6 have this marked for identification as, I
7 think, our three.
8 THE COURT: Just a second.
9 (Defendant's Exhibit Three was marked for
10 identification.)
11 THE COURT: That is marked as Defendant
12 LMT's number three for ID.
13 MR. MERRETT: Thank you, Your Honor.
14 Your Honor, so the record is clear, I'm
15 assuming that the court, as I think we all
16 have at various times during the case, we're
17 using LMT as a shorthand for the Trust.
18 THE COURT: Yeah. What I'm trying to do
19 here is I've got two defendants of two
20 distinct clients represented by attorneys.
21 Mr. Howie represent Mr. Minton so sometimes I
22 put my defendant RM exhibit or I'll put
23 defendant LMT exhibit so I keep the two of
24 them straight.
25 MR. MERRETT: I want tit clear though is
380
1 that you've actually got 11 defendants here.
2 THE COURT: I understand that, yeah.
3 Let the record reflect that that takes in
4 everybody other than Robert Minton.
5 BY MR. MERRETT:
6 Q Thank you, Your Honor. Now, was it that
7 same day that you saw Ms. Bezazian and Mr. Enerson and
8 Mr. Lerma picketing on Pierce Street.
9 A On the sixth?
10 Q Yes.
11 A Okay. I got you.
12 Q Was that the same day?
13 A I'm sorry, could you repeat the question?
14 Q Okay. You testified about having seen
15 Mr. Enerson, Ms. Bezazian and Mr. Lerma picketing on
16 the Pierce Street side of the Ft. Harrison Hotel?
17 A Correct.
18 Q Was that the same day as the business with
19 the megaphones and the pole?
20 A No, that was on the seventh.
21 Q Okay.
22 A Seventh of January, 2001.
23 Q So the business around the Coachman was the
24 only thing and if I'm incorrect, listen carefully and
25 if I'm incorrect, correct me.
381
1 A Okay.
2 Q The business around the Coachman Building
3 was the only thing that you testified about happened
4 on the sixth; is that right?
5 A Right.
6 Q Okay. All right. Now, on the seventh, you
7 see that I've marked part of the area along Pierce
8 Street, part of the sidewalk again with cross hashes
9 and Xs. Was it this area that you saw these people
10 picketing?
11 A On that sidewalk, maybe a little farther
12 down.
13 Q Little farther to what is that, west?
14 A That would be west.
15 Q Okay. And at one point in the course of the
16 videotape, you came or I guess you were around the
17 corner?
18 A I was on the sidewalk.
19 Q Okay. And you came further than ten feet
20 back from the corner, right, from the corner of
21 Ft. Harrison?
22 A Well, of course. I was on the sidewalk.
23 Q Okay. And how close did you get to them?
24 A To who?
25 Q To Bezazian, Enerson and Lerma?
382
1 A Originally I placed myself in, well within
2 maybe 20, 30 feet from them.
3 Q Uh-huh.
4 A And I just maintained myself in that
5 position. I didn't move after that. I remember
6 Mr. Enerson walking towards me, but I was originally
7 about 20, 30 feet away from them; something like that.
8 Q And you were -- the area that the I've
9 marked in the cross hashes and the area there these
10 people were, that is in the area that's on the
11 attachment to the injunction that shows the
12 Ft. Harrison Hotel that's in the orange area, correct?
13 A Yes, that's and orange area.
14 Q Okay. So that's where they were and that is
15 where you were when you came around the corner to
16 videotape, correct?
17 A Yep.
18 Q You were likewise in the orange area?
19 A Yes.
20 Q Why were you there?
21 A To video -- I had a video camera and had to
22 document what was going on.
23 Q Okay. So when you made these videotapes,
24 you, Antonio Avila were in the orange area on Pierce?
25 A Yeah.
383
1 Q And of course you're an employee of the
2 Church of Scientology?
3 A Uh-huh.
4 Q And if I'm correct, you're a member as well;
5 is that right?
6 A That's right.
7 Q Now let's look later on on the seventh, that
8 night the business involving the police officers, now,
9 Mr. Minton, and who else came south on Waterson from
10 the LMT?
11 A It was Arnie Lerma, Mr. Minton, Tory
12 Bezazian and Randy Enerson.
13 Q I'm going to mark this PM to show it's
14 nighttime?
15 A No problem.
16 Q And where were you when you first became
17 aware they were coming the other way?
18 A I was standing I would say in close
19 proximity to the alley there.
20 Q Okay. This alley that's on the east side of
21 Waterson Street, this is ordinarily where the off duty
22 police officers stand, right?
23 A Pretty much.
24 Q Okay.
25 A In the vicinity.
384
1 Q And you were somewhere there around them,
2 right?
3 A Uh-huh.
4 Q Okay. And I'm not indicating above, below.
5 Just I'm going to an AA that we're here somewhere?
6 A Okay.
7 Q Okay. This area that I'm marking again with
8 cross hatches, that being the sidewalk down the east
9 side towards Waterson Street, that is looking at
10 defendant's number one for identification, that is
11 also an orange area, correct?
12 A Yes, it is.
13 Q Okay. And at some point during this if not
14 throughout this event you were on that sidewalk,
15 right?
16 A I was on the sidewalk before they got there.
17 Usually I move out if they are going to use the
18 sidewalk well before they were close.
19 Q Why is what?
20 A Because there is an injunction that
21 prohibits me from getting within ten feet of them.
22 Q Okay. Now, Mr. Minton and the people were
23 with him started out coming south on the sidewalk,
24 right?
25 A Uh-huh.
385
1 Q And the police officers are standing --
2 where are they by the time that Mr. Minton starts
3 talking to them?
4 A I'd say maybe it was south of the alley
5 there.
6 Q Okay.
7 A Somewhere around that.
8 Q PO can stand for anything. Mr. Minton left
9 the sidewalk at some point and toward the officers?
10 A Yeah, he did.
11 Q In fact what he did is he came down the
12 sidewalk and went around the officers and pointed his
13 finger at them and talking to them, right?
14 A Pretty much, yeah. Yelling at them and
15 whatever.
16 Q Telling them you're working for the Church
17 of Scientology and pointed at you, right, and said
18 you're working for this guy, you're working for
19 Scientology, the injunction covers you, right?
20 A Something to that effect.
21 Q Okay. He went out into the street, passed
22 the policeman and he got back up on the sidewalk,
23 didn't he?
24 A Yes, he did.
25 Q And then the policeman started from their
386
1 position, south, toward him, correct, because --
2 A No, that's incorrect. The policeman didn't
3 go anywhere until Minton somehow returned on to the
4 street again.
5 Q Okay. So Minton comes back into the street?
6 A For whatever reason he returned with his --
7 he had a megaphone and, you know, protesting and at
8 that point the officers verbally told him that you
9 need to get up off the street and on to the sidewalk.
10 Q All right. Now what I want to do is I'm
11 going to put it in a box here so I know that there is
12 a little --
13 A I'm sorry, what is the box.
14 Q An inset. It's a separate picture.
15 A Okay.
16 Q Okay.
17 A All right.
18 Q Robert Minton. The circle with the M in it,
19 is standing in the street?
20 A Uh-huh.
21 Q Now, what I'm talking about is the point
22 where the police officers approach him?
23 A Yeah, but not without first giving him a
24 verbal, you know, advice to move off the street.
25 Q Okay. And --
387
1 A They did that first and then they approached
2 him.
3 Q Okay. Now the police officers were
4 completely calm during that?
5 A Absolutely.
6 Q Relaxed?
7 A Pretty much.
8 Q Voiced not raised?
9 A No, not intitially.
10 Q They were nonthreatening?
11 A Non threatening. I would say that they were
12 loud enough so that he could hear them, you know, past
13 the sound of the traffic.
14 Q No finger pointing, no finger shaking by the
15 officers?
16 A Not initially.
17 Q Okay. Was there ever any?
18 A Yes.
19 Q Okay. And when did that take place?
20 A After Mr. Minton refused or not complied
21 with the officers' instructions.
22 Q And Mr. Minton was facing basically towards
23 whatever that building is. He was facing basically
24 east?
25 A Well, he seemed be looking around.
388
1 Q When the police officers came out into the
2 street where he was he was facing east, right?
3 A He was -- when he was in the street he
4 continued protesting with yelling and whatever and he
5 wasn't just looking one way. He was scanning the
6 street I would say.
7 Q Now, which officer approached him first?
8 A I believe it was Steve and let me see,
9 what's his last name? Correa, I believe, Officer
10 Correa.
11 Q What did he do?
12 A He approached Minton and I believe he might
13 have pointed at him and told him something to the
14 effect that he needed to get off the street.
15 Q Did he say anything else to him? Did he say
16 anything else to Mr. Minton?
17 A Not at that instant.
18 Q Okay. How close the distance?
19 A I would say within a few inches.
20 Q Okay. So, Officer Correa is there in
21 somewhere facing Mr. Minton?
22 A Maybe a little bit south of that -- I'm
23 sorry, north of that, but around that area.
24 Q Okay. What about Officer Harbert; what did
25 he do?
389
1 A Officer Harbert, after seeing that
2 Mr. Minton was still refusing the comply with the
3 police order or recommendation and as things were
4 getting louder, he approached Mr. Minton and I want to
5 say stood next to Officer Correa.
6 Q Okay. Kind of tell me when the point of the
7 pen is where you think he was?
8 A About right there.
9 Q About here?
10 A About there.
11 Q Okay. I'm going to put a circle with an H
12 in it.
13 A Okay.
14 Q And can you tell me -- I'll start up here at
15 the top and you tell me which way he was facing?
16 A Both of the officers were facing Mr. Minton.
17 Q Okay. So Harbert would have been facing
18 like that?
19 A Yeah, more or less.
20 Q Okay. And after that Mr, Minton got up on
21 the sidewalk, right?
22 A They changed, there was a few exchange of
23 words and, you know, I guess, you know, things were
24 looking -- they were starting to get out of hand at
25 first.
390
1 Q Uh-huh.
2 A You know, Mr. Minton was getting loud and
3 obnoxious and F words and all kinds of other words and
4 finally he complied.
5 Q He got up on the sidewalk?
6 A He did.
7 Q Okay. Now, when he got up on the sidewalk,
8 what did the officers do?
9 A They went back up on the sidewalk.
10 Actually, I believe they were trying to get back on
11 the sidewalk and Mr. Minton turn to them and started
12 asking questions or something.
13 Q Did they go back up here where they had been
14 before?
15 A I don't think so. I think they continued --
16 I think they went south, southbound to get on the
17 sidewalk again.
18 Q Actually what they did is the followed
19 Mr. Minton up on the sidewalk, didn't they?
20 A I would say they went in the same direction.
21 Q I mean they went right there he was, didn't
22 they; right there face-to-face?
23 A Pretty much.
24 Q Okay. And then after that Mr. Minton went
25 where?
391
1 A Mr. Minton -- well, they exchanged again
2 profanity and Mr. Minton was, you know, saying all
3 kinds of things to them.
4 Q Uh-huh.
5 A And telling them that they were violating
6 the injunction and, you know, the officers kept
7 telling him that that -- well, they were basically
8 arguing about the injunction for a while.
9 Q Right.
10 A And Mr. Minton finally proceeded to go
11 northbound.
12 Q Okay. He headed off this way, right?
13 A Correct.
14 Q Okay. And as Mr. Minton was headed off
15 north, he was on the sidewalk, right?
16 A Uh-huh.
17 Q And these officers followed him on the
18 sidewalk, didn't they?
19 A They stayed behind him, yes.
20 Q And continued to follow him up the sidewalk?
21 A I wouldn't know if they were following him.
22 Q Well, they didn't start walking north until
23 he did, right?
24 A Right.
25 Q And immediately before that he stepped up on
392
1 the sidewalk and they stepped up on the sidewalk after
2 them, right? I'm sorry, I'm doing that backwards.
3 Let me -- that's really not fair.
4 A Okay.
5 Q He stepped off of the street onto the
6 sidewalk and they stepped of the street onto the
7 sidewalk after him, right?
8 A Only after he refused to comply, right.
9 Q Then they had more words and he turned and
10 headed north on the sidewalk, right?
11 A Correct.
12 Q And after he turned and headed north on the
13 sidewalk, these officers turned and headed north
14 behind him, right?
15 A Yeah.
16 Q Okay. Now, you were videotaping --
17 (Whereupon, a cell phone in the audience
18 began to ring.)
19 THE COURT: You got to be kidding me.
20 Hey. Stand right there. my policy is and
21 there is sign out there any everything.
22 That's my phone. Bring it over here. Put it
23 right there.
24 MR. OLIVER: It's turned off. I
25 apologize, Your Honor.
393
1 THE COURT: I'll deal with it at the end
2 of today's session.
3 MR. MERRETT: Yes, sir. May I proceed?
4 THE COURT: Let the record reflect, a
5 cell phone went off. There is a big sign out
6 there in front about cell phones not being on
7 in my courtroom or my chambers. The total
8 disrespect over cell phones is just reaching
9 a point. I'll deal with this at the end.
10 Move on.
11 MR. MERRETT: Yes, Your Honor. I would
12 assume that anybody else who has a cell phone
13 should make note of the court's comments.
14 THE COURT: You can assume anything you
15 want.
16 BY MR. MERRETT:
17 Q Yes, sir now, you were videotaping this from
18 the beginning, right? From the time you became aware
19 Mr. Minton was coming along?
20 A Right, because it seems like they were --
21 well, actually they were protesting with signs, so I
22 documented the protest.
23 Q Okay. So you made a videotape that begins
24 at the time that you became aware of Mr. Minton and
25 the people who were with him were coming south on
394
1 Waterson, right?
2 A Yes.
3 Q And you videotaped continuously until they
4 got back to the LMT, right?
5 A Right.
6 Q Okay, and what was the purpose of the
7 videotape?
8 A Well, I just document any protest or
9 pickets.
10 Q Uh-huh. For what?
11 A There has been several violations of --
12 Q Of the injunction?
13 A Right, by the LMT members.
14 Q Okay, and your purpose then in making the
15 video was to ensure that you documented the violation,
16 right?
17 A If there was to be any.
18 Q Okay. And you documented everything with
19 the video camera that you thought indicated that the
20 injunction was being violated, right?
21 A I just documented what I believed to be the
22 whole -- the whole picture of the protest and any
23 incident that might happen, I videotaped that also.
24 Q Now, when Mr. Minton and the people who with
25 him came out into the street or came down street, you
395
1 stepped out into the street, correct?
2 A Correct, to avoid getting in the way of
3 Mr. Minton and the LMT members.
4 Q Right, you went into the street to avoid
5 violating the ten foot rule?
6 A Correct.
7 Q Okay. And you continued, in fact, much of
8 you videotape is taken with you standing in the
9 street, correct?
10 A I believe -- I was in the street for a
11 while. I don't remember exactly how long.
12 Q Okay. So you videotape from a position
13 standing in the street, correct?
14 A Correct.
15 Q Okay. Can you tell the judge at what point
16 Officer Harbert told you needed to get out of the
17 street?
18 A He didn't tell me.
19 Q Okay. It there a different rule for
20 Scientologist about the injunction? Do you have n
21 understanding with these officers or what's the deal?
22 A No, there is no understanding. It's the
23 same. We are under the same law.
24 Q Okay. And, of course, because have such
25 respect for the law when you from these heard officers
396
1 you are being paid by Scientology, these people are
2 not to be in the street, what you did is stand there
3 in the street with your video camera, right?
4 A My intention for standing in the street -- I
5 would have gotten back up on the sidewalk was it not
6 that the LMT members were still in the vicinity and
7 would usually move about.
8 Q Okay.
9 A However, there happened to be an incident
10 where they were not moving and Mr. Minton was, as your
11 know, on the street himself, so I just thought I would
12 video and have that in evidence.
13 Q In the street?
14 A I didn't thing of it like having it in the
15 street. I would prefer to have it on the --
16 Q There is a sidewalk on the other side of the
17 street, isn't there?
18 A Yes, there is.
19 Q Okay. And that's a sidewalk that you, like
20 any other citizen, are at liberty to use, right?
21 A Uh-huh.
22 Q But you didn't get up on the sidewalk, did
23 you?
24 A Right. I wanted to be as close as possible
25 to that ten foot buffer so I could get as much as
397
1 possible of that incident because there was to me it
2 looked like it was getting out of control.
3 Q Is there any other reason that you didn't
4 get up on the sidewalk?
5 A That's my one reason.
6 Q Okay. Otherwise you could've gotten on the
7 sidewalk and had a clear view of what was going on,
8 but you wanted to be close?
9 A I wanted to have as much of it as possible.
10 Q Okay.
11 A So I wanted to be as close as possible which
12 I believe the ten foot rule and that I stay within
13 that and video from there to get as much as possible.
14 Q And it had to be in the street, right?
15 A Unfortunately Mr. Minton was on the street
16 and that's the only way the other members were on the
17 sidewalk. I couldn't go there.
18 Q Now, did anybody else come down into the
19 street or get in the midst of all this business
20 between Mr. Minton and the officers?
21 A Well, there was others. I believe
22 Mr. Enerson was there and that was just basically LMT
23 members that were with Mr. Minton there.
24 Q Okay. Going back to your choice of
25 positions to videotape, I just want to make it clear
398
1 that from the position where all this was going on you
2 could have stood directly across the street and filmed
3 it if you had chosen to get up on the sidewalk,
4 correct?
5 A Correct. Now, one thing is there was a bus
6 there behind me loading and unloading people.
7 Q Okay. And of course you got these people on
8 the videotape, right?
9 A I don't think I got the. I was mainly
10 aiming at the incident.
11 Q How many people were on the bus?
12 A I didn't pay attention to that.
13 Q If fact the bus was unloaded, empty and
14 idling, wasn't it?
15 A I couldn't say.
16 Q You can't say, okay.
17 A I know that it was in the middle of
18 mealtime.
19 Q Uh-huh.
20 A And there is plenty of people that go in and
21 out of those all the time during meal times.
22 Q Uh-huh.
23 A And that's all I can say to that.
24 Q Right. Right. But as far as what was going
25 on at that specific time, you don't know?
399
1 A I didn't see anybody going on or off but I
2 was looking directly at what was happening with
3 Mr. Minton and the two officers.
4 Q Okay. Now, I want to go back briefly to
5 this business of the Coachman if I can find it on the
6 sixth. Now, these people were using the megaphones,
7 the people who say had megaphones and making a lot of
8 noise?
9 A They were.
10 Q Okay. And --
11 A As well as a horn.
12 Q Uh-huh. There wasn't anything else going on
13 at that time, was there?
14 A What do you mean?
15 Q Was there any other noise in the area or
16 anything else going on?
17 A Just the regular --
18 Q Traffic?
19 A Traffic.
20 Q Nothing else?
21 A Nothing that I noticed.
22 Q Okay. There is a camera on the northeast
23 corner of the Ft. Harrison Building, right?
24 A I believe there is.
25 Q That can be manipulated to videotape all of
400
1 the things that happened around the Ft. Harrison and
2 around the Coachman Building, right?
3 A Actually, I can't tell you what the
4 capabilities are .
5 Q Okay. Did you not testify earlier in the
6 day today about how these cameras work so you could
7 authenticate a videotape that was made by one of them?
8 A I don't know which one you're referring to.
9 Q Okay. Let me ask you this. There is a
10 video camera that you definitely know about up here on
11 the corner of the Coachmen building, right?
12 A Yes, I've seen it.
13 Q Okay. And you know that it, because you've
14 seen videos of it, can videotape in both directions up
15 and down Ft. Harrison, right?
16 A Correct.
17 Q And there is another one back here somewhere
18 on the back of the Coachman Building, right?
19 A I'm not sure about that.
20 Q Okay. All those video cameras, I think, and
21 if I'm mistaken and it wasn't you, you know, tell me,
22 but somebody testified they are all running 24 hours a
23 day, right?
24 A That was Ahmed.
25 MR. POPE: Your Honor, this whole video
401
1 camera business is so far outside of my
2 direct, I hate -- the direct examination had
3 to do with a video that Antonio himself took
4 and we know the video cameras, all this
5 examination is beside the point. It's way
6 outside the scope.
7 THE COURT: Mr. Merrett, sir?
8 MR. MERRETT: I'm just wondering where
9 the other videotapes are. That's what I'm
10 getting at, Judge.
11 THE COURT: All right. Proceed.
12 MR. POPE: Your Honor, this is not a
13 discovery deposition.
14 THE COURT: I understand that and I've
15 been very patient here because frankly it did
16 sound like discovery to me and getting into
17 this tape though and the tape is going to be
18 shown to me, he does have a right to check
19 the credibility of the witness as to where
20 the actual tape was. If it's his video
21 camera or it came from some where else. I
22 assume that --
23 MR. POPE: He's already testified --
24 THE COURT: I know that, but he has a
25 right to see if he can shake that testimony.
402
1 MR. MERRETT: May I proceed?
2 THE COURT: Please, sir.
3 BY MR. MERRETT:
4 Q There are other video cameras that are
5 attached to buildings around here that had a view of
6 these events, correct?
7 A I can't answer that.
8 Q Okay. You've never been in the videoing
9 monitoring room?
10 A I think I've been there a couple times. I
11 never, you know, paid attention to what was going on.
12 Q Okay. How do you decide when you're going
13 to do that?
14 A Do what.
15 Q Pay attention to what's going on?
16 A In the video room.
17 Q Any --
18 THE COURT: Now I think we're getting s
19 little far field. Let's pull this back in,
20 please.
21 BY MR. MERRETT:
22 Q Let me ask you this. The videotape that
23 we're about to see, this is another one of those
24 videotapes that the last time that you saw it, it was
25 one or more continuous discreet videotapes, right?
403
1 A The last time that I saw it? I saw the one
2 that was edited.
3 Q Okay. You made the tape, right, made each
4 of these tapes, right?
5 A Right.
6 Q You turned them into OSA, right?
7 A Reception, yeah.
8 Q Which is part of OSA, right?
9 A I guess, yeah.
10 Q Which is Mr. Shaw and Mr. Render's
11 operation, right?
12 A Uh-huh.
13 Q And the next time you get these tapes back
14 they've been edited by someone; Mr. Shaw, Mr. Render,
15 Mr. Miscavige, whoever?
16 A Yeah, sometimes they get edited.
17 Q Okay. This tape has been edited more than
18 once?
19 A Yeah.
20 Q You don't know who edited it?
21 A I have no clue.
22 Q And you know who chose to what to cut out
23 and what to leave in?
24 A I have no clue.
25 Q But you do know for a fact that the
404
1 videotape we're about to see is not an exact duplicate
2 of the videotape that you made, right?
3 A It is exactly what I filmed. It's not
4 everything I filmed but it is what I filmed. It's not
5 altered in any way except that footage was taken out
6 of it.
7 Q Correct, so it's not an exact duplicate of
8 the tape that you made?
9 A Right.
10 MR. MERRETT: Okay. I don't have
11 anything further, Your Honor, other than to
12 renew my objection to the OSA videotapes?
13 THE COURT: Well, I'm confused. I gave
14 you all a chance to look at the tapes and
15 everything and when I came back in I was
16 under the impression that you said no
17 objections that you had to see what they had
18 spliced out and all and I went ahead and put
19 them in evidence.
20 MR. MERRETT: Your Honor, the objection
21 was withdrawn as to the objection of
22 nonconformity of the item adduced in court
23 with the item that was produced pursuant to
24 your order to produce.
25 THE COURT: I see. But you're renewing
405
1 your objection as far as being in evidence?
2 MR. MERRETT: Yes, sir, because the tape
3 has repeatedly edited by this man's
4 testimony, like everything else they have
5 brought in here. It goes frozen in a black
6 box and it comes out cut up and doesn't know
7 who does, he doesn't know how the choice is
8 made and he doesn't know why it's made.
9 THE WITNESS: Your Honor, may I add --
10 THE COURT: Nope. Hold on just a
11 minute. I appreciate your -- hang on just a
12 minute. I got to give Mr. Howie a chance.
13 MR. HOWIE: Your Honor, we simple join
14 in the motion.
15 THE COURT: Okay. All right. Now,
16 Mr. Pope.
17 MR. POPE: The so-called editing is that
18 certain footage has been deleted so that
19 we're not producing irrelevant stuff before
20 the court, hours and hours of stuff. What we
21 did is we've cut the stuff down to the
22 material that's in question.
23 THE COURT: I understand, sir.
24 MR. POPE: And that's what he talks
25 about as being edited. It's footage cutting
406
1 and deletion.
2 THE COURT: I understand the objections
3 and at this time the objections are
4 overruled. The tape, that tape number nine
5 will be in evidence.
6 I will give it the weight I fell it
7 deserves and I also will have a chance to
8 view and I have noted in my notes that the
9 grounds for the objections and you have a
10 continuing objection.
11 MR. MERRETT: Thank you.
12 THE COURT: Yes, sir.
13 MR. HOWIE: Your Honor --
14 THE COURT: Wait a minute. Excuse me,
15 you said you joined in so now you going to
16 make additional argument?
17 MR. HOWIE: No, no further argument.
18 THE COURT: You want to cross him,
19 though.
20 MR. HOWIE: The court has ruled and my
21 cross went to or would have gone to that
22 motion, but I would like to reserve my
23 opportunity to cross Mr. Avila concerning
24 these tapes.
25 THE COURT: After they're shown or do
407
1 you want to do it now?
2 MR. HOWIE: Or I can proceed now.
3 THE COURT: Proceed.
4 CROSS-EXAMINATION
5 BY MR. HOWIE:
6 Q Mr. Avila, I wanted to ask you about the
7 events on January 6 and on January 6 according to you
8 testimony you saw Mr. Minton along the or south of the
9 Coachman Building. Let me see if I can locate it?
10 A It's backward a little bit.
11 Q All right.
12 MR. MERRETT: I beg your pardon, Your
13 Honor.
14 THE COURT: Yeah, go help him, please.
15 BY MR. HOWIE:
16 Q Now, concerning the Coachman Building, you
17 indicated on January six you filmed Mr. Minton and
18 others along this sidewalk here along Park Street,
19 correct?
20 A That is correct.
21 Q All right. And you were standing in this
22 parking lot which is parking lot immediately south of
23 the Coachman Building, correct?
24 A Right.
25 Q And you observed Mr. Minton and company
408
1 travel west along the sidewalk on Park Street then
2 head north along Ft. Harrison, correct?
3 A Well, actually they had gone over to
4 Ft. Harrison and protested over there first and then
5 came back that way, yes.
6 Q So you have a segment where in fact
7 Mr. Minton and others are across the street from the
8 Ft. Harrison along the east sidewalk of Ft. Harrison?
9 A Right, yeah. After they got -- after they
10 picketed and protest at the Coachman Building, then
11 they head over to the Ft. Harrison Building across the
12 street in front of it and they protest there for a
13 while.
14 Q And while they're protesting in front of the
15 Ft. Harrison, you videotaped them there?
16 A I did.
17 Q And, in fact, that's the scene that shows
18 construction work --
19 A Behind the.
20 Q Behind them, correct?
21 A Uh-huh.
22 Q Then you observed them head northbound on
23 Ft. Harrison along the east side of Ft. Harrison,
24 correct?
25 A Correct.
409
1 Q And you filmed them from time to time as
2 they proceeded northbound along Ft. Harrison, correct?
3 A Right. I didn't see a need to film them
4 while they were you know, away from our property.
5 Only when they were within our properties I was
6 filming them.
7 Q So you resumed filming them as they crossed
8 this driveway here, correct?
9 A Correct.
10 Q And you continued filming them until they
11 passed the southwest corner of the Coachman Building
12 and then you stopped, right?
13 A Right.
14 Q Did you continue to follow them?
15 A I continued to -- I wasn't -- yeah, pretty
16 much, you know, see where they were going. It seemed
17 like they were heading to the Clearwater Bank Building
18 and that's where I was.
19 Q Where did they head? Can you describe the
20 path they took after you ceased filming them here?
21 A They went northbound on Ft. Harrison and
22 made a right-hand turn on Cleveland.
23 Q This being Cleveland here?
24 A Right, and then they went and made a
25 left-hand turn onto Waterson Avenue.
410
1 Q All right. Did they stay on the south side
2 of Cleveland?
3 A I'm not sure.
4 Q Or did they go to the north side and cross
5 in front of the Clearwater Bank Building?
6 A I'm not sure which side they took.
7 Q You didn't bother to film them as they went
8 eastbound on the Cleveland regardless of which side
9 they were on, did you?
10 A I want to say they were across the street
11 and I'm talking about Cleveland Street and I'm not 100
12 percent sure but it's possible they went in from of
13 the Bank of Clearwater.
14 Q Now, you've already stated that your purpose
15 was to film them while they were on Church property?
16 A Right, protesting.
17 Q Right, and yet you did not film them as they
18 went eastbound on Cleveland?
19 A I don't think I did.
20 Q All right. Yet you had videotape left in
21 your camera available to do that?
22 A The reason for that is that they weren't
23 picketing at the moment.
24 Q All right, so you didn't film them when they
25 weren't picketing when they going down Cleveland?
411
1 A Right. It looked to me like they were going
2 back to the LMT Building and they were done for the
3 day, so I just decided, you know, to see what's going
4 to happen. If they would have hanged around the area
5 I would have taped it.
6 Q So they were proceeding at a pace. They
7 were walking --
8 A They proceeding in a direct -- yeah.
9 Q They weren't walking back and forth?
10 A No, they kept going towards Waterson Avenue
11 and made a left-hand turn.
12 Q So when they came to Waterson which is
13 indicated here, they went north along Waterson?
14 A Yes, they did.
15 Q And they went north along the east sidewalk
16 of Waterson, correct?
17 A Correct.
18 Q So you're indicating that they continued up
19 the east sidewalk of Waterson?
20 A Right.
21 Q And eventually you videotaped them as they
22 were going up the east side of Waterson?
23 A Yes, I did.
24 Q All right. Now, is it your testimony that
25 since you only videotaped them while they were
412
1 picketing or protesting, when you resumed videotaping
2 them on the east sidewalk here is because you believed
3 that they were protesting?
4 A Right, I didn't see why they would have gone
5 on that sidewalk if they weren't planning to protest
6 because that is a protest zone.
7 Q So you began filming here again?
8 A Yes, just for the possibility that they
9 might protest.
10 Q All right. You said the possibility. They
11 weren't in fact protesting?
12 A Actually, Mr. Minton, I recall Mr. Minton
13 starting to speak up on the megaphone again and that
14 might be part of the reason why, too.
15 Q All right, and you saw Mr. Minton and I
16 believe you said Mr. Merrett, as well, cross Waterson
17 Avenue more or less diagonally?
18 A Pretty much, yeah.
19 Q Now, you filmed Mr. Minton going northbound
20 on the west sidewalk. Did you film him going all the
21 way into the Lisa McPherson Trust?
22 A Yeah, I think I did.
23 Q So your videotape would show him actually
24 going into the Lisa McPherson Trust?
25 A The original would.
413
1 Q Okay. You, in fact, observed this happening
2 since you were there filming?
3 A Yeah. He went all the up to the LMT
4 Building and I think they were hanging outside for a
5 while.
6 Q Okay. So, to conclude all your evidence or
7 all your testimony, you say you started filming on the
8 south side of the Coachman, you filmed them down at
9 the Ft. Harrison and then you saw them walk directly
10 back to the LMT --
11 A Because on the way back then they were
12 protesting at the Coachman again.
13 Q Right. You filmed them at the Coachman
14 again and then you observed them head straight back to
15 the Lisa McPherson Trust Building?
16 A Right. When they were on Waterson they were
17 demonstrating again. At least Mr. Minton was and he
18 was demonstrating adjacent to the Clearwater Bank
19 Building.
20 Q Now, concerning the megaphones that were
21 being used that you filmed on the videotape that were
22 being used by Mr. Lerma, Mr. Enerson and Ms. Bezazian.
23 A Which day, the seventh?
24 Q This would be I believe on the seventh, as
25 well?
414
1 A Yes.
2 Q This would be along Pierce Street at the
3 Ft. Harrison Hotel?
4 A Right.
5 Q Now, what exactly did you -- did you film
6 everything that was going on along the street there?
7 Did you continue to film continuously while they were
8 there?
9 A On Pierce Street?
10 Q Yes.
11 A Pretty much.
12 Q And isn't it true that they placed these
13 megaphones that you've already described and
14 identified on the wall along Pierce Street?
15 A Yeah, they did; pretty close to it.
16 Q Did you ever observe them do this when you
17 were not filming them?
18 A I think I was filming the whole time.
19 Q Okay.
20 A I believe I did.
21 Q So you did observe them place their
22 megaphones on the wall any time other than when you
23 were videotaping, correct?
24 A Right.
25 MR. HOWIE: Thank you. I don't have any
415
1 further questions.
2 THE COURT: Mr. Merrett, did that do any
3 that you want to inquire to?
4 MR. MERRETT: If I may.
5 THE COURT: You may. Go ahead.
6 CROSS-EXAMINATION
7 BY MR. MERRETT:
8 Q Real briefly, you said that you weren't
9 videotaping these people as they walked back east on
10 Cleveland Street because they weren't picketing then,
11 right.
12 A Which day are referring to?
13 Q I'm sorry, the --
14 A Seventh?
15 Q No, the sixth when they were at the
16 Coachman?
17 A Okay.
18 Q Is that correct; that's the reason that you
19 didn't videotape them is they headed east on
20 Cleveland?
21 A East on Cleveland?
22 Q Let me go back. Mr. Howie asked you when he
23 was asking you about whether you could have videotaped
24 them and whether you did you said they turned the
25 corner in front of the bank building and you all
416
1 couldn't figure out exactly whether they were on the
2 bank building side or the -- you got it right?
3 A The Coachman side, okay.
4 Q The question was --
5 THE COURT: Just a minute. Sir, can I
6 get you to move? I'm having a hard time
7 seeing through your back.
8 THE WITNESS: Sorry.
9 THE COURT: Okay. Let's proceed.
10 BY MR. MERRETT:
11 Q Again, this is when he was asking you about
12 the videotape from down Ft. Harrison, you videotaped
13 him here, you videotaped him coming back. When they
14 came across this way whichever side of the street it
15 was, you didn't videotape it because they weren't
16 picketing, right?
17 A As I recall, I didn't.
18 Q Okay. But I mean the reason is that they
19 weren't picketing?
20 A Right. If they're not picketing I have no
21 reason to film this.
22 Q And they had their signs and the megaphones
23 and all their paraphernalia with them, right?
24 A Yeah, but they weren't using them. They
25 were just carrying them.
417
1 Q And you also said that the reason that you
2 cranked the camera back up when they got around on
3 Waterson is because they went to the east side which
4 is an orange zone so you assumed they were going to
5 picket?
6 A Right, and the fact that Mr. Minton had
7 started to use the megaphone.
8 Q Well, I mean you started videotaping before
9 he started using the megaphone, right?
10 A I believe in the middle.
11 Q Okay. If it hadn't been for the, as you saw
12 it, had they not been about to picket they would have
13 taken a more direct route and just stayed on the west
14 side, right?
15 A I believe so. Why go the extra mile?
16 Q I understand.
17 A Okay.
18 MR. MERRETT: Thank you very much. I
19 have nothing further.
20 THE COURT: Mr. Pope.
21 MR. POPE: No questions.
22 THE COURT: All right. Are we ready to
23 view the videotape?
24 MR. POPE: We are.
25 THE COURT: All right. Let's do that.
418
1 (Whereupon, the videotape was played.)
2 THE COURT: All right. Let me do this,
3 Mr. Pope. You presented it. Now that it's
4 been shown, any questions that you want to
5 ask of him?
6 MR. MERRETT: No, Your Honor.
7 THE COURT: Mr. Howie?
8 MR. HOWIE: Nothing further.
9 THE COURT: Mr. Pope.
10 MR. POPE: I just wonder if you wanted
11 us to run did it back without the sound track
12 for purposes of identifying the people
13 involved.
14 THE COURT: Yes, do that please.
15 MR. POPE: All right.
16 (Whereupon, the videotape was played.).
17 THE COURT: And for the purposes of the
18 record, that tape is in evidence and it will
19 be in the court file and the court reported
20 did not type down what was being said because
21 it can be taken off the tape at a later date.
22 MR. POPE: May Mr, Avila step over next
23 to the television and just identify these
24 folks?
25 THE COURT: All right.
419
1 THE WITNESS: Okay, you Arnoldo Lerma,
2 Robert Minton, Mr. Merrett, Randy Enerson,
3 and Anita Gogolla.
4 This is front of the Ft. Harrison Hotel
5 we got Mr. Merrett, Stacy Brooks, and Bob
6 Minton.
7 That is Arnie Lerma in front of the
8 Ft. Harrison Hotel.
9 That's Minton sticking the pole into the
10 street.
11 That's Mark Bunker with the video
12 camera.
13 This is the entranceway to the parking
14 lot of the Coachman Building.
15 MR. MERRETT: Your Honor, if I may
16 object to the witness pointing out the people
17 in an narrative.
18 MR. POPE: Your Honor, it does seem
19 appropriate that he for the record, state
20 where they were for purposes of
21 identification, otherwise it's meaningless.
22 THE COURT: Proceed.
23 MR. POPE: Can we back it up to where we
24 were?
25 THE COURT: Would you, please?
420
1 MR. POPE: I would ask the witness. Your
2 Honor, to at lease give some idea as to what
3 color of the clothing we have on so we can
4 match the name with the figure.
5 THE WITNESS: This is in front of the
6 Ft. Harrison Hotel and you have Bob Minton.
7 THE COURT: Now, when you say in front
8 of the hotel, that's across the street at the
9 construction site?
10 THE WITNESS: Correct.
11 THE COURT: And they're in the orange
12 zone there?
13 THE WITNESS: Correct. This is the
14 Coachman parking lot entrance and you have
15 Bob Minton with the pole and the megaphone.
16 THE COURT: Mr. Minton is the one there
17 with that sweater on?
18 THE WITNESS: Correct.
19 THE COURT: Okay. Go ahead.
20 THE WITNESS: Me. Merrett is there with
21 the hat on.
22 MR. MERRETT: I'm sorry, we just missed
23 that. Who were they?
24 THE COURT: Yeah, what was that? Go
25 back. Back it up.
421
1 THE WITNESS: You mean the two people
2 over here?
3 THE COURT: No, wait a minute. I'll say
4 stop. All right. Right here, okay. Stop.
5 What's that?
6 THE WITNESS: You'll have to rewind it a
7 little bit.
8 MR. POPE: All right.
9 THE WITNESS: These are two Church
10 members that are working on something there.
11 THE COURT: Is that the Coachman
12 Building with that canopy?
13 THE WITNESS: Yes, sir.
14 THE COURT: The south side of it?
15 THE WITNESS: Correct.
16 THE COURT: Adjacent to the parking lot?
17 MR. HOWIE: Yes, sir.
18 THE WITNESS: Okay.
19 MR. MERRETT: Im sorry, Judge. Can we
20 get names?
21 THE COURT: Do you know the names of
22 those church members?
23 THE WITNESS: I believe one is name
24 Daniel. I don't know his last name. Anita
25 Gogolla is the female with the group there.
422
1 This is Waterson avenue.
2 THE COURT: That's the alleyway right
3 there where that car is and where they're at
4 right now?
5 THE WITNESS: Yes, sir.
6 THE COURT: Okay.
7 THE WITNESS: Arnie Lerma is the
8 gentleman with the brown sport suit or coat,
9 Minton is there with his pole. Mr. Merrett
10 is there with the hat on. Mark Bunker has
11 the video camera?
12 THE COURT: Now, the lady is Stacy
13 Brooks?
14 THE WITNESS: This one is Anita Gogolla.
15 THE COURT: I see, with the black
16 sweater or black blouse or whatever?
17 THE WITNESS: Yeah, she has a white
18 shirt on with a sleeveless dark color
19 sweater.
20 THE COURT: Okay. That's looking at the
21 west side of Waterson, right.
22 THE WITNESS: Yes, sir.
23 THE COURT: The sidewalk on the west
24 side?
25 THE WITNESS: Yeah, and we got Bob
423
1 Minton raising the pole up in the air and
2 Mr. Merrett next to him.
3 THE COURT: Where the canopy starts
4 there, right there, that's the rat bait
5 building?
6 THE WITNESS: Yes, sir.
7 THE COURT: Okay.
8 THE WITNESS: This is Pierce Street.
9 THE COURT: On the north side of the
10 hotel property?
11 THE WITNESS: Correct.
12 THE COURT: Okay, the Presbyterian
13 Church is directly north across the street.
14 THE WITNESS: Yes, sir. This is Tory
15 Bezazian with the red sweater on. This an
16 Randy Enerson with the white shirt and the
17 black jacket and black pants. Behind them is
18 Arnie Lerma.
19 THE COURT: Approximately where would
20 you say they there right now? The gentleman
21 that -- stop that. Freeze that.
22 THE WITNESS: I would say pretty close
23 to me. I didn't -- I would say maybe eight
24 feet.
25 THE COURT: Where are you?
424
1 THE WITNESS: I'm positioned right next
2 to an exit which is on the side of the
3 building. I could show you on the map.
4 THE COURT: Come here and show me.
5 There is the north side right there and
6 that's where you took up right here or right
7 down here.
8 THE WITNESS: Well that area here.
9 THE COURT: That's not shown on the map.
10 THE WITNESS: Right.
11 THE COURT: There's the -- you talking
12 about right here or right here?
13 THE WITNESS: Right, there's a little
14 exit.
15 THE COURT: Okay. I see. All right.
16 THE WITNESS: I was on the sidewalk.
17 MR. MERRETT: Your Honor, may the record
18 reflect that a mark had been entered in the
19 orange area on the sidewalk along Pierce
20 Street north of the Ft. Harrison Hotel.
21 THE COURT: Okay. Also let the record
22 reflect that the exit he indicated he was
23 next to is actually not on the map.
24 MR. MERRETT: Yes, sir.
25 THE COURT: Thank you. Sir. Go ahead.
425
1 Proceed.
2 MR. POPE: May I ask the witness to
3 clarify? I think he was describing
4 Mr. Enerson as having a white shirt. Did you
5 mean to say a red shirt on?
6 THE WITNESS: Yeah, I meant red.
7 MR. POPE: Okay.
8 THE WITNESS: This is Waterson Avenue
9 again. We have Robert Minton in the front
10 with the megaphone, pointing his finger at
11 the to officers. The officer on the left is
12 Larry Harbert. The officer on the right is
13 Steve Correa.
14 This one right her is Randy Enerson.
15 He's got a megaphone, picket sign, white
16 tennis shoes, same red shirt and dark
17 colored jacket.
18 The lady here with the red sweater on it
19 Tory Bezazian.
20 That's Minton standing on the street
21 right there.
22 That's Officer Steve Correa who first
23 approached Minton and Officer Larry Harbert
24 who followed after Officer Correa.
25 THE COURT: That's still on the east
426
1 side?
2 THE WITNESS: Yes, east side of the
3 Waterson Avenue.
4 THE COURT: Where are you standing while
5 you're filming this?
6 THE WITNESS: Here.
7 THE COURT: Right there, are you on the
8 west sidewalk?
9 THE WITNESS: I believe I was first on
10 the west sidewalk. At one point I moved on
11 to the street.
12 THE COURT: Okay.
13 THE WITNESS: I don't recall at which
14 point I did that. This gentleman back here
15 with the dark sweater on and the light
16 colored pants is Arnie Lerma.
17 THE COURT: All right. Anything else,
18 Mr. Pope.
19 MR. POPE: Not from this witness, Your
20 Honor.
21 THE COURT: All right. Anything from
22 you, Mr. Merrett?
23 MR. MERRETT: No, Your Honor.
24 THE COURT: Mr. Howie?
25 MR. HOWIE: Nothing from him.
427
1 THE COURT: Can we excuse him or do you
2 want him subject to recall?
3 MR. MERRETT: Subject to recall.
4 THE COURT: Sir, you are subject to
5 recall and I request that you be here
6 tomorrow. Let's do this. You can come have
7 a seat.
8 Let me have that tape, please.
9 (Whereupon, a pause in the proceedings took
10 place.)
11 All, right ladies and gentlemen, by the
12 courtroom clock it's 20 minutes of 6 or 1714
13 hours on this, the 11th day of February in
14 the year 2001, a Sunday.
15 I think we've done a lot today. We'll
16 pick it up tomorrow morning nine o'clock
17 right back here at this courtroom. But,
18 before I do that and let everybody go I have
19 two things I've got to take care of.
20 Mr. Merrett, sir, you tell me that Keith
21 Henson is present?
22 MR. MERRETT: Yes, Your Honor.
23 THE COURT: Would he come forward,
24 please. Mr. Henson, you have been served
25 with an order show cause why you should not
428
1 be held in contempt of the violating the
2 court's injunction that was entered in
3 regards to the case of the Church of
4 Scientology Flag Service Organization, Inc.
5 versus Robert S. Minton, Jr., etcetera.
6 How do you plead to this charge?
7 MR. MERRETT: Your Honor, without
8 prejudice to the prior objections regarding
9 jurisdiction and service of process.
10 THE COURT: Preserved for the record.
11 MR. MERRETT: Yes, sir. He would plead
12 not guilty.
13 THE COURT: Okay. Now, one other thing.
14 Mr. Henson, you were not here yesterday and
15 there is a law in the State of Florida,
16 especially on an order to show cause, failure
17 to appear at the time that you were directed
18 to appear at the place, on the date,
19 etcetera, those justify the court to issue a
20 capias having you taken into custody and held
21 to guarantee that you will be present for all
22 proceedings.
23 Now, let me ask you this. You realize
24 this has got to continue for a couple days.
25 Are you going to be present?
429
1 MR. HENSON: Yes, Your Honor, if
2 ordered, I presume I am.
3 THE COURT: Well, I've got two choices.
4 I just explained, I can you hold you in a
5 holding cell and make sure you'll be here for
6 the proceedings or if you tell me you will
7 freely and voluntarily be here especially
8 when anything comes up involving you and your
9 defense. I'll forgo that.
10 MR. HENSON: I'll be here, Your Honor.
11 THE COURT: Let me ask you this.
12 Mr. Merrett does represent you.
13 MR. HENSON: I have never signed
14 anything formally but if Mr. Merrett says he
15 represents me, I guess he does.
16 THE COURT: Okay. Now, he can explain
17 to you there is another procedure where we
18 tomorrow morning examine you under oath and
19 you can waive your presence of you so desire
20 without speaking or doing anything. It's
21 throw your fate the wind, so to speak. Not
22 to say that it won't be a fair trial, but you
23 can waive your presence.
24 MR. HENSON: Sorry, Your Honor. I don't
25 understand this.
430
1 THE COURT: Okay. Now, Mr. Merrett,
2 would you explain that to him this evening?
3 MR. MERRETT: I will, Your Honor.
4 THE COURT: Then if he wants to go that
5 route tomorrow, I'm willing. We can do that.
6 MR. MERRETT: Yes, sir.
7 THE COURT: Okay. All right. I'm
8 satisfied he's entered a plea. I'm satisfied
9 that I don't need to hold him. And if he
10 wants to do a waiver in the morning, let me
11 know.
12 MR. MERRETT: Yes.
13 THE COURT: We'll go that route, okay.
14 All right. That's fine. You can go back and
15 be seated.
16 Mr. Bailiff, if you would, sir, please
17 bring forward the gentleman that seems to
18 think he has to have an urgent phone call in
19 the middle of a court proceeding.
20 Sir, your name, please?
21 MR. OLIVER: My name is Frank Oliver.
22 THE COURT: Okay. Mr. Oliver, raise
23 your right hand.
24
25
431
1 Thereupon:
2 FRANK OLIVER
3 was called as a witness and having been duly sworn, was
4 examined and testified as follows:
5 THE COURT: Okay. Mr. Oliver, when you
6 entered the courtroom did you see the sign
7 there by the door explaining how the use of
8 beepers and cell phones in the courtroom.
9 MR. OLIVER: I say the sign, Your Honor,
10 however I didn't enter through that door,
11 but, yes, I did see the sign.
12 THE COURT: All right. Now, I'll tell
13 you what I'll do. I'm going to ask the
14 bailiff to give you back your cell phone. I
15 want this clear on the record you're getting
16 you cell phone back. It's turned off, okay.
17 But, since you were first to violate it,
18 I'm going to put you to work. Tomorrow for
19 everybody on the defense or everybody
20 wearing a white rose, including the
21 attorneys who are or aren't, I'm going to
22 put you in charge of making sure all cell
23 phones and beepers are off at any time while
24 were in the courtroom.
25 If anything goes wrong, this is going to
432
1 be between you and me, okay?
2 MR. OLIVER: Yes, Your Honor.
3 THE COURT: Can you be in charge of
4 that?
5 MR. OLIVER: Unfortunately, I have been
6 in charge of that until now and I was more
7 surprised than you when it went off.
8 THE COURT: Maybe I better get somebody
9 else.
10 THE DEFENDANT: I was more surprised
11 than you when it went off.
12 THE COURT: Okay. Give him his cell
13 phone back. Please folks, this is really
14 getting very serious and we're trying to
15 bring this, you know, get some sort of
16 decorum so people aren't interrupted.
17 I'll tell you what I'm going to do over
18 on the Church's side or the petitioner's
19 side, Mr. Shaw, you seem to have the most
20 experience in the area of security,
21 etcetera, etcetera. I'm going to make you
22 in charge of seeing that everybody on that
23 side has their cell phones and beepers off.
24 Would you please?
25 MR. SHAW: Absolutely.
433
1 THE COURT: All right. I've got two
2 capable people to help me. Thank you all
3 very much.
4 All right, ladies and gentlemen, I think
5 we still got a lot of work ahead of us.
6 Have a good evening. I look forward to
7 seeing all of you tomorrow here at nine
8 o'clock.
9 Let me say one thing. Tomorrow, you
10 know, we've had a luxury here the past two
11 days. We sort of had this courthouse to
12 ourselves. Tomorrow is going to a little
13 bit crowded.
14 I do urge you, especially if we start at
15 nine o'clock. You might come before eight
16 to start looking for parking places. It's
17 jury trial week here and this floor,
18 especially this third floor is going to be
19 packed with individuals.
20 Be patient. You all have been here.
21 You all understand about court proceedings.
22 You all understand what usually -- I'm
23 asking you to be a little bit patient with
24 them. There's going to be a lot of people
25 here who don't want to be here. So, don't
434
1 get yourself in a confrontation that you
2 don't need.
3 I understand what's going on here and I
4 don't think they belong on either of these
5 sides, so I'm just telling you that when you
6 come back tomorrow we'll get you in here and
7 we'll go about our business and eventually
8 the masses will come to the third floor and
9 they will go to other floors and other
10 courtrooms.
11 Everybody have a good evening. Thank
12 you very much.
13 MR. MERRETT: Your Honor?
14 THE COURT: Wait a minute. We need to
15 wait for our court reporter.
16 MR. MERRETT: Your Honor, as I said,
17 Ms. Gogolla's father has had a heart attack
18 and she needs to go to Daytona Beach to see
19 him.
20 THE COURT: Okay.
21 MR. MERRETT: Apparently, it's a rather
22 grave matter and I'm asking the court to
23 excuse her attendance tomorrow and until she
24 is able to get back.
25 MR. POPE: We have no objection to that,
435
1 Your Honor.
2 THE COURT: That's granted, and if we
3 can proceed, you going to be in touch with
4 her?
5 MR. MERRETT: I can be, Your Honor.
6 THE COURT: If I need her back and all,
7 then --
8 MR. MERRETT: I'll make sure I can get
9 her, Judge.
10 THE COURT: All right. Basically, I'm
11 going to let the record reflect she's waiving
12 presence for the proceedings now and has a
13 family emergency and we'll just go from that.
14 I'll deal with it that way, okay?
15 MR. MERRETT: Thank you, Your Honor.
16 THE COURT: Also, we'll secure the
17 courtroom again so you can leave whatever you
18 would like to leave and if we don't finish
19 tomorrow, we'll go Tuesday and we'll just
20 keep working at it.
21 (Thereupon, the trial was adjourned to
22 reconvene at 9:00 A.M.)
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