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1 1 IN THE UNITED STATES DISTRICT COURT 2 FOR THE DISTRICT OF UTAH 3 CENTRAL DIVISION 4 5 UNITED STATES OF AMERICA, ) ) 6 Plaintiff, ) ) 7 vs. ) Case No. 2:05-CR-410 TS ) 8 JAMES MOONEY and LINDA ) MOONEY, and NICHOLAS STARK, ) 9 ) Defendants. ) 10 ____________________________) 11 12 Detention Hearing 13 14 15 BEFORE THE HONORABLE SAMUEL ALBA 16 June 28, 2005 17 18 19 Transcript of Magnetically Recorded Hearing 20 21 22 23 Geri Jardine ALPHA COURT REPORTING SERVICE 24 062805GJ P.O. BOX 510047 SALT LAKE CITY, UTAH 25 Phone: (801) 532-5645 Fax: (801) 495-9333
2 1 Appearances of Counsel: 2 For the Plaintiff: VEDA M. TRAVIS Assistant U.S. Attorney 3 185 South State Street, #400 Salt Lake City, Utah 84111 4 For the Defendant UTAH FEDERAL DEFENDER OFFICE 5 James Mooney: BY: KRISTEN R. ANGELOS Attorney at Law 6 46 West Broadway, Suite 110 Salt Lake City, Utah 84101 7 For the Defendant CORPORON & WILLIAMS 8 Linda Mooney: BY: MARY C. CORPORON Attorney at Law 9 808 East South Temple Salt Lake City, Utah 84102 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
3 1 I N D E X 2 Witness 3 Rodney Holliday 4 Direct Examination by Ms. Travis 6 5 Cross-Examination by Ms. Corporon 14 6 Cross-Examination by Ms. Angelos 28 7 Redirect Examination by Ms. Travis 34 8 Recross-Examination by Ms. Corporon 35 9 Jeffrey Vernon Merkey 10 Direct Examination by Ms. Travis 37 11 Cross-Examination by Ms. Corporon 41 12 Cross-Examination by Ms. Angelos 45 13 Jim Pritchard 14 Direct Examination by Ms. Travis 48 15 Cross-Examination by Ms. Corporon 53 16 Terri Holland 17 Direct Examination by Ms. Travis 58 18 Cross-Examination by Ms. Corporon 68 19 Cross-Examination by Ms. Angelos 73 20 Redirect Examination by Ms. Travis 77 21 Recross-Examination by Ms. Corporon 78 22 Recross-Examination by Ms. Angelos 78 23 24 25
4 1 INDEX (cont.) 2 Witness 3 Rob Riding 4 Direct Examination by Ms. Travis 79 5 Cross-Examination by Ms. Angelos 81 6 Redirect Examination by Ms. Travis 83 7 Recross-Examination by Ms. Angelos 84 8 9 10 EXHIBITS RECEIVED INTO EVIDENCE 11 Defendant's Exhibit 1 72 12 13 14 15 16 17 18 19 20 21 22 23 24 25
5 1 Salt Lake City, Utah, June 28, 2005 2 P R O C E E D I N G S 3 THE COURT: All right. Let's go on the record in 4 the matter of the United States versus James Mooney and 5 Linda Mooney. This matter is before the Court for a 6 detention hearing. When we last appeared on this matter 7 I ordered pretrial to prepare a report on this case. In 8 fact, Ms. Williamson has done so. I've had an 9 opportunity to review the reports on each of the 10 defendants. 11 On behalf of the government, anything to add at 12 this time? 13 MS. TRAVIS: We do, Your Honor. We would like to 14 present the testimony of five witnesses that are here 15 today. 16 THE COURT: Okay. Call your first one. 17 MS. TRAVIS: The United States calls Rodney 18 Holliday. 19 THE COURT: Just stand right there and be sworn, 20 please. 21 RODNEY HOLLIDAY 22 was duly sworn, was examined and 23 testified as follows: 24 THE COURT: Take the stand, give us your 25 name for the record, and spell your last name.
6 1 THE WITNESS: Rodney Holliday, 2 H-O-L-L-I-D-A-Y. 3 THE COURT: Proceed. 4 DIRECT EXAMINATION 5 BY MS. TRAVIS: 6 Q. Mr. Holliday, where are you employed? 7 A. With the Drug Enforcement Administration. 8 Q. In what capacity? 9 A. As a special agent. 10 Q. How long have you been a special agent with the 11 DEA? 12 A. Approximately six and a half years. 13 Q. And are you one of the case agents in this matter 14 now before the Court? 15 A. Yes, I am. 16 Q. And in that capacity have you had an opportunity 17 to review the case file from the Utah County Attorneys 18 Office regarding the arrests of James and Linda Mooney 19 in connection with peyote distribution? 20 A. Yes, I have. 21 Q. When did those arrests occur? 22 A. November 2000. 23 Q. Following the arrests of the Mooneys did Utah 24 County move forward with that prosecution? 25 A. Yes, they did.
7 1 Q. And was that prosecution ongoing in 2001? 2 A. Yes, it was. 3 Q. And in that year, although facing charges for 4 peyote distribution, did James and Linda Mooney continue 5 to obtain peyote? 6 A. Yes, they did. 7 Q. How do you know? 8 A. I have a copy of a sales receipt from Salvador 9 Johnson, who is a registered peyote distributor in 10 Texas, to James Mooney and it's dated February 17th of 11 2001. 12 Q. Did you also have an opportunity to interview 13 Salvador Johnson? 14 A. Yes, I did. 15 Q. What did Mr. Johnson tell you? 16 A. Mr. Johnson sold peyote to the Mooneys in the 17 past. But in -- sometime in 2001 or so he quit selling 18 to them and stated that he would not sell peyote to them 19 unless they could prove -- provide proper document that 20 he was requiring. 21 Q. And according to Mr. Johnson, were they able to 22 provide that proper documentation? 23 A. No, they were not. 24 Q. Now you've mentioned Salvador Johnson is in 25 Texas; is that correct?
8 1 A. Yes, he is. 2 Q. Is that where peyote grows? 3 A. Yes, it does. 4 Q. And is it -- is the harvesting of peyote 5 regulated by the Texas Department of Public Safety? 6 A. Yes, it is. 7 Q. And you've indicated prior to the arrests in 8 November of 2000 the Mooneys were, in fact, obtaining 9 their peyote from Salvador Johnson? 10 A. Yes, they were. 11 Q. Now you've indicated that after the arrests in 12 November of 2000 the Mooneys continued to obtain peyote 13 and you've mentioned Salvador Johnson's sales receipt. 14 Do you also have a videotape related to peyote 15 ceremonies in 2001? 16 A. Yes. There was a newscast in a -- September of 17 2001 and in it James Mooney had traveled to New York and 18 in the newscast he talks about conducting peyote 19 ceremonies in New York after September 11th. 20 Q. All right. Did you also interview an official at 21 the Texas Department of Public Safety named Jodie 22 Patterson regarding the Mooneys attempts to obtain 23 peyote while being prosecuted by Utah County? 24 A. Yes, I did. 25 Q. What did she tell you?
9 1 A. She stated that the Mooneys had sent up 2 documentation attempting to continue to purchase peyote 3 and she basically told them that Texas DPS does not 4 authorize people to purchase or not to purchase, that is 5 up to the distributor, and Texas DPS monitors the 6 distributor. 7 Q. And did Jodie Patterson, in fact, provide you 8 with documents that she had received from the Mooneys? 9 A. Yes, she did. 10 Q. Based on your investigation, would you consider 11 those documents to be a fraudulent representation? 12 A. Yes, I would. 13 Q. Agent Holliday, following the Utah Supreme 14 Court's ruling in State v. Mooney, did the DEA deliver a 15 letter to James and Linda Mooney from Richard Lambert, 16 Chief of the Criminal Division of the United States 17 Attorneys Office? 18 A. Yes, we did. 19 Q. And do you have a copy of that letter here also? 20 A. Yes, I do. 21 Q. And approximately when was that letter delivered 22 to James and Linda Mooney? 23 A. August 26th of 2004. 24 Q. And did that letter advise the Mooneys that the 25 federal government was not bound by the Utah State
10 1 Supreme Court's decision and that the federal government 2 considered the Mooneys to be in violation of federal 3 drug laws? 4 A. Yes, it did. 5 Q. Did the letter also advise the Mooneys that the 6 United States was reviewing their prior conduct for 7 possible charges? 8 A. Yes, it did. 9 Q. Following the notice given to James and Linda 10 Mooney in that letter, have James and Linda Mooney 11 continued to conduct peyote ceremonies? 12 A. Yes, they have. 13 MS. CORPORON: Objection, Your Honor, foundation. 14 THE COURT: The objection's overruled. 15 Q. (BY MS. TRAVIS) How do you know? 16 A. One item is their Web site for their church. 17 Again, the notice on it, ceremonies are again being 18 conducted. 19 Q. And, in fact, you're aware that the Grand Jury 20 returned an indictment in this matter on June 15th of 21 2005? 22 A. Yes. 23 Q. And that morning did the DEA go on to Web site of 24 James and Linda Mooney's church, and find that item? 25 A. Yes, we did.
11 1 Q. And what does that item indicate? 2 A. It states those wanting to participate in Native 3 American ceremonies are welcome to call Oklevueha NAC 4 for times and locations. Ceremonies available at this 5 time including breath, sacred pipe, sweat lodge and 6 medicine. Until all legal actions are completed, 7 medicine ceremonies will be under the direction of 8 roadmen from other NACs but will be organized by James. 9 This is done to create legal safety for participants. 10 Q. And based on your knowledge in this 11 investigation, what is medicine referred to? 12 A. Peyote. 13 Q. Agent Holliday, have you also had an opportunity 14 to interview people who attended peyote ceremonies 15 conducted by James and Linda Mooney? 16 A. Yes, I have. 17 Q. Have you also had an opportunity to read the 18 transcripts of testimony by such people during the 19 preliminary hearing held in the State Court matter? 20 A. Yes, I have. 21 Q. Based on those interviews and based on the 22 transcripts that you've read, have the Mooneys used 23 peyote in a traditional religious ceremony? 24 A. According to the people we've interviewed and 25 some of the documents we've seized, it seems to be more
12 1 of a therapy type environment instead of a religious 2 ceremony. 3 Q. Are you also in possession of documents which 4 establish that, in fact, the Oklevueha Church has been 5 using peyote for therapy and not religion? 6 A. Yes, I am. 7 Q. What are those documents? 8 A. From Nicholas Stark we've seized documents that 9 basically give almost a doctor's overview of a patient. 10 It also had prescriptions for peyote such as four caps 11 today, two caps a day for one week, two caps extra two 12 hours as needed up to six caps extra, not to exceed 13 eight. We have pages of documentation of daily 14 distribution to individuals and how much was 15 distributed, and then we also have copies of e-mails 16 sent from Nick Stark to Lynne Whitesides, who was 17 basically the manager at the church, outlining his daily 18 distributions. 19 Q. Let's talk about Nick Stark. Who is Nick Stark? 20 A. Nick Stark is -- he calls himself a shaman. He 21 is also a medicine man that works underneath James 22 Mooney. 23 Q. And you also mentioned Lynne Whitesides. Did you 24 interview Lynne Whitesides about those e-mails? 25 A. Yes, I did.
13 1 Q. And did she verify to you that those were in 2 reference to peyote? 3 A. Yes, she did. 4 Q. Agent Holliday, what does your investigation 5 indicate regarding payment received by the Mooneys for 6 peyote? 7 A. It was strongly encouraged that participants make 8 a $200 donation to attend a peyote ceremony. 9 Q. Do you have also receipts from the Oklevueha 10 Church indicating people received peyote and paid for 11 peyote which was not used during a ceremony? 12 A. We have permission to carry notes, where people 13 were provided a note that gives them permission to carry 14 144 buttons of peyote for their own personal religious 15 sacrament. 16 Q. So that would not be in connection with a 17 ceremony by the church? 18 A. Yes. 19 Q. Agent Holliday, are you also in possession of a 20 letter from James Mooney and Oklevueha Church dated 21 March 22, 2005 in which Mr. Mooney threatens agents of 22 the United States for legal action if those agents 23 attempt to do their duty? 24 A. Yes, I am. 25 Q. Are you also in possession of a news article
14 1 documenting similar threats made by James Mooney to Utah 2 state senators? 3 A. Yes, I am. 4 Q. And what senator in particular? 5 A. It was Senator John Valentine. 6 Q. And according to the news article you have, what 7 was Senator Valentine's response? 8 A. Senator Valentine was quoted as saying, I will 9 not stand to be threatened with a lawsuit for doing our 10 job. I am leaving and encourage all my colleagues to do 11 the same. Valentine said after the meeting that the 12 threat is probably over the line and possibly a criminal 13 violation itself. He is very close to the line of 14 extortion, attempting to illicit a result from the 15 legislature by threats or intimidation. 16 MS. TRAVIS: Your Honor, I have nothing further 17 of this witness at this time. 18 THE COURT: Cross-examination? 19 CROSS-EXAMINATION 20 BY MS. CORPORON: 21 Q. Sir, you are aware that agents of the Drug 22 Enforcement Administration went to the Mooney's house to 23 effect an arrest in this case the weekend before last, 24 correct? 25 A. Yes, I am.
15 1 Q. And the agents who appeared at the house 2 identified themselves as agents of the Drug Enforcement 3 Administration, right? 4 A. Yes. 5 Q. And knocked on the door, right? 6 A. Yes, I did. 7 Q. Called out to the people inside the house, right? 8 A. I never remember calling out. I remember 9 knocking on the door. 10 Q. Okay, and the people who responded inside the 11 house were minor children, correct? 12 A. No. I did not see any minor children. 13 Q. Okay. Who did you see inside the house? 14 A. We talked to Justin Schoenrock, I believe is his 15 name. I don't believe he's a minor. 16 Q. Okay. A child then of the Mooneys is who you 17 spoke to? 18 A. We talked to a young adult who identified himself 19 as Justin Schoenrock. I don't know if he is a child of 20 theirs. 21 Q. Okay. You have no idea it's a blood relation of 22 theirs or not? 23 A. I believe he said he was a stepson of James. 24 Q. All right, and to him you identified yourself as 25 a DEA agent?
16 1 A. Yes, I did. 2 Q. And the agents appearing at that event had 3 windbreakers or jackets on that said DEA in large 4 letters across it, correct? 5 A. Yes, some did. 6 Q. And the Mooneys, the defendants in this case, 7 were not present at that particular event, correct? 8 A. That's correct. 9 Q. Yet they were at that very same house Thursday, 10 five days later, when you came back to arrest them? 11 A. Yes. 12 Q. Now the defendant in this case, and specifically 13 I want to talk to Mrs. Mooney, she was arrested in 14 November of 2000, correct? 15 A. Yes. 16 Q. She was arrested in Utah County for prosecution 17 in Utah County? 18 A. Yes, she was. 19 Q. And she was released on bond at that time, 20 correct? 21 A. Yes. 22 Q. Lived at liberty, in her residence in Utah, from 23 2000 until a Utah Supreme Court decision, adverse to the 24 prosecution in that case, in the summer of 2004, 25 correct?
17 1 A. I don't know that as a fact. I don't know that 2 she lived there during that time. 3 Q. She was never accused of a violation of the terms 4 and conditions of her bail and release from the -- from 5 Utah State Court, correct? 6 A. Yes, as far as I'm aware, yes. 7 Q. What I said is correct, right? 8 A. That she lived there in Utah? I do not know if 9 she lived in Utah County or not. 10 THE COURT: No. The next question, the follow-up 11 question is whether there were any actions taken on her 12 release conditions. 13 THE WITNESS: I have no knowledge of any actions 14 taken against her. 15 THE COURT: All right. 16 Q. (BY MS. TRAVIS) And -- okay, this individual 17 that you spoke to, a Salvador Johnson who is a 18 registered peyote dealer in the state of Texas, is -- 19 what city does he reside in? 20 A. It's Mirando City. 21 Q. How do you spell that? 22 A. M-I-R-A-N-D and I don't remember if it's an A or 23 an O on the end. 24 Q. Mirando City? 25 A. Yes.
18 1 Q. And his last transaction with anyone involved 2 with the Mooneys that you're aware of is 2001, correct? 3 A. No. That was the last transaction with James 4 Mooney that we're aware of. We have heard of other 5 people down there attempting to purchase on his behalf. 6 Q. Okay. But the transaction that Salvador Johnson 7 told you about was between James Mooney and Mr. Johnson, 8 correct? 9 A. Correct. 10 Q. It did not involve Mrs. Mooney, the defendant, 11 female defendant? 12 A. No, he did not mention her. 13 Q. You indicated that there was a 2001 video of a 14 ceremony conducted immediately after September 11th, 15 correct? 16 A. Yes, I did. 17 Q. And that it was James Mooney who appeared on the 18 video, correct? 19 A. Correct. 20 Q. Mrs. Mooney does not appear on the video, 21 correct? 22 A. Correct. 23 Q. And just does not make any kind of a statement 24 that you're aware of about participating in any ceremony 25 for September 11th?
19 1 A. That's correct. 2 Q. The -- what is your training and background in 3 terms of Native American tribal configurations and 4 Native American religious ceremonies? 5 A. Basically what I've researched on my own and 6 talking with people associated with the Native American 7 Church since this case has began. 8 Q. When you say the Native American Church, are you 9 talking about a Navajo tribal church? 10 A. We've talked with people from the Native American 11 Church of North America and then also other affiliates. 12 Q. Okay. It's your understanding -- is it fair to 13 say that at one point in time there were hundreds of 14 Native American tribes in North America and Central 15 America, correct? 16 A. Yes. 17 Q. And that each of those had or may have had 18 distinctive religious ceremonies and observances? 19 A. Yes. 20 Q. And you don't purport to know how many tribes 21 exist -- existed then, exist now, or what all their 22 religious ceremonies are? 23 A. No, I don't. 24 Q. You said that you have viewed a Web site that is 25 operated by, quote, unquote, the Mooneys, the two people
20 1 who are present here today? 2 A. It is a church Web site that they are the 3 founders and also I believe he's listed as the 4 CEO -- the CEO registered agent and co-founder of the 5 church that it is that church's Web site. 6 Q. Okay. What is the name of the church? 7 A. It's Oklevueha EarthWalks Native American Church 8 of Utah. 9 Q. Okay, and who is listed as the CEO of that 10 organization? 11 A. In the letter that was delivered to us, signed by 12 James Mooney, he lists himself as the CEO, registered 13 agent, and co-founder. 14 Q. Okay. Mrs. Mooney is not listed as an officer or 15 agent of that church; is that correct? 16 A. I have seen documentation listing her. 17 Q. What documentation? 18 A. Let me see if I have some right here. 19 I don't have any documentation in front of me, 20 but I recall that she was listed on several different 21 documents. The directors and people associated with the 22 church have changed several times. 23 Q. So you've seen documents listing her as being 24 associated with the church? 25 A. Yes.
21 1 Q. You said that there was some individual named 2 Jodie whom you have interviewed? 3 A. Jodie Patterson. She's a supervisor for Texas 4 Department of Public Safety. 5 Q. Okay. How do you spell her last name? 6 A. P-A-T-T-E-R-S-O-N. 7 Q. Oh, okay, and you interviewed her in connection 8 with Mr. and Mrs. Mooney? 9 A. Yes, I did. 10 Q. And her information was pertaining to Mr. Mooney; 11 is that correct? 12 A. That's correct. 13 Q. She didn't have any information for you 14 pertaining to my client, Mrs. Mooney? 15 A. I don't remember her specifically saying anything 16 about Linda Mooney. 17 Q. May I see a copy -- the copy that you have of the 18 letter that you have of State versus Mooney from -- 19 regarding State versus Mooney by Mr. Lambert to the 20 Mooneys? 21 Now through all of this, when did you begin the 22 investigation of James Mooney and Linda Mooney, your 23 personal involvement? 24 A. My personal involvement began approximately 25 September of '04.
22 1 Q. Okay, and when your personal involvement with the 2 Mooneys began, they were residing in Utah County, 3 correct? 4 A. Yes, they were. 5 Q. And specifically at a -- in a community near 6 Spanish Fork and Utah County? 7 A. That's correct. 8 Q. The letter from Richard Lambert, Criminal 9 Division, Chief of the U.S. Attorneys Office, advised 10 the Mooneys, the two defendants here, moreover please be 11 advised that this office is reviewing your conduct for 12 of consideration of seeking federal charges, correct? 13 A. Correct. 14 Q. And when the Mooneys were located, specifically 15 when Linda Mooney was arrested last Thursday, she was at 16 the same residence in Utah County in which this letter 17 was directed? 18 A. That's correct. 19 Q. You talked about various ceremonies being 20 referenced on the church Web site that you've described. 21 What specifically were those ceremonies that you've 22 referenced? 23 A. Ceremonies available at this time include breath, 24 sacred pipe, sweat lodge and medicine. 25 Q. Okay, and you have no particular training or
23 1 information -- excuse me, no particular training or 2 experience to inform you what a ceremony is for each of 3 those particular observances in this particular church; 4 is that fair to say? 5 A. I have talked to people lightly about the 6 different ceremonies. Mainly we've concentrated on the 7 medicine ceremony or peyote ceremony. 8 Q. And there are non-peyote versions of the medicine 9 ceremony and peyote versions of medicine ceremony, 10 correct? 11 A. Everybody I have talked to has referred to peyote 12 as medicine, and when I've talked about a medicine 13 ceremony they have referred to it as a peyote ceremony, 14 every time I've talked to somebody involved in this. 15 Q. But you've also heard that there are non-peyote 16 ceremonies in this church, correct? 17 A. Correct. 18 Q. And the Web site itself doesn't specifically 19 refer to peyote ceremonies, correct? 20 A. It does talk about peyote on the Web site. 21 Q. What does it say about peyote on the Web site? 22 A. It says that the church accepts peyote as a 23 sacred sacrament. I don't have -- the other names are 24 partially cut off, but it lists several other type of 25 hallucinogenic drugs that it also accepts and it talks
24 1 about accepting people from other religions and other 2 names such as medicine man, priest, rabbi, shaman, water 3 pore and such people with the church also. 4 Q. And that's the only reference to peyote that 5 you've seen, is a general declaration of principle or 6 religious belief? 7 A. On the Web site itself? 8 Q. Yes. 9 A. There's also articles concerning peyote on the 10 Web site. 11 Q. Again, in terms of a declaration of religious 12 principles or a description of religious observances, 13 correct? 14 A. Right, correct. 15 Q. You said that you interviewed people who have 16 participated in ceremonies and you said with the 17 defendants in this case, and I'm concerned -- well, let 18 me ask you first of all, how many people have you 19 interviewed participated in any kind of peyote ceremony 20 with either defendant in this case? 21 A. I don't know the exact number off of my head. 22 Possibly about ten different subjects and then I've also 23 read courtroom testimony. 24 Q. Courtroom testimony from what proceedings? 25 A. From the Utah County case where people have
25 1 talked about ceremonies. 2 Q. Okay, and in the Utah County case, all of the 3 ceremonies described in that testimony were ceremonies 4 that occurred before the arrests in November of 2000, 5 correct? 6 A. Yes, they were. 7 Q. And the other people who -- okay. You said that 8 you've interviewed people in addition to reviewing 9 testimony? 10 A. Yes. 11 Q. Who -- how many people have you interviewed live 12 as opposed to reviewing their testimony from the Utah 13 County court proceeding? 14 A. Just people who've attended peyote ceremonies? 15 Q. Uh-huh. 16 A. I'd say approximately eight. Some other people 17 in my office, the cold case agents, also done interviews 18 without me present, so -- 19 Q. Okay. Who have you interviewed who have attended 20 a peyote ceremony with either of these two defendants 21 since November of 2000? 22 A. I can't recall anybody we've interviewed that's 23 attended one since then. 24 Q. Okay, and so of all the people that you have 25 interviewed that have participated in peyote ceremonies
26 1 with either of these defendants, they all participated 2 with them before November of 2000? 3 A. The people we interviewed we took off the 4 historical records that were seized, and the names, and 5 those are the people that we've tracked down and 6 interviewed, yes. 7 Q. So your answer to my question is yes? 8 A. Yes. 9 Q. All the people you've interviewed have 10 participated in peyote ceremonies with the defendants 11 did so before November of 2000? 12 A. Yes. 13 Q. And you've not interviewed anybody who's 14 participated in a peyote ceremony with the defendants 15 since November of 2000, correct? 16 A. Correct. 17 Q. You talked about documents that you had obtained 18 from a codefendant in this case, Mr. Stark, having to do 19 with peyote. What documents are those? 20 A. It was a copy of a black Mead spiral notebook, 21 again, that listed basically a medical type summary of 22 different people who came to solve, and then there was 23 also daily distribution lists, the date showing the 24 different names and the amount administered to each 25 person. The amount administered is listed as buttons
27 1 which is a common term for the peyote. Also -- 2 Q. That was some in Stark's house, correct? 3 A. Yes. 4 Q. And he does not share a residence or did not 5 share a residence with Mrs. Mooney, correct? 6 A. Correct. 7 Q. I'm sorry, I cut you off. You were about to 8 finish describing this document. 9 A. Right, and then from James Mooney's hard drive we 10 had documents where Nick Stark had e-mailed to Lynne 11 Whitesides, who was working there at the church, the 12 same daily distribution, dosage by day and by name and 13 amount. 14 Q. Okay. Those are communications from Nick Stark 15 to a Lynne Whitesides about distribution to other 16 people, not to Mrs. Mooney, correct? 17 A. Correct. 18 Q. So this is not on Mrs. Mooney's computer, right? 19 A. I don't know exactly who had access to the 20 computer there. It was a computer seized by Utah County 21 during the arrest warrant. 22 Q. Okay, and it deals with communications from Nick 23 Stark reporting distributions to Lynne Whitesides? 24 A. Yes. 25 Q. Now Lynne Whitesides, is that L-Y-N-N Whitesides?
28 1 A. It's spelled here as L-Y-N-N-E. 2 Q. Okay, and that's a female? 3 A. Yes, it is. 4 Q. You talked about supposed threats by Mr. Mooney, 5 James Mooney, to Senator Valentine and to the Utah State 6 Legislature. Those were threats that he would bring 7 legal action in the state of Utah; is that correct? 8 A. That's my understanding, yes. 9 Q. And the response from the senator, an elected 10 official who was speaking publicly after that 11 conversation, was that he viewed the threats of the 12 lawsuit as being tantamount to extortion? 13 A. That's correct. 14 Q. There was nothing in that situation that involved 15 Mrs. Mooney, correct? 16 A. Not that I'm aware of. 17 MS. CORPORON: Nothing further. 18 THE COURT: On behalf of Mr. Mooney? 19 MS. ANGELOS: I just have a couple of questions, 20 Mr. Holliday. I hope you don't mind. 21 CROSS-EXAMINATION 22 BY MS. ANGELOS: 23 Q. Is it true that Mr. Mooney was also arrested in 24 the year of 2000 along with Mrs. Mooney? 25 A. That's correct.
29 1 Q. And she -- he was also released on bond? 2 A. Yes, he was. 3 Q. And he also lived at the residence in Spanish 4 Fork with Mrs. Mooney during that time? 5 A. I assume he did. I haven't verified that. 6 Q. And the Utah Supreme Court ruling came down in 7 2004; is that correct? 8 A. Yes. 9 Q. So they lived -- they were out for approximately 10 four years? 11 A. Correct. 12 Q. Are you personally aware of any violations that 13 that ever occurred, violations of their release? 14 A. No, I'm not. 15 Q. You indicated that on their Web site there was an 16 indication that their church was going to continue to 17 conduct peyote ceremonies; is that correct? 18 A. That's correct. 19 Q. And they indicated that it would encompass sweat 20 lodges and also what you described as sacred pipe and 21 also medicine; is that correct? 22 A. That's correct. 23 Q. With regards to the medicine, and you're talking 24 specifically the peyote, did it indicate on the Web site 25 that they would be -- that the ceremonies would be
30 1 conducted by other persons other than James Mooney? 2 A. It said that it will be conducted under the 3 direction of roadmen from other NACs, but will be 4 organized by James. 5 THE COURT: NAC, it stands for what? 6 THE WITNESS: Native American Church. 7 Q. (BY MS. ANGELOS) So other members from the 8 Native American Church would actually be participating 9 in those ceremonies? 10 A. That is what this states, yes. 11 Q. With regards to the e-mails from Nick Stark, I 12 just want to make sure, these were e-mails sent from 13 Nicholas Stark talking about distributions to other 14 people that Mr. Stark, in fact, engaged in; is that 15 correct? 16 A. That's correct. 17 Q. And it had nothing to do with suggesting that 18 James Mooney was actually engaged in those 19 distributions, right? 20 A. Well, he was reporting these distributions to 21 James Mooney. 22 Q. Fine. He was reporting the distributions, but 23 there's nothing to suggest that Mr. Mooney was actually 24 engaged in distributing these himself, correct? 25 A. To these individuals -- I do know some of them
31 1 attended a ceremony with James Mooney and Linda Mooney. 2 But these individual distributions referred to here I 3 have no indication of anybody else besides Nick Stark. 4 Q. And when you talk about participating in a 5 ceremony with James Mooney and Linda Mooney you have no 6 idea what occurred in that ceremony, correct, 7 personally? 8 A. Peyote was distributed in those ceremonies. 9 Q. And when was this? When did this occur? 10 A. I don't have the exact date here. But they were 11 ceremonies prior to their arrest. 12 Q. Prior to their arrest? 13 A. That's correct. 14 THE COURT: Which arrest? 15 THE WITNESS: Their November of 2000 arrest by 16 Utah County. 17 THE COURT: Okay, and so they predated 2000? 18 THE WITNESS: Yes. They were 2000 or prior. 19 Q. (BY MS. ANGELOS) So you're talking about 20 activities that occurred prior to the 2000 date? 21 A. That's correct. 22 Q. And, again, you have no personal knowledge that 23 they were engaged in any ceremony activities after the 24 2000 -- after they were arrested; is that correct? 25 A. I have a sales receipt for peyote to James Mooney
32 1 and then I also have the newscast where James Mooney 2 admits during the newscast to conducting peyote 3 ceremonies in New York in September of 2001. 4 Q. But you have no personal involvement with regards 5 to those, just those two things, correct? No personal 6 knowledge yourself? 7 A. Correct. 8 Q. You mentioned that there was suggestion that 9 payment may have been received in or was asked for $200 10 donations; is that correct? 11 A. That's correct. 12 Q. Are you a member of any religion? 13 A. Yes. 14 Q. What religion, Mormon? 15 A. Methodist. 16 Q. Methodist, and do you pay tithing? 17 A. Not currently. I'm not attending a church at 18 this time. 19 Q. If you were attending the church and were 20 involved would you be paying a tithing? 21 A. I have in the past, yes. 22 Q. Okay, and part of that tithing is to support the 23 church and support the church activities and support 24 those ceremonies, correct? 25 A. Correct.
33 1 Q. Okay. So if you were a member of that church you 2 would be -- 3 THE COURT: Expected, not required. 4 Q. (BY MS. ANGELOS) Expected to pay tithing to 5 participate in these ceremonies, correct? 6 A. The ceremonies I attended, they would pass around 7 a collection plate sometime during the ceremony for 8 collections. In my church we never called and made a 9 reservation and then had a donation accepted when we 10 arrived. 11 Q. Are you familiar with the Mormon church? 12 A. Slightly. I'm not Mormon. 13 Q. Are you familiar that they need to pay tithing in 14 order to attend the temple ceremonies? 15 A. I have heard that, but I have no personal 16 knowledge of any of that. 17 MS. ANGELOS: Your Honor, if you will give me 18 just a second. 19 I don't think I have any further questions, Your 20 Honor. 21 THE COURT: Redirect? 22 MS. TRAVIS: Your Honor, I have just a couple of 23 quick followups. 24 25
34 1 REDIRECT EXAMINATION 2 BY MS. TRAVIS: 3 Q. Agent Holliday, when you were asked to your 4 knowledge if either of these two defendants had violated 5 their release, was your response based on the fact that 6 neither had been brought in to Utah County to face 7 violation charges? 8 A. That's correct. 9 Q. All right, and so it doesn't go to the conduct 10 that may have been occurring, it goes to whether Utah 11 County knew about that conduct? 12 A. That's correct. 13 MS. CORPORON: Objection, Your Honor, 14 argumentative. 15 THE COURT: The objection's overruled. 16 Q. (BY MS. TRAVIS) Let me ask you about Nicholas 17 Stark. Was Mr. Stark arrested in July of 2000 by -- in 18 Weber County? 19 A. Yes, he was. 20 Q. And at that time of his arrest was he 21 interviewed? 22 A. Yes, he was. 23 Q. And at the time of his arrest was his house 24 searched and peyote located at his house? 25 A. Yes, it was.
35 1 Q. And during the interview, did he indicate where 2 he obtained that peyote? 3 A. From James Mooney. 4 MS. TRAVIS: Nothing further. 5 RECROSS-EXAMINATION 6 BY MS. CORPORON: 7 Q. When was Mr. Stark arrested, that arrest that you 8 just described? 9 A. I don't remember the exact day. I believe it was 10 approximately July of 2000. 11 Q. Okay, and that's when peyote was found in his 12 house and he said that I got it from James Mooney? 13 A. Yes. 14 Q. And he didn't say anything about getting it from 15 Linda Mooney? 16 A. Correct. 17 MS. CORPORON: Nothing further. 18 THE COURT: Anything further with this witness? 19 MS. TRAVIS: No, Your Honor. 20 THE COURT: Okay. You may step down. 21 Call your next witness. 22 MS. TRAVIS: The United States calls Jeff Merkey. 23 MS. CORPORON: Your Honor, may we invoke an 24 exclusionary rule as to witnesses in this case? I 25 didn't realize they were still here in the courtroom.
36 1 THE COURT: Are there any -- who are the other 2 witnesses? 3 MS. TRAVIS: Your Honor, I have three other 4 witnesses. 5 THE COURT: Okay. You are excused. You must go 6 outside. Do not discuss your testimony with anyone 7 until you've had an opportunity to testify here. That 8 does not apply to attorneys who are involved in this 9 case. If there are other people outside, by the door, I 10 want you to come in, sit down, and close the door. 11 Swear him in. 12 What's the purpose of this witness? 13 MS. TRAVIS: Your Honor, this is -- again, goes 14 to issues with regards to the money and it also goes to 15 issues with regards to trying to obtain peyote. 16 MS. ANGELOS: Your Honor, I do have a question. 17 In -- the last witness has indicated that a lot of his 18 testimony was a result of the 2000 arrest. I'm 19 wondering if these witnesses are going to be talking 20 about peyote prior to the 2000 or if we have anything 21 between 2000 and 2004 which would be more relevant, Your 22 Honor. 23 MS. TRAVIS: Well, that's our intent, Your Honor, 24 to present additional evidence with regards to the 25 Mooneys' conduct following the arrest.
37 1 THE COURT: Okay. Swear him in. 2 JEFFREY VERNON MERKEY 3 was duly sworn, was examined and 4 testified as follows: 5 THE COURT: Give us your name for the record, 6 please, and spell your last name and, again, pull the 7 microphone towards you. I want to make sure that it 8 amplifies your voice. 9 THE WITNESS: Yes, sir. 10 THE COURT: You can't move the chair up to it, so 11 that's all you can do. Okay? 12 THE WITNESS: Yes, sir. Jeffrey Vernon Merkey, 13 M-E-R-K-E-Y. 14 DIRECT EXAMINATION 15 BY MS. TRAVIS: 16 Q. Mr. Merkey, are you a member of a federally 17 recognized Indian tribe? 18 A. I am. 19 Q. And what tribe is that? 20 A. The Cherokee Nation. 21 Q. And are you currently serving as president of the 22 Utah Native American Church? 23 A. I am. 24 Q. How long have you served in that position? 25 A. Since 2001.
38 1 Q. Mr. Merkey, do you know James and Linda Mooney? 2 A. I do. 3 Q. And when did you first meet them? 4 A. I met them in June of 2001. 5 Q. And is it fair to say that was after the 6 prosecution was initiated by Utah County? 7 A. Yes, ma'am. 8 Q. At some point did you terminate your relationship 9 with them? 10 A. I did. 11 Q. And when was that? 12 A. September of 2001. 13 Q. During the time between June of 2001 and 14 September of 2001, did either James or Linda Mooney 15 approach you and ask you to obtain peyote for them? 16 A. Yes. 17 Q. And when did that happen? 18 A. It occurred on numerous occasions during the 19 months of July and August and September of 2001. 20 Q. And was it James or Linda or both? 21 A. Both. 22 Q. All right. What was your response? 23 A. I asked Mr. Mooney to provide me with 24 documentation that he was a member of an Indian Nation 25 or that he was eligible for membership. I then
39 1 submitted the documentation to the genealogy department 2 of the Cherokee Nation. They responded and told me the 3 documentation was fraudulent. 4 Q. And based on that information you received, did 5 you refuse to obtain peyote for the Mooneys? 6 A. Initially, I approached Mr. Mooney and I asked 7 him to tell me the truth as to whether he was truly a 8 Native American. He made claims that he was a member of 9 our people and at the time I attempted to give him the 10 benefit of the doubt. However, he failed to come clean 11 with me and provide me with any documentation whatsoever 12 that he was legitimate. 13 Q. Mr. Merkey, since the Mooneys approached you and 14 tried to have you obtain peyote for them, have you 15 received information that the Mooneys have attempted to 16 have other Native Americans obtain peyote from them? 17 A. Yes. 18 Q. For them? 19 A. Yes. I was contacted by Salvador Johnson two 20 months ago. We were having a discussion about peyote 21 orders that our church routinely sends through the 22 redman to purchase peyote for ceremonies on the 23 (inaudible) Indian Reservation and the Ute Indian 24 Reservation. Mr. Johnson relayed that an individual 25 named, I believe Gary Tom, had approached him with a
40 1 peyote authorization permit to purchase peyote on behalf 2 of James Mooney and it was signed by James Mooney. And 3 Mr. Johnson related that he called Jodie Patterson. 4 Jodie Patterson stated that his church was not a 5 legitimate Native American Church and that it was not in 6 compliance with the state of Texas or federal laws and 7 she advised Mr. Johnson to deny selling him peyote. 8 Q. All right. Mr. Merkey, are you named in a civil 9 suit that's been filed in this court by James and Linda 10 Mooney? 11 A. I am. 12 Q. And is the attorney for the Mooneys in that case 13 an individual by the name of Randall Marshall? 14 A. He is. 15 Q. And following the filing of that suit, did 16 Mr. Marshall ever speak to you with regards to your 17 testimony in that case? 18 A. He did. 19 Q. What did he say to you? 20 A. He stated that if I cooperated with the federal 21 authorities or provided any information that I would be 22 subjected to continuing prosecution in the federal court 23 and damages for defaming the Mooneys by cooperating with 24 federal authorities. 25 Q. Now you've indicated that you are president of a
41 1 Utah Native American Church? 2 A. I am. 3 Q. Are you familiar with traditional Native American 4 customs and traditions with regards to religious 5 ceremonies? 6 A. Very familiar. I was raised in an Indian 7 culture. 8 Q. And is it part of Native American religion, to 9 your knowledge, to have any form of donation of money? 10 A. Absolutely not. The United States currency was 11 not a traditional part of Native American culture. 12 MS. TRAVIS: Nothing further. 13 CROSS-EXAMINATION 14 BY MS. CORPORON: 15 Q. I'm sorry, can you spell your name for me? 16 A. M-E-R-K-E-Y. 17 Q. Thank you. Mr. Merkey, you indicate that you 18 were raised in a Native American culture and I take it 19 that that is a Cherokee culture that you were raised in? 20 A. Aniyunwiya. Cherokee is a white word. 21 Q. Okay, and in that culture have you become 22 familiar with rituals which involve the consumption of 23 peyote? 24 A. Yes. 25 Q. And, again, to use a white man's word, the peyote
42 1 is consumed as a sacrament; is that correct? 2 A. That is correct. 3 Q. In your -- you've personally participated in that 4 type of activity, correct? 5 A. I have. 6 Q. And you personally participate now in a church 7 which involves the distribution of peyote to members of 8 that church for purposes of that sacrament? 9 A. That is correct. 10 Q. Now you said that you were approached in July, 11 August, and September 2001 for the purchase of peyote, 12 correct? 13 A. That is correct. 14 Q. And you were approached by James Mooney, correct? 15 A. And Linda. 16 Q. When did Linda Mooney approach you? 17 A. They both did it together, typically. 18 Q. Okay. So the two of them would be sitting there 19 in the same place together, same room, the same -- 20 A. They were always together. She's the brains of 21 the operation. 22 Q. You said that you were contacted by Salvador 23 Johnson. When were you contacted by him? 24 A. Approximately two months ago. 25 Q. And Mr. Johnson said who specifically had
43 1 contacted him? 2 A. He stated that an individual named Gary Tom, an 3 individual who does meet the requirements to purchase 4 peyote, who is an Indian and a member of a federally 5 recognized tribe, produced the peyote authorization 6 permit for the Oklevueha Native American Church and 7 attempted to purchase peyote for James Mooney. But he 8 stated to me -- Mr. Johnson, has a list of non-approved 9 individuals, and these are American Indians that are 10 known to either sell peyote or to abuse the regulations 11 for peyote. And even though they are exempt, they are 12 not allowed to buy it. One of them is Linda Crowdog, 13 the other is Mr. Mooney, and his associates. So even 14 Native Americans who are eligible, the peyoteros keep a 15 list that they circulate that is provided by the state 16 of Texas and members of the Drug Enforcement Agency of 17 individuals known to abuse peyote or use it 18 inappropriately, and some of these are even Indians. 19 Q. Okay. So the contact you had from Salvador 20 Johnson was that somebody had approached a Gary Tom? 21 A. Yes. 22 Q. Who then approached -- okay. Somebody who was 23 trying to get peyote for the Mooneys had approached Gary 24 Tom, who had approached Mr. Johnson, who telephoned you 25 about it?
44 1 A. Correct, and Mr. Johnson called me because he 2 said what's going on up there in Utah, because he calls 3 me when he wants to know. 4 Q. Who is the somebody who approached Gary Tom? 5 A. I have no knowledge of that. I just know what 6 was relayed by Mr. Johnson. He said that he received 7 fraudulent paperwork and it was not in order. 8 Q. And Mr. Johnson didn't tell you -- strike that. 9 A. Yeah, I was confused by your last question. I'm 10 sorry. 11 Q. Finally, is it fair to say that people who are, 12 in fact, enrolled members of Native American tribes 13 don't always look like a stereotypical, Hollywood 14 description of what a Native American should look? 15 A. Our people were always fair skin. My father was 16 white. My mother is an Indian. 17 Q. Okay. 18 A. And not all Indians look the same. We're just 19 like you. We're all different. We have different hair 20 color, different eye color. We're like people anywhere. 21 We all look different and some of us have red hair, some 22 of us have green eyes, even with olive colored skin. 23 But the people of the eastern seaboard, which are the 24 people that I originate from, have always been very 25 fair.
45 1 Q. And you -- and I'm trying to make a record here 2 for a tape recorder. You yourself are, in fact, fair 3 haired, fair skinned and blue eyed, correct? 4 A. I am green eyed, 5 Q. I'm sorry, green eyed. 6 A. Which is the color of the eyes of my people. 7 Q. Okay, and with the exception of the green or blue 8 eyed, my deposition of you is fairly accurate, right? 9 A. It is. 10 Q. And you are absolutely an enrolled member of a 11 Native American tribe? 12 A. And I am of (inaudible). Would you like to see 13 my card? 14 Q. No, no. I believe you, absolutely. Thank you. 15 A. (Inaudible.) 16 THE COURT: Continue. 17 CROSS-EXAMINATION 18 BY MS. ANGELOS: 19 Q. You indicated that you are named in a civil suit 20 and that Mr. Marshall was representing Mr. Mooney; is 21 that correct? 22 A. That is correct. 23 Q. And you indicated that Mr. Marshall approached 24 you one time and indicated that if you cooperated with 25 federal authorities, problems would arise; is that
46 1 correct? 2 A. Actually, to characterize the exact situation, he 3 and I were in discussion of a pretrial conference on a 4 motion for summary judgment which had been filed in the 5 case and he made the comments. 6 Q. And this was Mr. Marshall who represented 7 Mr. Mooney, correct? 8 A. That's correct. 9 Q. It was not James Mooney himself? 10 A. It was not. 11 Q. You are a member, you've indicated, of a Native 12 American tribe, I believe it's Cherokee; is that 13 correct? 14 A. It is -- that is correct. 15 Q. And are there several branches of Native American 16 churches? 17 A. There are several branches of the church. Each 18 unique Indian culture has their own particular versions 19 of the peyote ceremony. The peyote religion was never 20 the traditional practice of any North American native 21 people. This was a practice that was adopted by the 22 southern tribes in the mid-1800's and spread northward. 23 Q. Let me ask you this: In regards to those several 24 branches, do each of those branches have different 25 bylaws?
47 1 A. Some of them do and some of them don't. However, 2 the acceptance of money is forbidden. It's not a part 3 of our culture. 4 Q. It's not a part of your culture, but with regards 5 to the church, it is possible that there are different 6 bylaws that donations could be possible, correct? 7 A. The acceptance of United States currency is not a 8 part of our culture or our traditional beliefs. 9 MS. ANGELOS: No further questions, Your Honor. 10 THE COURT: Any other questions? 11 MS. TRAVIS: No, Your Honor. 12 THE COURT: You may step down. 13 Call your next witness. 14 MS. TRAVIS: Yes, we call Jim Pritchard, and may 15 this witness be allowed to remain in the courtroom? 16 THE COURT: Yes. If he's finished with his 17 testimony he may remain. 18 Come on up and be sworn, please. 19 JIM PRITCHARD 20 was duly sworn, was examined and 21 testified as follows: 22 THE COURT: Take the witness stand. Please give 23 us your name for the record and spell your last name. 24 THE WITNESS: Jim Pritchard, P-R-I-T-C-H-A-R-D. 25 THE COURT: Thank you.
48 1 DIRECT EXAMINATION 2 BY MS. TRAVIS: 3 Q. Mr. Pritchard, do you know James and Linda 4 Mooney? 5 A. I do. 6 Q. When did you first meet them? 7 A. In the spring of 1997. 8 Q. Now at some point in your association with them 9 did you have a falling-out? 10 A. Yes. 11 Q. And why did that happen? 12 A. I felt like -- that the ceremonies were being 13 sold. I had gone back to my own tribe in Cherokee, 14 North Carolina and learned a little bit about 15 ceremonies, how they run, how they should run, what 16 should and shouldn't be done, and I began to realize 17 that what was going on in Oklevueha wasn't what we 18 should have been -- should have been doing, and I 19 brought that to his attention. 20 Q. All right. Prior to the time you had this 21 falling-out with James Mooney did you assist the Mooneys 22 with peyote ceremonies? 23 A. I did. 24 Q. And you've indicated that based on what you know 25 now about Native American ceremonies the Mooneys were
49 1 not engaged in traditional religious practices? 2 A. They were not. 3 Q. How would you characterize what the activity was? 4 A. It was more like a group therapy setting. 5 Q. And they, in fact, charged money? 6 A. Yes. 7 Q. Were most of the participants in the ceremonies 8 that you were involved with, were they Native Americans? 9 A. No, they were not. 10 Q. Is it fair to say, Mr. Pritchard, that these -- 11 that many of these people were people with emotional 12 problems? 13 A. Yes. 14 Q. In your experience with the Mooneys, did they 15 refer to peyote ceremonies as medicine ceremonies? 16 A. It was always referred to as medicine. 17 Q. Mr. Pritchard, do you know an individual Joe 18 Bennion? 19 A. Yes. 20 Q. And how do you know Joe Bennion? 21 A. Joe and I have been friends for many years. We 22 go to the Central Utah Correctional Facility together 23 down in Gunnison, to the inmates, and help down there 24 with the talking circles and the sweat lodges. 25 Q. And is Mr. Bennion, to your knowledge, an
50 1 associate of the Mooneys? 2 A. He is not. 3 Q. Was he at one time an associate of the Mooneys? 4 A. Yes. 5 Q. And according to Mr. Bennion, did he receive -- 6 when he was, in fact, an associate, did he receive 7 direction from James Mooney with regards to acts by 8 inmates at the Gunnison facility? 9 A. He did. 10 Q. And what direction did Mr. Bennion receive? 11 A. Shortly after James' arrest the first time, in 12 November of 2000, James thought that I was the CI, or 13 the confidential informant. He called Joe Bennion early 14 one morning and told Joe to tell the guys in the prison 15 to get rid of me. Joe immediately said, do you know 16 what you just said, and James said to him, this never 17 happened. I didn't mean that. Because it was -- to us 18 in a prison environment, that statement is very serious. 19 Q. Did you consider that a threat to your safety? 20 A. Absolutely. 21 Q. Mr. Pritchard, have you also recently received -- 22 THE COURT: Counsel, can we get a setting as to 23 when that occurred? 24 Q. (BY MS. TRAVIS) And you indicated this was after 25 the Mooneys were arrested in November of 2002?
51 1 A. Yes. 2 Q. And then Mr. Mooney believed that you were acting 3 as an confidential informant for Utah County? 4 A. Yes. 5 Q. Can you pin down that exact time or do you just 6 have a recollection of -- 7 A. It was just shortly after that arrest. I would 8 say between two and three months after. But I don't 9 know the exact date, no. 10 Q. All right. 11 THE COURT: Thank you. 12 Q. (BY MS. TRAVIS) Have you also received a message 13 from Mr. Mooney recently which was delivered to you by 14 Joe Bennion? 15 A. Yes. 16 Q. And what was that message? 17 A. The message is that Mr. Mooney has engaged me or 18 attempting to engage me in a civil lawsuit of which I'm 19 a defendant. He told Joe, again, early one morning that 20 if I testified -- tell Pritchard not to testify and if 21 he does he's going to jail. 22 Q. And what did you take that to mean about you 23 going to jail? 24 A. Well, James knew that I was a facilitator of 25 medicine ceremonies. He also knew at that time it was
52 1 not legal. 2 Q. For you to do that? 3 A. Absolutely. 4 Q. And did you take that to mean that he would 5 attempt to have you arrested for your conduct? 6 A. Yes. 7 Q. Mr. Pritchard, are you married? 8 A. Yes. 9 Q. And was your wife involved with you -- with James 10 and Linda Mooney during the time of your involvement? 11 A. Yes, she was. 12 Q. Did she hold a position with the Oklevueha 13 EarthWalks Native American Church? 14 A. Yes. She was one of the directors of a group or 15 a spin-off called Gatherings. 16 Q. All right. By virtue of that position, was she 17 involved with a group that went to a -- on a river trip? 18 A. Yes. 19 Q. In southern Utah? 20 A. Yes, ma'am. 21 Q. Do you recall when that was? 22 A. It would have been in between -- I don't know, I 23 don't know the exact date, no. 24 Q. Would it have been prior to the Mooneys arrest -- 25 A. Oh, yes.
53 1 Q. -- and when you were involved with them? 2 A. Approximately somewhere in 2000 or -- yeah, 2000. 3 Q. What was the purpose of the trip? 4 A. Well, the trip started out to be an invitation of 5 people to go down the river and to do medicine 6 ceremonies and sweats and those types of ceremonies, and 7 it ended up being like a women's ceremony, and my wife 8 went on that trip. 9 Q. Prior to leaving for the river, before the river 10 trip, what happened, according to your wife? 11 A. My wife told me that James was administering 12 peyote tea to most of the people that were going on that 13 trip. 14 Q. And was this in a ceremonial setting? 15 A. No, it was not. It was prior to them driving 16 down to this trip and that the people got so -- the 17 person that she was with got so into the peyote that she 18 could no longer drive and my wife had to take over the 19 driving. 20 MS. TRAVIS: Your Honor, nothing further at this 21 time. 22 CROSS-EXAMINATION 23 BY MS. CORPORON: 24 Q. Sir, this river trip that you've just described, 25 this women's ceremony river trip occurred in about 1999,
54 1 correct? 2 A. Yes, ma'am. 3 Q. Now, you became acquainted with James Mooney 4 partly because he was involved in beginning a program of 5 Native American ceremonies at the Utah State 6 Penitentiary in Gunnison, correct? 7 A. No. 8 Q. Was he involved with that at all? 9 A. Yes. 10 Q. Okay. You just knew him before that started to 11 happen? 12 A. Yes. 13 Q. Okay, and then he was involved with bringing a 14 program of Native American ceremonies to inmates at the 15 Utah penitentiary in Gunnison, correct? 16 A. Yes. Yes, ma'am. 17 Q. Now when you received a communication from 18 Mr. Bennion saying that it was coming from James Mooney 19 via Mr. Bennion, the communication was to the effect of 20 warning you that conduct of your own in the past might 21 be interpreted as illegal conduct, correct? 22 A. That's what I interpreted it as, yes, ma'am. 23 Q. And that if you spoke to federal prosecutors 24 about your own conduct you, yourself, might get 25 arrested, correct?
55 1 A. Yes. 2 Q. Are you yourself an enrolled member of a Native 3 American tribe? 4 A. No. 5 Q. And you, yourself, have been a member, however, 6 of a church or religious organization that recognized 7 peyote as a sacrament? 8 A. No. 9 Q. You've never been a member of such an 10 organization? 11 A. No, ma'am. 12 Q. Your wife has been though? 13 A. No. 14 Q. But you -- 15 A. Oklevueha NAC was not that type of ceremony or 16 that type of church. 17 Q. Okay. 18 A. Okay. They did not do ceremonies the way the NAC 19 does ceremonies. So we were not members of a true NAC. 20 Q. Okay. I am not asking you if you were members of 21 a true NAC, I'm asking if you were members of a 22 religious organization that at one point recognized 23 peyote as a religious sacrament. 24 A. No, because the religious part of this whole 25 thing was organized after I left. You have to get the
56 1 time line right. 2 Q. When did you leave the organization of which 3 Mr. Mooney was a director? 4 A. Early 2000 or late 1999. It was after an 5 incident at Strawberry Reservoir. 6 Q. Okay. 7 A. That was one of the reasons, ma'am, that I left. 8 Q. Okay, and so you haven't had much affiliation 9 with the Mooneys to observe their conduct since late 10 1999 or early 2000? 11 A. None. 12 MS. CORPORON: Nothing further. 13 THE COURT: Any questions? 14 MS. ANGELOS: No, Your Honor. 15 THE COURT: Okay. May this witness be excused? 16 MS. TRAVIS: Yes, Your Honor. 17 THE COURT: You may step down, Mr. Pritchard. 18 Thank you. 19 MS. TRAVIS: Your Honor, the United States calls 20 Terri Holland. 21 MS. ANGELOS: Your Honor, I should indicate that 22 we're still talking about -- 23 THE COURT: Hang on for a second. Before you 24 call the next witness I have two other matters that were 25 scheduled at 11 and 11:30. So we're going to take a
57 1 break on this proceeding and get those other two matters 2 and take care of them and then we'll reconvene on this. 3 MS. ANGELOS: Thank you. 4 THE COURT: And so we'll take a short recess on 5 this. 6 (Whereupon, a recess was taken.) 7 THE COURT: All right. Let's go back on the 8 record in the matter of the United States versus Mooney. 9 You were about to call another witness. 10 MS. TRAVIS: Yes, Your Honor. The United States 11 calls Terri Holland. 12 THE COURT: Miss Holland, if you will come up and 13 be sworn, please. 14 TERRI HOLLAND 15 was duly sworn, was examined and 16 testified as follows: 17 THE COURT: Okay. Please take the witness stand. 18 Pull that microphone towards you. Make sure everyone in 19 the courtroom can hear you and give your name for the 20 record and spell your last name. 21 THE WITNESS: My name is Terri Holland, 22 H-O-L-L-A-N-D. 23 THE COURT: Proceed. 24 25
58 1 DIRECT EXAMINATION 2 BY MS. TRAVIS: 3 Q. Ms. Holland, do you know James and Linda Mooney, 4 yes? 5 A. I do. 6 Q. How do you know him? 7 A. I was hired by the Mooneys through Oklevueha 8 EarthWalks to provide some financial advisory services 9 and help with setting up their computer systems and 10 office. 11 Q. And when were you hired? 12 A. To the best of my recollection it was sometime 13 in -- it was sometime in February. 14 Q. Of what year? 15 A. Of 1999. 16 Q. And were you working at the Oklevueha Church in 17 April of 2000? 18 A. Yes, I was. 19 Q. Do you recall a conversation that you had with 20 James Mooney at that time in which Mr. Mooney expressed 21 concern with regards to the government? 22 A. Yes, I do. 23 Q. Could you relate to the Court what Mr. Mooney 24 told you? 25 A. Mr. Mooney was expounding on the idea that his
59 1 work with prison inmates would completely reduce prison 2 recidivism and that the government was -- was opposed to 3 his work in that area because it provided a substantial 4 amount of income for state and federal governments to 5 incarcerate, particularly drug addicts, and that his 6 work that he was -- the way that his work would 7 eliminate the prison system and therefore he was a 8 target of the government, and that it was important for 9 people to, quote, focus up and to live their lives in a 10 way to defend and support Mr. Mooney's church against 11 attacks that would be coming at a future date from the 12 government, and it was one of the reasons he wanted a 13 location that had enough property to provide a sort of 14 compound environment. 15 Q. During this conversation did he indicate that it 16 was his belief that Oklevueha and its members were going 17 to have to protect themselves from the government? 18 A. Yes, he did. 19 Q. Were you concerned about these statements? 20 A. Yes, I -- in a somewhat joking or sort of 21 facetious manner, I said to Mr. Mooney, so is this going 22 to be a little bit like Jim Jones and Jonestown and are 23 we all going to have to be drinking Kool-Aid one day. 24 Q. And what was his response to that? 25 A. His response was that no, we were not going to
60 1 kill ourselves, but that we were going to have to defend 2 yourselves against the government, because Mr. Mooney in 3 particular but the church was going to be attacked and 4 its members were going to be attacked. 5 Q. To your knowledge, Ms. Holland, were there guns 6 at that church? 7 A. Yes. 8 Q. Did you see them? 9 A. Yes. 10 Q. Did you hear Mr. Mooney speaking to others about 11 acquiring more guns? 12 A. Yes, I did. I don't know the names of the people 13 and I was not involved in the conversations but, 14 peripherally, while being in the front office, I did 15 hear Mr. Mooney talk to two gentlemen about acquiring 16 guns and needing to have guns and that it was our right 17 as citizens to -- to be armed. 18 Q. Now you indicated that he had talked about 19 acquiring a large amount of property and you referred to 20 a compound. Did he ever make statements about turning 21 this church area, which I also believe was his 22 residence, into a compound? 23 A. Yes -- well, Mr. Mooney vacillated between 24 wanting to turn the property into a -- I don't know how 25 to explain it. We always referred to it as a theme
61 1 park. But it was various different -- horse riding and 2 different things, but it was necessary to have berms and 3 things that were built on the property that could offer 4 protection if Mr. Mooney was attacked. Mr. Mooney told 5 me on a number of occasions that he knew that there were 6 people out to kill him. 7 Q. And did that include his protection from the 8 government? 9 A. Yes. 10 Q. Now, Ms. Holland, did you cooperate with the Utah 11 County officials during their investigation in 2000? 12 A. Yes. 13 Q. Did you, in fact, testify at a preliminary 14 hearing in 2001 in Utah County against James and Linda 15 Mooney? 16 A. Yes. 17 Q. And in connection with your testimony in that 18 preliminary hearing, did you have contact with James or 19 Linda Mooney regarding your cooperation? 20 A. Yes, I did. 21 Q. What contact did you have? 22 A. Mr. Mooney, through a third party, wished to have 23 a meeting with me to discuss marketing of a film that I 24 had made about Native American ceremonies. I went with 25 a friend of mine and we met Mr. Mooney at Thanksgiving
62 1 Point. 2 Q. And did you speak with Mr. Mooney there? 3 A. Yes, I did. 4 Q. And what did he say to you? 5 A. Initially, Mr. Mooney discussed various ideas of 6 having a theatrical release of my film in Utah County 7 and different ideas he had about raising money to 8 support the film. Then it turned to he accused me of 9 having lied in my testimony to Utah County and told me 10 that even though he didn't hate me, that Linda Mooney 11 did hate me, and he could understand why and therefore 12 there were going to be serious repercussions, but that 13 he forgave me because he realized that I had lied 14 because I had been manipulated and coerced by the Utah 15 County prosecutor's office. 16 Q. Did he have a solution for how you could get back 17 in his good graces? 18 A. Yes. He was willing to not sue me if I was 19 willing to make a five-minute video that said that I 20 would -- that I had been coerced and manipulated by the 21 prosecutor's office and had indeed lied in my testimony 22 and then he assured me that if I did that and tacked it 23 on to the front of the film, that he would show it in 24 theatrical releases and he would, quote, get me more 25 money for the film than I knew what to do with.
63 1 Q. Now did you consider this statement a threat to 2 you? 3 A. Yes, I considered it a threat and I considered it 4 an attempted bribe to change my testimony and -- 5 Q. Did you discuss that with anyone? 6 A. I did. I was concerned and I contacted Paul 7 Larsen and asked -- 8 Q. Who is Paul Larsen? 9 A. Paul Larsen is the director of the film and also 10 has been a good friend of James and Linda Mooney, and 11 asked him to meet with James and to inform him that in 12 my opinion, how I took it, that it was inappropriate for 13 him to threaten me with financial ruin and it was also 14 inappropriate to try to offer me money to change my 15 testimony. Mr. Larsen did meet with Mr. Mooney and told 16 him all of those things and asked Mr. Mooney not to 17 contact me. 18 Q. Now following that meeting that Mr. Larsen had 19 with Mr. Mooney, did Mr. Mooney contact you? 20 A. Yes, he did. 21 Q. And how did he do that? 22 A. He called me on my cell phone and left a cell 23 phone message, and in that message he said that he had 24 spoken with Mr. Larsen and understood that he and I had 25 had a misunderstanding, but that he forgave me for my
64 1 misunderstanding and that really what he needed though 2 was to get that video made in 72 hours, if possible, and 3 that he would get me the money I needed for the film if 4 I would make that video, and that he had discussed with 5 Mr. Larsen whether he would cooperate and assured me 6 that Mr. Larsen had agreed, in fact, to film me making a 7 video saying that I had falsified my testimony under 8 coercion. 9 Q. Did this concern you? 10 A. Yes. 11 Q. What did you do? 12 A. I actually called Mr. Mooney's attorney. 13 Q. And who was his attorney at that time? 14 A. Kathryn Collard. 15 Q. Did you speak with her? 16 A. Yes, I did, face-to-face. 17 Q. And when was -- what was your conversation? 18 A. I told her that it was not my intention to get 19 Mr. Mooney in any further trouble, but that I wanted all 20 communication to cease, that I didn't want him to make 21 any more phone calls, and that I was unwilling to meet 22 with him, and I related to her the entire conversation 23 and that also she could speak with Mr. Larsen. 24 Q. Now, Ms. Holland, do you recall when this 25 conversation at Thanksgiving Point and these events
65 1 occurred? 2 A. I believe it was in the summer. I know we sat 3 outside and it was quite warm. So I'm -- I'm thinking 4 it was the summer after they were arrested. So the 5 summer, I guess of 2003, I believe. 6 Q. Two thousand -- well, they were arrested -- 7 A. Two thousand -- I'm sorry. To be honest, I 8 can't -- it was after they were arrested, but before 9 the -- and after the preliminary hearing. 10 Q. After the preliminary which was held in the 11 summer of 2001? 12 A. So it must have been the summer of 2002. 13 Q. All right. Now let me turn your attention to May 14 31st of this year. 15 A. Yes. 16 Q. Did you received an e-mail on that day? 17 A. Yes, I did. 18 Q. And what was the content of that e-mail and who 19 was it from? 20 A. It was from a woman named Vanessa Johannson who 21 is a friend of mine and had received this e-mail from 22 Mr. Mooney and she had forwarded it -- a copy of it to 23 me. 24 Q. And what was said in the e-mail from Mr. Mooney? 25 A. Mister -- well, Mr. Mooney had, in a letter to
66 1 brothers and sisters, had chastised me for refusing to 2 allow him to have a public performance of my film at the 3 Provo library without prior written permission. When I 4 had discovered that he intended to show the film, I 5 contacted the library and also the prosecutor's office. 6 At which time they informed me that he did not have the 7 rights to show the film. So I had sent a letter to the 8 library requesting that they refrain from having 9 Mr. Mooney show the film without prior written 10 permission. He sent a letter quoting some of the things 11 in the letter, but most concerning to me is I received 12 several communications from people who had received -- 13 Q. Well, let me stop you. 14 A. Yes. Okay. 15 Q. With regards to the e-mail that was forwarded to 16 you, was it clear in the e-mail that Mr. Mooney was 17 unhappy with you? 18 A. Yes, absolutely. 19 Q. And is it clear in the e-mail that he is advising 20 people on an e-mail list of his unhappiness with you? 21 A. Yes. 22 Q. And in that e-mail did James Mooney provide to 23 this list of people on an e-mail list your address, your 24 home address? 25 A. Yes, he did.
67 1 Q. Did he provide phone numbers? 2 A. Yes, he did. 3 Q. Ms. Holland, were you frightened by that e-mail? 4 A. Yes, I was. I know some of the people that 5 Mr. Mooney associates with and I was -- even though I 6 had been contacted by several people who had received 7 the e-mail, all of those people were frightened for me, 8 and I was afraid that he would get somebody agitated 9 enough to harm me or my property. So I took a copy of 10 the e-mail to the only place I knew to go, which was the 11 IRS, and I also asked for police protection, for the 12 police to patrol my home. 13 Q. And are they, in fact, patrolling your home? 14 A. Yes, they are. 15 THE COURT: When did this occur? 16 THE WITNESS: May 31st. 17 THE COURT: Of this year? 18 THE WITNESS: Yes, sir. 19 THE COURT: Okay. 20 Q. (BY MS. TRAVIS) You indicated that your phone 21 number was in that e-mail. Did you actually receive 22 telephone calls? 23 A. Yes, I have. 24 Q. And can you give some idea of the substance of 25 those phone calls?
68 1 A. Contrary to what I had suspected might happen, 2 most of the phone calls have been to warn me rather than 3 to harass me. I have not received any phone calls from 4 anyone who are upset with me. But then, again, I didn't 5 expect they would approach me over the phone. But I 6 have received some phone calls from people who are 7 saying that they feel like Mr. Mooney has crossed the 8 line and has put me in some danger. 9 Q. All right. Have you been told by those people -- 10 people in phone calls that they would be afraid if they 11 were in your shoes? 12 A. Yes, I was. 13 MS. TRAVIS: Your Honor, nothing further at this 14 time. 15 THE COURT: Cross-examination? 16 CROSS-EXAMINATION 17 BY MS. CORPORON: 18 Q. Ma'am, do you have a copy of that e-mail? 19 A. Yes, ma'am. 20 MS. CORPORON: May I approach, Your Honor? 21 THE COURT: You may. 22 MS. CORPORON: May I just look at this, Your 23 Honor? 24 THE COURT: Go ahead. 25 MS. CORPORON: Your Honor, can we make a
69 1 photocopy of this? I would like to introduce this. 2 THE COURT: Would you mark it as an exhibit? 3 MS. CORPORON: I think we need to make some 4 copies of it. 5 THE COURT: She's going to do that as well. 6 MS. CORPORON: I could begin examination on 7 another area. 8 THE COURT: Go ahead. Go to another area and 9 we'll come back to this. 10 Q. (BY MS. CORPORON) Now you indicated that in 11 approximately 1997 you started working for Mr. Mooney, 12 James Mooney, correct? 13 A. I believe it was -- I don't think it was as early 14 as 1997, but I'm not sure. 15 Q. In the 1990's you started working for him? 16 A. Yes, ma'am. 17 Q. And then in April of 2000 is when you recall this 18 conversation with Mr. Mooney about the fact that he was 19 going to have to get ready to defend himself against the 20 government because of his religious practices? 21 A. I'd heard him say that on a number of occasions, 22 but I remember that specific date. 23 Q. Okay, and then it was in November of 2000 that 24 the Mooneys were both arrested, Mr. and Mrs. Mooney, 25 correct?
70 1 A. Correct. 2 Q. And a few months after that there was a 3 preliminary hearing conducted in Provo on the State 4 charges, right? 5 A. Correct. 6 Q. The preliminary hearing, in fact, occurred two, 7 three, four months after their arrest, correct? 8 A. Correct. 9 Q. And so if they were arrested in November 2000, 10 the preliminary hearing was in early 2001? 11 A. Okay. 12 Q. And the summer that you had this conversation 13 with Mr. Mooney about this film that you had produced 14 and about your recent testimony in the preliminary 15 hearing was in the summer of 2001, correct? 16 A. I cannot say for a certainty that that was the 17 date. I know the place and the substance of the 18 conversation, but I cannot absolutely confirm the time 19 frame. 20 Q. It wasn't over a year after your preliminary 21 hearing testimony that you had the conversation, 22 correct? 23 A. I believe it may have been near that amount of 24 time. 25 Q. Over a year?
71 1 A. I believe so. Things had died down quite a bit 2 before Mr. Mooney contacted me. 3 Q. And one of Mr. Mooney's concerns was that he said 4 that some of the statements you made in your testimony 5 had been false statements, correct? 6 A. Yes, ma'am. 7 Q. And, in fact, Mr. Mooney has filed a lawsuit 8 against you in this court and against others now 9 alleging some civil misconduct on your part with regard 10 to Mr. Mooney, correct? 11 A. I have had rumors -- heard rumors of a lawsuit 12 but I have not been served. 13 Q. Okay. So you're aware that you're party to that 14 lawsuit, but you've not officially been served? 15 A. Yes, ma'am. 16 Q. And you've heard that Robert Riding, David 17 Raymond, Kate Bryson, Terri -- you, Terri Holland, Jim 18 Pritchard, and Jeff Merkey have all been parties to 19 that -- defendants in that lawsuit, correct? 20 A. Yes. 21 Q. Now let me return to the document you handed me 22 just a moment ago. 23 MS. CORPORON: And actually, Your Honor, the 24 document that I just wanted to mark is the e-mail 25 itself. If I could move the exhibit sticker just over
72 1 to the e-mail and take that off. Is that acceptable to 2 the Court? 3 THE COURT: If you can do it. If not, she'll 4 just do another -- redo it. 5 MS. CORPORON: Well, it's on there. Now I've 6 really done it. 7 THE COURT: Just redo it, because that won't 8 stick. 9 Q. (BY MS. CORPORON) Now I'm going to show you 10 what's been marked for identification as Defendant's 11 Exhibit 1. Let me ask you if that's the e-mail that you 12 contended was a threatening e-mail by Mr. Mooney? 13 A. Yes. 14 MS. CORPORON: Move admission, Your Honor. 15 THE COURT: Any objections? 16 MS. TRAVIS: No, Your Honor. 17 THE COURT: It's received. 18 (Defendant's Exhibit No. 1 was received into evidence.) 19 Q. (BY MS. CORPORON) Now nowhere in this document 20 is Mrs. Mooney, Linda Mooney, mentioned, right? 21 A. No, she's not. 22 Q. Now the meeting that you had at Thanksgiving 23 Point with Mr. Mooney was not attended by Linda Mooney, 24 was it? 25 A. No, it was not.
73 1 Q. The conversations that you had over the telephone 2 by anyone contacting you in response to the e-mail are 3 expressing sympathy to you that your name is listed in 4 the e-mail, sympathy to you over the situation, and 5 warning you that you need to be careful? 6 A. Yes, ma'am. 7 Q. None of the people who called you in response to 8 that e-mail have been either James Mooney or Linda 9 Mooney, right? 10 A. No. 11 MS. CORPORON: Nothing further. 12 THE COURT: Cross-examination? 13 CROSS-EXAMINATION 14 BY MS. ANGELOS: 15 Q. You first indicated that in April of 2000 you 16 were having a conversation with Mr. Mooney where he 17 indicated that he was going to have to protect himself 18 from the government. Do you remember that discussion, 19 that conversation? 20 A. Yes. 21 Q. Did he suggest to you that he was afraid of legal 22 actions, that the attacks may be that the government may 23 sue or -- 24 A. They were -- they were both. He was actually at 25 the time involved in a lawsuit with the State already.
74 1 But Mr. Mooney had at one other time fled the state and 2 gone and stayed with someone and when I spoke with him 3 on the phone during this same period of time, he said 4 that he had learned that -- that his life was in 5 jeopardy and in danger. But in that conversation in 6 April, it was my impression that he felt both that there 7 would be some sort of criminal or civil action taken 8 against him, but also that there might be people who 9 were still so threatened by Mr. Mooney's work that they 10 might try to kill him or harm members of the church. 11 Q. And when you say criminal action, was there 12 discussion that he would have to hire attorneys and such 13 to defend himself? 14 A. Yes. He had an attorney at the time. 15 Q. He did have an attorney, and he was going through 16 his attorney with regards to all of these proceedings? 17 A. Yes, he was, and he was also hiring other people. 18 Q. Now you indicated that in -- I think it was the 19 summer of 2001 that you -- after a preliminary hearing 20 you met with him and he indicated that he accused -- you 21 testified that he accused you of lying; is that correct? 22 A. Yes. 23 Q. But did he also tell you that he didn't hate you? 24 A. What he said was I don't hate you. My wife Linda 25 hates you more than any other person on the face of the
75 1 earth and I can understand why. 2 Q. But Mr. Mooney, himself, said he didn't hate you? 3 A. Correct. 4 Q. Mr. Mooney, himself, said he forgave you? 5 A. He said he would forgive me if I would make a 6 videotape changing my testimony. 7 Q. And that you would get back in his good graces, 8 correct? 9 A. He never used the words get back in good graces. 10 He said that he would forgive me and not pursue a suit 11 against me and would get me money if I admitted the 12 truth. 13 Q. So his repercussions against you was that he 14 would sue you or bring financial ruin to you, correct? 15 A. Yes. 16 Q. There was no threat of life upon you? 17 A. No. 18 Q. And, in fact, after this occurred, Mr. Mooney met 19 with Paul Larsen and then actually contacted you and 20 indicated that there was a misunderstanding; is that 21 correct? 22 A. Yes. 23 Q. And apologized at that time also? 24 A. No. He wanted to accept my apology if I had one. 25 He forgave me for the misunderstanding.
76 1 Q. Now with regards to this e-mail to someone else, 2 Mr. Mooney's never contacted you directly, is that 3 correct, since the time of this e-mail? 4 A. No. 5 Q. Okay, and you haven't received any phone calls 6 from Mr. Mooney since receiving this e-mail, correct? 7 A. No. 8 Q. And Mr. Mooney has never appeared at your house, 9 never appeared at your place of work, correct? 10 A. No, no. 11 Q. After this e-mail was received, did you at some 12 point send a letter to Mr. Mooney suggesting that it was 13 okay at some point to show the film? 14 A. Yes, I did. 15 Q. So after all this is occurring and you're afraid 16 for your life, you sent a letter to Mr. Mooney and said 17 go ahead and -- 18 A. I met with the leaders or the directors of the 19 library and also the County prosecutors and realized 20 that my making a stand on a -- on the copyright issue 21 might further inflame Mr. Mooney and cause things to get 22 worse and the police have to show up at the library. 23 After consulting with them and my attorney, I made the 24 decision that it would de-escalate everything and calm 25 Mr. Mooney if I allowed him to have a public performance
77 1 of my film so long as he did not charge. 2 MS. ANGELOS: No further questions, Your Honor. 3 MS. TRAVIS: I have one quick follow-up, Your 4 Honor. 5 THE COURT: Please. 6 REDIRECT EXAMINATION 7 BY MS. TRAVIS: 8 Q. One thing, you indicated that when you got that 9 e-mail you contacted the IRS? 10 A. Yes. 11 Q. You said that's the only place I knew to go? 12 A. Yes. 13 Q. Was that because, Ms. Holland, you had, in fact, 14 been interviewed by an IRS agent in connection with this 15 investigation? 16 A. Yes, ma'am. 17 Q. Also just with regards to the misunderstanding 18 and the phone call which you received in which 19 Mr. Mooney left you a message on your cell phone, in 20 that message did he again tell you that he wanted you to 21 make that videotape renouncing your testimony? 22 A. Yes. He requested that I make the videotape 23 within 72 hours. 24 MS. TRAVIS: Nothing further. 25
78 1 RECROSS-EXAMINATION 2 BY MS. CORPORON: 3 Q. Have you had any contact with Linda Mooney at all 4 since her arrest in November of 2000? 5 A. No, I have not. 6 MS. CORPORON: Nothing further. 7 RECROSS-EXAMINATION 8 BY MS. ANGELOS: 9 Q. Did you make the videotape within 72 hours? 10 A. No. I never made that videotape. 11 Q. Did you have any repercussions with regards to 12 Mr. Mooney contacting you, did he threaten you? 13 A. I have never had a direct threat from Mr. Mooney 14 just other people telling me things that he's 15 threatening. 16 Q. Okay, and so after these 72 hours had passed, 17 you've never had any direct threat from Mr. Mooney? 18 A. No, I have not. 19 THE COURT: May this witness be excused? 20 MS. TRAVIS: Yes, Your Honor. 21 THE COURT: You may step down. 22 MS. TRAVIS: The United States calls Rob Riding. 23 THE COURT: If you will come up and be sworn, 24 please. 25
79 1 ROB RIDING 2 was duly sworn, was examined and 3 testified as follows: 4 THE COURT: Take the witness stand, please, and 5 pull that microphone towards you and speak into the 6 microphone. Give us your name for the record and spell 7 your last name. 8 THE WITNESS: Rob Riding, R-I-D-I-N-G. 9 THE COURT: Thank you. Proceed. 10 DIRECT EXAMINATION 11 BY MS. TRAVIS: 12 Q. Mr. Riding, where are you employed? 13 A. I am employed with the Utah County Sheriff's 14 Department. 15 Q. And in what capacity? 16 A. I work for the major crimes task force as a 17 detective. 18 Q. How long have you been with the task force? 19 A. Five and a half years. 20 Q. And is the major emphasis of the Utah County 21 major crimes task force narcotics and addiction? 22 A. Yes. 23 Q. Detective, were you involved with the 24 investigation in 2000 and 2001 into the Oklevueha 25 EarthWalks Native American Church?
80 1 A. Yes. 2 Q. And are you no longer involved in that 3 investigation other than as a witness in this federal 4 prosecution? 5 A. No longer involved. 6 Q. Turning your attention to an incident this year 7 at the Crest gas station in Payson, Utah involving James 8 Mooney, do you recall such an incident? 9 A. Yes. 10 Q. When did that occur? 11 A. Approximately two months ago. 12 Q. Can you describe for the Court what happened. 13 A. In my personal vehicle, just went to the store, 14 gas station. I went in, bought an item. As I came out 15 I observed and seen James Mooney out at the gas pumps. 16 I just went to my vehicle, got in my vehicle and was 17 driving off. As I looked up, he was at my window and 18 approached me. He -- 19 Q. Let me ask you this: When you left the gas 20 station and went right to your vehicle, were you 21 attempting to avoid Mr. Mooney? 22 A. I was. 23 Q. All right, and he appeared at your car? 24 A. Yeah. I looked up and he was right at my window. 25 He looked at me. He identified me as Rod Riding or
81 1 something, the one who raided his place. 2 Q. What was his demeanor? 3 A. He was loud, pointing at me, and shaking his 4 finger. 5 Q. Would it be fair to say that he was angry with 6 you? 7 A. Yes. 8 Q. And what did he say to you? 9 A. He continued to repeat saying you knew that was a 10 church that you raided. 11 Q. And did he say that over and over again? 12 A. He said it over and over. 13 Q. What was your response? 14 A. I told him we were decent with him. 15 Q. And at some point did the conversation end? 16 A. That's about where it ended, and he just said you 17 knew, and then I drove off and he walked off. 18 MS. TRAVIS: Nothing further, Your Honor. 19 THE COURT: Cross-examination? 20 MS. CORPORON: I have nothing, Your Honor. 21 CROSS-EXAMINATION 22 BY MS. ANGELOS: 23 Q. This occurrence that happened at the gas station 24 about two months ago, it was basically a chance 25 encounter?
82 1 A. Yes. 2 Q. He was there, you were there? 3 A. Yes. 4 Q. You were getting gas, he was at the convenience 5 store purchasing stuff? 6 A. The other way around. 7 Q. Okay, and you began to drive off and he appears 8 at the window and he's angry with you, correct? 9 A. Yes. 10 Q. He points his finger at you? 11 A. Yes. 12 Q. Does he hit you? 13 A. No. 14 Q. He doesn't do anything else? 15 A. No. 16 Q. He doesn't threaten your life? 17 A. No. 18 Q. He basically says, you know what you did to the 19 church was wrong. 20 A. That I knew it was a church. 21 Q. And that you knew it was a church? 22 A. Yes. 23 Q. And then after this conversation he walks away 24 and you drive away? 25 A. Yes.
83 1 Q. From that point on have you ever had any another 2 conversation where he has threatened your life? 3 A. No. 4 Q. Has he come to your house? 5 A. No. 6 Q. Has he come to your place of work? 7 A. Well, I work for the sheriff's department. 8 Q. Besides coming in for some type of -- 9 A. Not for me personally, no. 10 MS. ANGELOS: No further questions, Your Honor. 11 THE COURT: Any redirect? 12 MS. TRAVIS: Just one quick question. 13 REDIRECT EXAMINATION 14 BY MS. TRAVIS: 15 Q. Detective, when was a search warrant executed on 16 the Mooneys' residence in connection with the Utah 17 County charges? 18 A. In October of 2000. 19 Q. In October of 2000 and in -- just several months 20 ago in 2005, James Mooney was yelling at you at a gas 21 station? 22 A. Yes. 23 MS. TRAVIS: Nothing further. 24 25
84 1 RECROSS-EXAMINATION 2 BY MS. ANGELOS: 3 Q. Is it true that the Supreme Court came down with 4 a decision in 2004? 5 A. I believe so. 6 Q. And between the time that the decision came down 7 in 2004 and when you saw him at the convenience store in 8 2005, did you have any interaction with him? 9 A. Not that I recall. 10 Q. And so that was the first time that you had seen 11 him since the Utah Supreme Court came down? 12 A. As far as I -- 13 Q. That the decision came down? 14 A. As far as I can recall. 15 Q. And so that's the first time that he's actually 16 had a chance to talk to you, correct? 17 A. I don't know it's first chance or not, but that's 18 the first time we've talked. 19 MS. ANGELOS: No further questions. 20 THE COURT: Anything further? 21 MS. TRAVIS: No, Your Honor. 22 THE COURT: You may step down. You're excused. 23 Any other witnesses? 24 MS. TRAVIS: No other witnesses, Your Honor. 25 THE COURT: Anything from the defendants?
85 1 MS. CORPORON: Nothing in way of testimony, Your 2 Honor. There is obviously some argument. 3 THE COURT: Okay, and I want to hear from the 4 government first regarding what they have presented here 5 today and then I'll give you an opportunity to respond. 6 MS. TRAVIS: Your Honor, the government would 7 submit first of all in this case we do have a rebuttable 8 presumption. But in connection with that presumption, 9 we believe there are no set of conditions that could be 10 set by this Court to assure that the defendants would 11 not be a danger to this community, or a flight risk, or 12 that they will not -- 13 THE COURT: Well, hang on for a minute. What 14 have you established regarding flight risk? 15 MS. TRAVIS: Well, Your Honor -- 16 THE COURT: I mean there are two prongs to it and 17 I need to address each one individually. 18 MS. TRAVIS: Correct. 19 THE COURT: What specifically are you relying on 20 in terms of flight risk? 21 MS. TRAVIS: Your Honor, first of all we're 22 relying on the fact that the defendants are now facing 23 federal charges in this case. This is a more serious 24 forum, no parole in the federal system and the evidence 25 suggests, particularly in light of the Web site in which
86 1 the defendants clearly make a change with regards to 2 having a roadman distribute the peyote, that it's clear 3 that they understand there's now a difference here, that 4 we're no longer in the state system, we are now in the 5 federal system. 6 THE COURT: But how does that address the issue 7 of flight? That's my question, because, I mean, in 8 addressing whether they are a flight risk, I have to 9 look at innumerable things including how long they have 10 been in the community, whether there's any evidence that 11 they plan to escape, whether there are any plans to 12 leave the jurisdiction, things of that sort. What are 13 you relying on for that? 14 MS. TRAVIS: Your Honor, I think, in one way, we 15 have presented evidence to suggest that not only do the 16 Mooneys believe that their conduct is above the law, but 17 they have followers who believe that as well. 18 THE COURT: That, to me, goes to the issue of 19 danger to the community, continuing to engage in that 20 conduct. 21 MS. TRAVIS: Correct. But I would also point out 22 that the government has, we believe, a fair inference 23 that this population, these individuals who support the 24 Mooneys, could well be called upon to shelter them from 25 what these people perceive as an abusive prosecution by
87 1 the federal government. 2 THE COURT: But I haven't heard anything to that 3 effect. 4 MS. TRAVIS: Well, we do have -- we presented 5 evidence with regards to the community at Gunnison, 6 dangerous individuals involved. We've presented 7 evidence that many of the people who have been involved 8 with the Mooneys are unstable emotionally, who have been 9 involved in these peyote ceremonies. Obviously -- we 10 also have Terri Holland's comment in her testimony here 11 to the Court that at one time Mr. Mooney did, in fact, 12 leave. He did return, but he did, in fact, leave. 13 THE COURT: Okay. 14 MS. TRAVIS: I don't want to suggest to the Court 15 that the government is relying on that evidence to 16 request the detention, but we do want to make every 17 argument that we can. 18 THE COURT: I understand. 19 MS. TRAVIS: Your Honor, we believe that the 20 defendants are a danger to the community. Our first 21 argument is that they are, in fact, peyote distributors 22 and the evidence here today suggests that they are 23 unlikely to stop their activities. They were arrested 24 by the State in November of 2000. They continued to try 25 to obtain peyote after that arrest. The evidence
88 1 establishes that, that James Mooney conducted peyote 2 ceremonies in New York City and likely did other 3 ceremonies. The Mooneys were notified in August of 2004 4 that they were under investigation by the federal 5 government. They were advised that they could not 6 possess or distribute peyote and yet they continued to 7 do so as the Oklevueha Church indicated on the Web site, 8 as well as the testimony here today of Jeff Merkey. The 9 defendants were arrested and prosecuted by Utah County 10 and that did not stop the peyote distribution business. 11 The defendants were placed on notice by the federal 12 government and that did not stop their peyote 13 distribution business. They have a history of a blatant 14 disregard for the law and it establishes that the 15 Mooneys will not be deterred from their illegal drug 16 trafficking by this Court or by any set of conditions 17 that this Court may have imposed. 18 We've also introduced evidence that the 19 defendants created a compound of sorts at their church 20 or residence. James Mooney has made it clear, from the 21 testimony of Terri Holland, he's antigovernment. He's 22 talked about creating an army in that church compound. 23 It's the government's position, Your Honor, that the 24 defendants are drug traffickers who will continue to 25 traffic in narcotics, and the evidence is also apparent
89 1 that not only do they have a history of blatant 2 disregard for the law, but they also have a history of 3 threatening anyone who cooperates with the government. 4 It's very clear from the testimony here today that we 5 have established that the Mooneys have shown that they 6 will obstruct justice. That's how they operate. 7 You've heard the testimony of Jim Pritchard who 8 was told James Mooney said, get Pritchard and take him 9 out. He was threatened with his life. We have the 10 testimony of Terri Holland, here on the stand, who was 11 threatened. We have the fact that Mr. Mooney was 12 willing to confront a law enforcement officer one-on-one 13 at a gas station just several months ago. What would he 14 be willing to do with someone who doesn't have that kind 15 of protection? 16 We also think that the evidence is very clear, 17 Your Honor, Mr. Mooney's conduct is unstable and we 18 think that that is clearly evidenced by the comment -- 19 the statements and the testimony by Terri Holland, 20 again, with regards to his compound and army of this 21 compound. We also have a behavior towards Detective 22 Riding. It's a clear indicator. This prosecution that 23 Detective Riding was involved in was nearly five years 24 before and yet Mr. Mooney has so much anger he's 25 approaching a detective with the Utah County narcotics
90 1 strike force and creating some kind of hostile 2 environment. 3 THE COURT: Would you concede, counsel, that that 4 occurred after the Utah Supreme Court had come down with 5 an opinion that kind of validated the conduct of the 6 Mooneys within the State system? 7 MS. TRAVIS: Well, I would concede that it did 8 happen afterwards. But I would point out to the Court 9 that the Utah Supreme Court ruling was last summer. 10 THE COURT: I understand. 11 MS. TRAVIS: Last July. 12 THE COURT: Did this occur after that opinion 13 came out? 14 MS. TRAVIS: It did occur after, and I would 15 also -- I would suggest to the Court that that was 16 inappropriate conduct with Detective Riding, that 17 perhaps what might have been more appropriate, 18 especially considering the fact that Mr. Mooney won that 19 case, rather than anger and pointing a finger and 20 obviously very upset with Detective Riding, the fact is 21 Mr. Mooney could have merely said, hey, I beat you, but 22 he didn't. He displayed anger. 23 THE COURT: I understand. 24 MS. TRAVIS: Your Honor, the Mooneys' pattern is 25 to disregard the law and the Mooneys' pattern is to
91 1 threaten anyone who cooperates with law enforcement in 2 their prosecution. We consider them a danger to the 3 community. We do consider them a flight risk 4 considering the fact that we are now in the federal 5 court and we do believe that if the Court releases them, 6 they will continue to obstruct justice. 7 THE COURT: Thank you. 8 Ms. Corporon? 9 MS. CORPORON: Your Honor, first of all, let me 10 ask you to consider these two individuals quite 11 differently. Mister -- 12 THE COURT: They are individuals. I listened to 13 the evidence as it applies to each one, individually. 14 So please address your client's concerns. 15 MS. CORPORON: I will do that, Your Honor, 16 because counsel has just talked about the Mooneys, the 17 Mooneys, the Mooney's -- 18 THE COURT: I understand. 19 MS. CORPORON: -- as though they were joined at 20 the hip, and the evidence is very much to the contrary, 21 that there are some of these events that involve one 22 person and not the other, and Mr. Mooney is going to 23 have to make his own arguments. But I urge the Court to 24 consider them differently. 25 All of the evidence in this case, in fact all of
92 1 the charges in the indictment have to do with conduct 2 occurring before November of 2000 for which the two 3 defendants here were arrested in Utah County and charged 4 and went through three or four years in the Utah State 5 Court system. Since that time the evidence of any 6 conduct on the part of Linda Mooney, in terms of any 7 kind of involvement with peyote, with cocaine, with any 8 kind of criminal conduct, with threatening anybody, with 9 talking to anybody, with discussing this case with 10 anybody, is nonexistent. There is some conversation 11 about Mr. Mooney appearing in a news video doing a 12 ceremony for New York City after September 11th. We're 13 not shown the video. I suspect that video talks about a 14 medicine ceremony, and it's not clear yet from the 15 evidence exactly what that means. But that's still back 16 four years ago. This -- and Mrs. Mooney was not 17 involved in that and specifically didn't appear on the 18 video. 19 We have a suggestion that -- there was some 20 suggestion -- we had a suggestion that there was some 21 statement, and this is hearsay -- and I would remind the 22 Court that the criteria for relying on hearsay in this 23 proceeding is that it be reliable hearsay. But we have 24 a statement from a witness here that a Mr. Bennion 25 received directions that Mr. Mooney was to do
93 1 something -- somebody at the Utah State Prison was to do 2 something for Mr. Mooney back -- and this -- the 3 testimony at this hearing today was that this occurred 4 two to three months after arrest of the Mooneys which 5 would have put this January, February of 2001, years 6 ago. There's no indication that any threats have been 7 carried out. There's no reliable hearsay that any 8 threat was actually made and, in fact, the most critical 9 thing for Mrs. Mooney is there's no indication that she 10 was involved with that at all or even had any knowledge 11 of it. 12 There -- the most recent event that is described 13 by any witness has to do with this Salvador Johnson, who 14 by the way had some involvement with Mr. Mooney in 2001 15 but not with Linda Mooney, that somebody contacted a 16 Gary Tom, who contacted Salvador Johnson who contacted 17 Jeff Merkey, who tells us in court today that this 18 person who contacted Gary Tom who was contacting 19 Salvador Johnson was looking for peyote for the Mooneys, 20 quote, unquote. That's, as I calculate it, five degrees 21 of hearsay and we don't know what time frame Salvador 22 Johnson's talking about from the evidence that we've 23 heard. It's just as likely it's the 2001 incident and 24 that it doesn't involve Mrs. Mooney at all as anything. 25 The Court --
94 1 THE COURT: To be fair about the testimony, 2 however, counsel, Mr. Merkey did testify that he 3 considered both of them -- the request to come from both 4 of them, or am I mistaken in my characterization? 5 MS. CORPORON: Well, he's characterizing requests 6 coming from both of them. But that's, again, the fifth 7 degree of hearsay and utterly unreliable. 8 THE COURT: Okay. 9 MS. CORPORON: Even as hearsay is allowed in this 10 type of proceeding, it's utterly unreliable and the time 11 frame is utterly unreliable. There are two criteria as 12 this Court is well aware that we have to consider, 13 flight risk and dangerousness to the community. 14 In terms of flight risk, I would submit there is 15 no one less a flight risk than Mrs. Mooney based upon 16 the evidence before this court about Linda Mooney. 17 There was testimony that Mr. Mooney was saying in April 18 of 2000 that the government was coming for him and, sure 19 enough, they did, and they prosecuted him and my client 20 was still there to be arrested at that same house in 21 November of 2000. They were arrested in November of 22 2000. She was released on bond. We have no evidence 23 that she was prosecuted for new violations and that she 24 has committed any violations of any conditions of the 25 court from April of two -- or, excuse me, November of
95 1 2000 when she's arrested and released on bond until 2 August of 2004 when we have a Supreme Court decision, 3 favorable to her case, at which point the prosecution 4 terminated. So we have no indication that she ever 5 failed to appear or did anything wrong. She's still 6 standing here in state of Utah. 7 THE COURT: Do you know what the conditions of 8 release were within the state system? 9 MS. CORPORON: I have no idea what those 10 conditions were. 11 THE COURT: Okay. 12 MS. CORPORON: But I also suspect that a State 13 Court judge won't have taken very kindly to news of 14 peyote use. I mean whether somebody, you know, went to 15 Las Vegas or not would be one thing. But I can't 16 imagine a single judge in the state system who would 17 take kindly to the concept of peyote use by somebody who 18 was facing narcotics charges. Whether it was a 19 condition of release or not, I can't imagine a judge 20 would have taken very kindly to do. 21 Then, most tellingly, there is a letter of August 22 2004, and I read a portion of that, which was sent by 23 Richard Lambert of the U.S. Attorney's Office to Mr. and 24 Mrs. Mooney at their address in Utah County saying you 25 are now the target -- effectively you are now the target
96 1 of a federal investigation. We are looking at filing 2 federal charges against you, and my client is still 3 there, last Thursday, to be arrested in this particular 4 case, having had a direct threat of investigation and 5 prosecution from the U.S. Attorney's Office. 6 The weekend before last, the first witness who 7 testified, the DEA agent, said that he was at her house 8 identifying himself as a DEA agent and there were men 9 wandering around the yard, some of them with DEA shirts 10 on, and they speak to an adult stepson who's present and 11 she wasn't there. She had -- obviously had a fair 12 warning they were coming to arrest her, and this idea 13 that now they know this is a federal prosecution and is 14 somehow largely different, they knew they were a target 15 of a federal prosecution with the August 4th -- 2004 16 letter, they know that they are the target of a federal 17 attempt to arrest them the weekend before last because 18 they had DEA agents on their doorstep and yet 19 Mrs. Mooney is still here to be arrested, standing at 20 the same property. She's not a flight risk. 21 In terms of dangerousness to the community, all 22 of this stuff that's been talked about with regards to 23 compounds and arming people and unstable people and 24 history of threatening people and obstructing justice, 25 all is testimony talking about contact -- conduct of the
97 1 defendant James Mooney. I don't concede that anybody's 2 talking about forming a compound or arming anything. 3 But that's all testimony about the conduct of 4 Mr. Mooney. The testimony of Terri Holland that they 5 felt threatened is, first of all, about an e-mail from 6 Mr. Mooney and statements by Mr. Mooney when 7 Mrs. Mooney's not present. I urge the Court to read 8 that e-mail. There is nothing threatening about that 9 e-mail at all. 10 Counsel claims that the government has introduced 11 testimony that there are unstable people who are members 12 of the church to which these two defendants have 13 belonged. We've heard no testimony that I can recall 14 about unstable people and there's certainly no testimony 15 that Linda Mooney has the power to somehow direct or 16 organize this army of unstable people that supposedly 17 exist to do anything in her behalf. 18 There is a claim that there was a confrontation 19 with a law enforcement officer. Your Honor, if either 20 of these defendants wanted to confront a law enforcement 21 officer, I would suggest that they would know how to 22 find somebody at the sheriff's department, especially 23 after winning a lawsuit in the Utah State Supreme Court. 24 That would be a confrontation. But bumping into 25 somebody accidentally at a gas station and saying,
98 1 quote, you knew that was a church when you raided it, 2 end quote, is not a confrontation which is illegal or 3 threatening or inappropriate and it's simply not a basis 4 to detain Linda Mooney. There was no evidence that even 5 Linda Mooney was on the scene when that happened. There 6 was just nothing about her being involved in that. 7 THE COURT: I understand your position concerning 8 your client. 9 MS. CORPORON: Thank you. 10 THE COURT: Thank you. 11 MS. ANGELOS: Your Honor, I'll speak first to 12 flight risk. With regards to the flight risk, similar 13 to Mrs. Mooney, Mr. Mooney was arrested in 2000. He was 14 bonded out. Between 2000 and 2004 there is no testimony 15 that anything -- pretrial violations have occurred or 16 that anything occurred. 17 THE COURT: And counsel, let me -- to 18 short-circuit this a little bit. Flight risk is not an 19 issue for me, all right? I am concerned about 20 dangerousness to the community. So that's the prong 21 that I want you to address, all right? 22 MS. ANGELOS: Okay. With regards -- I'll try to 23 go through each of -- everybody's testimony. With 24 regards to Mr. Riding and the encounter that happened in 25 2005, I would submit, Your Honor, that this was just a
99 1 chance encounter. It was the first meeting that 2 Mr. Mooney had a chance to meet with Mr. Riding. 3 That -- 4 THE COURT: An individual who apparently had been 5 at his house and had served a search warrant, a number 6 of years back, that resulted in the prosection in the 7 state system. 8 MS. ANGELOS: Correct, Your Honor, and I would 9 also submit that there was -- they suggest that was 10 inappropriate. But it wasn't anything he did that was 11 not illegal and he didn't make any threat to his life. 12 He didn't make any threats whatsoever. He simply 13 suggested that you know what you did was wrong. Then 14 the conversation ended. Since that time there hasn't 15 been anything with regards to phone conversations, him 16 showing up at work, him threatening him at his home. So 17 it was just a chance encounter to voice his frustrations 18 at what had occurred. 19 With regards to Mister -- Ms. Holland, I would 20 submit, Your Honor, that the conversations that he had 21 with Ms. Holland may have been misunderstood by 22 Ms. Holland. With regards to the conversations in 2001 23 after the preliminary hearing, what he had suggested 24 that she lied to them. He indicated that he didn't hate 25 her, that he forgave her, that if she didn't do this
100 1 video that there would be repercussions. But she 2 testified that the repercussions, that she assumed were, 3 they would be financial or involved in a suit. There 4 would be nothing with regards to, you know, a threat on 5 life or a threat of person. It would just be a 6 financial hit that she would take. 7 THE COURT: Ms. Angelos, let me focus you even 8 further, okay? Here's my concern concerning your 9 client. The allegations from the government are that he 10 has continued, even after the charges in the state of 11 Utah, continued using and/or distributing peyote, that 12 there was that video that was made wherein he admitted 13 that he had done those ceremonies right after September 14 11th of 2001. 15 MS. ANGELOS: That would be in 2001, Your Honor. 16 THE COURT: I understand that. But that's 17 subsequent to the charges being filed subsequent to his 18 release in the state system. It is that kind of conduct 19 that has me concerned. I want you to address that. 20 MS. ANGELOS: Well, first of all, Your Honor, 21 again it was back in 2001 and if you're concerned with 22 that conduct, there are a set of conditions that the 23 Court could impose to ensure that this does not occur 24 again, specifically, that he stay away from any 25 ceremonies dealing with peyote, that he not engage in
101 1 activity involving peyote, that he stay away from people 2 that are involved in peyote. There is a set of 3 conditions that the Court can impose upon my client to 4 alleviate those fears. I will again say -- 5 THE COURT: Let me ask you this: At the time 6 that he was released by the state judge, do you know 7 what the conditions were for his release at that time? 8 MS. ANGELOS: I don't, Your Honor. 9 THE COURT: Okay. You don't know whether that 10 was one of the conditions? 11 MS. ANGELOS: I don't, Your Honor. 12 THE COURT: That he just not engage in that 13 conduct anymore? 14 MS. ANGELOS: And to be honest, Your Honor, I do 15 not know the if that was a condition. 16 THE COURT: I understand. 17 MS. ANGELOS: With regards to the testimony where 18 there's suggestion on a Web site that there would be 19 continued activities going on, the Court -- this is 20 involving the church, this is not specifically a Web 21 site with regards to Mr. Mooney and there was suggestion 22 on that Web site that Mr. Mooney would not be conducting 23 these type of ceremonies that -- 24 THE COURT: I know the testimony was that they 25 would have some others who would come in to actually
102 1 lead those ceremonies. 2 MS. ANGELOS: Correct, Your Honor. 3 THE COURT: I remember that. Anything more? 4 MS. ANGELOS: No, Your Honor. We would just 5 submit, also, that you've received a number of letters. 6 THE COURT: I have and I want to make a mention 7 of that, a letter from Mr. Hamblin, a letter from 8 Mr. Macosman, I believe that's the way that he 9 pronounces his name. There are also a series of letters 10 signed by Allison Jones, Michelle Dixon, Kim Gabler, 11 Kathy Taylor, Karen Thompson, Michelle Stewart, Natalie 12 Paxton, Jennifer Atkinson, Heather Chandler, Susan Asay, 13 Kathy Harris and Heidi Conway as well as -- and I 14 can't -- I think it's Proctor, Richard and I can't tell 15 the other name. Are those the ones that you're 16 referencing? 17 MS. ANGELOS: It is, Your Honor. And I would 18 like to point out to the Court that these are people 19 that reside with him in his community. These are 20 neighbors. These are not members of his church. These 21 are neighbors that see -- believe that he is not a 22 threat to society, he is not a flight risk, that they 23 have known him a number of years and see him as a 24 functioning member of society. 25 THE COURT: Thank you.
103 1 Very briefly. 2 MS. TRAVIS: Yes, Your Honor. I just would like 3 to clear up some things that were said. First of all, 4 Ms. Corporon indicated that there was nothing in the 5 indictment past the incident in 2000. As the Court will 6 look at Counts 1 and 2, the indictment charges 7 conspiracies begin in April of 1996 continuing until the 8 date of indictment, June 15, 2005. So we do have those 9 charges, Your Honor. 10 With regards to the tape of the New York City 11 ceremony that was brought up also, we have a copy of 12 that tape if the Court would like to see it. In that 13 tape Mr. Mooney does, in fact, refer to peyote. It is 14 not just medicine. We would point out, again, that Jeff 15 Merkey testified clearly that it was just several months 16 ago in 2005 a Salvador Johnson told Jeff Merkey that he 17 was contacted and got a peyote order for -- 18 THE COURT: From another individual on behalf of 19 the Mooneys. 20 MS. TRAVIS: On Oklevueha EarthWalks and signed 21 by James Mooney and that Salvador Johnson would not 22 honor that. It was the triple, quadruple hearsay that 23 led Mr. Merkey I believe to Gary Tom being the 24 individual involved in that. But it's very clear from 25 Jeff Merkey's testimony and my recollection is Salvador
104 1 Johnson saw that order form and he told Jeff Merkey 2 about it. Jim Pritchard did, in fact, testify to this 3 Court that peyote is used by the Mooneys as therapy and 4 that many of the people who participated in those 5 ceremonies did, in fact, have emotional problems and 6 that was his position. 7 He also testified, Your Honor, that most of the 8 members of this church are non-Indians, they are whites. 9 Again, so whether Ms. Angelos wants to claim that 10 Mr. Mooney can direct a Native American to dole out 11 peyote, it's our position that he cannot be involved in 12 that activity. He is, in fact, directing it and 13 therefore distributing it, and does not allow him, just 14 because he uses a Native American, to do that. And in 15 particular, in light of the evidence that we've 16 presented, that most of people who receive it are not 17 Native American and that is a violation of the law. So 18 even if, let's say, that this roadman could perform 19 those ceremonies at Mr. Mooney's direction -- we would 20 say he cannot, but even if he were, it's illegal to 21 provide it to non Indians and that's what the evidence 22 establishes. 23 With regards to the threats that Ms. Angelos 24 referred to, we would point out that there is a 25 provision in the release and detention provision of the
105 1 code that talks about obstruction of justice, and it's 2 our position that obstruction of justice and a threat to 3 someone's safety, while they can be the same, those are 4 in fact two separate issues and don't necessary overlap. 5 While threats to someone who necessarily -- to a witness 6 isn't necessarily an obstruction of justice, we can have 7 an obstruction of justice that isn't a threat to 8 someone's safety. And here we have Mr. Mooney trying to 9 bribe Terri Holland, clearly an obstruction of justice 10 to change her testimony, denounce what she said, I'll 11 make sure you make more money. Threatening somebody 12 with financial ruin. Threatening people with lawsuits 13 if they cooperate with the government. These are all 14 obstructionus behavior. It's our position that that not 15 continue. 16 I have not had an opportunity, Your Honor, to see 17 any of the letters you've seen. 18 THE COURT: I'm sorry. I thought you were 19 provided copies of them. 20 MS. TRAVIS: I have not been given those. But, 21 Your Honor, I would just like to make one point about 22 one of those letters and Ms. Angelos represented to you 23 none of these people are members of the church. I would 24 submit to you that David Hamblin is. I would submit 25 that David Hamblin is illegally involved in his
106 1 activities with the Mooneys. I would submit to you, 2 Your Honor, that Mr. Hamblin had his license revoked. 3 I'm not sure if he's a psychiatrist of psychologist. It 4 was revoked in connection with inappropriate conduct 5 with his patients and evidence would establish a part of 6 that inappropriate conduct, while perhaps not the reason 7 for the revocation of the license, was in fact the 8 inappropriate use of peyote as therapy. 9 THE COURT: Okay. 10 MS. TRAVIS: We would submit, Your Honor, 11 that the defendants should be detained. 12 THE COURT: All right. Counsel, having heard the 13 evidence presented here, having had an opportunity to 14 review the pretrial service report, that was prepared by 15 Ms. Williamson, here's my ruling as it relates to each 16 of the defendants. 17 As to it relates to Linda Mooney, I do find that 18 there is a set of conditions under which the defendant 19 can be released from custody, and they are as follows 20 and I want you to pay particular attention to these 21 because any violation of any of these conditions that I 22 impose will result in you being brought back in front of 23 me and in all likelihood being in custody until this 24 case is over with. Do you understand that? 25 MRS. MOONEY: Yes.
107 1 THE COURT: Number one, you are to report to 2 pretrial services as directed. They will tell you how 3 often you need to contact them and whether that contact 4 needs to be in person or by telephone. Number two, you 5 are to continue residing at 1559 South 1460 East, 6 Spanish Fork, Utah, and you are not to change your 7 residence without the permission -- the prior permission 8 of pretrial services. Number three, you are to maintain 9 or actively seek employment. Number four, I do not want 10 you using any controlled substances of any kind. Do you 11 understand that? 12 MRS. MOONEY: Yes. 13 THE COURT: In order to ensure that, I am 14 ordering that you be subject to random urinalysis 15 testing as recommended and supervised by pretrial 16 services. I also do not want you using any alcohol 17 while on release. You are not to leave the state of 18 Utah without prior permission from pretrial services. 19 Any other conditions? Oh, I don't want any 20 contact with any potential witnesses in this case and 21 you've heard from some of them already. While on 22 release I want no contact whatsoever with them at all. 23 Any investigations are to be done through your attorney 24 and/or whatever investigators she wishes to use, but I 25 don't want any contact from you. Do you understand
108 1 that? 2 MRS. MOONEY: Yes. 3 THE COURT: Okay. 4 Ms. Travis? 5 MS. TRAVIS: Yes, Your Honor, we would request 6 the Court -- and you have covered this -- that the 7 defendant not possess any controlled substance or have 8 any controlled substances on the premises, either the 9 church or her residence. 10 THE COURT: In the use and/or possess, I don't 11 want any of it, period, while on release. 12 MS. CORPORON: Your Honor, she can't control what 13 other people do in another building. 14 THE COURT: I understand that. Her house, her 15 residence, all right, either in her possession and I 16 don't want it in the house. 17 MS. CORPORON: Your Honor, her house -- 18 THE COURT: You will find that pretrial will have 19 you sign an agreement where they can go in and search 20 your home at any time if they have some reasonable 21 suspicion of anything going on, all right? 22 Ms. Williamson, that's going to be part of it as 23 well. 24 MS. TRAVIS: Your Honor, I want to make it clear 25 that the church -- the Oklevueha Church is on that
109 1 property and it's our position that there should be no 2 controlled substance on the property at all, including 3 the church. 4 THE COURT: Mrs. Mooney, in light of the 5 allegations here, I want to make sure that that is also 6 a condition at this point. Do you understand that? 7 MRS. MOONEY: I do. 8 THE COURT: Okay. I don't want any ceremonies 9 taking place. I don't want any of that going on while 10 you are on release, and unless and until this matter is 11 resolved in this Court, that will be the order. 12 All right. Let's go on to Mr. Mooney. The 13 evidence that came in concerning Mr. Mooney I see as 14 being somewhat different. I do find at this point that 15 there is no set of conditions under which I can release 16 the defendant, especially on the prong of danger to the 17 community. 18 Now what I am concerned about, Ms. Angelos, is 19 this: I don't know what conditions were imposed by the 20 state court for his release when he was initially 21 arrested. I want to explore that and I want you to 22 explore that by getting a copy of those conditions and 23 once you have those, if you feel that you can make an 24 argument based on the evidence that's been presented 25 here, then I'm going to give you the opportunity to
110 1 address that. But unless and until I see that, for now, 2 I'm ordering that the defendant James Mooney be kept in 3 detention. 4 MS. ANGELOS: Your Honor, with regard to the 5 detention, would the Court consider putting him on the 6 waiting list for the halfway house? 7 THE COURT: I'll consider that, though it means, 8 at least the last time we heard, it's two months, two 9 and a half months or more. 10 MS. ANGELOS: Well, I prefer to get him on it 11 now, Your Honor. 12 THE COURT: Okay. I understand, but I'm giving 13 you an option to go and look and find that information 14 from the State and then come back and approach me and we 15 can readdress the matter at that point. 16 Anything further on this matter? 17 MS. TRAVIS: Nothing from the government, Your 18 Honor. 19 THE COURT: Okay. 20 MS. CORPORON: Nothing from the defendant 21 Mrs. Mooney, Your Honor. 22 THE COURT: All right. Ms. Mooney needs to sign 23 the release conditions before she leaves here. Ms. 24 Williamson? Thank you. We'll be in recess. 25 (Whereupon, this matter was concluded.)
111 1 C E R T I F I C A T E 2 3 4 STATE OF UTAH ) 5 ) ss. 6 COUNTY OF UTAH ) 7 8 9 I, Geri Jardine, do hereby certify that the 10 foregoing transcript was taken down by me 11 stenographically from electronically recorded tapes and 12 thereafter transcribed under my direction. 13 That the foregoing pages contain a true and 14 accurate transcript of the electronically recorded 15 proceedings and was transcribed by me to the best of my 16 ability from the tapes furnished to me. 17 18 19 ________________________ 20 Geri Jardine 21 22 23 24 25
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