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            1              IN THE UNITED STATES DISTRICT COURT

            2                   FOR THE DISTRICT OF UTAH

            3                       CENTRAL DIVISION


            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   ____________________________)


                                    Detention Hearing


           15               BEFORE THE HONORABLE SAMUEL ALBA

           16                         June 28, 2005



                       Transcript of Magnetically Recorded Hearing



                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


            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
                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
                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

















            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





            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



           10                EXHIBITS RECEIVED INTO EVIDENCE

                   Defendant's Exhibit 1                                72















            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.


            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.


            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?


            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?


            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


            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.


            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


            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.


            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


            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.


            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?


            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?


            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.


            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?


            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


            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.


            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.


            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


            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


            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


            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


            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


            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?


            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.


            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


            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


            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


            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.


            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.




            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.


            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.


            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.


            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.


            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


            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


            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


            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


            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


            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?


            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.


            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


            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?


            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.


            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


            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


            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?


            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


            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.


            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,


            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?


            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


            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


            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.




            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


            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


            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


            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


            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.


            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


            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


            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


            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.


            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?


            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


            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?


            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?


            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


            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.


            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.


            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


            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.


            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


            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.



            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.



            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?


            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


            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?


            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.


            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.




            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?


            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


            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


            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


            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


            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


            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


            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


            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


            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 --


            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


            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


            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


            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,


            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


            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


            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


            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


            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.


            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


            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


            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


            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.


            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


            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


            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


            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.)


            1                     C E R T I F I C A T E



            4   STATE OF UTAH          )

            5                         )  ss.

            6   COUNTY OF UTAH        )



            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.



           19                            ________________________

           20                              Geri Jardine






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