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