UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA


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   PATRICK KNOWLTON,            )                   DOCKET NO. CA 96-2467
                                                         )
                               PLAINTIFF,      )
                                                         )
                                                         )                   VS. : COURTROOM NO. 15
                                                         )                    WASHINGTON, D.C.
UNITED STATES OF AMERICA,  )
ET AL.,                                             )               JANUARY 20, 1998
                                                         )                9:32 P.M.
DEFENDANTS.                               )
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TRANSCRIPT OF STATUS HEARING
BEFORE THE HONORABLE JOHN GARRETT PENN,
UNITED STATES DISTRICT JUDGE

APPEARANCES:

FOR THE PLAINTIFF: JOHN H. CLARKE, ESQUIRE
1730 K STREET, N.W. -- SUITE 304
WASHINGTON, DC 20006
(202) 332-3030

FOR THE GOVERNMENT: RODERICK THOMAS, ESQUIRE, AUSA
555 4TH STREET, N.W. -- ROOM 10-106
WASHINGTON, D.C. 20001
(202) 514-7131

FOR DFT. AYMAN ALOURI: JORDAN, COYNE & SAVITS
BY: DWIGHT MURRAY, ESQUIRE
KAREN M. KOHN, ESQUIRE
1100 CONNECTICUT AVENUE, NW
WASHINGTON, DC 20036
(202) 496-2813

AGENCY COUNSEL (FBI): DAVID W. JENSEN, ESQUIRE
935 PENNSYLVANIA AVENUE, NW
WASHINGTON, DC 20535
(202) 324-4532

COURT REPORTER: HARRY DEUTSCH, OFFICIAL COURT REPORTER
6806 U.S. COURTHOUSE
WASHINGTON, D.C. 20001
(202) 273-0881

(COMPUTER-AIDED TRANSCRIPTION FROM STENOTYPE NOTES.)



2


1 P R O C E E D I N G S

2 THE DEPUTY CLERK: CIVIL ACTION 96- 2467, PATRICK

3 KNOWLTON VS. THE UNITED STATES, ET AL., AND AYMAN ALOURI.

4 JOHN CLARKE FOR PATRICK KNOWLTON; RICHARD THOMAS AND DAVID

5 JENSEN FOR THE UNITED STATES; DWIGHT MURRAY AND KAREN KOHN FOR

6 AYMAN ALOURI.

7 THE COURT: GOOD AFTERNOON, COUNSEL, ARE THERE ANY

8 PRELIMINARY MATTERS BEFORE I HEAR THE MOTIONS?

9 MR. CLARKE: NOT FROM THE PLAINTIFF.

10 MR. THOMAS: NO, YOUR HONOR.

11 THE COURT: ALL RIGHT, HAVE YOU DECIDED -- I THINK

12 THERE ARE TWO MOTIONS PENDING. HAVE YOU DECIDED THE ORDER

13 THAT YOU'D LIKE TO GO?

14 MR. THOMAS: WE HAVE NOT. I THINK WE'VE JUST NOW

15 DECIDED THE ORDER. THE FEDERAL DEFENDANTS ARE PREPARED TO GO

16 FIRST, IF THAT'S --

17 THE COURT: THAT'S FINE.

18 MR. THOMAS: GOOD AFTERNOON, YOUR HONOR. MY NAME IS

19 RODERICK THOMAS, I REPRESENT THE FEDERAL DEFENDANTS IN THIS

20 MATTER. THE FEDERAL DEFENDANTS, OF COURSE, ARE THE UNITED

21 STATES AND TWO INDIVIDUALS, LAWRENCE MONROE AND RUSSELL

22 BRANSFORD, WHO WERE INITIALLY SUED IN BOTH THEIR OFFICIAL

23 CAPACITIES AND INDIVIDUAL CAPACITIES.

24 AS AN INITIAL MATTER, PLAINTIFF HAS CONCEDED THAT

25 CERTAIN OF THE FEDERAL DEFENDANTS SHOULD BE DISMISSED. THE




3

1 UNITED STATES -- WE'D MOVE TO DISMISS THE UNITED STATES AS

2 WELL AS THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL

3 CAPACITIES. AND PLAINTIFF IS NOT OPPOSED TO THESE, AND WE'VE

4 SET FORTH THE REASONS IN OUR BRIEF AS TO WHY THESE PARTICULAR

5 DEFENDANTS SHOULD BE DISMISSED.

6 FOR EXAMPLE, THERE'S BEEN NO WAIVER OF SOVEREIGN

7 IMMUNITY FOR THE SECTION 1985 CLAIM AGAINST THE UNITED STATES

8 OR THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL CAPACITIES.

9 AND, IN FACT, THE SECOND AMENDED COMPLAINT WHICH THEY PROPOSE

10 TO FILE ALSO DOES NOT HAVE ALLEGATIONS AGAINST THE UNITED

11 STATES AND THE INDIVIDUAL DEFENDANTS IN THEIR OFFICIAL

12 CAPACITIES. SO THE SOLE POSSIBLE FEDERAL DEFENDANTS IN THIS

13 MATTER WOULD BE THE TWO INDIVIDUALS IN THEIR INDIVIDUAL

14 CAPACITIES. THAT'S RUSSELL BRANSFORD AND LAWRENCE MONROE.

15 AS WE'VE SET FORTH IN OUR BRIEFS, THERE ARE TWO

16 INDEPENDENT REASONS WHY THE ACTIONS -- ACTION SHOULD BE

17 DISMISSED AGAINST THEM. FIRST, FAILURE TO STATE A CLAIM AND,

18 SECOND, THESE INDIVIDUALS ARE ENTITLED TO QUALIFIED IMMUNITY.

19 THEY'VE PRESENTED NOTHING THAT WOULD ABROGATE THE QUALIFIED

20 IMMUNITY THAT THEY'RE ENTITLED TO.

21 AS AN INITIAL MATTER, THIS COMPLAINT ESSENTIALLY

22 STEMS FROM AN ALLEGED CONSPIRACY INTO THE INVESTIGATION INTO

23 THE DEATH OF VINCENT FOSTER. AS THE COURT IS AWARE AND AS

24 WE'VE PRESENTED IN OUR BRIEFS, THERE HAVE BEEN THREE ENTITIES

25 THAT HAVE REJECTED THESE CLAIMS AFTER THOROUGH




4

1 INVESTIGATIONS -- AN INVESTIGATION BY THE U.S. PARK POLICE,

2 INVESTIGATION BY THE INDEPENDENT COUNSEL ROBERT FISKE, AND THE

3 MOST RECENTLY CONCLUDED INVESTIGATION FROM INDEPENDENT COUNSEL

4 KENNETH STARR.

5 AS ANOTHER INITIAL MATTER, PLAINTIFF HAS ADMITTED

6 THAT HE HAS NOT ALLEGED ANY DEPRIVATION OF CONSTITUTIONAL

7 RIGHTS, EFFECTIVELY NO BIVENS TYPE ACTION BASED UPON THE

8 CONSTITUTION. SO THEIR SOLE THEORY HERE WOULD BE UNDER

9 SECTION 1985(2), AND AGAIN, FOR THAT SPECIFIC CLAIM, THERE IS

10 A FAILURE TO STATE A CLAIM AND THE INDIVIDUAL DEFENDANTS ARE

11 ENTITLED TO QUALIFIED IMMUNITY.

12 THAT SECTION GENERALLY PRECLUDES CONSPIRACIES TO

13 DETER SOMEONE FROM TESTIFYING BEFORE A GRAND JURY OR A COURT

14 IN FEDERAL COURT. AGAIN, FOR THE REASONS WE'VE SET FORTH IN

15 OUR BRIEF, THEY HAVE FAILED TO STATE A CLAIM ON THIS.

16 IN FACT, THERE'S NO BASIS FOR THIS CLAIM. NOWHERE

17 HAS PLAINTIFF ALLEGED THAT HE WAS ACTUALLY PRECLUDED FROM

18 TESTIFYING. IN FACT HE TESTIFIED ON NOVEMBER 1ST, 1995. HE

19 ALSO NEVER SPECIFICALLY ALLEGES THAT HE WAS PREVENTED FROM

20 TESTIFYING FULLY, FREELY, AND TRUTHFULLY.

21 IN FACT, THE PLAINTIFF'S OWN ALLEGATIONS, IN

22 PARAGRAPH 83 OF THE AMENDED COMPLAINT, IS THAT, QUOTE, "THE

23 PROSECUTORS DID NOT BELIEVE PLAINTIFF'S BIZARRE ACCOUNT OF

24 BEING HARASSED." THAT'S THE CRUX OF HIS ALLEGATION HERE, THAT

25 THE PROSECUTORS, THE INDEPENDENT COUNSEL MAY NOT HAVE WEIGHED




5

1 THE EVIDENCE IN THE PARTICULAR WAY HE WOULD LIKE. AGAIN,

2 THAT'S NOT A 1980 CLAIM. IT'S CERTAINLY NOT A CLAIM OR AN

3 ALLEGATION THAT WOULD ABROGATE THE IMMUNITY OF OUR TWO

4 INDIVIDUAL SPECIAL AGENTS, FBI AGENTS.

5 AS PART OF A 1985 CLAIM, THEY'VE ALSO GOT TO HAVE

6 SPECIFIC ALLEGATIONS OF CONSPIRACY. AND THAT'S ESSENTIAL TO A

7 1985 CLAIM, AS WE'VE SET FORTH IN OUR BRIEF. CONCLUSORY

8 ALLEGATIONS ARE INSUFFICIENT, PARTICULARLY WHEN YOU'VE GOT

9 FEDERAL OFFICIALS WHO ARE INVOLVED IN THE COMPLAINT.

10 A COMPLAINT MUST OVERCOME A RIGOROUS SCRUTINY. THEY

11 MUST HAVE DETAILED FACTUAL SUPPORT FOR THE EXISTENCE. THEY

12 CAN'T JUST HAVE BALD CLAIMS OF A CONSPIRACY. AND, ALSO, THE

13 PRINCIPAL ELEMENT OF CONSPIRACY IS AN AGREEMENT BETWEEN OR

14 AMONG THE PARTIES. AND, IN FACT, THE FAILURE TO DEMONSTRATE A

15 MUTUAL UNDERSTANDING BETWEEN OR AMONG THE DEFENDANTS IS FATAL

16 TO A CONSPIRACY CLAIM, WHICH IS PRECISELY WHY THIS COMPLAINT

17 MUST FALL. IN FACT, PLAINTIFF MAKES VERY VAGUE ALLEGATIONS,

18 SUCH AS, QUOTE, "THE ENTIRE COURSE OF CONDUCT WAS A SINGLE

19 CONTINUING ACTION" OR, QUOTE, "THERE WAS A MEETING OF THE

20 MINDS BETWEEN TWO OR MORE DEFENDANTS." AGAIN, VERY CONCLUSORY

21 ALLEGATIONS, PARTICULARLY AS PERTAINING TO THE TWO INDIVIDUAL

22 DEFENDANTS INVOLVED HERE.

23 YET ANOTHER REASON FOR FAILURE TO STATE A CLAIM IS

24 THAT, IN THEIR FIRST COMPLAINT, THEIR FIRST AMENDED COMPLAINT,

25 THEY ALLEGE THAT THE INDIVIDUAL DEFENDANTS WERE ACTING WITHIN




6

1 THE SCOPE OF THEIR EMPLOYMENT. NOW, IN THEIR SECOND AMENDED

2 COMPLAINT, THEY REMOVE THAT PARTICULAR ALLEGATION, BUT THAT

3 SIMPLY SHOWS SORT OF AN ATTEMPTED ART OF PLEADING --

4 THE COURT: THE SECOND COMPLAINT IS NOT BEFORE US.

5 MR. THOMAS: WE BELIEVE, YOUR HONOR, OUR MOTION GOES

6 TO DISMISS EITHER THE FIRST OR SECOND AMENDED COMPLAINT, AND

7 WE'VE MADE THAT ARGUMENT IN THE BRIEFS, THE SECOND AMENDED

8 COMPLAINT DOES NOT CURE ANY DEFICIENCIES IN THE FIRST AMENDED

9 COMPLAINT, SO I THINK OUR MOTION FAIRLY ADDRESSES BOTH OF

10 THOSE COMPLAINTS, WHICH ARE BOTH DEFICIENT.

11 AND, AGAIN, WITH RESPECT TO THE SCOPE OF EMPLOYMENT

12 ISSUE, THAT FIRST AMENDED COMPLAINT ALLEGED THAT THEY WERE

13 WITHIN THE SCOPE OF THEIR EMPLOYMENT, AND FOR THE REASONS

14 WE'VE SET FORTH IN OUR BRIEFS, THAT MEANS THEY'RE NOT PERSONS,

15 QUOTE, "PERSONS," FOR PURPOSES OF SECTION 1985'S REQUIREMENT

16 THAT "TWO OR MORE PERSONS CONSPIRED TOGETHER." AND, AGAIN,

17 FOR THE CASES THAT WE'VE CITED THERE, INDICATING THAT THE

18 FEDERAL GOVERNMENT AND THEIR OFFICIALS ARE SORT OF ONE PERSON

19 FOR PURPOSES OF THESE TYPES OF ALLEGATIONS.

20 AND, ALSO, TO THE EXTENT THAT THEIR ARGUMENT OR

21 THEIR ALLEGATION IS THAT THESE INDIVIDUALS ARE ACTING WITHIN

22 THE SCOPE OF THEIR EMPLOYMENT, TO THE EXTENT THAT THAT IS AN

23 ACTION THEN AGAINST THE UNITED STATES, FOR THE SAME REASONS WE

24 ARGUED THAT THE UNITED STATES CAN'T BE SUED UNDER THE 1985,

25 THAT SIMPLY APPLIES HERE AS WELL, AND THAT'S THE CLEAR LAW,




7

1 THAT THE UNITED STATES HAS NOT WAIVED SOVEREIGN IMMUNITY UNDER

2 THE CIVIL RIGHTS STATUTES.

3 SO, AGAIN, FOR THE REASONS I'VE JUST DISCUSSED THAT

4 ARE SET FORTH IN OUR BRIEFS, THERE IS A FAILURE TO STATE A

5 CLAIM HERE ON THESE ALLEGATIONS.

6 YET ANOTHER INDEPENDENT REASON REQUIRES THE

7 DISMISSAL, WE BELIEVE, OF THE INDIVIDUAL DEFENDANTS, AND

8 THAT'S QUALIFIED IMMUNITY, A VERY WELL-ESTABLISHED DOCTRINE

9 THAT REQUIRES AN OBJECTIVE INQUIRY INTO WHETHER THE

10 DEFENDANT'S ALLEGED ACTIONS VIOLATED CLEARLY-ESTABLISHED LAW

11 OR WHETHER THE ACTIONS ARE OBJECTIVELY REASONABLE. WE THINK

12 CLEARLY PLAINTIFF HAS NOT ALLEGED ANYTHING THAT WOULD TAKE

13 THEM OUT OF THAT QUALIFIED IMMUNITY RUBRIC.

14 FIRST OF ALL, AGENT BRANSFORD -- FIRST OF ALL,

15 MR. BRANSFORD DID NOT PARTICIPATE IN INTERVIEWS WITH

16 PLAINTIFF. THAT'S CLEARLY NOT A BASIS FOR THEIR ALLEGATIONS

17 HERE.

18 AND PLAINTIFF'S ALLEGATIONS REALLY ARE QUITE

19 CONCLUSORY, THAT BECAUSE AGENT BRANDSFORD -- HE MUST HAVE BEEN

20 A PART OF THE CONSPIRACY, BECAUSE HE SERVED THE SUBPOENA UNDER

21 WHICH PLAINTIFF WAS REQUIRED TO TESTIFY. WELL, THE VERY

22 PURPOSE OF THAT SUBPOENA, OF COURSE, IS TO ALLOW HIM TO TELL,

23 AND THEREFORE THERE ARE CERTAINLY NO ALLEGATIONS HERE OR IN

24 ANY OF THE CIRCUMSTANCES SURROUNDING IT WHICH WOULD SUGGEST

25 THAT QUALIFIED IMMUNITY IS ABROGATED, EVEN IF THEY WERE TO




8

1 SHOW SOME MEETING OF THE MINDS TO ESTABLISH SOME CONSPIRACY

2 THEORY UNDER SECTION 1985.

3 TURNING TO AGENT MONROE, THE ONLY CONTACT MR. MONROE

4 HAD WITH PLAINTIFF WAS IN THE APRIL AND MAY 1994 INTERVIEWS,

5 WHICH WERE MEMORIALIZED IN THE 302'S. WELL, THAT WAS A YEAR

6 AND A HALF BEFORE THE GRAND JURY TESTIMONY OF THE PLAINTIFF.

7 THERE'S REALLY NO TIE HERE BETWEEN THE ACTIONS OF MONROE AND

8 SOME CONSPIRACY AND SOME DETERRENCE TO TESTIFY BEFORE THE

9 GRAND JURY TESTIMONY. IT'S QUITE A LEAP. THERE ARE NO

10 ALLEGATIONS THAT WOULD SUPPORT SUCH A THING.

11 ESSENTIALLY, WHAT PLAINTIFF DOES NOT LIKE, HE

12 DISAGREES WITH THE WAY THAT AGENT MONROE MEMORIALIZED THEIR

13 INTERVIEW THERE IN THE 302'S. THAT'S NOT A 1985 CLAIM. AND

14 IN FACT THEY'VE GOT TO SHOW SOME CLEARLY-ESTABLISHED LAW THAT

15 WOULD ABROGATE A QUALIFIED IMMUNITY DOCTRINE, AND THEY

16 CERTAINLY HAVE NOT DONE THAT HERE.

17 AND, AGAIN, THERE'S SIMPLY NO TIE BETWEEN WHAT MIGHT

18 BE IN THE 302 AND A DETERRENCE OF SOME SENSE TO TESTIFY BEFORE

19 THE GRAND JURY. HE WAS FREE, OF COURSE, TO TESTIFY TO

20 ANYTHING IN FRONT OF THE GRAND JURY, AND IN HIS OWN

21 ALLEGATIONS HE INDICATES THAT THE PROSECUTORS SIMPLY DID NOT

22 BELIEVE HIS, QUOTE, "BIZARRE THEORY," TO USE HIS OWN

23 ALLEGATIONS.

24 BUT EVEN IF WE WERE TO LOOK AT THE 302'S, HIS

25 PRIMARY CLAIM HERE IS THAT MONROE SOMEHOW DID NOT MEMORIALIZE




9

1 THE FACT THAT PLAINTIFF BELIEVED THAT THE CAR HE SAW IN FORT

2 MARCY PARK WAS NOT MR. FOSTER'S.

3 WELL, SETTING ASIDE THAT OTHER WITNESSES DISAGREED

4 WITH HIS TESTIMONY OR HIS STATEMENTS, LOOKING AT THE 302'S

5 THEMSELVES -- AND AGAIN THIS, WE BELIEVE, IS ENTIRELY

6 UNNECESSARY IN LIGHT OF THE FACT THAT HIS ALLEGATIONS ON THEIR

7 FACE ARE INSUFFICIENT -- BUT LOOKING AT THE 302'S, THE APRIL

8 15TH, 1994 302, WHICH IS ATTACHED TO OUR MOTION, IT'S CLEAR

9 HERE THAT MONROE HAD MEMORIALIZED THE FACT THAT PLAINTIFF

10 BELIEVED THE CAR HE SAW WAS OLDER THAN MR. FOSTER'S CAR.

11 THE FACT THAT IT WAS -- OR HIS PERCEPTION OF THE

12 FACT THAT IT WAS BROWN OR RUST BROWN, RATHER THAN PERHAPS

13 SILVER GRAY OR MR. FOSTER'S CAR. BUT, IN ANY EVENT, SOME OF

14 THE WITNESSES, THE OTHER WITNESSES VIEWED IT DIFFERENTLY, SO

15 MR. MONROE WENT AND REINTERVIEWED THE PLAINTIFF. THE MAY

16 11TH, 1994 302 ALSO MEMORIALIZES PLAINTIFF'S VIEW THAT THE CAR

17 WAS OLDER THAN THE ONE HE WAS SHOWN THAT WAS MR. FOSTER'S;

18 THAT THE CAR HE SAW WAS SHORTER IN LENGTH, MORE COMPACT; THAT

19 IT HAD A FLAT FINISH OF PAINT RATHER THAN GLOSSY; THAT THE

20 LICENSE PLATE DID NOT HAVE AS MANY LETTERS PRECEDING

21 PRESUMABLY THE NUMBERS -- SO THE 302'S ON THEIR FACE INDICATE

22 THAT PLAINTIFF BELIEVED THAT THE CAR WAS DIFFERENT THAN THE

23 ONE HE WAS SHOWN AS MR. FOSTER'S.

24 SO THIS WHOLE CONSPIRACY THEORY --

25 THE COURT: THIS IS ALL IN THE 302?




10

1 MR. THOMAS: THAT'S CORRECT, YOUR HONOR, AND WE'VE

2 ATTACHED BOTH OF THOSE TO OUR MOTION TO DISMISS.

3 SO IT'S PLAIN, AFTER EVEN LOOKING AT THE 302'S, THAT

4 HE SIMPLY DOES NOT LIKE THE WAY MONROE MEMORIALIZED, AND WOULD

5 PREFER TO HAVE PERHAPS OTHER ADDITIONAL DESCRIPTIVE MATERIAL

6 PERHAPS, BUT IN ANY EVENT, THERE'S NOTHING TO SHOW

7 CLEARLY-ESTABLISHED LAW TO HAVE A WITNESS'S STATEMENTS PUT

8 INTO A 302 THAT ARE PRECISELY THE WORDS OR THE LIKING OF THE

9 WITNESS.

10 AND EVEN IF THERE WERE, WHERE IS THE TIE BETWEEN

11 THAT 302, WHAT IS IN THOSE PARTICULAR DOCUMENTS, AND HIS

12 ALLEGATION, BALD ALLEGATION THAT HE WAS SOMEHOW -- THAT

13 THERE'S SOME CONSPIRACY TO DETER HIM FROM GRAND JURY

14 TESTIMONY? THERE IS QUITE A LEAP OF FAITH AND CERTAINLY

15 NOT -- WELL, IT'S NOT ESTABLISHED IN LAW OR IN FACT HERE.

16 AGAIN, THERE'S CERTAINLY NO TIE BETWEEN THESE ALLEGATIONS AND

17 AN ALLEGED CONSPIRACY.

18 HE ALSO CHALLENGES MONROE'S TESTIMONY BEFORE A

19 SENATE BANKING COMMITTEE. AGAIN, FIRST OF ALL, WHERE'S HIS

20 STANDING TO CHALLENGE THOSE? IN FACT, WHERE'S HIS STANDING TO

21 CHALLENGE ANYTHING THAT THE INDEPENDENT PROSECUTOR HAS DONE?

22 BUT EVEN SETTING THAT ASIDE, THERE'S SIMPLY NO TIE

23 BETWEEN MR. MONROE'S TESTIMONY AND THE TESTIMONY OF THE

24 PLAINTIFF BEFORE THE GRAND JURY. AGAIN, THERE'S A REAL

25 DISJOINT HERE, AND IT SIMPLY DOES NOT MAKE OUT A 1985 CLAIM.




11

1 AND, ALSO, FOR THE REASONS WE'VE SET FORTH IN THE

2 BRIEFS, OUR AGENT HAS ABSOLUTE IMMUNITY, WE BELIEVE, TO HIS

3 TESTIMONY BEFORE THAT COMMITTEE.

4 NEVERTHELESS, EVEN IF HE DID NOT, THERE'S SIMPLY

5 NO -- THERE'S NO INTERSECTION HERE THAT WOULD PRESENT A

6 CONSPIRACY CLAIM. AND CERTAINLY NOTHING HERE THAT WOULD

7 ABROGATE THE WELL-ESTABLISHED DOCTRINE OF QUALIFIED IMMUNITY.

8 IN SUM, PLAINTIFF PRESENTS NOTHING TO ABROGATE THE

9 QUALIFIED IMMUNITY, EVEN SETTING ASIDE THE FAILURE TO STATE A

10 CLAIM ARGUMENT. WE DO HAVE TWO INDEPENDENT ARGUMENTS HERE.

11 AND IT'S CITED IN OUR BRIEF. JUST LAST YEAR IN SIMPKINS, OUR

12 COURT OF APPEALS HAD RECENTLY REAFFIRMED, QUOTE, "THE SUPREME

13 COURT'S INSTRUCTION TO ALLOW FEDERAL COURTS TO WEED OUT

14 INSUBSTANTIAL BIVENS SUITS EXPEDITIOUSLY." THAT'S AT 108

15 F.3RD 366.

16 THIS ESSENTIALLY PRESENTS SORT OF THE RUBRIC, I

17 THINK, THAT OUR COURT AND THE SUPREME COURT HAVE VIEWED VERY

18 CRITICALLY ALLEGATIONS THAT ATTEMPT TO ABROGATE SOVEREIGN

19 IMMUNITY. HERE WE THINK THEY SIMPLY HAVE NOT DONE SO. WE ASK

20 FOR THE DISMISSAL.

21 THE COURT: ALL RIGHT. MR. CLARKE.

22 MR. CLARKE: YOUR HONOR, AS AN INITIAL MATTER,

23 PLAINTIFF HAS NOT OPPOSED THE DEFENDANT'S MOTION TO DISMISS

24 THE UNITED STATES, BUT FOR SOMEWHAT DIFFERENT REASONS THAN THE

25 DEFENDANT CLAIMS. WE DON'T BELIEVE THAT THE ISSUE OF




12

1 SOVEREIGN IMMUNITY IS BEFORE THE COURT, BECAUSE WE HAVE NOT

2 YET EXHAUSTED OUR ADMINISTRATIVE REMEDIES UNDER THE FEDERAL

3 TORT CLAIMS ACT, AND THEREFORE IT'S NOT BEFORE THE COURT.

4 AS THE COURT KNOWS, THE PLAINTIFF CLAIMS THAT THIS

5 CASE ARISES OUT OF AN OVERALL CONSPIRACY TO OBSTRUCT JUSTICE,

6 THAT IS, A COVERUP OF THE FACTS AND CIRCUMSTANCES SURROUNDING

7 MR. FOSTER'S DEATH, AND THAT THIS SUBSTANTIVE CIVIL RIGHTS

8 VIOLATION WAS COMMITTED IN FURTHERANCE --

9 THE COURT: WELL, IS THE PLAINTIFF COMPLAINING ABOUT

10 SOMETHING THAT HAPPENED TO HIM OR IS HE COMPLAINING ABOUT JUST

11 GENERALLY SOMETHING THAT HAPPENED?

12 MR. CLARKE: NO, YOUR HONOR, THE PLAINTIFF IS

13 COMPLAINING ABOUT WHAT HAPPENED TO HIM, BUT INSOFAR AT LEAST

14 AS THE DEFENDANT MONROE IS CONCERNED, THE PLAINTIFF CLAIMS

15 THAT THERE IS IN FACT AN ONGOING OVERALL FBI CONSPIRACY AND

16 HAS BEEN FOR THE LAST THREE AND A HALF YEARS TO HIDE THE

17 FACTS, AND THAT THIS SUBSTANTIVE CIVIL RIGHTS VIOLATION WAS

18 COMMITTED IN FURTHERANCE OF AND PURSUANT TO THAT CONSPIRACY.

19 THEREFORE ALL MEMBERS OF THE CONSPIRACY ARE EQUALLY LIABLE FOR

20 THAT CIVIL RIGHTS VIOLATION.

21 NOW, DEFENDANT -- WE WOULD NOT ALLEGE THAT DEFENDANT

22 MONROE PARTICIPATED --

23 THE COURT: IF HE WAS NOT ASSERTING ANY INJURY TO

24 HIMSELF, I TAKE IT HE WOULDN'T HAVE STANDING TO MAKE THE OTHER

25 ARGUMENT; IS THAT RIGHT?




13

1 MR. CLARKE: THAT'S CORRECT, YOUR HONOR, IF HE DID

2 NOT HAVE A VALID SECTION 1985 CLAIM, THEN HE WOULD NOT HAVE

3 ANY CAUSE OF ACTION TO GO FORWARD, EXCEPT WITH THE POSSIBLE

4 EXCEPTION OF INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

5 BUT, IN ANY EVENT, HE DOES CLAIM THERE IS IN FACT AN

6 OVERALL CONSPIRACY AND THAT THE VIOLATION HE SUFFERED WAS

7 COMMITTED IN FURTHERANCE OF AND PURSUANCE OF THAT CONSPIRACY.

8 WE HAVE CITED FOUR CASES, YOUR HONOR, FOUR CIVIL

9 RIGHTS CASES WHERE THE COURT HELD THAT THE PLAINTIFF IN A

10 CIVIL RIGHTS ACTION MAY ASSERT A LIABILITY BASED UPON -- BASED

11 UPON AN OVERALL CONSPIRACY. QUOTING THE SAFEGUARD MUTUAL

12 INSURANCE COMPANY, WHICH WE PRIMARILY RELY ON, IT SAYS THAT

13 "AN OVERALL CONSPIRACY MAY BE CHARGED AS THE LEGAL MECHANISM

14 THROUGH WHICH TO IMPOSE LIABILITY ON EACH AND ALL OF THE

15 DEFENDANTS WITHOUT REGARD TO THE PERSON DOING THE PARTICULAR

16 ACT." SO, AGAIN, WE SUGGEST THAT ALL MEMBERS OF THIS OVERALL

17 CONSPIRACY ARE LIABLE FOR THE SUBSTANTIVE CIVIL RIGHTS

18 VIOLATION COMMITTED IN FURTHERANCE OF THE CONSPIRACY.

19 AND WE HAVE CITED A NUMBER OF CASES, PRIMARILY THE

20 PINKERTON CASE, YOUR HONOR, WHICH IS A SUPREME COURT CASE

21 WHICH WAS FOLLOWED IN OUR COURTS IN THE DISTRICT OF COLUMBIA,

22 AND THAT SETS FORTH THE STANDARD FOR LIABILITY FOR ACTS

23 COMMITTED IN FURTHERANCE OF THE CONSPIRACY, AND THAT STANDARD

24 IS THAT THE DEFENDANT WILL BE HELD LIABLE WITHOUT REGARD TO

25 HIS DOING OF THE PARTICULAR ACT COMPLAINED OF, AS LONG AS THAT




14

1 ACT WAS COMMITTED IN FURTHERANCE OF THE CONSPIRACY AND IT

2 COULD REASONABLY BE FORESEEN AS A NECESSARY OR NATURAL

3 CONSEQUENCE OF THE CONSPIRACY.

4 AND WE SUGGEST, YOUR HONOR, THAT ESSENTIALLY WHAT

5 PLAINTIFF COMPLAINS OF IS NOT ONLY THE 42 U.S.C. VIOLATION,

6 BUT IT'S ALSO WITNESS TAMPERING, AND WE SUGGEST THAT WITNESS

7 TAMPERING IS CERTAINLY REASONABLY FORESEEABLE AS A NECESSARY

8 OR NATURAL CONSEQUENCE TO HIDE THE FACTS AND CIRCUMSTANCES

9 SURROUNDING THE DEATH OF MR. FOSTER, AND OF COURSE

10 MR. KNOWLTON IS A WITNESS IN THAT CASE.

11 YOUR HONOR, THE DEFENDANT'S CLAIM --

12 THE COURT: MR. KNOWLTON WAS A WITNESS, AND I GATHER

13 HE TESTIFIED BEFORE THE GRAND JURY?

14 MR. CLARKE: YES, YOUR HONOR, THAT'S CORRECT.

15 THE COURT: HE TESTIFIED FULLY AND FREELY; IS THAT

16 IT?

17 MR. CLARKE: THAT'S CORRECT, YOUR HONOR. THE

18 DEFENDANT'S -- ONE OF THEIR DEFENSES IS THAT HE DID IN FACT

19 TESTIFY FULLY, FAIRLY AND TRUTHFULLY, THAT'S CORRECT. BUT

20 ACTUAL DETERRENCE IS NOT AN ELEMENT OF A SECTION 1985(2)

21 COMPLAINT. AND IN FACT THAT VERY SAME ARGUMENT WAS RAISED IN

22 ANOTHER CASE, A VERY SIMILAR CASE TO THE ONE THAT PLAINTIFF

23 COMPLAINS OF, AND THE COURT SPECIFICALLY HELD -- SAID ACTUAL

24 DETERRENCE IS NOT AN ELEMENT OF A SECTION 1985 CLAIM.

25 THE COURT: WHICH CASE IS THAT?




15

1 MR. CLARKE: THAT IS BREVER VS. ROCKWELL

2 INTERNATIONAL CORPORATION, AND THAT'S 40 F.3RD 1119. IT'S A

3 TENTH CIRCUIT CASE, 1994.

4 THE COURT: JUST SO I'M CLEAR, MR. CLARKE, THERE'S

5 NOTHING IN THE ALLEGATION THAT GOES TO WHATEVER HAPPENED

6 BEFORE THE GRAND JURY; IS THAT RIGHT? I MEAN, WHEN HE WENT

7 THERE, HE TESTIFIED -- WHATEVER HIS TESTIMONY WAS -- AND

8 NOTHING HAPPENED TO IMPEDE HIS TESTIMONY BEFORE THE GRAND JURY

9 ITSELF, WITHIN THE GRAND JURY?

10 MR. CLARKE: THAT'S CORRECT, YOUR HONOR.

11 THE COURT: THAT'S NOT INVOLVED HERE?

12 MR. CLARKE: THAT'S CORRECT, HE WAS NOT ACTUALLY

13 DETERRED.

14 YOUR HONOR, THE DEFENDANTS ALSO CLAIM AS TO THIS --

15 AS TO THE PLAINTIFF'S CLAIM OF OVERALL CONSPIRACY, THAT THE

16 PLAINTIFF HAS FAILED TO PLEAD AGREEMENT WITH SUFFICIENT

17 PARTICULARITY TO SURVIVE THE MOTION TO DISMISS.

18 WE HAVE CITED, YOUR HONOR, LAIRD V. TATUM, A U.S.

19 SUPREME COURT CASE, 408 U.S. 1, AND THE LAIRD CASE MAKES IT

20 PRETTY CLEAR THAT AN EXPRESS AGREEMENT IS NOT NECESSARY, AND

21 THAT ALL THAT IS NECESSARY TO PLEAD THE OVERALL CONSPIRACY IS

22 THAT THE CO-CONSPIRATORS SHARE IN THE GENERAL CONSPIRATORIAL

23 OBJECTIVES, AND WE THINK WE HAVE PLEADED THAT WITH SUFFICIENT

24 PARTICULARITY.

25 YOUR HONOR, I THINK, AMONG OTHER THINGS, WE DO RELY




16

1 IN LARGE PART ON THE SEQUENCE OF EVENTS WHICH OCCURRED IN THIS

2 CASE. THAT IS CERTAINLY NOT THE ONLY GROUNDS THAT WE RELY ON

3 SHOWING THAT WE DID IN FACT PLEAD AGREEMENT, BUT IT IS

4 SIGNIFICANT. AND THE SEQUENCE OF EVENTS ARE AS FOLLOWS.

5 DEFENDANT MONROE REPEATEDLY TRIED TO OBTAIN ADMISSION FROM

6 PLAINTIFF THAT THE CAR THAT HE SAW IN FORT MARCY PARK COULD

7 HAVE BEEN MR. FOSTER'S CAR. NOW, HE WAS UNSUCCESSFUL IN THAT

8 ENDEAVOR, AND PLAINTIFF STUCK TO HIS STORY -- HE WASN'T GOING

9 TO CHANGE HIS STORY NO MATTER HOW MUCH DEFENDANT MONROE LEANED

10 ON HIM.

11 THE COURT: WELL, IS THERE ANYTHING -- ISN'T THAT

12 GOOD INVESTIGATIVE WORK, IF SOMEONE IS TRYING TO PIN IT DOWN,

13 IF YOU'RE AN INVESTIGATOR?

14 MR. CLARKE: YES, YOUR HONOR, PERHAPS IT IS, BUT

15 MONROE FALSIFIED THESE REPORTS, HAVING FAILED TO OBTAIN THAT

16 ADMISSION.

17 THE COURT: HOW DID HE FALSIFY THE REPORT?

18 MR. CLARKE: HE SAID PLAINTIFF IDENTIFIED THE CAR AS

19 A 1988 TO 1990 CAR. PLAINTIFF WAS TAKEN TO THE FBI LABORATORY

20 DURING THE COURSE OF HIS SECOND FBI INTERVIEW, HE PICKED OUT

21 TWO COLOR CAR PANELS, NOS. 3599 AND 3500. THE FBI LABORATORY

22 TECHNICIAN AT THE TIME, FREDERICK WHITEHURST, TOLD PLAINTIFF

23 HE HAD PICKED OUT A 1983 OR 1984 CAR. SO MONROE WROTE THAT HE

24 PICKED OUT -- HE IDENTIFIED IT -- WITHOUT ANY OF THE USE OF

25 THE QUALIFIED WORDS LIKE "BELIEVED," "APPEARED" OR ANYTHING




17

1 LIKE THAT -- SAID HE PICKED IT OUT AND SAID IT WAS A 1988 TO

2 1990 CAR. AND MONROE FURTHER SAID HE REITERATED THIS

3 DESCRIPTION AS A 1988 TO 1990 CAR. THAT FITS QUITE NICELY

4 WITH MR. FOSTER'S CAR, WHICH WAS 1989. BUT THAT'S NOT WHAT

5 THE PLAINTIFF SAID.

6 YOUR HONOR, AS -- CONTINUING WITH THIS SEQUENCE OF

7 EVENTS. THE FBI SUBPOENAED PLAINTIFF BY AGENT BRANSFORD IN A

8 DIRECT RESPONSE TO A NEWSPAPER PUBLICATION THAT THE FBI HAD

9 FALSIFIED HIS REPORTS, AND MR. KNOWLTON WAS QUOTED IN THAT

10 NEWSPAPER ARTICLE AS SAYING THAT THE FBI TOLD OUTRIGHT LIES.

11 THAT NEWSPAPER ARTICLE APPEARED ON U.S. NEWSSTANDS ON OCTOBER

12 24TH, 1995. THAT WAS THE SAME DAY THE OFFICE OF INDEPENDENT

13 COUNSEL PREPARED A SUBPOENA FOR MR. KNOWLTON TO TESTIFY BEFORE

14 THE WHITEWATER GRAND JURY. THEY DIDN'T SERVE IT THAT DAY,

15 THEY HELD IT. THE FBI, IT APPEARS, HELD IT FOR A PERIOD OF

16 TWO DAYS. THEY SERVED IT ON THE 26TH -- THAT'S THURSDAY,

17 OCTOBER 26TH. WHEREUPON -- THAT'S THE BEGINNING OF -- THAT

18 VERY SAME DAY, THIS HARASSMENT BEGAN, THIS INTIMIDATION BEGAN.

19 NOW, OF COURSE, THIS GRAND JURY SUBPOENA WAS KNOWN

20 ONLY TO THE FBI AND THE OFFICE OF INDEPENDENT COUNSEL, SO I

21 THINK THE REASONABLE INFERENCE IS THAT THEY ARE -- THAT AT THE

22 VERY LEAST THE FBI COULD BE RESPONSIBLE FOR ORGANIZING AND

23 PERPETRATING THIS HARASSMENT.

24 NOW, WHEN MR. KNOWLTON WAS BEING HARASSED, HE CALLED

25 THE FBI. WHEN DEFENDANT BRANSFORD SERVED THE SUBPOENA, GAVE




18

1 HIM -- HE GAVE PLAINTIFF A COPY OF HIS BUSINESS CARD AND SAID,

2 "IF YOU HAVE ANY PROBLEMS, YOU JUST GIVE ME A CALL." AND THAT

3 IS PLEADED IN THE COMPLAINT. SO PLAINTIFF DID CALL, HE

4 REPEATEDLY CALLED, BUT THE FBI REFUSED TO RESPOND TO HIS

5 REPEATED PLEAS FOR HELP UNTIL THE FOLLOWING MONDAY, WHICH WAS

6 OCTOBER 30TH.

7 NOW, WHEN DEFENDANT BRANSFORD CALLED -- FINALLY

8 RETURNED PLAINTIFF'S CALLS, HE SAID THAT HE WOULD STOP BY AND

9 VISIT. NOW, PLAINTIFF ASKED FOR SOME ADVANCE NOTICE BEFORE

10 DEFENDANT BRANSFORD VISITED, SO THAT PLAINTIFF COULD CALL ME,

11 CALL HIS LAWYER, AND DEFENDANT BRANSFORD TRIED TO TALK

12 PLAINTIFF OUT OF THAT, SAYING, "YOU DON'T NEED A LAWYER, I

13 JUST WANT TO TALK TO YOU. YOU DON'T NEED TO HAVE YOUR LAWYER

14 THERE." BUT PLAINTIFF INSISTED. HE SAID, "AFTER WHAT'S

15 HAPPENED TO ME, I DON'T WANT TO TALK TO ANYONE WITHOUT MY

16 LAWYER BEING PRESENT." SO, RELUCTANTLY, DEFENDANT BRANSFORD

17 AGREED TO THAT.

18 BUT LATER ON THAT AFTERNOON, DEFENDANT BRANSFORD

19 CALLED FROM APPARENTLY HIS CAR PHONE IN FRONT OF PLAINTIFF'S

20 BUILDING, UNANNOUNCED, AND ASKED IF HE COULD COME UP. AND

21 PLAINTIFF SAID ONCE AGAIN, "I WANT YOU TO WAIT. I'M GOING TO

22 CALL MY LAWYER, HAVE MY LAWYER TAKE A TAXICAB OVER HERE, HE'LL

23 BE HERE IN FIFTEEN MINUTES. JUST WAIT FOR ME TO CALL HIM, AND

24 THEN WE CAN GO FORWARD." AND BRANSFORD, DEFENDANT BRANSFORD

25 TRIED TO TALK PLAINTIFF OUT OF IT AGAIN. AGAIN HE WAS




19

1 UNSUCCESSFUL, SO HE DID IN FACT AGREE TO WAIT FIFTEEN MINUTES.

2 PLAINTIFF HUNG UP HIS PHONE. HE PICKED UP HIS PHONE TO CALL

3 ME AFTER LOCATING MY BUSINESS CARD, AND PLAINTIFF'S PHONE WAS

4 DEAD.

5 NOW, WE ALLEGE THAT THE FBI DISCONNECTED PLAINTIFF'S

6 TELEPHONE. HE'S NEVER BEFORE OR SINCE HAD A PROBLEM WITH HIS

7 TELEPHONE LIKE THAT. AND I THINK WHAT'S VERY TELLING, YOUR

8 HONOR, IS THAT DEFENDANT BRANSFORD DIDN'T WAIT THE FIFTEEN

9 MINUTES FOR ME TO SHOW UP. TWO OR THREE MINUTES LATER HE WAS

10 KNOCKING ON PLAINTIFF'S DOOR. WHY WOULD HE DO THAT, HAVING

11 AGREED TO WAIT FOR FIFTEEN MINUTES? I THINK THE ANSWER IS

12 PRETTY CLEAR, IS BECAUSE HE KNEW THAT PLAINTIFF WOULD BE

13 UNABLE TO CONTACT ME, BECAUSE HE HAD DISCONNECTED PLAINTIFF'S

14 TELEPHONE.

15 THE COURT: HOW DID HE DISCONNECT PLAINTIFF'S

16 TELEPHONE?

17 MR. CLARKE: YOUR HONOR, I DON'T KNOW. IT'S MY

18 UNDERSTANDING THAT THE FBI HAS THE CAPABILITY TO DISCONNECT

19 FROM A REMOTE LOCATION A TELEPHONE, SO IT CAN'T BE USED,

20 EITHER INCOMING OR OUTCOMING TELEPHONE CALLS.

21 THE COURT: YOU SAY IT'S YOUR UNDERSTANDING?

22 MR. CLARKE: I DON'T HAVE ANYTHING --

23 THE COURT: YOU HAVE NOTHING TO SUPPORT THE

24 ALLEGATION THAT THE FBI DID DISCONNECT THE PHONE; IS THAT

25 RIGHT?




20

1 MR. CLARKE: ONLY THE SEQUENCE OF EVENTS, THE

2 CIRCUMSTANCES. WHY DID DEFENDANT BRANSFORD TWICE TRY TO TALK

3 HIM OUT OF HAVING COUNSEL PRESENT AND THEN NOT WAIT THE

4 FIFTEEN MINUTES FOR COUNSEL TO SHOW UP? I THINK THAT GOES TO

5 THE SEQUENCE OF EVENTS WHICH SUPPORTS THIS ALLEGATION OF

6 DEFENDANT BRANSFORD'S PARTICIPATION IN THE OVERALL CONSPIRACY.

7 AND, FURTHERMORE, YOUR HONOR, WHEN THE DEFENDANT

8 BRANSFORD SHOWED UP, HE IMMEDIATELY UNBUTTONED HIS SUIT

9 JACKET, PULLED BACK HIS SUIT JACKET SO AS TO DISPLAY HIS GUN,

10 AND THROUGH THE ENTIRE CONVERSATION WITH PLAINTIFF, HE GRINNED

11 AS THOUGH HE HAD KNOWN EXACTLY WHAT PLAINTIFF HAD GONE

12 THROUGH.

13 THE COURT: THIS IS ALL SET FORTH IN THE RECORD?

14 MR. CLARKE: IN THE PLEADING, YES, YOUR HONOR.

15 ALSO, YOUR HONOR, DEFENDANT BRANSFORD VOLUNTEERED

16 THAT HE WORKED WITH DEFENDANT MONROE. NOW, OF COURSE, JUST

17 DAYS EARLIER, AN ALLEGATION THAT DEFENDANT MONROE HAD LIED ON

18 THE FBI 302'S WAS PUBLISHED IN THE NEWSPAPER, SO MR. KNOWLTON

19 ASKED DEFENDANT BRANSFORD, "WHOSE SIDE ARE YOU ON?" DEFENDANT

20 BRANSFORD SAID, "I'M ON KENNETH STARR'S SIDE." PLAINTIFF

21 LOOKED AT HIM, SAID, "CAN I TRUST YOU?" DEFENDANT BRANSFORD

22 LOOKED AT HIM, GRINNED AT HIM, LEANED OVER AND SAID, WHILE

23 DISPLAYING HIS WEAPON, "I DON'T KNOW, MR. KNOWLTON, THAT'S A

24 GOOD QUESTION." WHY WOULD HE SAY THAT? I SUGGEST HE SAID

25 THAT BECAUSE HE WAS TRYING TO FURTHER INTIMIDATE HIM BEFORE




21

1 HIS APPEARANCE BEFORE THE GRAND JURY. AGAIN, THE SEQUENCE OF

2 EVENTS, WE THINK, ARE VERY INSTRUCTIVE IN THIS CASE.

3 ALSO, AS TO THIS ISSUE OF AGREEMENT, THE COURTS

4 GENERALLY LOOK TO INTENT. AND THE COURT -- THE SUPREME

5 COURT'S OPINION IN LAIRD V. TATUM, AGAIN, 408 U.S. 1 IS

6 INSTRUCTIVE ON THIS POINT. THE SUPREME COURT SAID, "THUS, IN

7 SOME INSTANCES, ARRANGEMENTS WHICH MIGHT APPEAR PROPER, SUCH

8 AS INTERVIEWS, ARE ALLEGED TO HAVE BEEN IMPROPER BECAUSE

9 THEY'RE PERFORMED WITH INTENT TO INTIMIDATE AND NOT GATHER

10 INFORMATION." WE SUGGEST TO THE COURT THAT'S EXACTLY WHAT

11 HAPPENED HERE.

12 AND, YOUR HONOR, ALSO, THE COURTS LOOK --

13 THE COURT: WELL, MR. CLARKE, WHAT EVIDENCE IS THERE

14 THAT THERE WAS AN INTENTION TO INTIMIDATE? YOU KNOW, THERE

15 ARE TWO -- MOST OF THE THINGS YOU'VE DESCRIBED CAN CERTAINLY

16 HAVE TWO SIDES TO THEM. IF A WITNESS IS NOT -- IF A PERSON IS

17 NOT THE TARGET OF A GRAND JURY, NORMALLY THEY DON'T HAVE

18 COUNSEL. THERE'S NOTHING UNUSUAL ABOUT THAT.

19 MR. CLARKE: YOUR HONOR, BUT WHY WOULD -- AGAIN,

20 THINK OF THE ENTIRE SEQUENCE OF EVENTS, INSOFAR AS DEFENDANT

21 BRANSFORD'S ACTIONS RAISE THE INFERENCE, THE REASONABLE

22 INFERENCE THAT HE WAS INTENDING TO INTIMIDATE. WHY DID

23 DEFENDANT BRANSFORD FAIL AND REFUSE TO RESPOND TO THIS

24 INTIMIDATION, AFTER GIVING HIM -- GIVING PLAINTIFF HIS

25 BUSINESS CARD AND SUGGESTING THAT HE WOULD -- "IF YOU HAVE ANY




22

1 PROBLEMS, GIVE ME A CALL." WELL, WHAT PROBLEMS WAS DEFENDANT

2 BRANSFORD ANTICIPATING? ONE, RAISES THE QUESTION. WHY WOULD

3 HE INTIMIDATE HIM WHEN HE CAME TO HIS APARTMENT? WHY DID HE

4 NOT WAIT THE FIFTEEN MINUTES? WHY DID HE THREE TIMES TRY TO

5 TALK PLAINTIFF OUT OF HAVING COUNSEL PRESENT? AND WHY DID HE

6 NOT WAIT FIFTEEN MINUTES AFTER HAVING HUNG UP HIS TELEPHONE?

7 AND WHY DID HE GRIN AT PLAINTIFF DURING THE ENTIRE

8 CONVERSATION WHEN HE WAS IN PLAINTIFF'S APARTMENT, AS IF HE

9 HAD KNOWN -- HE KNEW EXACTLY WHAT PLAINTIFF HAS SUFFERED? AND

10 ADDITIONALLY WHY -- WHY DIDN'T HE WAIT FIFTEEN MINUTES?

11 WE THINK THAT THE REASONABLE INFERENCE TO BE DRAWN

12 FROM THAT, YOUR HONOR, IS THAT HE KNEW THAT PLAINTIFF WAS

13 UNABLE TO CONTACT ME, AND THAT HE -- THAT'S WHY HE DIDN'T WAIT

14 FIFTEEN MINUTES, EVEN THOUGH HE HAD RELUCTANTLY AGREED TO DO

15 SO. AND WHY DIDN'T HE CALL BEFORE AND SCHEDULE AN APPOINTMENT

16 LIKE HE HAD AGREED TO DO?

17 NOW, YOUR HONOR, AS TO DEFENDANT'S QUALIFIED

18 IMMUNITY ARGUMENT, I THINK THAT THEY HAVE SET FORTH THE

19 LANGUAGE OF THE COURTS IN THEIR BRIEFS ACCURATELY, THAT

20 QUALIFIED IMMUNITY UNDER THE CIRCUMSTANCES OF THE CASES THAT

21 THE DEFENDANT HAS CITED WAS PROPERLY GRANTED. I CERTAINLY

22 DON'T ARGUE WITH THAT.

23 BUT WHAT THE DEFENDANT IS DOING IS HE'S MIXING

24 QUESTIONS OF LAW AND QUESTIONS OF FACT. THIS ARGUMENT, THIS

25 QUALIFIED IMMUNITY ARGUMENT WAS ASSERTED BY FBI AGENTS SUED




23

1 UNDER SECTION 1985 IN HOBSON V. WILSON, A LEADING CASE BY THE

2 DISTRICT OF COLUMBIA, AND IT WAS REJECTED BY OUR COURT OF

3 APPEALS. AND THE COURT HELD, "IN AN EFFORT TO OVERCOME THE

4 OBVIOUS, DEFENDANTS FOCUS ON THE TRIAL EVIDENCE AND ARGUE THAT

5 EACH INDIVIDUAL ACT THAT THEY WERE SHOWN TO HAVE COMMITTED WAS

6 LAWFUL AND THAT THEY WERE CONSEQUENTLY IMMUNE." AND THE COURT

7 WENT ON, "THIS ARGUMENT SERIOUSLY MISCONSTRUES THE NATURE OF

8 THE QUALIFIED IMMUNITY DEFENSE, AND IN PARTICULAR SEPARATES

9 QUESTIONS OF LAW AND FACT."

10 YOUR HONOR, THERE IS NOTHING THAT WOULD ABROGATE THE

11 DEFENDANT'S LIABILITY FOR PARTICIPATION IN THE CONSPIRACY TO

12 OBSTRUCT JUSTICE. THAT IS NOT -- THAT IS NOT OBJECTIVELY

13 REASONABLE BY ANY STANDARD. SO IF IN FACT DEFENDANTS

14 BRANSFORD AND MONROE PARTICIPATED IN AN OVERALL CONSPIRACY,

15 THEY'RE JUST NOT IMMUNE.

16 NOW THE DEFENDANTS FOCUS ON EACH INDIVIDUAL ACT THAT

17 THESE DEFENDANTS ARE ALLEGED TO HAVE COMMITTED AND SAY, "WELL,

18 EVEN IF TRUE, EACH OF THESE INDIVIDUAL ACTS ARE LAWFUL."

19 WELL, MAYBE THEY ARE AND MAYBE THEY'RE NOT, BUT THAT MISSES

20 THE POINT. IF THEY'RE MEMBERS OF THIS OVERALL CONSPIRACY TO

21 OBSTRUCT JUSTICE, THEN THEY'RE NOT IMMUNE. IT'S JUST AS

22 SIMPLE AS THAT.

23 NOW, THE DEFENDANTS HAVE REPEATEDLY ARGUED THAT THE

24 PLAINTIFF'S SUIT IS REALLY A GUISE FOR ATTACKING THE OFFICIAL

25 CONCLUSION OF SUICIDE IN THE PARK. THAT IS JUST NOT TRUE.




24

1 THE ULTIMATE WISDOM OF THIS OFFICIAL CONCLUSION OF SUICIDE IN

2 THE PARK IS NOT DIRECTLY RELEVANT TO THIS CASE. IT JUST

3 ISN'T.

4 WHAT WE ALLEGE, AND THE MOTION THAT WE FILED --

5 THE COURT: DOES THE DEFENDANT -- OR THE

6 DEFENDANT -- DOES THE PLAINTIFF QUARREL WITH THAT?

7 MR. CLARKE: NO, YOUR HONOR.

8 THE COURT: HE DOES NOT?

9 MR. CLARKE: WELL, THAT'S NOT ENTIRELY CORRECT. THE

10 PLAINTIFF ALLEGES THAT THERE IS IN FACT AN OVERALL CONSPIRACY

11 TO HIDE THE FACT AND CIRCUMSTANCES SURROUNDING THE DEATH. AND

12 THE PLAINTIFF ALSO ALLEGES THAT MR. FOSTER WAS DEAD BEFORE --

13 BY 4:30 P.M. WHEN PLAINTIFF WAS IN THE PARK, AND THAT

14 MR. FOSTER'S CAR WAS NOT IN THE PARK.

15 NOW WE HEARD COUNSEL SAY THAT OTHER WITNESSES --

16 THE COURT: MR. FOSTER WAS IN THE PARK AT THAT TIME?

17 MR. CLARKE: WE DON'T KNOW WHERE MR. FOSTER WAS.

18 BUT WE DO KNOW FROM THE EVIDENCE THAT HE WAS DEAD AT THAT

19 TIME, OKAY? BUT HIS CAR WAS NOT IN THE PARKING LOT.

20 NOW, COUNSEL SAID --

21 THE COURT: IS THAT THE OFFICIAL REPORT, THAT HE WAS

22 DEAD AT THAT TIME AT 4:30?

23 MR. CLARKE: NO, YOUR HONOR.

24 THE COURT: HOW DOES HE KNOW?

25 MR. CLARKE: BECAUSE OF THE FORENSIC EVIDENCE. WE




25

1 HAVE THREE INDICATIONS THAT HE WAS DEAD BY THAT TIME. NUMBER

2 ONE, A U.S. PARK POLICE OFFICER ESTIMATED THAT HE HAD BEEN

3 DEAD TWO TO THREE HOURS SHORTLY AFTER 6:00, AND MR. KNOWLTON

4 WAS IN THE PARK AT 4:30; NO. 2, A FAIRFAX COUNTY PARAMEDIC

5 ESTIMATED HE WAS DEAD TWO TO FOUR HOURS; AND, NUMBER THREE,

6 THE AUTOPSY DOCTOR SAID THAT HE HAD EATEN WHAT APPEARS TO BE A

7 LARGE MEAL OF MEAT AND POTATOES TWO TO THREE HOURS AFTER --

8 TWO TO THREE HOURS BEFORE HIS DEATH. NOW, WE ALL KNOW -- IT'S

9 UNDISPUTED IN THIS CASE -- THAT HE HAD A HAMBURGER AND FRENCH

10 FRIES AROUND 1:00 O'CLOCK, SO THAT GIVES US, ACCORDING TO ALL

11 THE ESTIMATES, BETWEEN 2:00 AND 3:00.

12 NOW, BOTH MR. FISKE AND MR. STARR COMPLETELY STAY

13 AWAY FROM THE TIME OF DEATH. MR. FISKE SAYS SOMETIME BETWEEN

14 THEY LEFT THE WHITE HOUSE AND HIS BODY WAS FOUND. MR. STARR

15 SIMPLY SAYS TIME OF DEATH CANNOT BE DETERMINED. NO ESTIMATE,

16 NO NOTHING. THAT'S ALL HE SAYS.

17 NOW THE DEFENDANT SAID THAT THE OTHER WITNESSES --

18 THAT PLAINTIFF'S RECOLLECTION IS NOT IN ACCORD WITH THE OTHER

19 WITNESSES THAT ARE IN THE PARK. I DON'T BELIEVE THAT THAT'S

20 THE CASE. WE HAVE THE OTHER WITNESSES' DESCRIPTIONS, THE TWO

21 OTHER CIVILIAN WITNESSES, THEY BOTH DESCRIBE IT AS A

22 MID-1980'S BROWN HONDA. BUT, AGAIN, UPON RE-INTERVIEW UNDER

23 MR. STARR'S REPORT, THEY HAVE, ACCORDING TO MR. STARR, CHANGED

24 THEIR STORY.

25 NOW, YOUR HONOR, AGAIN, WE DON'T -- THE WISDOM OF




26

1 THE OFFICIAL CONCLUSION IS NOT RELEVANT IN THIS CASE, AND WE

2 DON'T CLAIM THAT IT IS. WHAT WE CLAIM IS THAT THE EVIDENCE --

3 WE OFFER EVIDENCE OF A COVERUP, NOT TO SHOW THAT THE OFFICIAL

4 CONCLUSION IS INCORRECT, BUT RATHER TO SHOW THAT THERE'S AN

5 OVERALL CONSPIRACY TO HIDE THE CIRCUMSTANCES SURROUNDING THE

6 DEATH. AND THAT'S OBVIOUSLY, CLEARLY UNDER OUR THEORY OF

7 LIABILITY, A RELEVANT INQUIRY, BECAUSE WE WOULD, OF COURSE,

8 HAVE TO SHOW AN OVERALL CONSPIRACY TO SHOW THAT THESE

9 DEFENDANTS ARE LIABLE BECAUSE OF THE 1985 VIOLATION COMMITTED

10 IN FURTHERANCE OF THAT OVERALL CONSPIRACY.

11 NOW, YOUR HONOR, I DON'T KNOW WHETHER THE COURT

12 WANTS ME TO FAIRLY BRIEFLY REVIEW SOME OF THE EVIDENCE THAT WE

13 FILED, EVIDENCE OF A COVERUP -- I WOULD BE HAPPY TO DO SO, IF

14 YOU LIKE. I THINK IT'S CERTAINLY RELEVANT IN THIS CASE AS TO

15 WHETHER OR NOT THERE'S A COVERUP. AND WE ALLEGE THAT THERE

16 IS. IN FACT, WE ALLEGE THAT THERE'S CLEAR EVIDENCE OF A

17 COVERUP. AND IT'S PRETTY MUCH EVERYWHERE YOU LOOK.

18 IN MR. STARR'S RECENT REPORT, THERE'S NOT ONE SINGLE

19 SUBSTANTIVE POINT THAT HE MAKES IN THAT REPORT THAT STANDS UP

20 TO SCRUTINY WHEN COMPARED WITH THE FEDERAL -- WITH THE

21 INVESTIGATIVE RECORD UPON WHICH THAT REPORT IS SUPPOSEDLY

22 BASED. NOT ONE. NOT ONE. IT'S 114 PAGES, AND THERE'S

23 EVIDENCE OF A COVERUP ON ALMOST EVERY SINGLE PAGE.

24 ADDITIONALLY, YOUR HONOR, I WOULD ASK THE COURT TO

25 CONSIDER WHAT THE U.S. -- WHAT THE SPECIAL DIVISION OF THE




27

1 U.S. COURT OF APPEALS DID WITH MR. STARR'S REPORT. WE

2 SUBMITTED A 20-PAGE SUBMISSION TO THAT THREE-JUDGE PANEL AND

3 ASKED THEM TO ORDER MR. STARR TO APPEND IT TO HIS OWN REPORT.

4 NOW THE STATUTE SAYS THAT THE COURT, THAT SPECIAL DIVISION,

5 MAY IN ITS DISCRETION ORDER THE -- TAKE SUBMISSIONS FROM

6 PERSONS NAMED IN THE REPORT, AND THAT THE COURT MAY IN ITS

7 DISCRETION APPEND IN WHOLE OR IN PART THOSE -- THAT

8 SUBMISSION.

9 NOW, MR. STARR OBJECTED TO OUR SUBMISSION. WE

10 FILED -- EXCUSE ME -- AN APPENDIX ALONG WITH OUR MOTION AND

11 OUR SUBMISSION TO THE SPECIAL DIVISION, AND THE APPENDIX

12 INCLUDED, AMONG OTHER THINGS, OUR OPPOSITION, WHERE THIS

13 EVIDENCE, WE SUGGEST, IS EVIDENCE OF A COVERUP.

14 NOW, NOTWITHSTANDING THAT MR. KNOWLTON WAS NEVER

15 NAMED IN THE REPORT, AS THE STATUTE SAYS -- HE WAS REFERRED TO

16 AS C-2, WHICH STANDS FOR THE CIVILIAN WITNESS -- AND

17 NOTWITHSTANDING THAT THE VAST MAJORITY OF THAT SUBMISSION TO

18 THE U.S. COURT OF APPEALS HAD NOTHING TO DO WITH MR. KNOWLTON

19 DIRECTLY, BUT RATHER WAS EVIDENCE OF AN FBI COVERUP FOR THE

20 LAST THREE AND A HALF YEARS, THE SPECIAL DIVISION ORDERED

21 MR. STARR OVER HIS OBJECTION TO APPEND THE REPORT, AND THAT

22 REPORT -- THAT APPENDIX HAS EXCERPTS FROM, I BELIEVE, FEDERAL

23 GOVERNMENT RECORDS SHOWING A NUMBER OF POINTS OF A COVERUP.

24 NOW, I WOULD SUGGEST TO THE COURT, TO THIS COURT,

25 THAT PERHAPS THE LAW OF THE CASE MAY BE APPLICABLE UNDER THESE




28

1 CIRCUMSTANCES AS TO THIS FINDING OF WHETHER OR NOT THERE IS AN

2 OVERALL CONSPIRACY, BECAUSE INASMUCH AS THAT WAS ENTIRELY

3 DISCRETIONARY WITH THE COURT OF APPEALS, WHETHER OR NOT TO

4 ORDER --

5 THE COURT: THAT'S HARDLY LAW OF THE CASE, THOUGH,

6 IS IT? THE COURT OF APPEALS ORDERED IT TO BE ADDED TO THE

7 RECORD. THERE'S A PROVISION FOR THAT IN THE STATUTE, AS YOU

8 POINT OUT. AND THERE'S A REASON FOR THAT, ISN'T THERE?

9 MR. CLARKE: YOUR HONOR, THE REASON -- IT'S ENTIRELY

10 DISCRETIONARY WITH THE COURT WHETHER TO APPEND IT IN WHOLE OR

11 IN PART. WHAT I'M SAYING IS THAT THEY STRETCHED THE STATUTE

12 TO ORDER MR. STARR TO APPEND EVIDENCE OF AN FBI COVERUP, THAT

13 IS, EVIDENCE BY MR. STARR'S OWN INVESTIGATOR --

14 THE COURT: EVIDENCE OF AN ALLEGED FBI COVERUP; IS

15 THAT RIGHT?

16 MR. CLARKE: YES, YOUR HONOR, BUT IT'S REALLY --

17 THE COURT: LET'S NOT MAKE IT AS THOUGH IT'S FACT.

18 BECAUSE I'M NOT SURE YOU'RE IN A POSITION TO ARGUE THAT, ARE

19 YOU?

20 MR. CLARKE: YOUR HONOR --

21 THE COURT: IT'S AN ALLEGATION MADE BY MR. KNOWLTON,

22 I GATHER?

23 MR. CLARKE: THAT'S CORRECT, YOUR HONOR.

24 THE COURT: ALL RIGHT.

25 MR. CLARKE: THAT'S CORRECT.




29

1 AMONG OTHER THINGS, WHAT THAT COURT ORDERED

2 MR. STARR TO APPEND TO HIS OWN REPORT WAS EVIDENCE, PRETTY

3 CLEAR EVIDENCE, I THINK INDISPUTABLE EVIDENCE, THAT THE FBI

4 SHOWED MRS. FOSTER, FOR INSTANCE, THE WRONG GUN. BECAUSE THEY

5 KNEW SHE COULD ONLY IDENTIFY A SILVER GUN -- THE GUN FOUND IN

6 MR. FOSTER'S HAND WAS BLACK -- SO THEY SHOWED HER A SILVER

7 GUN, AND SHE IDENTIFIED IT. LO AND BEHOLD, IN THE FISKE

8 REPORT, IT IS REPORTED SHE IDENTIFIED THE GUN FOUND IN

9 MR. FOSTER'S HAND.

10 WELL, THERE'S REALLY NO EXPLANATION I THINK FOR WHY

11 IT IS THEY WOULD SHOW HER A SILVER GUN AND THEN REPORT THAT

12 SHE IDENTIFIED THE GUN, WHEN THEY KNEW SHE COULD ONLY IDENTIFY

13 A SILVER GUN AND NOT A BLACK GUN, AND IT'S UNCONTESTED THAT

14 THE GUN FOUND IN MR. FOSTER'S HAND WAS BLACK.

15 SIMILARLY, MR. STARR'S REPORT DOES THE SAME THING.

16 IT IMPLIES THAT THE GUN FOUND IN MR. FOSTER'S HAND WAS SILVER

17 BY SAYING, AMONG OTHER THINGS, THAT MRS. FOSTER AND WEBSTER

18 HUBBELL WENT AND CHECKED, AND THE SILVER GUN WAS MISSING THE

19 EVENING OF MR. FOSTER'S DEATH. BUT MR. STARR DOESN'T TELL US

20 WHAT COLOR THE GUN FOUND IN MR. FOSTER'S HAND WAS.

21 BOTH THE FISKE REPORT AND THE STARR REPORT, AS I

22 SAID, IS JUST REPLETE WITH THIS SORT OF THING. I THINK THERE

23 REALLY IS, IF YOU LOOK AT THE WHOLE REPORT, IT'S JUST -- IT'S

24 JUST SO OBVIOUS, I THINK, THAT THERE'S AN ONGOING CONSPIRACY,

25 A COVERUP.




30

1 THE COURT: AND I GATHER THAT MR. KNOWLTON IS SAYING

2 THAT INCLUDES MR. FISKE AND MR. STARR?

3 MR. CLARKE: NO, YOUR HONOR, MR. KNOWLTON IS SAYING

4 ONLY THAT INCLUDES ONLY THE FBI. MR. FISKE'S REPORT WAS

5 REALLY LITTLE MORE THAN AN FBI SUMMARY OF AN INVESTIGATION.

6 THAT'S CLEAR JUST BY READING THE FISKE REPORT. IT SAID OUR

7 INVESTIGATORS ARE SIX AGENTS, TWO OF WHOM ARE NAMED DEFENDANTS

8 IN THIS CASE.

9 AND, AGAIN, MR. STARR'S REPORT -- I CERTAINLY DON'T

10 ALLEGE THAT MR. STARR IS A MEMBER OF THIS COVERUP. MR. STARR

11 DIDN'T PERFORM THESE LABORATORY ANALYSES. MR. STARR DID NOT

12 INTERVIEW THE WITNESSES. MR. STARR DID NOT PREPARE THE 302'S,

13 AND AS FAR AS WE KNOW, MR. STARR HAD NO PART IN WRITING THAT

14 REPORT. THERE'S NO NAME ON IT. WE DON'T KNOW WHO CONTRIBUTED

15 TO WRITING THAT REPORT. WE MAKE THE POINT IN THE APPENDIX

16 THAT THE COURT ORDERED APPENDED TO MR. STARR'S REPORT THAT THE

17 FBI -- THIS HAS BEEN AN FBI INVESTIGATION FROM THE VERY

18 BEGINNING, AND THAT THEY WERE ALL OVER THIS CASE DURING THE

19 COURSE OF THE FIRST 16-DAY U.S. PARK POLICE INVESTIGATION.

20 THEY CONCLUDED THAT THERE WAS A SUICIDE IN THE PARK AT THAT

21 TIME. THAT WAS ON AUGUST 5TH OF 1993. THEY INVESTIGATED

22 UNDER MR. FISKE, AND ONCE AGAIN, THEY INVESTIGATED UNDER

23 MR. STARR, THEY ARE HIS INVESTIGATORS.

24 SO IF WE HAD EVIDENCE OF OTHER -- PEOPLE OTHER THAN

25 THE FBI PARTICIPATING IN THIS OVERALL -- WHAT WE ALLEGE IS AN




31

1 OVERALL CONSPIRACY, THEY WOULD BE NAMED DEFENDANTS, BUT WE

2 DON'T HAVE THAT SORT OF EVIDENCE.

3 THE COURT: ALL RIGHT. WELL, GET BACK TO MR.

4 KNOWLTON'S CASE.

5 MR. CLARKE: YES, YOUR HONOR.

6 THE COURT: CONSPIRACY AND THE AGREEMENT, IF THERE

7 WAS AN AGREEMENT. DO YOU HAVE ANY EVIDENCE OF ANY AGREEMENT

8 BY THESE PARTIES?

9 MR. CLARKE: WELL, YOUR HONOR --

10 THE COURT: WHEN I ASK FOR EVIDENCE, OF COURSE,

11 MR. CLARKE, I'M ASKING FOR SOMETHING THAT'S IN THE RECORD, I'M

12 NOT ASKING YOU GENERALLY. BUT WHAT IS IN THE RECORD?

13 MR. CLARKE: WELL, YOUR HONOR, FROM WHAT'S IN THE

14 RECORD, WE ALLEGE THAT -- WE HAVE SHOWN AN AGREEMENT BY THE

15 SEQUENCE -- NUMBER ONE, MOST PARTICULARLY, MOST PRIMARILY, THE

16 SEQUENCE OF EVENTS. NOBODY KNEW THAT MR. KNOWLTON WAS A

17 SUBPOENAED WITNESS. WE HAVE MADE A PRETTY ACCURATE SHOWING, I

18 THINK, NUMBER ONE, THAT MR. KNOWLTON WAS HARASSED, AS WE HAVE

19 DESCRIBED. WE HAVE NOT ONLY HIS AFFIDAVIT, BUT WE ALSO HAVE

20 THE AFFIDAVITS OF THE TWO OTHER WITNESSES. MR. CHRISTOPHER

21 RUDDY CALLED IT AN OBVIOUS ATTEMPT TO INTIMIDATE, AND

22 DR. KATHRYN KAPLAN, WHO ACCOMPANIED MR. KNOWLTON ON THE FIRST

23 DAY OF THIS INTIMIDATION, SAID IT WAS A COORDINATED --

24 INTIMIDATING AND COORDINATED, AND THAT AT ONE POINT IT BECAME

25 SO OVERWHELMING THAT SHE HAD TO STRUGGLE TO MAINTAIN HER




32

1 COMPOSURE TO KEEP FROM CRYING. DR. KAPLAN IS A PH.D

2 CONSULTANT AND EDUCATOR.

3 WE ALSO HAVE FILED IN OUR OPPOSITION THE RESULTS OF

4 A POLYGRAPH EXAMINATION MR. KNOWLTON PASSED.

5 AND WE'VE ALSO FILED, YOUR HONOR, A REPORT OF A

6 PSYCHIATRIST, THAT IS, DR. THOMAS C. GOLDMAN -- HE'S A

7 HARVARD-TRAINED PSYCHIATRIST -- AND AFTER CONDUCTING A

8 THOROUGH PSYCHIATRIC EXAMINATION, INCLUDING PSYCHOLOGICAL

9 TESTING, DR. GOLDMAN CONCLUDED, "IN SHORT, HE DID NOT DISPLAY

10 TYPICAL PARANOID DELUSIONAL THINKING."

11 AS TO THE RESULTS OF PSYCHOLOGICALS --

12 THE COURT: MR. KNOWLTON?

13 MR. CLARKE: YES. AND DR. GOLDMAN ALSO SAID THAT,

14 AS TO THE PSYCHOLOGICAL TESTING, HE SAID, "DR. MOLDAUER

15 ADMINISTERED THE MMPI, A STANDARD PERSONALITY INVENTORY, TO

16 MR. KNOWLTON. THE TEST SHOWED NO INDICATION OF A PARANOID

17 PROCESS OR ANY OTHER PATHOLOGICAL PROCESS THAT WOULD TEND TO

18 UNDERMINE MR. KNOWLTON'S CREDIBILITY IN THIS INSTANCE."

19 AND AS TO THE ELEMENT OF DAMAGES IN 1985, WE BELIEVE

20 WE'VE MADE AN ADEQUATE SHOWING AS TO THAT, ALSO BY

21 DR. GOLDMAN'S REPORT, WHICH SAID THAT "MR. KNOWLTON'S RESPONSE

22 TO THE SITUATION CONTAINS ELEMENTS OF EXCELLENT COPING, FOR

23 EXAMPLE, MAKING AND REPORTING OBSERVATIONS, SEEKING HELP, AND

24 ELEMENTS OF FEELING OVERWHELMED INDICATED BY TYPICAL SIGNS AND

25 SYMPTOMS OF POST-TRAUMATIC STRESS. THE STRESS APPEARS TO COME




33

1 FROM TWO RELATED SOURCES -- ONE, THE SENSE OF PHYSICAL DANGER

2 NATURALLY ENGENDERED BY THE HARASSMENT DESCRIBED; AND, TWO,

3 THE EXPERIENCE OF BEING TREATED BY RECOGNIZED AUTHORITY

4 FIGURES WITH MISTRUST OR SUSPICION, AND ATTEMPTS TO DISCOUNT

5 OR TO DISCREDIT HIM IN RESPONSE TO HIS ATTEMPTS TO TELL THE

6 TRUTH AND TO BE A RESPONSIBLE CITIZEN."

7 ALSO, YOUR HONOR, WE HAVE FILED WRITTEN REPORTS BY

8 TWO EXPERTS WHO ARE FAMILIAR WITH THIS TACTIC OF INTIMIDATION

9 THAT PATRICK KNOWLTON SUFFERED. ONE IS MR. ED L. GUNDERSON, A

10 28-YEAR VETERAN OF THE FBI. MR. GUNDERSON WAS A SENIOR

11 SPECIAL AGENT IN CHARGE OF THE FBI LOS ANGELES DIVISION AT THE

12 TIME OF HIS RETIREMENT. HE WROTE, "THAT WHICH IS DESCRIBED IS

13 A TECHNIQUE THAT I AM BOTH AWARE OF AND KNOWLEDGEABLE ABOUT,

14 WHICH IS USED BY GOVERNMENT AGENTS AND LAW ENFORCEMENT

15 OFFICERS." MR. GUNDERSON GOES ON, "THIS TECHNIQUE IS USED FOR

16 INTIMIDATION AND TO PREVENT A WITNESS FROM TESTIFYING AND/OR

17 TESTIFYING TRUTHFULLY AND/OR COOPERATING WITH OFFICIALS OUT OF

18 FEAR OF HARM FOR THE WITNESS OR HIS LOVED ONES." AND HE ALSO

19 SAYS THAT HE KNOWS OF INSTANCES WHEN IT HAS BEEN USED.

20 THE OTHER AFFIDAVIT THAT WE FILED, YOUR HONOR, BY AN

21 EXPERT WITNESS IN THIS REGARD, IS FROM GENE WHEATON.

22 MR. WHEATON HAS 20 YEARS EXPERIENCE AS AN INVESTIGATOR AND

23 OVER FORTY YEARS EXPERIENCE IN THE CRIMINAL JUSTICE SYSTEM.

24 HE SAYS IN HIS SWORN AFFIDAVIT THAT "INTIMIDATION IS ONE

25 PURPOSE OF A CLOSE OBVIOUS SURVEILLANCE." HE SAYS THAT, "THIS




34

1 CASE APPEARS TO BE THE MISUSE OF SURVEILLANCE TECHNIQUES TO

2 SCARE AND INTIMIDATE THE WITNESS OR TO DESTROY HIS

3 CREDIBILITY." AND HE SAYS -- HE GOES ON. "THEY WANT HIM TO

4 REPORT THAT HE IS BEING MYSTERIOUSLY FOLLOWED. THIS IS TO

5 MAKE HIM APPEAR PARANOID AND THUS DESTROY HIS CREDIBILITY AS A

6 WITNESS."

7 AND MR. WHEATON SAYS HE HAS ACTUALLY USED THIS

8 TECHNIQUE. HE SAID, "IN CONCLUSION, MR. CLARKE HAS ASKED ME

9 TO RENDER AN OPINION ON THE FOLLOWING QUESTION: WAS ONE OF

10 THE PURPOSES OF THE ACTIONS DESCRIBED IN THE AMENDED COMPLAINT

11 TO INTIMIDATE MR. KNOWLTON TO TRY TO PREVENT HIM FROM

12 TESTIFYING FREELY, FULLY AND TRUTHFULLY?" AND MR. WHEATON

13 RESPONDS YES, "YES, IT WAS."

14 YOUR HONOR, IN CONCLUSION, I WOULD SUGGEST TO THE

15 COURT THAT THE DEFENDANTS HAVE PRESENTED NO ARGUMENT THAT

16 WOULD REBUT OUR POSITION THAT, IF IN FACT THERE IS AN OVERALL

17 CONSPIRACY, AND IF IN FACT THE TWO FEDERAL DEFENDANTS ARE

18 MEMBERS OF THAT CONSPIRACY, AND IF IN FACT THE SECTION 1985

19 VIOLATION WAS COMMITTED IN FURTHERANCE AND PURSUANT TO THAT

20 CONSPIRACY, THEY ARE LIABLE. ONE OF THE THINGS THAT I HAVEN'T

21 ADDRESSED YET IS THAT MR. -- THE DEFENDANTS ALLEGE THAT WE --

22 THAT THE PLAINTIFF ALLEGES THAT OUR CLAIM IS SOMEHOW BASED

23 UPON DEFENDANT MONROE'S TESTIMONY BEFORE THE SENATE BANKING

24 COMMITTEE. THAT IS SIMPLY NOT TRUE. THAT WAS OFFERED ONLY AS

25 AN OVERT ACT IN FURTHERANCE OF THE CONSPIRACY. OUR CLAIM IS




35

1 NOT BASED UPON THAT, AND WE BELIEVE THAT THERE'S -- IT WAS

2 CLEARLY -- THAT TESTIMONY CLEARLY CONTAINED FALSE STATEMENTS

3 AND OVERT ACTS IN FURTHERANCE OF THE CONSPIRACY.

4 THE COURT: ALL RIGHT.

5 MR. CLARKE: THANK YOU, YOUR HONOR.

6 THE COURT: THANK YOU, MR. CLARKE. THE GOVERNMENT.

7 MR. THOMAS: YOUR HONOR, PLAINTIFF'S COUNSEL HAS

8 DESCRIBED THIS CASE AS, QUOTE, "A CONSPIRACY TO HIDE THE

9 CIRCUMSTANCES OF MR. FOSTER'S DEATH." WELL, THAT BROAD

10 CONSPIRACY IS NOT THE TYPE OF CONSPIRACY THAT THE STATUTE IS

11 INTENDED TO PROTECT AGAINST. THE ISSUE HERE, OF COURSE, IS

12 THE 1985(2) CONSPIRACY, ALLEGED CONSPIRACY TO DETER SOMEBODY

13 FROM TESTIFYING BEFORE THE GRAND JURY. THAT'S WHAT MY

14 COMMENTS AND OUR MOTIONS ARE SPECIFICALLY ADDRESSED TO, AND

15 THERE IS SIMPLY NO CONSPIRACY, SUFFICIENT CONSPIRACY ALLEGED

16 HERE.

17 THE OVERT ACT THAT HE'S TALKING ABOUT AGAIN GOES TO

18 THIS BROADER CONSPIRACY THEORY, WHICH HAS BEEN SOUNDLY

19 REJECTED BY THE PARK POLICE, BY THE FIRST INDEPENDENT

20 PROSECUTOR, BY THE SECOND INDEPENDENT PROSECUTOR. AGAIN, THEY

21 FOCUS ON THIS BROADER ALLEGED CONSPIRACY, VAGUE CONSPIRACY,

22 WITHOUT ANY SUPPORT, BECAUSE OF THE DEFICIENCIES AT ISSUE

23 HERE.

24 THEY ALSO, OF COURSE, NOW FOCUS ON ACTIONS OR

25 INACTIONS BY MR. STARR. OBVIOUSLY, ALL OF THOSE EVENTS THAT




36

1 HE'S MOST RECENTLY CRITICIZING THE REPORT FOR OCCURRED AFTER

2 THE TESTIMONY OF THE PLAINTIFF HERE, SO PLAINLY, THOSE ARE NOT

3 SUPPORTIVE OF AN ATTEMPT TO SHOW SOME CONSPIRACY TO DETER HIM

4 FROM TESTIFYING.

5 THIS CASE IS FOUNDED UPON SORT OF SHEER SPECULATION,

6 INFERENCE UPON INFERENCE UPON INFERENCE, WHICH IS PRECISELY

7 THE TYPE OF CASE WHERE QUALIFIED IMMUNITY APPLIES, LACKING ANY

8 SPECIFIC ALLEGATIONS. THEY SIMPLY HAVE NOT ABROGATED ALL OF

9 OUR IMMUNITY HERE, EVEN IF THEY WERE TO STATE A CLAIM UNDER

10 THE STATUTE. WE SIMPLY DO NOT THINK THEY DO.

11 AGAIN, WITH EACH SPECIFIC QUESTION BY THE COURT

12 CONCERNING WHAT EVIDENCE DO YOU HAVE, THEY RELY SIMPLY ON THE

13 SEQUENCE OF EVENTS. PAGE 11 OF OUR MOTION TO DISMISS, WE CITE

14 SOME OF THE LAW THAT SUPPORTS THE PROPOSITION THAT A

15 CONSPIRACY CANNOT BE BASED SOLELY ON THE TIMING OF

16 CIRCUMSTANCES OR AN ENTIRE CLUSTER OF EVENTS. IN OTHER WORDS,

17 SIMPLY RELYING ON A SEQUENCE OF EVENTS IS INSUFFICIENT UNDER

18 THIS STATUTE TO SHOW SOME CONSPIRACY, AND CERTAINLY, YOU CAN'T

19 SHOW AN AGREEMENT, WHETHER EXPLICIT OR PRESUMED, HOWEVER THEY

20 CHARACTERIZE IT.

21 SO WE JUST THINK THERE'S INSUFFICIENT EVIDENCE

22 EITHER TO STATE A CLAIM OR TO ABROGATE THE QUALIFIED IMMUNITY.

23 IN SUM, WE THINK, ONCE THE COURT HAS AN OPPORTUNITY TO SORT OF

24 VIEW THIS ENTIRE CASE AND THE ALLEGATIONS, AGAIN, IT'S SHEER

25 SPECULATION, INFERENCE UPON INFERENCE, SURROUNDED WITH




37

1 ALLEGATIONS OF 26 UNNAMED INDIVIDUALS WHO APPARENTLY FOLLOWED

2 OR PURSUED HIM, ET CETERA, BUT THERE'S NOTHING HERE TO LINK

3 THE TWO REMAINING FEDERAL DEFENDANTS, MR. MONROE AND

4 MR. BRANSFORD, AND CERTAINLY NOTHING THAT WOULD SUPPORT

5 SETTING ASIDE QUALIFIED IMMUNITY HERE.

6 THE COURT: ALL RIGHT. THANK YOU.

7 MS. KOHN: GOOD AFTERNOON, KAREN KOHN FOR DEFENDANT

8 AYMAN ALOURI. THE DEFENDANT HAS FILED A MOTION TO DISMISS OR,

9 IN THE ALTERNATIVE, A MOTION FOR SUMMARY JUDGMENT. ALTHOUGH

10 THE MOTION BEARS BOTH TITLES, IT SHOULD REALLY BE TREATED AS

11 ONE FOR SUMMARY JUDGMENT, BECAUSE THE DEFENDANT HAS SUBMITTED

12 AN AFFIDAVIT AND EXHIBITS IN HIS BEHALF.

13 RULE 56 STATES THAT SUMMARY JUDGMENT IS PROPERLY

14 GRANTED WHEN THERE ARE NO MATERIAL FACTS IN DISPUTE AND THE

15 MOVANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW. THE

16 DEFENDANT HAS SUBMITTED AFFIDAVITS AND EXHIBITS WHICH SHOW

17 THAT THERE IS NO GENUINE DISPUTE OF MATERIAL FACTS. IT'S NOW

18 THE BURDEN OF THE NON-MOVING PARTY TO SHOW THAT THERE ARE,

19 WHICH THE NON-MOVING PARTY HAS FAILED TO DO.

20 THE COMPLAINT SETS FORTH THREE RECOGNIZABLE CLAIMS

21 AGAINST DR. ALOURI, ALL OF WHICH FAIL TO STATE A CLAIM UPON

22 WHICH RELIEF CAN BE GRANTED. BUT BEFORE I GO INTO THESE

23 ARGUMENTS, I WOULD LIKE TO MAKE A BRIEF STATEMENT ABOUT

24 DR. AYMAN ALOURI, BECAUSE I BELIEVE HE HAS BEEN MISREPRESENTED

25 IN THE PLAINTIFF'S BRIEF. DR. ALOURI WAS BORN IN JORDAN AND




38

1 IS A U.S. CITIZEN WHO HAS RESIDED HERE FOR THE PAST EIGHTEEN

2 YEARS. HE'S ESTABLISHED HIMSELF IN THE COMMUNITY. HE HAS A

3 DOCTORATE IN PHILOSOPHY FROM MANCHESTER COLLEGE IN MANCHESTER,

4 ENGLAND AND LIVES WITH HIS FAMILY IN VIENNA, VIRGINIA. IT

5 SHOULD NOT GO UNMENTIONED THAT DR. ALOURI'S LIFE HAS BEEN

6 DISRUPTED BY THIS LAWSUIT.

7 THE THREE RECOGNIZABLE CLAIMS AGAINST DR. ALOURI ARE

8 A CONSPIRACY TO OBSTRUCT JUSTICE UNDER 42 U.S.C.A SECTIONS

9 1985(2) AND 86; CIVIL CONSPIRACY; AND INTENTIONAL INFLICTION

10 OF EMOTIONAL DISTRESS.

11 PLAINTIFF HAS PRESENTED NO EVIDENCE TO SUPPORT A

12 CLAIM UNDER SECTION 1985(2), CONSPIRACY TO OBSTRUCT JUSTICE,

13 AND BY FAILING TO STATE A CLAIM UNDER SECTION 1985(2), THE

14 PLAINTIFF'S 1986 CLAIM DOES NOT SURVIVE.

15 AS ARGUED IN THE GOVERNMENT'S BRIEF, THE PLAINTIFF'S

16 CLAIM IS LIMITED TO THE FIRST CLAUSE OF 42 U.S.C SECTION

17 1985(2), WHICH HAS BEEN REFERRED TO IN OUR BRIEF AS WELL. THE

18 STATUTE PROHIBITS "TWO OR MORE PERSONS FROM CONSPIRING TO

19 DETER BY FORCE, INTIMIDATION OR THREAT ANY PARTY OR WITNESS IN

20 ANY COURT OF THE UNITED STATES FROM ATTENDING SUCH COURT OR

21 FROM TESTIFYING TO ANY MATTER PENDING THEREIN."

22 THE CASES OF THE NINTH CIRCUIT AND THE SECOND

23 CIRCUIT, PORTMAN VS. SANTA CLARA AND CHAHAL VS. PAINE WEBBER,

24 DEFINE THE ELEMENTS NECESSARY TO PROVE SUCH A CONSPIRACY.

25 THESE ARE: CONSPIRACY BY TWO OR MORE PERSONS TO INJURE A




39

1 PARTY OR WITNESS IN HIS OR HER PERSONAL PROPERTY; TO DETER A

2 PARTY, WITNESS OR JUROR FROM ATTENDING OR TESTIFYING IN ANY

3 MATTER PENDING IN ANY COURT OF THE UNITED STATES; OR TO

4 RETALIATE AGAINST SUCH INDIVIDUAL FOR SO TESTIFYING, WHICH

5 RESULTS IN AN INJURY TO THE PLAINTIFF.

6 TO STATE THE CAUSE OF ACTION, IT'S NOT ENOUGH SIMPLY

7 TO SHOW A CONSPIRACY. THE CONSPIRACY MUST BE ONE THAT HAS THE

8 REQUISITE STATUTORY PURPOSE, WHICH IS TO CONSPIRE BY FORCE,

9 INTIMIDATION OR THREAT.

10 AND THE PLAINTIFF MUST SHOW A MEETING OF THE MINDS.

11 THIS IS CITED IN THE TENTH CIRCUIT BROWN VS. CHAFFEE AND

12 BREVER VS. ROCKWELL INTERNATIONAL CORP. PLAINTIFF HAS

13 PRESENTED NO EVIDENCE TO ESTABLISH A MEETING OF THE MINDS OR

14 AN AGREEMENT BETWEEN DR. ALOURI AND ANY OF THE NAMED

15 DEFENDANTS.

16 PLAINTIFF HAS ALSO PROVIDED NO MOTIVE AS TO WHY

17 DR. ALOURI WOULD CONSPIRE WITH ANY OF THE INDIVIDUAL

18 DEFENDANTS. IN FACT, COMMON SENSE ALONE SUGGESTS THAT

19 DR. ALOURI, WHO'S A UNITED STATES CITIZEN, HAS BEEN LIVING IN

20 THIS COUNTRY FOR EIGHTEEN YEARS, WOULD HAVE NO MOTIVATION TO

21 CONSPIRE TO COMMIT A MURDER AT A TIME WHEN HE WAS STUDYING

22 ABROAD AND OUT OF THE COUNTRY OR TO PREVENT GRAND JURY

23 TESTIMONY THAT HE WASN'T EVEN AWARE WAS BEING GIVEN.

24 IN ADDITION, PLAINTIFF HAS ALLEGED THAT THE BASIS

25 FOR HIS CONSPIRACY --




40

1 THE COURT: WHY DON'T YOU BRING THE MICROPHONE A

2 LITTLE CLOSER TO YOU.

3 MS. KOHN: ACTUALLY, IF I COULD SIP SOME WATER, TOO.

4 -- ARE GLARES, STARES AND ADJUSTING A REARVIEW

5 MIRROR, AND DRIVING AROUND WASHINGTON CIRCLE. PLAINTIFF HAS

6 NOT SET FORTH THE ELEMENTS OF A CONSPIRACY. GLARES AND STARES

7 DO NOT MAKE OUT SUCH FORCE OR INTIMIDATION.

8 PLAINTIFF HAS ALSO FAILED TO PROVIDE ANY CONNECTION

9 BETWEEN DR. ALOURI AND ANY OF THE OTHER DEFENDANTS. THERE'S

10 NO EVIDENCE OF A CONVERSATION OR AGREEMENT OR OBJECTIVE AMONG

11 THE PARTIES. THE MERE SEQUENTIAL ORDER IN WHICH THE

12 PLAINTIFF'S COMPLAINT ALLEGES DOES NOT DEMONSTRATE A MEETING

13 OF THE MINDS.

14 DR. ALOURI HAS PRESENTED SIGNIFICANT EVIDENCE TO

15 DEFEAT ANY OF THESE CLAIMS. THE FIRST IS THE REPORT OF ROBERT

16 FISKE, BY THE INDEPENDENT COUNSEL, THAT VINCENT FOSTER

17 COMMITTED SUICIDE IN FORT MARCY PARK ON JULY 20TH OF 1993.

18 THE PLAINTIFF HAS FAILED TO SUBMIT ANY CONTRARY EVIDENCE TO

19 PROVE A CONSPIRACY FOR MURDER. THEREFORE, THE UNDERLYING

20 PREMISE ON WHICH THE PLAINTIFF'S COMPLAINT RESTS IS WITHOUT

21 MERIT.

22 THE DEFENDANT HAS ALSO SUBMITTED A PASSPORT AND

23 SCHOOL REGISTRAR LETTER SHOWING THAT THE DEFENDANT WAS OUT OF

24 THE COUNTRY AT THE TIME OF VINCENT FOSTER'S SUICIDE.

25 THEREFORE, HE COULD NOT HAVE ENGAGED IN ANY KIND OF CONSPIRACY




41

1 REGARDING FOSTER'S DEATH. DEFENDANT'S AFFIDAVIT STATES THAT

2 HE DID NOT ENGAGE IN NOR WAS HE AWARE OF ANY CONSPIRACY TO

3 OBSTRUCT JUSTICE. THE AFFIDAVIT ALSO STATES THAT DR. ALOURI

4 WAS NOT AWARE OF ANY GRAND JURY SUBPOENA OR ANY TESTIMONY BY

5 THE PLAINTIFF BEFORE THE GRAND JURY.

6 THE COMPLAINT STATES THAT DR. ALOURI WAS DRIVING A

7 WHITE HONDA ON THE NIGHT OR THE AFTERNOON OF OCTOBER 27, 1995.

8 DR. ALOURI'S AFFIDAVIT STATES THAT HE NEVER OWNED A WHITE

9 HONDA. HIS AFFIDAVIT STATES THAT HE ONLY OWNED ONE VEHICLE

10 SINCE THAT TIME, WHICH IS A DARK BLUE 1987 HONDA ACCORD LX

11 SINCE MAY OF 1995. DEFENDANT HAS ALSO SUBMITTED A CERTIFICATE

12 OF TITLE, WHICH SHOWS THAT HE ONLY OWNED THIS ONE VEHICLE, HE

13 NEVER OWNED A WHITE HONDA.

14 THE COURT: OCTOBER -- THE DATE WAS OCTOBER 27TH?

15 MS. KOHN: YES, SINCE MAY OF 1995 --

16 THE COURT: I TAKE IT DR. ALOURI WAS HERE. WAS HE

17 HERE IN THE UNITED STATES?

18 MS. KOHN: YES, HE WAS IN THE COUNTRY AT THAT TIME.

19 IN HIS OPPOSITION, PLAINTIFF PROVIDED ELABORATE

20 DIAGRAMS AND MAPS WHICH ARE ARTICULATELY DRAWN, BUT WHICH

21 DON'T PROVE ANY KIND OF FORCE, INTIMIDATION OR THREAT.

22 DEFENDANT WOULD STIPULATE THAT THESE DOCUMENTS DO SHOW VARIOUS

23 NEIGHBORHOODS AND STREETS IN THE GREATER METRO D.C. AREA.

24 THE PLAINTIFF HAS FILED AN AFFIDAVIT, THOUGH, WHICH

25 STATES THAT HE HAD NOTED THREE DIGITS OF A LICENSE PLATE, AND




42

1 THAT MR. AMBROSE EVANS-PRITCHARD TRACES THIS TO DR. ALOURI.

2 HOWEVER, THIS AFFIDAVIT PROVIDES NO EVIDENCE OF A MEETING OF

3 THE MINDS OR CONSPIRACY BY FORCE, INTIMIDATION OR THREAT.

4 THE DEFENDANT HAS ALSO NOT SUBMITTED AN AFFIDAVIT

5 FROM AMBROSE EVANS-PRITCHARD VERIFYING ANY KIND OF A TRACE

6 THAT WOULD LINK THE VEHICLE. HE'S ALSO SUBMITTED NO EVIDENCE

7 THAT DR. ALOURI ACTUALLY EVER OWNED A WHITE HONDA.

8 THE PLAINTIFF ALSO HAS RELIED ON A NEWSPAPER

9 ARTICLE --

10 THE COURT: MAYBE YOU'VE SAID THIS, BUT WHAT ABOUT

11 THE PLATE NUMBER?

12 MS. KOHN: THE PLATE NUMBER WAS THREE DIGITS --

13 THE COURT: THE TAG?

14 MS. KOHN: I'M SORRY?

15 THE COURT: THE TAG?

16 MS. KOHN: THE TAG NUMBER?

17 THE COURT: DIDN'T THE PLAINTIFF IDENTIFY A TAG?

18 MS. KOHN: I DON'T KNOW. HE SAYS HE IDENTIFIED IN

19 HIS AFFIDAVIT THREE DIGITS, BUT THE THREE DIGITS WERE NOT

20 PROVIDED IN THE AFFIDAVIT, SO I HAVE NO IDEA WHAT THE THREE

21 DIGITS WERE OR ANY PROOF. I DON'T KNOW THEY'RE EVEN LINKED TO

22 DR. ALOURI'S VEHICLE.

23 THE PLAINTIFF ALSO RELIES ON A NEWSPAPER ARTICLE,

24 WHICH I ASSUME WAS WRITTEN BY CHRISTOPHER RUDDY, STATING THAT

25 DR. ALOURI SWITCHED THE LICENSE PLATES. THIS NEWSPAPER




43

1 ARTICLE AGAIN DOES NOT PROVE ANY MEETING OF THE MINDS OR A

2 CONSPIRACY BY FORCE, INTIMIDATION OR THREAT. IT ALSO PROVIDES

3 NO PROOF OF A SWITCH OF A LICENSE PLATE OR AN OWNERSHIP BY

4 DR. ALOURI OF A WHITE HONDA, AS ALLEGED IN THE PLAINTIFF'S

5 COMPLAINT.

6 THE GOVERNMENT HAS ALSO ARGUED IN ITS BRIEF AND IN

7 THE ARGUMENT TODAY THAT THE INDIVIDUAL DEFENDANTS SHOULD BE

8 DISMISSED FROM THE CASE, AND IN FACT IF THEY ARE, THIS WILL

9 LEAVE DR. ALOURI ALONE TO BE INVOLVED IN IT, WHICH WOULD NOT

10 AMOUNT TO THE ELEMENTS OF A CONSPIRACY, WHICH ARE TWO OR MORE

11 INDIVIDUALS.

12 IN ADDITION, THE GOVERNMENT HAS ALSO STATED THAT ONE

13 OF THE PURPOSES OF QUALIFIED IMMUNITY IS TO DISMISS

14 INSUBSTANTIAL LAWSUITS BEFORE DISCOVERY AND TRIAL. THESE

15 PRINCIPLES WERE SET FORTH IN HOBSON VS. WILSON AND ALSO THE

16 SUPREME COURT CASE HARLOW VS. FITZGERALD. THE SAME PRINCIPLE

17 SHOULD APPLY TO THE PRIVATE DEFENDANT. THE COURT SHOULD NOT

18 ENTERTAIN A SUIT THAT'S ONLY BASED ON CONCLUSORY ALLEGATIONS

19 AND INFERENCES. THE PLAINTIFF HAS HAD THE OPPORTUNITY TO SET

20 FORTH EVIDENCE TO COUNTER DEFENDANT'S BRIEF AND HAS FAILED TO

21 DO SO.

22 THE SECOND CLAIM STATED IN ITS COMPLAINT, PLAINTIFF

23 HAS ALSO STATED A CLAIM OF CIVIL CONSPIRACY. UNDER THE LAW OF

24 HALBERSTAM VS. WELCH, THE D.C. CIRCUIT HAS SAID THAT THERE IS

25 NO RECOGNIZED INDEPENDENT TORT FOR CIVIL CONSPIRACY, THE




44

1 PLAINTIFF MUST PLEAD AN UNDERLYING TORT ACTION. THE PLAINTIFF

2 HAS FAILED TO PLEAD THIS IN ITS COMPLAINT.

3 IN THE EVENT THAT THE PLAINTIFF HAS PLED, THOUGH, A

4 CIVIL CONSPIRACY, IT CAN ONLY BE -- IT MUST BE A CIVIL

5 CONSPIRACY FOR INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.

6 IN ORDER TO DO THIS, THE PLAINTIFF MUST PROVE, FOR A

7 CIVIL CONSPIRACY, AN AGREEMENT BETWEEN TWO OR MORE PERSONS TO

8 PARTICIPATE IN AN UNLAWFUL ACT OR A LAWFUL ACT IN AN UNLAWFUL

9 MANNER; AN INJURY CAUSED BY AN UNLAWFUL OVERT ACT PERFORMED BY

10 ONE OF THE PARTIES TO THE AGREEMENT; AND THE OVERT ACT DONE

11 PURSUANT TO OR IN FURTHERANCE OF A COMMON SCHEME. AS SET

12 FORTH EARLIER IN THIS ARGUMENT, THE PLAINTIFF HAS NOT

13 PRESENTED ANY FACTS TO DEMONSTRATE A MEETING OF THE MINDS OR

14 AN AGREEMENT BETWEEN THE PARTIES.

15 AS FOR THE INTENTIONAL INFLICTION OF EMOTIONAL

16 DISTRESS, THE PLAINTIFF MUST SHOW, ACCORDING TO ABOUREZK VS.

17 NEW YORK AIRLINES, THAT THE CONDUCT IS SO OUTRAGEOUS IN

18 CHARACTER AND SO EXTREME IN DEGREE AS TO GO BEYOND ALL

19 POSSIBLE BOUNDS OF DECENCY AND TO BE REGARDED AS ATROCIOUS AND

20 UTTERLY INTOLERABLE IN A CIVILIZED COMMUNITY. PLAINTIFF HAS

21 FAILED TO PROVE SUCH CONDUCT.

22 PLAINTIFF ALLEGES THAT THE DEFENDANT, QUOTE, "STARED

23 IN HIS DIRECTION AND GLARED AT HIM." HE ALLEGES THAT

24 DR. ALOURI "DROVE AWAY AND SHOOK HIS REARVIEW MIRROR." WHAT

25 PLAINTIFF OBSERVED ARE NOT ACTIONS THAT SHOCK THE CONSCIENCE,




45

1 BUT ARE EVERYDAY OCCURRENCES IN A BUSY METROPOLITAN AREA.

2 THE PLAINTIFF'S COMPLAINTS SHOULD BE DISMISSED

3 BECAUSE THE ALLEGATIONS ARE CURSORY AND DEVOID OF DETAIL.

4 DEFENDANT ALOURI'S AFFIDAVIT STATES THAT HE DID NOT ENGAGE NOR

5 WAS HE AWARE OF ANY CONSPIRACY TO CAUSE INTENTIONAL INFLICTION

6 OF EMOTIONAL DISTRESS.

7 PLAINTIFF AGAIN RELIES ON THE MAPS AND DIAGRAMS,

8 WHICH ARE NOT EVIDENCE OF OUTRAGEOUS CONDUCT. HE RELIES ON

9 PSYCHOLOGICAL REPORTS, TESTS AND A POLYGRAPH IN AN ATTEMPT TO

10 PROVE HIS CLAIM. AGAIN, THESE REPORTS DO NOT PROVE ANY KIND

11 OF ATROCIOUS BEHAVIOR OR CONSPIRACY. IN ADDITION, THE

12 POLYGRAPH IS NOT RELIABLE OR ADMISSIBLE IN EVIDENCE.

13 PLAINTIFF HAS SUBMITTED THE AFFIDAVIT OF HIS

14 GIRLFRIEND, WHO ALSO MAKES ACCUSATIONS AND ALLEGATIONS, BUT

15 NONE PROVE OUTRAGEOUS OR EXTREME CONDUCT OR A MEETING OF THE

16 MINDS TO CAUSE SUCH OUTRAGEOUS OR EXTREME CONDUCT.

17 THEREFORE, AS A MATTER OF LAW, PLAINTIFF'S

18 COMPLAINTS SHOULD FAIL. THANK YOU.

19 THE COURT: ALL RIGHT. THANK YOU. MR. CLARKE.

20 YOUR HONOR, FIRST, AS TO THE FACTUAL ALLEGATIONS

21 AGAINST DEFENDANT ALOURI, DEFENDANT ALOURI AND THE OTHER

22 GENTLEMAN THAT OCCUPIED HIS CAR, THE PASSENGER IN THE CAR,

23 WERE THE 16TH AND 17TH MEN TO HARASS MR. KNOWLTON IN THIS WAY.

24 MR. KNOWLTON HAS SUBMITTED IN HIS AFFIDAVIT THAT THE REPORT

25 THAT HE PURCHASED WAS -- IT IS ACCURATE.




46

1 AND IN THAT REPORT, AN EXCERPT FROM MR. RUDDY'S

2 ARTICLE SUMMARIZES WHAT DR. ALOURI'S ACTIVITIES WERE THAT DAY,

3 AND WHAT MR. RUDDY WRITES IS THAT, "IN ONE WHITE HONDA WITH

4 VIRGINIA TAGS TWO MARKED MEN -- TWO DARK MEN WITH MOUSTACHES

5 APPEARED TO MAKE NO BONES ABOUT THEIR SURVEILLANCE. THEY

6 FIRST CAUGHT OUR ATTENTION AS WE CROSSED THE INTERSECTION AND

7 BOTH GAVE US A MENACING STARE. THE CAR ENTERED A TRAFFIC

8 CIRCLE AND, INSTEAD OF CARRYING ON, CIRCLED BACK AND CAME

9 ALONGSIDE US STOPPING IN THE MIDDLE OF THE ROAD JUST YARDS IN

10 FRONT OF US. THE OCCUPANTS BEGAN TO MANIPULATE THEIR MIRRORS

11 TO WATCH US ALONGSIDE THE SIDEWALK."

12 AS PLAINTIFF AND MR. RUDDY APPROACHED THAT VEHICLE

13 AND JOTTED DOWN THE LICENSE PLATE NUMBER -- JUST AFTER THEY

14 JOTTED DOWN THE LICENSE PLATE NUMBER, DR. ALOURI SPED THROUGH

15 A RED LIGHT.

16 YOUR HONOR, THERE WAS ANOTHER NEWSPAPER ARTICLE THAT

17 WAS -- APPEARED IN THE LONDON SUNDAY TELEGRAPH ON NOVEMBER

18 5TH, 1995. WE'VE ALSO SUBMITTED A SEPARATE AFFIDAVIT BY

19 PLAINTIFF STATING THAT THIS EXCERPT THAT I'M GOING TO READ TO

20 THE COURT IS ACCURATE. THIS IS BY AMBROSE EVANS-PRITCHARD,

21 AND MR. PRITCHARD WRITES, "JUST TO BE CERTAIN WE FOUND THE

22 RIGHT PEOPLE, WE PAID A MIDNIGHT VISIT TO ONE OF THE OWNERS AT

23 HIS RENTED HOUSE NEAR LANGLEY. TWO ARABS CAME TO THE DOOR AND

24 RUDDY RECOGNIZED THEM INSTANTLY AS THE DRIVER AND THE

25 PASSENGER OF A WHITE HONDA THAT HAD TRAILED THEM. KNOWLTON




47

1 SAID HE RECOGNIZED THE DRIVER AT ONCE. TO OUR SURPRISE, THE

2 LICENSE PLATES WERE CLEARLY DISPLAYED IN THE PARKING SPOT IN

3 FRONT OF THE HOUSE, BUT THEY WERE ATTACHED TO A DIFFERENT

4 CAR."

5 AND THE ARTICLE GOES ON, REFERRING TO DR. ALOURI,

6 "HE DENIED ANY INVOLVEMENT IN THE SURVEILLANCE OF KNOWLTON,

7 BUT PALED WHEN WE TOLD HIM WE HAD PHOTOS OF THE GOON SQUAD.

8 AYMAN HAD THE AIR OF A MAN WHO HAD BEEN CONTACTED TO DO SOME

9 LOW-LEVEL HARASSMENT AND NOW FOUND HIMSELF WAY OUT OF HIS

10 DEPTH."

11 I ALSO ASK THE COURT TO NOTE DR. ALOURI'S AFFIDAVIT

12 THAT HE FILED IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGMENT.

13 HE DOES NOT SPECIFICALLY DENY THE ALLEGATIONS IN THE

14 COMPLAINT. ALL HE SAYS IS HE WAS NOT AWARE OF THE GRAND JURY

15 SUBPOENA, HE WAS NOT AWARE OF TESTIMONY GIVEN BY PLAINTIFF, HE

16 WAS NOT AWARE OF THE CONSPIRACY TO OBSTRUCT JUSTICE. AND THE

17 CLOSEST HE COMES TO DENYING THE ALLEGATIONS IN THE COMPLAINT

18 IS, HE SAYS, QUOTE, "I AM NOT AWARE OF NOR HAVE I EVER ENGAGED

19 IN ANY ACTS TO CAUSE THE PLAINTIFF EMOTIONAL DISTRESS."

20 LASTLY, AS TO THE FACTUAL ALLEGATIONS IN THE

21 COMPLAINT OF DR. ALOURI, WE'VE ALSO SUBMITTED A PORTION OF

22 AMBROSE EVANS-PRITCHARD'S BOOK.

23 THE COURT: A PORTION OF WHOSE BOOK?

24 MR. CLARKE: AMBROSE EVANS-PRITCHARD. HE'S THE

25 AUTHOR AND FORMER BUREAU CHIEF OF THE LONDON --




48

1 THE COURT: WHAT DOES THAT HAVE TO DO WITH IT?

2 MR. CLARKE: IN THIS PORTION I'M GETTING READY TO

3 READ, MR. PRITCHARD SETS FORTH A LITTLE BIT MORE SPECIFICALLY

4 WHAT DR. ALOURI'S REACTION WAS WHEN HE WAS CONFRONTED ON

5 NOVEMBER 1, 1995 AT HIS DOORSTEP.

6 THE COURT: WHY WOULD I EVEN THINK OR LOOK AT THAT

7 IF I HAVE MR. KNOWLTON HERE? WAS HE THERE AT THE TIME?

8 MR. CLARKE: YES, YOUR HONOR, YES, YOUR HONOR. ALL

9 I WAS GOING TO SUGGEST, THAT IT WOULD BE PROPER FOR THE

10 COURT -- MR. KNOWLTON WAS FURTHER BACK, DID NOT ACTUALLY SPEAK

11 WITH DR. ALOURI. MR. PRITCHARD DID. AND THIS IS WHAT HE

12 SAID.

13 THE COURT: BUT THIS IS IN HIS BOOK?

14 MR. CLARKE: THIS IS IN HIS BOOK.

15 THE COURT: THAT'S HEARSAY, ISN'T IT?

16 MR. CLARKE: NO, YOUR HONOR.

17 THE COURT: IT'S NOT HEARSAY?

18 MR. CLARKE: NO, IT'S NOT OFFERED TO PROVE THE TRUTH

19 OF THE MATTER ASSERTED. THERE'S NOTHING ASSERTED IN HERE.

20 IT'S OFFERED TO PROVE SIMPLY WHAT DR. ALOURI'S REACTION WAS

21 WHEN HE WAS TOLD THAT THIS HARASSMENT HAD TO DO WITH THE

22 VINCENT FOSTER CASE.

23 THE COURT: AREN'T YOU OFFERING IT TO PROVE WHAT HIS

24 REACTION IS OR WAS AT THE TIME?

25 MS. KOHN: YES.




49

1 THE COURT: ISN'T THAT THE TRUTH OF WHAT IS BEING

2 ASSERTED IN THERE?

3 MR. CLARKE: NO.

4 THE COURT: IT ISN'T?

5 MR. CLARKE: I DON'T THINK SO, YOUR HONOR. WHAT I

6 WAS GOING TO SAY WAS, THE PORTION I WAS GOING TO READ -- AND

7 THEN I'LL LEAVE IT, OF COURSE, TO THE COURT -- THE PORTION IS,

8 "WE EXPLAINED THAT SOMEBODY USING HIS LICENSE TAGS HAD BEEN

9 CONDUCTING A HARASSMENT OPERATION RELATED TO THE DEATH OF

10 VINCENT FOSTER." AND THIS IS A QUOTE -- THIS IS WHAT

11 DR. ALOURI SAID -- "VINCENT FOSTER? IT HAS TO DO WITH THE

12 FOSTER CASE, HE SPUTTERED, TURNING ASH WHITE."

13 NOW, THAT IS NOT THE STATEMENT OF SOMEONE WHO

14 DOESN'T HAVE ANY IDEA OF WHAT THESE ALLEGATIONS ARE. THAT IS

15 THE STATEMENT, I WOULD SUGGEST TO YOUR HONOR, TO THE COURT,

16 THAT'S THE STATEMENT OF SOMEBODY WHO KNOWS EXACTLY WHAT IT WAS

17 THAT THEY WERE REFERRING TO WHEN THEY WERE TALKING ABOUT THE

18 INTIMIDATION. AND FOR DR. ALOURI TO SAY HE COULD NOT HAVE

19 POSSIBLY BEEN DRIVING A CAR, A WHITE HONDA, IS JUST -- IS NOT

20 LOGICAL. I MEAN, WE'VE KNOWN SINCE AT LEAST AS OF NOVEMBER 5,

21 1995, THAT HE SWITCHED THE PLATES.

22 THE COURT: HOW HAVE YOU KNOWN SINCE THEN THAT HE

23 SWITCHED THE PLATES?

24 MR. CLARKE: BECAUSE WHEN MR. KNOWLTON PULLED UP TO

25 THE RENTED HOUSE IN LANGLEY, VIRGINIA --




50

1 THE COURT: AND WHAT WAS THE PLATE?

2 MR. CLARKE: THE PLATE NUMBER?

3 THE COURT: YEAH.

4 MR. CLARKE: THE PLATE NUMBER IS THE SAME AS I --

5 THE COURT: IS THAT STATED IN THE RECORD, THE PLATE

6 NUMBER?

7 MR. CLARKE: BY THE DEFENDANT IT IS, IN HIS

8 AFFIDAVIT.

9 THE COURT: WELL, WHAT PLATE NUMBER IS STATED BY THE

10 DEFENDANT, HIS PLATE NUMBER?

11 MR. CLARKE: YES.

12 THE COURT: WHAT WAS THE PLATE NUMBER THAT

13 MR. KNOWLTON SAW?

14 MR. CLARKE: IT WAS THE SAME PLATE NUMBER AS IS

15 STATED IN THE DEFENDANT'S AFFIDAVIT.

16 THE COURT: AND IS THAT STATED IN MR. KNOWLTON'S

17 AFFIDAVIT OR ANYTHING?

18 MR. CLARKE: NO, YOUR HONOR, BUT WHAT IS STATED IS

19 THAT THEY TRACED THE LICENSE PLATE NUMBER, AND THEY CAME AND

20 THERE WAS DR. ALOURI. I MEAN, THAT IS -- THAT IS SWORN TO IN

21 THE AFFIDAVIT. BUT THE ACTUAL USE OF THE PLATE NUMBER BY THE

22 PLAINTIFF IS NOT USED, BUT IT IS BY THE DEFENDANT.

23 YOUR HONOR, AS TO THE LEGAL ARGUMENTS MADE BY

24 DEFENDANT ALOURI, GOING BACK TO THE BREVER CASE, THAT CASE

25 HELD THAT EVEN THOUGH THE PETITIONER HAD NO KNOWLEDGE OF AN




51

1 AGREEMENT BETWEEN THE ALLEGED CONSPIRATORS, THE SEQUENCE OF

2 EVENTS ALLEGED WERE SUFFICIENT TO ALLOW A JURY TO INFER FROM

3 THE CIRCUMSTANCE THAT THE CONSPIRATORS HAD A MEETING OF THE

4 MINDS.

5 ALSO IN THE BREVER CASE, THE COURT NOTED THAT,

6 QUOTE, "THE NATURE OF CONSPIRACIES OFTEN MAKES IT IMPOSSIBLE

7 TO PROVIDE PLEADINGS OF" --

8 THE COURT: CAN YOU JUST HOLD BACK FOR ME,

9 MR. CLARKE. WOULD THE REPORTER LIKE A BREAK?

10 THE REPORTER: IF THERE'S MORE, JUDGE --

11 THE COURT: I'M SURE THERE'S MORE. WE'LL TAKE A

12 BRIEF RECESS.

13 (3:12 RECESS 3:20)

14 THE COURT: ALL RIGHT, MR. CLARKE, SORRY TO

15 INTERRUPT YOU, BUT I DO WANT TO KEEP MY REPORTER. HE'S VERY

16 GOOD.

17 MR. CLARKE: THAT'S ALL RIGHT. I WAS JUST

18 DISCUSSING SOME PORTIONS OF OUR BRIEF, THAT WE CITED THE LAW

19 OF CONSPIRACY AND THE ALLEGATION OF CONSPIRACY WITH THE

20 REQUISITE SPECIFICITY.

21 THE BREVER CASE, YOUR HONOR, CITES A U.S. SUPREME

22 COURT CASE WHICH STATES -- AND I'M QUOTING -- "EVEN THOUGH THE

23 PETITIONER HAD NO KNOWLEDGE OF THE AGREEMENT BETWEEN THE

24 ALLEGED CONSPIRATORS, THE SEQUENCE OF EVENTS ALLEGED WERE

25 SUFFICIENT TO ALLOW A JURY TO INFER FROM THE CIRCUMSTANCES




52

1 THAT THE CONSPIRATORS HAD A MEETING OF THE MINDS."

2 ALSO IN THE BREVER CASE, YOUR HONOR, THE COURT IN

3 THAT CASE CITES WRIGHT MILLER AND SAYS THAT "THE PLEADER

4 SHOULD BE ALLOWED TO RESORT TO THE DISCOVERY PROCESS AND NOT

5 BE SUBJECT TO A DISMISSAL OF HIS COMPLAINT. THE NATURE OF

6 CONSPIRACIES OFTEN MAKES IT IMPOSSIBLE TO PROVIDE DETAILS AT

7 THE PLEADING STAGE."

8 FURTHER, YOUR HONOR, IN THIS JURISDICTION, IN THE

9 DOE V. U.S. DEPARTMENT OF JUSTICE CASE, THE COURT SAID, QUOTE,

10 "IN PARTICULAR, A COMPLAINT SHOULD NOT BE DISMISSED FOR

11 FAILURE TO STATE A CLAIM, UNLESS IT APPEARS BEYOND A DOUBT

12 THAT THE PLAINTIFF CAN PROVE NO SET OF FACTS IN SUPPORT OF HIS

13 OR HER CLAIM WHICH WOULD ENTITLE HIM OR HER TO RELIEF."

14 AND, YOUR HONOR, THAT CASE WAS ALSO FOLLOWED IN

15 FLUDD VS. UNITED STATES SECRET SERVICE, WHEREIN THE CASE CITED

16 A SUPREME COURT CASE, WHICH STATED, "IT IS AXIOMATIC THAT A

17 COMPLAINT SHOULD NOT BE DISMISSED UNLESS IT APPEARS BEYOND

18 DOUBT THAT THE PLAINTIFF CAN PROVE NO SET OF FACTS IN SUPPORT

19 OF HIS CLAIM WHICH WOULD ENTITLE HIM TO RELIEF."

20 AND, YOUR HONOR, THE ONLY THING I HAVE TO ADD IS

21 THAT, ON BEHALF OF DEFENDANT ALOURI, COUNSEL SAID THAT WE

22 CALLED MR. FOSTER'S DEATH A MURDER. AGAIN, WE HAVE NEVER

23 ALLEGED THAT, NOR DO WE ALLEGE THAT THAT IS -- THAT THAT ISSUE

24 IS BEFORE THE COURT IN OUR CASE. AGAIN, THE ONLY THING THAT

25 IS RELEVANT ON THAT ISSUE IS WHETHER OR NOT THERE'S AN OVERALL




53

1 CONSPIRACY, AND WHETHER OR NOT THIS 42 U.S.C. VIOLATION WAS

2 COMMITTED IN FURTHERANCE OF THE CONSPIRACY.

3 AND THE DEFENDANT ALOURI'S COUNSEL ALSO ARGUED THAT

4 THERE IS NO UNDERLYING TORT ACTION CLAIM ALLEGED UPON WHICH

5 THE CONSPIRACY LIABILITY COULD BE BASED. WE THINK THAT THAT

6 IS NOT CORRECT, ALSO, BECAUSE NOT ONLY DO WE HAVE THE 42

7 U.S.C. VIOLATION, BUT WE ALSO HAVE PLEADED INTENTIONAL

8 INFLICTION OF EMOTIONAL DISTRESS. THANK YOU.

9 THE COURT: ALL RIGHT, THANK YOU, MR. CLARKE.

10 MS. KOHN.

11 MS. KOHN: ACCORDING TO THE PLAINTIFF, THE AFFIDAVIT

12 SUBMITTED BY PATRICK KNOWLTON DOES NOT PROVIDE ANY OF THE

13 DIGITS IN THE LICENSE PLATE.

14 THE AFFIDAVIT ACTUALLY STATES THAT PATRICK KNOWLTON

15 MENTALLY -- WAS ASKED FIRST BY CHRISTOPHER RUDDY TO MAKE A

16 MENTAL NOTE OF THOSE THREE DIGITS. HE MADE A MENTAL NOTE OF

17 THE DIGITS. HE THEN CALLED BY CELL PHONE AMBROSE

18 EVANS-PRITCHARD AND GAVE HIM THOSE DIGITS, AND THEN AMBROSE

19 EVANS-PRITCHARD LINKED THIS SOMEHOW TO DR. ALOURI.

20 WHAT THEY ALSO SPEAK OF IS THAT ON THE DAY THAT THEY

21 WENT TO DR. ALOURI'S HOUSE, THEY -- THEY DID FAIL TO MENTION

22 THAT, ACTUALLY, THAT NIGHT THEY WENT AT 12:00 O'CLOCK IN THE

23 MORNING TO HIS HOME AND INTERRUPTED HIM IN THE MIDDLE OF THE

24 NIGHT WITH HIS FAMILY. THEY'VE STATED THAT THIS --

25 CHRISTOPHER RUDDY EXPLAINS THE STATE OF MIND OF DR. ALOURI,




54

1 THAT THERE WAS AN INTENTION TO CONSPIRE. BUT THERE'S ACTUALLY

2 NO PROOF IN THAT AFFIDAVIT OR IN THAT NEWSPAPER ARTICLE THAT

3 WOULD SUPPORT WHAT DR. ALOURI'S INTENTIONS WERE OR AN INTENT

4 TO CONSPIRE, INTIMIDATE OR BY FORCE TO PREVENT PATRICK

5 KNOWLTON FROM TESTIFYING BEFORE THE GRAND JURY.

6 IN FACT, I THINK ACTUALLY THE RESPONSE OF DR. ALOURI

7 AT THAT TIME WAS FEAR, TO HAVE THREE MEN COME TO HIS HOUSE AT

8 12:00 O'CLOCK IN THE MORNING BANGING ON HIS DOOR, ASKING IF HE

9 WAS INVOLVED IN THE CONSPIRACY TO KILL VINCE FOSTER.

10 IN ADDITION, THE PLAINTIFF HAS ALSO STATED THAT THE

11 COMPLAINT STATES THAT THE SEQUENCE OF EVENTS PROVES A

12 CONSPIRACY. IN THE GOVERNMENT'S BRIEF, THEY'VE CITED SIMMS

13 VS. REINER, WHICH STATES THAT A SEQUENCE OF EVENTS DOES NOT

14 PROVE A CONSPIRACY. THE PLAINTIFF'S COMPLAINT HAS FAILED TO

15 SHOW ANY CONNECTION, OTHER THAN THE DIAGRAM AND SKETCHES, THAT

16 THERE WERE 25 JOHN DOE'S PLACED AROUND DIFFERENT AREAS OF

17 GREATER D.C. THROUGHOUT THE COURSE OF A FEW DAYS. AGAIN, AS

18 WE'VE STATED IN OUR BRIEF AND IN THIS ARGUMENT, THAT DOESN'T

19 PROVE ANY KIND OF FORCE OR INTIMIDATION. IT ALSO DOESN'T

20 PROVE A CONSPIRACY TO CAUSE INTENTIONAL INFLICTION OF

21 EMOTIONAL DISTRESS.

22 AND, LASTLY, EVEN IF THE PLAINTIFF RECOGNIZED

23 DR. ALOURI AT HIS HOME, THAT DOESN'T PROVE ANYTHING. IT

24 PROVES A RECOGNITION. IT DOESN'T PROVE A CONSPIRACY TO CAUSE

25 INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS OR TO OBSTRUCT




55

1 JUSTICE. AND IN FACT BY THE PLAINTIFF'S OWN ADMISSION,

2 PLAINTIFF'S COUNSEL'S OWN ADMISSION TODAY, HE STATED THAT THE

3 PLAINTIFF WAS NOT PREVENTED FROM TESTIFYING FREELY AND FULLY

4 BEFORE THE GRAND JURY. AND, IN ADDITION, THE PLAINTIFF DID

5 TESTIFY BEFORE THE GRAND JURY, WHICH ARE TWO OF THE ELEMENTS

6 TO ACTUALLY BRING SECTION 42 U.S.C.A. 1985(2).

7 THE COURT: ALL RIGHT, THANK YOU, COUNSEL.

8 MS. KOHN: THANK YOU.

9 THE COURT: THANK YOU, COUNSEL, THE COURT HAS HEARD

10 THE ARGUMENTS AND THE MATTER IS SUBMITTED. THANK YOU VERY

11 MUCH.

12 MR. CLARKE: THANK YOU, YOUR HONOR.

13 (PROCEEDINGS CONCLUDED 3:20 P.M.)

14 -OOO-

15 CERTIFICATE OF REPORTER

16 I HEREBY CERTIFY THAT THE FOREGOING IS THE OFFICIAL

17 TRANSCRIPT OF PROCEEDINGS IN THE HEREINBEFORE-CAPTIONED

18 MATTER, AND THAT IT IS COMPLETE AND ACCURATE TO THE BEST OF MY

19 KNOWLEDGE AND ABILITY.

20

21

22
                                                                                              HARRY DEUTSCH
23                                                                                 OFFICIAL COURT REPORTER

24

25

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