Case 3:09-cr-01867-DB Document 205

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IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS EL PASO DIVISION UNITED STATES OF AMERICA, Plaintiff, v. JOHN THOMAS SHIPLEY, Defendant.

Crim. No.: 09-CR-1867-DB

JOHN SHIPLEYS PROPOSED FINDINGS WITH RESPECT TO RECORD RECONSTRUCTION COMES NOW John Shipley and submits this, his proposed findings with respect to any attempt to reconstruct the record for April 13, 2010, in compliance with this Courts May 4, 2012 order: CHARACTER WITNESS ENRIQUE MORENO Judge Briones instructed Ms. Jobe to call Mr. Moreno as a character witness on voir dire outside the presence of the jury, which she did. Mr. Moreno took the stand and as best as Ms. Jobe and Mr. Moreno can recall, Mr. Morenos testimony was as follows: Mr. Moreno is an experienced trial attorney here in El Paso, Texas. Mr. Moreno first met John Shipley in the context of a civil case that Mr. Moreno had wherein Mr. Shipley was a key witness. Mr. Shipley had investigated a case in which an Iranian American woman (Samantha Carrington) was accused of an act of terrorism against a Southwest airlines flight attendant. Mr. Shipley made a finding in his investigation that there was no probable cause to support the accusation made by the flight attendant and refused to swear out a complaint against her in front of the U.S. Magistrate. The woman had been detained but not arrested. After the incident she hired Enrique Moreno to represent her in an action against the airline. During the course of that representation, Mr. Moreno became acquainted with Mr. Shipley. Since Mr. Shipleys investigation findings and opinions about what happened in the airline incident were crucial to his case, Mr. Moreno performed a due diligence investigation in asking several individuals about Mr. Shipley and his reputation for truth and veracity in the community. Mr. Moreno remembers specifically that he discussed that as (he) was preparing to present the case (the civil case against Southwest Airlines), (he) had discussions about Mr.

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Shipley's credibility with, for example, Assistant U.S. Attorneys and other FBI personnel. (6/11/12 Evidentiary Hearing, at 15). Moreover, Mr. Morenos knowledge of and exposure to Mr. Shipley spanned three years the duration of time that Mr. Moreno represented Ms. Carrington against Southwest Airlines. (Doc. 96, Letter from Enrique Moreno to Court). Mr. Moreno explained in detail what he did to inquire in the community about Mr. Shipleys character and reputation. He stated that he had reason to know about Mr. Shipleys reputation for truth and veracity in the community both before and after Mr. Shipley testified in the civil trial as a key plaintiffs witness. The jury in the civil case found Mr. Shipley very credible and believable. Finally, after establishing why and how he knew about Mr. Shipleys reputation in the El Paso community for truth and veracity, Mr. Moreno stated firmly that Mr. Shipleys reputation in the community for truth, veracity, and credibility was above reproach and very strong. In examining Mr. Shipley, Ms. Jobes questions included: 1. 2. 3. 4. 5. Name Occupation How long Mr. Moreno had been a trial attorney Whether he knew John Shipley Whether Mr. Moreno had the occasion to investigate or inquire into Mr. Shipleys reputation in the community for truthfulness and honesty 6. How long Mr. Moreno had known John Shipley 7. Whether Mr. Moreno knew other people who knew Mr. Shipley 8. Whether Mr. Moreno had the occasion to discuss Mr. Shipleys reputation for honesty and truthfulness 9. How it came about that Mr. Moreno had the occasion to discuss Mr. Shipleys reputation for honesty and truthfulness 10. Whether Mr. Moreno talked to others about Mr. Morenos reputation for truthfulness and honesty both before Mr. Shipleys testimony in the Samantha Carrington trial and after the trial. 11. What Mr. Shipleys reputation was in the El Paso community for truthfulness and honesty. These questions are derived from Ms. Jobes handwritten questions to Mr. Moreno during the voir dire examination, attached hereto as an exhibit. JOHN SHIPLEYS TESTIMONY From 9:09 a.m. to 9:17, the subject matters of John Shipleys testimony included but were not limited to a Vickers Night Hawk, Paul Lee, and Estate Sales. No finding can be rendered on what questions were asked, what the answers were, what objections were made, 2

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what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 9:17 a.m. to 9:28 a.m., the subject matters of John Shipleys testimony included but were not limited to whether M/B said gun was defective, Defendants Exhibit 158, whether Exhibit 158 was admitted, Mr. Shipleys explanation about the importance of his gun collection, and Mr. Shipleys explanation about the indictment. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. The Governments cross examination commenced at 9:28 a.m. From 9:28 to 9:33 a.m., the subject matters of John Shipleys testimony included but were not limited to Auto Relist!, Really Like Guns, Build Collection, and Lies. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 9:33 a.m. to 9:50 a.m., the subject matters of John Shipleys testimony included but were not limited to Mr. Cope, Vickers, Collection, Government Exhibits 89 and 14, occasional sales, Mr. Shipleys will, Mr. Shipleys training and experience, Scrutiny 3

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FBI/Military, and Defendants Exhibit 102. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 9:50 a.m. to 9:56 a.m., the subject matters of John Shipleys testimony included but were not limited to Action Arms, Buyer?, Seller Agrees to do Certain things, and Prohibits a side deal did you . No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 9:56 a.m. to 10:12 a.m., the subject matters of John Shipleys testimony included but were not limited to Shell bidding, Collectors Gun Exchange, and Fidelity to FBI. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 10:54 a.m. to 11:53 a.m., the subject matters of John Shipleys testimony included but were not limited to questions about John Shipleys testimony on April 12, 2010, Defense Exhibits 147, 145, and 146, Firearms not intentionally, Mr. Shipleys precise testimony about what he told Agent Henderson and what his mindset was during that conversation, 50 Caliber, Defense Exhibit 88, and an August 5th letter to Mr. Golightly. There were two 4

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objections with respect to argumentative and badgering the witness, but no finding may be made with respect to the timing of the objections, the basis for them, nor any Court ruling on them. No finding can be rendered on what questions were asked, what the answers were, what other objections were made, what rulings were made on any other objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period. From 11:53 a.m. to 12:17 a.m., the subject matters of John Shipleys testimony included but were not limited to Communications with Jordan, M/B weapon to Iraq defective, Mr. Shipleys adoption of his children, and March 9, 2008. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period.

At 1:54 p.m., there was a reference to 50 minutes for each side for closing argument. It is impossible to tell whether this came from a party, the Court, or both. It is unclear whether the AUSA continued cross-examination. There was a brief period of redirect regarding respect to copy @ FBI, Govt Exhibit 16, and Mr. Shipley was off the stand at 2:00 p.m. No finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. Moreover, no finding can be made with respect to what other subjects were discussed during this time period.

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FRANK HENDERSON REBUTTAL TESTIMONY With respect to ATF Agent Frank Hendersons rebuttal testimony, no finding can be rendered on what questions were asked, what the answers were, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period. APRIL 13TH JURY CHARGE CONFERENCE No finding can be rendered with respect to any discussions on April 13th regarding the jury charge, what objections were made, what rulings were made on any objections, and what plain error might exist in the record during this time period.

Respectfully submitted, /S/ Electronically Submitted LEON SCHYDLOWER Attorney at Law 221 N. Kansas Street, Ste. 1103 El Paso, Texas 79901 Tel: (915) 533-8462 Fax: (915) 532-0904 TX Bar No.: 00793659

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing instrument was served upon 6

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all Assistant United States attorneys via CM/ECF, on the 11th day of July, 2012. /S/ Electronically Submitted LEON SCHYDLOWER