Transcript of January 6, 1995


WILLIAM THOMAS, ET AL.,          | Docket No. CA 94-2747
              Plaintiffs,        | 
                                 | Washington, D.C.
          vs.                    | January 6, 1995
                                 | 2:50 p.m.
              Defendants.        |



For the Plaintiffs:



For the Defendants:

Official Court Reporter:
4806-A U. S. Courthouse
Washington, D. C. 20001
(202) 273-0404

Computer-Aided Transcription of Stenographic Notes



THE DEPUTY CLERK: Civil Action 94-2747, William Thomas, et al., versus the United States, et al. Present for the Plaintiff, William Thomas, Ellen Thomas, Concepcion Picciotto, Mark Goldstone; present for the Government, Sally Rider, Randy Myers, Richard Robbins.

MR. THOMAS: Good afternoon, Your Honor.

THE COURT: Good afternoon, Mr. Thomas. Nice to see you again.

MR. THOMAS: Thank you.

MR. GOLDSTONE: Good afternoon, Your Honor. My name is Mark Goldstone. I would like to appear as a friend of the Court and a friend of Mr. Thomas. I would like to not enter a formal appearance at this time.

THE COURT: Say that again. I didn't really --

MR. GOLDSTONE: My name is Mark Goldstone, Your Honor. I would like to appear as a friend of the Court on behalf of Mr. Thomas. I would not like to enter my appearance, however. I would just simply like to appear in an advisory capacity to Mr. Thomas.

THE COURT: Well, you can sit at counsel table, if you wish.

MR. GOLDSTONE: That's fine. Thank you.

THE COURT: Are you a member of the bar of this Court?

MR. GOLDSTONE: Yes, I am, Your Honor.


THE COURT: All right. I have the supplemental pleading that apparently was received in the Clerk's Office at 2:29 this afternoon, and I would like Mr. and Ms. Thomas to know that I have read it carefully, and I read the other motion they filed on December 27th and have decided, based on the record, unless you have something additional you want to assert, additional, that the motion to recuse will be denied.

MR. THOMAS: I would just like to --

THE COURT: If you have something additional, I'll be delighted to hear it.

MR. THOMAS: Yes, I do have something additional, Your Honor.

THE COURT: All right. What is that?

MR. THOMAS: In the Government's opposition to the recusal, I believe it's Footnote 1, they say that there were no papers received. And I have in the courtroom here the person who made service on the U. S. Attorney on December 22nd, and I would like to have him explain to the Court what his recollection is. There's a Certificate of Service attached to the motion to recuse signed by Mr. Kenneth Kahn, who is in the courtroom, and I would just like to put him on the stand and have him explain his perception of Footnote No. 1, that no service was made on the 22nd.

THE COURT: Any objection?

MS. RIDER: Good afternoon, Your Honor.


We object to the extent that our records show that we weren't served. We didn't have copies of the papers. We just got them. If Mr. Kahn dropped off papers somewhere in the office, he may have done so, but they certainly didn't get where they should have been, and our records reflect no service at all.

THE COURT: All right.

MR. THOMAS: Well, Your Honor, I think that this is important, because I'm not trying to -- I'm just trying to find out where the system is breaking down here. And whether Mr. Kahn left the papers on the floor or exactly where he put them 1 think is relevant here, because there is some question as to -I'm saying the papers were served; the Government is saying they didn't get them. Mr. Kahn is here to say where he put them. And I think that the fact that --

THE COURT: Who is Mr. Kahn?

MR. THOMAS: I would like to put him on the stand.

THE COURT: Who is Mr. Kahn?

MR. THOMAS: He is the person who served the papers.

THE COURT: What does he do?

MR. THOMAS: He works for the Public Defender Service.

THE COURT: Of the District of Columbia, or the Federal Public Defender Service?

MR. THOMAS: I think we should put him on the stand.

THE COURT: I'm asking you.


MR. THOMAS: I don't know, Your Honor.

THE COURT: You're sponsoring a witness.

MR. THOMAS: I don't know who he works for exactly. D. C., I've been told.

I think on appeal the question of whether or not the papers were served might be important.

THE COURT: Wait just a moment, please. I received on January 5th, which was yesterday, a pleading from the United States Attorney's Office. I assume you have that. On page 4, at the top of the page --

MR. THOMAS: Are you referring to the --

THE COURT: Just a moment. Let me finish my sentence, sir. "To the undersigned counsel's knowledge, none," underscored, "of the Defendants have yet been served. As noted above, counsel obtained copies of the papers from the Clerk's Office at the courthouse, not from Plaintiffs." Did you see that?

MR. THOMAS: That"s what I'm taking issue with.

THE COURT: All right. All right, sir. You may call the witness.

MR. THOMAS: Thank you. Ken Kahn, please.

THE COURT: Madam Clerk, swear the witness.


Everyone who testifies as a witness in a court of justice such as this has an obligation and duty under the law to


accurately, fully and correctly answer all proper questions put to them by counsel and the Court, and to do so without any bias, fear, prejudice, or sympathy in favor of or against any person or party involved in this case. Therefore, do you agree and declare under the pain and penalty of perjury or false statement to accurately and fully testify as to all the facts as you know them in this case, properly put to you in questions by counsel and the Court? If your answer is yes, please say, "I do."

MR. KAHN: I do.

THE COURT: You may be seated.


THE COURT: In order to assist everybody, would you give us your full name and occupation, sir?

THE WITNESS: Yes. My name is Kenneth Robert Kahn. I'm a law librarian.

THE COURT: And it was just represented to the Court that you are also employed by the D. C. Public Defender Service. Is that correct?

THE WITNESS: Yes, sir.

THE COURT: All right. You may proceed.



Q Mr. Kahn, do you remember the afternoon of December 22nd?

A Yes, I do.


Q Did you have any reason to go over to the U. S. Attorney's Office?

A Yes, I did.

Q And could you tell us the address?

A They are located at 555 - 4th Street, Northwest, Washington, D. C.

Q And would you tell us what you did when you went there?

A I entered the U. S. Attorney's Office and signed the log; went through the metal detector. I asked the Marshal what floor I should go to in order to conduct a service of process. The Marshal then told me I should go to the third floor, which I did. I went to the receptionist, who sits inside a glass booth, and I told the receptionist that I was here to serve pleadings and so forth. And the receptionist then took them from me, and that was the entire transaction.

THE COURT: What papers did you leave with the receptionist?

THE WITNESS: I' left a set of pleadings that were the complaint filed by the Thomases in this case. In other words, it was a pleadings package of various documents that I was given to take in to the Office --

THE COURT: I take it you don't know with precision what those documents exactly were.

MR. THOMAS: I might be able to help, Your Honor.



Q Did you later sign --

THE COURT: I don't want to ask him a leading question.

MR. THOMAS: I don't think this is leading at all.


Q What did you do after you served the papers over at the U. S. Attorney's Office?

A I then -- well, I'm not exactly sure what you mean. In other words, I served the papers and then left the office.

Q And where did you go after you left?

A I returned to my office.

Q Do you remember a press conference that took place in front of the courthouse on that date?

A Yes, I do.

Q And when did you see that?

A Okay. I did go to the press conference prior to serving the papers. The press conference was held in front of the U. S. District Court building. And then I was asked to then go and serve the papers during this press conference. I served the papers as I described earlier, and then returned to the site of the press conference in front of the U. S. District Court building.

Q And when you returned, do you recall going into the courthouse with me?

A Yes.


Q And would you explain what it was that you did when you went into the courthouse?

A We then went to the Clerk's Office and some papers were served there, because we had to serve the papers on the U. S. Attorney to be sure that that was done, which is what I did. WE then went to the Clerk's Office in this building, U. S. District Court building, to give the same set of papers, an additional copy of the same set of pleadings to the Clerk.

Q And did you have any occasion to sign anything while you were in the Clerk's Office?

A Yes. I signed the Certificate of Service, signifying that I had already served this same set of pleadings at the U. S. Attorney's Office.

Q Do you recall where the clerk was standing when you signed that document?

A In other words, what room? Is that what you're asking?

Q No. I'm saying that there was a clerk.

A Right.

Q Did you have any conversation with the clerk, or did you overhear any conversation with the clerk?

A I overheard conversations concerning some procedural matters regarding the filing of these papers.

Q And then you signed the Certificate of Service.

A Yes.

Q And could you tell me how far you were standing from the


clerk when you signed the paper?

A I was a foot away I was very close to the clerk. I mean, I was right there when everything happened.

MR. THOMAS: I think that's it from this witness.

THE COURT: Ms. Rider.

MS. RIDER: Thank you, Your Honor.



Q When you served these papers on the third floor of the U. S. Attorney's Office, did you find out if that was where you're supposed to serve civil papers?

A When I entered the building and after I had gone through the search, I asked the Marshal. I told him, I said, "I have to serve some pleadings," and he said, "Well, you'll need to go" -I didn't know what floor to go to. So he said, "You should go to the third floor, to the receptionist." So that's where I went.

Q Did you say they we~e civil versus criminal?

A He did ask me that, and I said that as far as I know, I believed that they were criminal. And he told me that was the floor to go to. That's to the best of my recollection.

Q Did you tell anybody it was an emergency matter?

A No.

MS. RIDER: I don't have any further questions.

THE COURT: All right. You may be excused, sir.


THE WITNESS: Thank you.

MR. THOMAS: I have one more point.

THE COURT: With him?


THE COURT: All right.

MR. THOMAS: With the Government's

THE COURT: With your consent, he may be excused.


THE COURT: Thank you.

MR. THOMAS: Thank you.

With the question of service of process, I would just like to have it clear that my position is, based on previous experience, that it is not my responsibility, under Title 28, 1415 U. S. Code, Subsection 3, to make service of process. And because the U. S. Attorney is so close and it only takes the U. S. Marshal five minutes to take the papers over there, it wasn't my responsibility to make service of process in the first place. But, as you can see, if we didn't actually do it because somebody didn't know where to send the papers in the U. S. Attorney's Office, we did make an effort.

The main point is, we didn't have to make the effort, because the U. S. Marshal was supposed to serve the papers. And had the U. S. Marshal served the papers, then it wouldn't be necessary to be holding this TRO hearing so far after the fact. And I would like to make that point.


THE COURT: Mr. Thomas, you made that in your papers.

MR. THOMAS: I did. I would just ask the Judge to reconsider.

THE COURT: All right.

The content of your papers and your testimony here will be made a part of the record, sir.

Now, you have made an application for a temporary restraining order wherein you seek an injunction to restrain certain officers from activity complained of in the complaint. I'll hear whatever evidence you want to offer.

MR. THOMAS: All right. First, I would like to call Wade Varner.

MS. RIDER: Your Honor, I would just like, for the record, to interpose an objection since the local rules of this Court dictate that generally these things are decided without witnesses. We didn't have any notice of witnesses that were going to be called, or that they would be called. And we would note our objection for the record.

THE COURT: All right. Well, let me just say this to you, Ms. Rider. Maybe we can find a way to accommodate everybody's interest here if you and Mr. Thomas will stay at the lectern for a second. Do you have any objection to combining your application for a TRO with your application for a preliminary injunction and the merits of the case?

MR. THOMAS: Does the Government have any witnesses?


THE COURT: I asked you that. Do you have any objection to combining your application for a temporary restraining order with your application for permanent injunctive relief and the merits?

MR. THOMAS: Yes, I would.

THE COURT: All right. Then we will hear your motion for a temporary restraining order.

MR. THOMAS: Okay. Thank you.

THE COURT: Now, how many witnesses do you intend to call, sir? You have affidavits in support of your application for a TRO.

MR. THOMAS: That's true. I don't think there's too much that I need to show here, except that there's a pattern and practice of arbitrary abuse of the regulations. And I want to make it perfectly clear, I'm not challenging the constitutionality of the regulations. What I'm challenging here is the way that the regulations are enforced and the supervisory oversight of enforcement of regulations. That's what I'm challenging. I'm not challenging the constitutionality.

THE COURT: All right. Then that's in your affidavit and you don't need any testimonial evidence, do you?

MR. THOMAS: I do need some testimonial evidence, I think.

THE COURT: All right.