USDC Cr. No. 84-3552

     Plaintiff Pro Se    
versus                          CA 84-3552
                                Judge Louis Oberdorfer
UNITED STATES, et al            Magistrate Arthur Burnett

August 22, 1986

THE CLERK: (Sworn in)

The plaintiff acting pro se.
For the defendants: Michael Martinez


THOMAS: Would you state your full name for the record, please?

Duncan: My name is Frank Elwood Duncan, and I'm 36 years old, Social Security Number is 369-48-97--

Thomas: No, that's all right. Where are you employed?

Duncan: National Park Service President's Park.

Thomas: How long have you been employed there?

Duncan: Two and a half years.

Thomas: Why is your supervisor?

Duncan: We're getting a new supervisor as of today who's Audrey Calhoun. The old supervisor, old Park Manager is Carolyn O'Hara.

Thomas: (unclear) (getting items marked)

THE COURT: What was that middle name again, your middle name, Frank?

Duncan: Elwood.

Thomas: These are already in the Administrative Record, so maybe I won't have to have them marked, if I make reference to the page numbers?

THE COURT: If you've got (unclear) administrative record, then (unclear) for identification (unclear)

Thomas: These are page numbers I-J-4 and I-J-6 and I-J-l2 of the Administrative Record. Do you recognize them?

Duncan: Yes, I do, I was the one that took the pictures.

Thomas: Now could you say what the pictures depict?

Duncan: The first would be 1071, depicts paint on the sidewalk. I'm showing the sidewalk as (unclear) what is happening May 9.

MARTINEZ: Just so the Record's clear, Mr. Thomas took these from the Administrative Record, these are from the Lafayette Park administrative record of March or April earlier this year.

THE COURT: All right. To be clear which administrative record we're talking about.


THE COURT: All right. Thank you.

Thomas: Could you say which sidewalk--

Duncan: The (unclear) of 1071 is on Pennsylvania Avenue, Lafayette Park, right across from the White House.

Thomas: The south side of Lafayette Park?

Duncan: Yes.

Thomas: The page number is below the 1071 that you said.

Duncan: I-J-4?

Thomas: Yes. And did you, just let me ask you, you say you took those pictures, do you know the date that you took them?

Duncan: The date under is 8-25-84.

Thomas: Did you see that paint spilled?

Duncan: This particular paint? No.

Thomas: You don't know how that paint got there? Or do you know how that paint got there?

Duncan: I just took the picture showing the paint on there, I do not (unclear) other than some of these, there's more picture that showed people actually building signs, painting them, which (unclear) on the sidewalk, you can see the paint being put on the sidewalk.

Thomas: Okay. But in these particular pictures, well, these, these particular pictures are pictures of large blotches of paint, I think?

Duncan: Correct.

Thomas: And were there any similar in size, were there any similar paint spills that you saw in the park similar in size in--

Duncan: I must say that there were a couple of predominant colors that were used, and there were certain areas where those colors were at. And -- in reference to the third page, which is the 1055 - I-J-12, there's approximately 75 feet of blue paint which goes along the brick, it's quite a large area.

Thomas: Did you see that specifically -- let me show you here, show you what's been marked as Robert McDaniel Exhibit No. 1, Deposition -- (unclear) -- Exhibit No. 2, Robert McDaniel Exhibit No. 2 -- I'm just going to ask a question about where that arrow is --

Duncan: Yes.

Thomas: Could you read that for me, where the arrow's indicating?

Duncan: It says Associate Regional Director, White House Liaison.

Thomas: This arrow, down here.

Duncan: (unclear) note a line of blue drippings going on the outside sidewalk (unclear) describing the blue paint shown in the picture here, starting in the middle and went off to the west side.

Thomas: Did you see that paint spilled?

Duncan: (unclear)

Thomas: Now, that particular one, (unclear) the line of blue dots the report notes, and paint on the sidewalk of Lafayette Park in the first picture that you were looking at, I-J-4, I think it was, were those the major examples of paint damage that you recall?

Duncan: I would say a significant amount. A lot of this paint was latex and will wash off. Some of it was enamel, and it's still there.

Thomas: The blue paint.

Duncan: The blue paint I think is enamel.

Thomas: And that you didn't see spilled.

Duncan: No. (unclear) an awful lot of -- since I am safety officer coming up to the park, I usually made (unclear) in the afternoon and I looked for safety problems and noted extreme amounts of paint on the sidewalk which I had to tell somebody so I called my supervisor that something was going on which needed to be addressed or looked at, so in turn, my supervisor asked me to go up and take these pictures and document such things as were occurring.

Thomas: And that would be Miss O'Hara?

Duncan: That would have been Phil Walsh, my immediate supervisor.

Thomas: So Phil Walsh is the one who instructed you to take--

Duncan: To take pictures and then document the day's, I took the pictures plus write up what I perceived happened on those days I found new paint, or (unclear)

Thomas: It seems to me that (unclear) administrative record there is one wide blotch of paint on the sidewalk on Pennsylvania Avenue and then a lot of other fairly large blotches of paint on the sidewalk of Pennsylvania Avenue.

Duncan: This is correct.

Thomas: A lot of paint. Then, in addition to that it seems that there was one long line of blue drippings, and then there were a few other small little drippings. Do you recall anything other than those three categories of paint?

Duncan: There's one grate here that (unclear) painted up on top as if somebody (unclear) would have to be poured paint on.

Thomas: Would it look like that if it was latex paint and brushes had been washed out in water -- latex paint had been on brushes and the brushes had been in water, and then the water had been poured into the grate?

MARTINEZ: I object, your Honor, I don't know where we're going with this.

THE COURT: What's the materiality, Mr. Thomas?

Thomas: The materiality is to find out, first I think the Court heard Officer Haynes' testimony that he knocked over or he was involved in knocking over the box and paint was spilled. I would represent that all of that paint on the south sidewalk of Lafayette Park, which is the only substantial paint damage, I would represent, was caused by Officer Haynes.

THE COURT: Assuming that's true, what are we establishing, Mr. Thomas?

Thomas: Well, we haven't established too much in that sense in that I can't find out--

THE COURT: That's why I'm saying, what's the importance of this whole line of inquiry, Mr. Thomas, (unclear) ten minutes (unclear)--

Thomas: Aside from--

THE COURT: I'm waiting for the connection.

Thomas: Aside from certain evidence


Duncan: (unclear)

THE COURT: (unclear)

Thomas: I'll just show you these, all these reports that have been made out--

THE COURT: Okay, just for the record, as you look through (unclear) what the exhibit numbers are so the record will show what your testimony refers to. Are these being marked for the first time, Mr. Thomas? Okay, these will be Duncan Deposition Exhibit Numbers (unclear) on the record (unclear). Please state for the record what the numbers are so we know what you're talking about (unclear)

Thomas: Duncan Exhibits 1 through 5, and McDaniel Exhibits 1 and 2.

THE COURT: For identification (unclear)

Duncan: The first one is August twenty--

THE COURT: (unclear) so we know what you're talking about. McDaniel one or two, or Duncan --

Duncan: Duncan (unclear)

THE COURT: Duncan Exhibit one.

Duncan: This is on August 21, I walked through the park noting different areas have been painted, the park's also, the bricks have been defaced or removed are--

Thomas: Okay, let me stop you there. Did you notice anybody defacing or misplacing the bricks?

Duncan: (unclear)

Thomas: How -- do you happen to -- first let me ask you this, did you type these up?

Duncan: No, I did not, my secretary, our secretary for the Parks did, I didn't. I just hand wrote them out (unclear)

Thomas: Okay--

THE COURT: (unclear)

Thomas: Yeah, all, um--

THE COURT: All seven of them?

Thomas: All, yes, all seven of them, whether he typed them up or not.

THE COURT: Just for a clear record, are you saying that all seven of these documents were typed from handwritten notes or memorandums you wrote?

Duncan: All of mine did, yes.

THE COURT: That's what I'm saying, I'm not sure which ones of those are yours and which ones are somebody else's.

Thomas: If you'll just point out any that aren't yours.

Duncan: Okay, the Exhibit One under McDaniel, I did not write that, that was my day off (unclear)

THE COURT: All right. What are (unclear) the others?

Duncan: No, the rest of them I hand wrote.

THE COURT: (unclear) interrupting (unclear) so we're not guessing later on.

Thomas: I appreciate it. The question was, these reports were generated as a result of instructions given to you by --

Duncan: My boss, Phil Walsh. What was happening here, there was construction going on of signs, and observance of such things as bricks being broken up and that, which happens when you put signs on bricks, and some of these bricks are (unclear) tempered after being weathered for awhile, (unclear), then you have safety problems, and as safety officer I was trying to note that we were having brick problems, safety problems, (unclear) that happen to have high heels on, (unclear) come walking by and get her foot caught and (unclear) her ankle or worse, and that's why I brought it up.

Thomas: Brick damage?

Duncan: Brick damage but also (pause), after explaining that to my boss he requested that I document and photograph what was going on so that we would have a record of it. Which I did. Each day I just tried to note if I found something new, I didn't try to go repeat the same things.

Thomas: Okay. Would you explain that first sentence in Exhibit Number Two?

Duncan: Exhibit Number One.

Thomas: Exhibit Number One. Duncan.

Duncan: It says, "I observed the old sidewalk along Pennsylvania Avenue in Lafayette Park is all clear of demonstration signs."

Thomas: What did you mean by the old sidewalk was clear?

Duncan: At the time we were getting ready to go through and brick the outside, which has now been done.

Thomas: "Was clear of demonstration signs." Had there been demonstration signs there before?

Duncan: Yes, there was.

Thomas: And that's dated--

Duncan: It's dated August 21, 1984.

Thomas: At that time there were no bricks on the old sidewalk.

Duncan: Correct.

Thomas: But there had been demonstration signs on the old sidewalk prior to August 21?

Duncan: Correct.

Case Listing --- Proposition One ---- Peace Park