Show Temp 5

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
UNITED STATES OF AMERICA, )
)
Plaintiff, ) 4:06CR-3095
) May 25, 2007
vs. ) 2:10 p.m.
) Lincoln, Nebraska
JEFFREY E. HOOVER, )
)
Defendant. )
TRANSCRIPT OF TESTIMONY OF STEVEN McCAUL
BEFORE THE HONORABLE RICHARD G. KOPF
UNITED STATES DISTRICT JUDGE, AND A JURY
A-P-P-E-A-R-A-N-C-E-S
FOR THE PLAINTIFF: Alan L. Everett
Janice M. Lipovsky
Assistant United States Attorneys
100 Centennial Mall North
Suite 1400
Lincoln, Nebraska 68508
FOR THE DEFENDANT: Robert B. Creager
Jonathan M. Braaten
Anderson-Creager Law Office
1630 K Street
Lincoln, Nebraska 68508
TRANSCRIBER: Allan G. Kuhlman
111 S. 18th Plaza
Suite 3122
Omaha, NE 68102
(402) 661-7305
4:06-cr-03095-RGK-DLP Doc # 102 Filed: 05/31/07 Page 1 of 63 - Page ID # 441
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(At 2:10 p.m. on May 25, 2007, with counsel for the
parties and the defendant present, the following proceedings
were had in the presence of the jury:)
THE COURT: Mr. Everett, you may proceed.
MR. EVERETT: Thank you, Your Honor, we call Steven
McCaul.
THE COURT: Mr. McCaul, if you will take a seat in
that witness box, just come around here, sir, and sit down in
that witness box. This lady will swear you in, Mr. McCaul.
COURTROOM DEPUTY: Please state and spell your name
for the record.
THE WITNESS: S-T-E-V-E-N; M-C-C-A-U-L.
STEVEN McCAUL, PLAINTIFF'S WITNESS, SWORN
THE COURT: Mr. McCaul, that chair doesn't move,
it's bolted down to the ground.
So I want you to lean forward and place your elbows
kind of on the desk in front of you like that and I want you
to speak directly into these microphones. Will you do that?
THE WITNESS: Yes.
THE COURT: The lawyers are going to ask you
questions from the podium. Mr. Everett, you may inquire.
MR. EVERETT: Thank you, Your Honor.
DIRECT EXAMINATION
BY MR. EVERETT:
Q. Mr. McCaul, how old are you?
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STEVEN McCAUL - DIRECT EXAMINATION
3
A. 32.
Q. Where do you live?
A. Omaha.
Q. What is your educational background?
A. Little.
Q. How far did you get in school?
A. Fifth.
Q. What do you do for employment?
A. I'm a fight manager.
Q. How long have you been a fight manager?
A. A couple years.
Q. You're here to testify today about some events that
occurred back in 1997. Do you understand that?
A. Yes.
Q. Before testifying today, did you sign a proffer agreement
with the government?
A. Yes.
MR. EVERETT: Your Honor, may I approach the witness?
THE COURT: Yes, you may.
BY MR. EVERETT:
Q. Mr. McCaul, I'm handing you what has been marked as
Exhibit 77.
If you would look at the second and third pages of
that. Is your signature on that document?
A. Yes.
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Q. And did you sign that document on or about the dates that
are listed on there?
A. Yes.
Q. And that's called a proffer agreement; is that right?
A. Yes.
Q. And that outlines an agreement that you made with the
government in this case?
A. Yes.
Q. Does Exhibit 77 look like it's an accurate copy of the
original document that you signed?
A. Yes.
MR. EVERETT: Your Honor, I would offer Exhibit 77.
MR. CREAGER: No objection, Judge.
THE COURT: It's received.
BY MR. EVERETT:
Q. What is your understanding of your obligations under that
agreement?
A. To tell the truth.
Q. Does that agreement say that generally the things you say
are not going to be used against you?
A. Yes.
Q. Are there circumstances, though, under which we could use
those statements against you?
A. I think.
Q. What are those situations?
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A. If I don't tell the truth.
Q. If you lie under oath here today we can use your
statement to prosecute you for perjury; is that right?
A. Yes.
Q. Do you know Jeff Hoover?
A. Yes.
Q. How do you know Jeff Hoover?
A. Just friends, got to know him through another friend when
I moved up here.
Q. How old were you approximately when you first got to know
Jeff Hoover?
A. Maybe 18, 19.
Q. And how old is he compared to you?
A. I don't know. He's younger.
Q. Is he here in the courtroom today?
A. Yes.
Q. Can you point out where he's sitting and describe what
he's wearing?
A. Over there in the pink shirt and black tie.
Q. Over here to my right?
A. Yes.
MR. EVERETT: I would ask the record to reflect that
the witness has identified the defendant, Your Honor.
THE COURT: It will.
BY MR. EVERETT:
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Q. Did you get to be friends with Jeff Hoover?
A. Yeah.
Q. What kind of things did you do together?
A. Hang out and drink, played Play Station and stuff.
Q. Go fishing together?
A. Yeah, fishing.
Q. Where would you play Play Station?
A. Usually in my apartment.
Q. Do you remember where you were living back in 1997?
A. Yes.
Q. Where was that?
A. About 44th and Cornhusker.
Q. Is that where you would get together and play Play
Station?
A. Yes.
Q. How old were you in June of 1997?
A. Twenty-two. Twenty-three. I don't know. I would have
to add it up.
Q. If you were 18 years old when you met Jeff Hoover, you
had known him a few years by then?
A. Yeah.
Q. Did you ever know Mr. Hoover to smoke marijuana?
A. No.
Q. Did you ever know him to do any other kinds of drugs?
A. No.
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Q. You mentioned he did drink, the two of you, one of the
things you did, you would get together and drink?
A. Yes.
Q. Did you ever know him to buy and sell marijuana?
A. Yes.
Q. Tell us about that.
A. He would buy it and just sell it to people.
Q. This was back in '97?
A. Yes.
Q. Did you know Brian Kempton?
A. Yes.
Q. Did he have a nickname?
A. BJ.
Q. How did you know him?
A. Through Hoover.
Q. And why was that? How did you know him through
Jeff Hoover?
A. He was dating his sister, so he just hung out a lot.
Q. Did you know, back in 1997, did you know a Ben Waldbaum?
A. No. I know of him, like I met him a couple times, but I
didn't know him.
Q. I want to make sure you speak loudly enough there so
everybody can hear us.
A. Okay.
Q. Back in June of 1997 did you own a twenty-two caliber
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rifle?
A. Yes.
Q. Had you purchased that gun?
A. Yes.
Q. Did you fill out some forms when you bought that gun?
A. Yeah.
Q. And you signed your name to some forms?
A. Uh-huh.
Q. And did you register that gun with the Lincoln Police
Department?
A. I don't think so. I don't know. I mean, I filled out
papers at Mike's Guns.
MR. EVERETT: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. EVERETT:
Q. Sir, I'm showing you what has been marked as Exhibit 81.
There's some cover pages and then there is a photocopy of a
document. Do you recognize your signature on that document?
A. Yes.
Q. Is this a form you filled out when you bought the gun?
A. Yes.
Q. And it does have your signature on the document?
A. Yes.
Q. And then you said -- I asked you about registering the
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gun with the Lincoln Police Department.
Showing you Exhibit 80, which is a photocopy of
another form, do you see your signature on that document?
A. Yes.
Q. Down towards the bottom where it has your name?
A. Yes.
Q. Do both of those look like copies of your actual
signature?
A. Yes.
Q. The forms indicate that this is a Ruger rifle. Is that
the kind of rifle that you owned?
A. Yes.
Q. A twenty-two caliber rifle?
A. Yes.
Q. What did that gun look like?
A. It had a wooden stock and black barrel.
MR. EVERETT: If I may approach the witness again,
Your Honor?
THE COURT: You may.
BY MR. EVERETT:
Q. Showing you what has been marked as Exhibit 78, what is
that?
A. A Ruger 10 twenty-two.
Q. Is that a picture of a Ruger 10 twenty-two?
A. Yes.
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Q. Does that look like the Ruger 10 twenty-two that you
owned?
A. Yes.
Q. And to be clear, I'm not asking you is that the actual
gun you owned?
A. It looks like it.
Q. That gun looks like yours?
A. Yes.
MR. CREAGER: No objection, Your Honor.
THE COURT: 78 is received.
BY MR. EVERETT:
Q. Now, after buying the gun, did you buy anything that
would hold extra ammunition for it?
A. Yes.
Q. And tell us about that.
A. I just bought a banana clip.
Q. What is a banana clip?
A. It just holds more rounds.
Q. Do you remember how many rounds the one you bought would
hold?
A. Fifty.
Q. What did it look like?
A. Just in the shape of a banana, see-through, black one.
Q. What do you mean by see-through?
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A. You could see the bullets in it.
MR. EVERETT: May I approach the witness, Your
Honor?
THE COURT: Yes.
BY MR. EVERETT:
Q. Showing you what has been marked as Exhibit 79, do you
recognize that?
A. Yes.
Q. What is that?
A. A banana clip.
Q. Does that look like the banana clip that you had for your
gun?
A. Yes.
MR. CREAGER: No objection, Your Honor.
THE COURT: Received.
MR. EVERETT: I would ask permission to publish
Exhibit 78.
THE COURT: You may.
BY MR. EVERETT:
Q. Mr. McCaul, we're looking at the picture of the
twenty-two caliber rifle right now, is that right?
A. Yes.
THE COURT: Mr. McCaul, there is a television screen
on your right. You can look at that same picture there on
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that television screen.
THE WITNESS: Okay.
BY MR. EVERETT:
Q. Do you remember -- this gun looks like it has a wooden
stock to it. Did your gun have a wooden stock?
A. Yes.
Q. And if we could see Exhibit 79? This is the banana clip
you were talking about?
A. Yes.
Q. And how would that banana clip work with the gun? How
did it fasten to the gun?
A. You just clipped it inside of the bottom.
Q. It came out of the bottom?
A. Yeah.
Q. If we could go back to Exhibit 78? There is a little
black sort of a pointer pen there.
You can touch that to the screen and if you would
circle where on the gun you would --
A. Right there.
Q. It would fasten to the gun in that location?
A. Yes.
Q. Take your finger and touch that screen in the bottom
left-hand corner and that should make the purple circle go
away. Thank you.
You bought that gun, it looks like, sometime in
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1995?
A. Yes.
Q. Did you used to get together with Mr. Hoover and do any
shooting with that gun?
A. Yes.
Q. And did Brian Kempton ever go with you when you did that?
A. I think a couple times. I'm not for sure.
Q. Tell us about that. Where would you and Mr. Hoover go to
use this gun?
A. We would go out by Brian's house.
Q. Out by Brian's house?
A. BJ's house, Kempton's.
Q. Where was that?
A. Out in the country by Waverly.
Q. They lived outside of town somewhere?
A. Yeah, right outside of Waverly towards Lincoln.
Q. Some kind of farm of something?
A. Kind of.
Q. What sorts of things would you and Mr. Hoover shoot with
the rifle?
A. Just whatever was in the creek bed.
Q. How many times did you and Mr. Hoover get together to do
that?
A. I don't know. A few times. Five, six.
Q. And this was before June of 1997?
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A. Yes.
Q. Now, I think you started to tell us previously, but in
June of 1997 where were you living?
A. Cornhusker, 44th and Cornhusker.
Q. In what kind of a place? Was it a house?
A. Apartment.
Q. And who lived there with you?
A. My wife and two kids.
Q. Do you remember two bodies being found dead in an
apartment in Lincoln in June of 1997?
A. Yes.
Q. Did you loan your gun to anyone a few days before those
bodies were found?
A. Yes.
Q. Who did you loan your gun to?
A. BJ Kempton.
Q. Approximately how many days do you think that was before
the bodies were found?
A. A week.
Q. And what were the circumstances? How did it happen that
you loaned your gun to BJ Kempton?
A. Jeffrey called me and asked me to borrow the gun.
Q. When you say Jeffrey, do you mean Jeffrey Hoover?
A. Yes.
Q. When you say a week before the bodies, are you referring
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to a seven day calendar week or a five day workweek?
A. Workweek, I guess, just right in there.
Q. You say Jeffrey Hoover called you?
A. Yeah.
Q. Were you at home?
A. Yes.
Q. This was the apartment near 44th and Cornhusker?
A. Yes.
Q. Do you remember what time of day it was when Jeff Hoover
called you?
A. It was daytime.
Q. What did Jeff Hoover say when he called?
A. Just can he borrow the gun pretty much.
Q. And did you understand him to mean the twenty-two caliber
gun?
A. Yes.
Q. Had he ever borrowed that gun before?
A. Yes.
Q. How many times had he borrowed that gun from you?
A. Maybe three times; four times.
Q. So did you think it was unusual that he was calling to
borrow the gun?
A. No.
Q. And it was Jeff Hoover who called to borrow the gun?
A. No.
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Q. It wasn't Brian Kempton?
A. Uh-huh.
Q. You need to say a yes or a no.
A. No.
Q. And it wasn't Benjamin Waldbaum?
A. No.
Q. When Jeff Hoover asked to borrow the gun, did he say why
he wanted it?
A. No.
Q. Did you ask him?
A. No.
Q. Why did you think he was borrowing the gun?
A. Because sometimes he goes target practice or something,
like we go shooting.
Q. Did he come to get the gun himself?
A. No.
Q. Who came to get the gun?
A. BJ Kempton.
Q. And how did BJ Kempton get to your house or your
apartment?
A. He drove.
Q. Do you know whose car he drove?
A. Jeffer's?
Q. And Jeffer was Jeff Hoover?
A. Yeah, Jeff Hoover.
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Q. How long did it take him to get to your apartment after
the phone call?
A. I don't think very long. I can't really remember.
Q. And what did you do when Mr. Kempton got to your
apartment driving Jeff Hoover's car?
A. Took the gun out to him and gave it to him in a blanket.
Q. So you left your apartment and went outside?
A. Yeah.
Q. To the car?
A. Yes.
Q. And you had the gun covered with something?
A. Yes.
Q. And what do you think that was?
A. A blanket.
Q. Did BJ Kempton stick around very long?
A. No.
Q. Did you talk to him much?
A. No.
Q. You just handed over the gun and he drove away?
A. Yes.
Q. Did you ever see that gun again?
A. No.
Q. When was the next time you talked with Jeff Hoover?
A. Later that night.
Q. Was it light out or dark out?
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A. Dark.
Q. And where did the conversation take place?
A. Out by my mailbox.
Q. Where is your mailbox located in relation to your
apartment?
A. Right at the beginning of the parking lot, like twenty
feet from my door, maybe thirty.
Q. So you're outside?
A. Yes.
Q. Was anybody part of this conversation other than yourself
and Mr. Hoover?
A. Just me and Jeffrey.
Q. And what did you talk about at that time?
A. He had just talked about what happened.
Q. What did he say?
A. Just the stuff that happened in the apartment; that he
had shot two people.
Q. What else did he say?
A. Just that he wanted his money back and they wouldn't give
it to him.
Q. Did he say what the money was for?
A. He gave them some money to get some weed, some pot.
Q. And did he describe the people he had given the money to?
A. Yeah. One was white; one was black.
Q. He said he gave that money to them for some weed?
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A. Yes.
Q. Does that mean marijuana?
A. Yes.
Q. Did he say that your rifle was somehow connected with
this?
A. Yes.
Q. What did he say about that?
A. He just said he used my rifle.
Q. Did he describe how he used the rifle?
A. Yes.
Q. What did he say?
A. That he was arguing with the guy and the guy came at him
so he shot.
Q. Did he say which guy that was?
A. I think the black guy.
Q. What else did he say?
A. And then the white guy was on the couch or something and
tackled him and they struggled and he ended up shooting him.
Q. Did he say anything to you about a pillow?
A. Yes.
Q. What did he say?
A. He put the pillow over their heads and shot them.
Q. Did he say why he did that?
A. Not really. I think he -- maybe they was still alive.
MR. CREAGER: I think it's -- move to strike that as
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not responsive. He said he didn't know.
THE COURT: The words I think they were still alive,
or words to that effect, are stricken.
BY MR. EVERETT:
Q. Did he say where on their bodies he had shot these
people?
A. Stomach and the head.
Q. Did he say where this took place?
A. In the black guy's apartment.
Q. Did he talk about being in that apartment?
A. Yes.
A. Just hot.
Q. He said it was hot?
A. Yeah, and he was there for a while, a long time, waiting.
Q. What else did he say about waiting for a long time?
A. Just it was hot, he was waiting for a long time, he was
getting mad, he didn't know if they were coming back or not.
Q. Did he say who else was there?
A. Yes, both of the BJs, BJ Kempton and the other BJ that I
don't know very well.
Q. But BJ Kempton and some other guy named BJ were there?
A. Yes.
Q. Did Mr. Hoover tell you what they were doing?
A. Just sitting there waiting.
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Q. Did he say what they were doing when he shot these
people?
A. He said they was just standing there kind of stunned,
freaked out.
Q. How was Mr. Hoover acting when he was telling you all
this?
A. Nervous; scared.
Q. Did he tell you what BJ Kempton and the other BJ did
after he shot these people?
A. Ran out of the apartment.
Q. Did he say whether they took anything with them?
A. I think their bikes.
Q. You remember him saying something about them taking
bikes?
A. Yes.
Q. Did he say anything to you about fingerprints?
A. Yeah, he said they wiped them down, wiped the place down,
or he wiped them down afterwards.
Q. Did he tell you what had happened to your gun?
A. No.
Q. Did he ever give you your gun back?
A. No.
Q. Did he ever tell you what he had done with the gun?
A. Just threw it away in parts.
Q. Threw it away in parts?
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A. Yes, took it apart and threw it away in different places.
Q. Did he ever tell you where those places were?
A. No.
Q. Did you talk to him about this matter, about these
homicides any other time?
A. Yes.
Q. When was that?
A. We were driving around drinking on a gravel road.
Q. What gravel road? Was it near a town anywhere?
A. I can't remember what town. Probably Waverly or maybe
Ashland.
Q. Was this just the two of you?
A. Yes.
Q. And this was some later time, I take it?
A. Yeah.
Q. How much later?
A. Maybe six months later.
Q. And what did he say to you about the homicides at that
time?
A. Just he was still nervous about them and stuff like that.
Q. Did he give you any additional details in this statement
that he had not mentioned before?
A. I don't think so.
Q. Did he say anything about a checkbook?
A. Yes.
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Q. What?
A. They found a checkbook downstairs behind the washing
machine.
A. They just found it down there, so he was nervous about
it.
Q. Did he say anything in this second conversation to you
about trying to remove evidence from the scene?
MR. CREAGER: Your Honor, I'm going to object.
These questions are a little bit leading.
THE COURT: That will be overruled.
THE WITNESS: I can't remember.
BY MR. EVERETT:
Q. Did you ever talk with BJ Kempton, Brian Kempton, about
this?
A. Yes.
Q. And when was that?
A. Like a week after it happened.
Q. And --
THE COURT: Mr. Everett, are we going to get into
the statement we spoke about earlier?
MR. EVERETT: Yes, Your Honor.
THE COURT: Mr. Creager, do you want the limiting
instruction now?
MR. CREAGER: No. Perhaps --
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THE COURT: Tell me when you want it.
MR. CREAGER: I assume you will just ask for the
conversation, yes or no, and he will ask for the conversation
and I can object.
THE COURT: Go ahead.
BY MR. EVERETT:
Q. Where did your conversation with Mr. Kempton take place?
A. From my apartment to the gas station right up the street.
Q. What were the two of you doing at the time of the
conversation?
A. Just going up to buy some hot dogs and pop.
Q. This is from your apartment to where?
A. I think it was a Kwik Shop or a 7-11.
Q. How far is that from your apartment?
A. Just one block.
Q. Was there anybody involved in this conversation, other
than just the two of you?
A. Just the two of us.
Q. Were you in a car? Walking?
A. Walking.
Q. The two of you were just walking?
A. Yes.
Q. What time of day?
A. Daytime, early.
Q. And now is the question, what did Brian Kempton say to
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you about this?
MR. CREAGER: I will interpose my hearsay objection
and 403.
THE COURT: That objection is overruled. Ladies and
gentlemen I will have an instruction for you after the
witness has testified. You may answer the question, sir.
BY MR. EVERETT:
Q. The question is, what did Brian Kempton say to you?
A. He just said what happened pretty much, just what Jeffrey
did, and then --
Q. What did he say?
A. He shot the guys.
Q. Wait a minute. Brian Kempton said what to you? Who shot
who?
A. Jeffrey shot the two guys and he freaked out, left.
Q. Who freaked out?
A. Brian Kempton, and then he thought he had seen one of the
guys with money stuffed in his back pocket and so he went
back to check, went back to the apartment to check the guy's
pockets to see if the money was there, and he said there
wasn't.
Q. Did he say why this had happened?
A. Yeah, just because the guys ripped him off.
Q. What guys ripped him off?
A. The guys ripped off Jeff Hoover.
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Q. And did Brian Kempton tell you what he was doing when
this killing happened?
A. Just stunned, standing there.
Q. Do you remember anything else Brian Kempton told you at
that time?
A. No, just that he went back to try to check to see if the
money was there.
Q. Okay.
A. And I think he said to wipe down a couple more things.
THE COURT: Ladies and gentlemen, I'm going to give
you a limiting instruction now about what Mr. McCaul has
testified that Mr. Kempton said to him, allegedly said to him
in the summer of 1997.
You may use the testimony of Steven McCaul about
what Brian Kempton said to him in the summer of 1997 for a
limited purpose.
You may only use what McCaul said that Kempton said
in the summer of 1997 to evaluate the credibility of
Brian Kempton.
In other words, Kempton's statement to McCaul in the
summer of 1997 cannot be used by you to prove that the
defendant is guilty of the crime charged.
That is, it can be used only to evaluate Kempton's
credibility. Is that sufficient, Mr. Creager?
MR. CREAGER: Yes, Your Honor.
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THE COURT: Go ahead.
MR. EVERETT: Thank you, Your Honor.
BY MR. EVERETT:
Q. Mr. McCaul, has it been difficult for you to come forward
with all this information and tell authorities everything you
knew about this?
A. Yes.
Q. And why is that?
A. Jeffrey is my friend and it was my gun.
Q. Did you think that that meant you could be charged with
something?
A. Yes.
MR. EVERETT: Could I have just a second, Your
Honor?
THE COURT: You may.
BY MR. EVERETT:
Q. When Mr. Hoover told you that somebody had found his
checkbook in a laundry room, do you remember who it was that
he said had found the checkbook?
I mean, did he find the checkbook? Did somebody
else find the checkbook?
A. The police.
Q. The police had found the checkbook?
A. Yes.
MR. EVERETT: Nothing further, Your Honor.
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THE COURT: Mr. Creager, would you like to begin
your cross-examination now or would you like to take our
break?
MR. CREAGER: Could we take a short break, Your
Honor?
THE COURT: We sure can. Ladies and gentlemen, we
will take our mid-afternoon break at this time.
If you will follow the courtroom deputy, she will
help you now.
(The following proceedings were had out of the
hearing of the jury:)
THE COURT: Now outside the presence of the jury, is
there anything we should take up?
MR. EVERETT: No, Your Honor.
MR. CREAGER: No, Your Honor.
THE COURT: We'll be in recess for fifteen minutes.
Sir, if you will step down and go with the police officer,
he'll escort you out of the courtroom if you like, and you
have to come back here in about fifteen minutes and we'll get
you out of here as soon as we can.
THE WITNESS: Okay.
(2:44 p.m. - Recess Taken)
(At 2:57 p.m. on May 25, 2007, with counsel for the
parties and defendant present, the following proceedings were
had out of the presence of the jury:)
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THE COURT: Can I bring the jury in?
MR. CREAGER: May we approach, Judge?
(The following proceedings were had out of the
hearing of the jury:)
MR. CREAGER: I think I want his statement in for
the truth of the matter asserted, the whole damn thing,
because I don't know how I can cross this statement right
now. I'm going to try, but that account reads so different
(inaudible & unintelligible) maybe offer his whole
investigative statement because I don't think I can cross
line by line from the report.
I'll do the best I can, but I may wind up offering
his entire statement (unintelligible) what Mr. Everett
thought he was going to say is completely different than what
he said.
THE COURT: There are some inconsistencies, but the
gist of what he said is sort of the gist of what you have
just shown me. I mean --
MR. CREAGER: (Unintelligible).
THE COURT: This gets back frankly to the lesser
included potential.
MR. CREAGER: (Unintelligible).
THE COURT: Well, I don't know. I think --
MR. CREAGER: It's an inconsistency (inaudible) this
is the statement we were arguing about, and if he said
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anything close --
THE COURT: Do you see what he's referring to,
Mr. Everett?
MR. EVERETT: I haven't looked at it in some time.
Do I read this whole section?
MR. CREAGER: (Inaudible) what did BJ tell you. I
think there are some inconsistencies but --
THE COURT: Mr. Creager, if at some point you want
me to withdraw the limiting instruction.
MR. CREAGER: (Inaudible) are offering this at this
point. I will try to use it as much as I can for cross.
THE COURT: Sure, and if you want me to withdraw the
limiting instruction, you can talk about that.
MR. CREAGER: (Inaudible) collateral evidence of,
depending on how he answers the question. If he says this is
what I said, that's one thing.
If he denies this is what he said, that's another
thing. I'm just trying to let you know if I stumble around
out there (inaudible).
THE COURT: Mr. McCaul, would you retake the witness
stand? May I bring the jury in?
MR. EVERETT: Yes, Your Honor.
MR. CREAGER: Yes, Your Honor.
THE COURT: Bring the jury in, please.
(The following proceedings were had in the hearing
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STEVEN McCAUL - CROSS-EXAMINATION
31
of the jury:)
THE COURT: Mr. Creager.
MR. CREAGER: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. CREAGER:
Q. Mr. McCaul, back in 1997, the summer, perhaps around
June, you drank a lot; isn't that true?
A. Yes.
Q. And you took a lot of drugs?
A. Yes.
Q. And you took mushrooms, do I understand that?
A. Yes.
Q. And mushrooms are a psychedelic drug, is that right?
A. Right.
Q. It affects your mind and affects your perception, right?
A. Yes.
Q. And how deep into drugs were you in June of 1997?
A. I took a lot of them.
Q. Can you give the ladies and gentlemen of the jury a
typical day and how drugs interacted with your typical day
back in June of 1997?
A. If it was there, I did it.
Q. Was there ever a day you weren't high, let's just pick
the month of June?
A. A couple times I wasn't.
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Q. Okay. Now, how long had you known BJ Kempton before the
summer of 1997?
A. A while.
Q. And how did you come to know Mr. Kempton?
A. Through Jeff Hoover.
Q. And did you sell drugs to Mr. Kempton?
A. Yes.
Q. And did he buy drugs from you?
A. Yes.
Q. And were you involved in any drug deals generally with
Mr. Kempton?
A. Not a lot.
Q. But some?
A. Just like he'll come over and buy ten dollars worth or
something.
Q. Did you buy drugs from him?
A. No.
Q. In the summer of '97, including June, you owned this
twenty-two rifle; is that correct?
A. Yes.
Q. Isn't it true that Mr. Kempton would borrow that rifle
from time to time?
A. No.
Q. You never gave or loaned that rifle to Mr. Kempton in the
summer of '97?
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A. I just handed it to him that day. That was the first
time.
Q. Do you remember giving a statement to law enforcement
back in November, on November 26, 2005, to Detective Breen in
which you told Detective Breen that you had loaned the rifle
to Hoover and Kempton on at least a couple of occasions?
A. Yes, but Kempton was with Hoover, Jeffrey.
Q. If Mr. Kempton had stopped by to pick up the gun in the
summer of 1997, you wouldn't have given it to him?
A. No.
Q. Before you testified here today, sir, did you review any
of your statements or statements of other individuals in
order to refresh your recollection as to what to tell the
ladies and gentlemen of the jury here today?
A. I've talked to people.
Q. Who did you talk to?
A. To Alan.
Q. Mr. Everett?
A. Mr. Everett, yes.
Q. Who else?
A. Breen, Jim Breen.
Q. One of the police officers?
A. Yes.
Q. Who else?
A. Just mostly those two.
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Q. Did they give you any of your prior statements to read in
order to remind you as to what you said in the past about
your knowledge of this case?
A. They just asked me questions.
Q. Can you read?
A. Not very good.
Q. If they had given your statement to read in order to
refresh your recollection about what you said in the past,
would you have been able to read it?
A. It would have took a while.
Q. So you don't recall then having read any of your prior
statements?
A. No.
Q. So you're testifying today from the best of your memory
based solely upon your recollection as you sit there, is that
true?
A. As I remember.
Q. How long were you a heavy drug user? That is how long
after June of 1997 did you continue to use drugs, mushrooms,
as often as you could?
A. A while.
Q. What is a while?
A. Just all my life.
Q. How about yesterday?
A. I haven't used drugs.
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Q. How about when is the last time you used drugs?
A. About five weeks ago.
Q. What kind of drugs were you using five weeks ago?
A. Pain killers.
Q. And were those prescription drugs?
A. Yes.
Q. What other non-prescription drugs have you had prior to
that time?
A. Just alcohol and some marijuana.
Q. So you are still drinking and smoking a little pot?
A. Yes.
Q. Is that a daily affair?
A. No. Drinking is.
Q. Mr. Everett asked you if you recalled the homicides that
occurred in June of 1997 and you did, right?
A. Yes.
Q. Are you telling us today that from your own recollection,
as you sit here today, back in June of 1997 you heard about
or remember that there were two homicides?
A. Yes.
Q. And that at around that time, you think maybe five days,
five working days before that, Mr. Kempton came to your house
to pick up a weapon; is that right?
A. Yes.
Q. Was Mr. Kempton alone?
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A. He came alone -- he drove or not. I can't remember if
there was two people.
Q. Isn't it a fact that you said in the past there were
actually two people in the vehicle when Mr. Kempton arrived?
Isn't that so?
A. I said I can't remember if there was two people or just
Mr. Kempton.
Q. Before I ask you what you said before, what is your
testimony here today? Were there two people in that car or
not?
A. I can't remember.
Q. All right.
A. I know Kempton was in it.
Q. When was the first time that you were contacted by anyone
from law enforcement to ask you anything about your gun or
the homicides that you've testified to here today concerning?
A. I can't remember the date. Maybe six months ago.
Q. It was sometime either late in 2007 or -- late in 2006 or
early 2007?
A. Yes.
Q. What were those circumstances?
A. They went to my girlfriend's house, my ex-girlfriend's
house looking for me, and her parents called me so I
contacted them with the number they gave me.
Q. So you knew from other sources, other people you knew,
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that the police were out looking to talk to you, right?
A. Yes.
Q. Without telling us how you would have known, did you know
what they were coming to talk to you about?
A. No.
Q. You hadn't talked to anybody else, any other friends, any
other acquaintances, Mr. Kempton, anybody else about the
investigation of the two homicides back in June of 1997?
A. No.
Q. Where were you living during that time period, that
approximate six months ago when you heard that they were
looking to talk to you?
A. Iowa. Council Bluffs.
Q. I take it then you made arrangements, you contacted the
law enforcement officials and gave them a statement, right?
A. Yes. They came over to my house.
Q. And isn't it true that in the first statement they just
asked you about whether you owned this twenty-two; is that
right?
A. I can't remember what all the questions they asked, but
they brought that up.
Q. And you were talking to them about this target practice
area, the shooting practice, or whatever it is they were
looking for; is that right?
A. Yes.
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Q. And during these initial conversations you didn't tell
anybody that you had any knowledge about the shooting or
anybody had said anything to you about the shooting; isn't
that true?
A. Yes.
Q. Eventually, however, the questions got a little bit more
heated, didn't they?
A. Yes.
Q. And is it true that as the various members of law
enforcement were interrogating you they were insinuating that
they knew what happened, that your gun was involved in the
homicide and you were obstructing justice?
A. They was just asking questions, just where is my gun and
stuff like that.
Q. But you knew when they were asking questions about where
your gun was, you knew that you didn't have the gun, right?
A. Yes.
Q. You knew that you had given the gun to Mr. Kempton,
right?
A. At that time I told them I think I threw it away.
Q. Okay. You think maybe the first time they asked about
the gun you just said you threw it away?
A. Yes.
Q. That was a lie, wasn't it?
A. Yes.
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Q. Or is that the truth as you believed it at the time?
A. I just didn't want to talk to them about it until I
talked to a lawyer.
Q. You didn't tell them that, did you? You didn't tell them
I don't want to talk to you until I talk to a lawyer.
You told them the gun had worn out and jammed and
you gave them a very elaborate story about how you took it
apart and threw it against the wall and put it in the garbage
dumpster and for all you know the garbage took it. Isn't
that what you told them?
A. Yes.
Q. And in fact, during these various statements in which law
enforcement is talking to you about what happened to the gun,
there was another time where you simply said that BJ Kempton
was there when you got rid of the gun, right? Did you tell
them that?
A. Yes.
Q. And you told him that Mr. Kempton disposed of the gun?
A. No.
Q. What did you tell them about Mr. Kempton's role in the
disposition of the gun?
A. He was just there when I threw it in the garbage.
Q. Is that the way you remembered it back then?
A. Yes.
Q. And is it true that while you were being interviewed by
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agents for various law enforcement agencies they kept
stressing to you the importance of telling the truth, isn't
that right?
A. Yes.
Q. And isn't there a time in one of the statements where you
were basically told that your role in this offense could be
accessory to murder?
A. Yes.
Q. And they spelled out the penalties that would be
applicable to you if you were implicated as being an
accessory to a murder?
A. Yes.
Q. And what would happen to you, how many years in prison
you could get, like up to twenty years in prison; isn't that
true?
A. They just said I could get a lot of time.
Q. And they told you during these interviews that they
believed that your weapon was used in these murders, right?
A. Yes.
Q. And even after all that you didn't tell them the truth,
did you --
A. No.
Q. About what happened to the gun, right?
A. No.
Q. You continued to lie, or were you telling the truth as
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you remembered it back then?
A. As I remembered it.
Q. So you still told them after all that that you got rid of
the gun, right?
A. Yeah.
Q. Did there come a time while you were being interviewed by
Sergeant Breen that you made reference to something that
either a Nate or a Nate Warner or somebody else had told you
about all this? Do you remember that? Do you remember when
you were talking to Sergeant Breen --
A. Yes.
Q. -- you were telling him you had some information provided
by a Nate Warner, right?
A. Yeah.
Q. Do you remember that?
A. Uh-huh.
Q. Did you tell him something about you were having dreams,
or you were having recollections about things that you
weren't sure of, but maybe you remembered some things about
the homicide? Do you remember that?
A. It wasn't like that. I was just telling them that I had
to sit down and think and remember. That was a long time
ago.
Q. Well, for the benefit of counsel, statement 455, page 9,
during some questioning that took place -- first of all, let
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me just be fair to you.
Do you remember giving a recorded statement to
Sergeant Breen on March 14th, 2006?
A. Yeah.
Q. That is where you sat down and they had a recorder and
they talked to you about immunity and all this other stuff.
Do you remember that?
A. Yes.
Q. On page 9, after a long answer, you say, "And I was like,
I understand, I don't want to go to jail either for something
we can't, you know, didn't do, but, I mean, I think I'm
remembering, it's just I can't remember. I can kind of
remember Hoover telling me, but I just can't remember where
we were or like that, and that's where I'm -- I get confused.
So I can't, you know, it's like sometimes like my dreams and
everything, like I do so many like drinking and drugs, and
like sometimes it's hard for me to know, you know."
Do you remember making that statement during the
interview about your ability to recall these events?
A. Yes.
Q. Is that true?
A. At the time.
Q. That you were confused and you had dreams and you had
been drinking and you had been doing drugs and you couldn't
sometimes tell reality from fiction. Isn't that true?
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A. That's why I sobered up.
Q. Sergeant Breen asked you to keep the two separate, do you
remember that, your dreams from your reality?
A. Yes.
Q. Do you remember that specifically? And you said, "Yeah,
and, you know, it just kind of fades in and out, but like I
can remember little things."
Do you remember that answer?
A. Yes.
Q. Now you testified today fairly clearly that you
remembered the shooting and that shortly thereafter
Mr. Hoover drives up, you meet him at the top of the
driveway, and he tells you all about his involvement in these
shootings. Do you remember your testimony?
A. Yes.
Q. When was the first time you ever said to law enforcement
that you remembered the sequence of events to be you knew
about the shootings and within five business days you had a
conversation with Mr. Hoover in which he admitted to all
these things you said he admitted to?
Do you remember when the first time you made that
statement to law enforcement was?
A. In Council Bluffs.
Q. In your very first interview after --
A. Second.
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Q. Second. All right. Do you remember during the interview
we just discussed with Sergeant Breen, for the benefit of
counsel it's statement 455, page 10, Sergeant Breen making
the following comments to you during the interview?
Sergeant Breen, "And we don't want anybody to go to
jail. I mean, there is one person we believe is responsible
for this murder. We think that person needs to go to jail
obviously. The other people who were either just there or,
you know, brought the gun, or got rid of the gun, that kind
of thing, we are not as concerned about. But it's very
important that they tell the truth."
Do you remember that statement being made?
A. I remember a statement like that.
Q. Something like that?
A. Word for word I can't remember.
Q. Did you believe at that time that you had done something
wrong that would cause you to be prosecuted to go to jail?
A. Yes.
Q. And what did you believe you had done wrong that would
cause you to be prosecuted and could go the jail?
A. Handing him the gun.
Q. So in your own mind you thought providing the weapon
under those circumstances put you in jeopardy of going to
jail?
A. Yes.
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Q. Did somebody tell you that? Did law enforcement tell you
that? Did a lawyer tell you that? What?
A. I just thought it.
Q. Now, during this interview with Sergeant Breen, once
again the subject returned to the gun.
Do you recall talking about the gun several times
during that interview?
A. Yes.
Q. All right. And Sergeant Breen -- just give me a second
here to get the page.
I'm trying to be fair to you and not cut this up too
much, and there was some discussion about the gun and
Sergeant Breen is just talking.
And then you say, "I think it was -- I didn't throw
my gun away."
And Sergeant Breen says, "Pardon?"
You say, "I didn't throw my gun away. Hoover got
rid of it. I remember now."
Do you remember that statement?
A. Yes.
Q. Do you remember that statement coming within two
questions of Sergeant Breen telling you that you didn't need
to worry about going to jail, that he was only looking at the
people who they thought were responsible for the murders?
A. I don't know how many questions there was.
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Q. You don't remember whether they were close in time? Do
you remember the two questions being asked?
A. Yes.
Q. Then he asked, "How did he get rid of it?"
And you said, "I don't know, because I remember him
telling, telling me I got rid of the gun. Yeah, he got rid
of the gun and I remember Hoover was the only one who knows
where the gun is, it was BJ and BJ -- is there another BJ?"
Answer, "Yes."
Do you remember giving that answer to that question
about the disposition of the gun in that statement?
A. What was that again?
Q. I'll just read it again. You say, "I didn't throw my gun
away. Hoover got rid of it. I remember now."
Sergeant Breen, "How did he get rid of it?"
Your answer, "I don't know, because I remember him
telling, telling me I got rid of the gun. Yeah, he said he
got rid of the gun and I remember Hoover was the only one
that knows where that gun is. It was BJ and BJ. Is there
another BJ?"
And Sergeant Breen says, "Yes."
Do you remember giving that answer to describe the
disposition of the gun?
A. Yeah, kind of.
Q. Are you saying that because I just read it to you, or do
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you remember that?
A. I remember. I don't remember word for word.
Q. You told us about the conversation at the top of the
driveway in which Mr. Hoover said all these things to you.
Is it true that earlier in your statement you had
confused what Mr. Warner may have said to you with things
that Mr. Hoover may have said to you?
A. Warner who?
Q. Nate?
A. Oh, no.
Q. You never were confused between what Mr. Warner -- do I
have his name right?
A. Nate Warner.
Q. You were never confused during the statements between
what Mr. Warner may have said and what Mr. Hoover had said?
A. No.
Q. For the benefit of counsel, statement 455, page 9, a
little further on from the earlier question I read about
keeping the your dreams and your reality separate, you say,
"Yeah, and, you know, it just kind of fades in and out."
You remember that? I read that to you a little bit?
A. Uh-huh.
Q. And you're talking about what Hoover said up at the
mailbox and Sergeant Breen says, "And what did he tell you?"
And your answer is, "Well, like he did this and this
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and that, did the murders and stuff, the killings and
whatever, and it was over like some, like the drug thing, but
I mean it was just me and Hoover up there, that's what I --
what I mean -- like I don't know if it was like -- that's why
I'm getting it confused, because I want to find the spot.
Like I'm pretty sure he told me as I -- after I talked to
Nate and everything had been running through my head, because
I knew you guys were going to come back after Nate went to
talk to you, so I've been trying to figure it out, but I
can't. I can't even figure out when I talked to Nate about
it, I guess."
Do you remember giving that answer?
A. Yes.
Q. So are you telling us today that when you tell us about
what you think Mr. Hoover -- Mr. Hoover may have said that
you are not confusing it with things that maybe this Nate
Warner had told you at the time?
A. No.
Q. So your statement back then that you were confused, was
that a lie?
A. No.
Q. So which is it?
A. I told Nate and Nate came back and told me that I told
him. I can't remember telling him.
Q. Can we agree you were talking to other people to try to
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figure out what it is you should tell the police about what
you knew?
A. Nate came to me and just told me that the cops were
looking for him and I said go talk to them and tell them the
truth.
Q. What were you confused about back there in the statement
you gave the Sergeant Breen about what Nate had said, or do
you remember?
A. I remember. It just took time to remember. It was nine
years ago.
Q. Now, Mr. Everett asked you some questions about something
that Mr. Kempton may have said to you about all this, and I
want to ask you some questions about that.
Do you have that in your mind right now, that is
what you remember Mr. Kempton telling you about what happened
that night?
A. Yes.
Q. Do you have that, because I'm changing subjects on you
and I'm not trying to trip you up, I want to give you fair
warning that I'm changing topics.
So now I want to talk to you about what Mr. Kempton
told you and you answered that question for Mr. Everett --
A. Yes.
Q. All right. This is going to take a while, so --
A. That's fine.
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Q. I will read this as best I can, and if I read it too fast
you let me know and we will go it over little bit by little
bit.
A. Okay.
Q. As a matter of fact, I may do that anyway. For the
benefit of counsel, statement 455 at page 11.
Sergeant Breen asked you, "What did BJ tell you
though?
And you gave the following answer, and what I am
going to do is I am going to read a sentence and you tell me
if you remember giving that answer, okay?
A. Yes.
Q. "Just that he was scared and everything about what
happened and I remember looking at him and saying what the
hell are you talking about, because that was all -- and I
was, you know, really high, and then he was like, well, what,
you know, we did."
Do you remember that part of it?
A. Yes.
Q. "And he told -- he didn't -- he didn't say that he killed
them or anything like that, or any of that. He just said
that we did."
Do you remember him saying that?
A. We as in them?
Q. Well, this is your statement. Do you remember saying
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that to Sergeant Breen in your statement?
A. Yeah, we as in them.
Q. I'm just asking you. Do you want me to read it again?
A. No.
Q. "And, and then I asked, I don't know how the conversation
-- but he did come up with what Hoover did, Hoover and I did
and all that, yeah, and then he said, he said we went back to
-- he said he was the -- he said he was scared because he
went back to the apartment."
Do you remember telling that to Sergeant Breen about
what Mr. Kempton said to you?
A. Yes.
Q. Does that sound familiar?
A. He went back to the apartment.
Q. Is this all kind of coming back to you now exactly what
he said to you?
A. Yeah.
Q. "He went back to the apartment to check the guy's pockets
for the money, yeah, yeah, and he went back, he said he
couldn't find the money, because he told me, he said he
thought he seen the money in the guy's hands before
everything happened, and he said they sat in the apartment."
Do you remember saying that to Sergeant Breen --
A. Yeah.
Q. -- about what Mr. Kempton said to you?
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A. Yes.
Q. "BJ told me more. He said they sat in the apartment and
waited for this guy for hours in his own apartment while he
went to get some (inaudible) or some weed or something and
when they came back he said Hoover got all mad and something
and that's what -- yeah, Hoover got all mad and where does
the pillow come in, question mark?"
Do you remember saying that?
A. Yes.
Q. Did you say to Sergeant Breen, "The guy lunged at Hoover
or something, because Hoover pulled out the gun and the guy
lunged at him, and that's what happened, I think, so one of
the guys lunged, that's when they said Hoover shot him and
maybe Hoover told me that."
Do you remember saying that?
A. Yes.
Q. "Yeah, Hoover said the guy lunged at him and grabbed the
barrel of the gun and there was like, I think there was the
black guy, yeah, maybe the black guy lunged, and maybe he
shot the black guy and the white guy lunged, yeah, one of
them lunged, grabbed the gun and they struggled and both BJs
then helped or something, they were just -- they were stunned
or they just stood there or something."
Do you remember telling Sergeant Breen that's what
BJ told you?
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A. Yes.
Q. "Can't remember if Hoover told me that or BJ told me
that."
Do you remember that statement to Sergeant Breen?
A. Yes.
Q. "I didn't ever talk to the other (inaudible) the other
guy. I think I seen him (inaudible) maybe ton," I guess I
don't know what that means.
"I don't even know how I know him and that, but I
know they were stunned or something, and something about a
pillow maybe. I don't know if it was the first guy that
lunged or -- and this is just (inaudible). I'm pretty sure
Jeffrey told me that. I think BJ -- maybe the whole
conversation, instead of having had it with BJ was with
Jeffrey. I don't know."
A. Yes.
Q. "But I know when I'm having it, I know, I know I had the
conversation with one of them, and Hoover said he took the
gun apart. I remember that. I remember he's the only one
that knows, but I told you that, didn't I say that already?"
Is that an accurate account of what Mr. Kempton told
you as you related it to Sergeant Breen? Was that true what
you said?
A. Yes.
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54
Q. Is that what Mr. Kempton said?
A. Not all of that. Sounds like I was talking a lot, too,
through that. I don't think that Kempton told me like all
that.
Q. Is it clear to you that I was reading what the report
suggests are your own words?
A. Yes.
Q. So you're not saying that I was reading somebody else's
words?
A. No.
Q. You said the words, but it's not clear if you were saying
what you remember some --
A. Yes.
Q. Some specific person told you or whether you're just
adding things?
A. It sounds like I was remembering stuff myself and what BJ
was telling me.
Q. And as I recall, all of that came about, this
conversation with BJ came about when you had gotten high and
wanted to go up and buy some jalapeno hot dogs at the corner
store; is that right?
A. I don't think I got high that time.
Q. Well, let's see.
A. I think I was hung over.
Q. Hung over from being high?
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55
A. And from drinking.
Q. So are you telling us that what I just read to you, that
you told Sergeant Breen as part of your cooperation with law
enforcement may have been affected by the fact that you were
hung over or affected by drugs or alcohol?
A. No.
Q. Okay. Now I asked you early on about whether Mr. Kempton
showed up alone to pick up this gun. Do you remember?
A. Yes.
Q. And you said maybe you don't remember whether he was
alone or not.
A. Yeah.
Q. Do you remember in that same statement Sergeant Breen
asking you the following question?
"And do you remember how the arrangements were made
for BJ to come pick up, pick that gun up?"
Do you remember giving the following answer?
"He came with somebody else. That's what I'm
thinking of. He just, he came in, he came with somebody
else. I don't know who he came with. There was one other
person, and it was just a -- Hoover called me and asked if he
could use it and BJ was stopping by to grab it, yeah."
A. Yes.
Q. And was that truthful?
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56
A. No, because I couldn't really remember if he was with
somebody else.
Q. What caused you to tell law enforcement during your
statement then that you believed somebody else was with
Mr. Kempton?
A. Because Kempton opened the passenger door and set the gun
in, so I thought he just got in that side, because I just
handed him the gun and walked off.
Q. What causes you today, or maybe back then, to think that
Mr. Kempton was with somebody else is because he took the gun
from you to the passenger door?
A. He was already out of the car when I came out, and I just
handed him the gun and walked away.
I didn't look into the car, but I remember him going
to the passenger side.
Q. This twenty-two that you identified as being similar to
the one in the photographs and containing this banana clip,
you were familiar with that weapon, it was yours, right?
A. Yes.
Q. And you had fired it on numerous occasions?
A. Yes.
Q. Did you load it?
A. Load the gun?
Q. Before you gave it to Mr. Kempton, did you load it?
A. No.
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57
Q. It was empty?
A. I can't remember if there was some in the clip or not.
Q. Once again, it's one of these questions, I will ask you
this way, as you sit here today, based upon your
recollection, were there bullets in that gun when you gave it
to Mr. Kempton?
Q. As you sit here today, do you remember whether you loaded
bullets in that gun before you gave it to Mr. Kempton?
Q. One way or the other?
A. I could have gave him a box of shells. I can't remember
everything I gave him.
Q. I understand it has been a long time and given the
circumstances I don't think anybody expects perfect memory.
A. Yes.
Q. If you had loaded shells into that gun during that time
period in June of 1997, would you have put the shells into
the gun using your bare hands?
A. Yes.
Q. You wouldn't have worn any gloves or anything like that?
A. No.
Q. You would have just grabbed them from the box and put
them in the --
A. Yes.
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58
Q. Do you remember giving Mr. Kempton any ammunition in
addition to the giving him the gun?
A. No.
Q. Now, when the gun fired, it ejected the shell casing, is
that right?
A. Yes.
Q. I can't put the picture together with the gun, and I'm
not going to try to, but does the banana clip go in the
bottom of gun? Is that right?
A. Yes.
Q. So if I were holding the gun, the banana clip would come
down and curve outward?
A. Towards the front.
Q. As I pull the trigger and the bullet was ejected, this
was an automatic weapon, is that right?
A. Semiautomatic.
Q. And it would eject the shell casing, is that right?
A. Yes.
Q. And then automatically load another one?
A. Yes.
Q. Which way did this particular gun eject its shell casing?
A. I think to the right.
Q. To the right, and did you fire it enough times to watch
about how far the shell casings would normally go and what
direction they would go after you pulled the trigger?
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59
A. They pop out whichever way. Sometimes they go straight
up; sometimes they go straight to the side.
Q. They don't have a consistent pattern? They don't
consistently go one way? They don't go to the left, do they?
A. No.
Q. They would go somewhere out and to the right?
A. Yes.
Q. Would be it up and to the right or down to the right?
A. Just different ways. Sometimes the same way; sometimes
the opposite way.
Q. What would determine, if you know, why it wouldn't go out
consistently the same way, the gun being a mechanical
instrument?
A. I guess if you have the gun kind of turned cocked-eyed or
something.
Q. Let me ask it as simply as I can. I know you are not an
expert, but it's your gun and you are perhaps the best person
to ask.
If you kept the gun in a constant position and you
simply pulled the trigger, didn't move the gun, didn't turn
the gun, didn't change the direction of the gun, where would
the shell casings generally go?
A. Just off the right side.
Q. Just generally off the right side?
A. Yes.
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60
Q. A few feet away? Ten feet away?
A. I don't know.
Q. You have no idea? Sir, in the past ten years have you
ever been convicted of a felony?
A. No.
Q. Have you ever been convicted of a misdemeanor involving
dishonesty?
A. Dishonesty?
Q. Something involving dishonesty, false statement,
something like that?
A. No.
Q. Were any charges ever brought against you in this case?
A. This case?
Q. Yes.
A. No.
Q. Were any other charges pending against you that were
influenced by your participation in this case?
A. No.
Q. Do you have any understanding with anybody from law
enforcement as to whether you'll be prosecuted for anything
that happened in this case independent of your testimony here
today?
A. Just that if I don't tell the truth.
Q. So the only thing that your agreement deals with is being
prosecuted for false statements in this case?
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61
A. Yes.
Q. You won't be prosecuted for any false statements you gave
to the police; is that right?
A. No.
Q. You wouldn't be prosecuted for any of your involvement in
being a potential accessory to the murder; is that right?
A. I just won't be prosecuted if I tell the truth.
Q. You won't be prosecuted for anything, is that right,
except for whatever may come from your testimony in this
case?
A. I just know if I tell the truth I won't be prosecuted.
MR. CREAGER: May I have a second, Your Honor? We
don't have any further questions of this witness, Your Honor.
Thank you.
THE COURT: Mr. Everett?
REDIRECT EXAMINATION
BY MR. EVERETT:
Q. Mr. Creager was asking you some questions and reading to
you from some of your answers that you gave to the police in
a statement back in March of 2006. Do you remember that?
A. Yes.
Q. And it sounded from one of the answers that he read to
you that you did tell the police in March of 2006 that
Jeff Hoover told you he did the killings and that it was over
drugs?
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STEVEN McCAUL - REDIRECT EXAMINATION
62
A. Yes.
Q. And do you remember telling the police that in March of
2006?
A. Yes.
Q. The gun that you gave to Brian Kempton, it sounds like
you don't remember one way or the other whether you loaded
that or not?
A. Yeah.
Q. It may have already been loaded?
A. Yeah, it could have been loaded already.
Q. Was Mr. Hoover a friend of yours back in 1997?
A. Yes.
Q. Did you still consider him a friend two years ago?
A. Yes.
Q. Do you still consider him a friend today?
A. Yes.
Q. And until recently have you tried to protect him by not
telling the truth to the police?
A. Yes.
Q. And have you tried to protect him by telling the police
you couldn't remember certain things?
A. Yes.
Q. But have you told this jury the truth here today?
A. Yes.
MR. EVERETT: Nothing further, Your Honor.
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THE COURT: Thank you, sir. You may step down.
Sir, you'll need to keep in contact with the United States
Attorney's Office because it's possible you will be called to
testify again, so you keep in contact with them, please, but
you can leave now.
C-E-R-T-I-F-I-C-A-T-E.
I, Allan G. Kuhlman, do hereby certify that the
foregoing transcript is a true and accurate transcription to
the best of my ability from the digital recording of the
proceedings held in this matter.
In witness whereof I hereunto affix my signature on
May 30, 2007.
/s/Allan G. Kuhlman
Allan G. Kuhlman
I-N-D-E-X
Direct Cross Redirect
WITNESSES:
FOR THE PLAINTIFF:
Steven McCaul................. 2 31 61
Exhibits: OFFERED RULED ON
77 Proffer Agreement.......... 4 4
78 Picture of Gun............. 10 10
79 Picture of Banana Clip..... 11 11

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