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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA HON. LAWRENCE J. O'NEILL UNITED STATES OF AMERICA, Plaintiff, vs. JARED JAMES DOOLEY, Defendant. Fresno, California ) ) 1:08-cr-8 LJO ) ) SENTENCING ) ) Testimony of Van Nakagawara ) ) ) ) Friday, October 10, 2008

REPORTER'S PARTIAL TRANSCRIPT OF PROCEEDINGS

REPORTED BY:

PEGGY J. CRAWFORD, RDR, CRR, Official Reporter

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APPEARANCES OF COUNSEL: For the Government: KAREN ESCOBAR Assistant U.S. Attorney 2500 Tulare Street, Rm. 4401 Fresno, California 93721 LAW OFFICES OF DAVID TORRES 1318 K Street Bakersfield, CA 93301 BY: DAVID TORRES

For the Defendant:

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INDEX GOVERNMENT'S WITNESSES: VAN NAKAGAWARA DIRECT EXAMINATION BY MS. ESCOBAR VOIR DIRE EXAMINATION BY MR. TORRES FURTHER DIRECT EXAMINATION BY MS. ESCOBAR CROSS-EXAMINATION BY MR. TORRES 4 4 6 9 20

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Friday, October 10, 2008

Fresno, California

*

* MS. ESCOBAR:

* Dr. Nakagawara. VAN NAKAGAWARA,

*

*

called as a witness on behalf of the Government, having been first duly sworn, testified as follows: THE COURT: Please take the witness stand, if you

would, and then tell us your name. THE WITNESS: Good morning, I'm Van Nakagawara. DIRECT EXAMINATION BY MS. ESCOBAR: Q. A. Would you state your occupation for the record? Yes. I'm a research optometrist with the Federal Aviation

Administration, Civil Aerospace Medical Institute, in Oklahoma City. Q. A. How long have you been employed? I started working with the FAA in 1986. That's been a

little over 22 years. Q. Do you have experience in the impact of lasers on aviation

safety? A. Yes. I have actually been working on laser issues for the I have been involved with the Society of

FAA since 1994.

Automotive Engineers, Laser Safety Hazard Subcommittee, since that time. I have actually been the Vice-Chairman of that

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group for a number of years, and now I'm currently the Chairman. I have actually worked with the American National Standards Institute, which has a standard on outdoor lasers, and I have been working with them for a couple of years, and I'm now the secretary of that group. Q. If you would, what is the nature of your training and

experience, in addition to those affiliations you have just stated? A. Q. A. I'm sorry, I'm not sure what the question is. Your educational experience. Oh, educational experience. I'm a research op -- I'm an

optometrist.

I have actually worked -- also a member of the

American Optometric Association's Aviation Vision Committee. I'm actually also been a part of the International Civil Aviation Organization, which established laser safety guidelines for the international community, aviation community as well. THE COURT: Are you asking that the curriculum vitae

that you have provided to the Court be marked as an exhibit? MS. ESCOBAR: It can be marked. I'm not necessarily

introducing it, but I would submit that he is qualified to testify as an expert in the effect of lasers in aviation safety, in relation to aviation safety. MR. TORRES: I will submit that issue to the Court.

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THE COURT: MR. TORRES: THE COURT: limited issue? MR. TORRES: THE COURT:

So you are not stipulating? No. Do you wish to voir dire him on that

Very briefly. Okay.

VOIR DIRE EXAMINATION BY MR. TORRES: Q. With respect to the training, you testified that you have

been involved in laser type of research since 1984; is that correct? A. Q. A. That's correct -- 1986. 1986? 1986, I'm sorry. THE COURT: I'm wrong. Wait just a second. You correct me if

I thought your testimony was that you have been a

research optometrist with FAA since '86, but with regards to lasers -THE WITNESS: THE COURT: Go ahead. BY MR. TORRES: Q. 1994, okay. The type of laser experience that you have Since 1994.

Thank you.

undergone initially, what was that? A. I have been familiar with lasers certainly as far as

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medical lasers are concerned. Q. A. Okay. I use lasers, for example, for correcting refractive

surgery, for glaucoma treatments, et cetera. Q. And I have had an opportunity to review your curriculum

vitae, and I see you have done several articles with respect to LASIK surgery, refractive surgery? A. Q. Yes. Have you ever been involved with any type of research

concerning military lasers? A. Q. No, I have not. Have you ever been involved with any type of research

concerning lasers or the detrimental effect of lasers? A. Q. A. Yes, I have. And that's in the course of your LASIK -No, no. Actually, we actually looked at the effects of

LASIK refractive surgery regarding performance on pilots, but we also have done some research looking at the effect of laser lights on pilot performance. We did a study in conjunction, actually, with the military, looking at the effect of laser light on pilot performance with a 727 Boeing simulator. Q. And do you recall what type of laser was used in that

particular scientific experience? A. It was YAG laser, green, 532 nanometer laser, similar to

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the laser color that was used in this laser pointer incident. Q. A. Q. A. Have you seen the particular laser in this case? No, I have not. You have never physically observed it, have you? No, I have not. The laser we are talking about with

regard to this incident here? Q. A. That's correct, sir. No. I did see the report that was done by Wes Marshall's

group. Q. A. Q. A. Q. That would be the Maryland group? That's correct. The Aberdeen Group? Yes. With respect to that particular report that you saw,

Doctor -- well, strike that. With respect to this particular laser, have you personally performed any type of test with this particular type of laser? A. Q. No, I have not. And when you also talk about the effects of lasers on

pilots with respect to LASIK and refractory type of operations, we are talking the LASIK, which is a laser which is at a very close distance; is that correct? A. Q. That's correct, yes. Sometimes an inch or less?

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A.

Yes.

It's actually a laser that is used to modify the

cornea of the eye, and we were very much interested to see how the effect that would have, that modification would have on pilot performance. MR. TORRES: Thank you. Your Honor, I'm prepared to

submit it to the Court at this time. THE COURT: granted. FURTHER DIRECT EXAMINATION BY MS. ESCOBAR: Q. A. Doctor, how do lasers affect aviation safety? Well, it can have a huge effect. Since I have been The request by the U.S. attorney is

involved with it in 1994, primarily the concern was for these demonstration lasers, these outdoor laser shows that were occurring. A lot of them were occurring in places like

entertainment venues, Las Vegas or in Mississippi in the casino area, down in Biloxi, but these lasers were being utilized to draw people into the casinos or into these entertainment venues. And at that time, the exposure levels could be as long as you did not exceed the maximum permissible exposure level for a laser, which is for biological damage, you can actually shine a laser into the sky. However, what they found

out is that people were being exposed to low levels of laser exposure, well below the MPE or Maximum Permissible Exposure

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for damage, and it actually resulted in visual performance loss. It could result actually in glare, flash blindness and

after image effects. Q. Specifically, with respect to the impact or the effect of

the laser illumination on pilots, what are some of the problems associated with the illumination of an aircraft? A. Well, it can be a very serious thing, I mean especially Somewhere

when the pilot is in a critical phase of flight.

about 10,000 feet above the ground, it is a sterile cockpit environment, there is no communication going on because they want to focus in on the approach or landing of the aircraft itself. So we have actually tried to protect the pilot from exposures and we have actually established zones around an airport to limit the exposure level to a pilot during those critical phases of flight. Q. Was the phase of flight in this case -- you heard the He was at 500 feet. Was that a

testimony of the pilot. sensitive zone? A.

At 500 feet, and he wasn't considered to be in any kind of

a zone because he wasn't near the airport, I don't believe. But if he had been near an airport, he would have been in a laser-free zone, and that level of exposure is quite low, somewhere about 50 nanowatts per centimeter squared, according to the FAA order we have.

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Q.

In the laser-free zone, what is considered critical in

terms of laser exposure? A. Like I said, it is at 50 nanowatts per centimeter squared.

The zone itself is two miles from each side of the runway, the center of the runway. It is actually three miles beyond the

extension of the runway itself, and it extends up to 2,000 feet above the ground. Q. A. Q. So the pilot here was at 500 feet? That's correct. With his exposure by the green laser involved, do you

agree with Wesley Marshall, who prepared a report which is attached to the government's response, that that would have posed a potential problem to the pilot? A. Yes. I think so. I have known Wesley Marshall since the He is one

very beginning of working with lasers, since 1994.

of the foremost experts on lasers and was a former Chairman of the ANSI Z136.6 Committee, American National Standards Institute. And I think according to his report that came from his group, the laser itself was hazardous. That's why it has

a "Danger" located on its -- on the laser itself, and which means -MR. TORRES: THE COURT: statement. Objection, speculation, your Honor. Sustained. No foundation for that

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MS. ESCOBAR:

Your Honor, he has reviewed the report,

which contains the information pertaining to the laser. THE COURT: BY MS. ESCOBAR: Q. A. Q. A. Q. A. Q. A. Q. A. Q. Have you reviewed Wesley Marshall's report? Yes, I have. His examination of the laser? Yes. The specific laser that was used in this case? Yes. And he characterized the laser as a Class 3A laser? That's correct. What does that mean? It means that it's below 5 milliwatts of power. And what does that mean in terms of potential impact on He is going to have to testify to that.

the -- on vision? A. If you are -- if you have an illumination that can exceed

the MPE, if it is less than 2.5 microwatts per centimeter squared for a quarter-second duration, you can have a caution level on it, a label on it. If it exceeds that, which means that you can actually cause some sort of damage to the eye, that's the reason they put a "Danger" sign on it. That's the reason it has a

"Danger" on the laser itself. MS. ESCOBAR: For the record, the exhibit was

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attached to the government's response as Government's Exhibit D, which contains a photograph at Bates stamp -- the photograph didn't -- my copy is not so hot, but it's at Bates stamp 176. And it does have --

BY MS. ESCOBAR: Q. A. Q. It has a danger label right on the laser? Yes, yes. And based upon the information, based upon the report and

the information known to you regarding this case, was this a dangerous situation for the pilot? A. Well, the thing about it is that the pilot was at a very That's always dangerous. Some of our experience

low level.

reading different reports that have occurred, certainly people at low levels of flight altitude can be a real problem, because you don't have much room for making some sort of compensatory maneuver, and you are low to the ground. You You

certainly could hit something or something flying around.

are trying to be vigilant, trying to see and avoid, and that could be compromised. MR. TORRES: I object to the last response, it's Move to strike.

nonresponsive, speculative. THE COURT:

The last portion was not responsive to

the question that was asked, and it is stricken on that ground only. ///

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BY MS. ESCOBAR: Q. The aircraft involved was a helicopter. Does the lasering

of a helicopter, is that more problematic? THE COURT: Than what? Than a general aircraft.

MS. ESCOBAR: BY MS. ESCOBAR: Q. A. A 747, for example.

Well, a helicopter can be more of a problem, primarily And any time

because it's usually hovering low to the ground.

the aircraft is low to the ground, you are going to have some issues with that. And from our reports that we have seen,

there have been numerous incidences in which helicopters have been hit by lasers, both in -- both by the, I guess sheriff department or police helicopters as well as Medivac helicopters as well. Q. Has it been a pervasive problem, the lasering of law

enforcement aircraft? A. The number of incidents have increased dramatically. We

have had somewhere close to a 900 percent increase since 2004 to 2006, at least that's what our data is showing, and a lot of those are occurring in the Western Pacific Region, which is -- includes California, Nevada, Arizona and Hawaii. MR. TORRES: Your Honor, I'm going to object to that

last, with respect to the percentage or the percentage based on foundation and speculation. There may have been a variety

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of other types of incidents that were studying at the time. THE COURT: The objection on foundation is held in

abeyance pending this next question and answer, laying the foundation of how he knows. BY MS. ESCOBAR: Q. Are pilots required to submit reports to the FAA when they

have been lasered? A. There is actually an advisory circulative that was

established in January 2005 in which pilots are asked to submit in a report on lasers when they have been lasered or illuminated by a laser. Q. Your data concerning the pervasiveness of laser

illuminations is based specifically on the reports generated by the pilots? A. Q. A. Yeah. Or the airports? They may come from airports, they may come from Internet We try to collect all of the data from a

sources as well.

variety of different sources. THE COURT: BY MS. ESCOBAR: Q. Does your -THE COURT: BY MS. ESCOBAR: Q. Does your data indicate that the incidents of laser The objection is overruled. Overruled.

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illuminations is higher in the Western portion of the United States? A. Q. A. Q. A. Q. Yes. The Western Region is most prevalent.

Significantly higher in the Western Region? Yes, it is. And California is higher than the other Western states? That's correct. The -- back to the problems posed when a helicopter is

lasered, is there anything unique about the shape or configuration of the window that would increase the trauma to the eye of a pilot driving a helicopter? A. A helicopter usually has like a bubble type of canopy,

and, you know, so there is more level of exposure to the light itself. You can have scattering that occurs when the laser

light hits the canopy or windshield. You also have scattering occurred which can affect vision performance when you hit like optometric lenses, like glasses, or if it goes into the eye, if you have any cataract or opacities in the lens or in the cornea of the eye itself, which can result in vision performance losses. So because of the canopy itself, yes, it can be an issue, yes. Q. And the fact that the pilot's partner in this case was

wearing night vision goggles, how does -- would the green laser illumination have affected him?

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A.

Well, green laser light is -- has much stronger effect on The eye is somewhere about 30 to 35

human -- the human eye.

times more sensitive to green light than it is to red light. With a night vision goggle, what happens is that there is a light application system, so when the night vision goggle is hit by light, it would actually bloom up, and it can be -- so it can be very intense as far as the exposure is concerned. MR. TORRES: Excuse me. Objection, your Honor.

Foundation, speculation as to whether or not that particular night device was being worn by the other individual. MS. ESCOBAR: Your Honor, the pilot testified that

his partner was wearing night vision goggles. THE COURT: What? MR. TORRES: There are different types of night I understand.

observation devices, and the question is whether or not he was actually wearing the type that he has testified to. THE COURT: specific. I don't think that the question was that But you can certainly

The objection is overruled.

take care of that on cross-examination. BY MS. ESCOBAR: Q. So is it your opinion that the wearing of night vision

goggles can worsen the effect of exposure to green laser? A. From what I have read and what I have studied, yes, it can It has been an issue in the past.

be a real issue.

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Certainly, that's one -- I think one of the things that was occurring was that in Desert Storm, lasers were actually used against our helicopter pilots that were using night vision goggles. Q. Is the use of laser generally a problem that has been

recognized and discussed at the legislative level with respect to the use of a laser as a dangerous weapon? A. Well, there was actually testimony before Congress by the So

Deputy Administrator, Nick Sabatini, several years ago.

it's been something that's been studied by Congress as well. Q. And have other countries taken measures with respect to --

or recognized the danger of the use of lasers as a weapon? A. Well, recently, I think in Australia, they have identified And

lasers in one of the provinces there as a lethal weapon.

they are actually trying to control now the importation of laser pointers into the country. So the -- unfortunately, the laser pointer incidences are increasing internationally, certainly in Canada, Australia, and in the UK. Q. Based upon your review of Wesley Marshall's report, and

which contains a discussion of the facts in this case, what is your opinion concerning the impact of the green laser used on the pilot and his passenger in this case? A. According to Wesley Marshall's analysis, this laser

pointer would have exceeded the critical flight zone exposure

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level up to about 2,000 feet.

And the pilot himself was

actually flying at 500 feet, so he was well within the critical flight zone exposure level, probably much more so than that, but at a very low level, actually at the laser-free zone level. Q. Did that create an aviation hazard? MR. TORRES: Excuse me. I want -- objection, your Speculation and

Honor, with respect to the last response. foundation. THE COURT: the admissibility. BY MS. ESCOBAR: Q. A. Q. A. Overruled.

It goes to the weight and not

Did that create an aviation or pose an aviation hazard? That could potentially, yes, pose a serious hazard. And specifically, what sort of hazard? Well, you could have -- we have had reports of pilots that

have been exposed to laser lights, similar to these, with laser pointers. eyes. They have actually reported shielding their

They have actually lost vision where they couldn't see

the runway or the instrument panel. We have had reports of people actually giving up control of the aircraft to another pilot because they were incapacitated. There have actually been reports of people not

being able to -- you know, perceptual loss, which resulted in performance loss.

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MS. ESCOBAR: questions. THE COURT:

Thank you.

I have no further

Cross? CROSS-EXAMINATION

BY MR. TORRES: Q. Doctor, the testimony that you just gave, was that based

upon a report? A. Q. Yes. Several reports that we have made. Correct, yes.

Earlier, I was asking, I made an objection with respect to

the night observation devices, correct? A. Q. Yes. And, again, having looked at your curriculum vitae, you

have had an opportunity to study -- well, you are familiar with night observation devices? A. Q. Some, yes. Would it be fair to say that the night observation devices

in Desert Storm are certainly obsolete with respect to the type they are using now? A. Q. Probably, yes. And when you talked about a certain light hitting these

night observation devices, there were some back in the day that would basically -- I don't want to say explode, but they would be rendered useless as a result of light being pointed into them, correct? A. Correct.

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Q.

And these days, night observation devices have a lot --

are a lot more specialized, they are a lot more sophisticated? A. I'm really not that familiar with the new current night

vision goggle systems. Q. So would it be fair to say that the gentleman that was

wearing -- you did not have an opportunity -A. Q. A. No. -- to review his night devices? No. MR. TORRES: BY MR. TORRES: Q. Doctor, did you personally have an opportunity to conduct Okay.

an examination of Deputy Ely? A. Q. No, I did not. Did you review any medical reports concerning this -- the

pain and discomfort that he sustained? A. Q. No, I did not. With respect to the other pilot, the other individual that

was with him, did you review any reports of his? A. No, I did not. MR. TORRES: questions. * * * * Okay. Your Honor, I have no further

(The proceedings were concluded at 12:00 p.m.)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Dated: 07/29/2009 /s/ Peggy J. Crawford PEGGY J. CRAWFORD, RDR-CRR I, PEGGY J. CRAWFORD, Official Reporter, do hereby certify the foregoing transcript as true and correct.

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