Posted by Diogenes, Wa. on February 24, 1999 at 18:02:53:
You know, Karen. I think you're on to something here and
I'm going to repeat it for the audience:
_________
Notice that Aquino's own lawyer stated he was "thrown out."
He was never criminally charged.
This was posted on Karen Jones' web site along with a series
of other court documents that Aquino objected to but which
will be posted at other sites, including this one. This
is an example of what these folks have been trying to
hide. You don't see this mentioned anywhere in Robert Hicks
books or any of the FMSF material, do you.
"Plaintiff was not titled because he the chief priest or the
high priest of the Temple of Set. It is completely irrelevant,
Your Honor. He was titled in this report of investigation because
the evidence shows that he committed indecent acts with a child,
and that he conspired with others to take this child away from
the day care center, take them to his apartment, and that's where
he sexually abused her."
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Hearing on Motions
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
- - - - - - - - - - - - - - -
MICHAEL A. AQUINO,
Plaintiff,
-vs- C.A. No. 90-1547-A
MICHAEL P.W. STONE,
Defendant.
-------------------------------
HEARING ON MOTIONS
May 31, 1991
Before: Claude M. Hilton, Judge
APPEARANCES:
Gary R. Myers, Counsel for the Plaintiff
Patrick Lisowski and Richard Parker, Counsel for Defendant
THE CLERK: Civil action 90-1547-A, Michael Aquino
versus the Honorable Michael P.W. Stone.
MR. PARKER: Good morning, Your Honor. Richard
Parker for the United States. With me is Major Patrick
Lisowski from the Army Litigation Division. Major Lisowski
is a member in good standing of the Bar of Pennsylvania.
Accordingly, I move his admission pro hac vice.
THE COURT: All right, the motion is granted. Who
wants to go force? You have both got motions for summary
judgment.
MR. MYERS: Your Honor, the plaintiff in
conversation with the defendant has agreed to go first. To
the extent necessary, I wonder if I might reserve two minutes
for rebuttal.
THE COURT: All right.
MR. MYERS: Your Honor, this is a case that elicits
immediate emotional response. It is a titling action by the
United States Army against a former active duty officer who
has been accused of heinous acts against small children,
conspiracy, sodomy, indecent acts against small children.
What makes it more different is the religious, is the
religion predicated upon the worship of Satan.
I want to say that with respect to this individual
and because there are multiple buzz words associated with
this particular case, it is imperative that the Court
recognize in Exhibit 13 the status and character of this
man. You will find there the efficiency reports of this man
through his military career. Each and every one is
outstanding. His last one refers to him as a man of the
highest moral and ethical standards. I believe that a review
of his military record will show that.
The church of which he is the head is the Temple of
Set. It has been recognized by the Internal Revenue
Service. There has been no secrecy associated with it.
The man is a Ph.D. in political science. He is an
intellectual. The dogma that he predicates his religion upon
comes from Egyptian and pre-Egyptian theology having to do
with the anti-Christ view of things. But nonetheless, not a
dogma that suggests abuse of children, animals or any other
form of heinous conduct is appropriate.
And I want to predicate all that I do today on
those two simple statements, because we are not dealing here
with an individual who has gone outside the mainstream of
American Society with regard to conduct. He has gone outside
the mainstream of American Society in a protected
constitutional fashion with respect to religion.
Now, the Government in their brief suggests that
although we have brought this suit as the plaintiff on a
privacy act, that it is an inappropriate vehicle and that the
APA should be used so that you are limited to an arbitrary
an capricious standard. We believe that you need not get to
the arbitrary and capricious issue. We believe that the
Privacy Act applies.
If one examines the case of Ryan versus the
Department of Justice decided by the Fourth Circuit, in 1979,
there you will find, Your Honor, that the exemption from the
Privacy Act which the Government relies upon was scrupulously
examined by the Fourth Circuit. That court concluded that
the exemption is only viable if the reasons for the exemption
apply to the particular case.
The reasons for the exemption of the Privacy Act in
this case as stated in the C.F.R. applicable to this case are
as follows: If there is an ongoing investigation. If there
are classified matters to be revealed. If there are
informants to be protected. If there are individual privacy
rights to be protected. If there are investigatory
techniques to be protected. None of those reasons apply to
this case.
This is an investigation that was completed, completely and
fully. Matters that were a part of the Privacy Act in the prior
investigation were given to the plaintiff upon discovery requests
for documents.
There is no ongoing investigation. This case comes
before you after the investigation is utterly and totally
completed. There are no confidential informants. No privacy
rights to be protected. No national secrets to be revealed.
So, we believe as the plaintiff that the appropriate forum
is the Privacy Act with its attendant damage provisions.
Moving now, if I may, Your Honor, to certain questions that
give rise to why we are here. You have read the briefs, I am
not going to belabor you with the facts. But it is more than
passing strange that the brief from the plaintiff, which laid
out with particularity egregious misconduct of the military in
this case, was not rebutted. Not rebutted.
There is no probable cause in this case, Your Honor, which
is the test, to conclude that this man has done anything.
The plaintiff through counsel has been able to identify three
separate and distinct alibis, all of which have held up.
The defendant in this case attempted to title the
plaintiff's wife based upon the same eyewitness testimony of
the little girl who is supposed to have been molested. And
yet that woman, Mrs. Aquino, was taken off the title block by
the Army, notwithstanding the eyewitness testimony of this
little girl.
I point out to you, Your Honor, that this case was a cause
celebre in the San Francisco Bay area and most of the west
coast. It received huge amounts of publicity. The FBI
San Francisco Police Department were inextricably involved in
it for month upon month. Nothing came of it. What did happen
after they closed their cases was that Senator Jesse Helms,
because of the high profile nature of my client, initiated an
inquiry to then Secretary Marsh regarding my client. And you
have Senator Helms' letter in front of you.
And I say this to you, Judge. Very simply, what happened
was this. A couple of parents who had a little girl decided
that Michael Aquino was a reasonable target. And the CID,
which is the Army investigative branch, in league with
their superiors started a campaign to make certain that
Senator Helms was satisfied and that this Satanism would be
eliminated from the Army. And that is exactly what
happened. And I stand on every line and sentence that you
have in that brief before you.
Now, as a result of all of this the parents of this
little girl have filed $3 million in claims from the United
States Government. There is not one other child at the
Presidio Day Care Center, not one other child out of a
multitude of nearly 20 who alleged abuse, who could identify
Michael Aquino or his wife other than this little girl who
was then three years old. And when did this little girl
identify Mike Aquino? Not in 1987 when all this happened,
when the FBI was there. Her parents said she identified him,
identified him supposedly in 1989.
Now, we are talking about the memory of a very small child.
And I ask you to take judicial notice at least of what two
and three-year-olds can and cannot remember.
There is not the slightest prospect, Your Honor, that my
client engaged in any form of misfeasance or malfeasance.
As an Army officer he was utterly superior, but they threw
him out. And the way they threw him out was this. He came
up for continuation as an AGR officer, meaning a National
Guard officer. The test for that was whether or not he was
fully qualified. And you will find a memo in the file, part
of the exhibits, showing that he clearly was fully
qualified. And there was a billet for him to fill.
But what the Army did was they advised this continuation
board that Michael Aquino had been flagged. Improper. The
only matter that is supposed to be before that continuation
board is his OMPF, which is basically his personnel file.
Improper. There is an interesting memorandum detailing the
scenario of events that occurred in the Aquino matter which
I have provided to the Court as an exhibit, which was obtained
under the Freedom of Information Act.
Judge, this is simply a case where there are no conspirators.
There never was any evidence that Michael Aquino was in any
way, shape or form associated with a Mr. Gary Hambright who
was at the Presidio Day Care Center. Mrs. Aquino was dropped
from the titling block for lack of probable cause. Who did
he conspire with? This child was examined by medical doctors
and found to be perfectly fit physically. Although she said
she was raped, although she said she was sodomized, there is
no evidence of that.
Michael Aquino could not have done this. This
child was only in Mr. Hambright's class in September and
October of 1987. And Michael Aquino was here in Washington
during that period of time.
What the CID did was they tried to figure out when
Aquino was in San Francisco and convert the facts to that
date. The only date that they found to be meaningful, June
10, plaintiff has provided an absolute alibi for that date.
Your Honor, my practice is limited to military
law. And I know the men who are making these decisions, and
they are not evil men. It is not the evil men we have to
worry about. It is the well-intentioned ones who bend to
pressure. And that is what has happened in this case. No
matter what standard you choose to employ, whether it be the
arbitrary and capricious standard because you do not feel
that the Privacy Act applies here, and we strenuously suggest
that it does, you must conclude, Your Honor, that it is
arbitrary and capricious, I say this respectfully of course,
arbitrary and capricious not to title Mrs. Aquino and to
title Dr. Aquino when the same little girl identified them
both.
No, there was an agenda here, Judge. The Army carried out
that agenda. They made certain that the man would never go
to trial because they titled him after the statute of
limitations ran. They had the best of all worlds. They
satisfied Senator Helms, they satisfied their own needs, and
they left this man with no career.
And that is what happened in this case, Judge. And
I believe that the factual representations we have made, all
of which are supported by documentation, none of which are
speculative, all of which are unrebutted by the Government,
are dispositive. Thank you.
THE COURT: All right.
MR. LISOWSKI: Your Honor, at the outset I would
like to say that the Government has not chosen to respond to
every allegation that plaintiff makes because the Government
feels very strongly that there is absolutely no credence to
most of those allegations at all. And that to respond to
those is not necessary.
The facts of the case are fairly straightforward.
This case comes down to two issues, Your Honor. Does the
Privacy Act exemption apply; and if so, were the Government's
actions arbitrary and capricious.
10
The Government agrees with plaintiff's counsel and plaintiff
has conceded that if the Privacy Act exemption does
apply, the (j)(2) exemption, then the arbitrary and capricious
standard is the correct one to apply in this case. And if that
is the correct standard under the APA, then plaintiff is
entitled to no damages. Plaintiff seeks the broader de novo
review, and he seeks the glimmer of hope that he can recover
some damages under the Privacy Act.
The Ryan case states that there are two requirements for a
proper exemption. First, that the secretary promulgate regulations,
which the Secretary of the Army has done in 32 C.F.R. 505.5.
And secondly, that those regulations state the reasons why
records are exempt. And the Army has also done that.
I think a case that is better on point here, Your Honor, is
the Wentz case that is cited in the Government brief. Ryan
involved a Privacy Act issue of access and wrongful disclosure.
The Wentz case involves a plaintiff who was seeking to amend a
law enforcement record, which is more directly on point here.
And in Wentz the Court noted that the (j)(2) exemption is a
general exemption which is designed to apply to a whole system
of records, which is the case here.
And the Court in Wentz also noted that in examining this issue,
the Privacy Act exemption or the Privacy Act provision for
amendment of records falls under 552a(d). And that subsection
is entitled Access to Records. And access, as is stated in the
regulation, necessarily includes amendment.
So, it is not inconsistent for the Government in their
exemption regulations to also address access to records. And
under the subsection in the Privacy Act statute, it is consistent
then for that access to also include amendments to records and
the reasons are the same.
For that reason, Your Honor, the Government urges that the
Privacy Act exemption does apply in this case.
Even if Your Honor were to find that the exemption does not
apply, the Privacy Act still allows, allows a plaintiff only to
amend factual determinations. And in this case, Your Honor,
clearly the facts are not in dispute. The little girl made the
identification at the Post Exchange while she was shopping with
her parents. And the dispute that the plaintiff has is with the
evaluation and determination of those facts.
And the Privacy Act is not meant to allow a plaintiff who
disagrees with a determination to change, to shape or color that
determination to his own likings. It is meant to allow the
plaintiff to attack facts that are in error. And plaintiff is
only allowed to attack the determination if he can discredit each
and every one of the underlying facts. And plaintiff has not
done so in this case.
Additionally, Your Honor, if you find, once again assuming
that the Privacy Act did apply, plaintiff would would not be
entitled to damages. He has the very formidable barrier that in
order to prove damages, he as to show causation. And the only
causation that is mentioned here in the record is purely
speculative, on whether or not the Continuation Board may have
known that the plaintiff was flagged or titled, whether or not
that would be improper.
And that certainly doesn't meet the high hurdle of causation.
And it doesn't come close to meeting the even higher hurdle of
showing that the Army acted willfully and intentionally in doing
so.
Finally, Your Honor, the only way one can rule for the
plaintiff in this case is to adopt the plaintiff's view of the
facts. And that means that you have to assume or you have to
believe that a mother and a father instructed their daughter to
fabricate this story of child molestation and to identify or
pick out someone who they didn't like and talk their daughter or
embed in her somehow the fact that this was the man that molested
you.
If you look at the facts, Your Honor, Colonel Aquino left the
Presidio San Francisco in the end of the summer of 1986. He was
assigned here in Washington, D.C. After Washington, D.C. his
follow-on assignment was to go to St. Louis. He was only back
in the Presidio in San Francisco during that summer. Plaintiffs
would not even know that he was back there. He had left the Presidio.
How would they know that their daughter would see that person in
the Post Exchange in San Francisco in the summer of 1987 when he
had left that area for a year and he was being reassigned to St.
Louis?
And yet this girl, in a completely public setting, identifies
this man as Mikey, a man who sodomized her and having her place
her mouth on his penis. There wouldn't be any tears or anything
in her vagina or anus for that kind of sodomy.
Based on the facts, Your Honor, you would have to believe that
there was a giant conspiracy between the parents, the daughter,
the psychiatrist, the child psychiatrist that treated the girl,
between the CID agents who investigated the case, between the
military policemen and investigators who reviewed the case, and
between the officials in the Army Criminal Law Division who also
reviewed the case.
And finally, Your Honor, plaintiff is not left without a remedy
here. The Privacy Act requires and Army Regulation 195-2 provides
that remedy. That if the plaintiff disagrees with a determination
that is made, he should be allowed to state the reasons for his
disagreements, and those reasons should be appended to that official
record. As you can see by the volume of this administrative record
that you have, Appendix F, which is part of the Criminal
Investigation Division report of investigation, includes all of the
submissions made by the plaintiff which state his side of the
story and the reasons why he disagrees with this.
But the proper way to dispose of this case, Your Honor, is to
examine the (j)(2) exemption under the Privacy Act, and to conclude
that this (j)(2) exemption applies under the Ryan case and the
Wentz case under either or both cases to this case at hand, and
that the Army did not act arbitrarily and capriciously in making
its determination.
Your Honor, plaintiff has a lot better chance in this case of
fitting a camel through the eye of a needle than showing that the
Army acted arbitrarily and capriciously in their determination that
Lt. Colonel Aquino sexually abused this child. This is not a case
of a witch hunt or a warlock hunt, and it is not a case of religious
discrimination.
Plaintiff was not titled because he the chief priest or the
high priest of the Temple of Set. It is completely irrelevant,
Your Honor. He was titled in this report of investigation because
the evidence shows that he committed indecent acts with a child,
and that he conspired with others to take this child away from
the day care center, take them to his apartment, and that's where
he sexually abused her.
Thank you, Your Honor.
THE COURT: All right.
MR. MYERS: If I may, Judge. There is no evidence that this child
has told anyone herself that she identified Michael Aquino. The
parents say this. But let me point out to you, Your Honor, this
little girl at the same time advised the psychiatrist that her next
door neighbor, who was a doctor, Dr. Steve, was part of this effort
as well. This little girl identified the car that the Aquinos owned
as the one that Mrs. Aquino drove her in. It was a rented car. It
could not have been their car.
It was rented for the weekend that they were out there. The little
girl's testimony is utterly incredible.
And it wasn't this little girl alone who is supposed to have gone
to the Aquino home, Judge. It was multiple children. And the only
day the Army has in their investigation was June 10. Yet no other
child could identify Dr. Aquino or Mrs. Aquino or the home they
lived in, no other child.
And yet they were supposed to-- The Army glibly talks about a
conspiracy. With whom? Mrs. Aquino couldn't have been in it. The
Army decided not to title her. There is no evidence that Gary Hambright
even knew Michael Aquino.
With whom? It is easy to say conspiracy, but with whom? And
upon what factual predicate? No, Judge. This isn't a neat and tidy
little case where we can just sweep it away and say, we did a wonderful
job here protecting the public interest. This was a concerted effort
to bury this plaintiffs And the facts that I have put in that brief
are not speculation, Judge. They come from government documents.
Each and every fact is supported by exhibit number. And each and
every fact comes from the government. Not speculation, Judge. This is
a serious matter.
Thank you.
THE COURT: All right. I will look at this further and I will get an
answer to you all in some reasonable time.
MR. LISOWSKI: Thank you, Your Honor.
MR. MYERS: Thank you, Judge.
THE COURT: If we have no further business, we will
adjourn until Monday morning.
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HEARING CONCLUDED