Trial begins in case of man accused of blinding two CBP pilots

Published on Tue, Apr 26, 2011 by Jeremy Schwartz

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Jurors heard the first testimony on Monday in the federal trial of Wayne Groen, a Lynden man who is accused of interfering with a U.S. Customs and Border Protection (CBP) helicopter by shining a high-powered flashlight at it during a nighttime flight.

Over the course of the trial, which is expected to last four to five days, federal prosecutors will attempt to prove that Groen shined a flashlight at the two CBP pilots with the intent to disable them. Groen has been charged with one count of interfering with the operation of an aircraft and one count of incapacitating the pilot of an aircraft. Each count carries a maximum prison term of 40 years.

Groen’s defense, lead by Bellingham-based attorney Jeffrey Lustick, will attempt to show that Groen had no intention to harm the two helicopter pilots. Lustick wrote in a trial brief that Groen was merely investigating the low-flying helicopter hovering above his home.

“The defense has no burden in this case, but nonetheless, we are confident we can show that the defendant was acting on the spur-of-the-moment and meant no harm to anyone by his actions,” Lustick wrote. “In reality, he was jostled out of bed by a low-flying helicopter that came without warning.”

Groen allegedly shined the flashlight toward the helicopter at about 9:30 at night on September 22, 2010. The helicopter was approximately 500 feet off the ground when the light struck the pilots, allegedly temporarily blinding both of them and forcing them to remove their night vision goggles and fly away from the scene. The two agents later returned to aide in the search for the light’s source and found Groen sitting in his truck near his home on H Street east of Blaine.

In later interviews with federal agents, Groen admitted he shined the light at the helicopter and that it was probably a bad idea. Groen was formally indicted in January, which ignited a firestorm of public outrage with the CBP, and Border Patrol agents specifically. About a month after Groen’s indictment, the CBP hosted a public forum at Blaine high school where people had the chance to air their grievances with the Border Patrol, though the Groen case was not specifically discussed.

The defense will rely on much of the public support Groen has garnered over the last few months to help show that Groen was not acting unreasonably in his actions. The defense’s witness list is made up almost entirely of Groen’s neighbors in the east Blaine and Lynden communities.

Lustick wrote that each witness will testify as to how intrusive CBP helicopters can be to residents of northwestern Whatcom County. Groen’s defense has also lined up David Englert, a specialist in high-energy light from the University of Washington, as an expert witness.

According to the defense’s legal brief, Englert, who lives in Blaine, will testify that temporary blindness or harm to one’s eyesight is impossible when exposed to high-intensity light while wearing the kind of night vision goggles the CBP pilots were wearing. Englert will claim that such goggles may even protect the wearer’s eyes from high-intensity lights.

The prosecution, on the other hand, will attempt to show that Groen’s actions were the deliberate result of negative feelings he had toward the CBP and its agents, according to the prosecution’s trial brief. Prosecutors attempted to enter as evidence past run-ins Groen had had with CBP agents, but in response to a motion filed by Lustick, Judge Thomas Zilly ruled that evidence inadmissible.

Instead, lead prosecutor Jenny Durkan will use a taped conversation Groen had with Department of Homeland Security special agent Josh Barrett on October 13, 2010 to demonstrate Groen’s ill-feelings toward the CBP. The prosecution plans to play portions of the conversation in court.

The jury is expected to begin deliberating on Friday, April 29.