24 November 2001
Source: Digital files from Court Reporter Julaine V. Ryen, Western District of Washington, Tacoma, WA. Telephone: (253) 593-6591

This is Day 1 of the testimony.

See other testimony: http://cryptome.org/usa-v-jdb-dt.htm

           1                   UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF WASHINGTON
           2                            AT TACOMA
           4  UNITED STATES OF AMERICA,    )  Docket No. CR00-5731JET
                                           )  Court of Appeals No. 01-30303-00
           5              Plaintiff,       )
           6          v.                   )
                                           )  Tacoma, Washington
           7  JAMES DALTON BELL,           )  April 3, 2001
           8              Defendant.       )
          10                              VOLUME 1
                                     TRANSCRIPT OF TRIAL
          11                 BEFORE THE HONORABLE JACK E. TANNER
                       SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
          13  APPEARANCES:
          14  For the Plaintiff:            ROBB LONDON
                                            Assistant United States Attorney
          15                                601 Union Street, Suite 5100
                                            Seattle, Washington  98101
              For the Defendant:            ROBERT M. LEEN
          17                                Attorney At Law
                                            Two Union Square
          18                                601 Union Street, Suite 4610
                                            Seattle, Washington  98101-3903
          21  Court Reporter:               Julaine V. Ryen
                                            Post Office Box 885
          22                                Tacoma, Washington 98401-0885
                                            (253) 593-6591
              Proceedings recorded by mechanical stenography, transcript
          25  produced by Reporter on computer.
           1                              I N D E X
              VOLUME 1                                       1 - 88
              Motion to Quash Subpoena for Declan McCullagh ..    5
              Defendant's Motion to Withdraw as Counsel ......    7
           6           Denied  ...............................    8
           7  Defendant's Motion to Dismiss Counts 4 & 5 .....   10
                       Denied  ...............................   11
              Defendant's Motion for Exception to Sequestration
           9  of Witnesses to Allow Defendant's Parents
              to be Present  .................................   11
          10           Denied  ...............................   12
          11  Defendant's Motion for Limited Attorney
              Voir Dire of Jury  .............................   12
          12           Denied  ...............................   13
          13  Discussion Regarding Serving of Supoenas  ......   13
          14  Defendant's Motion for Withdrawal of Counsel ...   15
                       Denied  ...............................   15
              Plaintiff's Motion to Show Cause ...............   15
              Defendant's Pro Se Motions  ....................   17
          17           Denied  ...............................   18
          18  Motion to Exclude Witnesses   ..................   18
                       Granted  ..............................   19
              Defendant's Motion to have a Witness at Counsel
          20  Table for Assistance  ...........................  19
                       Denied  ...............................   19
              Defendant's Motion for Judge to Recuse Himself ..  20
          22           Denied  ...............................   21
          23  Motion to Quash Subpoenas of Mr. Avenia and
              Mr. Gombiner ...................................   22
          24           Granted  ..............................   22
          25  Defendant's Motion to Allow Jurors to Take Notes   24
           1                              I N D E X
           3      STEVEN WALSH
                       Direct  .......................   26
           4           Cross  ........................   34
           5      DECLAN MCCULLAGH
                       Direct  .......................   43
           6           Cross  ........................   50
                       Redirect  .....................   54
           7           Recross  ......................   55
           8      CINDY BROWN
                       Direct  .......................   55
              Stipulation as to Exhibit 25 ....................  41
              EXHIBITS             Admitted
                 6                    60
          13    10                    61
                11                    63
          14    13                    65
                14                    67
          15    15                    68
                32                    77
          16    38                    32
                42                    80
          17    45                    82
           1      (Defendant present.)
           2                           MORNING SESSION
           3      (Prospective jurors not present.)
           4           THE CLERK:  Cause No. CR2000-5731, United States of
           5  America versus James Dalton Bell.
           6      Will the attorneys please identify themselves and make their
           7  appearances for the record.
           8           MR. LONDON:  Good morning, Your Honor.  Robb London for
           9  the United States of America.  We're here for trial this
          10  morning.
          11           MR. LEEN:  Good morning, Your Honor.  Robert Leen
          12  appearing on behalf of the defendant, James Bell.
          13           THE COURT:  Okay.  Where are we?  Motions?
          14           MR. MICHELSON:  Your Honor, Guy Michelson of Corr
          15  Cronin and Tim Alger of Gibson, Dunn & Crutcher on the motion to
          16  quash the subpoena for Declan McCullagh.
          17           THE COURT:  Whose motion do we take up first?
          18           MR. LONDON:  Your Honor, my view is that because Mr.
          19  Alger is from out of town and resolution of his and Mr.
          20  McCullagh's issues could possibly spare them from having to
          21  stick around longer than necessary, the motion to quash the
          22  subpoena of Declan McCullagh should probably be taken up first.
          23           THE COURT:  All right, attorney come forward.
          24      Okay.
          25           MR. MICHELSON:  Your Honor, again, my name is Guy
           1  Michelson of Corr Cronin, and Tim Alger has been admitted pro
           2  hac vice from Gibson, Dunn & Crutcher.
           3           THE COURT:  All right.
           4           MR. ALGER:  Good morning, Your Honor.  Thank you for
           5  hearing me this morning.
           6      Declan McCullagh has been called as a witness by the
           7  prosecution in this case.  Declan McCullagh is a reporter for
           8  Wired News.  He's written a number of stories about Mr. Bell in
           9  this case and also the Cypherpunks phenomena, which the court
          10  has become familiar with, I think, in this matter.
          11      The prosecution hopes to inquire of Mr. McCullagh regarding
          12  statements that Mr. Bell was quoted as saying in the articles.
          13  Our concern is that the inquiry will go beyond the scope of the
          14  published matters in the articles, and particularly on
          15  cross-examination.  So we believe under these circumstances
          16  where there's a First Amendment privilege for unpublished
          17  information, the subpoena should be quashed in its entirety;
          18  that the government should at least meet the three-part test for
          19  the First Amendment privilege before they put him on the stand.
          20  And then even if there is an inquiry beyond the four corners of
          21  the article, that there needs to be an inquiry on, at least, at
          22  minimum, on a question-by-question basis for each of the stated
          23  questions regarding unpublished information.
          24      Under these circumstances where Mr. Declan McCullagh's First
          25  Amendment rights are implicated, and then there's also the
           1  potential for the defendant's fair trial rights to be implicated
           2  if there's a limitation of examination on cross-examine, we
           3  think it's more appropriate that the subpoena be quashed in its
           4  entirety, Your Honor.
           5           THE COURT:  Mr. Leen.
           6           MR. LEEN:  Your Honor, our position is that if the
           7  witness testifies, we will cross-examine.  The court will rule
           8  on the relevance or the appropriateness of the questions that we
           9  ask.
          10           THE COURT:  Well, if I understand it, what we're
          11  talking about is statements made by the defendant, alleged
          12  statements made by the defendant, to the proposed witness,
          13  period.  That's it.
          14           MR. LEEN:  I think that we are allowed --
          15           THE COURT:  He either said them or he didn't.
          16           MR. LEEN:  That's true, but I think in
          17  cross-examination we are allowed to put those statements within
          18  the context of other things that he said which relate to those
          19  statements.
          20           THE COURT:  It will be -- the cross-examination will be
          21  limited to what he says on direct examination.  Period.
          22           MR. LEEN:  I'm sorry?
          23           THE COURT:  I said, the cross-examination will be
          24  limited to what the witness says, whatever he says, on direct
          25  examination.
           1           MR. LEEN:  But we may ask him about what he says on
           2  direct examination?
           3           THE COURT:  What he says on direct, yes.
           4           MR. LEEN:  May we ask him the circumstances under which
           5  statements were made and other statements which relate to that
           6  which aren't in -- which aren't testified to but are directly
           7  related to them?
           8           THE COURT:  The cross-examination will be limited to
           9  what this witness has -- the defendant has allegedly said to the
          10  witness, period.
          11           MR. LEEN:  Yes, sir.
          12           THE COURT:  No further than that.
          13           MR. ALGER:  Thank you, Your Honor.  We would like to
          14  have the opportunity when Mr. McCullagh is called to interpose
          15  an objection when appropriate if the inquiry goes beyond the
          16  four points.
          17           THE COURT:  Talk to the government.  It's the
          18  government's witness.
          19           MR. ALGER:  Thank you, Your Honor.
          20           THE COURT:  Anything else?
          21           MR. ALGER:  No, Your Honor.
          22           THE COURT:  All right.  Any other motions?
          23           MR. LEEN:  The defense has two motions, Your Honor.
          24  The first is a motion for me to withdraw as counsel for the
          25  defendant.  I have filed a renewed motion to withdraw which
           1  makes reference to a prior motion filed by the defendant for
           2  substitute counsel and to discharge me.  I believe that there
           3  should be a colloquy to focus in on --
           4           THE COURT:  Haven't we gone through this once?
           5           MR. LEEN:  We have addressed the question previously,
           6  yes.
           7           THE COURT:  What is -- is there something new that I
           8  would reconsider my former decision not to let you withdraw?
           9      If I understand it, if I understand it, I have said that you
          10  --
          11           THE DEFENDANT:  I have something to say, sir.
          12           THE COURT:  To the defendant:  You will address the
          13  court when you are asked to, and at no other time.  Do you
          14  understand that?  So we have no problems here understanding each
          15  other.
          16           THE DEFENDANT:  Yes.
          17           THE COURT:  I think I said before that you will not be
          18  removed.  I think you're, what, the fifth lawyer that this
          19  defendant has had?
          20           MR. LEEN:  I'm the first lawyer on this case, Your
          21  Honor.
          22           THE COURT:  Well, about five lawyers gone through
          23  here?
          24           MR. LEEN:  There have been several.
          25           THE COURT:  I'm not going to let you withdraw, but I
           1  will tell the defendant he has a right to represent himself, but
           2  it will not be in conjunction with you.  You are in charge of
           3  the case for the defendant.  If he wishes to take over the case
           4  himself, he's free to do so.
           5           MR. LEEN:  I just would point out, I don't think
           6  there's been a colloquy between the court and the defendant as
           7  to the nature -- or sufficient colloquy as to the nature of the
           8  disagreement that he has with me as his counsel.
           9           THE COURT:  He doesn't trust you.
          10           MR. LEEN:  Among other things.  He has great personal
          11  animosity towards me.
          12           THE COURT:  Of course he does.  After a review of the
          13  record, I understand it.  Based on nothing.
          14           MR. LEEN:  Related to that, will the court advise --
          15           THE COURT:  And it's a matter of record, up till now,
          16  you have represented him very well.  You can't ever change the
          17  facts, though, of the case by the attorney.
          18           MR. LEEN:  Yes, Your Honor.
          19      Will the court allow the defendant to ask questions of
          20  witnesses?
          21           THE COURT:  I said, if he wants to take over and
          22  question the witness, he has the whole case.  In other words,
          23  it's not going to be partial representation.
          24           MR. LEEN:  Yes, Your Honor.
          25           THE COURT:  When he decides.
           1           MR. LEEN:  Will you allow me to be on a standby basis
           2  and allow the defendant to conduct his own defense if he wishes
           3  to?
           4           THE COURT:  No.  I haven't heard him say he wishes to
           5  represent himself.  And until he does, you are his attorney.
           6           MR. LEEN:  Yes, Your Honor.
           7      I have a motion to dismiss counts 4 and 5 which was recently
           8  filed.  I don't know if the court has reviewed it.
           9           THE COURT:  Yes.  It will be denied.
          10           MR. LEEN:  May I just get my pad?  I think I have two
          11  or three other things I wanted to raise.
          12           THE COURT:  The issue is, what was -- the issue was
          13  about the distinction, across state lines --
          14           MR. LEEN:  Yes, sir.
          15           THE COURT:  -- and interstate commerce.
          16           MR. LEEN:  Yes.  The 1996 statute requires proof that
          17  the defendant crossed the state line.  The amended statute in
          18  2000 doesn't use that language.  It says the defendant traveled
          19  in interstate commerce.
          20           THE COURT:  Aren't there cases that say they are
          21  interchangeable?
          22           MR. LEEN:  There's an Eighth Circuit case that says
          23  that proof of one is proof of the other.  But that is on a
          24  review basis on appeal, at which time any sufficient evidence to
          25  support any element of an offense is sufficient to -- for the
           1  court to sustain a conviction.
           2      In the first instance, the grand jury has indicted and has
           3  not tracked the statute.  And so that's the basis of the motion
           4  to dismiss counts 4 and count 5.
           5           THE COURT:  The motion to dismiss count 4 and 5 will be
           6  denied.
           7      Any other?
           8           MR. LEEN:  Yes, Your Honor.  The defendant's mother and
           9  father have been subpoenaed by the government.  According to Mr.
          10  London, they are subpoenaed not as witnesses that the government
          11  intends to call in its case in chief, but in potential rebuttal
          12  if the defendant should testify to certain things, which I don't
          13  expect that he would, if he did testify.  I think it's important
          14  that the defendant's mother and father be in attendance so that
          15  he has some support, and I think it's important for them to
          16  watch their son's trial proceedings.  And so while I expect that
          17  the rule of sequestration of witnesses will be asked for,
          18  probably granted by the court, I would like to have an exception
          19  made so that his mother and father can attend the trial.
          20           THE COURT:  What's the basis for the exception?
          21           MR. LEEN:  Because they really have nothing of a
          22  substantive nature to testify to.  The only circumstance under
          23  which their testimony might be called is if the defendant were
          24  to deny that email under his name found on the computer in the
          25  home was authored by someone other than himself, and he will not
           1  do that.
           2           THE COURT:  But is there something in the rule that the
           3  mother and father, sort of like the marital privilege, that
           4  mother and father can't testify against the son?
           5           MR. LEEN:  No.  A mother and father can testify against
           6  an adult son; that's clear.  However, I ask the court to
           7  exercise its discretion, which I think you -- and the government
           8  is allowed to have a representative in the court.  They have
           9  Special Agent Jeffrey Gordon, who is a -- not only the lead
          10  investigator, but also the alleged victim of two counts in the
          11  indictment -- three counts in the indictment.  And so I just ask
          12  that the parents be allowed to attend these proceedings for
          13  their emotional well-being and that of the defendant.
          14           THE COURT:  No exception.  If there's a motion to
          15  exclude, they will be excluded.
          16           MR. LEEN:  Well, the defense will be making a motion to
          17  exclude witnesses.
          18           THE COURT:  All right.  Any other?
          19           MR. LEEN:  One second.
          20      Your Honor, the defense has requested limited attorney voir
          21  dire of the jurors as to primarily the defendant's First
          22  Amendment rights.  The government will be introducing some very
          23  inflammatory writings that the defendant has posted on the
          24  Internet, and I think that it would be appropriate for the
          25  defense to be able to ask particularized questions either
           1  individually or to the group.  So I have submitted a motion for
           2  limited attorney voir dire.
           3           THE COURT:  The court will handle the voir dire.
           4           MR. LEEN:  I have also submitted questions, Your
           5  Honor.  I don't know if you received those.  Those were
           6  submitted yesterday.  I will submit them, another copy, to your
           7  clerk.
           8           THE COURT:  Are you talking about the voir dire now?
           9           MR. LEEN:  Yes, Your Honor.
          10           THE COURT:  I have it.
          11           MR. LEEN:  Thank you.
          12      The United States Marshal has indicated that -- the defense
          13  has served subpoenas, I have served subpoenas -- I have asked
          14  the marshal to serve subpoenas that were -- that the defendant
          15  indicated were witnesses that he wanted to have in these
          16  proceedings.  Several of these subpoenas are for deputy United
          17  States marshals.  Three are for persons who live in Vancouver.
          18  The defendant has -- would identify reasons why these witnesses
          19  are important, and the marshal, however, has indicated that he
          20  will not serve the subpoenas without a court order, nor will any
          21  deputy United States marshal testify without a court order.  So
          22  we ask for the court at the time that the defense begins the
          23  presentation of its case, or at such time as the court feels is
          24  appropriate, we would like to have a ruling on whether the
          25  defense subpoenas will be served.
           1           THE COURT:  Is there some reason that the defense
           2  shouldn't show the relevancy of these witnesses before we have
           3  people standing by or parading through here?
           4           MR. LEEN:  Well, they are in-district subpoenas, and
           5  the rule doesn't require a showing of relevancy by the defendant
           6  for the service of in-district subpoenas.  However, a motion to
           7  quash them would be filed and the court could inquire as to the
           8  relevancy.
           9           THE COURT:  That's what we're doing now, aren't we?
          10           MR. LEEN:  I would ask that if we have to do that, that
          11  the defendant be allowed to do that --
          12           THE COURT:  I also understand there are some public
          13  defenders that have been subpoenaed.
          14           MR. LEEN:  Mr. Gombiner and Mr. Avenia, the former
          15  counsel of Mr. Bell.
          16           THE COURT:  Well, here --
          17           MR. LEEN:  Excuse me.  Mr. Gombiner was counsel for
          18  Ryan Lund, who was a -- plays some minor role in this case in
          19  terms of just his name and --
          20           THE COURT:  We are now talking about all of the
          21  witnesses that you have mentioned that have been subpoenaed.
          22           MR. LEEN:  Yes, sir.
          23           THE COURT:  We haven't named them all by the
          24  defendant.  Well, before they are called or ordered by the court
          25  to appear, I will expect a written reason why they are being
           1  called.
           2           MR. LEEN:  Will I be allowed to submit that ex parte,
           3  Your Honor?
           4           THE COURT:  Yes.
           5           MR. LEEN:  Finally, the defendant indicates that he has
           6  a list of 25 reasons subsequent to this court's initial ruling
           7  not permitting me to withdraw that he would like to identify to
           8  the court, if the court would inquire.  And if the court would,
           9  I would ask that this be done outside the presence of the
          10  government.
          11           THE COURT:  Any further motions for counsel withdrawn
          12  are considered by this court a motion to delay and harass.
          13           MR. LEEN:  I have no further motions.
          14           THE COURT:  All right.
          15      Government, any motions?
          16           MR. LONDON:  None.
          17           THE COURT:  Before we call the jury?
          18           MR. LONDON:  Your Honor, we have one outstanding
          19  motion, which is the motion for an order to show cause.  The
          20  defendant was ordered by this court to provide the government
          21  with handwriting exemplars.  He was twice given the opportunity
          22  at the FDIC to do it, and he twice refused.  It was an express
          23  refusal of an order of this court.
          24      As a result, one piece of evidence that we had hoped to be
          25  able to put on in this trial, which was handwriting expertise
           1  evidence identifying handwriting, in particular a notebook as
           2  his, we cannot do with the strength we had hoped to be able to
           3  do.  So we --
           4           THE COURT:  I didn't hear what you just -- you dropped
           5  your voice and dropped your head, that last statement.  What was
           6  the last statement?
           7           MR. LONDON:  We were not able -- we will not, if we're
           8  going to trial today, which it by all --
           9           THE COURT:  Oh, you are.
          10           MR. LONDON:  We are going to trial today.
          11           THE COURT:  Yes, you are.
          12           MR. LONDON:  So we are not in a position to be able to
          13  put on a handwriting expert, which we had hoped to be able to
          14  do, because the defendant did not furnish us with the
          15  handwriting exemplars as ordered by this court to do so.
          16           THE COURT:  Well, can you -- isn't there some law, some
          17  indication you can tell that to the jury, that he refused?  Why
          18  not?
          19           MR. LONDON:  Well, the evidentiary issue at trial, Your
          20  Honor, is a separate one from the sanction issue for the
          21  purposes of upholding the authority of the court and the rights
          22  of the government to be able to prosecute the case in the proper
          23  fashion.
          24           THE COURT:  But the end result by the refusal, it keeps
          25  the information or the evidence from the jury.  Isn't that
           1  correct?
           2           MR. LONDON:  That's correct, Your Honor.  But we're
           3  actually asking for a sanction here.
           4           THE COURT:  What?
           5           MR. LONDON:  Your Honor, if the court finds that the
           6  defendant is in contempt, then it has the effect of tolling the
           7  computation of the time that he is spending in detention towards
           8  counting toward the --
           9           THE COURT:  You're talking about after the fact,
          10  though.
          11           MR. LONDON:  That's correct.
          12           THE COURT:  He hasn't been convicted of anything yet.
          13           MR. LONDON:  No, Your Honor, but we are asking for a
          14  finding that he is in contempt.
          15           THE COURT:  Well, we're back; why can't you tell the
          16  jury that?
          17           MR. LONDON:  All right, Your Honor.  I would like to --
          18           THE COURT:  Why don't you look at that?
          19           MR. LONDON:  All right, I will, and I would like to be
          20  able to reraise that issue at a later time.
          21      Your Honor, the defendant has filed himself a number of
          22  motions pro se that I don't know if we have rulings from the
          23  court on yet  .  If there were minute orders or anything issued
          24  today, we haven't seen them yet, but there's a whole catalog
          25  which we have tried --
           1           THE COURT:  And they are all denied, for the record.
           2      Anything else before the jury?
           3           MR. LEEN:  May I have one second, Your Honor?
           4           THE COURT:  Yes.
           5           MR. LEEN:  Your Honor, the defendant feels that it is
           6  important that you know that his reason for refusing to give
           7  handwriting exemplars had nothing to do with the fact that he
           8  was aware that the government agents were asking for handwriting
           9  exemplars.  He thought that it was a -- he was told that it was
          10  a legal visit, and he refused to come down because he was not
          11  communicating with me at that time.  So he denied a legal
          12  visit.  He did not -- he was not advised that this was a visit
          13  for the express purpose of giving handwriting exemplars.
          14      The court has ruled, but he feels that it's important that
          15  you are aware of that fact.
          16           THE COURT:  The ruling still stands.
          17           MR. LEEN:  Yes, Your Honor.
          18           THE COURT:  All right.  Anything else?
          19      Ready for the jury?
          20      All right, is there a motion to exclude witnesses?  Mr.
          21  Leen?
          22           MR. LEEN:  Yes, Your Honor, there is a motion to
          23  exclude witnesses.
          24           THE COURT:  Mr. London?
          25           MR. LONDON:  Yes, Your Honor.  We're in agreement with
           1  that motion.
           2           THE COURT:  You wish to have who at counsel table?
           3           MR. LONDON:  One case agent, Your Honor.
           4           THE COURT:  All right.
           5           MR. LEEN:  Your Honor, may we --
           6           THE COURT:  All other witnesses -- pardon?
           7           MR. LEEN:  Your Honor, we wonder if we might have a
           8  witness at counsel table, someone to assist us at counsel
           9  table?
          10           THE COURT:  Is there anything in the Ninth Circuit that
          11  would support that?
          12           MR. LEEN:  I don't think there's anything that says
          13  that we couldn't.
          14           THE COURT:  The motion will be denied.
          15           MR. LEEN:  Well --
          16           THE COURT:  So far, Mr. Leen --
          17           MR. LEEN:  I'm not doing well.
          18           THE COURT:  You have adequately represented the
          19  defendant so far.
          20           MR. LEEN:  Thank you, Your Honor.
          21           THE DEFENDANT:  Not by my opinion.
          22           MR. LEEN:  The defendant also says that there's a
          23  conflict of interest, although I'm not exactly sure what he's
          24  referring to.  So could he address the court on that?
          25           THE COURT:  No.  Go back and ask him.
           1           MR. LEEN:  Your Honor, the defendant believes that the
           2  court has business interests with two individuals which would
           3  cause you to have to disqualify yourself from proceeding in this
           4  case.  But I don't want to -- I don't even want to pursue it.
           5  The defendant is insistent, however.  So would the court allow
           6  him to address the court?
           7           THE COURT:  Is this a motion under, I think, 455 or
           8  143?
           9           MR. LEEN:  I don't know what section it's under, Your
          10  Honor, but he feels the court has a business interest which
          11  would preclude it from proceeding as -- presiding over a
          12  proceeding in which he is the defendant, the defendant that is
          13  on trial.  He would like to address the court as to that.
          14           THE COURT:  No.  Go back and ask him.
          15           MR. LEEN:  Well, he -- okay.  He identified, he said,
          16  Two Dogs -- this is an Indian -- and also Bob Sitiacum, another
          17  Native American.  He says that --
          18           THE COURT:  He's been dead for many, many years.
          19           MR. LEEN:  Well, I understand, Your Honor.  The
          20  defendant believes that for some reason that the court is
          21  disqualified for having had prior clients before you sat on the
          22  bench.
          23           THE COURT:  That had something to do with the
          24  defendant?
          25           MR. LEEN:  That's what he's saying.
           1           THE COURT:  I had never heard of the defendant before
           2  the case hit my desk.
           3           THE DEFENDANT:  You have now.
           4           THE COURT:  The next time you say something, sir,
           5  uninvited, you either are going to be muzzled or you're going to
           6  be sent downstairs to listen and hear these proceedings.  Do you
           7  understand that?  So we don't have any understandings.  You're
           8  not going to get a mistrial.  You can forget that.
           9           THE DEFENDANT:  Excuse me.
          10           MR. LEEN:  I don't know the basis of the motion.  I
          11  just know that that's what I was asked to communicate to the
          12  court, and I have done it.
          13           THE COURT:  For the record, I have never seen or heard
          14  of this defendant before this case hit this desk.  There's
          15  nothing that I have any knowledge of, any connection, either any
          16  client or any personal knowledge of this defendant, of any kind
          17  whatsoever.  So that motion is denied.
          18           MR. LEEN:  One more, sir.
          19           THE COURT:  All right.
          20           MR. LEEN:  Your Honor, the defendant would -- is
          21  insistent that the court would have to acknowledge that you have
          22  had business relations with those two individuals.
          23           THE COURT:  I just said the motion, if it is a motion
          24  to recuse, is denied.
          25           MR. LEEN:  Yes, sir.
           1           THE COURT:  Are we ready for the jury?
           2           MR. LONDON:  There's one other matter, Your Honor,
           3  that's been brought to my attention.  As the court is aware, Mr.
           4  Avenia and Gombiner have moved to quash the subpoenas of them,
           5  and Mr. Gombiner is present in court this morning and Mr. Avenia
           6  is in trial next door, and I know they are anxious to have a
           7  ruling before they are actually called to testify because it
           8  could be quite disruptive, and so --
           9           THE COURT:  If either one of them have any further
          10  information to add from what they've already said, I'm going to
          11  quash the subpoenas to both of them.
          12           MR. LEEN:  I'm sorry, I didn't -- I was --
          13           THE COURT:  The motion to quash as to Mr. Avenia and
          14  Mr. Gombiner are granted.
          15           MR. LEEN:  May I ask that that be subject to the
          16  court's review of our ex parte reason why they were subpoenaed?
          17           THE COURT:  All I have is what I have before me.
          18           MR. LEEN:  Well, I will explain why the defendant wants
          19  the subpoenas, Your Honor.
          20      Mr. Bell believes that there was an agreement between the
          21  government, some government agent, and Ryan Lund, who was a
          22  defendant before Judge Burgess, involving a quid pro quo to Mr.
          23  Lund, and if Mr. Lund would beat up Mr. Bell when he was housed
          24  in the Federal Detention Center the last time he was prosecuted,
          25  and that Mr. Gombiner, as the attorney for Mr. Lund, would be
           1  aware of that illegal agreement between the government and Mr.
           2  Lund and wants to question him about that.
           3           THE COURT:  The motions by Mr. Avenia and Mr. Gombiner
           4  are granted.  They are released.  They are free to go.
           5           MR. LEEN:  Yes, sir.
           6           THE COURT:  Anything else?
           7           MR. MICHELSON:  Your Honor, Guy Michelson again.
           8      Mr. McCullagh, I guess, will be testifying this afternoon.
           9  Tim Alger will be here for that.  Does the court have any
          10  problem if I leave prior to that testimony?  He's been admitted
          11  pro hac vice.
          12           THE COURT:  No.
          13           MR. MICHELSON:  Thank you.
          14           THE COURT:  Anything else?
          15      All right.  We will be in recess pending the jury
          16  selection.  Court's in recess.
          17      (Recessed at 10:25 a.m.)
          18                       *    *    *    *    *
          19                    (Jury selection not ordered.)
          20                       *    *    *    *    *
          21                   (Jury excused for lunch break.)
          22                       *    *    *    *    *
          23           THE COURT:  If I didn't grant the request to have all
          24  witnesses be outside, I do now.  But each party is going to have
          25  to be responsible for your witnesses because the court doesn't
           1  know who they are.  So they will all be excluded.  Okay?
           2      Any -- yes?
           3           MR. LEEN:  Yes, Your Honor, two matters.  First, the
           4  defense would request that the jurors be permitted to take
           5  notes.
           6           THE COURT:  I don't -- I don't know of any rule that
           7  says they can't.
           8           MR. LEEN:  It's discretionary with --
           9           THE COURT:  I don't intend to call it to their
          10  attention.  If they want to take notes, they can.
          11           MR. LEEN:  Well, it's discretionary with the court, and
          12  if they do take notes there's a procedure that has to be
          13  followed.  The notes have to stay in the courtroom and they are
          14  told they are destroyed at the end of the proceedings.
          15           THE COURT:  Well, we will find out when we get there.
          16           MR. LEEN:  Second, I didn't bring it up before.  I had
          17  forgotten, I apologize.  But the defendant did file a notice of
          18  interlocutory appeal.  His position is the court has no
          19  jurisdiction to proceed.
          20           THE COURT:  I haven't heard anything from the Ninth
          21  Circuit.  So we will proceed.
          22           MR. LEEN:  Finally, the defendant had heard the court
          23  tell the jurors in voir dire that the prosecution, plaintiff,
          24  would make a case, make an opening statement, and then the
          25  defendant could make an opening statement.  He has construed
           1  that to mean that he is allowed to give an opening statement
           2  himself.  And so....
           3           THE COURT:  I will repeat.  If the defendant wishes to
           4  represent himself, he's going to represent himself.  I'm not
           5  going to have dual representation here.
           6           MR. LEEN:  I just wanted to bring that up outside the
           7  jury's presence.
           8           THE COURT:  I don't know how to make it any plainer.
           9  He's free to accept -- I caution him not to represent himself.
          10  As far as I'm concerned, Mr. Leen, you're perfectly competent to
          11  represent this defendant.
          12           MR. LEEN:  I don't know quite how to take that, Your
          13  Honor, but thank you.
          14           THE COURT:  Or, I will say, any other defendant.
          15           MR. LEEN:  Thank you.
          16           THE COURT:  We are in recess.  1:30.
          17      (Recessed at 12:10 p.m.)
          18                          AFTERNOON SESSION
          19      (Jury not present.)
          20           THE CLERK:  Court is again in session following a
          21  recess.
          22      Good afternoon, Your Honor.
          23           THE COURT:  Anything to take up before the opening
          24  statement by the government?
          25           MR. LONDON:  Not from us, Your Honor.
           1           MR. LEEN:  Nothing, Your Honor.  Just the question
           2  about the notes, that I didn't know if you wanted to resolve if
           3  the jurors were allowed to take notes.
           4      They do.  Fine.  Thank you.
           5           THE COURT:  Bring the jury.
           6           MR. LEEN:  I will be making an opening statement, Your
           7  Honor.
           8           MR. LONDON:  May we use the system on opening?  We have
           9  just two or three images we would like to project.
          10      (Jury present; 1:36 p.m.)
          11           THE COURT:  All right.  All the members of the jury are
          12  present.
          13      Opening statement, government.
          14                       *    *    *    *    *
          15                  (Opening statements not ordered.)
          16                       *    *    *    *    *.
          17           THE COURT:  All right.  First witness.
          18           MR. LONDON:  Steven Walsh.
          19              STEVEN WALSH, PLAINTIFF'S WITNESS, SWORN
          20           THE CLERK:  Please state your full name and spell your
          21  last name.
          22           THE WITNESS:  Steven Walsh.  W-a-l-s-h.
          23                        DIRECT EXAMINATION
          24  BY MR. LONDON:
          25  Q.  Mr. Walsh, can you begin by just telling us for what agency
           1  you are employed?
           2  A.  I'm currently -- excuse me.  I'm currently employed by the
           3  United States Department of Treasury Inspector General for the
           4  Tax Administration.
           5  Q.  And were you employed by the Treasury Department back in
           6  1996 and 1997?
           7  A.  Technically, no, because the agency came into existence in
           8  --
           9           MR. LEEN:  Objection, Your Honor.  He's answered the
          10  question.  He's now answering another question that hasn't been
          11  asked.
          12  Q.  (By Mr. London)  All right.  Who employed you in 1996?
          13  A.  The IRS, Office of Regional Inspector, Internal Security
          14  Division.
          15  Q.  All right.  And were you working for them in 1997 as well?
          16  A.  That's correct.
          17  Q.  All right.  Did you have occasion back in 1996 and 1997 to
          18  have any kind of official contact with the defendant in this
          19  case, James Bell?
          20  A.  Yes, I did.
          21  Q.  How did that come about?
          22  A.  I was asked to assume an undercover role, to come up into
          23  the Portland area -- or Portland, Oregon/Washington area and
          24  make contact with Mr. Bell.
          25  Q.  Where?
           1  A.  In Portland and/or Vancouver.
           2  Q.  In what context?
           3  A.  Mr. Bell had published some information on a -- on an inte-
           4  -- on an email account, I believe it was a news group, where he
           5  had offered a program called Operation Locate IRS.  The
           6  information that we had obtained, it appeared Mr. Bell was
           7  publishing home addresses of IRS employees on the, on the email
           8  Internet account.
           9  Q.  So what were you asked to do?  What was the assignment that
          10  you were given in connection with finding out about this?
          11  A.  The assignment was to try to determine what Mr. Bell's
          12  intent was with this information and why was he publishing it
          13  out on the Internet.
          14  Q.  And what did you do in order to determine the answers to
          15  those questions?
          16  A.  I -- I attended a meeting of the Multnomah County Common Law
          17  Court that had been publishing that they were trying IRS
          18  employees for various crimes.
          19  Q.  And did you reveal your identity as a federal agent?
          20  A.  No, I did not.
          21  Q.  So you were there in what capacity?
          22  A.  An undercover role.
          23  Q.  Did you join the common law court?
          24  A.  I attended and I -- and I became a member.  Now, what
          25  joining is, I don't know what that entails.  But, yes, I did
           1  attend many meetings of the common law court.
           2  Q.  Were you ever -- did you ever function in the capacity of a
           3  juror or vote on cases?
           4  A.  Yes, I did.
           5  Q.  Now, can you tell the jury, please, a little bit about the
           6  kind of trials that the com- -- that the common law court held?
           7  A.  The first one that I attended was in January of '97.  It, it
           8  was a, an individual that was suing the IRS as he had felt that
           9  the IRS had wronged him.  The IRS had -- excuse me.  I have a
          10  cold here, obviously.  I apologize for that.  The IRS, he felt,
          11  had taken his money illegally, and he was trying to get that
          12  money back.
          13  Q.  Now, in the context of any of these trials or when you were
          14  attending the common law court, did you ever hear Mr. Bell
          15  discuss Operation Locate IRS?
          16  A.  I don't believe he used that word.  He used a term, a
          17  mechanics-type thing of helping the common law court to enforce
          18  its judgments.
          19  Q.  And what did he say in that regard?
          20  A.  Words to the effect that, you know, he had a mechanic, a
          21  mechanism that would help the common law court enforce its
          22  judgment.
          23  Q.  What was that mechanism?
          24  A.  I believe it was Assassination Politics.
          25  Q.  Did he also talk about home address information?
           1  A.  Yes.
           2  Q.  What did he say about that?
           3  A.  He felt that -- he asked if the IRS employees that were
           4  being sued had been noticed of the pending court action and
           5  where they had been noticed, and he proposed serving the IRS
           6  employees at their home as it would be much more effective.
           7  Q.  I'm sorry, what's the last word?
           8  A.  Effective.
           9  Q.  Effective.
          10      Now, did Mr. Bell ever give you anything?
          11  A.  Yes, he did.
          12  Q.  What did he give you?
          13  A.  He gave me a disk that was titled "Assassination Politics."
          14  Q.  All right.  There's a series of binders on the rack next to
          15  you.  If you could look at the binder that would include Exhibit
          16  40, and please look at that exhibit and then tell the jury if
          17  you can identify it.
          18  A.  Yes.  I do have the exhibit.
          19  Q.  Do you recognize that exhibit?
          20  A.  Yes, I do.
          21  Q.  What is it?
          22  A.  That's a -- excuse me.  That's a disk I received from Mr.
          23  Bell on the 30th of January 1997.  It has handwritten notations
          24  in pencil, "AP:  A solution to the common law court enforcement
          25  problem."  Several lines down it has Jimbell@Pacifier.com, and I
           1  have written in it in my handwriting, "Received from Jim Bell
           2  1/30/97," and my initials.
           3  Q.  Did you ever have an occasion to put that diskette into a
           4  computer and see what was on it?
           5  A.  Yes, I did.
           6  Q.  And what was on it?
           7  A.  There's an essay in there entitled "Assassination Politics."
           8           MR. LONDON:  All right.  We offer Exhibit 40.
           9           MR. LEEN:  No objection.
          10           THE COURT:  40 is admitted.
          11      (Exhibit No. 40 was admitted.)
          12  Q.  (By Mr. London)  All right.  I would like to ask you now if
          13  you would look at Exhibit 38.
          14  A.  Okay, I have it.
          15  Q.  And what is Exhibit 38?
          16  A.  This is a video cassette tape that I, I received from
          17  Charles Stewart.
          18  Q.  Who is Charles Stewart?
          19  A.  Charles Stewart at the time was the chief justice of the
          20  common law court.
          21  Q.  And was it the practice of Mr. Stewart or the common law
          22  court to make videotape recordings of the meetings of the common
          23  law court?
          24  A.  Of the first two, yes.  When we attended there, they had a
          25  camera set up in the back that, when I asked Mr. Stewart what
           1  the purpose of it was, they wanted to videotape the proceedings,
           2  and they had an intention of broadcasting it --
           3           MR. LEEN:  Objection, Your Honor.  Hearsay.
           4           MR. LONDON:  I think the question has been answered.  I
           5  will move on.
           6  Q.  (By Mr. London)  Have you had a chance to look at the
           7  videotape that is Exhibit 38?
           8  A.  Yes, I have.
           9  Q.  And can you tell us what it is?  What it purports to show?
          10  A.  It purports to show the meetings of the common law court at
          11  the trial of the IRS employees.
          12  Q.  All right.  Were you present at the January 30th, 1997,
          13  meeting that is represented on that tape?
          14  A.  Yes, I was.
          15           MR. LONDON:  All right.  I offer Exhibit 38.
          16           MR. LEEN:  No objection.
          17           THE COURT:  It's admitted.
          18      (Exhibit No. 38 was admitted.)
          19           MR. LONDON:  We would like to publish that exhibit and
          20  play it for the jury.  Do we have permission to do that, Your
          21  Honor?
          22           THE COURT:  How long is it?
          23           MR. LONDON:  It's very brief.
          24           THE COURT:  All right, go ahead.
          25      (Exhibit No. 38 was played for the jury.)
           1  Q.  (By Mr. London)  Would you please look at Exhibit 25.
           2           MR. LEEN:  I'm sorry, I didn't hear what number?
           3           MR. LONDON:  25.
           4           MR. LEEN:  Thank you.
           5  A.  Yes.
           6  Q.  (By Mr. London)  Do you recognize that exhibit?
           7  A.  I don't believe so.  Is this the cassette tape?
           8           MR. LEEN:  Objection, Your Honor.  I object to the
           9  question by the juror -- I mean by the witness.
          10           THE COURT:  Where are we?
          11           MR. LONDON:  I'm asking the witness if he can tell us
          12  what Exhibit 25 is.
          13  A.  It's a cassette tape.  It has a stickum on it that reads,
          14  "MCCLC," and it's written 10-23-96.
          15  Q.  (By Mr. London)  Have you listened to that tape?
          16  A.  Yes.  Not this tape, but a copy of this tape.
          17  Q.  And have you had a chance to look at Exhibit 26?
          18  A.  Yes, I have.
          19  Q.  What is Exhibit 26?
          20  A.  That's a transcript of a portion of the meeting where it
          21  appears Mr. Bell is speaking at the, at the meeting.
          22  Q.  All right.  And have you had an opportunity to determine
          23  whether the transcript is an accurate transcript of the matter
          24  that is recorded on Exhibit 25?
          25  A.  Yes, I have.
           1           MR. LONDON:  No further questions of this witness.
           2           THE COURT:  Cross-examination.
           3           MR. LEEN:  Your Honor, I ask for all Jencks material.
           4           THE COURT:  Cross-examination.
           5           MR. LEEN:  Your Honor, I ask for Jencks material on
           6  this witness.  I don't believe I've received it.
           7           MR. LONDON:  I believe we turned over whatever Jencks
           8  material there would be for this witness.  We're not in
           9  possession of any witness statements for him.  We turned over an
          10  open-file discovery in this case.
          11           THE COURT:  Proceed.
          12                          CROSS-EXAMINATION
          13  BY MR. LEEN:
          14  Q.  Agent Walsh, did you prepare a report in connection with
          15  your attendance at the Multnomah County Common Law Court?
          16  A.  No, I did not.
          17  Q.  How many meetings did you attend?
          18  A.  I attended from January through approximately May of '97.
          19  Q.  So did they meet monthly, bimonthly, biweekly?
          20  A.  Sometimes they met weekly, sometimes biweekly, and sometimes
          21  they met monthly.
          22  Q.  How many times did Mr. Bell attend?
          23  A.  I believe Mr. Bell was at three of the meetings I attended.
          24  Q.  And how many of the meetings did you attend?  Did you keep
          25  track?
           1  A.  We have them recorded, but I don't know off the top of my
           2  head the exact number of the meetings of the common law court.
           3  Q.  A couple of dozen?
           4  A.  I would say at least a couple dozen.
           5  Q.  All right.  Now, you say in 1996 and 1997 you made contact
           6  with Mr. Bell in an undercover role.
           7  A.  That's not correct.
           8  Q.  I'm sorry, when did you make an undercover contact with Mr.
           9  Bell?
          10  A.  I believe the first contact was January of '97.
          11  Q.  And who asked you to do this?
          12  A.  It was my agency's request of me to assume the undercover
          13  assignment.
          14  Q.  Were you assigned by some supervisor?
          15  A.  I was approached by -- I don't know if it was my supervisor
          16  that was passing the message on, but the supervisor that
          17  probably handled the Oregon office.
          18  Q.  Now, does the -- do IRS special agents attend domestic
          19  political activities?
          20  A.  I wouldn't -- I don't know how to answer that, sir.
          21  Q.  Well, have you ever been engaged in domestic spying or
          22  domestic undercover goals for political groups in the United
          23  States?
          24  A.  No.
          25  Q.  This is the first time?
           1  A.  This was not a first time of doing that, sir, no.
           2  Q.  Well, my question is, you don't -- is it your belief that
           3  the Multnomah County Common Law Court was engaged in political
           4  activity?
           5  A.  We didn't know what the intent of the meeting, sir, was
           6  until we got there.
           7  Q.  Well, you've been at -- you went to a couple of dozen, you
           8  say.
           9  A.  That's correct.
          10  Q.  Did they ever have weapons?  Did they discuss assassinating
          11  any particular individual?
          12  A.  Yes, they did have weapons.
          13  Q.  Okay.  Who had weapons, sir?
          14  A.  We know at least Mr. James Beakley had a weapon who attended
          15  one of the meetings.
          16  Q.  Did Mr. Bell ever have a weapon?
          17  A.  Not that I'm aware of.
          18  Q.  Did you have a weapon when you were there?
          19  A.  Yes, I did.
          20  Q.  You served as a juror for this common law court.
          21  A.  That's correct.
          22  Q.  Did you sign documents as a juror?
          23  A.  I believe, yes, I did.
          24  Q.  Did you have to?  Were you forced to?
          25  A.  No.
           1  Q.  Why did you do that, then?
           2  A.  To maintain my role as an undercover.
           3  Q.  Were you allowed to dissent from a vote?
           4  A.  I believe so.
           5  Q.  Did you ever dissent from any vote?
           6  A.  No.
           7  Q.  Do you know the names of the individuals who were placed on
           8  trial by the Multnomah County Common Law Court?
           9  A.  Not all of them, but several of them off the top of my head,
          10  yes.
          11  Q.  Any public officials?
          12  A.  Yes.  IRS employees.
          13  Q.  How about Janet Reno?
          14  A.  She was charged initially, and I believe they dismissed
          15  against her.
          16  Q.  So she was acquitted?
          17  A.  No, she was dismissed.
          18  Q.  She wasn't found guilty.
          19  A.  That's correct.
          20           MR. LEEN:  May I step away from the lectern for a
          21  second, Your Honor?
          22           THE COURT:  Go ahead.
          23  Q.  (By Mr. Leen)  Agent Walsh, did you ever contact Mr. Bell
          24  outside the Multnomah County Common Law Court or outside that
          25  situation, either telephonically or individually, in some other
           1  location?
           2  A.  Yes, I did.
           3  Q.  Did you ask him to sell you something that was illegal?
           4  A.  No.
           5  Q.  Did you ever ask him to make you some kind of transmitter?
           6  A.  No.
           7           MR. LEEN:  One second.
           8           THE COURT:  Any other questions of this witness?
           9           MR. LEEN:  Yes, Your Honor.
          10  Q.  (By Mr. Leen)  Did you ever ask Mr. Bell about radio
          11  transmitters for FM stations?
          12  A.  I don't recall if I did.
          13  Q.  Is it possible that you did?
          14  A.  I don't know under what pre- -- under what context I would
          15  have asked him about that.
          16  Q.  Did you ever meet with him in Vancouver?
          17  A.  Yes, I did.
          18  Q.  And what was the purpose of meeting with him in Vancouver?
          19  A.  To -- I believe we had -- I made contact with him there at a
          20  meeting to find out his reactions to some of the events that had
          21  recently taken place.
          22  Q.  Meeting of what?
          23  A.  I'm sorry?
          24  Q.  You mean the Multnomah County Common Law Court was meeting
          25  in Washington?
           1  A.  No, that's incorrect.
           2  Q.  Well, what kind of meeting would cause -- did you meet with
           3  him in Vancouver, Washington?
           4  A.  I believe the meeting he was attending was the Libertarian
           5  meeting.
           6  Q.  So you were also engaged in monitoring Libertarian meetings?
           7  A.  That's incorrect.
           8  Q.  Well, did you go to a Libertarian meeting?
           9  A.  I went to the location to meet with Mr. Bell.
          10  Q.  And was there a Libertarian meeting going on?
          11  A.  I don't know what the contents of it -- I asked Mr. Bell to
          12  step out and talk to me privately.
          13  Q.  And what was the purpose of that?
          14  A.  To get his reaction to some of the recent events that had
          15  taken place.
          16  Q.  Recent events that had taken place where?
          17  A.  A combination of the -- I believe a search warrant had been
          18  executed at his location, and I believe there was another search
          19  warrant that had been executed at another location of an
          20  individual.
          21  Q.  And when was this?
          22  A.  Several days prior, a week prior.
          23  Q.  I mean, can you give us a month and a year?
          24  A.  It would have been -- this would have been May of '97, I
          25  believe, I met with Mr. Bell.  It would have been just prior to
           1  that.
           2  Q.  Did you ever make telephone calls to Mr. Bell?
           3  A.  Yes, I did.
           4  Q.  On how many occasions?
           5  A.  I believe we had nine telephonic, either contacts or
           6  attempted contacts.
           7  Q.  And during what period of time was that?
           8  A.  Again, between January and May of '97.
           9           MR. LEEN:  No further questions.
          10           THE COURT:  Redirect.
          11           MR. LONDON:  None, Your Honor.
          12           THE COURT:  You may be excused.
          13      (Witness excused.)
          14           THE COURT:  Let's take a 15-minute recess.
          15      The jury is cautioned, please do not discuss the case among
          16  yourselves or with anyone else.  Take a 15-minute recess.
          17      (Jury excused.)
          18           THE COURT:  Anything to take up?
          19           MR. LEEN:  No, Your Honor.
          20           MR. LONDON:  No, Your Honor.
          21           THE COURT:  Fifteen minutes.
          22      (Recessed at 2:55 p.m.)
          23      (Jury not present; 3:23 p.m.)
          24           THE COURT:  Anything to take up before the jury?
          25      Okay, bring the jury.
           1      Is your next witness here, Mr. London?
           2           MR. LONDON:  We're going to stipulate to the next three
           3  witnesses.
           4           THE CLERK:  They are going to have a stipulation.
           5           MR. LONDON:  We are going to ask to distribute the
           6  transcript of the tape and --
           7           THE CLERK:  Are these for the jury?
           8           MR. LONDON:  It will be for the jury, and then we will
           9  collect them back.
          10           THE CLERK:  You can distribute them to the jury.
          11           MR. LONDON:  Is that how it goes?
          12      (Jury present.)
          13           THE COURT:  The jury has returned.
          14      Next witness.
          15           MR. LONDON:  Your Honor, the next three witnesses were
          16  to be chain-of-custody witnesses for Exhibit 25, but the parties
          17  have agreed to the stipulation, which is that the jury can be
          18  told that Exhibit 25, the tape that they heard Mr. Walsh refer
          19  to, was found during the execution of the search warrant of the
          20  home of a member of the Multnomah County Common Law Court and
          21  that it can be played and that a transcript of it can be
          22  distributed to aid the jury in listening to the exhibit.
          23      So at this time we would like permission to distribute the
          24  transcript, and we offer Exhibit 25.
          25           MR. LEEN:  No objection.
           1           THE COURT:  Is this a stipulation or agreement?
           2           MR. LEEN:  Yes, Your Honor.
           3           THE COURT:  All right.
           4      Does the jury consider as evidence what they hear on the
           5  tape or what they do on the transcript?
           6           MR. LEEN:  What they hear on the tape, Your Honor.
           7           THE COURT:  All right.  Ladies and gentlemen of the
           8  jury, what you are about to hear is a transcript of a statement,
           9  but what you hear on the tape you consider as evidence, not what
          10  you have in front of you.  What you have in front of you is for
          11  the purpose of you following along -- you know, following the
          12  dot in the singing -- but it is not evidence.  It is what you
          13  hear on the tape that you are to consider as evidence in the
          14  case.
          15      Go ahead.
          16      (Exhibit No. 25 was played for the jury.)
          17           THE COURT:  All right, pass your transcripts back to
          18  the right.
          19           MR. LEEN:  Your Honor, we're going to call the next
          20  witness actually out of order.  We call Declan McCullagh.
          21           THE COURT:  Do you have a witness, counsel, or not?
          22           MR. LONDON:  Yes, Your Honor.  His attorney just went
          23  to get him.  I apologize.  I think the fact that we were able to
          24  avoid three witnesses having to testify put us in a slight
          25  change.
           2           THE CLERK:  Please state your full name and spell your
           3  last name.
           4           THE WITNESS:  My name is Declan McCullagh.  The last
           5  name is spelled M-c-C-u-l-l-a-g-h.
           6                        DIRECT EXAMINATION
           7  BY MR. LONDON:
           8  Q.  Mr. McCullagh, can you begin by telling the jury how you are
           9  employed presently?
          10  A.  Certainly.  My job is the Washington Bureau Chief for Wired
          11  News.
          12  Q.  And were you -- I take it you function as a reporter, is
          13  that correct?
          14  A.  Yes.
          15  Q.  Were you employed in that capacity back on April 14th of
          16  2000?
          17  A.  Yes.
          18  Q.  And are you the author of an article that appeared in Wired
          19  News on April 14th, 2000, that discussed or involved James
          20  Dalton Bell, the defendant here today?
          21  A.  Yes.
          22  Q.  Can you please turn to the binder to your right that would
          23  include Exhibit No. 100.  And can you open to that exhibit and
          24  tell us if you recognize what that is?
          25  A.  Could you repeat the question?
           1  Q.  Yes.  Could you look at Exhibit 100, and can you tell the
           2  members of the jury if you recognize what that is?
           3  A.  It appears to be a copy of an article I wrote.
           4  Q.  All right.  Now --
           5           MR. LONDON:  We offer 100, Your Honor.
           6           MR. LEEN:  Objection, Your Honor.  Newspaper article.
           7  Hearsay.
           8           MR. LONDON:  It contains an admission by the defendant.
           9           THE COURT:  Did he write it?
          10           MR. LEEN:  This witness wrote it.
          11           THE COURT:  Are you offering the whole exhibit or are
          12  you offering excerpts?
          13           MR. LONDON:  Well, all right, Your Honor.  Fair
          14  enough.
          15  Q.  (By Mr. London)  Let me ask you this, Mr. McCullagh.  There
          16  are quotations in that article attributed to Mr. Bell, correct?
          17  A.  Yes.
          18  Q.  All right.  And can you tell the members of the jury if
          19  those quotations accurately reflect what Mr. Bell told you in an
          20  interview that was done in preparation for that article?
          21  A.  I don't recall.
          22  Q.  So, I'm sorry, is it your testimony that you publish things
          23  without verifying the accuracy or checking your notes to see if
          24  in fact it reflects what someone has told you in an interview?
          25  A.  No.
           1  Q.  All right.  Where it says that McCullagh stated in the
           2  article that Bell plans to exact revenge on the system that
           3  imprisoned him, did Mr. Bell tell you something to that effect?
           4  A.  Where in the article, please?
           5  Q.  In Exhibit 100.
           6  A.  What paragraph?
           7      Do you mean the second paragraph?
           8  Q.  Correct.  "... he plans to exact revenge on the system that
           9  imprisoned him."
          10  A.  What is your question?
          11  Q.  Did Mr. Bell tell that to you?
          12  A.  I don't recall.
          13           MR. LONDON:  Your Honor, I want to declare the witness
          14  to be a hostile witness.
          15           THE COURT:  Ask the question again.
          16  Q.  (By Mr. London)  Please turn to Exhibit 229.  It will
          17  probably be in a different binder.
          18  A.  I have it.
          19  Q.  All right.  Turn to the second page of that article, and
          20  could you look at the fourth paragraph down, the one that
          21  begins, "Bell says that he's put" Assassination Politics on
          22  hold.
          23  A.  I see it.
          24  Q.  All right.  And where it says that he acknowledges that he
          25  has shown up at the homes of suspected BATF agents.  Do you see
           1  that there?
           2  A.  I do see that, yes.
           3  Q.  And has done DMV searches on their names.
           4  A.  I see that there, sir.
           5  Q.  All right.  Does that reflect something that Mr. Bell
           6  actually told you?
           7  A.  I don't recall him saying that.  I don't put things in
           8  articles unless people tell me things, but I do not have an
           9  independent recollection at this point that that's particularly
          10  explicitly what he said.
          11           MR. LONDON:  Your Honor, we offer 229.
          12           MR. LEEN:  Objection, Your Honor.
          13           THE COURT:  Will the jury please go to the jury room
          14  for a moment.
          15      (Jury excused; 3:36 p.m.)
          16           THE COURT:  Let me see it.
          17      Where are you referring to, counsel?
          18           MR. LONDON:  In Exhibit 229, Your Honor, there are
          19  really two statements that I have -- that I wish to elicit from
          20  this foundation testimony.
          21           THE COURT:  Where are they?
          22           MR. LONDON:  The very last paragraph on the first page,
          23  "For Bell, that meant spending the last six months compiling
          24  personal information ..."  The last paragraph on the first
          25  page.
           1      And then the fourth paragraph on next page.  The witness has
           2  already testified to that one.  I can ask him --
           3           THE COURT:  Well, he already testified to which one?
           4           MR. LONDON:  The second one.  If I can ask him about
           5  the first one, the one on the first page, then I --
           6           THE COURT:  Well, the first one is not in quotes.
           7           MR. LONDON:  Well, it's a statement attributed to --
           8           THE COURT:  It's not in quotes.
           9           MR. LONDON:  Correct.
          10           THE COURT:  Right?
          11           MR. LONDON:  Right.
          12           THE COURT:  So what in quotes are you asking him?
          13           MR. LONDON:  Well, I'm asking him if the statement --
          14  and it's not in quotes, but the first one, where it says, "that
          15  meant spending the last six months compiling personal
          16  information," if that reflects a statement that was made by the
          17  defendant to Mr. McCullagh.
          18           THE COURT:  Didn't he answer that he doesn't recall?
          19           MR. LONDON:  Not as to that one, Your Honor.  I haven't
          20  asked him about that one yet.
          21           THE COURT:  Okay.  So what other one is in dispute?
          22           MR. LONDON:  Just that one.  That's the only one I have
          23  to ask him about in this exhibit.
          24           THE COURT:  That's the only one you still have to ask
          25  him, right?
           1           MR. LONDON:  Yes.  I'm going to ask him if that
           2  attributed statement accurately reflects what Mr. Bell told him
           3  at the time.  If I can ask him that, then I will not seek to
           4  offer the entire exhibit.
           5           THE COURT:  Let's ask him now out of the presence of
           6  the jury.  Ask him the question.
           7  Q.  (By Mr. London)  Mr. McCullagh, that statement at the bottom
           8  of the first page, "For Bell, that meant spending the last six
           9  months compiling personal information about IRS and Bureau of"
          10  ATF agents, does that accurately reflect something that Mr. Bell
          11  would have said to you in the interview?
          12  A.  I don't recall him explicitly saying that.
          13  Q.  But is your answer the same, that it is your practice to
          14  accurately attribute statements to people based on what they
          15  tell you?
          16  A.  Yes.
          17  Q.  All right.
          18           MR. LONDON:  That's all I want to seek from him.
          19           THE COURT:  All right.  Bring the jury.
          20      (Jury present; 3:40 p.m.)
          21           THE COURT:  Jury has returned.
          22      What's the question, counsel?
          23  Q.  (By Mr. London)  Mr. McCullagh, returning to Exhibit 229,
          24  and turning your attention to the last paragraph on the first
          25  page, the one that says, "For Bell, that meant spending the last
           1  six months compiling personal information about IRS and Bureau
           2  of Alcohol, Tobacco, and Firearms agents, a move that appears to
           3  have led to the six-hour search of his home in Vancouver,
           4  Washington."  Does that paragraph accurately reflect a statement
           5  made to you by Mr. Bell in the course of an interview?
           6  A.  I don't recall that, sir.
           7  Q.  All right.  But is your answer the same as before, that it
           8  is your practice ordinarily to accurately state in your articles
           9  what someone you have recently interviewed has told you?
          10  A.  Yes.
          11  Q.  All right.  Turning your attention to Exhibit 100.  That's
          12  the April 14th, 2000, article that you published.  There is a
          13  statement, I turn your attention to the second full paragraph of
          14  the article, in quotes, "'If they continue to work for the
          15  government, they deserve it.  My suggestion to these people is
          16  to quit now and hope for mercy,'" comma, quote, "the 41-year-old
          17  Washington state native said in a telephone interview this
          18  week..."
          19      Did you write that quote?
          20  A.  Yes, I wrote that quote.
          21  Q.  And was that quote based on a statement that Mr. Bell made
          22  to you in a telephone interview?
          23  A.  I don't recall if that was the exact statement he gave me.
          24  Q.  All right.  So, once again, though, is it your practice to
          25  accurately attribute things in quotations based on your best
           1  memory of what someone has said to you?
           2  A.  Yes.
           3  Q.  All right.
           4           MR. LONDON:  Nothing further, Your Honor.
           5           THE COURT:  Cross-examination.
           6           MR. LEEN:  Thank you, Your Honor.
           7                        CROSS-EXAMINATION
           8  BY MR. LEEN:
           9  Q.  Mr. McCullagh, have you also spoken to Agent Jeffrey Gordon?
          10  A.  Sir, I most respectfully decline to answer that question.
          11  I'm citing my First Amendment privileges as a journalist.
          12  Q.  Referring your attention to the April 14th, 2000,
          13  interview.  Do you have that?  I think that was No. 100.
          14  A.  I have it in front of me, yes.
          15  Q.  On the second page, 2 of 4, the third paragraph down, it
          16  says, "IRS inspector Jeff Gordon, who now regularly monitors the
          17  cyberpunks mailing list, took it personally ..."
          18      How did you become aware of that information, sir?  Did
          19  someone tell you that?
          20  A.  If you look at that paragraph carefully, you'll see that
          21  there are two links.  These are web links.  You can click on
          22  them.  They are also called hyperlinks.  The second one uses --
          23  that is linked to the word "likening."
          24  Q.  Yes, sir.
          25  A.  Goes to what I recall is an affidavit submitted by Jeff
           1  Gordon, who is, of course, here in this room today.  And so that
           2  is based on the affidavit that is part of the public record.
           3  Q.  All right.  And that's where you derived that piece of
           4  information?
           5  A.  I don't recall.  I presume so.
           6  Q.  Referring to Exhibit, I believe it was, 229, the November 11
           7  article.
           8  A.  I have it in front of me.
           9  Q.  Referring on the first page to the third paragraph, starting
          10  with the quotation, "'They're basically trying to harass me,'"
          11  close quote, "Bell said in a telephone interview."  In an
          12  article that you write, if you put something in quotes, should
          13  the reader rely on the fact that you, to the best of your
          14  ability, are putting down exactly what the person said?
          15  A.  Yes.
          16  Q.  Did Mr. Bell tell you that he felt he was being harassed by
          17  the government?
          18  A.  From this article, it certainly looks that way, yes.  I
          19  believe that is what the article says.
          20  Q.  On the second page of that same article, page 229 -- and
          21  this is an article dated November 11th, 2000.  On the second and
          22  third paragraph from the end.
          23  A.  I see it.
          24  Q.  It says, in quotes, "'I am thinking very strongly of
          25  picketing (IRS Agent) Jeff Gordon's house.  I don't intend to
           1  violate any laws when I do that.  It's conceivable that they
           2  won't appreciate my picketing their house,'" close quote, "Bell
           3  says."
           4      Again, I ask you, you put those statements attributed to Mr.
           5  Bell in quotes.  To the best of your ability, was that an exact
           6  quote?
           7  A.  Yes.
           8  Q.  An exact statement that Mr. Bell made?
           9  A.  Yes.
          10  Q.  All right.  The next paragraph is in quotes, also.  It says,
          11  "'I wasn't [at] all that happy before, but I'm hopping mad,'"
          12  and then it trails off, dot dot dot.  "'If you think this is
          13  going to stop me, baloney,' he says.  'Needless to say I'm
          14  feeling very hostile.  But I don't intend to violate
          15  black-letter Oregon law.'"
          16      Again, that paragraph was in quotes.  The fact that that
          17  part of the article was in quotes, again, was that your best
          18  ability to convey to the reader what you were told by Mr. Bell?
          19  A.  Yes.
          20  Q.  All right.  Had Mr. Bell complained to you that he was
          21  compiling evidence of illegal government surveillance against
          22  him at other times that you interviewed him?
          23  A.  Sir, that is outside the scope of the article, and I must
          24  respectfully decline to answer that question based on my First
          25  Amendment privilege as a journalist.
           1  Q.  Did you write an article on November 21st, "Cyber-Terrorist
           2  Jailed Again"?
           3  A.  I believe I may have.  I don't know if that's the date.  I
           4  don't have that article in front of me, nor was I required to
           5  bring it.
           6  Q.  Do you -- do you recall writing in such an article, "Bell
           7  claimed he was compiling evidence of a government conspiracy to
           8  conduct illegal surveillance against him and unlawfully bug his
           9  home."  Quote, "'One guess is that I was getting a little too
          10  close to these people,'" close quote, "Bell said."
          11  A.  I have not had a chance to review that article.  I do not
          12  have it in front of me, nor do I recall that.
          13  Q.  Do you recall Bell also saying, "The double standard" --
          14  quote, "'The double standard here is simply incredible,'" close
          15  quote.  Quote, "'They simply don't like the idea that Jim Bell
          16  can simply look through a few databases, find one of their
          17  people and publish the name on the Internet.  They hate that.'"
          18      Do you recall writing that or something like that in one of
          19  your articles on November 21st?
          20  A.  I don't recall the defendant using those exact words.  If
          21  it's in my article, I presume it's as accurate as I could make
          22  it.
          23  Q.  Are you a member of the Cypherpunks mail list?
          24  A.  Sir, again, that is outside the scope of this article.  My
          25  membership is outside the scope of this article, or lack of
           1  membership, and I must respectfully decline to answer that
           2  question, citing my First Amendment privilege as a journalist.
           3           MR. LEEN:  One moment.
           4  Q.  (By Mr. Leen)  Are you aware of the person named Eric Hughes
           5  who wrote the Cypherpunks Manifesto?
           6           THE COURT:  You're way outside the direct, counsel.
           7           MR. LEEN:  No further questions, Your Honor.  Thank
           8  you.
           9           THE COURT:  Any redirect?
          10           MR. LONDON:  Very briefly.  One question.
          11                       REDIRECT EXAMINATION
          12  BY MR. LONDON:
          13  Q.  I neglected to ask you this, but again, in Exhibit 100, on
          14  page 2 of 4, if you would turn your attention to the very next
          15  to the last paragraph.
          16  A.  Yes.
          17  Q.  "Bell repeatedly claims that he won't break the law
          18  himself."  Quote, "'I'm" not going to kill them off,' he said.
          19  'Other people are going to do that.  I'm going to promote a
          20  system.'"
          21      Does that quotation accurately reflect what Mr. Bell told
          22  you?
          23  A.  I do not recall.
          24           MR. LONDON:  Thank you, Your Honor.
          25           THE COURT:  Redirect -- recross, I'm sorry.
           1           MR. LEEN:  Thank you, Your Honor.
           2                         RECROSS-EXAMINATION
           3  BY MR. LEEN:
           4  Q.  Mr. McCullagh, the same article.  Do you recall writing in
           5  that article that in reference to that system Mr. Bell was
           6  talking about, that Laissez Faire City Times has published a
           7  copy of the essay and called it "a thought experiment on one of
           8  the consequences of the digital society"?
           9           THE COURT:  You're outside the redirect, counsel.
          10           MR. LEEN:  Thank you, Your Honor.  No further
          11  questions.
          12           THE COURT:  The witness may be excused.
          13           THE WITNESS:  Thank you.
          14      (Witness excused.)
          15           THE COURT:  Next witness.
          16           MR. LONDON:  We call Cindy Brown, Your Honor.
          17      Counsel for Mr. McCullagh has asked me to state for the
          18  record the government has no objection to Mr. McCullagh
          19  attending the trial now that his testimony is complete.
          20           THE COURT:  Next witness.
          21               CINDY BROWN, PLAINTIFF'S WITNESS, SWORN
          22                         DIRECT EXAMINATION
          23  BY MR. LONDON:
          24  Q.  Good afternoon, Ms. Brown.
          25      Can you begin by telling us your name, and spell your last
           1  name, please, for the court reporter.
           2  A.  Cindy Brown.  B-r-o-w-n.
           3  Q.  And in 1997, how were you employed?
           4  A.  I was the inspector for the Internal Security Division of
           5  IRS.
           6  Q.  And were you present at the scene of the execution of the
           7  search warrant of the defendant in this case, Jim Bell's
           8  residence, at 7214 Corregidor, Vancouver, Washington, on
           9  April 1st, 1997?
          10  A.  Yes, I was.
          11  Q.  In what capacity were you there at the execution of the
          12  search warrant?
          13  A.  I was there to search and was the seizing agent for the
          14  evidence.
          15  Q.  All right.  Can you please open -- there's a series of
          16  binders to your right.  I'm going to ask you to just look at the
          17  binders by number now.  Turn to the binder that would contain
          18  Exhibit 44.
          19  A.  Okay.
          20  Q.  All right.  I'm going to ask you if you can look at Exhibit
          21  44, and if you can identify it, and tell the jury what it is?
          22  A.  It's a computer CPU that was seized during the execution of
          23  that search warrant.
          24  Q.  In fact, is that -- in the binder which you have, there is a
          25  photograph, correct?
           1  A.  Correct.
           2  Q.  So it's your testimony that that's a photograph of the
           3  computer that was seized?
           4  A.  Yes.
           5  Q.  Is that the computer that was known or identified, labeled
           6  by you as K-1?
           7  A.  Yes, it is.
           8  Q.  All right.  Now, did you -- were you present after the
           9  seizure of that computer when the computer there, identified as
          10  K-1, was downloaded?
          11  A.  Yes, I was.
          12  Q.  All right.  And what can you tell us about the process that
          13  was used to download this computer which you witnessed?
          14  A.  I was working with the ATF SCERS agent who handles this
          15  technical aspect of downloading computers, and he used the hard
          16  drive from that computer and downloaded that information.  I
          17  think it's what's called a bit stream.  It's a bit-by-bit copy
          18  of the hard drive onto another format, and then from there, data
          19  or emails or what have you was pulled down from that image,
          20  mirror image, of the hard drive.
          21  Q.  Now, when you talk about the downloading, were you present
          22  while emails were actually downloaded --
          23  A.  Yes, I was.
          24  Q.  -- and then printed out into hard copy form?
          25  A.  Yes, I was.
           1  Q.  And can you testify and assure the jury that to the best of
           2  your knowledge that the emails that were printed out were not
           3  altered in any way or the contents wasn't altered in any way
           4  from the form they would have had on the computer as left there
           5  in their last form by whoever did it?
           6  A.  No, they were not.
           7  Q.  All right.  Can you please turn to Exhibit 1.
           8           THE COURT:  Counsel, let me make a suggestion to you.
           9  You use the word in computer life, download.  Maybe some of the
          10  jurors don't know.  Why don't you ask the witness what she means
          11  by that.
          12           MR. LONDON:  True enough.  Thank you, Your Honor.
          13  Actually, I will.
          14  Q.  (By Mr. London)  Ms. Brown, that is a good point in the
          15  sense that not all of us are all that familiar today with
          16  computers.  But what does the term "download" mean?
          17  A.  To me it means we basically looked up information on the
          18  computer, just like accessing a file, and then we printed that
          19  file.  And that's what I meant by downloading.
          20  Q.  All right.  Now, does a file correspond to a particular
          21  document that's been written on the computer?
          22  A.  Correct.
          23  Q.  By downloading, you're talking about printing that document
          24  out?
          25  A.  Correct.
           1  Q.  Okay.  So please turn to Exhibit 1.
           2  A.  Okay.
           3  Q.  All right.  Can you tell -- can you look at that and tell us
           4  if you recognize it?
           5  A.  Yes, I do.
           6  Q.  What is that?
           7  A.  It's a letter, appears, addressed to Green Panthers, Terry
           8  Mitchell, and at the bottom it has my initials and date, and
           9  then the path, the computer path.  When you print out a document
          10  or print out documents, they were in subdirectories of other
          11  directories on the computer.  So I have the path, and then my
          12  initials and date on the document.
          13  Q.  All right.  And please turn to Exhibit 6.
          14  A.  Okay.
          15  Q.  Can you tell us what that is?
          16  A.  That is another document that we printed from the hard
          17  drive.  Again, it has my initials and date on it, and it appears
          18  to be names and addresses.
          19  Q.  Names and addresses of what?  Do you recognize any of those
          20  names or any of those addresses?
          21  A.  Yes, I do.  The address -- most of the addresses --
          22           MR. LEEN:  Objection, Your Honor.  I think -- I
          23  object.  The witness is calling for conclusion.  She didn't
          24  prepare this document.  In the sense that she --
          25           THE COURT:  I thought the question was, do you
           1  recognize something?
           2           MR. LEEN:  All right.  Okay.  I withdraw my objection.
           3           THE COURT:  What's the question again?
           4  Q.  (By Mr. London)  There's a list of names on this document
           5  which you mentioned.  I asked you if you recognize any of the
           6  names on this exhibit.
           7  A.  Yes, I do.
           8  Q.  Okay.  Specifically, which names do you recognize and how do
           9  you recognize them?
          10  A.  I recognize Oscar Johnson, who is a federal protective
          11  service officer at the Portland Federal Building.  And the
          12  address on all these, 1220 Southwest Third Avenue, or Southwest
          13  Third, is the location of the Federal Building in Portland,
          14  Oregon.  Michael John Maney, who is a criminal investigator for
          15  IRS.  Debbie Jo Meyer, criminal investigator for IRS.  Mike
          16  Schulz, who was in the exam division.  So just on this first
          17  page, I recognize at least those.
          18           MR. LONDON:  I offer Exhibit 6.
          19           MR. LEEN:  Your Honor, I object as to relevance, and
          20  also that it's stale information.
          21           THE COURT:  6 is admitted.
          22      (Exhibit No. 6 was admitted.)
          23  Q.  (By Mr. London)  Would you turn to Exhibit 10, please.
          24  A.  Yes.
          25  Q.  Do you recognize 10?
           1  A.  Yes, I do.
           2  Q.  What is 10?
           3  A.  10 is an email to Stanton McCandlish from Jim Bell, and the
           4  subject is regarding Assassination Politics.  And it has my
           5  initials and date on it.
           6  Q.  Will you turn to the second page of 10.
           7  A.  Okay.
           8  Q.  Strike that.
           9  A.  Okay.
          10  Q.  Can you please --
          11           MR. LONDON:  I'm going to offer 10 at this time.  I'm
          12  not going to ask the witness to read from 10.
          13           MR. LEEN:  Your Honor, 10 is dated October 24th, 1995.
          14  We object.  It's not relevant to these procedures.
          15           MR. LONDON:  It's relevant, Your Honor, because there's
          16  a statement in there that makes it quite clear that -- well,
          17  Your Honor, without saying what the statement is, it goes to
          18  knowledge, motive, plan, and intent in terms of the activity
          19  involved.
          20           THE COURT:  10 is admitted.
          21      (Exhibit No. 10 was admitted.)
          22  Q.  (By Mr. London)  All right.  Can you turn to page 2 of 10.
          23  A.  Page 2 of Exhibit 10?
          24  Q.  Of Exhibit 10, correct.
          25  A.  Okay.
           1  Q.  The third full paragraph down.
           2  A.  Okay.
           3  Q.  The sentence that begins, "If my estimates are correct."
           4  Can you read that, please?
           5  A.  Yes, I can.
           6           MR. LEEN:  Objection, Your Honor.  The document speaks
           7  for itself.
           8           THE COURT:  She may read it.
           9  A.  "If my estimates are correct, for each person actually
          10  killed, at least 20 will resign, or a half million people, which
          11  will constitute the vast majority of most threatening government
          12  agencies."
          13  Q.  (By Mr. Leen)  The next sentence, please.
          14  A.  "Once the tax collectors resign, everyone else will be on
          15  their way out anyway."
          16  Q.  All right.  And just skipping ahead, one more full
          17  paragraph, to the paragraph that begins, "However, there is an
          18  alternative:"  Can you just simply read the next.
          19  A.  "This system could become the enforcement system for
          20  'common-law' or 'constitutional' courts, _currently_ being set
          21  up all over the country as a bulwark against an
          22  overly-aggressive government."
          23  Q.  Please turn to 11, Exhibit 11.
          24  A.  Okay.
          25  Q.  All right.  Do you recognize Exhibit 11?
           1  A.  Yes, I do.
           2  Q.  What is it?
           3  A.  It's another email from Jim Bell to Rich Graves.  Subject is
           4  regarding sarin and regarding when they come -- when they came
           5  for the Jews, and again it was printed out.  I have my initials
           6  and date in the corner.
           7  Q.  All right.  Can you --
           8           MR. LONDON:  I offer Exhibit 11.
           9           MR. LEEN:  Objection, Your Honor.  Irrelevant, stale.
          10  It's dated January 12th, 1996.  It's free speech.  It also is
          11  highly prejudicial.
          12           MR. LONDON:  Your Honor, one of the elements that the
          13  government has to prove in this case is that the victims of the
          14  stalking behavior were reasonably in fear for their safety.
          15           THE COURT:  11 is admitted.
          16           MR. LONDON:  Thank you.
          17      (Exhibit No. 11 was admitted.)
          18           MR. LONDON:  Your Honor, would the witness please --
          19  Q.  (By Mr. London)  Ms. Brown, would you please turn your
          20  attention to the very last paragraph on the first page of this
          21  two-page email.
          22  A.  Uh-huh.  Read it?
          23  Q.  "Sarin is not the type of weapon," can you read that,
          24  please?
          25  A.  "Sarin is not the type" --
           1           MR. LEEN:  I'm sorry --
           2  A.  -- "of weapon that can be made in the home."
           3           THE COURT:  Just a minute.  Just a minute.
           4           MR. LEEN:  I'm sorry, I lost track of where we were.
           5  What page are we on, counsel?
           6           MR. LONDON:  We're on the very first page of a two-page
           7  exhibit, Exhibit 11.
           8           MR. LEEN:  Okay.
           9           THE COURT:  Go ahead.
          10           MR. LEEN:  I apologize.
          11  Q.  (By Mr. London)  First of all, before I ask you to read
          12  that, you will notice that there's some little caret marks to
          13  the left of some text but not to the left of other text on the
          14  emails.  What do caret marks denote?
          15  A.  Caret marks denote the order of which the emails -- these
          16  are emails where they were sent from one person and then the
          17  person responds and then they respond again, and the portions
          18  with the most carets are the oldest part of the email.  The
          19  portion without any carets at all are -- is the current text of
          20  the email.
          21  Q.  All right.  Now, if there's no caret next to text, who does
          22  it indicate was the author of that text?
          23  A.  Jim Bell.
          24  Q.  All right.  Now, at the bottom of page 1 there is text with
          25  a caret next to it, correct?  What does that say?
           1  A.  That says, "Sarin is not the type of weapon that can be made
           2  in the home."
           3  Q.  All right.  Please continue to the top of the next page
           4  where now there is no caret.
           5  A.  "Speak for yourself!  I've made it in my home!  (Of course,
           6  with a bachelor's degree in chemistry from MIT (1980) I have the
           7  background to do it.  Didn't do it for any malicious purpose
           8  (this was years ago), but 'just for fun.'"
           9  Q.  All right.  Please turn to Exhibit 13.
          10  A.  Okay.
          11  Q.  Do you recognize Exhibit 13?
          12  A.  Yes, I do.
          13  Q.  What is it?
          14  A.  It's an email from Jim Bell to dlv.  It's an email address
          15  regarding:  Online Zakat Payment: Religious tithe.  It has my
          16  initials and date on the bottom, the date it was printed.
          17           MR. LONDON:  I offer 13.
          18           MR. LEEN:  Objection, Your Honor.  This was dated
          19  February 20th, 1996.  It's stale information.  It's not relevant
          20  to charges in 2000.
          21           MR. LONDON:  The same response to the objection.
          22           THE COURT:  13 is admitted.
          23      (Exhibit No. 13 was admitted.)
          24  Q.  (By Mr. London)  Please turn to the paragraph, about the
          25  second or third down, without the carets, "The first thing to
           1  remember is:"  Can you please read that?
           2  A.  Okay.  "The first thing to remember is:  Never make a
           3  chemist angry at you.  A crooked person sued my company a dozen
           4  years ago, and his lawyer was in on the scam...  Said lawyer
           5  found a quart of 'mercaptan' (the chemical producing the stench
           6  found in natural gas, in parts-per-million quantities) sprayed
           7  inside his locked, alarmed building.  The place was unoccupiable
           8  for three weeks; the disgusting odor saturated the carpet, the
           9  plasterboard, the furniture, the files, the law books..."
          10  Q.  Okay.  And the next paragraph.
          11  A.  "With my chemical background, they all knew who did it, but
          12  they had no idea" it was done -- or "how it was done and they
          13  didn't have a bit of evidence.  Lawyer dropped case a week
          14  later."
          15  Q.  Would you please turn to Exhibit 14.
          16  A.  Okay.
          17  Q.  Do you recognize that exhibit?
          18  A.  Yes, I do.
          19  Q.  And what is it?
          20  A.  It's an email to Blanc from Jim Bell.  My initials and date
          21  are again on the corner, and this email is dated May 5th, 1996.
          22           MR. LONDON:  I offer 15.
          23           THE COURT:  14?
          24           MR. LONDON:  I'm sorry, 14.
          25           MR. LEEN:  Your Honor, objection.  This is dated May
           1  5th, 1996.  It's not relevant to these charges.  It's highly
           2  prejudicial.
           3           THE COURT:  14 is admitted.
           4      (Exhibit No. 14 was admitted.)
           5  Q.  (By Mr. London)  Can you please read the very last
           6  paragraph, and tell the jury, first, whether, according to the
           7  carets, that would be attributable to Mr. Bell or to his
           8  correspondent?
           9  A.  This would be attributable to Mr. Bell.  There are no
          10  carets.  "Let's turn this around, shall we?  I have a theory
          11  that within the next few years, one of the biggest users of
          12  these off-shore accounts will be government employees who see
          13  their worlds crashing down around them, and they want to be able
          14  to escape the country with their loot.  Maybe the most useful
          15  task we could accomplish would be to identify them for later
          16  targeting."
          17  Q.  I'm sorry, to identify them what?
          18  A.  For later targeting.
          19  Q.  Please turn to 15.
          20  A.  Okay.
          21  Q.  Do you recognize that?
          22  A.  Yes, I do.
          23  Q.  What is 15?
          24  A.  It's an email to nwlibertarians from Jim Bell, dated May
          25  3rd, 1996.  And again my initials and date are in the corner.
           1           MR. LONDON:  We offer 15.
           2           MR. LEEN:  Objection for the grounds previously stated
           3  for the other emails, Your Honor.
           4           MR. LONDON:  The same response.
           5           THE COURT:  It will be admitted.
           6      (Exhibit No. 15 was admitted.)
           7  Q.  (By Mr. London)  Please turn to the second sentence of the
           8  first paragraph and read that for the jury.
           9  A.  "I propose that the name and address of every IRS employee
          10  in the state of Oregon be identified and located and published."
          11  Q.  Can you please read --
          12           MR. LEEN:  Objection, Your Honor.  I'd ask that they
          13  read the full paragraph at this time so it will be complete.
          14           THE COURT:  Well, you can read it.
          15           MR. LEEN:  I believe that the rule says it has to be
          16  entered at this time, not during cross.
          17           THE COURT:  Oh, you can read it.
          18           MR. LEEN:  All right.
          19  Q.  (By Mr. London)  Please read the next paragraph.
          20  A.  Okay.  "This project would fire up the imaginations of the
          21  public, who would begin to see that libertarians really care for
          22  their rights, and also would recognize that governments are
          23  fundamentally weak if their agents are identifiable and
          24  locatable.  It would also act somewhat as a deterrent to those
          25  same statist agents:  These people don't know exactly what we
           1  intend to do with this information, or what we (or others) may
           2  decide to do in the future.  They can well imagine a breakdown
           3  in order sufficient to allow people armed with such a database
           4  to.... well, you get the idea.  (Their imaginations will be
           5  their worst enemy.)  We needn't concern ourselves with these
           6  future issues.  It is very likely that these people will be far
           7  more pliable and less abusive in the future if they are
           8  well-known."
           9  Q.  Will you please turn --
          10           THE COURT:  Just a moment, counsel.
          11      Is there anything else now that has been unread in 15?
          12           MR. LONDON:  There are another two paragraphs that are
          13  unread and -- or three paragraphs, and then there's a portion of
          14  the first paragraph.
          15           THE COURT:  Do you want them read?
          16           MR. LEEN:  Yes, Your Honor.
          17           THE COURT:  All right, read them.
          18  A.  Okay.  Starting from the beginning or --
          19  Q.  (By Mr. London)  Starting from the beginning.
          20  A.  Okay.  The first part of the first paragraph that was not
          21  read was, "I want to propose a project that the LPO (Libertarian
          22  Party of Oregon) and Oregon libertarians can do, to really help
          23  push freedom and shake up the statists."  And then we read from
          24  there.
          25  Q.  Right.
           1  A.  The next picks up, that "We should take advantage of the
           2  advent of computers and databases to do this.  I already have a
           3  fresh copy of the Oregon state DMV database, and as I understand
           4  it, each registered political party in Oregon is entitled to
           5  get, free, a copy of the voter's registration database from
           6  every county.  The combination of these two databases, plus the
           7  more common two-disk CDROM telephone directories of the US,
           8  should make it relatively easy to find somebody once a name is
           9  identified.
          10      "The recent noting of the license plate number at that IRS
          11  raid in Clackamas, plus the common practice of naming IRS agents
          12  in newspaper articles and television news reports, should allow
          13  us a good start.  (See, for example, the article on page" blank
          14  "of today's Oregonian.)  There are other tactics to get names,
          15  which I won't go into in this note.  Ultimately, I think it is
          16  likely that we will get the vast majority of such names, and the
          17  results can be publicized.
          18      "In fact, I think we have a moral responsibility to do
          19  this."
          20           MR. LONDON:  I believe that completes the reading of
          21  all previously unread portions.
          22           THE COURT:  Next.
          23  Q.  (By Mr. London)  Will you please turn to Exhibit 18.
          24  A.  Okay.
          25  Q.  Do you recognize 18?
           1  A.  Yes, I do.
           2  Q.  What is 18?
           3  A.  It's an email from Jim Bell to NWLibs, dated May 23rd,
           4  1996.  Again, my initials and date are on the bottom corner.
           5           MR. LONDON:  I offer 18.
           6           MR. LEEN:  Your Honor, same objection.  I also would
           7  point out these are part of the prosecution in 1997.
           8           THE COURT:  Overruled.  They will be admitted.  18 is
           9  admitted.
          10      (Exhibit No. 18 was admitted.)
          11  Q.  (By Mr. London)  Would you please read the next to the last
          12  paragraph?
          13  A.  "My use of the term 'a bit'" -- again, this is coming from
          14  Jim Bell.  "My use of the term 'a bit hardball' is intended to
          15  reflect how these employees will view other people learning
          16  their addresses, not necessarily hardball by our standards.
          17  Remember, these people are used to the idea that they are
          18  anonymous and should stay that way for their health.  Their
          19  discovery that they are being catalogued and indexed may have a
          20  substantial effect on them.  That, indeed, is the goal."
          21           MR. LEEN:  I object, Your Honor, unless the next
          22  paragraph is read under the rules of completeness.
          23           MR. LONDON:  No objection.
          24           THE COURT:  Read the next paragraph.
          25  A.  "This isn't just for fun.  The way these people treat
           1  citizens might be substantially improved as a result, and during
           2  a societal crisis they might be induced to flee rather than stay
           3  and fight.  So ironically, listing them may actually save
           4  lives."
           5  Q.  Please turn to 27.
           6  A.  27?
           7  Q.  Yes.
           8  A.  Okay.
           9  Q.  Do you recognize 27?
          10  A.  Yes, I do.
          11  Q.  What is 27?
          12  A.  It's a document that was seized during the search warrant.
          13  It's a yellow -- from a yellow small note pad.  It has my
          14  initials and date on the back of it.
          15      Should I describe it?
          16  Q.  There's a reference in there to Lynn Rose.  Can you please
          17  tell us who Lynn Rose is?
          18  A.  Lynn Rose is an IRS special agent.
          19           MR. LONDON:  And I offer 27.
          20           MR. LEEN:  Object, Your Honor.  This is part and parcel
          21  of the 1997 prosecution.  It's not relevant to these
          22  proceedings.
          23           THE COURT:  Was it seized in the search?
          24           MR. LONDON:  It was.
          25           THE COURT:  It will be admitted.
           1      (Exhibit No. 27 was admitted.)
           2  Q.  (By Mr. London)  All right.  Can you please read, as best
           3  you can, the text of this handwritten note?
           4  A.  It's "Lynn Rose, IR Agent."  There's a big black blot on
           5  it. "Found!  Give info to Jeff Weakley, PO Box 962, Boring
           6  Oregon 97009.
           7      "Hm 255-2527 255.
           8      "Day 668-4941."
           9  Q.  Do you know who Jeff Weakley is?
          10  A.  He was a member of the common law courts, I believe.
          11  Q.  Can you please turn to Exhibit 30.
          12  A.  Excuse me, which one?
          13  Q.  30.
          14  A.  30.  Okay.
          15  Q.  Can you tell us if you recognize that?
          16  A.  This was another document that was seized during the search
          17  warrant.  I have my initials and date on the back of it.  It
          18  looks like it was an email to Jim Bell from Dick Lancial.
          19  Q.  And there are a number of names listed in there.  Can you
          20  recognize any of the names of individuals?
          21  A.  Yes, I recognize many of them.
          22           MR. LEEN:  Objection, Your Honor, to any testimony
          23  about a document that wasn't authored by Mr. Bell but by someone
          24  else.  It's hearsay.
          25           THE COURT:  All right.  I will sustain that objection.
           1  Q.  (By Mr. London)  What -- if you look at that exhibit, what
           2  does Mr. Lancial appear to be asking Mr. Bell to do?
           3  A.  He introduces himself as part of the Multnomah County Common
           4  Law Court and he gives names of IRS employees.
           5           MR. LEEN:  Objection.  Hearsay.
           6           THE COURT:  Sustain the objection.
           7           MR. LEEN:  Move to strike, Your Honor.
           8           MR. LONDON:  It's not offered for the truth of the
           9  matter asserted therein --
          10           THE COURT:  Sustain the objection.
          11  Q.  (By Mr. London)  The names that you recognize on that
          12  document --
          13  A.  Um-hmm.
          14  Q.  How do you recognize them?
          15  A.  They are IRS employees.
          16  Q.  Who is Dick Lancial?
          17           MR. LEEN:  Objection, Your Honor.
          18           THE COURT:  She may answer that.
          19  A.  Dick Lancial was part of the common law court of Multnomah
          20  County.
          21  Q.  (By Mr. London)  What is the subject matter of this email
          22  exchange?
          23  A.  It's the collection of names and addresses of IRS
          24  employees.
          25           MR. LEEN:  Objection.  That's not what the document
           1  says.
           2           THE COURT:  Pardon?
           3           MR. LEEN:  It's not what the document says.
           4  Q.  (By Mr. London)  Just what the subject line of the email
           5  is.
           6  A.  "Names and addresses of IRS thugs."
           7           MR. LONDON:  I offer 30.
           8           MR. LEEN:  Objection, Your Honor.  This document was
           9  not written by the defendant.  It's hearsay.
          10           MR. LONDON:  It has relevance --
          11           THE COURT:  Is the document subject to editing?
          12           MR. LEEN:  Yes.  The only --
          13           THE COURT:  As far as it identifies IRS employees, I'm
          14  going to admit it.  She says she recognizes them as -- the
          15  witness, as IRS.  But what they say, I will sustain your
          16  objection as hearsay.
          17           MR. LEEN:  Also, I just add that it was -- the date of
          18  the email is October 25th, 1996.  So I raise the other objection
          19  -- the similar objections I've raised with other email as this
          20  was prior to the first prosecution.
          21           THE COURT:  Same ruling.
          22           MR. LEEN:  Yes, sir.
          23           THE COURT:  As to identification of IRS employees, it
          24  may stand.
          25           MR. LEEN:  Yes, sir.
           1  Q.  (By Mr. London)  Can you turn to the second full paragraph,
           2  "If you wouldn't mind running."  Can you read that, please?
           3  A.  Second paragraph?
           4  Q.  This is now, presumably, from Lancial to Bell.
           5  A.  "If you wouldn't mind running the following names for me,
           6  I'd be much obliged.... so far as I know, they are all with the
           7  IRS."
           8           MR. LEEN:  Objection, Your Honor.  That was -- the
           9  court denied the admission of that.  It contains hearsay.
          10           THE COURT:  She's identified, I assume, those people
          11  who were mentioned as being IRS agents.
          12           MR. LEEN:  Yes, sir.
          13           THE COURT:  Isn't that just a repetition of that?
          14           MR. LEEN:  It's hearsay, Your Honor.
          15           THE COURT:  Next question.
          16  Q.  (By Mr. London)  Please turn to Exhibit 33.
          17  A.  Okay.
          18  Q.  Do you recognize 33?
          19  A.  Yes, I do.  It's an email from Jim Bell to John Salter,
          20  dated October 30th, 1996, and this was one we printed from the
          21  hard drive on 1/19.  It has my initials and date down at the
          22  bottom.
          23  Q.  And the subject line on this one, and I'm going to have to
          24  ask you to spell out that chemical term for the court reporter
          25  because I know that will be impossible otherwise.
           1  A.  The subject line?
           2  Q.  Yes, subject line.
           3  A.  Regarding?
           4  Q.  Fourth line in the header.
           5  A.  "Re: hello ellen," e-l-l-e-n.
           6  Q.  I'm sorry, I was in 32.  Are you in 32?
           7  A.  Oh, it's Exhibit 33.  I'm sorry.  It didn't make any sense.
           8      Okay, 32.  And this is an email to un- -- n-c-l-e-a-l-0,
           9  from Jim Bell, dated October 27th, 1996.  My initials and date
          10  are at the bottom.
          11  Q.  And subject line?
          12  A.  Okay.  Regarding, "Help, I need some info on," the spelling
          13  is q-u-i-n-u-c-l-i-d-i-n-y-l.  The second word is
          14  b-e-n-z-i-l-a-t-e.
          15  Q.  So, do you know what that is?
          16  A.  It looks to me it's a chemical of some sort.
          17           MR. LONDON:  I offer 32.
          18           MR. LEEN:  Objection, Your Honor.  This is October 27,
          19  1996, so I raise the objections I raised before.
          20           THE COURT:  Is it from the defendant?
          21           MR. LEEN:  The testimony is it is from his hard drive.
          22  And it's from him to --
          23           THE COURT:  From Mr. Bell's hard drive?
          24           MR. LEEN:  Yes, it's from him to someone else.
          25           THE COURT:  It will stand.  It will be admitted.
           1      (Exhibit No. 32 was admitted.)
           2  Q.  (By Mr. London)  All right.  Can you please read the second
           3  paragraph, the one without the carets, that would be
           4  attributable to Mr. Bell.
           5  A.  Okay.  "My work has been primarily electronics and
           6  computers, not programming, so my post-degree experience is
           7  limited.  However, I did synthesize a couple of grams of Sarin
           8  about ten years ago.  Except for a tiny bit of chest-tightness
           9  (the first symptom for exposure by air), I was unaffected."
          10           THE COURT:  Counsel, why don't you have the witness
          11  explain to the jury what carets are.
          12           MR. LONDON:  Well, Your Honor, I did ask her to explain
          13  carets, and I think that she did indicate, at least that in an
          14  email correspondence, carets, or the absence of carets, are used
          15  to denote one person talking and then another person talking,
          16  and where there's an absence of carets --
          17           THE COURT:  Why don't you have the witness explain it.
          18           MR. LONDON:  All right.
          19  Q.  (By Mr. London)  Well, let me ask you, Ms. Brown.  In email
          20  correspondence, what is the significance of carets?
          21  A.  It denotes the order in which the emails were received back
          22  and forth.  When you have two people emailing each other or
          23  forwarding an email from someone else, the oldest portion of
          24  that email will have the most carets.  In this one in
          25  particular, there is a portion of it that would have three
           1  carets, so that would be probably the original message -- part
           2  of the original message.  The current, in this message, where
           3  Jim Bell is sending a message, the portions of the email that
           4  have no carets would be the current portion of that email, would
           5  be him responding to someone else.
           6           THE COURT:  Ma'am, when you refer to carets, are you
           7  talking about the vegetable or jewelry?
           8           THE WITNESS:  They are just like little "greater than"
           9  symbols.
          10           THE COURT:  Not jewelry.
          11           THE WITNESS:  Right.  Right.  They look like the
          12  greater than.  All right, yeah.
          13           THE COURT:  Okay.
          14           MR. LONDON:  Your Honor, and I don't intend to belabor
          15  these exhibits, and I only have one more after this, but I would
          16  like to publish this one since it has been admitted.  It does
          17  have an example of carets, and the jury can see what we're
          18  talking about.
          19           THE COURT:  How long is it?
          20           MR. LONDON:  It's just a page, Your Honor.  In fact, it
          21  can go right up on the screen.
          22           THE COURT:  All right, put it up on the screen.  Then
          23  the witness can explain it.
          24           THE WITNESS:  Okay.  So you see from "My work" down,
          25  that two paragraphs there have no carets.  That would be a
           1  portion of the current email that Jim Bell was writing.  The
           2  portion above it has a single caret, so that would be the next
           3  most recent portion of that email.
           4      Then you have, farther down we have two and three carets.
           5  Those would have been -- get older as the number of carets
           6  increases, the oldest being the three carets, "We have reached
           7  consensus that LD50 is around 3 mg/kg," and so on.
           8  Q.  (By Mr. London)  Can you please turn to Exhibit 42.
           9  A.  42.  Okay.
          10  Q.  Can you tell the jury if you recognize Exhibit 42, and how
          11  and why, if you do?
          12  A.  Yes.  It's an email from Jim Bell to swils, dated January
          13  31, 1997.  And this is again printed out from the out box of his
          14  hard drive.  My initials and date are at the bottom.
          15  Q.  And does this exhibit discuss Assassination Politics?
          16  A.  Yes, it does.
          17           MR. LONDON:  I offer Exhibit 42.
          18           MR. LEEN:  Same objection, Your Honor.  This is dated
          19  January 31st, 1997, and precedes the prior prosecution.
          20           THE COURT:  It will be admitted.
          21      (Exhibit No. 42 was admitted.)
          22  Q.  (By Mr. London)  Would you please read the second
          23  paragraph.
          24  A.  "It's an essay," and this is with no carets, so this would
          25  be from Jim Bell.
           1      "It's an essay that I've been circulating on USEnet and
           2  various Internet lists and FIDOnet echoes for more than the last
           3  year.  While it wasn't originally intended to be used as an
           4  enforcement device for commonlaw verdicts, it would be
           5  relatively straightforward to fund rewards based on jury
           6  verdicts.  This would allow totally-anonymous enforcement,
           7  avoiding most clashes with the status-quo legal system."
           8  Q.  Please read the next paragraph.
           9  A.  "Keep in mind that in a smoothly-functioning commonlaw-court
          10  system, the vast majority of offenses will be dealt with purely
          11  with fines; very few people would actually get killed," on those
          12  people -- "and those people would be the ones" who was really
          13  seriously offenders -- excuse me -- "who were really serious
          14  offenders or repeat offenders, and didn't pay their fines, etc."
          15  Q.  Finally, would you please turn to Exhibit 45.
          16  A.  45?
          17  Q.  Yes.
          18  A.  Okay.
          19  Q.  Would you tell us what that is?
          20  A.  It is a diskette that was seized during the search warrant.
          21  It has a sticky note on it, "NAMES + INFO, IRS - CID, ASST.
          22  U.S.ATTYS.  FED.JUDGES," and "W.P.5.0 DOS."
          23  Q.  Where it says IRS-CID, what is CID?
          24  A.  Criminal Investigation Division.
          25  Q.  And F-E-D, would that, to you, be short for federal?
           1  A.  Uh-huh.  Yes.
           2           MR. LONDON:  I offer 45.
           3           MR. LEEN:  May I voir dire, Your Honor?
           4           THE COURT:  Go ahead.
           5           MR. LEEN:  What search was this recovered from?
           6  A.  This was from the search warrant in 1997.
           7           MR. LEEN:  Your Honor, I object on the grounds that
           8  this is the 1997 search.  Also, it's highly prejudicial and it's
           9  outside the scope of this particular charge and it inserts
          10  inflammatory material into the proceeding.
          11           THE COURT:  Overruled.  It will be admitted.  45 is
          12  admitted.
          13      (Exhibit No. 45 was admitted.)
          14  Q.  (By Mr. London)  Are you aware of the fact that the
          15  defendant pled guilty to obstruction charges in connection with
          16  some of this kind of material?
          17  A.  Yes, I am.
          18           MR. LONDON:  Your Honor, at this point we offer Exhibit
          19  51, which is a certified copy of the transcript of his plea
          20  colloquy with Judge Burgess in 1997.
          21           MR. LEEN:  Defense objects, Your Honor.  It's not
          22  relevant to these proceedings, his guilty plea, and what he
          23  agreed -- and what he pled guilty to.
          24           THE COURT:  I will take it up.  I will reserve on 45.
          25           MR. LEEN:  51, Your Honor.
           1           THE WITNESS:  51.
           2           THE COURT:  51.  I'm sorry.
           3           MR. LONDON:  Yes, it was 51.
           4           THE COURT:  Any further questions of this witness?
           5           MR. LONDON:  No, Your Honor.
           6           THE COURT:  Cross-examination?
           7           MR. LEEN:  No questions.
           8           THE COURT:  This witness may be excused.
           9      (Witness excused.)
          10           THE COURT:  Since we're close to 4:30, we might as well
          11  give the jury that extra five minutes.
          12      What time tomorrow?
          13           THE CLERK:  9:30.
          14           THE COURT:  9:30 tomorrow morning.
          15      Please do not discuss the case over the evening recess,
          16  among yourselves, or with anyone else.
          17      And a word of caution.  You are not going to find this on
          18  your screens at home.  So please don't try to recapitulate what
          19  you have heard here today.  You won't find it.
          20      Please be back in the jury room at 9:30.
          21      (Jury excused; 4:25 p.m.)
          22           THE COURT:  To the government:  Exhibit 51.
          23           MR. LONDON:  Yes.
          24           THE COURT:  What's the purpose?  This is the proceeding
          25  before Judge Burgess.
           1           MR. LONDON:  Yes, Your Honor.  It was the plea colloquy
           2  with Judge Burgess where Judge Burgess, in taking the
           3  defendant's guilty plea for obstruction charges in 1997, went
           4  through the conduct that was charged at the time and received an
           5  admission and acknowledgment specifically from the defendant
           6  acknowledging that Operation Locate IRS and the mercaptan
           7  attack, that all of this had been done for the purpose of
           8  harassing or intimidating or interfering with Internal Revenue
           9  officers.
          10      And, of course, our theory of this case is that his search
          11  for home address information and his showing up at people's
          12  houses was for that purpose, not as Mr. Leed said in his opening
          13  statement, for the purpose of showing that surveillance can be
          14  done both ways.  Mr. Bell has a long-standing history of
          15  deciding that he can intimidate federal agents or officials or
          16  government people by this kind of conduct.  Judge Burgess made
          17  him admit it as part of the plea colloquy there as an admission
          18  and statement and acknowledgment by him that he does it for that
          19  very purpose.  So I think it's relevant and exactly on point for
          20  the purpose of proving our theory of the case.
          21           THE COURT:  Mr. Leen.
          22           MR. LEEN:  Your Honor, the defense position is, is that
          23  this is really being used as 404(b) evidence of a prior crime,
          24  and the prior crime is -- like this particular prior crime, I
          25  submit that it's highly prejudicial because what the jury then
           1  will do is they will be convicting him again for what he
           2  admitted in the 1997 guilty plea.  If the government is allowed
           3  to --
           4           THE COURT:  What's your understanding of the
           5  requirements of 404(b)?
           6           MR. LEEN:  As to prior crime to show intent?  It has
           7  to --
           8           THE COURT:  Identification.
           9           MR. LEEN:  Well, intent -- identification, intent,
          10  common scheme or plan, but if it's being used to show intent, it
          11  has to be signature crime, like -- sort of like the Long
          12  Ranger's silver bullet or Zorro's Z.  It has to be like the same
          13  type of thing if it is going to be used for intent.
          14           THE COURT:  Well --
          15           MR. LEEN:  This doesn't meet that test.
          16           THE COURT:  Is there any suggestion that the defendant
          17  is not the person that's in 51?
          18           MR. LEEN:  No.  He's the person.
          19           THE COURT:  51, is it?
          20           MR. LEEN:  Yes, Your Honor.
          21           THE COURT:  Or 52?  51.  The same person?
          22           MR. LEEN:  He is the same person.
          23           THE COURT:  When's the time?
          24           MR. LEEN:  1997.  I can look at the date.
          25           THE COURT:  When's the time of the indictment?
           1           MR. LONDON:  He was charged in 1997.
           2           MR. LEEN:  It's dated July 18th, 1997.
           3           THE COURT:  Well, when is the -- this shows February
           4  1998.
           5           MR. LEEN:  No, the transcript is a transcript that took
           6  place on July 18th, 1997.  The plea agreement was entered into
           7  and signed --
           8           THE COURT:  Well --
           9           MR. LEEN:  -- that same July.
          10           THE COURT:  Mr. Leen, I have before me "Transcript of
          11  Sentencing."
          12           MR. LEEN:  Yes, Your Honor.
          13           THE COURT:  Before the Honorable Franklin D. Burgess,
          14  United States District Judge, and it has it stamped up here,
          15  from the clerk's office, of February -- Debbie, can you see it?
          16  What is that?
          17           THE CLERK:  February 9th.
          18           THE COURT:  February 9th, 1998.
          19           MR. LEEN:  Well, I have -- it says "Transcript of
          20  Sentencing," but what I'm reading is a guilty plea.  So it's
          21  misidentified, Your Honor, in the copies that are given to the
          22  defense here in this book.  We have Exhibit 51 --
          23           THE COURT:  Well, did or did not the defendant, Mr.
          24  Bell, say, in the sentencing before Judge Burgess, what the
          25  government is alleging?
           1           MR. LEEN:  He said in his guilty plea, he said that,
           2  yes, sir.
           3           MR. LONDON:  It actually was -- this was the change of
           4  plea hearing, and the court reporter inadvertently typed
           5  sentencing on the cover sheet.
           6           MR. LEEN:  Yes, he did say what the government has
           7  alleged.  At least that's --
           8           THE COURT:  Did he say that?
           9           MR. LEEN:  I wasn't there, but the court reporter --
          10  this is a certified transcript.  I have no reason to believe
          11  it's not correct.
          12           THE COURT:  What I'm trying to find out, you've offered
          13  51.  Is what you are saying now, that this defendant has
          14  admitted by his various statements before Judge Burgess?
          15           MR. LONDON:  Your Honor, what I'm saying is that in his
          16  plea hearing in front of Judge Burgess he acknowledged
          17  specifically that he engages in this kind of conduct for the
          18  purpose of intimidating or harassing IRS agents and officers.
          19           THE COURT:  Well, is that consistent with what you are
          20  saying in -- reflected in Exhibit 51?
          21           MR. LONDON:  Yes, it is.
          22           THE COURT:  Is what I'm asking.
          23           MR. LONDON:  It is, and --
          24           THE COURT:  Do you object to that or except to that or
          25  deny that?
           1           MR. LEEN:  We agree that that's what he said.  We
           2  object to the admission of the document.
           3           THE COURT:  51 will be admitted.  Do it in front of the
           4  jury first thing.
           5      Okay.
           6      Anything else to take up before sentencing?  Before
           7  sentencing -- before recess?
           8           MR. LEEN:  No, Your Honor.
           9           THE COURT:  Let me suggest something, too.  If anybody
          10  -- both parties -- anybody runs in inadvertently to a member of
          11  the jury, please do not even say good morning, goodbye, good
          12  evening, or anything else.  Don't say anything to them.
          13           MR. LONDON:  Yes, Your Honor.
          14           THE COURT:  Then we won't have any problem.
          15  Hopefully.
          16      Okay?
          17           MR. LEEN:  Yes, sir.
          18           THE COURT:  Avoid -- tell all your witnesses to avoid
          19  that jury at any cost.  Okay?
          20      See you tomorrow morning at 9:30.
          21      (Recessed at 4:33 p.m.)
                                    C E R T I F I C A T E
          23       I certify that the foregoing is a correct transcript from
              the record of proceedings in the above-entitled matter.
              ________________________________            October 15, 2001
          25          JULAINE V. RYEN                            Date

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