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 2 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
89
1 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
2 AT TACOMA
3
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 4, 2001
)
8 Defendant. )
)
9
10 VOLUME 2
TRANSCRIPT OF TRIAL
11 BEFORE THE HONORABLE JACK E. TANNER
SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
12
13 APPEARANCES:
14 For the Plaintiff: ROBB LONDON
Assistant United States Attorney
15 601 Union Street, Suite 5100
Seattle, Washington 98101
16
For the Defendant: ROBERT M. LEEN
17 Attorney At Law
Two Union Square
18 601 Union Street, Suite 4610
Seattle, Washington 98101-3903
19
20
21 Court Reporter: Julaine V. Ryen
Post Office Box 885
22 Tacoma, Washington 98401-0885
(253) 593-6591
23
24
Proceedings recorded by mechanical stenography, transcript
25 produced by Reporter on computer.
90
1 I N D E X
Page
2
VOLUME 2 89 - 283
3
MOTIONS:
4
Defendant's Motion In Limine Regarding Guns ...... 93
5 Denied ................................. 102
6 Defendant's Motion to Exclude Testimony Regarding
Guns by Mr. East ................................ 103
7 Denied ................................. 103
8 Motion to Quash Subpoenas of Ms. Maida and
Ms. Levins ....................................... 104
9 Granted ................................ 107
10 Defendant's Motion for Mistrial................... 111
Denied ................................. 111
11
Defendant's Motion for Mistrial ................. 140
12 Denied ................................. 142
13 Plaintiff's Motion to File Exhibits Under Seal ... 281
14 WITNESSES ON BEHALF OF PLAINTIFF:
15 ROBERT WILLIAM EAST
Direct ....................... 112
16 Cross ........................ 118
Redirect ..................... 123
17 Further Direct ............... 124
Further Cross ................. 125
18
CHRISTOPHER JOHN GROENER
19 Direct ....................... 126
Cross ........................ 134
20 Redirect ..................... 139
21 HILDA WONG MURAMOTO
Direct ....................... 143
22 Cross ........................ 149
23 JOHN YOUNG
Direct ....................... 150
24 Cross ........................ 157
Redirect ..................... 167
25
91
1 I N D E X
2 J. BRIAN GOOLD
Direct ....................... 169
3 Voir Dire .................... 184
Direct (Continuing) ........... 184
4 Cross ........................ 188
Redirect ..................... 192
5
JOHN MICHAEL COPP
6 Direct ....................... 193
Cross ........................ 199
7 Redirect ..................... 203
Recross ....................... 204
8
SCOTT DEFOREST MUELLER
9 Direct ....................... 206
Cross ........................ 216
10
PHILLIP SCOTT
11 Direct ....................... 219
Cross ........................ 222
12
BRIAN TIMOTHY KENNEY
13 Direct ....................... 241
Cross ........................ 244
14 Redirect ..................... 246
Recross ....................... 246
15 Redirect ..................... 247
Recross ....................... 249
16 Redirect ..................... 249
17 JOHN RABATIN
Direct ....................... 250
18
EXHIBITS Admitted
19
2 173
20 3 262
5 263
21 7 266
8 266
22 20 118
21 118
23 60 255
61 258
24 101 268
102 269
25 103 270
92
1 I N D E X
2 EXHIBITS Admitted
3 104 271
105 270
4 106 273
107 273
5 108 274
110 275
6 115 277
117 278
7 118 279
125 256
8 126 256
128 280
9 137 172
138 243
10 139 244
150 155
11 171 174
183 221
12 190 175
191 175
13 192 176
193 176
14 194 177
195 181
15 196 182
197 182
16 198 183
199 183
17 200 184
201 185
18 202 185
203 185
19 204 186
205 186
20 207 258
208 259
21 209 187
210 222
22 211 259
212 260
23 213 187
24
25
93
1 (Defendant present.)
2 MORNING SESSION
3 (Jury not present.)
4 THE CLERK: Be seated, please.
5 THE COURT: Good morning. Do we have something to take
6 up?
7 MR. LONDON: Your Honor, I believe there are a few
8 matters to take up. Mr. Leen has a matter, and I have a couple
9 of matters.
10 MR. LEEN: Your Honor, the government has indicated an
11 intention to use -- to introduce Government's Exhibit 276, which
12 is a photograph of three, it looks like, assault-style rifles.
13 I don't think they are illegal rifles, but they certainly look
14 scary. They were returned to the defendant prior to his 1997
15 conviction. They are -- at the time that he owned them and had
16 them in his possession, they were perfectly lawful. Subsequent
17 to 1997, they would be illegal, and there's no evidence that he
18 had possession of these weapons after 1997.
19 The court has allowed evidence of emailings and his 1997
20 conviction for the purpose of his intent, and also -- well, as
21 to the purpose of intent, then, under 404(b). However, to
22 introduce three of these types of guns, or any evidence of
23 weapons, I think, improperly will cause the jury to have an
24 adverse inference drawn from a constitutional right, and that is
25 the right to bear arms. He had a perfect right to have these
94
1 weapons prior to 1997. He had no right to have these weapons
2 after 1997. I don't see any relevance to the possession of
3 these three firearms prior to 1997. And that's what the
4 state -- the government is seeking to introduce.
5 So I ask that the court find that under 403, in addition to
6 the fact that it's not relevant to this charge, that the court
7 bar any offering of this evidence.
8 THE COURT: Government.
9 MR. LONDON: Your Honor, our view is that it's very
10 important for the jury to be able to hear that Mr. Bell at one
11 time was in possession, and, we admit, lawful possession, of
12 four weapons, a .44 magnum, two SKS Chinese semi-automatic
13 assault -- or excuse me -- two SKS Chinese battle rifles, one
14 with a bayonet, and a mini 14 semiautomatic assault weapon.
15 Mr. Leen in his opening statement made a real point in
16 talking to the jury about the fact that Mr. Bell never had any
17 guns or didn't have any guns. I believe that creates a
18 deliberate -- perhaps not deliberate, but a misimpression. The
19 fact that the defendant once had an assault rifle and weapons of
20 that kind is something that goes to an element we have to prove
21 in this case, which is that the victims in this case were
22 reasonably in fear of Mr. Bell. They knew him to be someone who
23 at one point was into guns, and we have the burden of proving
24 the element of fear, or a reasonable basis for their fear, and
25 his prior gun possession is directly relevant.
95
1 Mr. Leen: Your Honor, the fact that someone had a
2 firearm at sometime in the past is not a reason to suspect that
3 he still illegally is possessing firearms. They had no evidence
4 whatsoever that --
5 THE COURT: Mr. Leen, it seems to me if someone was in
6 fear, does it make a difference whether they're unlawful or
7 legal or anything else? Just the fact you had them.
8 MR. LEEN: Well --
9 THE COURT: What's the distinction?
10 MR. LEEN: Well, the distinction is there's a
11 constitutional right to possess these items. And so what you're
12 asking the jury to do --
13 THE COURT: There's no constitutional right to put me
14 in fear, is there?
15 MR. LEEN: Well, so that under that theory, however,
16 then, free speech which puts you in fear is reasonable, and
17 that's not reasonable. That's the thrust of our argument.
18 THE COURT: I don't understand that one.
19 MR. LEEN: Well, if he -- because he posted something
20 on the Internet or because he has weapons doesn't mean by that
21 he -- by exercising rights, it's proper for a law enforcement
22 officer to fear the man. And that's what the government has
23 been doing. They have spent most of yesterday talking about
24 things that Mr. Bell did between 1994 and 1996, prior to his
25 1997 conviction, which were all part of his 1997 conviction.
96
1 THE COURT: That isn't, under my understanding of what
2 the government must prove, and that is that the persons involved
3 were in fear.
4 Mr. Leen: Well, isn't this just propensity evidence,
5 Your Honor?
6 THE COURT: Why is it propensity?
7 Mr. Leen: Under 404. 404(a), it would be
8 impermissible propensity evidence.
9 THE COURT: I thought we were under 403.
10 MR. LEEN: Well, I think that that's the balancing test
11 the court has to do. But under 404(a), it's improper for the
12 government to introduce evidence for propensity to commit a
13 crime. And I think the analysis has to accept the fact that
14 someone who has been convicted of a felony offense, it's not
15 reasonable every time a question is the state of mind of some
16 alleged victim that the person committed a crime in the past and
17 then go into the details of the crime in the way in which the
18 government has done in this case.
19 THE COURT: As I understand it, it's not being offered
20 that he committed a crime or might not have in the past or he
21 lawfully had them, just the fact he had them.
22 Mr. Leen: Your Honor, this --
23 THE COURT: I don't see how --
24 MR. LEEN: Possession of these items were -- is over
25 four years prior to the present offense.
97
1 THE COURT: But the problem is, the way I understand
2 it, the government is saying that the people who are the subject
3 matter of the five charges, or four charges, knew he had
4 weapons.
5 MR. LEEN: This is impermissible character --
6 THE COURT: Does it make a difference whether I legally
7 have it or unlawfully have it if I can use it?
8 MR. LEEN: In this instance --
9 THE COURT: Isn't that what the charge is?
10 MR. LEEN: The government is asking the jury to draw an
11 adverse inference from the exercise of a constitutional right.
12 MR. LONDON: Your Honor, may I just respond?
13 MR. LEEN: It's not relevant at all to this charge.
14 MR. LONDON: It's relevant for two reasons. Mike
15 McNall and Jeff Gordon are going to get on that stand and I'm
16 going to ask them why they were afraid when they found out that
17 this individual was trying to find out where they lived. One of
18 the things they are going to say is, we knew at one time that he
19 was walking around with serious fire power, including a
20 semiautomatic assault weapon.
21 Moreover, the evidence is going to be that the government
22 was in possession of those four weapons after Mr. Bell's prior
23 conviction and we returned them. We arranged to return them to
24 someone that he designated. He designated that we return them
25 to a friend of his. That friend of his got those weapons, and
98
1 after that point we don't know where they went. Those
2 individuals, as far as they knew, Mr. Bell might have access to
3 them once they went to a friend of his.
4 MR. LEEN: And that's the missing link, Your Honor. If
5 there's evidence that he had them or that he contacted the
6 individual to get them, that's a different matter than the
7 situation here when in 1997 they returned the weapons.
8 THE COURT: Well, Mr. Leen, it's not unusual to have
9 more than one person in possession, if I understand the word
10 possession of a firearm.
11 MR. LEEN: Your Honor, under that theory, then, if he
12 was a prior convicted felon --
13 THE COURT: He had access to it.
14 MR. LEEN: If he had a weapon at any time in the past.
15 In fact, anybody could -- as long as he had a weapon in the
16 past, they would be allowed to bring that up.
17 THE COURT: We're not talking about anybody. We're
18 talking about the defendant.
19 MR. LEEN: No, I don't think you can localize it to
20 this defendant. I think this is a general rule here.
21 Respectfully.
22 THE COURT: What do you mean, general rule?
23 MR. LEEN: Well, I think that you have to analyze it in
24 terms of any defendant who had -- four years prior to the
25 instant offense had a weapon. It would not be reasonable for
99
1 anyone to assume that he was in illegal possession of a weapon
2 when there's no evidence, no evidence, that he had possession of
3 the weapon or attempted to gain possession of the weapon or
4 attempted to get any other firearm. And that's the problem.
5 THE COURT: Well, if I understand the government's
6 offer, the evidence would show that they gave them back to him.
7 MR. LEEN: They did not give them back to him.
8 THE COURT: Well, they gave them back to his designee.
9 MR. LEEN: Yes, sir.
10 MR. LONDON: I would be perfectly happy to limit the
11 testimony to simply the fact that he was at one time in
12 possession of weapons of that caliber and magnitude, because
13 that's really what the agents were afraid of.
14 THE COURT: Is that what they are going to say?
15 MR. LONDON: Yes, Your Honor.
16 THE COURT: What's the matter with that?
17 MR. LEEN: Your Honor, it's asking the jury to draw the
18 inference that he has firearms four years later and that he's
19 going to use them. There's no evidence at any time during this
20 that -- during -- subsequent to 1997 that he ever had a firearm
21 or that he was walking around with a firearm or that he was
22 attempting to procure a firearm.
23 THE COURT: As I understand the nature of these
24 charges, they have to show that the subject matter of, I think
25 it's -- what is it, count -- two to four counts?
100
1 MR. LONDON: All five counts, Your Honor.
2 THE COURT: All five counts, that they were put in
3 fear. There's got to be a reason why you're put in fear.
4 MR. LEEN: Well, this is not a lawful reason to be in
5 fear.
6 THE COURT: I beg your pardon?
7 MR. LEEN: It's not a lawful reason for a law --
8 THE COURT: What's a lawful reason for being in fear?
9 I don't understand that term. If I'm in fear, I'm in fear.
10 MR. LEEN: It's not an admissible reason, Your Honor.
11 That's as good as I --
12 THE COURT: Well, why not?
13 MR. LEEN: Because it's asking the jury to adversely
14 draw an inference based upon what at the time was the exercise
15 of a constitutional right, and there's no evidence that he ever
16 illegally possessed a firearm.
17 THE COURT: Well, I don't know of any constitutional
18 right to threaten either directly or indirectly anybody.
19 MR. LEEN: Well, he did not directly or indirectly
20 threaten anyone. What he did by -- he merely tried to locate
21 where they lived. They drew the inference that this constituted
22 a threat. He didn't say, I'm going to kill you, I'm going to
23 blow you away, I'm going to harm your family. He never said
24 anything like that. There's no evidence that he ever said
25 anything like that.
101
1 MR. LONDON: He has done it indirectly through
2 Assassination Politics and --
3 THE COURT: I understand that.
4 MR. LEEN: That was written prior to 1995, Your Honor.
5 And he had a constitutional right to post it.
6 MR. LONDON: Your Honor, it's still on the Internet
7 today. He has never retracted it. He has never once renounced
8 it. He has never once said, you know, something, I went too far
9 with that.
10 THE DEFENDANT: Are you asking me to do that, sir?
11 MR. LEEN: He doesn't have to do that, Your Honor.
12 MR. LONDON: I ask you politely to address the court
13 directly.
14 THE COURT: To the defendant:
15 THE DEFENDANT: Is he asking me --
16 THE COURT: To the defendant:
17 THE DEFENDANT: -- to withdraw what I wrote?
18 THE COURT: Do you want to be muzzled?
19 THE DEFENDANT: I want my --
20 THE COURT: Do you want to be muzzled?
21 THE DEFENDANT: No, sir, I do not want --
22 THE COURT: Well, then, please --
23 THE DEFENDANT: -- to be muzzled in this court.
24 THE COURT: -- do not say anything until asked to.
25 THE DEFENDANT: I take that as a threat, sir. I will
102
1 be silent.
2 THE COURT: You can take it any way you want to take
3 it. But you're not running this case. We are going to try this
4 case with you or without you. Now, what do you want?
5 THE DEFENDANT: It sounds like that was another threat,
6 sir. I'm remaining silent again.
7 THE COURT: How long will it take the marshals to
8 arrange the court downstairs?
9 DEPUTY MARSHAL: Within the hour I believe we could do
10 that, Your Honor.
11 THE COURT: Now, do you want to do that? Do you want
12 to be absent from this courtroom? And absent from this
13 courtroom means you are going to conform to the rules of the
14 court. And the rules of the court do not call for you to
15 suddenly shout out to anybody.
16 THE DEFENDANT: I apologize for that in response to Mr.
17 London's remark.
18 THE COURT: That's the end of it.
19 Mr. London, who is your next witness?
20 MR. LONDON: Your Honor, we do have witnesses but there
21 are a couple of matters still to take up.
22 THE COURT: And the answer to Mr. Leen's objection --
23 if I understand it, you're objecting to the pictures?
24 MR. LEEN: Yes, Your Honor. Or evidence of --
25 THE COURT: The witnesses will be allowed to testify
103
1 what caused them to be in fear.
2 MR. LONDON: The next witness, Your Honor, is the
3 acquaintance of Mr. Bell's who was his designee for the return
4 of the weapons, and he also was familiar with Mr. Bell's
5 handling of the weapons when Mr. Bell had those weapons
6 lawfully. I would like -- even though he's not one of the
7 people in fear, I would like to show him the photo of the
8 weapons and have him identify them and say he did know about the
9 weapons.
10 MR. LEEN: The same objection, Your Honor. If the
11 court has ruled that they can testify --
12 THE COURT: Is that in chain of custody of the photo?
13 MR. LONDON: No, Your Honor. We have to lay some
14 foundation for the fact that the agents knew that Mr. Bell had
15 these weapons. There are two ways we can do that. One is
16 through Mr. East, his friend who took the weapons into his
17 possession when Mr. Bell designated him to do it. The other is
18 we can have the agents present at the search warrant where those
19 weapons were seized testify about that. The seizure of the
20 weapons.
21 MR. LEEN: We object to either.
22 THE COURT: All right. Your motion to exclude is
23 denied.
24 MR. LEEN: May we have a limiting instruction, Your
25 Honor?
104
1 THE COURT: A what?
2 MR. LEEN: A limiting instruction.
3 THE COURT: No, let's go specifically.
4 MR. LEEN: I would ask that the court instruct the jury
5 that the receipt of the firearms into evidence or discussion of
6 them merely goes to the state of mind of the people who are
7 alleged to be victims of the counts in the indictment and you
8 should draw no adverse inference from the fact that Mr. Bell had
9 these weapons at a time when it was perfectly lawful for him to
10 have them.
11 MR. LONDON: I don't have any objection to that.
12 THE COURT: Will you put the limiting instruction, so
13 we have no problem with this, put that limiting instruction in
14 writing.
15 MR. LEEN: Yes, sir.
16 Thank you.
17 MR. LONDON: Your Honor, the other matter I have to
18 take up --
19 THE COURT: Just write it out.
20 MR. LEEN: Yes, sir.
21 THE COURT: Yes?
22 MR. LONDON: There are still two subpoenas that Mr.
23 Bell has asked be served upon government individuals. One is
24 Joanne Maida, who is in the U.S. Attorney's office at present.
25 The other is Annmarie Levins, who was once in the U.S.
105
1 Attorney's office and is no longer. I would ask for a proffer
2 of the relevance of the testimony of those individuals. I don't
3 believe that their testimony is relevant and necessary. Both
4 are anxious to learn whether they need to appear here or not.
5 THE COURT: Mr. Leen.
6 MR. LEEN: I will submit -- Your Honor, there is no
7 requirement in the rules that in-district subpoenas be submitted
8 and issued on a condition of prior showing of materiality. If
9 -- the court has required that I do this as to other witnesses,
10 so we will, if the court is going to adhere to its prior
11 rulings, we will do that for these witnesses also.
12 THE COURT: Since the motion is now before me, I'm
13 asking you to make a showing now, oral, why these two witnesses
14 should not be released. Now.
15 MR. LEEN: All right. Yes, sir.
16 Ms. Maida was subpoenaed because she was the prosecutor of
17 the case of United States versus Ryan Lund. Mr. Bell's belief
18 is that if I question Ms. Maida, there will be evidence of the
19 fact that there was an agreement made between Mr. Lund and the
20 government that in exchange for him committing illegal acts
21 against Mr. Bell that he would -- he would -- he would
22 receive -- Mr. Lund would receive consideration in his
23 sentencing, and he in fact received consideration in his
24 sentencing from the government.
25 Mr. Bell also would indicate that he would like to
106
1 conference with me so that we could discuss this further.
2 THE COURT: The two -- who were the two that were --
3 MR. LONDON: Joanne Maida, who is an assistant U.S.
4 attorney at present, and Annmarie Levins, who was once an
5 assistant U. S. Attorney, who is no longer with the office.
6 THE COURT: Make an offer of proof as to that person,
7 Levins.
8 MR. LEEN: Ms. Levins was the prosecutor for Mr. Bell
9 in his 1997 prosecution, and she is aware also of this illegal
10 arrangement with Ryan Lund and the government.
11 MR. LONDON: Your Honor, my response to this is --
12 THE COURT: If I understand the situation, Mr. Lund was
13 also incarcerated at the same place that Mr. Bell was?
14 MR. LEEN: They were. Not now. This was back in --
15 prior to 1997.
16 THE COURT: Whenever it was.
17 MR. LEEN: Yes, sir, they were. At the Federal
18 Detention Center.
19 THE COURT: Was Mr. Lund ever at any other instance
20 incarcerated with Mr. Bell?
21 MR. LEEN: No.
22 THE COURT: Other than this one time?
23 MR. LEEN: No.
24 THE COURT: It sounds to me just like two people
25 incarcerated got in a fight and Mr. Bell lost it. These two
107
1 witnesses --
2 MR. LEEN: Mr. --
3 THE COURT: Pardon?
4 MR. LEEN: Mr. Bell would like me to add that he would
5 like to have a further discussion with me on this point. And
6 he's -- he is insisting that we have a conference, Your Honor.
7 THE COURT: Those two persons are released.
8 (Defendant pounds on table once very loudly.)
9 THE COURT: Are we ready for the witnesses?
10 MR. LEEN: I'm just finishing the limiting instruction,
11 Your Honor.
12 THE CLERK: Mr. Lund, I think you guys wanted to take
13 up Exhibit 51. That's the transcript.
14 MR. LONDON: Yes. Your Honor, at the close of business
15 yesterday you indicated that you would be admitting Exhibit 51
16 and that I should offer it in the presence of the jury this
17 morning.
18 THE COURT: Yes.
19 MR. LONDON: In the meantime, Mr. Leen noted that there
20 is some material in there that should probably be redacted. So
21 he and I are going to do that during a recess, and then I will
22 offer that exhibit after the redactions have occurred.
23 THE COURT: Mr. Bell.
24 THE DEFENDANT: Yes.
25 THE COURT: I see that you're having problems
108
1 controlling your temper.
2 THE DEFENDANT: No, actually I'm --
3 THE COURT: All you're going to do is get in trouble.
4 And you will lose this one.
5 THE DEFENDANT: Are you asking for an answer or not?
6 THE COURT: I'm not asking for an answer. I'm telling
7 you.
8 Now, if you want those two United States marshals to stand
9 right behind you, say so.
10 THE DEFENDANT: I'm wondering --
11 THE COURT: Because I'm now starting to begin to not to
12 trust you to do anything.
13 THE DEFENDANT: Can I respond?
14 THE COURT: No.
15 The very next time you do anything that appears to this
16 court as a threat to your attorney or anyone else in this
17 courtroom, including yourself, I'm going to have you excluded.
18 Do you understand that?
19 Do you understand what I said?
20 THE DEFENDANT: I guess you asked a question. A
21 threat --
22 THE COURT: Did you understand what I said?
23 THE DEFENDANT: I'm not sure what you mean by the word
24 threat. If you could please be more specific.
25 THE COURT: To the marshals: Will you prepare the room
109
1 downstairs?
2 DEPUTY MARSHAL: Yes, Your Honor.
3 THE COURT: See that it is prepared.
4 DEPUTY MARSHAL: Yes, Your Honor.
5 MR. LEEN: May I approach the court, or I will read to
6 the court what I have written and then approach the court.
7 THE COURT: Yes.
8 MR. LEEN: The limiting instruction that I have shown
9 to the prosecutor, which Mr. London says is acceptable.
10 You are about to, or you have -- depending on when the court
11 gives the instruction -- heard evidence that prior to 1997 the
12 defendant was in lawful possession of several firearms. The
13 court instructs you that this evidence is being admitted for a
14 limited purpose; that is, as evidence as to the reasonableness
15 of the state of mind of the alleged victims. You should not
16 consider this evidence for any other purpose.
17 I don't know if you can read my writing, but I have done my
18 best.
19 THE COURT: To the defendant, Mr. Bell.
20 THE DEFENDANT: Excuse me. I'm sorry, Your Honor.
21 THE COURT: Move over to that other chair.
22 THE DEFENDANT: Excuse me?
23 THE COURT: Move to the chair next to the end of the
24 table.
25 THE DEFENDANT: Next to the end of the table.
110
1 THE COURT: That one.
2 THE DEFENDANT: Okay.
3 THE COURT: No. I want you out of arm's reach of your
4 attorney.
5 THE DEFENDANT: Why is that, sir, please?
6 THE COURT: I just told you.
7 THE DEFENDANT: It's hard for me to hear him.
8 THE COURT: The marshals can station themselves where
9 they wish. No more flailing your arms.
10 THE DEFENDANT: What?
11 THE COURT: I said no more flailing of your arms for
12 any reason, or pounding the table.
13 Do you understand what I just said?
14 Yes, Mr. Leen?
15 Mr. Leen: I was wondering if the court would consider
16 instead of having Mr. Bell sit there, that he be cuffed by his
17 ankles to the chair next to me so that the jury wouldn't see it
18 and everything would appear as it did yesterday?
19 THE COURT: No. If you wish to discuss it, you can
20 move over.
21 MR. LEEN: All right. Yes, sir.
22 THE COURT: Ready for the jury?
23 MR. LEEN: I would like to file a handwritten motion
24 that the defendant has prepared.
25 You will recall that yesterday I mentioned that Mr. Bell had
111
1 heard the court say that after the prosecution gives its opening
2 statement, the defendant will be allowed to give an opening
3 statement. The defendant has asked that we move for a mistrial
4 because he was not personally allowed to give an opening
5 statement, and I --
6 THE COURT: That will be denied.
7 MR. LEEN: -- reduced it to writing.
8 THE COURT: File it. It will be denied.
9 MR. LEEN: Thank you.
10 THE COURT: Are we ready for the jury now?
11 MR. LEEN: Yes.
12 MR. LONDON: I have just one question before we bring
13 in the jury, Your Honor, and that is what is the status or the
14 effect of the defendant's notice of appeal interlocutory?
15 THE COURT: I have received nothing from the Ninth
16 Circuit.
17 MR. LEEN: We received a notice that they had received
18 the pleading and they said they -- the notice and they have set
19 a briefing schedule.
20 THE COURT: I have had no notice to stop the
21 proceedings, which will continue.
22 Ready for the jury?
23 MR. LONDON: Yes, Your Honor.
24 THE COURT: Call the jury.
25 (Jury present; 10:10 a.m.)
112
1 THE COURT: Good morning.
2 (Jury responds "Good morning.")
3 THE COURT: Let the record reflect all members of the
4 jury are present.
5 Next witness.
6 MR. LONDON: Call Robert East.
7 ROBERT WILLIAM EAST, PLAINTIFF'S WITNESS, SWORN
8 THE CLERK: Please state your full name and spell your
9 last name.
10 THE WITNESS: Robert William East. That's E-a-s-t.
11 DIRECT EXAMINATION
12 BY MR. LONDON:
13 Q. Mr. East, good morning. I want to begin by asking you if
14 you know the defendant in this case, James Dalton Bell?
15 A. Yes, I do.
16 Q. How would you characterize your relationship with him?
17 A. I've been friends with him for about 15 years.
18 MR. LONDON: Your Honor, I believe at this point it
19 would be appropriate to give the limiting instruction.
20 THE COURT: Well, why don't you go through it, and then
21 I will give the limiting instruction.
22 MR. LONDON: All right.
23 Q. (By Mr. London) Mr. East, are you aware of any possession
24 or ownership of firearms by the defendant?
25 MR. LEEN: Objection, Your Honor.
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1 THE COURT: Overruled.
2 MR. LEEN: May I -- rather than interrupt the
3 testimony, may I have a continuing objection to this line of
4 testimony, Your Honor?
5 THE COURT: Overruled. Continue.
6 A. Yes. In November, I believe it was, I picked up some
7 weapons that were in the custody of the Internal Revenue Service
8 from the Federal Building over in Portland, Oregon. There were
9 two SKS 762 by 39 millimeter rifles, a Smith and Wesson, I
10 believe it was a model 629 .44 magnum handgun, and a Rugar mini
11 14, 223 caliber rifle.
12 Q. (By Mr. London) Why did you pick these items up from the
13 government?
14 A. I was designated by Mr. Bell to pick them up.
15 Q. On his behalf?
16 A. That's correct.
17 Q. All right. On your screen, I would like you to see what
18 should now be published as Government's Exhibit 276. Do you
19 have that in front of you?
20 A. Yes, I do.
21 Q. All right. Can you identify that or tell us what that is?
22 A. Yes. Those look like the weapons that I picked up.
23 Q. Okay. And moving left to right, can you say which weapons
24 are which?
25 A. Okay. Well, there's, on the left, there's an SKS rifle.
114
1 The middle rifle is an SKS rifle with a bayonet on it. The one
2 on the right is a Rugar mini 14 ranch rifle. And then the Smith
3 and Wesson handgun is down at the bottom.
4 Q. Now, have you ever seen Mr. Bell in possession of any of
5 these weapons prior to the time that he went to prison?
6 A. Just the ranch rifle and one of the SKS's. I think it was
7 the one without the bayonet.
8 MR. LEEN: Two questions. I can't see the monitor
9 facing the jury. Is the monitor on?
10 I object, Your Honor. I thought that the court had said
11 that the picture could not be shown to the jury.
12 THE COURT: It may be shown.
13 MR. LEEN: I will just adopt the motion -- the
14 arguments I made prior.
15 THE COURT: All right.
16 MR. LEEN: I would ask the limiting instruction be
17 given.
18 THE COURT: It will be shown to the jury. The limiting
19 instruction will be given at the proper time.
20 MR. LEEN: May I -- I have a motion to make outside the
21 jury's presence. May I reserve it until the next break?
22 THE COURT: Any further direct examination of this
23 witness?
24 MR. LONDON: Yes, but not on the gun. The guns.
25 THE COURT: Continue.
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1 You will be heard.
2 MR. LEEN: Okay. I will wait until the court allows.
3 Q. (By Mr. London) Mr. East, there are some exhibit notebooks
4 there on the table, and on the spines you will see there are
5 some exhibits numbers indicating which exhibits are in which
6 books. If you could open the binder that would include Exhibits
7 20 and 21. I would like you to turn to those. Look first, if
8 you would, at Exhibit 20 and tell us what those are.
9 A. No, there's just a -- it looks like an email.
10 Q. I'm sorry, 21 first.
11 A. Oh, I'm sorry. 21. Okay.
12 Okay. This -- yeah, this is a set of lock picks that belong
13 to me.
14 MR. LEEN: Objection, Your Honor. Relevance. 403.
15 THE COURT: Overruled.
16 Q. (By Mr. London) Can you tell us how you got ahold of these
17 lock picks?
18 A. I purchased them.
19 Q. And did you ever share them with Mr. Bell?
20 A. Actually, I gave him a tension wrench from this set and, I
21 believe it was, one lock pick.
22 Q. And did he ever tell you whether or not he had tried them
23 out or was using them?
24 A. Yes. In fact, he -- he and I both opened my front door --
25 MR. LEEN: Objection, Your Honor, as to -- I would like
116
1 to have a time that this was done so I could ask.
2 MR. LONDON: That's a fair enough question.
3 Q. (Mr. London) When was this that you shared them with Mr.
4 Bell?
5 A. Well, let's see. To give an exact date, I really couldn't
6 give you an exact date. It was on a visit that he made to my
7 house prior to one of my trips to sea and just after I bought
8 these, but I couldn't give you a date exactly when I bought
9 them.
10 Q. Okay. Let's do it this way. Why don't you look at the
11 other exhibit I asked you about, which is Exhibit 20.
12 A. Okay.
13 Q. Email. Do you recognize that?
14 A. Yes.
15 Q. Okay. What is that? Can you tell the jury what that email
16 is?
17 A. This says it's an email that he sent to me, it looks like,
18 when I was working on the Sealand Reliance.
19 Q. Okay. And what is the date of that email?
20 A. The date of that email is the 24th of June 1996.
21 Q. All right. So does it stand to reason then that you
22 probably shared the lock picks with him prior to that, given the
23 subject matter?
24 A. Yes, that would have to have been before that, yeah.
25 MR. LONDON: All right. I offer Exhibit 20, and I
117
1 offer 21.
2 MR. LEEN: I object to both. 20 for the reasons
3 previously stated regarding other emails. This is prior to the
4 1997 conviction. And the -- 21, the picture of the lock picks,
5 because -- it's under 403.
6 THE COURT: Both motions as to 20 and 21 are denied.
7 20 and 21 are admitted.
8 (Exhibits Nos. 20 and 21 were admitted.)
9 Q. (By Mr. London) Mr. East, if you would just look at the
10 email and just read the first full paragraph of that.
11 A. It says, "I tried the lock picks on my side door; got
12 through them in a couple of minutes. The lock was a little
13 'gummier' than yours, but that makes sense because it's at
14 least eight years old and probably much older. Your lock is
15 only a couple of years old, as I recall. (I haven't tried my
16 front door, yet.)"
17 Q. Okay. Mr. East, then you continued to have some kind of
18 correspondence with Mr. Bell even after he went to federal
19 prison on his federal conviction in this district, correct?
20 A. That is correct.
21 Q. What was the nature of that correspondence?
22 A. Oh, we -- you know, we exchanged letters periodically.
23 Q. Did he ever ask you to track down names and addresses of
24 people for him on his behalf from prison?
25 A. Yes, he did on a couple of occasions, and I just took the
118
1 letters and wadded them up and threw them in the trash can.
2 Q. Did he tell you what the purpose was of his request that you
3 track down home addresses for people?
4 A. Well, I think he said at the time that he suspected these
5 people of being workers for the government or somebody that was
6 spying on him or something. I'm not really sure exactly.
7 MR. LONDON: Thank you. Nothing further.
8 THE COURT: Cross-examination.
9 MR. LONDON: Thank you.
10 CROSS-EXAMINATION
11 BY MR. LEEN:
12 Q. Mr. East, you have indicated that you have been a friend of
13 Mr. Bell for approximately 15 years.
14 A. That's approximately correct, yes, sir.
15 Q. So going back to 1985, 1986?
16 A. Around that time. '84, '85, '86. I'm not really sure
17 exactly.
18 Q. And you indicated you picked up the weapons that were shown
19 on the monitor.
20 A. That's correct.
21 Q. In November. November of what year?
22 A. Last year.
23 Q. November of 2000?
24 A. Yes.
25 Q. And the government released those to you?
119
1 A. They did.
2 Q. How did you become aware of that fact?
3 A. Mr. Bell instructed me to go over and pick them up.
4 Q. All right. And where did you go?
5 A. I went over to the federal building in downtown Portland.
6 Q. Did Mr. Bell tell you how he knew that you could get them?
7 A. He gave me a, a paper, I think it was like a fax, that had
8 something to do with the guns, and said go to this address and
9 get them. And he -- and also, I was supposed to -- well, I had
10 to call Jeff Gordon at the IRS to make arrangements to pick them
11 up.
12 Q. And do you know who Jeff Gordon is?
13 A. Yes. Jeff Gordon is the gentleman sitting at the
14 prosecutor's table right there.
15 Q. That gentleman right there?
16 A. Yes, sir.
17 Q. And did you meet with him?
18 A. Yes, sir, I did. I met with Jeff Gordon and his partner,
19 whose name I don't know, and then they had me sign a paper
20 stating that I wouldn't give the weapons to Mr. Bell, you know,
21 to his person, and as per some --
22 Q. Regulation?
23 A. Right. Right. Title 17 or title something, anyway. And so
24 then I signed that, and then Mr. Gordon and his partner assisted
25 me with taking the weapons down, out the front door, and across
120
1 the street where I had my car parked. And that was down at
2 Sixth and Jefferson in Portland, I believe, is where the federal
3 building is.
4 Q. And so they gave them to you?
5 A. Yes, they did.
6 Q. What did you do with the weapons?
7 A. Well, I took them to my house, and then I -- since I'm in
8 and out of the area, I took them to some friends so that they
9 wouldn't be in my house so somebody could take off with them.
10 Q. Do you have weapons in your house?
11 A. At the present time, I have exactly one.
12 MR. LONDON: Your Honor, I object. It's a relevancy
13 objection. Where is this leading to?
14 THE COURT: Sustain the objection.
15 Q. (By Mr. Leen) Who did you give the weapons that Mr. Bell --
16 Mr. Bell had asked you to pick up some weapons, and they were
17 given to you by the IRS agent Jeff Gordon.
18 A. That's correct.
19 Q. And then you said you gave them to someone else.
20 A. Well, I gave -- had given them to some other people first.
21 MR. LONDON: Same objection, Your Honor. I just don't
22 see where it's going.
23 THE COURT: Same ruling. Sustained.
24 MR. LEEN: May I make a proffer, Your Honor?
25 THE COURT: No. Later.
121
1 Q. (By Mr. Leen) Did you ever give the weapons to Mr. Bell?
2 A. No.
3 Q. Have you ever seen -- do you have any knowledge of Mr. Bell
4 ever obtaining possession of the weapons after you got them from
5 the IRS?
6 A. No way.
7 Q. Now, you indicated that you had purchased prior, sometime in
8 1996, a set of lock picks.
9 A. That's correct.
10 Q. And where did you get those?
11 A. I got them from a place down in -- someplace down in
12 Oregon. I think it was down in Corvallis, Oregon. They
13 advertise in a magazine.
14 Q. And why did you buy them?
15 A. Oh, I wanted a set. I wanted to try them out, see, you
16 know, how hard it was to go through my front door. And I also
17 wanted to see if it was possible to open the doors of my car. I
18 have locked myself out of it several times, and -- well, at
19 least the car I had at that time. So that's the reason I bought
20 them.
21 Q. How did Mr. Bell find out that you had this set of lock
22 picks?
23 A. Well, I told him.
24 Q. Why did you tell him?
25 A. I thought he would be interested.
122
1 Q. And why was that?
2 A. We're both curious people.
3 Q. Other than the email that Mr. Bell sent you, do you have any
4 evidence or knowledge that he has ever used them?
5 A. Well, yeah, I saw him open my front door with them, you
6 know. Under, you know, my supervision.
7 Q. Did he return the lock pick to you that you had lent him?
8 A. I don't remember him ever returning it, no. He had a lock
9 pick and the tension wrench because you have to have both in
10 order to, you know, in order to make them work.
11 Q. So you never had the tension wrench, so you could never use
12 your set again, is that what you are trying to say?
13 A. No, no. There were two tension wrenches that came in the
14 set, and there -- well, I don't remember how many picks there
15 are, but there are quite a number of picks in there.
16 Q. And this was back in 1996?
17 A. Yes.
18 Q. Have you had any discussion with Mr. Bell about those since
19 then?
20 A. Not really, no.
21 Q. How about after he was released -- how about after his
22 conviction in 1997?
23 A. No, uh-uh. We never talked about it.
24 Q. Now, you say that Mr. Bell had talked to you or written
25 letters to you while he was incarcerated about people spying on
123
1 him.
2 A. Yes. He -- he wrote me a letter about his -- it was his
3 next-door neighbor, I think, to the east.
4 Q. And did he identify that person?
5 A. He gave me some name. I don't remember what it was.
6 Q. Could it have been Saban?
7 A. Yeah, that sounds familiar.
8 Q. And what did he tell you about that individual, do you know?
9 A. Well, he had quite a litany on it. Something about there
10 were a number of people that he was investigating, I think, by
11 that name, and some property at various places. You know, it's
12 kind of fuzzy because I wasn't really interested and so I
13 didn't -- you know, I just really don't remember a whole lot
14 about it.
15 Q. Do you --
16 A. I'm sorry, it was something that just didn't interest me,
17 so.
18 MR. LEEN: One second, Your Honor, if I might?
19 No further questions. Thank you, Your Honor.
20 THE COURT: Redirect.
21 REDIRECT EXAMINATION
22 BY MR. LONDON:
23 Q. Mr. East, did Mr. Bell ever discuss making the chemical
24 nerve agent Sarin with you?
25 A. Yes.
124
1 MR. LEEN: Objection, Your Honor. Outside the scope of
2 cross.
3 THE COURT: Do you want to recall him?
4 MR. LONDON: I would like to recall him.
5 THE COURT: All right.
6 MR. LEEN: Objection. 403 evidence, Your Honor.
7 THE COURT: The witness is recalled.
8 FURTHER DIRECT EXAMINATION
9 BY MR. LONDON:
10 Q. What was the nature of your discussion with Mr. Bell about
11 his making of the chemical nerve agent Sarin?
12 A. Oh, we discussed it a couple of times, and at one point I
13 asked him to show me the precursors to it, and he said that,
14 well, he had misplaced them, so.
15 Q. What do you mean by precursors?
16 A. Well, the chemicals that are required to manufacture it
17 are two. One of them is methylphosphonyl difloride, and the
18 other one is isopropyl alcohol. And he said that he didn't know
19 where the methylphosphonyl difloride was. So I just presumed
20 that it was BS.
21 Q. That what was BS?
22 A. Well, that he had that precursor chemical.
23 Q. Did you in fact once go to the library to look up
24 information on Sarin with him?
25 A. Oh, yeah, we went over to the Reed College library and
125
1 looked up a whole bunch of stuff on that and all the other
2 chemicals of similar nature.
3 Q. Was this before or after the attack on the Tokyo subway
4 system?
5 MR. LEEN: Objection, Your Honor. I have -- I move to
6 strike, and I also have another motion to make outside the
7 jury's presence in regard to --
8 THE COURT: On the question of the Tokyo subway, it
9 will be granted.
10 MR. LEEN: May I ask that the jury be instructed to
11 disregard that?
12 THE COURT: The jury will disregard the last question
13 of the prosecutor.
14 MR. LONDON: I withdraw that.
15 Thank you, Your Honor. No further questions.
16 THE COURT: Any cross-examination on the recall?
17 MR. LEEN: Yes, Your Honor.
18 FURTHER CROSS-EXAMINATION
19 BY MR. LEEN:
20 Q. Mr. East, when was this discussion regarding Sarin? If you
21 don't remember a month, maybe a year.
22 A. Oh, it's -- well, let's see. It was -- gosh, it's been ages
23 ago. I mean, it was like in the early '90s, I would say. '94,
24 '95, '96, maybe. I'm not sure. We've had a number of
25 discussions in that area, but it's been -- you know, it was one
126
1 of those curiosity things again.
2 MR. LEEN: No further questions. Thank you.
3 THE COURT: All right. The witness may be excused?
4 MR. LEEN: No objection by the defendant.
5 THE COURT: Step down, sir.
6 THE WITNESS: Thank you.
7 (Witness excused.)
8 THE COURT: Members of the jury: You have heard
9 evidence that prior to 1997 the defendant was in lawful
10 possession of several firearms. The court instructs you that
11 this evidence is being admitted for a limited purpose; that is,
12 as evidence as to the reasonableness of the state of mind of the
13 alleged victims. You should not consider this evidence for any
14 other purpose.
15 Next witness.
16 MR. LONDON: Chris Groener.
17 THE COURT: All right.
18 CHRISTOPHER JOHN GROENER, PLAINTIFF'S WITNESS, SWORN
19 THE CLERK: Please state your full name and spell your
20 last name.
21 THE WITNESS: Christopher John Groener.
22 G-r-o-e-n-e-r.
23 DIRECT EXAMINATION
24 BY MR. LONDON:
25 Q. Mr. Groener, good morning. Can you begin, please, by
127
1 telling us where you live?
2 A. I live at 14135 South Clackamas River Drive in Oregon City,
3 Oregon.
4 Q. And do you know that residence to be the former residence of
5 Mike McNall, ATF agent?
6 A. I do.
7 Q. All right. Do you actually know Mike McNall personally?
8 A. I do.
9 Q. How do you know him?
10 A. I met him through a former girlfriend of mine.
11 Q. All right. Now, in October last, specifically October 23rd,
12 2000, around 5:30 in the evening, did you have an opportunity to
13 come into any kind of contact with anybody you see here in the
14 courtroom today?
15 A. I did.
16 Q. With whom?
17 A. The gentleman sitting in the blue shirt.
18 Q. All right.
19 A. At the table.
20 MR. LONDON: Let the record reflect the identification
21 is of the defendant.
22 Q. (Mr. London) Will you please tell the jury how you first
23 came into contact with the defendant on October 23rd at 5:30?
24 A. I had come home from work at approximately 5:30 in the
25 evening, was talking on my cell phone, pulled into my driveway,
128
1 and looked up, and Mr. Bell was coming from between the --
2 beyond my house, between the shed and the deck, actually, and I
3 asked him if I could help him at that point.
4 Q. Did you say you was coming -- excuse me. Did you say you
5 were coming home from work?
6 A. Yes.
7 Q. And where did you park your car?
8 A. In my driveway, so to speak. It's just a small gravel kind
9 of area in front of my house.
10 Q. All right. And do you have the image in front of you that
11 is on the monitor here that the jury can see?
12 A. I do.
13 Q. All right. Is this image an accurate aerial depiction, as
14 far as you can tell, of the property where you currently live?
15 A. Yes.
16 Q. And how many residences are on the property?
17 A. Two.
18 Q. Is one of them yours?
19 A. Yes.
20 Q. Which one?
21 A. The one to the left on the screen.
22 Q. All right. And to whom does the other residence belong? Or
23 who occupies the other residence?
24 A. The Andrews.
25 Q. Okay. When you say that the -- all right. This is another
129
1 image. I want you to look at this one, please, and tell us what
2 this appears to be.
3 A. It is our farm with both residences to the left of the
4 screen there.
5 Q. All right. Can you tell the jury how far from the road
6 those two residents -- residences, excuse me -- the homes are?
7 A. Approximately 100 yards, I would say.
8 Q. So the property line is out by the road, is that correct?
9 A. Say again, please?
10 Q. Is the property line out by the road? Does it begin by the
11 road?
12 A. Oh, yes.
13 Q. Using this pointer, is this the driveway here, as I'm
14 tracking it here?
15 A. It is.
16 Q. All right. So is it your testimony that you came home at
17 5:30 and that you parked here?
18 A. Actually, that's the Andrews driveway. Continue on. Right
19 there.
20 Q. Okay.
21 A. Where the arrow is.
22 Q. Okay.
23 A. Right there.
24 Q. Where was the defendant? When you --
25 A. He was.
130
1 Q. When you first got out of the car, where did you see him
2 first?
3 A. He was, if you can see the second house sort of set back,
4 and then set back a little further is a very small shed. He was
5 between the shed and the house.
6 Q. All right. So he came around between the shed and the
7 house. And did you speak with him?
8 A. I did. I --
9 Q. What did you say?
10 A. I asked if I could help him.
11 Q. When you came in down the driveway yourself, did you notice
12 his car?
13 A. I did.
14 Q. What did you think of that?
15 MR. LEEN: Objection.
16 Q. (By Mr. London) Did you recognize the car?
17 THE COURT: Pardon?
18 MR. LEEN: I objected, Your Honor.
19 THE COURT: He may answer. Overruled.
20 Q. (By Mr. London) Did you recognize the car?
21 A. I did not.
22 Q. All right. Did you recognize the defendant when you saw him
23 come around the side of your house?
24 A. I did not.
25 Q. You had never seen him before?
131
1 A. No.
2 Q. What did you say to him?
3 A. I said, "Can I help you?"
4 Q. What did he say?
5 A. He asked if this was the residence of Mike McNall.
6 Q. What did you say?
7 A. I said, "No, it's not."
8 Q. What did he answer?
9 A. He inquired as to how long he had been -- had moved out of
10 the residence.
11 Q. And what did you say?
12 A. I said, "He hasn't lived here for some time."
13 Q. And what did he answer?
14 A. He asked -- continued to question, asked if I knew where he
15 currently lived.
16 Q. Where Mike McNall currently lived?
17 A. Uh-huh.
18 Q. Do you happen -- did you happen to know at that time where
19 Mike McNall currently lived?
20 A. I did.
21 Q. Did you tell the defendant?
22 A. I did not.
23 Q. Did you ask him why he wanted to know?
24 A. I did.
25 Q. What did he say?
132
1 A. After some hesitation, and it seemed as if some agitation,
2 he said he was an acquaintance of Mr. McNall.
3 Q. You weren't here, but Mr. Leen in the opening statement told
4 the jury --
5 MR. LEEN: Objection, Your Honor. Improper question.
6 Just the form is improper.
7 Q. (By Mr. London) How would you characterize the defendant's
8 demeanor or mood when he was questioning you, when you were
9 asking him questions about why he wanted to know this
10 information?
11 A. He seemed to be rather agitated that I was not forthcoming
12 with, with the questions that he was asking, and somewhat
13 flustered that I was responding and inquiring as to who he was
14 and what he was doing there.
15 Q. Did he ask you who lived in the other residence, or --
16 A. He actually just stated, "Is this the Andrews residence
17 there?" and pointed -- or actually, he said, "I see from the
18 mailbox that this is the Andrews residence," and pointed at the
19 second home. And I said, "Yes, it is."
20 Q. And you're familiar with that mailbox, is that correct?
21 A. Yes, sir.
22 Q. Is the name Andrews on the mailbox?
23 A. No, sir.
24 Q. In fact, didn't you double check after he had left to go
25 make sure the name Andrews is not on the mailbox?
133
1 A. Yes, sir.
2 Q. Were the Andrewses home at the time, as far as you knew?
3 A. They were not.
4 Q. Was that pretty much the sum and substance of your
5 conversation?
6 A. Largely, yes.
7 Q. What did he do after the conversation broke up?
8 A. Well, I -- before the conversation broke up, I said, I asked
9 him if I could get his name and phone number and possibly pass a
10 message along to Mr. McNall. He hesitated, and then finally did
11 give me the phone number, and I wrote that down on a piece of
12 paper. He then went to his car and sat down and began writing
13 on a piece of paper, and as he walked by my car, he made sure he
14 noted -- it looked as if he noted my license plate number. And
15 in my estimation, that was what he was writing down.
16 MR. LEEN: Objection, Your Honor. It calls for a
17 conclusion of the witness.
18 THE COURT: He may answer. You can cross-examine him
19 on it.
20 Q. (Mr. London) Did he go back to his car?
21 A. He did.
22 Q. Where was the car parked?
23 A. It was parked just adjacent to the Andrews property, or
24 Andrews carport.
25 Q. Okay. I'm going to use this pointer device here. Well, not
134
1 very -- somewhere here.
2 A. Right there.
3 Q. All right. So he sat in his car. How long did he sit in
4 his car on the property?
5 A. At least three to five minutes. I, I -- as he got into his
6 car, I felt a bit uncomfortable, and so I watched him get into
7 the car, and as I saw him write down information and not leave
8 immediately, I decided to go ahead and walk up the driveway and
9 go to the mailbox and get the mail for the day. I was able to
10 go the entirety of the approximately 100 yards to the mailbox,
11 which is at the -- on the road at the top of the driveway, and
12 turn around and come about a third of the way back before he
13 finally did pass me and leave the property.
14 Q. You testified you saw him writing something down.
15 A. Yes, sir.
16 Q. What was he writing down?
17 A. I don't know.
18 Q. Did he -- did you see him make a point of looking at the
19 cars that were parked on the property?
20 A. I did.
21 MR. LONDON: Nothing further.
22 THE COURT: Cross-examination.
23 CROSS-EXAMINATION
24 BY MR. LEEN:
25 Q. Mr. Groener, are you employed by the federal government?
135
1 A. No, sir.
2 Q. Approximately how long before this date, October 23rd, 2000,
3 did Mr. McNall live at the residence?
4 A. I couldn't answer for sure, but my best guess would be four
5 years.
6 Q. Four years prior?
7 A. Yes.
8 Q. And you had lived there for how long?
9 A. About six months.
10 Q. So there were at least one other resident of the premises
11 between Mr. McNall and you.
12 A. Yes, sir.
13 Q. All right. You indicated you saw Mr. Bell come from around
14 the back of your house.
15 A. Yes, sir.
16 Q. You felt he was startled by you being there.
17 A. Startled or agitated, yes.
18 Q. Did you tell the -- were you interviewed by Special Agent
19 Gordon in connection with this on October 27th?
20 A. I couldn't testify to the exact date, but sometime
21 thereafter, yes.
22 Q. A few days later?
23 A. Yes.
24 Q. A week; a few days to a week later?
25 A. I really couldn't say if it were that soon, but sometime
136
1 after.
2 Q. Do you recall telling him that Mr. Bell appeared to be
3 startled by your presence?
4 A. I don't know if I said startled exactly, but he was
5 definitely not expecting me to show up while he was coming from
6 behind my house, in my opinion.
7 Q. But he didn't say that.
8 A. No, sir.
9 Q. Mr. Bell stated, "I'm looking for Mike McNall."
10 A. Yes, sir.
11 Q. And you told him, "Well, Mr. McNall doesn't live here."
12 A. Yes, sir.
13 Q. And then at that point, Mr. Bell asked you how long had you
14 lived there and how long had it been that Mr. McNall had not.
15 A. Yes, sir.
16 Q. Is that right?
17 And then you asked Mr. Bell what all of this is about. Is
18 that correct?
19 A. I don't know if I asked him what it was all about. I asked
20 him if I could help him with anything, something to that effect,
21 as I recall.
22 Q. And Mr. Bell stated he was an acquaintance.
23 A. Hm-hmm. Yes.
24 Q. And you asked Mr. Bell for a card.
25 A. Yes.
137
1 Q. He said he did not have one.
2 A. Yes.
3 Q. So you asked him his name.
4 A. Yes.
5 Q. And he said Jim Bell.
6 A. Yes. Actually, I believe he -- yes, he said Jim, not
7 James.
8 Q. But he gave the last name Bell, also.
9 A. Yes, sir.
10 Q. And he also gave you a phone number.
11 A. He did.
12 Q. And that number was (360) 696-4308.
13 A. I couldn't -- I don't remember at the time, but I did write
14 it down on a piece of paper.
15 Q. And did you show that to the case agent?
16 A. I did.
17 Q. And at that point, Mr. Bell asked you if this was the
18 Andrews property, pointing to the adjacent house?
19 A. Actually, he said, "I see from the mailbox that this is the
20 Andrews property."
21 Q. Do you recall telling the agent, he asked you if this was
22 the Andrews property, and you confirmed that it was?
23 A. Yes, sir.
24 Q. Then you asked Mr. Bell to leave.
25 A. Yes, sir.
138
1 Q. And he walked to his vehicle. You felt that he was looking
2 at license plate numbers as he did so.
3 A. Very much so. He made -- it seemed to me to make it a point
4 to walk past my car and stare at my license plate, as well as
5 the -- continue on to his car and sort of immediately start
6 writing something down.
7 Q. All right. Now, were you on the cell phone at the time?
8 A. I was.
9 Q. And did you call the cell phone -- on the cell phone, did
10 you tell the person who you were talking to Mr. Bell's tag
11 number?
12 A. Yes, I did.
13 Q. And then Mr. Bell left the premises, is that correct?
14 A. Not immediately, but soon thereafter.
15 Q. He didn't threaten you, did he?
16 A. No, sir.
17 Q. Did you see any weapons in his vehicle or weapons on his
18 person?
19 A. No, sir.
20 Q. There's a sign -- there is not a "no trespassing" sign on
21 the driveway, is there?
22 A. At the time there was a sign that said private drive.
23 Q. Did it say no trespassing?
24 A. No, sir.
25 MR. LEEN: One second, please.
139
1 Q. (By Mr. Leen) Just one other question, Mr. Groener. When
2 you were speaking on your cell phone, when did you initiate the
3 call? Was it before or after you saw Mr. Bell?
4 A. Before.
5 MR. LEEN: Thank you. No further questions.
6 THE COURT: Redirect.
7 REDIRECT EXAMINATION
8 BY MR. LONDON:
9 Q. I just want to clarify your last answer. Are you saying
10 that you were on the cell phone as you were driving into your
11 driveway on -- in your own driveway?
12 A. Yes, sir.
13 Q. So did you tell the person you were on the phone with that
14 there was someone on the property?
15 A. Yes, sir.
16 Q. What did you say?
17 A. I said, "Hold" -- or ", Let me let you go. There's somebody
18 coming from behind my house. It seems rather strange."
19 Q. All right. You mentioned that you observed Mr. Bell's own
20 license number. Were you on the phone when you did that as you
21 were walking up the road?
22 A. I was.
23 Q. And did you report that to your friend?
24 A. I did.
25 Q. Do you remember what the license plate number was that you
140
1 reported at the time?
2 A. From my memory, LBH 939. I believe.
3 Q. All right. You called Mike McNall that night, didn't you?
4 A. I did.
5 Q. What did you tell him?
6 A. I said that some -- apparently a friend of his had been
7 there looking for him, and I got his phone number -- gave him
8 the name and phone number.
9 Q. Do you have any way of knowing how long Mr. Bell was on the
10 property before you got to the driveway?
11 A. I do not.
12 THE COURT: Recross.
13 MR. LEEN: No questions.
14 THE COURT: All right, the witness may be excused.
15 (Witness excused.)
16 THE COURT: The jury will take a 15-minute recess.
17 Please do not discuss the case among yourself or with anyone
18 else during the recess. Please go to the jury room.
19 (Jury excused; 10:45 a.m.)
20 THE COURT: Anything either party wants to take up in
21 the absence of the jury?
22 MR. LEEN: Yes, Your Honor. The defense would like to
23 I make a motion for a mistrial. The basis for the motion, the
24 court has allowed under 404(b) some highly inflammatory
25 evidence. The court has felt that probative value outweighed
141
1 its prejudice. However, when the prosecutor interjected a Sarin
2 attack in Japan in a subway, I think he crossed the line. And
3 given the other evidence in this case, to interject that fact,
4 also, I think at this point has poisoned the jury such that they
5 could not give fair consideration to the evidence against Mr.
6 Bell. We move for a mistrial.
7 THE COURT: Oh, I think a cautionary instruction, based
8 upon your objection, was satisfactory. I told the jury not to
9 consider it. I assume that they will follow the court's
10 directions.
11 MR. LEEN: That's the objection we had, Your Honor.
12 MR. LONDON: Your Honor, if I could just be heard on
13 this point.
14 The two agents who are the victims here, what they knew, how
15 they knew about Sarin, how they had ever heard about Sarin in
16 the first place was by the way most of us learned about Sarin,
17 which was when it was released in the Tokyo subway system by the
18 members of a Japanese cult, killing people and injuring many
19 more. And so to the extent that that was the basis for their
20 knowing what Sarin was and for giving them fear of Sarin and
21 therefore additional basis for fear of this defendant, I don't
22 believe that it is inflammatory and I don't believe any lines
23 were crossed.
24 MR. LEEN: Your Honor, under that theory, if Mr. Bell
25 were Japanese, then I -- or, excuse me -- Chinese or Japanese or
142
1 Asian, then you could talk about what happened during World War
2 II, you could talk about what just recently happened with an
3 American aircraft over China and say, well, that gave me reason
4 to fear him, also.
5 You can't just use the fact that these officers hear things
6 and therefore attribute a fear to Mr. Bell. And that's what is
7 continually happening in this case. Any bad thing in their
8 lives that they can associate in some tenuous manner to Mr. Bell
9 then becomes relevant evidence against Mr. Bell. Whether it's
10 something he's done, whether it's a world event. I just -- we
11 move for a mistrial. We just don't see how we can possibly have
12 a fair trial with this type of evidence before the trier of
13 fact.
14 THE COURT: The same -- same ruling. Denied. Your
15 motion for a mistrial is denied.
16 MR. LEEN: Yes.
17 THE COURT: Fifteen minutes.
18 (Recessed at 10:50 a.m.)
19 (Jury not present.)
20 THE COURT: Anything to take up before the jury?
21 Bring the jury.
22 (Jury present; 11:10 a.m.)
23 THE COURT: All right, all the jurors have returned.
24 Next witness.
25 MR. LONDON: Call Hilda Muramoto.
143
1 HILDA MURAMOTO, PLAINTIFF'S WITNESS, SWORN
2 THE CLERK: Please state your full name and spell your
3 last name.
4 THE WITNESS: Hilda Wong Muramoto. Muramoto is
5 M-u-r-a-m-o-t-o.
6 DIRECT EXAMINATION
7 BY MR. LONDON:
8 Q. Good morning, Ms. Muramoto. I'm Bob London. I'm the
9 Assistant U.S. Attorney on this case.
10 Can you begin, please, by telling the members of the jury if
11 you're employed and how so?
12 A. I'm employed with At Home Corporation. I'm their subpoena
13 manager. I handle all the subpoenas that come into the company
14 and research customer information against our database.
15 Q. All right. And so, do you function as a records custodian?
16 A. Yes, that's correct.
17 Q. And is At Home Corporation an Internet service provider?
18 A. Yes, it is.
19 Q. And where are you located?
20 A. At 450 Broadway Street in Red Wood City, California.
21 Q. But as an Internet service provider in California, can you
22 provide Internet service for somebody in Washington state?
23 A. Yes. We partner with local cable companies to provide a
24 cable Internet service.
25 Q. All right. Have you -- have you checked your records to see
144
1 what account information, if any, you may have for any accounts
2 that might have been opened by a Jim D. Bell at 7214 Corregidor
3 in Vancouver, Washington?
4 A. Yes, I have.
5 Q. And what do your records show with regard to an Internet
6 account opened by Mr. Bell with Excite@Home?
7 A. I don't have it before me, but I did produce information and
8 sent it in to your office.
9 Q. Okay. Well, if you -- I believe that's the letter that you
10 sent that's presently marked as Exhibit 109. If you want to
11 open the binder that would have Exhibit 109 in it and turn to
12 that exhibit, you can use that to refresh your recollection.
13 A. Yes. This is a copy of the letter that I sent in response
14 and it contains the data dump I did from our database that
15 includes the information on the account opened by Jim Bell.
16 Q. Okay. So what can you tell us about that account?
17 A. On this account, there were four email accounts opened on
18 it. It was hard-wired via cable, the cable line to the address
19 at 7214 Corregidor Road in Vancouver, Washington.
20 Q. Okay. When was it opened?
21 A. The service start date was on July 5th of 2000.
22 Q. Okay. And was the -- was there anything in your records to
23 indicate that the account was no longer in service in October or
24 November of 2000?
25 A. No, there was not. At the date I sent this letter was
145
1 November 13th of 2000. I didn't indicate that it was not
2 active, so on that day it was still an active account.
3 Q. Okay. And did the setting up of that account involve a
4 telephone line or a phone number of any kind?
5 A. We don't use a telephone number. We do have a telephone
6 number on record for the customer, but the way the service is
7 set up is through a cable line, not through the telephone line.
8 Q. And that is what you mean by hard-wired, is that correct?
9 A. Yes.
10 Q. All right. What was the phone number that the customer gave
11 you for his contact?
12 A. It's (360) 696-4308.
13 Q. Okay. I want you to tell the jury, if you can, a little bit
14 about what it means for an Internet account to be hard-wired.
15 A. The Internet service that we provide, it's through the cable
16 line, so to get the service set up, you call in and you set up
17 an installation, and a team is sent out from the local cable
18 company that goes and checks your cable line signal and sets up
19 your computer so that you can access the Internet through your
20 cable line so it doesn't require phone line use. And it's
21 considered an always-on connection because you don't need to
22 dial up. And we hard-wire information on to your computer so we
23 can identify you, and that's the same way you're able to surf
24 the net. You connect onto the network through an IP address,
25 and you're assigned a computer DNS designation, as well as the
146
1 subdomain which also identifies the area you're in.
2 Q. But the notion of it being hard-wired, that has certain
3 implications, doesn't it, in terms of whether the account could
4 be accessed from a location other than the home in which it's
5 been hard-wired, is that correct?
6 A. Yes. It would need to be accessed from the home from that
7 computer through that cable modem that's set up to that cable
8 line that is in the home.
9 Q. Would it be possible, then, to take a laptop computer with a
10 modem and dial in to your account from a completely different
11 location?
12 A. No, it would not. Not -- and not to be able to have those
13 same settings with the same IP address, the same DNS, and the
14 same subdomain information, because that only appears through
15 our service that's set up via the cable modem.
16 Q. All right. Now, the Internet service provider known as
17 Excite@Home, which you work for, you assign a particular account
18 number certain numbers, isn't that correct, identifying numbers?
19 A. Yes, that is.
20 Q. What is an IP number?
21 A. It's an Internet protocol number.
22 Q. Okay. What Internet protocol number was assigned to Mr.
23 Bell's account?
24 A. 24.16.209.166.
25 Q. Okay. And you also assigned something called a DNS number,
147
1 isn't that correct?
2 A. Yes.
3 Q. What is a DNS number?
4 A. A DNS designation is an identifier. It's an identifier used
5 on the Internet. In this case we identify all of our customers
6 with a DNS that we can recognize as our own and we can look up
7 in our records to see which customer it was assigned to. The
8 DNS is actually similar to when you look on records and when you
9 look on Internet sites and you put in ww.excite.com. That's a
10 DNS designation. Every Internet site has an IP address and a
11 DNS designation number. It's the same thing with our
12 customers. We give them a DNS designation number that's unique.
13 Q. All right. What DNS number was assigned to Mr. Bell's
14 account?
15 A. C1099371-A.
16 Q. Now, the three numbers that are part of the DNS number you
17 talked about, are these automatically imprinted on any outgoing
18 email messages from a customer's account?
19 A. It would be captured in email headers.
20 Q. Okay. I think you also mentioned a subdomain number. What
21 was Mr. Bell's subdomain number?
22 A. It's vncvr1.wa.home.com.
23 Q. And would these also appear in the header of any email sent
24 from that account?
25 A. Yes, it would.
148
1 Q. Okay. I want you to look at what we have labeled Exhibit
2 140 in the book in front of you. Without publishing it to the
3 jury at this time, it can be published to you on the screen, to
4 the court, and the defendant as well.
5 A. Okay.
6 Q. Do you see that in front of you?
7 A. Yes, I do.
8 Q. Okay, is that an email with the header "Say Goodnight to
9 Joshua"?
10 A. Yes, it is.
11 Q. All right. Do you see the subdomain number that you just
12 mentioned as the one belonging to Mr. Bell's account?
13 A. Yes, I do.
14 Q. Do you see the DNS number?
15 A. Yes, I do.
16 Q. And is the IP number also contained in that information?
17 A. Yes, it is.
18 Q. And based on your understanding, would those numbers appear
19 on any other customer's account?
20 A. No, they would not.
21 MR. LONDON: Just a moment.
22 Nothing further, Your Honor.
23 THE COURT: Are you through with the direct
24 examination?
25 MR. LONDON: I am through with the direct examination.
149
1 THE COURT: Cross-examination.
2 MR. LEEN: Thank you, Your Honor.
3 CROSS-EXAMINATION
4 BY MR. LEEN:
5 Q. Good morning. What is your -- could you pronounce your last
6 name for me again, please?
7 A. Muramoto.
8 Q. Ms. Muramoto, you said that you provide Internet services
9 through a local cable company?
10 A. We partner with a local cable company to provide the
11 Internet service because the connection is through the cable
12 line.
13 Q. It's not a telephone line; it's a cable line?
14 A. Yes.
15 Q. And who is the local company?
16 A. I don't believe that I have that information with me right
17 now.
18 Q. Do you know where they are located?
19 A. I would imagine in the local area of Vancouver, Washington.
20 It's the same company who provides the television cable who
21 provides the Internet cable connection because it's a shared
22 cable line.
23 Q. All right. Now, you were asked to look at Plaintiff's
24 Exhibit No. 140.
25 A. Yes.
150
1 Q. At the top of that it says, "Hotmail leo," and then there's
2 a dash, "101@hotmail.com." What does that indicate up there?
3 Does that indicate that that's the person who received it or the
4 person who sent this?
5 A. I don't know. It's possible it could be the person that
6 received it because the originating portion comes from the
7 bottom.
8 Q. And this is -- who was the message to? Does it indicate?
9 A. Yes, it does. It has the address as
10 cypherpunks@cyberpass.net.
11 Q. And do you know what that is?
12 A. I'm assuming it's an email address to another person.
13 MR. LEEN: I have no further questions. Thank you.
14 THE COURT: Redirect.
15 MR. LONDON: Nothing further.
16 THE COURT: The witness maybe excused.
17 (Witness excused.)
18 THE COURT: Next witness.
19 MR. LONDON: Call John Young.
20 JOHN YOUNG, PLAINTIFF'S WITNESS, SWORN
21 THE CLERK: Please state your full name and spell your
22 last name.
23 THE WITNESS: John Young. Y-o-u-n-g.
24 DIRECT EXAMINATION
25 BY MR. LONDON:
151
1 Q. Good morning, Mr. Young.
2 I want to begin by asking you if you would open the notebook
3 that's going to be on that rack, the one that would correspond
4 or have Exhibit 150 in it. If you could turn to that exhibit
5 and see if you can identify it.
6 A. Which notebook?
7 THE CLERK: Over here, sir.
8 Q. (By Mr. London) There are four on the table next to you and
9 they are divided up by numbers, so find the one that has 150 in
10 it, if you will.
11 A. Okay.
12 Q. All right. Can you look at that and tell us if you
13 recognize what that is?
14 A. Yes, I do.
15 Q. What is it?
16 A. It's an email from me to the Cypherpunks list.
17 Q. And is that -- is the date of that email October 25th, 2000?
18 A. That's correct.
19 Q. All right. Were you the author of this email?
20 A. Yes.
21 Q. All right. And do you -- do you run your own website?
22 A. Yes, I do.
23 Q. What is it called?
24 A. Criptone.r.
25 Q. And where do you live? You don't have to tell us your
152
1 address, just what city you live in.
2 A. I live in New York City.
3 Q. And do you run the website from New York City?
4 A. That's correct.
5 Q. And does your website have a particular mission or purpose
6 that you can describe?
7 A. Yes. It's stated on the site that we publish documents
8 dealing with cryptology or encryption, intelligence, national
9 security, and related matters. One in particular called Dual
10 Use Technologies.
11 Q. Do you work for the government?
12 A. I'm sorry?
13 Q. Do you work for the government?
14 A. No, I do not.
15 Q. So you're not connected to the national security agencies of
16 the United States in any way?
17 A. No.
18 Q. So is it fair to say that you are just interested in issues
19 that pertain to national security and intelligence and
20 cryptology and post things on your website that are related to
21 those issues?
22 A. That's correct.
23 Q. All right. What was the purpose of posting this particular
24 email to your website? Or to the Internet, rather.
25 A. I had run across this listing for CIA organizations from a
153
1 public register of websites, one which, in particular, which
2 deals with government organizations. I'd run across this and
3 had never seen this, this organization listed before.
4 Q. When you say --
5 A. So I posted the message to see if anyone had heard of it
6 before.
7 Q. Okay. When you say that you ran across information, where
8 were you looking? What kind of search were you engaged in that
9 enabled you to run across the information that you wanted to
10 find out more about in this email?
11 A. I went to the gov register of domain names -- there's a
12 special site you go to to find out about government
13 organizations -- and entered the term "CIA," and this is one of
14 the ones that came up form that searching. I do that
15 periodically just to see what turns up.
16 Q. Okay. It's a possibility that not everybody on the jury is
17 as familiar with using the Internet, so if there's a term that
18 you think might not be familiar to someone and you want to
19 explain it, please feel free to do so, or I will ask you to do
20 so if I think that there is --
21 A. I will be glad to do so.
22 Q. So you were, if I understand your answer, you were on the
23 Internet and you were looking at a particular site and you were
24 looking for information and you ran across something that
25 intrigued you and you wanted to find out more about it, is that
154
1 correct?
2 A. That's correct.
3 Q. All right. What was the information you found that you
4 thought you wanted to know more about?
5 A. It's the ISTAC.dom listed here. Shall I read that?
6 Q. Yes.
7 A. Make it clear what I'm referring to.
8 Q. Yes. Explain to the jury, if you will, what this ISTAC
9 acronym was and what you thought you wanted to learn about it.
10 A. Well, what was listed was CIA, and in parentheses, ISTAC dot
11 -- dash DOM, and it gave an address in Vienna, Virginia, and it
12 says it's the domain name of ISTAC.GOV. And I had not heard of
13 that before, so I sent this email out soliciting information
14 about it.
15 Q. Okay. So if I understand you correctly, what you're saying
16 is that you found a reference to what might appear to be an
17 organization called ISTAC -- I-S-T-A-C -- and that it had, in
18 your mind, anyway, some connection to the CIA, is that correct?
19 A. Yes. Because the CIA was listed with that domain name.
20 Q. Okay. And was there anything in terms of -- where did you
21 first find this reference to ISTAC, specifically?
22 A. I went to the registry of governmental websites and entered
23 the initials CIA.
24 Q. Okay.
25 A. It's a search feature on that site.
155
1 Q. All right.
2 A. This is one of the things that came up, along with all the
3 other CIA articles that are listed there.
4 Q. All right. So there is a place on the Internet where all of
5 the Internet domain names connected to government agencies are
6 listed, is that correct?
7 A. That's correct.
8 Q. That's where you went.
9 A. Yes.
10 Q. And you ran a search under CIA, is that correct?
11 A. Yes. Um-hmm.
12 Q. And one of the things you came up with then was CIA with
13 this ISTAC domain?
14 A. Correct.
15 Q. Okay. How did you come across the name Deforest X. Mueller,
16 M-u-e-l-l-e-r? Was that included as being related to this
17 ISTAC?
18 A. That's correct. May I look at the rest of this? The cover
19 sheet showing that, can I pull this out?
20 Q. Yes.
21 MR. LONDON: In fact, at this point I would like to
22 offer Exhibit 150 and publish it.
23 MR. LEEN: No objection.
24 THE COURT: 150 is admitted.
25 (Exhibit No. 150 was admitted.)
156
1 A. Shall I proceed?
2 Q. (By Mr. London) Yes.
3 A. The name of Deforest X. Mueller is listed as one of the
4 contact persons for this site.
5 Q. Okay. So you had found a domain name for ISTAC, which you
6 believed to have a connection to the CIA because you had found
7 it by running a search for CIA, correct?
8 A. Yes.
9 Q. And a contact person was listed in the information that came
10 back to you, and that was a Deforest X. Mueller, correct?
11 A. Yes.
12 Q. And then based on that information, you posted this email,
13 Exhibit 150, to the Cypherpunks list on the Internet, is that
14 correct?
15 A. Yes.
16 Q. And the purpose of your email, this Exhibit 150, was to
17 request, would anyone in Oregon know about a CIA organization
18 acronymed ISTAC, correct?
19 A. Well, it was if anyone on the list had heard of it.
20 Q. Okay. Anyone on the list in Oregon?
21 A. Not necessarily. That -- that aspect was covered, but it
22 was generally, when I post these requests, it's that anyone may
23 know about these things.
24 Q. All right. But is it fair to characterize this email as a
25 request for further information or assistance, on your part,
157
1 from anyone out there on the list who might know about a CIA
2 related organization in Oregon called ISTAC?
3 A. Indeed, yes.
4 Q. And did you include this information on the second page of
5 this email that had not only the name Deforest X. Mueller, but
6 then an address at 63350 Majestic Loop in Bend, Oregon?
7 A. Yes, I did.
8 Q. And the phone number that appears beneath that?
9 A. That's correct.
10 Q. And you got all of that information as a result of the
11 search that you did, is that correct?
12 A. That's correct.
13 May I say more, or should I not say more?
14 MR. LONDON: I don't have any further questions, but
15 Mr. Leen, I'm sure, will have some.
16 THE COURT: Cross-examination.
17 MR. LEEN: One second, Your Honor.
18 CROSS-EXAMINATION
19 BY MR. LEEN:
20 Q. Good morning, Mr. Young.
21 A. Good morning.
22 Q. Mr. Young, why did you post this to the Cypherpunks mail
23 list?
24 A. It's always been a good source for information, or at least
25 it's been a good source for me to post questions like this.
158
1 Q. Do you have a rough idea how many people are on the
2 Cypherpunks mail list?
3 A. I could only say in the neighborhood of several hundred, but
4 I don't know for sure.
5 Q. Does the Cypherpunk mail list deal with subjects that are
6 similar to subjects that you deal with on your website?
7 A. Periodically, yes.
8 Q. And what would those be?
9 A. Well, the principal one is encryption matters. And from
10 encryption, dual use technologies, which are technologies at --
11 they bridge commercial and national security affairs, and
12 through that dual use, sometimes other matters come up dealing
13 with intelligence and military affairs. So it starts off,
14 though, with encryption.
15 Q. Do you post the name of suspected CIA operatives on your
16 website?
17 A. I have, yes.
18 Q. And why do you do that?
19 A. Public information.
20 Q. Is there any other reason, other than just because you have
21 a legal right to do it, that you do?
22 A. Well, it would all deal with public information. We publish
23 whatever information we can get or is sent to us about
24 intelligence agencies.
25 Q. Does anyone pay for this information or ask you specifically
159
1 to provide this information, the name of CIA operatives?
2 A. No.
3 Q. Potentially, I would imagine, they could be injured or
4 killed if you publish their names.
5 A. I don't think so. Although, we've read about such
6 allegations, but I personally don't believe that's true.
7 Q. You feel that you have the right to publish that
8 information.
9 A. So long as it's legal, yes.
10 Q. And as long as you obtain it on the Internet or through some
11 lawful source.
12 A. I'm sorry, I didn't hear that.
13 Q. I say, as long as you obtain it through some lawful source,
14 you feel that it's -- then you will publish it if you feel that
15 your information is correct?
16 A. That's correct.
17 Q. And, for example, this Mr. Mueller, why didn't you just call
18 him since his telephone number, I think, is on that web
19 posting? Why didn't you just call him up and ask him?
20 A. Well, I don't do much telephone calling. I do most of what
21 I do on the Internet, and since this was the first time I had
22 ever seen an address like this connected with a CIA site, I
23 thought it was very unusual and was actually quite mystified why
24 this would be done. So I wanted to find out, one, was it true?
25 Is this a spoof? I'm well aware that intelligence agents often
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1 put out misinformation on purpose, so I was curious as to why
2 this was done. Since the other contact information on this --
3 on this entry actually is more customary, where they use a last
4 initial or there's no actual specific information. This is the
5 first time I have ever seen this address-type information given
6 for a person associated with the CIA. Typically they never ever
7 do that. So I was curious whether this was a spoof, you know.
8 You know, this information. So I wanted to find out more about
9 it.
10 Q. But you do use the telephone? You took one of my calls,
11 didn't you?
12 A. I'm sorry?
13 Q. You took a telephone call from me. Didn't I call you?
14 A. Yes, you did.
15 Q. So you use the telephone. Why didn't you just call Mr.
16 Mueller and ask him?
17 A. Well, as I said, most of this that I do on this site is done
18 through the Internet. I like it a lot, I feel comfortable with
19 it, and it's the way I gather and receive information.
20 Q. Why didn't you email him?
21 A. Excuse me?
22 Q. Why didn't you email him?
23 A. I did.
24 Q. Did he respond?
25 A. No. I actually emailed two of the persons listed and got no
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1 response from either one, and one of them bounced. The other
2 one, nothing happened. That often -- when you send emails often
3 to CIA addresses, nothing happens. You don't get a bounce, you
4 don't get anything.
5 Q. Will you explain to the jury what you mean by bounce?
6 A. Well, the message was returned; there's no such person, no
7 such address. And that's what happened with Mr. Mueller. There
8 was nothing -- it was a bounced message. The message I sent to
9 Dan S., nothing happened. It went into a black hole.
10 Q. And what do you mean by that?
11 A. Well, I meant -- often when you send email to a -- this is
12 speculation, but the speculation is that if you send an email
13 and there's no bounce, which means even ISP doesn't send it back
14 with a bounce message, it could have been received and just
15 absorbed for whatever reason. Now, that's not always true, but
16 that's one possibility.
17 Q. When you mean received and absorbed, sometimes I get email
18 and I just delete it. Is that what you mean by -- without even
19 reading it. Is that what you mean by --
20 A. It's possible.
21 Q. -- received and absorbed?
22 A. That's possible, yes. But I should say, some ISPs don't
23 have a bounce feature. Many government sites don't have a
24 bounce feature. Many commercial -- or I understand most
25 commercial sites do have a bounce feature.
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1 Q. Have you ever communicated by email with Mr. Bell, James
2 Bell, or a person who identified himself as James Bell?
3 A. Well, I was asked that during the grand jury, and my answer
4 was no, so I think I will stick with that.
5 Q. Well, is that the truth?
6 A. Well, I don't like to say I don't recall, so I will just say
7 no.
8 Q. Well, have you ever heard of an essay called Assassination
9 Politics?
10 A. I have.
11 Q. Or referred to as AP?
12 A. Yes, indeed.
13 Q. Who do you know to be the author of that?
14 A. I'm familiar with --
15 Q. Or who has identified himself as the author?
16 A. That's correct. That's correct.
17 Q. Mr. Bell?
18 A. Yes, James Bell.
19 Q. And have you ever had email correspondence with the person
20 who you believed was the author of that essay?
21 A. Well, it's possible, but I don't recall it.
22 Q. Did you post that essay or a link to that essay on your
23 website?
24 A. Yes. I have published it, and it's still there. It's been
25 there for quite awhile.
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1 Q. And why was that?
2 A. Well, it's a very interesting essay and it deals with
3 technology issues. It's well written. There's been a lot of
4 interest in it. I saw it on another site and copied it from
5 that site and put it on my site as part of the archive that I
6 run.
7 Q. What do you mean by archive?
8 A. Well, I have about 7,000 documents on this site dealing with
9 matters, as I said, with encryption, dual use, intelligence,
10 national security. And AP is a good example of how some of that
11 technology is envisioned.
12 Q. Now, when you mean archive, is that -- sometimes on the
13 computer there's a little, like a blue link, and you click on it
14 and you can -- and then it will go to someplace else and then it
15 will list documents and you can click on those and eventually
16 you get somewhere. Is that what you mean by archive?
17 A. No. The archive here -- the 7,000 documents are on a web
18 server that I rent. Now, that's distinguished from links that
19 go to elsewhere. So every link that goes as archive comes to --
20 retrieves material from the server that I rent and operate.
21 Q. Do you feel that Mr. Bell's essay, Assassination Politics,
22 is feasible to implement?
23 A. No.
24 Q. Why not?
25 A. Well, based on discussions I've read about it -- in fact,
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1 there are a number of technologies that are envisioned that are
2 just