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 3 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
284
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 5, 2001
) 9:35 a.m.
8 Defendant. )
)
9
10 VOLUME 3
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.
285
1 I N D E X
2 Page
3 VOLUME 3 284 - 470
4
MOTIONS:
5
Plaintiff's Motion In Limine ................... 345
6
7 WITNESSES ON BEHALF OF PLAINTIFF:
8 JOHN RABATIN
Direct ....................... 288
9 Cross ........................ 312
Redirect ..................... 316
10
BARBARA J. GORDON
11 Direct ....................... 317
Cross ........................ 327
12
ROBERT DUTRA
13 Direct ....................... 329
14 SUSAN C. WHITE
Direct ....................... 331
15
KRISTIE HANLEY
16 Direct ....................... 347
17 BRIAN D. MEYER
Direct ....................... 354
18 Cross ........................ 376
Redirect ..................... 378
19 Recross ...................... 379
20 KEVIN LAYNG
Direct ....................... 381
21 Cross ........................ 389
22 RANDY R. OXFORD
Direct ....................... 390
23 Voir Dire .................... 396
Direct (Continuing) ........... 397
24
25
286
1 I N D E X
2 WITNESSES ON BEHALF OF PLAINTIFF:
3 JOHN BRANTON
Direct ....................... 398
4 Cross ........................ 402
Redirect ..................... 405
5 Recross ...................... 405
Redirect ..................... 408
6
MICHAEL MCNALL
7 Direct ....................... 413
Cross ........................ 429
8 Redirect ..................... 434
9 JEFFREY GORDON
Direct ....................... 435
10
11 EXHIBITS Admitted
12 116 419
129 289
13 131 291
133 292
14 137A 337
141 293
15 142 294
143 296
16 152 298
153 298
17 154 299
156 300
18 158 301
161 303
19 163 303
172 350
20 173 351
174 351
21 175 351
176 353
22 177 353
178 353
23 179 352
181 308
24 182 309
185 310
25 215 369
287
1 I N D E X
2 EXHIBITS Admitted
3 216 369
220 387
4 221 388
222 395
5 223 395
224 395
6 225 397
226 394
7 226A 394
227 394
8 227A 394
240 331
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
288
1 (Defendant present.)
2 MORNING SESSION
3 THE COURT: Anything to take up?
4 MR. LEEN: No, sir.
5 MR. LONDON: No, Your Honor.
6 THE COURT: Bring the jury.
7 (Jury present; 9:37 a.m.)
8 THE COURT: Good morning.
9 (Jury responds good morning.)
10 THE COURT: Let the record reflect all members of the
11 jury are present. The witness is on the stand, still under
12 oath, still on direct examination.
13 Counsel.
14 DIRECT EXAMINATION (Continuing)
15 BY MR. LONDON:
16 Q. Mr. Rabatin, good morning.
17 A. Good morning.
18 Q. You will recall that yesterday I was taking you through a
19 number of exhibits that were downloaded by you from the
20 defendant's computers to -- the defendant's computers found
21 during the search, a warrant -- execution of the search warrant
22 that you in fact were present at last fall.
23 THE CLERK: Mr. London, do you want to move the
24 microphone over.
25 Thank you.
289
1 Q. (By Mr. London) And I want to resume that. I've got about
2 19 more of these to take you through, so we won't take too long
3 doing it.
4 Turn your attention, please, to Exhibit 129. And as we were
5 doing yesterday, if you will just look at the exhibit as I make
6 reference to it and tell the jury if you recognize it and why
7 and then tell us what it is.
8 A. Yes. Exhibit 129, this is a file that I recovered from the
9 computer that was in the basement. It's a document entitled,
10 "McNalls.doc." It appears to be, again, a DMV search.
11 Q. For Michael McNall?
12 A. That's correct.
13 MR. LONDON: I offer 129.
14 MR. LEEN: May I voir dire, Your Honor, just for one
15 point?
16 THE COURT: Are you through questioning him?
17 MR. LONDON: I am on that exhibit.
18 THE COURT: Go ahead.
19 MR. LEEN: On the top it says "McNalls.doc." Do you
20 know whose handwriting that is?
21 THE WITNESS: That's mine.
22 THE COURT: It's admitted. 129.
23 (Exhibit No. 129 was admitted.)
24 Q. (By Mr. London) When you write "McNalls.doc," what was the
25 reason for doing that?
290
1 A. That's for identification.
2 Q. Does that explain the name of the file that you downloaded?
3 A. Yes, it does.
4 Q. Please turn to Exhibit 131?
5 MR. LEEN: What number?
6 MR. LONDON: 131.
7 A. This is an email that I recovered from the computer that
8 was upstairs. It was from Jim Bell, jimbell@home.com to
9 anonymous@openpgp.net. Multiple recipients of list
10 <cypherpunks@openpgp.net>. It was dated October 19th, 2000.
11 Q. What is the subject line?
12 MR. LEEN: Objection, Your Honor. 403, and there's no
13 indication that Mr. Bell is responsible for the subject line.
14 It has the carets indicating that someone else wrote the
15 original message. It would be hearsay.
16 THE COURT: Was it in the exhibit?
17 MR. LONDON: It is, yes. It's part of the exhibit.
18 THE COURT: It will be admitted.
19 (Exhibit No. 131 was admitted.)
20 Q. (By Mr. London) Would you tell us what the subject line is,
21 please.
22 A. Re: judges needing killing.
23 Q. And the date of the email?
24 A. It was October 19, 2000.
25 Q. Okay. Now, does this appear to be something that was on the
291
1 Internet?
2 A. Yes, it does.
3 Q. All right. And does it involve the use of chemicals known
4 as PCBs?
5 A. Yes, it does.
6 MR. LONDON: I'd offer 131.
7 MR. LEEN: I would make the same objection as I just
8 raised, Your Honor.
9 THE COURT: 131 is admit.
10 (Exhibit No. 131 was admitted.)
11 Q. (By Mr. London) Would you please read the paragraph
12 beginning "Naturally"?
13 A. "Naturally, a chemical solution (pun not directly
14 intended... but I'll take it anyway) becomes apparent. If the
15 ultimate motivation of the car seizures is to sell them and
16 keep the money, what would happen if somebody acquired a few
17 ounces or gallons of PCB's (poly-chlorinated biphenyls; common
18 in 20+year-old (non-electrolytic) capacitors), and sprayed them
19 (only a very tiny amount per car should be necessary, maybe one
20 milliliter or so?) into those seized cars through a broken
21 window (or injected through door seals). Naturally, it would be
22 important to anonymously call the local newspaper or TV stations
23 and report on what had occurred, possibly the EPA as well. That
24 car would suddenly change from a $10,000 asset into possibly a
25 $100,000 liability for the agency which seized them."
292
1 Q. All right. And it is signed by who?
2 A. Jim Bell.
3 Q. And the phrase under it, the name, what is that?
4 A. Better Living Through Chemistry.
5 Q. Turn to Exhibit 133, please.
6 A. This appears to be an email which I took from the same
7 computer. It's from Jim Bell, jimbell@home.com, to Ray
8 Dillinger, bear@sonic.net. The date was October 19, 2000.
9 Subject, judges needed killing -- needing killing.
10 Q. And is there a reference in that one also to PCBs?
11 A. Yes.
12 MR. LONDON: I offer 133.
13 MR. LEEN: Your Honor, this is just a repetition of
14 the prior exhibit.
15 THE COURT: 133 is admitted.
16 MR. LEEN: May I make the same objections as I did
17 to the prior exhibit?
18 THE COURT: It's admitted.
19 MR. LEEN: Okay.
20 (Exhibit No. 133 was admitted.)
21 Q. (By Mr. London) Please turn to Exhibit 141.
22 A. This is also an email which I obtained from the same
23 computer. It's from Jim Bell, jimbell@home.com, to
24 cypherpunks@cyberpass.net. The date was October 24th, 2000.
25 Subject line is, "Say Goodnight to Joshua, Mr. Anonymous."
293
1 MR. LONDON: I offer 141.
2 THE COURT: 141 is admitted.
3 (Exhibit No. 141 was admitted.)
4 MR. LONDON: I ask that 141 be published to the jury
5 as well.
6 THE COURT: Go ahead.
7 THE COURT: Just a moment. Counsel, when you say
8 published, can any member -- if you cannot read it or see it,
9 raise your hand.
10 (Most jurors raise their hand.)
11 THE COURT: There's your problem.
12 MR. LONDON: Thank you, Your Honor.
13 Q. (By Mr. London) Mr. Rabatin, I would like you to read the
14 text of this exhibit.
15 A. "Sorry, but I didn't particularly appreciate the musical
16 telephone call. An overenthusiastic colleague, perhaps? Before
17 I was satisfied to look into people who had, unfortunately,
18 allowed their property to be used against me. I found out most
19 of what I needed to know about them, months ago, and they will
20 be dragged through the (legal) dirt as soon as that's needed to
21 get the rest of the information. (Have you told them, yet? I
22 think a few of them caught on already; they're not very good
23 actors.)
24 "So I decided to respond by doing a couple of hours of
25 research, and combine that with a few house of field-trip. Yes,
294
1 that one. Just a 'show the flag' circuit. Intended to be
2 seen. Mapmaking for a process server? Just a reminder.
3 "So say good night to Joshua, Mr. Anonymous. Tell him it's
4 not his fault that his father is a thug.
5 "Jim Bell."
6 Q. Please turn to Exhibit 142.
7 A. This is also an email which I took from the same computer.
8 It's from Jim Bell, jimbell@home.com, to Robert East,
9 viking@pacifier.com. Date was October 24th, 2000. Subject is,
10 "Re: Here's a list from the white pages."
11 Q. Are there references in this to a Jeffie, and address is
12 Eagle Creek?
13 A. Yes.
14 Q. And to Mike McNall?
15 A. Yes.
16 Q. And his address?
17 A. Yes.
18 MR. LONDON: I ask that 142 be admitted.
19 MR. LEEN: No objection.
20 THE COURT: 142 is admitted.
21 (Exhibit No. 142 was admitted.)
22 MR. LONDON: And published as well.
23 Q. (By Mr. London) And, Mr. Rabatin, I ask that you read from
24 "You may recall."
25 THE COURT: Go ahead.
295
1 A. "You may recall that I've mentioned that of all the
2 road-trip research that I've done in the last few months, it
3 seems like nearly all of it has been in the Clackamas County
4 (Gladstone, Oregon City, etc., etc., and now Eagle Creek.
5 Interesting.
6 "However, as I expected the Eagle Creek address is simply an
7 old one for Jeffie. I visited it simply to check out the lay of
8 the land, write down license plates of the new owners (who might
9 be 'related', by employer, to the previous owner.)
10 "While in that area I visited the old address of 'Mike
11 McNall', BATF agent, to talk to him about Ryan Lund. Rented
12 house, new renter. But the new renter behaved as if he knew who
13 McNall was, and is. He might be a Fed, as well.
14 "I sent the following item to Cypherpunks List for the
15 benefit of those listening.
16 "Quote."
17 Q. I don't need you to -- you can stop there, but do you
18 recognize the following item that was sent to the Cypherpunks
19 List, essentially the "Say Goodnight to Joshua" email?
20 A. Yes.
21 Q. All right. What is the date of this?
22 A. October 24th, 2000.
23 Q. What time was it posed to the Cypherpunks list?
24 A. 2:30 p.m.
25 Q. Please turn to Exhibit 143.
296
1 A. This is also an email which I obtained from the same
2 computer. It's from Jim Bell, jimbell@home.com, to John
3 Branton, John.Branton@Columbian.com. The date is October 25th,
4 2000. The subject is "Re: Fw: Harry Browne in Portland
5 11/1/00."
6 Q. Does this also contain references to Jeff Gordon of the
7 Treasury and Mike McNall of the BATF?
8 A. Yes, it does.
9 MR. LONDON: I offer 143.
10 MR. LEEN: No objection.
11 THE COURT: 143 is admitted.
12 (Exhibit No. 143 was admitted.)
13 MR. LONDON: I publish it.
14 Q. (By Mr. London) And I'd just ask you to read the first
15 paragraph.
16 A. "Sure. I did a road trip a couple of days ago which
17 probably worries the Feds. Talk to Jeff Gordon of the Treasury
18 Department and Mike McNall of the BATF (Portland Office.) Just
19 wanted to ask McNall about Ryan Thomas Lund. (BTW, I found that
20 he got about ten years off of his sentence, because of his
21 assistance in assaulting me. Care to see the evidence (Fed
22 paperwork, sentencing documents, etc.)?
23 "Jim Bell."
24 Q. Go to 152, please.
25 A. This is also an email which I retrieved from the same
297
1 computer from Jim Bell. Jimbell@home.com. Sent to John Young,
2 jya@pipeline.com. Also cypherpunks@cyberpass.net. It's dated
3 October 25th, 2000. Subject: Re: CIA in Oregon, Intelink.
4 Q. And are there references in this document to a Scott
5 Deforest Mueller?
6 A. That's correct.
7 MR. LONDON: Okay. I offer 152.
8 MR. LEEN: Your Honor, this is a copy of a prior
9 exhibit. There's nothing new in this exhibit. It's cumulative.
10 THE COURT: It's repetitious to another exhibit, and
11 which one is it?
12 MR. LEEN: I don't know the number, Your Honor, but the
13 body of it has been introduced in actually two emails already.
14 The one from John Young to the Cypherpunks list.
15 MR. LONDON: It's being offered here for the
16 significance of the fact that it's found as an outgoing email on
17 the defendant's computer.
18 THE COURT: He's saying it's repetitious.
19 MR. LEEN: Yes, sir. This same email has been
20 introduced several times.
21 MR. LONDON: Well, the fact that a version --
22 THE COURT: Why do you need it again then?
23 MR. LONDON: Well, it's significant to show that it's
24 sent as an outgoing email from the defendant's own computer.
25 The other versions were taken off the Internet in the form that
298
1 it was seen.
2 THE COURT: Well, it's not the same exhibit then.
3 MR. LONDON: It's not the same exhibit.
4 THE COURT: Then, 152.
5 MR. LONDON: Much of the text is the same, but it's
6 actually a different exhibit. It's 152.
7 THE COURT: It will be admitted.
8 (Exhibit No. 152 was admitted.)
9 Q. (By Mr. London) Mr. Rabatin, does this appear to include
10 database search material for a Scott Mueller in Bend, Oregon?
11 A. That's correct.
12 Q. Please turn to 153.
13 A. This is also an email that I retrieved from the same
14 computer. It's from Jim Bell, jimbell@home.com to Bob Johnson,
15 taallltom@yahoo.com. October 26th, 2000. Subject: Re: Harry
16 Brown coming to PDX November 1.
17 Q. In this email, does Mr. Bell also appear to discuss doing
18 some DMV database work?
19 Last paragraph.
20 A. Yes, that's correct.
21 MR. LONDON: I offer 153.
22 MR. LEEN: No objection.
23 THE COURT: 153 is admitted.
24 (Exhibit No. 153 was admitted.)
25 Q. (By Mr. London) Please turn to 154.
299
1 A. This is also an email which I retrieved from the same
2 computer. It's from Jim Bell, jimbell@home.com to Bob Johnson,
3 tallltom@yahoo.com. Date is October 27, 2000. Subject is Re:
4 Harry Brown coming to PDX November 1.
5 Q. And the reference is there to outing feds.
6 A. That's correct.
7 MR. LONDON: Okay. I offer 154.
8 MR. LEEN: No objection.
9 THE COURT: 154 is admitted.
10 (Exhibit No. 154 was admitted.)
11 Q. (By Mr. London) Please turn to 156.
12 A. This is also a email I retrieved from the same computer.
13 It's from Jim Bell, jimbell@home.com, to
14 cypherpunks@cyberpass.net. Also with cc to John Young,
15 jya@pipeline.com. Dated October 27, 2000. Subject is Fw: CIA
16 in Oregon, Intelink.
17 Q. Does this appear to be data base search material for a Scott
18 Mueller?
19 A. That's correct.
20 MR. LONDON: I'd offer 156.
21 MR. LEEN: I object, Your Honor. It's the same
22 database search as Scott Mueller that we just had introduced
23 about three exhibits ago.
24 THE COURT: Is it repetitious?
25 MR. LEEN: Yes.
300
1 MR. LONDON: It's not, Your Honor, because here its
2 significance is this is the outgoing version of that email from
3 the defendant's own computer.
4 MR. LEEN: The prior one was, too, Your Honor.
5 The prior one was 152. It was outgoing, also.
6 MR. LONDON: Your Honor, it adds additional material
7 that is not in 152. The date of birth information for Mr.
8 Mueller's wife, for example.
9 THE COURT: 156 is admitted.
10 (Exhibit No. 156 was admitted.)
11 MR. LEEN: May we move then to strike 152?
12 THE COURT: 152 will remain and 156 is admitted.
13 Q. (By Mr. London) Please turn to 158.
14 A. This is an email which I retrieved from the same computer.
15 It's from Jim Bell, jimbell@home.com, to Cypherpunks at
16 cypherpunks@cyberpass.net. Cc to John Young, jya@pipeline.com.
17 Dated October 27, 2000. Subject: Re: CIA in Oregon, Intelink.
18 Q. All right. And is this also -- does this also contain
19 database search information for Scott Mueller and Kim Mueller?
20 A. That's correct.
21 Q. Does it contain any additional information that was not in
22 156?
23 A. That's correct.
24 Q. Can you read the last paragraph, please?
25 MR. LONDON: Actually, I will offer -- excuse me. I
301
1 will offer 158.
2 MR. LEEN: Same objection.
3 THE COURT: 158 is admitted.
4 (Exhibit No. 158 was admitted.)
5 Q. (By Mr. London) Can you read the last paragraph, please?
6 A. "Turns out that there is no 'John Ashe' nor 'Anna Ashe' in
7 either the year 2000 nor year 1996 Oregon DMV databases. They
8 are probably just aliases for the Muellers."
9 Q. What was the date that this was sent to John Young and to
10 the Cypherpunks?
11 A. October 27, 2000.
12 Q. Turn to page 160.
13 A. This also is an email that I retrieved from the same
14 computer. It's from Jim Bell, jimbell@home.com, to John
15 Branton, John.Branton@Columbian.com, with cc to John Painter,
16 Jr., johnpainter@news.oregonian.com, dated October 28th, 2000.
17 Subject: Out and about.
18 Q. All right. What time was this email sent to John Branton at
19 the Columbian?
20 A. 1:27 a.m.
21 Q. And does this discuss outing a CIA employee who lives in
22 Bend?
23 A. That's correct.
24 Q. Does it mention Steve Deforest Mueller specifically?
25 A. That's correct.
302
1 MR. LONDON: I'd offer 160.
2 MR. LEEN: No objection.
3 THE COURT: 160 is admitted.
4 MR. LONDON: I'd ask that be published.
5 Q. (By Mr. London) Mr. Branton, while that's being published
6 on the screen -- excuse me, Mr. Rabatin -- will you please read
7 the two paragraphs beginning "BTW"?
8 A. "BTW, in the last two days I have helped to 'out' a CIA
9 employee who lives in Bend, Oregon. One of his aliases is
10 Deforest X. Mueller, but in the Oregon DMV database he is 'Steve
11 Deforest Mueller' of Bend, Oregon. He may also have used the
12 alias 'John R. Ashe.' See the material below for details.
13 "Given the fact that the Columbian was happy to write all
14 sorts of articles about me when the government was making its
15 foolish accusations, it is obvious that my persona and
16 activities have easily reached the level of 'newsworthy', per
17 se. Well, now I am acting again. And I'm keeping records.
18 What I'm wondering is how newsworthy my activities will have to
19 become before you fear ignoring me more than you fear covering
20 me."
21 Q. Please turn to Exhibit 161.
22 A. It's also an email that I retrieved from the same computer.
23 It's from Jim Bell, jimbell@home.com, to John Young,
24 jya@pipeline.com. It was dated October 28th, 2000. Subject:
25 Re: CIA in Oregon, Intelink.
303
1 Q. Does this contain more information about Mr. Mueller?
2 A. That's correct.
3 Q. Okay.
4 MR. LONDON: I'd offer 161.
5 MR. LEEN: No objection.
6 THE COURT: 161 is admitted.
7 (Exhibit No. 161 was admitted.)
8 Q. (By Mr. London) Can you read the single line, "Ooops!"
9 A. "Ooops! Dumb screwup. Mueller's DOB is 7/10/50, not 1959."
10 Q. Please turn to 163.
11 A. It's also an e-mail I retrieved from the same computer.
12 It's from Jim Bell, jimbell@home.com, to A. Melon,
13 juicy@melontraffickers.com, and also cypherpunks@cyberpass.net,
14 dated October 30th, 2000. Subject: Re: Parties.
15 Q. Does this contain -- turn your attention to the last couple
16 of paragraphs. Does this contain any material about database
17 collection?
18 A. That's correct.
19 MR. LONDON: I offer 163.
20 MR. LEEN: No objection.
21 THE COURT: 163 is admitted.
22 (Exhibit No. 163 was admitted.)
23 Q. (By Mr. London) Could you please read the last paragraph,
24 "Now would be an excellent time"?
25 A. "Now would be an excellent time for anyone to go to their
304
1 county voter's registration office, and order a copy of the
2 voter's registration database for current and future use."
3 Q. Please turn to 164.
4 A. It's also an email which I retrieved from the same
5 computer. It's from Jim Bell, jimbell@home.com. It's to
6 jessicas@alum.mit.edu, and also darcy.bender@miis.edu. There's
7 a number of carbon copies. Do you want me to read those also?
8 Q. Who is cc'd on this email?
9 A. Cc, there's Declan McCullagh, declan@wired.com; John
10 Branton, John.Branton@Columbian.com; John Painter, Jr.,
11 johnpainter@news.oregonian.com. It was dated October 30, 2000.
12 The subject is: Still interested in uncovering the truth,
13 Jessica and Darcy?
14 Q. All right. And does this reference Mike McNall, the ATF
15 agent?
16 A. Yes, it does.
17 MR. LONDON: I'd offer 164.
18 MR. LEEN: No objection.
19 THE COURT: 164 is admitted.
20 Q. (By Mr. London) Could you simply read the first paragraph?
21 A. "There is something I'd like you to do for me. I would like
22 you to call the Portland, Oregon BATF office (503-326-5115:
23 That's the number for 'firearms enforcements' which may be the
24 proper number for this case.) and talk to 'Mike McNall.'"
25 MR. LEEN: Your Honor, I would ask under the rule of
305
1 completeness that the rest of the email be read because it
2 should be read contemporaneously with the first paragraph.
3 MR. LONDON: Why don't we publish it.
4 Q. (By Mr. London) I presume that there's difficulty reading
5 this, so I'm going to ask you to read the exhibit, if you will.
6 A. Continuing on: "Mr. McNall is the investigator who worked
7 with local (Clark County, Washington) authorities in
8 investigating Ryan Thomas Lund, whose house was searched early
9 July 1997, and who was arrested and subsequently pled guilty to
10 illegal possession of a gun. (As a felon, Lund was not allowed
11 to possess guns.) Lund was also in the operation of selling
12 drugs (specifically, methamphetamine).
13 "Lund was, at the time, a four-time felon, twice for
14 controlled-substances (drugs) violations. This is significant,
15 because as my prior emails to you should have made clear,
16 authorities took perhaps ten years off of Lund's proper sentence
17 because of two subterfuges. First (minor) they appeared to not
18 have included a substantial fraction of his criminal history in
19 the 'Criminal History Category' and thus put him on 'Column 5'
20 not 'Column 6' as he deserved. (This would be much clearer if
21 you had a copy of the 'Federal sentencing matrix' chart).
22 "Second (major!) they sentenced him as though neither of his
23 two drug felony convictions had existed. The specific
24 sentencing guideline involved, which as I recall was 2K2.1, said
25 that illegal possession of a gun (i.e. by a felon) is a
306
1 14-point-level offense, but should be treated as a 20 point
2 level if the criminal has a single prior drug felony conviction,
3 and 24 points if he has been convicted of two such felonies.
4 "Furthermore, despite the fact that Lund was clearly engaged
5 in a crime (illegal drug sales) associated with his possession
6 of a gun, the prosecution 'stipulated' that this was not the
7 case. Had they properly recognized Lund's crime this would have
8 added an extra four-points, for a total of 28, minus the usual
9 two points for 'acceptance of responsibility.' Total,
10 therefore, of 26 points.
11 "As I recall, this would have resulted in a proper
12 sentencing range of 120-150 months, or 10-12.5 years. What Lund
13 actually got was 27 months, of which he did perhaps 24 months or
14 so. I believe he got such a cushy deal because he did what the
15 investigators asked him to do: He was instructed to assault me,
16 which he did on November 25th, 1997, for the purpose of forcing
17 me to accept a crooked and phony plea agreement that the
18 government had no intention of honoring.
19 "When you contact Mr. McNall, I want you to identify
20 yourself as who you are, an academic researcher, and your
21 interest in Ryan Lund's case, but don't necessarily bring up
22 your association with me unless he first raises the issue. I
23 think it's highly likely that Mr. McNall will already know of my
24 interest in this case at the time you call him, and I think
25 he'll understand the connection with me even if you don't
307
1 mention it, but he might figure it's better to keep quiet about
2 this and see what happens.
3 "Please ask McNall about Ryan Lund: Why he began
4 investigating him, his criminal record (any drug felonies?), his
5 sentence, ('Why so low?'). Ask him why Lund wasn't immediately
6 arrested at the time of the search, since he was already clearly
7 in violation of drug laws and gun laws. (Lund was only arrested
8 on about October 27, 1997; arrest warrant issued October 23,
9 1997). Ask him, also, under what circumstances he or his
10 colleagues talked to Lund subsequent to that search.
11 "I think this should be done soonest, and this conversation
12 should be recorded if that is possible for you. And I'd like
13 one of you to confirm your intentions to me within a day after
14 this email is sent.
15 "Jim Bell.
16 "Please check the following site for the legality of tape
17 recording telephone and non-telephone communications.
18 Apparently it is legal to do so in both Oregon and DC if only
19 one party to the conversation is aware. OTOH, in Washington
20 state and Massachusetts, all-party consent is required."
21 And the site is http://www.rcfp.org/taping/.
22 Q. Please turn to Exhibit 181.
23 A. It's an email which I retrieved from the same computer.
24 It's from Jim Bell, jimbell@home.com, to John Young,
25 jya@pipeline.com. It's dated November the 2nd, 2000. The
308
1 subject is photography.
2 Q. Is it --
3 MR. LEEN: Number?
4 MR. LONDON: It's 181.
5 Q. (By Mr. London) Does it discuss an upcoming trip to Bend,
6 Oregon, for photography?
7 A. That's correct.
8 MR. LONDON: All right, I'd offer 181.
9 MR. LEEN: No objection.
10 THE COURT: 181 is admitted.
11 (Exhibit No. 181 was admitted.)
12 MR. LONDON: It can be published.
13 Q. (By Mr. London) Mr. Rabatin, if you would just read that
14 email, please.
15 A. "Within the next week or two, I will probably be visiting
16 Bend, Oregon, for photography of various locations, some
17 addresses having appeared recently on CP. I would welcome
18 suggestions from anyone about where and what to photograph. I
19 would be happy to receive those suggestions by anonymous
20 remailer, or anywhere else for that matter.
21 "Jim Bell."
22 Q. Please turn to 182.
23 MR. LEEN: I'm sorry, counsel, number?
24 MR. LONDON: 182.
25 A. It's also an email which I retrieved from the same
309
1 computer. It's email from Jim Bell, jimbell@home.com, to Blanc
2 Weber, blanccw -- blancw@cnw.com, dated November 3rd, 2000.
3 Subject: Re: What your mail looks like.
4 Q. (By Mr. London) Does this also discuss an upcoming
5 photographic trip to Bend, Oregon?
6 A. That's correct.
7 Q. All right.
8 MR. LONDON: I'd offer 182.
9 MR. LEEN: No objection.
10 THE COURT: 182 is admitted.
11 (Exhibit No. 182 was admitted.)
12 Q. (By Mr. London) Okay. Just read the line, "In an hour or
13 so."
14 A. "In an hour or so, I'm going to Bend, Oregon, for a
15 photographic mission. (see some of my recent posts on CP with
16 John Young.)"
17 Q. Do you know what CP is a reference to?
18 A. Cypherpunks.
19 Q. Please turn to 185.
20 A. This also is an email which I retrieved from the same
21 computer. It's from Jim Bell, jimbell@home.com, to
22 cypherpunks@cyberpass.net. It's dated November the 4th, 2000.
23 Subject: CIA in Oregon, Intelink.
24 Q. And does this discuss the Mueller home in Bend, Oregon?
25 A. That's correct.
310
1 MR. LONDON: All right. I offer 185.
2 MR. LEEN: No objection.
3 THE COURT: 185 is admitted.
4 (Exhibit No. 185 was admitted.)
5 Q. (By Mr. London) All right. What is the date of this email?
6 A. November 4th, 2000.
7 Q. All right. And so is that one day after the email that was
8 182, to Blanc Weber, "In an hour or so, I'm going to Bend"?
9 A. That's correct.
10 Q. Can you please read for the jury the paragraph beginning,
11 "This address is a house"?
12 A. "This address is a house in a rather new subdivision in the
13 northern portion of Bend, Oregon. Mapquest actually cannot find
14 this address, and when I look at the actual location (Found with
15 a Pittmon map) the road in question is not even shown yet.
16 Below is a URL which can be fed into Mapquest to retrieve the
17 appropriate (although, admittedly, incomplete) map, pointing to
18 the approximate, correct address of the house."
19 Q. All right. Below down further, "Two vehicles," would you
20 please read that?
21 A. "Two vehicles, Oregon Plates VCV976 and 902ALL are in the
22 driveway."
23 Q. All right. That's it for the exhibits, Mr. Rabatin.
24 I just want to ask you if you can just tell us a little bit,
25 please, about the pathways or the ways that you have of knowing
311
1 who has authored an email apart from any acknowledgment of
2 authorship that maybe in the text of the email itself on a
3 computer that may be more than one person listed on the account,
4 the Internet account --
5 A. Okay.
6 Q. -- has access to.
7 A. Okay. On a lot of the email programs you can set them up to
8 have different personality, what they call personalities.
9 Depending which program you are using, they have different words
10 for it, but you can have it set up for multiple users. And what
11 I did in this case is, when I was looking for a specific email,
12 the path which I have written on the back of each one of the
13 emails basically shows -- it follows a little road map through
14 the computer down to where the email program stores the
15 information.
16 In this instance, there were a number of people -- well,
17 there were -- let me back up.
18 There were a number of profiles, what we call profiles, down
19 there for different users. All of the emails that are retrieved
20 here came from one that was Jim Bell. So normally what would
21 happen is that under each one of these there would be a separate
22 in box, an out box, a sent box, whatever. So usually the person
23 that uses that specific sign-in or personality, that would save
24 all of their emails, would have all the emails that they send
25 out, it would all be there so you could retrieve it in one
312
1 place.
2 It would be the equivalent of you have an email account at
3 home and if you have children or spouse or something and you
4 want to keep your email separate, that's basically what this
5 is. So you have one place for yours and they have another place
6 for theirs.
7 Q. So there were other users in the house who were listed on
8 the account?
9 A. That's correct.
10 Q. And did any of them show up as the points of origin for any
11 of the emails that you discussed here today?
12 A. No. I did a -- excuse me -- a very cursory review of the
13 other mailboxes because I had been informed by the case agent
14 that there's possibility that a different -- you know, that Mr.
15 Bell had used his mother's account. But when I did a cursory
16 review of the other accounts, either they were empty or they
17 could be attributed to email sent by either Mr. Bell's mother or
18 his father.
19 THE COURT: Are you through with direct?
20 MR. LONDON: I am through with direct.
21 THE COURT: Cross-examination.
22 MR. LEEN: Thank you, Your Honor.
23 CROSS-EXAMINATION
24 BY MR. LEEN:
25 Q. Good morning, Mr. Rabatin.
313
1 A. Good morning.
2 Q. The emails that you have gone through this morning and
3 yesterday afternoon, were they taken off one or the three
4 computers?
5 A. The emails were taken off of the one computer that was
6 upstairs and was connected to the Internet.
7 Q. And how did that computer access to Internet?
8 A. Through a modem.
9 Q. Was it -- and that modem was connected to cable or telephone
10 line?
11 A. It appeared -- it appeared to be a cable modem.
12 Q. Do you know, or -- you're the expert, tell us.
13 A. This is a while back. I didn't recall that I took the
14 modem. I believe it was a cable modem.
15 Q. All right. And what about the other computers in the house,
16 were they directed to a cable or to a telephone line?
17 A. All the ones, when I looked at both of them at the time,
18 they weren't connected to anything. It appeared that one --
19 there appeared to be -- appeared to be some sort of a network
20 connection, but they weren't complete, and there was nothing, at
21 the time that I looked, that was connected anywhere.
22 Q. There are different types of modems, aren't there?
23 A. That's correct.
24 Q. Telephone modem is different, distinctly different from a
25 cable modem?
314
1 A. That's correct.
2 Q. Can you tell me the specifications of the computer that you
3 were examining?
4 A. I don't have that with me currently.
5 Q. Now, all of the emails that you have gone through have a
6 date and a time that they were sent.
7 A. That's correct.
8 Q. How is -- how does that date and time get put on the email?
9 Is there something in the computer itself that does that?
10 A. No. That's -- most of that is -- could you please rephrase
11 your --
12 Q. I'm saying, like, for example, one of the emails -- let's --
13 let me just look at an exhibit. 185; just turn to 185.
14 MR. LEEN: Is it possible to put 185 on the monitor?
15 Just the "sent to" portion.
16 AGENT GORDON: I'm sorry, I had trouble publishing
17 that.
18 MR. LEEN: Let me grab another one.
19 AGENT GORDON: Some are better than others.
20 MR. LEEN: Why don't we try 182. Would that be
21 better?
22 AGENT GORDON: Yes.
23 Q. (By Mr. Leen) On the line that says sent, it says, Friday,
24 November 3rd, 2000, 11:23 a.m.
25 A. Yes. Uh-huh.
315
1 Q. How does the -- how does that information get put there? Is
2 it typed in by the sender or --
3 A. No.
4 Q. -- does the computer put that on?
5 A. No. It's altering Curie by the program. And one of the
6 things that you notice here, you have a from, a to, and a send,
7 a subject line. That's basically what you see, but there's also
8 what are known as extender headers which would actually show all
9 of the different hops and skips and jumps that it takes to get
10 to whomever it's being meant to go. So normally what you would
11 -- it says on the software, only if it works on time, like if
12 you are looking here, it would work on the clock on your -- use
13 the clock on your computer.
14 Q. This may sound too simplified, but I can go to my computer
15 and click on the clock down there, the time.
16 A. That's correct.
17 Q. And then if it's a PC, at least, I don't know on an Apple,
18 and it will pop up and I can change the date and I can change
19 the time if want and close it, and then the next time I reboot
20 my computer, my computer will think it's that date I changed it
21 to and that time I changed it to.
22 A. Correct.
23 Q. Did you check the accuracy of the date and the time of the
24 computer?
25 A. Let's see. On the --
316
1 Q. Well, did you -- when you checked the computer, did you see
2 if it actually, when you booted it up -- let's say, for example,
3 if you booted it up right now, it would say April 5th, 10:21
4 a.m.
5 A. Well, possibly if the battery didn't die. The emails came
6 from the computer upstairs, and that was active at the time.
7 And at that time -- excuse me. With checking the computer
8 upstairs, it appeared that the date and time was correct.
9 Q. I'm sorry, so did you do your work on the computer while it
10 was upstairs in the house?
11 A. No, I didn't.
12 Q. So did you -- my question is, did you check at any time to
13 see if the right date and the right time were accurate within at
14 least, you know, a few seconds?
15 A. On that computer, no, I didn't.
16 Q. Okay. Thank you.
17 A. Excuse me one second.
18 MR. LEEN: No further questions.
19 MR. LONDON: Your Honor, could I ask that the witness
20 be permitted to answer the question.
21 THE COURT: Redirect.
22 REDIRECT EXAMINATION
23 BY MR. LONDON:
24 Q. Mr. Rabatin, was it your testimony that before you
25 dismantled that computer to be able to seize it and take it, the
317
1 date and time on the computer appeared to be correct?
2 A. That's correct.
3 MR. LONDON: Thank you. Nothing further.
4 THE COURT: Recross.
5 MR. LEEN: No questions.
6 THE COURT: The witness may be excused.
7 (Witness excused.)
8 THE COURT: Next witness.
9 MR. LONDON: Call Barbara Gordon.
10 BARBARA J. GORDON, PLAINTIFF'S WITNESS, SWORN
11 THE CLERK: Please state your full name and spell your
12 last name.
13 THE WITNESS: Barbara J. Gordon. G-o-r-d-o-n.
14 DIRECT EXAMINATION
15 BY MR. LONDON:
16 Q. Mrs. Gordon, good morning.
17 Could you begin, please, by telling the jury where you
18 live? You don't have to tell us your address, but just the
19 geographical area where you live.
20 A. Tualatin, Oregon.
21 Q. And did you live at 8300 Southwest Chelan in Tualatin,
22 Oregon, last October?
23 A. Yes.
24 Q. Do you have a husband named Jeffrey Gordon?
25 A. Yes, I do.
318
1 Q. Is he the same Jeffrey Gordon who is a special agent for the
2 Treasury Department?
3 A. No, he is not.
4 Q. What does your husband do?
5 A. My husband is a traffic manager for a company in Tualatin.
6 Q. Is he here in the courtroom today?
7 A. Yes.
8 Q. Can you point out your husband for the jury, please.
9 (A gentleman in the back of the courtroom raises his hand.)
10 MR. LONDON: Thank you.
11 A. That's him.
12 Q. (By Mr. London) I would like you to look at some exhibits
13 that are going to be put up on the screen in front of you. If
14 you have any problem making out anything on the screen, there
15 are hard copies of the exhibits in the notebooks to your right
16 and you can look at them there.
17 I would like you to look at Exhibit 137(a) which has three
18 pages that are noted 27, 28, and 29. And looking first at page
19 27 of 137(a), I want to ask you if you see any personal
20 information about yourself or your family that you are able to
21 recognize?
22 A. The first item here that I see is 24289 Southeast Filbert
23 Road in Eagle Creek, Oregon. That was our address about six
24 years ago.
25 Q. All right. Do you see anything else in this part of the
319
1 exhibit that you recognize?
2 Can you make out "next door"?
3 A. Oh. I'm not familiar with the name.
4 Q. Okay. All right. Can you please turn to page 28 of Exhibit
5 137.
6 MR. LONDON: All right. This has been admitted, so I'd
7 ask that this be published for the jury as well.
8 Q. (By Mr. London) Do you see any information there in these
9 handwritten entries in this notebook that you recognize?
10 A. Yeah, the whole first part. Jeff and Barbara Gordon,
11 Allstate Insurance. Our address at 8300 Southwest Chelan
12 Street.
13 Q. All right. And there's a reference there to Allstate
14 Insurance.
15 A. Uh-huh.
16 Q. What does that mean to you?
17 A. We have homeowners insurance and car insurance through
18 Allstate. The agent listed, Todd Rettman, he is our agent.
19 Q. All right. And does that look like his phone number?
20 A. Yes. Um-hmm.
21 Q. Okay. Did you ever share any of this information with James
22 Dalton Bell?
23 A. No.
24 Q. Have you shared this information with anyone other than your
25 husband or, in this case, your Allstate agent?
320
1 A. No.
2 Q. Do you see where it refers to an auto policy for a '74 GMC
3 truck?
4 A. Yes. We still own that truck.
5 Q. And a Chevy Spartan.
6 A. Sport van.
7 Q. Sport van, excuse me.
8 A. Uh-huh.
9 Q. A '97 Corolla.
10 A. Yes.
11 Q. Are those your vehicles?
12 A. All of them are, yes.
13 Q. Do you keep your vehicles parked near your property in a
14 place where they could be observable in the street?
15 A. We normally kept the Corolla and the van in the garage and
16 the truck parked next to the house behind a closed gate.
17 Q. Is the Allstate policy information here, does that
18 correspond to any of these vehicles?
19 A. Yes. That's the policy for all of those vehicles.
20 Q. All three of them?
21 A. Uh-huh.
22 Q. All right. If you look at a little bit lower down, there's
23 a reference to Blue Cross Blue Shield of Alabama. Do you
24 recognize any of that information?
25 A. Yeah. Blue Cross Blue Shield of Alabama is our health
321
1 insurance provider.
2 Q. And does that cover you?
3 A. That covers myself and my husband, Jeff, and both our
4 children.
5 Q. All right. Do you have a son named Joshua?
6 A. Yes, I do.
7 Q. And have you had to submit any Blue Cross Blue Shield claims
8 in recent months for your son Joshua?
9 A. Yeah, he's had a couple of different appointments with his
10 doctor.
11 Q. All right. Does this information appear to be accurate
12 claims information with regard to any claims that you have
13 submitted or that have been submitted on your behalf to Blue
14 Cross Blue Shield of Alabama --
15 A. A --
16 Q. -- either for any medical visits that you have made or that
17 your son Joshua has made?
18 A. The one that I'm seeing right here actually looks like my
19 husband's doctor.
20 Q. Please turn to 29.
21 Okay. Is your son Joshua J. Gordon?
22 A. Yes. And this is his -- it looks like a claims EOB
23 information explanation benefits for an appointment that he had
24 with his doctor to have a wart removed.
25 Q. Now, were you expecting to receive your claims information
322
1 in the mail in October of 2000?
2 A. We normally -- we normally always get it in the mail.
3 Sometimes it could take maybe three weeks. But, yeah, we would
4 get that.
5 Q. And did you correspond with Blue Cross Blue Shield of
6 Alabama using your 8300 Southwest Chelan address in Tualatin?
7 A. Yes.
8 Q. Where is the mail delivered at that address? Is it to a
9 mailbox?
10 A. Yeah. There's a mailbox, and just in front of the house.
11 Q. Out by the road?
12 A. Yes.
13 Q. Did you ever receive your claim in October for these visits,
14 Joshua's visit? Did you ever receive it?
15 A. No, I did not.
16 Q. But you had received, perhaps, prior claim reports from Blue
17 Cross Blue Shield of Alabama for other visits?
18 A. Yes. For Joshua and for all of us.
19 Q. Is it your practice to throw away that information in the
20 garbage that's put out on the street when you are done with it?
21 A. No. I would keep all claims information. I keep them so I
22 can cross-reference to doctor bills that come in afterwards.
23 Q. And anything you don't keep, what do you do with it?
24 A. I burn it. I burn all of our information that's left over
25 from paying bills or any other, just for safety.
323
1 Q. All right. Now, after you were notified that this
2 information had been found in a notebook taken from the
3 defendant's residence in this case, did you take any steps to
4 change your mailing address with regard to Blue Cross Blue
5 Shield of Alabama, correspondence or anything else?
6 A. I had to call Blue Cross Blue Shield and ask them to send me
7 a copy of that explanation of benefits because I hadn't gotten
8 it, and I asked them to send it to our new P.O. box address
9 which we had just gotten.
10 Q. What was that P.O. box?
11 A. P.O. Box 1209, Tualatin, Oregon 97062.
12 Q. All right. Have you ever taken any of this personal
13 information about yourself and included it in email
14 correspondence that might have traveled on the Internet?
15 A. No.
16 Q. All right. I would like to ask that you be shown Exhibit
17 105.
18 MR. LONDON: And these can be published to the jury as
19 well. Any that have been admitted can be published.
20 Q. (By Mr. London) Mrs. Gordon, can you look at Exhibit 105
21 and tell us if you recognize anything on this printout?
22 A. It looks like about the seventh person listed down, Jeffrey
23 Phillip Gordon, 24289 Southeast Filbert Road, Eagle Creek. That
24 is our old address and my husband's name.
25 Q. Let me show you Exhibit 128. Can you make out anything
324
1 there that looks familiar to you as well?
2 A. The third line listed says Jeffrey Phillip Gordon, 24289
3 Southeast Filbert Road, Eagle Creek. That's also my husband and
4 our old address. It looks like -- I'm not sure what the rest of
5 it is.
6 Q. Will you please look at Exhibit 200.
7 Can you make out anything on 200, or do you need to look at
8 the hard copy of that?
9 A. I might be able to make it out. Just a second here.
10 Q. The third reference contains a reference to Southeast
11 Filbert. Does that appear to be information about you?
12 A. Oh, yeah. I see, umm -- actually, it looks like my
13 husband's birth date is listed there and also my name, my birth
14 date, and our address in Eagle Creek.
15 Q. All right. It refers to a Barbi Gordon. Do you go by
16 Barbi?
17 A. Yes. And it's spelled like that, too.
18 MR. LONDON: Can the witness be shown 201.
19 Q. (By Mr. London) Anything on this one that you can
20 recognize?
21 A. The third entry there also says Jeffrey Phillip Gordon --
22 that's my husband -- and our address in Eagle Creek.
23 MR. LONDON: 203, please.
24 Q. (By Mr. London) Do you see anything on 203 on this computer
25 printout that looks familiar to you?
325
1 A. I can't read what's right up on the top. I don't know if
2 you can bring that down a little bit.
3 I see it says 8300 Southwest Chelan is where Jeff and Barbi
4 Gordons' vehicle -- and it was our old vehicle at the time --
5 the license plate number, and it says, "becomes registered in
6 1997."
7 And then below that where it says Abram Tabakov, those are
8 the people who lived in our house before we did on 8300
9 Southwest Chelan Street.
10 Q. SAV794, was that your license plate tab?
11 A. Yeah. Yes.
12 Q. Let's look at 204, please. Is that you?
13 A. Yes, that's my name. That's our license number. It looks
14 like even maybe the vin number for our Toyota and Jeffrey's name
15 and our -- it says "New address for SAV794 car." And it's our
16 address on 8300 Southwest Chelan Street.
17 Q. All right. So in 1997, did you change your address from
18 Eagle Creek to Tualatin?
19 A. I'm trying to think when we moved. Yeah. It was actually,
20 we had moved already, but we were probably late on changing the
21 DMV records. But, yes. We did change it.
22 Q. All right. Other than yourself, do you see any reference in
23 this printout to any other Gordons or anybody else there?
24 A. Well, it shows Jeffrey P. Gordon. That's my husband.
25 Q. Other than you and your husband.
326
1 A. No.
2 Q. Okay. Please go to 205.
3 On this one, with the handwritten header "Year 1994
4 Vehicle," do you see anything about yourself or your husband or
5 any of your cars?
6 A. Yeah. There's an entry down towards the bottom. It says
7 SAV794 Toyota, and that's the identification number for the
8 Toyota. And Jeffrey Gordon and Barbara Gordon and our Eagle
9 Creek address.
10 Q. Please look at 207.
11 Anything there in 207 about you or your husband?
12 A. The third line down. Jeffrey Phillip Gordon, 8300 Southwest
13 Chelan Street in Tualatin, that's ours. That was our old
14 address.
15 Q. 208.
16 A. It looks like the seventh line down, Jeffrey Phillip Gordon,
17 24289 Southeast Filbert Road, Eagle Creek. That was our old
18 address.
19 Q. 209, finally, please.
20 A. It looks like the fourth line down shows SAV794 -- that's
21 our Toyota's license plate number -- and it says Jeffrey
22 Gordon.
23 Q. Are you employed?
24 A. Yes.
25 Q. Is your husband employed?
327
1 A. Yes.
2 Q. What time do you get home typically at the end of the day?
3 A. His schedule and my schedule vary quite a bit. At the time
4 I was working, going into work at about 2:00 in the morning, and
5 I would get off by 2:30 or so in the afternoon to pick up the
6 kids. He would typically not get home until maybe 5:00 or
7 sometimes even 6:00. It just depended on the workload and the
8 day.
9 Q. So is there a typical time when mail is delivered to your
10 house?
11 A. I'm thinking it was around noon or so, or 1:00 in the
12 afternoon.
13 Q. So is there a window of opportunity between the time when
14 you -- when the mail is delivered and the time when the first
15 adult comes home where the mail is left out in the box?
16 A. Yeah. We were also frequently guilty of leaving it in there
17 overnight or for a couple of days just because our schedules are
18 so busy.
19 MR. LONDON: Nothing further of this witness, Your
20 Honor.
21 THE COURT: Cross-examination.
22 CROSS-EXAMINATION
23 BY MR. LEEN:
24 Q. Good morning, Ms. Gordon.
25 A. Hi.
328
1 Q. Ms. Gordon, do you know this individual seated over here in
2 the blue shirt?
3 A. Only by a picture.
4 Q. And how do you know -- who showed you the picture?
5 A. Jeff Gordon, the agent.
6 Q. Not your husband Jeff Gordon, but this Jeff Gordon over
7 here?
8 A. Yes.
9 Q. And when did he show it to you?
10 A. I don't know the date, but it was sometime after we were
11 notified that someone had information on us.
12 Q. And do you recall approximately what time you were --
13 approximately what month of what year you were notified?
14 A. I'm guessing it was the beginning of November sometime.
15 Q. Were you -- to your knowledge, was there -- prior to you
16 being advised that someone had information about you and your
17 husband and at least one of your children, and were you aware
18 that anyone had -- did you think anyone had stolen anything from
19 your property or had trespassed on your property?
20 A. No. I wasn't aware of anything.
21 Q. And you burn your mail when you are done with it?
22 A. We have a wood stove, and so that was my practice, to burn
23 -- even after I paid the bills, I normally burn the leftover
24 statements and whatever.
25 Q. For privacy purposes?
329
1 A. Yes.
2 MR. LEEN: No further questions.
3 THE COURT: Redirect.
4 MR. LONDON: No, Your Honor.
5 THE COURT: The witness is excused.
6 (Witness excused.)
7 THE COURT: Next.
8 ROBERT DUTRA, PLAINTIFF'S WITNESS, SWORN
9 THE CLERK: Please be seated.
10 Please state your full name and spell your last name.
11 THE WITNESS: Robert Dutra. D-u-t-r-a.
12 DIRECT EXAMINATION
13 BY MR. LONDON:
14 Q. Sir, good morning. Could you please tell us how you are
15 employed?
16 A. With the United States Marshals Service.
17 Q. Are you a Deputy United States Marshal?
18 A. I'm a detention enforcement officer.
19 Q. In that capacity, are you involved in the booking process or
20 taking fingerprints from people who have been charged and are
21 now in the criminal justice system federally?
22 A. Yes, I am.
23 Q. Have you brought with you today the original Exhibit 240, a
24 ten-print card that would have been rolled fingerprints taken by
25 you of defendant?
330
1 A. Yes, I have.
2 Q. All right. When did you take these fingerprints from the
3 defendant?
4 A. These fingerprints were taken on the 20th of November, year
5 2000. It would have been the day that the defendant was brought
6 before us to be processed.
7 Q. Do you remember specifically taking these fingerprints?
8 A. Yes, I do.
9 Q. Can you identify the person that you took the fingerprints
10 from?
11 A. It was taken of Mr. Bell, the individual seated over at the
12 far left-hand corner table, light blue shirt, dark blue pants.
13 Q. And what procedure did you use for rolling these prints?
14 A. I used the standard FBI fingerprint card, placed it within a
15 holder, had the defendant before me using black ink, rolling
16 them individually across through each of the sections. Mr. Bell
17 was also directed to sign the fingerprint card on the front and
18 then on the rear. On the backside, I signed it with the date.
19 Q. All right. And does a deputy number or anything for you
20 also appear on that?
21 A. On this one here is simply my, my signature, and the date of
22 bir- -- and the date it was taken.
23 Q. Okay. So you did this the old fashion way, you actually
24 rolled the fingerprints?
25 A. Correct.
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1 Q. You didn't use the live scan computer --
2 A. No, I did not.
3 MR. LONDON: All right. I offer 240.
4 MR. LEEN: No objection.
5 THE COURT: 240 is admitted.
6 (Exhibit No. 240 was admitted.)
7 MR. LONDON: All right.
8 MR. LEEN: No questions.
9 THE COURT: The witness may be excused.
10 (Witness excused.)
11 THE COURT: Next witness, please.
12 MR. LONDON: Call Susan White.
13 SUSAN C. WHITE, PLAINTIFF'S WITNESS, SWORN
14 THE CLERK: Please be seated.
15 Please state your full name and spell your last name.
16 THE WITNESS: Susan C. White. W-h-i-t-e.
17 DIRECT EXAMINATION
18 BY MR. LONDON:
19 Q. Ms. White, good morning. Can you begin, please, by telling
20 the jury how you are employed?
21 A. I'm a senior fingerprint specialist for the Treasury
22 Inspection General, Tax Administration, Forensic Laboratory.
23 Q. Can you briefly describe the nature of your work?
24 A. I receive cases and I process evidence to identify latent
25 prints and suspect's prints in order to compare and report as to
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1 my findings.
2 Q. All right. And how much of your duty time is devoted to
3 that kind of work?
4 A. Ninety percent of my duty time is devoted to latent
5 development and comparison, and about ten percent is research.
6 Q. How long have you been doing this work?
7 A. Twenty-one years.
8 Q. What study and preparation have you undergone for this work?
9 A. I received my initial training in the science of
10 fingerprints through the Federal Bureau of Investigation where I
11 was employed for eight years, and since working for the Federal
12 Bureau of Investigation I have worked for two other local
13 agencies, as well as back to federal government.
14 Q. And have you made continuous study to keep up with any new
15 techniques in the field?
16 A. Yes, I have. I belong to three forensic groups, and I'm a
17 certified latent print examiner through the International
18 Association for Identification.
19 Q. What kind of technical equipment is available to you in your
20 work as a fingerprint examiner?
21 A. We have state-of-the-art equipment. Although our forensic
22 capabilities are first class, we have the digital imagery setup
23 that can't be -- there's no comparison in this country.
24 Q. All right. And have you actually had occasion to identify
25 people by comparing what we call latent fingerprints or
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1 palmprints with their known or recorded fingerprints or
2 palmprints?
3 A. Yes, I have.
4 Q. Can you approximate how many times you have had to do that?
5 A. Hundreds of thousands of times.
6 Q. Have you had occasion to qualify as an expert witness in
7 federal courts as a fingerprint examiner?
8 A. Yes, I have.
9 Q. How many times?
10 A. In excess of five times in federal court, and in excess of
11 forty times in local and state courts.
12 Q. All right.
13 MR. LONDON: Your Honor, I do ask at this time that the
14 witness be qualified as an expert under Rule 72.
15 THE COURT: Any voir dire of the witness?
16 MR. LEEN: No, Your Honor. We will stipulate --
17 THE COURT: The witness may testify as an expert.
18 Q. (By Mr. London) Will you tell the jury a little bit,
19 please, what an inked or known print is?
20 A. An inked or known print is the intentional recorded
21 fingerprint, finger or the underside of the palm, the raised
22 ridges on the underside of the fingers and the palms. This is
23 usually done by applying a thin film of ink and transferring it
24 on to a contrasting surface. This can also be done
25 electronically by scanning the ridge detail on the underside of
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1 the fingers or the palms.
2 Q. What is a latent print?
3 A. A latent print is the unintentional leaving behind of a
4 fingerprint. And this is done by the residue that's on the
5 ridges, the surface of the fingers, and the palmprint. When you
6 touch a surface you leave behind that residue, or there's
7 sometimes residue on the surface and you can leave the
8 impression of the ridge detail behind on the surface.
9 Q. Are there different distinguishing characteristics of
10 fingerprints or palmprints?
11 A. There are four basic characteristics that are used for
12 comparison as far as latent prints, and that would be a ridge
13 that comes up and ends, a ridge that divides into two or more
14 ridges, something that appears as a dot or an island or an
15 enclosure.
16 Q. And using these characteristics as a guide, how do you
17 actually compare latent fingerprints to known prints?
18 A. You actually take the individual characteristics, which
19 would be the four basics, and there's variations of those four
20 basic characteristics, and you add one onto the other until you
21 have determined that they were left by one and the same
22 individual, the fingerprint. If you were to find an ending
23 ridge and count, say, two ridges, find another ending ridge,
24 count down three ridges, find an island or enclosure, and so on
25 and so on, until you determine that they were made by one and
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1 the same fingerprint.
2 Q. All right. And as you start to match up points of
3 comparison, at what point or after how many points of comparison
4 do you safely feel that you have a match?
5 A. There's no set number and there's no set number used in this
6 country. The smallest number of fingerprints I have --
7 characteristics I have ever used to effect an identification is
8 seven points. That's also the smallest number ever testified to
9 in this country.
10 Q. Based on your training and your experience, have you ever
11 known or even heard of two persons, two different people, having
12 identical fingerprints?
13 A. No, I have not.
14 Q. And would that even include genetically identical twins?
15 A. That's true. Genetically identical twins can have
16 fingerprint patterns that are very similar and you actually have
17 to put a magnifier on and look closely to determine that there
18 is information that is different. There's two different things
19 when you are talking about fingerprints. There's classification
20 and there's comparison. You need the entire tip of the finger
21 in order to make a class- -- for a classification, and those
22 basic classifications are loops, arches, and whirls. With
23 twins, they could be very similar. But to actually look at the
24 little ridge detail, they are different.
25 Q. Now, will you please look at Exhibit 240 in this. There is
336
1 a ten-print card. Have you had an opportunity to examine
2 Exhibit 240, the fingerprints on it?
3 A. Yes, I have.
4 Q. Can you please look at Exhibit 137, the spiral notebook
5 that's going to be in the corresponding exhibit binder to your
6 right there.
7 A. Exhibit 137 is a spiral notebook that I reviewed in my
8 office. It's marked page 27 of the spiral notebook.
9 Q. All right. Now, 27, on pages 27, 28, and 29 of that spiral
10 notebook, did you apply any kind of chemicals in the search for
11 latent fingerprints?
12 A. Yes, I did. The most commonly used chemical for processing
13 porous items, which would be a paper item such as the notebook,
14 is Ninhydrin, and it reacts with the salt and acids present in
15 your perspiration. It also turns the paper items purple and
16 develops the prints in purple.
17 Q. Did you have a careful opportunity to look at those three
18 pages of the spiral notebook before you applied the chemical?
19 A. Yes, I did.
20 Q. All right. Please turn to Exhibit 137A, which is a
21 photocopy of those pages before you applied the chemical.
22 A. That's correct.
23 137A is a photocopy of the paper before it was processed
24 with the chemical Ninhydrin, Ninhydrin crystals that I actually
25 suspend in a solution of petroleum ether, and the petroleum
337
1 ether has a tendency to ruin the ink or to make the ink run, and
2 in this case, we photograph all evidence before we process.
3 Q. So 137A are those three pages of 27, 28, and 29. Are those
4 accurate photocopies of what those three pages looked like in
5 terms of the text and handwriting, etc., before you applied the
6 solution for the purpose of undertaking fingerprint analysis?
7 A. Yes, they are photocopies prior to the processing.
8 MR. LONDON: I offer 137A.
9 MR. LEEN: No objection.
10 THE COURT: 137A is admitted.
11 (Exhibit No. 137A was admitted.)
12 Q. (By Mr. London) Now, please describe the process you use in
13 applying that chemical and trying to see if latent prints could
14 be recovered from any of those pages.
15 A. In the request to process the notebook, the request was to
16 only process the pages that actually had the writing or
17 handprinting on the pages. The easiest way to do that is to dip
18 the solution. It can either be sprayed, it can be painted on,
19 or in this case it was dipped on. I fill a tray up with
20 Ninhydrin chemicals and the petroleum ether, and then I dip each
21 page individually without removing them from the spiral
22 notebook.
23 After the Ninhydrin is allowed to adhere to the surface, the
24 petroleum ether dissipates. Once it dissipates, we put it in
25 the humidity chamber so it will bring up the prints, the heat or
338
1 humidity will raise the purple fingerprints that you see now.
2 Q. And what was the result of applying the chemicals and going
3 through the process you just described?
4 A. I developed fingerprints on -- let's see, the notebook.
5 There were 28 pages, including the front and back cover of
6 the notebook that were processed. Of the 28 pages, including
7 the front and back that have writing, nine did not -- there were
8 no latent prints of value for comparison purposes developed.
9 The other pages all had fingerprints of value for comparison.
10 Q. With respect to pages 27, 28, and 29 of the notebook, did
11 you recover latent prints that were of comparative value on
12 those pages?
13 A. Yes, I did.
14 Q. And did you have an opportunity to compare those prints that
15 you recovered on those pages to the ten-print card that's
16 Exhibit 240 that was taken by the U.S. marshal of the defendant?
17 A. I compared the known prints with the prints that I received
18 from the U.S. marshal to determine that it was one and the same
19 individual. The known print card that I used for my comparison,
20 I did compare Exhibits 27, 28 and 29.
21 Q. Were those pages of Exhibit 137; 27, 28 --
22 A. Yes.
23 Q. And did you say that you did make a finding that they were
24 made by one and the same individual?
25 A. The -- I developed latent prints on these pages. If I could
339
1 refer to my notes, I will determine whether there were latent
2 prints that I identified.
3 Q. Let me ask you this just for the sake of saving some time.
4 Did you find anybody else's prints other than the ident- -- the
5 individual who was identified by you as a match to the known
6 print?
7 A. No, I did not.
8 Q. All right. Let's do it that way.
9 Please turn to Exhibit 171.
10 A. 171.
11 Q. It's a fax cover sheet.
12 A. Yes. The fax cover sheet is still in the same evidence
13 folder that I sealed it in with my handwritten notes.
14 Q. All right. Now, did you have an opportunity to test Exhibit
15 171, the fax cover sheet, for latent prints?
16 A. Yes, I did. It was also processed for latent prints, and
17 there was one latent print processed of value for comparison
18 purposes. In other words, it had enough information to do the
19 comparison with the known prints. And I did identify the one
20 print as being a fingerprint of James Dalton Bell.
21 Q. From the known -- from the known print?
22 A. Yes.
23 Q. Please turn to Exhibit 226. Actually, there are three I'm
24 going to ask you to look at in succession, 226, 227, and 228.
25 A. Exhibit 226?
340
1 Q. Yes.
2 A. Exhibit 226 is also in the same sealed envelope that it came
3 from my forensic laboratory. It's thermal paper. It was also
4 processed with Ninhydrin. Sometimes thermal paper has a
5 tendency to react. The petroleum ether tears away the layers
6 and it becomes black.
7 Q. Were these three Xerox copies of the note that you were
8 given to test for prints? Or three copies of the same
9 handwritten note?
10 A. Yes, they were.
11 Q. All right. Please look at 226A, 227A, and 228A. These
12 would be photocopies of those exhibits before you were asked to
13 apply the solution, is that correct?
14 A. That's correct.
15 Q. In looking at the A version, or the preprocessing version of
16 those, do those appear to be accurate photocopies of the
17 original notes that you were asked to test for prints?
18 A. Yes, they do.
19 Q. All right. So the text in those notes is as it would have
20 appeared when it was given to you?
21 A. Yes.
22 Q. All right. And when you applied the chemical solutions to
23 the originals you were asked to test, did it also have an effect
24 on the ink and did it degrade the image?
25 A. Yes, it did.
341
1 Q. Can you please -- all right.
2 A. It actually shows the indentation of the original writing,
3 but the writing itself is deteriorated because of the petroleum
4 ether.
5 Q. Were you able to develop any latent prints from the
6 originals, 226, 227, and 228?
7 A. No, I was not.
8 MR. LONDON: All right. Thank you.
9 THE COURT: Cross-examination.
10 MR. LEEN: No questions.
11 THE COURT: The witness may be excused.
12 (Witness excused.)
13 THE COURT: It's time to take the recess. We will take
14 a 15-minute recess. Please do not discuss the case among
15 yourself or with anyone during the recess. Please go to the
16 jury room.
17 THE COURT: Anything to take up?
18 MR. LEEN: There is one thing, Your Honor. Maybe we
19 could do it when we come back, but I wanted -- the government, I
20 think, wants to introduce a newspaper article which I think is
21 -- should be deemed inadmissible. But the court will have to
22 look at the article first.
23 THE COURT: Well, let me look at it.
24 THE CLERK: Is it marked?
25 MR. LEEN: Yes. Plaintiff's 277.
342
1 THE CLERK: 277.
2 MR. LEEN: 277.
3 THE COURT: Government?
4 MR. LEEN: Well, Your Honor, there was widespread
5 publicity several years ago about Sarin which is the reason why
6 so many people do know it to be a deadly nerve agent and are
7 afraid of it, and I wanted to offer that as a
8 self-authenticating document as a newspaper article as example
9 of some of the publicity that Sarin received at the time.
10 THE COURT: What's the purpose?
11 MR. LONDON: Your Honor, the victims, named victims in
12 this case were particularly afraid of this individual because of
13 his propensity to play with chemicals and the fact that he had
14 admitted synthesizing Sarin, and that was particularly
15 frightening to them. And I just wanted to be able to
16 corroborate --
17 THE COURT: Well, they can say so, can't they?
18 MR. LONDON: They can. I just wanted to make sure I
19 had some corroborative evidence to be able to offer.
20 THE COURT: Why do you need corroborative evidence?
21 MR. LONDON: Well, they relied -- many -- some of the
22 witnesses relied on press accounts as the basis for their
23 knowledge of what Sarin is. I simply had that --
24 THE COURT: Can't they -- are they going to testify to
25 that?
343
1 MR. LONDON: Yes.
2 THE COURT: Well?
3 MR. LONDON: All right. Then we won't offer the
4 exhibit, Your Honor.
5 THE COURT: At least at this time.
6 MR. LONDON: Not at this time.
7 THE COURT: All right. Fifteen-minute recess.
8 (Recessed at 11:05 a.m.)
9 (Jury not present; 11:30 a.m.)
10 THE COURT: Anything to take up before the jury?
11 MR. LONDON: Yes, Your Honor. There are several
12 matters to take up before the jury is brought back.
13 THE COURT: All right.
14 MR. LONDON: First, it has been brought to my attention
15 by one of the witnesses who's testified in this case, Mr. Young,
16 who has been present in court since he testified, that he has
17 been able to download from the court's pacer computer system
18 much of the court file to the extent that it's available on
19 pacer, but in particular, what is docket number 133, which is
20 the names and addresses of the members of our jury. Mr. Young
21 is asking me to request of the court clarification of the scope
22 of the court's order yesterday afternoon sealing the court file
23 in this case until further order of this court. And if there
24 are any questions that he wishes to ask the court in that
25 regard, I can certainly invite him to address the court
344
1 directly.
2 THE COURT: I don't want to hear from him. All I'm
3 saying is this whole file is sealed until the end of this case,
4 which will be when the jury returns a verdict. Then it's
5 available to anybody in the clerk's office.
6 MR. LONDON: I guess a question --
7 THE COURT: Which includes the jury list.
8 MR. LONDON: I guess the question that I have in my
9 mind is, it's one thing to order that it be sealed, but
10 apparently people are having no problems getting access to it
11 electronically, and I think Mr. Young wants to know what the
12 consequences would be of putting up on the Internet anything
13 that he has downloaded from this court's computer system.
14 THE COURT: That's not up to me.
15 MR. YOUNG: I'm sorry, I didn't hear what the judge
16 said.
17 MR. LONDON: He said it was not up to him.
18 MR. YOUNG: Okay. Thank you.
19 THE COURT: Anything else?
20 MR. LONDON: Yes, Your Honor. It's quite possible that
21 in the time before the lunch break the government is going to
22 play and offer exhibits that involve the use of the tracking
23 device that was put on the defendant's car. In the discovery
24 phase of this case, the defendant's attorney demanded to know
25 all of the technical specifications and all of the information,
345
1 how the tracking device was installed, where in his car
2 precisely it was installed. We have filed a motion in limine in
3 our trial brief, Your Honor, in which we ask that that
4 information be not disclosed. I have cited the authorities in
5 the brief for why there is law enforcement privilege for that
6 kind of information, and I believe that this kind of tracking
7 device falls squarely within the privilege.
8 As the court is probably aware, law enforcement is permitted
9 to conceal certain investigative techniques and tools so that
10 they are not compromised in other law enforcement
11 investigations.
12 THE COURT: Mr. Leen, why do you need that
13 information?
14 MR. LEEN: That information -- I haven't requested that
15 information, Your Honor. I didn't intend to question on where
16 it was placed. The only question about the tracking device
17 would be its reliability and how accurate it is. Specifically,
18 whether it's ac- -- military grade or whether it's commercial
19 grade.
20 THE COURT: What's privileged about that, counsel?
21 MR. LONDON: Your Honor, we actually expect the witness
22 to be able to testify that he tested the accuracy of the
23 equipment using other equipment, and in fact we have additional
24 witnesses who will also verify its accuracy should that become
25 necessary. So my view is there's nothing privileged about
346
1 the -- there's nothing off limits about his delving into the
2 accuracy of the equipment on cross-examination, Your Honor, and
3 I'm perfectly happy to establish it in direct examination. I
4 just don't want the witness to be asked to disclose the
5 technical specifications, and, in particular, how it was rigged
6 to the car and to what part of the car it was rigged up, because
7 at that point it enables people like Mr. Bell or others in the
8 future to dismantle -- to find them and dismantle those devices
9 in other cases.
10 THE COURT: So what am I supposed to say now?
11 MR. LONDON: Well, I raise it before the jury --
12 THE COURT: You raised it. He says he isn't going to
13 raise it.
14 MR. LONDON: Well, if he's not going to raise it, then
15 I will let it stand at that. I was led to believe by the
16 pretrial filings, of Mr. Bell's in particular, things he filed
17 himself, that there was a demand for that information, and
18 that's why I raise it.
19 THE COURT: Are we ready for the next witness?
20 MR. LONDON: We are, Your Honor.
21 THE COURT: All right. Bring the jury.
22 (Jury present; 11:36 a.m.)
23 THE COURT: All right. Let the record reflect all
24 members of the jury are present again.
25 Next witness, counsel.
347
1 MR. LONDON: Yes. The government would call Kristie
2 Hanley.
3 KRISTIE HANLEY, PLAINTIFF'S WITNESS, SWORN
4 THE CLERK: Please be seated.
5 Please state your full name and spell your last name.
6 THE WITNESS: Kristie Hanley. H-a-n-l-e-y.
7 DIRECT EXAMINATION
8 BY MR. LONDON:
9 Q. (By Mr. London) Ms. Hanley, good morning. I want to ask
10 you if you can begin by just telling the jury how you are
11 employed?
12 A. I work for a long distance company called Uni-Tel
13 Communications. I'm the office manager.
14 Q. Is that a telephone service provider?
15 A. Yes, sir.
16 Q. Is it a long distance service provider, particularly?
17 A. Yes, sir.
18 Q. Do you work for Uni-Tel as a, what we call, custodian of
19 records?
20 A. Yes.
21 Q. What does that mean?
22 A. It depends on what -- I don't really understand your
23 question, I'm sorry.
24 Q. Is it the practice of Uni-Tel to keep records in the
25 ordinary course of business on the various telephone accounts it
348
1 has with customers?
2 A. Yes, sir.
3 Q. By its service. Okay. As a custodian of records, are you
4 routinely required to furnish law enforcement, either pursuant
5 to subpoena, grand jury or otherwise, telephone records,
6 subscriber information, account information, telephone toll
7 records for particular accounts?
8 A. Yes, sir.
9 Q. And do you testify as to the validity or the accuracy of the
10 account information that you provide under subpoena?
11 A. Yes, sir.
12 Q. All right. Now, were you asked as part of this case to
13 furnish the government with telephone account record information
14 for a telephone number 630 -- excuse me; I'm sorry -- for an
15 address at 7214 Corregidor in Vancouver, Washington?
16 A. Yes, sir.
17 Q. Was that for the months, essentially, May through September
18 of 2000?
19 A. I believe so, yes.
20 Q. Did you furnish the government with statements of the
21 telephone records for that account?
22 A. Yes, I did.
23 Q. For those -- for those months. All right. Thank you.
24 Please turn, if you would, to Exhibit 172 in the binder that
25 would be to your right. It's broken up by the exhibit numbers.
349
1 Find the one with 172 in it.
2 A. Okay.
3 Q. All right. What does Exhibit 172 appear to you to be?
4 A. It looks like the phone bills that we provided to the office
5 for Sam Bell.
6 Q. For Sam Bell?
7 A. Yes.
8 Q. All right. And at what address, please?
9 A. 7214 C-o-r-r-e-g-i-d-o-r.
10 Q. Okay.
11 A. Vancouver, Washington.
12 Q. All right. And can you tell from this invoice or account
13 summary what the telephone number is for this subscriber, Sam
14 Bell?
15 A. Can I pull it out?
16 Q. Yes, please.
17 A. The phone number is (360) 696-4308.
18 Q. All right. And as far as you are aware, is the information
19 here that's printed out with regard to the origination of calls
20 and the numbers that are dialed by the telephone that has the
21 number that you just read out, the account subscriber's number,
22 is that information accurate?
23 A. Yes, sir.
24 Q. How was that data captured?
25 A. What happens is the call originates, that phone is put
350
1 through a switch, and then the call goes to the long distance
2 carrier. They send us the call records with the originating
3 phone number, the terminating phone number, the time and the
4 date of the phone call.
5 Q. All right. So that is captured, what, on a computer system
6 of some kind and then summarized and sent to the subscriber in
7 the form of a bill?
8 A. It's sent to us through our electronic exchange file which
9 we then convert into our billing software which prints out the
10 bill.
11 Q. All right. Do you have any reason to doubt the accuracy of
12 the capture of that information and the way it's summarized and
13 returned to you?
14 A. No.
15 Q. All right. Will you please --
16 MR. LONDON: In fact, we offer Exhibit 172.
17 MR. LEEN: No objection.
18 THE COURT: 172 is admitted.
19 (Exhibit No. 172 was admitted.)
20 Q. (By Mr. London) I'm going to ask you if you can look in
21 fairly quick fashion at Exhibit 173?
22 A. Yes.
23 Q. And tell us if that also appears to be an invoice for the
24 month of June, or a June 15th statement summary for 7214
25 Corregidor and the telephone number that you referenced.
351
1 A. Yes, sir.
2 MR. LONDON: All right. We offer 173.
3 MR. LEEN: I'm sorry, Your Honor, I was talking to the
4 defendant.
5 No objection.
6 THE COURT: 173 is admitted.
7 (Exhibit No. 173 was admitted.)
8 Q. (By Mr. London) Please look at 174; the same question.
9 A. This would be their July invoice, yes.
10 MR. LONDON: All right. We'd offer 174.
11 MR. LEEN: No objection.
12 Q. (By Mr. London) 175, please.
13 A. Yes, this would be the August invoice.
14 MR. LONDON: We offer 175.
15 THE COURT: 174 and 175 are admitted.
16 (Exhibits Nos. 174 and 175 were admitted.)
17 Q. (By Mr. London) 176, please.
18 A. Yes, this is the bill we sent in.
19 Q. Okay. 177, the same thing.
20 A. Yes.
21 Q. Skip ahead, please, to 179.
22 A. Okay.
23 Q. All right. Same thing, is that a December statement for
24 that account?
25 A. Yes, sir.
352
1 Q. All right.
2 MR. LONDON: And I offer 179.
3 MR. LEEN: No objection.
4 THE COURT: 179 is admitted.
5 (Exhibit No. 179 was admitted.)
6 MR. LONDON: Thank you.
7 Q. (By Mr. London) Finally, back to 178, if you would.
8 A. Okay. Yes.
9 Q. Is that a statement that was sent out or dated November
10 11th, 2000, for that account?
11 A. Yes, sir.
12 Q. Does that include telephone calls that would have been made
13 by the number you referenced for the month of October?
14 A. Yes, sir.
15 Q. All right. Can you please turn to the second page, I
16 believe, of 178.
17 Do you see a series of dates that are referenced in the
18 left-hand column of the exhibit for the month of October?
19 A. Yes.
20 Q. Will you scroll down to October 31st. Do you see a call to
21 Portland, Oregon, at 10:34 p.m.?
22 A. Yes.
23 Q. I'm sorry, that might be -- I'm sorry, that's a.m.
24 A. (Nods head.)
25 Q. Can you please tell us what telephone number was called at
353
1 10:34 a.m.?
2 A. Yes. (503) 326-2246.
3 Q. And the approximate duration of that call?
4 A. Two minutes.
5 MR. LONDON: We'd offer 178.
6 MR. LEEN: No objection.
7 THE COURT: 178 is admitted.
8 (Exhibit No. 178 was admitted.)
9 MR. LONDON: Thank you.
10 THE COURT: Cross-examination.
11 MR. LEEN: I have no questions.
12 THE COURT: The witness may be excused.
13 MR. LONDON: I'm sorry, Your Honor, I neglected to do
14 something.
15 I'm sorry. I apparently neglected to offer 176 and 177.
16 THE COURT: What does the clerk's records show?
17 THE CLERK: No, it's not offered.
18 THE COURT: 176 and 177 are admitted.
19 (Exhibits Nos. 176 and 177 were admitted.)
20 MR. LONDON: Thank you.
21 THE COURT: The witness may be excused.
22 (Witness excused.)
23 BRIAN D. MEYER, PLAINTIFF'S WITNESS, SWORN
24 THE CLERK: Please be seated.
25 Please state your full name and spell your last name.
354
1 THE WITNESS: Brian Daniel Meyer. M-e-y-e-r.
2 DIRECT EXAMINATION
3 BY MR. LONDON:
4 Q. Mr. Meyer, how are you employed?
5 A. I'm a special agent with the Bureau of Alcohol, Tobacco, and
6 Firearms.
7 Q. And were you employed as a special agent with ATF in the
8 autumn of 2000?
9 A. Yes, I was.
10 Q. All right. And as part of your duties as an ATF agent in
11 that regard, were you asked to install or to help install an
12 electronic tracking device on the vehicle of defendant, James
13 Dalton Bell?
14 A. Yes, I was.
15 Q. All right. And did you in fact do that on November 6th of
16 2000?
17 A. That's correct.
18 Q. And was that done at the time that other agents were
19 executing the federal search warrant at Mr. Bell's residence?
20 A. Yes, it was.
21 Q. All right. Was that done pursuant to a federal court order,
22 as best as you know?
23 A. Yes, it was.
24 Q. Okay. Can you please tell us in broad terms how this
25 tracking device works?
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1 A. The tracking device is a global positioning system unit.
2 It's a device that uses satellites to fix a certain position to
3 the device. That information is transmitted via radio frequency
4 to a software program that plots that information onto a mapping
5 system.
6 Q. All right. Well, let me -- let me break it down just a
7 little bit. Does the device that you install on the car either
8 have a power source or a hookup to a power source of some kind
9 so that it can emit an electronic signal?
10 A. Yes, it does.
11 Q. All right. And is that signal then captured or received by
12 a commercial satellite?
13 A. Yes, it is.
14 Q. And is it then -- is the data that the signal sends out,
15 that is captured by the satellite, is that stored by the
16 satellite or retransmitted by the satellite back down to earth,
17 if you will?
18 A. It is actually -- the information is stored from the
19 satellite to the device.
20 Q. And does the satellite have an ability to translate the
21 signal into longitude and latitudinal -- excuse me --
22 longitudinal and latitudinal data?
23 A. That's correct, it does.
24 Q. All right. So is it fair to say that as the tracking device
25 moves through physical space, the longitude and latitude of its
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1 location are recorded in real time?
2 A. Yes, it is.
3 Q. And can those be transmitted by the satellite back down to
4 earth so somebody is capable of tracking the location of the
5 satellite device in real time?
6 A. Yes, it is.
7 Q. All right.
8 A. May I make one correction? It is actually transmitted from
9 the device via RF. It's not transmitted from the satellite to
10 the --
11 Q. All right. Thank you. When you say RF, does that mean
12 radio frequency?
13 A. That's correct.
14 Q. All right. Do you take any steps either prior to the
15 installation of such a device or as -- after the device has been
16 installed to verify the accuracy of the information that it is
17 capturing and that is being sent by a radio frequency?
18 A. Yes, I have.
19 Q. What steps do you take to make sure, essentially to
20 double-check the accuracy of the signal that you are getting
21 as to the location of the tracking device?
22 A. I have a separate hand-held device that I use that's made by
23 another manufacturer to -- to corroborate those, those
24 settings.
25 Q. All right. And is -- when you say hand-held device, is that
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1 also what we call a GPS system?
2 A. Yes, it is.
3 Q. What does GPS stand for?
4 A. Global positioning system.
5 Q. All right. Are you aware of any differences in grade or
6 quality or reliability of GPS equipment in general? For
7 example, if there's such a thing as military grade that might be
8 particularly high quality and commercial grade that might not be
9 very reliable?
10 A. Yes, there is.
11 Q. What kinds of factors affect the reliability of this
12 equipment?
13 A. The ability of the receiver in the device to pick up more
14 chat -- more satellites. Some may only pick up three
15 satellites, some may pick up to 12 satellites.
16 Q. And, in fact, aren't there a number of GPS tracking devices
17 sort of commercially available on the market these days?
18 A. Yes, there is.
19 Q. Could I go into a Costco, for example, and buy a GPS system
20 if I wanted to put it in my own car just for kicks?
21 A. Yes, you could.
22 Q. What grade or quality would you say was the equipment that
23 was used in this case?
24 A. It was a high quality multi-channel, multi-satellite
25 tracking system.
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1 Q. Is that one that is typically used by law enforcement?
2 A. Yes, it is.
3 Q. Do you happen to know if that's one that would also be used
4 by military?
5 A. Probably, yes.
6 Q. And the equipment that you use to track the equipment that
7 was installed in the car, what quality level equipment was that,
8 would you say?
9 A. Again, that is high quality. Something that the military
10 law enforcement would use.
11 Q. All right. Now, when the device that was installed on Mr.
12 Bell's car gave out a particular readout, were you able to
13 correspond that to a location on a map and then go and check and
14 see if his car was actually there?
15 A. Yes, we were able to do that.
16 Q. How did do you that?
17 A. The coordinates are laid out on a graphical map in a
18 software program and the mapping software gives you streets,
19 cross streets. It gives you landmarks.
20 Q. All right. So I just want to break it down a little bit.
21 Is it your testimony that there's also a software package that
22 is available that enables the data that is captured by the
23 tracking device and the satellite to be translated into
24 coordinates that appear on a physical map, for example, of
25 downtown Portland or Vancouver, Washington?
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1 A. That is correct.
2 Q. All right. And so if you receive a signal that indicates on
3 that software package that Mr. Bell's car is in the parking lot
4 at the Vancouver Public Library, for example, are you able to go
5 to the Vancouver Public Library and see if you can actually spot
6 his car?
7 A. Yes, you can.
8 Q. Do you know what his car looks like?
9 A. Yes, I do.
10 Q. What was the make of the car that you installed the device
11 in?
12 A. It was a Nissan Maxima.
13 Q. Did you ever receive a signal that the Nissan Maxima was at
14 a particular location and then did you ever go and verify that
15 it was at that location?
16 A. I did not personally.
17 Q. Do you know if anyone at ATF did?
18 A. I believe they did.
19 Q. Do you know Alice Clark?
20 A. Yes, I do.
21 Q. Is she a special agent with ATF?
22 A. Yes, she is.
23 Q. Did she help in this project to verify the accuracy of the
24 satellite information by going to physical locations where it
25 was reporting its