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 6 of the testimony.

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

           1                   UNITED STATES DISTRICT COURT
                              WESTERN DISTRICT OF WASHINGTON
           2                            AT TACOMA
           4  UNITED STATES OF AMERICA,    )  Docket No. CR00-5731JET
                                           )  Court of Appeals No. 01-30303-00
           5              Plaintiff,       )
           6          v.                   )
                                           )  Tacoma, Washington
           7  JAMES DALTON BELL,           )  April 10, 2001
           8              Defendant.       )
          10                              VOLUME 6
                                     TRANSCRIPT OF TRIAL
          11                 BEFORE THE HONORABLE JACK E. TANNER
                       SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
          13  APPEARANCES:
          14  For the Plaintiff:            ROBB LONDON
                                            Assistant United States Attorney
          15                                601 Union Street, Suite 5100
                                            Seattle, Washington  98101
              For the Defendant:            ROBERT M. LEEN
          17                                Attorney At Law
                                            Two Union Square
          18                                601 Union Street, Suite 4610
                                            Seattle, Washington  98101-3903
          21  Court Reporter:               Julaine V. Ryen
                                            Post Office Box 885
          22                                Tacoma, Washington 98401-0885
                                            (253) 593-6591
              Proceedings recorded by mechanical stenography, transcript
          25  produced by Reporter on computer.
           1                              I N D E X
           2                                                     Page
           3  VOLUME 6                                       805 - 834
           4  Court's Instructions to the Jury  .................  807
           5  Alternate Jurors excused  .........................  819
           6  Note From the Jury ................................  821
           7  Second Note From the Jury/Verdict .................  824
           8  Defendant's Motion for a Mistrial  ................  826
                  Denied  .......................................  826
              Jury Polled  ......................................  829
              Jury Excused  .....................................  830
              Defendant's Motion to Dismiss Counts 1, 4, and 5 ..  830
          12      Granted Without Prejudice  ....................  830
          13  Defendant's Motion to Dismiss Counts 2 and 3  .....  830
                  Denied  .......................................  830
           1  (Defendant present.)
           2                           MORNING SESSION
           3      (Jury not present; 9:40 a.m.)
           4           THE COURT:  Are you ready for the jury?
           5           MR. LEEN:  Your Honor, the defendant would just like to
           6  make two exceptions to the jury instructions that I didn't make
           7  clear yesterday, numbers 12 and 19.
           8      Thank you.
           9           THE COURT:  Ready for the jury, right?
          10           MR. LONDON:  Yes, Your Honor.
          11           THE COURT:  All right.  Bring the jury.
          12           MR. LEEN:  That's 16; 12 and 16, not 19.  A
          13  misstatement by me.
          14           THE COURT:  All right.
          15      (Jury present; 9:43 a.m.)
          16           THE COURT:  All right.  Let the record reflect all
          17  jurors are present.
          18      Mr. London, does the government rest?
          19           MR. LONDON:  Yes, Your Honor.  The government has
          20  rested.
          21           THE COURT:  Does the defendant rest, Mr. Leen?
          22           MR. LEEN:  Yes, Your Honor.
          23           THE COURT:  All right.
          24      Members of the jury, now that you have heard all the
          25  evidence, it is my duty to instruct you on the law which applies
           1  to this case.  A copy of these instructions will be available in
           2  the jury room for you to consult if you find it necessary.
           3      It is your duty to find the facts from all the evidence in
           4  the case.  To those facts you will apply the law as I give it to
           5  you.  You must follow the law as I give it to you whether you
           6  agree with it or not, and you must not be influenced by any
           7  personal likes or dislikes, opinions, prejudices, or sympathy.
           8  That means that you must decide the case solely on the evidence
           9  before you.  You will recall that you took an oath promising to
          10  do so at the beginning of the case.
          11      In following my instructions you must follow all of them and
          12  not single out some and ignore others.  They are all equally
          13  important.  And you must not read into these instructions or
          14  into anything the court may have said or done any suggestion as
          15  to what verdict you should return -- that is a matter entirely
          16  up to you.
          17      The indictment is not evidence.  The defendant is presumed
          18  to be innocent and does not have to testify or present any
          19  evidence to prove innocence.  The government has the burden of
          20  proving every element of the charge beyond a reasonable doubt.
          21  If it fails to do so, you must return a not guilty verdict.
          22      A separate crime is charged in each count.  You must decide
          23  each count separately.  Your verdict on one count should not
          24  control your verdict on any other count.
          25      You are here only to determine whether the defendant is
           1  guilty or not guilty of the charges in the indictment.  Your
           2  determination must be made only from the evidence in the case.
           3  The defendant is not on trial for any conduct or offense not
           4  charged in the indictment.  You should consider evidence about
           5  the acts, statements, and intentions of others, or evidence
           6  about other acts of the defendant, only as they relate to this
           7  charge against this defendant.
           8      In reaching your verdict you may consider only the testimony
           9  and exhibits received into evidence.  Certain things are not
          10  evidence, and you may not consider them in deciding what the
          11  facts are.  I will list them for you:
          12      1.  Arguments and statements by lawyers are not evidence.
          13  The lawyers are not witnesses.  What they have said in their
          14  opening statements, closing arguments and at other times is
          15  intended to help you interpret the evidence, but is not
          16  evidence.  If the facts as you remember them differ from the way
          17  the lawyers have stated them, your memory of them controls.
          18      2.  Questions and objections by lawyers are not evidence.
          19  Attorneys have a duty to their clients to object when they
          20  believe a question is improper under the rules of evidence.  You
          21  should not be influenced by the objection or by the court's
          22  ruling on it.
          23      3.  Testimony that has been excluded or stricken, or that
          24  you have been instructed to disregard, is not evidence and must
          25  not be considered.  In addition, some testimony and exhibits
           1  have been received only for a limited purpose; where I have
           2  given a limiting instruction, you must follow it.
           3      4.  Anything you may have seen or heard when the court was
           4  not in session is not evidence.  You are to decide the case
           5  solely on the evidence received at the trial.
           6      The evidence from which you are to decide what the facts are
           7  consists of (1) the sworn testimony of witnesses, both on direct
           8  and cross-examination, regardless of who called the witness; (2)
           9  the exhibits which have been received into evidence; and (3) any
          10  facts to which all the lawyers have agreed or stipulated.
          11      Evidence may be direct or circumstantial.  Direct evidence
          12  is direct proof of a fact, such as testimony of an eyewitness.
          13  Circumstantial evidence is indirect evidence, that is, proof of
          14  a chain or facts from which you could find that another fact
          15  exists, even though it has not been proved directly.  You are to
          16  consider both kinds of evidence.  The law permits you to give
          17  equal weight to both, but it is for you to decide how much
          18  weight to give to any evidence.
          19      A reasonable doubt is a doubt based upon reason and common
          20  sense, and may arise from a careful and impartial consideration
          21  of all the evidence, or from lack of evidence.  Proof beyond a
          22  reasonable doubt is proof that leaves you firmly convinced that
          23  the defendant is guilty.
          24      If after a careful and impartial consideration with your
          25  fellow jurors of all the evidence, you are not convinced beyond
           1  a reasonable doubt that the defendant is guilty, it is your duty
           2  to find the defendant not guilty.  On the other hand, if after a
           3  careful and impartial consideration with your fellow jurors of
           4  all the evidence, you are convinced beyond a reasonable doubt
           5  that the defendant is guilty, it is your duty to find the
           6  defendant guilty.
           7      To convict the defendant of the offense charged in count one
           8  of the indictment, you must find that the government has proven
           9  the following elements of the offense beyond a reasonable
          10  doubt:
          11      (1)  On or about October 23rd, 2000, the defendant traveled
          12  across a state line from Vancouver, Washington, into the state
          13  of Oregon;
          14      (2)  with the intent to harass Mike McNall; and
          15      (3) as a result of such travel placed Mike McNall in
          16  reasonable fear of death or serious bodily injury to himself or
          17  to his immediate family.
          18      To convict the defendant of the offense charged in count two
          19  of the indictment, you must find that the government has proven
          20  the following elements of the offense beyond a reasonable
          21  doubt:
          22      (1)  On or about October 23rd, 2000, the defendant traveled
          23  from Vancouver, Washington, across a state line and into the
          24  state of Oregon;
          25      (2)  with the intent to harass Jeff Gordon; and
           1      (3)  as a result of such travel placed Jeff Gordon in
           2  reasonable fear of death or serious bodily injury to himself or
           3  to his immediate family.
           4      To convict the defendant of the offense charged in count
           5  three of the indictment, you must find that the government has
           6  proved the following elements beyond a reasonable doubt:
           7      (1)  On or about October 31st, 2000, the defendant knowingly
           8  and intentionally used a facility or instrument of interstate
           9  commerce, in this case a facsimile machine and a telephone line;
          10      (2)  to send a message over the telephone line from
          11  Vancouver in the state of Washington to Jeff Gordon in the state
          12  of Oregon;
          13      (3)  with the intent and purpose of placing Jeff Gordon in
          14  reasonable fear of death or serious bodily injury to himself or
          15  to his immediately family; and
          16      (4)  this message placed Gordon in reasonable fear of death
          17  or serious bodily injury to himself or to his immediate family.
          18      To convict the defendant of the offense charged in count
          19  four of the indictment, you must find the government has proven
          20  the following elements of the offense beyond a reasonable
          21  doubt:
          22      (1)  On or about November 3rd, 2000, the defendant traveled
          23  across a state line, from Vancouver in the State of Washington
          24  and into the state of Oregon; and
          25      (2)  traveled in interstate commerce;
           1      (3)  with the intent to harass Scott Mueller; and
           2      (4)  as a result of such travel placed Scott Mueller in
           3  reasonable fear of death or serious bodily injury to himself or
           4  his immediate family.
           5      To convict the defendant of the offense charged in count
           6  five of the indictment, you must find that the government has
           7  proven the following elements of the offense beyond a reasonable
           8  doubt:
           9      (1)  On or about November 10, 2000, the defendant traveled
          10  from Vancouver, Washington, across a state line and into the
          11  state of Oregon; and
          12      (2)  traveled in interstate commerce;
          13      (3)  with the intent to harass Mike McNall; and
          14      (4)  as a result of such travel placed Mike McNall in
          15  reasonable fear of death or serious injury -- bodily injury to
          16  himself or his immediate family.
          17      As to counts four and five, if you find that the defendant
          18  traveled across the state lines from Washington to Oregon, then
          19  you may find that he traveled in interstate commerce.
          20      An act is done knowingly if the defendant is aware of the
          21  act and does not act or fail to act through ignorance, mistake,
          22  or accident.  The government is not required to prove that the
          23  defendant knew that his acts or omissions were unlawful.  You
          24  may consider evidence of the defendant's words, acts, or
          25  omissions, along with all the other evidence, in deciding
           1  whether the defendant acted knowingly.
           2      You have heard evidence of other acts by the defendant.  You
           3  may consider that evidence only as it bears on the defendant's
           4  identity and motive and for no other purpose.
           5      You have heard testimony that the defendant made
           6  statements.  It is for you to decide (1) whether the defendant
           7  made these statements, and (2) if so, how much weight to give to
           8  them.  In making those decisions, you should consider all of the
           9  evidence about the statements, including the circumstances under
          10  which the defendant may have made them.
          11      Certain charts and summaries have been received into
          12  evidence.  Charts and summaries are only as good as the
          13  underlying supporting material.  You should, therefore, give
          14  them only such weight as you think the underlying material
          15  deserves.
          16      You have heard testimony from an undercover agent who was
          17  involved in the government's investigation in this case.  Law
          18  enforcement officials are not precluded from engaging in stealth
          19  and deception, such as the use of informants and undercover
          20  agents, in order to apprehend persons engaged in criminal
          21  activities.  Undercover agents and informants may properly make
          22  use of false names and appearances and may properly assume the
          23  roles of members in criminal organizations.  The government may
          24  utilize a broad range of schemes and ploys to ferret out
          25  criminal activity.
           1      You have heard testimony from persons described as experts.
           2  Persons who, by education and experience, have become expert in
           3  some field may state their opinion on matters in that field and
           4  may also state their reasons for the opinion.
           5      Expert opinion testimony should be judged just like any
           6  other testimony.  You may accept it or reject it, and give it as
           7  much weight as you think it deserves, considering the witness'
           8  education and experience, the reasons given for the opinion, and
           9  all the other evidence in the case.
          10      I now have four other instructions, but I'm going to read
          11  them to you after the closing arguments of respective counsel,
          12  both for the government and the defendant.  The parties both
          13  know about it.
          14      I think I should tell both parties now, I made a mistake
          15  when I said I'm going to exclude that two party, and it says you
          16  are to consider the defendant's testimony just as any other
          17  witness.  That will be given.  Do you understand?
          18           MR. LEEN:  Yes, Your Honor.
          19           THE COURT:  You now have notice of the four I'm going
          20  to withhold, but you are free to comment on them to the jury.
          21  You are not to single out any instruction, but you are to
          22  consider them as a whole.
          23      You will now hear the opening closing on behalf of the
          24  government.
          25      Mr. London.
           1                       *    *    *    *    *
           2                (Closing arguments were not ordered.)
           3                       *    *    *    *    *
           4                          AFTERNOON SESSION
           5                       *    *    *    *    *
           6                (Closing arguments were not ordered.)
           7                       *    *    *    *    *
           8           THE COURT:  Okay.  I have four more instructions.  Even
           9  though I'm reading them after the closing closing by the
          10  government, you are to consider them just as though I have read
          11  them with the foregoing that I had previously read to you.
          12      In deciding what the facts are, you must consider all the
          13  evidence.  In doing this, you must decide what testimony to
          14  believe and what testimony not to believe.  You may disbelieve
          15  all or any part of any witness' testimony.  In making that
          16  decision, you may take into account a number of factors,
          17  including the following:
          18      1.  Was the witness able to see, or hear, or know the things
          19  about which that witness testified?
          20      2.  How well was the witness able to recall and describe
          21  those things?
          22      3.  What was the witness' manner while testifying?
          23      4.  Did the witness have an interest in the outcome of this
          24  case or any bias or prejudice concerning any party or any matter
          25  involved in the case?
           1      5.  How reasonable was the witness' testimony considered in
           2  light of all the evidence in the case?
           3      6.  Was the witness' testimony contradicted by what that
           4  witness had said or done at another time, or by the testimony of
           5  other witnesses, or by other evidence?
           6      In deciding whether or not to believe a witness, keep in
           7  mind that people sometimes forget things.  You need to consider,
           8  therefore, whether a contradiction is an innocent lapse of
           9  memory or an intentional falsehood, and that may depend on
          10  whether it has to do with an important fact or with only a small
          11  detail.
          12      The weight of the evidence presented by each side does not
          13  necessarily depend on the number of witnesses testifying on one
          14  side or the other.  You must consider all the evidence in the
          15  case, and you may decide that the testimony of a smaller number
          16  of witnesses on one side has greater weight than that of a
          17  larger number on the other.
          18      You should judge the testimony of the defendant just as you
          19  should judge the testimony of any other witness.
          20      The punishment provided by law for this crime is for the
          21  court to decide.  You may not consider punishment in deciding
          22  whether the government has proved its case against the defendant
          23  beyond a reasonable doubt.
          24      The verdict must represent the considered judgment of each
          25  juror.  In order to return a verdict, it is necessary that each
           1  juror agree thereto.  Your verdict must be unanimous.
           2      It is your duty, as jurors, to consult with one another, and
           3  to deliberate with a view to reaching an agreement, if you can
           4  do so without violence to individual judgment.  Each of you must
           5  decide the case with your fellow jurors.  In the course of your
           6  deliberations, do not hesitate to reexamine your own views, and
           7  change your opinion, if convinced it is erroneous.  But do not
           8  surrender your honest conviction as to the weight or effect of
           9  evidence, solely because of the opinion of your fellow jurors,
          10  or for the mere purpose of returning a verdict.
          11      Remember at all times, you are not partisans.  You are
          12  judges -- judges of the facts.  Your sole interest is to seek
          13  the truth from the evidence in the case.
          14      Upon retiring to the jury room for your deliberations, you
          15  will select one of your number to act as the presiding juror.
          16  The presiding juror will preside over your deliberations and
          17  will be your spokesperson here in court.
          18      Forms of the verdict have been prepared for your
          19  convenience.
          20      You will take this form to the jury room and, when you have
          21  reached unanimous agreement as to your verdict, you will have
          22  your presiding juror fill in, date, and sign the form which sets
          23  forth the verdict upon which you unanimously agree, and then
          24  return with your verdict to the courtroom.
          25      It's a one-page verdict form, and it's got a blank for
           1  whatever you find and it is self-explanatory, but you should
           2  read it before you attempt to fill it out.  And you will have a
           3  copy of these instructions, together with those exhibits that
           4  were admitted by the court.
           5      But now, there are 14, and there can only be 12 in the jury
           6  room.  So [Alternate Jurors' names withheld by order of the
           7  Court] are now excused.  There can only be 12 in that jury room
           8  to discuss this case.  Okay?
           9      For the first time, I will tell you, start discussing the
          10  case just as soon as you get in the jury room, which will be
          11  right now.  Please go to the jury room.
          12      Have both parties looked at those exhibits that were
          13  admitted by the court?
          14           MR. LEEN:  I haven't looked at them yet, Your Honor.
          15           THE COURT:  Do you want to look at them?
          16           MR. LEEN:  Yes.
          17           THE COURT:  Now.  The jury is waiting for them.
          18           MR. LEEN:  Fine, Your Honor.  Thank you.
          19           THE COURT:  All right.  In anticipation that the jury
          20  might want to use the screens again, be prepared, upon request,
          21  as I won't allow them to go in the jury room to do it.  They
          22  will have to do it here, on the machines, in the presence of the
          23  defendant and his counsel.  Any misunderstanding?
          24           MR. LONDON:  No, Your Honor.
          25           MR. LEEN:  No.
           1           THE COURT:  Was there any evidence in this case
           2  admitted that is not now in the jury room?
           3           THE CLERK:  No, Your Honor.
           4           THE COURT:  Is that correct?
           5           THE CLERK:  Yes, Your Honor.
           6           THE COURT:  There's no firearms, there's no contraband
           7  of any kind in this case, is that correct?
           8           THE CLERK:  Correct.
           9           MR. LONDON:  There is a set of lock picks that was an
          10  exhibit, and those --  I don't know if those are considered
          11  contraband or not.  I don't know if those are admitted or not.
          12           THE COURT:  Well, if they ask for it, the government
          13  will be expected to produce them immediately.  Understand?
          14           MR. LONDON:  Yes, sir.
          15           THE COURT:  Any questions now?
          16           MR. LONDON:  No, Your Honor.
          17           THE COURT:  Both parties will be expected to
          18  immediately respond to any jury questions immediately.  We do
          19  not intend to wait for you.  We will send the marshals for any
          20  and everybody immediately.  Understand?
          21           MR. LONDON:  Yes, Your Honor.
          22           THE COURT:  The defendant's in the custody of the
          23  marshals.
          24      (Defendant is removed from courtroom.)
          25           THE COURT:  Court's in recess pending the jury
           1  verdict.
           2      (Recessed at 1:26 p.m.)
           3      (Defendant present.)
           4      (Jury not present; 3:36 p.m.)
           5           THE COURT:  Be seated.
           6      I received two notes from the jury.  One, definition of
           7  intent.  Two, may we have a dictionary and legal definition of
           8  intent.
           9      Do you want to show it to them, both of them?
          10           THE CLERK:  Come forward if you want to see it.
          11           MR. LEEN:  Okay.  Thank you.
          12           THE COURT:  Comment from the government?
          13           MR. LONDON:  I will confess that I'm not familiar with
          14  what the law is regarding a dictionary.  I seem to recall from
          15  other cases that they are not entitled to have that.  The
          16  definition in the dictionary might not be a legal definition as
          17  a term of law.  But I will see what Mr. Leen has to say about
          18  that.
          19           THE COURT:  Mr. Leen.
          20           MR. LEEN:  I don't believe that the jury is allowed to
          21  have a dictionary in the jury room, Your Honor.
          22           THE COURT:  The answer to that is no.  Right?
          23           MR. LEEN:  I agree.
          24           THE COURT:  No?
          25           MR. LEEN:  The answer to the question about a
           1  dictionary should be no.
           2           THE COURT:  That's right.  No.
           3      All right.  Now, this as to meaning of intent.
           4           MR. LEEN:  Your Honor, we asked at jury charging that
           5  the jury be charged with the definition of intent for this very
           6  reason.
           7           THE COURT:  For what very reason?
           8           MR. LEEN:  Because it's a term that's not defined and
           9  is relevant to an element of the offense.
          10           THE COURT:  Well, the answer to this is read the
          11  instructions.
          12           MR. LEEN:  There is no definition of intent in the
          13  instructions.
          14           MR. LONDON:  There is a definition of knowledge in the
          15  instructions.  It could be they could be referred to the
          16  knowledge instruction.
          17           MR. LEEN:  We would object to that.  Intent, Your
          18  Honor, is acting with the object and purpose to commit acts
          19  which constitute a crime.  It's the highest level of knowledge.
          20  It's the highest level of mental state in the law.
          21           THE COURT:  That's your position.
          22      What's the government's position?
          23           MR. LONDON:  I don't believe that it -- that the jury
          24  should be instructed that intent means intent to commit a crime,
          25  because it specifically is defined in a number of legal
           1  definitions as simply the intent to do the act that has a
           2  particular effect.  The defendant does not necessarily need to
           3  know that he's breaking the law, as long as he specifically
           4  intends to do the thing that he does that results in the law
           5  being broken.
           6           MR. LEEN:  This is a specific intent crime, Your Honor.
           7           THE COURT:  Do I say reread or read the instructions?
           8           MR. LEEN:  I would just say no, it will not be defined
           9  for you.
          10           MR. LONDON:  I guess it's read the instructions,
          11  because we're not going to give them another definition.  Then I
          12  guess -- I don't think we have another alternative than to tell
          13  them they are not getting a definition.
          14           MR. LEEN:  It's not in the instructions, so I think
          15  that the appropriate one would be to say no.
          16           THE COURT:  I said read the instructions, and endorsed
          17  it.
          18           MR. LEEN:  We would object to such a response, Your
          19  Honor.
          20           THE COURT:  It's noted.
          21           MR. LEEN:  Thank you.
          22           THE COURT:  Anything else?
          23           MR. LEEN:  No.
          24           THE COURT:  All right.  Court is in recess pending the
          25  verdict.
           1      (Recess.)
           2      (Defendant present.)
           3      (Jury not present.)
           4           THE COURT:  Bring the jury.
           5      (Jury present; 4:55 p.m.)
           6           THE COURT:  Let the record reflect all members of the
           7  jury are present, defendant's present, counsel, the government
           8  is represented.
           9      To the jury, who's the foreperson of the jury?
          10      (Juror No. 3 raises hand.)
          11           THE COURT:  Did that note, sir, come from you?
          12           JUROR NO. 3:  Yes, it did, Your Honor.
          13           THE COURT:  On behalf of the jury.
          14           JUROR NO. 3:  Yes, it did.
          15           THE COURT:  Read the note in open court.
          16           JUROR NO. 3:  The note says that counts one and four
          17  and five are hung; 11 guilty, one not guilty.  Counts two and
          18  three are unanimous guilty.  And we ask, what do we do now?
          19           MR. LONDON:  I'm sorry, I just actually didn't hear the
          20  last part.  After "we ask," I didn't hear it.
          21           JUROR NO. 3:  Counts two and three, unanimous, guilty.
          22  And we ask, what do we do now?
          23           THE COURT:  Give the clerk the note, and then please go
          24  back to the jury room.
          25      (Jury returns to the jury room.)
           1           THE COURT:  Defendant?
           2           MR. LEEN:  I'm sorry, are you asking --
           3           THE COURT:  Any comment?
           4           MR. LEEN:  Well, I don't --
           5           THE COURT:  Let the record reflect the jury is not
           6  present.
           7           MR. LEEN:  Yes, Your Honor.
           8      I don't think the jury can continue to deliberate because
           9  they have announced part of their verdict.  And so I would ask
          10  the court to discharge the jury.
          11           THE COURT:  Well, do I accept -- what we're talking
          12  about here is form.
          13           MR. LEEN:  Yes, sir.
          14           THE COURT:  Of the verdict.
          15           MR. LEEN:  Well, they published a verdict.  I guess
          16  they would have to be polled.
          17           THE COURT:  That's exactly what I want them to do.
          18  They haven't been polled yet.
          19           MR. LEEN:  But I think after they are polled, they
          20  should be discharged.
          21           THE COURT:  Government?
          22           MR. LONDON:  You know, I will confess, I haven't been
          23  quite through this set of circumstances before.
          24           THE COURT:  And we can't find anything.
          25           MR. LONDON:  It sounds to me as if it might not be
           1  fruitful to inquire whether any further deliberation --
           2           THE COURT:  I do not intend to.
           3           MR. LONDON:  Then, Your Honor, I believe they could be
           4  discharged after being polled, and then the United States
           5  attorney can decide whether or not to try Mr. Bell on the counts
           6  on which they were hung.  It's a matter of prosecutorial
           7  discretion.
           8           THE COURT:  The only question that I have, do I tell
           9  them to go back and fill out the form, or do we use this note as
          10  the form?
          11           MR. LEEN:  Well, the problem is that they have
          12  published their jury -- their numerical counts, which they are
          13  not supposed to do.
          14           THE COURT:  I understand.
          15           MR. LEEN:  I think I'm just going to move for a
          16  mistrial.
          17           THE COURT:  That will be denied.
          18           MR. LEEN:  Then other than that, I guess then you
          19  should treat that as -- as a conviction, I guess, on two counts,
          20  if that's what it's going to be doomed, but I don't think you
          21  can tell them to do anything else.  They aren't supposed to
          22  disclose their --
          23           THE COURT:  What I propose to do is poll them on counts
          24  two and three, without mentioning anything else.  There is some
          25  law on partial verdicts.
           1      Any objections?
           2           MR. LEEN:  I think that the verdicts are --
           3           THE COURT:  I have in mind your mistrial motion.
           4           MR. LEEN:  There's some irregularity here, and I can't
           5  voice it because I haven't really thought through the problem.
           6  But they can't deliberate anymore and you can't instruct them
           7  anymore, and they haven't returned a proper verdict.
           8           THE COURT:  I'm not asking you that.
           9           MR. LEEN:  So do I object to what you think about
          10  doing?
          11           THE COURT:  Is there any objection to poling the jury
          12  on counts two and three as to the form of the verdict?
          13           MR. LEEN:  Well, it would make sense.  But we would ask
          14  that the jury be polled before any conviction be received and
          15  filed with the clerk.
          16           THE COURT:  It has already been published, their
          17  verdicts on counts two and three.  Right?
          18           MR. LEEN:  Yes, sir.
          19           THE COURT:  I'm trying to put it in the proper form.
          20           MR. LEEN:  Well, I don't think you can at this point.
          21  And I don't think that --
          22           THE COURT:  So you're saying that I should not ask them
          23  to fill out the verdict form as to counts two and three on which
          24  they have reached a verdict as they published?
          25           MR. LEEN:  I would say that you shouldn't tell them
           1  that direction.
           2           THE COURT:  Should not.
           3           MR. LEEN:  Objection.
           4           THE COURT:  Because what they are asking for --
           5           MR. LEEN:  I will object, for the record.
           6           THE COURT:  Bring them back.
           7      Get ready to poll the jury.
           8           THE CLERK:  On counts two and three?
           9           THE COURT:  Hum?
          10           THE CLERK:  On two and three?
          11           THE COURT:  On two and three.
          12      (Jury present.)
          13           THE COURT:  Let the record again reflect the jury is
          14  present, defendant is present with counsel, and the government
          15  is represented.
          16      What we are going to do now, the clerk is going to ask you,
          17  each individual juror by number, as to counts two and three
          18  only.
          19      And what is the question going to be?
          20           THE CLERK:  Members of the jury, I shall pose a
          21  question directed to each of you individually and as members of
          22  the jury:  Is the verdict as read as to counts two and three
          23  your verdict and the verdict of the jury?
          24           THE COURT:  Now, that's going to be the question.
          25      Okay?  Start with juror number one.
           1           THE CLERK:  Please respond yes or no as I call your
           2  number.
           3      Number one.
           4           JUROR NO. 1:  Yes.
           5           THE CLERK:  Number two.
           6           JUROR NO. 1:  Yes.
           7           JUROR NO. 2:  Yes.
           8           THE COURT:  Number three.
           9           JUROR NO. 3:  Yes.
          10           THE CLERK:  Number four.
          11           JUROR NO. 4:  Yes.
          12           THE CLERK:  Number five.
          13           JUROR NO. 5:  Yes.
          14           THE CLERK:  Number six.
          15           JUROR NO. 6:  Yes.
          16           THE CLERK:  Number seven.
          17           JUROR NO. 7:  Yes.
          18           THE CLERK:  Number eight.
          19           JUROR NO. 8:  Yes.
          20           THE CLERK:  Number nine.
          21           JUROR NO. 9:  Yes.
          22           THE CLERK:  Number ten.
          23           JUROR NO. 10:  Yes.
          24           THE CLERK:  Number eleven.
          25           JUROR NO. 11:  Yes.
           1           THE CLERK:  Number twelve.
           2           JUROR NO. 12:  Yes.
           3           THE COURT:  All right.  The verdict will be accepted.
           4      The jury is now excused, but before you leave, let me tell
           5  you something.  You do not have to talk to anybody.  Do you
           6  understand what I said?  I'm not telling you you can't.  All I'm
           7  telling you, you have no responsibility, except to yourself, to
           8  talk to anybody about your service on this case.
           9      You are now free to go home.
          10           JUROR NO. 5:  Thank you.
          11      (Jury is excused.)
          12           THE COURT:  July 6th, at -- 2001, at 9:30, or as soon
          13  thereafter as the court can be heard, will be the sentencing
          14  date, and there will be a probation report on this case.  As to
          15  counts two and three.
          16      Anything further to take up, either party?
          17           MR. LEEN:  Defense would move for dismissal of counts
          18  one, four, and five.
          19           MR. LONDON:  Any dismissal we would appreciate being
          20  without prejudice and giving us the ability to refile if we so
          21  choose.
          22           THE COURT:  They're dismissed without prejudice.
          23           MR. LEEN:  We also move for dismissal of counts two and
          24  three for irregular jury verdicts.
          25           THE COURT:  That will be denied.
           1           MR. LEEN:  Your Honor, may the defense have ten days to
           2  file a motion for new trial?
           3           THE COURT:  Whatever the rule is.
           4           MR. LEEN:  I understand that I'm allowed to ask you at
           5  this point to extend it from seven days to whatever time the
           6  court deems reasonable, and I have some other matters to take
           7  care of.  Ten days would be helpful.
           8           MR. LONDON:  No objection.
           9           THE COURT:  You've got it.
          10           MR. LEEN:  Thanks.
          11           THE COURT:  Meanwhile, the defendant is in the custody
          12  of the United States Marshals.
          13      The note from the jurors will be part of the record and it
          14  will be filed.
          15           MR. LEEN:  May the defense have a copy of it, Your
          16  Honor?
          17           THE COURT:  I said it would be filed.
          18           MR. LEEN:  Yes, sir.
          19           THE COURT:  Anything else to take up?
          20      (Defendant is removed by the marshals.)
          21           MR. LONDON:  Yes, Your Honor.  I just have one thing.
          22  I don't think the defendant needs to be present for this.
          23      But we did share a courtesy copy of our exhibits with Mr.
          24  Leen, and now that the trial is completed, we would like to be
          25  able to have those back.
           1           THE COURT:  What's the record -- what's the procedure
           2  of the clerk's office?
           3           THE CLERK:  That would be discovery.
           4           MR. LONDON:  It's just -- we believe Mr. Leen has
           5  those, and we do need to get them back.
           6           THE COURT:  If I understand -- what's the rule on
           7  exhibits?
           8           THE CLERK:  At the end of the trial I return exhibits
           9  to the parties and they maintain them during the appeal period.
          10  I don't have anything to do with the government and defense
          11  counsel exchanging exhibits.
          12           MR. LONDON:  I would like clarification of this court's
          13  order with regard to the sealing of the file.  These exhibits,
          14  the courtesy copy given to defense counsel, are not technically
          15  a part of the file that has been ordered to be sealed until
          16  further notice of the court, but we are concerned that
          17  information in those exhibits not be published as a kind of back
          18  door exception to this court's order.  So we are asking that
          19  those be returned at this time.  Or at least that Mr. Leen be
          20  given instruction that he should not share any of that material
          21  with members of the press or otherwise.  I say it because I know
          22  there have been requests made.
          23           THE COURT:  Mr. Leen, you are ordered by the court not
          24  to reveal to your client or any news media the names, addresses,
          25  or any identification of the jurors in this case.
           1           MR. LEEN:  Certainly, Your Honor.
           2           THE COURT:  Do you understand that?
           3           MR. LEEN:  I understand that.  Thank you.
           4           MR. LONDON:  But what about the victims, Your Honor?  I
           5  think you just mentioned jurors, but what's in that notebook is
           6  not jurors' names but victims' names and other personal address
           7  information of people who really don't need to have that
           8  information displayed on the Internet or elsewhere.
           9           THE COURT:  What you're saying is I'm supposed to
          10  anticipate a crime by the -- I don't think I have the authority
          11  to do that.  Do I?
          12           MR. LONDON:  Well, I'm not sure, Your Honor.  I -- my
          13  view of it is this, that --
          14           THE COURT:  They testified in open court, right?
          15           MR. LONDON:  Yes.
          16           THE COURT:  That can be printed, can't it?
          17           MR. LONDON:  Yes, that can.  That's a matter of public
          18  record.  But as to specific exhibits that are in the possession
          19  of the defense, we already have a ruling from you, an order from
          20  you, saying that this court file will be sealed until --
          21           THE COURT:  My order goes to the jurors, period.
          22           MR. LONDON:  All right.  Thank you.
          23           THE COURT:  The jurors, period.
          24      Now, both parties heard what I told the jury.  They don't
          25  have to talk to anyone.  But if they do, I can't do anything
           1  about that.  As far as I know.
           2           MR. LEEN:  Yes, sir.
           3           THE COURT:  Understand?
           4      Okay.  Court's in recess.
           5      (Adjourned at 5:10 p.m.)
           9                        C E R T I F I C A T E
          11       I certify that the foregoing is a correct transcript from
          12  the record of proceedings in the above-entitled matter.
          16  ________________________________             October 22, 2001
                      JULAINE V. RYEN                            Date

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