24 November 2001
Source: Digital files from Court Reporter Julaine V. Ryen, Western District
of Washington, Tacoma, WA. Telephone: (253) 593-6591
This is Day 2 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
89
1 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
2 AT TACOMA
3
4 UNITED STATES OF AMERICA, ) Docket No. CR00-5731JET
) Court of Appeals No. 01-30303-00
5 Plaintiff, )
)
6 v. )
) Tacoma, Washington
7 JAMES DALTON BELL, ) April 4, 2001
)
8 Defendant. )
)
9
10 VOLUME 2
TRANSCRIPT OF TRIAL
11 BEFORE THE HONORABLE JACK E. TANNER
SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
12
13 APPEARANCES:
14 For the Plaintiff: ROBB LONDON
Assistant United States Attorney
15 601 Union Street, Suite 5100
Seattle, Washington 98101
16
For the Defendant: ROBERT M. LEEN
17 Attorney At Law
Two Union Square
18 601 Union Street, Suite 4610
Seattle, Washington 98101-3903
19
20
21 Court Reporter: Julaine V. Ryen
Post Office Box 885
22 Tacoma, Washington 98401-0885
(253) 593-6591
23
24
Proceedings recorded by mechanical stenography, transcript
25 produced by Reporter on computer.
90
1 I N D E X
Page
2
VOLUME 2 89 - 283
3
MOTIONS:
4
Defendant's Motion In Limine Regarding Guns ...... 93
5 Denied ................................. 102
6 Defendant's Motion to Exclude Testimony Regarding
Guns by Mr. East ................................ 103
7 Denied ................................. 103
8 Motion to Quash Subpoenas of Ms. Maida and
Ms. Levins ....................................... 104
9 Granted ................................ 107
10 Defendant's Motion for Mistrial................... 111
Denied ................................. 111
11
Defendant's Motion for Mistrial ................. 140
12 Denied ................................. 142
13 Plaintiff's Motion to File Exhibits Under Seal ... 281
14 WITNESSES ON BEHALF OF PLAINTIFF:
15 ROBERT WILLIAM EAST
Direct ....................... 112
16 Cross ........................ 118
Redirect ..................... 123
17 Further Direct ............... 124
Further Cross ................. 125
18
CHRISTOPHER JOHN GROENER
19 Direct ....................... 126
Cross ........................ 134
20 Redirect ..................... 139
21 HILDA WONG MURAMOTO
Direct ....................... 143
22 Cross ........................ 149
23 JOHN YOUNG
Direct ....................... 150
24 Cross ........................ 157
Redirect ..................... 167
25
91
1 I N D E X
2 J. BRIAN GOOLD
Direct ....................... 169
3 Voir Dire .................... 184
Direct (Continuing) ........... 184
4 Cross ........................ 188
Redirect ..................... 192
5
JOHN MICHAEL COPP
6 Direct ....................... 193
Cross ........................ 199
7 Redirect ..................... 203
Recross ....................... 204
8
SCOTT DEFOREST MUELLER
9 Direct ....................... 206
Cross ........................ 216
10
PHILLIP SCOTT
11 Direct ....................... 219
Cross ........................ 222
12
BRIAN TIMOTHY KENNEY
13 Direct ....................... 241
Cross ........................ 244
14 Redirect ..................... 246
Recross ....................... 246
15 Redirect ..................... 247
Recross ....................... 249
16 Redirect ..................... 249
17 JOHN RABATIN
Direct ....................... 250
18
EXHIBITS Admitted
19
2 173
20 3 262
5 263
21 7 266
8 266
22 20 118
21 118
23 60 255
61 258
24 101 268
102 269
25 103 270
92
1 I N D E X
2 EXHIBITS Admitted
3 104 271
105 270
4 106 273
107 273
5 108 274
110 275
6 115 277
117 278
7 118 279
125 256
8 126 256
128 280
9 137 172
138 243
10 139 244
150 155
11 171 174
183 221
12 190 175
191 175
13 192 176
193 176
14 194 177
195 181
15 196 182
197 182
16 198 183
199 183
17 200 184
201 185
18 202 185
203 185
19 204 186
205 186
20 207 258
208 259
21 209 187
210 222
22 211 259
212 260
23 213 187
24
25
93
1 (Defendant present.)
2 MORNING SESSION
3 (Jury not present.)
4 THE CLERK: Be seated, please.
5 THE COURT: Good morning. Do we have something to take
6 up?
7 MR. LONDON: Your Honor, I believe there are a few
8 matters to take up. Mr. Leen has a matter, and I have a couple
9 of matters.
10 MR. LEEN: Your Honor, the government has indicated an
11 intention to use -- to introduce Government's Exhibit 276, which
12 is a photograph of three, it looks like, assault-style rifles.
13 I don't think they are illegal rifles, but they certainly look
14 scary. They were returned to the defendant prior to his 1997
15 conviction. They are -- at the time that he owned them and had
16 them in his possession, they were perfectly lawful. Subsequent
17 to 1997, they would be illegal, and there's no evidence that he
18 had possession of these weapons after 1997.
19 The court has allowed evidence of emailings and his 1997
20 conviction for the purpose of his intent, and also -- well, as
21 to the purpose of intent, then, under 404(b). However, to
22 introduce three of these types of guns, or any evidence of
23 weapons, I think, improperly will cause the jury to have an
24 adverse inference drawn from a constitutional right, and that is
25 the right to bear arms. He had a perfect right to have these
94
1 weapons prior to 1997. He had no right to have these weapons
2 after 1997. I don't see any relevance to the possession of
3 these three firearms prior to 1997. And that's what the
4 state -- the government is seeking to introduce.
5 So I ask that the court find that under 403, in addition to
6 the fact that it's not relevant to this charge, that the court
7 bar any offering of this evidence.
8 THE COURT: Government.
9 MR. LONDON: Your Honor, our view is that it's very
10 important for the jury to be able to hear that Mr. Bell at one
11 time was in possession, and, we admit, lawful possession, of
12 four weapons, a .44 magnum, two SKS Chinese semi-automatic
13 assault -- or excuse me -- two SKS Chinese battle rifles, one
14 with a bayonet, and a mini 14 semiautomatic assault weapon.
15 Mr. Leen in his opening statement made a real point in
16 talking to the jury about the fact that Mr. Bell never had any
17 guns or didn't have any guns. I believe that creates a
18 deliberate -- perhaps not deliberate, but a misimpression. The
19 fact that the defendant once had an assault rifle and weapons of
20 that kind is something that goes to an element we have to prove
21 in this case, which is that the victims in this case were
22 reasonably in fear of Mr. Bell. They knew him to be someone who
23 at one point was into guns, and we have the burden of proving
24 the element of fear, or a reasonable basis for their fear, and
25 his prior gun possession is directly relevant.
95
1 Mr. Leen: Your Honor, the fact that someone had a
2 firearm at sometime in the past is not a reason to suspect that
3 he still illegally is possessing firearms. They had no evidence
4 whatsoever that --
5 THE COURT: Mr. Leen, it seems to me if someone was in
6 fear, does it make a difference whether they're unlawful or
7 legal or anything else? Just the fact you had them.
8 MR. LEEN: Well --
9 THE COURT: What's the distinction?
10 MR. LEEN: Well, the distinction is there's a
11 constitutional right to possess these items. And so what you're
12 asking the jury to do --
13 THE COURT: There's no constitutional right to put me
14 in fear, is there?
15 MR. LEEN: Well, so that under that theory, however,
16 then, free speech which puts you in fear is reasonable, and
17 that's not reasonable. That's the thrust of our argument.
18 THE COURT: I don't understand that one.
19 MR. LEEN: Well, if he -- because he posted something
20 on the Internet or because he has weapons doesn't mean by that
21 he -- by exercising rights, it's proper for a law enforcement
22 officer to fear the man. And that's what the government has
23 been doing. They have spent most of yesterday talking about
24 things that Mr. Bell did between 1994 and 1996, prior to his
25 1997 conviction, which were all part of his 1997 conviction.
96
1 THE COURT: That isn't, under my understanding of what
2 the government must prove, and that is that the persons involved
3 were in fear.
4 Mr. Leen: Well, isn't this just propensity evidence,
5 Your Honor?
6 THE COURT: Why is it propensity?
7 Mr. Leen: Under 404. 404(a), it would be
8 impermissible propensity evidence.
9 THE COURT: I thought we were under 403.
10 MR. LEEN: Well, I think that that's the balancing test
11 the court has to do. But under 404(a), it's improper for the
12 government to introduce evidence for propensity to commit a
13 crime. And I think the analysis has to accept the fact that
14 someone who has been convicted of a felony offense, it's not
15 reasonable every time a question is the state of mind of some
16 alleged victim that the person committed a crime in the past and
17 then go into the details of the crime in the way in which the
18 government has done in this case.
19 THE COURT: As I understand it, it's not being offered
20 that he committed a crime or might not have in the past or he
21 lawfully had them, just the fact he had them.
22 Mr. Leen: Your Honor, this --
23 THE COURT: I don't see how --
24 MR. LEEN: Possession of these items were -- is over
25 four years prior to the present offense.
97
1 THE COURT: But the problem is, the way I understand
2 it, the government is saying that the people who are the subject
3 matter of the five charges, or four charges, knew he had
4 weapons.
5 MR. LEEN: This is impermissible character --
6 THE COURT: Does it make a difference whether I legally
7 have it or unlawfully have it if I can use it?
8 MR. LEEN: In this instance --
9 THE COURT: Isn't that what the charge is?
10 MR. LEEN: The government is asking the jury to draw an
11 adverse inference from the exercise of a constitutional right.
12 MR. LONDON: Your Honor, may I just respond?
13 MR. LEEN: It's not relevant at all to this charge.
14 MR. LONDON: It's relevant for two reasons. Mike
15 McNall and Jeff Gordon are going to get on that stand and I'm
16 going to ask them why they were afraid when they found out that
17 this individual was trying to find out where they lived. One of
18 the things they are going to say is, we knew at one time that he
19 was walking around with serious fire power, including a
20 semiautomatic assault weapon.
21 Moreover, the evidence is going to be that the government
22 was in possession of those four weapons after Mr. Bell's prior
23 conviction and we returned them. We arranged to return them to
24 someone that he designated. He designated that we return them
25 to a friend of his. That friend of his got those weapons, and
98
1 after that point we don't know where they went. Those
2 individuals, as far as they knew, Mr. Bell might have access to
3 them once they went to a friend of his.
4 MR. LEEN: And that's the missing link, Your Honor. If
5 there's evidence that he had them or that he contacted the
6 individual to get them, that's a different matter than the
7 situation here when in 1997 they returned the weapons.
8 THE COURT: Well, Mr. Leen, it's not unusual to have
9 more than one person in possession, if I understand the word
10 possession of a firearm.
11 MR. LEEN: Your Honor, under that theory, then, if he
12 was a prior convicted felon --
13 THE COURT: He had access to it.
14 MR. LEEN: If he had a weapon at any time in the past.
15 In fact, anybody could -- as long as he had a weapon in the
16 past, they would be allowed to bring that up.
17 THE COURT: We're not talking about anybody. We're
18 talking about the defendant.
19 MR. LEEN: No, I don't think you can localize it to
20 this defendant. I think this is a general rule here.
21 Respectfully.
22 THE COURT: What do you mean, general rule?
23 MR. LEEN: Well, I think that you have to analyze it in
24 terms of any defendant who had -- four years prior to the
25 instant offense had a weapon. It would not be reasonable for
99
1 anyone to assume that he was in illegal possession of a weapon
2 when there's no evidence, no evidence, that he had possession of
3 the weapon or attempted to gain possession of the weapon or
4 attempted to get any other firearm. And that's the problem.
5 THE COURT: Well, if I understand the government's
6 offer, the evidence would show that they gave them back to him.
7 MR. LEEN: They did not give them back to him.
8 THE COURT: Well, they gave them back to his designee.
9 MR. LEEN: Yes, sir.
10 MR. LONDON: I would be perfectly happy to limit the
11 testimony to simply the fact that he was at one time in
12 possession of weapons of that caliber and magnitude, because
13 that's really what the agents were afraid of.
14 THE COURT: Is that what they are going to say?
15 MR. LONDON: Yes, Your Honor.
16 THE COURT: What's the matter with that?
17 MR. LEEN: Your Honor, it's asking the jury to draw the
18 inference that he has firearms four years later and that he's
19 going to use them. There's no evidence at any time during this
20 that -- during -- subsequent to 1997 that he ever had a firearm
21 or that he was walking around with a firearm or that he was
22 attempting to procure a firearm.
23 THE COURT: As I understand the nature of these
24 charges, they have to show that the subject matter of, I think
25 it's -- what is it, count -- two to four counts?
100
1 MR. LONDON: All five counts, Your Honor.
2 THE COURT: All five counts, that they were put in
3 fear. There's got to be a reason why you're put in fear.
4 MR. LEEN: Well, this is not a lawful reason to be in
5 fear.
6 THE COURT: I beg your pardon?
7 MR. LEEN: It's not a lawful reason for a law --
8 THE COURT: What's a lawful reason for being in fear?
9 I don't understand that term. If I'm in fear, I'm in fear.
10 MR. LEEN: It's not an admissible reason, Your Honor.
11 That's as good as I --
12 THE COURT: Well, why not?
13 MR. LEEN: Because it's asking the jury to adversely
14 draw an inference based upon what at the time was the exercise
15 of a constitutional right, and there's no evidence that he ever
16 illegally possessed a firearm.
17 THE COURT: Well, I don't know of any constitutional
18 right to threaten either directly or indirectly anybody.
19 MR. LEEN: Well, he did not directly or indirectly
20 threaten anyone. What he did by -- he merely tried to locate
21 where they lived. They drew the inference that this constituted
22 a threat. He didn't say, I'm going to kill you, I'm going to
23 blow you away, I'm going to harm your family. He never said
24 anything like that. There's no evidence that he ever said
25 anything like that.
101
1 MR. LONDON: He has done it indirectly through
2 Assassination Politics and --
3 THE COURT: I understand that.
4 MR. LEEN: That was written prior to 1995, Your Honor.
5 And he had a constitutional right to post it.
6 MR. LONDON: Your Honor, it's still on the Internet
7 today. He has never retracted it. He has never once renounced
8 it. He has never once said, you know, something, I went too far
9 with that.
10 THE DEFENDANT: Are you asking me to do that, sir?
11 MR. LEEN: He doesn't have to do that, Your Honor.
12 MR. LONDON: I ask you politely to address the court
13 directly.
14 THE COURT: To the defendant:
15 THE DEFENDANT: Is he asking me --
16 THE COURT: To the defendant:
17 THE DEFENDANT: -- to withdraw what I wrote?
18 THE COURT: Do you want to be muzzled?
19 THE DEFENDANT: I want my --
20 THE COURT: Do you want to be muzzled?
21 THE DEFENDANT: No, sir, I do not want --
22 THE COURT: Well, then, please --
23 THE DEFENDANT: -- to be muzzled in this court.
24 THE COURT: -- do not say anything until asked to.
25 THE DEFENDANT: I take that as a threat, sir. I will
102
1 be silent.
2 THE COURT: You can take it any way you want to take
3 it. But you're not running this case. We are going to try this
4 case with you or without you. Now, what do you want?
5 THE DEFENDANT: It sounds like that was another threat,
6 sir. I'm remaining silent again.
7 THE COURT: How long will it take the marshals to
8 arrange the court downstairs?
9 DEPUTY MARSHAL: Within the hour I believe we could do
10 that, Your Honor.
11 THE COURT: Now, do you want to do that? Do you want
12 to be absent from this courtroom? And absent from this
13 courtroom means you are going to conform to the rules of the
14 court. And the rules of the court do not call for you to
15 suddenly shout out to anybody.
16 THE DEFENDANT: I apologize for that in response to Mr.
17 London's remark.
18 THE COURT: That's the end of it.
19 Mr. London, who is your next witness?
20 MR. LONDON: Your Honor, we do have witnesses but there
21 are a couple of matters still to take up.
22 THE COURT: And the answer to Mr. Leen's objection --
23 if I understand it, you're objecting to the pictures?
24 MR. LEEN: Yes, Your Honor. Or evidence of --
25 THE COURT: The witnesses will be allowed to testify
103
1 what caused them to be in fear.
2 MR. LONDON: The next witness, Your Honor, is the
3 acquaintance of Mr. Bell's who was his designee for the return
4 of the weapons, and he also was familiar with Mr. Bell's
5 handling of the weapons when Mr. Bell had those weapons
6 lawfully. I would like -- even though he's not one of the
7 people in fear, I would like to show him the photo of the
8 weapons and have him identify them and say he did know about the
9 weapons.
10 MR. LEEN: The same objection, Your Honor. If the
11 court has ruled that they can testify --
12 THE COURT: Is that in chain of custody of the photo?
13 MR. LONDON: No, Your Honor. We have to lay some
14 foundation for the fact that the agents knew that Mr. Bell had
15 these weapons. There are two ways we can do that. One is
16 through Mr. East, his friend who took the weapons into his
17 possession when Mr. Bell designated him to do it. The other is
18 we can have the agents present at the search warrant where those
19 weapons were seized testify about that. The seizure of the
20 weapons.
21 MR. LEEN: We object to either.
22 THE COURT: All right. Your motion to exclude is
23 denied.
24 MR. LEEN: May we have a limiting instruction, Your
25 Honor?
104
1 THE COURT: A what?
2 MR. LEEN: A limiting instruction.
3 THE COURT: No, let's go specifically.
4 MR. LEEN: I would ask that the court instruct the jury
5 that the receipt of the firearms into evidence or discussion of
6 them merely goes to the state of mind of the people who are
7 alleged to be victims of the counts in the indictment and you
8 should draw no adverse inference from the fact that Mr. Bell had
9 these weapons at a time when it was perfectly lawful for him to
10 have them.
11 MR. LONDON: I don't have any objection to that.
12 THE COURT: Will you put the limiting instruction, so
13 we have no problem with this, put that limiting instruction in
14 writing.
15 MR. LEEN: Yes, sir.
16 Thank you.
17 MR. LONDON: Your Honor, the other matter I have to
18 take up --
19 THE COURT: Just write it out.
20 MR. LEEN: Yes, sir.
21 THE COURT: Yes?
22 MR. LONDON: There are still two subpoenas that Mr.
23 Bell has asked be served upon government individuals. One is
24 Joanne Maida, who is in the U.S. Attorney's office at present.
25 The other is Annmarie Levins, who was once in the U.S.
105
1 Attorney's office and is no longer. I would ask for a proffer
2 of the relevance of the testimony of those individuals. I don't
3 believe that their testimony is relevant and necessary. Both
4 are anxious to learn whether they need to appear here or not.
5 THE COURT: Mr. Leen.
6 MR. LEEN: I will submit -- Your Honor, there is no
7 requirement in the rules that in-district subpoenas be submitted
8 and issued on a condition of prior showing of materiality. If
9 -- the court has required that I do this as to other witnesses,
10 so we will, if the court is going to adhere to its prior
11 rulings, we will do that for these witnesses also.
12 THE COURT: Since the motion is now before me, I'm
13 asking you to make a showing now, oral, why these two witnesses
14 should not be released. Now.
15 MR. LEEN: All right. Yes, sir.
16 Ms. Maida was subpoenaed because she was the prosecutor of
17 the case of United States versus Ryan Lund. Mr. Bell's belief
18 is that if I question Ms. Maida, there will be evidence of the
19 fact that there was an agreement made between Mr. Lund and the
20 government that in exchange for him committing illegal acts
21 against Mr. Bell that he would -- he would -- he would
22 receive -- Mr. Lund would receive consideration in his
23 sentencing, and he in fact received consideration in his
24 sentencing from the government.
25 Mr. Bell also would indicate that he would like to
106
1 conference with me so that we could discuss this further.
2 THE COURT: The two -- who were the two that were --
3 MR. LONDON: Joanne Maida, who is an assistant U.S.
4 attorney at present, and Annmarie Levins, who was once an
5 assistant U. S. Attorney, who is no longer with the office.
6 THE COURT: Make an offer of proof as to that person,
7 Levins.
8 MR. LEEN: Ms. Levins was the prosecutor for Mr. Bell
9 in his 1997 prosecution, and she is aware also of this illegal
10 arrangement with Ryan Lund and the government.
11 MR. LONDON: Your Honor, my response to this is --
12 THE COURT: If I understand the situation, Mr. Lund was
13 also incarcerated at the same place that Mr. Bell was?
14 MR. LEEN: They were. Not now. This was back in --
15 prior to 1997.
16 THE COURT: Whenever it was.
17 MR. LEEN: Yes, sir, they were. At the Federal
18 Detention Center.
19 THE COURT: Was Mr. Lund ever at any other instance
20 incarcerated with Mr. Bell?
21 MR. LEEN: No.
22 THE COURT: Other than this one time?
23 MR. LEEN: No.
24 THE COURT: It sounds to me just like two people
25 incarcerated got in a fight and Mr. Bell lost it. These two
107
1 witnesses --
2 MR. LEEN: Mr. --
3 THE COURT: Pardon?
4 MR. LEEN: Mr. Bell would like me to add that he would
5 like to have a further discussion with me on this point. And
6 he's -- he is insisting that we have a conference, Your Honor.
7 THE COURT: Those two persons are released.
8 (Defendant pounds on table once very loudly.)
9 THE COURT: Are we ready for the witnesses?
10 MR. LEEN: I'm just finishing the limiting instruction,
11 Your Honor.
12 THE CLERK: Mr. Lund, I think you guys wanted to take
13 up Exhibit 51. That's the transcript.
14 MR. LONDON: Yes. Your Honor, at the close of business
15 yesterday you indicated that you would be admitting Exhibit 51
16 and that I should offer it in the presence of the jury this
17 morning.
18 THE COURT: Yes.
19 MR. LONDON: In the meantime, Mr. Leen noted that there
20 is some material in there that should probably be redacted. So
21 he and I are going to do that during a recess, and then I will
22 offer that exhibit after the redactions have occurred.
23 THE COURT: Mr. Bell.
24 THE DEFENDANT: Yes.
25 THE COURT: I see that you're having problems
108
1 controlling your temper.
2 THE DEFENDANT: No, actually I'm --
3 THE COURT: All you're going to do is get in trouble.
4 And you will lose this one.
5 THE DEFENDANT: Are you asking for an answer or not?
6 THE COURT: I'm not asking for an answer. I'm telling
7 you.
8 Now, if you want those two United States marshals to stand
9 right behind you, say so.
10 THE DEFENDANT: I'm wondering --
11 THE COURT: Because I'm now starting to begin to not to
12 trust you to do anything.
13 THE DEFENDANT: Can I respond?
14 THE COURT: No.
15 The very next time you do anything that appears to this
16 court as a threat to your attorney or anyone else in this
17 courtroom, including yourself, I'm going to have you excluded.
18 Do you understand that?
19 Do you understand what I said?
20 THE DEFENDANT: I guess you asked a question. A
21 threat --
22 THE COURT: Did you understand what I said?
23 THE DEFENDANT: I'm not sure what you mean by the word
24 threat. If you could please be more specific.
25 THE COURT: To the marshals: Will you prepare the room
109
1 downstairs?
2 DEPUTY MARSHAL: Yes, Your Honor.
3 THE COURT: See that it is prepared.
4 DEPUTY MARSHAL: Yes, Your Honor.
5 MR. LEEN: May I approach the court, or I will read to
6 the court what I have written and then approach the court.
7 THE COURT: Yes.
8 MR. LEEN: The limiting instruction that I have shown
9 to the prosecutor, which Mr. London says is acceptable.
10 You are about to, or you have -- depending on when the court
11 gives the instruction -- heard evidence that prior to 1997 the
12 defendant was in lawful possession of several firearms. The
13 court instructs you that this evidence is being admitted for a
14 limited purpose; that is, as evidence as to the reasonableness
15 of the state of mind of the alleged victims. You should not
16 consider this evidence for any other purpose.
17 I don't know if you can read my writing, but I have done my
18 best.
19 THE COURT: To the defendant, Mr. Bell.
20 THE DEFENDANT: Excuse me. I'm sorry, Your Honor.
21 THE COURT: Move over to that other chair.
22 THE DEFENDANT: Excuse me?
23 THE COURT: Move to the chair next to the end of the
24 table.
25 THE DEFENDANT: Next to the end of the table.
110
1 THE COURT: That one.
2 THE DEFENDANT: Okay.
3 THE COURT: No. I want you out of arm's reach of your
4 attorney.
5 THE DEFENDANT: Why is that, sir, please?
6 THE COURT: I just told you.
7 THE DEFENDANT: It's hard for me to hear him.
8 THE COURT: The marshals can station themselves where
9 they wish. No more flailing your arms.
10 THE DEFENDANT: What?
11 THE COURT: I said no more flailing of your arms for
12 any reason, or pounding the table.
13 Do you understand what I just said?
14 Yes, Mr. Leen?
15 Mr. Leen: I was wondering if the court would consider
16 instead of having Mr. Bell sit there, that he be cuffed by his
17 ankles to the chair next to me so that the jury wouldn't see it
18 and everything would appear as it did yesterday?
19 THE COURT: No. If you wish to discuss it, you can
20 move over.
21 MR. LEEN: All right. Yes, sir.
22 THE COURT: Ready for the jury?
23 MR. LEEN: I would like to file a handwritten motion
24 that the defendant has prepared.
25 You will recall that yesterday I mentioned that Mr. Bell had
111
1 heard the court say that after the prosecution gives its opening
2 statement, the defendant will be allowed to give an opening
3 statement. The defendant has asked that we move for a mistrial
4 because he was not personally allowed to give an opening
5 statement, and I --
6 THE COURT: That will be denied.
7 MR. LEEN: -- reduced it to writing.
8 THE COURT: File it. It will be denied.
9 MR. LEEN: Thank you.
10 THE COURT: Are we ready for the jury now?
11 MR. LEEN: Yes.
12 MR. LONDON: I have just one question before we bring
13 in the jury, Your Honor, and that is what is the status or the
14 effect of the defendant's notice of appeal interlocutory?
15 THE COURT: I have received nothing from the Ninth
16 Circuit.
17 MR. LEEN: We received a notice that they had received
18 the pleading and they said they -- the notice and they have set
19 a briefing schedule.
20 THE COURT: I have had no notice to stop the
21 proceedings, which will continue.
22 Ready for the jury?
23 MR. LONDON: Yes, Your Honor.
24 THE COURT: Call the jury.
25 (Jury present; 10:10 a.m.)
112
1 THE COURT: Good morning.
2 (Jury responds "Good morning.")
3 THE COURT: Let the record reflect all members of the
4 jury are present.
5 Next witness.
6 MR. LONDON: Call Robert East.
7 ROBERT WILLIAM EAST, PLAINTIFF'S WITNESS, SWORN
8 THE CLERK: Please state your full name and spell your
9 last name.
10 THE WITNESS: Robert William East. That's E-a-s-t.
11 DIRECT EXAMINATION
12 BY MR. LONDON:
13 Q. Mr. East, good morning. I want to begin by asking you if
14 you know the defendant in this case, James Dalton Bell?
15 A. Yes, I do.
16 Q. How would you characterize your relationship with him?
17 A. I've been friends with him for about 15 years.
18 MR. LONDON: Your Honor, I believe at this point it
19 would be appropriate to give the limiting instruction.
20 THE COURT: Well, why don't you go through it, and then
21 I will give the limiting instruction.
22 MR. LONDON: All right.
23 Q. (By Mr. London) Mr. East, are you aware of any possession
24 or ownership of firearms by the defendant?
25 MR. LEEN: Objection, Your Honor.
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1 THE COURT: Overruled.
2 MR. LEEN: May I -- rather than interrupt the
3 testimony, may I have a continuing objection to this line of
4 testimony, Your Honor?
5 THE COURT: Overruled. Continue.
6 A. Yes. In November, I believe it was, I picked up some
7 weapons that were in the custody of the Internal Revenue Service
8 from the Federal Building over in Portland, Oregon. There were
9 two SKS 762 by 39 millimeter rifles, a Smith and Wesson, I
10 believe it was a model 629 .44 magnum handgun, and a Rugar mini
11 14, 223 caliber rifle.
12 Q. (By Mr. London) Why did you pick these items up from the
13 government?
14 A. I was designated by Mr. Bell to pick them up.
15 Q. On his behalf?
16 A. That's correct.
17 Q. All right. On your screen, I would like you to see what
18 should now be published as Government's Exhibit 276. Do you
19 have that in front of you?
20 A. Yes, I do.
21 Q. All right. Can you identify that or tell us what that is?
22 A. Yes. Those look like the weapons that I picked up.
23 Q. Okay. And moving left to right, can you say which weapons
24 are which?
25 A. Okay. Well, there's, on the left, there's an SKS rifle.
114
1 The middle rifle is an SKS rifle with a bayonet on it. The one
2 on the right is a Rugar mini 14 ranch rifle. And then the Smith
3 and Wesson handgun is down at the bottom.
4 Q. Now, have you ever seen Mr. Bell in possession of any of
5 these weapons prior to the time that he went to prison?
6 A. Just the ranch rifle and one of the SKS's. I think it was
7 the one without the bayonet.
8 MR. LEEN: Two questions. I can't see the monitor
9 facing the jury. Is the monitor on?
10 I object, Your Honor. I thought that the court had said
11 that the picture could not be shown to the jury.
12 THE COURT: It may be shown.
13 MR. LEEN: I will just adopt the motion -- the
14 arguments I made prior.
15 THE COURT: All right.
16 MR. LEEN: I would ask the limiting instruction be
17 given.
18 THE COURT: It will be shown to the jury. The limiting
19 instruction will be given at the proper time.
20 MR. LEEN: May I -- I have a motion to make outside the
21 jury's presence. May I reserve it until the next break?
22 THE COURT: Any further direct examination of this
23 witness?
24 MR. LONDON: Yes, but not on the gun. The guns.
25 THE COURT: Continue.
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1 You will be heard.
2 MR. LEEN: Okay. I will wait until the court allows.
3 Q. (By Mr. London) Mr. East, there are some exhibit notebooks
4 there on the table, and on the spines you will see there are
5 some exhibits numbers indicating which exhibits are in which
6 books. If you could open the binder that would include Exhibits
7 20 and 21. I would like you to turn to those. Look first, if
8 you would, at Exhibit 20 and tell us what those are.
9 A. No, there's just a -- it looks like an email.
10 Q. I'm sorry, 21 first.
11 A. Oh, I'm sorry. 21. Okay.
12 Okay. This -- yeah, this is a set of lock picks that belong
13 to me.
14 MR. LEEN: Objection, Your Honor. Relevance. 403.
15 THE COURT: Overruled.
16 Q. (By Mr. London) Can you tell us how you got ahold of these
17 lock picks?
18 A. I purchased them.
19 Q. And did you ever share them with Mr. Bell?
20 A. Actually, I gave him a tension wrench from this set and, I
21 believe it was, one lock pick.
22 Q. And did he ever tell you whether or not he had tried them
23 out or was using them?
24 A. Yes. In fact, he -- he and I both opened my front door --
25 MR. LEEN: Objection, Your Honor, as to -- I would like
116
1 to have a time that this was done so I could ask.
2 MR. LONDON: That's a fair enough question.
3 Q. (Mr. London) When was this that you shared them with Mr.
4 Bell?
5 A. Well, let's see. To give an exact date, I really couldn't
6 give you an exact date. It was on a visit that he made to my
7 house prior to one of my trips to sea and just after I bought
8 these, but I couldn't give you a date exactly when I bought
9 them.
10 Q. Okay. Let's do it this way. Why don't you look at the
11 other exhibit I asked you about, which is Exhibit 20.
12 A. Okay.
13 Q. Email. Do you recognize that?
14 A. Yes.
15 Q. Okay. What is that? Can you tell the jury what that email
16 is?
17 A. This says it's an email that he sent to me, it looks like,
18 when I was working on the Sealand Reliance.
19 Q. Okay. And what is the date of that email?
20 A. The date of that email is the 24th of June 1996.
21 Q. All right. So does it stand to reason then that you
22 probably shared the lock picks with him prior to that, given the
23 subject matter?
24 A. Yes, that would have to have been before that, yeah.
25 MR. LONDON: All right. I offer Exhibit 20, and I
117
1 offer 21.
2 MR. LEEN: I object to both. 20 for the reasons
3 previously stated regarding other emails. This is prior to the
4 1997 conviction. And the -- 21, the picture of the lock picks,
5 because -- it's under 403.
6 THE COURT: Both motions as to 20 and 21 are denied.
7 20 and 21 are admitted.
8 (Exhibits Nos. 20 and 21 were admitted.)
9 Q. (By Mr. London) Mr. East, if you would just look at the
10 email and just read the first full paragraph of that.
11 A. It says, "I tried the lock picks on my side door; got
12 through them in a couple of minutes. The lock was a little
13 'gummier' than yours, but that makes sense because it's at
14 least eight years old and probably much older. Your lock is
15 only a couple of years old, as I recall. (I haven't tried my
16 front door, yet.)"
17 Q. Okay. Mr. East, then you continued to have some kind of
18 correspondence with Mr. Bell even after he went to federal
19 prison on his federal conviction in this district, correct?
20 A. That is correct.
21 Q. What was the nature of that correspondence?
22 A. Oh, we -- you know, we exchanged letters periodically.
23 Q. Did he ever ask you to track down names and addresses of
24 people for him on his behalf from prison?
25 A. Yes, he did on a couple of occasions, and I just took the
118
1 letters and wadded them up and threw them in the trash can.
2 Q. Did he tell you what the purpose was of his request that you
3 track down home addresses for people?
4 A. Well, I think he said at the time that he suspected these
5 people of being workers for the government or somebody that was
6 spying on him or something. I'm not really sure exactly.
7 MR. LONDON: Thank you. Nothing further.
8 THE COURT: Cross-examination.
9 MR. LONDON: Thank you.
10 CROSS-EXAMINATION
11 BY MR. LEEN:
12 Q. Mr. East, you have indicated that you have been a friend of
13 Mr. Bell for approximately 15 years.
14 A. That's approximately correct, yes, sir.
15 Q. So going back to 1985, 1986?
16 A. Around that time. '84, '85, '86. I'm not really sure
17 exactly.
18 Q. And you indicated you picked up the weapons that were shown
19 on the monitor.
20 A. That's correct.
21 Q. In November. November of what year?
22 A. Last year.
23 Q. November of 2000?
24 A. Yes.
25 Q. And the government released those to you?
119
1 A. They did.
2 Q. How did you become aware of that fact?
3 A. Mr. Bell instructed me to go over and pick them up.
4 Q. All right. And where did you go?
5 A. I went over to the federal building in downtown Portland.
6 Q. Did Mr. Bell tell you how he knew that you could get them?
7 A. He gave me a, a paper, I think it was like a fax, that had
8 something to do with the guns, and said go to this address and
9 get them. And he -- and also, I was supposed to -- well, I had
10 to call Jeff Gordon at the IRS to make arrangements to pick them
11 up.
12 Q. And do you know who Jeff Gordon is?
13 A. Yes. Jeff Gordon is the gentleman sitting at the
14 prosecutor's table right there.
15 Q. That gentleman right there?
16 A. Yes, sir.
17 Q. And did you meet with him?
18 A. Yes, sir, I did. I met with Jeff Gordon and his partner,
19 whose name I don't know, and then they had me sign a paper
20 stating that I wouldn't give the weapons to Mr. Bell, you know,
21 to his person, and as per some --
22 Q. Regulation?
23 A. Right. Right. Title 17 or title something, anyway. And so
24 then I signed that, and then Mr. Gordon and his partner assisted
25 me with taking the weapons down, out the front door, and across
120
1 the street where I had my car parked. And that was down at
2 Sixth and Jefferson in Portland, I believe, is where the federal
3 building is.
4 Q. And so they gave them to you?
5 A. Yes, they did.
6 Q. What did you do with the weapons?
7 A. Well, I took them to my house, and then I -- since I'm in
8 and out of the area, I took them to some friends so that they
9 wouldn't be in my house so somebody could take off with them.
10 Q. Do you have weapons in your house?
11 A. At the present time, I have exactly one.
12 MR. LONDON: Your Honor, I object. It's a relevancy
13 objection. Where is this leading to?
14 THE COURT: Sustain the objection.
15 Q. (By Mr. Leen) Who did you give the weapons that Mr. Bell --
16 Mr. Bell had asked you to pick up some weapons, and they were
17 given to you by the IRS agent Jeff Gordon.
18 A. That's correct.
19 Q. And then you said you gave them to someone else.
20 A. Well, I gave -- had given them to some other people first.
21 MR. LONDON: Same objection, Your Honor. I just don't
22 see where it's going.
23 THE COURT: Same ruling. Sustained.
24 MR. LEEN: May I make a proffer, Your Honor?
25 THE COURT: No. Later.
121
1 Q. (By Mr. Leen) Did you ever give the weapons to Mr. Bell?
2 A. No.
3 Q. Have you ever seen -- do you have any knowledge of Mr. Bell
4 ever obtaining possession of the weapons after you got them from
5 the IRS?
6 A. No way.
7 Q. Now, you indicated that you had purchased prior, sometime in
8 1996, a set of lock picks.
9 A. That's correct.
10 Q. And where did you get those?
11 A. I got them from a place down in -- someplace down in
12 Oregon. I think it was down in Corvallis, Oregon. They
13 advertise in a magazine.
14 Q. And why did you buy them?
15 A. Oh, I wanted a set. I wanted to try them out, see, you
16 know, how hard it was to go through my front door. And I also
17 wanted to see if it was possible to open the doors of my car. I
18 have locked myself out of it several times, and -- well, at
19 least the car I had at that time. So that's the reason I bought
20 them.
21 Q. How did Mr. Bell find out that you had this set of lock
22 picks?
23 A. Well, I told him.
24 Q. Why did you tell him?
25 A. I thought he would be interested.
122
1 Q. And why was that?
2 A. We're both curious people.
3 Q. Other than the email that Mr. Bell sent you, do you have any
4 evidence or knowledge that he has ever used them?
5 A. Well, yeah, I saw him open my front door with them, you
6 know. Under, you know, my supervision.
7 Q. Did he return the lock pick to you that you had lent him?
8 A. I don't remember him ever returning it, no. He had a lock
9 pick and the tension wrench because you have to have both in
10 order to, you know, in order to make them work.
11 Q. So you never had the tension wrench, so you could never use
12 your set again, is that what you are trying to say?
13 A. No, no. There were two tension wrenches that came in the
14 set, and there -- well, I don't remember how many picks there
15 are, but there are quite a number of picks in there.
16 Q. And this was back in 1996?
17 A. Yes.
18 Q. Have you had any discussion with Mr. Bell about those since
19 then?
20 A. Not really, no.
21 Q. How about after he was released -- how about after his
22 conviction in 1997?
23 A. No, uh-uh. We never talked about it.
24 Q. Now, you say that Mr. Bell had talked to you or written
25 letters to you while he was incarcerated about people spying on
123
1 him.
2 A. Yes. He -- he wrote me a letter about his -- it was his
3 next-door neighbor, I think, to the east.
4 Q. And did he identify that person?
5 A. He gave me some name. I don't remember what it was.
6 Q. Could it have been Saban?
7 A. Yeah, that sounds familiar.
8 Q. And what did he tell you about that individual, do you know?
9 A. Well, he had quite a litany on it. Something about there
10 were a number of people that he was investigating, I think, by
11 that name, and some property at various places. You know, it's
12 kind of fuzzy because I wasn't really interested and so I
13 didn't -- you know, I just really don't remember a whole lot
14 about it.
15 Q. Do you --
16 A. I'm sorry, it was something that just didn't interest me,
17 so.
18 MR. LEEN: One second, Your Honor, if I might?
19 No further questions. Thank you, Your Honor.
20 THE COURT: Redirect.
21 REDIRECT EXAMINATION
22 BY MR. LONDON:
23 Q. Mr. East, did Mr. Bell ever discuss making the chemical
24 nerve agent Sarin with you?
25 A. Yes.
124
1 MR. LEEN: Objection, Your Honor. Outside the scope of
2 cross.
3 THE COURT: Do you want to recall him?
4 MR. LONDON: I would like to recall him.
5 THE COURT: All right.
6 MR. LEEN: Objection. 403 evidence, Your Honor.
7 THE COURT: The witness is recalled.
8 FURTHER DIRECT EXAMINATION
9 BY MR. LONDON:
10 Q. What was the nature of your discussion with Mr. Bell about
11 his making of the chemical nerve agent Sarin?
12 A. Oh, we discussed it a couple of times, and at one point I
13 asked him to show me the precursors to it, and he said that,
14 well, he had misplaced them, so.
15 Q. What do you mean by precursors?
16 A. Well, the chemicals that are required to manufacture it
17 are two. One of them is methylphosphonyl difloride, and the
18 other one is isopropyl alcohol. And he said that he didn't know
19 where the methylphosphonyl difloride was. So I just presumed
20 that it was BS.
21 Q. That what was BS?
22 A. Well, that he had that precursor chemical.
23 Q. Did you in fact once go to the library to look up
24 information on Sarin with him?
25 A. Oh, yeah, we went over to the Reed College library and
125
1 looked up a whole bunch of stuff on that and all the other
2 chemicals of similar nature.
3 Q. Was this before or after the attack on the Tokyo subway
4 system?
5 MR. LEEN: Objection, Your Honor. I have -- I move to
6 strike, and I also have another motion to make outside the
7 jury's presence in regard to --
8 THE COURT: On the question of the Tokyo subway, it
9 will be granted.
10 MR. LEEN: May I ask that the jury be instructed to
11 disregard that?
12 THE COURT: The jury will disregard the last question
13 of the prosecutor.
14 MR. LONDON: I withdraw that.
15 Thank you, Your Honor. No further questions.
16 THE COURT: Any cross-examination on the recall?
17 MR. LEEN: Yes, Your Honor.
18 FURTHER CROSS-EXAMINATION
19 BY MR. LEEN:
20 Q. Mr. East, when was this discussion regarding Sarin? If you
21 don't remember a month, maybe a year.
22 A. Oh, it's -- well, let's see. It was -- gosh, it's been ages
23 ago. I mean, it was like in the early '90s, I would say. '94,
24 '95, '96, maybe. I'm not sure. We've had a number of
25 discussions in that area, but it's been -- you know, it was one
126
1 of those curiosity things again.
2 MR. LEEN: No further questions. Thank you.
3 THE COURT: All right. The witness may be excused?
4 MR. LEEN: No objection by the defendant.
5 THE COURT: Step down, sir.
6 THE WITNESS: Thank you.
7 (Witness excused.)
8 THE COURT: Members of the jury: You have heard
9 evidence that prior to 1997 the defendant was in lawful
10 possession of several firearms. The court instructs you that
11 this evidence is being admitted for a limited purpose; that is,
12 as evidence as to the reasonableness of the state of mind of the
13 alleged victims. You should not consider this evidence for any
14 other purpose.
15 Next witness.
16 MR. LONDON: Chris Groener.
17 THE COURT: All right.
18 CHRISTOPHER JOHN GROENER, PLAINTIFF'S WITNESS, SWORN
19 THE CLERK: Please state your full name and spell your
20 last name.
21 THE WITNESS: Christopher John Groener.
22 G-r-o-e-n-e-r.
23 DIRECT EXAMINATION
24 BY MR. LONDON:
25 Q. Mr. Groener, good morning. Can you begin, please, by
127
1 telling us where you live?
2 A. I live at 14135 South Clackamas River Drive in Oregon City,
3 Oregon.
4 Q. And do you know that residence to be the former residence of
5 Mike McNall, ATF agent?
6 A. I do.
7 Q. All right. Do you actually know Mike McNall personally?
8 A. I do.
9 Q. How do you know him?
10 A. I met him through a former girlfriend of mine.
11 Q. All right. Now, in October last, specifically October 23rd,
12 2000, around 5:30 in the evening, did you have an opportunity to
13 come into any kind of contact with anybody you see here in the
14 courtroom today?
15 A. I did.
16 Q. With whom?
17 A. The gentleman sitting in the blue shirt.
18 Q. All right.
19 A. At the table.
20 MR. LONDON: Let the record reflect the identification
21 is of the defendant.
22 Q. (Mr. London) Will you please tell the jury how you first
23 came into contact with the defendant on October 23rd at 5:30?
24 A. I had come home from work at approximately 5:30 in the
25 evening, was talking on my cell phone, pulled into my driveway,
128
1 and looked up, and Mr. Bell was coming from between the --
2 beyond my house, between the shed and the deck, actually, and I
3 asked him if I could help him at that point.
4 Q. Did you say you was coming -- excuse me. Did you say you
5 were coming home from work?
6 A. Yes.
7 Q. And where did you park your car?
8 A. In my driveway, so to speak. It's just a small gravel kind
9 of area in front of my house.
10 Q. All right. And do you have the image in front of you that
11 is on the monitor here that the jury can see?
12 A. I do.
13 Q. All right. Is this image an accurate aerial depiction, as
14 far as you can tell, of the property where you currently live?
15 A. Yes.
16 Q. And how many residences are on the property?
17 A. Two.
18 Q. Is one of them yours?
19 A. Yes.
20 Q. Which one?
21 A. The one to the left on the screen.
22 Q. All right. And to whom does the other residence belong? Or
23 who occupies the other residence?
24 A. The Andrews.
25 Q. Okay. When you say that the -- all right. This is another
129
1 image. I want you to look at this one, please, and tell us what
2 this appears to be.
3 A. It is our farm with both residences to the left of the
4 screen there.
5 Q. All right. Can you tell the jury how far from the road
6 those two residents -- residences, excuse me -- the homes are?
7 A. Approximately 100 yards, I would say.
8 Q. So the property line is out by the road, is that correct?
9 A. Say again, please?
10 Q. Is the property line out by the road? Does it begin by the
11 road?
12 A. Oh, yes.
13 Q. Using this pointer, is this the driveway here, as I'm
14 tracking it here?
15 A. It is.
16 Q. All right. So is it your testimony that you came home at
17 5:30 and that you parked here?
18 A. Actually, that's the Andrews driveway. Continue on. Right
19 there.
20 Q. Okay.
21 A. Where the arrow is.
22 Q. Okay.
23 A. Right there.
24 Q. Where was the defendant? When you --
25 A. He was.
130
1 Q. When you first got out of the car, where did you see him
2 first?
3 A. He was, if you can see the second house sort of set back,
4 and then set back a little further is a very small shed. He was
5 between the shed and the house.
6 Q. All right. So he came around between the shed and the
7 house. And did you speak with him?
8 A. I did. I --
9 Q. What did you say?
10 A. I asked if I could help him.
11 Q. When you came in down the driveway yourself, did you notice
12 his car?
13 A. I did.
14 Q. What did you think of that?
15 MR. LEEN: Objection.
16 Q. (By Mr. London) Did you recognize the car?
17 THE COURT: Pardon?
18 MR. LEEN: I objected, Your Honor.
19 THE COURT: He may answer. Overruled.
20 Q. (By Mr. London) Did you recognize the car?
21 A. I did not.
22 Q. All right. Did you recognize the defendant when you saw him
23 come around the side of your house?
24 A. I did not.
25 Q. You had never seen him before?
131
1 A. No.
2 Q. What did you say to him?
3 A. I said, "Can I help you?"
4 Q. What did he say?
5 A. He asked if this was the residence of Mike McNall.
6 Q. What did you say?
7 A. I said, "No, it's not."
8 Q. What did he answer?
9 A. He inquired as to how long he had been -- had moved out of
10 the residence.
11 Q. And what did you say?
12 A. I said, "He hasn't lived here for some time."
13 Q. And what did he answer?
14 A. He asked -- continued to question, asked if I knew where he
15 currently lived.
16 Q. Where Mike McNall currently lived?
17 A. Uh-huh.
18 Q. Do you happen -- did you happen to know at that time where
19 Mike McNall currently lived?
20 A. I did.
21 Q. Did you tell the defendant?
22 A. I did not.
23 Q. Did you ask him why he wanted to know?
24 A. I did.
25 Q. What did he say?
132
1 A. After some hesitation, and it seemed as if some agitation,
2 he said he was an acquaintance of Mr. McNall.
3 Q. You weren't here, but Mr. Leen in the opening statement told
4 the jury --
5 MR. LEEN: Objection, Your Honor. Improper question.
6 Just the form is improper.
7 Q. (By Mr. London) How would you characterize the defendant's
8 demeanor or mood when he was questioning you, when you were
9 asking him questions about why he wanted to know this
10 information?
11 A. He seemed to be rather agitated that I was not forthcoming
12 with, with the questions that he was asking, and somewhat
13 flustered that I was responding and inquiring as to who he was
14 and what he was doing there.
15 Q. Did he ask you who lived in the other residence, or --
16 A. He actually just stated, "Is this the Andrews residence
17 there?" and pointed -- or actually, he said, "I see from the
18 mailbox that this is the Andrews residence," and pointed at the
19 second home. And I said, "Yes, it is."
20 Q. And you're familiar with that mailbox, is that correct?
21 A. Yes, sir.
22 Q. Is the name Andrews on the mailbox?
23 A. No, sir.
24 Q. In fact, didn't you double check after he had left to go
25 make sure the name Andrews is not on the mailbox?
133
1 A. Yes, sir.
2 Q. Were the Andrewses home at the time, as far as you knew?
3 A. They were not.
4 Q. Was that pretty much the sum and substance of your
5 conversation?
6 A. Largely, yes.
7 Q. What did he do after the conversation broke up?
8 A. Well, I -- before the conversation broke up, I said, I asked
9 him if I could get his name and phone number and possibly pass a
10 message along to Mr. McNall. He hesitated, and then finally did
11 give me the phone number, and I wrote that down on a piece of
12 paper. He then went to his car and sat down and began writing
13 on a piece of paper, and as he walked by my car, he made sure he
14 noted -- it looked as if he noted my license plate number. And
15 in my estimation, that was what he was writing down.
16 MR. LEEN: Objection, Your Honor. It calls for a
17 conclusion of the witness.
18 THE COURT: He may answer. You can cross-examine him
19 on it.
20 Q. (Mr. London) Did he go back to his car?
21 A. He did.
22 Q. Where was the car parked?
23 A. It was parked just adjacent to the Andrews property, or
24 Andrews carport.
25 Q. Okay. I'm going to use this pointer device here. Well, not
134
1 very -- somewhere here.
2 A. Right there.
3 Q. All right. So he sat in his car. How long did he sit in
4 his car on the property?
5 A. At least three to five minutes. I, I -- as he got into his
6 car, I felt a bit uncomfortable, and so I watched him get into
7 the car, and as I saw him write down information and not leave
8 immediately, I decided to go ahead and walk up the driveway and
9 go to the mailbox and get the mail for the day. I was able to
10 go the entirety of the approximately 100 yards to the mailbox,
11 which is at the -- on the road at the top of the driveway, and
12 turn around and come about a third of the way back before he
13 finally did pass me and leave the property.
14 Q. You testified you saw him writing something down.
15 A. Yes, sir.
16 Q. What was he writing down?
17 A. I don't know.
18 Q. Did he -- did you see him make a point of looking at the
19 cars that were parked on the property?
20 A. I did.
21 MR. LONDON: Nothing further.
22 THE COURT: Cross-examination.
23 CROSS-EXAMINATION
24 BY MR. LEEN:
25 Q. Mr. Groener, are you employed by the federal government?
135
1 A. No, sir.
2 Q. Approximately how long before this date, October 23rd, 2000,
3 did Mr. McNall live at the residence?
4 A. I couldn't answer for sure, but my best guess would be four
5 years.
6 Q. Four years prior?
7 A. Yes.
8 Q. And you had lived there for how long?
9 A. About six months.
10 Q. So there were at least one other resident of the premises
11 between Mr. McNall and you.
12 A. Yes, sir.
13 Q. All right. You indicated you saw Mr. Bell come from around
14 the back of your house.
15 A. Yes, sir.
16 Q. You felt he was startled by you being there.
17 A. Startled or agitated, yes.
18 Q. Did you tell the -- were you interviewed by Special Agent
19 Gordon in connection with this on October 27th?
20 A. I couldn't testify to the exact date, but sometime
21 thereafter, yes.
22 Q. A few days later?
23 A. Yes.
24 Q. A week; a few days to a week later?
25 A. I really couldn't say if it were that soon, but sometime
136
1 after.
2 Q. Do you recall telling him that Mr. Bell appeared to be
3 startled by your presence?
4 A. I don't know if I said startled exactly, but he was
5 definitely not expecting me to show up while he was coming from
6 behind my house, in my opinion.
7 Q. But he didn't say that.
8 A. No, sir.
9 Q. Mr. Bell stated, "I'm looking for Mike McNall."
10 A. Yes, sir.
11 Q. And you told him, "Well, Mr. McNall doesn't live here."
12 A. Yes, sir.
13 Q. And then at that point, Mr. Bell asked you how long had you
14 lived there and how long had it been that Mr. McNall had not.
15 A. Yes, sir.
16 Q. Is that right?
17 And then you asked Mr. Bell what all of this is about. Is
18 that correct?
19 A. I don't know if I asked him what it was all about. I asked
20 him if I could help him with anything, something to that effect,
21 as I recall.
22 Q. And Mr. Bell stated he was an acquaintance.
23 A. Hm-hmm. Yes.
24 Q. And you asked Mr. Bell for a card.
25 A. Yes.
137
1 Q. He said he did not have one.
2 A. Yes.
3 Q. So you asked him his name.
4 A. Yes.
5 Q. And he said Jim Bell.
6 A. Yes. Actually, I believe he -- yes, he said Jim, not
7 James.
8 Q. But he gave the last name Bell, also.
9 A. Yes, sir.
10 Q. And he also gave you a phone number.
11 A. He did.
12 Q. And that number was (360) 696-4308.
13 A. I couldn't -- I don't remember at the time, but I did write
14 it down on a piece of paper.
15 Q. And did you show that to the case agent?
16 A. I did.
17 Q. And at that point, Mr. Bell asked you if this was the
18 Andrews property, pointing to the adjacent house?
19 A. Actually, he said, "I see from the mailbox that this is the
20 Andrews property."
21 Q. Do you recall telling the agent, he asked you if this was
22 the Andrews property, and you confirmed that it was?
23 A. Yes, sir.
24 Q. Then you asked Mr. Bell to leave.
25 A. Yes, sir.
138
1 Q. And he walked to his vehicle. You felt that he was looking
2 at license plate numbers as he did so.
3 A. Very much so. He made -- it seemed to me to make it a point
4 to walk past my car and stare at my license plate, as well as
5 the -- continue on to his car and sort of immediately start
6 writing something down.
7 Q. All right. Now, were you on the cell phone at the time?
8 A. I was.
9 Q. And did you call the cell phone -- on the cell phone, did
10 you tell the person who you were talking to Mr. Bell's tag
11 number?
12 A. Yes, I did.
13 Q. And then Mr. Bell left the premises, is that correct?
14 A. Not immediately, but soon thereafter.
15 Q. He didn't threaten you, did he?
16 A. No, sir.
17 Q. Did you see any weapons in his vehicle or weapons on his
18 person?
19 A. No, sir.
20 Q. There's a sign -- there is not a "no trespassing" sign on
21 the driveway, is there?
22 A. At the time there was a sign that said private drive.
23 Q. Did it say no trespassing?
24 A. No, sir.
25 MR. LEEN: One second, please.
139
1 Q. (By Mr. Leen) Just one other question, Mr. Groener. When
2 you were speaking on your cell phone, when did you initiate the
3 call? Was it before or after you saw Mr. Bell?
4 A. Before.
5 MR. LEEN: Thank you. No further questions.
6 THE COURT: Redirect.
7 REDIRECT EXAMINATION
8 BY MR. LONDON:
9 Q. I just want to clarify your last answer. Are you saying
10 that you were on the cell phone as you were driving into your
11 driveway on -- in your own driveway?
12 A. Yes, sir.
13 Q. So did you tell the person you were on the phone with that
14 there was someone on the property?
15 A. Yes, sir.
16 Q. What did you say?
17 A. I said, "Hold" -- or ", Let me let you go. There's somebody
18 coming from behind my house. It seems rather strange."
19 Q. All right. You mentioned that you observed Mr. Bell's own
20 license number. Were you on the phone when you did that as you
21 were walking up the road?
22 A. I was.
23 Q. And did you report that to your friend?
24 A. I did.
25 Q. Do you remember what the license plate number was that you
140
1 reported at the time?
2 A. From my memory, LBH 939. I believe.
3 Q. All right. You called Mike McNall that night, didn't you?
4 A. I did.
5 Q. What did you tell him?
6 A. I said that some -- apparently a friend of his had been
7 there looking for him, and I got his phone number -- gave him
8 the name and phone number.
9 Q. Do you have any way of knowing how long Mr. Bell was on the
10 property before you got to the driveway?
11 A. I do not.
12 THE COURT: Recross.
13 MR. LEEN: No questions.
14 THE COURT: All right, the witness may be excused.
15 (Witness excused.)
16 THE COURT: The jury will take a 15-minute recess.
17 Please do not discuss the case among yourself or with anyone
18 else during the recess. Please go to the jury room.
19 (Jury excused; 10:45 a.m.)
20 THE COURT: Anything either party wants to take up in
21 the absence of the jury?
22 MR. LEEN: Yes, Your Honor. The defense would like to
23 I make a motion for a mistrial. The basis for the motion, the
24 court has allowed under 404(b) some highly inflammatory
25 evidence. The court has felt that probative value outweighed
141
1 its prejudice. However, when the prosecutor interjected a Sarin
2 attack in Japan in a subway, I think he crossed the line. And
3 given the other evidence in this case, to interject that fact,
4 also, I think at this point has poisoned the jury such that they
5 could not give fair consideration to the evidence against Mr.
6 Bell. We move for a mistrial.
7 THE COURT: Oh, I think a cautionary instruction, based
8 upon your objection, was satisfactory. I told the jury not to
9 consider it. I assume that they will follow the court's
10 directions.
11 MR. LEEN: That's the objection we had, Your Honor.
12 MR. LONDON: Your Honor, if I could just be heard on
13 this point.
14 The two agents who are the victims here, what they knew, how
15 they knew about Sarin, how they had ever heard about Sarin in
16 the first place was by the way most of us learned about Sarin,
17 which was when it was released in the Tokyo subway system by the
18 members of a Japanese cult, killing people and injuring many
19 more. And so to the extent that that was the basis for their
20 knowing what Sarin was and for giving them fear of Sarin and
21 therefore additional basis for fear of this defendant, I don't
22 believe that it is inflammatory and I don't believe any lines
23 were crossed.
24 MR. LEEN: Your Honor, under that theory, if Mr. Bell
25 were Japanese, then I -- or, excuse me -- Chinese or Japanese or
142
1 Asian, then you could talk about what happened during World War
2 II, you could talk about what just recently happened with an
3 American aircraft over China and say, well, that gave me reason
4 to fear him, also.
5 You can't just use the fact that these officers hear things
6 and therefore attribute a fear to Mr. Bell. And that's what is
7 continually happening in this case. Any bad thing in their
8 lives that they can associate in some tenuous manner to Mr. Bell
9 then becomes relevant evidence against Mr. Bell. Whether it's
10 something he's done, whether it's a world event. I just -- we
11 move for a mistrial. We just don't see how we can possibly have
12 a fair trial with this type of evidence before the trier of
13 fact.
14 THE COURT: The same -- same ruling. Denied. Your
15 motion for a mistrial is denied.
16 MR. LEEN: Yes.
17 THE COURT: Fifteen minutes.
18 (Recessed at 10:50 a.m.)
19 (Jury not present.)
20 THE COURT: Anything to take up before the jury?
21 Bring the jury.
22 (Jury present; 11:10 a.m.)
23 THE COURT: All right, all the jurors have returned.
24 Next witness.
25 MR. LONDON: Call Hilda Muramoto.
143
1 HILDA MURAMOTO, PLAINTIFF'S WITNESS, SWORN
2 THE CLERK: Please state your full name and spell your
3 last name.
4 THE WITNESS: Hilda Wong Muramoto. Muramoto is
5 M-u-r-a-m-o-t-o.
6 DIRECT EXAMINATION
7 BY MR. LONDON:
8 Q. Good morning, Ms. Muramoto. I'm Bob London. I'm the
9 Assistant U.S. Attorney on this case.
10 Can you begin, please, by telling the members of the jury if
11 you're employed and how so?
12 A. I'm employed with At Home Corporation. I'm their subpoena
13 manager. I handle all the subpoenas that come into the company
14 and research customer information against our database.
15 Q. All right. And so, do you function as a records custodian?
16 A. Yes, that's correct.
17 Q. And is At Home Corporation an Internet service provider?
18 A. Yes, it is.
19 Q. And where are you located?
20 A. At 450 Broadway Street in Red Wood City, California.
21 Q. But as an Internet service provider in California, can you
22 provide Internet service for somebody in Washington state?
23 A. Yes. We partner with local cable companies to provide a
24 cable Internet service.
25 Q. All right. Have you -- have you checked your records to see
144
1 what account information, if any, you may have for any accounts
2 that might have been opened by a Jim D. Bell at 7214 Corregidor
3 in Vancouver, Washington?
4 A. Yes, I have.
5 Q. And what do your records show with regard to an Internet
6 account opened by Mr. Bell with Excite@Home?
7 A. I don't have it before me, but I did produce information and
8 sent it in to your office.
9 Q. Okay. Well, if you -- I believe that's the letter that you
10 sent that's presently marked as Exhibit 109. If you want to
11 open the binder that would have Exhibit 109 in it and turn to
12 that exhibit, you can use that to refresh your recollection.
13 A. Yes. This is a copy of the letter that I sent in response
14 and it contains the data dump I did from our database that
15 includes the information on the account opened by Jim Bell.
16 Q. Okay. So what can you tell us about that account?
17 A. On this account, there were four email accounts opened on
18 it. It was hard-wired via cable, the cable line to the address
19 at 7214 Corregidor Road in Vancouver, Washington.
20 Q. Okay. When was it opened?
21 A. The service start date was on July 5th of 2000.
22 Q. Okay. And was the -- was there anything in your records to
23 indicate that the account was no longer in service in October or
24 November of 2000?
25 A. No, there was not. At the date I sent this letter was
145
1 November 13th of 2000. I didn't indicate that it was not
2 active, so on that day it was still an active account.
3 Q. Okay. And did the setting up of that account involve a
4 telephone line or a phone number of any kind?
5 A. We don't use a telephone number. We do have a telephone
6 number on record for the customer, but the way the service is
7 set up is through a cable line, not through the telephone line.
8 Q. And that is what you mean by hard-wired, is that correct?
9 A. Yes.
10 Q. All right. What was the phone number that the customer gave
11 you for his contact?
12 A. It's (360) 696-4308.
13 Q. Okay. I want you to tell the jury, if you can, a little bit
14 about what it means for an Internet account to be hard-wired.
15 A. The Internet service that we provide, it's through the cable
16 line, so to get the service set up, you call in and you set up
17 an installation, and a team is sent out from the local cable
18 company that goes and checks your cable line signal and sets up
19 your computer so that you can access the Internet through your
20 cable line so it doesn't require phone line use. And it's
21 considered an always-on connection because you don't need to
22 dial up. And we hard-wire information on to your computer so we
23 can identify you, and that's the same way you're able to surf
24 the net. You connect onto the network through an IP address,
25 and you're assigned a computer DNS designation, as well as the
146
1 subdomain which also identifies the area you're in.
2 Q. But the notion of it being hard-wired, that has certain
3 implications, doesn't it, in terms of whether the account could
4 be accessed from a location other than the home in which it's
5 been hard-wired, is that correct?
6 A. Yes. It would need to be accessed from the home from that
7 computer through that cable modem that's set up to that cable
8 line that is in the home.
9 Q. Would it be possible, then, to take a laptop computer with a
10 modem and dial in to your account from a completely different
11 location?
12 A. No, it would not. Not -- and not to be able to have those
13 same settings with the same IP address, the same DNS, and the
14 same subdomain information, because that only appears through
15 our service that's set up via the cable modem.
16 Q. All right. Now, the Internet service provider known as
17 Excite@Home, which you work for, you assign a particular account
18 number certain numbers, isn't that correct, identifying numbers?
19 A. Yes, that is.
20 Q. What is an IP number?
21 A. It's an Internet protocol number.
22 Q. Okay. What Internet protocol number was assigned to Mr.
23 Bell's account?
24 A. 24.16.209.166.
25 Q. Okay. And you also assigned something called a DNS number,
147
1 isn't that correct?
2 A. Yes.
3 Q. What is a DNS number?
4 A. A DNS designation is an identifier. It's an identifier used
5 on the Internet. In this case we identify all of our customers
6 with a DNS that we can recognize as our own and we can look up
7 in our records to see which customer it was assigned to. The
8 DNS is actually similar to when you look on records and when you
9 look on Internet sites and you put in ww.excite.com. That's a
10 DNS designation. Every Internet site has an IP address and a
11 DNS designation number. It's the same thing with our
12 customers. We give them a DNS designation number that's unique.
13 Q. All right. What DNS number was assigned to Mr. Bell's
14 account?
15 A. C1099371-A.
16 Q. Now, the three numbers that are part of the DNS number you
17 talked about, are these automatically imprinted on any outgoing
18 email messages from a customer's account?
19 A. It would be captured in email headers.
20 Q. Okay. I think you also mentioned a subdomain number. What
21 was Mr. Bell's subdomain number?
22 A. It's vncvr1.wa.home.com.
23 Q. And would these also appear in the header of any email sent
24 from that account?
25 A. Yes, it would.
148
1 Q. Okay. I want you to look at what we have labeled Exhibit
2 140 in the book in front of you. Without publishing it to the
3 jury at this time, it can be published to you on the screen, to
4 the court, and the defendant as well.
5 A. Okay.
6 Q. Do you see that in front of you?
7 A. Yes, I do.
8 Q. Okay, is that an email with the header "Say Goodnight to
9 Joshua"?
10 A. Yes, it is.
11 Q. All right. Do you see the subdomain number that you just
12 mentioned as the one belonging to Mr. Bell's account?
13 A. Yes, I do.
14 Q. Do you see the DNS number?
15 A. Yes, I do.
16 Q. And is the IP number also contained in that information?
17 A. Yes, it is.
18 Q. And based on your understanding, would those numbers appear
19 on any other customer's account?
20 A. No, they would not.
21 MR. LONDON: Just a moment.
22 Nothing further, Your Honor.
23 THE COURT: Are you through with the direct
24 examination?
25 MR. LONDON: I am through with the direct examination.
149
1 THE COURT: Cross-examination.
2 MR. LEEN: Thank you, Your Honor.
3 CROSS-EXAMINATION
4 BY MR. LEEN:
5 Q. Good morning. What is your -- could you pronounce your last
6 name for me again, please?
7 A. Muramoto.
8 Q. Ms. Muramoto, you said that you provide Internet services
9 through a local cable company?
10 A. We partner with a local cable company to provide the
11 Internet service because the connection is through the cable
12 line.
13 Q. It's not a telephone line; it's a cable line?
14 A. Yes.
15 Q. And who is the local company?
16 A. I don't believe that I have that information with me right
17 now.
18 Q. Do you know where they are located?
19 A. I would imagine in the local area of Vancouver, Washington.
20 It's the same company who provides the television cable who
21 provides the Internet cable connection because it's a shared
22 cable line.
23 Q. All right. Now, you were asked to look at Plaintiff's
24 Exhibit No. 140.
25 A. Yes.
150
1 Q. At the top of that it says, "Hotmail leo," and then there's
2 a dash, "101@hotmail.com." What does that indicate up there?
3 Does that indicate that that's the person who received it or the
4 person who sent this?
5 A. I don't know. It's possible it could be the person that
6 received it because the originating portion comes from the
7 bottom.
8 Q. And this is -- who was the message to? Does it indicate?
9 A. Yes, it does. It has the address as
10 cypherpunks@cyberpass.net.
11 Q. And do you know what that is?
12 A. I'm assuming it's an email address to another person.
13 MR. LEEN: I have no further questions. Thank you.
14 THE COURT: Redirect.
15 MR. LONDON: Nothing further.
16 THE COURT: The witness maybe excused.
17 (Witness excused.)
18 THE COURT: Next witness.
19 MR. LONDON: Call John Young.
20 JOHN YOUNG, PLAINTIFF'S WITNESS, SWORN
21 THE CLERK: Please state your full name and spell your
22 last name.
23 THE WITNESS: John Young. Y-o-u-n-g.
24 DIRECT EXAMINATION
25 BY MR. LONDON:
151
1 Q. Good morning, Mr. Young.
2 I want to begin by asking you if you would open the notebook
3 that's going to be on that rack, the one that would correspond
4 or have Exhibit 150 in it. If you could turn to that exhibit
5 and see if you can identify it.
6 A. Which notebook?
7 THE CLERK: Over here, sir.
8 Q. (By Mr. London) There are four on the table next to you and
9 they are divided up by numbers, so find the one that has 150 in
10 it, if you will.
11 A. Okay.
12 Q. All right. Can you look at that and tell us if you
13 recognize what that is?
14 A. Yes, I do.
15 Q. What is it?
16 A. It's an email from me to the Cypherpunks list.
17 Q. And is that -- is the date of that email October 25th, 2000?
18 A. That's correct.
19 Q. All right. Were you the author of this email?
20 A. Yes.
21 Q. All right. And do you -- do you run your own website?
22 A. Yes, I do.
23 Q. What is it called?
24 A. Criptone.r.
25 Q. And where do you live? You don't have to tell us your
152
1 address, just what city you live in.
2 A. I live in New York City.
3 Q. And do you run the website from New York City?
4 A. That's correct.
5 Q. And does your website have a particular mission or purpose
6 that you can describe?
7 A. Yes. It's stated on the site that we publish documents
8 dealing with cryptology or encryption, intelligence, national
9 security, and related matters. One in particular called Dual
10 Use Technologies.
11 Q. Do you work for the government?
12 A. I'm sorry?
13 Q. Do you work for the government?
14 A. No, I do not.
15 Q. So you're not connected to the national security agencies of
16 the United States in any way?
17 A. No.
18 Q. So is it fair to say that you are just interested in issues
19 that pertain to national security and intelligence and
20 cryptology and post things on your website that are related to
21 those issues?
22 A. That's correct.
23 Q. All right. What was the purpose of posting this particular
24 email to your website? Or to the Internet, rather.
25 A. I had run across this listing for CIA organizations from a
153
1 public register of websites, one which, in particular, which
2 deals with government organizations. I'd run across this and
3 had never seen this, this organization listed before.
4 Q. When you say --
5 A. So I posted the message to see if anyone had heard of it
6 before.
7 Q. Okay. When you say that you ran across information, where
8 were you looking? What kind of search were you engaged in that
9 enabled you to run across the information that you wanted to
10 find out more about in this email?
11 A. I went to the gov register of domain names -- there's a
12 special site you go to to find out about government
13 organizations -- and entered the term "CIA," and this is one of
14 the ones that came up form that searching. I do that
15 periodically just to see what turns up.
16 Q. Okay. It's a possibility that not everybody on the jury is
17 as familiar with using the Internet, so if there's a term that
18 you think might not be familiar to someone and you want to
19 explain it, please feel free to do so, or I will ask you to do
20 so if I think that there is --
21 A. I will be glad to do so.
22 Q. So you were, if I understand your answer, you were on the
23 Internet and you were looking at a particular site and you were
24 looking for information and you ran across something that
25 intrigued you and you wanted to find out more about it, is that
154
1 correct?
2 A. That's correct.
3 Q. All right. What was the information you found that you
4 thought you wanted to know more about?
5 A. It's the ISTAC.dom listed here. Shall I read that?
6 Q. Yes.
7 A. Make it clear what I'm referring to.
8 Q. Yes. Explain to the jury, if you will, what this ISTAC
9 acronym was and what you thought you wanted to learn about it.
10 A. Well, what was listed was CIA, and in parentheses, ISTAC dot
11 -- dash DOM, and it gave an address in Vienna, Virginia, and it
12 says it's the domain name of ISTAC.GOV. And I had not heard of
13 that before, so I sent this email out soliciting information
14 about it.
15 Q. Okay. So if I understand you correctly, what you're saying
16 is that you found a reference to what might appear to be an
17 organization called ISTAC -- I-S-T-A-C -- and that it had, in
18 your mind, anyway, some connection to the CIA, is that correct?
19 A. Yes. Because the CIA was listed with that domain name.
20 Q. Okay. And was there anything in terms of -- where did you
21 first find this reference to ISTAC, specifically?
22 A. I went to the registry of governmental websites and entered
23 the initials CIA.
24 Q. Okay.
25 A. It's a search feature on that site.
155
1 Q. All right.
2 A. This is one of the things that came up, along with all the
3 other CIA articles that are listed there.
4 Q. All right. So there is a place on the Internet where all of
5 the Internet domain names connected to government agencies are
6 listed, is that correct?
7 A. That's correct.
8 Q. That's where you went.
9 A. Yes.
10 Q. And you ran a search under CIA, is that correct?
11 A. Yes. Um-hmm.
12 Q. And one of the things you came up with then was CIA with
13 this ISTAC domain?
14 A. Correct.
15 Q. Okay. How did you come across the name Deforest X. Mueller,
16 M-u-e-l-l-e-r? Was that included as being related to this
17 ISTAC?
18 A. That's correct. May I look at the rest of this? The cover
19 sheet showing that, can I pull this out?
20 Q. Yes.
21 MR. LONDON: In fact, at this point I would like to
22 offer Exhibit 150 and publish it.
23 MR. LEEN: No objection.
24 THE COURT: 150 is admitted.
25 (Exhibit No. 150 was admitted.)
156
1 A. Shall I proceed?
2 Q. (By Mr. London) Yes.
3 A. The name of Deforest X. Mueller is listed as one of the
4 contact persons for this site.
5 Q. Okay. So you had found a domain name for ISTAC, which you
6 believed to have a connection to the CIA because you had found
7 it by running a search for CIA, correct?
8 A. Yes.
9 Q. And a contact person was listed in the information that came
10 back to you, and that was a Deforest X. Mueller, correct?
11 A. Yes.
12 Q. And then based on that information, you posted this email,
13 Exhibit 150, to the Cypherpunks list on the Internet, is that
14 correct?
15 A. Yes.
16 Q. And the purpose of your email, this Exhibit 150, was to
17 request, would anyone in Oregon know about a CIA organization
18 acronymed ISTAC, correct?
19 A. Well, it was if anyone on the list had heard of it.
20 Q. Okay. Anyone on the list in Oregon?
21 A. Not necessarily. That -- that aspect was covered, but it
22 was generally, when I post these requests, it's that anyone may
23 know about these things.
24 Q. All right. But is it fair to characterize this email as a
25 request for further information or assistance, on your part,
157
1 from anyone out there on the list who might know about a CIA
2 related organization in Oregon called ISTAC?
3 A. Indeed, yes.
4 Q. And did you include this information on the second page of
5 this email that had not only the name Deforest X. Mueller, but
6 then an address at 63350 Majestic Loop in Bend, Oregon?
7 A. Yes, I did.
8 Q. And the phone number that appears beneath that?
9 A. That's correct.
10 Q. And you got all of that information as a result of the
11 search that you did, is that correct?
12 A. That's correct.
13 May I say more, or should I not say more?
14 MR. LONDON: I don't have any further questions, but
15 Mr. Leen, I'm sure, will have some.
16 THE COURT: Cross-examination.
17 MR. LEEN: One second, Your Honor.
18 CROSS-EXAMINATION
19 BY MR. LEEN:
20 Q. Good morning, Mr. Young.
21 A. Good morning.
22 Q. Mr. Young, why did you post this to the Cypherpunks mail
23 list?
24 A. It's always been a good source for information, or at least
25 it's been a good source for me to post questions like this.
158
1 Q. Do you have a rough idea how many people are on the
2 Cypherpunks mail list?
3 A. I could only say in the neighborhood of several hundred, but
4 I don't know for sure.
5 Q. Does the Cypherpunk mail list deal with subjects that are
6 similar to subjects that you deal with on your website?
7 A. Periodically, yes.
8 Q. And what would those be?
9 A. Well, the principal one is encryption matters. And from
10 encryption, dual use technologies, which are technologies at --
11 they bridge commercial and national security affairs, and
12 through that dual use, sometimes other matters come up dealing
13 with intelligence and military affairs. So it starts off,
14 though, with encryption.
15 Q. Do you post the name of suspected CIA operatives on your
16 website?
17 A. I have, yes.
18 Q. And why do you do that?
19 A. Public information.
20 Q. Is there any other reason, other than just because you have
21 a legal right to do it, that you do?
22 A. Well, it would all deal with public information. We publish
23 whatever information we can get or is sent to us about
24 intelligence agencies.
25 Q. Does anyone pay for this information or ask you specifically
159
1 to provide this information, the name of CIA operatives?
2 A. No.
3 Q. Potentially, I would imagine, they could be injured or
4 killed if you publish their names.
5 A. I don't think so. Although, we've read about such
6 allegations, but I personally don't believe that's true.
7 Q. You feel that you have the right to publish that
8 information.
9 A. So long as it's legal, yes.
10 Q. And as long as you obtain it on the Internet or through some
11 lawful source.
12 A. I'm sorry, I didn't hear that.
13 Q. I say, as long as you obtain it through some lawful source,
14 you feel that it's -- then you will publish it if you feel that
15 your information is correct?
16 A. That's correct.
17 Q. And, for example, this Mr. Mueller, why didn't you just call
18 him since his telephone number, I think, is on that web
19 posting? Why didn't you just call him up and ask him?
20 A. Well, I don't do much telephone calling. I do most of what
21 I do on the Internet, and since this was the first time I had
22 ever seen an address like this connected with a CIA site, I
23 thought it was very unusual and was actually quite mystified why
24 this would be done. So I wanted to find out, one, was it true?
25 Is this a spoof? I'm well aware that intelligence agents often
160
1 put out misinformation on purpose, so I was curious as to why
2 this was done. Since the other contact information on this --
3 on this entry actually is more customary, where they use a last
4 initial or there's no actual specific information. This is the
5 first time I have ever seen this address-type information given
6 for a person associated with the CIA. Typically they never ever
7 do that. So I was curious whether this was a spoof, you know.
8 You know, this information. So I wanted to find out more about
9 it.
10 Q. But you do use the telephone? You took one of my calls,
11 didn't you?
12 A. I'm sorry?
13 Q. You took a telephone call from me. Didn't I call you?
14 A. Yes, you did.
15 Q. So you use the telephone. Why didn't you just call Mr.
16 Mueller and ask him?
17 A. Well, as I said, most of this that I do on this site is done
18 through the Internet. I like it a lot, I feel comfortable with
19 it, and it's the way I gather and receive information.
20 Q. Why didn't you email him?
21 A. Excuse me?
22 Q. Why didn't you email him?
23 A. I did.
24 Q. Did he respond?
25 A. No. I actually emailed two of the persons listed and got no
161
1 response from either one, and one of them bounced. The other
2 one, nothing happened. That often -- when you send emails often
3 to CIA addresses, nothing happens. You don't get a bounce, you
4 don't get anything.
5 Q. Will you explain to the jury what you mean by bounce?
6 A. Well, the message was returned; there's no such person, no
7 such address. And that's what happened with Mr. Mueller. There
8 was nothing -- it was a bounced message. The message I sent to
9 Dan S., nothing happened. It went into a black hole.
10 Q. And what do you mean by that?
11 A. Well, I meant -- often when you send email to a -- this is
12 speculation, but the speculation is that if you send an email
13 and there's no bounce, which means even ISP doesn't send it back
14 with a bounce message, it could have been received and just
15 absorbed for whatever reason. Now, that's not always true, but
16 that's one possibility.
17 Q. When you mean received and absorbed, sometimes I get email
18 and I just delete it. Is that what you mean by -- without even
19 reading it. Is that what you mean by --
20 A. It's possible.
21 Q. -- received and absorbed?
22 A. That's possible, yes. But I should say, some ISPs don't
23 have a bounce feature. Many government sites don't have a
24 bounce feature. Many commercial -- or I understand most
25 commercial sites do have a bounce feature.
162
1 Q. Have you ever communicated by email with Mr. Bell, James
2 Bell, or a person who identified himself as James Bell?
3 A. Well, I was asked that during the grand jury, and my answer
4 was no, so I think I will stick with that.
5 Q. Well, is that the truth?
6 A. Well, I don't like to say I don't recall, so I will just say
7 no.
8 Q. Well, have you ever heard of an essay called Assassination
9 Politics?
10 A. I have.
11 Q. Or referred to as AP?
12 A. Yes, indeed.
13 Q. Who do you know to be the author of that?
14 A. I'm familiar with --
15 Q. Or who has identified himself as the author?
16 A. That's correct. That's correct.
17 Q. Mr. Bell?
18 A. Yes, James Bell.
19 Q. And have you ever had email correspondence with the person
20 who you believed was the author of that essay?
21 A. Well, it's possible, but I don't recall it.
22 Q. Did you post that essay or a link to that essay on your
23 website?
24 A. Yes. I have published it, and it's still there. It's been
25 there for quite awhile.
163
1 Q. And why was that?
2 A. Well, it's a very interesting essay and it deals with
3 technology issues. It's well written. There's been a lot of
4 interest in it. I saw it on another site and copied it from
5 that site and put it on my site as part of the archive that I
6 run.
7 Q. What do you mean by archive?
8 A. Well, I have about 7,000 documents on this site dealing with
9 matters, as I said, with encryption, dual use, intelligence,
10 national security. And AP is a good example of how some of that
11 technology is envisioned.
12 Q. Now, when you mean archive, is that -- sometimes on the
13 computer there's a little, like a blue link, and you click on it
14 and you can -- and then it will go to someplace else and then it
15 will list documents and you can click on those and eventually
16 you get somewhere. Is that what you mean by archive?
17 A. No. The archive here -- the 7,000 documents are on a web
18 server that I rent. Now, that's distinguished from links that
19 go to elsewhere. So every link that goes as archive comes to --
20 retrieves material from the server that I rent and operate.
21 Q. Do you feel that Mr. Bell's essay, Assassination Politics,
22 is feasible to implement?
23 A. No.
24 Q. Why not?
25 A. Well, based on discussions I've read about it -- in fact,
164
1 there are a number of technologies that are envisioned that are
2 just not available.
3 Q. At this time?
4 A. That's correct.
5 Q. Do you have other types of documents on your website which
6 are -- which have a -- which are not just dealing with
7 encryption, but deal with the politics that could be affected by
8 encryption?
9 A. Very much so, yes. In fact, that was the reason for the
10 website, was to deal with encryption issues and how it is
11 being -- how it is evolving in our culture, yes. So that's the
12 single most important part of our website, is encryption
13 matters.
14 Q. And approximately when did you first become aware of this
15 essay and when did you put it on your website?
16 A. Well, I think I first became aware of it when it was
17 mentioned on the Cypherpunks list. I don't recall when that
18 was. And so there was -- it was periodically mentioned and
19 discussed on that list. And sometime later, I don't recall
20 when, I located the essay on another website and made a copy of
21 it and put it on my site.
22 Q. Do you know a news reporter for Wired News named Declan
23 McCullagh?
24 A. Yes.
25 Q. Do you ever email him?
165
1 A. I'm sorry?
2 Q. Do you ever email with him?
3 A. Yes.
4 Q. Do you know if he is a member of the Cypherpunks mail list?
5 MR. LONDON: Objection, Your Honor. I would just like
6 to know where it's leading. There's a relevance issue.
7 THE COURT: It's beyond the scope of the direct, so I
8 will sustain the objection.
9 MR. LEEN: May I speak to my client for one second,
10 Your Honor?
11 Q. (By Mr. Leen) Just a few more questions, Mr. Young.
12 Having read the essay and being aware of these types of
13 issues, in your opinion, is there anything of value in this
14 essay?
15 A. Yes, indeed.
16 Q. And what is that?
17 A. Well, it is that I think that, what's of value in it for me
18 -- and I must say I don't know that I've read the entire
19 document, it's fairly long; I know more about having read
20 discussions of it -- is that it, it's a good essay to explore
21 how new technologies, particular digital technologies, are being
22 envisioned -- envisioned is my word -- about how they might be
23 put together in various kinds of combinations for various
24 reasons, whether it's literary or technological or political or
25 whatever. So it's a -- to me it's an interesting essay in how
166
1 new technologies are deployed.
2 Q. When you use the word digital technologies, would you
3 explain what you mean?
4 A. Well, starting with encryption, in its digital form rather
5 than paper form.
6 Q. Well, a lot of people here use pencil and paper. What do
7 you mean by encryption? What does that mean?
8 A. Well, it's -- it's the process of enciphering information so
9 that it cannot be read by a person who doesn't have the
10 decryption key. It's a way of concealing information. One
11 method is digital. There are paper or written versions of it as
12 well as other physical forms. So the one I'm speaking of is the
13 digital form where it's primarily done on computers.
14 Q. Okay. So when you say sending encryption, you mean like a
15 coded message?
16 A. Yes.
17 Q. It's a form of coded message that only someone who has the
18 formula to convert it back can actually read the message if they
19 intercept it, is that what --
20 A. Yes, or they crack the encryption. That's correct.
21 Q. And digital encryption, is that a very sophisticated form of
22 encryption?
23 A. Well, there are different degrees. There's very simple
24 digital encryption -- in fact, there's even one called rock 13
25 that is something of a joke about how easy it is to crack --
167
1 all the way up to the so-called uncrackable forms that are
2 sometimes referred to as military grade, with a great spread of
3 strengths between those two.
4 Q. Now, Mr. Bell, what type of encryption was he -- was he
5 writing about sophisticated encryptions?
6 A. I frankly don't remember.
7 MR. LEEN: No further questions. Thank you.
8 THE COURT: Redirect.
9 MR. LONDON: Yes, very briefly.
10 REDIRECT EXAMINATION
11 BY MR. LONDON:
12 Q. Mr. Young, you said that it's your opinion that the
13 technology isn't yet available to make Assassination Politics
14 work, it's not feasible, correct?
15 A. That is what I've read. I'm afraid that I'm not a skilled
16 technologist myself, so this is based on what I've read others
17 have said who I consider to be skilled.
18 Q. But you are aware that there's one -- at least one
19 individual in this world who did try to implement it, Carl
20 Edward Johnson. In fact, you covered his trial extensively on
21 your website, correct?
22 A. I missed the last few words, Mr. London.
23 Q. Well, you actually posted quite a bit of information about
24 Carl Edward Johnson on your website, didn't you?
25 A. I did indeed, yes.
168
1 Q. Right. And that he -- he was convicted in this district for
2 threatening to kill federal judges and other people in a direct
3 attempt to implement or suggest that he was implementing
4 Assassination Politics, correct?
5 You covered that, you put all that information on your
6 website, did you not?
7 A. I did.
8 Q. Right. And he -- and one of the things that he did was he
9 devised what's called a bot, did he not, a computer program?
10 A. He made a joke about it.
11 Q. Well, actually, sir, didn't he create a computer program,
12 the data entry field, and you could -- you could enter the name
13 of a federal judge or a federal official for killing and it
14 automatically sent that name back by email to Carl Johnson in
15 his own computer. You're aware of that, aren't you, sir?
16 A. I'm aware of that spoof of AP, yes.
17 Q. Well, that spoof is your characterization, isn't that
18 correct?
19 A. I'm sorry? Yes.
20 Q. Are you aware --
21 A. Yes, that is my characterization.
22 Q. You are aware, however, that it was possible to enter the
23 name of an individual for killing, and the name of that person
24 was sent back to Mr. Johnson's computer --
25 A. That I don't know.
169
1 Q. -- as an attempt to implement Assassination Politics. You
2 do know that.
3 A. I don't know that, no.
4 Q. That wasn't one of the exhibits or documents that you put up
5 on your website?
6 A. Those were charges.
7 THE COURT: Redirect?
8 MR. LEEN: No questions, Your Honor.
9 THE COURT: Recross, I'm sorry.
10 The witness may be excused.
11 THE WITNESS: Am I excused as a witness?
12 THE COURT: Yes.
13 THE WITNESS: Altogether?
14 THE COURT: Yes.
15 THE WITNESS: Thank you.
16 (Witness excused.)
17 THE COURT: Call your next witness.
18 MR. LONDON: Agent Goold.
19 J. BRIAN GOOLD, PLAINTIFF'S WITNESS, SWORN
20 THE CLERK: Please be seated.
21 State your full name and spell your last name.
22 THE WITNESS: J. Brian Goold. Last name spelled
23 G-o-o-l-d.
24 DIRECT EXAMINATION
25 BY MR. LONDON:
170
1 Q. Mr. Goold, how are you employed?
2 A. I am a special agent with the Treasury Inspector General for
3 Tax Administration.
4 Q. What are the responsibilities of the Treasury Inspector
5 General for Tax Administration?
6 A. We are the inspector general for the Internal Revenue
7 Service. We investigate public corruption, bribery attempts of
8 employees, and serious misconduct of employees.
9 Q. All right. But if -- is it fair to say that if someone who
10 is a Treasury Department employee may appear to be threatened or
11 have their security in jeopardy in any way, that you investigate
12 that?
13 A. Yes. One of the -- one of the key things that we do
14 investigate are assaults against Internal Revenue Service
15 employees or their family members.
16 Q. All right. In November of 2000, this last November, were
17 you present at the execution of a federal search warrant at the
18 residence at 7214 Corregidor, Vancouver, Washington?
19 A. Yes.
20 Q. The residence of James Dalton Bell?
21 A. Yes.
22 Q. Did you see Mr. Bell that day?
23 A. Yes.
24 Q. Did you hand him a copy of the search warrant?
25 A. I did not personally hand him a copy of the warrant. He
171
1 was served a copy of the search warrant by Agent Marandola.
2 Q. Did you see him with a copy of the warrant?
3 A. Yes, I did.
4 Q. Did you see him reading the warrant?
5 A. Yes, I did.
6 Q. Now, did you personally seize a number of items during the
7 execution of that search warrant?
8 A. Yes.
9 Q. I would like to take you through a number of exhibits, if I
10 can, and we will probably interrupt it to take the lunch break
11 at a certain point, but we will get started.
12 Please turn to Exhibit 2 in the notebook. If you will look
13 at that exhibit, if you will, and then tell the members of the
14 jury if you recognize that and what it is?
15 A. Exhibit 2 is a three-and-a-half-inch computer disk, floppy
16 disk, of -- with a handwritten title, "ATF-Thug Hunt." It has a
17 return address label on it of Mr. James D. Bell, 7214 Corregidor
18 Road, Vancouver, Washington.
19 Q. All right. Did you examine what was on that diskette?
20 A. This diskette I have not examined.
21 Q. All right. Can you turn to Exhibit 137, please.
22 Do you recognize 137?
23 A. Yes, I do.
24 Q. What is Exhibit 137?
25 A. This is a spiral notebook handwritten with detailed notes of
172
1 date, time, addresses, names, license numbers, places where the
2 individual who wrote this has been, and it was located in the
3 basement. I found it in the basement of the residence.
4 Q. And then -- was the basement of the residence, as far as you
5 knew, the part of the house where Mr. Bell lived?
6 A. Correct.
7 Q. All right.
8 MR. LONDON: We offer 137.
9 THE COURT: 137 is admitted.
10 (Exhibit No. 137 was admitted.)
11 Q. (By Mr. London) I asked you about Exhibit 2 which you said
12 was a computer diskette labeled "ATF-Thug Hunt." Do you
13 recognize that diskette as the one that you seized at the house
14 that night?
15 A. Yes, I do.
16 MR. LONDON: I offer Exhibit 2.
17 MR. LEEN: No objection.
18 THE COURT: 2 is admitted.
19 (Exhibit No. 2 was admitted.)
20 Q. (By Mr. London) Please turn to Exhibit 171.
21 Do you recognize 171?
22 A. Yes, I do.
23 Q. What is that?
24 A. This is the original fax that was sent to Special Agent
25 Gordon. I recognized it --
173
1 MR. LEEN: Objection, Your Honor. That calls for
2 speculation. It's not addressed to Agent Gordon.
3 THE COURT: Well, he said he recognizes it.
4 MR. LEEN: Yes, but he's identifying -- he's saying who
5 it was sent to. I don't think he can say that because it was
6 sent to a fax machine and it is not addressed to anyone.
7 Q. (By Mr. London) All right. Let me take you through a
8 series of questions. Does that appear to be an original of a
9 fax that was sent?
10 A. The reason why I stated I recognized it is because prior to
11 the search warrant I was shown a copy of this exact facsimile,
12 and when I saw the facsimile, I recognized it as the one I was
13 previously shown prior to it, prior to going into the
14 residence. That is why I recognized it. As the original it has
15 blue ink handwriting on here, with -- signed by Jim B.
16 Q. All right. So you had been shown a copy of that in which
17 the handwriting did not appear in blue ink, correct?
18 A. Correct. It was black.
19 Q. Right. Now you were present at the execution of the search
20 warrant. You found that fax with the blue ink on it, correct?
21 A. Correct.
22 Q. And it corresponded to the one that you had been shown
23 before, which probably was the one that had been received,
24 correct?
25 A. Correct.
174
1 Q. All right. And it appeared to you to be the original of
2 that, correct?
3 A. Yes.
4 Q. All right. So -- and the handwritten notation, "How about
5 if I drop by your house tomorrow night," did that correspond
6 with the handwritten message you'd seen on the copy?
7 A. Yes, it did.
8 MR. LONDON: We offer Exhibit 171.
9 THE COURT: 171 is admitted.
10 (Exhibit No. 171 was admitted.)
11 Q. (By Mr. London) Please turn to Exhibit 190.
12 For the sake of speed, whenever I ask you about an exhibit,
13 when you see it, just tell the jury if you know what it is --
14 A. Okay.
15 Q. -- and if you recognize it.
16 A. This is a commercially produced compact disk that is a
17 database of the state of Oregon DMV information.
18 Q. Have you had a chance to actually put that CD-ROM into a
19 player to see what's on it?
20 A. Yes, I did. I -- I reviewed the CD, and the data that comes
21 back is in the database format which allows you to look at DMV
22 information via a name and an address in an alphabetical order.
23 Q. All right. So the indication on the outside, which is that
24 it's 1994 Oregon Department of Motor Vehicle database
25 information, is in fact accurate when you look to see what's on
175
1 the CD-ROM, correct?
2 A. Correct.
3 MR. LONDON: We offer 190.
4 MR. LEEN: No objection.
5 THE COURT: It's admitted.
6 (Exhibit No. 190 was admitted.)
7 Q. (By Mr. London) I ask you to look at 191, and the same
8 thing.
9 A. 191 is a commercially produced State of Oregon DMV database
10 with license plates and driver's licenses. This database, when
11 I did a review of it, was in a sequential order of the license
12 plate. And that is how this one is able to be queried.
13 Q. All right. And when you say it's motor vehicle license
14 plate information, I take it that when you look at it there's a
15 list, all kinds of lists of license plates, and then names that
16 correspond to those?
17 A. Correct. There are the name, address, zip code information
18 that corresponds to that specific license plate.
19 MR. LONDON: We offer 191.
20 MR. LEEN: No objection.
21 THE COURT: It's admitted.
22 (Exhibit No. 191 was admitted.)
23 Q. (By Mr. London) Please turn to the next exhibit, 192.
24 A. Exhibit 192 is a compact disk with handwriting information
25 -- or handwritten information, excuse me -- Oregon, or
176
1 abbreviated OR, license plates 9-4-97. The letter *A to SWD.
2 Q. And so is there an indication that that's part one of two
3 parts?
4 A. Yes. There is a 1/2 on here.
5 Q. And 193, what is Exhibit 193? Does that appear to be part
6 two?
7 A. Is it okay if I open it up?
8 Q. Please.
9 A. It is a similar compact disk with Oregon license plate,
10 9-4-97, SWE to 999, 2 of 2, and this is -- this is all
11 handwritten.
12 Q. And have you put those CD-ROMs in to see what kind of
13 information is contained on it?
14 A. Yes, I have. This information is a database of names,
15 addresses, and information of the individuals in the state of
16 Oregon that have the vehicles. DMV information.
17 MR. LONDON: We offer 192.
18 THE COURT: It's admitted.
19 (Exhibit No. 192 was admitted.)
20 MR. LONDON: And 193.
21 MR. LEEN: No objection.
22 THE COURT: It's admitted.
23 (Exhibit No. 193 was admitted.)
24 Q. (By Mr. London) Please turn to 194.
25 A. 194 is another compact disk, and this one states in
177
1 handwriting, "Oregon Drivers" 1997. Below it says 10,000. I'm
2 not able to read the rest due to the label, but I have had the
3 ability to once again put this in a computer and look at it, and
4 it does contain driver's license information, name, address,
5 etc.
6 MR. LONDON: We offer 194.
7 MR. LEEN: No objection.
8 THE COURT: Admitted.
9 (Exhibit No. 194 was admitted.)
10 Q. (By Mr. London) Please look at 195 and tell the jury what
11 that is.
12 A. Exhibit 195, on the outside of the diskette it has, in the
13 diskette cover, it shows in handwritten letters "DMV 2000." On
14 the inside it is a diskette with the words "Y2K" written on the
15 back.
16 Q. Have you put that one in a computer and seen what's on
17 there?
18 A. This one I have not.
19 MR. LONDON: We offer 195.
20 MR. LEEN: Objection.
21 THE COURT: Pardon?
22 MR. LEEN: Objection, Your Honor. Nothing verified.
23 MR. LONDON: Well, the mere fact that it was labeled
24 Department of Motor Vehicles 2000, in my view, indicates that it
25 probably is a database once more -- one more CD-ROM. There's
178
1 voluminous number of them.
2 MR. LEEN: Your Honor, we object.
3 THE COURT: Jury, please go to lunch. Be in the jury
4 room at 1:30. Please do not discuss the case among yourselves
5 or with anyone else.
6 (Jury excused; 11:55 a.m.)
7 THE COURT: The witness may step down.
8 THE WITNESS: Thank you.
9 THE CLERK: Excuse me, sir. I need that.
10 MR. LONDON: That stays up there, back on the rack.
11 Yes, you can borrow that.
12 AGENT GORDON: Take the disk out.
13 THE COURT: What's the objection to 195?
14 MR. LONDON: The objection was that he hadn't actually
15 looked at what's on that --
16 THE COURT: I didn't ask you, counsel. I asked Mr.
17 Leen.
18 MR. LEEN: I'm sorry, Your Honor? I was just looking
19 at --
20 THE COURT: What is the objection to 195?
21 MR. LEEN: Your Honor, two objections. Well, the
22 objection specifically was that it's just -- it's identified but
23 it's not -- there's no indication that the item is what the
24 prosecutor has said in a talking response to the objection, and
25 basically made an argument. So I object to him having talking
179
1 responses to objections. I think that's the first thing.
2 The second thing is I don't think it was properly
3 authenticated.
4 THE COURT: Is there any objection that it was not
5 seized under the search warrant?
6 MR. LEEN: No. It was seized under the search warrant.
7 THE COURT: All right. So then what is it, to the
8 government?
9 MR. LONDON: It's one of many CD-ROMs that were found
10 in the house containing databases of the Department of Motor
11 Vehicles and otherwise that indicate the extent of the
12 defendant's search for personal address information for people.
13 The fact that the agent hadn't actually looked at what was on
14 that disk I don't think should be the basis for excluding it
15 because the fact that it's labeled the year 2000 DMV database in
16 and of itself is probative.
17 THE COURT: Well, how?
18 MR. LONDON: I would say that there's a strong link --
19 THE COURT: The problem is going to be, this jury is
20 going to come back and want to play it to see what's on it.
21 MR. LONDON: Over the lunch hour he can put it on to a
22 CD-ROM and see what's on it and testify to it.
23 THE COURT: 1:30.
24 (Recessed at twelve o'clock.)
25 AFTERNOON SESSION
180
1 (Jury not present.)
2 THE COURT: Ready?
3 Yes?
4 MR. LEEN: Your Honor, I have one thing. Mr. Bell has
5 promised that if he is allowed to sit next to me he won't cause
6 any further disruption, and it would make things a little
7 easier. Do you think we could try it?
8 THE COURT: Are you asking that?
9 MR. LEEN: Yes, sir.
10 THE COURT: All right.
11 MR. LEEN: Thank you, sir.
12 THE COURT: Ready for the jury?
13 MR. LONDON: Yes, Your Honor.
14 THE COURT: Bring the jury.
15 (Jury present; 1:43 p.m.)
16 THE COURT: Let the record reflect all members of the
17 jury are present.
18 Continue direct examination.
19 Q. (By Mr. London) Agent Goold, you're still under oath. I
20 will continue where we left off.
21 I asked you before the brake to examine Exhibit 195, and you
22 had done so. Over the course of the noon hour, were you able to
23 actually put Exhibit 195 into a CD-ROM playing device and see
24 what's on there?
25 A. Yes.
181
1 Q. And what, in fact, is on that CD-ROM?
2 A. DMV information, names, addresses, license plate numbers.
3 Q. All right.
4 MR. LONDON: So once again we offer 195.
5 MR. LEEN: No objection. 195 is admitted.
6 (Exhibit No. 195 was admitted.)
7 Q. (By Mr. London) Please turn to Exhibit 196 and tell the
8 jury if you recognize that.
9 A. Yes, I do.
10 Q. What is that?
11 A. It is another CD-ROM with an outside label, commercially
12 made label, Digital Directory Assistance, Inc. It is an
13 official PhoneDisc, residential, for the east.
14 Q. When you say the east, does that mean the eastern United
15 States?
16 A. It is a database of American companies, so I would presume
17 that, yes.
18 Q. Have you had a chance to look at that CD-ROM and see what's
19 on it?
20 A. Yes.
21 Q. What is on it?
22 A. It is a searchable database where you type in a name, and as
23 you type the name in, it will scroll up to whatever your query
24 is.
25 Q. And does it use as its database telephone directories in the
182
1 United States?
2 A. I believe so.
3 MR. LONDON: I offer 196.
4 MR. LEEN: No objection.
5 THE COURT: 196 is admitted.
6 (Exhibit No. 196 was admitted.)
7 Q. (By Mr. London) Please turn to 197. Same question.
8 A. 197 is also a commercially produced disc by Digital
9 Directory Assistance, Inc. It is PhoneDisc, Residential,
10 western states.
11 Q. Does that correspond to 196 except for the western states?
12 A. Yes.
13 Q. Have you looked at that on a CD-ROM playing device?
14 A. Yes.
15 Q. What does it contain?
16 A. Similar information to the previous disk, except that it's
17 for information to the west.
18 MR. LONDON: We offer 197.
19 MR. LEEN: No objection.
20 THE COURT: 197 is admitted.
21 (Exhibit No. 197 was admitted.)
22 Q. (By Mr. London) Please turn to 198.
23 A. 198 is a disk without a CD cover. It is a commercially
24 produced CD labeled PhoneDisc Business Pro supplied by Database
25 of America Companies.
183
1 Q. Did you put that one into a CD playing device?
2 A. Yes.
3 Q. What's on there?
4 A. Once again, information related to businesses that are
5 searchable via query of name.
6 MR. LONDON: We offer 198.
7 MR. LEEN: No objection.
8 THE COURT: 198 is admitted.
9 (Exhibit No. 198 was admitted.)
10 Q. (By Mr. London) Please turn to 199. Same thing.
11 A. 199 is a user guide for the PhoneDisc CDs that I previously
12 mentioned.
13 MR. LONDON: We offer 199.
14 MR. LEEN: No objection.
15 THE COURT: It is admitted.
16 (Exhibit No. 199 was admitted.)
17 Q. (By Mr. London) Please turn to 200. What is 200?
18 A. 200 is a printout from a data base query, and at the top in
19 the blue writing, it says, "Year 1996 vehicle," and the names
20 Gordon, Jeffrey and Jeff Gordon appear several times.
21 Q. Does that appear to be a printout of a search of a vehicle
22 database for a Jeffrey Gordon?
23 A. Yes, it does.
24 MR. LONDON: We offer 200.
25 MR. LEEN: May I voir dire briefly, Your Honor?
184
1 THE COURT: Yes.
2 VOIR DIRE EXAMINATION
3 BY MR. LEEN:
4 Q. Did you find the documents in this form, sir?
5 A. Yes, I did.
6 MR. LEEN: No objection.
7 THE COURT: Admitted.
8 (Exhibit No. 200 was admitted.)
9 MR. LONDON: I would like to publish this document,
10 Your Honor.
11 DIRECT EXAMINATION (Continuing)
12 BY MR. LONDON:
13 Q. Please turn to 201.
14 A. 201 is another database query printout. The title comes up,
15 "1994 data," with a series of database query printed items
16 related to Gordon, Jeffrey.
17 Q. Again, based on -- I'm sorry?
18 A. In parenthesis, you will have in handwriting in blue ink,
19 "in 2000," "in 2000," "in 2000," to the side of three different
20 individuals by -- with the last name of Gordon and first name of
21 Jeffrey.
22 Q. Is that based on vehicle information?
23 A. It's based upon a query of a name, I believe.
24 Q. Okay. And can you tell from 201 whether that is -- the
25 database that is involved there is Department of Motor Vehicle
185
1 information?
2 A. Yes. It appears very similar to the data on the CD-ROMs.
3 MR. LONDON: All right. We offer 201.
4 MR. LEEN: No objection.
5 THE COURT: It's admitted.
6 (Exhibit No. 201 was admitted.)
7 Q. (Mr. London) Please do the same thing with 202.
8 A. 202 is entitled in blue ink, "Year 2000 Vehicle." This is
9 another database query printout. It appears to be off of a
10 query of a license plate number related to a Gordon, Jeffrey.
11 MR. LONDON: Offer 202.
12 MR. LEEN: No objection.
13 THE COURT: It's admitted.
14 (Exhibit No. 202 was admitted.)
15 Q. (Mr. London) 203.
16 A. This is another database query. Handwritten on the top is
17 "1996 plates," listing 8300 Southwest Chelan, Tualatin, Oregon,
18 and then "8300 Southwest Chelan is where Jeff and Brad (sic) J.
19 Gordon's vehicle SAV794 becomes registered in 1997." The rest
20 is a query printout, but that, what I just mentioned, was in
21 writing.
22 MR. LONDON: We offer 203.
23 MR. LEEN: No objection.
24 (Exhibit No. 203 was admitted.)
25 Q. (By Mr. London) Same with 204, please.
186
1 A. Another database query with writing in blue on the top
2 "Vehicles, 1997, New address for SAV479 (sic) car."
3 Q. Have you examined that to see if that SAV -- I'm sorry, what
4 was the license number or the number there?
5 A. SAV794. It shows it listing to a Barbara Gordon.
6 MR. LONDON: We offer 204.
7 MR. LEEN: No objection.
8 THE COURT: 204 is admitted.
9 (Exhibit No. 204 was admitted.)
10 Q. (By Mr. London) Same with 205, please.
11 A. 205 is another database query written -- handwritten in blue
12 on the top, "year 1994 vehicle" with all of the queries with the
13 last name Gordon.
14 MR. LONDON: Offer 205.
15 MR. LEEN: No objection.
16 THE COURT: Admitted, 205.
17 (Exhibit No. 205 was admitted.)
18 Q. (Mr. London) Please turn to 209.
19 A. This is a database query. It apparently is querying the
20 first letters SAV. And then it has a series of licenses that
21 correlate with the first letters, SAV.
22 Q. Is there any reference to Gordon?
23 A. Yes. The fourth license plate is referenced to a Gordon,
24 Jeffrey P.
25 MR. LONDON: We offer 209.
187
1 MR. LEEN: No objection.
2 THE COURT: 209 is admitted.
3 (Exhibit No. 209 was admitted.)
4 Q. (By Mr. London) Please turn to 213.
5 A. 213 is a certified copy of the search warrant.
6 Q. Is that the search warrant that you testified you observed
7 Mr. Bell look at at the scene of the search?
8 A. Yes.
9 MR. LONDON: We offer 213.
10 MR. LEEN: Objection, Your Honor.
11 THE COURT: Pardon?
12 MR. LEEN: Objection. Relevance of the search warrant
13 itself. Legal process. There is no -- the court has allowed
14 the evidence in. It has no independent significance.
15 THE COURT: Raise your voice, Mr. Leen. I can't hear
16 you.
17 MR. LEEN: I say it has no independent significance
18 beyond the fact that it authorized the agents to enter into the
19 premises and conduct a search. Otherwise the document has no
20 relevance.
21 THE COURT: 213 is admitted.
22 (Exhibit No. 213 was admitted.)
23 MR. LONDON: Nothing further of this witness, Your
24 Honor.
25 THE COURT: Cross-examination.
188
1 CROSS-EXAMINATION
2 BY MR. LEEN:
3 Q. Special Agent Goold -- is it pronounced Goold?
4 A. Goold, yes.
5 Q. Good afternoon, sir.
6 A. Good afternoon to you.
7 Q. I was wondering, you went through a number of sheets of
8 paper, the 200 series. Was this all of the runs of data that
9 you found or were there many more?
10 The name Jeffrey Gordon, Gordon, Barbara, SAV, the ones that
11 we just went through, were those the only volumes of data that
12 were printed out or were there -- were there many other sheets
13 with other names and other information that was printed out?
14 A. I -- the search warrant authorized me to take relevant
15 information that was related to the search warrant, and if it
16 wasn't relevant, then I did not take it. I don't recall many
17 other printouts that I -- there were others, but they were not
18 relevant to the search warrant.
19 Q. So you did not take them?
20 A. No.
21 Q. All right. Now, were you the agent who actually seized
22 these particular items that we've gone through?
23 A. Yes, I was.
24 MR. LEEN: One second, Your Honor.
25 The last exhibit, what number was it?
189
1 THE CLERK: 213.
2 Q. (By Mr. Leen) Would you look at -- 213 was the search
3 warrant upon which you went into the premises and gave you
4 authority to enter into the premises --
5 A. Yes.
6 Q. -- Agent Goold?
7 A. Yes.
8 Q. Could you please tell the court exactly as to what the
9 premises were that this search warrant authorized you to go to?
10 Would you read from it.
11 A. Are you referring to the last page, what items to be
12 seized? What are you referring to?
13 Q. No, the search warrant. The cover page. The actual search
14 warrant itself. It authorized you to go to a certain premises
15 and conduct a search.
16 A. Okay. Do you want me to read that?
17 Q. Yes. What premises did it authorize you to go onto?
18 A. Okay. The residence of James Dalton Bell, 7214 Corregidor
19 Road, Vancouver, Washington. The residence is a one-story wood
20 framed house with an unattached garage. The house is blue gray
21 with white trim and has four large glass windows in the front.
22 To the right of the front door are the numbers 7214 which are
23 vertical and colored black. There is a black lamppost with a
24 white bolt on top in front of the residence. An asphalt
25 driveway runs from, quote, Corregidor Road north to the two car
190
1 garage.
2 MR. LEEN: I would like to -- may I use the Elmo,
3 perhaps?
4 MR. LONDON: Your Honor, may I have a word with counsel
5 for a moment, because I believe there's some confusion. We
6 inadvertently in Mr. Leen's and in our copies of the exhibit
7 notebooks put the copy of the search warrant for Mr. Bell's car,
8 which also had been obtained. The actual one that's in the
9 witness notebook, which is the real exhibit --
10 THE COURT: What has the witness been testifying from?
11 MR. LEEN: Something different than from what I have
12 been provided.
13 MR. LONDON: The witness has the correct exhibit. We
14 inadvertently put the search warrant for the car.
15 THE COURT: Give Mr. Leen, then, the correct copy.
16 THE WITNESS: This goes with it, the attachments.
17 THE COURT: Is this the original, though?
18 THE CLERK: This is the original.
19 THE COURT: Don't give him that. Just show it to him.
20 MR. LEEN: Thank you.
21 May I, for purposes of the questioning, Your Honor?
22 THE COURT: Yes, go ahead.
23 MR. LEEN: Thank you.
24 Q. (By Mr. Leen) Agent Goold, you were also authorized to
25 seize an article called "Assassination Politics."
191
1 MR. LEEN: I had better give this back to you.
2 Q. (By Mr. Leen) Item number 4 that you were asked to --
3 authorized you to seize a writing called "Assassination
4 Politics" or any other proposal or discussion to threaten,
5 intimidate, or interfere with any BATF, IRS, or other
6 governmental employee.
7 A. That's what it says.
8 Q. And did you seize that document?
9 A. I did not, no.
10 Q. Did you seize any other writings -- essays, writings, of Mr.
11 Bell relating to his political views?
12 A. I personally did not seize any of those items you mentioned.
13 Q. Were any given to you as a result of that seizure?
14 A. No.
15 MR. LEEN: Thank you. No further questions.
16 THE COURT: Mr. Leen, do you now have a copy of the
17 search warrant, namely Exhibit 213?
18 MR. LEEN: I was provided a copy --
19 THE COURT: I didn't ask you that. Do you have that in
20 your hand now?
21 MR. LEEN: No, Your Honor. I have the attachment. I
22 do not have the right exhibit yet. But I know --
23 THE COURT: You've never received a copy of what is now
24 213?
25 MR. LEEN: I have a -- I have a -- discovery provided
192
1 the correct document that this witness is testifying from. The
2 one I was provided was a different search warrant, and so I was
3 questioning him about that. It's been resolved. To my
4 satisfaction it's been resolved now, Your Honor.
5 THE COURT: Do you or do you not have access to --
6 MR. LEEN: Yes, I have access to.
7 THE COURT: 213. 213?
8 MR. LEEN: Well, when I --
9 THE COURT: You either do or you don't.
10 MR. LEEN: Yes, I have access to it.
11 THE COURT: Thank you.
12 Any other questions?
13 Redirect.
14 REDIRECT EXAMINATION
15 BY MR. LONDON:
16 Q. How many members were there in the search team that day, the
17 best as you can recall?
18 A. I believe it was eight or nine agents.
19 Q. Did you have any conversations with any of those agents,
20 either on your way to the search, at the scene of the search, or
21 immediately after the search?
22 A. Yes.
23 Q. And was there any discussion whatsoever about seizing
24 documents that involved free political expression?
25 A. No.
193
1 THE COURT: Recross.
2 MR. LEEN: No further questions.
3 THE COURT: The witness may be excused.
4 (Witness excused.)
5 THE COURT: Next witness.
6 MR. LONDON: We call John Copp.
7 JOHN COPP, PLAINTIFF'S WITNESS, SWORN
8 THE CLERK: Please be seated.
9 Please state your full name and spell your last name.
10 THE WITNESS: My name is John Michael Copp. Last name
11 is spelled C-o-p-p.
12 DIRECT EXAMINATION
13 BY MR. LONDON:
14 Q. Good afternoon, Mr. Copp. Can you begin, please, by telling
15 us if you know the defendant in this case, James Dalton Bell,
16 and if so, how long you have known him?
17 A. Yes, I know him, and I have known him for approximately 15
18 years.
19 Q. Is that as a friend, or how would you describe it?
20 A. As a friend, yes.
21 Q. Do you live in the Portland area?
22 A. Yes, I do.
23 Q. Are you aware that there was a search warrant executed at
24 Mr. Bell's home on November 6th?
25 A. Yes.
194
1 Q. A few days before that, did you and Mr. Bell take any kind
2 of a trip together, a road trip?
3 A. Yes, we did.
4 Q. All right. Can you tell us how and why that came about?
5 A. Is this the trip to Bend?
6 Q. Yes, please.
7 A. Yes. He wanted to see two houses in the Bend area that he
8 thought were CIA agents' houses, and he had addresses of the
9 houses and he just wanted to see them.
10 Q. And what did he -- what did he ask you along for?
11 A. Just to drive.
12 Q. So did you drive?
13 A. Yes, I did.
14 Q. Did you leave your home in Oregon?
15 A. Yes.
16 Q. Did you pick him up in Vancouver, Washington?
17 A. Yes, I did.
18 Q. Were you driving the car or was he driving the car?
19 A. I was driving. It was my car.
20 Q. Did he ask you to then take him to Bend or to go with him to
21 Bend?
22 A. Yes.
23 Q. Did you cross the Columbia River?
24 A. Yes, we did.
25 Q. South into Oregon?
195
1 A. Yes.
2 Q. All right. And did you drive to Bend?
3 A. Yes.
4 Q. What happened when you got to the Bend area?
5 A. We first went to a, a store where he could get a map of the
6 city, and then we figured out where the addresses were and went
7 to the two addresses.
8 Q. Did he happen to mention to you how he had obtained these
9 two addresses?
10 A. From the Internet, to my best recollection.
11 Q. And did he tell you whose addresses he believed these to be?
12 A. That I don't recall.
13 Q. And did he mention anything about the addresses belonging to
14 a CIA agent or someone at the CIA?
15 A. That, yes.
16 Q. But you don't recall the name?
17 A. No, I don't.
18 Q. Do you recall what the addresses were that you drove to with
19 him that day?
20 A. I do not.
21 Q. If I said some addresses, would it refresh your
22 recollection, any chance of that?
23 A. I don't really know.
24 Q. Well, if I asked you if you can remember if you were looking
25 for one on Dione Way, would that be familiar?
196
1 A. I honestly can't say so.
2 Q. Okay. Could you remember if one of them might have been on
3 Majestic Loop?
4 A. Yes, that I do remember. That would have been the one to
5 the northwest of the city of Bend proper that was in a -- like a
6 private -- almost a not quite gated subdivision, if you will.
7 Q. Did Mr. Bell tell you that the CIA had a big operation in
8 Bend?
9 A. I remember something along those lines, yes.
10 Q. When you got to these addresses, did he want to get out of
11 the car and look around?
12 A. Yes, he did.
13 Q. Did he actually want to go onto the property?
14 A. I assume so, if he wanted to get out of the car.
15 Q. Did you speak to him about the advisability of actually
16 going onto the property?
17 A. Yes, I did.
18 Q. What did you tell him?
19 A. Basically that if he got out of the car and started stalking
20 around that it was going to be a long walk home or a long walk
21 back to the bus station, because I wasn't going to hang around
22 if he was going to do that.
23 MR. LONDON: I would ask that Exhibit 236 be shown to
24 the witness.
25 Q. (Mr. London) Can you see that exhibit, sir?
197
1 A. Yes, I can.
2 Q. Is that --
3 A. I wasn't aware you could do it this way. Yes, I recognize
4 the house.
5 Q. What house is that?
6 A. That is -- that's the one that I mentioned that was in the
7 subdivision, to my recollection, to the northwest of town.
8 Q. All right. Did you take that picture?
9 A. No.
10 Q. Did Mr. Bell have a camera with him?
11 A. Yes, he did.
12 Q. Did he get out and take pictures?
13 A. He didn't get out of my car, but he did take pictures, I do
14 remember that.
15 Q. From -- through the passenger-side window?
16 A. Right.
17 Q. Do you remember how many pictures he took?
18 A. I couldn't say for certain. I thought it was one of this
19 house, and I thought one of the other house.
20 Q. Was this the only trip that you made with Mr. Bend [sic]
21 around about last summer or fall looking for addresses that he
22 had located, people he wanted to go find?
23 A. You say to Bend?
24 Q. Well, anywhere.
25 A. No, we made one other trip into Clackamas County.
198
1 Q. What was he looking for that time?
2 A. A government agent's house.
3 Q. You don't remember which government agent, do you?
4 A. No, I don't.
5 Q. You said you were a friend of Mr. Bell's. Did you at any
6 point speak with Mr. Bell about the advisability of going around
7 looking at or for the home addresses of government agents, or
8 anybody else, for that matter?
9 A. Yes. I communicated to him on several occasions, I believe,
10 that I didn't think it was a really good idea.
11 Q. Is it fair to say that you tried to dissuade him from doing
12 it?
13 A. Yes, I did.
14 Q. And did he give you any indication of whether he could be
15 persuaded to stop doing this?
16 A. Not so much as an affirmative or a negative, but that it was
17 something that he was pursuing, and that he was going to pursue
18 it, if you will. I can't remember any exact quotes.
19 Q. Is it fair to say that you came away with the impression
20 that nothing you could say was going to make a difference?
21 A. Eventually and finally, yes.
22 MR. LONDON: I'm not going to offer that exhibit at
23 this time, Your Honor.
24 THE COURT: 236?
25 MR. LONDON: 236.
199
1 THE COURT: Any objection to 236?
2 THE CLERK: It's not offered.
3 MR. LONDON: I have not offered it, Your Honor.
4 THE COURT: You haven't offered it. Okay. Then it's
5 cross-examination.
6 MR. LEEN: Thank you.
7 CROSS-EXAMINATION
8 BY MR. LEEN:
9 Q. Mr. Copp, is it true that you've made many road trips with
10 Mr. Bell?
11 A. Yes, it is.
12 Q. Mr. Bell would tell you that he believed that he was being
13 spied on by houses in his neighborhood.
14 A. Yes, he did.
15 Q. He told you he believed that he and you were being followed
16 by aircraft at night.
17 A. Yes.
18 Q. The two of you went to an airport and identified a private
19 airplane even by vin number on the tail of a plane he believed
20 was following him.
21 A. That would be correct. At the Troutdale Airport?
22 Q. Yes, sir.
23 A. I can't say specifically that the airplane that I was
24 looking at was one that the government used, but it was of the
25 same make, model, and color scheme. In other words, a Cesena
200
1 172.
2 Q. And did you believe that the two of you were being followed
3 by an aircraft?
4 A. The last night when we went to Rocky Butte, I was convinced
5 that we were being followed because we --
6 Q. You said last night or the night?
7 A. The -- it was a night shortly before he was taken into
8 custody; the night that we went to the Troutdale Airport.
9 Q. Yes, sir.
10 A. We were heading back into the city of Portland westbound on
11 Interstate 84 and I noticed an airplane with the similar
12 lighting markings and flight characteristics, low altitudes, low
13 speed, that seemed to just magically appear and follow us
14 westbound on the freeway. And Jim asked me to drive him up to
15 the top of Rocky Butte to see if we could spot the airplane, and
16 we did, and the whole time that we were at the top of Rocky
17 Butte watching the airplane, it was circling roughly a little
18 higher than Rocky Butte, so approximately a thousand feet above
19 the ground, just in a lazy circle the whole time that we were
20 there.
21 Q. Has Mr. Bell talked to you about the fact that he felt that
22 he was being stalked by government agents?
23 A. Yes, he has.
24 Q. On more than one occasion?
25 A. Yes.
201
1 Q. You say that you have known Mr. Bell for 13 years?
2 A. Approximately.
3 Q. Approximately.
4 A. Right.
5 Q. What is your occupation?
6 A. Currently I'm unemployed.
7 Q. Were you ever in law enforcement?
8 A. Yes, I was.
9 Q. And what was that?
10 A. I was a police officer in the city of Portland, Oregon, and
11 also in the town of Quincy, Washington.
12 Q. All right. For how long were you in law enforcement?
13 A. Approximately seven years altogether, if you count the
14 military time.
15 Q. Now, on the trip to -- that you took with Mr. Bell to Bend,
16 Oregon, for him to locate these addresses, did he ever confront
17 anybody?
18 A. No.
19 Q. To your knowledge, or did he have any weapons with him?
20 A. None seen and none inferred.
21 Q. Any chemicals with him?
22 A. None.
23 Q. Would it be fair to say that Mr. Bell has a very curious
24 nature and curious mind?
25 A. Most definitely.
202
1 Q. Would it be fair to say that he felt that -- have you ever
2 heard the name Jeffrey Gordon?
3 A. Oh, yes.
4 Q. Did Mr. Bell mention that name to you?
5 A. Quite often.
6 Q. In what context?
7 A. That he thought that Mr. Gordon was -- how shall I say? --
8 running an operation of looking into his life from every angle
9 and aspect, if you will. Basically following him around and --
10 Q. Did he tell you when this started?
11 A. Specifically, no.
12 Q. Any particular event which he -- which he said that it
13 began?
14 A. As a direct communication from Jim, no, but my recollection
15 is that it was around the first time that he got in trouble.
16 Q. Back in 1997?
17 A. I think that would be correct.
18 Q. Did Mr. Bell ever tell you about a man named Ryan Lund?
19 A. Yes.
20 Q. What did he tell you about Ryan Lund?
21 A. When he was incarc- -- when Jim was incarcerated in the
22 SeaTac area, I believe it was in the SeaTac area that Mr. Lund
23 was also a prisoner in the same facility and that they had had
24 some kind of confrontation. If I remember correctly, I think
25 Jim said that Mr. Lund assaulted him.
203
1 Q. Did Mr. Bell say anything about government involvement in
2 that assault?
3 A. Yes. He thoroughly believed that Mr. Lund was, shall we
4 say, an agent or an instrument of the government of the United
5 States.
6 Q. Did any of Mr. Bell's focusing on Mr. -- on Special Agent
7 Jeffrey Gordon have to do with Ryan Lund?
8 A. Jim believed that Mr. Gordon had put this Mr. Lund up to
9 assaulting him, as I remember.
10 Q. And when were these conversations that you had with him?
11 Can you give us an approximate -- was it after he was released
12 from prison?
13 A. Right. The first time. I would think that it was within
14 two or three months, possibly four months, before he was taken
15 into custody this last time.
16 Q. So if he was taken into custody in November, would -- about
17 the summertime, perhaps?
18 A. That sounds reasonable, yes.
19 MR. LEEN: I have no further questions. Thank you.
20 THE COURT: Redirect.
21 REDIRECT EXAMINATION
22 BY MR. LONDON:
23 Q. Mr. Copp, do you recall when Mr. Bell was actually arrested
24 on the current charges in November?
25 A. I think it was around the middle of the month.
204
1 Q. And do you recall that you were then contacted by Agent
2 Gordon and interviewed in connection with some of this activity
3 that we are all here about today?
4 A. Yes, I remember.
5 Q. Do you remember telling Agent Gordon that you had actually
6 been thinking of calling them because you were so concerned
7 about Mr. Bell's behavior?
8 A. Yes, I do.
9 THE COURT: Recross.
10 MR. LEEN: One second, Your Honor.
11 RECROSS-EXAMINATION
12 BY MR. LEEN:
13 Q. What were you -- what were you concerned about regarding Mr.
14 Bell's behavior?
15 A. To my recollection of our friendship over the years, he
16 seemed to be getting a lot more worried and a lot more, shall we
17 say, aggressive in his pronouncements, his ways of thinking. In
18 his conversations with me, it seemed like he was becoming more
19 and more concerned and worried about being followed and being
20 spied on, and he seemed to be getting -- I don't want to use --
21 paranoid, maybe.
22 Q. Did any -- did those pronouncements also have to do with --
23 more and more with his desire to turn the tables on Special
24 Agent Gordon so that he could see if he could find him?
25 A. I don't specifically remember him saying that he wanted to
205
1 find Agent Gordon. You mean his residence, is that it?
2 Q. Yes.
3 A. Specifically that, I don't remember.
4 Q. What do you recall him saying about Agent Gordon?
5 A. Well, he didn't like the guy, and that he was planning on
6 suing the federal government and, as a specific defendant, Agent
7 Gordon.
8 Q. Have you completed your answer?
9 A. I'm trying to think if there were any others, and I can't
10 recall.
11 Q. Did you ever hear the name Mike McNall?
12 A. Yes, I have. Yes, McNall.
13 Q. And how did McNall come up?
14 A. I honestly can't tell you. It's -- I'm not withholding
15 anything, it's that there were so many things that he said at
16 different times and different places. I do remember that name,
17 but I do not remember the context and what the conversation was.
18 MR. LEEN: Thank you very much.
19 THE COURT: The witness may be excused?
20 MR. LONDON: Yes, Your Honor.
21 THE COURT: You may be excused.
22 THE WITNESS: Thank you, sir.
23 (Witness excused.)
24 MR. LONDON: Call Scott Mueller.
25 SCOTT DEFOREST MUELLER, PLAINTIFF'S WITNESS, SWORN
206
1 THE CLERK: Please be seated.
2 Please state your full name and spell your last name.
3 THE WITNESS: Scott Deforest Mueller. M-u-e-l-l-e-r.
4 DIRECT EXAMINATION
5 BY MR. LONDON:
6 Q. Mr. Mueller, where do you live?
7 A. 63350 Majestic Loop, Bend, Oregon.
8 Q. How are you employed?
9 A. I'm a real estate agent for Eagle Crest Real Estate.
10 Q. Have you ever worked for the CIA?
11 A. No.
12 Q. Have you ever worked for any national security agency of the
13 United States?
14 A. I have not.
15 Q. Have you ever heard of an organization called ISTAC,
16 I-S-T-A-C?
17 A. I have not.
18 Q. Could you please look at Exhibit 236, which will now be
19 shown on the screen in front of you.
20 Please look at that image and tell us if you recognize what
21 it is.
22 A. Yes. That's our home on Dione Way in Bend, Oregon.
23 Q. Is that your current home?
24 A. It was our former residence.
25 Q. You are now at the Majestic Loop address?
207
1 A. Correct.
2 Q. How long ago did you move from Dione Way to Majestic Loop?
3 A. Almost two years.
4 MR. LONDON: Just one moment, please.
5 I ask that the witness now be shown Exhibit 150. And in
6 fact, this can be shown to the jury as well. This is in.
7 Q. (Mr. London) Mr. Mueller, if you would look at Exhibit 150
8 and tell us if you've ever seen this before?
9 A. No.
10 Q. This is an email. Please turn to page 2 of this email.
11 It's an email posted to the Cypherpunks list.
12 A. Yes, I have seen that.
13 Q. All right. There's a name there, your last name, Mueller.
14 A. Correct.
15 Q. And the first name Deforest X. Mueller.
16 A. Correct.
17 Q. And there's an address in Bend, Oregon.
18 A. Correct.
19 Q. What is that address that appears there?
20 A. That's my address in Bend, Oregon.
21 Q. Is your name Deforest X. Mueller?
22 A. No, it's not.
23 Q. And do you have the middle name Deforest Mueller, however?
24 A. Correct.
25 Q. Your name is Scott Deforest Mueller?
208
1 A. Correct.
2 Q. Is that telephone number that appears below the name and
3 address your telephone number?
4 A. That's my current telephone number.
5 Q. Do you have any earthly idea how that personal information
6 about you, albeit with your name somewhat wrong, appeared on a
7 search engine on the Internet related to the CIA or ISTAC or CIA
8 front organization in Bend, Oregon?
9 A. I have no idea how it got there.
10 Q. Will you turn to Exhibit 152, please.
11 MR. LONDON: This is for the witness only and not to be
12 posted to the jury.
13 Q. (Mr. London) Do you see that one in front of you now?
14 A. Yes.
15 Q. Do you recognize any information in this email?
16 A. Yes.
17 Q. What do you recognize?
18 A. It has my name registered in Oregon, car -- or previous
19 address in Washington, which we moved to Oregon from.
20 Q. There's also the name Kim Marie Mueller.
21 A. Yes. That's -- my wife's name is there, what type of
22 vehicles that we drive. License plate numbers.
23 Q. Is that information correct?
24 A. Yes.
25 Q. Will you turn to Exhibit 156.
209
1 MR. LONDON: Ask that it be shown to the witness only,
2 please.
3 Q. (Mr. London) Do you have that in front of you? Email from
4 James Bell dated 7/27 to Cypherpunks and John Young. Do you see
5 that one?
6 A. Yes.
7 Q. On CIA in Oregon. Do you see any information about yourself
8 in that email?
9 A. Yes. It includes a P.O. box that we had in Lake Chelan.
10 Our vehicles, again. My wife's name is there. Our previous
11 address in Wenatchee, Washington. All of -- and all of our
12 pertinent information.
13 Q. Where it says, "Looks like the Muellers got a new Chevy,"
14 did you get a new Chevy?
15 A. Yes. We purchased a vehicle when we moved to Oregon.
16 Q. Please turn to Exhibit 160. We will put these in front of
17 you on the screen. Email date of 10/28/2000 from Mr. Bell to
18 the Columbian and the Oregonian newspapers.
19 Can you see that email?
20 A. Yes.
21 Q. In full text. You appear to be "outed" as a CIA agent. Is
22 that correct?
23 A. Yes.
24 Q. Mr. Mueller, can you please tell us how that makes you feel?
25 A. Well, this is -- this is off the Internet, and if there's
210
1 other jokers out there that want to, they can click in and think
2 that I'm a CIA agent and maybe come after me.
3 Q. Let's turn to Exhibit 161, which will show up on your
4 screen.
5 Do you see this email dated 10/28/2000 from Mr. Bell to John
6 Young, entitled "CIA in Oregon, Intelink." Is there any
7 information on that one about you?
8 A. It gives a date of birth for both myself and my wife.
9 Q. Do you see the reference that person is now going to go to
10 Bend for photographic/research work?
11 A. Yes. It says that he is going to be coming to -- coming
12 to Bend. "I wouldn't mind a trip there for a little
13 photographic/research work."
14 MR. LONDON: Please show the witness Exhibit 183.
15 Q. (Mr. London) Actually, I'm going to ask if you can pull
16 Exhibit 183 from a binder that would have that exhibit to your
17 right on the tray table there and look at the hard copy of that
18 one. It should be a stapled packet of information.
19 A. Yes.
20 Q. Do you see the map that's included as part of 183?
21 A. Yes.
22 Q. Is there any indication on that map showing your former
23 residence on Dione Way in particular?
24 A. Correct.
25 Q. Do you see handwritten notations on the back of page 2,
211
1 902ALL?
2 A. Yes. That's our license plate numbers.
3 Q. Do you see VCV976?
4 A. Correct.
5 Q. Is that also a license plate number for you?
6 A. Correct.
7 MR. LONDON: Please show the witness Exhibit 185.
8 Q. (Mr. London) Do you see that email in front of you? Email
9 dated 11/4 from Mr. Bell to the Cypherpunks. "CIA in Oregon,
10 Intelink." Do you see anything about yourself in that one?
11 A. Yes. It's indicating me as a CIA representative in Bend,
12 Oregon.
13 Q. Does it include your current address on Majestic Loop?
14 A. Yes, it does.
15 Q. Do you see a reference to two vehicles?
16 A. Yes, on the bottom. With license plate numbers.
17 Q. Correctly identified?
18 A. Yes.
19 Q. Okay. Please look --
20 A. It says they are in the driveway.
21 Q. I'm sorry?
22 A. It says they're in the driveway.
23 Q. All right. Using the binders now, please look at Exhibit
24 210.
25 The first three pages of that exhibit, do you see numerous
212
1 addresses and neighbors associated with your former residence on
2 Dione Way?
3 A. Yes.
4 Q. 20865 Dione Way.
5 A. Yes.
6 Q. Do these appear to be DMV printouts?
7 A. Yes.
8 Q. Can you turn to the fourth page of that packet.
9 Do you see any information about yourself?
10 A. The fourth page?
11 Q. Yes.
12 A. It's about a Donald Deforest in northwest Portland.
13 Q. Is there any reference on that page to your wife?
14 Actually, we have it on the screen, so why don't you look at
15 it on the screen.
16 A. Our vehicles, license plate numbers. My name, my wife's
17 name, date of birth, previous addresses in Washington, and --
18 two previous addresses in Washington.
19 Q. I'm going to show you the sixth page of that exhibit now.
20 What do you see on that?
21 A. My name, my bank's name.
22 Q. Is that --
23 A. In Redmond.
24 Q. -- your bank?
25 A. Pardon?
213
1 Q. Your bank?
2 A. My bank is on there, that I do business with.
3 Q. Is that your bank, in fact?
4 A. Yes.
5 Q. Okay. What else?
6 A. It has a friend of mine name on here that lives in Cabo San
7 Lucas, Mexico, and his wife's name.
8 Q. Does this, too, appear to be a printout of a database search
9 of some kind?
10 A. Yes.
11 Q. Based on Department of Motor Vehicle's records?
12 A. Yes.
13 Q. Please look in the book at Exhibit 211. Or if it's more
14 helpful, we will put it up on the screen for you.
15 A. Yes.
16 Q. This appears to be numerous addresses of different people.
17 Do you recognize any of these addresses or any of these people?
18 A. I recognize the addresses on Dione Way.
19 Q. And whose addresses are they?
20 A. It's 20847 Dione Way, Bend, Oregon.
21 Q. Would these be addresses for your immediate neighbors at the
22 Dione Way address?
23 A. Yes.
24 Q. Are there at least six or seven such addresses listed?
25 A. At least six.
214
1 Q. Okay. We are going to put Exhibit 212 on the screen for
2 you. Please look at that.
3 What does this appear to be to you?
4 A. Another printout from the DMV, or something like that, with
5 license plate numbers, my name, my bank's name again.
6 Q. The Bank of the Cascades?
7 A. Correct.
8 Q. Is that P.O. box -- is that highway -- is that the address
9 for the bank?
10 A. Yes. In Redmond, Oregon. It has a friend of mine, John's
11 -- Ashe's name with his wife's name. Has my Dione Way address.
12 Q. So you have a friend named John Ashe, correct?
13 A. Yes.
14 Q. And his name is also printed out on that document?
15 A. Yes.
16 Q. Do you see a handwritten notation on this exhibit?
17 A. Yes.
18 Q. "No John or Anne Ashe in 2000 licenses." Can you read
19 that?
20 A. It says, "No . . . 2000 licenses. Not in 1996 either."
21 Q. Have you got any plausible explanation as to why you are
22 being identified in this manner in connection with a kind of CIA
23 operation front?
24 A. I don't.
25 Q. How were you notified that you had been targeted and
215
1 identified this way?
2 A. I was contacted by Jeff Gordon.
3 Q. And he told you that he had come across this information and
4 he told you you should know about it, is that correct?
5 A. That's correct.
6 Q. What was your reaction upon learning that you were being
7 focused on in this manner?
8 A. I felt violated. I felt afraid for myself and my family. I
9 have a wife and two young kids.
10 Q. In that regard, have you taken any steps to better ensure
11 the safety of your wife, your family, and yourself?
12 A. We now own three firearms.
13 Q. Have you ever owned firearms before you found out about
14 this?
15 A. No.
16 Q. Have you ever seen the defendant, James Bell, before today?
17 A. No.
18 Q. Have you ever met a man named John Young before today?
19 A. No.
20 Q. Have you ever heard of John Young --
21 A. No.
22 Q. -- before today?
23 A. No.
24 Q. Or before this case, I should say.
25 A. Before, no.
216
1 Q. The same question as to James Bell.
2 A. No.
3 THE COURT: Cross-examination.
4 CROSS-EXAMINATION
5 BY MR. LEEN:
6 Q. Good afternoon, Mr. Mueller.
7 A. Good afternoon.
8 Q. Mr. Mueller, Mr. Bell, you indicated this is the first time
9 you have ever seen him?
10 A. Correct.
11 Q. So he never did contact you?
12 A. No.
13 Q. When did Agent Gordon notify you of this, of this
14 information regarding these searches and these Internet
15 postings?
16 A. Later last year. Late part of last year.
17 Q. Do you recall when?
18 A. September, October. October, maybe.
19 Q. Did he tell you how he found out about it?
20 A. He said he -- they recovered some items from -- and my name
21 and addresses were in the things that they recovered.
22 Q. During a search?
23 A. Correct.
24 Q. You indicated you are a realtor?
25 A. Correct.
217
1 Q. You have access to databases as a realtor.
2 A. We're not a multiple list, so, not really.
3 Q. So you don't ever do comparables, comparables of different
4 houses?
5 A. Just on our own property. It's resort sales.
6 Q. So you don't use computer databases at all?
7 A. Not generally, no.
8 Q. Are you a broker?
9 A. No.
10 Q. Sales?
11 A. Real estate agent.
12 Q. Have you ever worked for a broker?
13 A. Yes.
14 Q. Do you know what multiple listing is?
15 A. Correct.
16 Q. What is that? Will you explain it to the jury.
17 A. Where other brokerages cooperate with each other for
18 listings.
19 Q. And can you access certain databases if you're on a multiple
20 listing?
21 A. My portion of the resort is not multiple listing.
22 Q. I understand that, but if you were a broker who was just
23 a general broker, would Realtors in general be able to access
24 the --
25 A. Of course.
218
1 Q. -- database?
2 A. Of course.
3 Q. And would Realtors be able to access any other records on
4 data -- any other types of databases other than just listings of
5 houses?
6 A. Yes.
7 Q. Do they regularly do so?
8 A. Do real estate people do?
9 Q. Yes.
10 A. I would suppose.
11 Q. What kind of databases do they regularly access?
12 MR. LONDON: I'm going to object as to relevance.
13 THE COURT: Sustain the objection.
14 Q. (By Mr. Leen) Mr. Mueller, was anything -- was your mail
15 ever stolen?
16 A. I don't --
17 Q. To your knowledge.
18 A. -- believe so, no.
19 Q. Was your house ever broken into?
20 A. No.
21 Q. Were you aware of anybody trespassing on your property?
22 A. No.
23 Q. Were you aware of your wife or your children ever contacted
24 by an individual?
25 A. No.
219
1 Q. In reference to this information that you have told about?
2 A. No.
3 Q. If Jeff Gordon had not told you about this, you would have
4 been completely unaware of this fact, presumably?
5 A. Presumably.
6 Q. Do you know why a man named John Young would ask questions
7 about whether you were involved with the CIA?
8 A. No. No knowledge of that.
9 MR. LEEN: Thank you. I have no further questions.
10 THE COURT: Redirect.
11 MR. LONDON: No, Your Honor.
12 THE COURT: The witness may be excused.
13 (Witness excused.)
14 THE COURT: Next witness.
15 PHILLIP SCOTT, PLAINTIFF'S WITNESS, SWORN
16 THE CLERK: Please state your full name and spell your
17 last name.
18 THE WITNESS: My name is Phillip Scott. S-c-o-t-t
19 DIRECT EXAMINATION
20 BY MR. LONDON:
21 Q. Mr. Scott, would you please just tell the jury how you are
22 employed?
23 A. Yes. I'm a special agent with the United States Treasury
24 Inspector General for Tax Administration.
25 Q. And were you present at the execution of the search warrant
220
1 at the residence of Mr. Bell -- and for his car, for that
2 matter, as well -- in November of 2000 at 7214 Corregidor in
3 Vancouver?
4 A. Yes, I was present.
5 Q. Please turn your attention to Exhibit 183 in the binder that
6 is to your right on the rack there and tell us if you recognize
7 that.
8 A. Could you give me that number again?
9 Q. 183.
10 Do you have 183 in front of you?
11 A. Yes, I do.
12 Q. Can you describe generally what that is?
13 A. Yes. This is a computer printout of a map from the Mapquest
14 on the Internet showing an address at 20830 Dione Way in Bend,
15 Oregon.
16 Q. All right. Are you in fact the agent who found that packet
17 of papers that's marked Exhibit 183?
18 A. Yes, I am. This is what I found during the search.
19 Q. All right. And does that packet of papers appear to be in
20 the same or substantially the same condition as the way you
21 found them?
22 A. Yes, it is, sir.
23 Q. What part of the house did you find it in, by the way?
24 A. I found this in the -- it was between the -- it's in the
25 living -- in the dining room and the kitchen. There's a desk or
221
1 a, kind of an area with a long table, and this was in that
2 area.
3 Q. Okay.
4 MR. LONDON: We offer 183 at this time.
5 MR. LEEN: No objection.
6 THE COURT: 183 is admitted.
7 (Exhibit No. 183 was admitted.)
8 Q. (By Mr. London) Will you please turn to Exhibit 210, if you
9 will.
10 Do you recognize 210?
11 A. Yes, I do recognize 210.
12 Q. Were you in fact the agent who found Exhibit 210 during the
13 search?
14 A. Yes. I found this document.
15 Q. What is 210?
16 A. This is a printout of the Oregon State Department of Motor
17 Vehicles.
18 Q. And what does it appear to be a printout of?
19 A. It appears to be a printout of an address at Dione Avenue,
20 or Dione Way in Bend, Oregon.
21 Q. And is it just identified by the address or does it include
22 anybody's name as well?
23 A. There is a name Scott Mueller.
24 MR. LONDON: We offer Exhibit 210.
25 MR. LEEN: No objection.
222
1 THE COURT: 210 is admitted.
2 (Exhibit No. 210 was admitted.)
3 MR. LONDON: Nothing further for this witness.
4 THE COURT: Cross-examination.
5 CROSS-EXAMINATION
6 BY MR. LEEN:
7 Q. Mr. Scott -- Special Agent Scott, excuse me -- good
8 afternoon.
9 You indicated that you had seized several of those documents
10 that we have just gone through.
11 A. Yes, I did.
12 Q. And that was pursuant to the search warrant?
13 A. That is correct.
14 Q. Could you identify what authorization in the search warrant
15 under -- you seized those items?
16 A. Under the search warrant, I believe there were items in
17 there saying to look for anything with an address of Dione Way
18 in Bend, Oregon.
19 Q. Would you point to that, please.
20 MR. LONDON: Your Honor, I'm going to object to this
21 line of questioning. This is a legal matter that should have
22 been taken up as a legal matter.
23 MR. LEEN: It was denied, Your Honor. It was taken
24 up.
25 THE COURT: I will sustain the objection.
223
1 MR. LEEN: All right.
2 MR. LEEN: Well, could I be heard on that, Your Honor,
3 perhaps at a recess?
4 THE COURT: Jury, please go to the jury room. Do not
5 discuss the case among yourselves or with anyone else.
6 (Jury excused; 2:44 p.m.)
7 THE COURT: Mr. Leen.
8 MR. LEEN: Yes, Your Honor.
9 Under the search warrant it authorizes some specific things,
10 and it was primarily based -- I can generally say that they were
11 based on email of Mr. Bell and then items which related to
12 anything that would relate to federal, BATF, IRS, or other
13 government or law enforcement employees, anything to threaten
14 them, interfere with the operation, or the operation of
15 government, generally. And I think that's generally what --
16 THE COURT: Isn't this a back door challenge to the
17 validity of the search warrant?
18 MR. LEEN: No, because I want to ask him who asked him
19 to take documents --
20 THE COURT: Have you previously challenged the validity
21 of the search warrant?
22 MR. LEEN: Yes, Your Honor.
23 THE COURT: What was the decision?
24 MR. LEEN: It was denied. But I would like to ask this
25 agent why he took documents relating to a Scott Mueller, why he
224
1 took documents relating to a Ryan Lund, why he took documents
2 relating to a Mr. Saban. These are all items which --
3 THE COURT: What's the relevancy, if he was proceeding
4 according to the search warrant?
5 MR. LEEN: Well, because items --
6 THE COURT: That's valid.
7 MR. LEEN: These are not authorized under any of these
8 search warrants, Your Honor.
9 THE COURT: Pardon?
10 MR. LEEN: None of the documents relating to a Mr.
11 Lund, Mr. Saban, a Ms. King, or a Mr. Mueller were authorized by
12 the search warrant at all.
13 THE COURT: Well, he read you the portion of the search
14 warrant that he said that authorized him to seize, or other
15 agents to seize those items.
16 MR. LEEN: But that's not in -- he was mistaken. If he
17 looked at the attachment A, there's nothing that says to take
18 what he just said.
19 THE COURT: What do you mean, he was mistaken?
20 MR. LEEN: It's not authorized under the search
21 warrant, Your Honor.
22 THE COURT: He's authorized -- did a magistrate sign
23 it?
24 MR. LEEN: Signed the search warrant, but there were
25 specific items in attachment A that none of these items fit.
225
1 THE COURT: Ask him again, then, why.
2 Q. (By Mr. Leen) Why did you take documents relating to a
3 Scott Mueller? Or a location where a Scott Mueller lived, or
4 Deforest Scott Mueller, sir? Did someone ask you to do that?
5 A. I believe that in the search warrant we were looking for
6 certain items, and I believe I was told to find something
7 concerning the Dione Way.
8 Q. All right. Why did you take documents relating to Ryan
9 Lund?
10 A. I did not take any documents relating to Ryan Lund.
11 Q. Could you look at the search warrant. Do you have a copy of
12 the search warrant? I think it's 203. Could you look at 203
13 with attachments.
14 THE CLERK: 213.
15 MR. LEEN: 213. Thank you.
16 THE CLERK: 213, sir.
17 Q. (By Mr. Leen) And just as to the items to be seized, what
18 category did you feel that any document relating to Dione Way
19 fit under this search warrant with attachment with an
20 itemization of what you can seize?
21 MR. LONDON: Your Honor, I want to object.
22 THE COURT: I will sustain the objection.
23 MR. LONDON: We had two rounds of suppression motions.
24 THE COURT: I understand that.
25 MR. LEEN: Your Honor, the jury is not present. Could
226
1 I just ask him which authorization he was acting under?
2 THE COURT: He was acting under the search warrant.
3 MR. LEEN: But it doesn't say Dione Way. There's
4 nothing there that says Dione Way.
5 MR. LEEN: May I be heard? The search warrant
6 authorized search for evidence of stalking activity, as I
7 understand it.
8 MR. LEEN: No, it doesn't say that.
9 MR. LONDON: Government employees, people who might be
10 targets of that conduct.
11 MR. LEEN: It doesn't say that, Your Honor. It doesn't
12 say what Mr. London is telling you. It merely says BATF, IRS,
13 other government or law enforcement employees. It says
14 nothing --
15 THE COURT: I am going to sustain the government's
16 objection, counsel.
17 MR. LEEN: All right.
18 THE COURT: We're not going to go into the validity of
19 that search warrant any more.
20 MR. LEEN: Yes.
21 THE COURT: We've done it twice, haven't we?
22 MR. LEEN: Well --
23 THE COURT: More doesn't make it better.
24 MR. LEEN: It was denied twice, yes.
25 THE COURT: All right.
227
1 MR. LEEN: I apologize. Thank you, sir.
2 I don't believe there's anything else I have to ask the
3 witness. When the jury comes back, I will probably conclude my
4 questioning.
5 THE COURT: Okay.
6 MR. LEEN: Your Honor, when the jury comes back, I will
7 have no further questions to ask him.
8 THE COURT: Say it in front of the jury.
9 MR. LEEN: Pardon?
10 THE COURT: Say it in front of the jury.
11 MR. LEEN: I will. I will, sir.
12 MR. LONDON: I will have no redirect of this witness.
13 I was wondering if it might be possible to take a 30-second
14 break, bathroom break, before we call the jury back?
15 THE COURT: Can you do that in 30 seconds?
16 MR. LONDON: Yes, I'm going to try. I can't say it
17 under oath, but if I have leave of the court, I will try.
18 THE CLERK: Don't touch that.
19 THE COURT: I've been asked not to touch that, so do
20 you want to take the afternoon break now?
21 MR. LEEN: This would be a good time.
22 THE COURT: Tell the jury we will be another 15
23 minutes.
24 MR. LEEN: Thank you.
25 THE COURT: But still do not discuss the case.
228
1 The witness may step down, but I want the witness on the
2 stand when we start again.
3 MR. LEEN: Okay.
4 THE COURT: Court's in recess.
5 (Recessed at 2:50 p.m.)
6 (Jury not present.)
7 THE COURT: Yes, Mr. Leen.
8 MR. LEEN: Your Honor, I was wondering -- I don't want
9 to run afoul of the court's ruling. Could I be allowed to ask
10 the witness if he seized documents relative to certain names
11 like Ryan Lund? Not why, but if he did under the warrant.
12 Would I be allowed to ask that question?
13 THE COURT: Well, doesn't the return speak for itself?
14 MR. LEEN: Well, the return is not in evidence, Your
15 Honor.
16 THE COURT: The return is in the file.
17 MR. LEEN: Well, the reason I wanted to ask it is
18 because prior witnesses have testified that Mr. Bell was -- had
19 in his mind this conspiracy that involved as a participant Ryan
20 Lund, and I think it's important to show that he was also
21 investigating that aspect of the conspiracy as well.
22 THE COURT: You are back to the back door challenge to
23 that warrant. It's either valid or it isn't. The court has
24 ruled at least three times it is valid.
25 MR. LEEN: I'm not challenging the --
229
1 THE COURT: I'm asking you again, does the return,
2 which is on file, show the document that you are referring to?
3 MR. LEEN: Yes, it does.
4 THE COURT: Well, then it's in there.
5 MR. LEEN: Could we offer the return then as an exhibit
6 and introduce that in evidence?
7 THE COURT: As to what?
8 MR. LEEN: To show what was taken from Mr. Bell's
9 residence.
10 THE COURT: Government?
11 MR. LONDON: I guess I'm curious as to what the purpose
12 is and the relevance of putting the return in. It's not an
13 exhibit. The exhibits are the evidence. The return is not the
14 evidence. Yet again, it is a way to try to somehow undermine --
15 THE COURT: I understand.
16 MR. LONDON: -- the warrant.
17 MR. LEEN: No, we're not trying -- I'm not trying to
18 undermine -- I want to show that there were documents, and that
19 Mr. Bell had documents where he was investigating, just like he
20 was investigating Mr. Mueller and Mr. Gordon --
21 THE COURT: What question would you ask this witness if
22 the jury was present?
23 MR. LEEN: During the course of the search were there
24 also numerous documents seized with the name Ryan Lund on them?
25 And then that -- yes or no, and that would be it. I wouldn't
230
1 ask why; I would just ask if.
2 THE COURT: Well, ask him.
3 MR. LEEN: Were there documents, numerous documents
4 seized during the course of the search, agent, that had the name
5 Ryan Lund on them?
6 MR. LONDON: I would like to ask the question be a
7 personal knowledge question. Did he seize any documents
8 relating to Ryan Lund.
9 THE COURT: I understand.
10 Do you understand the question he's asked you?
11 THE WITNESS: Yes, I do.
12 THE COURT: Go ahead, if you can answer it.
13 THE WITNESS: I did not seize any documents that had
14 Ryan Lund on it.
15 MR. LEEN: May I ask one other question, Your Honor,
16 just at this point?
17 THE COURT: Well, what if there was, then what?
18 MR. LEEN: Well, it tends to corroborate that the
19 defendant was researching a theory that he had, much to my --
20 THE COURT: By some --
21 MR. LEEN: A theory that he was investigating.
22 THE COURT: Like some other inmate in a prison setting
23 that beat him up?
24 MR. LEEN: Well, as --
25 THE COURT: What are you going to prove by that?
231
1 MR. LEEN: As preposterous as the theory sounds, if
2 that was the intent of the defendant doing research into Jeffrey
3 Gordon, it would negate the intent to injure or harass, which is
4 an element of the offense.
5 MR. LONDON: I have no understanding how his interest
6 in Ryan Lund explains his showing up at Agent Jeffrey Gordon's
7 house.
8 MR. LEEN: He never did show up at Jeffrey Gordon's
9 house.
10 MR. LONDON: He thought he had and was trying to. We
11 cut it off before it happened.
12 MR. LEEN: Your Honor, this is --
13 THE COURT: So where are we?
14 MR. LEEN: Well, we're awaiting a ruling as to whether
15 we can ask that question.
16 THE COURT: Are you asking to recall this witness on
17 cross-examination?
18 MR. LEEN: Yes, Your Honor.
19 THE COURT: For that one question?
20 MR. LEEN: Yes.
21 THE COURT: That will be denied.
22 Any other?
23 MR. LONDON: We have no redirect of the witness.
24 MR. LEEN: I will say I have no further questions in
25 front of the jury.
232
1 THE COURT: All right. Then you say you have no
2 further questions.
3 Bring the jury.
4 MR. LEEVER: Subpoenas motions.
5 THE COURT: Oh, yes, another question that has been
6 brought to my mind. Is there a question now of some proposed or
7 witnesses dangling out there waiting to know what their fate
8 is? Whether they are going to be called or not?
9 MR. LEEN: I think Your Honor has settled that issue
10 and quashed all the defense subpoenas.
11 MR. LONDON: I think you have quashed --
12 THE COURT: Well, it's come to my attention it hasn't
13 been resolved.
14 MR. LEEN: Okay. It was resolved to my mind. I'm not
15 aware of any witnesses that we have under subpoena at this
16 point.
17 MR. LONDON: My understanding is that the court quashed
18 the marshal's subpoenas, the ones that were issued to deputy
19 U.S. marshals, and to any of the former or present assistant
20 U.S. attorneys that were served, perhaps with the idea that
21 those could be retooled in the event that --
22 THE COURT: I understand there is a U.S. marshal or
23 former U.S. Marshal out of state.
24 MR. LONDON: Mr. Brizzell.
25 THE COURT: I don't know.
233
1 MR. LEEN: Yes, there was, but my understanding was
2 that Your Honor has denied the request of the defense to call
3 any deputy United States marshals. But I guess there is a Mr.
4 Brizzell. The reason that Mr. -- the defense would want to call
5 him is that he was present during a 1998 search of Mr. Bell's
6 residence in connection with his supervised release violation.
7 Mr. Bell believes that this marshal has knowledge of the fact
8 that there was an illegal bugging or tracking device removed
9 from either his car or his house during the course of that
10 search and that that marshal has knowledge of that.
11 MR. LONDON: Your Honor, there was a defense request of
12 the government in discovery for information relating to any and
13 all tracking devices or surveillance -- for surveillance
14 activity, electronic or otherwise, done on the defendant. In
15 accordance with my policy of open file discovery, all of that
16 information was given to the defense, and there was nothing that
17 Mr. Brizzell or anyone else, other than what we have told them
18 about, could add or shed light in that regard.
19 THE COURT: Do you have all discovery, Mr. Leen?
20 MR. LEEN: I have all the discovery that the
21 prosecution has given me.
22 THE COURT: As to bugging devices or whatever?
23 MR. LEEN: Mr. London made that representation, and any
24 court authorized devices were disclosed to the defense, as well
25 as Mr. Wilson -- or Mr. Walsh in an undercover capacity, that
234
1 was disclosed to the defense.
2 THE COURT: That's the end of that.
3 MR. LEEN: We're alleging -- unauthorized. Government
4 -- unauthorized government bugging that this marshal is aware
5 of.
6 THE COURT: How do you prove a negative?
7 MR. LEEN: Mr. Bell seems to believe that that's so.
8 THE COURT: Other than what Mr. Bell believes.
9 MR. LEEN: Well, you raise a good point, Your Honor.
10 THE COURT: How do you prove a negative?
11 MR. LEEN: I would ask the question of the witness, and
12 he would say yes or no.
13 MR. LONDON: We have asked -- we have put the question
14 to the witness, and he has said that it's the most absurd thing
15 he has ever heard of, and I don't see why he should have to make
16 a plane trip from the state of Arizona to come here and say that
17 in that chair.
18 THE COURT: That witness, if he hasn't heretofore been
19 released, is now released, period.
20 Anything further?
21 To both parties: All attorneys, whomever they might be,
22 either defense counsel or United States attorneys, all United
23 States marshals, all law enforcement, whoever they might be, who
24 have been served subpoenas subject to coming here are now
25 dismissed unless the defendant, as I told you, I think it was
235
1 Monday, comes up, either in writing or orally, reasons why they
2 should not be called. Commencing right now, Mr. Leen.
3 MR. LEEN: I have nothing to submit other than what I
4 have already submitted, Your Honor.
5 THE COURT: They are then dismissed from this case and
6 from any and all subpoenas.
7 MR. LEEN: Your Honor, there are three other defense
8 witnesses that we have at least been given subpoenas for. One
9 is a Ms. King in Vancouver, one is a --
10 THE COURT: Who is Ms. King?
11 MR. LEEN: Ms. King is an elderly lady who lives in a
12 house immediately adjacent to Mr. Bell's residence. He believed
13 that she is aware of government surveillance on his, from her
14 residence.
15 THE COURT: That will be denied.
16 MR. LEEN: Mr. Saban is another neighbor, who I think
17 lives across the street. Mr. Bell submits that Mr. Saban was
18 allowed his home to be used by the government for surveillance
19 of him.
20 THE COURT: That will be denied.
21 MR. LEEN: And Ryan Lund is a biker who --
22 THE COURT: A what?
23 MR. LEEN: A biker.
24 THE COURT: What's a biker?
25 MR. LEEN: A Gypsy Joker biker who rides motorcycles.
236
1 A biker. And he --
2 THE COURT: Well, wait a minute. Is that a negative
3 connotation, biker? Are you saying he rides a motorcycle, or a
4 bicycle?
5 MR. LEEN: I think he has referred to himself as a
6 biker. I don't think it's a negative --
7 THE COURT: He rides a motorcycle.
8 MR. LEEN: Yes, Your Honor. And he's a member of the
9 Gypsy Joker Motorcycle club, and he is the individual whom Mr.
10 Bell contends, at the behest of government agents, beat him up.
11 And he is, I don't know --
12 THE COURT: We have another person unrelated to this
13 case beating up the defendant?
14 MR. LEEN: That's the individual in 1997 who -- we
15 discussed him before. Mr. Bell wants to establish the
16 truthfulness of that accusation, because he believes that's the
17 reason why the government engaged in illegal surveillance of
18 him. That's his contention.
19 MR. LONDON: May I respond in regard to that subpoena?
20 THE COURT: Go ahead.
21 MR. LONDON: Your Honor, the theory of the defendant is
22 that Ryan Lund was -- beat him up at FDC SeaTac at the behest of
23 the government in an attempt to coerce him to taking a guilty
24 plea in his 1997 prosecution. I can proffer that the incident
25 report for that at SeaTac shows that it happened after Mr. Bell
237
1 came --
2 THE COURT: We're talking about now a different person,
3 aren't we?
4 MR. LONDON: No, we're talking --
5 THE COURT: Not somebody who rides a motorcycle.
6 MR. LONDON: No, Ryan Lund is the individual who was
7 alleged to --
8 THE COURT: So Mr. Lund is back again?
9 MR. LONDON: Mr. Lund -- I don't know that Mr. Lund's
10 subpoena has been quashed. But if Mr. Lund's subpoena depends
11 on a showing of relevance, what I would like to proffer to this
12 court is that Mr. Lund, although he did get into an altercation
13 at SeaTac with the defendant, did so well after the defendant
14 had come to this court and pled guilty. So the theory doesn't
15 make any sense, such as it is. And we interviewed everyone, the
16 defense attorneys, the prosecutors, all of the people that Mr.
17 Bell wanted to have here under subpoena to support this theory
18 of his, and they have all said that it is the most patently
19 absurd thing that they have heard.
20 THE COURT: So what does Mr. Lund have to do with this
21 case?
22 MR. LEEN: Well, I don't know, Your Honor. They seized
23 all kinds of documents.
24 THE COURT: What does Mr. Lund got to do with the
25 stalking?
238
1 MR. LEEN: Well, the documents relative to Mr. Lund's
2 name, many of them were seized during the course of the search
3 of Mr. Bell's residence. So obviously it meant something to the
4 government because they seized documents with his name on it.
5 Any -- the return of the search warrant indicates on at least
6 five or six different categories of evidence seized that it
7 related to Ryan Lund.
8 Defendant had this --
9 THE COURT: Let's back up, Mr. Leen.
10 MR. LEEN: Yes, sir.
11 THE COURT: The defendant has no burden of proof or
12 disproof in this case. Period.
13 MR. LEEN: That's correct. Yes, sir.
14 THE COURT: And he's facing the stalking charge.
15 MR. LEEN: Yes, sir.
16 THE COURT: Will you tell me what the relationship is,
17 this so-called theory, of unlawful wire tapping, searching, and
18 everything else? What's that got to do with it?
19 MR. LEEN: Well, Your Honor, if -- I would submit that
20 what it has to do with it is it negates -- the government has
21 introduced evidence back as early as 1994 to show the
22 reasonableness of the fear that Agent Gordon and Agent McNall
23 felt because of the defendant. What we're trying to show by
24 this conspiracy that the defendant contends is truth, not a
25 conspiracy and not a delusion, as many would say, but he says is
239
1 true, if that's the purpose of his conducting this investigation
2 to prove the truth of that --
3 THE COURT: He has no burden of proof.
4 MR. LEEN: No, but it's part of his defense to negate
5 the fact that he had the intent to hurt, harass, or injure.
6 THE COURT: Well, at least one witness, I mean, has
7 been on the stand. He testified how it affected him and his
8 family. What's going to overcome that?
9 MR. LEEN: Mr. Lund --
10 THE COURT: It's up to the jury whether that's
11 reasonable. They heard the witness so far.
12 MR. LEEN: Well --
13 THE COURT: So it's up to the jury whether that fear or
14 anxiety or whatever you have is reasonable or not.
15 MR. LEEN: Well, this goes to the fear or
16 reasonableness of Mr. McNall and Mr. Gordon, not to Mr.
17 Mueller. Mr. Mueller, this -- the Lund theory has no relevance.
18 THE COURT: Pardon?
19 MR. LEEN: The theory about Mr. Lund that Mr. Bell had
20 is irrelevant to Mr. Mueller, but it is probative of Mr. --
21 THE COURT: Of what?
22 MR. LEEN: Mr. Bell's intent when he crossed the state
23 line in October and November regarding Mr. Gordon and Mr. --
24 THE COURT: Well, Mr. Lund has nothing to do with
25 that.
240
1 MR. LEEN: Well, I understand.
2 THE COURT: Would have, could have, should have.
3 What's Mr. Lund have to do with what's in your client's mind?
4 MR. LEEN: This is a point that I have discussed with
5 him several times.
6 THE COURT: Well --
7 MR. LEEN: With Mr. Bell. Mr. Bell believes that it is
8 very important that this evidence be presented in court.
9 THE COURT: I'm denying it.
10 MR. LEEN: All right.
11 Are you ready for the jury?
12 MR. LEEN: Yes.
13 THE COURT: Bring the jury.
14 (Jury present; 3:30 p.m.)
15 THE COURT: All right. Let the record reflect the jury
16 has returned.
17 Any further cross-examination?
18 MR. LEEN: No, Your Honor.
19 THE COURT: Any redirect?
20 MR. LONDON: No, Your Honor. We would call Brian --
21 THE COURT: Next witness.
22 MR. LONDON: We would call Brian Kenney.
23 THE COURT: The witness may step down and is excused.
24 (Witness excused.)
25 BRIAN TIMOTHY KENNEY, PLAINTIFF'S WITNESS, SWORN
241
1 THE CLERK: Please state your full name and spell your
2 last name.
3 THE WITNESS: Brian Timothy Kenney. K-e-n-n-e-y.
4 DIRECT EXAMINATION
5 BY MR. LONDON:
6 Q. Mr. Kenney, good afternoon. I'm going to ask you to begin
7 just by telling the jury how you are employed.
8 A. Yes. I'm employed at Blue Cross and Blue Shield of
9 Alabama. I'm an operations manager in the claims division.
10 Q. IN your capacity as an operations manager in the claims
11 division, do you function in any way as a custodian of records?
12 A. Yes, I do.
13 Q. I would like you to look at Exhibit 138 that's about to
14 appear on the screen in front of you, if you will. And when it
15 comes up, if you could take a look at it and tell us what it is,
16 I would appreciate it.
17 A. Yes. This is a claims report that gets mailed to the
18 subscriber, our contract member, whenever we pay a claim.
19 Q. And what does this particular claims report indicate with
20 respect to who it was sent to and on whose behalf and in what
21 regard?
22 A. Yes. We sent the claim to the address of Jeffrey Gordon,
23 which is listed on our records as 8300 Southwest Chelan Street
24 in Tualatin, Oregon. And if you could move back to the top,
25 please.
242
1 It was sent on behalf of Barbara Gordon. She was the
2 patient, and the contract holder is, of course, Jeffrey Gordon.
3 Q. All right. Can you look at Exhibit 139, actually, as well,
4 and tell us what that is.
5 A. Yes. Medical services were provided to -- for Joshua
6 Gordon. And again, the contract holder was Jeffrey Gordon.
7 Q. And was that also mailed to the 8300 Chelan address in
8 Tualatin, Oregon?
9 A. Well, this one was mailed to a P.O. box in Tualatin, Oregon.
10 Q. Okay. With respect to the one that was mailed to 8300
11 Chelan, do you have any indication as to when Blue Cross Blue
12 Shield of Alabama sent these claims reports out to the Gordons?
13 A. Yes. October 16th of 2000.
14 Q. Would those have been placed in the United States mails?
15 A. Yes, sir.
16 Q. Can you please tell us what the claims report number is on
17 Exhibit 139?
18 A. Yes. That, that claim number, what we call a claim number
19 for our records, is 595-2865313.
20 Q. All right.
21 MR. LONDON: And if the witness could be shown 138
22 again.
23 Q. (By Mr. London) I will ask you to do the same thing and
24 tell us what the claims report number is for Exhibit 138.
25 A. This claim number is 595-2873477.
243
1 Q. Now, are these duplicates of what was sent to the Gordons on
2 October 16th, 2000?
3 A. Yes, sir.
4 Q. The information that is contained in these insurance claims
5 reports about Joshua Gordon, for example, or Barbara Gordon,
6 does Blue Cross Blue Shield of Alabama make this information
7 publicly available in any way?
8 A. No, sir.
9 Q. And is this kind of information kept by Blue Cross Blue
10 Shield of Alabama with an understanding that it contains private
11 information?
12 A. Yes, sir.
13 Q. Are you subject to privacy laws in how -- in terms of how
14 you guard and keep information about patients with insurance
15 claims?
16 A. Yes, sir.
17 Q. Do you take steps to secure the integrity of the data bases
18 on which you keep these kinds of claims, reports, and
19 information?
20 A. Yes, sir.
21 MR. LONDON: I offer Exhibit 138.
22 MR. LEEN: I have no objection.
23 THE COURT: 138 is admitted.
24 (Exhibit No. 138 was admitted.)
25 MR. LONDON: And 139.
244
1 MR. LEEN: I have no objection.
2 THE COURT: 139 is admitted.
3 (Exhibit No. 139 was admitted.)
4 MR. LONDON: I have nothing further, sir.
5 THE COURT: Cross-examination.
6 CROSS-EXAMINATION
7 BY MR. LEEN:
8 Q. Good afternoon, Mr. Kenney.
9 Mr. Kenney, I heard you say that 138 and 139 are duplicate
10 claims.
11 A. They were duplicate claim reports.
12 Q. What does that mean, a duplicate claim report?
13 A. Well, of course, it's not the original. The original was
14 mailed out to Mr. Gordon's address on October 16th. And this
15 exhibit, I believe, is one that we recreated and sent to the
16 U.S. Attorney's office.
17 Q. Did you mail out checks when you mailed out the claim
18 reports?
19 A. Yes, sir.
20 Q. And to your knowledge, were those checks cashed?
21 A. I'm not aware if the checks were cashed or not.
22 Q. Were you asked by the U.S. Attorney to determine if the
23 checks were cashed?
24 A. No.
25 Q. Do you have any knowledge that -- did the Gordons, either
245
1 Mr. or Mrs. Gordon, call you up and indicate that they had not
2 received the check or the letter that accompanied it?
3 A. I'm not aware that they did.
4 Q. Did you ever issue a second claim, a second check, in
5 connection with either 138 or 139?
6 A. Not that I'm aware of.
7 Q. Back in October of 2000, that's when you mailed these out?
8 A. Yes, sir.
9 Q. Were you aware that there was any unauthorized entry in any
10 of your computer systems?
11 A. I'm not aware of that.
12 I'm not sure I understand.
13 Q. Well, you say that the information that's -- that generates
14 these checks and these claims are kept, I guess, on a server, a
15 secure server.
16 A. Yes. It's a mainframe server.
17 Q. Are you aware of whether your server was hacked, whether
18 someone gained information from your server in October of 2000?
19 A. I'm not aware that that happened. I mean, I don't know.
20 You know, I know it -- I did not hear that it had happened.
21 Q. All right. And is that something that you would be made
22 aware of if it had?
23 A. Possibly.
24 MR. LEEN: I have no further questions. Thank you.
25 THE COURT: Redirect.
246
1 REDIRECT EXAMINATION
2 BY MR. LONDON:
3 Q. I just want to clarify something. These two Exhibits, 138
4 and 139, these are recreations of what would have been sent to
5 the Gordons, correct? They're not Xerox copies of what was sent
6 to the Gordons.
7 A. That is correct.
8 Q. All right. And so these were -- these were made by you upon
9 request of the government for the purposes of this
10 investigation, correct?
11 A. Correct.
12 Q. All right. And you were asked to recreate what would have
13 been sent to the Gordons based on information in your database,
14 correct?
15 A. That is correct.
16 Q. All right. And the address that you had for Jeffrey Gordon
17 was at 8300 Chelan in Tualatin, correct?
18 A. That is correct.
19 MR. LONDON: Thank you.
20 THE COURT: Recross.
21 MR. LEEN: Yes.
22 RECROSS-EXAMINATION
23 BY MR. LEEN:
24 Q. Mr. Kenney, can you tell me why there's two different
25 addresses for Mr. Gordon?
247
1 A. Yes. When the reports were sent out -- actually, I cannot
2 tell you why. The address comes off our database, so if the --
3 if the address changed since we sent out the recreations, then
4 it's -- then it would -- it would print out the one we printed
5 out. You know, when we were subpoenaed the records, it would
6 have put the address that was currently on our system.
7 Q. So this is -- then this might not be an accurate recreation
8 of what was sent out. It's altered in some way.
9 A. Well, if our -- if our address record was changed, then the
10 address would be -- would be different.
11 Q. Can you tell me when the government asked you to mail these
12 documents to them or recreate them?
13 A. I do not have that at my disposal. I have it in my folder.
14 Q. Do you remember approximately when?
15 A. It was, I think, in February.
16 Q. February of 2001?
17 A. I believe so. But I have that in my folder in the other
18 room if you need me to get that.
19 Q. No, that will be fine. Thank you very much.
20 A. Sure.
21 THE COURT: May this witness be excused?
22 MR. LONDON: I did have one follow-up.
23 THE COURT: All right.
24 REDIRECT EXAMINATION
25 BY MR. LONDON:
248
1 Q. The second address, the box number, as opposed to the 8300
2 Chelan address, are you aware that that is an address that
3 Barbara Gordon took out --
4 MR. LEEN: Objection, Your Honor. This is a question
5 that is just hearsay.
6 THE COURT: You can cross-examine him on it.
7 Q. (By Mr. London) Are you aware that that's --
8 MR. LEEN: This is a direct witness, Your Honor.
9 THE COURT: Counsel, I said you can cross him. He can
10 recall him.
11 Q. (By Mr. London) Are you aware that that is a box number
12 Barbara Gordon took out after mail was stolen from her address
13 at 8300 Chelan?
14 MR. LEEN: Objection. Hearsay.
15 THE COURT: He may ask the question.
16 Does the witness understand the question?
17 THE WITNESS: Yes, sir.
18 THE COURT: You may answer.
19 A. I'm not aware.
20 Q. (By Mr. London) All right. Is the ex- -- is an explanation
21 for why there's a box number address as well as the 8300 Chelan
22 Tualatin address in your database? Is the explanation for that
23 consistent with the fact that the -- that the database records
24 information that has been sent in by the subscriber, or the
25 person on whose behalf the claims report is issued, and that
249
1 address might come up in the course of your recreating a claim
2 report that was sent out earlier to another address?
3 A. That's correct.
4 THE COURT: Recross-examination.
5 MR. LEEN: Thank you.
6 RECROSS-EXAMINATION
7 BY MR. LEEN:
8 Q. Mr. Kenney, do you know why the addresses were different?
9 A. The address was changed. I do not know why the address was
10 changed, sir; who requested the change of address.
11 Q. But again, the checks were cashed?
12 A. I'm not aware if they were cashed or if they were not
13 cashed. I'm not sure.
14 MR. LEEN: No further questions.
15 THE COURT: Redirect.
16 REDIRECT EXAMINATION
17 BY MR. LONDON:
18 Q. Mr. Kenney, is there anything at all in either of those two
19 claims reports to indicate that they were accompanied by checks?
20 A. The benefits paid on the very right-hand side, that
21 indicates that -- well, I take that back. We pay the provider.
22 So if the provider was paid, of course, then there was no check
23 involved in these claims reports at all. The providers were
24 paid on these claims -- this claim.
25 Q. So there's nothing in these claims reports to indicate that
250
1 if Jeff or Barbi Gordon came home, found these claims reports in
2 their mailbox, opened it up, there would be a check in there
3 along with these statements?
4 A. Could you restate that?
5 Q. Mr. Leen asked you about checks and whether checks were
6 cashed. I'm asking you if there's anything in these claims
7 reports that suggests that checks were actually sent in the
8 envelopes in the U.S. Mail with these claims reports?
9 A. No.
10 MR. LEEN: All right. Thank you.
11 THE COURT: Recross.
12 MR. LEEN: No questions, Your Honor.
13 THE COURT: The witness may be excused.
14 (Witness excused.)
15 THE COURT: Next.
16 JOHN RABATIN, PLAINTIFF'S WITNESS, SWORN
17 THE CLERK: Please state your full name and spell your
18 last name.
19 THE WITNESS: John Rabatin. R-a-b-a-t-i-n.
20 DIRECT EXAMINATION
21 BY MR. LONDON:
22 Q. Mr. Rabatin, we're going to be going through a number of
23 exhibits with you, so I'm going to ask you to pull that set of
24 binders close enough to you so you can make it handy to yourself
25 during the course of your testimony. We will also, for your
251
1 aid, be putting up copies of some of these exhibits on the
2 screen in front of you.
3 Mr. Rabatin, can you begin by telling us how you are
4 employed?
5 A. I'm employed as a special agent with the Treasury Inspector
6 General for Tax Administration Strategic Enforcement Division.
7 Q. And do you specialize in any particular aspects of
8 enforcement work?
9 A. Yes. I'm a criminal investigator specialist. I specialize
10 in recovery of electronic data.
11 Q. From computers?
12 A. Yes.
13 Q. What training have you had for that in particular?
14 A. Over the past, about 12 years, I've had various training
15 courses, starting in 1993 with the federal police department in
16 computer evidence recovery. Also again in 1995 and later in
17 1998 at the Federal Law Enforcement Training Center in Glynco,
18 Georgia, where I went, attended a small computer evidence
19 recovery specialist classes. We also have continuous
20 professional training covering various aspects of evidentiary
21 recovery and other computer related subjects.
22 Q. All right. Now, were you present at the execution of the
23 search warrant at defendant James Bell's residence at 7214
24 Corregidor on November 6th of 2000?
25 A. Yes, I was.
252
1 Q. And did you personally find and seize any documents?
2 A. Yes, I did.
3 Q. Did you personally find and seize any computers?
4 A. Yes, I did.
5 Q. All right. I show you three computers that are behind that
6 rack on the trolley cart. Do you recognize those computers?
7 A. Yes, I do.
8 Q. Are those the three computers that were taken from the
9 residence?
10 A. Yes, they are.
11 Q. I would like to ask you to turn to Exhibit 60, if you will,
12 please.
13 Can you tell us if you recognize Exhibit 60?
14 A. Yes, I do.
15 Q. What is that?
16 A. This is a document that I discovered at the residence during
17 the search warrant. I had a chance to review this at an earlier
18 date. I had taken this, called his case agent to determine
19 whether or not this was information that he was looking for. He
20 advised that, yes, it was. I therefore put it in an evidence
21 envelope, which had my initials, and this is that document.
22 Q. All right. Now, this is a handwritten letter, correct?
23 A. Yes, it is.
24 Q. And a transcript, a typewritten transcript of that letter
25 was prepared, correct?
253
1 A. That's correct.
2 Q. And you were shown that and you had a chance to compare the
3 accuracy of the typewritten transcript against the handwritten
4 text in this letter that was seized from the defendant's home,
5 correct?
6 A. Yes, I did.
7 Q. And can you vouch for the accuracy of the transcript that
8 was prepared that you reviewed?
9 A. Yes, I can.
10 Q. All right. Did you make a word-for-word comparison of the
11 handwriting to the words in the transcript?
12 A. Yes, I did.
13 Q. All right. Please look at what we've marked as Exhibit 61.
14 Tell us if that's the transcript.
15 A. Yes, it is.
16 Q. Can you tell us what this letter appears to be about?
17 A. From my reading it, it appears to be a letter in which the
18 author, Jim Bell, was attempting to have someone on his behalf
19 attempt to garner information regarding different people.
20 Q. This letter was dated what?
21 A. June 22nd, 1998.
22 Q. Okay. And it was to a "Dear Greg," correct?
23 A. That's correct.
24 Q. And is it your testimony that in this letter, Mr. Bell
25 appeared to be asking his friend Greg, or whoever Greg was, to
254
1 help him locate address information for people?
2 A. That's correct.
3 Q. All right. On the third page of the transcript, I direct
4 your attention to the fourth paragraph -- fourth or fifth full
5 paragraph, the one beginning, "which is derivative."
6 MR. LEEN: I'm sorry. May I ask, third page -- "3rd
7 of," or the third page of the transcript?
8 MR. LONDON: Third page of the transcript.
9 MR. LEEN: The actual pages of the transcript?
10 MR. LONDON: Yes.
11 All right at this time, before I ask you to read anything
12 from here, I would offer Exhibit 60.
13 MR. LEEN: No objection.
14 THE COURT: 60 is admitted.
15 (Exhibit No. 60 was admitted.)
16 Q. (By Mr. London) All right. Using the transcript, can you
17 please read the sentence beginning, "These people think they're
18 being cute."
19 MR. LEEN: Your Honor, I can't -- do you have it?
20 THE DEFENDANT: They have it on the screen.
21 MR. LEEN: All right.
22 A. "These people think they're being cute, but I can hunt them
23 down just as well on the geography of the English language as
24 the streets of Portland. Tally ho!"
25 Q. On the second page, the very first paragraph, could you
255
1 please read that for us?
2 A. Beginning with "a little bit of searching"?
3 Q. Yes.
4 A. "A little bit of searching in the Portland telephone
5 directory (the Feds say I can't use computer-based directories,
6 but they obviously either forgot about paper-based directories
7 or they couldn't imagine finding a judge old and dumb enough to
8 approve the latter restriction) shows that this business is
9 listed in the Portland alphabetical Yellow pages index, but
10 wasn't listed under the most obvious 'marina'-type listings."
11 Q. Please turn to Exhibit 125.
12 Do you recognize that document?
13 A. Yes, I do.
14 Q. Did you personally find and seize that document at the
15 residence?
16 A. Yes, I did.
17 Q. What does that appear to be?
18 A. This appears to be a real property inquiry looking for
19 information on a person named Jeffrey and Carolyn Gordon. Or
20 persons named Jeffrey and Carolyn Gordon.
21 Q. It appears to be the words C.A.T.S., or "C. A. T. S. -
22 ASSESSOR" is at the top. Do you know what that is? What does
23 "C.A.T.S." stand for, if you know?
24 A. I'm really not sure.
25 Q. Does this appear to be a property assessor's record?
256
1 A. Yes, it does.
2 MR. LONDON: We offer 125.
3 MR. LEEN: No objection.
4 THE COURT: 125 is admitted.
5 (Exhibit No. 125 was admitted.)
6 Q. (By Mr. London) Please turn to 126. Same question.
7 A. Yes, I did find it. It appears to be the same type of
8 document, this one looking for a Jeffrey and Lisa Gordon.
9 Q. With a different address of the previous one, Jeffrey and
10 Carolyn Gordon?
11 A. Yes, uh-huh.
12 Q. Also a property assessor's database search?
13 A. Yes.
14 Q. Result.
15 MR. LONDON: We offer 126.
16 MR. LEEN: No objection.
17 THE COURT: 126 is admitted.
18 (Exhibit No. 126 was admitted.)
19 MR. LONDON: To aid the jury, I actually offer a
20 transcript of the letter that was 60 that's been admitted. That
21 would be Exhibit 61.
22 THE COURT: 61?
23 MR. LONDON: Yes. I neglected to offer that when the
24 witness was --
25 THE COURT: What's the clerk's record show?
257
1 THE CLERK: It's not in.
2 THE COURT: 61 is now in.
3 (Exhibit No. 61 was admitted.)
4 Q. (By Mr. London) Would you please turn to --
5 MR. LEEN: Your Honor, may I ask, if there's a
6 discrepancy between the two, that the handwritten note controls,
7 just like a tape and transcript?
8 THE COURT: Do you an Exhibit 61.
9 MR. LEEN: Yes, I do.
10 THE COURT: Do you have Exhibit 26?
11 MR. LEEN: Yes, I do.
12 THE COURT: Do you have any objection to either one of
13 them?
14 MR. LEEN: Well, I have an objection to both of them
15 being admitted other than as aids to the jury -- well, a
16 different objection to -- yes. 26 because the tape is in
17 evidence. The transcript was just an aid. It was not admitted
18 as an exhibit.
19 Number 61, as I understand it, is a typing -- typed letter
20 which is supposed to recreate the handwritten letter. But the
21 typed letter was done by the government. The handwritten
22 letter, as I understand it, was done by Jim Bell. If there's a
23 discrepancy between the handwritten letter and the typed letter
24 by the government --
25 THE COURT: Are you saying there is?
258
1 MR. LEEN: I don't know if there is, Your Honor. But
2 I'm saying, if there is, then I think that the jury should --
3 THE COURT: They will both be admitted.
4 MR. LEEN: Yes, sir.
5 Q. (By Mr. London) Please turn to Exhibit 207.
6 Do you recognize 207?
7 A. Yes, I do.
8 Q. What is it?
9 A. To me it appears to be a DMV search printout looking for
10 anybody that appears to be with the name of Jeffrey Gordon.
11 Q. And are there a number of different Jeffrey Gordons who
12 appear on that exhibit?
13 A. Yes, there are.
14 Q. Including one at 8300 Southwest Chelan.
15 I direct your attention to the third one down.
16 A. Yes.
17 Q. All right. And did you personally seize this document from
18 the residence?
19 A. Yes, I did.
20 MR. LONDON: I offer 207.
21 MR. LEEN: No objection.
22 THE COURT: 207 is admitted.
23 (Exhibit No. 207 was admitted.)
24 Q. (By Mr. London) Please do the same for 208.
25 A. It appears to be the same type of a search. Again, looking
259
1 for Jeff or Jeffrey Gordon.
2 Q. Running different Gordons through the system?
3 A. Yes.
4 MR. LONDON: We offer 208.
5 MR. LEEN: No objection.
6 THE COURT: It's admitted.
7 (Exhibit No. 208 was admitted.)
8 Q. (By Mr. London) Please turn to 211. What is that?
9 A. That appears to be another search. This time it looks --
10 appears to be based on a street.
11 Q. What street is that?
12 A. Dione.
13 MR. LONDON: We offer 211.
14 THE COURT: 211 is admitted.
15 (Exhibit No. 211 was admitted.)
16 Q. (By Mr. London) 212.
17 A. This again appears to be a search looking for a specific
18 person.
19 Q. Who?
20 A. It looks like -- well, it looks like -- written down here,
21 for Ashe. Oh, there's Anne Ash and a Deforest Mueller. Excuse
22 me, there's two people.
23 MR. LONDON: We offer 212.
24 MR. LEEN: No objection.
25 THE COURT: 212 is admitted.
260
1 (Exhibit No. 212 was admitted.)
2 Q. (By Mr. London) Please look at Exhibit 2. Exhibit 2 has
3 been admitted. It's a diskette called ATF-Thug Hunt. Was that
4 given to you as part of the chain of custody in this case?
5 A. Yes, it was.
6 Q. And did you, in your capacity as a computer forensic person,
7 look at that diskette to see what was on it?
8 A. Yes, I did.
9 Q. Okay. Could you please turn to Exhibit 3, please.
10 A. Yes.
11 Q. What is Exhibit 3?
12 A. Okay. Exhibit 3 was taken from that floppy disk. I believe
13 the file was named "readme."
14 Q. And how did you -- would you describe for the jury, please,
15 what procedure you used to create or print that file from the
16 floppy disk?
17 A. Okay. What we do in the capacity of evidence recovery is we
18 make images of any disks or drives that we get so that we never
19 work with the original media. So basically we're working on an
20 exact duplicate of this. I then brought it up with software
21 that I use and I printed it out.
22 Q. Exhibit 3 contains a reference to ATF-Thug Hunt, is that
23 correct?
24 A. That's correct.
25 MR. LONDON: All right. We offer Exhibit 3.
261
1 MR. LEEN: No objection.
2 THE COURT: It's admitted.
3 (Exhibit No. 3 was admitted.)
4 MR. LONDON: I ask that Exhibit 3 be published to the
5 jury.
6 Q. (By Mr. London) As it is, to Mr. Rabatin, I would like you
7 to read, in particularly, for the juries' emphasis, the third
8 paragraph.
9 A. "I would like to be able to find the correct names and
10 addresses of any and all of the ATF (or other government agency)
11 agents who participated in the original Waco raid, and in
12 addition the subsequent standoff and fire, etc. (And possibly
13 the Randy Weaver incident, also, as well as other abuses by the
14 Federal government.) Ultimately, and as soon as possible, these
15 names and addresses should be widely publicized on the various
16 computer nets.")
17 Q. Please turn to Exhibit 5. What is 5?
18 A. 5 is another file that I recovered from that floppy disk,
19 ATF-Thug Hunt. This one was named ATF0801.
20 Q. Okay. And does Exhibit 5 contain the title the Great
21 ATF-Thug Hunt?
22 A. Yes, it does.
23 Q. All right. And is there information in that one that
24 pertains to the searches or the use of Oregon DMV information to
25 search the personal address information?
262
1 Specifically, turn your attention to the fourth -- fifth
2 paragraph, the second page.
3 A. Yes.
4 MR. LONDON: I offer Exhibit 5.
5 MR. LEEN: No objection.
6 THE COURT: 5 is admitted.
7 (Exhibit No. 5 was admitted.)
8 Q. (By Mr. London) I ask you to read the paragraph on that
9 second page beginning, "I should point out that I have a copy of
10 a CDROM."
11 Do you -- okay.
12 A. Okay, I found it. If you --
13 Q. All right. In the future, since we're going to go through a
14 few of these, if it's easier for you to look at it on the
15 screen, we're putting it up there.
16 A. Okay.
17 Q. So.
18 A. Okay. "I should point out that I have a copy of a CDROM
19 that a private individual (Mike Beketic, Portland Oregon)
20 produced which contains all the Oregon DMV information for
21 license plates and driver's licenses. According to Mike, this
22 is the first CDROM of this kind in the country. (He purchased
23 the database from Oregon DMV on 9-track magtape, and had it
24 converted...) You can well imagine how useful such a database
25 would be for searching out Fed thugs, right? Well, people in
263
1 different parts of the country should get off their collective
2 asses and do the same thing for your state's DMV records:
3 Remember that once word of this coup hits government officials,
4 they will probably want to restrict access to this
5 information."
6 Q. Please look at the picture that's down on the floor, Exhibit
7 300, which should be a picture of the computer.
8 MR. LEEN: What number?
9 MR. LONDON: 300. There are three computers on the
10 trolley there. I will ask you to just step down and look at the
11 one that is labeled 300. Can you tell us if you recognize it?
12 A. Yes, I do.
13 Q. All right. What is that?
14 A. That's a computer that was located upstairs. It was on --
15 near the counter in between the kitchen -- there was a counter
16 and sort of like a family, family room. That was hooked up to a
17 modem.
18 Q. It was hooked up to a modem?
19 A. Yes, it was.
20 Q. All right. And please do the same for the other two
21 computers, which is 301 and 302. I believe that they were
22 labeled by you as K-1 and K-2.
23 A. Yes. Those were located in the basement.
24 Q. All right. Now, did you -- did you do a forensic sort of
25 download from these computers to find stored email or documents
264
1 or other things on there that might be of relevance?
2 A. Yes, I did.
3 Q. All right. Please describe the procedure that you used to
4 guarantee the integrity of the information on the computer to
5 make sure that it is not in any way altered in the process of
6 downloading it and then printing it out so that we could have
7 the exhibit here in court today.
8 A. Okay. Basically the process that I follow is once I get the
9 computer, and in this case in a laboratory setting, in order to
10 avoid any problems that may exist with bobby traps, passwords,
11 these types of things, I remove the hard drive, put in a
12 forensic computer. That computer is initiated or started using
13 floppy disk, which allows no writes to the drive without a use
14 forensic software to create an exact image of all the
15 information that's on the hard drive. I then take the
16 computers, lock them up, and then do all the rest of my
17 investigation using various -- various forensic software and
18 techniques on the image.
19 Q. All right. Now, please turn to Exhibit 7. You can also
20 look at it on your screen.
21 A. Okay.
22 Q. Is Exhibit 7 something that you downloaded from the upstairs
23 computer that is Exhibit 300?
24 A. Yes, it is.
25 Q. And what is Exhibit 7?
265
1 A. Exhibit 7 is basically an article named "Assassination
2 Politics" by Jim Bell.
3 Q. All right. Is that broken down into parts? Does it
4 indicate that it's only part of Assassination Politics?
5 A. I believe -- I believe it was -- there were parts. The
6 particular part itself was A16dvp.
7 MR. LONDON: Okay. I offer Exhibit 7.
8 THE COURT: Exhibit 7 is admitted.
9 (Exhibit No. 7 was admitted.)
10 Q. (By Mr. London) Please look at Exhibit 8.
11 A. Yes.
12 Q. What is that?
13 A. That's Assassination Politics that begins with part 7. That
14 was under file A710, and this is the rest of the Assassination
15 Politics that I had downloaded from computer D.
16 Q. Please turn to Exhibit 101.
17 While you're looking at that, I will offer Exhibit 8.
18 THE COURT: 8?
19 MR. LONDON: 8. That's the second --
20 THE COURT: Is there any objection to 8?
21 MR. LONDON: -- part of Assassination Politics.
22 MR. LEEN: No, Your Honor.
23 THE COURT: 8 is admitted.
24 (Exhibit No. 8 was admitted.)
25 Q. (By Mr. London) We will turn to Exhibit 1 in a moment, but
266
1 I'm going to ask you a question. I'm going to take you through
2 all of the exhibits that you took off of these computers, and
3 for the sake of time, I want to ask you if you had a chance to
4 look at all of these exhibits before hand and verify that these
5 were things that in fact you downloaded off of these computers?
6 A. Yes, they are, and one of the reasons that I can say that,
7 when I review them on the back of all of the exhibits I took off
8 the computer, I have my initials, the date that I actually took
9 it down, and the path of where I found it.
10 Q. Is that your practice, to record your initials and the path
11 and the date, and so forth, as you make a download, or complete
12 a download and printout?
13 A. Yes, it is.
14 Q. All right. So with respect to Exhibit 101, now, if you can
15 turn to that one.
16 A. Uh-huh.
17 Q. And tell us what that is.
18 A. That's an email that I downloaded. It came from the sent
19 box.
20 Q. That email is sent to whom by whom?
21 A. Okay. It's sent, it says, from Lou Bell to
22 bootleg@pacifier.com.
23 Q. Okay. Do you know who Lou Bell is?
24 A. I believe Lou Bell is Jim Bell's mother.
25 Q. And have you had a chance to look at the text sent by the
267
1 person who authored this message?
2 A. Briefly.
3 Q. And who does it appear -- who appears to be the author?
4 A. Jim Bell.
5 Q. All right. Can you please refer to the section of that
6 email -- do you see where it says, "Check out an issue of US
7 News and World Report"?
8 A. I can't see on the monitor here too well.
9 101?
10 Q. Are you in 101? Did I say 103 by accident? I'm sorry.
11 A. No, this is 101.
12 Q. Good. Please look at 101.
13 A. Okay.
14 Q. On the second page of that email, the first paragraph,
15 "Well, I certainly now qualify as a celebrity, of sorts." Can
16 you please read that?
17 A. "Well, I" now -- "Well, I certainly now qualify as a
18 celebrity" --
19 MR. LEEN: Objection, Your Honor. Has this been
20 introduced, 101?
21 MR. LONDON: I offer it now.
22 MR. LEEN: We object, Your Honor. 403.
23 THE COURT: 101 is admitted.
24 (Exhibit No. 101 was admitted.)
25 Q. (By Mr. London) Please continue.
268
1 A. "Well, I certainly now qualify as a celebrity, of sorts.
2 I'm not quite as well known as Kevin Mitnick, but I've had my
3 share of publicity. Check out an issue of US News and World
4 Report for approximately October 1, 1997, where I'm written up
5 to look like a terrorist."
6 Q. Please turn to Exhibit 102.
7 What is 102? It's up on your screen.
8 A. Okay. This appears to be an email from Lou Bell to
9 carolmiller@alt.net.
10 Q. It's from Lou Bell's account at "lbell@pacifier.com" --
11 A. Dot com, correct.
12 Q. At the bottom does it indicate authorship by Jim Bell?
13 A. Yes, it does.
14 Q. What does its say in that regard?
15 A. It says, "Jim Bell, temporarily using lbell@pacifier.com."
16 Q. Okay. And does this email concern the accumulation of voter
17 registration records?
18 A. Yes.
19 MR. LONDON: We offer 102.
20 MR. LEEN: No objection.
21 THE COURT: 102 is admitted.
22 (Exhibit No. 102 was admitted.)
23 Q. (By Mr. London) Please turn to 103. What's 103?
24 A. 103 is a printout of a file called GORDON.DOC, which I found
25 on the same computer. It appears to be a DMV search for a
269
1 person named Jeffrey Gordon.
2 Q. So when the doc- -- is it correct that in the document
3 directory on that computer you found reference to a GORDON.DOC,
4 and then you printed that out and this is what came out?
5 A. That's correct.
6 Q. All right. And what does this document appear to be?
7 A. This appears to be a DMV search.
8 Q. For a Jeffrey Gordon?
9 A. Yes.
10 MR. LONDON: We offer 103.
11 MR. LEEN: No objection.
12 THE COURT: 103 is admitted.
13 (Exhibit No. 103 was admitted.)
14 Q. (By Mr. London) Please turn to 104.
15 Actually, skip 104 and just go to 105, please.
16 What's 105?
17 A. Okay. 105 appears to be, again, a DMV check for a person
18 named Jeff or Jeffrey Gordon.
19 Q. Did you -- did you download this one from the file?
20 A. Yes, I did.
21 Q. And --
22 A. And the file was named Gordon96.
23 Q. Can you please read the address information for the Gordon,
24 Jeffrey Phillip, that's the second to the bottom.
25 A. 24289 Southeast Filbert Road, Eagle Creek, Oregon.
270
1 MR. LONDON: Okay. We offer 106 -- I mean -- yes, 105,
2 rather.
3 MR. LEEN: I'm sorry, and the date that this was -- may
4 I ask a question, Your Honor?
5 THE COURT: Yes.
6 MR. LEEN: The date that this file is dated, or wasn't
7 it?
8 THE WITNESS: I have the date that it was last written
9 to was May 17th, 2000. Last access, July 15th, 2000.
10 MR. LEEN: Okay. I have no objection.
11 Q. (Mr. London) I want to ask you about that a little bit --
12 THE COURT: 105 is admitted.
13 (Exhibit No. 105 was admitted.)
14 MR. LONDON: All right. Thank you.
15 Q. (By Mr. London) Do you have a way when you exam a computer
16 of determining when a user of the computer accessed that
17 document, went into it and back into it at different times?
18 A. There's possibilities of the way files are set up on a
19 computer. They have little things that are called files or --
20 which attributes it. You have on a -- what they consider an
21 archive file. So it would be like, if you had a folder and you
22 had a document and you pulled it up and you wanted to make sure
23 that it was up to date or, if anything, you would have the date
24 that you created it, but anytime anybody else came in, there's
25 another date, and then if anybody wrote anything to it, there
271
1 would be another date. On specific software that I use, and
2 there's other commercially available software, these dates are
3 available. And they usually follow these types of files.
4 Q. Please return to 104. What does that appear to be?
5 A. That is an email that I took from that computer. It's from
6 Lou Bell at -- lbell@pacifier.com to John Painter, Jr.
7 Q. Do you know who John Painter, Jr., is?
8 A. Personally, no.
9 Q. Does this email contain references to doing research and
10 data checking on computer?
11 Looking at the first paragraph.
12 A. Yes.
13 MR. LONDON: I offer 104.
14 MR. LEEN: No objection.
15 THE COURT: 104 is admitted.
16 (Exhibit No. 104 was admitted.)
17 Q. (By Mr. London) Okay. Could you please just read the first
18 paragraph?
19 A. "Sorry I didn't get back to you in time. I've been doing a
20 lot of research and data-checking, both on the computer and on
21 the road. The person I wanted (and still want) you to meet has
22 moved but I know the new address. But even that's only a tiny
23 fraction of the whole story."
24 MR. LEEN: Your Honor, under the rule of completeness,
25 I'd ask that the last two paragraphs -- actually, the next three
272
1 paragraphs be read also.
2 MR. LONDON: Well, I'm happy to publish it to the jury
3 to look at it directly. If we could do it that way, otherwise I
4 have no objection.
5 MR. LEEN: That would be fine.
6 Q. (Mr. London) Mr. Rabatin, if you'll look at the second
7 page, there's -- halfway down there's indication of
8 correspondence to John Painter, Jr., of the Oregonian, is that
9 connect?
10 A. That's correct.
11 Q. All right. So does this appear to you to be email exchange,
12 then, the second portion of the document, between Mr. Bell and
13 John Painter of the Oregonian newspaper?
14 A. Yes, it does.
15 Q. Will you please turn to 106.
16 A. Okay.
17 Q. What is that?
18 A. Yes. It appears to be another license search. It's titled
19 "Gordon99," and this also I took from the same computer.
20 Q. With searches -- search results from Jeffrey Gordon?
21 A. Gordon.
22 Q. With different middle names?
23 A. That's correct.
24 MR. LONDON: We offer 106.
25 MR. LEEN: No objection.
273
1 THE COURT: 106 is in.
2 (Exhibit No. 106 was admitted.)
3 Q. (By Mr. London) 107, please.
4 A. Yes. That appears to be an email from Lou Bell,
5 lbell@pacifier.com, to Jean-Francois Avon at, it appears to be,
6 jf_avon@CITENET.NET.
7 Q. And what is the date of that email?
8 A. May 24th, 2000.
9 Q. Subject line is?
10 A. "RE: Bell is back!"
11 Q. Okay. Is there a reference in there to Mr. Bell being the
12 subject of a scary article about him in the October '97 issue of
13 US News and World Report?
14 A. Yes, there is.
15 MR. LONDON: I offer 107.
16 MR. LEEN: Objection, Your Honor. This is repetitious
17 to an email that's already introduced and referenced.
18 THE COURT: 107 will be admitted.
19 (Exhibit No. 107 was admitted.)
20 Q. (By Mr. London) Please turn to 108.
21 A. Yes. This appears to be an email from Lou Bell at
22 lbell@pacifier.com to mkepp, mkepp@hevanet.com.
23 Q. All right. Is there reference in there to the feds?
24 A. Yes.
25 Q. To intimidation of agents at the IRS?
274
1 A. Yes.
2 Q. All right.
3 MR. LONDON: I offer 108.
4 THE COURT: 108 is admitted.
5 MR. LEEN: Your Honor, may I make my objection?
6 THE COURT: Go ahead.
7 MR. LEEN: There is information that -- the information
8 the prosecutor is referring to, I believe, as we were told about
9 the carets, was not written by Mr. Bell or Lou Bell. It was
10 written by someone else.
11 Q. (By Mr. London) All right, let me ask you this before.
12 If -- is it your understanding that if there's not a caret
13 next to text in an email, that that is -- that signifies
14 authorship by the person from whose computer you are
15 downloading?
16 A. That's correct.
17 Q. All right. Could you please read the sentence that says,
18 "I guess I'm intimidating"?
19 A. "I guess I'm 'intimidating' all their agents! Have you read
20 my essay yet?"
21 Q. All right.
22 MR. LONDON: So once again we offer 108.
23 THE COURT: 108 is admitted.
24 (Exhibit No. 108 was admitted.)
25 Q. (By Mr. London) Turn to 110.
275
1 A. Yes. This appears to be an email from Jim Bell,
2 jimbell@home.com, to Loey Glover, publisher/Terry Mitchell,
3 executive editor, panthers@eos.net.
4 Q. All right. Is there reference in there to pursuing feds who
5 were engaged in politically-motivated infiltration of a local
6 Multnomah County, Portland, Oregon, common law court?
7 A. That's correct.
8 Q. What is the date of this email?
9 A. July 23rd, 2000.
10 Q. And is there any information that the author of this
11 response, this email response, is Jim Bell?
12 A. Yes.
13 MR. LONDON: Okay. I offer 110.
14 MR. LEEN: No objection.
15 THE COURT: 110 is admitted.
16 (Exhibit No. 110 was admitted.)
17 Q. (Mr. London) Could you please read the paragraph, "If I'm
18 correct."
19 A. If I'm correct (and I'm still very actively pursuing the
20 issue) the Feds were engaging in some (politically-motivated)
21 infiltration of a local (Multnomah County; Portland, Oregon)
22 Common Law Court that I occasionally attended. As well, I
23 believe, as spying on me for a few years using non-government
24 assets. (next door snitch, quite possibly, as well as possibly
25 some illegal bugging.) Feds made the stupid mistake of sending
276
1 their 'plant' (a guy named 'Steve Wilson', currently in
2 California but I don't know where) directly to me after their
3 raid April 1, 1997. Feds made an even more stupid mistake by
4 having a fellow inmate named Ryan Thomas Lund assault me on
5 November 25, 1997, for purposes of getting me to agree to their
6 plea bargain. They've been trying to keep a lid on" these
7 "things ever since. It's like a soap opera. I'm looking up
8 names, address, etc."
9 Q. On the next page of the email, do you see the text that
10 begins with, "Hell yes!"?
11 MR. LEEN: Same exhibit?
12 A. Yes.
13 MR. LONDON: Same exhibit.
14 A. Yes, I did.
15 Q. (Mr. London) All right. Can you please read that line.
16 A. "Hell yes! I am going to destroy these suckers. Read my
17 essay again. Five years ago, I knew that I had already won the
18 war. I'm even more convinced of that now."
19 Q. Do you know what war is being referred to in the text?
20 MR. LEEN: Objection, Your Honor. It calls for
21 conclusion of the witness.
22 MR. LONDON: I'm just asking if he knew.
23 THE COURT: Of his own independent knowledge?
24 MR. LEEN: I'm sorry, I don't know how --
25 MR. LONDON: I withdraw the question.
277
1 THE COURT: All right.
2 Q. (By Mr. London) Can you turn to 115, please.
3 A. It appears to be email from Jim Bell, jimbell@home.com, from
4 D. Lawrence Olstad, larryo@teleport.com.
5 Q. What's the date that this email was offered?
6 A. July 29th, 2000.
7 Q. Is there a reference on the third page of this specifically
8 to Jeff Gordon? And it would be the fifth paragraph down.
9 A. Yes, there is.
10 Q. Okay. Can you --
11 MR. LONDON: I offer 115.
12 MR. LEEN: No objection.
13 THE COURT: 115's admitted.
14 (Exhibit No. 115 was admitted.)
15 Q. (By Mr. London) Can you please read the sentence beginning,
16 "Please formulate a series of demands."
17 A. Which page is that on?
18 Q. This is on the third page, fifth paragraph down.
19 A. Okay. Just the sentence?
20 Q. Yes.
21 A. "Please formulate a series of demands consistent with my
22 letter, then contact 'Jeff Gordon'" area code "(503)-326-2787)
23 and ask (actually, demand) him to completely inventory all items
24 he proposes returning to me, correlating that list with the list
25 of" items -- "a list of taken items apparently presented after
278
1 the April 1, 1997 search."
2 Q. Mr. Rabatin, do you know Agent Gordon's work telephone
3 number?
4 A. Yes, I do.
5 Q. And is that in fact his work telephone number?
6 A. Yes, it is.
7 Q. Thank you.
8 Would you please turn to -- excuse me.
9 MR. LONDON: Is 115 admitted?
10 MR. LEEN: It was admitted, Your Honor.
11 MR. LONDON: Thank you.
12 Q. (By Mr. London) Can you please turn to 117.
13 A. It appears to be an email from Jim Bell. Jimbell@home.com
14 to cypherpunks@cyberpass.net.
15 Q. Okay. Dated?
16 A. September 15th, 2000.
17 Q. All right. Now, I direct your attention to the fourth
18 paragraph here at the bottom. Do you see a reference there to
19 Portland BATF agent Mike McNall?
20 A. Yes, I do.
21 MR. LONDON: I offer 117.
22 MR. LEEN: No objection.
23 THE COURT: 117 is admitted.
24 (Exhibit No. 117 was admitted.)
25 Q. (By Mr. London) Okay. Can you read the first paragraph,
279
1 please, for the jury?
2 A. "I've been doing a lot of local research at the Clark County
3 (Washington) courthouse, and by telephone to the Multnomah
4 County (Oregon) and Clackamas County (Oregon), and I've
5 discovered how the government thugs originally paid off Ryan
6 Thomas Lund. They did it in two separate ways."
7 Q. Please turn to Exhibit 118.
8 A. It's an email from Jim Bell, jimbell@home.com, to
9 newsgroups, talk.politics.libertarian, dated October 9th, 2000.
10 Q. Is this about Assassination Politics?
11 A. Yes, it is.
12 MR. LONDON: I offer 118.
13 MR. LEEN: No objection.
14 THE COURT: 118 is admitted.
15 (Exhibit No. 118 was admitted.)
16 THE COURT: One more, counsel.
17 Q. (By Mr. London) Please turn to 119 -- no, excuse me, 128.
18 What's this one?
19 A. Okay. This is a file called gordons.doc, which again
20 appears to be a DMV type search. This I got from one of the
21 computers located -- computer K-1 located in the basement.
22 Q. Does this also appear to be a DMV data search for running
23 the name Jeffrey Gordon?
24 A. Yes, it does.
25 MR. LONDON: All right. We offer 128.
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1 MR. LEEN: No objection.
2 THE COURT: 128 is admitted.
3 (Exhibit No. 128 was admitted.)
4 THE COURT: I'm going to send the jury home.
5 Please do not discuss the case over the evening recess,
6 among yourselves, or with anyone else. Be in the jury room at
7 9:30 tomorrow morning. 9:30.
8 You are now excused.
9 (Jury excused at 4:30 p.m.)
10 THE COURT: Witness may step down.
11 (Witness excused from the stand.)
12 THE COURT: I want everyone to remain in the courtroom
13 until the jury is cleared, including the witness.
14 MR. LEEN: I'm sorry, Your Honor, I didn't hear you?
15 THE COURT: Everyone in the courtroom, please remain in
16 the courtroom --
17 MR. LEEN: Okay.
18 THE COURT: -- until the jury has cleared.
19 MR. LEEN: Yes, sir.
20 THE COURT: The corridor.
21 MR. LEEN: Yes, sir.
22 THE COURT: So we don't have any incidental or
23 accidental bumping into each other for any reason.
24 Anything further to take up?
25 MR. LEEN: Your Honor, the defendant has made a request
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1 that I ask that the court authorize daily copies of transcripts.
2 THE COURT: What rule provides for that?
3 MR. LEEN: That can be ordered at the court's
4 discretion, Your Honor.
5 THE COURT: I will decline.
6 MR. LONDON: Your Honor, I have -- well, I haven't
7 filed it, but I have given the clerk of the court during the
8 last break a motion by the government to file under seal any
9 exhibits that are being admitted into evidence in this case that
10 contain personal identifying information of people for privacy
11 reasons. There are individuals who have been accessing the
12 court computer database and transferring court documents from
13 our computers in the court system onto the Internet, and I'm
14 concerned that as exhibits become part of the court file and are
15 filed here in the courthouse, that those are automatically going
16 to be transferred by these individuals and publicized on the
17 Internet.
18 It's just, in my view, a multiplication of the problem that
19 has already been caused in this case, and I would ask that
20 exhibits which we have specifically delineated in the proposed
21 order containing any personal address information for people who
22 really have nothing to do with this case, and those who are
23 victims in this case, frankly, not be splashed all over the
24 Internet for everyone to see.
25 MR. LEEN: Your Honor, I haven't seen the proposed
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1 order, which I would like to see, but I believe that there's a
2 greater concern here than just the defendant, and that is the
3 First Amendment right, and also the Sixth Amendment right to a
4 public trial. I believe that this is a very complicated issue.
5 I would like to be able to at least think about it overnight and
6 respond in the morning.
7 THE COURT: In the meantime, any and all documents
8 filed in this case with the clerk of this court will remain in
9 this courtroom, period, until the end of this case.
10 MR. LEEN: I understand, but before the court issues
11 any sealing orders, I would like to be able to be heard on the
12 issue.
13 THE COURT: I didn't think I had mentioned sealing.
14 MR. LEEN: All right.
15 THE COURT: All I'm saying is, anything that's filed in
16 the clerk's office will come one place, and that's to this
17 courtroom.
18 MR. LEEN: Yes, sir.
19 THE COURT: Period. Until the end of this case.
20 MR. LEEN: Yes, Your Honor. Well -- well, yes. I
21 understand.
22 THE COURT: Anything further on that?
23 MR. LONDON: No, Your Honor.
24 THE COURT: Okay. Court's in recess.
25 (Recessed at 4:35.)
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3 C E R T I F I C A T E
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5 I certify that the foregoing is a correct transcript from
6 the record of proceedings in the above-entitled matter.
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10 ________________________________ October 19, 2001
JULAINE V. RYEN Date
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