24 November 2001
Source: Digital files from Court Reporter Julaine V. Ryen, Western District
of Washington, Tacoma, WA. Telephone: (253) 593-6591
This is Day 3 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
284
1 UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
2 AT TACOMA
3
4 UNITED STATES OF AMERICA, ) Docket No. CR00-5731JET
) Court of Appeals No. 01-30303-00
5 Plaintiff, )
)
6 v. )
) Tacoma, Washington
7 JAMES DALTON BELL, ) April 5, 2001
) 9:35 a.m.
8 Defendant. )
)
9
10 VOLUME 3
TRANSCRIPT OF TRIAL
11 BEFORE THE HONORABLE JACK E. TANNER
SENIOR UNITED STATES DISTRICT JUDGE, and a Jury
12
13 APPEARANCES:
14 For the Plaintiff: ROBB LONDON
Assistant United States Attorney
15 601 Union Street, Suite 5100
Seattle, Washington 98101
16
For the Defendant: ROBERT M. LEEN
17 Attorney At Law
Two Union Square
18 601 Union Street, Suite 4610
Seattle, Washington 98101-3903
19
20
21 Court Reporter: Julaine V. Ryen
Post Office Box 885
22 Tacoma, Washington 98401-0885
(253) 593-6591
23
24
Proceedings recorded by mechanical stenography, transcript
25 produced by Reporter on computer.
285
1 I N D E X
2 Page
3 VOLUME 3 284 - 470
4
MOTIONS:
5
Plaintiff's Motion In Limine ................... 345
6
7 WITNESSES ON BEHALF OF PLAINTIFF:
8 JOHN RABATIN
Direct ....................... 288
9 Cross ........................ 312
Redirect ..................... 316
10
BARBARA J. GORDON
11 Direct ....................... 317
Cross ........................ 327
12
ROBERT DUTRA
13 Direct ....................... 329
14 SUSAN C. WHITE
Direct ....................... 331
15
KRISTIE HANLEY
16 Direct ....................... 347
17 BRIAN D. MEYER
Direct ....................... 354
18 Cross ........................ 376
Redirect ..................... 378
19 Recross ...................... 379
20 KEVIN LAYNG
Direct ....................... 381
21 Cross ........................ 389
22 RANDY R. OXFORD
Direct ....................... 390
23 Voir Dire .................... 396
Direct (Continuing) ........... 397
24
25
286
1 I N D E X
2 WITNESSES ON BEHALF OF PLAINTIFF:
3 JOHN BRANTON
Direct ....................... 398
4 Cross ........................ 402
Redirect ..................... 405
5 Recross ...................... 405
Redirect ..................... 408
6
MICHAEL MCNALL
7 Direct ....................... 413
Cross ........................ 429
8 Redirect ..................... 434
9 JEFFREY GORDON
Direct ....................... 435
10
11 EXHIBITS Admitted
12 116 419
129 289
13 131 291
133 292
14 137A 337
141 293
15 142 294
143 296
16 152 298
153 298
17 154 299
156 300
18 158 301
161 303
19 163 303
172 350
20 173 351
174 351
21 175 351
176 353
22 177 353
178 353
23 179 352
181 308
24 182 309
185 310
25 215 369
287
1 I N D E X
2 EXHIBITS Admitted
3 216 369
220 387
4 221 388
222 395
5 223 395
224 395
6 225 397
226 394
7 226A 394
227 394
8 227A 394
240 331
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
288
1 (Defendant present.)
2 MORNING SESSION
3 THE COURT: Anything to take up?
4 MR. LEEN: No, sir.
5 MR. LONDON: No, Your Honor.
6 THE COURT: Bring the jury.
7 (Jury present; 9:37 a.m.)
8 THE COURT: Good morning.
9 (Jury responds good morning.)
10 THE COURT: Let the record reflect all members of the
11 jury are present. The witness is on the stand, still under
12 oath, still on direct examination.
13 Counsel.
14 DIRECT EXAMINATION (Continuing)
15 BY MR. LONDON:
16 Q. Mr. Rabatin, good morning.
17 A. Good morning.
18 Q. You will recall that yesterday I was taking you through a
19 number of exhibits that were downloaded by you from the
20 defendant's computers to -- the defendant's computers found
21 during the search, a warrant -- execution of the search warrant
22 that you in fact were present at last fall.
23 THE CLERK: Mr. London, do you want to move the
24 microphone over.
25 Thank you.
289
1 Q. (By Mr. London) And I want to resume that. I've got about
2 19 more of these to take you through, so we won't take too long
3 doing it.
4 Turn your attention, please, to Exhibit 129. And as we were
5 doing yesterday, if you will just look at the exhibit as I make
6 reference to it and tell the jury if you recognize it and why
7 and then tell us what it is.
8 A. Yes. Exhibit 129, this is a file that I recovered from the
9 computer that was in the basement. It's a document entitled,
10 "McNalls.doc." It appears to be, again, a DMV search.
11 Q. For Michael McNall?
12 A. That's correct.
13 MR. LONDON: I offer 129.
14 MR. LEEN: May I voir dire, Your Honor, just for one
15 point?
16 THE COURT: Are you through questioning him?
17 MR. LONDON: I am on that exhibit.
18 THE COURT: Go ahead.
19 MR. LEEN: On the top it says "McNalls.doc." Do you
20 know whose handwriting that is?
21 THE WITNESS: That's mine.
22 THE COURT: It's admitted. 129.
23 (Exhibit No. 129 was admitted.)
24 Q. (By Mr. London) When you write "McNalls.doc," what was the
25 reason for doing that?
290
1 A. That's for identification.
2 Q. Does that explain the name of the file that you downloaded?
3 A. Yes, it does.
4 Q. Please turn to Exhibit 131?
5 MR. LEEN: What number?
6 MR. LONDON: 131.
7 A. This is an email that I recovered from the computer that
8 was upstairs. It was from Jim Bell, jimbell@home.com to
9 anonymous@openpgp.net. Multiple recipients of list
10 <cypherpunks@openpgp.net>. It was dated October 19th, 2000.
11 Q. What is the subject line?
12 MR. LEEN: Objection, Your Honor. 403, and there's no
13 indication that Mr. Bell is responsible for the subject line.
14 It has the carets indicating that someone else wrote the
15 original message. It would be hearsay.
16 THE COURT: Was it in the exhibit?
17 MR. LONDON: It is, yes. It's part of the exhibit.
18 THE COURT: It will be admitted.
19 (Exhibit No. 131 was admitted.)
20 Q. (By Mr. London) Would you tell us what the subject line is,
21 please.
22 A. Re: judges needing killing.
23 Q. And the date of the email?
24 A. It was October 19, 2000.
25 Q. Okay. Now, does this appear to be something that was on the
291
1 Internet?
2 A. Yes, it does.
3 Q. All right. And does it involve the use of chemicals known
4 as PCBs?
5 A. Yes, it does.
6 MR. LONDON: I'd offer 131.
7 MR. LEEN: I would make the same objection as I just
8 raised, Your Honor.
9 THE COURT: 131 is admit.
10 (Exhibit No. 131 was admitted.)
11 Q. (By Mr. London) Would you please read the paragraph
12 beginning "Naturally"?
13 A. "Naturally, a chemical solution (pun not directly
14 intended... but I'll take it anyway) becomes apparent. If the
15 ultimate motivation of the car seizures is to sell them and
16 keep the money, what would happen if somebody acquired a few
17 ounces or gallons of PCB's (poly-chlorinated biphenyls; common
18 in 20+year-old (non-electrolytic) capacitors), and sprayed them
19 (only a very tiny amount per car should be necessary, maybe one
20 milliliter or so?) into those seized cars through a broken
21 window (or injected through door seals). Naturally, it would be
22 important to anonymously call the local newspaper or TV stations
23 and report on what had occurred, possibly the EPA as well. That
24 car would suddenly change from a $10,000 asset into possibly a
25 $100,000 liability for the agency which seized them."
292
1 Q. All right. And it is signed by who?
2 A. Jim Bell.
3 Q. And the phrase under it, the name, what is that?
4 A. Better Living Through Chemistry.
5 Q. Turn to Exhibit 133, please.
6 A. This appears to be an email which I took from the same
7 computer. It's from Jim Bell, jimbell@home.com, to Ray
8 Dillinger, bear@sonic.net. The date was October 19, 2000.
9 Subject, judges needed killing -- needing killing.
10 Q. And is there a reference in that one also to PCBs?
11 A. Yes.
12 MR. LONDON: I offer 133.
13 MR. LEEN: Your Honor, this is just a repetition of
14 the prior exhibit.
15 THE COURT: 133 is admitted.
16 MR. LEEN: May I make the same objections as I did
17 to the prior exhibit?
18 THE COURT: It's admitted.
19 MR. LEEN: Okay.
20 (Exhibit No. 133 was admitted.)
21 Q. (By Mr. London) Please turn to Exhibit 141.
22 A. This is also an email which I obtained from the same
23 computer. It's from Jim Bell, jimbell@home.com, to
24 cypherpunks@cyberpass.net. The date was October 24th, 2000.
25 Subject line is, "Say Goodnight to Joshua, Mr. Anonymous."
293
1 MR. LONDON: I offer 141.
2 THE COURT: 141 is admitted.
3 (Exhibit No. 141 was admitted.)
4 MR. LONDON: I ask that 141 be published to the jury
5 as well.
6 THE COURT: Go ahead.
7 THE COURT: Just a moment. Counsel, when you say
8 published, can any member -- if you cannot read it or see it,
9 raise your hand.
10 (Most jurors raise their hand.)
11 THE COURT: There's your problem.
12 MR. LONDON: Thank you, Your Honor.
13 Q. (By Mr. London) Mr. Rabatin, I would like you to read the
14 text of this exhibit.
15 A. "Sorry, but I didn't particularly appreciate the musical
16 telephone call. An overenthusiastic colleague, perhaps? Before
17 I was satisfied to look into people who had, unfortunately,
18 allowed their property to be used against me. I found out most
19 of what I needed to know about them, months ago, and they will
20 be dragged through the (legal) dirt as soon as that's needed to
21 get the rest of the information. (Have you told them, yet? I
22 think a few of them caught on already; they're not very good
23 actors.)
24 "So I decided to respond by doing a couple of hours of
25 research, and combine that with a few house of field-trip. Yes,
294
1 that one. Just a 'show the flag' circuit. Intended to be
2 seen. Mapmaking for a process server? Just a reminder.
3 "So say good night to Joshua, Mr. Anonymous. Tell him it's
4 not his fault that his father is a thug.
5 "Jim Bell."
6 Q. Please turn to Exhibit 142.
7 A. This is also an email which I took from the same computer.
8 It's from Jim Bell, jimbell@home.com, to Robert East,
9 viking@pacifier.com. Date was October 24th, 2000. Subject is,
10 "Re: Here's a list from the white pages."
11 Q. Are there references in this to a Jeffie, and address is
12 Eagle Creek?
13 A. Yes.
14 Q. And to Mike McNall?
15 A. Yes.
16 Q. And his address?
17 A. Yes.
18 MR. LONDON: I ask that 142 be admitted.
19 MR. LEEN: No objection.
20 THE COURT: 142 is admitted.
21 (Exhibit No. 142 was admitted.)
22 MR. LONDON: And published as well.
23 Q. (By Mr. London) And, Mr. Rabatin, I ask that you read from
24 "You may recall."
25 THE COURT: Go ahead.
295
1 A. "You may recall that I've mentioned that of all the
2 road-trip research that I've done in the last few months, it
3 seems like nearly all of it has been in the Clackamas County
4 (Gladstone, Oregon City, etc., etc., and now Eagle Creek.
5 Interesting.
6 "However, as I expected the Eagle Creek address is simply an
7 old one for Jeffie. I visited it simply to check out the lay of
8 the land, write down license plates of the new owners (who might
9 be 'related', by employer, to the previous owner.)
10 "While in that area I visited the old address of 'Mike
11 McNall', BATF agent, to talk to him about Ryan Lund. Rented
12 house, new renter. But the new renter behaved as if he knew who
13 McNall was, and is. He might be a Fed, as well.
14 "I sent the following item to Cypherpunks List for the
15 benefit of those listening.
16 "Quote."
17 Q. I don't need you to -- you can stop there, but do you
18 recognize the following item that was sent to the Cypherpunks
19 List, essentially the "Say Goodnight to Joshua" email?
20 A. Yes.
21 Q. All right. What is the date of this?
22 A. October 24th, 2000.
23 Q. What time was it posed to the Cypherpunks list?
24 A. 2:30 p.m.
25 Q. Please turn to Exhibit 143.
296
1 A. This is also an email which I obtained from the same
2 computer. It's from Jim Bell, jimbell@home.com, to John
3 Branton, John.Branton@Columbian.com. The date is October 25th,
4 2000. The subject is "Re: Fw: Harry Browne in Portland
5 11/1/00."
6 Q. Does this also contain references to Jeff Gordon of the
7 Treasury and Mike McNall of the BATF?
8 A. Yes, it does.
9 MR. LONDON: I offer 143.
10 MR. LEEN: No objection.
11 THE COURT: 143 is admitted.
12 (Exhibit No. 143 was admitted.)
13 MR. LONDON: I publish it.
14 Q. (By Mr. London) And I'd just ask you to read the first
15 paragraph.
16 A. "Sure. I did a road trip a couple of days ago which
17 probably worries the Feds. Talk to Jeff Gordon of the Treasury
18 Department and Mike McNall of the BATF (Portland Office.) Just
19 wanted to ask McNall about Ryan Thomas Lund. (BTW, I found that
20 he got about ten years off of his sentence, because of his
21 assistance in assaulting me. Care to see the evidence (Fed
22 paperwork, sentencing documents, etc.)?
23 "Jim Bell."
24 Q. Go to 152, please.
25 A. This is also an email which I retrieved from the same
297
1 computer from Jim Bell. Jimbell@home.com. Sent to John Young,
2 jya@pipeline.com. Also cypherpunks@cyberpass.net. It's dated
3 October 25th, 2000. Subject: Re: CIA in Oregon, Intelink.
4 Q. And are there references in this document to a Scott
5 Deforest Mueller?
6 A. That's correct.
7 MR. LONDON: Okay. I offer 152.
8 MR. LEEN: Your Honor, this is a copy of a prior
9 exhibit. There's nothing new in this exhibit. It's cumulative.
10 THE COURT: It's repetitious to another exhibit, and
11 which one is it?
12 MR. LEEN: I don't know the number, Your Honor, but the
13 body of it has been introduced in actually two emails already.
14 The one from John Young to the Cypherpunks list.
15 MR. LONDON: It's being offered here for the
16 significance of the fact that it's found as an outgoing email on
17 the defendant's computer.
18 THE COURT: He's saying it's repetitious.
19 MR. LEEN: Yes, sir. This same email has been
20 introduced several times.
21 MR. LONDON: Well, the fact that a version --
22 THE COURT: Why do you need it again then?
23 MR. LONDON: Well, it's significant to show that it's
24 sent as an outgoing email from the defendant's own computer.
25 The other versions were taken off the Internet in the form that
298
1 it was seen.
2 THE COURT: Well, it's not the same exhibit then.
3 MR. LONDON: It's not the same exhibit.
4 THE COURT: Then, 152.
5 MR. LONDON: Much of the text is the same, but it's
6 actually a different exhibit. It's 152.
7 THE COURT: It will be admitted.
8 (Exhibit No. 152 was admitted.)
9 Q. (By Mr. London) Mr. Rabatin, does this appear to include
10 database search material for a Scott Mueller in Bend, Oregon?
11 A. That's correct.
12 Q. Please turn to 153.
13 A. This is also an email that I retrieved from the same
14 computer. It's from Jim Bell, jimbell@home.com to Bob Johnson,
15 taallltom@yahoo.com. October 26th, 2000. Subject: Re: Harry
16 Brown coming to PDX November 1.
17 Q. In this email, does Mr. Bell also appear to discuss doing
18 some DMV database work?
19 Last paragraph.
20 A. Yes, that's correct.
21 MR. LONDON: I offer 153.
22 MR. LEEN: No objection.
23 THE COURT: 153 is admitted.
24 (Exhibit No. 153 was admitted.)
25 Q. (By Mr. London) Please turn to 154.
299
1 A. This is also an email which I retrieved from the same
2 computer. It's from Jim Bell, jimbell@home.com to Bob Johnson,
3 tallltom@yahoo.com. Date is October 27, 2000. Subject is Re:
4 Harry Brown coming to PDX November 1.
5 Q. And the reference is there to outing feds.
6 A. That's correct.
7 MR. LONDON: Okay. I offer 154.
8 MR. LEEN: No objection.
9 THE COURT: 154 is admitted.
10 (Exhibit No. 154 was admitted.)
11 Q. (By Mr. London) Please turn to 156.
12 A. This is also a email I retrieved from the same computer.
13 It's from Jim Bell, jimbell@home.com, to
14 cypherpunks@cyberpass.net. Also with cc to John Young,
15 jya@pipeline.com. Dated October 27, 2000. Subject is Fw: CIA
16 in Oregon, Intelink.
17 Q. Does this appear to be data base search material for a Scott
18 Mueller?
19 A. That's correct.
20 MR. LONDON: I'd offer 156.
21 MR. LEEN: I object, Your Honor. It's the same
22 database search as Scott Mueller that we just had introduced
23 about three exhibits ago.
24 THE COURT: Is it repetitious?
25 MR. LEEN: Yes.
300
1 MR. LONDON: It's not, Your Honor, because here its
2 significance is this is the outgoing version of that email from
3 the defendant's own computer.
4 MR. LEEN: The prior one was, too, Your Honor.
5 The prior one was 152. It was outgoing, also.
6 MR. LONDON: Your Honor, it adds additional material
7 that is not in 152. The date of birth information for Mr.
8 Mueller's wife, for example.
9 THE COURT: 156 is admitted.
10 (Exhibit No. 156 was admitted.)
11 MR. LEEN: May we move then to strike 152?
12 THE COURT: 152 will remain and 156 is admitted.
13 Q. (By Mr. London) Please turn to 158.
14 A. This is an email which I retrieved from the same computer.
15 It's from Jim Bell, jimbell@home.com, to Cypherpunks at
16 cypherpunks@cyberpass.net. Cc to John Young, jya@pipeline.com.
17 Dated October 27, 2000. Subject: Re: CIA in Oregon, Intelink.
18 Q. All right. And is this also -- does this also contain
19 database search information for Scott Mueller and Kim Mueller?
20 A. That's correct.
21 Q. Does it contain any additional information that was not in
22 156?
23 A. That's correct.
24 Q. Can you read the last paragraph, please?
25 MR. LONDON: Actually, I will offer -- excuse me. I
301
1 will offer 158.
2 MR. LEEN: Same objection.
3 THE COURT: 158 is admitted.
4 (Exhibit No. 158 was admitted.)
5 Q. (By Mr. London) Can you read the last paragraph, please?
6 A. "Turns out that there is no 'John Ashe' nor 'Anna Ashe' in
7 either the year 2000 nor year 1996 Oregon DMV databases. They
8 are probably just aliases for the Muellers."
9 Q. What was the date that this was sent to John Young and to
10 the Cypherpunks?
11 A. October 27, 2000.
12 Q. Turn to page 160.
13 A. This also is an email that I retrieved from the same
14 computer. It's from Jim Bell, jimbell@home.com, to John
15 Branton, John.Branton@Columbian.com, with cc to John Painter,
16 Jr., johnpainter@news.oregonian.com, dated October 28th, 2000.
17 Subject: Out and about.
18 Q. All right. What time was this email sent to John Branton at
19 the Columbian?
20 A. 1:27 a.m.
21 Q. And does this discuss outing a CIA employee who lives in
22 Bend?
23 A. That's correct.
24 Q. Does it mention Steve Deforest Mueller specifically?
25 A. That's correct.
302
1 MR. LONDON: I'd offer 160.
2 MR. LEEN: No objection.
3 THE COURT: 160 is admitted.
4 MR. LONDON: I'd ask that be published.
5 Q. (By Mr. London) Mr. Branton, while that's being published
6 on the screen -- excuse me, Mr. Rabatin -- will you please read
7 the two paragraphs beginning "BTW"?
8 A. "BTW, in the last two days I have helped to 'out' a CIA
9 employee who lives in Bend, Oregon. One of his aliases is
10 Deforest X. Mueller, but in the Oregon DMV database he is 'Steve
11 Deforest Mueller' of Bend, Oregon. He may also have used the
12 alias 'John R. Ashe.' See the material below for details.
13 "Given the fact that the Columbian was happy to write all
14 sorts of articles about me when the government was making its
15 foolish accusations, it is obvious that my persona and
16 activities have easily reached the level of 'newsworthy', per
17 se. Well, now I am acting again. And I'm keeping records.
18 What I'm wondering is how newsworthy my activities will have to
19 become before you fear ignoring me more than you fear covering
20 me."
21 Q. Please turn to Exhibit 161.
22 A. It's also an email that I retrieved from the same computer.
23 It's from Jim Bell, jimbell@home.com, to John Young,
24 jya@pipeline.com. It was dated October 28th, 2000. Subject:
25 Re: CIA in Oregon, Intelink.
303
1 Q. Does this contain more information about Mr. Mueller?
2 A. That's correct.
3 Q. Okay.
4 MR. LONDON: I'd offer 161.
5 MR. LEEN: No objection.
6 THE COURT: 161 is admitted.
7 (Exhibit No. 161 was admitted.)
8 Q. (By Mr. London) Can you read the single line, "Ooops!"
9 A. "Ooops! Dumb screwup. Mueller's DOB is 7/10/50, not 1959."
10 Q. Please turn to 163.
11 A. It's also an e-mail I retrieved from the same computer.
12 It's from Jim Bell, jimbell@home.com, to A. Melon,
13 juicy@melontraffickers.com, and also cypherpunks@cyberpass.net,
14 dated October 30th, 2000. Subject: Re: Parties.
15 Q. Does this contain -- turn your attention to the last couple
16 of paragraphs. Does this contain any material about database
17 collection?
18 A. That's correct.
19 MR. LONDON: I offer 163.
20 MR. LEEN: No objection.
21 THE COURT: 163 is admitted.
22 (Exhibit No. 163 was admitted.)
23 Q. (By Mr. London) Could you please read the last paragraph,
24 "Now would be an excellent time"?
25 A. "Now would be an excellent time for anyone to go to their
304
1 county voter's registration office, and order a copy of the
2 voter's registration database for current and future use."
3 Q. Please turn to 164.
4 A. It's also an email which I retrieved from the same
5 computer. It's from Jim Bell, jimbell@home.com. It's to
6 jessicas@alum.mit.edu, and also darcy.bender@miis.edu. There's
7 a number of carbon copies. Do you want me to read those also?
8 Q. Who is cc'd on this email?
9 A. Cc, there's Declan McCullagh, declan@wired.com; John
10 Branton, John.Branton@Columbian.com; John Painter, Jr.,
11 johnpainter@news.oregonian.com. It was dated October 30, 2000.
12 The subject is: Still interested in uncovering the truth,
13 Jessica and Darcy?
14 Q. All right. And does this reference Mike McNall, the ATF
15 agent?
16 A. Yes, it does.
17 MR. LONDON: I'd offer 164.
18 MR. LEEN: No objection.
19 THE COURT: 164 is admitted.
20 Q. (By Mr. London) Could you simply read the first paragraph?
21 A. "There is something I'd like you to do for me. I would like
22 you to call the Portland, Oregon BATF office (503-326-5115:
23 That's the number for 'firearms enforcements' which may be the
24 proper number for this case.) and talk to 'Mike McNall.'"
25 MR. LEEN: Your Honor, I would ask under the rule of
305
1 completeness that the rest of the email be read because it
2 should be read contemporaneously with the first paragraph.
3 MR. LONDON: Why don't we publish it.
4 Q. (By Mr. London) I presume that there's difficulty reading
5 this, so I'm going to ask you to read the exhibit, if you will.
6 A. Continuing on: "Mr. McNall is the investigator who worked
7 with local (Clark County, Washington) authorities in
8 investigating Ryan Thomas Lund, whose house was searched early
9 July 1997, and who was arrested and subsequently pled guilty to
10 illegal possession of a gun. (As a felon, Lund was not allowed
11 to possess guns.) Lund was also in the operation of selling
12 drugs (specifically, methamphetamine).
13 "Lund was, at the time, a four-time felon, twice for
14 controlled-substances (drugs) violations. This is significant,
15 because as my prior emails to you should have made clear,
16 authorities took perhaps ten years off of Lund's proper sentence
17 because of two subterfuges. First (minor) they appeared to not
18 have included a substantial fraction of his criminal history in
19 the 'Criminal History Category' and thus put him on 'Column 5'
20 not 'Column 6' as he deserved. (This would be much clearer if
21 you had a copy of the 'Federal sentencing matrix' chart).
22 "Second (major!) they sentenced him as though neither of his
23 two drug felony convictions had existed. The specific
24 sentencing guideline involved, which as I recall was 2K2.1, said
25 that illegal possession of a gun (i.e. by a felon) is a
306
1 14-point-level offense, but should be treated as a 20 point
2 level if the criminal has a single prior drug felony conviction,
3 and 24 points if he has been convicted of two such felonies.
4 "Furthermore, despite the fact that Lund was clearly engaged
5 in a crime (illegal drug sales) associated with his possession
6 of a gun, the prosecution 'stipulated' that this was not the
7 case. Had they properly recognized Lund's crime this would have
8 added an extra four-points, for a total of 28, minus the usual
9 two points for 'acceptance of responsibility.' Total,
10 therefore, of 26 points.
11 "As I recall, this would have resulted in a proper
12 sentencing range of 120-150 months, or 10-12.5 years. What Lund
13 actually got was 27 months, of which he did perhaps 24 months or
14 so. I believe he got such a cushy deal because he did what the
15 investigators asked him to do: He was instructed to assault me,
16 which he did on November 25th, 1997, for the purpose of forcing
17 me to accept a crooked and phony plea agreement that the
18 government had no intention of honoring.
19 "When you contact Mr. McNall, I want you to identify
20 yourself as who you are, an academic researcher, and your
21 interest in Ryan Lund's case, but don't necessarily bring up
22 your association with me unless he first raises the issue. I
23 think it's highly likely that Mr. McNall will already know of my
24 interest in this case at the time you call him, and I think
25 he'll understand the connection with me even if you don't
307
1 mention it, but he might figure it's better to keep quiet about
2 this and see what happens.
3 "Please ask McNall about Ryan Lund: Why he began
4 investigating him, his criminal record (any drug felonies?), his
5 sentence, ('Why so low?'). Ask him why Lund wasn't immediately
6 arrested at the time of the search, since he was already clearly
7 in violation of drug laws and gun laws. (Lund was only arrested
8 on about October 27, 1997; arrest warrant issued October 23,
9 1997). Ask him, also, under what circumstances he or his
10 colleagues talked to Lund subsequent to that search.
11 "I think this should be done soonest, and this conversation
12 should be recorded if that is possible for you. And I'd like
13 one of you to confirm your intentions to me within a day after
14 this email is sent.
15 "Jim Bell.
16 "Please check the following site for the legality of tape
17 recording telephone and non-telephone communications.
18 Apparently it is legal to do so in both Oregon and DC if only
19 one party to the conversation is aware. OTOH, in Washington
20 state and Massachusetts, all-party consent is required."
21 And the site is http://www.rcfp.org/taping/.
22 Q. Please turn to Exhibit 181.
23 A. It's an email which I retrieved from the same computer.
24 It's from Jim Bell, jimbell@home.com, to John Young,
25 jya@pipeline.com. It's dated November the 2nd, 2000. The
308
1 subject is photography.
2 Q. Is it --
3 MR. LEEN: Number?
4 MR. LONDON: It's 181.
5 Q. (By Mr. London) Does it discuss an upcoming trip to Bend,
6 Oregon, for photography?
7 A. That's correct.
8 MR. LONDON: All right, I'd offer 181.
9 MR. LEEN: No objection.
10 THE COURT: 181 is admitted.
11 (Exhibit No. 181 was admitted.)
12 MR. LONDON: It can be published.
13 Q. (By Mr. London) Mr. Rabatin, if you would just read that
14 email, please.
15 A. "Within the next week or two, I will probably be visiting
16 Bend, Oregon, for photography of various locations, some
17 addresses having appeared recently on CP. I would welcome
18 suggestions from anyone about where and what to photograph. I
19 would be happy to receive those suggestions by anonymous
20 remailer, or anywhere else for that matter.
21 "Jim Bell."
22 Q. Please turn to 182.
23 MR. LEEN: I'm sorry, counsel, number?
24 MR. LONDON: 182.
25 A. It's also an email which I retrieved from the same
309
1 computer. It's email from Jim Bell, jimbell@home.com, to Blanc
2 Weber, blanccw -- blancw@cnw.com, dated November 3rd, 2000.
3 Subject: Re: What your mail looks like.
4 Q. (By Mr. London) Does this also discuss an upcoming
5 photographic trip to Bend, Oregon?
6 A. That's correct.
7 Q. All right.
8 MR. LONDON: I'd offer 182.
9 MR. LEEN: No objection.
10 THE COURT: 182 is admitted.
11 (Exhibit No. 182 was admitted.)
12 Q. (By Mr. London) Okay. Just read the line, "In an hour or
13 so."
14 A. "In an hour or so, I'm going to Bend, Oregon, for a
15 photographic mission. (see some of my recent posts on CP with
16 John Young.)"
17 Q. Do you know what CP is a reference to?
18 A. Cypherpunks.
19 Q. Please turn to 185.
20 A. This also is an email which I retrieved from the same
21 computer. It's from Jim Bell, jimbell@home.com, to
22 cypherpunks@cyberpass.net. It's dated November the 4th, 2000.
23 Subject: CIA in Oregon, Intelink.
24 Q. And does this discuss the Mueller home in Bend, Oregon?
25 A. That's correct.
310
1 MR. LONDON: All right. I offer 185.
2 MR. LEEN: No objection.
3 THE COURT: 185 is admitted.
4 (Exhibit No. 185 was admitted.)
5 Q. (By Mr. London) All right. What is the date of this email?
6 A. November 4th, 2000.
7 Q. All right. And so is that one day after the email that was
8 182, to Blanc Weber, "In an hour or so, I'm going to Bend"?
9 A. That's correct.
10 Q. Can you please read for the jury the paragraph beginning,
11 "This address is a house"?
12 A. "This address is a house in a rather new subdivision in the
13 northern portion of Bend, Oregon. Mapquest actually cannot find
14 this address, and when I look at the actual location (Found with
15 a Pittmon map) the road in question is not even shown yet.
16 Below is a URL which can be fed into Mapquest to retrieve the
17 appropriate (although, admittedly, incomplete) map, pointing to
18 the approximate, correct address of the house."
19 Q. All right. Below down further, "Two vehicles," would you
20 please read that?
21 A. "Two vehicles, Oregon Plates VCV976 and 902ALL are in the
22 driveway."
23 Q. All right. That's it for the exhibits, Mr. Rabatin.
24 I just want to ask you if you can just tell us a little bit,
25 please, about the pathways or the ways that you have of knowing
311
1 who has authored an email apart from any acknowledgment of
2 authorship that maybe in the text of the email itself on a
3 computer that may be more than one person listed on the account,
4 the Internet account --
5 A. Okay.
6 Q. -- has access to.
7 A. Okay. On a lot of the email programs you can set them up to
8 have different personality, what they call personalities.
9 Depending which program you are using, they have different words
10 for it, but you can have it set up for multiple users. And what
11 I did in this case is, when I was looking for a specific email,
12 the path which I have written on the back of each one of the
13 emails basically shows -- it follows a little road map through
14 the computer down to where the email program stores the
15 information.
16 In this instance, there were a number of people -- well,
17 there were -- let me back up.
18 There were a number of profiles, what we call profiles, down
19 there for different users. All of the emails that are retrieved
20 here came from one that was Jim Bell. So normally what would
21 happen is that under each one of these there would be a separate
22 in box, an out box, a sent box, whatever. So usually the person
23 that uses that specific sign-in or personality, that would save
24 all of their emails, would have all the emails that they send
25 out, it would all be there so you could retrieve it in one
312
1 place.
2 It would be the equivalent of you have an email account at
3 home and if you have children or spouse or something and you
4 want to keep your email separate, that's basically what this
5 is. So you have one place for yours and they have another place
6 for theirs.
7 Q. So there were other users in the house who were listed on
8 the account?
9 A. That's correct.
10 Q. And did any of them show up as the points of origin for any
11 of the emails that you discussed here today?
12 A. No. I did a -- excuse me -- a very cursory review of the
13 other mailboxes because I had been informed by the case agent
14 that there's possibility that a different -- you know, that Mr.
15 Bell had used his mother's account. But when I did a cursory
16 review of the other accounts, either they were empty or they
17 could be attributed to email sent by either Mr. Bell's mother or
18 his father.
19 THE COURT: Are you through with direct?
20 MR. LONDON: I am through with direct.
21 THE COURT: Cross-examination.
22 MR. LEEN: Thank you, Your Honor.
23 CROSS-EXAMINATION
24 BY MR. LEEN:
25 Q. Good morning, Mr. Rabatin.
313
1 A. Good morning.
2 Q. The emails that you have gone through this morning and
3 yesterday afternoon, were they taken off one or the three
4 computers?
5 A. The emails were taken off of the one computer that was
6 upstairs and was connected to the Internet.
7 Q. And how did that computer access to Internet?
8 A. Through a modem.
9 Q. Was it -- and that modem was connected to cable or telephone
10 line?
11 A. It appeared -- it appeared to be a cable modem.
12 Q. Do you know, or -- you're the expert, tell us.
13 A. This is a while back. I didn't recall that I took the
14 modem. I believe it was a cable modem.
15 Q. All right. And what about the other computers in the house,
16 were they directed to a cable or to a telephone line?
17 A. All the ones, when I looked at both of them at the time,
18 they weren't connected to anything. It appeared that one --
19 there appeared to be -- appeared to be some sort of a network
20 connection, but they weren't complete, and there was nothing, at
21 the time that I looked, that was connected anywhere.
22 Q. There are different types of modems, aren't there?
23 A. That's correct.
24 Q. Telephone modem is different, distinctly different from a
25 cable modem?
314
1 A. That's correct.
2 Q. Can you tell me the specifications of the computer that you
3 were examining?
4 A. I don't have that with me currently.
5 Q. Now, all of the emails that you have gone through have a
6 date and a time that they were sent.
7 A. That's correct.
8 Q. How is -- how does that date and time get put on the email?
9 Is there something in the computer itself that does that?
10 A. No. That's -- most of that is -- could you please rephrase
11 your --
12 Q. I'm saying, like, for example, one of the emails -- let's --
13 let me just look at an exhibit. 185; just turn to 185.
14 MR. LEEN: Is it possible to put 185 on the monitor?
15 Just the "sent to" portion.
16 AGENT GORDON: I'm sorry, I had trouble publishing
17 that.
18 MR. LEEN: Let me grab another one.
19 AGENT GORDON: Some are better than others.
20 MR. LEEN: Why don't we try 182. Would that be
21 better?
22 AGENT GORDON: Yes.
23 Q. (By Mr. Leen) On the line that says sent, it says, Friday,
24 November 3rd, 2000, 11:23 a.m.
25 A. Yes. Uh-huh.
315
1 Q. How does the -- how does that information get put there? Is
2 it typed in by the sender or --
3 A. No.
4 Q. -- does the computer put that on?
5 A. No. It's altering Curie by the program. And one of the
6 things that you notice here, you have a from, a to, and a send,
7 a subject line. That's basically what you see, but there's also
8 what are known as extender headers which would actually show all
9 of the different hops and skips and jumps that it takes to get
10 to whomever it's being meant to go. So normally what you would
11 -- it says on the software, only if it works on time, like if
12 you are looking here, it would work on the clock on your -- use
13 the clock on your computer.
14 Q. This may sound too simplified, but I can go to my computer
15 and click on the clock down there, the time.
16 A. That's correct.
17 Q. And then if it's a PC, at least, I don't know on an Apple,
18 and it will pop up and I can change the date and I can change
19 the time if want and close it, and then the next time I reboot
20 my computer, my computer will think it's that date I changed it
21 to and that time I changed it to.
22 A. Correct.
23 Q. Did you check the accuracy of the date and the time of the
24 computer?
25 A. Let's see. On the --
316
1 Q. Well, did you -- when you checked the computer, did you see
2 if it actually, when you booted it up -- let's say, for example,
3 if you booted it up right now, it would say April 5th, 10:21
4 a.m.
5 A. Well, possibly if the battery didn't die. The emails came
6 from the computer upstairs, and that was active at the time.
7 And at that time -- excuse me. With checking the computer
8 upstairs, it appeared that the date and time was correct.
9 Q. I'm sorry, so did you do your work on the computer while it
10 was upstairs in the house?
11 A. No, I didn't.
12 Q. So did you -- my question is, did you check at any time to
13 see if the right date and the right time were accurate within at
14 least, you know, a few seconds?
15 A. On that computer, no, I didn't.
16 Q. Okay. Thank you.
17 A. Excuse me one second.
18 MR. LEEN: No further questions.
19 MR. LONDON: Your Honor, could I ask that the witness
20 be permitted to answer the question.
21 THE COURT: Redirect.
22 REDIRECT EXAMINATION
23 BY MR. LONDON:
24 Q. Mr. Rabatin, was it your testimony that before you
25 dismantled that computer to be able to seize it and take it, the
317
1 date and time on the computer appeared to be correct?
2 A. That's correct.
3 MR. LONDON: Thank you. Nothing further.
4 THE COURT: Recross.
5 MR. LEEN: No questions.
6 THE COURT: The witness may be excused.
7 (Witness excused.)
8 THE COURT: Next witness.
9 MR. LONDON: Call Barbara Gordon.
10 BARBARA J. GORDON, PLAINTIFF'S WITNESS, SWORN
11 THE CLERK: Please state your full name and spell your
12 last name.
13 THE WITNESS: Barbara J. Gordon. G-o-r-d-o-n.
14 DIRECT EXAMINATION
15 BY MR. LONDON:
16 Q. Mrs. Gordon, good morning.
17 Could you begin, please, by telling the jury where you
18 live? You don't have to tell us your address, but just the
19 geographical area where you live.
20 A. Tualatin, Oregon.
21 Q. And did you live at 8300 Southwest Chelan in Tualatin,
22 Oregon, last October?
23 A. Yes.
24 Q. Do you have a husband named Jeffrey Gordon?
25 A. Yes, I do.
318
1 Q. Is he the same Jeffrey Gordon who is a special agent for the
2 Treasury Department?
3 A. No, he is not.
4 Q. What does your husband do?
5 A. My husband is a traffic manager for a company in Tualatin.
6 Q. Is he here in the courtroom today?
7 A. Yes.
8 Q. Can you point out your husband for the jury, please.
9 (A gentleman in the back of the courtroom raises his hand.)
10 MR. LONDON: Thank you.
11 A. That's him.
12 Q. (By Mr. London) I would like you to look at some exhibits
13 that are going to be put up on the screen in front of you. If
14 you have any problem making out anything on the screen, there
15 are hard copies of the exhibits in the notebooks to your right
16 and you can look at them there.
17 I would like you to look at Exhibit 137(a) which has three
18 pages that are noted 27, 28, and 29. And looking first at page
19 27 of 137(a), I want to ask you if you see any personal
20 information about yourself or your family that you are able to
21 recognize?
22 A. The first item here that I see is 24289 Southeast Filbert
23 Road in Eagle Creek, Oregon. That was our address about six
24 years ago.
25 Q. All right. Do you see anything else in this part of the
319
1 exhibit that you recognize?
2 Can you make out "next door"?
3 A. Oh. I'm not familiar with the name.
4 Q. Okay. All right. Can you please turn to page 28 of Exhibit
5 137.
6 MR. LONDON: All right. This has been admitted, so I'd
7 ask that this be published for the jury as well.
8 Q. (By Mr. London) Do you see any information there in these
9 handwritten entries in this notebook that you recognize?
10 A. Yeah, the whole first part. Jeff and Barbara Gordon,
11 Allstate Insurance. Our address at 8300 Southwest Chelan
12 Street.
13 Q. All right. And there's a reference there to Allstate
14 Insurance.
15 A. Uh-huh.
16 Q. What does that mean to you?
17 A. We have homeowners insurance and car insurance through
18 Allstate. The agent listed, Todd Rettman, he is our agent.
19 Q. All right. And does that look like his phone number?
20 A. Yes. Um-hmm.
21 Q. Okay. Did you ever share any of this information with James
22 Dalton Bell?
23 A. No.
24 Q. Have you shared this information with anyone other than your
25 husband or, in this case, your Allstate agent?
320
1 A. No.
2 Q. Do you see where it refers to an auto policy for a '74 GMC
3 truck?
4 A. Yes. We still own that truck.
5 Q. And a Chevy Spartan.
6 A. Sport van.
7 Q. Sport van, excuse me.
8 A. Uh-huh.
9 Q. A '97 Corolla.
10 A. Yes.
11 Q. Are those your vehicles?
12 A. All of them are, yes.
13 Q. Do you keep your vehicles parked near your property in a
14 place where they could be observable in the street?
15 A. We normally kept the Corolla and the van in the garage and
16 the truck parked next to the house behind a closed gate.
17 Q. Is the Allstate policy information here, does that
18 correspond to any of these vehicles?
19 A. Yes. That's the policy for all of those vehicles.
20 Q. All three of them?
21 A. Uh-huh.
22 Q. All right. If you look at a little bit lower down, there's
23 a reference to Blue Cross Blue Shield of Alabama. Do you
24 recognize any of that information?
25 A. Yeah. Blue Cross Blue Shield of Alabama is our health
321
1 insurance provider.
2 Q. And does that cover you?
3 A. That covers myself and my husband, Jeff, and both our
4 children.
5 Q. All right. Do you have a son named Joshua?
6 A. Yes, I do.
7 Q. And have you had to submit any Blue Cross Blue Shield claims
8 in recent months for your son Joshua?
9 A. Yeah, he's had a couple of different appointments with his
10 doctor.
11 Q. All right. Does this information appear to be accurate
12 claims information with regard to any claims that you have
13 submitted or that have been submitted on your behalf to Blue
14 Cross Blue Shield of Alabama --
15 A. A --
16 Q. -- either for any medical visits that you have made or that
17 your son Joshua has made?
18 A. The one that I'm seeing right here actually looks like my
19 husband's doctor.
20 Q. Please turn to 29.
21 Okay. Is your son Joshua J. Gordon?
22 A. Yes. And this is his -- it looks like a claims EOB
23 information explanation benefits for an appointment that he had
24 with his doctor to have a wart removed.
25 Q. Now, were you expecting to receive your claims information
322
1 in the mail in October of 2000?
2 A. We normally -- we normally always get it in the mail.
3 Sometimes it could take maybe three weeks. But, yeah, we would
4 get that.
5 Q. And did you correspond with Blue Cross Blue Shield of
6 Alabama using your 8300 Southwest Chelan address in Tualatin?
7 A. Yes.
8 Q. Where is the mail delivered at that address? Is it to a
9 mailbox?
10 A. Yeah. There's a mailbox, and just in front of the house.
11 Q. Out by the road?
12 A. Yes.
13 Q. Did you ever receive your claim in October for these visits,
14 Joshua's visit? Did you ever receive it?
15 A. No, I did not.
16 Q. But you had received, perhaps, prior claim reports from Blue
17 Cross Blue Shield of Alabama for other visits?
18 A. Yes. For Joshua and for all of us.
19 Q. Is it your practice to throw away that information in the
20 garbage that's put out on the street when you are done with it?
21 A. No. I would keep all claims information. I keep them so I
22 can cross-reference to doctor bills that come in afterwards.
23 Q. And anything you don't keep, what do you do with it?
24 A. I burn it. I burn all of our information that's left over
25 from paying bills or any other, just for safety.
323
1 Q. All right. Now, after you were notified that this
2 information had been found in a notebook taken from the
3 defendant's residence in this case, did you take any steps to
4 change your mailing address with regard to Blue Cross Blue
5 Shield of Alabama, correspondence or anything else?
6 A. I had to call Blue Cross Blue Shield and ask them to send me
7 a copy of that explanation of benefits because I hadn't gotten
8 it, and I asked them to send it to our new P.O. box address
9 which we had just gotten.
10 Q. What was that P.O. box?
11 A. P.O. Box 1209, Tualatin, Oregon 97062.
12 Q. All right. Have you ever taken any of this personal
13 information about yourself and included it in email
14 correspondence that might have traveled on the Internet?
15 A. No.
16 Q. All right. I would like to ask that you be shown Exhibit
17 105.
18 MR. LONDON: And these can be published to the jury as
19 well. Any that have been admitted can be published.
20 Q. (By Mr. London) Mrs. Gordon, can you look at Exhibit 105
21 and tell us if you recognize anything on this printout?
22 A. It looks like about the seventh person listed down, Jeffrey
23 Phillip Gordon, 24289 Southeast Filbert Road, Eagle Creek. That
24 is our old address and my husband's name.
25 Q. Let me show you Exhibit 128. Can you make out anything
324
1 there that looks familiar to you as well?
2 A. The third line listed says Jeffrey Phillip Gordon, 24289
3 Southeast Filbert Road, Eagle Creek. That's also my husband and
4 our old address. It looks like -- I'm not sure what the rest of
5 it is.
6 Q. Will you please look at Exhibit 200.
7 Can you make out anything on 200, or do you need to look at
8 the hard copy of that?
9 A. I might be able to make it out. Just a second here.
10 Q. The third reference contains a reference to Southeast
11 Filbert. Does that appear to be information about you?
12 A. Oh, yeah. I see, umm -- actually, it looks like my
13 husband's birth date is listed there and also my name, my birth
14 date, and our address in Eagle Creek.
15 Q. All right. It refers to a Barbi Gordon. Do you go by
16 Barbi?
17 A. Yes. And it's spelled like that, too.
18 MR. LONDON: Can the witness be shown 201.
19 Q. (By Mr. London) Anything on this one that you can
20 recognize?
21 A. The third entry there also says Jeffrey Phillip Gordon --
22 that's my husband -- and our address in Eagle Creek.
23 MR. LONDON: 203, please.
24 Q. (By Mr. London) Do you see anything on 203 on this computer
25 printout that looks familiar to you?
325
1 A. I can't read what's right up on the top. I don't know if
2 you can bring that down a little bit.
3 I see it says 8300 Southwest Chelan is where Jeff and Barbi
4 Gordons' vehicle -- and it was our old vehicle at the time --
5 the license plate number, and it says, "becomes registered in
6 1997."
7 And then below that where it says Abram Tabakov, those are
8 the people who lived in our house before we did on 8300
9 Southwest Chelan Street.
10 Q. SAV794, was that your license plate tab?
11 A. Yeah. Yes.
12 Q. Let's look at 204, please. Is that you?
13 A. Yes, that's my name. That's our license number. It looks
14 like even maybe the vin number for our Toyota and Jeffrey's name
15 and our -- it says "New address for SAV794 car." And it's our
16 address on 8300 Southwest Chelan Street.
17 Q. All right. So in 1997, did you change your address from
18 Eagle Creek to Tualatin?
19 A. I'm trying to think when we moved. Yeah. It was actually,
20 we had moved already, but we were probably late on changing the
21 DMV records. But, yes. We did change it.
22 Q. All right. Other than yourself, do you see any reference in
23 this printout to any other Gordons or anybody else there?
24 A. Well, it shows Jeffrey P. Gordon. That's my husband.
25 Q. Other than you and your husband.
326
1 A. No.
2 Q. Okay. Please go to 205.
3 On this one, with the handwritten header "Year 1994
4 Vehicle," do you see anything about yourself or your husband or
5 any of your cars?
6 A. Yeah. There's an entry down towards the bottom. It says
7 SAV794 Toyota, and that's the identification number for the
8 Toyota. And Jeffrey Gordon and Barbara Gordon and our Eagle
9 Creek address.
10 Q. Please look at 207.
11 Anything there in 207 about you or your husband?
12 A. The third line down. Jeffrey Phillip Gordon, 8300 Southwest
13 Chelan Street in Tualatin, that's ours. That was our old
14 address.
15 Q. 208.
16 A. It looks like the seventh line down, Jeffrey Phillip Gordon,
17 24289 Southeast Filbert Road, Eagle Creek. That was our old
18 address.
19 Q. 209, finally, please.
20 A. It looks like the fourth line down shows SAV794 -- that's
21 our Toyota's license plate number -- and it says Jeffrey
22 Gordon.
23 Q. Are you employed?
24 A. Yes.
25 Q. Is your husband employed?
327
1 A. Yes.
2 Q. What time do you get home typically at the end of the day?
3 A. His schedule and my schedule vary quite a bit. At the time
4 I was working, going into work at about 2:00 in the morning, and
5 I would get off by 2:30 or so in the afternoon to pick up the
6 kids. He would typically not get home until maybe 5:00 or
7 sometimes even 6:00. It just depended on the workload and the
8 day.
9 Q. So is there a typical time when mail is delivered to your
10 house?
11 A. I'm thinking it was around noon or so, or 1:00 in the
12 afternoon.
13 Q. So is there a window of opportunity between the time when
14 you -- when the mail is delivered and the time when the first
15 adult comes home where the mail is left out in the box?
16 A. Yeah. We were also frequently guilty of leaving it in there
17 overnight or for a couple of days just because our schedules are
18 so busy.
19 MR. LONDON: Nothing further of this witness, Your
20 Honor.
21 THE COURT: Cross-examination.
22 CROSS-EXAMINATION
23 BY MR. LEEN:
24 Q. Good morning, Ms. Gordon.
25 A. Hi.
328
1 Q. Ms. Gordon, do you know this individual seated over here in
2 the blue shirt?
3 A. Only by a picture.
4 Q. And how do you know -- who showed you the picture?
5 A. Jeff Gordon, the agent.
6 Q. Not your husband Jeff Gordon, but this Jeff Gordon over
7 here?
8 A. Yes.
9 Q. And when did he show it to you?
10 A. I don't know the date, but it was sometime after we were
11 notified that someone had information on us.
12 Q. And do you recall approximately what time you were --
13 approximately what month of what year you were notified?
14 A. I'm guessing it was the beginning of November sometime.
15 Q. Were you -- to your knowledge, was there -- prior to you
16 being advised that someone had information about you and your
17 husband and at least one of your children, and were you aware
18 that anyone had -- did you think anyone had stolen anything from
19 your property or had trespassed on your property?
20 A. No. I wasn't aware of anything.
21 Q. And you burn your mail when you are done with it?
22 A. We have a wood stove, and so that was my practice, to burn
23 -- even after I paid the bills, I normally burn the leftover
24 statements and whatever.
25 Q. For privacy purposes?
329
1 A. Yes.
2 MR. LEEN: No further questions.
3 THE COURT: Redirect.
4 MR. LONDON: No, Your Honor.
5 THE COURT: The witness is excused.
6 (Witness excused.)
7 THE COURT: Next.
8 ROBERT DUTRA, PLAINTIFF'S WITNESS, SWORN
9 THE CLERK: Please be seated.
10 Please state your full name and spell your last name.
11 THE WITNESS: Robert Dutra. D-u-t-r-a.
12 DIRECT EXAMINATION
13 BY MR. LONDON:
14 Q. Sir, good morning. Could you please tell us how you are
15 employed?
16 A. With the United States Marshals Service.
17 Q. Are you a Deputy United States Marshal?
18 A. I'm a detention enforcement officer.
19 Q. In that capacity, are you involved in the booking process or
20 taking fingerprints from people who have been charged and are
21 now in the criminal justice system federally?
22 A. Yes, I am.
23 Q. Have you brought with you today the original Exhibit 240, a
24 ten-print card that would have been rolled fingerprints taken by
25 you of defendant?
330
1 A. Yes, I have.
2 Q. All right. When did you take these fingerprints from the
3 defendant?
4 A. These fingerprints were taken on the 20th of November, year
5 2000. It would have been the day that the defendant was brought
6 before us to be processed.
7 Q. Do you remember specifically taking these fingerprints?
8 A. Yes, I do.
9 Q. Can you identify the person that you took the fingerprints
10 from?
11 A. It was taken of Mr. Bell, the individual seated over at the
12 far left-hand corner table, light blue shirt, dark blue pants.
13 Q. And what procedure did you use for rolling these prints?
14 A. I used the standard FBI fingerprint card, placed it within a
15 holder, had the defendant before me using black ink, rolling
16 them individually across through each of the sections. Mr. Bell
17 was also directed to sign the fingerprint card on the front and
18 then on the rear. On the backside, I signed it with the date.
19 Q. All right. And does a deputy number or anything for you
20 also appear on that?
21 A. On this one here is simply my, my signature, and the date of
22 bir- -- and the date it was taken.
23 Q. Okay. So you did this the old fashion way, you actually
24 rolled the fingerprints?
25 A. Correct.
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1 Q. You didn't use the live scan computer --
2 A. No, I did not.
3 MR. LONDON: All right. I offer 240.
4 MR. LEEN: No objection.
5 THE COURT: 240 is admitted.
6 (Exhibit No. 240 was admitted.)
7 MR. LONDON: All right.
8 MR. LEEN: No questions.
9 THE COURT: The witness may be excused.
10 (Witness excused.)
11 THE COURT: Next witness, please.
12 MR. LONDON: Call Susan White.
13 SUSAN C. WHITE, PLAINTIFF'S WITNESS, SWORN
14 THE CLERK: Please be seated.
15 Please state your full name and spell your last name.
16 THE WITNESS: Susan C. White. W-h-i-t-e.
17 DIRECT EXAMINATION
18 BY MR. LONDON:
19 Q. Ms. White, good morning. Can you begin, please, by telling
20 the jury how you are employed?
21 A. I'm a senior fingerprint specialist for the Treasury
22 Inspection General, Tax Administration, Forensic Laboratory.
23 Q. Can you briefly describe the nature of your work?
24 A. I receive cases and I process evidence to identify latent
25 prints and suspect's prints in order to compare and report as to
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1 my findings.
2 Q. All right. And how much of your duty time is devoted to
3 that kind of work?
4 A. Ninety percent of my duty time is devoted to latent
5 development and comparison, and about ten percent is research.
6 Q. How long have you been doing this work?
7 A. Twenty-one years.
8 Q. What study and preparation have you undergone for this work?
9 A. I received my initial training in the science of
10 fingerprints through the Federal Bureau of Investigation where I
11 was employed for eight years, and since working for the Federal
12 Bureau of Investigation I have worked for two other local
13 agencies, as well as back to federal government.
14 Q. And have you made continuous study to keep up with any new
15 techniques in the field?
16 A. Yes, I have. I belong to three forensic groups, and I'm a
17 certified latent print examiner through the International
18 Association for Identification.
19 Q. What kind of technical equipment is available to you in your
20 work as a fingerprint examiner?
21 A. We have state-of-the-art equipment. Although our forensic
22 capabilities are first class, we have the digital imagery setup
23 that can't be -- there's no comparison in this country.
24 Q. All right. And have you actually had occasion to identify
25 people by comparing what we call latent fingerprints or
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1 palmprints with their known or recorded fingerprints or
2 palmprints?
3 A. Yes, I have.
4 Q. Can you approximate how many times you have had to do that?
5 A. Hundreds of thousands of times.
6 Q. Have you had occasion to qualify as an expert witness in
7 federal courts as a fingerprint examiner?
8 A. Yes, I have.
9 Q. How many times?
10 A. In excess of five times in federal court, and in excess of
11 forty times in local and state courts.
12 Q. All right.
13 MR. LONDON: Your Honor, I do ask at this time that the
14 witness be qualified as an expert under Rule 72.
15 THE COURT: Any voir dire of the witness?
16 MR. LEEN: No, Your Honor. We will stipulate --
17 THE COURT: The witness may testify as an expert.
18 Q. (By Mr. London) Will you tell the jury a little bit,
19 please, what an inked or known print is?
20 A. An inked or known print is the intentional recorded
21 fingerprint, finger or the underside of the palm, the raised
22 ridges on the underside of the fingers and the palms. This is
23 usually done by applying a thin film of ink and transferring it
24 on to a contrasting surface. This can also be done
25 electronically by scanning the ridge detail on the underside of
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1 the fingers or the palms.
2 Q. What is a latent print?
3 A. A latent print is the unintentional leaving behind of a
4 fingerprint. And this is done by the residue that's on the
5 ridges, the surface of the fingers, and the palmprint. When you
6 touch a surface you leave behind that residue, or there's
7 sometimes residue on the surface and you can leave the
8 impression of the ridge detail behind on the surface.
9 Q. Are there different distinguishing characteristics of
10 fingerprints or palmprints?
11 A. There are four basic characteristics that are used for
12 comparison as far as latent prints, and that would be a ridge
13 that comes up and ends, a ridge that divides into two or more
14 ridges, something that appears as a dot or an island or an
15 enclosure.
16 Q. And using these characteristics as a guide, how do you
17 actually compare latent fingerprints to known prints?
18 A. You actually take the individual characteristics, which
19 would be the four basics, and there's variations of those four
20 basic characteristics, and you add one onto the other until you
21 have determined that they were left by one and the same
22 individual, the fingerprint. If you were to find an ending
23 ridge and count, say, two ridges, find another ending ridge,
24 count down three ridges, find an island or enclosure, and so on
25 and so on, until you determine that they were made by one and
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1 the same fingerprint.
2 Q. All right. And as you start to match up points of
3 comparison, at what point or after how many points of comparison
4 do you safely feel that you have a match?
5 A. There's no set number and there's no set number used in this
6 country. The smallest number of fingerprints I have --
7 characteristics I have ever used to effect an identification is
8 seven points. That's also the smallest number ever testified to
9 in this country.
10 Q. Based on your training and your experience, have you ever
11 known or even heard of two persons, two different people, having
12 identical fingerprints?
13 A. No, I have not.
14 Q. And would that even include genetically identical twins?
15 A. That's true. Genetically identical twins can have
16 fingerprint patterns that are very similar and you actually have
17 to put a magnifier on and look closely to determine that there
18 is information that is different. There's two different things
19 when you are talking about fingerprints. There's classification
20 and there's comparison. You need the entire tip of the finger
21 in order to make a class- -- for a classification, and those
22 basic classifications are loops, arches, and whirls. With
23 twins, they could be very similar. But to actually look at the
24 little ridge detail, they are different.
25 Q. Now, will you please look at Exhibit 240 in this. There is
336
1 a ten-print card. Have you had an opportunity to examine
2 Exhibit 240, the fingerprints on it?
3 A. Yes, I have.
4 Q. Can you please look at Exhibit 137, the spiral notebook
5 that's going to be in the corresponding exhibit binder to your
6 right there.
7 A. Exhibit 137 is a spiral notebook that I reviewed in my
8 office. It's marked page 27 of the spiral notebook.
9 Q. All right. Now, 27, on pages 27, 28, and 29 of that spiral
10 notebook, did you apply any kind of chemicals in the search for
11 latent fingerprints?
12 A. Yes, I did. The most commonly used chemical for processing
13 porous items, which would be a paper item such as the notebook,
14 is Ninhydrin, and it reacts with the salt and acids present in
15 your perspiration. It also turns the paper items purple and
16 develops the prints in purple.
17 Q. Did you have a careful opportunity to look at those three
18 pages of the spiral notebook before you applied the chemical?
19 A. Yes, I did.
20 Q. All right. Please turn to Exhibit 137A, which is a
21 photocopy of those pages before you applied the chemical.
22 A. That's correct.
23 137A is a photocopy of the paper before it was processed
24 with the chemical Ninhydrin, Ninhydrin crystals that I actually
25 suspend in a solution of petroleum ether, and the petroleum
337
1 ether has a tendency to ruin the ink or to make the ink run, and
2 in this case, we photograph all evidence before we process.
3 Q. So 137A are those three pages of 27, 28, and 29. Are those
4 accurate photocopies of what those three pages looked like in
5 terms of the text and handwriting, etc., before you applied the
6 solution for the purpose of undertaking fingerprint analysis?
7 A. Yes, they are photocopies prior to the processing.
8 MR. LONDON: I offer 137A.
9 MR. LEEN: No objection.
10 THE COURT: 137A is admitted.
11 (Exhibit No. 137A was admitted.)
12 Q. (By Mr. London) Now, please describe the process you use in
13 applying that chemical and trying to see if latent prints could
14 be recovered from any of those pages.
15 A. In the request to process the notebook, the request was to
16 only process the pages that actually had the writing or
17 handprinting on the pages. The easiest way to do that is to dip
18 the solution. It can either be sprayed, it can be painted on,
19 or in this case it was dipped on. I fill a tray up with
20 Ninhydrin chemicals and the petroleum ether, and then I dip each
21 page individually without removing them from the spiral
22 notebook.
23 After the Ninhydrin is allowed to adhere to the surface, the
24 petroleum ether dissipates. Once it dissipates, we put it in
25 the humidity chamber so it will bring up the prints, the heat or
338
1 humidity will raise the purple fingerprints that you see now.
2 Q. And what was the result of applying the chemicals and going
3 through the process you just described?
4 A. I developed fingerprints on -- let's see, the notebook.
5 There were 28 pages, including the front and back cover of
6 the notebook that were processed. Of the 28 pages, including
7 the front and back that have writing, nine did not -- there were
8 no latent prints of value for comparison purposes developed.
9 The other pages all had fingerprints of value for comparison.
10 Q. With respect to pages 27, 28, and 29 of the notebook, did
11 you recover latent prints that were of comparative value on
12 those pages?
13 A. Yes, I did.
14 Q. And did you have an opportunity to compare those prints that
15 you recovered on those pages to the ten-print card that's
16 Exhibit 240 that was taken by the U.S. marshal of the defendant?
17 A. I compared the known prints with the prints that I received
18 from the U.S. marshal to determine that it was one and the same
19 individual. The known print card that I used for my comparison,
20 I did compare Exhibits 27, 28 and 29.
21 Q. Were those pages of Exhibit 137; 27, 28 --
22 A. Yes.
23 Q. And did you say that you did make a finding that they were
24 made by one and the same individual?
25 A. The -- I developed latent prints on these pages. If I could
339
1 refer to my notes, I will determine whether there were latent
2 prints that I identified.
3 Q. Let me ask you this just for the sake of saving some time.
4 Did you find anybody else's prints other than the ident- -- the
5 individual who was identified by you as a match to the known
6 print?
7 A. No, I did not.
8 Q. All right. Let's do it that way.
9 Please turn to Exhibit 171.
10 A. 171.
11 Q. It's a fax cover sheet.
12 A. Yes. The fax cover sheet is still in the same evidence
13 folder that I sealed it in with my handwritten notes.
14 Q. All right. Now, did you have an opportunity to test Exhibit
15 171, the fax cover sheet, for latent prints?
16 A. Yes, I did. It was also processed for latent prints, and
17 there was one latent print processed of value for comparison
18 purposes. In other words, it had enough information to do the
19 comparison with the known prints. And I did identify the one
20 print as being a fingerprint of James Dalton Bell.
21 Q. From the known -- from the known print?
22 A. Yes.
23 Q. Please turn to Exhibit 226. Actually, there are three I'm
24 going to ask you to look at in succession, 226, 227, and 228.
25 A. Exhibit 226?
340
1 Q. Yes.
2 A. Exhibit 226 is also in the same sealed envelope that it came
3 from my forensic laboratory. It's thermal paper. It was also
4 processed with Ninhydrin. Sometimes thermal paper has a
5 tendency to react. The petroleum ether tears away the layers
6 and it becomes black.
7 Q. Were these three Xerox copies of the note that you were
8 given to test for prints? Or three copies of the same
9 handwritten note?
10 A. Yes, they were.
11 Q. All right. Please look at 226A, 227A, and 228A. These
12 would be photocopies of those exhibits before you were asked to
13 apply the solution, is that correct?
14 A. That's correct.
15 Q. In looking at the A version, or the preprocessing version of
16 those, do those appear to be accurate photocopies of the
17 original notes that you were asked to test for prints?
18 A. Yes, they do.
19 Q. All right. So the text in those notes is as it would have
20 appeared when it was given to you?
21 A. Yes.
22 Q. All right. And when you applied the chemical solutions to
23 the originals you were asked to test, did it also have an effect
24 on the ink and did it degrade the image?
25 A. Yes, it did.
341
1 Q. Can you please -- all right.
2 A. It actually shows the indentation of the original writing,
3 but the writing itself is deteriorated because of the petroleum
4 ether.
5 Q. Were you able to develop any latent prints from the
6 originals, 226, 227, and 228?
7 A. No, I was not.
8 MR. LONDON: All right. Thank you.
9 THE COURT: Cross-examination.
10 MR. LEEN: No questions.
11 THE COURT: The witness may be excused.
12 (Witness excused.)
13 THE COURT: It's time to take the recess. We will take
14 a 15-minute recess. Please do not discuss the case among
15 yourself or with anyone during the recess. Please go to the
16 jury room.
17 THE COURT: Anything to take up?
18 MR. LEEN: There is one thing, Your Honor. Maybe we
19 could do it when we come back, but I wanted -- the government, I
20 think, wants to introduce a newspaper article which I think is
21 -- should be deemed inadmissible. But the court will have to
22 look at the article first.
23 THE COURT: Well, let me look at it.
24 THE CLERK: Is it marked?
25 MR. LEEN: Yes. Plaintiff's 277.
342
1 THE CLERK: 277.
2 MR. LEEN: 277.
3 THE COURT: Government?
4 MR. LEEN: Well, Your Honor, there was widespread
5 publicity several years ago about Sarin which is the reason why
6 so many people do know it to be a deadly nerve agent and are
7 afraid of it, and I wanted to offer that as a
8 self-authenticating document as a newspaper article as example
9 of some of the publicity that Sarin received at the time.
10 THE COURT: What's the purpose?
11 MR. LONDON: Your Honor, the victims, named victims in
12 this case were particularly afraid of this individual because of
13 his propensity to play with chemicals and the fact that he had
14 admitted synthesizing Sarin, and that was particularly
15 frightening to them. And I just wanted to be able to
16 corroborate --
17 THE COURT: Well, they can say so, can't they?
18 MR. LONDON: They can. I just wanted to make sure I
19 had some corroborative evidence to be able to offer.
20 THE COURT: Why do you need corroborative evidence?
21 MR. LONDON: Well, they relied -- many -- some of the
22 witnesses relied on press accounts as the basis for their
23 knowledge of what Sarin is. I simply had that --
24 THE COURT: Can't they -- are they going to testify to
25 that?
343
1 MR. LONDON: Yes.
2 THE COURT: Well?
3 MR. LONDON: All right. Then we won't offer the
4 exhibit, Your Honor.
5 THE COURT: At least at this time.
6 MR. LONDON: Not at this time.
7 THE COURT: All right. Fifteen-minute recess.
8 (Recessed at 11:05 a.m.)
9 (Jury not present; 11:30 a.m.)
10 THE COURT: Anything to take up before the jury?
11 MR. LONDON: Yes, Your Honor. There are several
12 matters to take up before the jury is brought back.
13 THE COURT: All right.
14 MR. LONDON: First, it has been brought to my attention
15 by one of the witnesses who's testified in this case, Mr. Young,
16 who has been present in court since he testified, that he has
17 been able to download from the court's pacer computer system
18 much of the court file to the extent that it's available on
19 pacer, but in particular, what is docket number 133, which is
20 the names and addresses of the members of our jury. Mr. Young
21 is asking me to request of the court clarification of the scope
22 of the court's order yesterday afternoon sealing the court file
23 in this case until further order of this court. And if there
24 are any questions that he wishes to ask the court in that
25 regard, I can certainly invite him to address the court
344
1 directly.
2 THE COURT: I don't want to hear from him. All I'm
3 saying is this whole file is sealed until the end of this case,
4 which will be when the jury returns a verdict. Then it's
5 available to anybody in the clerk's office.
6 MR. LONDON: I guess a question --
7 THE COURT: Which includes the jury list.
8 MR. LONDON: I guess the question that I have in my
9 mind is, it's one thing to order that it be sealed, but
10 apparently people are having no problems getting access to it
11 electronically, and I think Mr. Young wants to know what the
12 consequences would be of putting up on the Internet anything
13 that he has downloaded from this court's computer system.
14 THE COURT: That's not up to me.
15 MR. YOUNG: I'm sorry, I didn't hear what the judge
16 said.
17 MR. LONDON: He said it was not up to him.
18 MR. YOUNG: Okay. Thank you.
19 THE COURT: Anything else?
20 MR. LONDON: Yes, Your Honor. It's quite possible that
21 in the time before the lunch break the government is going to
22 play and offer exhibits that involve the use of the tracking
23 device that was put on the defendant's car. In the discovery
24 phase of this case, the defendant's attorney demanded to know
25 all of the technical specifications and all of the information,
345
1 how the tracking device was installed, where in his car
2 precisely it was installed. We have filed a motion in limine in
3 our trial brief, Your Honor, in which we ask that that
4 information be not disclosed. I have cited the authorities in
5 the brief for why there is law enforcement privilege for that
6 kind of information, and I believe that this kind of tracking
7 device falls squarely within the privilege.
8 As the court is probably aware, law enforcement is permitted
9 to conceal certain investigative techniques and tools so that
10 they are not compromised in other law enforcement
11 investigations.
12 THE COURT: Mr. Leen, why do you need that
13 information?
14 MR. LEEN: That information -- I haven't requested that
15 information, Your Honor. I didn't intend to question on where
16 it was placed. The only question about the tracking device
17 would be its reliability and how accurate it is. Specifically,
18 whether it's ac- -- military grade or whether it's commercial
19 grade.
20 THE COURT: What's privileged about that, counsel?
21 MR. LONDON: Your Honor, we actually expect the witness
22 to be able to testify that he tested the accuracy of the
23 equipment using other equipment, and in fact we have additional
24 witnesses who will also verify its accuracy should that become
25 necessary. So my view is there's nothing privileged about
346
1 the -- there's nothing off limits about his delving into the
2 accuracy of the equipment on cross-examination, Your Honor, and
3 I'm perfectly happy to establish it in direct examination. I
4 just don't want the witness to be asked to disclose the
5 technical specifications, and, in particular, how it was rigged
6 to the car and to what part of the car it was rigged up, because
7 at that point it enables people like Mr. Bell or others in the
8 future to dismantle -- to find them and dismantle those devices
9 in other cases.
10 THE COURT: So what am I supposed to say now?
11 MR. LONDON: Well, I raise it before the jury --
12 THE COURT: You raised it. He says he isn't going to
13 raise it.
14 MR. LONDON: Well, if he's not going to raise it, then
15 I will let it stand at that. I was led to believe by the
16 pretrial filings, of Mr. Bell's in particular, things he filed
17 himself, that there was a demand for that information, and
18 that's why I raise it.
19 THE COURT: Are we ready for the next witness?
20 MR. LONDON: We are, Your Honor.
21 THE COURT: All right. Bring the jury.
22 (Jury present; 11:36 a.m.)
23 THE COURT: All right. Let the record reflect all
24 members of the jury are present again.
25 Next witness, counsel.
347
1 MR. LONDON: Yes. The government would call Kristie
2 Hanley.
3 KRISTIE HANLEY, PLAINTIFF'S WITNESS, SWORN
4 THE CLERK: Please be seated.
5 Please state your full name and spell your last name.
6 THE WITNESS: Kristie Hanley. H-a-n-l-e-y.
7 DIRECT EXAMINATION
8 BY MR. LONDON:
9 Q. (By Mr. London) Ms. Hanley, good morning. I want to ask
10 you if you can begin by just telling the jury how you are
11 employed?
12 A. I work for a long distance company called Uni-Tel
13 Communications. I'm the office manager.
14 Q. Is that a telephone service provider?
15 A. Yes, sir.
16 Q. Is it a long distance service provider, particularly?
17 A. Yes, sir.
18 Q. Do you work for Uni-Tel as a, what we call, custodian of
19 records?
20 A. Yes.
21 Q. What does that mean?
22 A. It depends on what -- I don't really understand your
23 question, I'm sorry.
24 Q. Is it the practice of Uni-Tel to keep records in the
25 ordinary course of business on the various telephone accounts it
348
1 has with customers?
2 A. Yes, sir.
3 Q. By its service. Okay. As a custodian of records, are you
4 routinely required to furnish law enforcement, either pursuant
5 to subpoena, grand jury or otherwise, telephone records,
6 subscriber information, account information, telephone toll
7 records for particular accounts?
8 A. Yes, sir.
9 Q. And do you testify as to the validity or the accuracy of the
10 account information that you provide under subpoena?
11 A. Yes, sir.
12 Q. All right. Now, were you asked as part of this case to
13 furnish the government with telephone account record information
14 for a telephone number 630 -- excuse me; I'm sorry -- for an
15 address at 7214 Corregidor in Vancouver, Washington?
16 A. Yes, sir.
17 Q. Was that for the months, essentially, May through September
18 of 2000?
19 A. I believe so, yes.
20 Q. Did you furnish the government with statements of the
21 telephone records for that account?
22 A. Yes, I did.
23 Q. For those -- for those months. All right. Thank you.
24 Please turn, if you would, to Exhibit 172 in the binder that
25 would be to your right. It's broken up by the exhibit numbers.
349
1 Find the one with 172 in it.
2 A. Okay.
3 Q. All right. What does Exhibit 172 appear to you to be?
4 A. It looks like the phone bills that we provided to the office
5 for Sam Bell.
6 Q. For Sam Bell?
7 A. Yes.
8 Q. All right. And at what address, please?
9 A. 7214 C-o-r-r-e-g-i-d-o-r.
10 Q. Okay.
11 A. Vancouver, Washington.
12 Q. All right. And can you tell from this invoice or account
13 summary what the telephone number is for this subscriber, Sam
14 Bell?
15 A. Can I pull it out?
16 Q. Yes, please.
17 A. The phone number is (360) 696-4308.
18 Q. All right. And as far as you are aware, is the information
19 here that's printed out with regard to the origination of calls
20 and the numbers that are dialed by the telephone that has the
21 number that you just read out, the account subscriber's number,
22 is that information accurate?
23 A. Yes, sir.
24 Q. How was that data captured?
25 A. What happens is the call originates, that phone is put
350
1 through a switch, and then the call goes to the long distance
2 carrier. They send us the call records with the originating
3 phone number, the terminating phone number, the time and the
4 date of the phone call.
5 Q. All right. So that is captured, what, on a computer system
6 of some kind and then summarized and sent to the subscriber in
7 the form of a bill?
8 A. It's sent to us through our electronic exchange file which
9 we then convert into our billing software which prints out the
10 bill.
11 Q. All right. Do you have any reason to doubt the accuracy of
12 the capture of that information and the way it's summarized and
13 returned to you?
14 A. No.
15 Q. All right. Will you please --
16 MR. LONDON: In fact, we offer Exhibit 172.
17 MR. LEEN: No objection.
18 THE COURT: 172 is admitted.
19 (Exhibit No. 172 was admitted.)
20 Q. (By Mr. London) I'm going to ask you if you can look in
21 fairly quick fashion at Exhibit 173?
22 A. Yes.
23 Q. And tell us if that also appears to be an invoice for the
24 month of June, or a June 15th statement summary for 7214
25 Corregidor and the telephone number that you referenced.
351
1 A. Yes, sir.
2 MR. LONDON: All right. We offer 173.
3 MR. LEEN: I'm sorry, Your Honor, I was talking to the
4 defendant.
5 No objection.
6 THE COURT: 173 is admitted.
7 (Exhibit No. 173 was admitted.)
8 Q. (By Mr. London) Please look at 174; the same question.
9 A. This would be their July invoice, yes.
10 MR. LONDON: All right. We'd offer 174.
11 MR. LEEN: No objection.
12 Q. (By Mr. London) 175, please.
13 A. Yes, this would be the August invoice.
14 MR. LONDON: We offer 175.
15 THE COURT: 174 and 175 are admitted.
16 (Exhibits Nos. 174 and 175 were admitted.)
17 Q. (By Mr. London) 176, please.
18 A. Yes, this is the bill we sent in.
19 Q. Okay. 177, the same thing.
20 A. Yes.
21 Q. Skip ahead, please, to 179.
22 A. Okay.
23 Q. All right. Same thing, is that a December statement for
24 that account?
25 A. Yes, sir.
352
1 Q. All right.
2 MR. LONDON: And I offer 179.
3 MR. LEEN: No objection.
4 THE COURT: 179 is admitted.
5 (Exhibit No. 179 was admitted.)
6 MR. LONDON: Thank you.
7 Q. (By Mr. London) Finally, back to 178, if you would.
8 A. Okay. Yes.
9 Q. Is that a statement that was sent out or dated November
10 11th, 2000, for that account?
11 A. Yes, sir.
12 Q. Does that include telephone calls that would have been made
13 by the number you referenced for the month of October?
14 A. Yes, sir.
15 Q. All right. Can you please turn to the second page, I
16 believe, of 178.
17 Do you see a series of dates that are referenced in the
18 left-hand column of the exhibit for the month of October?
19 A. Yes.
20 Q. Will you scroll down to October 31st. Do you see a call to
21 Portland, Oregon, at 10:34 p.m.?
22 A. Yes.
23 Q. I'm sorry, that might be -- I'm sorry, that's a.m.
24 A. (Nods head.)
25 Q. Can you please tell us what telephone number was called at
353
1 10:34 a.m.?
2 A. Yes. (503) 326-2246.
3 Q. And the approximate duration of that call?
4 A. Two minutes.
5 MR. LONDON: We'd offer 178.
6 MR. LEEN: No objection.
7 THE COURT: 178 is admitted.
8 (Exhibit No. 178 was admitted.)
9 MR. LONDON: Thank you.
10 THE COURT: Cross-examination.
11 MR. LEEN: I have no questions.
12 THE COURT: The witness may be excused.
13 MR. LONDON: I'm sorry, Your Honor, I neglected to do
14 something.
15 I'm sorry. I apparently neglected to offer 176 and 177.
16 THE COURT: What does the clerk's records show?
17 THE CLERK: No, it's not offered.
18 THE COURT: 176 and 177 are admitted.
19 (Exhibits Nos. 176 and 177 were admitted.)
20 MR. LONDON: Thank you.
21 THE COURT: The witness may be excused.
22 (Witness excused.)
23 BRIAN D. MEYER, PLAINTIFF'S WITNESS, SWORN
24 THE CLERK: Please be seated.
25 Please state your full name and spell your last name.
354
1 THE WITNESS: Brian Daniel Meyer. M-e-y-e-r.
2 DIRECT EXAMINATION
3 BY MR. LONDON:
4 Q. Mr. Meyer, how are you employed?
5 A. I'm a special agent with the Bureau of Alcohol, Tobacco, and
6 Firearms.
7 Q. And were you employed as a special agent with ATF in the
8 autumn of 2000?
9 A. Yes, I was.
10 Q. All right. And as part of your duties as an ATF agent in
11 that regard, were you asked to install or to help install an
12 electronic tracking device on the vehicle of defendant, James
13 Dalton Bell?
14 A. Yes, I was.
15 Q. All right. And did you in fact do that on November 6th of
16 2000?
17 A. That's correct.
18 Q. And was that done at the time that other agents were
19 executing the federal search warrant at Mr. Bell's residence?
20 A. Yes, it was.
21 Q. All right. Was that done pursuant to a federal court order,
22 as best as you know?
23 A. Yes, it was.
24 Q. Okay. Can you please tell us in broad terms how this
25 tracking device works?
355
1 A. The tracking device is a global positioning system unit.
2 It's a device that uses satellites to fix a certain position to
3 the device. That information is transmitted via radio frequency
4 to a software program that plots that information onto a mapping
5 system.
6 Q. All right. Well, let me -- let me break it down just a
7 little bit. Does the device that you install on the car either
8 have a power source or a hookup to a power source of some kind
9 so that it can emit an electronic signal?
10 A. Yes, it does.
11 Q. All right. And is that signal then captured or received by
12 a commercial satellite?
13 A. Yes, it is.
14 Q. And is it then -- is the data that the signal sends out,
15 that is captured by the satellite, is that stored by the
16 satellite or retransmitted by the satellite back down to earth,
17 if you will?
18 A. It is actually -- the information is stored from the
19 satellite to the device.
20 Q. And does the satellite have an ability to translate the
21 signal into longitude and latitudinal -- excuse me --
22 longitudinal and latitudinal data?
23 A. That's correct, it does.
24 Q. All right. So is it fair to say that as the tracking device
25 moves through physical space, the longitude and latitude of its
356
1 location are recorded in real time?
2 A. Yes, it is.
3 Q. And can those be transmitted by the satellite back down to
4 earth so somebody is capable of tracking the location of the
5 satellite device in real time?
6 A. Yes, it is.
7 Q. All right.
8 A. May I make one correction? It is actually transmitted from
9 the device via RF. It's not transmitted from the satellite to
10 the --
11 Q. All right. Thank you. When you say RF, does that mean
12 radio frequency?
13 A. That's correct.
14 Q. All right. Do you take any steps either prior to the
15 installation of such a device or as -- after the device has been
16 installed to verify the accuracy of the information that it is
17 capturing and that is being sent by a radio frequency?
18 A. Yes, I have.
19 Q. What steps do you take to make sure, essentially to
20 double-check the accuracy of the signal that you are getting
21 as to the location of the tracking device?
22 A. I have a separate hand-held device that I use that's made by
23 another manufacturer to -- to corroborate those, those
24 settings.
25 Q. All right. And is -- when you say hand-held device, is that
357
1 also what we call a GPS system?
2 A. Yes, it is.
3 Q. What does GPS stand for?
4 A. Global positioning system.
5 Q. All right. Are you aware of any differences in grade or
6 quality or reliability of GPS equipment in general? For
7 example, if there's such a thing as military grade that might be
8 particularly high quality and commercial grade that might not be
9 very reliable?
10 A. Yes, there is.
11 Q. What kinds of factors affect the reliability of this
12 equipment?
13 A. The ability of the receiver in the device to pick up more
14 chat -- more satellites. Some may only pick up three
15 satellites, some may pick up to 12 satellites.
16 Q. And, in fact, aren't there a number of GPS tracking devices
17 sort of commercially available on the market these days?
18 A. Yes, there is.
19 Q. Could I go into a Costco, for example, and buy a GPS system
20 if I wanted to put it in my own car just for kicks?
21 A. Yes, you could.
22 Q. What grade or quality would you say was the equipment that
23 was used in this case?
24 A. It was a high quality multi-channel, multi-satellite
25 tracking system.
358
1 Q. Is that one that is typically used by law enforcement?
2 A. Yes, it is.
3 Q. Do you happen to know if that's one that would also be used
4 by military?
5 A. Probably, yes.
6 Q. And the equipment that you use to track the equipment that
7 was installed in the car, what quality level equipment was that,
8 would you say?
9 A. Again, that is high quality. Something that the military
10 law enforcement would use.
11 Q. All right. Now, when the device that was installed on Mr.
12 Bell's car gave out a particular readout, were you able to
13 correspond that to a location on a map and then go and check and
14 see if his car was actually there?
15 A. Yes, we were able to do that.
16 Q. How did do you that?
17 A. The coordinates are laid out on a graphical map in a
18 software program and the mapping software gives you streets,
19 cross streets. It gives you landmarks.
20 Q. All right. So I just want to break it down a little bit.
21 Is it your testimony that there's also a software package that
22 is available that enables the data that is captured by the
23 tracking device and the satellite to be translated into
24 coordinates that appear on a physical map, for example, of
25 downtown Portland or Vancouver, Washington?
359
1 A. That is correct.
2 Q. All right. And so if you receive a signal that indicates on
3 that software package that Mr. Bell's car is in the parking lot
4 at the Vancouver Public Library, for example, are you able to go
5 to the Vancouver Public Library and see if you can actually spot
6 his car?
7 A. Yes, you can.
8 Q. Do you know what his car looks like?
9 A. Yes, I do.
10 Q. What was the make of the car that you installed the device
11 in?
12 A. It was a Nissan Maxima.
13 Q. Did you ever receive a signal that the Nissan Maxima was at
14 a particular location and then did you ever go and verify that
15 it was at that location?
16 A. I did not personally.
17 Q. Do you know if anyone at ATF did?
18 A. I believe they did.
19 Q. Do you know Alice Clark?
20 A. Yes, I do.
21 Q. Is she a special agent with ATF?
22 A. Yes, she is.
23 Q. Did she help in this project to verify the accuracy of the
24 satellite information by going to physical locations where it
25 was reporting itself to be and to verify that the car was in
360
1 fact there?
2 MR. LEEN: Objection. Hearsay.
3 MR. LONDON: I asked if he knew if she did that.
4 MR. LEEN: Well, he would know it through hearsay, Your
5 Honor.
6 THE COURT: In his office?
7 MR. LONDON: Yes.
8 Q. (By Mr. London) Do you know -- the question is, do you know
9 whether Ms. Clark personally went to any locations that were
10 reported as the location of Mr. Bell's vehicle by the GPS
11 tracking device and was able to see that in fact the car was
12 there?
13 A. Yes, I do.
14 MR. LEEN: Objection. Hearsay. Move to strike.
15 THE COURT: It will stand. Do you want to voir dire?
16 MR. LEEN: No, Your Honor.
17 THE COURT: Go ahead.
18 MR. LONDON: I proffer that Ms. Clark is available and
19 we can bring her in.
20 THE COURT: All right. Any further questions of this
21 witness?
22 MR. LONDON: Yes.
23 Q. (By Mr. London) I want to turn your attention to the very
24 early morning hours of November 10th of 2000, shortly after
25 midnight. Have you had an opportunity to review the data
361
1 captured as translated by the software package onto the map?
2 A. Yes, I have.
3 Q. Of the location of the tracking device early in the morning
4 of November 10th?
5 A. Yes, I have.
6 Q. And has that been translated onto a computer diskette for
7 the purpose of display?
8 A. Yes, it has.
9 Q. And do you have any reason to doubt the accuracy of the
10 transfer of the digital information through the software package
11 onto the diskette?
12 A. No, I don't.
13 Q. Have you had an opportunity to exhibit -- to view, excuse me
14 -- Government's Exhibit 215 in this case?
15 A. Yes, I have.
16 Q. Is that the diskette?
17 A. Yes, it is.
18 Q. All right. What does -- what does the diskette show when
19 played with regard to the location of the tracking device in its
20 point of origination in the excerpt that has been put onto the
21 diskette?
22 MR. LEEN: Your Honor, I would object that the
23 reliability has not been established of the device. The
24 scientific reliability has not been established.
25 THE COURT: You can go into it on cross-examination, or
362
1 do you want to voir dire now?
2 MR. LEEN: No. I think it's the government's burden.
3 So I --
4 MR. LONDON: Well, I do ask --
5 THE COURT: Well, let's --
6 MR. LONDON: I will continue.
7 THE COURT: Just a moment. Just a moment. It's lunch
8 time.
9 The jury is cautioned, please do not discuss the case among
10 yourselves or with anyone else over the lunch recess. Be in the
11 jury room at 1:30. 1:30.
12 (Jury excused at 11:55 a.m.)
13 THE COURT: The witness may step down off the stand.
14 Nobody is to leave the courtroom until the jury -- and the
15 security people will take care of it -- until the jury has
16 cleared the corridor. And then we have another matter to take
17 up.
18 Is anybody present that is seeking the names of these
19 jurors?
20 MR. LONDON: Your Honor --
21 THE COURT: Do you have any knowledge, counsel?
22 MR. LONDON: The knowledge I have is simply this. I
23 believe the names of the jurors and their addresses have already
24 been obtained by Mr. Young, and Mr. Young now wants to know what
25 the consequences would be of his publishing it on his website on
363
1 the Internet.
2 THE COURT: Tell Mr. Young to come forward.
3 Mr. Young, you were the same person that was previously a
4 witness in this case, sir?
5 MR. YOUNG: Correct.
6 THE COURT: Why, if you do -- I don't want to put words
7 in your mouth -- do you want to publish the names of these
8 jurors?
9 MR. YOUNG: Well, it turns out I would not like to, but
10 because it's public information, I wanted to bring it to the
11 court's attention that it is public information because I
12 downloaded it this morning, and listening to your order
13 yesterday I was concerned that it is public information. I
14 think your order said we should not publish information like
15 that. So I wanted clarification on that.
16 THE COURT: No one, the print media, electronic media,
17 no member of the prosecution, none of the witnesses of the
18 prosecution, nor the defendant, nor their lawyers are to print,
19 under any circumstances, the names of these jurors pending the
20 final determination of the verdict in this case.
21 MR. YOUNG: Understood.
22 THE COURT: Under penalty of contempt.
23 You are free to go.
24 MR. YOUNG: Yes, sir.
25 THE COURT: Do you understand, sir?
364
1 MR. YOUNG: Yes, I do.
2 THE COURT: Just so there's no understanding --
3 misunderstanding.
4 MR. YOUNG: I understand that clearly. That's why I'm
5 bringing it to the court's attention that this is out there on
6 the website right now.
7 THE COURT: All right. Anybody else have any questions
8 about that?
9 Any member of media present or any of either party, the
10 government or the defendant?
11 MR. LONDON: I have a question about that, which is
12 that, does the scope of that order also include the names and
13 addresses of people who happen to be identified in exhibits that
14 have been now filed by this court as part of the trial record?
15 THE COURT: The jurors.
16 MR. LONDON: The jurors only?
17 THE COURT: The jurors only.
18 MR. LONDON: Yesterday, Your Honor, the court ordered
19 that the entire court file shall be sealed until it --
20 THE COURT: It will remain in this courtroom in the
21 custody of the clerk of this court pending the jury verdict.
22 And then it will be in the court, available to anybody.
23 Any other questions?
24 1:30.
25 Oh, here. I want to give each party --
365
1 THE CLERK: They've got them.
2 THE COURT: You've got them? You've got the proposed
3 packet?
4 MR. LEEVER: I did it yesterday.
5 MR. LEEN: Yes, we got those yesterday, Your Honor.
6 THE COURT: All right. They do not purport to be the
7 final. They're -- I give them to you so you won't have to look
8 at them but one or two minutes and try to understand them. They
9 do not purport to be the final instructions.
10 Each party, at the proper time, will have objections to
11 except to the proposed instructions as it will appear at that
12 time, and I will read them to you so you will have the final
13 package. Each one of you will get to except to both the court's
14 proposed instructions and the court's failure to give each
15 party's proposed instructions.
16 Do you understand?
17 MR. LEEN: Yes, sir.
18 THE COURT: I'm just giving them to you now so you can
19 read them over your lunch or your dinner recess.
20 MR. LEEN: Does the court anticipate when you want to
21 address jury instructions at this point, or do you just don't --
22 at this point we don't know when it will be?
23 THE COURT: Whenever both parties rest.
24 MR. LEEN: All right.
25 THE COURT: Whenever both parties rest. No more
366
1 evidence.
2 MR. LEEN: Yes, sir.
3 THE COURT: Okay?
4 All right. Court at 1:30.
5 (Recessed at 12:00.)
6 AFTERNOON SESSION
7 (Jury not present; 1:40 p.m.)
8 THE COURT: Are we ready for the jury?
9 THE CLERK: Yes, Your Honor, I think so.
10 THE COURT: All right. Bring the jury.
11 THE CLERK: Be seated, please.
12 (Jury present; 1:41 p.m.)
13 THE COURT: All right. The jury is again in the box.
14 Witness is still under oath. Continue with direct examination.
15 DIRECT EXAMINATION (Continuing)
16 BY MR. LONDON:
17 Q. Agent Meyer, before the break I was in the process of asking
18 you about what steps you took to verify the accuracy or the fact
19 that the tracking device was working properly. Did you check
20 the accuracy of the tracking device even before you left your
21 office on November 10th to go and install it during the
22 execution of the search warrant?
23 A. Yes, I did.
24 Q. Please tell us what steps you took to make sure it was
25 working properly?
367
1 A. The night before the warrant, that would be November 9th, I,
2 while in my office, the device was activated, and I took a
3 reading using the mapping software, and it indicated I was in
4 fact at my office.
5 Q. All right. And did you take any steps to repeat that
6 process while the search warrant was still in progress after you
7 had installed the device?
8 A. Yes, I did.
9 Q. What did you do?
10 A. During the search warrant service and after my installation,
11 I went to an office and again queried the device, and it gave me
12 the location of where it was.
13 Q. And it gave you a reading?
14 A. Yes, it did.
15 Q. And what was the reading that it gave you?
16 A. It was the residence of where we were performing the search
17 warrant.
18 Q. So the search was still ongoing, Mr. Bell was still in the
19 house, and you had installed the device in the car at that
20 point, is that correct?
21 A. That is correct.
22 Q. So the car had not left the property at that point, and
23 that's the reading you got once you got back to your office?
24 A. Yes.
25 Q. All right. Now, did you remove the device after Mr. Bell
368
1 was arrested in this case?
2 A. Yes, I did.
3 Q. And does the device retain the recorded data that it has
4 captured during its life, during the time that it has been
5 functioning?
6 A. Yes, it has.
7 Q. Did you plug the device into a computer which you could then
8 use to download the information that had been captured by the
9 traffic device so that it could be put onto a computer diskette?
10 A. Yes.
11 Q. Have you had an opportunity to look at what we have marked
12 as Government's Exhibit 215?
13 A. Yes, I have.
14 Q. And what is Exhibit 215?
15 A. It's a disk, a computer disk, floppy disk, that has the data
16 that was downloaded directly from the --
17 Q. All right. Now, were you able to make a partial printout of
18 the longitudinal and latitudinal coordinates captured by the
19 device for the morning of -- early hours for the morning of
20 November 10th?
21 A. Yes.
22 Q. And have you examined what we have marked as Exhibit 216?
23 A. Yes, I have.
24 Q. Is 216 the raw data in terms of longitude and latitude, the
25 path of the device a little bit after midnight on November 10th,
369
1 going on through the next several hours?
2 A. That is correct.
3 Q. Okay.
4 MR. LONDON: At this point, Your Honor, we would offer
5 215.
6 MR. LEEN: No objection.
7 THE COURT: It's admitted.
8 (Exhibit No. 215 was admitted.)
9 MR. LONDON: And 216.
10 MR. LEEN: No objection.
11 THE COURT: 216 is admitted.
12 (Exhibit No. 216 was admitted.)
13 Q. (By Mr. London) All right. Did you transfer the data that
14 is in Exhibit 216 onto a diskette for purposes of playing in the
15 courtroom here today?
16 A. Yes, I did.
17 Q. All right. Now, have you had a chance to play that
18 display?
19 A. Yes, I have.
20 Q. Does it play in real time? In other words, does -- will it
21 take us as long to play that device for the jury as the device
22 actually spent recording the motion of the tracking, its own
23 motion over the course of the morning?
24 A. No, it is not accurate real time.
25 Q. So it's --
370
1 A. It is a time lapse.
2 Q. I'm sorry. It is sped up so that it can be viewed more
3 quickly?
4 A. That is correct.
5 Q. Does the software program that translates the data include a
6 timer system so that one can see how much time elapses during
7 the course that the tracking device is shown to be moving
8 around?
9 A. Yes, it does.
10 MR. LONDON: At this point I would like to publish the
11 display, and I want to begin by asking that it be shown -- can
12 you see that in front of you?
13 A. Yes, I can.
14 MR. LONDON: All right. And now I would like to
15 publish it for the jury.
16 THE COURT: Well, the main thing, can the jury see it?
17 MR. LONDON: I'd just ask that they be able to view
18 it.
19 Q. (By Mr. London) Have you had a chance to examine --
20 THE COURT: Just a moment. Any member of the jury -- I
21 see you moving around. Any member of the jury can't see it?
22 JUROR NO. 12: We can if we can move forward.
23 THE COURT: Do you want to stand up? Go ahead.
24 JUROR NO. 12: Thank you.
25 THE COURT: Sure.
371
1 Anybody else can't see it, move where you can see it.
2 Okay, go ahead.
3 Q. (By Mr. London) Agent Meyer, there's a blowup here that
4 corresponds roughly to the image you have on the screen in front
5 of you. Can you see this?
6 A. Yes, I can.
7 Q. All right. The big ribbon of blue that appears across the
8 top, what is that?
9 A. It is the Columbia River.
10 Q. Do you see an indication on your display for the address of
11 7214 Corregidor north of the river in Vancouver?
12 A. Yes, I do.
13 Q. Okay. And do you see an indication for 14135 South
14 Clackamas down in Oregon City, the Groener residence?
15 A. Yes, I do.
16 Q. All right. They will show up on your -- on your screen
17 there.
18 A. Yes, it does.
19 Q. There also is an indication with a push pen icon for the
20 Jeff and Barbi Gordon at 2 -- at -- the former address at 242
21 Southeast Filbert. Can you see that?
22 A. Yes, I can.
23 Q. And also Jeff and Barbi Gordon, address 8300 Southwest
24 Chelan in Tualatin, does that appear there?
25 A. Yes, that is there.
372
1 MR. LONDON: All right. So for any members of the jury
2 who are have problems seeing what's on the screen, I offer this
3 just for you to be able to orient yourselves as to the
4 progression of the tracking device of the exhibit that you are
5 about to have played.
6 All right.
7 THE COURT: Why don't you do this for aid and
8 assistance. Why don't you get the easel and put it there, up
9 there. If that will help.
10 MR. LONDON: What I think I can probably do is just
11 prop it up.
12 THE COURT: Why don't you get the easel.
13 MR. LONDON: I'm happy to get the easel.
14 THE COURT: Can everybody see that now? If you can't
15 see it, raise your hand.
16 Okay.
17 Q. (By Mr. London) All right. What I would like you to do, as
18 this plays, is just describe as the tracking device progresses
19 what it is doing and where it is moving just to be able to help
20 the jury orient itself to the moving dot as it goes.
21 MR. LONDON: And I will ask now that the image zoom in
22 on fairly close to the residence of Mr. Bell at 7214 Corregidor
23 to the first point where on this exhibit the tracking device
24 begins to move.
25 MR. LONDON: And I will ask that you now play it.
373
1 A. This shows the, the tracking vehicle that -- the tracking
2 device that is installed in Mr. Bell's vehicle crossing the
3 Columbia River.
4 MR. LONDON: Please pause.
5 Q. (By Mr. London) The blinking black dot that moved in a
6 forward progression heading south, is that the location of the
7 tracking device as it is moving south?
8 A. That is correct.
9 Q. All right. At this point has it now crossed the Columbia
10 River?
11 A. Yes. It is in the process of crossing the river.
12 Q. All right. Does that mean that it's crossing the state line
13 from Washington into Oregon?
14 A. That is correct.
15 Q. Okay. Please continue.
16 A. Continue, traveling on Interstate 205, southbound.
17 It is now in Oregon.
18 Again continuing down I-5 -- I'm sorry, 205. Interstate
19 205.
20 At this point it is exiting --
21 MR. LONDON: Stop it at this point. We're just going
22 to pause it for a moment.
23 Q. (By Mr. London) Please describe what has just happened.
24 A. It shows the device that is installed in the vehicle exiting
25 Interstate 205 and traveling eastbound on Highway 212 and
374
1 continuing eastbound.
2 Q. (By Mr. London) Okay.
3 MR. LONDON: Continue.
4 A. And continuing eastbound on 212, Highway 212.
5 Now there's been a change southbound on 2 -- Highway 224.
6 MR. LONDON: Please stop.
7 Q. (By Mr. London) What road is it now on?
8 A. It is on Southeast Clackamas River Drive.
9 Q. Did you happen to observe at the beginning of the
10 demonstration approximately what time in the morning this was
11 transpiring?
12 A. I believe it was approximately -- actually, no, I didn't.
13 Q. All right. We can go back to that.
14 MR. LONDON: Please continue.
15 A. Again, it's continuing westbound on Southeast Clackamas
16 River Drive.
17 Q. (By Mr. London) Do you see the real time indicator up above
18 where it says 12:45, now 12:46 a.m.?
19 A. Yes, I do.
20 Q. What happens now?
21 A. The vehicle -- it appears the vehicle is at 141 South --
22 14135 South Clackamas River Drive, and is stationary at that
23 location.
24 Q. And it continues to emit a signal, correct?
25 A. That is correct.
375
1 Q. You explained that this is not in real time; this is
2 accelerated, correct?
3 A. That is correct.
4 Q. Do you know approximately what the aspect ratio is? How
5 long it takes to play?
6 A. Each -- each dot that you are -- that you are viewing would
7 represent a 15-second interval real time. So for each dot that
8 we see that is being shown, one per second, that is actually 15
9 seconds in real time.
10 The vehicle now is heading -- was heading westbound on 212
11 and has exited and is now heading northbound on southeast 122nd
12 Avenue.
13 Q. All right. And then it stops?
14 A. That is correct.
15 Q. Does that correspond with when Mr. Bell was stopped by the
16 sheriff's office of Clackamas County?
17 A. I believe that is correct.
18 Q. Did you happen to see how much time the tracking device
19 spent on the Groener property that used to be the residence of
20 Mike McNall?
21 A. I believe approximately ten minutes.
22 MR. LONDON: Could you return to the opening sequence
23 so that he can note the time that it left.
24 Q. (By Mr. London) When this display begins and the tracking
25 device starts to move eastbound and then south, what time in the
376
1 morning was it?
2 A. 12:15 a.m.
3 Q. So from the beginning of the display we've just seen until
4 the end of the display we've just seen where the device stops at
5 the time of the traffic stop, approximately half an hour has
6 elapsed, is that correct?
7 A. That's correct.
8 MR. LONDON: I have no further questions.
9 THE COURT: All right. Cross-examination.
10 CROSS-EXAMINATION
11 BY MR. LEEN:
12 Q. Good afternoon, Agent Meyer.
13 I was wondering, the tracking device was installed on
14 November 6th?
15 A. That is correct.
16 Q. And it was removed from the vehicle when?
17 A. It would have been Thanksgiving morning.
18 Q. So around the 27th, 28th?
19 A. That's correct.
20 Q. And the information that you played for the jury, that was
21 from the device itself or from what was broadcast up to the
22 satellites and then down to an independent --
23 A. It is actually from the sat- -- from the device itself.
24 Q. Now, was -- were agents able to follow this, the movements
25 of the vehicle independently, either in a mobile unit or at
377
1 their office?
2 A. Yes, they were able to do that real time.
3 Q. Was that being done, to your knowledge, while the car was
4 traveling on November 10th?
5 A. I believe it was, yes.
6 Q. And, in fact, was the movements of the car watched every
7 single day that the device was on the vehicle?
8 A. I believe it was, yes.
9 Q. Are you aware if there were any other tracking-type devices
10 that were installed on this vehicle prior to November 6th?
11 A. No. I am not aware of any other devices.
12 Q. Or any tracking devices on any vehicles associated with
13 vehicles that Mr. Bell was traveling in?
14 A. No.
15 Q. In addition to watching the movements of the car, was there
16 any way that your agency, or agencies working with your agency,
17 were able to confirm that Mr. Bell was in fact in the vehicle?
18 A. No. Not -- not viewing this, no.
19 Q. How about independently? You indicated that there was a
20 traffic stop.
21 A. Correct.
22 Q. Was that for the purpose of determining that Mr. Bell was in
23 fact in the car?
24 A. I believe so, yes.
25 Q. And was there any -- were there any vehicles following Mr.
378
1 Bell?
2 A. Not to my knowledge.
3 MR. LEEN: One second.
4 THE COURT: Uh-huh.
5 Q. (By Mr. Leen) Just a few other questions, sir.
6 You indicated that your agency or people working with your
7 agency were aware of the movements of this vehicle during the
8 period of time from November 6 until approximately Thanksgiving
9 when the vehic- -- when the device was removed.
10 A. That is correct.
11 Q. And was that around-the-clock surveillance of the vehicle?
12 A. Yes, you could say it was around the clock.
13 Q. Was there any way in which you were alerted when the vehicle
14 would move so you actually didn't have to watch the screen at
15 all times?
16 A. Yes, there -- there is -- there is a device built into it
17 that would --
18 Q. Sort of warns you that the vehicle's moved more than a few
19 feet or something?
20 A. That is correct.
21 MR. LEEN: Thank you. No further questions.
22 THE COURT: Redirect.
23 MR. LONDON: Very briefly.
24 REDIRECT EXAMINATION
25 BY MR. LONDON:
379
1 Q. Have you gone since out to the Groener residence to check
2 the precise location on the property of the coordinates that
3 this program reports for the location of the car?
4 A. Yes, sir, I have.
5 Q. And where on that residence did the car appear to have been
6 for those ten minutes?
7 A. It appeared --
8 Q. On the property.
9 A. In the driveway right along the southeast, 14135 Southeast
10 Clackamas River Drive.
11 Q. When you say in the driveway, you mean firmly on the
12 property, or out, out by the road?
13 A. Judging on my readings I was getting, it was on the
14 property.
15 THE COURT: Recross.
16 MR. LEEN: Thank you.
17 RECROSS-EXAMINATION
18 BY MR. LEEN:
19 Q. Agent Meyer, at any time that you were tracking the vehicle
20 between November 6th and Thanksgiving when the tracking device
21 was removed, did the vehicle ever go to the actual residence of
22 Special Agent McNall?
23 MR. LONDON: Objection.
24 A. I don't know.
25 THE COURT: What's the question?
380
1 MR. LEEN: I say, at any time between November 6th and
2 when the tracking device was removed, did the vehicle ever go to
3 the actual residence of Special Agent McNall?
4 MR. LONDON: The objection, Your Honor, is that,
5 frankly, whether it did or didn't is irrelevant. If he were to
6 answer that in the affirmative it might, it might yield
7 information about where Agent McNall actually lives, and we do
8 not want that revealed.
9 MR. LEEN: Well, Mr. Bell obviously would know it if he
10 went there.
11 THE COURT: Well, just a moment. Just a moment.
12 I will sustain the objection.
13 Q. (By Mr. Leen) At any time did -- when you tracked the --
14 Mr. Bell's vehicle, did it go to any other residences in Oregon?
15 A. I'm sure it -- it must have gone to some other residences.
16 I'm not aware of which residences.
17 Q. Did you see it go into Oregon on other days?
18 A. No, I did not.
19 Q. So that's just an assumption?
20 A. That's correct.
21 Q. Do you have any knowledge, other than this particular
22 tracking on November 10th, that the vehicle crossed over the
23 Columbia River into Oregon?
24 A. I do not recall any other.
25 MR. LEEN: Thank you very much.
381
1 THE COURT: The witness may be excused.
2 (Witness excused.)
3 THE COURT: Next witness
4 KEVIN LAYNG, PLAINTIFF'S WITNESS, SWORN
5 THE CLERK: Please be seated.
6 Please state your full name and spell your last name.
7 THE WITNESS: Kevin Layng. L-a-y-n-g.
8 DIRECT EXAMINATION
9 BY MR. LONDON:
10 Q. Mr. Layng, can you begin, please, by just telling us how you
11 are employed?
12 A. I'm a patrol sergeant with the Clackamas County Sheriff's
13 Office.
14 Q. Were you on duty a little bit after midnight on the morning
15 of November 10th of last year?
16 A. Yes, I was.
17 Q. At that point, did you have opportunity, or around that
18 time, to have any contact with anybody that you see here in the
19 courtroom today?
20 A. Yes.
21 Q. With whom was that contact made?
22 A. That was with Mr. James Bell, who is seated to my left.
23 Q. All right. How did that contact come about?
24 THE COURT: Just a moment. Can you do better than
25 that, counsel?
382
1 MR. LONDON: Yes.
2 Q. (By Mr. London) I'm going to ask you if you are identifying
3 defendant here seated at counsel table in the light blue suit?
4 A. Yes, I am.
5 MR. LONDON: The record will reflect the defendant has
6 been identified.
7 Q. (By Mr. London) Can you please tell us now how you had
8 opportunity to come into contact --
9 THE COURT: Just a moment. The exhibit might be in one
10 of the juror's way.
11 Q. (By Mr. London) May I ask you -- do you want me to reask
12 you the question?
13 THE COURT: Go ahead.
14 A. I'm okay.
15 Q. (By Mr. London) Okay.
16 A. I was in routine patrol. I work in an unmarked patrol car,
17 and I work from 4:00 p.m. until 2:00 in the morning. About
18 12:52 a.m. I received a message from our dispatch that Special
19 Agent Jeff Gordon was asking for us to check the area in the
20 14000 block of Clackamas River Drive, which is in central
21 Clackamas County, for a person that they were conducting
22 surveillance on that may have been en route to the home of a,
23 either an ATF agent or the relative of an ATF agent.
24 About 12 minutes after I received the message to conduct
25 this area check, I -- I was on Clackamas River Drive, about a
383
1 mile east of the address we were going to check, and I saw the
2 car that was described to me as belonging to Mr. Bell pass by
3 heading eastbound as I headed westbound. That was the only
4 other car I saw on that roadway. It's fairly rural in that
5 area, there's not much traffic, so it was easy to spot this car
6 as it came by me, and I confirmed that that was the license
7 plate that was given to me in the information from dispatch.
8 Q. Do you recall what the make of the car was?
9 A. Yes. It was a Nissan Maxima.
10 Q. Color?
11 A. Cream or yellow color.
12 Q. Okay. Continue. What happened after you saw the car go by?
13 A. I immediately told our dispatch center that I had seen the
14 car pass by me. I turned around and followed it. As I followed
15 it --
16 Q. Let me stop you just for a second. What direction was the
17 car going at this point?
18 A. The car was eastbound.
19 Q. Would that be heading back towards the freeway then?
20 A. No. In -- not directly, no. We ended up making several
21 turns. It took us back towards the freeway, but --
22 Q. Continue.
23 A. As the car headed eastbound away from the 14000 block, I
24 turned around and I told my dispatch center that I was following
25 the car and I asked them to confirm the license plate that they
384
1 had been given, which they did. It was the same Washington
2 plate on the car that I was following that I had received in the
3 initial information. So I had two other cars in -- routine
4 patrol cars there in the area, Steve Shelley and Jeff Smith, go
5 to the house, the address that was given to us, and check the
6 residence to make sure they were okay while I just continued to
7 follow this car. By the time they checked the house and told me
8 the residents were okay, we were about -- I had followed the car
9 for about six minutes, and three to four miles away from the
10 spot where I originally stopped it.
11 In that amount of --
12 Q. I'm sorry, you say "stopped" it. Do you mean spotted it,
13 three or four miles from where --
14 A. Correct. Yes.
15 Q. Continue.
16 A. Part of the information that I had received from Agent
17 Gordon was that Mr. Bell was supposed to be the driver of this
18 car and that he had -- was known to be in possession of chemical
19 agents or nerve agents and he could possibly be dangerous. We
20 were also -- I was also told through dispatch, I hadn't talked
21 to Deputy -- I'm sorry -- Agent Gordon in person yet, but I was
22 told by dispatch that they wanted this person stopped and
23 detained and that someone would come down to contact him. One
24 of the federal agents would come down and contact him.
25 While I followed Mr. Bell's car, within about a half mile of
385
1 the location where I finally stopped him, he made a couple of
2 turns as the road wound through a residential area, and at two
3 different corners I saw his car cross over the center line of
4 the roadway by about a foot, so I also had some local
5 infraction, reason to stop the car, which I did on 122nd Avenue
6 near Sunnyside Road in Clackamas.
7 MR. LONDON: I would like to ask that the image be
8 published for the witness. The location where the tracking
9 device stops.
10 Q. (By Mr. London) Can you see that in front of you?
11 MR. LONDON: Not at the house. Where the traffic stop
12 is made.
13 This will be a moment.
14 THE COURT: Can the jury see it now? Any member of the
15 jury can't see it?
16 MR. LONDON: It's not on the monitor yet. We will put
17 it up as soon as we have got to where ....
18 All right. Now we can publish it for the jury as well.
19 Q. (By Mr. London) Do you see the image in front of you now?
20 A. Yes, I do.
21 Q. Do you recognize the street and the address?
22 A. Yes, I recognize the street and the cross streets.
23 Q. Does that correspond to where you made the stop of the
24 vehicle?
25 A. Yes. Where the cluster of dots are located, it's actually
386
1 on the west side of the road, where the vehicle was stopped on
2 the east side of the road, but other than that it corresponds
3 for north and south.
4 Q. All right. Now, did you get out of your car?
5 A. Yes, I did.
6 Q. And did you approach the driver?
7 A. I approached the car and had the driver step out.
8 Q. All right. And was Mr. Bell the driver?
9 A. Yes, he was.
10 Q. Was there anybody else in the car?
11 A. No.
12 Q. Did you speak to Mr. Bell?
13 A. Yes, I did.
14 Q. What did you ask him?
15 A. Well, I asked him several things. Initially I asked if
16 there was anything in the car that would be a danger to me or
17 anything on his person, and I patted him down for weapons.
18 Q. All right. And did you see anything in the car?
19 A. At that time, no. I made a couple trips back up and was
20 standing around the car, but at that very moment I didn't see
21 anything in the car as far as weapons.
22 Q. All right. Did -- I think there's a reference in a report
23 of yours to seeing a Thomas Guide map. Is that correct?
24 A. Yes.
25 Q. What page was it opened to?
387
1 A. There was a Thomas Guide map opened and laying on the
2 passenger seat of the car that was opened to a page showing the
3 Clackamas River Drive area on the page facing up.
4 Q. Was there anything else in the car that you recall?
5 A. Yes. There was a metal flashlight similar to a mag light or
6 similar to the lights that we carry, and a yellow notepad with
7 some notes scribbled on the face of it.
8 Q. All right.
9 MR. LONDON: Will you show the witness Exhibit 220.
10 Q. (By Mr. London) All right, can you look to the notebooks to
11 your right and find the binder that corresponds, that would have
12 Exhibit 220 in it, and look at that exhibit, please.
13 A. 220?
14 Q. Two two zero.
15 A. Okay. Exhibit 220 is a picture from the rear of Mr. Bell's
16 vehicle. The vehicle I stopped him in that evening.
17 Q. All right. Did you take that picture?
18 A. I did not take it. It was one of the other deputies there.
19 MR. LONDON: All right. I'd offer 220.
20 MR. LEEN: One second, Your Honor.
21 No objection.
22 THE COURT: 220 is admitted.
23 (Exhibit No. 220 was admitted.)
24 Q. (By Mr. London) Can you turn to the next one, 221, and look
25 at that, please.
388
1 A. Exhibit 221 is a picture taken from the driver's side window
2 of this vehicle, and visible from there laying on the passenger
3 seat is the notepad, the map, and the flashlight I described
4 from the evening of the stop.
5 Q. Is that the Thomas Guide underneath the pad?
6 A. Yes.
7 Q. And the flashlight. All right.
8 MR. LONDON: We offer 221.
9 MR. LEEN: No objection.
10 THE COURT: 221 is admitted.
11 (Exhibit No. 221 was admitted.)
12 MR. LONDON: And that can be published. And 220 can be
13 published.
14 Q. (By Mr. London) Did you ask Mr. Bell if he had been out at
15 the Groener residence on South Clackamas Drive?
16 A. Yes.
17 Q. What did he say?
18 A. When I -- I didn't know specifically the name Groener. I
19 asked him if he had been at that -- at an address on Clackamas
20 River Drive, and he wouldn't answer any of my questions. He
21 would -- when I asked him a question, he would answer that with
22 a question. He seemed to be fishing for information from me.
23 Q. What kind of information from you?
24 A. At first he said that it was curious that it would take
25 three or four patrol cars to stop him on the roadway; asked why
389
1 I was really stopping him. When I asked him what -- if he had
2 been out on Clackamas River Drive, he asked me why I would think
3 he was out on Clackamas River Drive and who I had been talking
4 to, and that's just how the conversation went.
5 Q. Was that pretty much the end of your contact with him that
6 evening?
7 A. Yes, at the traffic stop.
8 MR. LONDON: Thank you. No further questions.
9 THE COURT: Cross-examination.
10 CROSS-EXAMINATION
11 BY MR. LEEN:
12 Q. Good afternoon, Officer Layng.
13 A. Good afternoon.
14 Q. Officer Layng, did you find any weapons on Mr. Bell when you
15 patted him down?
16 A. No, I did not.
17 Q. Did you see any chemical agents or any nerve agents?
18 A. No.
19 Q. Approximately how long was Mr. Bell detained?
20 A. Probably 30 to 40 minutes.
21 Q. Was he issued any citations?
22 A. No.
23 Q. Did any federal agents come to the scene of the stop?
24 A. Agent Mike McNall.
25 Q. Did he speak to you at the scene of the stop?
390
1 A. Briefly, yes.
2 Q. What did the two of you talk about?
3 A. I don't recall exactly, but he was concerned about the
4 address on Clackamas River Drive.
5 Q. And then Mr. Bell was allowed to leave?
6 A. Yes.
7 Q. Was Mr. Bell handcuffed during this period of time?
8 A. Yes.
9 Q. Did you ever pull your weapon out?
10 A. No.
11 Q. Or did any of the other officers?
12 A. No.
13 MR. LEEN: Thank you.
14 THE COURT: Redirect.
15 MR. LONDON: No, Your Honor.
16 THE COURT: You may step down.
17 (Witness excused.)
18 THE COURT: Next.
19 RANDY R. OXFORD, PLAINTIFF'S WITNESS, SWORN
20 THE CLERK: Please be seated.
21 Please state your full name and spell your last name.
22 THE WITNESS: My name is Randy Ross Oxford.
23 O-x-f-o-r-d.
24 DIRECT EXAMINATION
25 BY MR. LONDON:
391
1 Q. Deputy, can you tell us how you are employed, please?
2 A. I'm a deputy sheriff assigned to the criminal division of
3 the Clackamas County Sheriff's Office, and as part of those
4 duties, I'm a hazardous materials technician.
5 Q. Were you on duty in the early morning of November 10th,
6 2000, down in Clackamas County?
7 A. I was called from my home and summoned to that address.
8 Q. When you say that address, I didn't mention one, but I think
9 you are anticipating, probably. I was going to ask you if you
10 then had occasion in the course of your duties to respond to an
11 address in Clackamas County, on South Clackamas Drive, 14135
12 specifically?
13 A. Yes, sir, I did.
14 Q. Why were you called out to that address?
15 A. As part of my job as a hazardous materials technician, the
16 deputies that were on the scene at that location had information
17 that there were notes placed on two vehicles that might be
18 chemically contaminated.
19 Q. So notes had been found on vehicles at the address by other
20 deputies, is that correct?
21 A. That's correct.
22 Q. And they called you because of your expertise or your
23 training in dealing with things that have been potentially --
24 that are chemically dangerous?
25 A. Yes, sir.
392
1 Q. All right. So what did you do?
2 A. At that point the two deputies that were at the location
3 were Deputy Shelley and Deputy Miller, and at that point Deputy
4 Miller directed me to the vehicles. One was in a carport that
5 was attached to a residence, and then behind that residence is
6 another residence and there was another vehicle that was parked
7 out in the open air, kind of in a driveway-type area. Each of
8 those vehicles had a paper note under the windshield of the
9 vehicle.
10 At that point, I --
11 Q. I want to stop you for a moment.
12 A. I'm sorry.
13 Q. Please look at the image that's on the screen in front of
14 you. That's an aerial photo of that address. Can you be
15 specific about where this carport was, where these vehicles
16 were, where the note was found on the vehicle that was in the
17 carport, and so on.
18 A. I'm not sure exactly how I do that, sir.
19 Q. All right.
20 A. You just want me to physically describe it?
21 Q. If you can point out where the carport is, I will try and
22 point to it with this corresponding pointer here.
23 A. Okay. The carport is located to the right of the larger
24 residence.
25 Q. All right. Is that where the arrow is now pointing?
393
1 A. Yes.
2 Q. And you saw one of the notes on a windshield of a car that
3 was parked in that carport?
4 A. Yes.
5 Q. Okay. Continue.
6 A. And then if you come out of that carport and down the
7 roadway to the left of the screen, there's a little driving area
8 that you can see there, and that's where the second vehicle was
9 parked with the second note.
10 Q. All right. There's an exhibit binder next to you there, and
11 I would like you -- there are several. Please find the one that
12 would have Exhibits 226 and 227 in it. Have a look at those
13 exhibits, if you would.
14 Actually, what I would like you to look at is 226A and
15 227A.
16 A. Okay.
17 Q. Do you recognize those?
18 A. To the best of my recollection, on 226 was the original note
19 that appears somewhat changed.
20 Q. Yes. And the testimony has been that a chemical solution
21 was applied to that for the purposes of looking for fingerprints
22 and that 226A was a photocopy before the solution was applied.
23 So looking at 226A, does that appear to be one of the notes or a
24 copy of one of the notes that you found on the windshield before
25 any chemical solution would have been applied for purposes of
394
1 fingerprints?
2 A. Yes.
3 Q. All right. The same with 227.
4 A. Yes, sir.
5 Q. All right.
6 MR. LONDON: I offer 226.
7 MR. LEEN: No objection.
8 THE COURT: It's admitted.
9 (Exhibit No. 226 was admitted.)
10 MR. LONDON: 227.
11 MR. LEEN: No objection.
12 THE COURT: Admitted.
13 (Exhibit No. 227 was admitted.)
14 MR. LONDON: 226A.
15 MR. LEEN: No objection.
16 THE COURT: It's admitted.
17 (Exhibit No. 226A was admitted.)
18 MR. LONDON: And 227A.
19 MR. LEEN: No objection.
20 THE COURT: It's admitted.
21 (Exhibit No. 227A was admitted.)
22 Q. (By Mr. London) Would you please look at Exhibit 222. Do
23 you recognize that?
24 A. Yes.
25 Q. What is it?
395
1 A. This was the black Volkswagen that was parked to the left of
2 the main residence where the carport was with the note on the
3 windshield.
4 MR. LONDON: We offer 222.
5 MR. LEEN: No objection.
6 THE COURT: It's admitted.
7 (Exhibit No. 222 was admitted.)
8 MR. LONDON: Please publish.
9 Q. (By Mr. London) Could you do the same, please, with 223.
10 A. That's the same vehicle from a further distance.
11 MR. LONDON: We offer 223.
12 THE COURT: It's admitted.
13 (Exhibit No. 223 was admitted.)
14 Q. (By Mr. London) 224, please.
15 A. 224 is the vehicle that was in the carport with the note on
16 the windshield as I first observed it.
17 MR. LONDON: We offer 224.
18 THE COURT: It's admitted.
19 (Exhibit No. 224 was admitted.)
20 MR. LEEN: No objection.
21 MR. LONDON: Publish that.
22 Q. (By Mr. London) Is that vehicle facing the wall of the
23 carport or is it parked in backwards?
24 A. It's facing the wall of the carport.
25 Q. Please look at 225.
396
1 A. That's the same vehicle in the carport, just at a closer
2 shot.
3 Q. Now, is that the form that you found the note in? Or was
4 the note -- had the note been bagged by somebody?
5 A. The note had been bagged.
6 Q. But then left at the location where it had been found?
7 A. Yes.
8 Q. All right.
9 MR. LONDON: I publish 225 -- I offer 225.
10 MR. LEEN: May I voir dire on it?
11 THE COURT: Yes
12 VOIR DIRE EXAMINATION
13 BY MR. LEEN:
14 Q. I was unclear of your answer. Was it bagged by the police
15 or was it found in the baggie when it was originally observed by
16 you?
17 A. It was in the bag when I originally found it.
18 Q. Okay, thank you.
19 And to your knowledge, you were told that that was the
20 condition that it was first observed?
21 A. I don't recall that, sir.
22 Q. I'm trying to figure out, do you know if the police put the
23 baggie there or the person who left it there put the baggie on
24 the car?
25 A. I don't really recall, sir.
397
1 MR. LEEN: No objection.
2 THE COURT: 225 is admitted.
3 (Exhibit No. 225 was admitted.)
4 DIRECT EXAMINATION (Continuing)
5 BY Mr. London.
6 Q. Let me ask you this. Did you examine the bag?
7 A. Pardon me, sir?
8 Q. Did you examine the bag?
9 A. The bag?
10 Q. Yes. Did you examine the note in the bag?
11 A. Yes.
12 Q. All right. Was that a police evidence bag or was that just
13 a regular Ziploc bag?
14 A. It's a Ziploc bag.
15 MR. LONDON: I offer 225, and we ask to publish 225.
16 THE COURT: 225 is in.
17 Go ahead.
18 Q. (By Mr. London) Do you have any knowledge of whether that
19 bag was on the note when it had been placed on the windshield or
20 whether law enforcement who responded to the scene put it in the
21 bag?
22 A. I don't recall that, sir.
23 Q. All right. Fair enough.
24 What did you do with these notes that you recovered?
25 A. I placed them into a coffee can, and as a result of it, the
398
1 coffee can was sealed and it was transported to the Clackamas
2 County hazardous material locker, evidence locker, and it was
3 placed there pending further investigation.
4 Q. Now, you testified that you came to the scene because you
5 had experience with things that might pose a chemical danger.
6 Did these notes in any way turn out to pose a chemical danger,
7 to your knowledge?
8 A. I do not know, sir.
9 MR. LONDON: Nothing further.
10 THE COURT: Cross-examination.
11 MR. LEEN: No question.
12 THE COURT: The witness may be excused.
13 (Witness excused.)
14 THE COURT: Next witness.
15 MR. LONDON: Call John Branton
16 JOHN BRANTON, PLAINTIFF'S WITNESS, SWORN
17 THE CLERK: Please be seated.
18 Please state your full name and spell your last name.
19 THE WITNESS: John Branton. It's B-r-a-n-t-o-n.
20 DIRECT EXAMINATION
21 BY MR. LONDON:
22 Q. Mr. Branton, good afternoon. Can you begin, please, just by
23 telling us how you are employed?
24 A. I work for the Columbian newspaper as the police reporter,
25 and I've done that for about 15 years, and I've written quite a
399
1 few stories about Jim Bell.
2 Q. Have you met Mr. Bell before?
3 A. Yes.
4 Q. Not just interviewed him on the telephone?
5 A. No. I believe -- I've talked to him in person as well.
6 Q. I would like you to look at Exhibit 226A, which is going to
7 appear on your screen. If it's not legible to you, then I will
8 actually have you look at the actual one in the binder.
9 Can you see that on your screen well enough?
10 Can you read it?
11 A. Me?
12 Q. Yes.
13 A. Yes. It's sideways, but, yeah, I can see it says -- yeah, I
14 can read it.
15 MR. LONDON: All right. I would like to publish this
16 for the jury at this point.
17 THE COURT: Go ahead.
18 MR. LONDON: Everybody will have to crane your necks a
19 bit.
20 Q. (By Mr. London) If you can just read that for us, I would
21 appreciate it.
22 A. "Please call (Vancouver) Columbian Newspaper reporter John
23 Branton at 1-360-759-8012. Very important." It's a small slip
24 of paper with that written on it.
25 Q. All right. Did you write that?
400
1 A. No.
2 Q. Did you place that on the windshield of a car at an address
3 on South Clackamas Drive on the -- early in the morning of
4 November 10 --
5 A. No.
6 Q. -- 2000. Do you have any idea why that note was placed on
7 those windshields?
8 A. I do now.
9 Q. Had you been engaged in any interviews with Mr. Bell at
10 about that time?
11 A. Yes. We met once in a restaurant, I think we talked on the
12 phone a couple of times, and he also came to the newspaper and
13 we talked out in the lobby of the newspaper. So I talked to him
14 about three or four times during that time.
15 Q. Okay. And, in fact, did you interview him around November
16 6th and 8th for an article that you wrote that actually appeared
17 on November 9th?
18 A. Yes.
19 Q. All right. Would you look at Exhibit 214, please. It will
20 be in a binder to your right.
21 THE WITNESS: I'm sorry.
22 THE CLERK: That's okay. It's in this book right
23 here. 214.
24 A. Exhibit what, please?
25 Q. (By Mr. London) Two one four; 214.
401
1 A. Oh, are you talking about my story?
2 Q. Yes.
3 A. Okay, I've got it.
4 Q. Do you recognize that? Is that the article you wrote and
5 published on November 9th?
6 A. Yes.
7 MR. LONDON: I offer 214.
8 MR. LEEN: I object, Your Honor. There's a -- may we
9 take something up sidebar, Your Honor?
10 MR. LONDON: Actually, Your Honor, I don't need to
11 offer that exhibit if that will solve the problem.
12 MR. LEEN: That will solve the problem.
13 MR. LONDON: All right.
14 Q. (Mr. London) I just want to ask you about some things that
15 appear in that article.
16 A. Okay.
17 Q. In this article there's a statement which you, as a
18 reporter, attribute to Mr. Bell in which Mr. Bell admits using
19 Oregon Department of Motor Vehicle material to trace cars and
20 indicating that he had gone to the homes of government agents
21 and had taken pictures. Is that -- do those statements
22 attributed to Mr. Bell accurately reflect something he told you
23 in the course of the interviews?
24 A. Yes. I believe he told me that on November 8th when we
25 talked in the lobby of the Columbian, and basically what he said
402
1 was, in November 1998 some -- he wrote down the license numbers
2 of some cars that he thought were following him. And he thought
3 that they were government agents doing some kind of improper
4 surveillance, and so he obtained some Oregon motor vehicle
5 licenses -- or records, ran those license numbers, got the name
6 and address of the people, and he went to their home and he said
7 he was basically taking pictures and things like that.
8 MR. LONDON: Thank you. Nothing further of this
9 witness.
10 THE COURT: Cross-examination.
11 MR. LEEN: Thank you, Your Honor. One second.
12 CROSS-EXAMINATION
13 BY MR. LEEN:
14 Q. Good afternoon, Mr. Branton.
15 A. Good afternoon.
16 Q. Mr. Branton, you say that you, over the past several years,
17 interviewed Mr. Bell?
18 A. Yes, several times.
19 Q. And has he told you of his belief in certain government
20 conspiracies and government illegalities?
21 A. Yes, he has.
22 Q. And did he tell you that he felt that they were directed
23 toward him?
24 A. Yes.
25 Q. When did he start telling you about these beliefs that he
403
1 had?
2 A. I would want to say -- actually, years ago, but especially
3 beginning about April 2000. And he told me, as the Columbian
4 reporter, that he was going to be gathering materials to prove
5 that the government had acted improperly in his case.
6 Q. So he said that he was -- he was engaging in research to
7 actually prove what many people would say were delusions or
8 figments of his imagination?
9 A. Well, I haven't characterized them as that, but those
10 were -- those were the things that he said he believed, and he
11 said he was trying to gather proof that those occurred.
12 Q. And did he tell you how he was trying to gather proof?
13 Either generally or specifically.
14 A. Well, he was -- he was basically studying court records and,
15 like I said before, he was tracing back the license numbers of
16 some people that he thought followed him. I'm not too sure what
17 all he was doing, but he made it clear that he was trying to
18 prove some kind of improper activity on the part of the
19 government.
20 Q. Do you ever do any investigative reporting?
21 A. Very little because I'm basically a beat reporter who covers
22 the police in a county of 350,000 people, and I'm the only
23 police reporter, so.
24 Q. Do you do research before you write a story?
25 A. Yes.
404
1 Q. Try to verify certain facts before you publish something as
2 newsworthy?
3 MR. LONDON: Your Honor, I'm going to object.
4 THE COURT: Sustain the objection.
5 Q. (By Mr. Leen) In the article of November 9th that counsel
6 made reference to, did Mr. Bell tell you -- and I'm reading,
7 because it's in quotes, "They are after me because I'm getting
8 way too close"?
9 A. Yes.
10 Q. And his belief was that they -- that the government wanted
11 to find out how close he was to proving the theories that he had
12 told you about?
13 A. That's what he meant by saying that, yes.
14 Q. Did Mr. Bell also tell you that he has threatened no one?
15 A. Yes. I asked Jim if he -- if he planned to harm anyone or
16 if he had threatened anyone, and he said no.
17 Q. Did he say he had no plans to hurt anyone?
18 A. Yes. He said he had no plans to hurt anyone.
19 Q. Did he tell you that federal agents, they believe that "the
20 very fact that I know where they live constitutes a threat"?
21 A. Yes. He said that.
22 Q. And he told you that he felt that the government hated
23 them -- hated him?
24 A. Yes.
25 Q. And that he believed that the government agents were
405
1 crooked?
2 A. That's right.
3 MR. LEEN: Thank you very much.
4 THE COURT: Redirect.
5 REDIRECT EXAMINATION
6 BY MR. LONDON:
7 Q. Will you turn to Exhibit 143, please.
8 THE WITNESS: Thank you. 143?
9 THE CLERK: Uh-huh.
10 Q. (By Mr. London) Do you recognize that? Is that an email
11 that you received from Mr. Bell?
12 A. Yes.
13 Q. And does it reference doing a road trip that would worry the
14 feds?
15 A. It says, "I did a road trip a couple of days ago which
16 probably worries the Feds," and he mentions that he wanted to
17 ask McNall about Ryan Thomas Lund.
18 Q. You did actually receive this at the time?
19 A. Yes.
20 MR. LONDON: Thanks. Nothing further.
21 THE COURT: Recross.
22 MR. LEEN: Thank you.
23 RECROSS-EXAMINATION
24 BY MR. LEEN:
25 Q. Referring to that same email, sir.
406
1 A. Oh.
2 Q. If you don't mind. 143.
3 A. Okay. Got it.
4 Q. The subject matter is, Re: Harry Browne in Portland,
5 11/1/00. Who's Harry Browne, do you know?
6 A. No. You know what this is -- I don't know who Harry Browne
7 is. This is -- this message contains some -- I believe it's
8 some of Jim's earlier messages to someone else. I don't know
9 who Harry Browne is.
10 Q. So if he would email you and there would be a header or a
11 subject matter, would you just type a response and not change
12 the subject header?
13 A. I don't know if I typed a response.
14 Q. And when was the first time he started to talk to you about
15 the fact that he believes that he had been assaulted by Ryan
16 Thomas Lund at the direction of government agents?
17 A. I would say about April of 2000 is when I started hearing
18 that pretty regularly from Jim.
19 Q. Okay. Was that -- did you understand that that was the
20 reason why he was doing his investigation?
21 A. Yes. Do you want me to explain what the idea of it was
22 or --
23 Q. Yes, sir.
24 A. Jim -- Ryan Thomas Lund is the person who Jim says assaulted
25 him when he was in one of his previous cases.
407
1 Q. In the Federal Detention Center?
2 A. Yeah. And he thought that Ryan Lund had been provided --
3 provoked to do that by the government in that they were trying
4 to force him into making a guilty plea. So that's -- that's who
5 Ryan Thomas Lund is, and I don't know if any of that is true or
6 not.
7 Q. All right. And did he tell you that this was the theory
8 that he was trying to prove by his activities?
9 A. That was one of his theories, yes.
10 Q. Is that what he meant when he said, I'm getting too close,
11 or they think I'm getting too close?
12 A. Well, Jim had a number of objections that he had made about
13 the government, and Ryan Thomas Lund was just one of several.
14 So I don't know -- I have no way of knowing which of those he
15 was talking about in this case.
16 Q. And you spoke -- as I say, you said you've spoken to him
17 numerous times.
18 A. Yes.
19 Q. Was it your impression that he believed these things to be
20 true?
21 A. Yes.
22 MR. LEEN: Thank you.
23 THE COURT: The witness may be excused?
24 MR. LONDON: I have one or two questions.
25 THE COURT: All right. Are you recalling him?
408
1 MR. LONDON: Yes. I'm not recalling him, just
2 redirect, Your Honor.
3 THE COURT: All right, redirect.
4 REDIRECT EXAMINATION
5 BY MR. LONDON:
6 Q. Did Mr. Bell ever happen to mention to you he actually
7 entered his guilty plea in 1997, well before Ryan Lund assaulted
8 him in Federal Detention Center in SeaTac?
9 A. No. And I don't know whether that's true or not. I don't
10 know the timing on that.
11 Q. I'm just asking you if he ever admitted that to you?
12 A. No, he never said that.
13 Q. Did he ever explain to you how showing up at the home
14 address of Mike McNall would help him confirm this theory of his
15 in any way?
16 A. No. And I have to admit, I don't -- I didn't understand
17 what his point was in going over there to someone's home.
18 Q. You --
19 A. I asked him if he meant to hurt someone, and he said no.
20 I'm not sure what his point was.
21 Q. Did you once ask him, in fact, if he was a terrorist? Did
22 you ask him to acknowledge whether or not he was a terrorist?
23 Do you recall an email exchange you might have had with him
24 where you said, "Are you a terrorist?" and he refused to answer
25 that either way?
409
1 A. I don't recall that, but I have asked him -- I don't recall
2 that exact wording, but I have asked him questions like that in
3 the past, you know, just trying to figure out, you know, are
4 you -- you know, are you serious about hurting someone or are
5 you just talking, you know. And I've asked him that kind of
6 question many times.
7 Q. And what kind of answers has he given you?
8 A. Well, it's always seemed to me that he was just talking.
9 Q. Now, did he ever explain to you how showing up at somebody's
10 house would aid this investigation of this theory that he had?
11 A. No. And I didn't understand it -- I didn't understand that,
12 either.
13 Q. Now, you met with him, I believe you said, at the Columbian,
14 correct, at least once for the purpose of doing an interview?
15 A. November 8th we met at the Columbian.
16 Q. So he knew how to find you for the purpose of that interview
17 at your building, at your professional location, your office,
18 correct?
19 A. Yes.
20 Q. He didn't show up at your house for the purpose of being
21 interviewed, did he?
22 A. No.
23 MR. LONDON: All right. Thank you.
24 THE COURT: Witness may be excused?
25 MR. LEEN: Yes, Your Honor.
410
1 MR. LONDON: No. One moment, Your Honor. I have one
2 matter to take up.
3 THE COURT: Just a minute.
4 MR. LONDON: It's going to take but one second.
5 Q. (Mr. London) I would like to put up an exhibit for you to
6 look at.
7 Can you see that email that's on your screen?
8 A. Yes.
9 MR. LEEN: I'm sorry, what exhibit number?
10 MR. LONDON: Scroll to the top.
11 Q. (By Mr. London) Do you see the header information on this
12 email?
13 A. Yes.
14 Q. All right. Does this appear to be an email exchange between
15 you and Mr. Bell?
16 A. Yes.
17 Q. All right. Do you see the caret information that indicates
18 who's talking? We call it a caret. It's the little, the little
19 greater than sign. Do you see where it says, "Hey, Jim."
20 A. Yes.
21 Q. "I take issue with one statement you made." Is that
22 something that you wrote to him?
23 A. Yes.
24 Q. Made to him?
25 A. Yes.
411
1 Q. All right. I would like to scrolling down.
2 All right. Do you see that point five there, number five,
3 with the caret?
4 A. Yes.
5 Q. All right. The text that's offset by the caret, that's you
6 asking him questions, and then the text that is not offset by a
7 caret, that's his answer, correct?
8 A. That's right.
9 Q. Okay. Please read the section that you wrote, "Are you so
10 angry."
11 A. Okay. I wrote to Jim, "Are you so angry that you are going
12 to hurt someone? Or are you a nonviolent person who will
13 confine himself to speaking out against the government?"
14 Q. And what did he answer?
15 A. His response was, "No comment for now. Judge for yourself
16 when you see me."
17 Q. All right. "No comment for now." Does that -- does that
18 accurately reflect what you remember in your email exchange with
19 him?
20 A. Yes.
21 MR. LONDON: Thanks.
22 THE COURT: Is that it?
23 MR. LONDON: Yes.
24 THE COURT: The witness may be excused?
25 MR. LEEN: No further questions.
412
1 THE COURT: The witness may be excused.
2 THE WITNESS: Thank you.
3 (Witness excused.)
4 THE COURT: Next.
5 MR. LONDON: Your Honor, this next witness will
6 probably take a bit of time. I don't know when you want to take
7 the recess.
8 THE COURT: Take a 15-minutes recess. Do not discuss
9 the case among yourselves or with anyone else during the
10 recess. Please go to the jury room.
11 (Jury excused; 3:47 p.m.)
12 THE COURT: Do you have anything to take up?
13 MR. LONDON: No, Your Honor.
14 THE COURT: Court's in recess.
15 (Recessed at 2:48 p.m.)
16 (Jury not present.)
17 THE COURT: Anything to take up before the jury?
18 MR. LONDON: No.
19 MR. LEEN: No, Your Honor.
20 THE COURT: Bring the jury.
21 (Jury present; 3:15 p.m.)
22 THE COURT: All right, the jury has returned.
23 Next witness.
24 MR. LONDON: Call Mike McNall.
25 MICHAEL MCNALL, PLAINTIFF'S WITNESS, SWORN
413
1 THE CLERK: Please be seated.
2 Please state your full name and spell your last name.
3 THE WITNESS: It's Michael McNall. M-c-N-a-l-l.
4 DIRECT EXAMINATION
5 BY MR. LONDON:
6 Q. Sir, how are you employed?
7 A. I'm a special agent with the Bureau of Alcohol, Tobacco, and
8 Firearms.
9 Q. And how long have you been employed in that capacity?
10 A. Eleven-and-a-half years.
11 Q. Where do you work?
12 A. Portland, Oregon.
13 Q. And what is the address of your job? In other words, what's
14 your work address?
15 A. 1500 Southwest First Avenue, Room 680, Portland, Oregon.
16 Q. And is that address publicly available? Can anyone look up
17 ATF in the phone book?
18 A. Yes, they can.
19 Q. All right. So if I wanted to go speak to you about any
20 matter, I could look up your work address in a Portland phone
21 directory and go to that address and ask for you?
22 A. That's correct.
23 Q. Prior to this case, have you ever heard or had you ever
24 heard of James Dalton Bell?
25 A. No.
414
1 Q. Did you at one point live at 14135 South Clackamas River
2 Drive in Oregon City?
3 A. I did.
4 Q. Do you know the current occupant of that residence, Chris
5 Groener?
6 A. I do.
7 Q. Do you remember Mr. Groener calling you in October,
8 specifically October 23rd of 2000, to tell you that somebody had
9 been to the residence looking for you?
10 A. Yes, I do remember.
11 Q. What do you remember about that call?
12 A. Chris called me and he explained that there had been an
13 individual there. He described this individual. He told me
14 that the individual was asking questions about me and wanted to
15 know if I lived there or where I lived.
16 Q. And did he tell you the individual's name?
17 A. He did.
18 Q. And what name did he tell you?
19 A. He told me Jim Bell.
20 Q. Did it mean anything to you?
21 A. At first it didn't, but after I thought about it for a few
22 minutes, I remembered recently receiving a -- some information
23 from Special Agent Jeff Gordon and the Vancouver Police
24 Department.
25 Q. And what was the information that you had received from PPD
415
1 or Special Agent Gordon about Mr. Bell prior to Chris Groener
2 calling you to say that this guy had been out at your former
3 house?
4 A. About mid September, Special Agent Gordon had contacted me
5 at my office and had informed me my name had been posted over
6 the Internet on some Cypherpunks web page, and it had to do with
7 an individual that I had a case on previously that was
8 completely unrelated to this individual, but he just wanted to
9 give it to me as information that this individual had my name.
10 Q. All right. Now, is the individual you are talking about,
11 you said you had a case on, is that a Ryan Lund?
12 A. That's correct.
13 Q. Were you the principal case agent for ATF in a case that was
14 charged out of this district against a Ryan Lund?
15 A. I was.
16 Q. Was that -- what was Ryan's Lund's offense?
17 A. He was charged in U.S. District Court in Western District of
18 Washington with felon in possession of a firearm.
19 Q. And did you present the case for prosecution to the U.S.
20 Attorney in this district?
21 A. I did.
22 Q. And was that case presented to a prosecutor named Joanne
23 Maida?
24 A. It was.
25 Q. And did Mr. Lund plead guilty to anything, as far as you
416
1 know?
2 A. He did. He pled guilty to felon in possession of a firearm.
3 Q. And was he sentenced?
4 A. He was.
5 Q. As far as you know, did Mr. Lund receive any kind of a break
6 or a deal in his sentence as a quid pro quo for assaulting Mr.
7 Bell at the FDC, at the Federal Detention Center at SeaTac?
8 A. No.
9 Q. Did anyone ever discuss giving Mr. Lund any kind of a deal,
10 as far as you're aware, other than a standard plea bargain?
11 A. No.
12 Q. All right. How long -- did you say you've been a federal
13 agent for ATF for eleven years?
14 A. Yes.
15 Q. All right. And typically, in your experience of the matters
16 that you present for prosecution after you investigate, do most
17 of those matters plead out, as we say, as opposed to go to
18 trial?
19 A. They do.
20 Q. And is it in fact quite typical for cases that are resolved
21 by plea to involve some kind of a plea bargain?
22 A. That's correct.
23 Q. What is a plea bargain, if you will just very briefly
24 describe what it is? What does the government get and what does
25 the defendant get?
417
1 A. The defendant usually gets a reduced sentence of some kind.
2 It's his cooperation, I guess, for pleading guilty, a couple
3 point deduction. The government, I guess, avoids a trial and a
4 lengthy, I guess, process that costs a lot of money.
5 Q. All right. Is it fair to say that quite typically if a
6 defendant saves the government the time and expense and trouble
7 of having to go to trial and bring witnesses in, and so forth,
8 that they are sometimes quite prepared to offer defendants some
9 kind of a break in the disposition of their cases at sentencing?
10 A. Yes.
11 Q. In the form of a recommendation to a judge that a defendant
12 not receive as harsh a penalty as he might otherwise receive?
13 A. That's correct.
14 Q. In your view, do you recall what Mr. Lund was sentenced to?
15 A. I believe Mr. Lund was sentenced to 27 months, but I'm not
16 sure. That was a few years ago.
17 Q. And was that part of a plea bargain, as far as you know?
18 A. That's correct.
19 Q. Can you look at Exhibit 116, please. It's a -- we will put
20 it up on the screen for you.
21 Do you see that email?
22 A. I do.
23 Q. Do you see the reference in there, there's a quotation mark,
24 "Check with Portland BATF agent Mike McNall, who was present on
25 the search, despite the fact that it was not a Federal search
418
1 warrant."
2 AGENT GORDON: 116 or 160?
3 MR. LONDON: I'm sorry, I may be in 115.
4 Q. (Mr. London) I will ask you to look at 115.
5 AGENT GORDON: It is 116?
6 MR. LONDON: No, go to 115.
7 AGENT GORDON: I'm on there now. Sorry.
8 Q. (By Mr. London) I'm just going to ask you to bear with me
9 for a moment.
10 AGENT GORDON: You do want 116.
11 Q. (By Mr. London) Do you see 116, the third page of 116? Do
12 you see the text that says, "Check with Portland BATF agent Mike
13 McNall, who was present on the search, despite the fact that it
14 was not a Federal search warrant. I suspect it was Agent McNall
15 who did the deal with Lund"?
16 A. I do see that.
17 Q. All right. Now, that's been admitted. That's an email that
18 was posted to the Internet on September 15 of 2000. Is that the
19 email, as best as you can remember, that Agent Gordon called you
20 about to say that your name had appeared in one of Mr. Bell's
21 postings to the Internet on the Cypherpunks website?
22 A. I believe this was, or it was one similar to this one.
23 THE COURT: Counsel, the clerk says she doesn't have
24 116.
25 THE CLERK: As admitted.
419
1 THE COURT: As admitted.
2 MR. LONDON: Well, at this point then I offer 116.
3 MR. LEEN: Your Honor, I don't think it's been
4 authenticated yet.
5 Let me, if I might just have a second.
6 MR. LONDON: Your Honor, 116 is the email that's
7 downloaded from the Cypherpunks website. 117 is the exact same
8 thing which --
9 THE COURT: All I'm saying --
10 MR. LEEN: The defendant has no objection to the
11 admission of Exhibit 116, Your Honor.
12 THE COURT: All right. Are you offering 116?
13 MR. LONDON: I am, Your Honor.
14 THE COURT: Now it's admitted.
15 (Exhibit No. 116 was admitted.)
16 MR. LONDON: May I ask the clerk if 117 has been
17 admitted?
18 THE CLERK: Yes, it has.
19 MR. LONDON: Thank you.
20 Q. (By Mr. London) 116 is a version of the email that was
21 downloaded from the Internet, but in fact it was found on the
22 defendant's computer in the form of an outgoing message, Exhibit
23 117. Do you have any idea of what this refers to, in terms of,
24 "I suspect it was agent McNall who did the deal with Lund"?
25 A. No, I don't.
420
1 Q. Did you do a deal with Lund?
2 A. No, I did not.
3 Q. After Lund was arrested and taken into custody and went into
4 the Federal Detention Center at SeaTac, did you ever have any
5 personal contact with him ever again?
6 A. You know, I didn't have any personal contact with Ryan Lund
7 from probably the time I interviewed him during the search
8 warrant that day. I never arrested him again. The Oregon state
9 police arrested him and he was transported. So I never saw Mr.
10 Lund from the day I originally interviewed him.
11 Q. And is it correct that the next you heard of Mr. Lund was
12 when Ms. Maida, the prosecutor, called you and said that he had
13 pled guilty and been sentenced?
14 A. Yes.
15 Q. And is that when you closed out your case file?
16 A. Well, besides a few technical things like get rid of some
17 property, yeah, we closed our file then.
18 Q. All right. Around one o'clock in the morning, November
19 10th, were you contacted because of a visit that Mr. Bell made
20 to your former residence on South Clackamas Drive?
21 A. Yes.
22 Q. How did you happen to be contacted about this?
23 A. I was contacted, I believe, by a treasury agent and they
24 told me that Bell was on Groener's property and that he was
25 currently there.
421
1 Q. All right. And does ATF have a 24-hour dispatch service?
2 A. Yes, we do.
3 Q. And, in fact, were they the ones who notified you that the
4 treasury agents were trying to locate you to warn you about
5 this?
6 A. It might have been, and then I telephoned this other
7 treasury agent. That could have been how it went.
8 Q. When you heard this, what did you do?
9 A. I believe I telephoned my supervisor and then informed him
10 that I was going to go out to that residence.
11 Q. Did you go out there?
12 A. I did.
13 Q. What was the purpose of going out there?
14 A. I wanted to check on my friend Chris and my former
15 landlords.
16 Q. And what did you find when you got there?
17 A. I found some Clackamas County deputies there. They had
18 already been notified and they were presently there.
19 Q. And did you learn that Mr. Bell and his car had actually
20 been stopped a few miles down the road from Groener's house?
21 A. I did.
22 Q. Did you go to see the stop where he was being detained?
23 A. Yes, I did.
24 Q. Did you actually have any contact with him?
25 A. No, I didn't.
422
1 Q. Prior to coming here to court today, have you ever come face
2 to face with James Dalton Bell before?
3 A. No, I have not.
4 Q. What did you do when you got out to the scene of the stop of
5 his vehicle, or the detention of his vehicle out there a few
6 miles from where you used to live?
7 A. I talked with, I believe, the sergeant on that scene. Kind
8 of gave him a background of what was happening in this case, and
9 then was transported back to Groener's residence.
10 Q. All right. Now, have you had an opportunity to be shown,
11 either by Agent Gordon or anybody else, all of the database runs
12 and searches that have shown up either in printout form or taken
13 from Mr. Bell's residence or downloaded from his computer and in
14 what appears to be a determined effort by Mr. Bell to locate
15 your home address?
16 A. I don't know if I've seen them all, but I have seen several
17 that came out of Mr. Bell's house.
18 Q. And how does this make you feel, knowing that you are the
19 object of this effort to find your home address by somebody who
20 you have not ever had any contact with before?
21 A. Well, initially, you know, I -- this is part of being in law
22 enforcement, but as I was told of Mr. Bell's background, you
23 know, this Assassination Politic thing that had come over the
24 web, or he was the alleged author of, you know, this Sarin gas
25 incident, you know, his background in chemistry, his MIT, you
423
1 know, being a graduate of MIT, I became extremely concerned
2 and -- for myself and my family.
3 Q. Did you at any point attempt to get a restraining order in
4 Clackamas County or any county in Oregon against Mr. Bell?
5 A. I did.
6 Q. And what did you do to try to get a restraining order
7 against him after you learned about his efforts to find you?
8 A. Myself, Chris Groener, and the Andrews all met with the
9 police officer and filled out restraining order paperwork. They
10 took that paperwork and said they would serve this, and then
11 they found out that Mr. Bell was a resident of a different state
12 and was currently -- I believe he was incarcerated at that time
13 in Washington, and there were some problems with being able to
14 serve him the paperwork.
15 Q. Did the problems have to do with the fact that police
16 officers in the state of Oregon did not have jurisdiction to
17 serve somebody in the state of Washington?
18 A. I believe that was one of the problems. There was another
19 problem with the fact that I wasn't going to put my home address
20 on the restraining order.
21 Q. The only way you could get the restraining order was to put
22 on your correct current home address?
23 A. I don't know if that's the only way, but that became an
24 issue and became a problem.
25 MR. LONDON: I would like to ask that the agent -- the
424
1 witness be shown page 27 of Exhibit 137, the diary.
2 Q. (By Mr. London) Do you see these handwritten entries in the
3 diary? This is Exhibit 137. It's the 27th page of this
4 notebook. Can you make any of that out?
5 A. Yes, I can.
6 Q. Do you recognize any of the information in there?
7 A. I sure do.
8 Q. What can you tell the jury that you recognize in there?
9 A. Well, I recognize the 14135 South Clackamas River Drive,
10 Oregon City. That is my former address. It says, "Andrews on
11 mailbox." I don't know if that's true, but I know that the
12 Andrews do live in a residence on that property. John Andrews,
13 Connie Andrews, and their phone number. That is their phone
14 number. It has a -- like a plate number, OR -- I don't know
15 what the RLT is, but I do know that the UNF343, I believe that
16 is one of the Andrews vehicles.
17 Q. All right. Can you look at Exhibit 129, please.
18 Do you see this document?
19 A. I do see it.
20 Q. Do you see what the title of this document is, handwritten
21 document, handwritten notation at the top?
22 A. It says "MCNALLS.DOC."
23 Q. Now, do you recognize any of the information that's listed
24 next to your name in any of the places here?
25 A. I do.
425
1 Q. What information do you see in this?
2 A. Again, I see my name and my former address at 14135 South
3 Clackamas River Drive. It looks like -- it looks like my height
4 and weight, driver's license number, and I believe my date of
5 birth.
6 Q. All right. There's a reference to a Michelle Mary McNall.
7 Does that name mean anything to you?
8 A. No, it doesn't.
9 Q. Can you look at Exhibit 164, please.
10 A. Well, there's some other stuff on here, also, that I
11 recognize.
12 Q. Well, why don't you tell us what that is before you go to
13 164.
14 A. Down below there's my name again with a -- with my work's
15 address on there, and again it has my date of birth and my
16 height and weight.
17 Q. Please go to Exhibit 164. We're going to put it up for
18 you.
19 AGENT GORDON: Is this publish?
20 MR. LONDON: This is published.
21 Q. (By Mr. London) It's an email from Mr. Bell to John
22 Branton -- I'm sorry, to jessicas@alum.mit.edu. It has a cc to
23 Declan McCullagh, John Branton, and a number of other
24 individuals. Subject: Still interested in uncovering the
25 truth. Do you see that? Is that on the screen in front of you?
426
1 A. Yes.
2 Q. All right. Do you see the first paragraph there?
3 A. I do.
4 Q. Okay. Can you -- can you read that?
5 A. Sure. "There is something I'd like you to do for me. I
6 would like you to call the Portland, Oregon BATF office
7 (503-326-5115: That's the number for 'firearms enforcement'
8 which may be the proper number for this case) and talk to 'Mike
9 McNall.'"
10 Q. All right. Now, is that in fact the phone number that you
11 respond at professionally?
12 A. That's correct.
13 Q. If I wanted to reach you at the office to discuss anything
14 with you, could I do it by calling that phone number?
15 A. You could.
16 Q. Have you been part of any kind of past surveillance
17 conspiracy with other government agents or agencies to
18 constantly surveil James Bell?
19 A. No, I have not.
20 Q. Do you know of any such conspiracy?
21 A. No, I do not.
22 Q. Did you ever make a connection after you were told that Mr.
23 Bell was looking for you, when you were told a little about him,
24 between him and an individual you had heard about who lived in
25 the Vancouver area previously and a search warrant in 1997 at
427
1 which another ATF agent, someone who is a colleague of yours,
2 had actually been present?
3 A. I -- an individual in my office had been present at that
4 warrant and I remember hearing things about it, but I didn't --
5 I didn't know who the individual was. I had nothing to do with
6 that case, but I do, I do remember bits and pieces of that.
7 Q. But is it fair to say that when you heard that this Mr. Bell
8 was looking for you, you were notified this past fall about
9 that, and you were told about it, that it rang familiar to you
10 to the -- it brought back something to you about a search
11 warrant at a home that had been done in Vancouver a few years
12 back?
13 A. Yes.
14 Q. And what did you know from your colleague, or what do you
15 remember knowing about what had been found at that place?
16 A. I remember that it was a -- firearms taken out of that
17 residence. I remember there was a -- chemicals, I believe, that
18 was -- if mixed right, would make some kind of nerve gas.
19 MR. LEEN: I object, Your Honor. This is based on
20 hearsay.
21 THE COURT: He may answer.
22 A. And I believe that there -- he -- the agent in my office
23 told me that there was several names of agents, their
24 addresses. There's -- there's a lot of that, that kind of
25 material at his house. I believe there was some -- some books
428
1 on how to manufacture bombs.
2 MR. LEEN: Objection.
3 THE COURT: Overruled.
4 A. Stuff of that nature.
5 Q. (By Mr. London) Now, since you have learned about Mr.
6 Bell's determination to find your home address, what steps have
7 you taken, if any, to better protect either yourself or your
8 family?
9 A. Well, I, I contacted the local police department in the area
10 I live. I talked with them, explained to them the situation. I
11 informed them that if they receive a phone call from my
12 residence, if they could find that and respond to it
13 immediately.
14 My wife had contacted the -- my children's school over this
15 and gave strict rules to the principal of what my children are
16 supposed to do and not to do and who they are supposed to go
17 home with and not go home with.
18 You know, I used to, to leave my side garage door open
19 because -- for my dog to come and go. That's now locked every
20 night. Things of that nature I did. You know, I mean, my wife
21 is completely aware of unfamiliar cars in our neighborhood. I
22 mean, she takes notes of it now. There's a lot of things that
23 was very disruptive over this, this ordeal.
24 Q. As a law enforcement officer, had you encountered this kind
25 of thing before?
429
1 A. Personally, no.
2 Q. Have you given any consideration to whether either your
3 agency or any other agency should protect your house or do any
4 kind of added security for your neighborhood or your residence?
5 A. There's been -- there's been talk about that. Now that
6 you've brought that up, until Mr. Bell was taken into custody,
7 ATF did respond to my house and there was surveillance at my
8 residence, as well as, as Mr. Groener's.
9 Q. Have you had to alter plans, travel plans, for example, in
10 your life because of this?
11 A. During this incident I was supposed to take a business trip
12 that I cancelled. I did not want to leave my family at the
13 residence by themselves, so to speak, overnight, or any night.
14 So I pretty much worked in Portland only.
15 Q. Was this before Mr. Bell was actually taken into custody?
16 A. I believe so.
17 MR. LONDON: Nothing further.
18 THE COURT: Cross-examination.
19 CROSS-EXAMINATION
20 BY MR. LEEN:
21 Q. Good afternoon, Agent McNall.
22 Agent McNall, you've never personally had any dealings with
23 Mr. Bell.
24 A. Not to my recollection, no.
25 Q. So this is probably the first time you personally have been
430
1 in the same room with him or the same area with him.
2 A. This is --
3 Q. Other than that November 10th incident when you responded.
4 A. Yes.
5 Q. And has he ever -- has he ever contacted you directly?
6 A. Like came to my office and contacted me?
7 Q. Or contacted you on the telephone or in any way, directly
8 contacted you?
9 A. Not to my knowledge, no.
10 Q. Or directly contacted any member of your family?
11 A. Not to my knowledge, no.
12 Q. Have you ever known him to be on your property?
13 A. The property I live now?
14 Q. Yes.
15 A. Not to my knowledge, no.
16 Q. Now, you indicated that in 1997 you were the case agent who
17 was in charge of the -- the case agent who handled the
18 prosecution of Ryan Lund.
19 A. That's correct.
20 Q. If I understand correctly, this was originally a local
21 police case. Mr. Lund's case was initially a local police case
22 which was -- jurisdiction was taken over by ATF and the federal
23 government.
24 A. Well, I was working in Vancouver with a -- with an
25 individual that was part of the Clark County Sheriff's Office,
431
1 and it was easier to get a state search warrant in this case,
2 and that's why we did that, yes. But it was a joint
3 investigation.
4 Q. You were assigned to the District of Oregon at the time?
5 A. Well, ATF office in Oregon covers four counties in
6 Washington.
7 Q. And is Vancouver one of them?
8 A. Clark County is one of them, yes.
9 Q. And was Mr. Lund initially -- always intended to be
10 prosecuted federally? Or was that a decision that would have
11 been made after the search warrant?
12 A. Well, if we were -- if we were going to find a gun on him,
13 we were going to present that federally, yes.
14 Q. How long after the search warrant was served was he actually
15 filed on federally?
16 A. I don't recall.
17 Q. Was there a lapse of time?
18 A. There could have been, yes. A month or two. I don't
19 believe Mr. Lund was a resident at the time of the search
20 warrant.
21 Q. And then released and --
22 A. No, I don't believe he was arrested at all.
23 Q. Now, Mr. Lund, it's true, eventually was placed at the
24 Federal Detention Center?
25 A. You know, I'm not sure where he was placed. He was arrested
432
1 down somewhere in southern Oregon, and I don't know where his
2 transportation took him. I do know --
3 Q. Did you ever have to come up to the Western District of
4 Washington to assist in the prosecution?
5 A. No, I don't believe I did. Maybe for a grand jury hearing,
6 and that would have been it.
7 Q. So all your communication with Ms. Maida would have been
8 over the telephone or exchange of faxes or letters?
9 A. I believe so, yes.
10 Q. You testified that Mr. Lund didn't receive any particular
11 consideration for pleading guilty other than what other
12 defendants would get in pleading guilty.
13 MR. LONDON: Your Honor, I object because that really
14 does mischaracterize what his testimony was. His testimony was
15 simply that he was aware that Mr. Lund pled guilty and it was
16 part of a plea bargain.
17 MR. LEEN: I think that --
18 THE COURT: What's the question?
19 MR. LEEN: The question was: Did Mr. Lund receive no
20 particular consideration other than what normal defendants would
21 receive for pleading guilty?
22 THE COURT: Do you understand the question?
23 THE WITNESS: Yes.
24 THE COURT: All right.
25 MR. LEEN: Thank you.
433
1 A. I was not involved in any of these negotiations. I have no
2 idea, but as far as I can tell, it was just a standard plea
3 bargain.
4 Q. (By Mr. Leen) To your knowledge, Mr. Lund was not working
5 as an informant for ATF?
6 A. I know he wasn't working as an informant for myself or ATF,
7 yes.
8 Q. And to your knowledge, he wasn't working as an informant for
9 the federal government at all?
10 A. To my knowledge, that's correct.
11 Q. When were you -- you say that on November -- on November
12 10th, you indicated that you were contacted and asked and
13 responded to Mr. Groener's residence and spoke to officers who
14 had stopped Mr. Bell's vehicle.
15 A. That's correct.
16 Q. Prior to that, when were you notified about Mr. Bell's
17 interest in you?
18 A. Well, it was twice. Once was probably mid September, and
19 that was through Special Agent Jeff Gordon, and --
20 Q. The gentleman over at the table?
21 A. That's correct. And the second time was probably maybe two
22 weeks later, I received a telephone call from the Vancouver
23 Police Department Intelligence Unit, and they basically told me
24 the same, the same thing that Special Agent Jeff Gordon had.
25 Q. And that was that Mr. Bell was trying to locate you or
434
1 locate your personal residence?
2 A. Basically that my name had come over a web page and he was
3 alleging that I was part of some kind of conspiracy or had done
4 a deal with Ryan Lund and they wanted me to be notified about
5 this.
6 Q. All right.
7 A. And they filled in some background on Mr. Bell for me.
8 MR. LEEN: One second, please.
9 Q. (By Mr. Leen) Special Agent McNall, you indicated that
10 after the arrest of Mr. Lund, essentially you had -- although
11 you were the supervising case agent, you really had little
12 actual contact with the case. Is that a correct summary of what
13 you said?
14 A. That's correct.
15 Q. So did you have any ongoing contact with Mr. Lund between
16 the time of his arrest and the time of his guilty plea?
17 A. The last time I spoke with Mr. Lund was the time that we did
18 the search warrant at his residence, and that's --
19 Q. And that was before his arrest?
20 A. That was before his arrest. I didn't even have any contact
21 with him at his arrest or after his arrest.
22 MR. LEEN: Thank you. No further questions.
23 THE COURT: Redirect.
24 REDIRECT EXAMINATION
25 BY MR. LONDON:
435
1 Q. Do you have any idea how Mr. Bell even found out that you
2 were the case agent for this Ryan Lund who beat him up at
3 SeaTac?
4 A. I had heard that he had researched Mr. Lund's case file. I
5 don't know if he had or not, but that's what I found out, and
6 then he found out through that that I was actually the case
7 agent from ATF.
8 MR. LONDON: Nothing further.
9 THE COURT: Recross.
10 MR. LEEN: No questions.
11 THE COURT: The witness may be excused.
12 (Witness excused.)
13 THE COURT: Next witness.
14 MR. LONDON: Jeffrey Gordon.
15 JEFFREY GORDON, PLAINTIFF'S WITNESS, SWORN
16 THE CLERK: Please be seated.
17 Please state your full name and spell your last name.
18 THE WITNESS: Jeffrey Gordon, G-o-r-d-o-n.
19 DIRECT EXAMINATION
20 BY MR. LONDON:
21 Q. Agent Gordon, how are you presently employed?
22 A. I'm a special agent with the Treasury Inspector General for
23 Tax Administration.
24 Q. And were you formerly with the Internal Revenue Service's
25 internal security branch?
436
1 A. Yeah. That's basically the same organization, only we've
2 been renamed and reorganized since a couple years ago.
3 Q. All right. I want to take you back in time a little bit so
4 that we can understand, I suppose, the context of -- that's why
5 we're all here today. But let's go back to 1996. I want to ask
6 you how you first became aware of James Bell.
7 A. I was sitting in my office working one day in, I believe it
8 was, October 1996. I got a call from IRS Revenue Officer Joan
9 Luethe. She told me she had heard that she has -- her name had
10 been posted in some -- on the Internet or somehow related to the
11 Internet and her home address and personal information. She was
12 concerned about it and basically was inquiring as to what we
13 were going to do about it, and she told me that the name of the
14 person who apparently had posted this information or placed this
15 information was Jim Bell.
16 Q. What did you do in reaction to getting that call from Joan
17 Luethe?
18 A. Well, first a traced -- tried to trace back the original
19 information. I asked her, since this was the first I heard
20 about it, where she had gotten the information. She told me she
21 got it from IRS CID, criminal investigation division, Special
22 Agent Lynn Rose. So I called Lynn and contacted her, got some
23 additional information, which included the email address
24 jimbell@pacifier.com, that that was the person who had posted
25 both Lynn Rose's and Joan Luethe's name, and really -- and Lynn
437
1 identified where she got the information from. So I placed some
2 calls and left some messages for the officer who had initially
3 identified that information.
4 And I also, at that point, tried to see if I could identify
5 who jimbell@pacifier.com was.
6 Q. All right. Now, did it stand to reason that if somebody was
7 posting the name of an IRS officer, that person might be someone
8 who had had contact with the IRS either in a tax collection
9 matter or some kind of professional context?
10 A. Yeah, that's certainly possible.
11 Q. Did you check to see if there was a Jim Bell or a James Bell
12 who had had any kind of issues with the IRS?
13 A. Well, that's a -- it's a pretty common name, so I needed, if
14 we ran it in our system, just Jim Bell or James Bell, we would
15 get thousands of responses. So I went onto the Internet and
16 used an Internet search engine to see if I could get some more
17 information on the actual specific email address that I had,
18 jimbell@pacifier.com. When I ran a search, it came up almost
19 immediately with hundreds of articles, many of which were titled
20 either Assassination Politics or the Virtual Lynch Mop or
21 something like that. And so at that point I was very concerned
22 because now not only was there information about IRS employees
23 and their home addresses, but there was also at least the word
24 "assassination," which as a person who is charged with security
25 for IRS officers, that's one of my primary missions. When you
438
1 start talking about IRS, assassinating IRS or assassination and
2 you are identifying names and home addresses, that's an
3 immediate concern for us.
4 But among the messages then as I started to go through and
5 actually read some of the messages and get some information, I
6 noticed that one of the messages that was posted on the Internet
7 was not about assassination, but was actually a for sale ad, and
8 this for sale ad had a phone number associated with it. It was
9 selling some computer equipment. Jim Bell was selling,
10 advertising some computer equipment for sale, and it had a phone
11 number associated with the jimbell@pacifier.com. So by
12 cross-referencing the phone number, that brought me to James
13 Dalton Bell at 7214 Corregidor.
14 Q. Now, when you had that information, what did you do with
15 it? I mean, we've heard a lot of testimony about the Multnomah
16 County Common Law Court and Operation Locate IRS. Were you able
17 to make a connection between the information you now had and all
18 of that?
19 A. Yeah. Then, this is still -- a lot of information is coming
20 in, and I'm not sure of the exact order, but at the same time I
21 got a copy of the originating message that had Joan Luethe and
22 Lynn Rose's name on it. The actual message itself was to the
23 two groups, Northwest Libertarians and Common Law something, was
24 one of the names of it, and it was titled Operation Locate IRS.
25 Q. This is an email message?
439
1 A. That's right. And so the -- and the title being Operation
2 Locate IRS concerned me because this seemed to signify, there's
3 an operation going on. It's more than just a message of these
4 two, but that somehow there's something out there that is an
5 operation to locate the IRS agents. It's being run by the same
6 guy who is proposing Assassination Politics and assassinations.
7 And in talking to the intelligence officers who found this
8 message originally, they told me that they believed that the
9 common law list service that this was posted to was affiliated
10 with a local common law court.
11 So it was -- it looked like we had an organization, the
12 common law court, which I had, as an intelligence officer or
13 security officer, I had some background on what they are and
14 what they do, so they were of a concern. They were apparently
15 running some sort of operation to identify IRS, and the
16 individual involved was -- in assassin- -- was involved with
17 Assassination Politics and which, as I read it, and read
18 discussions of it, seemed to be directly targeted towards taking
19 out tax collectors. I think there's, in the discussions of it
20 and in itself it talks about targeting tax collectors as a means
21 of bringing down the government. That you can't necessarily go
22 after FBI or ATF because they are well-armed and you can't
23 target their agents, but if you take out the tax collectors, the
24 whole government will collapse without the tax system.
25 So given all this information coming in, I, and obviously my
440
1 management and the agency, was very concerned.
2 Q. Now, did the information begin to accumulate to the point
3 where you felt justified in seeking a search warrant for Mr.
4 Bell's residence?
5 A. Yes. Actually, we considered almost immediately that was
6 one of the options we had that we were discussing, getting a
7 search warrant almost initially off the bat. We decided,
8 though, that we would like to get additional information first.
9 We went through about six months of investigation before we
10 finally did it, April 1st, '97.
11 Q. Before doing it, were you able to determine whether Mr. Bell
12 had any kind of a personal beef with the IRS? I mean, had he
13 had a tax problem or a tax issue that had caused him to, to get
14 involved this way, become fixated this way on the IRS?
15 A. Yes. We -- I did some, you know, amongst all the research I
16 was doing, I pulled up tax records. I found some correspondence
17 that he had sent to the IRS, I believe it was in October '96,
18 which he pretty much threatened to take the IRS to the common
19 law court and demanded the names of IRS agents who were
20 responsible for screwing up his account.
21 I think he demanded that all the moneys that he had paid be
22 refunded to him. I noted that there were nonfiled -- there were
23 returns that were required to be filed that hadn't been. He
24 owed a substantial amount of money that had not been collected.
25 His account had been in collection status. They tried to find
441
1 assets, and, in fact, one of the first things, or initially in
2 October-November we discovered as we were tracking back the
3 files that his account was ready to be reassigned back out to a
4 collection officer, a revenue officer, for them to be back in
5 contact with him to see if they could locate assets or collect
6 the money that he owed. So we had to put a -- put a stop to
7 that, or put a hold on that and give them, make sure that they
8 didn't take any action at this point while we assessed the
9 threat and the situation.
10 Q. So you're saying the civil enforcement action on the civil
11 side was suspended while you, on the internal security side,
12 went forward to do a threat assessment of him to find out what
13 kind of a threat he might pose?
14 A. Right. While we figured out what we were going to do.
15 Q. All right. Now, you mentioned that there was a search
16 warrant obtained for a search that was done on April 1st, 1997,
17 at Mr. Bell's home on Corregidor in Vancouver. Were you present
18 at the search?
19 A. Yes, I was.
20 Q. And did you in fact lead the search team that day?
21 A. I was the case agent, so, yeah, I -- as the case agent, you
22 organize the plan and you direct some of the activity, although
23 I believe there was a super -- you know, my supervisor was
24 present, so, you know. It depends how you define lead, I
25 guess.
442
1 Q. All right. And were you part of the seizure and chain of
2 custody, and so forth, for Mr. Bell's computer, the one known as
3 K-1, which is Exhibit 44?
4 A. That was -- I was, as the -- we have a very small office in
5 Portland, and so I am, among other things, the evidence
6 custodian in the Portland office. So any evidence that has come
7 through the Portland office or that is stored in the office, I
8 am involved in chain of custody on since I'm -- I'm, for some
9 periods of time, the only one with the combination to the safe
10 or the key to the room.
11 Q. And, in fact, after that search was done and material from
12 the search was reviewed, was a warrant for Mr. Bell's arrest
13 obtained, a federal warrant?
14 A. Yes, it was.
15 Q. And were you a part of the team that arrested Mr. Bell on
16 May 15th, 1997?
17 A. I'm not sure of the date, but, yes.
18 Q. And were you also the leader of the team of agents who
19 executed a federal search warrant at the home of Robert East,
20 who turned out to be a friend of Mr. Bell's?
21 A. Yes.
22 Q. What was the purpose of searching Mr. East's home?
23 A. During the investigation we obtained information that Mr.
24 East was an associate of Mr. Bell, that they had had
25 conversation -- email conversations, at least, back and forth
443
1 which discussed activities, including wrecking or destroying
2 government computers using nickel coated carbon fibers. There
3 were discussions of chemicals. But among other things, many of
4 the messages between Mr. Bell and Mr. East were encrypted and we
5 could not read them. There's only one or two messages that we
6 found that were decrypted for us on the computer, so most of
7 them we couldn't read, but the ones that we could read were
8 basically discussed -- discussing terrorist-type activity.
9 So --
10 MR. LEEN: Objection, Your Honor, to the
11 characterization "terrorist." Move to strike.
12 THE COURT: He may answer. You can cross-examination
13 what he means by it.
14 Go ahead.
15 A. So we decided as another step to try, since we couldn't
16 decrypt these messages, that -- but when you're emailing, we
17 know that there's basically two copies of an email message that
18 two people exchange; one copy usually on the person who sends
19 it, but that there might also be a copy on the person who
20 receives it. So among other things that we were -- got probable
21 cause for was to go to see if we could seize Mr. East's computer
22 and see if he had the messages on his machine and maybe he had
23 decrypted more of them that we would be able to read.
24 We also had evidence at that point that Mr. Bell may be
25 using Mr. East's house as a staging area or something. We knew
444
1 he was making phone calls from Mr. East's house and we knew he
2 was using Mr. East's house as a mail drop. That he had -- even
3 his employer, we had subpoenaed his employment records, and
4 instead of listing his own address, he was using Mr. East's
5 house as to where he was getting his paychecks and things. So
6 we ended up with enough probable cause to get a search warrant
7 on Mr. East's house.
8 Q. (Mr. London) All right. Now, ultimately, after Mr. Bell
9 was arrested in 1997, he was charged and he did plead guilty to
10 certain offenses. Were you present in court when Mr. Bell pled
11 guilty to obstructing the Internal Revenue laws?
12 A. Yes, I was.
13 Q. And did you hear the exchange, what we call a colloquy,
14 between Judge Burgess and Mr. Bell to make sure that Mr. Bell
15 was admitting facts that were sufficient to support that guilty
16 plea?
17 A. Yes, I did.
18 Q. All right. And what did Mr. Bell acknowledge in court with
19 respect to the purpose of collecting and publicizing home
20 address information on IRS employees?
21 A. I don't remember the exact wording, but basically that he
22 did so with the intent to obstruct the Internal -- the Internal
23 Revenue Service, I believe.
24 Q. Was there any reference in that colloquy of Mr. Bell's
25 purpose being to investigate anything or do research on
445
1 anything?
2 A. No.
3 Q. When did you first hear Mr. Bell's allegation that that
4 guilty plea that he entered, that you were in court for, was
5 coerced by the government using a fellow inmate, Ryan Lund, to
6 beat him up at SeaTac?
7 A. That's a good question, and probably sometime in early 1998
8 there was probably some chatter on the Internet. Occasionally
9 someone would post something on the Internet that at least
10 claimed it was a letter from Jim Bell or that they had spoken to
11 Jim Bell and this is what he was saying, and I think at some
12 point along the line there I read something where he was
13 alleging this information.
14 Q. You were present at the hearing where he pled guilty,
15 correct?
16 A. Yes.
17 Q. Did he ever mention Ryan Lund at that hearing?
18 A. No.
19 Q. Did he ever say that he was being coerced into that guilty
20 plea?
21 A. He said the exact opposite. That's one of the specific
22 questions that the judge asks, judge asks him, "Are you being
23 coerced or threatened?" or something like that, and he did -- he
24 didn't make no such claim. He said -- I don't remember the
25 exact words, but it was clear that he was not.
446
1 Q. Now, Mr. Bell was released from prison after serving his
2 time, and in 1998, I believe, and was placed on what's known as
3 supervised release, is that correct?
4 A. Yes.
5 Q. It's a kind of probation, correct?
6 A. Yes.
7 Q. And are you familiar with the fact that he was accused of
8 violating certain conditions of his supervised release by his
9 probation officer?
10 A. Yes.
11 Q. And in the course of those proceedings, again in front of
12 Judge Burgess, was he now making these allegations about Ryan
13 Lund and the illegal plea agreement that he had been coerced
14 into entering?
15 A. Yes.
16 Q. And at that hearing, didn't Judge Burgess in fact allow Mr.
17 Bell to cross-examine you?
18 A. Yes, he did.
19 Q. Extensively.
20 A. Yes. Over two days, I think.
21 Q. And at that hearing, did he make it clear that he believed
22 that you were part of a government conspiracy to do illegal
23 surveillance on him?
24 A. Yes. There was -- some of the things that he was asking me
25 I didn't understand. But, yes, that was the general thrust, I
447
1 believe.
2 Q. He made the accusation that vehicles had been following him,
3 correct?
4 A. Yes.
5 Q. And do you have any information about vehicles that have
6 ever followed Mr. Bell?
7 A. Well, I think probably back in our original case in '97 we
8 probably tried to have an agent follow him once or twice. That
9 would have been back when we were running our main case back
10 before his first arrest in '97. I know that none of the
11 government agencies or anyone related to them in '98, when he
12 was on supervised release, tried to do any type of surveillance
13 or following of him.
14 Q. Mr. Bell at that hearing, I believe, made an accusation that
15 you had obtained an illegal wiretap, or just a wiretap of his
16 telephone. Do you recall that?
17 A. Yes.
18 Q. Have you ever sought a wiretap of Mr. Bell's home?
19 A. No.
20 Q. Has any other federal or state or local law enforcement
21 agency, to your knowledge, ever sought or obtained a wiretap of
22 his home?
23 A. I have never heard of any such thing, I have never received
24 any information relating to such a thing. There's never been --
25 we didn't have really a need for it. All the information that
448
1 we used in his prosecution we developed from legal lawful means
2 that we disclosed all along.
3 Q. At the hearing when Mr. Bell was permitted to cross-examine
4 you, he suggested to you that you had co-opted his neighbors and
5 allowed -- and persuaded his neighbors to allow you to use their
6 homes to spy on him.
7 A. Right.
8 Q. Or something to that effect. Is that a fair
9 characterization?
10 A. Yes. It certainly has been one of his allegations, yes.
11 Q. Did he in fact say that the neighbors themselves were part
12 of this conspiracy to spy on him?
13 A. He's changed it over time. I mean, some -- in the past he
14 would claim that they were actually federal agents or that the
15 feds had moved into those houses, and over time now he's just
16 recently been claiming that they just knew that the feds were
17 using their houses, or something like that. But he seems to be
18 obsessed with the fact that his neighbors are spying on him and
19 beaming things at him.
20 Q. Now, ultimately Mr. Bell was found to be in violation of his
21 supervised release, correct?
22 A. Yes.
23 Q. And he was sent back to prison for a time, correct?
24 A. Yes.
25 Q. And he got out about a year ago, isn't that correct?
449
1 A. Around April 2000, yes.
2 Q. Now, the jury has heard testimony about the guns that were
3 returned to a designee of his. About the time that Mr. Bell was
4 getting ready to be released a year ago, were you engaged in any
5 kind of discussions or negotiations with an attorney of his to
6 arrange for the release of the guns to someone that he
7 designated?
8 A. Yes. As far back as 1997 we were trying to return Mr.
9 Bell's -- or at least some of Mr. Bell's property to him. And I
10 engaged with at least three different of his attorneys through
11 the years in discussions as to how to get them back to him, who
12 would accept these, you know. Where can I send this
13 information -- who's going to come and pick this up so we can
14 get it out of our office? By 2000, I was again doing that,
15 trying to return the vast majority of his items, including his
16 guns. We exchanged letters. Usual -- we didn't exchange
17 letters. We would send letters to the attorneys giving them a
18 deadline saying, you know, please come and pick this up by, or
19 tell us what you want us to do with it. We offered to ship it
20 directly to Mr. Bell's residence. We're trying to give it back
21 to him and we're getting no -- every time we would set a
22 deadline, we would get no response, and so I would ask my boss
23 if we could destroy them, and he would say no, set another
24 deadline and send another letter.
25 Eventually I just even --
450
1 Q. I'm going to stop you there for a second. Who were the
2 letters being sent to?
3 A. Mr. Bell's attorneys.
4 Q. He had attorneys, correct?
5 A. Yes.
6 Q. And these attorneys were dealing with you on this question
7 at your office address, correct?
8 A. Yes.
9 Q. All correspondence was being exchanged from your office to
10 his attorney's office.
11 A. Right.
12 Q. Correct? Are you familiar with the exhibit that's been
13 offered into evidence that is the -- a letter from Mr. Bell to
14 his attorney, Mr. Solovy, concerning the arrangements to get
15 property back?
16 A. I'm not sure exactly which one that is.
17 Q. Okay. Well, I will come back to that.
18 I want to ask you about the guns for a moment. Were the
19 guns taken during the execution of the search warrant in 1997?
20 A. Yes, they were.
21 Q. And now that Mr. Bell had a felony conviction on his record
22 for the '97 conviction, was he, what we call, a prohibited
23 person in the sense that he was not lawfully permitted to have
24 those guns back?
25 A. Correct. As a convicted felon he's not entitled to possess
451
1 firearms.
2 Q. And so, presumably, that is why one had to arrange for a
3 designee or somebody for him to designate to receive those for
4 him.
5 A. Right. And we told his attorneys along the way that, you
6 know, we would ship his property back to him, but the guns would
7 have to be signed over to somebody who is legally entitled to
8 possess them.
9 Q. Now, were you monitoring Mr. Bell or any of his activities
10 while he was still in prison about a year ago, just before he
11 was about to get out?
12 A. I was -- I don't know that I was monitoring him. I would
13 receive -- depending on what he was doing, people tended to --
14 who were in contact with him tended to call me on occasion and
15 provide me with their concerns or information about him, and I
16 was also contacted by other law enforcement agencies who were
17 interested or concerned about him.
18 Q. Is it fair to say that you continued to maintain a certain
19 interest in Mr. Bell, even as his release was approaching?
20 A. Yes.
21 Q. And why was that?
22 A. Because based on the information that was coming in, the
23 information that was on the Internet, it was clear that -- and
24 being based on even at the probation hearing, it was clear that
25 he was being very obsessed with this whole conspiracy thing,
452
1 that he blamed me and the agency and -- for these types of
2 things. And that it appeared that there was going to be some --
3 that we may end up with a problem with him or some substantial
4 security issues when he finally got out of jail, and we knew he
5 was going to get out of jail.
6 Q. You were present at the execution of the search warrant at
7 his residence in 1997. There's been reference to the fact that
8 chemicals were found there. What can you tell us about
9 chemicals that were found? Without referring to anything that
10 Mr. Bell may have ever said, you know, in the process of any
11 kind of interview, what was found at the property in the way of
12 chemicals?
13 A. There were quite a few chemicals in the garage. There was
14 acids, there was cyanide. There were some specific chemicals in
15 the garage. We ended up evacuating for -- much of the search
16 warrant due to haz-mat and various agencies that took a look at
17 it to figure out what we were going to do.
18 Q. You said evacuating. Are you saying that it -- a decision
19 was made to evacuate members of the search team, or at least to
20 evacuate the house while you determined what some of these
21 things were?
22 A. Right. It was a fairly chaotic search warrant because of
23 that. Just by -- you know, we were just getting set up and we
24 had to pull out for several, several hours. There was debate
25 about whether it was even safe to go back into the house at
453
1 all. Haz-mat --
2 Q. What is haz-mat? You've got to --
3 A. I'm sorry.
4 Q. -- explain those things for not only the jury, but for the
5 court reporter.
6 A. The hazardous materials team for the Vancouver Fire
7 Department was one of the agencies that responded to the scene.
8 They told -- they told us that they wouldn't go into the
9 residence at all. They didn't feel it was safe, and they
10 weren't sure that it would ever be safe to go in there. But
11 there -- so there was some debate about whether we should just
12 walk away from the search warrant and leave it. So there was a
13 lot of concern about what the chemicals were and how dangerous
14 they were and what we were going to do with them. We eventually
15 made a decision to go back in but to do it very quickly, and to
16 seize -- you know, not to do as detailed and thorough of a
17 search as we normally would do but to see if we could, you know,
18 get the items we were looking for and get out of there as
19 quickly as we could.
20 Q. Was a decision made to analyze any or all of the chemicals
21 that were found to see if they in fact posed any kind of a
22 hazard?
23 A. Yeah. The EPA eventually came out and seized quite a few of
24 the chemicals. We sent the list of the chemicals back through
25 the EPA scientist to the Army Military Specialists in Chemical
454
1 Warfare. They told us that the --
2 MR. LEEN: Objection. Hearsay.
3 MR. LONDON: Actually, Your Honor, it's not being
4 offered for the truth of what it was but for what his state of
5 mind was in.
6 THE COURT: Was it through, the information, through
7 some law enforcement agency coming to this witness' attention?
8 MR. LONDON: (Nods head.)
9 THE COURT: If it is, it will stand.
10 MR. LONDON: Yes. It's being offered to show that this
11 witness, who's here in a, I suppose, a hybrid capacity today as
12 an investigator but also as a victim, had information that the
13 chemicals involved were such that they could be synthesized to
14 make a kind of Sarin gas. That's why he's afraid.
15 THE COURT: I'm asking, did he receive it in his
16 official capacity?
17 MR. LEEN: Your Honor, I move to strike the
18 prosecutor's testimony.
19 THE COURT: There's no testimony. I'm asking him a
20 question.
21 Is this information you're attempting to elicit received by
22 this witness through his official capacity in this case?
23 MR. LONDON: It was at the time, Your Honor, yes.
24 THE COURT: It will stand.
25 MR. LONDON: All right.
455
1 Q. (By Mr. London) What reports did you receive back from
2 other agencies or the military who had had a chance to analyze
3 some of these chemicals to see what they would be capable of
4 doing, either on their own or mixed together?
5 A. The report came back both through the EPA and through the
6 Army's, I forgot what they're called, but their chemical weapons
7 specialist --
8 MR. LEEN: I object.
9 THE COURT: Overruled.
10 A. -- that there were two basic serious concerns. One was that
11 the cyanide and the acid could be mixed together to form some
12 sort of nerve agent, highly toxic. And the other was that the
13 -- there was one other chemical that was like a precursor to a
14 Sarin derivative or to a similar chemical to Sarin. Precursor
15 meaning that you mixed it with or did something with it and it
16 becomes Sarin. Or similar to Sarin.
17 Q. (By Mr. London) All right. So now let's come back now to
18 last spring. Mr. Bell is released from prison, and you've made
19 reference to the fact that you were receiving information about
20 him from other sources. Are you talking about law enforcement
21 sources?
22 A. To a certain extent, but essentially Mr. Bell was in
23 contact, for the most part, with other people in jail and
24 contacting people from jail or writing letters, and quite a few
25 of the people that are -- at least several of the people that he
456
1 was in contact with had contacted me just kind of as a
2 cautionary heads up to say, hey, you may want to watch out for
3 this guy because he seems obsessed with you.
4 MR. LEEN: Object, Your Honor, to what individuals
5 might have said that weren't in law enforcement.
6 THE COURT: I will ask again. Did he receive it in his
7 official capacity?
8 MR. LONDON: Yes.
9 THE COURT: You may talk about it. Overrule the
10 objection.
11 A. So I was getting calls from people who were basically giving
12 me a heads up to say, you had better be cautious about this.
13 Q. (By Mr. London) Now, is it fair to say that in your private
14 contacts with Mr. Bell in court, especially in the hearings in
15 front of Judge Burgess that I believe lasted a couple of days,
16 that he -- is it clear that he had certain strong feelings about
17 you, is that a fair statement?
18 A. Yes.
19 Q. So when he got out, is it fair to say that you were also
20 aware of him because you knew that, that he really was very
21 concerned about you in a way that was perhaps not friendly?
22 A. Absolutely. I was familiar with his background. I had been
23 receiving these reports. I read Declan McCullagh's news
24 article.
25 Q. And what was there in Declan McCullagh's news article that
457
1 caused you to take notice or be concerned that maybe the old
2 pattern was repeating itself?
3 A. Well, he clearly wasn't backing off from any of the types of
4 activities that we had arrested and prosecuted him for in the
5 first place. He wasn't recanting. He was still advocating the
6 Assassination Politics, the assassination of essentially
7 government officials, and specifically tax collectors to bring
8 about the overthrow of the government. And he was -- he said
9 something in there about they had better resign now and hope for
10 mercy.
11 So it was clear that, you know, our hope, which was that the
12 prose- -- the initial prosecution and subsequent, the originally
13 supervision, would bring about a modification in his behavior so
14 he wouldn't keep coming after either the agency or us.
15 Q. The agents -- shortly after Mr. McCullagh's article appeared
16 in Wired, the first one, anyway, which I believe appeared on
17 April 14th, shortly after that, he got out of prison, correct?
18 A. Yeah. I think he actually got out around April 14th.
19 Q. All right. Shortly after that, did you get a telephone call
20 from Vancouver, someone in the Vancouver Police Department,
21 saying that he had been seen at a voter registration office?
22 MR. LEEN: Objection. Hearsay.
23 THE COURT: Pardon?
24 MR. LEEN: Objection. Hearsay.
25 THE COURT: Are you asking if he got --
458
1 MR. LONDON: I will break it down.
2 Q. (By Mr. London) Did you get a telephone call from someone
3 at the Vancouver Police Department shortly after Mr. Bell got
4 out of prison?
5 A. Yes.
6 Q. Was it about Mr. Bell?
7 A. Yes.
8 Q. Did it involve --
9 THE COURT: Is there an objection to that?
10 MR. LEEN: Yes.
11 THE COURT: Overruled.
12 MR. LEEN: No, not that. Not that. Not that.
13 Q. (Mr. London) What was the subject of the telephone call?
14 MR. LEEN: That I will object to.
15 THE COURT: Overruled.
16 A. He told me to pass on information that Mr. Bell, who was
17 now, based on, among other things, John Branton's, some of the
18 news articles, relatively well-known in Vancouver, that the
19 people in the voter registration office had seen him in the
20 voter registration office in Vancouver looking up apparently
21 names or addresses -- voter registration records.
22 Q. (By Mr. London) All right. Did you also receive complaints
23 from anyone in Mr. Bell's neighborhood about smoke or something
24 that smelled toxic coming from any -- from the vicinity of his
25 house?
459
1 A. Yes. Well, not from the neighborhood directly. I received
2 a call, I don't remember -- we had several discussions about
3 this, but essentially from the Vancouver Fire Department, had
4 been receiving complaints in --
5 MR. LEEN: Objection.
6 A. -- the summer --
7 MR. LEEN: Objection, Your Honor. Nonresponsive.
8 THE COURT: What's the question?
9 Q. (By Mr. London) Did you receive any information from the
10 Vancouver Fire Department about smoke or a toxic smell coming
11 from the vicinity of Mr. Bell's house?
12 A. Yes.
13 MR. LEEN: Objection.
14 THE COURT: He may answer.
15 MR. LEEN: Objection. Hearsay.
16 THE COURT: He may answer.
17 A. Yes. I talked to several people, but among them, Vancouver
18 Fire Department. It was the summer of 2000, the weather was
19 quite warm, and they were getting complaints that there was a
20 black smoke coming out of his chimney. They were concerned
21 because, among other things, it was summertime so there was no
22 need normally to burn things to warm your house and that
23 normally if you are just burning wood or normal things, you
24 don't get this black smoke. They were concerned that possibly
25 he was burning chemicals or doing something in the fireplace,
460
1 and there was a lot of discussion about whether that was
2 chemicals or -- and there's a lot of concern about that.
3 Q. (By Mr. London) Now, at this point, were you monitoring, as
4 best you could, any possible use that he might be making under
5 his own name in any way of the Internet?
6 A. Well, we were -- I was checking, yes, the public portions of
7 the Internet to see if there were any publicly posted things or
8 information from him or about him and reviewing --
9 Q. How did you check that? I mean, how would you go about, you
10 know, getting on your computer, getting onto the Internet, and
11 seeing if -- what, if anything, Mr. Bell was posting to the
12 Internet?
13 A. A couple different ways, one of which was the Cypherpunks
14 list. I knew from the previous investigation that he would
15 occasionally, or posts to the Cypherpunks list, and throughout
16 the case a lot of information about him or from him was posted
17 to the Cypherpunks list, which is publicly accessible to anybody
18 on the Internet. So that was one place that I would check to
19 see if there was any information.
20 There is also the Usenet portion, or it's kind of a bulletin
21 board portion of the Internet where these different groups and
22 organizations that talk, and you can just search that using a
23 search engine to see if there's any postings.
24 Q. On September 15th, did you spot an email that he posted to
25 the Cypherpunks list mentioning Mike McNall and Ryan Lund?
461
1 A. I'm not sure. I know there's an email dated September
2 15th. I'm not exactly sure what the date that I saw it was, but
3 it would probably have been within a few days of it having been
4 posted. Yes.
5 Q. Is this the one that -- in which he said, "I suspect that it
6 was Agent McNall who did the deal with Lund," correct?
7 A. Yes.
8 Q. Did you notify Mr. McNall that you had come across this?
9 A. Yes, I did. Knowing Mr. Bell's history and the possibility
10 that he might be targeting or doing something now or focusing on
11 Agent McNall, I just called over to the -- from the phone book,
12 I believe, the Portland ATF office and asked for Agent McNall,
13 left a message for him, and eventually got in contact with him.
14 Had to kind of start from scratch explaining what was going on
15 regarding this posting situation.
16 Q. Now, on October 10th, did you find Mr. Bell, or find an
17 email from Mr. Bell on the Internet telling other people by
18 email to look up Assassination Politics?
19 A. I'm not sure of the date, but I know there have been several
20 emails where he's reaffirmed or asked people to read his essay,
21 Assassination Politics, and pointed them to the various -- to
22 the website, to John Young's website where it's stored.
23 Q. I want to ask you to look, if you will, at Exhibit 130. We
24 will put that on the screen for you.
25 A. Okay.
462
1 Q. Do you recognize Exhibit 130?
2 A. Yes. And I see my initials on it showing that this is an
3 exhibit that I created.
4 Q. Does that mean that you downloaded that from the Internet?
5 A. Right. I received this -- this is an email that was posted
6 to the Cypherpunks list. I created an email account
7 specifically to receive those emails, and this is a version of
8 the -- this is the original email then that I received from the
9 Internet that I then printed out and I initialed and dated.
10 Q. All right. Now, what caught your attention about this email
11 and made you decide that it had some significance? I mean, this
12 is the one entitled "judges needing killing."
13 A. Right.
14 Q. But it actually -- originally, the original judges needing
15 killing email was not written by Mr. Bell, correct?
16 A. That's true. Although, anything with a title like "judges
17 needing killing" is usually something that will catch my
18 attention as a law enforcement officer, and I tend to read those
19 types of messages.
20 Q. Right. So what was there in this exchange that caused you
21 to be concerned?
22 A. Well --
23 Q. About Mr. Bell.
24 A. Yeah. This one was of particular concern because now he was
25 again -- this is the one where he discusses getting -- using
463
1 PCPs -- PCBs, polychlorinated biphenyls -- against, in assorted
2 government targets, contaminating cars that have been seized by
3 the government with these PCBs. And here, again, this is a
4 little different, but again similar to what he had done in the
5 past using chemicals against government targets, and he was
6 discussing doing that, and that was again a concern.
7 Q. And in this -- look also at 131 and 132 and 133. What do
8 those appear to be?
9 A. Now, 131 is the same email message as 130; they are just
10 from different sources. 130 is the one that I saw on the
11 Internet, and it's got -- I think one of the other witnesses
12 mentioned -- extended headers. Normally you don't see these on
13 an email message that you get, but because I use this account
14 for law enforcement we sometimes need to trace the message over
15 the Internet from where it came, so I have all messages come in
16 with these extended headers which is what allows somebody like
17 Hilda Muramoto, who testified, to tell you who sent it or trace
18 back where it came from. So that's on 130.
19 131 is the one that came in through, I believe, John
20 Rabatin. It's the outgoing version from the sent box from Mr.
21 Bell's computer. So it's the same message that was sent; one
22 from the receiving end, one from the sent end.
23 Do you want me to talk about 132, also?
24 Q. Yes. And 133.
25 A. 132 is another, a later email message, still on the subject
464
1 titled "judges needing killing," and in this message still
2 discussing the PCBs. Somebody had responded to his initial
3 message suggesting using PCBs and stated that, you know, PCBs
4 are hard to acquire. That's -- there's a little caret showing
5 that that's somebody else saying that. And Mr. Bell responded,
6 "I beg to differ. Check the material I downloaded below.
7 Acquiring PCB's requires little more than the will to do it.
8 Believe me, I know." And the word "know" has kind of got little
9 underlines on either side which is a way of emphasizing
10 something when you are speaking on the Internet or typing on the
11 Internet.
12 This, of course, was a very -- even more of a concern now
13 because this "I know" when talking about PCBs and acquiring them
14 indicates to me that he's trying to at least hint that he has
15 acquired these PCBs that he previously suggested be used against
16 vehicles seized by the government or to use to contaminate
17 government property.
18 So this was quite an escalation, in my mind, especially
19 after -- in considering the black smoke that was coming out of
20 his chimney and the complaints, at least the allegation of
21 that. So. And this is -- it was at this point that we opened
22 up a new investigation in 2000 on Mr. Bell.
23 Q. "Judges needing killing" appeared initially on October
24 19th. On October 24th, just five days later, did you see the
25 email that we have as Exhibit 140, and another version as 141,
465
1 "Say Goodnight to Joshua"?
2 A. Right. 140, again, this is my version that I downloaded --
3 that I saw on the Internet and downloaded and initialed and
4 received, whereas 141 is the same email, only the version from
5 his computer that was the original copy from the sent box. This
6 one was a concern to me immediately because I could -- I wasn't
7 sure exactly what he was talking about. I had no idea at this
8 point who Joshua was, but I realized that Joshua must be the son
9 of somebody, and knowing that he's -- you know, the reference to
10 a thug, I had seen many, many times in Jim's writings and things
11 and I knew that's his term for law enforcement in general. So I
12 realized that he must have been out. He says he's been out
13 doing research and did a field trip and meant to be seen, so I
14 figured he had done something someplace. I wasn't sure at that
15 point who or what or where. In fact, I made a call to see if --
16 he had also been focusing a little bit on a Vancouver police
17 officer, so I called up to Vancouver to see if maybe Joshua was
18 that person's son.
19 Q. But it turned out not to be?
20 A. That's correct. Actually, when I called up there, they --
21 by that point they had -- I had left a message, and by the time
22 they called back, they had already spoken to Agent McNall, who
23 was calling to report back in that Mr. Bell had been on his
24 property. So at that point, we were starting to put together
25 that maybe this had something to do with Mike McNall.
466
1 Q. Now, the "Say Good Night to Joshua" email, you saw that on
2 October 24th. In fact, the same day, did you also monitor
3 Internet communication between Mr. Bell and John Young about the
4 CIA in Oregon?
5 A. Well, what -- let me -- do you have an exhibit number?
6 Q. If you will look at 150, 151.
7 A. Okay.
8 Q. In fact, right through 158.
9 A. Keeping in mind that -- the emails are dated that specific
10 day, but it doesn't necessarily mean that that's exactly when I
11 saw them. And when we say that I was monitoring communications
12 between them, what I monitored was the public postings on the
13 Internet. We were not monitoring any email communications
14 between private parties, but when they would post something
15 publicly, in this case to the Cypherpunks list, that was
16 publicly available to anybody on the Internet, and still is to
17 this day. So that, that would be the kind of thing that I would
18 be watching normally on the Internet.
19 And, yes, I saw John Young's initial posting. I saw Jim
20 Bell's responses. 151 is the document I downloaded from the
21 Internet, my version of it. 152 is the same document
22 subsequently obtained from Mr. Bell's computer from his out
23 box.
24 Were there other exhibits?
25 Q. Well, the sequence involving --
467
1 A. Right. Like 155 is also another CIA in Oregon that I
2 downloaded myself from the Internet that I had seen publicly
3 posted, which is associated then with 156. Again, the same
4 email, only this time from Mr. Bell's out box that we recovered
5 after the search warrant.
6 157, same thing. This is my version that I saw on the
7 Internet and downloaded and initialed.
8 158, basically the same email. They look different on the
9 first page again because of these headers that are on the
10 received version that would help us trace it back, but it's --
11 the text is the same because it's from the out box.
12 Q. Please look at 162. Four, five days later after the
13 exchange with John Young about the CIA in Oregon, did you see a
14 posting by Mr. Bell to the Cypherpunks discussing --
15 A. 162 is a post again that I downloaded from the Internet from
16 Mr. Bell that was publicly posted to Cypherpunks. On this one,
17 the to box says to A. Melon, but Cypherpunks is also one of the
18 additional addresses on there.
19 Q. All right. And what caught your eye on this particular
20 email?
21 A. In this one, it's the statement, "And there are no 'statutes
22 of limitation' on our response to these people regardless of
23 current law." So that particular statement concerned -- again
24 concerned me. Although that's pretty much typical Jim Bell
25 statement and philosophy, which is he doesn't care what the
468
1 current law is, he believes that he can retaliate against
2 law enforcement or anyone in government for anything that he
3 perceives is not right. And in this case, they're talking
4 about, I think, gun laws and drug laws and his, you know,
5 statement that, you know, not only is -- is, you know, it
6 okay for him to retaliate, but there's a -- there's no statute
7 of limitations. This is the rest -- you know, he can come
8 after us forever for what he perceives to be our offenses
9 against him.
10 He also is discussing in here getting voter registration
11 office and ordering a copy of the voter registration databases
12 for current and future use, which is part and parcel of it.
13 Let's go find out where they live in case we want to use it now,
14 or if we can't do it now, in case we want to find out where they
15 live so we can get them later.
16 MR. LONDON: I will ask the court, would this be a good
17 time to stop for the day?
18 THE COURT: All right. The jury's cautioned: Please
19 do not discuss the case among yourselves or anyone else over
20 the evening recess. Be in the jury room at 9:30 tomorrow
21 morning.
22 (Jury excused at 4:43 p.m.)
23 THE COURT: Will the security people please see that
24 nobody leaves this courtroom until that jury clears that
25 corridor out there. Everybody remain until the security people
469
1 say you're free to leave.
2 The witness may step down.
3 To both parties: Is there a redacted copy of Exhibit 51?
4 MR. LONDON: We have agreed on the redactions but we
5 haven't had a chance to make it yet, so we will bring that to
6 court tomorrow morning.
7 THE COURT: All right. How many more witnesses do you
8 have?
9 MR. LONDON: Mr. Gordon is the last witness for the
10 Government's case in chief.
11 THE COURT: All right.
12 Are they out of there?
13 MR. LEEVER: No, Your Honor. They are still in the
14 jury room, Your Honor. It's taking a few minutes.
15 THE COURT: See if anybody is still in there.
16 MR. LEEN: What time did the court say we start
17 tomorrow morning?
18 THE COURT: Pardon?
19 MR. LEEN: 9:30 tomorrow morning?
20 THE COURT: 9:30.
21 All right. One more?
22 MR. LEEVER: Yes.
23 THE COURT: Check with the security officer and see
24 when that person goes by.
25 THE CLERK: He will let us know when the juror walks
470
1 by. He went in his restroom.
2 It's clear.
3 THE COURT: All clear?
4 Court's in recess.
5 (Recessed at 4:45 p.m.)
6 C E R T I F I C A T E
7 I certify that the foregoing is a correct transcript from
8 the record of proceedings in the above-entitled matter.
9
10
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12 ________________________________ October 22, 2001
13 JULAINE V. RYEN Date
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