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 5 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
650
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 9, 2001
)
8 Defendant. )
)
9
10 VOLUME 5
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.
651
1 I N D E X
Page
2
VOLUME 5 651 - 804
3
WITNESSES ON BEHALF OF DEFENDANT:
4
JAMES D. BELL
5 Direct (Continuing) .......... 659
Cross ........................ 698
6
Defendant Rests ................................. 768
7
Plaintiff Rests ................................. 768
8
9 MOTIONS:
10 Defendant's Motion to have Defendant
Examined Mentally ............................ 652
11 Denied ................................. 653
12 Defendant's Motion for a Mistrial .............. 700
Denied ................................. 700
13
Defendant's Renewal of Motion to have Defendant
14 Examined Mentally ............................ 700
Denied ................................. 700
15
Plaintiff's Motion to Strike Defendant's
16 Testimony if all Government's Questions are
not Answered .................................. 700
17
Motion to Withdraw as Attorney for Defendant .... 701
18 Denied ................................. 701
19 Defendant's Motion for a Mistrial .............. 767
Denied ................................. 767
20
Defendant's Motion for Judgment of Acquittal .... 800
21 Denied ................................. 802
22 Defendant's Renewal of Motions for a Mistrial .. 802
Denied ................................. 802
23
EXCEPTIONS TO INSTRUCTIONS:
24 Plaintiff ................................... 773
Defendant .................................. 775/798
25
652
1 (Defendant present.)
2 MORNING SESSION
3 (Jury not present; 9:50 a.m.)
4 THE COURT: Did you have a motion, Mr. Leen?
5 MR. LEEN: Yes, Your Honor.
6 Your Honor, I think that the defendant is suffering from a
7 major mental disorder. He has accused me of threatening him,
8 and he is developing connections of random events, as if I'm
9 involved in -- well, colluding with the government and the court
10 and government in general to deprive him of a fair trial. And
11 he insists that -- and he insisted this morning, in fact, when I
12 came into court that I was threatening him.
13 This arose out of a meeting at the Federal Detention Center
14 yesterday. It took place about, between 8:30 and 10:30, 11:00
15 o'clock in the morning, and at the end of it, the defendant told
16 the day officer, or the officer in the visiting room, that he
17 had been threatened, and he continues to say that.
18 I put a declaration under seal, which I have given a copy
19 only to the defendant and the court, as to my version of what
20 happened and why I believe that the defendant is not competent
21 at the present time.
22 I'm asking that he be examined. The court has heard his
23 trial testimony. It goes beyond his trial testimony to extreme
24 agitation, as well as these fixed beliefs of illegal behavior
25 going back to 1996.
653
1 Thank you.
2 THE COURT: Does the government wish to be heard?
3 MR. LONDON: Your Honor, obviously I'm at somewhat of a
4 disadvantage because I don't know what the nature is of some of
5 the factual assertions made in what has been filed under seal,
6 but I can say this. To the extent that it appears to involve
7 accusations against Mr. Leen of collusion with the government,
8 those accusations have been made by the defendant before, and in
9 fact they were made as early as December before Dr. Johnson
10 undertook his evaluation of the defendant. Dr. Johnson was
11 apprised of those sorts of allegations prior to meeting with the
12 defendant and examining him, and I think that they do inform, to
13 some extent, his conclusion that the defendant was, while
14 perhaps presenting certain clinically diagnosable conditions,
15 nonetheless --
16 THE DEFENDANT: He did not say that, sir.
17 MR. LONDON: -- nonetheless competent to stand trial.
18 THE COURT: I think the record should reflect that this
19 court has observed Mr. Bell both before the start of the trial
20 and continuously during the trial. It appears to me he knows
21 what he's doing. He knows right from wrong. He understands the
22 nature of the charges against him, and if he wanted to, he could
23 assist his attorney. But it appears to the court that he wants
24 to do it his way. He wants to tell his story his way.
25 So the motion will be denied.
654
1 Mr. Bell, I understand you are having some problems whether
2 you should appear or not?
3 THE DEFENDANT: My microphone isn't on, sir. Do I
4 speak to you directly?
5 THE COURT: Oh, I can hear you.
6 THE DEFENDANT: Okay. I will speak loud enough so
7 everybody in the court -- yes, there are some serious problems
8 going on.
9 THE COURT: As to this courtroom, what are they?
10 THE DEFENDANT: Well, as of yesterday morning -- well,
11 you say this courtroom, sir?
12 THE COURT: Yeah.
13 THE DEFENDANT: Just within the walls of this
14 courtroom, or are you referring to the trial process?
15 THE COURT: In front of the jury. Because the jury
16 decides innocence or guilt.
17 THE DEFENDANT: I understand that.
18 THE COURT: Has anybody threatened you within the
19 confines of this courtroom?
20 THE DEFENDANT: Other than a death threat I received
21 yesterday -- or I was relayed yesterday morning concerning
22 some -- my -- I'm sorry. It's hard for me to speak at this
23 point for just a moment.
24 There is a desire to have me not speak of at least two
25 incidences in 1997 involving a Valdez Maxwell and a Billy
655
1 Martin. Valdez Maxwell, about 6 -- June 15, 1997, overheard and
2 relayed to me a threat, a death threat. He's -- Mr. Maxwell is
3 not responsible for the contents of that threat. He -- Valdez
4 Maxwell is a nice guy.
5 Billy Martin was a local thug in Kitsap County Jail. He
6 communicated a death threat against me -- it's hard to remember
7 -- the July or August time frame of 1997. I was in a very -- I
8 was very depressed during that period of time, particularly due
9 to the first threat that was delivered to me.
10 I've been told that I cannot speak of those incidences
11 despite the fact that the threat apparently did come from
12 government sources originally, those two threats. That leads
13 me to conclude -- well, my state of mind for the last
14 three-and-a-half or so years has been thoroughly based on those
15 incidences and my reaction to them. Records will show that I
16 was extremely depressed in 1997, particularly at Kitsap County
17 Jail. I was --
18 THE COURT: Mr. Bell, I'm talking about now. I'm not
19 talking about 1997.
20 THE DEFENDANT: Yes. I was threatened --
21 THE COURT: You've been in this court since last
22 Tuesday.
23 THE DEFENDANT: Yes.
24 THE COURT: A week ago.
25 THE DEFENDANT: Yes.
656
1 THE COURT: Tomorrow.
2 THE DEFENDANT: Yes. Physically --
3 THE COURT: I'm asking you --
4 THE DEFENDANT: Yes.
5 THE COURT: -- has anybody, since you've been in this
6 court, or in the marshal's quarters downstairs, has anybody, by
7 name, threatened you in any way?
8 THE WITNESS: Within the four walls of this courtroom,
9 no.
10 THE COURT: I'm talking about the United States
11 marshal's quarters downstairs where you've been confined.
12 THE WITNESS: You mean the temporary confinement?
13 THE COURT: Yes.
14 THE WITNESS: The four cells down there.
15 THE COURT: Yes.
16 THE DEFENDANT: No, no one has spoken -- I have -- or
17 correction. I have discussed the issue a few minutes ago with
18 one U.S. marshal, a few minutes ago, concerning the threat, but
19 I was discussing the threat. It was not reported to me.
20 THE COURT: All I'm asking you, has anybody, on behalf
21 of the United States Attorney's office -- by name now -- or any
22 United States marshal that's come in contact with you threatened
23 you in any way?
24 THE WITNESS: I would rather not answer. I apologize
25 with respect to the U.S. Attorney's office. Marshals, no.
657
1 Marshals are professional people. They are -- they do their job
2 quite well. I'm not aware of any --
3 THE COURT: Has anybody in the United States Attorney's
4 office --
5 THE DEFENDANT: I do not --
6 THE COURT: -- or connected with them, that you know by
7 name, threatened you --
8 THE WITNESS: I do not know --
9 THE COURT: -- personally?
10 THE WITNESS: I do not know the names of the personnel
11 in the U.S. Attorney's office. I would not know who they were,
12 if they were to contact me directly.
13 THE COURT: Has anybody in this courtroom, from time to
14 time, or any of the witnesses, or anybody else that you can
15 think of, threatened you in any way?
16 THE DEFENDANT: As to the witnesses, never. Most of
17 the witnesses were people that I have never met or seen before.
18 A few exceptions, of course, were my -- certain of my friends,
19 and, of course, they have never threatened me. There were other
20 people -- no. No. The witnesses in this trial so far have
21 never threatened me. It was not those people who gave me the
22 threats.
23 THE COURT: All right. Is there any reason that you
24 should not continue before this jury?
25 THE DEFENDANT: I -- I'm not an expert in legal
658
1 ethics. I'm not an expert in court procedure. I'm not a
2 lawyer. I've never had any formal legal training. For me to
3 answer that question, I'd have to conclude, would require me to
4 know a lot about legal ethics that I do not know. I'm not a
5 lawyer.
6 I think there probably is a lot of problems with my
7 continuing if I'm not allowed to say my piece. If I'm not going
8 to be allowed to say my piece, as the threat indicated, then
9 this proceeding is probably going to have to stop. If I'm
10 allowed to speak my piece about many incidences that occurred,
11 testimony that will -- I will be happy to give, but it will take
12 at least six hours, I believe, if properly considered.
13 THE COURT: Mr. Bell, you do not run the courtroom.
14 THE DEFENDANT: I realize that.
15 THE COURT: Do you understand that?
16 THE DEFENDANT: I realize that.
17 THE COURT: Is there any reason now that I shouldn't
18 call this jury in and continue?
19 THE DEFENDANT: I think there's a great deal of reason.
20 THE COURT: Well, give me one.
21 THE DEFENDANT: I've been threatened. I do not have
22 legal representation this morning.
23 THE COURT: Do you want to remain in the courtroom?
24 THE DEFENDANT: Do I want -- I do not feel any threat
25 -- any immediate physical threat in this courtroom. There are
659
1 plenty of witnesses, nothing is going to happen. I'm happy to
2 remain in the courtroom. It's not physically within the four
3 walls of this court that I would be attacked. So, physically I
4 have no problem with staying in this courtroom right now.
5 THE COURT: All right.
6 Ready for the jury?
7 MR. LONDON: Yes, Your Honor.
8 THE COURT: Okay. Bring the jury.
9 THE DEFENDANT: I -- I apologize. I still do not
10 believe this proceeding should continue under the current
11 circumstances.
12 THE COURT: They are going to continue, sir.
13 (Jury present; 10:01 a.m.)
14 THE COURT: Good morning.
15 (Some jurors respond "Good morning.")
16 THE COURT: Be seated.
17 Continue direct examination, Mr. Leen.
18 MR. LEEN: Thank you, Your Honor.
19 DIRECT EXAMINATION (Continuing)
20 BY MR. LEEN:
21 Q. Mr. Bell, Counts 1 and 2 accuse you of stalking, interstate
22 stalking, on October 23rd, 2000. Count 1 says that you stalked
23 Mike McNall, and count 2 says that you stalked Jeff Gordon. So
24 would you tell the jury what you did on October 23rd, and why
25 you did it?
660
1 A. I would like to precede my answer with a comment that
2 yesterday Mr. Leen delivered a death threat to me on behalf of
3 the federal government against myself and six other members of
4 my family if I talked about certain things that happened in 1997
5 to me at Pierce County and Kitsap County Jail.
6 June 15th, 1997, a man named Valdez Maxwell, who is a nice
7 guy, delivered a -- nicely reported the knowledge of a threat to
8 me. A person named Billy Martin a couple months later delivered
9 a threat to me that he proved was from the federal government.
10 I'm currently under coercion here. I do not trust this man
11 to be my attorney. He's continuing to answer questions. I will
12 continue, I guess, to answer his questions under the
13 circumstances, but I have no legal representation here at this
14 point. Frankly, I'm scared.
15 I reported this to 20 attorneys over an unmonitored attorney
16 phone line at SeaTac Federal Detention Center yesterday,
17 including communications to my other attorney, Mr. Solovy, (206)
18 621-8777.
19 I'm very bothered. I'm very scared.
20 Could you please re -- could you repeat the question,
21 please?
22 Q. The question I asked you was, in count 1 and count 2, you're
23 accused of interstate stalking.
24 A. Yes.
25 Q. Count 1 says Mike McNall, count 2 says Jeff Gordon. And the
661
1 government said that you did this on October 23rd. So I would
2 like you to tell the jury what you did on October 23rd and why
3 the actions -- why you took the actions you did.
4 A. I apologize. October 23rd.
5 Q. 2000.
6 A. On that particular date, I did some more research that I had
7 been doing all during the summer concerning various names of
8 people that had followed me on Father's Day Sunday, I believe it
9 was June 22nd, 1998, looking into why their vehicles had been
10 following me. Apparently their vehicles had been taken in an
11 impound lot, I suspected, and had actually been used by federal
12 government people without -- of course, without the knowledge of
13 the actual registered owner.
14 Q. Well, you didn't know the name of Mike McNall on -- in June,
15 did you, Mr. Bell, during 1998?
16 A. June of 1998? No. Not -- I only learned Mr. McNall's name
17 when I ordered Ryan Thomas Lund's case file, criminal case file,
18 from Tacoma court in about September of 19 -- or of 2000, last
19 -- yes- -- last year. I ordered his case file and I found out
20 that Mr. McNall was the investigator involved in a case.
21 Q. But I was asking you why on October 23rd, 2000, you took any
22 action directed towards Mike McNall. Can you answer that
23 question?
24 A. Okay. I -- one of the things that I did, and, again, I
25 don't recall the specific date, but I --
662
1 Q. Try and focus on October 23rd, because that's the date in
2 the indictment.
3 A. Yes, I understand that.
4 I was aware of Mr. McNall's -- I was aware of Mr. McNall's
5 association with the Ryan Lund case. He was the person who was
6 listed as part of the search on Ryan Lund on -- on July 2nd,
7 1997. He was the person who wrote up the application for the
8 search warrant for the house of Ryan Lund. I -- he was there
9 with -- Ryan Lund was there when the search was done. Mike
10 McNall personally talked to Ryan Lund. A nine-shot New England
11 Arm -- Arms 22-caliber pistol was found at -- in Ryan Lund's
12 house. Ryan Lund was a four-time violent felon. Violent felons
13 are prohibited from owning firearms.
14 Q. Mr. Bell, I think we went over that yesterday -- or the
15 other day, and you pointed out he got a very good, extraordinary
16 sentencing. But I want to know why, on October 23rd, the
17 government says that you crossed over from Vancouver into Oregon
18 for the purpose of injuring and harassing Mike McNall. Is that
19 true?
20 A. No, absolutely not.
21 Q. Then why did you -- did you go into Oregon from Vancouver on
22 October 23rd?
23 A. October 23rd?
24 Q. Yes, sir.
25 A. I went over, and I may have done some shopping on the way.
663
1 Many people in Vancouver, Washington, where the sales tax is
2 seven percent, frequently go over to Oregon where the sales tax
3 is zero percent and they do shopping and they visit other
4 things. I used to live in a place called Aloha, Oregon. Most
5 of my friends are in Oregon. And I'm very familiar -- Vancouver
6 and Portland are sort of like basically the same big community.
7 Q. So you have friends who live in Oregon also.
8 A. Oh, yes. Many -- you know, a number of friends and --
9 Q. Did you do any investigative activities of Mike McNall on
10 October 23rd? Maybe is that the day that you went to someone's
11 residence that you might have thought was connected to him?
12 A. The last known address that I had for Mr. McNall was a place
13 that has been spoken of before. The address is one of the few
14 pieces of information I don't recall at the moment.
15 Q. Is that on the Clackamas Road, that address?
16 A. Yes. Yes, the Clackamas Road.
17 Q. We saying a picture of the long driveway and the two
18 houses.
19 A. Yes. Well, and the fact that I didn't see it from an
20 airplane, yes, that appeared to be the, the house.
21 Q. Mr. Groener and Mr. Andrews.
22 A. I didn't know the name Groener at the time. There was -- I
23 knew the name Andrews from my other research, and I believe
24 there was a reference to Andrews on the mailbox. I -- as I
25 recall it.
664
1 Q. Did you think Mike McNall lived there on October 23rd, 2000?
2 A. I didn't know. That was his last known address for me. I
3 wanted to speak to Mr. McNall about the Ryan Lund case, because
4 I did not know for sure which particular person had told Ryan
5 Lund to assault me that day back on November 25th, 1997. I felt
6 that, based on my vague understanding of government procedure,
7 perhaps Mr. McNall was Lund's handler. Lund was obviously a
8 government informant based on my paperwork, my research that I'd
9 done. But I didn't know whether he was the informant for Mr.
10 Lund.
11 Q. Okay. So that's why you --
12 A. Or --
13 Q. -- wanted to talk to him. But why --
14 A. Sorry.
15 Q. Now, you're trying to talk to him at home. Now, maybe
16 that's the thing that's causing some people to be disturbed.
17 Why did you want to talk to him at home rather than officially
18 at his office or on his telephone or maybe you from a pay phone,
19 something like that?
20 A. I didn't know for sure whether or not it was Mr. McNall. I
21 suspected Mr. -- he was the only named agent involved in the
22 search. I suspected Mr. McNall was part of -- or was the person
23 who talked to Lund. But it could -- the federal government is a
24 large organization with many, many people, and it could have
25 been somebody else. I did not know, if I had walked into, let's
665
1 say, the ATF office in Portland, I didn't know that that would
2 ring sufficient alarm bells to tell the person who was the
3 contact for Ryan Lund that Jim Bell was looking into the case.
4 I felt that it was possible, at least possible, Mr. McNall was
5 not the person guilty of telling Mr. Lund to attack me. And if
6 so, I felt it was vital to get ahold of him by means other than
7 to officially walk in or call in and leave telephone records. I
8 suspected my phones might have been bugged at that time based on
9 the fact that I was talking about on the Internet a lot of this
10 research. This was not a secret research. Dozens -- at that
11 point it was on the Internet, hundreds -- no, thousands of
12 people at that point had known. I had originally --
13 Q. The Cypherpunks list?
14 A. Yes, the Cypherpunks list. Many of my suspicions were
15 reported in about June or July of 199- -- or '98, of -- to the,
16 what's called the Cypherpunks list which you've heard of. A
17 thousand members at various times. It's also been written about
18 by a person who is not here, Declan McCullagh, a journalist who
19 testified a few days ago.
20 Q. Were you in communication with him prior to October 23rd
21 about this investigation?
22 A. Oh -- Mr. McCullagh? Yes. Frequently.
23 Q. So are you saying that your intent when you went to the
24 Groener, what we know as the Groener residence, was not to
25 endanger or harass Mike McNall, that was not the intent that you
666
1 had?
2 A. Absolutely not. I wanted to find out -- I wanted to ask
3 him, nicely, do you know about Ryan Lund, and -- I would -- and
4 I would tell him that I believed that Lund assaulted me on
5 government orders, and I would ask for him -- a comment, does he
6 know, and if he didn't know, I would say, "Could it have
7 happened without your knowledge, Mr. McNall?" and probably the
8 answer to that would be yes.
9 Q. Did you -- did you think you were committing a crime by
10 doing this?
11 A. No. I was trying to -- well, virtually, I was trying to
12 prevent a crime or to identify a crime. I was trying to find
13 out --
14 Q. What were you going to do with this information? If you
15 could establish your theory, what were you going to do with the
16 information?
17 A. I was going to talk to journalists. I was -- I already knew
18 about Declan McCullagh of Wired News. I would have relayed this
19 to John Branton of the Columbian who reported.
20 Q. Is that the guy who testified?
21 A. Who testified, Branton. And there were other people in the
22 Portland Oregonian that I was going to tell this material to.
23 My extensive research last summer was intended to support all of
24 my allegations, and I, I drove by addresses of vehicles -- of --
25 that were last registered owners of vehicles who were following
667
1 me and I knew the people involved didn't know what went on, but
2 I wanted to find out if there was a pattern to the vehicles that
3 had been following me on Father's Day Sunday 1997, and it turns
4 out there was. Despite the fact I wasn't even close to
5 Clackamas County on that particular day, June 22nd, 1997,
6 virtually all the suspicious vehicles that were following me
7 were registered from Clackamas County. I drove through Clark
8 County, Multnomah County, and Washington County, and only -- and
9 the vehicles that were suspicious were all registered,
10 surprisingly enough, in Clark County -- or Clackamas County.
11 And when I eventually did my research last summer, I was not
12 able to find even a single one of those vehicles at the last
13 registered address. I did not --
14 Q. Mr. Bell, let me ask you -- let me just ask you one other
15 question about the trip on October 23rd when you went to the
16 Groener residence. Did you go to the residence of a -- of a
17 Barbi and a Jeff Gordon? Did you go to that residence at all
18 that day?
19 A. At the time I didn't know -- I don't recall the specific
20 first name, but, yes, I did.
21 Q. You went to that residence?
22 A. Well, I think -- if -- other than the ambiguity involved, I
23 don't know. But I --
24 Q. Well, what I'm trying to find out is, did you take some
25 action towards them with the intent to -- to them or --
668
1 A. No.
2 Q. It says just Jeff Gordon, so I don't know which --
3 A. No.
4 Q. -- Jeff Gordon we are referring to, but did you focus on any
5 Jeff Gordon that day?
6 A. No. I was doing a lot of road trip research, and, again, I
7 had been doing it for many months, and that was just another one
8 of the addresses that I was looking into. I figured I would ask
9 the Jeff Gordon who happens to be here those very same
10 questions. But I --
11 Q. Did you go to any other destinations other than the Groener
12 farm residence?
13 A. There was a -- there was an address of an Eagle Creek,
14 Oregon -- I believe that was the name. I knew it was no longer
15 the address of the particular Gordon he is referring to in
16 Tualatin, Oregon.
17 Q. Okay.
18 A. But I was just being thorough about my research. I wanted
19 to -- in effect, I was trying to collect all the jigsaw puzzle
20 pieces so when I put it together I would eventually get the
21 whole picture. I did not have the whole picture. I was acting
22 as a one-man investigative agency with very severe limitations
23 on my ability to do this research.
24 Q. So whatever your purpose, you say it's investigative, it
25 wasn't to injure or harass, that was not your purpose?
669
1 A. No. I visited many locations last summer of people that I
2 had no intention of even contacting. People I fully were aware
3 were -- had no knowledge of this. I simply wanted to get all
4 the jigsaw puzzle pieces together so that I could show the
5 picture of what actually happened.
6 Q. Okay.
7 A. I did not -- I did not want to involve them other than to be
8 able to collect the data as to all of those vehicles that were
9 following me on Father's Day Sunday. At that time I was very --
10 well, I was being followed around on Father's Day Sunday 1998.
11 Q. Okay. Now, on October 31st, count 3 says that you used a
12 facility of interstate commerce for stalking. And the
13 government has introduced a piece of paper with some blue
14 writing on it, and there's also a copy that is black writing
15 that's a facsimile, and according to Jeff Gordon's testimony,
16 that was received at the IRS office -- and I'm not even exactly
17 sure where, perhaps Portland -- and it was in a response to a
18 letter that was earlier written to you. Now, do you know -- can
19 you speak to that?
20 A. I think you're referring to a fax. Yes, I think I recall
21 that.
22 Q. Do you want -- do you want -- was your -- did you send a lot
23 of faxes, or was that the only one? Did you send it -- let me
24 ask you that first. Did you send it?
25 A. Well, other than the fact you haven't shown it to me, I'm
670
1 recalling a particular fax that, yes, I did send.
2 Q. Okay.
3 A. I don't want to agree to a fax that I haven't even seen, but
4 I do recall a fax that I did send, yes.
5 Q. Did it relate to some items that had been seized from you?
6 A. Yes. It --
7 Q. And the return, it discussed about the return of them?
8 A. Yes. The government had had a lot of my property for the
9 preceding four years, almost four years, that was taken
10 originally on April 1st, 1997. As of that point, I had not
11 received back two computers, which I still haven't received
12 back, even as of today. And there was also a matter of four
13 guns that I had had on April 1st, 1997, and they, of course,
14 couldn't return it to me because at that point I was a felon,
15 but they -- but there is a procedure where I tell them to whom I
16 want them delivered.
17 Q. Is that where you said you wanted Mr. East to be able to be
18 your designee?
19 A. Yes. My friend Bob East, I was perfectly happy to give him
20 the guns. Yes.
21 Q. Okay. You don't have the guns yourself, do you?
22 A. No.
23 Q. Even when you were out, you never did get them back.
24 A. No. I've never -- I've never seen them since, since Bobby's
25 got them from them.
671
1 Q. Now, it says that -- so did you send a facsimile on that
2 subject matter? Without having to look for it right now, did
3 you send a facsimile from Vancouver to -- into Oregon for the
4 IRS office?
5 A. I had a phone number to which I sent the fax.
6 Q. Okay.
7 A. Where it actually went, whether the number was forwarded,
8 sent somewhere else, I do -- I have no knowledge for sure. I do
9 know, as I recall, that it was a 503 area code phone number.
10 503 is the area -- used to be the area code for years back for
11 all of Oregon. More recently it's been limited to the
12 northwestern corner, the Portland metro area and so forth. The
13 other area of Oregon is now 541, I think.
14 Q. Where were you physically when you sent that facsimile?
15 A. Standing in my basement in the largest room at the north
16 wall of -- standing in front of the fax machine.
17 Q. So you were in Vancouver and sent a fax to the 503 area
18 code?
19 A. Yes. Unless --
20 Q. So you don't -- so you don't take issue that whatever, that
21 that fax went interstate, or probably went interstate?
22 A. Telephone forwarding is very odd. I have the technical
23 background to understand that. When you call an 800 number
24 locally, it could go literally next door. You don't even
25 necessarily know where it went. I assumed it was going to go to
672
1 Oregon, but I obviously have no personal acknowledge how it
2 went, but it probably went to Oregon because of the 503 area
3 code.
4 Q. All right. Now, did you do that with the intent to put
5 someone, and I guess this would be Jeff Gordon or someone at the
6 IRS office, in fear of death or serious bodily injury?
7 A. No, I didn't.
8 Q. To him or to his family?
9 A. No, I didn't.
10 Q. All right. Would you comment on the message, then, because
11 the message says that you would like to either go by with you or
12 your designee --
13 A. Yes.
14 Q. -- to his office or maybe to his home.
15 A. Yes.
16 Q. And so some people might think that this is -- that this
17 needs explanation.
18 A. Okay, and I would be happy to supply an explanation.
19 I was talking to my attorney on another matter, an appeal of
20 the issue that I was convicted of a few years ago.
21 Q. That's Mr. Solovy?
22 A. Mr. Solovy.
23 Q. You have no problems with him?
24 A. None, that I'm aware of.
25 Q. All right.
673
1 A. Mr. Solovy. He had received communication from a fax, I
2 guess, and he sent me a copy of it, I guess, that said that if I
3 didn't pick up -- not me pick up, but have my -- those guns
4 picked up by November -- I believe it was November 1st, they
5 would be destroyed, on November 1st. Now, it didn't say this on
6 this particular fax. The fax that I received a copy of from Mr.
7 Solovy had actually been sent many months before, but I was in
8 verbal contact with Mr. Solovy, and Solovy said that he had
9 recently been told that if the guns weren't picked up by
10 somebody, my designee, they would be destroyed. Well --
11 Q. Now, you knew you couldn't have the guns yourself.
12 A. Oh, certainly, yes. I was a felon at that point, and I
13 still am.
14 Q. Okay.
15 A. I was convicted.
16 Q. So what was your purpose in sending the fax with the message
17 that it had on it?
18 A. My purpose was to -- well, my purpose was to inform the
19 people who were threatening to destroy my guns or -- guns, that,
20 yes, I do want -- I want them to be sent back and I'm accepting
21 the offer to have a designee do it. When I was getting ready to
22 write the message, I happened to notice that the date was
23 October 31st, 2000, which happened to be Halloween, and I made a
24 little joke that's been vastly overblown. And I wanted to make
25 sure that they were aware -- very graphically, because I only
674
1 heard about that on October 31st -- that I didn't want the guns
2 to be destroyed. I wanted them -- I wanted to arrange for their
3 return.
4 Q. All right. So that was your intent of sending a fax?
5 A. I wanted to make sure the guns didn't get destroyed, that's
6 right. They were aware that I was making provision to have them
7 sent or picked up by somebody. That somebody turned out to be
8 my friend, Bob East, the man who testified a few days ago, yes.
9 Q. All right. And count 4, it says that on November 3rd, 2000,
10 you traveled across the state line from Vancouver into Oregon
11 with the intent to injure or harass Scott Mueller.
12 A. That's right.
13 Q. This is the trip to Bend, Oregon.
14 A. I remember the indictment says that. Yes.
15 Q. Now, when you -- first of all, when you left Vancouver, was
16 your purpose to go to Bend? I mean, was that the purpose of the
17 trip?
18 A. In general, Bend, yes, that's true. It was a road trip. It
19 was -- my friend John Copp, who drove his own vehicle, and I was
20 inside of it, likes to go on long road trips. We usually go on
21 forest roads, but he likes to drive around and go camping and
22 such, so he and I -- I knew that he wouldn't mind a trip of a
23 hundred plus miles, and we both enjoy it, so, yes. The purpose
24 of going over there was to visit Bend. I hadn't been to Bend --
25 Q. Were you --
675
1 A. Sir, let me answer.
2 Q. I'm sorry.
3 A. I hadn't been to Bend for over ten years. I did a lot of
4 caving in the Bend --
5 Q. We discussed that the other day.
6 A. In the Bend area.
7 Q. The John Naro Caves, is that the name of it?
8 A. What's that?
9 Q. The John Naro Caves.
10 A. I don't recall that. There's a Lava River cave, there's a
11 Boyd cave, there's a -- there's a few other caves that I
12 frequently visited -- or in the mid '80s, I visited in Bend
13 Oregon. Southeast of Bend, Oregon, usually.
14 Q. What's important to this trial is, what was your intent
15 regarding visiting the Mueller residence or taking photographs
16 of the Mueller residence or writing down tab numbers? Was your
17 intent to injure or harass him?
18 A. No. No. My intent was simply to figure out why there were
19 get -- there were being odd problems with the Oregon DMV data.
20 Inconsistencies in names, inconsistencies, two people at the
21 same address. The reversed names.
22 Q. And when you got that information, that's the information
23 that you sent back to John Young?
24 A. Actually, I sent it to the Cypherpunks mail list, and I
25 believe at the time John Young was probably a subscriber to the
676
1 Cypherpunks mail list. I didn't specifically want to send it
2 back to him. I wanted -- there was an ongoing conversation, you
3 might say, on the Cypherpunks list and I was simply adding my
4 research to that issue.
5 Q. You mean this was just a piece of a thread of a larger
6 conversation that was going on?
7 A. A much larger -- well, a number -- you know, a number of
8 other people participated. John Young had said, I have an odd
9 address out of a government database for an organization called
10 ISTAC. It refers to somebody with a little letter cia, and that
11 seems rather unusual. And he wanted to know, does anybody know
12 about a -- if there is a CIA installation in Bend, Oregon.
13 And I just happened to have access to data, and I looked
14 into the -- what I knew, based on the databases of the Oregon
15 DMV. And I found odd inconsistencies, errors. Declan -- or the
16 name in the database was Deforest X. Mueller. Mueller. The
17 name in the Oregon DMV database was Scott Forest Mueller. There
18 was also a vehicle registered to a Forest Scott Mueller. At the
19 same address, there was two -- a man -- apparently a man and a
20 wife both named Ashe.
21 If I had just seen the CIA reference in the original thing,
22 I would have said, oh, you know, ho hum. But when I saying the
23 various inconsistencies in, in the DMV data, that peeked my
24 curiosity dramatically and that made me want to visit, take a
25 look, find out if this was actually a business or a residence.
677
1 It turned out it was a residence. It seemed rather strange that
2 any government person would be publishing his home address, as
3 if it were his business address, and that's basically what it
4 was.
5 Q. And then you took the photos and --
6 A. Yeah, I took a couple photos and -- at that point we visited
7 two addresses, took photos, and then we went to the top of Pilot
8 Butte or Hill in the center of -- now it's in the center of
9 Bend, it used to be on the edge of Bend, and I looked at the
10 city, which has grown dramatically in the last ten years. And
11 just -- at that point it was getting late. It was totally dark,
12 and John and I drove back, and he dropped me off at -- at my
13 residence in Vancouver, and I assume he went home.
14 Q. So you didn't contact Mr. Mueller personally?
15 A. No. And I had no intention of it. Even if I had seen
16 somebody in the, you know, in the driveway or the front yard of
17 these residences, I had no intention of even approaching them.
18 Because that wasn't -- I didn't -- well, I would have --
19 frankly, I was trying to avoid even the implication that I was
20 trying to bother these people.
21 Q. Okay.
22 A. It wasn't the person that I was concerned with, it was the
23 data that I, I found out, and I was trying to resolve, why is an
24 address labeled CIA in Bend, Oregon, and why did it appear to be
25 a residential address.
678
1 Q. So this is unrelated to the Mr. McNall and Mr. Gordon and
2 Ryan --
3 A. Totally and completely unrelated. This has nothing to do
4 with the Gordon/McNall thing.
5 Q. Okay.
6 A. It was something I did to check out a very curious set of
7 facts that I had managed to dig up.
8 Q. Now, on November 10th, count 5 says that you traveled across
9 the state line, again, with the intent to injure, harass Mike
10 McNall, and I -- I believe that on November 10th we've seen --
11 for that day we've seen a video of your movement, that you went
12 back to where Mr. Groener and Mr. Andrews live. Is that
13 correct?
14 A. Yes, that's right.
15 Q. What was your purpose of going back to that residence since
16 you knew that Mike McNall didn't live there?
17 A. Okay. I had a very specific purpose, and I also had a very
18 specific purpose --
19 Q. Or didn't you believe Mr. Groener the first time? Did you
20 think he was lying to you?
21 A. Please, let me answer the question.
22 Q. Okay.
23 A. This is involved, but, frankly, it makes sense.
24 I had visited there a few days earlier. I had talked to a
25 person who I didn't know his name at the time. It turns out to
679
1 be Mr. Groener. I believe he testified that I was there.
2 A few days after that, my residence was searched. I had
3 done, as far as I knew, nothing to justify to have my residence
4 searched.
5 Q. A few days after when, you mean after November 3rd but
6 before November 10th?
7 A. I believe that's -- again, I don't recall the specific
8 dates. I can recollect it, but --
9 Q. Is that the chronology, though?
10 A. Yes. But, please, let me continue.
11 All I had done is I had dropped by the residence and said,
12 I'm looking for Mike McNall, and -- well, I dropped by, and I
13 drove down this long private road. And the reason I drove down
14 the private road is because it's a rural area. It turns out
15 there's no place to park. There was a two-lane road, and there
16 was a driveway, and there was literally no place to park by the
17 side of the road. There's a big, not only a ditch, but a hill
18 there. It was like I couldn't park there without blocking the
19 road, and the road was very, very curvy there, and it would --
20 and I had to drive down to physically find a place to park. And
21 I was openly, openly trying to find Mike McNall. I had no
22 problem. I didn't want potentially somebody in the government
23 agency who had done something wrong to find out, but it wasn't
24 like I was trying to keep my research secret from the average
25 man on the street.
680
1 So I drove down, parked in front of the house. The driveway
2 was not marked. It was not no trespassing or anything like that
3 that I could see.
4 Q. You said private road. Did you see a sign that said private
5 road?
6 A. The only thing that I saying -- well, there was a piece of,
7 a flap of metal that was bent over onto itself. It might have
8 been a sign. I mean, you know how pranksters deal with things
9 like that. There was a -- there was a -- what looked like sort
10 of a nailed-on piece of metal, the flap was bent over on
11 itself. That's all I saying. I didn't try to bend back the
12 metal to see what the thing said. But it looked like it might
13 have at one point been a sign, but I didn't want to fiddle with
14 it because I didn't -- I mean, that wasn't my purpose for being
15 there.
16 I drove down and nobody was there. There were two houses.
17 I assumed that maybe it was -- one of them was a rental. I --
18 Q. You're talking about the past one. I'm asking you now about
19 -- you've explained that. But what about --
20 A. I don't think -- actually, I haven't explained what I'm just
21 explaining now. I have not had the opportunity to explain what
22 happened that day, and I would like to.
23 Yes. On that day, during -- or about November 3rd -- he
24 gave me the date -- I did drive down, park, knocked on the door
25 of the bigger house. There was no answer. I think there was
681
1 one vehicle in the garage. Not -- there was room for two, but
2 there was only one vehicle in the garage. Nobody was home.
3 I walked over to the smaller home, and it didn't really have
4 a clear front. It's hard to explain. The door didn't -- it
5 didn't have the porch thing or the porch arrangement to know for
6 sure whether that was the front. I knocked on the door that I
7 saying. There was no answer. I then walked around the back to
8 try to see if maybe I was knocking on the wrong door. I
9 wasn't.
10 So I came back, and just then apparently a man had arrived
11 in a car, or -- and he asked me what I was doing there.
12 Perfectly reasonable question under the circumstances. And I
13 said, "I'm looking for a guy named Mike McNall." He says,
14 "Well, I don't know." You know, "Who are you?" And I -- and I
15 said, "I'm an acquaintance. I'm an acquaintance." And he said,
16 "Well, I don't know. There used to be a guy who lived there,"
17 he said, "some time ago. I occasionally got the mail for him."
18 And I said, "Oh, okay. So he's no longer here," and "fine."
19 At that point, I said, "Well, okay." I think I may have
20 asked him whether he knows where McNall lived. He said he
21 didn't. So at that point I said, "Okay. Well, thank you very
22 much." And at that point I went back to my car, got in my car,
23 wrote down the fact that I talked to a guy at this particular
24 address.
25 Q. Is that the spiral notebook that we've heard about?
682
1 A. Yes, I believe I was writing on that spiral notebook.
2 Q. What was the purpose of you keeping a spiral notebook?
3 A. Well, despite the fact that I'm computer literate, I didn't
4 happen to have a laptop computer at the time, and so I had to
5 fall back on old tried and true methods. And spiral notebooks
6 work just as well -- I shouldn't say just as well. They work
7 pretty good.
8 Q. These are your notes of your research?
9 A. Oh, yes. Yes. I've been taking that -- that book had been
10 filled out with research I took -- I made as far back as May of
11 last year, yes.
12 Q. May. So shortly after your release you started the
13 notebook.
14 A. Yes, that's right. I basically looked into -- I collected
15 jigsaw puzzle pieces, in effect. Names, dates, places,
16 addresses. I recognize fully that most of these, many, many,
17 many dozens of addresses, if not hundreds of addresses, had no
18 relationship at all to anything. They were jigsaw puzzle pieces
19 to fill out, not only what I alleged, but the entire background
20 associated with it. People that wouldn't even have known about
21 this -- these things. People who might have lost a car, being
22 seized by the government, but was later on used to follow me,
23 let's say. I didn't know for sure these people didn't know, but
24 I strongly suspected they didn't know. But I wanted to be able
25 to document, I wanted to be able to find the vehicles later on
683
1 that had been following me and demonstrate that, no, the current
2 own -- the last registered owner was not the current owner, for
3 example.
4 Q. So if someone said that you weren't being accurate, you had
5 your notes there.
6 A. Oh, yes. I wanted to have a -- I wanted to fill out the
7 entire jigsaw puzzle with lots of data, and I wanted to be able
8 to explain it to people like you, and I poured over it for a
9 long time. That's the reason I'm able to tell you without any
10 notes whatsoever the names, dates, places, addresses involved.
11 I can tell you a number of registered -- well, let me --
12 companies, individuals.
13 Q. I just asked you about -- I wanted to get an explanation of
14 the notebook, and I think you have, but --
15 A. Yes.
16 Q. So, but that was back on the 3rd of November.
17 A. That's right.
18 Q. And I was asking you about November 10th. Now, between the
19 3rd and the 10th, was your house searched?
20 A. Yes. I think it was on the 6th. It was on a Monday. It
21 was definitely on Monday, and I think the Monday was the 6th.
22 Q. And did you feel -- what -- and was the search, the fact
23 that the search took place, did that have anything to do with
24 the fact that you went back on the 10th, or --
25 A. Oh, very much so.
684
1 Q. Will you explain that, please.
2 A. Because, of course, I racked my brain, I think -- I thought,
3 I hadn't done anything to justify having the house searched.
4 All I -- well, basically I visited some addresses and did a
5 little bit of research. And I thought, what could possibly -- I
6 knew -- I mean, I had no reason to believe that anything I had
7 done in Bend was a problem, and so forth. And I came to the
8 conclusion -- well, not really a conclusion, but the best
9 hypothesis, and I have a scientific background, as you know. My
10 hypothesis at this point is that the person that I met at the
11 Mike McNall residence actually knew Mike McNall or who he was or
12 where he worked, and as a cons -- and also would have known,
13 perhaps, that Mr. McNall was extremely secretive about his
14 address. Remember, I had gotten his address from a DMV database
15 -- actually, a few years ago DMV database. Mr. McNall's 2000,
16 year 2000 address, was actually the Federal Building in
17 Portland, Oregon. I knew his address from back when he was
18 willing to have his address listed in the Oregon DMV data list.
19 The person who ultimately, Mr. Groener, who testified to
20 have known that man presumably knew that Mr. McNall was an
21 extremely secretive person and didn't want to have his name
22 known, certainly not in the telephone directory and not even in
23 a DMV database. So I suspected that this particular man --
24 reasonably, he didn't do anything, I guess, wrong, or I
25 suspected he didn't, contacted the people he knew, perhaps
685
1 Groener directly, and he may have embellished the story a little
2 bit, made it sound a little bit more ominous than it really
3 was.
4 Or, I didn't really suspect that. I'm fully aware that
5 these federal government people dramatically overstate reality.
6 If you were to read the original complaint, you would -- it
7 would make me look awful. These people are masters of the half
8 truth and the implication and the insinuation. They will take
9 -- as I said once to somebody, they would turn Santa Claus into
10 a misanthrope, an angry old man, and they would turn the Grinch
11 into a saint. They could turn -- and they could do it without
12 officially lying because they know they can. They get away with
13 it every day. Every document that comes out of these people has
14 those --
15 Q. Did you feel that the search warrant was based somehow or
16 another on your visit on the 3rd of November, is that what
17 you're saying?
18 A. I felt it had to be. That was the only thing. I had -- I
19 had openly talked to this man. I had told him who I wanted to
20 see. This man asked me my name. I gave him my name, Jim Bell.
21 He asked me for my phone number, and I gave him my phone
22 number. No problem there. I had no problem identifying who I
23 was. I had an open reason to be there. I was trying to talk to
24 Mike McNall.
25 And, in fact, as an example of this misrepresentation, in a
686
1 later document I read that I had in fact asked the person, that
2 Mr. Groener -- or not asked, told him my name and address. And
3 the implication, the suggestion in the document by the
4 government was that I had, by telling him that, was I was trying
5 to intimidate him. No, no. I didn't tell him my name until Mr.
6 -- the person, the guy, Mr. Groener, asked me. I didn't intend
7 to bother anybody, including Mr. Groener. I just wanted to talk
8 to Mr. McNall. That's all I did that day.
9 Q. Okay. So you told us that your purpose to talk to him
10 wasn't to injure or harass, but what about your -- on November
11 10th, you were in Vancouver and you went into Oregon again,
12 didn't you, on a trip? We saying it on the screen.
13 A. Yes.
14 Q. What was your intent then to go back to the same place where
15 you knew he wasn't at?
16 A. Yes.
17 Q. That's my question.
18 A. Because I came to the conclusion that the search of my
19 residence was -- or could have been justified by that incident
20 or -- I don't even want to call it an incident, just that event
21 -- I was afraid that either the person that I had met had
22 himself distorted or embellished or he had talked to somebody
23 and the government people had pumped up the implications of what
24 I was doing there to make it sound vastly more serious than it
25 really was. And it wasn't serious at all. I was just looking
687
1 for that guy.
2 Q. So now you know, though, that you're not going to go see
3 Mike McNall. Why do you want to talk to Mr. Groener? Do you
4 want to ask him about it or something?
5 A. Because I knew that Mr. Groener, the per -- the person I
6 met, who later on I found out his name was Groener, knew the
7 truth about what had happened, the pre- -- that, I guess it was
8 on November 3rd. He knew that he had asked me for my name and a
9 phone number. He knew that I, I didn't act threateningly. He
10 knew that I, I left immediately after taking some notes. I
11 mean, you know, he knew this stuff, and I knew that he knew this
12 stuff. And I was afraid that his words had been distorted, and
13 I wanted this man, Mr. Groener, to talk to a reporter that I've
14 been talking to for a number of years, Mr. John Branton of the
15 Columbian. So --
16 Q. Now, there was three notes that said, "Please call John
17 Branton at the Columbian" with a telephone number, each in
18 baggies that were found at that place.
19 A. Yes.
20 Q. Is this -- is this how you wanted him to -- is this what you
21 did to get them to contact Mr. Branton?
22 A. Yes. I left the notes around 12 midnight, and let me
23 explain why I drove at 12 midnight.
24 It was about nine o'clock that I called John Branton of the
25 Columbian at his home address, you know. He actually lives very
688
1 close in the area to my residence. And I said, "Mr. Branton, I
2 believe that the government has pumped up what happened that day
3 as a justification for searching my house." I suspected the
4 government -- because I knew the government people liked -- they
5 like to arrest people on a Friday, I was afraid that on the next
6 day I was going to get arrested.
7 Q. Why do they like to arrest people on Friday, sir?
8 A. Keep them over weekends, incommunicado so they can't talk to
9 the media, talk to the press, talk to their family.
10 Q. Okay.
11 A. So I knew at eight o'clock or nine o'clock that night that I
12 needed to get the truth out. I needed Mr. Branton to be able to
13 talk to those people, or one of them at least, the one that I
14 met, talked to, and I didn't know particularly who it was
15 necessarily. I didn't know the name Groener at the time, you
16 see.
17 Q. So you didn't know which house particularly he was
18 associated to, is that right?
19 A. No, he didn't -- he didn't walk into a house. I had left
20 before he even physically walked into a house. I did not know
21 for sure what he had done or who he had talked to. He might
22 have talked to other people who lived there, and I figured I
23 would be thorough and I would leave a note on every car so that
24 everybody who leaves the next morning --
25 Q. Uh-huh.
689
1 A. -- would know that I wanted them to talk to John Branton.
2 You see, because it was so late and I didn't even know the phone
3 number of these people, Mr. Groener or the people who lived in
4 the other house, I couldn't very well go down there that night
5 at nine or -- well, ten o'clock. It would -- it would have
6 bothered them, of course. You don't want to have somebody show
7 up at your house at nine or ten o'clock. At the same time, I
8 couldn't have really go down at like seven -- six or seven in
9 the morning and wait for them to leave. I mean, I -- because
10 there was no place to park at the road. But I did need to
11 communicate with these people, very important, so that -- so
12 that John Branton could talk to them.
13 So I, I quickly concluded that the only thing, my only
14 option at that point, to get the word out quickly enough, was to
15 leave notes on the cars at night, you know -- I had no choice --
16 and say for them to call John Branton.
17 So I called John Branton. I said, I'm talking -- I'm going
18 to go leave people notes and I'm going to -- these people will
19 be calling you. I'm telling you now because that's -- you know,
20 I want you to know when these people call on notes left in their
21 cars, why they are calling and the circumstances involved.
22 Q. All right. Did you -- so your purpose for going to Oregon
23 on November 10th was not to injure or harass Mike McNall.
24 A. No. I was trying to get the truth out about what I had
25 actually done on November 3rd, 2000; that in fact I hadn't done
690
1 anything unusual to Mr. Groener. I hadn't acted threateningly.
2 I hadn't acted in an odd fashion. And I needed to get the news
3 people, the newspaper people, Branton, for example, to talk to
4 these people and verify that because I wanted to show that
5 whatever justification was used to search my residence on the
6 6th, it would be shown to be wrong.
7 Q. Now --
8 A. I was desperate to get the information out quickly. I knew
9 I may have only had a day more to do it. I didn't know I was
10 not going to be arrested the next day.
11 Q. You thought you were going to be arrested the next day.
12 A. Right. I knew it was possible that I might be. It turns
13 out, I think I was arrested on the next Friday after that.
14 Believe me, I'm well aware of that interesting tactic, that Mr.
15 Jeff Gordon is fully aware of. If he testifies, he will tell
16 you.
17 Q. Why -- okay. So, now, what was your intent of writing an
18 email to the Internet which the subject matter was Mr. Anonymous
19 say good night to Joshua, or Joshua say -- do you remember that
20 email --
21 A. Yes.
22 Q. -- that we've heard testimony about?
23 A. This is related to something that I did, which admittedly
24 was a mistake. I wanted to be able to demonstrate that the
25 government was doing close-in surveillance of my residence, and
691
1 I -- including physically mounting a very tiny camera on a house
2 nearby and wa- -- and watching. I mean not watching with the
3 eye, but with perhaps a motion-sensitive recording system, and I
4 will explain that later, what the implications of a
5 motion-sensitive recording system means.
6 Q. Why the email? Why did you send the email?
7 A. I felt that I was -- effectively, I was being electronically
8 stalked. That is to say, all my emails on the Internet were
9 being read. In itself that's perfectly easy for even you to
10 do. Not emails, but posts on public areas. Anybody can go to a
11 site called deja.com -- d-e-j-a -- and look for my Internet
12 address and find out every Usenet post I've ever posted. That's
13 not surprising or difficult, but I believed I was being watched
14 physically and electronically watched. I wanted to be able to
15 demonstrate to prove the electronic watching and the elec- --
16 and the physical watching, and I, I composed an idea on how I
17 was going to do that. I was going to provide evidence that the
18 camera would provide to the government, that they would have,
19 they would be desperately willing to use to -- and it would
20 reveal inadvertently in some method in the process of a search.
21 What I did was, I did something that was frankly wrong. I
22 visited an address, which has been previously mentioned, and I
23 looked in a mailbox and I saying a couple of what looked like
24 bills or statements or something. And I am not going to tell
25 you that I didn't take those bills. It had some information; I
692
1 wrote the information down.
2 Later on I went home, and I very theatrically stuck paper in
3 a fireplace insert in the -- in the back family room of the main
4 floor of my house, a wad of paper. Okay. I kneeled down, stuck
5 it in, and I lit it. This was adjacent to a large glass window
6 that faced out over the area that I believe the camera was able
7 to see. My thinking was this: They would eventually learn of
8 my email, they would eventually --
9 Q. The good night Joshua?
10 A. They would track down the fact that I had written down this
11 information. They would put two and two together, and they
12 would -- and if I was -- if my theory was correct -- and, again,
13 I'm a scientific person. I solve problems with the scientific
14 method. I concluded that they would inadvertently reveal the
15 fact that they knew that paper was burned on that night in that
16 fireplace insert, but they wouldn't openly come out and say it,
17 but they would do something very critical that would tell me
18 that in fact the information about the burning had gotten done.
19 It turns out that exact -- that exactly that happened.
20 During the search, the female agent, named Julie Anderson, I --
21 I later on found out it was Julie Anderson -- she asked my
22 mother totally out of the blue, apparently, despite the fact
23 that the warrant didn't mention it, she asked, "Could I look in
24 your fireplace and take a sample of what I find there?" My
25 mother, who had no knowledge of any of this, said, "Sure. No
693
1 problem." My mother later on said to me, "She did an odd thing
2 this morning. She asked to look, to take a sample of ash from
3 inside the fireplace."
4 At that point, inside of my head, bingo. I concluded that
5 that was the reason for looking in the fireplace, to find a
6 sample of this burned paper which they would have believed I
7 took that night.
8 However, a few weeks later in a phone call to my mother,
9 I made another tactical error. My mother had a stroke
10 three-and-a-half years ago due to some pressure involved with
11 the government's relationship with me, and I wanted to make sure
12 that she remembered the fact that Anderson had asked her for
13 ashes in the fireplace. And I said -- excuse me. [Witness
14 takes a drink of water.] I said to my mother over a monitored
15 phone line -- I knew it was monitored at the time -- but I
16 said to my mother, "Please remember that that female agent asked
17 you for the ashes or for the contents of the fireplace because
18 it's very, very important," I said to my mother. The fact -- "I
19 cannot explain to you why it's very important," but it was very
20 important.
21 Well, it was overheard, of course, by the people doing the
22 monitoring, and they came -- they did a similar amount of
23 thinking, and they concluded that the reason that it was
24 important to me is because they had been doing that surveillance
25 that I told you about and they had to have an explanation. They
694
1 devel- -- they needed it, an explanation as to why it was that
2 they looked in the fireplace.
3 If you recall, Mr. Jeff Gordon, a few days ago, talking
4 about stinky smoke coming out of the fireplace and the fact
5 that -- and he wanted to plant in your mind an explanation as to
6 why the government in a search would look into ash in a
7 fireplace. The real reason, I suspect, is because he was trying
8 to plant in your mind seeds of doubt that would make you say,
9 oh, the reason they took a sample of ash must have been because
10 of the stinky smoke coming out of the fireplace.
11 Q. Let me just ask you one last question, Mr. Bell. Why --
12 A. Mr. Leen, there's about six hours more of testimony. I
13 could give names, dates, places. People following me on
14 Father's Day Sunday. They were ...
15 Q. I'm sure the government will ask you about that --
16 A. Mr. Leen --
17 Q. -- on cross-examination.
18 A. -- Mr. Leen, you do not represent me at this point.
19 THE COURT: To the witness. To the witness.
20 THE WITNESS: I apologize.
21 Q. (By Mr. Leen) Why --
22 THE COURT: What's the question?
23 Q. (By Mr. Leen) Why do you believe that the government would
24 spend such vast sums of money to monitor you?
25 A. Why? I have no idea the amount of money that they've used.
695
1 I keep getting my words misconstrued. Even my own attorney
2 there, who I don't think represents me anymore due to the
3 threats. I have never said that they are expending vast sums of
4 money. For all I know, we're talking about a relatively tiny
5 number of people involved here. Certainly, by the size -- by
6 the standards of the government.
7 They're probably not expending vast sums of money, but I
8 believe that they decided that because of what I wrote many
9 years ago they were going to set up a system, a practice of
10 looking into me, because they couldn't -- they couldn't destroy
11 what I wrote. Do you understand? They could not destroy it.
12 On the Internet things last forever. The only -- they could
13 kill me, but killing me wouldn't have helped. It wouldn't have
14 done them any benefit to kill me. In fact, it would have made
15 things far worse.
16 What they -- the only thing they can conclude is, they
17 needed to discredit me very seriously. That was the only tactic
18 that they had left. They couldn't kill me, they couldn't
19 destroy my work. They had to discredit me. And when you want
20 to discredit somebody, you need to know a lot about them, you
21 need to do a lot of very serious research. You need to do a lot
22 of observation, and with that observation maybe they thought
23 they would eventually find something that Jim Bell could be
24 discredited with. And I believe that was the reason that they
25 have done virtually all of the surveillance they have done on
696
1 me.
2 Q. Do you think that you committed any crime?
3 A. Other -- other than the incident about the mail, ah, traffic
4 laws, I don't know.
5 Q. Do you think you committed the five crimes in the
6 indictment?
7 A. Certainly not those. It has later been hinted that my use
8 of Oregon DMV database information is inherently illegal. As of
9 1997, various laws were passed to prevent people from, I guess,
10 or -- relating to the use of that information. I used that
11 information to protect myself. I used that information to look
12 down addresses of cars that had been following me and found out
13 that the people who last owned the cars were not the people
14 involved. I used that information as a protective measure
15 against threats made.
16 We have at least four or five more hours of testimony where
17 I will relate names, dates, places of information I looked up.
18 I don't remember individual plates, but I remember names of
19 people, registered plates, incidents of following me on Father's
20 Day Sunday. I could point out -- I have drawn various maps last
21 week, being ready to relate to you in detail following incidents
22 that occurred: Following me in a car on Father's Day Sunday and
23 in the four or five days previous. Government agents that
24 showed up at odd places, at parks in Vancouver, Washington.
25 Various -- things that I took data on and later on verified last
697
1 summer.
2 If Mr. Leen stops this line of questioning at any time in
3 the next four or five hours -- and I hate to take up your
4 valuable time. There's a lot to say.
5 THE COURT: Mr. Leen, any other questions to this
6 witness?
7 MR. LEEN: No, Your Honor.
8 THE COURT: You may -- we will take a 15-minute
9 recess. The jury is cautioned, please do not discuss the case
10 among yourselves or with anyone else.
11 Please go to the jury room.
12 (Jury excused; 11:00 a.m.)
13 THE COURT: Anything to take up before the recess?
14 MR. LEEN: Well, Your Honor, we've come to a problem
15 because I really have nothing further to ask the defendant and
16 he insists that he has hours of more things to talk about. But
17 I -- if that's not a problem with the court, then I guess I have
18 nothing further.
19 THE DEFENDANT: It relates to my state of mind, why I
20 believe things were happening that I --
21 THE COURT: Mr. Bell.
22 THE DEFENDANT: Thank you.
23 THE COURT: Is the government ready to cross-examine?
24 MR. LONDON: We are, Your Honor, and I don't anticipate
25 that it will be very lengthy.
698
1 THE COURT: All right. Fifteen-minute recess.
2 (Recessed at 11:00 o'clock.)
3 (Jury not present.)
4 THE COURT: Ready for the jury?
5 Yes, Your Honor.
6 THE COURT: Bring the jury.
7 (Jury present.)
8 THE COURT: Let the record reflect the jury has
9 returned.
10 Cross-examination, Mr. London.
11 THE WITNESS: My microphone -- is my microphone on?
12 Thank you very much.
13 Before I am cross-examined, I would like to make a
14 statement.
15 THE COURT: Just a minute, sir. There's no question
16 put to you.
17 THE WITNESS: Okay.
18 THE COURT: What is the question, Mr. London?
19 CROSS-EXAMINATION
20 BY MR. LONDON:
21 Q. Mr. Bell, just before the break you were asked if you
22 committed any crimes, in your own mind you believed you
23 committed any crimes in this matter. I think that you said that
24 other than the theft of Jeff and Barbi Gordon's mail and
25 possibly the use of some DMV information, you don't believe you
699
1 committed any offenses in this case. Is that a correct or fair
2 characterization of what you said?
3 A. I would like to say that at this point I'm not represented
4 by counsel. Mr. Leen does not represent me. I'm wondering
5 whether it's proper legally and ethically for them to even
6 question me without representation. Mr. -- an attorney is --
7 THE COURT: Mr. Bell, do you understand what the
8 government just asked you?
9 THE WITNESS: Yes. But I want to explain --
10 THE COURT: Do you understand it?
11 THE WITNESS: I'm not -- I will voluntarily answer some
12 questions from the prosecutor because as a jury you have a right
13 to hear answer -- many more answers than they are willing to let
14 you hear. But at the same time, I'm not waiving my Fifth
15 Amendment right against -- because I do not have representation
16 in this trial. Normally when you think of testimony,
17 cross-examination, there's a guy over there who is supposed to
18 basically look out for my rights. That -- Mr. Leen simply does
19 not fulfill that function --
20 THE COURT: Mr. Bell.
21 THE WITNESS: -- in this courtroom.
22 THE COURT: Mr. Bell.
23 Will the jury please go back to the jury room.
24 (Jury excused; 11:20 a.m.)
25 THE COURT: Mr. Bell, do you intend to answer the
700
1 questions put to you by the government?
2 THE WITNESS: I intend to answer voluntarily, but
3 without waiving my Fifth Amendment rights.
4 THE COURT: I didn't ask you that.
5 THE DEFENDANT: I am not a lawyer, sir. I do not know
6 legal ethics questions. I do not know whether my position --
7 even my position here is proper and ethical and -- under the
8 circumstances. I'm a legal quagmire here. I have no formal
9 legal training. I haven't been to a day of law school. I do
10 not know the legal circumstances I'm finding myself in at this
11 very moment.
12 THE COURT: After that, do you intend to answer the
13 government's questions?
14 THE WITNESS: I intend to voluntarily answer some
15 questions of the government.
16 MR. LEEN: Your Honor, the defense would move for a
17 mistrial.
18 THE COURT: A mistrial will be denied.
19 MR. LEEN: May I renew my motion that the defendant be
20 -- that we adjourn and that the defendant be examined
21 mentally?
22 THE COURT: That motion will be denied.
23 MR. LONDON: Your Honor, I'm going to move that if the
24 defendant does not answer all of the government's questions on
25 cross-examination, then his testimony on direct examination be
701
1 stricken and the jury told to disregard anything that he said.
2 THE WITNESS: I believe that's improper since I'm not
3 represented at this point, sir, but that's a vague legal
4 question that I don't really understand.
5 THE COURT: Bring the jury back.
6 MR. LEEN: May I move to withdraw again, Your Honor?
7 THE COURT: That will be denied.
8 (Jury present; 11:24 a.m.)
9 THE COURT: Let the record reflect the jury has
10 returned.
11 Next question, Mr. London.
12 Q. (By Mr. London) Mr. Bell, I'm going to ask the question
13 again with -- again.
14 At the end of your direct examination you told Mr. Leen that
15 you believed you committed no crimes in this matter except
16 possibly your use of certain DMV information and the theft of
17 mail from the Gordons at 8300 Southwest Chelan, Tualatin, is
18 that correct?
19 A. Under coercion I do answer this question. I believe he's
20 mischaracterizing exactly what I said. I didn't say I had
21 specifically violated laws. I referred to, for example,
22 database use as being an alleged issue. I believe it's a First
23 Amendment issue. I do get to speak. I have a right to protect
24 myself with database information, particularly in the outrageous
25 treatment that I've been gotten -- been given.
702
1 But basically, I'm not aware of any other -- anything I may
2 have done wrong.
3 Q. Mr. Bell, a few moments ago, you said that you used DMV
4 information, data, as a protective measure -- those were your
5 words, were they not? -- as a protective measure for the purpose
6 of tracking down cars that you believed --
7 A. Well --
8 Q. -- were following you --
9 A. -- I did --
10 Q. -- isn't that correct?
11 A. I did research in the DMV data for the purpose of
12 identifying evidence in a long pattern of -- of elec- -- of
13 following and surveillance that I had received over a, a
14 substantial period of time. Yes, I did that.
15 Q. And do you recall saying that you did this as a protective
16 measure.
17 A. It was frankly in self-defense. I needed to know who these
18 people were, or more accurately, whose cars they were and why it
19 is they all came from Clackamas County and why it is that they
20 all happened to be engaged in a road following campaign against
21 me on Father's Day Sunday 1998, yes.
22 Q. So whether it was as a protective measure or in
23 self-defense, as you're saying now, can you please explain to us
24 how or why you had to protect yourself or defend yourself
25 against Scott Mueller in Bend, Oregon?
703
1 A. I've never claimed that Scott Mueller had anything to do
2 with these other issues. In fact, I specifically recall saying
3 to you that has nothing to do with the other two instances. I
4 was simply checking out a curious database thing. It was a day
5 road trip. It was interesting. I got to see Bend after ten
6 years. Mueller, Mr. Mueller, had nothing to do with it.
7 I am sorry that Mr. Mueller got listed in a government
8 database as -- letters CIA associated with him. I was checking
9 out a curious sequence of data to find out the truth, and I was
10 willing to go all the way to Bend to check out these curious
11 database results that I found.
12 Q. Mr. Bell, you didn't just check out this information. You
13 returned from your trip from Bend. You got on the Internet, and
14 about three o'clock in the morning, you posted all of Mr.
15 Mueller's personal information to the Cypherpunks site. You
16 answered John Young, and you announced that you were outing Mr.
17 Mueller as a CIA agent. Isn't that correct?
18 A. That's hyperbole. The fact is, I hadn't outed anyone. The
19 original data was presented in the government database. I was
20 checking out, with the information I had, the question of
21 whether or not that original information was somehow accurate.
22 I over -- I certainly overstated the case. I wasn't the one
23 who revealed the address or the odd name or anything. I --
24 vaguely, I was bragging a little bit. I, I had gotten
25 information that indicated that there was name problems with DMV
704
1 data. Yeah, I did say I outed a C -- CIA agent. If I was
2 talked to by a journalist, the journalist would have said, Mr.
3 Bell, what you really should have said is I outed a suspected or
4 a possible or an alleged or a, whatever, CIA person. That would
5 have been far more accurate. I apologize for the wording
6 error. It was sort of a joke at that point, unfortunately.
7 Again, I'm sorry that Mr. Mueller had his name listed with
8 the letters CIA. Not his name, but Deforest X. Mueller, which
9 is sufficiently similar with his own address to make one think
10 that there was a problem there. That's what I was doing.
11 Q. You're sorry now, but, Mr. Bell, you told the jury just a
12 few minutes ago in your direct examination that once something
13 is on the Internet, it's up there forever, isn't that correct?
14 A. That's true. And the original messages that referred to the
15 government database entry for that particular person was there
16 forever as well. The address was there forever. Deforest X.
17 Mueller, that name was there forever.
18 Literally, anybody could have done the same research that I
19 did. Nothing that I added made -- did anything to stop the
20 release of information that had already occurred. The original
21 mistake, frankly, was made by probably somebody playing a joke,
22 entering information into a government database somewhere, and
23 that's the reason for the confusion.
24 I did not, and do not, have anything against Mr. Mueller. I
25 wonder sometimes why his vehicles are registered under odd
705
1 names, like Deforest Scott Mueller, in addition to Scott
2 Deforest Mueller, and why two other people were listed as being
3 at his address. That was very curious. I'm still curious about
4 that. But I have never felt that Mr. Mueller -- I have never
5 felt badly toward Mr. Mueller. Before he testified, I had never
6 met Mr. Mueller. I was simply checking out information.
7 Q. Mr. Bell, how is it any of your business? Why don't you
8 tell this jury why it is any of your business to take personal
9 information from Mr. Mueller, whether it's erroneously
10 transmitted to you in the first place or not?
11 MR. LEEN: Objection --
12 Q. (By Mr. London) To go --
13 MR. LEEN: -- Your Honor. Argumentative.
14 THE COURT: You may ask the question.
15 Q. (By Mr. London) Why did you appoint yourself the outer of
16 Mr. Mueller without checking to make sure that you had it
17 right? Did you call the CIA and say, "Is this one of your
18 agents?"
19 A. Are you going to let me --
20 MR. LEEN: Objection, Your Honor.
21 A. -- answer the first question before --
22 MR. LEEN: Objection, Your Honor. He's asking -- he's
23 not asking questions --
24 THE COURT: Back up.
25 MR. LEEN: -- he's making statements.
706
1 THE COURT: Back up, back up. What is the question,
2 specifically?
3 Q. (By Mr. Leen) Why was it any of your business to out Mr.
4 Mueller or anyone else on the Internet as a CIA agent?
5 A. Business? That's not my business. I, I mean, if you use
6 the term "business" literally, it's not like a money-making
7 opportunity. I was curious about an odd report of an odd
8 database entry.
9 People do things for hobbies. Some people collect stamps,
10 some people collect coins, some people play golf. People on the
11 Internet do things for other people. If I wanted to find out
12 about something, I would put a message on the Internet, and I
13 would say, "Does anybody know about this?" I have done many of
14 that. I have also answered questions in technical areas that I
15 know about -- chemistry, electronics, computers and such.
16 People on the Internet do that kind of thing for each other.
17 When somebody reports an odd database entry, I was motivated
18 to check it out because I had access to data that could be used
19 to check it out. Something that relatively few people would
20 have been able to. Why did I do it? I was curious. I was -- I
21 was mystified, as well as the person who originally posted the
22 message on Cypherpunks, Mr. John Young, the person who testified
23 last week. That was what I wanted to do. I was curious.
24 Q. Let's talk about your access to some of those databases. In
25 fact, you got some of these DMV registration records from Scott
707
1 Beketic, correct?
2 A. The first data disk I bought from -- I believe you got the
3 name wrong. His name is actually Mike Beketic. He may have a
4 middle name of Scott, I don't know.
5 Q. Mike Beketic.
6 A. Yes. He goes by the name Mike.
7 Q. Right. Let's -- and you got some of this information from
8 him, correct?
9 A. Yes. And the first database disk I ever bought from Mike
10 Beketic was back in about 1994 or '5, I believe.
11 Q. But you promised Mr. Beketic, did you not, that you were not
12 going to use this information for anything other than commercial
13 purposes, correct?
14 A. No, I didn't say that.
15 Q. Mr. Bell, four years ago you got in trouble because, among
16 other things, you were attempting to harass and intimidate IRS
17 officers.
18 A. No, that's not true.
19 Q. Well, Mr. Bell, do you need to look at the transcript of the
20 plea colloquy from 1997 when you told Judge Burgess --
21 A. Yes.
22 Q. -- that that's exactly what you were doing?
23 A. I received a death threat indirectly communicated by a
24 person named Valdez Maxwell, who was very apologetic. He is not
25 the person involved. He didn't -- he overheard something on
708
1 about June 15th, 1997. He was talking to some government
2 investigators. He had a problem himself with the IRS. This was
3 at Pierce County Jail. And he communicated a death threat to me
4 that said that I had to cooperate with the government, and that
5 included accepting in a plea agreement the government
6 investigators didn't like, but it was the best thing they could
7 get. So I pled guilty to a number of things that I didn't do.
8 There were a couple of things that -- one thing that I did, one
9 thing that was very arguable, but there were I think at least
10 two or three others that I didn't do, and this man is referring
11 to that particular thing.
12 Q. Mr. Bell, are you trying to tell this jury that there was no
13 basis for your guilty plea to obstructing the internal revenue
14 laws by collecting home address information for John Treosti,
15 the case worker assigned to your collection matter by IRS, Joan
16 Luethe and Lynn Rose, IRS investigators with whom you had
17 contact? Are you telling the members of the jury --
18 MR. LEEN: Objection, Your Honor.
19 Q. (By Mr. London) -- that there was no basis for your guilty
20 plea on those facts?
21 MR. LEEN: Your Honor, can I ask that the prosecutor
22 ask a question, not --
23 THE COURT: Do you understand the question?
24 THE WITNESS: Which one?
25 THE COURT: Any of them.
709
1 THE WITNESS: I'm sorry, my attorney started talking
2 when I --
3 THE COURT: Do you want him --
4 THE WITNESS: He isn't my attorney, but --
5 THE COURT: -- to repeat it again?
6 THE WITNESS: When Mr. Leen started --
7 THE COURT: Mr. Bell, do you want the question
8 repeated?
9 THE WITNESS: Yes, please.
10 THE COURT: One at a time.
11 Q. (By Mr. London) Was there any legitimate basis for your
12 plea of guilty in 1997 when you told Judge Franklin Burgess, in
13 the room next to this one, that you had been attempting to
14 intimidate IRS Officers John Treosti, who was assigned to your
15 collection matter, Lynn Rose, and Joan Luethe?
16 A. Much of that plea was -- was basically fictional. There
17 were certain small items which reflected the truth. Okay? But
18 a lot of it was invented or was expanded on dramatically and
19 they added things that shouldn't have been added, and I agreed
20 to it because of the threats, because I was told that it didn't
21 matter, if I was guilty of one thing, they could just add as
22 many things as they wanted.
23 At the time, I was -- I was extremely depressed because of
24 the threats, and frankly, I, I agreed to it. I agreed to it --
25 Q. Mr. Bell, the judge asked you at the time whether your plea
710
1 was voluntary and whether in any way it had been coerced. Do
2 you recall that? If you don't, why don't you look at the
3 transcript, because --
4 A. No, I remember well what happened that day. I had been
5 given a pill the previous day. I was groggy and sleepy. And I
6 could still understand what was going on in the courtroom.
7 Okay? I do not recall what the drug was. I, I had asked for
8 something for minor pain. They didn't tell me what they were
9 going to give me. And maybe it helped for the pain, I don't
10 know, but I was groggy and sleepy the next day.
11 Did I -- did I answer what -- that I was not coerced? Yeah,
12 I said I was not coerced. Well, frankly, I -- if I hadn't been
13 coerced badly enough to agree to things that I didn't do or
14 things that were vastly over -- overstated, I certainly wasn't
15 going to tell the truth when I was asked whether I was coerced.
16 That wouldn't have made sense. And I was extremely depressed
17 during those times. Very depressed because of the threats that
18 had been made to me a few weeks earlier.
19 Yes, the plea exists. Yes, it says what he says it does.
20 No, it was mostly fictional. There were nuggets of truth in
21 it. Mostly it was fictional. It was written by government
22 people before they even talked to me about the plea. They wrote
23 the plea. They asked me to sign it and agree to it. I did not
24 say anything to them to help them write that plea. They wrote
25 the plea that they wanted me to sign. No editing was allowed or
711
1 possible by me. I was not given the option of striking out
2 things that were not accurate. They didn't give me that option.
3 Q. Mr. Bell, Exhibit 51 is not the plea agreement. It is the
4 transcript of your -- question and answer between Judge Burgess
5 and yourself.
6 A. Yes.
7 Q. Judge Burgess, in that colloquy, as we say, asked you if the
8 facts as stated in the plea agreement were correct, and you said
9 to all of what's been alleged, that's true. You were also asked
10 about whether your plea was voluntary, and you said it was. Are
11 you here now today to say that that's a nugget of fiction?
12 A. No. He's accurately saying that then, under threat, I did
13 say the things in that, that plea agreement were true. He's
14 correctly relating the fact that I did say in court that I
15 hadn't been threatened to agree. Both of those, those
16 statements by me were false. Yes.
17 Q. Did Ryan Lund threatened you? He said you had better take
18 the deal, correct?
19 A. Those were approximately his words after he struck me --
20 Q. And then this morning --
21 A. -- a few times.
22 Q. -- you said that Mr. Leen threatened you, correct?
23 A. He -- more accurately, he communicated a threat and he added
24 some threats of his own, yes. He threatened to cut me off after
25 30 minutes if I discussed the Valdez Maxwell situation, a person
712
1 that he has legal dealings with a few years ago. He also
2 threatened if I mentioned the Billy Martin incident in Kitsap
3 County Jail a little bit later after that. And I believe one --
4 and other things that he didn't want to come out in court, or he
5 didn't want to come out in court was the following, on the
6 following -- Father's Day Sunday, 1998, and four or five days
7 previous, various odd incidences of surveillance of me. They do
8 not want me to speak about those things, despite the fact that I
9 have about four or five maps there that I would be happy to
10 explain, a very odd incident that occurred on Father's Day
11 Sunday.
12 Q. Mr. Bell, on Friday we were talking, Mr. Leen was asking you
13 about Assassination Politics, and you described it, and I quote,
14 at least half of a joke.
15 A. No, the title was half of a joke. Assassination Politics.
16 Q. All right. It would be like the sable rabbler, correct, to
17 remind the other guy that he's potentially a target? Do you
18 remember saying that?
19 A. The term saber rattling has been around ever since there's
20 been sabers, you know. The knight, or whatever, shaking the
21 saber. That's traditionally referred to -- when, for example,
22 we do a fly-by with a military plane next to China, as happened
23 recently, that's a very mild form of what's called saber
24 rattling. Showing the flag.
25 Q. Mr. Bell, you said that the purpose of handing out the
713
1 diskette at the common law court meetings was to try to get some
2 discussion or some feedback on this theory that you had of
3 Assassination Politics, isn't that correct?
4 A. Yes, I said that. True.
5 Q. Now, in Exhibit 42, which was your email to S. Wills, dated
6 January 31st, 1997, do you remember saying the following: "Keep
7 in mind that in a smoothly functioning commonlaw-court system,
8 the vast majority of offenses will be dealt with purely with
9 fines; very few people" will actually -- or "would actually get
10 killed, and those people would be the ones who were really
11 serious offenders or repeat offenders. . ."
12 So the idea of assassination politics wasn't simply sable
13 rattling, was it, Mr. Bell, it was that people actually were
14 going to get killed, isn't that correct?
15 A. No. I was describing the theory of how society would run if
16 this -- my essay idea was implemented.
17 Q. And you described, in fact you said it was sort of --
18 A. Could I answer the question, sir? I am not done answering
19 the question.
20 I also testified previously, on Friday, that this would be
21 at least ten or twenty years in the future. I did not know.
22 This is speculation on my part. I was discussing a theory.
23 Q. And you talked about putting dictators around the world out
24 of business, correct?
25 A. That's one of the effects, yes. The Pol Pots of the world
714
1 that kill Ugandans.
2 Q. You didn't put Pol Pot on trial in the Multnomah County
3 Common Law court system, Mr. Bell.
4 A. No, I didn't participate in --
5 Q. You put tax collectors and IRS agents --
6 A. Sir, let me answer the question, please.
7 Q. The question was not done being asked. You did not put Pol
8 Pot on trial, did you, sir?
9 A. I didn't put anybody on trial.
10 Q. You were a participant --
11 A. The incident that he's alleging.
12 Q. -- in the common law court, were you not?
13 A. I attended a small amount of meetings. Mr. Wilson himself
14 testified to maybe three. I don't recall specifically whether
15 it was three or two or four, but it was about that number. The
16 only participation I did was I acted as a juror on one case.
17 Other than that, I was there to talk to libertarian friends that
18 I -- who also went to that meeting, to see what was happening,
19 to look into potential infiltration of the group, and, well, to
20 engage my weakness of eating pizza.
21 Q. Exhibit 14, the May 5th -- May 5th, 1996, email to
22 Cypherpunks. You said, "Maybe the most useful task we could
23 accomplish would be to identify them for later targeting." Do
24 you remember writing that?
25 A. Well, it's been five years, but it sounds like something I
715
1 might have written during that time frame. Probably I wrote
2 it.
3 Q. Okay. Exhibit 15, the May 23rd, 1996, email to the
4 Northwest Libertarians on Operation LocatIRS. Quote, "I want to
5 propose a project that the LPO . . . and Oregon libertarians can
6 do, to really help push freedom and shake up the statists. I
7 propose that the name and address of every IRS employee in the
8 state of Oregon be identified and located and published."
9 Did you write that?
10 A. That sounds like something I wrote during that time frame,
11 yes. But it's been five years. As far as I can tell, that's --
12 that's probably an accurate recollection.
13 Q. And "It would also act somewhat as a deterrent to those same
14 statist agents: These people don't know exactly what we intend
15 to do with this information, or what we (or others) may decide
16 to do in the future. They can well imagine a breakdown in order
17 sufficient to allow people armed with such a database to....
18 well, you get the idea. . . . We needn't concern ourselves with
19 these future issues. It is very likely that these people will
20 be far more pliable and less abusive in the future if they are
21 well-known."
22 Does that sound like something you wrote?
23 A. Again, other than the fact it was five years ago, that
24 sounds vaguely familiar.
25 Q. "We should take advantage of the advent of computers and
716
1 databases to do this. I already have a fresh copy of the Oregon
2 state DMV database, and as I understand it each registered
3 political party in Oregon is entitled to get, free, a copy of
4 the voter's registration database from every county. The
5 combination of these two databases, plus the more common
6 two-disk CDROM telephone directories of the US, should make it
7 relatively easy to find somebody once a name is identified."
8 Do you remember writing that?
9 A. You mean like the particular day? No. Does that sound like
10 something I wrote? Yes. Did I probably write it? Yes. I
11 probably wrote it, yes.
12 Q. All right. Exhibit 17, the May 23rd, '96, email to avatar.
13 Subject, "Operation LocatIRS."
14 "Remember, however, that the level of abusiveness that the
15 average IRS agent thinks he can get away with is strongly
16 determined by what he thinks may happen in the future if he's
17 called to account. Morally, can we forgo a system that has the
18 prospect of cowing the IRS into at least a certain degree of
19 submission?"
20 Are those your words?
21 A. Again, its sound like something I probably wrote. I don't
22 doubt that that was one of the messages that I sent. That's --
23 Q. Exhibit 18, the May 23rd, '96, email, again to avatar.
24 Subject, "Operation LocatIRS."
25 "Their discovery that they are being catalogued and indexed
717
1 may have a substantial effect on them. That, indeed, is the
2 goal."
3 Not your words?
4 A. That sounds -- well, again, you're picking out five-year-old
5 emails, but in general, that sounds like something that I would
6 have written during that time frame, yes.
7 Q. All right. Exhibit 29, that's an October 24th --
8 A. My -- excuse me. My microphone -- I'm sorry, it was turned
9 down. Thank you.
10 Q. Exhibit 29, an October 25th, '96, email to talltom,
11 Operation LocatIRS.
12 "Having a copy of the Oregon DMV database, it occurred to
13 me months ago that one useful project would be to identify and
14 locate all the Oregon IRS agents. The way I see it, they will
15 tend to be less aggressive if they think that many people know
16 where they live."
17 Your words or not?
18 A. It certainly sounds like something I would have said during
19 that time frame, yes.
20 Q. All right. We heard Exhibit 34, the tape made at the common
21 law court meeting on January 9th, '97. And you were overheard
22 on that tape saying, "it might be a little more psychologically
23 effective if they were to receive their notices in their"
24 mailbox -- "mailboxes at home." Do you remember saying that?
25 A. Yes. After I had consumed one large pitcher full of beer, I
718
1 think I did say that.
2 Q. You say that sounds -- this all sounds like something that
3 you wrote at the time. But, in fact, all of these emails
4 predated your pleading guilty and going to prison, and going to
5 prison didn't really stop you, did it? I turn to your --
6 A. Are going to let me answer the "didn't stop you" or --
7 Q. Go ahead, answer.
8 A. Well, I object to this kind of questioning, the manner in
9 which it's being delivered.
10 Didn't stop me? He has to be more specific about what he
11 was doing -- what he's asking about stopping me. He obviously
12 wants to stop me in general terms. I think you ought to be more
13 specific about what the "stop me" portion of it means.
14 Q. Mr. Bell, even from prison, in June -- June 22nd,
15 specifically, of 1998 -- you were still determined to collect
16 home address information on federal officials, were you not?
17 A. After having been threatened at least a couple of times, and
18 then -- and, frankly, stalked, followed, yes, I was interested
19 in finding -- not only government people, but I was interested
20 in finding out registration information for vehicles that were
21 following me, even when I knew that the last registered owner
22 was probably had nothing to do or no knowledge of the
23 following. I was collecting a lot of jigsaw puzzle pieces to
24 try to find out what they were up to, and I believe I found out
25 what they were up to, but they do not want it to come out, and
719
1 that's why Mr. Leen cut off the -- his questioning of me, which
2 he did, virtually, as the threat came yesterday.
3 Q. Mr. Bell, Exhibit 60, June 22nd, 1998, from prison, you
4 wrote your friend Greg Daily: "I can hunt them down just as
5 well on the geography of the English language as the streets of
6 Portland." Does that ring familiar to you?
7 A. Yes, it sounds like hyperbole, or I was writing a rather
8 florid letter. But, yes, I believe I recall that. I believe
9 that was a handwritten letter. I didn't have access to a
10 typewriter at the time. I saying it in among, oh, 3,000 pieces
11 of discovery information that I haven't been given the
12 satisfactory opportunity to look at yet. And I'm not -- I'm
13 being denied the ability to look at my notes that were sealed in
14 an envelope. So I'm working on memory here. That was one of
15 about 3,000 pieces of paper that I looked at in discovery about
16 four or five days ago. I've been denied access to it since
17 then. More than four or five days ago. Six, seven.
18 Q. Just about a year ago, as you were preparing to get out of
19 prison or getting out of prison, you gave an interview to Mr.
20 Declan McCullagh of Wired News. Do you remember giving that?
21 A. I probably talked to Declan McCullagh a number of times.
22 Q. And you knew that what you were saying was very possibly
23 going to be reported in one of his articles and on the Internet,
24 correct?
25 A. Oh, absolutely. It was done over a monitored telephone
720
1 line, taped. It was in prison, of course, and they do that.
2 They tape phone calls from inmates outside. All the inmates
3 know. It's not -- it's actually posted. They specifically say,
4 in some prisons, "We monitor and record this information."
5 That's right. And they warn us ahead of time. When we arrive
6 there, they say, this material is being taped, phone calls are
7 being taped and the mail is being monitored, specifically for
8 two reasons. One of which is security of the institution, and
9 the other is protection of the public. Those are the two things
10 they use that information for, they claim.
11 Now, whether they -- they don't disclose whether they use
12 that information for anything else. They don't tell us that
13 it's being used to collect evidence in a trial. But it appears
14 that they are doing -- they did that, and they didn't warn
15 people about that.
16 Yes, I recall that very clearly.
17 Q. Mr. Bell, I mean, you spoke to Mr. McCullagh fully
18 understanding that what you were saying to him, wholly apart
19 from any monitoring of the prison telephone lines, was very
20 possibly, very probably going to appear in one of his articles,
21 correct?
22 A. Oh, absolutely. I knew that Declan McCullagh was in fact a
23 journalist for Wired News. I had probably talked to him -- I
24 don't mean talk, physical voice; I'm talking about email -- for
25 year -- I don't know how many years. I don't know how far back
721
1 our communication goes, but, yes, a long time. And I fully was
2 aware he was a journalist, and I was talking to him as a
3 journalist.
4 Q. And he quoted you, "If they continue to work for the
5 government, they deserve it. My suggestion to these people is
6 to quit now and hope for mercy."
7 A. Yes.
8 Q. Did you say that to him?
9 A. That's a very accurate quote of what I said. Declan did an
10 excellent job. I have heard no quote of Declan's that did not
11 sound to be precisely the way I said it, to the extent of my
12 recollection. He --
13 Q. Exhibit 108, May 28, 2000, email to mkepp. It says, "I
14 guess I'm 'intimidating' ALL their agents! Have you read my
15 essay yet?"
16 Do you remember saying that?
17 A. I believe that sounds like something I said. Well, whether
18 it was --
19 Q. The essay, would that have been a reference to Assassination
20 Politics?
21 A. Well, will you -- keep in mind, when you say "said," there's
22 verbally said and there's written said.
23 Q. Okay.
24 A. So let's be -- let's be clear about this.
25 That was probably an email message. My response to them, or
722
1 -- would have been written. But, yes.
2 Q. Exhibit 110, July 23rd, 2000. You wrote in an email to
3 someone named Glover, "I am going to DESTROY these suckers."
4 Destroy in all caps. "Read my essay again."
5 Do you recall sending that email.
6 A. Yes. But given the fact that I've been threatened multiple
7 times, followed and such, frankly, I was feeling rather unhappy
8 about these people forcing me to accept a phony plea agreement
9 that had been violated, virtually every aspect of it that was
10 written, multiple times. I was -- a person would have to be --
11 not normal to be very unhappy about these people and how I was
12 treated. Yes, I did say that. I was very unhappy. There was a
13 problem. They had -- they beat -- they mistreated me.
14 Q. Mr. Bell, in 1998, in front of the same judge, Judge
15 Burgess, who took your guilty plea, supposedly the one that's
16 been coerced, you had a hearing for -- on allegations that you
17 had violated conditions of your supervised release. Do you
18 remember that?
19 A. I recall that.
20 Q. You were in court with Judge Burgess for how many days,
21 three days?
22 A. Two days. It was on May 21st, 1998, maybe, and June 2nd or
23 3rd of 1998. I'd been waiting -- excuse me. Correction, 1999.
24 I had been waiting eleven months for a probation violation
25 hearing, which I can tell you is virtually unknown. Probation
723
1 violation hearings usually occur within two, three weeks of
2 arrest on a probation violation charge.
3 Q. Mr. Bell, in the two days of those hearings, did you ever
4 once say to Judge Burgess, "Your Honor, I want to withdraw that
5 guilty plea. That was coerced"?
6 A. No. The reason I didn't was because that wasn't the
7 question that the -- that judge, Burgess, was there to judge.
8 He was there to judge the probation violation issue itself, and
9 as far as I was concerned, I was still under threat. I was
10 working, in effect, within the system.
11 The question involved was simply whether I had violated the
12 probation. The issue of the previous threats, the violation of
13 the plea agreement, were in fact explicitly not allowed for me
14 to discuss. They would have cut me off, just like Mr. Leen cut
15 me off by not asking questions. They would not have allowed me
16 to use that hearing to reopen these previous issues. They would
17 have said that's not relevant, Mr. Bell, we are only talking
18 about the probation violation.
19 Q. Mr. Bell, you didn't even try, did you?
20 A. I was under threat by --
21 Q. Who was threatening you, Mr. Bell?
22 A. The threats were the threats that had been delivered two
23 years previously.
24 Q. Was Judge Burgess threatening you? Was Judge Burgess part
25 of the conspiracy against you?
724
1 A. Not that I -- not that I was -- well, let me answer that as
2 accurately as I can.
3 I would not have known whether or not he was threatening me
4 other than if he had said in open court, and, of course, there
5 is a hard working stenographer here, and would have been there,
6 and I think was there, taking down all the words at that time.
7 I -- Judge Burgess certainly wouldn't have made any such
8 threats, and I certainly wouldn't have found out about any such
9 threats that I could directly attribute to Mr. Burgess under
10 those circumstances. So, no, I have --
11 Q. Mr. Bell, you pled guilty in 1997. A number of years went
12 by. A number of years have gone by. In fact, as of this day,
13 have you filed a motion to withdraw your guilty plea in 1997?
14 A. I have asked my previous -- or, no -- another attorney named
15 Jonathan Solovy, who had prepared the appeal on the probation
16 violation charge, the appeal which was filed on January 15th of
17 this year, I asked him -- I said I wanted him to do that, and he
18 said, "Well, that's not what my job is for," he says. "I was
19 appointed to do the appeal, and that's all."
20 Q. Mr. Bell, you have filed what we call pro se motions
21 throughout this case, if not the other cases, have you not? You
22 filed your own motions with the proper legal form right from the
23 Federal Detention Center at SeaTac. Have you not?
24 A. Let's -- let's -- please explain the term to the jury "pro
25 se."
725
1 Q. By yourself, without your lawyer's help.
2 A. Yes. Under normal circumstances the attorney handles filing
3 motions -- sorry about this.
4 Q. Please continue your answer.
5 A. I will. I will. I just --
6 (Witness has a drink of water.)
7 A. Under most --
8 THE COURT: Just a moment.
9 Jury, please go to lunch. Do not discuss the case among
10 yourselves or with anyone else over the noon recess. Be in the
11 jury room at 1:30.
12 (Jury excused.)
13 THE COURT: Mr. London, why do you leave the podium
14 when you're asking a question?
15 MR. LONDON: Well, I'm sorry, Your Honor. I actually
16 --
17 THE COURT: What do you mean you're sorry? Why do you
18 say you're sorry? Don't do it.
19 MR. LONDON: I won't do that anymore. I was getting a
20 document.
21 THE COURT: Do you understand?
22 MR. LONDON: (Nods head.)
23 THE COURT: 1:30.
24 Anything to take up before the noon recess? Either party?
25 MR. LEEN: Your Honor, I would ask that the court
726
1 caution the prosecutor just to ask one question rather than
2 multiple questions and then we all have to go back to what the
3 first question was.
4 THE COURT: Counsel.
5 MR. LONDON: That's taken -- well-taken, and I will be
6 more careful.
7 THE COURT: Oh, boy. Court's in recess. 1:30.
8 (Recess.)
9 AFTERNOON SESSION
10 (Jury not present.)
11 THE COURT: Ready for the jury?
12 MR. LONDON: Yes, Your Honor.
13 MR. LEEN: Yes, Your Honor.
14 THE COURT: Anything to take up before the jury comes?
15 MR. LONDON: No, Your Honor.
16 THE COURT: Either party?
17 Bring the jury.
18 (Jury present; 1:34 p.m.)
19 THE COURT: Let the record reflect the jury has
20 returned.
21 Continue cross-examination, government. Witness is still
22 under oath.
23 Q. (By Mr. London) Mr. Bell, on October 24th, 2000, you sent
24 an email posted to the Cypherpunks site. This was the "Say
25 goodnight to Joshua" email, Exhibit 141.
727
1 You had just gotten back from your excursion to the home of
2 the Gordons at 8300 Southwest Chelan, Tualatin, and McNall's
3 former residence on South Clackamas River Drive, and you
4 published this email to the published list knowing full well
5 that Jeff Gordon, or somebody like him, was probably reading
6 your public postings on the Internet, correct?
7 A. I was suspecting full well, not knowing. I had no personal
8 knowledge, but I strongly suspected that given their extreme
9 interest in me for the preceding few years, they would -- they
10 couldn't be kept from doing something like that.
11 Q. And you would learn from reading the Gordons' mail that they
12 had a son named Joshua, correct?
13 A. Yes, that's true.
14 Q. And as far as you knew, you had the Jeffrey Gordon that you
15 were looking for, this man right here, correct?
16 A. No, actually not. I suspected that he was probably
17 somewhere else. But the one that I found was a possibility, one
18 of a few.
19 Q. All right. So in your mind it was possible that you had the
20 right Jeffrey Gordon and that you now knew that he had a son
21 named Joshua, correct?
22 A. Well, actually, like I say, I was doing a test. I wanted to
23 see if I got -- a scientific -- the scientific method by which I
24 used, you formulate a hypothesis and you do various tests on the
25 hypothesis to determine whether the result matches your theory.
728
1 My theory, I had come close to what I thought would be the
2 truth, so I did a test to find out whether I got the reaction
3 that I thought I would get, and so I posted to an area an
4 unaddressed email which had information that virtually literally
5 nobody else in the world would understand unless they had been
6 electronically stalking me or following me. That message means
7 nothing to somebody who doesn't have the information that I had
8 or who had been not -- not following me around. I knew that if
9 I got the, quote, unquote, proper reaction to it, it means they
10 have been basically spying on me, following me, and they knew
11 perhaps where I was going and so forth. I was trying to
12 determine whether or not they were doing that. And they later
13 verified through the various of their actions that they were in
14 fact following me and reading that mail. So I --
15 Q. Okay --
16 A. This is effectively a scientific test, but it's done in a
17 nonscientific arena.
18 Q. You could have performed that same scientific test by simply
19 putting in that email the address 8300 Southwest Chelan, right?
20 Wouldn't Agent Gordon have been able to recognize that as his
21 address if it was the correct one?
22 A. No, I had no -- I had no desire to cause undue problems nor
23 reveal more information than I wanted to reveal. I wanted to
24 see whether or not they would show an indication that they knew
25 what I was doing even before having seen that particular
729
1 address. If they were doing the extensive research during last
2 summer that I suspected they were doing, they knew where I had
3 gone at the time I had gone there and not days or even weeks
4 later, like, oh, they're only now willing to admit.
5 So I was doing a test, and it was a -- I think effectively a
6 productive test, and I designed it to make sure that it didn't
7 bother people ahead of time, people who were not involved, to a
8 greater extent than what I did. I'm sorry if it wasn't a
9 perfect test, but it was a useful test.
10 Q. And do you think that it wasn't something that would have
11 caused Agent Gordon some concern to see on the Internet that you
12 now knew he had a son named Joshua?
13 A. No. If you look clearly at the note, it says nothing about
14 Jeff Gordon here. It could have been referring vaguely to Mike
15 McNall, let's say, or anybody else in the telephone directory.
16 There is nothing in that note that mentions Jeff Gordon.
17 Nothing at all.
18 He obviously had more information than he's willing to
19 admit, and Mr. -- Mr. London in his questioning forgets that it
20 was simply an unaddressed message that doesn't mention Jeff
21 Gordon or any other name except Joshua. And Mr. London just
22 revealed to you that it was Jeff Gordon that knew about -- or
23 Mr. London obviously believes Jeff Gordon knew something about
24 this message beyond what the message itself said. He revealed
25 information there. That's the reason for scientific tests. In
730
1 this case, in a nonscientific arena.
2 Q. In Exhibit No. 143, your October 25th, you got an email from
3 John Branton of the Columbian newspaper. He quotes you, "I did
4 a road trip a couple of days ago which probably worries the
5 Feds. Talk to Jeff Gordon of the Treasury Department and Mike
6 McNall of the Bureau of Alcohol, Tobacco, and Firearms (Portland
7 office.)" Did you tell Mr. Branton that?
8 A. I'm seeing a blue screen here. I would like to read the
9 whole thing, if I may.
10 AGENT GORDON: 143.
11 MR. LONDON: 143.
12 THE WITNESS: Can the jury see that?
13 MR. LONDON: They can if we publish it for them.
14 THE WITNESS: I would appreciate it if they would, if
15 you are going to ask questions about it.
16 Q. (By Mr. London) Do you see that email in front of you?
17 A. Yes, I do, on the screen.
18 Q. Do you see where it says what I quoted, "I did a road trip a
19 couple of days ago which probably worries the Feds"?
20 A. Uh-huh, I see that.
21 Q. Did you write that?
22 A. Sure.
23 Q. Does it say anything there about research?
24 A. The word research? No.
25 Q. Does it say anything there about investigating anything?
731
1 A. No. I told Mr. Branton many times before over the previous
2 four months that I was doing an investigation. It isn't
3 necessary for me to reiterate the same word over and over
4 again. Mr. Branton was very familiar. I had sent him probably
5 dozens of emails over the previous five or so months, ever since
6 I got out of prison, middle of April 19 -- or -- the year 2K
7 problem -- 2000. The year 2000.
8 Q. So five days later, on October 30th --
9 A. Yes.
10 Q. -- Exhibit 163, you publicly posted an email to the
11 Cypherpunks list about libertarian principles, and then you
12 said, "And there are no 'statutes of limitation' on our response
13 to these people regardless of current law." Is that correct?
14 A. Certainly. That principle does not involve concept of
15 statute of limitation.
16 Q. "Now would be an excellent time for anyone to go to their
17 county voter's registration office, and order a copy of the
18 voter's registration database for current and future use."
19 Did you also write that part of the email?
20 A. Sure I did. I wrote that.
21 Q. There wasn't anything there about research, was there?
22 A. No, I didn't use the word research.
23 Q. All right. Let's look at Exhibit 171. This is the fax that
24 you sent to Agent Gordon from your home in Vancouver to his
25 office in Portland, the one where you let him know that you
732
1 could come by his house the next night. Where in that fax is
2 there any indication that the purpose of your wanting to come by
3 his house is to privately discuss the Ryan Lund deal or any
4 electronic surveillance that has been done on it?
5 A. Nowhere, because that was not the function of my sending the
6 fax. The function of my sending the fax was to respond to a
7 threat to destroy guns, valuable guns. Rather than that, I
8 responded that I was arranging to have them handled. And that
9 was the purpose of the fax. The subject of surveillance or Ryan
10 Lund was not a portion of this issue.
11 Q. You knew he did -- that Mr. Gordon did his business at his
12 office, correct, and that it's not appropriate to do business
13 from your home when you're a public official?
14 A. Mr. Gordon apparently does his business in a number of
15 locations, particularly people's houses where he visits them to
16 intimidate them, as he has intimidated a number of my friends
17 and family. Mr. Gordon clearly does a lot of work outside of
18 his office.
19 Q. Are you capable of understanding the distinction between a
20 duly authorized law enforcement officer who is given powers by
21 the government to investigate matters and a private citizen who
22 decides to take things into his own hands?
23 A. Take -- I disagree with the premise of the question.
24 Q. Well --
25 A. Let me answer --
733
1 Q. Let me --
2 A. -- the question --
3 Q. Do you --
4 A. Let me answer the question.
5 THE COURT: Just a minute.
6 Q. (By Mr. London) Do you understand that he carries a badge?
7 THE COURT: Counsel.
8 What's the question?
9 Q. (By Mr. London) Do you understand that he is given the
10 authority to do certain things by virtue of the fact that he is
11 a trained law enforcement officer who carries a badge?
12 A. And he also carries a gun which would -- he implicitly
13 threatens people that know he is armed. I did not take things
14 into my own hands. I talked to many newspaper people: Branton
15 of the Columbian, Painter of the Oregonian. I talked to Declan
16 McCullagh. I've talked to other people. They did nothing about
17 my suspicions. I collected information to prove. They keep
18 ignoring me. As far as I know, there are no other newspaper
19 reporters in this courtroom. As far as I know, this case has
20 been boycotted by the Seattle P-I, the Seattle Times, the
21 Vancouver Columbian, and the Portland Oregonian.
22 Take this thing into my own hands? Sir, I had no choice. I
23 was the only one who was going to look into this material.
24 There is no one I could go to other than my own self to do
25 this. I wanted to do this research so I could prove to people,
734
1 including the jury here, if it came to that, that I was right.
2 If it wasn't for me, no one would ever have heard about this
3 material. No one. I did it myself. Is that called taking it
4 into my own hands? Fine. If that's what it's called, fine.
5 But somebody has to do this.
6 Q. Mr. Bell, do you understand that if you have a grievance
7 against the government, whether it is groundless or whether it
8 is meritorious, you have ways, you have options of having that
9 grievance aired? You are aware of that, aren't you?
10 A. It is said that there are ways. Whether or not those ways
11 actually work is a big question here.
12 Q. Well, do you know how to file a lawsuit?
13 A. Not yet.
14 Q. Do you know how to make a Freedom of Information Act
15 request?
16 A. Actually, I did. Last summer of 2000, I did a Freedom of
17 Information Act request of the U.S. Marshal Service to find out
18 precisely when and where they moved Ryan Thomas Lund at various
19 times during the time in 1997 when he was moved from Douglas
20 County Jail in Roseburg, Oregon, to Multnomah County Jail in
21 Portland, Oregon, and finally to SeaTac FDC. I did that because
22 I learned that that was public domain information, I could do
23 that. And I wanted to find out why Ryan Thomas Lund actually
24 arrived at SeaTac FDC on November 20th, 1997, rather than on
25 November 21st, which was the implication of what happened
735
1 downstairs on the 21st of 1997 when he arrived in civilian
2 clothes with paper, talk -- admitting his guilt in front of
3 cameras and microphones. I wanted an explanation, where was
4 Ryan Thomas Lund between the day of November 20th, 1997, and the
5 next day? He wasn't in my area at SeaTac. He was there the
6 next day when they put him in the same area as me. I wanted to
7 know, where were they hiding Mr. Lund that previous day? That
8 would tell us a lot. I'm not being allowed to show that
9 information. Mr. Leen wouldn't look up that information for
10 me. I've asked dozens of people.
11 THE COURT: He's answered. Next question.
12 Q. (By Mr. London) Do you know how to file a lawsuit?
13 A. Not yet.
14 Q. Do you know that if you hire a lawyer you can have a lawsuit
15 filed on your behalf?
16 A. Generally speaking, I have heard that to be true.
17 Q. And you know that if you sue somebody, one of the things
18 that you are entitled to is what we call discovery. You are
19 allowed to depose them, you are allowed to get statements from
20 them under oath.
21 A. Well, if discovery is anything like the discovery in this
22 case, it will be mighty ineffective.
23 Q. Mr. Bell, please answer the question.
24 A. Well, that was a good answer.
25 Q. Mr. Bell, are you aware that you are entitled to depose
736
1 people if you have a grievance against them after you file a
2 lawsuit?
3 A. Assuming I'm allowed to, normal procedure is that. I get to
4 have them under oath, and I, or my attorney, get to ask many
5 questions. That's the normal procedure, and if the procedure
6 works the way it did in this system, I wouldn't get that. But
7 that is at least the published answer that you will get from
8 attorneys as to how the system works.
9 Q. Exhibit 229, the interview you gave to Declan McCullagh of
10 Wired News after the search warrant had been executed at your
11 parents' house. In that exhibit you were quoted, or at least a
12 statement is attributed to you, "he acknowledges that he's shown
13 up at the homes of suspected BATF agents and has done DMV
14 searches on their names -- all in an effort to let them know
15 that surveillance can be done in both directions."
16 Is that something that you said?
17 A. Hold on. I'm beginning to find it here.
18 Is that published to the jury?
19 Q. No. The statement has been admitted --
20 THE COURT: Do you understand the question, sir?
21 THE WITNESS: Part -- it's continuing to move around --
22 THE COURT: Do you understand the question?
23 THE WITNESS: I can't even see it, sir. I'm sorry.
24 MR. LONDON: I'm quoting --
25 THE COURT: He can't see it.
737
1 MR. LONDON: It's not an exhibit. It's not an
2 exhibit. It's admitted in the form of testimony from the
3 state -- from the exhibit.
4 A. There is no direct quote there. There's no --
5 Q. (By Mr. London) All right. Did you acknowledge to Mr.
6 McCullagh that you had been doing DMV database searches on ATF
7 agents' names?
8 A. The only error here is, it says "agents" plural. The only
9 database search I did of a person I knew to be an ATF agent was
10 one person, Mike McNall. So that plural should have been turned
11 into a singular. But what Mr. McCullagh didn't write, which, of
12 course, is because he just chose to write the article this way,
13 is the information I looked up on dozens or even hundreds of
14 other people who were in fact not even government employees.
15 Again, former owners of vehicles that had been used to follow me
16 around, probably taken from police impound lots.
17 Q. Okay.
18 A. So I had --
19 Q. Did you tell Mr. McCullagh that you had done this, showing
20 up at the homes of Agent McNall, as it turned out, in an effort
21 to let him know that surveillance can be done in both
22 directions?
23 A. I think there was a -- there was a quote about that, and I
24 think there was a quote that was from me, or approximately that
25 was -- not exactly a quote, but that was a reference, yes.
738
1 Q. He quoted you, saying, "I wasn't all that happy before but
2 I'm hopping mad." But now I'm hopping mad. "If you think this
3 is going to stop me, baloney." Did you say that?
4 A. Sure, because of all the threatening activity over the last
5 few years and the abuse that I have suffered. I did say that,
6 sure.
7 Q. All right. Now, you suggested to the jury on Friday, and I
8 think again somewhere here this morning, that the reason for
9 tracking down Agent Gordon and Agent McNall at their homes was
10 to try to investigate the claim about the Ryan Lund --
11 A. Right.
12 Q. -- incident and the illegal surveillance that you believe
13 has been done on you, correct?
14 A. Yes. That's -- that's -- that's certainly a true statement
15 as far as it goes, that's true. But the investigation includes
16 many other issues, as well as that.
17 Q. And I think you tried to suggest that you could not have
18 talked to them at their offices or officially because a visit to
19 their offices might have been seen by others, and I think your
20 phrase was that it would have waved a red flag to others, is
21 that correct?
22 A. Yes, possibly. If -- I accepted the possibility that Mike
23 McNall might not have actually been the handler who talked to
24 Mr. Lund and asked him to assault me. There was that
25 possibility, and I accepted it, and I didn't necessarily. And
739
1 if it wasn't him, it was somebody else. And that somebody else,
2 it would probably be a good idea if he were not alerted that my
3 investigation might eventually address him. So contacting the
4 officer directly would have alerted, perhaps, that guilty party,
5 and I didn't want that to happen.
6 The only alternative I could think of was to visit Mr.
7 McNall, ask him, is he aware of the assault? If he didn't order
8 it, does he have any idea who did? Does he have any choice
9 words, perhaps an off -- an apology or a sympathetic word that
10 says, well, perhaps, you know, sorry about what happened. That
11 wasn't my idea, or -- he might not have said it in such a way
12 with a full admission, but he at least would have been able to
13 tell me something that I didn't already know. And if he had
14 been not the person who was involved, then I would have accepted
15 that reality.
16 Q. And is it your testimony that you could think of no
17 alternative short of showing up at people's homes at all hours
18 of the day or night in order to try to have some kind of
19 communication with them away from others who might be monitoring
20 the conversation?
21 A. That was the best alternative I could come up with. And the
22 visit at twelve midnight to that one address, I have explained
23 why it was that I had to get word to them very quickly. The
24 reason the notes were in a plastic bag is simply because Oregon,
25 as you know, is wet. Washington is wet, too. Dew, rain, and
740
1 such. I was leaving the messages at twelve o'clock midnight. I
2 knew that was the case. I was going to put them on under the
3 windshield wiper, and I knew that by the next day they would be
4 either damp or fully wet if they weren't protected somehow.
5 That's the reason I put them in the plastic bag, and I left them
6 under the windshield wiper. That's the best I knew how to do it
7 at that time. If I could have waited there, if it was daytime I
8 would have simply knocked on the door. I wanted to make sure
9 John Branton of the Vancouver Columbian understood that I hadn't
10 done anything improper days earlier at that address.
11 Q. Mr. Bell, if you were so concerned about keeping your
12 communications with Agent McNall and Gordon secret from these
13 others who might be monitoring them, then why were you publicly
14 posting things about them on the Internet and why were you
15 trying so hard to get reporters to write about all of this?
16 Does that make sense to you?
17 A. Given the level of abuse that I suffered for a period of
18 years, I couldn't avoid talking to the news media. I feel so
19 strongly about that. Communication with these people is minor
20 compared to your overall scope of the problem, and I wanted
21 nobody else to claim later on that I had failed to interface
22 with the proper news media-type people. I wanted there to be no
23 doubt in anybody's mind that I had exercised all the proper
24 channels, and the news media simply wouldn't listen to me. They
25 publish stories whenever the government wants something
741
1 reported, like an arrest or a search or a trial -- well, not
2 this one. Whenever they report it, or whenever it happens, it
3 gets reported. In my case, no. Whenever I -- I gave all of
4 these accusations and more of these accusations to Branton and
5 then Painter of the Columbian and the Oregonian, and others, and
6 they did nothing, nothing at all.
7 Q. Mr. Bell, on October 23rd, you went to the home of Jeff and
8 Barbi Gordon at 8300 Southwest Chelan, Tualatin, and you opened
9 their mailbox and you took at least two pieces of mail out of
10 their mailbox, correct?
11 A. I apologize.
12 Q. And you opened those pieces of mail.
13 A. I apologize for that.
14 Q. What did you do with the mail? Did you write down the
15 information right there by the mailbox or did you take it home?
16 A. I believe I stopped on the way home at a McDonald's, and I
17 was very hungry at the time. My blood sugar was very, very
18 low. I was feeling unhappy. I had to sit down somewhere. So I
19 bought whatever it is I usually buy there, I ate, and I copied
20 the information.
21 Q. Into your notebook?
22 A. Yes, I did.
23 Q. And then when you left the McDonald's, did you go back home?
24 A. Eventually, yes.
25 Q. What did you do with the mail? Did you put it back or did
742
1 you destroy it?
2 A. I threw it in the trash at the McDonald's, as I recall.
3 Q. So earlier when you were testifying about burning something
4 in the fireplace after you got back, that wasn't the Gordons'
5 mail?
6 A. No. But I -- I did intentionally, as I said, theatrically
7 put it in with the window shades open and this large, clear
8 window in the back of the house so that -- and I in fact
9 moved -- I positioned my body so that it was clear at the time
10 from the back of the house exactly what I was doing. And I took
11 a piece -- pieces of ordinary paper, no -- you know, just some
12 blank pieces of paper, some pieces of trash that I just happened
13 to have or -- junk mail, and I burned them, and I -- I don't
14 think I recall ever having done that maneuver ever before or
15 since. What we usually do is just toss them in a sack and
16 eventually we shove the sack in there and burn it. Now, I did a
17 very theatrical thing that I felt would be seen if there was
18 surveillance going on, and I put those individual papers in
19 there and I lit it so that there was -- it could be seen from
20 behind me.
21 Q. When you were at the Groener/Andrews property earlier,
22 around 5:30 on that day, you actually went to the mailbox and
23 you opened that mailbox up, too, didn't you?
24 A. Excuse me, the Groener?
25 Q. Andrews.
743
1 A. The Andrews. No.
2 Q. Well, Mr. Bell, it doesn't say Andrews on the mailbox, so
3 how did you know that there was somebody there named Andrews?
4 A. As far as I recall, it said Andrews on the mailbox, and in
5 fact I wrote it down, a notation in my notes that says Andrews
6 on mailbox.
7 Q. And in fact --
8 A. I don't recall.
9 Q. In fact, you were here when Mr. Groener testified that it
10 doesn't and did not ever say Andrews on the mailbox.
11 A. Well, he also testified that the road -- or the driveway was
12 labeled "private road," and I don't recall that either. And I
13 looked.
14 Q. And is it your position that unless something is marked
15 private road, you have the right to drive onto private property
16 and remain there uninvited for a while, even after someone has
17 asked you to leave?
18 A. Well, as you know, this was a rural area. It wasn't like
19 there was a parking space in front. There was no place to park
20 on the road. I wanted to visit. I had no alternative but to
21 put my car there, or to take my car down the driveway the first
22 time I went there. I couldn't have stopped -- if I hadn't
23 stopped toward the house, I would have blocked the driveway, and
24 that's not good. I couldn't have parked on the street. The
25 cars going by go by fast and there's no, no shoulder room to
744
1 park. So I had to go down there. And it was about -- well,
2 many, many hundreds of feet to the house. I didn't see anything
3 wrong with going and parking in front of the house. That's
4 basically what people do in a rural area if you don't have a
5 place to park farther away. I didn't see anything wrong with
6 that. I still don't.
7 As for the nighttime visit, which I was forced to do under
8 the circumstances, I did -- I could put the car, in effect,
9 block the driveway, but not -- simply, there was no alternative,
10 and then I went down, left the messages, and came back up. I
11 figured the blocking the driveway was not a problem at twelve
12 midnight. Chances are they weren't going to come and go at that
13 point. So that's why I was willing to block the driveway at
14 twelve midnight, but I wasn't willing to block the driveway at
15 four o'clock in the afternoon or five o'clock in the afternoon.
16 Q. 5:00 o'clock, 5:30 --
17 A. Somewhere around there.
18 Q. -- in the afternoon of the 23rd when you went to the
19 Groener/Andrews residence, you didn't just drive down the
20 driveway, did you? You actually got out of the car and you
21 walked all the way around the house.
22 A. Yes.
23 Q. Correct?
24 A. I first knocked on the big house's door, waited three, four
25 minutes, and knocked again. No answer. There was one vehicle
745
1 there in the garage. There was room for two. That person --
2 somebody was apparently gone. I then walked to the smaller
3 house and knocked on the door. Again, no answer. That -- but
4 that second house, the smaller house, the way the ho- -- the
5 door looked a little bit odd, and it wasn't clear that that was
6 the front door or the side door or the back door. So I went
7 around what I later on determined was indeed the back, and I
8 didn't find any more direct door, so I came back, and that's
9 when I met that person who was later on identified by name. But
10 I didn't know his name at that point.
11 Q. And when you made the second visit on the night of November
12 10th, a little after midnight, you went right inside the carport
13 to put those notes on the windshield, did you not?
14 A. Exactly. I had to. The cars were in the garage. The door
15 -- the garage door was open fully. They apparently didn't
16 close the garage door, and I wanted to make sure that those
17 people actually saying the notes the moment they got into their
18 car, so I put it underneath the windshield, just the way a meter
19 maid -- I mean, a meter maid would put a ticket under the
20 windshield wipers. That's exactly what I did.
21 Q. Well, Mr. Bell, you had this information about the Andrews
22 and the Groeners and their address. Why didn't you just give
23 John Branton that information and say, these are the people you
24 should contact about my theories about Ryan Lund and everything
25 else? Why was it necessary to go onto the property after
746
1 midnight?
2 A. I was very unimpressed with John Branton's ineffectiveness
3 ever since I first contacted him about my accusations and
4 suspicions two years previous. Or -- by telephone over a
5 monitored phone line from SeaTac all the way down to Vancouver
6 Columbian in about July, the beginning of July of 1998. Mr.
7 Branton -- you've heard of Woodward and Bernstein. Well, Mr.
8 Branton, unfortunately, was the opposite of Woodward and
9 Bernstein. If the story wasn't thrown on his lap, all printed
10 up and ready to go, Mr. Branton was totally uninterested in
11 looking at it. I could -- I tried for many months to convince
12 him that there was a story here. One of the reasons why Mr.
13 Branton is so reticent about acknowledging all of the various
14 contacts is because, frankly, he is embarrassed, I think. I
15 gave him the biggest story that he will ever see in his entire
16 career, and he totally blew it.
17 So, if you ask me, why didn't I give that information to
18 him? Well, frankly, I did eventually, I believe, but he wasn't
19 going to follow up on it. That's why I didn't give it. The
20 system doesn't work the way they say it does or in the movies.
21 Sometimes you have to do things for yourself, or to take things
22 in your own hands, as this man would try to make it sound bad.
23 Sometimes you have to do things for yourself. I found that
24 out.
25 Q. Exhibit 229, which was not admitted. We -- it's not
747
1 admitted in the form of the article, but Mr. McCullagh testified
2 to the accuracy of a statement he attributed to you. He said,
3 "I'm feeling very hostile and I'm not going to be stopped." You
4 also said, "I am thinking very seriously of picketing Jeff
5 Gordon's house." Do you remember saying that?
6 A. Yes, that's right.
7 Q. Can you explain how picketing Jeff Gordon's house can be
8 explained to this jury as investigation or research?
9 A. It was -- no, it was a protest. I wanted to -- picketing is
10 a well-established, long-term method of expressing one's
11 protest. I was protesting the threats I received, the
12 violations of a plea agreement, forcing me to accept a phony
13 plea agreement, and so forth. I had a lot of complaints, and if
14 picketing was going to do it to express my frustration, I was
15 willing to do that.
16 When I said I was hostile, the picketing was going to be my
17 solution to the hostile, you know. Some people -- I didn't
18 intend to bring it beyond that. Picketing is legal. Picketing
19 is a long-established method of protest. That's what I was
20 thinking of doing.
21 Q. Actually, in fact, you were fully capable of picketing his
22 place of work, were you not?
23 A. Given the fact that whatever his place of work is, probably
24 a multi-story building, taking up the entire city block. Well,
25 it's physically possible, but as a practical matter, it just
748
1 isn't seen.
2 Q. I want to talk to you a little bit about some of the ideas
3 that are discussed on the Cypherpunks website. You spent some
4 time on Friday talking about encryption and the ways that
5 messages can be masked or coded so that they are really totally
6 private. I want to ask you about a concept that is discussed
7 quite a bit on the Cypherpunks website called plausible
8 deniability. Does that have any familiarity to you?
9 A. Yes. The term "plausible deniability" is actually a term
10 that's most frequently used in reference to governments and, of
11 course, in America, usually the federal government. The concept
12 is often that when something happens, let's say the government
13 is at least alleged to have done something, the higher-ups would
14 like to be able to say, oh, we have no knowledge of that, or I
15 have not seen any evidence of, or that kind of thing. Their
16 answer has to be plausible. That is to say, if not totally
17 proven, and maybe they didn't see the evidence, but the overall
18 term is called plausible deniability. It means that a high
19 government official can say, I have no knowledge of that. I
20 have seen no information on that. Our agency was not involved.
21 We have no record of that. It must remain plausible, otherwise
22 people start to laugh. That's what plausible deniability is.
23 Q. In fact, didn't that -- didn't that have its origins during
24 the Watergate era when the Nixon administration was caught doing
25 some illegal things and there was some discussion high up about
749
1 being able to maintain plausible deniability? In other words,
2 having a story that would explain what they had been caught
3 doing?
4 A. Yes, I'm old enough to remember Watergate. Yes, that's
5 exactly right. The principle involved was they wanted to be
6 able to deny the actions of a few burglars who broke into the
7 Democratic National Convention, and basically they wanted to be
8 able to say, well, we didn't know. The fact is, of course, they
9 did know and they tried to cover it up. That was eventually
10 uncovered by two reporters, Woodward and Bernstein, and they
11 made a movie and a book about it. Very exciting. And I wish
12 all reporters were that persistent and effective.
13 Q. Now, on February 3rd, 1996, you sent an email to someone
14 named Matthew@psyched.demon.co.uk. The subject was BZ, which,
15 you will forgive me, it's a chemical, I think, Quinuclidinyl
16 Benzilate. Is that correct?
17 A. Quinuclidinyl Benzilate, yes.
18 Q. What is that?
19 A. It's something that the federal government developed in
20 about 1951 or '52 -- the United States federal government,
21 excuse me. It was developed as a nonlethal chemical warfare
22 agent. Not exactly like -- it's not like tear gas or anything.
23 It is a material which, if ingested, basically incapacitates you
24 for literally a day or two. It makes you sort of like a baby.
25 You can't react. Your health is not injured, but you are, in
750
1 effect, that you can't operate.
2 The idea was -- oh, the government paraded around the
3 country in something called Operation Blue Skies. That is, they
4 wanted to demonstrate that warfare was going to be humane later
5 on.
6 The idea was that you could spray this over a military base,
7 let's say, and then walk in about two or three hours later and
8 all of your opponents would be just sort of laying there passive
9 and you could just handcuff them up and take them away, and it
10 would be like you wouldn't kill them, you would just bring in a
11 van and carry them all away.
12 And that was called Operation Blue Skies. And the
13 government went around with demonstrations where they -- I think
14 they had a cage that had two portions, one side was a cat, the
15 other side was a mouse, and there was a partition between the
16 two. And the cat, of course, wanted the mouse, but the mouse
17 couldn't get away, and they spritzed the cat a little bit with
18 this material, and after a few minutes the cat was dreaming, and
19 they opened up the partition and nothing happened. And this was
20 an example of how the federal government wanted to demonstrate
21 the future of warfare. No more killing, no more bombing, just
22 spray a little spray and everybody is happy.
23 Q. All right. Now, do you remember telling this person,
24 Matthew, in the email that you were going to send him via the
25 mail some of this drug BZ, or this chemical BZ, but saying that
751
1 you were going to misspell the person's name, I guess the
2 addressee's name, so that, quote, "It would be similar enough to
3 get there, the destination, but plausible deniability would have
4 been maintained"?
5 A. I think I vaguely recall something like this. The guy --
6 Q. Would you like to have a copy of it?
7 A. That particular one, I don't need to see that one. I think
8 the person had previously said that he had seen a lot of other
9 drugs, LSD, heroin, and a few other things, and he was curious
10 about that.
11 Q. Okay. On October 13th of '96 you sent another email, this
12 one to a Michael Froomkin, with a cc to the Cypherpunks. And
13 the subject was blinded identities, regarding exporting
14 signatures only. And I think this involved possibly some
15 encryption subject matter. You said, in a discussion of the
16 creation of anonymous bank accounts, specifically, remember
17 plausible denial. Do you remember that?
18 A. What year was this message, please?
19 Q. It was 1996.
20 A. Oh, my memory is really being tested here. Again, the term
21 "plausible deniability" is -- has been turned into almost a
22 funny term.
23 Q. In 1997, March 8th, you sent an email to the mailing list
24 libernet-d. The subject was "AP," I assume Assassination
25 Politics, "as Burning Bed." And in that one you discuss the
752
1 advantages of using Assassination Politics with the common law
2 court, and you stated, quote, "plausible deniability is
3 maintained should a convicted defendant die. Nobody at the
4 common law court would be involved in that incident."
5 A. You said something about burning bed?
6 Q. That was the subject line.
7 A. I'm not even sure what that refers to. It sounds very odd.
8 Q. Do you remember talking about Assassination Politics and
9 saying --
10 A. Yes.
11 Q. -- "plausible deniability is maintained should a convicted
12 defendant die. Nobody at the common law court would be involved
13 in that incident"?
14 A. Other than the title, "Burning Bed," which honestly I can't
15 recall, I've had many discussions of this type, subsequent to my
16 writing of the essay in mid, you know, early middle of 1995 and
17 on. But again, the Burning Bed thing, I have no idea what that
18 refers to.
19 Q. All right. Well, October 20th of 2000, in an email to a
20 George@orwellian.org with cc's to the Cypherpunks, you said in a
21 discussion of entering false names on computer documents,
22 "plausible deniability is maintained." Do you remember that?
23 A. I'm sorry. I apologize. Please repeat the question.
24 Q. October 20th of last year, 2000 --
25 A. Sure.
753
1 Q. -- in an email to George@orwellian.org, in a discussion
2 about entering false names on computer documents, once again you
3 talked about plausible deniability being maintained.
4 A. Sure. The address that was George@orwellian.com, well, you
5 may have picked up on the joke already. Have you ever heard of
6 George Orwell, the author of 1984 and Animal Farm? The site is
7 called orwellian.com, and this particular person has to be --
8 happens to be a George, and it's obviously, the thing was a
9 joke. I mean, his own email address was written to be a joke.
10 Yeah, there was probably a reference in there to plausible
11 deniability. Again, this is a very, very famous term. If you
12 were to do a web search for plausible deniability, on an Alta
13 Vista or some other -- Yahoo or any other search engine, you
14 would find thousands and thousands of hits on plausible
15 deniability. This is a well-known phrase. I don't know why
16 he's focusing on this, but it's a well-known thing that people
17 talk about it, they laugh about it, they -- you know, it's one
18 of those things. It's -- so many government scandals have been
19 based on, well, the breaking of the plausible deniability
20 concept.
21 Q. Well, isn't the idea that if you get caught doing something
22 illegal, it's a good idea to have some kind of story you can use
23 to suggest that perhaps you have a legal purpose for doing what
24 you were caught doing?
25 A. I guess so, and I'm very fascinated to find out what Jeff
754
1 Gordon's explanation for all his activities are. That of, you
2 know, the infiltration of the common law court and a few other
3 things.
4 I don't think you ever thought that was going to be exposed,
5 did you? If it wasn't for me that wouldn't have been exposed.
6 You wouldn't have had to have had an explanation. What is your
7 explanation, sir, about the common law court? What is your
8 plausible deniability?
9 THE COURT: Any other questions of this witness?
10 MR. LONDON: I do, Your Honor.
11 Q. (By Mr. London) Mr. Bell, if you will forgive me, but the
12 protocol that is used in court is the lawyers ask the
13 questions.
14 MR. LONDON: I would like permission to be able to
15 approach the witness and show him --
16 THE COURT: Give it to the clerk.
17 THE CLERK: Is it marked?
18 MR. LONDON: Not yet. It's just for purposes of the
19 cross-examination, and I won't mark it at this point.
20 A. There are three pieces of paper here. Are you referring to
21 one or all three?
22 Q. (By Mr. London) They are altogether.
23 Mr. Bell, on the top sheet, do you see where it says "DMV
24 2000, Oregon Department of Motor Vehicles on CD-ROM"?
25 A. Yeah, that's the first page here.
755
1 Q. Right. And, in fact, the second page is an envelop from
2 Bootleg Computing, Astoria, Oregon, sent to you at your address
3 at 7214 Corregidor.
4 A. Sure, I see that.
5 Q. All right. Now, the third is --
6 A. Wait, hold on. You mentioned -- what did you say about my
7 address at 7214 Corregidor?
8 Q. Yes. Do you see --
9 A. The first page here doesn't --
10 Q. Do you see the second page? It's the envelope.
11 A. Awe, okay. Sure. I see that.
12 Q. It's DMV 2000, which is --
13 A. Okay, I see that now. Sure.
14 Q. All right. Now, do you see on the first page where it says,
15 "We warrant the above DMV Databases will be used for
16 'marketing' purposes only in accordance with all Oregon and
17 federal laws"? It's right beneath the line.
18 A. Just a second here.
19 Okay.
20 Well, he's misspelled warrant.
21 Q. Do you see that, where it says that?
22 A. It also says Oregon laws. That's true. I was in
23 Washington. I'm not aware of the federal laws, but, yes, I see
24 that line, sure.
25 Q. I'm just asking you if you see that. I'm also asking you if
756
1 this is something you recognize. This was actually taken during
2 the search of your home.
3 A. Mm-mmm.
4 Q. And Bootleg software is in fact the company for Mike
5 Beketic, the guy who sent you this stuff, isn't it, the DMV
6 material?
7 A. Well, I don't recall any reference in the search warrant
8 which would even have made this a legitimate subject of the
9 warrant. However, that's a legal point --
10 Q. Right.
11 A. -- and I'm not a lawyer and I have never been in law school,
12 so I won't --
13 Q. Okay.
14 A. -- try to comment.
15 Q. Do you have the third document that I gave you? It's the
16 email exchange between you at loubell@pacifier.com and
17 mike@bootleg@pacifier.com?
18 A. Yes. I was using my mother's email address temporarily for
19 a while. Yes, this is a printout of something, and it will take
20 me a moment to read it all.
21 Q. All right. Does that look like an email exchange you had
22 with Mr. Beketic about prices of getting databases, Oregon DMV
23 databases on disk and so on?
24 A. The portion that I wrote, yes. There is also other
25 reference -- there's careted information, quote information.
757
1 Q. All right. Well, do you see the -- do you see the, down
2 near the bottom third where, according to the careted
3 information, Mr. Beketic told you, "You'll need to sign and date
4 a little form (new laws) stating the data will be used for
5 'Marketing Purposes' only"?
6 A. Mm-hmm. I see that.
7 Q. And then what's your response there?
8 A. Well, it looks to me like I wrote "Fine by me."
9 Q. Mr. Bell, when you were brought before this court on these
10 charges, you asked to be able to have an attorney appointed for
11 you, correct, based on your financial status?
12 A. Well, apparently I've been denied an attorney. Mr. Leen has
13 not been acting as my attorney.
14 Q. Sir, that's not my question. We're not here to talk about
15 Mr. Leen now. I'm just asking you, when you came before this
16 court, did you fill out a financial affidavit?
17 A. Uh-huh.
18 Q. In support of your request to have a lawyer appointed for
19 you for free?
20 A. I don't recall that specifically.
21 Q. All right.
22 MR. LONDON: Well, can I ask the witness to hand --
23 excuse me -- the clerk to hand the witness this?
24 A. Is this in relation to evidence in the crime charged or is
25 this something entirely different?
758
1 Q. (By Mr. London) This goes to your credibility, sir.
2 A. Okay. Sure. Okay.
3 Q. All right. You're looking at the same document I'm looking
4 at?
5 A. Well, actually I'm not looking at it. You're apparently
6 asking about material that has nothing to do with the crime
7 charged. I apologize, but I'm concerned about your tactics,
8 sir. I do not have an attorney representing me at this time.
9 That man doesn't do so. I don't believe I should be questioned
10 under these circumstances. I need legal -- proper legal
11 counsel. I have been patient to your persistent questions, and
12 I apologize to the jury. I have been denied 15 defense
13 witnesses. This is not a fair arrangement here.
14 THE COURT: What's the question, counsel?
15 MR. LONDON: I have handed Mr. Bell a copy of the
16 financial affidavit that he filled out before this court in
17 which he made certain statements to this court on penalty of
18 perjury. I would like him to look at it, and I want to go
19 through some of the things he said in this case.
20 THE COURT: Do you understand the question, Mr. Bell?
21 THE WITNESS: So far he doesn't have a question, but --
22 THE COURT: Do you understand the question?
23 THE WITNESS: Which question is this?
24 Q. (By Mr. London) Do you see in front you a document called
25 "Financial Affidavit" which you signed on 11/20 of 2000?
759
1 A. Yeah, I believe so. Sure.
2 Q. All right. And this is a document that asks you to report
3 your assets and your financial information to the court so that
4 the court can determine if you qualify for appointed counsel, is
5 it not?
6 A. Its comments are cryptic here, but I will take your word for
7 that.
8 MR. LEEN: Your Honor, the defense objects to any
9 inquiry into the financial affidavit. It is a matter that
10 should be relevant only for purposes of appointment of counsel
11 and for Pretrial Services, and as such, I believe its filing is
12 for restricted purposes.
13 THE COURT: The objection is overruled.
14 Q. (By Mr. London) Mr. Bell, at the bottom, what does it say?
15 Do you see "warning"?
16 A. Sir, with all due respect, the only person in this room who
17 has ever claimed to represent me as a lawyer has just made an
18 objection, and never having been a lawyer and never being a
19 lawyer and I never will be a lawyer, I know enough about law to
20 know that he has made a valid objection. And frankly, I have to
21 follow, while I cannot in general necessarily trust Mr. Leen's
22 legal advice, in this particular instance I see that he has the
23 grain of truth here, so I'm going to have to decline,
24 respectfully, answering questions about this document because I
25 do not have a lawyer that I can fully confide in and get advice
760
1 from, despite the example that you just saying. One of the very
2 first times that Mr. Leen has spoken up in this hearing today on
3 my behalf.
4 THE COURT: What's the next question for the witness?
5 Q. (By Mr. London) Mr. Bell, on this form it asks you about
6 assets and other sources of income. "Have you received within
7 the past 12 months any income from a business, profession or
8 other form of self-employment" --
9 A. I do not know. I have -- as I mentioned previous --
10 Q. I'm not finished asking the question. If you will just be
11 patient, you will have a chance to respond in a moment.
12 -- "or in the form of . . . interest, dividends . . . or
13 annuity payments, or other sources? " Do you see that question
14 on the form?
15 A. Sir, I am no longer looking at that form. Did I receive
16 anything? I have no idea.
17 Q. Do you see your signature at the bottom of this form?
18 A. I believe I did when I last looked at the document.
19 Q. And do you see where you checked off the box "no" when it
20 asked you about other sources of income?
21 A. I was not aware of any at the time.
22 Q. So you weren't aware of the trust account that's
23 administered on your behalf by your attorney J. Marvin Benson in
24 Vancouver, Washington?
25 Are you saying that when you came before this court you were
761
1 not aware --
2 A. Sir.
3 Q. -- of the trust account that was maintained --
4 A. Sir.
5 Q. -- for you by J. Marvin Benson?
6 A. Sir, you're asking me about confidential attorney
7 communications here, it appears. You have gone far beyond what
8 is ethically possible in what -- in a court of law. Have you no
9 shame? Sir, have you no shame?
10 Q. Mr. Bell, there is nothing privileged about Mr. Benson's
11 distributions to you of $2000 a month all during the month of
12 last summer --
13 A. Sir.
14 Q. -- and fall.
15 A. Sir.
16 Q. Mr. Bell, we're not here to argue about law and privilege.
17 We're here for you to answer some questions.
18 A. I have --
19 Q. So far the court has not told you not to answer the
20 question.
21 THE COURT: What is the question, counsel?
22 Q. (By Mr. London) Mr. Bell, did you report to the court on
23 the financial affidavit your shares in the Templeton Emerging
24 Markets Fund -- 1852 such shares, to be precise -- that you had
25 on an invoice right here, 2/12/01?
762
1 A. I don't recall.
2 Q. All right.
3 MR. LONDON: Well, I'm going to ask the clerk to hand
4 the witness these documents.
5 THE WITNESS: I decline to answer any questions about
6 the documents that were just handed to me. The circumstances of
7 this hearing are thoroughly improper. I do not have proper
8 legal representation. He is obviously very frustrated, the
9 attorney is, that he has totally destroyed his own case and he
10 is trying to use whatever tactics he can.
11 THE COURT: Mr. Bell. Do you decline to answer the
12 question?
13 THE WITNESS: I have said before that I'm not
14 represented by --
15 THE COURT: Do you understand the question?
16 THE WITNESS: I do not understand the circumstances
17 under --
18 THE COURT: Ask him the question again.
19 Q. (By Mr. London) Mr. Bell --
20 THE WITNESS: I must -- excuse me, sir. I must --
21 THE COURT: Mr. Bell.
22 THE WITNESS: Yes, sir.
23 THE COURT: Do you or do you not understand the
24 question you are being asked?
25 THE WITNESS: I have to respond to the question with
763
1 the statement that I am taking the fifth amendment, which even
2 innocent people are entitled to do, according to a recent
3 decision of the Supreme Court, based on this man's continuing to
4 question me --
5 THE COURT: Will the jury please go to the jury room.
6 Do not discuss the case among yourselves or with anyone else.
7 (Jury excused at 2:25 p.m.)
8 THE COURT: Where are we?
9 Well, the government asked the question.
10 MR. LEEN: Your Honor, the defendant I think has taken
11 the Fifth Amendment, and I think he should be allowed to do that
12 on a -- the government I think is alleging perjury, false
13 statement. It's an unrelated crime, it's a collateral matter,
14 and he's invoked the fifth on his own. I think that that should
15 be the end of the inquiry. I don't think that he can be
16 compelled to answer such a question.
17 MR. LONDON: My response is that he certainly is
18 entitled to take the fifth, but I believe he should take the
19 fifth as to each and every one of the $2000 checks that I am
20 prepared to show him, that he not only took, but did not report
21 to this court.
22 THE COURT: Well, even though there hasn't been any
23 objection to it, isn't it beyond the scope of the direct
24 examination?
25 MR. LONDON: I don't believe, Your Honor, that when
764
1 something goes to the defendant's credibility that it really is
2 beyond the scope. He has talked for many hours to try to
3 convince the jury of his version of events, and I think the
4 government is entitled to probe his propensity or lack of
5 credibility, and this is certainly evidence on point in that
6 regard.
7 THE DEFENDANT: Given the government's attacks on me --
8 THE COURT: Mr. Bell.
9 THE DEFENDANT: -- during the last four years --
10 THE COURT: Mr. Bell.
11 THE DEFENDANT: I'm sorry.
12 THE COURT: Well, if you're sorry, don't do it.
13 THE DEFENDANT: All right. Thank you.
14 THE COURT: You're saying, even though the question is
15 beyond the direct examination, you can test his credibility?
16 MR. LONDON: Yes, Your Honor. Our position is that the
17 objection is beyond the scope --
18 THE COURT: Well, hasn't he already put his credibility
19 in issue?
20 MR. LONDON: He has. That's our view as to --
21 THE COURT: Well, how many times do we put it in issue
22 then?
23 MR. LONDON: Well, if he puts it in issue once, I'm
24 entitled to show why he's not credible, and this is direct
25 evidence of why he's not credible. If he wants to plead the
765
1 fifth, that's fine, but I would like to be able to take him
2 through each and every one of these checks and let him plead the
3 fifth as to that and why he didn't report any one of those on
4 his financial affidavit under penalty of perjury to this court.
5 THE COURT: Well, if I understand that, isn't that a
6 separate charge?
7 MR. LONDON: It can be. He hasn't been charged with
8 it. Yet.
9 THE COURT: Don't you -- are you saying that this court
10 should now determine whether he's perjured himself or not?
11 MR. LONDON: No.
12 THE COURT: Well, what are you saying?
13 MR. LONDON: I'm saying simply that we should be
14 allowed to ask him about each one of these checks that he
15 deposited in his bank account and why he didn't report --
16 THE COURT: Well, we're not there. Back up.
17 MR. LONDON: All right.
18 THE COURT: You've asked him certain questions, you
19 say, that test his credibility. Does the test of credibility
20 raise the issue of perjury?
21 MR. LONDON: Perjury is implied in terms of what he did
22 on that form.
23 THE COURT: Who decides perjury?
24 MR. LONDON: A jury, after it's charged. He isn't
25 charged.
766
1 THE COURT: After it's charged, but he hasn't been
2 charged with perjury.
3 MR. LONDON: He has not been charged with perjury. He
4 is in peril of being charged with perjury. That's why his
5 invoking of the fifth makes absolute sense, and we are not
6 opposed to his declining to answer the question on the grounds
7 of self-incrimination in view of the jeopardy that he's in for a
8 perjury charge. However, we believe the appropriate thing is to
9 be able to ask of him as to every one of those checks, and then
10 have him invoke the fifth as to every one of those checks.
11 THE COURT: Well, since you have gone beyond the direct
12 examination, and he -- there's been an objection. He says he
13 wants to take the fifth. I'm going to sustain the objection.
14 MR. LONDON: Will the jury be informed that he has
15 taken the fifth as to this line of questioning?
16 THE COURT: I don't intend to tell the jury, to say
17 anything. The jury has already heard it. Haven't they?
18 Now, is there any other questions that we're going to get in
19 this? Because I don't want the jury to go out every five
20 seconds while we take up an issue.
21 Let's, since they are out, let's take a 15-minute recess.
22 (Recessed at 2:30 p.m.)
23 (Jury not present; 2:47 p.m.)
24 THE COURT: Anything further to take up? Before the
25 jury comes back.
767
1 MR. LEEN: Your Honor, I would like to make a motion
2 for a mistrial for the prosecutor's direct eliciting of a fifth
3 amendment response from the defendant while he was on the stand.
4 THE COURT: That will be denied.
5 MR. LONDON: We're not going to do any further
6 cross-examination with him. We are done.
7 THE COURT: Any other witness you intend to call, Mr.
8 Leen?
9 MR. LEEN: No, Your Honor.
10 THE COURT: Any rebuttal?
11 MR. LONDON: No, Your Honor. And I'm wondering if
12 before the jury is brought back if this might be the time to do
13 the instruction conference?
14 THE COURT: Of course not.
15 Bring the jury.
16 (Jury present; 2:49 p.m.)
17 THE COURT: Let the record reflect the jury has
18 returned. You may be seated.
19 Any further questions of this witness, Mr. London?
20 MR. LONDON: No, Your Honor, no further
21 cross-examination.
22 THE COURT: Redirect, Mr. Leen?
23 MR. LEEN: No questions, Your Honor.
24 THE COURT: The witness may step down.
25 THE WITNESS: Thank you.
768
1 (Witness excused.)
2 THE COURT: Any further witnesses, Mr. Leen, for the
3 defense?
4 MR. LEEN: No, Your Honor. The defense rests.
5 THE COURT: Government, rebuttal?
6 MR. LONDON: No, Your Honor.
7 THE COURT: Both parties rest.
8 We are ready for instructions, is that correct?
9 MR. LONDON: Yes.
10 MR. LEEN: Yes, Your Honor.
11 THE COURT: Well -- I'm counting the clock.
12 What I think I should do is send you home, and be back at
13 9:30. Then you will hear the court's instructions and hear the
14 closing arguments, and then, and only then, will you have the
15 case for your verdict. I just think that's the best way to do
16 it.
17 So, you are now free to go home. Be in the jury room at
18 9:30. In the meantime, please do not discuss this case among
19 yourselves or with anyone else.
20 See you at 9:30 tomorrow morning.
21 (Jury excused; 2:50 p.m.)
22 THE COURT: To both parties: I just don't think we can
23 get the instructions ready and read them, and I don't like to
24 bifurcate or have a recess in the middle of either the
25 defendant's arguments or the government's arguments.
769
1 MR. LEEN: Yes, Your Honor.
2 THE COURT: So. Do you have a packet of the court's
3 proposed instructions? Both parties?
4 MR. LONDON: Yes, Your Honor.
5 MR. LEEN: Yes, Your Honor.
6 THE COURT: All right. Now, the packet I gave you a
7 day or so, or last week, has been changed to reflect, I think,
8 it's four or five instructions that were resubmitted by the
9 government. Do you have those instructions now?
10 MR. LONDON: Yes, Your Honor.
11 MR. LEEN: Yes, Your Honor.
12 THE COURT: Mr. Leen?
13 MR. LEEN: Yes, I do.
14 THE COURT: What I intend to do is read the first line
15 or first words of the court's proposed instruction as they stand
16 now. So follow along so you can get them in sequence, and then
17 you will get a chance to except to them.
18 MR. LEEN: Yes.
19 THE COURT: Okay?
20 All right. "Members of the jury."
21 "The indictment is not evidence."
22 "A separate crime is charged in each count."
23 "You are here only to determine whether defendant is guilty
24 or not guilty of the charges in the indictment."
25 "In reaching your verdict, you may consider."
770
1 "The evidence from which you are to decide what the facts
2 are consists."
3 The next one would be, "Evidence may be direct or
4 circumstantial."
5 "A reasonable doubt is a doubt based upon reason and common
6 sense."
7 "To convict the defendant of the offense charged in count 1
8 of the indictment."
9 "To convict the defendant of the offense charged in count
10 two of the indictment."
11 "To convict the defendant of the offense charged in count
12 three of the indictment."
13 "To convict the defendant of the offense charged in Count 4
14 of the indictment."
15 "To convict the defendant of the offense charged in count 5
16 of the indictment."
17 "As to counts four and five."
18 MR. LEEN: One second, Your Honor.
19 THE COURT: Did I hear something?
20 MR. LEEN: I just asked you to wait one second.
21 THE COURT: Okay.
22 MR. LEEN: These are the revisions submitted by the
23 government you are going to give?
24 THE COURT: Yes.
25 MR. LEEN: Okay. Yes, sir.
771
1 THE COURT: "An act is done knowingly."
2 "You have heard evidence of other acts by the defendant."
3 "You have heard testimony that the defendant made
4 statements."
5 A discreminent -- "A defendant in a criminal case has a
6 constitutional right not to testify." Delete that one, because
7 he did testify.
8 "The parties have agreed to certain facts that have been
9 stated to you."
10 I think there was one stipulation?
11 MR. LONDON: There actually never was in the record.
12 We agreed that if they -- we agreed that we would not call Mr.
13 Bell's parents if he did not try to suggest that any of the
14 emails was there. That never actually became an issue in front
15 of the jury, so this one I think can be deleted.
16 MR. LEEN: I would agree.
17 THE COURT: It's out.
18 "Certain charts and summaries have been received into
19 evidence." Have there been such evidence?
20 MR. LONDON: Yes, Your Honor.
21 MR. LEEN: Yes. 21.
22 THE COURT: "You have heard testimony from an
23 undercover agent."
24 "You have heard testimony from persons described as
25 experts."
772
1 "In deciding what the facts are, you must consider all the
2 evidence." Now, that is two pages, and there is another one.
3 "In deciding what the facts are, you must consider all the
4 evidence." The one that I just read now does not include the
5 defendant's testimony, but the two page does.
6 MR. LEEN: Okay.
7 THE COURT: So that two-page instruction, beginning,
8 "In deciding what the facts are, you must consider all the
9 evidence," the two pages are deleted. And the one page, "In
10 deciding what the facts are, you must consider all the evidence"
11 is the one that will be read to the jury.
12 "The punishment provided by law for this crime."
13 "The verdict must represent the considered judgment of each
14 juror."
15 "Upon retiring to the jury room."
16 Now, that is the order in which the court at this time
17 intends to read them.
18 And one other matter. Start from the back, and count four
19 forward, and that fourth one should be, "In deciding what the
20 facts are, you must consider all the evidence." I am going to
21 withhold those four from the preceding instructions until the
22 closing closing argument by the government. You are free to
23 refer to them just as though they were given.
24 Now, with that in mind, has the government any exceptions to
25 the court's proposed instructions as they now stand?
773
1 MR. LONDON: Well, I guess -- I guess there are
2 exceptions in the sense that there's a change that I would like
3 to propose in some of the substantive instructions that relate
4 to the actual elements of the offense that have to be found
5 proven.
6 THE COURT: Well, you gave the elements.
7 MR. LONDON: Yes, Your Honor. And, in fact --
8 THE COURT: You want to change your own instructions
9 again now?
10 MR. LONDON: Here's what I'm thinking. I neglected to
11 number these as we went through them, but the first one that
12 concerns the elements, for example, "To convict the defendant of
13 the offense charge in Count 1, you must find the government has
14 proven the following." We initially said that we had to prove
15 that defendant traveled across the state line. This is where
16 I'm getting to the part that I want to change. It says, "with
17 the intent to injure or harass."
18 When we started this, we thought there was a chance we might
19 be proving injury as an intent, but in fact I feel the proof
20 sustains the intent to harass and nothing more, and I don't feel
21 that the jury would benefit from inclusion of a possibility that
22 he intended to actually injure. So my proposed modification
23 would simply be with intent to harass.
24 THE COURT: And you would strike the words?
25 MR. LONDON: "Injure or."
774
1 THE COURT: All right. Any others?
2 MR. LONDON: I would do the same thing on the next one,
3 "with intent to harass Jeff Gordon," taking out "injure or."
4 The next one is fine, but the one after that, for Count 4,
5 it would be the same --
6 THE COURT: Wait a minute. Now you're talking about --
7 we have disposed of one and two.
8 MR. LONDON: Right.
9 THE COURT: We are now on three?
10 MR. LONDON: Count three I have no proposed changes.
11 THE COURT: So we're now on count four?
12 MR. LONDON: Count four would be the same change, that
13 the line marked with the -- for the third element, "with the
14 intent to," I would simply say "harass" and take out "injure
15 or."
16 THE COURT: Five.
17 MR. LONDON: Same thing. The third element, "with the
18 intent to harass Mike McNall" and take out "injure or."
19 THE COURT: Any others?
20 MR. LONDON: No, Your Honor, no exceptions.
21 THE COURT: All right.
22 Mr. Leen, on behalf of the defendant.
23 MR. LEEN: Yes, Your Honor.
24 First, Your Honor, I had submitted a memorandum regarding
25 defendant's first amendment defense.
775
1 THE COURT: Well, wait a minute, wait a minute, wait a
2 minute. Let's --
3 MR. LEEN: Oh.
4 THE COURT: -- get to what I have now.
5 MR. LEEN: Oh, I see.
6 THE COURT: Do you have any exceptions or changes or
7 modifications, including those just mentioned by the government,
8 to the court's proposed instructions?
9 MR. LEEN: Well, there's one -- no. What has been
10 given so far is appropriate, in my opinion.
11 THE COURT: Including that modification of the
12 language?
13 MR. LEEN: That's acceptable.
14 THE COURT: All right. Now, what is your exceptions to
15 the court's proposed packet as it now stands with those
16 changes?
17 MR. LEEN: Thank you, Your Honor.
18 The defense has requested one instruction which I --
19 THE COURT: This is failure to give now.
20 MR. LEEN: The failure to give.
21 THE COURT: All right.
22 MR. LEEN: Defendant's proposed jury instruction number
23 1. I submitted it along with a memorandum of law in support of
24 it to the court that says:
25 "The First Amendment protects political speech that
776
1 encourages others to commit violence, unless that speech is
2 capable of producing immediate lawless action. It does not
3 matter that the speech makes future violence more likely;
4 advocating illegal action at some indefinite future time is
5 protected speech under the First Amendment.
6 "In addition, the First Amendment protects an individual's
7 right to gather information, provided it is gathered legally, so
8 that the individual may exercise the right of free speech.
9 "If you find that the defendant was engaged in protected
10 free speech activities, even if such activities were repugnant
11 or offensive to others, you must find the defendant not guilty."
12 I would request that that instruction be given.
13 THE COURT: I read -- is it the Freeman case you are
14 depending on?
15 MR. LEEN: I'm relying on several cases, Your Honor,
16 and I have cited --
17 THE COURT: Mason, Lopez.
18 MR. LEEN: Yes.
19 THE COURT: Is that the one?
20 MR. LEEN: Yes.
21 THE COURT: Is that -- Schmuck and United States v.
22 Kenny, and there's an Aguilar, and there are several, right?
23 MR. LEEN: And Aguilar. And also Planned Parenthood, a
24 new case under the Ninth Circuit.
25 THE COURT: The so-called abortion cases.
777
1 MR. LEEN: The so-called abortion cases, yes, Your
2 Honor.
3 THE COURT: Okay. I've read it. But -- the
4 instruction as you proposed says, "The First Amendment protects
5 political speech that encourages others to commit violence."
6 How about hollering "fire" in a crowded theater?
7 MR. LEEN: Do you want me to go to the podium, Your
8 Honor?
9 THE COURT: Well, you can stay right there.
10 MR. LEEN: Well, it certainly -- that's always been
11 found to be not protected by the First Amendment.
12 THE COURT: Okay.
13 MR. LEEN: That's why the second paragraph, that's why
14 I have a comma, "unless that speech is capable of producing
15 immediate lawless action." So the speech has to be directed
16 towards -- it has to be something like "fire" in a -- yelling
17 "fire" in a theater or saying, "Go out and kill this person,"
18 but short of that, it's protected as of -- as obnoxious as it
19 might be.
20 THE COURT: Well, the court looks at it this way. The
21 operative words are "future violence."
22 MR. LEEN: Yes, sir.
23 THE COURT: Right?
24 MR. LEEN: Yes, sir.
25 THE COURT: More likely. Now go to the second
778
1 paragraph.
2 MR. LEEN: Yes, sir.
3 THE COURT: No, I'm not there yet. There's someplace
4 else I saw here.
5 MR. LEEN: I had said that advocating illegal actions
6 --
7 THE COURT: It does.
8 MR. LEEN: -- at some indefinite future time is
9 acceptable.
10 THE COURT: Does that modification of others, does that
11 exclude the defendant?
12 MR. LEEN: No. I think that this -- I think that
13 his --
14 THE COURT: Because he's admitted illegal acts.
15 MR. LEEN: Oh, I see what you're saying. You mean in
16 the gathering of information?
17 THE COURT: Right.
18 MR. LEEN: I think that's a question for the jury as to
19 whether the defense would apply. But it is the defense theory,
20 and so if there's any evidence supporting that theory, and if
21 the court feels that this is an appropriate instruction --
22 THE COURT: Well, the facts have to support it.
23 MR. LEEN: Pardon?
24 THE COURT: The facts of the case have to support the
25 instructions, don't they?
779
1 MR. LEEN: Yes, they do.
2 THE COURT: "In addition, the First Amendment protects
3 an individual's right to gather information, provided it is
4 gathered legally." Here he admits he did an illegal act.
5 MR. LEEN: He's admitted an illegal act. I don't --
6 THE COURT: So then how can that exercise the right of
7 free speech?
8 MR. LEEN: I don't know that -- I don't agree that that
9 follows. I think that that's a jury question.
10 THE COURT: Well, it must mean something.
11 MR. LEEN: I think that that's a question for the
12 jury. The court -- the court should not be the finder of fact.
13 As long as there's some evidence that supports the defense
14 theory --
15 THE COURT: All right, then, back up to your first
16 sentence.
17 MR. LEEN: Yes, sir.
18 THE COURT: "The First Amendment protects political
19 speech that encourages others to commit violence."
20 MR. LEEN: I believe that's a statement of black letter
21 law. You're allowed to --
22 THE COURT: Well, I'm asking then if that -- by
23 argument, you're saying, he's not encouraging others to commit
24 violence, but he himself is doing illegal acts. Does that make
25 sense?
780
1 MR. LEEN: Well, it does in the context of this case,
2 Your Honor, because, for example, with Mr. Mueller, he posted
3 information about Mr. Mueller which there could be people who
4 would act on that and take action against Mr. Mueller. But the
5 mere fact that he posted about Mr. Mueller and he does his
6 research, I don't believe brings him within the ambit of the
7 interstate stalking statute. Or at least it's a defense to the
8 interstate stalking statute.
9 You have to remember here that we're not talking about
10 someone who has a romantic relationship or a familial
11 relationship, a business relationship with someone. He's
12 investigating individuals who, other than his theory that they
13 are -- have some knowledge about government, illegal government
14 actions, and to some extent the common thread is that they are
15 all government agents of one sort or another, he's not
16 interested in investigating them. The purpose of his
17 investigation are several --
18 THE COURT: Does political speech -- does political
19 speech protect illegal activities?
20 MR. LEEN: No. However, illegal activities can come
21 out of political speech, like the NCAA case.
22 THE COURT: Yeah, I understand that, but that isn't
23 this case.
24 MR. LEEN: No, that's not -- those are not the facts of
25 this case. But I believe that the fact that the proposed
781
1 instruction is appropriate and should be --
2 THE COURT: So what you're saying is that it's
3 political speech as long as it does not cause others to commit
4 now -- here and now illegal acts, but the declarer can commit
5 illegal acts?
6 MR. LEEN: No, I'm not -- I don't -- I don't think that
7 -- I would agree with you, that would be wrong. But he could
8 say, "I'm going to go burn my draft card." And I think that was
9 a case out of the '70s, and even though that was indicating that
10 the individual who was giving the speech himself was going to do
11 an illegal act, he was allowed to use a First Amendment defense
12 and say, I didn't -- I didn't do it immediately. I was stating
13 a political position. And so I think even such a thing as
14 association -- Assassination Politics or this investigation is
15 protected, to -- to uncover illegal surveillance and government
16 conspiracy --
17 THE COURT: Isn't that the --
18 MR. LEEN: -- is protected.
19 THE COURT: Isn't that the old thought, you might be
20 able to get up in a crowded room and -- or theater and holler
21 fire, but you do so at your own risk?
22 MR. LEEN: Not where political speech is concerned. I
23 think that was the primary moving purpose of the First
24 Amendment. And so when political speech is involved -- and the
25 defendant is an anarchist, he's indicated, or at least has some
782
1 anarchist theories, he's a libertarian, and he wrote this as a
2 political track to bring about political change. You have to
3 give the -- you have to give the --
4 THE COURT: Does someone have --
5 MR. LEEN: Yes, sir.
6 THE COURT: Does someone have the article?
7 MR. LEEN: I have a copy of it, if you want to read
8 it. I believe it's been introduced into evidence.
9 THE COURT: I know it. Read it. I've read it, but
10 read it. If you have it, read it in front of you.
11 MR. LEEN: It would take me an hour and a half to read
12 it, Your Honor. It is extremely dry.
13 MR. LONDON: May I be heard, Your Honor?
14 THE COURT: Yes.
15 MR. LONDON: Your Honor, I think it would be gravely
16 misleading to give this instruction because this instruction
17 appears to suggest to the jury that the defendant is charged
18 with stalking in this case simply on the basis of having
19 published Assassination Politics. He published that article
20 several years ago. If we wanted to charge him for his
21 expression of the ideas in Assassination Politics, we would have
22 done that a long time ago. The fact is, we didn't do that
23 because his expression of the ideas in that article are
24 protected as free speech under the First Amendment.
25 He's not charged in this case because he wrote Assassination
783
1 Politics. He's charged in this case because he persistently did
2 things to try to find the home addresses of three individuals.
3 He in fact found those addresses, or addresses which he believed
4 to be theirs, and he went from one state, across the state line,
5 into another state on more than one occasion, took mail out of
6 one person's mailbox, looked inside another person's mailbox.
7 Went to a third person's home and took photographs there. Then
8 went to the Internet and posted information about these people,
9 and also sent several of these people, in the case of Jeff
10 Gordon, a fax; in the case of Jeff Gordon and Mike McNall,
11 posted an Internet email.
12 THE COURT: Is that free speech?
13 MR. LONDON: No, and he's not being charged for
14 speech. He's being charged for conduct. It's that he crossed
15 state lines, and in the course of doing so, he engaged in
16 conduct that, when reported to these individuals or discovered
17 by them, caused them to be reasonably apprehensive for their own
18 safety.
19 Assassination Politics and the fact that he wrote that may
20 be part of what informed them of their fear or their basis for
21 being afraid of him, but he's not charged for Assassination
22 Politics. He's charged for persistently and excessively trying
23 to find these people, crossing a state line to do it, going to
24 their homes, opening their mailboxes. That's what he's charged
25 for. And that's not speech, and it's not protected speech, and
784
1 to give this instruction would deliberately mislead the jury,
2 I'm afraid.
3 If this were a threat case, if he were charged with actually
4 threatening these individuals, this instruction might be more
5 relevant, although I do note from having done some of those
6 cases that it's not a jury charge. It's a legal matter to have
7 been determined pretrial by the court whether something is
8 protected speech as a matter of law. And under the laws of the
9 United States, whether something rises to the level of what we
10 call a true threat and is thus not protected by the First
11 Amendment, is a matter for the court to decide pretrial. It is
12 not for the jury to be given an instruction.
13 So I believe the instruction invites error in two
14 significant ways. One, it's deliberately misleading. Two, this
15 is not a threat case, this is not a speech case.
16 Mr. Leen will no doubt argue that it is a speech case, but I
17 don't believe an instruction that would mislead the jury of this
18 kind is warranted. It's a conduct case.
19 THE COURT: Mr. Leen.
20 MR. LEEN: United States v. Aguilar, Your Honor, 883
21 F.2d 662, at page 665, a Ninth Circuit case in 1989, which was a
22 sanctuary case, said clearly that a defense based on the First
23 Amendment is a legitimate matter for the jury's consideration.
24 So I think that -- now, the law is clear that just because
25 the defense proposes an instruction in one form doesn't mean
785
1 that the court can't give it another form. There's nothing
2 magic about the words, as long as the essence of the defendant's
3 theory of defense is --
4 THE COURT: But it must have support in the facts of
5 the case. The facts in the case are now before the jury.
6 MR. LEEN: Yes, sir.
7 THE COURT: There's no more argument about what
8 happened. Is that correct?
9 MR. LEEN: There's no more evidence about what
10 happened.
11 THE COURT: That's what I'm talking about.
12 MR. LEEN: Yes, sir.
13 THE COURT: All the evidence is before the jury.
14 MR. LEEN: It is.
15 We just think that the court -- the prosecutor is asking the
16 court to weigh the merits of the defense, not whether there is
17 any evidence for the defense, because clearly there's some
18 evidence for the defense, and we submit that that's all that has
19 to exist for the defendant to have the right to that instruction
20 being given.
21 THE COURT: Hasn't there been at least one of the
22 abortion cases where medical people have been killed?
23 MR. LEEN: Yes, sir.
24 THE COURT: Was this instruction given in that type of
25 situation?
786
1 MR. LEEN: I think that that individual was just
2 arrested.
3 THE COURT: Well --
4 MR. LEEN: Oh, in other cases, whether or not --
5 THE COURT: Wasn't there one in Boston?
6 MR. LEEN: Well, okay. There have been past cases. I
7 don't know if such an instruction were given, but that wouldn't
8 apply to this case because --
9 THE COURT: Well, would it apply to those cases where
10 the courts have given the restraining order against picketing
11 medical clinics? They have to be so far back and so far away.
12 MR. LEEN: I think that most of the persons who were
13 prosecuted under those --
14 THE COURT: So then there cannot be immediate physical
15 harm?
16 MR. LEEN: Well, I don't claim to have any expertise,
17 but I think that those were civil contempt proceedings based on
18 the violation of an injunction, not criminal prosecution.
19 THE COURT: Well, the injunction can't be in violation
20 of your constitutional rights, can it?
21 MR. LEEN: Well, there's -- you know, there's been a
22 lot of litigation about the legality of these, these restraining
23 orders against anti-abortionists and how narrow they have to be
24 tailored, and they have to really give due deference to the
25 First Amendment right of people who want to protest. And some
787
1 have been --
2 THE COURT: Let me ask you this.
3 MR. LEEN: -- stabbed at for being too broad.
4 THE COURT: Is there a distinction in this case without
5 a difference with the cases, such as this one, against
6 government agents of doing their job, such as the IRS in this
7 case, in the abortion cases?
8 MR. LEEN: Well, I --
9 THE COURT: Against the doctors?
10 MR. LEEN: I would say yes because --
11 THE COURT: What's the difference?
12 MR. LEEN: These government agents are, I think --
13 well, first of all, they are public figures. They have taken
14 actions in their -- and their official actions have caused
15 citizens like Mr. Bell and others in the Multnomah County Common
16 Law Court to take political --
17 THE COURT: Well, what --
18 MR. LEEN: -- responses to those positions.
19 THE COURT: You keep referring -- I haven't heard
20 anybody explain it to the jury what the Multnomah Common Law
21 Court is. Has no standing whatsoever.
22 MR. LEEN: No, it's a political group, Your Honor.
23 THE COURT: I understand what it is.
24 MR. LEEN: It's entitled to First Amendment association
25 of speech rights.
788
1 THE COURT: I understand what it is.
2 MR. LEEN: Yes, sir.
3 THE COURT: Primarily aimed at the income tax.
4 MR. LEEN: Yes.
5 THE COURT: And the agents, IRS agents, who are
6 enforcing it.
7 MR. LEEN: But not completely. I mean, they have
8 other -- they do other -- they have other ideas as well. They,
9 for example, some of them don't accept the court's jurisdiction,
10 the fringe on the flag. There are a lot of different variations
11 of their beliefs, depending from common law court to common law
12 court. But they're all -- but they are all political in nature
13 and they're all entitled, however strange or bizarre they may
14 seem.
15 THE COURT: What do you mean, political?
16 MR. LEEN: They have a belief --
17 THE COURT: Are the --
18 MR. LEEN: I'm sorry.
19 THE COURT: Are the IRS laws political? I thought they
20 were passed by the congress and signed by the President of the
21 United States and under the law of the land.
22 MR. LEEN: I think that -- I think that --
23 THE COURT: What is the difference?
24 MR. LEEN: -- any citizen has --
25 THE COURT: What is the difference in these cases and a
789
1 police officer enforcing the 50-mile-an-hour speed limit?
2 MR. LEEN: An officer --
3 THE COURT: What is the difference?
4 MR. LEEN: An officer could do that, and there would be
5 no right to speed because you objected to the speed limit. But
6 once he stopped you and pulled you over, you would be entitled
7 to make public protest in some manner of that officer saying
8 that he was enforcing a law that you felt was illegal and which
9 the municipality or the city or the state had no right to pass.
10 You would be allowed to protest that type of law and say --
11 THE COURT: And protest it by committing illegal acts?
12 MR. LEEN: No, that is never a justification. But he's
13 not charged with mail -- with tampering with the mail or
14 stealing mail.
15 THE COURT: But if I understand the gist of the law, as
16 long as it doesn't cause others -- others, other than the
17 speaking party whose claiming the constitution -- to commit
18 immediate illegal acts, it's okay?
19 MR. LEEN: That's true.
20 THE COURT: But I can do it, but Susie Smith and John
21 Doe can't do it?
22 MR. LEEN: No. My exposing of, of illegal -- of future
23 illegal actions, particularly political actions, is protected
24 but doesn't, it justify me doing something illegal. But he's
25 not charged with interfering with mail or using a CD-ROM in
790
1 violation of state law. His behavior is investigating the five
2 interstate stalking counts, which are three people. And the
3 defense argues that he is entitled to do that because of the
4 nature of what he is trying to prove, which is -- because the
5 statute has two intents. Of course, it's reasonable for the
6 victim to assume that he's up to -- going to cause them harm.
7 But his intent is equally important, and his intent is
8 protected. His intent, however --
9 THE COURT: What do you mean, his intent is protected?
10 MR. LEEN: If his intent is to gather information so
11 that he can expose public corruption, that is perfectly a
12 legitimate basis to gather information.
13 THE COURT: Is this an intent crime?
14 MR. LEEN: Yes.
15 THE COURT: Well, the burden is on the government by
16 proof beyond a reasonable doubt. He has no proof.
17 MR. LEEN: No, but --
18 THE COURT: I mean no burden of proof.
19 MR. LEEN: That, of course, is so, but he's entitled --
20 if there is a defense that applies, he should be entitled to
21 have the jury instruction.
22 THE COURT: If it applies.
23 MR. LEEN: If it applies.
24 THE COURT: To the facts.
25 MR. LEEN: We submit it does.
791
1 MR. LONDON: The First Amendment has never offered a
2 defense of coming onto someone's property at one o'clock in the
3 morning and staying there for ten minutes. And the First
4 Amendment has never offered a defense to going to someone's
5 house that you're looking for, stealing the mail out of their
6 box and taking their information from them. If all Mr. Bell had
7 done was post some stuff on the Internet about people, if all he
8 had done was publish Assassination Politics, then I can
9 understand where you might want to instruct the jury on a First
10 Amendment defense. But he's not charged because he published
11 Assassination Politics. He's not charged because he wrote some
12 stuff on the Internet.
13 THE COURT: Are you saying his conduct entirely negated
14 speech?
15 MR. LONDON: Yes. He's not charged for speech. He's
16 charged for going to people's homes and pursuing them and,
17 unfortunately for Mr. Bell, having crossed a state line in the
18 course of doing it. And he's charged for doing all of that with
19 the intent to harass these people. And I don't see how there's
20 any speech component in there that's protected by the First
21 Amendment. If all he had been doing was --
22 THE COURT: I understand the stalker statute is fairly
23 new?
24 MR. LONDON: Actually, the stalker statute is not
25 fairly new. It's been around for a while, but --
792
1 THE COURT: What's for a while?
2 MR. LONDON: Well, in 1996, Your Honor, it was passed
3 primarily --
4 THE COURT: That's new.
5 MR. LONDON: Well, it's relatively recent; let's say
6 that.
7 THE COURT: Has it made its way to the Supreme Court
8 yet?
9 MR. LONDON: It's been --
10 MR. LEEN: No.
11 MR. LONDON: Well, the Supreme Court, I believe, has
12 denied cert on certain constitutional challenges to it.
13 But, Your Honor, in -- it was passed in the first version of
14 the statute to stop people in domestic violence situations, for
15 example.
16 THE COURT: In your brief -- in your brief is -- any of
17 the cases that have decided it at the appellate court level,
18 specifically the Ninth Circuit?
19 MR. LONDON: The Ninth Circuit has not had an
20 opportunity to address it. In our trial memorandum, we have
21 cited to the cases in which there were constitutional challenges
22 to the statutory scheme of Title 18, 2261, and it has in all
23 respects been found to be constitutional whenever it has been
24 challenged. Most of the challenges have been in the District of
25 Maine, Washington, D.C., the Eighth Circuit.
793
1 But I point the court to U.S. v. Bailey, which is a Fourth
2 Circuit case upholding 2261, and also U.S. V. Wright, another
3 Eighth Circuit case. There the Supreme Court denied cert. in
4 what was a constitutional challenge to the statute. U.S. v.
5 Crawford, which is a case this year, 2001, out of Maine, again
6 upholding the statute's constitutionality. The Brown case is a
7 case out of Maine in 1999. They addressed what elements the
8 government has to prove, and those have been found to be three:
9 Crossing of a state line, with the intent of harassing or
10 intimidating another person, and thereby causing reasonable fear
11 in that person, either for himself or for his family.
12 Our proof in this situation has been that the defendant did
13 a number of things. Talking about conduct: Travel, looking in
14 mailboxes. It's not simply the fact that he's looking at
15 publicly available databases or simply going on the Internet and
16 writing things. If that's all he had done, none of us would be
17 here today because we don't charge cases against people simply
18 for exposing an idea or writing an email. We charge them for
19 conduct such as going to their homes and stealing their mail in
20 an attempt to harass them.
21 There's admittedly some speech components because if he
22 takes information that he learns from these people by stealing
23 their mail and then splashes it on the Internet, that's
24 understandable as part of an attempt to harass them or
25 intimidate them. But I beg Mr. Leen to explain to me how that
794
1 kind of harassment is protected under the First Amendment when
2 it's coupled with showing up at their homes and stealing their
3 mail.
4 The abortion cases you mentioned, Your Honor --
5 THE COURT: Well, the issue is, Mr. London -- not
6 explaining to you, explaining to me, since I'm the one that's
7 going to have to instruct the jury, not the United States.
8 MR. LEEN: Could I respond, Your Honor? Just briefly,
9 because I know the issue is pretty exhausted.
10 But the person's whose house where he went into their
11 mailbox, they're not charged with being victims of stalking. If
12 they were, Mr. London's argument makes sense. And the Groeners,
13 where he went on their property at midnight and supposedly
14 looked at the Andrews mailbox, they're not charged as victims,
15 either. So the only people -- I mean, that could clearly
16 constitute illegal behavior, but he's charged merely --
17 merely -- he's charged with stalking Scott Mueller, who he never
18 contacted, did nothing illegal towards him. Jeff Gordon --
19 THE COURT: What's your interpretation of stalking?
20 MR. LEEN: Well, I think --
21 THE COURT: Do you disagree with the statutory
22 statement?
23 MR. LEEN: Well, I -- we've argued at the half time
24 motion that the statutory scheme was unconstitutional. We would
25 adopt it again. The court, however, has denied that motion.
795
1 THE COURT: Well, I've ruled against that.
2 MR. LEEN: You have.
3 THE COURT: As apparently all courts have.
4 MR. LEEN: I -- and the statute, I believe, requires
5 two things, and it requires an intent on the part of the actor,
6 the person who is committing the crime, and that he travel in
7 interstate commerce, under the new statute.
8 THE COURT: Well, we got him from Washington into
9 Oregon.
10 MR. LEEN: And courts have upheld that as interstate
11 travel, being interstate commerce, that -- if we look at the
12 reasonableness of Mike McNall and Jeff Gordon and Scott
13 Mueller's intent that, that somehow this information or Mr.
14 Bell's activities could cause them harm or injury to themselves
15 and to their family, certainly there's more than enough evidence
16 for the jury to find that beyond a reasonable doubt.
17 But as it relates to his intent, Mr. Bell's intent, this is
18 a man who I've suggested to you was suffering from a major
19 mental disorder. The court has said no, he's not, he's
20 competent. But whatever this man's intent was, you can't say,
21 well, a reasonable person would have intended to harass. You
22 have to take Mr. Bell as you find him, and Mr. Bell has made it
23 perfectly clear that his intent -- and this is a -- this is a
24 man who I have suggested to you is unstable, but that he is
25 being truthful when he tells you that his intent was to
796
1 investigate and expose. And if that's the purpose of his
2 conduct, then it really is an integral part of the First
3 Amendment and his right to -- particularly since he has these
4 political views, and they fit right into his political views, to
5 publish them to newspapers, on the Internet, and to other people
6 who share his political views and his -- his thoughts about
7 ongoing illegal government surveillance.
8 So that's why I think that this instruction is appropriate.
9 MR. LONDON: The First Amendment has never been held to
10 justify trespassing on private property, and it has never been
11 justified -- it has never been held to justify mail theft in the
12 pursuit of investigation or research or speech.
13 THE COURT: Oh, I'm going to deny the instruction.
14 In anticipation of what's going to happen, without knowing,
15 on the argument by the government, on this question of perjury,
16 is that a question of law or a question of fact?
17 MR. LONDON: Which -- I'm sorry, Your Honor. Relating
18 to the perjury, I don't understand?
19 THE COURT: Of the defendant.
20 MR. LEEN: We're not -- we cross-examined him using
21 evidence that he had lied to this court on a financial
22 affidavit. We did it because we're entitled --
23 THE COURT: I'm not addressing that issue. I'm
24 addressing the issue where he pled guilty before another judge
25 and now disavows it. How are you going to handle that?
797
1 MR. LONDON: Well --
2 THE COURT: That's why I'm asking. Is perjury a matter
3 of law? In other words, I guess I'm asking, words are easily
4 bandied about. But in this case, does perjury go to the jury?
5 MR. LONDON: No.
6 THE COURT: Because that's what you were getting to in
7 your cross-examination.
8 MR. LONDON: Well, I was trying to get him to admit
9 what was a matter of public record based on his guilty plea in
10 1997.
11 THE COURT: Well, it speaks for itself, doesn't it?
12 MR. LONDON: He acknowledged then that the purpose of
13 his acts at the time were to intimidate IRS and other federal
14 offices -- or federal officers. He now is backing away from
15 that based on a claim that his guilty plea at the time was
16 coerced. So the jury has the facts in front of them and they
17 can decide whether he was being truthful today or then.
18 THE COURT: Well, when asked, he specifically denied
19 it, the way I understand it, in the other court proceedings.
20 MR. LONDON: In the other court proceedings he
21 acknowledged his intent at the time. Today he wants the jury to
22 believe that he was coerced into doing that, and that's part of
23 his claim of a conspiracy against him. But I don't think it's a
24 matter that goes to this jury as a perjury question. It's
25 simply a question that, I suppose, is related to his credibility
798
1 that we would be free to argue on closing argument. But as a
2 practical matter I don't even really intend to dwell on that in
3 closing argument.
4 THE COURT: Anything else?
5 MR. LONDON: No.
6 THE COURT: In anticipation that we won't have the
7 jury -- I'm not trying to constrain either party's closing
8 arguments. I'm just trying to foresee any problems that the
9 jury goes back and forth while we argue an issue.
10 MR. LEEN: Your Honor, the defense -- we were in the
11 midst of taking exceptions, and I would ask the court to give an
12 intent instruction to find intent. We don't have a -- I didn't
13 see that we have an instruction that defines intent, just
14 knowledge. Maybe I missed that.
15 THE COURT: Is it specific intent or general intent?
16 MR. LEEN: I think that this crime requires a specific
17 intent.
18 THE COURT: Or is it general intent?
19 MR. LEEN: No, I think it requires a specific intent.
20 It has to be the intent to injure -- excuse me. As modified,
21 the intent to harass, which is a specific intent.
22 MR. LONDON: I don't think we submitted an instruction
23 other than the knowledge instruction.
24 THE COURT: Yes.
25 MR. LONDON: The Ninth Circuit disfavors a specific
799
1 intent instruction, which is why there is none included in the
2 pattern jury instructions.
3 THE COURT: I think the question of knowledge takes
4 care of that. So I would deny that, at least at this time.
5 MR. LEEN: And finally, we would request that you -- I
6 will have to draft one tonight, but that there be an instruction
7 that they should not hold it against the defendant that he
8 invoked his Fifth Amendment privilege to a question propounded
9 by the prosecution.
10 THE COURT: Government?
11 MR. LONDON: I have no objection.
12 THE COURT: Does that call for a specific instruction?
13 MR. LEEN: I think that -- I think -- in the state
14 court it does. You know, I have never had that --
15 THE COURT: We're not in the state court.
16 MR. LEEN: I understand. I have never had that
17 question come up and I haven't looked at the model
18 instructions. I don't recall that there is one, but what I
19 would be asking for is that the court instruct that the
20 invocation -- that you should not draw any adverse inference
21 from an individual's invocation of his Fifth Amendment privilege
22 that has been sustained by the court.
23 THE COURT: Well, you don't think that the catch all --
24 "You have heard evidence of other acts by the defendant. You
25 may consider that evidence only as it bears on the defendant's
800
1 identity and motive and for no other purpose."
2 MR. LEEN: I could add it at the end of that as a
3 sentence, but I think it should be given because most people
4 assume the worst when they hear the invocation of the Fifth
5 Amendment. And there is -- there shouldn't be an adverse
6 inference for invoking the Fifth Amendment, if appropriate.
7 THE COURT: Anything else?
8 MR. LEEN: We would -- maybe this is a good time to do
9 so -- make a motion for judgment of acquittal at the end of all
10 of the evidence.
11 THE COURT: Go ahead.
12 MR. LEEN: Based on the same reasons as submitted to
13 the court previously. We had argued, one, the
14 unconstitutionality of the statute; second, that there is
15 insufficient evidence as a matter of law on all five counts. I
16 adopt the arguments that I made before.
17 I would just point out again that number three, which talks
18 about using the facsimile machine, requires a course of conduct,
19 and a course of conduct is, under the rule of lenity, I think,
20 suggests more than one instance, and the evidence is clear there
21 was only one instance of the use of a facsimile machine.
22 Now, defendant said he had a different intent, but that I
23 think is a question for the jury. But as to whether or not it
24 happened on multiple occasions or one occasion, I believe that's
25 significant, and there's only evidence that it happened once.
801
1 So we would argue that that count should be dismissed under Rule
2 29 at the end of all of the government's case and the defense's
3 case.
4 THE COURT: Government.
5 MR. LONDON: Your Honor, the sending of that facsimile
6 was indeed the sending of one facsimile, but multiple steps were
7 required in order to do that. First of all, he had to compose a
8 message. He had to compose a message that was intimidating, and
9 he did that. He had to find the cover sheet that had been sent
10 to him by his attorney that Mr. Gordon had originally sent. He
11 had to then think about what message to send, write it on there,
12 put it in the fax machine, think about whether or not to send
13 it. Presumably think about the wisdom or advisability of
14 sending it. He had to dial that number into the fax machine.
15 He had to make sure he had that number right. He had to think
16 one more time, presumably, about whether to hit the send button,
17 and he hit the send button. That's a series of isolated actions
18 that are all part of the sending of the facsimile. They all
19 require deliberation. They require that they be thought
20 through. And it takes some time, maybe not a great deal of
21 time, but it's another course of conduct to defeat this argument
22 about one fax simply not being supportable under the charge of
23 the statute.
24 THE COURT: It's your motion. Do you care to --
25 MR. LEEN: No. I stated my piece.
802
1 THE COURT: The defendant's motions are denied.
2 Then finally --
3 MR. LEEN: Are you --
4 THE COURT: Pardon?
5 MR. LEEN: I was just going to renew all of the
6 mistrial motions that I made previously, Your Honor.
7 THE COURT: They will be denied. Same rulings as
8 previously made.
9 MR. LEEN: Yes, sir.
10 THE COURT: Now, that brings us down to reading the
11 instructions, is that correct?
12 MR. LEEN: (Nods head.)
13 THE COURT: All right. Each party has until nine
14 o'clock tomorrow morning to submit any further instructions or
15 modifications or changes to any of the instructions as they now
16 stand.
17 Do you understand?
18 MR. LEEN: Yes, sir.
19 THE COURT: Any question?
20 MR. LONDON: I have --
21 THE COURT: About procedure.
22 MR. LONDON: No, not about that, Your Honor. I do have
23 one other thing I would like to raise on the record.
24 THE COURT: Okay.
25 MR. LONDON: This morning the defendant came out and
803
1 accused Mr. Leen of having made threats against him. He said,
2 and said in front of the jury on a number of occasions, that he
3 continued to be unrepresented in his view.
4 I would like the court reporter to note, and I would like
5 the record to reflect, that even since making those statements,
6 he has today continued to converse with Mr. Leen, to consult
7 with him, to pass him notes, and to receive the benefit of his
8 counsel.
9 THE DEFENDANT: Do I have an alternative, sir?
10 THE COURT: Where are we now?
11 MR. LONDON: Nothing further.
12 THE COURT: Is that in the form of a motion?
13 MR. LONDON: No, I'm simply asking -- you know, it's
14 not a motion, Your Honor. I am simply stating that on the
15 record. I don't know whether it's required that the court make
16 that finding. That would certainly be helpful to us on our
17 record on appeal, if on appeal it becomes an issue.
18 THE COURT: I have previously made such a finding, and
19 I have no reason after today's proceeding to change it in any
20 way.
21 MR. LONDON: Thank you, Your Honor.
22 THE COURT: The observations that I made previously
23 will still stand.
24 Anything else?
25 MR. LONDON: No, Your Honor.
804
1 THE CLERK: Show them the verdict form, Your Honor.
2 THE COURT: Have you seen the verdict form?
3 MR. LONDON: Yes, sir.
4 THE COURT: Both parties?
5 Any exceptions to the verdict form?
6 MR. LEEN: No, Your Honor.
7 MR. LONDON: None.
8 THE COURT: All right. As is the court's practices,
9 the -- there are 14 prospective jurors. All jurors will hear
10 the closing arguments, but before the jury retires to reach a
11 verdict, two of them will be excused. Do you understand?
12 MR. LEEN: Yes, sir.
13 THE COURT: It is usually the last two selected, unless
14 there are certain circumstances that the court should consider
15 other procedures.
16 Do you understand?
17 MR. LEEN: Yes, sir.
18 THE COURT: All right. The court's in recess. 9:30
19 tomorrow morning.
20 (Recessed at 3:45 p.m.)
21
C E R T I F I C A T E
22 I certify that the foregoing is a correct transcript from
the record of proceedings in the above-entitled matter.
23
24
________________________________ October 22, 2001
25 JULAINE V. RYEN Date
HTML by Cryptome.