24 November 2001
Source: Digital files from Court Reporter Julaine V. Ryen, Western District
of Washington, Tacoma, WA. Telephone: (253) 593-6591
This is Day 6 of the testimony.
See other testimony: http://cryptome.org/usa-v-jdb-dt.htm
805
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 10, 2001
)
8 Defendant. )
)
9
10 VOLUME 6
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.
806
1 I N D E X
2 Page
3 VOLUME 6 805 - 834
4 Court's Instructions to the Jury ................. 807
5 Alternate Jurors excused ......................... 819
6 Note From the Jury ................................ 821
7 Second Note From the Jury/Verdict ................. 824
8 Defendant's Motion for a Mistrial ................ 826
Denied ....................................... 826
9
Jury Polled ...................................... 829
10
Jury Excused ..................................... 830
11
Defendant's Motion to Dismiss Counts 1, 4, and 5 .. 830
12 Granted Without Prejudice .................... 830
13 Defendant's Motion to Dismiss Counts 2 and 3 ..... 830
Denied ....................................... 830
14
15
16
17
18
19
20
21
22
23
24
25
807
1 (Defendant present.)
2 MORNING SESSION
3 (Jury not present; 9:40 a.m.)
4 THE COURT: Are you ready for the jury?
5 MR. LEEN: Your Honor, the defendant would just like to
6 make two exceptions to the jury instructions that I didn't make
7 clear yesterday, numbers 12 and 19.
8 Thank you.
9 THE COURT: Ready for the jury, right?
10 MR. LONDON: Yes, Your Honor.
11 THE COURT: All right. Bring the jury.
12 MR. LEEN: That's 16; 12 and 16, not 19. A
13 misstatement by me.
14 THE COURT: All right.
15 (Jury present; 9:43 a.m.)
16 THE COURT: All right. Let the record reflect all
17 jurors are present.
18 Mr. London, does the government rest?
19 MR. LONDON: Yes, Your Honor. The government has
20 rested.
21 THE COURT: Does the defendant rest, Mr. Leen?
22 MR. LEEN: Yes, Your Honor.
23 THE COURT: All right.
24 Members of the jury, now that you have heard all the
25 evidence, it is my duty to instruct you on the law which applies
808
1 to this case. A copy of these instructions will be available in
2 the jury room for you to consult if you find it necessary.
3 It is your duty to find the facts from all the evidence in
4 the case. To those facts you will apply the law as I give it to
5 you. You must follow the law as I give it to you whether you
6 agree with it or not, and you must not be influenced by any
7 personal likes or dislikes, opinions, prejudices, or sympathy.
8 That means that you must decide the case solely on the evidence
9 before you. You will recall that you took an oath promising to
10 do so at the beginning of the case.
11 In following my instructions you must follow all of them and
12 not single out some and ignore others. They are all equally
13 important. And you must not read into these instructions or
14 into anything the court may have said or done any suggestion as
15 to what verdict you should return -- that is a matter entirely
16 up to you.
17 The indictment is not evidence. The defendant is presumed
18 to be innocent and does not have to testify or present any
19 evidence to prove innocence. The government has the burden of
20 proving every element of the charge beyond a reasonable doubt.
21 If it fails to do so, you must return a not guilty verdict.
22 A separate crime is charged in each count. You must decide
23 each count separately. Your verdict on one count should not
24 control your verdict on any other count.
25 You are here only to determine whether the defendant is
809
1 guilty or not guilty of the charges in the indictment. Your
2 determination must be made only from the evidence in the case.
3 The defendant is not on trial for any conduct or offense not
4 charged in the indictment. You should consider evidence about
5 the acts, statements, and intentions of others, or evidence
6 about other acts of the defendant, only as they relate to this
7 charge against this defendant.
8 In reaching your verdict you may consider only the testimony
9 and exhibits received into evidence. Certain things are not
10 evidence, and you may not consider them in deciding what the
11 facts are. I will list them for you:
12 1. Arguments and statements by lawyers are not evidence.
13 The lawyers are not witnesses. What they have said in their
14 opening statements, closing arguments and at other times is
15 intended to help you interpret the evidence, but is not
16 evidence. If the facts as you remember them differ from the way
17 the lawyers have stated them, your memory of them controls.
18 2. Questions and objections by lawyers are not evidence.
19 Attorneys have a duty to their clients to object when they
20 believe a question is improper under the rules of evidence. You
21 should not be influenced by the objection or by the court's
22 ruling on it.
23 3. Testimony that has been excluded or stricken, or that
24 you have been instructed to disregard, is not evidence and must
25 not be considered. In addition, some testimony and exhibits
810
1 have been received only for a limited purpose; where I have
2 given a limiting instruction, you must follow it.
3 4. Anything you may have seen or heard when the court was
4 not in session is not evidence. You are to decide the case
5 solely on the evidence received at the trial.
6 The evidence from which you are to decide what the facts are
7 consists of (1) the sworn testimony of witnesses, both on direct
8 and cross-examination, regardless of who called the witness; (2)
9 the exhibits which have been received into evidence; and (3) any
10 facts to which all the lawyers have agreed or stipulated.
11 Evidence may be direct or circumstantial. Direct evidence
12 is direct proof of a fact, such as testimony of an eyewitness.
13 Circumstantial evidence is indirect evidence, that is, proof of
14 a chain or facts from which you could find that another fact
15 exists, even though it has not been proved directly. You are to
16 consider both kinds of evidence. The law permits you to give
17 equal weight to both, but it is for you to decide how much
18 weight to give to any evidence.
19 A reasonable doubt is a doubt based upon reason and common
20 sense, and may arise from a careful and impartial consideration
21 of all the evidence, or from lack of evidence. Proof beyond a
22 reasonable doubt is proof that leaves you firmly convinced that
23 the defendant is guilty.
24 If after a careful and impartial consideration with your
25 fellow jurors of all the evidence, you are not convinced beyond
811
1 a reasonable doubt that the defendant is guilty, it is your duty
2 to find the defendant not guilty. On the other hand, if after a
3 careful and impartial consideration with your fellow jurors of
4 all the evidence, you are convinced beyond a reasonable doubt
5 that the defendant is guilty, it is your duty to find the
6 defendant guilty.
7 To convict the defendant of the offense charged in count one
8 of the indictment, you must find that the government has proven
9 the following elements of the offense beyond a reasonable
10 doubt:
11 (1) On or about October 23rd, 2000, the defendant traveled
12 across a state line from Vancouver, Washington, into the state
13 of Oregon;
14 (2) with the intent to harass Mike McNall; and
15 (3) as a result of such travel placed Mike McNall in
16 reasonable fear of death or serious bodily injury to himself or
17 to his immediate family.
18 To convict the defendant of the offense charged in count two
19 of the indictment, you must find that the government has proven
20 the following elements of the offense beyond a reasonable
21 doubt:
22 (1) On or about October 23rd, 2000, the defendant traveled
23 from Vancouver, Washington, across a state line and into the
24 state of Oregon;
25 (2) with the intent to harass Jeff Gordon; and
812
1 (3) as a result of such travel placed Jeff Gordon in
2 reasonable fear of death or serious bodily injury to himself or
3 to his immediate family.
4 To convict the defendant of the offense charged in count
5 three of the indictment, you must find that the government has
6 proved the following elements beyond a reasonable doubt:
7 (1) On or about October 31st, 2000, the defendant knowingly
8 and intentionally used a facility or instrument of interstate
9 commerce, in this case a facsimile machine and a telephone line;
10 (2) to send a message over the telephone line from
11 Vancouver in the state of Washington to Jeff Gordon in the state
12 of Oregon;
13 (3) with the intent and purpose of placing Jeff Gordon in
14 reasonable fear of death or serious bodily injury to himself or
15 to his immediately family; and
16 (4) this message placed Gordon in reasonable fear of death
17 or serious bodily injury to himself or to his immediate family.
18 To convict the defendant of the offense charged in count
19 four of the indictment, you must find the government has proven
20 the following elements of the offense beyond a reasonable
21 doubt:
22 (1) On or about November 3rd, 2000, the defendant traveled
23 across a state line, from Vancouver in the State of Washington
24 and into the state of Oregon; and
25 (2) traveled in interstate commerce;
813
1 (3) with the intent to harass Scott Mueller; and
2 (4) as a result of such travel placed Scott Mueller in
3 reasonable fear of death or serious bodily injury to himself or
4 his immediate family.
5 To convict the defendant of the offense charged in count
6 five of the indictment, you must find that the government has
7 proven the following elements of the offense beyond a reasonable
8 doubt:
9 (1) On or about November 10, 2000, the defendant traveled
10 from Vancouver, Washington, across a state line and into the
11 state of Oregon; and
12 (2) traveled in interstate commerce;
13 (3) with the intent to harass Mike McNall; and
14 (4) as a result of such travel placed Mike McNall in
15 reasonable fear of death or serious injury -- bodily injury to
16 himself or his immediate family.
17 As to counts four and five, if you find that the defendant
18 traveled across the state lines from Washington to Oregon, then
19 you may find that he traveled in interstate commerce.
20 An act is done knowingly if the defendant is aware of the
21 act and does not act or fail to act through ignorance, mistake,
22 or accident. The government is not required to prove that the
23 defendant knew that his acts or omissions were unlawful. You
24 may consider evidence of the defendant's words, acts, or
25 omissions, along with all the other evidence, in deciding
814
1 whether the defendant acted knowingly.
2 You have heard evidence of other acts by the defendant. You
3 may consider that evidence only as it bears on the defendant's
4 identity and motive and for no other purpose.
5 You have heard testimony that the defendant made
6 statements. It is for you to decide (1) whether the defendant
7 made these statements, and (2) if so, how much weight to give to
8 them. In making those decisions, you should consider all of the
9 evidence about the statements, including the circumstances under
10 which the defendant may have made them.
11 Certain charts and summaries have been received into
12 evidence. Charts and summaries are only as good as the
13 underlying supporting material. You should, therefore, give
14 them only such weight as you think the underlying material
15 deserves.
16 You have heard testimony from an undercover agent who was
17 involved in the government's investigation in this case. Law
18 enforcement officials are not precluded from engaging in stealth
19 and deception, such as the use of informants and undercover
20 agents, in order to apprehend persons engaged in criminal
21 activities. Undercover agents and informants may properly make
22 use of false names and appearances and may properly assume the
23 roles of members in criminal organizations. The government may
24 utilize a broad range of schemes and ploys to ferret out
25 criminal activity.
815
1 You have heard testimony from persons described as experts.
2 Persons who, by education and experience, have become expert in
3 some field may state their opinion on matters in that field and
4 may also state their reasons for the opinion.
5 Expert opinion testimony should be judged just like any
6 other testimony. You may accept it or reject it, and give it as
7 much weight as you think it deserves, considering the witness'
8 education and experience, the reasons given for the opinion, and
9 all the other evidence in the case.
10 I now have four other instructions, but I'm going to read
11 them to you after the closing arguments of respective counsel,
12 both for the government and the defendant. The parties both
13 know about it.
14 I think I should tell both parties now, I made a mistake
15 when I said I'm going to exclude that two party, and it says you
16 are to consider the defendant's testimony just as any other
17 witness. That will be given. Do you understand?
18 MR. LEEN: Yes, Your Honor.
19 THE COURT: You now have notice of the four I'm going
20 to withhold, but you are free to comment on them to the jury.
21 You are not to single out any instruction, but you are to
22 consider them as a whole.
23 You will now hear the opening closing on behalf of the
24 government.
25 Mr. London.
816
1 * * * * *
2 (Closing arguments were not ordered.)
3 * * * * *
4 AFTERNOON SESSION
5 * * * * *
6 (Closing arguments were not ordered.)
7 * * * * *
8 THE COURT: Okay. I have four more instructions. Even
9 though I'm reading them after the closing closing by the
10 government, you are to consider them just as though I have read
11 them with the foregoing that I had previously read to you.
12 In deciding what the facts are, you must consider all the
13 evidence. In doing this, you must decide what testimony to
14 believe and what testimony not to believe. You may disbelieve
15 all or any part of any witness' testimony. In making that
16 decision, you may take into account a number of factors,
17 including the following:
18 1. Was the witness able to see, or hear, or know the things
19 about which that witness testified?
20 2. How well was the witness able to recall and describe
21 those things?
22 3. What was the witness' manner while testifying?
23 4. Did the witness have an interest in the outcome of this
24 case or any bias or prejudice concerning any party or any matter
25 involved in the case?
817
1 5. How reasonable was the witness' testimony considered in
2 light of all the evidence in the case?
3 6. Was the witness' testimony contradicted by what that
4 witness had said or done at another time, or by the testimony of
5 other witnesses, or by other evidence?
6 In deciding whether or not to believe a witness, keep in
7 mind that people sometimes forget things. You need to consider,
8 therefore, whether a contradiction is an innocent lapse of
9 memory or an intentional falsehood, and that may depend on
10 whether it has to do with an important fact or with only a small
11 detail.
12 The weight of the evidence presented by each side does not
13 necessarily depend on the number of witnesses testifying on one
14 side or the other. You must consider all the evidence in the
15 case, and you may decide that the testimony of a smaller number
16 of witnesses on one side has greater weight than that of a
17 larger number on the other.
18 You should judge the testimony of the defendant just as you
19 should judge the testimony of any other witness.
20 The punishment provided by law for this crime is for the
21 court to decide. You may not consider punishment in deciding
22 whether the government has proved its case against the defendant
23 beyond a reasonable doubt.
24 The verdict must represent the considered judgment of each
25 juror. In order to return a verdict, it is necessary that each
818
1 juror agree thereto. Your verdict must be unanimous.
2 It is your duty, as jurors, to consult with one another, and
3 to deliberate with a view to reaching an agreement, if you can
4 do so without violence to individual judgment. Each of you must
5 decide the case with your fellow jurors. In the course of your
6 deliberations, do not hesitate to reexamine your own views, and
7 change your opinion, if convinced it is erroneous. But do not
8 surrender your honest conviction as to the weight or effect of
9 evidence, solely because of the opinion of your fellow jurors,
10 or for the mere purpose of returning a verdict.
11 Remember at all times, you are not partisans. You are
12 judges -- judges of the facts. Your sole interest is to seek
13 the truth from the evidence in the case.
14 Upon retiring to the jury room for your deliberations, you
15 will select one of your number to act as the presiding juror.
16 The presiding juror will preside over your deliberations and
17 will be your spokesperson here in court.
18 Forms of the verdict have been prepared for your
19 convenience.
20 You will take this form to the jury room and, when you have
21 reached unanimous agreement as to your verdict, you will have
22 your presiding juror fill in, date, and sign the form which sets
23 forth the verdict upon which you unanimously agree, and then
24 return with your verdict to the courtroom.
25 It's a one-page verdict form, and it's got a blank for
819
1 whatever you find and it is self-explanatory, but you should
2 read it before you attempt to fill it out. And you will have a
3 copy of these instructions, together with those exhibits that
4 were admitted by the court.
5 But now, there are 14, and there can only be 12 in the jury
6 room. So [Alternate Jurors' names withheld by order of the
7 Court] are now excused. There can only be 12 in that jury room
8 to discuss this case. Okay?
9 For the first time, I will tell you, start discussing the
10 case just as soon as you get in the jury room, which will be
11 right now. Please go to the jury room.
12 Have both parties looked at those exhibits that were
13 admitted by the court?
14 MR. LEEN: I haven't looked at them yet, Your Honor.
15 THE COURT: Do you want to look at them?
16 MR. LEEN: Yes.
17 THE COURT: Now. The jury is waiting for them.
18 MR. LEEN: Fine, Your Honor. Thank you.
19 THE COURT: All right. In anticipation that the jury
20 might want to use the screens again, be prepared, upon request,
21 as I won't allow them to go in the jury room to do it. They
22 will have to do it here, on the machines, in the presence of the
23 defendant and his counsel. Any misunderstanding?
24 MR. LONDON: No, Your Honor.
25 MR. LEEN: No.
820
1 THE COURT: Was there any evidence in this case
2 admitted that is not now in the jury room?
3 THE CLERK: No, Your Honor.
4 THE COURT: Is that correct?
5 THE CLERK: Yes, Your Honor.
6 THE COURT: There's no firearms, there's no contraband
7 of any kind in this case, is that correct?
8 THE CLERK: Correct.
9 MR. LONDON: There is a set of lock picks that was an
10 exhibit, and those -- I don't know if those are considered
11 contraband or not. I don't know if those are admitted or not.
12 THE COURT: Well, if they ask for it, the government
13 will be expected to produce them immediately. Understand?
14 MR. LONDON: Yes, sir.
15 THE COURT: Any questions now?
16 MR. LONDON: No, Your Honor.
17 THE COURT: Both parties will be expected to
18 immediately respond to any jury questions immediately. We do
19 not intend to wait for you. We will send the marshals for any
20 and everybody immediately. Understand?
21 MR. LONDON: Yes, Your Honor.
22 THE COURT: The defendant's in the custody of the
23 marshals.
24 (Defendant is removed from courtroom.)
25 THE COURT: Court's in recess pending the jury
821
1 verdict.
2 (Recessed at 1:26 p.m.)
3 (Defendant present.)
4 (Jury not present; 3:36 p.m.)
5 THE COURT: Be seated.
6 I received two notes from the jury. One, definition of
7 intent. Two, may we have a dictionary and legal definition of
8 intent.
9 Do you want to show it to them, both of them?
10 THE CLERK: Come forward if you want to see it.
11 MR. LEEN: Okay. Thank you.
12 THE COURT: Comment from the government?
13 MR. LONDON: I will confess that I'm not familiar with
14 what the law is regarding a dictionary. I seem to recall from
15 other cases that they are not entitled to have that. The
16 definition in the dictionary might not be a legal definition as
17 a term of law. But I will see what Mr. Leen has to say about
18 that.
19 THE COURT: Mr. Leen.
20 MR. LEEN: I don't believe that the jury is allowed to
21 have a dictionary in the jury room, Your Honor.
22 THE COURT: The answer to that is no. Right?
23 MR. LEEN: I agree.
24 THE COURT: No?
25 MR. LEEN: The answer to the question about a
822
1 dictionary should be no.
2 THE COURT: That's right. No.
3 All right. Now, this as to meaning of intent.
4 MR. LEEN: Your Honor, we asked at jury charging that
5 the jury be charged with the definition of intent for this very
6 reason.
7 THE COURT: For what very reason?
8 MR. LEEN: Because it's a term that's not defined and
9 is relevant to an element of the offense.
10 THE COURT: Well, the answer to this is read the
11 instructions.
12 MR. LEEN: There is no definition of intent in the
13 instructions.
14 MR. LONDON: There is a definition of knowledge in the
15 instructions. It could be they could be referred to the
16 knowledge instruction.
17 MR. LEEN: We would object to that. Intent, Your
18 Honor, is acting with the object and purpose to commit acts
19 which constitute a crime. It's the highest level of knowledge.
20 It's the highest level of mental state in the law.
21 THE COURT: That's your position.
22 What's the government's position?
23 MR. LONDON: I don't believe that it -- that the jury
24 should be instructed that intent means intent to commit a crime,
25 because it specifically is defined in a number of legal
823
1 definitions as simply the intent to do the act that has a
2 particular effect. The defendant does not necessarily need to
3 know that he's breaking the law, as long as he specifically
4 intends to do the thing that he does that results in the law
5 being broken.
6 MR. LEEN: This is a specific intent crime, Your Honor.
7 THE COURT: Do I say reread or read the instructions?
8 MR. LEEN: I would just say no, it will not be defined
9 for you.
10 MR. LONDON: I guess it's read the instructions,
11 because we're not going to give them another definition. Then I
12 guess -- I don't think we have another alternative than to tell
13 them they are not getting a definition.
14 MR. LEEN: It's not in the instructions, so I think
15 that the appropriate one would be to say no.
16 THE COURT: I said read the instructions, and endorsed
17 it.
18 MR. LEEN: We would object to such a response, Your
19 Honor.
20 THE COURT: It's noted.
21 MR. LEEN: Thank you.
22 THE COURT: Anything else?
23 MR. LEEN: No.
24 THE COURT: All right. Court is in recess pending the
25 verdict.
824
1 (Recess.)
2 (Defendant present.)
3 (Jury not present.)
4 THE COURT: Bring the jury.
5 (Jury present; 4:55 p.m.)
6 THE COURT: Let the record reflect all members of the
7 jury are present, defendant's present, counsel, the government
8 is represented.
9 To the jury, who's the foreperson of the jury?
10 (Juror No. 3 raises hand.)
11 THE COURT: Did that note, sir, come from you?
12 JUROR NO. 3: Yes, it did, Your Honor.
13 THE COURT: On behalf of the jury.
14 JUROR NO. 3: Yes, it did.
15 THE COURT: Read the note in open court.
16 JUROR NO. 3: The note says that counts one and four
17 and five are hung; 11 guilty, one not guilty. Counts two and
18 three are unanimous guilty. And we ask, what do we do now?
19 MR. LONDON: I'm sorry, I just actually didn't hear the
20 last part. After "we ask," I didn't hear it.
21 JUROR NO. 3: Counts two and three, unanimous, guilty.
22 And we ask, what do we do now?
23 THE COURT: Give the clerk the note, and then please go
24 back to the jury room.
25 (Jury returns to the jury room.)
825
1 THE COURT: Defendant?
2 MR. LEEN: I'm sorry, are you asking --
3 THE COURT: Any comment?
4 MR. LEEN: Well, I don't --
5 THE COURT: Let the record reflect the jury is not
6 present.
7 MR. LEEN: Yes, Your Honor.
8 I don't think the jury can continue to deliberate because
9 they have announced part of their verdict. And so I would ask
10 the court to discharge the jury.
11 THE COURT: Well, do I accept -- what we're talking
12 about here is form.
13 MR. LEEN: Yes, sir.
14 THE COURT: Of the verdict.
15 MR. LEEN: Well, they published a verdict. I guess
16 they would have to be polled.
17 THE COURT: That's exactly what I want them to do.
18 They haven't been polled yet.
19 MR. LEEN: But I think after they are polled, they
20 should be discharged.
21 THE COURT: Government?
22 MR. LONDON: You know, I will confess, I haven't been
23 quite through this set of circumstances before.
24 THE COURT: And we can't find anything.
25 MR. LONDON: It sounds to me as if it might not be
826
1 fruitful to inquire whether any further deliberation --
2 THE COURT: I do not intend to.
3 MR. LONDON: Then, Your Honor, I believe they could be
4 discharged after being polled, and then the United States
5 attorney can decide whether or not to try Mr. Bell on the counts
6 on which they were hung. It's a matter of prosecutorial
7 discretion.
8 THE COURT: The only question that I have, do I tell
9 them to go back and fill out the form, or do we use this note as
10 the form?
11 MR. LEEN: Well, the problem is that they have
12 published their jury -- their numerical counts, which they are
13 not supposed to do.
14 THE COURT: I understand.
15 MR. LEEN: I think I'm just going to move for a
16 mistrial.
17 THE COURT: That will be denied.
18 MR. LEEN: Then other than that, I guess then you
19 should treat that as -- as a conviction, I guess, on two counts,
20 if that's what it's going to be doomed, but I don't think you
21 can tell them to do anything else. They aren't supposed to
22 disclose their --
23 THE COURT: What I propose to do is poll them on counts
24 two and three, without mentioning anything else. There is some
25 law on partial verdicts.
827
1 Any objections?
2 MR. LEEN: I think that the verdicts are --
3 THE COURT: I have in mind your mistrial motion.
4 MR. LEEN: There's some irregularity here, and I can't
5 voice it because I haven't really thought through the problem.
6 But they can't deliberate anymore and you can't instruct them
7 anymore, and they haven't returned a proper verdict.
8 THE COURT: I'm not asking you that.
9 MR. LEEN: So do I object to what you think about
10 doing?
11 THE COURT: Is there any objection to poling the jury
12 on counts two and three as to the form of the verdict?
13 MR. LEEN: Well, it would make sense. But we would ask
14 that the jury be polled before any conviction be received and
15 filed with the clerk.
16 THE COURT: It has already been published, their
17 verdicts on counts two and three. Right?
18 MR. LEEN: Yes, sir.
19 THE COURT: I'm trying to put it in the proper form.
20 MR. LEEN: Well, I don't think you can at this point.
21 And I don't think that --
22 THE COURT: So you're saying that I should not ask them
23 to fill out the verdict form as to counts two and three on which
24 they have reached a verdict as they published?
25 MR. LEEN: I would say that you shouldn't tell them
828
1 that direction.
2 THE COURT: Should not.
3 MR. LEEN: Objection.
4 THE COURT: Because what they are asking for --
5 MR. LEEN: I will object, for the record.
6 THE COURT: Bring them back.
7 Get ready to poll the jury.
8 THE CLERK: On counts two and three?
9 THE COURT: Hum?
10 THE CLERK: On two and three?
11 THE COURT: On two and three.
12 (Jury present.)
13 THE COURT: Let the record again reflect the jury is
14 present, defendant is present with counsel, and the government
15 is represented.
16 What we are going to do now, the clerk is going to ask you,
17 each individual juror by number, as to counts two and three
18 only.
19 And what is the question going to be?
20 THE CLERK: Members of the jury, I shall pose a
21 question directed to each of you individually and as members of
22 the jury: Is the verdict as read as to counts two and three
23 your verdict and the verdict of the jury?
24 THE COURT: Now, that's going to be the question.
25 Okay? Start with juror number one.
829
1 THE CLERK: Please respond yes or no as I call your
2 number.
3 Number one.
4 JUROR NO. 1: Yes.
5 THE CLERK: Number two.
6 JUROR NO. 1: Yes.
7 JUROR NO. 2: Yes.
8 THE COURT: Number three.
9 JUROR NO. 3: Yes.
10 THE CLERK: Number four.
11 JUROR NO. 4: Yes.
12 THE CLERK: Number five.
13 JUROR NO. 5: Yes.
14 THE CLERK: Number six.
15 JUROR NO. 6: Yes.
16 THE CLERK: Number seven.
17 JUROR NO. 7: Yes.
18 THE CLERK: Number eight.
19 JUROR NO. 8: Yes.
20 THE CLERK: Number nine.
21 JUROR NO. 9: Yes.
22 THE CLERK: Number ten.
23 JUROR NO. 10: Yes.
24 THE CLERK: Number eleven.
25 JUROR NO. 11: Yes.
830
1 THE CLERK: Number twelve.
2 JUROR NO. 12: Yes.
3 THE COURT: All right. The verdict will be accepted.
4 The jury is now excused, but before you leave, let me tell
5 you something. You do not have to talk to anybody. Do you
6 understand what I said? I'm not telling you you can't. All I'm
7 telling you, you have no responsibility, except to yourself, to
8 talk to anybody about your service on this case.
9 You are now free to go home.
10 JUROR NO. 5: Thank you.
11 (Jury is excused.)
12 THE COURT: July 6th, at -- 2001, at 9:30, or as soon
13 thereafter as the court can be heard, will be the sentencing
14 date, and there will be a probation report on this case. As to
15 counts two and three.
16 Anything further to take up, either party?
17 MR. LEEN: Defense would move for dismissal of counts
18 one, four, and five.
19 MR. LONDON: Any dismissal we would appreciate being
20 without prejudice and giving us the ability to refile if we so
21 choose.
22 THE COURT: They're dismissed without prejudice.
23 MR. LEEN: We also move for dismissal of counts two and
24 three for irregular jury verdicts.
25 THE COURT: That will be denied.
831
1 MR. LEEN: Your Honor, may the defense have ten days to
2 file a motion for new trial?
3 THE COURT: Whatever the rule is.
4 MR. LEEN: I understand that I'm allowed to ask you at
5 this point to extend it from seven days to whatever time the
6 court deems reasonable, and I have some other matters to take
7 care of. Ten days would be helpful.
8 MR. LONDON: No objection.
9 THE COURT: You've got it.
10 MR. LEEN: Thanks.
11 THE COURT: Meanwhile, the defendant is in the custody
12 of the United States Marshals.
13 The note from the jurors will be part of the record and it
14 will be filed.
15 MR. LEEN: May the defense have a copy of it, Your
16 Honor?
17 THE COURT: I said it would be filed.
18 MR. LEEN: Yes, sir.
19 THE COURT: Anything else to take up?
20 (Defendant is removed by the marshals.)
21 MR. LONDON: Yes, Your Honor. I just have one thing.
22 I don't think the defendant needs to be present for this.
23 But we did share a courtesy copy of our exhibits with Mr.
24 Leen, and now that the trial is completed, we would like to be
25 able to have those back.
832
1 THE COURT: What's the record -- what's the procedure
2 of the clerk's office?
3 THE CLERK: That would be discovery.
4 MR. LONDON: It's just -- we believe Mr. Leen has
5 those, and we do need to get them back.
6 THE COURT: If I understand -- what's the rule on
7 exhibits?
8 THE CLERK: At the end of the trial I return exhibits
9 to the parties and they maintain them during the appeal period.
10 I don't have anything to do with the government and defense
11 counsel exchanging exhibits.
12 MR. LONDON: I would like clarification of this court's
13 order with regard to the sealing of the file. These exhibits,
14 the courtesy copy given to defense counsel, are not technically
15 a part of the file that has been ordered to be sealed until
16 further notice of the court, but we are concerned that
17 information in those exhibits not be published as a kind of back
18 door exception to this court's order. So we are asking that
19 those be returned at this time. Or at least that Mr. Leen be
20 given instruction that he should not share any of that material
21 with members of the press or otherwise. I say it because I know
22 there have been requests made.
23 THE COURT: Mr. Leen, you are ordered by the court not
24 to reveal to your client or any news media the names, addresses,
25 or any identification of the jurors in this case.
833
1 MR. LEEN: Certainly, Your Honor.
2 THE COURT: Do you understand that?
3 MR. LEEN: I understand that. Thank you.
4 MR. LONDON: But what about the victims, Your Honor? I
5 think you just mentioned jurors, but what's in that notebook is
6 not jurors' names but victims' names and other personal address
7 information of people who really don't need to have that
8 information displayed on the Internet or elsewhere.
9 THE COURT: What you're saying is I'm supposed to
10 anticipate a crime by the -- I don't think I have the authority
11 to do that. Do I?
12 MR. LONDON: Well, I'm not sure, Your Honor. I -- my
13 view of it is this, that --
14 THE COURT: They testified in open court, right?
15 MR. LONDON: Yes.
16 THE COURT: That can be printed, can't it?
17 MR. LONDON: Yes, that can. That's a matter of public
18 record. But as to specific exhibits that are in the possession
19 of the defense, we already have a ruling from you, an order from
20 you, saying that this court file will be sealed until --
21 THE COURT: My order goes to the jurors, period.
22 MR. LONDON: All right. Thank you.
23 THE COURT: The jurors, period.
24 Now, both parties heard what I told the jury. They don't
25 have to talk to anyone. But if they do, I can't do anything
834
1 about that. As far as I know.
2 MR. LEEN: Yes, sir.
3 THE COURT: Understand?
4 Okay. Court's in recess.
5 (Adjourned at 5:10 p.m.)
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9 C E R T I F I C A T E
10
11 I certify that the foregoing is a correct transcript from
12 the record of proceedings in the above-entitled matter.
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16 ________________________________ October 22, 2001
JULAINE V. RYEN Date
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