1.Written-Chat Presentation Ruling and Trial Preparation

THE COURT: We've got a couple of housekeeping matters to raise right now and then we'll take whatever issues you folks may have in addition.

We're going to get the jury, I think, the panel, about 10 o'clock. That is my guess. The reason for the delay is while we've got our own set of folks, there is another very significant case that is picking a jury today as well, and so there is a lot of folks coming in downstairs. And when we do that, the plan is if all 91 or 92 show up, we'll take about 60, who will fit in a this room, or so, and they will come in and we'll then start from there. So we'll have actually a group of some number, if we get full attendance, who will stay in the other room for a period of time.

All right. Now, one thing that I want to make sure you folks all realize is that while a lot of letters come into the Court's email, copied to both sides, unless they are under seal, we've got to make sure, for purposes of the overall record, that everything is on the docket. We've done our best to try to ensure that whatever we've received, if it is under seal, that it has been placed in the sealed vault. If it is ex parte it is also placed in the sealed vault with a notation of that, and if it belongs on the docket because it does not require being under seal, which should be everything possible, then that belongs on the docket.

So I want to have you folks take individual responsibility for ensuring that whatever you have sent to the Court is appropriately captured in that universe. In other words, there should be nothing which you think I have in a file in my office. All right? Because if one day somebody has to reconstruct the file, I want them to be able to reconstruct it in its entirety. So we've done what we can. Going forward, it will be easier but let's just get all ourselves reconciled in that process.

Now, there is one open item from Mr. Dratel's letter of January 9th. I did not receive a response from the government, that I'm aware of, relating to the oral presentation of the Internet evidence. Mr. Turner.

THE COURT: Let's back up a little bit. It is typically the case that wires are in their -- you've got your line transcriptions and they will be highlighted, and the government typically has the agent recite what is on the screen, or whichever witness is -- sometimes it is a cooperating witness who was a party to that, just to literally read out the words on the page. That is a different process from what I understood you folks were proposing here, which was to have two folks basically be the voices, if you will, of the Internet communications. So let's separate out the two because, as I understand it, the thrust of the letter is towards this back and forth between these voices, the two voices, as opposed to the first, more typical way, which is on the screen.

So as to the two voices, are you folks willing to forgo that and let's see if we can narrow this, and then we will get Mr. Dratel's position on doing it the traditional way?

THE COURT: All right. So here is what my ruling is at this point in time, and we can reassess this ruling if and how this plays out there is a need to reassess it and it becomes obvious that things should change. But what I am going to do is to have the government proceed in the manner that it would typically proceed and not do anything different. In other words, we are not going do it with the paralegals. The prosecutor can proceed with either a witness on the stand or the prosecutor with another prosecutor. I will then give a limiting instruction stating that these were originally written. They were in no sense -- there is no indication that they were orally communicated. The jury should understand that. The jury should read them. They are meant to be read. The jury should note the punctuation and emoticons. But there is an interest in the convenience of conveying the information to the jury in a manner in which we can all be clear in court of what's happening at the same time, and it would be novel to have a document where there is a particular piece of evidence pointed out where there is not some specific reference to the text of that through oral communications. Trials are about the typically sensory communication of evidence.

So we'll proceed that way. Let's eliminate the paralegal version of this and just have the government proceed as they would normally have proceeded in some other case, and I'll give the instruction as to how this material should be taken and reviewed. All right?

Now, in terms of the next --

THE COURT: So we'll do it the old-fashioned way, the way it is typically and normally done at trial and nothing specific.

Now, I was supposed to get an updated exhibit list from the government. Do you folks have one, or is there not one? If there is not one, then that is fine.

THE COURT: Terrific. Thank you. I have received an updated witness list.

In terms of the jury selection, let me just tell you folks, give you a short reminder as to how it is going to proceed. The folks will come into the room, and Joe will randomly from his box spin the box. My method is to put the 12 in the panel in the box, and of the first group there will be four alternates. Also put into the first group we'll be working for the initial questions with all 16 but the peremptories will be against the 12 first and then separately against the four as the alternates. All right? So the peremptories are the first peremptories, 10 to the defense, 6 to the government in six rounds simultaneous, and then a separate two-round, one each, as to the alternates. That will be done separately and I will make it clear when that is happening.

The jurors are going to be given a pen along with some biographical questions because we'll eventually -- whoever is seated in the box before the peremptories will have an opportunity -- and, indeed, not opportunity, we're going to ask them to stand up and give us 30 seconds about themselves. What kind of job they have, what their spouse or significant other might do, if they've got children, what they read, what they watch on TV, sort of 30 seconds. On the back of that piece of paper, which is blank, they will be instructed when they first come in to write down any questions to which they have a "yes" answer, and so if I put somebody from the audience into the box we will be asking them did you have any "yes" answers and picking up from there.

Again, it's use it or lose it. You can't accumulate your peremptory strikes. If you waive for a round, which happens frequently for various tactical reasons that you folks may have, it's use it or lose it.

All right. Now, what is the order of witnesses for today, if we have? Who is your first witness?

THE COURT: All right. What I am going to do is assess evidence as it comes in and will then I think determine how much of the evidence appears, potentially, to be highly technical, and it may be that things are explained in such a way that it doesn't get there and/or that even highly technical concepts are explained in a way that are understandable. But if I believe that things are not understandable to the jury, that things are going too quickly and words are being thrown around that can't be understood by the average juror, we'll talk about what might be a reasonable way to proceed at that time.

Now, I have -- I think we have one other issue that we wanted to raise at this time that I think it makes sense to raise in the robing room, if the defendant will consent to waive his presence. If he won't, then we can do it at the sidebar. Your choice.