10.Acquittal Motion Denied; Defense Testimony, Charge and Closing Plans

THE COURT: The standard for a motion under Rule 29 is whether the judge thinks that there is sufficient evidence to sustain a conviction and if the evidence meets that threshold, then the case is to go to the jury. I find that the case should go to the jury. I think that there is evidence to sustain a conviction on each of the counts. Whether the jury will decide to do so or not is ultimately up to the jury as fact finders in this matter.

In terms of the venue issues, I have looked extensively at the venue issues in connection with the jury instructions. And the results of my determinations are set forth in the jury instructions that were sent around yesterday in the sense of including an instruction relating to websites. Venue, of course, is a preponderance of the evidence standard. And for certain counts, of course, there's even different and much more direct evidence in terms of venue, but certainly there's enough for a finding of venue here. So the motion is denied. The case will go to the jury at the appropriate time.

Let's talk about what's going to happen next to get us to the point where we're going to be having charging and closings. So there are two witnesses, Ms. Lewis, who you expect to be able to land tonight with the weather conditions?

THE COURT: Let's put it this way: I assume everybody knows that the testimony can't be simply a factual narrative of the case or somebody getting up and summarizing what has occurred and then drawing an inference from that, right, that would usurp the province of the jury.

But if it's not that and it happens to be a timeline of different dates and she's done an investigation and is able to testify firsthand as to certain things and those dates are useful, then that would be a different use.

THE COURT: Let's take it as it comes, then. I don't want to have a situation tomorrow though -- here is the tension: I don't want to have a situation tomorrow where we run into 8 million side bars and objectionable things and all of that.

The witnesses -- we'll be clear. The witness can't speculate. She can however talk about things that she knows from firsthand knowledge. She's being offered as a percipient witness. And if there is something, a timeline-type document which aids that percipient testimony, she can use it, but she can't summarize in some sort of summation sense.

But if you folks think you should give me a heads-up on something --

THE COURT: Now, on this witness, it sounds like this is the kind of thing where I ought to receive a copy of whatever the exhibits are, Mr. Dratel, that you end up giving to the government so that I can look at them in advance and be prepared for any additional positions that the parties may take in this regard.

I mean, right now, I don't want to necessarily, since she's being offered as a fact witness, delve too deeply into all of her testimony, but I do want to make sure that she's not going to be sort of just a narrative.

THE COURT: What you folks can do for this, you can put a few words in and not all of the citations, which she might find helpful, I don't know, in terms of tying herself down to a particular time frame, but if she thinks it's important that at a particular time in February of 2013 he had a communication with Bates, a communication with Bates could be the relevant event.

I don't know where this testimony is going, Mr. Turner, but I'm hesitant to do anything until I find out more about it.

THE COURT: Let's just say what she cannot do, okay. We'll be clear so that you folks understand and I am not trying to be exclusive or exhaustive as to what she cannot do because I don't know what she's going to do, so I can't focus this but you can never in a jury trial have a witness who gets on the stand and says I've reviewed all of the documents in the case, I've spent hours on -- or whatever, 20 minutes, whatever the length of time is -- on the evidence. Here is my findings. My findings are the following: I've done an analysis and my findings demonstrate that as of these four days, you know, X couldn't possibly be the case because that's precisely what the jury would do, which is take the evidence and draw inferences from the evidence.

So she can't be providing a factual narrative. She needs to have -- let's put it differently. She needs to have done something or have -- she needs to either come to the table with unique evidence that's firsthand like, you know, I, in 2013, ran into Mr. Ulbricht outside of his house and he introduced himself to me as Ross, all right, which wouldn't be in for the truth, it would be in for the fact that it was said. That kind of firsthand knowledge is true, percipient knowledge, you know, what she saw or heard, touched as a percipient witness, not what she read and synthesizes as a convenient narrator of facts, right. This comes up a lot when people want to put on a witness who then sort of gives an overview of their version of the story which you can't use one overview witness for.

THE COURT: This may not be everything she's going to say.

Is she going to have firsthand knowledge?

THE COURT: Let's forget the document and more generally the issue is, does this witness have firsthand knowledge about which she is competent under the rules to testify?

If the answer is yes and it's probative of an issue, a material issue in dispute, she can testify. The exhibits she uses may have evidentiary issues, but she can testify to her percipient knowledge.

THE COURT: I'll get a proffer from you folks tomorrow morning. I'm not going to make you do it tonight. She's a fact witness, not an expert witness. So the disclosure requirements are entirely different. So the fact that she doesn't have 3500 material is not particularly remarkable for many fact witnesses who are talked to extensively by law enforcement necessarily.

Mr. Dratel and Ms. Lewis, you folks as trial lawyers know what to do. As you know, I will hold you to the rules of evidence so don't put us all in an awkward position where you're trying to put somebody on who is going to be a narrative speaker, okay?

THE COURT: So, I am going to assume that Ms. Prince has done some sort of investigation after the fact, sort of a relatively contemporaneous investigation where she has gone out and she has either looked at things and/or put things together and wants to come in and testify either as to what she has looked at or as to what she has put together.

Now, you folks will give me whatever I need in the sense of evaluating that kind of witness, generally, in terms of substance and type, okay?

Now, Mr. Ulbricht, is he going to -- has he made a decision as to whether he is going to testify?

THE COURT: All right.

Now, if you change your mind between now and the end of the case, let Mr. Dratel know and he can make an appropriate application at that time. All right? I do understand that I am asking you now before these other witnesses have testified and if Ms. Prince's testimony gets constrained in some way that you are not expecting then you should let Mr. Dratel know and renew the application, make an application to be able to testify, and I am very unlikely to preclude you, right? What I want to know is I want to know for purposes of figuring out how the trial is going to proceed. But, if you end up with a burning desire to testify or just any desire to testify, you will be allowed to do so. All right?

THE COURT: I had one more thing on the jury instructions.

On page 47, if you folks have it, if you don't -- this is not extensive, I think you can probably just hear it. The word "adage, actions speak louder than words is applicable here," I think "adage" is not as well known as it used to be and I would use the word "phrase" in place of the word "adage."

Any opposition?

THE COURT: Then, in the concluding remarks on page 91 where we are talking about what is being sent and not sent back into the jury room, I think it is useful to strike, "and any narcotics seized" because we haven't presented or handed around, I don't think narcotics seized and put, "for instance, the actual computer hard drives," which we are not intending on sending back, as an example.

Any objection?

THE COURT: The other one, which based upon my more recent review of all these CCE cases -- and I think I may have read every CCE case in this circuit at any level, and others -- is to change the last sentence at page 62 relating to continuing series of violations to the following:

However, you must unanimously agree on which, if any, three or more violations committed by the defendant constitute a continuing series of narcotics violations in order to find the defendant guilty on Count Four. They have to agree to unanimously not only that there were three but, as between themselves, they must agree unanimously on which three.

THE COURT: Those changes will be made and you will be given a copy that will say "as delivered" which is my intent to deliver it in that form.

In terms of the use of time tomorrow, we are now at the point where let me ask you, Mr. Dratel, how long do you expect these witnesses to go? Or Ms. Lewis?

THE COURT: So, we will plan on closing tomorrow afternoon. I would ask that if you folks have any demonstratives that you even have any view -- I couldn't figure out how to put the word sniff in there -- if you have any view at all that there is any kind of issue as between you folks on any demonstratives, please try to talk about it in advance and raise it with me so we don't have any objections during the closings, if at all possible. I would really like to avoid that.

If you perceive, as you think about your closing and what the other side is likely to do tonight, issues that might come up where you know you are going to be upset because they've been issues in the trial and believe would be inappropriate, we should flag those before people start so we know what the rules are so that people can try to avoid objections, if possible.

Obviously you have to put an objection if you are going to preserve something so they may well occur. I am not suggesting you shouldn't, you have to preserve your record. You understand.

THE COURT: If it finishes earlier why don't we decide we will take until 2:00. Frankly, we have been starting every day at 10:00, so say we go to 11:00, 11:30, take the hour and 45 minutes rather than having somebody start and hang over lunch. We will just do them in a row.

Now, I say that but I'm not anticipating that the total closings are going to be more than three hours with a break. Give me a sense. Because if they are, then we would start before lunch.

THE COURT: We might be able to do that.

Why don't we do this: Why don't we see where we are tomorrow. You folks will know much better this evening having prepared yourselves how you are going to go, and we will pick something that is going to work. Okay?

THE COURT: One other thing.

You folks had the stipulation?

THE COURT: Thank you.

And then I just wanted to say, I am taking my last post-it off of my phone that there have been several rulings that were subject to connection where the connection has been made. We talked about one earlier that was related to the server but there were a couple of others that, as they went through the connections were made so all the subject-to-connection rulings are now complete.

We will pick up tomorrow morning at 9:00. Thank you.

Send me, please, whatever we need on this Ms. Prince issue.