2.Defense Exhibit E Excluded: Hearsay and Alternative-Perpetrator Evidence
56 linesTHE COURT: Mr. Dratel, do you want to respond to the government's letter on Defense Exhibit E?
MR. DRATEL: The letter is filed under seal, your Honor.
THE COURT: The issue I think can be described as follows. It's I think number one, whether or not the purpose of the document is for the truth and if it's not for the truth, then what other purpose does it serve?
And then there's certainly an issue which we can talk about in open court, in fact, I think we can talk about all of it in open court, except for the one issue that has been under seal throughout the entire case, but everything I think can be referred to other than that. The second point, if it's not offered for the truth, goes to the issue of the Wade, what I'll call the Wade issue about other perpetrator evidence.
MR. DRATEL: It doesn't go for the truth in the sense of the information in it; it goes for the truth the fact that it was communicated to DPR, which is indisputable in that this particular piece of evidence communicates to DPR the name and profile of the person deathfromabove believes is DPR, and that's what he says the information is.
Now, I don't know if I can go further or not go further in open court, but the fact is, the government has created a situation and now they want to profit from it by precluding evidence and also saying that the other parts we redacted, we redacted because they won't let us use it. They redacted. They took that part out of the case, so I don't understand how they can possibly have it both ways.
THE COURT: Let's forget about the redactions for a moment. Let's just focus on if the information between these two declarants is offered for the truth, in other words, if you want to offer it for the truth that Anand is the perpetrator --
MR. DRATEL: It's not offered for the truth. It's offered for the fact that DPR was getting information about people who were supposed to be DPR and that these things were coming in. There's a whole law enforcement file that's part and parcel of the whole thing. And one of these people is one of the people who the agent was investigating.
I think it's a fair inference. I think it's a completely fair inference for anyone to draw.
THE COURT: The first part that I want to take is just sort of the hearsay part whether it's for the truth or not for the truth. So if it's not for the truth, in other words, if the defense doesn't intend to say Anand did it, the real DPR was Anand -- if the defense is intending to say the real DPR was Anand, then this is obviously for the truth.
MR. DRATEL: No.
THE COURT: Tell me whether or not you're planning on making --
MR. DRATEL: It's not that; it's that if you're DPR and you get a name, a specific name, this Anand Athavale and a profile and details, if it's Anand Athavale, if it is, and you're put on notice that it's you, you're going to take steps, so that's not saying that it's him.
THE COURT: That's used for the truth.
MR. DRATEL: No, it's not for the truth; it's the fact that he was informed, it's the fact that DPR was informed. That's indisputable. It's not for the truth of whether it is or not. It's for an inference for the point is that if DPR is informed that it's him, then he's going to take action. And that's not for the truth of the matter of whether it is or not; it's for the purpose of drawing an inference that anyone who -- and also the fact that if DPR is getting information from law enforcement about specific people, he knows the walls are closing in, he's going to take action to implement an escape plan. That is just a fair inference from all of that.
THE COURT: So the theory would be that Anand Athavale understands by virtue of his exchange that investigative sites are trained on him and he takes evasive actions in response thereto.
MR. DRATEL: If it's him. And I'm not going to say it's him. I'm going to say anyone in that situation and even DPR even, if it's not Anand Athavale, DPR is very interested and clued in as to what is going on in the law enforcement community and he is actively security-conscious in a very substantial way and that's an inference that we're -- it's not even an inference. It's a fact from this.
THE COURT: So what evidentiary basis is there that there was another DPR? And what evidentiary basis is there that the defendant ever handed off Silk Road and then took back Silk Road as a setup that would then demonstrate the existence, by inference at least, of an additional perpetrator?
MR. DRATEL: Well, the evidence that he gave it up is that Richard Bates testified to that. The government's own witness testified to that.
THE COURT: That he told that he had given it up?
MR. DRATEL: Yeah.
THE COURT: What is the evidentiary basis that there was a handoff to anyone else?
MR. DRATEL: Well, that's a series of pieces of evidence.
THE COURT: Such as?
MR. DRATEL: I don't want to sum up before they sum up.
THE COURT: Under the Wade case and other case law for the Court, as you know, the Court must undertake an analysis as to whether or not other perpetrator evidence is going to result in inviting jury speculation and there must be a substantial connection between some other potential perpetrator and the facts before the Court. You can't just throw up names and other possibilities. The courts have long said that that's an inappropriate way to proceed. There's just lots of case law on this point.
We're waiting for two more jurors.
MR. DRATEL: The government -- on Thursday, Agent Shaw showed that there is a second administrative key, the SSH key, that gives someone completely separate from even frosty, assuming that that's Mr. Ulbricht, access to the server. I believe that the Government Exhibit 130 and the thumb drive also are --
THE COURT: The thumb drive found on his night table?
MR. DRATEL: Right.
THE COURT: Why would that possibly result in anything other than incriminating him?
MR. DRATEL: Because why would it be on the thumb drive if it's on a laptop? It's on a thumb drive because that's what was given to him, and that's an inference that the jury is entitled to draw.
THE COURT: That sounds like the difference between an inference and speculation. Let me gather what you believe the evidentiary basis is for another perpetrator. It's Bates that he was told that Ulbricht had given up Silk Road, and it was the second administration key, which is not tied to somebody who was calling themselves -- well --
MR. DRATEL: There were changes in the site throughout that would indicate that there was a change. You have the origin of DPR in general, the changes in October of 2011, the changes in June of 2011, the changes in January 2012.
THE COURT: You need to come up with something that is a handoff to another person by inference; otherwise --
MR. DRATEL: But Bates said he sold the site and that it was no longer his problem as of 2013. The standard is not that I have to prove it's someone else. The standard --
THE COURT: The standard is you have to show a substantial connection that there is another perpetrator.
MR. DRATEL: No. I think I have to show a substantial connection to this case, not to another perpetrator specifically. That's a burden on the defense that doesn't exist.
THE COURT: It's a substantial connection that that other person is, in fact, the true perpetrator of the crimes charged here.
MR. DRATEL: Well, that's what I was trying to get to in my cross-examination of Agent Der-Yeghiayan. I would have gotten to it also with other witnesses, but I was precluded from cross-examining them on this.
THE COURT: For instance, is there evidence --
MR. DRATEL: The Jones handshake in September 2013, August or September of 2013, the handshake evidence is critical in this. It's not in yet, but it's critical. You talk about handoff at the end, that's an inference that we're entitled to have.
THE COURT: Let me hear from the government.
MR. HOWARD: I believe the Wade case requires more of a substantial connection between the actual alternative perpetrator that they're trying to depict, not just someone else generally. Here the issue is that to the limited extent -- to the extent this has any probative value, it is if exactly as if Mr. Athavale is the alternative perpetrator. There is no evidence which substantially connects him to a theory that he's an alternative perpetrator in this case for the reason we set forth in the letter.
THE COURT: Defense Exhibit E is precluded on the basis that it's hearsay. It is offered for the truth that Anand is the DPR or that Anand is one of potential other DPRs, which makes it for the truth, and I can't find any reason that it would be offered other than for the truth.
The Harwood case, 998 F.2d 91 deals with a situation where information which comes in that's irrelevant, unless it's for the truth, is applicable as well as other cases. Let me give you another one. There are legions of cases that are supportive of keeping things out which are coming in for the truth. And based upon everything I have heard, the use of this would be for the truth. Therefore, it makes the statements as between two out-of-court declarants, and you can't just have two out-of-court declarants, offered for the truth.
Also even if it wasn't offered for truth, you then get into the secondary analysis of the Wade standard. The Wade standard relies upon the McVeigh standard, and it says "In the course of weighing probative value and adverse dangers, courts must be sensitive to the special problems presented by alternative perpetrator evidence. Although there is no doubt that the defendant has a right to attempt to establish his innocence by showing that someone else did the crime, a defendant still must show that his proffer evidence on the alleged alternative perpetrator is sufficient on its own or in combination with other evidence in the record to show a nexus between the crime charged and the asserted alternative perpetrator. It is not sufficient for a defendant merely to offer up unsupported speculation that another person may have done the crime. Such speculative blaming intensifies the grave risk of jury confusion and invites the jury to render its findings based on emotion or prejudice." That's cited in the Wade case, Second Circuit, binding on this Court, 333 F.3d 51, pin cite at 61. So that issue is resolved.
How are we doing with the jurors? Still waiting on two.
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MR. DRATEL: And, your Honor, just since the entire government's case is two declarants not in court, I would move that the jury be instructed that nothing that came in in any piece of evidence that the government put in except for perhaps Bates' testimony, which is the only first-hand testimony in the entire case, is not for the truth.
THE COURT: Now, Mr. Dratel you understand, and the Court spent a great deal of time on this both in pretrial -- and in the initial evidentiary rulings -- that there is an exception to the hearsay rules for co-conspirator testimony. Co-conspirator testimony can come in a variety of forms including web shots and other things. I went through that extensively, did make the factual findings necessary to support by a preponderance of the evidence the existence of the necessary elements for a co-conspirator exception. There were also a couple of other exceptions which applied here and there, we have dealt with them all to the extent that they were unique. So, those situations were independent and different.
All right. Let's take a break until we get the jury assembled. We are close. We are close and so I would hope that they would be out shortly.
Let's get Mr. Shaw back so he is not delayed in getting on the stand.
(Recess)
THE COURT: We are waiting for one juror, juror no. 3. He has communicated with Joe, by text, indicating that he is just getting on the no. 5 train, wherever that is occurring; he said it will be about an hour. That was about seven minutes ago -- five, seven minutes ago, and so I don't know, maybe it will take less than that but I can't imagine that we are going to be starting before 11:00. In light of the fact that he is on his way and has shown up each day, I don't think we should take any other action at this time. So, I wanted to give you folks an update.
Anyone disagree and think we should proceed without this juror?
MR. TURNER: No, your Honor.
MR. DRATEL: No, your Honor.
THE COURT: So, we will give you folks an update, but plan an being back somewhere in the vicinity of 11:00, 11:05 and we will start then.
Thank you.
(Recess)
THE COURT: Let's bring out the jury.
(Continued on next page)
(Jury present)
THE COURT: All right, ladies and gentlemen. Let's all be seated.
Mr. Howard, you may continue, sir.
And Mr. Shaw, you are under oath from last week.
BRIAN SHAW: Okay.
BRIAN SHAW, resumed.