4.Drug-Weight Estimates Excluded: Exhibits 940H and 940I
115 linesMR. HOWARD: The government offers 940I.
MR. DRATEL: I object based on 100 transactions. There's no statistical value to it.
THE COURT: Let me ask a few questions so that I understand what you did.
You took 100 transactions randomly; is that right?
BRIAN SHAW: 100 items randomly that were used in transactions; yes.
THE COURT: 100 items?
BRIAN SHAW: 100 transactions.
THE COURT: Which included a heroin sale?
BRIAN SHAW: Correct.
THE COURT: Based upon those 100, you determined manually what the highest transaction price was for any one of those 100; is that right?
BRIAN SHAW: I determined --
THE COURT: You took the hundred.
BRIAN SHAW: I took the hundred.
THE COURT: And if the highest price was $739 and change, that's the price you used for the heroin analysis, is that right?
BRIAN SHAW: Correct.
THE COURT: And then what you did was, you took the total sales revenue and you did some math to come up with the possibility of what the number of -- the volume of drugs, is that right?
BRIAN SHAW: Correct.
THE COURT: All right. It's not received. We're going to -- we'll have to talk about it again. It's not received based upon this analysis.
Is there anything else that government wanted to do?
MR. HOWARD: No, your Honor.
THE COURT: Why don't we do this. If you want, I don't want to have the jury have to sit around for this, we can talk about this further. I don't want to talk about the evidentiary issue in front of the jury, but I can explain my basis a little more fully, but I think we need to excuse the jury for that, all right. Unless you folks are ready to move on in light of the rulings but I assume based on the side bar you'd like to take this up?
MR. HOWARD: Yes.
THE COURT: Ladies and gentlemen of the jury, I'm sorry for the quick break, but we're right at the end of this witness, so I need to resolve this before we go on.
Let's take this break a little early. We'll see how things go. Hopefully it will be about ten to 15 minutes. I appreciate your patience with us.
Thank you. Don't talk to each other about this case.
(Continued on next page)
(In open court; jury not present)
THE COURT: I'm going to ask you, Mr. Shaw, to step down, but stay close because we may have some additional questions for you, all right?
BRIAN SHAW: Yes.
(Witness temporarily excused)
THE COURT: I've asked Mr. Shaw to take a break but to stay close in case we have any additional questions for him on what underlies his analysis. Let's all be seated.
And let me describe a little bit more fully the Court's view, all right, since I can do that better when we're not at side bar.
We all I think understand the importance of this document. There are two ways in which such a document can be used: One is for the jury to answer each of the three questions in connection or four questions in connection with their determination if they reach past the first question on Counts One, Two and Three. The second is if there was a conviction, it would be highly relevant to sentencing.
The issues for sentencing are different, the Court has a different standard. It's preponderance of the evidence. We're not anywhere near there, so I'm going to put those to the side for the moment and deal with the evidentiary value and importance of these in terms of the elements of the causes of action that are in Counts One, Two and Three.
The concern that I have is with, let's just take 940I, which was the more-recently offered document, for that we don't in fact know whether 739 was the highest possible weight. His analysis assumes that he took -- or the value -- that he took the highest possible value. Now, it would have been relatively easy for him to have done a sort and to have come up with on a database in fact what the highest possible value was.
Is that not true?
MR. TURNER: No, your Honor. That's not true. The system recorded the price.
THE COURT: Right.
MR. TURNER: But the weight would just be an attached description --
THE COURT: Not the weight. I'm talking about, as I understand it, the weight is derived by this witness from the overall denominator and the numerator is the price obtained from the random 100 transactions, which in Exhibit I happens to be the highest dollar value attributed in those 100.
MR. HOWARD: Let me address that. You couldn't do just a standard sort because the database does not capture for each item what the price is per weight. There's a price value and then --
THE COURT: Let's forget about that. What I'm trying to figure out is, if you wanted to come up with an analysis like the one you've done, and I'm not saying it's not possible to have them done, you need the figure out before you say that out of 100 random, okay, first of all, to do 100 random, you know somebody who knows about statistics, and who knows how to derive what random is and whether random was within the relevant time frame, what random means. And there are a variety of ways in which random is understood in the world of statistics, so that's number one. So picking 100 random is an issue.
The second piece is, it is nonetheless possible to come up with the highest transaction price for heroin, but you've got to do that -- to extrapolate that to the entire array of transactions, whatever thousands of heroin transactions there are, if you were going to do it with a statistician, you'd need to do it through some form of figuring out if that number is right. In other words, 739 could in fact be the highest price or it might not be. And if it's not, then it would be, I suppose, understating would be the argument, it would be understating the number of kilos, right? Because you'd have fewer kilos reflected in a higher price. If you had a thousand dollars per kilo, your number per kilo would go down to, say, ten kilos. If you had $1,200, it would go down again. So the problem I have is the statistical piece, which I don't think this witness is competent to do.
There is a manual version of this which could be done but hasn't been done. So that's the issue I have, because I have no idea if he's got the right number or not frankly and it's an extraordinarily important derivation that he's doing here.
MR. HOWARD: One point is, first of all, I think he did testify that he used the database functions to derive the random selections, the random selection of heroin transaction. So he wasn't --
THE COURT: But not in a statistical way. What he did was sort of like randomize, right? I have no idea if the algorithm that he used to randomize spit out random.
For this kind of situation, what you would want in order to get a good price point is you would need to control for geography, time frame, because you might sell it at one price in India and a different price in Timbuktu and a different price on the streets of New York. And you folks have put in now maps showing that kind of global footprint.
So I don't have any idea whether or not in his random sampling he got a truly random sampling for all geographies. In other words, you could take 2013, pick each geography, average those prices together, come up with one random sample per geography, go to another time frame, take all the relevant geographies on a date certain, average them, but that's not what was done.
MR. HOWARD: I think one of the issues here is with the difficulty of what the data is and the data for each transaction as I mentioned doesn't calculate a price per weight in and of itself. It required manual review of the hundred that were selected to make that calculation for each one individually.
Also, in terms of the geography, as Mr. Shaw testified, that only appeared in the database where a user elects to provide that information, and there's no verification of that. So, our ability to do that analysis based on geography is limited by -- it would be highly inaccurate because it would involve a much smaller sample size and also involve users that may or may not be telling the truth about where they're from.
THE COURT: The deficiency in the data does not allow us then to assume that the data we do have is the right data; it just means that perhaps the exercise can't be done.
Now, it may be that the government, and I don't know, has in evidence the whole list of transactions because that's part of what this fellow has authenticated, and you can go through and for those where you've got actual weights, since it's in evidence, you can manually add up enough to get you where you want to go. That's different. But I don't think this document can come in on this basis.
Let me ask Mr. Dratel if you have any other view or do you want to add anything?
MR. DRATEL: No. I think the deficiencies in the database don't allow us to manipulate data in a way that is not statistically valid and there's no statistical accuracy in this whatsoever. It's really not a statistic at all. The other thing is, to the extent that the government now says self-ID is not verified, that would be exactly my point to the objection to the maps because you can't have it for one thing to be used in evidence and then try to undermine it for purposes of getting in this other chart.
THE COURT: I think that the point, as I understood it, was that there's not self-ID for everybody, but where there was self-ID, that that's what's reflected on the map.
Am I wrong about that, or is the map somehow itself deficient?
MR. HOWARD: No. And I believe the witness of the witness is he testified about what it actually was. These are the users who have self-reported. That's what that map captured.
MR. DRATEL: What I'm saying is the government also said there's no verification, which is the point with respect to those maps. It's just someone's self-ID. It really has no value as true.
THE COURT: On the basis that you folks have proffered, this is not the witness to get this document in.
MR. TURNER: Your Honor, we have the testimony in the record and we would just ask for an opportunity to brief this tonight and ask your Honor to reserve judgment. Our opinion is this goes to weight, not admissibility. This is an extremely conservative estimate. You have a random sample of 100 heroin transactions. He's taken the absolute highest price.
THE COURT: He's taken the highest price of the 100.
MR. TURNER: Right. What he did is, he went --
THE COURT: What if he's wrong? What if the highest price is $1,200?
MR. TURNER: So what he did is, he took these 100 heroin transactions and then he looked at -- each one has the weight of the product being sold and he looked at the price per weight. So what he did was for those 100, he said here is the highest possible price per weight that's being charged for these heroin transactions.
THE COURT: What he could have done is he could have done a chart that had only those 100 on it. And it could have been those 100 had the total price per transactions of X and here is the weight attributable to it. Maybe it would have been 700 grams. I have no idea. But that's one exercise. But that's a different exercise.
What happens, though, mathematically if it is $1,200 as opposed to 700? Am I right that it would mean that the number of kilos decreases?
MR. TURNER: I'm just not sure what your Honor means, if you're right. If you're talking about a sample of a hundred --
THE COURT: Let's take a sample of 101. The one that gets added in, let's assume is from Timbuktu where they're able to sell heroin at $1,200 --
MR. TURNER: On that point, there's no geography in terms of --
THE COURT: I understand.
MR. TURNER: In Silk Road, there's one price for everybody. It's not like you buy from Timbuktu -- and you get one price.
THE COURT: I have no idea. There were some things which said ships out of X, so it may ship out of, for all I know, ship out of wherever.
Let's put it this way: What if somebody who is desperate for money sells it at $1,200 for their price point. Am I correct that using this methodology, had that been used, that would decrease the number of kilos?
MR. TURNER: Yes, but this is why we were arguing it goes to weight. For example, if somebody offers it for 1200 --
THE COURT: It can't go to weight if you're offering it for the fact that there were 12 kilos. That's not weight. That is a mathematical factual calculation.
MR. TURNER: It goes to weight in that the jury has received an explanation as to what this is. What it is is the witness took a sample size of 100 and they saw that this is the highest price in that sample and that this is an extrapolation in that sample.
If the defense wants to say, well, there could be a larger sample you could have taken that could have yielded a different result, that goes to weight. It still makes it more relevant -- it still makes a fact more probable than it otherwise would be. It clears the 401 bar.
THE COURT: It's not a relevance issue. It's a foundation issue.
MR. TURNER: In terms of foundation, the witness has fully explained how he arrived at this figure.
THE COURT: Let's do this: I really feel like this is one where there's not enough, but you can always put in something else. Right now, my ruling is going to be what my ruling is. And if people want to put in letters that sort of go into it again, so be it.
MR. DRATEL: I'm going to be preparing for summation tonight. The Court has ruled this is clear, this is not statistics what they're putting in. It's not statistics. It is cherry picking. That's all it is. It has no value to $8 million worth of transactions. The Court knows. The Court is agreeing, so let's just move on with it. We can't keep these things open all the time.
THE COURT: I hear you. The evidentiary record, if it's open, it will be open. I take letters on a variety of topics, but I'm not going to preclude -- I'm not going to change my ruling right now, so if the government gets this in, they're going to have to call the witness back because Mr. Dratel would then be able to cross-examine him on the content of a document that I'm not allowing in right now, so there would be that. So that's how we're going to proceed on this.
MR. TURNER: If I can make one more attempt. The one point is if you take the highest price in this sample, you get a weight estimate that is way, way beyond what's required for the (b)(1)(A) weights, which makes it even -- again --
THE COURT: Presumably the government has in evidence all this data underlying this.
MR. TURNER: No, your Honor. The actual underlying data is the categories and then the amounts of money that came in associated with this category. So you're going to have black tar heroin, brown heroin and then a money figure. The only way you get to the weight is by going line by line through the data, which you're going to have millions and millions of screens for that. That's why you have to have a sample of some sort.
THE COURT: I agree, but it seems like the kind of thing that you should have had a statistical expert do, not this fellow who is like a computer guy. I hear what you're saying, which is, you were facing a difficulty in proof, but you have to understand, this is such an important point that unless all of the I's are dotted and T's are crossed, I am very hesitant to let this in.
MR. TURNER: I understand. We would like an opportunity to brief the issue.
THE COURT: If the evidentiary record is still open, I'll look at any issues, but as I said, the government would have to be prepared to bring this fellow back because right now, he's not going to be allowed to be cross-examined on this document.
MR. TURNER: Thank you.
MR. DRATEL: I object to letting them bring him back. I think it should be closed. This is done. We're putting on our case.
THE COURT: No. I ruled right now. It would have to be a change of ruling, which has happened in the past. All right.
Is there anything else?
MR. DRATEL: The 403 aspect of it is also very important.
THE COURT: The 403 aspect of it I think actually goes the other way. The 403 aspect of it I believe that it's not -- in terms of its probative value?
MR. DRATEL: No. It's confusing. There's nothing statistical about it.
THE COURT: If you want to go to that, confusing, that's a weight issue. Then Mr. Turner is -- once we're into 403 --
MR. DRATEL: It's confusing. I mean, I'm just adding to what has already been determined about its admissibility but I'm just saying also it's not statistics. It's made up.
THE COURT: I think we're now preaching to the converted. The government will brief if it wants to. Let's take as short a break as we can reasonably make it and then we'll come back.
COURT CLERK: All rise.
(Recess)
(Continued on next page)
(Witness not present)
THE COURT: So, I was looking at a few cases, I have only looked at a couple, and then I spoke to three colleagues -- Judges here -- and I believe that the proper way to proceed, looking at the cases, is as follows. This is now on 940D and I, which is the following:
In order for there to be a foundation laid the program would have to be talked about that was used o create the random sample, that all the heroin transactions and the other transactions need to be in so the jury could replicate, if they wanted to, manually, the exercise. And so, since the underlying data is in, the pages will have to be printed out for that to occur or something else. And then the documents can come in subject to cross-examination and I need to look at things much more closely overnight and it is possible that this could be struck. And so, we would go into it with our eyes open.
I believe that striking it is a relatively discrete piece and it would relate to these documents themselves, but that that would be the way to proceed and that seems to be the unanimous view of others and the Second Circuit in terms of methodology and it going to reliability of analyses.
MR. TURNER: Your Honor, I'm sorry. What would need to be struck?
THE COURT: Because I have to look at this more closely.
MR. TURNER: If we were to offer the testimony now?
THE COURT: You are going to offer it now.
MR. TURNER: I see.
THE COURT: Mr. Dratel is going to cross-examine it now and then I may strike it after we do further examination on this.
MR. HOWARD: I have one question. When you are referring to underlying data do you mean all the data for the transaction tables overall or transactions that occurred?
THE COURT: Whichever ones you have in here for heroin, cocaine, methamphetamine and LSD.
MR. HOWARD: We do have spreadsheets that are quite voluminous so we would offer it under 1006 as a summary exhibit. That has been produced, the underlying data to defense in discovery.
THE COURT: I think you have to produce the underlying data so that the jury can redo the exercise itself, if it wants to.
MR. HOWARD: If you give us a minute we can burn the spreadsheets to a disk that can be authenticated by the witness but I would just need to do it with the witness.
THE COURT: Look. I know you folks have not had the time that I have had to look at this. This is the kind of thing that I really wished I had been able to look at before being confronted with it just now but perhaps you folks thought it was really straightforward. I don't think it is really straightforward given the testimony of this witness on this issue.
Mr. Dratel?
MR. DRATEL: A couple things.
One is that I don't think they should be given any time to do anything. I think we should move forward and they've had plenty of time to get this stuff together. This is transparent in the sense that this is not a valid statistical analysis. It is not statistics, period.
But, the other thing is that I don't think it works -- it is something that the government claims is so important and the Court agrees is very important that the jury should hear it and then it be struck. That's too late. The damage is already done at this stage of the trial on an issue of considerable importance so I don't think that that is the proper way to go about it.
The other thing is, and I understand the value of consulting and all of that, but, I mean, the Court ruled. It is not the Court of Appeals that goes to other judges to go overrule. The Court heard the testimony.
THE COURT: It is important that I get it.
MR. DRATEL: The Court is here.
THE COURT: Look. I have consulted on all kinds of issues where people have disagreed with me and I go with what I believe is appropriate, but I do think sometimes when one is pressed for time in dealing with these kinds of issues that it is useful and, indeed, a lot of us call each other. People call me a lot including more senior judges. We utilize the experience and expertise of each other which is, I believe, a useful thing to do. Nevertheless, it is the Second Circuit talking about reliability and talking about methodology as within the ambit of cross-examination, not within the ambit, necessarily, of a foundation. I was characterizing it as a foundational issue. They characterize it as a reliability issue which goes to cross-examination.
MR. DRATEL: But the chart is wrong. The chart is wrong. You can't have $8 million worth of heroin transactions and say it is based on 100. The chart is not accurate. The chart cannot come in as a statement of that. It is not -- it is just not -- it is not it. I can put two numbers together that have no bearing on each other and say you can cross-examine on that. The fact is the chart is not a valid chart.
MR. TURNER: Your Honor, I just want to make sure that I am clear on what your Honor is imagining. Are you proposing that the government produce the random sample of 100 transactions?
THE COURT: I think you have to do that for sure. You have got to produce the random sample of the 100 transactions. You have to explain the program that created that random sample of 100 transactions and you have got to produce the data so that the jury could, itself, if they wanted to, replicate that. I don't know if that is 4,000 pages, 10,000 pages or 2,000 pages but that's, I think, what needs to occur.
MR. TURNER: When you say the data, you mean beyond the 100?
THE COURT: Yes.
MR. TURNER: I think that we are just going to forego that. I don't think we need it. And so, I think we are ready to move on.
THE COURT: All right. So, we won't then return to this topic so then I think I take it from Mr. Turner's statement that they won't produce that 940D and I will not come into evidence.
MR. HOWARD: I think it is I and J -- sorry, H and I.
THE COURT: H and I.
MR. HOWARD: D was the last exhibit that we showed.
THE COURT: So, H and I will remain excluded from evidence based upon the government's lack of desire to put in the underlying data.
Let's then get Mr. Shaw Back out here and we will proceed.
Joe, you can go ahead and bring out the jury while Mr. Shaw is coming out. That's all right.
So, this issue is closed. Done. No briefing tomorrow. We are done with it. Mr. Dratel, we are done with this issue, it is not going to be reopened tomorrow.
MR. DRATEL: Great. Thank you, your Honor.
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(Jury present; witness resumes the stand)
THE COURT: Ladies and gentlemen, let's be seated.
Tomorrow we are going to arrange to have afternoon coffee service for you folks. When I say coffee it will be tea, coffee, water, something like that so you have something to look forward to at this hour in the day.
I want to thank you all for your patience. We have Mr. Shaw back on the stand.
Mr. Howard, you may proceed.
MR. HOWARD: The government has no further questions.
THE COURT: Mr. Dratel?