2.Defense Documentary Evidence and Prince Testimony Limits
150 linesTHE COURT: So we'll have Kincade and Prince. And Prince is going to be talking about an investigation which she herself conducted and has firsthand knowledge.
MR. DRATEL: Put in some documents mostly. She'll be putting in documents.
THE COURT: Let's take it step by step. I assume she's got some independent foundation and basis. She can't be a generalized custodian of records but we'll take it --
MR. DRATEL: She reviewed certain discovery that they provided. It's clearly authentic because it's provided by the government. And you wouldn't let me get it in through the guys who authenticated the actual material, so I'm putting it through my witness. Like you said, put on a witness.
So I'm putting on witness who has reviewed the material provided by the government. I'm putting in two documents through her that were government exhibits back in December. These are two documents that were government exhibits, Government Exhibit 242 and Government Exhibit 252. They were government exhibits back in December, and I'm putting them in.
THE COURT: What's her basis for firsthand knowledge as to those documents?
MR. DRATEL: She has reviewed the image of the laptop that the government provided us. The government is going to back off that then, fine; if they're going to make that argument, that's another argument that is really --
THE COURT: Mr. Dratel, I simply asked you for just what she had looked at. You've answered that. Exhibit 242, I thought this came in.
MR. DRATEL: Which?
THE COURT: 242.
MR. HOWARD: To be clear, some of the exhibits were renumbered, so I think he's referring to what was originally numbered as 242.
THE COURT: What is the current number?
MR. DRATEL: There is no current number because the government pulled it. It's our exhibit I believe it's D. I have the original government exhibits here, your Honor.
THE COURT: And what's the second document?
MR. DRATEL: I'm sorry. 243, not 242. 243 and 252 is the original exhibits.
THE COURT: Basically what she's going to do is say I reviewed the hard drive. These are documents which I saw on the hard drive. They're true and correct copies of what I saw on the hard drive?
MR. DRATEL: Correct.
THE COURT: And she's not going to interpret the content?
MR. DRATEL: I'm going to read.
THE COURT: That's fine. If they're received into evidence, you would read it.
Is that going to create any problems?
MR. TURNER: We don't have any authenticity objections. I think we're going to have a relevance objection to Exhibit N. I don't know how it's relevant to the defense case. And if I'm guessing why they want to put it in, then I think we're going to object for the basis.
THE COURT: Let's see how that goes. If there's no authenticity issue so far as this witness is concerned, she can do what Mr. Dratel is suggesting, which is to say I reviewed the hard drives, these were on the hard drives, I printed them off, here they are. They'll be received into evidence. Mr. Dratel will then -- unless you object on relevance grounds, I'll take a look at it -- but Mr. Dratel will read in whatever he's going to read in.
MR. TURNER: Right. I think our objection is going to be in the nature of relevance and hearsay.
THE COURT: Why doesn't somebody hand me them so I can look at these while we are waiting for the jury. We're waiting for four. They have gotten used to us.
MR. DRATEL: C and N.
THE COURT: Is she going to do anything apart from those two documents, Mr. Dratel?
MR. DRATEL: Yes, your Honor. She's going to talk about her review of the Google production with respect to emails during periods of time that we have already established. There was a gap in the login. And then she's also going to recite from the complaint about four sections, probably about four sentences.
MR. TURNER: We object to that, your Honor.
THE COURT: So I understand what their issues are, do you have any issue with the witness saying I reviewed the Google production and there's a gap between X period of time and Y period of time? This is what I have personally observed from my review of these hard copies. There's nothing for X to Y.
MR. DRATEL: No. The opposite, that there are emails.
THE COURT: Okay, whatever it is. My personal observation of the production is that there are emails covering whatever the period is.
MR. TURNER: The issue is whether she has foundation to opine about --
THE COURT: She's presumably looked a the production.
MR. TURNER: Right, but there are two issues. We can look at the emails in the email account and then there's the logs, the IP logs which show the defendant log into a Gmail account. I know from having dealt with Google before that those IP logs are not complete; they don't log in every log, for example --
THE COURT: But she won't be speculating as to why. She'll just be saying this is what's here; this is what's not here. So be it.
MR. DRATEL: Why did we present a stipulation that those are accurate records if he knows they're not? I don't get it.
THE COURT: I don't even follow that one. I'm focused on one very small thing, which is, it sounds like she's reviewed this production.
MR. DRATEL: It's simple.
THE COURT: And she just wants to say I review it, here's what is here.
MR. TURNER: The problem is, your Honor, if she's interpreting --
THE COURT: She can't interpret, right, because she's not a Google witness.
MR. TURNER: If that's implicit in the testimony, then she's interpreting what the Google records mean.
THE COURT: We'll get to each question as it comes, but in terms of her ability to say I reviewed the Google production, this is what I have observed personally in terms of the Google production in terms of the date ranges are as follows X, Y or Z, that's fine.
MR. DRATEL: They can put on a witness to say that the records mean something else. I'll argue that in summation. I'm not going to ask her to argue it.
THE COURT: I take it she's not going to draw conclusions from the presence or absence of documents; is that right?
MR. TURNER: That's what I'm --
THE COURT: I'm trying to figure out from Mr. Dratel.
MR. DRATEL: Yes.
THE COURT: She's not going to draw conclusions. She's just going to state the facts.
MR. DRATEL: No.
THE COURT: That's fine. We'll take it step by step. These are the two documents I understand she'll be doing other than that and reciting from the criminal complaint.
MR. TURNER: I just want to be clear on what is being offered because the government is getting conflicting messages. One of the exhibits looks like this.
THE COURT: That I have as Defense Exhibit C it looks like. It's the multipage document.
MR. DRATEL: No, no. It's D actually. C.
THE COURT: I have C.
MR. DRATEL: C is the law enforcement file.
MS. LEWIS: Here is a copy of C.
MR. TURNER: This I think raises problems, your Honor, and I think we need to address it at side bar. This raises significant problems.
THE COURT: Let me read this.
MR. DRATEL: This was a government exhibit.
THE COURT: This was originally a government exhibit?
MR. DRATEL: Yes; 243.
MR. TURNER: It's different.
MR. DRATEL: I printed it this morning from their first disk. I can give the Court the copy that I printed this morning from their disk.
MS. LEWIS: Actually, I even have a copy here that I put a sticker on weeks ago. You can see on the back.
MR. TURNER: This means nothing. We need a side bar.
THE COURT: Hold on.
You know what, I'll tell you, I need to read this and I can't do it with you folks because you interrupt my train of thought.
Joe, how many are we waiting for? We are still waiting for four.
MR. TURNER: I'd also note this was not emailed to us before the Court's deadline for disclosure of exhibits. It was just sprung on us now.
THE COURT: All right. Well, we've had issues. We're not going to quibble with timing in light of the back and forth and what short lengths of time people have had for documents. I will look at this and I think we resolved then the Google. production.
The reciting from the complaint, are we going to have any issues with that?
MR. TURNER: Yes, your Honor.
THE COURT: Tell me what your issues are with that so I can think about that, too.
MR. TURNER: This goes back to the GAF issue.
THE COURT: I understand.
MR. TURNER: Great. First of all, GAF has not been held to apply to an affidavit in the complaint. Ramirez specifically reserved decision on that. But in any event, even if it did, the prerequisite for it to apply is a genuine inconsistent statement with some position the government is taking now.
THE COURT: Let me find out what the four statements are, Mr. Dratel, that you are considering getting in.
MR. TURNER: It was also not provided as a defense exhibit.
THE COURT: We were talking about the GAF issues back then.
MR. TURNER: The complaint is an exhibit.
MR. DRATEL: It's not an exhibit. It's an admission.
THE COURT: He wants to put it in as an admission. And actually whether or not it would come through this witness and whether or not Mr. Dratel would stand up and state it as an admission I think is not -- the vehicle is not the issue; it's the content.
MR. DRATEL: One is the $79.8 million in commissions. That's one. That's in paragraph 22C. And then paragraph 24A, the Silk Road forum in its current form was created on or about June 18, 2011.
At 24CII, the first sentence which is a quote from on or about December 1, 2011, DPR announced that he had changed the onion address for the Silk Road website, stated Silk Road now resides at a new more easily remembered URL address.
And III: On or about October 19, 2011, DPR posted a message concerning an outage of the Silk Road website explaining we are having to rebuild the site from a backup. DPR assured the sites users, etc.
THE COURT: Let me ask you, in terms of the DPR October 19 posting, is it the case that that posting is somewhere on the hard drives that have been received into evidence?
MR. DRATEL: Yes, from the servers.
THE COURT: Is it also the case that the quote from on or about December 1, 2011 where DPR announced that he had changed the onion address for the website, stated Silk Road now resides at a new more easily remembered URL address, I actually thought we had gotten that into evidence at one point.
MR. DRATEL: We may have, your Honor. I'll withdraw that one.
THE COURT: I think that came in early. But in any event, I would assume that would actually be part of a post also that is on the servers.
MR. DRATEL: Yes.
THE COURT: So I understand the lay of the land, would you state the date of the complaint?
MR. DRATEL: Okay. I'll do it how ever the Court wants me to do it.
THE COURT: My copy of the complaint, which I used to carry faithfully because this was a big issue, I left downstairs. Does somebody have a copy I can take a look at?
MR. DRATEL: I have it, your Honor.
THE COURT: It's 22C.
MR. DRATEL: May I add one thing. With respect to Ms. Prince, I would have, had the Court not precluded Defendant's E earlier, I would have also moved to introduce that through her.
THE COURT: So noted. Are you planning on reading the entire -- it looks like the October 19, 2011 post is just a post. Are you going to read that entire paragraph, or just the top part? You've highlighted just a piece of it.
MR. DRATEL: Right. I'll read the whole thing if that's the way the Court wants me to do it. I was trying to be as surgical as possible.
THE COURT: The one thing you shouldn't do is talk about based on his training and experience what it means.
MR. DRATEL: Right.
MR. TURNER: Your Honor, we addressed this issue, you may recall, in our January 22 letter.
THE COURT: I remember.
MR. TURNER: There's United States v. Purdy. It clearly holds you cannot just introduce a bill of particulars, prior indictment, certainly not a complaint without some showing that is inconsistent with the position the government is taking now.
If they want to produce these forum posts, they can introduce the forum posts. There's no need to get them in through the complaint. They have the forum posts.
THE COURT: Right, but I have the ability, if there is an easy and efficient way to do something and that these are accurate reflections of forum posts, just to have it done through these, right?
This doesn't strike me as something which is particularly earth shattering and you can address the timing and what inference should be drawn from the timing.
MR. TURNER: But getting it in through the complaint suggests that the government is taking some different position now.
THE COURT: Mr. Dratel, are you amenable to just saying that you're going to read the following into the record --
MR. DRATEL: Sure.
THE COURT: -- from posts from Silk Road?
MR. DRATEL: Yeah.
THE COURT: You can use the complaint's recitation as a faithful representation of what those posts said?
MR. DRATEL: That's fine.
THE COURT: So you won't cloak it in the ermine cloth, such as it is, of a complaint.
MR. DRATEL: No, not of Mr. Turner's complaint.
THE COURT: Fine. You can do those. That issue is done. Hand back the complaint. Just don't call it a complaint and please, as a result, you can just say that these come from posts on Silk Road. Now, if those paragraphs don't come from posts on Silk Road, you're going to have to modify that language in some manner.
MR. DRATEL: Okay.
THE COURT: All right. Okay.
MR. TURNER: I'm sorry to belabor the issue, but I'm not clear. There were two posts and then there were two other things from the complaint that the defense wanted to read that were not in the nature of posts.
THE COURT: He's going to do 79.8 million --
MR. TURNER: That's not a post.
THE COURT: -- in commissions.
MR. TURNER: That has been directly addressed in the government's letter. It's not inconsistent in any way with what --
THE COURT: Then it's not going to be a problem for you. I'm allowing it. I'm allowing it. No. Sit down. I'm allowing it.
MR. TURNER: It's suggests --
THE COURT: I'm allowing it.
The June 18, 2011, the October 19, 2011, the June 18 and the October 19 both come from posts, Mr. Dratel.
MR. DRATEL: Correct.
THE COURT: The 79.8 does not, so for that one, you can say "information as of" and then give the date of the complaint, all right?
MR. DRATEL: Okay. We have December 1. I'm sorry.
THE COURT: 22C.
MR. DRATEL: Okay. Right. 22C is first.
THE COURT: June 18, 2011.
MR. DRATEL: Yes.
THE COURT: October 19, 2011.
MR. DRATEL: Right. Then also on December 1 the page before, 401C, it's another post.
THE COURT: It's a post.
MR. DRATEL: Yes, December 1, 2011.
THE COURT: If it's a post, you can read it as a post.
MR. DRATEL: What does the Court want me to say --
THE COURT: About the 79.8, which apparently that may have changed. One can argue an inference that it did or did not change over time, but that is based upon information as of this date.
MR. TURNER: We ask that the context of that sentence in the complaint be read in in full, because the complaint is very clear that this was based as of the date of the arrest.
THE COURT: Fine. Why don't you pull out that language and make sure you all agree on the highlight on that.
MR. TURNER: I'd also like an instruction to the jury that they're not to infer that there is some sort of inconsistency here. This is why it's being put in, because the defendant is trying to confuse the jury that the government said that $80 million in bitcoins were seized or were part of the commissions and now it's only saying that $13 million in commissions. It is apples and oranges, and they're trying to treat it as the same thing.
This is being introduced for no other purpose but to confuse the jury and that's why Purdy is important.
THE COURT: All right. I will give the instruction. Mr. Dratel, you'll give the entirety of that context, all right?
MR. DRATEL: Okay.
THE COURT: We're still waiting on three. We'll come back out as soon as they have or I have a resolution of this situation.
COURT CLERK: All rise.
(Recess)
(Continued on next page)
(Pages 2084 through 2097 sealed by order of the Court)
(In open court; jury not present)
COURT CLERK: All rise.
THE COURT: Let's bring the jury out.
COURT CLERK: All rise as the jury enters.
(Jury present)
THE COURT: All right. Ladies and gentlemen, let's all be seated.
Your witness. We've got a new witness.