7.Hearsay and Reliability Rulings on Silk Road Communications
39 linesTHE COURT: We can end for the afternoon now.
Ladies and gentlemen, we're going to end for today. We're going to pick up tomorrow morning and, again, we'll start at 9:30 and if you all can be on time, that would be really helpful.
If you have any transit issues, let Joe know. You've got his numbers already so that we know where to -- know where you are and how long you're going to be. But if at all possible, please try to get here since we'll all be waiting.
I want to remind you not to talk to anybody about this case, including each other or anybody in your life to avoid any news articles either on the Internet or in print or anything that might be on the TV. If you happen to be watching the TV and something comes on, I instruct you that you may not listen to it or watch it. You must turn it off.
You can turn it back on as soon as it's over. And after all of this is over, after the whole trial is over, you'll be able to go back at that point later on and look back over things, but right now, I need you not to look at anything at all, all right?
We'll see you tomorrow morning. Thank you very much.
(Jury excused)
(Continued on next page)
(Jury not present)
THE COURT: Let's all be seated.
I wanted to state for the record some of the further rulings. There had been some conversations with inigo that were talked about relating to the type of support that had been provided. To the extent that the type of support is offered in any way for the truth in terms as opposed to the fact of providing support, which is the far more likely use those would be the conversations and communications of a coconspirator as we have previously discussed.
In terms of GX 127, that is either not for the truth or it would be under the hearsay exception of coconspirator statements of the staff chat. That's really not particularly for the truth.
127A is 801, Rule 801. 127B is not for the truth. 127C is not for the truth. 127D is not for the truth. 129A, there was a Vayner objection only. That was a screen shot. It was appropriately authenticated. And 127 is not for the truth.
Does anybody want to comment? Those were the bases for my rulings. So the hearsay objections, which you made two types of objections, hearsay and Vayner: Vayner I have dealt with before. Hearsay, if it's not for the truth of the statement asserted, then it's not hearsay, so that doesn't apply.
MR. DRATEL: Also 117, the 117A and B this morning, and you asked if we wanted additional ones under the rubric of "not for the truth." I think they would qualify as well.
THE COURT: Let me take a look for a moment. Right. 117A is not for the truth and 117B, which is the amount, the alleged -- or the cost of a certain number of pills is not for the truth.
MR. DRATEL: I think you already told the jury about 118.
May I ask, let me consider this overnight whether to ask the Court to instruct the jury as to the specific exhibits that you have just listed for this afternoon as to whether we want the instruction on that or to leave that for another time.
THE COURT: All right. I'll wait for your application and then depending on what it is, I'll obviously consider it.
Is there anything that you folks wanted to put on the record at this point in time? And why doesn't the government give us a sense as to what is coming up.
I heard you say, Mr. Turner, you have an hour left. And how long, Mr. Dratel, do you think you'll have with this witness? Is it about an hour still or less than that?
MR. TURNER: An hour or less, I'd say.
THE COURT: Forty-five minutes to an hour, something like that.
MR. TURNER: That's probably right.
THE COURT: Mr. Dratel, based upon that?
MR. DRATEL: I could take him the whole day tomorrow, the whole rest of the day. I can't say for sure because cross-examination being what it is, but it's conceivable that it could go the rest of the day.
THE COURT: Fine. In terms of the next witness, what we'll do is at a break tomorrow afternoon or some point, we'll get a sense of how much more time you have left so that the government can bring over whomever is next, because I'll want to continue on with the next person right away.
MR. DRATEL: I will do two things: When I come in tomorrow, after I have gone over everything again and see where I want to go, I'll give them a better sense and the Court a better sense, but also, by lunchtime I'll know. And then if you put in redirect and recross that's not extensive, we'll have a better sense.
THE COURT: You folks can confer and make sure we get people lined up.
Is the next person going to be the person who was second on the government's witness list?
MR. TURNER: If your Honor has the most recent one, it should be Tom Kiernan, Thomas Kiernan.
THE COURT: That is the next name I have, so it would be Mr. Kiernan?
MR. TURNER: Correct.
THE COURT: Who would be next? And he is anticipated to be slightly shorter than this witness?
MR. TURNER: Correct.
THE COURT: We'll proceed as we have all discussed for tomorrow. Is there anything else we should go over right now?
MR. TURNER: Not from the government.
MR. DRATEL: There is one thing I wanted to clarify with respect to our objection on the business records issue, it's not only about contemporaneous knowledge or contemporaneous verification, but also the reliability of the record itself. So we would say in this context in an Internet context particularly when you have a witness who was masquerading at the time that the reliability of communications can't be validated in a way that is necessary for a business record.
THE COURT: I think part of the issue is simply whether or not -- well, Mr. Turner, why don't you respond.
MR. TURNER: I think you're mixing apples and oranges here. In terms of the reliability of the software, the agent testified that he spent thousands of hours on the system, knew how it worked and knew that when people would post, the time of the posts would show up, where the timestamp is and the name of the poster would show up where the username is, etc.
There's no reason to believe that the system was somehow unreliable in that regard. The fact that he's an undercover, quote, masquerading as another user has nothing to do with the technical reliability of the software and what it displays.
THE COURT: Go ahead, Mr. Dratel.
MR. DRATEL: One is, is that doesn't verify the substance of the communications made in those exhibits. Also, he's not a business records person for the software.
THE COURT: Let's put it this way: He's an individual who participated directly in both reviewing the communications for accounts he had taken over of administrators and also creating communications himself. There's no indication in the record currently, there's no factual indication of unreliability that things were not recorded and retained in the manner in which they appear to be.
If such information develops, we'll take that up at the right time there's no indication right now that the posts weren't appropriately recorded, appropriate being simply that the key strokes resulted in the letters on the page indicating what those words were in the English language.
MR. TURNER: To add one more factor to the record: He was a moderator of the forum so he was responsible for keeping it organized and have the ability to do searches and that sort of thing that ordinary users couldn't do so he was in some way a caretaker of the forum and many ways like a custodian of record.
THE COURT: All right.
MR. DRATEL: I was more concerned, I believe, when I was objecting about messages that occurred before he even got to that stage that he was validating that he had not been part of that he was just looking at retrospectively; but also that it's not for the truth because the business record aspect, it has to be reliable, the information in there. So the fact that it's reliable that that's what appeared on the screen doesn't mean the substance of the communications were reliable.
THE COURT: I hear your point. The witness indicated that based upon his testimony, which you'll take up at cross-examination, is that when he took over an account, the account would have resident on it, if you will, whatever historical information continued to exist on it. Some of it -- there may be certain things that were gone or not gone.
But I think we hear each other's positions. You've got my ruling on this. At this point in time, I don't have any basis to believe that the information that was recorded were not statements made as they appear to be indicated. They appear to be accurate reflections of words that were put on the page.
MR. TURNER: Not to belabor the point, but for the record, our position is that virtually all of these communications are not offered for the truth, things like chat instructions, these were not offered for the truth value; it's just to document the role of DPR on the site as the boss of these employees. That's all.
THE COURT: I understand that. And I think I tried to indicate when certain things were not for the truth, but there are certain statements which certainly overlap with assertions that the government is attempting to prove. So whether or not you're going to turn back to some of those statements, for instance, involvement in transactions, that will be something that, if you do, I'll have made an appropriate ruling one way or the other.
Let's all take our break. We'll pick up tomorrow morning at 9:00 a.m.
COURT CLERK: All rise.
(Adjourned to January 15, 2015 at 9:00 a.m.)
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