1.Coconspirator Hearsay, DPR Posts, Drug Listings, and Juror-Contact Inquiry

THE COURT: Good morning to all of you.

OK. I've got two matters to raise. One is I wanted to refer specifically to some additional support for the Court's ruling yesterday relating to the co-conspirator exception for the hearsay objections and to refer in particular to the Bourjaily case, which you are all very familiar with, I'm sure. It is a Supreme Court case. B-o-u-r-j-a-i-l-y, which requires the Court to make a finding that the various elements for the co-conspirator exception are made by a preponderance, which is what I believe I said.

I also had mentioned that there were some instances where the evidentiary rules were different. Let me just be clear that that is not the case with respect to the co-conspirator rule. It is a preponderance standard. Where it might be different, and this is a question that as yet actually unresolved, is with things, for instance, having to do with relevance and some probative evidence, and whether or not that is a lower standard than preponderance is something which is an open question but need not trouble us here. I wanted to make it clear that my findings as to the co-conspirator exception are by a preponderance of the evidence.

And in terms of the screenshots in particular of the narcotics, I wanted to indicate that -- as I had said yesterday, and as the Bourjaily case makes clear, "The inquiry" -- I am reading from the Bourjaily case, "The inquiry made by a court concerned with these matters is not whether the proponent of the evidence wins or loses his case on the merits but whether the evidentiary rules have been satisfied. Thus, the evidentiary standard is unrelated to the burden of proof on the substantive issues in a criminal case," At 2278.

With that said, I do find by a preponderance that as to the screenshots the vendors were in a conspiracy with Dread Pirate Roberts. It remains subject to connection to the extent that the government is asserting that Dread Pirate Roberts at that time was Mr. Ulbricht. The Court does believe at this point in time that, subject to that connection, there is sufficient proof of a conspiracy with a common criminal objective, which is the distribution of illegal narcotics. There is demonstration of that conspiracy through, for instance, the vendor contracts, which were put in yesterday. There is also evidence of personal involvement by Dread Pirate Roberts in the form of information put in yesterday of the document -- one of the two documents relating to commissions refers to commissions being taken in instances where he has and the word "involved" is used specifically and "escrow," and that creates a level of involvement as well as the finalize buttons and the arbitration process, all of which there was evidence as to yesterday from Mr. Der-Yeghiayan.

In terms of the in furtherance requirement, the Court does find that putting the screenshot of the illegal narcotics up on the Web is in furtherance of the distribution of illegal narcotics, and the reliability of the content being what it purports to be was in part supported by the testimony yesterday that there had been buys from the undercover agent, Mr. Der-Yeghiayan, that indicated that the narcotics received in response to orders from the website tested in all but one instance positive for the narcotics they purported to be. Therefore, based upon a preponderance of the evidence, I just wanted to indicate that the co-conspirator exception did apply in the manner that I suggested and with the evidentiary basis that I suggested.

The second issue is that I understand that a juror was approached yesterday on the subway platform by an individual who represented himself to be a New York Post reporter. It was an individual with a red beard. And the juror indicated that she did not speak to him and that she walked away.

It is my intention -- and I should say that that was reported to my deputy. I have not had a conversation with the juror. My intention this morning is at the appropriate time to make sure that I reiterate carefully and slowly the general instructions, indicate that if anybody approaches them purporting to be a reporter or anybody else, that they should walk away and do just that.

Do you folks believe that anything further need be done in this instance at this time? I mean, there are pros and cons to having people brought out here and individually questioned, but I will take applications.

It was Juror No. 2, by the way.

THE COURT: It doesn't bother me. What I want to do for the podium, my main concern is that the jurors can see what is going on. You are certainly welcome to move that back a little bit so long as it doesn't create so much distance that there is another issue, but I don't think you are talking about more than a few inches.

In terms of the monitor, do whatever you need to do. I need to see Mr. Ulbricht's face as well, but I can because he is sufficiently tall that I can actually see him over the monitor. Just move it a little over.

THE COURT: Let's all be seated.

Juror No. 2, thank you for coming out here. I know it is a little intimidating to come out all by yourself with this whole big room full of people. I appreciate it.

THE COURT: OK. All right. And what you did was perfectly appropriate and absolutely right and consistent with the Court's instructions. So I thank you for that.

And let me just ask you, did the fact that you were approached in any way make you feel like you are going to be unable to be fair and impartial in this case?

THE COURT: I think that is very fair.

One thing we want to make sure of is that a conversation even about an incident like that doesn't end up leading to conversations with other jurors, and if it has just let me know and then we'll figure out what to do.

THE COURT: OK. All right. So I'll address that, you know, by making sure that I have communicated all the instructions properly.

Will you be sure not to --

THE COURT: All right. Terrific.

So go back into the room, and even if they ask you what happened just now, just say --

THE COURT: All right. Let's all be seated.

OK. Any comments on what just occurred? My view is that what I am simply going to do now is before the next break, but not right away, but before the jury goes back into the room, to give them their instructions again slowly and carefully. I can also, if people would like -- well, what would you like? Anything else other that that?

THE COURT: All right. So the press who is here in the room, you see what happens -- if this did occur, what happens when this kind of thing occurs because of the possibility of juror influence.

So here's what I am going to do. When the group comes out here, I am going to then state, in order to put all of these pieces together that you folks suggested: A juror was approached. She did exactly the right thing, which is she walked away. And I want to make sure that you all understand that if the press, or anybody else even purporting to be the from the press or anybody approaches you about this case, that you do the same thing. Just walk away. Do not have a conversation. Don't talk to each other about any approaches that may be made to you about this case. Do let us know. And has anybody been approached or know about that approach other than what I said and believe that at this point they cannot be fair and impartial based on that?

Is that all right, Mr. Dratel?

THE COURT: Both parties are in agreement that that would be an appropriate way to proceed.

OK. Now, Mr. Turner, you had other things.

THE COURT: The issue comes in -- just to be very clear on the first point, I think that is exactly what I was differentiating between yesterday, the portions which are not hearsay versus the portions which could be hearsay, and we, I think, now dealt with them thoroughly.

In terms of the posts, the website vendor -- I don't mean the chat posts, I mean the screenshots.

THE COURT: When you put up one that says tell us some of the things that were available on that website and the witness says "heroin," all right, not "this is a photograph which has the words on it indicating heroin," then it is being offered for the truth, I think. I think that is a fair argument. That is one that the defendant raised pretrial as part of the hearsay objections.

Nevertheless, my ruling on the co-conspirator exception, sort of the reason why I am belaboring it is for that very reason, to ensure that the record is clear as to the basis for my ruling. But I do think that there is some amount of truth which is being sought after and potentially sought to come in for based upon the content. It is not just a picture of a brown block but the word "heroin" around "heroin" that appears underneath it.

THE COURT: Now, I just want to pause for one second.

If you don't intend something to be offered for the truth, you will need to approach the questions in a manner that makes that clear. In other words, I see that this indicates, you know, whatever, but, you know, some set of questions other than tell me the type of goods that were sold.

THE COURT: All right. Ladies and gentlemen, let's all be seated. Thank you.

I see that you folks -- it looks like the coffee service has arrived this morning. Are there tops for the coffee service? Terrific. OK.

Now, remember, confess if you spill, and I will, too, if I spill up here.

Ladies and gentlemen, one thing I want to mention before we start this morning is that one of the jurors was approached yesterday on the subway platform by somebody who identified himself as a member of the press, and she did exactly the right thing, which is just walked away, didn't engage at all, and that's exactly the right thing.

So if that happens to you, I instruct you to do the same thing. Not to talk to anybody about this case no matter who they are. As I've said, even each other. And so it's very, very important.

Now, if it does happen to you and somebody approaches you -- somebody approaches you about this case, be it from the press or somebody else, don't talk to each other about it. Mention it to Joe, and then we'll take it from there. All right?

So in light of the fact that it has happened once and I have just mentioned this to you folks, is there anybody who believes that the fact that somebody has been approached and that a member of the press, or somebody identifying themselves as from the press, has approached somebody, does that make anybody feel that they can't be fair and impartial in this case?

THE COURT: All right. Thank you.

We'll go ahead and we'll continue. I want to remind the witness, sir, Mr. Der-Yeghiayan, you are still under oath from your first day and from yesterday.

All right, sir?