4.Exhibit Rulings and Curative Instruction on Agent Suspicions
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(In open court; jury not present)
THE COURT: Let's all be seated. One request that we had gotten from the jury was that they wanted some magazines to read while they were just spending time in the jury room.
MR. DRATEL: Not during the testimony.
THE COURT: Not during the testimony. I have had four, five just random magazines picked up in which I do not believe there are any articles or reporting on Silk Road. They are Vanity Fair, New York Magazine, Sports Illustrated, the NFL Sports Illustrated and Vogue, and they're all from the current newsstand.
If you folks would like to look at them and assure yourself that there is nothing in here that you object to in terms of them just being used as sort of doctor-room, dentist's office reading.
MR. DRATEL: Did the Court look through them already?
THE COURT: We looked through them. I personally have not. That's why I'm offering them to you folks to look at them.
MR. DRATEL: It's New York Magazine, right?
THE COURT: I believe it's New York Magazine. I encourage you folks to take a quick look to ensure yourselves there's no problem and then we'll put them in there. There's no rush. If anybody finds any articles on this case, please let me know. I don't intend to be turning over anything that requires the jury to themselves avert their eyes, but that's the only issue that I had on that one.
We had a couple of documents that were objected to: GX 242, GX 250, 251 and 255. And as to those, for the Silk Road expense report, there had been no objection lodged. You had said, I believe, Mr. Dratel, Vayner and some of the other objections and hearsay.
MR. DRATEL: I'm not quite sure why we missed that one, but yes, in the same character in terms of some of the other documents.
THE COURT: I'm not holding you to a waiver.
Would the government like to respond in terms of 250? Mr. Howard.
MR. HOWARD: This document was recovered from the defendant's computer. We had the testimony from the computer scientist. I think it's properly authenticated under Vayner.
THE COURT: The Court agrees. And in terms of hearsay, there's either the information is not there for the truth or to the extent it is, it would be an admission subject to connection by a preponderance of the evidence.
Exhibit 251 is the net worth calculator spreadsheet. I believe that your objections were the same for 251.
MR. DRATEL: That's correct.
THE COURT: And the Court's rationale for that is the same as well.
For 255, that was the weekly to-do list and the only objection there was hearsay. I don't believe that that was offered for the truth.
Mr. Howard.
MR. HOWARD: That's correct, your Honor.
THE COURT: So it doesn't fall within the hearsay rules.
And 242 was the weekly report. That similarly had a Vayner issue. We have talked about that. I do believe that the Vayner issues had been eliminated by the foundation, and then in terms of hearsay, it's not offered for the truth. Am I correct, Mr. Howard?
MR. HOWARD: Yes, your Honor.
THE COURT: That's the bases for those rulings. Now, we do need to talk about, as I said I would do, not this morning but at another break, the striking of the testimony that I had said I would strike.
I wanted to elicit from you folks, if you want to make any suggestions, your views as to how that should be done. I have previewed what the Court was suggesting was its thoughts on that, which was to give a generalized instruction.
You'll note that the testimony that has been struck has now gone up on ECF as an order of the Court. It should have been posted. So the court reporters should strike and will make sure that they strike the portions which are referred to in the shaded portions of today's ECF filing related thereto, and we'll make sure that it's absolutely clear.
But in terms of instructing the jury, Mr. Turner.
MR. TURNER: I drafted something for your Honor's consideration. It's fairly simple.
You heard testimony while Special Agent Der-Yeghiayan was on the stand concerning his personal beliefs or suspicions about particular individuals at various points during his investigation. I instruct you that what the agent believed or suspected at any particular time, whether about the defendant or others, is not evidence, and you are to disregard any such testimony.
THE COURT: Can you repeat that. Pick up with "personal beliefs and suspicions."
MR. TURNER: Sure. Personal beliefs or suspicions about particular individuals at various points during the investigation I instruct you that what the agent believed or suspected at any particular time, whether about the defendant or others, is not evidence, and you are to disregard any such testimony.
THE COURT: Mr. Dratel.
MR. DRATEL: Yes. One is, I don't think it was mentioned, the defendant. The witness said nothing about any suspicions about the defendant. That's highlighting something that wasn't in the testimony. So I don't think you should say about the defendant because he didn't talk about that.
THE COURT: I actually think it was more helpful to have it about it the defendant.
MR. TURNER: That's how it was intended.
MR. DRATEL: But it makes it seem like he somehow suspected the defendant and they're supposed to ignore that, but he never testified about that.
THE COURT: Fine. If you want it out, that's fine.
MR. DRATEL: Yes. And after that first sentence it's sufficient. The personal beliefs and suspicions about other people, that testimony should be ignored. You don't need to repeat it. It should be streamlined.
THE COURT: I also intend to say, so that the jury is not confused, I'm going to actually give the entirety. I don't think that it's very long. It's going to take seconds: As to other testimony from Mr. Der-Yeghiayan, you may consider it during your deliberations and give it the weight that you believe it deserves.
I don't want there to be any confusion and somehow have the jury misunderstand that we're only striking a piece and not all.
MR. DRATEL: Could you just add to that the usual -- consistent with my general instructions at the end of the case about credibility?
THE COURT: Yes.
MR. DRATEL: So that it doesn't --
THE COURT: I'll say consistent with all my instructions at the end of the case.
MR. DRATEL: Right.
THE COURT: I'm not going to pull out one instruction. I will give that instruction, all right --
MR. TURNER: Thank you, your Honor.
THE COURT: -- when they come back as a housekeeping matter.
Is there anything else that we should go over before we take our own brief break?
MR. HOWARD: Not from the government.
MR. DRATEL: No, your Honor.
THE COURT: Thank you. Let's take our own break.
(Recess)
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(In open court; jury present)
THE COURT: I had one housekeeping matter that I wanted to go over with you folks. You heard testimony while Mr. Der-Yeghiayan was on the stand regarding personal beliefs or suspicions he may have had about particular individuals at various points during his investigation. And I instruct you that what the agent suspected about others isn't evidence and should be disregarded.
Now, consistent with all of the instructions I'm going to give you at the end of the case, there was other testimony that Mr. Der-Yeghiayan provided which you may consider during your deliberations and give it the weight that you deem that it deserves. So it's the suspicions, all right? Thanks.
Mr. Howard, you may go ahead and proceed, sir.
MR. HOWARD: Thank you, your Honor.
THE COURT: I realize sometimes I have to think about how what I'm saying reads in the transcript. When I use the word "suspicions," I meant it's the suspicions that should be disregarded. I hadn't finished that last sentence. Thank you.
Mr. Howard, you may proceed.
MR. HOWARD: Thank you.