1.Writing-Comparison Evidence and Complaint Paragraph 22C Rulings
131 linesUNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ------------------------------x UNITED STATES OF AMERICA,
v. 14 Cr. 68 (KBF) ROSS WILLIAM ULBRICHT, Defendant. ------------------------------x New York, N.Y. January 21, 2015 9:22 a.m. Before: HON. KATHERINE B. FORREST, District Judge APPEARANCES PREET BHARARA, United States Attorney for the Southern District of New York BY: SERRIN A. TURNER TIMOTHY HOWARD
Assistant United States Attorneys JOSHUA LEWIS DRATEL LINDSAY LEWIS JOSHUA HOROWITZ Attorneys for Defendant - also present - Special Agent Vincent D'Agostino Molly Rosen, Government Paralegal Nicholas Evert, Government Paralegal Sharon Kim, Government Intern
(Trial resumed; jury not present)
(Case called)
THE COURT: Good morning to all of you.
The first thing I would like to do is to have you, Mr. Dratel, while I am addressing a couple of other matters gather up what I have been referring to as the AA posts that you wanted to compare to the mises piece, the mises.org piece, so I can just take a quick look at them. I have reviewed the portion of the transcript yesterday, as I had told you I would, early relating to that discussion. So I just want to take a quick look and see whether or not we're able to do anything with that.
MR. DRATEL: I'm not sure what the Court means in terms of are you talking about the language analysis?
THE COURT: Yes. We dealt at sidebar with an evidentiary issue, and you wanted to use some mises posts of some sort with the Silk Road forum.
MR. DRATEL: No, it is not the mises posts with the Silk Road forum. What it was was --
THE COURT: Two different. One was a mises.org.
MR. DRATEL: It was not mises.org necessarily. It was this witness' analysis, comparison of the writing that he attributed to Anand Athavale and Dread Pirate Roberts' writing as well in comparison.
THE COURT: Do you have --
MR. DRATEL: Yes. I can find it from the 3500 --
THE COURT: If you can. Because what I am wondering is whether or not there is a way of doing something that is a factual-based series of questions. In other words, in terms of were you familiar with these mises whatever they are called, whatever the right word is called. Did you review them in the course of your investigation? Yes. And did they have the following name associated with it? Or whatever they are. Did you separately look at Y? And then you can draw -- he can't talk about his conclusions, and I won't let him talk about his assumptions, but you can, through argument, draw whatever inferences you want to draw. This is the first issue. Yes. But I need to see the stuff -- before I even know if that works, I need to see the materials.
MR. DRATEL: Sure.
MR. TURNER: Your Honor.
THE COURT: Yes.
MR. TURNER: I don't think the defense has the actual mises.org. The defense is referring to the defendant's own analysis.
THE COURT: I understand he has referred to it like that. I'm trying to get underneath that and to see if there is something factually that will work. So let me see what he's got and then we'll figure out if there is anything that we can do with it.
The conclusions of the analysis I'm not allowing in, but whether or not there is the data that he used to do the comparison, this witness used to do the comparison, whether or not that could be presented to him. Did you use this data? Yes. Did you compare it to this? Yes. That is something that I want to assess.
MR. TURNER: We would still be left with the authentication issue, your Honor. This witness does not have the necessary foundation to --
THE COURT: I believe that if he physically possessed the documents, then Mr. Dratel can resolve that by saying did you do anything to determine other than the fact that you printed these off the Internet. I mean, it is up to argument, the weight that the jury gives it. They are not coming in for the truth. They are not going to be -- let me just see what he's got. OK? We've got other issues to deal with. Let me deal with some other issues first. OK?
The other issue is Complaint Paragraph 22C. I have reviewed case law relating to the admissibility of complaints signed by government agents. I believe that Mr. Dratel is correct that that one paragraph can be put in. I didn't receive any letters from you folks. So it's Paragraph 22C.
Now, the way that that would be done would be stating: In September 2013, the government made the following statement, and the paragraph would be read in its entirety. But based upon the Ramirez case, in the Second Circuit 1990, as well as some certain other cases, that appears to be something which can be done.
Mr. Turner.
MR. TURNER: Your Honor, we haven't had a chance to look at that case. We ask for the opportunity to do so.
THE COURT: Did you find any other cases? You folks were tasked last night with coming up with any case law you felt was supportive of your respective positions?
MR. TURNER: That was considered hearsay. The problem is the defendant isn't even offering it for the truth. They are offering it to try to impeach him, essentially.
COURT CLERK: He offered them separately. He made a proffer. I agree with you, and I had considered whether or not this should be done in the context of the defense case. That is one possible issue.
However, Mr. Dratel did specifically recite the hearsay rules to get it in as an admission. In fact, he cited three of them, one of which I think is more applicable than the other two; that is the party admission.
MR. TURNER: But, your Honor, that principle applies when the party is trying to put that proposition in for the truth. What they're trying to do is say the government made an inaccurate statement. They are trying to sort of impeach this statement.
THE COURT: No. I think his theory, from his opening, which is why I've also considered the materiality of it and wondered whether this is a collateral issue solely for impeachment but then I recalled that in his opening Mr. Dratel, as I understand part of your point, it's that this website was alleged to have been making money hand over fist. So where is -- show me the money. Basically, where's the beef. And if the defendant wasn't caught with the beef, then that's a point Mr. Dratel wants to make, that that absence is an additional circumstantial fact supportive of identity.
I think that is the argument. So I think he wants it in for the truth. Am I wrong about that?
MR. DRATEL: No, your Honor. You are correct. It is an admission and it doesn't have to impeach, and the Court is correct with respect to the GAF case.
THE COURT: Yes, I have read the GAF case.
MR. DRATEL: It is really dispositive. It also says that a party -- and, also, the Court mentioned Ramirez, also, Warren, you know -- and I will just quote from it, where, quote, the government has indicated in a sworn affidavit to a judicial officer that it believes particular statements are trustworthy, close quote, the Court -- and then the quote continues -- may not sustain an objection to the subsequent introduction of those statements on grounds that they are hearsay.
THE COURT: Right.
MR. DRATEL: That is 22 --
THE COURT: Yes, I read the Warren case. I think that is a D.C. Circuit case. The GAF case had to do with a bill of particulars, but I think it is sufficiently close that the principle applies.
MR. DRATEL: Right. And I think, also, GAF also stands for the proposition that even if the party changes its strategy or its position in litigation, that prior position is admissible.
THE COURT: That was the situation in GAF where they had two different bill of particulars.
MR. TURNER: Your Honor, if I may?
THE COURT: Yes.
MR. TURNER: First of all, the government would like an opportunity to look at this law, and this is law that we haven't had an opportunity to see. It is not an urgent --
THE COURT: You were supposed to look at it last night. I did last night go over the things that were going on for this morning.
MR. TURNER: We did, your Honor, but we never received anything from the defense. We don't know what specific cases your Honor looked at. We would simply like an opportunity to take a look at those cases ourselves and address them.
I want to make clear, though, your Honor, the government is not changing its position. The amount of bitcoins we're talking about is still the same.
THE COURT: It is still 1,229,456?
MR. TURNER: It is slightly higher, but the point is the valuation --
THE COURT: That is actually stated here. That bitcoins had fluctuated greatly. That actually is why, in terms of completeness, I had suggested that Mr. Dratel would read the entirety of the paragraph.
MR. TURNER: Precisely. That is why this is going to cause juror confusion. The amount of bitcoins is not significantly changing --
THE COURT: If you folks can find cases contrary to -- I think Mr. Dratel has got his hands on the rights cases, which are the same ones I have looked at, with the addition of the Santos case, which is a case where the Second Circuit actually -- it was an old case. It was pre-rules. But then later on, in a later case, the Second Circuit ends up saying we want to reaffirm the holding in Santos. If you want to take a quick look?
But at this point, Mr. Dratel, if you wanted to use this for impeachment, you can use anything for impeachment. But in terms of reading it, we'll hold off for a little while. You can do that at any point in time. You can do it when the government rests, but I'm not at this point going to have a ruling stand yet that he is precluded from reading it, because I think the better reading is that as to this paragraph he can read it.
MR. TURNER: Your Honor, one more suggestion. We're going to have a witness toward the end of our case who is going to testify about the statistics, about the bitcoins that were seized from the defendant's computer, from the Silk Road server. If the defense wants to use it in the course of cross-examination to try and impeach the witness' statement or something like that, I think it would make a lot more sense then. All I'm saying is that there is no urgency now in case you --
THE COURT: The point is that I want to make sure that while the current witness is still on the stand Mr. Dratel has an opportunity to use this. The witness may have in fact read the Complaint in this action. If the witness, who has testified about the amount that he found in certain accounts was X, if this is of any value to impeachment, I don't know that it is, but I want to make sure that there is no ruling precluding the use of 22C from the Complaint for impeachment purposes.
Moreover, separately, and at another time, it is my inclination to allow it to be read in as a party admission. A party admission need not be an inconsistent statement to come in. But we don't have to -- I agree with you on the latter point that we don't have to face that issue until a little bit later. But I want to make sure Mr. Dratel understands he can use 22C.
MR. DRATEL: Thank you, your Honor.
THE COURT: All right. Now, the other issue is -- I'm waiting for the mises.org --
MR. DRATEL: I'm trying to look for them and engage in the discussion at the same time.
By the way, your Honor, yesterday I believe what he said was you did not ask for a letter from us, you had the cases, indicating the cases.
THE COURT: The last thing, while you are looking for the mises stuff -- let me just tell you while you are looking for it, what I am thinking of, Mr. Dratel, is literally taking the two factual pieces, the mises piece and the other piece, asking him have you looked at each of them. Not asking him about his conclusions. And if then you want to ask him did he notice the word ABC and it happens to match ABC, he can stay yes, but not ask him if he drew any conclusions about whether this guy was DPR. What you can then do is through argument draw whatever inferences you believe are appropriate. But it's the factual back and forth that I think could be appropriate while the speculative conclusions would not be.
MR. DRATEL: OK.
THE COURT: OK. That is what I am thinking. We'll see if the evidence would work.
MR. TURNER: Your Honor, again, the evidence is being offered that Anand Athavale posted these things, and all that would be relied upon would be a page that the agent --
THE COURT: You can go back and say -- I mean, I would expect Mr. Dratel would have no problem saying: Do you know for a fact who posted these?
MR. TURNER: Right.
THE COURT: And this guy can say: No. All I know is they were associated with this name. I didn't do any independent verification.
MR. TURNER: Then it should not come in. It is a threshold issue, your Honor --
THE COURT: No. Because I will tell you why it is relevant. It is relevant because during the course of the investigation there was an exercise that was done, and I'm not putting it in for the truth of whether these are from Anand, whatever his name was, or not, that there were certain materials -- they could have been from a trashcan -- compared to other materials. It was part of what he did. I'm not asking or confirming whether or not Anand was in fact the author of the mises piece at all. It is just that he did this analysis. He compared the two. And then we can figure out where to go.
But the fact of the comparison I don't believe is hearsay. I don't believe it's irrelevant because it's probative of identity, which is a material issue in dispute. And I believe that his exercise -- whether the exercise was based upon competent evidence or not is a different issue. It's not the pages which are being admitted for some sort of truth-finding exercise, it is the exercise.
MR. TURNER: It is not a hearsay issue, your Honor. I am not arguing it is a hearsay issue. It is an authenticity issue --
THE COURT: No. But the authenticity is that -- I mean, all I need these pages for, to come in for, the only purpose is that those are the pages he used. They're authentic pages which he used. Whether they are in fact authentic from mises or in fact authentically from a particular person is different from whether he in fact held them in his hands or looked at them on the screen and used them. If you have doubt that these are the pages he used, then we have an authenticity issue. If there is no doubt that these are the pages he used, it is not about authenticity of the pages, it's about authenticity of the underlying information.
MR. TURNER: The government, your Honor, so if you look at Vayner, the issue there was the document -- there has to be evidence the document is what it purported to be.
THE COURT: And that was a pause. What it purported to be were the pages this fellow used.
MR. TURNER: Right. In Vayner it was purported to be the Russian Facebook page of the defendant. OK? And the Court just didn't say, well, there are pages on the Internet and that is fine. The Court said that they're being offered as pages of this particular defendant and there has to be authentication.
If I may? Here, it's clear the defense is offering this as pages posted by Anand Athavale. So Vayner carries over. You can't simply have the agent say, well, I had his name Anand Athavale on it and, therefore, that is enough to authenticate it.
THE COURT: No. I think that the purpose in Facebook was to show that particular statements in Facebook were true and that were statements of the posting party. That's not part of this exercise.
MR. TURNER: It wasn't to show that they were true. It wasn't a hearsay issue, your Honor. It was an authentication issue.
THE COURT: Before they got to the hearsay issue.
MR. TURNER: The point is this exercise your Honor is referring to is only relevant insofar as they are trying to show an alternative perpetrator theory.
THE COURT: Yes.
MR. TURNER: The alternative perpetrator theory is there is this guy out there, Anand Athavale, and he posted all of these things on mises.org, and his language choices match up with Dread Pirate Roberts. Things like he spelled "a lot" a-l-o-t instead of with a space. It is actually quite silly when you look at it closely. In any event, in order to prove that theory, like your Honor explained yesterday, you have to have the chain of inferences laid out. You have to be able to offer the chain of inferences. Here it is a key inference or it is a key point along that chain of inference that the pages at mises that this Agent looked at were Anand Athavale's actual posts.
THE COURT: What I'm suggesting is he cannot testify and would not be allowed to testify that these were Anand Athavale's posts. All he can say is I found these -- as part of my investigation, I found these things on the Internet. I did the following comparison to things on Silk Road. Full stop.
MR. TURNER: And as long as there is absolutely no mention of Anand Athavale --
THE COURT: Not "no mention." He can look at the page and say this, but he can also say I have no idea whether it was him or not. I have no idea if John Doe posted these. All I know is that was the name.
MR. TURNER: But, your Honor, if that had been the way things go in Vayner, then the Court would have said, well, no, it is fine, just let it in and then the jury can be instructed that the agent has no way of authenticating this issue but it should go to the jury anyway. That is not how the Vayner Court applied the rule. It is a threshold issue.
THE COURT: I hear you. I am using it for a different purpose.
Let me see the information on both sides of this. I don't know if it works in the way that I'm suggesting.
MR. TURNER: And, again, we just stress that the proper way -- if the defense wants to establish this theory, the proper way to do it is actually put the mises.org posts before the jury, properly authenticate them. Then they can draw the inferences. They don't need the agent to do so. The agent's opinion --
THE COURT: He is not going to draw -- I am not going to let him draw his conclusions.
MR. TURNER: Then there is really no need for the agent to testify about it.
THE COURT: Here's the point. Part of his investigation was looking at a variety of information, and there were a variety of facts which indicated circumstantially and built a case. These are among the facts that eventually circumstantially fell off. The jury might credit them more than he credited them, but it is up to them to credit them. And --
MR. TURNER: This is exactly what the Johnson line of cases talks about, that sort of the investigative background, the story of how the investigation proceeded, is not relevant and that --
THE COURT: But that was for the investigative background to show -- in the Johnson case, it was to show really sort of important things coming in that were hearsay as background. And the Court said no, no, no, no, no, you can't wedge in as background these clearly disputed issues of fact. That's the Johnson case.
That's not this. Let me see what Mr. Dratel has. This may or may not go anywhere, but I do want to see what the lay of the land is.
MR. TURNER: OK. But just to finish the thought, I think the Court in Johnson emphasized the dangers of introducing background evidence like this, because it can give the impression the agent found this important, the agent, you know, had suspicions about this evidence at the time. That is why the Court said it's generally not relevant, and --
THE COURT: I hear your point.
Mr. Dratel, do you have anything to hand over?
MR. DRATEL: Yes, I do, your Honor. Thanks. Some of them are not consecutive so I've -- well, there are a couple -- I've categoried them --
THE COURT: Can I have the prosecution come up here as well? Walk me through these.
MR. DRATEL: Oh, sure. This is all from the 3500, obviously. This is from emails, and then the top part is a profile of Mr. Athavale.
MR. TURNER: Can we be clear when you are talking about emails?
MR. DRATEL: Emails from the agent. This is an email from the agent or a report, really, from the agent. And it lists first the usernames -- I mean the IP addresses, usernames. And then on this page it starts with the writing analysis that he has done.
There is an earlier -- there is also a report that he has written, which is another part, which is essentially the same but it just appears in a different part of the 3500, where he talks about there is an extensive analysis of distinct writing styles, sayings, spelling mistakes, clichés, and specific nuances which have led to determining -- and then it is redacted -- it is a highly likely target. In fact, four pages are redacted. I think it is what is in this report and in other parts of the 3500. I don't really understand the redactions. There are a lot of redactions in the 3500 of the agent. For a period, I assume, that they had things that were properly redacted. I think this is not properly redacted, but I imagine that we have it in this report so I'm not sure that there is an issue.
But, anyway, then he goes on to list them in about six pages worth. And he also talks at another point about -- and I'm not sure if it is in this one. Let me just see if it is in this part, where he talks about having sent it to a college professor.
MR. TURNER: Is it irrelevant?
MR. DRATEL: The fact that he sent it is not a conclusion. If the government wants to bring out a conclusion, that's fine.
(Pause)
THE COURT: Do you have the -- what you have here -- and I'm focused on the "boths," do you have the two things that were being looked at that resulted in that determination?
MR. DRATEL: No, I don't have the mises posts because it is just digested here. This is the sort of longer version of that in terms of it has the quotes pulled out, to a certain extent, on what he based it on. There is another section in this part that goes into it in greater detail in terms of the analysis.
MR. TURNER: Your Honor, what's being done here is we are talking about thousands of posts. Instead of trying to get a competent representation of those posts, he is just drawing on this agent's memories, this agent's perceptions. If it is going to be done right, the right way to do it is to have the actual documents themselves. This is akin to us drawing somebody off the streets and saying, hey, do you remember looking at a bunch of posts on a website and were there similarities between the posts and what you saw on the Web page. That is an improper way to prove our case. It should be an improper way for the defense to prove their case.
THE COURT: The difference is this is an agent who is not pulled off the street who was tasked with being careful and accurate within the constraints.
Here's what we're going to do. We're going to -- let me just sort of see if I can do a series of questions.
(Pause)
THE COURT: What are these things called, these posts?
MR. TURNER: It is a report of email. I can go back and find the first page.
THE COURT: What was he comparing it to, the mises compared to?
MR. TURNER: To DPR posts.
THE COURT: On what?
MR. TURNER: On the forum -- also, everything he gets his hands on from DPR.
THE COURT: OK. This is what I am going to allow. I'm going to allow questions along the following lines.
MR. TURNER: Should I take notes?
THE COURT: No, I'm going to hand you my page.
Did you look at the posts from the mises.org? Whose name appeared? Do you know if in fact it was this person? He will say no. Did you confirm that it was this person? So it is clear he did not confirm. Did you compare what you found from the mises' posts to anything else, in fact, to the DPR forum? Yes. Did you look at words? Yes. Did you make certain factual determinations as to the appearance of words in certain places? Yes.
What I do not want, and will not allow, is his conclusion here where he talks in the first one: "Both use the same writing style." OK? He can't say that.
MR. DRATEL: Right.
THE COURT: But he can say both spell the word "realtime" with a hyphen. That is an English language comparison. The government can then go back on cross and unsettle, undo the mises posts.
MR. TURNER: Your Honor, I just want to make sure we have a clear record. When your Honor says the agent can be asked did you do anything to confirm this came from this person, that goes to the reliability of the document. And that's the whole point of the rules of evidence, that documents that aren't proven to be reliable should not come in in the first place. That is the very reason -- the same thing with the LinkedIn pages yesterday. If they cannot be shown to come under a hearsay exception, they can't just go to the jury with the instruction that they can't be -- that the agent didn't do anything --
THE COURT: Well, what you can do on cross-examination is bring out that he has no idea if this was from this person or another person or the man on the moon. But I am going to allow this. I understand the government's position is that they oppose vigorously.
MR. DRATEL: Your Honor, just two things. One is with respect to instead of asking him a sort of imperative question, "Did you confirm," can I ask him "Did you do anything to confirm?" because I don't know the answer?
THE COURT: Fine.
MR. DRATEL: Can I say, "Did you send all of this material to a college professor for analysis?" Just that question.
MR. TURNER: We argue that it is irrelevant to anything.
THE COURT: Well, it is not irrelevant.
Yes.
MR. DRATEL: Thank you.
THE COURT: All right. The last thing we'll take up at another time is how to deal with the strikes. I don't want to take it up now.
Do we have a full jury, Joe?
COURT CLERK: We do.
THE COURT: We are going to proceed. All right?
MR. DRATEL: Your Honor, the government has provided me a proposed instruction which I have some problems with, so we'll try to work on that.
THE COURT: All right. Thank you.
Let's bring out the jury. Get Mr. Der-Yeghiayan on the stand.
MR. TURNER: Are we going to redirect, your Honor, or back to cross?
THE COURT: We are going to go to redirect and then go back to cross. But I will allow Mr. Dratel, if necessary, to go beyond the scope of the redirect to correct my rulings from yesterday.
MR. DRATEL: Thank you, your Honor.
(Pause)
MR. DRATEL: Your Honor, while we are waiting, could we just do a quick sidebar?
THE COURT: They will be horrified if the jury walks out and see us at the sidebar. It will be like, you know, Groundhog Day.
COURT CLERK: All rise as the jury enters.
(Continued on next page)
(Jury present)
THE COURT: All right. Ladies and gentlemen, as we get to our seats, let's all be seated.
And we are still on the redirect of Mr. Der-Yeghiayan.
And you remain under oath, sir. Do you understand that?
JARED DER-YEGHIAYAN: I do. Thank you. JARED DER-YEGHIAYAN, Resumed, and testified further as follows:
THE COURT: Thank you.
You may proceed, Mr. Turner.
MR. TURNER: Thank you, your Honor.