5.Chat Evidence, Mistrial Denial, and Jury-Charge Matters
33 linesTHE COURT: Now, Mr. Howard, it may make sense to -- do you want to have the witness answer a question on that piece because we are going to have to break for lunch?
MR. HOWARD: I think it would make sense for us to just recap that to start the next. It ties into the subsequent portion. So maybe you should just break here.
THE COURT: All right. We'll break.
Ladies and gentlemen, we are going to break for lunch. I want to remind you not to talk to each other or anybody else about this case or anything having to do with this case.
And we'll pick up again at 2 o'clock. Thank you very much.
COURT CLERK: All rise as the jury leaves.
THE COURT: (To the witness) You can step out as well. Thank you.
(Continued on next page)
(Jury and witness not present)
THE COURT: All right, ladies and gentlemen. Let's all be seated.
I've got a couple of things. Let me just talk about the last series of exhibits, which were Government Exhibits 1000, 1001, 1006, 1002. It is the series relating to the chats between this witness, Mr. Bates, and Mr. Ulbricht. I've overruled defense objections and I just want to state why. If there were other government exhibits in that series, I mean to include them in this.
In terms of the Vayner objection, this witness has sufficiently authenticated these chats. And in terms of hearsay, they're either -- they are of two types of content. Either it is not for the truth, or to the extent there are pieces for the truth, they are admissions by Mr. Ulbricht. But, for instance, whether or not, in 1006, Bates went to the bathroom is not for the truth, but there are portions which may be for the truth in terms of some of the pieces that Mr. Ulbricht stated.
That's what I wanted to raise. Mr. Dratel, you wanted to make a record on some of the testimony that you wanted to elicit from Mr. Kiernan?
MR. DRATEL: Yes, your Honor.
He conducted an exercise -- really, an experiment -- that was designed to allow, which he did in the beginning of his testimony, which was predicate to all the Tor chats, which was that by setting up Tor chat and then creating some chats, that the person operating the computer would be "myself" on the chats. The underlying program that's used for that -- and how it's composed -- is essential to that experiment.
You can't have an experiment where you have different elements on each side of the experiment and have it be valid. And I was not allowed to get into that. It is directly relevant to his direct. I can't immunize it just by not asking it when it is an implicit and a central part of what he did. You can't say, ah, I'm running an experiment, you know, on a substance and then have a different substance. You can't have a gas mileage experiment with cars and you use two different types of gasoline. That's what I was getting at. And I couldn't do it. And I am moving for a mistrial on that basis.
And I'm also moving for a mistrial because the Court then said in front of the jury I can call a witness. It's not my burden. I have no burden. You put the burden on me.
THE COURT: The motion for a mistrial is denied. I am entirely comfortable with all of my limitations in terms of what was within the scope of direct and what was outside of the scope of the direct.
I believe that in the context of what was occurring, my comment was entirely appropriate. However, I will instruct the jury that the defendant does not have a burden.
My point for you, Mr. Dratel, is to the extent the defendant would like to put on evidence, which is entirely his choice, ultimately, that he would like to present, he can do at that, or not. It will be up to the government to put together the facts which the jury will use to determine whether or not the government has carried its burden of proof as to each of the charged counts.
Mr. Howard, would you like to respond at all to -- or, actually, it was Mr. Turner? Which one of you was it? It was Mr. Howard.
MR. HOWARD: It was me, your Honor.
And I do believe the defendant was -- I'm sorry, the defense counsel did ask some questions regarding about whether the witness knew for sure about whether the burdens were correct. So that testimony was elicited in some form.
THE COURT: That's my point about how when it was within the scope, I allowed it. When it was outside of the scope, I disallowed it.
All right. Is there anything further that people would like to say on any topic before we break for lunch? I do have a matter in here at 1. It is a criminal matter. So I'll need a little bit of space at the first two spots.
Is there anything that anybody else would like?
MR. TURNER: Not from the government, your Honor.
THE COURT: Actually, I do have one more thing.
Mr. Dratel, anything else?
MR. DRATEL: No, your Honor.
THE COURT: All right. One thing I wanted to raise. I want to have a copy of the jury instructions hopefully either later today or tomorrow morning. In the proposed verdict form -- and we're going to have to go through the instructions, obviously, at another time but I want you folks to have it. For the continuing criminal enterprise, I want you folks to take a look at 848, the statutory provision, and at the Alleyne case and determine whether or not there are additional issues which should be in your view either contained or not contained on the verdict form.
MR. TURNER: I just didn't catch that, your Honor.
THE COURT: On the continuing criminal enterprise.
MR. TURNER: The name of the case.
THE COURT: Alleyne, A-l-l-e-y-n-e. It holds that if there is going to be a statutory minimum imposed by virtue of a statutory requirement, the jury must determine beyond a reasonable doubt that that requirement has been met.
So to the extent that there are provisions of 848 that require supervisory findings and/or other findings, I believe those need to be called out, but they are not on the proposed verdict form. So I am soliciting people's views.
MR. HOWARD: We will look into that, your Honor.
COURT CLERK: All rise.
(Luncheon recess)
(Continued on next page)
A F T E R N O O N S E S S I O N 2:05 p.m. RICHARD BATES, Resumed, and testified further as follows:
(Jury not present)
THE COURT: All right. Let's bring out the jury.
COURT CLERK: All rise as the jury enters.
(Jury present)
THE COURT: All right. Ladies and gentlemen, let's all be seated.
And before we get going, I wanted to go back over one matter with you. As you heard me say at the beginning of the case -- and I want to repeat now -- the defendant in a criminal case does not bear the burden of proof. He is not required to call any witnesses. The government bears the burden of proof in a criminal case from the beginning and all the way through.
So whether or not the defendant -- he is not required to call any witnesses, and any comments of mine that may have suggested that he should or ought to, you should certainly disregard. The defendant does not bear any burden of proof.
All right. Thank you.
Mr. Howard, you may proceed, sir.
MR. HOWARD: Thank you, your Honor.
BY MR. HOWARD: