7.Dylan Critten — Direct/Cross
231 linesDIRECT EXAMINATION BY MR. HOWARD:
MR. HOWARD: Good afternoon, Special Agent Critten.
DYLAN CRITTEN: Good afternoon.
MR. HOWARD: Who do you work for?
DYLAN CRITTEN: I work for Homeland Security Investigations.
MR. HOWARD: And how long have you worked there?
DYLAN CRITTEN: A little over five years.
MR. HOWARD: And what is your position there?
DYLAN CRITTEN: I'm a special agent assigned with Criminal Investigations.
MR. HOWARD: And where are you based?
DYLAN CRITTEN: I'm based in San Francisco, California.
MR. HOWARD: Are you assigned to a particular squad?
DYLAN CRITTEN: I'm assigned to a Document and Benefit Fraud Task Force.
MR. HOWARD: And what are your responsibilities and duties on that Task Force?
DYLAN CRITTEN: We investigate criminal activity related to counterfeit documents, identity theft and other general fraud.
MR. HOWARD: Your Honor, may I approach the witness?
THE COURT: You may.
BY MR. HOWARD:
MR. HOWARD: I have just handed you what's been marked for identification purposes as Government Exhibit 400. Do you recognize what this is?
DYLAN CRITTEN: I do.
MR. HOWARD: And what is this?
DYLAN CRITTEN: These are nine counterfeit driver license identity documents from six different states and three different countries.
MR. HOWARD: And how are you familiar with them?
DYLAN CRITTEN: I'm familiar with these because they were contained in a package that was shipped from Vancouver, Canada, into the United States, and it was intercepted at a mail facility in San Francisco and forwarded to Investigations.
MR. HOWARD: Who is depicted on the phase of the IDs?
DYLAN CRITTEN: There are two different -- what I believe to be two different photos on these, one bearded and one non-bearded, but I believe that individual to be Mr. Ulbricht.
MR. HOWARD: The government offers Government Exhibit 400.
MR. DRATEL: No objection, your Honor.
THE COURT: Received.
(Government's Exhibit 400 received in evidence)
MR. HOWARD: Your Honor, may I approach the witness?
THE COURT: You may.
MR. HOWARD: May I publish this exhibit to the jury?
THE COURT: You may.
BY MR. HOWARD:
MR. HOWARD: So when, approximately, were these IDs seized by CBP?
DYLAN CRITTEN: Approximately in the neighborhood of July 10th of 2013.
MR. HOWARD: And what, if anything, did you do to investigate these identification documents once you received them?
DYLAN CRITTEN: I ran basic records checks and a few other checks, and myself and another agent went to the residence where they were postmarked to.
MR. HOWARD: What did you discover after running the record checks you just described?
DYLAN CRITTEN: Each of the at least as far as the six state identification documents were negative. They did not come back to a valid ID that was issued by any of those six states. I ran record checks on each of the individuals, which all came back negative for any kind of identity.
MR. HOWARD: Could you please flip in your binder to what has been marked for identification purposes as Government Exhibit 402, please.
Do you recognize what this is?
DYLAN CRITTEN: Yes. This is a photo of those same nine documents.
MR. HOWARD: Did you take this photograph?
DYLAN CRITTEN: I did not. Customs and Border Protection took this photo and forwarded it to us from the mail facility.
MR. HOWARD: Does this photograph fairly and accurately depict the front of these identification documents?
DYLAN CRITTEN: It does.
MR. HOWARD: The government offers Government Exhibit 402.
MR. DRATEL: No objection.
THE COURT: Received.
(Government's Exhibit 402 received in evidence)
MR. HOWARD: Now, Ms. Rosen, could you please publish Government Exhibit 402.
MR. HOWARD: Special Agent Critten, could you please indicate where these driver licenses appear to be issued from?
DYLAN CRITTEN: They're purported to be issued from six different states, including New York State, Colorado, Florida, California, Texas, and South Carolina.
MR. HOWARD: And how are the names on these IDs, are they the same name or different names?
DYLAN CRITTEN: Each of the nine identification documents has nine individual names. So there are nine separate names.
MR. HOWARD: Is Ross Ulbricht's name on any of those identification documents?
DYLAN CRITTEN: Not his name, no.
MR. HOWARD: How about the date of birth, how does that compare on these nine documents?
DYLAN CRITTEN: The date of birth is the exact -- I believe to be the exact same as Mr. Ulbricht.
MR. HOWARD: What is the date of birth?
DYLAN CRITTEN: 3/27 of 1984 on all nine documents.
MR. HOWARD: Would you please flip in your binder to what has been marked for identification purposes as Government Exhibit 401.
Do you recognize what this is?
DYLAN CRITTEN: I do. This is a picture of the postal envelope that was postmarked and said to be delivered to a San Francisco, California address.
MR. HOWARD: And what was contained in that package?
DYLAN CRITTEN: The nine counterfeit identity document driver licenses.
MR. HOWARD: Did you take this photograph?
DYLAN CRITTEN: I did not. Customs and Border Protection did.
MR. HOWARD: Does this photograph fairly and accurately depict the packaging that contained those IDs?
DYLAN CRITTEN: It does.
MR. HOWARD: The government offers Government Exhibit 401.
MR. DRATEL: No objection.
THE COURT: Received.
(Government's Exhibit 401 received in evidence)
MR. HOWARD: Ms. Rosen, could you please publish it.
MR. HOWARD: Special Agent Critten, what is the name of the individual who is listed as to receive the package?
DYLAN CRITTEN: The package was addressed to Andrew Ford.
MR. HOWARD: And where is the address -- what is the address that is listed on the packaging?
DYLAN CRITTEN: The address for delivery is 2260 15th Avenue in San Francisco, California.
MR. HOWARD: Are you familiar with that address in San Francisco?
DYLAN CRITTEN: I am. Myself and another agent visited that address soon after.
MR. HOWARD: And when was that, approximately?
DYLAN CRITTEN: Approximately July 26th of 2013.
MR. HOWARD: And how many -- you said you went with one other agent to that location?
DYLAN CRITTEN: Yes.
MR. HOWARD: What happened after you arrived at the location?
DYLAN CRITTEN: Myself and another agent arrived at the location. We went directly to the door. As I approached the door to knock on it, I saw an individual in the hallway who I immediately recognized from the photographs on the fake IDs. It was a big -- the front door was a big glass door, and so as I knocked on the door that individual was already approaching the door to answer the door.
MR. HOWARD: Do you see that individual in the courtroom today?
DYLAN CRITTEN: Yes, I do.
MR. HOWARD: And could you please point him out and indicate what he's wearing?
DYLAN CRITTEN: He's wearing a blue collared shirt.
MR. HOWARD: And which table is he sitting at?
DYLAN CRITTEN: At the second table.
MR. HOWARD: Could the record please reflect that the witness has identified the defendant, please?
THE COURT: So reflected.
BY MR. HOWARD:
MR. HOWARD: So what happened after you observed the defendant on the other side of the glass door?
DYLAN CRITTEN: He came to the door. And I immediately, myself and the agent that I was with, we showed Mr. Ulbricht our government-issued credentials and introduced ourselves as government agents who work for Homeland Security Investigations.
MR. HOWARD: And what happened after you identified yourselves?
DYLAN CRITTEN: I asked Mr. Ulbricht if he would be willing to speak to us regarding our investigations. He responded in the affirmative, and he stepped out onto the front porch to speak with us.
MR. HOWARD: And what was the first thing that happened after he stepped out onto the front porch?
DYLAN CRITTEN: So as he stepped out, the first thing I showed him was an 8-by-10 photo of one of the documents. It was a photo of the California driver license document. And --
MR. HOWARD: And how did he react? What could you observe about his demeanor when he observed the documents?
MR. DRATEL: Objection.
THE COURT: Why don't you restate that so it is one question.
MR. HOWARD: What were you able to observe about the defendant after you provided him -- you showed him the photograph of the ID document?
DYLAN CRITTEN: I observed that he became visibly nervous.
MR. DRATEL: Objection.
THE COURT: Overruled.
MR. DRATEL: I move to strike.
THE COURT: Denied.
MR. HOWARD: And what happened next?
DYLAN CRITTEN: So we directly asked him if he had made a purchase of fake identity documents. And we also let him know that we were not there to investigate him but we wanted to solicit his support in our investigation of a fake document vendor which could have sent the documents from Canada.
MR. HOWARD: Was that the purpose of your investigation on that day?
DYLAN CRITTEN: It was.
MR. HOWARD: At that time were you familiar with Silk Road?
MR. HOWARD: So what happened after you informed the defendant that you weren't there to investigate him for something?
DYLAN CRITTEN: After that he was willing to speak to us and he made general statements, but he was unwilling to admit whether or not he had made any sort of purchase of fake identity documents. He didn't want to incriminate himself.
MR. HOWARD: So what happened after that? After he indicated that he didn't want to make any statements about himself, what did you do?
DYLAN CRITTEN: We explained that our purpose was not only to investigate the fraudulent document vendor but also to make sure that the recipient -- in this case the recipient of nine fake IDs -- was not a fugitive. There was nothing else, nothing further. So we asked that we could identify him and make sure he was not a fugitive before we -- before we departed the location.
MR. HOWARD: We'll circle back to that later.
MR. HOWARD: But did you have any discussions about where the IDs could have come from?
DYLAN CRITTEN: Yes. At a later point in time Mr. Ulbricht made a statement that hypothetically an individual could purchase anything they wanted -- fake IDs, drugs, or generally anything illegal on the Tor browser, using the Tor browser to access the Silk Road website.
MR. HOWARD: At the time had you heard of Silk Road before?
DYLAN CRITTEN: No, I had not.
MR. HOWARD: At the time had you heard of the Tor browser before?
DYLAN CRITTEN: I had not.
MR. HOWARD: Now, how did you come to learn the defendant's name?
DYLAN CRITTEN: Mr. Ulbricht went back into the house and retrieved his -- what I believe to be his legitimate Texas driver license and then returned to the front porch and showed it to me.
MR. HOWARD: And did you have any discussions with the defendant about his living arrangements at the time?
DYLAN CRITTEN: Yes. So the name on the identity document that Mr. Ulbricht gave us was his true name, Ross Ulbricht. And we explained to him that we were going to have to speak to his roommates regarding the situation because we wanted to get a bigger picture of what was going on. Since he was unwilling to answer any questions regarding why he might have purchased the documents, we would need to do further inquiry and speak to the roommates. It was at that time that he informed us that that might be an issue because if we asked his roommates about Ross, they wouldn't know what we were talking about because his roommates only knew him by his name Josh.
MR. HOWARD: Did you have any discussions with the defendant about how long he had been living there at that location?
DYLAN CRITTEN: Maybe not the exact time he had been living there, but he said -- I don't recall the specific amount of time, but he said he had found the place on Craigslist and he had sublet it from two individuals who were traveling musicians.
MR. HOWARD: Did he discuss the manner in which he paid for the rental?
DYLAN CRITTEN: He paid them a thousand dollars each month using cash.
MR. HOWARD: And he lived under the fake name Josh?
DYLAN CRITTEN: Yes.
MR. HOWARD: No further questions.
THE COURT: All right. Let's take our mid-afternoon break, and then we'll come back and Mr. Dratel can commence his cross-examination of this witness.
I want to remind you folks again -- and I know I say this all the time, but as the days go on I want to make sure you don't lapse into it -- not to talk to each other or anybody else about the case. Thank you.
COURT CLERK: All rise as the jury leaves.
(Continued on next page)
(Jury not present)
THE COURT: You can step down and take a break as well.
DYLAN CRITTEN: Thank you, your Honor.
(Witness not present)
THE COURT: All right. Ladies and gentlemen, let's take our own break. I've got something that I need to do in the other room.
Is there anything that we need to do before we resume? Normally, I would ask you folks if there was anything you wanted to raise. If there is, then I will come back out before the jury is ready.
MR. TURNER: Not from the government, your Honor.
MR. DRATEL: I may, your Honor, with respect to some of the cross.
THE COURT: All right. So I will have my deputy check with you, Mr. Dratel, and so we will start a couple of minutes early. We will take a brief break right now. Thank you.
COURT CLERK: All rise.
(Recess)
(Continued on next page)
(In open court; jury not present)
THE COURT: Let's all be seated.
Mr. Dratel.
MR. DRATEL: Yes, your Honor. With respect to cross-examination of Agent Alford, I'll just start from the end. With respect to the document that I was cross-examining him about, which was a government exhibit and that was put in by the government to suggest that those were accurate reflections of login times, and my cross was designed to show that those are not necessarily accurate reflections of login times and it was directly related to the subject of his direct examination and the objection was sustained.
With respect to some other aspects, the question of the letter from Senator Schumer and the whole inception of the investigation and its length and its ultimate conclusion are bias issues, whether it's for this witness or the investigation as a whole, those are clear bias issues. And again, objections were sustained. And there's a whole series of questions that are relevant to that, in addition to the scope of the investigation as well and what was going on with the investigation.
The bitcoin aspect of it was part of his investigation of Mr. Ulbricht and it goes hand-in-hand with all of the other aspects of it that we talked about earlier. And the whole point about the Silk Road servers, which was sustained as well, is also related to the question of bias and the way the investigation unfolded and ultimately what happened with it.
THE COURT: Thank you.
Mr. Turner.
MR. TURNER: Your Honor, on the IP logs, so those were admitted pursuant to a stipulation between the parties. It says it's a true and accurate copy of subscriber information and the login times. In terms of whether the methods that Google uses to produce those records are reliable, that's beyond this witness' ken. They can call a witness from Google, I suppose, to call that into question.
I think the defendant's mistaken to believe that every time there's a login into an email account there's necessarily going to be an email reflected in that account. You can login and check your email and not actually send an email, and Google can log that information, so I don't think it really shows anything in any event.
The bias, I mean, the question is how is this witness biased against the defendant because of the fact that the investigation of Silk Road started by the federal government generally -- I'm not saying this is true, but this was the allegation -- started because of a letter submitted by Chuck Schumer. The connection isn't there.
Silk Road servers, the witness testified about nothing related to evidence from the Silk Road servers during his direct and the same with the bitcoins.
MR. DRATEL: Also, your Honor, I left out one thing also with respect to the competition among the agencies involved: This is a witness who in his 3500 material said there has been a lot of interagency dust-ups and big case/big problems. He complained about the FBI not sharing information. There was an issue about him not getting to sign the criminal complaint and it had to be explained to him that it was not a slap in the face but that the FBI was taking control; the question of what would happen to the bitcoins; and the question of people getting credit for other people's work. And why is that relevant?
It's relevant for the whole reason is this: Senator Schumer and another senator issued a public letter that they want Silk Road investigated and taken down. That puts pressure on law enforcement to do it. It makes it a high priority investigation. It makes it something that they want to do as quickly as possible; yet two and-a-half years later almost, no -- yes, almost two and-a-half years later Silk Road is still operating. It's operating at a time which for three months the government can pull the plug on the server at any moment. There is tremendous motivation and pressure to find a suspect as quickly as possible and arrest them regardless of the merits.
THE COURT: I think you folks have made your record. I think, Mr. Dratel, whether you have a theory of the case is a different issue as to whether or not there is something that is within the scope of the direct for a particular witness.
What I hear in a lot of what you are attempting to do is a theory of the case, and there are certain witnesses where there may be areas opened up and there may be certain witnesses where it's not opened up, and we will proceed with each witness and each question as it comes.
MR. DRATEL: Just one. The only way I can get my theory in is through witnesses. It's in this witness' knowledge and it's biased.
THE COURT: You and I disagree. I think that you've got a view of the rules of evidence that is, frankly, rather extraordinary for a person who is I know as intellectual as you. I can't decide whether or not you actually believe that you're right or whether or not you are just taking the position as a zealous advocate. In either event, it is my job to apply the rules.
I did, in fact, make an error in one of my rulings in the last session and that was to allow the witness, Mr. Alford, to testify that at one point in time he had thought there had been an original DPR. That was actually an error. I thought it was going to connect up to something. It did not. We'll have to decide what to do with that at the appropriate time.
I believe the jury is ready for us so let's go ahead.
MR. DRATEL: There's one factual thing I need to correct with respect to what Mr. Turner said about Google. He misses the point entirely, which is not the fact that there is -- it's the fact that there are gaps but there are emails in between those gaps which shows that these records don't necessarily reflect accurately when someone's logged onto their Google account.
THE COURT: I think the point about Google being the appropriate witness for that testimony is perhaps apposite to that as well.
MR. DRATEL: But it's apparent from the documents themselves.
THE COURT: Then you don't need the witness.
Go ahead and bring out the jury. Let's get the witness back on the stand.
Who does the government have next on-deck?
MR. TURNER: Michael Duch.
THE COURT: Thank you.
(Continued on next page)
(In open court; jury present)
THE COURT: Mr. Dratel, you may proceed with cross-examination.
MR. DRATEL: Thank you, your Honor.
CROSS-EXAMINATION BY MR. DRATEL:
MR. DRATEL: Agent Critten, with respect to Government Exhibit 401, which was the shot of the envelope, right, the photo of the envelope?
DYLAN CRITTEN: Yes.
MR. DRATEL: And that showed that the return address on the package was Vancouver in Canada, is that correct?
DYLAN CRITTEN: The "from," yes.
MR. DRATEL: And you said when you approached Mr. Ulbricht, he agreed to speak to the agent -- to you, right?
DYLAN CRITTEN: Yes.
MR. DRATEL: He didn't have to speak to you, right? You didn't have a subpoena?
DYLAN CRITTEN: No. It was completely voluntary.
MR. DRATEL: And the interview lasted about what? Ten minutes would you say?
DYLAN CRITTEN: Approximately, yes.
MR. DRATEL: Now, he gave you, Mr. Ulbricht produced for you his Texas driver's license, correct?
DYLAN CRITTEN: Yes.
MR. DRATEL: And as far as you could tell, that was an authentic driver's license?
DYLAN CRITTEN: Yeah, I did a record check before I left the premises and it was verified through both the systems and the photo.
MR. DRATEL: And you said that Mr. Ulbricht told you that he had found the apartment that he was in on craigslist, right?
DYLAN CRITTEN: Yes. It was a house.
MR. DRATEL: A house, but his room, or wherever he resided?
DYLAN CRITTEN: Correct.
MR. DRATEL: There were two other tenants aside from him?
DYLAN CRITTEN: That I learned of; yes.
MR. DRATEL: And he told you that they all knew him by the name Josh, right?
DYLAN CRITTEN: Yes.
MR. DRATEL: And he said I think that the rent was paid $1,000 a month in cash?
DYLAN CRITTEN: Yes.
MR. DRATEL: Now, he also told you that he was moving within a couple of weeks, right?
DYLAN CRITTEN: He did.
MR. DRATEL: And he told you he was a currency trader, correct?
DYLAN CRITTEN: He did.
MR. DRATEL: Now, when you explained to Mr. Ulbricht that you weren't there to arrest him but were looking to investigate the sources of and vendors for fake identification documents, you told him that he could speak in a hypothetical, correct?
DYLAN CRITTEN: I told him if you felt more comfortable, he could speak in a hypothetical; yes.
MR. DRATEL: So that's when he told you hypothetically someone can go on to the Tor browser and to the Silk Road site, correct?
DYLAN CRITTEN: Yes.
MR. DRATEL: And you say you hadn't heard of Silk Road before then?
DYLAN CRITTEN: Not before then, no.
MR. DRATEL: So there was nothing from the packaging or anything else that would suggest Silk Road?
DYLAN CRITTEN: Not at all.
MR. DRATEL: Now, Mr. Ulbricht also gave you an email address, correct?
DYLAN CRITTEN: He did.
MR. DRATEL: And it was fractalform@tormail.org, right?
DYLAN CRITTEN: Correct.
MR. DRATEL: And you replied "very anonymous," right?
DYLAN CRITTEN: I don't recall replying.
MR. DRATEL: And you also did a criminal history check, correct?
DYLAN CRITTEN: I did.
MR. DRATEL: And that came back with nothing for Mr. Ulbricht, right?
MR. HOWARD: Objection.
THE COURT: Sustained.
MR. DRATEL: You entered the information in the TECS system from your interview, correct?
DYLAN CRITTEN: I entered my report into the TECS system, yes.
MR. DRATEL: And that would make it accessible to law enforcement around the country if they were looking for something about Mr. Ulbricht?
DYLAN CRITTEN: Yes.
MR. DRATEL: I have nothing further. Thank you.
THE COURT: Mr. Howard, anything further from you?
MR. HOWARD: Nothing from the government, your Honor.
THE COURT: Thank you. You may step down, sir.
(Witness excused)
THE COURT: Would the government like to call its next witness?