9.Michael Duch — Cross (Part 2)
244 linesCROSS-EXAMINATION BY MR. DRATEL:
MR. DRATEL: Good afternoon, Mr. Duch.
MICHAEL DUCH: Good afternoon.
MR. DRATEL: Now, you testified on direct about your deal with the government, correct?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: And you said that under the charges that have been filed against you by the government you face a penalty possibly of anywhere from 5 to 40 years, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: And it is a mandatory minimum of five years unless you get the letter from the government to the Judge about your assistance, your substantial assistance, correct?
MICHAEL DUCH: That is correct.
MR. DRATEL: Substantial assistance to the government, right?
MICHAEL DUCH: That is correct.
MR. DRATEL: Now, you have a prior felony conviction, correct?
MICHAEL DUCH: Yes, I do.
MR. DRATEL: Before the one that you pleaded guilty to regarding the conduct you have talked about today, right?
MICHAEL DUCH: Yes, I do.
MR. DRATEL: And you were aware that if the government chose to file what's called a prior felony information against you, that would double the mandatory minimum and make the maximum penalty life in prison, right?
MICHAEL DUCH: I don't know whether it would be life in prison or not. I don't know about that.
MR. DRATEL: Well, you were informed that it would double the mandatory minimum, correct?
MICHAEL DUCH: Correct.
MR. DRATEL: And that it would increase the maximum, correct?
MICHAEL DUCH: I'm not aware whether it would increase the maximum or not.
MR. DRATEL: And part of your agreement with the government is that they are not going to file that prior felony information against you, right?
MICHAEL DUCH: There is no agreement on whether they'll file a prior felony information or not.
MR. DRATEL: You understand they're not going to do that, correct?
MICHAEL DUCH: I --
MR. DRATEL: Whether it is in writing or not, you are not expecting them to go and file a prior felony information if they give you a 5K letter and then increase your mandatory minimum to possibly 10 years, right? You don't expect them to do that?
MICHAEL DUCH: My expectation is that they wouldn't do that but there is no agreement stating that.
MR. DRATEL: It is something they are holding over your head, correct?
MICHAEL DUCH: It's never been mentioned.
MR. DRATEL: It's never been mentioned.
Well, I want to show you what's been marked as 3514-2.
Let me start. You've met with the government in preparation, right, for your testimony, correct?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: That goes all the way back to even -- withdrawn.
When you first got arrested you agreed to cooperate, correct?
MICHAEL DUCH: That's correct.
MR. DRATEL: You signed a consent form for searches, right?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: You made tapes of your supplier, right, trying to incriminate him, correct?
MICHAEL DUCH: I believe there was an audio recording made.
MR. DRATEL: Well, you made it, right?
MICHAEL DUCH: I was a participant in making the recording, that's correct.
MR. DRATEL: By the way, when you're doing -- by October 2013, you are doing 6 to 700 bags of heroin a week, right? That's what you said.
MICHAEL DUCH: Not in October of 2013, no.
MR. DRATEL: So when were you doing that?
MICHAEL DUCH: It would probably be in -- around April of 2013.
MR. DRATEL: Then you cut back?
MICHAEL DUCH: And I was arrested around October of 2013.
MR. DRATEL: Right. It is six months later, right?
MICHAEL DUCH: Right.
MR. DRATEL: You say you cut back in your heroin use in those six months?
MICHAEL DUCH: I didn't cut back, no.
MR. DRATEL: So you were high all the time, right?
MICHAEL DUCH: I used heroin on a daily basis.
MR. DRATEL: You were high all the time, right?
MICHAEL DUCH: I used heroin on a daily basis.
MR. DRATEL: That's not the question.
How many times did you use heroin a day to get those -- that is about a hundred bags a day?
MICHAEL DUCH: That's correct, up to a hundred bags a day.
MR. DRATEL: So you can't do them all at once, right; you'll kill yourself, right?
MICHAEL DUCH: I used heroin four to five times a day.
MR. DRATEL: And how long did it last?
MICHAEL DUCH: Anywhere between six hours or so.
MR. DRATEL: So if you did that four or five times a day, you're high 24 hours a day, right?
MICHAEL DUCH: I think there's a difference between being high on heroin and having enough heroin so you don't actually become ill.
MR. DRATEL: So you did it so you won't become ill, right?
MICHAEL DUCH: Part of the time, yes. Other times I used --
MR. DRATEL: You started to because you were in pain, right? You didn't go from pain killers to heroin because you wanted -- withdrawn.
You went from pain killers to heroin back at the beginning of your problem because you wanted to get high, right, not because of pain?
MICHAEL DUCH: I did it essentially for financial reasons. I mean, to continue to sustain a pain killer addiction is quite expensive. Heroin is a cheaper alternative.
MR. DRATEL: Are you saying that the getting high had no appeal to you?
MICHAEL DUCH: I -- I -- I'm not saying it didn't have any appeal to me.
MR. DRATEL: Of course. You wanted to get high, right?
MICHAEL DUCH: That wasn't the sole reason but it was a factor.
MR. DRATEL: It was a huge factor, wasn't it?
MICHAEL DUCH: It was a factor.
MR. DRATEL: So getting back to your agreement with the government.
So you started cooperating immediately, right? And then -- right? Immediately upon your arrest, you began cooperating?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: And then that involved meeting with the government, correct, to discuss your life history, your variety of things, including your conduct with respect to selling heroin, right?
MICHAEL DUCH: Yes, it did.
MR. DRATEL: OK. So one of those meetings was February 11, 2014, right? I'm sorry. February 6, 2014, right?
MICHAEL DUCH: I don't know if that was the date or not but it was sometime in February, that's correct.
MR. DRATEL: You met in White Plains, right?
MICHAEL DUCH: I did meet in White Plains in February.
MR. DRATEL: You met with an assistant United States Attorney, right, and a DEA agent, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: And a Homeland Security Investigations agent, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: And your attorney?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: Now, at the beginning of that meeting, did the prosecutor say to you that your predicate felony information would be considered, right?
MICHAEL DUCH: I don't know whether that was mentioned or not.
MR. DRATEL: Could it have been mentioned?
MICHAEL DUCH: It might have been.
MR. DRATEL: Do you recall?
MICHAEL DUCH: I don't recall it being mentioned.
MR. DRATEL: Let me show you what's marked as 3514-2, and ask you whether the highlighted portion -- read it to yourself. Don't read it out loud.
MICHAEL DUCH: Sure.
MR. DRATEL: Just you could read the whole paragraph, if you want, for context. Tell me whether that refreshes your recollection as to whether or not the government said -- the Assistant United States Attorney at that meeting said to you that the prior felony information that they could file against you would be considered.
(Pause)
MICHAEL DUCH: No. I'm not sure who created this or what was -- what the point --
MR. DRATEL: I am just asking you whether it refreshes your recollection that at that meeting the Assistant United States Attorney informed you that your prior felony and the prior felony information that could be charged against you would be considered. This is back in February of 2014.
MICHAEL DUCH: It essentially states that A.U.S.A. --
MR. DRATEL: I don't want to know what it states. I want to know whether it refreshes your recollection that that was told to you at that meeting.
MICHAEL DUCH: I don't recall it being told to me.
MR. DRATEL: In fact, you didn't sign a cooperation agreement until December 10, 2014, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: Let me just get this back.
MR. DRATEL: Now, with respect to your agreement, you're charged in this 5-to-40 range that you're charged in in terms of a 5-year mandatory minimum up to a maximum of 40, right? That's based on selling more than 100 grams of heroin, correct?
MICHAEL DUCH: That's correct.
MR. DRATEL: Now, we just saw that chart that you estimate that you sold 3.1 kilograms of heroin, correct?
MICHAEL DUCH: That's correct.
MR. DRATEL: Is that 30 times more, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: So -- and you knew, when you made your deal with the government, that at one kilogram or more it's a mandatory minimum of 10 years and a maximum of life, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: And you knew that with your prior felony conviction, if they filed a prior felony information, that would be a minimum of 20 years and a maximum of life, correct?
MICHAEL DUCH: That's correct.
MR. DRATEL: Now, this agreement that you have with the government doesn't just cover any drug dealing you might have done on Silk Road, correct?
MICHAEL DUCH: I'm not sure what the question is.
MR. DRATEL: The government's not going to prosecute you for other crimes that you've committed, right?
MICHAEL DUCH: I'm not aware that that language is in the agreement.
MR. DRATEL: If I may approach?
THE COURT: Yes.
MR. DRATEL: 3514-17.
THE COURT: Just for your planning purposes, Mr. Dratel, you've only got a couple of minutes left today and then we will pick up tomorrow.
MR. DRATEL: OK. I will just go through this one thing.
THE COURT: Yes. Sure.
MR. DRATEL: If I may stay up here, your Honor, because this is my copy.
THE COURT: As long as you keep your voice up so we all can hear you.
MR. DRATEL: I will stand over here so that the reporter can hear me.
BY MR. DRATEL:
MR. DRATEL: So doesn't the agreement -- I'm trying to refresh your recollection here, that the agreement says that you will not be prosecute, except for criminal tax violations, for, in addition to the Silk Road sales, the theft, purchase and personal use of ecstasy, GBH, cocaine, heroin, and various prescription drugs from 1994 through 2013?
MICHAEL DUCH: OK.
MR. DRATEL: That's part of your deal, right?
(Pause)
MR. DRATEL: Do you want to look at the whole document?
MICHAEL DUCH: Sure.
(Pause)
MICHAEL DUCH: Right, that I won't be prosecuted for any theft, purchase or personal use of drugs.
MR. DRATEL: Right. And those were all illegal drugs that we are talking about, correct, in that -- even though we haven't talked about GBH, right?
MICHAEL DUCH: Right.
MR. DRATEL: It also includes that you will not be prosecuted for theft of property from your father in various Wal-Mart starts in approximately 2008 and 2009, right?
MICHAEL DUCH: That is correct.
MR. DRATEL: And that you will not be prosecuted for the throwing of a telephone at your girlfriend in approximately 2008, right?
MICHAEL DUCH: I don't see that mentioned there.
MR. DRATEL: (Handing)
MICHAEL DUCH: I see it now.
MR. DRATEL: And the trading of heroin for prescription medications from approximately 2008 through approximately 2009, right?
MICHAEL DUCH: That's correct.
MR. DRATEL: Now -- by the way, you signed your cooperation agreement, correct?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: And you read it before you signed it, correct?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: And, in fact, when you pleaded guilty, the judge asked you -- and you were under oath -- have you read the agreement, correct?
MICHAEL DUCH: Yes, I did.
MR. DRATEL: But somehow you didn't know today what was in the agreement, right?
MICHAEL DUCH: I knew what was in the agreement. I just wasn't -- I don't think that I was exactly clear on the language that was in there.
MR. DRATEL: This is a good spot, your Honor.
THE COURT: All right. Thank you.
Ladies and gentlemen, we'll break for today. We will pick up tomorrow, on Thursday, at 9:30, our usual time. And I'll try to have us start at 9:30. I know you folks are good about being here.
I want to remind you still, as usual, the same reminder not to talk to anybody about this case. Thank you.
COURT CLERK: All rise as the jury leaves.
(Continued on next page)
(Jury not present)
THE COURT: Mr. Marshal, you may bring the witness back.
(Witness not present)
THE COURT: All right. Ladies and gentlemen, let's all be seated.
Is there anything in particular that you folks would like to raise? I just wanted to talk about sort of going forward and the timing and things of that nature so I can get a sense of how these witnesses are progressing. We've only got a few witnesses left in the government's case. And I also wanted to just mention that we'll be picking up with the jury instructions tomorrow morning unless there are other housekeeping matters tomorrow morning that arise and that we should take up first.
Those are the only two things that I wanted to sort of go over. So, schedule first. But are there things that you folks would like to address?
MR. TURNER: No, not besides the scheduling.
THE COURT: Mr. Dratel.
MR. DRATEL: Yes, your Honor, in terms of scheduling.
THE COURT: In terms of schedule, but other than that?
MR. DRATEL: Not other than scheduling.
THE COURT: Why don't you give me a sense of, Mr. Turner and Mr. Howard, how things look. Actually, you've got three witnesses left after this witness, and two of them appear to be quite short and one of them a little bit -- one of them longer.
MR. TURNER: Right. I think -- well, the next witness will be short, Agent D'Agostino, and then for Ilhwan Yum I think it may be two to three hours is our best guess. And Brian Shaw will be maybe three hours. But there are a number of exhibits to be read in during Mr. Shaw's testimony and it is always hard to gauge that so it could go longer. So we could certainly be done by tomorrow or at the latest by Monday.
THE COURT: All right. So sometime Monday. That corresponds with what we had discussed previously even with the snow.
All right. If the government rests tomorrow, I will not require the defense to start their case tomorrow. We can pick that up on Monday. It doesn't sound like that is a likely scenario, frankly, anyway. It sounds like the most likely scenario is you are going to have some amount of time going into Monday.
Mr. Dratel, in terms of timing from your perspective?
MR. DRATEL: It is difficult to determine because I know that the government was trying to look on the outside as to what these times would be, and some of them have been faster for a variety of reasons. But the question with Agent Yum is Agent Yum is the witness after Agent D'Agostino. So Agent D'Agostino is going to be short and come right after Mr. Duch.
With respect to Agent Yum, we received Monday night a spreadsheet that he prepared on Bitcoin Wallet and bitcoin transactions that has millions of pieces of information in it without any corresponding 3500. I'm not suggesting that they haven't turned over 3500 that doesn't exist. I am really not in a position to cross-examine him on that tomorrow. I thought I would have until Monday based on the schedule as it was projected.
As it looks now, we will probably finish his direct sometime early to mid-afternoon. I would just ask that we break at that point. We could finish the charge conference at that point.
As far as our case, I'll let Ms. Lewis talk to the Court about that because she has been coordinating that. But, with respect, I think it is really impossible -- we were trying to get up on it but, you know, at the same time as doing everything else in the case, it's really not in a position to absorb -- and it is really just in many respects numbers. It is a spreadsheet.
THE COURT: Do I have this information in my binder that you folks are planning on using with Agent Yum?
MR. TURNER: No, not yet, your Honor.
The issue here is this is something the defendant announced in their opening, that the bitcoins on the laptop did not come from Silk Road, it came from bitcoin trading or mining or whatever. They opened that door, and we have been doing our best to complete an analysis by looking at the addresses on the wallets at issue in the block chain and looking to see the transfers from the Silk Road wallet to Mr. Ulbricht's laptop and to prepare that as soon as we could. And we have provided Agent Yum's basically draft work as soon as we could.
THE COURT: When did you provide it?
MR. TURNER: We provided it to them Sunday night.
THE COURT: And when was the material underlying -- so on Sunday night. Just so I'm clear, this past Sunday, which would have been January 25?
MR. TURNER: I think so, your Honor.
THE COURT: All right.
MR. DRATEL: Your Honor, I'm not suggesting that it was delayed or --
THE COURT: No. I am just trying to get a sense of timing.
You produced the spreadsheet?
MR. TURNER: I produced the spreadsheet. The actual underlying information has been produced to the defense months ago. So you have the image of the defendant's laptop. That contains the Bitcoin Wallet files that were on the computer. You have the images of the Silk Road servers. That contains the wallet files that were on the Silk Road servers. It is a very simple matter to look at the addresses in those wallets and see how many addresses sent money from the Silk Road servers to the addresses on Mr. Ulbricht's laptop. So this is certainly an analysis that could have been done by the defense easily long ago. And, you know, this is what we did in response to their statement in their opening that the bitcoins didn't come from Silk Road.
MR. DRATEL: All I am asking is to put it over, the cross, until Monday morning.
THE COURT: Well, the issue is that right now it looks like there is some chance that we will be into the very last witness tomorrow afternoon -- I think a substantial chance. Now, I don't know what you've got with Mr. Duch and you'll -- I don't want to unduly delay that. But let me get a full picture of where we are with the defense case as well in terms of timing to determine what we're looking at.
So, Ms. Lewis, why don't you give me a sense, first, at this point in time how many witnesses do you have and what is the approximate duration?
MS. LEWIS: So at this time we put the government on notice of eight witness, including one expert.
THE COURT: OK.
MS. LEWIS: The majority of those are lay witness. All of the witnesses are out-of-town witnesses, some out of the country -- at least one out of the country. And given that, we have been trying to obviously keep them abreast of the duration of the government case and we have been adjusting that as we have been going, but even with those adjustments the case, obviously, has been moving faster than we had anticipated.
So I told the witnesses to this point that they would not be -- could not expect to be called before Tuesday, just because there was no way that we would finish before then. Obviously, with the snowstorm, too, we would not know how that was going to go.
THE COURT: Where does the expert in terms of your planning fall generally within your current anticipated order? Is he or she first, middle, last? Just so I can get a sense.
MS. LEWIS: I guess in the middle, your Honor.
THE COURT: The middle. All right.
Are the other seven witnesses, are they short?
MS. LEWIS: They are character, fast witnesses.
THE COURT: Are they half-hour witnesses on direct, something in that nature, or more?
MS. LEWIS: I think so. Again, we are still kind of ironing out exactly what they will testify to, but I believe somewhere --
THE COURT: I am not going to hold you to a timeframe, a certain timeframe. I am trying to get a sense of whether or not they are going to be half a day --
MS. LEWIS: These are short witnesses.
THE COURT: All right. So short witnesses. So there is seven of those and then one expert. How long do you expect the expert to be on direct?
MR. DRATEL: I would think, at the outside, two hours at the outside.
THE COURT: All right. And is the defendant going to testify? At this point in time, I am not having you commit to that but that's obviously a longer witness than any of these.
MR. DRATEL: Right.
THE COURT: And I told you I would start asking you on Wednesday.
MR. DRATEL: True. As of right now, the decision has not been made because, obviously, it is not my decision so.
THE COURT: Absolutely. We talked about that at the final pretrial. It is ultimately Mr. Ulbricht's decision as to whether or not he wants to testify.
MR. DRATEL: Right. And so -- but we'll try to have an answer as soon as we have an answer. I just, you know --
THE COURT: Well, in terms of timing, I mean, can you give me a sense as to whether or not you're leaning for it or you're really just right in the middle right now?
MR. DRATEL: I can't say where we are on that, your Honor.
THE COURT: OK.
MR. DRATEL: I don't want to --
THE COURT: No. That is fine. I just needed to get a sense of it. You are not in your case yet so you don't have to make a decision.
I would think that Mr. Ulbricht is a -- I'm going to say a two-day witness, perhaps more, if he's called. I don't know. It depends on what occurs.
MR. DRATEL: I could tell you about the rest of our case. I think the rest of our case would be -- my sense would be that it would not be longer than two days is my estimation. It could be shorter. It could be a day and a half. Obviously, I don't know what the extent of the cross-examination would be, but I am just anticipating just from my --
THE COURT: All right. Let me ask the government.
MR. DRATEL: -- perspective.
THE COURT: Let me ask the government about Mr. Shaw.
Is there any possibility that the government could call Mr. Shaw before Mr. Yum? Is it a "Mr." Yum or "Ms." Yum?
MR. TURNER: Yes. Mr. Yum.
THE COURT: So that we could swap that order.
MR. TURNER: Well, I think the problem from the government's perspective is that Mr. Yum sets the stage for Mr. Shaw because he explains not only about the bitcoins but he participated in the seizure of the servers and could explain how these servers are known to be Silk Road servers. So it would be a little bit out of the left field otherwise for the agent -- for the jury to hear testimony from Mr. Shaw, who looked at the underlying servers, without understanding where the data came from. That is our concern.
THE COURT: All right. We are going to then proceed in the ordinary course. Mr. Duch will take however long he is going to take. Mr. D'Agostino will take however long he is going to take. We will then proceed into Mr. Yum.
It may or may not be the case that we get into cross-examination of Mr. Yum. It may also be the case that Mr. Yum is held over after his direct for cross until after the weekend.
So we'll proceed. If there is an application renewed tomorrow if his direct is finished and he's on cross and there is a renewed application that you haven't been able to get to it, let's see where we are in the afternoon.
MR. DRATEL: Yes.
THE COURT: And we'll take it as it comes, but I would like to just proceed.
But I understand your point, Mr. Dratel. So get prepared for what you know you can do with Mr. Yum on the assumption that if the government gets to Mr. Yum at noon, I don't think it sounds likely but if they did then we would probably finish Mr. Yum tomorrow, but there is a chance that we can be held over the weekend. But I'm not going to make it occur in that manner.
MR. DRATEL: All right. You know, I'll do what I can, but like I said, this is an avalanche of material.
THE COURT: I understand. The issue arises because of what occurred in the opening, which opens the door to this and --
MR. DRATEL: I don't have any argument with that.
THE COURT: I know. But it is possible that you had in your pocket the very same information going the other way. I don't really know which way any of this information goes.
MR. DRATEL: But --
THE COURT: So this is -- the topic, once it was introduced, put all of this in play, and you introduced it.
MR. DRATEL: We got a list of exhibits in early, you know, in early December that, you know, don't include anything in this, but then we go forward for six or seven weeks and then all of a sudden the defendant -- we're getting a dozen exhibits every day basically that are new. You know, the entire exhibit list has been transformed either through additions, subtractions, modifications. We have been doing this every night. We get exhibits at 8:30 in the morning. I'm not complaining about it, but I'm saying it has an impact on the amount of work I can do on things that come in that involve thousands and thousands of identified information and perhaps millions of transactions. It is just humanly impossible.
That's all.
THE COURT: Well, then, it was a door that when opened had some difficulties in terms of the amount of evidence that would be responsive to it behind it.
In any event, trial is like this. We'll proceed as I've indicated and we'll pick up tomorrow. We'll start with the jury instruction tomorrow after we have dealt with housekeeping.
Ms. Lewis.
MS. LEWIS: I'm sorry. I just wanted to raise again. With regard to the defendant's case, though, we still have this issue where all our witnesses are prepared to be here by Tuesday but not necessarily by Monday.
THE COURT: You need to get somebody here by Monday.
MS. LEWIS: I will do my best to get at least one person here by Monday --
THE COURT: Well, get as many as you need -- as you guys know from the final pretrial, get as many as you need to fill up the remainder of the day. I don't know what that is going to be.
MS. LEWIS: I only say that because these are lay people coming from across the country. It is difficult to get them.
THE COURT: I hear you, but this is not a particularly new issue for anyone. I mean, this is just the way it goes. You will call your witness. You will start your case the moment the government rests, after any motion are made. We'll deal with those. And we'll proceed apace.
So you can confer with the government on precise timing. I do understand the potential inconvenience to the witnesses and the logistics and the difficulties with all of it. I'm not suggesting it doesn't exist in the real world where these human beings actually live and have to get onto an airplane and have to know when to get onto an airplane, and if they are in far-flung places, that airplane ride might be quite long and they need to know in advance. I'm not suggesting that I don't understand, but I am stating that we will proceed to use the time.
We're going to run into some issues with a couple of the jurors, as you folks know, in terms of their employment. We're close enough that I want to make sure that they don't feel in any way rushed during their deliberations, and I think right now we've got plenty of time.
703B I wanted to just talk about for one moment. That is the list of addresses. I wanted to indicate that I do believe that Mr. Dratel was correct in the sense of it being in for the truth. I don't agree that there is a hearsay problem. While the declaration underlying the actual information is a declaration of a buyer -- in other words, the buyer says to the seller this is the address to which you send the drugs -- the seller, which is Mr. Duch in terms of his testimony, then extracts that information. He has testified he sold product to those individuals. And he then maintains those records as business records of his rather substantial drug dealing business. So the basis of the Court's decision on that was business record.
Anybody want to suggest that they had a different -- does the government want to suggest they had a different basis?
MR. TURNER: I think, alternatively, your Honor, it is just a record of the addresses where he shipped his shipments to. So it would just come in for that purpose.
THE COURT: No. It came in -- I think it depends on what the use is going to be. If the use is going to be related to venue in some way, then it's coming in for the truth and it is not just a record for the fact that it was said. It would be coming in for the fact that it went to these particular locations. I don't know if that is the government's plan or not.
MR. TURNER: But in terms of the hearsay, I think it is just a record of his own actions, that he shipped product to these various address. He is just keeping a record. I think it comes in under the business records exception, anyway. But it is also just him recording I shipped 10 bags out to this address, 20 bags out to this address, and that's his own. There was no statement there. It was just his own activities that he recorded.
THE COURT: I understand the government's position. All right. That is an additional basis.
Mr. Dratel.
MR. DRATEL: That chart, those two charts are not business records because --
THE COURT: Not the -- the chart was extracted as in the nature of a demonstrative, as I understand it, from the information contained on the spreadsheet.
Did I get that wrong?
MR. TURNER: A summary, your Honor.
THE COURT: A summary. So it is in as a summary of information. But you still, I think, had your hearsay objection to that.
(Continued on next page)
MR. DRATEL: A witness can't create something and then call it a business record when he's created it for the litigation.
MR. TURNER: To be clear, the spreadsheet he kept in the ordinary course of business. Then he can summarize those records for the purposes of trial.
THE COURT: That was my understanding as to the way in which things had occurred.
Thank you. Let's all resume tomorrow morning at 9:00. Thank you.
(Adjourned to January 29, 2014 at 9:00 a.m.)
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