6.Bitcoin Evidence Rulings and Juror No. 4 Hardship Inquiry
163 linesMR. DRATEL: Objection.
THE COURT: Sustained.
MR. HOWARD: This might be a natural breaking point, your Honor.
THE COURT: All right. Ladies and gentlemen, we're going to take our lunch break now and come back at 2 o'clock.
I want to remind you all not to talk to each other or anybody else about this case. And, also, if you see any news articles about this case, you are to not read those news articles. Turn away your eyes. All right? I instruct you to do so.
Thank you. We'll see you after lunch.
COURT CLERK: All rise as the jury leaves.
(Continued on next page)
(Jury not present)
THE COURT: You may step down. Have lunch until 2 o'clock. I will see you back on the stand at 2.
(Witness not present)
THE COURT: All right, ladies and gentlemen. Let's all be seated.
I wanted to make certain that we addressed the two exhibits and I have one other matter and then whatever else you folks would like to address before we break for lunch ourselves.
There were objections by Mr. Dratel to Government Exhibits 620 and 620A on Crawford, which I take it, Mr. Dratel, was because of an argument that we discussed yesterday afternoon of insufficient notice?
MR. DRATEL: No. It is really about the underlying -- in other words, you have a couple of preliminary steps in Mr. Yum's analysis. Then you have an intermediate step and then you have a final step, and we don't know how we get from the intermediate step to the final step.
THE COURT: You can take him through that on cross-examination.
MR. DRATEL: I understand. But there is no foundation for it, and I believe that it is probably something that creates a Crawford confrontation issue, similar to other sort of scientific or computerized issues, where something is done and then someone comes in and presents something that is essentially the work of a computer program and it is not -- you know, it hasn't been verified. You know, I don't know what his relationship is with the program. We don't know any of that. We don't have any underlying stuff as to how it was done. It is not a simple process, and I don't think it was done manually.
THE COURT: Was that the nature of your Crawford objection both for 620 and 620A?
MR. DRATEL: Yes, your Honor.
THE COURT: All right. So at this point I don't find there to be any traction to that objection and so it was overruled before. If after cross-examination you have some basis to renew the application, then you can go ahead and do so. See what you want, what you can develop on cross-examination. You are certainly entitled to go into all aspects of how he performed this exercise.
MR. DRATEL: And with respect to the notice, your Honor, my application would be, again, to put off the cross until Monday morning so that we can absorb stuff that we were actually hearing for the first time about a document that has, as you can see now, an extraordinary number of transactions. There is zero backup. Zero anything for it. We have been trying to develop what we can but we still need more time to do that.
THE COURT: When you say that there is zero backup, zero anything, my understanding from our conversation yesterday afternoon was that all of this information, which is the very information at the heart of this case, was produced during discovery.
Mr. Howard.
MR. HOWARD: That's correct. On Sunday night we provided the spreadsheets --
THE COURT: Let's go back first to what was --
MR. DRATEL: The analysis, how the analysis was done.
THE COURT: Mr. Dratel, let me just make sure I have got the facts in order.
Tell me when and what was produced that underlies this analysis during the discovery.
MR. HOWARD: Yes. For almost a year now, the defendant has had access to images of his laptop and the various servers where these log files were contained, including what's been referred to as the Philadelphia backup server and the Iceland bitcoin server. Those images included all of these bitcoin wallets and the private keys for those wallets, which is the same images the witness just talked about. Based on that, all of this information, all of the bitcoin addresses were stored in those wallet files that have been available to the defendant for over a year.
THE COURT: All right. And then, as I understand it from our conversation just before we all adjourned last night, the analysis that is at 620 and the summary of that, where the comparison was done, that analysis was performed during the course of this trial and was produced on Sunday; is that right?
MR. HOWARD: Yes, you are right, your Honor. And within a couple of hours of actually us receiving the spreadsheets that had all the data in them and, you know, the much more complicated and much more voluminous than the summary charts that we're pushing into evidence, but that was produced promptly to the defense as soon as we had them generated.
THE COURT: All right. Mr. Dratel.
MR. DRATEL: A couple of things. One is they had it, too. So why are we getting this in week three of trial if they had all of this information before as well? Why did they prepare this analysis -- they've only started once the trial started.
THE COURT: Well, as I understand it, this all went back to your opening statement.
MR. DRATEL: Yes. But what I'm saying is to say that we had all the wallets and the addresses is immaterial in the sense that they had it too. If they wanted to put together an exhibit that linked all of that, they should have done it in advance of trial, not -- and they've done it during trial, OK, but I should have the opportunity -- this witness, it took more than a hundred hours to prepare this analysis. I've had it for maybe 80, not including the time in court and sleeping and doing all the other stuff that needs to be done in this case. So it's really no time at all. This witness took a hundred hours. They got paid $55,000 for this.
THE COURT: Well, the objections are overruled, as I've said. And in terms of timing, we will go into cross-examination right after the government is done with its direct examination with this witness.
The materials that underlie the analysis were produced long ago. Based upon the opening statement and based upon one of the theories of the defense, which is that the defendant was a bitcoin trader and that any bitcoins in his possession were from bitcoin trading, it was reasonable to expect that you yourself had done such an analysis and, therefore, that you had some intention of presenting something that would have shown the opposite. In any event, you've opened the door to it, and we're going to proceed. And the fact that the government adjusted and was able to do so is not something that is particularly problematic or unusual. So that's my ruling on that.
So we'll proceed with cross-examination with this witness after lunch.
MR. DRATEL: Your Honor, what I'm asking for, in functional terms, is a two-and-a-half hour accommodation so that I can prepare a proper cross-examination of this witness.
THE COURT: I have heard your application, and we're going to go directly into the cross-examination of this witness. If you --
MR. DRATEL: Then I am making a notice objection to the entirety of that level of his testimony --
THE COURT: The objection is overruled. I think you've got your position well and truly stated on the record. If you have any additional positions you want to state, you can file it in a letter on the docket.
In terms of hearsay, there is no hearsay issue with these documents, and certainly the foundation was well established for these. So those objections are similarly overruled.
Mr. Howard, would you like to address or fill out the record in any regard yourself?
MR. HOWARD: Yes, your Honor.
The fact is, as you correctly stated, this door was opened by the defense during their opening statement. They made a claim about the source of the bitcoins that were recovered from the defendant's wallet files. In response to that, we performed an analysis with the help of outside consultants. As soon as that analysis was ready, we produced the underlying data to the defense. We produced some summary charts today in court.
It should be noted that there was some time that was required to produce the analysis, but at the end of the day it is all based on public records showing one-to-one connections between bitcoin addresses. It is not anything very complicated. The time was spent on just getting the process to get that together.
THE COURT: All right. If either party has any additional positions that they would like to state on this that they want to put in by letter -- obviously, you can't raise new issues -- that you haven't had a full chance to air just now, file something for tomorrow morning.
In terms of I had more issue, which is Juror No. 4. We have heard back from Juror No. 4's employer, and they are not -- it is disappointing, they are not willing to accommodate the issue with Juror No. 4.
So the issue is as follows: She is required to begin taking vacation time after tomorrow -- after Monday.
Am I right?
COURT CLERK: Yes.
THE COURT: Monday is the day, her timing where her company will allow her just the time.
Now, she does not know that we have heard back, because I wanted to talk about this with you folks and determine how you believe we should proceed. Obviously, there are a couple of different things that we can do, one of which is just -- I think it is fair to tell her that we've heard back and that we understand that there is not going to be an accommodation. I need to understand from you folks whether that should be done in the robing room or at sidebar, you know, with you folks, or whether or not Joe can just convey that simple message: We've heard back from her employer. We understand that they are not going to alter the manner in which they previously told her they were going to proceed.
Separately from that, I don't think we should solicit whether or not she is going to now raise a hardship issue and seek to be dismissed. I think that we should wait and see what she does and then respond step-by-step accordingly. It may be that she is prepared to take vacation time. She did present this issue to us, but I don't have any indication that she -- I don't know one way or the other. So I would just leave that. See what the response is next.
One thing that I think would be helpful in that regard would be to give the jury some sense as to where we are with things with lots of room around the edges in case things change. But we've got one government witness left after Mr. Yum, who is expected to take likely less than a day, and then after that we'll be into the next phase. So that's my proposal.
So let me just summarize. We would convey to Juror No. 4 that we've heard back -- she may have heard herself, but she may not, and we don't want her taking inadvertently vacation time thinking that maybe there is some accommodation that had been made. So we should tell her that we've heard back. Leave that. And then I would propose at the end of the day to assess with you folks at our afternoon break where we are in terms of timing and schedule and then give the jury just some sense as to where we are going.
Mr. Howard.
MR. HOWARD: That sounds acceptable to the government.
THE COURT: Mr. Dratel.
MR. DRATEL: The only thing I have a position on right now is that any communication should be with the Court and the juror. I think that would be the appropriate way to do it in the robing room and that the communication be on that level.
THE COURT: And by that you mean, with the Court, you mean without --
MR. DRATEL: When she is informed. I think it is appropriate, based on case law and everything, that the Court informs the juror.
THE COURT: Right. My question to you is do you want to be present for that?
MR. DRATEL: Yes.
THE COURT: Fine.
MR. DRATEL: Because she may respond right there.
THE COURT: Right. I mean, that's always possible. Obviously, if she did and it were just a communication with me, I would not communicate back without conferring with you. And I would receive the communication, indicate to her that I needed to proceed with counsel. But we would proceed, believe me, very carefully.
I'm happy, though, Mr. Dratel to have you folks -- what I would suggest is that we just do it in the robing room just before we resume. And the question then is is the defendant willing to waive his appearance for that session?
MR. DRATEL: Yes, your Honor.
THE COURT: All right. Thank you.
Then that's what we'll do in terms of informing her.
What's your view on the rest of it? Sort of take it as it comes?
MR. DRATEL: Well, I'm not sure as to whether, if she doesn't respond, whether it is appropriate to have some brief voir dire about impact on her. I'm not sure. Can I think about that?
THE COURT: Why don't you think about it. Why don't we then resume ourselves and at least we can resume -- we will need the defendant for this -- as to how you would like to proceed with her at 1:45.
So I need the marshals to make sure that Mr. Ulbricht is back at 1:45. Will that be all right? Yes. I'm getting a nod of the head. Thank you.
So at 1:45 we'll resume and then we'll figure out if you've got something else you would like us to ask.
MR. DRATEL: OK.
THE COURT: All right. Thank you.
Anything further either of you would like to raise right now?
MR. TURNER: No, your Honor.
THE COURT: Mr. Dratel?
MR. DRATEL: No.
THE COURT: We're adjourned.
COURT CLERK: All rise.
(Luncheon recess)
A F T E R N O O N S E S S I O N 1:51 p.m.
(Jury not present)
THE COURT: All right. Let's all be seated.
And the purpose for resuming at this point was to see whether or not, Mr. Dratel, you had any additional questions you would like me to ask of Juror No. 4 basically before she expresses anything, or if she expresses something, you know, if you have any views.
MR. DRATEL: Well, I guess if she doesn't express anything, I'm not sure there is any need to go further. But if she does express any anxiety about the time, we should probably ask what the impact would be on her.
THE COURT: All right. The way I would word it is would using her vacation time make her unable to be fair in this case. We'll see what she says. It could go in a variety of directions at that point.
Mr. Howard, Mr. Turner, do you have anything else that you would like the Court to ask?
MR. TURNER: I just think it might be worth noting how much longer the trial is expected to continue.
THE COURT: All right. So in that regard, it's I think relatively straightforward for me to say that the government's case is likely to end on Monday and then we're going to get into the defense case. Actually, I can just be vague and say we're -- you know, I don't want to commit to a particular timeframe, but we're far along in this case and I would think that this would be done in a week or shortly thereafter.
It's going to take, I think, if, Mr. Dratel, depending on the length of his case, it's going to take at least until Wednesday midday, I think, and that's if the defendant doesn't testify. If the defendant does testify, that could take Wednesday, Thursday -- you know, I want to let that run its natural course. And so I don't want to commit us with a juror.
By the way, once we've previewed the timing to the juror, I will need to tell the rest of the panel that as well when they come out. So I don't want to commit. So it's something that's sort of like we'll be done next week because we may well not be done next week. We may be done with the testimony next week but it is hard for me to predict and she can't predict how long deliberations will take. You know, they've got a number of counts.
So I would say that we are far -- you know, without committing, we're far along in this case and I hope to be able to give you another update. And then once we know from Mr. Dratel how long his case is going to be, we can maybe on Monday give them a further update.
How does that sound, "far along," using that phrase?
MR. TURNER: That sounds good to the government.
MR. DRATEL: Yes, your Honor.
THE COURT: Mr. Turner, is there anything you want me to say more specifically, or Mr. Howard, than "far along"?
MR. TURNER: No. Thank you, your Honor.
THE COURT: I would love to say that we are likely to have the case go to the jury on Thursday, but I don't want to do that because we may not.
MR. TURNER: I understand. The witness may have a question and I just want to make sure --
THE COURT: All right. Well, I would actually preview this to her when I -- if she says anything like, oh, that's really too bad -- if she says something like, oh, that's really too bad, then I think I would say is it going to affect your ability to be fair in this case that you are going to have to use your vacation time and see what she says. And then after that I could say, well, at least I can tell you that, you know, we're very far along in this case. OK?
All right. So, Joe, do we know if she is here?
COURT CLERK: She is not here yet.
THE COURT: She is not here yet.
All right. So as soon as she gets in, we'll pick up with her in my robing room. So Joe will bring you folks in first. So stay in the vicinity. Don't leave. And with the court reporter. And then we'll pick up as soon as we're done with her. We'll just take a couple of minutes with her. All right?
MR. TURNER: Your Honor, I just wanted to note that -- picking up from our conversation this morning about the jury instructions --
THE COURT: Yes.
MR. TURNER: -- that I was incorrect about the "organizer" language. That does not come from a Second Circuit case. It comes from multiple other circuits that I can provide the Court with the citations, if you would like, an hour later.
THE COURT: Why don't you just state -- don't give me the names, just give me the citations for those. It will make it a little faster.
MR. TURNER: Sure. 885 F.2d 195, the Fourth Circuit; 965 F.2d 1390, the Sixth Circuit; 843 F.2d 421, the Tenth Circuit; 734 F.2d 1030, that's Fifth Circuit --
THE COURT: I'm sorry. 734?
MR. TURNER: F.2d 1030 is a Fifth Circuit.
THE COURT: Right.
MR. TURNER: And then there is an NDNY case that cites, as well, 912 F.Supp. 655. There is also a related Seventh Circuit case --
THE COURT: That is not F.Supp.2d, it is F.Supp?
MR. TURNER: F.Supp.
THE COURT: All right. Let me just ask you whether or not the Second Circuit has had the question presented to them so far as you are aware?
MR. TURNER: I just searched for that specific language.
THE COURT: OK.
MR. TURNER: I think the larger point is that you don't have to actually control the people you are organizing. They could be -- there is also a Seventh Circuit case, 847 F.2d 1233. It doesn't use the exact same language but it was cited along with those other case.
THE COURT: Terrific. Now, Juror No. 4 I am informed has arrived. So why don't counsel come with me and the court reporter into the robing room right now.
As soon as we are in there, Joe, why don't you bring Juror No. 4 in. All right?
COURT CLERK: All rise.
(In the robing room)
MR. TURNER: Who is the juror's employer?
THE COURT: NYU Medical Center.
(Juror No. 4 present)
THE COURT: Come on in.
JUROR: How are you?
THE COURT: Just have a seat. I'm sorry.
JUROR: I think I will. I usually stand in the other room. That is OK.
THE COURT: I'm sorry for the formality of all of us, but we have to do things on the record all the time.
JUROR: Yes.
THE COURT: And I wanted to let you know that we have heard back from your employer, and they're not willing to change what they've said is the policy that they have about the vacation time. We pushed back and they have just expressed an unwillingness to do it. So I wanted to let you know that. That is the purpose for having you in.
JUROR: Oh.
THE COURT: All right?
JUROR: OK.
THE COURT: And so if -- one thing I can tell you is that we are relatively far in and far along in this case.
JUROR: It feels that way, yeah.
THE COURT: So, you know, if you have any other concerns, you are to let us know.
JUROR: In terms of relatively, I mean, is anybody able to say --
THE COURT: You know, we'll have I think a better view on this Monday.
JUROR: Mm-hmm.
THE COURT: But the problem is, here's the issue.
JUROR: Right.
THE COURT: Things are pretty uncertain. If I tell you one timeframe, I told you it could be as soon as the end of next week, that could end up being wrong and it could go on for a week beyond that. And if it is going to make a huge difference, then I don't want to have you get your sights set on a particular timeframe because you don't know how long you and your colleagues are going to want to deliberate and it is just going to be --
JUROR: Yeah.
THE COURT: So there is always with trial a certain amount of uncertainty.
JUROR: OK. Then I'm just curious, you know, because I did Google that, you know, can your employer actually do this, you know, require that you use vacation time for jury service. And according to the newyorkstate.gov website, no, they can't. So I'm just idly curious to know, you know, all well and good if this is what they put in the employee handbook, but how is that possible or where is the disconnect there?
THE COURT: You know, I don't know and I haven't looked at that website. But this is the federal system so I don't know if there is a difference there.
But we checked with our jury department when this first came up, and the reaction we got -- and they face questions like this fairly frequently -- is if it's disclosed in the employee handbook and it's there and it's been there and it is not just for you for this case, then --
JUROR: It's tough.
THE COURT: -- that's the way it is.
Now, I haven't done an independent investigation of that. We'll look at it again just to sort of be sure so that I can look underneath it if you've seen something.
Let me ask you, are you going to be able to be fair in this case if you have to use vacation time? Is it going to be a problem for you?
JUROR: No, that wouldn't be a problem. I mean, it just gets to be -- of course, since I went into work on a snow day when the office was technically closed, I get an extra vacation day. It's these little things, but it does obviously come down to like how many more witnesses we have, and I know that there is a wildcard there. So, you know, yes, I wouldn't want to, you know, blow my entire bank. I mean, it is reasonably generous but, still, I've got kids, you know.
THE COURT: If at any point in time you believe that you are unable to be fair in this case because of that, you should definitely let us know, and we'll then talk with you at that time about it. And I'll try to give you and the rest of the jury panel an update on timing and give you something a little more concrete. Even if you can't predict length of deliberations, etc., if you have a sense of when the end of the case is going to be, that might help you some in your own mind to gain some comfort. So we need to sort of all talk about that. OK?
JUROR: Yeah. Then is the only way for me to then get off is to claim that it would cloud my judgment? I mean, even if it wouldn't. I mean, I wouldn't want to --
(Laughter)
THE COURT: You are speaking like a human being. Let me just say that whenever a juror feels like there is something external that is causing them to be unable to be fair, it's of real concern to us and we need to explore it fully. We would press you hard on it and because, you know, jury selection here, as you know, it was complicated and you guys filled out a questionnaire. You were accepted because of each juror's individual qualifications. We want the jurors that have been selected for this group, but we want you also to be able to be fair. And if something is clouding that, we need to know.
JUROR: OK. Yeah, I mean, I had no idea -- I mean, while -- the classic thing, you know, like you are handed a wrap of paper, you know, in HR and you sign it, you know, you are giving me the employee handbook, have you read this, you know. So, I mean, I had no idea that that was actually the policy. And, anyway, you know, and having been selected for jury duty two other times, it is like what are the chances that I actually get it this time. So, anyway.
THE COURT: Once you have been selected twice, your chances are pretty high. That means there is something about you that makes you --
JUROR: Was it just me, though? I mean, how could that be?
(Laughter)
THE COURT: Let the record reflects laughter.
JUROR: So you're saying I would have to then meet with you all again in order to -- you know --
THE COURT: Yeah. I don't want to make it seem like there is some barrier with you. But what I do want to do is I want to suggest to you that I -- that if you really feel like you cannot be fair, come back to us.
JUROR: OK. I am nervous.
THE COURT: Then come back to us. All right?
JUROR: OK.
THE COURT: We do need to question you. That is just the way the process works. OK?
JUROR: Right.
THE COURT: So everybody will be here. Nobody bites.
But if it's that you feel like you can be fair but, you know, you wish this didn't happen like this, that, you know, that you weren't going to have to use your vacation time, then I'm going to ask you just to hang on.
JUROR: OK. All right. So I think I have one more day, Monday, right?
THE COURT: One more day in your --
JUROR: In my --
THE COURT: Allotted time.
JUROR: In my allotted time, right.
COURT CLERK: Since jury selection, we have had nine trial days.
THE COURT: You should count yourself and make sure what your count is. All right?
JUROR: OK.
THE COURT: Then I'll try. We are going to try to assess, as we have been doing as things go along, how much longer and try to give you guys what guidance we can. All right?
JUROR: Right.
THE COURT: Without causing undue expectations in any direction. OK?
JUROR: All right.
THE COURT: Thank you. Thank you for coming in here with this multitude --
JUROR: Thank you.
(Juror not present)
THE COURT: We are off the record. Actually, stay on the record a minute in light of that.
Anybody have any view as to anything else that we should do at this time?
MR. DRATEL: No, your Honor.
MR. TURNER: No. I don't think so, your Honor.
THE COURT: All right. Then let's go off the record and we will then head on out.
(Continued on next page)
(In open court; jury present)
THE COURT: Let's all be seated. Thank you.
I wanted as a housekeeping matter, to give you folks a sense of where we are in the case. We are what I would characterize as far along in the case. I don't want to be anymore specific than that right now because things can fluctuate some. I'm going to try very hard to give you a better sense of where we are on Monday. Right now, I just wanted to use those words to sort of give you a general sense of where we are in the case, all right.
Thank you. Let's continue with Mr. Yum.
Mr. Howard.
MR. HOWARD: Thank you, your Honor.