9.Motion to Strike Ilhwan Yum's Testimony Denied
38 linesTHE COURT: When you reach a logical stopping point, we are going to take our break.
MR. HOWARD: This is absolutely perfect right now.
THE COURT: All right. Had you finished your answer?
BRIAN SHAW: Yes.
THE COURT: All right. Thank you.
Ladies and gentlemen, let's take our mid-afternoon break, and when we come back we'll sit for the remainder of the day. I want to remind you about the usual, not to talk to each other or anybody else about this case. Thank you.
COURT CLERK: All rise as the jury leaves.
(Continued on next page)
(Jury not present)
THE COURT: Mr. Shaw, you can step down as well.
(Witness not present)
THE COURT: All right. Let's all be seated just for one second.
How much more do you have of this witness? I am just curious. I am not rushing you at all. I'm just wondering, do you feel like you are moving fast? Do you feel like you are moving at the pace that you had expected?
MR. HOWARD: I'm sorry. I'm sorry to interrupt you for a second there.
It is moving faster than I expected. However, there will be a lot of reading towards the end so I think we have a couple of hours left.
THE COURT: All right. So you are likely to go the remainder of the day?
MR. HOWARD: I think that is very likely.
THE COURT: All right. Fine.
Is there anything else that we should go over before we take our own break?
MR. DRATEL: No, your Honor.
THE COURT: All right. We'll resume then --
MR. DRATEL: Oh, yes. Wait. I do, your Honor. Just one thing. Sorry.
The testimony of Mr. Yum, we would object to it as expert testimony without proper notice. We'd also object to it on the basis of hearsay and Crawford based on the fact that 60 percent of the work was done by someone who is not here as a witness, and we don't have notes, we don't have anything, or know what was done with respect to these processes, which are very technical. So on that ground I move to strike his testimony.
THE COURT: All right. Mr. Howard.
I'm sorry, Mr. Turner.
MR. TURNER: Your Honor, so we don't think it is expert testimony. It does not require some sort of specialized opinion. As the agent himself explained, this is akin to looking at a bunch of bank records from -- you know, controlled by one entity or coming from one place and seeing if there are transfers going to another place, another account. It was done in an automated way, but it's still in essence just looking at basically the equivalent of bank records in the bitcoin context. It doesn't require expert knowledge. So we don't think it is expert testimony.
And in terms of Crawford, the agent testified, he was personally involved in the analysis and even writing the code that was referred to. There is no hearsay issue.
THE COURT: I think it was a Crawford issue that he was raising.
MR. DRATEL: Yes. That is right.
THE COURT: Not hearsay.
MR. DRATEL: Well, the hearsay is the Crawford part. It is a complication issue because, essentially, the work of someone else is just simply being put in through this witness. And, also, he is an expert in the sense that he acknowledged that he couldn't have done it in the time that it would need to be done. Besides, he is a computer consultant for this very purpose; it is not something they assigned to a paralegal or they did themselves. This was farmed out for a reason.
THE COURT: Well, this witness was an agent on the case who has extensive firsthand knowledge of the materials with which he was working. And expert testimony can be both opinions or specialized knowledge. But I agree with Mr. Turner that while there are no opinions that he offered, he offered fact evidence. It certainly seems to be precisely the kind of work that he would have done had he been at the agency still.
And in terms of there being a confrontation issue, and then implicitly through that -- I now understand you, Mr. Turner -- a hearsay issue, I don't find that that has any traction. The kind of work that he was doing is the kind of work that's typically done, often done with others, and there was nothing that he testified about that indicates that the other person had done something uniquely on his own in which he had no substantive involvement. The only issue was the actual drafting of some of the code, but he had been involved in the logic. So the application is denied. The motion to strike is denied.
MR. DRATEL: There is one other element, your Honor, which is the python programs. He used programs in the sense of -- you know, I don't care if they are off the shelf or not, but there is a hearsay problem and a confrontation problem.
THE COURT: I disagree with that. As we also heard, that particular program is also on the defendant's laptop. But in any event, the application is denied.
Is there anything else that we should do before we take our own break?
MR. HOWARD: Not from the government's perspective.
MR. DRATEL: No, your Honor.
COURT CLERK: All rise.
(Recess)
(Jury not present)
THE COURT: All right. Let's bring out the jury.
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COURT CLERK: All rise as the jury enters.
(Jury present)
THE COURT: Ladies and gentlemen, let's all be seated.
Mr. Howard.
MR. HOWARD: Thank you, Judge.
So, Mr. Evert, would you please put Government Exhibit 901 up again.