1 IN THE CIRCUIT COURT OF THE STATE OF OREGON 2 FOR THE COUNTY OF WASHINGTON 3 4 STATE OF OREGON, ) ) 5 Plaintiff, ) ) 6 vs. ) No. C940322CR ) 7 RANDAL LEE SCHWARTZ, ) ) 8 Defendant. ) Volume 4 9 10 11 TRANSCRIPT OF PROCEEDINGS 12 13 BE IT REMEMBERED THAT on the 11th 14 day of July 1995, the above-entitled matter came on 15 for Hearing before the HONORABLE ALAN C. BONEBRAKE, 16 a Circuit Court Judge. 17 18 APPEARANCES 19 Thomas J. Tintera Washington County Deputy District Attorney 20 Representing the State of Oregon 21 Mark Sussman Attorney at Law 22 Representing the Defendant 23 24 25 296 1 MORNING SESSION 2 BEGINNING AT 9:45 A.M. 3 JULY 11, 1995 4 5 MR. TINTERA: Time set for jury 6 trial in the case of State of Oregon versus Randal 7 Lee Schwartz, C940322CR. Defendant is present, not 8 in custody, appearing with counsel and counsel's 9 helper. 10 THE COURT: Okay. I've talked with 11 counsel in chambers. I do see on my bench here 12 copies of lists of witnesses the parties intend to 13 call. 14 We have talked about how we would 15 choose the jury and I think have reached an 16 agreement on that procedure. Kind of a melding of 17 the old plus the new method, and I indicated that I 18 would work with counsel. Both counsel, I know to 19 be reasonable. I don't think we'll have a problem 20 of getting through that process. Should work for 21 everybody. 22 I do have motions in limine that 23 have been filed by each side and a motion -- then 24 defense has filed a request for written jury 25 instructions, and also I guess two motions in 297 1 limine, actually, by defense. I'm prepared to 2 handle those. Some of the matters are fairly easy 3 and some might take a little more discussion. 4 First of all, regarding the written 5 jury instructions. Mr. Sussman, this is the 6 defendant's request. I reviewed the statute again. 7 My habit in cases, except for the most simple 8 cases, has been in the past to electronically 9 record the jury instructions and give those to the 10 jury. I know we could prepare typed ones, it's 11 just easier to do it that way. 12 MR. SUSSMAN: Your Honor, I have no 13 problem using electronic recording. 14 THE COURT: I'll do that in this 15 case, then. So we have resolved that matter. 16 Let's take up the motions in limine 17 that have been filed. Since the State filed theirs 18 first, let's take those up. 19 Looking at the motion in limine 20 filed by Mr. Tintera on behalf of State, there are 21 seven items. Maybe some of these may be -- 22 sometimes I know that there just aren't issues 23 involving some of these. Mr. Sussman, you looked 24 at 1 through 7. Are there any of those that you 25 think are non-issues? 298 1 MR. SUSSMAN: Yes, Your Honor. 2 Number five is a non-issue. We're aware that 3 witnesses' personal opinions as to whether the 4 actual criminal -- or Intel's motivation are not 5 relevant. Those were matters that were included, 6 part of an investigation reported that was 7 disclosed to the State. 8 THE COURT: Frequently the witnesses 9 in those statements say things that everyone 10 recognizes may not be produced as evidence. Other 11 than that, you want to argue about the other ones? 12 MR. SUSSMAN: Yes. 13 THE COURT: One, "Evidence of the 14 defendant running a crack program against passwords 15 for benevolent purposes outside of his Intel 16 employment." What you are speaking of there, 17 Mr. Tintera, is when he was employed by or had 18 contracts to work for someone other than Intel? 19 MR. TINTERA: Yes. 20 THE COURT: You say "for benevolent 21 purposes." Your meaning there is what? 22 MR. TINTERA: It appears from some 23 of the reports that the defense has provided to me 24 that people were of the opinion that Randal would 25 run this program against their passwords, and that 299 1 was just fine with them, and boy, he was doing them 2 a big favor. That's -- that may or may not be 3 true. I guess that depends on how those 4 individuals operate their security and their 5 computers. 6 The fact of the matter is it's not 7 relevant to the defendant's illegal conduct in 8 regard to the Intel Supercomputer Division password 9 file. That has nothing to do with the Intel 10 Corporation. What it would do is allow the jury to 11 say, hey, maybe this isn't any big deal. This 12 is -- he does it for other people. What's the 13 problem with Intel trying to protect their 14 proprietary information in their Supercomputer 15 Division? Why don't they get on board with all the 16 other people that Mr. Schwartz has attempted, in 17 theory, to help? 18 I can't see how this is relevant to 19 any of the issues that we're going to be inquiring 20 of during the trial. 21 THE COURT: Mr. Sussman. 22 MR. SUSSMAN: Your Honor, there are 23 a couple reasons we believe the evidence is 24 admissible. 25 First, the State -- in the counts 300 1 that specifically deal with running the Crack 2 program, the State has alleged not simply that he 3 was having improper access to a computer or 4 computer system, but the counts allege that he did 5 intend to commit acts of theft. 6 The State, in its discovery and 7 witnesses, indicated it was prepared to show in the 8 course of doing the conduct, which is part of the 9 allegation, that Mr. Schwartz not only had run 10 Crack against the passwords at Intel, but against 11 O'Reilly, his publisher, and that they were in 12 reference to his admissions and not in the 13 discovery materials or the reports that they run 14 that program in this same time period against a 15 third person, Techbook, which is James Deibele, one 16 of our witnesses. 17 We say it's relevant in several 18 respects. First, if the State is now offering the 19 evidence -- 20 THE COURT: Stop you just a minute. 21 Do you intend to offer evidence that this defendant 22 ran crack programs against other persons? 23 MR. TINTERA: It's contemporaneous 24 with what he was doing at the time, when he was 25 running the program in the week of October. 301 1 THE COURT: The simple answer to 2 that is yes? 3 MR. TINTERA: Yes, with an 4 explanation. 5 THE COURT: I just need to know yes, 6 because it seems to me that you're asking me to 7 preclude the defense from doing something you want 8 to do. 9 MR. TINTERA: What he did in 1991 or 10 1992 doesn't seem to be relevant. What seems to be 11 relevant is what occurred in the later part of 12 October and the beginning of November of 1993, and 13 in that particular time, we could show 14 contemporaneously with the running of the Crack 15 program on the Supercomputer Division password 16 file, that he also had other password files that, 17 apparently, he had imported into Intel to run this 18 program against. 19 THE COURT: I'm sorry I interrupted 20 you, but I wanted to clarify. How is the fact that 21 he may have had other password files there relevant 22 to anything that we're doing in this case? 23 MR. TINTERA: Shows his intent in 24 regard to the illegal activities. Part of his 25 network involved the O'Reilly Associates in 302 1 Massachusetts, and if he has the password files to 2 O'Reilly Associates, which he did have on an Intel 3 computer that was running the Crack program, if he 4 cracks their programs now -- and that relates to 5 the Gate programs. He had added in the gate, part 6 of the gate went to O'Reilly and Associates, as I 7 understand it. If he has their passwords, once he 8 cracks the Supercomputer Division passwords at 9 Intel, he has unrestricted access to those files or 10 computers that those passwords relate to. 11 Then he cracks O'Reilly's passwords. 12 Now he has unrestricted access to O'Reilly 13 computers and he has a direct link between the two 14 computers. Now he's opened up an unrestricted 15 highway through Intel's firewall, through 16 O'Reilly's firewall, for anyone to drive through 17 and gain any information that they choose to. 18 I think it's clearly relevant that 19 the jury should know that's not just an isolated 20 incident, but this is a group of activities that 21 he's going in and that this group has a purpose and 22 the purpose is to open up a huge wall in the 23 security of the Intel Corporation such that anybody 24 could essentially drive a Mack truck through it, 25 load it up with the all the proprietary information 303 1 that is contained in those SSD, Supercomputer 2 Division files and drive off without anybody 3 knowing about it. 4 THE COURT: Isn't this 403 stuff, 5 other bad acts that you want to bring in? 6 MR. TINTERA: No. This is 7 completely related to what was occurring right at 8 the time. Shows his motivation. Shows his 9 purpose. 10 THE COURT: Did you file a motion in 11 limine on this point? 12 MR. SUSSMAN: Your Honor -- 13 THE COURT: That's the first 14 question. The second question, if not, do you want 15 to argue it, nevertheless? 16 MR. SUSSMAN: Your Honor -- 17 THE COURT: To the extent possible, 18 I'd like to limit what we're going to do to the 19 facts involved in this case. That's my general 20 umbrella of what -- how I would like to rule on 21 these matters. 22 MR. SUSSMAN: Sure. 23 THE COURT: Now, I understand that 24 sometimes we are required to permit evidence of 25 other acts committed. Sometimes they are directly 304 1 relevant to what we're doing here. Sometimes they 2 tend to show motive, intent, design, lack of 3 mistake, that sort of thing. 4 We all know what the rules are in 5 403, but it's only with reluctance that we get into 6 those other matters because then we're involved in 7 either trying to prove or disprove other cases, and 8 I'd like to try this case, not some other case. 9 MR. SUSSMAN: Certainly, Your Honor. 10 Quite candidly, Your Honor, I hadn't filed a 11 motion -- there was a motion in limine we filed 12 that was quite sometime ago that addressed some of 13 those issues and, actually, it was supposed to have 14 been addressed at the omnibus hearing and we didn't 15 get to it. And I don't know if you have that 16 motion there. 17 The motion in limine that I did file 18 with respect to other bad acts that we thought the 19 State might try to introduce was not referring to 20 these incidents of running Crack against O'Reilly 21 and Techbook because they were contemporaneous. I 22 will say that accepting the State's reason, and if 23 we accept that as relevant, if that compels the 24 need for the evidence that the State is objecting 25 to, number one, on two other grounds, it shows -- 305 1 THE COURT: I'm going to exercise 2 judge's prerogative and interrupt again. I'll lose 3 my train of thought if I don't. You're younger 4 than I am and you'll remember what you're thinking. 5 Really, in number one there are two 6 things: One is the fact that the State wants to 7 prohibit reference to the fact that he was running 8 crack programs against passwords on other 9 occasions, or maybe simultaneously with this one, 10 but not a part of Intel's computer. And then the 11 second part of that is the inference that you're 12 going to bring in evidence that when he ran it on 13 those other occasions, people didn't care. In 14 fact, people encouraged it. "It's good work. You 15 ran it to test our security systems." 16 The fact that he may have run crack 17 programs on other occasions as part of it, 18 testified by those other people that they didn't 19 care, may be a whole other issue. How is it 20 relevant that they didn't care? 21 MR. SUSSMAN: I'm presuming -- Well, 22 let me back up. I'll -- 23 THE COURT: That's like bringing in 24 in a theft trial other victims of the defendant to 25 say, "Well, he stole from me, but I never" -- 306 1 MR. SUSSMAN: The problem with the 2 analogy is that that's not a proper analogy to 3 suggest that we're talking about a victim of a 4 theft here. We're talking about an action which 5 was -- and we think the evidence will show -- was 6 done as part of a routine practice of people in the 7 kind of position Mr. Schwartz occupied, and that it 8 went to a couple of basic issues. Number one, his 9 state of mind as to whether or not he believed that 10 he was authorized to engage in the conduct. 11 Secondly, whether, when he engaged in that conduct 12 in running the crack programs, he was doing that 13 with the intent to commit theft. 14 Now, the evidence of his past 15 practices, of his -- is either admissible as his 16 habit and routine or it's admissible as relevant to 17 show his state of mind on this occasion. 18 The second piece of your question 19 about the reaction that he got, I think 20 specifically talking in this case from James 21 Deibele, I think is the witness that the State is 22 objecting to, was that this was -- because this is 23 what was occurring contemporaneously and as part of 24 the conduct of the process that was going on, the 25 reactions that he got and the interaction that went 307 1 on and how it interrelates to Mr. Schwartz. The 2 sequence of events and his thinking and his frame 3 of mind is extremely relevant as to the ultimate 4 issue of his intent. 5 THE COURT: Okay. Anything else, 6 Mr. Tintera? 7 MR. TINTERA: No, Your Honor. 8 MR. SUSSMAN: There is one other 9 thing I would mention in terms of answering the 10 second question. We intend to show that in 11 Mr. Schwartz's practice, the pattern of his 12 doing -- of the kind of things that he was doing, 13 that it was common for him to do favors in 14 identifying problems, even if this was not 15 something that he was specifically working on and 16 this was -- that the reaction that he got from 17 Mr. Deibele, that this was reinforced, that is 18 again evidence that comes back to being relevant to 19 the state of mind and explains the statements that 20 the State will intend to offer, that the State 21 witnesses will offer to show are incriminating, and 22 this -- we believe this kind of evidence is 23 necessary to show there was another meaning or that 24 Mr. Schwartz's meaning in these statements had a 25 different and non-incriminating nature. 308 1 So it has -- it becomes, I think, 2 extremely relevant to the state of mind for that as 3 well. 4 THE COURT: Well, I said this 5 before, I think in this case and others as well, 6 and that is on these pretrial evidentiary matters 7 raised in motions in limine where counsel are 8 intimately aware of all the evidence, they've had 9 discovery, read reports, talked with witnesses, 10 you're way ahead of me on knowledge of how this 11 material may be relevant or may not be relevant, 12 and I have to hear abbreviated versions of it from 13 you and try to make a decision in advance. 14 It's easier, obviously, if I do it 15 during the trial when an objection is raised or a 16 question is asked of somebody, because by then I've 17 heard much of the evidence, usually, and am able to 18 rule based on some information I've received other 19 than just an abbreviated statement of facts. 20 Unfortunately, though, sometimes 21 these things are prejudicial and they are so clear 22 that the Court can rule in advance and exclude the 23 evidence so we don't hear about it on opening 24 statements or we don't even hear the questions 25 asked. 309 1 I have to just kind of go on faith 2 on the representations made by counsel, and I'm 3 certainly not suggesting that either counsel before 4 me today would intentionally try to misinform me. 5 I'm certain of the contrary, because I know each of 6 you well now. Seems to be a close question. 7 I can understand how the fact that 8 the defendant may have run crack programs against 9 passwords on other occasions for other employers or 10 persons he's contracted with, and done that as a 11 part of either explicit or implicit approval by the 12 employer would be something that he would have in 13 his mind then and would be relevant to his intent 14 or state of mind at the time he was acting in this 15 case. 16 And so at this point, my preliminary 17 ruling is that it would be relevant to those 18 issues. I would not go so far as to say, though, 19 that I'd permit those other persons to come in and 20 say -- I guess what I'm saying, when I broke it 21 down into two parts is, first of all, when we 22 started this discussion, the fact that he ran crack 23 programs, at this point I am saying yes, I'm going 24 to let that in. I'm not saying at this point that 25 I would permit those other employers or persons 310 1 he's contracted with to come in and say that's all 2 right with them. They did not care that he did 3 that. 4 If the defendant testifies and wants 5 to say what was in his mind at the time and based 6 on prior contracts he's had with others or 7 employment practices, that sort of thing, I'd 8 likely permit that. But other persons who, after 9 the fact, now that he's charged with a crime, want 10 to come in and now say on similar occasions in the 11 past that was fine with them that he cracked their 12 computer password files, that was okay, I likely 13 will not permit that. That's my ruling on that. 14 Number two, defendant's 15 participation in the Kids'S project. What's that? 16 MR. TINTERA: Your Honor, defense 17 provided a report that referenced the defendant 18 putting together some sort of -- some sort of 19 project involving children for -- as a public 20 service-type thing. I can't see how that's 21 relevant to what his activities were at the Intel 22 Corporation. 23 THE COURT: Mr. Sussman. 24 MR. SUSSMAN: Your Honor, the -- 25 that was included in the statement of the witness 311 1 who we intend to offer as a character witness who 2 we expect to testify as to Mr. Schwartz's character 3 and integrity and honesty. 4 THE COURT: That likely will be 5 permitted, but what about the facts, the specifics 6 of things that he's -- 7 MR. SUSSMAN: That was -- that was 8 background information indicating how he knew 9 Mr. Schwartz. 10 THE COURT: You don't intend at this 11 point to offer evidence that he was involved in 12 this Kids' project specifically, do you? 13 MR. SUSSMAN: We intend to ask the 14 witness the question, "How do you know 15 Mr. Schwartz," and we think he's entitled to 16 explain that this is the context he knew 17 Mr. Schwartz, that he worked with him in a certain 18 capacity or that -- whether it would be work or in 19 this particular area, how he got to know him, and 20 based on that knowledge, he has an opinion. 21 I think it's a legitimate basis for 22 the witness to testify as the basis for the 23 witness' opinion, simply as a foundation and 24 background of how he knows the witnesses and in 25 what context. 312 1 THE COURT: We can limit that to 2 business matters or casual friendship 3 relationships, that sort of thing. He's worked 4 with him on computers. Do we have to get involved 5 in specifically what they did? What does that add 6 to the character evidence? 7 MR. SUSSMAN: Because it allows the 8 jury to weigh -- to evaluate the weight to be given 9 to the testimony. If we simply say, "I know this 10 is somebody I've known on a friendly basis for, 11 say, ten years," and it can be no more specific 12 than that, in terms of explaining the context, 13 then, we have an opinion and with the jury left 14 wondering where does that come from? What's the 15 basis? How do you know that this person really is 16 an honest person? 17 THE COURT: Frequently, though, we 18 require that opinions simply be given. That the 19 side offering the opinion does not -- is not 20 permitted to go into substantial detail and the 21 information taken into account drafting the 22 opinion. If the other side wants to get into it 23 and open the door to that, that's fine. Why is 24 this any different? 25 MR. SUSSMAN: Your Honor, I think 313 1 that the defendant is entitled to offer evidence of 2 character of the accused for pertinent traits which 3 are at issue in the case. His character for 4 honesty, integrity is one of those character traits 5 that's at issue here, and where that character 6 trait is at issue, then we believe that the case 7 law permits us to get into some specifics and some 8 explanation of the basis for the witness' opinion 9 as to that character trait. 10 THE COURT: Mr. Tintera, anything 11 further on that? 12 MR. TINTERA: No. 13 THE COURT: Assuming that character 14 evidence is admissible, I will allow the witness to 15 state the witness' opinion or that the witness is 16 aware of the person -- of the defendant's 17 reputation in the community and some general 18 information about the types of activities that the 19 defendant was involved in and how it is that the 20 person knew the defendant, I guess is what I'm 21 saying. 22 The fact that he may have been 23 involved in a specific project with him, like a 24 kids' project, goes too far. It's not relevant. 25 It's exactly the type of thing that we try to draw 314 1 the line on, because eventually, it does become 2 prejudicial; that is, that the jury gets the 3 specific information about these sorts of things 4 that are either good or bad that can cause them to 5 reach a verdict on an improper basis. So the type 6 of detail outlined here that the defendant 7 participated with some of these people in a project 8 known as the Kids' project, at least that latter 9 part, as far as I'm concerned, is not relevant and 10 I'd exclude it. 11 I'm not saying they cannot testify 12 as to how they knew him and what the context was 13 generally, but I will not permit specifics. 14 Number three. 15 MR. TINTERA: Judge, a witness named 16 Rick Lahrson opined in his statement that basically 17 Boy Scout characterization of the defendant's 18 character, which I consider to be just not relevant 19 in regard to that particular opinion. 20 THE COURT: Mr. Sussman. 21 MR. SUSSMAN: Mr. Lahrson will 22 testify as to his opinion of his character. I 23 don't expect that we would ask him to specifically 24 state that Mr. Schwartz would not intentionally 25 harm. I'm not sure that that quite fits it, but -- 315 1 THE COURT: That's like asking him 2 whether the defendant -- "Do you believe that he 3 would intentionally commit a crime?" That's not 4 the kind of things -- 5 MR. SUSSMAN: Right. That's not the 6 thrust of the witness. 7 THE COURT: For what it's worth, 8 three is allowed. I'm not foreclosing all the 9 appropriate character evidence in the case, but 10 that sort of thing, that the defendant would not do 11 anything intentionally harmful, is allowed. 12 Number four. 13 MR. TINTERA: This once again comes 14 out of a report from Patrick Reilly. Seems to be, 15 I assume, Mr. Reilly is going to be testifying in 16 regards to character, his opinion as to 17 Mr. Schwartz's character. These are excerpts from 18 his report. It's a prophylactic motion to say, 19 well, if he's going to testify about character, 20 let's get within the rules of the evidence code to 21 do it, as opposed to his opinions. 22 THE COURT: Well, I'm sort of 23 surprised you're moving to exclude this. 24 MR. TINTERA: So am I. 25 THE COURT: Looks to me like a 316 1 statement by a co-worker that he thinks the 2 defendant may have done this. 3 MR. TINTERA: Yeah. I was just 4 reading this and -- 5 THE COURT: Nevertheless, I'll allow 6 your motion. 7 MR. TINTERA: Thank you, Judge. 8 THE COURT: It looks like an 9 opinion, just kind of an off-the-cuff opinion by 10 somebody with regard to your client. Is that 11 something you want to offer into evidence, that he 12 was too curious for his own good? I'd be surprised 13 if you're going to offer it. 14 MR. SUSSMAN: Too curious for his 15 own good. 16 THE COURT: Sounds like an admission 17 of some sort. You're not going to offer that and 18 I'm going to exclude that. 19 MR. SUSSMAN: I was less concerned 20 with that portion of it. The idea that the other 21 portion -- 22 THE COURT: The first part sounds 23 like what we got involved in in number one. 24 MR. SUSSMAN: Precisely. 25 THE COURT: Information that may be 317 1 relevant to your client's state of mind or intent 2 at the time that he was committing acts that he was 3 committing in this case. I've already ruled on 4 that. The statements that he was too curious for 5 his own good are not relevant and I'm excluding 6 that. 7 Number five, you agree with that. 8 Number six, the videotape prepared 9 by Andrew Johnson-Laird. What's the videotape? 10 MR. TINTERA: Well, that's the 11 problem. I haven't been given a copy. The history 12 of this is, I was told of this videotape a couple 13 weeks ago and that it was going to involve the 14 operation of the Internet. That sounded okay to 15 me. Marginally relevant. But if they want to do a 16 videotape of how the Internet operated, that was 17 all right with me. 18 Then I called last Friday, said I'd 19 like to come over and look at the exhibits, and the 20 videotape wasn't ready, and that's what I want to 21 see. That wasn't ready. Then, apparently on 22 Sunday, Sunday afternoon after I left the office, 23 they faxed me a transcript of the script of the 24 videotape and I read that Monday morning and the 25 script is just testimony of this Johnson-Laird. 318 1 It's his testimony essentially, not about the 2 Internet, but it's about this case, about how 3 things operated. 4 Essentially, they want to offer a 5 videotape as an exhibit, I assume, which I haven't 6 had an opportunity to see, which bothers me under 7 the discovery statute. They want to offer a 8 videotape presentation of their expert witness' 9 testimony and send it back to the jury. We don't 10 do that in this case. They don't get a transcript 11 of the testimony. If they're going to do that, 12 they put him on the witness stand and he's asked 13 questions and I'm able to object to the questions, 14 the form of the questions, whether the questions 15 are relevant or not. 16 And that's essentially my objection. 17 It's two-pronged. 18 THE COURT: Additionally, you have a 19 chance to cross-examine occasionally and 20 occasionally you exercise that right to 21 cross-examine. 22 MR. TINTERA: That's true. 23 MR. SUSSMAN: Let me address the 24 issue of the availability of the tape. 25 THE COURT: That's a discovery 319 1 matter. Let's go over -- I don't worry too much 2 about that yet. Let's decide whether or not it was 3 discoverable, whether or not I would let it in. 4 MR. SUSSMAN: Your Honor, the tape 5 takes about 20 minutes. 6 THE COURT: What is it? 7 MR. SUSSMAN: It was prepared by 8 Mr. Johnson-Laird, who is our expert, who will be 9 talking about specific issues in the case as far as 10 how matters relating to the operation of the 11 Internet, matters such as what are firewalls, 12 how -- 13 THE COURT: Is Mr. Johnson-Laird 14 going to testify here? 15 MR. SUSSMAN: Yes. And how 16 computers are set up, what are computer report 17 addresses. 18 THE COURT: Why can't he testify to 19 the things that are on the tape? 20 MR. SUSSMAN: The reason we had the 21 tape prepared is that the tape uses graphics and 22 animation in a way that makes -- 23 THE COURT: Like cartoon characters, 24 you have Roadrunner and things like that? 25 MR. SUSSMAN: Unfortunately, there 320 1 was copyright problems with us getting Roadrunner 2 on there. 3 THE COURT: Anything on the tape 4 that you couldn't have here in court? 5 MR. SUSSMAN: The point of this was 6 for the tape to present some basic technical data 7 to the jury that would be presented in a very 8 straightforward way that was not testimony about 9 issues in the case, but describe matters -- 10 describes basic information involving computers, 11 Internet computer systems, how computers 12 communicate that can be very -- as we have gone 13 through the motion in this case, can be very 14 confusing issues. 15 THE COURT: Sure. I'll be the first 16 one to say that. Again, I don't understand why 17 your witness can't say that. If it's admissible on 18 the tape, certainly he would be permitted to say it 19 on the stand. 20 MR. SUSSMAN: Because we think the 21 tape is a simple, direct and very effective way to 22 communicate with using the combination of 23 voice-over and the animation that you can't 24 necessarily capture in simply testimony off of the 25 stand that explains very basic concepts which the 321 1 jury will need to understand in order to go to the 2 next step in understanding what the witnesses have 3 been talking about, what were we talking about when 4 we describe events in the case, and does it in a 5 way that aids the key testimony in the case, which 6 is the -- how were these things being applied? How 7 were things actually working in this particular 8 case. 9 The tape does not, in fact, address 10 the specifics of Intel systems, what Mr. Schwartz 11 did to the Intel systems. Talks in generic terms 12 about Internet, about how computers communicate, 13 about what firewalls are, what programs are that 14 allow people through firewalls in the gate program, 15 and then describes what a crack program is, and 16 then illustrates during the description of this 17 the -- illustrates it in a way which makes the 18 statements, the words, themselves, a good deal more 19 meaningful and understandable to the jury. 20 I would commend to the jury the 21 comments from the Uniform Trial Court Rules which 22 made some changes to 3050 which the committee, in 23 talking about the use of demonstrative evidence, 24 indicated that the rules were changed to facilitate 25 the use of exhibits like diagrams, photographs or 322 1 other demonstrative evidence and exhibits in a 2 manner that would facilitate fact-finder's 3 understanding of the evidence. 4 This was done precisely for that 5 purpose, and we tried very hard to make sure that 6 we stay away from talking about -- that it was done 7 in an informative manner that would be the basis 8 for the more substantive -- the rest of the 9 testimony and would facilitate that and make it 10 more understandable. I think if the Court has any 11 reservations about that, you could take a look at 12 it. 13 THE COURT: What I need to do is 14 take a look at that. I'd ask counsel not to refer 15 to its existence on opening statements until I've 16 had an opportunity to look at it and -- you haven't 17 seen it, either? 18 MR. TINTERA: That's the problem. 19 This is a new statute. This is the first trial of 20 this statute in this county. This case has been in 21 existence for over a year and a half and it's just 22 not fair. 23 THE COURT: I haven't overlooked the 24 discovery issue. 25 MR. TINTERA: For me to be able -- 323 1 I'm going to be on thin ice many times during this 2 trial. It's just not fair for them to produce this 3 piece of evidence, which is not neutral, it is very 4 adversarial of their position, but also not fair 5 for them to be springing on me during trial and I'm 6 supposed to be able to respond to this. It's not 7 timely. 8 THE COURT: Why the late offer of 9 this? Why the late disclosure of this, 10 Mr. Sussman? 11 MR. SUSSMAN: We informed 12 Mr. Tintera about a month ago, when I sent my 13 initial witness list in early June, that we 14 intended to offer a videotape. At that time, the 15 tape had not been produced. It's not an 16 inexpensive matter, as in terms of the cost to 17 Mr. Schwartz. 18 We could not get it done earlier 19 because, as the Court may recall, 20 Mr. Johnson-Laird, our expert who was involved in 21 this, was out of the country for approximately six 22 weeks prior to that time and did not get back until 23 just after we had done our motions hearing. 24 Additionally, we had some concerns 25 about whether or not -- 324 1 THE COURT: I'll cut you off here. 2 Dawns on me for either purpose, I need to see the 3 tape. Then, Mr. Tintera, if he wants to move to 4 exclude it based on discovery violation, and I 5 think he does, then I have to go through the 6 analysis that's required by statute and case law in 7 determining whether something less than exclusion 8 is appropriate. If there has been a violation, 9 what's the appropriate form of sanction, such as a 10 delay, an opportunity to give the State an 11 opportunity to consult their own expert, I guess, 12 make their own videotape, whatever, all those sorts 13 of things. 14 But I can't do that in a vacuum and 15 I want to see the tape. I want to see the tape. I 16 want to have an opportunity to have more complete 17 argument on all of this with regard to discovery 18 violations. If there is a violation, whether or 19 not there is an appropriate sanction other than 20 excluding the evidence, and then also whether or 21 not -- if it is not a violation of the discovery 22 statutes, whether or not it's demonstrative 23 evidence that ought to be permitted to be 24 introduced in this case and whether or not it's 25 something other than demonstrative evidence. 325 1 Whether or not it is relevant, all those sorts of 2 things. I can't do that yet. I want to see it. 3 I'm going to delay or defer ruling 4 on this point until I've had an opportunity to see 5 it. I don't want counsel referring to the fact of 6 a video or its existence until I rule. 7 Anything else? 8 MR. SUSSMAN: I simply want to 9 clarify for the record, I did not get this tape -- 10 which is still not in its final, complete stage 11 because of some problems with the animation -- 12 until Sunday. And as soon as I received the tape 13 and the transcript of the narrative of the tape, I 14 immediately faxed a copy of that to Mr. Tintera's 15 office. 16 I'm sorry, I got the transcript on 17 Sunday and was told that it wouldn't be -- that I 18 expected to have it then for the first time. It 19 arrived in my office yesterday morning in this 20 form. 21 THE COURT: The tape? 22 MR. SUSSMAN: The tape, yesterday 23 morning at approximately 20 after 11:00 or 11:30, 24 and I immediately called Mr. Tintera to tell him I 25 had this and it was not the final copy and I only 326 1 had the one copy. I could try to make it available 2 that afternoon. He suggested just bring it in the 3 morning. 4 So I have seen this for the first 5 time, myself, yesterday afternoon, and I've brought 6 it today so that -- we don't even have the final 7 copy of it. This is essentially enough for you to 8 make -- the changes after this will not be in any 9 substance to what is said, it's just in terms of 10 some -- there is just some graphics that are being 11 apparently fixed because that is a process that 12 takes, apparently, an hour for each minute of the 13 tape, and so it's a long process if there is a 14 small matter, a short portion of the tape to make 15 those corrections. 16 But the substance of what we will be 17 seeing is available and should be sufficient for 18 disclosure and for the Court to get a clear picture 19 of what we're offering, what we intend to offer. I 20 can also make a copy of the transcript available to 21 the Court so you can take a look at that. 22 THE COURT: I'd like to see that as 23 soon as possible. 24 MR. SUSSMAN: Your Honor, 25 Mr. Johnson-Laird would not be scheduled to testify 327 1 until next week, so there would still be at least a 2 week before Mr. Johnson-Laird testifies, for the 3 State to view this tape and prepare its response. 4 THE COURT: It's all good argument, 5 but I'd like to hear that later and after I review 6 the tape. I've deferred that. 7 Seven, whether the computers -- This 8 is, apparently, evidence that we have touched on 9 before. It would be offered by the defendant to 10 show his state of mind or intent or lack of intent 11 in this particular case. Is that what you would 12 offer it for? 13 MR. SUSSMAN: That's what it will be 14 offered for. 15 MR. TINTERA: This is nothing more 16 than opinion as to -- this evidence may be relevant 17 in regard to the defendant testifying, but -- 18 THE COURT: You're talking about 19 third parties. 20 MR. TINTERA: Yeah. That happened a 21 lot during the omnibus hearing, and I understand we 22 approach an omnibus hearing a little differently 23 and I didn't object, but seems to me in front of a 24 jury, this is an improper opinion or improper 25 evidence as to the people opining whether if he 328 1 wanted to, he could do A, B, C or D. If the 2 defendant chooses to testify and tell the jury if 3 he wanted to do A, B, C, D, that's a different 4 question. But to have other third parties say he 5 could do this if he wanted to, I can't see how they 6 are able to offer those particular opinions. 7 MR. SUSSMAN: Your Honor, again, 8 circumstantial evidence as to the state of mind, 9 that is just a basic element of the State's 10 charges. If the State is coming forward and 11 charging that Mr. Schwartz did an activity running 12 the Crack program under circumstances that showed 13 he intended to commit theft, that -- with the 14 intent to commit theft of a password -- 15 THE COURT: You want to bring in 16 evidence that they don't necessarily show -- 17 MR. SUSSMAN: Precisely. 18 THE COURT: I think it's relevant. 19 MR. TINTERA: For other people to 20 testify to that? 21 THE COURT: Well, as to the extent 22 to which I'll allow them to testify -- their actual 23 observation and knowledge of his expertise, when 24 does opinion get into fact? Which came first, the 25 chicken or the egg? But people who have worked 329 1 with him are knowledgeable about his expertise in 2 the computer field and have observed his work and 3 seen his product and that sort of thing, they could 4 testify as to his abilities, I think. I don't know 5 whether that's opinion or fact. Sounds much more 6 on the fact side of the line, in my mind, than it 7 is opinion, and I'd permit that. 8 That obviously ultimately will be 9 one of the big issues in this case. I may be 10 wrong. There hasn't been a partial admission of 11 anything in this case, but seems from what I have 12 heard so far, it may not be a big dispute as to the 13 facts really involved in this case. Inferences to 14 be drawn from the facts are really the big issue 15 here. 16 Let's go to Mr. Sussman's, the one 17 that's entitled, "Defendant's motion in limine to 18 exclude any or all testimony of work by 19 non-testifying experts." 20 MR. SUSSMAN: That was referring to 21 Mr. Brooks, Dennis Brooks, who will be helping me 22 during the jury selection process. I will 23 introduce him to the Court, simply saying he's 24 assisting the defense, but ask -- not suggesting 25 that any further comment about we may have an 330 1 expert here to assist the defense, suggesting that 2 the jury draw any inference from that. We ask that 3 no such comments be made. 4 I'm not suggesting that Mr. Tintera 5 has indicated that he would, but I think I just 6 want to bring that to the Court's' attention. We'd 7 ask that since Mr. Brooks was going to be here 8 sitting at counsel table and assisting -- 9 THE COURT: That's for the purpose 10 of picking the jury, that's what he's there for? 11 MR. SUSSMAN: That's correct. 12 THE COURT: Mr. Tintera. 13 MR. TINTERA: When I read this, I 14 didn't know what the heck they were talking about. 15 I appreciate the explanation now. Am I going to 16 comment about that? Not intentionally. 17 THE COURT: What you're saying is in 18 the heat of the moment in final argument, you may 19 slip up and say something about it. I'd suggest if 20 you do, you ought to ask to be heard at the bench 21 here before you do it. 22 MR. TINTERA: I don't anticipate 23 getting into that. 24 THE COURT: Thank you. We don't 25 have a problem with that, then. The State doesn't 331 1 intend to do that. Before they do, they shall 2 explain to us why it's appropriate. Otherwise, we 3 won't do it. 4 Now, the defendant's motion in 5 limine to exclude testimony and limit argument, 6 number one. There are three parts to this. I've 7 numbered them. "Exclude testimony which the State 8 may attempt to introduce in evidence at trial that 9 the defendant possessed stolen passwords or 10 password files from Intel and prohibiting any and 11 all mention of or reference thereto in the presence 12 of the jury in this case upon the grounds that" -- 13 we're talking about password files. 14 MR. SUSSMAN: Actually, let me 15 clarify. During the testimony in the omnibus 16 hearing, some of the witnesses characterized the 17 password and password files that Mr. Schwartz was 18 working on as "stolen password, stolen password 19 files." We have no problem with the reference to 20 the "password" and "password files." But the 21 characterization of the witness by them as "stolen" 22 is what we object to and ask that the witnesses be 23 directed not to character -- 24 THE COURT: Characterize them as 25 stolen password files. 332 1 MR. SUSSMAN: That's right. 2 THE COURT: Because that's one of 3 the questions that the jury will have to answer. 4 MR. SUSSMAN: Precisely. 5 THE COURT: Mr. Tintera. 6 MR. TINTERA: Well, they are stolen. 7 If we are talking about horses, could we not call 8 them horses? We could call them stolen horses. 9 Horses that are not there, they were stolen. 10 That's what we're talking about. 11 THE COURT: If and when he's 12 convicted, then you can call them stolen. 13 MR. TINTERA: Not from my witnesses, 14 though. This is how my witnesses look at things, 15 that he stole the password files from Intel. This 16 is -- I can't guarantee -- this is the way they 17 look at it, that he stole what was not his. 18 THE COURT: I'd like to have you 19 have a chat with them and have them remove from 20 their vocabulary and when they testify to reference 21 of password or password files, their conclusion is 22 he's already guilty and that he stole them, and I'd 23 appreciate it if you would do that. If the jury 24 convicts him, then everybody can refer to them as 25 stolen files. 333 1 Number two, characterizing what they 2 said as confessions. Can't we just refer to them 3 as statements? I think it's the legal issue as to 4 whether or not they rise to the level of 5 confessions. 6 MR. TINTERA: True. And if counsel 7 is willing to concede and not argue that those are 8 confessions in regard to jury instructions, I'm 9 more than willing to ask my witnesses to not refer 10 to the defendant's statements that implicate 11 himself as confessions. 12 THE COURT: I'll decide what 13 instructions are going to be given. I'll wait 14 until I've heard all the evidence. I've been very 15 sensitive about -- in the past about characterizing 16 statements by defendant as simply as confession or 17 admissions made by the defendant, and that is a 18 decision that will have to be made before I 19 instruct the jury. 20 I think it would be inappropriate, 21 though, for witnesses to testify that the defendant 22 confessed, when in fact what they mean is he made a 23 statement that they may believe in some fashion 24 incriminates him. The fact that they say the word 25 "confess" conveys to the fact-finder something 334 1 entirely different than simply telling them what he 2 said. 3 So I'd like -- and I am going to 4 rule that the witnesses will simply limit what they 5 say about any statements made by the defendant, to 6 the fact that he made statements and the words that 7 he used. Unless he used the word "confess," I'd 8 like not to hear that during the testimony. 9 MR. SUSSMAN: As far as argument, 10 certainly Mr. Tintera may argue it in closing, but 11 not before then. 12 THE COURT: Sure, he can do it 13 during that, and I may instruct the jury as to 14 confessions if they find a confession has been 15 given. We'll wait until the end of the case to 16 characterize statements. Thank you, Mr. Tintera. 17 Number three. Now, I'm -- this has 18 to do with nude and sexual photographs. I didn't 19 know this was involved. This is a different case 20 than I thought. What's this all about? 21 MR. SUSSMAN: Well, Your Honor, 22 Mr. Tintera, approximately ten days ago, informed 23 us that stored in the memory of -- stored in the 24 files on one of the computers that Mr. Schwartz had 25 on site at Intel, files were frozen and the records 335 1 were maintained by Intel and when they did their 2 investigation, there was a file that contained the 3 downloaded data from a news service that 4 included -- that was specifically, that 5 specifically had photographs of sexual -- of a 6 sexual -- of sexual nudity, of a sexual nature, and 7 Mr. Tintera informed us that he may offer those 8 photographs during the course of the trial. And 9 what he showed us were the photographs that were 10 then reproduced from the data that was stored in 11 the computer, and it is our position that this 12 data, which was downloaded from an Intel 13 information system called News Net, which connects 14 to the news services' ability to go around the 15 world, and that was -- that the photograph, 16 introduction of the photographs, themselves, are 17 not relevant to any issue in the case. And to the 18 extent that they may be relevant to any issue which 19 the State, in its fertile imagination, can argue 20 are, that the prejudicial value, the prejudicial 21 nature of those photographs far outweigh any 22 relevance. And if there is relevance, that the 23 relevance can be established by a more limited 24 means that is not so prejudicial. 25 The photographs, themselves, in 336 1 offering these things, would require a considerable 2 amount of additional court time to explain how the 3 system worked, how stuff was downloaded, why you 4 may have large bits of data there that includes all 5 kinds of things that Mr. Schwartz may or may not 6 have been looking for. But to simply say here is 7 all the stuff that was here and some of the stuff 8 can look bad, some of it can look much less bad, 9 depending on the eyes of the beholder, but the 10 photograph, offering the photographs, themselves, 11 basically seems to have the primary effect of 12 attacking us, kind of smearing his character in a 13 way which is not relevant, and it would not be 14 appropriate response to any character evidence that 15 the State would be offering. 16 THE COURT: Mr. Tintera, do you 17 intend to offer these? 18 MR. TINTERA: Yes, Your Honor. The 19 defense in this case is that the defendant, in his 20 Boy Scout activity at Intel, only had Intel's 21 interest in mind. The fact of the matter is, 22 that's not true. He had his own interests in mind 23 and his alone. 24 Intel happened to be paying him an 25 awful lot of money, but he didn't necessarily have 337 1 their interests in mind. These photographs are not 2 unduly prejudicial. They don't involve, except for 3 one with snakes, any animals. They are all human 4 beings. 5 THE COURT: Snakes? 6 MR. TINTERA: They do involve 7 activity both between males and males and males and 8 females and sexual conduct, but I think that 9 although I would agree, as I view my case in chief, 10 that they're not relevant, I think through the 11 course of the trial, based on what I've seen in 12 regard to the character witnesses and how they -- 13 how the defense wishes to portray Mr. Schwartz in 14 front of the jury, that these are going to be very 15 relevant. 16 As I told defense counsel, you will 17 open the door to the admissibility of this 18 evidence, and if the Court -- this is State's 19 Exhibit 13, and it contains the photographs that 20 the defendant will make relevant. 21 THE COURT: I'd like to handle this 22 item, this exhibit, this matter in the motion in 23 limine in the following way. Because Mr. Tintera 24 has indicated that he believes that it's likely 25 that it will be relevant during the State's 338 1 opportunity for rebuttal after the defense case, 2 I'd like to wait and rule on it at that time again. 3 I don't know about all the evidence, and it's not 4 appropriate that I would, as you gentleman do. How 5 that may be relevant, to me at this point, is a 6 stretch. It may become obvious during the case and 7 it may not, but I'd like to wait until I know what 8 the evidence is before I rule on that. 9 So with this matter, like one or two 10 of the other matters I've ruled on, I'm going to 11 withhold, reserve ruling on the admissibility and 12 my order will be that there won't be comment about 13 it or disclosure of the evidence to the jury until 14 the State notifies me in advance that they believe 15 it is now admissible and I can rule on that finally 16 outside the presence of the jury. I don't think by 17 delaying my ruling on that until later on in the 18 case really prejudices anybody. 19 That's my ruling on that. I'll 20 reserve that. 21 Anything else? 22 MR. SUSSMAN: Your Honor, there was, 23 as I mentioned earlier, in the earlier motion in 24 limine that was apparently not decided at the 25 omnibus hearing. 339 1 THE COURT: That was a motion in 2 limine, not a motion to suppress. 3 MR. SUSSMAN: It was in addition to 4 the motion to suppress. 5 THE COURT: I may have overlooked 6 that. If I did, I apologize. 7 MR. SUSSMAN: I'm afraid I 8 overlooked bringing it to your attention at the 9 time. 10 THE COURT: Let's look at it here. 11 If it's appropriate for me to rule on now -- 12 MR. TINTERA: I have a copy that you 13 can make a copy of. 14 THE COURT: You haven't highlighted 15 or written your editorial remarks? 16 MR. TINTERA: No. It's 17 unhighlighted. 18 THE COURT: Do you have another one? 19 MR. TINTERA: No, I don't. 20 THE COURT: You don't want to get up 21 here and read it with me on the bench here, do you? 22 MR. TINTERA: Only if the jury is 23 present. 24 MR. SUSSMAN: It would assist you if 25 you had a copy of the motion. 340 1 THE COURT: I have the memorandum. 2 MR. SUSSMAN: At the end of the 3 memorandum is an appendix. 4 MR. TINTERA: Actually, that may not 5 be the actual motions. I have the appendix and it 6 is all marked up. 7 MR. SUSSMAN: All right. I have an 8 unmarked copy of the appendix, and let me ask you 9 to take a look at that. That was the appendix to 10 the memorandum and that appendix specifically 11 refers to the statements that we are asking that 12 the Court consider for purposes of the motion. 13 THE COURT: Statements made to 14 Detective Lilley, Detective Lazenby and Rich Cower, 15 or more appropriately, statements allegedly made. 16 MR. SUSSMAN: That's correct. 17 THE COURT: You're moving to exclude 18 many of these, apparently, or part of them; is that 19 right? 20 MR. SUSSMAN: That's right. 21 THE COURT: Let's take them from the 22 top, then. 23 Lynda, we have the jury waiting. 24 Turn them loose and tell them to come back at 1:30. 25 "During the time he was employed at 341 1 Tektronix, Mr. Schwartz had actually been suspended 2 for engaging in similar activities or other 3 references to activities while employed at 4 Tektronix." You're moving to exclude this as 5 improper character evidence, not admissible under 6 403, is that it, Mr. Sussman? 7 MR. SUSSMAN: And as prior uncharged 8 misconduct. 9 THE COURT: Mr. Tintera. 10 MR. TINTERA: Well, Judge, seems to 11 me that the defense wants it both ways. First, 12 they want to exclude the fact that he has been 13 engaged in similar activities at Tektronix on prior 14 employment, but yet they want to call it character 15 evidence to say that this is -- he has been 16 referenced high in integrity and truthful -- 17 THE COURT: I'll interrupt you 18 again. I understand your argument. Any ruling I 19 make at this point would be just as to whether or 20 not this evidence is admissible in your case in 21 chief. 22 MR. TINTERA: Okay. I had put in 23 the margins that was fine. I can agree not to 24 reference that. 25 THE COURT: Because I'll have to 342 1 wait, obviously, Mr. Sussman, until I see what the 2 defense evidence is to finally rule on some of 3 these, because it may be that I'll change my mind 4 after having heard the defense evidence on some of 5 these. It may be required that the State be 6 permitted to produce it. I'm not saying it is, but 7 I need to have all the preliminaries in order to 8 make the decision. 9 At least on this one, number one, 10 I'll wait until I've heard the defense. But, 11 again, when I do that, it's a part of my ruling 12 that there not be reference to it, testimony about 13 it, or I've told they've -- I've had an opportunity 14 to rule on it. And the State is willing to give me 15 that opportunity outside the presence of the jury? 16 MR. TINTERA: Sure. 17 THE COURT: How about number two? 18 MR. TINTERA: Same response on my 19 part. 20 MR. SUSSMAN: Your Honor, I'm sort 21 of at a disadvantage. You have my only copy. 22 THE COURT: You have that, the 23 appendix? 24 MR. TINTERA: I do. I'll wait until 25 counsel gets a copy. 343 1 MR. SUSSMAN: Since Mr. Tintera's 2 copy was marked up, I tend not to look over his 3 shoulder. 4 THE COURT: It might be helpful. 5 MR. TINTERA: Did you get my letter 6 that I sent you last week? 7 THE COURT: Letter about the late 8 discovery? 9 MR. TINTERA: Yes. 10 THE COURT: Yes, I did. 11 MR. TINTERA: I wanted to make sure. 12 I -- 13 THE COURT: I noticed you weren't 14 making a request for admonition or sanction. 15 MR. TINTERA: I was not. 16 THE COURT: You just want the record 17 to be complete? 18 MR. TINTERA: I did. 19 THE COURT: I have that. 20 Number two, State takes the same 21 position, that you're not going to offer that? You 22 don't intend to offer it? 23 MR. TINTERA: Yeah, if they object 24 to that he illegally cracked password files and 25 while he was employed there. That's fine. I won't 344 1 offer that in my case in chief. 2 THE COURT: What about three? 3 MR. TINTERA: I think that's 4 relevant. The State has to prove an improper 5 motive in regard to him stealing the SSD password 6 files, and I think when he tells the police that 7 he's thought about espionage and he wondered who he 8 could sell espionage to and things like that, I 9 think that's the kind of stuff that the jury ought 10 to be hearing. 11 THE COURT: Mr. Sussman. 12 MR. SUSSMAN: Well, Your Honor, the 13 problem we have is that the context of the 14 statements were that that was a response to 15 questions by Tektronix as to whether or not he had 16 ever considered that, and it was in context of the 17 discussion of what he considered in the course of 18 doing his work. That was in response to questions 19 that were initiated and imposed by the detectives 20 and -- 21 THE COURT: Was it with reference to 22 what he did in this case or just in general? 23 MR. SUSSMAN: Just in general. This 24 is in terms of something, whether he has ever 25 speculated about this or thought about it or 345 1 fantasized about it, and it was not asking him 2 whether he had considered it or taken any steps or 3 thought about doing it in this particular instance. 4 THE COURT: Well, Mr. Tintera, I'm 5 going to rule similarly like I did on one and two. 6 I can understand circumstances where that might be 7 relevant in rebuttal, but I'm going to -- I don't 8 think it's admissible. It's just other uncharged 9 acts, apparently, that are referred to. Or at 10 least the context of the statement seems to 11 indicate that it's not limited to this particular 12 case, but to other situations whether or not he's 13 ever had those sorts of thoughts or fantasies. So 14 I'm going to rule that it's not admissible, at 15 least initially. 16 Four. "Mr. Schwartz discussed his 17 ideas about where in Intel the latest chip design 18 might be occurring." 19 MR. SUSSMAN: Again, this came up in 20 the context of where he was questioned in terms of 21 whether he had ever considered industrial 22 espionage. And then the questioning, according to 23 the police reports, followed with Mr. Schwartz 24 being asked if he knew where specific secret 25 information or high proprietary information might 346 1 be located, and there was a comment in Rich Cower's 2 report, in fact in his testimony, that he responded 3 incredulously, in fact, saying something like he, 4 responding to the -- the answer that he got, "He 5 can't think we're that stupid." This is what he 6 thinks, in response to speculative questions as to 7 where things might be. 8 THE COURT: Mr. Tintera. 9 MR. TINTERA: I must have 10 misunderstood. I thought we were talking about 11 Detective Lilley now. 12 MR. SUSSMAN: Those were statements 13 made to Lilley and Cower at the same time. 14 MR. TINTERA: Are we talking about 15 Lilley and Cower? 16 THE COURT: Right now Lilley. 17 MR. TINTERA: I can agree that I 18 won't offer this evidence through Detective Lilley. 19 MR. SUSSMAN: Does that mean you 20 will try to offer it through another witness? 21 MR. TINTERA: Yes. 22 THE COURT: Let's go through these 23 one at a time. We'll get to Mr. Cower. 24 Detective Lazenby, "Mr. Schwartz was 25 caught using the gate-type program on a computer 347 1 named Mink, transferred it to the Hermeis and back 2 to Mink, but was caught again so went to Brillig." 3 This is objection to the use of the word "caught." 4 MR. TINTERA: He was caught, Judge. 5 What the defense wants us to do is use all these 6 neutral terms. This is not neutral conduct. The 7 defendant was violating Intel policy by putting 8 this Gate program on the various Mink and Hermeis 9 and Brillig computers that allowed both his -- to 10 go out from Intel, but for anyone else, for that 11 matter, to come into Intel through the firewall. 12 He was caught doing that. 13 THE COURT: I assume that during 14 some point during the State's case there will be 15 some evidence that at least people at Intel 16 thought -- those initiating the prosecution thought 17 he shouldn't be doing this, right? 18 MR. TINTERA: Yes. 19 THE COURT: I guess we could change 20 the word to "discovered," but you're suggesting 21 that the word "caught" doesn't necessarily carry 22 with it prejudicial inferences; is that right? 23 MR. SUSSMAN: That's correct. We're 24 saying that's not -- the report doesn't say that 25 those were Mr. Schwartz's words. They are 348 1 Detective Lazenby's characterization and they are 2 an inflammatory, prejudicial characterization which 3 I think is uncalled for. 4 THE COURT: Well, when Detective 5 Lazenby testifies about statements made by the 6 defendant, he should as closely as possible use the 7 words used by the defendant. 8 MR. TINTERA: I can agree to that. 9 THE COURT: If the defendant used a 10 word that he got caught doing this, then that's 11 admissible. If the words are something different 12 than that, then I'd like not to hear Lazenby's 13 summary of it but what the defendant actually said. 14 That's my ruling on that. If the 15 defendant said "caught" and -- that he got caught, 16 then that's going to be the evidence. 17 Number two, "Mr. Schwartz discussed 18 the use of the Crack program on the O'Reilly 19 system." Didn't we already talk about this? 20 MR. TINTERA: Yes. Judge, it's my 21 position that this comes in. It is a 22 contemporaneous discussion when the police are 23 asking him about running the Crack program that 24 involves both the SSD Computer Division password 25 file, but also O'Reilly's password file that he had 349 1 imported into an Intel computer. 2 I believe that it goes both, as I 3 previously argued, to his intent in creating this 4 avenue of egress from Intel and their proprietary 5 information, but also goes to the defendant's state 6 of mind as to whether he was authorized in these 7 particular activities. Whether anyone with his 8 apparent expertise would know when you're employed 9 by a private corporation, to bring in other 10 password files from that particular corporation, 11 from a different corporation for your own personal 12 use in running a deciphering program is not 13 permitted. 14 I think that we can offer that as 15 legitimate evidence as to whether the defendant 16 knew that his activities were not authorized or 17 not -- or were authorized or were not authorized. 18 THE COURT: Mr. Sussman. 19 MR. SUSSMAN: Your Honor, -- 20 THE COURT: I guess the argument 21 here is two things. I'm trying to boil it down by 22 Mr. Tintera. One is that it is not evidence of 23 other bad acts, but it's conduct of the defendant 24 that he was performing or committing 25 simultaneously. 350 1 We're not talking about a precise 2 moment in time here, but conduct over a period of 3 time that he was involved with Intel's computers 4 and this conduct was being performed simultaneously 5 over that same period of time and so it's all 6 integrated in the same conduct. 7 Then he's made an argument, sounds 8 like, even if it is evidence of other bad acts, 9 it's evidence of intent, and if that is the 10 situation, then the Court has to go through a Johns 11 analysis in determining whether or not it's 12 admissible for that purpose. 13 MR. SUSSMAN: Your Honor, I was 14 starting to go -- if we accept that, the evidence 15 for that purpose -- we're prepared to accept that 16 and deal with that, but it presents a separate 17 problem that's not specifically related to this 18 motion, but it is in terms of our ability to 19 present witnesses who then allows us to explain and 20 respond to that evidence. And I suppose we can get 21 to that after we finish the motions in limine, but 22 it's a problem of availability of a witness to be 23 here in person, the witness at O'Reilly that would 24 testify completely to those contemporaneous events. 25 He is in Israel and is available not in body, but 351 1 otherwise. 2 THE COURT: Sounds -- That's a 3 concern. Sounds to me, from what I've heard now 4 and when we started, given to -- based on what I 5 believe counsel will tell me what the testimony 6 will be, the evidence that this is all done 7 simultaneously as a project by the defendant. 8 That's what the State intends to show. Even though 9 this was not Intel, it was a part of the same 10 factual scenario that he was involved in. If 11 that's the case and it's relevant, it's admissible. 12 And I think it is. 13 I'll deal with the question of the 14 unavailability of the witness. You have a witness 15 that wouldn't be available during the entire two 16 weeks? 17 MR. SUSSMAN: No, Your Honor. She 18 left in June for a six-week trip to Israel and 19 she's currently reachable in Jerusalem on certain 20 days and times where her testimony would be 21 available if we could take it by telephone. But 22 she cannot be here and will not be back in the 23 United States until long after the trial is over. 24 THE COURT: Have you talked 25 previously with Mr. Tintera about that possibility? 352 1 MR. SUSSMAN: We have, and we have 2 had some back and forth on that, Your Honor. And 3 we had proposed limiting the testimony to the 4 specific -- excluding some of the opinions kind of 5 evidence that we discussed in Mr. Tintera's earlier 6 motion and limiting it to the details of 7 Mr. Schwartz's connection to O'Reilly and the 8 running of this program. 9 Mr. Tintera, I have to say, was 10 reluctant in light of the -- his feeling about the 11 discovery issues raised in the letter, agreed to 12 take the testimony by telephone, at least in our 13 last conversation. 14 THE COURT: He's willing to revisit 15 that issue now, I'm sure. I don't know that he's 16 willing to agree, but he's willing to talk about 17 it, aren't you, Mr. Tintera? 18 MR. TINTERA: Well, Judge, the 19 history of this case has been the State has 20 cooperated as much as possible, and perhaps more 21 than we're required with the defense to give them 22 everything that we have on behalf of this case, and 23 I had assumed that was the attitude of the defense. 24 And that attitude -- I kept that attitude and 25 talked about perhaps taking this witness' testimony 353 1 over the telephone because she was out of the 2 country and with the defense being able to show me 3 what they were going to ask, I was agreeable to do 4 that. 5 Last week on Monday when the defense 6 counsel knew I was not going to be in the office, 7 they faxed over some new witness, and then on 8 Wednesday, they faxed over some more. I said, 9 "That's enough." I've been cooperative and this is 10 the week before trial in a case that's a year and a 11 half old. I started getting witnesses I've never 12 heard of and I decided I wasn't going to cooperate 13 in that regard because I was being taken advantage 14 of, and I'm still in that particular state of mind, 15 especially with this videotape. 16 THE COURT: I understand. Well, 17 I've indicated that I thought the evidence is 18 admissible. I would encourage everyone involved 19 here to try to work together. That means not delay 20 discovery. I'm going to be surprised if, in fact, 21 there was a delay in the discovery here, that 22 anything has been done intentionally, again having 23 worked with each of you counsel for a long time in 24 this case. I have an idea that what Mr. Sussman 25 says about the videotape is correct, that is, that 354 1 it was just completed and, of course, begs the 2 question about why it didn't get done earlier so 3 Mr. Tintera could have seen it earlier, but we need 4 to work through these issues. 5 If this evidence is going to come in 6 and there is a witness who is crucial to giving 7 information about defendant's permission to run a 8 particular program on the O'Reilly system, that if 9 that witness is unavailable, then the Court has to 10 consider the possibility of trying this case and 11 taking the testimony through some unusual form, 12 such as a deposition or telephone or the 13 possibility of delaying the case until the witness 14 is back in the country to finally get that 15 evidence, or some form of stipulation about what 16 the witness would say after counsel have had an 17 opportunity to talk with her, or the possibility of 18 just ruling as, I think, is probably consistent 19 with the law, and that is, if the witness wasn't 20 subpoenaed, the witness isn't here, we just go on 21 without the witness. 22 My goal in this case, as in nearly 23 every case, is to try to see that justice, in all 24 capital letters, is done and that means that 25 everyone get an opportunity to reasonably produce 355 1 every piece of evidence that's relevant to the 2 issues. This could be really extremely important 3 to the defense, and so I think that this is an 4 issue I'm going to have to take a look at. 5 I've indicated that this evidence 6 would be admissible, that is, that we have 7 discussed -- the defendant had discussed the use of 8 the Crack program on the O'Reilly system, and I am 9 going to rule in that fashion because it's an 10 integral part of what occurred in this case. The 11 availability of that witness is of concern to me 12 and I'll address that later on. I'd like to have 13 you gentlemen talk about that, see if you can 14 resolve it. If you can't, then I'll resolve it. 15 Number three. "Mr. Schwartz's 16 response that he understood when Detective Lazenby 17 told him that he may have committed a felony or 18 misdemeanor under state law, or if he used the 19 telephone, he may have committed a federal crime." 20 I'll cut right through that to say I 21 think the words that "he used" are admissible. As 22 to what interpretation you give to that word 23 "understood" is arguable. I expect if that 24 evidence comes in, I think it is relevant as to 25 what a reasonable inference might be drawn from his 356 1 use of the word "understood," that he acknowledged 2 that he knew that he had committed a crime. 3 Another inference that might be 4 drawn from that is that he understood what the 5 detective was telling him there might be others as 6 well. I think that's fair argument. His 7 statements including that word, I think, is 8 admissible, and that's my ruling. 9 Going to Rich Cower. Item number 10 one under Rich Cower's -- statements made to Rich 11 Cower. "Mr. Schwartz discussed running a 12 password-cracking program on password files at 13 Techbook com and ORA.com." 14 MR. SUSSMAN: Your Honor, I think 15 the Court has already ruled and related, the 16 State's argument, that this was integral to number 17 three and are contemporaneous and I would accept 18 that for purposes of this discussion. 19 THE COURT: Doesn't mean that you 20 concede that, just means that you accept that I 21 made that ruling previously and it will be similar 22 on this. 23 "Mr. Schwartz discussed the 24 assurance of...(Judge reading to himself)... 25 during his employment." 357 1 MR. TINTERA: That's the same as 2 Detective Lilley's number one, and I don't intend 3 to offer that evidence in my case in chief. If I 4 change my mind and think it's somewhat relevant, 5 I'll bring it up with the Court outside the 6 presence of the jury. 7 THE COURT: Thank you. 8 Three, "Mr. Schwartz responded to 9 the use of the term "hacking" respecting the 10 activities at issue." Responded to the use of a 11 word. Does that mean he used that word or somebody 12 else used it and he responded to it in some 13 fashion? 14 MR. SUSSMAN: Your Honor, I can't 15 remember the context of that. 16 THE COURT: Well, the word "hacking" 17 is about all I know about computers. I hear that 18 used all the time. Isn't that a word used 19 frequently to mean something about unpermitted 20 access to computer files? It has different 21 meanings. I think we'll just need to bring out 22 what the different meanings are. 23 I'm not going to exclude the use of 24 that word. The parties will have an opportunity, 25 if it has different meanings, to present evidence 358 1 of that and argue that later on. 2 Number 4, "Mr. Schwartz discussed 3 his thoughts on the subjects of industrial 4 espionage during the interview." Again, I think 5 that's one for after the defense case. And that 6 would be my ruling and we have made similar rulings 7 on similar sorts of evidence. 8 "Mr. Schwartz discussed his idea 9 about where in Intel the latest chip design may 10 occur." This is the one that when we were talking 11 about Detective Lilley, number four, said he 12 wouldn't offer through Lilley but he would offer 13 through Mr. Cower. So this is a statement 14 allegedly made to Mr. Cower by the defendant. 15 MR. TINTERA: Yes. 16 THE COURT: Your argument. 17 MR. TINTERA: I think this is 18 relevant. What was happening, in the discussion of 19 defendant's thoughts regarding espionage, he was 20 asked where the secrets of Intel, in regard to 21 their design, would be given or would be found. He 22 gave an answer that involved basically the shop 23 industrial computer, not the computers that were 24 used for their research and development. 25 Mr. Cower, I believe, should be able 359 1 to testify to that, because essentially what the 2 defendant was doing is trying to hide from the 3 investigators, based on his knowledge in working at 4 Intel for the last four years, was giving what 5 Mr. Cower would testify was basically ridiculous 6 answers based on his knowledge of having worked in 7 some of the higher tech research and development 8 areas, that the answer that he gave was -- well, he 9 would say ridiculous, but say something else in 10 front of the jury. If you asked him, that's what 11 he would say. Based on his knowledge, he would 12 definitely know where the most proprietary 13 information would be kept. 14 MR. SUSSMAN: Your Honor, I think 15 that -- our objection on that is that it was 16 based -- that it was part of the discussion of 17 theoretical thoughts of espionage, and so it 18 wouldn't be admissible on those grounds. If it is 19 admissible on the State's theory, Mr. Cower's 20 speculation as to what Mr. Schwartz should have 21 known, I believe, is not -- 22 THE COURT: Well, we're -- as we get 23 involved, then necessarily, it's debatable what's 24 opinion and what's fact. If Mr. Cower has 25 knowledge of what the defendant's duties have been 360 1 at Intel before, what sort of access he had before 2 and what knowledge he gained, then that sounds like 3 fact, not opinion. Just a bold statement that he 4 should have known is something that sounds like 5 opinion to Mr. Cower's testimony that he talked 6 with Mr. Schwartz and Mr. Schwartz said this, the 7 statements set forth in number five, what we talked 8 about, and then Mr. Cower can show that he has 9 actual knowledge of the information, the types of 10 information that the defendant had from his 11 activities at Intel, and I would permit Mr. Cower 12 to so testify. 13 That takes care of that. What else? 14 MR. TINTERA: Judge, there are times 15 in the trial when I may need some assistance in 16 regard to understanding what some of the answers 17 are from various witnesses and I'd ask the Court -- 18 THE COURT: Does that go for me, 19 too? Can I rely on somebody to help me? 20 MR. TINTERA: Yeah, we'll be able to 21 provide you with someone. 22 THE COURT: The defendant just 23 offered. 24 Let me suggest something to you. I 25 think I know where you're going. You may want to 361 1 consult with somebody from Intel. Does he have to 2 sit at counsel table or just to have a recess to 3 speak with them? 4 MR. TINTERA: Counsel table. 5 THE COURT: Assuming counsel can do 6 it in a professional manner -- I think you can -- I 7 wouldn't have a problem occasionally having someone 8 sit with you at counsel table to confer with so we 9 don't have to take constant recesses. That would 10 work for both sides, if you wish. You might let me 11 know in advance who it's going to be and why they 12 are there. 13 MR. TINTERA: It would be Rich 14 Cower, who is also one of my witnesses. 15 THE COURT: Do you have any 16 objection to that, Mr. Sussman? 17 MR. SUSSMAN: The question is when 18 Mr. Tintera intends on doing that? I think if he 19 intends to rely on Mr. Cower as an expert and have 20 him assist, I think he's legitimately able to do 21 that, having him assist, for instance, after he's 22 testified. But during the testimony of a defense 23 expert, the State may be entitled to have their own 24 expert sitting in the courtroom and evaluating the 25 testimony. 362 1 I can see the Court allowing it 2 under those circumstances, but Mr. Cower as a 3 witness to be sitting throughout the trial, I -- 4 THE COURT: Are you asking 5 throughout the trial or just -- 6 MR. TINTERA: Well, my initial 7 thought was during the defense case. Then I 8 thought, well, during cross-examination there may 9 be things that are being discussed, as we did 10 during the omnibus hearing, the Court, if you 11 remember, I had to interrupt during some of those 12 questions to get some explanation as what they were 13 talking about. I don't think that's necessarily 14 appropriate in front of the jury to do that, 15 although I don't mind doing it in front of the 16 jury. 17 MR. SUSSMAN: I would agree it's not 18 appropriate. 19 MR. TINTERA: However, my purpose 20 was to have Mr. Cower at hand in a certain 21 situation so that he could explain to me what it is 22 that's being asked or what it is that's being 23 answered. 24 THE COURT: Isn't Intel a victim? I 25 haven't looked at that statute for some time. 363 1 MR. TINTERA: It is. 2 THE COURT: Aren't they permitted to 3 have a representative in court? 4 MR. TINTERA: They are. 5 THE COURT: Do you want to designate 6 him as that person? 7 MR. TINTERA: If that's what it 8 takes to allow me to understand what some of these 9 questions and answers are, then yes. 10 THE COURT: Anything else on that, 11 Mr. Sussman? 12 MR. SUSSMAN: Well, Your Honor, as I 13 indicated, I think there are probably limited times 14 where that may be necessary, and I can certainly 15 see that being appropriate during the examination 16 in particular of the defense expert and I would 17 have no objection to that. 18 THE COURT: What about 19 cross-examination of State's witnesses by you where 20 we started getting into technical matters? 21 MR. SUSSMAN: The problem I have 22 with Rich Cower then being the expert to do that, 23 as opposed to somebody who is -- is that Mr. Cower 24 is one of the witnesses. 25 THE COURT: I understand that. 364 1 MR. SUSSMAN: And Mr. Cower's 2 testimony is critical in the case, and this is 3 precisely the kind of situation where the courts 4 have addressed the question of excluding witnesses 5 because there is a risk, danger that witnesses 6 sitting in there can tailor their testimony even 7 subconsciously in regard to that examination. 8 THE COURT: No question. What's the 9 statute that deals with victims being present in 10 the court? I haven't read that in a long time. 11 MR. SUSSMAN: It's OEC 615. 12 THE COURT: Isn't the victim in a 13 criminal case defined somewhere? I think it is. I 14 don't see that in -- I think that's defined in the 15 ballot measure, but I don't see it set forth here 16 in the Evidence Code. 17 Here is how I'm going to resolve 18 that. Maybe somebody can find the specific 19 provision for me. It does indicate -- I haven't 20 heard a motion to exclude witnesses yet, but 21 anticipating there is going to be one, is there 22 going to be a motion to exclude witnesses? 23 MR. SUSSMAN: Yes, Your Honor. 24 THE COURT: Then the Court has 25 discretion in balancing the good cause shown by the 365 1 objecting party against a policy favoring 2 exclusion. 3 Mr. Tintera, do I assume what you've 4 said about having Mr. Cower be available in this 5 case is an attempt by you to have some good cause 6 shown to the Court -- you're not giving me -- I 7 haven't asked for a full argument on this, but as I 8 recall, Mr. Cower is the Intel security person. 9 MR. TINTERA: Yes. 10 THE COURT: And from the testimony 11 previously that I've heard, in addition to being a 12 security person, he also seems to be very 13 knowledgeable in computer matters, that sort of 14 thing. 15 As I understand it, your request is 16 that when such technical matters are presented by 17 testimony of witnesses, that he be permitted to be 18 present much like you might ask in a particular 19 case to have an investigating officer, police 20 officer present in crucial parts of a case to hear 21 the testimony and then interpret that to you or 22 bring to your attention details. And when we do 23 that, of course, when that person is going to 24 testify, there is a risk, as Mr. Sussman argued, 25 that that person is going to hear the testimony and 366 1 might alter or consciously or subconsciously change 2 their testimony to fit the need of the particular 3 moment. That's always a risk. 4 That's also -- I'm aware that when 5 the fact-finder sees that person sitting in court 6 hearing the testimony, as the jury will in this 7 case, it might actually cause the jury to give less 8 weight to that person's testimony than they 9 otherwise might, because they know that person sat 10 here and heard the testimony of all the other 11 witnesses. So that kind of cuts both ways, @ 12 actually. 13 Because of the technical nature of 14 the computer evidence in this case that will be 15 presented and because of the complex nature of the 16 investigation and the types of information that 17 I've heard previously during the motions, that is, 18 I've already said the word "technical," but 19 technical and not information that is commonly 20 known or understood by people who aren't very 21 active in the computer field, it would certainly be 22 helpful to either counsel, to each counsel, to have 23 someone in court to assist them in hearing the 24 testimony of witnesses and then to interpret that 25 for counsel and assist them in asking additional 367 1 cross-examination questions or redirect or 2 summoning other witnesses later on during the trial 3 or for the purpose of understanding and arguing the 4 case as well. 5 Having said that, nearly any expert 6 would qualify to assist counsel in that regard. 7 Wouldn't have to be Mr. Cower. 8 Mr. Tintera, I expect, I haven't 9 heard this from you, but I don't think -- you would 10 like to have Mr. Cower here because he's intimately 11 aware of the facts involved in this case as well 12 and how it all relates to this computer technology. 13 MR. TINTERA: Your Honor, he's the 14 person that has assisted me in understanding as 15 best I can the facts of this particular case. He 16 is the most knowledgeable of all the people I have 17 access to to be able to assist me and has, I think, 18 the fullest, broadest picture of what occurred here 19 based on his knowledge of computers. So, yes, the 20 answer to that is he's the person. Although there 21 may be other people available, there may be other 22 people that could do that, he's the one who is 23 available to me to assist me. 24 THE COURT: Well, my tentative 25 ruling is he may be present in court during those 368 1 portions of the trial when you can argue and I'm 2 convinced that it would be helpful. He doesn't 3 have to be here for the whole thing. 4 MR. TINTERA: Could that include 5 defense counsel's opening statement, Judge? 6 THE COURT: Yes. Would somebody try 7 to find over the noon hour a definition of "victim" 8 for me? In my mind, he may also qualify as a 9 victim in this case because of his position there 10 at Intel. 11 When I say "victim," alleged victim. 12 Obviously there hasn't been a decision made yet 13 that there is a victim. I'd like to tie it up with 14 a ruling on that aspect of it as well. I'll look 15 for it over the noon hour but, Mr. Tintera, could 16 you try to find that for me? 17 MR. TINTERA: I think I have that in 18 my office. 19 THE COURT: Unless there is 20 something else, we're in recess until 1:30. 21 MR. SUSSMAN: Your Honor, just 22 before we finish, how do you want to deal with the 23 issue of reviewing the videotape? I brought it 24 here so it's available for Mr. Tintera to review 25 today. 369 1 THE COURT: I don't want to do it 2 over the noon hour, but might do it -- we'll see 3 how it goes today or tomorrow morning. 4 MR. SUSSMAN: To be perfectly 5 candid, I'm prepared -- we're prepared to start the 6 trial here today and go ahead with this, but seems 7 to me we have been touching on two real critical 8 potential discovery issues that are -- and witness 9 availability issues that I think can have a 10 significant effect on the case. 11 The State is concerned about this on 12 discovery grounds and the State is not, on this 13 area -- and we are not -- able to present Tanya 14 Herlick's testimony by telephone or other means. I 15 would rather ask the Court, before we bring a jury 16 in, to simply -- to postpone the trial so that the 17 State can look at this thing and the Court can 18 adequately look at this and examine it and have 19 plenty of time to rule on this without the pressure 20 of a jury sitting out there and make appropriate 21 rulings on that so we can have this witness that we 22 think is critical to be available to testify. 23 THE COURT: It's unlikely that I'm 24 going to continue this case. It's been set off for 25 a long time. We have set this over for this time 370 1 to begin and that's my intent now. 2 Issues regarding the admissibility 3 of the tape and the availability of witnesses is 4 something we will have to try to work through, but 5 we're going to proceed now and start picking the 6 jury after lunch. I'll view that tape as soon as I 7 can. 8 There has to be a solution that 9 works for everybody with regard to the two major 10 matters, one with regard to the tape, and my main 11 concern which has to do with this witness who is in 12 someplace, where is it? 13 MR. SUSSMAN: Israel. 14 THE COURT: I'd ask counsel -- 15 you've worked fine together. I don't see a great 16 breakdown in the relationship here. As we get 17 closer to trial and these things occur, I'd ask you 18 to confer over the noon hour to see if you could 19 resolve this. We're going to begin with the jury 20 right after lunch and I'll take a look at that tape 21 and resolve that issue if I have to. 22 Anything else? 23 MR. TINTERA: No. Thank you. 24 MR. SUSSMAN: No, Your Honor. 25 THE COURT: We're in recess. 371 1 MR. TINTERA: Would it be 2 permissible to leave some of the things in the 3 courtroom? 4 THE COURT: Sure. We'll lock it up 5 for an hour, so if there is anything you want to 6 refer to during the noon hour, you need to take 7 them with you. Thank you. 8 (Luncheon recess.) 9 (The jury selection process 10 began and continued 11 throughout the afternoon.) 12 (The court was in recess 13 for the evening.) 14 15 16 17 18 19 20 21 22 23 24 25